Case3:03-cv-02961-TEH Document1 Filed06/26/03 Page1 of 16

MICHAEL J. HADDAD (State Bar No. 189114) JULIA SHERWIN (State Bar No. 189268) HADDAD & SHERWIN 1300 Clay Street, Suite 600 Oakland, CA 94612 Telephone: (510) 622-7788 Fax: (510) 482-3873
Attorneys for Plaintiffs
WILLIAM H. GOODMAN (WG 1241) MOORE & GOODMAN, LLP 740 Broadway, 5th Floor New York, N.Y. 10003 Telephone: (212) 353-9587 Fax: (212) 254-0857
Co-counsel for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

SRI LOUISE COLES, RON SMITH, JENNIFER )

HANSEN, DAVE TELLES, SCOTT BOHNING, )

and LINDSAY PARKINSON, individually,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF OAKLAND, a municipal entity,

)

POLICE CHIEF RICHARD WORD, DEPUTY

)

CHIEF PATRICK HAW, CAPTAIN ROD YEE, )

LT. E. POULSON, LT. HOWARD JORDAN,

)

LT. DAVE KOZICKI, SGT. T. HOGENMILLER, )

POLICE OFFICER J. LOW, in their individual

)

and official capacities, and DOES 1-100, Jointly )

and Severally,

)

)

Defendants.

)

)

)

No. Hon.
COMPLAINT AND DEMAND FOR JURY TRIAL

COMPLAINT AND JURY DEMAND

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Plaintiffs, by and through their attorneys, HADDAD & SHERWIN, for their Complaint against Defendants, state as follows:
JURISDICTION 1. This is a civil rights action arising from Defendants’ use of excessive force and unreasonable seizure of Plaintiffs, and violation of Plaintiffs’ rights to freedom of speech, assembly, association, conscience, and press, at a peaceful demonstration at the Port of Oakland on April 7, 2003, in the City of Oakland, Alameda County, California. This action is brought pursuant to 42 USC §§ 1983 and 1988, and the First, Fourth, and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC §§ 1331 and 1343(a)(3) and (4), and the aforementioned statutory and constitutional provisions. The amount in controversy herein, excluding interest and costs, exceeds the minimum jurisdictional limit of this Court.
INTRADISTRICT ASSIGNMENT 2. A substantial part of the events and/or omissions complained of herein occurred in Alameda County, California, and this action is properly assigned to either the Oakland or San Francisco Division of the United States District Court for the Northern District of California.
PARTIES AND PROCEDURE 3. Each Plaintiff herein is a resident of the State of California. 4. Defendant City of Oakland is a municipal corporation established by the laws and Constitution of the State of California, and owns, operates, manages, directs, and controls the Oakland Police Department which employs other defendants in this action.

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5. Defendants Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Police Officer J. Low were at all material times employed as law enforcement officers by Defendant City of Oakland, and were acting within the course and scope of their employment.
6. The true names and capacities of Defendants sued herein as Does 1-100 (“Doe defendants”) are unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names, and Plaintiffs will seek leave to amend this complaint to show their true names and capacities when the same are ascertained. At all material times, each Doe defendant was an employee/agent of Defendant City of Oakland acting within the course and scope of that relationship.
7. Plaintiffs are informed and believe and thereon allege that each of the Defendants sued herein was negligently, wrongfully, and otherwise responsible in some manner for the events and happenings as hereinafter described, and proximately caused injuries and damages to Plaintiffs. Further, one or more Doe defendants were at all material times responsible for the hiring, training, supervision, and discipline of other defendants, and/or directly responsible for violation of Plaintiffs’ rights.
8. Each individual defendant (meaning non-municipal defendants) is sued in his/her individual and official capacities.
9. Plaintiffs are informed and believe, and thereon allege, that each of the defendants was at all material times an agent, servant, employee, partner, joint venturer, co-conspirator, and/or alter ego of the remaining defendants, and in doing the things herein alleged, was acting within the course and scope of that relationship.

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Plaintiffs are further informed and believe, and thereon allege, that each of the defendants herein gave consent, aid, and assistance to each of the remaining defendants, and ratified and/or authorized the acts or omissions of each defendant as alleged herein, except as may be hereinafter otherwise specifically alleged.
10. At all material times, each defendant was jointly engaged in tortious activity, resulting in the deprivation of Plaintiffs’ Constitutional rights and other harm.
11. At all material times, each defendant acted under color of the laws, statutes, ordinances, and regulations of the State of California.
12. At all material times, Defendants Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Police Officer J. Low, and Does 1-100 acted pursuant to the actual customs, policies, practices and procedures of the Oakland Police Department and Defendant City of Oakland.
13. This complaint may be pled in the alternative pursuant to FRCivP 8(e)(2). GENERAL ALLEGATIONS
14. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth here.
15. On the morning of April 7, 2003, each Plaintiff was at a political demonstration at the Port of Oakland. This demonstration was lawful, peaceful, Constitutionally protected, and consisted of approximately a few hundred people gathered to express their opposition to the U.S. war in Iraq and war profiteering by corporations doing business at the Port, among other matters of public concern.

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16. Plaintiffs Sri Louse Coles, Jennifer Hansen, Dave Telles, and Lindsay Parkinson were participating in the demonstration; Plaintiff Scott Bohning came to the demonstration intending to participate, but was prevented from ever doing so by Defendants’ conduct as further described below; and Plaintiff Ron Smith was attending the demonstration as an independent photo-journalist, with press passes prominently displayed on his body. At all material times, each Plaintiff was engaged in constitutionally protected activity concerning matters of great public concern in a public forum, including exercise of their rights to freedom of speech, assembly, association, conscience, and press.
17. At all material times, each Plaintiff herein acted peacefully and lawfully, never threatened any person, and never resisted any lawful order by any police officer.
18. The Oakland Police used unnecessary and unreasonable force against Plaintiffs and other peaceful people at the Port, including but not limited to firing “less lethal” projectiles -- including concussion or “stinger” grenades, rubber bullets, wooden dowels, “flexible batons,” and/or “bean bags” consisting of shot wrapped in a bag -- into the crowd and at Plaintiffs and others; aggressively and forcefully driving motorcycles into some Plaintiffs and other people; striking one Plaintiff and other people with batons; and by other means.
19. All Defendants herein planned, authorized, directed, ratified, and/or personally participated in the following conduct:
a. An officer forcefully struck Plaintiff Sri Louis Coles in her midsection with a baton; An officer struck Ms. Coles with a motorcycle; and an officer shot a projectile at Ms. Coles striking her in her face and neck;

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b. When Ms. Coles attempted to make a complaint of misconduct concerning this incident to an Oakland police officer who was interviewing her while she was receiving treatment for her injuries in the hospital, the officer told Ms. Coles that if she wanted to file a complaint, she would have to go to the Internal Affairs division of the Oakland Police Department;
c. An officer shot a projectile at Plaintiff Ron Smith, striking him in his left hand as he was using that hand to hold a camera to his face to film this demonstration and the Oakland police response to it;
d. An officer shot a projectile at Plaintiff Jennifer Hansen, striking her in the back of her right, upper arm;
e. An officer shot a projectile at Plaintiff Dave Telles, striking him in the back of his left leg;
f. Plaintiff Scott Bohning was struck multiple times by projectiles fired by the police, including on his nose, hand, and three times on his back;
g. Plaintiff Lindsay Parkinson was intentionally struck and knocked to the ground by a police motorcycle driven by Defendant J. Low, pursuant to Defendants’ “BUMP” policy, and lifted from the ground by her ear;
h. Plaintiff Lindsay Parkinson also was wrongfully arrested and incarcerated by Defendant J. Low and other Oakland police officers, without probable cause or other legal right.
20. Each and every use of force described herein was without warning to
Plaintiffs, and was objectively unreasonable under the circumstances.
21. Defendants fired all projectiles at each Plaintiff herein without warning,
even though warnings would have been practicable and appropriate.
22. Defendants fired, and/or authorized, ordered, permitted, and ratified the
firing of projectiles at the backs, heads and vital organs of Plaintiffs and other people
exercising their First Amendment rights at the Port.

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23. Defendants fired, and/or authorized, ordered, permitted, and ratified the firing of projectiles in an unreasonably and dangerously close range to Plaintiffs and other people exercising their First Amendment rights at the Port.
24. Defendants’ firing of “less lethal” projectiles at Plaintiffs and other people exercising their First Amendment rights at the Port was objectively unreasonable under the circumstances, both in Defendants’ decision to use such munitions and in the manner in which those munitions were used.
25. Many officers at the demonstration had concealed their names, badge numbers, and/or identifying information.
26. Each Plaintiff also witnessed police using unreasonable force and violating the rights of many other people behaving peacefully and lawfully, including police striking people, shooting unarmed, non-threatening people with projectiles, driving motorcycles at and striking people with motorcycles, and jabbing people with batons, among other violations of rights.
27. Defendants Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Doe Defendants, planned, authorized, ordered, permitted, and ratified the Oakland Police Department’s response to this entire demonstration, including but not limited to the following:
a. the use of “less lethal” munitions for crowd control and against individuals behaving peacefully and lawfully;
b. the use of batons to strike individuals behaving peacefully and lawfully;
c. the use of police motorcycles, including Harley Davidson motorcycles weighing over 1,000 pounds, to strike, or “BUMP”

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individuals behaving peacefully and lawfully, and against nonviolent individuals for “crowd control;” d. the arrest and incarceration of individuals without probable cause or legal right; e. the concealment of officers’ identities and/or identifying information; f. the singling out of individuals at this particular demonstration for an unusually aggressive police response because of those individuals’ viewpoints and the perceived content of their expression. 28. Defendants’ conduct described herein was intended, and was reasonably likely, to deter and/or chill Plaintiffs’ exercise of Constitutionally protected rights, and/or was in retaliation for Plaintiffs’ exercise of Constitutionally protected rights. 29. Plaintiffs’ exercise of their First Amendment rights to freedom of speech, assembly, association, conscience, and press, and the content and/or viewpoint of Plaintiffs’ protected expression, or perceived expression, was a motivating factor for Defendants’ conduct described herein. 30. At all material times, and alternatively, the actions and omissions of each Defendant were intentional, wanton and/or willful, conscience shocking, reckless, malicious, deliberately indifferent to each Plaintiff’s rights, done with actual malice, grossly negligent, negligent, and objectively unreasonable. 31. On information and belief, Defendants and other officers have given false statements, filed false police reports, improperly completed Use of Force reports, concealed material information, improperly investigated this matter, and have otherwise attempted to cover-up their and other officers’ misconduct, violations of Constitutional rights, and other tortious and unlawful conduct.

COMPLAINT AND JURY DEMAND

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32. As a direct and proximate result of each Defendant’s conduct as set forth
above, each Plaintiff sustained the following physical injuries, among others:
a. Sri Louise Coles: contusions, scrapes, and soft tissue damage in the area of her face and neck;
b. Ron Smith: open fracture to the left distal second metacarpal (left hand), contusions, scrapes, and soft tissue damage;
c. Jennifer Hansen: contusions, scrapes, and soft tissue damage in the area of her right upper arm;
d. Dave Telles: contusions, scrapes, and soft tissue damage in the area of his left upper leg;
e. Scott Bohning: laceration to his nose, injury to his nose and sinus area, contusions, scrapes, and soft tissue damage to his nose, face, a finger of his right hand, back, and buttocks;
f. Lindsay Parkinson: contusions, scrapes, and soft tissue damage in the area of her right thigh, right forearm and wrist, left elbow, and back of her left calf.
33. As a direct and proximate result of each Defendant’s conduct as set forth
above, each Plaintiff sustained the following further injuries and damages, past and
future, among others:
a. mental suffering and emotional distress;
b. physical pain and suffering;
c. economic losses, including lost wages and medical expenses;
d. interference with and violation of constitutional rights;
e. all damages and penalties recoverable under 42 USC § 1983 and federal civil rights law.

COMPLAINT AND JURY DEMAND

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COUNT ONE -- 42 USC §1983 -DEFENDANTS POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, POLICE OFFICER J. LOW, AND DOES 1-100
34. Plaintiffs reallege each and every paragraph in this complaint as if fully set
forth here.
35. By the actions and omissions described above, Defendants Police Chief
Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard
Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Police Officer J. Low, and Does 1-
100 violated 42 USC §1983, depriving Plaintiffs of the following clearly-established and
well-settled constitutional rights protected by the First, Fourth, and Fourteenth
Amendments to U.S. Constitution:
a. The right to be free from excessive or unreasonable force as secured by the Fourth Amendment;
b. The right to be free from unreasonable searches and seizures as secured by the Fourth Amendment;
c. The right to be free from wrongful arrest, detention, and imprisonment as secured by the Fourth Amendment;
d. The right to be free from interference with, or retaliation for, their exercise of constitutionally protected rights, including but not limited to speech, assembly, association, conscience, and press, as secured by the First Amendment;
e. The right to be free from the deprivation of liberty and from the use of unjustifiable force as secured by the Fourteenth Amendment.
36. Defendants subjected Plaintiffs to Defendants’ wrongful conduct, depriving
Plaintiffs of rights described herein, knowingly, maliciously, and with conscious and

COMPLAINT AND JURY DEMAND

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reckless disregard for whether the rights and safety of Plaintiffs and others would be violated by their acts and/or omissions.
37. As a direct and proximate result of Defendants' acts and/or omissions as set forth above, Plaintiffs sustained injuries and damages as set forth at paragraphs 3233, above.
38. The conduct of Defendants Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Police Officer J. Low, and Does 1-100 entitles Plaintiffs to punitive damages and penalties allowable under 42 USC §1983.
39. Plaintiffs also claim reasonable costs and attorneys’ fees under 42 USC §1988 and as allowed by law.
COUNT TWO - 42 USC §1983 – DEFENDANTS CITY OF OAKLAND, POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER AND DOES 1-100 40. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth here. 41. The unconstitutional actions and/or omissions of Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, Police Officer J. Low, and Does 1-100, as well as other officers employed by or acting on behalf of Defendant City of Oakland were pursuant to the following customs, policies, practices, and/or procedures of Defendant City of Oakland, stated in the alternative, which were directed, encouraged, allowed, and/or ratified by policy making officers for the Oakland Police Department:

COMPLAINT AND JURY DEMAND

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a. to cover-up police misconduct and violations of constitutional rights by allowing, tolerating, and/or encouraging police officers to file false police reports, make false statements, falsely charge individuals with crimes or wrongs, obstruct and/or interfere with investigations of unconstitutional, unlawful, or improper police conduct; by withholding and/or concealing material information; and by ignoring and/or failing to properly and adequately investigate and discipline unconstitutional, unlawful, or wrongful police activity;
b. to allow, tolerate, and/or encourage the “Code of Silence” protecting police officers from responsibility for their misconduct, including the suppression and/or fabrication of evidence and coverup of police misconduct;
c. to interfere with, obstruct, and/or violate the rights of individuals in their exercise of constitutionally protected rights, and to chill and/or deter those individuals from exercising their rights, including but not limited to their right to freedom of speech, assembly, association, conscience, and press;
d. to use “less lethal” munitions – including but not limited to concussion or “stinger” grenades, rubber bullets, wooden dowels, “flexible batons,” and/or “bean bags” consisting of shot wrapped in a bag – as well as solid batons and other uses of force, for crowd control in a manner, and under circumstances, where such use of force would be objectively unreasonable;
e. to use “less lethal” munitions – including but not limited to concussion or “stinger” grenades, rubber bullets, wooden dowels, “flexible batons,” and/or “bean bags” consisting of shot wrapped in a bag – as well as solid batons and other uses of force, against individuals who are peacefully and lawfully exercising their First Amendment rights, and against such individuals because of their viewpoint and/or the perceived content of their expression;
f. to use police motorcycles to strike nonviolent individuals to seize them in a manner that is objectively unreasonable under the circumstances, pursuant to a written “BUMP” (“Basic Use of Motorcycle Push”) policy;
g. to detain, arrest, and/or incarcerate individuals who are peacefully and lawfully exercising their First Amendment rights, based on such individuals’ viewpoint and/or the perceived content of their expression, and with the intent to chill or prevent their further exercise of First Amendment rights;

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42. Defendants City of Oakland Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Does 1-100 failed to properly train, instruct, monitor, supervise, and discipline Defendants and other Police Department personnel, with deliberate indifference to Plaintiffs’ constitutional rights, which were thereby violated as described above.
43. The unconstitutional actions and/or omissions of Defendants and other Police Department personnel, as described above, were ordered, approved, tolerated and/or ratified by policy making officers for the Oakland Police Department and the City of Oakland, including but not limited to Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Does 1-100.
44. The aforementioned customs, policies, practices, and procedures, as well as the failures to properly and adequately train, instruct, monitor, supervise and discipline of Defendants City of Oakland, Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Does 1-100 were a moving force and/or a proximate cause of the deprivations of Plaintiffs’ clearly-established and well-settled constitutional rights in violation of 42 USC §1983, as more fully set forth in Paragraph 35, above.
45. As a direct and proximate result of the unconstitutional actions, omissions, customs, policies, practices and procedures of Defendants City of Oakland, Police Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, and Does 1-100, as described above,

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Plaintiffs sustained serious and permanent injuries and are entitled to damages,
penalties, costs and attorneys’ fees as set forth in paragraphs 37 through 39, above.
WHEREFORE, Plaintiffs respectfully request the following relief against each and
every Defendant herein, jointly and severally:
a. compensatory and exemplary damages in an amount according to proof and which is fair, just and reasonable;
b. punitive damages under 42 USC §1983 in an amount according to proof and which is fair, just, and reasonable;
c. all other damages, penalties, costs, interest, and attorneys’ fees as allowed by 42 USC §§ 1983 and as otherwise allowed by law;
d. injunctive relief, including but not limited to the following:
i. an order prohibiting Defendants and their police officers from unlawfully interfering with the rights of Plaintiffs and others in connection with public demonstrations, to freedom of speech, association, assembly, beliefs and conscience;
ii. an order prohibiting Defendants and their police officers from discriminating or retaliating against Plaintiffs or others in connection with public demonstrations based upon their assertion of rights protected by the First and Fourteenth Amendments to the U.S. Constitution, and/or based on their viewpoint or the perceived content of their expression;
iii. an order requiring Defendants to rescind their “BUMP – Basic Use of Motorcycle Push” Technique policy, and all of their policies, practices, procedures, and/or customs allowing police officers to strike or bump any individual with their motorcycles, and further prohibiting Defendants from permitting their police officers to intentionally “bump” individuals with motorcycles;
iv. an order requiring Defendants to rescind all of their policies, practices, procedures, and/or customs allowing police officers to employ so-called “less lethal” weapons as crowd control mechanisms, and further prohibiting

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Defendants from permitting their police officers to deploy such weapons against nonviolent crowds or demonstrators;
v. an order requiring that in the event Defendants and their police officers employ so-called less lethal force, such force only be used in an objectively reasonable manner;
vi. an order prohibiting Defendants and their police officers from concealing their identity in the course and scope of their duties;
vii. an order prohibiting Defendants and their police officers from engaging in the “code of silence” as described herein;
viii. an order requiring Defendants to train all Oakland Police Officers concerning the law and this Court’s orders concerning the issues raised in injunctive relief requests i-vii, above;
ix. an order requiring Defendants to fully comply with the settlement agreement and Consent Decree in Delphine Allen, et al. v. City of Oakland, et al., (Master Case No. C-00-4599 TEH (JL).

e. such other and further relief, including injunctive relief, as this Court may deem appropriate.

DATED: June 26, 2003

HADDAD & SHERWIN

_______________________ MICHAEL J. HADDAD

________________________ JULIA SHERWIN
Attorneys for Plaintiff

COMPLAINT AND JURY DEMAND

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JURY DEMAND Plaintiffs hereby request a trial by jury.

DATED: June 26, 2003

HADDAD & SHERWIN

_______________________ MICHAEL J. HADDAD

________________________ JULIA SHERWIN
Attorneys for Plaintiff

COMPLAINT AND JURY DEMAND

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1 MICHAEL J. HADDAD (State Bar No. 189114) JULIA SHERWIN (State Bar No. 189268)
2 HADDAD & SHERWIN 505 Seventeenth Street
3 Oakland, CA 94612 Telephone: (510) 452-5500
4 Fax: (510) 452-5510

5 Attorneys for Plaintiffs

6 WILLIAM H. GOODMAN (WG 1241) MOORE & GOODMAN, LLP
7 740 Broadway, 5th Floor New York, N.Y. 10003
8 Telephone: (212) 353-9587 Fax: (212) 254-0857
9 Co-counsel for Plaintiffs
10 UNITED STATES DISTRICT COURT
11

12

NORTHERN DISTRICT OF CALIFORNIA

13

SRI LOUISE COLES, RON SMITH, JENNIFER HANSEN, DAVE TELLES, SCOTT BOHNING, and

) ) No. C 03-2961 TEH (JL)

14 LINDSAY PARKINSON, individually,

) ) Hon. Thelton E. Henderson

15 vs.

Plaintiffs,

)

)

16 CITY OF OAKLAND, a municipal entity,

) THIRD AMENDED ) COMPLAINT AND DEMAND

17

POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT.

) FOR JURY TRIAL )

18 19 20 21 22 23 24 25

E. POULSON, LT. HOWARD JORDAN,
LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY (8004), R. GUTIERREZ (8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. GONZALES (8151), S. KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668), SGT. GARY TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A. STEINBERGER (7818), F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J. DOOLITTLE (8007), C. SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW (7732), J. FISHER (7498), SGT. W. WALLACE (7215), and DOES 1-100, in their individual and official capacities, Jointly and Severally,

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

)

26

27

28

No. C 03-2961 TEH (JL): THIRD AMENDED COMPLAINT AND JURY DEMAND

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1

Plaintiffs, by and through their attorneys, HADDAD & SHERWIN, for their Third

2 Amended Complaint against Defendants, state as follows:

3

JURISDICTION

4 1. This Third Amended Complaint is filed pursuant to the Stipulation and Order
5

6 filed June 23, 2005. This is a civil rights action arising from Defendants’ use of excessive

7 force and unreasonable seizure of Plaintiffs, and violation of Plaintiffs’ rights to freedom

8 of speech, assembly, association, conscience, and press, at a peaceful demonstration at

9 the Port of Oakland on April 7, 2003, in the City of Oakland, Alameda County, California.

10 This action is brought pursuant to 42 USC §§ 1983 and 1988, and the First, Fourth, and
11 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon
12 28 USC §§ 1331 and 1343(a)(3) and (4), and the aforementioned statutory and
13 14 constitutional provisions. Plaintiffs further invoke the supplemental jurisdiction of this
15 Court pursuant to 28 USC §1367 to hear and decide claims arising under state law.

16

INTRADISTRICT ASSIGNMENT

17

2. A substantial part of the events and/or omissions complained of herein

18 occurred in Alameda County, California, and this action is properly assigned to either the
19 Oakland or San Francisco Division of the United States District Court for the Northern
20 District of California.
21

22

PARTIES AND PROCEDURE

23

3. Each Plaintiff herein is a resident of the State of California.

24

4. Defendant City of Oakland is a municipal corporation established by the

25 laws and Constitution of the State of California, and owns, operates, manages, directs,
26 and controls the Oakland Police Department which employs other defendants in this 27
action. 28

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1

5. Defendants POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK

2 HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN,
3 LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY (8004), R. GUTIERREZ 4
(8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. GONZALES (8151), S. 5 6 KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668), SGT. GARY
7 TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A. STEINBERGER (7818),

8 F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J. DOOLITTLE (8007), C.

9 SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW (7732), J. FISHER (7498),

10 and SGT. W. WALLACE (7215) were at all material times employed as law enforcement

11 officers by Defendant City of Oakland, and were acting within the course and scope of
12 their employment.
13

14

6. The true names and capacities of Defendants sued herein as Does 1-100

15 (“Doe defendants”) are unknown to Plaintiffs, who therefore sue said Defendants by such

16 fictitious names, and Plaintiffs will seek leave to amend this complaint to show their true

17 names and capacities when the same are ascertained. At all material times, each Doe
18 defendant was an employee/agent of Defendant City of Oakland acting within the course 19
and scope of that relationship. 20
7. Plaintiffs are informed and believe and thereon allege that each of the 21 22 Defendants sued herein was negligently, wrongfully, and otherwise responsible in some

23 manner for the events and happenings as hereinafter described, and proximately caused

24 injuries and damages to Plaintiffs. Further, one or more Doe defendants were at all

25 material times responsible for the hiring, training, supervision, and discipline of other
26 defendants, and/or directly responsible for violation of Plaintiffs’ rights. 27

28

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1

8. Each individual defendant (meaning non-municipal defendants) is sued in

2 his/her individual and official capacities.

3

9. Plaintiffs are informed and believe, and thereon allege, that each of the

4 defendants was at all material times an agent, servant, employee, partner, joint venturer,
5

6 co-conspirator, and/or alter ego of the remaining defendants, and in doing the things

7 herein alleged, was acting within the course and scope of that relationship. Plaintiffs are

8 further informed and believe, and thereon allege, that each of the defendants herein gave

9 consent, aid, and assistance to each of the remaining defendants, and ratified and/or

10 authorized the acts or omissions of each defendant as alleged herein, except as may be
11 hereinafter otherwise specifically alleged.
12 10. At all material times, each defendant was jointly engaged in tortious activity,
13 14 resulting in the deprivation of Plaintiffs’ Constitutional rights and other harm.

15

11. At all material times, each defendant acted under color of the laws, statutes,

16 ordinances, and regulations of the State of California.

17

12. At all material times, POLICE CHIEF RICHARD WORD, DEPUTY CHIEF

18 PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN,
19 LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY (8004), R. GUTIERREZ
20 (8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. GONZALES (8151), S.
21

22 KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668), SGT. GARY

23 TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A. STEINBERGER (7818),

24 F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J. DOOLITTLE (8007), C.

25 SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW (7732), J. FISHER (7498),
26 SGT. W. WALLACE (7215), and Does 1-100 acted pursuant to the actual customs, 27

28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page5 of 25

1 policies, practices and procedures of the Oakland Police Department and Defendant City

2 of Oakland.

3

13. This complaint may be pled in the alternative pursuant to FRCivP 8(e)(2).

4 GENERAL ALLEGATIONS
5

14. Plaintiffs reallege each and every paragraph in this complaint as if fully set 6

7 forth here.

8

15. On the morning of April 7, 2003, each Plaintiff was at a political

9 demonstration at the Port of Oakland. This demonstration was lawful, peaceful,

10 Constitutionally protected, and consisted of approximately a few hundred people

11 gathered to express their opposition to the U.S. war in Iraq and war profiteering by

12 corporations doing business at the Port, among other matters of public concern.
13

14

16. Plaintiffs Sri Louse Coles, Jennifer Hansen, Dave Telles, and Lindsay

15 Parkinson were participating in the demonstration; Plaintiff Scott Bohning came to the

16 demonstration intending to participate, but was prevented from ever doing so by

17 Defendants’ conduct as further described below; and Plaintiff Ron Smith was attending

18 the demonstration as an independent photo-journalist, with press passes prominently
19 displayed on his body. At all material times, each Plaintiff was engaged in constitutionally
20 protected activity concerning matters of great public concern in a public forum, including
21 22 exercise of their rights to freedom of speech, assembly, association, conscience, and
23 press.

24

17. At all material times, each Plaintiff herein acted peacefully and lawfully,

25 never threatened any person, and never resisted any lawful order by any police officer.

26

18. The Oakland Police used unnecessary and unreasonable force against

27 Plaintiffs and other peaceful people at the Port, including but not limited to firing “less
28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page6 of 25

1 lethal” projectiles -- including concussion or “stinger” grenades, wooden dowels, and

2 “flexible batons,” also known as “bean bags,” consisting of lead birdshot shot wrapped in
3 a bag and fired from a 12 gauge shot gun -- into the crowd and at Plaintiffs and others; 4
aggressively and forcefully driving motorcycles into some Plaintiffs and other people; 5 6 striking one Plaintiff and other people with batons; and by other means. Defendants’
7 conduct at the Port in the course of each use of force by Defendants against Plaintiffs

8 caused a governmental termination of each Plaintiff’s freedom of movement through

9 means intentionally applied.

10

19. All Defendants herein planned, authorized, directed, ratified, and/or

11 personally participated in the following conduct:

12

a. An officer forcefully struck Plaintiff Sri Louis Coles in her midsection

13

with a baton; An officer, believed to be Defendant M. Nichelini, struck

Ms. Coles with a motorcycle; and an officer, believed to be

14

Defendant DelRosario, shot a projectile at Ms. Coles striking her in

her face and neck; 15

b. When Ms. Coles attempted to make a complaint of misconduct

16

concerning this incident to an Oakland police officer who was

interviewing her while she was receiving treatment for her injuries in

17

the hospital, the officer told Ms. Coles that if she wanted to file a

complaint, she would have to go to the Internal Affairs division of the

18

Oakland Police Department;

19

c. An officer shot a projectile at Plaintiff Ron Smith, striking him in his

left hand as he was using that hand to hold a camera to his face to

20

film this demonstration and the Oakland police response to it;

21

d. An officer shot a projectile at Plaintiff Jennifer Hansen, striking her in

the back of her right, upper arm; 22

e. An officer shot a projectile at Plaintiff Dave Telles, striking him in the

23

back of his left leg;

24

f. Plaintiff Scott Bohning was struck multiple times by projectiles fired

by the police, including on his nose, hand, and three times on his

25

back;

26

g. Plaintiff Lindsay Parkinson was intentionally struck and knocked to

the ground by a police motorcycle driven by Defendant Low pursuant

27

to Defendants’ “BUMP” policy, and lifted from the ground by her ear

by Defendants Low, Fisher, Wallace, and/or another officer; 28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page7 of 25

1

h. Defendant Low’s intentional motorcycle BUMP of Plaintiff Lindsay

Parkinson was witnessed and ratified by Defendants Fisher and

2

Wallace, who failed to intercede, protect Ms. Parkinson, or report this

use of excessive force by Defendant Low. 3

i. Plaintiff Lindsay Parkinson was wrongfully arrested and incarcerated

4

by Defendants Low, Fisher, Wallace, and/or other Oakland police

officers, without probable cause or other legal right; 5

j. Plaintiff Lindsay Parkinson also was maliciously prosecuted with

6

malice and without probable cause, and for the purpose of denying

her equal protection of the law under the Fourteenth Amendment

7

and other rights protected by the First Amendment; those charges

were based on false information and conduct from Defendant Low

8

Fisher, and Wallace who wrongfully caused those charges to be

filed; those charges were ultimately resolved in Ms. Parkinson’s favor

9

when they were dismissed on the motion of the District Attorney.

10

20. Each and every use of force against Plaintiffs described herein was done in

11 the course of a seizure of Plaintiffs, and was excessive and objectively unreasonable
12 under the circumstances. Further, the “less lethal” shots fired to the faces of Plaintiffs Sri 13
Louise Coles, Scott Bohning, and Ron Smith, constitute deadly force, and were fired 14 15 without any cause to believe that those Plaintiffs posed a significant and immediate threat
16 of death or serious physical injury to anyone.

17

21. Defendants fired all projectiles at each Plaintiff herein without warning, even

18 though warnings would have been practicable and appropriate.

19

22. Defendants fired, and/or authorized, ordered, permitted, and ratified the

20 firing of projectiles at the backs, heads and vital organs of Plaintiffs and other people
21 exercising their First Amendment rights at the Port.
22

23

23. Defendants fired, and/or authorized, ordered, permitted, and ratified the

24 firing of projectiles in an unreasonably and dangerously close range to Plaintiffs and other

25 people exercising their First Amendment rights at the Port.

26

24. Defendants’ firing of “less lethal” projectiles at Plaintiffs and other people

27 exercising their First Amendment rights at the Port was objectively unreasonable under 28

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1 the circumstances, both in Defendants’ decision to use such munitions and in the manner

2 in which those munitions were used.

3

25. Officers at the demonstration had concealed their names, badge numbers,

4 and/or identifying information.
5

6

26. Each Plaintiff also witnessed police using unreasonable force and violating

7 the rights of many other people behaving peacefully and lawfully, including police striking

8 people, shooting unarmed, non-threatening people with projectiles, driving motorcycles at

9 and striking people with motorcycles, and jabbing people with batons, among other

10 violations of rights.
11 27. Defendants DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E.
12 POULSON, LT. HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER,
13 14 SGT. E. TRACEY (8004), R. GUTIERREZ (8091), A. OERLEMANS (7632), R.
15 HOLMGREN (8282), P. GONZALES (8151), S. KNIGHT (7776), E. ROMANS (8045), C.

16 DELROSARIO (7668), SGT. GARY TOLLESON, SGT. D. CAMPBELL (7762), R.

17 MOORE (8051), A. STEINBERGER (7818), F. UU (7472), B. WORDEN (8107), J.

18 FUKUDA (7693), J. DOOLITTLE (8007), and C. SAUNDERS (8254) each fired and/or
19 caused to be fired “less lethal” projectiles at Plaintiffs and others in the manner described
20 herein.
21

22

28. Defendants POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK

23 HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN, LT. DAVE

24 KOZICKI, SGT. T. HOGENMILLER, SGT. GARY TOLLESON, SGT. TRACEY, and DOE

25 DEFENDANTS, planned, authorized, ordered, permitted, and ratified the Oakland Police
26 Department’s response to this entire demonstration, including but not limited to the 27
following: 28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page9 of 25

1

a. the use of “less lethal” munitions against individuals behaving

2

lawfully;

3

b. the use of “less lethal” munitions against individuals behaving peacefully and who did not pose any threat to anyone;

4

c. the use of batons to strike individuals behaving peacefully and

5

lawfully;

6

d. the use of Harley Davidson police motorcycles to strike or “BUMP”

7

individuals behaving peacefully and lawfully, and against non-violent

individuals for “crowd control;”

8

e. the arrest, incarceration, and recommendation/institution of charges

9

for individuals without probable cause or legal right;

10

f. the concealment of officers’ identities and/or identifying information;

11 g. the singling out of individuals at this particular demonstration for an

12

unusually aggressive police response because of those individuals’

viewpoints and the perceived content of their expression; 13

14

h. wrongfully causing baseless charges against Lindsay Parkinson to be filed.

15 29. Defendants’ conduct described herein was intended, and was reasonably
16 likely, to deter and/or chill Plaintiffs’ exercise of Constitutionally protected rights, and/or
17

18 was in retaliation for Plaintiffs’ exercise of Constitutionally protected rights.

19

30. Plaintiffs’ exercise of their First Amendment rights to freedom of speech,

20 assembly, association, conscience, and press, and the content and/or viewpoint of

21 Plaintiffs’ protected expression, or perceived expression, was a substantial or motivating
22 factor for Defendants’ conduct described herein. 23
31. A number of Plaintiffs have refrained from going to other demonstrations or 24 25 events to express their views, or have gone to other demonstrations and events with
26 great apprehension and reserve, and have continued to have their rights to free speech

27 and expression chilled as a result of Defendants’ conduct culminating on April 7, 2003 as

28 described herein.

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1

32. At all material times, and alternatively, the actions and omissions of each

2 Defendant were intentional, wanton and/or willful, conscience shocking, reckless,

3 malicious, deliberately indifferent to each Plaintiff’s rights, done with actual malice,

4 grossly negligent, negligent, and objectively unreasonable.
5

6

33. On information and belief, Defendants and other officers have given false

7 statements, filed false police reports, copied sections of their reports verbatim from other

8 officers’ reports, improperly completed Use of Force reports, concealed material

9 information, improperly investigated this matter, and have otherwise attempted to cover-

10 up their and other officers’ misconduct, violations of Constitutional rights, and other
11 tortious and unlawful conduct.
12 34. As a direct and proximate result of each Defendant’s conduct as set forth
13 14 above, each Plaintiff sustained the following physical injuries previously described with
15 more precision in their depositions taken in this matter, among other injuries:

16

a. Sri Louise Coles: contusions, scrapes, and soft tissue damage

about her body, including in the area of her face and neck;

17

b. Ron Smith: open fracture to the left distal second metacarpal (left

18

hand), contusions, scrapes, and soft tissue damage;

19

c. Jennifer Hansen: contusions, scrapes, and soft tissue damage in the

area of her right upper arm;

20

d. Dave Telles: contusions, scrapes, and soft tissue damage in the

21

area of his left upper leg;

22

e. Scott Bohning: laceration to his nose, injury to his nose and sinus

area, contusions, scrapes, and soft tissue damage to his nose, face,

23

a finger of his right hand, back, and buttocks;

24

f. Lindsay Parkinson: contusions, scrapes, and soft tissue damage in

the area of her left thigh, left forearm and wrist, right elbow, and back

25

of her left calf.

26

35. As a direct and proximate result of each Defendant’s conduct as set forth

27 above, Plaintiff Lindsay Parkinson also sustained a wrongful arrest and incarceration, 28

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1 malicious prosecution, and all damages and losses stemming therefrom, including loss of

2 freedom, emotional distress, pain and suffering, lost wages, lost educational and
3 employment opportunities, and attorneys’ fees and costs incurred. 4
36. As a direct and proximate result of each Defendant’s conduct as set forth 5 6 above, each Plaintiff sustained the following further injuries and damages, past and
7 future, among others:

8

a. mental suffering and emotional distress;

9

b. physical pain and suffering;

10

c. permanent scarring and disfigurement;

11

d. economic losses, including lost wages and medical expenses;

12

e. interference with and violation of constitutional rights;

13

f. all damages and penalties recoverable under 42 USC § 1983 and

federal civil rights law.

14 37. Each Plaintiff herein filed timely government claims, pursuant to California

15

Government Code section 910 et seq., placing Defendant City of Oakland on official 16

17 notice of their claims.

18 COUNT ONE

19

-- 42 USC §1983 --

DEFENDANTS POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK HAW,

20

CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN,

21

LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY (8004), R. GUTIERREZ (8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. GONZALES

22

(8151), S. KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668), SGT. GARY TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A. STEINBERGER

23 (7818), F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J. DOOLITTLE (8007),

C. SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW (7732), J. FISHER

24

(7498), SGT. W. WALLACE (7215), and Does 1-100

25

26

38. Plaintiffs reallege each and every paragraph in this complaint as if fully set

27 forth here.

28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page12 of 25

1

39. By the actions and omissions described above, POLICE CHIEF RICHARD

2 WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT.
3 HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY 4
(8004), R. GUTIERREZ (8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. 5 6 GONZALES (8151), S. KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668),
7 SGT. GARY TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A.

8 STEINBERGER (7818), F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J.

9 DOOLITTLE (8007), C. SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW

10 (7732), J. FISHER (7498), SGT. W. WALLACE (7215), and Does 1-100 violated 42 USC
11 §1983, depriving Plaintiffs of the following clearly-established and well-settled
12 constitutional rights protected by the First, Fourth, and Fourteenth Amendments to U.S.
13 14 Constitution:

15

a. The right to be free from excessive or unreasonable force as secured by the Fourth Amendment;

16

b. The right to be free from unreasonable searches and seizures as

17

secured by the Fourth Amendment;

18

c. The right to be free from wrongful arrest, detention, and imprisonment as secured by the Fourth Amendment;

19

d. The right to be free from interference with, or retaliation for, their

20

exercise of constitutionally protected rights, including but not limited to speech, assembly, association, conscience, and press, as secured by

21

the First and Fourteenth Amendments;

22

e. The right to be free from the deprivation of equal protection of the law as secured by the Fourteenth Amendment;

23

f. The right to be free from the deprivation of liberty and from the use of

24

unjustifiable force without due process of law as secured by the Fourteenth Amendment;

25

g. Plaintiff Lindsay Parkinson’s right to be free from malicious prosecution

26

as secured by the First, Fourth, and Fourteenth Amendments;

27

h. Plaintiff Lindsay Parkinson’s right to be free from malicious prosecution for the purpose of depriving her of rights secured by the First, Fourth,

28

and Fourteenth Amendments.

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Case3:03-cv-02961 Document92 Filed07/12/05 Page13 of 25

1 40. Defendants subjected Plaintiffs to Defendants’ wrongful conduct, depriving
2 3 Plaintiffs of rights described herein, knowingly, maliciously, and with conscious and
4 reckless disregard for whether the rights and safety of Plaintiffs and others would be

5 violated by their acts and/or omissions.

6

41. As a direct and proximate result of Defendants' acts and/or omissions as

7 set forth above, Plaintiffs sustained injuries and damages as set forth at paragraphs 34-
8 36, above.
9 42. The conduct of Defendants POLICE CHIEF RICHARD WORD, DEPUTY
10

11 CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD

12 JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. E. TRACEY (8004), R.

13 GUTIERREZ (8091), A. OERLEMANS (7632), R. HOLMGREN (8282), P. GONZALES

14 (8151), S. KNIGHT (7776), E. ROMANS (8045), C. DELROSARIO (7668), SGT. GARY
15 TOLLESON, SGT. D. CAMPBELL (7762), R. MOORE (8051), A. STEINBERGER (7818), 16
F. UU (7472), B. WORDEN (8107), J. FUKUDA (7693), J. DOOLITTLE (8007), C. 17 18 SAUNDERS (8254), M. NICHELINI (8035), OFFICER LOW (7732), J. FISHER (7498),
19 SGT. W. WALLACE (7215), and Does 1-100 entitles Plaintiffs to punitive damages and

20 penalties allowable under 42 USC §1983 and California law.

21

43. Plaintiffs also claim reasonable costs and attorneys’ fees under 42 USC

22 §1988 and as otherwise allowed by law.

23 COUNT TWO

24

- 42 USC §1983 –

DEFENDANTS CITY OF OAKLAND, POLICE CHIEF RICHARD WORD, DEPUTY

25

CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD

JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT GARY TOLLESON,

26

SGT. TRACEY, AND DOES 1-100

27

44. Plaintiffs reallege each and every paragraph in this complaint as if fully set

28 forth here.

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Case3:03-cv-02961 Document92 Filed07/12/05 Page14 of 25

1

45. The unconstitutional actions and/or omissions of POLICE CHIEF RICHARD

2 WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT.
3 HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. TOLLESON, 4
SGT. TRACEY, AND DOES 1-100, as well as other officers employed by or acting on 5 6 behalf of Defendant City of Oakland were pursuant to the following customs, policies,
7 practices, and/or procedures of DEFENDANT CITY OF OAKLAND, stated in the

8 alternative, which were directed, encouraged, allowed, and/or ratified by policy making

9 officers for the Oakland Police Department:

10

a. to cover-up police misconduct and violations of constitutional rights

11

by allowing, tolerating, and/or encouraging police officers to file false police reports, copy other officers’ police reports and submit them as

12

their own, make false statements, falsely charge individuals with crimes or wrongs, obstruct and/or interfere with investigations of

13

unconstitutional, unlawful, or improper police conduct; by withholding and/or concealing material information; and by ignoring and/or failing

14

to properly and adequately investigate and discipline unconstitutional, unlawful, or wrongful police activity;

15

b. to allow, tolerate, and/or encourage the “Code of Silence” protecting

16

police officers from responsibility for their misconduct, including the suppression and/or fabrication of evidence and cover-up of police

17

misconduct;

18

c. to interfere with, obstruct, and/or violate the rights of individuals in their exercise of constitutionally protected rights, and to chill and/or

19

deter those individuals from exercising their rights, including but not limited to their right to freedom of speech, assembly, association,

20

conscience, and press;

21

d. to use “less lethal” munitions – including but not limited to concussion or “stinger” grenades, wooden dowels, “flexible batons,”

22

and/or “bean bags” consisting of lead birdshot shot wrapped in a bag and fired from a 12 gauge shotgun – as well as solid batons and

23

other uses of force, for crowd control in a manner, and under circumstances, where such use of force would be objectively

24

unreasonable;

25

e. to use “less lethal” munitions – including but not limited to concussion or “stinger” grenades, wooden dowels, “flexible batons,”

26

and/or “bean bags” consisting of lead birdshot shot wrapped in a bag and fired from a 12 gauge shotgun – as well as solid batons and

27

other uses of force, against individuals who are peacefully and lawfully exercising their First Amendment rights, and against such

28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page15 of 25

1

individuals because of their viewpoint and/or the perceived content of

their expression; 2

f. to use police motorcycles to strike nonviolent individuals to seize

3

them in a manner that is objectively unreasonable under the

circumstances, pursuant to custom and a written “BUMP” (“Basic

4

Use of Motorcycle Push”) policy;

5

g. to detain, arrest, and/or incarcerate individuals who are peacefully

and lawfully exercising their First Amendment rights, based on such

6

individuals’ viewpoint and/or the perceived content of their

expression, and with the intent to chill or prevent their further

7

exercise of First Amendment rights;

8

h. to select and/or allow Defendant DelRosario to participate in a

“Tango Team” on April 7, 2003, where DelRosario could shoot

9

demonstrators and others at the Port of Oakland with “bean bags”

and/or other munitions, selecting his own targets, despite his known

10

history in the department, including his evaluations and prior

complaint and misconduct history, and without due concern for

11

Defendant DelRosario’s adherence to generally accepted law

enforcement standards concerning bias, truthfulness, judgment, and

12

use of force.

13

46. DEFENDANTS CITY OF OAKLAND POLICE CHIEF RICHARD WORD,

14 DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD
15 JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. TOLLESON, SGT. 16
TRACEY, AND DOES 1-100 failed to properly train, instruct, monitor, supervise, and 17 18 discipline Defendants and other Police Department personnel, with deliberate
19 indifference to Plaintiffs’ constitutional rights, which were thereby violated as described

20 above.

21

47. The unconstitutional actions and/or omissions of Defendants and other

22 Police Department personnel, as described above, were known, and were ordered,
23 approved, tolerated and/or ratified by policy making officers for the Oakland Police
24 Department and the City of Oakland, including but not limited to POLICE CHIEF
25 26 RICHARD WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E.
27 POULSON, LT. HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER,

28 SGT. TOLLESON, SGT. TRACEY, AND DOES 1-100.

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1

48. The aforementioned customs, policies, practices, and procedures, as well

2 as the failures to properly and adequately train, instruct, monitor, supervise and discipline
3 of Defendants CITY OF OAKLAND, POLICE CHIEF RICHARD WORD, DEPUTY CHIEF 4
PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD JORDAN, LT. 5 6 DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. TOLLESON, SGT. TRACEY, AND
7 DOES 1-100 were a moving force and/or a proximate cause of the deprivations of

8 Plaintiffs’ clearly-established and well-settled constitutional rights in violation of 42 USC

9 §1983, as more fully set forth in Paragraph 39, above.

10

49. As a direct and proximate result of the unconstitutional actions, omissions,

11 customs, policies, practices and procedures of DEFENDANTS CITY OF OAKLAND,
12 POLICE CHIEF RICHARD WORD, DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD
13

14 YEE, LT. E. POULSON, LT. HOWARD JORDAN, LT. DAVE KOZICKI, SGT. T.

15 HOGENMILLER, SGT. TOLLESON, SGT. TRACEY, AND DOES 1-100, as described

16 above, Plaintiffs sustained serious and permanent injuries and are entitled to damages,

17 penalties, costs and attorneys’ fees as set forth in paragraphs 41 through 43, above.

18

COUNT THREE

19

-- DIRECT VIOLATION OF THE CALIFORNIA CONSTITUTION --

ALL DEFENDANTS

20 50. Plaintiffs reallege each and every paragraph in this complaint as if fully set
21

22 forth here.

23

51. Through their actions, omissions, customs, and policies as described

24 above, each Defendant violated each Plaintiff’s rights protected by the California

25 Constitution, including but not limited to the following:

26

a. The right to be free from excessive and/or unreasonable force as

27

secured by the California Constitution, Article 1, Section 13;

28

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1

52. As a direct and proximate result of Defendants' violation of Plaintiffs’ rights

2 under the California Constitution, Plaintiffs sustained injuries and damages as set forth at

3 Paragraphs 41 through 43, above, and Plaintiffs further claim all damages, penalties, and

4 costs available under California law.
5

6

COUNT FOUR -- VIOLATION OF CIVIL CODE §52.1 --

7

ALL DEFENDANTS

8

53. Plaintiffs reallege each and every paragraph in this complaint as if fully set

9 forth here.

10

54. Defendants’ acts, omissions, customs, and policies, as described above,

11 violated Plaintiffs’ rights under California Civil Code §52.1, by interfering, or attempting to
12 interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of rights
13 secured by the Constitution or laws of the United States, or of rights secured by the
14 15 Constitution or laws of the State of California, including but not limited to 42 U.S.C. §
16 1983 and the following clearly-established rights under the United States Constitution and

17 the California Constitution:

18

a. The right to be free from excessive or unreasonable force as secured by

19

the Fourth Amendment;

20

b. The right to be free from unreasonable searches and seizures as secured by the Fourth Amendment;

21

c. The right to be free from wrongful arrest, detention, and imprisonment

22

as secured by the Fourth Amendment;

23

d. The right to be free from interference with, or retaliation for, their exercise of constitutionally protected rights, including but not limited to

24

speech, assembly, association, conscience, and press, as secured by the First and Fourteenth Amendments;

25

e. The right to be free from the deprivation of equal protection of the law as

26

secured by the Fourteenth Amendment;

27

f. The right to be free from the deprivation of liberty and from the use of unjustifiable force without due process of law as secured by the

28

Fourteenth Amendment;

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1

g. The right to be free from excessive and/or unreasonable force as

secured by the California Constitution, Article 1, Section 13; 2

h. The right to enjoy and defend life and liberty, acquire, possess and

3

protect property, and pursue and obtain safety, happiness and privacy,

as secured by the California Constitution, Article 1, Section 1; 4

i. The right to freely speak and express their sentiments on all subjects,

5

including but not limited to the freedom of conscience, beliefs, and

associations, as secured by the California Constitution, Article 1, Section

6

2;

7

j. The right to life, liberty and property and not to be deprived of those

without due process of law as secured by the California Constitution,

8

Article 1, Section 7;

9

k. The right to equal protection of the laws as secured by California

Constitution, Article 1, Section 7. 10

11

55. As a direct and proximate result of Defendants' violation of California Civil

12 Code §52.1, Plaintiffs sustained injuries and damages as set forth in paragraphs 41

13 through 43, above. Further, Plaintiffs claim all damages allowed by law, including
14 California Civil Code §§52 and 52.1, and including costs, attorneys fees, treble damages,
15
16 and civil penalties.

17

COUNT FIVE

-- VIOLATION OF CALIFORNIA CIVIL CODE §51.7 --

18

ALL DEFENDANTS

19

56. Plaintiffs reallege each and every paragraph in this complaint as if fully set

20 forth here.

21

57. By their actions, omissions, customs, and policies, as described above,

22 each Defendant violated each Plaintiff’s rights to be free from any violence, or
23 intimidation by threat of violence, committed against his/her person because of his/her
24 25 political affiliation, perceived political views, perceived speech and expression, and

26 association with protestors at the Port of Oakland on April 7, 2003, as secured by

27 California Civil Code §51.7.

28

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1

58. As a direct and proximate result of the violation of California Civil Code

2 §51.7 by Defendants, Plaintiffs sustained injuries and damages as set forth above at

3 Paragraphs 41 through 43, and are further entitled to attorney fees, costs, treble
4 damages, civil penalties, and exemplary damages as allowed by California Civil Code §§
5
6 51.7, 52, and as otherwise allowed under California law.

7

COUNT SIX -- ASSAULT AND BATTERY --

8

ALL DEFENDANTS

9

59. Plaintiffs reallege each and every paragraph in this complaint as if fully set

10 forth here.

11

60. Defendants’ actions and omissions as described above constitute assault

12 and battery.
13 61. As a direct and proximate result of Defendants' assault and battery of
14 Plaintiffs, Plaintiffs sustained injuries and damages as set forth above in paragraphs 41
15 16 through 43, and are further entitled to damages, penalties, and costs as otherwise
17 allowed under California law.

18

19

20

21 62.

22 forth here.
23

24

63.

COUNT SEVEN -- NEGLIGENCE: PERSONAL INJURIES --
ALL DEFENDANTS Plaintiffs reallege each and every paragraph in this complaint as if fully set
At all times, each Defendant owed each Plaintiff the duty to act with due

25 care in the execution and enforcement of any right, law, or legal obligation, including in

26 crowd control and conduct as described above.

27

28

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1

64. At all times, each Defendant owed Plaintiffs the duty to act with reasonable

2 care, including in crowd control and conduct as described above.

3

65. These general duties of reasonable care and due care owed to Plaintiffs by

4 Defendants include but are not limited to the following specific obligations:
5

6

a. To refrain from using excessive or unreasonable force against Plaintiffs;

7

b. To refrain from wrongfully arresting and incarcerating protestors,

8

including Plaintiff Lindsay Parkinson;

9

c. To refrain from giving false and/or misleading information about Plaintiffs to law enforcement authorities;

10

d. To refrain from subjecting Plaintiffs to force, arrest, incarceration, or

11

limitation of their constitutional rights because of Plaintiffs’ exercise, or perceived exercise, of rights to freedom of speech, conscience,

12

assembly, association, and press, among other rights exercised or attempted to be exercised by Plaintiffs as described herein;

13

e. To refrain from abusing their rights and/or authority granted them by

14

law;

15

f. To refrain from violating the rights of Plaintiffs guaranteed by the United States and California Constitutions and law, as more fully set

16

forth herein;

17

g. To refrain from violating lawful policies and procedures of the Oakland Police Department;

18

h. To refrain from violating lawful training each Defendant has received

19

in the course of his law enforcement career;

20

66. Additionally, the general duties of reasonable care and due care owed to

21 Plaintiffs by DEFENDANTS CITY OF OAKLAND, POLICE CHIEF RICHARD WORD,

22 DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD

23 JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. TOLLESON, SGT.

24 TRACEY, AND DOES 1-100, include but are not limited to the following specific

25 obligations:
26 a.
27

to properly and adequately investigate, train, supervise, monitor and discipline police officers to ensure that officers act at all times in the

28

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1

public interest, with due regard for the rights and safety of others,

2

and in conformance with law;

3

b. to make, enforce, and at all times act in conformance with policies and customs that are protective of individual rights and safety,

4

including Plaintiffs’.

5

c. to refrain from making, enforcing, and/or tolerating the wrongful

6

policies and customs set forth at paragraph 45, above.

7

67. Defendants, through their acts and omissions, and through their conduct

8 described herein, breached each and every one of the aforementioned duties and

9 obligations owed to Plaintiffs.

10

68. As a direct and proximate result of Defendants' negligence, Plaintiffs

11 sustained injuries and damages as set forth above in paragraphs 41 through 43, and are
12 further entitled to damages, penalties, and costs as otherwise allowed under California
13

14 law.

15

COUNT EIGHT

-- FALSE ARREST --

16

DEFENDANTS CITY OF OAKLAND, POLICE CHIEF RICHARD WORD, DEPUTY

CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD 17 JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT GARY TOLLESON,

18

OFFICER L. LOW, AND DOES 1-100

19

69. Plaintiffs reallege each and every paragraph in this complaint as if fully set

20 forth here.

21

70. Defendants CITY OF OAKLAND, POLICE CHIEF RICHARD WORD,

22 DEPUTY CHIEF PATRICK HAW, CAPTAIN ROD YEE, LT. E. POULSON, LT. HOWARD
23 JORDAN, LT. DAVE KOZICKI, SGT. T. HOGENMILLER, SGT. TOLLESON, OFFICER
24 LOW, OFFICER FISHER, SGT. WALLACE, AND DOES 1-100, arrested and/or caused
25 26 to be arrested and/or authorized, ordered, tolerated, or ratified the arrest of Plaintiff
27 Lindsay Parkinson without probable cause or other legal right, and had her incarcerated

28 and charged in violation of law, including but not limited to Cal. Penal Code § 853.6.

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1

71. As a direct and proximate result of Defendants' false arrest of Plaintiff

2 Lindsay Parkinson, Plaintiff Lindsay Parkinson sustained injuries and damages as set

3 forth above in paragraphs 41 through 43, and is further entitled to damages, penalties,

4 and costs as otherwise allowed under California law.
5

6

WHEREFORE, Plaintiffs respectfully request the following relief against each and

7 every Defendant herein, jointly and severally:

8

a. compensatory and exemplary damages in an amount according to proof

and which is fair, just and reasonable; 9

b. punitive damages under 42 USC §1983 in an amount according to proof

10

and which is fair, just, and reasonable;

11

c. all other damages, penalties, costs, interest, and attorneys’ fees as allowed

by 42 USC §§ 1983, 1988, Cal. Civil Code §§ 52, 52.1, 51.7, Cal. Code of

12

Civil Procedure § 1021.5, and as otherwise allowed by law;

13

d. injunctive relief, including but not limited to the following:

14

i. an order prohibiting Defendants and their police officers

from unlawfully interfering with the rights of Plaintiffs and

15

others in connection with public demonstrations, to

freedom of speech, association, assembly, beliefs and

16

conscience;

17

ii. an order prohibiting Defendants and their police officers

from discriminating or retaliating against Plaintiffs or

18

others in connection with public demonstrations based

upon their assertion of rights protected by the First and

19

Fourteenth Amendments to the U.S. Constitution, and/or

based on their viewpoint or the perceived content of their

20

expression;

21

iii. an order requiring Defendants to rescind their “BUMP –

Basic Use of Motorcycle Push” Technique policy, and all

22

of their policies, practices, procedures, and/or customs

allowing police officers to strike or bump any individual

23

with their motorcycles, and further prohibiting Defendants

from permitting their police officers to intentionally “bump”

24

individuals with motorcycles;

25

iv. an order requiring Defendants to rescind all of their

policies, practices, procedures, and/or customs allowing

26

police officers to employ so-called “less lethal” weapons

as crowd control mechanisms, and further prohibiting

27

Defendants from permitting their police officers to deploy

such weapons without legal justification or against

28

nonviolent crowds or demonstrators;

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1

2

3

4

5

6

7

8

9

10

11

12

13

e.

14

15 DATED: 16

17

18

19

20

21

22

23

24

25

26

27

28

v. an order requiring that in the event Defendants and their police officers employ so-called less lethal force, such force only be used in a lawful manner;
vi. an order prohibiting Defendants and their police officers from concealing their identity in the course and scope of their duties;
vii. an order prohibiting Defendants and their police officers from engaging in the “code of silence” as described herein;
viii. an order requiring Defendants to train all Oakland Police Officers concerning the law and this Court’s orders concerning the issues raised in injunctive relief requests ivii, above;
ix. an order requiring Defendants to fully comply with the settlement agreement and Consent Decree in Delphine Allen, et al. v. City of Oakland, et al., (Master Case No. C00-4599 TEH (JL).
such other and further relief, including injunctive relief, as this Court may deem appropriate.

July 12, 2005

HADDAD & SHERWIN

_______________________ MICHAEL J. HADDAD Attorneys for Plaintiff

No. C 03-2961 TEH (JL): THIRD AMENDED COMPLAINT AND JURY DEMAND

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Case3:03-cv-02961 Document92 Filed07/12/05 Page24 of 25

1 JURY DEMAND

2 3 Plaintiffs hereby request a trial by jury.

4

5 DATED: July 12, 2005

6

HADDAD & SHERWIN

7

8

_______________________

9

MICHAEL J. HADDAD Attorneys for Plaintiff

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case3:03-cv-02961 Document92 Filed07/12/05 Page25 of 25

1

PROOF OF SERVICE

(FRCivP 5 and 28 USC §1746) 2

Re: Sri Louise Coles, et al. v. City of Oakland, et al., U.S.D.C. No. C 03-2961TEH 3

I declare that: I am employed in the County of Alameda, State of California. I am 4
over the age of eighteen years and not a party to the within entitled cause; my business

5 address is 505 Seventeenth Street, Oakland, California 94612.

6

On July 12, 2005, I served the attached THIRD AMENDED COMPLAINT, on the

7 parties in said causes by E-FILING to all counsel of record, including:

8

Mr. James B. Chanin Ms. Julie M. Houk

9

Law Offices of James B. Chanin 3050 Shattuck Ave.

10

Berkeley, CA 94705 FAX: (510) 848-5819

11 Mr. John L. Burris

12

Law Offices of John L. Burris 7677 Oakport Street, Suite 1120

13

Oakland, CA 94621 FAX: (510) 839-3882

14 Mr. Gregory Fox

15

Bertrand, Fox & Elliot 2749 Hyde Street

16 San Francisco, CA 94109

17

Mr. Randolph Warren Hall Office of the City Attorney

18

1 Frank Ogawa Plaza Sixth Floor

19 Oakland, CA 94612

20

I declare under penalty of perjury that the foregoing is true and correct and that on

the date stated above, this declaration was executed at Oakland, California.

21

22

____________________________________

23

MICHAEL J. HADDAD

24

25

26

27

28

No. C 03-2961 TEH (JL): THIRD AMENDED COMPLAINT AND JURY DEMAND

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 Case3:03-cv-02961 Document47 Filed01/28/05 Page1 of 17

1 Gregory M. Fox, State Bar No. 070876 Arlene C. Helfrich, State Bar No. 096461
2 BERTRAND, FOX & ELLIOT The Waterfront Building
3 2749 Hyde Street San Francisco, California 94109
4 Telephone: (415) 353-0999 Facsimile: (415) 353-0990
5

6 Randolph W. Hall, State Bar No. 080142 Chief Asst. City Attorney
7 Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor
8 Oakland CA 94612 Telephone: (510) 238-3601
9 Facsimile: (510) 238-6500
10 Attorneys for Defendants CITY OF OAKLAND
11 and POLICE CHIEF RICHARD WORD
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 SRI LOUISE COLES, et al.

) Case No. C -03-2961 TEH (JL)

16

Plaintiffs,

) ) DEFENDANT CITY OF OAKLAND’S

17 vs.

) MOTION TO DISMISS FOR FAILURE TO ) STATE A CLAIM PURSUANT TO FRCP

18

) 12(b)(6)

CITY OF OAKLAND, a municipal entity, et al. )

19

)

20

Defendants.

)

)

21

)

)

22

)

23

) )

24

)

)

25

)

)

26

)

27

28

____________________________________________________________________________________________________________

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2961 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page2 of 17

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES...............................................................................................................ii

3 NOTICE OF MOTION........................................................................................................................1
4 I. INTRODUCTION...........................................................................................................................1
5
6 II. STATEMENT OF FACT…...........................................................................................................2

7 III. LEGAL ARGUMENT..................................................................................................................2 Crowd Dispersal Tactics Do Not Constitute a Seizure Under The Fourth Amendment

8

Therefore Plaintiffs’ Claim For Violation of Their Right To Be Free Of Unreasonable Seizure

Under The Fourth Amendment Must Be Dismissed 9

10

A. Excessive Force Claims Which Do Not Involve Either Search or Seizure Do Not Fall

Within The Ambit of the Fourth Amendment, Therefore, A Preliminary Question In

11

This Case Is Whether Crowd Dispersal Tactics Constitute a Seizure..……………......3

12

B. Case Law Demonstrates That Fourth Amendment Seizures Require Restraint of

13

Liberty And Intent to Seize..……………………………………………………….....5

14

C. Cases Addressing Crowd Dispersal Use of Force Issues Show

Inconsistencies in Applying Fourth Amendment Precedent..........................………...9

15

16

D. Crowd Dispersal Tactics Involve Neither Restraint of Liberty Nor Intent To Seize And Therefore Do Not Come Within Any Definition Of Fourth Amendment Seizure

17

..……………………………………………………………………………………….11

18

E. Policy Considerations Weigh Against Equating Crowd Dispersal Tactics With Fourth

Amendment Seizure...……………………………………….......................………....12 19

20 IV. CONCLUSION...........................................................................................................................13
21

22

23

24

25

26

27

28

i

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2961 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page3 of 17

1

TABLE OF AUTHORITIES

2 Cases
3 Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). ...............................................2
4 Brower v. County of Inyo, 489 U.S. 593, 596-597..............................................................4, 7, 8, 10, 11
5
6 California v. Hodari D. 499 U.S. 621 (1991) .................................................................4, 6, 7, 9, 11, 12
7 Conley v. Gibson, 355 U.S. 41, 45-46 (1956) .........................................................................................3
8 Daniels v. Williams, 474 U.S. 327, 331 ................................................................................................12

9 Darrah v. Oak Park, 255 F.3d 301 (6th Cir. 2001)..........................................................................9, 11

10 De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). .......................................................................3
11 Evans v. Avery, 100 F.3d at 1036 ..........................................................................................................5
12 Forrester v. San Diego, 25 F3d 804 (9th Cir. 1994) ...........................................................................10 13
Fuller v. Vines, 36 F3d 65 (1994).................................................................................................8, 9, 11 14
Gause v. Philidelphia, 2001 U.S. Dist. LEXIS 17428 (2001) .............................................................8, 9 15
Graham v. Conner, 490 U.S. 386 (1989)..............................................................................3, 4, 5, 6, 12 16 17 Headwaters Forest Defense v. Humboldt, 240 F3d 1185 (9th Cir. 2001)...........................................10
18 Lamb v. City of Decatur,947 F. Supp. 1261 (1996)........................................................................10, 11
19 Levine v.Diamanthuset, 950 F.2d 1278, 1483 (9th Cir. 1991) ...............................................................2

20 Marbet v. City of Portland, 2003 U.S. Dist. LEXIS 25685 (2003) .................................................10, 11

21 Robinson v. Solano County, 278 F.3d 1007, 1013 (2002)......................................................................8
22 Russ v. Jordan, 1992 U.S. Dist. LEXIS 19484, (1992)…………………………………………………10, 11 23
Sacramento v. Lewis, 523 U.S. 833 (1998)…………………………………………………………3, 4, 5, 12 24
Schaefer v. Goch, 153 F.3d 793, (1998)…………………………………………………………….…8, 9, 11 25 26 Secot v. City of Sterling Heights, 985 F. Supp. 715 (1997)……………………………………………10, 11

27 Tennessee v. Garner, 471 U.S. 1 (1985)…………………………………………………………….…………7

28 Terry v. Ohio, 392 U.S. 1 (1968) …………………………………………………………………………6, 7, 9

ii

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2961 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page4 of 17

1 United States v. Mendenhall, 446 U.S. 544, 554 (1980)……………………………………………6, 7, 8, 9 2
Statutes 3
U.S. Constitution, Amendment 4............................................................................................................5 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

iii

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2961 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page5 of 17

1

NOTICE OF MOTION

2

Please take notice that on Monday, March 7, 2005, at 10:00 a.m., or as soon thereafter as the

3 matter may be heard in Courtroom 12 of the above-entitled court, defendants City of Oakland, Police

4 Chief Richard Word, Deputy Chief Patrick Haw, Captain Rod Yee, Lt. E. Poulson, Lt. Howard

5 Jordan, Lt. Dave Kozicki, Sgt. T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren,

6 P. Gonzales, S. Knight, Sgt. G. Tolleson, Police Officer M. Nichelini, and Police Officer Low, will

7 move the court to dismiss the specified portion of Plaintiff’s Second Amended Complaint for failure

8 to state a claim upon which relief can be granted. The said Oakland police defendants bring this

9 motion under Federal Rule of Civil Procedure, Rule 12(b)(6) as the Second Amended Complaint fails 10 to state a viable cause of action against defendants as to all1 plaintiffs under the Fourth Amendment

11

I. INTRODUCTION

12

On the morning of April 7, 2003, hundreds of people took part in a rally against the war in

13 Iraq by gathering at the Port of Oakland to demonstrate. On several occasions during the course of

14 the demonstration, after issuing dispersal orders to the crowd, officers from the Oakland Police

15 Department (OPD) employed crowd dispersal tactics which included the use of “less than lethal”

16 ammunition, a motorcycle “BUMP” technique and police batons to move protesters away from areas

17 where they were blocking traffic. Plaintiffs in the instant action have asserted multiple claims against

18 the City of Oakland and 16 individual Oakland police officers, including claims that OPD crowd 19 dispersal tactics on the day of the April 7th protest constitute a violation of plaintiffs’ constitutional

20 right to be free from unreasonable seizure under the Fourth Amendment of the United States

21 Constitution. Pursuant to Federal Rule of Civil Procedure, Rule 12(b)(6), defendants argue that the

22 complaint fails to state a cause of action under the Fourth Amendment because the crowd dispersal

23 tactics used by Oakland police do not constitute a seizure within the meaning of the Fourth

24 Amendment.

25

26

27
1 Lindsey Parkinson, one of the six named plaintiffs, was arrested at the scene by OPD. By this motion, defendants do
28 not challenge Ms. Parkinsons’ right to assert a Fourth Amendment claim based on her arrest by OPD, conceding that an
arrest is clearly a seizure within the meaning of the Fourth Amendment.

1

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2962 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page6 of 17

1

II. STATEMENT OF FACTS

2

Defendants present the following statement of facts as alleged by plaintiffs in their Second

3 Amended Complaint, (SAC). All paragraph references are to this pleading.

4

On April 7, 2003, a demonstration against the war in Iraq took place at the Port of Oakland.

5 The demonstration was express opposition to the war in Iraq and against war profiteering by

6 corporations doing business at the Port. (¶ 15).

7

Plaintiffs Coles, Hansen, Telles and Parkinson participated in the demonstration and plaintiff

8 Bohning arrived in the area intending to participate. Plaintiff Smith attended the demonstration as in

9 independent photo-journalist. (¶ 16).

10

During the course of the demonstration, members of the Oakland police employed less-lethal

11 munitions for crowd control, including “concussion or “stinger” grenades, wooden dowels, “flexible

12 batons,” aka “bean bags” consisting of smallshot wrapped in a bag.” Oakland police also used batons

13 and police motorcycles to “BUMP” individuals for “crowd control.” (¶¶ 18, 28).

14

Except for plaintiff Lindsey Parkinson, who alleges that she was injured while being arrested

15 by defendant Officer Low and whose claims related to her arrest are not the subject of this motion,

16 all of plaintiffs’ alleged injuries stem from the use of OPD crowd control tactics. (¶ 19).

17

These facts demonstrate that, except with regard to the claim of plaintiff Parkinson, the

18 Oakland police actions at issue constitute crowd dispersal efforts aimed at moving the demonstrators

19 away from the police rather than into police control.

20

21

III. LEGAL ARGUMENT

22

Crowd Dispersal Tactics Do Not Constitute a Seizure Under The Fourth Amendment

Therefore Plaintiffs’ Claim For Violation of Their Right To Be Free Of Unreasonable

23

Seizure Under The Fourth Amendment Must Be Dismissed

24 A motion to dismiss under Federal Rule 12(b)(6) tests the legal sufficiency of the claims
25 stated in the compliant. Levine v.Diamanthuset, 950 F.2d 1278, 1483 (9th Cir. 1991). Dismissal of 26
claims is proper where there is either a “lack of cognizable legal theory” or “the absence of sufficient 27
facts alleged under a cognizable legal theory.” Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 28
(9th Cir. 1990). In determining the adequacy of a pleading, the court must determine whether

2

DEFENDANT CITY OF OAKLAND’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO

FRCP 12(b)(6)

Case No. C -03-2962 TEH (JL)

Case3:03-cv-02961 Document47 Filed01/28/05 Page7 of 17

1 plaintiffs would be entitled to some form of relief if the facts alleged in the complaint were true.

2 Conley v. Gibson, 355 U.S. 41, 45-46 (1956); De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978).

3

One of the legal theories alleged by plaintiffs is that defendants’ conduct deprived plaintiffs’

4 of “The right to be free from excessive or unreasonable force as secured by the Fourth Amendment”

5 and “The right to be free from unreasonable searches and seizures as secured by the Fourth

6 Amendment.” (SAC, ¶¶ 39, 54). The only facts alleged to support this theory arise from OPD’s use

7 of less-lethal ammunition, motorcycles and batons for crowd dispersal. Except for plaintiff

8 Parkinson, there is no allegation that any plaintiff was arrested or otherwise detained by the police.

9 Even if plaintiffs’ allegations of OPD crowd dispersal tactics are true, such facts would not give rise

10 to a Fourth Amendment violation because no search or seizure is involved. Not every claim of police

11 excessive force is governed by the Fourth Amendment because, as in this case, not all police use of

12 force occurs in the context of either a search or a seizure. A review of Fourth Amendment precedent

13 reveals that crowd control dispersal tactics do not fit within any definition of Fourth Amendment

14 seizure and policy considerations weigh against expanding the definition of Fourth Amendment

15 seizure to include instances where police use force to disperse a crowd. Therefore plaintiffs’ cause of 16 action for violation of the 4th A should be dismissed.

17

A. Excessive Force Claims Which Do Not Involve Either Search or Seizure Do Not Fall

Within The Ambit of the Fourth Amendment, Therefore, A Preliminary Question In This

18

Case Is Whether Crowd Dispersal Tactics Constitute a Seizure

19 While most excessive force claims arise in the context of criminal investigations and can be
20 clearly recognized as occurring during a search or seizure, it is not the case that all claims of police
21 use of excessive force will fall within the ambit of the Fourth Amendment. In Sacramento v. Lewis,
22 523 U.S. 833 (1998), the Supreme Court examined the question of whether a police officer who
23 participated in a high speed chase of two teenagers on a motorcycle, which resulted in the accidental
24 death of the passenger Lewis, violated either Lewis’ Fourth Amendment right to freedom from
25 unreasonable seizure or his substantive due process rights under the Fourteenth Amendment. The
26 Court notes first the rule announced in Graham v. Conner, 490 U.S. 386 (1989) that “”where a
27 particular amendment provides an explicit textual source of constitutional protection against a
28 particular sort of government behavior, that Amendment, not the more generalized notion of

3

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1 substantive due process, must be the guide for analyzing these claims.” Id at 395. Because Graham

2 also held that “[a]ll claims that law enforcement officers have used excessive force—deadly or not—

3 in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed

4 under the Fourth Amendment and its reasonableness standard, rather than under a ‘substantive due

5 process’ approach,” id at 395 (emphasis added). Oral argument and several amicus briefs in the Lewis

6 case argued that, by chasing the motorcycle, the officer was attempting to “seize” the suspects within

7 the meaning of the Fourth Amendment, and in fact succeeded in “seizing” Lewis when the

8 motorcycle crashed. We quote at length the Court’s response to this argument as it provides a

9 succinct review of the Fourth Amendment issues presented here.

10

“The argument [that the Graham rule requires that the Fourth Amendment.

11

standard apply in this case] is unsound. Just last Term, we explained that Graham

12

“does not hold that all constitutional claims relating to physically abusive

government conduct must arise under either the Fourth or Eighth Amendments; 13
rather, Graham simply requires that if a constitutional claim is covered by a 14
specific constitutional provision, such as the Fourth or Eighth Amendment, the

15

claim must be analyzed under the standard appropriate to that specific provision,

16

not under the rubric of substantive due process.” [Citations].

17

Substantive due process analysis is therefore inappropriate in this case only

18

if respondents’ claim is “covered by “ the Fourth Amendment. It is not.

19

The Fourth Amendment covers only “searches and seizures,” neither of

20

which took place here. No one suggests that there was a search, and our cases

foreclose finding a seizure. We held in California v. Hodari D., 499 U.S. 621,626, 21
that a police pursuit in attempting to seize a person does not amount to a “seizure”

22

within the meaning of the Fourth Amendment. And in Brower v. County of Inyo,

23

489 U.S. 593, 596-597, we explained “that a Fourth Amendment seizure does not

24

occur whenever there is a governmentally caused termination of an individual’s

25

freedom of movement (the innocent passerby), nor even whenever there is a

26

governmentally caused and governmentally desired termination of an individual’s

27

freedom of movement (the fleeing felon), but only when there is a governmental

termination of freedom of movement through means intentionally applied.” We 28
illustrated the point by saying that no Fourth Amendment seizure would take place

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1

where a “pursuing police car sought to stop the suspect only by the show of

2

authority represented by flashing lights and continuing pursuit,” but accidentally

3

stopped the suspect by crashing into him. That is exactly this case. . . . . Graham’s

more-specific provision rule is therefore no bar to respondents’ suit [under the 4
Fourteenth Amendment]. See, e.g., . . . Evans v. Avery, 100 F.3d at 1036 (noting 5
that “outside the context of a seizure, . . . a person injured as a result of police

6

misconduct may prosecute a substantive due process claim under section 1983”) . .

7

. .Lewis, supra, at 843, 844.”

8

The Court’s analysis in Lewis applies to the instant case. Plaintiffs’ Section 1983

9 claim regarding excessive force should be analyzed under the 14th Amendment’s

10 substantive due process standard unless it is “covered by” the Fourth Amendment. It is

11 not.

12

The Fourth Amendment covers only “searches and seizures,” U.S. Const., Amdt.

13 42. No one suggests that the plaintiffs in this case were searched, therefore, plaintiffs must

14 demonstrate that they were seized. No one suggests that plaintiffs were arrested or subject

15 to an investigatory stop, therefore, plaintiffs must demonstrate that being subjected to the

16 crowd dispersal tactics used by OPD comes within the “other seizure” category described

17 by Graham, but case law and common understanding preclude such a finding.

18

B. Case Law Demonstrates That Fourth Amendment Seizures Require Restraint of Liberty

19

And Intent to Seize

20

The Graham court’s holding that claims of police excessive force in the course of an arrest,

21 investigatory stop, or other ‘seizure’ are “to be analyzed under the Fourth Amendment” derives

22 directly from the language of the Amendment which clearly limits its application to “unreasonable

23 searches and seizures.” It is not surprising then that most case law which specifically addresses the

24 definition of seizure under the Fourth Amendment concerns fact situations where citizens interact

25 with police in the context of police investigations of criminal activity. A brief review of the seminal

26 cases which address seizures in the context of arrests and investigatory stops will assist in the

27

28 2 The text of the Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
5

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1 analysis of whether policy crowd dispersal tactics should be included in the category of “other

2 seizures” referred to in Graham.

3

Twenty years prior to Graham, the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968)

4 addressed whether a police officer has the right to ‘stop and frisk’ a citizen based only on reasonable

5 suspicion, rather than probable cause. The Court’s analysis focuses first on when the suspects were

6 “seized” by the officer, finding that “whenever an officer accosts an individual and restrains his

7 freedom to walk away, he has “seized” that person,” and “[o]nly when the officer, by means of

8 physical force or show of authority, has in some way restrained the liberty of a citizen may we

9 conclude that a "seizure" has occurred.” Id at 16 and 19, n.16. Under Terry, restraint of liberty or

10 freedom is an essential element of a Fourth Amendment seizure.

11

In United States v. Mendenhall, 446 U.S. 544 (1980), DEA agents stopped a young traveler at

12 an airport based on their belief that she fit a “drug courier profile.” In reviewing whether

13 Mendenhall’s Fourth Amendment rights were honored, the Court indicated its “adherence to the view

14 that a person is “seized” only when, by means of physical force or a show of authority, his freedom of

15 movement is restrained,” and articulated a test for determining when a “seizure” within the meaning

16 of the Fourth Amendment occurs: “a person has been “seized” within the meaning of the Fourth

17 Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person

18 would have believed that he was not free to leave.” Id at 554. Again, the Court indicates that

19 restraint of liberty or freedom is an essential element of Fourth Amendment seizure.

20

What constitutes a seizure was more recently addressed by the Supreme Court in California v.

21 Hodari D. 499 U.S. 621 (1991). A police officer acting without probable cause was in pursuit of

22 Hodari when he tossed away a small rock of cocaine. The officer then tackled Hodari and placed him

23 under arrest. The question before the court was whether Hodari had be seized at the time he dropped

24 the drugs. The court notes that “from the time of the founding fathers to the present, the word

25 “seizure” has meant a “taking of possession.” [Citations]. For most purposes at common law, the

26 word connoted not merely grasping, or applying physical force to, the animate or inanimate object in

27 question, but actually bringing it within physical control.” Id. at 624. (Emphasis added). The Court

28

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to
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1 goes on to examine the meaning of seizure within the context of making an arrest3, and distinguishes

2 between arrests based on a show of authority and those based on the application of physical force. In

3 the former instance, Hodari holds that there is no Fourth Amendment seizure if the suspect does not

4 yield to the show of authority. In the latter instance, even a minimal touching for the purpose of

5 arresting a suspect will constitute a seizure, with the caveat that, if the suspect escapes, there is no

6 “continuing seizure.” Id at 625. In other words, a seizure occurs by application of force to arrest so

7 long as the force applied continues to restrain the liberty of the suspect. Hodari makes it clear that a

8 partial restraint of freedom is insufficient to constitute a seizure by holding that “an attempted seizure

9 is not a seizure.” Id at 626.

10

Terry, Mendenhall and Hodari D. all involve police interactions with suspects prior to their

11 arrest where the ‘seizure’ issue involved a show of police authority. Cases which involve police use

12 of physical force which give rise to a seizure question also demonstrate that a Fourth Amendment

13 seizure requires a complete and intentional restraint of liberty. In Brower v. County of Inyo, supra, a

14 suspected car thief was killed when he crashed into a police roadblock after evading police on a

15 lengthy high speed chase. Because the roadblock was designed to cause the suspect vehicle to stop

16 by physical impact if voluntary compliance did not occur, and because Brower was stopped and

17 killed when he crashed into the roadblock, the Court held that a Fourth Amendment seizure did

18 occur. Brower was seized because he was stopped by police conduct specifically implemented for 19 the purpose of stopping him.4 Id,. 489 U.S. 593, 598-599. By comparison, the Court in Lewis v.

20 Sacramento, supra, found no seizure occurred when Lewis was killed in a motorcycle crash while

21 being pursued by police: “Because the officer did not intend to seize Lewis by striking him with his

22 vehicle, Lewis was not seized even though his freedom of movement was undoubtedly terminated.”

23 Id, 490 U.S. 833, 844.

24

25

26

27 be seized.
3 The Hodari Court also notes that a mere touching, however slight, can constitute an arrest of the person, and thus a

28 seizure, if the touching is for the purpose of arresting, which is not true of crowd dispersal efforts.
4 Deadly force permanently restrains one’s liberty. Justice Steven’s concurring opinion notes that in Tennessee v. Garner,

471 U.S. 1 (1985), the Court recognized that “there can be no question that apprehension by the use of deadly force is a

seizure subject to the reasonableness requirement of the Fourth Amendment.” 471 U.S. at 7

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1

In Fuller v. Vines, 36 F3d 65 (1994)5, the Ninth Circuit examined the definition of seizure

2 under the following facts: police officers investigating another matter walked past Fuller’s yard

3 where James Jr. was standing with his dog. Police claim the dog attacked them and for that reason

4 they shot and killed the dog. James Jr. became angry and was wrestled to the ground by friends to

5 prevent a confrontation. Nevertheless, an officer drew his weapon and pointed a gun at James Jr.’s

6 head, allegedly in self defense. In examining Fullers’ Fourth Amendment claims, the court finds that

7 while the killing of the dog was clearly a seizure of property, the claim that the police “seized”

8 James Jr. by pointing the gun at him, could not be recognized. The court reasoned that

9

There is no contention that he was arrested or that his liberty was restrained,

other than that he was not free to attack the officers. The officers contend that this

10

action with the gun was necessary in order to keep James Jr. from attacking them.

11

Although the Fullers argue that this was unnecessary, there is no contention that the

officers indicated James Jr. was not free to leave. In order to constitute a seizure of

12

the person, the action of the officers must be a restraint of liberty such that the person

reasonably believes he is not free to leave. United States v. Mendenhall, 446 U.S. 544,

13

554 (1980). It is not sufficient to constitute a seizure when the restraint is only that the

14

person is not free to attack the officers.

15 Id at 68.

16

In Schaefer v. Goch, 153 F.3d 793, (1998), police encountered a hostage situation and

17 unintentionally killed the suspect’s wife during his standoff with police. Her parents made a Fourth

18 Amendment excessive force claim, arguing that when police told their daughter to drop to her hands

19 and knees and she complied with this instruction, she was seized under Brower’s definition of “a

20 governmental termination of freedom of movement through means intentionally applied.” Brower,

21 supra, 489 U.S. at 597. However, the court held that because the daughter was temporarily

22 immobile, it did not follow that her freedom of movement was terminated. Because she could still

23 choose to move away from where the officer had directed her, and in fact was pulled away by her

24 husband, the court found an insufficient restraint on her liberty to constitute a seizure. (See, also,

25 Gause v. Philidelphia, 2001 U.S. Dist. LEXIS 17428 (2001), wherein Gause brought a claim for

26 excessive force under the Fourth Amendment when she was struck by a police officer during his

27

28
5 Overruled on other grounds in Robinson v. Solano County, 278 F.3d 1007, 1013 (2002): “ To the extent that Fuller

may be read as suggesting that the conduct of officers in pointing a gun at a suspect during an actual seizure can never be

excessive force, it is overruled.” (Emphasis added).

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1 efforts to arrest her son. Evidence showed that she was not arrested and had been instructed to leave

2 the area. Applying the Mendenhall test, the court found that a reasonable person in Gause’ position

3 would have known she was free to leave, and thus, not “seized.”)

4

As demonstrated by these cases, it is difficult to draw a general rule of what constitutes a

5 Fourth Amendment seizure because the analysis is so heavily fact specific. Yet some parameters

6 may be gleaned: in the context of arrests and investigatory stops, as demonstrated in Terry,

7 Mendenhall, Hodari and Brower, a successful, complete and purposeful restraint of liberty are the

8 common elements defining Fourth Amendment seizure; the officer’s lack of intent to arrest by a

9 particular means may support a finding of no seizure under Lewis; and where there is a use of force

10 without the intent to arrest, and the subject is free to leave, as in Fuller, Schaefer and Gause, there is

11 no seizure.

12

C. Cases Addressing Crowd Dispersal Use of Force Issues Show

Inconsistencies in Applying Fourth Amendment Precedent 13

14

One United States Courts of Appeal decision and several District Court decisions which

address the issue of police use of force during demonstrations show that courts have not analyzed this 15
issue in a consistent fashion. In Darrah v. Oak Park, 255 F.3d 301 (6th Cir. 2001), union protester 16
Darrah was struck in the face by Officer Bragg when she attempted to interfere with Bragg’s efforts

17 to arrest another protester by pulling at the officer’s ankle. In reviewing Darah’s Fourth Amendment

18 claim of excessive force, the court notes that the “Supreme Court has cautioned that not ‘all

19 constitutional claims relating to physically abusive government conduct must arise under either the

20 Fourth or Eighth Amendments.’ [Citations]” and “[t]he first question in this case, then, is whether

21 Officer Bragg’s conduct in striking plaintiff in the face while plaintiff was attempting to prevent
22 Bragg from executing an arrest constitutes a seizure.” Id. at 305-306. Thus, the Darrah court properly frames the question. Unfortunately, the court provides no further helpful analysis, because it
23 concludes that “regardless of which test is applied [‘objective reasonableness’ under the Fourth
24 Amendment or ‘shocks the conscience’ under the Fourteenth Amendment], Darrah is unable to create
25 a genuine issue of material fact with respect to her excessive force claim. Therefore, we need not and

26 do not decide whether Bragg’s conduct constitutes a seizure.”

27

28

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1

Defendants have found no other Court of Appeals opinion on point6, however, several District

2 Court opinions are available for review7. In Russ v. Jordan, 1992 U.S. Dist. LEXIS 19484, (1992),

3 Judge Patel held that a non-participant observer who was jabbed by a police baton at a demonstration
following the Rodney King verdict does not have a First Amendment claim. However, the court 4
applied the Fourth Amendment reasonableness standard to Russ’ excessive force claim without 5
undertaking any inquiry into whether a baton strike to an observer at a demonstration whom officers
6 had no intent to arrest and who was free to leave throughout the incident constituted a seizure under

7 the Fourth Amendment. Similarly, no such inquiry is undertaken in Lamb v. City of Decatur,947 F.

8 Supp. 1261 (1996), when the court, in reviewing the class action claim of protestors who were

9 pepper-sprayed at a civil rights demonstration, states that although there are “no cases specifically

10 stating that pepper spraying demonstrators violates the Fourth Amendment, there is enough of a
11 widespread Constitutional and judicial protection of First Amendment demonstrators to put the police on notice that unnecessary force is prohibited.” Id at 1264. And in Secot v. City of Sterling Heights,
12 985 F. Supp. 715 (1997), a union member protesting at a newspaper plant where strikers were
13 blocking the driveway was struck by a police baton during a confrontation with police, with no
14 indication that the claimant was arrested. Application of the Fourth Amendment standard to Secot’s

15 excessive force claim is assumed appropriate without any analysis of whether the baton strike

16 constituted a seizure

17

Finally, a recent District Court opinion from Oregon does undertake some analysis of whether

18 dispersal tactics constitute a seizure. In Marbet v. City of Portland, 2003 U.S. Dist. LEXIS 25685

19 (2003), demonstrators protesting against President Bush’ policies were blocking the entrance to a

20 Bush fundraiser. After allegedly directing the crowd to move from the entrance, police used pepper

21 spray and less lethal munitions to move the crowd. In reviewing the defendants’ Rule 12(b)(6)

22 motion to strike excessive force claims under the Fourth Amendment based on there being no

23 allegation of seizure, the court notes the Brower definition that a seizure occurs from “the

24 governmental termination of freedom of movement through means intentionally applied,” Brower,

25 supra, 489 U.S. at 596-597, and concludes that when police intentionally restrained the protestors’

26 freedom of movement by applying pepper spray and using less lethal ammunition and by physically

27

28 6 Two Ninth Circuit Court of Appeal cases involving excessive force claims by protesters clearly arise in the context of

arrests, and therefore do not examine whether dispersal efforts can equate to a seizure: Forrester v. San Diego, 25 F3d

804 (9th Cir. 1994) and Headwaters Forest Defense v. Humboldt, 240 F3d 1185 (9th Cir. 2001).

7 Defendants offer these District Court opinions for illustration only and not as controlling precedent.

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1 moving the protestors back from their peaceful positions, the effect was to control plaintiffs’

2 movements. The court concludes that police acts to move the crowd constitute a “seizure” under the

3 Fourth Amendment.

4

It is clear that not all courts acknowledge, as did the Darrah court, that the preliminary

5 question in excessive force claims is whether the force complained of was used in the context of a

6 search or seizure. The District Court opinions do not consider the fact that their claimants are not

7 being searched, arrested or subject to an investigatory stop – the usual prerequisites to claims under

8 the Fourth Amendment. The Russ and Secot decisions simply assume application of the Fourth

9 Amendment, and Lamb notes that police should know that excessive force is prohibited without

10 attempting to determine the appropriate constitutional standard for review of that particular claim of

11 excessive force. The court in Marbet fails to acknowledge that under Brower, a seizure requires a

12 termination of movement and does not include the “governmentally caused termination of an

13 individual’s freedom of movement (the innocent passerby)” and the “governmentally caused and

14 governmentally desired termination of an individual’s freedom of movement (the fleeing felon)”

15 because the individual is free to move away from police custody. Brower, supra, 489 U.S. at 596-

16 597. Cases like Fuller v. Vines, Schaefer v. Goch, and Hodari D., supra, demonstrate that, contrary

17 to the Marbet court’s conclusion, a partial restriction of an individual’s freedom of movement by

18 police does NOT constitute a seizure. And Marbet’s citation of Hodari D, supra, for the proposition

19 that seizure can mean touching or application of physical force even when ultimately unsuccessful is

20 correct only to the extent that such touching or application of force is made with the intent to arrest.

21 (See, Hodari D., supra, and section III A 2 and footnote 3 above). Hodari gives no guidance where

22 the application of force by police is to disperse rather than to arrest.

23

D. Crowd Dispersal Tactics Involve Neither Restraint of Liberty Nor Intent To Seize

And Therefore Do Not Come Within Any Definition Of Fourth Amendment Seizure 24

25

Defendants have found no case definitively stating that crowd dispersal tactics constitute a

26 seizure thereby requiring that claims of excessive force used to disperse a crowd be analyzed under

27 the Fourth Amendment. Defendants argue that a careful reading of Fourth Amendment precedent

28 weighs against finding that dispersal techniques constitute a seizure because the two main elements

defining seizure – termination of freedom of movement and intent to seize – are clearly not present in
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1 crowd dispersal situations. Police dispersal techniques are not intended to terminate an individual’s

2 freedom of movement. Plaintiffs do not allege that they reasonably believed they were not free to

3 leave. On the contrary, plaintiffs’ allegations demonstrate that they were free to move away from

4 police throughout the incident. There was certainly no ‘successful, complete and purposeful restraint

5 of liberty’ with regard to these plaintiffs. Crowd dispersal tactics do not fit within any recognized

6 definition of Fourth Amendment seizure. And, it is contrary to common understanding that being

7 dispersed is in fact being seized. In fact, police action to disperse a crowd is the conceptual opposite

8 of police action to arrest or seize an individual. Because police dispersal tactics do not constitute a

9 seizure, plaintiffs’ excessive force claims must be analyzed under the Fourteenth Amendment’s Due

10 Process Clause and their Fourth Amendment claims should be dismissed.

11

E. Policy Considerations Weigh Against Equating Crowd Dispersal Tactics With Fourth

Amendment Seizure 12

13

Under Graham v. Conner, “where a particular Amendment provides an explicit textual source

14 of constitutional protection against a particular sort of government behavior, that Amendment, not the

15 more generalized notion of substantive due process, must be the guide for analyzing these claims.”

16 Id at 395. Here, the plaintiffs argue that protection from police use of excessive force to disperse a

17 crowd finds its explicit textual source in the Fourth Amendment’s prohibition of unreasonable

18 seizures. However, Justice Scalia has cautioned that “[w]e do not think it desirable, even as a policy

19 matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest . . . .”

20 California v. Hodari D. supra, at 697-698. There is no question that including crowd dispersal tactics

21 within the meaning of seizure would significantly stretch the meaning of seizure, both as the term is

22 commonly understood, and as it has been understood in the context of the Fourth Amendment.

23

Plaintiffs have a more appropriate potential remedy under the Fourteenth Amendment.

24 Substantive due process protects against government power arbitrarily or oppressively exercised.

25 Daniels v. Williams, 474 U.S. 327, 331. “The Due Process Clause was intended to prevent

26 government officials “’from abusing [their] power, or employing it as an instrument of oppression.’”

27 [Citations].” Sacramento v. Lewis, supra, 523 U.S. at 846. As the Fourteenth Amendment Due

28 Process Clause provides for constitutional review of police activities which are outside the scope of

12

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1 searches and seizures, there is no reason to stretch the Fourth Amendment beyond the plain meaning

2 of its language.

3

IV. CONCLUSION

4

For the reasons set forth above, defendants respectfully submit that its motion to dismiss

5 should be granted without leave to amend.

6

7

8 Dated: January 28, 2005

BERTRAND, FOX & ELLIOT

9

10

By:___________________________________________

Gregory M. Fox

11

Attorneys for Defendants

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1 MICHAEL J. HADDAD (State Bar No. 189114) JULIA SHERWIN (State Bar No. 189268)
2 HADDAD & SHERWIN 505 Seventeenth Street
3 Oakland, CA 94612 Telephone: (510) 452-5500
4 Fax: (510) 452-5510

5 Attorneys for Plaintiffs

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9 SRI LOUISE COLES, RON SMITH, JENNIFER HANSEN, DAVE TELLES, SCOTT BOHNING,
10 and LINDSAY PARKINSON, individually,

11

Plaintiffs,

12 vs.

13 CITY OF OAKLAND, et al.,

14

Defendants.

15

16

17

18

) No. C 03-2961 TEH (JL)

)

) Hon. Thelton E. Henderson

)

) COLES PLAINTIFFS’ NOTICE

) AND MOTION FOR PARTIAL

) SUMMARY JUDGMENT;

) ) )

MEMORANDUM OF POINTS AND AUTHORITIES

)

) ) Hearing Date: December 12, 2005 ) Time: 10:00 a.m. ) Hon: Thelton E. Henderson

)

)

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No.: C03-2961 TEH: COLES PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

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1

NOTICE OF MOTION AND MOTION

2 PLEASE TAKE NOTICE that on December 12, 2005, at 10:00 a.m., Plaintiffs Sri Louise
3 Coles, Jennifer Hansen, Dave Telles, and Scott Bohning, by and through their attorneys, will move
4 this Court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, for partial summary
5
6 judgment pursuant to FRCivP 56. Specifically, these Plaintiffs will seek partial summary judgment

7 as follows:

8

1. A finding, as a matter of law, that the Oakland police used excessive force against

each of them when they were shot by “less-lethal” projectiles at the Port of Oakland

9

on April 7, 2003;

10

2. A finding of liability against Defendants City of Oakland, Chief Word, DC Haw,

and Captain Yee as to these Plaintiffs’ claims under the Fourth Amendment and

11

Cal. Civil Code § 52.1.

12

This motion is based on the Memorandum of Points and Authorities that follows, the

13 declarations of Michael J. Haddad and Julia Sherwin filed in support of the Motion, all documents
14 and records filed in the case, and on such further written and/or oral argument and evidence as may
15 be submitted.
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No.: C03-2961 TEH: COLES PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

TABLE OF CONTENTS

Page

3

TABLE OF AUTHORITIES ----------------------------------------------------------------------------------iii 4

5 I.

INTRODUCTION---------------------------------------------------------------------------------------1

6 II. STATEMENT OF FACTS-----------------------------------------------------------------------------1

7

Physical Layout of the Port of Oakland --------------------------------------------------------------1

8

“Less-Lethal” Munitions -------------------------------------------------------------------------------2

9

Plaintiffs --------------------------------------------------------------------------------------------------3

10 Defendants -----------------------------------------------------------------------------------------------3
11

Dispersal Orders -----------------------------------------------------------------------------------------5 12

13

Background ----------------------------------------------------------------------------------------------5

14

Sri Louise Coles -----------------------------------------------------------------------------------------8

15

Ron Smith ------------------------------------------------------------------------------------------------8

16

Jennifer Hansen ------------------------------------------------------------------------------------------9

17 Scott Bohning ------------------------------------------------------------------------------------------10
18 Plaintiffs Were Seized --------------------------------------------------------------------------------10
19
Plaintiffs Were Intentionally Struck by Police Projectiles ---------------------------------------12 20

21

No Warning ---------------------------------------------------------------------------------------------13

22

No Justification to Shoot these Plaintiffs -----------------------------------------------------------14

23 III. 24 IV. 25 26 27

STANDARD OF REVIEW --------------------------------------------------------------------------16
ARGUMENT ------------------------------------------------------------------------------------------17
A. By Intentionally Shooting with Less-Lethal Projectiles, Without Warning, Non-Threatening, Dispersing Plaintiffs, Defendants Violated Plaintiffs’ Fourth Amendment Rights to Be Free from Excessive Force------------------------------------17

28

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Case3:03-cv-02961 Document122 Filed11/03/05 Page4 of 31

1

B. Defendants Word, Haw, and Yee Are Liable for these Fourth Amendment

Violations as the Supervisors Who Ordered these Uses of Force-----------------------21 2

3

C. Defendant City of Oakland Is Liable for the Violations of Rights Ordered or Directed by its Policy-Makers------------------------------------------------------------23

4 D. Defendants Word, Haw, Yee, and the City of Oakland Are Liable under

5

California Civil Code § 52.1 for their Interference, by Threats, Intimidation,

or Coercion, with Plaintiffs’ Constitutional Rights --------------------------------------23 6

7 CONCLUSION AND RELIEF REQUESTED -------------------------------------------------------------25

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 Cases

Page

3 Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir. 1994), cert. den., 513 U.S. 1083 (1995)-------------------------------------------------------------------------------17
4

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986) -----------------------------------------------16-17 5

6

Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450, 81 Cal. Rptr. 2d 165 (Cal. Ct. App. 1998)--------------------------------------------------------------------------------------------25

7 Boyd v. Benton Co., 374 F.3d 773 (9th Cir. 2004)----------------------------------------------------------19

8 Brewer v. City of Napa, 210 F.3d 1093, 1097-1098 (9th Cir. 2000)--------------------------------------19

9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) --------------------------------------------------------------17

10 Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001)--------------------------------------------18-20

11 Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003)----------------------------------15, 18, 21

12 Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002), 13 cert. denied, 537 U.S. 1106 (2003) ---------------------------------------------------------------------------23

14 Graham v. Connor, 490 U.S. 386 (1989)-----------------------------------------------------------------17-20
15 Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), cert. den. 522 U.S. 1115 (1998)-------------------19 16 Headwaters Forest Defense v. County of Humboldt, (Headwaters II) 17 276 F.3d 1125 (9th Cir. 2002)------------------------------------------------------------------------------18-19

18 Jones v. Kmart Corp., 17 Cal.4th 329 (1998)----------------------------------------------------------------23 19 Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) ----------------------------------------------22

20 Michael J. v. Los Angeles County Dept. of Adoptions, 201 Cal. App. 3d 859, 247 Cal. Rptr. 504 (Cal. Ct. App. 1988) ---------------------------------------------------------------------25
21 Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001)--------------------------------------------------19
22 Motley v. Parks, 383 F.3d 1058 (9th Cir. 2004) -------------------------------------------------------------22
23 Perez v. City of Huntington Park, 7 Cal. App. 4th 817, 9 Cal. Rptr. 2d 258
24 (Cal. Ct. App. 1992) --------------------------------------------------------------------------------------------25
25 Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1991) (en banc) ----------------------------22
26 Reed v. Hoy, 891 F.2d 1421 (9th Cir. 1989), cert. denied, 501 U.S. 1250 (1991) -----------------18-19
27 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc) -------------------------------------18, 20

28 Tennessee v. Garner, 471 U.S. 1 (1985)----------------------------------------------------------------------19

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1 Ting v. U.S., 927 F.2d 1504 (9th Cir. 1991) -----------------------------------------------------------------18
2 Toscano v. Prof'l Golfers Ass'n, 258 F.3d 978, 982 (9th Cir. 2001)--------------------------------------16
3 Venegas v. County of L. A., 32 Cal. 4th 820, 827; 11 Cal. Rptr. 3d 692 (2004) ----------------------24
4 Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276 (9th Cir. 2001) --------------------24
5
6 Statutes, Court Rules, and other Authorities
7 U.S. Const., Fourth Am.-----------------------------------------------------------------------------------passim
8 FRCivP 56 -------------------------------------------------------------------------------------------------- 16-17
9 Ninth Cir. Model Civil Jury Instr. 11.12 --------------------------------------------------------------------23
10 Cal. Civil Code §52.1---------------------------------------------------------------------------------------23-25
11 Cal. Govt. Code § 815.2 -----------------------------------------------------------------------------------24-25
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 I. INTRODUCTION

2

Plaintiffs Sri Louise Coles, Ron Smith, Jennifer Hansen, and Scott Bohning each went to the

3 Port of Oakland on April 7, 2003, to peacefully attend an anti-war demonstration. Instead, they
4 were struck by “less-lethal” projectiles fired at them by the Oakland Police. These Plaintiffs now
5 move for partial summary judgment against Defendants. Plaintiffs seek a finding as a matter of law
6
7 that they were subjected to excessive force when Defendants shot them with such projectiles, and a

8 finding of liability against Defendants Chief of Police Richard Word, Deputy Chief of Police

9 Patrick Haw, Captain Rod Yee, and the City of Oakland, for their direct orders and involvement in

10 the decision to shoot “less-lethal” projectiles into a crowd of people exercising their First
11 Amendment rights.
12 Although the incident at the Port of Oakland on April 7, 2003, involved hundreds of
13 demonstrators, media, police, and others, and involved hundreds of uses of force by Oakland police
14
15 at many locations throughout the Port that morning, this motion is limited to four peaceful Plaintiffs
16 who were hit by police projectiles fired at them at essentially two locations.1 Moreover, this motion

17 focuses on these discrete uses of force under the Fourth Amendment and California Civil Code §

18 52.1 only. Plaintiffs’ remaining claims are not at issue here.
19 II. STATEMENT OF FACTS
20 Physical Layout of the Port of Oakland. A map of the Port is attached as Exhibit A.2
21 22 The shipping company gates are designated on the map by numbers: 2 (East APL gate), 3 (West
23 APL gate), 4 (East SSA gate) and 5 (West SSA gate). Point # 5 is also the intersection of Middle

24 Harbor Road (MHR) and Maritime Street. Immediately North of that intersection, Maritime Street

25

26 1 Other police conduct and violations of rights experienced by these Plaintiffs, such as interference with free
27 speech, motorcycle strikes, or baton jabs at other locations, will not be addressed in this motion.
2 All exhibits referenced herein are attached to the Declaration of Michael J. Haddad in support of this
28 motion, with the exception of Exhibit U, a videotape attached to the Declaration of Julia Sherwin.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page8 of 31

1 is enclosed on both sides by high fences, “a very contained area,” as described by Oakland Deputy

2 Police Chief Patrick Haw, which leads up to point # 6, Seventh Street. Ex. B, Haw, 187.

3

“Less-Lethal” Munitions. The two types of “less-lethal” projectiles were

4 “deployed,” 3 i.e., fired, at the Port of Oakland on April 7, 2003, are “12-gauge, drag-stabilized
5 bean bag rounds” and “37 mm wooden dowels.” Ex. C, photos. The drag-stabilized bean bags are
6

7 actually lead birdshot, wrapped in a cloth bag, and fired from a normal 12-gauge shotgun. Ex. D,

8 Tolleson, 253, 258-259. The “bean bags” travel at 280 feet per second according to their

9 manufacturer’s specifications, or 191 miles per hour.4 Ex. E. A “less-lethal” bean bag can kill a

10 person if it strikes a person’s head, neck, or other vital areas. Ex. D, Tolleson, 17-18, 53; Ex. F,
11 Tracey, 45-46. Chief Word agrees it would be a use of deadly force to intentionally deploy a bean
12 bag at a person’s head. Ex. G, Word, 151.
13 The 37 mm wooden dowels are fired from a large 37 mm gun, and come out five at a time.
14
15 Ex. E. Like the bean bag, the wooden dowels travel at 191 miles per hour. Id. However, wooden

16 dowels are supposed to be “skip-fired” off the ground three meters in front of the target. Ex. D,

17 Tolleson, 262-263, 364-365. Once the wooden dowels hit the ground, it is impossible to control

18 their movement. Id. They can splinter and bounce any which way. Id. On April 7, 2003, the 37
19 mm wooden dowels were skip-fired into the crowd generally, rather than in front of any particular
20 person, in order to disperse the crowd. Ex. D, Tolleson, 361. Officer Steinberger, an officer who
21 22 deployed the 37 mm wooden dowels during the incident, knew he could only target a person’s head
23 if deadly force was justified. Ex. H, Steinberger, 85-88. Officer Steinberger also knew that those

24

25
26 3 To “deploy” a “Less-Lethal” projectile means to fire a round from a gun. Ex. F, Captain Tracey, 193.
4 Sgt. Gary Tolleson, the senior munitions instructor and one of the most knowledgeable OPD officers
27 concerning this type of munition, has incorrectly trained OPD officers that 280 feet per second is equal to 85
miles per hour – like a “hardball” thrown by a college pitcher. Ex. D, Tolleson, 19, 55, 210-211, 257.
28 Actually, 280 feet per second is equal to 191miles per hour.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page9 of 31

1 wooden dowels are prone to skip higher than intended, and have the potential to strike a person in

2 the head, even if not aimed there. Id.

3

Stinger grenades 5 were also thrown by hand at various locations. These frightening, yet

4 relatively harmless, munitions are not at issue in this motion.
5 Plaintiffs. Plaintiffs Sri Louise Coles, Scott Bohning, and Jennifer Hansen, each went to the
6

7 Port of Oakland on that morning to participate peacefully and lawfully in a demonstration against

8 the Iraq War and shipping companies’ war profiteering. Ex. I, Coles, 60-64; Ex. J, Bohning, 28-29;

9 Ex. K, Hansen, 16, 20-21. None of them intended to engage in any civil disobedience or violate the

10 law. Id. Plaintiff Ron Smith went to the demonstration as an independent journalist to document
11 the event. Ex. L, Smith, 36-40, 44-45.
12 Defendants inappropriately applied deadly force to Sri Louise Coles (shooting her in the
13 face), Ron Smith (shooting him in the hand that held his video camera to his face), and Scott
14
15 Bohning (shooting him in the face). Defendants further applied excessive force to Scott Bohning

16 (shooting him in the back and his right hand at the same time he was shot in the face) and Jennifer

17 Hansen (shooting her in the back of her right upper arm). All of these Plaintiffs were shot as they

18 were “dispersing,” as will be more fully described below.
19 Defendants. The decision to fire “less-lethal” projectiles into the crowd was made at the
20 highest levels of the Oakland Police Department (OPD). Deputy Chief (“DC”) Patrick Haw and
21 22 Captain Rod Yee were both listed by the OPD as “Incident Commander” for this incident. Ex. N.
23 Both DC Haw and Captain Yee were present at the Port during all uses of “less-lethal” munitions.

24 Captain Yee recommended that “less-lethal” projectiles be fired into the crowd, and DC Haw made

25 the final decision to order their “deployment.” Ex. O, Yee, 114-116; Ex. B, Haw, 152-155; Ex. G,
26
27 5 The “Stinger Grenades” were thrown above the crowd, and with a loud explosion from a “firecracker”
inside, would emit smoke and small rubber pellets. Ex. F, Tracey, 233-234; Ex. D, Tolleson, 276-279.
28 Stinger grenades cannot cause the types of injuries sustained by Plaintiffs herein. Id.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page10 of 31

1 Word, 89-90. Police Chief Richard Word authorized the use of “less-lethal” munitions for crowd

2 dispersal in advance of this event, and personally delegated his authority to order their deployment

3 at the event to the Incident Commanders. Ex. G, Word, 24-25, 32. Chief Word was the police

4 department’s “highest policy-making officer,” and the person “ultimately responsible for all
5 policies, procedures, and training” of the OPD. Id. at 25.
6

7

The decision to deploy, or fire, “less-lethal” projectiles at the crowd was passed down

8 through lieutenants to Sergeants Edward Tracey 6 and Gary Tolleson, the leaders of the “Red” and

9 “Blue” “Tango Teams,” respectively. Ex. F, Tracey, 202-203. The “Tango Teams” consisted of 7-

10 8 officers who actually fired the “Less-Lethal” projectiles at people in the crowd. The “Red” team
11 included Officers Del Rosario, Gutierrez, Gonzalez, and Holmgren, who fired drag-stabilized bean
12 bags into the crowd in the vicinity of point #4. Ex. F, Tracey, 167. One or more of those four
13 “Red” team shooters fired the beanbags that struck Plaintiffs Sri Louise Coles and Ron Smith, on
14
15 MHR just west of point #4 (East SSA gate). The “Blue” team included Officers Worden, Uu,

16 Steinberger, Doolittle, Saunders, Sgt. Campbell, and Sgt. Tolleson, who fired either drag-stabilized

17 bean bags or 37 mm wood projectiles into the crowd, striking Plaintiffs Scott Bohning and Jennifer

18 Hansen on Maritime Street, just North of point #5. Ex. D, Tolleson, 297-299, 303-305.
19 The Red and Blue teams never fired projectiles at the same location where the other team
20 fired projectiles. At point #4, only the Red team only fired projectiles, and only fired drag-
21 22 stabilized bean bags. Ex. F, Tracey, 206-211. At point #5 and north on Maritime Street, only the
23 Blue team fired projectiles; however in that area, the Blue team fired both bean bags and wooden

24 dowels. Ex. D, Tolleson, 303-305; Ex. F, Tracey, 210-211.

25

Although individual officers pulled the triggers, Chief Word explained, “To my knowledge,

26 no officer made an individual decision to deploy force without first being given the okay. They’re 27

28 6 Sgt. Tracey is now an acting Captain.

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1 directed to do so by a command officer.” Ex. G, Word, 153. Ultimately, all officers involved were

2 exonerated from use of force complaints due to the department’s conclusion that all “less-lethal”
3 uses of force on April 7, 2003, were ordered by command officers and “consistent with department 4
policy and training.” Ex. P, Internal Affairs memos. 5
Dispersal Orders. Captain Yee gave all the dispersal orders to the crowd at various 6 7 locations at the Port of Oakland on April 7, 2003. Ex. O, Yee, 120-123. Captain Yee gave all of
8 the dispersal orders from a printed card. 7 Id. The police never told the crowd where to disperse to

9 or how far to disperse in the Port of Oakland which encompasses several square miles. Id. The

10 Defendants admit that none of the dispersal orders given at the Port that day “specifically
11 identif[ied] the boundries of the area police were ordering people to leave,” nor did they “specify
12 how far people were expected to disperse.” Ex. Q, Admissions nos. 22 and 23.
13 Background. Given the focus of this motion, it is not necessary to recount in detail the full
14
15 chronology of events. However, it is helpful to understand the physical layout of the Port and some

16 of the major events that happened before these Plaintiffs were shot.

17

At point #3, the West APL gate, at a little after 7:00 am, Captain Yee read the dispersal

18 order twice to a crowd of approximately 250-350 people. 8 Ex. O, Yee, 110-125; Ex. B, Haw, 99-
19 101. That gate was cleared, without the use of munitions, by a police line moving toward the
20 crowd. Ex. B, Haw, 101. The crowd moved away from that gate, and into MHR. Ex. B, Haw, 129.
21

22

23

7 That card from which Captain Yee read all of the dispersal orders states: Dispersal Order. “I am
24 (Rank/Name) of the Oakland Police Department. I hereby declare this to be an unlawful assembly and, in

the name of the People of the State of California command all those assembled at (give specific location) to
25 immediately disperse. If you do not do so, you will be arrested.” Ex. R. At the West APL gate, video

26

footage exchanged between the parties shows that Captain Yee ordered the crowd to disperse from that specific gate, “1579 Middle Harbor Road.” Captain Yee does not know whether he gave the “specific

27 location” every time he read the dispersal order Ex. O, Yee, 120.
8 Previously, two attempts were made to give a dispersal order from a helicopter, but everyone agrees that

28 order was not audible.

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1

Next, the police line stopped across Middle Harbor Road. Id. The police intended to

2 disperse the crowd west on MHR. Id. Even though the crowd had already dispersed from the West

3 APL gate, and although no additional dispersal order was given, the police expected the crowd to

4 keep moving west, as Deputy Chief Haw explained:

5

Q: Now, at any time during these dispersal orders, were demonstrators told

6

where to go?

7

A: No. They were told to leave. I mean, the options were apparent. There was

one option. They had to go west. 8

Q: Okay. They had to go west? 9

A: It was apparent, because we were to the east of them and we weren’t – they

10

weren’t going to disperse through us.

11

Q: Okay. So you wanted them to go west?

12

A: That was our intention, yes sir.

13

Q: And it was obvious to you but it wasn’t directly communicated to them; is

that a fair statement? 14

A: That’s a fair statement, yes. 15

Ex. B, Haw, 138. 16

17

At approximately 7:38 am, the police used “less lethal” force against the crowd assembled in

18 MHR west of point #3, including stinger grenades and drag stabilized bean bags. Ex. O, Yee, 104-

19 105, 134-135. According to Captain Yee, “Everybody in MHR at that point was in violation of the

20 dispersal order,” and subject to being shot with bean bags. Id. at 135.
21 On April 7, 2003, the police generally drove the crowd in a westerly direction on Middle
22 Harbor Road from point #3 (the West APL gate), then following that road after it bends, north
23 through points #4 and #5, and continuing north on Maritime Street to point #6. This was not
24
25 accomplished in one continuous movement, for the crowd, or new and existing members of the

26 crowd, would leave one gate and appear in the driveway of the next gate only to be told again to

27 “disperse” – presumably from the new gate. 28

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Case3:03-cv-02961 Document122 Filed11/03/05 Page13 of 31

1

At point # 4, several minutes after police fired bean bags near the West APL gate, Captain

2 Yee again read dispersal orders to a crowd of 200-250 people demonstrating in front of the East
3 SSA gate. Ex. O, Yee, 150-155, 162. Captain Yee believes that at this gate, he also told the crowd 4
to “move west.” Ex. O, Yee, 159-160. Unfortunately, Captain Yee got mixed up in his directions. 5
At this gate, “west” was the direction that would take one into the gate, not up Maritime Street as 6 7 Captain Yee apparently intended. Ex. A, Map. Moreover, in his own mind, Captain Yee says he
8 thought that compliance with his dispersal order required the crowd to go all the way to the West

9 Oakland BART Station, however, he never so instructed the crowd. Id. Without telling anyone,

10 Captain Yee expected the crowd to disperse, on foot, 1.48 miles to the BART Station. Ex. S,
11 Mapquest directions/map.
12 In response to this vague and confusing dispersal order, some members of the crowd moved
13 away from that gate and went into MHR. Ex. O, Yee, 163. Plaintiff Sri Louise Coles was one of
14
15 those people who attempted to heed the dispersal order, left the East SSA gate, and moved into the

16 street. Ex. I, Coles, 100-102. At approximately 8:02 am, Red team leader Sgt. Tracey was given

17 the order to deploy stinger grenades and bean bags against members of the crowd at the East SSA
18 gate and in MHR in front of that gate. Ex. F, Tracey, 201-203. The police line moved north on
19 MHR, firing beanbags from several locations as they went. Ex. F, Tracey, 227-230.
20 Some police officers have claimed that at various times and locations, some members of the
21 22 crowd threw rocks or other things toward the police. Although Sgt. Tracey was at the front of the
23 police line, he did not witness anything being thrown toward the police in the area of point #4. Ex.

