May 31, 2018
Photo: Noah Berger / Special To The Chronicle. Police surround an Occupy Cal encampment after issuing a five minute warning to vacate on Thursday, Oct. 17, 2011, in Berkeley, Calif. At right, UC Berkeley student Alex Kim was one of two protesters arrested after refusing to leave.
Saying UC Berkeley police were entitled to act against “organized lawlessness,” a federal appeals court dismissed a lawsuit Thursday by students and activists who accused officers of using excessive force when they struck and jabbed them with their clubs during an Occupy Cal rally in 2011.
Thousands of demonstrators gathered at Sproul Plaza on Nov. 9, 2011, to protest rising tuition and University of California policies, and linked arms when police in riot gear moved in to dismantle tents they had set up. Videos that drew national attention showed officers jabbing protesters with clubs and yanking them by the hair. Several said they were clubbed on the arms and body. A few demonstrators were treated for bruises, and one for a cracked rib. At least 36 were arrested.
More than 20 demonstrators sued police and university officials, saying then-Chancellor Robert Birgeneau and his staff had given police a free hand to use force in breaking up unauthorized encampments. U.S. District Judge Yvonne Gonzalez Rogers ruled in 2014 that the suit could go to trial, saying the protesters’ claims, if proven, could show that Birgeneau had tacitly approved a “violent response from the police.”
But the Ninth U.S. Circuit Court of Appeals in San Francisco said none of the allegations in the suit, even if true, would show that police had used excessive force or violated any protesters’ rights.
In most of the incidents, police used only “minimal force,” Judge J. Clifford Wallace said in the majority opinion, noting that officers had not struck anyone in the head. He said one demonstrator engaged in “acts of provocation” by shaking his fist at officers and throwing leaves in their faces and that school officials had “a legitimate interest in applying minimal force to maintain order and enforce university policy.”
In asking police to remove the tents, Wallace said, UC administrators “had no reason to assume that police would use force beyond the bounds of (official) policy.” And he said an officer who clubs a demonstrator’s body or limbs “for the purpose of moving a crowd actively obstructing the officer from carrying out lawful orders in a challenging environment” does not violate any “clearly established rights,” the legal standard for a suit against police.
W. Louis Sands, a federal judge from Georgia temporarily assigned to the appeals court, joined Wallace’s opinion. The third panel member, Judge Paul Watford, said he believed the officers had used excessive force to break up a largely peaceful protest and remove tents that “weren’t harming anyone.”
But he agreed with Wallace that the law and court rulings as of November 2011 had not “clearly established” that police were acting illegally.
“The decision is wrong and we will appeal,” said a lawyer for the demonstrators, Ronald Cruz, from the nonprofit United for Equality and Affirmative Action.
UC Berkeley spokesman Dan Mogulof said, “The campus is satisfied with this outcome.”
The ruling did not affect the demonstrators’ ongoing suit against seven Alameda County sheriff’s officers who worked alongside campus police at the 2011 protest.