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ACLU loses in court vs. OPD, declares victory

A federal judge has rejected civil-rights groups’ request for a preliminary injunction to keep Oakland Police from using excessive force against Occupy protesters and other demonstrators.

Nonetheless, the American Civil Liberties Union of Northern California declared victory.

“(E)ven without a favorable ruling at this juncture, we’ve reached our ultimate goal with the lawsuit: stopping further violence by OPD against protesters,” ACLU staff attorney Linda Lye blogged today. “Since the filing of the lawsuit, there has not been a repeat of police violence. OPD has toned down its bad behavior. Whether the timing is coincidental, it’s not a far stretch to assume that being under the scrutiny of yet another court may have impacted OPD’s approach to handling demonstrations.”

The ACLU and the National Lawyers Guild filed a lawsuit Nov. 14 on behalf of Scott Campbell, a protester and videographer at whom police apparently fired a beanbag round without provocation or adequate reason.

U.S. District Judge Richard Seeborg basically denied the plaintiffs’ request for a preliminary injunction for the same reasons he had denied the earlier request for a temporary restraining order.

“(P)laintiffs sought a restraining order requiring defendants’ compliance with the entire Crowd Policy. Now they seek an order enjoining Oakland from violating four specific provisions of the Crowd Policy, which govern dispersal orders, and the use of less lethal munitions, flash bang grenades, and tear gas,” Seeborg wrote in his ruling. “As before, the proposed order would require the court to supervise and oversee defendants’ compliance with its own policy. Accordingly, federalism principles still disfavor judicial oversight of local law enforcement agencies, absent evidence of concerted, officially-sanctioned violations of constitutional rights.”

“Whatever the relative strength of each side’s factual record, mere proof of police misconduct does not entitle plaintiffs to an injunction,” the judge wrote. “(B)ecause plaintiffs have not shown a pattern of officially sanctioned misconduct, they have not dispelled doubt as to their standing for injunctive relief, and therefore cannot establish a likelihood of success on the merits.”

UPDATE @ 4:07 P.M.: Gregory Fox, the city’s lawyer, said the city appreciates the attention Seeborg paid to Interim Police Chief Howard Jordan’s testimony. “The judge clearly recognized the chief is committed to both allowing free speech to take place on the streets of Oakland while maintaining order and safety for all those concerned.”

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Judge won’t issue TRO against Oakland Police

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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ACLU, National Lawyers Guild sue Oakland police

The American Civil Liberties Union of Northern California and the National Lawyers Guild sued the Oakland Police Department in federal court Monday, seeking an emergency temporary restraining order to stop police violence against political protesters.

U.S. District Judge Richard Seeborg immediately issued an order requiring the city to respond by 5 p.m. today, Tuesday, Nov. 15.

The groups sued 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 demonstrations.

“I was filming police activity at Occupy Oakland because police should be accountable,” Campbell said in the ACLU’s news release. “Now I’m worried about my safety from police violence and about retaliation because I’ve been outspoken.”

ACLU staff attorney Linda Lye said “excessive police force is never acceptable, especially when it’s in response to political protest.” And NLG attorney Rachel Lederman said the Oakland police’s “unconstitutional actions against protestors on those two nights were wholesale and flagrant violations of Oakland’s own Crowd Control Policy.”

The lawsuit argues the police’s conduct violates the Fourth Amendment by subjecting protesters who posed no safety concerns to unnecessary and excessive force, and violates the First Amendment by interfering with their rights to assemble and demonstrate. The lawsuit asks for a temporary restraining order and preliminary injunction, arguing the department has shown by its recent actions that it will continue to violate protesters’ constitutional rights unless a court intervenes.

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Video: Police fell Occupy Oakland videographer

Here’s a video, uploaded Saturday, of an incident that occurred during the fracas that followed the Occupy Oakland general strike early Thursday morning.

I talked this morning with Scott Campbell, 30, of Oakland, who says he’s the man who was holding the camera.

“When I was approaching the line, an officer told me to stop and step back, so I stepped back 5 or 10 feet and started filming, and I asked if that was ok,” he said.

He said he received no reply until the shot was fired.

“Some of my friends saw me get shot and they ran up and get me into a doorway,” Campbell said; someone brought an ice-pack while a legal observer took down information, and then his friends helped him get to a taxi.

He said he has a 1-1/2 inch wound on his upper right thigh, with considerable swelling and bruising around it. He saw a doctor the next day, who told him to keep the wound bandaged and iced.

“At first I was just stunned, and in an immense amount of pain,” he said. “In real time, I didn’t see the officer raise and fire his weapon… it was just shock, I was extremely shaken. And since then what I’m really wondering is what was going through that person’s head that made him think it was OK to shoot another person with a less-than-lethal weapon for doing absolutely nothing wrong.”

