UC Berkeley Administrators Ask Court to End Brutality Suit

Julia Cheever (BCN)
Wednesday September 13, 2017 - 03:36:00 PM

Lawyers for protesters and attorneys for University of California at Berkeley administrators argued before a federal appeals court in San Francisco today on whether the protesters can sue over alleged police brutality in a 2011 campus confrontation. 

The administrators are asking the 9th U.S. Circuit Court of Appeals to overturn a ruling in which U.S. District Judge Yvonne Gonzalez Rogers said last year the protesters' lawsuit could proceed. 

The demonstration by hundreds of students and non-students took place on the Berkeley campus on the afternoon and evening of Nov. 9, 2011, at the time of the Occupy movement in dozens of cities around the nation. 

As the day wore on, some protesters began erecting small tents, which campus police moved in to take down. 

Twenty-one protesters claim in a civil rights lawsuit filed in 2011 that campus police used unconstitutional excessive force by allegedly assaulting them with batons. The administrators maintain the protesters refused orders to disperse and "actively resisted" police efforts to reach the encampment. 

The defendants in the case are former Chancellor Robert Birgeneau, four other present and former administrators, former campus police Chief Mitchell Celaya and two other police officials. 

Birgeneau was in Japan at the time but, according to preliminary evidence in the case, kept in touch with the other top administrators by email and instructed that the police should "take down all tents immediately" but should not use tear gas or pepper spray. 

The campus officials said they established a publicly announced no-encampment rule because they feared a repeat of a previous protest in which tree-sitters opposing an athletic center expansion remained encamped in the trees for 19 months. 

The administrators contend they should be protected from the lawsuit under the doctrine of qualified immunity. Under that doctrine, set by the U.S. Supreme Court in 1982, government employees can't be sued for conduct while on the job unless they violated a "clearly established" right. 

Daniel Sharp, an attorney for the university, told a three-judge panel, "There's no duty on the part of administrators to allow mob rule on the campus."  

Shanta Driver, representing the protesters, argued that although the administrators had left the campus by evening, they should be held responsible for not taking action to stop the alleged violence. 

"They want to make sure they are not present when some of the brutality took place," Driver told the court. 

At least one judge on the panel, Circuit Judge Paul Watford, seemed to favor allowing the lawsuit to proceed. 

Watford cited a sworn statement that a protester was hit on the head, and said that under court precedents as of 2011, "It was clear that you can't use potentially deadly force. 

"Getting clocked in the head is potentially deadly force," he said. 

The panel took the case under submission and did not indicate when it will issue a written opinion. 

If the panel allows the lawsuit to go proceed, a jury in Gonzalez Rogers' court would then determine at a trial whether the police in fact used excessive force.