24 F, Tracey, 200-201. Neither did Captain Yee. Ex. O, 164. Neither did DC Haw. Ex. B, Haw, 260-

25 261. Lt. Dave Kozicki, who led the motorcycle contingent of the police skirmish line and was
26 present at point #4, never saw anything thrown toward the police until the police got to point #6, 27
Seventh Street. Ex. T, Kozicki, 158, 253. 28

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Case3:03-cv-02961 Document122 Filed11/03/05 Page14 of 31

1

Sri Louise Coles. Video shows that as the line of police motorcycles and officers on foot

2 advanced down MHR, police began throwing more stinger grenades over the crowd. The grenades
3 exploded with loud bangs. Plaintiff Sri Louise Coles and her friend Susan Maxwell took cover in 4
front of a red conversion van parked along the road. A police officer made them leave, but just as 5
they stepped out, police motorcycles drove up fast, revving their engines, and one motorcycle struck 6 7 Ms. Coles.9 Ms. Coles and her friend took cover in front of a blue parked car. This time, an officer
8 came up and forcefully pushed Ms. Coles from her position of safety, throwing her directly into the

9 path of the oncoming police line. Ms. Coles immediately ran northeast, away from the approaching

10 police line and towards the eastern edge of MHR. She was dispersing. As she neared the gravel
11 shoulder, she turned to her right to say something to a woman holding a camera. Then, as she was
12 in the process of turning again to the right to continue north, she was shot in the face. The bean bag
13 hit her on the left side of her face – the side that was exposed to the police line, mid-turn. Ex. U,
14 15 VIDEO10; Ex. V, Coles Interrog. no. 1; Ex. I, Coles, 105-119. This was also witnessed by Miles

16 Montalbano, who filmed video of Ms. Coles just before she was struck, and who was shot by the

17 same officer who shot Ms. Coles. Ex. W, Montalbano, 157-181.

18

DC Haw can also be seen in the video of Ms. Coles, standing just behind the police skirmish

19 line. He has red hair and he was not wearing any head protection. Ex. U, VIDEO; Ex. Y, Sgt.
20 Wallace, 83-84; Captain Yee was also there with DC Haw. Ex. O,Yee, 150-158. Ms. Coles was
21
22 shot right in front of DC Haw and Captain Yee.

23

Ron Smith. Independent journalist Ron Smith brought both a still camera and a video

24 camera to the Port. Ex. L, Smith, 79. Mr. Smith wore multiple press passes prominently displayed

25 from a lanyard around his neck. Ex. L, Smith, 40, 44-45, 98-99; Ex. M, press passes. 26

27 9 Defendants admit this motorcycle hit in their Answer. Ex. X, Third Am. Complaint and Answer, ¶ 19 (a). 28 10 This exhibit is attached to the Declaration of Julia Sherwin in support of this motion.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page15 of 31

1

Within seconds of when Ms. Coles was shot in the face, Plaintiff Ron Smith was shot in his

2 left hand as he was using that hand to hold his video camera to his face. Mr. Smith’s video of that
3 moment confirms that in the seconds before he was shot, he was backing away from the police line, 4
dispersing, as he was filming the police. He was at least at least four to six car lengths in front of 5
the police line when he was shot. 11 Ex. U, VIDEO; Ex. L, Smith, 96-102. Mr. Smith’s video 6 7 camera actually captured the projectile that struck him. The slow motion version shows a light
8 colored trail as the bean bag went from an officer in the police line to Mr. Smith’s hand holding the

9 lens of the video camera. Ex. U, VIDEO.

10

Sgt. Tracey’s Red team eventually stopped, and was relieved by Sgt. Tolleson’s Blue team

11 at point #5. Ex. D, Tolleson, 303-305. The police set up a new skirmish line at the intersection of
12 MHR and Maritime Street, then began advancing on the crowd in Maritime Street, under the
13
supervision of DC Haw and Captain Yee. Ex. D, Tolleson, 303-305, 319-320, 325. The crowd was 14

15 approximately 100 feet north of the police, with many in the crowd walking away from the police.

16 Ex. D, Tolleson, 333-334. The police threw stinger grenades, and opened fire with bean bags – and

17 for the first time – wooden dowels. Id. The police shot these projectiles at several locations on

18 Maritime Street as they followed the crowd, at a brisk pace, north towards Seventh Street. Ex. D,
19 Tolleson, 303-304, 312, 340-343.
20 Jennifer Hansen. Plaintiff Jennifer Hansen had been at point #3, the West APL gate, when
21 22 the police first cleared that gate. Ms. Hansen left the West APL gate as she understood the police
23 order and went to the north side of MHR. She dispersed west, then north as MHR turned north, all

24 the while with the line of police at her back, intermittently firing bean bags and throwing stinger

25 grenades into the crowd. Ms. Hansen made it to point #5, where she stood and rested for 5-10 26 minutes, trying to figure out what to do. The police line re-formed at point #5 (this time, with Sgt. 27

28 11 The same red conversion van is apparent in video of both Ms. Coles and Mr. Smith. Ex. U, VIDEO.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page16 of 31

1 Tolleson’s Blue team supplying the “Less-Lethal” force). Ms. Hansen did not hear any police

2 announcement at that location. She started walking north up Maritime Street, and the police line
3 started following the crowd again. Then the police started shooting again. Ms. Hansen was struck 4
by a police projectile in the back of her right arm as she was dispersing away from the police, going 5
north on Maritime Street, with tall fences enclosing each side of that street. She estimates that she 6 7 was approximately one-half block north of point #5 when she was shot. Ex. Z, Hansen
8 Interrogatory Response No. 1; Ex. K, Hansen, 19-69.

9

Scott Bohning. Plaintiff Scott Bohning arrived late at the West Oakland BART Station. A

10 car pool dropped him off at point #6, Seventh and Maritime Streets, and he began walking south on
11 Maritime to where he thought the demonstration was taking place. From approximately 1 ½ blocks
12 before point #5, he could see some people, including police, in the distance. At about one block
13 before point #5, he heard a loud bang, and saw people moving around at point #5. Mr. Bohning
14
15 continued walking no more than 20 yards when he encountered many people moving north, away

16 from point #5. He paused for several seconds. He still did not know what was happening. Then,

17 he turned around, and began walking back towards point #6 on the far right side of the enclosed
18 roadway with the rest of the crowd. The police line of motorcycles and officers was behind him, as
19 he was dispersing north on Maritime Street. About halfway between points #5 and #6, Mr. Bohning
20 “heard a bang and turned around to see where the police were an instant before I was hit in several
21 22 places on my body and face.” Ex. AA, Bohning Interrog answer no. 1; Ex. J, Bohning, 32-65. Mr.
23 Bohning was shot once on his nose, three times on his back, and once on his right hand, all within

24 about a second. Ex. J, Bohning, 60-61, 78. Mr. Bohning was walking north, about 40-50 feet in

25 front of the police line when he was shot. Ex. J, Bohning, 63.

26

Plaintiffs Were Seized. As described above, the police terminated Plaintiffs’ freedom of

27 movement through means intentionally applied. Plaintiffs Coles, Smith, Hansen, and Bohning were
28

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1 each dispersing in the direction the police were forcing them to go before they were shot. Plaintiff

2 Sri Louise Coles was actually physically thrown out into the roadway and into the line of fire by a
3 police officer just before she was shot. Ex. U, VIDEO; Ex. V, Coles interrog answer no. 1; Ex. I, 4
Coles, 105-119. Plaintiff Ron Smith was backing away from the police line, the only way he could 5
go, as that line advanced and fired at him. Plaintiffs Jennifer Hansen and Scott Bohning were 6 7 forced to go north on Maritime Street, “a very contained area” (Ex. B, Haw, p. 187) fenced in on
8 both sides, with the police spread across the roadway to their south, following them, and shooting

9 projectiles at their backs. Even after Mr. Bohning was hit with five projectiles, he tried to stop

10 twice to receive medical treatment from a medic, but was forced to keep moving north by the line of
11 police firing more projectiles. Ex. J, Bohning, 73-76.
12 Additionally, each of these Plaintiffs has signed similarly worded interrogatory answers
13 explaining why they were not “free to leave” the Port as Defendants had requested them to admit.
14
15 A representative interrogatory answer is as follows:

16

I was not always “free to leave” the Port, because I was briefly stopped from

leaving the Port by a police projectile striking me in my face after a police officer

17

pulled me for a second time from a position of safety, and as I was dispersing away

from the police line. Also, I was not “free to leave” in whatever direction, speed, or

18

manner that I might have chosen, because the police were forcing me and others to

19

leave before I was ready to leave, and forcing us to move in a single direction, in

great haste, while shooting at us with dangerous projectiles and threatening us with

20

motorcycles. The Oakland police took away my freedom of movement by taking

action to forcefully funnel me and others down a long narrow path through the Port

21

of Oakland. I was forced to submit to police authority by following the only route

22

left open to me by police after I was physically pulled by an officer from a position of safety behind a parked car and thrown out into the line of fire.

23 Ex. BB, Coles Interrog answer no. 20 (RFA No. 7). See also, Ex. BB, Smith Interrog answer no. 20
24 (RFA No. 7), Hansen Interrog answer no. 18 (RFA No. 7), and Bohning Interrog answer no. 18
25

26 (RFA No. 7).

27

From Captain Yee’s point of view, the skirmish line, motorcycles, and officers with helmets,

28 not to mention the “less-lethal” gunfire, were enough to make a reasonable person disperse all the

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Case3:03-cv-02961 Document122 Filed11/03/05 Page18 of 31

1 way up MHR, Maritime Street, and Seventh Street, from the East SSA gate to the West Oakland

2 BART Station – a distance of almost 1 ½ miles. Ex. O, Yee, 160.

3

As DC Haw summed it up, “the options were apparent. There was one option. They had to

4 go west. … It was apparent, because we were to the east of them and we weren’t – they weren’t
5 going to disperse through us.” Ex. B, Haw, 138.
6

7

Plaintiffs Were Intentionally Struck by Police Projectiles. Defendants have admitted the

8 following in their Answer to the Coles Third Amended Complaint:

9

“An officer shot a projectile at Plaintiff Ron Smith, striking him in his left hand as he

was using that hand to hold a camera to his face to film this demonstration and the

10

Oakland police response to it;”

11

“An officer shot a projectile at Plaintiff Jennifer Hansen, striking her in the back of

her right, upper arm;” 12

“Plaintiff Scott Bohning was struck multiple times by projectiles fired by the police,

13

including on his nose, hand, and three times on his back.”

14 Ex. X, Third Am. Complaint and Answer, ¶ 19(c), (d), and (f). Additionally, the trail of the

15 projectile from the police to Ron Smith’s video camera is clearly visible on the slow motion version
16 of his video taken at that time. Ex. U, VIDEO.
17 Photographs of each Plaintiff’s impact injuries are at Exhibit CC.
18 Plaintiff Sri Louise Coles was struck in the face by a bean bag. At point #4, where she was
19
20 shot, the Red team deployed bean bags and not wooden dowels. Ex. F, Tracey, 206-211. Ms. Coles

21 felt a strong impact to the left side of her face, from a projectile that came from the left – the

22 direction of the police. Ex. I, Coles, 120-122. From the video, it is apparent that police were
23 shooting beanbags in Ms. Coles’ direction at that moment. In fact, the officer who shot her can be
24 seen pointing a 12 gauge shotgun in her direction. Ex. U, VIDEO. Videographer Miles
25 Montalbano witnessed the officer aim and shoot Ms. Coles just before that same officer shot Mr.
26 27 Montalbano. Ex. W, Montalbano, 157-181.

28

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1

Later that day, Chief Word was on KTVU News when he reviewed a picture of Ms. Coles’

2 wound. Chief Word then admitted: “We’ve had some of our, uh, weapons folks look at this and

3 they say this is consistent with a bean bag strike, the bean bag round.” Ex. U, VIDEO. Senior
4 munitions instructor Sgt. Tolleson also has reviewed photos of Ms. Coles’ wound, and he believes
5 Ms. Coles was struck by a bean bag. Ex. D, Tolleson, 52-53. Defendants have no evidence that she
6 7 was struck by anything else.12

8

Defendants admit that “each drag stabilized ‘bean bag’ projectile” and “each 37 mm wooden

9 baton round” “fired by Oakland police officers at the Port of Oakland on April 7, 2003 was

10 intentionally deployed.” Ex. Q, Admissions nos. 18 and 19.

11 Although Defendants clearly shot these Plaintiffs, Defendants claim that they are unable to
12 identify any specific officer who shot Plaintiffs Coles, Smith, Hansen, or Bohning with less-lethal
13
projectiles. Ex. FF, Defs’ Interrog. Answer nos. 4, 5, 6, 7. 14

15

No Warning. Defendants admit that “Oakland police did not give any warning at the Port

16 of Oakland on April 7, 2003 that those individuals deemed by police to be in violation of a dispersal

17 order could be subject to ‘less lethal’ force by police, including being struck by drag-stabilized

18 “bean bag” projectiles fired from 12 gauge shotguns.” Ex. Q, Admission no. 20. Similarly, 19

20

12 While the Defendant Officer Chris Del Rosario denies shooting Ms. Coles in the face, the evidence is
21 overwhelming that he is her shooter. Witness Miles Montalbano testified that the officer who shot Sri Louise

22

Coles and Mr. Montalbano was shorter in stature, had a mustache, and was darker skinned, not AfricanAmerican but may have been Latino. Ex. W, Montalbano, 176. Defendant Officer Chris Del Rosario is five

23

feet six inches tall. Officer Del Rosario was the only Red Tango Team member using a 12-gauge shotgun [and therefore shooting bean bag rounds] who had a mustache. Ex. F, Tracey, 208-209; Ex. DD, Del

24 Rosario, 116. KTVU News footage shows Defendant Del Rosario with a mustache, bare hands, and
ammunition in his gun strap on April 7, 2003, and his supervisor, Edward Tracey, identified the person in

25 that footage as Defendant Del Rosario. Ex. U; Ex. F, Tracey, 231-232. Defendant Tracey reviewed the
video of Ms. Coles’ shooter, and testified about the shooter, “There’s a strong possibility, yes, it’s Del

26 Rosario. Yes, sir.” Ex. F, Tracey, 225. On the afternoon of April 7, 2003, Defendant Del Rosario went to
court and told the sister of a criminal defendant that he “had to shoot a lot of people today” at the Port of

27 Oakland, and sarcastically said he “shot this one bitch in the forehead and her titties popped out.” Ex. EE,

Jovan Johnson Decl. ¶ 7. Defendant Del Rosario now denies shooting any women, but admits that any

28 reasonable officer would know not to target the head. Ex. DD, Del Rosario, 113-114.

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Case3:03-cv-02961 Document122 Filed11/03/05 Page20 of 31

1 Defendants admit that no warning was given before shooting people with wooden dowels either.

2 Ex. Q, Admission no. 21.

3

DC Haw was asked why the police did not give a warning that less-lethal force could be

4 used against the crowd if they failed to disperse. He answered: “There’s no requirement to do that.
5 It’s not part of the dispersal order that we use.” Ex. B, Haw, 216.
6

7

Clearly warnings were feasible. If police could give dispersal orders, police could tell the

8 crowd that failure to disperse (to a specific location, along clear routes) could result in “less-lethal”

9 force being used, including the use of drag-stabilized beanbags and wooden dowels. DC Haw

10 agrees, “We potentially could have attempted to do it, yes.” Ex. B, Haw, 219.

11 Defendants’ Use of Force policy required a warning, “if practical,” before deploying a bean
12 bag round at a person. Ex. GG, G.O. K-3 (III. J. 5). As to why he did not give any warnings on
13
April 7, 2003, Captain Yee simply states, “I didn’t even think about it.” Ex. O, Yee, 123. 14

15

No Justification to Shoot these Plaintiffs. Both bean bags and 37 mm wooden dowels can

16 be lethal, especially if they strike a person’s head or other vital area. Ex. D, Tolleson, 17-18, 53;

17 Ex. F, Tracey, 45-46. DC Haw agrees, “[S]erious injuries can certainly result from the deployment
18 of less-lethal weapons.” Ex. B, Haw, 166.
19 Defendants’ own Use of Force policy, G.O. K-3, under which all Defendants were trained,
20 stated: “The flexible baton [bean bag round] may be utilized only when lower levels of force have
21 22 been exhausted, are ineffective, or are inappropriate during attempts to control or subdue violent or
23 combative persons and the use of lethal force can be forestalled.” Ex. GG, G.O. K-3 (III. J. 3).

24 Even Defendants’ written policy did not allow the use of bean bag rounds merely for crowd

25 dispersal. Deputy Chief Howard Jordan confirms, members of the OPD were only allowed to 26

27

28

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Case3:03-cv-02961 Document122 Filed11/03/05 Page21 of 31

1 deploy bean bags in conformance with the K-3 Use of Force policy which specifically defined the

2 limited circumstances for their use. Ex. , Jordan, 84-85. 13

3

Defendants admit “Defendants have no evidence or testimony that Plaintiff [Sri Louise

4 Coles, Ron Smith, Jennifer Hansen, and Scott Bohning] ever personally engaged in violence or
5 threatened violence at the Port of Oakland on April 7, 2003.” Ex. Q, Admissions nos. 2, 5, 8 and 11.
6

7

Defendants also admit “Defendants have no evidence or testimony that any of Plaintiffs

8 [Coles, Smith, Hansen, and Bohing] … ever threw, or attempted to throw, any rock or other item at

9 anyone at the Port of Oakland on April 7, 2003.” Ex. Q, Admission no.16.

10

Defendants also admit that “Defendants have no evidence or testimony that Plaintiff [Ron

11 Smith, Jennifer Hansen, and Scott Bohning] ever personally posed a threat to anyone at the Port of
12 Oakland on April 7, 2003.” Ex. Q, Admissions nos. 4, 7 and 10. Although Defendants refused to
13
admit this request as to Ms. Coles, Defendants were unable to identify any evidence in their 14

15 corresponding interrogatory answer to support a claim that Ms. Coles ever posed a threat to anyone

16 near the East SSA gate, the general area of MHR where she was shot. Ex. FF Defs’ Interrog..

17 answer no. 1 (RFA 1). The video footage makes clear that she was either taking cover or trying to

18 run to safety the entire time, and posed no threat to anyone. Ex. U.

19 All of these four Plaintiffs were dispersing when they were shot. Defendants admit that it
20 would be a use of excessive force to shoot with a “less-lethal” projectile a person who is dispersing.
21
22 Ex. O, Yee, 149-150; Ex. B, Haw, 165; Any reasonable officer would know that. Id., at Ex. O.

23

It is also clear that Ms. Coles, Mr. Smith, and Mr. Bohning should not have been shot in the

24 face. Chief Word agrees it is “strictly forbidden” to fire a bean bag at a person’s head, because “to

25 do so would constitute deadly force.” Ex. G, Word, 151; Ex. HH, Jordan, 99-100; Ex. F, Tracey,
26
13 “[T]raining materials are relevant not only to whether the force employed in this case was objectively
27 unreasonable, … but also to whether reasonable officers would have been on notice that the force employed
was objectively unreasonable.” Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003)
28 (emphasis in original).

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1 45. Chief Word adds, “I can see no reason to intentionally shoot her [Ms. Coles] in the head.” Ex.

2 G, Word, 187.

3

Finally, at his recent deposition, Sgt. (now, Captain) Tracey, leader of the Red team that shot

4 Ron Smith, candidly assessed whether it was appropriate for his team to shoot Mr. Smith:

5

Q: If a person were at least 50 feet or as much as 100 feet in front of the

6

skirmish line, wearing press passes, backing up while filming the skirmish

7

line, is that the type of person that should have been targeted for LessLethal?14

8 A: No, sir.
9

Q: Why is that? 10

11

A: You said a couple of key things there. 50 to 100 feet. Backing up. Obvious

identification, press. Camera. That’s a no-brainer.

12

Q: Any one of those things should have made it clear to an officer deploying

13

Less-Lethal that that is a person who should not be targeted. Is that correct?

14

A: Yes.

15 Ex. F, Tracey, 255-256 (emphasis added).
16 III. STANDARD OF REVIEW
17
Summary judgment is appropriate when there is no genuine dispute as to material facts and 18

19 the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Toscano v. Prof'l

20 Golfers Ass'n, 258 F.3d 978, 982 (9th Cir. 2001). Material facts are those that may affect the

21 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S.
22 Ct. 2505 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a 23
reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the 24
evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255. 25

26

27

28 14 These facts are all undisputed. Ex. U, VIDEO; Ex. L, Smith, 96-102; Ex. M, press passes.

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1

A party seeking summary judgment bears the initial burden of informing the court of the

2 basis for its motion, and of identifying those portions of the pleadings and discovery responses that
3 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 4
323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party will have the burden of 5
proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than 6 7 for the moving party. Id. at 322-23. However, on an issue for which its opponent will have the
8 burden of proof at trial, the moving party can prevail merely by “pointing out to the District Court .

9 . . that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. If the

10 moving party meets its initial burden, the opposing party must then “set forth specific facts showing

11 that there is a genuine issue for trial” in order to defeat the motion. Fed. R. Civ. P. 56(e); Anderson,
12 477 U.S. at 250.
13
IV. ARGUMENT 14

15 A. 16

By Intentionally Shooting with Less-Lethal Projectiles, Without Warning, NonThreatening, Dispersing Plaintiffs, Defendants Violated Plaintiffs’ Fourth Amendment Rights to Be Free from Excessive Force.

17

This Court has determined that under these circumstances, Defendants’ use of “less-lethal”

18 force must be evaluated under the Fourth Amendment. Dkt. No. 57, Order Denying Defendants’
19 Motion to Dismiss. Under the Fourth Amendment, police may use only such force as is objectively
20 reasonable under all the circumstances. Alexander v. City and County of San Francisco, 29 F.3d
21 22 1355, 1366 (9th Cir. 1994), cert. den., 513 U.S. 1083 (1995), citing Graham v. Connor, 490 U.S.
23 386, 397 (1989) (emphasis in original).

24

The “reasonableness” of a particular use of force must be judged from the perspective of a

25 reasonable officer on the scene. Id. “Nevertheless, the reasonableness inquiry is an objective one:
26 the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 27
circumstances confronting them, without regard to their underlying intent or motivation.” Id., citing 28

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1 Graham, 490 U.S. at 395. “The essence of the Graham objective reasonableness analysis is that the

2 force which was applied must be balanced against the need for that force: it is the need for force
3 which is at the heart of the Graham factors.” Headwaters Forest Defense v. County of Humboldt, 4
(Headwaters II) 276 F.3d 1125, 1130 (9th Cir. 2002) (emphasis in original). 5
“Force, [even if] less than deadly, is not to be deployed lightly. To put it in terms of the test 6 7 we apply: the degree of force used by the police is permissible only when a strong government
8 interest compels the employment of such force.” Drummond v. City of Anaheim, 343 F.3d 1052,

9 1057 (9th Cir. 2003) (emphasis in original), citing, Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th

10 Cir. 2001) and Headwaters II, 276 F.3d at 1130.
11 Factors to consider include, among others, “the severity of the crime at issue, whether the
12 suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
13 resisting arrest or attempting to evade arrest by flight.” Ting v. U.S., 927 F.2d 1504, 1510 (9th Cir.
14
15 1991), citing Graham v. Connor, supra. An en banc panel of the Ninth Circuit recently declared

16 which factor is “the most important single element of the three specified factors: whether the

17 suspect poses an immediate threat to the safety of the officers or others.” Smith v. City of Hemet,

18 394 F.3d 689, 702 (9th Cir. 2005) (en banc).
19 The Ninth Circuit also resolved that less intrusive alternatives, as a part of the “totality of the
20 circumstances,” must be considered when assessing the reasonableness of a particular use of force.
21 22 Smith v. City of Hemet, 394 F.3d at 701 (“In some cases, for example, the availability of alternative
23 methods of capturing or subduing a suspect may be a factor to consider.”).

24

With regard to deadly force, “There can be no question that apprehension by the use of

25 deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” 26 Reed v. Hoy, 891 F.2d 1421, 1426 (9th Cir. 1989), cert. denied, 501 U.S. 1250 (1991), citing 27

28

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1 Tennessee v. Garner, 471 U.S. 1, 7 (1985). 15 “[S]uch force may not be used unless it is necessary

2 to prevent the escape and the officer has probable cause16 to believe that the suspect poses a

3 significant threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at 3.

4 “Moreover, whenever practicable, a warning must be given before deadly force is employed.”
5 Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997), cert. den. 522 U.S. 1115 (1998).
6

7

The Ninth Circuit has expressed concern with “less-lethal” weapons such as bean bags:

8

We have previously emphasized our concern with the unconstrained use of

similar less-than-lethal devices in situations where no warning is given. See Deorle

9

v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (discussing "cloth-cased round")

("less than deadly force that may lead to serious injury may be used only when a

10

strong governmental interest warrants its use, and in such circumstances should be

preceded by a warning, if feasible"); cf. Headwaters Forest Defense Council v.

11

County of Humboldt, 240 F.3d 1185, 1200-1201 (9th Cir. 2001) (discussing use of

pepper spray).

12 Boyd v. Benton Co., 374 F.3d 773, 779 (9th Cir. 2004). In Boyd, the Ninth Circuit granted qualified

13
immunity to officers who misused a “flash-bang” device that burned a plaintiff, due to the lack of 14

15 clearly established law concerning that device in 1997. 374 F.3d at 784. Still, the Court held that

16 officers did violate the plaintiff’s rights, and that the use of this potentially dangerous “less-lethal”

17 device required “a strong governmental interest, careful consideration of alternatives and

18 appropriate measures to reduce the risk of injury.” 374 F.3d at 779.

19

Bean bags were specifically addressed by the Ninth Circuit in Deorle. The Deorle Court

20 noted that the “bean bag” “euphemism grossly underrates the dangerousness of this projectile. The
21 round is not some sort of ‘hackey-sack.’ It is a projectile capable of inflicting serious injury or
22

23 death, rather than some children's toy.” 272 F.3d at 1279, n. 13. Given the danger posed by this

24
15 The infliction of deadly force, regardless of the purpose for the force, is in and of itself, a seizure. Reed,
25 891 F.2d at 1426 (“We hold that the ‘seizure’ requirement was satisfied by Hoy's shooting of Reed.”).
26 16 The requirement of “probable cause” means police must meet a higher standard to justify the use of deadly
force than they would need for non-deadly force. See, Monroe v. City of Phoenix, 248 F.3d 851, 859-860
27 (9th Cir. 2001) ("the existence or absence of probable cause lacks relevance outside the deadly force context
described by Garner. . . . The existence of probable cause is a more specific and demanding standard than the
28 Graham [v. Connor] standard”), citing Brewer v. City of Napa, 210 F.3d 1093, 1097-1098 (9th Cir. 2000).

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Case3:03-cv-02961 Document122 Filed11/03/05 Page26 of 31

1 type of force, it “is not to be deployed lightly.” 272 F.3d at 1280. Bean bags may be deployed

2 “only when a strong governmental interest compels the employment of such force.” Id.

3

The Court explained, “A desire to resolve quickly a potentially dangerous situation is not the

4 type of governmental interest that, standing alone, justifies the use of force that may cause serious
5 injury.” 272 F.3d at 1281. Similarly, “a simple statement by an officer that he fears for his safety or
6

7 the safety of others is not enough; there must be objective factors to justify such a concern.” Id.

8

The failure to consider other less dangerous alternatives to bean bags, and the failure to give

9 a warning, “strongly supported” the Court’s conclusion that the force was excessive in that case.

10 272 F.3d at 1282. On March 16, 2001, more than two years before the incident at the Port of

11 Oakland, the Deorle Court concluded:

12

Every police officer should know that it is objectively unreasonable to shoot -- even

13

with lead shot wrapped in a cloth case -- an unarmed man who: has committed no

serious offense, is mentally or emotionally disturbed, has been given no warning of

14

the imminent use of such a significant degree of force, poses no risk of flight, and

15

presents no objectively reasonable threat to the safety of the officer or other

individuals.

16 272 F.3d at 1284.

17

The Ninth Circuit also determined that “warnings should be given, when feasible, if the use 18

19 of force may result in serious injury, and that the giving of a warning or the failure to do so is a

20 factor to be considered in applying the Graham balancing test.” 272 F.3d at 1284.

21

In the present case, Defendants Word, Haw, and Yee authorized the use of dangerous “bean

22 bag” and wooden dowel projectiles for the purpose of dispersing a crowd of people exercising their
23 First Amendment rights. Defendants have no evidence that any of the four Plaintiffs herein posed
24 any threat to anyone at the Port – the most important of the Graham factors. Smith v. City of
25 Hemet, 394 F.3d at 702. Defendants deny that they were trying to arrest these Plaintiffs, so
26
27 Plaintiffs cannot be deemed to have been “actively resisting arrest” or attempting to evade arrest.

28 None of these Plaintiffs has ever been charged with any crime stemming from anything that

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Case3:03-cv-02961 Document122 Filed11/03/05 Page27 of 31

1 happened that day, despite Defendants’ knowledge of their presence at the Port at least since

2 Plaintiffs’ Government Tort Claims were filed within days or weeks of the incident. In short,
3 Defendants have no evidence that it was necessary to use any force against Ms. Coles, Mr. Smith, 4
Ms. Hansen, and Mr. Bohning. 5
Moreover, Defendants admit that they never gave any warning that these Plaintiffs were 6 7 subject to being shot with “less-lethal” projectiles, despite the obvious feasibility of such a warning.
8 Defendants cannot meet their burden to show that a “strong governmental interest compel[led] the

9 employment of such force.” Deorle, 272 F.3d at 1280.

10

In the case of Ms. Coles, Mr. Smith, and Mr. Bohning, Defendants used deadly force in

11 shooting each of them in the head. “[N]ot merely the quantum of force, but also how that force is
12 applied, may render it more or less likely to cause death.” Drummond, 343 F.3d at 1057, n. 4.
13
Defendants, including Chief Word, admit that intentionally shooting a bean bag at a person’s head 14

15 constitutes deadly force. Each “deployment” of a less-lethal bean bag or wooden dowel was

16 intentional. Ex. Q, Admission nos. 18 and 19. Defendants agree that there was never any

17 justification for deadly force.

18

Finally, each of these four Plaintiffs was dispersing when shot. Defendants have no

19 evidence to rebut this strong fact. Everyone agrees there was no justification to shoot a person who
20 was dispersing from the Port of Oakland on April 7, 2003.
21

22

The OPD’s use of bean bags to strike Sri Louise Coles and Ron Smith, and use of bean bags

23 and/or wooden dowels to strike Jennifer Hansen and Scott Bohning, violated these Plaintiffs’ Fourth

24 Amendment rights to be free from excessive force.

25 B. 26 27

Defendants Word, Haw, and Yee Are Liable for these Fourth Amendment Violations as the Supervisors Who Ordered these Uses of Force.
A supervisor can be liable under § 1983 if he “set in motion a series of acts by others, or

28 knowingly refused to terminate a series of acts by others . . ., which he knew or reasonably should

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Case3:03-cv-02961 Document122 Filed11/03/05 Page28 of 31

1 have known, would cause others to inflict the constitutional injury.” Larez v. City of Los Angeles,

2 946 F.2d 630, 646 (9th Cir. 1991). Direct involvement of a supervisor in a constitutional deprivation

3 subjects that supervisor to liability. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.
4 1991) (en banc). “Supervisory liability may be found in civil rights actions even if the supervisors
5 in question are not directly involved in the acts leading to the constitutional deprivation.” Motley v.
6 7 Parks, 383 F.3d 1058, 1067 (9th Cir. 2004).

8

Here, Defendants Word, Haw, and Yee were directly involved. As the highest policy-

9 making officer in the OPD, Chief Word authorized the use of bean bags and wooden dowels for

10 crowd dispersal at the April 7, 2003 Port of Oakland demonstration, and he personally delegated his
11 authority to order exactly when and where such force was to be used on scene. Ex. G, Word, 24-25,
12 32. Captain Yee recommended that “Less-Lethal” projectiles be fired into the crowd, and DC Haw
13 made the final decision to order their “deployment” at different locations. Ex. O, Yee, 114-116; Ex.
14
15 B, Haw, 152-155; Ex. G, Word, 89-90.

16

Both DC Haw and Captain Yee were close by each time “less-lethal” projectiles were

17 deployed against members of the crowd. DC Haw and Yee personally observed the use of these

18 munitions against people in the crowd, again and again. They were present and on videotape at
19 location #4, when Sri Louise Coles and Ron Smith were shot within seconds of each other. They
20 personally directed the use of these munitions at location #5 and north from there as well. Thus,
21 22 they have supervisory liability for the violations of rights caused by their decisions to fire bean bags
23 and wooden dowels into the crowd of people exercising their First Amendment rights.

24

As Chief Word stressed, “To my knowledge, no officer made an individual decision to

25 deploy force without first being given the okay. They’re directed to do so by a command officer.”
26 Ex. G, Word, 153. And, supervisory liability is supported by the exoneration of all shooters from 27
use of force complaints due to the department’s conclusion that all “less-lethal” uses of force on 28

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22

Case3:03-cv-02961 Document122 Filed11/03/05 Page29 of 31

1 April 7, 2003, were ordered by command officers and “consistent with department policy and

2 training.” Ex. P, Internal Affairs memos.

3

The fact that some officers may have shot people who should not have been shot in this

4 large, dynamic crowd, is ultimately the responsibility of Defendants Word, Haw, and Yee, for they
5 were the ones who “set in motion a series of acts by others, or knowingly refused to terminate a
6

7 series of acts by others . . ., which [they] knew or reasonably should have known, would cause

8 others to inflict the constitutional injury.” Larez, 946 F.2d at 646.

9 C. 10 11

Defendant City of Oakland Is Liable for the Violations of Rights Ordered or Directed by its Policy-Makers.
Since Chief Word, as a policy-maker for the City, ultimately authorized the use of less-lethal

12 projectiles against the crowd in this event, the City of Oakland is liable for violations of rights

13 caused by that policy decision. Gibson v. County of Washoe, 290 F.3d 1175, 1185-1187 (9th Cir.

14 2002), cert. denied, 537 U.S. 1106 (2003). See also, Ninth Cir. Model Civil Jury Instr. 11.12.17

15 It is not necessary for municipal liability to identify the officers who shot each of the
16 Plaintiffs where the unconstitutional conduct was ordered or directed by a policy-maker. Gibson,
17
290 F.3d at 1186, n.7. 18

19 D. 20

Defendants Word, Haw, Yee, and the City of Oakland Are Liable under California Civil Code § 52.1 for their Interference, by Threats, Intimidation, or Coercion, with Plaintiffs’ Constitutional Rights.

21

Cal. Civil Code §52.1 provides a private right of action for damages against any person who

22 “interferes…,” or “attempts to interfere by threats, intimidation, or coercion,” with the exercise or
23 enjoyment of rights under California or federal law. The California Supreme Court has held that
24 section 52.1 requires “an attempted or completed act of interference with a legal right,
25 26 accompanied by a form of coercion.” Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998). Only

27 17 “11.12 – MUNICIPAL LIABILITY – When a plaintiff is deprived of a constitutional right as a result of
the official policy of a city, the city is liable for damages caused by the deprivation. "Official policy" means:
28 … (2) a policy statement or decision that is officially made by the city's policy-making official.”

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Case3:03-cv-02961 Document122 Filed11/03/05 Page30 of 31

1 these express elements are necessary to sustain a claim under §52.1; although this section was

2 enacted, in part, in response to a tide of “hate crimes,” it is not limited to “hate crimes,” however

3 one might define that term. Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1289
4 (9th Cir. 2001) (§52.1 is to be interpreted broadly, and not limited to “hate crimes”).
5 In Venegas v. County of L. A., 32 Cal. 4th 820, 827; 11 Cal. Rptr. 3d 692 (2004), the
6
7 California Supreme Court allowed a claim under § 52.1 for an unreasonable seizure.

8

For all of the reasons set forth above, Defendants Word, Haw, Yee, and the City of Oakland

9 are liable under § 52.1. The only element beyond that which is already proven – that Plaintiffs’

10 rights were interfered with by “threats, intimidation, or coercion,” – is easily satisfied here where
11 Defendants actually violated their Fourth Amendment rights with violence. Winarto, 274 F.3d at
12 1289-1290 (violation of rights with violence sufficient to state a claim under § 52.1). The whole
13 undisputed course of OPD conduct here, including lines of motorcycles and police relentlessly
14
15 pushing Plaintiffs over great distances, driving motorcycles aggressively toward Plaintiffs, firing

16 real 12 gauge shotguns at Plaintiffs, and ultimately striking Plaintiffs with dangerous, and painful,

17 projectiles, constitutes “threats, intimidation, or coercion.”

18

Additionally, under state law, the City of Oakland is vicariously liable for the torts of its

19 employees, whether or not those employees are ever identified. Under Cal. Govt. Code § 815.2, a
20 “public entity is liable for injury proximately caused by an act or omission of an employee of the
21
22 public entity within the scope of his employment if the act or omission would … have given rise to

23 a cause of action against that employee or his personal representative.” More to the point, the

24 official legislative committee comments to that section explain:

25

Under this section, it will not be necessary in every case to identify the particular

26

employee upon whose act the liability of the public entity is to be predicated. All that will be necessary will be to show that some employee of the public entity tortiously

27

inflicted the injury in the scope of his employment under circumstances where he

would be personally liable.

28

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Case3:03-cv-02961 Document122 Filed11/03/05 Page31 of 31

1 Legis. Com. Com., West’s Ann. Govt Code, foll. § 815.2.

2

The California Court of Appeal has instructed § 815.2 is to be applied in accordance with

3 these legislative committee comments. Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450,
4 1462, n. 5, 81 Cal. Rptr. 2d 165, 171, n. 5 (Cal. Ct. App. 1998) (identification of a specific
5 employee tortfeasor is not required for vicarious liability of a municipality under § 815.2); Michael
6
7 J. v. Los Angeles County Dept. of Adoptions, 201 Cal. App. 3d 859, 867, n. 2, 247 Cal. Rptr. 504,

8 507, n. 2 (Cal. Ct. App. 1988) (same); Perez v. City of Huntington Park, 7 Cal. App. 4th 817, 820-

9 821, 9 Cal. Rptr. 2d 258, 260 (Cal. Ct. App. 1992) (“The plaintiff may be unable to identify which

10 employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence
11 establishes that some employee in the scope of employment committed the wrongful act.”).
12 It is established that some Oakland police officers shot Plaintiffs Coles, Smith, Hansen, and
13 Bohning with “less-lethal” projectiles, that such use of force was excessive, and that those violent
14
15 acts satisfy the threats, intimidation, or coercion required by § 52.1. Therefore, pursuant to Gov.

16 Code § 815.2, the City of Oakland is vicariously liable for such acts of its employees.

17

CONCLUSION AND RELIEF REQUESTED

18

For the reasons set forth herein, Plaintiffs Coles, Smith, Hansen, and Bohning respectfully

19 request partial summary judgment as follows:

20

3. A finding, as a matter of law, that the Oakland police used excessive force against

21

each of them when they were shot by “less-lethal” projectiles at the Port of Oakland

on April 7, 2003;

22

4. A finding of liability against Defendants City of Oakland, Chief Word, DC Haw, and

23

Captain Yee as to these Plaintiffs’ claims under the Fourth Amendment and Cal.

Civil Code § 52.1.

24

Respectfully Submitted,

25

DATED: November 3 , 2005 26

HADDAD & SHERWIN

27

/s/____________________

28

MICHAEL J. HADDAD

No.: C03-2961 TEH: COLES PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

25

 
 Case3:03-cv-02961 Document125 Filed11/03/05 Page1 of 32

1 Gregory M. Fox, State Bar No. 070876 Arlene C. Helfrich, State Bar No. 096461
2 Nancy A, Huneke, State Bar No. 114973 BERTRAND, FOX & ELLIOT
3 The Waterfront Building 2749 Hyde Street
4 San Francisco, California 94109 Telephone: (415) 353-0999
5 Facsimile: (415) 353-0990

6 John A. Russo, State Bar No. 129729 Oakland City Attorney
7 Randolph W. Hall, State Bar No. 080142 Chief Asst. City Attorney
8 Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor
9 Oakland CA 94612 Telephone: (510) 238-3601
10 Facsimile: (510) 238-6500

11 Attorneys for Defendants CITY OF OAKLAND and POLICE CHIEF RICHARD WORD, et al.
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

16 SRI LOUISE COLES, et al.

) File No. C -03-2961 TEH (JL)

17 Plaintiffs

) ) DEFENDANTS’ MOTION FOR SUMMARY

18 vs.
19

) JUDGMENT OR, IN THE ALTERNATIVE, ) SUMMARY ADJUDICATION AGAINST ) INDIVIDUAL PLAINTIFFS

20

CITY OF OAKLAND, a municipal entity, et al.

) )

Date:

December 12, 2005

21

Defendants.

) Time: 10:00 a.m. ) Location: Courtroom 12, 19th Floor

22

)

) Hon. Thelton E. Henderson 23

24

25

26

27

28

__________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02961 Document125 Filed11/03/05 Page2 of 32

1

TABLE OF CONTENTS

2

NOTICE OF MOTION FOR SUMMARY JUDGMENT...............................................................1

3 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
4 I. STATEMENT OF ISSUES ...........................................................................................1
5

6

II. FACTS ...........................................................................................................................2

7

A. OPD Adoption of the Mobile Field Force Concept and Less Lethal

8

Impact Weapons, Prior Experience With Less Lethal ................................................2

9

B. OPD Plans for the Protest ...........................................................................................3

10

C. Plaintiffs Injured at East SSA Gate.............................................................................5

11
D. Plaintiffs Injured On Maritime Street .........................................................................7 12

13

E. Defendants’ Response.................................................................................................9

14

III. ARGUMENT...............................................................................................................12

15

A. FOURTH AMENDMENT SEIZURE: Plaintiffs Were Not “Seized”

16

Under the Fourth Amendment ..................................................................................12

17

1. Use of Force Alone Does Not Implicate The Fourth

Amendment.......................................................................................13 18

19

2. Force Used to Disperse is NOT a Seizure .......................................13

20

3. Plaintiffs Were Always ‘Free to Leave’ ...........................................14

21 B. QUALIFIED IMMUNITY .......................................................................................15
22

23

1. The Defendants Who Did Not Fire or Authorize the Use of Less Lethal Projectiles Are Entitled to Qualified

24

Immunity on All Claims ...................................................................15

25

2. Officers Who Fired Less Lethal or Used the BUMP and

the Command Staff Are Entitled to Qualified Immunity

26

on First Amendment and Excessive Force Claims ...........................16

27

a. The Law Was Not Clearly Established that Defendants

28

Could Not Declare an Unlawful Assembly and Issue Multiple Dispersal Orders.................................................................17

i __________________________________________________________________________________________________________________________

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ADJUDICATION – Coles v. Oakland C-03-2961 THE (JL)

Case3:03-cv-02961 Document125 Filed11/03/05 Page3 of 32

1

b. The Law Was Not Clearly Established that Defendants

Could Not Use the BUMP ort Less Lethal .......................................20

2

3

c. The Officers’ Conduct Was Objectively Reasonable as to Both the First Amendment and Use of Force Issues.........................23

4 d. The Same Principles Apply to the Command Staff ..........................23
5

6

C. STATE LAW CLAIMS: The Individual Defendants Are Entitled to

Immunity Pursuant to California Government Code § 820.2 ...................................24

7

IV. CONCLUSION............................................................................................................25 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
ii __________________________________________________________________________________________________________________________
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Case3:03-cv-02961 Document125 Filed11/03/05 Page4 of 32

1

TABLE OF AUTHORITIES

2 Cases
3 ACORN v. City of Phoenix
4 (9th Cir. 1986) 798 F.2d 1260 ...........................................................................................................20
5 Act Up!/Portland v. Bagley 6 (1993) 988 F2d 868............................................................................................................................23

7 Adderley v. Florida (1966) 385 U.S. 39......................................................................................................................17, 18
8

9

Backlund v. Barnhart (9th Cir. 1985) 778 F.2d 1386 ..........................................................................................................17

10 Boyd v. Benton County
11 (9th Cir. 2004) 374 F.3d 773 ............................................................................................................22

12 Bray v. Alexandria Women's Health Clinic (1993) 506 U.S. 263...........................................................................................................................22
13

14

California v. Hodari D. (1991) 499 U.S. 621...........................................................................................................................13

15 Chew v. Gates
16 (9th Cir. 1994) 27 F.3d 1432 ............................................................................................................23

17 Chuman v. Wright 18 (9th Cir. 1996) 76 F.3d 292 ..............................................................................................................16
19 Colten v. Kentucky (1972) 407 U.S. 104, 109..................................................................................................................20
20 Coming Up, Inc. v. City and County of San Francisco
21 (N.D.Cal 1994) 857 F.Supp. 711 .......................................................................................................24

22 County of Sacramento v. Lewis 23 (1998) 523 U.S. 833....................................................................................................................13, 22
24 Cox v. New Hampshire (1941) 312 U.S. 569.....................................................................................................................19, 20
25 Deorle v. Rutherford
26 (9th Cir. 2003) 272 F.3d 1272 ............................................................................................................21
27 Dodd v. City of Norwich 28 (2d Cir. 1987) 827 F.2d 1 ..................................................................................................................23

iii __________________________________________________________________________________________________________________________
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Case3:03-cv-02961 Document125 Filed11/03/05 Page5 of 32

1 Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269 .............................................................................................................25
2

3

Forrester v. City of San Diego (9th Cir. 1994) 25 F.3d 804 ........................................................................................................21, 22

4 Gates v. Superior Court
5 (1995) 32 Cal.App.4th 48 ...................................................................................................4, 5, 23, 24

6 Graham v. Conner (1989) 490 U.S. 386...............................................................................................................13, 19, 22
7

8

Grayned v. City of Rockford (1972) 408 U.S. 104...........................................................................................................................18

9 Grossman v. City of Portland
10 (9th Cir. 1994) 33 F.3d 1200 ............................................................................................................24

11 In re Wagner 12 (1981) 119 Cal.App.3d 90 .................................................................................................................19
13 Ingraham v. Wright (1977) 430 U.S. 651...........................................................................................................................14
14 International Society for Krishna Consciousness, Inc. v. Lee
15 (1992) 505 U.S. 672...........................................................................................................................19

16 Jones v. Wellham 17 (1997) 104 F.3d 620...........................................................................................................................14
18 Knox v. Southwest Airlines (9th Cir. 1997) 124 F.3d 1103 ..........................................................................................................23
19 Larez v. City of Los Angeles
20 (9th Cir. 1991) 946 F.2d 630 ............................................................................................................24
21 Leer v. Murphy 22 (9th Cir. 1988) 844 F.2d 628 .......................................................................................................15, 17
23 Lyng v. Northwest Indian Cemetery (1988) 485 U.S. 439...........................................................................................................................13
24 Malley v. Briggs
25 (1986) 475 U.S. 335..........................................................................................................................23
26 Martinez v. County of Los Angeles 27 (1996) 47 Cal.App.4th 334 ..........................................................................................................14, 25

28 Menotti v. City of Seattle (9th Cir. 2005) 409 F.3d 1113 ..........................................................................................................24
iv __________________________________________________________________________________________________________________________
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Case3:03-cv-02961 Document125 Filed11/03/05 Page6 of 32

1 Moreland v. Las Vegas Metro. Police Dept. (9th Cir. 1998) 159 F.3d 365 .............................................................................................................16
2

3

People v. Rivera (1992) 8 Cal.App.4th 1000 ...............................................................................................................25

4 Pierson v. Ray
5 (1967) 386 U.S. 547..........................................................................................................................23

6 Romero v. Kitsap County (9th Cir. 1991) 931 F.2d 624 ............................................................................................................24
7

8

San Pedro Hotel Co. v. City of Los Angeles (9th Cir. 1998) 159 F.3d 470 ............................................................................................................15

9 Saucier v. Katz
10 (2001) 533 U.S. 194, 201 (2001) .................................................................................................17, 23

11 United States v. Grace 12 (1983) 461 U.S. 171..........................................................................................................................17
13 United States v. Kokinda (1990) 497 U.S. 720..........................................................................................................................18
14 United States v. Mendenhall
15 (1980) 446 U.S. 544...........................................................................................................................15

16 Wilson v. Layne 17 (1999) 526 U.S. 603...........................................................................................................................17
18 Statutes

19 42 U.S. Code, section 1983...................................................................................................................15

20 Civil Code Section 51 et seq.................................................................................................................24

21 Government Code Section 820.2 ................................................................................................1, 24, 25
22 Penal Code Section 370 ........................................................................................................................18
23 Penal Code Section 372 ........................................................................................................................18 24
Penal Code Section 407 ........................................................................................................................18 25
Penal Code Section 409 ..................................................................................................................18, 24 26
Penal Code Section 416 ........................................................................................................................18 27
28 Penal Code Section 602.1 .....................................................................................................................18
Penal Code Section 647c ........................................v..............................................................................18
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Case3:03-cv-02961 Document125 Filed11/03/05 Page7 of 32
1 Vehicle Code Section 21954.................................................................................................................18
2 Vehicle Code Section 21956.................................................................................................................18 3 Vehicle Code Section 2800...................................................................................................................18 4 Other Authorities 5
Oakland Municipal Ordinance, Article I, Section 12.44.020(1).............................................................3 6
Oakland Municipal Ordinance, Article II, Section 12.44.040 ................................................................4 7
Oakland Municipal Ordinance, Article II, Section 12.44.060 ................................................................4 8 9 Oakland Municipal Ordinance, Article II, Section 12.44.080 ................................................................4 10 Oakland Municipal Ordinance, Article II, Section 12.44.130 ................................................................4 11 Oakland Municipal Ordinance, Article II, Sectoin 12.44.110 ................................................................4 12 Oakland Municipal Ordinance, Section 12.44.020(2) ............................................................................3
13 Oakland Municipal Ordinance, Title XII, Article I, Section 12.44.010 ...............................................18 14 Oakland Municipal Ordinance, Title XII, Article I, Section 12.44.202 ...............................................18 15 Constitutions 16
U.S. Const., 14th Amend. .....................................................................................................................13 17
18
19
20
21
22
23
24
25
26
27
28
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Case3:03-cv-02961 Document125 Filed11/03/05 Page8 of 32

1

NOTICE OF MOTION FOR SUMMARY JUDGMENT

2

PLEASE TAKE NOTICE THAT defendants will move the court at the time and place

3 specified above, for summary judgment or, in the alternative summary adjudication: 1) on the

4 plaintiffs’ Fourth Amendment claims (except as to the arrest of plaintiff Leslie Parkinson); and 2) on

5 all claims asserted by the plaintiffs against the individual defendants on qualified immunity grounds.

6 This motion is made upon the grounds that no material dispute exists as to the above claims, and

7 plaintiffs cannot establish one or more essential elements of said claims. This motion is also made

8 upon the grounds that the individual defendants are entitled to qualified immunity on the federal

9 claims and discretionary immunity pursuant to California Government Code § 820.2 on the state law

10 claims, and that no material factual dispute exists as to these issues. This motion is based upon this

11 notice of motion and motion, the declarations of Gregory M. Fox, Deputy Chief Howard Jordan,
Captain Rod Yee, Lieutenant Ed Tracey, Lt. Dave Kozicki, and Sergeant Gary Tolleson, as well as 12
the complete records contained in the court’s file in this matter, and such further evidence, whether 13
documentary or oral, as may be presented at the time of the noticed hearing. Defendants also 14
incorporate by reference as though fully set forth herein the points and authorities, evidence and 15
declarations filed in support of the motion for summary judgment in the Local 10 case. 16
MEMORANDUM OF POINTS AND AUTHORITIES 17
I. STATEMENT OF ISSUES 18
Defendants move this Court for summary judgment on the following issues: 19
1. The Fourth Amendment claims, based on the fact that there is no evidence plaintiffs were
20 arrested, subjected to an investigatory stop, or otherwise seized within the meaning of the Fourth
21 Amendment since they were hit by less lethal after refusing to disperse, and their freedom of
22 movement was not restricted.

23

2. The claims against the individual defendants in their individual capacity, based on

24 defendants' entitlement to qualified immunity, given that the declaration of an unlawful assembly and

25 use of less lethal projectiles did not violate plaintiffs' constitutional rights, the law was not clearly

26 established, and the officers' conduct was objectively reasonable.

27 ///

28 ///

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1 II. FACTS

2 A. 3

OPD Adoption of the Mobile Field Force Concept and Less Lethal Impact Weapons, Prior Experience with Less Lethal

4

In 2000 and thereafter OPD confronted a growing and violent urban phenomenon known as

5 “sideshows” and a new era of street demonstrations protesting the federal government’s foreign and

6 economic policies. Responding to these trends, OPD began revising its crowd control policies and
training, consulting with police departments in Seattle and San Diego, among others, regarding the 7
new concept of a “Mobile Field Force” (“MFF”), a rapid, organized and disciplined crowd event 8
response using motorized mobile response teams. MFF had the flexibility to control or disperse 9
unruly crowds and/or apprehend multiple offenders simultaneously. Each MFF included officers 10
working in skirmish lines equipped with batons to disperse crowds and separate arrest teams.1 But 11
traditional skirmish line baton dispersal tactics had disadvantages. Officers had to physically 12
confront demonstrators, and hand to hand pushing and jabbing with batons resulted in physical 13
confrontations over the batons and occasional police misuse of the baton during the “heat of battle.”
14 Prolonged pushing with batons also physically tired officers, further increasing the risk of injury to
15 officers or demonstrators. OPD was therefore interested in new impact weapon technology for

16 dispersal that also had the advantage of creating distance between officers and protesters thereby

17 minimizing the above problems.2

18

OPD had been successfully using specially trained SWAT team members equipped with less

19 lethal impact weapons, primarily 12-gauge and .37 mm “bean bags” and wooden dowels in non-

20 crowd control situation. These weapons were classified as impact weapons similar to batons with

21 similar rules of engagement and the same prohibited strike areas. The manufacturers of less lethal

22 impact weapons had also recommended to OPD that these weapons were appropriate for managing or

23 dispersing crowds and would result in minimal physical injuries when discharged at the

24 recommended distances. OPD’s K-3 Use of Force Policy specifically included “bean-bags” as an

25 impact weapon and allowed for its use in crowd control situations as an option to traditional baton

26

27

28 1
2

Declaration of Gary Tolleson. Ibid.

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1 dispersal techniques.3

2

The California Commission on Peace Officer Standards and Training ("POST") also

3 recommended less lethal munitions as a use of force option during crowd events in its March 2003

4 Crowd Management and Civil Disobedience Guidelines. POST defined less lethal as “[s]pecialty

5 impact ammunitions, hand-delivered or propelled from launching devices, designed to immobilize,

6 incapacitate or stun a human being, citing Penal Code section 12601[c].” The Contra Costa County

7 and Alameda County Sheriff’s offices also have adopted the Mobile Field Force concept, using

8 various types of “less lethal” equipment such as “12 gauge bean bags”, OC spray, “pepper balls,” 9 Tasers and in one case, dogs.4

10

OPD created written planning guides for training officers on the evolving MFF concept and

11 provided extensive training in 2002 and early 2003 on MFF tactics, including the use of less lethal

impact weapons to disperse crowds. Only specially trained tactical officers were allowed to use less 12
lethal impact weapons and they were to be organized into small groups (“tango teams”) under the 13
direct supervision of a sergeant. The decision on when to use less lethal for dispersal purposes was 14
delegated to the chief of police or his assigned incident commander.5 15
In 2003 OPD utilized the MFF and less lethal munitions extensively to manage and disperse 16
crowds following the Oakland Raiders AFC championship game and the Super Bowl Game in 17
January 2003. Crowd sizes ranged from 300-1,000 persons and problems included blockage of 18
streets and sidewalks, firebombing of vehicles, and looting of commercial stores and attacks on the 19
police and firefighters. Although OPD was criticized for not being more aggressive in its tactics, the
20 department concluded that the MFF system and use of less lethal impact weapons were both
21 reasonable and effective crowd control and dispersal tactics. The ability of officers to “standoff“

22 while dispersing crowds with less lethal impact weapons further enhanced officer safety.6

23 B. OPD Plans for the Protest

24

The protestors did not apply for a permit7 prior to the demonstration and did not meet with

25

26 3

bid.; Exhibit A to Tolleson Dec., Defense Technology product information and specifications.

4
27 5

Ibid; Exhibit B to Tolleson Dec., POST Crowd Management and Civil Disobedience Guidelines. Tolleson Dec.

6
28 7

Ibid. Oakland Municipal Ordinances ("OMO") established free speech zones in the vicinity of City Hall and the

federal courts. OMO, Article I, § 12.44.020(1), § 12.44.020(2). People may take advantage of these free speech zones

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1 OPD to establish liaisons and identify potential problems that might arise, particularly in light of the

2 fact that there were no public sidewalks, public parks, or other open public space in the immediate

3 area suitable for a legal demonstration. Thus, the protestors could only congregate on private

4 property leased by the shipping lines, APL and SSA, or on the only public roadway accessing the

5 Port, Middle Harbor Road. The protestors were not willing to engage in non-violent civil

6 disobedience, that is, to submit to lawful arrest as a means of political protest. Rather, protest

7 organizers specifically stated their goal was to shut down the Port.8

8

By locating the "picket lines" directly in front of the APL and SSA Main Gates, and/or on the

9 public roadway, the demonstrators would stop all truck and other vehicular traffic from circulating

10 through the Port. Blockading the Main Gates and the single public roadway accessing the Port would

11 cause Port truck traffic to back up and potentially gridlock the Bay Bridge approaches and freeway
system, presenting a clear and present danger to the Bay Bridge transportation system and a serious 12
public safety hazard.9 Accordingly, the OPD developed an Operations Plan ("Ops Plan") that 13
anticipated the potential safety hazard by designating a specific protest area while ensuring continued 14
truck traffic circulation through the rest of the Port. 15
The expressed intent of the planned response to the protest was: 1) to allow the peaceful and 16
orderly expression of free speech and lawful assembly rights; 2) to prevent any non-authorized 17
occupation of any area with the Port of Oakland; 3) to prevent any disruption of business at APL; 4) 18
to prevent the intimidation of employees and visitors to the Port; 5) to prevent the disruption of
19 surrounding businesses and city streets; 6) to prevent illegal/criminal behavior; 6) to arrest violators;
20

21
without obtaining a permit as long as they comply with City traffic ordinances. Ibid. Persons who wish to "parade" in

22

a manner that may obstruct the normal flow of pedestrian or vehicle traffic or otherwise violate traffic laws, must obtain a permit from the Chief of Police. OMO Art. II, §§ 12.44.060, 12.44.080, 12.44.130, 12.44.040. The permit

23

process requires the applicant to provide information regarding the expected size of the crowd, the route, the hours, parking plans, etc., so that the City can plan for and facilitate orderly demonstrations that do not jeopardize public

24

safety or otherwise unduly interfere with the rights of nonparticipants to conduct business. OMO Art, II, § 12.44.110.

8

Fox Dec., Ex. N.

25

9

The California Highway Patrol has reported that an average of 8,000 heavy trucks travel in and out of the Port

each day with peak traffic occurring between 7:00 a.m. and 10:00 a.m., the time selected for the "picket lines." The

26

heaviest traffic day is Monday, which was also the day of the week for the planned April 7th demonstration. Declaration of David Kozicki. There are only two ways to enter and leave the Port area: the southern entrance into the Port is along

Middle Harbor Road, and the northern entrance is along 7th Street. Middle Harbor Road and 7th Street meet at the west
27 end of the Port, and Middle Harbor continues east, creating a large semi-circular route through the Port. Maritime Street

travels between Middle Harbor and 7th, creating a shorter route between the north and south entrances. To the right and
28

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1 and 7) to disperse riotous crowds in a safe direction. The Ops Plan also provided that “protesters will

2 be allowed to lawfully gather” at the East APL Gate (1395 Middle Harbor Road), which would allow

3 the protest to proceed but which would not shut down truck traffic into the Port. The Plan presented

4 different activity scenarios with related police responses that ranged from “peaceful grouping” with

5 “police monitoring” to “unlawful conduct/overt act” resulting in “issuance of a dispersal order with

6 deployment of arrest teams to the problem area and arrest made with transportation to the appropriate

7 facility.”10 Officers were not authorized to use less lethal munitions except upon approval of the

8 Incident Commander unless immediately threatened.11 The only OPD officers authorized to deploy

9 less lethal munitions at the Port were members of the Red and Blue Tango Teams.12

10

Thus, the Ops Plan showed that OPD was ready, willing and able to allow the protest to

11 proceed so long as it was conducted in a lawful manner. The protestors foiled this plan, however, by

arriving at the Port before dawn to block all the Port Main Gates before OPD arrived and, ultimately, 12
bringing truck and vehicle traffic coming into the Port to a virtual standstill.13 13
C. Plaintiffs Injured at East SSA Gate 14
1. Sri Louise Coles 15
Ms. Coles arrived at the Port at approximately 5:30 a.m. She then rode in a school bus to the 16
East APL gate. At this gate, Ms. Coles participated in a picket line which temporarily blocked a 17
Tyson Chicken truck from entering the West APL gate. She states that she was aware that the picket 18
line was blocking the truck from entering the driveway and that police were attempting to bring the
19 truck through the crowd. Nevertheless, she states that she linked arms with other protestors directly
20 in front of the truck and that she was pushed by police and jabbed by a police baton. Ms. Coles states

21 that the baton jab knocked the wind out of her, but she didn’t feel at the time that she needed medical

22 attention.14 After spending some time at the West APL gate, Ms. Coles moved to the East SSA Gate.

23

24

25 left of both Maritime and Middle Harbor are ship-loading areas and rail road yards, and both roads are lined with high

fencing along most of their length. Fox Dec., Ex. K, map.

26 10

Kozicki Dec., Ex. A, Operations Plan

11
27 12

Kozicki Dec., Ex. A, Bates-stamped page 69. Tolleson Dec., Ex. C, Bates-stamped pages 677-678, 3111

13
28 14

Ibid. and Operations Plan, Exhibit A to Kozicki Dec. Coles Dep. 66:11-13; 68:20-25; 69:5-18; 71:14-73:18; 74:17 – 75:11; 79:5 – 83:14; 86:6-11; Fox Dec. Exhibit

A. (Hereinafter, all deposition references are to the Exhibit in the Fox declaration where that testimony is

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1 When she first arrived at East SSA, she was not aware of any police presence, and did not see police

2 for another 30 to 45 minutes. During this time, she heard grenades, and understood from other 3 protestors that police were using non-dangerous rubber bbs on protestors.15 Ms. Coles continued to

4 walk in a circle in a picket line located in the driveway and roadway at the East SSA gate, and then

5 observed a line of police approaching on motorcycles. A large crowd had gathered at her location,

6 and after she heard the police give a dispersal order, the picket line broke up and people moved into 7 the street. At that point, Ms. Coles also moved into the street.16 Soon thereafter, she heard a grenade

8 explode and rather than leave the area with the other protestors, she hid behind a car parked in the

9 middle of the street. An officer told her to leave. She stepped from behind the car just as the motor

10 officers approached the area, and claims she was then pushed by a motorcycle. She again tried to

11 hide behind a parked car instead of dispersing, and she was again told by an officer to leave. Instead

of leaving the area, Ms. Coles then crossed the street and stepped up onto the curb at the railroad 12
tracks. At that point she was struck by a projectile at her left jaw line, as she turned to face toward 13
the north.17 14
After being struck by the projectile, Ms. Coles then approached a friend, and they began to 15
walk north on Middle Harbor Road to seek medical assistance. She was stopped by people who took 16
her photograph, and then she was taken by car to the hospital. After being hit, Ms. Coles was aware 17
that the police stayed in the same general location, behind her, as she left the area to seek help. Ms. 18 Coles was then driven to the hospital.18 She was diagnosed at Summit Medical Center emergency
19 room as having suffered “acute assault with contusions/abrasions to the left jaw and left neck.”19
20 Photographs of Ms. Coles taken approximately three days after the April 7, 2003 demonstration are
21 attached to the Fox Declaration as Exhibit F.

22

2. Ron Smith:

23

Mr. Smith arrived at the West Oakland BART station at about 6:15. He was taken by shuttle

24

25
26 15
16
27 17
18
28 19

authenticated.) Although Ms. Coles seems to imply in her deposition that the Tyson truck entered at East APL, see Kozicki Dec. at ¶ 5 where Lt. Kozicki indicates this occurred at West APL. Coles Dep. 86:12-22; 90:2-92:22 (Ex. A) Coles Dep. 93:11 – 94:25; 98:2-10; 101:3 – 104:23 (Ex. A) Coles Dep. 105:17 – 106:13; 109:1-15; 111:8-20; 112:10 –113:11; 115:9-22; 119:19-23 (Ex. A) Coles Dep. 124:11- 125: -24; 126:16 – 127:13 (Ex. A) Fox Dec., Ex. E

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1 bus to 7th Street and Maritime, and then walked south on Maritime Street. As he neared the

2 intersection of Maritime and Middle Harbor Road, he saw demonstrators near the East SSA gate and

3 a line of motorcycle police beyond the demonstrators. Mr. Smith had joined the main group of

4 protestors near East SSA when he heard grenades exploding. He saw some people leave in response 5 to the grenades, but saw others walking back and forth.20 He remained in the area of East SSA for

6 some minutes – less than 30 – and observed the police line moving forward towards his position and

7 he heard the sound of weapons being fired. At that point, Mr. Smith was struck in the hand with a 8 projectile. 21 After being struck, Mr. Smith moved away from police, traveling north on Middle

9 Harbor Road and then Maritime. Mr. Smith had no further contact with police as he moved to the

10 intersection of Maritime and 7th Streets.22 He received an ice pack from an ambulance worker, had a

11 medic look at his hand at the BART station, and then drove himself to Alta Bates emergency where he received treatment for his broken finger.23
12

D. Plaintiffs Injured on Maritime Street 13
1. Scott Bohning: 14
Mr. Bohning took BART to the Oakland Port, arriving at about 7:45 a.m. After arriving at the 15
Port, he got a ride to the intersection of 7th and Maritime Streets. He then began to walk southeast on 16
Maritime Street toward the intersection of Maritime Street and Middle Harbor Road. 24 He first 17
observed police when he was approximately one and one-half blocks north of the Maritime/Middle 18
Harbor intersection. Mr. Bohning observed that the police were stationary, and that approximately
19 200 to 300 people were standing or milling around between himself and the line of police near where

20 the railroad tracks cross Maritime Street.25

21

When he reached a point approximately one block from the intersection, he heard a loud bang

22 and saw people walking and running toward him. He walked a bit closer to the intersection, but then

23 turned around and joined the people walking north on Maritime.26 Mr. Bohning then walked north on

24

25
20
26 21
22
27 23
24
28 25
26

Smith Dep. 54:11-22; 57:3-58:25; 61:1 - 63:20 – 64:12; 77:3 – 79:4 (Ex. B) Smith Dep. 82:13 – 83:15; 84:7-20; 90:22-24; 96:11- 98:8; 101:3-13; 102:22-24 (Ex. B) Smith Dep. 123:11 – 24; 127:14 - 128:16; 134:15-25; 135:16-24 (Ex. B) Smith Dep. 136:1-7; 139:20 - 140:1; 142:23 – 143:14; 155:2 – 156:18 (Ex. B) Bohning Dep. 31:6-18; 32:5-33:13; 34:3-9 (Ex. C) Bohning Dep. 36:25 –37:7; 37:24 – 38:10; 39:16 – 40:10 (Ex. C) Bohning Dep. 40:11-25; 45:16 –46:19 (Ex. C)

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1 Maritime, occasionally looking over his shoulder to see what police were doing. He heard a second 2 ‘bang’ as he was leaving with the others. At one point as he walked up Maritime toward 7th Street,

3 just as he turned to his left to look at the police, Mr. Bohning was struck in five places with

4 projectiles: his nose, his right pinkie, and three places on his back.27 After he was struck, he

5 continued walking away from police, stopping occasionally for medical treatment. He reached 7th

6 Street approximately one half hour after being struck by projectiles. The protestors gathered at 7th

7 Street mutually agreed to walk to downtown Oakland, and Mr. Bohning joined the group walking to 8 the Federal Building.28 After spending some time at the Federal Building with the protestors, Mr.

9 Bohning decided to leave to get medical treatment, and he then traveled to Alta Bates and was seen in

10 the emergency room where his wounds were cleaned and he was given new Band-Aids.29

11

2. Jennifer Hanson

Ms. Hanson took BART to the West Oakland station. She then got a ride with a car pool over 12

to the East APL gate, arriving about 7:00 a.m. After a few minutes, she walked to the West APL 13

gate, joined friends in a picket line for about 15 or 20 minutes and then moved to the side of the street 14
in response to a dispersal order. After watching events for some time, Ms. Hanson saw police 15
motorcycles approaching, so she moved west on Middle Harbor Road away from police. Shortly 16
thereafter, Ms. Hanson observed police firing on the crowd.30 She continued west until, about 45 17
minutes to an hour after she’d first arrived, she reached the intersection of Middle Harbor Road and 18
Maritime, where she stopped to look for friends. After a few minutes, Ms. Hanson observed police
19 moving closer again, saw some people moving up Maritime and others moving up Middle Harbor,

20 and she began to walk up Maritime Street. Shortly after doing so, the police fired at the crowd

21 again.31 . She was in the middle of the crowd when she was hit in the back of her upper right arm

22 with a projectile.32 After being hit, Ms. Hanson continued to walk up Maritime, stopping

23 occasionally to speak with others, until she left the Port area. Police continued to follow at some

24 distance behind the crowd. Ms. Hanson walked to the BART station and found a ride back to San

25

26 27
28
27 29
30
28 31
32

Bohning Dep. 50:1-15; 54:19- 55:1; 56:21 – 57:16; 58:5-11; 60:19 – 61:1; 63:20 – 64:8 (Ex. C) Bohning Dep. 71:13-25; 88:5 – 89:3; 94:6-12; 99:6-23 (Ex. C) Bohning Dep. 111:16 - 115:15 (Ex. C) Hanson Dep. 15:1-6; 16:18 - 17:5; 17:12-24; 20:5-21:7; 37:14 - 38:20 (Ex. D) Hanson Dep. 43:23 - 44:11; 52:10-21; 54:15-20; 56:25 – 57:25 (Ex. D) Hanson Dep. 43:23 - 44:11; 52:10-21; 54:15-20; 56:25 – 57:25 (Ex. D)

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1 Francisco. She self-treated with an ice pack for two days.33

2

3 E. Defendants' Response

4

1. East APL: Consistent with the Ops Plan, OPD did not engage in any dispersal orders or

5 use of force when it encountered demonstrators at this Gate.

6

2. West APL: Even though the first contingent of OPD officers arrived at the next Gate

7 when it was still dark outside, they found the Gate blocked by a group of protestors and saw that

8 truck traffic was backing up. After approximately an hour, Deputy Chief Haw and Captain Yee
9 decided that it was necessary to disperse the large crowd to re-open the Main Gate and public
10 roadway to truck traffic. Capt. Yee, therefore, broadcast two dispersal orders to the crowd, and
11 people willing to stop blocking traffic were allowed to walk both east through the police lines and west. Only after people remained beyond the announced time limits did the skirmish line attempt to
12 move them by pushing with batons. When officers attempted to move the protestors with direct
13 physical force, however, they were kicked, pushed and hit with protest signs. The officers had to
14 physically push and jab protestors with batons just to get a single truck (a Tyson Chicken truck)
15 through the West APL Gate.34
16 Consequently, the officers had to withdraw and wait for additional officers to arrive. In the
17 meantime, the crowd increased dramatically as hundreds of additional demonstrators arrived, and
18 truck and vehicle traffic coming into the Port was brought to a virtual standstill. A large heavy can
19 was positioned in the roadway, loaded with wood and set afire. Demonstrators began climbing onto
20 the trucks that were blocked on the roadway and some threw objects at the police. In an effort to
21 avoid further physical confrontations between the crowd and the skirmish line, Deputy Chief Haw
22 decided to disperse the crowd with less lethal projectiles. Bean bags and stinger grenades were
23 briefly deployed, and the crowd immediately moved west, away from the area. OPD stopped all uses
24 of force and then moved forward, securing that area of the roadway now cleared of demonstrators.
25 All of the trucks that had been blocked moved forward.35 None of the plaintiffs complain that they

26

27
33
28 34
35

Hanson Dep. 58:1 - 59:2; 60:17 – 61:7; 69:12 – 70:17 (Ex. D) Yee Dec. Kozicki Dec.

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1 were injured by less lethal projectiles at the West APL Gate. Plaintiff Coles alleges she was jabbed

2 by an unknown officer with a baton at this location. The Tango Teams were not present at the West

3 APL Gate at the time the officers pushed and jabbed the protestors with batons to clear a path for the

4 Tyson Chicken truck.36

5

3. East SSA: As soon as OPD stopped pushing the crowd west, the demonstrators re-

6 assembled at the next truck gate and once again blocked the entrance to the Gate and all truck traffic

7 on Middle Harbor Road in front of the Gate. After observing the crowd at the East SSA Gate for 10-

8 15 minutes, Capt. Yee broadcast two dispersal orders, approximately two minutes apart, from the
9 public address system of an OPD vehicle. Some people left the area but a large crowd remained
10 positioned across Middle Harbor Road. Even when the line of motorcycle-mounted officers moved
11 up in close proximity to the crowd they still refused to move, once again raising the issue of a physical confrontation between the officers and members of the crowd.37
12 After two dispersal orders and the approach of the police skirmish line failed to disperse the
13 crowd assembled at the East SSA gate, Capt. Yee authorized the Red Tango Team to use less lethal
14 munitions to attempt to disperse the crowd, and Tango Team officers were instructed to target only
15 aggressive or non-compliant protestors. Only the Red Tango Team was present at the East SSA Gate
16 when less lethal was deployed there. 38 It was only when Tango Team members fired their less lethal
17 impact weapons that people left the area and stopped blocking traffic at the SSA East Gate.39
18 With the approval of Deputy Chief Haw, Lt. Kozicki also instructed the motorcycle officers to
19 use the motorcycle BUMP technique to disperse individuals in accordance with the Special Order
20 issued in January 2003 that permitted this dispersal technique. No officer was authorized to use the
21 BUMP except on the command of the command staff, as relayed to the officers by me, and no officer
22 used the BUMP except on proper command. Plaintiff Coles alleges she was bumped by the
23 motorcycle of Defendant Nichelini and that she was struck in the face by a less lethal projectile fired
24 by Defendant Delrosario at this location. Plaintiff Smith alleges he was struck in the left hand with a
25

26 36

Kozicki Dec.

37
27 38

Kozicki Dec. Yee Dec.; Tracey Dec. Red Tango Team member Romans never fired less lethal projectiles at any location, and

Officer Knight fired projectiles only at the intersection of 7th and Maritime. Tracey Dec.

28 39

Kozicki Dec.

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1 projectile, fired by an unknown officer at this site

2

4. West SSA: Officers attempted a mass simultaneous arrest of protestors blocking this

3 Gate, but protestors generally ran away rather than submit to arrest. At both the West SSA Gate

4 (where Middle Harbor and Maritime intersected) and then at Maritime and 7th Street the crowd re-

5 assembled and blocked traffic. The skirmish line would approach the crowd and stop. The crowd

6 would refuse to leave. A dispersal order would be broadcast by use of a PA to the crowd by Captain

7 Yee. The crowd would still refuse to leave. The skirmish line would again approach the crowd, 8 which would not move until less lethal impact weapons were used.40 None of the Coles plaintiffs

9 contend they were injured at the West SSA Gate.

10

5. Maritime: Lt. Kozicki's MFF was assigned to continue to disperse the crowd up Maritime

between the West SSA Gate and the intersection of 7th and Maritime. On three occasions, the line 11

stopped in order to allow demonstrators an opportunity to leave, but each time the protestors 12

regrouped and blocked Maritime Street. Members of the crowd continued to throw objects at the 13

officers. On one occasion a “Kryptonite” bicycle lock and steel cable weighing approximately four 14

pounds was thrown at the knees of Officer R. Race, and a large rock was thrown at the line of motor 15
officers. Lt. Kozicki then requested and received permission from Captain Yee to have Tango Team 16
officers deploy .37 mm wooden dowel projectiles. He reinforced the manufacturers' instructions with 17
Sergeant Tolleson that the rounds be “skipped” off the ground, and every round he saw deployed was
18 skipped off the pavement.41

19

The demonstrators ultimately reassembled at 7th and Maritime, blocking that intersection.

20 After dispersal orders failed to disperse the crowd, the Red Tango Team was ordered to discharge

21 less lethal projectiles. None of the plaintiffs have any complaints about the use of force at 7th and

22 Maritime. When the protesters announced they were going to leave the Port and march on City Hall,

23 OPD motorcycle officers facilitated the march through city streets by providing traffic control as the

24 protest no longer presented a clear and present danger to the Bay Bridge transportation system.42

25

Chief Word was not present at the Port that day. Deputy Chief Haw and Capt. Yee were the

26

27
40
28 41
42

Kozicki Dec. Kozicki Dec. Kozicki Dec.

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1 two highest-ranking command officers at the scene, Capt. Yee being the on-scene Incident

2 Commander. Lieutenant Poulson was the East Sector Commander, Lt. Jordan was the West Sector

3 Commander and Lt. Kozicki was the Mobile Field Force Commander. Sgt. Tracey was in charge of

4 the Red Tango Team, and Sgt. Tolleson was in charge of the Blue Tango Team.43 The two Tango

5 Teams were comprised of the following defendants: Red Tango Team: Lt. (then Sgt.) Ed Tracey,

6 Oerlemans, Delrosario, Gonzales, Holmgren, Gutierrez, Romans and Knight. Blue Tango Team: 7 Sgt. Gary Tolleson, Campbell, Moore, Doolittle, Steinberger, Uu, Worden, Saunders and Fukuda.44

8 Sgt. Hogenmiller was stationed at the command post located in the railway yard across from the East

9 APL Gate on April 7, 2003, and had nothing to do with ordering the use of less lethal munitions.45

10 III. ARGUMENT

11 A.

FOURTH AMENDMENT SEIZURE: Plaintiffs Were Not “Seized” Under the Fourth Amendment

12 The Fourth Amendment protects against unreasonable searches and seizures. The TAC
13 alleges that defendants used unreasonable force against plaintiffs by firing less lethal projectiles at

14 plaintiffs, by bumping some plaintiffs with motorcycles and by striking one plaintiff with a baton;

15 that each of these uses of force caused a government termination of freedom of movement through

16 means intentionally applied; and that each use of force constituted a seizure. (TAC ¶¶ 18, 19, 20).

17 Plaintiffs further allege that these acts by defendants violated plaintiffs’ rights to be free from

18 unreasonable seizures under the Fourth Amendment. (TAC, ¶ 39 – first cause of action). However,

19 the undisputed facts show that plaintiffs Coles, Smith, Bohning and Hansen were not seized. Ms.

20 Coles was jabbed by a baton while she attempted to block a truck from entering the West APL gate.

21 At East SSA, Ms. Coles claims she was bumped by a motorcycle. In her report to her emergency

22 room doctor, Ms. Coles does not report any injury from or otherwise mention either incident46. At

23 East SSA, after lingering in the area despite having heard a dispersal order, and having been directed

24 to leave, she was struck in the left jaw and neck by a projectile. There is no evidence that police

25 made any attempt to arrest Ms. Coles or to otherwise stop her from leaving the Port after either the

26 27 43
44 45
28 46

Declaration of Rod Yee. Tracey Dec.; Tolleson Dec.; Yee Dec. Tolleson Dec.; Tracey Dec. See Fox Dec. Exhibit E

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1 jab, the bump, or the projectile strike. On the contrary, these facts show that OPD was attempting to

2 have Ms. Coles disperse from the Port, which she did, driving from the East SSA gate without further

3 incident.

4

Plaintiff Ron Smith walked down Maritime, spent some time at the East SSA gate, observed

5 police approaching, was struck with a projectile, then turned and walked out of the Port from the

6 direction he had entered. There is no evidence that police made any attempt to arrest Mr. Smith or to

7 otherwise stop him from leaving the Port. Again, to the contrary, the facts demonstrate that police

8 were dispersing Mr. Smith from the Port.

9

Similarly, after spending differing amounts of time at differing Port locations, both plaintiffs

10 Jennifer Hanson and Scott Bohning were struck with projectiles as they moved up Maritime to exit

11 the Port. Neither was arrested or otherwise stopped by police. In fact, both Hanson and Bohning

state that they understood police were attempting to clear the Port of protestors. These facts do not 12

constitute a seizure under the Fourth Amendment. 13

1. Use of Force Alone Does Not Implicate the Fourth Amendment 14
Although force was used by the police at the Port, not every claim of excessive force by 15
government actors falls within the ambit of the Fourth Amendment. The Fourth Amendment’s 16
reasonableness standard governs the analysis of use of force only where force occurs during a search 17
or seizure. Graham v. Conner, (1989) 490 U.S. 386, 395. Where no search and seizure is involved,
18 the proper framework for excessive force claims is under the Fourteenth Amendment’s substantive

19 due process clause. County of Sacramento v. Lewis, 523 U.S. 833 (1998). This being the case, the

20 fact that force was used in a given situation neither proves nor disproves that a seizure has occurred.

21

2. Force Used to Disperse is NOT a Seizure

22

The uncontested facts here show that the use of force against Coles, Smith, Bohning and

23 Hansen was intended to disperse these plaintiffs. When force is used to move someone away, it is

24 not ordinarily referred to as a seizure. In fact, pushing someone away is usually considered the

25 opposite of seizing them. While the concept of seizure is subject to judicial interpretation, the

26 Supreme Court has recognized the relevance of the ordinary meaning of words, Lyng v. Northwest

27 Indian Cemetery (1988) 485 U.S. 439, 469 fnt. 4, and the dangers of stretching constitutional terms

28 beyond their meaning California v. Hodari D. (1991) 499 U.S. 621, 627, it is not reasonable to

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1 expand the meaning of seizure to encompass its opposite. Hodari ??

2

3. Plaintiffs Were Always ‘Free to Leave’

3

Plaintiffs argue that they were not “free to leave” the Port because they were “briefly stopped

4 . . by a police projectile . . .” 47 This argument attempts to equate the use of force with being stopped,

5 and thereby ‘seized’, but, as pointed out above, the fact that force was used is not determinative of

6 whether or not a seizure has occurred. (See, for example, Ingraham v. Wright, (1977) 430 U.S. 651,

7 674, nt. 32, wherein the use of force – paddling of school children – did not implicate Fourth 8 Amendment protections; and Martinez v. Nygaard, (9th Cir. 1987) 831 F2d 822, 826, wherein a
9 worker who was momentarily grabbed then released by an immigration agent was not seized. See
10 also, Jones v. Wellham, (1997) 104 F.3d 620). The evidence here shows only that plaintiffs were
11 struck with projectiles, not that they were stopped or seized as a result. Plaintiffs further argue they were not “‘free to leave’ in whatever direction, speed, or manner”
12 each would have chosen because of police efforts to disperse them by moving plaintiffs “in a single
13 direction” out of the Port, and that defendants thereby took away each plaintiff’s “freedom of
14 movement”.48 This argument references this Court’s April 27, 2005 Order denying defendants’
15 motion to dismiss on the same Fourth Amendment issue, which found plaintiffs’ allegations that
16 “Defendants allegedly left Plaintiffs with only one available path by which to leave the scene and
17 applied physical force to ensure that Plaintiffs followed that path, [and] Defendants’ use of force
18 against Plaintiffs allegedly continued even after Plaintiffs left the protest area” were sufficient to
19 implicate the Fourth Amendment.”49 Obviously there is no constitutional requirement that 20
demonstrators be free to leave a demonstration in whatever direction, speed or manner they choose. 21 If that were true, then police dispersal orders would themselves be per se unconstitutional. As this 22 Court suggested at footnote 5 of its above-referenced Order, police may constitutionally direct
23 pedestrian and vehicle traffic despite such direction partially terminating an individual’s freedom of
24 movement.50
25

26

47
27 48
49
28 50

See Plaintiffs’ Responses to Requests for Admissions and Interrogatories, Fox Dec., Exhts. ____ Ibid. April 27, 2005 Order Denying Motion to Dismiss, 10:24-27, Fox Dec., Ex. L See also, Argument at B.2.a. and B.2.b. and cases cited therein recognizing the government interest in

maintaining order on public streets and using force to do so.

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1

Whether the directives of police so curtail an individual’s freedom of movement as to

2 constitute a seizure is best analyzed under the seizure test described in United States v. Mendenhall

3 (1980) 446 U.S. 544, 554: “a person has been "seized" within the meaning of the Fourth Amendment

4 only if, in view of all of the circumstances surrounding the incident, a reasonable person would have

5 believed that he was not free to leave.” The facts here show not only that plaintiffs Coles, Smith,

6 Bohning and Hansen were free to leave the Port throughout the incident, but that police wanted them

7 to leave, used force for the specific purpose of getting them to leave the Port, and, at least as to

8 Bohning and Hansen, plaintiffs knew that police dispersal tactics were aimed at making them leave.

9 A reasonable person in these circumstances would certainly understand that they were free to go.

10

Plaintiffs’ reliance on the fact that police left them only a “single path” to leave by is not

11 determinative here. First, the Port was chosen by plaintiffs as an appropriate protest site. The Port

has only two entrances, via 7th Street to the north and via Middle Harbor Road to the south. A police 12

skirmish line necessarily moves in one direction, in this case, towards the north. While police were 13

south of the Middle Harbor/Maritime intersection, protestors, including Ms. Coles and Mr. Smith, 14

had two routes to exit by – north along either Middle Harbor or Maritime. When the police line 15

moved north of the intersection and onto Maritime, there was a single exit path, not by police choice, 16
but because of the physical layout of the Port.51 Nor does the evidence support an allegation that
17 these plaintiffs were subjected to continuing force even after they left the Port area.

18 As there is no evidence that these plaintiffs were in any way ‘seized’, their Fourth

19 Amendment claim must fail.

20 B. QUALIFIED IMMUNITY:

21

1. The Defendants Who Did Not Fire or Authorize the Use of Less Lethal

22

Projectiles Are Entitled to Qualified Immunity on All Claims

23

The § 1983 plaintiff cannot discharge his or her obligation to prove the individual liability of

24 each defendant by lumping all defendants together and charging the “collective guilt” of all

25 defendants as an undifferentiated group. Leer v. Murphy (9th Cir. 1988), supra 844 F.2d 628, 633-

26 634. Nor can a plaintiff state a § 1983 claim by asserting the rights of others. San Pedro Hotel Co. v.

27 City of Los Angeles, 159 F.3d 470, 479 (9th Cir. 1998); Moreland v. Las Vegas Metro. Police Dept.,

28

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1 159 F.3d 365, 369 (9th Cir. 1998). In Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996), the Ninth

2 Circuit rejected a "team effort" theory of liability under § 1983 and required "integral participation"

3 by each officer as a predicate to liability, explaining that:

4

The underlying problem with a "team effort" theory is that it is an improper alternative

grounds [sic] for liability. It removes individual liability as the issue and allows a jury

5

to find a defendant liable on the ground that even if the defendant had no role in the

6

unlawful conduct, he would nonetheless be guilty if the conduct was the result of a "team effort." … In essence, the "team effort" standard allows the jury to lump all the

7

defendants together, rather than require it to base each individual's liability on his own

conduct. Id. at 295.

8

Accordingly, the following defendants are entitled to qualified immunity as non-participants 9
in the use of force against the following plaintiffs: 10
1. Ms. Coles: All defendants except for Officers Nichelini and Delrosario.52 Neither of 11
the Tango Teams (Tracey, Oerlemans, Gonzales, Holmgren, Gutierrez, Romans, Knight, Tolleson,

12 Campbell, Moore, Doolittle, Steinberger, Uu, Worden, Saunders and Fukuda) was present when Ms.

13 Coles was allegedly jabbed by a baton at the East APL Gate. Defendants Low, Fisher and Wallace

14 are alleged to have used force against a different plaintiff.

15

2. Mr. Smith: All members of the Blue Tango Team (Tolleson, Campbell, Moore,

16 Doolittle, Steinberger, Uu, Worden, Saunders and Fukuda), who were not present at the East SSA

17 Gate when less lethal was used, and Nichelini, Low, Fisher and Wallace, who are alleged to have

18 used force against different plaintiffs.

19

3. Ms. Hanson and Mr. Bohning: All members of the Red Tango Team (Tracey,

20 Oerlemans, Delrosario, Gonzales, Holmgren, Gutierrez, Romans and Knight), who did not use less

21 lethal on Maritime Street, and Nichelini, Low, Fisher and Wallace, who are alleged to have used

22 force against other plaintiffs.

23

4. Ms. Parkinson: All defendants except for Low, Fisher and Wallace, as to the claims

24 that these officers unlawfully arrested her.

25

2. Officers Who Fired Less Lethal or used the BUMP and the Command Staff Are

Entitled to Qualified Immunity on First Amendment and Excessive Force Claims 26

27 51

See Port Map, Fox Dec. Ex. K

52

Officer Nichelini is alleged to have bumped Ms. Coles with her motorcycle, and Officer Delrosario is the Red

28 Tango Team officer alleged to have fired the projectile that struck her at the East SSA Gate. These defendants are

entitled to qualified immunity on other grounds.

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1
In determining whether a defendant is entitled to qualified immunity, the threshold question is 2
whether the defendant committed an act that deprived the plaintiff of some right, privilege, or 3
immunity protected by the U.S. Constitution or the laws of the United States. Leer v. Murphy, supra, 4
844 F.2d at 632-633. If so, the courts then ask whether the constitutional right allegedly violated was
5 "clearly established." If it was not, the defendant is immune. Saucier v. Katz, 533 U.S. 194, 201
6 (2001). The plaintiff bears the burden of showing "that the particular facts of his case support a claim

7 of clearly established right." Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985).

8

If the court decides that the defendant violated a clearly established right, it must then ask

9 whether a reasonable officer would have believed that his conduct was clearly unlawful. "[I]f the law

10 did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based

11 on qualified immunity is appropriate." Saucier, supra, 533 U.S. at 202. "[T]o deny summary

12 judgment any time a material issue of fact remains on the excessive force claim -- could undermine

13 the goal of qualified immunity to 'avoid excessive disruption of government and permit the resolution

14 of many insubstantial claims on summary judgment.' [Citation]." Id. at 202.

15

a. The Law Was Not Clearly Established that Defendants Could Not Declare an

16

Unlawful Assembly and Issue Multiple Dispersal Orders

17

"'Clearly established'" for purposes of qualified immunity means that the contours of the right

18 must be sufficiently clear that a reasonable official would understand that what he is doing violates

19 that right." Wilson v. Layne, 526 U.S. 603, 614-615 (1999). While public streets often are
20 considered public fora where the government's right to restrict free expression is limited, the Supreme
21 Court has explained that "[p]ublicly owned or operated property does not become a "public forum"
simply because members of the public are permitted to come and go at will. United States v. Grace, 22
(1983) 461 U.S. 171, 177. "We have regularly rejected the assertion that people who wish 'to 23
propagandize protests or views have a constitutional right to do so whenever and however and 24
wherever they please.'" Id. at 177-178. In Adderley v. Florida, (1966) 385 U.S. 39, the Court held 25
that the arrests of civil rights protesters who blocked a nonpublic jail driveway did not violate the 26
First Amendment where sheriff's transport vehicles and commercial vehicles servicing the jail were 27
prevented from using the driveway. One serviceman had to wait inside the jail because the protestors 28
were sitting around his truck, and the Sheriff testified that the time the protesters were there was

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1 generally a very busy time for using the particular driveway in question. Id. at 46. See also, United

2 States v. Kokinda, (1990) 497 U.S. 720, wherein the Supreme Court held that a sidewalk between a

3 parking lot and the front door to a post office was not a public forum and that a ban on solicitation on

4 such sidewalks was reasonable due to the disruption solicitation caused. Id, at 728.

5

Of crucial importance to the strength of the government's right to restrict First Amendment

6 expression is an assessment of the normal activities that occur at the demonstration site:

7

The nature of a place, 'the pattern of its normal activities, dictate the kinds of

regulations of time, place, and manner that are reasonable. Although a silent vigil may

8

not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131 (1966),

making a speech in the reading room almost certainly would. That same speech should

9

be perfectly appropriate in a park. The crucial question is whether the manner of

10

expression is basically incompatible with the normal activity of a particular place at a particular time.

11 Grayned v. City of Rockford (1972) 408 U.S. 104, 116.
12

13

Only one semicircular route traverses the Port of Oakland, and that route normally is used not

14 by private vehicular traffic, but by the approximately 8,000 heavy trucks that daily bring goods into

15 and out of the Port of Oakland. Due to the limited public road access and the fact that there are only

16 four gates by which trucks can access the APL and SSA shipping lines, blockage of the gates or the

17 road can easily shut down the entire Port. The protestors intended to do just that, and they selected a

18 day and time when the Port experiences the heaviest truck traffic. Moreover, there are no sidewalks

19 or other public areas on which people may congregate other than the public street. The virtual shut-

20 down of truck traffic through the Port, with the concomitant danger that posed to the Bay Bridge 21 transportation system, violated numerous traffic and penal laws.53

22

23

24

53

These laws include California Vehicle Code §§ 21954, requiring pedestrians walking on a roadway to yield the

right-of-way to vehicles; 21956, prohibiting pedestrians from walking on roadways outside of business or residential

districts except on the left-hand edge of the roadway; 2800, making it unlawful to refuse to obey a peace officer enforcing
25 the Vehicle Code; Penal Code §§ 370, 372 and 647c which make it a misdemeanor to obstruct the free use of property or

streets; Penal Code § 602.1, which makes it unlawful to interfere with a lawful business; Penal Code § 407, which defines
26 an unlawful assembly as "assembling together to do an unlawful act; and Penal Code §§ 409 and 416, which make it a

misdemeanor to fail to disperse after a warning. The demonstrators' conduct also violated Oakland Municipal Ordinances
27 § 12.44.010 which states that persons blocking the free passage of any street or sidewalk shall disperse when directed to

do so by a police officer, and § 12.44.202, which declares that it is unlawful "to conduct, take part in or address a public
28 meeting" held on any public property within the City except for certain "free speech zones" near City Hall, or when

demonstrators obtain a permit to block City streets. A participant in a lawful assembly which becomes unlawful has an

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1

Further, OPD determined that the protestors could be allowed to demonstrate at the East APL

2 Gate without entirely disrupting normal Port activity, and consequently made plans to allow the

3 demonstrators to assemble there. Thus, the protestors had an alternative avenue of expression at the

4 Port that would not result in shutting down the Port. Oakland Municipal Ordinances also provided

5 alternatives by establishing free speech zones near City Hall and a permit process for protestors who

6 wished to demonstrate on City streets outside the free speech zone locations or hours.

7

A demonstration aimed at shutting down the Port is "basically incompatible with the normal

8 activity" of the Port. In fact, in International Society for Krishna Consciousness, Inc. v. Lee (1992)

9 505 U.S. 672, 678, the Supreme Court concluded that airport terminals operated by the New York

10 City Port Authority were nonpublic for a, based to a great degree on the fact that the primary purpose

11 of airport terminals was to facilitate transportation. Id, at 678, 680-683. The law was not clearly

established that the First Amendment prevented the OPD from declaring the Port demonstration an 12
unlawful assembly and issuing multiple dispersal orders54 under these circumstances. To the 13

contrary, the Supreme Court has emphatically upheld the right of municipalities to maintain the 14

integrity and safety of public thoroughfares. In Cox v. New Hampshire (1941) 312 U.S. 569, the 15
Court affirmed the convictions of Jehovah's Witnesses who interfered with normal sidewalk traffic in 16
various business districts in the city by marching along the sidewalks in single file, carrying signs and 17
handing out leaflets:
18 The authority of a municipality to impose regulations in order to assure the safety and

19

convenience of the people in the use of public highways has never been regarded as

inconsistent with civil liberties but rather as one of the means of safeguarding the good

20

order upon which they ultimately depend. The control of travel on the streets of cities

21

is the most familiar illustration of this recognition of social need. Where a restriction

of the use of highways in that relation is designed to promote the public convenience

22

in the interest of all, it cannot be disregarded by the attempted exercise of some civil

right which in other circumstances would be entitled to protection. One would not be

23

24 immediate duty to disassociate himself from the group; remaining at the scene of an unlawful assembly makes one a

guilty participant. In re Wagner (1981) 119 Cal.App.3d 90, 103-104.
25

54

The Ninth Circuit has not held that dispersal orders must warn protestors that force will be used if they do not

26 disperse as plaintiffs have previously asserted. In Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272, 1284, the Court

stated "[w]e do not hold, however, that warnings are required whenever less than deadly force is employed. Rather, we
27 simply determine that such warnings should be given, when feasible, if the use of force may result in serious injury, and

that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test." In
28 this case, moreover, as noted above, every plaintiff was aware before they were struck, that the police were using less

lethal to disperse demonstrators.

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1

justified in ignoring the familiar red traffic light because he thought it his religious

duty to disobey the municipal command or sought by that means to direct public

2

attention to an announcement of his opinions.

3 Id. at 574. See also, Colten v. Kentucky (1972) 407 U.S. 104, 109.

4 In Cox v. Louisiana, 379 U.S. 536 (1965), the Court rejected the argument that those who
5 chose to express their views by marching on city streets enjoy the same First Amendment protection
6 as those who express their views through speech alone. Id. at 556. The Court further stated:

7 The rights of free speech and assembly, while fundamental in our democratic society,

8

still do not mean that everyone with opinions or beliefs to express may address a

group at any public place and at any time. The constitutional guarantee of liberty

9

implies the existence of an organized society maintaining public order, without which

10

liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order.

11

A restriction in that relation, designed to promote the public convenience in the

interest of all, and not susceptible to abuses of discriminatory application, cannot be

12

disregarded by the attempted exercise of some civil right which, in other

circumstances, would be entitled to protection. One would not be justified in ignoring

13

the familiar red light because this was thought to be a means of social protest. Nor

14

could one, contrary to traffic regulations, insist upon a street meeting in the middle of

Times Square at the rush hour as a form of freedom of speech or assembly.

15

Governmental authorities have the duty and responsibility to keep their streets open

and available for movement. 16

17 Id. at 554-555.

18 In ACORN v. City of Phoenix (9th Cir. 1986) 798 F.2d 1260, 1267, the Ninth Circuit observed
19 that while pedestrian are ordinarily entitled to use public sidewalks or public parks, the same was
20 "obviously not true of streets continually filled with pulsing vehicle traffic. Consequently, more so
21 than with sidewalks or parks, courts have recognized a greater governmental interest in regulating the
22 use of city streets. For example, cities may constitutionally prohibit parades or demonstrations upon
23 any public streets without a special permit from city authorities…." The Court further noted that
24 "[t]he orderly flow of motorized traffic is a major concern in congested urban areas, particularly
25 because an obstruction or delay in traffic at one point along a traffic artery results in delays and
26 backups far back down the roadway." Id. at 1268.
27

28

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1

b. The Law Was Not Clearly Established that Defendants Could Not Use the BUMP or

Less Lethal 2

3

As of April 7, 2003 (and to date) no court had held that the BUMP or less lethal munitions

4 could not be used for crowd control purposes. Nor was there a consensus of cases of persuasive authority that made it clear that their use was unlawful. One case, Deorle v. Rutherford (9th Cir.
5 2003) 272 F.3d 1272,55 discussed the use of bean bags prior to April 2003, but that case that did not
6
involve the use of such weapons for crowd control. In Deorle, a deputy sheriff fired a less lethal 7
beanbag round without any warning into the face of an emotionally disturbed man who had not been 8
violent, whose dress did not allow him to secrete weapons on his body, who had generally obeyed all 9
instructions given to him by various peace officers and who was on his own property. Id. at 1275. 10
Central to the Court's determination was an analysis of the governmental interests at stake, and the 11
Court found that, under these circumstances, the use of a beanbag round without warning against an
12 unarmed, emotionally disturbed, compliant man who posed no immediate threat to the officers or
13 others was not a reasonable use of force; hence, the officer was not entitled to qualified immunity.
14 Id. at 1283-1284. The diminished capacity of the plaintiff in Deorle was also a significant factor:

15 "Where it is or should be apparent to the officers that the individual involved is emotionally

16 disturbed, that is a factor that must be considered in determining . . . the reasonableness of the force

17 employed." Id., at 1283.

18

The balance has been struck quite differently in crowd control situations. In Forrester v. City

19 of San Diego, 25 F.3d 804 (9th Cir. 1994), San Diego police learned that Operation Rescue planned

20 to mount several anti-abortion demonstrations in the City. Aware that Operation Rescue tactics used

21 in other demonstrations included trespass on clinic property, physically blocking access to the clinic

22 and preventing patients, physicians and staff from entering the clinic, the Chief adopted a policy for

23 dispersing demonstrators through the use pain compliance, specifically the application of Nonchakus

24 (two sticks of wood, connected at one end, used to grip the wrist) or other pain compliance and

25 pressure point holds. The demonstrators arrested had various injuries, including bruises, a pinched

26 nerve, and a broken wrist. Id. at 806-807.

27

28 55

The Court in Deorle , at 1280, also recognized that bean bags constitute a lower level of force than deadly force.

See also, Jeffers v. Gomez, 267 F.3d 895, 901. n.2 (9th Cir. 2001).

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1

The Court upheld the jury's verdict in favor of defendants, stating:

2

the city clearly had a legitimate interest in quickly dispersing and removing

lawbreakers with the least risk of injury to police and others. The arrestees were part

3

of a group of more than 100 protesters operating in an organized and concerted effort

4

to invade private property, obstruct business, and hinder law enforcement. Although many of these crimes were misdemeanors, the city's interest in preventing their

5

widespread occurrence was significant: 'The wholesale commission of common state-

law crimes creates dangers that are far from ordinary. Even in the context of political

6

protest, persistent, organized, premeditated lawlessness menaces in a unique way the

capacity of a State to maintain order and preserve the rights of its citizens.' [Quoting

7

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 287 (1993) (Kennedy, J.,

8

concurring).] The city had a substantial interest in preventing the organized

lawlessness conducted by the plaintiffs in this case, and the police were also justifiably

9

concerned about the risk of injury to the medical staff, patients of the clinic, and other

protesters. 10

11 Id. at 807.

12 Here, the demonstrators were engaged in an unlawful protest and had essentially shut down
13 the second largest port on the West Coast, threatening the Bay Bridge transportation system and
14 creating a serious public safety hazard. As in Alexandria Women's Health Clinic, Forrester and the
15 First Amendment cases cited above, OPD was concerned about the risk of harm to others and had a
16 substantial interest in preserving the rights of other citizens to go about their business in a safe
17 manner. Further, earlier efforts to disperse the crowd through direct physical contact and dispersal
18 orders had been unsuccessful. In addition, in crowd control circumstances, the law was not clearly
19 established that the use of force to disperse demonstrators constituted a seizure and was, thus, subject
20 to the reasonableness analysis of Graham, rather than the "shocks the conscience" standard of County
21 of Sacramento, as discussed above.

22

A review of cases dealing with less lethal munitions, even outside the crowd control context

23 shows there is no consensus of opinion regarding the application of qualified immunity. In Boyd v.

24 Benton County, 374 F.3d 773 (9th Cir. 2004), one of the officers executing a search warrant, tossed a

25 "flash-bang" device near the front door of a residence without looking. The device detonated,

26 injuring the plaintiff who was sleeping near the door. Id. at 777-778. The Court found that the use of

27 the device constituted excessive force because the officer knew that several people might be sleeping

28 in the residence. Id. at 779. Nonetheless, because plaintiff's right with respect to such devices was

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1 not clearly established, the officers were entitled to qualified immunity. Id. at 782-784.

2

c. The Officers' Conduct Was Objectively Reasonable as to Both the First Amendment

and Use of Force Issues

3

4

The Supreme Court has made it clear that qualified immunity is far-reaching. Saucier, supra,

at 533 U.S. at 202. The immunity protects “all but the plainly incompetent or those who knowingly 5

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). This test “allows ample room for 6

reasonable error” by the defendant. Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997). 7
See also, Act Up!/Portland v. Bagley, 988 F2d 868, 873 (1993). Here, OPD created written planning 8
guides for training officers on the MFF concept and in 2002 and early 2003, it provided extensive 9
training on the use of less lethal impact weapons to disperse crowds. Only specially trained Tango 10
Team officers were allowed to use less lethal under the direct supervision of a sergeant. The decision
11 on when to use less lethal for crowd dispersal purposes was delegated to the chief of police or his
12 assigned incident commander. On April 7, Tango Team officers used less lethal dispersal techniques

13 only upon the command of the Incident Commander. Under such circumstances, it must be

14 concluded that it was reasonable for the officers to believe their conduct was lawful.

15

In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), the Court held that officers implementing

16 policy are entitled to qualified immunity where no then-existing case law clearly established that the

17 particular policy was unconstitutional. See also, Dodd v. City of Norwich, 827 F.2d 1, 4 (2d Cir.

18 1987), cert. denied, 484 U.S. 1007 (1988) wherein the Court instructed the lower court to consider

19 whether the defendant was entitled to qualified immunity based on the fact that he was following the

20 policy and training of the police department. As the Supreme Court explained in Pierson v. Ray, 386

21 U.S. 547, 555 (1967)56, "[a] policeman's lot is not so unhappy that he must choose between being

22 charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted

23 in damages if he does."

24

d. The Same Principles Apply to the Command Staff

25

The same principles discussed above apply to the Command Staff. Moreover, several other

26

27 56

Even though the Supreme Court subsequently replaced Pierson's subjective "good-faith" qualified immunity

standard with an objective "reasonableness" inquiry, the principle that a peace officer who has probable cause to arrest
28 someone under a statute that a reasonable officer could believe is constitutional, will be immune from liability even if

the statute is later held to be unconstitutional. Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).

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1 law enforcement departments, including Seattle, San Diego, Alameda County and Contra Costa

2 County had adopted the MFF concept and the use of less lethal munitions for crowd control purposes.

3 March 2003 POST guidelines also recommended the use of less lethal for crowd control as did the

4 manufacturers of bean bags and wooden dowels. OPD had successfully used less lethal earlier in

5 2003 in two crowd control events. Under such circumstances, it cannot be said that no reasonable

6 officer in Capt. Yee's or Deputy Chief Haw's position would have concluded that it was unlawful to

7 order the Red Tango Team to use less lethal at the East SSA Gate on a limited basis against non-

8 dispersing individuals when the neither the approach of the skirmish line nor two dispersal orders had

9 succeeded in clearing the East SSA Gate.

10

As for Chief Word, he was not at the Port on April 7, and he is sued as a policy-maker for the

11 City. (TAC, ¶ 10.) Whether or not he was a policy-maker for the City, he could not make official

policy in his individual capacity. Supervisory liability will only be imposed against a supervisory 12

official in his individual capacity "for his own culpable action or inaction in the training, supervision, 13

or control of his subordinates, for his acquiescence in the constitutional deprivations of which the 14
complaint is made, or for conduct that showed a reckless or callous indifference to the rights of 15
others." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations omitted). 16
There is no evidence that would support liability against Chief Word in his individual capacity. See 17
Menotti v. City of Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005).
18 C. STATE LAW CLAIMS: The Individual Defendants Are Entitled to Immunity

19

Pursuant to California Government Code § 820.2

20

For the same reasons set forth above, defendants are immune from liability on the state law

21 claims pursuant to California Government Code § 820.2.57 In Coming Up, Inc. v. City and County of

22 San Francisco, 857 F.Supp. 711, 718 (N.D.Cal 1994), the Court briefly discussed, without deciding,

23 whether an immunity, comparable to the good faith immunity available in §1983 cases, existed for

24 state law claims. The Court noted there were numerous cases in which police officers had been

25 granted immunity pursuant to Gov. C. § 820.2, and it compared the language of § 820.2 to that in

26 Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) in which § 1983 qualified immunity

27

28 57 The Tort Claims Act immunities have been held to apply to the Unruh Act, Civil Code § 51 et seq., in addition to other
state tort actions. See Gates v. Superior Court (1995) 32 Cal.App.4th 48.
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1 protected “government officials performing discretionary functions.”

2

Other parallels have been drawn between § 820.2 and the parameters of § 1983 liability. In

3 Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 349 (1996) the Court noted that the test for

4 determining whether a homicide by a peace officer was justifiable, and thus immunized, was whether
5 the circumstances reasonably created a fear of death or serious bodily injury to an officer or to
6 another. It pointed to People v. Rivera, 8 Cal.App.4th 1000, 1007 (1992) noting that the court therein
7 applied a Fourth Amendment “reasonableness” analysis in finding that the use of an attack dog by a
8 police officer was justified because the officer “reasonably feared for his safety, and that of others in
9 the area.” The Court said: “The same is true of Government Code section 820.2, which provides
10 immunity from liability to public employees for their discretionary acts.” Ibid. (See also Edson v.
11 City of Anaheim, 63 Cal.App.4th 1269 (1998) - applying federal standards to state law unreasonable force claims.) Accordingly, for the same reasons the officers would be entitled to qualified immunity
12 under § 1983, they are entitled to the immunity provided by § 820.2 on plaintiffs’ state law claims.
13 IV. CONCLUSION
14 For all of the foregoing reasons, defendants respectfully submit that they are entitled to
15 summary judgment or, in the alternative, summary adjudication, on the Fourth Amendment claims of
16 Coles plaintiffs as there are no facts which support their claim that they were ‘seized’ by defendants.
17 Defendants further submit they are entitled to qualified immunity on the § 1983 claims and
18 discretionary immunity on the state law claims as the use of less lethal did not violate plaintiffs'
19 constitutional rights, the law was not clearly established, and the use of less lethal was objectively
20 reasonable under the circumstances.
21

22 Dated: November 3, 2005 23 24 25 26 27

BERTRAND, FOX & ELLIOT
/S/ By: ________________________________
Gregory M. Fox Arlene C. Helfrich Nancy Huneke Attorneys for Defendants

28

__________________________________________________________2_5_______________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION: COLES - File No. C-03-2961 TEH (JL)

 
 Case3:03-cv-02961 Document154 Filed12/06/05 Page1 of 4

United States District Court For the Northern District of California

1

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

5 SRI LOUISE COLES, et al.,

6

Plaintiffs,

7

v.

8 CITY OF OAKLAND, et al.,

9

Defendants.

10

NO. C03-2961 TEH
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY ADJUDICATION

11 LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE
12 UNION, et al.,

13

Plaintiffs,

14

v.

15 CITY OF OAKLAND, et al.,

16

Defendants.

17

NO. C03-2962 TEH

18

These matters come before the Court on three motions: (1) Defendants’ motion for

19 summary judgment against the remaining individual plaintiffs in Local 10; (2) Plaintiffs’

20 motion for partial summary adjudication in Coles; and (3) Defendants’ motion for partial

21 summary adjudication in Coles. After carefully considering the parties’ written arguments

22 and the record in this case, the Court has determined that oral argument is only necessary on

23 the limited issues of whether or not it was clearly established that the Fourth Amendment

24 applies to the circumstances of this case and, therefore, whether or not Defendants are

25 entitled to qualified immunity on Plaintiffs’ Fourth Amendment claims. On all other issues,

26 the Court now rules as follows:

27

1. The Local 10 Defendants’ motion for summary adjudication of Plaintiffs’ privacy

28 claim is GRANTED as unopposed.

Case3:03-cv-02961 Document154 Filed12/06/05 Page2 of 4

United States District Court For the Northern District of California

1

2. The Local 10 Defendants’ motion for summary adjudication of Plaintiffs’ First

2 Amendment claim is DENIED. As explained in the Court’s order granting in part and 3 denying in part the Local 10 Defendants’ motion for summary judgment against Plaintiff

4 Local 10, International Longshore and Warehouse Union, disputed issues of material fact

5 remain on the issue of whether the union member plaintiffs’ First Amendment rights were

6 violated.1 Similarly, the Court cannot say that it would be impossible for a reasonable jury to

7 find that Plaintiff Jack Heyman was arrested or subjected to force because of anti-union

8 animus.

9

3. The Coles Defendants’ motion for summary adjudication of Plaintiffs’ First

10 Amendment claims is DENIED. The Court cannot say that the evidence, when viewed in a

11 light most favorable to Plaintiffs, could not support a claim under the First Amendment. Nor

12 can the Court conclude that Defendants would be entitled to qualified immunity if Plaintiffs’

13 version of the facts is believed.

14

4. The Local 10 and Coles Defendants’ motions for summary adjudication of

15 Plaintiffs’ Fourth Amendment claims are GRANTED as unopposed as to individual

16 plaintiffs’ claims against those individual defendants who did not use or authorize the use of 17 force against those plaintiffs and who played no role in arresting those plaintiffs. The Coles

18 Plaintiffs specifically do not contest granting summary adjudication to Defendants Poulson,

19 Hogenmiller, Tracey, Oerlemans, Knight, Romans, Moore, and Fukuda. However, Plaintiffs

20 in both cases failed to identify any other defendants with specificity, and the parties are

21 therefore ordered to meet and confer and to file a stipulation and proposed order – one in 22 Coles and one in Local 10 – regarding which plaintiffs’ claims against which individual

23 defendants should be summarily adjudicated in Defendants’ favor on the basis of Plaintiffs’

24

25

26

1Defendants argue that the union member plaintiffs conceded their free speech claim when they admitted that they were not protesting or engaged in any protest activity.

27

However, as the Court explained in its order on Defendants’ motion against the union plaintiff, it remains disputed whether union members were engaged in expressive conduct

28

because it is not clear whether an observer would have reasonably understood that the union members were intending to communicate respect for the demonstration by standing by.

2

Case3:03-cv-02961 Document154 Filed12/06/05 Page3 of 4

United States District Court For the Northern District of California

1 non-opposition. These stipulations and proposed orders shall be filed no later than Monday,

2 December 12, 2005.

3

5. The Court finds that there are disputed issues of fact regarding whether the Fourth

4 Amendment governs Plaintiffs’ claims based on the use of force. It remains possible that a

5 jury could find that Plaintiffs were subjected to a Fourth Amendment “seizure,” the contours

6 of which the Court discussed in its order denying Defendants’ motion to dismiss Plaintiffs’

7 Fourth Amendment claims.2 Similarly, disputed facts prevent this Court from entering

8 summary adjudication for either Plaintiffs or Defendants on the question of whether, if

9 Plaintiffs were “seized,” Defendants’ use of force was objectively reasonable under the 10 circumstances. Accordingly, the Coles Plaintiffs’ motion for summary adjudication of their

11 Fourth Amendment claims, including their request that the Court find Defendants City of

12 Oakland, Word, Haw, and Yee liable under the Fourth Amendment and California Civil 13 Code section 52.1 as a matter of law, is DENIED. The Local 10 and Coles Defendants’

14 motions are also DENIED to the extent that they rely on these issues.

15

6. The Local 10 and Coles Defendants’ motions are also DENIED to the extent that

16 Defendants argue that they are entitled to qualified immunity if the Fourth Amendment

17 governs Plaintiffs’ claims. Whether it would have been clear to a reasonable officer that his

18 or her actions violated the Fourth Amendment, if it applies, depends on resolution of

19 disputed factual issues.

