SAN FRANCISCO (CN) – Overturning a federal judge’s ruling, the Ninth Circuit held Thursday that police at a California university used an appropriate amount of force while dispersing protesters from their encampment.
A three-judge panel of the San Francisco-based federal appeals court ruled that University of California, Berkeley police officers who were sued for using excessive force on demonstrators during an Occupy Wall Street protest in 2011 acted appropriately and are entitled to qualified immunity.
“None of the plaintiffs suffered injuries from defendants’ blows that required medical treatment or kept him from returning to the protest,” U.S. Circuit Judge Clifford Wallace wrote for the panel in its 26-page decision. “Thus, we conclude that, even if the force used was of a type that is generally intrusive, the amount of force applied here was minimal.”
In a statement issued Friday, the protesters' attorney Shanta Driver said her clients will request an en banc hearing and are "fully prepared to take this all the way to the Supreme Court."
The case dates back to Nov. 9, 2011, when thousands of protesters descended on the UC Berkeley campus to protest tuition hikes, the privatization of higher education and other issues related to the Occupy Wall Street protests occurring nationwide at the time.
Like other demonstrations across the country, the Occupy Cal protesters at Berkeley were determined to build an encampment on the campus.
Concerned about health and safety implications, the university administration planned a pre-emptive maneuver to prevent the camp from being built.
On Nov. 9, after an initial protest without incident, some protesters began erecting tents. The police then gave a dispersal order and began taking down tents when their orders were ignored.
Later, more tents were set up and the police returned wearing riot gear. Police once again ordered the protesters to disperse and their orders were again ignored.
Officers formed a perimeter around the tent village so they could dismantle the tents undisturbed by protesters.
Some protesters grabbed batons and shouted at the police, and at least one demonstrator ended up in the hospital.
Police arrested at least 36 protesters throughout the day and into the night.
Protesters Yvette Felarca and 28 other plaintiffs sued the university police, the Alameda County Sheriff’s Office and the Oakland Police Department claiming they were subjected to excessive force, hit with batons and jabbed repeatedly.
In 2016, U.S. District Judge Yvonne Gonzalez Rogers denied the university police summary judgment, finding that evidence of their immediate danger at the protest was scant.
But the Ninth Circuit reversed Thursday and said the law not only requires courts to consider the immediate danger to the police, but also whether the force applied in a given instance is excessive.
Judge Wallace noted that courts are allowed to consider the injuries suffered by the alleged victims of excessive force.
“We would generally expect injuries from a forceful use of baton blows,” Wallace wrote, but none of the protesters who sued suffered injuries that required medical care or sidelined them during the protest.
Wallace added, “While the tents themselves posed no threat and the protestors appeared guilty only of misdemeanors, the university was not required to permit the ‘organized lawlessness’ conducted by the protestors.”
U.S. Circuit Judge Paul Watford disagreed with his colleagues’ attempts to minimize the injuries suffered by the protesters at the hands of police.
“In my view, the officers used excessive force when they struck plaintiffs with batons solely for the purpose of dispersing the crowd,” Watford wrote in a separate concurrence. “The level of force used here was intermediate, not minimal, and neither plaintiffs nor the other protestors posed a threat to the safety of the officers.”
But Watford ultimately agreed with the opinion of his other two colleagues, including U.S. Circuit Judge Louis Sands, that the police officers, their commanders and university officials are entitled to qualified immunity.
“Nonetheless, the officers are entitled to qualified immunity because the law at the time they acted did not clearly establish the illegality of their conduct,” Watford wrote. “I would rule for the defendants on the direct force claims solely on that basis.”
The panel remanded the case back to Judge Rogers, who is ordered to grant summary judgment to the defendants.
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