UC Berkeley administrators not dismissed from Occupy Cal lawsuit

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UC Berkeley administrators will not be dismissed from a lawsuit alleging they authorized police violence during a November 2011 Occupy Cal protest, a federal judge ruled Friday.

The lawsuit, which BAMN filed in November 2011, alleges UC Berkeley administrators hold partial responsibility for the use of excessive force, false arrest and violation of the protesters’ First Amendment rights on the Nov. 9 Day of Action. The administrators, including former UC Berkeley chancellor Robert Birgeneau and soon-to-retire Executive Vice Chancellor and Provost George Breslauer, sought dismissal from the $15 million federal civil rights lawsuit in September 2013.

BAMN, a national group in favor of affirmative action, filed the lawsuit on behalf of 24 demonstrators who claim they witnessed and experienced violence from police officers at the Nov. 9 protest. Video footage of the action police took against protesters received wide media coverage after the event.

“We’re very glad that the judge agreed with us that we have a right to bring First Amendment complaints against the administration,” said Yvette Felarca, a national organizer for BAMN and lead plaintiff in the suit.

U.S. District Judge Yvonne Gonzalez Rogers ruled the protesters’ allegations are sufficient to suggest the administrators were responsible for failing to prevent the police violence.

“The allegations … give rise to a plausible claim that, by the evening, it was or should have been obvious to the UC administrators what would be the likely result of Birgeneau’s directive that they ‘not back down’ on the no-encampment policy: a violent response from the police that would lead to excessive use of force and false arrest by the officers under their control,” Rogers wrote in her ruling.

Rogers also decided not to dismiss the allegations that administrators targeted protesters because they were “supportive of the Occupy movement and expressed opposition to Birgeneau and Breslauer’s stated positions on University fee hikes and privatization,” the ruling states.

The lawsuit will now enter a “period of discovery” that may involve sworn depositions of the defendants and requests to see evidence, according to BAMN attorney Ronald Cruz. A trial date has yet to be set.

“In deciding these motions, the court was required to assume the accuracy of all the plaintiffs’ factual allegations. We strongly believe that when the court is able to look at the evidence, it will conclude that the actions of the police and UC administrators were legally justified,” said UC Berkeley spokesperson Janet Gilmore in an email.

Gilmore said that the campus administration believes it acted within the law but that it is committed to working to avoid such confrontations in the future. The Protest Response Team, led by senior campus administrators, was created in 2012 to respond to protests “in a time and manner that will help de-escalate the situation and minimize the potential for harm,” according to Gilmore.

The team was called into action in January 2012 to handle the occupation of the campus’s anthropology library, although no campus protests since fall 2011 have matched Occupy Cal’s magnitude.

Cruz, however, pointed to the appointment of UC President Janet Napolitano, former U.S. Secretary of Homeland Security, as evidence the university has not changed since the protests.

“The appointment of Napolitano makes clear that they have not changed the basic course of where they want to go, which is … to compromise the public nature of the university, restrict academic freedom and make the university more elite and exclusive,” Cruz said.


Somin Park is the lead academics and administration reporter. Contact her at [email protected] and follow her on Twitter @_sominpark.

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