ADRMOP,CONSENT,REFSET-LB
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-03866-JCS

Anti Police-Terror Project et al v. City of Oakland et al Assigned to: Magistrate Judge Joseph C. Spero Referred to: Magistrate Judge Laurel Beeler (Settlement) Cause: 42:1983 Civil Rights Act

Date Filed: 06/11/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
ANTI POLICE-TERROR PROJECT

represented by Andrew Chan Kim Siegel, Yee, Brunner & Mehta 475 14th Street, Suite 500 Oakland, CA 94612 (510) 893-1200 Fax: (510) 444-6698 Email: chan.a.kim@gmail.com ATTORNEY TO BE NOTICED

Anne Butterfield Weills Siegel & Yee 499 - 14th Street Suite 220 Oakland, CA 94612 510-839-1200 Fax: 510-444-6698 Email: abweills@gmail.com ATTORNEY TO BE NOTICED

EmilyRose Naomi Johns Siegel, Yee, Brunner & Mehta 475 14th Street, Suite 500 Oakland, CA 94612 (510) 839-1200 Fax: (510) 444-6698 Email: emilyrose@siegelyee.com ATTORNEY TO BE NOTICED

Sonya Mehta Siegel Yee Brunner & Mehta 475 14th Street, Suite 500

Plaintiff COMMUNITY READY CORPS
Plaintiff AKIL RILEY

Oakland, CA 94612 510-839-1200 Fax: 510-444-6698 Email: sonyamehta@siegelyee.com ATTORNEY TO BE NOTICED
Walter Phillip Riley Attorney at Law 1440 Broadway, Suite 612 Oakland, CA 94612 510/451-1422 Fax: 510-451-0406 Email: WalterRiley@rrrandw.com ATTORNEY TO BE NOTICED
Daniel Mark Siegel Siegel, Yee, Brunner & Mehta 475 14th Street, Suite 500 Oakland, CA 94612 (510) 839-1200 Fax: (510) 444-6698 Email: dansiegel@siegelyee.com ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED

Plaintiff IAN McDONNELL
Plaintiff NICO NADA

EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel

Plaintiff AZIZE NGO
Plaintiff JENNIFER LI
Plaintiff ASHWIN RUPAN

(See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Sonya Mehta (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MARIA RAMIREZ
Plaintiff ANDREA COSTANZO
Plaintiff BRYANNA KELLY
Plaintiff

Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED

DANIEL SANCHEZ
Plaintiff JOHNATHAN FARMER
Plaintiff QIAOCHU ZHANG
Plaintiff SEAN CANADAY

represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address)

Plaintiff CELESTE WONG
Plaintiff MICHAEL COHEN
Plaintiff TARA ROSE

ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff TAYAH STEWART
Plaintiff AARON ROGACHEVSKY
Plaintiff CHRISTINA STEWART
Plaintiff LEILA MOTTLEY

represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MICHAEL COOPER
Plaintiff LINDSEY FILOWITZ
Plaintiff LINDSEY MORRIS

EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel

Plaintiff MELISSA MIYARA
Plaintiff NICOLE PULLER
Plaintiff KATHERINE SUGRUE
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED

KATIE JOHNSON
Plaintiff DANIELLE GAITO
V. Defendant CITY OF OAKLAND

represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Chan Kim (See above for address) ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns (See above for address) ATTORNEY TO BE NOTICED
Daniel Mark Siegel (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin P. McLaughlin Oakland City Attorney's Office One Frank H. Ogawa Plaza Sixth Floor Oakland, CA 94612 (510) 238-2961 Fax: (510) 238-6500 Email: kmclaughlin@oaklandcityattorney.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Alejandro Pereda Office of The Oakland City Attorney One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 (510) 235-6520

Defendant SUSAN E MANHEIMER
Defendant PATRICK GONZALEZ
Defendant MAXWELL D'ORSO
Defendant CASEY FOUGHT

Fax: (510) 238-6500 Email: dpereda@oaklandcityattorney.org TERMINATED: 12/23/2020
represented by Kevin P. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Alejandro Pereda (See above for address) TERMINATED: 12/23/2020
represented by Kevin P. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Pereda Deputy City Attorney One Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 510-238-4921 Fax: 510 238-6500 Email: dpereda@oaklandcityattorney.org TERMINATED: 12/23/2020
represented by Kevin P. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Pereda (See above for address) TERMINATED: 12/23/2020
represented by Kevin P. McLaughlin (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Pereda (See above for address) TERMINATED: 12/23/2020

Date Filed 06/11/2020
06/11/2020 06/12/2020
06/12/2020 06/12/2020

# Docket Text
1 COMPLAINT Verified Application for a Temporary Restraining Order and Class Action Complaint for Damages and Injunctive and Declaratory Relief against All Defendants ( Filing fee $ 400, receipt number 0971-14568643.). Filed byAZIZE NGO, AKIL RILEY, JENNIFER LI, COMMUNITY READY CORPS, ANTI POLICETERROR PROJECT, IAN McDONNELL, NICO NADA. (Attachments: # 1 Civil Cover Sheet)(Siegel, Daniel) (Filed on 6/11/2020) (Entered: 06/11/2020)
2 Proposed Summons. (Siegel, Daniel) (Filed on 6/11/2020) (Entered: 06/11/2020)
3 Case assigned to Magistrate Judge Joseph C. Spero.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 6/26/2020. (mbcS, COURT STAFF) (Filed on 6/12/2020) (Entered: 06/12/2020)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/4/2020. Initial Case Management Conference set for 9/11/2020 02:00 PM in San Francisco, Courtroom F, 15th Floor. (fabS, COURT STAFF) (Filed on 6/12/2020) (Entered: 06/12/2020)
5 Summons Issued as to CITY OF OAKLAND, MAXWELL D'ORSO, CASEY FOUGHT, PATRICK GONZALEZ, SUSAN E

06/15/2020 06/15/2020 06/15/2020 06/15/2020
06/15/2020
06/16/2020 06/17/2020 06/17/2020
06/17/2020

MANHEIMER. (fabS, COURT STAFF) (Filed on 6/12/2020) (Entered: 06/12/2020)
6 NOTICE of Appearance by David Alejandro Pereda (Pereda, David) (Filed on 6/15/2020) (Entered: 06/15/2020)
7 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by CITY OF OAKLAND.. (Pereda, David) (Filed on 6/15/2020) (Entered: 06/15/2020)
8 STIPULATION WITH PROPOSED ORDER re TRO Application filed by CITY OF OAKLAND. (Pereda, David) (Filed on 6/15/2020) (Entered: 06/15/2020)
9 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY.. (Johns, EmilyRose) (Filed on 6/15/2020) (Entered: 06/15/2020)
10 Order, signed 6/15/2020, by Chief Magistrate Judge Joseph C.
Spero granting 8 Stipulation Re: TRO. Plaintiff will supplement their TRO motion by 6/17/2020.(klhS, COURT STAFF) (Filed on 6/15/2020) (Entered: 06/16/2020)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by SUSAN E MANHEIMER.. (Pereda, David) (Filed on 6/16/2020) (Entered: 06/16/2020)
12 NOTICE of Appearance by Walter Phillip Riley (Riley, Walter) (Filed on 6/17/2020) (Entered: 06/17/2020)
13 MOTION for Temporary Restraining Order filed by ANTI POLICETERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY.
(Attachments: # 1 Proposed Order)(Kim, Andrew) (Filed on 6/17/2020) (Entered: 06/17/2020)
14 Declaration of Andrew Chan Kim in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

06/17/2020 06/17/2020 06/17/2020 06/17/2020 06/17/2020
06/17/2020
06/17/2020

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

15 Declaration of Sarah Belle Lin filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Kim, Andrew) (Filed on 6/17/2020) (Entered: 06/17/2020)

16 Declaration of Qiaochu Zhang filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Kim, Andrew) (Filed on 6/17/2020) (Entered: 06/17/2020)

17 Declaration of Niko Nada filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Kim, Andrew) (Filed on 6/17/2020) (Entered: 06/17/2020)
18 Declaration of Melissa Miyara filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Kim, Andrew) (Filed on 6/17/2020) (Entered: 06/17/2020)
19 Declaration of Liam Cain in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

20 Declaration of Leila Mottley in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

21 Declaration of Jennifer Li in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

06/17/2020 06/17/2020 06/17/2020 06/17/2020 06/17/2020

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

22 Declaration of Ian McDonnell in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

23 Declaration of Dr. Sporn in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

24 Declaration of Erica Hruby in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

25 Declaration of Christa Atherholt in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

26 Declaration of Cat Brooks in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

06/17/2020 06/17/2020 06/18/2020

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

27 Declaration of Anne Kelson in Support of 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Related

document(s) 13 06/17/2020)

) (Kim, Andrew) (Filed on 6/17/2020) (Entered:

28 Request for Judicial Notice re 13 MOTION for Temporary Restraining Order filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Attachments:

# 1 Declaration)(Related document(s) 13 on 6/17/2020) (Entered: 06/17/2020)

) (Kim, Andrew) (Filed

29 CLERKS NOTICE SETTING ZOOM HEARING. Zoom Scheduling Conference set for 6/18/2020 01:00 PM in San Francisco, Courtroom F, 15th Floor before Chief Magistrate Judge Joseph C. Spero.

For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/

This proceeding will be a Zoom video conferencing webinar.

PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.

Case participants may also receive an email invitation from the court with different information which should be followed.

All counsel, members of the public and press please click the link or use the information below to join the webinar:

https://canduscourts.zoomgov.com/j/1619260804?pwd=RE5qWDhGOTdWWTZU OFlOKzhNc3pjZz09

06/18/2020 06/18/2020

Meeting ID: 160 436 8507 Password: 108226
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.
Scheduling Conference set for 6/18/2020 01:00 PM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero. (This is a text-only entry generated by the court. There is no document associated with this entry.) (klhS, COURT STAFF) (Filed on 6/18/2020) (Entered: 06/18/2020)
30 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Zoom Scheduling Conference held on 6/18/2020. Parties to meet and confer to see if they can agree on a temporary TRO. Parties to advise the Court on the status by 4:00 PM. Status update shall be emailed to JCSPO@cand.uscourts.gov.
Response/Opposition to TRO due by 6/19/2020 at 1:00 PM. Preliminary Injunction or TRO Motion Hearing set for 7/2/2020 11:00 AM, via Zoom, in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
Total Time in Court: 36 M. Court Reporter: Raynee Mercado. Plaintiff Attorney: William Riley, Dan Siegel, Sonya Mehta, Elizabeth Johnson. Defendant Attorney: David Pereda. (klhS, COURT STAFF) (Date Filed: 6/18/2020) (Entered: 06/18/2020)
Set/Reset Deadlines as to 13 MOTION for Temporary Restraining Order . Motion Hearing, via Zoom, set for 7/2/2020 11:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 6/18/2020) (Entered: 06/18/2020)

06/18/2020 06/18/2020 06/18/2020 06/18/2020 06/19/2020 06/24/2020
06/25/2020 06/25/2020

31 Proposed Order Granting Temporary Restraining Order and Order to Show Cause by ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Siegel, Daniel) (Filed on 6/18/2020) (Entered: 06/18/2020)
32 Proposed Order by ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Siegel, Daniel) (Filed on 6/18/2020) (Entered: 06/18/2020)
33 ORDER GRANTING TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE. Signed by Judge Joseph C. Spero on June 18, 2020. (jcslc1S, COURT STAFF) (Filed on 6/18/2020) (Entered: 06/18/2020)
34 ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE (CORRECTED). Signed by Judge Joseph C. Spero on June 18, 2020. (jcslc1S, COURT STAFF) (Filed on 6/18/2020) (Entered: 06/18/2020)
35 NOTICE of Appearance by Sonya Mehta for Plaintiffs (Mehta, Sonya) (Filed on 6/19/2020) (Entered: 06/19/2020)
36 OPPOSITION/RESPONSE (re 13 MOTION for Temporary Restraining Order ) filed byCITY OF OAKLAND. (Attachments: # 1 Declaration Allison, # 2 Declaration Pereda, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit Q)(Pereda, David) (Filed on 6/24/2020) (Entered: 06/24/2020)
37 OPPOSITION/RESPONSE (re 13 MOTION for Temporary Restraining Order ) (ADDING URLS IN PLACE OF HYPERLINKS) filed byCITY OF OAKLAND. (Pereda, David) (Filed on 6/25/2020) (Entered: 06/25/2020)
38 Order for response to Defendants Opposition [docket no.37], to be filed by June 29, 2020 at 12:00 p.m. Signed by Judge Joseph C. Spero on June 25, 2020. (jcslc1S, COURT STAFF) (Filed on 6/25/2020) (Entered: 06/25/2020)

06/29/2020

39 CLERK'S NOTICE SETTING ZOOM HEARING as to 13
MOTION for Temporary Restraining Order/Preliminary Injunction . Motion Hearing set for 7/2/2020 11:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/
This proceeding will be a Zoom video conferencing webinar.
PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.
Case participants may also receive an email invitation from the court with different information which should be followed.
All counsel, members of the public and press please click the link or use the information below to join the webinar:
https://canduscourts.zoomgov.com/j/1619260804?pwd=RE5qWDhGOTdWWTZU OFlOKzhNc3pjZz09
Meeting ID: 161 926 0804 Password: 050855
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://w ww.cand.uscourts.gov/zoom/.
Motion for TRO (Preliminary Injunction) Hearing set for 7/2/2020 11:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate
Judge Joseph C. Spero. (Related documents(s) 13 )(klhS, COURT

06/29/2020 06/29/2020 07/02/2020

STAFF) (Filed on 6/29/2020) (This is a text-only entry generated by the court. There is no document associated with this entry.), (Entered: 06/29/2020)
40 REPLY (re 13 MOTION for Temporary Restraining Order ) filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Johns, EmilyRose) (Filed on 6/29/2020) (Entered: 06/29/2020)
41 Request for Judicial Notice re 40 Reply to Opposition/Response filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Attachments: # 1 Declaration of EmilyRose Johns in Support of Request for Judicial
Notice)(Related document(s) 40 ) (Johns, EmilyRose) (Filed on 6/29/2020) (Entered: 06/29/2020)
42 Minute Entry for Zoom proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 7/2/2020 re 13
MOTION for Temporary Restraining Order (Preliminary Injunction) filed by NICO NADA, ANTI POLICE-TERROR PROJECT, AZIZE NGO, AKIL RILEY, IAN McDONNELL, COMMUNITY READY CORPS, JENNIFER LI. Motion hearing Continued.
Motion for Temporary Restraining Order (Preliminary Injunction) Hearing specially set for 7/16/2020 10:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/
This proceeding will be a Zoom video conferencing webinar.
PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.

07/06/2020

Case participants may also receive an email invitation from the court with different information which should be followed.
All counsel, members of the public and press please click the link or use the information below to join the webinar:
https://canduscourts.zoomgov.com/j/1619260804?pwd=RE5qWDhGOTdWWT ZUOFlOKzhNc3pjZz09
Meeting ID: 161 926 0804 Password: 050855
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement Conference Motion for Temporary Restraining Order (Preliminary Injunction) Hearing specially set for 7/16/2020 10:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
Total Time in Court: 16 M. Court Reporter: Marla Knox. Plaintiff Attorney: Dan Siegel, Walter Riley, Andrew Kim, EmilyRose Johns. Defendant Attorney: David Pereda. (klhS, COURT STAFF) (Date Filed: 7/2/2020) (Entered: 07/02/2020)
43 Order Setting Settlement Conference before Magistrate Judge. Settlement Conference set for 7/14/2020 at 10:00 AM before Magistrate Judge Laurel Beeler. Signed by Judge Laurel Beeler on 07/06/2020. (ejkS, COURT STAFF) (Filed on 7/6/2020) (Entered: 07/06/2020)

07/07/2020 07/14/2020
07/15/2020

44 NOTICE of Appearance by Anne Butterfield Weills (Weills, Anne) (Filed on 7/7/2020) (Entered: 07/07/2020)
45 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held via Zoom on 7/14/2020. Settlement conference held. The City will circulate its draft by 10 a.m. tomorrow, Wednesday, July 15, 2020. The plaintiffs will send a reply as soon as possible, preferably by 3 p.m. on Thursday, July 16, and in any event no later than Friday, July 17, at 10:00 a.m. The attorneys will thereafter confer and will update the court by Monday, July 20, 2020 at 2 p.m. by email. The court will ask Judge Spero to kick the preliminary-injunction hearing by one week to allow this process. (Not Reported).
Plaintiffs' Attorneys: Walter Riley, Dan Siegel, Anne Weills, Sonya Mehta, EmilyRose Johns, and Chan Kim. Also appearing: Jane Brunner, James Burch, Katie Tertocha, Liz Johnson, Cat Brooks, Tur-Ha Ak, Akil Riley, Ian McDonnell, Niko Nada, and Jennifer Li. Defendants' Attorney: David Pereda. Also appearing: Brigid Martin, Chief Manheimer, Assistant Chief Allison, and Deputy Chief Holmgren. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 7/14/2020) (Entered: 07/14/2020)
46 CLERK'S NOTICE Continuing Motion Hearing as to 13
MOTION for Preliminary Injunction . The Court understands that the parties requested that the motion hearing be continued one week to July 23, 2020. Unfortunately, due to the Courts calendar, the court cannot hear this matter on July 23,2020, and therefore places the hearing on the next available date. Motion Hearing re-set for 7/28/2020 01:30 PM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/
This proceeding will be a Zoom video conferencing webinar.
PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.

07/26/2020 07/27/2020 07/27/2020

Case participants may also receive an email invitation from the court with different information which should be followed.

All counsel, members of the public and press please click the link or use the information below to join the webinar:

https://canduscourts.zoomgov.com/j/1619260804?pwd=RE5qWDhGOTdWWTZU OFlOKzhNc3pjZz09

Meeting ID: 161 926 0804 Password: 050855

Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://ww w.cand.uscourts.gov/zoom/.

Motion for Preliminary Injunction Hearing reset for 7/28/2020 01:30 PM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge

Joseph C. Spero. (Related documents(s) 13 )(klhS, COURT STAFF) (Filed on 7/15/2020) (This is a text-only entry generated by the court. There is no document associated with this entry.), (Entered: 07/15/2020)

47 STATUS REPORT Joint Report re Preliminary Injunction by CITY OF OAKLAND. (Pereda, David) (Filed on 7/26/2020) (Entered: 07/26/2020)

48 Brief re 47

Status Report Brief re Mutual Aid filed byANTI

POLICE-TERROR PROJECT. (Related document(s) 47 Daniel) (Filed on 7/27/2020) (Entered: 07/27/2020)

) (Siegel,

49 ORDER FOR RESPONSE TO PLAINTIFFS MEMORANDUM RE MUTUAL AID PARTNERS to be filed by 5:00 pm today.

07/27/2020 07/28/2020
07/29/2020 08/03/2020

Signed by Judge Joseph C. Spero on July 27, 2020. (jcslc1S, COURT STAFF) (Filed on 7/27/2020) (Entered: 07/27/2020)
50 OPPOSITION/RESPONSE (re 13 MOTION for Temporary Restraining Order ) Supplemental Brief filed byCITY OF OAKLAND. (Attachments: # 1 Exhibit S - Blue Book, # 2 Exhibit T - Red Book, # 3 Exhibit U - General Order re Mutual Aid)(Pereda, David) (Filed on 7/27/2020) (Entered: 07/27/2020)
51 Minute Entry for Zoom proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 7/28/2020 re 13
MOTION for Preliminary Injunction filed by NICO NADA, ANTI POLICE-TERROR PROJECT, AZIZE NGO, AKIL RILEY, IAN McDONNELL, COMMUNITY READY CORPS, JENNIFER LI. Motion Submitted.
Total Time in Court: 2 H. Court Reporter: Belle Ball. Plaintiff Attorney: Dan Siegel, Walter Riley, EmilyRose, Johns. Defendant Attorney: David Pereda. (klhS, COURT STAFF) (Date Filed: 7/28/2020) (Entered: 07/28/2020)
52 ORDER by Judge Joseph C. Spero granting in part 13 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A (OPD Crowd Control Policy)(jcslc1S, COURT STAFF) (Filed on 7/29/2020) (Entered: 07/29/2020)
53 DEFENDANTS' ANSWER to Complaint byCITY OF OAKLAND. (Pereda, David) (Filed on 8/3/2020) (Entered: 08/03/2020)

08/10/2020 08/21/2020

54 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Joseph C. Spero on August 10, 2020. (jcslc1S, COURT STAFF) (Filed on 8/10/2020) (Entered: 08/10/2020)
55 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Johns, EmilyRose) (Filed on 8/21/2020) (Entered: 08/21/2020)

08/21/2020

56 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Pereda, David) (Filed on 8/21/2020) (Entered: 08/21/2020)

09/03/2020
09/04/2020 09/14/2020

57 CLERKS NOTICE SETTING ZOOM HEARING. An Initial Case Management Conference is set for 9/11/2020 at 2:00 PM. This proceeding will be held via a Zoom webinar. Zoom Webinar ID: 161 926 0804 Password: 050855.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jcs
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (klhS, COURT STAFF) (Filed on 9/3/2020) (Entered: 09/03/2020)
58 JOINT CASE MANAGEMENT STATEMENT filed by CITY OF OAKLAND. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Pereda, David) (Filed on 9/4/2020) (Entered: 09/04/2020)
59 Minute Entry for Zoom proceedings held before Chief Magistrate Judge Joseph C. Spero: Initial Case Management Conference held on 9/11/2020.
Amended Pleadings due by 1/8/2021. Case Management Statement due by 11/6/2020. Close of Expert Discovery due by 10/29/2021. Close of Fact Discovery due by 8/27/2021. Designation of Experts due by 10/1/2021. Dispositive Motion and Daubert due by 11/19/2021. Motion for Class Certification due by 4/30/2021. Rebuttal Reports due by 10/15/2021. Responses/Opposition to Dispositive and Daubert Motions due by 12/17/2021. Replies to Dispositive and Daubert Motions due by 1/14/2022. . Final Pretrial Conference set for 5/13/2022 02:00 PM in San Francisco, Courtroom F, 15th Floor. Jury Selection set for 5/23/2022 08:30 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero. Jury Trial set for 5/23/2022 08:30 AM through 6/27/2022 (four

09/14/2020 09/16/2020
10/05/2020 10/06/2020

weeks) in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero.
Further Case Management Conference set for 11/13/2020 02:00 PM in San Francisco, Courtroom F, 15th Floor. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jcs
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
FTR Time: Not Reported. Plaintiff Attorney: Dan Siegel, EmilyRose Johns, Walter Riley. Defendant Attorney: Dav id Pereda. (klhS, COURT STAFF) (Date Filed: 9/14/2020) (Entered: 09/14/2020)
Set/Reset Hearing : This date was missed when setting jury trial dates. Jury Trial set for 5/24/2022 08:30 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)
60 CASE MANAGEMENT SCHEDULING ORDER: Motion and Daubert Hearing set for 2/11/2022 09:30 AM in San Francisco, Courtroom F, 15th Floor before Chief Magistrate Judge Joseph C. Spero. Signed by Chief Magistrate Judge Joseph C. Spero on 9/16/2020.
All dates were set from Minute Order 59 except for the Motion hearing date. (klhS, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)
61 STIPULATION WITH PROPOSED ORDER RE BRIEFING SCHEDULE filed by CITY OF OAKLAND. (Pereda, David) (Filed on 10/5/2020) (Entered: 10/05/2020)
62 Order, signed 10/6/2020, by Chief Magistrate Judge Joseph C. Spero granting 61 Stipulation. Motions pertaining to the

10/07/2020 10/07/2020 10/08/2020 10/12/2020
10/19/2020 10/19/2020

Preliminary Injunction due by 10/12/2020. Responses due by 10/19/2020. Court will set a hearing if needed. (klhS, COURT STAFF) (Filed on 10/6/2020) (Entered: 10/06/2020)

63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief filed by ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. Responses due by 10/19/2020. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration)(Kim, Andrew) (Filed on 10/7/2020) (Entered: 10/07/2020)

64 Declaration of Andrew Chan Kim in Support of 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief filed byANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Attachments: # 1 Exhibit A)(Related document(s) 63 ) (Kim, Andrew) (Filed on 10/7/2020) (Entered: 10/07/2020)

65 ERRATA by ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Attachments: # 1 Corrected Declaration)(Kim, Andrew) (Filed on 10/8/2020) (Entered: 10/08/2020)

66 MOTION Re Dkt. No. 52 re 52 Order on Motion for TRO filed by CITY OF OAKLAND. Responses due by 10/19/2020. (Attachments: # 1 Declaration Allison, # 2 Declaration Yu, # 3 Exhibit A (Yu), # 4 Exhibit B (Yu), # 5 Exhibit C (Yu), # 6 Exhibit D (Yu), # 7 Exhibit E (Yu), # 8 Exhibit F (Yu), # 9 Exhibit G (Yu), # 10 Declaration Pullen, # 11 Declaration Hinkle, # 12 Declaration Pereda, # 13 Exhibit A (Pereda))(Pereda, David) (Filed on 10/12/2020) (Entered: 10/12/2020)

67 OPPOSITION/RESPONSE (re 66

MOTION Re Dkt. No. 52 re 52

Order on Motion for TRO ) filed byANTI POLICE-TERROR PROJECT. (Attachments: # 1 Declaration Declaration of Sonya Z. Mehta)(Mehta, Sonya) (Filed on 10/19/2020) (Entered: 10/19/2020)

68 PREHEARING ORDER REGARDING MOTION TO ENFORCE AND CROSS-MOTION TO MODIFY PRELIMINARY INJUNCTION (DKT. 63, 66). Signed by Chief Magistrate Judge

10/19/2020 10/20/2020
10/20/2020 10/20/2020

Joseph C. Spero on October 19, 2020. (jcslc4, COURT STAFF) (Filed on 10/19/2020) (Entered: 10/19/2020)
69 OPPOSITION/RESPONSE (re 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief ) filed byCITY OF OAKLAND. (Attachments: # 1 Declaration Michael Beaver, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit F, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit L, # 11 Exhibit O)(Pereda, David) (Filed on 10/19/2020) (Entered: 10/19/2020)
Set/Reset Deadlines as to 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief , 66
MOTION Re Dkt. No. 52 re 52 Order on Motion for TRO . Motion Hearing set for 10/27/2020 03:00 PM by Videoconference Only before Magistrate Judge Joseph C. Spero. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jcs
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscou rts.gov/zoom/.
Motion Hearing set for 10/27/2020 03:00 PM by Videoconference Only before Chief Magistrate Judge Joseph C. Spero. See Order 68
(klhS, COURT STAFF) (Filed on 10/20/2020) (Entered: 10/20/2020)
70 STIPULATION WITH PROPOSED ORDER filed by ANTI POLICETERROR PROJECT, COMMUNITY READY CORPS, JENNIFER LI, IAN McDONNELL, NICO NADA, AZIZE NGO, AKIL RILEY. (Attachments: # 1 Exhibit A - First Amended Complaint)(Johns, EmilyRose) (Filed on 10/20/2020) (Entered: 10/20/2020)
71 AMENDED COMPLAINT FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELEIF against All Defendants. Filed byJENNIFER LI, COMMUNITY READY CORPS, ANTI POLICE-TERROR

10/20/2020 10/21/2020
10/22/2020 10/22/2020

PROJECT, AZIZE NGO, AKIL RILEY, IAN McDONNELL, NICO NADA, ASHWIN RUPAN, MARIA RAMIREZ, ANDREA COSTANZO, BRYANNA KELLY, DANIEL SANCHEZ, JOHNATHAN FARMER, QIAOCHU ZHANG, SEAN CANADAY, CELESTE WONG, MICHAEL COHEN, TARA ROSE, TAYAH STEWART, AARON ROGACHEVSKY, CHRISTINA STEWART, LEILA MOTTLEY, MICHAEL COOPER, LINDSEY FILOWITZ, LINDSEY MORRIS, MELISSA MIYARA, NICOLE PULLER, KATHERINE SUGRUE, KATIE JOHNSON, DANIELLE GAITO. (Siegel, Daniel) (Filed on 10/20/2020) (Entered: 10/20/2020)
72 Order by Chief Magistrate Judge Joseph C. Spero granting 70 Stipulation. Defendants shall respond to the 71
First Amended Complaint no later than November 19, 2020. (jcslc2S, COURT STAFF) (Filed on 10/20/2020) (Entered: 10/20/2020)
73 Proposed Order Modifying the Preliminary Injunction by ANTI POLICE-TERROR PROJECT, SEAN CANADAY, MICHAEL COHEN, COMMUNITY READY CORPS, MICHAEL COOPER, ANDREA COSTANZO, JOHNATHAN FARMER, LINDSEY FILOWITZ, DANIELLE GAITO, KATIE JOHNSON, BRYANNA KELLY, JENNIFER LI, MELISSA MIYARA, LINDSEY MORRIS, LEILA MOTTLEY, IAN McDONNELL, NICO NADA, AZIZE NGO, NICOLE PULLER, MARIA RAMIREZ, AKIL RILEY, AARON ROGACHEVSKY, TARA ROSE, ASHWIN RUPAN, DANIEL SANCHEZ, CHRISTINA STEWART, TAYAH STEWART, KATHERINE SUGRUE, CELESTE WONG, QIAOCHU ZHANG. (Kim, Andrew) (Filed on 10/21/2020) (Entered: 10/21/2020)
74 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by SEAN CANADAY, MICHAEL COHEN, MICHAEL COOPER, ANDREA COSTANZO, JOHNATHAN FARMER, LINDSEY FILOWITZ, DANIELLE GAITO, KATIE JOHNSON, BRYANNA KELLY, MELISSA MIYARA, LINDSEY MORRIS, LEILA MOTTLEY, NICOLE PULLER, MARIA RAMIREZ, AARON ROGACHEVSKY, TARA ROSE, ASHWIN RUPAN, DANIEL SANCHEZ, CHRISTINA STEWART, TAYAH STEWART, KATHERINE SUGRUE, CELESTE WONG, QIAOCHU ZHANG.. (Johns, EmilyRose) (Filed on 10/22/2020) (Entered: 10/22/2020)
75 STATUS REPORT by CITY OF OAKLAND. (Pereda, David) (Filed on 10/22/2020) (Entered: 10/22/2020)

10/24/2020 10/26/2020 10/27/2020
10/27/2020 10/27/2020

76 Second prehearing order regarding 63 motion to enforce. Defendants shall file inventory reports no later than October 26, 2020. Signed by Chief Magistrate Judge Joseph C. Spero on October 24, 2020. (jcslc2S, COURT STAFF) (Filed on 10/24/2020) (Entered: 10/24/2020)
77 OPPOSITION/RESPONSE (re 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief ) filed byCITY OF OAKLAND. (Attachments: # 1 Exhibit P)(Pereda, David) (Filed on 10/26/2020) (Entered: 10/26/2020)
78 Declaration of Meghan Schuttler in Support of 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief filed byANTI POLICE-TERROR PROJECT, SEAN CANADAY, MICHAEL COHEN, COMMUNITY READY CORPS, MICHAEL COOPER, ANDREA COSTANZO, JOHNATHAN FARMER, LINDSEY FILOWITZ, DANIELLE GAITO, KATIE JOHNSON, BRYANNA KELLY, JENNIFER LI, MELISSA MIYARA, LINDSEY MORRIS, LEILA MOTTLEY, IAN McDONNELL, NICO NADA, AZIZE NGO, NICOLE PULLER, MARIA RAMIREZ, AKIL RILEY, AARON ROGACHEVSKY, TARA ROSE, ASHWIN RUPAN, DANIEL SANCHEZ, CHRISTINA STEWART, TAYAH STEWART, KATHERINE SUGRUE, CELESTE WONG, QIAOCHU ZHANG. (Related document(s) 63 ) (Johns, EmilyRose) (Filed on 10/27/2020) (Entered: 10/27/2020)
79 ORDER striking 78 declaration as untimely. Signed by Judge Joseph C. Spero on October 27, 2020. (jcslc2S, COURT STAFF) (Filed on 10/27/2020) (Entered: 10/27/2020)
80 Minute Entry for Zoom proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 10/27/2020 re 63 MOTION Enforcement and Modification of the Preliminary Injunction and for Sanctions and Other Relief filed by NICO NADA, ANTI POLICE-TERROR PROJECT, AZIZE NGO, AKIL RILEY, IAN McDONNELL, COMMUNITY READY CORPS,
JENNIFER LI, 66 MOTION Re Dkt. No. 52 re 52 Order on Motion for TRO filed by CITY OF OAKLAND. The Court instructed the parties to meet and confer about modifications to the mutual aid provisions of the injunction and file any agreed upon changes no later than 5:00 PM on Wednesday, 10/28/2020.
Total Time in Court: 1 H 25 M. Court Reporter: Debra Pas. Plaintiff Attorney: Dan Siegel, Walter Riley, EmilyRose Johns.

