Federal court hears arguments in ongoing BAMN lawsuit against UC Berkeley

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The U.S. Ninth Circuit Federal Court of Appeals heard oral arguments from both UC Berkeley and activist group By Any Means Necessary, or BAMN, in the latter’s ongoing lawsuit regarding the Occupy Cal protests in 2011.

BAMN’s lawsuit was filed against the UCPD officers and campus administrators, alleging that the campus authorized excessive police force to disperse the crowd during the protest that took place Nov. 9, 2011. The hearing Wednesday examined the campus’s appeal to a 2014 decision that denied the campus “qualified immunity,” stating that administrators and UCPD officers must undergo a trial regarding their role in the Occupy Cal protest in 2011.

According to Shanta Driver, BAMN national chair and director of BAMN’s nonprofit affiliate, several protesters were allegedly hurt by police. BAMN is an organization that works to defend affirmative action, integration, immigrant rights and equality, according to BAMN member Ronald Cruz.

According to campus spokesperson Janet Gilmore, the UC defendants believe the courts should dismiss claims of excessive force because the protesters had illegally set up tents on Sproul Plaza and refused to remove them.

“The UC Defendants contend … the plaintiffs did not have a constitutional right to obstruct the removal of the illegal encampment that was set up in Sproul Plaza in November 2011,” Gilmore said in an email. “(T)he UC Defendants acted reasonably under the circumstances.”

The defendants began the hearing Wednesday and pointed out that the plaintiffs’ First Amendment rights had not been violated. They added that UCPD had the right to remove the protesters’ tents.

Following these arguments, one judge repeatedly asked, “What should we do with an affidavit saying there was a head strike?”

The defendants were unable to comment.

During the hearing, Driver stated that it was the administration’s duty to actively manage the police force on campus, and she alleged that police officers used “excessive force” to control a nonviolent situation.

Following the court hearing, the plaintiffs debriefed outside of the courthouse.  

“It went well. The judges generally were sympathetic to our case because of the legal work that went into our side and the detail put into it by our lawyers,” said Justin Tombolesi, a campus alumnus and a participant in the 2011 Occupy protest.

Among the members of BAMN who came to the hearing to support the organization was new member Stephanie Gutierrez, a campus freshman.

“This case is very crucial to future demonstrations,” Gutierrez said. “With more support from students, the court will see that this is still a relevant case and that students who are currently at Berkeley are still very aware of what happened and very concerned as to our safety and our rights to protest later on.”

Contact Ella Colbert and Gioia von Staden at [email protected].