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Timothy Scott Campbell, Kerie Campbell, Marcus Kryshka v. City of Oakland

November 16, 2011


The opinion of the court was delivered by: Richard Seeborg United States District Judge

*E-Filed 11/16/11*




On November 14, 2011, plaintiffs filed this civil rights action against the City of Oakland and Interim Chief of Police Howard Jordan (collectively "Oakland") based on confrontations between local law enforcement officers and individuals observing and taking part in the "Occupy Oakland" protests. Plaintiffs simultaneously filed an ex parte request for a temporary restraining order (TRO) enjoining defendants' alleged indiscriminate and excessive use of force, which plaintiffs contend violates the Oakland Police Department's own Crowd Control and Crowd Management Policy. In response, on the same day, the court issued an order requiring plaintiffs to serve their request, the supporting papers, and the order itself, on the defendants by the close of business. Per the order's further instruction, defendants filed a written response to plaintiffs' 2 request by the close of business the next day. Upon consideration of the briefs, and for the reasons 3 stated below, plaintiffs' application for a TRO is denied. 4


This case arises out of the Occupy Oakland protest. The protest began in early October 2011, one of many nationwide demonstrations inspired by New York's "Occupy Wall Street" 7 movement. The protesters seek to raise awareness about economic inequality, and advocate 8 political and social change. They have repeatedly convened on Frank Ogawa Plaza, in front of Oakland City Hall, with some erecting tents and others periodically gathering there for meetings and 10 rallies. Most of these events, all acknowledge, have transpired without incident. Oakland emphasizes, further, that it has made efforts to accommodate the protests by diverting traffic during marches, and like events.

On October 20, 2011, however, Oakland presented protestors at the plaza with an eviction i tates notice, and in the early morning hours of October 25, Oakland police and municipal employees, 15 assisted by law enforcement officers from other local agencies, forcibly removed demonstrators from the plaza. Here, the parties' accounts of the facts diverge. By plaintiffs' account, the police action was not adequately announced to protesters, and officers endangered the crowds by 18 indiscriminately and prematurely deploying aggressive dispersal techniques. According to Oakland, 19 the operation was conducted in "strict accordance" with the Crowd Control Policy: announcements 20 were made, and protestors had an opportunity to leave before approximately 70 people were 21 arrested. 22

Oakland's Crowd Control and Crowd Management Policy is generally designed to "uphold 23 constitutional rights of free speech and assembly while relying on the minimum use of force and 24 authority needed to address a crowd management or crowd control issue." Ex. 1 (Crowd Control 25 Policy) to Jordan Decl. in Supp. of Defs.' Opp. Br., at 1. It specifies crowd control techniques and 26 dispersal tactics that may be appropriately used in certain circumstances. For instance, when an 27 assembly is declared unlawful, "[t]he police may not disperse a demonstration or crowd event 28 before demonstrators have acted illegally or before the demonstrators pose a clear and present 2 danger of imminent violence." Id. at 11. The policy also places limits on the use of chemical 3 agents, "flash bang" grenades, and "less lethal" munitions, for example, by requiring that 4 demonstrators receive warnings, and an opportunity to disperse, prior to the deployment of such 5 devices. 6

Oakland claims it continued to facilitate the protests throughout the day by diverting traffic and allowing protestors to occupy downtown areas until the afternoon, when some portion of the 8 crowd began to threaten and assault police officers. According to plaintiffs, the police fired flash 9 bang grenades and tear gas into crowds on several occasions. In the evening, the protests once again 10 convened at Frank Ogawa Plaza and another confrontation ensued. Plaintiffs state that the police ordered dispersal before any illegal conduct had occurred, or proceeded to disperse the crowd without making the requisite announcements, in violation of the Crowd Control Policy. Plaintiffs have also filed numerous declarations describing police officers' use of projectiles, including flash bang grenades, tear gas, rubber bullets, and pepperballs, on crowds or non-threatening individuals, 15 including the named plaintiffs. According to plaintiffs, protestors sustained serious injuries as a result. Oakland, by contrast, denies knowledge of injuries and insists that it deployed force to protect police and city sanitation crews in the plaza from hostile protestors. According to the 18

Interim Chief of Police, Oakland police declared an unlawful assembly around the plaza, and made 19 the appropriate announcements, thereby permitting protestors to leave voluntarily, before 20 responding to individuals throwing glass bottles, rocks, and other objects at officers. Again, 21

Oakland avers that its officers' actions strictly complied with the Crowd Control Policy. 22

Although the protests continued after these events, it appears there were no further incidents until November 2, 2011. On that day, demonstrators called for a general strike and disrupted the 24 Port of Oakland's operations. The parties agree that the majority of the events that occurred 25 throughout the day "were peaceful and involved no police confrontation." Pls.' Mem. in Supp. of 26

TRO and Prelim. Inj., at 10:19. Late in the evening, however, another confrontation ensued in the 27 area around the plaza. According to plaintiffs, police again failed to give intelligible dispersal orders, used excessive force, and fired projectiles, flash bang grenades, and tear gas indiscriminately 2 into crowds and toward non-threatening individuals, including the named plaintiffs. Approximately 3 eighty demonstrators were arrested. The Interim Chief of Police states that police acted 4 "surgically," with tear gas and less lethal munitions, in response to violent protesters who were 5 assaulting police with bottles and concrete blocks. The response, he further emphasizes, avoided 6 disrupting peaceful demonstrators who had by then returned to Frank Ogawa Plaza. Again, Oakland 7 ...

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