10/28/2020 10/28/2020
10/31/2020 11/06/2020 11/09/2020

Defendant Attorney: David Pereda. (klhS, COURT STAFF) (Date Filed: 10/27/2020) (Entered: 10/27/2020)
81 STATUS REPORT Re Dkt. No. 80 by CITY OF OAKLAND. (Pereda, David) (Filed on 10/28/2020) (Entered: 10/28/2020)
82 AMENDED PRELIMINARY INJUNCTION by Chief Magistrate
Judge Joseph C. Spero, superseding 52 Preliminary
Injunction, in response to 63 , 66 cross-motions to modify or enforce. (jcslc2S, COURT STAFF) (Filed on 10/28/2020) (Additional attachment(s) added on 10/28/2020: # 1 Exhibit Training Bulletin III-G) (jcslc2S, COURT STAFF). (Entered: 10/28/2020)
83 ORDER by Judge Chief Magistrate Judge Joseph C. Spero denying 63 Plaintiffs Motion to Enforce and Modify Injunction and
granting in part and denying in part 66 Defendant City of Oakland's Motion to Modify Injunction. (jcslc4, COURT STAFF) (Filed on 10/31/2020) (Entered: 10/31/2020)
84 JOINT CASE MANAGEMENT STATEMENT filed by CITY OF OAKLAND. (Pereda, David) (Filed on 11/6/2020) (Entered: 11/06/2020)
85 CLERK'S NOTICE CONTINUING FURTHER CASE MANAGEMENT CONFERENCE AND SETTING ZOOM HEARING. Case Management Statement due by 1/8/2021. Further Case Management Conference set for 1/15/2021 02:00 PM in Videoconference Only. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jcs
Gen eral Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

11/19/2020 12/18/2020 12/22/2020 12/23/2020

(This is a text-only entry generated by the court. There is no document asso ciated with this entry.),.(klhS, COURT STAFF) (Filed on 11/9/2020) (Entered: 11/09/2020)
86 DEFENDANTS' ANSWER to Amended Complaint byCITY OF OAKLAND. (Pereda, David) (Filed on 11/19/2020) (Entered: 11/19/2020)
87 STIPULATION WITH PROPOSED ORDER (Stipulated Protective Order for Standard Litigation) filed by CITY OF OAKLAND. (Pereda, David) (Filed on 12/18/2020) (Entered: 12/18/2020)
88 Order, signed 12/22/2020, by Chief Magistrate Judge Joseph C. Spero granting 87 Stipulated Protective Order..(klhS, COURT STAFF) (Filed on 12/22/2020) (Entered: 12/22/2020)
89 NOTICE of Substitution of Counsel by Kevin P. McLaughlin NOTICE OF SUBSTITUTION (McLaughlin, Kevin) (Filed on 12/23/2020) (Entered: 12/23/2020)

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3:20-cv03866-JCS
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 Case 3:20-cv-03866 Document 1 Filed 06/11/20 Page 1 of 19

1 WALTER RILEY, SBN 95919 LAW OFFICE OF WALTER RILEY
2 1407 Webster Street, Suite 206 3 Oakland, CA 94612
Telephone: (510) 451-1422 4 Facsimile: (510) 451-0406
Email: walterriley@rrrandw.com 5

6

DAN SIEGEL, SBN 56400 ANNE BUTTERFIELD WEILLS, SBN 139845

7 JANE BRUNNER, SBN 135422 SONYA Z. MEHTA, SBN 294411

8 EMILYROSE JOHNS, SBN 294319

9

ANDREW CHAN KIM, SBN 315331 SIEGEL, YEE, BRUNNER & MEHTA

10 475 14th Street, Suite 500 Oakland, California 94612

11 Telephone: (510) 839-1200

12

Facsimile: (510) 444-6698 Email: danmsiegel@gmail.com;

13 abweills@gmail.com; janebrunner@hotmail.com;

14 sonyamehta@siegelyee.com;

15

emilyrose@siegelyee.com; chankim@siegelyee.com

16

JAMES DOUGLAS BURCH, SBN 293645 National Lawyers Guild 558 Capp Street San Francisco, CA 94110 Telephone: (415) 285-5067 x.104 Email: james_burch@nlgsf.org
Attorneys for Plaintiffs ANTI POLICE-TERROR PROJECT, COMMUNITY READY CORPS, AKIL RILEY, IAN McDONNELL, NICO NADA, AZIZE NGO, and JENNIFER LI

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19 ANTI POLICE-TERROR PROJECT,

) Case No.

20 COMMUNITY READY CORPS, AKIL RILEY, IAN McDONNELL, NICO NADA,

) ) VERIFIED APPLICATION FOR A

21 AZIZE NGO, and JENNIFER LI, on behalf ) TEMPORARY RESTRAINING ORDER

of themselves and similarly situated 22 individuals,

) AND CLASS ACTION COMPLAINT FOR ) DAMAGES AND INJUNCTIVE AND

23 24 vs.

Plaintiffs,

) DECLARATORY RELIEF ) ) Civil Rights

25 CITY OF OAKLAND, OPD Police Chief SUSAN E. MANHEIMER, OPD Sergeant
26 PATRICK GONZALES, OPD Officer 27 MAXWELL D’ORSO and OPD Officer
CASEY FOUGHT,
28 Defendants.

) )

DEMAND

FOR

A

JURY

TRIAL

)

)

)

)

)

)

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1

INTRODUCTION

2

1. Beginning May 29, 2020, following the graphic police murder of George Floyd,

3 who was recorded on video reciting the all too familiar and tragic plea “I can’t breathe” while a

4 white police officer kneeled on his neck, Bay Area residents took to the streets of Oakland to

5 protest this injustice and grieve the police murders of other Black and Brown people, including

6 Breonna Taylor, Ahmaud Arbury, and Tony McDade.

7

2. Defendant City of Oakland’s Police Department (“OPD”) used violent crowd

8 control tactics against these peaceful demonstrators. Over the course of several days, OPD

9 deployed constitutionally unlawful crowd control tactics including kettling, indiscriminately

10 launching of tear gas and flashbangs into crowds and at individuals, and shooting projectiles at

11 demonstrators. These demonstrators included many young Black and Brown people.

12

3. OPD unjustifiably declared peaceful protests “unlawful assemblies” to excuse

13 their violent tactics.

14

4. OPD knowingly placed these demonstrators in physical danger through

15 indiscriminate use of excessive force.

16

5. OPD also knowingly created a danger to public health by forcing demonstrators to

17 break social distancing rules that are currently in place due to the COVID-19 pandemic.

18

6. OPD targeted journalists and others simply recording its conduct. It targeted

19 medics who were seeking to give aid to those harmed.

20

7. OPD’s actions, moreover, were in violation of OPD policy and procedures and/or

21 caused by the omission of needed OPD policy and procedures.

22

8. OPD did not act alone. It called on its mutual aid network of police departments

23 from other municipalities to further carry out its constitutionally violative tactics.

24

9. On June 1, 2020, at around 5 p.m., the Alameda County Sheriff issued a curfew

25 order for the County of Alameda, set to begin at 8 p.m. that evening. The curfew was established

26 while approximately 15,000 students and residents peacefully marched and gathered in

27 Oakland.

28

10. OPD falsely claimed demonstrators were inciting violence, throwing Molotov

cocktails, assaulting officers, throwing rocks and bottles at officers, and destroying property to

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1 justify their use of force and to discourage participation by the public. No evidence exists to

2 support this. The curfew violated peoples’ First Amendment rights.

3

11. Demonstrators who otherwise intended to comply with the curfew were kettled

4 and arrested for being in violation of the curfew.

5

12. On March 14, 2003, the United States District Court approved a negotiated

6 settlement agreement placing the Oakland Police Department under the Court’s supervision

7 until such time as it had implemented a series of specified changes. Allen v. City of Oakland,

8 USDC ND Cal. No. 3:00-cv-04599. Those changes were designed in part to prevent the use of

9 excessive force by Oakland officers and to hold them accountable for violating people’s rights.

10 More than 17 years later, the Court’s supervision continues because Oakland has failed to

11 implement and sustain the required changes.

12

13. Plaintiffs bring this action to ask the Court to restrain the City of Oakland from

13 further violence and unconstitutional conduct.

14

JURISDICTION AND VENUE

15

14. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1331

16 (claims arising under the U.S. Constitution) and § 1343(a)(3) claims brought to address

17 deprivations, under color of state authority, of rights, privileges, and immunities secured by the

18 U.S. Constitution), and 42 U.S.C. § 1983.

19

15. Venue is proper in the United States District Court for the Northern District of

20 California pursuant to 28 U.S.C. § 1391(b)(1) because defendants are located in the Northern

21 District of California and § 1391(b)(2) because all of the acts and/or omissions complained of

22 herein occurred within the Northern District of California.

23

PARTIES

24

16. Plaintiff Anti Police-Terror Project (“APTP”) is a Black-led, multi-racial,

25 intergenerational coalition that seeks to build a replicable and sustainable model to eradicate

26 police terror in communities of color. APTP supports families surviving police terror in their

27 fight for justice, documenting police abuses and connecting impacted families and community

28 members with resources, legal referrals, and opportunities for healing. APTP began as a project

of the ONYX Organizing Committee. APTP was created following the police killing of Oscar

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1 Grant on January 1, 2009, and frequently organizes and leads protests against police

2 misconduct.

3

17. The actions of the OPD starting on May 29, 2020, discouraged and continues to

4 discourage members of the Oakland community from participating in lawful protest activities,

5 and chilled and continues to chill the exercise of free speech rights by members and supporters

6 of APTP.

7

18. Plaintiff Community Ready Corps (“CRC”) is an Oakland-based community

8 organization that combats white supremacy and actively builds and supports Black liberation.

9 CRC frequently organizes and leads protests against police misconduct.

10

19. The actions of the Oakland Police Department starting on May 29, 2020,

11 discouraged and continues to discourage members of the Oakland community from

12 participating in lawful protest activities, and chilled and continues to chill the exercise of free

13 speech rights by members and supporters of CRC.

14

20. Plaintiff Akil Riley is a resident of Oakland, California.

15

21. Plaintiff Ian McDonnell is a resident of Oakland, California.

16

22. Plaintiff Nico Nada is a resident of Oakland, California.

17

23. Plaintiff Azize Ngo is a resident of Oakland, California.

18

24. Plaintiff Jennifer Li is a resident of Oakland, California.

19

25. Defendant City of Oakland (“Oakland”) is a municipal corporation, duly organized

20 and existing under the laws of the State of California, and is the employer of the individual

21 Oakland defendants, as well as certain, to-be-identified Oakland employees. The City of

22 Oakland operated the OPD under its authority.

23

26. At all material times herein, the City of Oakland was responsible for supervising,

24 enacting, and enforcing the OPD’s conduct, policies, and practices; the absence of needed

25 policies and practices; and for the hiring, retention, supervision, and training of employees and

26 agents of the OPD, including such employees as defendants Police Chief Susan E. Manheimer

27 (“Manheimer”), Sergeant Patrick Gonzales (“Gonzales”), OPD Officer Maxwell D’Orso

28 (“D’Orso”), OPD Officer Casey Fought (“Fought”), and the to-be-identified OPD employees.

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1

27. Oakland was also responsible for the actions of the to-be-identified members of

2 their mutual aid network including all assisting officers from Contra Costa County Sheriff’s

3 Department, Alameda County Sheriff’s Department, San Mateo County Sheriff’s Department,

4 San Bruno Police Department, Redwood City Police Department, Menlo Park Police

5 Department and California State University Police Department.

6

28. At all material times herein, defendant Chief Manheimer was employed by

7 defendant Oakland as the Interim Chief of Police, and was acting within the course and scope of

8 that employment at such times. She is being sued in her individual and official capacities as the

9 OPD Interim Chief of Police. At all material times, Chief Manheimer was the final policy making

10 official for the OPD, ultimately responsible for all policies, procedures or omission of

11 procedures, supervision, and training of OPD employees.

12

29. At all material times herein, defendant Sergeant Gonzales was employed by

13 defendant Oakland as the Sergeant, and was acting within the course and scope of that

14 employment at such times. He is being sued in his individual and official capacities as the OPD

15 Sergeant. At all material times, Sergeant Gonzales was a supervisor, responsible for enforcing

16 all policies, procedures, supervision, and training of OPD employees.

17

30. At all material times herein, defendant Officer D’Orso was employed by defendant

18 Oakland as a Police Officer, and was acting within the course and scope of that employment at

19 such times. He is being sued in his individual and official capacities as an OPD Officer.

20

31. At all material times herein, defendant Officer Fought was employed by

21 defendant Oakland as a Police Officer, and was acting within the course and scope of that

22 employment at such times. He is being sued in his individual and official capacities as an OPD

23 Officer.

24

32. Plaintiffs allege that each of the defendants sued herein was wrongfully,

25 deliberately indifferent, negligently, and/or otherwise responsible in some manner for the

26 events and happenings as hereinafter described, and proximately caused injuries and damages

27 to plaintiffs.

28

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1

33. Plaintiffs allege that each of the defendants was at all material times an agent,

2 servant, employee, partner, joint venturer, co-conspirator, and/or alter ego of the remaining

3 defendants, and in doing the things hereinafter alleged, was acting within the course and scope

4 of that relationship.

5

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

6 defendants herein gave consent, aid, and assistance to each of the remaining defendants, and

7 ratified and/or authorized the acts or omissions of each defendant as alleged herein, except as

8 may hereinafter be otherwise, specifically alleged.

9

35. At all material times, each defendant was an integral participant, jointly and

10 fundamentally engaged in constitutionally violative, unlawful, and/or tortious activity, resulting

11 in the deprivation of plaintiffs’ constitutional rights and other actionable harm.

12

36. The acts and omissions of all Oakland defendants were at all material times

13 pursuant to the actual customs, policies, practices, and/ or procedures of Oakland and/or the

14 OPD. Stated alternatively, the acts and omissions of all Oakland defendants were at all material

15 times pursuant to the omission of customs, policies, practices, and/or procedures of Oakland

16 and/or the OPD.

17

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

18 ordinances, and regulations of the State of California.

19

STATEMENT OF FACTS

20

38. On Monday, May 25, 2020, a Minneapolis police officer brutally murdered George

21 Floyd, an unarmed and non-resisting Black man, while other police stood by and watched.

22

39. Innumerable people held peaceful protests across the world condemning police

23 brutality and systemic racism in the wake of the state sponsored and/or excused murders of

24 George Floyd, Breonna Taylor, Ahmaud Abrey, Tony McDade, and countless others.

25 Throughout Oakland, protesters honored the men and women killed by local law enforcement:

26 Oscar Grant III, Alan Blueford, Yuvette Henderson, Richard Perkins, Jr., Dujuan Armstrong,

27 Kayla Moore, Jody Mack Woodfox, Jessica Williams, Jesus Delgado Duarte, Jehad Eid,

28 Sahleem Tindle, and countless others.

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1

40. These constitutionally protected and essential protests occurred and continue

2 amid an unprecedented public health crisis. Novel coronavirus, COVID-19, has killed over

3 100,000 Americans and continues to spread. The virus is commonly understood to be

4 transmittable through exposure to respiratory droplets. Public health officials advised people to

5 wear masks if they were outside and to stay six feet apart. In an effort to mitigate the number of

6 people infected, the County of Alameda enforced a shelter-in-place order and social distancing

7 protocols.

8

41. In anticipation of the protest organized for the evening of May 29, 2020, lawyers

9 on behalf of the National Lawyers Guild, S.F. Bay Area Chapter, emailed Chief Manheimer,

10 Assistant Chief Darren Allison, Deputy Chiefs Leronne Armstrong and Roland Holmgren,

11 Mayor Libby Schaaf, and City Attorney Barbara Parker to remind them of Oakland and the

12 OPD’s legal obligation to comply with the OPD Crowd Control Policy and other policies.

13

PRE-CURFEW

14

42. At about 8 p.m. on May 29, 2020, demonstrators assembled at Broadway and

15 14th Street in Oakland to stage a peaceful protest. The demographic of demonstrators included

16 people of all different heritages and ages. Upon information and belief, the youngest person in

17 attendance was ten years old. Many demonstrators were high school students. The

18 demonstrators practiced social distancing by wearing masks. The protest was peaceful. Police

19 presence, however, increased. At all relevant times, no incident occurred justifying OPD to

20 categorize the protest as an unlawful assembly and to use force against the demonstrators.

21

43. At around 9:30 p.m., OPD wrongly declared the protest an unlawful assembly

22 through a loudspeaker. The announcement was inaudible and/or unclear.

23

44. Shortly thereafter and without warning, OPD threw a flashbang grenade towards

24 the protestors, hitting Andrea Marina in the leg. The flashbang grenade burned through her

25 jeans, causing her to sustain lacerations and bruising.

26

45. OPD then threw teargas canisters and additional flashbang grenades into the

27 crowd, and shot rubber bullets at the demonstrators. OPD also used stun guns and batons

28 against demonstrators.

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1

46. At around 10:15 p.m., OPD shot tear gas at Michael Cooper and other

2 demonstrators on Clay Street and 14th Street as they were marching and chanting, “Hands up,

3 Don’t shoot.”

4

47. The demonstrators panicked and tried to disperse.

5

48. Many demonstrators were forced to remove their masks due to the chemical

6 irritants clinging to the cloth and in the air, making it hard to breathe. Protesters coughed as a

7 result of the chemical irritants, which is a known reaction to their use. As a result, many

8 demonstrators were involuntarily made more vulnerable and susceptible to COVID-19

9 infections.

10

49. OPD targeted journalists. Journalists were detained and struck by projectiles

11 while wearing their press badges.

12

50. OPD targeted medics and demonstrators with clearly marked crosses on their

13 bags.

14

51. Tear gassed witnesses complained of eye and throat irritation and difficulty

15 breathing.

16

52. On or about May 30, 2020, at approximately 10 p.m., Daniel Sanchez was

17 standing at or near the corner of Broadway Street and 14th Street in Oakland. At that time and

18 place a police officer shot him in the eye with a rubber bullet. Upon information and belief the

19 officer was a member of the OPD.

20

53. Abner Hougie participated in the protest on the night of May 31, 2020. OPD

21 kettled him along with 200 or so other peaceful demonstrators. He observed OPD firing tear

22 gas and flashbang grenades without provocation or warning.

23

POST-CURFEW

24

54. On June 1, 2020, at approximately 4 p.m., a group of young people participated in

25 a peaceful march from Oakland Technical High School to the Oakland Police Administration

26 Building. An estimated 15,000 demonstrators participated, including many young Black and

27 Brown high school students.

28

55. At the onset, the organizers announced that the protest was peaceful and

explicitly called for “no destruction.”

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1

56. The organizers planned for the protest to end at the Oakland Police

2 Administration Building with a series of speeches. Due to obstruction by OPD, the protest

3 ended short of their final destination and instead concluded at Oscar Grant Plaza.

4

57. Nonetheless, a group of demonstrators continued from Oscar Grant Plaza towards

5 the Police Administration Building as planned. At Washington Street and 8th Street, the

6 demonstrators met a line of police outfitted in full riot gear. The OPD kettled the group via line

7 formations and by way of their vehicles, blocking opportunities for egress.

8

58. At approximately 5 p.m., demonstrators received notifications through their

9 phones that a curfew order was issued for the County of Alameda beginning at 8 p.m. The

10 notification lacked detail and caused confusion due to the timing and manner of its issuance.

11

59. Without warning and before the curfew went into effect, the OPD tear gassed,

12 threw flashbangs, and started shooting rubber bullets at the confined demonstrators.

13

60. Many demonstrators were shot in the back as they were fleeing the violent

14 measures employed by police, only to be impeded by police lines kettling them from all

15 directions.

16

61. The indiscriminate use of tear gas continued for an hour or so, forcing

17 demonstrators to intermittently remove their masks to breathe and to clean their faces, making

18 them more vulnerable and susceptible to COVID-19 infections.

19

62. OPD then arrested demonstrators and applied zip ties to their wrists in lieu of

20 handcuffs. The demonstrators were cited for breaking curfew, including those who otherwise

21 intended to comply but were trapped by OPD.

22

63. Natalie Cerullo attended the protest on June 1, 2020, and observed many minors

23 present at the march. She witnessed OPD officers brutalize a man who had his arms up and

24 OPD officers roughly drag a demonstrator who was kneeling. She heard defendant Sergeant

25 Gonzales tell officers to find any reason to cite them.

26

64. Erica Hruby attended the protest on June 1, 2020, and observed police fire

27 flashbang grenades and tear gas at peaceful demonstrators. She was later arrested on Broadway

28

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1 Street between 14th and 15th street and observed that OPD were not wearing masks despite

2 being in close contact with the demonstrators.

3

65. Emily Juneau was kettled with a group of protestors on June 1, 2020, at

4 Broadway Street and 8th Street around 7:30 p.m. She did not hear warnings from the OPD. She

5 observed an order given to OPD to disperse the demonstrators even though OPD had blocked

6 all exits from the area. She also heard Sergeant Gonzales tell officers to “find something to cite

7 them with.” She did not observe violent demonstrators, Molotov cocktails, or children or elderly

8 people among the group she was with.

9

66. Upon information and belief, OPD’s Crowd Management and Crowd Control

10 Policy does not authorize the use of “kettling” as a crowd control tactic. Kettling, which derives

11 from a German military term referring to an army surrounded by a much larger force, is a

12 police tactic whereby officers confine a large group of people to a designated space by

13 surrounding them on all sides so that there is no escape. By doing so, the officers effectively

14 control people’s movements.

15

67. Kettling leads to the unlawful seizure of people without a reasonable basis, creates

16 panic, elevates tensions, and chills speech. OPD accomplished this by forming police lines and

17 by driving vehicles towards demonstrators.

18

68. On both occasions, OPD kettled demonstrators before using dispersing tactics

19 such as tear gassing, flashbanging, and shooting rubber bullets at them.

20

69. This tactic denied demonstrators the ability to stay socially distant from each

21 other.

22

70. Oakland called on its mutual aid network for crowd control assistance at the

23 protests. On June 3, 2020, at a press conference, Chief Manheimer stated that OPD briefed,

24 instructed, and otherwise controlled the assisting officers, but refused to hold them accountable

25 to Oakland and OPD’s policies.

26

PLAINTIFF ALLEGATIONS

27

71. Members and/or supporters of plaintiffs APTP and CRC participated in the

28 protests on May 29, 2020 and June 1, 2020.

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1

72. Upon information and belief, members and/or supporters of APTP and CRC were

2 injured by the OPD tactics described above, including the use of tear gas, flashbang grenades,

3 and shooting projectiles at protestors. As a result of the police conduct described above,

4 members and supporters of APTP and CRC were discouraged from participating in protests and

5 from exercising their rights to free speech.

6

73. Plaintiff Akil Riley is 19 years old, grew up in Oakland, and now attends Howard

7 University. At the May 29, 2020, protest, a flashbang grenade hit him. The police shot teargas

8 and flashbangs indiscriminately into the crowd. OPD were attacking people even as they were

9 trying to comply with OPD. He helped organize the 15,000 person youth-led march on June 1,

10 2020.

11

74. Plaintiff Ian McDonnell participated in the peaceful protests in Oakland

12 beginning on May 29, 2020. At the protests, Oakland Police Department officers shot tear gas,

13 flashbangs, and rubber bullets at him and other demonstrators who were peacefully protesting.

14 He observed others, including journalists, get injured as a result. At the May 29, 2020, protest,

15 McDonnell displayed a cross on his bag, the universal symbol for medical assistance. He

16 subsequently removed it, however, because he witnessed OPD targeting medics and/or

17 demonstrators providing medical care. On June 1, 2020, Officer D’Orso used zip ties to

18 handcuff McDonnell before citing and releasing him for breaking curfew.

19

75. Plaintiff Nico Nada participated in the peaceful protests in Oakland beginning on

20 May 29, 2020. At the June 1 protest, OPD tear gassed demonstrators, forcing him and his

21 companions to continue up Broadway towards 14th Street. Officers outfitted in riot gear kettled

22 him and other demonstrators and demanded that they sit. After a police supervisor, name

23 unknown, who was not wearing riot gear, made a gesture, Officer Fought grabbed Nada and put

24 him in a chokehold. Officer Fought pushed Nada to the ground, got on top of him, and put his

25 knee into his back with all his weight before zip tying Nada’s hands together over his thumb.

26 Officer Fought then forcibly removed Nada by lifting him and separating him from his

27 companions. Nada complained about the tightness of the zip ties. He was cited and released for

28

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1 breaking curfew. Nada suffered physical injuries, including bruises and purple fingers,

2 requiring him to seek medical attention.

3

76. Plaintiff Azize Ngo participated in the June 1, 2020, youth-led protest beginning

4 at Oakland Technical High School and ending at City Hall. At the end of the protest, Ngo heard

5 a loud bang and saw a man with a bloody ear stating that he had been hit with a rubber bullet.

6 Ngo saw crowds of people who had been tear gassed. They were distraught by what they

7 experienced. OPD officers kettled Ngo and others and tackled kneeling people. Officers stood

8 over Ngo and others whom OPD had forced into lying in a pile on the ground with automatic

9 weapons. OPD officers conducted all this without masks or regard for social distancing.

10

77. Plaintiff Jennifer Li sustained injuries including swelling, bruising, soreness, and

11 blisters to her person when OPD threw a flashbang grenade and stinger ball directly into her

12 back as she was walking away from the June 1, 2020, protest. The flashbang exploded on her

13 back, causing her to stumble forward. She also experienced ringing in her ear and suffered a

14 perforation in her left ear drum.

15

78. At all material times the actions and omissions of each defendant were

16 intentional, and/or wanton, and/or willful, and/or reckless, and/or callous, and/or malicious,

17 and/or deliberately indifferent to plaintiffs’ rights, and/or grossly negligent, and/or negligent.

18

79. Plaintiffs suffered unnecessary pain and bruising, trauma, as well as ongoing

19 stress and anxiety, as a result of defendants’ tortious, wrongful, and constitutionally violative

20 conduct.

21

CLASS ALLEGATIONS

22

80. Plaintiffs bring this action on behalf of themselves and all others similarly situated

23 pursuant to Federal Rule of Civil Procedure 23(a) on the basis that there is a well-defined

24 community of interest in this litigation, the proposed class is easily ascertainable, and the

25 proposed class is quite numerous.

26

81. Plaintiffs seek to represent the following class: All demonstrators who

27 participated and/or intended to participate in the protests beginning on May 29, 2020 in

28 Oakland.

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1

82. Plaintiffs Akil Riley, Ian McDonnell, Nico Nada seek to represent the following

2 subclass: all demonstrators who inhaled tear gas at the protests in Oakland beginning on May

3 29, 2020. This subclass will be referred to as the “tear gassed demonstrators”.

4

83. Plaintiffs Akil Riley, Nico Nada, and Jennifer Li seek to represent the following

5 subclass: all demonstrators who sustained physical injuries from flashbang grenades and/or

6 other projectiles thrown at them at the protests in Oakland beginning on May 29, 2020. This

7 subclass will be referred to as the “projectile injured demonstrators”.

8

84. Plaintiffs Ian McDonnell, Nico Nada, Azize Ngo seek to represent the following

9 subclass: all demonstrators arrested and/or cited for a violation of the 8 p.m. curfew in effect on

10 June 1, 2020. This subclass will be referred to as the “cited demonstrators”.

11

85. Plaintiffs and the putative class were subjected to the constitutional and statutory

12 violations described in this complaint. Upon information and belief, the legal and factual issues

13 are common to the class and affect all class members.

14

86. Plaintiffs reserve the right to amend or modify the class and subclass descriptions

15 with greater specificity or further division into subclasses, as well as to limit the class or

16 subclasses to particular issues, as warranted.

17

Numerosity

18

87. The potential members of the class and of the subclasses as defined are so

19 numerous that joinder of all of them is impracticable. While the precise number of class

20 members has not been determined at this time, plaintiffs are informed and believe that the

21 class is comprised of more than 1000 individuals. The potential members of each subclass may

22 exceed 100 demonstrators.

23

Commonality and Predominance

24

88. There are questions of law and fact that are common to the class and subclasses

25 and predominate over individualized questions. These common questions of law and fact

26 include, without limitation:

27

a. Does the use of less-lethal weapons deployed by OPD infringe upon

28 demonstrators’ constitutional rights to be free of excessive force, to peaceably assemble, to

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1 freedom of expression, and freedom from viewpoint discrimination under the First

2 Amendment?

3

b. Has the City of Oakland manifested a failure to adequately train and

4 supervise its police officers and members of its mutual aid network to properly utilize tear gas,

5 flashbang grenades, rubber bullets and other non-lethal weapons?

6

c. Are there provisions omitted in the City of Oakland and OPD’s crowd

7 control policy and practices that are necessary to protect demonstrators’ constitutional rights?

8

d. Did the City of Oakland knowingly place demonstrators in a danger created

9 by its affirmative unlawful action?

10

e. Has the City of Oakland exhibited deliberate indifference to the

11 unconstitutional conduct complained of herein?

12

f. Did the City of Oakland falsely arrest residents for violating curfew?

13

Typicality

14

89. Named plaintiffs’ claims are typical of the claims of putative class members.

15 Plaintiffs and all members of the putative class sustained injuries and damages arising out of

16 and caused by defendants' course of conduct, which, as alleged herein, violates federal and

17 California law.

18

Adequacy of Representation

19

90. Plaintiffs adequately represent and protect the interests of class and subclass

20 members. Plaintiffs have no interests that are adverse to the class. Plaintiffs are similarly

21 situated to other class and subclass members. Counsel who represents plaintiffs are competent

22 and experienced in litigating civil rights class actions, police misconduct cases, and class actions

23 generally.

24

Superiority of Class Action

91. A class action is superior to other available means for the fair and efficient 25

adjudication of this controversy. Individual joinder of all class members is not practicable, and 26

questions of law and fact common to the class predominate over any questions affecting only 27

individual members of the class. Each member of the class has been damaged and is entitled to 28

recovery by reason of the unlawful policies and practices described herein. Class members are

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1 unlikely to otherwise obtain effective representation to ensure full enforcement of their rights

2 absent class certification.

3

92. Class action treatment will allow those similarly situated persons to litigate their

4 claims in the manner that is most efficient and economical for the parties and the judicial

5 system. Plaintiffs are unaware of any difficulties that are likely to be encountered in the

6 management of this action that would preclude its maintenance as a class action.

7

93. Further, plaintiffs seek a declaratory and injunctive relief, which is a remedy well-

8 suited for class action litigation.

9

FIRST CLAIM FOR RELIEF

First Amendment Violation

10

(By all plaintiffs against all defendants.)

11

(42 U.S.C. § 1983)

94. Plaintiffs and plaintiff class incorporate by reference paragraphs 1 through 93 12

above as though fully set forth herein. 13

95. By virtue of the foregoing, defendants violated plaintiffs’ rights to freedom of 14

15 speech, assembly, and association under the First Amendment to the United States

Constitution, when acting under color of law, they declared the peaceful protests unlawful 16

assemblies and kettled, tear gassed, flashbanged, and shot projectiles at plaintiffs. At the June 1 17

protest, a curfew order that was not narrowly tailored, and without sufficient notice, was issued 18

to further suppress the plaintiffs’ protected First Amendment activities including the right to 19

free speech and assembly. 20

96. Plaintiffs and plaintiff class suffered harm as a result of the defendants’ actions. 21

SECOND CLAIM FOR RELIEF

22

Fourth Amendment Excessive Force and Unlawful Seizure

23

(By all plaintiffs against all defendants.)

(42 U.S.C. § 1983)

24

97. Plaintiffs and plaintiff class incorporate by reference paragraphs 1 through 96

25 above as though fully set forth herein.

26

98. By virtue of the foregoing, defendants violated plaintiff’s rights to be free from

27 excessive force and unlawful seizure when acting under color of law, they kettled, tear gassed,

28 flashbanged, and shot projectiles at plaintiffs.

APTP v. City of Oakland, Case No. Verified Application for TRO and and Class Action Complaint- 15

Case 3:20-cv-03866 Document 1 Filed 06/11/20 Page 16 of 19

1

99. Plaintiffs suffered harm as a result of the defendants’ actions.

2

THIRD CLAIM FOR RELIEF

Fourteenth Amendment Substantive Due Process

3

(By all plaintiffs against all defendants.)

4

(42 U.S.C. § 1983)

100. Plaintiffs and plaintiff class incorporate by reference paragraphs 1 through 99 5

above as though fully set forth herein. 6
101. By virtue of the foregoing, defendants violated plaintiffs’ rights to substantive due 7
process, when, acting under color of law, they affirmatively and indiscriminately kettled, tear 8
gassed, flashbanged, and shot projectiles at plaintiffs with deliberate indifference to the 9
plaintiffs’ personal and physical safety during a pandemic. 10

102. Plaintiffs suffered harm as a result of the defendants’ actions. 11

FOURTH CLAIM FOR RELIEF

12

Monell and Supervisory Liability

13

(By all plaintiffs against defendants City of Oakland and Chief Manheimer.)

(42 U.S.C. § 1983)

14

103. Plaintiffs and plaintiff class incorporate by reference paragraphs 1 through 102

15 above as though fully set forth herein.

16

104. Oakland and Chief Manheimer have systematically failed to adequately select,

17 train, and supervise police officers under their control to prevent these officers from interfering

18 with people’s First Amendment rights to freedom of speech, assembly, and association and to

19 refrain from punishing people in retaliation for the exercise of these rights.

20

105. Oakland and Chief Manheimer have failed to adequately hold officers accountable

21 for such violations of people’s rights, thereby condoning and encouraging it.

22

106. Oakland and Chief Manheimer have systematically failed to adequately select,

23 train, and supervise police officers under their control to refrain from engaging in excessive

24 force against people exercising their First amendment rights.

25

107. Oakland and Chief Manheimer have failed to adequately hold officers accountable

26 for such violations of people’s rights, thereby condoning and encouraging it.

27

108. The failures of Oakland and Chief Manheimer as set forth herein constitute

28 unconstitutional customs and practices of Oakland.

APTP v. City of Oakland, Case No. Verified Application for TRO and and Class Action Complaint- 16

Case 3:20-cv-03866 Document 1 Filed 06/11/20 Page 17 of 19

1

DECLARATORY AND INJUNCTIVE RELIEF

2

109. Plaintiffs’ only means of securing complete and adequate relief is to also seek

3 declaratory and injunctive relief to provide plaintiffs substantial and complete protection from

4 defendants’ unlawful policies and practices. Remedies at law are inadequate. Plaintiffs

5 therefore seek both legal damages and equitable remedies in the form of declaratory and

6 injunctive relief against defendants.

7

DAMAGES

8

110. As a result of the actions of defendants, plaintiffs have been injured and have

9 suffered damages as follows:

10

a. They have had their rights to peaceably assemble and redress their

11 grievances irreparably interfered with;

12

b. They have suffered physical and psychological harm;

13

c. They have incurred expenses for medical care;

14

d. They have lost income; and

15

e. They have incurred property loss.

16

WHEREFORE, plaintiffs request that this Court grant them relief as follows:

17

1. A temporary restraining order barring the City of Oakland from the use of tear

18 gas, rubber bullets, flashbang grenades, and other non-lethal weapons;

19

2. A preliminary and permanent injunction barring defendants from engaging in the

20 unconstitutional conduct described herein and imposing appropriate remedial measures to

21 prevent the repetition of such conduct in the future;

22

3. Declaratory relief to determine that the acts and policies described herein

23 violated the rights of the plaintiffs and class members;

24

4. A determination that this action may proceed as a class action under Fed. R. Civ.

25 P. 23(b) of the Federal Rules of Civil Procedure;

26

5. Designation of plaintiffs as class representatives and designation of plaintiffs’

27 counsel as class counsel;

28

6. General damages, in an amount to be determined;

7. Special damages, in an amount to be determined;

APTP v. City of Oakland, Case No. Verified Application for TRO and and Class Action Complaint- 17

Case 3:20-cv-03866 Document 1 Filed 06/11/20 Page 18 of 19

1

8. Nominal damages;

2

9. Reasonable attorneys’ fees under 42 U.S.C. § 1988;

3

10. Costs of suit; and

4

11. Such other and further relief as the Court may deem proper.

5

DEMAND FOR TRIAL BY JURY

6 Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal Rules of Civil

7 Procedure.

8

9

Dated: June 11, 2020

10

SIEGEL, YEE, BRUNNER & MEHTA

11

By: __/s/ Dan Siegel______

12

Dan Siegel

13

Attorneys for Plaintiffs

ANTI POLICE-TERROR PROJECT,

14

COMMUNITY READY CORPS,

AKIL RILEY, IAN McDONNELL, NICO

15

NADA, AZIZE NGO, and JENNIFER LI

16

17

18

19

20

21

22

23

24

25

26

27

28

APTP v. City of Oakland, Case No. Verified Application for TRO and and Class Action Complaint- 18

Case 3:20-cv-03866 Document 1 Filed 06/11/20 Page 19 of 19

1

VERIFICATION

2

I, Akil Riley, declare as follows:

3 I am the plaintiff to this action. I have read the foregoing Verified Complaint and
4 know its contents. The matters stated in the Verified Complaint are true based on my
5

6 own knowledge, except where stated on information and belief, and as to such matters,

7 I believe it to be true.

8

I declare under penalty of perjury under the laws of the State of California that

9 the foregoing is true and correct and that this declaration was executed on June 11,
10 2020, at Oakland, California.
11

12

13

_____________________

14

Akil Riley

15

16

17

18

19

20

21

22

23

24

25

26

27

28

APTP v. City of Oakland, Case No.

