Yvette Felarca; Joshua Anderson; Christopher Anderson; Honest Chung; Morgan Crawford; Yania Escobar; Joseph Finton; Louis Helm; Jacquelyn Kingkade; Benjamin Lynch; Liana Mulholland; Colleen Mica Stumpf; Justin Tombolesi; Erick Uribe; Colleen Young; Anthony Morreale; Sachinthya Wagaarachchi; Francisco Alvarado-Rosas; Julie Klinger; Maximilian McDonald; Taro Yamaguchi-Phillips, Plaintiffs-Appellees,
v.
Robert J. Birgeneau, Chancellor of the University of California-Berkeley, in his individual capacity; George Breslauer, Executive Vice Chancellor and Provost of the University of California-Berkeley, in his individual capacity; Harry Le Grande, Vice Chancellor for Student Affairs of the University of California-Berkeley, in his individual capacity; Linda Williams, Associate Chancellor of the University of California-Berkeley, in her individual capacity; Claire Holmes, Associate Vice Chancellor for Public Affairs and Communications for the University of California-Berkeley, in her individual capacity; Mitchell Celaya, Chief of the University of California Police Department at Berkeley, in his individual capacity; Eric Tejada, Lieutenant; Marc DeCoulode, Lieutenant; Andrew Tucker, Sergeant #13, a police officer for the University of California Police Dept., in his individual capacity, Defendants-Appellants, and Samantha Lachler, Defendant. Yvette Felarca; Joshua Anderson; Christopher Anderson; Honest Chung; Morgan Crawford; Yania Escobar; Joseph Finton; Louis Helm; Jacquelyn Kingkade; Benjamin Lynch; Liana Mulholland; Colleen Mica Stumpf; Justin Tombolesi; Erick Uribe; Colleen Young; Anthony Morreale; Sachinthya Wagaarachchi; Francisco Alvarado-Rosas; Julie Klinger; Maximilian McDonald; Taro Yamaguchi-Phillips, Plaintiffs-Appellees,
v.
Samantha Lachler, Defendant-Appellant, and Robert J. Birgeneau, Chancellor of the University of California-Berkeley, in his individual capacity; George Breslauer, Executive Vice Chancellor and Provost of the University of California-Berkeley, in his individual capacity; Harry Le Grande, Vice Chancellor for Student Affairs of the University of California-Berkeley, in his individual capacity; Linda Williams, Associate Chancellor of the University of California-Berkeley, in her individual capacity; Claire Holmes, Associate Vice Chancellor for Public Affairs and Communications for the University of California-Berkeley, in her individual capacity; Mitchell Celaya, Chief of the University of California Police Department at Berkeley, in his individual capacity; Eric Tejada, Lieutenant; Marc DeCoulode, Lieutenant; Andrew Tucker, Sergeant #13, a police officer for the University of California Police Dept., in his individual capacity, Defendants.
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 ...