In early October 2011, a large protest movement emerged in Oakland, CA, associated with the national Occupy movement. Several of the Occupy Oakland protesters set up an encampment with tents and other facilities in Frank Ogawa Plaza in front of Oakland City Hall. The group regularly held rallies and meetings at the Plaza.
Early in the morning on October 25, 2011 Oakland police and other municipal employees forcibly removed the Occupy protesters and their property from Frank Ogawa Plaza. Approximately seventy people were arrested. The OPD used "less-lethal" weapons, such as rubber-encased bullets, tear gas, and flash-bang grenades, to disperse the demonstrators, and allegedly gave insufficient dispersal notice, inaudible to many of the demonstrators. The OPD destroyed property including tents belonging to the encamped demonstrators.
On November 2, 2011, in response to the police actions on October 25, Occupy Oakland called for a general strike and a day of peaceful protest in the city. Thousands marched to shut down the Port of Oakland. There was minimal conflict between the OPD and the demonstrators during the day, but late in the night and into the next morning the police again used "less-lethal" weapons to disperse the demonstrators, firing them directly at individual demonstrators and into crowds. This again allegedly occurred without the demonstrators first being provided with sufficient notice and opportunity to disperse.
On November 14, 2011 several individual plaintiffs and institutional plaintiff the ACLU of Northern California, represented by attorneys from the National Lawyers Guild, filed a lawsuit in the United States District Court for the District of Northern California. The suit was filed against the City of Oakland and its acting chief of police. The individual plaintiffs alleged in their complaint that they wished to continue exercising their first Amendment rights by participating in further demonstrations but that they were concerned for their safety because of the Oakland Police Department's (OPD) alleged use of excessive force to disperse two earlier Occupy demonstrations and because of incidents of police violence at other Occupy-related rallies and marches. The ACLU of Northern California stated that many of its members would like to participate in Occupy demonstrations but were afraid to do so because of the actions of the OPD. The plaintiffs sought a restraining order and temporary and preliminary injunctions preventing the City of Oakland and the OPD (and law enforcement agencies cooperating with them at their request) from violating Oakland's Crowd Control Policy. They also sought a declaration that the defendants' actions had been unlawful, and to enjoin the defendants from violating the plaintiffs' constitutional rights. They sought compensatory, statutory, and punitive damages, and legal costs and attorneys' fees.
Many of the individual plaintiffs had been injured by the police during the demonstrations. One plaintiff had been filming the police and was asked to step back. He moved back several steps and asked if that was far enough. The police did not respond, and so he continued filming and was then shot in the leg with a "bean bag," actually a bag of lead pellets fired from a shotgun. He recorded the incident with his camera. Another plaintiff was allegedly shot with an unspecified "less-lethal" munition while alone on his bicycle near the demonstration but not between the police and the demonstrators. One plaintiff was hit in the ankle by a projectile. The other individual plaintiffs were demonstrators who had witnessed individuals being injured or incidents of excessive force at the demonstrations and who were therefore afraid to continuing participating in the demonstrations despite their desire to do so. The complaint describes other uses of force by the police at the demonstrations, such as the shooting of a Marine Corps veteran in the head with a non-lethal projectile, which fractured his skull and led to his being hospitalized for three weeks. When other protestors attempted to rush to his aid the police shot tear gas and flash-bangs at the small group, impeding their efforts.
Plaintiffs alleged that during both incidents the OPD had failed to follow the procedures of the City's official Crowd Control Policy, established by the settlement in Local 10 ILWU v. City of Oakland (see related cases). These rules were established in response to earlier use of excessive force by the OPD in response to non-violent protests. The Crowd Control Policy restricted the City's power to declare an assembly unlawful to those circumstances where demonstrators had already acted illegally or where they posed a clear and present danger of imminent violence and forbade the OPD from dispersing demonstrations that had not been declared unlawful. It also required the OPD to provide an opportunity for demonstrators at assemblies declared unlawful to safely disperse prior to arrest, and forbade the indiscriminate use of less-lethal munitions directly against crowds, even when specific individuals in the group were violent.
On November 16, 2011, the Court (Judge Richard Seeborg) declined to issue a restraining order against the defendants requiring them to comply with their own Crowd Control Policy, although by the terms of the Local 10 ILWU settlement and the Policy itself such compliance was already mandatory. The Judge held that the balance of equities and the public interest did not clearly weigh in favor of either party, because the "plaintiffs' own evidence demonstrate[d] that the great majority of the interactions between police and Occupy Oakland protestors ha[d] been peaceful. Thus, to arrive at the conclusion that irreparable injury is imminent, plaintiffs must assume that confrontations between police and protectors will escalate in the future." Campbell v. City of Oakland, 2011 WL 5576921, 2011.
On December 12, 2011, the Court denied the Plaintiffs' motion for a preliminary injunction, relying on substantially the same reasoning.
After the motion for a preliminary injunction was dismissed, the parties began an alternative dispute resolution (ADR) process. At the time of this writing, July 10, 2013, it appears that the parties are close to reaching a settlement agreement. Alex Colbert-Taylor - 07/10/2013