.

Verified Application for a TRO and Class Action Complaint - 19

 
 Case 3:20-cv-03866-JCS Document 34 Filed 06/18/20 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

ANTI POLICE-TERROR PROJECT, et al.,

7

Case No. 20-cv-03866-JCS

Plaintiffs,

8

v.

ORDER GRANTING MOTION FOR

9

TEMPORARY RESTRAINING ORDER

CITY OF OAKLAND, et al., 10

AND ORDER TO SHOW CAUSE (CORRECTED)

Defendants.

11

12

13

This matter came before the Court on June 18, 2020 at 1 p.m., on Plaintiffs’

14 Application for a Temporary Restraining Order and Order to Show Cause. The parties

15 stipulated to a Temporary Restraining Order, which was entered by the Court. See

16 Docket No. 33. This Order corrects minor drafting errors found on page 2, lines 16-19 of

17 the stipulated Temporary Restraining Order; it makes no substantive changes to Docket

18 No. 33.
Based upon the agreement of the parties and good cause appearing, IT IS HEREBY 19
ORDERED, pending further hearing and the Court’s Order, that defendants City of 20
Oakland, Police Chief Susan Manheimer, et al., and all persons acting on their behalf and 21
under their supervision are forbidden from: 22
1. Using tear gas or any other chemical weapons against persons taking part in
23 a protest or demonstration.

24

2. Firing rubber bullets or similar projectiles at persons taking part in a

25

protest or demonstration.

26

3. Firing flash bang grenades at persons taking part in a protest or

27

demonstration.

28

Case 3:20-cv-03866-JCS Document 34 Filed 06/18/20 Page 2 of 2

United States District Court Northern District of California

1

The prohibitions of paragraphs 1 and 3 do not apply where, upon the decision of

2 the OPD Operations Commander or Incident Commander, it is determined that the use of

3 tear gas or any other chemical weapon or flash bang grenades is reasonably necessary to

4 protect the lives of people, protect people from serious bodily injury, or prevent the

5 imminent destruction of property at Oakland City Hall, the OPD Administration
6 Building, or the OPD Eastmont Mall Substation. Flash bang grenades may not be fired
directly at persons but must be fired only in a safe direction. To the fullest extent possible, 7
such use of tear gas or other chemical weapons and flash bang grenades is allowed only 8
after an audible warning of their use has been issued and after sufficient time to comply 9
has been granted. 10
In all actions in which the Oakland Police Department calls in police personnel 11
from other jurisdictions under mutual aid agreements, to the fullest extent possible OPD
12 personnel shall endeavor to assume front line positions between mutual aid officers and

13 demonstrators.

14

This Order shall remain in effect until further Order of the Court. This matter shall

15 be heard by the Court on July 2, 2020, on Plaintiffs’ motion for a preliminary injunction.

16

IT IS SO ORDERED.

17

18 Dated: June 18, 2020 19 20 21

______________________________________
JOSEPH C. SPERO Chief Magistrate Judge

22

23

24

25

26

27

28 2

 
 Case 3:20-cv-03866-JCS Document 52 Filed 07/29/20 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

ANTI POLICE-TERROR PROJECT, et al.,

7

Case No. 20-cv-03866-JCS

Plaintiffs,

8

v.

PRELIMINARY INJUNCTION

9

CITY OF OAKLAND, et al., 10

Re: Dkt. No. 13

Defendants.

11

12

13

Having considered the arguments and evidence submitted by the parties in connection with

14 the pending motion for a preliminary injunction, the parties’ agreement that a preliminary

15 injunction may issue and their agreement as to some of the terms of that injunction, and for the

16 reasons that will be set forth in a written order to follow the issuance of the instant Order, the

17 Court enters the following preliminary injunction. This Order provides that certain crowd control

18 tactics and munitions shall not be used except in very limited circumstances. This Order should

19 not be read as permission to use these tactics and munitions. The Court in this Order does not

20 conclude that the use of these tactics and munitions in the limited circumstances addressed below

21 is either lawful or advisable. Indeed, uses of force in specific instances, even if such force is not

22 expressly prohibited by this Order, may or may not be lawful depending upon the circumstances at

23 the time and existing precedent. The Court does not address that question at this time. The Court

24 only determines that use of these crowd control techniques outside of the limited circumstances

25 listed herein will be prohibited during the pendency of this action. As recognized in the Oakland

26 Police Department’s (“OPD”) Crowd Control Policy, it remains incumbent upon OPD to “uphold

27 the constitutional rights of free speech and assembly while relying on the minimum use of

28 physical force and authority required to address a crowd management or crowd control issue.”

Case 3:20-cv-03866-JCS Document 52 Filed 07/29/20 Page 2 of 5

United States District Court Northern District of California

1

It is hereby ORDERED that, unless and until this Order is modified or vacated by the

2 Court, Defendants City of Oakland (“the City”), OPD, Police Chief Susan E. Manheimer, and all

3 officers and employees of OPD, shall comply with the following restrictions during protests and

4 demonstrations in Oakland:

5 I. 6

TRAINING BULLETIN III-G Except as modified in this order, OPD shall adhere to Training Bulletin III-G, OPD Crowd

7

Control and Crowd Management (2013), attached as Exhibit A.

8 II. BADGES

9

Each OPD officer shall wear a badge, nameplate, or other device on the outside of his or

10

her uniform or on his or her helmet which bears the identification number or the name of

11

the officer, as required by Penal Code § 830.10.

12 III. BODY CAMERAS

13

All OPD officers shall utilize their Personal Digital Recording Device (“PDRD”) in

14

accordance with DGO I-15.1, Portable Video Management System. In addition, all OPD

15

officers deployed to demonstrations in Oakland shall have their PDRDs activated and

16

recording at all times while engaged in active policing activities. They shall also have their

17

PDRDs activated and recording when ordered to do so by a supervisor or commander.

18 IV. POLICE VEHICLES AND MOTORCYCLES

19

Motorcycles and police vehicles may not be used for crowd dispersal but may be used for

20

purposes of observation, visible deterrence, traffic control, transportation, and area control

21

during a crowd event.

22 V. TACTICS AND LESS LETHAL MUNITIONS

23

1. OPD officers are prohibited from using stinger grenades, wooden bullets, rubber or rubber-

24

coated bullets, pepper balls, or similar munitions.

25

2. Chemical agents (including orthochlorobenzalmalononitrile), flashbang grenades, and

26

foam-tipped projectiles shall be deployed only when (a) there is an imminent threat of

27

physical harm to a person or significant destruction of property; and (b) other techniques,

28

such as simultaneous arrests or police formations, have failed or are not reasonably likely

2

Case 3:20-cv-03866-JCS Document 52 Filed 07/29/20 Page 3 of 5

United States District Court Northern District of California

1

to mitigate the threat. The use of such munitions must be authorized by an OPD

2

Operations Commander or Incident Commander. None of these devices shall be deployed

3

on peaceful protestors or indiscriminately into a crowd. They may only be targeted at the

4

specific imminent threat justifying the deployment. Flash bang grenades and gas canisters

5

must be deployed at a safe distance from the crowd to minimize the risk that individuals

6

will be struck and injured by those devices. When chemical agents are used, only the

7

minimum amount of chemical agent necessary to obtain compliance may be used, in

8

accordance with OPD’s Department General Order K-3, USE OF FORCE.

9

3. Except where an immediate risk to public safety or of significant property damage makes it

10

impossible to do so, before any of the devices listed in Section V(2) are deployed to

11

disburse a crowd, OPD must have made at least two announcements to the crowd asking

12

members of the crowd to voluntarily disperse and informing them that, if they do not

13

disperse, they will be subject to arrest. These announcements must be made using

14

adequate sound amplification equipment in a manner that will ensure that they are audible

15

to the crowd and must identify at least two means of escape/egress. OPD must also allow

16

the crowd sufficient time to disperse after making these announcements before deploying

17

any of the devices in Section V(2).

18 VI. MUTUAL AID

19

The OPD Incident Commander shall be responsible for ensuring that the requirements

20

listed below are met by mutual aid agencies providing assistance to OPD under a mutual

21

aid agreement, unless exigent circumstances prevent the fulfillment of these obligations:

22

i. The Incident Commander shall ensure that the mutual aid agency has been briefed and is

23

in agreement with OPD’s Unity of Command structure under which only OPD

24

Commanders may authorize the use of less lethal munitions for crowd control and

25

dispersal;

26

ii. The Incident Commander shall ensure that the mutual aid agency has been briefed on

27

OPD’s policy on prohibited weapons and force;

28

iii. The Incident Commander shall ensure that the officers of the mutual aid agency who

3

Case 3:20-cv-03866-JCS Document 52 Filed 07/29/20 Page 4 of 5

United States District Court Northern District of California

1

provide assistance to OPD do not bring or use any weapons or force prohibited under

2

OPD’s policy;

3

iv. The Incident Commander shall ensure that the mutual aid agency has been provided a

4

copy of OPD’s Crowd Control Policy and Use of Force policies;

5

v. The Incident Commander shall ensure that officers of the mutual aid agency who

6

provide assistance to OPD are not assigned to front-line positions or used for crowd

7

intervention, control or dispersal unless there is a public safety emergency;

8

vi. The Incident Commander shall ensure that the officers of the mutual aid agency who

9

provide assistance to OPD complete required reports prior to being released from duty.

10

Agencies should provide the following documents/reports when they are applicable: Use of

11

force report, arrest report, crime report, injury report, equipment damage report and list of

12

responding personnel.

13 These provisions do not prohibit an OPD or mutual aid officer from taking reasonable action or

14 using reasonable or necessary force as allowed by law against an individual in self-defense or in

15 defense of another person or officer. OPD personnel shall endeavor to assume front line positions

16 between mutual aid officers and demonstrators.

17 VII. TRAINING

18

By November 1, 2020, OPD shall conduct a special training session for OPD Incident

19 Commanders, Operations Commanders, and Tango Team members concerning Training Bulletin

20 III-G and this agreement. Plaintiffs’ counsel may attend this training session. Further, Plaintiffs’

21 counsel may conduct part of the training subject to scope and time parameters agreed to in

22 advance by the parties.

23 VIII. FACE MASKS AND GLOVES

24

During the pendency of the state of emergency declared by either the President of the

25 United States, or the Governor of the State of California, due to the COVID-19 pandemic, all OPD

26 officers and employees deployed to demonstrations in Oakland must wear face masks and gloves

27 whenever they interact with members of the public.

28 4

Case 3:20-cv-03866-JCS Document 52 Filed 07/29/20 Page 5 of 5

United States District Court Northern District of California

1 IX. AFTER-ACTION REPORT

2

Subject to protective orders in this case, the Federal Rules of Civil Procedure, and the

3 Federal Rules of Evidence, the City shall produce the After-Action Report on the subject protests

4 — occurring from May 29, 2020 through June 1, 2020 —within 30 days of the entry of this Order.

5 X. 6

ENFORCEMENT If Plaintiffs contend that OPD violates Training Bulletin III-G or any of this Order’s

7 provisions at a future protest or demonstration, Plaintiffs may request a hearing to seek relief,

8 including a modification of this Order. Unless the parties agree to a different briefing schedule,

9 Defendants will have seventy-two hours to respond to Plaintiffs’ request.

10

IT IS SO ORDERED.

11 Dated: July 29, 2020

12

______________________________________

JOSEPH C. SPERO

13

Chief Magistrate Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

 
 Case 3:20-cv-03866-JCS Document 54 Filed 08/10/20 Page 1 of 33

United States District Court Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

ANTI POLICE-TERROR PROJECT, et al.,

9

Case No. 20-cv-03866-JCS

Plaintiffs,

10

v.

ORDER GRANTING IN PART AND

11

DENYING IN PART MOTION FOR

CITY OF OAKLAND, et al., 12

PRELIMINARY INJUNCTION

Defendants.

Re: Dkt. No. 13

13

14

15 I. 16

INTRODUCTION This case arises in the midst of ongoing demonstrations and protests sparked by the killing

17 of George Floyd by a Minneapolis police officer. In Oakland, these demonstrations began on May

18 29, 2020. Plaintiffs allege that starting on that date, and “[o]ver the course of several days, OPD 19 deployed constitutionally unlawful crowd control tactics including kettling,1 indiscriminately

20 launching . . . tear gas and flashbangs into crowds and at individuals, and shooting projectiles at

21 demonstrators.” According to Plaintiffs, OPD “did not act alone[,]” “call[ing] on its mutual aid

22 network of police departments from other municipalities to further carry out its constitutionally

23 violative tactics.” Plaintiffs filed this action on June 11, 2020, requesting that the Court enter a

24 temporary restraining order and then a preliminary injunction that would be in place during the

25 pendency of this case. Based on the agreement of the parties, the Court on June 18, 2020 entered a

26 temporary restraining order (“TRO”) limiting the crowd control tactics and munitions OPD would

27

28

1 According to Plaintiffs, “kettling” derives from a “military term referring to an army that is completely surrounded by a much larger force.” Complaint ¶ 66.

Case 3:20-cv-03866-JCS Document 54 Filed 08/10/20 Page 2 of 33

United States District Court Northern District of California

1 be permitted to use.

2

Although the parties subsequently negotiated in good faith in an effort to agree on the

3 terms of a preliminary injunction to replace the TRO, they were unable to resolve certain

4 fundamental disagreements. Accordingly, on July 29, 2020 the Court held a hearing to address

5 Plaintiffs’ request for a preliminary injunction and entered a preliminary injunction on the same

6 date. Dkt. No. 52 (“Preliminary Injunction”). In the Preliminary Injunction, the Court granted

7 some but not all of the injunctive relief requested by Plaintiffs. This Order sets forth the reasons

8 for granting in part and denying in part Plaintiffs’ preliminary injunction motion (“Motion”).2

9 II. BACKGROUND

10

A. Allegations in the Complaint

11

Plaintiff Anti Police-Terror Project (“APTP”) is a “Black-led, multi-racial,

12 intergenerational coalition that seeks to build a replicable and sustainable model to eradicate

13 police terror in communities of color.” Complaint ¶ 16. Plaintiff Community Ready Corps

14 (“CRC”) is “an Oakland-based community organization that combats white supremacy and

15 actively builds and supports Black liberation.” Id. ¶ 18. Both APTP and CRC “frequently

16 organize[ ] and lead[ ] protests against police misconduct.” Id. ¶¶ 16, 18. Plaintiffs allege that

17 “[m]embers and/or supporters of plaintiffs APTP and CRC participated in the protests on May 29,

18 2020 and June 1, 2020.” Id. ¶ 71. Plaintiffs Akil Riley, Ian McDonnell, Nico Nada, Azize Ngo

19 and Jennifer Li are residents of Oakland who allege that they participated in the protests that began

20 May 29, 2020 and were subjected to unconstitutional crowd control measures. Id. ¶¶ 20-24, 73-

21 79.

22

Plaintiffs bring a putative class action on behalf of “[a]ll demonstrators who participated

23 and/or intended to participate in the protests beginning on May 29, 2020 in Oakland,” id. ¶ 81,

24 against the City of Oakland, OPD Police Chief Susan Manheimer, OPD Sergeant Patrick

25 Gonzales, and OPD Officers Maxwell D’Orso and Casey Fought. Plaintiffs allege that the City of

26 Oakland was and is “responsible for supervising, enacting, and enforcing the OPD’s conduct,

27

28

2 The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).

2

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United States District Court Northern District of California

1 policies, and practices; the absence of needed policies and practices; and for the hiring, retention,

2 supervision, and training of employees and agents of the OPD, including” Chief Manheimer,

3 Sergeant Gonzales, Officers D’Orso and Fought, and others yet to be identified. Id. ¶ 26.

4 Plaintiffs further allege that the City of Oakland is responsible for the “actions of the to-be-

5 identified members of their mutual aid network including all assisting officers from Contra Costa

6 County Sheriff’s Department, Alameda County Sheriff’s Department, San Mateo County Sheriff’s

7 Department, San Bruno Police Department, Redwood City Police Department, Menlo Park Police

8 Department and California State University Police Department.” Id. ¶ 27.

9

In the Complaint, Plaintiffs allege that over the course of several days, OPD and its mutual

10 aid partners used a variety of impermissible tactics against peaceful protesters, often without

11 adequate warnings, causing physical injuries and trauma and “discourag[ing] members of the

12 Oakland community from participating in lawful protest activities.” See id. ¶¶ 17, 19 (alleging

13 that OPD crowd control tactics have had and continue to have a chilling effect on the participation

14 of APTP and CRC members and the Oakland community in peaceful protests); ¶¶ 42-51 (alleging

15 that on May 29, 2020 OPD declared a peaceful protest an unlawful assembly through a

16 loudspeaker that was inaudible, threw a flash bang grenade without warning that hit a protestor

17 and injured her, “threw tear gas canisters and additional flashbang grenades into the crowd, and

18 shot rubber bullets at the demonstrators,” “used stun guns and batons,” and targeted journalists

19 and medics); ¶ 52 (alleging that on May 30, 2020 near the corner of Broadway and 14th Street in

20 Oakland a police officer shot a protestor in the eye with a rubber bullet); ¶¶ 54-65 (alleging that

21 on June 1, 2020 a group of demonstrators who had participated in a peaceful protest that began at

22 the Oakland Technical High School were “kettled” at Washington Street and 8th Street in

23 Oakland, near the Police Administration Building; that their egress was blocked and that OPD

24 police officers “outfitted in full riot gear” “[w]ithout warning and before the curfew went into

25 effect, . . . tear gassed, threw flashbangs, and started shooting rubber bullets at the confined

26 demonstrators”; that “[m]any demonstrators were shot in the back as they were fleeing the

27 violent measures employed by police, only to be impeded by police lines kettling them from all

28 directions”; that the “indiscriminate use of tear gas continued for an hour or so, forcing 3

Case 3:20-cv-03866-JCS Document 54 Filed 08/10/20 Page 4 of 33

United States District Court Northern District of California

1 demonstrators to intermittently remove their masks to breathe and to clean their faces, making

2 them more vulnerable and susceptible to COVID-19 infections”; that “OPD then arrested

3 demonstrators and applied zip ties to their wrists in lieu of handcuffs” and cited demonstrators “for

4 breaking curfew, including those who otherwise intended to comply but were trapped by OPD”); ¶

5 64-65 (alleging that OPD officers were not wearing masks despite being in close contact with

6 demonstrators).

7

Plaintiffs allege that in using these tactics, OPD “knowingly created a danger to public

8 health by forcing demonstrators to break social distancing rules that are currently in place due to

9 the COVID-19” and “made [them] more vulnerable and susceptible to COVID-19 infections” by

10 using chemical irritants that forced the demonstrators to remove their masks and cough. Id. ¶¶ 5,

11 48. They also allege that while OPD justified these tactics by “claim[ing] demonstrators were

12 inciting violence, throwing Molotov cocktails, assaulting officers, throwing rocks and bottles at

13 officers, and destroying property,” these claims were false and there is “[n]o evidence” to support

14 them. Id. ¶ 10. Instead, they allege that this conduct was aimed at “discourag[ing] participation

15 by the public” in the demonstrations. Id.

16

Plaintiffs assert claims under 42 U.S.C. § 1983 based on alleged violations of the First

17 Amendment rights to freedom of speech and assembly; the Fourth Amendment right to be free

18 from the use of excessive force and unlawful seizure; and the Fourteenth Amendment right to

19 substantive due process. Id. ¶¶ 94-102. In addition, Plaintiffs bring a claim for supervisory

20 liability under Monell against the City of Oakland and Chief Manheim based on alleged

21 unconstitutional customs and practices, namely, failure to adequately supervise and train police

22 officers under their control or to hold them accountable for “interfering with people’s First

23 Amendment rights to freedom of speech, assembly, and association[,]” “punishing people in

24 retaliation for the exercise of” their First Amendment rights and “engaging in excessive force

25 against people exercising their First Amendment rights.” Id. ¶¶ 103-108.

26

27

28 4

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United States District Court Northern District of California

1

B. Events of May 29 through June 1, 2020

2

1. Plaintiffs’ Evidence

3

In support of their request for a temporary restraining order and preliminary injunction,

4 Plaintiffs submitted numerous sworn declarations describing encounters they and other protestors

5 had with police while they were participating in protests in downtown Oakland between May 29

6 and June 1, 2020. These declarations are summarized below.

7

a. May 29, 2020

8

Several declarations offered by Plaintiffs are by individuals who participated in a

9 demonstration that began at Frank Ogawa Plaza, at Broadway and 14th Street, on May 29, 2020 at

10 8:00 p.m. and proceeded to the Police Department Headquarters on Broadway and 7th Street. See

11 generally, Declaration of Ian McDonnell (“McDonnell Decl.”); Declaration of Anne Kelson

12 (“Kelson Decl.”); Declaration of Melissa Miyara (“Miyara Decl.”). Demonstrators held up signs

13 and chanted the names of victims of police violence. Kelson Decl. ¶ 9; Miyara Decl. ¶ 11. They

14 wore masks and attempted to maintain social distance. McDonnell Decl. ¶ 4; Kelson Decl. ¶ 24.

15 Despite what these individuals describe as a peaceful protest, see McDonnell Decl. ¶ 6; Kelson

16 Decl. ¶ 3; Miyara Decl. ¶ 11, OPD “kettled” the demonstrators by tear gassing parallel streets,

17 McDonnell Decl., ¶ 7, and began launching concussion grenades into the crowd. Kelson Decl. ¶¶

18 8, 10-11. OPD gave a dispersal order, giving demonstrators three minutes to disperse, Kelson

19 Decl. ¶ 13, but the announcement was difficult to hear because the loudspeaker was bad and OPD

20 was still launching concussion grenades into the crowd. Kelson Decl. ¶ 14; Miyara Decl. ¶¶ 12-14;

21 McDonnell Decl. ¶ 20. One demonstrator stated in her declaration that even though she was at the

22 front of the demonstration and could hear that an announcement was being made, she could not

23 make out the words of the announcement because the amplification was bad and people were

24 booing. Miyara Decl. ¶ 14. Another never heard any warning. McDonnell Decl. ¶ 20.

25

According to these declarants, police officers then began indiscriminately launching tear

26 gas and flashbang grenades and shooting projectiles at the demonstrators. McDonnell Decl. ¶ 8;

27 Cain Decl. ¶ 5; Kelson Decl. ¶¶ 11, 16; Miyara Decl. ¶¶ 17-18. One demonstrator who has asthma

28 did not bring an inhaler because she did not expect to be tear gassed; she described being 5

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1 “terrified” and unable to breath as she sprinted down Broadway. Miyara Decl. ¶¶ 18-41. Another

2 described the amount of tear gas used as “immense” and described the scene at the lobby of an

3 apartment building where she and other protestors went, “choking for air, applying water and

4 Maalox to wash away the tear gas.” Kelson Decl. ¶¶ 17-23. She states that she “would have likely

5 not attended the protest if [she] thought [she] would be tear gassed” id. ¶ 7, and that she is still

6 “shocked to the core.” Id. ¶ 18. Yet another stated that he was “traumatized” and that the

7 experience discouraged him from participating in protests the following day. McDonnell Decl. ¶

8 21.

9

Plaintiffs submitted video footage from this incident showing police officers throwing

10 flashbang grenades and tear gas towards the protestors. Kim Decl. ¶ 4(a)-(c), (f). Time stamps on

11 one of the videos indicate that this occurred before 9:24 p.m.

12

Plaintiffs also submitted evidence that at 10:28 p.m., a Black couple was forced by police

13 to be fully prone on the sidewalk at the corner of Franklin and 7th Streets. Kim Decl. ¶ 4(h). In

14 addition, they submitted video footage of police using tear gas and flash bang grenades at 10:28

15 p.m. and 11:08 p.m. on Broadway between 7th and 8th Streets, Kim Decl. ¶¶ 4(d) & (e), and again

16 shortly after midnight (on May 30) on 7th Street between Broadway and Franklin. Kim Decl. ¶

17 4(b).

18

b. May 30, 2020

19

Plaintiffs offer a declaration by a journalist who states that on May 30, 2020 she went to a

20 protest at Latham Square Plaza to “document events on [her] cell phone and DSLR camera.”

21 Declaration of Sarah Belle Lin (“Lin Decl.”) ¶¶ 5-6. According to Lin, she had a press pass and

22 was obviously carrying a camera. Id. at ¶ 7. Lin heard what sounded to her like rubber bullets

23 being shot by police and then was hit by one on her inner thigh, causing “intense pain.” Id. ¶¶ 13-

24 20; see also Lin Decl. ¶ 28 (picture of large bruise on Lin’s thigh). At the time she was hit, she

25 states, there was no one near her. Id. ¶ 19. A few minutes later, when she could stand, she went to

26 the sidewalk opposite Latham Square Plaza to recuperate. Id. ¶ 22. According to Lin, “[w]ithin

27 one minute, [she] was being roughly shoved by the police using their riot shields against [her].”

28 Id. ¶ 23. She yelled that she was a journalist and asked why she had been shot but received no 6

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1 response. Id. ¶¶ 25-26.

2

c. May 31, 2020

3

Plaintiffs offer a declaration by Plaintiff Ian McDonnell describing the police response to a

4 protest in which he participated that began as a car caravan at the Port of Oakland and culminated

5 in a demonstration at Frank Ogawa Plaza. See McDonnell Decl. ¶¶ 23-36. They have also

6 submitted video footage from that event. See Kim Decl. ¶ 4(i). According to McDonnell, the

7 crowd included many families with young children and the atmosphere was “chill” with “music

8 and nice speeches.” Id. ¶¶ 24-25. Even though everything had been peaceful, however, at mid-

9 day about 20 police vans full of police officers and tactical trucks drove “recklessly” into a crowd

10 of people. Id. ¶¶ 26- 27. McDonnell states that the police officers “jumped out of the vans and

11 started tear gassing the crowd” and throwing flash bang grenades without giving any warnings.

12 Id. ¶¶ 29-31. He states that he assisted some of the demonstrators who had been tear gassed

13 because he had brought eyewash and bandages with him. Id. ¶¶ 32-34.

14

d. June 1, 2020

15

Plaintiffs have offered the declarations of numerous individuals who participated in a

16 youth-organized protest that occurred on June 1, 2020, beginning at the Oakland Technical High

17 School at 4 p.m. See generally Declaration of Christa Artherholt (“Artherholt Decl.’);

18 Declaration of Erica Hruby (“Hruby Decl.”); Declaration of Jennifer Li (“Li Decl.”); McDonnell

19 Decl.; Declaration of Leila Mottley (“Mottley Decl.”); Declaration of Niko Nada (“Nada Decl.”);

20 Declaration of Qiaochu Zhang (“Zhang Decl.”). According to their accounts, at around 5 p.m., the

21 demonstrators received a notification through their phones advising them that the County of

22 Alameda issued a curfew order for 8 p.m. Hruby Decl. ¶ 5; Mottley Decl. ¶ 5. They state that

23 even before that curfew went into effect, however, OPD started kettling demonstrators.

24 McDonnell Decl. ¶¶ 45-46; Hruby Decl. ¶ 32. Demonstrators were wearing masks and attempting

25 to maintain social distance, but because of the kettling, they were unable to maintain social

26 distancing. Nada Decl. ¶ 8; Hruby Decl. ¶¶ 38-39; Artherholt Decl. ¶¶ 49-51. Many police

27 officers at the scene were not wearing masks. Zhang Decl. ¶ 5.

28

At some point OPD made an announcement, but the declarants state that it was muffled

7

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1 and hard to hear. Nada Decl. ¶ 9; Li Decl. ¶ 8; Mottley Decl. ¶¶ 10-11; Zhang Decl. ¶¶ 10, 21.

2 They recount that at around 7:40 p.m., OPD fired tear gas, flashbang grenades and projectiles at

3 the demonstrators. McDonnell Decl. ¶ 46; Nada Decl. ¶ 13; Li Decl. ¶¶ 6-9; Artherholt Decl. ¶¶

4 10-11; Hruby Decl. ¶ 9; Mottley Decl. ¶¶ 12-13. Participant Jennifer Li states in her declaration

5 that she was hit by a stinger ball and by a flashbang grenade, which exploded on her back and

6 perforated her eardrum, causing her to experience high levels of anxiety and to be scared to

7 participate in further protests. Li Decl. ¶¶ 9-14, 23-24. Plaintiffs have submitted video footage

8 that shows these tactics being used, including footage taken from a helicopter. Artherholt Decl. ¶

9 17; Kim Decl. ¶ 4(k); Hruby Decl. ¶¶ 10, 22; Zhang Decl. ¶ 10. According to one participant,

10 even after the majority of demonstrators left the area, OPD fired more tear gas into the small and

11 peaceful crowd of protestors. Artherholt Decl. ¶¶ 12-18. Artherholt submitted video footage of

12 this. Id. ¶ 25.

13

According to the accounts of the participants, demonstrators who had fled the earlier use of

14 tear gas were peacefully gathered at Frank Ogawa Plaza around 8:00 p.m. Artherholt Decl. ¶ 30;

15 Hruby Decl. ¶¶ 23-26. At that point, police made an announcement that there was a curfew and if

16 demonstrators did not leave, they would be arrested. Artherholt Decl. ¶ 32. They state that as

17 demonstrators attempted to comply and leave, police kettled them between 14th and 15th Streets

18 on Broadway. Artherholt Decl. ¶¶ 33-34; Hruby Decl. ¶¶ 28-32; see also Artherholt Decl. ¶ 40

19 (video footage). The Officers then arrested demonstrators by tackling them and/or touching them.

20 Kim Decl. ¶ 4(h); Hruby Decl. ¶¶ 32-37; Artherholt ¶¶ 33-47.

21

The declaration of Plaintiff Nada indicates that at some point during these events, he heard

22 demonstrators calling for help and that when he tried to pull an officer off a “helpless

23 demonstrator” he was placed in a chokehold by Officer Fought (a defendant in this case), who

24 pushed Nada to the ground and put his knee in Nada’s back using all his weight. Id. ¶¶ 26-29.

25 Nada further states that Officer Fought incorrectly used zip-ties on him that went over his thumb

26 and knuckle and were too tight, “roughhoused him,” and did not give Nada his badge number. Id.

27 ¶¶ 30-40.

28

During these arrests, the police were not wearing masks or facial coverings. McDonnell

8

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1 Decl. ¶¶ 56-59; Nada Decl. ¶¶ 26-27, 41; Hruby Decl. ¶¶ 35-36, 40. According to McDonnell, he

2 was arrested by Defendant Officer D’Orso; when McDonnell commented that Officer D’Orso was

3 not wearing any facial covering, Officer D’Orso laughed. McDonnell Decl. ¶ 58. The declarants

4 state that demonstrators were cited and released for breaking curfew. McDonnell Decl. ¶ 60; Nada

5 Decl. ¶ 39; Hruby Decl. ¶¶ 34, 37.

6

The declarants who described the events of June 1 stated that when these police tactics

7 were used the protestors were peaceful; many explicitly stated that they observed no illegal

8 activity, including anyone making or throwing Molotov cocktails. Zhang Decl. ¶ 3; Nada Decl.

9 ¶¶ 14-16, 42; Mottley Decl. ¶¶ 9-14 ; Li Decl. ¶¶ 6-7; McDonnell Decl. ¶ 62; Hruby Decl. ¶¶ 9,

10 15, 19, 26; Artherholt Decl. ¶¶ 6, 16, 54.

11

2. Defendants’ Evidence

12

Defendants have offered two declarations in support of their Opposition to the Motion, one

13 by their attorney, David Pereda, and another by Darren Allison, Interim Assistant Chief of Police

14 at OPD. Neither declaration specifically addresses the incidents described by Plaintiffs in their

15 complaint and in the declarations described above. However, Assistant Chief Allison has

16 submitted activity logs from the Oakland’s Emergency Operations Center covering the period

17 between May 29, 2020 and June 8, 2020. Declaration of Darren Allison (“Allison Decl.”) ¶ 16 &

18 Ex. H (“Activity Logs”). The Activity Logs contain reports by OPD officers of activity related to

19 demonstrations in Oakland, as well as reports of looting, Molotov cocktails being thrown and

20 other illegal activities. Below, the Court summarizes the activity described in the logs for the

21 relevant days:

22

May 29: At 8:58 p.m., there was a report that approximately 3,000 demonstrators were

23 congregating near the Oakland Police Headquarters at Broadway and 7th Street and that some

24 demonstrators were throwing bottles at officers. Allison Decl., Ex. H at 2. At 9:04 p.m., there was

25 a report that demonstrators at Broadway and 10th Street were throwing bottles and rocks at

26 officers. Id. At 9:21, there was a report that the group of demonstrators had grown to between

27 5,000 and 6,000, demonstrators and that demonstrators continued to throw rocks and bottles at

28 officers. Id. Officers then declared an unlawful assembly and made announcements for the group 9

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1 to disperse. Id. Around this time, there was a report that an additional group of 1,500 to 2,000

2 protestors approached the main group of demonstrators. Id. At 9:24 p.m., there was a report that

3 officers announced additional unlawful assembly orders in English and Spanish. Id. at 3. At 9:27

4 p.m., there was a report that officers deployed tear gas at Broadway and 7th Street and the

5 demonstrators scattered north and east. Id. At 9:33 p.m., there was a report that additional tear gas

6 was deployed and demonstrators returned to Frank Ogawa Plaza. Id. Officers received reports of

7 vandalism at 9:36 p.m. Id. At 9:42 p.m., there was a report that an OPD officer was injured by

8 fireworks. 3 Id. At 9:48 p.m., there was a report that two Federal Protective Service officers were

9 shot at the federal building at Jefferson Street and 12th Street. Id. At 9:57 p.m., there was a report

10 that approximately 1,000 demonstrators remained near Oakland Police Headquarters. Id. There

11 were reports of vandalism at City Hall at 10:07 p.m. There were reports that Molotov cocktails

12 were thrown at officers at Franklin and 7th Streets at 10:09 p.m. and at Broadway and 8th Streets

13 at 10:34 p.m. Id. Until approximately 1:00 a.m., there were continued reports of vandalism,

14 looting, and fires in Chinatown, City Center, and the Broadway and Telegraph corridors. Id. At

15 12:59 a.m., there was a report that one person had been taken into custody for assaulting an officer

16 with a vehicle. Id.

