A jury in a federal court in San Francisco concluded Friday that UCPD Officer Brendan Tinney did not violate the constitutional rights of a UC Berkeley student during a 2009 campus protest.
The lawsuit surfaced after Zhivka Valiavicharska, a graduate student in the campus rhetoric department, accused Tinney of using excessive force when he allegedly struck her hand with a baton during a Nov. 20, 2009 campus protest against UC fee increases and layoffs.
The trial took place last week at the U.S. District Court for the Northern District of California. A Facebook event for the trial named political science professor Wendy Brown and UC Santa Cruz graduate student Cindy Rose Bello, among others, as possible witnesses called to testify during the case.
“We should use this as a chance to test the courtrooms against the atrocities UCPD continues to commit on our campuses,” Valiavicharska wrote on the Facebook page.
While Valiavicharska also accused campus UCPD Chief Mitch Celaya and UCPD Capt. Margo Bennett of failing to supervise and adequately discipline Tinney in an October 2010 filing, according to a court document, the judge dismissed them before the trial.
Valiavicharska, who was among a group of protesters situated outside Wheeler Hall during the 2009 protest, was allegedly warned by Tinney several times to remove her hand from a metal barrier set up by UCPD, according to the court document. After a series of warnings, Tinney allegedly struck her hand with his baton.
The campus claims that Valiavicharska was shaking the barrier before he struck her. Valiavicharska, on the other hand, says she was holding the barrier for support, not shaking it, when she was hit, according to the document.
Betsy Vincent covers academics and administration.
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Force like this should be applied only if the officer is threatened or being assaulted. There is no threat to the officer’s safety here, obviously.
“The Fourth Amendment prohibits the use of force, even by those who may have engaged in illegal conduct. When force is used against protesters or others exercising their first Amendment rights, this prohibition ‘must be enforced with scrupulous exactitude.’ (Lamb v. City of Decatur, 947 f. supp. 1261) [...] The primary factors to consider in whether the force was reasonable or excessive are: “whether the suspect poses immediate threat to the safety of the officers or others,” “the severity of the crime at issue” and “whether he is actively resisting arrest or attempting to evade arrest by flight.” Glen v. Washington County [...]. Even when there is a need for some force, it is “least justified against non-violent misdemeanants who do not flee or actively resist arrest.” Buck v City of Albuquerque [...].”
ACLU of Northern California in a letter to Dean Edley regarding police conduct on the Berkeley campus from Nov. 9, 2011
Gross miscarriage of justice. The cops do not have the right to smash bones or kill with impunity even if the person fails to comply. that’s why there’s a concept called excessive force, to protect us against police brutality, which falls under the Fourth amendment. Every verdict like this digs a deeper grave for the Constitution and sanctions the arbitrary power of the cops. right is might, pure and simple.
I have always supported and respected the police.Also,Im not in any way a fan of the extreme left-wing politics that pepole like Ms Valiavicharska endorse.Still,the officer went to far in breaking her fingers.True,Ms Valiavicharska does deserve part of the blame for what happened to her.She was ordered by lawful authority not to put her hand on the barricade;doing so a second time-especially after he smashed his baton near her hand-was VERY foolish on her part.But the officer smashed her hand with full-force and breaking that poor womans fingers was completely unnesscary and even cruel.He had every right to hit her hands with his baton,but a even a light swat would have hurt her fingers enough that shed comply-without breaking them.
The bottom line:the officer had every right to smash Ms Valiavicharskas grubby little fingers when chose to take them where the officer specifically told her not to go!Her case was nonsense;the fact that she has a broken pinky for life is her own stupid fault.
I am so glad, I think Officer Brendan Tinney is a great guy and officer! He has given great presentations for groups I have been a part of and has always treated us as equals/ with respect. Even though we are students he always answered our questions straightforwardly and realistically – something which is hard to find! I can speak for myself and the rest of my group (157 of us) when I say “we are very glad to have Officer Tinney here at UC Berkeley!”
Cops should go study the Constitution instead of trolling the threads.
There are no cops trolling the threads here. Please grow up.
US Supreme Court, Graham vs. Connor, 1989.
All claims that law enforcement officials have used excessive force –
deadly or not – in the course of an arrest, investigatory stop, or other
“seizure” of a free citizen are properly analyzed under the Fourth
Amendment’s “objective reasonableness” standard, rather than under a
substantive due process standard. Pp. 392-399.
[490
U.S. 386, 387]
(b) Claims that law enforcement officials have used excessive force in
the course of an arrest, investigatory stop, or other “seizure” of a
free citizen are most properly characterized as invoking the protections
of the Fourth Amendment, which guarantees citizens the right “to be
secure in their persons . . . against unreasonable seizures,” and must
be judged by reference to the Fourth Amendment’s “reasonableness”
standard. Pp. 394-395.
