14 Consider Lawsuit Against City of Berkeley After Protests

Attorneys representing 14 people who say they were struck and jabbed by police batons, clubbed, beaten, tear gassed, slammed to the ground, fired on with “less lethal” projectiles or arrested during December protests in Berkeley related to the Black Lives Matter movement are considering filing a lawsuit against the city on their clients’ behalf.

Some of the claimants were reporters or individuals documenting the protests. One UC Berkeley student said she was unable to complete her semester or graduate as a result of her injuries. One woman, a minister who said she was struck in the back of the head while trying to help up another demonstrator who had fallen, required three staples at the emergency room to close the gash she received.

In late June, attorneys filed four tort claims outlining alleged injuries to their clients. Those documents are required to be submitted prior to the official filing of a lawsuit against a government entity, explained Berkeley attorney James B. Chanin. Chanin and attorney Rachel Lederman of San Francisco-based Lederman & Beach Attorneys At Law are representing the group on behalf of the National Lawyers Guild.

According to a brief statement posted by Lederman, “Our clients include a Chronicle photographer and a minister who were clubbed on the heads for no apparent reason; a 55-year-old Berkeley Rent Board counselor who was clubbed in the back from behind while she was urging other demonstrators to give the police space; and a visitor from Los Angeles who happened on the demonstration and had been there for only minutes when he was shot with a ‘less lethal’ munition, fracturing his knee.”

Lederman told Berkeleyside in late July that it could be a month or two before the lawsuit is actually filed. She said she and Chanin had been “having some initial discussions” with the city of Berkeley “to see if we can avoid that.”

Each of the claims is “in excess of $10,000,” according to court documents, and alleges constitutional rights violations.

The incidents described in court papers took place from Dec. 6-8, 2014, when protesters demanding an end to police brutality flocked to Berkeley by the hundreds. The majority of the injuries are alleged to have taken place Dec. 6, when crowds demonstrated for hours in Berkeley. Police ultimately used tear gas to clear the streets and push the protesters down Telegraph Avenue into Oakland. Police said members of the crowd surrounded them and were hurling projectiles at them, which ultimately led to the decision to use tear gas on demonstrators in Berkeley for the first time in decades.

Many community members and some city officials have criticized that decision, which is still under review by the city’s volunteer Police Review Commission. The Berkeley City Council voted in February to enact a temporary moratorium on the use of tear gas during nonviolent demonstrations pending the completion of that review.

In the weeks that followed those first nights in Berkeley, many community members testified repeatedly about what they believed had been inappropriate and repeated use of force by officers in Berkeley during the December protests.

The Police Department completed its own report in June, which concluded that mistakes had been made, and suggested changes to how it handles protests in the future. The report cost approximately $221,000 -- staff time from January through June for four officers and another city staffer -- to complete. Earlier this year, the department estimated that the response to the protests in December would likely cost several hundred thousand dollars.

Berkeley police officers used an estimated 50 tear gas grenades and “blast rounds” to clear Telegraph on Dec. 6 around 10:20 p.m. after sustaining numerous injuries to officers in the preceding several hours. The vast majority of the injuries reported by claimants represented by Chanin and Lederman also took place that night.

According to court documents, minister Cindy Pincus tried to help a woman who had fallen down after being jabbed by a police officer’s club when an officer from an unknown department struck her in the head. (Berkeley police had called for mutual aid that night from other Bay Area law enforcement officers. An estimated 100-200 of those officers bolstered Berkeley’s own forces, which included 80-100 police.)

Police had “deployed chemical agents and dangerous ‘less lethal’ munitions into the retreating crowd” and Pincus tried to flee but was disoriented, attorneys wrote, “unable to see and bleeding from the head.” She managed to find two friends who helped her get to the hospital, where she required staples to close the gash.

Another claimant, UC Berkeley student Allie Loux, said she was trying to get home after taking part in the demonstrations that evening. According to court documents, she was unable to leave due to “police formations.” (At various points in the night, officers set up skirmish lines to try to direct the crowd or limit its access to different areas; police said in June that this increased tension with the crowd, and that the department should consider alternate approaches when possible in the future.)

As police were deploying tear gas, Loux collapsed and fell to the ground, which ultimately resulted in a concussion, according to court papers. Loux says she had to withdraw from school as a result of her injuries, and was therefore unable to graduate on time.

Earlier in the night, at 6:30 p.m., San Francisco Chronicle photographer Sam Wolson said he was taking pictures of the demonstration near the Public Safety Building in his professional capacity when an officer “pushed him, and then struck him on the back of the head and neck with a police ‘baton’ from behind, as he was kneeling on the ground taking a photograph with his professional camera.”

Around the same time, three other injuries were reported. Demonstrator Joseph Cuff was walking with his dog when an officer shoved him with his baton, “slamming him to the ground.” (Some have said it was the incident with Cuff that upset the crowd and led to much of the tension and violence that followed.)

