UC-Berkeley Police Chief Still on the Hook

     SAN FRANCISCO (CN) - A federal judge refused to grant summary judgment to a UC-Berkeley police chief in a civil rights lawsuit from people who say the administration's decision to break up a protest of budget cuts and arrest them in 2009 violated their constitutional rights.
     U.S. Magistrate Judge Laurel Beeler found Berkeley did not violate the plaintiffs' Fourth Amendment rights by removing them from a campus building because, contrary to what the protestors claimed, the administration had not given them permission to occupy the building for a week.
     Lead plaintiff Callie Maidhof et al. participated in a weeklong teach-in, or "Open University," in December 2009. In 2011, they sued two university officials, the campus police chief and an officer on behalf of the 66 students who were arrested.
     The plaintiffs say their arrest was a violation of their Fourth Amendment rights because they had permission from the University of California to occupy a campus building as part of the protest.
     Open University was called for the week before final exams, and university officials decided not to prevent students from setting up the event in Wheeler Hall.
     Wheeler Hall was a center of the Free Speech Movement in 1964, and has frequently been occupied by student activists ever since.
     "The students planned to discuss the ongoing university budget cuts, tuition increases, and the impact of lack of funding on the state and education in general," according to the 12-page civil rights complaint.
     "The Open University was intended to highlight the skewed priorities of the University of California system."
     Students began occupying Wheeler Hall on Monday, Dec. 7, 2009, and police officers agreed to let them stay in the building overnight if they kept the area clean, let janitors enter the building, and did not disrupt study sessions.
     The university agreed to let students occupy the building until Saturday, but upon learning of a concert scheduled for Wheeler Hall, officials held a meeting to discuss options.
     "During this meeting, university officials decided to ignore their previous agreement with the students and have all the participants in the Open University arrested," according to the protesters' complaint.
     On Saturday night, an officer read a dispersal order to the students, telling them to leave the building.
     "This was the same dispersal order that had been read on other nights, however, the police indicated that it was a formality and that the students' activities were sanctioned by the administration," the complaint states.
     Apparently not. Police sealed off Wheeler Hall sometime between 4 and 5 a.m. and began handcuffing students as they slept, arresting 66 people.
     "All 66 students were herded into the basement, processed, interrogated, and, after several hours, transported to the Alameda County Jail instead of being issued citations and released," the complaint states.
     The plaintiffs claim: "The policy of jailing nonviolent protesters is punitive and a violation of the protesters' rights to freedom of speech and assembly."
     They sought punitive damages for constitutional violations and "damage to reputation, humiliation, mental anguish and emotional distress."
     U.C. Chancellor Robert Birgeneau, Vice Chancellor for Student Affairs Harry LeGrande and former U.C. Berkeley Chief of Police Mitchell Celaya sought summary judgment, which the court granted in part last week.
     The plaintiffs argued that because they had permission to occupy the building, which Chief Celaya knew, it was a violation of their Fourth Amendment rights to arrest them.
     But Judge Beeler was not persuaded, saying evidence showed the university planned to monitor the occupation.
     "The problem is that the facts do not show permission," Beeler wrote in her order granting in part and denying in part the defendants' motion for summary judgment. "They show that the administration decided to continue to give dispersal orders each night that week after Wheeler closed at 10 p.m."
     Beeler noted that the administration knew that someone wrote on Twitter that "the UC Berkeley administration has given us Wheeler Hall through Friday. We've won, now let's party."
     The judge added: "The facts thus show only tolerance and monitoring of the situation, not a license or permission."
     The administration was concerned after learning that protesters planned an "all-night dance party" to last "from 8 p.m. till the cops kick in the door," the judge wrote.
     She found no evidence that Vice Chancellor LeGrande knew the arrests would be unconstitutional.
     In May 2010, the chancellor wrote in an email that U.C. Berkeley would not pursue actions against the protesters due to "the genuine confusion on the part of some students regarding dispersal orders," Beeler noted.
     But Beeler declined to grant Police Chief Celaya's motion for summary judgment on the protesters' First Amendment claim.
     Calling the decision "a close call," Beeler said there was evidence to suggest that Celaya retaliated against the protesters by sending them to a jail rather than citing and releasing them.
     Celaya had sent an email saying the "good news is that the arrested protestors are at Santa Rita [Jail] getting booked so they won't be able to participate in the rally," according to court documents.