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Judge won’t issue TRO against Oakland Police

By Josh Richman
Thursday, November 17th, 2011 at 10:51 am in Civil liberties, Oakland, Public safety.

A federal judge yesterday denied civil liberties groups’ and activists’ request for a temporary restraining order to keep Oakland police from using excessive force in violation of their own crowd-control policies.

The American Civil Liberties Union of Northern California and the National Lawyers Guild had sued the Oakland Police Department on Monday on behalf of Timothy Scott Campbell, a videographer who was shot with a bean bag projectile while filming police presence during Occupy Oakland on the night of November 2-3, 2011, and other demonstrators who say they were subjected to excessive force during recent protests.

U.S. District Judge Richard Seeborg directed the parties to file briefs before appearing at a Nov. 30 hearing on whether a preliminary injunction should be issued.

But in his ruling Wednesday, Seeborg said issuing a temporary restraining order now would require him to supervise and oversee the Oakland police’s compliance pending further hearings, and even if everything the plaintiffs claim in their lawsuit is true, they haven’t satisfied the legal standards “for such an expansive and unfettered order.”

“To justify an order generally requiring Oakland to comply with its Crowd Control Policy, plaintiffs must show that such ‘systemwide relief’ is necessary to prevent defendants from concertedly violating the protesters’ constitutional rights,” the judge wrote. “Sporadic or isolated violations of individual protesters’ rights are insufficient to support broad injunctive relief against an entire agency.”

Seeborg wrote that Occupy Oakland protests have continued for days on end without any alleged unconstitutional interference from local authorities. “By plaintiffs’ account, actionable conduct has occurred on no more than two to three occasions, spanning a number of hours, in over a month of almost continual demonstrations taking place across Oakland. Thus, plaintiffs’ request must fail on its own terms.”

The plaintiffs also failed to show a likelihood of immediate, irreparable harm “because the Occupy Oakland protests have continued for over a month with relatively limited confrontations,” the judge wrote.

“Both parties maintain compelling interests,” he acknowledged. “Plaintiffs, of course, seek to protect and exercise their First and Fourth Amendment rights in ways that implicate the public interest. The defendants, on the other hand, have indisputably accommodated the majority of the demonstrations, and seek to protect the safety and property of other Oakland residents.”

ACLU staff attorney Linda Lye said she and her clients “are disappointed” by Seeborg’s denial of a temporary restraining order. “OPD is taking the position that it has not violated the crowd control policy at all, and the judge basically said in his order denying the TRO that the evidence was too anecdotal,” she said.

The plaintiffs disagree with that, Lye said, but whether anecdotal or not, Oakland police have acted in ways that not only injured protestors but also has made others afraid to protest, thus chilling their exercise of First Amdendment rights. “We’re doing our best to ensure OPD does not continue to trample on protesters’ rights.”

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  • Elwood

    May wonders never cease!

    A judge with common sense!

  • John W

    Don’t get too excited yet. He denied the TRO. November 30 hearing on preliminary injunction still ahead.

  • RR, Senile Columnist

    Once again, the freedom-loving Reds denied justice by the bourgeois courts! The ACLU should have known better; the Guild staff learned law via Cliff Notes.