17

May 30: On May 30, 2020, there were reports of looting in Emeryville that began around

18 7:30 p.m. and continued until at least 10:00 p.m. Id. at 4-5. There was a report after 9:00 p.m.

19 that around 500 demonstrators were gathered near Henry J. Kaiser Park and Broadway and 14th

20 Street. Id. at 5. At 9:14 p.m., there was a report that demonstrators threw rocks at officers at

21 Broadway and 12th Street. Id. There was a report that a group of demonstrators was moving

22 southbound on Market Street around 9:40 p.m. Id. There was at least one report of looting near

23 Broadway and 17th Street at 9:48. Id. There was a report that in Emeryville, shots were fired near

24 the Decathlon at 9:55 p.m. Id. At 10:09 p.m., California Highway Patrol officers reported taking

25 rocks, bottles, and explosives at Market Street and 6th Street. Id. There were reports that at 10:15

26 p.m., demonstrators had moved into Frank Ogawa Plaza and at 10:28 p.m., some demonstrators

27

28

3At the July 29, 2020 hearing, Defendants’ counsel stated that he believed this injury occurred near Oakland Police Headquarters.

10

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1 began to throw bottles and rocks at officers. Id. at 6. There were reports that from approximately

2 10:30 to 11:45 p.m., groups of demonstrators dispersed in the streets surrounding Frank Ogawa

3 Plaza, and there were reports of fires, looting, and rock, brick, and bottle throwing in the area. Id.

4 There were reports that similar unrest along Telegraph and Broadway continued until

5 approximately 2:00 a.m. Id. at 6-8.

6

May 31: There were reports that between noon and 1:30 p.m., demonstrators gathered at

7 Lake Merritt for a protest that remained peaceful. Id. at 9. There were reports that around 1:40

8 p.m., a caravan of vehicles gathered in a parking lot near Middle Harbor Shoreline Park in the Port

9 of Oakland. Id. There were reports that this caravan grew to approximately 5,000 vehicles by

10 2:23 p.m. and remained peaceful. Id. There were reports that around 3:00 p.m., the caravan

11 moved into downtown Oakland and some groups separated from the main caravan and peacefully

12 gathered at Frank Ogawa Plaza. Id. at 10.4

13

June 1: There were reports that from 4:00 to 5:00 p.m., a crowd of demonstrators at

14 Oakland Technical High School grew from 2,000 to approximately 5,000 individuals. Id. at 15.

15 There were reports that at around 5:20 p.m., the crowd began marching towards Frank Ogawa

16 Plaza and that by 5:34 p.m., the group had grown to approximately 10,000. Id. There were

17 reports that by 6:00 p.m. the demonstrators had reached Frank Ogawa Plaza and by 6:30 p.m. the

18 crowd had grown to 15,000 individuals. Id. There were reports that at around 7:00 p.m. the

19 demonstrators numbered around 8,000, split into three groups, and at 7:16 p.m. 1,000

20 demonstrators approached the Police Headquarters. Id. There were reports that at 7:36 p.m., the

21 protestors near Police Headquarters began throwing rocks and bottles. Id. There were reports that

22 officers then made dispersal announcements and deployed tear gas. Id. There were reports that

23 the crowd dispersed in two directions and at around 7:45 p.m. there were reports of an individual

24
25 4 Later that day, there were reports that groups protested on I-580, near the Oakland Police Headquarters, and other parts of downtown Oakland. Id. There were reports that the
26 demonstrations were sometimes peaceful, but other times included violence and agitators. Id. In addition, there were reports of widespread looting and sporadic fires in Emeryville and Oakland
27 and reports of gunfire that evening. Id. at 11-12. All of these activities occurred after the events 28 and alleged police misconduct described by Plaintiffs in their complaint and declarations.
11

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1 with Molotov cocktails at Washington Street and 8th Street. Id. There were reports that by 8:02

2 p.m., around 200 demonstrators had retreated to Frank Ogawa Plaza and another 400

3 demonstrators had returned to Oakland Technical High School. Id. at 15-16. Over the next hour,

4 there were reports that officers detained demonstrators for curfew violations as groups generally

5 dispersed. Id. at 16. Police reported that by 9:05 p.m. they could not locate any large crowds. Id.

6 After this point, there were various reports of looting, gunshots, and violence, including one

7 Richmond police officer assaulted by a vehicle at Hilltop Mall in Richmond, that continued until

8 approximately 1:00 a.m. Id. at 16-17.

9

Assistant Chief Allison has also supplied the munitions logs for May 29, 2020 through

10 June 4, 2020, which OPD is required to maintain under its Crowd Control Policy, discussed

11 below. Allison Decl. ¶ 17 & Ex. I. These logs show that OPD used some of the listed items

12 during the period discussed above, but they do not contain information about the deployment of

13 munitions by mutual aid partners.

14

C. OPD Crowd Control Policy

15

OPD’s crowd management policy is set forth in Training Bulletin III-G. Allison Decl. ¶ 4

16 & Ex. A (OPD Crowd Control and Crowd Management Policy (hereinafter, “OPD Crowd Control

17 Policy”)). It is mandated under the settlement agreements and orders in Spalding v. City of

18 Oakland, No. 11-cv-02867 TEH (“Spalding”), United States District Court for the Northern

19 District of California and Campbell, v. City of Oakland, No. 11-cv-05498 JST (“Campbell”),

20 United States District Court for the Northern District of California. 5

21

22

5 In Spalding, the plaintiffs sued the City of Oakland and the County of Alameda, along with various individual defendants, for alleged constitutional violations based on mass arrests at a

23

protest against police misconduct related to the killing of Oscar Grant by a BART police officer. It was undisputed that the individuals had not been given warnings or an opportunity to disperse.

24

See Case No. 11-cv-05498 JST, Docket No. 86-1 (Spalding Settlement Agreement) at 1. In the Spalding Settlement Agreement, the parties agreed that the Oakland defendants would continue to

25

abide by the crowd control and crowd management policy adopted in two earlier cases, Coles v. City of Oakland, No. 03-cv-02961 TEH and Local 10 ILWU v. City of Oakland, No. 03-cv-02962

26

TEH (“the Coles/Local 10 Settlement Agreement”), which the Spalding plaintiffs alleged had been violated by OPD. Id. at7 & Ex. A thereto (Coles/Local 10 Settlement Agreement); see also 03-

27

cv-02961, Docket No. 41 (Coles/Local 10 Settlement Agreement). The parties in Spalding also agreed that the meet-and-confer requirement for amending the policy under the Coles/Local 10

28 Settlement Agreement would be satisfied if “[b]efore making any material change to the Crowd

12

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1

One of the stated policies that underpins the OPD Crowd Control Policy is to “[u]phold

2 constitutional rights of free speech and assembly while relying on the minimum use of physical

3 force and authority required to address a crowd management or crowd control issue.” Allison

4 Decl., Ex. A (Crowd Control Policy) § I. The Crowd Control Policy sets forth general principles

5 aimed at meeting this objective in the area of planning, deployment and policing of crowds. Id. §

6 III. These general principles include making efforts to establish and maintain contact and

7 communication with event or demonstration planners and considering the type of crowd involved

8 in making crowd control decisions. Id. § III.B. The Crowd Control Policy instructs that

9

10 Control Policy . . . or the associated Training Bulletin (OPD TB III-G, issued 28 Oct. 2005), or to

11

associated training outlines, the Oakland Police Department and its counsel will meet and confer with representatives of the National Lawyers Guild - SF Bay Area Chapter, and the ACLU of

12

Northern California, in a good faith effort to reach agreement on such changes.” Case No. 11-cv05498 JST, Docket No. 86-1 (Spalding Settlement Agreement) at 7.

13

In Campbell, the plaintiffs were participants in the Occupy Oakland protests in the fall of

14

2011 who alleged that OPD had violated their constitutional rights and the terms of the crowd control policy adopted in the Coles/Local 10 Settlement Agreement by using excessive force

15

against peaceful protestors. No. 11-cv-05498 JST, Docket No. 1 (Complaint) at 2. The settlement agreement in Campbell incorporated the provisions of the Spalding Settlement Agreement

16

addressing OPD’s crowd control policy. No. 11-cv-05498 JST, Docket No. 86. In particular, under the Campbell settlement agreement, the parties agreed that OPD would continue to abide by

17

the crowd control policy adopted under the Coles/Local 10 Settlement Agreement and that OPD would meet and confer with National Lawyers Guild and the ACLU before making any material

18

changes to the crowd control policy “and its associated Training Bulletin (OPD TB III-G, issued 27 Oct. 2005).” Id. at 5. The parties further stipulated “to the Court’s retention of jurisdiction to

19

enforce these terms for a four year period, extendable by an additional three years as provided in [the Spalding Settlement Agreement], Paragraph III.J.8, and request[ed] that the Court appoint

20

Magistrate Judge Laurel Beeler, who ha[d] overseen settlement in both this matter and Spalding, for resolution of any disputes, to facilitate the meet and confer process referenced above, and to

21

issue all appropriate orders concerning the Spalding Settlement Agreement and the implementation and enforcement thereof.” Id. at 5-6. Paragraph III.J.8 of the Spalding

22

Settlement Agreement provides that if there is a material breach of the settlement agreement within the initial four-year period, any party may move the court to extend the period of its

23

jurisdiction for an additional three years. There is nothing on the Campbell docket indicating that such an extension was ever requested.

24

The parties have also acknowledged that this Court has ongoing oversight of OPD’s

25

policies and conduct in Allen v. City of Oakland, 00-cv-4599 WHO. That case was brought by a group of African American plaintiffs against the City of Oakland and various individual police

26

officers who were members of a group that called themselves “the Riders” and who were assigned to patrol neighborhoods in West Oakland. The plaintiffs alleged that the Riders engaged in

27

repeated and serious civil rights violations against African American residents and that high-level officials were aware of this misconduct but took no remedial action. That case settled in 2003 but

28

the Court continues to supervise the enforcement of that agreement, holding a status conference as recently as May 27, 2020.

13

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1 “[o]rganized demonstrations in which some engage in coordinated, nonviolent civil disobedience

2 should be distinguished, to the extent possible, from crowds in which substantial numbers of

3 people are engaged in other types of unlawful acts.” Id. § III.B.7. Likewise, the policy provides

4 that “[i]t is essential to recognize that all members of a crowd of demonstrators are not the same.”

5 Id. § III.C.7. It recognizes that “[o]nce some members of a crowd become violent, the situation

6 often turns chaotic, and many individuals in the crowd who do not want to participate in the

7 violent or destructive acts may be blocked from leaving the scene because the crowd is so large or

8 because they are afraid they will move into a position of heightened danger.” Id. In that context,

9 the Crowd Control Policy instructs that “OPD shall seek to minimize the risk that force and arrests

10 may be directed at innocent persons.” Id.

11

Under the Crowd Control Policy, OPD uses the Incident Command System to plan for

12 demonstrations and manage crowds and acts of civil disobedience. Id. § III.A.3. “Decisions about

13 crowd dispersal and general strategies about crowd containment or crowd redirection, multiple

14 simultaneous arrests, planned individual arrests, or planned use of force [are to] be made at the

15 level of the Incident Commander or higher. Id. § III.B.1. However, this requirement does “not

16 preclude individual commanders, supervisors, and officers from defending themselves or others

17 from imminent danger when the delay in requesting permission to take action would increase the

18 risk of injury.” Id. In addition, the Watch Commander may fill the role of the Incident

19 Commander where it is necessary to respond to “spontaneous events,” at least until relieved by a

20 “ranking officer.” Id. § IV.A.1.

21

The Crowd Control Policy provides that “[s]ufficient resources to make multiple

22 simultaneous arrests should be available at demonstrations where such arrests are a reasonable

23 possibility.” Id. § III.C.1. It recognizes, though, that “this need must be balanced against the fact

24 that a large and visible police presence may have a chilling effect on the exercise of free speech

25 rights.” Id. Therefore, officers are instructed that they should arrive at the location before event

26 participants, if possible, and that “officers should be positioned at a reasonable distance from

27 the crowd to avoid a perception of intimidation.” Id. § III.C.2. The Crowd Control Policy also

28 requires “[e]ach officer [to] wear a badge, nameplate, or other device on the outside of his or 14

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1 her uniform or on his or her helmet which bears the identification number or the name of the

2 officer, as required by Penal Code § 830.10.” Id. § III.C.4. In addition, officers are required to

3 “activate their [Personal Digital Recording Devices] whenever taking any enforcement action

4 during a crowd control situation.” Id. § X.A.1.

5

The Crowd Control Policy enumerates “[p]ermissible crowd control and crowd dispersal

6 techniques.” See generally, id. § V. This section provides that “[t]he police may not disperse a

7 demonstration or crowd event before demonstrators have acted illegally or before the

8 demonstrators pose a clear and present danger of imminent violence,” at which point the assembly

9 may be declared unlawful. Id. § V.F.1. “When the only violation present is unlawful assembly,

10 the crowd should be given an opportunity to disperse rather than face arrest.” Id. § V.G.1. In

11 particular, before using crowd dispersal techniques, OPD must make “repeated announcements” to

12 the crowd, using “adequate amplification” “asking members of the crowd to voluntarily disperse

13 and informing them that, if they do not disperse, they will be subject to arrest.” Id. These

14 announcements should continue even after the commencement of the dispersal operation and

15 should “specify adequate egress or escape routes.” Id. Further, “[u]nless an immediate risk to

16 public safety exists or significant property damage is occurring, sufficient time [must] be allowed

17 for a crowd to comply with police commands before action is taken.” Id. § V.G.2.

18

If orders to disperse and arrest do not result in “voluntary movement of the crowd,” a

19 police formation may be moved into the view of protestors to create a “forceful presence.” Id. §

20 V.H.1. Officers may also use the technique of encirclement and arrest, encircling a portion of the

21 crowd and simultaneously arresting them. Id. § V.H.2. The Crowd Control Policy recognizes that

22 this approach “can be effective in dispersing the remaining crowd members wanting to avoid

23 arrest.” Id. § VII.A. The policy explains that where this approach is used, there must be probable

24 cause for each arrest and that “the only proper basis for a multiple simultaneous arrest of all the

25 individuals encircled at a demonstration is failure to disperse (Pen. Code §409), when the dispersal

26 was properly ordered based on the existence of an unlawful assembly and adequate notice and

27 opportunity to disperse has been given.” Id. § VII.A.5. Where such arrests are carried out, the

28 arrestees are to be placed in handcuffs. Id. § VII.C. Officers are to be “cognizant that flex-cuffs 15

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1 may tighten when arrestees’ hands swell or move, sometimes simply in response to pain from the

2 cuffs themselves” and “[w]hen arrestees complain of pain from overly tight flex cuffs]” they are

3 required to “examine the cuffs to ensure proper fit.” Id.

4

Officer may also use police formations and batons if a crowd refuses to disperse, so long as

5 officers follow the OPD’s policies governing use of force and use of batons and they do not

6 “intentionally strike a person with any baton to the head, neck, throat, kidneys, spine, or groin or

7 jab with force to the left armpit except when the person’s conduct is creating an immediate threat

8 of serious bodily injury or death to an officer or any other person.” Id. § V.H.3.

9

Further, the Crowd Control Policy allows for the use of non-hand held crowd control

10 chemical agents where “other techniques, such as encirclement and multiple simultaneous arrest or

11 police formations have failed or will not accomplish the policing goal as determined by the

12 Incident Commander.” Id. § V.H.4. The policy recognizes that such chemical agents can produce

13 “serious injuries or even death” and pose a particular threat to children, the elderly and people

14 with asthma. Id. Therefore, the policy requires that OPD use “the minimum amount of chemical

15 agent necessary to obtain compliance.” Id. In addition, such weapons may be used only with the

16 authorization of the Incident Commander except when there are “exigent circumstances,” when a

17 supervisor or commander may authorize the immediate use of chemical agents. Id.

18

Likewise, “[h]and-thrown chemical agents or pyrotechnic gas dispersal devices” may only

19 be used for crowd control when authorized by the Incident Commander, except when there are

20 exigent circumstances. Id. § V.H.5. a. Because such devices “present a risk of permanent loss of

21 hearing or serious bodily injury from shrapnel” they are to be “deployed to explode at a safe

22 distance from the crowd.” Id. § V.H.5. b. Further, they are not to be used “for crowd control

23 without first giving audible warnings to the crowd and additional reasonable time to disperse” id.

24 § V.H.5. c, and should be used only “if other techniques such as encirclement and mass arrest or

25 police formations have failed or will not accomplish the policing goal as determined by the

26 Incident Commander.” Id. § V.H.5.d.

27

The Crowd Control Policy also prohibits the use of certain types of weapons for crowd

28 control and crowd dispersal. Id. § VI. Among other things, canines and fire hoses may not be 16

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1 used for crowd control; nor may OPD uses horses against a non-violent crowd. Id. § VI.B - D.

2 Motorcycles and police vehicles may be used only for transportation, observation, traffic control

3 and visible deterrence; they may not be used for crowd dispersal. Id. § VI.E. The policy also

4 prohibits the use of wooden dowels and stinger grenades. Id. § VI.F.1. Direct Fired Specialty

5 Impact Less-Lethal Munitions (“SIM”) may “not be used for crowd management, crowd control or

6 crowd dispersal during demonstrations or crowd events” “even if some members of the crowd or

7 group are violent or disruptive.” Id. Direct Fired SIM may be used only against “a specific

8 individual who is engaging in conduct that poses an immediate threat of loss of life or serious

9 bodily injury to him or herself, officers, or the general public or who is engaging in substantial

10 destruction of property which creates an immediate risk to the lives or safety of other persons.”

11 Id. § VI.F.2.a. Even in that scenario, “Direct Fired SIM shall be used only when other means of

12 arrest are unsafe and when the individual can be targeted without endangering other crowd

13 members or bystanders.” Id.

14

The Crowd Control Policy also prohibits the use of “[a]erosol, hand-held, pressurized,

15 containerized chemical agents that emit a stream” from “being used for crowd management, crowd

16 control, or crowd dispersal during demonstrations or crowd events.” Id. § VI.H. Like Direct

17 Fired SIM, such chemical agents may only be used “against specific individuals who are engaged

18 in specific acts of serious unlawful conduct or who are actively resisting arrest.” Id. Further, they

19 may be used only by officers familiar with the training bulletin that addresses the use of Oleoresin

20 Capsicum (“OC”). Id. “Aerosol chemical agents shall not be used in a demonstration or crowd

21 situation or other civil disorders without the approval of a supervisor or command officer.” Id.

22

The Crowd Control Policy recognizes that “[f]or large demonstrations and mass

23 gatherings, OPD may be required to rely on Mutual Aid agencies for assistance.” Id. § IX. Such

24 requests are governed by the “protocols of the Mutual Aid Plan in accordance with the California

25 Emergency Services Act, commencing at Government Code Section 8550.” Id. In addition,

26 where mutual aid agencies provide assistance, the Incident Commander is “responsible for

27 ensuring to the extent possible that mutual aid agencies:

28

1. Are briefed and in agreement with OPD’s Unity of Command

17

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structure under which only OPD Commanders may authorize the

1

use of less lethal munitions for crowd control and dispersal;

2

2. Are briefed on OPD’s policy on prohibited weapons and force;

3

3. Do not bring or use any weapons or force that is prohibited under

OPD’s policy;

4

4. Are provided a copy of OPD’s Crowd Control Policy and Use of

5

Force policies;

6

5. Are not assigned to front-line positions or used for crowd

intervention, control or dispersal unless there is a public safety

7

emergency;

8

6. Complete required reports prior to being released from duty.

9 Id. However, “[t]hese provisions do not [prevent] an OPD or mutual aid officer from taking action

10 or using force against an individual in self-defense or in defense of another person or officer.” Id.

11 § IX.7.

12

Finally, the Crowd Control Policy provides for the completion of an after-action report

13 within thirty days of any incident in which: “1) Mutual Aid is requested; 2) An unlawful assembly

14 is declared; 3) Arrests are made for acts of civil disobedience; 4) Significant police resources are

15 used to control the event; or 5) Chemical agents or SIMS are used.” Id. § XI.C. The after-action

16 report must include a copy of the inventory log showing which less lethal munitions were checked

17 out and how many were used by which person during the relevant crowd control event(s). Id. §

18 VI.I.

19

According to Assistant Chief Allison, this after-action review is a “key part of OPD’s

20 crowd management policy.” Allison Decl. ¶ 6. He states that pursuant to this section there will

21 be “extensive review and investigations related to the recent mass protests,” “which will include,

22 among other things, ‘lessons learned and training opportunities, as well as an assessment of the

23 effectiveness and quality of the Operations Plans,’ pursuant to Training Bulletin III-G, and the

24 resulting After-Action Report.” Id. Assistant Chief Allison also states in his declaration that

25 there will be a review of each use of force pursuant to General Order K-4 and K-4.1 and an

26 Internal Affairs investigations of each complaint pursuant to General Order M-03. Allison Decl. ¶

27 6 & Exs. D (General Order K-4, Reporting & Investigating the Use of Force), E (General Order K-

28 4.1, Force Review Boards & Executive Force Review Boards), F (General Order M-03, 18

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1 Complaints Against Departmental Personnel or Procedures). He further anticipates that “the

2 Court’s Independent Monitoring Team in Allen v. City of Oakland will observe at least a sample of

3 these processes and resulting reports.” Id.

4

D. Involvement of Mutual Aid Partners

5

“The California Emergency Services Act [‘ESA’] recognizes and responds to a

6 fundamental role of government to provide broad state services in the event of emergencies

7 resulting from conditions of disaster or of extreme peril to life, property, and the resources of the

8 state. Its purpose is to protect and preserve health, safety, life, and property.” Martin v. Mun. Ct.,

9 148 Cal. App. 3d 693, 696 (1983) (citing Cal. Gov’t Code §§ 8550 et seq.). The ESA “provide[s]

10 for the rendering of mutual aid by the state government and all its departments and agencies and

11 by the political subdivisions” of State and establishes an Office of Emergency Services (“OES”)

12 within the Governor’s office to assist in the organization and assistance of emergency programs,

13 including California’s mutual aid plan. Cal. Gov’t. Code § 8550. Among other thing, the OES

14 publishes manuals for law enforcement agencies describing policies and procedures related to the

15 rendering of mutual aid. See. e.g., Dkt. Nos. 50-1 (Law Enforcement Mutual Aid Plan (2019 Ed.))

16 (“Blue Book”); 50-2 (Law Enforcement Guide for Emergency Operations (2019 Ed.) (“Red

17 Book”).

18

The ESA provides that “[u]nless otherwise expressly provided by the parties, the

19 responsible local official in whose jurisdiction an incident requiring mutual aid has occurred shall

20 remain in charge at such incident, including the direction of personnel and equipment provided

21 him through mutual aid.” Cal. Gov’t Code § 8618. Defendants have not argued or offered any

22 evidence suggesting that the agencies that offered mutual aid in connection with the events

23 described above have entered into any agreements with OPD or the City of Oakland that modifies

24 this general rule.

25

There is no dispute that OPD received “crowd control assistance” from its mutual aid

26 partners. See Complaint ¶ 70. According to Assistant Police Chief Allison, “[e]specially during

27 the first four days of protests—May 29, 2020 through June 1, 2020—the City relied heavily on

28 mutual aid from the Alameda County Sheriff’s Office, the California Highway Patrol, the U.S. 19

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1 Marshals Service, and police departments from across the Bay Area and state.” Allison Decl. ¶

2 11. Assistant Chief Allison states that “[t]he City has around 733 law enforcement personnel and

3 can deploy only so many of them at any given time. On nights such as May 29 and June 1, when

4 the OPD is at once attempting to facilitate mass protests and to respond to mass looting and

5 violence throughout the City, mutual aid is critical.” Id. A chart in his declaration reflects that on

6 the night of May 29, 2020, 215 OPD officers and 508 mutual aid officers were deployed. Id. ¶ 13.

7 On May 30, 2020, the number of OPD officers deployed had increased to 380 but they were still

8 outnumbered by mutual aid officers, whose numbers had also increased, to 550. Id. On May 31

9 and June 1, OPD maintained the number of officers deployed at 380 while the number of mutual

10 aid officers dropped to 200 (May 31) and 222 (June 1). Id.

11

Assistant Chief Allison states that “OPD attempts to deploy its officers on the front lines

12 when managing crowds along with mutual aid within the City [but that] [t]his becomes

13 challenging when there are multiple events happening at once, in various locations, and

14 circumstances are rapidly changing.” Id. ¶ 12. Further, Defendants concede that “[d]uring these

15 days, mutual aid partners reported that among other force options, they deployed CS blasts, Sting

16 balls, smoke, and projectiles.” Id. ¶ 14.

17

According to Assistant Chief Allison, two of OPD’s “[m]utual aid partners have informed

18 the City that if crowd control techniques—including chemical agents—are prohibited, these

19 partners will no longer provide mutual aid.” Id. ¶ 15 & Ex. K (emails from Alameda County

20 Sheriff and U.S. Marshal Donald O’Keefe in response to a letter that was sent to the mayor of

21 Oakland, the City Council and Chief Manheimer urging OPD to “immediately halt the use of tear

22 gas for crowd control.”).

23

Plaintiffs allege that on June 3, 2020, at a press conference, Chief Manheimer “stated that

24 OPD briefed, instructed, and otherwise controlled the assisting officers, but refused to hold them

25 accountable to Oakland and OPD’s policies.” Complaint ¶ 70.

26

E. Health Risks Associated With OPD Crowd Control Tactics Related to COVID-

19 Pandemic 27

Plaintiffs have submitted the declaration of a specialist in pulmonary disease, Dr. Peter

28

20

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1 Sporn, addressing the health risks associated with the use of chemical agents, including tear gas

2 and pepper spray. See Declaration of Dr. Peter Sporn in Support of Memorandum of Points and

3 Authorities in Support of Plaintiffs’ Application for a Temporary Restraining Order and/or Order

4 to Show Cause and Preliminary Injunction (“Sporn Decl.”). According to Dr. Sporn, “[w]hile it

5 has been claimed that [tear gas, containing chloroacetophenone (CN) or chlorobenzylidene

6 malonontrile (CS), and pepper spray or pepper balls, containing oleoresin capsicum (OC)] produce

7 only temporary irritation and discomfort, recent studies document that they can cause serious and

8 long-lasting lung problems, skin burns, eye injuries and even death.” Sporn Decl. ¶ 14. In

9 particular, “[a] recent review [that] compiled the results of 31 studies including 5,131 people

10 who suffered 9,261 injuries from exposure to tear gas or pepper spray (Haar et al, BMC

11 Public Health 17:831, 20 17) [showed that] 8. 7% of the injuries were severe and required

12 professional medical attention, 17% were moderate, and 74% were mild, 58 of the individuals

13 suffered permanent disability and two died of injuries due to the chemical agents.” Id. ¶ 15.

14 Furthermore, studies show that “pepper spray is not less harmful or less potentially lethal than tear

15 gas.” Id. ¶ 16 (citing Toprak, et al., Journal of Forensic and Legal Medicine 29:36-42, 2015)

16 (autopsies performed on 10 individuals who died as a result of acute exposure to riot control

17 agents showed that the most common mode of death was respiratory failure; that three died after

18 exposure to combinations of tear gas and pepper spray, and that seven died following exposure to

19 pepper spray alone).

20

Dr. Sporn states that tear gas and pepper spray cause acute respiratory symptoms, posing a

21 particular danger to individuals with asthma. Id. ¶ 17. He notes that 8% of the overall U.S

22 population suffers from asthma and that asthma is “more common and often more

23 severe in African Americans than the majority population in the U.S.” Id. Consequently,

24 “launching tear gas or pepper spray at large crowds inevitably places dozens or hundreds of

25 individuals with asthma and other respiratory conditions in grave danger” and “places [B]lack

26 individuals in targeted crowds at especially high risk of respiratory harm.” Id.

27

Further, the use of tear gas and pepper spray is particularly dangerous during the COVID-

28 19 pandemic, according to Dr. Sporn. He explains: 21

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Because exposure to tear gas and pepper causes severe irritation of

1

the eyes, nose, mouth and respiratory system, exposed individuals rub

their eyes, hypersalivate, cough uncontrollably, and hyperventilate.

2

This typically forces people to take off the masks they are wearing in

order to be able to breathe. By damaging the respiratory epithelium,

3

tear gas and pepper spray increase susceptibility to respiratory

infection. All of this greatly increases the risk of disseminating the

4

novel corona virus and of contracting COVID-19. Because African

Americans and Latinx individuals experience disproportionately high

5

rates of respiratory failure and death due to COVID-19 (Yancy,

JAMA 323:1891-2, 2020), use of tear gas and pepper spray further

6

increases the risk of serious harm to the health of individuals in these

groups. 7

8 Id. ¶ 18. It is for this reason that the American Thoracic Society issued a statement on June 11,

9 2020 “stating that the use of tear gas and similar chemical agents by law enforcement during the

10 COVID-19 pandemic is irresponsible and calling for a moratorium on their use.” Id. ¶ 20.6

11 12 6 The June 11, 2020 Statement of the American Thoracic Society states as follows:

13

June 11, 2020 -- The American Thoracic Society calls for a moratorium on the use of tear gas and other chemical agents deployed by law enforcement against protestors participating in

14 demonstrations, including current campaigns sparked by the death of George Floyd.

15

“The use of chemical crowd control agents is outlawed in the time of war. They cause significant short- and long-term respiratory health injury and likely propagate the spread of viral illnesses,

16 including COVID-19,” said ATS President Juan C. Celedón, MD, DrPH, ATSF.

17

“Recent research calls into question the assumed safety of tear gas such as 2chlorobenzalmalononitrile (CS), and the highly concentrated pepper oil used in exploding shells

18

and grenades,” said Sven-Eric Jordt, PhD, a leading researcher in tear gas and related lung injury. Those studies have identified chronic bronchitis, compromised lung function, and acute lung

19 injury (in military recruits) as consequences of tear gas exposure.

20

The airborne nature of tear gas also makes it impossible to use in a manner that doesn’t endanger uninvolved persons such as innocent bystanders and the media. Tear gas is also a concern to

21

medical personnel exposed when treating protestors, since the agents can contaminate clothing and medical equipment.

22 In addition to questions about safety, the ATS is concerned that exposure to tear gas may affect

23

COVID-19 transmission. A tear gas- exposed person with asymptomatic COVID-19 would be unable to maintain a safe distance and is likely to spread the virus much more efficiently to

24

bystanders, increasing the risk of infection. Protective masks would have to be discarded due to tear gas contamination, further increasing risks of spreading or contracting the infection.

25 Outcomes of a study by the U.S. military are a clear warning sign. Recruits exposed to CS tear gas

26

in training just once had a strongly increased likelihood to develop respiratory illnesses such as influenza, pneumonia, or bronchitis, conditions often caused by viral infections. This may also

27

apply to COVID-19. Reactive chemicals such as 2-chlorobenzalmalononitrile, and the combustion products and solvents produced by tear gas shells and grenades, are known to degrade the lungs’

28 antiviral defenses. COVID-19 patients often report loss of their sense of smell. COVID-19 patients

22

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1

Defendants do not directly challenge Dr. Sporn’s opinions about the dangers of exposure

2 to chemical agents during the pandemic or present any evidence contradicting his opinions. They

3 also acknowledge that on June 16, 2020 the Oakland City Council “passed a resolution urging

4 OPD and mutual aid partners to stop using tear gas for crowd control during the COVID-19

5 pandemic” and that this resolution has raised “important questions about the unknown relationship

6 between chemical agents and COVID-19.” Response to Motion for Preliminary Injunction

7 (“Opposition”) at 16, 23; see also Pereda Decl., Ex. Q (June 16, 2020 “Resolution Urging The

8 City Of Oakland To Immediately Halt The Use Of Tear Gas For Crowd Control During The

9 Covid-19 Pandemic And Requesting The Oakland Police Commission To Immediately Review

10 And Propose Changes To The Oakland Police Department's Policy In Order To Halt Such Use”).

11 However, they point out that the Health Officer of the Alameda County Health Office has not

12 banned the use of chemical agents, which they insist is notable because of the strict measures that

13 the Alameda County Public Health Department has taken to control the spread of COVID-19. Id.

14 at 23.

15

F. The Motion

16

Plaintiffs contend OPD’s aggressive and dangerous tactics in dealing with recent and

17 ongoing demonstrations makes it essential that the Court enter a preliminary injunction prohibiting

18

19

were also found to lose their capability to sense irritants, increasing their risk of inhaling tear gas and developing chemical injuries.

20 Current events in the U.S. provide evidence of tear gas use escalation domestically. Inadequate

21

training, monitoring, and accountability in use of these weapons contribute to misuse and risk of injury. If used at all, tear gas should be a last resort.

22 The industry manufacturing tear gas systems have developed advanced launching technologies

23

allowing deployment of much higher amounts of tear gas over longer distances. Much of what we currently know about the health effects of exposure to tear gas and other chemical agents is based

24

on military research conducted in the 50s, 60s, and 70s using young healthy male research participants. These studies do not address the potential health effects for vulnerable populations

25 who are exposed, including children, older adults, and people with underlying health conditions.

26

Based on the lack of crucial research, the escalation of tear gas use by law enforcement, and the likelihood of compromising lung health and promoting the spread of COVID-19, the American

27

Thoracic Society calls for a moratorium on CS tear gas and OC pepper weapons use”, said Dr. Celedón.

28 Sporn Decl. ¶ 20 (quoting June 11, 2020 Statement of American Thoracic Society). 23

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1 the use of certain tactics and munitions, including tear gas and other chemical agents, by OPD and

2 any officers called in to assist OPD with crowd control under a mutual aid agreement.7

3

Defendants point to incidents of looting and violence during the relevant period to show

4 that its crowd control tactics were justified and that the injunctive relief Plaintiffs seek is

5 inappropriate. At the same time, they argue that Oakland’s policies already emphasize de-

6 escalation and the use of the minimum force necessary for crowd control. See Allison Decl. ¶ 8 &

7 Exs. B (General Order K-3) (instructing that “[m]embers are required to de-escalate the force

8 when the member reasonably believes a lesser level or no further force is appropriate.”), A (Crowd

9 Control Policy). Moreover, they contend OPD’s Crowd Control Policy has been successful over

10 the last five years, with OPD facilitating thousands of events, including mass protests and

11 demonstrations, largely without incident. See Allison Decl., Ex.G (Crowd Management Reports,

12 2015-2019).

