Judge Dismisses Berkeley Occupy Civil Rights Case

OAKLAND, Calif. (CN) - A federal judge upheld the dismissal of false arrest claims related to a 2011 Occupy protest at the University of California, Berkeley but left the door open for the plaintiffs to amend the claims.

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, the officers allegedly pushed and jabbed at them, and hit others over the head with their batons, before pulling some out of the group and arresting them.

The officers then allegedly removed tents that had been set up, and continued to beat the protesters. At least 2,000 people allegedly amassed before the officers "ceased their attack on the protesters," according to the suit.

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 alleged beating of protestors, 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, finding that since the alleged arresting officer was from the university police department, the sheriff's deputies "cannot be held liable without allegations of individual participation in the unlawful conduct."

That same day the judge tossed false arrest claims against UC Berkeley Lieutenant Mark DeCoulode, finding that the plaintiffs did not allege that DeCoulode arrested anyone but instead asserted that he grabbed the hair of one protester and slammed him to the ground.

The plaintiffs refiled their false arrest claims against the officers without required leave of the court, admitted in court filings that they have no claim against Sheriff's Deputy Garcia, and, according to Rogers, the amendments in their amended complaint "did not include specific allegations supporting a claim of false arrest against [Deputy Sheriff McClean] Obichere."

Neither the complaint nor the ruling provides the first name of Officer Garcia and available records indicated that more than one deputy with that last name works for the department.

The judge also found that the plaintiffs failed to move for leave to amend claims against DeCoulode before refiling, as required by the prior order.

Rogers denied the plaintiffs' subsequent motion for leave to amend, finding that the motion "fails to explain adequately the basis for amending to add allegations listed therein."

Rogers gave the plaintiffs until September 23 to file a new motion to amend that must include new allegations, why the new allegations resolve previous defects, why the plaintiffs delayed in making the allegations, and facts demonstrating good cause for permitting the amended claims.

Ronald Cruz, attorney for the plaintiffs including lead plaintiff Yvette Felarca, told Courthouse News that the dismissal did not decide the substantive issue of "whether those officers would stand to answer claims on false arrest but whether our amended complaint would be allowed to stand," calling the dismissal "procedural."

The attorney from Scheff, Washington & Driver in Oakland added that the plaintiffs would move for leave to amend the allegations and that "it is completely reasonable for the complaint to be amended when new facts are ascertained."

Janine Scancarelli from Crowell & Moring in San Francisco represents DeCoulode while Garcia and Obichere are represented by Lynne Goldsberry Stocker from Andrada & Associates in Oakland.

Neither Scancarelli nor Stocker replied immediately to requests for comment from Courthouse News Service.

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