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.”


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.”


Governor in contempt of court over IHSS cuts?

A federal judge today told attorneys for Gov. Arnold Schwarzenegger and various state and Fresno County officials to file a brief by 5 p.m. Thursday on why she shouldn’t hold them in contempt of court for violating her order to leave In-Home Supportive Services’ workers wages as they are.

U.S. District Judge Claudia Wilken of Oakland had granted a preliminary injunction verbally June 25 and issued her written ruling the next day, after hearing arguments from the Service Employees International Union — which along with IHSS clients from around the state had sued to stop the July 1 salary cut for many of the state’s 400,000 IHSS workers — and from the state. The injunction says the state can’t make the cut without first analyzing its impact on the efficiency, economy, quality and accessibility of care.

But the SEIU filed court papers today saying the state is “refusing to permit counties that want to maintain their pre-July 1, 2009 wage rates to do so, and are telling such counties that the lower wage rate, based on the implementation of the statute this Court enjoined, will remain in effect for at least 60 days, over the counties’ objections.”

The union’s new motion asks Wilken to hold the state in contempt with a $500,000-per-day fine starting July 10, or to issue a more specific injunction that ensures continuation of pre-July 1 wage rates. Wilken issued an order later today ordering the state to file its brief by 5 p.m. Thursday, and the union to file its reply by 5 p.m. Friday so she can decide the matter.

Department of Finance spokesman H.D. Palmer had said June 26 that he anticipated the 9th U.S. Circuit Court of Appeal would stay Wilken’s ruling so the wage decrease could take effect on time. The appeals court has indeed taken the case, but as of the close of business today, no such stay had been issued.

“It’s unbelievable that the State feels it can simply ignore a U.S. District Court ruling,” SEIU Executive Vice President Dave Regan said in a news release today. “It’s this type of blatant arrogance that has placed California in the fiscal crisis it’s currently in. The state must comply or face the penalties just as any California resident would be forced to do.”

But California Department of Social Services spokeswoman Lizelda Lopez said the motion for a contempt order wasn’t needed. Wilken’s order simply came a bit too late for the state to reprogram its payment system, she told me this evening, but “we will correct this, the counties will receive the appropriate reimbursement in accordance with the court order.”

“This requires an accounting fix, and we will make that accounting fix,” she said. “The underpayment will be collected and (8:37 p.m.: Lopez now says she misspoke this part.) (W)e do not expect it to have any impact on services for recipients or wages for providers.”

More after the jump…
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