13

Defendants acknowledge that chemical agents have been used by OPD on occasion over

14 the last five years but they represent that they have uncovered no “assembly-related” lawsuit filed

15 against the City of Oakland during that period. Opposition at 5. Defendants further contend that

16 any changes to OPD’s policies with respect to crowd control, including whether the use of tear gas

17 should be banned, should be made through the political and administrative review processes that

18 are already underway. Finally, they warn that if the Court prohibits the use of tear gas and other

19

20 7 In their Proposed Order, Plaintiffs ask the Court to prohibit the following:

21

1. Using tear gas or any other chemical weapons against persons taking part

22

in a protest or demonstration; 2. Firing rubber bullets or similar projectiles at persons taking part in a protest

23

or demonstration; 3. Firing flash bang grenades at persons taking part in a protest or

24

demonstration; 4. Failing to maintain their body worn cameras in the “on” position while

25

engaged in policing public protests and demonstrations; 5. Failing to display their name and department badges while engaged in

26

policing public protests and demonstrations; and 6. Kettling persons taking part in or observing public protests and

27

demonstrations.

28 Proposed Order, Docket No. 13-1.

24

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1 chemical agents outright some mutual aid partners will likely refuse to offer assistance, posing a

2 threat to Oakland’s ability to ensure adequate crowd control policing in the face of ongoing

3 demonstrations and unrest.

4 III. ANALYSIS

5

A. Legal Standards Governing Entry of Preliminary Injunctions

6

Plaintiffs seeking a preliminary injunction must establish that they are likely to succeed on

7 the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that

8 the balance of equities tips in their favor, and that an injunction is in the public interest. Winter v.

9 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). When the government is a

10 party, consideration of the balance of the equities and the public interest merge. Drakes Bay

11 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418,

12 435 (2009)).

13

“Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in

14 order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

15 1131 (9th Cir. 2011). In reaching this conclusion, the Supreme Court “disagreed with one aspect

16 of [the Ninth Circuit’s] approach to preliminary injunctions[,]” namely, its holding that “the

17 ‘possibility’ of irreparable harm was sufficient, in some circumstances, to justify a preliminary

18 injunction.” Id. The Winter decision did not, however, eliminate the “sliding scale” approach to

19 preliminary injunctions employed by the Ninth Circuit. Id. at 1134. Rather, the Ninth Circuit has

20 found that Winter left in place “the ‘serious questions’ version of the sliding scale test for

21 preliminary injunctions[,]” which provides that “[a] preliminary injunction is appropriate when a

22 plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of

23 hardships tips sharply in the plaintiff’s favor.” Id. at 1134-35 (citation omitted). Similarly, “a

24 stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of

25 success on the merits.” Id. at 1131.

26

“Due to the urgency of obtaining a preliminary injunction at a point when there has been

27 limited factual development, the rules of evidence do not apply strictly to preliminary injunction

28 proceedings.” Herb Reed Enterprises, LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1250 n. 5 25

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1 (9th Cir. 2013) (citing Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir.

2 1988)).

3 1. Likelihood of Success on the Merits
4 Plaintiffs assert their claims under the First, Fourth and Fourteenth Amendment. The
5 Court finds that they have established serious questions going to the merits on all three claims.
6

7

a. Fourth Amendment Claim (Excessive Force)

Excessive force claims are governed by the reasonableness standard of the Fourth 8

Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). “In determining reasonableness, 9

‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests must be 10

balanced against the ‘countervailing government interests at stake.’” Chew v. Gates, 27 F.3d 11

1432, 1440 (9th Cir. 1994) (quoting Graham, 490 U.S. at 396)). “In evaluating the government’s 12

interest in the use of force we look to: ‘(1) the severity of the crime at issue, (2) whether the 13

suspect posed an immediate threat to the safety of the officers or others, and (3) whether the 14

suspect was actively resisting arrest or attempting to evade arrest by flight.’” Young v. Cty. of Los 15

Angeles, 655 F.3d 1156, 1163 (9th Cir. 2011) (quoting Miller v. Clark Cty., 340 F.3d 959, 964 16

(9th Cir. 2003)). The ultimate inquiry is not limited to these three factors however, requiring 17

courts to “‘addresses whether the totality of the circumstances justifie[s] a particular sort of . . . 18

seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). 19

The types of force that was used by OPD against protesters in this case – chemical agents, 20

less lethal projectiles such as rubber bullets and flashbang grenades – constitute significant force. 21

See Young, 655 F.3d. at 1161 (pepper spray is “‘intermediate force’ that, while less severe than 22

deadly force, nonetheless present a significant intrusion upon an individual’s liberty interests.”); 23

Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (holding that beanbag projectile “akin 24

to a rubber bullet” is not deadly force but is “much greater than the force” associated with the use 25

of pepper spray and is “permissible only when a strong governmental interest compels the 26

employment of such force”). Consequently, such force must be justified by a significant 27

government interest. Based on the current record, there are serious questions as to whether that 28

26

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1 standard is met.

2

Plaintiffs have submitted sworn declarations and video footage showing that some of the

3 force used by OPD officer, or OPD’s mutual aid partners, was aimed at peaceful protestors who

4 did not pose a threat to the officers or the public at large and were not engaging in illegal activity.

5 As to a number of the incidents described in Plaintiffs’ declarations, it is not clear that the crowd

6 was refusing to disperse as there is evidence that they may have been given insufficient time to

7 respond or no warnings at all, or they could not hear the warnings. There is also evidence that

8 some demonstrators were unable to disperse in order to comply with officers’ commands and/or to

9 avoid violating curfew because they were trapped in an area with no accessible means of egress.

10

Defendants have countered with evidence that there was looting and violence occurring in

11 Oakland during this period. They have not, however, offered evidence that links the incidents

12 Plaintiffs contend involved inappropriate officer conduct with the looting and violence that is

13 described in the Police Activity Logs.8 Moreover, the Court has carefully reviewed the logs and

14 finds that as to at least some of the aggressive crowd control tactics described in Plaintiffs’

15 declarations and shown in the video footage, the timing and locations of the incidents on the logs

16 does not match the timing and locations of the events described by Plaintiffs and therefore does

17 not establish that the force used by OPD officers was reasonable as to those incidents.

18

Therefore, the Court finds that Plaintiffs have demonstrated that there are serious questions

19 going to the merits with respect to Plaintiffs’ Fourth Amendment excessive force claim.

20

21 8 The Court notes that while Defendants confirmed at the hearing that all of the entries on the

22

Activity Logs were called in by OPD officers, it appears that at least some of the entries describe reports received by OPD officers from third parties rather than activities that the officers

23

themselves observed, raising the possibility that some of the reports in the log may not be accurate. In addition, these second-hand reports from sources other than OPD officers raise

24

questions of admissibility. Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973) (“Entries in a police report based on an officer’s observation and knowledge may be admitted, but statements

25

attributed to other persons are clearly hearsay[ ] and inadmissible[.]”). Further, certain reports – such as reports of Molotov cocktails being thrown – are hotly contested by Plaintiffs and to date

26

have not been documented with a sworn declaration by a first-hand witness. At this stage of the case, when no discovery has occurred, the Court declines to make factual findings as to whether

27

any particular report of looting or violence reflected in the Activity Logs is accurate. Rather, the Court relies on the Activity Logs only to the extent that they reflect that on the dates at issue OPD

28 was facing disturbances in multiple locations that potentially posed a threat to public safety.

27

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1

b. First Amendment Claim (Freedom of Speech and Assembly)

2

The First Amendment “safeguards an individual’s right to participate in the public debate

3 through political expression and political association.” McCutcheon v. Fed. Election Com’n, 572

4 U.S. 185 203 (2014). The Supreme Court has observed that “[t]he constitutional right of free

5 expression is . . . designed and intended to remove governmental restraints from the arena of

6 public discussion, putting the decision as to what views shall be voiced largely into the hands of

7 each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry

8 and more perfect polity and in the belief that no other approach would comport with the premise

9 of individual dignity and choice upon which our political system rests.” Cohen v. California, 403

10 U.S. 15, 24 (1971). Thus, “[t]hat the air may at times seem filled with verbal cacophony is, in this

11 sense not a sign of weakness but of strength.” Id. at 25. “[S]peech on public issues occupies the

12 ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”

13 Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting N. A. A. C. P. v. Claiborne Hardware Co.,

14 458 U.S. 886, 913 (1982) (internal quotations and citation omitted)).

15

“In order to demonstrate a First Amendment violation, a plaintiff must provide evidence

16 showing that ‘by his actions [the defendant] deterred or chilled [the plaintiff’s] political speech

17 and such deterrence was a substantial or motivating factor in [the defendant’s] conduct.’”

18 Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999) (quoting

19 Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.1994) (alterations in original)). There is

20 significant evidence in the record that the tactics used against protestors in Oakland, including the

21 use of projectiles and tear gas, had a chilling effect on the political speech of the protestors and

22 likely deterred some of them from engaging in further protests. They describe being terrified,

23 traumatized and suffering physical injuries and panic attacks. Some said they would not have

24 participated if they had known tear gas would be used against them. In addition, some of the

25 aggressive conduct described in the declarations, such as shooting a reporter with a rubber bullet

26 even though it does not appear she was engaged in illegal activity or posed a threat of any kind,

27 raises a serious question as to whether some of the uses of force described in those declarations

28 was in reaction to the anti-police message of the protests and aimed at intimidating protesters to 28

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1 deter such speech.

2

Therefore, the Court finds that there are serious questions going to the merits with respect

3 to Plaintiffs’ First Amendment claim.

4

c. Fourteenth Amendment Claim (Substantive Due Process)

5

“It is well established that the Constitution protects a citizen’s liberty interest in her own

6 bodily security.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (citing

7 Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); Wood v. Ostrander, 879 F.2d 583, 589 (9th

8 Cir.1989)). Further, “although the state’s failure to protect an individual against private violence

9 does not generally violate the guarantee of due process, it can where the state action ‘affirmatively

10 place[s] the plaintiff in a position of danger,’ that is, where state action creates or exposes an

11 individual to a danger which he or she would not have otherwise faced.” Id. (citing DeShaney v.

12 Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 197, 201 (1989); Wood, 879 F.2d at 589–

13 90). Thus, for example, in Wood, an officer left the plaintiff stranded in a known high-crime area

14 late at night after arresting the driver and impounding the car and she was later raped when she

15 accepted a ride from a stranger. 879 F.2d at 586. The court found that the officer had been

16 deliberately indifferent to the plaintiff’s interest in personal security under the Fourteenth

17 Amendment. Id.; see also Penilla v. City of Huntington Park, 115 F.3d 707, 709-710 (9th Cir.

18 1997) (holding the plaintiff had stated a claim for violation of Fourteenth Amendment due process

19 based on deliberate indifference to medical needs where police officers, after finding a man in

20 grave need of medical care, cancelled a request for paramedics and locked him inside his house);

21 Munger v. City of Glasgow, 227 F.3d 1082 (9th Cir. 2000) (holding that police officers could be

22 held liable for violation of Fourteenth Amendment right to due process where they had ejected the

23 plaintiff from a bar on a bitterly cold night and he later died of hypothermia).

24

The evidence presented by Plaintiffs supports a likelihood of success on this claim.

25 Despite acknowledging the strict guidance of the Alameda County Public Health Department with

26 respect to the dangers of COVID-19 and offering assurances that OPD takes those dangers

27 seriously, there is no evidence in the record that the OPD took these dangers – and in particular,

28 the danger that chemical agents pose with respect to the spread of COVID-19 – into account in 29

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1 planning for or carrying out its crowd control strategies between May 29 and June 1, or that it has

2 adopted any new policies to mitigate those dangers. In addition, there can be no doubt that by the

3 time of the protests the OPD was aware of the mask requirement that was adopted by the Alameda

4 County Health Department in April 2020. Yet all of the declarations and the video footage

5 submitted by both sides are remarkably consistent in showing that officers did not wear masks

6 when conducting crowd control unless they were wearing gas masks. Officer can be seen in close

7 proximity to demonstrators, issuing spoken commands (often loudly) and in some cases placing

8 protestors in handcuffs as they arrested them, all without masks. According to one account,

9 Officer D’Orso laughed when asked about his failure to wear a mask. The Court is also concerned

10 by the accounts of numerous protesters that they were trapped by police officers and unable to

11 either disperse or maintain social distance. Again, there is no evidence that the OPD took into

12 account the heightened danger posed by COVID-19 in using crowd control tactics that did not

13 ensure adequate means of egress.

14

Based on this conduct, the Court finds that it is reasonably likely that Plaintiffs will be able

15 to show that Defendants acted with deliberate indifference to their personal security under the

16 Fourteenth Amendment.

17

2. Irreparable Harm

18

The Court also finds that Plaintiffs have made a strong showing of irreparable harm. “The

19 loss of First Amendment rights, for even minimal periods of time, unquestionably constitutes

20 irreparable injury.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (citing Elrod v.

21 Burns, 427 U.S. 347, 373 (1976)). Plaintiffs have offered evidence that the protests that began on

22 May 29, 2020 are ongoing; unless Defendants are enjoined from engaging in the aggressive

23 crowd control tactics described by Plaintiffs it is likely that Plaintiffs and other members of the

24 public who wish to participate in these protests will be deterred from doing so out of fear that they

25 will be subjected to such tactics. Further, while Defendants urge the Court to allow the various

26 administrative review processes to take their course, that approach does not adequately address the

27 extreme urgency created by the COVID-19 pandemic as every protest in which OPD must manage

28 the crowd presents a danger of fueling the spread of COVID-19. Therefore, this factor supports 30

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1 the entry of a preliminary injunction.

2

3. Balance of the Equities and the Public Interest

3

The Court concludes that the balance of the equities tips sharply in Plaintiffs’ favor and

4 that injunctive relief is in the public interest. As the court in Black Lives Matter Seattle-King Cty.

5 v. City of Seattle, Seattle Police Dep’t, noted, “‘serious First Amendment questions compel[ ]’ a

6 finding that the ‘balance of hardships tips sharply in [the plaintiffs’] favor[.]’” No. 2:20-CV-

7 00887-RAJ, 2020 WL 3128299, at *5 (W.D. Wash. June 12, 2020) (quoting Cmty. House, Inc. v.

8 City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (second alteration in original) (internal

9 quotations and citations omitted)). “And as to public interest, ‘it is always in the public interest to

10 prevent the violation of a party’s constitutional rights.’” Id. (quoting Melendres v. Arpaio, 695

11 F.3d 990, 1002 (9th Cir. 2012)).

12

B. Scope of Preliminary Injunction

13

Having found that a preliminary injunction is warranted, the Court turns to the scope of the

14 injunctive relief. As is reflected in the parties’ July 26, 2020 Status Report, Dkt. No. 47, the

15 parties were able to reach agreement as to many of the provision of the preliminary injunction.

16 Except with respect to whether the Preliminary Injunction would cover officers of mutual aid

17 partners, the parties agreed that officers should be bound by Oakland’s Crowd Control Policy, that

18 officers should be required to wear badges identifying them, that officers should be required to

19 have their body cameras on when engaged in crowd control activities, that police vehicles may not

20 be used to disperse crowds, and that special training with respect to OPD’s Crowd Control Policy

21 should be conducted by November 1, 2020. Dkt. No. 47. With respect to face masks and gloves,

22 the parties’ disagreement was only a matter of degree: Defendants agreed to a provision that

23 would have required officers to wear face masks and gloves when interacting with the public “to

24 the extent reasonably possible” whereas Plaintiffs advocated for a requirement that did not include

25 this qualifying language. Id.

26

The primary disagreements related to: 1) the degree to which the mutual aid partners

27 would be bound by the preliminary injunction; 2) the substantive limits that would placed on OPD

28 tactics and munitions in conducting crowd control; and 3) whether there should be a provision 31

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1 requiring that protesters who are arrested during protests must be cited and released in Oakland

2 rather than being sent to the County jail.

3

Because no mutual aid partners have been named as defendants, the Court does not have

4 the authority to issue injunctive relief that is binding on the mutual aid partners. Nonetheless,

5 California law provides that when OPD requests assistance from mutual aid partners, OPD

6 officers are to “remain in charge . . . including the direction of personnel and equipment provided

7 him through mutual aid.” Cal. Gov’t Code § 8618. The evidence submitted by the parties shows

8 that mutual aid partners played a significant role in crowd control in Oakland during the relevant

9 period, with the number of officers from mutual aid partners sometimes outnumbering OPD

10 officers. In light of this evidence, the effectiveness of the injunctive relief awarded by the Court

11 will depend to a large degree on whether officers of mutual aid partners abide by the terms of the

12 preliminary injunction that apply to OPD with respect to the crowd control tactics and munitions

13 they use. Therefore, the Court has included in the Preliminary Injunction provisions designed to

14 ensure that OPD officers will, in fact, remain in charge of the incident, including ensuring that the

15 mutual aid partners do not use tactics or munitions that are inconsistent with the terms of the

16 preliminary injunction or Oakland’s Crowd Control Policy.

17

With respect to the tactics and munitions that OPD may use for crowd control, the Court

18 finds that the evidence in the record provides a sufficient basis for prohibiting outright the use of

19 stinger grenades, wooden bullets, rubber or rubber coated bullets, pepper balls, and similar

20 munitions. As discussed above, many of these are already prohibited under Oakland’s Crowd

21 Control Policy. The Court has also placed strict limits on the use of chemical agents, flashbang

22 grenades and foam projectiles. It has not banned them outright because Defendants have

23 presented evidence that there may be situations where there is an imminent threat of physical harm

24 to a person or significant destruction of property and where use of these munitions may pose less

25 of threat to the public than physical force by police officer aimed at addressing that threat, such as

26 use of batons. Based on the current record, the Court concludes that there is at least a possibility

27 that banning these munitions could not only endanger public safety in general but also increase the

28 dangers faced by protestors. The Court may revisit this question at a later stage of the case, 32

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1 however, after the parties have had an opportunity to conduct discovery. As noted in the

2 preliminary injunction, the Court does not conclude that the use of these tactics and munitions in

3 the limited circumstances permitted under the Preliminary Injunction is either lawful or advisable.

4

The Court did not include a provision in the preliminary injunction addressing cite-and-

5 release requirements because there was not sufficient evidence in the record to guide the Court’s

6 decision as to whether such an injunction was warranted. Likewise, the Court declined to include

7 the qualifying language proposed by Defendants in the provision requiring that officers wear

8 masks and gloves when interacting with the public because Defendants presented no evidence that

9 imposing such requirements would hamper OPD officers in any way with respect to carrying out

10 their duties. Nor did they raise any arguments that they would.

11 IV. CONCLUSION

12

For the reasons stated above, the Motion is GRANTED in part and DENIED in part.

13

IT IS SO ORDERED.

14

15 Dated: August 10, 2020

16

______________________________________

JOSEPH C. SPERO

17

Chief Magistrate Judge

18

19

20

21

22

23

24

25

26

27

28 33

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

ANTI POLICE-TERROR PROJECT, et al.,

7

Case No. 20-cv-03866-JCS

Plaintiffs,

8 v.
9

AMENDED PRELIMINARY INJUNCTION

CITY OF OAKLAND, et al., 10
Defendants.

Re: Dkt. Nos. 52, 63, 66

11

12

13

Having considered the arguments and evidence submitted by the parties in connection with

14 the pending motion for a preliminary injunction, the parties’ agreement that a preliminary

15 injunction may issue and their agreement as to some of the terms of that injunction, and for the

16 reasons set forth in the order issued August 10, 2020 (dkt. 54), the Court entered a preliminary

17 injunction on July 29, 2020 (dkt. 52). Having now considered the parties’ arguments and evidence

18 submitted in connection with the parties’ cross-motions to modify the preliminary injunction (dkts.

19 63, 66), and for the reasons that will be set forth in a separate written order to follow this Order,

20 the Court issues this amended preliminary injunction, superseding the previous injunction. This

21 amended injunction modifies Section VI, pertaining to mutual aid.

22

This Order provides that certain crowd control tactics and munitions shall not be used

23 except in very limited circumstances. This Order should not be read as permission to use these

24 tactics and munitions. The Court in this Order does not conclude that the use of these tactics and

25 munitions in the limited circumstances addressed below is either lawful or advisable. Indeed, uses

26 of force in specific instances, even if such force is not expressly prohibited by this Order, may or

27 may not be lawful depending upon the circumstances at the time and existing precedent. The

28 Court does not address that question at this time. The Court only determines that use of these

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1 crowd control techniques outside of the limited circumstances listed herein will be prohibited

2 during the pendency of this action. As recognized in the Oakland Police Department’s (“OPD”)

3 Crowd Control Policy, it remains incumbent upon OPD to “uphold the constitutional rights of free

4 speech and assembly while relying on the minimum use of physical force and authority required to

5 address a crowd management or crowd control issue.”

6

It is hereby ORDERED that, unless and until this Order is modified or vacated by the

7 Court, Defendants City of Oakland (“the City”), OPD, Police Chief Susan E. Manheimer, and all

8 officers and employees of OPD, shall comply with the following restrictions during protests and

9 demonstrations in Oakland:

10 I. 11

TRAINING BULLETIN III-G Except as modified in this order, OPD shall adhere to Training Bulletin III-G, OPD Crowd

12

Control and Crowd Management (2013), attached as Exhibit A.

13 II. BADGES

14

Each OPD officer shall wear a badge, nameplate, or other device on the outside of his or

15

her uniform or on his or her helmet which bears the identification number or the name of

16

the officer, as required by Penal Code § 830.10.

17 III. BODY CAMERAS

18

All OPD officers shall utilize their Personal Digital Recording Device (“PDRD”) in

19

accordance with DGO I-15.1, Portable Video Management System. In addition, all OPD

20

officers deployed to demonstrations in Oakland shall have their PDRDs activated and

21

recording at all times while engaged in active policing activities. They shall also have their

22

PDRDs activated and recording when ordered to do so by a supervisor or commander.

23 IV. POLICE VEHICLES AND MOTORCYCLES

24

Motorcycles and police vehicles may not be used for crowd dispersal but may be used for

25

purposes of observation, visible deterrence, traffic control, transportation, and area control

26

during a crowd event.

27 V. TACTICS AND LESS LETHAL MUNITIONS

28

1. OPD officers are prohibited from using stinger grenades, wooden bullets, rubber or rubber-

2

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1

coated bullets, pepper balls, or similar munitions.

2

2. Chemical agents (including orthochlorobenzalmalononitrile), flashbang grenades, and

3

foam-tipped projectiles shall be deployed only when (a) there is an imminent threat of

4

physical harm to a person or significant destruction of property; and (b) other techniques,

5

such as simultaneous arrests or police formations, have failed or are not reasonably likely

6

to mitigate the threat. The use of such munitions must be authorized by an OPD

7

Operations Commander or Incident Commander. None of these devices shall be deployed

8

on peaceful protestors or indiscriminately into a crowd. They may only be targeted at the

9

specific imminent threat justifying the deployment. Flash bang grenades and gas canisters

10

must be deployed at a safe distance from the crowd to minimize the risk that individuals

11

will be struck and injured by those devices. When chemical agents are used, only the

12

minimum amount of chemical agent necessary to obtain compliance may be used, in

13

accordance with OPD’s Department General Order K-3, USE OF FORCE.

14

3. Except where an immediate risk to public safety or of significant property damage makes it

15

impossible to do so, before any of the devices listed in Section V(2) are deployed to

16

disburse a crowd, OPD must have made at least two announcements to the crowd asking

17

members of the crowd to voluntarily disperse and informing them that, if they do not

18

disperse, they will be subject to arrest. These announcements must be made using

19

adequate sound amplification equipment in a manner that will ensure that they are audible

20

to the crowd and must identify at least two means of escape/egress. OPD must also allow

21

the crowd sufficient time to disperse after making these announcements before deploying

22

any of the devices in Section V(2).

23 VI. MUTUAL AID

24

A. Limitations on the Scope of the Injunction

25

This injunction binds only the City of Oakland, OPD, Police Chief Susan E. Manheimer,

26 and all officers and employees of OPD. The sections below establish standards OPD must follow

27 when requesting mutual aid, but because no mutual aid partners have been named as defendants,

28 the Court does not have the authority to issue injunctive relief that is binding on the mutual aid 3

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1 partners.

2

This injunction does not prohibit an OPD or mutual aid officer from taking reasonable

3 action or using reasonable or necessary force as allowed by law against an individual in self-

4 defense or in defense of another person or officer.

5

In any situation where mutual aid officers are present at a demonstration, OPD personnel

6 shall to the extent possible assume front line positions between mutual aid officers and

7 demonstrators.

8

B. Standard Rules for Mutual Aid

9

The OPD Incident Commander shall be responsible for ensuring that the requirements

10 listed below are met by mutual aid agencies providing assistance to OPD under a mutual aid

11 agreement, unless exigent circumstances prevent the fulfillment of these obligations:

12

i. The Incident Commander shall ensure that the mutual aid agency has been briefed and is

13

in agreement with OPD’s Unity of Command structure under which only OPD

14

Commanders may authorize the use of less lethal munitions for crowd control and

15

dispersal;

16

ii. The Incident Commander shall ensure that the mutual aid agency has been briefed on

17

OPD’s policy on prohibited weapons and force;

18

iii. The Incident Commander shall ensure that the officers of the mutual aid agency who

19

provide assistance to OPD do not bring or use any weapons or force prohibited under

20

OPD’s policy;

21

iv. The Incident Commander shall ensure that the mutual aid agency has been provided a

22

copy of OPD’s Crowd Control Policy and Use of Force policies;

23

v. The Incident Commander shall ensure that officers of the mutual aid agency who

24

provide assistance to OPD are not assigned to front-line positions or used for crowd

25

intervention, control or dispersal unless there is a public safety emergency;

26

vi. The Incident Commander shall ensure that the officers of the mutual aid agency who

27

provide assistance to OPD complete required reports prior to being released from duty.

28

Agencies should provide the following documents/reports when they are applicable: Use of

4

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United States District Court Northern District of California

1

force report, arrest report, crime report, injury report, equipment damage report and list of

2

responding personnel.

3

C. Contingencies for Inability to Obtain Necessary Aid

4

If OPD determines that mutual aid is needed for an anticipated or actual protest or

5 demonstration, OPD must make reasonable efforts to obtain such aid in a manner consistent with

6 the requirements of Section VI(B) above. If the Chief of Police certifies in writing that those

7 efforts were not sufficient to meet OPD’s anticipated need for mutual aid, OPD may instead obtain

8 mutual aid pursuant to the terms of Training Bulletin III-G,1 notwithstanding any requirement of

9 Section VI(B) of this injunction.

10

Under those circumstances, the Chief of Police must file with the Court, no later than

11 forty-eight hours after the incident requiring mutual aid, a detailed report stating as follows:

12

i. The reasons why OPD required mutual aid;

13

ii. The number of mutual aid officers OPD determined would be required;

14

iii. The efforts OPD made to obtain mutual aid in compliance with Section VI(B)

15

specifically for the incident requiring mutual aid, and the results of such efforts;

16

iv. The subsequent efforts OPD made to obtain mutual aid in compliance only with

17

Training Bulletin III-G, and the results of such efforts;

18

v. The mutual aid partners, if any, that ultimately provided aid; and

19

vi. The number of officers each mutual aid partner provided.

20 VII. TRAINING

21

By November 1, 2020, OPD shall conduct a special training session for OPD Incident

22 Commanders, Operations Commanders, and Tango Team members concerning Training Bulletin

23 III-G and this agreement. Plaintiffs’ counsel may attend this training session. Further, Plaintiffs’

24

25

1 Training Bulletin III-G was mandated under the settlement agreements and orders in Spalding v. City of Oakland, No. 11-cv-02867 TEH (N.D. Cal.), and Campbell v. City of Oakland, No. 11-cv-

26

05498 JST (N.D. Cal.). The parties agreed at the October 27, 2020 hearing that mandating compliance with Training Bulletin III-G as a substitute for the requirements of Section VI (B) is

27

an appropriate remedy for OPD’s inability to secure mutual aid under the original terms of the preliminary injunction. The Court notes that Training Bulletin III-G has been in force for many

28

years, and local law enforcement agencies, including the Alameda County Sheriff, have provided mutual aid to Oakland under its terms.

5

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1 counsel may conduct part of the training subject to scope and time parameters agreed to in

2 advance by the parties.

3 VIII. FACE MASKS AND GLOVES

4

During the pendency of the state of emergency declared by either the President of the

5 United States, or the Governor of the State of California, due to the COVID-19 pandemic, all OPD

6 officers and employees deployed to demonstrations in Oakland must wear face masks and gloves

7 whenever they interact with members of the public.

8 IX. AFTER-ACTION REPORT

9

The original injunction in this case required the City to produce a report to Plaintiffs no

10 later than August 28, 2020. Because that deadline has passed, the City has presumably complied,

11 and Plaintiffs have not raised any issue of the City’s compliance, that requirement is omitted from

12 this amended injunction.

13 X. 14

ENFORCEMENT If Plaintiffs contend that OPD violates Training Bulletin III-G or any of this Order’s

15 provisions at a future protest or demonstration, Plaintiffs may request a hearing to seek relief,

16 including a modification of this Order. Unless the parties agree to a different briefing schedule,

17 Defendants will have seventy-two hours to respond to Plaintiffs’ request.

18

IT IS SO ORDERED.

19 Dated: October 28, 2020

20

______________________________________

JOSEPH C. SPERO

21

Chief Magistrate Judge

22

23

24

25

26

27

28 6

 
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1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

ANTI POLICE-TERROR PROJECT, et al., Case No. 20-cv-03866-JCS 7

Plaintiffs,

ORDER DENYING PLAINTIFFS’

8 v.
9
CITY OF OAKLAND, et al., 10
Defendants.

MOTION TO ENFORCE AND MODIFY, AND GRANTING IN PART DEFENDANT CITY OF OAKLAND’S CROSS-MOTION TO MODIFY, PRELIMINARY INJUNCTION

11

Re: Dkt. Nos. 63, 66

12

13

I. INTRODUCTION

14

This case arises out of ongoing demonstrations in Oakland against police brutality and

15 racial injustice in the United States. After being sparked by the killing of George Floyd by a

16 Minneapolis police officer on May 25, 2020, these demonstrations were rekindled by the shooting

17 of Jacob Blake by a Kenosha police officer on August 23 and the lack of a grand jury indictment

18 of any Louisville police officers for the death of Breonna Taylor on September 25.

19

On June 11, Plaintiffs filed a complaint alleging that, between May 29 and June 1, the

20 Oakland Police Department (“OPD”) “deployed constitutionally unlawful crowd control tactics

21 including kettling, indiscriminately launching . . . tear gas and flashbangs into crowds and at

22 individuals, and shooting projectiles at demonstrators.” Compl. (dkt. 1) ¶ 2. According to

23 Plaintiffs, OPD “did not act alone[,]” “call[ing] on its mutual aid network of police departments

24 from other municipalities to further carry out its constitutionally violative tactics.” Id. ¶ 8.

25 Plaintiffs moved for a temporary restraining order (“TRO”) and a preliminary injunction. Id. at

26 17–18; dkt. 13 (motion for TRO and preliminary injunction); dkts. 14–28 (documents in support

27 of motion for TRO and preliminary injunction). On June 18, based on the agreement of the

28 parties, the Court entered a TRO that restricted the crowd control tactics and munitions that OPD

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United States District Court Northern District of California

1 was permitted to use. TRO (dkt. 34); see dkts. 31–33. On July 29, after receiving written and oral

2 arguments and evidence from the parties, the Court entered a preliminary injunction (the

3 “Injunction”). Injunction (dkt. 52). On August 10, the Court issued an opinion explaining its

4 reasoning for granting the Injunction. Opinion (dkt. 54).1

5

On October 7, Plaintiffs filed the present motion to enforce and modify the Injunction (the

6 “motion”). Mot. (dkt. 63); see Plaintiffs’ Proposed Order (dkt. 73). On October 12, Defendant

7 City of Oakland (City) filed the present cross-motion to modify the Injunction (the “cross-

8 motion”). Cross-Mot. (dkt. 66); see Status Rpt. (dkt. 75). Given the potential for large-scale

9 demonstrations related to the upcoming election, the Court received briefing on an expedited

10 schedule and held a hearing on the motions on October 27, 2020 at 3:00 p.m. On Wednesday,

11 October 27, the Court issued an amended injunction (the “Amended Injunction”), making some

12 but not all of the modifications requested by the City.2 Amended Injunction (dkt. 82). In this

13 order, the Court denies Plaintiffs’ motion to enforce the Injunction and sets forth its reasons for

14 denying Plaintiffs’ motion to modify the Injunction and for granting in part and denying in part the

15 City’s cross-motion to modify the Injunction.3

16

II. BACKGROUND

17

A. Allegations in Plaintiffs’ Complaint and Evidence Previously Submitted

18

In the Court’s opinion explaining its reasoning for granting the Injunction, the Court

19 described the allegations in Plaintiffs’ Complaint and the evidence previously submitted by the

20 parties. See generally Opinion.

21

Plaintiffs allege that on May 29, 2020 and several days thereafter, “OPD and its mutual aid

22 partners used a variety of impermissible tactics against peaceful protesters, often without adequate

23 warnings, causing physical injuries and trauma and ‘discourag[ing] members of the Oakland

24

25

1 Anti Police-Terror Project v. City of Oakland, __ F. Supp. 3d __, No. 20-cv-03866-JCS, 2020 WL 4584185 (N.D. Cal. Aug. 10, 2020). For ease of reference, the Court uses the ECF page

26

numbering when citing the contents of the opinion. 2 In this order, the Court uses the present tense when referring to provisions of the Injunction that

27

remain unchanged in the Amended Injunction, and the Court only includes citations to the Amended Injunction when referring to provisions that have changed in some respect.

28

3 The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). Dkts. 7, 9, 11, 74.

2

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1 community from participating in lawful protest activities.’ ” Id. at 3 (quoting Compl. ¶ 19); see id.

2 at 2–4; see generally Compl. They have brought “a putative class action on behalf of ‘[a]ll

3 demonstrators who participated and/or intended to participate in the protests beginning on May 29,

4 2020 in Oakland,’ against the City of Oakland (the “City”), OPD Police Chief Susan Manheimer,

5 OPD Sergeant Patrick Gonzales, and OPD Officers Maxwell D’Orso and Casey Fought,” asserting

6 claims under 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments.