20

7. However, both of Defendants’ motions remain under submission on the Fourth

21 Amendment claims because the Court will entertain oral argument on the limited issues of

22 whether or not it was clearly established that the Fourth Amendment applies to the

23 circumstances of this case and, therefore, whether or not Defendants are entitled to qualified

24 immunity on Plaintiffs’ Fourth Amendment claims. The Court will hear such argument at the

25 scheduled hearing on December 12, 2005, at 10:00 AM.

26

27

2The Local 10 Defendants argue that the union member plaintiffs’ Fourth Amendment claims are distinct because, unlike the protestors, union members were allowed to stay at the

28

Port on the day of the protest. However, it is disputed whether union members were subjected to force because they were mistakenly considered to be participants in the protest.

3

Case3:03-cv-02961 Document154 Filed12/06/05 Page4 of 4

United States District Court For the Northern District of California

1

8. Because the Court finds that disputed facts remain regarding the reasonableness of

2 the use of force by Defendants, the Court also DENIES the Local 10 and Coles Defendants’

3 motions for summary adjudication of Plaintiffs’ state-law claims on the basis of immunity

4 under California Government Code section 820.2.

5

9. The Court need not rule on the parties’ objections to evidence because the Court

6 did not rely on any of the disputed evidence in reaching the above conclusions.

7

Finally, the Court notes the Local 10 Defendants’ contention, which has not been

8 disputed by Plaintiffs, that only seven individual plaintiffs remain in the Local 10 case:

9 Plaintiffs Jack Heyman, Allen Chapman, Christopher Clay, Ernest Evans, Billy Kepo’o,

10 Lawrence Massey, and Byron Moore. However, the parties do not appear to have filed any

11 documents resolving the claims of Plaintiffs John Nishinaga, Willow Rosenthal, and Cliff

12 Close. Nor do the parties appear to have filed stipulations and proposed orders dismissing

13 the individual officer defendants as to Plaintiffs Scott Fleming and Lawrence Menard, both

14 of whom accepted Rule 68 offers of judgment. Accordingly, IT IS FURTHER ORDERED

15 that the parties shall meet and confer on these issues prior to the December 12 hearing and

16 either (1) provide the Court at the December 12 hearing with docket numbers of the

17 identified documents if the Court is incorrect and such documents have already been filed or

18 (2) be prepared to report to the Court, under penalty of perjury, at the December 12 hearing

19 that the identified documents have been or will be filed on or before December 12, 2005, if

20 the Court is correct and such documents have not already been filed.

21

22 IT IS SO ORDERED.

23

24 Dated: 12/06/05 25

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

26

27

28

4

 
 Case3:03-cv-02961 Document185 Filed08/07/06 Page1 of 32

1 MICHAEL J. HADDAD (State Bar No. 189114) JULIA SHERWIN (State Bar No. 189268)
2 HADDAD & SHERWIN 505 Seventeenth Street
3 Oakland, CA 94612 Telephone: (510) 452-5500
4 Fax: (510) 452-5510

5 Attorneys for Plaintiffs

6 RICHARD M. PEARL (State Bar No. 46351) LAW OFFICES OF RICHARD M. PEARL
7 1816 5th Street Berkeley, CA 94710
8 Telephone: (510) 649-0810 Fax: (510) 548-5074
9 Co-counsel for Plaintiffs
10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 SRI LOUISE COLES, RON SMITH, JENNIFER HANSEN, DAVE TELLES, SCOTT BOHNING,
14 and LINDSAY PARKINSON, individually,

15

Plaintiffs,

16 vs.

17 CITY OF OAKLAND, et al.,

18

Defendants.

19 LOCAL 10, INTERNATIONAL LONGSHORE
20 AND WAREHOUSE UNION, et al.,

21 vs.

Plaintiffs,

22 CITY OF OAKLAND, et al.,

23 Defendants.

24 (No. C 03-2962 TEH (JL))

25

)

) No. C 03-2961 TEH (JL)

)

) Hon. Thelton E. Henderson

)

)

) PLAINTIFFS’ SECOND MOTION

) FOR AWARD OF REASONABLE

) ATTORNEYS’ FEES AND COSTS

) )

(RE: DAMAGES CLAIMS)

)

)

) ) ) )

Hearing Date: September 7, 2006 Time: 2:30 p.m. Hon: Thelton E. Henderson

)

)

)

)

)

)

)

26

27

28

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 1

Case3:03-cv-02961 Document185 Filed08/07/06 Page2 of 32

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that on September 7, 2006, at 2:30 p.m., Plaintiffs Jennifer

3 Hansen, Lindsay Parkinson, Scott Bohning, and Ron Smith, by and through their attorneys, will
4 move this Court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, for an award of
5 reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. §1988, California Civil Code §§
6
7 52(b)(3) and 52.1(h), and California Code of Civil Procedure § 1021.5 for their work in obtaining

8 the settlement of Plaintiffs’ remaining claims in this matter, including damages claims, pursuant to

9 the parties’ settlements requiring damages to be paid directly to them and attorney’s fees and costs

10 to be resolved separately. This motion is based on the Memorandum of Points and Authorities
11 that follows, the declarations of Michael Haddad, Julia Sherwin, Richard M. Pearl, and James C.
12 Sturdevant filed in support of the earlier Motion, the declarations of Michael Haddad, Julia
13 Sherwin, Richard M. Pearl, and Michael Bien filed in support of this motion, the declarations
14
15 referenced in Plaintiffs’August 29, 2005, and September 7, 2005 Notices of Reliance on

16 Declarations Filed in Related Case (Docket Nos. 106, 111), all documents and records filed in the

17 case, and on such further written and/or oral argument and evidence as may be submitted.

18

By this motion, Plaintiffs seek an award of reasonable attorneys’ fees and costs in the

19 amount of $ 485,844.67 for work on this matter not claimed in connection with the injunctive
20 relief settlement and related to their damages claims, and for bringing this motion.
21

22

23

24

25

26

27

28

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 1

Case3:03-cv-02961 Document185 Filed08/07/06 Page3 of 32

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

TABLE OF CONTENTS

Page 3

4 TABLE OF AUTHORITIES ---------------------------------------------------------------------------------ii

5 I. INTRODUCTION AND SUMMARY -------------------------------------------------------------1

6 II. STATEMENT OF FACTS AND PROCEEDINGS-----------------------------------------------2

7 III. 8 9

PLAINTIFFS ARE ENTITLED TO THEIR REASONABLE ATTORNEYS FEES AND COSTS --------------------------------------------------------------------------------------------------6
A. The Settlement Makes Plaintiffs the Prevailing Parties ---------------------------------7

10

B. Public Policy Strongly Favors a Fee Award ----------------------------------------------8

11
12
13 IV.
14
15
16

C. Special Circumstances -----------------------------------------------------------------------9 D. Plaintiffs Satisfy the Elements of California Code of Civil Procedure § 1021.5 ---10 PLAINTIFFS’ ATTORNEYS’ FEES ARE REASONABLE ---------------------------------12 A. A Summary of Plaintiffs’ Claim ----------------------------------------------------------13 B. Plaintiffs’ Lodestar Is Reasonable --------------------------------------------------------15

17

1. The Number of Hours Claimed Is Reasonable ---------------------------------15

18

2. Counsel’s Hourly Rates Are Reasonable----------------------------------------17

19

C. To Reflect the Legal Marketplace, a Modest Lodestar Enhancement

20

Is Appropriate -------------------------------------------------------------------------------20

21

1. The Substantial Risk Taken by Plaintiffs’ Counsel Supports

a Lodestar Enhancement ----------------------------------------------------------20

22

23

2. The Efficiency By Which the Settlement Was Achieved Supports a Lodestar Enhancement ------------------------------------------------------------23

24 3. The Public Interest Value Of Plaintiffs’ Lawsuit Warrants

25

Enhancement Of The Lodestar ---------------------------------------------------24

26 V. 27

CONCLUSION AND RELIEF REQUESTED --------------------------------------------------25

28

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) i

Case3:03-cv-02961 Document185 Filed08/07/06 Page4 of 32

1

TABLE OF AUTHORITIES

2 Cases

Page

3 Ackerley Communications, Inc. v. City of Salem, 752 F.2d 1394 (9th Cir. 1985) ----------------------8
4 Bankston v. State of Illinois, 60 F.3d 1249 (7th Cir. 1995)-----------------------------------------------16
5 Barrios v. California Interscholastic Federation,
6 277 F.3d 1128 (9th Cir. 2002) ---------------------------------------------------------------------------------7

7 Beasley v. Wells Fargo Bank, 235 Cal.App.3d 1407 8 1 Cal.Rptr.2d 459 (1992) --------------------------------------------------------------------------------12, 14

9 Beaty v. BET Holdings, Inc., 222 F.3d 607 (9th Cir. 2000)----------------------------------------------13

10 Blum v. Stenson, 465 U.S. 886 (1984)-----------------------------------------------------------------13, 17
11 Borunda v. City of Richmond, 885 F.2d 1384 (9th Cir. 1991) -------------------------------------------10
12 Chabner v. United of Omaha Life Ins. Co., 1999 U.S.Dist.LEXIS 16552 (N.D. Cal. 1999),
13 affirmed, 225 F.3d 1042 (9th Cir. 2000)--------------------------------------------------------------------23

14 Children’s Hosp. & Med. Ctr. v. Bonte, 97 Cal.App.4th 740 (2002)-------------------------------14, 17
15 Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984) 16 cert.denied, 471 U.S. 1054 (1985)--------------------------------------------------------------------------16

17 Collins v. Frank Jordan, 110 F.3d 1363 (9th Cir. 1996) -------------------------------------------------11
18 Crommie v. California Public Utilities Commission, 19 840 F.Supp. 719 (N.D. Cal. 1994) -----------------------------------------------------------------13, 22, 24 20 Democratic Party of State of Washington v. Riley, 388 F.3d 1281 (9th Cir. 2004)-------------------17

21 Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001)-----------------------------------------------------11
22 Edgerton v. State Personnel Board, 83 Cal.App.4th 1350 (2000)-------------------------------------- 25 23 Gates v. Gomez, 60 F.3d 525 (9th Cir. 1995)--------------------------------------------------------------15 24
Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803 (9th Cir. 2005) -------------6 25 26 Graham v. DaimlerChrysler Corp., 34 Cal.4th 556 (2004)---------------------------------------7, 21-22 27 Greene v. Dillingham Const., N.A., 101 Cal.App.4th 418 (2002)---------------------------------------23

28 Hanrahan v. Hampton, 446 U.S. 754 (1980)----------------------------------------------------------------7

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) ii

Case3:03-cv-02961 Document185 Filed08/07/06 Page5 of 32

1 Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989) ----------------------------------------10
2

3

Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185 (9th Cir. 2001), on remand, 276 F.3d 1125 (9th Cir. 2002)------------------------------------------------------------------11

4 Hensley v. Eckerhart, 461 U.S. 424
5 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) --------------------------------------------------------------6, 13, 15

6 Homes Not Jails v.City of San Francisco, N.D. Cal. No. C 99-4204 TEH -------------------19, 23-25
7 Horsford v. The Board of Trustees of California State University, 8 132 Cal.App.4th 359 (2005) ------------------------------------------------------------------------13, 20-21

9 Johnson v. Univ. College, 706 F.2d 1205 (11th Cir. 1983), cert. den., 104 S.Ct. 489 (1983)----------------------------------------------------------------------------- 17
10 11 Ketchum v. Moses, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377 (2001)------------------------ 13, 15, 20, 23
12 Lealao v. Beneficial California, 82 Cal.App.4th 19 (2000)----------------------------------------------24

13 Los Angeles Times Communications, LLC v. Los Angeles County Bd. of Supervisors, 112 Cal.App.4th 1313 (2003) --------------------------------------------------------------------------------10
14
15 Lucas v. White, 63 F.Supp.2d 1046 (N.D. Cal. 1999)----------------------------------------------------14

16 Maher v. Gagne, 448 U.S. 122 (1980) ----------------------------------------------------------------------6

17 Maloney v. City of Marietta, 822 F.2d 1023 (11th Cir. 1987) -------------------------------------------10

18 Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985)(en banc) ---------------------------------------------8
19 Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996) ---------------------------------------------13 20
New York Gas Light Club, Inc. v. Carey, 447 U.S. 54 (1980) ------------------------------------------10 21 22 Newman v. Piggie Park Enterprises, supra, 390 U.S. 400 (1968) ---------------------------------------8
23 Notrica v. State Compensation Ins. Fund, 70 Cal.App.4th 911, 83 Cal.Rptr.2d 89 (1999) ------------------------------------------------------------------------------------12
24 Oberfelder v. City of Petaluma, 2002 U.S.Dist.LEXIS 8635 (N.D. Cal. 2002),
25 aff’d 67 Fed.Appx. 408 (9th Cir. 2003)---------------------------------------------------------------------24
26 Perkins v. Mobile Housing Bd., 847 F.2d 735 (11th Cir. 1988)------------------------------------------16
27 Press v. Lucky Stores, Inc., 34 Cal.3d 311 (1983)--------------------------------------------------------11
28

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) iii

Case3:03-cv-02961 Document185 Filed08/07/06 Page6 of 32
1 Richard S. v. Dept. of Dev. Services, 317 F.3d 1080 (9th Cir. 2003)-------------------------------------7
2 Riverside v. Rivera, 477 U.S. 561 (1986)------------------------------------------------------------------13 3 Sablan v. Dept. of Finance of the Commonwealth of the Northern Mariana Islands, 4 856 F.2d 1317 (9th Cir. 1988)----------------------------------------------------------------------------------7
5 Salton Bay Marina v. Imperial Irrigation Dist., 172 Cal.App.3d 914 (1985)-------------------------16
6 Schmid v. Lovette, 154 Cal.App.3d 466 (1984)------------------------------------------------------------10 7 State v. Meyer (1985) 174 Cal.App.3d 1061---------------------------------------------------------------24 8
Sundance v. Municipal Court, 192 Cal.App.3d 268, 9 237 Cal.Rptr. 269 (1987) ------------------------------------------------------------------------------------13
10 Teitelbaum v. Sorenson, 648 F.2d 1248 (9th Cir. 1981) ---------------------------------------------------8 11 Thomas v. City of Tacoma, 410 F.3d 644 (9th Cir. 2005) -------------------------------------------------8 12
United States v. City & County of San Francisco, 748 F.Supp. 1416 (N.D. Cal. 1990), 13 aff’d sub nom Davis v. City & County of San Francisco, 972 F.2d 1536
(9th Cir. 1992)--------------------------------------------------------------------------------------------------17 14 15 United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403 (9th Cir. 1990)---------------------------19 16 Walker v. Carnival Cruise Lines, 107 F.Supp.2d 1135 (N.D. Cal. 2000)------------------------------25
17 Woodland Hills Residents Assn v. City Council, 23 Cal.3d 917 (1979)--------------------------------12 18 19 Statutes, Court Rules, and other Authorities
20 42 U.S.C. §1988 -----------------------------------------------------------------------------------------passim
21 Cal. Civil Code §51.7 ---------------------------------------------------------------------------------------5-6 22 Cal. Civil Code §52.1----------------------------------------------------------------------------------------5-6 23
Cal. Code of Civil Procedure §1021.5 ----------------------------------------------------------------passim 24
Pearl, Calif. Attorney Fee Awards, 2d ed., (Cal.Cont.Ed.Bar 2004) (collecting cases) ---------10, 20 25
26
27
28
No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) iv

Case3:03-cv-02961 Document185 Filed08/07/06 Page7 of 32

1 I. INTRODUCTION AND SUMMARY

2

This civil rights action (“Coles”) was brought by Plaintiffs Sri Louise Coles, Jennifer

3 Hansen, Dave Telles, Lindsay Parkinson, Scott Bohning, and Ron Smith against Defendants City
4 of Oakland and numerous Oakland Police Department (OPD) command staff and officers. Four of
5 these Plaintiffs settled their claims for separate damages amounts that “do not include Plaintiffs’
6
7 costs and attorneys’ fees, which the parties agree will be resolved by motion to the Court.”

8 Haddad 2d Supp. Decl., Ex. F, Mediation Agreement); Stipulation and Order for Dismissal

9 entered 7/31/06 (Docket # 183).1

10

Ron Smith, an independent journalist present to film the event, was shot in the hand that

11 held his videocamera to his face as he backed away from the police and filmed them. His camera
12 captured the trail of the 12-gauge bean bag coming from the police line and directly at him. He
13
was shot by someone on the same team of police officers involved in the shooting of Sri Louise 14

15 Coles, at the same location. His damages settlement was $48,000, exclusive of fees and costs.

16

Scott Bohning arrived late to the Port and did not even get to participate in the protest

17 because he was shot five times, including once in the face, three times in the back and once in the

18 hand, as he approached the protest along Maritime Street. His damages settlement was $30,000
19 exclusive of fees and costs.
20 Lindsay Parkinson was rammed by a police motorcycle traveling at 20 mph as she tried
21 22 to run to safety, leaving her with huge bruises, cuts, and a motorcycle tire mark on her leg.
23 Eyewitness Andrea Potter stated that Ms. Parkinson presented no threat to anyone and was just

24 running out of the way as the police officer sped up to slam into her and knock her to the ground.

25

Defendant officers then arrested Lindsay Parkinson, took her to jail where she spent the

26

27 1 Additionally, the settlements and this motion for attorneys’ fees and costs “are separate from, and do not
affect plaintiffs’ claim for attorneys’ fees and costs related to the previous partial settlement of injunctive
28 relief claims.” Haddad 2d Supp. Decl., Exhibit F.

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 1

Case3:03-cv-02961 Document185 Filed08/07/06 Page8 of 32

1 night, and prompted a criminal prosecution that lasted for over a year before the charges against

2 her were dismissed. Ms. Parkinson’s damages settlement was $31,250, excluding fees and costs.

3

Jennifer Hansen was struck by a police projectile in the back of her right arm as she was

4 dispersing away from the police, while the police herded protesters north on Maritime Street, with
5 tall fences enclosing the street. She had a large bruise on the back of her arm which resolved
6

7 without medical treatment. Her damages settlement was $10,000, excluding fees and costs.

8

This motion seeks attorneys’ fees and costs incurred by Ron Smith, Scott Bohning,

9 Lindsay Parkinson, and Jennifer Hansen, pursuant to their settlement agreement, and following an

10 unsuccessful attempt to settle those fee claims with Magistrate Judge Larson.
11 II. STATEMENT OF FACTS AND PROCEEDINGS
12 On September 27, 2005, this Court issued its Order granting in part and denying in part
13 Plaintiffs’ motion for attorneys’ fees related to the injunctive relief obtained. This Court held that
14
15 “Plaintiffs are entitled to attorneys’ fees and costs under both federal and state law.” Dkt. No.

16 115, p. 1. That motion remains pending since the parties participated in two unsuccessful

17 settlement conferences with Judge Larson.

18

The remaining damages claims proceeded through trial preparation. As this Court noted in

19 its September 27, 2005, Opinion, the majority of the plaintiffs in the Local 10 case accepted Rule
20 68 offers of judgment, with the exception of Longshore workers represented by John L. Burris,
21

22 and a few of James Chanin’s clients. As discussed below, five of the six Coles plaintiffs also

23 rejected Defendants’ Rule 68 offers of judgment.2

24

In November 2005, after a year of intensive discovery, Defendants agreed to mediate

25 Plaintiff Sri Louise Coles’ claims, and indicated that they may be willing to settle the other four
26
27 2 Plaintiff Dave Telles accepted Defendants’ Rule 68 offer of judgment for $8,500, including his attorneys’
fees and costs related to his damages, in a settlement that did not include his attorneys’ fees and costs for
28 injunctive relief. (Docket No. 152).

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 2

Case3:03-cv-02961 Document185 Filed08/07/06 Page9 of 32

1 Coles plaintiffs’ cases if Ms. Coles’ claim settled. At mediation on November 28, 2005, Ms.

2 Coles’ claim settled for $210,000, including her attorneys’ fees and costs related to her damages
3 claims. Haddad 2d Supp. Decl. ¶ 16. 4
At a separate mediation held on December 14, 2005, Defendants settled the remaining 5
damages claims of the last four Coles Plaintiffs (“Ron Smith, et. al.”) for damages amounts not 6 7 including attorneys’ fees and costs, which the parties agreed “will be resolved by motion to the
8 Court.” (Haddad 2d Supp. Decl., Ex. F, Mediation Agreement; Stipulation and Order re:

9 Settlements, Docket # 183). These plaintiffs settled their damages claims as follows:

10

Ron Smith:

$48,000

11 Jennifer Hansen: $10,000

12

Scott Bohning:

$30,000

13

Lindsay Parkinson: $31,250 14

15

These settlements for these four plaintiffs essentially represent verdicts on their civil rights

16 claims. Thus, with respect to the damages claims of Ron Smith et. al., those Plaintiffs have

17 “prevailed” against Defendants, and are now entitled to reasonable attorneys’ fees and costs

18 associated with their claims, from beginning to end.3
19 This case settled less than six weeks before the January 24, 2006, trial date. Despite what
20 appeared to be some quite egregious conduct by members of the OPD on April 7, 2003, the City
21 22 of Oakland fought these damages claims tenaciously and aggressively. Defendants refused to
23 make reasonable settlement offers to these Plaintiffs, making small Rule 68 offers of judgment

24 after three unsuccessful settlement conferences. Haddad 2d Supp. Decl. ¶ 18.

25

By the time these claims settled, the Coles Plaintiffs were ready to go to trial. It was only

26

27 3 This motion only addresses these plaintiffs’ claims for fees and costs related to their damages claims,
since all of the Coles plaintiffs still have pending a motion for fees and costs related to their previously
28 settled declaratory and injunctive relief claims.

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 3

Case3:03-cv-02961 Document185 Filed08/07/06 Page10 of 32

1 the imminence of trial that created the conditions for these reasonable damages settlements.

2

By that time, the Coles Plaintiffs had taken 21 depositions of Oakland Police officers and

3 command staff4 (of the approximately 200 OPD employees involved in the incident and its
4 aftermath); attended defense depositions of each Plaintiff and a handful of non-party witnesses
5 with information related to these Plaintiffs’ cases; attended defense medical examinations of some
6
7 of the Plaintiffs; met with and attended depositions of Plaintiffs’ medical treaters; consulted with

8 Plaintiffs’ liability and medical expert witnesses through the drafting of their Rule 26 reports;

9 analyzed defense Rule 26 expert witness reports; drafted answers to Defendants’ two sets of

10 interrogatories and requests for admissions to each Plaintiff; drafted responses to Defendants’
11 motion to dismiss, Defendants’ motion to certify denial of their motion to dismiss for appeal, and
12 Defendants’ motion for partial summary judgment; drafted Plaintiffs’ motion for partial summary
13 judgment; produced, reviewed, and analyzed disclosures of documents numbering several
14
15 thousand pages; reviewed several hours of videotape from the Port incident and subsequent party

16 admissions; drafted Plaintiffs’ interrogatories and requests for admissions to Defendants; reviewed

17 multiple documents and videotapes subpoenaed by Defendants; located, contacted and interviewed

18 non-party witnesses; reviewed medical records and consulted with Plaintiffs’ medical treaters,

19 among other substantive work on this case. Haddad 2d Supp. Decl., ¶ 19. All of this is well-
20 documented in Plaintiffs’ counsel’s time summaries filed herewith. See, Haddad 2d Supp. Decl.,
21
22 Exhs. C and D; Sherwin Supp. Decl., Exhs C and D.

23

For example, the complex, factually detailed, and hard fought nature of these proceedings

24 (much like the underlying events at the Port of Oakland) is evidenced in the parties’ thoroughly

25 prepared cross-motions for partial summary judgment. Dkt. Nos. 122, 125.

26

By the time this case settled on the eve of trial, these four Plaintiffs’ attorneys’ fees

27

28 4 Some of these police officers’ depositions were two volumes.

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1 amounted to 463.1 hours for Michael J. Haddad and 256.4 hours for Julia Sherwin, not including

2 those fees requested in the motion for attorneys’ fees already before this Court related to the

3 injunctive relief. Moreover, this fee petition does not include more than 196 hours devoted to the

4 damages claims for Sri Louise Coles and Dave Telles.5 Additionally, this fee petition does not
5 include 23.8 hours deducted in the exercise of billing judgment.
6

7

Plaintiffs’ counsel submitted their time summaries related to the Ron Smith, et. al.,

8 damages claims to Defendants on May 8, 2006. Haddad 2d Supp. Decl., ¶ 3.

9

The parties had another settlement conference with Magistrate Larson on June 7, 2006. At

10 this settlement conference, Defendants offered to settle all of Plaintiffs’ attorneys’ fees and costs,
11 including those related to the injunctive relief claims, for a total of $125,000. Id. This was the
12 first offer to settle the Coles Plaintiffs’ claims for attorneys’ fee and costs that Defendants had ever
13 made in this case. Through Judge Larson, Defendants stated that they would never agree to pay
14
15 any more than $200,000 for all of Plaintiffs’ attorneys’ fees and costs throughout this entire

16 litigation. The settlement conference ended unsuccessfully. Id.

17

Having prevailed not only in their challenge to the OPD’s crowd control policy, but also in

18 receiving substantial settlements for each of their damages claims -- and having agreed with
19 Defendants that their attorneys’ fees and costs will be paid separately and resolved by motion to
20 this Court -- these four Plaintiffs are now entitled to an award of reasonable attorneys’ fees and
21 22 costs under both federal and state law: 42 U.S.C. §1988; California Civil Code §§ 52.1 and 51.7,
23 and Code of Civil Procedure § 1021.5.

24

In this motion, Plaintiffs request a lodestar of $297,062.00, and $19,951.67 in costs and

25
5 Both Sri Louise Coles and Dave Telles settled their cases for lump sums including fees and costs related
26 to their damages claims, and specifically excluded their fees and costs related to injunctive relief. (Dkt
Nos. 175, 171, 152). In this motion for attorneys’ fees and costs, to avoid making any claim for fees and
27 costs solely – or even primarily – related to the claims of Ms. Coles and Mr. Telles, Haddad & Sherwin
have excluded from their fee petition more than 196 hours devoted to their damages claims. Haddad 2d
28 Supp. Decl. ¶ 20.

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1 expenses, plus a modest 1.5 lodestar enhancement under California law for work on the merits.

2 This request is eminently reasonable: the number of hours spent is fully documented by time
3 summaries from contemporaneous records and reflects the important issues and intense litigation 4
Plaintiffs’ counsel faced in this action; the hourly rates are well within the range of prevailing 5
market rates for similarly complex federal litigation; and, under California law, lodestar 6 7 enhancements to reflect contingent risk, exceptional efficiency and results, and the public interests
8 served by this lawsuit are necessary to arrive at a fee that is reasonable by marketplace standards.

9 III. 10 11

PLAINTIFFS ARE ENTITLED TO THEIR REASONABLE ATTORNEYS’ FEES AND COSTS
Plaintiffs are entitled to an award of reasonable attorneys’ fees under four separate statutes:

12 42 U.S.C. §1988, California Civil Code §§ 52(b)(3) and 52.1(h), and California Code of Civil

13 Procedure § 1021.5.6 Fees are properly awardable to Plaintiffs for all pending civil rights claims.

14 Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803, 807-808 (9th Cir. 2005)
15 citing Maher v. Gagne, 448 U.S. 122, 132 n.15 (1980) (pendent claims arising from “common 16
nucleus of operative fact” also support fee award). 17

18 6 Plaintiffs brought claims under 42 U.S.C. §§ 1983 and 1988 for violation of the First, Fourth, and

Fourteenth Amendments, and under California Civil Code §§ 52.1 (interference or attempted interference
19 with civil rights) and 51.7 (subjection to violence or intimidation on account of political affiliation, speech,

association, or other basis). Dkt No. 92 (Third Am. Complaint).
20
42 U.S.C. §1988 provides in pertinent part: “In any action or proceeding to enforce a provision of

21 section … 1983 …, the court, in its discretion, may allow the prevailing party, other than the United States,

a reasonable attorney’s fee as a part of costs….”

22

California Civil Code § 52(b)(3) provides for an award of “attorney’s fees as may be determined by the

23 court.”

California Civil Code § 52.1(h) provides in relevant part: “In addition to any damages, injunction, or
24 other equitable relief awarded in an action brought pursuant to subdivision (b), the court may award the

petitioner or plaintiff reasonable attorney’s fees.”
25
California Code of Civil Procedure §1021.5 provides: “Upon motion, a court may award attorneys’ fees

26 to a successful party against one or more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if: (a) a significant benefit, whether

27 pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the

necessity and financial burden of private enforcement, …, are such as to make the award appropriate, and

28 (c) such fees should not in the interest of justice be paid out of the recovery, if any. …”

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1

Under each statute, a prevailing plaintiff “should ordinarily recover an attorney’s fee

2 unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S.

3 424, 429 (1983). In addition, §1021.5 requires that the action have enforced an important right

4 affecting the public interest and conferred a significant benefit on the general public or a large
5 class of persons. Each of these requirements is met here.
6

7

A. The Settlement Makes Plaintiffs the Prevailing Parties.

8

It is undisputed that the favorable settlement of their damages claims -- with amounts paid

9 to each Plaintiff that does “not include Plaintiffs’ costs and attorneys’ fees, which the parties agree

10 will be resolved by motion to the court”-- qualifies Plaintiffs as the “prevailing” parties in this
11 litigation, entitled to an award of reasonable attorneys’ fees and costs. Plaintiffs qualify as
12 “prevailing parties” when they have achieved judicially enforceable relief that “materially alters
13 the legal relationship between the parties by modifying the defendant’s behavior in a way that
14 15 directly benefits the plaintiff.” Richard S. v. Dept. of Dev. Services, 317 F.3d 1080, 1087 (9th Cir.
16 2003), quoting Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1134 (9th Cir.

17 2002). Judicially enforceable relief may be obtained by settlement: “A plaintiff ‘prevails, and thus

18 is entitled to attorney’s fees and costs, when he or she enters into a legally enforceable settlement

19 agreement with the defendant.” 317 F.3d at 1086, citing Barrios, 277 F.3d at 1134.
20 California law is similar, if not broader. See Graham v. DaimlerChrysler Corp., 34 Cal.4th
21
22 556, 569 (2004) (interpreting California’s standard more broadly than federal standard).

23

Neither statutory scheme requires a finding that Plaintiffs would have prevailed on the

24 merits had the case continued: “’Nothing in the language of § 1988 conditions the District Court’s

25 power to award fees on full litigation of the issues or a judicial determination that the plaintiff’s
26 rights have been violated.’” Sablan v. Dept. of Finance of the Commonwealth of the Northern 27
Mariana Islands, 856 F.2d 1317, 1324 (9th Cir. 1988), quoting Hanrahan v. Hampton, 446 U.S. 28

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1 754, 757 (1980). Instead, Plaintiffs are entitled to fees if their action was “not frivolous,

2 unreasonable, or groundless.” See, e.g., Sablan, 856 F.2d at 1327; Graham, 34 Cal.4th at 575-76.

3

B. Public Policy Strongly Favors a Fee Award.

4 The plaintiff who brings a civil rights case acts not only on his or her own behalf, but also
5 as a “‘private attorney general,’ vindicating a policy that Congress considered of the highest
6

7 priority.” Newman v. Piggie Park Enterprises, supra, 390 U.S. 400, 402 (1968); Martin v.

8 Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985)(en banc). To require Defendants to pay reasonable

9 attorney’s fees does not create a windfall, but “fulfills the Congressional purpose of §1988(b).”

10 Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005).
11 The overriding purpose of § 1988 fee awards is to compensate attorneys who vindicate
12 protected rights: “A primary congressional purpose in enacting section 1988 was to encourage
13 worthwhile litigation that is necessary to protect civil rights.... Where parties prevail in
14
15 vindicating important rights, but receive little or no financial benefit as a result of that litigation, it

16 was considered unfair for those parties to bear their own attorney’s fees.” Martin v. Heckler, 773

17 F.2d at 1150-1151. Fee awards “are not designed to penalize defendants, but are rather to

18 encourage injured individuals to seek judicial relief…. [F]ee awards should be the rule rather than
19 the exception.” Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir. 1981). 20
While civil rights attorney’s fee awards are meant to encourage voluntary compliance, that 21 22 is secondary to their purpose of providing an entitlement to fees to prevailing parties whose
23 actions vindicate protected rights. Id. Section 1988, with its attorneys’ fees provision, “was

24 enacted for the very purpose of influencing governmental entities to make thoughtful efforts to

25 avoid civil rights violations.” Ackerley Communications, Inc. v. City of Salem, 752 F.2d 1394,
26 1398 (9th Cir. 1985)(emphasis added). 27
In this case, Plaintiffs brought civil rights claims as private attorneys general, and in 28

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1 addition to achieving sweeping injunctive relief and a “model policy” limiting Defendants’ use of

2 force when dealing with crowds, obtained substantial damages compensation vindicating the
3 constitutional principles that governments may not forcefully attack people who peacefully 4
exercise their First Amendment rights. 5
Defendants refused to negotiate the Plaintiffs’ damages claims until the very end. The 6 7 parties went through three unsuccessful settlement conferences with Defendants, on July 16, 2004,
8 July 23, 2004, and November 18, 2004. Haddad 2d Supp. Decl. ¶ 18.

9

On February 14, 2005, Defendants mailed a letter with low settlement offers for each

10 claim, demanding a response by February 16, 2005. When informed that Plaintiffs could not meet

11 this time demand, on February 18, 2005, Defendants issued offers of judgment sending the
12 message that they did not take Plaintiffs’ claims seriously.7 Haddad 2d Supp. Decl. ¶ 18.
13 Each Plaintiff in this motion for fees and costs ultimately obtained significantly more in
14

15 settlement – with attorneys’ fees to be paid separately – than Defendants had offered them before:

16

NAME

2/05 RULE 68 OFFER*

SETTLEMENT*8

17 Ron Smith

$25,000 including fees & costs $48,000 excluding fees & costs

18 Scott Bohning

$12,500 including fees & costs $30,000 excluding fees & costs

19 Lindsay Parkinson $10,000 including fees & costs $31,250 excluding fees & costs
20

Jennifer Hansen 21

$5,000 including fees & costs $10,000 excluding fees & costs

22 Sri Louise Coles $12,500 including fees & costs $210,000 including fees & costs*

23 Dave Telles

$8,500 including fees & costs $8,500 including fees & costs*

24

25
7 In a March 10, 2005 email, Defendants withdrew even these low offers of judgment. Haddad 2d Supp.
26 Decl., ¶ 18.
27 8 * Fees and costs discussed are those relating to damages. All fees and costs related to injunctive relief
are separate, and addressed in the pending motion for fees and costs related to injunctive relief. Haddad 2d
28 Supp. Decl., Exhibit F; Docket Nos. 175, 171, 152.

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1

C. Special Circumstances.

2

There are no “special circumstances” here that would render an award “unjust.” Consistent

3 with the purposes of civil rights fee-shifting statutes, “special circumstances” that would deny fees

4 to a prevailing plaintiff are construed very narrowly. New York Gas Light Club, Inc. v. Carey, 447
5 U.S. 54, 68 (1980); Schmid v. Lovette, 154 Cal.App.3d 466, 475 (1984).
6

7

The overriding principle is that “a prevailing party in a § 1983 action ‘should ordinarily

8 recover an attorney’s fee unless special circumstances would render such an award unjust.” 9 Democratic Party of Wash. State v. Riley, 388 F.3d 1281, 1285 (9th Cir. 2004) (emphasis added).

10 Defendants bear the burden of proving that “special circumstances” warrant a denial of fees, and 11 that showing “must be a strong one.” Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir. 12 1989). See also Borunda v. City of Richmond, 885 F.2d 1384, 1392 (9th Cir. 1991) (“special 13 circumstances” to deny fees to prevailing party are “severely limited” and “extremely rare”). 9

14

California law takes an equally narrow view of the “special circumstances” exception.

15 See, e.g., Schmid v. Lovette, 154 Cal.App. 3d 466, 476 (1984); Los Angeles Times

16 Communications, LLC v. Los Angeles County Bd. of Supervisors, 112 Cal.App.4th 1313, 1325-

17 1235 (2003). See generally Pearl, Calif. Attorney Fee Awards, 2d ed., sec. 2.6, pp. 27-30

18 (Cal.Cont.Ed.Bar 2004) (collecting cases).

19 In this case, having agreed to pay Plaintiffs’ attorneys’ fees and costs separately,
20 Defendants cannot claim ‘special circumstances’ make enforcement of their agreement unjust.10
21

22

D. Plaintiffs Satisfy the Elements of California Code of Civil Procedure § 1021.5.

23

Plaintiffs also qualify for a fee award under California’s private attorney general statute,

24

25

9 The reason for this narrow construction was explained in Maloney v. City of Marietta, 822 F.2d 1023, 1027 (11th Cir. 1987): “The special circumstances exception is a judicially created concept, not mentioned

26

in any of the fee award statutes, and therefore ‘should be narrowly construed so as not to interfere with the congressional purpose in passing such statutes.’”

27 10 In its Order related to injunctive relief fees, this Court found, “Defendants have failed to make any
showing, let alone the required strong showing, that special circumstances make an award of fees unjust in
28 these cases.” Order filed September 27, 2005, Dkt No. 115, (hereinafter, “September 27 Order”) pp. 1, 10.

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1 Code of Civil Procedure § 1021.5.11 First, they have enforced important rights affecting the public
2 interest. Plaintiffs’ claims are based on their federal and state constitutional rights to be free from 3 the use of excessive force, particularly force used in retaliation for First Amendment protected 4
activity. See Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185 (9th Cir. 2001), 5
on remand, 276 F.3d 1125 (9th Cir. 2002) (use of force against non-violent protesters); Deorle v. 6 7 Rutherford, 272 F.3d 1272 (9th Cir. 2001) (‘bean bags’ are a very high degree of force); Collins v. 8 Jordan, 110 F.3d 1363 (9th Cir. 1996) (First Amendment rights in crowd control situation).
9 Similar constitutional rights have been held to constitute “important rights” per se. See Press v.
10 Lucky Stores, Inc., 34 Cal.3d 311, 318 (1983) (“[T]he determination that the public policy 11
vindicated is one of constitutional stature … establishes the first the three elements requisite to the 12
award (i.e., the relative societal importance of the public policy vindicated”). 13
Second, a significant benefit has been conferred on the public or a large class of persons. 14 15 The broad changes that the Oakland Police Department has agreed to make to its crowd control
16 policies, training, and procedures will protect the public from future abuses in crowd control
17 situations. Additionally, these Plaintiffs’ damages settlements not only compensated them for the 18 injuries they suffered; but also held the Oakland Police Department responsible for its attack on 19
peaceful journalists and demonstrators speaking out in opposition to the war against Iraq. 20
These settlements vindicated the important constitutional principles that our government 21 22 shall not attack people for exercising their First Amendment rights, and that police shall not use 23 excessive force in violation of the Fourth Amendment. These well-publicized settlements will
24 deter other law enforcement agencies from violating the Constitution when dealing with non-
25 violent demonstrators, and generally deter police excessive uses of force in the future. 26
27
11 In its September 27, 2005, Order relating to the injunctive relief fee motion, this Court found that
28 Plaintiffs are entitled to fees under Civil Code § 1021.5. 9/27/05 Order, Docket # 115, p. 10.
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1

Third, the necessity and financial burden of private enforcement makes an award of

2 attorneys’ fees to Plaintiffs appropriate. When an action is brought against a public entity, the
3 need for private enforcement is clear. Woodland Hills Residential Ass’n v. City Council 4
(Woodland Hills II), 23 Cal. 3d 917, 941 (1979). The next inquiry balances the costs and benefits 5
of the litigation: "An award on the 'private attorney general' theory is appropriate when the cost of 6 7 the claimant's legal victory transcends his personal interest, that is, when the necessity for
8 pursuing the lawsuit placed a burden on the plaintiff 'out of proportion to his individual stake in

9 the matter.' [Citation omitted.]" Id.

10

The relevant inquiry is whether the litigant’s personal stake in the litigation exceeds its

11 cost by a substantial margin. See Beasley v. Wells Fargo Bank, 235 Cal.App.3d 1407, 1416-1417
12 (1992). Here, these four Plaintiffs’ combined damages settlements amount to $119,250. After
13
three unsuccessful settlement conferences, Defendants made Rule 68 offers for a small fraction of 14

15 the final settlement amounts, and then withdrew those offers. Defendants then refused to settle

16 Plaintiffs’ damages claims until the eve of trial in this matter, requiring Plaintiffs to incur further

17 attorneys’ fees and costs to prepare for the trial of this complex civil rights case.

18

Finally, Plaintiffs’ attorneys’ fees could not and should not be paid out of any recovery:

19 the cost of obtaining this relief should not be borne solely by the Plaintiffs, who are all of very
20 modest means. Haddad Decl. ¶ 11. See, e.g., Notrica v. State Compensation Ins. Fund, 70
21
22 Cal.App.4th 911, 954 (1999) (§1021.5 fees awarded for obtaining injunctive relief against Fund,

23 even though plaintiff also recovered $5 million in punitive damages).

24 IV. PLAINTIFFS’ ATTORNEYS’ FEES ARE REASONABLE

25

The fundamental objective of private attorney general fee statutes is “to encourage suits

26 effectuating a strong [public] policy by awarding substantial attorney’s fees...to those who
27 successfully bring such suits.” Woodland Hills Residents Assn v. City Council, 23 Cal.3d 917,
28

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1 933 (1979) (emphasis added). As the Ninth Circuit has recognized, civil rights actions,

2

vindicate important public interests whose value transcends the dollar amounts that

attach to many civil rights claims. Fee awards ensure that neither financial imperatives

3

nor market considerations raise an insurmountable barrier that prevents attorneys from

litigating meritorious cases, and even a relatively small damages award “contributes

4

significantly to the deterrence of civil rights violations in the future.”

5 Beaty v. BET Holdings, Inc., 222 F.3d 607, 612 (9th Cir. 2000),, quoting City of Riverside v.

6 Rivera, 477 U.S. 561, 575 (1986).
7 Unless Plaintiffs’ attorneys are fully compensated for their efforts, the letter and spirit of
8 Congress’ and California’s fee-shifting statutes will not be fulfilled. See, e.g., Crommie v. P.U.C,
9
10 840 F.Supp. at 725 (fee award must be large enough “to entice competent counsel to undertake

11 difficult public interest cases”)(Fee awards must make civil rights cases as financially attractive as

12 “‘other types of equally complex ...litigation.’” Blum v. Stenson, 465 U.S. 886, 893(1984)). “It

13 must be remembered that an award of attorneys’ fees is not a gift. It is just compensation

14 for expenses actually incurred in vindicating a public right.” Sundance v. Municipal Court,
15 192 Cal.App.3d 268, 273 (1987).
16
A. A Summary of Plaintiffs’ Claim. 17

18

Under both California and federal law, the determination of whether Plaintiffs’ attorneys’

19 fees are reasonable begins with a determination of the lodestar -- reasonable hourly rates

20 multiplied by the number of hours reasonably spent. See, e.g., Hensley v. Eckerhart, 461 U.S. at

21 433; Ketchum v. Moses, 24 Cal.4th 1122, 1133-1136 (2001). Under federal law, the lodestar is
22 presumptively reasonable. See, Morales v. City of San Rafael, 96 F.3d 359, 364 (9th Cir. 1996). 23
Under California law, however, the lodestar method requires adjustment to reflect other 24 25 factors that go into the determination of a reasonable fee such as contingent risk and results
26 obtained. See Ketchum v. Moses, 24 Cal.4th 1122, 1123 (2001); Horsford v. The Board of

27 Trustees of California State University, 132 Cal.App.4th 359, 394 (2005). Hourly rates must be

28

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1 based on “‘the hourly prevailing rate for private attorneys in the community conducting

2 noncontingent litigation of the same type.’” Horsford, 132 Cal.App.4th at 394, quoting Ketchum,

3 24 Cal.4th at 1133 [italics in original]. Rates are reasonable if they are “within the range of

4 reasonable rates charged by and judicially awarded comparable attorneys for comparable work.”
5 Children’s Hospital Medical Center v. Bonta, 97 Cal.App.4th 740, 783 (2002).
6

7

In the instant case, a complete breakdown of Plaintiffs’ fee claim is attached as Appendix

8 A. The total lodestar claimed for work on the merits related to litigation of these damages claims

9 is $297,062.00. See Haddad 2d Supp. Decl., ¶ 10; Sherwin Supp. Decl., ¶ 15. This is based on

10 463.1 hours claimed by Mr. Haddad at $420 per hour, and 256.4 hours claimed by Ms. Sherwin at
11 $400 per hour. It does not include the hundreds of hours not claimed in relation to the injunctive
12 relief claims. It does not include over 196 hours related to the damages claims of Sri Louise Coles
13 and Dave Telles, for which an attorney fee award is not being sought. And, it does not include the
14
15 23.8 hours of compensable time deleted in the exercise of billing judgment. See Haddad 2d Supp.

16 Decl., ¶¶ 10, 20; Sherwin Supp. Decl., ¶ 15.

17

Haddad & Sherwin’s hourly rates have increased slightly from what they were in January

18 2005, from $400 and $380 to $420 and $400 respectively. Market rates for attorneys in the Bay
19 Area have increased substantially in the last year, and both Haddad & Sherwin have further
20 experience, successes, and honors than they had at the time of last year’s motion for attorneys’
21 22 fees and costs. Haddad 2d Supp. Decl., ¶ 13; Sherwin Supp. Decl., ¶ 20; Bien Decl. ¶ 2; Pearl
23 Decl. (8/7/06) ¶ 6.

24

Plaintiffs’ costs and out-of pocket expenses are also fully recoverable. See, e.g., Lucas v.

25 White, 63 F.Supp.2d 1046, 1063 (N.D. Cal. 1999) (“It is well-established that [out-of-pocket]
26 costs are recoverable as part of a fee award”); Beasley v. Wells Fargo Bank, 235 Cal.App.3d at 27
1419 (expert witness expenses recoverable under C.C.P. § 1021.5). These costs and expenses total 28

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1 $ 19,951.67, and do not include either costs sought in Plaintiffs’ First Motion for Fees and Costs

2 Re: Injunctive Relief, or costs appropriately attributable to the claims of Plaintiffs Coles and

3 Telles. Haddad 2d Supp. Decl., ¶ 14, Ex. E.
4 The total lodestar for fee-related services (to date) is $ 20,300. Haddad 2d Supp. Decl., ¶
5 10; Sherwin Supp. Decl., ¶ 16. Mr. Pearl is not claiming fees to date for this second motion
6
7 related to the damages settlements.

8

In addition, under California law, a modest 1.5 lodestar enhancement for work on the

9 merits is appropriate to reflect, inter alia, the fact that any compensation for counsel’s work was

10 entirely contingent on obtaining relief for the Plaintiffs.
11 B. Plaintiffs’ Lodestar Is Reasonable
12 1. The Number of Hours Claimed Is Reasonable
13 Under both California and federal law, Plaintiffs are entitled to be compensated for every
14
15 hour reasonably spent to vindicate their clients’ interests:

16

"Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally, this will encompass all hours reasonably expended on

17

the litigation, and indeed in some cases of exceptional success an enhanced award

may be justified.”

18 Hensley v. Eckerhart, 461 U.S. at 435 (emphasis added). As the California Supreme Court stated,

19

“absent circumstances rendering the award unjust, an attorney fee award should ordinarily include 20

21 compensation for all the hours reasonably spent,…” Ketchum v. Moses, 24 Cal.4th at 1133

22 (emphasis in original). Once the plaintiff has presented a fully-documented claim, the burden

23 shifts to the defendants to show by specific evidence that the number of hours claimed is not

24 reasonable. See Gates v. Gomez, 60 F.3d 525, 534 (9th Cir. 1995).
25 In the instant case, several factors show that the number of hours claimed is eminently
26 reasonable. First, Plaintiffs’ claim is fully documented by detailed time summaries, based on
27 contemporaneous records, that show when and how each tenth of an hour was spent. Haddad 2d
28

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1 Supp. Decl., ¶ 10, Exh. C; Sherwin Supp. Decl., ¶ 15, Exh. C. See Perkins v. Mobile Housing Bd.,

2 847 F.2d 735, 738 (11th Cir. 1988) (counsel’s “sworn testimony that, in fact, it took the time

3 claimed is evidence of considerable weight on the issue of the time required in the usual case”).

4 Second, Plaintiffs’ counsel have exercised billing judgment: 23.8 hours of compensable
5 time has not been claimed. Id.
6

7

Third, Plaintiffs have not claimed any time related to their injunctive relief claims, already

8 pending before this Court. Haddad 2d Supp. Decl., ¶¶ 9-10; Sherwin Supp. Decl., ¶ 15. Nor have

9 Plaintiffs claimed any time solely or even predominantly related to the damages claims of

10 Plaintiffs Coles and Telles. Id. The only fees and costs now claimed are for the time reasonably

11 expended to prepare this case for trial and time related to the damages claims of Plaintiffs Smith,
12 Hansen, Bohning and Parkinson -- the time that would have been claimed if this case had not pled
13
damages claims for any other plaintiffs. Id. 14

15

Under well-established case law, no apportionment is required for work that might also be

16 useful for clients whose claims have already resolved. See, e.g., Cinevision Corp. v. City of

17 Burbank, 745 F.2d 560, 581 (9th Cir. 1984) (time spent on matters that is useful to both fee-

18 shifting and (potentially) non-fee-shifting claims is fully compensable without apportionment),

19 cert.denied, 471 U.S. 1054 (1985); Salton Bay Marina, Inc. v. Imeprial Irrigation Dist., 172

20
Cal.App.3d 914, 958 (1985) (same). 21

22

Fourth, Plaintiffs’ counsel used considerable discretion in the work they did and did not

23 do. Haddad 2d Supp. Decl., ¶¶ 4, 5, 19; Sherwin Supp. Decl., ¶¶6-8. Any lesser effort by

24 Plaintiffs’ counsel might well have threatened Plaintiffs’ rights. See Bankston v. State of Illinois,

25 60 F.3d 1249, 1256 (7th Cir. 1995) (full fee award appropriate unless defense can show that
26 Plaintiffs’ counsel "could have done significantly less work without jeopardizing the claims he did 27
win"). 28

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1

Finally, Coles counsel coordinated closely with Local 10 counsel and there was no

2 unnecessary duplication of effort. Id. While each Coles plaintiff had his or her own damages
3 claim independent from those of the Local 10 plaintiffs, counsel for both cases shared deposition 4
transcripts and evidence and coordinated their work to keep costs down. Id. Additionally, within 5
the firm of Haddad & Sherwin, Michael Haddad was primarily responsible for the injunctive relief 6 7 negotiations for the Coles plaintiffs; Julia Sherwin was primarily responsible for the damages
8 work; and the two attorneys divided the responsibility for preparing the liability portion of the

9 case for trial. Id.

10

When, as here, multiple attorneys are warranted, a reduction for “duplication” is

11 appropriate only where the defendant can show that plaintiff’s counsel were “unreasonably doing
12 the same work.” Johnson v. Univ. College, 706 F.2d 1205, 1208 (11th Cir. 1983), cert. den., 104
13 S.Ct. 489 (1983) (emphasis the court’s). No such showing can be made here. The appearance of
14

15 multiple attorneys at depositions, hearings, or settlement meetings was fully justified by the nature

16 and scope of the issues, by the separate parties that counsel represented (see United States v. City

17 & County of San Francisco, 748 F.Supp. 1416, 1420 (N.D. Cal. 1990), aff’d sub nom Davis v.

18 City & County of San Francisco, 972 F.2d 1536, 1544 (9th Cir. 1992) (no duplication where
19 counsel represented distinct parties)), and by the separate responsibilities each counsel had
20 pursuant to their division of labor (see Democratic Party of State of Washington v. Riley, 388 F.3d
21 22 1281 (9th Cir. 2004)). Haddad 2d Supp. Decl., ¶ 5. A fully compensatory fee is appropriate.

23

2. Counsel’s Hourly Rates Are Reasonable.

24

Under both federal and state law, Plaintiffs’ counsel are entitled to the hourly rates they

25 have claimed if those rates are “in line with” the rates charged by attorneys of comparable
26 experience, expertise, and skill for comparable work. See Blum v. Stenson, 465 U.S. 886, 895 fn. 27
11 (1984); Children’s Hosp. & Med. Ctr. v. Bonte, 97 Cal.App.4th 740, 783 (2002). The fair 28

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Case3:03-cv-02961 Document185 Filed08/07/06 Page24 of 32

1 market value of the work performed sets the measure, as determined by the rates charged by

2 commercial firms for comparably complex federal litigation. Davis v. City & County of San
3 Francisco, 976 F.2d at 1547. See also U.S. v. City & County of San Francisco, 748 F.Supp. at 4
1431 (plaintiff’s attorneys entitled to rates charged by “corporate attorneys of equal caliber”). 5
In this phase of the case, Mr. Haddad’s $420 per hour rate reflects his fifteen years of 6 7 experience as a civil rights trial lawyer, and particularly his extensive trial experience: he has tried
8 more than 16 cases, and was a partner in a prominent, nationally respected civil rights firm before

9 he came to California. He has specialized in civil rights and police misconduct law for his entire

10 legal career and is a regular presenter at seminars on those issues. He is now the Treasurer of the

11 National Police Accountability Project, a panel attorney and advisor to Bay Area Police Watch,
12 and Treasurer of the Board of the Alameda Contra Costa Trial Lawyers Association (ACCTLA).
13
Haddad Decl. ¶¶ 1-9; Haddad 2d Supp. Decl., ¶ 2. 14

15

Ms. Sherwin’s $400 per hour rate reflects her eleven years of experience as a trial lawyer.

16 Sherwin Decl. ¶¶ 12-16. Like Mr. Haddad, Ms. Sherwin’s experience has focused on civil rights

17 litigation, and has included significant successes on novel legal issues in both state and federal
18 courts, especially in the First Amendment area. Id. She is President-Elect of the ACCTLA, where
19 she has been the editor of the ACCTLA’s publication, The Verdict, and on the Executive
20 Committee for the past three years. She is also a panel attorney and advisor for Bay Area Police
21 22 Watch, and has been cooperating counsel with the Center for Constitutional Rights. Sherwin
23 Decl. ¶¶ 13; Sherwin Supp. Decl., ¶¶ 3-5.

24

Mr. Haddad’s and Ms. Sherwin’s rates are well within the range of rates charged by

25 similarly experienced and skilled Bay Area attorneys for comparable federal litigation. See
26 Sturdevant Decl., ¶ 10; Pearl Decl., ¶¶ 6 -11; Bien Decl., ¶2. Specifically, Mr. Haddad’s rate is in 27
line with those charged by the following firms (Pearl Decl., ¶ 9): 28

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1

FIRM

2 Bushnell Caplan & Fielding

YEAR 2005

ATTY’S YEARS OF EXPERIENCE 13

RATE $400

3 Chavez & Gertler

2005

16*

475

4 Cooley Godward

2003

14

415

5 Heller Ehrman White &

McAuliffe 6

2003

14

405

Lerach Coughlin, et al.

2003

14

7

395-460

Lieff, Cabraser, et al.

2003

13

8

430-450

Morgan Bockus et al.

2003

13

470

9

10 Schneider & Wallace

2004

13

435

11 * Associate rate

12

Ms. Sherwin’s rate is in line with the rates charged by the following firms (id.):

13

FIRM

14 Chavez & Gertler

YEAR 2005

ATTY’S YEARS OF EXPERIENCE 10*

RATE $395

15 Heller Ehrman et al.

2003

10*

378**

16 Keker & Van Nest.

2003

9

380

17 Lerach Coughlin et al.

2003

10

385

18 O’Melveny & Myers

2002

9

390

19 Schneider & Wallace

2004

11

435

20 Skadden, Arps et al.

2004

8

435

21 * Associate rate; ** Discounted rate;

22

Counsel’s rates also are consistent with prior awards they have received. In fact, four

23 years ago, this Court found that counsel’s then-current rates of $325 per hour for Mr. Haddad and

24 $290 per hour for Ms. Sherwin were reasonable. See Order Granting Plaintiffs’ Motion for
25 Reasonable Attorneys’ Fees and Costs, filed June 12, 2002, in Homes Not Jails v.City of San
26 Francisco, N.D. Cal. No. C 99-4204 TEH (Haddad Decl., Exh. U). Given their increased
27 experience and skill, counsel’s current hourly rates are entirely consistent with this prior award.
28

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1 See United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

2

Finally, Mr. Pearl’s rate also is reasonable. He is a 37-year attorney with extensive

3 experience litigating attorney fee matters in federal and state trial and appellate courts. Pearl
4 Decl., ¶¶ 2-6 and Exh. A. He is the author of both state and federal manuals on attorney fee
5 awards, including California Attorney Fee Awards, 2d Ed., published by California’s Continuing
6
7 Education of the Bar in 1994 and updated annually since. Id. Numerous courts have determined

8 his rates to be reasonable. Id., ¶ 6. See also Sturdevant Decl., ¶ 10 (Pearl’s rate “below market”).

9

C. To Reflect the Legal Marketplace, a Modest Lodestar Enhancement Is

Appropriate 10

11

Plaintiffs seek a modest 1.5 lodestar enhancement for their work on the merits of these

12 plaintiffs’ damages claims, as authorized by California law. Under that law, as the California

13 Supreme Court has recognized, the “lodestar” represents only the fee that a fee-paying client

14 would have paid in an ordinary case, win or lose: “Under our precedents, the unadorned lodestar

15 reflects the general local hourly rate for a fee-bearing case; it does not include any compensation
16 for contingent risk, extraordinary skill, or any other factors a trial court may consider under
17 Serrano III.” Ketchum v. Moses, 24 Cal.4th at 1138.
18

19

The lodestar method, however, is intended to mirror the legal marketplace. Id. To

20 determine a fee that truly reflects that marketplace, the court must also consider non-lodestar

21 factors that warrant a higher fee in the marketplace, like contingent risk, and then adjust the
22 lodestar accordingly: “The adjustment to the lodestar figure, e.g., to provide a fee enhancement 23
reflecting the risk that the attorney will not receive payment if the suit does not succeed, … is 24
intended to approximate market-level compensation for such services, which typically includes a 25 26 premium for the risk of nonpayment or delay in payment of attorney fees.” Id. (emphasis
27 added). This is not a “bonus;” rather, it “constitutes earned compensation; unlike a windfall, it is

28 neither unexpected nor fortuitous.” Id.

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1

In the instant case, these factors compel an enhancement of Plaintiffs’ lodestar in order to

2 arrive at a reasonable attorneys’ fee that conforms to marketplace standards.

3

1. The Substantial Risk Taken by Plaintiffs’ Counsel Supports

4

A Lodestar Enhancement.

5

As we have shown, Ketchum recognizes that in the legal marketplace, an attorney who

6 takes a significant risk, i.e., whose compensation is dependent on success, should and does expect

7 a higher fee than an attorney who is paid a market rate as the case goes along, win or lose. 24

8 Cal.4th at 1138. Fee awards that fail to take that risk into account do not reflect the legal

9 marketplace, creating a disincentive for competent attorneys to accept public interest cases:
10

11

The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights

12

… into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis.

13

The economic rationale for fee enhancement in contingency cases has been

14

explained as follows: "A contingent fee must be higher than a fee for the same legal services paid as they are performed. … " (Posner, Economic Analysis of Law

15

(4th ed. 1992) pp. 534, 567.) "A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he

16

is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases." (Leubsdorf, The Contingency

17

Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.

18 24 Cal.4th at 1132-1133 (emphasis added).

19

To determine the “market value” of counsel’s services, the court “must take into

20 consideration that any compensation has been deferred ... [that it has] substantially precluded

21 other work during that extended period, ...; and that a failure to fully compensate for the
22 enormous risk in bringing even a wholly meritorious case would effectively immunize large or
23 politically powerful defendants from being held to answer for Constitutional deprivations,
24
25 resulting in harm to the public.” Horsford v. The Board of Trustees of California State
26 University, 132 Cal.App.4th, 399-400, 33 Cal. Rptr. 3d 644 (2005) (emphasis added).

27

The Horsford court explained that under California law, “the contingent and deferred

28

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1 nature of the fee award in a civil rights or other case with statutory attorney fees requires that the

2 fee be adjusted in some manner to reflect the fact that the fair market value of legal services
3 provided on that basis is greater than the equivalent noncontingent hourly rate.” 132 Cal. App. 4th 4
at 394-395 (emphasis added). 5
The principal risk that must be compensated is the risk of not prevailing at all. See 6 7 Graham v. DaimlerChrysler, 34 Cal.4th 556, 583 (2004) As Horsford explains, “the focus is on
8 the fact that litigation is fraught with uncertainty and even the most scrupulous attorney will ‘win

9 some and lose some,’ as the saying goes. …. there is…a great element of contingency in any fee

10 system that rewards only attorneys for prevailing parties.” 132 Cal. App. 4th at 400, n. 11. The
11 Court also must consider, however, the risk of prevailing but not recovering a fee award. See
12 Graham, 34 Cal.4th at 583 (noting risk involved in proving elements of § 1021.5).
13 Here, even though Plaintiffs believed their case was strong, there was a substantial risk
14
15 that they would not prevail on the merits, for any of a number of reasons. See Bien Decl., ¶ 4. In

16 the legal marketplace, an attorney deciding whether to take this case for purely financial reasons,

17 given the alternative of non-contingent work at market rates, would not take it unless he or she

18 could expect a fee that was at least twice the non-contingent rate if the case was successful. Bien

19 Decl., ¶¶ 3-5; Pearl Decl., ¶¶ 12-15. See also Sturdevant Decl., ¶ 11; Sobel Decl. (Local 10 Dkt.

20
No. 82) ¶¶ 14-18 21

22

Given Defendant’s vehement opposition, there also was a great risk that even though

23 Plaintiffs had accomplished so much, they might be denied any fees for their work. Haddad 2d

24 Supp. Decl. ¶ 4. See Graham, 34 Cal.4th at 583 (recognizing that some fee motions are riskier

25 than others). In the legal marketplace, this type of risk also commands a higher fee than a non-
26 contingent fee paid, win or lose. Sturdevant Decl., ¶ 11; Bien Decl., ¶¶ 3-5; Pearl Decl., ¶¶ 13-14. 27
Under California law, any fee award must take this marketplace reality into account. 28

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Case3:03-cv-02961 Document185 Filed08/07/06 Page29 of 32

1

This economic reality of contingent fee cases has been recognized repeatedly in this

2 District. In Crommie, for example, a two-plaintiff age discrimination action, this District Court

3 determined that a reasonable fee required a 2.0 multiplier, based on such factors as contingent

4 risk, results achieved, the difficulties inherent in such cases, and the public interest value of the
5 case. 840 F.Supp. at 726. That enhancement was affirmed by the Ninth Circuit. 67 F.3d at 1479.
6

7

Likewise, in Chabner v. United of Omaha Life Ins. Co., 1999 U.S.Dist.LEXIS 16552

8 (N.D. Cal. 1999), a challenge to discriminatory life insurance pricing, the court determined that a

9 reasonable fee under California law in must include a 2.0 lodestar enhancement. That

10 enhancement also was affirmed by the Ninth Circuit. 225 F.3d 1042, 1053 fn. 11 (9th Cir. 2000).
11 See also Homes Not Jails v. City of San Francisco (Haddad Decl., Exh. U) (1.25 multiplier based,
12 inter alia, on contingent risk).
13 These marketplace realities are present here as well. Had Plaintiffs’ counsel not obtained
14
15 these settlements, all of the effort that Plaintiffs’ counsel spent on this case would have gone

16 uncompensated. Haddad Decl., ¶ 11; Haddad 2d Supp. Decl. ¶ 4. A fee that compensates them as

17 if they had represented fee-paying clients, win or lose, simply does not comport with basic

18 marketplace principles. Sturdevant Decl., ¶ 11; Pearl Decl., ¶¶ 12-14. Instead, it seriously
19 undervalues their work. See Ketchum, 24 Cal.4th at 1132-1133. A modest enhancement is 20
required here to compensate Plaintiffs’ attorneys for the great risk they took to vindicate not only 21
22 the Plaintiffs’ but the public’s fundamental rights. See Greene v. Dillingham Const., N.A., 101
23 Cal.App.4th 418, 428 (2002)(trial court must consider contingent risk).

24

Additionally, H&S advanced all case costs for their clients, who were without the means to

25 pay for their own costs. Haddad Decl. ¶ 11; Haddad 2d Supp. Decl. ¶ 4. While risking their own
26 money to finance this case, along with the possibility of non-payment for their many hours of 27
work, handling this case also resulted H&S having to turn away other work. Haddad Decl. ¶ 31; 28

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Case3:03-cv-02961 Document185 Filed08/07/06 Page30 of 32

1 Haddad 2d Supp. Decl. ¶ 4.

2

2. The Efficiency By Which the Settlement Was Achieved Supports a

3

Lodestar Enhancement

4

Under California law, a lodestar enhancement also is appropriate if counsel have shown

5 exceptional efficiency in obtaining an exceptional result. See Graham, 34 Cal.4th at 582. In this

6 case, the Coles Plaintiffs’ counsel have shown just such exceptional efficiency: they have
7 vindicated the public’s critical rights with a minimum expenditure of hours, consistent with a
8 public policy that favors settlement of serious disputes without sacrificing the interests of the
9 clients or the public. Lealao v. Beneficial California, 82 Cal.App.4th 19, 52 (2000). The results
10
11 they have achieved are exceptional as well: each Plaintiff received a settlement significantly

12 better than Defendants’ offers. And, Plaintiffs’ counsel prepared these four Plaintiffs’ damages

13 claims up to six weeks before trial involving 35 depositions, liability and damages experts on both

14 sides, thousands of pages of documents, and many hours of videotape, in only 719.5 hours.

15 3. The Public Interest Value of Plaintiffs’ Lawsuit Warrants

16

Enhancement of the Lodestar

17

A third factor justifying enhancement is the public interest served by Plaintiffs’ lawsuit.

18 See, e.g., State v. Meyer (1985) 174 Cal.App.3d 1061, 1073 (lodestar enhancement justified by
19 “public service element ... and motivation to represent consumers and enforce laws”); Crommie v. 20
PUC, 840 F.Supp. at 726 (2.0 multiplier justified in part by “public interest value” of plaintiffs’ 21
age discrimination lawsuits). See also Homes Not Jails v. City of San Francisco (Haddad Decl., 22
23 Exh. U) (1.25 multiplier based, inter alia, on public interest value of case).

24

Here, Plaintiffs’ lawsuit not only led to significant changes in the Oakland Police

25 Department’s crowd control policies but also vindicated important First and Fourth Amendment

26 rights. These settlements will have a deterrent effect on other law enforcement officers and
27 agencies who might otherwise violate Constitutional rights.
28

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Case3:03-cv-02961 Document185 Filed08/07/06 Page31 of 32

1

Police misconduct actions are extremely difficult to litigate and to win. Bien Decl. ¶ 4.

2 See, e.g., Oberfelder v. City of Petaluma, 2002 U.S.Dist.LEXIS 8635 (N.D. Cal. 2002), aff’d 67
3 Fed.Appx. 408 (9th Cir. 2003) (1.5 multiplier based primarily on undesirability of police 4
misconduct actions). A public interest enhancement will encourage other attorneys to take on 5
similar cases and deter other law enforcement agencies from engaging in similar practices. See 6 7 Edgerton v. State Personnel Board, 83 Cal.App.4th 1350, 1363 (2000) (affirming 1.5 multiplier
8 based in part on importance of privacy rights vindicated and deterrent effect decision will have on

9 others); Homes Not Jails, supra. Counsel like Plaintiffs’ who are willing to serve the public

10 interest should be compensated accordingly.
11 V. CONCLUSION AND RELIEF REQUESTED
12 The plain intent of both Congress and the California Legislature in enacting fee-shifting
13 statutes as part of their civil rights laws was to encourage competent attorneys to take on difficult
14
15 cases like this one. See, e.g., Walker v. Carnival Cruise Lines, 107 F.Supp.2d 1135, 1145 (N.D.

16 Cal. 2000). If that purpose is to be served, Plaintiffs’ counsel must be fully compensated for their

17 efforts. Plaintiffs respectfully request that this Court grant this motion as set forth above and in

18 Appendix A. 19
Dated: August 7, 2006 20
21
22
23

Respectfully Submitted, HADDAD & SHERWIN MICHAEL J. HADDAD JULIA SHERWIN
/s/_________________________ JULIA SHERWIN

24

LAW OFFICES OF RICHARD M. PEARL

RICHARD M. PEARL 25

26

/s/_________________________

27

RICHARD M. PEARL

28

Attorneys for Plaintiffs

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1

APPENDIX A

2

COLES, ET AL V. CITY OF OAKLAND, ET AL.

3

SUMMARY OF DAMAGES FEE CLAIM

4 MERITS

5 Attorney

Years

Hours

Hourly Rate Lodestar

6 Michael J. Haddad 15

463.10

Julia Sherwin

11

7

256.40

Total Lodestar 8

Total Fee with 1.5 Enhancement 9

$420 400

$ 194,502.00 102,560.00
$297,062.00
$445,593.00

10 FEE RELATED SERVICES

11 Michael J. Haddad 15

Julia Sherwin

11

12 Richard M. Pearl 37

29.00

420

20.30

400

0

525

12,180.00 8,120.00 0

13 Total Lodestar 14 Costs and Out-of-Pocket Expenses 15 TOTAL REASONABLE ATTORNEYS’ FEES 16

$ 20,300.00 $ 19,951.67 $485,844.67

17

18

19

20

21

22

23

24

25

26

27

28

No.: C03-2961 TEH: PLS’ SECOND MOT. FOR REASONABLE COSTS AND ATTYS’ FEES (RE: DAMAGES CLAIMS) 26

 
 Case3:03-cv-02961 Document204 Filed01/04/07 Page1 of 29

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5 SRI LOUISE COLES, et al.,

6

Plaintiffs,

7

v.

8 CITY OF OAKLAND, et al.,

9

Defendants.

NO. C03-2961 TEH
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR ATTORNEYS’ FEES AND COSTS

10

11

12

This matter came before the Court on Thursday, September 7, 2006, on Plaintiffs’

13 motions for attorneys’ fees and costs.1 After careful consideration of the parties’ written and

14 oral arguments, supporting documentation, and the record herein, the Court GRANTS IN

15 PART and DENIES IN PART Plaintiffs’ motions as discussed below.

16

17 BACKGROUND

18

This case arises from an April 7, 2003 antiwar demonstration at the Port of Oakland

19 during which Plaintiffs Sri Coles, Ron Smith, Jennifer Hansen, Dave Telles, Scott Bohning,

20 and Lindsay Parkinson allege that Oakland Police Officers used excessive force against

21 them. Plaintiffs sought injunctive relief and damages for alleged violations of their First,

22 Fourth, and Fourteenth Amendment rights under the United States Constitution, as well as

23 violations of various California constitutional and statutory provisions. This Court

24 consolidated this case for settlement and pretrial purposes with Local 10, International

25 Longshore and Warehouse Union, et al., v. City of Oakland, et al., No. C03-2962 TEH

26 (hereinafter “Local 10”), a case with similar claims involving the same demonstration.

27 1Plaintiffs filed two separate motions: one for work performed on Plaintiffs’ injunctive
28 relief claims and the second for work on Plaintiffs’ damages claims.

Case3:03-cv-02961 Document204 Filed01/04/07 Page2 of 29

United States District Court For the Northern District of California

1

On December 28, 2004, the Court filed an order approving settlement of the injunctive

2 relief claims in both this case and Local 10. The settlement included a new Oakland Police

3 Department crowd control policy. It also provided that the parties would attempt to agree on

4 a reasonable award of attorneys’ fees for work on Plaintiffs’ injunctive relief claims, but that

5 Plaintiffs could file a motion with this Court if the parties were unable to reach agreement.

6

Plaintiffs in both this case and Local 10 were unable to resolve their claims for

7 attorneys’ fees and subsequently filed fee motions in May 2005. On September 27, 2005,

8 this Court granted in part and denied in part both motions. The Court found that Plaintiffs

9 were entitled to attorneys’ fees and costs associated with their claims for injunctive relief and

10 referred the parties to Magistrate Judge James Larson for a settlement conference regarding

11 the amount of fees and costs to be recovered. Sept. 27, 2005 Order Granting in Part &

12 Denying in Part Pls.’ Mots. for Attorneys’ Fees (hereinafter “Sept. 27, 2005 Order”).

13

Plaintiffs’ damages claims proceeded separately from their injunctive relief claims.

14 After three unsuccessful settlement conferences, Defendants made offers of judgment to

15 Plaintiffs in February 2005 pursuant to Federal Rule of Civil Procedure 68. Haddad 2d

16 Suppl. Decl. ¶ 18. On March 2, 2005, Plaintiff Telles accepted Defendants’ Rule 68 offer for

17 $8500, inclusive of attorneys’ fees and costs related to his damages claims. Haddad 3d

18 Suppl. Decl. ¶ 22 & Ex. G at 4-5. None of the other six Plaintiffs accepted Defendants’ Rule

19 68 offers, which Defendants withdrew on March 10, 2005. Haddad 2d Suppl. Decl. ¶ 18;

20 Haddad 3d Supp. Decl. Ex. B.

21

However, Plaintiffs all ultimately settled their damages claims with Defendants.

22 Plaintiff Coles settled her claims on November 28, 2005, for $210,000, inclusive of

23 attorneys’ fees and costs related to her damages claims. Haddad 2d Supp. Decl. ¶ 16. On

24 December 14, 2005, less than six weeks prior to the January 24, 2006 trial date, Plaintiffs

25 Bohning, Hanson, Parkinson, and Smith settled for $30,000, $10,000, $31,250, and $48,000,

26 respectively, exclusive of attorneys’ fees and costs. Id. ¶ 16 & Ex. F. All plaintiffs

27 in Local 10 also settled their damages claims prior to trial.

28

2

Case3:03-cv-02961 Document204 Filed01/04/07 Page3 of 29

United States District Court For the Northern District of California

1

With the assistance of Magistrate Judge Larson, the Local 10 parties reached

2 agreement on the amount of fees and costs to be awarded for work on both injunctive relief

3 and damages claims. However, the parties in this case were not able to reach such

4 agreement, and this motion followed after two unsuccessful settlement conferences with

5 Judge Larson.

6

Plaintiffs’ counsel – Michael Haddad, Julia Sherwin, and Richard Pearl, as special

7 fees counsel – now request a total award of $853,380.03, including work on the merits of

8 Plaintiffs’ injunctive relief and damages claims, as well as work in seeking attorneys’ fees on

9 both sets of claims. Plaintiffs seek a total of $357,375.36 for work related to their injunctive

10 relief claims as follows: a lodestar on the merits of $124,704, with a requested 1.5

11 enhancement (for a total of $187,056); a lodestar on fees up until the September 27, 2005

12 order of $97,531.25, with a requested 1.1 enhancement (for a total of $107,284.37); a

13 lodestar on the remaining fee-related work of $38,446.25; $13,290.68 in costs; and post-

14 judgment interest in the amount of $11,290.06. On the damages claims of Plaintiffs

15 Bohning, Hanson, Parkinson, and Smith, which settled exclusive of fees and costs, Plaintiffs

16 seek a total of $496,004.67 as follows: a lodestar on the merits of $297,062.00, with a

17 requested 1.5 enhancement (for a total of $445,593.00); a lodestar on fees of $30,460; and

18 $19,951.67 in costs.

19

20 DISCUSSION

21 I. Entitlement to Fees and Costs

22

A.

Undisputed Issues: Entitlement for Injunctive Relief Claims and

23

Entitlement Under Federal Law for Damages Claims

24

This Court has already ruled that Plaintiffs are entitled to reasonable attorneys’ fees

25 and costs under both federal and state law for work related to Plaintiffs’ injunctive relief

26 claims. Sept. 27, 2005 Order at 10. Defendants also do not dispute that Plaintiffs are entitled

27 to fees and costs on their damages claims under federal law.

28

3

Case3:03-cv-02961 Document204 Filed01/04/07 Page4 of 29

United States District Court For the Northern District of California

1

B.

Disputed Issue: Entitlement Under State Law for Damages Claims

2

However, Defendants argue that Plaintiffs are not entitled to attorneys’ fees and costs

3 under state law for work done on Plaintiffs’ damages claims. This is significant because, as

4 discussed below, state law allows for a multiplier on fee awards, while federal law does not.

5

Plaintiffs first contend that they are entitled to fees and costs under California Code of

6 Civil Procedure section 1021.5, a primary purpose of which is to encourage lawsuits that

7 enforce strong public policies and benefit a large class of persons where “without some

8 mechanism authorizing the award of attorneys fees, [these] private actions . . . will as a

9 practical matter frequently be infeasible.” Woodland Hills Residents Ass’n v. City Council,

10 23 Cal. 3d 917, 933 (1979). The statute provides that:

11

A court may award attorneys’ fees to a successful party . . .

in any action which has resulted in the enforcement of an

12

important right affecting the public interest if: (a) a

significant benefit, whether pecuniary or nonpecuniary, has

13

been conferred on the general public or large class of

persons, (b) the necessity and financial burden of private

14

enforcement . . . are such as to make the award appropriate;

and (c) such fees should not in the interest of justice, be paid

15

out of the recovery, if any.

16 Cal. Civ. Proc. Code § 1021.5. Defendants do not contest that Plaintiffs have satisfied

17 prongs (b) and (c) of the statutory requirements, but they do argue that Plaintiffs’ damages

18 claims served only to advance the individual plaintiffs’ economic interests and therefore

19 cannot be said to have resulted in enforcement of an important public right or to have

20 conferred a significant benefit on the general public.

21

Contrary to Defendants’ position, however, the United States Supreme Court has

22 rejected the notion that a “civil rights action for damages constitutes nothing more than a

23 private tort suit benefitting only the individual plaintiffs whose rights are violated. Unlike

24 most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and

25 constitutional rights that cannot be valued in solely monetary terms.” City of Riverside v.

26 Rivera, 477 U.S. 561, 575 (1986). Moreover, the California Supreme Court has similarly

27 held that “a case involving the vindication of Constitutional rights automatically meets the

28 first requirement for § 1021.5.” Press v. Lucky Stores, Inc., 34 Cal. 3d 311, 318 (1983).

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1 Plaintiffs easily satisfy that standard here, as their damages claims were based on allegations

2 that Defendants violated their state and federal constitutional rights to be free from excessive

3 and unreasonable force and their rights to free speech and assembly – undeniably important

4 rights affecting the public interest.

5

Additionally, Defendants’ reliance on Weeks v. Baker & McKenzie, 63 Cal. App. 4th

6 1128 (1998), is misplaced. In that case, a female employee of a private law firm brought a

7 successful sexual harassment claim against her former supervisor. The plaintiff, who did not

8 seek any form of injunctive relief, was awarded both monetary damages and attorneys’ fees

9 under section 1021.5 and the Fair Employment and Housing Act. The appellate court

10 reversed the award of attorneys’ fees under section 1021.5, explaining that section 1021.5

11 “does not authorize an award of fees when the record indicates that the primary effect of a

12 lawsuit was to advance or vindicate the plaintiffs’ personal economic interest.” Id. at 1170.

13 Weeks was thus not entitled to a fee award under that statute because:

14

The notoriety of this case may have brought the issue of

sexual harassment in employment into the public eye, and

15

the verdict may have sent the message that sexual

harassment in the workplace will not be tolerated; however,

16

this action was brought not to benefit the public, but as a

means of vindicating Weeks’ own personal rights and

17

economic interest.

18 Id. at 1170-1171.

19

Unlike Weeks, however, Plaintiffs in this case sought injunctive relief as well as

20 damages, and nothing in the record indicates that Plaintiffs were solely, or even primarily,

21 motivated by their own pecuniary interests in pursuing their damages claims. In addition, as

22 the Ninth Circuit has explained, an award of civil rights damages based on unlawful conduct

23 by a law enforcement agency serves “the public purpose of helping to protect” both the

24 plaintiff “and persons like him from being subjected to similar unlawful treatment in the

25 future,” which is a significant result achieved for other members of society. Morales v. City

26 of San Rafael, 96 F. 3d 359, 364-365 (9th Cir. 1996). This public benefit does not disappear

27 simply because Plaintiffs’ pecuniary interests were also served as a result of their damages

28 settlements. Indeed, the Ninth Circuit has upheld a trial court’s award of both damages and

5

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1 attorneys’ fees under section 1021.5 to a successful plaintiff claiming age discrimination

2 based in part on the deterrent effect the plaintiff’s claim would have on “other governmental

3 agencies from undertaking similar discriminatory activities in the future.” Crommie v. Cal.

4 Pub. Utils. Comm’n, 840 F. Supp. 719, 722 (N.D. Cal. 1994), aff’d sub nom. Mangold v. Cal.

5 Pub. Utils. Comm’n, 67 F. 3d 1470 (9th Cir. 1995).

6

In light of all of the above, the Court rejects Defendants’ opposition to Plaintiffs’

7 entitlement to attorneys’ fees and costs under section 1021.5. Because Plaintiffs may recover

8 a fee award under that statute, the Court need not and does not decide whether Plaintiffs are

9 also entitled to fees under California Civil Code sections 51.7 and 52.1.

10

11 II. Amount of Fees and Costs: Lodestar Analysis

12

Under both federal and California state law, the amount of a reasonable fee award is

13 determined by multiplying the number of hours reasonably expended in the litigation by a

14 reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Serrano v. Priest,

15 20 Cal. 3d 25, 48 & n. 23 (hereinafter “Serrano III”). However, federal and state law

16 governing attorneys’ fees differ in one significant respect: Under federal law, there is a

17 “strong presumption” that this “lodestar” figure constitutes a reasonable fee award because

18 most relevant considerations are subsumed into this initial calculation, and adjustment to the

19 lodestar will only be appropriate in “rare” or “exceptional” cases. Pennsylvania v. Del.

20 Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564-565 (1986). Under state law, on

21 the other hand, the lodestar may be adjusted based on such factors as the contingent nature of

22 the fee award and the novelty and difficulty of the questions involved. Serrano III, 20 Cal.

23 3d at 49. “Of course, the trial court is not required to include a fee enhancement to the basic

24 lodestar figure for contingent risk, exceptional skill, or other factors, although it retains

25 discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement

26 bears the burden of proof.” Ketchum v. Moses, 24 Cal. 4th 1122, 1138 (2001). In addition,

27 when determining whether to adjust the lodestar, “a trial court should not consider these

28

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1 factors to the extent they are already encompassed within the lodestar”; to do otherwise

2 would result in impermissible double-counting. Id.

3

A.

Reasonable Hourly Rate

4

When assessing a reasonable hourly rate under both federal and state law, a court must

5 consider the prevailing market rate charged by attorneys of comparable experience, expertise,

6 and skill for comparable work. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); Children’s

7 Hosp. & Med. Ctr. v. Bonte, 97 Cal. App. 4th 740, 783 (2002). Declarations submitted by

8 fee applicants of the “prevailing market rate in the relevant community . . . [are] sufficient to

9 establish the appropriate [billing] rate for lodestar purposes.” Davis v. City & County of San

10 Francisco, 976 F.2d 1536, 1547 (9th Cir. 1992) (quoting Bouman v. Block, 940 F. 2d 1211,

11 1235 (9th Cir. 1991) (alterations in original)), vacated in part on other grounds, 984 F.2d

12 345 (9th Cir. 1993). Affidavits regarding “rate determinations in other cases, particularly

13 those setting a rate for the fee applicant, are [also] satisfactory evidence of the prevailing

14 market rate.” United Steelworkers v. Phelps Dodge Corp., 896 F. 2d 403, 407 (9th Cir.

15 1990).

16

In this case, Plaintiffs’ counsel claim different hourly rates for different stages of the

17 litigation. For all work completed on both the merits and fees related to Plaintiffs’ injunctive

18 relief claims through this Court’s September 27, 2005 order, which established Plaintiffs’

19 entitlement to fees on such claims, Mr. Haddad is claiming an hourly rate of $400,

20 Ms. Sherwin is claiming $380, and Plaintiffs’ special fees counsel, Mr. Pearl, is seeking an

21 hourly rate of $495. For all other work, including work on the injunctive relief claims since

22 September 27, 2005, and all work on Plaintiffs’ damages claims, Plaintiffs’ counsel seek

23 compensation at their 2006 hourly rates: $420 for Mr. Haddad, $400 for Ms. Sherwin, and

24 $525 for Mr. Pearl. The Court addresses each rate request in turn below.

25

1. Injunctive Relief Work Through September 27, 2005

26

Mr. Haddad and Ms. Sherwin have provided ample evidence to support their claimed

27 hourly rates of $400 and $380, respectively, for work performed prior to September 27,

28 2005. Mr. Haddad has over fourteen years of experience and Ms. Sherwin has over ten

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1 years. Both have been involved in a number of civil rights and police misconduct cases and

2 have significant trial experience. Haddad Decl. ¶¶ 4-8; Sherwin Decl. ¶¶ 6-15. In

3 determining their claimed hourly rates, Mr. Haddad and Ms. Sherwin consulted with Mr.

4 Pearl and local attorneys, all of whom are knowledgeable about the market rates charged by

5 Bay Area attorneys of similar skill, experience, and expertise for comparable work. Haddad

6 Decl. ¶ 28; Sherwin Decl. ¶ 31. In addition, they submitted declarations from Mr. Pearl and

7 two local attorneys, both of whom confirmed that the claimed rates are “in line with those

8 charged by comparably experienced Bay Area attorneys for comparable federal litigation.”

9 Bien Decl. ¶ 2; see also Sturdevant Decl. ¶ 9. Mr. Pearl has similarly stated that, based on

10 his review of hourly rates charged by other attorneys in the San Francisco Bay Area and

11 recent fee awards to local attorneys, the “hourly rates claimed by Plaintiffs’ counsel in this

12 case are reasonable.” Pearl Decl. ¶ 9.

13

Mr. Pearl’s claimed hourly rate of $495 is also supported by the two local attorneys

14 who submitted evidence in support of Plaintiffs’ counsel’s hourly rates. Bien Decl. ¶ 2;

15 Sturdevant Decl. ¶ 10. As one of these attorneys stated, “Mr. Pearl is considered by most to

16 be the leading expert on attorneys fees matters in California.” Sturdevant Decl. ¶ 10. Over

17 the last five years, Mr. Pearl has successfully handled four cases in the California Supreme

18 Court involving court-awarded attorneys’ fees, and he is also the author of a leading treatise

19 on attorneys’ fees and other attorneys’ fees practice guides. Pearl Decl. ¶¶ 3-4. Moreover,

20 another judge in this district found Mr. Pearl’s claims hourly rate of $495 to be reasonable in

21 January 2006. Id. ¶ 4.

22

In opposition to Plaintiffs’ counsel’s requested hourly rates, Defendants have

23 submitted a single affidavit as evidence of the prevailing market rate for attorneys in the

24 community. However, the information it provides is limited to the average hourly rates,

25 ranging from $130 to $200, for twenty-three firms that have represented public entities in the

26 Bay Area by defending civil rights lawsuits in state and federal courts. Hickman Decl. ¶¶ 1-2

27 & Ex. 1. Such generalized information is unpersuasive in light of the more specific evidence

28 submitted by Plaintiffs regarding the prevailing market rate in this area. Moreover, “[p]rivate

8

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1 attorneys hired by a government entity to defend excessive force cases are not in the same

2 legal market as private plaintiff’s [sic] attorneys who litigate civil rights cases,” and rates

3 charged by such defense attorneys therefore cannot be used as a starting point in determining

4 a reasonable hourly rate. Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996).

5

Defendants also argue that the reasonable hourly rate for Plaintiffs’ counsel’s work on

6 injunctive relief claims should be determined by reviewing the average hourly rate accepted

7 by Local 10 counsel in settling their attorneys’ fees claims with Defendants. Defendants

8 assert that this average hourly rate is the best measure of the prevailing market rate for the

9 type of work performed by Plaintiffs’ counsel, particularly when Plaintiffs’ counsel and the

10 Local 10 attorneys have comparable experience, skill, and expertise. However, when

11 determining the prevailing market rate, the Court must inquire into the hourly rate charged

12 by an attorney in the community, not the hourly rate that an attorney would accept or agree

13 to as a result of settlement negotiations conducted behind closed doors. See Blum, 465 U.S.

14 at 895 n. 11; Children’s Hosp. & Med. Ctr., 97 Cal. App. 4th at 783. Indeed, the amount a

15 party is willing to accept to settle a dispute is often not the same amount that might have been

16 obtained had litigation continued, nor is it necessarily the amount to which a party is legally

17 entitled. When parties settle, the “agreement reached normally embodies a compromise; in

18 exchange for the saving of cost and elimination of risk, the parties each give up something

19 that they might have won had they proceeded with the litigation.” United States v. Armour &

20 Co., 402 U.S. 673, 681 (1971); Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 577 n.7

21 (2004) (quoting Armour & Co. with approval). Thus, Defendants’ reliance on the amount of

22 attorneys’ fees settled on by Local 10 counsel is inapposite; Plaintiffs’ counsel are entitled to

23 a reasonable hourly rate based on the fair market value of their legal services, not the value

24 received in settlement by other attorneys for comparable services.

25

For all of the above reasons, the Court finds that Mr. Haddad’s, Ms. Sherwin’s, and

26 Mr. Pearl’s requested hourly rates for work performed on injunctive relief claims through

27 September 27, 2005, are reasonable.

28

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1

2. All Other Work

2

Plaintiffs’ counsel seek fees at their 2006 hourly rates for injunctive relief work

3 performed after September 27, 2005, as well as for all work on Plaintiffs’ damages claims:

4 $420, $400, and $525 for Mr. Haddad, Ms. Sherwin, and Mr. Pearl, respectively. The Court

5 addresses each of Defendants’ objections to these hourly rates in turn below.

6

a. Work Performed Prior to Rate Increase

7

Defendants first contend that Plaintiffs’ counsel should not be paid their 2006 hourly

8 rates for work performed prior to this year. Under state fee-shifting statutes, however, a fee

9 applicant may be awarded a lodestar amount reflecting their present hourly rate, rather than

10 the lesser rate applicable when the services were rendered. Graham, 34 Cal. 4th at 584.

11 Awarding fees at the higher rate serves to compensate a fee applicant for delay in receiving

12 payment for services “rendered long in the past[, which] deprives the eventual recipient of

13 the value of the use of the money in the meantime.” Id. (quoting Copeland v. Marshall, 641

14 F.2d 880, 893 (D.C. Cir. 1980)).2

15

In this case, counsel’s work on fees related to Plaintiffs’ injunctive relief claims has

16 spanned approximately one year, with the majority of Ms. Sherwin’s hours occurring in 2005

17 but the majority of Mr. Haddad’s and Mr. Pearl’s hours occurring in 2006. Because the

18 Court does not find that there has been a significant enough delay to justify awarding

19 Plaintiffs’ counsel their current hourly rates for work previously performed, Plaintiffs’

20 counsel will each be compensated at their 2005 hourly rates for work performed in 2005 on

21 fees relating to Plaintiffs’ injunctive relief claims, and at their 2006 hourly rates for work that

22 was actually performed in 2006. Compare, e.g., Gates v. Deukmejian, 987 F.2d 1392, 1407

23 (9th Cir. 1992) (awarding fees at higher rate in part because plaintiffs’ counsel waited over

24 three years for payment).

25

The litigation over Plaintiffs’ damages claims, however, began over three-and-one-

26 half years ago. This is a significant period of time in which Plaintiffs’ counsel has lost the

27

2However, if the lodestar rate is based on a fee applicant’s present hourly rate, then, to

28

avoid double-compensation, such delay should not be considered as a factor in enhancing the lodestar. Id. at 584.

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1 value of the use of money they would have received through investment and interest. In

2 addition, unlike with their injunctive relief work prior to September 27, 2005, Plaintiffs do

3 not seek interest on their damages fee award, which is another mechanism by which counsel

4 may seek compensation for significant delay in the receipt of payment. Graham, 34 Cal. 4th

5 at 583. The Court shall therefore compensate Mr. Haddad and Ms. Sherwin at their 2006

6 hourly rates for all work performed on Plaintiffs’ damages claims, including work done prior

7 to 2006.

8

b. Damages Work Performed by Ms. Sherwin

9

Defendants additionally contend that Ms. Sherwin should be compensated at a rate

10 lower than her current hourly rate for work performed on Plaintiffs’ damages claims because

11 such work, which Defendants characterize as personal injury work, is typically performed by

12 newer associates. Based on hourly rates for associates provided in Plaintiffs’ supporting

13 declarations, Defendants assert that Ms. Sherwin’s damages work should only be

14 compensated at $230 per hour.

15

As explained above, however, courts have rejected the characterization of 42 U.S.C.

16 § 1983 civil rights claims as simply private tort suits. Rivera, 477 U.S. at 575. Moreover,

17 Defendants have cited no authority for awarding a different hourly rate for different types of

18 legal work performed, and the Ninth Circuit has explicitly rejected this argument. Davis, 976

19 F.2d at 1548. Therefore, the Court will not reduce Ms. Sherwin’s hourly rate based on

20 Defendants’ argument that such work is typically performed by less-experienced attorneys.

21

c. Impact of Rate of Inflation

22

Defendants’ final argument against awarding the current hourly rate for work on

23 Plaintiffs’ damages claims is that the requested rates outpace the rate of inflation.3

24 Defendants cite no authority as to what impact the rate of inflation should have on

25 determining a reasonable hourly rate, but it appears on the Court’s own research that inflation

26

3Specifically, Defendants note that “Haddad & Sherwin’s hourly rates, which they

27

assert were $325 and $290 respectively in 2002, are outpacing the rate of inflation by a factor of 3. For example, Mr. Haddad’s rate has increased $90 in four years, or 29%, while the

28

average inflation rate over those four years totals 10%.” Opp’n to Mot. for Fees Re: Damages at 7 n.10 (hereinafter “Damages Opp’n”).

11

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1 may be considered as one factor when determining the reasonableness of requested rates.

2 See Gates v. Rowland, 39 F.3d 1439, 1451 (9th Cir. 1994) (affirming trial court’s decision

3 not to award rate increases where the requested increases “exceeded the rate of inflation and

4 exceeded the rate of increase of other Bay area law firms’ fees”). However, the focus of the

5 rate analysis is to ensure that fees are awarded at “prevailing market rates in the relevant

6 community,” Blum, 465 U.S. at 895, and such rates may be affected by factors other than

7 inflation, such as attorneys’ additional years of experience or changes in the legal market.

8 Upon review of all of the evidence submitted by Plaintiffs’ counsel in support of their fee

9 motion, the Court finds that the claimed hourly rate increases from 2002 to 2006 appear to be

10 in line with the rate increases of other local Bay Area firms. In the absence of any contrary

11 evidence submitted by Defendants, the Court therefore rejects Defendants’ argument that

12 Plaintiffs’ requested hourly rates should be reduced based on the rate of inflation.

13

3. Summary of Reasonable Hourly Rates

14

In sum, the Court finds that the 2005 and 2006 hourly rates requested by Mr. Haddad,

15 Ms. Sherwin, and Mr. Pearl are reasonable. Plaintiffs’ counsel will be compensated at their

16 2005 hourly rates for all work on Plaintiffs’ injunctive relief claims through December 31,

17 2005. For work performed in 2006 on fees relating to Plaintiffs’ injunctive relief claims and

18 all work performed on Plaintiffs’ damages claims, the Court will calculate Plaintiffs’ fee

19 award based on counsel’s 2006 hourly rates. Because awarding fees based on 2006 rates for

20 work performed prior to 2006 serves to compensate counsel for any delay in payment, such

21 delay will not be considered as a factor to enhance the lodestar for the latter categories of

22 work, nor will post-judgment interest be applied to fees claimed on these categories of work.

23

B.

Reasonable Number of Hours

24

Having determined counsel’s reasonable hourly rates, the Court now turns to

25 determining a reasonable number of hours. Under both federal and state law, an award of

26 attorneys’ fees should include compensation for all hours reasonably spent on the litigation,

27 absent circumstances rendering an award unjust. Hensley, 461 U.S. at 429; Serrano v.

28 Unruh, 32 Cal. 3d 621, 624, 639 (1982) (hereinafter “Serrano IV”). This includes

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1 compensation for hours reasonably spent on establishing and defending a fees claim. Davis,

2 976 F.2d at 1544; Serrano IV, 32 Cal. 3d at 632-633, 639.

3

“The fee applicant bears the burden of documenting the appropriate hours expended in

4 the litigation and must submit evidence in support of those hours worked.” Gates, 987 F. 2d

5 at 1397. Because attorneys are officers of the court, verified time statements of an attorney

6 seeking fees are “entitled to credence in the absence of a clear indication the records are

7 erroneous.” Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal. App. 4th 359, 396

8 (2005). However, a trial court may consider reducing the number of hours claimed when an

9 applicant’s “documentation of hours is inadequate.” Hensley, 461 U.S. at 433. For example,

10 although a fee applicant is not required to document in great detail how every minute of his

11 time was spent, counsel should at least “identify the general subject matter of the litigation.”

12 Id. at 437 n.12. When making a fee request, an applicant should also exercise billing

13 judgment by excluding from the request all hours that are “excessive, redundant, or otherwise

14 unnecessary.” Id. at 434. The trial court must carefully review the fee applicant’s

15 documentation of hours expended to ensure that there is no unnecessary “‘padding’ in the

16 form of inefficient or duplicative efforts that are not subject to compensation.” Ketchum, 24

17 Cal. 4th at 1132.

18

The party opposing a fee application bears the burden of submitting specific

19 objections to rebut an applicant’s claim for hours reasonably expended. Gates, 987 F.2d at

20 1397-1398. Meeting this burden requires submission of “evidence to the district court

21 challenging the accuracy and reasonableness of the hours charged or the facts asserted by the

22 prevailing party in its submitted affidavits.” Id. Conclusory and unsubstantiated objections

23 are insufficient to warrant reducing a fee request. Id.

24

1. Injunctive Relief Work

25

For the injunctive relief portion of this lawsuit, Mr. Haddad claims 392.75 hours,

26 including 218.85 hours on the merits and 173.9 hours on fees, and Ms. Sherwin claims 153.5

27 hours, including 97.8 hours on the merits and 55.7 hours on fees. These figures reflect a

28 15.9-hour reduction for Mr. Haddad and a 5.85-hour reduction for Ms. Sherwin based on

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1 counsel’s exercise of billing judgment. In addition, Mr. Pearl, Plaintiffs’ special fees

2 counsel, claims 87.6 hours for work on fees.

3

Defendants, who contend that the total number of hours claimed by Plaintiffs’ counsel

4 is unreasonably excessive and duplicative, raise several specific objections to the number of

5 claimed hours. The Court addresses each objection in turn below.

6

a. Documentation of Hours

7

First, Defendants contend that counsel have not adequately documented the hours

8 spent on the merits of Plaintiffs’ injunctive relief claims “in a manner that will enable a

9 reviewing court to identify distinct claims.” Hensley, 461 U.S. at 437. Specifically,

10 Defendants assert that over one-half of Mr. Haddad’s billing entries and over two-thirds of

11 Ms. Sherwin’s billing entries make no reference to “policy work.” Defendants argue that

12 these entries, adding up to 193.15 of the 316.35 total claimed hours spent on the merits of

13 Plaintiffs’ injunctive relief claims, should be compensated at a rate of twenty percent – a

14 figure that Defendants appear to have arrived at arbitrarily.

15

Defendants correctly observe that Plaintiffs’ counsel did not specifically reference

16 “policy work” in the detailed descriptions of their time entries and that this Court previously

17 expressed concern regarding the level of detail in counsel’s time entries. See Sept. 27, 2005

18 Order at 12. However, the Court’s primary concern was whether the documentation was

19 sufficient to allow the Court to determine “whether the claimed hours exclude all work not

20 related to Plaintiffs’ injunctive and declaratory relief claims.” Id. This concern was

21 alleviated when Plaintiffs’ counsel brought two separate motions – one for the injunctive

22 relief claims and one for the damages claims – and submitted separate billing records for

23 work done on Plaintiffs’ injunctive relief claims and Plaintiffs’ damages claims. Based on

24 counsel’s representations as officers of the court, as well as the chronology of the time

25 claimed and lack of specific objections by Defendants, this Court finds Plaintiffs’

26 documentation of hours to be adequate. Moreover, counsel’s entitlement to fees for work

27 done on Plaintiffs’ damages claims has now been established; thus, even if some time

28

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1 claimed for injunctive relief work was actually spent on damages, such misclassification of

2 hours would have no significant consequence on Plaintiffs’ ultimate fee award.

3

b. Internal Discussions and Plaintiffs’ Counsel’s Contributions

4

to Development of Crowd Control Policy

5

Second, Defendants contend that it is “simply unfair to ask the City to reimburse

6 multiple lawyers charging very high hourly rates for having endless discussions among

7 themselves on the progress of policy negotiations.” Opp’n to Pls.’ Mot. for Fees Re: Decl. &

8 Inj. Relief at 10 (hereinafter “Inj. Relief Opp’n”). Defendants again argue that this Court

9 should only compensate Plaintiffs’ counsel at a rate of twenty percent for what Defendants

10 calculate as 65.2 total hours counsel spent in “endless discussions among themselves” and

11 with Local 10 counsel.

12

However, the Court finds Defendants’ calculations to be inaccurate and unreliable.

13 Defendants have submitted two time summaries based on the billing records submitted with

14 Plaintiffs’ original fee motion, but these summaries list two different numbers of hours

15 purportedly spent on internal communications by Mr. Haddad and Ms. Sherwin. Compare

16 App. A to Opp’n to Original Mot. for Fees (hereinafter “Original Opp’n”) (listing 50.45

17 hours for Mr. Haddad and 17.80 hours for Ms. Sherwin for internal communications) with

18 Fox Decl. Ex. B (listing 43.25 hours for Mr. Haddad and 21.95 hours for Ms. Sherwin). In

19 addition, many of the entries used in Defendants’ calculations include other tasks in their

20 descriptions. For example, Defendants included Mr. Haddad’s October 25, 2004 time entry

21 in the first time summary of internal discussions. App. A to Original Opp’n. While the time

22 entry totals 1.1 hours, it includes both a telephone call to Local 10 co-counsel and an e-mail

23 sent to Mr. Haddad’s clients regarding the negotiated crowd control policy. Haddad 2d

24 Suppl. Decl. Ex. A at 11. There is no discussion of how, or even if, Defendants apportioned

25 the 1.1 hours in this time entry to ensure that only time spent on internal discussions was

26 included in Defendants’ final calculations.4

27

4Defendants filed a supplemental declaration on September 13, 2006, in an attempt to

28

explain how time entries were categorized. This untimely declaration will not be considered by the Court. Moreover, even if the Court were to consider this declaration, it appears to be

15

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1

Claiming a disproportionate number of hours for communication between attorneys

2 may indicate unreasonable overstaffing such that a reduction in hours is appropriate. Here,

3 however, the Court has conducted an independent review of the time spent by Plaintiffs’

4 counsel in internal discussions and determined that this time totaled only approximately ten

5 percent of the total time Plaintiffs’ counsel spent on the merits of the injunctive relief claims.

6 This percentage does not appear unreasonable to the Court, and the Court therefore will not

7 reduce Plaintiffs’ claimed number of hours based on excessive hours claimed for internal

8 communications.

9

Defendants’ argument regarding internal communications also reflects Defendants’

10 broader position that Plaintiffs’ counsel contributed only minimally to the development of the

11 new crowd control policy that resulted in settlement of the injunctive relief claims in this

12 case and Local 10, and that Plaintiffs’ claimed number of hours must be reduced accordingly

13 based on duplication of effort. When analyzing whether time spent by multiple attorneys

14 represents unnecessarily duplicative efforts, courts seek to determine whether the hours

15 claimed by each attorney reflect distinct contributions of each attorney to the case. Davis,

16 976 F.2d at 1544.

17

Defendants’ perception in this case appears to result primarily from the lead

18 negotiating role taken by Alan Schlosser, co-counsel in the Local 10 case, on behalf of

19 plaintiffs in both cases. However, as Mr. Haddad persuasively explained at oral argument,

20 Defendants’ counsel was not privy to the behind-the-scenes efforts of Plaintiffs’ counsel.

21 The Court does not find it unreasonable for plaintiffs in this case and Local 10 to rely on a

22 lead negotiating voice on the crowd control policy, and doing so does not mean that no other

23 attorneys made meaningful contributions outside the actual settlement negotiations. Indeed,

24 other than a general objection regarding time spent on internal communications, Defendants

25 have pointed to no specific time entries that Defendants believe represent duplicative work

26 by Plaintiffs’ counsel and Mr. Schlosser or other counsel for Local 10. Absent such specific

27

28

incomplete; for example, it does not apportion the 1.1 hours for Mr. Haddad’s October 25, 2004 entry between internal communications and time spent corresponding with clients.

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1 objections, the Court finds no reason to reduce Plaintiffs’ claimed number of hours based on

2 Defendants’ unsubstantiated argument regarding duplication of effort.

3

c. Communication with Expert Consultants

4

Defendants next contend that the 5.3 hours Plaintiffs’ counsel spent communicating

5 with two expert consultants, Lou Reiter and Larry Danaher, are not compensable because

6 Plaintiffs never revealed the identity of their experts or “identified ideas, opinions, or

7 suggested language from said expert[s].” Inj. Relief Opp’n at 10-11. However, Plaintiffs’

8 experts are identified in the records submitted by Plaintiffs, and Plaintiffs served their expert

9 reports on Defendants. E.g., Haddad 2d Suppl. Decl. Ex. A at 5 (January 13, 2004 entry for

10 Mr. Haddad referring to “experts Reiter and Danaher”); Haddad 3d Suppl. Decl. ¶¶ 20-21 &

11 Exs. E-F (expert reports by Reiter and Danaher served on Defendants). In addition, the

12 Court finds that 5.3 hours spent consulting with two experts is reasonable and representative

13 of time ordinarily billed to a client.

14

d. Fees Work

15

Defendants also raise a public-policy objection to the amount of time Plaintiffs’

16 counsel claims for work on fees related to injunctive relief. Defendants warn that if Plaintiffs

17 were to obtain their full award for time spent on fees work, civil rights plaintiffs’ counsel

18 would be encouraged to litigate their cases heavily, refuse any compromise of fees

19 demanded, and pursue a “second major litigation” to obtain maximum fees, in contravention

20 of the Supreme Court’s holding in Hensley, 461 U.S. at 437. More particularly, Defendants

21 argue that since Local 10 counsel settled their attorneys’ fees claims for significantly less

22 than they had originally requested, this Court should find that Plaintiffs’ counsel are

23 unreasonable for refusing to do the same.

24

However, one of the primary purposes of the private attorney general doctrine, as

25 codified in section 1021.5 of the California Code of Civil Procedure, is to encourage private

26 parties to bring suits that enforce strong public policies and benefit the public interest when

27 they would otherwise be economically infeasible. Woodland Hills Residents Ass’n, 23 Cal.

28 3d at 933. This purpose would “often be frustrated, sometimes nullified, if awards are

17

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United States District Court For the Northern District of California

1 diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee

2 claim.” Serrano IV, 32 Cal. 3d at 632.

3

Plaintiffs’ counsel seek a total of 317.2 hours for time spent on fees for work on

4 Plaintiffs’ injunctive relief claims, which is slightly more than the 316.65 hours spent on the

5 merits of such claims. On its face, the number of hours claimed for fees work may therefore

6 appear unreasonable. Until the Court issued its September 27, 2005 order, however,

7 Defendants vigorously disputed whether Plaintiffs’ counsel were entitled to attorneys’ fees

8 for Plaintiffs’ injunctive relief claims, and nearly seventy-five percent of Plaintiffs’ counsel’s

9 total time spent on fees occurred prior to the Court’s issuance of that order. Defendants

10 complain that such time was spent unreasonably, but they fail to identify any specific time

11 entries representing work that was unnecessary to respond to Defendants’ strong and

12 comprehensive opposition to Plaintiffs’ fee request. Defendants cannot be allowed to

13 “litigate tenaciously and then be heard to complain about the time necessarily spent by the

14 plaintiff in response.” Serrano IV, 32 Cal. 3d at 638 (citations omitted).

15

Moreover, this Court cannot speculate on why counsel in the Local 10 case opted to

16 settle their claims for fees, and there is no reason to believe that they chose to settle their fee

17 requests because they believed that their initial fee requests were unreasonable. That is,

18 Defendants have not established that Plaintiffs’ counsel acted unreasonably in rejecting

19 Defendants’ settlement offers after the Court found that Plaintiffs were entitled to fees. If the

20 Court were to punish Plaintiffs’ counsel for refusing to settle their fee claims with

21 Defendants, this could have the perverse effect of encouraging losing defendants to oppose

22 fee claims endlessly, or to repeatedly provide low-ball offers of settlement, in an effort to

23 force successful plaintiffs to settle for a fee award that does not adequately compensate them

24 for time reasonably spent on the litigation. Such an outcome would directly contravene the

25 purpose of section 1021.5 and other fee-shifting statutes. Consequently, the Court does not

26 find it appropriate to reduce the number of hours Plaintiffs claim for fee-related work; while

27 the number of such hours is significant, particularly in comparison with the number of hours

28

18

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United States District Court For the Northern District of California

1 spent on the merits, that does not mean that it is unreasonable in light of the highly disputed

2 nature of Plaintiffs’ fee request.

3

e. Mr. Pearl’s Hours

4

Finally, Defendants contend that Plaintiffs’ special fees counsel, Mr. Pearl, should not

5 be compensated for all time claimed because one of the declarations he filed contained

6 boilerplate language that mimicked a declaration he filed in a prior federal case. In essence,

7 Defendants argue that Mr. Pearl is duplicating his own work performed in a previous case

8 and should therefore not be awarded the full amount of fees requested.

9

However, Mr. Pearl attests that he did not bill for time spent preparing material

10 borrowed from other cases and, instead, that he has only claimed time for preparing

11 testimony unique to this case. Pearl 3d Suppl. Decl. ¶ 4. Defendants have pointed to no

12 evidence to the contrary, and the Court does not find Mr. Pearl’s claimed 87.6 hours over the

13 course of several rounds of briefing and two settlement conferences to be unreasonable.

14

2. Damages Work

15

For the damages portion of this lawsuit, Mr. Haddad claims 492.1 hours, including

16 463.1 hours on the merits and 29.0 hours on fees, and Ms. Sherwin claims 302.1 hours,

17 including 256.4 hours on the merits and 45.7 hours on fees. These figures reflect a 14.0-hour

18 reduction for Mr. Haddad and a 17.3-hour reduction for Ms. Sherwin based on counsel’s

19 exercise of billing judgment. Mr. Pearl does not claim any time for work spent on Plaintiffs’

20 damages claims. The Court addresses Defendants’ three objections to these claimed hours in

21 turn below.

22

a. Common Work for All Six Plaintiffs

23

Defendants first contend that time spent on common work, or work that Plaintiffs’

24 counsel would have performed whether they represented only one plaintiff or all six

25 plaintiffs, should be reduced to prevent double recovery by Plaintiffs’ counsel. Defendants

26 correctly observe that the damages settlements entered into by Plaintiffs Coles and Telles

27 included attorneys’ fees and costs. Defendants therefore recommend that “common work”

28 hours, such as the approximately 77.1 hours Mr. Haddad spent on Plaintiffs’ summary

19

Case3:03-cv-02961 Document204 Filed01/04/07 Page20 of 29

United States District Court For the Northern District of California

1 judgment motion that raised issues common to all Plaintiffs, should be reduced by either one-

2 third or one-half: one-third if the Court considers that the fractional share of common work

3 spent on two out of six Plaintiffs has already been compensated, or one-half if the Court

4 considers that the amounts received by Plaintiffs Coles and Telles in settling their damages

5 claims is approximately half of the total amount received by all six Plaintiffs.

6

Plaintiffs oppose any reduction to the time claimed and argue that the claimed hours

7 do not include over 196 hours spent on work “related to the damages claims of Sri Coles only

8 . . . [and] related only to Dave Telles’ damages claims.” Haddad 3d Supp. Decl. ¶¶ 6-7

9 (emphasis added); see also Haddad 2d Suppl. Decl. ¶ 11; Sherwin Suppl. Decl. ¶ 15.

10 Mr. Haddad made a similar representation at the motion hearing. Plaintiffs’ assertions,

11 however, fail to address whether the 196 hours already deducted includes work that was

12 common to all Plaintiffs’ damages claims. Moreover, although some reductions can be

13 found at the end of some of the time entries including common work, Plaintiffs’ reductions

14 are both inconsistent and incomplete; reductions cannot be found at the end of every such

15 entry and do not always, or even often, include proportional reductions to the common work

16 for both Ms. Coles and Mr. Telles. Consequently, the Court concludes that Plaintiffs’

17 deduction of 196 hours does not account for time spent on common work and, instead, more

18 likely accounts only for time spent on claims related solely to Ms. Coles and Mr. Telles.

19 Because the Coles and Telles settlements included attorneys’ fees and costs, it would thus be

20 improper to allow recovery for all claimed time spent on common work; to do so would

21 impermissibly allow Plaintiffs to be paid twice for the portion of such work attributable to

22 Ms. Coles and Mr. Telles.

23

To determine an appropriate reduction in hours, the Court conducted an independent

24 review of Plaintiffs’ counsel’s time records as follows: First, the Court calculated the total

25 number of hours spent on common work by Mr. Haddad and Ms. Sherwin through March 2,

26 2005, the date Mr. Telles agreed to settle his damages claims. If a time entry contained no

27 indication of which Plaintiff the work related to, the Court considered the entry to be related

28 to all Plaintiffs, including Ms. Coles and Mr. Telles. If an entry indicated work specifically

20

Case3:03-cv-02961 Document204 Filed01/04/07 Page21 of 29

United States District Court For the Northern District of California

1 related to any of the remaining four Plaintiffs and also included work that was common to all

2 Plaintiffs, the Court calculated the total number of hours spent on common work by

3 proportionally reducing the total number of hours based on the number of activities identified

4 in the time entry.5 The Court then reduced the total number of hours spent on common work

5 through March 2, 2005 by one-third, accounting for Plaintiffs’ compensation for work done

6 on two out of six Plaintiffs’ damages claims. As a result of these calculations, Mr. Haddad’s

7 82.75 common work hours through March 2, 2005, shall be reduced by 27.6 hours, and

8 Ms. Sherwin’s 38.65 hours shall be reduced by 12.9 hours.

9

The Court performed a similar calculation to determine the amount of time spent on

10 common work between March 3, 2005, and November 28, 2005, the date on which

11 Ms. Coles settled her damages claims. Because only five Plaintiffs remained at that time, the

12 Court reduced the number of hours for common work by only one-fifth, since Plaintiffs’

13 counsel have only been compensated for work done on one out of five remaining Plaintiffs’

14 damages claims. Based on the Court’s calculations, Mr. Haddad’s 325.2 common work

15 hours between March 3 and November 28, 2005, shall be reduced by 65.0 hours, and

16 Ms. Sherwin’s 96.4 hours shall be reduced by 19.3 hours.

17

Combining the above deductions, Mr. Haddad’s time spent on the merits of Plaintiffs’

18 damages claims shall be reduced by 92.6 hours, and Ms. Sherwin’s time shall be reduced by

19 32.2 hours. These reductions account for the proportion of time spent on common work for

20 which counsel has already been compensated by the Coles and Telles settlements.

21

b. Hours Spent on the Merits After June 2005

22

Defendants also contend that all time claimed after June 2005 for work on the merits

23 of Plaintiffs’ damages claims was unnecessary and excessive because, by that time, seventy-

24

5For example, on June 3, 2004, Mr. Haddad claimed 1.6 hours for three activities:

25

“Draft Second Amended Complaint, file and serve; email to Julie Houk re: malicious prosecution; research re: supervisory liability.” Haddad 2d Suppl. Decl. Ex. C at 2. Plaintiff

26

Lindsay Parkinson was the only Plaintiff whose damages claim was based in part on malicious prosecution, so the e-mail to Julie Houk was attributable solely to Plaintiff

27

Parkinson. The Court therefore reduced the 1.6 hours by one-third, leaving a total of 1.07 hours spent on common work. Admittedly, not all three tasks likely required the same

28

amount of time, but the Court finds that this method of calculating time spent on common work provides a reasonable approximation.

