Felarca v. Birgeneau

          Argued and Submitted September 13, 2017 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding D.C. No. 4:11-cv-05719-YGR

          J. Daniel Sharp (argued) and Rebecca M. Suarez, Crowell & Moring LLP, San Francisco, California; Colin M. Proksel, Crowell & Moring LLP, Irvine, California; Russell M. Perry (argued) and Zachery A. Lopes, Rains Lucia Stern St. Phalle & Silver PC, Ontario, California; for Defendants-Appellants.

          Shanta Driver (argued) and Ronald Cruz, United For Equality and Affirmative Action Legal Defense Fund, Detroit, Michigan, for Plaintiffs-Appellees.

          Before: J. Clifford Wallace and Paul J. Watford, Circuit Judges, and W. Louis Sands, ^[*] District Judge.

         SUMMARY ^[**]

         Civil Rights

         The panel reversed the district court's order, on summary judgment, denying qualified immunity to University of California officials for the use of batons against protesters by University police officers.

         Addressing first the claims of direct excessive force brought by plaintiffs against Officer Lachler and Sergeant Tucker, the panel noted that none of the plaintiffs who brought these claims suffered injuries from defendants' blows that required medical treatment or kept them from returning to the protest. Thus, the panel concluded that, even if the force used was of a type that is generally intrusive, the amount of force applied here was minimal. The panel held that the government had a legitimate interest in applying minimal force to maintain order and enforce University policy. On balance, the panel concluded that Officer Lachler and Sergeant Tucker did not use excessive force, and reversed the district court's summary judgment and remanded for the district court to grant summary judgment in their favor.

         The panel next addressed plaintiffs' claims that the supervisory defendants planned the police response and failed to stop assaults by the police. The panel held that the district court erred by denying summary judgment to Vice Chancellor Le Grande, Associate Chancellor Williams, and Associate Vice Chancellor Holmes, who were not in the police chain of command, and had no supervisory authority over the police who allegedly committed the violations. The panel then held that Chancellor Birgeneau, Executive Vice Chancellor Breslauer, and Police Chief Celaya, who were in the police chain of command, did not have sufficient personal involvement in the alleged acts of force. The panel held that summary judgment should have been granted by the district court on these claims, and the panel reversed and remanded for the district court to do so.

         Addressing supervisory force claims against University of California Police Lieutenant DeCoulode and Sergeant Tucker, the panel noted that a number of the plaintiffs had failed to identify the police officers who used excessive force against them and failed to show that these unnamed officers were among those in Lieutenant DeCoulode or Sergeant Tucker's chain of command. Nor had these plaintiffs provided evidence that Lieutenant DeCoulode or Sergeant Tucker ordered or failed to stop any action that they knew or reasonably should have known would cause the officer to use excessive force.

         As to the supervisory force claims brought by plaintiffs that had identified the subordinate officers, the panel held that even assuming, without deciding, that the named subordinate officers used excessive force against each plaintiff, plaintiffs had not met their required burden to show the law was clearly established at the time that the officers' baton strikes violated their constitutional rights. Because plaintiffs had not shown a violation of a clearly established right, it necessarily followed that Lieutenant DeCoulode and Sergeant Tucker could not have violated a clearly established right by supervising the officers who allegedly used force against plaintiffs.

         Concurring, Judge Watford joined all but section III of the court's opinion. In his view, the officers used excessive force when they struck plaintiffs with batons solely for the purpose of dispersing the crowd. Nonetheless, he believed that the officers were entitled to qualified immunity because the law at the time they acted did not clearly establish the illegality of their conduct. He would rule for the defendants on the direct force claims solely on that basis.

          OPINION

          WALLACE, CIRCUIT JUDGE.

         University officials appeal from the denial of qualified immunity for the use of batons against protestors by university police officers. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

         I.

         Thousands of protestors, inspired by the Occupy Wall Street movement, held a rally at the University of California, Berkeley on November 9, 2011. The protestors planned in advance to construct an encampment during the rally in violation of university policy. Berkeley administrators became aware of the plan weeks before when protest organizers distributed flyers seeking tents and other camping supplies. Driven by a concern over the health and safety risks that might accompany a long-term encampment, a team of university administrators preemptively developed an operational plan to deal with the protests and asked campus police to be ready to enforce the university's existing no-camping policy. Two days before the rally, university administrators warned students in a campus-wide email that the no-camping policy would be enforced.

         At noon on November 9, some protestors engaged in a peaceful rally without incident. A few hours later, however, the protestors erected tents. After reading a dispersal order to the protestors, police took the tents down when the protestors refused to do so. Soon, the protestors began setting up more tents in the same area. The police returned wearing riot gear. Many of the protestors formed a human chain to block officers from reaching the tents. Police gave several bullhorn warnings ordering the protestors to take down the tents and disperse, although some protestors could not understand the warnings. When the warnings had no effect, officers then used their hands and batons to move the crowd, gain access to the tents, and maintain a perimeter while dismantling the encampment. Some protestors attempted to grab the officers' batons, shouted, and pushed against them. At least one protestor ended up in the hospital. Following the afternoon's events, university administrators tried to compromise with the protestors, agreeing to round-the-clock protests so long as the protestors did not set up encampments. The protestors rejected the offer, shouting profanities.

         That evening police made a coordinated effort to take down additional tents protestors had set up. Police again gave bullhorn warnings to take down the tents and disperse, but again some protestors could not understand the warnings. When the protestors continued to block the police, the police again used their hands and batons to access and remove the tents. The police arrested at least thirty-six protestors throughout the day for obstructing the officers and resisting arrest. At least one more protestor ended up in the hospital following the evening's events.

         Subsequent to the November 9 protests, some of the protestors filed the instant action against university administrators and police officers, alleging the officers used excessive force against them while removing the tents. Defendants moved for summary judgment on the ground of qualified immunity. The district court denied summary judgment motions by two University of California Police Department (UCPD) officers as to direct excessive force claims, and by five university administrators and three UCPD officers as to supervisory excessive force claims. In denying the motions, the district court concluded that triable issues of fact existed as to the reasonableness of defendants' actions. Defendants appealed.

         We review de novo the denial of a motion for summary judgment predicated on qualified immunity. Sjurset v. Button, 810 F.3d 609, 614 (9th Cir. 2015). Summary judgment is granted only when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id. We view the evidence in the light most favorable to the nonmoving party. Id.

         II.

         Qualified immunity protects public officials from a court action unless their conduct violated a constitutional right that was clearly established at the time. City and County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1774 (2015). The relevant inquiry requires us to ask two questions: (1) whether the facts, taken in the light most favorable to the non-moving party, show that the officials' conduct violated a constitutional right, and (2) whether the law at the time of the challenged conduct clearly established that the conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 201 (2001). A plaintiff must prove both steps of the inquiry to establish the officials are not entitled to immunity from the action. Marsh v. County of San Diego, 680 F.3d 1148, 1152 (9th Cir. 2012). We may address the steps in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         Under the first step of the analysis, police use of force violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 388 (1989). We assess reasonableness by balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (internal quotation marks omitted).

         Under the second step, we consider whether the law was clearly established at the time of the challenged conduct. Sjurset, 810 F.3d at 615. The Supreme Court has repeatedly told courts "not to define clearly established law at a high level of generality." Sheehan, 135 S.Ct. at 1775-76. The law must have been clear enough that "every reasonable official" would know he or she was violating the plaintiffs rights. Sj ...