7 Opinion at 3 (quoting Compl. ¶ 81); see id. at 26–28 (discussing claims).

8

In support of their motion for a temporary restraining order and preliminary injunction,

9 “Plaintiffs submitted numerous sworn declarations describing encounters they and other protestors

10 had with police while they were participating in protests in downtown Oakland between May 29

11 and June 1, 2020.” Id. at 5; see id. at 5–9; see generally dkt. 13-28. Additionally, Plaintiffs

12 presented a declaration by a specialist in pulmonary disease “addressing the health risks associated

13 with the use of chemical agents, including tear gas and pepper spray” and explaining the view that

14 “the use of tear gas and pepper spray is particularly dangerous during the COVID-19 pandemic.”

15 Opinion at 20–21, 21; see id. at 19–23; see generally Sporn Decl. (dkt. 23); id. ¶ 20 (quoting a

16 statement of the American Thoracic Society).

17

In opposition to Plaintiffs’ motion, Defendants offered two declarations, “one by their

18 attorney, David Pereda, and another by Darren Allison, Interim Assistant Chief of Police at OPD.”

19 Opinion at 9; see generally dkts. 36-1, 36-2. Although “[n]either declaration specifically

20 addresse[d] the incidents described by Plaintiffs in their complaint and in the declarations,”

21 Defendants also supplied the Court with activity logs for May 29 through June 8 that contained

22 “reports by OPD officers of activity related to demonstrations in Oakland, as well as reports of

23 looting, Molotov cocktails being thrown and other illegal activities.” Opinion at 9; see id. at 9–12;

24 see generally dkt. 36-10. Additionally, Defendants supplied the munitions logs for May 29

25 through June 4, which contained information about munitions deployed by OPD, but not by its

26 mutual aid partners. Opinion at 12; see generally dkt. 36-11.

27

According to Defendants’ declarations, “ ‘Especially during the first four days of

28 protests—May 29 through June 1—Oakland relied heavily on mutual aid from the Alameda 3

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1 County Sherriff’s Office, the California Highway Patrol, the U.S. Marshals Service, and police

2 departments from across the Bay Area and state.’ ” Opn. at 19–20 (quoting dkt. 36-1 at ¶ 11).

3 “ ‘During these days, mutual aid partners reported that, among other force options, they deployed

4 CS blasts, Sting balls, smoke, and projectiles.’ ” Id. at 20 (quoting dkt. 33-1 at ¶ 14).

5

Defendants also submitted Training Bulletin III-G, OPD’s Crowd Control and Crowd

6 Management (“Training Bulletin III-G” or “Crowd Control Policy”) that is mandated under the

7 settlement agreements and orders in Spalding v. City of Oakland, No. 11-cv-02867 TEH (N.D.

8 Cal.), and Campbell v. City of Oakland, No. 11-cv-05498 JST (N.D. Cal.). Opinion at 12 n.5

9 (describing settlement agreements and orders); see Training Bulletin III-G (dkt. 36-3). As the

10 Court observed, “One of the stated policies that underpins the OPD Crowd Control Policy is to

11 ‘uphold constitutional rights of free speech and assembly while relying on the minimum use of

12 physical force and authority required to address a crowd management or crowd control issue.’ ”

13 Opinion at 13 (quoting Training Bulletin III-G, § 1). To meet this objective, the policy contains

14 specific provisions relating to crowd management and control, use of chemical agents and less

15 lethal munitions, and mutual aid. See id. at 12–19. Defendants’ opposition also recognized that,

16 on June 16, the Oakland City Council “passed a resolution urging OPD and mutual aid partners to

17 stop using tear gas for crowd control during the COVID-19 pandemic.” Id. at 23 (quoting dkt. 36

18 at 16); see generally dkt. 36-18.

19

B. The Preliminary Injunction

20

Even before the Court entered the Injunction, the parties agreed to many of its provisions.

21 Opinion at 31 (citing July 26 Status Report (dkt. 47)). The parties’ primary disagreements

22 included “the degree to which the mutual aid partners would be bound by the preliminary

23 injunction” and “the substantive limits that would [be] placed on OPD tactics and munitions in

24 conducting crowd control.” Id.

25

On July 29, after considering the parties’ arguments and evidence, the Court entered the

26 Injunction. As is relevant here, Sections I, V, VI, and VIII of Injunction provide:

27

I. TRAINING BULLETIN III-G

28

Except as modified in this order, OPD shall adhere to Training Bulletin III-

4

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G, OPD Crowd Control and Crowd Management (2013), attached as Exhibit

1

A. . . .

2

V. TACTICS AND LESS LETHAL MUNITIONS

3

1. OPD officers are prohibited from using stinger grenades, wooden bullets,

rubber or rubber- coated bullets, pepper balls, or similar munitions.

4

2. Chemical agents (including orthochlorobenzalmalononitrile), flashbang

5

grenades, and foam-tipped projectiles shall be deployed only when (a) there

6

is an imminent threat of physical harm to a person or significant destruction of property; and (b) other techniques, such as simultaneous arrests or police

7

formations, have failed or are not reasonably likely to mitigate the threat. The

use of such munitions must be authorized by an OPD Operations Commander

8

or Incident Commander. None of these devices shall be deployed on peaceful

protestors or indiscriminately into a crowd. They may only be targeted at the

9

specific imminent threat justifying the deployment. Flash bang grenades and

10

gas canisters must be deployed at a safe distance from the crowd to minimize

the risk that individuals will be struck and injured by those devices. When

11

chemical agents are used, only the minimum amount of chemical agent

necessary to obtain compliance may be used, in accordance with OPD’s

12

Department General Order K-3, USE OF FORCE.

13

3. Except where an immediate risk to public safety or of significant property

14

damage makes it impossible to do so, before any of the devices listed in

Section V(2) are deployed to disburse a crowd, OPD must have made at least

15

two 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

16

to arrest. These announcements must be made using adequate sound

amplification equipment in a manner that will ensure that they are audible to

17

the crowd and must identify at least two means of escape/egress. OPD must

18

also allow the crowd sufficient time to disperse after making these

announcements before deploying any of the devices in Section V(2).

19

VI. MUTUAL AID

20

The OPD Incident Commander shall be responsible for ensuring that the

requirements listed below are met by mutual aid agencies providing assistance to

21

OPD under a mutual aid agreement, unless exigent circumstances prevent the

22

fulfillment of these obligations:

i. The Incident Commander shall ensure that the mutual aid agency has

23

been briefed and is in agreement with OPD’s Unit of Command structure

24

under which only OPD Commanders may authorize the use of less lethal munitions for crowd control and dispersal;

25

ii. The Incident Commander shall ensure that the mutual aid agency has

26

been briefed on OPD’s policy on prohibited weapons and force;

27

iii. The Incident Commander shall ensure that the officers of the mutual aid

28

agency who provide assistance to OPD do not bring or use any weapons

5

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or force prohibited under OPD’s policy; 1

2

iv. The Incident Commander shall ensure that the mutual aid agency has

been provided a copy of OPD’s Crowd Control Policy and Use of Force

3

policies;

4

v. The Incident Commander shall ensure that officers of the mutual aid

agency who provide assistance to OPD are not assigned to front-line

5

positions or used for crowd intervention, control or dispersal unless there

6

is a public safety emergency;

7

vi. The Incident Commander shall ensure that the officers of the mutual aid

agency who provide assistance to OPD complete required reports prior to

8

being released from duty. Agencies should provide the following

9

documents/reports when they are applicable: Use of force report, arrest report, crime report, injury report, equipment damage report and list of

10

responding personnel.

These provisions do not prohibit an OPD or mutual aid officer from taking

11

reasonable action or using reasonable or necessary force as allowed by law

12

against an individual in self-defense or in defense of another person or officer.

OPD personnel shall endeavor to assume front line positions between mutual aid

13

officers and demonstrators. . . .

14

VIII. FACE MASKS AND GLOVES

During the pendency of the state of emergency declared by either the President

15

of the United States, or the Governor of the State of California, due to the

16

COVID-19 pandemic, all OPD officers and employees deployed to

demonstrations in Oakland must wear face masks and gloves whenever they

17

interact with members of the public.

18 And, as is relevant to the City’s present cross-motion, the Court’s subsequent opinion explained:

19

Because no mutual aid partners have been named as defendants, the Court does not

have the authority to issue injunctive relief that is binding on the mutual aid partners.

20

Nonetheless, California law provides that when OPD requests assistance from

21

mutual aid partners, OPD officers are to “remain in charge . . . including the direction of personnel and equipment provided him through mutual aid.” Cal. Gov’t Code

22

§ 8618. The evidence submitted by the parties shows that mutual aid partners played

a significant role in crowd control in Oakland during the relevant period, with the

23

number of officers from mutual aid partners sometimes outnumbering OPD officers.

In light of this evidence, the effectiveness of the injunctive relief awarded by the

24

Court will depend to a large degree on whether officers of mutual aid partners abide

25

by the terms of the preliminary injunction that apply to OPD with respect to the crowd control tactics and munitions they use. Therefore, the Court has included in

26

the Preliminary Injunction provisions designed to ensure that OPD officers will, in

fact, remain in charge of the incident, including ensuring that the mutual aid partners

27

do not use tactics or munitions that are inconsistent with the terms of the preliminary

28 6

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injunction of Oakland’s Crowd Control Policy. 1

2 Opinion at 32.

3

C. Plaintiffs’ Motion and Evidence

4

1. Plaintiffs’ Motion

5

After the shooting of Jacob Blake by a Kenosha police officer on August 23 and the lack of

6 a grand jury indictment of any police officers for the death of Breonna Taylor on September 25,

7 large demonstrations were held in Oakland. On August 26, August 28, August 29, and September

8 25, Plaintiffs allege that “OPD responded to [the demonstrators’] calls for accountability” by

9 violating Sections I, V, and VII of the Injunction “by deploying chemical agents and projectiles in

10 a prohibited manner, kettling peaceful protestors, and failing to maintain safe social distancing

11 measures.” Mot. at 2.

12

In support of their motion, Plaintiffs offer declarations by several demonstrators who

13 participated in these events. Plaintiffs also supply the Court with links to tweets that include

14 photos and videos of the August 28, August 29, and September 25 demonstrations and with a link

15 to an article by the San Francisco Chronicle regarding the September 25 demonstration. Kim Decl

16 (dkt. 64). Finally, Plaintiffs submit a probable cause declaration that was filed by OPD in support

17 of a charge against a demonstrator who participated in the August 28 demonstration. PC Decl.

18 (dkt. 64-1). The Court summarizes these materials below.

19

2. Events on Wednesday, August 26

20

Plaintiffs allege that Defendants violated the Injunction on August 26 by kettling peaceful

21 demonstrators, by displaying their weapons to control demonstrators’ movements, and by failing

22 to wear face masks and gloves. Mot at 3, 8–9. In support of these allegations, Plaintiffs submit

23 declarations by Cat Sorokin and Ella Hansen, who participated in the demonstrations as medics to

24 provide aid to anyone who should need it. Sorokin Decl. (dkt. 63-2) ¶¶ 3, 8–10; Hansen Decl.

25 (dkt. 63-5) ¶¶ 3–6.

26

Around 7:00 or 7:30 p.m., demonstrators gathered for a march starting from Oscar Grant

27 Plaza. Hansen Decl. ¶ 5. Ms. Sorokin and Mx. Hansen drove behind the demonstrators in a van

28 visibly marked with “big ‘First Aid,’ letters above the windshield,” “big red crosses on the sides

7

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1 and rear,” and the letters “ ‘QUICC,’ which stands for Queers United in Community Care.”

2 Hansen Decl. ¶¶ 7–10; Sorokin Decl. ¶¶ 4–6. Ms. Sorkin declares that, during the demonstration,

3 officers “kettled and closely followed protestors, including immersing themselves in the protest.”

4 Sorokin Decl. ¶ 11. “Near the end of the night,” Mx. Hansen declares, the demonstrators “were

5 blocked in by OPD and only had one way to go, which was into a residential neighborhood.”

6 Hansen Decl. ¶ 13. Then, they “ended up at a ‘T’ intersection, but the police barricaded both

7 exits.” Id. ¶ 14. When the demonstrators turned around, officers “rushed at the crowd.” Id. Mx.

8 Hansen and the other occupants of the medic van “were trying to leave but the police targeted and

9 surrounded the medic van” and “pulled” the occupants out. Id. ¶¶ 16, 18. Mx. Hansen was

10 “tackled,” “shov[ed],” and “push[ed] . . into the ground” by five OPD officers who “forc[ed] [Mx.

11 Hansen] down.” Id. ¶ 19. Ultimately, Mx. Hansen was handcuffed and transported to the Santa

12 Rita Jail. Id. ¶¶ 20, 44. “Throughout these events,” Mx. Hansen declares, “many officers were

13 not wearing masks or practicing any social distancing.” Id. ¶ 49.

14

3. Events on Friday, August 28

15

Plaintiffs allege that Defendants also violated the Injunction on August 28 by deploying

16 chemical agents without justification, without warning, and in an unsafe manner; by kettling

17 peaceful demonstrators; by displaying their weapons to control demonstrators’ movements; by

18 corralling demonstrators such that they could not keep physical distance from each other; and by

19 failing to wear face masks and gloves. Mot at 3–4, 7–9. In support of these allegations, Plaintiffs

20 submit declarations by the following demonstrators: Alex Lapierre, Chris Munevar, Ian

21 McDonnell, Jennifer Li, and Killian Clancy. See Mot. at 3–4; Lapierre Decl. (dkt. 63-1); Munevar

22 Decl. (dkt. 63-3); McDonnell Decl. (dkt. 63-6); Li Decl. (dkt. 63-7); Clancy Decl. (dkt. 63-9).

23

Between 7:00 and 8:00 p.m., demonstrators gathered at Oscar Grant Plaza. Munevar Decl.

24 ¶ 2; McDonnell Decl. ¶ 4; Li Decl. ¶¶ 4–6; Clancy Decl. ¶ 5. From the declarations, it appears

25 that many demonstrators marched west to the Federal Building, south to the Oakland Police

26 Administration Building, and then north back to Oscar Grant Plaza, but it is not clear whether Mr.

27 Lapierre, Mr. McDonnell, Ms. Li, and/or Mr. Clancy were marching in the same crowd the entire

28 time. Lapierre Decl. ¶ 3; McConnell Decl. ¶10; Li Decl. ¶¶ 8–12; Clancy Decl. ¶ 5. Meanwhile, 8

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1 Mr. Munevar’s declaration indicates that he was in a crowd of demonstrators that marched “almost

2 to North Berkeley and . . . back.” Munevar Decl. ¶ 3.

3

According to Mr. Clancy, officers “surrounded the crowd and walked along the sidewalks

4 and the back of the crowd.” Clancy Decl. ¶ 9. “[F]ollow[ing] the back of the crowd closely,”

5 officers “t[old] people that they had to . . . keep moving,” and they “kept the crowd compact so

6 that physical distancing was not possible.” Id. ¶¶ 9, 10. They also “shov[ed] people off the

7 sidewalks into the street.” Id. ¶ 9. Similarly, Mr. Lapierre recalls that officers “walk[ed] on both

8 sides of the sidewalk” and “pushed some demonstrators back onto the street.” Lapierre Decl. ¶ 4.

9 Further, Mr. Munevar recalls that officers were “armed with really big guns,” told people to

10 “move faster or you will be arrested,” and “stepped on the back of [his] shoes and [his] girlfriend’s

11 shoes.” Munevar Decl. ¶¶ 4, 5, 6.

12

Sometime between 9:06 p.m. and 9:11 p.m., a crowd of demonstrators including Mr.

13 McDonnell and Ms. Li reached the intersection of Franklin Street and 15th Street, where officers

14 deployed “smoke bombs” without warnings audible to Ms. Li or Mr. McDonnell. McDonnell

15 Decl. ¶¶ 11–15; Li Decl. ¶¶ 17–18. Officers then grabbed and handcuffed two demonstrators

16 without explaining the causes for their arrests. McDonnell Decl. ¶¶ 16–19; Li Decl. ¶ 20.

17 Additionally, Ms. Li saw some OPD officers without face coverings, and she saw others remove

18 their face coverings, including one with an arrestee in his vehicle. Li Decl. ¶¶ 21–22. Shortly

19 after an officer kicked Mr. Lapierre’s bicycle near the Federal Building around 9:00 p.m., he also

20 observed officers “throw smoke bombs at the demonstrators.” Lapierre Decl. ¶ 3. Based on the

21 timing and location of the events in Mr. Lapierre’s declaration, it seems he witnessed the same

22 deployment as Ms. Li and Mr. McDonnell.

23

Mr. Clancy also states that after marching for 45 to 60 minutes, he “noticed the police

24 throw a smoke grenade into [a] crowd,” without warning. Clancy Decl. ¶¶ 12, 13. Based on the

25 timing and location of the events described in officer reports submitted by Defendants, it seems

26 that Mr. Clancy witnessed a different deployment than Mr. McDonnell, Ms. Li, and Mr. Lapierre.

27 While moving away from the smoke, Mr. Clancy tripped over a median into the middle of the

28 street and an officer “dove onto [him] and slammed [his] face into the ground, causing [him] to 9

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1 bleed from [his] head” and leaving him with scrapes and bruises. Clancy Decl. ¶¶ 15, 17; see id.

2 ¶ 18 (photos of dark red bruises across Mr. Clancy’s forehead). Mr. Clancy was arrested and

3 transported to the Santa Rita Jail. Id. ¶¶ 20–21.

4

Plaintiffs also supply links to a tweet by the San Francisco Chronicle and a tweet by

5 Ronald Li, a reporter for the Chronicle. Kim Decl. ¶ 3(a) (link to a tweet by the San Francisco

6 Chronicle (“Chronicle Tweet”));4 id. ¶ 3(b) (link to a tweet by Roland Li (“Li Tweet”)).5 The

7 Chronicle’s tweet includes four photos. Chronicle Tweet. One shows a demonstrator staring at a

8 line of officers with a cloud of a substance that looks like smoke in the foreground. Id. Another

9 shows an officer forcibly arresting a protestor; in the background are other officers and protestors

10 and a cloud of a substance that looks like smoke. Id. Mr. Li’s tweet includes a video. Li Tweet.

11 At the beginning, there are flashes and noises that seem to be from the explosion of munitions. Id.

12 Several protestors face a line of officers, but they slowly retreat as a cloud of a substance that

13 looks like smoke expands towards them. Id. The tweet reads, “Tear gas used as Oakland protest

14 walks up Broadway.” Id.

15

4. Events on Saturday, August 29

16

Plaintiffs allege that Defendants again violated the Injunction on August 29 by deploying

17 chemical agents without justification, without warning, and in an unsafe manner; by kettling

18 peaceful demonstrators; by displaying their weapons to control demonstrators’ movements; and by

19 declaring the demonstration an unlawful assembly without justification. Mot at 4–5, 8–9. In

20 support of these allegations, Plaintiffs submit declarations by the following demonstrators: Mr.

21 Lapierre, Ms. Sorokin, Mr. Munevar, Danielle Gaito, and Katherine Sugrue. Lapierre Decl.;

22 Sorokin Decl.; Munevar Decl.; Gaito Decl. (dkt. 63-4); Sugrue Decl. (dkt. 63-8).

23

The demonstrators began with a candlelight vigil at Lake Merritt at the park across the

24 street from Grand Lake Theater. Sorokin Decl. ¶¶ 18, 20, 22; Munevar Decl. ¶¶ 8, 10–11; Gaito

25 Decl. ¶ 2; Sugrue Decl. ¶¶ 1–2. At the vigil, Ms. Gaito observed that “only a few officers were

26

27

4 San Francisco (@sfchronicle), TWITTER (Aug. 28, 2020, 9:53 PM), https://twitter.com/sfchronicle/status/1299570972169850880.

28

5 Roland Li (@roldandlisf), TWITTER (Aug. 28, 2020, 9:25 PM), https://twitter.com/rolandlisf/status/1299563796273324034.

10

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1 wearing masks, not all.” Gaito Decl. ¶ 8. Between 9:00 p.m. and 9:30 p.m., the demonstrators

2 marched north up Grand Avenue. Lapierre Decl. ¶ 5; Munevar Decl. ¶ 12; Gaito Decl. ¶¶ 9–10;

3 Sugrue Decl. ¶ 3. Officers were on both sides and behind the march “in a U shape.” Sorokin

4 Decl. ¶ 25. They were “pushing the march at the tail end and on both sides,” being “aggressive to

5 people who were slowly walking,” and telling demonstrators to “[w]alk faster or get out the way.”

6 Munevar Decl. ¶¶ 13, 15, 17, 18; see Gaito Decl. ¶ 12. Officers kettled demonstrators into a

7 residential neighborhood on Mandana Boulevard, making it “difficult to maintain physical

8 distance.” Sugrue Decl. ¶ 3; see Munevar Decl. ¶¶ 15, 19–20; Gaito Decl. ¶¶ 10, 12. Suddenly,

9 officers began “attacking” demonstrators; “running into” them; and “body checking” them.

10 Sugrue Decl. ¶ 4; Gaito Decl. ¶ 13; Lapierre Decl. ¶ 5. Mr. Lapierre was “knocked down,” and

11 Ms. Sugrue was shoved. Lapierre Decl. ¶ 5; Sugrue Decl. ¶ 3.

12

Without warnings audible to Mr. Lapierre or Ms. Gaito, OPD deployed cannisters with

13 chemical agents6 directly at and into the crowd of demonstrators. Lapierre Decl. ¶ 5; Munevar

14 Decl. ¶ 22–27; Gaito Decl. ¶ 14; Sugrue Decl. ¶ 4. Mr. Munevar specifically declared that he

15 “saw police shoot [a] smoke grenade at [him] at close range, about 20 yards away,” and it “hit

16 [him] in the head.” Munevar Decl. ¶¶ 23, 24; see id. ¶ 25 (photo of slightly discolored and slightly

17 raised skin on forehead). Ms. Gaito also declared that cannisters were “shot at protestors” and

18 “into the center of the crowd.”7 Gaito Decl. ¶ 14. Meanwhile, Ms. Sugrue observed officers hit

19 demonstrators with batons and throw her friend to the ground to arrest him. Sugrue Decl. ¶¶ 3–5.

20 OPD declared the demonstration an unlawful assembly, but continued to surround demonstrators,

21 making it difficult to leave. Munevar Decl. ¶¶ 31–36; Gaito Decl. ¶¶ 17–18. As Mr. Lapierre was

22 walking back toward the lake, “the police shoved [him] without warning” and hit him in the head

23 several times with an officer’s face shield, causing a mild concussion and an enduring headache.

24

25

6 The demonstrators described the dispersal devices as “smoke cannisters,” Lapierre Decl. ¶ 5; “tear gas and smoke grenades,” Munevar Decl. ¶ 22; “tear gas cannisters,” Gaito Decl. ¶ 14; anf

26

“smoke bombs and flash bombs,” Sugrue Decl. ¶ 4. 7 Ms. Gaito also saw “an OPD officer aim something that looked like a shotgun and shoot a

27

projectile at a man’s torso,” causing him to “f[all] to the ground.” Gaito Decl. ¶ 16. OPD officers then “grabbed him and took him into an unmarked white vehicle.” Id. Plaintiffs do not mention

28

this incident in their motion and, to the Court’s knowledge, it is not addressed anywhere else in the record.

11

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1 Lapierre Decl. ¶ 6.

2

Plaintiffs supply links to one tweet by an Oakland resident and another tweet by OPD.

3 Kim Decl. ¶ 3(c) (link to at tweet by Allison Brown (“Brown Tweet”));8 id. ¶ 3(d) (link to retweet

4 of a tweet by OPD (“First OPD Tweet”)).9 The resident’s tweet includes a video taken from her

5 balcony overlooking demonstrators marching and officers following on foot and in police

6 vehicles. Brown Tweet. At the beginning, there is a cloud of a substance that looks like smoke,

7 and there are noises that seem to be the explosion of munitions. Id. At the rear of the protest,

8 there is a line of demonstrators who are holding shields and walking backwards. Id. A line of

9 officers is walking forwards, and there are a series of clashes between the two lines. Id. The

10 officers stop moving, and the demonstrators keep backtracking, which allows a gap to form. Id.

11 A green laser pointer shines in the officers’ direction. Id. The tweet reads, “Tonight in #Oakland

12 on my street in #LakeMerritt @oaklandpoliceca fired #teargas on approximately 150 peaceful

13 protestors and arrested and cited 2 nonviolent civilians.” Id. OPD’s tweet also includes a video.

14 First OPD Tweet. It depicts officers declaring the demonstration an unlawful assembly and

15 instructing demonstrators to disperse northbound on Erie Street or eastbound on Mandana

16 Boulevard. Id. Finally, Plaintiffs submit a probable cause declaration filed by OPD which states

17 that officers “deployed smoke munitions in order to disperse the crowd” on August 29, 2020. PC

18 Decl.

19

5. Events on Friday, September 25

20

Finally, Plaintiffs allege that Defendants violated the Injunction on September 25 by

21 deploying chemical agents without justification, without warning, and in an unsafe manner. Mot.

22 at 5, 8–9. In support of these allegations, Plaintiffs supply links to an article by the San Francisco

23 Chronicle and to four tweets.

24

The Chronicle article includes “live updates” on the demonstrations. Kim Decl. ¶ 3(e)

25 (link to Michael Williams and Lauren Hernández, Live updates on Breonna Taylor case:

26

27

8 Allison Brown (@allisonbrown08), TWITTER (Aug. 29, 2020, 11:09 PM), https://twitter.com/alisonbrown08/status/1299952270864297985.

28

9 Oakland Police Department (@oaklandpoliceca), TWITTER (Aug. 29, 2020, 9:51 PM), https://twitter.com/oaklandpoliceca/status/1299932791254130688.

12

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1 Hundreds of demonstrators march through Oakland, S.F. CHRONICLE (Sep. 25, 2020, 11:21 PM),

2 https://www.sfchronicle.com/bayarea/article/Live-updates-on-Breonna-Taylor-case-Protest-

3 15592633.php) (“Chronicle Article”)). The relevant updates are as follows:

4

9:20 p.m. Police appear to deploy irritant at crowd: Police appeared to deploy an

5

irritant at the crowd at 14th and Harrison streets in Oakland shortly after protests moved construction barriers into the street.”

6 9:22 p.m. Oakland police says some in crowd “throwing bottles:” Oakland police

7

said on Twitter that some people in the swelling crowd marching

westbound on 14th street toward City Hall were “throwing bottles and

8

other objects” at officers. “Please be mindful when traveling in and

around our city,” police said. 9

10

9:55 p.m. One arrested in Oakland: At least one person was arrested by police in Oakland. About 15 minutes after deploying an irritant toward the

11

crowd, a group of police officers ran toward a protester and detained

them. Loud crowd-control devices and breaking glass could be heard as

12

police deployed more smoke.

13

11:15 p.m. ‘Multiple people’ arrested for assault, police say: Oakland police said on

14

Twitter that they arrested “multiple people arrested for assault on officers” on Friday night and deployed “minimal smoke” in response to

15

conduct from people in the crowd. Police said there were no reports of

damage to local businesses.

16

17 Id. Plaintiffs also submit two tweets from Michael Williams, one of the authors of the Chronicle

18 article. Kim Decl. ¶ 4(g) (“Second Williams Tweet”);10 id. ¶ 4(h) (“First Williams Tweet”).11 The

19 tweet from 9:29 p.m. includes a video in which demonstrators move quickly to avoid a cloud of a

20 substance that looks like smoke. First Williams Tweet. Two burning objects are seen in the

21 center of the street. Id. The tweet reads, “More gas deployed. Not sure if tear gas, but definitely

22 some sort of irritant. #Oakland.” Id. The 9:50 p.m. tweet includes a video in which officers and

23 demonstrators move quickly, and a cloud of a substance that looks like smoke begins to rise from

24 a munition on the street. Second Williams Tweet. A smoking object flies across the screen and 25 there are sounds that seem to be gas being emitted from a cannister, a glass bottling hitting the

26

27

10 Michael Williams (@michaeldamianw), TWITTER (Sept. 25, 2020, 9:50 PM), https://twitter.com/michaeldamianw/status/1309716852386324480.

28

11 Michael Williams (@michaeldamianw), TWITTER (Sept. 25, 2020, 9:29 PM), https://twitter.com/michaeldamianw/status/1309711701164482560.

13

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1 ground, glass shattering, and the explosion of a munition. Id. Officers arrest a demonstrator. Id.

2 The tweet reads, “First major confrontation, at least one arrest #Oakland.” Id. Lastly, Plaintiffs

3 submit a tweet by OPD, which reads as follows:

4

250+ people took part in tonight’s protest. The group was immediately violent

5

throwing bottles & cans at officers. OPD deployed minimal smoke. Multiple people arrested for assault on officers. No reports of damage to businesses. OPD continues

6

our efforts to protect our community.

7 Kim Decl. ¶ 3(f) (“Second OPD Tweet”).12

8

6. Requested Relief

9

In their motion, Plaintiffs requested that the Court “grant [their] Motion for Enforcement

10 and Modification of Preliminary Injunction and for Sanctions and Other Relief,” but their motion

11 did not describe any proposed modifications to the Injunction, and Plaintiffs did not submit a

12 proposed order with their motion as required by Civil Local Rule 7-2(c). Mot. at 9. At the order

13 of the Court, Plaintiffs later filed a proposed order on October 21, after Defendants filed their

14 opposition. See Prehearing Order (dkt. 68); Plaintiffs’ Proposed Order (dkt. 73). In their proposed

15 order, Plaintiffs request that the Court order Defendants to pay $100,000 in monetary sanctions

16 and that the Court make several modifications to Section V of the injunction.13 Plaintiffs’

17 Proposed Order.

18

19 12 Oakland Police Department (@oaklandpoliceca), TWITTER (Sept. 25, 2020, 11:13 PM),

20

https://twitter.com/oaklandpoliceca/status/1309737750866714624. 13 Plaintiffs’ proposed modifications are as follows: (1) modify Section V(1) to add “flashbang

21

grenades” and “stun grenades” to the list of items that OPD officers are prohibited from using; (2) modify Section V(2) to expressly include “hexachloroethane” as a chemical agent and to

22

expressly reference “CS Blast grenades” alongside “chemical agents” as items that OPD officers may use only in the specified circumstances and alongside “gas cannisters” as objects that must be

23

deployed at a safe distance from the crowd; (3) modify Section V(2) to replace “shall be deployed only when (a) there is an imminent threat of physical harm to a person or significant destruction

24

of property . . . ” with “shall be deployed only when (a) individuals are engaging in conduct that poses an immediate threat of loss of life or serious bodily injury to themselves, officers, or the

25

general public or substantial destruction of property which creates an immediate risk to the lives or safety of other persons . . . ”; (4) add a new Section V(3) to provide that Section V.H.5 of

26

Training Bulletin III-G applies to “CS Blast grenades and any similar devices that have an explosive or light and sound component”; (5) add a new Section V(4) to provide that Section

27

VI.F.2 of Training Bulletin III-G applies to “form-tipped munitions as well as ‘bean bags’ ” and to require officers to adhere to the October 2013 Chief’s Memorandum; and (5) to modify current

28

Section V(3) to replace references to “devices in Section V(2)” with “chemical agents.” Plaintiffs’ Proposed Order.

14

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1

D. Defendants’ Opposition and Evidence

2

In their opposition to Plaintiffs’ motion, Defendants argue that they have complied with

3 the Injunction and that “Plaintiffs’ conclusory claims are not backed by clear and convincing

4 evidence.” Opp’n (dkt. 69) at 1.

5

For support, Defendants submit a declaration by Michael Beaver, a lieutenant who serves

6 as Chief of Staff to the Chief of Police within OPD. See Beaver Decl. (dkt. 69-1). Lieutenant

7 Beaver was “on duty as a commander during protests” and “participated in crowd management”

8 on July 25, August 26, August 29, and September 25. Id. ¶ 4. He declares that “[f]or each event,

9 OPD attempted to communicate with apparent organizers and participants, hoping to facilitate

10 peaceful protests,” but “[t]hese individuals declined to communicate with OPD officers.” Id. ¶ 9.

11 Additionally, “OPD’s tactics on the dates referenced . . . did not include encircling the crowd”;

12 rather “OPD left egress routes for the crowd.” Id. ¶ 15. In some cases, however, “officers

13 surrounded individuals they were attempting to arrest.” Id. (italics added).

14

Lieutenant Beaver’s declaration’s is accompanied by numerous materials. First are copies

15 of electronic flyers for nighttime demonstrations in Oakland on the dates in question; the flyers

16 were circulated on social media websites such as Twitter and Instagram. Flyers (dkt. 69-2). In

17 their opposition, Defendants’ state that these flyers “discouraged ‘peace policing’ and ‘snitches.’ ”

18 Opp’n at 1. Second are various officers’ “crime reports,” which describe these officers’ use of

19 munitions and/or force during the demonstrations.14 See Keating Rpt. (dkt. 69-3); Jimenez Rpt.

20 (dkt. 69-4); Langlais Rpt. (dkt. 69–5); Gonzales Rpt. (dkt. 69-6); Brown Rpt. (dkt. 69-7); Alaura

21 Rpt. (dkt. 69-8); Au Rpt. (dkt. 69-9); Thurston Rpt. (dkt. 69-10). Third are six videos from

22 officers’ body-worn cameras. Aug. 26 Video (Ex. E); Aug. 28 Video (Ex. G); Aug. 29 Video (Ex.

23 K); Sept. 25-1 Video (Ex. M); Sept. 25-2 Video (Ex. N).15 Fourth is an e-mail chain of

24 contemporaneous operations reports made by officers in the field and officers and monitoring

25 video at the Emergency Activation Center on August 26, 2020. Operations Log (dkt. 69-11).

26

27

14 For ease of reference, the Court uses the ECF page numbering when citing the contents of these reports.

28

15 These videos are available at the following link: https://www.dropbox.com/sh/sew5qc7fdb78sjr/AAADvxA1ibzHROA1FQoCBsN7a?dl=+0.

15

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1

Defendants also reference two declarations submitted in support of the City’s cross-

2 motion, one by Officer David Pullen, who serves in OPD’s Information Technology unit, and

3 another by Micah Hinkle, the Deputy Director of Oakland’s Department of Economic &

4 Workforce Development. Pullen Decl. (dkt. 66-10); Hinkle Decl. (dkt. 66-11). Mr. Hinkle

5 explains that the Department of Economic & Workforce Development has been “assisting local

6 businesses, property owners, and tenants that have been impacted by vandalism and theft” during

7 the ongoing demonstrations.” Hinkle Decl. ¶ 2.