Campbell said he does social and digital media work for a local nonprofit and supports Occupy Oakland. “I don’t camp out there, I’ve been a participant but not an active organizer,” he said. “I’ve come out for general assemblies and marches, and I came out that day for the general strike to show my support.”

He said he brought his camera that night because he wanted to document any excessive force used by police, never imagining that might make him a target. “I don’t know if I was in the right place at the wrong time or the wrong place at the right time.”

He said he wants an independent, not internal investigation of this and other reports of excessive force, and is considering whether to take legal action.

“I’ve been discussing it with some individuals from the National Lawyers Guild, so far nothing’s been decided,” Campbell said this morning. “It’s shocking that someone who is a police officer felt it was appropriate to do that. I’m not sure what the options are, but I would like to have the officer identified and I would like for him to be held accountable.”

We’re contacting the city for a response, and this item will be updated if there’s a reply.

UPDATE @ 6:05 P.M.: Read our more complete report here.

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Chevron counsel targeted for alleged torture role

The National Lawyers Guild San Francisco Bay Area Chapter, a liberal political and social justice nonprofit, yesterday delivered more than 100 complaints against former Defense Department General Counsel William Haynes – now chief corporate counsel for San Ramon-based oil giant Chevron – to the California State Bar’s offices in San Francisco.

The guild says the complaints came from ordinary Americans demanding that the State Bar thoroughly investigate and issue a written decision on Haynes’ actions and inactions at the Defense Department regarding the legal framework for indefinite detentions, military tribunals and “enhanced interrogation” – which many since have deemed torture – of terrorism suspects held at Guantanamo Bay. Complaints came mostly from California residents but also from as far away as Maine and Washington D.C., the guild said, and still are arriving by mail to the guild’s offices, all eventually to be forwarded to the State Bar.

“This campaign is appropriate because William Haynes was one of the lawyers shaping policy that harmed so many prisoners and put all of us in greater danger,” NLGSF Executive Director Carlos Villarreal said in a news release. “Anyone can file a complaint against a California lawyer, and while the process should never be abused, the process ought to be available to anyone and everyone when a lawyer commits wrongdoing from a position of power in our government resulting in such a devastating and widespread effect.”

The State Bar closed without prejudice – meaning, allowing the right to re-file – a more detailed complaint filed by the NLGSF in March; the NLGSF intends to ask for a formal review of that decision next week.

“The State Bar investigates and disciplines far less powerful attorneys who have committed far less egregious acts,” NLGSF Executive Board Member Sharon Adams of Berkeley said in the release. “It was surprising that they would close our complaint without even initiating an investigation. It seems to contradict one of the most important functions of the State Bar – to protect the public.”

“Haynes is still in a position to do great harm, undoubtedly shaping the actions of a major corporation that has committed human rights abuses around the world and had a major impact on our environment,” she added. “There is no doubt that the public needs to be proactive when a lawyer like Haynes is still granted the privilege of practicing law and crafting policies that will continue to have an enormous impact on people.”

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Activists step up efforts to oust John Yoo

Activists are stepping up their grassroots effort to get John Yoo — the former Justice Department attorney not only wrote memos advocating the possible legality of torture and denying enemy combatants protection under the Geneva Conventions, but also rode the Fourth Amendment hard and put it away wet — fired from his job as a UC-Berkeley Boalt Hall School of Law professor.

Yoo will testify tomorrow, Thursday, June 26, before the House Judiciary Committee as part of its ongoing investigation of the Bush Administration’s interrogation rules.

A day after that, the National Lawyers Guild and The World Can’t Wait! Drive Out the Bush Regime! will convene a new coalition with a town-hall meeting at 7 p.m. Friday, June 27, entitled “No To Torture! John Yoo Must Go!” (They! Sure! Do! Like! Their! Exclamation! Points! Don’t! They!?!) It’ll be in the Berkeley Unitarian Universalist Fellowship Hall, 1924 Cedar St. in Berkeley, with admission costing $5 to $20 on a sliding scale; nobody will be turned away for lack of funds. The event will feature Stephen Rohde, past president of the American Civil Liberties Union of Southern California, and audience members will be invited to comment and debate.

Don’t expect anyone at this event to take Yoo’s side, however. The coalition says it has been founded “to demand that John Yoo be fired, disbarred, and prosecuted for war crimes;” it aims to rally the campus community, the legal community and the East Bay at large to demand Yoo’s ousting. It’s planning a “war crimes tribunal” for this fall and a public advertising campaign, among other things.