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Occupy Berkeley Civil Rights Case Set for Trial

SAN FRANCISCO (CN) - A federal judge delivered a mixed bag of rulings in Occupy Berkeley protesters' civil rights claims against UC-Berkeley administrators, paving the way for a November trial.

Yvette Felarca et al. say they were engaged in a peaceful protest of tuition hikes and 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 pushed and jabbed at them, hit some over the head with batons and pulled some out of the group and arrested them, the students say.

The officers then removed protesters' tents and continued to beat them. At least 2,000 people amassed before the officers "ceased their attack on the protesters," according to the lawsuit.

Twenty-nine protesters sued school police, the Alameda County Sheriff's Office and the Oakland Police Department for First Amendment violations, excessive force, false arrest, retaliatory prosecution and abuse of process. They also sued several university officials, claiming they set in motion or ignored the police action that caused their injuries.

U.S. District Judge Yvonne Gonzalez Rogers dismissed the case in September 2014, with leave to amend.

On Wednesday, Rogers granted summary judgment to the university officials on the First Amendment claims, which were grounded on the theory that the university's "no-camping" policies violated their right to free speech, since the tent was a well-known symbol of the Occupy movement.

But Rogers denied summary judgment to several of the defendant officers on the protesters' claims for excessive force.

"While defendants describe certain plaintiffs, and the protestors generally, as aggressive and threatening, the objective evidence of immediate danger to the officers is equivocal," Rogers wrote in the 38-page ruling.

"And, as to the majority of the plaintiffs here, defendants offer no specific evidence that they presented a threat to any officer."

Rogers also found that since evidence indicates that the protesters' resistance was "limited to refusing to move, linking arms and yelling at officers," the officers cannot argue that the protesters demonstrated "active resistance."

There are triable issues of fact that preclude a finding of qualified immunity for the officers, Rogers said.

She also rejected the university administrators' contention that they had no reason to believe that enforcing the no-encampment policy would lead to use of excessive force, as police response to a similar, previous protest had led to injuries and concerns that warranted an investigation.

Ronald Cruz, who represents the protesters, called Rogers' ruling "a victory for the new student and civil rights movement."

"We are really looking forward to putting the administrators and police on the witness stand and holding them publicly accountable," Cruz said in a statement.

"Unleashing billy clubs against peaceful student protesters at UC-Berkeley is indefensible. The students' courage and determination made UC-Berkeley, once again, a center for the student movement and a beacon for the defense of public education, equality and democracy."

The defendants' lead counsel did not immediately respond to an email requesting comment on Thursday afternoon.

The case is set to go to trial on Nov. 7.

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