8

1. Events on Saturday, July 25

9

First, Defendants address a nighttime demonstration that occurred on Saturday, July 25—

10 although this demonstration occurred before the Court issued the Injunction on July 29 and

11 Plaintiffs do not address it in their motion. Opp’n at 1.

12

The demonstration began shortly before 8:00 p.m. and drew up to 600 participants at its

13 peak. Beaver Decl. ¶ 7. During the event, officers reported the following:

14

[C]rowd members shattered windows at the federal building, the Police

15

Administration Building, apartment buildings, and businesses; protestors who attempted to stop this activity and call for peace were intimidated by other crowd

16

members; a fire was set inside a county courthouse; crowd members threw rocks,

bottles, and fireworks at officers; they also pointed lasers at officers’ faces.

17

18 Id. While policing the demonstration, however, “OPD officers were at a distance from the crowd

19 when it traveled,” id., and, according to OPD records, OPD “deployed no smoke, chemical agent,

20 or less-lethal-impact munition,” id. ¶ 16.

21

2. Events on Wednesday, August 26

22

On August 26, another nighttime demonstration drew up to 700 participants after 8:00 p.m.

23 Beaver Decl. ¶ 8. Although “many people engaged in peaceful protest,” Defendants state that, “as

24 the record shows, this was far from a peaceful night.” Opp’n at 3.

25

First, Lieutenant Beaver declares that he and other officers “observed crowd members

26 break several apartment building and business windows; set fires, including at a courthouse and

27 construction site; and throw projectiles at officers.” Beaver Decl. ¶ 10. These activities are also

28 described in the e-mail chain of contemporaneous reports made by officers, and some are depicted

16

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1 in video footage supplied by Defendants. See generally Operations Log; Pullen Video (Pullen

2 Decl., Ex. A).16 Further, Mr. Hinkle declares that, on August 26, the Department of Economic &

3 Workforce Development received reports of “[s]everal fires, including a state courthouse and at a

4 construction site,” “[s]eventy punctured or broken building windows,” “[t]welve broken doors,”

5 and “theft and vandalism within businesses” at “local businesses and residential units, including

6 affordable housing.” Hinkle Decl. ¶ 5. As with the July 25 event, however, “OPD officers were at

7 a distance from the crowd when it traveled,” Beaver Decl. ¶ 10, and, according to OPD records,

8 OPD “deployed no smoke, chemical agent, or less-lethal-impact munition,” id. ¶ 17.

9

Second, the City submits video footage of “various incidents that occurred within and

10 around the protests” on August 26. Pullen Decl. ¶ 2; see Pullen Video. Although the footage does

11 not contain a time stamp, the clips are compiled in “chronological order.” Pullen Decl. ¶ 2. In the

12 clip that begins at one minute and 57 seconds, at the intersection of Harrison Street and Grand

13 Avenue, an officer who identifies herself as Officer Rhodes makes unlawful assembly

14 announcements over a public address system. Id. She states, “You have five minutes to disperse,

15 eastbound or northbound.” Id. In the background, demonstrators are walking east on Grand

16 Avenue, with officers following at a distance. Id. In the clip that begins at three minutes and two

17 seconds, at the intersection of Park View Terrace and Grand Avenue, the same officer makes more

18 unlawful assembly announcements over a public address system. Id. A line of officers walking

19 east on Grand Avenue come upon several trash cans that have been set ablaze and laid across

20 Grand Avenue. Id. In the clip that begins at three minutes and 46 seconds, at the intersection of

21 Lee Street and Grand Avenue, Officer Rhodes makes more unlawful assembly announcements

22 over a public address system. Id. She states, “You have two minutes to disperse, east or north.”

23 Id. In the background, demonstrators are walking east on Grand Avenue and a large object has

24 been set ablaze at the intersection of Perkins Street and Grand Avenue. Id.

25

Third, the Operations Log contains the following relevant entries. “[10:07 p.m.] Part of

26

27 16 This video is available at the following link:

28

https://www.dropbox.com/s/6kuipwa6fsjhmmo/ProtestVideoClips%2026Aug20%2020042337%20%281%29.mp4?dl=0.

17

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1 group is southbound on Harrison St[reet] and Grand Ave[nue]. Part of group is eastbound on

2 Grand Ave[nue]. TNT [i.e., Tactical Negotiations Team] requested to make unlawful assembly

3 announcements.” Operations Log at 4. “[10:09 p.m.] A debris field of trash cans and fires lit

4 across Grand Ave[nue] from the crowd going eastbound to block officers.” Id. at 3. “[10:23 p.m.]

5 Front [of group] is approaching Euclid [Avenue]. TNT is making continuous announcements.”

6 Id. “[10:53 p.m.] Someone threw a bottle towards officers at Grand Ave[nue].” Id. “[10:56

7 p.m.] TNT to make announcements, [Quick Reaction Force] to make arrests.” Id. “[10:57 p.m.]

8 Officers taking multiple bottles at Perkins [Street] and Belmont [Street].” Id. “[11:01] Arrests

9 being made at Belmont [Street and] Perkins [Street] and vehicle that was blocking officers

10 stopped.” Id.

11

Fourth, Defendants submit reports by Officers John Keating, Amanda Jimenez, and Sarah

12 Langlais. Keating Rpt.; Jimenez Rpt.; Langlais Rpt. Officer Jimenez’s report states that “[t]he

13 crowd was advised multiple times that their assembly was unlawful and subjects in the area would

14 be arrested if they failed to comply with the order to disassemble.” Jimenez Rpt. at 3; see Langlais

15 Rpt. at 3; Keating Rpt. at 3. Subsequently, around 11:00 p.m., officers observed the medic van,

16 which had “intentionally block[ed] and slow[ed] OPD officers and vehicles,” Keating Rpt. at 3,

17 and which had “consistently dr[iven] in the area with the crowd of protestors that was ordered to

18 disperse,” Jimenez Rpt. at 3. Officer Langlais saw “persons inside the van . . . handing out shields

19 and other unknown supplies” and other persons “throwing fireworks at officers after consulting

20 with persons inside the van.” Langlais Rpt. at 3; see Keating Rpt. at 3; Jimenez Rpt. at 3.

21 Additionally, Officer Keating’s report states that there were “unknown persons wearing black and

22 tactical gear hanging off the van,” and “[p]ersons in the crowd appeared to be coordinating with

23 the van, using the van as cover to throw objects at officers.” Keating Rpt. at 3.

24

At the intersection of Belmont Street and Perkins Street, Officer Jimenez, Officer Langlais,

25 and other officers ordered the van’s driver, Mx. Hansen, to stop, but Mx. Hansen “ignored [their]

26 commands.” Jimenez Rpt. at 4; see Langlais Rpt. at 3; Keating Rpt. at 3. Officer Jimenez

27 “observed [Mx. Hansen] continue to use her [sic] foot to push down on the gas and continue to

28 attempt to drive away,” Jimenez Rpt. at 4, and Officer Langlais observed Mx. Hansen “beg[in] 18

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1 steering their vehicle in an apparent attempt to collide with parked vehicles,” Langlais Rpt. at 3.

2 “Due to other officers in the area, near and in front of [Mx. Hansen’s] vehicle,” Officer Jimenez

3 “elected to grab onto [Mx. Hansen’s] left leg with both [her] arms and pull [Mx. Hansen] out of

4 the vehicle,” Jimenez Rpt. at 4, while Officer Langlais “took hold of [Mx. Hansen’s] left arm” and

5 “exerted force to pull [Mx. Hansen] away from the driver’s seat,” Langlais Rpt. at 3. Officers

6 Jimenez and Langlais attempted to handcuff Mx. Hansen, with the former holding Mx. Hansen’s

7 left wrist and the latter holding their right wrist, but Mx. Hansen “resist[ed]” and “ignored . . .

8 commands.” Jimenez Rpt. at 4; see Langlais Rpt. at 4. At that point, other officers “conducted a

9 takedown.” Langlais Rpt. at 3; see Jimenez Rpt. at 4. Mx. Hansen was arrested for resisting

10 peace officers and evading police. Jimenez Rpt. at 4. Meanwhile, other officers also detained

11 “persons hanging outside and riding inside the van.” Keating Rpt. at 3. Officer Keating “elected

12 to detain [Ms. Sorokin] who was with the group in the van actively blocking OPD throughout the

13 protest . . . and for failing to leave after unlawful assembly was declared . . . .” Id. Ms. Sorokin

14 “was compliant and offered no resistance” and was ultimately “released without further action.”

15 Id.

16

Fifth, Defendants have submitted video footage of the incident—apparently from Officer

17 Langlais’s body-worn camera, which was “knocked from [her] body to the ground” during the

18 “struggle” with Mx. Hansen. Langlais Rpt. at 3; see August 26 Video. The following can be

19 discerned. According to the timestamp, the footage begins at 10:56 p.m. Id. A voice yells “move

20 up, move up,” and officers suddenly begin to sprint. Id. After they sprint for more than 20

21 seconds, the medic van comes into view. Id. While officers close in on the van, the driver is

22 commanded to “stop the van.” Id. As the van continues to slowly roll forward, officers open the

23 driver door. Id. The driver says, “There’s nothing in here”; and an officer commands the driver to

24 “get out of the car.” Id. Officers then forcibly pull the driver from the vehicle. Id. One officer

25 (apparently, Officer Jimenez) holds the driver’s left arm and another officer (apparently, Officer

26 Langlais) holds the driver’s right arm. Id. The camera falls to the ground. Id.

27

28 19

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1

3. Events on Friday, August 28

2

On August 28, the City had information that “there would be a protest that night involving

3 the same organizers or participants as two nights earlier.” Beaver Decl. ¶ 12. That night, a

4 demonstration drew hundreds of participants after 8:00 p.m. Id. ¶ 8; see Gonzales Rpt. at 2.

5

First, Defendants state that OPD’s prior practice of keeping a distance from the crowd

6 when it traveled had “prevented officers from making targeted arrests and minimizing harm to the

7 community.” Opp’n at 2. So, according to Lieutenant Beaver, OPD “deployed more officers” on

8 August 28 and “adjusted its tactics” in order to “facilitate free speech and minimize further harm

9 to the community.” Beaver Decl. ¶¶ 11, 13. Officers “stay[ed] closer to the crowd and

10 identif[ied] and arrest[ed] individuals who were committing crimes,” but “[w]hen the crowd

11 stopped moving, officers shrunk their presence and stood at a distance from the crowd.” Id. ¶ 13.

12 At the end of the night, there was “substantially less damage to the community than after the July

13 25 and August 26 protests.” Id.

14

Second, Defendants submit reports by Sergeant Patrick Gonzales and Officer Randall

15 Brown. Gonzales Rpt.; Brown Rpt. According to these reports, Sergeant Gonzales deployed

16 smoke at the intersection of 15th Street and Franklin Street around 9:08–9:10 p.m., and other

17 officers deployed tear gas and smoke at the intersection of 24th Street and Broadway around 9:15–

18 9:20 p.m.17 See generally Gonzales Rpt.; Brown Rpt.

19

Between 8:17 p.m. and 8:30 p.m., a crowd of protestors marched westbound on 14th Street

20 and, once they reached the Federal Building, southbound on Clay Street. Gonzales Rpt. at 3;

21 Brown Rpt. at 3. Sergeant Gonzales’s “Tango Team, accompanied by the rest of Bravo company,

22 formed a skirmish line behind the crowd and began to follow on foot in order to deter members in

23 the crowd from committing acts of vandalism.”18 Gonzales Rpt. at 3. At 9:00 p.m., Captain

24

25 17 Although Defendants do not address these deployments of tear gas and smoke in their

26

opposition, they are recorded in Sergeant Gonzales’ report. Gonzales Rpt. at 3. The Court also observes that these deployments appear to be depicted in the video included in Mr. Li’s tweet and

27

one of the photos included in the Chronicle’s tweet. See Li Tweet; Chronicle Tweet. 18 Officer Au’s report explains that a “Tango Team is a team consisting of at least . . . [three]

28

officers and . . . [one] supervisor (Sergeant or above) specifically designated to utilize specialty impact and chemical munitions during crowd control events.” Au Rpt. at 3.

20

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1 Bolton “directed Charlie company to trail the protesters and help create the ‘U formation’ around

2 the march.” Brown Rpt. at 4. Sergeant Gonzales observed individuals spray painting graffiti on

3 the Federal Building and “pointing red and green laser lights in the faces of officers,” which can

4 “cause permanent retinal damage and is a violation of [the California Penal Code].” Gonzales

5 Rpt. at 3; see Brown Rpt. at 3–4 (multiple reports of a subject pointing a laser at officers).

6

Sergeant Gonzales describes the incident at the intersection of Franklin Street and 15th

7 Street as follows:

8

At approximately [9:10 p.m.], we were in the 1500 Block of Franklin Street when

9

officers moved in to arrest two individuals responsible for pointing laser lights in the faces of officers. As officers attempted to detain the two subjects, other individuals

10

in the crowd turned and ran towards the officers making the detention. This was a

clear attempt to interfere and remove the two suspects from police custody (violation

11

of [the California Penal Code]). I deployed one (1) Saf-Smoke Han Ball munition

in a clear area, on the street, next to the crowd attempting to free the two suspects

12

from police custody. I did this to stop their action, to deter others from joining in,

13

and to create distance between the crowd and the officers. The munition was effective, the crowd moved back, and the two individuals were safely detained. I

14

attempted to recover the spent munition; however, it was picked up by a member of

the crowd.19

15

16 Gonzales Rpt. at 3. Additionally, Lieutenant Beaver declares that, according to OPD’s records,

17 “no chemical agent was deployed at Franklin Street and 15th Street—or within the immediate

18 vicinity.” Id. ¶ 18 (italics added).

19

Third, Defendants have submitted video footage of the incident from an unidentified

20 officer’s body-worn camera. Aug. 28 Video. The following can be discerned. According to the

21 timestamp, the video begins at 9:08 p.m. Id. Officers walk closely behind demonstrators,

22 northbound on Franklin Street, while loud music plays. Id. On the north side of the intersection

23 with 15th Street, officers form a line on the west side of the street and instruct demonstrators to

24

25

19 Similarly, Officer Brown’s report states: [9:08 p.m.], Officers arrested a subject who was pointing a laser at Officers. The

26

arrest was made in the 1500 [block] of Franklin St[reet]. [Sergeant] Gonzales deployed a hand thrown smoke han-ball in the area during the arrest. Multiple

27

subjects from the crowd began to encircle officers as they were making the arrest. The smoke created enough distance between the protestors and the officers to allow

28

the officers to make the arrest safely and without further incident. Brown Rpt. at 4.

21

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1 “back up.” Id. The music quiets, and it sounds like gas is being dispersed from a cannister. Id. A

2 cloud of a substance that looks like smoke appears, and demonstrators move away. Id. An

3 officer’s voice states, “One smoke round was deployed while we were making an arrest.” Id.

4 Officers and demonstrations resume marching. Id.

5

The incident at the intersection of 24th Street and Broadway is also described in both

6 officers’ reports. Between 9:15 and 9:20 p.m., the officers responded to a report of an individual

7 with a bullhorn who was interfering with OPD’s “Video Team.” Gonzales Rpt. at 3; Brown Rpt.

8 at 4. Officer Brown “moved towards” the suspect to make an arrest; when “[the suspect] started to

9 run away,” Officer Brown “grabbed him by the back of his hoodie to stop his flight,” but he

10 “continued to pull away . . . and tried to run.” Brown Rpt. at 4. After other officers grabbed the

11 suspect, demonstrators “began to encircle [the officers],” id., and “began attacking officers,”

12 Gonzales Rpt. at 4. Officer Brown deployed one “smoke han-ball on the west sidewalk in clear

13 area.” Brown Rpt. at 4; see Gonzales Rpt. at 4. Sergeant Gonzales observed other officers

14 “deploy munitions in response”; afterwards, “Officer Albino advised [Sergeant Gonzales] that he

15 had deployed one . . . CS Blast Munition,” and Sergeant Gonzales “recovered three expended Saf-

16 Smoke Han-Bal munitions from the street.” Gonzales Rpt. at 4.

17

At this time, Officer Brown noticed other officers “on the ground attempting to arrest a

18 resisting suspect.” Brown Rpt. at 4. A suspect later identified as Mr. Clancy was “hitting one

19 officer in the back with his hands and a jacket that he was holding.” Id. Officer Brown

20 “immediately pursued Clancy on foot.” Id. Mr. Clancy “stopped hitting the officers and began to

21 run away,” but “tripped over the center median.” Id. Officer Brown caught up and “used both of

22 [his] hands and pushed Clancy on his upper back, causing him to fall to the ground face first.” Id.

23 When “Clancy tried to get back to his feet,” Officer Brown “held him on the ground with both of

24 [his] hands near his upper back and head area.” Id. Other officers handcuffed Mr. Clancy, who

25 was arrested for battery on a peace officer and resisting arrest. Id.

26

4. Events on Saturday, August 29

27

On August 29, a demonstration drew up to 200 participants after 8:00 p.m. Beaver Decl.

28 ¶ 8; see Au Rpt. at 4. OPD believed that “the same organizers or participants” were involved, and 22

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1 it used the same tactics as it did to police the August 28 demonstration. Beaver Decl. ¶ 14. Again,

2 there was “substantially less damage to the community than after the July 25 and August 26

3 protests.” Id.

4

First, Defendants submit reports by Sergeant Brian Alaura and Officer K. Au. Alaura Rpt.;

5 Au Rpt. Early in the evening, the officers were informed that demonstrators were planning on

6 “utilizing shields as a tactic against Officers.” Au Rpt. at 3; see Alaura Rpt. at 3. Around

7 7:48 p.m., approximately ten demonstrators with shields gathered at the Pergola at Lake Merritt,

8 and around 7:56 p.m., the Tactical Negotiations Team “attempted to make contact” with them, but

9 they “refused to cooperate.” Au Rpt. at 4. The group subsequently “practiced their movement[s]

10 [and] tactics,” and a speaker announced that they were “actively trying to recruit more people to

11 carry shields.” Id.; see Alaura Rpt. at 4. Around 9:25 p.m., the crowd began marching

12 northbound on Grand Avenue; around 9:35 p.m., some demonstrators within the crowd pointed

13 lasers at officers and others were “armed with sticks.” Au Rpt. at 4. “Officers formed a skirmish

14 line and followed the crowd. The intent was to maintain close distance in order to ensure no

15 violence or vandalism occurred.” Id.

16

Around 9:36 p.m., the crowd turned east on Mandana Boulevard. Au Rpt. at 4. Around

17 9:40 p.m., demonstrators “formed a line of shields facing towards Officers” and began

18 “intentionally walking at a slower pace to separate Officers from the majority of the crowd.” Id.;

19 see Alaura Rpt. at 4. The officers believed that this was a tactic to “prevent Officers from

20 identifying any subjects who intended to commit violations acts towards Officers and/or

21 vandalism.” Au Rpt. at 4; see Alaura Rpt. at 4. Despite orders to move out of the way, the

22 demonstrators refused; some “push[ed] officers with their shields,” Alaura Rpt. at 3; see Au Rpt.

23 at 4–5, while others “us[ed] lights to prevent Officers from seeing,” Au Rpt. at 5. Because this

24 part of the street was uphill, it “gave the crowd and shield holders an advantage over officers.”

25 Alaura Rpt. at 4. Sergeant Alaura directed officers to “pull” the shields’ holders to get them out of

26 the way, but some demonstrators began “grabbing onto officers, in an apparent attempt to release

27 shield holders” and others threw objects at officers. Id.

28

Sergeant Alaura “deployed one Hanball smoke in order to distract the members of the

23

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1 crowd, who were attacking officers, so that [the officers] could gain an advantage. [He] rolled the

2 munition behind the shield holders which began releasing smoke.” Id. “Based on the immediate

3 threat of multiple subjects utilizing shields to push [and] strike Officers, the extreme close

4 proximity between the violent crowd [and] officers, [and] multiple subjects utilizing blinding

5 lights to prevent Officers from seeing which would prevent Officers from protecting themselves,”

6 Officer Au also “elected to deploy one . . . SAF-Smoke Han-Ball . . . directly in front of [him] on

7 the ground.” Au Rpt. at 5; see Alaura Rpt. at 4. When the officers continued eastbound on

8 Mandala Boulevard, Officer Au “observed a SAF-Smoke Han-Ball munition thrown back towards

9 the Officers,” as well as “multiple large glass bottles.” Id.; see Alaura Rpt. at 4. Consequently,

10 Officer Au then deployed one “CS Blast” in an area where he “did not see anyone who may have

11 been injured as a result of [the deployment].” Au Rpt. at 5; see Alaura Rpt. at 4. The deployment

12 “appeared to have a positive effect,” as Officer Au “did not see any additional dangerous items

13 being thrown.” Au Rpt. at 5. According to Officer Au’s report, at 9:48 p.m., the Tactical

14 Negotiations Team began making unlawful assembly announcements over a public address

15 system. Id. at 6. “Clear directions were given to the crowd to disperse by leaving [eastbound] on

16 Mandana [Boulevard] and [northbound on] Erie St.” Id.

17

Second, Defendants have submitted video footage of the incident—apparently from

18 Sergeant Alaura’s body-worn camera. Aug. 29 Video. The following can be discerned.

19 According to the timestamp, the video begins at 9:42 p.m. Id. A line of demonstrators holding

20 shields faces a line of officers. Id. One officer orders the demonstrators to “move back slowly”

21 and another orders the demonstrators to “back the fuck up”; as the demonstrators walk backwards,

22 the officers walk forwards. Id. The two lines clash, and the officers push against the shields. Id.

23 According to the time stamp, at 9:43:15 to 9:43:26, one device flies over the lines and Sergeant

24 Alaura rolls another device under the lines. Id. A cloud of a substance that looks like smoke

25 appears, and Sergeant Alaura yells, “Smoke deployed, smoke deployed.” Id. There is a noise that

26 sounds like a glass bottle shattering and officers’ voices yell, “Bottle, bottle.” Id. At 9:43:39,

27 another officer appears to throw an object over the lines and there is a flash and a loud bang. Id.

28 The two lines make contact; the officers push against the shields again; and Sergeant Alaura yells, 24

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1 “Pull ’em back.” Id. Lights—apparently from demonstrators’ headlamps—shine in officers’ eyes,

2 and an officer pulls a shield from away from a demonstrator. Id. An officer yells, “Get out of the

3 way or you’re gonna be arrested.” Id. At 9:44:30, another officer (presumably Officer Au)

4 informs Sergeant Alaura, “One smoke and one blast, Sergeant.” Id.

5

The officers stop moving, but demonstrators keep backtracking, which allows a gap to

6 form. Id. Demonstrators chant, “Who keeps us safe? We keep us safe!” Id. A green laser

7 pointer shines in the officers’ direction. Id. The officers begin moving again, with lights and the

8 laser shining in their direction. Id. At 9:47:02, the lines again clash; Sergeant Alaura yells, “Get a

9 smoke, smoke,” and a cloud of a substance that looks like smoke appears. Id. Sergeant Alaura

10 makes a takedown arrest of an individual for “rushing another officer,” and other officers are

11 conducting a separate arrest in the background. Id. At 9:48:01, the demonstration is declared an

12 unlawful assembly and demonstrators are ordered to disperse over a public address system. Id.

13 Sergeant Alaura and other officers discuss a demonstrator who threw a munition “back at [them].”

14 Id.

15

5. Events on Saturday, September 25

16

On September, a demonstration drew up to 250 participants after 8:00 p.m. Beaver Decl.

17 ¶ 8. Again, OPD believed that “the same organizers or participants” were involved, and it used

18 the same tactics as it did to police the August 28 demonstration. Id. ¶ 14. And again, there was

19 “substantially less damage to the community than after the July 25 and August 26 protests.” Id.

20

First, Defendants submit a report by Officer T. Thurston. Thurston Rpt. Around

21 8:50 p.m., a crowd gathered at Lake Merritt Amphitheater and began marching. Id. at 2. While

22 the crowd was marching near 14th Street and Madison Street, demonstrators “began moving

23 orange traffic barricades behind them to block [officers’] movement.” Id. Some demonstrators

24 threw items at officers, including “unopened, pressurized, full soda cans.” Id. at 3. At that time,

25 Officer Thurston observed Sergeant Alaura “deploy a smoke han-ball munition,” which “land[ed]

26 in a safe area,” but a demonstrator picked it up and “thr[ew] it hard directly at Officers, in an

27 apparent attempt to hit an Officer.” Id. While officers were detaining the suspect, “several

28 members of the crowd moved towards the Officer’s [sic] backs, in an apparent attempt to prevent 25

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1 Officer’s [sic] from detaining the subject.” Id. While Officer Thurston was providing security, he

2 saw another smoke han-ball munition deploy, which “helped to encourage the crowd away from

3 Officers.” Id. Subsequently, at the area of 14th Street and Harrison Street, officers recognized a

4 suspect “with an arrest warrant.” Id. As the officers detained that suspect, Officer Thurston “was

5 tasked with protecting those officers.” Id. Meanwhile, several officers were detaining another

6 suspect in a large crowd, and Officer Thurston “heard glass break close by.” Id. As instructed by

7 Sergeant Alaura, he “deploy[ed] a smoke SKAT-shell . . . . south of the crowd, clear of any

8 protestors.” Id. The deployment appeared to be effective because “the majority of the crowd

9 fled . . . away from where the Officers detained the individuals.” Id.

10

Second, Lieutenant Beaver declares that, according to OPD’s records, “no chemical agent

11 was deployed on September 25.” Beaver Decl. ¶ 19 (italics added).

12

Third, Defendants have submitted two videos; the first is from an unidentified officer’s

13 body-worn camera, Sept. 25-1 Video, and second is apparently from Sergeant Alaura’s body-worn

14 camera, Sept. 25-2 Video. In the first video, which begins at 9:24 p.m. according to the

15 timestamp, officers are walking behind and around demonstrators. Sept. 25-1 Video. Officers

16 suddenly rush into the crowd and grab a demonstrator. Id. There is commotion among officers

17 and demonstrators; a demonstrator grabs the arm of the officer wearing the body camera, but then

18 backs away immediately; and a cloud of a substance that looks like smoke appears. Id. Two

19 burning objects are seen on the street. Id. The officer wearing the body camera says, “1400 block

20 of Jefferson; 2125 hours.” Id.

21

In the second video, which begins at 9:49 p.m. according to the timestamp, officers are

22 again walking behind and around demonstrators. Sept. 25-2 Video. Again, the officers suddenly

23 rush into the crowd and grab a suspect. Id. There is the is a noise that seems to be the deployment

24 of munitions, and a cloud of a substance that looks like smoke appears. Id. A smoking object

25 flies towards officers who then rush towards a second suspect. Id. A glass bottle crashes on the

26 street near the officers. Id. Sergeant Alaura yells, “Thurston, Thurston, deploy!” Id. There is a

27 large bang. Id. Sergeant Alaura again yells, “Get one more ready!” Id. Sergeant Alaura then

28 reports, “Alpha Tango, launch smoke deployed, 1400 block Harrison, during an arrest.” Id. He 26

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1 continues, “Alpha Tango, be advised, they’re throwing larger bottles at us as well as the smoke

2 munition.” Id.

3

E. City’s Cross-Motion to Modify

4

1. City’s Motion

5

In its cross-motion, the City stated that, after OPD informed its mutual aid partners of the

6 Injunction, the police agencies of Alameda County, Freemont, San Leandro, Union City, Newark,

7 and San Mateo County independently responded that they would no longer provide mutual aid

8 during demonstrations. Cross-Mot. at 1–5; see Yu Decl. (dkt. 66-2) ¶¶ 4–5. Excluding the

9 California Highway Patrol, which addresses activity on state highways, these agencies “supplied

10 approximately 55% of the mutual aid officers on May 29, 2020 and 40% of the mutual aid officers

11 on May 30, 2020.” Yu Decl. ¶ 6. Meanwhile, “[n]o agency ha[d] notified [OPD] that it would

12 provide its officers as mutual aid for protests and demonstrations.” Id. at ¶ 7.

13

The City is currently preparing for “significant, extended protests next month.” Cross-

14 Mot. at 8. Consequently, the City requested that the Court modify the Injunction (1) to strike or

15 suspend its mutual aid section (Section VI(i)–(vi)) to allow “Training Bulletin III-G . . . as it

16 stands to govern mutual aid requests,” and (2) to clarify that the Injunction does not bind OPD’s

17 mutual aid partners.20 Id. at 1, 8–9; see Status Rpt. at 1.

18

2. Plaintiffs’ Opposition

19

In their opposition, Plaintiffs asserted that that state law requires mutual aid agencies to

20 (1) render mutual aid when such aid is requested and (2) to follow the local policies that govern

21 the host agency while rendering mutual aid. Opp’n to Cross Mot. (dkt. 67) at 2, 4–11. Plaintiffs

22 therefore contended that the mutual aid agencies were required to provide mutual aid in

23 accordance with the terms of the Injunction and Training Bulletin III-G. Id.

24

25

20 In its cross-motion, the City alternatively requested that the Court issue an order concluding that (1) a “memorandum of agreement” between OPD and its mutual aid partners would not

26

violate the Injunction and (2) the Injunction does not bind OPD’s mutual aid partners. Cross-Mot. at 1, 9. In a subsequent status report and at the hearing, the City did not mention this alternate

27

request—making clear that the City preferred modifications to the Injunction. See generally Status Rpt. Because the Court has partially granted the City’s request to modify the Injunction,

28

the Court does not address the parties’ arguments regarding the City’s alternative request. See generally Amended Injunction.

27

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1

In support of their proposition that mutual aid agencies are required to render mutual aid

2 when such aid is requested, Plaintiffs primarily relied on California Government Code sections

3 8616 and 8617. Opp’n to Cross-Mot. at 2, 6. Section 8616, which governs the rendering of

4 mutual aid during “any state of war emergency or state of emergency,” provides, in relevant part,

5 that “when the need arises for outside aid in any county, city and county, or city, such aid shall be

6 rendered in accordance with approved emergency plans” and that “[i]t shall be the duty of public

7 officials to cooperate to the fullest possible extent in carrying out such plans.” Section 8617,

8 which governs the rendering of mutual aid “[i]n periods other than a state of war emergency, a

9 state of emergency, or a local emergency,” provides that “state agencies and political subdivisions

10 have authority to exercise mutual aid powers in accordance with the Master Mutual Aid

11 Agreement and local ordinances, resolutions, agreements, or plans therefor.” Regarding the

12 former, Plaintiffs read the phrases “such aid shall be rendered” and “duty . . . to cooperate” to

13 mean that mutual aid must be provided “when the need arises.” Opp’n to Cross-Mot. at 6. With

14 respect to the latter, Plaintiffs argued that any mutual aid rendered “must conform to the Master

15 Mutual Aid Agreement and local rules.”21 Id. Plaintiffs also referenced the following provisions

16 of the Master Mutual Aid Agreement:

17

Each party agrees. . . to render services to each and every other party to the agreement

18

to prevent and combat any type of disaster in accordance with the duly adopted mutual aid operational plans, whether heretofore or hereafter adopted, detailing the

19

method and manner by which such . . . services are to be made available and

furnished, . . . provided, however, that no party shall be required to deplete

20

unreasonably its own . . . services in furnishing such mutual aid.

21

It is expressly understood that the mutual aid extended under this agreement and the

operations plans adopted pursuant thereto shall be available and furnished in all cases

22

of local peril or emergency and in all cases in which a STATE OF EXTREME

23

EMERGENCY has been proclaimed.

24 Blue Book at 50, 51. Because OPD’s mutual aid partners had not claimed that rendering mutual 25 aid would unreasonably deplete their own services, Plaintiffs argued that they were withholding 26

27 21 The California Disaster and Civil Defense Master Mutual Aid Agreement (“Master Mutual Aid

28

Agreement”) is located on pages 50 through 55 of the Law Enforcement Mutual Aid Plan (2019) (“Blue Book,” dkt. 50-1).

28

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1 mutual aid in violation of these provisions. Opp’n to Cross Mot. at 1, 7.

2

Further, in support of their proposition that mutual aid agencies must follow the local

3 policies that govern the host agency while rendering mutual aid, Plaintiffs primarily relied on the

4 following authorities. Opp’n to Cross Mot. at 4–5. California Government Code section 8618

5 states: “Unless otherwise expressly provided by the parties, the responsible local official in whose

6 jurisdiction an incident requiring mutual aid has occurred shall remain in charge at such incident,

7 including the direction of personnel and equipment provided him through mutual aid.” Plaintiffs

8 contended that the phrase “[u]nless otherwise expressly provided” did not apply because there

9 were no prior agreements between the City and its mutual aid partners that would have modified

10 the general rule of the section. Opp’n to Cross-Mot. at 5 (citing Opinion at 19). Further, as

11 Plaintiffs noted, the Master Plan also provides that “[i]t is expressly understood that . . . ‘[t]he

12 responsible local official in whose jurisdiction an incident requiring mutual aid has occurred shall

13 remain in charge at such incident including the direction of such personnel and equipment

14 provided him through the operations of such mutual aid plans.” Blue Book at 51. Based on these

15 provisions and California Government Code section 8617 (discussed in the previous paragraph),

16 Plaintiffs argued that, in rendering mutual aid, OPD’s mutual aid partners were required to abide

17 by the local policies that governed OPD—including the Court’s Injunction and Training Bulletin

18 III-G. Id. at 6.

19

Finally, Plaintiffs argue that the City’s proposal—suspending the mutual aid section of the

20 Injunction—would violate the Mutual Aid section (Section IX) of Training Bulletin III-G. Id. at

21 8. That section provides that the “Incident Commander shall be responsible for ensuring to the

22 extent possible” that, among other things, mutual aid agencies: “(1) Are briefed and in agreement

23 with OPD’s Unity of Command structure under which only OPD Commanders may authorize the

24 use of less lethal munitions for crowd control and dispersal; (2) Are briefed on OPD’s policy on

25 prohibited weapons and force; [and] (3) Do not bring or use weapons or force that is prohibited

26 under OPD’s policy.” Training Bulletin III-G, § IX.1–3.

27

3. Parties’ Status Report

28

Prior to the hearing, the Court ordered the parties to meet and confer; the City to meet and

29

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1 confer with its mutual aid partners; and the City to file a status report. Prehearing Order (dkt. 68).

2 The City informed the Court that their mutual aid partners continued to have various concerns

3 about the Injunction’s mutual aid section. Status Rpt. (dkt. 68). The City again requested that that

4 the Court issue “a temporary suspension” of the Injunction’s mutual aid section and “expressly

5 stat[e] that the preliminary injunction does not apply to mutual aid agencies or their officers during

6 that time period.” Id. at 1. If the Injunction “continue[d] to apply to mutual aid agencies or their

7 officers,” the mutual aid agencies’ decision to withhold aid was “unlikely to change.” Id.

8

In the status report, the City stressed that mutual aid is voluntary, citing OPD General

9 Order L-3’s definition of mutual aid as “the voluntary of sharing of personnel and resources when

10 an agency cannot sufficiently deploy its own resources to respond to an unusual occurrence.” Id.

