(CN) - A federal judge refused to dismiss a civil rights complaint against six UC-Berkeley administrators by of students and activists who say police brutalized them in breaking up an "Occupy Cal" protest.
Twenty-four students and activists sued UC-Berkeley administrators and police in December 2011 for the violent response to an "Occupy Cal" encampment in November that year.
Protesters said they "were forcefully jabbed in their chests, stomachs, and groins, clubbed in the face, yanked by their hair, and beaten while lying on the ground."
Attorney Monica Smith told Courthouse News in 2011 that the police actions during the protest stemmed in part from fact that UC-Berkeley Chancellor Robert Birgeneau felt "vulnerable and exposed" by the protests, which called attention to tuition hikes and the so-called privatization of the university. Birgeneau is the lead defendant.
"The evidence of the lawsuit will show why he needs to resign," Smith said.
The UC-Berkeley administration initially defended the police actions, but on Nov. 22 that year, Birgeneau issued a public apology for his role in the use of force.
"I sincerely apologize for the events of November 9th at UC-Berkeley and extend my sympathies to any of you who suffered an injury during these protests," Birgeneau wrote. "As chancellor, I take full responsibility for these events and will do my very best to ensure that this does not happen again."
Smith, who represents the protesters, said "an apology is not enough" and that Birgeneau should "own up to what he did and step down."
"If he really is sorry, he will resign," Smith told Courthouse News at the time.
"He needs to say unequivocally and plainly, not ambiguously, that he was wrong, and he needs to pay money to the actual students who were painfully injured."
Four defendants, including Oakland Police Chief, were dismissed from the case in May 2013.
Birgeneau and six other administrators sought dismissal of the civil rights claims against them, which U.S. District Judge Yvonne Gonzalez Rogers largely denied last week.
Seeking dismissal were Birgeneau, Chancellors George Breslauer, Harry Le Grande, Linda Williams, John Wilton and Claire Holmes, and Chief of UC-Berkeley Police Mitchell Celaya.
They failed to persuade the judge they were not potentially liable for the officers' actions.
"On the excessive force and false arrest claims, plaintiffs have alleged sufficient facts to support a theory of culpability against certain of the administrators based upon their: (1) being aware that of the conduct of the afternoon raid, including that police had injured protestors, under circumstances giving rise to a plausible inference that the response was an excessive use of force; and, nevertheless, (2) ordering police, or allowing them to continue with, a use of force and arrests in the evening raid not warranted under the circumstances," Gonzalez Rogers wrote.
The judge noted that Birgeneau had emailed four other administrators after one of the police raids to say "it is critical that we do not back down on our no encampment policy."
Rogers found the plaintiffs did not present enough details to support their claim that John Wilton, vice chancellor for administration and finance, was aware of the administrators' actions; she dismissed Wilton as a defendant on the 4th Amendment claims.
The administrators argued that the police actions were to stop an encampment - not to suppress speech, Rogers found the plaintiffs may have a case for viewpoint discrimination under the First Amendment.
"Plaintiffs allege that Chancellor Birgeneau, along with Breslauer, Holmes, Williams, Le Grande, and Celaya, were all in the same administrative positions seventeen months earlier when an on-campus encampment was permit[ed] for several days in connection with a protest opposing Arizona's anti-immigrant SB 1070 law. That encampment in May 2010 included tents, sleeping bags and tarps," Gonzalez Rogers wrote.
"However, upon hearing that a protest and encampment in solidarity with the Occupy movement was planned, Birgeneau and CMET [the Crisis Management Executive Team] immediately began planning a response that would include a strict no-encampment policy."
Gonzales Rogers ordered the administrators to file their answer to the complaint by Feb. 11.
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