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Protesters Can Press UC Berkeley on Retaliation

SAN FRANCISCO (CN) - Officials from the University of California, Berkeley, may have retaliated against student protesters by arresting them, instead of giving citations, a federal judge ruled.

Current and former Berkeley students held week-long informational session called Open University to protest budget cuts and tuition hikes in December 2009. University officials initially agreed to let students set up the event a week before final exams in Wheeler Hall, a frequent site for student activism since serving as the center of the free-speech movement in 1964.

Police officers agreed to let students stay in Wheeler until Saturday, but officials held a meeting to discuss their options upon learning of an upcoming concert there.

"During this meeting, university officials decided to ignore their previous agreement with the students and have all the participants in the Open University arrested," the complaint states.

Police sealed off Wheeler Hall sometime between 4 and 5 a.m. and began handcuffing students as they slept, arresting 66 people.

"All 66 students were herded into the basement, processed, interrogated, and, after several hours, transported to the Alameda County Jail instead of being issued citations and released," the complaint states.

Six students filed a class action, claiming that the university and its police normally cite and release those charged with nonviolent misdemeanors, but in this case they sent them to jail in retaliation for exercising their First Amendment Rights.

U.S. Magistrate Judge Laurel Beeler refused to dismiss the claims against University Police Chief Mitchell Celaya and University Vice Chancellor for Student Affairs Harry LeGrande.

"Although somewhat general, plaintiffs' allegation regarding UCBPD's practice of citing and releasing nonviolent misdemeanants is a statement of fact entitled to the presumption of truth," Beeler wrote, abbreviating the police department's name. "The statement is further supported by allegations that many plaintiffs are university students, who are likely to have knowledge of such practices."

In combination with other allegations, "plaintiffs have plausibly alleged that their alleged mistreatment was retaliatory because they were detained and processed differently from other misdemeanants who were not arrested while exercising their First Amendment rights," the judge added.

The students say Celaya admitted that jailing them was preferable so because they "would not be available to join the protests that arose in response to their arrest."

Though the officials claimed this "post-arrest comment" fails to establish retaliatory intent, Beeler said it may shed light on the pre-arrest decision to book the students.

LeGrande's decision to arrest the protestors also marked an "abrupt change from the university's previously tolerant attitude toward plaintiffs," the decision states.

"One plausible explanation for this change is that LeGrande decided to punish Plaintiffs in the hope of chilling their First Amendment activities," Beeler wrote.

University Chancellor Robert Birgeneau alone managed to dismiss the claims against him.

Though Beeler concluded there was a lack of evidence in the current pleading, the students can try again with an amended complaint.

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