Claims Whittled in Occupy Berkeley Protest

OAKLAND, Calif. (CN) - A federal judge trimmed some excessive force claims from a 2011 Occupy protest at UC-Berkeley, upheld some claims against supervisors and denied protesters leave to amend.

The protesters claimed they were engaged in a peaceful protest of tuition hikes and the privatization of public education when officers in riot gear raided their Sproul Hall encampment on Nov. 9, 2011 for the second time that day.

When protesters linked arms to face the police, they say, the officers pushed and jabbed at them, hit some of them over the head with batons, then pulled some out of the group and arrested them.

The officers removed tents and continued to beat protesters - at 2,000 people had gathered before the officers "ceased their attack on the protesters," according to the lawsuit.

A group of 29 then sued school police, the Alameda County Sheriff's Office and the Oakland Police Department for excessive force, false arrest, retaliatory prosecution and abuse of process. They said university officials set in motion or ignored the police action that caused their injuries.

U.S. District Judge Yvonne Gonzalez Rogers in February 2013 found the allegations sufficient against some officers who were directly involved in the alleged beatings, but she dismissed claims against supervisors and others not directly involved.

In September 2013 Rogers tossed false arrest claims against four officers from the Alameda County Sherriff's Office and a UC Berkeley lieutenant.

In September this year Rogers upheld the dismissal of false arrest claims against the lieutenant and two other officers and ordered the plaintiffs to file a new motion to amend.

In her latest ruling, on Dec. 12, Rogers found that the protesters' allegations do not put Alameda County Sheriff Capt. Madigan at the scene. There are no indications Madigan made any announcements to the crowd or was aware of what was happening on the ground. Allegations that other officers acted under Madigan's orders were "insufficient" to allege that he set in motion, refused to stop or acquiesced in the use of excessive force or false arrests, Rogers found.

The judge also ruled that the plaintiffs could not put UC Berkeley Officers Roderick or Suezaki at the scene, and dismissed excessive force claims against them.

Finding that the protesters knew the identities of other officers years ago but chose not to name them in the lawsuit until this year, Rogers tossed excessive force claims against six other university police officers.

Rogers refused to dismiss excessive force claims against UC Berkeley Officer Tucker, finding plausible claims that he pushed protesters, hit one and did not stop the alleged unconstitutional actions of his subordinates.

While the allegations against Alameda County Sheriff's Sgt. Rodrigues are also general, the plaintiffs specifically allege that he jabbed a plaintiff repeatedly and forcefully, which Rogers found sufficient to allege a claim for excessive force and plausibly infer that Rodrigues was at the scene and aware of the action of other officers, over whom he exercised a supervisory role.

The judge denied the protesters' motion for leave to amend the suit for the fourth time, finding the plaintiffs should have made some amendments sooner but even if she were to grant leave, any attempt to amend would be futile.

Neither the complaint nor the ruling provides the first name of the officers, and plaintiffs' attorney Ronald Cruz did not have the names either.

Cruz told Courthouse News in a telephone interview: "We disagree with the judge's decision but we are also still pressing forward with the main part of our case, putting the university administrators and police on trial for violently repressing peaceful demonstrators for public education."

Cruz works with Scheff, Washington & Driver, in Oakland.

Janine Scancarelli, with Crowell & Moring in San Francisco, represents UC Berkeley Chancellor Birgeneau, the lead defendant, and others. Scancarelli did not reply to a request for comment from Courthouse News.

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