On May 31, 2018, the Ninth Circuit Court of Appeals issued a ruling of significant importance to peace officers tasked with gaining compliance with lawful orders during mass crowd control situations. In a published opinion titled Yvette Felarca, et al. v. Robert J. Birgeneau, et al. (2018 9th Cir.) __ F.3d __, the Ninth Circuit overturned a federal district court’s denial of summary judgment for University of California, Berkeley Police Officer Samantha Lachler, by finding that Officer Lachler did not engage in excessive force. The Court’s decision reaffirms the burden imposed on plaintiffs alleging a peace officer is not entitled to immunity from suit, emphasized that an analysis of force must consider not only the type but the amount of force deployed, and acknowledged the significance of considering an officer’s training and the employing department’s policies when determining the reasonableness of force.
The case arose from a mass-protest on the UC Berkeley campus in November of 2011. In the midst of the nationwide “Occupy Wall Street” movement, hundreds of protestors – some UC Berkeley students, some not – descended on the campus with the stated intent of erecting an “encampment.” University policy, however, clearly prohibited erecting campsites on school grounds. Prior to the protests, university officials circulated notices to the campus community reminding students, faculty, and other stakeholders of the no camping policy, and that the university intended to enforce that policy.
Undeterred by the university’s warnings, hundreds of protestors arrived on campus on November 9, 2011, and erected a set of encampments. University police read dispersal orders and dismantled the encampments. A few hours later, another encampment was erected. In response, Officer Lachler and her fellow special response team officers donned protective equipment and arrived at the scene of the new encampment intending to dismantle it. In a direct effort to thwart the officers’ intentions, the protestors linked arms in a “human chain” around the encampment preventing their advance. The commanding officer of Officer Lachler’s team read several dispersal orders, ordering the protestors to disperse and allow access to the unlawful encampment. The protestors refused to comply with those commands and remained in the linked configuration. Moreover, many of the protestors began to display aggressive behavior, shouting profanities at the officers, pulling tighter together by tensing their muscles, with some taking fighting stances in an obviously increasing state of hostility.
At this point, Officer Lachler and her fellow officers were outnumbered by hundreds of persons who had overtly refused to obey lawful dispersal orders. Their standing orders, however, were to gain access to and dismantle the unlawful encampment. With no other reasonable option, Officer Lachler’s team was ordered to deploy “tip strikes” with their batons and physically move the protestors to clear a path of access. Officer Lachler and her fellow officers interchanged orders to “Move Back!” with “tip strikes” against the torsos of the protestors. With this deploy of force, the protestors began to fight back by attempting to rip Officer Lachler’s baton away from her grip, hurling themselves forward towards the officers to admittedly “maintain their ground” against the officers’ approach, and spitting and throwing various objects towards the officers themselves.
Eventually, the officers were able to access the encampment and successfully dismantle it. The protestors returned that night to continue their protests, where another confrontation with police officers from various agencies ensued.
Shortly after the incident, dozens of plaintiffs sued university administrators and police officers in federal district court, including Officer Lachler, alleging the officers’ use of force was excessive. Attorneys Russell M. Perry and Zachery A. Lopes were retained by the university to defend Officer Lachler and five other police officers. As the case developed, Mr. Perry and Mr. Lopes successfully filed motions to dismiss five police officers from the lawsuit on various legal grounds, leaving only Officer Lachler remaining heading towards a jury trial.
In advance of trial, Mr. Perry and Mr. Lopes filed a motion for summary judgment in an attempt to get Officer Lachler dismissed from the lawsuit. The motion asserted both that her use of force was reasonable and therefore lawful, and that even if her force was not lawful she was entitled to “qualified immunity” because no existing case law clearly established that her use of the baton was unlawful in the circumstances she confronted. Generally, qualified immunity protects police officers from suit unless the law at the time of the challenged conduct clearly establishes that the conduct was unlawful. Qualified immunity provides a strong defense for peace officers accused of excessive force, as the United States Supreme Court has made clear that qualified immunity shields from liability “all but the plainly incompetent or those who knowingly violate the law.” (Mullenix v. Luna (2015) 136 S.Ct. 305, 308.) In other words, if the law existing at the time of the officer’s actions did not make sufficiently clear that “every reasonable [officer] would have understood that” the actions taken were unlawful, immunity attaches. (Id.)