But no arrest or detention was made of Zhivka Valiavicharska. The fourth amendment, therefore, does not apply in this context. Now you may still revisit the question of whether or not excessive force was used, but this does not mean the constitution should be invoked, unless you want to go straight to the first amendment and say the right to peaceably assemble was infringed upon, which it wasn’t. Sorry, but you lose.
This is how it applies IN THIS CASE: Court has found that police cannot use unreasonable force in the case of search and seizure. Even though Zhivka was not actually seized, any use of force by the police (unless the recipient has threatened or actually been violent) is considered the initiation of a 4th amendment seizure situation, since presumably the point of using the force is to restrict the movement of the other person, even if not to actively keep them captive.
This case should be appealed. The police are not here to break our bones while we are exercising our constitutional rights. Appalling.
Let’s boil isolate what you’re saying here: “the police break our bones while we exercise our constitutional rights”. Well, there was a whole trial over whether or not the incident was unconstitutional, but let’s just forget about all that for now.
Let me ask you: where do you see constitutional rights being infringed upon here? The right of assembly? The right of free speech? I’m guessing you’re going to say the “right of freedom of expression”. And by that you mean the right to put your hands on a police-erected barricade even when you’re repeatedly told not to?
If you’re going to say the above, you really need to be clear about this.
it’s fourth amendment, goof.
Unreasonable search and seizure?! PLEASE tell me how that’s applicable here.
happen to know this stuff, actually, and since the late 1980s they have been trying police brutality cases under the fourth amendment. you can’t know this if you’re not a lawyer, but when you are not informed you shouldn’t argue with attitude.
Well maybe you can use simple terms to enlighten me. It seems unfair to presume I cannot possibly wrap my little mind around it. So, please, explain how the fourth amendment is relevant here.
concerned member is right.
@ab8a225e65c776990ec0c10a3d03f01a:disqus
: before you get all butt hurt, concerned member is not saying you are incapable of understanding. s/he is saying that s/he knows that since you’re not a lawyer, it’s not surprising that you don’t *already know* how the 4th amendment has been used in police brutality cases.
anyway, here is the relevant case: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=490&invol=386
I’m sorry, Wawaweera, but you too are failing to show me how the fourth amendment is relevant in THIS CASE. Let me help you both: IT ISN’T.
it’s ok if others don’t know but this should be basic knowledge for cops…
This is how it applies IN THIS CASE: Court has found that police cannot use unreasonable force in the case of search and seizure. Even though Zhivka was not actually seized, any use of force by the police (unless the recipient has threatened or actually been violent) is considered the initiation of a 4th amendment seizure situation, since presumably the point of using the force is to restrict the movement of the other person, even if not to actively keep them captive.
You’re clueless, child.
yeah, these stupid civil rights always get in the way of the police
You’re the only one calling civil rights “stupid” (sarcasm, I know) and no one says they don’t hold the authorities in check. Hell, that’s what they’re there for. But let’s not get sidetracked. I’m asking concerned member, who surely knows far more about this subject than ignorant little me, how the 4th amendment is relevant here and I can’t seem to get an answer. I guess I’ll never know.
if the cops are not aware that they may be violating fourth amendment rights when they are beating people, that’s pretty disconcerting. i see why concerned member is concerned… these guys need to get some studying done…
The fourth amendment is NOT APPLICABLE HERE, ASSHOLES!!!!! Now stop or I’m gonna have a fucking aneurism!!!!!!!!!!!!!!!!!!!!!!!!
*boil down / isolate*
Man what a mess. I heard that the judge was new–it was her first trial. Apparently she allowed evidence that is considered grossly prejudicial by all standards.
You know this for a fact, or is this merely your uniformed opinion? By all credible accounts, not only did this girl make some pretty outrageous claims that she could not substantiate, but shot herself in the foot by publicizing her issues during the trial phase. No surprise here that she lost.
Yeah yeah yeah…. Now it’s the judge’s fault. Yet another conspiracy theory… anything to take to blame off Ms V, who, some have seem to forgotten, put herself in this situation by her own irresponsible actions.
I was at the trial. On at least 2-3 occasions, the judge made mistakes. She corrected herself, as both the defense and plaintiff pointed out errors with which she concurred, but I don’t think it’s an exaggeration to say that the judge was less skilled than someone with more trial experience.
Okay, Neda Agha-Soltan, the female protester who was shot dead by Iran’s basij paramilitary forces during a protest was an atrocity. Zhivka’s pinky getting smashed because she wouldn’t keep her hands off the police barricades after repeated warnings is not.
