A federal judge heard arguments but didn't make a ruling today on a legal issue in a lawsuit that seeks $15 million in damages for demonstrators who were injured in an "Occupy Cal" protest at the University of California at Berkeley in November 2011.
The activist group By Any Means Necessary and 29 other protesters filed suit on Nov. 29, 2011, accusing the UC Berkeley and other agencies of police brutality, false arrest and violating their free speech rights during protests on Nov. 9, 2011.
The defendants include UC Berkeley, top university administrators, university police, the Alameda County Sheriff's Office and the Oakland Police Department.
U.S. District Court Judge Yvonne Gonzalez Rogers didn't address the merits of the lawsuit today but instead focused on a motion by UC Berkeley to have former Chancellor Robert Birgeneau and other top administrators dismissed from the suit.
The university's lawyer, Janice Scancarelli, said even if it can be proven that Birgeneau, former Vice Chancellor George Breslauer and other top officials told police to crack down on protesters the issue is "if they knew or should have known that constitutional violations would occur" when police attacked protesters.
Scancarelli said the lawsuit "doesn't link these particular individuals to the injuries" the protesters suffered.
But George Washington, an attorney for the protesters who filed suit, said he believes top administrators "gave orders to police to attack defenseless students."
Washington argued the university's motion is "an attempt to get the top administrators out of the lawsuit and let the cops take the rap."
He said UC Berkeley administrators used an inappropriate "political judgment" in deciding to crack down on an Occupy Cal encampment on Sproul Plaza on Nov. 9, 2011, even though they hadn't removed an encampment at the same place in May 2010.
Washington alleged that university officials were more sympathetic to the May 2010 protest because it opposed Arizona's anti-illegal immigration law but were concerned about the Nov. 9, 2011, protest because it addressed what he described as the more "entrenched and deep-seated" issue of inequality at UC Berkeley.
However, Scancarelli said, "The allegations do not indicate that the chancellor or vice chancellor took action because of anyone's viewpoint" and "any attempt to infer a political intent would not be reasonable."
Scancarelli said UC Berkeley officials wanted to remove the protesters from Sproul Plaza because they were concerned about safety and sanitation problems that had plagued other "Occupy" encampments across the country in the fall of 2011.
Although Gonzalez Rogers took the matter under submission and won't rule until later, she told Washington that the lawsuit doesn't have enough hard facts to back up its allegation that top university officials were aware of the harsh tactics police were using against protesters.
The judge said to Washington, "My main problem with your complaint is that it does much less than your argument."
Gonzalez Rogers said, "What I do not appreciate is all these allegations which are not actually supported by the facts in the complaint."
She also said the lawsuit has more facts for some administrators than it does for others and told Washington, "It's incumbent to make sure you have the facts for each of the individuals instead of as a group."
The lawsuit alleges that university administrators "saw police viciously clubbing peaceful protesters, yanking women by their hair, clubbing people on the ground and clubbing people after the tents had already been secured or destroyed and they did nothing to stop this conduct."
In fact, the suit alleges that after police engaged in harsh tactics between 3:30 and 4 p.m. on Nov. 9, 2011, administrators "still set in motion a more violent police attack in the evening," around 9:30 p.m.