Berkeley resident Moni Law said she was trying to encourage the crowd to keep a safe distance from police when an officer “clubbed her from behind.” Nearby, UC Berkeley student Nisa Dang said she too was clubbed while “peacefully participating in the demonstration.” According to court documents, police then threw “flash grenades” and “chemical agents” at the crowd. (Police say they used smoke canisters at this time, but did not use tear gas until later in the night, on Telegraph. According to Berkeley Police, the department never threw flash grenades.)

Curtis Johnson was struck in the knee with what court papers describe as “‘sponge rounds’, a high velocity so-called ‘less lethal’ munition,” after being surrounded without warning by officers, according to the attorneys, near University Avenue around 10 p.m. The blast fractured his knee, they said.

Several others said they were injured by police on Telegraph Avenue around 9:40 p.m. Emily Power said she was jabbed by officers who “hit her repeatedly and took her to the ground” and arrested her. Local journalist Rasheed Shabazz “was visibly engaged in photojournalism,” according to the tort claim, when an officer struck his camera and chest multiple times, then clubbed him in the knee from behind.

Around 10 p.m., Joseph Watkins was on his way home when he reportedly saw police using force on demonstrators and questioned the tactics, according to the tort claim. Officers “grabbed and arrested” him, then covered his face and mouth, not allowing him to tell a National Lawyers Guild representative his name, the attorneys wrote.

Two others, Todd Zimmer and Claire Sandberg, were recording police officers “jabbing and clubbing people” at Telegraph and Channing Way when an officer, according to the documents, struck Sandberg in the face.

Officers then hit Zimmer’s “hand, camera and shoulder multiple times,” wrote the attorneys. “As with Mr. SHABAZZ, they appeared to be targeting his camera.”

Dang, who had been hit earlier near the Public Safety Building, said she was again “pushed and jabbed multiple times by unidentified officers” while on Telegraph Avenue as police moved the crowd south toward Oakland.

Two others, Hudson Soules and Shannon Strazdas, said they were walking home after a protest in Berkeley the following night, Dec. 7, when they were blocked by a police line. When they asked if they could get through to their South Berkeley home, according to court papers, officers pulled Soules “through the line and beat him, hitting him in the head and face and causing his pants to be pulled down. The officers then left his pants down as he stood handcuffed, under arrest, and refused to pull them up.”

Strazdas asked why Soules was being arrested, and police then arrested her.

Wrote the attorneys, “None of the Claimants presented a threat or engaged in any conduct justifying any use of force by the police at any time. Most appear to have been targeted simply because they were toward the front of the crowd, in some cases because they were trying to act as peacekeepers. Others such as WOLSON, SHABAZZ and ZIMMER appear to have been targeted for taking photos or video.”

Of the four arrests, the attorneys said none of their clients had been engaged in unlawful conduct, and that charges have not been filed.

Lederman said the National Lawyers Guild had legal observers at many of the Black Lives Matter demonstrations in the Bay Area in November and December, and provided 24-hour hotlines during those protests to help community members who had trouble with police.

“It was the Berkeley demonstrations that we actually got the most complaints about,” she said.

Lederman said that led her to attempt to speak with as many people as she could who had been injured or affected “to try to see what we could do to improve Berkeley police practices.”

Lederman said she believes the Berkeley Police Department has weaknesses in its approach to general accountability as well as racial profiling, and a “lack of effective oversight.” The department, she added, has a number of “piecemeal” policies related to crowd control that she thinks it has lost track of.

“Their whole approach to the demonstration from their initial planning was just wrong,” she said. “They assumed the demonstrators would cause violence. And that caused them to treat the demonstrators like potentially violent criminals.”

She said officers had too much discretion to use force “against protesters who weren’t actually doing anything wrong,” and said it appeared that “a combination of poor policies, a lack of planning and a lack of sensible command decisions” had led to the issues that arose in December between police and the public.

Chanin, a civil rights attorney who was a founding member of Berkeley’s Police Review Commission, said it had been disappointing to see the local police response to the December demonstrations.

“Other cities had these demonstrations without a lot of dissatisfaction, people getting injured, etc. Even Oakland did,” he said. “It’s very disappointing, because Berkeley used to be much better at this than they were this time.”

Neither he nor Lederman was impressed by the department’s report about the protests, which they said inappropriately lumped all the demonstrators into one group of bad actors, and failed to account for some of the problems that arose: the missing radio traffic recordings from the first night, which weren’t created due to a technical glitch; the lack of detail regarding officer use of force; and the failure to include specifics about “less lethal” munitions deployed by police.

“I just think they spent too much time talking about all the violence of the demonstrators: They meticulously photographed every rock, discussed every bad act. But they couldn’t record their own bad acts, their own force,” said Chanin. “They very painstakingly reported everyone’s use of force except their own.”

The Police Review Commission is set to continue its discussion regarding the police response to the Berkeley protests Wednesday night. Meeting details and materials are posted on the city website.

See Berkeleyside's complete protest coverage here.

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