Agreed, but keep in mind that with your typical attention-starved activist, the world revolves around them, their personal issue is the most important issue out there, and their personal opponents are worst people in the world. Left-wing activists aren’t known for their sense of balance or perspective.
That’s why I don’t read the comment sections: there are always some crazy trolls who want to dominate the discussion.
force may be employed to prevent an arrestee from escaping, to prevent assaultive injury to an officer or another party.
force may not legally be applied simply b/c an officer capriciously decides “if you do (non-threatening) action X again, I will harm you, consider yourself warned.”
The UC and UCPD PERJURE themselves by presenting falsehood as fact.
The jury gets it wrong on the facts and the law, and is full of FAIL.
Oh, it’s you again…
Excuse me but this is totally screwed up logic. The fact that she didn’t follow doctor’s orders was refuted. And the idea that she caused her own injury is enraging. It’s the logic of a pathological abuser: abuse the victim and then blame it all on them, paint them as undeserving, then argue they got what they asked for. Add insult to injury. Anyone who has experienced this stuff would recognize it.
Anyone who has ever been either a plaintiff or a defendant in a civil suit would recognize that Ms V. used exceedingly poor judgement in discussing details about her suit online. Any decent attorney would tell you to STFU and stop discussing details publicly, because as Joe Friday used to say, anything you say can and will be used against you in a court of law.
The fallacy of your argument is in claiming that Ms V is a victim. I disagree. Ms V put herself in that situation, she failed to follow lawful orders, so she got her little pinky hurt as a result. Then, she files this frivolous lawsuit and drags the University and these officers through all these legal proceedings. Who do you think paid for the University’s lawyers to defend this waste of time lawsuit? How do you think those officers have felt for the past year worrying about their homes, their families, and their livelihoods? Ms V was selfish, irresponsible, and it’s HER fault that this happened.
It should be noted that Valiavicharska screwed her finger and had to have a new operation when she refused to follow her doctor’s orders and take proper care of it. This woman just can’t do what she’s supposed to do, and then wants to blame others for the consequence of her actions.
Let me guess, she votes Democrat.
You guys are hilarious… taking every opportunity to tie this into some weird generalization. If you take a place that has a high proportion of radicals of a group, no shit the crazy stuff is going to be done by the radicals of that group. For example, lets take the Westboro Baptist Church who are republican, does that mean all republicans are retarded assholes like them? Don’t think so…
That being said, this is definitely a waste of UC money and time. Not to mention that she was repeatedly told to remove her hand, so it’s entirely her fault anyway.
[You guys are hilarious... taking every opportunity to tie this into some weird generalization.]
Have any proof that they are not Democrats?
[For example, lets take the Westboro Baptist Church who are republican]
Any proof that they are Republican? In any case, you probably don’t realize that the biggest groups of counter-protesters against the WBC loons (Patriot Riders) are for the most part Christian conservatives, and the the Westboro bozos receive exceedingly hostile receptions in redneck country. When was the last time liberal Democrats counter-demonstrated against BAMN, Occupy, the Uhuru folks, or the various and sundry crazies on their end of the spectrum?
I think it’s incredibly convenient that I have to prove that they’re not Democrats /and/ I have to prove that WBC aren’t Republicans. In any case, WBC has many of the same xenophobic and YAY MILITARY!!!!!!! (in fact all those rednecks you speak of drive away WBC because they support the military, not because they are against WBC’s anti-homosexual message) tendencies as Republicans. How you like them generalizations?
I would also like to point out that rather than having an intelligent discussion on a level playing field, you consistently feel the need to call people names prior to attempting to debate with them.
Anyway, I know you love people that actually do stuff, so I’m gonna go back to doing lab experiments rather than counter-protesting some dumbasses. (This maybe the reason why there are no counterprotests, if I may generalize myself, there are many more liberals in science and engineering, who have better things to do than drive around in pickup trucks all day waving guns).
LAWLS OUT
Yawn. More of the same silliness from you.
Yeah, she purposely messed her hand up… for the chance to bring up charges?
You think like you watch too much T.V.
absolutely terrible article. was it too difficult to interview both sides? did the reporter even try?
atrocious. it seems Berkeley has seriously lowered its standards regarding its undergraduate students.
Yes, Valiavicharska is a clear example of how low the UC’s standards for students really are. Pitiful.
Yes, because I’m sure you’ve read and understood her scholarly work, earning her a position at yet another mediocre institution, the University of Chicago.
http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-humanities-schools/political-science-rankings
The Unibomber was also a Berkeley grad student, a PhD, and a top world mathematician. Like the plaintiff in this case, he was deranged, in spite of his “scholarly work”. Apples and Oranges, numbskull.