21

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United States District Court For the Northern District of California

1 five percent of plaintiffs in this case and Local 10 had already settled their damages claims.

2 Defendants further argue that the similarity in claims and the ultimate settlement agreements

3 reached by the four remaining Plaintiffs and the other plaintiffs who settled also justifies

4 denying Plaintiffs’ counsel any fees for work done after June 2005.

5

However, regardless of any similarity between the claims asserted by Plaintiffs

6 Bohning, Hansen, Parkinson, and Smith and the plaintiffs who were able to reach a

7 settlement agreement with Defendants, there is no indication that Plaintiffs’ counsel were

8 unnecessarily prolonging this litigation by refusing to settle the damages claims of the four

9 remaining Plaintiffs. Indeed, a bedrock principle of professional responsibility is that “a

10 lawyer shall abide by a client’s decision whether to settle a matter,” Am. Bar Ass’n Model

11 Rule 1.2, and it may very well be that these four Plaintiffs did not give their consent to settle

12 their claims until the eve of trial. Simply put, the fact the majority of plaintiffs in this case

13 and Local 10 settled their cases by a certain date does not, without any evidence to the

14 contrary, make it unreasonable for counsel to pursue this case vigorously on behalf of other

15 plaintiffs after that date, and the Court will not reduce the claimed number of hours based on

16 this objection.

17

c. Hours Spent on Fees

18

Defendants’ final objection to Plaintiffs’ counsel’s hours is simply a reprise of their

19 prior argument that any work performed after June 2005 should not be compensated.

20 Defendants argue that the damages fee motion would not have been necessary had Plaintiffs’

21 counsel resolved their clients’ claims by June 2005 or had counsel agreed to reduce their fee

22 demands in a manner Defendants believe would have been reasonable. The Court rejects

23 these broad arguments for the same reasons discussed previously in this order. In addition,

24 without any specific objections to the hours spent by Plaintiffs’ counsel on the fee motion,

25 and following the Court’s independent review of Plaintiffs’ time entries for fees related to

26 Plaintiffs’ damages claims, the Court finds it inappropriate and unnecessary to reduce the

27 number of hours claimed for such work; Plaintiffs’ requested number of hours for this work

28 is reasonable.

22

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United States District Court For the Northern District of California

1

C.

Calculation of the Lodestar

2

In light of all of the above, the Court calculates the total lodestar for Plaintiffs’

3 counsel’s work to be $536,118.00, as shown below:

4 5 Attorney

Injunctive Relief

Type of Work

Hourly Rate Hours

Total

6 Michael Haddad Merits

$400 218.85 $87,540.00

7
8
9 Julia Sherwin
10
11

Fees through 09/27/05 Fees for 09/28/05-12/31/05 Fees in 2006 Merits Fees through 09/27/05 Fees for 09/28/05-12/31/05

$400 $400 $420 $380 $380 $380

121.8 7.8 44.3
97.8 51.4 3.7

$48,720.00 $3,120.00 $18,606.00 $37,164.00 $19,532.00 $1,406.00

12

Fees in 2006

$400

0.6

$240.00

13 Richard Pearl Fees through 09/27/05

$495

60.05 $29,724.75

14

Fees for 09/28/05-12/31/05

$495

4.95 $2,450.25

15

Fees in 2006

$525

22.6 $11,865.00

TOTAL LODESTAR FOR INJUNCTIVE RELIEF $260,368.00 16

17 18 Attorney

Type of Work

Damages Hourly Rate Hours

Total

19 Michael Haddad Merits

$420

370.5 $155,610.00

20

Fees

$420

29.0 $12,180.00

21 Julia Sherwin 22 23

Merits Fees

$400

224.2

$400

45.7

TOTAL LODESTAR FOR DAMAGES

$89,680.00 $18,280.00 $275,750.00

24

OVERALL TOTAL LODESTAR $536,118.00

25

26 III. Multiplier Award

27

Under California fee-shifting provisions, once the lodestar is calculated, courts have

28 discretion to make upward or downward adjustments to the merits lodestar based on

23

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United States District Court For the Northern District of California

1 consideration of certain factors, including the novelty and difficulty of the questions

2 involved, the skill displayed in presenting them, the extent to which the nature of the

3 litigation precluded other employment by the attorneys, and the contingent nature of the fee

4 award. Ketchum, 24 Cal. 4th at 1132-1134. The purpose of a lodestar adjustment is to “fix

5 the fee at the fair market value for the particular action” by determining “whether the

6 litigation involved a contingent risk or required extraordinary legal skill justifying

7 augmentation of the unadorned lodestar.” Id.

8

The lodestar for fees work may also be adjusted based on similar factors. Graham, 34

9 Cal. 4th at 581-584. Additional factors that may be considered to enhance the lodestar on

10 fees include: delay in payment, extraordinary difficulties caused by the opposition to the fee

11 motion, and contingent risk. Id. When a multiplier is applied to the fees lodestar, however,

12 it should be lower than that applied to the merits lodestar because the contingent risk of

13 nonpayment is not as great as the risk taken by an attorney in initially deciding to pursue the

14 merits of a case. Id. at 582-83.

15

Plaintiffs’ counsel request a multiplier of 1.5 for the total merits lodestar, including

16 work on both Plaintiffs’ injunctive relief and damages claims. In addition, Plaintiffs’ counsel

17 seek a multiplier of 1.1 for the lodestar for fees work on injunctive relief claims through

18 September 27, 2005. Plaintiffs do not seek a multiplier for fees work on their damages

19 claims or on their injunctive relief claims after September 27, 2005.

20

Defendants contend that no multiplier is appropriate for work at any stage of this case

21 and first argue about the lack of contingent risk facing Plaintiffs’ counsel at the onset of this

22 litigation, pointing out that the City of Oakland began its own review of the Oakland Police

23 Department’s crowd control policy prior to Plaintiffs’ filing suit. Defendants also

24 characterize the litigation of Plaintiffs’ injunctive relief claims as a process during which

25 Defendants were “fully cooperating with plaintiffs to accomplish change acceptable to all

26 parties.” Inj. Relief Opp’n at 5. However, as the Court previously explained, Defendants’

27 characterization of this portion of the litigation is inaccurate:

28

24

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United States District Court For the Northern District of California

1

[A]lthough Defendants initiated an internal review of their

crowd control policies prior to the filing of these lawsuits,

2

they failed to respond to citizen complaints filed before the

litigation began. Nor did Defendants invite the complainants

3

or their counsel to discuss the City’s crowd control policy

prior to the onset of litigation. In addition, Defendants’

4

proposed policy differs markedly from the final result,

achieved after what Defendants acknowledge in the

5

settlement agreement was over ten months of difficult and

comprehensive negotiations between the parties. Thus, even

6

if Defendants unilaterally began the process of reviewing

and revising their crowd control policies, the filing of these

7

lawsuits to enforce Plaintiffs’ civil rights, and the

involvement of Plaintiffs’ counsel in negotiating the

8

language of the revised policies, had significant effects on

the outcomes of that process. There is no indication that the

9

same results would have been achieved in the absence of

litigation, or even that the internal review would ultimately

10

have resulted in a revised policy at all.

11 Sept. 27, 2005 Order at 7-8 (emphasis added).

12

Additionally, the relevant time at which to assess the contingent risk facing Plaintiffs

13 is the onset of litigation, at which point Plaintiffs faced the contingent risk of not prevailing

14 on the merits even when considering Defendants’ willingness to negotiate. Such risk is not

15 compensated in calculating the lodestar under state law, as “the unadorned lodestar reflects

16 the general local hourly rate for a fee-bearing case; it does not include any compensation for

17 contingent risk.” Ketchum, 24 Cal. 4th at 1138. The Court will therefore consider contingent

18 risk as a factor in enhancing the total lodestar for Plaintiffs’ counsel’s work on the merits of

19 Plaintiffs’ injunctive relief and damages claims.

20

Defendants also contend that Plaintiffs’ counsel improperly request an enhancement

21 based on exceptional skill or results obtained. A “multiplier for exceptional representation”

22 should only be awarded by the trial court “when the quality of representation far exceeds the

23 quality of representation that would have been provided by an attorney of comparable skill

24 and experience billing at the hourly rate used in the lodestar calculation.” Ketchum, 24 Cal.

25 4th at 1139 (emphasis added). A multiplier may also be applied “where an exceptional effort

26 produced an exceptional benefit.” Graham, 34 Cal. 4th at 582. Based on the Court’s

27 experience with this case, Plaintiffs’ counsel falls short of meeting these standards; instead,

28 the Court finds that Plaintiffs’ counsel displayed only comparable rather than exceptional

25

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United States District Court For the Northern District of California

1 skills to other attorneys with similar experience and billing rates and, similarly, that the

2 results obtained in this case were not exceptional. Accordingly, Plaintiffs’ counsel’s skill

3 and the results obtained shall not be used as factors to enhance the lodestar in this case.

4

Plaintiffs’ counsel next briefly argue that the Court should enhance the lodestar

5 because counsel have turned away other potentially lucrative work, including “numerous”

6 potential contingency-fee clients and “at least five” potential fee-paying clients during the

7 course of this case. Haddad Decl. ¶ 31. While this information certainly reveals that this

8 case has had an impact on Plaintiffs’ counsel’s business, it is also clear from Plaintiffs’

9 counsel’s declarations that they have been able to maintain their practice. Indeed, in the past

10 year, Plaintiffs’ counsel have achieved legal victories in at least two other cases – another

11 civil rights case and a medical malpractice case. Haddad 2d Supp. Decl. ¶ 2; Sherwin Supp.

12 Decl. ¶ 5. Thus, the Court does not find good cause to enhance the lodestar based on

13 counsel’s purported preclusion from other employment while this case was pending.

14

The Court also finds it unnecessary to enhance the lodestar based on the additional

15 “public interest value” factor identified by Plaintiffs. While the Court agrees that the

16 injunctive relief obtained in this case does serve the public interest and that attorneys who

17 serve the public interest should be rewarded, such incentives are adequately reflected in the

18 lodestar analysis pursuant to the private attorney general doctrine and need not be

19 additionally rewarded by a multiplier.

20

Finally, given that Defendants so vigorously opposed Plaintiffs’ fee requests for

21 injunctive relief work, the Court finds it appropriate to award a multiplier, as Plaintiffs

22 request, on the lodestar for fees work through September 27, 2005, the date on which the

23 Court found Plaintiffs to be entitled to fees. Up until that time, Plaintiffs’ counsel faced a

24 contingent risk of “not establishing eligibility for an attorney fee award.” Graham, 34 Cal.

25 4th at 583. The fees multiplier will be lower than the merits multiplier, however, given that

26 the contingent risk was not as great as at the outset of this litigation.

27

Based on the above discussion, the Court awards a multiplier for all stages of this

28 litigation to compensate for contingent risk only. A 1.1 multiplier, or ten percent increase,

26

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United States District Court For the Northern District of California

1 will be applied to the lodestar for counsel’s work on the merits of Plaintiffs’ injunctive relief

2 and damages claims, and a 1.05 multiplier, or five percent increase, will be applied to the

3 lodestar for work on fees for injunctive relief through September 27, 2005, the date on which

4 this Court established Plaintiffs’ entitlement to such fees. The Court makes these

5 enhancements based on its understanding of this litigation, and the multipliers are designed

6 to fix the fee award at the fair-market value for this particular action. While the Court

7 recognizes that the awarded multipliers are significantly lower than those Plaintiffs requested

8 and those that have been awarded in other cases, the Court does not believe the

9 circumstances of this case warrant a high multiplier. Although Plaintiffs’ counsel did assume

10 some risk in these cases, the willingness of Defendants to engage in settlement discussions

11 and revise their crowd control policy from the outset of this litigation lessened that risk

12 considerably. Moreover, this case was not especially protracted and, as discussed above, the

13 Court finds neither counsel’s skill nor the results obtained in this case to be exceptional

14 enough to enhance the lodestar.

15

16 IV. Costs

17

In addition to seeking attorneys’ fees, Plaintiffs’ counsel seek $33,242.35 in costs,

18 including $13,290.68 on Plaintiffs’ injunctive relief claims and $19,951.67 on damages

19 claims. Of this amount, Defendants contest $9500 in claimed expert witness fees because

20 Plaintiffs’ itemization of costs does not identify the experts by name. Haddad Decl. Ex. B at

21 1. However, as discussed in a prior section of this order, other records submitted by

22 Plaintiffs identify Lou Reiter and Larry Danaher as Plaintiffs’ experts, and these experts’

23 reports were previously served on Defendants. Defendants’ objection is therefore

24 unpersuasive, and Plaintiffs may recover the $9500 in expert fees under California Code of

25 Civil Procedure section 1021.5. Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1407, 1421-

26 22 (1991) (holding that expert witness fees may be awarded under section 1021.5 if they

27 represent expenses ordinarily billed to a client and are not included in the overhead

28 component of counsel’s hourly rate).

27

Case3:03-cv-02961 Document204 Filed01/04/07 Page28 of 29

United States District Court For the Northern District of California

1

Defendants also argue that Plaintiffs’ common costs on damages claims should be

2 reduced based on the Coles and Telles settlements. The Court agrees for the same reasons

3 that the Court found a reduction in the number of hours for common work on Plaintiffs’

4 damages claims to be appropriate. Through March 2, 2005, the date of the Telles settlement,

5 common costs amounted to $935.01, and an additional $10,129.16 was spent on common

6 costs after March 2 but before November 28, 2005, the date of the Coles settlement.6

7 Accordingly, Plaintiffs’ claimed costs will be reduced by one-third of $935.01 and one-fifth

8 of $10,129.16, for a total reduction of $2337.50. Plaintiffs shall therefore be awarded

9 $30,904.85 in costs.

10

11 V. Interest

12

Finally, Plaintiffs’ counsel seek interest on their total award of fees and costs for work

13 performed on Plaintiffs’ injunctive relief claims prior to September 27, 2005, at a 3.88%

14 annual rate. Defendants do not dispute Plaintiffs’ entitlement to interest on these fees and

15 costs, nor do they dispute that 3.88% is the proper annual interest rate. Accordingly,

16 Plaintiffs shall be awarded interest, at an annual rate of 3.88%, on $240,049.99 in fees

17 ($124,704 x 1.1 multiplier for work on merits plus $97,976.75 x 1.05 multiplier for work on

18 fees through September 27, 2005) and $13,290.68 in costs.

19

20 CONCLUSION

21

In sum, IT IS HEREBY ORDERED that Plaintiffs’ motions for attorneys’ fees and

22 costs are GRANTED IN PART and DENIED IN PART consistent with the above discussion.

23 Defendants shall pay Plaintiffs’ counsel $621,512.12, as detailed in the table below, within

24 thirty calendar days of the date of this order. This resolves the only outstanding dispute

25 between the parties, and the Clerk shall therefore close the file.

26

27

28

6In calculating these figures, the Court apportioned the 2005 mileage, parking, tolls, and postage costs by average cost per month.

28

Case3:03-cv-02961 Document204 Filed01/04/07 Page29 of 29

United States District Court For the Northern District of California

1

Attorneys’ Fees

2 Type of Work Lodestar Multiplier Enhanced Interest7

Total

Lodestar 3

Merits on

$124,704.00

1.1

$137,174.40 $6,817.57 $143,991.97

4 Injunctive

Relief

5 Fees on

$97,976.75

1.05

$102,875.59 $5,112.92 $107,988.50

6 Injunctive Relief through

7 09/27/05

8

Fees on Injunctive

$37,687.25

1.0

9

Relief after 09/27/05

$37,687.25

$0.00 $37,687.25

10 Merits on Damages
11 Fees on
12 Damages

$245,290.00

1.1

$269,819.00

$30,460.00

1.0

$30,460.00

$0.00 $269,819.00 $0.00 $30,460.00

13

TOTAL FEES AWARDED $589,946.72

14 15 Item 16 Costs on Injunctive Relief 17 Costs on Damages 18

Costs

Amount Interest

$13,290.68 $660.55

$17,614.17

$0.00

TOTAL COSTS AWARDED

Total $13,951.23 $17,614.17 $31,565.40

19

TOTAL FEES AND COSTS AWARDED $621,512.12

20 IT IS SO ORDERED.
21

22 Dated: 01/04/07
23
24

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

25

26

27

28

7At a 3.88% annual interest rate, compounded annually, the total interest from September 27, 2005, amounts to approximately 4.97% (1.0388 * (1+ ((0.0388/52) * 14)) - 1).

29

 
 Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page1 of 33

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ALAN L. SCHLOSSER, SBN 49957 JULIA HARUMI MASS, SBN 189649 MARK SCHLOSBERG, SBN 209144 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 1663 Mission Street, Suite 460 San Francisco, CA 94103 (415) 621-2493; FAX (415) 255-8437

11

Attorneys for plaintiffs

(Additional counsel on next page)
12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 LOCAL 10, INTERNATIONAL LONGSHORE AND ) Case No.: C 03-2962 TEH (JL)

WAREHOUSE UNION; BILLY KEPOO; ALLEN )
15 CHAPMAN; CHRISTOPHER CLAY; SILAS DUNN; )

16

WILLIE HAMLIN; ERNEST EVANS; DAVID

) THIRD AMENDED COMPLAINT FOR

LOVILLE; LAWRENCE MASSEY; BYRON MOORE,) DAMAGES AND INJUNCTIVE AND

17 SR.; JOHN NISHINAGA; W ILLOW ROSENTHAL; ) DECLARATORY RELIEF

JESSICA LAWRENCE; SCOTT FLEMING;

)

18 JENNIFER SCHOCKEMOEHL; LAW RENCE
MENARD; JEFFREY CROW BOLT; MATTHEW
19 DODT; REBECCA SONCHEK; TERRENCE

) CIVIL RIGHTS CLASS ACTION
) ) DEMAND FOR JURY TRIAL

ENRIGHT; ARTHUR MARTINEZ; HENRY NORR; )

20 STEVEN SAKALA; SUSAN QUINLAN; TIM

)

RIDOLFI; ALICIA GROGAN-BROWN; KENNETH )
21 HAYES; DEAN ROYER; BERNADINE M ELLIS; )

THOMAS BECKER; PATRICIA “MAX” RORTY; )

22 JESSE CHRISTENSEN; DIANA BOHN; MILES

)

23

MONTABANO; NICHOLAS FRABASILIO; CYPRUS )

GONZALEZ; KRISTIN MEEKER; ERIC SHAW;

)

24 VIOLETA FOREGGER; CHELSEA SMITH; AIDAN )

KOTLER; LESLEY KRUEGER; MARKO

)

25 SAKMANN; JUDITH MIRKINSON; VAAHDAT

)

SAADAT; CLAY HINSON, MARC DE GIERE,

)

26 DAVID MARTINEZ, LAURA “ARIEL” GLENN,

)

SARAH KENNEDY, CLIFF CLOSE, KATE

)

27

28

THIRD AMENDED COMPLAINT - 1

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page2 of 33

1 SASSOON, and JACK HEYMAN, individually and on )

behalf of all others similarly situated,

)

2

)

Plaintiffs,

)

3

vs.

)

4

CITY OF OAKLAND; RICHARD WORD; PATRICK )

HAW; ROD YEE; E. POULSON; HOWARD A.

)

5

JORDAN; DAVE KOZICKI; T. HOGENMILLER; E. )

TRACEY; R. GUTIEREZ; A. OERLEAMNS; R.

)

6

HOLMGREN; P. GONZALES; S. KNIGHT; M.

)

RANDALL, R. CHAN, R. OROZCO, G. BELLUSA, P. )

7

HUPPERT, J. SCOTT, J. KURZROCK, M. MACK, J. ) KELLY, OFFICER SOUZA, J. MUSCHI, S.

8

JOHNSON, OFFICER KARSABOOM, SGT. G.

)

TOLLESON; SGT. D. CAMPBELL; OFF. R. MOORE; )

9

OFF. A. STEINBERGER; OFF. F. UU; OFF. B.

)

WORDEN; OFF J. FUKADA, OFF. J. DOOLITTLE; )

10

OFF. C. SAUNDERS, OFF. E. ROMANS; OFF. C. DELROSARIO; individually and in their official

) )

11 capacities, and DOES 1-100, inclusive,

)

)

Defendants.

12

)

13
[Additional counsel]

14 BOBBIE STEIN
503 Dolores Street, #201
15 San Francisco, CA 94110-1564
(415) 255-0301; FAX (510) 601-5780
16

17

OSHA NEUMANN 1840 Woolsey Street

18 Berkeley, CA 94703
(510) 644-2429; FAX (510) 540-4821

19
Attorneys for plaintiffs
20
ROB REMAR
21 LEONARD CARDER LLP
1188 Franklin Street, #201
22 San Francisco, CA 94109
(415) 447-0403; FAX (415) 771-7010
23 (Counsel only for Local 10, ILW U)

24

25

26

27

28

THIRD AMENDED COMPLAINT - 2

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page3 of 33

1

I. INTRODUCTION

2 1. This is a civil rights class action arising from unconstitutional and unlawful actions taken

3 by the Oakland Police Department (AOPD@) in response to a peaceful nonviolent antiwar

4 demonstration at the Port of Oakland on April 7, 2003. The named individual plaintiffs are
5 demonstrators, legal observers, videographers, journalists, and dockworkers who were in the
6 vicinity of the April 7th demonstration when defendants did unlawfully disperse and interfere 7
with the demonstration by, among other things, firing guns which shot wooden dowels and bean 8
bags, throwing Astingball@ grenades filled with rubber pellets and tear gas, and striking 9
demonstrators with their motorcycles and clubs. Defendants= actions were the result of unlawful 10
and unconstitutional policies and practices of the City of Oakland and the OPD. The named 11 12 individual plaintiffs seek damages from defendants for the injuries they suffered as a result of the
13 unlawful police conduct at the April 7th demonstration. In addition, the plaintiffs, on their own
14 behalf and on behalf of a class of persons similarly situated, seek declaratory and injunctive relief

15 to restrain defendants from using excessive, indiscriminate and/or arbitrary force and other

16 unlawful actions to interfere with, disperse and deter future demonstrations, rallies and protest

17 activities in the City of Oakland.

18 2. Plaintiffs claim that defendants= actions deprived them of their right to freedom of speech

19 and association, their right to be free from unreasonable seizures and excessive force, and their

20 right to due process and equal protection of the laws, all guaranteed by the United States and

21 California Constitutions, as well as additional state law claims relating to the police actions
22 complained of herein.
23 II. JURISDICTION
24

3. 25

This action arises under 42 U.S.C. '1983. Jurisdiction is based on 28 U.S.C. '1331 and

26 '1343. The court has supplemental jurisdiction over state law claims under 28 U.S.C. '1367.

27

28

THIRD AMENDED COMPLAINT - 3

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page4 of 33

1 Plaintiffs have filed administrative claims with the City of Oakland in compliance with
2 California Government Code sections 910 et seq., and the City has not acted upon those claims.
3
III. INTRADISTRICT ASSIGNMENT 4

5 6 4. The claims alleged herein arose in the City of Oakland, State of California. Therefore, 7 venue and assignment lies in the United States District Court for the Northern District of

8 California, San Francisco Division or the Oakland Division.

9

IV. THE PARTIES

10

A. Plaintiffs

11 5. Plaintiff LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION
12 (ALOCAL 10") or (AILWU@) is an unincorporated association and labor union whose members
13 perform longshore work in the Ports of Oakland, San Francisco and Richmond under a collective 14
bargaining agreement known as the Pacific Coast Longshore and Clerks Agreement 15
(APCL&CA@). Plaintiff LOCAL 10 has, along with individual LOCAL 10 members, economic 16
and legal interests concerning the exercise of police powers and the use of force by defendants in 17
the Port and City of Oakland. Plaintiff LOCAL 10 sues on its own behalf and in its 18 19 representative capacity on behalf of its officers and members, including but not limited to, those
20 who reside and/or work in the Port of Oakland and City of Oakland.
21 6. The elected officers of Local 10 perform various duties on behalf of the Local 10

22 membership, including, among other things, assisting and representing Local 10 members with

23 respect to matters of employment at work sites including the container terminal facility operated

24 by Stevedoring Services of America, and the marine container facility operated by American

25 President Lines, Inc. and its wholly owned subsidiary Eagle Marine Services, Inc., both located 26 in the Port of Oakland. In particular, Local 10 officers show up when picketing or 27

28

THIRD AMENDED COMPLAINT - 4

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page5 of 33

1 demonstrations occur at a work site, and represent Local 10 and its members in arbitration
2 proceedings that are held under the PCL&CA to determine whether Local 10 members should
3 enter and/or work at a facility subject to such picketing or demonstrating.
4
5 7. Plaintiffs BILLY KEPOO, ALLEN CHAPMAN, CHRISTOPHER CLAY, SILAS
6 DUNN, WILLIE HAMLIN, ERNEST EVANS, DAVID LOVILLE, LAWRENCE MASSEY,
7 BYRON MOORE, SR. and JACK HEYMAN are, and at all times mentioned herein were,

8 dockworkers and members of Local 10 who were in the vicinity of the demonstration on April 7,

9 2003 and were subjected to the unlawful police conduct complained of herein.

10 8. Plaintiffs JOHN NISHINAGA, WILLOW ROSENTHAL, JESSICA LAWRENCE,

11 SCOTT FLEMING, JENNIFER SHOCKEMOEHL, LAWRENCE MENARD, JEFFERY
12 CROW BOLT, MATTHEW DODT, REBECCA SONCHEK, TERRENCE ENRIGHT,
13 ARTHUR MARTINEZ, HENRY NORR, STEVEN SAKALA, SUSAN QUINLAN, TIM 14
RIDOLFI, ALICIA GROGAN-BROWN, KENNETH HAYES, DEAN ROYER, BERNADINE 15
MELLIS, THOMAS BECKER, PATRICIA "MAX" RORTY, JESSE CHRISTENSEN, DIANA 16
BOHN, MILES MONTABANO, NICHOLAS FRABASILIO, CYPRUS GONZALEZ, KRISTIN 17
MEEKER, ERIC SHAW, VIOLETA FOREGGER, CHELSEA SMITH, AIDAN KOTLER, 18 19 LESLEY KRUEGER, MARKO SAKMANN, JUDITH MIRKINSON, VAAHDAT SAADAT,
20 CLAY HINSON, MARC DE GIERE, DAVID MARTINEZ, LAURA AARIEL@ GLENN,
21 SARAH KENNEDY, CLIFF CLOSE and KATE SASSOON (hereafter referred to as

22 Ademonstrator plaintiffs@), are individuals who were exercising their rights to freedom of speech

23 and association in the vicinity of the April 7, 2003, demonstration and were subjected to the

24 unlawful police conduct complained of herein.

25

B. Defendants

26

27

28

THIRD AMENDED COMPLAINT - 5

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page6 of 33

1 9.

Defendant CITY OF OAKLAND is, and at all times herein mentioned was, a municipal

2
corporation duly organized and existing under the laws of the State of California. 3

10. Defendant RICHARD WORD is, and at all times herein mentioned was, the Chief of 4

5 Police for the CITY OF OAKLAND. Defendant WORD was the policy-maker for Defendant

6 CITY OF OAKLAND on the matters alleged herein related to the customs, policies, practices, of

7 the OPD, including, but not limited to, customs, policies and practices related to policing of First

8 Amendment activities; the training, supervision, hiring, discipline, assignment and control of

9 police officers; and the management and supervision of OPD.

10 11. Defendant PATRICK HAW is, and at all times herein mentioned was, the Deputy Chief

11 in charge of the OPD Patrol Division. Defendant HAW participated in the planning, supervision
12 and execution of the police conduct complained of herein.
13 12. Defendants Captain ROD YEE, Lt. E. POULSON, Lt. HOWARD A. JORDAN, Lt. 14
DAVID KOZICKI, Sgt. T. HOGENMILLER, Sgt. E. TRACEY, Sgt. J. KELLY, SGT. R. 15
OROZCO, Sgt. J. KURZROCK, Sgt. G. TOLLESON, and Sgt. D. CAMPBELL are, and at all 16
times mentioned were, command and/or supervisory employees of OPD who participated in the 17
planning, supervision and execution of the police conduct complained of herein. 18 19 13. Defendants Officers R. GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P.
20 GONZALES, S. KNIGHT, M. RANDALL, R. CHAN, S. JOHNSON, KARSABOOM, P.
21 HUPPERT, G. BELLUSA, J. SCOTT, M. MACK, SOUZA, J. MUSCHI, R. MOORE, A.

22 STEINBERGER, F. UU, B. WORDEN, J. FUKADA, J. DOOLITTLE, C. SAUNDERS, E.

23 ROMANS, and C. DELROSARIO, are, and at all times mentioned were, officers of OPD who

24 participated in the execution of the police conduct complained of herein.

25 14. 26 15. 27

All of the above individual defendants are sued in their individual and official capacities. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein as

28

THIRD AMENDED COMPLAINT - 6

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page7 of 33

1 DOES 1 through 100, inclusive, and therefore sue said defendants by such fictitious names.
2 Plaintiffs will amend this complaint to allege their true names and capacities when ascertained.
3 Plaintiffs are informed and believe and therefore allege that each of the Doe defendants is legally
4
5 responsible and liable for the incident, injuries and damages hereinafter set forth, and that each of
6 said defendants proximately caused said incidents, injuries and damages by reason of their
7 negligence, breach of duty, negligent supervision, management or control, violation of

8 constitutional and legal rights, or by reason of other personal, vicarious or imputed negligence,

9 fault, or breach of duty, whether severally or jointly, or whether based upon agency, employment,

10 or control or upon any other act or omission. Plaintiffs will ask leave to amend this complaint to

11 insert further charging allegations when such facts are ascertained.
12 16. Each of the defendants, including defendants DOES 1 through 100, caused, and is
13 responsible for, the below-described unlawful conduct and resulting injuries by, among other 14
things, personally participating in the unlawful conduct or acting jointly or conspiring with others 15
who did so; by authorizing, acquiescing in or setting in motion policies, plans or actions that led 16
to the unlawful conduct; by failing to take action to prevent the unlawful conduct; by failing and 17
refusing with deliberate indifference to plaintiffs' rights to initiate and maintain adequate training 18 19 and supervision; and by ratifying the unlawful conduct that occurred by agents and officers under
20 their direction and control, including failing to take remedial or disciplinary action.
21 17. In doing the acts alleged herein, defendants, and each of them, acted within the course

22 and scope of their employment for the CITY OF OAKLAND.

23 18. In doing the acts and/or omissions alleged herein, defendants, and each of them, acted

24 under color of authority and/or under color of law.

25 19. In doing the acts and/or omissions alleged herein, defendants, and each of them, acted as 26 the agent, servant, employee and/or in concert with each of said other defendants. 27

28

THIRD AMENDED COMPLAINT - 7

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page8 of 33

1 V. CLASS ACTION ALLEGATIONS

2
20. 3

Plaintiffs JOHN NISHINAGA, WILLOW ROSENTHAL, JESSICA LAWRENCE,

SCOTT FLEMING, JENNIFER SCHOCKEMOEHL, LAWRENCE MENARD, JEFFREY 4

5 CROW BOLT, MATTHEW DODT, REBECCA SONCHEK, TERRENCE ENRIGHT,

6 ARTHUR MARTINEZ, HENRY NORR, STEVEN SAKALA, SUSAN QUINLAN, TIM

7 RIDOLFI, ALICIA GROGAN-BROWN, KENNETH HAYES, DEAN ROYER, BERNADINE

8 MELLIS, THOMAS BECKER, PATRICIA AMAX@ RORTY, JESSE CHRISTENSEN, DIANA

9 BOHN, MILES MONTABANO, NICHOLAS FRABASILIO, CYPRUS GONZALEZ, KRISTIN

10 MEEKER, ERIC SHAW, VIOLETA FOREGGER, CHELSEA SMITH, AIDAN KOTLER,

11 LESLEY KRUEGER, MARKO SAKMANN, JUDITH MIRKINSON, VAAHDAT SAADAT,
12 CLAY HINSON, MARC DE GIERE, DAVID MARTINEZ, LAURA AARIEL@ GLENN,
13 SARAH KENNEDY, CLIFF CLOSE and KATE SASSOON, the demonstrator plaintiffs, seek 14
class certification pursuant to Fed.R.Civ.P. 23(a) and (b)(2) to pursue injunctive and declaratory 15
relief on behalf of themselves and all persons similarly situated. The proposed class consists of 16
all persons who attended the April 7th demonstration, and/or who may attend in the future 17
demonstrations, rallies and protests in the City of Oakland, and, as a result, have been, and/or 18 19 hereafter may be, subjected to defendants= policy and practice of using excessive, indiscriminate
20 and/or arbitrary force to disperse or control persons attending demonstrations, rallies or protests
21 as complained of herein.

22 21. This case satisfies the prerequisites of a Rule 23(b)(2) class action.

23 22. The class is so numerous that joinder of all members is impracticable. Plaintiffs do not

24 know the identities or exact number of all class members. Plaintiffs are informed and believe

25 and thereon allege that in excess of 500 persons were present at, or in the vicinity of, said 26 demonstration and were subjected to and/or threatened by the unlawful and unconstitutional 27

28

THIRD AMENDED COMPLAINT - 8

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page9 of 33

1 actions of the OPD.

2
23. 3

There are questions of law and fact common to all members of the class, because all class

members have been, or may be in the future, adversely affected by the challenged actions of the 4

5 defendants. Common questions of law and fact include, but are not limited to: whether OPD

6 officers were justified in using force on April 7, 2003, and if so, what degree of force was

7 constitutionally reasonable; whether the OPD and its officers have a policy or practice of using

8 excessive force to interfere with nonviolent expressive activities; and whether the City, the OPD

9 and its supervisors fail to properly train and supervise officers in the use of force during

10 demonstrations and rallies.

11 24. The claims of the named demonstrator plaintiffs are typical of the claims of the class.
12 The claims of the class members arise from the same customs, policies or practices that have
13 resulted in damages to the class representatives and are based on the same legal theories. 14
25. The representative plaintiffs will fairly and adequately protect the interests of the class 15
because they are, and were, subject to the policies, customs and practices complained of herein, 16
and have no interests antagonistic to other members of the class. In addition, plaintiffs' counsel 17
are experienced in litigating federal civil rights cases and class actions, including federal civil 18 19 rights actions against the City of Oakland and the OPD.
20 26. The defendants have acted and refused to act on grounds generally applicable to the class,
21 and injunctive and declaratory relief for the class as a whole is appropriate.

22 27. The prosecution of separate actions by individual members of the class would create a

23 risk of inconsistent or incompatible standards of conduct for the defendants, thereby making a

24 class action the superior method of adjudicating the controversy.

25

VI. STATEMENT OF FACTS

26

27

28

THIRD AMENDED COMPLAINT - 9

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page10 of 33

1 28. In late March, 2003, the United States government invaded Iraq. Thousands of people
2 participated in demonstrations and rallies in the San Francisco Bay Area to voice opposition to
3 this war.
4
5 29. An antiwar demonstration was planned for April 7, 2003, at the Port of Oakland. The
6 demonstration was intended to focus on American President Lines (AAPL@), which was under
7 contract with the United States military to ship weapons, and Stevedore Services of America

8 (ASSA@), to which the U.S. government had just granted the contract to operate Iraq=s main port

9 of Umm Qasr. Some participants planned to peacefully and nonviolently encourage workers and

10 trucks to not enter the marine container facilities by setting up picket lines at the entrances to the

11 facilities and talking to truck drivers, while others planned to peacefully and lawfully express
12 their viewpoint against the war in the vicinity with signs, banners and verbal opposition. Still
13 others intended to observe and/or document the demonstration and police response, including a 14
number of legal observers, journalists, and independent videographers and photographers. 15
30. On information and belief, prior to this demonstration, defendants gathered, maintained 16
and disseminated documents, information and intelligence concerning the demonstration, 17
including, but not limited to, information about the constitutionally protected speech and 18 19 associational activities of individuals and organizations involved in antiwar activities, including
20 LOCAL 10 and its officers and members, and the demonstrators. Such documents and
21 information gathered and maintained by the OPD included an anti-war internal newsletter of

22 LOCAL 10, and email messages to an ILWU group listserv concerning union support for

23 anti-war protest activities among other union business matters. Defendants= actions in gathering,

24 maintaining and disseminating documents, information and intelligence concerning the

25 constitutionally protected speech and associational activities of plaintiffs was overbroad, 26 unnecessary and unjustified by any legitimate law enforcement purpose. 27

28

THIRD AMENDED COMPLAINT - 10

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page11 of 33

1 31. On information and belief, on or before April 7, 2003, defendants WORD, HAW, YEE,
2 and/or other commanders and supervisory officials of OPD and the CITY OF OAKLAND
3 planned that the police would bring an arsenal of weapons, including projectile and chemical
4
5 weapons, which the OPD and its officers knew would likely cause serious bodily injury to
6 demonstrators. The OPD and its officers nevertheless planned to quickly deploy these weapons
7 to clear demonstrators from the vicinity of the marine container facilities.

8 32. At various times on and before April 7, 2003, representatives of the OPD and CITY OF

9 OAKLAND held meetings and discussions with non-ILWU employees and representatives of

10 APL, SSA, and the Pacific Maritime Association (APMA@), regarding the police response to the

11 anticipated anti-war demonstration.
12 33. On April 7, 2003, several hundred demonstrators gathered at the Port in the early morning
13 hours. Most arrived on BART or parked their vehicles near the West Oakland BART station, 14
and walked or were shuttled to the Port. Some set up picket lines at the gate entrances of the 15
APL and SSA Terminals, walking in circles carrying signs. Many others, including 16
demonstrators, legal observers, videographers, journalists and others, stood to the side of the 17
road, on the shoulder or along the railroad tracks. 18 19 34. At or around 6:00 a.m. on Monday, April 7, 2003, in excess of 20 LOCAL 10 members
20 arrived to report to work at the gate entrances of the APL Terminal in the Port of Oakland.
21 Pursuant to established contract procedures under the PCL&CA, the LOCAL 10 members,

22 accompanied by several LOCAL 10 officers, Astood by@ outside the gate entrances of the SSA

23 Terminal and the APL Terminal to await the holding of a labor arbitration regarding whether

24 LOCAL 10 members should or should not enter the SSA Terminal or the APL Terminal in the

25 face of the public anti-war demonstration as well as the mass police presence. Most, if not all, of 26 the LOCAL 10 members and officers at the scene congregated as a group, physically separate 27

28

THIRD AMENDED COMPLAINT - 11

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page12 of 33

1 from the demonstrators and the police at the gate entrances of the SSA Terminal and the APL
2 Terminal. At all material times, the LOCAL 10 officers and members acted peacefully and
3 lawfully.
4
5 35. Plaintiffs are informed and believe that at approximately 7:15 a.m., the police purported
6 to give a dispersal order to the demonstrators at one of the APL gates, but this order was
7 inaudible to most and unclear in informing the demonstrators what the police wanted them to do.

8 The demonstrators attempted to comply with the order and/or with police movements by clearing

9 away from the gates, and traffic proceeded through. The police formed skirmish lines which

10 blocked the demonstrators and observers from the direct route back to the West Oakland BART

11 station and parking lot and refused to let them through.
12 36. After the demonstrators had cleared away from the gate, at approximately 7:30 a.m.,
13 without provocation or warning, OPD police officers, including defendants E. TRACEY, R. 14
GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P. GONZALES, and S. KNIGHT, began 15
throwing Asting ball@ grenades filled with rubber pellets and tear gas, and firing guns which shot 16
multiple wooden dowels and Aflexible baton rounds@ (bean bags), at the peaceful demonstrators 17
and observers. Also, OPD officers ran motorcycles into the peaceful, fleeing demonstrators and 18 19 observers, and hit them with clubs. OPD officers continued chasing and shooting at the
20 retreating crowd north on Middle Harbor Road toward the SSA facilities for some minutes.
21 37. The police also purported to give an order to disperse to the peaceful picketers at the SSA

22 gate entrances. Again, this order was inaudible to many and unclear as to what the demonstrators

23 and observers were supposed to do. OPD officers, including defendants E. TRACEY, R.

24 GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P. GONZALES, and S. KNIGHT, opened fire

25 at the peaceful demonstrators and observers, and at the LOCAL 10 members and officers, 26 shooting and striking them with projectiles. The demonstrators and others attempted to leave the 27

28

THIRD AMENDED COMPLAINT - 12

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page13 of 33

1 area by walking up Maritime Road, the only avenue not blocked off by the police. Defendants
2 pursued them, charging with motorcycles, throwing grenades and shooting wooden dowels
3 directly at the backs and heads of fleeing demonstrators and others.
4
5 38. A number of people gathered at the intersection of Maritime and 7th Streets. Some were
6 peacefully picketing, some merely observing, while others attended to wounds or tried to
7 determine how to get home. At approximately 9:00 a.m., OPD officers, including defendants E.

8 TRACEY, R. GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P. GONZALES, and S.

9 KNIGHT, approached, purported to give a dispersal order, again inaudible to many, and

10 proceeded to open fire directly at the picketers and others in the vicinity. This was approximately

11 one and a half hours and more than a mile in distance from when and where the projectiles were
12 first fired.
13 39. OPD officers continued to herd the terrified demonstrators and observers down 7th Street 14
toward the BART station with their motorcycles. 15
40. Throughout the period from approximately 7:30 a.m. to approximately 9:00 a.m., 16
additional persons arrived in the vicinity to participate in or observe the antiwar demonstration. 17
OPD officers, including defendants E. TRACEY, R. GUTIEREZ, A. OERLEAMNS, R. 18 19 HOLMGREN, P. GONZALES, and S. KNIGHT, shot and threw projectiles at, and ran
20 motorcycles into, these persons as well, without provocation or warning, and regardless of
21 whether these persons had been in the area when any dispersal orders were given.

22 41. In protest of defendants= use of excessive force at the Port demonstration and the Iraq war,

23 some of the demonstrators walked as a group from the BART area to the Oakland Federal

24 Building. OPD officers continued to pursue them in an intimidating fashion, periodically hitting

25 demonstrators with motorcycles and injuring them. 26 42. OPD officers, including defendants E. TRACEY, R. GUTIEREZ, A. OERLEAMNS, R. 27

28

THIRD AMENDED COMPLAINT - 13

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page14 of 33

1 HOLMGREN, P. GONZALES, and S. KNIGHT, aimed and fired projectiles such as wooden
2 dowels, @flexible batons@ (bean bags), and sting ball grenades filled with rubber pellets and tear
3 gas, directly at plaintiffs= heads, torsos, hands, arms and legs, in some cases from close range,
4
5 despite their knowledge that such use of the projectile weapons constituted potentially deadly
6 force, and contrary to the manufacturers= warnings and instructions, including, but not limited to,
7 the warning prominently printed on each Federal Laboratories AMultiple Wood Baton Shell@ used

8 by defendants on April 7, 2003: ADo not fire directly at persons as serious injury or death may

9 result. Ricochet baton shell approximately 3 meters in front of persons.@

10 43. At no point did defendants give plaintiffs a clear order directing what they should do or

11 where they should go to avoid being shot or otherwise subjected to force.
12 44. There was no probable cause or reasonable suspicion that the plaintiffs or any of the
13 demonstrators, observers or dockworkers, posed an immediate or credible threat of injury to the 14
police or any other person, and there were no facts that justified the force that the OPD and its 15
officers directed against the plaintiffs. 16
45. There was no probable or reasonable cause to believe that plaintiffs KENNEDY, 17
GLENN, SASOON, HEYMAN and/or CLOSE committed any crime. Nevertheless, said 18 19 plaintiffs, and each of them, were subjected to arrest and imprisonment without reasonable or
20 probable cause to believe that they committed any crimes by members of the OPD that included,
21 but may not be limited to, defendants R. CHAN, P. HUPPERT, G. BELLUSA, S. JOHNSON,

22 OFFICER KARSABOOM, J. SCOTT, J. KURZROCK, M. MACK, J. MUSCHI, J. KELLY, R.

23 OROZCO and/or OFFICER SOUZA.

24 46. Plaintiffs are informed and believe that defendants directed force against the

25 demonstrators and/or arrested and imprisoned certain of the demonstrator plaintiffs without 26 probable cause for the purpose of interfering with their First Amendment rights, and that 27

28

THIRD AMENDED COMPLAINT - 14

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page15 of 33

1 defendants= use of force and/or arrests was/were motivated by the political content, message and
2 viewpoint of the demonstrators, or by defendants= perceptions of such.
3 47. Plaintiffs are informed and believe that defendants deliberately singled out and aimed
4
5 their weapons and otherwise directed force at legal observers; perceived demonstration leaders
6 such as persons who carried bullhorns; videographers and journalists who were holding camera
7 equipment. Plaintiffs are informed and believe that defendants= use of force against these

8 plaintiffs was motivated and influenced by the political content and viewpoint of their message,

9 and/or their acts of documenting the police conduct and/or criticism of the police, and/or

10 defendants= perceptions of one or more of these characteristics.

11 48. Plaintiffs are informed and believe that defendants deliberately singled out and aimed

12 their weapons and otherwise directed force at and engaged in the other conduct described herein

13 against plaintiff LOCAL 10 and its officers and members because of hostility, animus and

14 discrimination against the ILWU as an organization and against members and officers affiliated

15 with the ILWU.
16
49. Plaintiffs are informed and believe that a total of at least 50 people were physically 17

injured by the police actions complained of herein. 18

19

VIII. ALLEGATIONS CONCERNING INDIVIDUAL PLAINTIFFS

20 50. On April 7, 2003, plaintiff BILLY KEPOO was a member of Local 10 of the ILWU and

21 was Astanding by@ with other union members to await an arbitrator=s decision as to whether they

22 could cross the demonstrators= picket line and/or to be escorted into work by the police. The

23 defendants, without legal justification or reasonable cause, caused him to be shot in the hand

24 with a projectile, fracturing his thumb.

25 51. On April 7, 2003, while plaintiff ALLEN CHAPMAN, a member of Local 10 of the 26 ILWU, was Astanding by@ with other union members, the defendants, without legal justification 27

28

THIRD AMENDED COMPLAINT - 15

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page16 of 33

1 or reasonable cause, caused him to be shot with projectiles in the lower left back, inner left thigh,
2 and on the left side.
3 52. On April 7, 2003, while plaintiff CHRISTOPHER CLAY, a member of Local 10 of the
4
5 ILWU, was Astanding by@ with other union members, the defendants, without legal justification
6 or reasonable cause, caused him to be shot with projectiles on the right hamstring and on his back
7 near the right shoulder.

8 53. On April 7, 2003, while plaintiff SILAS DUNN, a member of Local 10 of the ILWU, was

9 Astanding by@ with other union members, the defendants, without legal justification or reasonable

10 cause, caused him to be shot with projectiles, including in the right lower abdomen, left side

11 abdomen, in the arm and in the back of the leg.
12 54. On April 7, 2003, while plaintiff WILLIE HAMLIN, a member of Local 10 of the ILWU,
13 was Astanding by@ with other union members, the defendants, without legal justification or 14
reasonable cause, caused him to be shot with a projectile on the back of his right hamstring area. 15
55. On April 7, 2003, while plaintiff ERNEST EVANS, a member of Local 10 of the ILWU, 16
was Astanding by@ with other union members, the defendants, without legal justification or 17
reasonable cause, caused him to be shot with a projectile in the back. 18 19 56. On April 7, 2003, while plaintiff DAVID LOVILLE, a member of Local 10 of the ILWU,
20 was Astanding by@ with other union members, the defendants, without legal justification or
21 reasonable cause, caused him to be shot with a projectile in the right buttock and damaged his

22 automobile with a concussion grenade.

23 57. On April 7, 2003, while plaintiff LAWRENCE MASSEY, a member of Local 10 of the

24 ILWU, was Astanding by@ with other union members, the defendants, without legal justification

25 or reasonable cause, caused him to be shot with projectiles in the back and buttocks.

26 58. 27

On April 7, 2003, plaintiff BYRON MOORE, SR., a member of Local 10 of the ILWU,

28

THIRD AMENDED COMPLAINT - 16

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page17 of 33

1 was Astanding by@ with other union members. When plaintiff MOORE realized the police were
2 shooting in the vicinity, he attempted to go to his car with the intention of immediately leaving
3 the area. As plaintiff MOORE was attempting to go to his car, the defendants, without legal
4
5 justification or reasonable cause, caused him to be shot with a projectile in the back near his right
6 shoulder and damaged his vehicle with a projectile.
7 59. On April 7, 2003, plaintiff JACK HEYMAN, a business agent for Local 10 of the ILWU,

8 was attempting to assist members of LOCAL 10 in the vicinity of the demonstration, when

9 defendants, without legal justification or reasonable cause, caused him to be subjected to

10 excessive force, including, but not limited to, knocking him to down and shoving his head into

11 the ground. Defendants also caused plaintiff HEYMAN to be arrested and imprisoned without
12 reasonable or probable cause to believe that he committed any crime. The criminal charges filed
13 against plaintiff HEYMAN following this incident were dismissed on or about April 22, 2004. 14
60. On April 7, 2003, plaintiff JOHN NISHINAGA was attending the April 7th 15
demonstration when defendants, without legal justification or reasonable cause, caused him to be 16
struck by a motorcycle and subsequently shot him with a projectile fired directly at him, 17
fracturing his hand. 18 19 61. On April 7, 2003, plaintiff WILLOW ROSENTHAL was attending the demonstration
20 when defendants, without legal justification or reasonable cause, caused her to be shot in the leg
21 as she fled, resulting in an injury which has necessitated surgery and will likely leave permanent

22 scarring and disfigurement.

23 62. On April 7, 2003, plaintiff JESSICA LAWRENCE was attending and videotaping the

24 demonstration when defendants, without legal justification or reasonable cause, caused her to be

25 shot in the thigh with a wooden dowel. 26

27

28

THIRD AMENDED COMPLAINT - 17

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page18 of 33

1 63. On April 7, 2003, plaintiff SCOTT P. FLEMING was attending the demonstration when
2 defendants, without legal justification or reasonable cause, caused him to be shot five times in
3 the back, shoulder, and under his arm with wooden dowels fired directly at him as he fled.
4
5 64. On April 7, 2003, plaintiff JENNIFER SCHOCKEMOEHL was attending the
6 demonstration when defendants, without legal justification or reasonable cause, caused her to be
7 shot in the back with a projectile.

8

9 65. On April 7, 2003, plaintiff JEFFERY CROW BOLT was attending the demonstration

10 when defendants, without legal justification or reasonable cause, caused him to be repeatedly

11 struck and run over by motorcycles and to be repeatedly shot with projectiles, which hit him in
12 numerous places including the arm, buttocks and upper body.
13 66. On April 7, 2003, plaintiff MATTHEW DODT was attending the demonstration when 14
defendants, without legal justification or reasonable cause, caused him to be repeatedly struck by 15
a motorcycle, and, as he was attempting to leave the area, caused him to be shot with projectiles 16
which struck him in the torso and hand. 17
67. On April 7, 2003, plaintiff REBECCA SONCHEK was attending the demonstration and 18 19 walking with other demonstrators on the sidewalk toward the Oakland Federal Building, when
20 defendants, without legal justification or reasonable cause, caused her to be struck twice with a
21 police club.

22 68. On April 7, 2003, plaintiff TERRENCE ENRIGHT was attending and videotaping the

23 demonstration when defendants, without legal justification or reasonable cause, caused him to be

24 struck with a police club and shot in the chest and leg with projectiles.

25

26

27

28

THIRD AMENDED COMPLAINT - 18

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page19 of 33

1 69. On April 7, 2003, plaintiff ARTHUR MARTINEZ was attending the demonstration when
2 defendants, without legal justification or reasonable cause, caused him to be shot in the leg with a
3 projectile.
4
5 70. On April 7, 2003, plaintiff LAWRENCE MENARD was attending the demonstration
6 when defendants, without legal justification or reasonable cause, caused a Asting ball@ grenade or
7 similar object to explode with deafening noise and released tear gas and/or other chemical agents

8 in close proximity to his head.

9

10 71. On April 7, 2003, plaintiff HENRY NORR was attending the demonstration when

11 defendants, without legal justification or reasonable cause, caused him to be shot with a
12 projectile in the leg.
13 72. On April 7, 2003, plaintiff STEVEN SAKALA was attending the demonstration when 14
defendants, without legal justification or reasonable cause, caused him to be choked, shot with 15
projectiles in the back, and exposed to tear gas and/or another chemical agents. 16
73. On April 7, 2003, plaintiff SUSAN QUINLAN was attending the demonstration when 17
defendants, without legal justification or reasonable cause, caused her to be shot with projectiles 18 19 in the arm and leg, and exposed to tear gas or other chemical agent.
20 74. On April 7, 2003, Plaintiff TIM RIDOLFI was attending and acting as a clearly identified
21 legal observer at the demonstration, when defendants, without legal justification or reasonable

22 cause, caused him to be shot with a projectile which struck him in the head.

23 75. On April 7, 2003, plaintiff ALICIA GROGAN-BROWN was attending the demonstration

24 when defendants, without legal justification or reasonable cause, caused her to be shot in the arm

25 with a projectile. 26

27

28

THIRD AMENDED COMPLAINT - 19

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page20 of 33

1 76. On April 7, 2003, plaintiff KENNETH HAYES was attending the demonstration when,
2 as he was attempting to leave the area, defendants, without legal justification or reasonable cause,
3 caused him to be shot in the foot with a projectile.
4
5 77. On April 7, 2003, plaintiff DEAN ROYER was attending and acting as a clearly
6 identified legal observer at the demonstration, when, as he was attempting to leave the area,
7 defendants, without legal justification or reasonable cause, caused him to be shot in the leg with a

8 projectile.

9 78. On April 7, 2003, plaintiff BERNADINE MELLIS was attending the demonstration

10 when, as she was attempting to leave the area, defendants, without legal justification or

11 reasonable cause, caused her to be struck in the back of her shoulder by a projectile.
12 79. On April 7, 2003, plaintiff THOMAS BECKER was attending the demonstration when,
13 as plaintiff BECKER was attempting to flee, defendants, without legal justification or reasonable 14
cause, caused him to be shot in the leg with a projectile. 15
80. On April 7, 2003, plaintiff PATRICIA AMAX@ RORTY was attending and acting as a 16
clearly identified legal observer at the demonstration, when, as she was walking on the side of the 17
road, defendants, including defendant M. RANDALL, without legal justification or reasonable 18 19 cause, caused her to be struck with a motorcycle, running over her foot.
20 81. On April 7, 2003, plaintiff JESSE CHRISTENSEN was attending the demonstration
21 when defendants, without legal justification or reasonable cause, caused him to be struck

22 repeatedly in the chest and other parts of his body with projectiles.

23 82. On April 7, 2003, plaintiff DIANA BOHN was attending the demonstration when, as she

24 was attempting to leave the area, defendants, without legal justification or reasonable cause,

25 caused her to be struck in the back with a projectile. 26

27

28

THIRD AMENDED COMPLAINT - 20

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page21 of 33

1 83. On April 7, 2003, plaintiff MILES MONTABANO was attending and acting as a
2 videographer in the vicinity of the demonstration when, as he was videotaping a woman being
3 shot, defendants, including the officer who had just shot the woman he was videotaping, without
4
5 legal justification or reasonable cause, caused plaintiff MONTABANO to be shot with a
6 projectile, which struck him in the arm he was using to hold the video camera.
7 84. On April 7, 2003, plaintiff NICHOLAS FRABASILIO was attending the demonstration

8 when, as he was attempting to flee, defendants, without legal justification or reasonable cause,

9 caused a Asting ball@ grenade or other projectile containing tear gas or other chemical agent to

10 explode at his feet, enveloping him in a cloud of such gas.

11 85. On April 7, 2003, plaintiff CYPRUS GONZALEZ was attending the demonstration
12 when, as he was attempting to flee, defendants, without legal justification or reasonable cause,
13 caused him to be struck in the back by a projectile. 14
86. On April 7, 2003, plaintiff KRISTIN MEEKER was attending the demonstration when, as 15
she was attempting to leave the area, defendants, without legal justification or reasonable cause, 16
caused her be struck repeatedly by a motorcycle. 17
87. On April 7, 2003, plaintiff ERIC SHAW was attending the demonstration and attempting 18 19 to walk away when defendants, without legal justification or reasonable cause, caused him to be
20 struck with a projectile in the calf.
21 88. On April 7, 2003, plaintiff VIOLETA FOREGGER was attending the demonstration and

22 attempting to walk away when defendants, without legal justification or reasonable cause, caused

23 her to be struck with a projectile in the buttock.

24 89. On April 7, 2003, plaintiff CHELSEA SMITH was attending the demonstration and

25 attempting to walk away when she was shot in the leg with a projectile without legal justification 26 or reasonable cause. 27

28

THIRD AMENDED COMPLAINT - 21

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page22 of 33

1 90. On April 7, 2003, plaintiff AIDAN KOTLER was attending the demonstration when
2 defendants, without legal justification or reasonable cause, caused him to be exposed to tear gas
3 or other chemical agent, and to be struck twice with projectiles. The second impact, in plaintiff=s
4
5 back as he ran away, destroyed personal property in plaintiff=s backpack.
6 91. On April 7, 2003, plaintiff LESLEY KRUEGER was attending the demonstration when
7 defendants, without legal justification or reasonable cause, caused her to be struck in the back

8 right shoulder area with a grenade or other projectile.

9 92. On April 7, 2003, plaintiff MARKO SAKMANN was attending and acting as a clearly

10 identified legal observer at the demonstration when defendants, without legal justification or

11 reasonable cause, caused him to be shot in the back of the head with a projectile. A few minutes
12 later, a sting ball grenade or similar weapon exploded with deafening noise near plaintiff
13 SAKMANN, resulting in further injuries and damages. 14
93. On April 7, 2003, plaintiff JUDITH MIRKINSON was attending the demonstration and 15
attempting to act as a liaison between demonstrators and police. She was trying to leave the area 16
when defendants, without legal justification or reasonable cause, caused her to be struck by 17
projectiles. 18 19 94. On April 7, 2003, plaintiff VAAHDAT SAADAT was attending the demonstration when
20 defendants, without legal justification or reasonable cause, caused him to be shot in the right
21 buttock with a projectile.

22 95. On April 7, 2003, plaintiff CLAY HINSON was attending the demonstration when he and

23 his bicycle were struck by an Oakland Police motorcycle. Subsequently, defendants, without

24 legal justification or reasonable cause, caused plaintiff HINSON to be shot in the chest, back and

25 leg with projectiles. 26

27

28

THIRD AMENDED COMPLAINT - 22

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page23 of 33

1 96. On April 7, 2003, plaintiff MARC DE GIERE was attending and acting as a videographer
2 in the vicinity of the demonstration when defendants, without legal justification or reasonable
3 cause, caused him to be shot with projectiles.
4
5 97. On April 7, 2003, plaintiff DAVID MARTINEZ was attending the demonstration when
6 defendants, without legal justification or reasonable cause, caused him to be shot with projectiles.
7 98. On April 7, 2003, plaintiff LAURA AARIEL@ GLENN was attending the demonstration as

8 a clearly identified legal observer when defendants, without legal justification or reasonable

9 cause, caused her to be arrested and imprisoned without reasonable or probable cause, and

10 subjected to excessive force which included placing her in handcuffs that caused pain and injury

11 to her wrists. The criminal charges filed against plaintiff GLENN following this incident were
12 dismissed on or about April 22, 2004.
13 99. On April 7, 2003, plaintiff SARAH KENNEDY was attending the demonstration as a 14
clearly identified legal observer when defendants, without legal justification or reasonable cause, 15
caused her to be shot with a projectile, arrested and imprisoned without reasonable or probable 16
cause to believe that she committed any crime. The criminal charges filed against plaintiff 17
KENNEDY following this incident were dismissed on or about April 22, 2004. 18 19 100. On April 7, 2003, plaintiff CLIFF CLOSE was attending the demonstration when
20 defendants, without legal justification or reasonable cause, caused him to be subjected to
21 excessive force, including, but not limited to, being struck with a baton, thrown into a fence,

22 knocked to the ground, kneed in the back, and had his head and face shoved into the ground.

23 Defendants also caused plaintiff CLOSE to be arrested and imprisoned without reasonable or

24 probable cause to believe that he committed any crime. The criminal charges filed against

25 plaintiff CLOSE following this incident were dismissed on or about April 22, 2004. 26

27

28

THIRD AMENDED COMPLAINT - 23

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page24 of 33

1 101. On April 7, 2003, plaintiff KATE SASSOON was attending the demonstration when
2 defendants, without legal justification or reasonable cause, caused her to be subjected to
3 excessive force, including, but not limited to, being knocked to the ground, having her face
4
5 shoved in the gravel and having her clothing torn. Defendants also caused plaintiff SASSOON
6 to be arrested and imprisoned without reasonable or probable cause to believe that she committed
7 any crime. The criminal charges filed against plaintiff SASSOON following this incident were

8 dismissed on or about April 22, 2004.

9

IX. REQUISITES FOR RELIEF

10 102. Plaintiffs are informed and believe that the violations of the plaintiffs= constitutional and

11 lawful rights complained of herein were caused by customs, policies, directives, practices, acts
12 and omissions of authorized policy makers of the defendant CITY OF OAKLAND, including
13 defendants WORD, HAW and other supervisory officials of the OPD and the City of Oakland, 14
which encouraged, authorized, directed, condoned, and ratified the unconstitutional and unlawful 15
conduct complained of herein. Said customs, policies and practices include, but are not limited 16
to the use of excessive and/or arbitrary force to disperse and control demonstrators and others 17
involved in expressive activities; the failure to maintain adequate policies, and to adequately 18 19 train, supervise and control OPD officers, concerning the policing of demonstrations and other
20 expressive activities with respect to crowd control, crowd dispersal and the constitutional
21 limitations on the use of force; and the failure to investigate and impose discipline on OPD

22 officers involved in the unconstitutional and unlawful actions complained of herein, and/or to

23 adopt other remedial measures and policies to insure that such violations of legal rights would

24 not recur.

25 103. As a direct and proximate result of the conduct of defendants described herein, the named 26 individual plaintiffs have been denied their constitutional, statutory and legal rights as stated 27

28

THIRD AMENDED COMPLAINT - 24

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page25 of 33

1 below, and have suffered, continue to suffer and will in the future suffer general and special
2 damages, including but not limited to, mental and emotional distress, physical injuries and bodily
3 harm, pain, fear, humiliation, embarrassment, discomfort, and anxiety, medical and related
4
5 expenses, and lost earnings in an amount according to proof.
6 104. Defendants= acts were willful, wanton, malicious and oppressive and done with conscious
7 disregard and deliberate indifference for plaintiffs= rights.

8 105. Defendants= policies, practices, customs, conduct and acts alleged herein have resulted

9 and will continue to result in irreparable injury to plaintiffs, including but not limited to

10 violations of their constitutional and statutory rights. Plaintiffs have no plain, adequate or

11 complete remedy at law to address the wrongs described herein. The demonstrator plaintiffs and
12 class members intend in the future to exercise their constitutional rights of freedom of speech and
13 association by engaging in demonstrations and expressive activities in the vicinity of the Port of 14
Oakland and in other public places in the City of Oakland. Defendants= conduct described herein 15
has created fear, anxiety and uncertainty among plaintiffs with respect to their exercise now and 16
in the future of these constitutional rights, and with respect to their physical security and safety. 17
Defendants= conduct described herein has also created fear, anxiety and uncertainty among 18 19 members and officers of LOCAL 10 with respect to their exercise of their associational and
20 organizational activities and with the right to work and move freely about the public streets,
21 without being subject to excessive force by the OPD, and with their physical security and safety.

22 Plaintiffs therefore seek injunctive relief from this court, to ensure that plaintiffs and persons

23 similarly situated will not suffer violations of their rights from defendants= illegal and

24 unconstitutional policies, customs and practices as described herein.

25 106. An actual controversy exists between plaintiffs and defendants in that plaintiffs contend 26 that the policies, practices and conduct of defendants alleged herein are unlawful and 27

28

THIRD AMENDED COMPLAINT - 25

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page26 of 33

1 unconstitutional, whereas plaintiffs are informed and believe that defendants contend that said
2 policies, practices and conduct are lawful and constitutional. Plaintiffs seek a declaration of
3
rights with respect to this controversy. 4

5

6

X.CLAIMS FOR RELIEF

7

FIRST CLAIM FOR RELIEF

8

Violation Of First And Fourteenth Amendments To The United States Constitution

9

(42 U.S.C. § 1983)

10 107. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 106 of this

11 complaint.
12 108. Defendants= above-described conduct violated plaintiffs= rights to freedom of speech and 13 association under the First and Fourteenth Amendments to the United States Constitution. 14

15 SECOND CLAIM FOR RELIEF
16 Violation Of Fourth And Fourteenth Amendments To United States Constitution
17 (42 U.S.C. § 1983)
18
19 109. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 108 of this
20 complaint.
21 110. Defendants= above-described conduct violated plaintiffs= rights to be free from

22 unreasonable seizures and excessive and/or arbitrary force and/or arrest and/or imprisonment

23 without reasonable or probable cause under the Fourth and Fourteenth Amendments to the

24 United States Constitution.

25

26

THIRD CLAIM FOR RELIEF

27

28

THIRD AMENDED COMPLAINT - 26

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page27 of 33

1 Violation Of Fourteenth Amendment To United States Constitution
2 (42 U.S.C. § 1983)
3 111. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 110 of this
4
5 complaint.
6 112. Defendants= above-described conduct violated plaintiffs= right to not be deprived of
7 liberty without due process of law under the Fourteenth Amendment to the United States

8 Constitution.

9

10

FOURTH CLAIM FOR RELIEF

11

Violation Of Fourteenth Amendment To United States Constitution

12

(42 U.S.C. § 1983)

13 113. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 112 of this

14 complaint.
15 114. Defendants= above-described conduct violated plaintiffs= rights to equal protection of the
16 laws under the Fourteenth Amendment to the United States Constitution.
17

18

19

FIFTH CLAIM FOR RELIEF

20

Violation of California Constitution, Article I, §§ 2 and 3

21 115. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

22 reference paragraphs 1 through 114 of this complaint.

23 116. Defendants= above-described conduct violated plaintiffs= rights to freedom of speech and

24 association, and to petition the government for redress of grievances, under article I, sections 2

25 and 3 of the California Constitution. 26

27

28

THIRD AMENDED COMPLAINT - 27

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page28 of 33

1 SIXTH CLAIM FOR RELIEF
2 Violation of California Constitution, Article I, § 13
3 117. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by
4
5 reference paragraphs 1 through 116 of this complaint.
6 118. Defendants= above-described conduct violated plaintiffs= right to be free from
7 unreasonable seizures and excessive and/or arbitrary force and/or arrest and/or imprisonment

8 without reasonable or probable cause under article I, section 13 of the California Constitution.

9

10

SEVENTH CLAIM FOR RELIEF

11

Violation of California Constitution, Article 1, § 7(A)

12 119. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

13 reference paragraphs 1 through 118 of this complaint.
14 120. Defendants= above-described conduct violated plaintiffs= right not to be deprived of
15 liberty without due process of law under article 1, section 7(a) of the California Constitution.
16

17

EIGHTH CLAIM FOR RELIEF 18

19

Violation of California Constitution, Article 1, § 7(A)

20 121. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

21 reference paragraphs 1 through 120 of this complaint.

22 122. Defendants= above-described conduct violated plaintiffs= right to equal protection of the

23 laws under article 1, section 7(a) of the California Constitution.

24

25

NINTH CLAIM FOR RELIEF

26

Violation of California Constitution, Article 1, § 1

27

28

THIRD AMENDED COMPLAINT - 28

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page29 of 33

1 123. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by
2 reference paragraphs 1 through 122 of this complaint.
3 124. Defendants= above-described conduct violated plaintiffs= right to informational privacy
4
5 under article I, section 1 of the California Constitution.

6

7

TENTH CLAIM FOR RELIEF

8

Violation of California Civil Code § 51.7

9 125. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

10 reference paragraphs 1 through 124 of this complaint.

11 126. Defendants= above-described conduct violated plaintiffs= right to be free from violence
12 and intimidation by threat of violence because of their actual or perceived political affiliation 13 and/or viewpoint and/or position in a labor dispute, in violation of California Civil Code section 14
51.7. 15

16 ELEVENTH CLAIM FOR RELIEF
17 Violation of California Civil Code § 52.1
18 19 127. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by
20 reference paragraphs 1 through 126 of this complaint.
21 128. Defendants= above-described conduct constituted interference, and attempted interference,

22 by threats, intimidation and coercion, with plaintiffs= peaceable exercise and enjoyment of rights

23 secured by the Constitution and laws of the United States and the State of California, in violation

24 of California Civil Code section 52.1.

25

26

TWELFTH CLAIM FOR RELIEF

27

28

THIRD AMENDED COMPLAINT - 29

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page30 of 33

1 Assault And Battery
2 129. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by
3 reference paragraphs 1 through 128 of this complaint.
4
5 130. Defendants= above-described conduct constituted assault and battery on the named
6 individual plaintiffs.

7

8

THIRTEENTH CLAIM FOR RELIEF

9

Intentional Infliction Of Emotional Distress

10 131. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

11 reference paragraphs 1 through 130 of this complaint.
12 132. Defendants' above-described conduct was extreme, unreasonable and outrageous.
13 133. In engaging in the above-described conduct, defendants intentionally ignored or 14
recklessly disregarded the foreseeable risk that the named individual plaintiffs would suffer 15
extreme emotional distress as a result of defendants' conduct. 16

17

FOURTEENTH CLAIM FOR RELIEF 18

19

Negligence

20 134. Plaintiffs, with the exception of DAVID MARTINEZ, re-allege and incorporate by

21 reference paragraphs 1 through 133 of this complaint.

22 135. Defendants have a duty of care to plaintiffs to ensure that defendants did not cause

23 unnecessary or unjustified harm to the named individual plaintiffs and a duty of care to hire,

24 train, supervise and discipline OPD officers so as to not cause harm to plaintiffs and to prevent

25 violations of plaintiffs= constitutional, statutory and common law rights. 26 136. The above-described acts and omissions of defendants breached the duty of care 27

28

THIRD AMENDED COMPLAINT - 30

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page31 of 33

1 defendants owed to the named individual plaintiffs.
2

3

FIFTEENTH CLAIM FOR RELIEF 4

5

False Arrest and Imprisonment

6 137. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 136 of this

7 complaint.

8 138. Plaintiffs LAURA AARIEL@ GLENN, SARAH KENNEDY, CLIFF CLOSE, KATE

9 SASSOON and JACK HEYMAN were arrested and imprisoned without reasonable or probable

10 cause to believe that they committed any crime. The criminal charges filed against them

11 following this incident were dismissed on or about April 22, 2004. 12

13

XI. PRAYER

14 WHEREFORE, plaintiffs pray for judgment against defendants, and each of them,

15 as follows:
16
1. For an order certifying the class defined herein pursuant to Federal Rules of Civil 17

Procedure Rule 23(b)(2); 18

19

2. For preliminary and permanent injunctive relief restraining defendants from engaging

20 in the unlawful and unconstitutional actions complained of above;

21

3. For a declaratory judgment that defendants= conduct complained of herein was a

22 violation of plaintiffs= rights under the Constitution and laws of the United States and California;

23

4. For the individual named plaintiffs, general and compensatory damages to be

24 determined according to proof;

25

5. For the individual named plaintiffs, special damages, including but not limited to

26 medical and related expenses, wage loss and/or damage to career; interruption and/or interference

27

28

THIRD AMENDED COMPLAINT - 31

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page32 of 33

1 with school and/or internship and/or similar pursuits;

2
6. For punitive and exemplary damages in amounts to be determined according to proof 3

as to the individual defendants; 4

5

7. For an award of statutory damages and penalties pursuant to Cal. Civil Code section

6 52(b) to be determined according to proof;

7

8. For attorneys' fees pursuant to 42 U.S.C. ' 1988 and California Civil Code section

8 52(b) and section 52.1(h), and California Code of Civil Procedure section 1021.5;

9

9. For costs of suit;

10

10. For pre- and post-judgment interest as permitted by law;

11

11. For such other and further relief as the Court may deem just and proper.

12

13

JURY TRIAL DEMAND

14 Plaintiffs hereby demand a jury trial.

15

16 DATED: September 16, 2004 17

By /s/ James B. Chanin

18

19

James B. Chanin

20

Attorneys for Plaintiffs

21

22

23

24

25

26

27

28

THIRD AMENDED COMPLAINT - 32

Case3:03-cv-02962-TEH Document25 Filed09/16/04 Page33 of 33

1 PROOF OF SERVICE
2 I am a citizen of the United States and am employed in the City and County of San
3 Francisco. I am over 18 years of age and not a party to the within action. My business address is
4
5 558 Capp Street, San Francisco, CA 94110. On the date specified below, I served the attached:

6

THIRD AMENDED COMPLAINT

7 on the interested parties by causing a true copy thereof to be deposited in the United States mail

8 at San Francisco, CA, postage fully prepaid:
GREGORY M. FOX 9 BERTRAND, FOX & ELLIOTT
10 The Waterfront Building - 2749 Hyde Street San Francisco, CA 94109
11
MICHAEL J. HADDAD 12 JULIA SHERWIN
13 HADDAD & SHERWIN 505 Seventeenth Street
14 Oakland, California 94612

15

I declare under penalty of perjury that the foregoing is true and correct.

16 Executed this September 16, 2004, at San Francisco, California.
17

18

/s/

19

20

21

22

23

24

25

26

27

28

 
 Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page1 of 22

1 Gregory M. Fox, State Bar No. 070876 Arlene C. Helfrich, State Bar No. 096461
2 BERTRAND, FOX & ELLIOT The Waterfront Building
3 2749 Hyde Street San Francisco, California 94109
4 Telephone: (415) 353-0999 Facsimile: (415) 353-0990
5

6 Randolph W. Hall, State Bar No. 080142 Chief Asst. City Attorney
7 Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor
8 Oakland CA 94612 Telephone: (510) 238-3601
9 Facsimile: (510) 238-6500

10 Attorneys for Defendants CITY OF OAKLAND
11 and POLICE CHIEF RICHARD WORD, et al.

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 LOCAL 10, INTERNATIONAL LONGSHORE ) File No. C -03-2962 TEH (JL)

AND WAREHOUSE UNION, et al., 16

) ) DEFENDANT CITY OF OAKLAND’S

17

Plaintiffs,

vs.

) NOTICE OF MOTION AND MOTION FOR ) SUMMARY JUDGMENT AGAINST

18

) PLAINTIFF LOCAL 10, INTERNATIONAL

CITY OF OAKLAND; et al., 19

) LONGSHORE AND WAREHOUSE UNION )

20

Defendants.

21

) Date: November 28, 2005
) Time: 10:00 a.m. Dept: Courtroom 12, 19th Floor

22

Honorable Thelton E. Henderson

23

24

25

26

27

28

DEFENDANT CITY OF OAKLAND’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION

Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page2 of 22

1

TABLE OF CONTENTS

2

3

I. INTRODUCTION .....................................................................................................................1

4 II. STATEMENT OF FACTS ........................................................................................................2

5

A. FACTS REGARDING COLLECTION OF INFORMATION ABOUT

6

ILWU ACTIVITIES ......................................................................................................3

7

B. FACTS REGARDING DEFENDANTS’ ACTIONS DIRECTED AT

8

LOCAL 10 MEMBERS.................................................................................................3

9

1. Longshoremen Plaintiffs At East SSA Gate .............................................3

10 2. Jack Heyman’s Arrest ...............................................................................6
11

12

III. LEGAL ARGUMENT...............................................................................................................7

13

A. REQUIREMENTS FOR SUMMARY JUDGMENT....................................................7

14

B. THERE IS A COMPLETE FAILURE OF PROOF TO SUPPORT

15

LOCAL 10’S ALLEGATIONS OF INJJRY.................................................................7

16

C. PLAINTIFF LOCAL 10 IS UNABLE TO DEMONSTRATE STANDING

TO BRING CLAIMS ON ITS OWN BEHALF............................................................9 17

18

1. Local 10 Has No Standing To Bring Federal Claims ...............................9

19

2. Local 10 Has No Standing To Bring Claims Under the

California Civil Code..............................................................................10 20

21

3. Local 10 Has No Standing To Bring State Tort Claims .........................10

22

D. LOCAL 10 DOES NOT HAVE REPRESENTATIVE STANDING TO

23

BRING THE CLAIMS ALLEGED IN THE THIRD AMENDED COMPLAINT ..............................................................................................................11

24

1. Local 10 Does Not Have Representative Standing To Bring §

25

1983 Claims ............................................................................................11

26

2. Local 10 Does Not Have Representational Standing To Bring

27

Civil Code Claim ....................................................................................12

28

3. Local 10 Does Not Have Standing To Bring Tort Claims On

Behalf Of Its Members............................................................................12

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1

E. LOCAL 10 HAS FAILED TO COMPLY WITH THE CALIFORNIA

GOVERNMENT TORT CLAIMS ACT .....................................................................12

2

3

F. LOCAL 10’S STATE CONSTITUTIONAL CLAIMS SHOULD BE DISMISSED AS THEY ARE NOT SUPPORTE BY EVIDENCE AND

4

THEY DO NOT SUPPORT A CAUSE OF ACTION FOR DAMAGES...................13

5

1. No Evidence Supports Local 10’s Allegation of State

Constitutional Violations ........................................................................14

6

7

2. State Constitutional Claims Do Not Provide For Recovery of

Money Damages .....................................................................................14

8

IV. CONCLUSION........................................................................................................................15 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 State Cases
3 Barbara A. v. John G. (1983) 145 Cal.App.3d 369 ...............................................................................................................11
4 Bonner v. City of Santa Ana
5 (1996) 45 Cal.App.4th 1465 ..............................................................................................................15

6 Bradley v. Medical Board (1997) 56 Cal. App. 4th 445 ...............................................................................................................15
7

8

City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803 ...................................................................................................................12

9 Cummings v. Fire Ins. Exchange 10 (1988) 202 Cal.App.3d 1407 .............................................................................................................12

11

Davidson v. City of Westminster (1982) 32 Cal.3d 197 .........................................................................................................................11

12 Fall River Joint Unified School Dist. v. Superior Court 13 (1988) 206 Cal.App.3d 431 ...............................................................................................................14

14

Gatto v. County of Sonoma 98 Cal. App. 4th 744, 764 (2002) ......................................................................................................14

15 Hernandez v. McClanahan 16 996 F. Supp. 975 (9th Cir. 1998) .......................................................................................................14

17

Javor v. Taggart (2002) 98 Cal.App.4th, 795 ................................................................................................................15

18 Katzberg v. Regents
19 (2002) 29 Cal.4th 300 ...................................................................................................................15, 16

20 Loury v. Standard Oil Co. (1944) 63 Cal.App.2d 1 .....................................................................................................................12
21 Midpeninsula Citizens for Fair Housing v. Westwood Investors.
22 (1990) 221 Cal.App.3d 1377 .............................................................................................................11

23 Onick v. Long (1957) 154 Cal.App.2d 381 ...............................................................................................................12
24 Pacific Tel. & Tel. Co. v. County of Riverside
25 (1980) 106 Cal.App.3d 183, 188 .......................................................................................................14

26 Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035 .............................................................................................................11
27 United States v. State of California,
28 655 F.2d 914, 918. (9th Cir. 1980) ....................................................................................................14

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1

2 State Statutes 3 California Civil Code Section 52.1.......................................................................................................13

4 Civ. Code, § 51.7 ............................................................................................................................11, 13

5 Civ. Code, § 52.1 ......................................................................................................................11, 13, 14

6 Gov’t Code Section 950.2.....................................................................................................................14

7 Government Code Section 945.4 ..........................................................................................................14

8 Government Tort Claims Act........................................................................................................2, 3, 13

9 Federal Cases

10 Allee v. Medrano (1974) 416 U.S. 802...........................................................................................................................10
11

12

Baker v. Carr (1962) 369 U.S. 186...........................................................................................................................10

13 Celotex v. Catret 14 (1986) 477 U.S. 317............................................................................................................................8

15

Director, Office of Workers Comp. Programs v Greenwich Collieries (1994) 512 U.S. 267............................................................................................................................9

16 Linda R.S. v. Richard D. 17 (1973) 410 U.S. 614...........................................................................................................................10

18

Lujan v. Defenders of Wildlife (1992) 504 U.S. 555..........................................................................................................................13

19 Masson v. New Yorker Magazine, Inc. 20 (1991) 501 U.S. 496............................................................................................................................8

21

Matsushita Elec. Indus. Co. v. Zenith Radio (1986) 475 U.S. 574............................................................................................................................8

22 McLaughlin v. Tilendis 23 (7th Cir. 1968) 398 F.2d 287 .............................................................................................................10

24 NAACP v. Alabama (1958) 357 U.S. 449...........................................................................................................................12
25 National Treasury Employees Union v. King
26 (1992) 798 F.Supp. 780 ....................................................................................................................10

27 Rose v. City of Los Angeles (1993) 814. F. Supp 878 ...................................................................................................................13
28

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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page6 of 22
1 Smith v. Arkansas State Highway Employees (1979) 441 U.S. 463..........................................................................................................................10
2 T.W. Electric Serv. v. Pacific Electrical Contractors
3 (9th Cir. 1997) 809 F.2d 626 ...............................................................................................................8 4 Warth v. Seldin
(1975) 422 U.S. 490....................................................................................................................10, 12 5 6 Federal Statutes
42 U.S.C. § 1983.......................................................................................................................10, 11, 12 7 8 Fed, Rules Civ.Proc., rule 56(c)..............................................................................................................8 9 Constitutions 10 Article III of the United States Constitution .........................................................................................10 11 Cal. Const., art. I, § 1 ......................................................................................................................15, 16 12 Cal. Const., art. I, § 2 ............................................................................................................................14 13 Cal. Const., art. I, § 3 ............................................................................................................................14 14 Cal. Const., art. I, § 7 ............................................................................................................................15 15 Cal. Const., art. I, § 7(A).......................................................................................................................15 16 Cal., Const., art. I, § 13 ...................................................................................................................15, 16 17 U.S. Const., 14th Amend. .....................................................................................................................10 18 U.S. Const., 1st Amend. ........................................................................................................................10 19 Other Authorities 20 Merriam-Webster's Dictionary of Law (1996) .....................................................................................12 21 22 23 24 25 26 27 28
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1

NOTICE OF MOTION FOR SUMMARY JUDGMENT

2

PLEASE TAKE NOTICE THAT defendants, CITY OF OAKLAND and all OPD officer

3 defendants, will move the court at the time and place specified above, for summary judgment against

4 plaintiff LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, on all

5 causes of action in the Third Amended Complaint.

6

This motion is based on Defendants’ contention that: 1) There is a complete lack of proof that

7 defendants gathered intelligence about Local 10 in an unlawful manner; 2) There is a complete lack

8 of proof that defendants took any action against any plaintiff because of hostility, animus and

9 discrimination against Local 10 or its members; 3) Local 10 lacks standing to bring suit on either its

10 own behalf or in its representational capacity; 4) Local 10 failed to comply with the California Tort

11 Claims Act; and 5) Local 10’s claims under the California Constitution are not supported by evidence

12 and provide no basis for recovery.

13

The motion will be made based upon this notice of motion and motion, the declarations of

14 Gregory M. Fox, Deputy Chief Howard Jordan, Captain Rod Yee, Lieutenant Ed Tracey, Sergeant

15 Julia Kurzrock (Ret.), Elida Paredes and Alexander Jason, as well as the records contained in the

16 court’s file in this matter, and such further evidence, whether documentary or oral, as may be

17 presented at the time of the noticed hearing.

18

I. INTRODUCTION

19

This action arises from the interaction of Oakland Police and the plaintiffs during an anti-Iraq

20 war demonstration which occurred at the Port of Oakland on April 7, 2003. Plaintiff LOCAL 10,

21 INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (Local 10) has joined in all fifteen

22 causes of action in the Third Amended Complaint (TAC), suing “on its own behalf and in its

23 representative capacity on behalf of its officers and members . . . .” (TAC ¶ 5). All of Local 10’s

24 claims are based on two allegations in the TAC: first, that OPD gathered intelligence about Local

25 10’s anti-war and associational activities in a manner that was “overbroad, unnecessary and

26 unjustified by an legitimate law enforcement purpose” (TAC ¶ 30), and, second, that OPD

27 “deliberately singled out and aimed their weapons and otherwise directed force at and engaged in the

28 other conduct described herein against plaintiff Local 10 and its officers and members because of

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1 hostility, animus and discrimination against the ILWU as an organization and against members and

2 officers affiliated with the ILWU.” (TAC ¶ 48).

3

Defendants move for summary judgment against plaintiff Local 10 on all causes of action

4 because: 1) There is a complete lack of proof that defendants gathered intelligence about Local 10 in

5 an unlawful manner; 2) There is a complete lack of proof that defendants took any action against any

6 plaintiff because of hostility, animus and discrimination against the ILWU or its members; 3) Local

7 10 lacks standing to bring suit on either its own behalf or in its representational capacity; 4) Local 10

8 failed to comply with the California Tort Claims Act; and 5) Local 10’s claims under the California

9 Constitution are not supported by evidence and provide no basis for recovery.

10

II. STATEMENT OF FACTS

11

Defendants present the facts pertinent to Local 10’s two allegations of actionable wrongdoing

12 by defendants: first, regarding defendants’ collection of information about Local 10’s activities, and

13 second, regarding the alleged targeting of Local 10 members by defendants due to animus and

14 hostility toward Local 10. Facts regarding the Local 10 member-plaintiffs who were subjected to the

15 putatively wrongful acts of defendants are presented in connection with the only two events at the

16 Port demonstration which involved Local 10 members. The first event concerns defendants’ use of 17 less lethal munitions at the East SSA gate.1 At that location, Local 10 member-longshoremen-

18 plaintiffs Allen Chapman, Christopher Clay, Ernest Evans, Billy Kepo’o, Lawrence Massey and

19 Byron Moore, Jr., (hereinafter referred to collectively as longshoremen plaintiffs) all allege that they 20 were struck by less lethal projectiles while waiting to enter the Port to report to work.2 The second

21 event involves the only remaining Local 10 member-plaintiff; the Local 10 business agent, Jack

22 Heyman. Mr. Heyman does not allege any injury from less lethal munitions. Rather, he alleges that

23 he was wrongfully arrested with excessive force near the West SSA gate.

24

All deposition citations refer to the deponent and the exhibit number where that deposition

25
26 1 SSA refers to Stevedoring Services of America. A map of the Oakland Port is attached to the Fox Dec. at Ex. 1, and
the locations referred to herein are clearly indicated on that map.
27
2 Longshoremen plaintiffs Silas Dunn, Willie Hamlin and David Loville also allege receiving injuries from less lethal
28 projectiles at this location, however, these three plaintiffs have settled their claims against defendants.

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1 testimony has been authenticated in the Declaration of Gregory M. Fox filed in support of this

2 motion.

3 A. FACTS REGARDING COLLECTION OF INFORMATION ABOUT ILWU ACTIVITIES

4

Defendants are not aware of any facts which support Local 10’s allegation that OPD gathered

5 intelligence about Local 10’s anti-war and associational activities in a manner that was overbroad,

6 unnecessary and unjustified. OPD’s Port protest Incident Commander, Captain Rod Yee, testifies

7 that he is not aware that OPD engaged in any gathering of intelligence or information about any

8 activities of Local 10 or its members prior to the April 7, 2003 Port protest. Capt. Yee states he did

9 not instruct anyone at OPD to research or otherwise investigate Local 10, and he has no information 10 that anyone at OPD ever undertook such an investigation or research.3 To defendants’ knowledge,

11 discovery has not revealed any facts supportive of this allegation by Local 10.

12 B. FACTS REGARDING DEFENDANTS’ ACTIONS DIRECTED AT LOCAL 10 MEMBERS

13

1. Longshoremen Plaintiffs At East SSA Gate

14

On the morning of April 7, 2003, a number of longshoremen arrived at the Port to report to

15 work and found Port entry gates blocked by anti-war demonstrators.4 Pursuant to the Local 10 union

16 contract, the longshoremen do not cross a picket line until a labor arbitrator arrives to decide if Local

17 10 members should or should not honor the picket. In light of the anti-war picketers at the job site, 18 the longshoremen ‘stood by’, awaiting an arbitrator and further instructions from union officials. 5 19 While some non-plaintiff longshoremen ‘stood by’ at different locations at the Port,6 the 20 Longshoremen plaintiffs gathered in the middle of Middle Harbor Road, outside the East SSA gate.7

21 Several of these Longshoremen plaintiffs had parked their cars in the east bound center divider lane

22 of Middle Harbor Road, and as additional longshoremen arrived at the Port, they gathered near these

23

24 3 Yee Decl., ¶ 2
4 Massey Dep. 65:11 – 66:25 (Exhibit A); Clay Dep. 25:3-21; 29:3-23 (Exhibit B)
25 5 TAC ¶ 34; Clay Dep. 17:9 – 18:8, (Exhibit B); Massey Dep. 67:7 – 68:24, (Exhibit A); Moore Dep. 39:21-40:5

26

(Exhibit H). 6 Heyman Dep.96:6-23, (Exhibit C); Kepo’o Dep. 103:7 – 104:13, (Exhibit D); Massey Dep. 80:21 – 81:23, (Exhibit A)

27 7 Chapman Dep. 21:7 – 23:7, (Exhibit E); Clay Dep. 32:11-16; 34:8-14, (Exhibit B); Kepo’o Dep.105:18 – 106:19;
115:20 – 116:13, (Exhibit D); Massey Dep. 65:2-5, (Exhibit A); Moore Dep., 38:7 – 39:4 (Exhibit H).

28

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1 vehicles and ‘stood by’, waiting to receive further instructions about attending work.8 Protestors

2 circled in a picket line at the East SSA gate, immediately to the south of the area on Middle Harbor 3 Road where the Longshoremen plaintiffs stood waiting.9

4

After ‘standing by’ at that location for more than thirty minutes, the Longshoremen plaintiffs

5 observed that another group of demonstrators was approaching their location, moving westerly on 6 Middle Harbor Road from the direction of the West APL gate. 10 Plaintiff Massey, who also works 7 as a corrections officer for the California Department of Corrections11, testified that he observed an

8 OPD skirmish line forming behind the crowd, and then moving the crowd toward where the 9 Longshoremen plaintiffs were located.12 Plaintiff Kepo’o testified that this large crowd of protestors

10 eventually reached and were “milling” in the area where the Longshoremen plaintiffs were standing,

11 and that while the police line was still some distance from the protestors and Longshoremen 12 plaintiffs, Mr. Kepo’o heard the police announce that the protestors should disperse. 13

13

After the crowd of protestors moved to the location of the Longshoremen plaintiffs, a

14 skirmish line of OPD motorcycles arrived and stood across the street from the Longshoremen 15 plaintiffs’ position.14 Several of the Longshoremen plaintiffs heard a dispersal order given, which

16 they understood to apply only to the protestors, and not to the longshoremen waiting to go to work. 17 Therefore, the Longshoremen plaintiffs did not disperse when police approached.15

18

The Longshoremen plaintiffs were dressed for work in sweat shirts, tee shirts and jeans. They

19

20 8 Massey Dep. 69:17 – 71:6, (Exhibit A); Chapman Dep., 22:13-23:9, (Exhibit E); Kepo’o Dep.106:11 – 108:20,

(Exhibit D); Moore Dep. 39:21-40:5 (Exhibit H).

21 9 Kepo’o Dep. 105:18 - 106:5, (Exhibit D)

10 Chapman Dep. 34:2-14, (Exhibit E); Kepo’o Dep. 116:2 – 119:22; 143:17 – 144:17, (Exhibit D); Massey Dep., 82:2 –
22 83:18, (Exhibit A); Moore Dep., 41:15-23 (Exhibit H).

23

11 Massey Dep., 12:2-13 (Exhibit A) 12 Massey Dep., 76:4 – 78:16; 82:2 – 83:18, (Exhibit A)

24 13 Kepo’o Dep. 119:20-22; 143:17 – 145:8, (Exhibit D); See also, Massey Dep. 82:2 – 83:18, (Exhibit A); Jason Dec.

Exhibit A; Fox Dec., ¶ 10.
25 14 Clay Dep.34:8 – 38:21, (Exhibit B);
15 Kepo’o Dep. 144:18 - 145:8; 146:19 – 147:14, (Exhibit D); Massey Dep. 79:19 – 80:4; 83:19 -23, (Exhibit A);
26 Chapman Dep. 39:11–23; 44:4-7, (Exhibit E); Clay Dep. 37:1-12, (Exhibit B);

27

28

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1 did not wear clothing that identified them as members of Local 10.16 When Incident Commander

2 Captain Rod Yee observed the crowd gathered at the East SSA gate, he did not recognize or 3 otherwise identify any member of the crowd as being a member of Local 10.17 OPD command staff

4 Lieutenant Howard Jordan and Sergeant Ed Tracey were also present at the East SSA gate and had

5 time to observe the crowd of protestors prior to the deployment of less lethal at that location. Neither

6 Lt. Jordan nor Sgt. Tracey recognized any member of the crowd assembled at the East SSA gate as 7 being members of Local 10.18 After two dispersal orders, and after the approach of the police

8 skirmish line failed to disperse the crowd assembled at the East SSA gate, Capt. Yee made the

9 decision to use less lethal munitions to attempt to disperse the crowd. Less lethal munitions had been

10 briefly deployed approximately thirty minutes earlier, just west of the West APL gate, and that tactic

11 had successfully dispersed demonstrators who remained non-responsive to less intrusive dispersal 12 tactics.19 The only OPD officers who were authorized to deploy less lethal munitions at the Port were

13 members of the Red and Blue Tango Teams. Only the Red Tango Team was present at the East SSA

14 gate when less lethal was deployed there. When Capt. Yee authorized the Tango Team to deploy less

15 lethal at the East SSA gate, the Tango Team officers were instructed to target only aggressive or non-

16 dispersing protestors. Longshoremen plaintiffs at the East SSA gate were targeted with less lethal 17 projectiles because they appeared to be protestors who were not dispersing.20

18

Several Longshoremen plaintiffs testified that they did not know if they had been targeted by

19 OPD due to their affiliation with Local 10.21 Plaintiff Clay testified that an OPD officer he spoke

20 with after being fired upon expressed surprise and regret when informed that OPD had fired upon 21 longshoremen.22 Plaintiff Massey testified that he had observed OPD assisting another group of

22

23 16 Chapman Dep. 62:8 – 63:11, (Exhibit E); Clay Dep. 43:2-21, (Exhibit B); Kepo’o Dep. 82:10-15; 95:11 – 96:9; 119:7-

19 (Exhibit D); Massey Dep. 63:19 – 65:1; 100:21 – 101:10, (Exhibit A); Evans Dep., 67:14-69:4, (Exhibit G); Moore

24

Dep. 61: 14-25 (Exhibit H).

17 Yee Dec., ¶ 3
25 18 Jordan Dec. ¶ 3; Tracey Dec. ¶ 2.

26

19 Yee Dec., ¶ 3 20 Yee Dec. ¶ 3, Jordan Dec. ¶ 3, Tracey Dec. ¶ 2

27 21 Clay Dep. 55:12-23, (Exhibit B); Massey Dep. 91:9 – 92:13 (Exhibit A)

22 Clay Dep. 59:3 – 60:19, (Exhibit B)

28

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1 longshoremen to enter the Port once protestors had been cleared from the East SSA gate.23

2

2. Jack Heyman’s Arrest

3

Plaintiff Jack Heyman is a member of Local 10, and on the day of the Port protest he was

4 acting as a business agent for Local 10.24 Over the course of the early morning, Mr. Heyman arrived

5 early at the Port, introduced himself to Capt. Yee while at the East APL gate, observed that OPD

6 deployed less lethal munitions to disperse the protestors west of the West APL gate, and was advised 7 that longshoremen had been injured near the East SSA gate.25 After discussing the situation with

8 other union officials at the East SSA gate, Mr. Heyman endeavored to travel toward another SSA

9 gate to alert the longshoremen waiting there about what had occurred at the East SSA gate. To

10 accomplish this, Mr. Heyman drove his car slowly through a number of parked OPD vehicles and

11 toward the police skirmish line that was assembled at the West SSA gate, at the intersection of 12 Middle Harbor Road and Maritime Street.26 As Mr. Heyman’s vehicle approached the rear of the

13 police motorcycle skirmish line, Sgt. Julia Kurzrock, who was about one and one/half lanes away, 14 instructed Mr. Heyman to stop his car.27 Mr. Heyman identified himself as a union official and

15 indicated that he needed to get through the police line, and he recalls Sgt. Kurzrock responding “I 16 don’t care. Park your car.” 28 There is a factual dispute regarding whether Mr. Heyman obeyed Sgt.

17 Kurzrock’s directive to stop and park his car. Sgt. Kurzrock testified that she repeatedly told Mr.

18 Heyman to stop his car, and that he would be arrested if he failed to do so, but he continued to drive 19 slowly forward until she reached in and turned off his engine. She then arrested him.29 Mr. Heyman 20 testified that he stopped his vehicle when instructed to do so.30 However, Mr. Heyman testified that

21 during the entire time of his arrest, he did not recall any police officer make any reference to his

22 union membership, nor did any police officer use any derogatory language, epithets or obscenities to

23

24 23 Massey Dep. 80:21 – 81:23, (Exhibit A)

24 Heyman Dep. 92:1-17; 95:17-23, (Exhibit C)

25 25 Heyman Dep. 95:6 – 96:4; 112:21 – 114:16; 119:22 – 120:17, (Exhibit C)

26

26 Heyman Dep. 123:10 – 130:13, (Exhibit C); Jason Dec., Exhibit B, Fox Dec. ¶ 11 27 Heyman Dep. 130:14-17, (Exhibit C); Kurzrock Dep.38:17 – 40:25, (Exhibit F)

27 28 Heyman Dep. 133:5 – 134:18, (Exhibit C); See also, Kurzrock Dep. 38:17 – 41:22, (Exhibit F)

29 Kurzrock Dep. 42:22 - 48:13; 58:7 – 59:18, (Exhibit F)

28 30 Heyman Dep. 134:19 – 135:19 (Exhibit C)

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1 Mr. Heyman.31

2

Sgt. Kurzrock testifies that her reason for arresting Mr. Heyman was because he failed to

3 follow Sgt. Kurzrock’s lawful order to stop his car, and that Mr. Heyman’s membership in Local 10 4 did not play any role in her decision to arrest Mr. Heyman.32

5

III. LEGAL ARGUMENT

6

A. REQUIREMENTS FOR SUMMARY JUDGMENT

7

FRCP Rule 56(c) provides that summary judgment is proper when there are no genuine issues

8 as to any material fact. The purpose of summary judgment is to “isolate and dispose of factually

9 unsupported claims or defenses.” Celotex v. Catret,(1986) 477 U.S. 317, 323-324. Defendants must

10 first meet their burden to demonstrate, by deposition testimony, affidavits, and other admissible

11 evidence, the absence of a genuine issue of material fact. If defendants meet this burden, this Court 12 must then determine “whether the specific facts set forth by the non-movant, coupled with undisputed 13 background or contextual facts, are such that a rational or reasonable jury might return a verdict in its 14 favor based on that evidence.” T.W. Electric Serv. v. Pacific Electrical Contractors (9th Cir. 1997) 15 809 F.2d 626. “Where the record taken as a whole could not lead a rational trier of fact to find for the 16 non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio 17 (1986) 475 U.S. 574, 587. In reviewing the evidence presented by the parties, the Court must draw 18 all reasonable inferences in favor of the non-moving party. Masson v. New Yorker Magazine, Inc.

19 (1991) 501 U.S. 496, 520.
20 B. THERE IS A COMPLETE FAILURE OF PROOF TO SUPPORT LOCAL 10’S ALLEGATION OF INJURY
21 Initially, defendants argue that, as outlined in the statement of facts reviewed above, there is
22 no evidence to support Local 10’s allegation that it has been deprived of any constitutional rights or
23 has been subject to any torts. Local 10 alleges putatively illegal action on the part of defendants for
24 1) collecting information about Local 10 in a manner that was unlawful, and 2) deliberately targeting
25 Local 10 members with uses of force or arrest because of hostility, animus and discrimination against
26
27
31 Heyman Dep. 147:12-24, (Exhibit C)
28 32 Kurzrock Decl., ¶ 3

7
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1 Local 10. Local 10 is unable to present any evidence to support either of these allegations.

2

There is no evidence that defendants undertook any unlawful investigation of Local 10.

3

The only Local 10 members subjected to police use of force or arrest at the Port protest are

4 the longshoremen present at the East SSA gate, and Jack Heyman, who was arrested near the West

5 SSA gate. The longshoremen plaintiffs who were injured at the East SSA gate admit that they stood

6 amid a large crowd of protestors, wore nothing to identify or otherwise distinguish themselves from

7 protestors, and failed to disperse following police dispersal orders. Unless there is evidence that

8 police knew them to be Local 10 members when they were fired upon, there is no proof of any

9 animus, hostility of discrimination on the part of defendants toward members of Local 10. There is

10 no such evidence, and Local 10’s claims of constitutional injury based on intentional targeting of

11 longshoremen at the East SSA gate must fail.

12

Mr. Heyman admits that he was arrested while attempting to drive through a police line that

13 was actively involved in crowd control operations. This admitted actions just prior to his arrest – an

14 unauthorized person attempting to drive through a police line during an active police engagement –

15 placed him in a situation antagonistic to police regardless of his union affiliation. The fact of his

16 membership in Local 10 at the time of this arrest does not evidence unconstitutional animus, hostility

17 or discrimination by defendants against Local 10 any more than the fact that he was over 60 at the

18 time of his arrest evidences age discrimination on the part of defendants. Plaintiff must proffer

19 sufficient evidence to allow a reasonable jury to infer that discrimination against Local 10 members

20 was a motivating factor in Mr. Heyman’s arrest, but there is no such evidence in this action.

21

Defendants argue that there is a complete lack of proof to support either of Local 10’s

22 allegations of wrongdoing on the part of defendants. Local 10 has the burden of coming forward

23 with evidence to support its claims, Director, Office of Workers Comp. Programs v Greenwich

24 Collieries (1994) 512 U.S. 267, 273, but Local 10 has failed to produce any evidence of any

25 constitutional injury to Local 10 or its members because of their union membership. Therefore,

26 Local 10 cannot prevail on any of its causes of action and defendants are entitled to summary

27 judgment on all causes of action.

28

8
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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page15 of 22

1 C. PLAINTIFF LOCAL 10 IS UNABLE TO DEMONSTRATE STANDING TO BRING CLAIMS ON ITS OWN BEHALF
2

3

1. Local 10 Has No Standing To Bring Federal Claims

4

Under Article III of the United States Constitution, Local 10 must demonstrate a sufficient

5 personal stake in the outcome of the alleged controversy to bring itself within the jurisdiction of the

6 federal courts. Baker v. Carr (1962) 369 U.S. 186, 204. Local 10 must establish that Local 10 itself

7 has suffered “some threatened or actual injury resulting from the putatively illegal action . . . .”

8 Linda R.S. v. Richard D. (1973) 410 U.S. 614, 617. In additions to this constitutional limitation on

9 standing, traditional "prudential" considerations regarding standing -- that a litigant must assert an

10 injury peculiar to himself or to a distinct group of which he is a part – must be considered here.

11 Warth v. Seldin (1975) 422 U.S. 490, 500-501.

12

A union may demonstrate standing to bring a claim under 42 U.S.C. section 1983 when its

13 members are subjected to unlawful police action because the union is engaging in union related

14 activities, Allee v. Medrano (1974) 416 U.S. 802, 819, fn. 13, because union membership is protected

15 by the right of association under the First and Fourteenth Amendments. McLaughlin v. Tilendis (7th

16 Cir. 1968) 398 F.2d 287. But a union’s First Amendment rights relate to union activities, collective

17 bargaining and the right to organize, and the right to associate to accomplish such activities. National

18 Treasury Employees Union v. King (1992) 798 F.Supp. 780; Smith v. Arkansas State Highway

19 Employees (1979) 441 U.S. 463. If union activities play no role in the putatively illegal action of

20 defendants, there can be no injury to the union. This is the situation before the Court.

21

The putatively illegal action alleged by Local 10 includes unlawfully broad investigation into

22 Local 10 activities, unlawful targeting of longshoremen with less lethal munitions and unlawful

23 targeting of plaintiff Jack Heyman for arrest because of his affiliation with Local 10. As

24 demonstrated by defendants’ presentation of facts in support of this motion: 1) there is no evidence of

25 an investigation into Local 10 activities by defendants, much less one that was unlawful; 2) there is

26 no evidence that longshoremen who were struck by less lethal munitions at the East SSA gate were,

27 or could be, recognized by OPD officers as longshoremen prior to their being struck, and 3) there is

28 no evidence that plaintiff Heyman’s affiliation with Local 10 played any role in his arrest.

9
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1

Defendants argue that because no evidence supports Local 10’s allegations of constitutional

2 injury based on defendants’ animus toward Local 10 and its members, Local 10 cannot demonstrate

3 standing to bring a claim under section 1983, and defendants are entitled to judgment against Local

4 10 on the first four causes of action in the TAC which Local 10 asserts on its own behalf.

5

2. Local 10 Has No Standing To Bring Claims Under the California Civil Code

6

A similar standing objection is made to Local 10’s claims under California Civil Code

7 sections 51.7 and 52.1 in the TAC’s tenth and eleventh causes of action. California courts have

8 limited standing under the Civil Code’s ‘personal rights’ statutes to persons actually aggrieved by the

9 alleged injury. Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221

10 Cal.App.3d 1377, 1386. An organization may have standing under Civil Code sections 51 and 52 et

11 seq., but only where the organization has itself suffered damage. Rotary Club of Duarte v. Board of

12 Directors (1986) 178 Cal.App.3d 1035. Here, Local 10 cannot demonstrate that it has suffered any

13 damage because there is no evidence that defendants’ putatively illegal action was in any way

14 directed at, or based on animus toward Local 10.

15

3. Local 10 Has No Standing To Bring State Tort Claims

16

Defendants contend that Local 10 has no standing to assert claims for intentional infliction of

17 emotional distress, assault and battery, and false arrest and imprisonment, because these torts are

18 intended to apply to natural persons, and not organizations of persons.

19

One who deliberately or recklessly inflicts severe emotional distress or mental suffering on

20 another by means of outrageous conduct will be liable in tort for intentional infliction of emotional

21 distress. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209. It is obvious that the tort of

22 intentional infliction of emotional distress was intended to apply only to a natural person since a non-

23 conscious entity such as an organization, an association or a corporation cannot experience emotional

24 distress or mental suffering.

25

Battery is the unconsented invasion of a person’s interest in freedom from intentional,

26 unlawful, and harmful or offensive contact with their “person.” Barbara A. v. John G. (1983) 145

27 Cal.App.3d 369, 375. Assault is the “demonstration of an unlawful intent by one person to inflict

28 immediate injury on the person of another then present.” Loury v. Standard Oil Co. (1944) 63

10
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1 Cal.App.2d 1, 6-7 (italics added). In this context, “person means the body of a human being.

2 Merriam-Webster's Dictionary of Law (1996). A natural person is “a human being as distinguished

3 from a person (as a corporation) created by operation of law” (Merriam-Webster's Dictionary of Law

4 (1996)) and, therefore, has a human body, whereas an entity such as an organization, an association

5 or a corporation does not.

6

False imprisonment is the nonconsensual, intentional confinement of a person. City of

7 Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810. The essential element of false imprisonment

8 is restraint of the “person.” Onick v. Long (1957) 154 Cal.App.2d 381, 386. Again, this tort by

9 definition protects a natural person from unlawful confinement. False arrest is a variant of false

10 imprisonment, it is just one way of committing false imprisonment pursuant to an improper arrest.

11 Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1422.

12

Because these torts by definition protect the interests of a human person, Local 10 does not

13 have standing to assert these claims on its own behalf. Defendants are therefore entitled to summary

14 judgment against Local 10, suing on its own behalf, on these causes of action.

15 D. LOCAL 10 DOES NOT HAVE REPRESENTATIVE STANDING TO BRING THE CLAIMS ALLEGED IN THE THIRD AMENDED COMPLAINT
16

17

1. Local 10 Does Not Have Representative Standing To Bring § 1983 Claims

18

Apart from Article III’s minimum standing requirements that a plaintiff present a ‘case in

19 controversy’ to trigger federal court jurisdiction, the Supreme Court has recognized prudential

20 standing requirements, which include the general rule that a plaintiff must assert her own rights and

21 interests, and cannot rest her claim to relief on the legal rights or interests of third parties. Warth v.

22 Seldin, supra at 499. The courts have recognized exceptions to this general rule, and have permitted

23 associations to assert the rights of its members, but only when the putatively illegal actions adversely

24 affect the association’s members’ associational ties. NAACP v. Alabama (1958) 357 U.S. 449, 458-

25 460.

26

The facts in this case fail to show any relationship between the alleged wrongful acts of

27 defendants and the fact of any plaintiffs’ membership in Local 10. Local 10 cannot meet the

28 requirement of representational standing that “there be a causal connection between the injury and the

11
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1 conduct complained of – the injury has to be ‘fairly trace[able] to the challenged action of the

2 defendant. . . .’” Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560. Here there is no injury to

3 Local 10 traceable to defendants’ actions because there is no proof that defendants’ actions are in any

4 way connected to Local 10 membership. Defendants are therefore entitled to summary judgment

5 regarding Local 10’s first through fourth causes of action brought on behalf of its members.

6

2. Local 10 Does Not Have Representational Standing To Bring Civil Code Claim

7

As noted above at III C.2., California Civil Code §§ 51.7 and 52.1 create rights of action in

8 the person against whom the alleged violence and intimidation has been committed. Local 10 does

9 not have standing to bring a Civil Code section 51.7 action on behalf of its members. Rose v. City of

10 Los Angeles (1993) 814. F. Supp 878, 882-883. The court in Rose, id., notes the language of CC §

11 52.1 implies that the statute assigns rights personal to the plaintiff, and observes there is no precedent

12 which allows or precludes representative standing under this section. Defendants argue that Local 10

13 cannot point to authority which supports Local 10’s standing to assert a Civil Code section 51.7

14 violation on behalf of its members. Local 10’s lack of standing to bring claims on behalf of its

15 members under these Civil Code sections entitles defendants to summary judgment on these causes

16 of action.

17

3. Local 10 Does Not Have Standing to Bring Tort Claims on Behalf of Its Members

18

As noted above at III C. 3, tort claims based on intentional infliction of emotional distress,

19 assault and battery, and false arrest and imprisonment are personal torts which require a physical

20 body. Defendants are not aware of any precedent which permits an association to bring intentional

21 personal tort claims vicariously on behalf of its members.

22 E. LOCAL 10 HAS FAILED TO COMPLY WITH THE CALIFORNIA GOVERNMENT TORT

CLAIMS ACT

23

Local 10 has asserted state tort claims against defendants at their twelfth (assault and

24 battery), thirteenth (intentional infliction of emotional distress), fourteenth (negligence) and fifteenth

25 (false arrest and imprisonment) causes of action. (TAC, ¶¶ 129 through 138). But in order to prevail

26 on these claims, Local 10 must have complied with the California Tort Claims Act (CTCA). The

27 same requirement of compliance with the CTCA applies to Local 10’s Tenth and Eleventh causes of

28 action for violation of California Civil Code sections 51.7 and 52.1. Gatto v. County of Sonoma

12
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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page19 of 22

1 (2002) 98 Cal. App. 4th 744, 764 .

2

Government Code section 945.4 provides in relevant part that:

3

[N]o suit for money or damages may be brought against a public entity on a cause of

action for which a claim is required to be presented in accordance with . . . this

4

division until a written claim therefore has been presented to the public entity and has

5

been acted upon by the board, or has been deemed to have been rejected by the board.

6 “Government Code section 945.4 requires, as a prerequisite to maintenance of an action
7 against a public entity for damages arising out of an alleged tort, the timely filing of a claim, and its
8 rejection.” Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431.
9 [Emphasis added]. “Compliance with the claims statute is mandatory and failure to file a claim is
10 fatal to the cause of action.” (Pacific Tel. & Tel. Co. v. County of Riverside (1980) 106 Cal.App.3d
11 183, 188.) The Ninth Circuit has determined that compliance with the procedural requirements of the
12 CTCA is a “substantive element of the cause of action.” Hernandez v. McClanahan (9th Cir. 1998)
13 996 F. Supp. 975 ; United States v. State of California (9th Cir. 1980) 655 F.2d 914, 918. It is proper
14
for federal courts to determine if a plaintiff bringing tort claims against a public entity has complied 15
with the CTCA. Id. at 918-919. These same requirements are generally applicable to claims against 16

a public employee. See, Government Code section 950.2 et seq. 17

Local 10 has failed to comply with the CTCA, in that it never filed a claim with the City of 18
Oakland.33 Because compliance with the CTCA is a prerequisite to viable tort claims against 19

20 defendants, including claims under California Civil Code section 52.1, defendants are entitled to

21 judgment on Local 10’s state tort claims as alleged in its tenth through fifteenth causes of action.

22

F. LOCAL 10’S STATE CONSTITUTIONAL CLAIMS SHOULD BE DISMISSED AS THEY ARE NOT SUPPORTED BY EVIDENCE AND THEY DO NOT SUPPORT A CAUSE OF

23

ACTION FOR DAMAGES

24 Local 10 joins in the TAC’s fifth through ninth causes of action which assert claims under the
25 26 California Constitution, specifically, violation of Local 10’s right to freedom of speech and 27 association, and to petition the government for redress of grievances under Article I, sections 2 and 3;

28

13
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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page20 of 22

1 freedom from unreasonable seizure and/or arbitrary force and/or arrest and/or imprisonment without

2 reasonable cause under Article 1, section 13; to not be deprived of liberty without due process under

3 Article 1 section 7(A); to equal protection under Article 1, section 7(A); and to informational privacy

4 under Article 1, section 1. To the extent that the TAC’s prayer seeks declaratory relief under these

5 causes of action, the declaratory relief cause of action has been settled by stipulation of all parties and 6 order of this Court.34

7 1. No Evidence Support’s Local 10’s Allegation of State Constitutional Violations

8

Initially, defendants argue that, as outlined above, there is no evidence to support Local 10’s

9 allegation that it has been deprived of any constitutional rights. There is a complete lack of proof to

10 demonstrate any constitutional injury to Local 10 or its members because of their union membership.

11 Therefore, Local 10 cannot prevail on its claims for violation of rights under the California

12 Constitution, on either its own behalf, or on behalf of its members, and defendants are entitled to

13 summary judgment on these causes of action.

14

2. State Constitutional Claims Do Not Provide For Recovery of Money Damages

15

The court in Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465 observes that very few

16 California appellate courts have held there is a right to damages for violations of state constitutional

17 provisions. State court decisions instruct that there is no right to sue for monetary damages under the

18 due process provision of the California Constitution. Bradley v. Medical Board (1997) 56 Cal. App. 19 4th 445; Katzberg v. Regents (2002) 29 Cal.4th 300. Nor can plaintiffs recover money damages under 20 the state equal protection clause. Javor v. Taggart (2002) 98 Cal.App.4th, 795, 807.

21

Defendants find no state court case addressing the question of whether a violation of the state

22 constitution’s free speech, search and seizure, and privacy provisions give rise to an action for money

23 damages, but the reasoning of Bonner and its progeny apply. The language of Article 1, sections 1, 7

24 and 13 do not suggest any specific method of enforcement, thus there is no indication that these

25 sections are ‘self executing.’ In addition, it is clear that plaintiff has alternative judicial remedies to

26 their state search and seizure claims under the federal tort claims act and state law causes of false

27

28 33 Paredes Dec. ¶ 2

14
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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page21 of 22

1 imprisonment and emotional distress.

2

Neither Article 1, section 1 on which plaintiffs base their Fifth Cause of Action for

3 Informational Privacy nor Article 1, section 13 on which plaintiffs base their Sixth Cause of Action

4 for Unlawful Search and Seizure, set forth any indication that a violation of the section supports a

5 claim for damages. Defendants have found no case that indicates damages are recoverable for a

6 violation of these state Constitution provisions. Although defendants do not undertake the exhaustive

7 analysis suggested by Katzberg, defendants point to the lack of authority supporting a damage claim,

8 and the existence of adequate alternative remedies as a basis for this court to dismiss these causes of

9 action in as much as they seek damages.

