No class certification for those subjected to tear gas in Oakland

A magistrate judge on Monday denied class certification of a federal civil rights lawsuit against the city of Oakland over the police use of tear gas and rubber bullets during protests and riots in the wake of the killing of George Floyd by a Minneapolis police officer.

U.S. Magistrate Judge Joseph C. Spero found that protesters suing the city should not proceed as a class because there's no evidence that every instance in which an officer deployed tear gas was the result of a common policy at the Oakland Police Department. The lawsuit raises a "multitude of individualized issues about the circumstances surrounding the use of tear gas," he wrote.

A coalition of social justice groups and demonstrators accused Oakland of violently breaking up protests between May 29 and June 1 last year using weapons like tear gas, rubber bullets and flash-bang grenades in violation of court order stipulating that physical force can only be used as a last resort.

Spero issued a preliminary injunction barring the police department from using rubber bullets and restricting the use of tear gas to only when there's an imminent threat of harm and after a verbal warning is given. He ordered Oakland to ensure that its mutual aid partners understand what weapons are banned and not to use certain weapons and crowd control tactics unless authorized by a commander at the police department.

The order led to the Alameda County Sheriff's Department and other agencies stating that they would no longer send officers to help the city during demonstrations or riots because the injunction limited their ability to safely do their jobs.

The lawsuit alleging constitutional violations seeks to certify classes of protesters who inhaled tear gas during the demonstrations. Anti Police Terror Project v. City of Oakland, CV20-03866 (N.D. Cal., filed June 11, 2020).

But Spero was skeptical as to whether the use of tear gas was because of a common policy by the police department as alleged in the complaint.

"Plaintiffs have not provided sufficient evidence at this point that all of the uses of tear gas, whether by OPD or the mutual aid partners, are the result of a common policy or course of conduct at the command staff level," he wrote.

The judge said he may have to assess the individual decisions of officers over why they deployed tear gas because the city did not directly order its use. He concluded, "The individualized issues that would have to be adjudicated for the broad class plaintiffs now propose would overwhelm the common issues of fact or law."

Spero also questioned whether the lawsuit's proposed class is overly inclusive. He noted that the class improperly includes protesters who were injured by tear gas deployed by the city's mutual aid partners rather than solely those injured by Oakland Police Department officers.

"Furthermore, the definition of the class is so broad that it includes even individuals who may not have been demonstrating peacefully," he wrote.

Officers were alleged to have broken the terms of the injunction during August and September protests by refusing to warn protesters before deploying tear gas.

Oakland Police Chief LeRonne Armstrong has acknowledged that there were over 30 uses of force during the June 1 protest that were found to be out of compliance with department policy. He stated that officers would undergo additional training in crowd control and that supervisors would no longer be able to use tear gas.