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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.”

DiFi urges confirmation of NorCal judges

U.S. Sen. Dianne Feinstein, D-Calif., is urging swift action by the full Senate now that the Senate Judiciary Committee has approved the nominations of two people to serve as federal judges in Northern California.

The committee today approved the nomination of U.S. Magistrate Judges Edward Chen and Richard Seeborg to sit as judges of the U.S. District Court for California’s Northern District, based in San Francisco. President Barack Obama nominated them in August and the Judiciary Committee heard from them last month. Here’s a clip of Chen being grilled by U.S. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, and then being defended by Feinstein:

Magistrate Judges assist District Judges by handling simpler matters in civil and criminal cases as directed; they’re appointed to eight-year terms by a majority vote of the district judges in a given district, while district judges are nominated by the President and confirmed by the Senate to lifetime terms.

The Judiciary Committee also today approved the nominations of Los Angeles County Superior Court Judge Jacqueline Nguyen and Los Angeles attorney Dolly Gee to sit on the U.S. District Court for California’s Central District in Los Angeles.

“All of these judges are highly qualified and I believe they will bring significant and diverse experience to the federal bench,” Feinstein said in her news release. “I hope that the Senate will move expeditiously to confirm them. The courts where these nominees will be sitting – in the U.S. District Courts for the Central and Northern Districts of California – have unacceptably high caseloads. The confirmation of these four excellent nominees will be a first step toward ensuring that the courts are able to administer justice in a timely and appropriate manner.”

Chen would be the first Asian American judge ever to sit on the Northern District’s bench; Nguyen, the first Vietnamese American woman ever to serve as a U.S. District Judge; and Gee, the first Chinese American woman to serve as a U.S. District Judge. Asian Americans and Pacific Islanders are among the fastest growing racial groups in the nation, yet only eight of the nation’s 875 active district and appellate judges are Asian American or Pacific Islander.

President Obama nominated these four people after they were selected by bipartisan advisory committees created by Feinstein and U.S. Sen. Barbara Boxer, D-Calif., in each of the state’s four federal districts.

Chen has been a U.S. Magistrate Judge for since 2001; before that, he’d been a staff attorney with the American Civil Liberties Union of Northern California since 1985. He also worked for the firm of Coblentz, Cahen, McCabe & Breyer from 1982 to 1985. He holds undergraduate and law degrees from the University of California, Berkeley.

Seeborg also has been a U.S. Magistrate Judge since 2001; before that, he was an associate from 1982 to 1991 and an equity partner from 1998 to 2000 at Morrison & Foerster in Palo Alto and San Francisco. From 1991 to 1998, Seeborg was an Assistant U.S. Attorney – a federal prosecutor – in San Jose. He holds an undergraduate degree from Yale University and a law degree from Columbia University.