10

IV. CONCLUSION

11

Local 10 is unable to point to any evidence that defendants acted with animus, hostility or

12 discriminatory motive toward persons at the Port protest because of membership in Local 10.

13 Defendants stated purpose at the Port was to protect the interests of Port workers, and evidence shows

14 both that OPD did assist workers into the Port when gates were cleared of demonstrators, and that

15 OPD had no intention and no reason to target longshoremen for aggressive treatment. The overall

16 circumstances clearly show that police were attempting to clear demonstrators from the Port so that

17 Port business would not be interrupted. Longshoremen plaintiffs at the East SSA gate were not

18 identifiable as such, and Mr. Heyman was arrested because of his attempt to drive through a police

19 skirmish line, not his union affiliation. There is no evidence of animus toward Local 10 during

20 events at the Port. Nor is there any evidence that defendants acted unlawfully in gathering

21 intelligence about Local 10. For all of the reasons set forth herein, defendants contend that Local 10

22 has no claim which requires a trial by jury, and that defendants are entitled to summary judgment

23 against Local 10 on all causes of action in the Third Amended Complaint.

24 Dated: October 24, 2005 25 26 27

BERTRAND, FOX & ELLIOT /s/ By:___________________________________________ Gregory M. Fox Arlene C. Helfrich
Attorneys for Defendants

28 34 See Fox Dec. ¶ 12.

15
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Case3:03-cv-02962-TEH Document197 Filed10/24/05 Page22 of 22

1

PROOF OF SERVICE

2

I, Lark Berry, declare that:

3

1. I am employed in the County of San Francisco, California; I am over the age of

4

eighteen years and not a party to the within cause; and my business address is 2749 Hyde

Street, San Francisco, California 94109.

5 2. I am readily familiar with the practice of Bertrand, Fox & Elliot for the processing of
6 correspondence, said practice being that in the ordinary course of business, correspondence is

deposited in the United States Postal Service the same day as it is placed for processing. 7

8

3. On October 24, 2005, I served the following document(s):

9

DEFENDANT CITY OF OAKLAND’S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT AGAINST PLAINTIFF LOCAL 10, INTERNATIONAL

10

LONGSHORE AND WAREHOUSE UNION

11 in said cause, on the following interested parties:

12 Rob Remar, Esq.

13 Leonard Carder, LLP

1188 Franklin Street, #201 14 San Francisco, CA 94109

15

Tel: 415.447.0403 Fax: 415.771.7010

16 Attorney for ILWU Local 10

17 4.
18

Said service was performed in the following manner:

19 X BY WESTERN MESSENGER SERVICE (: I placed each such document in a sealed

20

envelope addressed as noted above, for pick up at our offices for messenger service to be hand-delivered today to the above address, at San Francisco, California, following the above

21

stated business practice, on this date.

22 I declare under penalty of perjury under the laws of the State of California that the foregoing
23 is true and correct.

24

Executed October 24, 2005, at San Francisco, California.

25

/s/

26 Lark Berry for Bertrand, Fox & Elliot
27

28

 
 Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page1 of 44

1 JAMES B. CHANIN (SBN# 76043)
2 JULIE M. HOUK (SBN# 114968) Law Offices of James B. Chanin
3 3050 Shattuck Avenue 4 Berkeley, California 94705
(510) 848-4752; FAX (510) 848-5819
5 JOHN L. BURRIS, SBN 69888
6 7677 Oakport Street, Suite 1120 Oakland, CA 94621
7 (510) 839-5200; FAX (510) 839-3882
8 RACHEL LEDERMAN, SBN 130192
9 NATIONAL LAWYERS GUILD and Law Offices of Rachel Lederman
10 and Alexsis C. Beach 11 558 Capp Street
San Francisco, CA 94110 12 (415) 282-9300; FAX (415) 285-5066

ALAN L. SCHLOSSER, SBN 49957 MARK SCHLOSBERG, SBN 209144 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 1663 Mission Street, Suite 460 San Francisco, CA 94103 (415) 621-2493; FAX (415) 255-8437

13

(Additional counsel on next page) 14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

18 LOCAL 10, INTERNATIONAL LONGSHORE Case No. C-03-2962 TEH (JL)

19 AND WAREHOUSE UNION, et al.,

LOCAL 10 PLAINTIFFS’ NOTICE OF AND

20

Plaintiffs, MOTION FOR AN AWARD OF

vs. 21

ATTORNEYS’ FEES AND COSTS; MEMORANDUM OF POINTS AND

22 CITY OF OAKLAND, et al.,

AUTHORITIES THEREON

23

Defendants. Date:

July 11, 2005

________________________________________ Time:

10:00 a.m.

24 AND RELATED CASE

Courtroom: No. 12, 19th Floor

Judge:

Hon. Thelton E. Henderson

25

26

27

28

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Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page2 of 44

1 BOBBIE STEIN (SBN# 113239) 2 503 Dolores Street, #201
San Francisco, CA 94110-1564 3 (415) 255-0301; FAX (510) 601-5780

4 OSHA NEUMANN (SBN#127215) 1840 Woolsey Street
5 Berkeley, CA 94703 6 (510) 644-2429; FAX (510) 540-4821

7 Attorneys for Plaintiffs

8

9

ROBERT REMAR (SBN# 100124) LEONARD CARDER LLP

10 1188 Franklin Street, #201 San Francisco, CA 94109

11 (415) 447-0403; FAX (415) 771-7010

12 Attorney for Local 10, ILWU Only 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 LOCAL 10 PLAINT. MEMO RE MOT.
FOR ATTY FEES AND COSTS C-03-2962 TEH (JL)

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Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page3 of 44

TABLE OF CONTENTS 1 2 I. NOTICE OF MOTION AND MOTION

3 II. INTRODUCTION

1

4 III. ISSUES TO BE DECIDED

1

5 IV. STATEMENT OF FACTS AND PROCEEDINGS

2

6

A. Underlying Facts

2

7

B. Public Outrage

4

C. Association of Counsel, Filing

8

Complaint and Injunctive Relief Settlement

5

9

V. SUMMARY OF THE INJUNCTIVE RELIEF

6

10 NEGOTIATIONS AND SETTLEMENT

11

A. Plaintiffs’ Attorneys’ Roles

6

B. Negotiations Continued for Over One Year

7

12

13 VI. SUMMARY OF BACKGROUND, EXPERIENCE, RATES

AND LODESTAR SOUGHT

11

14

A. Experience of Plaintiffs Attorneys

13

15

16

1. Alan Schlosser and ACLU-NC staff 2. Rachel Lederman

13 14

17

3. John Burris

15

4. James B. Chanin

16

18

5. Julie Houk

17

6. Bobbie Stein

18

19

7. Osha Neumann

19

20

8. Robert Remar

20

21 VII. ARGUMENT

20

22

A. Plaintiffs are Entitled to Their Reasonable Attorneys Fees

20

23

1. Local 10 plaintiffs are entitled to fees and costs under 42 U.S.C. §1988 21

24

2. Local 10 plaintiffs are entitled to fees and costs under

California Code of Civil Procedure '1021.5

22

25

3. Local 10 plaintiffs are entitled to an award of attorneys fees

and costs under California Civil Code Sections 52 and 52.1

23

26

27

B. Calculation of The Lodestar

24

28 LOCAL 10 PLAINT. MEMO RE MOT.
FOR ATTY FEES AND COSTS C-03-2962 TEH (JL)

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Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page4 of 44

1

1. Plaintiffs hourly rates are reasonable

25

2

2. The number of hours claimed is reasonable

26

3

C. The Court Has the Discretion to Enhance the

Lodestar under California Law

29

4

1. Local 10 Plaintiffs’ Request A 1.5 Lodestar Enhancement

29

5

2. Risk assumed by counsel

30

6

3. The importance of the litigation and results obtained

served the greater public interest

31

7

4. Delay in the receipt of fees and undesirability of the case

32

8

D. Plaintiffs Are Entitled To Recover Attorneys' Fees For Services

9

Rendered In Connection With Efforts To Obtain An Award Of Fees And Expenses

32

10 1. Plaintiffs request a 1.1 lodestar enhancement for work on the fee motion 33

11

E. Plaintiffs Are Entitled To Reimbursement Of Out Of Pocket Costs

33

12

13 VIII. CONCLUSION

34

14 APPENDIX A

35

15

16

17

18

19

20

21

22

23

24

25

26

27

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1 2 CASES

TABLE OF AUTHORITIES

3 Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997), cert denied, 525 U.S. 827 (1998)
4
Barlow-Gresham Union High School Dist. v. Mitchell 5 940 F.2d 1280 (9th Cir. 1991)
6 Barrios v. California Interscholastic Fed'n, 277 F.3d 1128 (9th Cir. 2002)
7 cert. denied, 154 L. Ed. 2d 28, 123 S. Ct. 98 (2002)

8 Beasley v. Wells Fargo Bank (1991) 235 Cal. App. 3d 1407
9 Blanchard v. Bergeron, 489 U.S. 87 (1989)
10 Blum v. Stenson, 465 U.S. 886 (1984)
11 Bodely v. Thompson 2005 U.S. Lexis 5113 (N.D.Cal 2005)
12
13 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. 532 U.S. 598 (2001)
14 Chalmers v. City of Los Angeles
15 796 F.2d 1205 (9th Cir. 1986), amended, 808 F.2d 1373 (9th Cir. 1987)
16
17 City of Oakland v. Oakland Raiders (Raiders V) (1988) 203 Cal. App. 3d 78
18 City of Riverside v. Rivera, 477 U.S. 561
19 91 L. Ed. 2d 466, 106 S. Ct. 2686 (1986)
20 Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986)
21 Coalition for Los Angeles County Planning (1977) 76 Cal. App. 3d 241
22 Crommie v. Public Utilities Comm., 840 F. Supp. 719 (N.D. Cal. 1994),
23 aff’d in part and remanded sub nom, 24 Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470

25 Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991)
cert. denied, 502 U.S. 899 (1991) 26

27

28 LOCAL 10 PLAINT. MEMO RE MOT.
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25,26 32 22 23,29,33 26 25 12,27 21-22
21,24-26 30,32 21,25 32 30,31
29,31 25

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1
2 Downey Cares v. Downey Community Development Com. (1987) 196 Cal. App. 3d 983
3 Gates v. Deukmejian, 987 F.2d 1392 (9th Cir.1993)
4 Graham v. Daimler Chrysler Corporation (2005) 34 Cal. 4th 553
5
6 Guinn v. Dotson (1994) 23 Cal. App. 4th 262

7 Harris v. McCarthy, 790 F.2d 753 (9th Cir. 1986)

8 Hensley v. Eckerhart, 461 U.S. 424 9 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)
10 In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir. 1985)

11 Johnson v. University College of University of Alabama in Birmingham, 706 F2d 1205, 1208 (11th Cir. 1983)
12
13 Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987)

14 Kay v. Ehrler, 499 U.S. 432 111 S.Ct. 1435, 113 L.Ed. 486 (1991)
15
16 Keith v. Volpe, 833 F.2d 850, 859 (9th Cir. 1987)

17 Kern River Public Access Comm. v. City of Bakersfield (1985) 170 Cal. App. 3d 1205
18
Ketchum v. Moses (2001) 24 Cal. 4th 1122 19

20

Kinney v. International Brotherhood of Electrical Workers 939 F.2d 690 (9th Cir. 1991)

21 Missouri v. Jenkins, 491 U.S. 274 (1989)
22
Mitchell v. Bankfirst, 2003 U.S. Dist. LEXIS 3091 (N.D. Cal. 2003) 23

24 Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400 88 S.Ct. 964, 19 L.Ed. 2d 1263 (1968
25

26

27

28 LOCAL 10 PLAINT. MEMO RE MOT.
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30,33 12 22,23,29,33 26 33
21,26 33
27 24,25,33
21 24
29 29-30
33 25,33 29
21

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1
2 Oberfelder v. City of Petaluma 2002 U.S. Dist. LEXIS 8635(N.D. Cal. 2002)
3 Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311
4 Schwartz v. Health & Human Serv., 73 F.3d 895 (9th Cir. 1995)
5
6 Serrano v. Priest (Serrano III) (1977) 20 Cal. 3d 25

29-30 24 24 24,29

7 Serrano v. Unruh (1982) 32 Cal. 3d 621 (Serrano IV)

23,25,26

8 Stokus v. Marsh (1990) 217 Cal. App. 3d 647

26

9 Tipton-Whittingham v. City of Los Angeles, 316 F.3d 1058 (9th Cir. 2003) 22

10

Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041 (9th Cir. 2000)

25

11

Wallace v. Consumers Coop. of Berkeley (1985) 170 Cal. App. 3d 836

26

12

13 Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)

22

14 Woodland Hills Residents Association v. City Council (1979) 23 Cal. 3d 917 23

15 FEDERAL STATUTES
16 42 U.S.C. ' 1983 17
42 U.S.C. §1988 18
CALIFORNIA STATUTES 19 20 California Civil Code §52
21 California Civil Code §52.1

1,21 1,20,21,24,32,33
1,21,23,24 1,21,23,24

22 California Code of Civil Procedure '1021.5 23

2, 21-23,33

24

25

26

27

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1

I. NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE THAT on July 11, 2005, at 10:00 a.m., or as soon thereafter as

3 the matter may be heard in Courtroom No. 12, located on the 19th Floor of the United States

4 District Court, located at 450 Golden Gate Avenue, San Francisco, California, Plaintiffs Local 10,

5 International Longshore And Warehouse Union (hereinafter, Local 10, ILWU), Billy Kepoo, Allen

6 Chapman, Christopher Clay, Silas Dunn, Willie Hamlin, Ernest Evans, David Loville, Lawrence

7 Massey, Byron Moore, Sr., John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming,

8 Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek,

9 Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Tim Ridolfi, Alicia

10 Grogan-Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Patricia “Max”

11 Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Nicholas Frabasilio, Cyprus Gonzalez,

12 Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Lesley Krueger, Marko

13 Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura

14 “Ariel” Glenn, Sarah Kennedy, Cliff Close, Kate Sassoon, and Jack Heyman (hereinafter referred to

15 collectively as the “Local 10 plaintiffs”) will move this Court for an award of reasonable attorneys’

16 fees and costs for the services performed by their counsel in achieving the final settlement of

17 plaintiffs’ declaratory and injunctive relief claims, which included an agreement by the City of

18 Oakland to substantially reform its crowd control policies.

19

Local 10 plaintiffs’ motion will be based on the written settlement agreement which was

20 approved by the Court and filed on December 28, 2004 (Ex. 1, Chanin decl., Ex. A), the

21 Memorandum of Points and Authorities set forth below, the supporting declarations and evidence

22 filed contemporaneously herewith, the Court file herein, 42 U.S.C. §§1983 and 1988, California

23 Civil Code §§52 and 52.1, California Code of Civil Procedure §1021.5 and all other

24

25

26

27

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1 argument, legal authorities and/or evidence as may be presented prior to and/or at the time of the 2 hearing.1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 To the extent that the motion for attorneys’ fees and costs filed in the related Coles v. City
of Oakland, et al. C03-2961 TEH (JL) action includes additional argument, legal authorities 24 and/or evidence which supports the Local 10 plaintiffs’ recovery of attorneys’ fees and costs, it
is hereby incorporated herein by reference and shall serve as a further basis for the Local 10 25 plaintiffs’ motion. incorporated herein by reference. 26 27 28 LOCAL 10 PLAINT. MEMO RE MOT.
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II. INTRODUCTION 1

2

The Local 10 plaintiffs are fifty-two individuals who were injured during an anti-war

3 demonstration at the Port of Oakland on April 7, 2003 when the Oakland Police Department

4 (OPD) used excessive force against them Local 10 of the ILWU is also a named plaintiff in
5 the action. (Ex. 1, Chanin decl., ¶5) 6
Nine plaintiffs are Local 10, ILWU dockworkers, represented in this action by the Law 7
Offices of John L. Burris. Local 10 is represented by Robert Remar of the law firm of Leonard 8 9 Carder LLP. (Ex. 1, Chanin decl., ¶6). The remaining forty-one plaintiffs include
10 demonstrators, legal observers, journalists, a Local 10, ILWU business agent and others

11 present at the demonstration, are represented by the James B. Chanin, Julie M. Houk, Rachel

12 Lederman and the National Lawyer’s Guild, Bobbie Stein and Osha Neuman. Alan Schlosser

13 and other staff counsel of the American Civil Liberties Union of Northern California (ACLU-
14 NC) have associated as Local 10 plaintiffs’ counsel primarily for the purpose of obtaining
15
injunctive and declaratory relief. Id. 16

17

Pursuant to the terms of the December 28, 2004, Stipulation and Order Approving

18 Partial Settlement of Plaintiffs’ Claims for Injunctive Relief, Local 10 plaintiffs move the Court

19 for an award of reasonable attorneys’ fees and costs for counsel’s work performed in

20 connection with the partial settlement of the plaintiffs’ injunctive relief claims. This settlement
21 included an agreement by the City of Oakland to substantially reform its crowd control
22
policies. (Ex. 1, Chanin decl., ¶7, Ex. A). 23

24

III. ISSUES TO BE DECIDED

25

(1) Whether the Local 10 plaintiffs are entitled to an award of attorneys' fees and costs

26 under 42 U.S.C. '§ 1983 and 1988, California Civil Code '§52 and 52.1 and/or under California
27 1
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Code of Civil Procedure '1021.5; 1

2

(2) The amount of reasonable attorneys' fees and costs which the Local 10 plaintiffs are

3 entitled to recover for work which led to the successful resolution of the plaintiffs’ injunctive and

4 declaratory relief claims, including the calculation of the lodestar;

5

(3) The amount of reasonable attorneys' fees and costs for work performed in connection

6 with the injunctive relief;
7
(4) Whether the fees for work on the merits and on the attorneys' fee motion should be 8

9 enhanced, and

10

(5) The amount of costs to be awarded to the Local 10 plaintiffs.

11

IV. STATEMENT OF FACTS AND PROCEEDINGS

12

A. Underlying Facts

13 Following the United States’ invasion of Iraq, a peaceful anti-war demonstration was
14 announced for the Port of Oakland. Demonstrators planned to picket the gates of two
15
16 shipping Companies that had supported the United States’ war effort. (Ex. 1, Chanin decl.,

17 ¶8). Although the OPD could have chosen to arrest people who blocked traffic and refused to

18 move, they instead made plans prior to the demonstration to disperse the crowd by running

19 into people with motorcycles and firing “less lethal” munitions, including wooden dowels, shot
20 filled “bean bags,” rubber pellets and “sting grenades.” Id. 21
The departmental policy then in existence placed virtually no restraints on the use of 22
such weapons in crowd control situations and provided no direction to officers about when to 23
24 arrest non-compliant demonstrators rather than resorting to the use of munitions and chemical
25 agents. (Ex. 1, Chanin decl., ¶9).

26

On April 7, 2003, at approximately 7:30 a.m., although traffic was flowing and the

27 2
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demonstrators had already cleared away from the gates, the OPD officers used barrages of 1 2 weapons fire and motorcycle bumps to push demonstrators, legal observers, journalists and 3 others more than a mile down a series of roads, herding them, by an indirect route, to the

4 BART station. The roads that the demonstrators were forced down had no means of egress
5 and the demonstrators were essentially trapped. (Ex. 1, Chanin decl., ¶10). 6
The fifty-two (52) Local 10 plaintiffs were injured by abusive police tactics as they 7
attempted to comply with police orders. Some people were shot while others were run into 8 9 with motorcycles or clubbed with batons. (Ex.1, Chanin decl., ¶11). None of the Local 10
10 plaintiffs were convicted of having committed any crimes, much less crimes that would have

11 justified use of such extreme force. Id. Forty (40) of the Local 10 plaintiffs are anti-war

12 demonstrators, peace activists, legal observers, journalists and others who had come to the

13 Port of Oakland to participate or observe the demonstration. Id. Some of these plaintiffs have
14 suffered life altering, permanent and disfiguring physical injuries from the OPD’s use of so-
15 called, “less lethal” force.2
16

17

Nine (9) of the Local 10 plaintiffs are ILWU dockworkers who were shot or otherwise

18 injured by police excessive force while exercising their rights and duties under their union

19 contract to “stand by” and await word from their union officials as to whether they were
20 authorized to cross the picket lines and report to work. One Local 10 plaintiff was dragged 21
from his vehicle, subjected to excessive force and arrested without probable cause while acting 22
in his capacity as a Local 10 business agent. (Ex.1, Chanin dec.¶13). 23

24

25
26 2 By way of example, photographs of the injuries sustained by Local 10 plaintiff, Willow Rosenthal illustrate how destructive these weapons can be and the disfiguring injuries they can
27 inflict. (Ex. 1, Chanin decl., ¶12. Ex. B). 3
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B. Public Outrage 1

2

The shocking and violent OPD response to the peaceful anti-war demonstration at the

3 Port of Oakland was the subject of national and international press reports and was denounced

4 by groups including the United Nations’ Human Rights Commission. (Ex. 1, Chanin decl., ¶14,

5 Ex. C, April 2, 2004 re: report issued by United Nations Commission on Human Rights).
6 Despite public outrage over the OPD’s conduct, Deputy Chief Haw congratulated command
7 staff, stating that they had done a “fantastic job” and referred callously to the incident as the
8 9 “Party at the Port.” (Ex. 1, Chanin decl., ¶15, Ex. D)3.

10

The reckless and malicious nature of the OPD’s use of force against peaceful

11 demonstrators was also reflected by admissions made by Sgt. Chris Delrosario to a civilian

12 following the incident, saying that he was very tired because he “had to shoot a lot of people
13 today,” referring to the Port of Oakland demonstration, and that he “shot this one bitch in the
14 forehead and her titties popped out.” (Ex. 2, Declaration of Jovan Johnson).
15 On the day of the incident and in days and weeks that followed, people who had been
16
17 injured and/or arrested, as well as witnesses, contacted the National Lawyer’s Guild, the

18 American Civil Liberties Union of Northern California (hereinafter, ACLU-NC) and the

19 individual Local 10 plaintiffs’ counsel seeking representation. (Ex. 1, Chanin decl ¶16, Exhibit
20 3, Schlosser dec., ¶17, Exhibit 8, Lederman decl., ¶¶10-13, Exhibit 5, Burris decl ¶16, Exhibit 21
7, Neumann decl, ¶¶10-11; Exhibit 6, Stein decl, ¶¶11-14). 22

23

24 3 This is in stark contrast to the City of Boston which not only promptly settled the monetary

25

damage claims of the family of an Emerson College student who was shot in the eye and killed by “less lethal” munitions used for crowd control by Boston Police in the aftermath of the Red

26 Sox World Series victory, but which appointed an independent investigator who recently concluded that the shooting was caused by a lack of training, inadequate supervision and poor

27 planning among other things. Ex. 1, Chanin decl., Ex. H.

4

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C. Association of Counsel, Filing Complaint and Injunctive Relief Settlement 1

2

Within a short time after the incident, counsel for Local 10 plaintiffs began meeting

3 together and agreed to associate to represent plaintiffs in this action. (Ex. 1, Chanin decl.,

4 ¶16). Local 10 counsel believed that it would be more efficient and cost-effective to pool their
5 collective experiences and resources in bringing a consolidated action, even though each 6 plaintiff would have had the right to bring their own separate action. Id.4 7
It soon became evident to counsel that the OPD’s rampant use of excessive force was 8 9 the product of wholly inadequate crowd control policies which allowed officers to use “less
10 lethal” munitions and other force against people who posed no serious threat to others. (Ex. 1,

11 Chanin decl. ¶16-20). As a result, Local 10 plaintiffs’ counsel focused on these policy issues

12 from the initial stages of the case and decided to include claims for injunctive and declaratory
13 relief in the Complaint. (Id.; Ex. 3, Schlosser decl. ¶18-20).
14 The original Complaint was filed on June 26, 2003. It contained claims for declaratory
15 and injunctive relief in addition to damage claims for individual plaintiffs as well as class action
16
17 allegations. (Ex. 1, Chanin decl. ¶20). On July 18, 2004, Local 10 plaintiffs filed a First

18 Amended Complaint to include additional victims of police violence as plaintiffs in the action.

19 Id. On August 11, 2004, the case was transferred to this Court after it was determined to be
20 related to the Coles v. City of Oakland action, which had been filed by Haddad and Sherwin 21
on the same day as Local 10 plaintiffs had filed their original Complaint. Id. 22
On October 1, 2003, an initial meeting was held between counsel for plaintiffs and 23
24 defendants to discuss a number of issues pertinent to the litigation, including issues specifically

25
26 4 The Local 10 legal team has also worked cooperatively with the Coles counsel throughout the litigation, including with respect to discovery matters and during the negotiations of the
27 injunctive and declaratory relief settlement. 5
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related to plaintiffs’ injunctive relief claims. (Ex. 3, Schlosser decl. ¶¶21-24; Ex. 8, Lederman 1 2 decl. ¶¶6,19). During this meeting the parties agreed to commence negotiations on the crowd 3 control policies and on plaintiffs’ injunctive relief claims. It was also agreed that counsel for

4 the plaintiffs would be responsible for writing an initial draft of a revised crowd control policy.
5 Id. 6
Intensive negotiations regarding settlement of the injunctive relief and revisions to the 7
OPD’s crowd control policy were ongoing between October 1, 2003 and December 20, 2004. 8 9 (Ex. 3, Schlosser decl., ¶¶21-81; Ex. 8, Lederman decl. ¶¶19-46). This Court’s Order
10 approving the settlement of the injunctive relief claims was filed on December 28, 2004. (Ex.

11 1, Chanin decl., Ex. A). Since that time, the parties have continued to work together on

12 implementation of the policy and the creation of training bulletins for OPD officers. (Ex. 3,

13 Schlosser decl. ¶¶82-83l Ex. 8, Lederman decl. ¶47).

14

V. SUMMARY OF THE INJUNCTIVE RELIEF

15

NEGOTIATIONS AND SETTLEMENT

16

A. Plaintiffs’ Attorneys’ Roles

17 Alan Schlosser and Rachel Lederman were designated as lead counsel for purposes of
18
negotiating with the City of Oakland on the crowd control policy. (Ex. 3, Schlosser decl., ¶5; 19

20 Ex. 8, Lederman decl, ¶6). James Chanin and John Burris, by virtue of their experience in

21 numerous police misconduct actions, including negotiating the non-monetary settlement in the

22 “Riders” litigation (Delphine Allen, et al. v. City of Oakland, et al, 00-4599 TEH), were
23 charged with the tasks of attending certain critical meetings related to the crowd control
24 policies, reviewing and commenting upon the policies and proposed revisions and lending
25 assistance to the Local 10 legal team when needed. (Ex. 1, Chanin decl. ¶22; Ex. 5, Burris
26

27 6
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decl. ¶17-18). 1

2

Bobbie Stein lent her expertise throughout the negotiations process, critiquing and

3 drafting revisions of the work in progress. (Ex. 6, Stein decl.¶18-22). Ms. Stein had previous

4 experience in drafting police crowd control polices, having helped to create the San Francisco

5 Police Department’s Crowd Control Manual currently in use. Id. Mark Schlossberg, is the
6 Police Practices Director for the ACLU-NC. His involvement in the negotiations focused on
7 intelligence issues related to the OPD’s surveillance of demonstrators and ILWU members.
8
9 (Ex. 3, Schlosser decl., ¶12).

10

Osha Neuman, who served on the City of Berkeley Police Review Commission for

11 many years, and who has been involved in police misconduct litigation for a large part of his

12 legal career, also significantly contributed to the process, drafting certain parts of the policy
13 that were eventually adopted. (Ex. 7, Neuman decl. ¶4, 10-12).
14 In an effort to maximize efficiency, Local 10 counsel agreed to work closely with Coles
15 counsel, Michael Haddad, during the negotiations and policy drafting process so that counsel
16
17 in both actions would achieve a result that would be acceptable to all of their clients. (Ex. 3,

18 Schlosser decl., ¶26).

19

B. Negotiations Continued for Over One Year

20

On October 1, 2003, the City of Oakland agreed to begin negotiations with respect to

21 plaintiffs’ injunctive relief claims. To that end, Local 10 counsel began reviewing the existing
22

OPD crowd control policies as well as policies from other jurisdictions, including San 23

24 Francisco, Seattle, Los Angeles and Minneapolis. Counsel also consulted with attorneys

25 involved in crowd control cases throughout the country and retained Jeffery Schwartz, Ph.D.,

26 a police practices expert, to assist them in making revisions to the OPD policy. (Ex. 3,
27 7
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Schlosser decl. ¶¶21-27; Ex. 8, Lederman decl. ¶¶18-24). 1

2

After reviewing existing OPD policies, it became immediately apparent to Local 10

3 counsel and their consultant that there were virtually no controls on OPD’s use of so-called

4 “less lethal” munitions. Oakland police policies did not provide clear direction to officers when

5 confronted with peaceful, but non-compliant crowds, other than to resort to the use of “less
6 lethal” weapons and other force. (Ex. 1, Chanin decl., ¶21). Without substantial reforms, there
7 remained a serious risk that officers would continue to employ excessive force as a means of
8
9 crowd control in the future. Id.

10

Moreover, it was clear that despite the fact that the OPD had been involved in a

11 number of previous crowd control situations which raised red flags about its officers’ use of

12 excessive force, including the Festival of the Lake litigation filed by Local 10 counsel, John

13 Burris, which resulted in both individual and supervisory liability verdicts in favor of a number
14 of plaintiffs, the OPD remained ill-equipped to handle large scale crowd control situations
15
without resorting to the use of excessive force. (Id.; Ex. 5, Burris decl.¶18) 16

17

By December 10, 2003, plaintiffs’ counsel completed their draft of a comprehensive

18 crowd control policy. This draft was presented to defendants’ counsel on December 11th. (Ex.

19 3, Schlosser decl., ¶¶29-34; Ex. 8, Lederman decl., ¶¶21-24). Later that day, OPD Chief,

20 Richard Word, announced at a City of Oakland Civilian Review Board meeting. that the OPD
21 intended to make changes to its policies and specifically stated that the OPD would no longer
22
use “less lethal” weapons for crowd control. Id. 23

24

Thereafter, on January 28, 2004, at the City’s invitation, plaintiffs’ counsel attended a

25 meeting with Chief Richard Word, OPD command staff and counsel for the City of Oakland.

26 At that time, defendants’ counsel presented plaintiffs with a draft of a revised crowd control
27 8
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policy that had been prepared by the OPD. (Ex. 3, Schlosser decl. ¶35; Ex. 8, Lederman decl. 1 2 ¶27).

3

To some extent, the OPD’s draft tracked the structure of plaintiffs’ December 2003

4 draft policy. It failed, however, to address a number of critical issues that had been included in

5 the plaintiffs’ initial draft. (Ex. 3, Schlosser decl. ¶36). In particular, the OPD draft policy was

6 silent as to the relationship between arrests and use of force and lacked guidelines with regard
7
to when an arrest was the appropriate response rather than the use of force options. Id. 8

9

The draft also failed to incorporate the prohibition on the use specialty impact weapons

10 for crowd control (such as the “less lethal” weapons used during this incident) which had been

11 included in the plaintiffs’ initial draft and which Chief Word had previously announced would

12 be made part of the revised policy. (Ex 3, Schlosser decl. ¶37-41).
13 Although the OPD’s draft referred to many of these specialty impact weapons, it failed
14 to give any clear guidance as to when these munitions and chemical agents would be used for
15 crowd control, stating only that they would not be “indiscriminant (sic) nor used to disperse a
16
17 peaceful crowd.” To the extent that it was intended to limit the use of such weapons, this draft

18 was also in conflict with other OPD use of force policies that appeared to authorize their use in

19 crowd control situations. Id. Plaintiffs’ counsel communicated their concerns about the

20 OPD’s proposed policy to counsel for the City. Negotiations concerning the policy continued
21 throughout the Spring of 2004. In March 2004, the parties continued to negotiate changes to
22 the OPD’s crowd control policies and plaintiffs made substantial progress in obtaining their
23
24 recommended revisions. ( Id. at ¶¶39-45; Ex. 8, Lederman decl. ¶28-31).

25

Notwithstanding the significant progress that had been made in drafting the revised

26 crowd control policy, there remained a number of issues upon which the parties disagreed or
27 9
28 LOCAL 10 PLAINT. MEMO RE MOT.
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where there was a need for further negotiations. These included: 1

2

(1) using less lethal weapons against people leaving the scene of unlawful activity;

(2) the use of pepper spray against a non-compliant crowd;

3

(3) the use of less lethal weapons against people engaged in property crimes such as

vandalism and looting;

4

(4) the use of less lethal weapons against a crowd when it is threatening or there is

violence occurring;

5

(5) the use of flash bangs grenades;

6

(6) the use of stun guns and tasers, especially against crowds at sideshows;

(7) whether jabs could be made with batons; and

7

(8) how the OPD would incorporate issues relating to pain compliance and passive

resistance, videotaping and intelligence gathering into the final draft of the policy. 8

9

Negotiations, therefore, continued and a further meeting was convened on April 23,

10 2004 to discuss the areas of disagreement. (Ex. 8, Lederman decl. ¶33). Thereafter, Local 10

11 plaintiffs’ counsel agreed to prepare a single working draft of the policy. Considerable time

12 was spent revising and editing the policy draft and additional time was spent conferring with
13 counsel for the Coles plaintiffs before the finalized draft was sent to counsel for the City of
14 Oakland on May 27, 2004. (Ex. 3, Schlosser decl. ¶¶47-58).
15 Over the Summer and Fall of 2004, the parties continued to have disagreements over
16
17 substantive areas of the policy, including the use of tasers, batons, aerosol O.C. spray, and the

18 handcuffing, cite release and treatment of legal observers. (Ex. 3, Schlosser decl. ¶¶59-72; Ex.

19 8, Lederman decl. ¶34-40). The City eventually withdrew their proposal to use tasers for
20 crowd control after plaintiffs’ counsel provided documentation showing why these weapons 21
were totally inappropriate for crowd control. (Ex. 3, Schlosser decl. ¶¶71-72). 22
Throughout the Fall of 2004, the parties continued their negotiations over the specific 23
24 language in the policy and about the use of batons, pain compliance holds and passive
25 resistance to control crowds. (Ex. 8, Lederman decl. ¶¶40-46). On October 22, 2004,

26 counsel for both sides again met to discuss the policy. A finalized draft of the policy emerged
27 10
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following this meeting. (Ex. 3, Schlosser decl. ¶¶73-78). 1

2

The City announced its adoption of the policy at a joint press conference on November

3 9, 2004. (Ex. 3, Schlosser decl ¶79). Speaking on behalf of the police force, a proud Chief

4 Word hailed the policy as a model for the rest of the country. Id.

5

When asked about the policy months later at his deposition, Chief Word acknowledged

6 that the revised policy was something that he was proud of and agreed that it was the product
7
of months of negotiations in which plaintiffs’ counsel made significant contributions. (Ex. 1, 8

9 Chanin decl. ¶25, Exhibit E).

10

A Stipulation for Partial Settlement was filed on December 20, 2004. This Court filed

11 its Order approving the Stipulation on December 28, 2004. (Ex. 1, Chanin decl., Ex. A). The

12 Court not only approved the settlement, but retained jurisdiction over its enforcement. Id.
13 On February 7, 2005, Local 10 plaintiffs’ counsel sent a written demand to defendants’
14 counsel for attorney’s fees and costs incurred in connection with the injunctive relief claims.
15 Resolution of the fee issue was specifically provided for in the Court’s order. (Ex. 1, Chanin
16
17 decl., ¶26). Although Local 10 plaintiffs’ counsel made it clear that the written demand was

18 not a “take it or leave it” proposition and were amenable to comprise in an effort to save the

19 expense of litigating a formal fee motion, defendants did not counter offer. Accordingly,

20 plaintiffs had no other recourse than to bring the instant motion to recover their fees and costs

21 pursuant to the terms of the settlement agreement. Id.
22

VI. SUMMARY OF BACKGROUND, EXPERIENCE, RATES

23

AND LODESTAR SOUGHT

24

Local 10 plaintiffs are moving the Court for an award of attorneys’ fees for the work

25 performed by their counsel in connection with the injunctive relief claims and injunctive relief

26 settlement in the lodestar sum of $461,826.50 as set forth more fully in Appendix A, which

27 11
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1 summarizes the time spent and hourly rates of Local 10 counsel and in the accompanying

2 declarations of the Local 10 attorneys (Ex. 1, Chanin decl., ¶¶25-31, Ex. F; Ex. 3, Schlosser decl.,

3 ¶¶6-12, Ex. B.; Ex. 5, Burris decl. ¶¶19-21, Ex. A; Ex. 6, Stein decl. ¶¶25-28, Ex. A; Ex. 7,

4 Neumann decl,¶¶13-14, Ex. A; Ex. 8, Lederman decl.¶¶7-8, Ex. A; Ex. 9, Houk decl. ¶¶12-21. Ex.

5 A; Ex. 10, Remar decl and billing summary.

6

In a reasonable exercise of billing judgment, Local 10 plaintiffs’ counsel have also agreed to

7 a voluntary reduction of the lodestar in the amount of ten percent (10%) to account for reductions

8 typically afforded by firms to fee-paying clients and to account for any duplication or discrete billing 9 errors. 5 Id. Therefore the lodestar on the merits less the ten percent billing judgment reduction

10 totals: $415,643.85. Id., Appendix A. Local 10 plaintiffs are moving for a 1.5 enhancement of the

11 merits lodestar, resulting in a total fee claim for work reasonably related to the injunctive relief

12 issues and crowd control policies in the sum of $623,465.77. Id.; Appendix A.

13

Plaintiffs are also moving the Court for an award of attorneys' fees and costs for the

14 work rendered in connection with the issues related to the recovery of attorneys’ fees and

15 costs. The lodestar sum of these services totals: $80,342.50. With the voluntary ten percent

16 billing judgment reduction, the lodestar for the “fees on fees” is reduced to $72,308.25. Id

17 As described more fully below, Local 10 plaintiffs are requesting the application of a modest

18 1.1 enhancement to the “fees on fees” lodestar resulting in a “fees on fees” claim to date in the

19 amount of $79,539.08. Local 10 plaintiffs also reserve the right to supplement this claim with

20 additional fees and costs incurred subsequent to the preparation of their moving papers.

21

Local 10 plaintiffs also move the Court for an Order awarding them the costs incurred

22 in connection with the merits of the injunctive relief claims and with respect to the instant

23 motion in the amount of $4,971.01. (Ex. 1, Chanin decl., Ex. G; Appendix A).

24 5 Such reductions are allowable where the Court, in rendering its decision on the award of
attorneys’ fees and costs, sets forth the reasons for applying a percentage reduction for billing 25 judgment. See, e.g., Gates v. Deukmejian, 987 F.2d 1392, 1402 (9th Cir.1993)(Court must
26 specify reasons for adopting percentage reduction for billing judgment); Bodely v. Thompson 2005 U.S. Lexis 5113 (N.D.Cal 2005)(Court applied 10% reduction offered by plaintiffs in the
27 exercise of billing judgment). 12
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1

In addition to the voluntary ten percent lodestar reduction proposed above, plaintiffs’

2 counsel have also exercised reasonable billing judgment because they scrutinized their time

3 records to exclude from their instant fee claim the hundreds of hours of time spent on the

4 plaintiffs’ individual damage claims, even though that time is arguably related to the injunctive

5 relief issues. Local 10 counsel reserve the right to move for compensation for those fees at a

6 later time.

7

In a further exercise of reasonable billing judgment, Local 10 plaintiffs’ counsel have

8 subtracted a large number of hours of work by law clerks and legal assistants, even though

9 those hours are typically billable to fee-paying clients in the San Francisco Bar Area at market

10 rates of at least $100 per hour. Instead, counsel have apportioned those hours to the work

11 performed on the underlying merits of the individual plaintiffs’ claims and reserve the right to

12 move for an award of these fees and costs at a later time.

13

A. Experience of Plaintiffs’ Attorneys

14

1. Alan Schlosser and ACLU-NC staff

15 Alan Schlosser, who took the lead in the injunctive relief negotiations and drafting of the
16 revised crowd control policy, obtained his law degree from Harvard Law School in 1967 and was
17
18 admitted to the New York Bar in 1968. He was admitted to the California and Massachusetts Bars

19 in 1971 and 1973, respectively. He is admitted to practice law in the United States District Courts

20 for the Northern, Eastern, and Central Districts of California, the United States Courts of Appeals

21 for the Ninth and Second Circuits, and the United States Supreme Court. (Ex. 3, Schlosser decl.,
22 ¶1-3, Ex. A). Since 1976, Mr. Schlosser has been staff counsel for the American Civil Liberties
23 Union Foundation of Northern California, and is currently its Legal Director. Id.
24 Mr. Schlosser is claiming an hourly rate of $550 for his work related to the Local 10
25
26 plaintiffs’ injunctive relief claims and settlement. This hourly rate is consistent with San Francisco

27 13
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Bay Area attorneys of similar background and experience. (Ex. 3, Schlosser decl. ¶9; Ex. 15, 1 2 Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37).

3

Under the direction and supervision of Mr. Schlosser, ACLU attorneys, Mark Schlossberg

4 and Julia Mass, rendered services in connection with Local 10 plaintiffs’ injunctive relief. Hourly

5 rates sought for Mr. Schlosberg and Ms. Mass are $260 and $325, respectively. (Ex. 3, Schlosser
6 decl. ¶¶10-12). These rates are also consistent with the prevailing San Francisco Bay Area market
7 rates for attorneys of similar experience and skill. (Id., Ex. 15, Streeter decl., ¶¶8-10, Ex. 11, Bien
8
9 decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37; Ex. 17, Sobel decl. ¶¶19-20).

10

2. Rachel Lederman

11 Local 10 counsel, Rachel Lederman, obtained her law degree from New College School of
12 Law in 1987 and was admitted to the State Bar of California that same year. She is admitted to
13 practice in the United States District Court for the Northern Districts of California and the United
14 States Courts of Appeals for the Ninth Circuit. (Ex. 8, Lederman decl.¶¶1-2, Ex. B).
15 Ms. Lederman has significant litigation experience, including in the areas of police
16 misconduct, criminal defense and housing rights litigation. Throughout the 1980’s and 1990’s, Ms.
17 Lederman worked extensively on issues involving the constitutional rights of demonstrators and
18 was instrumental in setting up the National Lawyers Guild’s ongoing system for providing legal
19 observers and pro bono criminal defense for demonstrators. (Ex. 8, Lederman decl., ¶¶3-4).
20 Ms. Lederman has also been a presenter on legal issues pertaining to demonstrations, police
21 misconduct and civil rights matters at continuing legal education seminars, and at the National
22 Lawyers Guild and the American Association of Immigration Lawyers national conventions. (Ex.
23 8, Lederman decl. ¶5).
24 Ms. Lederman is claiming an hourly rate of $425 which is consistent with San Francisco
25 Bay Area market rates for attorneys of similar skill and experience. (Ex. 8, Lederman decl.¶8, Ex.
26 15, Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37; Price decl. ¶¶30-
27
14
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1 33; Ex. 16, Vermeulen decl ¶¶4-6; Ex. 17, Sobel decl., ¶¶19-20).

2

3. John Burris

3

The nine Local 10, ILWU dockworker plaintiffs are represented by John L. Burris, who

4 obtained his law degree from Boalt Hall in 1973. He joined the California Bar in 1976 and the

5 Illinois Bar in 1974. Mr. Burris is admitted to practice in the United States District Courts for the

6 Northern, Eastern, and Central Districts of California, the Eastern District of Illinois, and the United

7 States Courts of Appeals for the Ninth and Seventh Circuits. (Ex. 5, Burris decl., ¶1-2).

8

Following his graduation from law school, Mr. Burris was employed as an Associate with

9 the law firm of Jenner & Block in Chicago, Illinois where he litigated and assisted in the litigation of

10 Title VII employment discrimination, criminal, anti-trust and securities cases, as well as arbitrations

11 and administrative proceedings. Subsequently, Mr. Burris became an Assistant State Attorney in

12 Cook County, Illinois, where he prosecuted over 500 criminal cases, most of them involving court

13 trials. Later, he was designated as a Special Prosecutor to handle high visibility, impact cases for

14 the West and South Side district offices. In December 1976, Mr. Burris became a Deputy District

15 Attorney with the Alameda County District Attorney's Office where he litigated numerous felony

16 jury trials. (Ex. 5, Burris decl., ¶3-4).

17

Since March 1979, Mr. Burris has been in private practice in Oakland, California. Over the

18 course of his years in private practice, Mr. Burris has been involved in hundreds of civil rights and

19 employment discrimination cases and more than 90% if his practice is devoted to civil rights and

20 police misconduct cases. (Ex. 5, Burris decl., ¶5-6). Mr. Burris has also written and lectured

21 extensively on police misconduct matters and civil rights litigation and has been the recipient of

22 numerous awards. (Ex. 5, Burris, decl., ¶¶9, 12, 14). He is a frequent commentator on both radio

23 and television. Id. at ¶13.

24

Mr. Burris, along with Local 10 plaintiffs’ counsel, James B. Chanin and Julie M. Houk,

25 represented 119 plaintiffs who were abused at the hands of City of Oakland Police Officers known

26 as “the Riders” in Delphine Allen, et al. v. City of Oakland, et al., U.S.D.C. No. 00-4599 TEH and

27 in the cases related thereto. The Riders case led the City of Oakland to agree to a non-monetary 15
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1 settlement wherein it promised to make major reforms to the supervision and control of its police

2 officers, including reforms in the OPD’s Internal Affairs Division, the monitoring of officers who are

3 the subject of repeated complaints, and the reporting and review of the use of force by members of

4 the Oakland Police Department, among other reforms. Mr. Burris, along with Mr. Chanin, have

5 continued to work closely with the Independent Monitors and the City of Oakland to ensure that

6 the reforms mandated by that agreement are fully implemented. (Ex. 5, Burris decl., ¶¶16,18; Ex. 1,

7 Chanin dec;. ¶3).

8

Mr. Burris is claiming an hourly rate of $550 for the services related to the Local 10

9 plaintiffs’ injunctive relief claims and settlement. (Ex. 5, Burris decl. ¶¶19-21). This rate is

10 consistent with the prevailing San Francisco Bay Area market rates for attorneys of similar skill and

11 experience. (Id., Ex. 15, Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-

12 37; Ex. 12, Price decl. ¶¶30-33).

13

4. James B. Chanin

14

James B. Chanin, graduated from the University of San Francisco Law School in 1977 and

15 was admitted to the California Bar the same year. Prior to that time, Mr. Chanin attended George

16 Washington University in Washington, D.C. and the University of California at Berkeley where he

17 received a B.A., an M.A. and a Ph.C. degree (Candidate in Philosophy) in history. (Ex. 1, Chanin

18 decl.,¶1-3).

19

Mr. Chanin has been in private practice since his graduation from law school and has

20 emphasized civil litigation and trial work. Id. A sizable portion of Mr. Chanin’s practice is devoted

21 to civil rights cases involving police practices. Beginning in the early 1980’s, Mr. Chanin, along

22 with his former partner, Oliver Jones, litigated numerous cases against the City of Richmond Police

23 Department during a period when the Richmond Police Department killed and injured many people.

24 He has subsequently handled a great many claims in both state and federal courts, throughout

25 California, against public entities and public employees, which have involved police practices and

26 law enforcement issues. (Ex. 1, Chanin decl., ¶3-4).

27

As noted above, Mr. Chanin worked with Mr. Burris and Ms. Houk in obtaining the non-

16

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1 monetary settlement in the “Riders” litigation and monetary damage awards for the plaintiffs

2 totaling over $10 million dollars. (Ex. 1, Chanin decl., ¶3). Mr. Chanin and Ms. Houk also

3 represented a Pelican Bay Prison inmate who was severely burned and disfigured by prison

4 employees who maliciously forced the inmate to sit in tub of boiling hot water. (Ex. 1, Chanin decl.

5 ¶3). This case was profiled on “60 Minutes” and resulted in a substantial settlement to the injured

6 inmate. Id.

7

Mr. Chanin has also lectured on police misconduct issues and civil litigation at continuing

8 legal education seminars and regularly lectures on civil rights and legal issues to high school

9 students. (Ex. 1, Chanin decl., ¶4).

10

Mr. Chanin is claiming an hourly rate for his services in the amount of $525. This rate is

11 consistent with San Francisco Bar Area market rates for attorneys of comparable skill and

12 experience and with Court awards of attorneys’ fees in other cases. (Ex.1, Chanin decl., ¶¶27-34);

13 Ex. 15, Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37; Ex. 12, Price

14 decl. ¶¶30-33).

15

5. Julie Houk

16

For over 20 years, Local 10 counsel, Julie M. Houk, has worked with James B. Chanin,

17 both as an associate in his law office and currently as an independent contractor. Ms. Houk

18 obtained Bachelor of Arts and Master of Arts degrees from Marquette University in 1975 and 1979,

19 respectively and obtained her law degree from Golden Gate University School of Law in 1984,

20 where she was wrote for the Law Review and was an instructor in the school’s first year writing

21 and research program. (Ex. 9, Houk decl.¶¶2-3).

22

Ms. Houk was admitted to the State Bar of California in 1984 and to the Illinois State Bar

23 in 1985. She is admitted to practice in the United States District Courts for the Northern, Eastern

24 and Southern Districts of California and the United States Court of Appeals for the Ninth Circuit.

25 (Ex.9, Houk decl. ¶2).

26

Since law school, Ms. Houk has devoted a substantial amount of her legal practice to civil

27 rights matters, including litigating police misconduct, prison abuse and employment discrimination 17
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1 cases in state and federal courts in California with Mr. Chanin’s firm. (Ex. 9, Houk decl., ¶¶4-7). A

2 significant number of these cases have involved claims related to the infliction of serious injuries and

3 deaths resulting from the use of munitions by law enforcement officers. Id.

4

Ms. Houk, along with Mr. Chanin, has also represented other attorneys in making

5 applications for attorneys’ fees and costs. Ms. Houk, along with Local 10 counsel, Bobbie Stein,

6 has been designated take the lead for Local 10 plaintiffs in connection with the preparation of the

7 instant motion for attorneys’ fees and costs. (Ex. 9, Houk decl., ¶14).

8

Ms. Houk is requesting an hourly rate of $450. This rate is consistent with San Francisco

9 Bay Area market rates for attorneys of comparable skill and experience. (Ex. 1, Chanin decl. ¶¶29-

10 30; Ex. 9, Houk decl.¶¶15-16; Ex. 15, Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18,

11 Scott decl.¶¶25-37; Ex. 12, Price decl. ¶¶30-33).

12

6. Bobbie Stein

13

Local 10 counsel, Bobbie Stein, obtained her law degree from the University of San

14 Francisco School of Law in 1983 and was admitted to the State Bar of California in 1984. (Ex. 6,

15 Stein decl.¶1-2). Ms. Stein is admitted to practice in the United States District Courts for the

16 Northern District of California, the United States Courts of Appeals for the Ninth Circuit and the

17 United States District Court for the Eastern District of Wisconsin. (Ex. 6, Stein decl. ¶¶1-2).

18

Since graduating from law school in 1983, Ms. Stein has devoted a substantial amount of

19 her practice to criminal defense, both trial and appellate work, and has devoted considerable time to

20 criminal justice and civil rights issues. (Ex. 6, Stein decl. ¶¶3-10). Ms. Stein has written about

21 criminal justice and civil rights issues in newspapers and magazines and has lectured on legal issues

22 pertaining to demonstrations, police accountability and other issues in a variety of settings, including

23 MCLE training sessions. Id.

24

Ms. Stein has developed widely distributed training materials for activists and lawyers

25 related to demonstrations law and crowd control procedures. Id. From 1990-1997, Ms. Stein was a

26 full time faculty member at New College School of Law and currently serves as an adjunct

27 professor at the University of California’s Boalt Hall. Id. 18
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Along with Ms Lederman, Ms. Stein has been instrumental in setting up an ongoing system 1 2 for providing legal observers and pro bono criminal defense attorneys to demonstrators. Over the 3 years, Ms. Stein has devoted her skills and legal talent to representing literally thousands of people

4 arrested at demonstrations on a pro bono basis. Id

5

In 1989, Ms. Stein was appointed to a task force by then San Francisco Mayor, Art Agnos,

6 to rewrite the crowd control manual for the San Francisco Police Department. Ms. Stein
7
participated in this endeavor with members of the San Francisco Police Department, City Attorney’s 8

9 Office, and representatives from the ACLU and Community United Against Violence. (Ex. 6, Stein

10 decl.¶10).

11

Ms. Stein is claiming an hourly rate of $450, consistent with San Francisco Bay Area

12 market rates for attorneys of comparable skill and experience. (Ex. 6, Stein decl., ¶23, Ex. 15,

13 Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37; Ex. 12, Price decl.

14
¶¶30-33; Ex. 16, Vermeulen decl ¶¶4-6). 15

16

7. Osha Neumann

17

Local 10 counsel, Osha Neumann was admitted to the California Bar in 1987. He is also

18 admitted to practice in the United States District Courts for the Northern Districts of

19 California. Since graduating from New College of Law in 1987, Mr. Neumann has spent the

20 majority of his time as a lawyer practicing in the areas of civil rights, and in particular, police
21 misconduct, the rights of political demonstrators, and the civil rights of the homeless. (Ex. 7,
22
Neumann decl., ¶¶1-2, Ex. A). 23

24

Mr. Neumann was appointed to the Berkeley Police Review Commission where he

25 served from 1984 to 1992. From 1984 to the present he has been the chairperson of

26 Community Defense Incorporated (CD Inc.), a non-profit corporation formed to provide legal
27 19
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defense and education for demonstrators in civil-disobedience protests and education on legal 1 2 issues. C.D. Inc. is the fiscal sponsor of Copwatch, an organization devoted to monitoring the 3 police and documenting allegations of misconduct. Mr. Neumann has also conducted

4 numerous trainings for Copwatch volunteers on topics related to observing police, and the law

5 governing arrests, detentions, and the use of force by police. (Ex. 7, Neumann decl., ¶¶3-8).
6 Since 2001 Mr. Neumann has contracted with the East Bay Community Law Center, to
7 supervise and train Boalt Hall law students at the Center’s Decriminalization of Poverty
8
9 Project (DeCOPP). (Ex. 7, Neumann decl., ¶3).

10

8. Robert Remar

11

Robert Remar, counsel for Local 10 of the ILWU, has worked at the law firm of

12 Leonard Carder LLP since 1985, becoming a partner in 1990. (Ex. 10, Remar decl. ¶¶ 1-7).
13 Mr. Remar graduated from Boalt Hall and passed the California bar in 1981. Id. Following his
14 graduation from law school, he worked for a few years as a prosecuting attorney with the
15 National Labor Relations Board where he investigated and prosecuted cases involving worker
16
17 rights. During his nearly 25 years of legal practice, he has specialized in employment and

18 federal labor law matters involving union and nonunion workers. He has also handled several

19 class actions on both the defense and Plaintiffs' side concerning employment, Civil Rights

20 claims. He has litigated in excess of 50 Federal Court lawsuits. Many of these cases also
21 involved legal issues concerning the constitutional and Civil Rights of individuals. Id.
22
VII. ARGUMENT 23

24

A. Plaintiffs are Entitled to Their Reasonable Attorneys Fees

25

Statutory authority provides for the recovery of an award of attorney’s fees in this case.

26 Under 42 U.S.C. § 1988, California Civil Code §52, subd. (b)(3) and 52.1, subd. (h), and California
27 20
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Code of Civil Procedure § 1021.5, a prevailing plaintiff “should ordinarily recover an attorney’s fee 1 2 unless special circumstances would render such an award unjust.” Chalmers v. City of Los Angeles, 3 796 F.2d 1205, 1210 (9th Cir. 1986), amended, 808 F.2d 1373 (9th Cir. 1987)(citing Hensley v.

4 Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). An award of attorneys’
5 fees is proper in the instant matter. 6
1. Local 10 plaintiffs are entitled to fees and costs under 42 U.S.C. §1988 7
Pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988, a 8 9 district court has the authority to award reasonable attorney's fees to a prevailing party in an action
10 brought under 42 U.S.C §1983. City of Riverside v. Rivera, 477 U.S. 561, 567, 91 L. Ed. 2d 466,

11 106 S. Ct. 2686 (1986). The purpose of 42 U.S.C. §1988 is to ensure that private parties are able

12 to secure effective counsel to protect rights guaranteed by federal law. City of Riverside v. Rivera,
13 supra, at 576. It is a means by which non-affluent plaintiffs can have “effective access” to the
14 courts to enforce civil rights laws. (see, Kay v. Ehrler, 499 U.S. 432, 436, n. 8, 111 S.Ct. 1435,
15 113 L.Ed. 486 (1991); Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400, 401-402, 88 S.Ct.
16
17 964, 19 L.Ed. 2d 1263 (1968) (per curiam). A party need not prevail on all issues litigated, but

18 must succeed on at least some of the merits. City of Riverside v. Rivera, supra, at 570.

19

While the Supreme Court has held that a “voluntary change” in conduct due to the filing of

20 a lawsuit itself is not sufficient to confer prevailing party status for purposes of an attorney’s fee
21 award, the Court acknowledged that a "judicially sanctioned change in the legal relationship
22 between the parties" would support a fee award. Buckhannon Bd. & Care Home, Inc. v. W. Va.
23
24 Dep't of Health & Human Res., 532 U.S. 598, 600-10 (2001). As evidenced by this Court’s

25 December 28, 2004 Order, there has been a judicially sanctioned change in the legal relationship

26 between the parties in this case. (Ex. 1, Chanin decl., Ex. A).
27 21
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The Ninth Circuit has repeatedly held that a party achieves “prevailing party” status when it 1 2 has obtained an injunctive and/or a legally enforceable settlement. See, e.g., Tipton-Whittingham v. 3 City of Los Angeles, 316 F.3d 1058 (9th Cir. 2003)(Under federal law, both a preliminary injunction

4 and an enforceable settlement agreement carry the "judicial imprimatur" necessary to satisfy
5 Buckhannon.); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)(Prevailing 6
party status for plaintiff who obtained preliminary injunction notwithstanding the fact that the case 7
was later rendered moot); Barrios v. California Interscholastic Fed'n, 277 F.3d 1128, 1134 n.5 8 9 (9th Cir. 2002) cert. denied, 154 L. Ed. 2d 28, 123 S. Ct. 98 (2002)(Plaintiff entitled to attorneys'
10 fees under the ADA where plaintiffs entered into a legally enforceable settlement agreement). There

11 can be no question in the instant case that Local 10 plaintiffs are a prevailing party.

12

The legally enforceable injunctive relief obtained by plaintiffs included substantive reforms

13 to the OPD’s crowd control policy. Indeed, the Court recognized plaintiffs prevailing party status
14 and their right to attorneys fees in its order approving the partial settlement, which specifically
15
provided for “attorney’s fees and costs related to this partial settlement.” (Ex. 1, Chanin decl., Ex. 16

17 A).

18

2. Local 10 plaintiffs are entitled to fees and costs under

California Code of Civil Procedure '1021.5

19

20

The Local 10 plaintiffs have alleged claims for relief in their Complaint under both federal

21 and California law. California Code of Civil Procedure '1021.5 is referred to as the California

22 "private attorney general statute." Graham v. Daimler Chrysler Corporation (2005) 34 Cal. 4th
23 553, 565. Under this section, the court may award attorney fees to a “successful party” in any action
24 that has resulted in the enforcement of an important right affecting the public interest where (a) a
25 significant benefit has been conferred on the general public or a large class of persons, (b) the
26

27 22
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necessity and financial burden of private enforcement are such as to make the award appropriate, 1 2 and (c) such fees should not in the interest of fairness be paid out of the recovery to the party. Id.; 3 Beasley v. Wells Fargo Bank (1991) 235 Cal. App. 3d 1407, 1413.

4

The private attorney general doctrine rests on the assumption that "without some

5 mechanism authorizing the award of attorney's fees, private actions to enforce such important public
6 policies will as a practical matter frequently be infeasible." Woodland Hills Residents Association v.
7 City Council (1979) 23 Cal. 3d 917, 933. "A central function is to 'call public officials to account
8
9 and to insist that they enforce the law'." Serrano v. Unruh (1982) 32 Cal. 3d 621, 632 (Serrano IV).

10 Under §1021.5, plaintiffs are considered a "prevailing parties" when the lawsuit was a catalyst

11 motivating defendants to modify their behavior or to provide the primary relief sought. Graham,

12 supra, at 566-567. In Graham, the Court held that a “successful party” is one who vindicates an
13 important right by activating defendants to modify their behavior. Graham, supra, at 567.
14 In this case, Local 10 plaintiffs have clearly met the criteria for a fee award under §1021.5.
15 Plaintiffs have acted as private enforcers, vindicating important civil rights. This case and the result
16
17 obtained garnered extensive media attention because of its significance. Certainly the injunctive

18 relief obtained will inure to the benefit of the general public. (Ex. 16, Vermeulen decl, ¶7, Ex. 14,

19 Graf decl.¶¶6-8, Ex. 13, Friedman decl. ¶¶5-6; Scott decl. ¶¶23). The necessity and burden of

20 private enforcement make a fee award appropriate in this case. Furthermore and it would be unfair
21 to take the fees and costs from the recovery of individual Local 10 plaintiffs, who were injured
22
because of the OPD’s flawed policies. 23

24

3. Local 10 plaintiffs are entitled to an award of attorneys fees and costs under

California Civil Code Sections 52 and 52.1

25

Local 10 plaintiffs are also entitled to recover their reasonable attorneys fees and costs 26

27 23
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because they prevailed on their injunctive relief claims under California Civil Code §52.1. 1

2

California Civil Code Section 52.1(b) provides, in pertinent part that:

3

“Any individual whose exercise or enjoyment of rights secured by the Constitution or

laws of the United States, or of rights secured by the Constitution or laws of this state,

4

has been interfered with, or attempted to be interfered with, as described in subdivision (a),

may institute and prosecute in his or her own name and on his or her own behalf a civil

5

action for damages, including, but not limited to, damages under Section 52, injunctive

6

relief, and other appropriate equitable relief to protect the peaceable exercise or

enjoyment of the right or rights secured.”

7

Section 52.1(h) further provides that in addition to any damages, injunction or equitable 8

9 relief, the court may award the plaintiff its reasonable attorneys fees in an action brought pursuant to

10 §52.1(b)

11

By obtaining the legally enforceable injunctive relief settlement which protects the peaceable

12 exercise and enjoyment of their Constitutional rights, Local 10 plaintiffs are a prevailing party under

13 California Civil Code §52 and are entitled an award of their reasonable attorneys fees and costs

14
pursuant to California Civil Code §52.1. 15

16

B. Calculation of The Lodestar

17

Once a court determines that party should be awarded attorneys fees under §1988, it must

18 determine what fees are reasonable by calculating the "lodestar." Jordan v. Multnomah County, 815

19 F.2d 1258, 1262 (9th Cir. 1987). The lodestar method is also the appropriate method for calculating
20 recoverable attorneys' fees under California law. Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 21
321-25, Serrano v. Priest (Serrano III) (1977) 20 Cal. 3d 25, 48-49. 22
The lodestar is determined by “multiplying the number of hours reasonably expended on 23
24 litigation by a reasonable hourly rate." See, e.g., Chalmers, supra, 796 F.2d at 1210; Schwartz v.
25 Health & Human Serv., 73 F.3d 895, 901 (9th Cir. 1995); Keith v. Volpe, 833 F.2d 850, 859 (9th

26 Cir. 1987). In calculating the lodestar, the court must determine both a reasonable number of hours
27 24
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and a reasonable hourly rate for each attorney. Chalmers, supra, 796 F.2d at 1210. 1

2

Several factors must be considered in the court’s determination of a reasonable hourly rate,

3 including, the experience, skill and reputation of the applicant and the prevailing rate in the

4 community6 for similar work performed by attorneys of comparable skill, experience and reputation.

5 Id. at 1210-11. There is a "strong presumption" that the resulting lodestar figure constitutes the

6 reasonable fee. Jordan, supra, 815 F.2d at 1262; City of Riverside v. Rivera, supra, 477 U.S. 561,
7
568 (1986). 8

9

The court should not exclude any hours from the lodestar amount unless it can be shown

10 that they were not reasonably expended because they are excessive, redundant, or otherwise

11 unnecessary. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).

12

1. Plaintiffs hourly rates are reasonable

13 Attorneys' fees are to be calculated according to the current prevailing market rate in the
14 relevant legal community. Missouri v. Jenkins, 491 U.S. 274, 296 (1989), Serrano v. Unruh
15
(Serrano IV) (1982) 32 Cal.3d 621. The rate should be "in line with those prevailing in the 16

17 community for similar services by lawyers of reasonably comparable skill, experience and

18 reputation." Blum v. Stenson, 465 U.S. 886, 896, n. 11 (1984). Jordan v. Multnomah County,

19 supra, 815 F.2d at 1262 ("The prevailing market rate in the community is indicative of a reasonable
20 hourly rate"), Chalmers v. City of Los Angeles, supra, 796 F.2d at 1210-11. 21
The relevant community for purposes of determining the prevailing market rate in this case 22
is San Francisco since that is the forum in which the district court sits. Davis v. Mason County, 927 23
24 F.2d 1473, 1488 (9th Cir. 1991), cert. denied, 502 U.S. 899 (1991). The Ninth Circuit has held

25
26 6 The relevant community for purposes of determining the prevailing market rates is generally the forum in which the district court sits. See, e.g., Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.
27 1997), cert. denied, 525 U.S. 827 (1998). 25
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that affidavits of plaintiffs' attorneys, affidavits of other attorneys concerning prevailing fees in the 1 2 community, as well as rate determinations in other cases, may constitute satisfactory evidence of the 3 prevailing market rate. Chalmers, supra, 796 F.2d at 1214.

4

The plaintiffs have satisfied their burden of showing that the hourly rates requested by

5 counsel are in line with the prevailing market rates for the San Francisco Bay Area. (See, e.g., Ex.
6 Ex. 15, Streeter decl., ¶¶8-10, Ex. 11, Bien decl., ¶10-16; Ex. 18, Scott decl.¶¶25-37, Ex. A; Ex.
7 17, Sobel decl. ¶¶19-20). Therefore, Plaintiffs request that the Court award fees at the hourly rates
8
9 requested in this Motion.

10

2. The number of hours claimed is reasonable

11

Under both Federal and California law, counsel for the prevailing party should be paid for

12 all time reasonably expended. Blanchard v. Bergeron, 489 U.S. 87, 91 (1989), Serrano v. Unruh

13 (Serrano IV) (1982) 32 Cal. 3d 621, 639, Stokus v. Marsh (1990) 217 Cal. App. 3d 647, 654-56,

14 Wallace v. Consumers Coop. of Berkeley (1985) 170 Cal. App. 3d 836, 846-49. Prevailing parties

15 are entitled to recover reasonable attorneys' fees for every item of service that would have been

16 undertaken by a reasonable and prudent lawyer to advance or protect his client's interest. Hensley

17 v. Eckerhart, 461 U.S. at 435; (Serrano IV), 32 Cal. 3d at 639. Counsel’s travel time is

18 compensable, as are expenses for law clerk, paralegal and secretarial services. Barjon, supra, Guinn

19 v. Dotson (1994) 23 Cal. App. 4th 262, 268-70.

20

Local 10 plaintiffs anticipate that the defense will argue that their hours are unreasonable

21 because they exceed the number of hours claimed by Coles counsel in the related case. This,

22 however, is an untenable position in light of the differences inherent in the representation undertaken

23 by Local 10 counsel and the lead role that Mr. Schlosser and Ms. Lederman took in developing the

24 new crowd control policy.

25

As has been discussed above and in the attached declarations, Mr. Schlosser and Ms.

26 Lederman were designated by the Local 10 team as lead counsel for purposes of drafting and

27 negotiating the policy. Defense counsel and Coles counsel, however, also vested Mr. Schlosser 26
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1 with primary drafting responsibilities. (Ex. 3, Schlosser decl., ¶26) Local 10 counsel provided

2 defendants’ counsel with an initial draft proposal in December 2003. (Ex. 3, Schlosser decl. ¶¶27-

3 33) Although the OPD prepared a draft document, all parties ultimately worked to revise existing

4 OPD policies from a single draft document prepared by Local 10 counsel. (Ex. 3, Schlosser

5 decl¶¶53-78). The many hours that Local 10 counsel, and in particular, Mr. Schlosser, spent

6 researching, drafting and communicating with co-counsel must be figured into the equation when

7 calculating reasonable fees.

8

Furthermore, Local 10 plaintiffs represent a wide spectrum of injuries and interests In

9 addition to the union and demonstrators, some of the 52 plaintiffs were legal observers,

10 videographers, union members, arrestees, and members of groups that regularly plan

11 demonstrations in Oakland. The interests of all of these individuals and groups had to be taken into

12 account when negotiating the policy with the City of Oakland. This meant interviewing a

13 considerable number of people, reviewing hours of videotape and hundreds of pages of documents.

14

Local 10 counsel spent a great deal of time investigating the events surrounding each of the

15 plaintiffs’ unique circumstances to assess whether they had an actionable claim, the type of

16 munitions or other force that was employed against them (i.e., motorcycles, batons, “less lethal”

17 munitions or other force), the circumstances under which the force was used and by whom, the

18 absence of justification for the use of force and other issues which were directly and indisputably

19 related to the injunctive relief claims. Plaintiffs’ counsel had to investigate the case fully in order

20 to be able to understand the flaws in the OPD’s policies and craft remedial revisions.

21

Although many attorneys worked on this policy in some capacity, there is nothing

22 inherently unreasonable about a client having multiple attorneys. (See, e.g., Bodely v.

23 Thompson, supra, 2005 U.S. Lexis 5113). For that reason, a reduction for redundant hours

24 "is warranted only if the attorneys are unreasonably doing the same work. An award for time

25 spent by two or more attorneys is proper as long as it reflects the distinct contribution of each

26 lawyer to the case and the customary practice of multiple-lawyer litigation." Johnson v.

27 University College of University of Alabama in Birmingham, 706 F2d 1205, 1208 (11th Cir. 27
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1 1983).

2

The association of counsel was created in this case in an effort to conserve attorneys’ fees

3 and costs. Therefore plaintiffs should not be penalized by denying them reasonable attorneys fees

4 for work done on this case when each could have brought multiple, separate actions and have

5 generated more attorneys’ fees and costs individually.

6

Moreover, the fact remains that different attorneys represent specific interests in the

7 litigation. Specifically, Mr. Burris represents nine injured dockworkers, Mr. Remar represents the

8 union local, the ACLU-NC counsel are primarily involved in the injunctive and declaratory relief

9 issues and the remaining counsel are collectively handling the remaining 41 individual plaintiffs.

10 Since the members of the legal team have specific interests that they must protect, it is not

11 unreasonable that multiple attorneys had a role in the negotiation and drafting of the crowd control

12 policy to ensure that the interests of their individual clients were protected.

13

Further justification for the number of attorneys who worked on this policy comes from the

14 sheer magnitude of the work required in a multi-plaintiff case of this nature and the complexity of

15 the issues involved in creating a crowd control policy that at once respects the rights of the

16 demonstrators and bystanders and allows for proper police enforcement. Plaintiffs needed

17 specialized skills in a number of areas including civil rights law, police practices, police misconduct,

18 criminal law, crowd control, and knowledge of chemical agents and other so called “less lethal”

19 munitions. Each attorney on the litigation team brought a unique perspective to the negotiations.

20

Local 10’s litigation team was structured to maximize resources and efficiency and minimize

21 duplication of efforts. Alan Schlosser did the primary drafting of the policy and he and Rachel

22 Lederman attended negotiation meetings with defendants’ counsel. A great deal of Mr. Schlosser’s

23 time related to policy negotiations entailed consultations with co-counsel and preparation of

24 memos outlining the ongoing process which were communicated largely through emails. (Ex.

25 3, Schlosser decl). Because all the attorneys involved had individualized knowledge and

26 experience which was germane to the injunctive relief issues, their contributions were

27 invaluable to the negotiation process and to the development of the crowd control policy that 28
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1 was ultimately adopted by the OPD. In the end, the collaborative efforts of the Local 10 legal

2 team led them to obtain an excellent result, not only on behalf of the individual plaintiffs, but

3 for the general public. The hours incurred by them in connection with their successful

4 resolution of the injunctive relief claims are reasonable given the magnitude of the underlying

5 incident and the complex technical and legal issues involved in crafting a crowd control policy

6 which will be used by a large, metropolitan police department for years to come. (See, e.g.,

7 Ex. 17, Sobel decl., 9-14; Ex. 13, Friedman decl¶¶5-6; Ex. 14, Graf decl. ¶¶ 7-8; Ex. 16,

8 Vermeulen decl ¶¶6-7).

9

Therefore, the hours claimed by Plaintiffs for work which resulted in the successful and

10 important injunctive relief settlement are reasonable, and plaintiffs attorneys should be fully

11 compensated.

12

C. The Court Has the Discretion to Enhance the Lodestar under California Law

13

1. Local 10 Plaintiffs’ Request A 1.5 Lodestar Enhancement

14

The Court has considerable discretion in determining whether to award an enhancement, or

15 multiplier of the lodestar. Factors for the court’s consideration include: (1) the risk, or contingent

16 nature of the fee award; (2) The undesirability of the case; (3) the novelty, difficulty and complexity

17 of the issues presented and the skill displayed by counsel; (4) the importance of the litigation and the

18 results obtained; (5) the public service element of the case; and (6) the delay in receipt of fees.7

19

Enhancements in the range of 1.5 to 2.0 are not unusual. See, e.g., Oberfelder v. City of

20 Petaluma, 2002 U.S. Dist. LEXIS 8635 (N.D. Cal. 2002)(Enhancement of 1.5); Mitchell v.

21 Bankfirst, 2003 U.S. Dist. LEXIS 3091 (N.D. Cal. 2003)(Enhancement of 1.9); Crommie v. Public

22 7 See, e.g., Serrano III, supra, 20 Cal. 3d at 49; Ketchum v. Moses (2001) 24 Cal. 4th 1122;
23 Graham, 34 Cal. 4th 581-82, Beasley, 235 Cal. App. 3d at 1413; Raiders V. 203 Cal. App. 3d at 82-85; Kern River Public Access Comm. v. City of Bakersfield (1985) 170 Cal. App. 3d 1205,
24 1227-29; Coalition for Los Angeles County Planning v. Board of Supervisors (1977) 76 Cal. App. 25 3d 241, 251; Crommie v. State of California Public Utilities Comm'n, 840 F. Supp. 719, 725,
reversed in part on other grounds, sub nom, Mangold v. California Public Utilities Comm'n, 67 26 F.3d 1470 (9th Cir. 1995)(applying California law and reciting factors);

27 29
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1 Utilities Comm., 840 F. Supp. 719, 725-26 (N.D. Cal. 1994), aff’d in part and remanded sub nom,

2 Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470 (enhancement of 2.0); City of Oakland v.

3 Oakland Raiders (Raiders V) (1988) 203 Cal. App. 3d 78, 82-85 (Enhancement of approximately

4 2.3); Coalition for Los Angeles County Planning (1977) 76 Cal. App. 3d 241, 251 (Enhancement

5 of more than 2.0); Downey Cares v. Downey Community Development Com. (1987) 196 Cal. App.

6 3d 983, 995 (Enhancement of 1.5). In this case, all factors support a 1.5 enhancement of the

7 lodestar.

8

2. Risk assumed by counsel

9

In Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138, the California Supreme Court

10 recognized that the lodestar reflects the general local hourly rate for a fee-bearing case where

11 counsel bills the client and is reasonably assured of receiving payment for the services rendered.

12 The Court in Ketchum recognized that the lodestar sum may be enhanced in cases such as the

13 instant one, to account for the risk that the attorney will not receive payment if the client does not

14 prevail. The Court recognized that the enhancement of the lodestar constitutes “earned

15 compensation,” rather than a windfall, because it is neither unexpected nor fortuitous since it is

16 intended to approximate market-level compensation which typically includes a premium for the risk

17 of nonpayment or delay in payment of attorney fees. Id.

18

In Oberfelder, supra, the Court noted that civil rights cases, particularly those involving

19 allegations of police misconduct, “involve more risk than the contingency of recovery because their

20 enforcement often challenges established policy and practice and upholds individual rights in the

21 face of law enforcement activity.” This is just such a case.

22

Plaintiffs counsel represent a large number of people who where exercising their First

23 Amendment right to free exercise of speech and association by attending a demonstration opposing

24 the war in Iraq. The political nature of the underlying event, where many potential jurors are likely

25 to have pre-existing opinions about the Iraq war which may significantly differ from the viewpoints

26 expressed by the plaintiffs, makes this case a particularly risky endeavor for counsel.

27

Furthermore, while some of the Local 10 plaintiffs sustained very serious and life altering

30

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1 injuries, others were less seriously injured or incurred little or no medical expenses as a result of

2 their injuries. This fact also makes the potential for a substantial damage award even more

3 uncertain.

4

The facts of the instant case may also present difficult questions for jurors who might be

5 inclined to believe that police officers always act within the scope of their employment even in the

6 face of evidence of excessive force. This reality also makes any award for damages uncertain. Due

7 to the extensive nature of the underlying events and the large number of plaintiffs, Local 10 counsel

8 were required to undertake a time-consuming and expensive investigation without regard for

9 whether they would be paid for their services or reimbursed for their costs. Additionally, there was

10 no guarantee that Local 10 plaintiffs would prevail on their injunctive relief claims since such relief is

11 generally rare in police misconduct litigation. (Ex. 18, Scott decl¶¶16-20; Ex. 17, Sobel decl¶¶14-

12 18).

13

Given the substantial risk undertaken by Local 10 counsel that they would never be

14 compensated for their fees or costs unless the plaintiffs prevailed on at least some of their claims in

15 the litigation, they respectfully submit that a 1.5 enhancement of the lodestar is reasonable.

16

3. The importance of the litigation and results obtained served the greater public

17

interest.

18

The public service element of the case is also a factor to be considered when determining

19 whether to include a multiplier in a fee award. See, e.g., Coalition for Los Angeles County

20 Planning, 76 Cal. App. 3d at 251; Crommie, 840 F. Supp. at 722-23. The injunctive relief

21 settlement in this case not only conferred a benefit to the individual plaintiffs, but to the public at

22 large. Veteran civil rights attorneys have applauded the settlement and the resultant crowd control

23 policy as an excellent victory. (See, e.g., Ex. 11, Bien decl., Ex. 13, Friedman decl., Ex. 14, Graf

24 decl., Ex. 16, Vermeulen decl, Ex. 17, Sobel decl., Ex. 18, Scott decl) The public service aspect of

25 this case is underscored by Chief Word’s acknowledgement that the revised crowd control policy is

26 not only something he is proud of personally, but that he hoped it would serve as model for other

27 police departments nationwide. In fact, the new OPD policy has already been used as a model for 31
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1 negotiating crowd control policies in other cities. (Ex. 13, Friedman decl ¶5).

2

Wide spread media attention to the case and the adoption of the new policy further

3 evidences the considerable interest to the public at large. The importance of the litigation and the

4 benefit inured to the public because of the new crowd control policy supports the lodestar

5 enhancement.

6

4. Delay in the receipt of fees and undesirability of the case.

7

Another factor to be considered in enhancing the lodestar is the delay in the receipt of fees.

8 See, e.g., Raiders V, 203 Cal. App. 3d at 82-83 (enhancement of more than 2.3 based in part on

9 "deferral of payment of counsel's fees" in eminent domain case). Plaintiffs' counsel have tirelessly

10 pursued this litigation for more than two years, spending more than one year on the negotiations for

11 the injunctive relief settlement and revisions to the OPD crowd control policy. The long wait for

12 compensation is a deterrent to attorneys taking these cases unless there is a mechanism to

13 compensate them for that wait.

14

Moreover, cases such as the instant one are undesirable to many attorneys. Police

15 misconduct cases are very difficult and unattractive cases. They are inherently difficult to litigate

16 because of the complexity and the difficulty in establishing liability. Juries are often reluctant to

17 award high damages against public entities and law enforcement officers. Where, as here, the case

18 is patently political, many jurors’ views on questions of liability will likely be clouded by their own

19 political views. (Ex. 17, Sobel decl, supra, Ex. 18, Scott decl., supra)

20

These are an important factors militating in favor of enhancement in this case. Therefore,

21 Local 10 plaintiffs respectfully request that the Court grant their request for a 1.5 lodestar

22 enhancement.

23

D. Plaintiffs Are Entitled To Recover Attorneys' Fees For Services Rendered

In Connection With Efforts To Obtain An Award Of Fees And Expenses 24

In the Ninth Circuit, '1988 attorneys' fees (i.e., “fees on fees”) are ordinarily available to 25

compensate attorneys for the successful litigation of attorneys' fee applications. Barlow-Gresham 26

Union High School Dist. v. Mitchell, 940 F.2d 1280, 1286 (9th Cir. 1991), Clark v. City of Los 27

32

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1 Angeles, 803 F.2d 987, 992 (9th Cir. 1986)(citing, In re Nucorp Energy, Inc., 764 F.2d 655 (9th

2 Cir. 1985)), Harris v. McCarthy, 790 F.2d 753, 758-59 (9th Cir. 1986), Jordan, 815 F.2d at 1264,

3 Kinney v. International Brotherhood of Electrical Workers, 939 F.2d 690, 692-95 (9th Cir. 1991).

4 Under California law, the fees incurred in successfully securing awards of attorneys' fees and costs

5 are recoverable and are also subject to enhancement of the lodestar. Downey Cares v. Downey

6 Community Development Comm. (1987) 196 Cal. App. 3d 983, 997-98, Mangold v. California

7 Public Utilities Comm'n, 67 F.3d 1470, 1479 (9th Cir. 1995) (applying California law).

8

As set forth on Appendix A, the lodestar for the Local 10 plaintiff’s “fees on fees” claim is

9 in the sum of $80,342.50. For the same reasons as stated in their fee claim on the merits, Local 10

10 plaintiffs are voluntarily reducing the lodestar by 10 percent in an exercise of reasonable billing

11 judgment, resulting in an adjusted lodestar in the sum of $72,308.25. Local 10 plaintiffs respectfully

12 move the Court for an Order awarding them a fully compensable fee for the work performed in

13 connection with their efforts to obtain the award of attorneys’ fees as set forth herein.

14

1. Plaintiffs request a 1.1 lodestar enhancement for work on the fee motion

15

In Graham, supra, the California Supreme Court reaffirmed that the Court has discretion to

16 award a lodestar enhancement to the fees incurred by counsel for work performed in connection

17 with a fee motion, albeit at a lower rate than for an enhancement awarded on the underlying merits,

18 due to the contingent risk factor. Therefore, Local 10 plaintiffs respectfully move the Court for a

19 1.1 lodestar enhancement on the fees incurred in connection with the instant motion, resulting in a

20 total “fees on fees” claim in the amount of $79,539.08. See, Appendix A.

21

E. Plaintiffs Are Entitled To Reimbursement Of Out Of Pocket Costs

22

A reasonable attorneys' fee under 42 U.S.C. '1988 includes reimbursement of out-of-

23 pocket costs. Missouri v. Jenkins, supra, at 289. Under Civil Code §1021.5, a prevailing party

24 may also be awarded “expert witness fees and other nonrecoverable expenses incurred by counsel”

25 if “they represent expenses ordinarily billed a client and are not included in the overhead component

26 of counsel’s hourly rate.” Beasley, 235 Cal. App. 3d 1421-22. Plaintiffs therefore seek

27 compensation for such expenses in the amount of $4,971.01. (Ex. 1, Chanin decl., Ex. G). 33
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FOR ATTY FEES AND COSTS C-03-2962 TEH (JL)

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Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page43 of 44

1

2

VIII. CONCLUSION

3

Local 10 plaintiffs achieved an excellent result in this litigation in obtaining the settlement of

4 the injunctive relief claims. The amount of time spent on the policy included much more than mere
5 negotiations with defendants. The new policy was the result of intense analysis, research, and
6
skillful drafting. Due to the number of plaintiffs and various interests involved, the case was more 7

8 complicated than one in which only one plaintiff seeks relief. The importance of this policy cannot

9 be underestimated. Oakland’s new crowd policy will not only benefit the residents of Oakland, but

10 will benefit a much broader community. The policy has already been circulated to attorneys in other
11 cities is being used as a model for crowd control policies throughout the country. 12
Local 10 plaintiffs are clearly prevailing parties under both federal and state law and they 13
should receive a fully compensatory award of their reasonable costs and fees for their efforts in 14
15 obtaining this result. Local 10 plaintiffs respectfully request that the Court grant their motion for
16 reasonable attorneys fees and costs as set forth herein.

17 Dated: May 27, 2005 18 19 20

________________/S/__________________ BOBBIE STEIN Attorney for Local 10 Plaintiffs

21

_______________/S/___________________

22

JULIE M. HOUK Attorney for Local 10 Plaintiffs

23

24

25

26

27 34
28 LOCAL 10 PLAINT. MEMO RE MOT.
FOR ATTY FEES AND COSTS C-03-2962 TEH (JL)

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Case3:03-cv-02962-TEH Document65 Filed05/27/05 Page44 of 44

APPENDIX A 1

2

CALCULATION OF THE LODESTAR ON THE MERITS

3 ATTORNEY
4

Alan Schlosser 5 John L. Burris

6 James B. Chanin Robert Remar

7 Julie M. Houk

Bobbie Stein 8 Rachel Lederman

9

Osha Neumann Julia Mass

10 Mark Schlosberg

YEAR ADMITTED
1968 1973 1977 1981 1984 1984 1987 1987 1996 2000

HOURS
259.9 68 74.8 11.2 29.3 82 349.9 66 14.6 20.4

HOURLY

RATE

LODESTAR

$550 $550 $525 $475 $450 $450 $425 $425 $325 $260

$142,945.00 $ 37,400.00 $ 39,270.00 $ 5,320.00 $ 13,185.00 $ 36,900,00 $148,707.50 $ 28,050.00 $ 4,745.00 $ 5,304.00

11 Total Merits Lodestar

$461,826.50

12 Lodestar Less Ten Percent Reduction for Billing Judgment

$415, 643.85

13 Total Adjusted Lodestar + 1.5 Enhancement

$623,465.77

14
CALCULATION OF THE LODESTAR FOR FEES WORK 15

16 ATTORNEY

YEAR ADMITTED

HOURS

HOURLY

RATE

LODESTAR

17 Alan Schlosser
18 Julie M. Houk Bobbie Stein
19

1968 1984 1984

28.3 48.8 95.15

$550 $450 $450

$15,565.00 $21,960.00 $42,817.50

20 Total Fees Lodestar

$80,342.50

21 Lodestar Less Ten Percent Reduction for Billing Judgment

$72,308.25

22 Total Adjusted Lodestar + 1.1 Enhancement

23

TOTAL FEE CLAIM CALCULATION

24 Adjusted Lodestar + 1.5 Enhancement on the Merits
25 Adjusted Lodestar + 1.1 Enhancement on the Fees Work
Costs and Expenses 26 Total Claim for Attorneys’ Fees and Costs

27

28 LOCAL 10 PLAINT. MEMO RE MOT.
FOR ATTY FEES AND COSTS C-03-2962 TEH (JL)

$79,539.08
$623,465.77 $ 79,539.08 $ 4,971.01 $707,975.86
35

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 Case3:03-cv-02962-TEH Document279 Filed07/31/06 Page1 of 4

1 GREGORY M. FOX, STATE BAR NO. 070876 Arlene C. Helfrich, State Bar No. 096461
2 Bertrand, Fox & Elliot The Waterfront Building - 2749 Hyde Street
3 San Francisco, California 94109 Telephone: (415) 353-0999
4 FAX (415) 353-0990 Attorneys for Defendants CITY OF OAKLAND
5 and POLICE CHIEF RICHARD WORD

6 (List of Additional Counsel Attached)

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 LOCAL 10, INTERNATIONAL LONGSHORE )

AND WAREHOUSE UNION, et al., 12

) File No. No. C 03-2962 TEH (JL) )

13

Plaintiffs,

vs.

) Hon. Thelton E. Henderson )

14

)

CITY OF OAKLAND; et al., 15

) STIPULATION AND (PROPOSED) ORDER ) DISMISSING THE ENTIRE ACTION ON

16

Defendants.

) BEHALF OF ALL NAMED PLAINTIFFS

_______________________________________ ) AND THEIR COUNSEL OF RECORD,

17

WITH PREJUDICE

18

19

20

21

22

23

24

25

26

27

28

1
STIPULATION AND (PROPOSED) ORDER DISMISSING ENTIRE ACTION OF ALL PLAINTIFFS AND ALL COUNSEL WITH PREJUDICE Case No. C-03-2962 TEH (JL)

Case3:03-cv-02962-TEH Document279 Filed07/31/06 Page2 of 4

1

2 JAMES B. CHANIN, SBN 76043

JULIE M. HOUK, SBN 114968

3 LAW OFFICES OF JAMES B. CHANIN 3050 Shattuck Avenue

4

Berkeley, California 94705 Telephone: (510) 848-4752

5 FAX (510) 848-5819

6 JOHN L. BURRIS, SBN 69888 7677 Oakport Street, Suite 1120
7 Oakland, CA 94621 Telephone: (510) 839-5200
8 FAX (510) 839-3882

9

RACHEL LEDERMAN, SBN 130192

10 NATIONAL LAWYERS GUILD and Law Offices of Rachel Lederman and Alexsis C. Beach

11

558 Capp Street San Francisco, CA 94110

12

Telephone:(415) 282-9300 FAX (415) 285-5066

13 ALAN L. SCHLOSSER, SBN 49957 JULIA HARUMI MASS SBN 189649
14 MARK SCHLOSBERG, SBN 209144 AMERICAN CIVIL LIBERTIES UNION
15 FOUNDATION OF NORTHERN CALIFORNIA, 1663 Mission Street, Suite 460
16 San Francisco, CA 94103 Telephone: (415) 621-2493
17 FAX (415) 255-8437

18 Counsel for Plaintiffs Local 10 Longshore and Warehouse Union et al. C03-2962 THE (JL)
19

20

John A. Russo Esq. State Bar No. 129729 City Attorney

21

Randolph W. Hall, Esq. State Bar No. 080142 Chief Asst. City Attorney

22

Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor

23 Oakland CA 94612 Telephone: (510) 238-3601

24 FAX (510) 238-6500

25 Counsel for defendant CITY OF OAKLAND et al
26

27

28

2
STIPULATION AND (PROPOSED) ORDER DISMISSING ENTIRE ACTION OF ALL PLAINTIFFS AND ALL COUNSEL WITH PREJUDICE Case No. C-03-2962 TEH (JL)

Case3:03-cv-02962-TEH Document279 Filed07/31/06 Page3 of 4

1

STIPULATION

2

IT IS HEREBY STIPULATED by and between the parties, ALL NAMED PLAINTIFFS, BY

3 AND WITH THEIR COUNSEL OF RECORD, and the Defendants CITY OF OAKLAND,

4 RICHARD WORD, PATRICK HAW, ROD YEE, E. POULSON, HOWARD A. JORDAN, DAVE

5 KOZICKI, T. HOGENMILLER, E. TRACEY, R. GUTIEREZ, A. OERLEAMNS, R. HOLMGREN,
6 P. GONZALES, S. KNIGHT, M. RANDALL, R. CHAN, R. OROZCO, G. BELLUSA, P.
7 HUPPERT, J. SCOTT, J. KURZROCK, M. MACK, J. KELLY, OFFICER, SOUZA, J. MUSCHI, S.
8 JOHNSON, OFFICER KARSABOOM, SGT. G. TOLLESON, SGT. D. CAMPBELL, OFF. R.
9 MOORE, OFF. A. STEINBERGER, OFF. F. UU, OFF. B. WORDEN, OFF. J. FUKADA, OFF. J.
10 DOOLITTLE, OFF. C. SAUNDERS, OFF. E. ROMANS and OFF. C. DELROSARIO, through their
11 designated counsel that the above-captioned action entitled Local 10, International Longshore and 12 Warehouse Union, et al., vs. City of Oakland, et al, and numbered C 03-2962 TEH (JL), be and
hereby is dismissed with prejudice pursuant to FRCP 41(a)(1), as to all of the claims of all named 13
plaintiffs as to all claims including attorneys fees related to the declaratory and injunctive relief 14
causes of action, pursuant to the settlement agreement entered into between the parties. 15
The parties hereto acknowledge that, pursuant to the Stipulation and Order Approving Partial 16
Settlement of Plaintiffs’ Claims For Injunctive Relief, signed by the Court on December 24, 2004 and 17
entered on the docket on December 28, 2004, (hereinafter, Injunctive Relief Stipulation and Order) 18
the Court retains jurisdiction of this matter after these claims are dismissed to enforce the terms of the 19
Injunctive Relief Stipulation and Order, to resolve any disputes that may arise between the parties 20
concerning the matters set forth in the Injunctive Relief Stipulation and Order. The parties further 21
acknowledge that pursuant to the Injunctive Relief Stipulation and Order, this Court retains 22 jurisdiction for three (3) years from the date of filing of the Injunctive Relief Stipulation and Order 23 (through December 27, 2007) with the proviso that within that three year time period any party may 24 move the court to extend the time for up to an additional 24 months if there is a material breach of the
25 terms of the Injunctive Relief Stipulation and Order.
26 //
27 //
28 //

3

STIPULATION AND (PROPOSED) ORDER DISMISSING ENTIRE ACTION OF ALL PLAINTIFFS AND ALL COUNSEL WITH PREJUDICE Case No. C-03-2962 TEH (JL)

Case3:03-cv-02962-TEH Document279 Filed07/31/06 Page4 of 4

1 SO STIPULATED.

2

3 Dated: June 14, 2006 4 5 6 7

/s/ JAMES B. CHANIN Attorney for Plaintiffs in Local 10, et al. On behalf of himself, all of his co-counsel and all plaintiffs in the Local 10 action

8

9 Dated: June 15, 2006 10 11

/s/ GREGORY M. FOX Attorney for Defendants City of Oakland et al.

12

I hereby attest that I have on file all holograph signatures for any signatures indicated by a

13 “conformed” signature (/s/) within this E-filed document.

14 Dated: July 27, 2006 15

/s/ GREGORY M. FOX

16

ORDER

17

18

Having reviewed the stipulation of the parties, and good cause appearing therefore

19

THIS COURT ORDERS THAT the entire action by all named plaintiffs against the above

20 named defendants shall be and hereby is dismissed with prejudice pursuant to the parties’ stipulation
21 and subject to this Court’s retention of jurisdiction as outlined above.
22

UNITED S ALIFORNIA

OURT NORTH

23

BY STIPULATION OF THE PARTIES, IT IS SO ORDERED.

24
25 _______0_7_/2_7_/_0_6_____
26 DATE

TATES DISTRICT C
______________________________________ THELTON E. HENDERSON

27

UNITED STATES DISTRICT JUDGE

28

Judge Thelton E. Henderson

STIPULATION

AND

(PROPOSED)

OERRDENR

4
DDISIMSISTSRINGCIaCEseNTNTIoRO. ECFA-0CC3T-2I9O6N2

OF ALL PLAINTIFFS TEH (JL)

AND

ALL

COUNSEL

WITH

PREJUDICE

-

 
 Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page1 of 32

1 Gregory M. Fox, State Bar No. 070876 Arlene C. Helfrich, State Bar No. 096461
2 Nancy A, Huneke, State Bar No. 114973 BERTRAND, FOX & ELLIOT
3 The Waterfront Building 2749 Hyde Street
4 San Francisco, California 94109 Telephone: (415) 353-0999
5 Facsimile: (415) 353-0990

6 John A. Russo, State Bar No. 129729 Oakland City Attorney
7 Randolph W. Hall, State Bar No. 080142 Chief Asst. City Attorney
8 Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor
9 Oakland CA 94612 Telephone: (510) 238-3601
10 Facsimile: (510) 238-6500

11 Attorneys for Defendants CITY OF OAKLAND and POLICE CHIEF RICHARD WORD
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

16 LOCAL 10, INTERNATIONAL LONGSHORE ) File No. C -03-2962 TEH (JL)

AND WAREHOUSE UNION, et al., 17

) ) DEFENDANTS’ MOTION FOR SUMMARY

18

Plaintiffs, vs.

) JUDGMENT OR, IN THE ALTERNATIVE, ) SUMMARY ADJUDICATION AGAINST

19 CITY OF OAKLAND; et al.,
20
Defendants. 21

) INDIVIDUAL PLAINTIFFS
)
) Date: December 5, 2005
) Time: 10:00 a.m. ) Location: Courtroom 12, 19th Floor

22

Hon. Thelton E. Henderson 23

24

25

26

27

28

__________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page2 of 32

1

TABLE OF CONTENTS

2 NOTICE OF MOTION FOR SUMMARY JUDGMENT......................................................................1

3 MEMORANDUM OF POINTS AND AUTHORITIES........................................................................1

4

I. STATEMENT OF ISSUES............................................................................................1

5
II. FACTS..................................... ......................................................................................2 6

7

A. OPD Adoption of the Mobile Field Force Concept and Less Lethal Impact Weapons, Prior Experience with Less Lethal.........................................2

8 B. OPD Plans for the Protest...................................................................................4
9
C. Conduct of the Longshoremen............................................................................6 10

11

Plaintiffs Who Were Struck by Less Lethal Projectiles..........................6

12

The Plaintiff Who Was Arrested.............................................................8

13

D. Defendants' Conduct...........................................................................................9

14

III. STANDARDS FOR SUMMARY JUDGMENT..........................................................11

15 IV. ARGUMENT................................................................................................................12
16

17

A. FIRST AMENDMENT: No Speech Rights Were Implicated and No Associational Rights Were Violated....................................................12

18

B. INFORMATIONAL PRIVACY: Plaintiffs' Informational

19

Privacy Rights (9th Cause of Action) Were not Violated..................................13

20

C. FOURTH AMENDMENT SEIZURE: The Longshoremen

21

Plaintiffs Were Not “Seized” Under the Fourth Amendment..........................14

22

D. QUALIFIED IMMUNITY: Defendants Are Entitled to Qualified

Immunity as the Law Was not Clearly Established that Less Lethal

23

Could not Be Used or that their use Constituted a Seizure, and

24

Defendants' Actions Were Objectively Reasonable..........................................16

25

1. The Defendants Who Did Not Fire or Authorize the Use of Less

Lethal Projectiles Are Entitled to Qualified Immunity.........................16

26

2. The Officers Who Fired Less Lethal at the East SSA Gate

27

and the Command Staff Are Entitled to Qualified Immunity as

28

the Law Was Not Clearly Established that the Use of Less Lethal

Was a Seizure or that Less Lethal Could Not Be Used for

i

__________________________________________________________________________________________________________________________

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY

ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page3 of 32

1

Crowd Control and Because the Conduct Was Objectively

Reasonable............................................................................................18 2

3

a. The Law Was Not Clearly Established that Fourth Amendment Reasonableness Standards Applied or that

4

Less Lethal Could Not Be Used for Crowd Control................19

5

b. The Officers' Conduct Was Objectively Reasonable................21

6

c. The Same Principles Apply to the Command Staff..................23

7

E. STATE LAW CLAIMS: The Individual Defendants Are Entitled to

8

Immunity Pursuant to California Government Code § 820.2...........................24

9 V. 10

CONCLUSION.........................................................................................................................25

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
ii __________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page4 of 32

1

TABLE OF AUTHORITIES

2 Cases
3 Act Up!/Portland v. Bagley
4 (1993) 988 F2d 868............................................................................................................................22
5 Anderson v. Liberty Lobby, Inc. 6 (1986) 477 U.S. 242...........................................................................................................................11

7 Backlund v. Barnhart (9th Cir. 1985) 778 F.2d 1386 ..........................................................................................................18
8

9

Boyd v. Benton County (9th Cir. 2004) 374 F.3d 773 ............................................................................................................21

10 Bray v. Alexandria Women's Health Clinic
11 (1993) 506 U.S. 263.....................................................................................................................20, 21

12 Celotex Corp. v. Catrett (1986) 477 U.S. 317...........................................................................................................................11
13

14

Chew v. Gates (9th Cir. 1994) 27 F.3d 1432 ............................................................................................................23

15 Chuman v. Wright
16 (9th Cir. 1996) 76 F.3d 292 ..............................................................................................................17

17 Clark v. Community for Creative Non-Violence

18

(1984) 468 U.S. 288.........................................................................................................................12

19 Coming Up, Inc. v. City and County of San Francisco (N.D.Cal 1994) 857 F.Supp. 711 .......................................................................................................24
20 County of Sacramento v. Lewis
21 (1998) 523 U.S. 833..............................................................................................................15, 16, 21

22 Deorle v. Rutherford 23 (9th Cir. 2001) 272 F.3d 1272 ....................................................................................................19, 20
24 Dodd v. City of Norwich (2d Cir. 1987) 827 F.2d 1 ..................................................................................................................23
25 Edson v. City of Anaheim
26 (1998) 63 Cal.App.4th 1269 .............................................................................................................24
27 Eisenberg v. Insurance Co. of North America 28 (9th Cir. 1987) 815 F.2d 1285 ...........................................................................................................12

iii __________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page5 of 32

1 Forrester v. City of San Diego (9th Cir. 1994) 25 F.3d 804 ........................................................................................................20, 21
2

3

Gates v. Superior Court (1995) 32 Cal.App.4th 481 ................................................................................................................25

4 Gibson v. United States
5 (9th Cir. 1986) 781 F.2d 1334 ..........................................................................................................12

6 Graham v. Conner (1989) 490 U.S. 386..........................................................................................................................19
7

8

Greminger v. Seaborne (8th Cir. 1978) 584 F.2d 275 ............................................................................................................13

9 Grossman v. City of Portland
10 (9th Cir. 1994) 33 F.3d 1200 ............................................................................................................23

11 Hill v. National Collegiate Athletic Assn. 12 (1994) 7 Cal.4th 1 ..............................................................................................................................13
13 In re Wagner (1981) 119 Cal.App.3d 90 .................................................................................................................13
14 Ingraham v. Wright
15 (1977) 430 U.S. 651...........................................................................................................................15

16 Jackson v. Bank of Hawaii 17 (9th Cir. 1990) 902 F.2d 1385 ..........................................................................................................12
18 Jeffers v. Gomez (9th Cir. 2001) 267 F.3d 895 .............................................................................................................19
19 Johnson v. Duffy
20 (9th Cir. 1978) 588 F.2d 740 ............................................................................................................16
21 Knox v. Southwest Airlines 22 (9th Cir. 1997) 124 F.3d 1103 ..........................................................................................................22
23 Larez v. City of Los Angeles (9th Cir. 1991) 946 F.2d 630 ............................................................................................................24
24 Leer v. Murphy
25 (9th Cir. 1988) 844 F.2d 628 ................................................................................................16, 17, 18
26 Loder v. Municipal Court 27 (1976) 17 Cal.3d 859 ........................................................................................................................14

28 Malley v. Briggs (1986) 475 U.S. 335..........................................................................................................................22
iv __________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page6 of 32

1 Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334 ................................................................................................................24
2

3

Menotti v. City of Seattle (9th Cir. 2005) 409 F.3d 1113 ..........................................................................................................24

4 Monell v. Department of Social Services
5 (1978) 436 U.S. 658..........................................................................................................................16

6 Moreland v. Las Vegas Metro. Police Dept. (9th Cir. 1998) 159 F.3d 365 .............................................................................................................17
7

8

Palmer v. Sanderson (9th Cir. 1993) 9 F.3d 1433 ..............................................................................................................16

9 People v. Rivera
10 (1992) 8 Cal.App.4th 1000 ...............................................................................................................24

11 Pierson v. Ray 12 (1967) 386 U.S. 547..........................................................................................................................23
13 Romero v. Kitsap County (9th Cir. 1991) 931 F.2d 624 ............................................................................................................24
14 San Pedro Hotel Co. v. City of Los Angeles
15 (9th Cir. 1998) 159 F.3d 470 ............................................................................................................17

16 Saucier v. Katz 17 (2001) 533 U.S. 194, 201 (2001) .................................................................................................18, 22
18 Scott v. Henrich (9th Cir. 1992) 978 F.2d 481 .............................................................................................................11
19 Sloman v. Tadlock
20 (9th Cir. 1994) 21 F.3d 1462 .............................................................................................................12
21 Virginia v. Black 22 (2003) 538 U.A. 343 ..........................................................................................................................12
23 Wilson v. Layne (1999) 526 U.S. 603...........................................................................................................................19
24 Statutes
25 26 42 United States Code Section 1983.........................................................................................16, 24, 25
27 Civil Code Section 51 ...........................................................................................................................24
28 Federal Rule of Civil Procedure Section 56 .........................................................................................11
v __________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page7 of 32
1 Government Code Section 820.2 ................................................................................................1, 24, 25 2 Penal Code Section 370 ........................................................................................................................20 3 Penal Code Section 372 ........................................................................................................................20 4 Penal Code Section 407 ........................................................................................................................20 5
Penal Code Section 602(k)....................................................................................................................20 6
Penal Code Section 647c ......................................................................................................................20 7
Vehicle Code Section 21954.................................................................................................................20 8 9 Vehicle Code Section 21956.................................................................................................................20 10 Vehicle Code Section 2800...................................................................................................................20 11 Vehicle Code Section 40000.1..............................................................................................................20 12 Other Authorities 13 Judicial Council of California Civil Jury Instructions 1806 .................................................................14 14 Oakland Municipal Ordinance, Title XII, Article I, Section 12.44.010 ...............................................21 15 Oakland Municipal Ordinance, Title XII, Article I, Section 12.44.020 ...............................................21 16 17 18 19 20 21 22 23 24 25 26 27 28
vi __________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page8 of 32

1

NOTICE OF MOTION FOR SUMMARY JUDGMENT

2

PLEASE TAKE NOTICE THAT defendants will move the court at the time and place

3 specified above, for summary judgment or, in the alternative summary adjudication: 1) on the Local 4 10 individual1 plaintiffs' First Amendment claims (1st and 5th causes of action) and their informational 5 privacy claim (9th cause of action) in the Third Amended Complaint; 2) on the Local 10 6 longshoremen plaintiffs’ Fourth Amendment claims (2nd cause of action); and 3) on all claims

7 asserted by the longshoremen plaintiffs against the individual defendants on qualified immunity

8 grounds, except for the state and federal false arrest claims asserted by Mr. Heyman and the

9 excessive force claims made by Mr. Heyman against the officers involved in his arrest.

10

This motion is made upon the grounds that no material dispute exists as to the above claims,

11 and plaintiffs cannot establish one or more essential elements of said claims. This motion is also

12 made upon the grounds that the individual defendants are entitled to qualified immunity on the

13 federal claims and discretionary immunity pursuant to California Government Code § 820.2 on the

14 state law claims, and that no material factual dispute exists as to these issues.

15

This motion is based upon this notice of motion and motion, the declarations of Gregory M.

16 Fox, Deputy Chief Howard Jordan, Captain Rod Yee, Lieutenant Ed Tracey, Lt. Dave Kozicki,

17 Sergeant Gary Tolleson, Julia Kurzrock (Ret.) and Alexander Jason as well as the complete records

18 contained in the court’s file in this matter, and such further evidence, whether documentary or oral, as

19 may be presented at the time of the noticed hearing.

20

MEMORANDUM OF POINTS AND AUTHORITIES

21 I. STATEMENT OF ISSUES

22

Defendants move this Court for summary judgment on the following issues:

23

1. The First Amendment claims, based on the fact that the longshoremen were not at the Port

24 that day to engage in protest, and there is no evidence that they were targeted by OPD due to their

25

26 1

Of the original 53 plaintiffs in this action, all but eight have settled their claims. Of the eight remaining

27 plaintiffs, seven are individuals, and one – Local 10 – is an association. This motion is brought against the seven
individual plaintiffs, referred to herein in two distinct sets: plaintiff Jack Heyman, an ILWU business agent who was

28 arrested; and longshoremen plaintiffs Chapman, Clay, Evans, Kepo’o, Massey and Moore, all of whom allege being
struck with less lethal at the East SSA gate.
1

__________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION: LOCAL 10 PLAINTIFFS’ FIRST AMENDMENT CLAIMS

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page9 of 32

1 membership in the ILWU.

2

2. The informational privacy claim, because there is no evidence that OPD collected

3 intelligence on the plaintiffs in violation of their privacy rights.

4

3. The Fourth Amendment claims, based on the fact that there is no evidence plaintiffs were

5 arrested, subjected to an investigatory stop, or otherwise seized within the meaning of the Fourth

6 Amendment since they were hit by less lethal after refusing to disperse, and their freedom of

7 movement was not restricted.

8

4. The claims against the individual defendants in their individual capacity, based on

9 defendants' entitlement to qualified immunity, given that the use of less lethal projectiles did not

10 violate plaintiffs' constitutional rights, there was no clearly established law that less lethal projectiles

11 could not be used for crowd control or that to do so constituted a seizure, and the officers' conduct

12 was objectively reasonable.

13 II. FACTS

14 A. 15

OPD Adoption of the Mobile Field Force Concept and Less Lethal Impact Weapons, Prior Experience with Less Lethal

16

In 2000 and thereafter OPD confronted a growing and violent urban phenomenon known as

17 “sideshows” and a new era of street demonstrations protesting the federal government’s foreign and

18 economic policies. Responding to these trends, OPD began revising its crowd control policies and

19 training. OPD consulted with police departments in Seattle and San Diego, among others, regarding

20 the new concept of a “Mobile Field Force” (“MFF”), a rapid, organized and disciplined crowd event

21 response using motorized mobile response teams. MFF had the flexibility to control or disperse

22 unruly crowds and/or apprehend multiple offenders simultaneously. Each MFF team is commanded

23 by a lieutenant, comprised 30-40 officers and an appropriate number of sergeants. A team included

24 officers working in skirmish lines equipped with batons to disperse crowds and separate arrest 25 teams.2

26

But traditional skirmish line baton dispersal tactics had disadvantages. Officers had to close

27 the distance until they were physically confronting demonstrators. Hand to hand pushing and jabbing

28

2

Declaration of Gary Tolleson.

2

__________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION: LOCAL 10 PLAINTIFFS’ FIRST AMENDMENT CLAIMS

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page10 of 32

1 with batons resulted in physical confrontations over the batons and occasional police misuse of the

2 baton during the “heat of battle.” Prolonged pushing with batons also physically tired officers,

3 further increasing the risk of injury to officers or demonstrators. OPD was therefore interested in

4 new impact weapon technology for dispersal that also had the advantage of creating distance between 5 officers and protesters thereby minimizing the above problems.3

6

OPD had been successfully using specially trained SWAT team members equipped with less

7 lethal impact weapons, primarily 12-gauge and .37 mm “bean bags” and wooden dowels to handle

8 high risk entries and barricaded subject incidents. OPD also had used trained patrol officers

9 deploying 12-gauge “bean bags” to manage mentally disturbed persons in crisis, allowing officer to

10 stay at some distance from dangerous or threatening persons. OPD classified less lethal munitions as

11 impact weapons similar to batons with similar rules of engagement and the same prohibited strike

12 areas. Like batons, less lethal munitions presented a serious risk of injury or even death if misapplied

13 by the officer. But when correctly applied less lethal was believed to present the same lower level

14 risk of minor injuries comparable to batons. Thus, OPD’s K-3 Use of Force Policy specifically

15 included “bean-bags” as an impact weapon and allowed for its use in crowd control situations as an

16 option to traditional baton dispersal techniques. Giving officers “stand off distance” or creating

17 “standoff distance” allowed officers time to react to threats, multiple persons resistance, surprise

18 advanced fighting skills by suspects, weapons and offensive materials, such as bags of urine/blood, 19 etc. concealed by suspects.4

20

The manufacturers of less lethal impact weapons had also recommended to OPD that these

21 were appropriate for managing or dispersing crowds. The manufacturers stated that drag stabilized

22 12-gauge bean-bags, .37 mm wood dowels and stinger (rubber pellets) grenades would result in 23 minimal physical injuries when discharged at distances recommended by the manufacturer.5

24

The California Commission on Peace Officer Standards and Training ("POST") also

25 recommended less lethal munitions as a use of force option during crowd events in its March 2003

26 Crowd Management and Civil Disobedience Guidelines. POST defined less lethal as “[S]pecialty

27

28 3

Ibid.

4

Ibid.

3

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1 impact ammunitions, hand-delivered or propelled from launching devices, designed to immobilize,

2 incapacitate or stun a human being, citing Penal Code section 12601[c].” In addition to POST

3 recommendations and manufacturer recommendations for the use of less lethal munitions for crowd

4 control, the Contra Costa County and Alameda County Sheriff’s offices have adapted the Mobile

5 Field Force concept, using various types of “less lethal” equipment such as “12 gauge bean bags”, 6 OC spray, “pepper balls,” Tasers and in one case, dogs.6

7

OPD created written planning guides for training officers on the evolving MFF concept.

8 Extensive training was provided in 2002 and early 2003 on MFF tactics including the use of less

9 lethal impact weapons to disperse crowds. Only specially trained tactical officers were allowed to

10 use less lethal impact weapons and they were to be organized into small groups (“tango teams”)

11 under the direct supervision of a sergeant. The decision on when to use less lethal for dispersal 12 purposes was delegated to the chief of police or his assigned incident commander.7

13

In 2003 OPD utilized the MFF and less lethal munitions extensively to manage and disperse

14 crowds following the Oakland Raiders AFC championship game and the Super Bowl Game in

15 January 2003. Crowd sizes ranged from 300-1,000 persons and problems included blockage of

16 streets and sidewalks, firebombing of vehicles, and looting of commercial stores and attacks on the

17 police and firefighters. Although OPD was criticized for not being more aggressive in its tactics, the

18 department concluded that the MFF system and use of less lethal impact weapons were both

19 reasonable and effective crowd control and dispersal tactics. The ability of officers to “standoff“ 20 while dispersing crowds with less lethal impact weapons further enhanced officer safety.8

21 B. 22

OPD Plans for the Protest The protestors did not apply for a permit9 prior to the demonstration and did not meet with

23 OPD to establish liaisons and identify potential problems that might arise, particularly in light of the

24

25 5

bid.; Exhibit 1 to Tolleson Decl., Defense Technology product information and specifications.

6
26 7

Ibid; Exhibit 2 to Tolleson Decl., POST Crowd Management and Civil Disobedience Guidelines. Tolleson Decl.

8
27 9

Ibid. Oakland Municipal Ordinances ("OMO") established free speech zones in the vicinity of City Hall and the

28 federal courts. OMO, Article I, § 12.44.020(1), § 12.44.020(2). People may take advantage of these free speech zones
without obtaining a permit as long as they comply with City traffic ordinances. Ibid. Persons who wish to "parade" in a manner that may obstruct the normal flow of pedestrian or vehicle traffic or otherwise violate traffic laws, must 4

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1 fact that there were no public sidewalks, public parks, or other open public space in the immediate

2 area suitable for a legal demonstration. Thus, the protestors could only congregate on private

3 property leased by the shipping lines, APL and SSA, or on the only public roadway accessing the

4 Port, Middle Harbor Road. By locating the "picket lines" directly in front of the APL and SSA Main

5 Gates, and/or on the public roadway, the demonstrators would stop all truck and other vehicular

6 traffic from circulating through the Port. Blockading the Main Gates and the single public roadway

7 accessing the Port would cause Port truck traffic to back up and potentially gridlock the Bay Bridge

8 approaches and freeway system, presenting a clear and present danger to the Bay Bridge 9 transportation system and a serious public safety hazard.10 Accordingly, the OPD developed an

10 Operations Plan that anticipated the potential safety hazard by designating a specific protest area

11 while ensuring continued truck traffic circulation through the rest of the Port. The protestors foiled

12 this plan, however, by arriving at the Port before dawn to block all the Port Main Gates before OPD 13 arrived, and bringing truck and vehicle traffic coming into the Port to a virtual standstill.11

14

The Operations Plan provided that officers were not authorized to use less lethal munitions

15 except upon approval of the Incident Commander unless immediately threatened.12 General Order K-

16 3, which approved the use of bean bags for crowd dispersal, also provided that bean bags could only

17 be used "under the immediate direction of a supervisor or command office. The only OPD officers

18 who were authorized to deploy less lethal munitions at the Port were members of the Red and Blue 19 Tango Teams.13 Prohibited strike areas were the same for bean bags as for hand-held impact

20 weapons: the head, neck, throat, left armpit, groin, spine and kidneys. Permissible strike areas

21

22

23 obtain a permit from the Chief of Police. OMO Art. II, §§ 12.44.060, 12.44.080. The Chief of Police must approve a

parade permit unless certain specified grounds for denial of the permit are present. OMO Art. II, §§ 12.44.130,

24 12.44.040. The permit process requires the applicant to provide information regarding the expected size of the crowd,
the route, the hours, parking plans, etc., so that the City can plan for and facilitate orderly demonstrations that do not

25 jeopardize public safety or otherwise unduly interfere with the rights of nonparticipants to conduct business. OMO
Art, II, § 12.44.110.

