Felarca v. Birgeneau
| Decision Date | 31 May 2018 |
| Docket Number | No. 16-15293, No. 16-15294,16-15293 |
| Citation | 891 F.3d 809 |
| Parties | Yvette FELARCA; Joshua Anderson; Christopher Anderson; Honest Chung; Morgan Crawford; Yania Escobar; Joseph Finton; Louis Helm; Jacquelyn Kingkade; Benjamin Lynch ; Liana Mulholland; Colleen Mica Stumpf; Justin Tombolesi; Erick Uribe; Colleen Young; Anthony Morreale; Sachinthya Wagaarachchi; Francisco Alvarado-Rosas; Julie Klinger; Maximilian McDonald; Taro Yamaguchi-Phillips, Plaintiffs-Appellees, v. Robert J. BIRGENEAU, Chancellor of the University of California-Berkeley, in his individual capacity; George Breslauer, Executive Vice Chancellor and Provost of the University of California-Berkeley, in his individual capacity; Harry Le Grande, Vice Chancellor for Student Affairs of the University of California-Berkeley, in his individual capacity; Linda Williams, Associate Chancellor of the University of California-Berkeley, in her individual capacity; Claire Holmes, Associate Vice Chancellor for Public Affairs and Communications for the University of California-Berkeley, in her individual capacity; Mitchell Celaya, Chief of the University of California Police Department at Berkeley, in his individual capacity; Eric Tejada, Lieutenant; Marc DeCoulode, Lieutenant; Andrew Tucker, Sergeant #13, a police officer for the University of California Police Dept., in his individual capacity, Defendants-Appellants, and Samantha Lachler, Defendant. Yvette Felarca; Joshua Anderson; Christopher Anderson; Honest Chung; Morgan Crawford; Yania Escobar; Joseph Finton; Louis Helm; Jacquelyn Kingkade; Benjamin Lynch ; Liana Mulholland; Colleen Mica Stumpf; Justin Tombolesi; Erick Uribe; Colleen Young; Anthony Morreale; Sachinthya Wagaarachchi; Francisco Alvarado-Rosas; Julie Klinger; Maximilian McDonald; Taro Yamaguchi-Phillips, Plaintiffs-Appellees, v. Samantha Lachler, Defendant-Appellant, and Robert J. Birgeneau, Chancellor of the University of California-Berkeley, in his individual capacity; George Breslauer, Executive Vice Chancellor and Provost of the University of California-Berkeley, in his individual capacity; Harry Le Grande, Vice Chancellor for Student Affairs of the University of California-Berkeley, in his individual capacity; Linda Williams, Associate Chancellor of the University of California-Berkeley, in her individual capacity; Claire Holmes, Associate Vice Chancellor for Public Affairs and Communications for the University of California-Berkeley, in her individual capacity; Mitchell Celaya, Chief of the University of California Police Department at Berkeley, in his individual capacity; Eric Tejada, Lieutenant; Marc DeCoulode, Lieutenant; Andrew Tucker, Sergeant #13, a police officer for the University of California Police Dept., in his individual capacity, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Daniel Sharp (argued) and Rebecca M. Suarez, Crowell & Moring LLP, San Francisco, California; Colin M. Proksel, Crowell & Moring LLP, Irvine, California; Russell M. Perry (argued) and Zachery A. Lopes, Rains Lucia Stern St. Phalle & Silver PC, Ontario, California; for Defendants-Appellants.
Shanta Driver (argued) and Ronald Cruz, United For Equality and Affirmative Action Legal Defense Fund, Detroit, Michigan, for Plaintiffs-Appellees.
Before: J. Clifford Wallace and Paul J. Watford, Circuit Judges, and W. Louis Sands,* District Judge.
OPINION
University officials appeal from the denial of qualified immunity for the use of batons against protestors by university police officers. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
Thousands of protestors, inspired by the Occupy Wall Street movement, held a rally at the University of California, Berkeley on November 9, 2011. The protestors planned in advance to construct an encampment during the rally in violation of university policy. Berkeley administrators became aware of the plan weeks before when protest organizers distributed flyers seeking tents and other camping supplies. Driven by a concern over the health and safety risks that might accompany a long-term encampment, a team of university administrators preemptively developed an operational plan to deal with the protests and asked campus police to be ready to enforce the university's existing no-camping policy. Two days before the rally, university administrators warned students in a campus-wide email that the no-camping policy would be enforced.