Right, you have to be completely out of your mind to sue a cop for shattering your finger and ruining a year of your life, when all you did was put your hand on a barricade. Totally deranged. Pretty much the same state of mind that would make you murder people by mailing them concealed explosives.
But that’s beside the point. We are talking about Berkeley’s “standards,” which I am assuming refers to the level of intellect and skill required for admission. You are responding to someone who says that the author of this article did a poor job with the reporting, an indication of Berkeley’s low standards. You equate poor reporting with what must be lack of skill on Zhivka’s part. I am saying that Zhivka is obviously a gifted scholar, given that she beat out probably 200-300 applicants from top graduate programs across the globe to get that job at U of Chicago. While the Unibomber was obviously deranged, as you admit yourself, he became a world-reknown mathematician. So it appears that Berkeley is pretty fucking good at finding elite minds.
Valiavicharska gets to talk on her facebook, and in the ridiculous trials she causes. No one needs to hear anything more from her.
Great journalism, Betsy Vincent. Did you ever think about interviewing the side of the plaintiff? No, why even bother…
Becazuse Valiavicharska will then sue the journalist. No one wants to talk to a wacko, not even reporters.
I was there and saw the absolutely disgusting and dishonest ways in which UCPD and the university won this case–they brought in officer Jewel from UCPD who BLATANTLY LIED under oath that students had tried grabbing his gun and baton. COMPLETE LIE as UCPD has never even mention such an incident on Nov. 20, nor have they filed a report mentioning any incident like that. They tried to portray the protesters as the violent ones with lies and manipulations–to distract from the real abuse of violence, the violence of the POLICE. Many were unjustly injured on that day, as multiple videos showed.
If you have proof that the officer(s) lied that would have convinced the jury, why didn’t you testify? Could it be that you would have been seen as having no credibility whatsoever?
Unjustly injured? Disgusting? Dishonest? A jury of your peers in our community didn’t think so.
Just because you didn’t get your way doesn’t mean the judicial system (that Valiavicharska chose to use) didn’t work.
excuse me, but it’s possible for a verdict to come out the siding with the wrong side the first time. that’s why there’s the right to appeal, etc.
You need to brush up on your Appeals 101. Not liking a jury’s decision isn’t grounds for appeal. As I said, just because you didn’t get your way doesn’t mean justice wasn’t served.
Truth will out. The truth is that V brought a frivolous lawsuit instead of taking responsibility for her actions. The court and jury saw through it with ease.
”If you have proof that the officer(s) lied that would have convinced the jury, why didn’t you testify? ”
I think we know the answer to that one already. He’s a kook just like Ms. V.
This you John?
“Chairman Board of Directors at Academic Financial Solutions”
http://www.linkedin.com/pub/john-decker/8/302/a47
Conservatively speaking, it must be ok to strike a child or elderly person who may grab on to someone or something for support. The jury missed an opportunity to remind America that we live in a civil society, instead they put a nail through the heart of education and basically said might is right.
Instead, the jury took the opportunity to remind America that civil disobedience has a price, and they felt that the price the plaintiff paid was not too high.
Yes, and the price should be arrest, not the destruction of parts of your hand.
That’s not really putting it conservatively; that’s a poor analogy. The elderly are not often able to pose much of a physical threat to first responders in a protest, and as we age there’s a higher chance of having our mental faculties impaired (an elderly person could be disoriented and in the wrong place at the wrong time). Likewise, it can easily be argued that children are not prepared to make complex decisions about whether or not to engage in an act of civil disobedience, and they too pose little physical threat to first responders. Also, are you talking about either parties leaning on something for support in any context (like a handrail in a shopping mall), or specifically on a police barricade at a protest? The context is important. It just doesn’t sound like you thought about this before you wrote it.
[“We should use this as a chance to test the courtrooms against the
atrocities UCPD continues to commit on our campuses,” Valiavicharska
wrote on the Facebook page.]
Given the hyperbole and ludicrous claims, no wonder the jury ruled in favor of the officer.
For once, I agree with you.
What a waste of UC’s money and our tax dollars. Valiavicharska should be made to pay all fees and costs. While the courts should be available to all at no cost, this case was frivolous at best and should never have been allowed to proceed.
You have no clue.
“We should use this as a chance to test the courtrooms against the
atrocities UCPD continues to commit on our campuses,” Valiavicharska
wrote on the Facebook page.
The jury has spoken. No atrocities were committed against the whining protestors. Appropriate force was used to clamp down on their disruption.
Justice has been served. Cal kiddies must learn about bullshit excuses….”she was holding the barrier for support”
LOL! Schooled
She a Cal kiddie, now?
Excellent.