10
26

The California Highway Patrol has reported that an average of 8,000 heavy trucks travel in and out of the Port

each day with peak traffic occurring between 7:00 a.m. and 10:00 a.m., the time selected for the "picket lines." The

27 heaviest traffic day is Monday, which was also the day of the week for the planned April 7th demonstration. Declaration
of David Kozicki.

11
28 12

Ibid. and Operations Plan, Exhibit 1 to Kozicki Decl. Kozicki Decl., Ex. 1, Bates-stamped page 69.

13

Tolleson Decl., Ex. 3, Bates-stamped pages 677-678, 3111

5

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1 included the buttocks, thighs, shoulder, upper arms, elbows, lower arms, lower abdomen, knees, 2 lower legs, wrists, hands, ankles, feet and center mass.14

3 C. Conduct of the Longshoremen

4

Plaintiffs Who Were Struck by Less Lethal Projectiles

5

On the morning of April 7, 2003, a number of longshoremen arrived at the Port of Oakland to

6 report to work and found Port entry gates blocked by anti-war demonstrators.15 The Longshoremen

7 were dressed for work in sweat shirts, tee shirts and jeans. They did not wear clothing that identified 8 them as members of Local 10.16 There is no allegation that these plaintiffs were seeking to exercise

9 their First Amendment rights to protest the war at the time they were subjected to police dispersal

10 techniques.

11

Pursuant to the Local 10 union contract, the longshoremen do not cross a picket line until a

12 labor arbitrator arrives to decide whether Local 10 members should honor the picket. In light of the

13 anti-war picketers at the job site, the longshoremen ‘stood by,’ awaiting an arbitrator and further 14 instructions from union officials.17 While some non-plaintiff longshoremen ‘stood by’ at different 15 locations at the Port,18 plaintiffs Chapman, Clay, Evans, Kepo'o, Massey and Moore, Sr., (when

16 capitalized, "the Longshoremen" refers to longshoremen plaintiffs) gathered in the middle of Middle 17 Harbor Road, outside the East SSA gate.19 Several of them had parked their cars in the east-bound

18 center turn lane of Middle Harbor Road, and as additional longshoremen arrived at the Port, they

19 gathered near these vehicles and ‘stood by’, waiting to receive further instructions about attending 20 work.20 Protestors circled in a picket line at the East SSA gate, immediately to the south of the area

21

22

23 14

Tolleson Decl., Ex. 3, Bates-stamped pp. 2736-2737. See also p. 677.

24 15

Massey Dep., 65:11–66:25 (Ex. A); Clay Dep., 25:3-21; 29:3-23 (Ex. B) Exhibit letters refer to the Exhibits attached to the Fox Declaration in Support of this motion, wherein the deposition transcripts are authenticated).

16
25

Chapman Dep., 62:8–63:11 (Ex. E); Clay Dep., 43:2-21 (Ex. B); Kepo'o Dep., 82:10-15, 95:11–96:9, 119:7-19 (Ex. D); Massey Dep., 63:19–65:1, 100:21–101:10 (Ex. A); Evans Dep., 67:14-69:4 (Ex. G); Moore Dep., 61:14-

26 17

25 (Ex. H). TAC ¶ 34; Clay Dep., 17:9–18:8 (Ex. B); Massey Dep., 67:7–68:24 (Ex. A); Moore Dep., 39:21-40:5 (Ex. H).

18
27 19

Heyman Dep., 96:6-23 (Ex. C); Kepo'o Dep., 103:7–104:13 (Ex. D); Massey Dep., 80:21–81:23 (Ex. A) Chapman Dep., 21:7–23:7 (Ex. E); Clay Dep., 32:11-16; 34:8-14 (Ex. B); Kepo'o Dep., 105:18–106:19, 115:20–

28

116:13 (Ex. D); Massey Dep., 65:2-5 (Ex. A); Moore Dep., 38:7–39:4 (Ex. H).

20

Massey Dep., 69:17–71:6 (Ex. A); Chapman Dep., 22:13-23:9 (Ex. E); Kepo’o Dep., 106:11 – 108:20, (Ex. D);

Moore Dep., 39:21-40:5 (Ex. H).

6

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1 on Middle Harbor Road where the Longshoremen stood waiting.21

2

After ‘standing by’ at that location for more than thirty minutes, Plaintiffs observed another

3 group of demonstrators approaching their location, moving west on Middle Harbor Road from the 4 direction of the West APL gate. 22 Plaintiff Massey, who also works as a corrections officer for the 5 California Department of Corrections23, testified that he observed an OPD skirmish line forming 6 behind the crowd, and then moving the crowd toward where the Longshoremen were located.24

7 Plaintiff Kepo'o testified that this large crowd of protestors eventually reached them, were “milling”

8 in the area where the Longshoremen were standing, and that while the police line was still some

9 distance from the protestors and Longshoremen, he heard the police announce that the protestors 10 should disperse.25 After the crowd of protestors moved to the location of the Longshoremen, a

11 skirmish line of OPD motorcycles arrived and stood across the street from the Longshoremen's 12 position.26 Several of the Longshoremen heard a dispersal order given, but since they were not

13 involved in the protest, they believed the order should not apply to them. Accordingly, they did not 14 disperse when police approached.27 After the Longshoremen were struck with less lethal projectiles,

15 as described infra, the police skirmish line passed them by, and the Longshoremen went about their

16 business, by checking in with their co-workers, reporting to work, going home and/or seeking 17 medical help.28

18

Defendants are not aware of any facts which support the allegation that OPD gathered

19 intelligence about Local 10’s anti-war and associational activities in an "overbroad, unnecessary and

20 unjustified" manner prior to the demonstration. OPD’s Port protest Incident Commander, Captain

21 Rod Yee, testified that he was not aware that OPD engaged in any gathering of intelligence or

22

23 21 22

Kepo'o Dep., 105:18 -106:5, (Ex. D) Chapman Dep., 34:2-14, (Ex. E); Kepo'o Dep., 116:2–119:22; 143:17–144:17 (Ex. D); Massey Dep., 82:2 –

24 83:18, (Ex. A); Moore Dep., 41:15-23 (Ex. H).

23

Massey Dep., 12:2-13 (Ex. A)

25 24 25

Massey Dep., 76:4 – 78:16; 82:2 – 83:18, (Ex. A) Kepo'o Dep., 119:20-22; 143:17 – 145:8, (Ex. D); See also, Massey Dep., 82:2–83:18, (Ex. A); Jason Dec., Ex.

26

A; Fox Dec., ¶ 10.

26

Clay Dep.,34:8 – 38:21, (Ex. B);

27
27

Kepo’o Dep., 144:18-145:8, 146:19–147:14, (Ex. D); Massey Dep., 79:19–80:4, 83:19 -23, (Ex. A); Chapman

Dep., 39:11–23, 44:4-7, (Ex. E); Clay Dep., 37:1-12 (Ex. B);

28

7

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1 information about any activities of Local 10 or its members prior to the April 7, 2003 Port protest.

2 Capt. Yee did not instruct anyone at OPD to research or otherwise investigate Local 10, and he has 3 no information that anyone at OPD ever undertook such an investigation or research.29 To

4 defendants’ knowledge, discovery has not revealed any facts supportive of this allegation, and there

5 is no evidence that OPD gathered any evidence against any of the individual Longshoremen.

6

The Plaintiff Who Was Arrested

7

The remaining Longshoreman, Jack Heyman, was not struck with less lethal projectiles. On

8 the day of the demonstration, he was acting as a business agent for Local 10.30 Mr. Heyman arrived

9 early at the Port, introduced himself to Capt. Yee while at the East APL gate, observed that OPD

10 deployed less lethal munitions to disperse the protestors west of the West APL gate, and was advised 11 that longshoremen had been injured near the East SSA gate.31 After discussing the situation with

12 other union officials at the East SSA gate, Mr. Heyman began to drive his car through a number of

13 OPD Mobile Field Force vehicles and toward the back of the skirmish line assembled near the 14 intersection of Middle Harbor Road and Maritime Street.32

15

As Mr. Heyman’s vehicle approached the rear of the police motorcycle skirmish line, Sgt.

16 Julia Kurzrock, who was about one and one/half lanes away, instructed Mr. Heyman to stop his car.33

17 Mr. Heyman identified himself as a union official and indicated that he needed to get through the 18 police line, and he recalls Sgt. Kurzrock responding “I don’t care. Park your car.”34 Although there 19 is a factual dispute about whether Mr. Heyman complied with this order,35 Mr. Heyman testified that

20 during the entire time of his arrest, he did not recall any police officer make any reference to his

21 union membership, nor did any police officer use any derogatory language, epithets or obscenities to

22

23 28

Chapman Dep. 67:2-10; 69:2-16; 75:11-76:17; 84:4-13; (Ex. E); Clay Dep. 54:17 – 56:15; 67:5-18; 70:16 – 71:3;

(Ex. B); Evans Dep. 63:5 – 64:25; 69:5 – 71:1; 72:15-20; Kepo’o Dep. 165:2-24; 169:18 – 170:11; (Ex. D); Massey

24 Dep. 90:4 – 92:15; 93:22 – 94:23; 28:8 - 29:21; (Ex. A); Moore Dep. 76:4 – 78-9; 80:2-15; 87:9 – 88:4 (Ex. H)

29

Yee Decl., ¶ 2

25 30 31

Heyman Dep. 92:1-17; 95:17-23, (Exhibit C) Heyman Dep. 95:6 – 96:4; 112:21 – 114:16; 119:22 – 120:17, (Exhibit C)

26

32 33

Heyman Dep., 123:10–130:13 (Ex. C); Jason Dec., Ex. B, Fox Dec. ¶ 11. Heyman Dep., 130:14-17 (Ex. C); Kurzrock Dep., 38:17–40:25 (Ex. F).

34
27 35

Heyman Dep., 133:5–134:18 (Ex. C). See also, Kurzrock Dep., 38:17–41:22 (Ex. F). Sgt. Kurzrock testified that she repeatedly told Mr. Heyman to stop his car, and that he would be arrested if he

28 failed to do so, but he continued to drive slowly forward until she reached in and turned off his engine. She then arrested

8

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1 Mr. Heyman.36 Sgt. Kurzrock testified that her reason for arresting Mr. Heyman was because he

2 failed to follow Sgt. Kurzrock’s lawful order to stop his car, and that Mr. Heyman’s membership in 3 Local 10 did not play any role in her decision to arrest him.37

4 D. Defendants' Conduct

5

None of the 37 named OPD defendants is specifically linked in the complaint with the injury

6 incurred by any plaintiff. Chief Word was not present at the Port that day. Deputy Chief Haw and

7 Capt. Yee were the two highest-ranking command officers at the scene, Capt. Yee being the on-scene

8 Incident Commander. Lieutenant Poulson was the East Sector Commander, Lt. Jordan was the West

9 Sector Commander and Lt. Kozicki was the Mobile Field Force Commander. Sgt. Tracey was in 10 charge of the Red Tango Team, and Sgt. Tolleson was in charge of the Blue Tango Team.38 The two

11 Tango Teams were comprised of the following defendants: Red Tango Team: Lt. (then Sgt.) Ed

12 Tracey, Oerlemans, Delrosario, Gonzales, Holmgren, Gutierrez, Romans and Knight. Blue Tango

13 Team: Sgt. Gary Tolleson, Campbell, Moore, Doolittle, Steinberger, Uu, Worden, Saunders and 14 Fukuda. 39

15

Capt. Yee observed that a crowd was blocking the entrance to the East SSA Gate and blocking

16 traffic on Middle Harbor Road in front of the Gate. (The site of the Gate and street in front of the

17 Gate are collectively referred to as the East SSA Gate.) He gave two dispersal orders, approximately

18 two minutes apart, from the public address system of an OPD vehicle. The Longshoremen were

19 among the crowd assembled in the roadway outside the East SSA gate, but Capt. Yee was not aware

20 they were longshoremen as he observed nothing that would have identified them as such. Nor did Lt. 21 Tracey recognize any of the people congregated at the East SSA Gate as longshoremen.40

22

Prior to the decision to deploy less lethal at the East SSA Gate, the police had encountered a

23 group of protestors blocking the West APL Gate when they first arrived at that location. Truck traffic

24 was backing up, and when officers attempted to move the protestors with direct physical force, they

25

26 him. Kurzrock Dep., 42:22- 48:13, 58:7–59:18 (Ex. F). Mr. Heyman testified that he stopped his vehicle when instructed

to do so. Heyman Dep., 134:19-35:19 (Ex. C).

27 36 37

Heyman Dep., 147:12-24 (Ex. C). Kurzrock Decl., ¶ 3.

28 38

Declaration of Rod Yee.

39

Tolleson Decl.; Declaration of Tracey.

9

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1 were kicked, pushed and hit with protest signs. The contingent of officers had to physically push and

2 jab protestors with batons just to get a single truck through the West APL Gate. The officers had to

3 withdraw and wait for additional officers to arrive. In the meantime, the crowd increased

4 dramatically as hundreds of additional demonstrators arrived, and truck and vehicle traffic coming 5 into the Port was brought to a virtual standstill.41 After additional officers arrived, less lethal

6 munitions had been briefly deployed just west of the West APL gate, and that tactic had successfully 7 dispersed demonstrators who remained non-responsive to alternative dispersal tactics.42

8

After two dispersal orders and the approach of the police skirmish line failed to disperse the

9 crowd assembled at the East SSA gate, Capt. Yee authorized the Red Tango Team to use less lethal

10 munitions to attempt to disperse the crowd. The Tango Team officers were instructed to target only 11 aggressive or non-compliant protestors.43 Plaintiff Moore testified that if he had been standing to the

12 side with another group of longshoremen, rather than in the middle of the street, he probably would 13 not have been shot.44 Several Longshoremen testified that they did not know if they had been 14 targeted by OPD due to their affiliation with Local 10.45 Mr. Clay testified that an OPD officer he

15 spoke with after being fired upon expressed surprise and regret when informed that OPD had fired 16 upon longshoremen.46 Mr. Massey testified that he had observed OPD assisting another group of 17 longshoremen to enter the Port once protestors had been cleared from the East SSA gate.47

18

Only the Red Tango Team was present at the East SSA Gate when less lethal was deployed

19 there. No Blue Tango Team member used any less lethal munitions at the East SSA Gate. No

20 wooden dowels were fired at the East SSA Gate; rather bean bags were fired and stinger grenades 21 were tossed. 48 Plaintiff Kepo'o was struck in the hand, Chapman was struck in the back, thigh and

22 side, Clay was struck on the hamstring and back of his shoulder, Evans was struck in the back,

23

24

40
25 41

Yee Decl.; Tracey Decl. Kozicki Decl.

42
26 43

Yee Decl. Yee Decl.; Tracey Decl.

44
27 45

Moore Dep. ¶ 39:10-20 Clay Dep., 55:12-23, (Ex. B); Massey Dep., 91:9–92:13 (Ex. A)

46
28 47

Clay Dep., 59:3–60:19 (Ex. B) Massey Dep. 80:21 – 81:23, (Ex. A)

48

Yee Decl.; Tolleson Decl.; Tracey Dec.

10

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1 Massey was hit in the back and buttocks and Moore, Sr. was hit in the back of his shoulder. (TAC,

2 ¶¶ 51-52 55, 57-58.)

3

Red Tango Team member Romans never fired less lethal projectiles at any location, and

4 Officer Knight fired projectiles only at the intersection of 7th and Maritime.49 Sgt. Hogenmiller was

5 stationed at the command post located in the railway yard across from the East APL Gate on April 7, 6 2003, and had nothing to do with ordering the use of less lethal munitions.50 Other than the Red

7 Tango Team officers who deployed less lethal at the East SSA Gate (Tracey, Oerlemans, Gutierrez,

8 Gonzalez, Holmgren and Delrosario), no other defendant was involved in the use of any force against

9 plaintiffs, except for the officers who arrested Jack Heyman (Kurzrock and Mack).

10 III. STANDARDS FOR SUMMARY JUDGMENT

11

Summary judgment is proper where the evidence shows that there is no genuine issue as to

12 any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc.

13 56. The moving party's burden under Rule 56 is met simply by "`showing' -- i.e., pointing out to the

14 District Court -- that there is an absence of evidence to support the nonmoving party's case." Celotex

15 Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party shows the absence of a genuine

16 dispute of material fact, the burden shifts to the nonmoving party to produce evidence which would

17 support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986).

18 To meet this burden, the nonmovant cannot rely on the pleadings but must show by affidavits,

19 depositions, answers to interrogatories or by admissions that a genuine issue of material fact exists.

20 Celotex, supra, 477 U.S. at 324. The nonmoving party's failure of proof on an essential element of its

21 claim renders all other facts immaterial. Id. at 322-323.

22

While facts and inferences must be construed in favor of the nonmoving party, the record

23 must be sufficient for the fact-finder to conclude the inference offered by the nonmovant is more

24 likely than not true. A scintilla of evidence will not suffice. Scott v. Henrich, 978 F.2d 481, 484 (9th

25 Cir. 1992). The more implausible the claim or defense asserted by the nonmoving party, the more

26 persuasive its evidence must be to avoid summary judgment. Jackson v. Bank of Hawaii, 902 F.2d

27

28 49

Tracey Decl.

50

Tracey Decl.; Tolleson Decl.; Yee Decl.

11

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1 1385, 1389 (9th Cir. 1990). If any evidence produced against a defendants' motion is "merely

2 colorable" or "not significantly probative," the motion must be granted. Id. at 249; Eisenberg v.

3 Insurance Co. of North America, 815 F.2d 1285, 1288 (9th Cir. 1987).

4 IV. ARGUMENT

5 A. 6

FIRST AMENDMENT: No Speech Rights Were Implicated and No Associational Rights Were Violated

7

The First Amendment provides protection of both actual speech and expressive conduct.

8 Virginia v. Black , 538 U.A. 343, 358 (2003). Persons who partake in a demonstration to protest the

9 actions of the government are exercising the First Amendment rights and are clearly entitled to

10 protection from police activities designed to interfere with such expression. Gibson v. United States, 11 781 F.2d 1334 (9th Cir. 1986); Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994). Nonetheless, 12 observing a protest (as opposed to participating in the protest) is not inherently expressive51. As

13 stated by the Supreme Court in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.

14 5 (1984):

15

Although it is common to place the burden upon the Government to justify impingements on First Amendment interests, it is the obligation of the person desiring

16

to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is

17

presumptively expressive. In the absence of a showing that such a rule is necessary to protect vital First Amendment interests, we decline to deviate from the general rule

18

that one seeking relief bears the burden of demonstrating that he is entitled to it.

19 Neither the Longshoremen's complaint nor the facts show that these plaintiffs were involved in

20 speech or other expressive activity ordinarily protected by the free expression provision of the First

21 Amendment. They were simply "standing by" waiting to see whether the arbitrator would tell them

22 to go to work that day or honor the demonstrators' picket line. Their own testimony that they

23 believed the dispersal order did not apply to them since they were not involved in the protest makes

24 this abundantly clear.

25

The only First Amendment right implicated by the TAC is the claim that OPD targeted

26 plaintiffs because of their membership in the ILWU, but the facts do not support this claim. The

27

28 51

For informational purposes only, see, Russ v. Jordan, 1992 U.S. Dist. LEXIS 19484 [Opinion by the Honorable

Marilyn Hall Patel].

12

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1 undisputed facts show that when the longshoremen were struck by less lethal projectiles, the

2 demonstrators were milling about in the same area, the longshoremen were not dressed in a way that

3 would distinguish them from protesters, the police did not understand that they were longshoremen

4 rather than demonstrators and plaintiffs heard the dispersal orders but did not disperse.

5

If the evidence showed that OPD had targeted plaintiffs out of hostility toward the ILWU,

6 plaintiffs would have a valid freedom of association claim. See Greminger v. Seaborne, 584 F.2d 7 275, 278 (8th Cir. 1978) – freedom of association includes union membership. In this case, however,

8 there is no evidence that any defendant targeted any longshoreman plaintiff due to hostility toward

9 the ILWU. The incontrovertible evidence is that the longshoremen were targeted because they

10 appeared to the police to be protesters who were not dispersing. In construing California's unlawful

11 assembly law, California courts have made it clear that remaining at the scene of an unlawful

12 assembly makes one a guilty participant. In re Wagner, 119 Cal.App.3d 90, 103-104 (1981). It was

13 not up to the longshoremen to decide that the dispersal order they heard did not apply to them. It was

14 not a violation of their First Amendment right of freedom of association for the police to target them

15 since they appeared to be non-dispersing protestors.

16 B. 17

INFORMATIONAL PRIVACY: Plaintiffs' Informational Privacy Rights (9th Cause of Action) Were not Violated

18

Plaintiffs' Ninth Claim for Relief is described as a claim for violation of plaintiffs' "right to

19 informational privacy under article I, section 1 of the California Constitution." (TAC ¶ 124.)

20 Presumably, this count refers to allegations that OPD gathered intelligence on the union prior to the

21 demonstration. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35: interests

22 "precluding the dissemination or misuse of sensitive and confidential information [are referred to as]

23 'informational privacy'". “Whether a legally recognized privacy interest is present in a given case is a

24 question of law to be decided by the court.” Id. at 40.

25

There is no factual support for plaintiffs' informational privacy claim. OPD’s Port protest

26 Incident Commander, Captain Rod Yee, testified that he was not aware that OPD engaged in any

27 gathering of intelligence or information about any activities of Local 10 or its members prior to the

28 April 7, 2003 Port protest. Capt. Yee did not instruct anyone at OPD to research or otherwise

13

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1 investigate Local 10, and he has no information that anyone at OPD ever undertook such an

2 investigation or research.

3

To state a claim for a constitutional violation of privacy, plaintiffs must show that: (1) they

4 had a reasonable expectation of privacy, under the circumstances, in the information allegedly

5 obtained by OPD; (2) that defendants invaded their privacy in allegedly obtaining the information;

6 (3) that defendants' conduct was a serious invasion of their privacy; (4) that they were harmed; and

7 (5) that defendants' conduct was a substantial factor in causing them harm. Judicial Council of

8 California Civil Jury Instructions ("CACI") 1806.

9

Plaintiffs herein cannot show that defendants invaded their privacy even if OPD had obtained

10 an internal newsletter or email messages about union support for antiwar protests since they cannot

11 show they had a reasonable expectation of privacy in such information or that obtaining this

12 information was a serious invasion of privacy. Moreover, the governmental interests supporting the

13 challenged conduct must be weighed against the alleged intrusion of privacy. See, e.g., Loder v.

14 Municipal Court, 17 Cal.3d 859, 864-877 (1976). Although the OPD Incident Commander did not

15 instruct anyone to investigate Local 10 prior to the demonstration and not aware of any intelligence

16 gathering on the ILWU, it would not have been unreasonable for the OPD, in preparing for the

17 demonstration, to have ascertained whether they should anticipate that ILWU employees reporting to

18 work might swell the ranks of the demonstrators.

19 C. 20

FOURTH AMENDMENT SEIZURE: The Longshoremen Plaintiffs Were Not “Seized” Under the Fourth Amendment

21

The Fourth Amendment protects against unreasonable searches and seizures. The TAC

22 alleges that defendants fired upon the Longshoremen with less lethal projectiles without justification

23 or reasonable cause, (TAC ¶¶ 50 - 52, 55, 57, 58) and that these acts by defendants violated plaintiffs’

24 rights to be free from unreasonable seizures under the Fourth and Fourteenth Amendment. (TAC,

25 ¶110 – second cause of action). However, the undisputed facts show that the Longshoremen were not

26 seized. Prior to being hit by less lethal munitions, the longshoremen plaintiffs were prevented from

27 entering their workplace by protestor activity and by their own union contract which required them to

28 honor the picket line. Police did not control their movements in any way. These plaintiffs heard the

14

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1 police dispersal order and were free to move to other areas of the Port, but they did not disperse.

2 After being struck by projectiles, they identified themselves as longshoremen, and police passed them

3 by. These plaintiffs then reported to work, checked on their fellows and left the Port without further

4 contact with police. There is no evidence that police controlled their movements in any way, or that a

5 reasonable person in their position would have understood that they were not free to leave.

6

These facts do not constitute a seizure under the Fourth Amendment. Although force was

7 used by the police, not every claim of excessive force by government actors falls within the ambit of

8 the Fourth Amendment. Where no search and seizure is involved, the proper framework for

9 excessive force claims is under the Fourteenth Amendment’s substantive due process clause. County

10 of Sacramento v. Lewis, 523 U.S. 833 (1998). In Ingraham v. Wright, 430 U.S. 651, 674 (1977), the

11 Supreme Court addressed constitutional protections of personal security in the context of a due

12 process claim by students subjected to corporal punishment at school. The Court noted that:

13

The right of personal security is also protected by the Fourth Amendment, which was

made applicable to the States through the Fourteenth because its protection was viewed

14

as "implicit in 'the concept of ordered liberty'... enshrined in the history and the basic

15

constitutional documents of English-speaking peoples." [Citation] It has been said of the Fourth Amendment that its "overriding function... is to protect personal privacy and

16

dignity against unwarranted intrusion by the State." [Citation] But the principal concern

of that Amendment's prohibition against unreasonable searches and seizures is with

17

intrusions on privacy in the course of criminal investigations. [Citation].

18 Id. at 674, emphasis added. Because the use of force against students did not occur in the context of a

19 criminal investigation, the Supreme Court held that corporal punishment in schools does not fall

20 within the scope of the Fourth Amendment. Id.

21

Similarly, the longshoremen plaintiffs were not subjected to force in the context of a criminal

22 investigation. There is no evidence that police restricted the longshoremen plaintiffs’ freedom of

23 movement in any way, or otherwise exerted control so that the longshoremen felt they were not free

24 to leave. On the contrary, the facts demonstrate only that police sought to disperse the longshoremen

25 plaintiffs when they were perceived to be non-dispersing protestors. Once these plaintiffs were

26 identified as longshoremen, police made no further effort to disperse them, and they enjoyed

27 complete freedom of movement.

28

15

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1

Defendants are aware of this Court’s Order of April 27, 2005, denying defendants’ motion to

2 dismiss on this same Fourth Amendment issue. In that Order, this Court indicated that plaintiffs’

3 allegations that plaintiffs were left with only a single path to leave, and that defendants continued to

4 use force even after plaintiffs left the protest area, were sufficient to plead that defendants acted to

5 intentionally terminate plaintiffs’ freedom of movement so as to implicate the protections of the

6 Fourth Amendment. But these allegations are not supported by the facts as to the Longshoremen.

7 The Longshoremen who stood in the middle of Middle Harbor Road could have simply moved to the

8 side, or they could have moved to stand with the longshoremen waiting to the east of the East SSA 9 gate52, and thereby would not have been subjected to force. There is no indication that their freedom

10 of movement was terminated by defendants. Nor were they subjected to force once they were

11 identified as longshoremen. As there is no evidence that these plaintiffs were in any way ‘seized’,

12 their Fourth Amendment claim must fail.

13 D. 14 15 16

QUALIFIED IMMUNITY: Defendants Are Entitled to Qualified Immunity as the Law Was not Clearly Established that Less Lethal Could not Be Used or that their use Constituted a Seizure, and Defendants' Actions Were Objectively Reasonable
1. The Defendants Who Did Not Fire or Authorize the Use of Less Lethal Projectiles Are Entitled to Qualified Immunity

17

There is no respondeat superior or vicarious liability under 42 USC § 1983. Monell v.

18 Department of Social Services, 436 U.S. 658, 692 (1978); Palmer v. Sanderson, 9 F.3d 1433, 1437-

19 38 (9th Cir. 1993). A person deprives another of a constitutional right under § 1983 only if he "does

20 an affirmative act, participates in another's affirmative acts", or fails to perform a legally required

21 duty which "causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d

22 628, 633 (9th Cir. 1988), quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). The Supreme

23 Court has counseled the lower courts that before addressing immunity issues, they should first

24 “determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of

25 Sacramento v. Lewis, supra, 523 U.S. at 842, n. 5.

26

"The inquiry into causation must be individualized and focus on the duties and responsibilities

27 of each individual defendant whose acts or omissions are alleged to have caused a constitutional

28

16

52

Moore Dep. 39:10-20 (Ex. H); Massey Dep. 80:21 – 81:23 (Ex. A).

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1 deprivation." Leer v. Murphy, supra, 844 F.2d at 633. The § 1983 plaintiff cannot discharge his or

2 her obligation to prove the individual liability of each defendant by lumping all defendants together

3 and charging the “collective guilt” of all defendants as an undifferentiated group. See id. at 633-634.

4 Nor can a plaintiff state a § 1983 claim by asserting the rights of others. San Pedro Hotel Co. v. City

5 of Los Angeles, 159 F.3d 470, 479 (9th Cir. 1998); Moreland v. Las Vegas Metro. Police Dept., 159

6 F.3d 365, 369 (9th Cir. 1998). Thus, in order to prevail on their § 1983 cause of action, the plaintiffs

7 in the case at bar must prove both culpable conduct against each of them by each defendant, and that

8 each defendant’s wrongful conduct was the actual and proximate cause of the deprivation of their

9 constitutional rights. See Leer v. Murphy, supra, 844 F.2d at 634.

10

In Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996), the Ninth Circuit rejected a "team

11 effort" theory of liability under § 1983. In that case, approximately 60 officers from various law

12 enforcement agencies executed a valid search warrant on plaintiff's home, forcibly entering the

13 residence using a "flashbang" devices. The trial court held that officers who did not enter the home

14 or participate in the search were entitled to qualified immunity, and that ruling was not challenged on

15 appeal. Id. at 293. As to the remaining defendants, the trial court gave a "team effort" instruction,

16 which the Ninth Circuit subsequently held was improper. The Ninth Circuit required "integral

17 participation" by each officer as a predicate to liability, explaining that:

18

The underlying problem with a "team effort" theory is that it is an improper alternative

grounds [sic] for liability. It removes individual liability as the issue and allows a jury

19

to find a defendant liable on the ground that even if the defendant had no role in the

20

unlawful conduct, he would nonetheless be guilty if the conduct was the result of a

"team effort." … In essence, the "team effort" standard allows the jury to lump all the

21

defendants together, rather than require it to base each individual's liability on his own

conduct. Id. at 295. 22

23

Force was used against the Longshoremen only by the Red Tango Team, excluding Romans

24 and Knight, who did not use force at all at the East SSA Gate. Those defendants who did not use less

25 lethal at all against the Longshoremen and who were not involved in the decision to use less lethal at

26 the East SSA Gate cannot be considered integral participants in the action to disperse the

27 Longshoremen, and to hold them liable under these circumstances would be to adopt the disapproved

28 "team effort" standard. Accordingly, the members of the Blue Tango Team (Tolleson, Campbell,

Moore, Doolittle, Steinberger, Uu, Worden, Saunders and Fukuda), who were not present at the Ea1s7t

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1 SSA Gate when less lethal was used, are entitled to qualified immunity. Similarly, defendants

2 Randall, Chan Orozco, Belluso, Huppert, Scott, Kelly, Souza, Muschi, Johnson and Karsaboom, who

3 were not Tango Team members or commanding officers and never deployed less lethal force are

4 entitled to qualified immunity as are Red Tango Team members Romans and Knight, neither of

5 whom fired less lethal projectiles at the East SSA Gate. Finally, defendants Kurzrock and Mack were

6 not Tango Team members and, accordingly, did not use less lethal at all. They are implicated only in

7 the arrest of plaintiff Heyman and are entitled to qualified immunity as to all other plaintiffs.

8

2. The Officers Who Fired Less Lethal at the East SSA Gate and the Command

Staff Are Entitled to Qualified Immunity as the Law Was Not Clearly

9

Established that the Use of Less Lethal Was a Seizure or that Less Lethal Could

10

Not Be Used for Crowd Control and Because the Conduct Was Objectively

Reasonable

11
In determining whether a defendant is entitled to qualified immunity, the threshold question is 12
whether the evidence shows that the defendant committed an act that deprived the plaintiff of some 13
right, privilege, or immunity protected by the U.S. Constitution or the laws of the United States. Leer 14
v. Murphy, supra, 844 F.2d at 632-633. If so, the courts then ask whether the constitutional right 15
allegedly violated was "clearly established." If it was not, the defendant is immune. Saucier v. Katz, 16
533 U.S. 194, 201 (2001). The plaintiff bears the burden of showing "that the particular facts of his 17
case support a claim of clearly established right." Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th 18
Cir. 1985). 19
If the court decides that the defendant violated a clearly established right, it must then ask 20
whether a reasonable officer would have believed that his conduct was clearly unlawful. As to this 21
inquiry, the Supreme Court has held that "if the law did not put the officer on notice that his conduct 22
would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier, 23
supra, 533 U.S. at 202. In other words, an officer who makes a reasonable mistake as to what the law 24
requires under a given set of circumstances is entitled to the immunity defense. Id.at 205. "[T]o deny 25
summary judgment any time a material issue of fact remains on the excessive force claim -- could 26
undermine the goal of qualified immunity to 'avoid excessive disruption of government and permit 27
the resolution of many insubstantial claims on summary judgment.' [Citation]." Id. at 202. 28

18

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1

Here, under either the "shocks the conscience" standard that applies to excessive force cases

2 that do not involve a seizure (see above), or the Graham reasonableness standard (Graham v. Conner,

3 490 U.S. 386 (1989)), the evidence does not show that the use of bean bags to disperse the

4 Longshoremen, who heard and ignored a dispersal order, violated plaintiffs' constitutional rights.

5 Bean bags presented the same low-level risk of injury as batons when correctly applied, the

6 prohibited strike areas were the same and none of the Longshoremen were hit in a prohibited strike

7 area. The Ninth Circuit has recognized that bean bags constitute a lower level of force than deadly 8 force. Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Jeffers v. Gomez, 267 F.3d 895,

9 901. n.2 (9th Cir. 2001).

10

a. The Law Was Not Clearly Established that Fourth Amendment Reasonableness

Standards Applied or that Less Lethal Could Not Be Used for Crowd Control 11

12

Even if a triable issue of fact existed as to whether the use of bean bags could constitute a

13 constitutional violation under the circumstances, the law was not clearly established at the time.

14 "'Clearly established'" for purposes of qualified immunity means that the contours of the right must

15 be sufficiently clear that a reasonable official would understand that what he is doing violates that

16 right. This is not to say that an official action is protected by qualified immunity unless the very

17 action in question has previously been held unlawful, but it is to say that in the light of pre-existing

18 law the unlawfulness must be apparent." Wilson v. Layne, 526 U.S. 603, 614-615 (1999), internal

19 quotations and citation omitted.

20

As of April 7, 2003 (and to date) no court has held that the less lethal munitions used to

21 disperse the Longshoremen (bean bags and stinger grenades) could not be used for crowd control

22 purposes. Nor was there a consensus of cases of persuasive authority that made it clear that their use

23 was unlawful. Only one case had discussed the use of bean bags prior to April 2003, and that case

24 that did not involve the use of such weapons for crowd control. In that case, Deorle v. Rutherford, 25 272 F.3d 1272 (9th Cir. 2003), a deputy sheriff fired a less lethal beanbag round without any warning

26 into the face of an emotionally disturbed man who had not been violent, whose dress did not allow

27 him to secrete weapons on his body, who had generally obeyed all instructions given to him by

28 various peace officers and who was on his own property. Id. at 1275. Central to the Court's

19

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1 determination was an analysis of the governmental interests at stake, and the Court found that, under

2 these circumstances, the use of a beanbag round without warning against an unarmed, emotionally

3 disturbed, compliant man who posed no immediate threat to the officers or others was not a

4 reasonable use of force; hence, the officer was not entitled to qualified immunity. Id. at 1283-1284.

5 The diminished capacity of the plaintiff in Deorle was also a significant factor: "Where it is or

6 should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor

7 that must be considered in determining . . . the reasonableness of the force employed." Id., at 1283.

8

The balance has been struck quite differently in crowd control situations. In Forrester v. City

9 of San Diego, 25 F.3d 804 (9th Cir. 1994), San Diego police learned that Operation Rescue planned

10 to mount several anti-abortion demonstrations in the City. Aware that Operation Rescue tactics used

11 in other demonstrations included trespass on clinic property, physically blocking access to the clinic

12 and preventing patients, physicians and staff from entering the clinic, the Chief adopted a policy for

13 dispersing demonstrators through the use pain compliance, specifically the application of Nonchakus

14 (two sticks of wood, connected at one end, used to grip the wrist) or other pain compliance and

15 pressure point holds. The demonstrators arrested had various injuries, including bruises, a pinched

16 nerve, and a broken wrist. Id. at 806-807.

17

The Court upheld the jury's verdict in favor of defendants, stating:

18

the city clearly had a legitimate interest in quickly dispersing and removing

lawbreakers with the least risk of injury to police and others. The arrestees were part

19

of a group of more than 100 protesters operating in an organized and concerted effort

20

to invade private property, obstruct business, and hinder law enforcement. Although

many of these crimes were misdemeanors, the city's interest in preventing their

21

widespread occurrence was significant: 'The wholesale commission of common state-

law crimes creates dangers that are far from ordinary. Even in the context of political

22

protest, persistent, organized, premeditated lawlessness menaces in a unique way the

23

capacity of a State to maintain order and preserve the rights of its citizens.' [Quoting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 287 (1993) (Kennedy, J.,

24

concurring).] The city had a substantial interest in preventing the organized

lawlessness conducted by the plaintiffs in this case, and the police were also justifiably

25

concerned about the risk of injury to the medical staff, patients of the clinic, and other

protesters. Id. at 807. 26

27

Here, the demonstrators were engaged in an unlawful protest. See Penal Code §§ 407, 647c,

28 370, 372 and 602(k), Vehicle Code §§ 2800, 21954, 21956 and 40000.1 and Oakland Municipal
20

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1 Ordinances ("OMO") Title XII, Article I, §§12.44.020 and 12.44.010, which make it unlawful to take

2 part in public meetings on public streets, to obstruct the "free passage of any street or sidewalk" and

3 to fail to disperse or move when directed to do by a police officer." Notwithstanding the fact that the

4 protestors had not obtained the required permit, OPD intended to allow the protestors to block one

5 Main Gate and to secure the free passage of the other gates before the protestors could block them.

6 Protestors got there first, however, and invaded private property, obstructed business, and hindered

7 law enforcement efforts to get truck traffic moving. They had essentially shut down the Port,

8 threatening the Bay Bridge transportation system and creating a serious public safety hazard. As in

9 Alexandria Women's Health Clinic and Forrester, OPD was concerned about the risk of harm to

10 others and had a substantial interest in preserving the rights of other citizens to go about their

11 business in a safe manner. Further, earlier efforts to disperse the crowd through direct physical

12 contact and dispersal orders had been unsuccessful.

13

In addition, in crowd control circumstances, the law was not clearly established that the use of

14 force to disperse demonstrators constituted a seizure and, thus, was subject to the reasonableness

15 analysis of Graham, rather than the "shocks the conscience" standard of County of Sacramento v.

16 Lewis, as discussed above. The facts do not show that the decision to use bean bags constituted

17 deliberate indifference that would shock the conscience under Lewis standards. Even under the

18 Graham reasonableness analysis, the law did not put defendants on notice that the use of bean bags

19 for crowd control was clearly unlawful.

20

A review of cases dealing with less lethal munitions, even outside the crowd control context

21 shows there is no consensus of opinion regarding the application of qualified immunity. In Boyd v.

22 Benton County, 374 F.3d 773 (9th Cir. 2004), one of the officers executing a search warrant, tossed a

23 "flash-bang" device near the front door of a residence without looking. The device detonated,

24 injuring the plaintiff who was sleeping near the door. Id. at 777-778. The Court found that the use of

25 the device constituted excessive force because the officer knew that several people might be sleeping

26 in the residence. Id. at 779. Nonetheless, because plaintiff's right with respect to such devices was

27 not clearly established, the officers were entitled to qualified immunity. Id. at 782-784.

28

b. The Officers' Conduct Was Objectively Reasonable

21

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1

The Supreme Court has made it clear that the protection provided by the qualified immunity is

2 far-reaching. Saucier, supra, at 533 U.S. at 202. Qualified immunity protects “all but the plainly

3 incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

4 This test “allows ample room for reasonable error” by the defendant. Knox v. Southwest Airlines, 124

5 F.3d 1103, 1107 (9th Cir. 1997).

6

In Act Up!/Portland v. Bagley, (1993) 988 F2d 868, United States Marshals strip-searched

7 protesters who were arrested for refusing to leave a federal building. Both the trial and appellate

8 courts recognized that clearly established law prohibited the strip search of persons arrested for minor

9 offenses unless the officer performing the search had a reasonable suspicion that the arrestee was

10 concealing contraband. The Court of Appeal held, however, that the district court erred in denying

11 the marshals' motion for summary judgment based on qualified immunity because it failed to

12 consider "whether a reasonable officer in [the marshals'] position could have believed, in light of

13 clearly established principles, that his conduct was lawful." Id. at 873.

14

While material disputes about whether the facts and circumstances constituted reasonable

15 suspicion or what the officer or claimant did, may go to the jury, the "determination of whether those

16 facts support an objective belief that probable cause or reasonable suspicion existed is ordinarily a

17 question for the court. It is not in itself a factual issue that can preclude summary judgment." Ibid.

18 If a reasonable officer could have believed he was justified in strip searching the arrestees, under the

19 circumstances and law, he would be entitled to qualified immunity even if reasonable officers could

20 disagree on this issue. Id. at 872.

21

Here, OPD created written planning guides for training officers on the evolving MFF concept

22 and in 2002 and early 2003, it provided extensive training on the use of less lethal impact weapons to

23 disperse crowds and OPD's K-3 use of force policy specifically authorized the use of less lethal.

24 Only specially trained Tango Team officers were allowed to use less lethal under the direct

25 supervision of a sergeant. The decision on when to use less lethal for crowd dispersal purposes was

26 delegated to the chief of police or his assigned incident commander. On April 7, Red Tango Team

27 officers used less lethal dispersal techniques only upon the command of Capt. Yee, the Incident

28
22
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1 Commander. Under such circumstances, it must be concluded that it was reasonable for the officers

2 to believe their conduct was lawful.

3

In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), the Court held that officers implementing

4 policy are entitled to qualified immunity where no then-existing case law clearly established that the

5 particular policy was unconstitutional. See also, Dodd v. City of Norwich, 827 F.2d 1, 4 (2d Cir.

6 1987), cert. denied, 484 U.S. 1007 (1988) wherein the Court instructed the lower court to consider

7 whether the defendant was entitled to qualified immunity based on the fact that he was following the

8 policy and training of the police department. As the Supreme Court explained in Pierson v. Ray, 386 9 U.S. 547, 555 (1967)53, "[a] policeman's lot is not so unhappy that he must choose between being

10 charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted

11 in damages if he does."

12

c. The Same Principles Apply to the Command Staff

13

The same principles discussed above apply to the Command Staff. Moreover, several other

14 law enforcement departments, including Seattle, San Diego, Alameda County and Contra Costa

15 County had adopted the MFF concept and the use of less lethal munitions for crowd control purposes.

16 March 2003 POST guidelines also recommended the use of less lethal for crowd control as did the

17 manufacturers of bean bags and wooden dowels. OPD had successfully used less lethal earlier in

18 2003 in two crowd control events. Under such circumstances, it cannot be said that no reasonable

19 officer in Capt. Yee's or Deputy Chief Haw's position would have concluded that it was unlawful to

20 order the Red Tango Team to use less lethal at the East SSA Gate on a limited basis against non-

21 dispersing individuals when the neither the approach of the skirmish line nor two dispersal orders had

22 succeeded in clearing the East SSA Gate.

23

As for Chief Word, he was not at the Port on April 7, and he is sued as a policy-maker for the

24 City. (TAC, ¶ 10.) Whether or not he was a policy-maker for the City, he could not make official

25 policy in his individual capacity. Supervisory liability will only be imposed against a supervisory

26

27 53

Even though the Supreme Court subsequently replaced Pierson's subjective "good-faith" qualified immunity

28 standard with an objective "reasonableness" inquiry, the principle that a peace officer who has probable cause to arrest

someone under a statute that a reasonable officer could believe is constitutional, will be immune from liability even if

the statute is later held to be unconstitutional. Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).

23

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1 official in his individual capacity "for his own culpable action or inaction in the training, supervision,

2 or control of his subordinates, for his acquiescence in the constitutional deprivations of which the

3 complaint is made, or for conduct that showed a reckless or callous indifference to the rights of

4 others." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations omitted).

5 There is no evidence that would support liability against Chief Word in his individual capacity. See

6 Menotti v. City of Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005)

7 E. 8

STATE LAW CLAIMS: The Individual Defendants Are Entitled to Immunity Pursuant to California Government Code § 820.2

9

For the same reasons set forth above, defendants are immune from liability on the state law

10 claims pursuant to California Government Code § 820.2. In Coming Up, Inc. v. City and County of

11 San Francisco, 857 F.Supp. 711, 718 (N.D.Cal 1994), the Court briefly discussed, without deciding,

12 whether an immunity, comparable to the good faith immunity available in §1983 cases, existed for

13 state law claims. The Court noted there were numerous cases in which police officers had been

14 granted immunity pursuant to Gov. C. § 820.2, and it compared the language of § 820.2 to that in

15 Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991) in which § 1983 qualified immunity

16 protected “government officials performing discretionary functions.”

17

Other parallels have been drawn between § 820.2 and the parameters of § 1983 liability. In

18 Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 349 (1996) the Court noted that the test for

19 determining whether a homicide by a peace officer was justifiable, and thus immunized, was whether

20 the circumstances reasonably created a fear of death or serious bodily injury to an officer or to

21 another. It pointed to People v. Rivera, 8 Cal.App.4th 1000, 1007 (1992) noting that the court therein

22 applied a Fourth Amendment “reasonableness” analysis in finding that the use of an attack dog by a

23 police officer was justified because the officer “reasonably feared for his safety, and that of others in

24 the area.” The Court said: “The same is true of Government Code section 820.2, which provides

25 immunity from liability to public employees for their discretionary acts.” Ibid. (See also Edson v.

26 City of Anaheim, 63 Cal.App.4th 1269 (1998) - applying federal standards to state law unreasonable

27 force claims.) The Tort Claims Act immunities have been held to apply to the Unruh Act, Civil Code

28 § 51 et seq., in addition to other state tort actions. See Gates v. Superior Court, 32 Cal.App.4th 481

24

__________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION: LOCAL 10 PLAINTIFFS’ FIRST AMENDMENT CLAIMS

Case3:03-cv-02962-TEH Document214 Filed10/31/05 Page32 of 32

1 (1995). Thus, for the same reasons the officers would be entitled to qualified immunity under §

2 1983, they are entitled to the immunity provided by § 820.2 on plaintiffs’ state law claims.

3 V. CONCLUSION

4

For all of the foregoing reasons, defendants respectfully submit that they are entitled to

5 summary judgment or, in the alternative, summary adjudication, on the First Amendment claims of

6 the Local 10 plaintiffs, brought under 42 USC § 1983 and the California Constitution, Article I, §§ 2

7 and 3 and the informational privacy claim brought pursuant to the California Constitution, Article I, §

8 1. In addition, as there are no facts which support the longshoremen’s assertion that they were

9 ‘seized’ by defendants, defendants are entitled to summary judgment or, in the alternative, summary

10 adjudication, on the Fourth Amendment claims. Finally, the defendants are entitled to qualified

11 immunity on the § 1983 claims and discretionary immunity on the state law claims as the use of less

12 lethal did not violate plaintiffs' constitutional rights, the law was not clearly established, and the use

13 of less lethal was objectively reasonable under the circumstances.

14

15 Dated: October 31, 2005

BERTRAND, FOX & ELLIOT

16

/S/

17

By: ________________________________

Gregory M. Fox

18

Arlene C. Helfrich

Attorneys for Defendants 19

20

21

22

23

24

25

26

27

28
25
__________________________________________________________________________________________________________________________
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION: LOCAL 10 PLAINTIFFS’ FIRST AMENDMENT CLAIMS

 
 Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page1 of 8

GREGORY M. FOX, STATE BAR NO. 070876
Bertrand, Fox & Elliot 2 The Waterfront Building - 2749 Hyde Street
San Francisco, California 94109 3 Telephone: (415) 353-0999
FAX (415) 353-0990 4 Attorneys for Defendants CITY OF OAKLAND
and POLICE CHIEF RICHARD WORD
5 (List of Additional Counsel Attached)
6

7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9

10 SRI LOUISE COLES, et al.

) File No. C03-2961 TEH (JL)

11

)

Plaintiffs 12

) ) File No. No. C 03-2962 TEH (JL)

13 vs.

) ) Hon. Thelton E. Henderson

14 CITY OF OAKLAND, a municipal entity, et al. )

~

15

Defendants

i ~ STIPULATION AND

ORDER

16

) APPROVING PARTIAL SETTLEMENT OF

LOCAL 10, INTERNATIONAL LONGSHORE) PLAINTIFFS' CLAIMS FOR INJUNCTIVE

17 AND WAREHOUSE UNION, et aI.,

18

Plaintiffs,

) RELIEF ) )

vs. 19

) )

20 CITY OF OAKLAND; et aI.,

)

)

21

Defendants.

)

22 --------------------------)

23

24

25

26

27

28

STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEf - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page2 of 8

MICHAEL J. HADDAD, ESQ (State Bar No. 189114)
JULIA SHERWIN, ESQ. (State Bar No. 189268) 2 Haddad & ShelWin
505 Seventeenth Street 3 Oakland, California 94612
Telephone: (510) 452-5500 4 FAX: (510) 452-5510

5 WILLIAM H. GOODMAN, WG 1241

V 6

Moore & Goodm~n, LLP 740 Broadwa 5' Floor

NewYork,N 10003

7 Tel~hone: (212) 353-9587

FA (212) 254-0857

8 Attorneys for Plaintiffs Sri Coles et al C03-2961

9 JAMES B. CHANIN, SBN 76043

10

JULIE M. HOUK, SBN 114968 LAW OFFICES OF JAMES B. CHANIN

II

3050 Shattuck Avenue Berkeley, California 94705

Telephone: (510) 848-4752 12 FAX (510) 848-5819

13 JOHN L. BURRIS, SBN 69888
14 7677 Oakport Street, Suite 1120 Oakland, CA 94621
15 Telephone: (510) 839-5200
FAX (510) 839-3882
16

17

RACHEL LEDERMAN, SBN 130192 NATIONAL LAWYERS GUILD and

18

Law Offices of Rachel Lederman and Alexsis C. Beach 558 Capp Street

San Francisco, CA 94110 19 Telcphone:(415) 282-9300
FAX (415) 285-5066 20

ALAN L. SCHLOSSER, SBN 49957 21 JULIA HARUMI MASS SBN 189649

MARK SCHLOSBERG, SBN 209144

22 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN

23

CALIFORNIA, 1663 Mission Street, Suite 460 San Francisco, CA 94103

24

Telephone: (415) 621-2493 FAX (415) 255-8437

25 Counsel for Plaintiffs Local 10 Longshore and Wherehouse Union et at. 26 C03-2962 THE (JL)

27

28

2
STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page3 of 8
John A. Russo Esq. State Bar No. 129729 City Attorney 2 Randolph W. Hall, Esq. State Bar No. 080142 Chief Asst. City Attorney 3 Office of the City Attorney One Frank H. Ogawa Plaza, 6th Floor 4 Oakland CA 94612 Telephone: (510) 238-3601 5 FAX (5\0) 238-6500 6 Counsel for defendant CITY OF OAKLAND et al 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page4 of 8

1

STIPULATION

2

All parties to these partially consolidated cases, by and through their attorneys, hereby

3 stipulate and agree that they have resolved the Plaintiffs' claims for declaratory and/or injunctive

4 relief against Defendant City of Oakland, insofar as those claims relate to the policies for Crowd

5 Control by the Oakland Police Department. Police Chief Richard Word fonnally approved the OPO

6 Crowd Control/Crowd Management Policy on November 9, 2004 (hereafter referred to as OPO

7 Crowd Control Policy.) A copy of the agreed new OPD Crowd Control Policy is attached and

8 incorporated hereto as Exhibit A.

9

Defendants contend, throughout this paragraph, as follows: Following the April 7, 2003

10 incident Oakland City officials immediately began a legal and operational assessment of the OPO

11 Crowd Control Policy, including an analysis of use offorce in crowd control situations. The City

12 Attorney's recommendation in mid-April 2003 to OPD was to immediately take idcntified, specific

13 enumerated steps to assure that the Crowd Control Policy was in compliance with federal and state

14 laws. In furtherance of the City Attorney's recommendation and from a police "best practices

15 perspective" Police Chief Richard Word convened an internal review board to review applicable

16 OPO policies and make recommendations to the Chief. The Review Board met on May 22, 29 and

17 June 5, 2003. On December 11,2003 Chief Word publicly announced changes to applicable OPD

18 crowd control and use of force policies. These policy changes were later set forth in Special Order

19 No. 8135. Chief Word further announced the drafting ofa new written OPO Crowd Control Policy

20 and that he would meet and confer with plaintiffs' legal representatives about said policy. Thereafter

21 the parties exchanged draft policies and began a meet and confer process resulting in a consensus on

22 a new OPO crowd control policy document.

23

This Policy was the result of over ten months of difficult, comprehensive and non-collusive

24 negotiations between the parties. Numerous drafts and counter drafts were exchanged and discussed

25 before agreement was reached. Counsel for the plaintiffs met twice directly with OPO officers,

26 including Chief Word, and had numerous meetings and discussions with defendants' attorneys. The

27 respective clients have been kept infonned by their attorneys of the substance of these negotiations,

28 of the resulting agreement on the OPO Crowd Control Policy, and have agreed to it as the basis for a

partial settlement of this case.

4

STIPULATlON AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page5 of 8

I

The Oakland Police Department also agrees as part of this Stipulation and Order that it will

2 provide training as set forth in the new OPD Crowd Control Policy at section XII (A-D). The parties

3 agree to meet and confer regarding the Department's proposed training program and its scheduling.

4 Any disagreements between the parties regarding the proposed training program and its scheduling

5 may be submitted to the Court for resolution.

6

Plaintiffs Sri Louise Coles et aI., lawsuit (No. C03-2961 TEH (JL), set forth their injunctive

7 relief claims relating to the OPD Crowd Control Policy in their Request for Relief at (d) i-vi; viii of

8 their Second Amended Complaint. Plaintiffs Coles et al. also set forth such claims for such

9 injunctive relief in Request for Relief paragraph (e). Plaintiffs Local 10, International Longshore and

10 Warehouse Union et aI., lawsuit (No. C 02-2962 TEH (JL), set forth their injunctive and declaratory

II relief claims in their Prayer for Relief at paragraphs 2 and 3 of their Third Amended Complaint. In

12 consideration of the agreement and consensus on the wording of the new OPD Crowd Control Policy

\3 between the parties, the plaintiffs in each case (hereinafter "Plaintiffs") will dismiss with prejudice

14 their declaratory and injunctive relief claims related to this agreement as set forth above in their

15 respective requests for relief. The elass alleged in the Third Amended Complaint by plaintiffs Local

16 10 et al (paragraphs 20-27) was never certified by the Court, and thus these class allegations are 17 dismissed without prejudice.

18

Defendants City of Oakland et. aI, in both cases agree to this partial settlement without

19 admitting liability. Defendants' non-admission of liability does not affect Plaintiffs' claims for

20 attorneys fees and costs related to this partial settlement.

21

All parties reserve all claims and defenses relating to Plaintiffs' damages claims, including all

22 claims and defenses relating to municipal and supervisory liability pertaining to the April 7, 2003

23 incident which is more fully described in the respective lawsuits and incorporated herein as though

24 fully set forth. All parties also reserve all claims and defenses relating to Plaintiffs' claims for

25 attorneys' fees and costs in connection with this settlement of the claims for declaratory and

26 injunctive reliefregarding the OPD Crowd Control Policy in both lawsuits and with all other claims

27 more fully set forth in both lawsuits.

28

All parties further agree to continue to meet and confer concerning the full resolution of

5

STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELlEF - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page6 of 8

Plaintiffs' remaining claims for injunctive relief and Plaintiffs' claims for attorneys' fees and costs, as

2 well as the following: (1) any converting of this OPD Crowd Control Policy into a more concise

3 policy document with related training bulletins, each of which would also constitute Oakland Police

4 Department policy; (2) related training requirements and procedures to implement the training

5 requirements set forth in the new OPD Crowd Control Policy as set forth above; (3) any material

6 change to the terms of this policy, including any new incorporation of use of force technology and/or

7 other uses of force for crowd control before such changes are actually made into crowd control

8 policy; and (4) certain other policies and procedures of the Oakland Police Department related to this

9 OPD Crowd Control Policy or Plaintiffs' remaining claims for injunctive relief.

10

With respect to Plaintiffs' claims for attorneys' fees and costs related to this partial settlement,

11 the parties agree to the following procedure for resolution of such claims: (1) Plaintiffs' counsel will

12 provide Defendants with written demands for such claims; (2) after the submission of those written

13 demands, the parties will meet and confer for forty-five (45) days, commencing no earlier than

14 January 1,2005, to try to resolve such claims; (3) if the parties are unable to resolve such claims, then

15 at the expiration of that meet and confer period, Plaintiffs may file a motion for reasonable attorneys'

16 fees and costs with the Court.

17

The parties stipulate and request that this Court approve this partial settlement and that this

18 Court retain jurisdiction of this matter after these claims are dismissed to enforce the terms of this

19 settlement, to rcsolve any disputes that may arise between the parties concerning this settlement or

20 the matters sct forth in the preceding paragraphs, and if necessary, to resolve Plaintiffs' claims for

21 attorneys' fees and costs. The parties further stipulate and request that this Court retain jurisdiction

22 for three (3) years from the date of filing of this Stipulation and Order with the proviso that within

23 that threc year time period any party may move the court to extend the time for up to an additional 24

24 months if there is a material breach ofthc terms of this Stipulation.

25

Pursuant to this stipulated partial settlement, Plaintiffs agree to dismiss their clams for

26 declaratory and/or injunctive relief related to the OPD Crowd Control Policy to the extent those

27 claims have been settled as provided herein and subject to this Court's retention of jurisdiction as

28 described herein.

6
STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-2962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page7 of 8

1 Dated: December 20, 2004

2

ALAN L. SCHLOSSER

3

AMERICAN CIVIL LIBERTIES UNION

4

FOUNDATION OF NORTHERN CALIFORNIA

Attorney for Plaintiffs in Local 10, et al. 5

6 Dated: December 20, 2004
7

8

RACHEL LEDERMAN

9

NATIONAL LAWYERS GUILD

Attorney for Plaintiffs in Local I0, et al.

10

11 Dated: December 20, 2004 12 13 14

JOHN L. BURRIS Attorney for Plaintiffs in Local 10, et al.

15 Dated: December 20, 2004 16 17 18

JAMES B. CHANIN Attorney for Plaintiffs in Local I0, et al.

19 Dated: December 20, 2004

20

MICHAEL J. HADDAD

21

Attorney for Plaintiffs in Sri Louise Coles, et al.

22

23 Dated: December 20, 2004
24
25

GREGORY M. FOX Attorney for Defendants City of Oakland et al.

26

27 Dated: December 20, 2004 28

JOHN A. RUSSO, City Attorney RANDOLPH W. HALL, Chief Ass!. City Attorney CHARLES VOSE, Deputy City Attorney Attorneys for Defendants City of Oakland, et al.

STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-1962 and 2961 TEH (JL)

Case3:03-cv-02962-TEH Document34 Filed12/28/04 Page8 of 8

1

ORDER

2

THIS COURT, having carefully monitored the parties' progress in this matter, having been

3 informed of the substance of the parties' partial settlement agreement including the new OPD Crowd

4 Control Policy which is attached and incorporated herein, and based on the stipulation of the parties,

5 THIS COURT HEREBY ORDERS THAT the parties' partial settlement of Plaintiffs' claims
6 for injunctive reliefas described in the parties' stipulation and as set forth in the attached proposed
7
8 policy is APPROVED.

9

THIS COURT FURTHER ORDERS THAT Plaintiffs' claims for injunctive relief pertaining

10 to the Oakland Police Department's written Crowd Control Policy shall be dismissed pursuant to the
11 parties' partial settlement and stipUlation, subject to this Court's retention of jurisdiction as described
12 herein.
13

14

THIS COURT FURTHER ORDERS THAT this Court shall retain jurisdiction of this matter

15 after these claims are dismissed for a three year period commencing with the date of filing of this
16 Order to enforce the terms of this settlement, to resolve any disputes that may arise between the
17 parties concerning this settlement or the related matters on which the parties agree to meet and confer
18 as set forth in the parties' stipulation, and if necessary, to resolve Plaintiffs' claims for attorneys' fees
19
20 and costs. Within that three year time period any party may move the Court to extend this time

21 period up to an additional 24 months in the event of a material breach of the terms ofthe Stipulation.

22
BY STIPULATION OF THE PARTIES, IT IS SO ORDERED.

23

If/Pi 24
25

26

AT.

~z -==---

27

28

8
STIPULATION AND (PROPOSED) ORDER APPROVING PARTIAL SETTLEMENT OF PLAINTIFFS' CLAIMS FOR INJUNCTIVE RELIEF - Case Nos. C-03-2962 and 2961 TEH UL)

 
 Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 1 of 12

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 SRI LOUISE COLES, et al.,

8

Plaintiffs,

9

v.

10 CITY OF OAKLAND, et al.,

11

Defendants.

12

NO. C03-2961 TEH
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

13 LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE
14 UNION, et al.,

15

Plaintiffs,

16

v.

17 CITY OF OAKLAND, et al.,

18

Defendants.

19

NO. C03-2962 TEH

20

These matters came before the Court on Monday, March 7, 2005, on Defendants’

21 motions to dismiss. Although Defendants filed a separate motion in each of the above cases,

22 the cases concern the same April 7, 2003 antiwar demonstration at the Port of Oakland, as well

23 as the same allegations of use of force by Defendants. In addition, the primary issue – whether

24 Plaintiffs can state a claim for relief based on the Fourth Amendment – is common to both

25 motions. Thus, the Court finds it appropriate to address both motions in a single order. After

26 carefully considering the parties’ written and oral arguments, the factual allegations in

27 Plaintiffs’ complaints, and relevant case law, the Court DENIES Defendants’ motions in both

28 cases for the reasons set forth below.

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 2 of 12

United States District Court For the Northern District of California

1 BACKGROUND

2

Plaintiffs are demonstrators, legal observers, videographers, journalists, and

3 dockworkers who, on April 7, 2003, gathered outside the gate entrances of two companies at

4 the Port of Oakland that had economic involvement in the war in Iraq. They allege that Oakland

5 police officers used excessive force at various times throughout that morning’s demonstration,

6 sometimes without any warning and at other times after giving orders to disperse that were

7 allegedly inaudible to most of the crowd. Plaintiffs allege that Defendants aimed and fired

8 projectiles, such as wooden dowels, “flexible batons” (bean bags), and sting ball grenades filled

9 with rubber pellets and tear gas, directly at Plaintiffs and, in some cases, from close range.

10 Defendants also allegedly charged Plaintiffs with motorcycles and hit them with clubs. The

11 police allegedly never gave a clear order directing what Plaintiffs should do or where they

12 should go to avoid being shot at or otherwise subjected to force.

13

Plaintiffs allege that the police continued to shoot Plaintiffs with projectiles and charge

14 them with motorcycles even after they started to leave the protest area by walking up the only

15 avenue not blocked off by police. According to the allegations, the police herded Plaintiffs

16 from the port area to the West Oakland BART station – a path of more than a mile – and also

17 pursued a group of Plaintiffs who walked from the BART station to the Oakland federal

18 building, periodically hitting them with motorcycles and shooting projectiles at them.

19

Based on these allegations, Plaintiffs in both cases assert violations of their First,

20 Fourth, and Fourteenth Amendment rights under the United States Constitution. Plaintiffs also

21 contend that Defendants violated various provisions of the California Constitution and other

22 California state laws. Defendants now move to dismiss the Fourth Amendment claims brought

23 by all plaintiffs who were not arrested in connection with the demonstration.1 Defendants also

24 move to dismiss the First Amendment claim asserted by the union plaintiffs in the Local 10

25 case.

26

27

28

1Only a handful of plaintiffs were arrested. Defendants do not seek dismissal of the Fourth Amendment claims based on allegedly excessive force used during these arrests.

2

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 3 of 12

United States District Court For the Northern District of California

1 LEGAL STANDARD

2

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a

3 plaintiff’s allegations fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P.

4 12(b)(6). A court should not grant dismissal “unless it appears beyond doubt that the plaintiff

5 can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.

6 Gibson, 355 U.S. 41, 45-46 (1957). Moreover, dismissal should be with leave to amend

7 unless it is clear that amendment could not possibly cure the complaint’s deficiencies.

8 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998).

9

In deciding whether a case should be dismissed, a court may generally only consider the

10 complaint and any attached exhibits that have been incorporated therein. Lee v. City of Los

11 Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, the court may consider a document

12 external to the complaint if the complaint “necessarily relies” on the document and no party

13 contests the document’s authenticity. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.

14 1998). The court may also consider facts for which judicial notice is appropriate. Barron v.

15 Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Thus, while the court must generally accept as

16 true the factual allegations of the complaint and construe those allegations in the light most

17 favorable to the plaintiff, the court need not “accept as true allegations that contradict matters

18 properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266

19 F.3d 979, 988 (9th Cir. 2001), amended by 275 F.3d 1187 (9th Cir. 2001). “Nor is the court

20 required to accept as true allegations that are merely conclusory, unwarranted deductions of

21 fact, or unreasonable inferences.” Id.

22

23 DISCUSSION

24 I. Fourth Amendment Claims

25

Plaintiffs in both cases assert that Defendants’ use of force violated the Fourth

26 Amendment. Defendants seek dismissal of Plaintiffs’ Fourth Amendment claims on grounds

27 that Plaintiffs’ excessive force claims must be analyzed under the substantive due process

28 clause of the Fourteenth Amendment rather than under the Fourth Amendment’s ban on

3

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 4 of 12

United States District Court For the Northern District of California

1 unreasonable searches and seizures. In Graham v. Connor, the Supreme Court held that “all

2 claims that law enforcement officers have used excessive force – deadly or not – in the course

3 of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

4 Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

5 process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). Where no search or

6 seizure is involved, however, the substantive due process framework applies. County of

7 Sacramento v. Lewis, 523 U.S. 833, 843 (1998). Under this latter framework, use of force is

8 unconstitutional only if it “shocks the conscience.” Id. at 845-55. The parties here do not

9 dispute that Plaintiffs were not arrested or stopped for investigation, and Plaintiffs do not

10 allege that they were searched by Defendants.2 The key issue in deciding Defendants’ motions

11 is therefore whether Plaintiffs were subject to an “other ‘seizure’” triggering the Fourth

12 Amendment’s protections.

13

Defendants acknowledge that no court has ever applied the substantive due process

14 clause to an excessive force claim in an analogous case. To the contrary, several courts have

15 analyzed similar claims under the rubric of the Fourth Amendment. Most of these courts,

16 however, failed to engage in any inquiry regarding whether the Fourth Amendment was the

17 appropriate framework for analyzing plaintiffs’ claims. E.g., Russ v. Jordan, 1992 U.S. Dist.

18 LEXIS 19484, No. C-92-1084 MHP, at *12-18 (N.D. Cal. Dec. 8, 1992) (applying the Fourth

19 Amendment reasonableness standard to a case involving a baton strike to a demonstration

20 observer whom officers had no intent to arrest, without first analyzing whether the plaintiff was

21 “seized”); see also Otero v. Wood, 316 F. Supp. 2d 612, 621 n.5 (S.D. Ohio 2004) (applying,

22 without explanation, Fourth Amendment analysis to plaintiff’s excessive force claim where

23 plaintiff alleged that police fired wooden batons at her as part of a crowd-dispersal technique

24 and where plaintiff’s complaint failed to clearly identify under which constitutional

25 amendment her excessive force claim arose); Secot v. City of Sterling Heights, 985 F. Supp.

26 715, 720-21 (E.D. Mich. 1997) (applying Fourth Amendment standard to excessive force

27 claim without analyzing whether the circumstances constituted a “seizure,” in case involving

28

2These motions do not concern the claims of those plaintiffs who were arrested.

4

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 5 of 12

United States District Court For the Northern District of California

1 use of baton to move protesters); Lamb v. City of Decatur, 947 F. Supp. 1261, 1265-66 (C.D.

2 Ill. 1996) (same, in case involving use of pepper spray on protesters). Similarly, although the

3 Sixth Circuit has discussed the difference between the Fourth Amendment and due process

4 standards for excessive force claims, that court explicitly did not decide which framework

5 applied to a crowd-control situation because it found, on review of a summary judgment ruling,

6 no disputed material fact under either standard. Darrah v. City of Oak Park, 255 F.3d 301,

7 305-06 (6th Cir. 2001).

8

It appears that only one court, a district court in the District of Oregon, has directly

9 decided the issue of whether a Fourth Amendment claim can arise from the police’s use of

10 force to move plaintiffs as part of the police’s crowd-control or crowd-dispersal tactics.

11 Marbet v. City of Portland, 2003 U.S. Dist. LEXIS 25685, No. CV 02-1448-HA (D. Or. Sept.

12 8, 2003). In that case, demonstrators protesting against President Bush were blocking the

13 entrance to a Bush fundraiser. After plaintiffs allegedly ignored orders to disperse, defendants

14 “applied pepper spray and moved the crowd with force. Later in the day, the police used

15 additional tactics to subdue the crowd, including firing rubber bullets at members of the

16 protest.” Id. at *2-3. Defendants argued that the Fourth Amendment did not apply because

17 there was no seizure, but the court concluded to the contrary:

18

The Amended Complaint alleges facts, which, if proved, would

establish that defendants intentionally restrained plaintiffs’

19

freedom of movement. Plaintiffs allege that defendants

intentionally applied pepper spray and shot rubber bullets at

20

plaintiffs who were engaged in lawful protest activities.

Further, the protesters were physically moved back from their

21

peaceful positions, according to the Amended Complaint. In

their supporting memorandum, defendants appear to contend

22

that the Fourth Amendment is not offended by the intentional

use of force that physically injures a citizen and only reduces

23

his or her freedom of movement. If the citizen is able to walk

or hobble away, according to defendants, no Fourth

24

Amendment violation has occurred. However, as the Supreme

Court has held, “The word ‘seizure’ readily bears the meaning

25

of laying on of hands or application of physical force to

restrain movement, even when it is ultimately unsuccessful.”

26

California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d

690, 111 S. Ct. 1547 (1991).

27

Defendants admit that on August 22, 2002, the police

28

physically moved the protesters approximately 120 feet in

5

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 6 of 12

United States District Court For the Northern District of California

1

order to create a larger entryway to the street. Defendants

used pepper spray and physical force to achieve this

2

movement. Clearly the effect of defendants’ actions was to

control plaintiffs’ movement. Additionally, certain plaintiffs

3

assert that they were physically prevented from leaving an area

cordoned off by the police. By physically moving certain

4

plaintiffs and circumscribing the area of movement of other

plaintiffs, defendants seized plaintiffs within the meaning of

5

the Fourth Amendment.

6 Id. at *26-28.

7

In sum, Defendants find no support for their position in any of the cases that have

8 previously addressed the use of force in the crowd-control or crowd-dispersal context. The

9 district court in Marbet explicitly held to the contrary, finding that the police’s use of force in

10 that case constituted a seizure and that the Fourth Amendment therefore governed the

11 plaintiffs’ excessive force claims. The court reached that conclusion even though only some

12 plaintiffs alleged that they were held in a confined area and even though it appears that the

13 police intended to “move[] the protesters . . . to create a larger entryway to the street,”id. at

14 *27, rather than to arrest them. In addition, several other district courts, including one in this

15 district, have applied a Fourth Amendment analysis to excessive force claims arising in crowd-

16 control or crowd-dispersal situations, albeit without explicitly finding that the facts at issue

17 constituted a seizure.

18

Moreover, this Court independently finds Defendants’ position – that Plaintiffs’ factual

19 allegations do not, as a matter of law, constitute a Fourth Amendment seizure – to be

20 unsupported by controlling precedent. In Brower v. County of Inyo, the Supreme Court

21 explained that “[v]iolation of the Fourth Amendment requires an intentional acquisition of

22 physical control.” Brower, 489 U.S. 593, 596 (1989). The Court continued:

23

Thus, if a parked and unoccupied police car slips its brake and

pins a passerby against a wall, it is likely that a tort has

24

occurred, but not a violation of the Fourth Amendment. And

the situation would not change if the passerby happened, by

25

lucky chance, to be a serial murderer for whom there was an

outstanding arrest warrant – even if, at the time he was thus

26

pinned, he was in the process of running away from two

pursuing constables. It is clear, in other words, that a Fourth

27

Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual’s freedom

28

of movement (the innocent passerby), nor even whenever

6

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 7 of 12

United States District Court For the Northern District of California

1

there is a governmentally caused and governmentally desired

termination of an individual’s freedom of movement (the

2

fleeing felon), but only when there is a governmental

termination of freedom of movement through means

3

intentionally applied.

4 Id. at 596-97. This last scenario is exactly the case here. The complaints allege that

5 Defendants intentionally applied force – in the form of wooden bullets, bean bags, grenades,

6 batons, and motorcycle hits – to stop Plaintiffs’ freedom of movement, essentially funneling

7 Plaintiffs down a mile-long path from the port to the BART station, and that Plaintiffs

8 submitted to Defendants’ authority by following the only route left open to them by the police.

9

The cases at issue are therefore different from cases where a person’s freedom of

10 movement is terminated, but not by “means intentionally applied.” Compare, e.g., Lewis, 523

11 U.S. at 843-44 (no seizure when person died when police car ran into motorcycle after high-

12 speed chase because the police only intended to stop the person by flashing lights and

13 continuing pursuit, not by crashing into him); Childress v. City of Arapaho, 210 F.3d 1154,

14 1157 (10th Cir. 2000) (no seizure when innocent hostages are accidentally shot by police

15 because police only intended to stop the suspects driving the van and the van itself, and they did

16 not intend to stop the hostages). They also differ from cases where no physical force was used

17 and the person in question did not submit to the police’s show of authority by non-physical

18 means. Compare California v. Hodari D., 499 U.S. 621, 625-29 (1991) (holding that an

19 “arrest requires either physical force . . . or, where that is absent, submission to the assertion

20 of authority,” and finding no seizure before Hodari was tackled because, prior to that point, no

21 force was used and Hodari failed to submit to police authority).

22

The situation in Fuller v. Vines, in which the court found no seizure where the police

23 pointed a gun at an individual but never indicated that the person was not free to leave, is also

24 distinguishable. Fuller, 36 F.3d 65, 68 (9th Cir. 1994). Unlike the plaintiff in that case,

25 whose only restriction was that he could not attack the police officers, Plaintiffs here were

26 forced to move in a single direction. Thus, these cases are essentially the opposite of Fuller;

27 Defendants left Plaintiffs with only a single option, whereas the police in Fuller merely

28

7

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 8 of 12

United States District Court For the Northern District of California

1 foreclosed one option and left all other options open.3 In other words, the police in Fuller did

2 not terminate the plaintiff’s freedom of movement, which is a prerequisite to finding that a

3 seizure occurred. Brower, 489 U.S. at 596-97 . Here, by contrast, Defendants took control of

4 Plaintiffs’ movement by leaving only one path open to Plaintiffs and forcing Plaintiffs to move

5 down that path. A reasonable person in Plaintiffs’ position would have believed that he or she

6 was “not at liberty to ignore the police presence and go about their business.” United States v.

7 Washington, 387 F.3d 1060, 1068 (9th Cir. 2004) (citations omitted) (discussing standard for

8 determining when a person’s liberty is restrained and explaining that a seizure occurs whenever

9 a law enforcement officer uses coercion, physical force, or other show of authority to restrain

10 a person’s liberty).

11

Contrary to Defendants’ assertions, a person may be seized without becoming

12 completely immobile or being forced to remain in one location. As noted, the Supreme Court

13 in Brower required only that a person’s freedom of movement be terminated, not that the

14 person’s movement be terminated. Brower, 489 U.S. at 596-97; see also Marbet, 2003 U.S.

15 Dist. LEXIS 25685, at *27 (rejecting defendants’ argument that no Fourth Amendment seizure

16 occurs where a citizen is physically injured by the intentional use of force but is still “able to

17 walk or hobble away”). The dispositive question is one of control: Did the police control the

18 plaintiff’s movement through the use of force intentionally applied for that purpose? See

19 Florida v. Bostick, 501 U.S. 429, 435-36 (1991) (key issue in determining whether a seizure

20 has occurred is the “coercive effect of the encounter” with police); Hodari D., 499 U.S. at 624

21 (at common law, “seizure” connoted “bringing [an object] within physical control”); Brower,

22

23

24

25

26

3Gause v. City of Philadelphia is distinguishable for the same reason. In Gause, the police told the plaintiff to leave the scene, but the plaintiff’s freedom of movement was not

27

otherwise restricted. Gause, No. 00-1052, 2001 U.S. Dist. LEXIS 17428, at *5-7 (E.D. Pa. Sept. 27, 2001). The court found no seizure under these circumstances because “a reasonable

28

person in Plaintiff’s position would have reasonably understood that she was free to leave.” Id. at *6.

8

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 9 of 12

United States District Court For the Northern District of California

1 489 U.S. at 596-97 (termination of freedom of movement must be caused by means

2 intentionally applied).4

3

Defendants also erroneously assert that a seizure occurs only when the use of force is

4 accompanied by the intent to arrest. Notably, Defendants cite no case that held that intent to

5 arrest is required for a seizure nor, relatedly, any case where the court held that there was no

6 seizure because the police did not intend to arrest the plaintiff. Defendants argue that “where

7 there is a use of force without the intent to arrest, and the subject is free to leave, as in Fuller,

8 Schaefer and Gause, there is no seizure.” Local 10 Mot. at 9. However, these cases do not

9 depend on the intent to arrest; instead, as discussed above, the courts’ findings of no seizure

10 were based on the police’s failure to control the movement of the person in question or on the

11 conclusion that a reasonable person in the individual’s position would have felt free to ignore

12 the police and go about his or her business.

13

Beyond that, the Ninth Circuit has held that intent to arrest is not required to find a

14 seizure under the Fourth Amendment. Reed v. Hoy, 909 F.2d 324, 329 (9th Cir. 1989). The

15 court rejected the defendant’s argument that a seizure requires intent to arrest and instead held

16 that use of deadly force constituted a seizure, whether that use of force was “for the purpose of

17 effectuating an arrest or other stop, or for the purpose of self-defense.” Id. The court’s

18 emphasis in determining whether a seizure occurred was on the “acquisition of physical control

19 by a law enforcement official,” and the court identified three elements for a Fourth

20 Amendment seizure: “(1) governmental (2) termination of freedom of movement (3) through

21 means intentionally applied.” Id. (citing Brower). The court declined to add a fourth element

22 – intent to arrest – that the defendant in that case, like Defendants here, suggested was

23 required.

24

25

26

4Thus, Schaefer v. Goch, a case cited by Defendants, does not support Defendants’ argument. In Schaefer, the Seventh Circuit found no seizure because the police never gained

27

control of the individual’s movement. Schaefer, 153 F.3d 793, 796-97 (7th Cir. 1998) (decedent was not seized because she could have chosen to move despite police presence and

28

the police were in no position to stop another individual from taking control of the decedent’s movement, which is what ultimately occurred).

9

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 10 of 12

United States District Court For the Northern District of California

1

Defendants also cite the following sentence from Hodari D. to support their position:

2 “We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond

3 its words and beyond the meaning of arrest, as respondent urges.” Hodari D., 499 U.S. at 627.

4 However, Defendants read this statement too broadly. In Hodari D., the Court was not

5 concerned with whether officers must intend to arrest a citizen before the Fourth Amendment

6 protects that citizen’s rights. Instead, the Court was concerned with extending Fourth

7 Amendment protections to all assertions of police authority, regardless of whether force was

8 used or whether the person submitted to that authority. Hodari D. stands only for the

9 proposition that a seizure does not occur when police do not use physical force and instead

10 attempt to restrain the liberty of a citizen by a show of authority, but the police’s target fails to

11 submit to that show of authority. To the extent that the Court intended anything more by the

12 statement relied on by Defendants, it is dicta and therefore not binding on this Court. Intent to

13 arrest was clearly present in Hodari D., and the Court therefore did not need to decide whether

14 a seizure requires intent to arrest.

15

In short, the Court concludes that the definition established by the Supreme Court

16 in Brower continues to govern what is considered a seizure under the Fourth Amendment.

17 Under Brower, a seizure occurs “when there is a governmental termination of freedom of

18 movement through means intentionally applied.” Brower, 489 U.S. at 597. Thus, a seizure

19 does not require intent to arrest but, instead, requires only intent to terminate an individual’s

20 freedom of movement by the means through which freedom of movement is actually

21 terminated. Viewing the factual allegations in these cases in a light most favorable to

22 Plaintiffs, the Court concludes that this test is satisfied here. Defendants allegedly did far

23 more than simply order Plaintiffs to disperse from the scene or attempt to control the crowd

24 gathered at the scene of the demonstrations. To the contrary, Defendants allegedly left

25 Plaintiffs with only one available path by which to leave the scene and applied physical force to

26 ensure that Plaintiffs followed that path. Defendants’ use of force against Plaintiffs allegedly

27 continued even after Plaintiffs left the protest area. The Court therefore concludes that, under

28 the facts as alleged, Defendants terminated Plaintiffs’ freedom of movement through means

10

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 11 of 12

United States District Court For the Northern District of California

1 intentionally applied, and that, as result, Plaintiffs may invoke the protections of the Fourth

2 Amendment.5 The Court’s decision is the same result reached by the only other district court

3 to have explicitly decided the issue, and it is also in accord with the several other courts that

4 have implicitly decided that the Fourth Amendment applies to the use of force in crowd-

5 control or crowd-dispersal situations. Accordingly, for the reasons discussed above, the Court

6 DENIES Defendants’ motions to dismiss Plaintiffs’ Fourth Amendment claims.

7

8 II. First Amendment Claim of the Union Plaintiffs

9

Defendants also move to dismiss the union plaintiffs’ First Amendment claim from the

10 Local 10 case. These plaintiffs, Local 10 of the International Longshore and Warehouse

11 Union (“ILWU”) and its officers and members, allege that they were “standing by” at the port

12 during the protests because they were awaiting an arbitrator’s decision as to whether they

13 should enter the facilities “in the face of the public anti-war demonstration as well as the mass

14 police presence.” Local 10 Third Am. Complaint (“TAC”) ¶ 34. These plaintiffs allege that,

15 prior to the day of the demonstration, Defendants gathered intelligence about the union’s

16 antiwar activities, including an antiwar internal newsletter from the union and e-mail messages

17 to a union group listserv concerning union support for antiwar protest activities. Id. ¶ 30.

18 They further allege that Defendants “deliberately singled out and aimed their weapons and

19 otherwise directed force at and engaged in the other conduct described herein against plaintiff

20 LOCAL 10 and its officers and members because of hostility, animus and discrimination

21 against the ILWU as an organization and against members and officers affiliated with the

22 ILWU.” Id. ¶ 48.

23

24

5As the parties observed at oral argument, application of the Fourth Amendment is a 25 fact-specific inquiry. Thus, the Court need not and does not decide whether all efforts to

26

disperse or control a crowd would constitute a Fourth Amendment seizure. For example, the factual allegations in the cases at hand are distinguishable from hypothetical allegations of a

27

police officer telling a person to get out of the street and onto the sidewalk or of the police closing a city block to pedestrian traffic but allowing traffic to flow freely outside of the

28

closed area. In the latter cases, whether the police terminated freedom of movement would be less clear than it is based on the allegations at issue here.

11

Case 3:03-cv-02962 Document 57 Filed 04/27/2005 Page 12 of 12

United States District Court For the Northern District of California

1

Based on the above allegations, the union plaintiffs clearly allege that they were

2 targeted by the police because of their union membership and the police’s animus and hostility

3 towards the union. If this is true, as the Court must assume it to be for purposes of deciding

4 this motion to dismiss, then Plaintiffs have sufficiently stated a claim for relief under the First

5 Amendment. Freedom of association “includes membership in unions.” Greminger v.

6 Seaborne, 584 F.2d 275, 278 (8th Cir. 1978). As Defendants’ counsel conceded at oral

7 argument, Plaintiffs’ freedom of association would therefore have been violated if police

8 targeted the union plaintiffs out of hostility towards the union. Consequently, the Court

9 DENIES Defendants’ motion to dismiss the union plaintiffs’ First Amendment claim.

10

11 CONCLUSION

12

In sum, for the reasons discussed above, and with good cause appearing, the Court

13 hereby DENIES Defendants’ motions to dismiss in their entirety. Plaintiffs in both cases have

14 sufficiently stated a claim for relief for violation of their Fourth Amendment rights, and the

15 union plaintiffs have also sufficiently stated a First Amendment claim.

16

The next scheduled appearance for the parties in these cases is the January 9, 2006

17 pretrial conference. If the parties believe that a case management conference would be useful

18 prior to that date, they should meet and confer and call this Court’s courtroom deputy with

19 potential dates on which all counsel are available.

20

21 IT IS SO ORDERED.

22

23 DATED 04/27/05 24

/s/ THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

25

26

27

28

12

 
 Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page1 of 24

JAMES B. CHANIN, SBN 76043

1

JULIE M. HOUK, SBN 114968

LAW OFFICES OF JAMES B. CHANIN

2

3050 Shattuck Avenue

Berkeley, California 94705

3

(510) 848-4752; FAX (510) 848-5819

JOHN L. BURRIS, SBN 69888

4

7677 Oakport Street, Suite 1120

Oakland, CA 94621

5

(510) 839-5200; FAX (510) 839-3882

6

RACHEL LEDERMAN, SBN 130192 NATIONAL LAWYERS GUILD and

Law Offices of Rachel Lederman

7

and Alexsis C. Beach

558 Capp Street

8

San Francisco, CA 94110

(415) 282-9300; FAX (415) 285-5066

9

Attorneys for plaintiffs

10

(Additional counsel on next page)

ALAN L. SCHLOSSER, SBN 49957 JULIA HARUMI MASS, SBN 189649 MARK SCHLOSBERG, SBN 209144 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 1663 Mission Street, Suite 460 San Francisco, CA 94103 (415) 621-2493; FAX (415) 255-8437

11 UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; BILLY KEPOO;

No.

14 15 16

ALLEN CHAPMAN; CHRISTOPHER CLAY; SILAS DUNN; WILLIE HAMLIN; ERNEST EVANS; DAVID LOVILLE; LAWRENCE MASSEY; BYRON MOORE, SR.; JOHN

COMPLAINT FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF

17

NISHINAGA; WILLOW ROSENTHAL; JESSICA LAWRENCE; SCOTT FLEMING;

CIVIL RIGHTS CLASS ACTION

18

JENNIFER SCHOCKEMOEHL; LAWRENCE MENARD; JEFFREY CROW BOLT;

DEMAND FOR JURY TRIAL.

19

MATTHEW DODT; REBECCA SONCHEK;

TERRENCE ENRIGHT; ARTHUR

20

MARTINEZ; HENRY NORR; STEVEN

21

SAKALA; SUSAN QUINLAN; TIM RIDOLFI;

ALICIA GROGAN-BROWN; KENNETH

22

HAYES; DEAN ROYER; BERNADINE

MELLIS; THOMAS BECKER; PATRICIA

23

“MAX” RORTY; JESSE CHRISTENSEN;

24

DIANA BOHN; MILES MONTABANO; NICHOLAS FRABASILIO; CYPRUS

25

GONZALEZ; KRISTIN MEEKER; ERIC

SHAW; VIOLETA FOREGGER; CHELSEA

26

SMITH; and AIDAN KOTLER, individually and

27

on behalf of all others similarly situated,

Plaintiffs, 28

COMPLAINT

1

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page2 of 24

1

vs.

2

CITY OF OAKLAND; RICHARD WORD; PATRICK HAW; ROD YEE; E. POULSON;

3

HOWARD A. JORDAN; DAVE KOZICKI; T.

HOGENMILLER; E. TRACEY; R. GUTIEREZ;

4

A. OERLEAMNS; R. HOLMGREN; P.

GONZALES; S. KNIGHT; M. RANDALL,

5

individually and in their official capacities, and

6

DOES 1-100, inclusive,

Defendants.

7

8

[Additional counsel]

9

BOBBIE STEIN

503 Dolores Street, #201

10

San Francisco, CA 94110-1564

11

(415) 255-0301; FAX (510) 601-5780

12

OSHA NEUMANN

1840 Woolsey Street

13

Berkeley, CA 94703

14

(510) 644-2429; FAX (510) 540-4821

15

Attorneys for plaintiffs

16

ROB REMAR

17

LEONARD CARDER LLP 1188 Franklin Street, #201

18

San Francisco, CA 94109

(415) 447-0403; FAX (415) 771-7010

19

(Counsel only for Local 10, ILWU)

20

21

22

23

24

25

26

27

28

COMPLAINT

2

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page3 of 24

1

I. INTRODUCTION

2

1. This is a civil rights class action arising from unconstitutional and unlawful actions taken by the

3

Oakland Police Department (“OPD”) in response to a peaceful nonviolent antiwar demonstration at the

4

Port of Oakland on April 7, 2003. The named individual plaintiffs are demonstrators, legal observers,

5

videographers, journalists, and dockworkers who were in the vicinity of the April 7th demonstration

6

when defendants did unlawfully disperse and interfere with the demonstration by, among other things,

7

firing guns which shot wooden dowels and bean bags, throwing “stingball” grenades filled with rubber

8

pellets and tear gas, and striking demonstrators with their motorcycles and clubs. Defendants’ actions

9

were the result of unlawful and unconstitutional policies and practices of the City of Oakland and the

10

OPD. The named individual plaintiffs seek damages from defendants for the injuries they suffered as a

11

result of the unlawful police conduct at the April 7th demonstration. In addition, the plaintiffs, on their

12

own behalf and on behalf of a class of persons similarly situated, seek declaratory and injunctive relief

13

to restrain defendants from using excessive, indiscriminate and/or arbitrary force and other unlawful

14

actions to interfere with, disperse and deter future demonstrations, rallies and protest activities in the

15

City of Oakland.

16

2. Plaintiffs claim that defendants’ actions deprived them of their right to freedom of speech and

17

association, their right to be free from unreasonable seizures and excessive force, and their right to due

18

process and equal protection of the laws, all guaranteed by the United States and California

19

Constitutions, as well as additional state law claims relating to the police actions complained of herein.

20

II. JURISDICTION

21

3. This action arises under 42 U.S.C. §1983. Jurisdiction is based on 28 U.S.C. §1331 and §1343.

22

The court has supplemental jurisdiction over state law claims under 28 U.S.C. §1367. Plaintiffs have

23

filed administrative claims with the City of Oakland in compliance with California Government Code

24

sections 910 et seq., and the City has not acted upon those claims.

25

III. INTRADISTRICT ASSIGNMENT

26

4. The claims alleged herein arose in the City of Oakland, State of California. Therefore, venue

27

and assignment lies in the United States District Court for the Northern District of California, San

28

Francisco Division or the Oakland Division.

COMPLAINT

3

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page4 of 24

1

IV. THE PARTIES

2

A. Plaintiffs

3

5. Plaintiff LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION

4

(“LOCAL 10") or (“ILWU”) is an unincorporated association and labor union whose members perform

5

longshore work in the Ports of Oakland, San Francisco and Richmond under a collective bargaining

6

agreement known as the Pacific Coast Longshore and Clerks Agreement (“PCL&CA”). Plaintiff

7

LOCAL 10 has, along with individual LOCAL 10 members, economic and legal interests concerning the

8

exercise of police powers and the use of force by defendants in the Port and City of Oakland. Plaintiff

9

LOCAL 10 sues on its own behalf and in its representative capacity on behalf of its officers and

10

members, including but not limited to, those who reside and/or work in the Port of Oakland and City of

11

Oakland.

12

6. The elected officers of Local 10 perform various duties on behalf of the Local 10 membership,

13

including, among other things, assisting and representing Local 10 members with respect to matters of

14

employment at work sites including the container terminal facility operated by Stevedoring Services of

15

America, and the marine container facility operated by American President Lines, Inc. and its wholly

16

owned subsidiary Eagle Marine Services, Inc., both located in the Port of Oakland. In particular, Local

17

10 officers show up when picketing or demonstrations occur at a work site, and represent Local 10 and

18

its members in arbitration proceedings that are held under the PCL&CA to determine whether Local 10

19

members should enter and/or work at a facility subject to such picketing or demonstrating.

20

7. Plaintiffs BILLY KEPOO, ALLEN CHAPMAN, CHRISTOPHER CLAY, SILAS DUNN,

21

WILLIE HAMLIN, ERNEST EVANS, DAVID LOVILLE, LAWRENCE MASSEY, and BYRON

22

MOORE, SR. are, and at all times mentioned herein were, dockworkers and members of Local 10 who

23

were in the vicinity of the demonstration on April 7, 2003 and were subjected to the unlawful police

24

conduct complained of herein.

25

8. Plaintiffs JOHN NISHINAGA, WILLOW ROSENTHAL, JESSICA LAWRENCE, SCOTT

26

FLEMING, JENNIFER SHOCKEMOEHL, LAWRENCE MENARD, JEFFERY CROW BOLT,

27

MATTHEW DODT, REBECCA SONCHEK, TERRENCE ENRIGHT, ARTHUR MARTINEZ,

28

HENRY NORR, STEVEN SAKALA, SUSAN QUINLAN, TIM RIDOLFI, ALICIA GROGAN-

COMPLAINT

4

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page5 of 24

1

BROWN, KENNETH HAYES, DEAN ROYER, BERNADINE MELLIS, THOMAS BECKER,

2

PATRICIA "MAX" RORTY, JESSE CHRISTENSEN, DIANA BOHN, MILES MONTABANO,

3

NICHOLAS FRABASILIO, CYPRUS GONZALEZ, KRISTIN MEEKER, ERIC SHAW, VIOLETA

4

FOREGGER, CHELSEA SMITH, and AIDAN KOTLER (hereafter referred to as “demonstrator

5

plaintiffs”), are individuals who were exercising their rights to freedom of speech and association in the

6

vicinity of the April 7, 2003, demonstration and were subjected to the unlawful police conduct

7

complained of herein.

8

B. Defendants

9

9. Defendant CITY OF OAKLAND is, and at all times herein mentioned was, a municipal

10

corporation duly organized and existing under the laws of the State of California.

11

10. Defendant RICHARD WORD is, and at all times herein mentioned was, the Chief of Police for

12

the CITY OF OAKLAND. Defendant WORD was the policy-maker for Defendant CITY OF

13

OAKLAND on the matters alleged herein related to the customs, policies, practices, of the OPD,

14

including, but not limited to, customs, policies and practices related to policing of First Amendment

15

activities; the training, supervision, hiring, discipline, assignment and control of police officers; and the

16

management and supervision of OPD.

17

11. Defendant PATRICK HAW is, and at all times herein mentioned was, the Deputy Chief in

18

charge of the OPD Patrol Division. Defendant HAW participated in the planning, supervision and

19

execution of the police conduct complained of herein.

20

12. Defendants Captain ROD YEE, Lt. E. POULSON, Lt. HOWARD A. JORDAN, Lt. DAVID

21

KOZICKI, Sgt. T. HOGENMILLER, and Sgt. E. TRACEY are, and at all times mentioned were,

22

command and/or supervisory employees of OPD who participated in the planning, supervision and

23

execution of the police conduct complained of herein.

24

13. Defendants Officers R. GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P. GONZALES, S.

25

KNIGHT, and M. RANDALL, are, and at all times mentioned were, officers of OPD who participated

26

in the execution of the police conduct complained of herein.

27

14. All of the above individual defendants are sued in their individual and official capacities.

28

COMPLAINT

5

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page6 of 24

1

15. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein as DOES 1

2

through 100, inclusive, and therefore sue said defendants by such fictitious names. Plaintiffs will amend

3

this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and

4

believe and therefore allege that each of the Doe defendants is legally responsible and liable for the

5

incident, injuries and damages hereinafter set forth, and that each of said defendants proximately caused

6

said incidents, injuries and damages by reason of their negligence, breach of duty, negligent supervision,

7

management or control, violation of constitutional and legal rights, or by reason of other personal,

8

vicarious or imputed negligence, fault, or breach of duty, whether severally or jointly, or whether based

9

upon agency, employment, or control or upon any other act or omission. Plaintiffs will ask leave to

10

amend this complaint to insert further charging allegations when such facts are ascertained.

11

16. Each of the defendants, including defendants DOES 1 through 100, caused, and is responsible

12

for, the below-described unlawful conduct and resulting injuries by, among other things, personally

13

participating in the unlawful conduct or acting jointly or conspiring with others who did so; by

14

authorizing, acquiescing in or setting in motion policies, plans or actions that led to the unlawful

15

conduct; by failing to take action to prevent the unlawful conduct; by failing and refusing with deliberate

16

indifference to plaintiffs' rights to initiate and maintain adequate training and supervision; and by

17

ratifying the unlawful conduct that occurred by agents and officers under their direction and control,

18

including failing to take remedial or disciplinary action.

19

17. In doing the acts alleged herein, defendants, and each of them, acted within the course and

20

scope of their employment for the CITY OF OAKLAND.

21

18. In doing the acts and/or omissions alleged herein, defendants, and each of them, acted under

22

color of authority and/or under color of law.

23

19. In doing the acts and/or omissions alleged herein, defendants, and each of them, acted as the

24

agent, servant, employee and/or in concert with each of said other defendants.

25

V. CLASS ACTION ALLEGATIONS

26

20. Plaintiffs JOHN NISHINAGA, WILLOW ROSENTHAL, JESSICA LAWRENCE, SCOTT

27

FLEMING, JENNIFER SCHOCKEMOEHL, LAWRENCE MENARD, JEFFREY CROW BOLT,

28

MATTHEW DODT, REBECCA SONCHEK, TERRENCE ENRIGHT, ARTHUR MARTINEZ,

COMPLAINT

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1

HENRY NORR, STEVEN SAKALA, SUSAN QUINLAN, TIM RIDOLFI, ALICIA GROGAN-

2

BROWN, KENNETH HAYES, DEAN ROYER, BERNADINE MELLIS, THOMAS BECKER,

3

PATRICIA “MAX” RORTY, JESSE CHRISTENSEN, DIANA BOHN, MILES MONTABANO,

4

NICHOLAS FRABASILIO, CYPRUS GONZALEZ, KRISTIN MEEKER, ERIC SHAW, VIOLETA

5

FOREGGER, CHELSEA SMITH, and AIDAN KOTLER, the demonstrator plaintiffs, seek class

6

certification pursuant to Fed.R.Civ.P. 23(a) and (b)(2) to pursue injunctive and declaratory relief on

7

behalf of themselves and all persons similarly situated. The proposed class consists of all persons who

8

attended the April 7th demonstration, and/or who may attend in the future demonstrations, rallies and

9

protests in the City of Oakland, and, as a result, have been, and/or hereafter may be, subjected to

10

defendants’ policy and practice of using excessive, indiscriminate and/or arbitrary force to disperse or

11

control persons attending demonstrations, rallies or protests as complained of herein.

12

21. This case satisfies the prerequisites of a Rule 23(b)(2) class action.

13

22. The class is so numerous that joinder of all members is impracticable. Plaintiffs do not know

14

the identities or exact number of all class members. Plaintiffs are informed and believe and thereon

15

allege that in excess of 500 persons were present at, or in the vicinity of, said demonstration and were

16

subjected to and/or threatened by the unlawful and unconstitutional actions of the OPD.

17

23. There are questions of law and fact common to all members of the class, because all class

18

members have been, or may be in the future, adversely affected by the challenged actions of the

19

defendants. Common questions of law and fact include, but are not limited to: whether OPD officers

20

were justified in using force on April 7, 2003, and if so, what degree of force was constitutionally

21

reasonable; whether the OPD and its officers have a policy or practice of using excessive force to

22

interfere with nonviolent expressive activities; and whether the City, the OPD and its supervisors fail to

23

properly train and supervise officers in the use of force during demonstrations and rallies.

24

24. The claims of the named demonstrator plaintiffs are typical of the claims of the class. The

25

claims of the class members arise from the same customs, policies or practices that have resulted in

26

damages to the class representatives and are based on the same legal theories.

27

25. The representative plaintiffs will fairly and adequately protect the interests of the class because

28

they are, and were, subject to the policies, customs and practices complained of herein, and have no

COMPLAINT

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1

interests antagonistic to other members of the class. In addition, plaintiffs' counsel are experienced in

2

litigating federal civil rights cases and class actions, including federal civil rights actions against the City

3

of Oakland and the OPD.

4

26. The defendants have acted and refused to act on grounds generally applicable to the class, and

5

injunctive and declaratory relief for the class as a whole is appropriate.

6

27. The prosecution of separate actions by individual members of the class would create a risk of

7

inconsistent or incompatible standards of conduct for the defendants, thereby making a class action the

8

superior method of adjudicating the controversy.

9

VI. STATEMENT OF FACTS

10

28. In late March, 2003, the United States government invaded Iraq. Thousands of people

11

participated in demonstrations and rallies in the San Francisco Bay Area to voice opposition to this war.

12

29. An antiwar demonstration was planned for April 7, 2003, at the Port of Oakland. The

13

demonstration was intended to focus on American President Lines (“APL”), which was under contract

14

with the United States military to ship weapons, and Stevedore Services of America (“SSA”), to which

15

the U.S. government had just granted the contract to operate Iraq’s main port of Umm Qasr. Some

16

participants planned to peacefully and nonviolently encourage workers and trucks to not enter the

17

marine container facilities by setting up picket lines at the entrances to the facilities and talking to truck

18

drivers, while others planned to peacefully and lawfully express their viewpoint against the war in the

19

vicinity with signs, banners and verbal opposition. Still others intended to observe and/or document the

20

demonstration and police response, including a number of legal observers, journalists, and independent

21

videographers and photographers.

22

30. On information and belief, prior to this demonstration, defendants gathered, maintained and

23

disseminated documents, information and intelligence concerning the demonstration, including, but not

24

limited to, information about the constitutionally protected speech and associational activities of

25

individuals and organizations involved in antiwar activities, including LOCAL 10 and its officers and

26

members, and the demonstrators. Such documents and information gathered and maintained by the

27

OPD included an anti-war internal newsletter of LOCAL 10, and email messages to an ILWU group

28

listserv concerning union support for anti-war protest activities among other union business matters.

COMPLAINT

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1

Defendants’ actions in gathering, maintaining and disseminating documents, information and

2

intelligence concerning the constitutionally protected speech and associational activities of plaintiffs was

3

overbroad, unnecessary and unjustified by any legitimate law enforcement purpose.

4

31. On information and belief, on or before April 7, 2003, defendants WORD, HAW, YEE, and/or

5

other commanders and supervisory officials of OPD and the CITY OF OAKLAND planned that the

6

police would bring an arsenal of weapons, including projectile and chemical weapons, which the OPD

7

and its officers knew would likely cause serious bodily injury to demonstrators. The OPD and its

8

officers nevertheless planned to quickly deploy these weapons to clear demonstrators from the vicinity

9

of the marine container facilities.

10

32. At various times on and before April 7, 2003, representatives of the OPD and CITY OF

11

OAKLAND held meetings and discussions with non-ILWU employees and representatives of APL,

12

SSA, and the Pacific Maritime Association (“PMA”), regarding the police response to the anticipated

13

anti-war demonstration.

14

33. On April 7, 2003, several hundred demonstrators gathered at the Port in the early morning

15

hours. Most arrived on BART or parked their vehicles near the West Oakland BART station, and

16

walked or were shuttled to the Port. Some set up picket lines at the gate entrances of the APL and SSA

17

Terminals, walking in circles carrying signs. Many others, including demonstrators, legal observers,

18

videographers, journalists and others, stood to the side of the road, on the shoulder or along the railroad

19

tracks.

20

34. At or around 6:00 a.m. on Monday, April 7, 2003, in excess of 20 LOCAL 10 members arrived

21

to report to work at the gate entrances of the APL Terminal in the Port of Oakland. Pursuant to

22

established contract procedures under the PCL&CA, the LOCAL 10 members, accompanied by several

23

LOCAL 10 officers, “stood by” outside the gate entrances of the SSA Terminal and the APL Terminal

24

to await the holding of a labor arbitration regarding whether LOCAL 10 members should or should not

25

enter the SSA Terminal or the APL Terminal in the face of the public anti-war demonstration as well as

26

the mass police presence. Most, if not all, of the LOCAL 10 members and officers at the scene

27

congregated as a group, physically separate from the demonstrators and the police at the gate entrances

28

COMPLAINT

9

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page10 of 24

1

of the SSA Terminal and the APL Terminal. At all material times, the LOCAL 10 officers and members

2

acted peacefully and lawfully.

3

35. Plaintiffs are informed and believe that at approximately 7:15 a.m., the police purported to give

4

a dispersal order to the demonstrators at one of the APL gates, but this order was inaudible to most and

5

unclear in informing the demonstrators what the police wanted them to do. The demonstrators

6

attempted to comply with the order and/or with police movements by clearing away from the gates, and

7

traffic proceeded through. The police formed skirmish lines which blocked the demonstrators and

8

observers from the direct route back to the West Oakland BART station and parking lot and refused to

9

let them through.

10

36. After the demonstrators had cleared away from the gate, at approximately 7:30 a.m., without

11

provocation or warning, OPD police officers, including defendants E. TRACEY, R. GUTIEREZ, A.

12

OERLEAMNS, R. HOLMGREN, P. GONZALES, and S. KNIGHT, began throwing “sting ball”

13

grenades filled with rubber pellets and tear gas, and firing guns which shot multiple wooden dowels and

14

“flexible baton rounds” (bean bags), at the peaceful demonstrators and observers. Also, OPD officers

15

ran motorcycles into the peaceful, fleeing demonstrators and observers, and hit them with clubs. OPD

16

officers continued chasing and shooting at the retreating crowd north on Middle Harbor Road toward the

17

SSA facilities for some minutes.

18

37. The police also purported to give an order to disperse to the peaceful picketers at the SSA gate

19

entrances. Again, this order was inaudible to many and unclear as to what the demonstrators and

20

observers were supposed to do. OPD officers, including defendants E. TRACEY, R. GUTIEREZ, A.

21

OERLEAMNS, R. HOLMGREN, P. GONZALES, and S. KNIGHT, opened fire at the peaceful

22

demonstrators and observers, and at the LOCAL 10 members and officers, shooting and striking them

23

with projectiles. The demonstrators and others attempted to leave the area by walking up Maritime

24

Road, the only avenue not blocked off by the police. Defendants pursued them, charging with

25

motorcycles, throwing grenades and shooting wooden dowels directly at the backs and heads of fleeing

26

demonstrators and others.

27

38. A number of people gathered at the intersection of Maritime and 7th Streets. Some were

28

peacefully picketing, some merely observing, while others attended to wounds or tried to determine how

COMPLAINT

10

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1

to get home. At approximately 9:00 a.m., OPD officers, including defendants E. TRACEY, R.

2

GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P. GONZALES, and S. KNIGHT, approached,

3

purported to give a dispersal order, again inaudible to many, and proceeded to open fire directly at the

4

picketers and others in the vicinity. This was approximately one and a half hours and more than a mile

5

in distance from when and where the projectiles were first fired.

6

39. OPD officers continued to herd the terrified demonstrators and observers down 7th Street

7

toward the BART station with their motorcycles.

8

40. Throughout the period from approximately 7:30 a.m. to approximately 9:00 a.m., additional

9

persons arrived in the vicinity to participate in or observe the antiwar demonstration. OPD officers,

10

including defendants E. TRACEY, R. GUTIEREZ, A. OERLEAMNS, R. HOLMGREN, P.

11

GONZALES, and S. KNIGHT, shot and threw projectiles at, and ran motorcycles into, these persons as

12

well, without provocation or warning, and regardless of whether these persons had been in the area when

13

any dispersal orders were given.

14

41. In protest of defendants’ use of excessive force at the Port demonstration and the Iraq war,

15

some of the demonstrators walked as a group from the BART area to the Oakland Federal Building.

16

OPD officers continued to pursue them in an intimidating fashion, periodically hitting demonstrators

17

with motorcycles and injuring them.

18

42. OPD officers, including defendants E. TRACEY, R. GUTIEREZ, A. OERLEAMNS, R.

19

HOLMGREN, P. GONZALES, and S. KNIGHT, aimed and fired projectiles such as wooden dowels,

20

”flexible batons” (bean bags), and sting ball grenades filled with rubber pellets and tear gas, directly at

21

plaintiffs’ heads, torsos, hands, arms and legs, in some cases from close range, despite their knowledge

22

that such use of the projectile weapons constituted potentially deadly force, and contrary to the

23

manufacturers’ warnings and instructions, including, but not limited to, the warning prominently printed

24

on each Federal Laboratories “Multiple Wood Baton Shell” used by defendants on April 7, 2003: “Do

25

not fire directly at persons as serious injury or death may result. Ricochet baton shell approximately

26

3 meters in front of persons.”

27

43. At no point did defendants give plaintiffs a clear order directing what they should do or where

28

they should go to avoid being shot or otherwise subjected to force.

COMPLAINT

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1

44. There was no probable cause or reasonable suspicion that the plaintiffs or any of the

2

demonstrators, observers or dockworkers, posed an immediate or credible threat of injury to the police

3

or any other person, and there were no facts that justified the force that the OPD and its officers directed

4

against the plaintiffs.

5

45. Plaintiffs are informed and believe that defendants directed force against the demonstrators for

6

the purpose of interfering with their First Amendment rights, and that defendants’ use of force was

7

motivated by the political content, message and viewpoint of the demonstrators, or by defendants’

8

perceptions of such.

9

46. Plaintiffs are informed and believe that defendants deliberately singled out and aimed their

10

weapons and otherwise directed force at legal observers; perceived demonstration leaders such as

11

persons who carried bullhorns; videographers and journalists who were holding camera equipment.

12

Plaintiffs are informed and believe that defendants’ use of force against these plaintiffs was motivated

13

and influenced by the political content and viewpoint of their message, and/or their acts of documenting

14

the police conduct and/or criticism of the police, and/or defendants’ perceptions of one or more of these

15

characteristics.

16

47. Plaintiffs are informed and believe that defendants deliberately singled out and aimed their

17

weapons and otherwise directed force at and engaged in the other conduct described herein against

18

plaintiff LOCAL 10 and its officers and members because of hostility, animus and discrimination

19

against the ILWU as an organization and against members and officers affiliated with the ILWU.

20

48. Plaintiffs are informed and believe that a total of at least 50 people were physically injured by

21

the police actions complained of herein.

22

23

VIII. ALLEGATIONS CONCERNING INDIVIDUAL PLAINTIFFS

24

49. On April 7, 2003, plaintiff BILLY KEPOO was a member of Local 10 of the ILWU and was

25

“standing by” with other union members to await an arbitrator’s decision as to whether they could cross

26

the demonstrators’ picket line and/or to be escorted into work by the police. The defendants, without

27

legal justification or reasonable cause, caused him to be shot in the hand with a projectile, fracturing his

28

thumb.

COMPLAINT

12

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page13 of 24

1

50. On April 7, 2003, while plaintiff ALLEN CHAPMAN, a member of Local 10 of the ILWU,

2

was “standing by” with other union members, the defendants, without legal justification or reasonable

3

cause, caused him to be shot with projectiles in the lower left back, inner left thigh, and on the left side.

4

51. On April 7, 2003, while plaintiff CHRISTOPHER CLAY, a member of Local 10 of the ILWU,

5

was “standing by” with other union members, the defendants, without legal justification or reasonable

6

cause, caused him to be shot with projectiles on the right hamstring and on his back near the right

7

shoulder.

8

52. On April 7, 2003, while plaintiff SILAS DUNN, a member of Local 10 of the ILWU, was

9

“standing by” with other union members, the defendants, without legal justification or reasonable cause,

10

caused him to be shot with projectiles, including in the right lower abdomen, left side abdomen, in the

11

arm and in the back of the leg.

12

53. On April 7, 2003, while plaintiff WILLIE HAMLIN, a member of Local 10 of the ILWU, was

13

“standing by” with other union members, the defendants, without legal justification or reasonable cause,

14

caused him to be shot with a projectile on the back of his right hamstring area.

15

54. On April 7, 2003, while plaintiff ERNEST EVANS, a member of Local 10 of the ILWU, was

16

“standing by” with other union members, the defendants, without legal justification or reasonable cause,

17

caused him to be shot with a projectile in the back.

18

55. On April 7, 2003, while plaintiff DAVID LOVILLE, a member of Local 10 of the ILWU, was

19

“standing by” with other union members, the defendants, without legal justification or reasonable cause,

20

caused him to be shot with a projectile in the right buttock and damaged his automobile with a

21

concussion grenade.

22

56. On April 7, 2003, while plaintiff LAWRENCE MASSEY, a member of Local 10 of the ILWU,

23

was “standing by” with other union members, the defendants, without legal justification or reasonable

24

cause, caused him to be shot with projectiles in the back and buttocks.

25

57. On April 7, 2003, plaintiff BYRON MOORE, SR., a member of Local 10 of the ILWU, was

26

“standing by” with other union members. When plaintiff MOORE realized the police were shooting in

27

the vicinity, he attempted to go to his car with the intention of immediately leaving the area. As plaintiff

28

MOORE was attempting to go to his car, the defendants, without legal justification or reasonable cause,

COMPLAINT

13

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page14 of 24

1

caused him to be shot with a projectile in the back near his right shoulder and damaged his vehicle with

2

a projectile.

3

58. On April 7, 2003, plaintiff JOHN NISHINAGA was attending the April 7th demonstration

4

when defendants, without legal justification or reasonable cause, caused him to be struck by a

5

motorcycle and subsequently shot him with a projectile fired directly at him, fracturing his hand.

6

59. On April 7, 2003, plaintiff WILLOW ROSENTHAL was attending the demonstration when

7

defendants, without legal justification or reasonable cause, caused her to be shot in the leg as she fled,

8

resulting in an injury which has necessitated surgery and will likely leave permanent scarring and

9

disfigurement.

10

60. On April 7, 2003, plaintiff JESSICA LAWRENCE was attending and videotaping the

11

demonstration when defendants, without legal justification or reasonable cause, caused her to be shot in

12

the thigh with a wooden dowel.

13

61. On April 7, 2003, plaintiff SCOTT P. FLEMING was attending the demonstration when

14

defendants, without legal justification or reasonable cause, caused him to be shot five times in the back,

15

shoulder, and under his arm with wooden dowels fired directly at him as he fled.

16

62. On April 7, 2003, plaintiff JENNIFER SCHOCKEMOEHL was attending the demonstration

17

when defendants, without legal justification or reasonable cause, caused her to be shot in the back with a

18

projectile.

19

63. On April 7, 2003, plaintiff JEFFERY CROW BOLT was attending the demonstration when

20

defendants, without legal justification or reasonable cause, caused him to be repeatedly struck and run

21

over by motorcycles and to be repeatedly shot with projectiles, which hit him in numerous places

22

including the arm, buttocks and upper body.

