Officers involved in Occupy Cal protests entitled to qualified immunity, 9th Circuit says

Police officers and university administrators involved in dispersing crowds during Berkeley's 2011 Occupy Cal protests are entitled to qualified immunity for the use of batons against students, the 9th U.S. Circuit Court of Appeals has ruled.

On Thursday, a three-judge panel of the court reversed U.S. District Judge Yvonne Gonzalez Rogers' decision to proceed to trial in a case claiming officers used excessive force by using batons to break up a group of protestors who had erected an encampment of tents on campus, despite being told that doing so was in violation of university policy.

Senior Circuit Judge J. Clifford Wallace, who authored the opinion, said jabbing protestors with batons constituted a "minimal" use of force, noting the plaintiffs in the case who brought direct excessive force claims did not require medical attention after their altercation with officers. Felarca v. Birgeneau, 2018 DJDAR 5109 (9th Cir. May 31, 2018).

Officers' use of an overhand baton strike on one plaintiff was justified, Wallace said, because he had resisted police demands by shaking his fist and throwing leaves, then pushing and kicking officers.

At the district court, the judge described the protester's actions as "defensive," according to the opinion.

Wallace disagreed.

"The officers were entitled to use the minimal force they did to move the crowd in order to gain access to the tents erected in violation of university policy," he wrote.

Circuit Judge Paul J. Watford, who wrote a partial separate concurrence, disagreed with Wallace's Fourth Amendment interpretation, saying the judge had misinterpreted the level of force used during the altercation.

"[T]he officers used excessive force when they struck plaintiffs with batons solely for the purpose of dispersing the crowd," Watford wrote. "The level of force used here was intermediate, not minimal, and neither plaintiffs nor the other protestors posed a threat to the safety of the officers (or anyone else) that could justify the use of intermediate force."

Watford agreed, though, that the officers were entitled to qualified immunity because 2011 case law did not establish the conduct was illegal.

Attorneys representing UC Berkeley leadership and police officers commended the court's decision.

"The campus is satisfied with this outcome," commented J. Daniel Sharp, a partner at Crowell & Moring LLP who represented the school's leadership.

Russell M. Perry, a partner at Rains Lucia Stern St. Phalle & Silver PC who represented a line officer involved in the scuffle, said the court's ruling was "excellent."

"The court recognized that Officer Lachler's use of force was reasonable, and thus lawful, because she used only minimal force in furtherance of the university's legitimate interest in not permitting 'organized lawlessness,'" Perry said in a statement, referring to his client.

"Officer Lachler did exactly what she was trained to do: Her use of force was at the lowest possible level, did not result in injury to any of the complaining plaintiffs, and came only as a last resort following the protestors' refusal to obey dispersal commands," Perry added.

Attorneys for the 21 plaintiffs on appeal did not respond to requests for comment by press time.

The protests at issue in the case occurred after a series of marches and sit-ins that spread across the country in late 2011 after activists took to Wall Street in New York, objecting publicly to income disparities.

Protesters at Berkeley, inspired by the Occupy Wall Street movement, expressed concerns about economic issues generally but targeted some of their message to issues they had with how UC Berkeley's administration was running the school.

Plaintiffs in the case also named college administrators, such as former Chancellor Robert J. Birgeneau -- who left the post in 2013 -- as defendants in the suit, alleging that as supervisors they could be held responsible for the baton use.

Wallace concluded Birgeneau and others had not "set in motion" acts that caused officers to inflict allegedly unconstitutional injuries.

Lower-ranking university officials were not responsible for the police response, the panel ruled, because they were not in the chain of command. And supervising police officers, too, were entitled to immunity, the court said, because plaintiffs who had been injured and required medical attention were unable to establish that case law when the incident happened addressed injuries like theirs.

Wallace's opinion did not announce whether baton strikes that caused the students injuries requiring medical assistance violated the Fourth Amendment.

Senior District Judge W. Louis Sands of Albany, Georgia, sitting by designation, joined Wallace's opinion in full.