At noon on November 9, some protestors engaged in a peaceful rally without incident. A few hours later, however, the protestors erected tents. After reading a dispersal order to the protestors, police took the tents down when the protestors refused to do so. Soon, the protestors began setting up more tents in the same area. The police returned wearing riot gear. Many of the protestors formed a human chain to block officers from reaching the tents. Police gave several bullhorn warnings ordering the protestors to take down the tents and disperse, although some protestors could not understand the warnings. When the warnings had no effect, officers then used their hands and batons to move the crowd, gain access to the tents, and maintain a perimeter while dismantling the encampment. Some protestors attempted to grab the officers' batons, shouted, and pushed against them. At least one protestor ended up in the hospital. Following the afternoon's events, university administrators tried to compromise with the protestors, agreeing to round-the-clock protests so long as the protestors did not set up encampments. The protestors rejected the offer, shouting profanities.
That evening police made a coordinated effort to take down additional tents protestors had set up. Police again gave bullhorn warnings to take down the tents and disperse, but again some protestors could not understand the warnings. When the protestors continued to block the police, the police again used their hands and batons to access and remove the tents. The police arrested at least thirty-six protestors throughout the day for obstructing the officers and resisting arrest. At least one more protestor ended up in the hospital following the evening's events.
Subsequent to the November 9 protests, some of the protestors filed the instant action against university administrators and police officers, alleging the officers used excessive force against them while removing the tents. Defendants moved for summary judgment on the ground of qualified immunity. The district court denied summary judgment motions by two University of California Police Department (UCPD) officers as to direct excessive force claims, and by five university administrators and three UCPD officers as to supervisory excessive force claims. In denying the motions, the district court concluded that triable issues of fact existed as to the reasonableness of defendants' actions. Defendants appealed.
We review de novo the denial of a motion for summary judgment predicated on qualified immunity. Sjurset v. Button , 810 F.3d 609, 614 (9th Cir. 2015). Summary judgment is granted only when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id. We view the evidence in the light most favorable to the nonmoving party. Id.
Qualified immunity protects public officials from a court action unless their conduct violated a constitutional right that was clearly established at the time. City and County of San Francisco v. Sheehan , ––– U.S. ––––, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015). The relevant inquiry requires us to ask two questions: (1) whether the facts, taken in the light most favorable to the non-moving party, show that the officials' conduct violated a constitutional right, and (2) whether the law at the time of the challenged conduct clearly established that the conduct was unlawful. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A plaintiff must prove both steps of the inquiry to establish the officials are not entitled to immunity from the action. Marsh v. County of San Diego , 680 F.3d 1148, 1152 (9th Cir. 2012). We may address the steps in either order. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Under the first step of the analysis, police use of force violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We assess reasonableness by balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. 1865 (internal quotation marks omitted).
Under the second step, we consider whether the law was clearly established at the time of the challenged conduct. Sjurset , 810 F.3d at 615. The Supreme Court has repeatedly told courts "not to define clearly established law at a high level of generality." Sheehan , 135 S.Ct. at 1775–76. The law must have been clear enough that "every reasonable official" would know he or she was violating the plaintiff's rights. Sjurset , 810 F.3d at 615 (emphasis added), quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).
We first examine the direct force claims. Plaintiffs C. Anderson and Crawford assert claims against Officer Lachler, and plaintiffs Uribe and J. Anderson assert claims against Sergeant Tucker. Each plaintiff admits linking arms with other students to block the officers' access to the tents.
C. Anderson alleged that Officer Lachler jabbed him in the back with the tip of her baton at least six times at the afternoon protest. C. Anderson did not leave the protest immediately after the alleged incident with Officer Lachler and returned for the evening protest. C. Anderson testified that he received the administration's...
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