23

64. On April 7, 2003, plaintiff MATTHEW DODT was attending the demonstration when

24

defendants, without legal justification or reasonable cause, caused him to be repeatedly struck by a

25

motorcycle, and, as he was attempting to leave the area, caused him to be shot with projectiles which

26

struck him in the torso and hand.

27

65. On April 7, 2003, plaintiff REBECCA SONCHEK was attending the demonstration and

28

walking with other demonstrators on the sidewalk toward the Oakland Federal Building, when

COMPLAINT

14

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page15 of 24

1

defendants, without legal justification or reasonable cause, caused her to be struck twice with a police

2

club.

3

66. On April 7, 2003, plaintiff TERRENCE ENRIGHT was attending and videotaping the

4

demonstration when defendants, without legal justification or reasonable cause, caused him to be struck

5

with a police club and shot in the chest and leg with projectiles.

6

67. On April 7, 2003, plaintiff ARTHUR MARTINEZ was attending the demonstration when

7

defendants, without legal justification or reasonable cause, caused him to be shot in the leg with a

8

projectile.

9

68. On April 7, 2003, plaintiff LAWRENCE MENARD was attending the demonstration when

10

defendants, without legal justification or reasonable cause, caused a “sting ball” grenade or similar

11

object to explode with deafening noise and released tear gas and/or other chemical agents in close

12

proximity to his head.

13

69. On April 7, 2003, plaintiff HENRY NORR was attending the demonstration when defendants,

14

without legal justification or reasonable cause, caused him to be shot with a projectile in the leg.

15

70. On April 7, 2003, plaintiff STEVEN SAKALA was attending the demonstration when

16

defendants, without legal justification or reasonable cause, caused him to be choked, shot with

17

projectiles in the back, and exposed to tear gas and/or another chemical agents.

18

71. On April 7, 2003, plaintiff SUSAN QUINLAN was attending the demonstration when

19

defendants, without legal justification or reasonable cause, caused her to be shot with projectiles in the

20

arm and leg, and exposed to tear gas or other chemical agent.

21

72. On April 7, 2003, Plaintiff TIM RIDOLFI was attending and acting as a clearly identified legal

22

observer at the demonstration, when defendants, without legal justification or reasonable cause, caused

23

him to be shot with a projectile which struck him in the head.

24

73. On April 7, 2003, plaintiff ALICIA GROGAN-BROWN was attending the demonstration

25

when defendants, without legal justification or reasonable cause, caused her to be shot in the arm with a

26

projectile.

27

28

COMPLAINT

15

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page16 of 24

1

74. On April 7, 2003, plaintiff KENNETH HAYES was attending the demonstration when, as he

2

was attempting to leave the area, defendants, without legal justification or reasonable cause, caused him

3

to be shot in the foot with a projectile.

4

75. On April 7, 2003, plaintiff DEAN ROYER was attending and acting as a clearly identified

5

legal observer at the demonstration, when, as he was attempting to leave the area, defendants, without

6

legal justification or reasonable cause, caused him to be shot in the leg with a projectile.

7

76. On April 7, 2003, plaintiff BERNADINE MELLIS was attending the demonstration when, as

8

she was attempting to leave the area, defendants, without legal justification or reasonable cause, caused

9

her to be struck in the back of her shoulder by a projectile.

10

77. On April 7, 2003, plaintiff THOMAS BECKER was attending the demonstration when, as

11

plaintiff BECKER was attempting to flee, defendants, without legal justification or reasonable cause,

12

caused him to be shot in the leg with a projectile.

13

78. On April 7, 2003, plaintiff PATRICIA “MAX” RORTY was attending and acting as a clearly

14

identified legal observer at the demonstration, when, as she was walking on the side of the road,

15

defendants, including defendant M. RANDALL, without legal justification or reasonable cause, caused

16

her to be struck with a motorcycle, running over her foot.

17

79. On April 7, 2003, plaintiff JESSE CHRISTENSEN was attending the demonstration when

18

defendants, without legal justification or reasonable cause, caused him to be struck repeatedly in the

19

chest and other parts of his body with projectiles.

20

80. On April 7, 2003, plaintiff DIANA BOHN was attending the demonstration when, as she was

21

attempting to leave the area, defendants, without legal justification or reasonable cause, caused her to be

22

struck in the back with a projectile.

23

81. On April 7, 2003, plaintiff MILES MONTABANO was attending and acting as a videographer

24

in the vicinity of the demonstration when, as he was videotaping a woman being shot, defendants,

25

including the officer who had just shot the woman he was videotaping, without legal justification or

26

reasonable cause, caused plaintiff MONTABANO to be shot with a projectile, which struck him in the

27

arm he was using to hold the video camera.

28

COMPLAINT

16

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page17 of 24

1

82. On April 7, 2003, plaintiff NICHOLAS FRABASILIO was attending the demonstration when,

2

as he was attempting to flee, defendants, without legal justification or reasonable cause, caused a “sting

3

ball” grenade or other projectile containing tear gas or other chemical agent to explode at his feet,

4

enveloping him in a cloud of such gas.

5

83. On April 7, 2003, plaintiff CYPRUS GONZALEZ was attending the demonstration when, as

6

he was attempting to flee, defendants, without legal justification or reasonable cause, caused him to be

7

struck in the back by a projectile.

8

84. On April 7, 2003, plaintiff KRISTIN MEEKER was attending the demonstration when, as she

9

was attempting to leave the area, defendants, without legal justification or reasonable cause, caused her

10

be struck repeatedly by a motorcycle.

11

85. On April 7, 2003, plaintiff ERIC SHAW was attending the demonstration and attempting to

12

walk away when defendants, without legal justification or reasonable cause, caused him to be struck

13

with a projectile in the calf.

14

86. On April 7, 2003, plaintiff VIOLETA FOREGGER was attending the demonstration and

15

attempting to walk away when defendants, without legal justification or reasonable cause, caused her to

16

be struck with a projectile in the buttock.

17

87. On April 7, 2003, plaintiff CHELSEA SMITH was attending the demonstration and attempting

18

to walk away when she was shot in the leg with a projectile without legal justification or reasonable

19

cause.

20

88. On April 7, 2003, plaintiff AIDAN KOTLER was attending the demonstration when

21

defendants, without legal justification or reasonable cause, caused him to be exposed to tear gas or other

22

chemical agent, and to be struck twice with projectiles. The second impact, in plaintiff’s back as he ran

23

away, destroyed personal property in plaintiff’s backpack.

24

25

IX. REQUISITES FOR RELIEF

26

89. Plaintiffs are informed and believe that the violations of the plaintiffs’ constitutional and lawful

27

rights complained of herein were caused by customs, policies, directives, practices, acts and omissions

28

of authorized policy makers of the defendant CITY OF OAKLAND, including defendants WORD,

COMPLAINT

17

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1

HAW and other supervisory officials of the OPD and the City of Oakland, which encouraged,

2

authorized, directed, condoned, and ratified the unconstitutional and unlawful conduct complained of

3

herein. Said customs, policies and practices include, but are not limited to the use of excessive and/or

4

arbitrary force to disperse and control demonstrators and others involved in expressive activities; the

5

failure to maintain adequate policies, and to adequately train, supervise and control OPD officers,

6

concerning the policing of demonstrations and other expressive activities with respect to crowd control,

7

crowd dispersal and the constitutional limitations on the use of force; and the failure to investigate and

8

impose discipline on OPD officers involved in the unconstitutional and unlawful actions complained of

9

herein, and/or to adopt other remedial measures and policies to insure that such violations of legal rights

10

would not recur.

11

90. As a direct and proximate result of the conduct of defendants described herein, the named

12

individual plaintiffs have been denied their constitutional, statutory and legal rights as stated below, and

13

have suffered, continue to suffer and will in the future suffer general and special damages, including but

14

not limited to, mental and emotional distress, physical injuries and bodily harm, pain, fear, humiliation,

15

embarrassment, discomfort, and anxiety, medical and related expenses, and lost earnings in an amount

16

according to proof.

17

91. Defendants’ acts were willful, wanton, malicious and oppressive and done with conscious

18

disregard and deliberate indifference for plaintiffs’ rights.

19

92. Defendants’ policies, practices, customs, conduct and acts alleged herein have resulted and will

20

continue to result in irreparable injury to plaintiffs, including but not limited to violations of their

21

constitutional and statutory rights. Plaintiffs have no plain, adequate or complete remedy at law to

22

address the wrongs described herein. The demonstrator plaintiffs and class members intend in the future

23

to exercise their constitutional rights of freedom of speech and association by engaging in

24

demonstrations and expressive activities in the vicinity of the Port of Oakland and in other public places

25

in the City of Oakland. Defendants’ conduct described herein has created fear, anxiety and uncertainty

26

among plaintiffs with respect to their exercise now and in the future of these constitutional rights, and

27

with respect to their physical security and safety. Defendants’ conduct described herein has also created

28

fear, anxiety and uncertainty among members and officers of LOCAL 10 with respect to their exercise

COMPLAINT

18

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1

of their associational and organizational activities and with the right to work and move freely about the

2

public streets, without being subject to excessive force by the OPD, and with their physical security and

3

safety. Plaintiffs therefore seek injunctive relief from this court, to ensure that plaintiffs and persons

4

similarly situated will not suffer violations of their rights from defendants’ illegal and unconstitutional

5

policies, customs and practices as described herein.

6

93. An actual controversy exists between plaintiffs and defendants in that plaintiffs contend that

7

the policies, practices and conduct of defendants alleged herein are unlawful and unconstitutional,

8

whereas plaintiffs are informed and believe that defendants contend that said policies, practices and

9

conduct are lawful and constitutional. Plaintiffs seek a declaration of rights with respect to this

10

controversy.

11 X. CLAIMS FOR RELIEF

12

FIRST CLAIM FOR RELIEF

13

Violation Of First And Fourteenth Amendments To The United States Constitution

14

(42 U.S.C. § 1983)

15

94. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

16

95. Defendants’ above-described conduct violated plaintiffs’ rights to freedom of speech and

17

association under the First and Fourteenth Amendments to the United States Constitution.

18 SECOND CLAIM FOR RELIEF
19 Violation Of Fourth And Fourteenth Amendments To United States Constitution
20 (42 U.S.C. § 1983)
21 96. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.
22 97. Defendants’ above-described conduct violated plaintiffs’ rights to be free from unreasonable
23 seizures and excessive and/or arbitrary force under the Fourth and Fourteenth Amendments to the
24 United States Constitution.
25

26

27

28

COMPLAINT

19

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page20 of 24

1

THIRD CLAIM FOR RELIEF

2

Violation Of Fourteenth Amendment To United States Constitution

(42 U.S.C. § 1983) 3

4

98. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

99. Defendants’ above-described conduct violated plaintiffs’ right to not be deprived of liberty 5

6

without due process of law under the Fourteenth Amendment to the United States Constitution.

7

FOURTH CLAIM FOR RELIEF

8

Violation Of Fourteenth Amendment To United States Constitution

9

(42 U.S.C. § 1983)

10

100. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

11

101. Defendants’ above-described conduct violated plaintiffs’ rights to equal protection of the

12

laws under the Fourteenth Amendment to the United States Constitution.

13

FIFTH CLAIM FOR RELIEF

14

Violation of California Constitution, Article I, §§ 2 and 3

15

102. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

16

103. Defendants’ above-described conduct violated plaintiffs’ rights to freedom of speech and

17

association, and to petition the government for redress of grievances, under article I, sections 2 and 3 of

18

the California Constitution.

19

SIXTH CLAIM FOR RELIEF

20

Violation of California Constitution, Article I, § 13

21

104. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

22

105. Defendants’ above-described conduct violated plaintiffs’ right to be free from unreasonable

23

seizures and excessive and/or arbitrary force under article I, section 13 of the California Constitution.

24 SEVENTH CLAIM FOR RELIEF
25 Violation of California Constitution, Article 1, § 7(A)
26 106. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.
27

28

COMPLAINT

20

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1

107. Defendants’ above-described conduct violated plaintiffs’ right not to be deprived of liberty

2

without due process of law under article 1, section 7(a) of the California Constitution.

3 EIGHTH CLAIM FOR RELIEF

4

Violation of California Constitution, Article 1, § 7(A)

5

108. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

6

109. Defendants’ above-described conduct violated plaintiffs’ right to equal protection of the laws

7

under article 1, section 7(a) of the California Constitution.

8 NINTH CLAIM FOR RELIEF
9 Violation of California Constitution, Article 1, § 1
10 110. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.
11 111. Defendants’ above-described conduct violated plaintiffs’ right to informational privacy under
12 article I, section 1 of the California Constitution.
13

14

TENTH CLAIM FOR RELIEF

Violation of California Civil Code § 51.7 15

112. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint. 16
113. Defendants’ above-described conduct violated plaintiffs’ right to be free from violence and 17

intimidation by threat of violence because of their actual or perceived political affiliation and/or 18
viewpoint and/or position in a labor dispute, in violation of California Civil Code section 51.7. 19

20

ELEVENTH CLAIM FOR RELIEF

21

Violation of California Civil Code § 52.1

22

114. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

23

115. Defendants’ above-described conduct constituted interference, and attempted interference, by

24

threats, intimidation and coercion, with plaintiffs’ peaceable exercise and enjoyment of rights secured by

25

the Constitution and laws of the United States and the State of California, in violation of California Civil

26

Code section 52.1.

27

28

COMPLAINT

21

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page22 of 24

1

TWELFTH CLAIM FOR RELIEF

2

Assault And Battery

116. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint. 3

4

117. Defendants’ above-described conduct constituted assault and battery on the named individual

plaintiffs. 5

6

THIRTEENTH CLAIM FOR RELIEF 7

8

Intentional Infliction Of Emotional Distress

118. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint. 9

10

119. Defendants' above-described conduct was extreme, unreasonable and outrageous.

120. In engaging in the above-described conduct, defendants intentionally ignored or recklessly 11

12

disregarded the forseeable risk that the named individual plaintiffs would suffer extreme emotional

distress as a result of defendants' conduct. 13

14

FOURTEENTH CLAIM FOR RELIEF

15

Negligence

16

121. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 93 of this complaint.

17

122. Defendants have a duty of care to plaintiffs to ensure that defendants did not cause

18

unnecessary or unjustified harm to the named individual plaintiffs and a duty of care to hire, train,

19

supervise and discipline OPD officers so as to not cause harm to plaintiffs and to prevent violations of

20

plaintiffs’ constitutional, statutory and common law rights.

21

123. The above-described acts and omissions of defendants breached the duty of care defendants

22

owed to the named individual plaintiffs.

23

XI. PRAYER

24

WHEREFORE, plaintiffs pray for judgment against defendants, and each of them, as follows:

25

1. For an order certifying the class defined herein pursuant to Federal Rules of Civil Procedure

26

Rule 23(b)(2);

27

2. For preliminary and permanent injunctive relief restraining defendants from engaging in the

28

unlawful and unconstitutional actions complained of above;

COMPLAINT

22

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page23 of 24

1

3. For a declaratory judgment that defendants’ conduct complained of herein was a violation of

2

plaintiffs’ rights under the Constitution and laws of the United States and California;

3

4. For the individual named plaintiffs, general and compensatory damages to be determined

4

according to proof;

5

5. For the individual named plaintiffs, special damages, including but not limited to medical and

6

related expenses, wage loss and/or damage to career; interruption and/or interference with school and/or

7

internship and/or similar pursuits;

8

6. For punitive and exemplary damages in amounts to be determined according to proof as to the

9

individual defendants;

10

7. For an award of statutory damages and penalties pursuant to Cal. Civil Code section 52(b);

11

8. For attorneys' fees pursuant to 42 U.S.C. § 1988 and California Civil Code section 52(b) and

12

section 52.1(h), and California Code of Civil Procedure section 1021.5;

13

9. For costs of suit;

14

10. For pre- and post-judgment interest as permitted by law;

15

11. For such other and further relief as the Court may deem just and proper.

16

JURY TRIAL DEMAND

17

Plaintiffs hereby demand a jury trial.

18

DATED: June 26, 2003

19

20

21

22

23

24

25

26

JAMES B. CHANIN JULIE M. HOUK LAW OFFICES OF JAMES B. CHANIN
JOHN L. BURRIS
RACHEL LEDERMAN NATIONAL LAWYERS GUILD and Law Offices of Rachel Lederman and Alexsis C. Beach
ALAN L. SCHLOSSER JULIA HARUMI MASS MARK SCHLOSBERG AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

27

BOBBIE STEIN

28

COMPLAINT

23

Case3:03-cv-02962-TEH Document1 Filed06/26/03 Page24 of 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT

OSHA NEUMANN ROB REMAR LEONARD CARDER LLP By Alan L. Schlosser Attorneys for Plaintiffs
24

 
 Case3:03-cv-02961 Document115 Filed09/27/05 Page1 of 13

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 SRI LOUISE COLES, et al.,

5

Plaintiffs,

6

v.

7 CITY OF OAKLAND, et al.,

8

Defendants.

9

NO. C03-2961 TEH
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR ATTORNEYS’ FEES

10 LOCAL 10, INTERNATIONAL LONGSHORE AND WAREHOUSE
11 UNION, et al.,

12

Plaintiffs,

13

v.

14 CITY OF OAKLAND, et al.,

15

Defendants.

16

NO. C03-2962 TEH

17

These matters come before the Court on Plaintiffs’ motions for attorneys’ fees. After

18 carefully considering the record in these cases and the parties’ written arguments, including

19 the parties’ statements of recent decisions, the Court determined that oral argument was

20 unnecessary and cancelled the motion hearing scheduled for September 19, 2005. For the

21 reasons discussed below, the Court concludes that Plaintiffs are entitled to attorneys’ fees

22 and costs under both federal and state law. Because Defendants so heavily disputed

23 Plaintiffs’ entitlement to fees, the Court is optimistic that the parties may be able to reach

24 agreement on the amount of fees now that Plaintiffs’ entitlement has been established by the

25 Court. To facilitate the parties’ discussions, the Court refers these cases to Magistrate Judge

26 James Larson for a mandatory settlement conference on the amount of fees and costs to be

27 awarded to Plaintiffs for work on their injunctive and declaratory relief claims. Accordingly,

28 Plaintiffs’ motions for attorneys’ fees are hereby GRANTED IN PART and DENIED IN

Case3:03-cv-02961 Document115 Filed09/27/05 Page2 of 13

United States District Court For the Northern District of California

1 PART, without prejudice to Plaintiffs’ returning to this Court for a judicial determination of

2 the amount of fees and costs to be awarded should the parties fail to reach agreement.

3

4 BACKGROUND

5

These cases arise from an April 7, 2003 antiwar demonstration at the Port of Oakland.

6 Plaintiffs are demonstrators, legal observers, videographers, journalists, and dockworkers

7 who allege that Oakland police officers used excessive force at various times throughout the

8 demonstration. Plaintiffs allege violations of their First, Fourth, and Fourteenth Amendment

9 rights under the United States Constitution, as well as violations of various California

10 constitutional and statutory provisions.

11

On December 20, 2004, the parties submitted to the Court a signed stipulation and

12 proposed order approving partial settlement of Plaintiffs’ claims for injunctive and

13 declaratory relief. Ex. A to Chanin Decl. The Court signed the order on December 24, 2004,

14 and the order was filed on December 28, 2004. The settlement included as an exhibit a new

15 Oakland Police Department Crowd Control/Crowd Management Policy, which was approved

16 by former Police Chief Richard Word on November 9, 2004. According to the parties’

17 stipulation, “[t]his Policy was the result of over ten months of difficult, comprehensive and

18 non-collusive negotiations between the parties,” and the parties have agreed to the policy “as 19 the basis for a partial settlement of this case.” Id. at 4. Defendants agreed to the partial

20 settlement without admitting liability, and Plaintiffs in both cases agreed to dismiss their 21 claims for injunctive and declaratory relief. Id. at 5. The parties further agreed to meet and

22 confer regarding a number of issues, including Defendants’ proposed training program under

23 the new crowd control policy, the development of related policy and training documents, and 24 any material changes to the terms of the policy. Id. at 5-6. The Court retained jurisdiction

25 over both cases for a three-year period, commencing on December 28, 2004, “to enforce the

26 terms of this settlement, to resolve any disputes that may arise between the parties

27 concerning this settlement or the related matters on which the parties agree to meet and

28 confer as set forth in the parties’ stipulation, and if necessary, to resolve Plaintiffs’ claims for

2

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United States District Court For the Northern District of California

1 attorneys’ fees and costs.” Id. at 8. The stipulation further provides that “any party may

2 move the court to extend the time [during which this Court retains jurisdiction] for up to an 3 additional 24 months if there is a material breach of the terms of this Stipulation.” Id. at 6.

4

In addition, the parties agreed in the stipulation to a procedure for resolving Plaintiffs’

5 claims for attorneys’ fees, including a provision that, if the parties were unable to resolve

6 Plaintiffs’ claims informally, Plaintiffs would file a motion for attorneys’ fees and costs with 7 this Court. Id. Having failed to reach agreement with Defendants, Plaintiffs in both cases

8 have now filed separate motions for attorneys’ fees and costs. Plaintiffs claim only fees and

9 costs related to the settlement of their injunctive and declaratory relief claims and

10 acknowledge that they are not currently entitled to fees and costs for time spent solely on

11 Plaintiffs’ claims for damages. This Court addresses both motions simultaneously because of

12 the significant overlap in factual and legal argument presented by the motions.

13

The Coles plaintiffs, represented by Michael Haddad, Julia Sherwin, and fees counsel

14 Richard Pearl, request a total award of $312,564.81. This includes a lodestar on the merits of

15 $130,448, with a requested enhancement of 1.5 (for a total of $195,672); a lodestar on fees of

16 $94,183.75, with a requested enhancement of 1.1 (for a total of $103,602.13); and

17 $13,290.68 in costs.

18

The Local 10 plaintiffs, represented by James Chanin, Julie Houk, John Burris, Rachel

19 Lederman, Alan Schlosser, Mark Schlosberg, Julia Moss, Bobbie Stein, Osha Neumann, and

20 Robert Remar, seek a total award of $776,998.66. This includes a lodestar on the merits of

21 $415,643.85, with a requested enhancement of 1.5 (for a total of $623,465.77); a lodestar on

22 fees of $135,056.25, with a requested enhancement of 1.1 (for a total of $148,561.88); and

23 $4971.01 in costs.

24

25 DISCUSSION

26 I. Entitlement to Fees and Costs

27

Plaintiffs contend that they are entitled to fees and costs under 42 U.S.C. § 1988,

28 California Code of Civil Procedure section 1021.5, and California Civil Code sections

3

Case3:03-cv-02961 Document115 Filed09/27/05 Page4 of 13

United States District Court For the Northern District of California

1 52(b)(3) and 52.1(h). Defendants dispute Plaintiffs’ entitlement under all of these provisions

2 and also argue that the plaintiffs who have resolved their individual claims for damages

3 waived any entitlement to attorneys’ fees they might have had. The Court first addresses

4 Defendants’ waiver argument before analyzing whether Plaintiffs are entitled to attorneys’

5 fees under federal and state law.

6

A.

Waiver Issue

7

Defendants argue that the majority of plaintiffs have resolved their individual claims

8 for damages and, in so doing, have waived their right to attorneys’ fees. Several plaintiffs

9 accepted Rule 68 offers of judgment which included a provision that the amount paid by

10 Defendants “shall include any liability for costs of suit and attorney fees accrued through the 11 date of this offer.” E.g., Ex. 11 to Chanin Reply Decl. (Rule 68 offer to Plaintiff Kristin

12 Meeker). However, Defendants’ counsel clearly stated at the deposition of Plaintiff Dave

13 Telles that the Rule 68 offers were not intended to have any effect on claims for attorneys’

14 fees related to injunctive and declaratory relief and instead only dealt with the then-pending

15 claims for damages. Ex. 13 to Chanin Reply Decl. at 4:13-5:17. Thus, Defendants cannot

16 now claim that they intended the Rule 68 offers to include a waiver of fees related to

17 Plaintiffs’ injunctive and declaratory relief claims.

18

Other plaintiffs signed settlement agreements that included language stating that, “The

19 undersigned hereby understand, acknowledge and agrees [sic] to the special conditions that

20 follow: . . . c) Each party shall bear its own attorneys’ fees and costs regarding the entire 21 Lawsuit.” E.g., Ex. A to Helfrich Decl. at 3 (settlement agreement signed by Plaintiff

22 Rebecca Sonchek). The settlement agreements also included a statement that the

23 agreements’ terms “are contractual and not mere recitals. The only exception is with regard

24 to the stipulation and order between plaintiff’s counsel, the City of Oakland and the Court 25 regarding the declaratory and injunctive relief cause of action and prayer in the Lawsuit.” Id.

26 at 4-5. Even though the agreement states that “[e]ach party shall bear its own attorneys’ fees

27 and costs regarding the entire Lawsuit,” that statement must be read in context with the entire

28 agreement and the context of these cases. Given that the agreements specifically carved out

4

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United States District Court For the Northern District of California

1 as an exception the stipulation and order regarding injunctive relief, that the stipulation and

2 order included a provision by which Plaintiffs’ request for fees related to the injunctive relief

3 claims would be resolved, that the individually signed settlement agreements as a whole are

4 concerned only with individual claims for damages and not claims for injunctive relief, and

5 that Defendants did not intend the Rule 68 offers of judgment to bar claims for attorneys’

6 fees related to the injunctive relief claims, the statement about each party bearing its own

7 fees and costs is not clear or unambiguous. The Court therefore does not find that the

8 settlement agreements on individual damages claims waived Plaintiffs’ right to recover

9 attorneys’ fees for work done on their previously settled injunctive relief claims.1

10

B.

Entitlement to Fees Under Federal Law

11

Under 42 U.S.C. § 1988(b), a court may award a “reasonable attorney’s fee as part of

12 the costs” to the “prevailing party” in an action, such as this one, brought to enforce civil

13 rights under 42 U.S.C. § 1983. Prior to 2001, the Ninth Circuit allowed a plaintiff to obtain

14 attorneys’ fees “if his action was a ‘catalyst’ which motivated the defendant to provide the

15 relief originally sought through litigation,” even if the plaintiff failed to obtain a judgment on 16 the merits against the defendant. Beach v. Smith, 743 F.2d 1303, 1306 (9th Cir. 1984).

17 However, in 2001, the Supreme Court rejected the catalyst theory when it held that “[a]

18 defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff 19 sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change” to 20 allow an award of attorneys’ fees. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t 21 of Health & Human Res., 532 U.S. 598, 605 (2001); see Bennett v. Yoshina, 259 F.3d 1097, 22 1101 (9th Cir. 2001) (applying Buckhannon to § 1988 requests for attorneys’ fees). Under 23 Buckhannon, 532 U.S. at 604-05, attorneys’ fees are proper only where the plaintiff has

24

25

1Moreover, even if the plaintiffs who signed settlement agreements waived their right to attorneys’ fees, that would not eliminate Plaintiffs’ entitlement to fees because not all

26

plaintiffs signed such agreements. Nor would it result in the percentage reduction proposed by Defendants because there is no evidence that the work performed by Plaintiffs’ counsel on

27

the injunctive and declaratory relief claims would have decreased proportionally with fewer plaintiffs. For example, time spent drafting, revising, and negotiating language in the revised

28

crowd control policy would likely have been spent regardless of the number of individual plaintiffs in the case.

5

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United States District Court For the Northern District of California

1 obtained a court-ordered change in the legal relationship between the parties. Thus,

2 “settlement agreements enforced through a consent decree may serve as the basis for an

3 award of attorney’s fees,” even though “a consent decree does not always include an 4 admission of liability by the defendant.” Id. at 604.

5

The Ninth Circuit has explained that a legally enforceable settlement agreement

6 materially changes the legal relationship between the parties “because the plaintiff can force 7 the defendant to do something he otherwise would not have to do.” Fischer v. SJB-P.D. Inc., 8 214 F.3d 1115, 1118 (9th Cir. 2000) (cited with authority in Barrios v. Cal. Interscholastic 9 Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002)). The court rejected “dictum” in Buckhannon

10 “suggest[ing] that a plaintiff ‘prevails’ only when he or she receives a favorable judgment on 11 the merits or enters into a court-supervised consent decree.” Barrios, 277 F.3d at 1134 n.5.

12 Instead, the Ninth Circuit has held that a plaintiff who obtains a “legally enforceable

13 settlement agreement” in which the district court retains jurisdiction has “obtained a

14 ‘”judicial imprimatur’ that alters the legal relationship of the parties,’ as required by 15 Buckhannon.” Richard S. v. Dep’t of Developmental Serv., 317 F.3d 1080, 1088 (9th Cir.

16 2003) (citation omitted). More to the point, the court has explicitly held “that a plaintiff who

17 succeeds in obtaining a court order incorporating an agreement that includes relief the

18 plaintiff sought in the lawsuit is not a mere catalyst – he is a prevailing party for attorney’s 19 fees purposes.” Labotest, Inc. v Bonta, 297 F.3d 892, 893 (9th Cir. 2002).

20

Under these precedents, Plaintiffs in these cases are clearly prevailing parties. Like

21 the settlement agreements found by the Ninth Circuit to create an entitlement to attorneys’

22 fees, the settlement in these cases includes relief Plaintiffs sought in their lawsuits – namely,

23 injunctive relief regarding the use of force in crowd situations. Moreover, the settlement

24 agreement was not a private settlement; to the contrary, this Court approved the settlement as

25 an order of the Court. That order provided that the Court would retain jurisdiction to enforce

26 the agreement for a period of three years, with the possibility of a two-year extension if there

27 is a material breach of the agreement, and that the Court would retain jurisdiction to decide

28

6

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United States District Court For the Northern District of California

1 Plaintiffs’ requests for attorneys’ fees. This is sufficient to confer “prevailing party” status

2 on Plaintiffs with respect to their injunctive and declaratory relief claims.

3

Defendants further argue that, even if Plaintiffs are prevailing parties, special

4 circumstances warrant a denial of fees in these cases. A prevailing party in a § 1983 action

5 “should ordinarily recover an attorney’s fee unless special circumstances would render such 6 an award unjust.” Bauer v. Sampson, 261 F.3d 775, 785 (9th Cir. 2001) (citation omitted).

7 The Ninth Circuit has adopted the following two-pronged test for evaluating whether special

8 circumstances warrant a denial of fees: “(1) whether allowing attorney fees would further the

9 purposes of § 1988 and (2) whether the balance of the equities favors or disfavors the denial 10 of fees.” Gilbrook v. City of Westminster, 177 F.3d 839, 878 (9th Cir. 1999). “The

11 defendant has the burden of showing special circumstances warrant a denial of fees, and the 12 defendant’s showing must be a strong one.” Herrington v. County of Sonoma, 883 F.2d 739,

13 744 (9th Cir. 1989) (citations omitted).

14

Upon consideration, the Court finds that Defendants have failed to meet their burden.

15 First, “[t]he congressional purpose in providing attorney’s fees in civil rights cases was to

16 eliminate financial barriers to the vindication of constitutional rights and to stimulate 17 voluntary compliance with the law.” Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d 1338,

18 1348 (9th Cir. 1980) (citation omitted). Defendants dispute that awarding fees in these cases

19 is unnecessary to further the purpose of eliminating financial barriers to the vindication of

20 constitutional rights because no fees were needed to attract competent counsel. However, it

21 is highly likely that so many attorneys were willing to take these cases (and civil rights cases

22 generally) because of the availability of attorneys’ fees to prevailing parties. Defendants

23 have made no showing that Plaintiffs would have been able to obtain competent

24 representation in the absence of fee-shifting statutes.

25

Additionally, Defendants contend that a fees award would discourage voluntary

26 compliance with the law. However, although Defendants initiated an internal review of their

27 crowd control policies prior to the filing of these lawsuits, they failed to respond to citizen

28 complaints filed before the litigation began. Nor did Defendants invite the complainants or

7

Case3:03-cv-02961 Document115 Filed09/27/05 Page8 of 13

United States District Court For the Northern District of California

1 their counsel to discuss the City’s crowd control policy prior to the onset of litigation. In

2 addition, Defendants’ proposed policy differs markedly from the final result, achieved after

3 what Defendants acknowledge in the settlement agreement was over ten months of difficult

4 and comprehensive negotiations between the parties. Thus, even if Defendants unilaterally

5 began the process of reviewing and revising their crowd control policies, the filing of these

6 lawsuits to enforce Plaintiffs’ civil rights, and the involvement of Plaintiffs’ counsel in

7 negotiating the language of the revised policies, had significant effects on the outcomes of

8 that process. There is no indication that the same results would have been achieved in the

9 absence of litigation, or even that the internal review would ultimately have resulted in a

10 revised policy at all. Voluntarily reviewing a policy does not equate to voluntarily

11 complying with the law. While Defendants correctly argue that they were under no legal

12 obligation to include Plaintiffs’ counsel in the review and revision process, they nonetheless

13 chose to do so, and they subsequently voluntarily entered into an enforceable settlement

14 agreement. The Court finds that awarding fees under the circumstances of these cases would

15 not frustrate the purposes of § 1988.

16

The Court also does not find the balance of the equities to favor a denial of fees in

17 these cases. Through this litigation, Plaintiffs negotiated a revised, comprehensive crowd

18 control policy adopted by Defendants that protects the civil rights of persons participating in

19 demonstrations or otherwise gathered as a crowd. This is a significant public benefit. Per

20 the parties’ agreement, future violations of this policy are enforceable by the Court, without

21 any requirement of a showing that the acts required by the policy were necessary to ensure

22 compliance with the Constitution or civil rights laws; it is the violation of the policy itself

23 that would give rise to a claim. This, too, significantly benefits the public since it prevents

24 Defendants from violating the policy on grounds that they do not believe compliance with

25 the policy is constitutionally mandated.

26

Defendants suggest that their willingness to settle these cases and to take action to

27 review their own policies should result in the denial of fees. However, settlement would not

28 be discouraged by an award of fees because it would still be in Defendants’ financial

8

Case3:03-cv-02961 Document115 Filed09/27/05 Page9 of 13

United States District Court For the Northern District of California

1 interests to attempt settlement. Defendants’ willingness to settle is rewarded by Plaintiffs’

2 generation of fewer fees than would have been generated had these cases proceeded to trial

3 and Plaintiffs obtained a successful verdict.

4

The Court is also unpersuaded by Defendants’ argument that Plaintiffs are not entitled

5 to fees because the policy reached through negotiation provides greater relief for Plaintiffs

6 than could have been obtained at trial. Even if Defendants’ allegation is correct, Defendants

7 fail to explain why it would be just to punish Plaintiffs’ counsel for achieving greater results.

8 In addition, whether Plaintiffs could have gotten the same relief at trial is irrelevant.

9 Defendants agreed to forego trial, in what presumably was a calculated decision based on the

10 risks and costs of proceeding to trial, and instead opted to enter into a judicially enforceable

11 settlement agreement that grants Plaintiffs the injunctive relief they requested.

12

Similarly, the Court rejects Defendants’ argument that awarding attorneys’ fees prior

13 to full resolution of Plaintiffs’ damages claims is premature. Even if Defendants were to

14 prevail at trial, and a jury were to find that Plaintiffs’ constitutional rights were not violated,

15 the agreement regarding Plaintiffs’ injunctive relief claims would still stand. Nothing in the

16 agreement is predicated on a finding of liability, and no jury verdict can alter the fact that the

17 settlement agreement is a material change in the legal relationship between the parties that is

18 fully enforceable by Plaintiffs.

19

Nor is the amount of Plaintiffs’ fee request so large that it shocks the conscience and

20 warrants a complete denial of fees. Defendants’ challenge to the reasonableness of

21 Plaintiffs’ request is more appropriately addressed when considering the amount of fees to be

22 awarded, not whether fees should be awarded at all.

23

Likewise, the Court is unpersuaded by Defendants’ assertions that they did not

24 anticipate that Plaintiffs’ would seek fees and that Plaintiffs’ counsel never explicitly stated

25 that they would make a request for fees for their work in negotiating the settlement. Civil

26 rights plaintiffs routinely seek fees after achieving a judicially enforceable settlement

27 agreement, and there was no reason for Plaintiffs’ counsel to explicitly inform Defendants

28 prior to the onset of negotiations that they would be seeking fees. Furthermore, the

9

Case3:03-cv-02961 Document115 Filed09/27/05 Page10 of 13

United States District Court For the Northern District of California

1 settlement agreement itself specifically references Plaintiffs’ intention to seek fees and sets

2 forth a procedure to resolve Plaintiffs’ fee request.

3

Finally, none of Defendants’ other purported special circumstances persuades the

4 Court that a fee award would be unjust. For instance, that some of Plaintiffs’ counsel in the 5 Local 10 case received fees for their work in settling a different case, Allen v. City of 6 Oakland, a case that gave rise to a negotiated settlement agreement requiring systemic

7 reforms of the Oakland Police Department, does not mean that counsel cannot obtain fees in

8 this unrelated case. Similarly, Defendants’ argument that the settlement agreement in these 9 cases would be subject to review by the Allen monitoring team, and that therefore fees should

10 not be granted, is undermined by Defendants’ refusal to accept Plaintiffs’ proposal that the 11 Allen monitoring team be involved in the settlement discussions. Nor does the Court find

12 that the City of Oakland’s budgetary issues or Defendants’ other public policy arguments

13 present good cause to deny Plaintiffs’ request for fees.

14

In short, Defendants have failed to make any showing, let alone the required strong

15 showing, that special circumstances make an award of fees unjust in these cases. Thus, the

16 Court finds that an award of fees and costs is appropriate under 42 U.S.C. § 1988.

17

C.

Entitlement to Fees Under State Law

18

The Court also finds an award of fees to be appropriate under California Code of Civil

19 Procedure section 1021.5.2 That statute provides that a court may award attorneys’ fees to a

20 “successful party . . . in any action resulting in the enforcement of an important right

21 affecting the public interest,” provided that “(a) a significant benefit . . . has been conferred

22 on the general public or a large class of persons, (b) the necessity and financial burden of

23 private enforcement . . . are such as to make the award appropriate, and (c) such fees should

24 not in the interest of justice be paid out of the recovery, if any.” Cal. Civ. Proc. Code

25 § 1021.5. In their opposition, Defendants do not argue that any of these criteria is not met,

26 and the Court agrees that these cases satisfy all three criteria. Defendants instead focus their

27

2Because the Court finds that Plaintiffs are entitled to fees under section 1021.5, it

28

need not consider whether Plaintiffs are also entitled to fees under different provisions of state law.

10

Case3:03-cv-02961 Document115 Filed09/27/05 Page11 of 13

United States District Court For the Northern District of California

1 opposition on arguing why Plaintiffs have failed to satisfy the requirements for applying the

2 catalyst theory under state law. As explained above, however, Plaintiffs in these cases need

3 not rely on the catalyst theory because they obtained a judicially enforceable settlement

4 agreement that materially alters the relationship between the parties.

5

6 II. Amount of Fees and Costs

7

After establishing Plaintiffs’ entitlement to fees, a court must next determine the

8 amount of reasonable fees to be awarded. Under both federal and state law, that amount is

9 determined by multiplying the number of hours reasonably expended on the litigation by a 10 reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Serrano v. Priest,

11 20 Cal. 3d 25, 48 & n.23 (1977). Under federal law, there is a “strong presumption” that this

12 “lodestar” figure constitutes a reasonable attorneys’ fee because most relevant considerations

13 are subsumed within this initial calculation, and adjustment of the lodestar will be 14 appropriate only in “rare” or “exceptional” cases. Pennsylvania v. Delaware Valley Citizens’ 15 Council for Clean Air, 478 U.S. 568, 564-65 (1986). Under state law, however, the lodestar

16 may be adjusted based on such factors as the contingent nature of the fee award and the 17 novelty and difficulty of the questions involved. Serrano, 20 Cal. 3d at 49. The purpose of

18 allowing an adjustment of the lodestar is to ensure that the fee award is set “at the fair market 19 value for the legal services provided.” PLCM Group v. Drexler, 22 Cal. 4th 1084, 1095 20 (2000). “Of course, the trial court is not required to include a fee enhancement to the basic

21 lodestar figure for contingent risk, exceptional skill, or other factors, although it retains

22 discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement 23 bears the burden of proof.” Ketchum v. Moses, 24 Cal. 4th 1122, 1138 (2001). In addition,

24 when determining whether to adjust the lodestar, “a trial court should not consider these

25 factors to the extent they are already encompassed within the lodestar”; to do otherwise 26 would result in impermissible double-counting. Id.

27

Because Defendants’ position relied so heavily on their belief that Plaintiffs were not

28 entitled to fees at all, the Court is hopeful that the parties may be able to reach agreement on

11

Case3:03-cv-02961 Document115 Filed09/27/05 Page12 of 13

United States District Court For the Northern District of California

1 the amount of fees and costs awarded now that the Court has determined Plaintiffs’

2 entitlement to fees. Thus, rather than expend potentially unnecessary judicial resources, the

3 Court orders the parties to participate in a mandatory settlement conference with Magistrate

4 Judge James Larson. Judge Larson worked on the settlement of the injunctive relief claims

5 in these cases, and, as a result, he is familiar with all parties, the subject matter of these cases,

6 and the process by which the cases were settled. Judge Larson will contact the parties

7 regarding the date of the settlement conference after he receives this referral. If the parties

8 are able to reach agreement prior to the settlement conference date, no such conference shall

9 be necessary.

10

This Court expects the parties to negotiate Plaintiffs’ fees and costs in good faith and

11 to attempt to resolve as many issues as possible. If the parties are unable to fully resolve this

12 matter, Plaintiffs may re-submit the matter to this Court by filing an appropriate motion that

13 narrows the issues for judicial resolution. The Court will carefully scrutinize any such

14 motion by, for example, analyzing whether Plaintiffs have met their burden in justifying their

15 request for a lodestar multiplier on both their work on the merits and their work on fees, as

16 well as whether Plaintiffs’ overall fee request is reasonable. As a matter of guidance, the

17 Court advises the parties that it has particular concerns about: (1) whether Plaintiffs’

18 counsel’s billing records are detailed enough to allow the Court to determine if the number of

19 hours claimed is reasonable and whether the claimed hours exclude all work not related to

20 Plaintiffs’ injunctive and declaratory relief claims3; (2) whether counsel has established that

21 their fee request should not be reduced for unnecessarily duplicative efforts or inefficiencies

22 resulting from unnecessary levels of staffing; and (3) whether the number of claimed hours

23 for fees work is reasonable.4 These concerns are based on the Court’s initial review of

24

3For example, some of counsel’s billing records say nothing more than “meeting” or

25

“telephone call” with listed individuals or co-counsel or, even more generically, “attorney meeting” or “read e-mails.”

26

4See, e.g., Hensley, 461 U.S. at 433, 437 (holding that fee applicants bear the burden

27

of documenting hours expended and “should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims,” and explaining that a court may

28

reduce the fee award if the applicant’s “documentation of hours is inadequate”); id. at 434 (noting that “[c]ases may be overstaffed” and that counsel should remove from their fee

12

Case3:03-cv-02961 Document115 Filed09/27/05 Page13 of 13

United States District Court For the Northern District of California

1 Plaintiffs’ fee request, and this discussion does not present an exhaustive list of issues the

2 Court will consider if the parties are unable to reach agreement on the amount of fees and

3 costs awarded, nor does it indicate that Plaintiffs’ fee request will necessarily be reduced

4 based on any of these factors. Instead, the Court mentions these factors here so that the

5 parties may carefully consider them during their settlement conference with Judge Larson

6 and any related negotiations regarding the amount of fees and costs to be awarded to

7 Plaintiffs.

8

9 IT IS SO ORDERED.

10

11 DATED 09/27/05 12

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

13

14

15

16

17

18

19

20

21

22

23

24

25

26 request hours that are “excessive, redundant, or otherwise unnecessary”); but see Davis v.

27

City & County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (holding that the participation of multiple

28 attorneys does not necessarily result in non-compensable duplication of effort).

13

 
 Case3:03-cv-02962-TEH Document8 Filed08/11/03 Page1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

RELATED CASE ORDER

A Notice of Related Cases has been filed that the following cases are related within the meaning of Civil L.R. 3-12(b):

C00-4599 TEH C03-2961 MMC C03-2962 MJJ

Allen v. City of Oakland Coles, et al. v. City of Oakland, et al. Local 10 Int’l Longshore & Warehouse Union, et al v. City of Oakland

ORDER

The time for filing a statement to support or oppose the Notice has passed. On the basis of the material submitted to the Court, as the Judge assigned to the earliest filed case, I find that the cases:

[] ARE NOT RELATED as defined by Civil L.R. 3-12(b).

[XX] ARE RELATED as defined by Civil L.R. 3-12(b). Pursuant to Civil L.R. 3-12(e), the Clerk of Court is ordered to reassign the later-filed action to the undersigned. Counsel are instructed that all future filings are to bear the initials TEH immediately after the case number. All matters presently scheduled for hearing in the reassigned case(s) are vacated and must be renoticed for hearing before the undersigned.

DATED: 7/31/03

s/ THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I certify that on the date stated below, I lodged a copy of this order with each judicial officer and I mailed a copy to each counsel of record in the cases listed above.
Richard W. Wieking, Clerk

DATED:

By: Deputy Clerk

Copies to: Courtroom Deputies Case Systems Administrators Counsel of Record
Entered into Assignment Program: (date)
mrg\civil\relcsord.mrg (9/97)

 
 Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page1 of 6

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 SRI LOUISE COLES, et al.,

8

Plaintiffs,

9

v.

10 CITY OF OAKLAND, et al.,

11

Defendants.

12

NO. C03-2961 TEH
ORDER DENYING DEFENDANTS’ MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL

13 LOCAL 10, INTERNATIONAL

14

LONGSHORE AND WAREHOUSE UNION, et al.,

15

Plaintiffs,

16

v.

17 CITY OF OAKLAND, et al.,

18

Defendants.

19

NO. C03-2962 TEH

20

These matters came before the Court on Monday, July 11, 2005, on Defendants’ motion

21 for certification for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the Court’s April

22 27, 2005 Order Denying Defendants’ Motions to Dismiss. After carefully reviewing the

23 papers, oral arguments, and relevant case law, the Court does not find good cause to grant

24 Defendants’ motion. Accordingly, the motion is DENIED for the reasons discussed below.

25

26 BACKGROUND

27

These cases concern an April 7, 2003 anti-war protest at the Port of Oakland. As the

28 Court summarized in its April 27, 2005 order:

Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page2 of 6

United States District Court For the Northern District of California

1

Plaintiffs are demonstrators, legal observers,

videographers, journalists, and dockworkers who, on April 7,

2

2003, gathered outside the gate entrances of two companies at

the Port of Oakland that had economic involvement in the war

3

in Iraq. They allege that Oakland police officers used

excessive force at various times throughout that morning’s

4

demonstration, sometimes without any warning and at other

times after giving orders to disperse that were allegedly

5

inaudible to most of the crowd. Plaintiffs allege that

Defendants aimed and fired projectiles, such as wooden

6

dowels, “flexible batons” (bean bags), and sting ball grenades

filled with rubber pellets and tear gas, directly at Plaintiffs

7

and, in some cases, from close range. Defendants also

allegedly charged Plaintiffs with motorcycles and hit them

8

with clubs. The police allegedly never gave a clear order

directing what Plaintiffs should do or where they should go to

9

avoid being shot at or otherwise subjected to force.

10

Plaintiffs allege that the police continued to shoot

Plaintiffs with projectiles and charge them with motorcycles

11

even after they started to leave the protest area by walking up

the only avenue not blocked off by police. According to the

12

allegations, the police herded Plaintiffs from the port area to

the West Oakland BART station – a path of more than a mile –

13

and also pursued a group of Plaintiffs who walked from the

BART station to the Oakland federal building, periodically

14

hitting them with motorcycles and shooting projectiles at

them.

15

Based on these allegations, Plaintiffs in both cases

16

assert violations of their First, Fourth, and Fourteenth

Amendment rights under the United States Constitution.

17

Plaintiffs also contend that Defendants violated various

provisions of the California Constitution and other California

18

state laws.

19 Apr. 27, 2005 Order Denying Defs.’ Mot. to Dismiss.

20

Defendants moved to dismiss the Fourth Amendment claims of all plaintiffs who were

21 not arrested, as well as the First Amendment claims of the union plaintiffs in the Local 10

22 case. The Court denied Defendants’ motions to dismiss in their entirety on April 27, 2005.

23 First, the Court concluded that Defendants’ alleged “termination of freedom of movement

24 through means intentionally applied” is subject to Fourth Amendment analysis under Brower v.

25 County of Inyo, 489 U.S. 593, 596-97 (1989). Second, the Court determined that the union

26 plaintiffs’ allegations of discrimination based on union membership were sufficient to state a

27 claim based on the First Amendment’s protections of freedom of association. Defendants now

28

2

Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page3 of 6

United States District Court For the Northern District of California

1 seek permission to file an interlocutory appeal of this Court’s decision denying the motion to

2 dismiss Plaintiffs’ Fourth Amendment claims.

3

4 LEGAL STANDARD

5

A district court may grant certification for an interlocutory appeal of an order if the

6 court is “of the opinion that such order involves a controlling question of law as to which there

7 is substantial ground for difference of opinion and that an immediate appeal from the order

8 may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). This

9 provision was “not intended merely to provide review of difficult rulings in hard cases,” and a

10 “mere question as to the correctness of the ruling” should not prompt the granting of a

11 certificate for interlocutory appeal. U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 & n.2 (9th

12 Cir. 1966) (citing S. Rep. No. 85-2434 (1958), reprinted in 1958 U.S.C.C.A.N. 5255, 5259).

13 Instead, because certification under § 1292(b) represents a departure from the usual rule that

14 allows appeals only after final judgment, a party seeking certification for interlocutory appeal

15 must demonstrate that “exceptional circumstances” justify an immediate appeal. Coopers &

16 Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (citation omitted). The Ninth Circuit “has

17 recognized the congressional directive that section 1292(b) is to be applied sparingly and only

18 in exceptional cases.” In re Cement Antitrust Litigation, 673 F.2d 1020, 1027 (9th

19 Cir. 1982).

20

21 DISCUSSION

22

As the Court explained at the hearing on this motion, it finds that the issue of whether

23 the Fourth Amendment applies to Plaintiffs’ claims presents substantial grounds for difference

24 of opinion. The Court also expressed its inclination to find that the issue is a controlling

25 question of law, at least as to Plaintiffs’ Fourth Amendment claims. However, for the reasons

26 discussed below, Defendants have failed to persuade the Court that the third criterion for

27 certification under § 1292(b) has been satisfied.

28

3

Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page4 of 6

United States District Court For the Northern District of California

1

Defendants argue that interlocutory appeal would materially advance the termination of

2 this litigation because it would increase the likelihood of settlement. 1 In support of the

3 proposition that likelihood of settlement may be considered in this context, Defendants rely

4 on two cases. In the first case, the parties stipulated that they anticipated settling the plaintiff’s

5 claims if the district court’s decision dismissing part of plaintiff’s case were affirmed on

6 appeal. Consol. Edison Co. v. U.S., 941 F. Supp. 398, 403 (S.D.N.Y. 1996). In the second

7 case, the court found that the case, a personal injury action involving use of an allegedly

8 defective product, was “the type of litigation which usually settles as soon as the parameters of

9 legal liability are established.” Collins v. Promark Products, Inc., 763 F. Supp. 1206, 1208

10 (S.D.N.Y. 1991).

11

The cases before this Court are easily distinguishable from both cases relied upon by

12 Defendants. First, the Court cannot say that cases involving alleged use of excessive force by

13 police are “the type of litigation which usually settles as soon as the parameters of legal

14 liability are established.” Second, Plaintiffs in these cases vigorously dispute that resolution

15 of the legal issue for which interlocutory appeal is sought would in any way facilitate

16 settlement. To the contrary, Plaintiffs in the Local 10 case asserted that the plaintiffs in that

17 case who have yet to settle have suffered more serious injuries and would therefore be more

18 likely to recover even if the Fourteenth Amendment rather than the Fourth Amendment

19 standard were applied at trial. 2 Similarly, the Coles Plaintiffs represented that an interlocutory

20 appeal would not improve the likelihood of settlement in their case.

21

In addition, Defendants’ conclusions regarding the track record of settlement in these

22 cases are misplaced. The record of settlement demonstrates that the parties are continuing to

23 reach agreement even in the absence of an interlocutory appeal. According to Defendants, 41

24

25

1Settlement would be the only way that interlocutory appeal could conceivably advance the termination of this litigation. It is undisputed that multiple issues would remain for trial

26

even if the appellate court were to reverse this Court’s ruling and dismiss the majority of plaintiffs’ Fourth Amendment claims.

27

2The Fourth Amendment prohibits use of force that is unreasonable, whereas the

28

Fourteenth Amendment only prohibits use of force that shocks the conscience. Apr. 27, 2005 Order Denying Mots. to Dismiss at 3-4 (and cases cited therein).

4

Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page5 of 6

United States District Court For the Northern District of California

1 of 58 plaintiffs had settled their claims by the time Defendants filed their motion. At oral

2 argument, Defendants represented that the City had recommended or was close to

3 recommending settlement in 10 additional cases. Since the motion hearing, the Court has

4 received notices of acceptance of Rule 68 offers from two plaintiffs. Rather than showing that

5 the parties need immediate appellate guidance on the applicability of the Fourth Amendment to

6 Plaintiffs’ claims, the settlement of 43 out of 58 cases, plus an additional 8 cases in which the

7 City is reportedly close to recommending settlement, suggests that an interlocutory appeal is

8 not necessary to promote settlement.

9

Moreover, trial in these cases is set to begin in January 2006 – less than six months

10 from now, and less than eight months from the date Defendants filed their motion. The parties

11 have stipulated that, even if an interlocutory appeal is certified, no party will seek a stay of

12 these proceedings. Thus, regardless of whether this Court certifies its earlier order for

13 interlocutory appeal, these cases will go to trial in less than six months’ time. Defendants

14 suggested at oral argument that an interlocutory reversal of this Court’s Fourth Amendment

15 ruling would streamline trial. While this may be correct, it also appears highly unlikely that

16 the Ninth Circuit would resolve the appeal before the trial date. See Shurance v. Planning

17 Control Int’l, Inc., 839 F.2d 1347, 1348 (9th Cir. 1988) (noting that an appeal “probably could

18 not be completed” within five months from the date of the court’s opinion denying the

19 interlocutory appeal, and that allowing the appeal “might well have the effect of delaying

20 resolution of this litigation”). Thus, not only will trial will begin at the scheduled time

21 regardless of whether an interlocutory appeal is allowed, but it appears highly likely that the

22 jury would need to decide the Fourth Amendment issues even if this Court were to allow an

23 interlocutory appeal to proceed.

24

Finally, the Court agrees with Plaintiffs that much of the evidence will overlap on

25 Plaintiffs’ Fourth and Fourteenth Amendment claims since both sets of claims stem from the

26 same factual allegations. Defendants correctly note that additional expert opinion may be

27 required if Plaintiffs’ Fourth Amendment claims are part of the trial, but the Court does not

28 find that allowing such opinion would be unduly burdensome or wasteful. Additionally, the

5

Case3:03-cv-02961-TEH Document97 Filed08/03/05 Page6 of 6

United States District Court For the Northern District of California

1 question before the Court is whether the ultimate termination of this litigation would be

2 advanced, not whether trial might be streamlined by an immediate appeal. Indeed, were the

3 latter a relevant consideration, it would tend to support the interlocutory appeal of any decision

4 on a motion to dismiss or motion for summary judgment – a situation clearly not contemplated

5 by the narrow exception to the final judgment rule created by § 1292(b).

6

7 CONCLUSION

8

In light of all of the above, this Court simply cannot conclude that this case presents the

9 extraordinary circumstances required for certification of an interlocutory appeal. The Court

10 cannot say with any certainty that an immediate appeal would facilitate settlement, or that it

11 would otherwise materially advance the ultimate termination of this litigation. Accordingly,

12 Defendants have failed to meet their burden in demonstrating that the criteria set forth in 28

13 U.S.C. § 1292(b) have been satisfied, and Defendants’ motion is therefore DENIED.

14

15 IT IS SO ORDERED.

16

17 DATED 08/03/05 18

/s/ THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

19

20

21

22

23

24

25

26

27

28

6

 
 Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 1 of 23
ADRMOP, CLOSED, CONSOL, E−Filing, REFSET−JL
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:03−cv−02961

Coles et al v. City Of Oakland et al Assigned to: Hon. Thelton E. Henderson Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Sri Louise Coles TERMINATED: 05/05/2006
Plaintiff Ron Smith TERMINATED: 07/31/2006

Date Filed: 06/26/2003 Date Terminated: 01/04/2007 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Julia Sherwin Haddad &Sherwin 505 17th Street Oakland, CA 94612 (510) 452−5500 Fax: 510−452−5100 Email: haddad.sherwin@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad Haddad &Sherwin 505 17th Street Oakland, CA 94612 510−452−5500 Fax: 510−452−5510 Email: haddad.sherwin@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Morse Pearl Law Offices of Richard M. Pearl 1816 5th St Berkeley, CA 94710 510/649−0810 Email: rpearl@interx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
William H. Goodman , Center for Constitutional Rights 7th floor 666 Broadway New York, NY 10012 (212)614−6427 Fax: (212) 614−6499 Email: bgoodman@ccr−ny.org ATTORNEY TO BE NOTICED
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Morse Pearl

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 2 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William H. Goodman , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Hansen TERMINATED: 07/31/2006

represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Morse Pearl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William H. Goodman , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dave Telles

represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Morse Pearl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William H. Goodman , (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Scott Bohning TERMINATED: 07/31/2006

represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Morse Pearl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 3 of 23

Plaintiff Lindsay Parkinson TERMINATED: 07/31/2006
Plaintiff Ron Smith TERMINATED: 07/31/2006

William H. Goodman , (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Morse Pearl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William H. Goodman , (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City Of Oakland a municipal entity
Defendant Police Chief Richard Word Defendant Patrick Haw Deputy Chief

represented by Gregory Mellon Fox Bertrand Fox &Elliot The Waterfront Building 2749 Hyde Street San Francisco, CA 94109 415/353−0999 Fax: 415/353−0990 Email: gfox@bfesf.com ATTORNEY TO BE NOTICED
Randolph W. Hall Oakland City Attorney's Office One Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 510/238−3701 Fax: (510) 238−6500 Email: rwhall@oaklandcityattorney.org ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 4 of 23

ATTORNEY TO BE NOTICED

Defendant
Rod Yee Captain

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
E. Poulson Lieutenant TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lieutenant Howard Jordan TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dave Kozicki Lieutenant

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
T. Hogenmiller Seargent TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Police Officer J. Low

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
E. Tracey (8091) TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
R. Gutierez (8091)

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
A. Oerlemans (7632) TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
R. Holmgren (8282)

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
P. Gonzales (8151)

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 5 of 23

S. Knight (7776) TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Sergeant Gary Tolleson

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Police Officer M Nichelini

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Police Officer L. Low

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant A. Steinberger

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant B. Worden

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant C. Delrosario

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant C. Saunders

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant D. Campbell

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
E. Romans E. Romans TERMINATED: 12/12/2005

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant F. Uu

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant J. Doolittle

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 6 of 23

Defendant J. Fukuda TERMINATED: 12/12/2005
Defendant M. Nichelini
Defendant R. Moore TERMINATED: 12/12/2005
Defendant James Fisher
Defendant William Wallace
3rd party defendant Sri Louise Coles

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/26/2003
06/26/2003 06/26/2003
06/26/2003 07/02/2003

# Docket Text
1 COMPLAINT AND DEMAND FOR JURY TRIAL; against City Of Oakland, Patrick Haw, T. Hogenmiller, Howard Jordan, Dave Kozicki, J. Low, E. Poulson, Rod Yee (Filing fee $150 receipt number 4407978). Filed by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (aaa, Court Staff) Additional attachment(s) added on 6/27/2003 (aaa, Court Staff). (Entered: 06/27/2003)
Summons Issued as to City Of Oakland ; Patrick Haw ; Howard Jordan ; J. Low ; E. Poulson ; Richard Word ; Rod Yee (aaa, Court Staff) (Entered: 06/27/2003)
2 ADR SCHEDULING ORDER: Case Management Statement due by 10/17/2003. Case Management Conference set for 10/24/2003 at 10:30 AM.. Signed by Judge Maxine M. Chesney on 6/26/03. (Attachments: # 1)(aaa, Court Staff) (Entered: 06/27/2003)
CASE DESIGNATED for Electronic Filing. (aaa, Court Staff) (Entered: 06/27/2003)
3 NOTICE of Related Case C00−4599 TEH &C03−2962 MJJ by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (gba, ) (Entered: 07/10/2003)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 7 of 23

07/11/2003
07/14/2003 07/29/2003 08/11/2003 08/18/2003 12/20/2003
01/08/2004
01/20/2004 01/21/2004 01/26/2004 03/08/2004 04/26/2004 05/03/2004 05/06/2004 05/06/2004

4 RESPONSE to PLAINTIFF'S NOTICES OF RELATED CASES FILED IN THE MATTERS OF SRI LOUISE COLES, ET AL. V. CITY OF OAKLAND, CASE NO. C03−2961 MMC AND LOCAL 21, ET AL. V. CITY OF OAKLAND, ET AL. CASE NO. C03−2962 MJJ (Civil Local Rule 3−12) by City Of Oakland. (Hall, Randolph) (Entered: 07/11/2003)
5 CLERK'S NOTICE re: Failure to E−File/E−Mail Notice of Related Case and/or Failure to Register as an E−Filer. Sent Clerk's Notice by U.S. Mail to Attorney Julia Sherwin, Attorney Michael J. Haddad and Attorney William H. Goodman. (aaa, Court Staff) (Entered: 07/14/2003)
6 NOTICE of Related Case by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (Haddad, Michael) (Entered: 07/29/2003)
7 ORDER REASSIGNING/RELATING CASE to lead case no. C00−4599 TEH. Case reassigned to Judge Thelton E. Henderson for all further proceedings. Judge Maxine M. Chesney no longer assigned to case. Signed by Judge Thelton E. Henderson on 7/31/03. (rbe) Modified on 8/11/2003 (rbe). (Entered: 08/11/2003)
8 ORDER REFERRING CASE to Magistrate Judge Larson for Settlement. Signed by Judge Thelton E. Henderson on 8/18/03. (rbe) (Entered: 08/18/2003)
9 1ST AMENDED COMPLAINT and Jury Demand by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. Amendment to 1 Complaint, First Amended Complaint and Jury Demand. (Haddad, Michael) (Filed on 12/20/2003) Modified on 12/24/2003 (db, COURT STAFF). (Entered: 12/20/2003)
10 Letter to the Court from Gregory M. Fox of Bertrand Fox &Elliot confirms that the parties in the above captioned two lawsuits request that the initial case management conference be set for 1/26/04 at 1:30 PM. (db, COURT STAFF) (Filed on 1/8/2004) Additional attachment(s) added on 1/22/2004 (rbe, COURT STAFF). (Entered: 01/13/2004)
11 JOINT CASE MANAGEMENT STATEMENT filed by City Of Oakland. (Fox, Gregory) (Filed on 1/20/2004) (Entered: 01/20/2004)
12 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer regarding docket #10, Defendant's letter to the Court regarding Case Management Conference (db, COURT STAFF) (Filed on 1/21/2004) (Entered: 01/21/2004)
13 Minute Entry: Initial Case Management Conference held on 1/26/2004 before Judge Thelton E. Henderson. Further Case Management Conference set for 5/3/2004 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 1/26/2004) (Entered: 01/26/2004)
14 NOTICE by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles of Unavailability of Plaintiffs' Counsel (Haddad, Michael) (Filed on 3/8/2004) (Entered: 03/08/2004)
15 JOINT CASE MANAGEMENT STATEMENT (Further) filed by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (Chanin, James) (Filed on 4/26/2004) (Entered: 04/26/2004)
16 Minute Entry: Further Case Management Conference held on 5/3/2004 before Judge Thelton E. Henderson. Amended complaint to be filed by 6/4/04. Further CMC set for 8/9/04 at 2:00 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 5/3/2004) (Entered: 05/03/2004)
17 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. Signed by Judge James Larson on 5/6/04. (jlsec, COURT STAFF) (Filed on 5/6/2004) (Entered: 05/06/2004)
18 NOTICE OF SETTLEMENT CONFERENCE AND NEW DATE OF SETTLEMENT CONFERENCE ORDER. Signed by Judge James Larson on 5/6/04. (jlsec, COURT STAFF) (Filed on 5/6/2004) (Entered: 05/06/2004)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 8 of 23

06/03/2004 07/08/2004 07/12/2004 07/14/2004 07/23/2004 07/27/2004 08/17/2004
09/09/2004 09/14/2004 09/15/2004 09/29/2004 09/30/2004
10/18/2004
10/18/2004 10/25/2004
10/26/2004

19 AMENDED COMPLAINT (Second) against all defendants. Filed by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (Haddad, Michael) (Filed on 6/3/2004) (Entered: 06/03/2004)
20 SETTLEMENT CONFERENCE ORDER. Signed by Judge James Larson on 7/8/04. (jlsec, COURT STAFF) (Filed on 7/8/2004) (Entered: 07/08/2004)
21 NOTICE of Change of Address by Michael J. Haddad and Julia Sherwin (Haddad, Michael) (Filed on 7/12/2004) (Entered: 07/12/2004)
22 NOTICE of Change of Address by attorneys for the plaintiffs(db, COURT STAFF) (Filed on 7/14/2004) (Entered: 07/14/2004)
23 Minute Entry:Settlement Conference held on 7/23/04. The case did not settle. (Date Filed: 7/23/2004). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 7/23/2004) (Entered: 07/23/2004)
24 Letter from City of Oakland re: Re−Setting of Case Management Conference. (Fox, Gregory) (Filed on 7/27/2004) (Entered: 07/27/2004)
25 Minute Entry: Further Case Management Conference held on 8/16/2004 before Judge Thelton E. Henderson. Further Case Management Conference set for 10/4/2004 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 8/17/2004) (Entered: 08/17/2004)
26 STIPULATION and [Proposed] Order to Extend Time by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 9/9/2004) (Entered: 09/09/2004)
27 NOTICE by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles of Unavailability of Plaintiffs' counsel (Haddad, Michael) (Filed on 9/14/2004) (Entered: 09/14/2004)
28 STIPULATION AND ORDER extending time for the City of Oakland to file first responsive pleading. Signed by Judge Thelton E. Henderson on 9/13/04. (rbe, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/15/2004)
29 STIPULATION and [Proposed] Order to Continue Case Managment Conference and Extend Time to Respond by City Of Oakland. (Fox, Gregory) (Filed on 9/29/2004) (Entered: 09/29/2004)
30 STIPULATION AND ORDER continuing the case management conference and the date for filing first responsive pleading. Further Case Management Conference set for 10/25/2004 01:30 PM. Signed by Judge Thelton E. Henderson on 9/30/04. (rbe, COURT STAFF) (Filed on 9/30/2004) (Entered: 09/30/2004)
31 *** FILED IN ERROR. PLEASE SEE DOCKET # 32 . *** CASE MANAGEMENT STATEMENT filed by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (Chanin, James) (Filed on 10/18/2004) Modified on 10/19/2004 (br, COURT STAFF). (Entered: 10/18/2004)
32 CASE MANAGEMENT STATEMENT CORRECTION OF DOCKET # 31 . filed by Scott Bohning, Sri Louise Coles, Jennifer Hansen, Lindsay Parkinson, Ron Smith, Dave Telles. (Chanin, James) (Filed on 10/18/2004) (Entered: 10/18/2004)
33 Minute Entry: Further Case Management Conference held on 10/25/2004 before Judge Thelton E. Henderson. Trial date and schedule set. Further Case Management Conference set for 11/29/2004 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 10/25/2004) (Entered: 10/25/2004)
34 ORDER for PRETRIAL PREPARATION: Case Management Conference set for 11/29/2004 01:30 PM. Discovery due by 10/3/2005. Jury Trial set for 1/17/2006 08:30 AM for an estimated 30 days. Motion Hearing set for 11/28/2005 10:00 AM. Motions due by 10/24/2005. Pretrial Conference set for 1/9/2006 03:00 PM. Case referred to Mag. Judge Larson for settlement. Signed by Judge Thelton E. Henderson on 10/25/04. (rbe, COURT STAFF) (Filed on 10/26/2004) (Entered: 10/26/2004)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 9 of 23

10/27/2004 11/02/2004 11/08/2004
11/09/2004 11/23/2004 11/23/2004 12/20/2004
12/28/2004 01/18/2005 01/18/2005 01/21/2005 01/24/2005
01/28/2005 02/03/2005
02/18/2005 03/02/2005 03/07/2005 04/27/2005

35 Letter from Gregory M. Fox re: Further Settlement Conference Date. (Fox, Gregory) (Filed on 10/27/2004) (Entered: 10/27/2004)
36 ORDER re 35 Letter filed by City Of Oakland. Signed by Judge James Larson on 11/2/04. (jlsec, COURT STAFF) (Filed on 11/2/2004) (Entered: 11/02/2004)
37 STIPULATION STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS CITY OF OAKLAND TO FILE FIRST RESPONSIVE PLEADING by City Of Oakland. (Fox, Gregory) (Filed on 11/8/2004) (Entered: 11/08/2004)
38 STIPULATION AND ORDER extending time for the City of Oakland to file first responsive pleading. Signed by Judge Thelton E. Henderson on 11/9/04. (rbe, COURT STAFF) (Filed on 11/9/2004) (Entered: 11/09/2004)
39 STIPULATION and [PROPOSED] ORDER CONTINUING CASE MANAGEMENT DATE by City Of Oakland. (Fox, Gregory) (Filed on 11/23/2004) (Entered: 11/23/2004)
40 STIPULATION AND ORDER continuing case managementconference to 2/14/2005 01:30 PM. Signed by Judge Thelton E. Henderson on 11/23/04. (rbe, COURT STAFF) (Filed on 11/23/2004) (Entered: 11/23/2004)
41 STIPULATION and (Proposed) Order Partially Settling Plaintiffs' Claims for Injunctive Relief by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Attachments: # 1)(Haddad, Michael) (Filed on 12/20/2004) (Entered: 12/20/2004)
42 STIPULATION AND ORDER approving partial settlement of plaintiffs' claims for injunctive relief. Signed by Judge Thelton E. Henderson on 12/24/04. (rbe, COURT STAFF) (Filed on 12/28/2004) (Entered: 12/28/2004)
43 Letter from Gregory M. Fox, January 14, 2005. (Fox, Gregory) (Filed on 1/18/2005) (Entered: 01/18/2005)
44 Letter from Michael J. Haddad. (Haddad, Michael) (Filed on 1/18/2005) (Entered: 01/18/2005)
45 STIPULATION and [Proposed] Order Setting Briefing Schedule and Hearing Date for Defendants' Motion to Dismiss Pursuant to FRCP 12(b)(6) by City Of Oakland. (Fox, Gregory) (Filed on 1/21/2005) (Entered: 01/21/2005)
46 STIPULATION and ORDER setting briefing schedule and hearing date. Dfts' Motion to Dismiss is set for 3/7/2005 at 10:00 AM. Signed by Judge Thelton E. Henderson on 1/21/05. (rbe, COURT STAFF) (Filed on 1/24/2005) (Entered: 01/24/2005)
47 MOTION to Dismiss for Failure to State a Claim, Pursuant to FRCP 12(b)(6) filed by City Of Oakland. Motion Hearing set for 3/7/2005 10:00 AM. (Fox, Gregory) (Filed on 1/28/2005) (Entered: 01/28/2005)
48 Memorandum in Opposition re 47 MOTION to Dismiss for Failure to State a Claim, Pursuant to FRCP 12(b)(6) filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 2/3/2005) (Entered: 02/03/2005)
49 Reply to Opposition 12(b)(6) filed byCity Of Oakland. (Fox, Gregory) (Filed on 2/18/2005) (Entered: 02/18/2005)
50 NOTICE of Acceptance with Offer of Judgment by Dave Telles (Haddad, Michael) (Filed on 3/2/2005) (Entered: 03/02/2005)
51 Minute Entry: Motion Hearing held on 3/7/2005 before Judge Thelton E. Henderson. Dfts' Motion to Dismiss is taken under submission. (Court Reporter: Debra Pas) (rbe, COURT STAFF) (Date Filed: 3/7/2005) (Entered: 03/07/2005)
52 ORDER by Judge Thelton E. Henderson denying 47 Motion to Dismiss. (tehlc3, COURT STAFF) (Filed on 4/27/2005) (Entered: 04/27/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 10 of 23

05/12/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/16/2005 05/17/2005
05/23/2005 05/23/2005 05/27/2005 05/27/2005 06/03/2005

53 NOTICE by City Of Oakland DEFENDANT'S NOTICE OF PENDENCY OF OTHER ACTION/RELATED CASE (Hall, Randolph) (Filed on 5/12/2005) (Entered: 05/12/2005)
54 MOTION for Attorney Fees and Costs filed by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. Motion Hearing set for 7/11/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Haddad, Michael) (Filed on 5/16/2005) (Entered: 05/16/2005)
55 Notice of Manual Filing of Supporting Declarations and Exhibits (Haddad, Michael)# 54 (Filed on 5/16/2005) Modified on 5/17/2005 (db, COURT STAFF). (Entered: 05/16/2005)
56 Notice of Association of Counsel) (Haddad, Michael) re # 54 (Filed on 5/16/2005) Modified on 5/17/2005 (db, COURT STAFF). (Entered: 05/16/2005)
57 STIPULATION AND PROPOSED ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE FOR PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS RE: OPD'S CROWD CONTROL POLICY by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 5/16/2005) (Entered: 05/16/2005)
58 MOTION for Attorney Fees filed by plaintiffs. Motion Hearing set for 7/11/2005 10:00 AM. (db, COURT STAFF) (Filed on 5/16/2005) (Entered: 05/17/2005)
59 Index of Declarations and declarations of Michael J. haddad: Julia Sherwin: Richard M. Pearl and James C. Sturdevant in support of plaitniffs motion for award of reasonalbe attorneys fees, by plaintiffs (manual filing notice on record #55)(db, COURT STAFF) (Filed on 5/16/2005) (Entered: 05/17/2005)
60 ASSOCIATION of Counsel by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (db, COURT STAFF) (Filed on 5/16/2005) (Entered: 05/17/2005)
61 ASSOCIATION of Counsel by plaintiffs for attorney Richard M. Pearl(db, COURT STAFF) (Filed on 5/16/2005) Modified on 5/17/2005 (db, COURT STAFF).****Disregard, duplication of docket #60.************ (Entered: 05/17/2005)
62 CERTIFICATE OF SERVICE by Jennifer Hansen, Scott Bohning, Sri Louise Coles re 58 MOTION for Attorney Fees (db, COURT STAFF) (Filed on 5/16/2005) (Entered: 05/17/2005)
63 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer for counsel for the plaintiffs regarding docket entries #60 and #62, plaintiffs notice of association of counsel and plaintiffs proof of service. Counsel has 10 days to electronically pdf file these documents to the US District Court, or an Order to Show Cause will issue forth. (db, COURT STAFF) (Filed on 5/17/2005) (Entered: 05/17/2005)
64 CLERK'S NOTICE: Case numbers C03−2961 and C03−2962 TEH are not related to C03−3304 MJJ. (rbe, COURT STAFF) (Filed on 5/23/2005) (Entered: 05/23/2005)
65 STIPULATION AND ORDER setting briefing schedule and hearing date for plaintiffs' motion for attorneys' fees and costs re OPD's crowd control policy. Signed by Judge Thelton E. Henderson on 5/19/05. (rbe, COURT STAFF) (Filed on 5/23/2005) (Entered: 05/23/2005)
66 MOTION FOR REQUEST FOR CERTIFICATION PURSUANT TO 28 U.S.C. 1292(b) (Fox, Gregory) (Filed by City of Oakland, Richard Word on 5/27/2005) Modified on 5/31/2005 (db, COURT STAFF). (Entered: 05/27/2005)
67 MEMORANDUM in Support OF MOTION FOR REQUEST FOR CERTIFICATION OF ORDER FOR APPEAL PURSUANT TO 28 U.S.C. 1292 (b) filed byCity Of Oakland, Richard Word. (Attachments: # 1 Exhibit EXHIBIT A)(Fox, Gregory) (Filed on 5/27/2005) (Entered: 05/27/2005)
68 NOTICE by City Of Oakland, Richard Word OF UNAVAILABILITY OF COUNSEL (Fox, Gregory) (Filed on 6/3/2005) (Entered: 06/03/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 11 of 23

06/10/2005 06/17/2005 06/20/2005 06/20/2005 06/22/2005 06/23/2005 06/27/2005
06/29/2005 06/30/2005
06/30/2005 06/30/2005

69 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Diana Bohn only. Signed by Judge Thelton E. Henderson on 6/9/05. (rbe, COURT STAFF) (Filed on 6/10/2005) (Entered: 06/10/2005)
70 STIPULATION AND [PROPOSED] ORDER SETTING BRIEFING SCHEDULE AND CONTINUING HEARING DATE FOR PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS RE: OPD'S CROWD CONTROL POLICY by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 6/17/2005) (Entered: 06/17/2005)
71 STIPULATION AND ORDER setting briefing schedule and continuing hearing date for plaintiffs' motion for attorneys' fees. Motion Hearing set for 8/15/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 6/17/05. (rbe, COURT STAFF) (Filed on 6/20/2005) (Entered: 06/20/2005)
72 Memorandum in Opposition to Defendants' Motion to Certify Order for Interlocutory Appeal # 66 filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 6/20/2005) Modified on 6/21/2005 (db, COURT STAFF). (Entered: 06/20/2005)
73 STIPULATION AND [PROPOSED] ORDER ALLOWING PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT AND EXTENDING TIME FOR DEFENDANTS CITY OF OAKLAND TO FILE ANSWER IN COLES ACTION by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 6/22/2005) (Entered: 06/22/2005)
74 ORDER granting re 73 Stipulation Allowing Plaintiffs to File Third Amended Complaint and Extending Time for Defendants City of Oakland to File Answer in Coles Action, filed by Richard Word, and City Of Oakland. Signed by Judge Henderson on June 22, 2005. (sp, COURT STAFF) (Filed on 6/23/2005) (Entered: 06/23/2005)
75 Reply Memorandum in Support of Motion for Request for Certification of Order for Appeal Pursuant to 28 USC 1292(b) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Affidavit Declaration of Arlene Helfrich in Support of Reply Brief in Support of Motion for Request for Certification of ORder for Appeal Pursuant to 28 USC 1292(b)# 2 Exhibit Exhibit 1 to Declaration of Arlene Helfrich in Support of Reply Brief in Support of Motion for Request for Certification of Order for Appeal Pursuant to 28 USC 1292(b))(Fox, Gregory) (Filed on 6/27/2005) (Entered: 06/27/2005)
76 STIPULATION and [Proposed] Order Setting Brief Page Limits for Plaintiffs' Motion for Attorneys' Fees and Costs re: OPD's Crowd Control Policy by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Fox, Gregory) (Filed on 6/29/2005) (Entered: 06/29/2005)
77 Memorandum in Opposition re 54 MOTION for Attorney Fees and Costs filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Appendix Appendix A# 2 Signature Page (Declarations/Stipulations) Signatures for all declarations)(Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
78 DECLARATION of INDEX OF DECLARATIONS AND EXHIBITS in Opposition to 77 Memorandum in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Related document(s) 77 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
79 DECLARATION of Gary Tolleson in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L.

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 12 of 23

06/30/2005
06/30/2005 06/30/2005 06/30/2005 06/30/2005 06/30/2005 06/30/2005
06/30/2005 06/30/2005

Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
80 DECLARATION of Gregory M. Fox in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1 (part one)# 2 Exhibit Exhibit 1 (part two)# 3 Exhibit Exhibit 2# 4 Exhibit Exhibit 3)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
81 DECLARATION of Anita Hong in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
82 DECLARATION of David Kozicki in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
83 STIPULATION AND ORDER setting brief page limits for plaintiffs' motion for attorneys' fees. Signed by Judge Thelton E. Henderson on 06/30/05. (rbe, COURT STAFF) (Filed on 6/30/2005) (Entered: 06/30/2005)
84 DECLARATION of Robert C. Bobb in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
85 DECLARATION of T.L. Hickman in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
86 DECLARATION of Richard L. Word in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibits 6 and 7)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
87 DECLARATION of Eric Breshears in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
88 DECLARATION of Zer Iyer in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 13 of 23

06/30/2005
06/30/2005
07/11/2005 07/12/2005 07/12/2005
07/13/2005 07/25/2005
07/27/2005 08/03/2005 08/10/2005 08/11/2005 08/15/2005

Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
89 DECLARATION of Matthew Waughtel in Opposition to 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Exhibit 1)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
90 Request for Judicial Notice re 77 Memorandum in Opposition,, 78 Declaration in Opposition, filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Attachments: # 1 Exhibit Attachment to Request to Take Judicial Notice)(Related document(s) 77 , 78 ) (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
91 Minute Entry: Motion Hearing held on 7/11/2005 before Judge Thelton E. Henderson. The motion for request for certification is taken under submission. (Court Reporter: Sahar McVickar) (rbe, COURT STAFF) (Date Filed: 7/11/2005) (Entered: 07/11/2005)
92 AMENDED COMPLAINT (Third) against all defendants. Filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 7/12/2005) (Entered: 07/12/2005)
93 STIPULATION re 54 MOTION for Attorney Fees and Costs, 55 Notice (Other) Stipulation and [Proposed] Order Setting Briefing Schedule and Continuing Hearing Date for Pl. Motion for Attys Fees and Costs by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Fox, Gregory) (Filed on 7/12/2005) (Entered: 07/12/2005)
94 STIPULATION AND ORDER continuing the hearing date of the motion for attorneys' fees to 9/19/2005 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 7/13/05. (rbe, COURT STAFF) (Filed on 7/13/2005) (Entered: 07/13/2005)
95 STIPULATION re 92 Amended Complaint Stipulation and [Proposed] Order Extending Time for Defendants City of Oakland to File Answer in Coles Action by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Fox, Gregory) (Filed on 7/25/2005) (Entered: 07/25/2005)
96 STIPULATION AND ORDER extending time for defendants to file answer until 08/31/05. Signed by Judge Thelton E. Henderson on 7/26/05. (rbe, COURT STAFF) (Filed on 7/27/2005) (Entered: 07/27/2005)
97 ORDER denying 66 Motion for certification for interlocutory appeal. Signed by Judge Thelton E. Henderson on 08/03/05. (tehlc3, COURT STAFF) (Filed on 8/3/2005) (Entered: 08/03/2005)
98 Proposed Order Stipulated Protective Order by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 8/10/2005) (Entered: 08/10/2005)
99 Proposed Order re 98 Proposed Order Corrected Stipulated Protective Order by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 8/11/2005) (Entered: 08/11/2005)
100 Corrected Stipulation and PROTECTIVE ORDER. Signed by Judge Thelton E. Henderson on 8/11/05. (rbe, COURT STAFF) (Filed on 8/15/2005) (Entered: 08/15/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 14 of 23

08/25/2005 08/26/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 09/01/2005
09/07/2005 09/08/2005

101 STIPULATION re 54 MOTION for Attorney Fees and Costs (Reply Page Limit) by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Sherwin, Julia) (Filed on 8/25/2005) (Entered: 08/25/2005)
102 STIPULATION AND ORDER setting page limits for plaintiffs' reply. The brief may be up to 20 pages. Signed by Judge Thelton E. Henderson on 8/26/05. (rbe, COURT STAFF) (Filed on 8/26/2005) (Entered: 08/26/2005)
103 Reply Memorandum re 54 MOTION for Attorney Fees and Costs filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
104 Declaration of Richard M. Pearl in Support of 54 MOTION for Attorney Fees and Costs (Supplemental) filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Attachments: # 1 Exhibit A (Suppl. Time Records))(Related document(s) 54 ) (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
105 NOTICE by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 54 MOTION for Attorney Fees and Costs, 103 Reply Memorandum (Notice of Manual Filing of Haddad Supplemental Declaration with exhibits) (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
106 NOTICE by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 54 MOTION for Attorney Fees and Costs, 103 Reply Memorandum (Notice of Incorporation of Declarations Filed in Related Case) (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
107 CERTIFICATE OF SERVICE by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 54 MOTION for Attorney Fees and Costs, 103 Reply Memorandum (Of Reply Memorandum and Supporting Declarations and Documents) (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
108 Declaration of Alan Schlosser in Support of 54 MOTION for Attorney Fees and Costs, 103 Reply Memorandum ("Schlosser SD") filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Related document(s) 54 , 103 ) (Haddad, Michael) (Filed on 8/29/2005) (Entered: 08/29/2005)
109 Declaration of Michael J. Haddad in Support of 106 motion for attorney's fees filed by plaintiffSri Louise Coles. (Related document(s) 106 ) (db, COURT STAFF) (Filed on 8/29/2005) (Entered: 08/30/2005)
110 Defendants City of Oakland, Police Chief Richard Word and All Officer Defendants' Answer to Third Amended Complaint ANSWER to Amended Complaint byA. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low. (Fox, Gregory) (Filed on 9/1/2005) (Entered: 09/01/2005)
111 NOTICE by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 54 MOTION for Attorney Fees and Costs, 103 Reply Memorandum (Notice of Incorporation of Additional Declarations filed in Related Case) (Haddad, Michael) (Filed on 9/7/2005) (Entered: 09/07/2005)
112 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Notice of Additional Authority in Opposition to Coles' and Local 10's Motions for Fees and Costs filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore. (Attachments: # 1 Exhibit exhibit a to Notice of Additional Authority# 2 Exhibit exhibit b to Notice of Additional Authority)(Fox, Gregory) (Filed on 9/8/2005) (Entered: 09/08/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 15 of 23

09/14/2005
09/20/2005
09/27/2005 10/14/2005 10/18/2005 10/21/2005 10/27/2005 10/28/2005 11/01/2005 11/03/2005 11/03/2005
11/03/2005 11/03/2005

113 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d (Re: Motion for Fees, #54) filed byJennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Attachments: # 1 Appendix 1) Dang v. Cross# 2 Appendix 2) Horsford)(Haddad, Michael) (Filed on 9/14/2005) (Entered: 09/14/2005)
114 Answer to Amended Complaint Defendants James Fisher adn William Wallace' Answer to Third Amended Complaint and Demand for Jury Trial byJames Fisher, William Wallace, E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore. (Fox, Gregory) (Filed on 9/20/2005) (Entered: 09/20/2005)
115 ORDER by Judge Thelton E. Henderson granting in part and denying in part 54 Motion for Attorneys' Fees. (tehlc3, COURT STAFF) (Filed on 9/27/2005) (Entered: 09/27/2005)
116 Proposed Order re 34 Case Management Scheduling Order, (with signed stipulation) by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 10/14/2005) (Entered: 10/14/2005)
117 STIPULATION AND ORDER re: pretrial preparation dates. Signed by Judge Thelton E. Henderson on 10/18/05. (rbe, COURT STAFF) (Filed on 10/18/2005) (Entered: 10/18/2005)
118 Letter from Wayne Tucker, Chief of Police, Oakland, CA. (Fox, Gregory) (Filed on 10/21/2005) (Entered: 10/21/2005)
119 Proposed Order re 34 Case Management Scheduling Order,, 117 Stipulation and Order extending dispositive motion deadline due to counsel's illness by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 10/27/2005) (Entered: 10/27/2005)
120 STIPULATION AND ORDER re dispositive motion deadlines. Signed by Judge Thelton E. Henderson on 10/27/05. (rbe, COURT STAFF) (Filed on 10/28/2005) (Entered: 10/28/2005)
121 FURTHER SETTLEMENT CONFERENCE ORDER RE: ATTORNEYS' FEES. Signed by Judge James Larson on 11/1/05. (jlsec, COURT STAFF) (Filed on 11/1/2005) (Entered: 11/01/2005)
122 MOTION for Partial Summary Judgment filed by Jennifer Hansen, Scott Bohning, Sri Louise Coles, Ron Smith. Motion Hearing set for 12/12/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Haddad, Michael) (Filed on 11/3/2005) (Entered: 11/03/2005)
123 NOTICE OF MANUAL FILING Filed by Plaintiffs Jennifer Hansen, Scott Bohning, Sri Louise Coles &Ron Smith re 122 MOTION for Partial Summary Judgment −− [Re: Manual Filing of the Declarations of Michael J. Haddad &Julia Sherwin]−−). (Haddad, Michael) (Filed on 11/3/2005) Modified on 11/8/2005 (tn, COURT STAFF). (Entered: 11/03/2005)
124 CERTIFICATE OF SERVICE by Jennifer Hansen, Scott Bohning, Sri Louise Coles, Ron Smith re 122 MOTION for Partial Summary Judgment (Haddad, Michael) (Filed on 11/3/2005) (Entered: 11/03/2005)
125 MOTION for Summary Judgment Or, In The Alternative, Summary Adjudication Against Individual Plaintiffs filed by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. Motion Hearing set for 12/12/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Fox, Gregory) (Filed on 11/3/2005) (Entered: 11/03/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 16 of 23

11/03/2005
11/03/2005 11/03/2005 11/04/2005 11/04/2005
11/08/2005 11/09/2005 11/21/2005 11/21/2005

126 Declaration of Gregory M. Fox in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication (+ Exhibits A−E) (exhibts f−n to be filed separately) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Exhibit A to Fox Dec 38 pages# 2 Exhibit B to Fox Dec 33 pages# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E to Fox Dec 3# 6)(Fox, Gregory) (Filed on 11/3/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/03/2005)
128 [MANUAL FILING]...DECLARATION of Julia Sherwin in Support of MOTION for Partial Summary Judgment re 122 . Filed by Plaintiffs Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles &Ron Smith. (Related document(s) 122 ). (tn, COURT STAFF) (Filed on 11/3/2005) (Entered: 11/08/2005)
129 [MANUAL FILING]...DECLARATION of Michael J. Haddad in Support of MOTION for Partial Summary Judgment re 122 . Filed by Plaintiffs Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles &Ron Smith. (Related document(s) 122 ).(tn, COURT STAFF) (Filed on 11/3/2005) (Entered: 11/08/2005)
130 DECLARATION of Deputy Chief Howard Jordan in Support of MOTION for Summary Judgment or, in the alternative for Summary Adjudication re 125 . Filed by Defendants City Of Oakland, Richard Word, et al.. (Related document(s) 125 ).(tn, COURT STAFF) (Filed on 11/4/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
131 DECLARATION of Gary Tolleson in Support of MOTION for Summary Judgment, or in the alternative for Summary Adjudication re 125 . Filed by Defendants City Of Oakland, Richard Word, et al.. (Related document(s) 125 ). (tn, COURT STAFF) (Filed on 11/4/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
127 NOTICE of Acceptance with Offer of Judgment by Dave Telles (Attachments: # 1 Appendix Rule 68 offer to Plaintiff Dave Telles)(Haddad, Michael) (Filed on 11/8/2005) (Entered: 11/08/2005)
132 [CONFIDENTIAL][SEALED]...CASE MANAGEMENT/SETTLEMENT CONFERENCE STATEMENT Filed by Defendants City Of Oakland, Richard Word, et al.. (tn, COURT STAFF) (Filed on 11/9/2005) Modified on 11/14/2005 (tn, COURT STAFF). (Entered: 11/10/2005)
133 Memorandum in Opposition re 125 MOTION for Summary Judgment Or, In The Alternative, Summary Adjudication Against Individual Plaintiffs filed byJennifer Hansen, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 11/21/2005) (Entered: 11/21/2005)
134 NOTICE by Jennifer Hansen, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 122 MOTION for Partial Summary Judgment, 125 MOTION for Summary Judgment Or, In The Alternative, Summary Adjudication Against Individual Plaintiffs [Notice of Manual Filing of Supplemental Declaration of Michael J. Haddad (with exhibits)] (Haddad, Michael) (Filed on 11/21/2005) (Entered: 11/21/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 17 of 23

11/21/2005 11/21/2005 11/21/2005 11/21/2005 11/21/2005
11/21/2005 11/21/2005

135 CERTIFICATE OF SERVICE by Jennifer Hansen, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith re 122 MOTION for Partial Summary Judgment, 125 MOTION for Summary Judgment Or, In The Alternative, Summary Adjudication Against Individual Plaintiffs (Haddad, Michael) (Filed on 11/21/2005) (Entered: 11/21/2005)
136 Memorandum in Opposition Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
137 OBJECTIONS to re 136 Memorandum in Opposition,, Defendant's Objections to Evidence Offered by Coles Plaintiffs in Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
138 Declaration of Don Cameron in Support of 136 Memorandum in Opposition,, Declaration of Don Cameron In Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Related document(s) 136 ) (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
139 Declaration of Gregory M. Fox in Support of 136 Memorandum in Opposition,, Dec of Fox in Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment + Ex. A, B, C (Exhibits D through R to follow) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Exhibit A to Fox Dec 38 pages# 2 Exhibit B to Fox Dec 33 pages# 3)(Related document(s) 136 ) (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
140 EXHIBITS re 139 Declaration in Support,,, Exhibits D through I to FOX DEC (J−R to follow) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Errata E to Fox Dec 3 pages# 2 Exhibit F to Fox Dec 2 page Coles Photo# 3 Exhibit G to Fox Dec 11 pages# 4 # 5 Exhibit I to Fox Dec)(Related document(s) 139 ) (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
141 Declaration of Fox Exhibits J through R filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Exhibit K# 2 Exhibit L to Fox Dec# 3 Exhibit M to Fox Dec# 4 Exhibit N to Fox Dec# 5 Exhibit O to Fox Dec# 6 Exhibit P to Fox Dec# 7 Exhibit Q to Fox Dec# 8 Exhibit

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11/21/2005 11/21/2005
11/21/2005
11/21/2005 11/21/2005 11/21/2005 11/27/2005 11/27/2005

R to Fox Dec)(Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
142 Declaration of Deputy Chief Howard Jordan in Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
143 Declaration in Support of 136 Memorandum in Opposition,, Dec of Dave Kozicki in Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment (+ Exhibits A and B) Hearing: Dec. 12, 2005 10am Ctroom 12, 19th Floor filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Exhibit Exhibits A and B to Kozicki Dec)(Related document(s) 136 ) (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
144 Declaration of Gary Tolleson in Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment ( + Exhibits A, B and C)Hearing 12 Dec 05 10am Courtroom 12, 19th Floor filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Attachments: # 1 Exhibit A and Exhibit B# 2 Exhibit C to Tolleson Dec)(Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
145 Declaration of Lieutenant Ed Tracy in Support of Defendants' Opposition to Coles' Plaintiffs' Motion for Partial Summary Judgment filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
146 Declaration of Rod Yee in Support of Defendants' Motion for Partial Summary Judgment (Hearing Dec 12, 2005, 10 am, Courtroom 12, 19th Floor filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
147 [MANUAL FILING with Attached Exhibits 1−18]...SUPPLEMENTAL Declaration of Michael J. Haddad in Support of MOTION for Partial Summary Judgment re 122 , and RESPONSE in Opposition to Defendants' MOTION for Partial Summary Judgment. Filed by Plaintiffs Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles &Ron Smith. (Related document(s) 122 ). (tn, COURT STAFF) (Filed on 11/21/2005) (Entered: 11/22/2005)
148 Reply to Opposition re 122 MOTION for Partial Summary Judgment filed byJennifer Hansen, Scott Bohning, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 11/27/2005) (Entered: 11/27/2005)
149 OBJECTIONS to re 122 MOTION for Partial Summary Judgment (Objections to Evidence Submitted by Defendants) by Jennifer Hansen, Scott Bohning, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 11/27/2005) (Entered: 11/27/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 19 of 23

11/28/2005
11/28/2005
12/05/2005
12/05/2005
12/05/2005 12/06/2005 12/06/2005 12/09/2005 12/09/2005 12/12/2005

150 Reply to Opposition Defendants' Reply to Coles' Opposition to Defendants' Motion For Summary Judgment (Hearing Date: Dec 12, 05 10am Courtroom 12, 19th Floor) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 11/28/2005) (Entered: 11/28/2005)
151 Declaration of Gregory M. Fox in Support of 150 Reply to Opposition,, Dec of G. Fox in Support of Defendants' Reply to Coles' Opposition to Defendants' Motion for Summary Judgment (Hearing Dec. 12, 2005, 10am, Courtroom 12, 19th Fl.) filed byE. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Related document(s) 150 ) (Fox, Gregory) (Filed on 11/28/2005) (Entered: 11/28/2005)
152 NOTICE of Acceptance with Offer of Judgment by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace Notice of Acceptance of Offer of Judgment by Plaintiff Dave Telles (Haddad +Goodman) (Fox, Gregory) (Filed on 12/5/2005) (Entered: 12/05/2005)
153 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As To Plaintiff DAVE TELLES Only by E. Tracey, R. Gutierez, A. Oerlemans, R. Holmgren, P. Gonzales, S. Knight, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard Jordan, Dave Kozicki, T. Hogenmiller, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, E. Romans, F. Uu, J. Doolittle, J. Fukuda, M. Nichelini, R. Moore, James Fisher, William Wallace. (Fox, Gregory) (Filed on 12/5/2005) (Entered: 12/05/2005)
156 [FILED UNDER SEAL]...LETTER to Judge Henderson re Confidential Notice of Settlement. Filed by Defendants City of Oakland &Police Chief Richard Word. (tn, COURT STAFF) (Filed on 12/5/2005) (Entered: 12/07/2005)
154 ORDER by Judge Thelton E. Henderson denying 122 Plaintiffs' Motion for Partial Summary Judgment and granting in part and denying in part 125 Defendants' Motion for Summary Judgment. Defendants' motion remains under submission on limited issues on which the Court will hear oral argument on 12/12/05. (tehlc3, COURT STAFF) (Filed on 12/6/2005) (Entered: 12/06/2005)
155 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Dave Telles only. Signed by Judge Thelton E. Henderson on 12/06/05. (rbe, COURT STAFF) (Filed on 12/6/2005) (Entered: 12/06/2005)
157 Proposed Order re 154 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment, (Stipulation to Dismiss Certain Individual Defendants) by Jennifer Hansen, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Haddad, Michael) (Filed on 12/9/2005) (Entered: 12/09/2005)
158 Letter from Gregory M. Fox authorized by Messrs Burris, Chanin, Haddad + Remar. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)
159 Minute Entry: Hearing on Dfts' Motion for Summary Judgment or in the alternative, Summary Adjudication held on 12/12/2005 before Judge Thelton E. Henderson. The motion is taken under submission. Jury Trial set for 1/24/2006 08:30 AM in Courtroom 12, 19th Floor, San Francisco. Pretrial Conference set for 1/12/2006 03:00 PM in Courtroom 12, 19th Floor, San Francisco. (Court Reporter: Jim Yeomans) (rbe, COURT STAFF) (Date Filed: 12/12/2005) (Entered: 12/12/2005)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 20 of 23

12/12/2005 12/12/2005 12/21/2005 12/22/2005
01/24/2006 01/25/2006 03/28/2006 04/27/2006 04/28/2006 05/04/2006
05/05/2006 05/05/2006
05/05/2006 05/08/2006

160 STIPULATION AND ORDER extending time to comply with the 12/06/05 Court order. Signed by Judge Thelton E. Henderson on 12/12/05. (rbe, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
161 STIPULATION AND ORDER dismissing claims against certain individual defendants. Signed by Judge Thelton E. Henderson on 12/12/05. (rbe, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
162 [FILED UNDER SEAL]...LETTER to Judge Henderson re: Confidential Notice of Case/Claims Status, Request of parties. (tn, COURT STAFF) (Filed on 12/21/2005) (Entered: 12/22/2005)
163 [FILED UNDER SEAL]...ORDER Signed by Judge Thelton E. Henderson on 12/22/05 Vacating Trial &Pretrial Dates &Granting Parties' Request for a Case Management Conference: Joint Case Management Statement due 1/9/2006 &Case Management Conference set for 1/17/2006 at 1:30 P.M.. (tn, COURT STAFF) (Filed on 12/22/2005) (Entered: 12/22/2005)
164 NOTICE by City Of Oakland of Letter Lodged Under Seal with Judge Henderson Re: Confidential Notice of Case/Claims Status, Request of Parties Re: Status Conference Scheduled for January 31, 2006 (Fox, Gregory) (Filed on 1/24/2006) (Entered: 01/24/2006)
165 [FILED UNDER SEAL]....LETTER from Attorney Gregory M. Fox, dated 1/24/2006 to Judge Thelton E. Henderson Regarding Confidential Settlement Information. (tn, COURT STAFF) (Filed on 1/25/2006) (Entered: 01/27/2006)
166 Letter from Michael J. Haddad to Judge Larson confirming settlement conference on April 20, 2006, at 2:00 pm. (Haddad, Michael) (Filed on 3/28/2006) (Entered: 03/28/2006)
167 Letter from Michael J. Haddad to Judge Larson confirming fees settlement conference on 6/7/06 at 2:00 pm. (Haddad, Michael) (Filed on 4/27/2006) (Entered: 04/27/2006)
168 ORDER SCHEDULING FURTHER SETTLEMENT CONFERENCE re 167 Letter filed by Sri Louise Coles, Ron Smith, Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson. Signed by Judge James Larson on 4/28/06. (jlsec, COURT STAFF) (Filed on 4/28/2006) (Entered: 04/28/2006)
169 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING ACTION OF PLAINTIFF SRI LOUISE COLES ONLY WITH PREJUDICE by R. Gutierez, R. Holmgren, P. Gonzales, Gary Tolleson, M Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, Dave Kozicki, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, F. Uu, J. Doolittle, James Fisher, William Wallace. (Fox, Gregory) (Filed on 5/4/2006) (Entered: 05/04/2006)
170 ORDER re 169 Stipulation of Dismissal, granting dismissal with prejudice of action by plaintiff Sri Louise Coles against all defendants. Sri Louise Coles terminated. Signed by Judge Thelton E. Henderson on 5/5/06. (epb, COURT STAFF) (Filed on 5/5/2006) (Entered: 05/05/2006)
171 OBJECTIONS to re 169 Stipulation of Dismissal,, 170 Order,, Add and Terminate Parties, TO INCORRECTLY FILED STIPULATION AND ORDER DISMISSING CLAIMS OF SRI LOUISE COLES, AND REQUEST FOR ENTRY OF CORRECT STIPULATION AND ORDER by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith. (Attachments: # 1 Proposed Order CORRECT STIPULATION AND ORDER DISMISSING CLAIMS OF SRI LOUISE COLES)(Haddad, Michael) (Filed on 5/5/2006) (Entered: 05/05/2006)
172 NOTICE by Jennifer Hansen, Dave Telles, Scott Bohning, Lindsay Parkinson, Sri Louise Coles, Ron Smith OF UNAVAILABILITY OF COUNSEL UNTIL MAY 25, 2006 (Haddad, Michael) (Filed on 5/5/2006) (Entered: 05/05/2006)
173 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING ACTION OF PLAINTIFF SRI LOUISE COLES ONLY WITH PREJUDICE by R. Gutierez, R. Holmgren, P. Gonzales, Gary Tolleson, M

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 21 of 23

05/08/2006 05/09/2006 06/09/2006 06/26/2006 06/29/2006 06/29/2006 07/27/2006 07/27/2006 07/27/2006 07/27/2006 07/31/2006
08/07/2006
08/07/2006
08/07/2006

Nichelini, L. Low, City Of Oakland, Richard Word, Patrick Haw, Rod Yee, Dave Kozicki, J. Low, A. Steinberger, B. Worden, C. Delrosario, C. Saunders, D. Campbell, F. Uu, J. Doolittle, M. Nichelini, James Fisher, William Wallace. (Fox, Gregory) (Filed on 5/8/2006) (Entered: 05/08/2006)
174 Letter from Arelene C. Helfrich Re Filing of last−edited version of Stipulation and Dismissal dismissing claims of plaintiff Sri Louise Coles. (Fox, Gregory) (Filed on 5/8/2006) (Entered: 05/08/2006)
175 STIPULATION AND ORDER dismissing action of plaintiff Sri Louise Coles only with prejudice. Signed by Judge Thelton E. Henderson on 05/09/06. (rbe, COURT STAFF) (Filed on 5/9/2006) (Entered: 05/09/2006)
176 Minute Entry: A Further Settlement Conference for Attorney Fees did not settle. (Date Filed: 6/9/2006). (jlsec, COURT STAFF) (Date Filed: 6/9/2006) (Entered: 06/09/2006)
177 Letter from Gregory M. Fox confirming June 29, 2006 Status Conference. (Fox, Gregory) (Filed on 6/26/2006) (Entered: 06/26/2006)
178 Minute Entry: Status Conference (Date Filed: 6/29/2006). Motions due by 8/7/2006. (Court Reporter − Not Reported.) (be, COURT STAFF) (Date Filed: 6/29/2006) (Entered: 06/29/2006)
Set/Reset Deadlines as to Responses due by 8/21/2006. Replies due by 8/28/2006. Motion Hearing set for 9/7/2006 02:30 PM in Courtroom 12, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 6/29/2006) (Entered: 06/29/2006)
179 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Jennifer Hansen Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
180 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Ron Smith Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
181 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Lindsay Parkinson Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
182 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Scott Bohning Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
183 STIPULATION AND ORDER dismissing action of the following plaintiffs with prejudice: Lindsay Parkinson; Ron Smith; Scott Bohning and Jennifer Hansen. Signed by Judge Thelton E. Henderson on 07/31/06. (Attachments: # 1 Dismissal of plaintiff Scott Bohning# 2 Dismissal of plaintiff Lindsay Parkinson# 3 Dismissal of plaintiff Ron Smith)(rbe, COURT STAFF) (Filed on 7/31/2006) (Entered: 07/31/2006)
184 Brief re 59 Notice (Other), Notice (Other), 103 Reply Memorandum, 55 Notice (Other) Supplemental Brief in support of Plaintiffs' FIRST Motion for Reasonable Attorneys' Fees and Costs re: Declaratory and Injunctive Relief Claims filed byDave Telles, Sri Louise Coles. (Related document(s) 59 , 103 , 55 ) (Haddad, Michael) (Filed on 8/7/2006) (Entered: 08/07/2006)
185 SECOND MOTION for for Award of Reasonable Attorneys' Fees &Costs (Re: Damages Claims for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson) Filed by Ron Smith. Motion Hearing set for 9/7/2006 02:30 PM. (Haddad, Michael) (Filed on 8/7/2006)...Modified on 8/11/2006 (tn, COURT STAFF). (Entered: 08/07/2006)
186 NOTICE by Sri Louise Coles re 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson) Notice of Manual Filing of Declarations in Support (Haddad, Michael) (Filed on 8/7/2006) (Entered: 08/07/2006)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 22 of 23

08/07/2006 08/07/2006 08/08/2006
08/21/2006 08/21/2006 08/21/2006 08/28/2006 08/28/2006 08/28/2006
08/28/2006 08/28/2006 08/28/2006 09/07/2006

187 NOTICE by Sri Louise Coles re 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson) Notice of Reliance on Previously Filed Declarations in Related Case (Haddad, Michael) (Filed on 8/7/2006) (Entered: 08/07/2006)
188 CERTIFICATE OF SERVICE by Sri Louise Coles re 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson) (Haddad, Michael) (Filed on 8/7/2006) (Entered: 08/07/2006)
189 [MANUAL FILING] PLAINTIFFS' INDEX of Declarations &Declarations: Second Supplemental Declaration of Michael J. Haddad; Supplemental Declaration of Julia Sherwin; Declaration of Richard M. Pearl; Second Supplemental Declaration of Richard M. Pearl; Declaration of Michael W. Bie in Support of Plaintiffs' Motion for Award of Reasonable Attorneys' Fees &Costs. (tn, COURT STAFF) (Filed on 8/8/2006) (Entered: 08/10/2006)
190 Memorandum in Opposition Defendants' Opposition to Coles Counsel's Motion For Attorney Fees and Costs Re: Damage Claims filed byCity Of Oakland, Richard Word. (Fox, Gregory) (Filed on 8/21/2006) (Entered: 08/21/2006)
191 Memorandum in Opposition Defendants' Opposition to Coles Counsel's Motion for Attorney Fees and Costs Re: Damage Claims filed byCity Of Oakland, Richard Word. (Fox, Gregory) (Filed on 8/21/2006) (Entered: 08/21/2006)
192 Declaration of Gregory M. Fox in Support of 191 Memorandum in Opposition, 190 Memorandum in Opposition Re: Attorney Fee Motions filed byCity Of Oakland, Richard Word. (Attachments: # 1 Exhibit Exhibits A−H to Fox Declaration)(Related document(s) 191 , 190 ) (Fox, Gregory) (Filed on 8/21/2006) (Entered: 08/21/2006)
193 Reply to Opposition (Supplemental Briefing re: First Motion for Fees and Costs related to Injunctive Relief Claims filed bySri Louise Coles. (Haddad, Michael) (Filed on 8/28/2006) (Entered: 08/28/2006)
194 Reply to Opposition re 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson) filed bySri Louise Coles. (Haddad, Michael) (Filed on 8/28/2006) (Entered: 08/28/2006)
195 Declaration of Richard Pearl in Support of 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson), 55 Notice (Other) (and in Support of First Motion for Attorney Fees Re: Injunctive Relief) ("Pearl 3d Supp. Declaration") filed bySri Louise Coles. (Attachments: # 1 Exhibit Pearl Supplemental Time Records)(Related document(s) 185 , 55 ) (Haddad, Michael) (Filed on 8/28/2006) (Entered: 08/28/2006)
196 NOTICE by Sri Louise Coles re 185 Second MOTION for Attorney Fees Re: Damages Claims (for Ron Smith, Scott Bohning, Jennifer Hansen, and Lindsay Parkinson), 184 Brief, (Notice of Manual Filing of 3d Supp. Declaration of Michael J. Haddad in support of First and Second Fee Motions, with Exhibits) (Haddad, Michael) (Filed on 8/28/2006) (Entered: 08/28/2006)
197 CERTIFICATE OF SERVICE by Sri Louise Coles re 193 Reply to Opposition, 194 Reply to Opposition (Haddad, Michael) (Filed on 8/28/2006) (Entered: 08/28/2006)
198 THIRD SUPPLEMENTAL DECLARATION of Michael J. Haddad in support of Coles Plaintiffs' Motions for Award of Reasonable Attorneys' Fees and Costs filed by Coles Plaintiffs. (far, COURT STAFF) (Filed on 8/28/2006) (Entered: 08/31/2006)
199 Minute Entry: Motion Hearing held on 9/7/2006 before Judge Thelton E. Henderson re 185 Plaintiff's Second MOTION for Attorney Fees. Matter submitted. (Court Reporter Connie Kuhl.) (epb, COURT STAFF) (Date Filed: 9/7/2006) (Entered: 09/07/2006)

Case: 3:03-cv-02961 As of: 10/23/2009 08:38 AM PDT 23 of 23

09/13/2006 09/14/2006 09/14/2006 09/18/2006 01/04/2007

200 Declaration of ARLENE HELFRICH [SUPPLEMENTAL] IN SUPPORT OF CITY OF OAKLAND'S OPPOSITION TO ATTORNEY FEE MOTIONS filed byCity Of Oakland, Richard Word. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Fox, Gregory) (Filed on 9/13/2006) (Entered: 09/13/2006)
201 CERTIFICATE OF SERVICE by City Of Oakland, Richard Word re 200 Declaration in Support EXHIBIT A TO SAID DECLARATION (Fox, Gregory) (Filed on 9/14/2006) (Entered: 09/14/2006)
203 NOTICE OF MANUAL FILING of Exhibit "A" to re 200 Supplemental Declaration of Arlene Helfrich in Support of City of Oakland's Opposition to Attorney's Fee Motions Filed by Defendants City Of Oakland &Police Chief Richard Word. (tn, COURT STAFF) (Filed on 9/14/2006) (Entered: 09/18/2006)
202 OBJECTIONS to re 200 Declaration in Support by Sri Louise Coles. (Haddad, Michael) (Filed on 9/18/2006) (Entered: 09/18/2006)
204 ORDER by Judge Thelton E. Henderson granting in part and denying in part 184 185 Plaintiffs' Motions for Attorneys' Fees and Costs. (tehlc3, COURT STAFF) (Filed on 1/4/2007) (Entered: 01/04/2007)

 
 Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 1 of 68
ADRMOP, CLOSED, CONSOL, E−Filing, REFSET−JL
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:03−cv−02962−TEH

Local 10, International Longshore and Warehouse Un v. City Of Date Filed: 06/26/2003

Oakland et al

Date Terminated: 07/31/2006

Assigned to: Hon. Thelton E. Henderson

Jury Demand: Both

Cause: 42:1983 Civil Rights Act

Nature of Suit: 440 Civil Rights: Other

Jurisdiction: Federal Question

Plaintiff

Local 10, International Longshore and Warehouse Union TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: aschlosser@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , 503 Dolores Street, #201 San Francisco, CA 94110−1564

415−255−0301 Fax: 510−601−5780 Email: bstein8692@aol.com ATTORNEY TO BE NOTICED

James B. Chanin Law Offices of James B. Chanin 3050 Shattuck Avenue Berkeley, CA 94705 510−848−4752 Fax: 510−848−5819 Email: jbcefiling@aol.com ATTORNEY TO BE NOTICED

John L. Burris Law Offices of John L. Burris 7677 Oakport St, Ste 1120 Oakland, CA 94621 510−839−5200 Fax: 510−839−3882 Email: john.burris@johnburrislaw.com ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED

Julie M. Houk James B. Chanin Law Offices 3050 Shattuck Avenue

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 2 of 68

Berkeley, CA 94705 510−848−4752 Email: juliemhouk@aol.com ATTORNEY TO BE NOTICED

Mark Schlosberg American Civil Liberties Union Fndt. 1663 Mission Street, Suite 460 San Francisco, CA 94103 415−621−2493 Fax: 415−255−8437 ATTORNEY TO BE NOTICED

Osha Neumann 1840 Woolsey Street Berkeley, CA 94703 510−644−2429 Fax: 510−540−4821 ATTORNEY TO BE NOTICED

Rachel Lederman Law Offices of Rachel Lederman & Alexsis C. Beach 558 Capp Street San Francisco, CA 94110 415 282 9300 Fax: (415) 285−5066 Email: rlederman@2momslaw.com ATTORNEY TO BE NOTICED

Rob Remar Leonard Carder LLP 1188 Franklin Street, #201 San Francisco, CA 94109 415−447−0403 Fax: 415−771−7010 ATTORNEY TO BE NOTICED

Robert Steven Remar Leonard Carder, LLP 1188 Franklin Street, Suite 201 San Francisco, CA 94109 (415) 771−6400 Fax: (415) 771−7010 Email: rremar@leonardcarder.com ATTORNEY TO BE NOTICED

Plaintiff
Billy Kepoo TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 3 of 68

Plaintiff Allen Chapman TERMINATED: 07/31/2006
Plaintiff Christopher Clay TERMINATED: 07/31/2006

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 4 of 68

Plaintiff
Silas Dunn TERMINATED: 07/31/2006

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 5 of 68

(See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Willie Hamlin TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ernest Evans TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq.

