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Berkeley Protesters’ Free Speech Case Advanced

SAN FRANCISCO (CN) - A federal judge on Friday refused to dismiss claims that Berkeley and Hayward police violated the First Amendment rights of demonstrators and journalists during a December 2014 protest.

However, the judge rejected state law and supervisor liability claims against Berkeley and Hayward, dismissing the allegations with leave to amend.

Lead plaintiff Curtis Johnson sued the cities of Berkeley and Hayward, the Berkeley city manager, and police chiefs and officers from both cities in November 2015.

Johnson claimed police unlawfully arrested and assaulted demonstrators and reporters covering a Berkeley protest over the decision not to indict a white New York police officer in the choking death of Eric Garner on Dec. 6, 2014.

"The Berkeley police responded brutally, clubbing peaceful protesters and journalists, often from behind, some in the head, indiscriminately and unnecessarily, and using profligate amounts of teargas without justification," nine protestors and two journalists claim in their lawsuit.

The plaintiffs say Hayward police helped Berkeley officers by shooting nonlethal but "highly dangerous specialty impact munitions at non-violent demonstrators" and employing other forms of "unlawful excessive force."

U.S. Magistrate Judge Jacqueline Scott Corley found protestors could not hold the Berkeley city manager, police chiefs and lieutenants liable for the actions of subordinate officers because they failed to point to a specific training method, policy or event that caused the allegedly unlawful conduct.

"Allegations of inadequate or improper training on their own are insufficient unless accompanied by 'facts about the officers' training or supervision" and specifics regarding why 'any such training was deficient," Corley wrote in one of two rulings issued on March 11.

The judge also tossed claims under California's Ralph Civil Rights Act, saying the plaintiffs failed to show they were targeted specifically for their political beliefs or other "protected characteristics," such as race or gender.

Their allegations "do not plausibly suggest that the Berkeley defendants were biased against or had an animus toward plaintiffs because of their political affiliation with the Black Lives Matter movement," Corley stated in her ruling.

But the judge refused to dismiss First Amendment claims brought by all but one plaintiff.

Ten plaintiffs adequately alleged they were assaulted or arrested specifically because they were engaging in the First Amendment-protected activities of protesting or attempting to document the protest, Corley wrote.

One plaintiff, Monica Powers, said she was merely standing with a crowd near campus when police "approached, struck her repeatedly and arrested her."

Corley said Powers failed to allege the officers were motivated by a desire to chill her First Amendment rights when they reportedly assaulted and arrested her.

The judge also threw out the plaintiffs' Fourteenth Amendment claim, deeming it duplicative of a Fourth Amendment excessive force claim.

Because Hayward and Berkeley did not move to dismiss the excessive force claim, Corley declined to throw out claims of negligence based on the officers' alleged use of excessive force.

All of the tossed claims were dismissed with leave to amend, except the Fourteenth Amendment claim and claims against the Berkeley city manager, police chiefs and lieutenants in their official capacities.

Suing those defendants in their official capacities is same as suing the cities themselves, which makes the claims redundant, Corley said.

The plaintiffs have until March 25 to file an amended complaint.

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