Mr. Perry and Mr. Lopes argued that Officer Lachler did not use excessive force and was otherwise entitled to qualified immunity even if she had because: (1) there was no existing case law putting her on notice that her use of baton “tip strikes” to disperse a crowd of hundreds of noncompliant people to enforce a lawful order violated the Fourth Amendment; (2) her use of force complied with her training and the training guidelines set forth by the state’s Commission on Peace Officer Standards and Training; (3) she used only minimal force which did not cause injury to any of the plaintiffs; and (4) the university had a legitimate interest in enforcing its no-encampment policies, for which Officer Lachler could reasonably use the minimal force she did.
The federal district court disagreed. It denied Officer Lachler’s motion for summary judgment on both grounds, ruling that it could not state as a matter of law that her use of force was reasonable under the circumstances, and that existing law made it clear that deploying “baton blows” was unreasonable “in the absence of threat to the officer, a serious crime, or attempt to evade arrest.” With strong conviction that the district court failed to apply the law appropriately and grant Officer Lachler qualified immunity (at least), Mr. Perry and Mr. Lopes appealed the district court’s decision to the Ninth Circuit.
Before the Ninth Circuit, in addition to the arguments made at the district court level, they argued that police officers cannot be forced to relinquish the government’s important interest to enforce the law simply by the mass refusal to obey lawful orders. Indeed, what other course of action was Officer Lachler and her fellow officers supposed to take other than deploy minimal force in response to an uncertain and dangerous situation? After all, she and her fellow officers were vastly outnumbered by a hostile crowd which was overtly disobeying lawful orders to disperse with an intent to prevent the officers from completing their objective to enforce university policy. In such circumstances, Officer Lachler did only what any reasonable police officer would have done.
The Ninth Circuit agreed and overturned the district court, ordering it to enter summary judgment on behalf of Officer Lachler. Importantly, the Ninth Circuit found that Officer Lachler deployed reasonable and thus lawful force, making a determination on qualified immunity unnecessary because Officer Lachler did not violate any of the plaintiffs’ rights in the first instance.
The published decision is notable for a few reasons. First, it appropriately focuses on the amount of force Officer Lachler deployed, not simply the type of force deployed. This nuanced analysis of deployed force has not always been clear in existing case law, and is exactly what the district court had failed to do. As argued by Mr. Perry and Mr. Lopes, even though Officer Lachler deployed strikes with her baton, which generally is considered an “intermediate” force option, the manner of her baton use was the critical inquiry, which was minimal. The Ninth Circuit’s decision articulates this inquiry specifically, noting that “[w]hile baton blows are a type of force capable of causing serious injury,  jabs with a baton are less intrusive than overhand strikes.” The Ninth Circuit arrived at this conclusion after determining that the plaintiffs’ lack of injuries “suggest[s] a lesser degree of force,” and that Officer Lachler’s actions were consistent with her training and Department use of force policy. Second, the Ninth Circuit found that the university had a legitimate interest in enforcing campus policy and “quickly dispersing and removing lawbreakers,” because it was “not required to permit the ‘organized lawlessness’ conducted by the protestors.”
In the end, Officer Lachler’s actions were vindicated by the Ninth Circuit – she performed her duties exactly as she was trained to do in full compliance with the law. Mr. Perry and Mr. Lopes successfully defended all six police officer clients sued by the plaintiffs.
Russell M. Perry is a Partner with Rains Lucia Stern St. Phalle & Silver, PC, practicing with the Legal Defense of Peace Officers Group, representing peace officers in civil, criminal, and administrative disciplinary matters. Mr. Perry argued the case before the Ninth Circuit.
Zachery A. Lopes is an associate with Rains Lucia Stern St. Phalle & Silver, PC’s Collective Bargaining and Litigation groups, representing the firm’s labor association clients in all collective bargaining matters and civil and administrative litigation. Mr. Lopes also represents individual peace officers in civil litigation. Mr. Lopes drafted the briefs submitted to the district court and Ninth Circuit.