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 6 of 68

(See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Loville TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lawrence Massey TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein ,

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 7 of 68

(See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Byron Moore, Sr. TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 8 of 68

Plaintiff John Nishinaga TERMINATED: 12/12/2005
Plaintiff Willow Rosenthal TERMINATED: 12/09/2005

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 9 of 68

Plaintiff Jessica Lawrence TERMINATED: 07/31/2006
Plaintiff Scott Fleming TERMINATED: 07/31/2006

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 10 of 68

Plaintiff
Jennifer Schockemoehl TERMINATED: 06/15/2005

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 11 of 68

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lawrence Menard TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jeffrey Crow Bolt TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 12 of 68

(See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Matthew Dodt TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rebecca Sonchek TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 13 of 68

(See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Terrence Enright TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 14 of 68

Plaintiff Arthur Martinez TERMINATED: 07/31/2006
Plaintiff Henry Norr TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 15 of 68

Plaintiff Steven Sakala TERMINATED: 06/15/2005
Plaintiff Susan Quinlan TERMINATED: 06/15/2005

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 16 of 68

Plaintiff Tim Ridolfi TERMINATED: 07/31/2006
Plaintiff

John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 17 of 68

Alicia Grogan−Brown TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kenneth Hayes TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 18 of 68

(See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dean Royer TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bernadine Mellis TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 19 of 68

(See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Thomas Becker TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Patricia "Max" Rorty TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 20 of 68

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jesse Christensen TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 21 of 68

Plaintiff Diana Bohn TERMINATED: 07/31/2006
Plaintiff Miles Montabano TERMINATED: 07/31/2006

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 22 of 68

Plaintiff Nicholas Frabasilio TERMINATED: 06/15/2005
Plaintiff Cyprus Gonzalez TERMINATED: 06/15/2005

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 23 of 68

Plaintiff
Kristin Meeker TERMINATED: 07/31/2006

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
John L. Burris (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
Osha Neumann

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 24 of 68

(See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Eric Shaw TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Violeta Foregger TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq.

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 25 of 68

(See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Chelsea Smith TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein , (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Aidan Kotler TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bobbie Fay Stein ,

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 26 of 68

(See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

John L. Burris (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Osha Neumann (See above for address) ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lesley Krueger TERMINATED: 06/15/2005

represented by James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Marko Sakmann TERMINATED: 06/15/2005

represented by James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Judith Mirkinson TERMINATED: 06/15/2005

represented by James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vaahdat Saadat TERMINATED: 06/15/2005

represented by James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 27 of 68

Plaintiff Clay Hinson TERMINATED: 07/31/2006
Plaintiff Marc De Giere TERMINATED: 07/31/2006
Plaintiff David Martinez TERMINATED: 06/15/2005

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 28 of 68

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Laura Ariel Glenn TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sarah Kennedy TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Chanin

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 29 of 68

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cliff Close TERMINATED: 12/12/2005

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kate Sassoon TERMINATED: 06/15/2005

represented by Alan Lawrence Schlosser (See above for address)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 30 of 68

LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jack Heyman TERMINATED: 07/31/2006

represented by Alan Lawrence Schlosser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Burris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Schlosberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 31 of 68
Rachel Lederman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City Of Oakland
Defendant Police Chief Richard Word Defendant Patrick Haw Defendant Rod Yee Defendant E. Poulson Defendant Howard A. Jordan Defendant Dave Kozicki Defendant T. Hogenmiller

represented by Gregory Mellon Fox Bertrand Fox &Elliot The Waterfront Building 2749 Hyde Street San Francisco, CA 94109 415/353−0999 Fax: 415/353−0990 Email: gfox@bfesf.com ATTORNEY TO BE NOTICED
Randolph W. Hall Oakland City Attorney's Office One Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 510/238−3701 Fax: (510) 238−6500 Email: rwhall@oaklandcityattorney.org ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 32 of 68

Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant E. Tracey

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant R. Gutierez

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant A. Oerleamns

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant R. Holmgren

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant P. Gonzales

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant S. Knight

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant M. Randall

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Chan R. Orozco

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant G Bellusa

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant P. Huppert

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Mr. J. Scott

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 33 of 68

Defendant J. Kurzrock
Defendant M. Mack
Defendant Officer J. Kelly
Defendant Officer Souza
Defendant J. Muschi
Defendant S. Johnson
Defendant Officer Karsaboom
Defendant Sergeant G. Tolleson
Defendant Sergeant D. Campell
Defendant Officer R. Moore
Defendant Officer A. Steinberger
Defendant Officer F. UU

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 34 of 68

Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer B. Worden

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer J. Fukada

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer J. Doolittle

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant
C. Saunders Officer

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer E. Romans

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer C. Delrosario

represented by Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Sri Louise Coles Plaintiff in related case No. 03−02961 TEH

represented by Michael J. Haddad Haddad &Sherwin 505 17th Street Oakland, CA 94612 510−452−5500 Fax: 510−452−5510 Email: haddad.sherwin@sbcglobal.net ATTORNEY TO BE NOTICED

Date Filed 06/26/2003

# Docket Text
1 COMPLAINT against City Of Oakland, P. Gonzales, R. Gutierez, Patrick Haw, T. Hogenmiller, R. Holmgren, Howard A. Jordan, S. Knight, Dave Kozicki, A. Oerleamns, E. Poulson, M. Randall, E. Tracey, Richard Word, Rod Yee (Filing fee $150 receipt number 3348854). Filed by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alica Grogan−Brown, Willie Hamlin, Kenneth Hayes, Billy Kepoo, Aidan Kotler, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Steven Sakala, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (mmt, COURT STAFF) Additional attachment(s) added on 7/16/2003 (slh, ). (Entered:

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06/26/2003 06/26/2003 06/26/2003 07/08/2003
07/11/2003 07/14/2003 07/18/2003
07/18/2003
07/18/2003

06/27/2003)
Summons Issued as to City Of Oakland ; P. Gonzales ; R. Gutierez ; Patrick Haw ; T. Hogenmiller ; R. Holmgren ; Howard A. Jordan ; S. Knight ; Dave Kozicki ; A. Oerleamns ; E. Poulson ; M. Randall ; E. Tracey ; Richard Word ; Rod Yee (mmt, COURT STAFF) (Entered: 06/27/2003)
2 ADR SCHEDULING ORDER: Case Management Statement due by 10/21/2003. Case Management Conference set for 10/28/2003 at 02:00 PM. (Attachments: # 1 Standing Order)(mmt, COURT STAFF) (Entered: 06/27/2003)
CASE DESIGNATED for Electronic Filing. (mmt, COURT STAFF) (Entered: 06/27/2003)
3 NOTICE of Related Case (Amended Notice) by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Billy Kepoo, Aidan Kotler, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Steven Sakala, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (Attachments: # 1 proof of service)(Mass, Julia) (Entered: 07/08/2003)
4 RESPONSE to PLAINTIFFS' NOTICES OF RELATED CASES FILED IN THE MATTERS OF SRI LOUISE COLES, ET AL. V. CITY OF OAKLAND, CASE NO. 03−2961 MMC AND LOCAL 21, ET AL. V. CITY OF OAKLAND, ET AL. CASE NO. C03−2962 MJJ (Civil Local Rule 3−12) by City Of Oakland. (Hall, Randolph) (Entered: 07/11/2003)
5 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer re: 1 . (slh) (Entered: 07/14/2003)
6 First AMENDED COMPLAINT against all defendants. Filed by Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Billy Kepoo, Aidan Kotler, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Steven Sakala, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (Mass, Julia) (Entered: 07/18/2003)
7 Summons Returned Unexecuted as to defendants, filed by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Clay Hinson, Billy Kepoo, Aidan Kotler, Lesley Krueger, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Judith Mirkinson, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, A. Oerleamns, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Vaahdat Saadat, Steven Sakala, Marko Sakmann, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (slh, ) (Entered: 07/21/2003)
Summons Issued as to City Of Oakland ; P. Gonzales ; R. Gutierez ; Patrick Haw ; T. Hogenmiller ; R. Holmgren ; Howard A. Jordan ; S. Knight ; Dave Kozicki ; A. Oerleamns ; E. Poulson ; M. Randall ; E. Tracey ; Richard Word ; Rod Yee (slh, ) (Entered: 07/21/2003)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 36 of 68

08/11/2003 08/18/2003 01/08/2004 01/20/2004 01/21/2004 01/26/2004 01/27/2004
01/28/2004 01/28/2004
01/29/2004 04/26/2004

8 ORDER REASSIGNING/RELATING CASE to lead case no. C00−4599 TEH. Case reassigned to Judge Thelton E. Henderson for all further proceedings. Judge Martin J. Jenkins no longer assigned to case. Signed by Judge Thelton E. Henderson on 7/31/03. (rbe) Modified on 8/11/2003 (rbe). (Entered: 08/11/2003)
9 ORDER REFERRING CASE to Magistrate Judge Larson for Settlement. Signed by Judge Thelton E. Henderson on 8/18/03. (rbe) (Entered: 08/18/2003)
10 Letter to the Court from Gregory M. Fox of Bertrand Fox &Elliot confirming the two cases captioned above, that the initial case management conference is set for 1/26/04 at 1:30 PM. (db, COURT STAFF) (Filed on 1/8/2004) Additional attachment(s) added on 1/22/2004 (rbe, COURT STAFF). (Entered: 01/13/2004)
11 JOINT CASE MANAGEMENT STATEMENT filed by City Of Oakland. (Fox, Gregory) (Filed on 1/20/2004) (Entered: 01/20/2004)
12 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer defendant's counsel filed docket entry #10, letter to the court regarding case management conference, to be submitted to the court manually for the file. (db, COURT STAFF) (Filed on 1/21/2004) (Entered: 01/21/2004)
13 Minute Entry: Initial Case Management Conference held on 1/26/2004 before Judge Thelton E. Henderson. Further Case Management Conference set for 5/3/2004 01:30 PM. (not reported) (rbe, COURT STAFF) (Date Filed: 1/26/2004) (Entered: 01/26/2004)
14 STIPULATION And Order Granting Plaintiffs leave to File Second Amended Complaint by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Clay Hinson, Billy Kepoo, Aidan Kotler, Lesley Krueger, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Judith Mirkinson, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Vaahdat Saadat, Steven Sakala, Marko Sakmann, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (Chanin, James) (Filed on 1/27/2004) (Entered: 01/27/2004)
15 STIPULATION AND ORDER granting plaintiffs leave to file second amended complaint. Signed by Judge Thelton E. Henderson on 1/28/04. (rbe, COURT STAFF) (Filed on 1/28/2004) (Entered: 01/28/2004)
16 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF against all defendants. Filed by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Clay Hinson, Billy Kepoo, Aidan Kotler, Lesley Krueger, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Judith Mirkinson, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Vaahdat Saadat, Steven Sakala, Marko Sakmann, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (Chanin, James) (Filed on 1/28/2004) Modified on 1/29/2004 (db, COURT STAFF). (Entered: 01/28/2004)
2nd Amended Complaint Summons Issued by the plaintiff as to all defendants(db, COURT STAFF) (Filed on 1/29/2004) Modified on 1/29/2004 (db, COURT STAFF). (Entered: 01/29/2004)
17 JOINT CASE MANAGEMENT STATEMENT (Further) filed by Thomas Becker, Diana Bohn, Jeffrey Crow Bolt, Allen Chapman, Jesse Christensen, Christopher Clay, Matthew Dodt, Silas Dunn, Terrence Enright, Ernest Evans, Scott Fleming, Violeta Foregger, Nicholas Frabasilio, Cyprus Gonzalez, Alicia Grogan−Brown, Willie Hamlin, Kenneth Hayes, Clay Hinson, Billy Kepoo, Aidan Kotler, Lesley

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 37 of 68

05/06/2004 05/06/2004 07/21/2004 08/11/2004 09/09/2004 09/15/2004 09/16/2004 09/16/2004 09/17/2004 10/26/2004
11/08/2004 11/09/2004 11/18/2004 11/23/2004

Krueger, Jessica Lawrence, Local 10, International Longshore and Warehouse Union, David Loville, Arthur Martinez, Lawrence Massey, Kristin Meeker, Bernadine Mellis, Lawrence Menard, Judith Mirkinson, Miles Montabano, Byron Moore Sr., John Nishinaga, Henry Norr, Susan Quinlan, Tim Ridolfi, Patricia "Max" Rorty, Willow Rosenthal, Dean Royer, Vaahdat Saadat, Steven Sakala, Marko Sakmann, Jennifer Schockemoehl, Eric Shaw, Chelsea Smith, Rebecca Sonchek. (Chanin, James) (Filed on 4/26/2004) (Entered: 04/26/2004)
18 NOTICE OF SETTLEMENT CONFERENCE AND SETTLEMENT CONFERENCE ORDER. Signed by Judge James Larson on 5/6/04. (jlsec, COURT STAFF) (Filed on 5/6/2004) (Entered: 05/06/2004)
19 NOTICE OF SETTLEMENT CONFERENCE AND NEW DATE OF SETTLEMENT CONFERENCE ORDER. Signed by Judge James Larson on 5/6/04. (jlsec, COURT STAFF) (Filed on 5/6/2004) (Entered: 05/06/2004)
20 Minute Entry: Settlement Conference held on 7/16/04. The Case Did Not Settle. (Date Filed: 7/21/2004). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 7/21/2004) (Entered: 07/21/2004)
21 JOINT CASE MANAGEMENT STATEMENT filed by Local 10, International Longshore and Warehouse Union. (Chanin, James) (Filed on 8/11/2004) (Entered: 08/11/2004)
22 STIPULATION and [Proposed] Order Extending Time by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 9/9/2004) (Entered: 09/09/2004)
23 NOTICE by Attorneys for Plaintiffs: Counsel Haddad &Sherwin will be out of the country and unavailable for any purposed from September 20, 2004 to October 4, 2004. Julia Sherwin(db, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/16/2004)
24 STIPULATION /Order Granting Leave to File Third Amended Complaint by Local 10, International Longshore and Warehouse Union. (Lederman, Rachel) (Filed on 9/16/2004) (Entered: 09/16/2004)
25 AMENDED COMPLAINT Third Amended Complaint against all defendants. Filed by Local 10, International Longshore and Warehouse Union. (Lederman, Rachel) (Filed on 9/16/2004) (Entered: 09/16/2004)
26 STIPULATION AND ORDER granting plaintiffs leave to file third amended complaint. Signed by Judge Thelton E. Henderson on 9/17/04. (rbe, COURT STAFF) (Filed on 9/17/2004) (Entered: 09/17/2004)
27 ORDER for PRETRIAL PREPARATION: Case Management Conference set for 11/29/2004 01:30 PM. Discovery due by 10/3/2005. Jury Trial set for 1/17/2006 08:30 AM for an estimated 30 days. Motion Hearing set for 11/28/2005 10:00 AM. Motions due by 10/24/2005. Pretrial Conference set for 1/9/2006 03:00 PM. Case referred to Mag. Judge Larson for settlement. Signed by Judge Thelton E. Henderson on 10/25/04. (rbe, COURT STAFF) (Filed on 10/26/2004) (Entered: 10/26/2004)
28 STIPULATION STIPULATION AND [PROPOSED] ORDER EXTENDING TIME FOR DEFENDANTS CITY OF OAKLAND TO FILE FIRST RESPONSIVE PLEADING by City Of Oakland. (Fox, Gregory) (Filed on 11/8/2004) (Entered: 11/08/2004)
29 STIPULATION AND ORDER extending time for the City of Oakland to file first responsive pleading. Signed by Judge Thelton E. Henderson on 11/9/04. (rbe, COURT STAFF) (Filed on 11/9/2004) (Entered: 11/09/2004)
30 Minute Entry: Settlement Conference held on 11/18/04. Case did not settle. (Date Filed: 11/18/2004). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 11/18/2004) (Entered: 11/18/2004)
31 STIPULATION and [PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE DATE by City Of Oakland. (Fox, Gregory) (Filed on 11/23/2004) (Entered: 11/23/2004)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 38 of 68

11/23/2004 12/20/2004 12/28/2004 01/18/2005 01/18/2005 01/24/2005
01/28/2005 02/03/2005 02/18/2005 02/24/2005 02/24/2005 02/24/2005 02/24/2005
02/24/2005
02/24/2005
02/25/2005
02/25/2005

32 STIPULATION AND ORDER continuing the case managementconference to 2/14/2005 01:30 PM. Signed by Judge Thelton E. Henderson on 11/23/04. (rbe, COURT STAFF) (Filed on 11/23/2004) (Entered: 11/23/2004)
33 STIPULATION and (Proposed) Order Partially Settling Plaintiffs' Claims for Injunctive Relief by Sri Louise Coles. (Attachments: # 1)(Haddad, Michael) (Filed on 12/20/2004) (Entered: 12/20/2004)
34 STIPULATION AND ORDER approving partial settlement of plaintiffs' claims for injunctive relief. Signed by Judge Thelton E. Henderson on 12/24/04. (rbe, COURT STAFF) (Filed on 12/28/2004) (Entered: 12/28/2004)
35 Letter from Gregory M. Fox, January 14, 2005. (Fox, Gregory) (Filed on 1/18/2005) (Entered: 01/18/2005)
36 Letter from Michael J. Haddad. (Haddad, Michael) (Filed on 1/18/2005) (Entered: 01/18/2005)
37 STIPULATION AND ORDER setting briefing schedule and hearing date. Dfts' Motion Dismiss is set for 3/7/2005 10:00 AM. Signed by Judge Thelton E. Henderson on 1/21/05. (rbe, COURT STAFF) (Filed on 1/24/2005) (Entered: 01/24/2005)
38 MOTION to Dismiss for Failure to State a Claim, Pursuant to FRCP 12(b)(6) filed by City Of Oakland. Motion Hearing set for 3/7/2005 10:00 AM. (Fox, Gregory) (Filed on 1/28/2005) (Entered: 01/28/2005)
39 AFFIDAVIT in Opposition to Def's Mot. to Dismiss filed byLocal 10, International Longshore and Warehouse Union. (Schlosser, Alan) (Filed on 2/3/2005) (Entered: 02/03/2005)
40 Reply to Opposition to 12(b)(6) Motion filed byCity Of Oakland. (Fox, Gregory) (Filed on 2/18/2005) (Entered: 02/18/2005)
41 NOTICE by Kristin Meeker DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF KRISTIN MEEKER (Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
42 NOTICE by Marc De Giere DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF MARK DEGIERE (Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
43 NOTICE by Diana Bohn DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF DIANA BOHN (Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
44 NOTICE of Acceptance with Offer of Judgment by Diana Bohn (Attachments: # 1 Exhibit (RULE 68) DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF DIANA BOHN# 2 Proof of Service)(Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
45 NOTICE of Acceptance with Offer of Judgment by Marc De Giere (Attachments: # 1 Exhibit (RULE 68) DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF MARK DEGIERE# 2 Proof of Service)(Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
46 NOTICE of Acceptance with Offer of Judgment by Kristin Meeker (Attachments: # 1 Exhibit DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF KRISTIN MEEKER# 2 Proof of Service)(Chanin, James) (Filed on 2/24/2005) (Entered: 02/24/2005)
47 NOTICE by Patricia "Max" Rorty (RULE 68) DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF PATRICIA MAX RORTY (Chanin, James) (Filed on 2/25/2005) (Entered: 02/25/2005)
48 NOTICE by Eric Shaw DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF ERIC SHAW

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(Chanin, James) (Filed on 2/25/2005) (Entered: 02/25/2005)
49 NOTICE of Acceptance with Offer of Judgment by Eric Shaw (Attachments: # 1 Exhibit DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF ERIC SHAW# 2 Proof of Service)(Chanin, James) (Filed on 2/25/2005) (Entered: 02/25/2005)
50 NOTICE of Acceptance with Offer of Judgment by Patricia "Max" Rorty (Attachments: # 1 Exhibit DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF PATRICIA MAX RORTY# 2 Proof of Service)(Chanin, James) (Filed on 2/25/2005) (Entered: 02/25/2005)
51 Minute Entry: Motion Hearing held on 3/7/2005 before Judge Thelton E. Henderson. Dfts' Motion to Dismiss is taken under submission. (Court Reporter: Debra Pas) (rbe, COURT STAFF) (Date Filed: 3/7/2005) (Entered: 03/07/2005)
52 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF LAWRENCE MENARD (Chanin, James) (Filed on 3/31/2005) (Entered: 03/31/2005)
53 *** FILED IN ERROR. PLEASE SEE DOCKET # 56 . *** NOTICE by Lawrence Menard OF ACCEPTANCE OF DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE (F.R.C.P, 68) (Chanin, James) (Filed on 3/31/2005) Modified on 4/8/2005 (ewn, COURT STAFF). (Entered: 03/31/2005)
54 NOTICE by Scott Fleming DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE TO PLAINTIFF SCOTT FLEMING (Chanin, James) (Filed on 4/1/2005) (Entered: 04/01/2005)
55 NOTICE by Scott Fleming ACCEPTANCE OF DEFENDANT CITY OF OAKLAND'S OFFER OF JUDGMENT AND OFFER TO COMPROMISE (Attachments: # 1 Exhibit 1)(Chanin, James) (Filed on 4/1/2005) (Entered: 04/01/2005)
56 NOTICE by Lawrence Menard CORRECTION OF DOCKET # 53 (Attachments: # 1)(Chanin, James) (Filed on 4/5/2005) (Entered: 04/05/2005)
57 ORDER by Judge Thelton E. Henderson denying 38 Motion to Dismiss. (tehlc3, COURT STAFF) (Filed on 4/27/2005) (Entered: 04/27/2005)
58 NOTICE by City Of Oakland DEFENDANT'S NOTICE OF PENDENCY OF OTHER ACTION/RELATED CASE (Hall, Randolph) (Filed on 5/12/2005) (Entered: 05/12/2005)
59 STIPULATION AND PROPOSED ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE FOR PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS RE: OPD'S CROWD CONTROL POLICY by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 5/16/2005) (Entered: 05/16/2005)
60 CLERK'S NOTICE: Case numbers C03−2961 and C03−2962 TEH are not related to C03−3304 MJJ. (rbe, COURT STAFF) (Filed on 5/23/2005) (Entered: 05/23/2005)

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61 STIPULATION AND ORDER setting briefing schedule and hearing date for plaintiffs' motion for attorneys' fees and costs re OPD's crowd control policy. Signed by Judge Thelton E. Henderson on 5/19/05. (rbe, COURT STAFF) (Filed on 5/23/2005) (Entered: 05/23/2005)
62 RECEIVED PROPOSED STIPULATION AND ORDER GRANTING PARTIES LEAVE TO FILE MEMORANDA IN SUPPORT OF, AND OPPOSITION TO, LOCAL 10 PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS IN EXCESS OF 25 PAGES by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Chanin, James) (Filed on 5/26/2005) Modified on 5/27/2005 (db, COURT STAFF). (Entered: 05/26/2005)
63 MOTION FOR REQUEST FOR CERTIFICATION PURSUANT TO 28 U.S.C. 1292 (b) (Fox, Gregory) (Filed by City of Oakland, Richard Word, on 5/27/2005) Modified on 5/31/2005 (db, COURT STAFF). (Entered: 05/27/2005)
64 MEMORANDUM in Support OF MOTION FOR REQUEST FOR CERTIFICATION OF ORDER FOR APPEAL PURSUANT TO 28 U.S.C. 1292 (b) filed byCity Of Oakland, Richard Word. (Attachments: # 1 Exhibit EXHIBIT A)(Fox, Gregory) (Filed on 5/27/2005) (Entered: 05/27/2005)
65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES filed by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. Motion Hearing set for 7/11/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
66 EXHIBITS INDEX OF DECLARATIONS AND EVIDENCE IN SUPPORT OF LOCAL 10 PLAINTIFFS' MOTION FOR AND AWARD OF ATTORNEYS' FEES AND COSTS filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 1: James B. Chanin Declaration# 2 Exhibit Exhibit 1A: Stipulation and Order for Partial Settlement of Injunctive Relief Claims# 3 Exhibit Exhibit 1B: Photographs of Willow Rosenthal's Injuries# 4

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Exhibit Exhibit 1C: Article Regarding United Nations Commission# 5 Exhibit Exhibit 1D: Haw Document Regarding "Party at the Port" and Congratulating Command Staff# 6 Exhibit Exhibit 1E: Richard Word Deposition Excerpt# 7 Exhibit Exhibit 1F: James B. Chanin's Itemization of Hours Cited# 8 Exhibit Exhibit G: James B. Chanin Costs Summary# 9 Exhibit Exhibit H: May 25, 2005 Boston Herald News Article)(Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
67 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES, 66 Exhibits,,,,,,, Exhibit 2: Jovan Johnson Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 , 66 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
68 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 3: ALAN SCHLOSSERS DECLARATION filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 3A: Schlosser's Resume# 2 Exhibit Exhibit 3B: Alan Schlosser's and ACLU's Itemization of Hours Claimed)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
69 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 4: JOHN CREW DECLARATION filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
70 EXHIBITS EXHIBIT 5: John Burris Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl,

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Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 5A: John L. Burris' Itemization of Hours Claimed)(Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
71 EXHIBITS EXHIBIT 6: Bobbie Stein Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 6A: Bobbie Stein's Itemization of Hours Claimed)(Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
72 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 7: OSHA NEUMANN DECLARATION filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 7A: Osha Neumann's Resume# 2 Exhibit Exhibit 7B: Osha Neumann's Itemization of Hours Claimed)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
73 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Exhibit 8: Rachel Lederman Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 8A: Rachel Lederman's Itemization of Hours

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Claimed# 2 Exhibit Exhibit 8B: Rachel Lederman's Resume)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
74 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Exhibit 9: Julie Houk's Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 9A: Julie Houk's Itemization of Hours Claimed)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
75 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Exhibit 10: Robert Remar Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 10A: Robert Remar's Itemization of Hours Claimed)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
76 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Exhibit 11: Michael Bien Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Exhibit 11A: Michael Bien's Resume)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
77 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 12: Pamela Price Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry

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05/27/2005 05/27/2005 05/27/2005

Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
78 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 13: Howard Friedman Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
79 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 14: ALAN GRAF DECLARATION filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
80 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 15: John Streeter Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)

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05/27/2005 05/27/2005 05/27/2005 05/27/2005

81 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 16: Mark Vermuellen Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
82 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 17: Carol Sobel Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
83 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT 18: John Scott Declaration filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit EXHIBIT 18A: 2004 National Law Journal Billing Survey)(Related document(s) 65 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
84 EXHIBITS re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES, 66 Exhibits,,,,,,, EXHIBIT 1H: May 25, 2005 Boston Herald News Article filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 46 of 68

05/27/2005
05/31/2005 06/02/2005 06/03/2005 06/03/2005 06/09/2005
06/09/2005

Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 65 , 66 ) (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
85 Proposed Order re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES PROPOSED ORDER GRANTING LOCAL 10 PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Chanin, James) (Filed on 5/27/2005) (Entered: 05/27/2005)
86 STIPULATION AND ORDER granting parties leave to file memoranda in excess of 25 pages. Signed by Judge Thelton E. Henderson on 5/26/05. (rbe, COURT STAFF) (Filed on 5/31/2005) (Entered: 05/31/2005)
87 STIPULATION AND PROPOSED ORDER EXTENDING TIME FOR DEFENDANTS CITY OF OAKLANDS TO FILE ANSWER IN LOCAL 10 ACTION by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 6/2/2005) (Entered: 06/02/2005)
88 STIPULATION AND ORDER extending time for defendant City of Oakland to file its answer until 06/06/05. Signed by Judge Thelton E. Henderson on 6/3/05. (rbe, COURT STAFF) (Filed on 6/3/2005) (Entered: 06/03/2005)
89 NOTICE by City Of Oakland, Richard Word OF UNAVAILABILITY OF COUNSEL (Fox, Gregory) (Filed on 6/3/2005) (Entered: 06/03/2005)
90 STIPULATION AND ORDER CONTINUING HEARING DATE ON LOCAL 10 PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS, EXTENDING DEFENDANTS' DEADLINE TO FILE ANSWER TO THIRD AMENDED COMPLAINT, AND AGREEMENT BY DEFENDANTS TO NOT REQUEST A STAY RE INTERLOCUTORY APPEAL by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Chanin, James) (Filed on 6/9/2005) (Entered: 06/09/2005)
91 STIPULATION of Dismissal TO INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF DIANA BOHN ONLY by City Of Oakland. (Fox, Gregory) (Filed on 6/9/2005) (Entered: 06/09/2005)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 47 of 68

06/09/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005

92 STIPULATION AND ORDER continuing the hearing date on plaintiffs' motion for attorneys' fees. Motion Hearing set for 9/19/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 6/9/05. (rbe, COURT STAFF) (Filed on 6/9/2005) (Entered: 06/09/2005)
93 STIPULATION AND [PROPOSED ORDER] DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF MARK DEGIERE ONLY by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
94 STIPULATION AND [PROPOSED ORDER] DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF KRISTIN MEEKER ONLY by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
95 STIPULATION AND [PROPOSED ORDER] DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF PATRICIA "MAX" RORTY ONLY by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
96 STIPULATION AND [PROPOSED ORDER] DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF ERIC SHAW ONLY by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
97 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF THOMAS BECKER ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
98 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF ALICIA GROGAN BROWN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
99 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF JESSE CHRISTENSEN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
100 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF MATTHEW DODT ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
101 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF TERRENCE ENRIGHT ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
102 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF VIOLETA FORREGER ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
103 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF NICHOLAS FRABASILIO ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
104 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Diana Bohn only. Signed by Judge Thelton E. Henderson on 6/9/05. (rbe, COURT STAFF) (Filed on 6/10/2005) (Entered: 06/10/2005)
105 NOTICE OF UNAVAILABILITY OF COUNSEL, by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Jennifer Schockemoehl, Lawrence Menard, Jeffrey Crow Bolt, Matthew Dodt, Rebecca Sonchek, Terrence Enright, Arthur Martinez, Henry Norr, Steven Sakala, Susan Quinlan, Allen Chapman, Tim Ridolfi, Alicia Grogan−Brown, Kenneth Hayes, Dean Royer, Bernadine Mellis, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Jesse Christensen, Diana Bohn, Miles Montabano, Christopher Clay, Nicholas Frabasilio, Cyprus Gonzalez, Kristin Meeker, Eric Shaw, Violeta Foregger, Chelsea Smith, Aidan Kotler, Silas Dunn, Lesley Krueger, Marko Sakmann, Judith Mirkinson, Vaahdat Saadat, Clay Hinson, Marc De Giere, David Martinez, Laura Ariel Glenn, Sarah Kennedy, Willie

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 48 of 68

06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005 06/10/2005

Hamlin, Cliff Close, Kate Sassoon, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr (Chanin, James) (Filed on 6/10/2005) Modified on 6/13/2005 (db, COURT STAFF). (Entered: 06/10/2005)
106 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF ARIEL GLENN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
107 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF CYPRUS GONZALEZ ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
108 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF WILLIE HAMLIN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
109 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF KENNETH HAYES ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
110 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF AIDAN KOTLER ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
111 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF LESLEY KRUEGER ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
112 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF DAVID MARTINEZ ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
113 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF BERNADINE MELLIS ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
114 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF JUDITH MIRKINSON ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
115 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF HENRY NORR ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
116 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF SUSAN QUINLAN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
117 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF DEAN ROYER ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
118 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF VAHDAAT SAADAT ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
119 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF STEVEN SAKALA ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
120 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF MARKO SAKMANN ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
121 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF KATE SASSOON ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 49 of 68

06/10/2005 06/10/2005 06/10/2005 06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/15/2005
06/20/2005 06/20/2005
06/21/2005

122 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF JENNIFER SCHOKEMOEHL ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
123 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF REBECCA SONCHEK ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
124 STIPULATION AND [PROPOSED ORDER] DISMISSING ACTION OF PLAINTIFF CHELSEA SMITH ONLY WITH PREJUDICE by City Of Oakland. (Fox, Gregory) (Filed on 6/10/2005) (Entered: 06/10/2005)
125 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Mark Degiere only. Signed by Judge Thelton E. Henderson on 6/10/05. (rbe, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/13/2005)
126 STIPULATION AND ORDER dismissing action of plaintiff Thomas Becker only with prejudice. Signed by Judge Thelton E. Henderson on 6/10/05. (rbe, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/13/2005)
127 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Kristin Meeker only. Signed by Judge Thelton E. Henderson on 6/10/05. (rbe, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/13/2005)
128 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Patricia "Max" Rorty only. Signed by Judge Thelton E. Henderson on 6/10/05. (rbe, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/13/2005)
129 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Eric Shaw only. Signed by Judge Thelton E. Henderson on 6/10/05. (rbe, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/13/2005)
130 STIPULATION AND ORDER dismissing action of Cyprus Gonzalez and the following other plaintiffs with prejudice. Signed by Judge Thelton E. Henderson on 6/14/05. (Attachments: # 1 Judith Mirkinson# 2 Henry Norr# 3 Susan Quinlan# 4 Dean Royer# 5 Vahdaat Saadat# 6 Steven Sakala# 7 Marko Sakmann# 8 Kate Sassoon# 9 Jennifer Schokemoehl# 10 Rebecca Sonchek# 11 Chelsea Smith# 12 Alicia Grogan Brown# 13 Jesse Christensen# 14 Nicholas Frabasilio# 15 Violeta Forreger# 16 Terrence Enright# 17 Matthew Dodt# 18 Aidan Kotler# 19 Ariel Glenn# 20 Lesley Krueger# 21 Kenneth Hayes# 22 Willie Hamlin# 23 Bernadine Mellis# 24 David Martinez)(rbe, COURT STAFF) (Filed on 6/15/2005) (Entered: 06/15/2005)
131 Memorandum in Opposition to Defendants' Motion to Certify Order for Interlocutory Appeal filed bySri Louise Coles. (Haddad, Michael) (Filed on 6/20/2005) (Entered: 06/20/2005)
132 Memorandum in Opposition to Def City of Oakland's Motion for Request for Certification of Order for Appeal filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit Declaration and Exhibits in Support)(Lederman, Rachel) (Filed on 6/20/2005) (Entered: 06/20/2005)
133 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Jessica Lawrence (Chanin, James)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 50 of 68

06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005

(Filed on 6/21/2005) (Entered: 06/21/2005)
134 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Sarah Kennedy (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
135 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Tim Ridolfi (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
136 NOTICE by John Nishinaga, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Jeffrey Crow Bolt (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
137 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Miles Montabano (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
138 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Miles Montabano's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
139 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Jessica Lawrence's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
140 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard,

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 51 of 68

06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005

Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Jeffrey Crow Bolt's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
141 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Tim Ridolfi's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
142 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Sarah Kennedy's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
143 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Clay Hinson (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
144 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Defendant City of Oakland's Offer of Judgment and Offer to Compromise to Plaintiff Arthur Martinez (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
145 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Clay Hinson's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
146 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn,

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 52 of 68

06/21/2005
06/27/2005 06/30/2005 07/11/2005 07/13/2005 07/13/2005 07/13/2005

Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr Plaintiff Arthur Martinez's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
147 NOTICE of Acceptance with Offer of Judgment by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr CORRECTION OF DOCUMENT #146 Plaintiff Arthur Martinez's Notice of Acceptance of Defendant City of Oakland's Offer of Judgment and Offer to Compromise (F.R.C.P, 68) (Chanin, James) (Filed on 6/21/2005) (Entered: 06/21/2005)
148 Reply Memorandum in Support of Defendant CIty of Oakland's Points and Authorities Reply Brief in Support of Motion for Request for Certification of ORder for Appeal Pursuant to 28 USC 1292(b) filed byCity Of Oakland, Richard Word. (Attachments: # 1 Affidavit Declaration of Arlene Helfrich in Support of Reply Brief in Support of Motion for Request For Certification of ORder for Appeal Pursuant to 28 USC 1292(b)# 2 Exhibit Exhibit 1 to Declaration of Arlene Helfrich)(Fox, Gregory) (Filed on 6/27/2005) (Entered: 06/27/2005)
149 Defendants City of Oakland, Police Chief Richard Word and All Officer Defendants' ANSWER to Amended Complaint (Third Amended Complaint) byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 6/30/2005) (Entered: 06/30/2005)
150 Minute Entry: Motion Hearing held on 7/11/2005 before Judge Thelton E. Henderson. The motion for request for certification is taken under submission. (Court Reporter: Sahar McVickar) (rbe, COURT STAFF) (Date Filed: 7/11/2005) (Entered: 07/11/2005)
151 STIPULATION re 147 Notice of Acceptance with Offer of Judgment,, Stipulation and (Proposed) Order Dismissing Individual Officer Defendants with Prejudice as to Plaintiff Arthur Martinez Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
152 STIPULATION re 146 Notice of Acceptance with Offer of Judgment,, Stipulation and (Proposed)Order Dismissing Individual Officer Defendants with Prejudice As To Plaintiff Clay Hinson Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
153 STIPULATION of Dismissal Stipulation and [Proposed] Order Dismissing Individual Officer Defendants with Prejudice as to Plaintiff Jessica Lawrence Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, P. Huppert, J. Scott, J.

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 53 of 68

07/13/2005
07/13/2005
07/13/2005
07/13/2005
07/15/2005 07/21/2005 07/21/2005 07/22/2005

Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
154 STIPULATION of Dismissal Stipulation and [Proposed] Order Dismissing Individual Officer Defendants with Prejudice as to Plaintiff Timothy Ridolfi Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
155 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As To Plaintiff Sarah Kennedy Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
156 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As To Plaintiff Jeffrey Crow Bolt Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
157 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As To Plaintiff Miles Montalbano Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/13/2005) (Entered: 07/13/2005)
158 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to the following plaintiffs only: Arthur Martinez, Clay Hinson, Jessica Lawrence, Timothy Ridolfi, Sarah Kennedy, Jeffrey Crow Bolt and Miles Montalbano. Signed by Judge Thelton E. Henderson on 7/15/05. (Attachments: # 1 Clay Hinson# 2 Jessica Lawrence# 3 Timothy Ridolfi# 4 Sarah Kennedy# 5 Jeffrey Crow Bolt# 6 Miles Montalbano)(rbe, COURT STAFF) (Filed on 7/15/2005) (Entered: 07/15/2005)
159 NOTICE of Acceptance with Offer of Judgment by Silas Dunn (Burris, John) (Filed on 7/21/2005) (Entered: 07/21/2005)
160 NOTICE of Acceptance with Offer of Judgment by David Loville (Burris, John) (Filed on 7/21/2005) (Entered: 07/21/2005)
161 NOTICE by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr of Additional Authority (Attachments: # 1 Exhibit 1)(Chanin, James) (Filed on 7/22/2005) (Entered: 07/22/2005)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 54 of 68

07/22/2005 07/22/2005 07/25/2005 07/29/2005
07/29/2005 07/29/2005 07/29/2005

162 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As to Plaintiff David Loville Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/22/2005) (Entered: 07/22/2005)
163 STIPULATION of Dismissal Stipulation and (Proposed) Order Dismissing Individual Officer Defendants With Prejudice As to Plaintiff Defendant Silas Dunn Only by Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 7/22/2005) (Entered: 07/22/2005)
164 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiffs David Loville and Silas Dunn only. Signed by Judge Thelton E. Henderson on 7/25/05. (Attachments: # 1 David Loville# 2 Silas Dunn)(rbe, COURT STAFF) (Filed on 7/25/2005) Additional attachment(s) added on 7/25/2005 (rbe, COURT STAFF). (Entered: 07/25/2005)
165 MEMORANDUM in Oppostion re 75 Exhibits,,,,,, 76 Exhibits,,,,,, 77 Exhibits,,,,, 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES, 66 Exhibits,,,,,,,, 67 Exhibits,,,,, 78 Exhibits,,,,, 79 Exhibits,,,,, 80 Exhibits,,,,, 68 Exhibits,,,,,, 69 Exhibits,,,,, 70 Exhibits,,,,, 81 Exhibits,,,,, 82 Exhibits,,,,, 83 Exhibits,,,,,, 84 Exhibits,,,,, 71 Exhibits,,,,, 72 Exhibits,,,,,, 73 Exhibits,,,,,, 74 Exhibits,,,,, Defendant City of Oakland's Opposition to Local 10's Attorneys' Motion for Fees and Costs filed byCity Of Oakland, Richard Word, Patrick Haw, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 75 , 76 , 77 , 65 , 66 , 67 , 78 , 79 , 80 , 68 , 69 , 70 , 81 , 82 , 83 , 84 , 71 , 72 , 73 , 74 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
166 Request for Judicial Notice Defendant City of Oakland's Request to Take Judicial Notice filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Supplement Oakland Municipal Ordinances)(Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
167 Declaration of Index of Declarations and Exhibits in Support of 165 Memorandum in Opposition,,,,, Index of Declarations and Exhibits and Evidence in Opposition to Plaintiffs' Motion for Award of Attorneys' Fees and Costs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
168 *** FILED IN ERROR. PLEASE SEE DOCKET # 172 . *** Declaration of Mara Elizabeth Rosales in Support of 165 Memorandum in

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 55 of 68

07/29/2005
07/29/2005 07/29/2005 07/29/2005 08/03/2005 08/10/2005

Opposition,,,,, Declaration of Mara Elizabeth Rosales in Support of City of Oakland's Opposition to Local 10's Attorney Fee Motion filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit Exhibits A, B and C to Declaration of Arlene Helfrich)(Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) Modified on 8/1/2005 (ewn, COURT STAFF). (Entered: 07/29/2005)
169 Declaration of Gregory M. Fox in Support of 165 Memorandum in Opposition,,,,, Declaration of Gregory M. Fox in Support of City of Oakland's Opposition to Local 10's Attorney Fee Motion filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit Exhibit A to Fox Dec# 2 Exhibit Exhibit B to Fox Dec.# 3 Exhibit Exhibit C to Fox Dec# 4 Exhibit Exhibit D to Fox Dec# 5 Exhibit Exhibit E to Fox Dec# 6 Exhibit Exhibit F to Fox Dec.)(Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
170 Declaration of Arlene Helfrich in Support of 165 Memorandum in Opposition,,,,, Declaration of Arlene Helfrich in Support of City of Oakland's Opposition to Attorney Fee Motion filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit A, B, C Exhibits to Helfrich Dec)(Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
171 Declaration of Matthew Waughtel in Support of 165 Memorandum in Opposition,,,,, Declaration of Matthew Waughtel in Support of City of Oakland's Opposition to Attorney Fee Motion filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit A to Waughtel Dec# 2 Exhibit B to Waughtel Dec)(Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
172 Declaration in Support of 165 Memorandum in Opposition,,,,, Declaration of Mara Elizabeth Rosales in Support of City of Oakland's Opposition to Local 10's Attorney Fee Motion filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 165 ) (Fox, Gregory) (Filed on 7/29/2005) (Entered: 07/29/2005)
173 ORDER denying 63 Motion for certification for interlocutory appeal. Signed by Judge Thelton E. Henderson on 08/03/05. (tehlc3, COURT STAFF) (Filed on 8/3/2005) (Entered: 08/03/2005)
174 Proposed Order Stipulated Protective Order by Sri Louise Coles. (Haddad, Michael) (Filed on 8/10/2005) (Entered: 08/10/2005)

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08/11/2005 08/15/2005 08/24/2005
08/25/2005 08/29/2005
08/29/2005
08/29/2005
08/29/2005

175 Proposed Order re 174 Proposed Order Corrected Stipulated Protective Order by Sri Louise Coles. (Haddad, Michael) (Filed on 8/11/2005) (Entered: 08/11/2005)
176 Corrected stipulation and PROTECTIVE ORDER. Signed by Judge Thelton E. Henderson on 8/11/05. (rbe, COURT STAFF) (Filed on 8/15/2005) (Entered: 08/15/2005)
177 RECEIVED PROPOSED STIPULATION AND ORDER GRANTING LOCAL 10 PLAINTIFFS LEAVE TO FILE A REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR ATTORNEYS' FEES AND COSTS IN EXCESS OF 15 PAGES by John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Chanin, James) (Filed on 8/24/2005) Modified on 8/25/2005 (db, COURT STAFF). (Entered: 08/24/2005)
178 STIPULATION AND ORDER granting leave to file a Reply Memorandum in excess of 15 pages but not to exceed 20 pages. Signed by Judge Thelton E. Henderson on 8/25/05. (rbe, COURT STAFF) (Filed on 8/25/2005) (Entered: 08/25/2005)
179 Reply Memorandum re 65 MOTION for Attorney Fees LOCAL 10 PLAINTIFFS' NOTICE OF AND MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES in Support of Plaintiffs' Motion for Attorney's Fees and Costs filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
180 *** FILED IN ERROR. PLEASE SEE DOCKET # 189 . *** Appendix re 179 Reply Memorandum,,, Index to Declarations filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) Modified on 8/30/2005 (ewn, COURT STAFF). (Entered: 08/29/2005)
181 Declaration of John Burris in Support of 179 Reply Memorandum,,, filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
182 Declaration of James Chanin in Support of 179 Reply Memorandum,,, and Exhibits 1−8 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)

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08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/30/2005

183 EXHIBITS re 182 Declaration in Support,,, #9−16 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 10# 2 Exhibit 11# 3 Exhibit 12# 4 Exhibit 13# 5 Exhibit 14# 6 Exhibit 15# 7 Exhibit 16)(Related document(s) 182 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
184 Declaration in Support of 179 Reply Memorandum,,, and Exhibit 1 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1)(Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
185 Declaration of Rachel Lederman in Support of 179 Reply Memorandum,,, and Exhibit 1 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1)(Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
186 Declaration of Rob Remar in Support of 179 Reply Memorandum,,, filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
187 Declaration of Alan Schlosser in Support of 179 Reply Memorandum,,, and Exhibits 1−4 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
188 Declaration of Bobbie Stein in Support of 179 Reply Memorandum,,, and Exhibit 1 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1)(Related document(s) 179 ) (Chanin, James) (Filed on 8/29/2005) (Entered: 08/29/2005)
189 EXHIBITS re 179 Reply Memorandum,,, Correction of Docket # 180 filed byJohn Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union,

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09/08/2005
09/27/2005 10/04/2005 10/06/2005 10/14/2005 10/18/2005 10/21/2005 10/24/2005
10/24/2005
10/24/2005

Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey, Byron Moore, Sr. (Related document(s) 179 ) (Chanin, James) (Filed on 8/30/2005) (Entered: 08/30/2005)
190 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Notice of Additional Authority in Opposition to Coles' and Local 10's Motions for Fees and Costs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit Exh. A to Notice of Additional Authority# 2 Exhibit B to Notice of Additional Authority)(Fox, Gregory) (Filed on 9/8/2005) (Entered: 09/08/2005)
191 ORDER by Judge Thelton E. Henderson granting in part and denying in part 65 Motion for Attorneys' Fees. (tehlc3, COURT STAFF) (Filed on 9/27/2005) (Entered: 09/27/2005)
192 Letter from Plaintiffs' Counsel. (Attachments: # 1 Exhibit Chief Tucker's letter)(Lederman, Rachel) (Filed on 10/4/2005) (Entered: 10/04/2005)
193 ORDER re 192 Letter requesting case management conference. Signed by Judge Thelton E. Henderson on 10/06/05. (tehlc3, COURT STAFF) (Filed on 10/6/2005) (Entered: 10/06/2005)
194 Proposed Order re 27 Case Management Scheduling Order, (with signed stipulation) by Sri Louise Coles. (Haddad, Michael) (Filed on 10/14/2005) (Entered: 10/14/2005)
195 STIPULATION AND ORDER re: pretrial preparation dates. Signed by Judge Thelton E. Henderson on 10/18/05. (rbe, COURT STAFF) (Filed on 10/18/2005) (Entered: 10/18/2005)
196 Letter from Chief Wayne Tucker, OPD to Judge Henderson. (Fox, Gregory) (Filed on 10/21/2005) (Entered: 10/21/2005)
197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union filed by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. Motion Hearing set for 11/28/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
198 Declaration of Alexander Jason in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union and Exhibits A and B filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit A# 2 Exhibit B page 1# 3 Exhibit B page 2# 4 Exhibit B page 3# 5 Exhibit B page 4)(Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
199 Declaration in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union of Chief Jordan filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R.

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10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005

Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
200 Declaration in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union Dec of Sgt. (ret) J. Kurzrock filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
201 Declaration of Elida Peredes in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
202 Declaration of Lieutenant Ed Tracey in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
203 Declaration of Captain Rod Yee in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
204 Declaration of Gregory M. Fox (Exhibits A−H to follow) in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
205 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, Ex A to Dec of Gregory Fox filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza,

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10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005

J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
206 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, Exhibit B to Fox Declaration in Support filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
207 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, Exhibit C to Fox Dec re MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
208 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, Exhibit D to Fox Dec in Support of MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
209 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, Exhibit E to Fox Dec in Support of MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
210 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, EXHIBIT F TO FOX DEC IN SUPPORT OF MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
211 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, EXHIBIT G TO FOX DEC IN SUPPORT OF MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott,

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10/24/2005 10/27/2005 10/31/2005 10/31/2005 10/31/2005

J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
212 EXHIBITS re 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union, 204 Declaration in Support,, EXHIBIT H TO FOX DEC IN SUPPORT OF MSJ filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 197 , 204 ) (Fox, Gregory) (Filed on 10/24/2005) (Entered: 10/24/2005)
213 Declaration in Support of 197 MOTION for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union + Exhibit 1 to Arlene Helfrich Declaration, EXHIBITS filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1)(Related document(s) 197 ) (Fox, Gregory) (Filed on 10/27/2005) (Entered: 10/27/2005)
214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. Motion Hearing set for 12/5/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
215 Declaration of Gregory M. Fox in Support of 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs, EXHIBITS A−F, Exhibits G−K to follow filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit A 28 pages# 2 Exhibit Exhibit B 20 pages# 3 Exhibit C − 21 pages# 4 Exhibit D − 25 pages# 5 Exhibit E − 15 pages# 6 Exhibit F − 14 pages)(Related document(s) 214 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
216 EXHIBITS re 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs, 215 Declaration in Support,,,, Exhibits,,, G−K to Declaration of Gregory M. Fox in Support of Defendants' Motion for Summary Judgment or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit H − to Fox Declaration 13 pages# 2 Exhibit I to Fox Declaration 1 page# 3 Exhibit J to Fox Dec 32 pages# 4 Exhibit K to Fox Dec 6 pages)(Related document(s) 214 , 215 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)

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217 Declaration of Alexander Jason in Support of 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs, EXHIBITS L and M filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit L to Jason Dec 1 page photo# 2 Exhibit M page one to Jason Dec# 3 Exhibit M−page 2 to Jason Dec# 4 Exhibit M − page 3# 5 Exhibit M − page 4 to Jason Dec)(Related document(s) 214 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
218 Declaration of Sgt. (Ret.) Julia Kurzrock in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
219 Declaration of Deputy Chief Howard Jordan in Support of Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
220 Declaration of David Kozicki in Support of Defendants' Motion for Summary Judgment or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit N − 10 pages)(Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
221 Declaration of Gary Tolleson in Support of 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs and Exhibits O, P and Q filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Attachments: # 1 Exhibit O − 3 pages# 2 Exhibit P − 35 pages# 3 Exhibit Q − 37 pages)(Related document(s) 214 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
222 Declaration of Lt. Edward Tracey in Support of 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 214 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)

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223 Declaration of Rod Yee in Support of 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Related document(s) 214 ) (Fox, Gregory) (Filed on 10/31/2005) (Entered: 10/31/2005)
224 FURTHER SETTLEMENT CONFERENCE ORDER RE: ATTORNEYS' FEES. Signed by Judge James Larson on 11/1/05. (jlsec, COURT STAFF) (Filed on 11/1/2005) (Entered: 11/01/2005)
227 [DUPLICATE DOCKET ENTRY..Pls. Refer to Document #222]...DECLARATION of Lt. Edward Tracey in Support of MOTION for Summary Judgment or, in the Alternative, for Summary Adjudication re 214]. Filed by Defendants City Of Oakland, Richard Word, et al.. (Related document(s) 214 ).(tn, COURT STAFF) (Filed on 11/4/2005) (Entered: 11/08/2005)
228 [DUPLICATE DOCKET ENTRY..Pls. Refer to Document #223]....DECLARATION of Rod Yee in Support of MOTION for Summary Judgment or, in the Alternative, for Summary Adjudication re 214 . Filed by Defendants City Of Oakland, Richard Word, et al.. (Related document(s) 214 ). (tn, COURT STAFF) (Filed on 11/4/2005) (Entered: 11/08/2005)
229 DECLARATION of Dave Kozicki in Support of MOTION for Summary Judgment or, in the Alternative, for Summary Adjudication re 214 . Filed by Defendants City Of Oakland, Richard Word, et al.. (Related document(s) 214 ). (tn, COURT STAFF) (Filed on 11/4/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
230 MEMORANDUM of Points &Authorities in OPPOSITION to Defendants' MOTION for Summary Judgment or, in the Alternative, for Summary Adjudication re 214 . Filed by Plaintiffs John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey &Byron Moore, Sr. (Related document(s) 214 ) (tn, COURT STAFF) (Filed on 11/7/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
231 DECLARATION of June Brashares in Support of Memorandum of Points &Authorities in Opposition to Defendants' MOTION for Summary Judgment, or in the alternative, for Summary Adjudication re 230 . Filed by Plaintiffs John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey &Byron Moore, Sr. (Related document(s) 230 ) (tn, COURT STAFF) (Filed on 11/7/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
232 DECLARATION of Henry Graham in Support of Memorandum of Points &Authorities in Opposition to Defendants' Motion for Summary Judgment, or in the alternative, for Summary Adjudication re 230 . Filed by Plaintiffs John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey &Byron Moore, Sr. (Related document(s) 230 ) (tn, COURT STAFF) (Filed on 11/7/2005) Additional

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attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
233 DECLARATION of Robert Remar in Support of Memorandum of Points &Authorities in Opposition to Defendants' Motion for Summary Judgment, or in the alternative, for Summary Adjudication re 230 . Filed by Plaintiffs John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey &Byron Moore, Sr. (Related document(s) 230 ) (tn, COURT STAFF) (Filed on 11/7/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
234 CERTIFICATE OF SERVICE Filed by Plaintiffs John Nishinaga, Willow Rosenthal, Jessica Lawrence, Scott Fleming, Billy Kepoo, Lawrence Menard, Jeffrey Crow Bolt, Arthur Martinez, Allen Chapman, Tim Ridolfi, Thomas Becker, Local 10, International Longshore and Warehouse Union, Patricia "Max" Rorty, Diana Bohn, Miles Montabano, Christopher Clay, Kristin Meeker, Eric Shaw, Silas Dunn, Clay Hinson, Marc De Giere, Sarah Kennedy, Cliff Close, Jack Heyman, Ernest Evans, David Loville, Lawrence Massey &Byron Moore, Sr. re: 233 Declaration, re: 230 Memorandum of Points &Authorities in Opposition, re: 231 Declaration &re: 232 Declaration. (tn, COURT STAFF) (Filed on 11/7/2005) Additional attachment(s) added on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
225 [DUPLICATE DOCKET ENTRY..Pls. Refer to Document #234]...PROOF OF SERVICE re Memorandum of Points &Authorities in Opposition to Defendants' Motion for Summary Judgment, or in the alternative, for Summary Adjudication; Declaration of Robert Remar; Declaration of Henry Graham &Proof of Servicce. Filed byLocal 10, International Longshore and Warehouse Union. (Remar, Robert) (Filed on 11/8/2005) Modified on 11/8/2005 (tn, COURT STAFF). (Entered: 11/08/2005)
226 MOTION for Leave to File Motion for Reconsideration And/Or Clarification Re: Order on Plaintiffs' Motion for Attorney Fees As To The Waiver Issue, Pursuant to Civil L.R. 7−9 filed by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. Motion Hearing set for 12/19/2005 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (Fox, Gregory) (Filed on 11/8/2005) (Entered: 11/08/2005)
237 [CONFIDENTIAL][SEALED]... CASE MANAGEMENT/SETTLEMENT CONFERENCE STATEMENT Filed by Defendants City Of Oakland, Richard Word, et al.. (tn, COURT STAFF) (Filed on 11/9/2005) Modified on 11/14/2005 (tn, COURT STAFF). (Entered: 11/10/2005)
235 Letter from Julie M. Houk to Judge Henderson re Defendants' Noticed Motion for Leave to File a Motion for Reconsideration. (Chanin, James) (Filed on 11/10/2005) (Entered: 11/10/2005)
236 ORDER by Judge Thelton E. Henderson re: 226 Motion for leave to file motion for reconsideration. (tehlc3, COURT STAFF) (Filed on 11/10/2005) (Entered: 11/10/2005)
238 Memorandum in Opposition IN PART AND NON−OPPOSITION IN PART TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed byBilly Kepoo, Allen Chapman, Christopher Clay, Ernest Evans, Lawrence Massey, Byron Moore, Sr. (Burris, John) (Filed on 11/12/2005) (Entered: 11/12/2005)

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239 DECLARATION of JOHN L. BURRIS IN SUPPORT OF PLAINTIFFS' OPPOSITION IN PART AND NON−OPPOSITION IN PART TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed byBilly Kepoo, Allen Chapman, Christopher Clay, Ernest Evans, Lawrence Massey, Byron Moore, Sr. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9 MANUAL FILING NOTIFICATION)(Burris, John) (Filed on 11/12/2005) (Entered: 11/12/2005)
240 Memorandum in Opposition re 214 MOTION for Summary Judgment Or, In the Alternative, Summary Adjudication Against Individual Plaintiffs filed byJack Heyman. (Attachments: # 1 Affidavit Lederman declaration, &Exh. 1−2# 2 Exhibit Exhibit 3)(Lederman, Rachel) (Filed on 11/14/2005) (Entered: 11/14/2005)
241 Reply to Opposition Defendant City of Oakland's Reply in Support of Motion and Motion for Summary Judgment Against Local 10, International Longshore and Warehouse Union (Nov28,05 10am Ctrm 12, 19th Fl.) filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 11/14/2005) (Entered: 11/14/2005)
242 OBJECTIONS to re 241 Reply to Opposition,, Defendant City of Oakland's Objections to Evidence Offered by Plaintiff Local 10 in Opposition to Defendants' Motion for Summary Judgment Against Plaintiff Local 10, International Longshore and Warehouse Union by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 11/14/2005) (Entered: 11/14/2005)
243 ORDER by Judge Thelton E. Henderson granting in part and denying in part 197 Motion for Summary Judgment against Plaintiff Local 10, International Longshore and Warehouse Union. (tehlc3, COURT STAFF) (Filed on 11/18/2005) (Entered: 11/18/2005)
244 Reply Memorandum Defendant City of Oakland's Reply in Support of Motion and Motion for Summary Judgment Against Individual Plaintiffs (Hearing Dec. 5, 2005, Courtroom 12, 19th Floor) filed byCity Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 11/21/2005) (Entered: 11/21/2005)
245 CLERK'S NOTICE: Continuing Motion Hearing to 12/12/2005 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. (rbe, COURT STAFF) (Filed on 11/23/2005) (Entered: 11/23/2005)
246 ORDER by Judge Thelton E. Henderson granting in part and denying in part 214 Motion for Summary Judgment against individual plaintiffs. Defendants' motion remains under submission on limited issues on which the Court will hear oral argument on 12/12/05. (tehlc3, COURT STAFF) (Filed on 12/6/2005) (Entered: 12/06/2005)
247 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING ACTION OF PLAINTIFF WILLOW ROSENTHAL ONLY WITH PREJUDICE by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza,

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J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/8/2005) (Entered: 12/08/2005)
248 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF Scott Fleming ONLY by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/8/2005) (Entered: 12/08/2005)
249 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING INDIVIDUAL OFFICER DEFENDANTS WITH PREJUDICE AS TO PLAINTIFF Lawrence Menard ONLY by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)
250 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING ACTION OF PLAINTIFF John Nishinaga ONLY WITH PREJUDICE by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)
251 STIPULATION of Dismissal STIPULATION AND (PROPOSED) ORDER DISMISSING ACTION OF PLAINTIFF Cliff Close ONLY WITH PREJUDICE by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)
252 STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO COMPLY WITH COURT'S ORDER DATED DECEMBER 6, 2005 RE: FILING OF STIPULATION FOR DISMISSAL OF CERTAIN INDIVIDUAL DEFENDANTS by City Of Oakland, Richard Word, Patrick Haw, Rod Yee, E. Poulson, Howard A. Jordan, Dave Kozicki, T. Hogenmiller, E. Tracey, R. Gutierez, A. Oerleamns, R. Holmgren, P. Gonzales, S. Knight, M. Randall, Chan R. Orozco, G Bellusa, P. Huppert, J. Scott, J. Kurzrock, M. Mack, J. Kelly, Souza, J. Muschi, S. Johnson, Karsaboom, G. Tolleson, D. Campell, R. Moore, A. Steinberger, F. UU, B. Worden, J. Fukada, J. Doolittle, C. Saunders, E. Romans, C. Delrosario. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)
253 STIPULATION AND ORDER dismissing action of plaintiff Willow Rosenthal only with prejudice. Signed by Judge Thelton E. Henderson on 12/9/05. (rbe, COURT STAFF) (Filed on 12/9/2005) (Entered: 12/09/2005)
254 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Scott Fleming only. Signed by Judge Thelton E. Henderson on 12/09/05. (rbe, COURT STAFF) (Filed on 12/9/2005) (Entered: 12/09/2005)
255 Letter from Gregory M. Fox (authorized by Messrs. Burris, Chanin, Haddad, and Remar) re: Scheduling. (Fox, Gregory) (Filed on 12/9/2005) (Entered: 12/09/2005)

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 67 of 68

12/12/2005
12/12/2005 12/12/2005 12/12/2005 12/21/2005 12/22/2005
01/09/2006 01/24/2006 01/26/2006 02/17/2006 03/28/2006 03/28/2006 07/27/2006 07/27/2006 07/27/2006

256 Minute Entry: Hearing on Dfts' Motion for Summary Judgment or in the alternative, Summary Adjudication held on 12/12/2005 before Judge Thelton E. Henderson. The motion is taken under submission. Jury Trial set for 1/24/2006 08:30 AM in Courtroom 12, 19th Floor, San Francisco. Pretrial Conference set for 1/12/2006 03:00 PM in Courtroom 12, 19th Floor, San Francisco. (Court Reporter: Jim Yeomans) (rbe, COURT STAFF) (Date Filed: 12/12/2005) (Entered: 12/12/2005)
257 STIPULATION AND ORDER extending time to comply with the 12/06/05 Court order. Signed by Judge Thelton E. Henderson on 12/12/05. (rbe, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
258 STIPULATION AND ORDER dismissing action of plaintiffs John Nishinaga and Cliff Close only with prejudice. Cliff Close and John Nishinaga terminated. Signed by Judge Thelton E. Henderson on 12/12/05. (Attachments: # 1 John Nishinaga)(rbe, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
259 STIPULATION AND ORDER dismissing individual officer defendants with prejudice as to plaintiff Lawrence Menard only. Signed by Judge Thelton E. Henderson on 12/12/05. (rbe, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
260 [FILED UNDER SEAL]...LETTER to Judge Henderson re Confidential Notice of Case/Claims Status, Request of parties. (tn, COURT STAFF) (Filed on 12/21/2005) (Entered: 12/22/2005)
261 [FILED UNDER SEAL]...ORDER Signed by Judge Thelton E. Henderson Vacating Trial &Pretrial Dates &Granting Parties' Request for a Case Management Conference: Joint Case Management Statement due 1/9/2006 &Case Management Conference set for 1/17/2006 at 1:30 P.M. (tn, COURT STAFF) (Filed on 12/22/2005) (Entered: 12/22/2005)
262 Minute Entry: Status Conference held. Further Status Conference set for 1/31/2006 at 01:30 PM in Courtroom 12, 19th Floor, San Francisco. (not reported) (rbe, COURT STAFF) (Date Filed: 1/9/2006) (Entered: 01/09/2006)
263 NOTICE by City Of Oakland of Letter Lodge Under Seal with Judge Henderson Re: Confidential Notice of Case/Claims Status, Request of Parties Re: Status Conference Scheduled for January 31, 2006 (Fox, Gregory) (Filed on 1/24/2006) (Entered: 01/24/2006)
264 CLERK'S NOTICE: Status Conference continued to 4/3/2006 at 01:30 PM. (rbe, COURT STAFF) (Filed on 1/26/2006) (Entered: 01/26/2006)
265 Minute Entry: The settlement conference was held on 2/17/06. The case settled. (Date Filed: 2/17/2006). (Court Reporter n/a.) (jlsec, COURT STAFF) (Date Filed: 2/17/2006) (Entered: 02/21/2006)
266 Letter from Attorney for Local 10 Plaintiffs. (Chanin, James) (Filed on 3/28/2006) (Entered: 03/28/2006)
267 ORDER continuing the Status Conference to 6/5/2006 at 01:30 PM in Courtroom 12, 19th Floor, San Francisco per the parties' request. Signed by Judge Thelton E. Henderson on 3/28/06. (rbe, COURT STAFF) (Filed on 3/28/2006) (Entered: 03/28/2006)
268 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Local 10, ILWU Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
269 STIPULATION of Dismissal and (Proposed) Order Dismissing the Entire Action on Behalf of All Named Plaintiffs and Their Counsel of Record by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
270 *** FILED IN WRONG CASE. NO NEW DOCUMENT. *** STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Jennifer Hansen Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) Modified on 7/27/2006 (ewn, COURT STAFF).

Case: 3:03-cv-02962-TEH As of: 10/27/2009 01:34 PM PDT 68 of 68

07/27/2006
07/27/2006 07/27/2006 07/27/2006 07/27/2006 07/28/2006 07/28/2006 07/28/2006 07/31/2006

(Entered: 07/27/2006)
271 *** FILED IN WRONG CASE. NO NEW DOCUMENT. *** STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Ron Smith Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) Modified on 7/27/2006 (ewn, COURT STAFF). (Entered: 07/27/2006)
272 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Byron Moore, Sr. Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
273 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Lawrence Massey Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
274 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Billy Kepo'o Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
275 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Ernest Evans Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/27/2006) (Entered: 07/27/2006)
276 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Christopher Clay Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/28/2006) (Entered: 07/28/2006)
277 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Allen Chapman Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/28/2006) (Entered: 07/28/2006)
278 STIPULATION of Dismissal and (Proposed) Order Dismissing Action of Plaintiff Jack Heyman Only With Prejudice by City Of Oakland, Richard Word. (Fox, Gregory) (Filed on 7/28/2006) (Entered: 07/28/2006)
279 STIPULATION AND ORDER dismissing the entire action on behalf of all named plaintiffs with prejudice. Jeffrey Crow Bolt; Allen Chapman; Christopher Clay; Marc De Giere; Silas Dunn; Ernest Evans; Scott Fleming; Jack Heyman; Clay Hinson; Sarah Kennedy; Billy Kepoo; Jessica Lawrence; Local 10, International Longshore and Warehouse Union; David Loville; Arthur Martinez; Lawrence Massey; Kristin Meeker; Lawrence Menard; Miles Montabano; Byron Moore, Sr; Tim Ridolfi; Patricia "Max" Rorty; Eric Shaw; Thomas Becker and Diana Bohn terminated. Signed by Judge Thelton E. Henderson on 07/27/06. (rbe, COURT STAFF) (Filed on 7/31/2006) Additional attachment(s) added on 7/31/2006 (rbe, COURT STAFF). Additional attachment(s) added on 8/2/2006 (rbe, COURT STAFF). (Entered: 07/31/2006)

 
 There has never been a more urgent need to preserve fundamental privacy protections and our system of checks and balances than the need we face today, as illegal government spying and governmentsponsored torture programs transcend the bounds of law in the name of national security. Learn more about ACLU's National Security Project (NSP), which advocates for national security policies that are consistent with the Constitution, the rule of law, and fundamental human rights.

Home : Safe and Free : General
Victims of Police Attack During Anti-War Protest at Oakland Port Speak Out (6/26/2003)
Statement of Eric Shaw
FOR IMMEDIATE RELEASE
OAKLAND, CA - I'm a Gulf War veteran and a Marine who understands the duty of patriotic service to protect the ideas upon which this country was founded. I take that patriotic duty very seriously because I understand the sacrifice that Americans have made to make this country a better nation. I understand the sacrifice of the Marines before me that fought at Bellow Woods, Iwojima, and the beaches of Normandy. I also understand the sacrifice made by Americans expressing their demands for responsible government. Americans like Martin Luther King Jr. and Caesar Chavez gave their lives to make this country a better place for all of us. At the docks in Oakland on April 7th, by engaging in a non-violent community picket of war profiteers, we picked up the patriotic struggle to demand responsible government.
What happened that morning was an unjustifiable and shocking display of power. I was with a group of about 100 people that were standing at a distance providing moral support for a group of people who were walking and singing in a picket line in front of one of the entrances to SSA. That was when a group of 30 police officers on motorcycles charged us causing us to turn and flee. Some of us walked while others ran out of fear. A large line of officers in riot gear and face shields were marching behind the motor cycles with shot guns aimed directly at us. As I turned to walk away I heard loud explosions all around me and I felt something violent impact against my lower leg that knocked me to the ground. I couldn't understand why I was being shot at.
Since April 7th, I have had trouble sleeping at night. I had an enormous and painful bruise for many weeks. During the Gulf War, I felt my job was to defend our basic human rights and our nation. I certainly never imagined that I would be attacked by American police officers while expressing my right to free speech - the very rights that I fought for.
If we are to be an America safe and secure in our freedoms and our American way of life, we need to start out by being a better nation with a police that respect our constitutional rights. That's where true patriotism begins.
###

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 National Security
Victims of Police Attack During Anti-War Protest at Oakland Port Speak Out
Statement of Willow Rosenthal
FOR IMMEDIATE RELEASE
OAKLAND, CA - On the morning of April 7th, 2003 I went to the entrance to the American President's Line (APL) Terminal at 5:30 AM and later (around 7:30) to the entrance to the Stevedoring Services of America (SSA) Terminal to participate in non-violent picket lines in order to draw attention to the contracts APL and SSA have with the United States Department of Defense.
The picket consisted of people walking slowly in a circle blocking the entrance to the Terminals with signs, singing and chanting. After participating in the picket at APL, my friend Nan Eastep and I decided to move to the picket at SSA where we had heard that more people were needed. My friend left shortly after we arrived at SSA because she didn't want to get arrested and it seemed like the police were starting to break things up at the APL picket. While I was on the picket line at SSA, I started hearing loud noises and someone said the police were using ""shock grenades,"" but not tear gas to break up the picket lines at APL. Shortly after hearing this news, the police arrived on motorcycles and positioned themselves in front of the picket I was participating in. They got off their bikes and stood in a line approximately 25 feet from the picket. When the police arrived at the entrance to the SSA Terminal, I decided I didn't want to get arrested, and so I walked across the street to begin the walk back to my house located on Henry Street just off 7th about ¾ of a mile away. The police had evidently forced the other pickets at APL to break up and many of these people had assembled across the street from the SSA entrance. I joined this group across the street from the SSA Terminal at the entrance to Maritime.
As soon as I joined the group, the police moved in towards us. I believe it was around

8:45am at this time. This group was not engaging in any demonstration or activity, but was watching what was happening across the street at the terminal entrance, and I was intending to leave the area and go home. The police started driving towards the group (of which I was a member) on their motorcycles and shot more of the shock grenades, and were firing into the crowd with some other type of weapon. I ran with the rest of the group up Maritime attempting to stay away from the police fire. Since the police had closed off any other route we kept walking up Maritime. After a few minutes the police were not visible anymore.
At the corner of 7th Street and Maritime the group engaged in a discussion of what to do next. It was decided that we would go back to the BART Station about ½ mile up 7th Street (my house is two blocks away from the station). Police cars were blocking the entrance to 7th Street from Maritime. While the group was discussing, some of us were marching in a circle and singing on Maritime. We were there maybe about 15 minutes. I think it was around 9:15am. At this point, the police rode into view again on their motorcycles and made a line on Maritime facing 7th Street. I was afraid that if I went onto 7th Street this might be viewed by the police as an attempt to block the street, so I stayed on Maritime. I'm not sure if the police used their PA system to communicate with us, but if so, it was too low for me to hear. The group had decided to go up 7th Street back to the BART station, but right at that moment when we began moving in the direction of BART, and before much of the group had left Maritime, the police got off their bikes and began to fire into the group. The police line was about 30 feet away from me at this time. I saw the police begin to raise their rifles, so I turned to run. I was hit on the back of the right calf as I attempted to run away from the police fire. I felt that I was badly injured but I kept running since I was afraid of getting hit again. I ran into 7th Street, and the police kept advancing towards us, trapping us on the left side of the street just before a tunnel without pedestrian access that I could see. I was very afraid that I would be hit again. I didn't know if I should try to escape through the truck traffic in the 7th Street tunnel but that seemed dangerous too. Someone let me lean on them as we attempted to flee. Finally we found the entrance to the pedestrian walkway, and a few men carried me to the corner of 7th Street where a woman with a car drove me to my house on Henry Street.
I believe we arrived at my house at around 9:30 or 9:45. I'm not sure what was shot at me, but from the mark, it was probably one of the wooden dowels they were using, or maybe one of the grenades. The entire back of my calf was blood red and swollen with a circular mark of broken skin about ¾ of an inch across in the center. The calf was numb about 3 inches around the point of impact and I wasn't able to walk without assistance. We took photos then and later when I went to the Kaiser Oakland Emergency Room where I also filed a complaint against the Oakland Police Department, of which I did not get a copy. A police officer took my complaint.
###

 
 National Security
ACLU of Northern California Says Police's Unjustiﬁed and Unprovoked Use of Dangerous Weapons Against Demonstrators ""Will Not Be Tolerated""
Statement of Alan Schlosser, Legal Director of the ACLU of Northern California
FOR IMMEDIATE RELEASE
OAKLAND, CA - The City of Oakland and its Police Department sent a message out on April 7th - that the price of participating in nonviolent protest and picketing in Oakland might include being shot and seriously injured by the police. We are here today -the plaintiffs, the ILWU, the National Lawyers Guild, the American Civil Liberties Union, the attorneys - to send a message back. Our message is that such indiscriminate and excessive use of force is illegal and unconstitutional, and that people must not be deterred by this unprecedented police overreaction from exercising vigorously their constitutional right to dissent.
The claims in this case are grounded in two important constitutional rights - the Fourth Amendment, which prohibits the police from using unreasonable and excessive force, and the First Amendment, which prevents the government from unreasonably interfering with people's rights to engage in demonstrations, picketing and other expressive activities. The pictures of Oakland police kneeling and firing at a crowd of nonviolent demonstrators were shockingly reminiscent of images from decades ago - police in Birmingham, Alabama dispersing civil rights protestors or the National Guard at the campus of Kent State using deadly force as a means of crowd control. Whether the City's

intent was to discourage future protests at the Port, or whether a bureaucratic cost-benefit analysis suggested that these weapons were an efficient and inexpensive means of crowd control, the Constitution was a victim along with the demonstrators on April 7th.
One important goal of this lawsuit is insure that such unprovoked police violence is never again inflicted on those who seek to engage in vigorous protest activities - that is why we are not only seeking damages for the 40 named plaintiffs who were injured, but are also seeking an injunction that will require Oakland to adopt policies and procedures that prevent the use of such force in connection with First Amendment activities. We are bringing this case as a class action, on behalf of a class of persons who may attend demonstrations in Oakland in the future, as we hope to dissipate the anxiety and fear that the police actions have created for anyone who might attend a demonstration in Oakland. At a time when state and national and international crises and controversies inevitably lead to demonstrations and protests in the streets, not just of Oakland, but throughout this state and country, it is important that the word go out that the unjustified and unprovoked use of such dangerous weapons against demonstrators will not be tolerated.
###
Published on American Civil Liberties Union (http://www.aclu.org) Source URL: http://www.aclu.org/national-security/aclu-northern-californiasays-polices-unjustified-and-unprovoked-use-dangerous-wea

 
 National Security
Victims of Police Attack During Anti-War Protest at Oakland Port Speak Out
Statement of Local 10, ILWU
FOR IMMEDIATE RELEASE
OAKLAND, CA - Local 10 of the International Longshore and Warehouse Union (ILWU) has joined in the filing today of this class action lawsuit to secure justice and legal protections for its members, as well as demonstrators and other observers, who were wrongly attacked by the Oakland Police Department on April 7, 2003 at the Port of Oakland. Local 10 is outraged by the Oakland Police's use of excessive force not only against demonstrators but also against observers and bystanders, including many Local 10 members. Local 10 is especially angry that nine of our members, none of whom were involved in the demonstration, were actually shot and injured while simply trying to report to their jobs at the Port of Oakland.
In joining this lawsuit, Local 10 hopes to prevent such police action from ever occurring again and to obtain new Oakland Police policies and practices that protect all citizens' right to engage in free speech activities without being subject to excessive and violent police force.
###
Published on American Civil Liberties Union (http://www.aclu.org) Source URL: http://www.aclu.org/national-security/victims-police-attack-duringanti-war-protest-oakland-port-speak-out

 
 TRAINING

BULLETIN

Date of Issue / Revision: 28 Oct 05

Index Number: III–G Alpha Index: Crowd Control
and Crowd Management

“Department Training Bulletins shall be used to advise members of current police techniques and procedures and shall constitute official policy.”
Department General Order A—7; 21 July 1989

OPD Crowd Control and Crowd Management Policy
The purpose of this Training Bulletin is to set forth policy and procedures regarding crowd management and crowd control.
I. Policy
The Oakland Police Department crowd management and crowd control policy is to
• apply the appropriate level of direction and control to protect life, property, and vital facilities;
• maintain public peace and order; and
• uphold constitutional rights of free speech and assembly while relying on the minimum use of physical force and authority required to address a crowd management or crowd control issue.

Crowd Control and Crowd Management, Index No. III–G
II. Definitions
A. Crowd Management
Crowd management is defined as techniques used to manage lawful public assemblies before, during, and after an event for the purpose of maintaining the event’s lawful status. Crowd management can be accomplished in part through coordination with event planners and group leaders, permit monitoring, and past event critiques.
B. Crowd Control
Crowd control is defined as those techniques used to address unlawful public assemblies, including a display of formidable numbers of police officers, crowd containment, dispersal tactics, and arrest procedures.
C. First Amendment Activities
First Amendment activities include all forms of speech and expressive conduct used to convey ideas and/or information, express grievances, or otherwise communicate with others and include both verbal and non-verbal expression.
Common First Amendment activities include, but are not limited to, speeches, demonstrations, vigils, picketing, distribution of literature, displaying banners or signs, use of puppets to convey a message, street theater, and other artistic forms of expression. All these activities involve the freedom of speech, association, and assembly and the right to petition the government, as guaranteed by the United States Constitution (First Amendment) and the California Constitution (Article 1, Sections 2 & 3).
All persons have the right to march, demonstrate, protest, rally, or perform other activities protected by the First Amendment of the United States Constitution and the California Constitution.
The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
D. Demonstration
Demonstration is used generically in this Training Bulletin to include a wide range of First Amendment activities which require, or which may require, police traffic control, crowd management, crowd control, crowd dispersal, or enforcement actions in a crowd situation.
As used in this Training Bulletin, the term, demonstration, means a public display of a group’s or individual’s feeling(s) toward a person(s), idea, cause, etc and includes, but is not limited to, marches, protests, student walk-outs, assemblies, and sit-ins. Such events and activities usually attract a crowd of persons including participants, onlookers, observers, media, and other persons who may disagree with the point of view of the activity.
2

Oakland Police Department, 28 Oct 05
E. Crowd Event or Crowd Situation
This Training Bulletin covers all crowd events or crowd situations, including sporting events, festivals, concerts, celebratory crowds, and demonstrations as defined above.
III. General Principles
The Oakland Police Department’s Crowd Management/Crowd Control Policy consists of the general principles discussed below.
A. Planning
1. Command staff shall be notified immediately of large or potentially disruptive demonstrations and/or crowd events.
2. The Incident Commander shall be responsible for the development of a written operations plan.
3. The Incident Command System shall be used for managing crowds and acts of civil disobedience.
4. OPD shall make every effort to follow the principle of establishing contact and communication with the event or demonstration planners.
Stakeholder involvement is critical to the overall success of managing crowd events and/or civil disobedience during demonstrations. If knowledge exists that a demonstration or crowd event may happen or will happen, OPD shall proactively and repeatedly make every reasonable attempt to establish and to maintain communication and cooperation with representatives or leaders of the demonstration or crowd event, without regard to whether a permit has been applied for or issued.
When planning for and responding to demonstrations, crowd events, and civil disobedience situations, Incident Commanders assigned to these incidents shall facilitate the involvement of stakeholders. If and when communication is established, personnel shall make every effort to identify representatives or leaders of the event and identify a primary police liaison. The primary police liaison should be requested to be in continuous contact with an assigned police representative, preferably the Incident Commander or someone with continuous access to the Incident Commander.
A group’s failure to respond to OPD attempts to establish communication and cooperation prior to a demonstration shall not mitigate OPD’s efforts to establish liaison and positive communication with the group as early as possible at the scene of the demonstration or crowd event.
3

Crowd Control and Crowd Management, Index No. III–G
5. Spontaneous demonstrations or crowd events, which occur without prior planning and/or without prior notice to the police, present less opportunity for OPD planning and prevention efforts. Nonetheless, the same policies and regulations concerning crowd management, crowd control, crowd dispersal, and police responses to violence and disorder apply to a spontaneous demonstration or crowd event situation as to a planned demonstration or crowd event. Incident Commanders shall involve representatives of demonstrators or crowd events when planning and responding to both planned and spontaneous events.
B. Deployment
1. Decisions about crowd dispersal and general strategies about crowd containment or crowd redirection, multiple simultaneous arrests, planned individual arrests, or planned use of force shall be made at the level of the Incident Commander or higher.
a) If such decisions are made by higher ranking off-site OPD officials, it is required that the Incident Commander first be consulted about the state of affairs in the field and the potential consequences of the decision.
b) All such decisions shall be documented in writing with regard to time, the identity of the person making the decision, and the precise decision and directions given. Such documentation shall be made at the time of the decision or as soon thereafter as possible and included in an After Action Report.
This directive shall not preclude individual commanders, supervisors, and officers from defending themselves or others from imminent danger when the delay in requesting permission to take action would increase the risk of injury.
2. OPD recognizes that the designated police liaison may change during the course of an event and that leadership of certain groups may not exist nor desire to be identified. No retaliatory practices or adverse action shall be taken by OPD against a group because it has failed or refused to appoint a police liaison or otherwise establish lines of communication with OPD.
3. Communication with the identified police liaison shall continue even if enforcement actions commence.
4. As staffing permits, officers should be deployed to the best available vantage points to observe and report crowd actions.
5. Lines of control should be established, especially in events that involve protesters with opposing views. Whenever possible, hostile factions should be separated.
6. Considering the type of crowd involved is an important factor in responding properly to its behavior.
Crowds may vary from cooperative or celebratory to non-compliant, hostile, and combative. Organized demonstrations in which some engage in coordinated, nonviolent civil disobedience should be distinguished, to the extent possible, from crowds in which substantial numbers of people are engaged in other types of unlawful acts.
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C. Policing a Crowd
1. Sufficient resources to make multiple simultaneous arrests should be available at demonstrations where such arrests are a reasonable possibility. However, this need must be balanced against the fact that a large and visible police presence may have a chilling effect on the exercise of free speech rights.
Where additional resources are needed, they should be deployed to the greatest extent possible so they are not readily visible to the crowd. When possible, officers should be at their posts well in advance of arriving participants. If possible, officers should be positioned at a reasonable distance from the crowd to avoid a perception of intimidation.
2. In general, OPD officers shall work together in squads or platoons when policing a demonstration.
3. Each officer shall wear a badge, nameplate, or other device on the outside of his or her uniform or on his or her helmet which bears the identification number or the name of the officer, as required by Penal Code § 830.10.
The number or name shall be clearly visible at all times. The letters or numerals on helmets, jackets, and vests shall be clearly legible at a distance sufficient to provide a measure of safety for both officers and demonstrators/observers and, in no case, shall be less than two inches in height on helmets.
4. Crowd control and crowd dispersal, as well as a show of force in crowd control situations, should be accomplished whenever possible using specialized units of OPD rather than onduty patrol officers.
5. Regardless of whether a parade permit has been obtained, OPD officers will try to facilitate demonstrations that may temporarily block traffic and/or otherwise use public streets subject to time, place, and manner of circumstances, by regulating and/or rerouting traffic as much as practical.
For a demonstration without a pre-planned route, the Incident Commander shall evaluate the size of the crowd with regard to whether demonstrators should be required to stay on the sidewalk or whether demonstrators should be allowed to be in one or more lanes of traffic.
This directive does not mean demonstrations must be allowed to deliberately disrupt commuter traffic and/or bridge approaches.
The Incident Commander shall balance the level of disruption to traffic against the OPD policy of facilitating First Amendment activity, the practicality of relegating the crowd to sidewalks or an alternate route, the expected duration of the disruption, and the traffic disruption expected in making a mass arrest if demonstrators refuse to leave the street.
OPD shall seek to communicate with organizers through their police liaison to resolve a problem if possible. Traffic control may also be essential at varying points in a demonstration and may help accomplish crowd containment, crowd isolation, or crowd dispersal.
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6. It is essential to recognize that all members of a crowd of demonstrators are not the same.
Even when some members of a crowd engage in violence or destruction of property, other members of the crowd are not participating in those acts. Once some members of a crowd become violent, the situation often turns chaotic, and many individuals in the crowd who do not want to participate in the violent or destructive acts may be blocked from leaving the scene because the crowd is so large or because they are afraid they will move into a position of heightened danger.
This understanding does not mean OPD cannot take enforcement action against the crowd as permitted under this policy, but OPD shall seek to minimize the risk that force and arrests may be directed at innocent persons.
7. OPD officers shall avoid negative verbal engagement with members of the crowd.
Verbal abuse against officers shall not constitute a reason for an arrest or for any use of force against such individuals.
8. Officers must not be affected by the content of the opinions being expressed nor by the race, gender, sexual orientation, physical disabilities, appearances, or affiliation of anyone exercising their lawful rights.
9. Department personnel must maintain professional demeanor and remain neutral in word and deed despite unlawful or anti-social behavior on the part of crowd members. Unprofessional police behavior can inflame a tense situation and make control efforts more difficult and dangerous.
Strong supervision and command are essential to maintaining unified, measured, and effective police response. A response incorporating strong leadership and based upon teamwork is crucial to maintaining control and safety. Impulsive or independent actions by officers are to be avoided.
10. Officers in non-violent crowd situations shall not display weapons before a dispersal order is given or other enforcement action is implemented.
11. OPD officers shall not be sent into an obviously hostile crowd solely for the purpose of communication. OPD officers shall not penetrate a crowd for an individual arrest unless the targeted individual is involved in serious criminal conduct and the decision to move into the crowd is made by a supervisor or commander.
12. The Incident Commander and supervisors shall make every effort to ensure that the police mission is accomplished as efficiently and unobtrusively as possible with the highest regard for the human dignity and liberty of all persons and with minimal reliance on the use of physical force.
The use of force shall be restricted to circumstances authorized by law and to the degree reasonably necessary in light of the circumstances confronting members. This directive does not preclude police officers from taking appropriate action to direct crowd and vehicular movement; enforce ordinances and statutes; and employ the physical force necessary to maintain the safety of the crowd, the general public, law enforcement personnel, and emergency personnel.
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IV. Responses to Crowd Situations
A. Spontaneous Event or Incident 1. The Watch Commander shall respond to the scene of spontaneous events, when practical,
and take command of the incident as the Incident Commander until relieved by a ranking officer. The Incident Commander shall declare over the police radio that he or she has assumed command of the incident. When practical, a command post shall be established as soon as possible. 2. An immediate assessment of the situation is essential for effective police response. The Incident Commander must ascertain the following information at the earliest possible time: a. The location and type of event. b. First Amendment activities will be evaluated by the Incident Commander to determine
lawfulness of the actions by groups and individuals. c. The approximate number of specific individuals engaged in unlawful conduct. d. The likelihood that unlawful behavior will spread to other crowd participants (mimick-
ing). e. Immediate threats to the safety of the public and/or police officers. f. The number of structure(s) or vehicle(s) involved. g. The size of the involved area. h. The number of additional officers and police resources needed as well as requirements
for specialized units (Traffic, Tactical Operations Team, Crime Reduction Teams, etc.). i. The appropriate manner of response (Code 2 or 3). j. The staging area. k. The location for a media staging area. l. The ingress and egress routes. m. Additional resources needed (paramedic, fire department, outside agencies, etc.).
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B. Planned Event Involving Potentially Large Crowds 1. Upon notification, the Special Operations Division Commander or designee (Incident
Commander) shall develop a written operations plan. The Incident Commander of planned events shall be responsible for the overall coordination of the event as well as for crowd control and management. Operations plans for large events requiring the redeployment of personnel from regular assignments shall be approved by the Deputy Chief of Field Operations. 2. The following factors shall be considered and addressed in developing the operations plan for a large crowd event, including but not limited to: a. What type of event is to occur? b. Who are the organizers? What is their past record of conduct (peaceful, violent, coopera-
tive, etc.)? c. Will outsiders visibly and/or physically oppose the planned event? d. Will the event involve the use or abuse of alcohol or other substances? e. Where is the event to occur? Consider the size, location, and ingress and egress points. f. What is the optimal site for a command post as well as staging areas? g. Have the appropriate permits been issued? h. Have other agencies, bureaus, and divisions been notified and included in the planning
process (paramedics, fire department, Communications, Intel, etc.)? i. Will the EOC be needed? Is Mutual Aid needed? j. Will off-duty personnel be involved? Has the commander of any off-duty personnel
been made part of the planning process? k. Is it possible and appropriate to coordinate with group organizers and explain the
Department's mission, preparation, and potential responses? Information considered sensitive or confidential shall not be released to group organizers if it will jeopardize the safety or effectiveness of police personnel. l. Have the proper number of personnel been scheduled to safely handle the event? Should a reserve force be available? m. Has an enforcement policy been formulated and communicated to affected personnel?
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3. The OPD Event Coordinator shall perform the following tasks.
a. Gather and analyze intelligence information about future crowd events, including review of information from both internal and external sources.
b. Coordinate with Special Events regarding permits and various Department sections, including bureaus, divisions, and specialized units, to prepare for a planned special event.
c. Meet in advance with event sponsors and group leaders to exchange information and to present the Department's philosophy and intent. Details of the department plan and preparation shall not be disclosed except when necessary to ensure success of the operation.
d. Coordinate with affected bureaus, divisions, police service areas, and special units to prepare and coordinate the development of an operations plan for a given event that details assignments, traffic and crowd flow, communications, tactics, and training.
e. Prepare operations plan as requested.
f. Coordinate inspection of protest/event area prior to an event to locate any pre-positioned equipment staged by demonstrators.
g. Ensure that appropriate equipment and supplies are available.
h. Ensure that a video team(s) is established and required video equipment is available (see Section IX).
i. Establish protocols and procedures for the processing of arrestees and collection of evidence.
4. Personnel creating an operations plan to address a large crowd event should anticipate a variety of scenarios and devise a police response for each. Such scenarios and responses should be made part of the final plan and communicated to the affected personnel.
5. When practical, personnel preparing for a large event with the potential for violence shall be retrained; training to include physically practicing various aspects of crowd management and crowd control.
Topics may include but are not limited to Mobile Field Force (MFF), multiple simultaneous arrest procedures, functioning in a tear gas environment, use of specialty impact munitions, applicable ordinances and statutes, protected speech, etc.
6. Personnel shall be briefed on the operations plan and their particular assignments before deployment.
Specific instructions covering topics such as applicable laws, community concerns, appropriate enforcement actions, chain of command, tactics, traffic patterns, etc., shall be clearly presented to personnel. All personnel shall be given a copy of the operations plan.
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V. Permissible Crowd Control and Crowd Dispersal Techniques
A. In the event of a declared unlawful assembly, it is the general policy of the OPD to use multiple simultaneous arrests to deal with a non-violent demonstration that fails to disperse and voluntarily submits to arrest as a form of political protest rather than dispersing the demonstrators by using weapons or force beyond that necessary to make the arrests.
B. The Incident Commander shall make the final decision as to what control action, if any, will be taken to address a given crowd situation. Crowd size and available Department resources will also factor into the police response. The following factors will be considered prior to determining what action to take:
1. Will police action likely improve the situation? 2. Will targeting specific violent or disruptive individuals for arrest be more effective or appro-
priate than applying control tactics to the entire crowd? 3. Are sufficient resources available to effectively manage the incident? 4. Have clear and secure escape routes been established for both the crowd and the police? 5. Has the dispersal order been given (loudspeaker, personal contact, etc.)? 6. Have contingency plans been established in the event initial police efforts are ineffective? C. Commanders shall constantly reassess and adjust tactics, as necessary, as the crowd’s actions
change. D. The Incident Commander shall consider and take reasonable and appropriate steps to ensure
the safety of bystanders. E. When officers take action to move or disperse a crowd, steps should be taken to ensure that
the crowd is not moved into a position or place that could be dangerous to persons in the crowd or bystanders, such as pushing them up against glass windows.
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F. When an Unlawful Assembly May Be Declared
1. The definition of an unlawful assembly has been set forth in Penal Code Section 407 and interpreted by court decisions. The terms, “boisterous” and “tumultuous,” as written in Penal Code Section 407, have been interpreted as “conduct that poses a clear and present danger of imminent violence” or when the demonstration or crowd event is for the purpose of committing a criminal act.
The police may not disperse a demonstration or crowd event before demonstrators have acted illegally or before the demonstrators pose a clear and present danger of imminent violence.
2. The mere failure to obtain a permit, such as a parade permit or sound permit, is not a sufficient basis to declare an unlawful assembly. There must be criminal activity or a clear and present danger of imminent violence.
3. The fact that some of the demonstrators or organizing groups have engaged in violent or unlawful acts on prior occasions or demonstrations is not grounds for declaring an assembly unlawful.
4. Unless emergency or dangerous circumstances prevent negotiation, crowd dispersal techniques shall not be initiated until after attempts have been made through contacts with the police liaisons and demonstration or crowd event leaders to negotiate a resolution of the situation so that the unlawful activity will cease and the First Amendment activity can continue.
5. If after a crowd disperses pursuant to a declaration of unlawful assembly and subsequently participants assemble at a different geographic location where the participants are engaged in non-violent and lawful First Amendment activity, such an assembly cannot be dispersed unless it has been determined that it is an unlawful assembly and the required official declaration has been adequately given.
G. Declaration of Unlawful Assembly
1. When the only violation present is unlawful assembly, the crowd should be given an opportunity to disperse rather than face arrest.
Crowd dispersal techniques shall not be initiated until OPD has made repeated announcements to the crowd, asking members of the crowd to voluntarily disperse and informing them that, if they do not disperse, they will be subject to arrest.
These announcements must be made using adequate sound amplification equipment in a manner that will ensure that they are audible over a sufficient area. Announcements must be made from different locations when the demonstration is large and noisy. The dispersal orders should be repeated after commencement of the dispersal operation so that persons not present at the original broadcast will understand that they must leave the area. The announcements shall also specify adequate egress or escape routes. Whenever possible, a minimum of two escape/egress routes shall be identified and announced.
It is the responsibility of the on-scene OPD commanders to ensure that all such announcements are made in such a way that they are clearly audible to the crowd.
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2. Unless an immediate risk to public safety exists or significant property damage is occurring, sufficient time will be allowed for a crowd to comply with police commands before action is taken.
3. Dispersal orders should be given in English and in other languages that are appropriate for the audience.
4. The Incident Commander should ensure that the name of the individual making the dispersal order and the date/time each order was given is recorded.
5. Dispersal orders should not be given until officers are in position to support/direct crowd movement.
6. Personnel shall use the following Departmental dispersal order:
I am (rank/name), a peace officer for the City of Oakland. I hereby declare this to be an unlawful assembly, and in the name of the people of the State of California, command all those assembled at _____________ to immediately leave. If you do not do so, you may be arrested or subject to other police action, including the use of force which may result in serious injury.. Section 409 of the Penal Code prohibits remaining present at an unlawful assembly. If you remain in the area just described, regardless of your purpose, you will be in violation of Section 409. The following routes of dispersal are available (routes). You have _______ minutes to leave. If you refuse to move, you will be arrested.
*If you refuse to move, chemical agents will be used. (Provide the chemical warning only if use is anticipated).
7. When a command decision is made to employ crowd dispersal techniques, attempts to obtain voluntary compliance through announcements and attempts to obtain cooperation through negotiation shall both be continued. At any point at which a crowd is dispersing, whether as a reaction to police dispersal techniques, through voluntary compliance, or as a result of discussion or negotiation with crowd leaders, OPD dispersal techniques shall be suspended and the crowd shall be allowed to disperse voluntarily. This directive does not preclude a command decision by OPD to reinstate dispersal techniques if crowd compliance ceases.
H. Approved Tactics and Weapons to Disperse or Control a Non–Compliant Crowd
If negotiation and verbal announcements to disperse do not result in voluntary movement of the crowd, officers may employ additional crowd dispersal tactics, but only after orders from the Incident Commander or designated supervisory officials.
The permissible tactics to disperse or control a non-compliant crowd include all of the following (not in any specific order of use):
The use of these crowd dispersal tactics shall be consistent with the Department policy of using the minimal police intervention needed to address a crowd management or control issue.
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1. Display of police officers (forceful presence).
Once this tactic is selected, officers should be assembled in formation at a location outside the view of the crowd. The formation may be moved as a unit to an area within the crowd's view. This tactic should not be used unless there are sufficient personnel to follow through with dispersal. Do not bluff a crowd. If a display of police officers, motorcycles, police vehicles, and mobile field forces, combined with a dispersal order, is not effective, more forceful actions may be employed.
Generally, officers should be assigned to squads of sufficient size to be effective. At larger events, the crowd can be divided (with a commander in charge of each squad).
2. Encirclement and Arrest
If the crowd has failed to disperse after the required announcements, officers may encircle the crowd or a portion of the crowd for purposes of making multiple simultaneous arrests (see Section VII).
Persons who make it clear (e.g., by sitting down, locking arms) that they seek to be arrested shall be arrested and not subjected to other dispersal techniques, such as the use of batons or chemical agents.
Arrests of non-violent persons shall be accomplished by verbal commands and persuasion, handcuffing, lifting, carrying, the use of dollies and/or stretchers, and/or the use of control holds including the bent-wrist control hold and twist-lock control hold (See Training Bulletin III-I.1, “Weaponless Defense,” at pages 28-31.).
Control holds should only be used when a Supervisor or Commander determines that control holds are necessary to accomplish the policing goal after other methods of arrest have failed or are not feasible under the circumstances and when the use of control holds would be a lawful use of force.
In the event control holds are necessary, precautions should be taken to assure that arrestees are not injured or subjected to unnecessary or excessive pain (T.B. III-1).1).
A decision to authorize control holds and the reasons for said decision should be documented.
3. Police Formations and Use of Batons
a. If a crowd refuses to disperse after the required announcements, the police may use squad or platoon formations (skirmish line, wedge, echelons, etc.) to move the crowd along.
b. Batons shall not be used for crowd control, crowd containment, or crowd dispersal except as specified below.
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c. Batons may be visibly displayed and held in a ready position during squad or platoon formations.
When reasonably necessary for protection of the officers or to disperse individuals in the crowd pursuant to the procedures of this policy, batons may be used in a pushing or jabbing motion. Baton jabs should not be used indiscriminately against a crowd or group of persons but only against individuals who are physically aggressive or actively resisting arrest. Baton jabs should not be used in a crowd control situation against an individual who is physically unable to disperse or move because of the press of the crowd or some other fixed obstacle.
d. Batons shall only be used as set forth in General Order K-3 and Department Training Bulletin III—H.2, “Use of the Long Baton.”
Officers shall not intentionally strike a person with any baton to the head, neck, throat, kidneys, spine, or groin or jab with force to the left armpit except when the person’s conduct is creating an imminent threat of serious bodily injury or death to an officer or any other person. Batons shall not be used against a person who is handcuffed.
4. Non Hand–Held Crowd Control Chemical Agents
a. Crowd control chemical agents are those chemical agents designed and intended to move or stop large numbers of individuals in a crowd situation and administered in the form of a delivery system which emits the chemical agent diffusely without targeting a specific individual or individuals.
b. Chemical agents can produce serious injuries or even death. The elderly person or infant in the crowd or the individual with asthma or other breathing disorder may have a fatal reaction to chemical agents even when those chemical agents are used in accordance with the manufacturer’s recommendations and the Department’s training. Thus, crowd control chemical agents shall be used only if other techniques, such as encirclement and multiple simultaneous arrest or police formations, have failed or will not accomplish the policing goal as determined by the Incident Commander.
c. Members shall use the minimum amount of chemical agent necessary to obtain compliance.
d. Indirect delivery or crowd dispersal spray and/or discharge of a chemical agent shall not be used in demonstrations or other crowd events without the approval of a supervisor or command officer.
e. Chemical agents shall not be used for crowd control or dispersal without first giving audible warning of their imminent use and giving reasonable time to the crowd, media, and observers to disperse.
f. If chemical agents are contemplated in crowd situations, OPD shall have medical personnel on site prior to their use and shall make provision for decontamination and medical screening to those persons affected by the chemical agent(s).
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5. Hand-thrown chemical agents or pyrotechnic gas dispersal devices a. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall not be used for crowd control or crowd dispersal without the approval of a supervisor or command officer. b. The use of hand-thrown chemical agents or pyrotechnic gas dispersal devices may present a risk of permanent loss of hearing or serious bodily injury from shrapnel. Said devices shall be deployed to explode at a safe distance from the crowd to minimize the risk of personal injury and to move the crowd in the direction that will accomplish the policing objective. c. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall not be used for crowd control without first giving audible warnings to the crowd and additional reasonable time to disperse. d. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall be used only if other techniques such as encirclement and mass arrest or police formations have failed or will not accomplish the policing goal as determined by the Incident Commander.
VI. Weapons Prohibited for Crowd Control and Crowd Dispersal Purposes
A. Lethal Force The use of lethal force by OPD members is governed by the Department’s Use of Force Policy. Nothing about a crowd control situation eliminates or changes any of the constraints and criteria governing the use of lethal force in the Department’s Use of Force Policy. B. Canines Canines shall not be used for crowd control, crowd containment, or crowd dispersal. C. Horses Horses shall be used only for purposes of crowd control in the event of a riot involving substantial numbers of people actively engaged in violence or serious property destruction. Horses shall never be used to disperse non-violent crowds, including persons who are seated or lying down. Horses may be used for crowd management during festivals and sporting events. D. Fire Hoses Fire hoses shall not be used for crowd control, crowd containment, or crowd dispersal.
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E. Motorcycles
The technique referred to as the Basic Use of Motorcycle Push Technique (B.U.M.P.) outlined in Special Order No. 7088 is prohibited (See Special Order No. 8135 prohibiting said technique enacted April 5 2004.). Motorcycles and police vehicles may not be used for crowd dispersal but may be used for purposes of observation, visible deterrence, traffic control, transportation, and area control during a crowd event.
F. Specialty Impact Less–Lethal Weapons
1. Skip Fired Specialty Impact Less–Lethal Munitions (Wooden Dowels and Stinger Grenades) are prohibited.
a. Any and all less–lethal specialty impact weapons designed to be skip fired or otherwise deployed in a non-directional non-target specific manner, including but not limited to the Multiple Wood Baton Shell (264W) manufactured by Armor Holdings, Inc. shall not be used at all by OPD during demonstrations or crowd events (See Special Order No. 8135 prohibiting indirect fired less–lethal munitions and withdrawing said ammunition, enacted April 5, 2004.).
b. The use of the Stinger Grenade containing rubber pellets designed to be deployed in a non-directional non-target specific manner is also prohibited for all crowd control use.
2. Uses of Direct Fired Specialty Impact Less-Lethal Munitions (SIM).
. Direct Fired SIM are less–lethal specialty impact weapons that are designed to be direct fired at a specific target, including but not limited to flexible batons (“bean bags”), and shall not be used for crowd management, crowd control or crowd dispersal during demonstrations or crowd events. Direct Fired SIM may never be used indiscriminately against a crowd or group of persons even if some members of the crowd or group are violent or disruptive.
a. Direct Fired SIM may be used against a specific individual who is engaging in conduct that poses an immediate threat of loss of life or serious bodily injury to himself or herself, officers, or the general public or who is engaging in substantial destruction of property which creates an imminent risk to the lives or safety of other persons. In such instances, Direct Fired SIM shall be used only when other means of arrest are unsafe and when the individual can be targeted without endangering other crowd members or bystanders (See Special Order No. 8135 enacted April 15, 2004.).
b. The use of Direct Fired SIM must cease when the violent or destructive actions cease. These weapons must not be used for the purpose of apprehension or to otherwise prevent escape unless escape would present a substantial risk of continued imminent threat to loss of life or serious bodily injury.
c. Members shall only deploy Direct Fired SIM during a demonstration or crowd event under the direction of a supervisor.
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d. When circumstances permit, the supervisor on the scene shall make an attempt to accomplish the policing goal without the use of Direct Fired SIM as described above, and, if practical, an audible warning shall be given to the subject before deployment of the weapon.
e. Any person struck by a round shall be transported to a hospital for observation and any necessary treatment. Ambulance service, if required, shall be ordered per General Order I-4. First aid, when necessary, shall be administered per Training Bulletin III-K.
f. No member shall use Direct Fired SIM without formal training.
g. Direct Fired SIM shall not be used against a person who is under restraint.
h. Members shall not discharge a Direct Fired SIM at a person’s head, neck, throat, face, left armpit, spine, kidneys, or groin unless deadly force would be justified.
G. Electronic Immobilizing Devices (EID’s)
EID’s such as tasers, stun guns, and stun shields shall not be used for crowd management, crowd control, or crowd dispersal during demonstrations or crowd events.
H. Aerosol Hand–held Chemical Agents
Aerosol, hand–held, pressurized, containerized chemical agents that emit a stream shall not be used for crowd management, crowd control, or crowd dispersal during demonstrations or crowd events. Aerosol hand held chemical agents may not be used indiscriminately against a crowd or group of persons, but only against specific individuals who are engaged in specific acts of serious unlawful conduct or who are actively resisting arrest.
Members shall use the minimum amount of the chemical agent necessary to overcome the subject’s resistance.
Officers must be familiar with OPD Training Bulletin V-F.2, “Use of Oleoresin Capsicum,” and, specifically, the risk factors associated with aerosol chemical agents and the treatment for individuals subjected to them.
Aerosol chemical agents shall not be used in a demonstration or crowd situation or other civil disorders without the approval of a supervisor or command officer.
When possible, persons should be removed quickly from any area where hand–held chemical agents have been used. Members shall monitor the subject and pay particular attention to the subject’s ability to breathe following the application of OC. As soon as practical, members and employees shall obtain professional medical treatment for all persons who have had OC applied to them. Paramedics in the field may administer treatment if no other medical treatment is required. If paramedics are not available in a timely manner, subjects shall be transported to a hospital for treatment within 45 minutes of the application of OC.
A subject who has been sprayed with hand–held chemical agents shall not be left lying on his/her stomach once handcuffed or restrained with any other device.
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VII. Arrests
A. Multiple Simultaneous Arrests
1. When a large-scale event involving possible arrests is to be conducted, OPD planners will estimate the number of potential arrestees and will configure arrest teams capable of managing multiple arrests safely.
2. When arrests are necessary, the Incident Commander shall attempt to ensure that sufficient numbers of police officers are present to effect arrests. This tactic can be effective in dispersing the remaining crowd members wanting to avoid arrest.
3. When multiple arrests are contemplated in advance and it is impracticable for arrestees to be cited at the scene as further discussed below, pre-arrangement of transportation shall be made.
4. The Incident Commander shall make the decisions to engage in selective individual arrests or multiple simultaneous arrests as a crowd control technique with consideration given to the following factors:
• The likelihood that police action will improve the situation relative to taking no action. • The seriousness of the offense(s) as opposed to the potential for the arrest to escalate
violence or unlawful activity by crowd members. • Whether individual or mass arrests will be more effective in ending the criminal activity
at issue. • Whether clear and secure escape routes have been established for the crowd and police. • Whether communication has been established with crowd representatives. • What contingency plans are available. • What types of force can be used in effecting the arrests, if necessary.
5. Probable cause for each individual arrest:
Individuals may not be arrested based on their association with a crowd in which unlawful activity has occurred. There must be probable cause for each individual arrest.
This principle means the officer must have objective facts based on his own knowledge or information given him by other officers sufficient to believe that each specific individual being arrested committed the offense. Thus, the only proper basis for a multiple simultaneous arrest of all the individuals encircled at a demonstration is failure to disperse (Pen. Code §409), when the dispersal was properly ordered based on the existence of an unlawful assembly and adequate notice and opportunity to disperse has been given.
To make arrests for violating Vehicle Code §2800 (noncompliance with lawful police order), the officer must have probable cause to believe that each individual arrested willfully failed or refused to comply with a lawful order.
6. The Incident Commander shall ensure that evidentiary items are recovered and preserved, when possible, to corroborate unlawful acts observed by personnel.
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B. Arrests for Civil Disobedience
1. Some demonstrators commit “civil disobedience,” by sitting down or otherwise blocking streets, intersections, sidewalks, and/or entranceways or by occupying a targeted office.
The proper response to such actions is to verbally advise the demonstrators that they will be subject to arrest if they choose to remain, allow time for some or all the demonstrators to cease the unlawful activity, and to arrest those who deliberately remain in violation of the law.
When practical, demonstrators committing civil disobedience shall be persuaded into compliance rather than being forcibly removed.
2. Passively resisting arrestees (i.e., arrestees who go limp) shall be arrested by handcuffing and then either by verbal persuasion, lifting, carrying, the use of dollies or stretchers, and/or control holds (See Training Bulletin “Weaponless Defense” III-I.1 at pages 28 – 31), depending on the circumstances and the decision of the Supervisor.
Control holds should be used only when the Supervisor determines that control holds are necessary to accomplish the policing goal after other methods of arrest have failed or are not feasible under the circumstances and when the use of control holds would be a lawful use of force.
In the event control holds are necessary, precautions must be taken to ensure that arrestees are not injured or subjected to unnecessary or excessive pain.
A Supervisor’s decision to authorize control holds and the reasons for said decision should be documented.
Planning for demonstrations where civil disobedience and passive resistance to arrest are a possibility should take into account these different arrest techniques for passive demonstrators.
3. In some cases, demonstrators may lock arms or use lock boxes to slow down the arrest process.
Where such demonstrators have been advised that they will be subject to arrest if they choose to remain and refuse to disperse, a member of the arrest team shall individually advise each demonstrator that he or she is under arrest prior to the application of any force to remove locking devices or to move the demonstrators. The officer shall continue to give verbal directions to give the arrestee a chance to comply before force is used to unlock arms or implements used to remove lock boxes.
4. Although dealing with passive resistance may frustrate officers, civil disobedience is usually a nonviolent means of making a political statement, and officers shall remain neutral, nonantagonistic, and professional at all times in their response.
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C. Use of Handcuffs 1. All persons subject to arrest during a demonstration or crowd event shall be handcuffed in
accordance with department policy, orders, and Training Bulletins. 2. Officers should be cognizant that flex-cuffs may tighten when arrestees’ hands swell or
move, sometimes simply in response to pain from the cuffs themselves. Each unit involved in detention and/or transportation of arrestees with flex-cuffs should have a flex-cuff cutter and adequate supplies of extra flex-cuffs readily available. The officer applying flex-cuffs shall write his serial number in indelible marker on the cuffs whenever used. When arrestees complain of pain from overly tight flex cuffs, members shall examine the cuffs to ensure proper fit D. Arrest of Juveniles Juveniles arrested in demonstrations shall be handled consistent with OPD policy on arrest, transportation, and detention of juveniles.
VIII. Cite/Release and Booking Procedures
A. Individuals arrested for minor offenses may be cited and released in compliance with Penal Code §853.6 and Department General Order M-7, “Citations for Adult Misdemeanors,” III, A-N.
B. When it is impractical to cite arrestees at or near the site of the demonstration because of a substantial risk that this procedure would allow the unlawful activity to continue or because of specific geographic factors, individuals may be held at police stations or jails for the duration of the cite and release process.
C. An officer seeking to book a misdemeanor arrestee into jail must have an articulable basis to believe that one of the specified statutory exceptions to mandatory cite and release applies to that individual. This basis must be documented in the police report.
D. The mere fact that further demonstrations are likely to be held in the near future is not a proper basis to apply subdivision (7) of P.C. 853.6 (“reasonable likelihood that the offense may continue or resume”) to individual demonstrators.
E. There must be an articulable objective basis to believe that, if cited out, those specific individuals would continue the same illegal activity for which they were arrested.
F. Individuals may not be booked into jail on the sole basis of a felony charge consisting of conspiracy to commit a misdemeanor.
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Oakland Police Department, 28 Oct 05
IX. Documentation
A. Video and Photographic Recording 1. It is the policy of the Department to videotape and photograph in a manner that minimizes
interference with people lawfully participating in First Amendment activities. Videotaping and photographing of First Amendment activities shall take place only when authorized by the Incident Commander or other supervisory officer. 2. Individuals should not be singled out for photographing or recording simply because they appear to be leaders, organizers, or speakers. 3. Each camcorder operator shall write a supplemental report at the end of his/her duty assignment documenting the camcorder operations. 4. Unless they provide evidence of criminal activity, videos or photographs of demonstrations shall not be disseminated to other government agencies, including federal, state, and local law enforcement agencies. If videos or photographs are disseminated or shared with another law enforcement agency, a record should be created and maintained noting the date and recipient of the information. 5. If there are no pending criminal prosecutions arising from the demonstration or if the video recording or photographing is not relevant to an Internal Affairs or citizen complaint investigation or proceedings or to civil litigation arising from police conduct at the demonstration, the video recording and/or photographs shall be destroyed in accordance with Department and city policies. This directive shall not prohibit the OPD from using these videos or footage from such videos as part of training materials for OPD officers in crowd control and crowd dispersal techniques and procedures. The destruction of any such videos or photographs shall be documented in writing with regard to the date of the destruction and the identity of the person who carried it out. 6. Nothing in this section is intended to alter the disclosure requirements of the California Public Records Act (Government Code §6250 et seq.) or the City of Oakland’s Sunshine Ordinance (O.M.C. §2.20 et seq.).
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Crowd Control and Crowd Management, Index No. III–G
X. Reporting
A. The Incident Commander shall ensure that the Deputy Chief of the Bureau of Field Operations is notified of the incident in a timely manner.
B. OPD officers involved in demonstrations or crowd events shall prepare reports as required by Department policy.
XI. Public Information and the Media
A. The media have a right to cover demonstrations, including the right to record the event on video, film, or in photographs.
B. OPD members shall accommodate the media in accordance with Department policy. C. The media shall be permitted to observe and shall be permitted close enough access to the
arrestees to record their names. Even after a dispersal order has been given, clearly identified media shall be permitted to carry out their professional duties in any area where arrests are being made unless their presence would unduly interfere with the enforcement action. D. Self-identified legal observers and crowd monitors do not have the same legal status as the professional media and are, therefore, subject to all laws and orders similar to any other person or citizen. Said personnel must comply with all dispersal orders similar to any other person or citizen. A supervisor or commander may allow a person who self-identifies as a legal observer or crowd monitor to remain in an area after a dispersal order if circumstances permit and if the person’s presence would not unduly interfere with the enforcement action. E. On request, the Incident Commander or a supervisor may inform the media, legal observers, crowd monitors, police liaison, and/or organizers about the nature of any criminal charges to be filed against arrestees, the location where arrestees are being taken, and the Department’s intent for arrestees to be cited out or booked at a custodial facility. F. The media, legal observers, crowd monitors, police liaison, and/or organizers shall never be targeted for dispersal or enforcement action because of their status.
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Oakland Police Department, 28 Oct 05
XII. Training
A. All OPD crowd control policies and procedures shall be set forth in a Crowd Control Training Bulletin. All other OPD orders and Training Bulletins will be reviewed to ensure consistency with the new policy and Training Bulletin.
B. All officers must receive training consistent with these new policies and procedures. All training on crowd control shall include substantial coverage of these Department policies. No officers shall use less-lethal weapons unless they have received the training required by Department policies.
C. Every OPD officer shall receive this training. Either independently or in conjunction with other scheduled training, each officer shall receive periodic instruction regarding the key elements of this policy. The Department will seek to improve its ability to manage crowd control events through study and evaluation of past incidents occurring in Oakland and other jurisdictions. Training in crowd management is crucial and shall be an ongoing process. All members of OPD shall be trained in these crowd control policies and procedures and shall then receive additional periodic crowd control refresher training thereafter. Crowd control training shall also become an integral part of the recruit academy curriculum.
D. All training called for in this section shall be documented with regard to individual officer attendance, dates of training, test scores or other evidence of successful completion of training, and identity of each instructor, and copies of both student curriculum materials and instructor curriculum materials shall be archived.
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