11 at 2 (quoting Gen. Order L-3 (dkt. 50-3), § II.A). While the Injunction “require[d] mutual aid

12 officers to follow OPD policies and command structure” and OPD to “ensure that they in fact do

13 so,” the City argued that no policy—including Training Bulletin III-G—“grant[ed] OPD authority

14 over mutual aid agencies.” Id. To the contrary, the City argued, General Order L-3 provides that

15 mutual aid “requests and deployments shall be made in accordance with” the Law Enforcement

16 Mutual Aid Plan (2019) (“Blue Book,” dkt. 50-1) and the Law Enforcement Guide for Emergency

17 Operations (2019) (“Red Book,” dkt. 50-2), and these documents state that mutual aid officers

18 should follow their own agencies’ policies and command structure. Id. at 3 (citing Gen. Order

19 L-3, § II). Specifically, the Blue Book provides:

20

Unless otherwise expressly provided, or later agreed upon, the responsible local

21

law enforcement official of the jurisdiction requesting mutual aid shall remain in charge. It is operationally essential that the local law enforcement official

22

coordinate all actions with responding law enforcement agencies to ensure an

effective application of forces. [Cal. Gov. Code § 8618.]

23

The integrity of responding forces and the policies and procedures of their

24

departments must be maintained. Exceptions will require approval of the

concerned department. Refer to the [Red Book] for further policy guidance. 25

26 Id. (quoting Blue Book at 18) (italics added by the City). And, in turn, the Red Book states: 27 “Individual officers are bound by use of force policies of their employing agency. However, use 28 of less-lethal devices (e.g., chemical agents, Tasers, ARWEN, Sting balls, or Stun bags) should be
30

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1 used decisively when the situation dictates.” Id. (quoting Red Book at 58) (City’s italics

2 removed). The City asserted, “These are the terms our region’s agencies intend to govern their

3 rendering of mutual aid.” Id.

4

The City acknowledged that Training Bulleting III-G “requires OPD to keep its officers on

5 the frontlines to the extent possible” and to “make its best effort to brief mutual aid agencies on

6 OPD’s policies and to request that these agencies do not bring or use tools prohibited under OPD

7 policy.” Id. (citing Training Bulletin III-G, § 9). But it emphasized that “OPD has no power to

8 force mutual aid officers to comply with its tactics and toolboxes to which they have not been

9 trained”; it only has the power to “decline mutual aid—at the risk of officer and public safety.” Id.

10 at 4.

11

In the Status Report, Plaintiffs observed that the Injunction “track[ed] the language of

12 [Training Bulletin III-G] nearly verbatim, with slight alterations in that the Court command[ed]

13 that the OPD Incident Commander fulfill his or her [mutual aid] obligations . . . ‘unless exigent

14 circumstances prevent the fulfillment of these obligations’ rather than ‘to the extent possible.’ ”

15 Id. at 5 (quoting Injunction, § VI and Training Bulleting III-G, § IX). In other words, the

16 Injunction only directed OPD to fulfill its obligations under Training Bulletin III-G. Id. Finally,

17 Plaintiffs restated their view that “[t]he rendering of mutual aid is mandatory when the need for

18 such aid arises.” Id.

19

III. ANALYSIS

20

A. Plaintiff’s Motion to Enforce

21

1. Legal Standards

22

“ ‘Civil contempt . . . consists of a party’s disobedience to a specific and definite court

23 order by failure to take all reasonable steps within the party’s power to comply.’ ” Inst. of

24 Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014)

25 (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.

26 1993)). “ ‘The standard for finding a party in civil contempt is well settled: The moving party has

27 the burden of showing by clear and convincing evidence that the [nonmoving party] violated a

28 specific and definite order of the court. The burden then shifts to the contemnors to demonstrate 31

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1 why they were unable to comply.’ ” FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th

2 Cir. 1999) (quoting Stone v. City & Cty. of S.F., 968 F.2d 850, 856 n.9 (9th Cir. 1992)).

3 “ ‘Substantial compliance’ with the court order is a defense to civil contempt, and is not vitiated

4 by ‘a few technical violations’ where every reasonable effort has been made to comply.” Dual-

5 Deck Video Cassette Recorder, 10 F.3d at 695 (quoting Vertex Distributing v. Falcon Foam

6 Plastics, Inc., 689 F.2d 885, 891 (9th Cir. 1982); see also General Signal Corp. v. Donallco, Inc.,

7 787 F.2d 1376, 1378-79 (9th Cir. 1986) (“If a violating party has taken ‘all reasonable steps’ to

8 comply with the court order, technical or inadvertent [sic] violations of the order will not support a

9 finding of civil contempt.”) (internal quotation omitted). Ninth Circuit authority suggests that the

10 issues of “substantial compliance” and “reasonable efforts” are “interrelated, and reasonable

11 efforts are in fact a necessary component of substantial compliance.” Dep’t of Fair Housing &

12 Employment v. Law School Admission Council, Inc., 12-cv-01830-JCS, 2018 WL 1156605, at *16

13 (N.D. Cal. March 5, 2018).

14

2. Whether Plaintiffs Have Shown that Defendants Violated the Injunction

15

i. “Kettling” and Unlawful Assembly Declaration

16

First, Plaintiffs allege that Defendants violated the Injunction on August 26, August 28,

17 and August 29 by indiscriminately kettling peaceful demonstrators without justification, without

18 making required announcements, without providing routes for egress, and while displaying their

19 weapons. Mot at 2, 3–5, 8–9. Plaintiffs also allege that Defendants violated the Injunction on

20 August 29 by declaring the demonstration an unlawful assembly without justification. Id.

21 Defendants respond that officers sometimes surrounded the individuals they were arresting, but

22 their tactics “did not include encircling the crowd” of demonstrators, and they “always maintained

23 egress routes for the larger crowd.” Opp’n at 3 (citing Beaver Decl. ¶ 15). According to

24 Lieutenant Beaver’s declaration and Defendants’ opposition, officers kept “a distance from the

25 crowd as it traveled” on August 26, Beaver Decl. ¶ 10, but this “prevented [them] from making

26 targeted arrests and minimizing harm to the community,” Opp’n at 2 (citations omitted). So,

27 during the August 28 and August 29 demonstrations, OPD “deployed more officers” who

28 “stay[ed] closer to the crowd” in order to “identify[] and arrest[] individuals who were committing 32

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1 crimes.” Beaver Decl. ¶ 13; see id. ¶ 14. “When the crowd stopped moving,” however,

2 Lieutenant Beaver declares that “officers shrunk their present and stood at a distance from the

3 crowd.” Id. ¶ 13; see id. ¶ 14.

4

As an initial matter, neither the Injunction nor Training Bulletin III-G use the term

5 “kettling,” which is defined by Plaintiffs in their complaint as a “military term referring to an army

6 that is completely surrounded by a much larger force.” Compl. ¶ 66. That said, Training Bulletin

7 III-G does contain several relevant provisions governing crowd management, crowd control, and

8 crowd dispersal.22 See generally Training Bulletin III-G, § III.C.7., V. For example, the “General

9 Principles” section states in relevant part:

10 Even when some members of a crowd engage in violence or destruction of property,

11

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

12

the crowd who do not want to participate in the violent or destructive acts may be

13

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.

14 This understanding does not mean OPD cannot take enforcement action against the

15

crowd as permitted under this policy, but OPD shall seek to minimize the risk that

force and arrests may be directed at innocent persons.

16

17 Id. § III.C.7. Additionally, the bulletin provides that any use of force “shall be restricted to

18 circumstances authorized by law and to the degree reasonably necessary in light of the

19 circumstances confronting members,” but “[t]his directive does not preclude police officers from

20 taking appropriate action to direct crowd and vehicular movement; enforce ordinances and 21 statutes; and employ the physical force necessary to maintain the safety of the crowd, the general

22 public, law enforcement personnel, and emergency personnel.” Id. § III.C.12. Further, officers

23 are prohibited from displaying their weapons “in non-violent crowd situations” before “a dispersal

24 order is given or other enforcement action is implemented.” Id. § III.C.10.

25

The “Permissible Crowd Control and Crowd Dispersal Techniques” section adds that the

26

27 22 Again, Section I of the Injunction provides: “Except as modified in this order, OPD shall

28

adhere to Training Bulletin III-G, OPD Crowd Control and Crowd Management (2013), attached as Exhibit A.” See Amended Injunction, § 1.

33

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1 police “may not disperse a demonstration or crowd event before demonstrators have acted illegally

2 or before the demonstrators pose a clear and present danger of imminent violence.” Id. § V.F.1.

3 (citing Cal. Penal Code § 407). It also states:

4

When the only violation present is unlawful assembly, the crowd should be given an

5

opportunity to disperse rather than face arrest.

6

Crowd dispersal techniques shall not be initiated until OPD has made repeated

announcements to the crowd, asking members of the crowd to voluntarily disperse

7

and informing them that, if they do not disperse, they will be subject to arrest.

8

These announcements must be made using adequate sound amplification equipment

in a manner that will ensure that they are audible over a sufficient area.

9

Announcements must be made from different locations when the demonstration is

10

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

11

understand that they must leave the area. The announcements shall also specify

adequate egress or escape routes. Whenever possible, a minimum of two

12

escape/egress routes shall be identified and announced. . . . .

13

Unless an immediate risk to public safety exists or significant property damage is

14

occurring, sufficient time will be allowed for a crowd to comply with police commands before action is taken.

15

16 Id. § V.G.1, 2. “If the crowd has failed to disperse after the required announcements,” then

17 officers “may encircle the crowd or a portion of the crowd for purposes of making multiple

18 simultaneous arrests,” or they may “use squad or platoon formations (skirmish line, wedge,

echelons, etc.) to move the crowd along.”23 Id. § V.H.2., 3.a. (citation omitted). 19

20

21

22

23

23 The Court acknowledges that several demonstrators have declared that officers used excessive force again them and/or others. See, e.g., Lapierre Decl. ¶ 6; Hansen Decl.; Gaito Decl. ¶ 16;

24

Sugrue Decl. ¶ 5; McDonnell Decl. ¶¶ 16–17. Additionally, Mx. Hansen declared that officers discriminated against them on the basis of their non-binary gender. See generally Hansen Decl.

25

Although Plaintiffs reference many of these incidents in their motion, they have not alleged that the relevant actions taken by officers violated any provision of the Injunction.

26

As the Injunction itself recognizes, its scope is limited; the Court was focused on the use of “certain crowd control tactics and munitions” to police demonstrations, and it expressly stated that

27

it did not address “uses of force in specific instances,” which “may or may not be lawful depending upon the circumstances at the time.” Injunction at 1; see Amended Injunction at 1.

28

The Court’s conclusion that these allegations of excessive force do not violate the Injunction is without prejudice to any other claim Plaintiffs might assert.

34

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1

a. Wednesday, August 26

2

For the demonstration on the night of August 26, Plaintiffs’ allegations are supported by

3 Ms. Sorokin’s declaration that officers “kettled and closely followed protestors, including

4 immersing themselves in the protest,” Sorokin Decl. ¶ 11, and Mx. Hansen’s declaration that

5 “[n]ear the end of the night,” officers “blocked” demonstrators into a “ ‘T’ intersection” in a

6 residential neighborhood where “police barricaded both exits” and “rushed at the crowd,” Hansen

7 Decl. ¶¶ 13, 14.

8

Neither Ms. Sorokin nor Mx. Hansen describe the exact time or location of these events.

9 As described above, however, Defendants have submitted evidence that, shortly after 10:00 p.m.,

10 OPD made repeated unlawful assembly announcements over a public address system on Grand

11 Avenue, between at the intersection with Harrison Street and the intersection with Lee Street. See

12 Operations Log at 3–4; Pullen Video; Jimenez Rpt. at 3; see also Langlais Rpt. at 3; Keating Rpt.

13 at 3. In the video footage of these announcements, officers follow demonstrators at a distance, and

14 the announcements identify routes for egress. Pullen Video. Defendants have also submitted

15 evidence that approximately an hour later, at the nearby intersection of Perkins Street and Grand

16 Avenue, officers surrounded the medic van and ordered the driver, Mx. Hansen, to stop because

17 the van had obstructed officers, aided demonstrators who were throwing objects at officers, and

18 “consistently dr[iven] in the area with the crowd of protestors that was ordered to disperse.”

19 Jimenez Rpt. at 3; see Operations Log at 3; see generally Keating Rpt.; Jimenez Rpt.; Langlais

20 Rpt.; Aug. 26 Video.

21

On this limited record, the Court finds that Plaintiffs have failed to prove by clear and

22 convincing evidence that Defendants violated any of the above-quoted provisions of Training

23 Bulletin III-G on August 26, or that any other provision of the Injunction or Training Bulletin

24 III-G prohibited the conduct asserted in Plaintiffs’ declarations.

25

b. Friday, August 28

26

For the demonstration on the night of August 28, Plaintiffs’ allegations are supported by

27 demonstrators’ declarations that officers surrounded the crowd on three sides; blocked off roads;

28 ordered demonstrators to move quickly; threatened to arrest demonstrators if they walked too 35

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1 slowly; stepped on the backs of demonstrators’ shoes; and shoved demonstrators off the sidewalks

2 and into the street. See Lapierre Decl. ¶ 4; Munevar Decl. ¶¶ 4–7; Clancy Decl. ¶¶ 6, 8–10. Mr.

3 Munevar also declared that the officers were “armed with really big guns.” Munevar Decl. ¶ 4.

4 Other than the above-quoted statements of Lieutenant Beaver’s declaration, Defendants do not

5 offer any contradictory evidence.

6

Again, on this limited record, the Court finds that Plaintiffs have failed to prove by clear

7 and convincing evidence that Defendants violated any provision of the Injunction or Training

8 Bulletin III-G on August 28. First, Plaintiffs have not identified any provision of the Injunction or

9 Training Bulletin III-G that prohibits officers from walking alongside and behind a march,

10 provided that the march can continue forwards and that there are adequate routes for egress.

11 Given the damage to Oakland businesses and residences during prior nighttime demonstrations,

12 see generally Hinkle Decl., OPD could have determined that officers should stay “closer to the

13 crowd” to best “facilitate free speech and minimize further harm to the community.” Beaver Decl.

14 ¶¶ 11, 13; see id. ¶ 10. Second, to the Court’s knowledge, no parade permit was obtained and the

15 demonstration did not have a pre-planned route, so officers could have determined that a march of

16 this size should proceed in the street, with some roads closed to vehicular traffic and others closed

17 to demonstrators in an attempt to “balance the level of disruption to traffic against the OPD policy

18 of facilitating First Amendment activity.” Training Bulletin III-G, § III.C.6. Third, Plaintiffs have

19 not produced sufficient evidence from which the Court can determine, by clear and convincing

20 evidence, that the degree of any “use of force” in policing the crowd was beyond that “reasonably

21 necessary in light of the circumstances” and “to maintain the safety of the crowd, the general

22 public, law enforcement personnel, and emergency personnel.” Id. § III.C.12. Finally, officers are

23 allowed to carry firearms, though they may not “display” them before “a dispersal order is given

24 or other enforcement action is implemented.” Id. § III.C.10.

25

c. Saturday, August 29

26

For the demonstration on the night of August 29, Plaintiffs’ allegations are supported by

27 demonstrators’ declarations that officers surrounded the crowd on three sides; blocked off roads;

28 and ordered demonstrators to move quickly. See Lapierre Decl. ¶ 5; Sorokin Decl. ¶ 25; Munevar 36

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1 Decl. ¶¶ 13, 15–19; Gaito Decl. ¶¶ 10, 12, Sugrue Decl. ¶ 3. Ms. Gaito, Ms. Sugrue, and Mr.

2 Lapierre also declared that, at the back of the march on Mandana Boulevard, officers began

3 “attacking” demonstrators; “running into” them; and “body checking” them. Gaito Decl. ¶ 13;

4 Sugrue Decl. ¶ 4; Lapierre Decl. ¶ 5. Additionally, an Oakland resident’s twitter video depicted

5 clashes between a line of demonstrators holding shields at the back of the march and a line of

6 officers following closely. Brown Tweet.

7

Defendants have submitted evidence that, around 9:40 p.m. on Mandana Boulevard,

8 demonstrators with shields formed a line at the back of the march. Alaura Rpt. at 3; Au Rpt. at 4;

9 Aug. 29 Video. According to Sergeant Alaura’s and Officer Au’s reports, despite officers’ orders

10 that these demonstrators either move faster or get out of the way, they continued to remain in

11 formation, walking slowly. Alaura Rpt. at 3; Au Rpt. at 4–5; Aug. 29 Video. Additionally, these

12 demonstrators pushed officers with their shields, while others shined bright lights in officers’ eyes.

13 Alaura Rpt. at 4; Au Rpt. at 4–5. The officers stated that they were concerned that these

14 demonstrators were preventing them from staying close to the crowd, where they could identify

15 and arrest individuals who had committed or who intended to commit unlawful acts. Alaura Rpt.

16 at 3; Au Rpt. at 4–5. These events led to a series of clashes between the line of officers and the

17 line of demonstrators with shields, as described above and below. Aug. 29 Video. Shortly

18 thereafter, OPD declared an unlawful assembly. Id.; see Au Rpt. at 6; see also OPD Tweet.

19

Again, on this limited record, the Court finds that Plaintiffs have failed to prove by clear

20 and convincing evidence that Defendants violated any provision of the Injunction or Training

21 Bulletin III-G on August 29 for the reasons explained in the section immediately prior and because

22 Plaintiffs have failed to prove by clear and convincing evidence that demonstrators had not acted

23 illegally or posed a threat of clear and present danger of imminent violence prior to the unlawful

24 assembly declaration.

25

ii. COVID-19 Precautions

26

Second, Plaintiffs allege that Defendants violated the Injunction on August 26 and August

27 29 by failing to wear face masks and gloves. Mot at 3, 5, 9. Defendants respond that, “contrary to

28 Plaintiffs’ claims, all the footage in the record shows officers wearing masks.” Opp’n at 9. 37

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1

Under Section VIII of the Injunction, OPD officers are required “to wear face masks and

2 gloves whenever they interact with members of the public” at demonstrations during “the

3 pendency of the state of emergency declared by either the President of the United States or the

4 Governor of State of California.”

5

In support of Plaintiffs’ allegations, Mx. Hansen declared that throughout their interaction

6 with OPD officers on August 26, “many officers were not wearing masks,” Hansen Decl. ¶ 49,

7 and Ms. Li declared that she witnessed some OPD officers without face coverings and others

8 remove their face coverings, including one with an arrestee in his vehicle on August 28, Li Decl.

9 ¶¶ 21–22.24 Plaintiffs have not submitted any video or photo evidence of any officers failing to

10 wear face masks or gloves, however, and the video footage submitted by Defendants does not

11 depict officers failing to wear masks or gloves while interacting with demonstrators. On this

12 limited record, the Court finds that Plaintiffs have failed to prove by clear and convincing

13 evidence that Defendant have violated the Injunction in this respect.25

14

Plaintiffs also allege that Defendants violated the inunction by “corrall[ing] demonstrators

15 on each night of the demonstrations so that physical distancing was not possible.” Mot. at 9; see

16 id. at 2, 3–4. Although the Court previously observed that it is “concerned by the accounts of

17 numerous protestors that they were trapped by police officers and unable to either disperse or

18 maintain social distance,” the Injunction does not include any physical distancing requirements

19 related to the COVID-19 pandemic.26 Opinion at 30. Plaintiffs’ allegations therefore do not state

20 a violation of the Injunction.

21

22

23

24

24 Plaintiffs did not submit any evidence in support of their allegations that officers failed to wear gloves.

25

25 The Court acknowledges that Mx. Hansen declares that officers took Mx. Hansen’s face mask and “acted put out by [their] request” for a new mask. Hansen Decl. ¶ 50. Also, Mr. Clancy

26

declares that he was transported to the Santa Rita Jail in a van with other arrestees, but the arrestees without face masks were not offered any. Clancy Decl. ¶¶ 20–21. Plaintiffs do not

27

expressly reference these incidents in their motion, however, and they have not alleged that the relevant actions taken by officers violated any provision of the Injunction.

28

26 Additionally, Plaintiffs did not ask the Court to modify the Injunction to add physical distancing requirements related to the COVID-19 pandemic. See Plaintiffs’ Proposed Order.

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1

iii. Chemical Agents

2

Third, Plaintiffs allege that, on August 28, August 29, and September 25, Defendants

3 deployed chemical agents in violation of the Injunction because (1) “there was no imminent threat

4 of physical harm to a person or significant destruction of property at the time”; (2) OPD “did not

5 exhaust other techniques to mitigate the threat”; (3) OPD “did not provide any warning prior to the

6 deployment of the munitions”; and (4) OPD deployed the munitions directly into the crowd rather

7 than at a safe distance.” Mot at 7; see id. at 1, 4–5, 7–8. In response, Defendants take the position

8 that smoke is not a “chemical agent” for purposes of Section V(2) of the Injunction. See generally

9 Opp’n. Defendants also argue that the deployments of smoke and tear gas complied with Training

10 Bulletin III-G and the Injunction. Id. at 9.

11

Section V of the Injunction provides in relevant part:27

12

1. Chemical agents (including orthochlorobenzalmalononitrile), flashbang

grenades, and foam-tipped projectiles shall be deployed only when (a) there

13

is an imminent threat of physical harm to a person or significant destruction

of property; and (b) other techniques, such as simultaneous arrests or police

14

formations, have failed or are not reasonably likely to mitigate the threat. The

15

use of such munitions must be authorized by an OPD Operations Commander

or Incident Commander. None of these devices shall be deployed on peaceful

16

protestors or indiscriminately into a crowd. They may only be targeted at the

specific imminent threat justifying the deployment. Flash bang grenades and

17

gas canisters must be deployed at a safe distance from the crowd to minimize

the risk that individuals will be struck and injured by those devices. When

18

chemical agents are used, only the minimum amount of chemical agent

19

necessary to obtain compliance may be used, in accordance with OPD’s

Department General Order K-3, USE OF FORCE.

20

2. Except where an immediate risk to public safety or of significant property

21

damage makes it impossible to do so, before any of the devices listed in

Section V(2) are deployed to disburse a crowd, OPD must have made at least 22

23 27 Relatedly, Section V.H.4. of Training Bulletin III-G, which applies to the use “Non Hand-Held

24

Crowd Control Chemical Agents,” also provides that such agents “shall be used only if other techniques, such as encirclement and multiple simultaneous arrest or police formations have failed

25

or will not accomplish the policing goal as determined by the Incident Commander”; that officers “shall use the minimum amount of chemical agent necessary to obtain compliance in accordance

26

with Department General Order K-3, USE OF FORCE”; that such agents “shall not be used in demonstrations or other crowd events without the approval of the Incident Commander”; that

27

supervisors or commanders may only authorize the use of such agents “under exigent circumstances”; and that such agents “shall not be used for crowd control or dispersal without first

28

giving audible warning of their imminent use and giving reasonable time to the crowd, media, and observers to disperse.” Training Bulletin III-G, § V.H.4.b., c., d., e., f.

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two announcements to the crowd asking members of the crowd to voluntarily

1

disperse and informing them that, if they do not disperse, they will be subject

2

to arrest. These announcements must be made using adequate sound

amplification equipment in a manner that will ensure that they are audible to

3

the crowd and must identify at least two means of escape/egress. OPD must

also allow the crowd sufficient time to disperse after making these

4

announcements before deploying any of the devices in Section V(2).

5 Injunction, § V(2), (3); see Amended Injunction, § V(2), (3). Elsewhere, the Injunction also states

6 that officers are not “prohibit[ed]” from “taking reasonable action or using reasonable or necessary

7 force as allowed by law against an individual in self-defense or in defense of another person or

8 officer.” Injunction § VI; see Amended Injunction, § VI.A.

9

Meanwhile, Section V.H.5. of Training Bulletin III-G, which governs the use of “[h]and-

10 thrown chemical agents or pyrotechnic gas dispersal devices,” provides:

11 Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall not be used

12

for crowd control or crowd dispersal without the approval of the Incident

Commander. Only under exigent circumstances may a supervisor or commander

13

authorize the immediate use of hand-thrown chemical agents or pyrotechnic gas

14

dispersal devices. The Incident Commander shall be immediately notified when an exigent use of hand-thrown chemical agents or pyrotechnic gas dispersal devices has

15

occurred.

16 Training Bulletin III-G, § III.H.5.a. Further, hand-thrown chemical agents or pyrotechnic gas

17 dispersal devices “shall be deployed to explode at a safe distance from the crowd to minimize the

18 risk of personal injury and to move the crowd in the direction that will accomplish the policing

19 objective”; “shall not be used for crowd control without first giving audible warnings to the crowd

20 and additional reasonable time to disperse”; and “shall be used only if other techniques such as

21 encirclement and mass arrest or police formations have failed or will not accomplish the policing

22 goal as determined by the Incident Commander.” Id. § III.H.5.b., c., d.

23

a. Smoke Dispersal Devices

24

Although the parties disagree whether smoke (including the hexachloroethane, or “HC,”

25 devices used by OPD) is a “chemical agent” for purposes of Section V(2) of the Injunction, neither

26 has offered arguments or evidence for their position. In support of their motion for a preliminary

27 injunction, Plaintiffs previously submitted a declaration by a specialist in pulmonary disease that

28

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1 addressed the effects of tear gas (e.g., chloroacetophenone (CN) or chlorobenzylidene

2 malononitrile (CS)) and pepper spray (oleoresin capsicum (OC)), see generally Sporn Decl., but

3 that declaration did not address the effects of smoke generally or hexachloroethane specifically.

4 Meanwhile, Defendants previously submitted Training Bulletin V-F.2, OPD’s training bulletin on

5 chemical agents, which states that smoke (e.g., hexachloroethane (HC)) “is not a chemical agent.”

6 Training Bulleting V-F.2 (dkt. 36-5), § I.D.3.b. (italics added).

7

Because Plaintiffs have not submitted any arguments or evidence regarding the intended

8 use or effects of smoke dispersal devices (containing, e.g., hexachloroethane), the Court at this

9 time concludes that smoke is not a chemical agent for purposes of Section V(2) of the Injunction.

10 That said, the Court concludes that hand-held smoke dispersal devices deployed by OPD officers

11 are “pyrotechnic gas dispersal devices” for purposes of § III.H.5.a Training Bulletin III-G.

12

b. Friday, August 28

13

As described in Plaintiffs’ declarations, shortly after 9:00 p.m. on August 28, at the

14 intersection of Franklin Street and 15th Street, officers deployed smoke without audible warnings.

15 McDonnell Decl. ¶¶ 11–15; Li Decl. ¶¶ 17–18; see Lapierre Decl. ¶ 3; Chronicle Tweet. Plaintiffs

16 have also submitted a declaration describing, and an image depicting, another deployment of

17 smoke and/or tear gas at the intersection of 24th Street and Broadway without audible warnings.

18 Clancy Decl. ¶¶ 12–14; Li Tweet. But Plaintiffs’ motion does not expressly differentiate these

19 two incidents. See Mot. at 3–4; 7–8.

20

Defendants first respond that they deployed one handheld “Saf-Smoke Han Ball

21 munition”—but no “chemical agents”—at the intersection of Franklin Street and 15th Street.

22 Opp’n at 4–5 (quoting Gonzales Rpt. at 3; Beaver Decl. ¶ 18). They argue that this smoke

23 deployment complied with Training Bulletin III-G because Sergeant Gonzales deployed the device

24 “ ‘in a clear area’ when he saw members of the crowd ‘attempting to free’ two people whom the

25 officers were arresting.” Id. at 9 (quoting Gonzales Rpt. at 3 and citing Brown Rpt.). According

26 to Sergeant Gonzales’s report, around 9:10 p.m. at the intersection of Franklin Street and 15th

27 Street, while officers were attempting to arrest two individuals responsible for pointing lasers in

28 officers’ faces, other individuals “ran towards the officers making the detention,” and he deployed 41

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1 the device “in a clear area, on the street” to “stop [these demonstrators’] action, to deter others

2 from joining in, and to create a distance between the crowd and the officers.” Gonzales Rpt. at 3.

3 Similarly, Officer Brown’s report states that “[m]ultiple subjects” had “beg[un] to encircle officers

4 as they were making the arrest.” Brown Rpt. at 4.

5

Defendants do not directly respond to Plaintiffs’ evidence that officers deployed smoke

6 and/or tear gas at the intersection of 24th Street and Broadway without audible warnings. See

7 Opp’n at 4–5, 9. According to Officer Brown’s report, however, shortly after 9:15 p.m. at the

8 intersection of 24th Street and Broadway, when officers grabbed an individual who had interfered

9 with officers and was resisting arrest, other demonstrators “began to encircle” the officers. Brown

10 Rpt. at 4. So, Officer Brown deployed one “smoke han-ball on the . . . sidewalk in a clear area.”

11 Id. Likewise, Sergeant Gonzales’s report states that demonstrators had “beg[un] attacking

12 officers.” Gonzales Rpt. at 4. Other officers “deploy[ed] munitions,” including multiple “Saf-

13 Smoke Han-Bal munitions” and one “CS Blast Munition.” Id.

14

Regarding the deployments of smoke at the intersection of Franklin Street and 15th Street

15 and the intersection of 24th Street and Broadway, the Court finds that, on this limited record,

16 Plaintiffs have failed to prove by clear and convincing evidence that the handheld smoke dispersal

17 devices were not deployed “under exigent circumstances” or “a safe distance from the crowd,” or

18 that “other techniques” would have “accomplish[ed] the policing goal.” Training Bulletin III-G,

19 § III.H.5.a., b, d. Also, with respect to the deployment of tear gas at the intersection of 24th Street

20 and Broadway, the Court also finds that, on this limited record, Plaintiffs have failed to prove by

21 clear and convincing evidence that there was not “an imminent threat of physical harm to a

22 person” and that “other techniques” were “reasonably likely to mitigate the threat,” or that the

23 device was deployed “indiscriminately into a crowd.” Injunction § V(2).

24

Defendants have not argued or produced any evidence that officers gave audible warnings

25 and a reasonable amount of time to disperse prior the deployment of these smoke and tear gas

26 dispersal devices, however, and the Court finds that defendants have violated Training Bulletin

27

28 42

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1 III-G in this respect.28 Training Bulletin III-G, § III.H.5.c.

2

c. Saturday, August 29

3

As described above, shortly after 9:40 p.m. on Saturday, August 29, there was a series of

4 clashes at the back of the march between a line of demonstrators carrying shields and a line of

5 officers.

6

According to Plaintiffs’ declarations, officers then without warning deployed tear gas and

7 smoke dispersal devices directly into the crowd of demonstrators. Lapierre Decl. ¶ 5; Munevar

8 Decl. ¶¶ 22–27; Gaito Decl. ¶ 14; Sugrue Decl. ¶ 4. Mr. Munevar specifically declared that he

9 “saw police shoot [a] smoke grenade at [him] at close range, about 20 yards away,” and it “hit

10 [him] in the head.” Munevar Decl. ¶¶ 23, 24; see id. ¶ 25 (photo of slightly discolored and slightly

11 raised skin on Mr. Munevar’s forehead). Ms. Gaito also declared that cannisters were “shot at

12 protestors” and “into the center of the crowd.” Gaito Decl. ¶ 14. Plaintiffs have also submitted a

13 video with a cloud of a substance that looks like smoke and noises that seem to the explosion of

14 munitions, see Brown Tweet, and a probable cause declaration filed by OPD which states that

15 officers “deployed smoke munitions in order to disperse the crowd,” see PC Decl.

16

Defendants respond that three officers “each deployed one handheld smoke (non-

17 flashbang) device” and another officer deployed a “CS Blast.” Opp’n at 7. They argue that the

18 smoke deployments were justified because “the group holding shields continued to block and push

19 against officers” and “officers saw people grabbing officers and throwing objects at officers,” id.

20 (citing Alaura Rpt.; Au Rpt.), and that the tear gas deployment was justified because officers were

21 “under attack—including by someone who threw a munition at officers,” id. at 9 (citing Au Rpt.).

22 Defendants do not directly address whether two of the three deployments of smoke dispersal

23 devices met the deployment requirements of Training Bulletin III-G, but they argue that there is

24 “no foundation or support for Mr. Munevar’s claim that he was hit in the head by a smoke

25

26

27

28 Plaintiffs have not expressly alleged that defendants violated Section V(3) of the Injunction, which requires at least two announcements of an unlawful assembly and sufficient time to disperse

28

prior to deploying any of the devices listed in Section V(2) to disperse a crowd, except where “an immediate risk to public safety or of significant property damage makes it impossible to do so.”

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1 grenade.”29 Id. They also contend that the tear gas deployment complied with the deployment

2 requirements of the Injunction because the officer “ ‘located a clear area in the street,’ ”

3 “ ‘deployed the CS Blast . . . a safe distance from any person,’ ” and “ ‘did not see anyone who

4 may have been injured as a result of [his] CS Blast deployment.’ ” Id. at 6 (quoting Au Rpt. at 5).

5

According to Sergeant Alaura’s report, around 9:40 p.m. on Mandana Boulevard, after he

6 saw demonstrators “grabbing onto officers” and “throwing objects at officers,” he “rolled” a

7 “Hanball smoke” munition behind the demonstrators holding shields. Alaura Rpt. at 3. According

8 to Officer Au’s report, after observing demonstrators “actively pushing” officers and “utilizing

9 blinding lights to prevent Officers from seeing,” he deployed one “SAF-Smoke Han-Ball”

10 munition “directly in front of [him] on the ground” a “safe distance from any person,” and he did

11 not see “anyone who appeared to be injured.” Au Rpt. at 5. After Officer Au saw a smoke

12 munition and “multiple large glass bottles” thrown towards officers, he deployed one “CS Blast

13 towards the direction of where the dangerous objects were coming from,” to “a clear area in the

14 street” and a “safe distance from any person.” Id. He did not see anyone who may have been

15 injured as a result. Id.

16

In the video footage that appears to be from Sergeant Alaura’s body-worn camera, at

17 9:43 p.m., after a line of officers and a line of demonstrators holding shields clash, one device flies

18 over the lines, and Sergeant Alaura rolls another device under the lines. Aug. 29 Video. Sergeant

19 Alaura yells, “Smoke deployed, smoke deployed,” and a cloud of a substance that looks like

20 smoke appears. Id. After a noise that sounds like a glass bottle shattering and officers’ voices

21 yelling, “Bottle, bottle,” another officer appears to throw an object over the lines and there is a

22 flash and a loud bang. Id. At 9:44 p.m., another officer (presumably Officer Au) informs

23 Sergeant Alaura, “One smoke and one blast, Sergeant.” Id. And at 9:47 p.m., after another clash

24 between officers and the demonstrators holding shields, Sergeant Alaura yells, “Get a smoke,

25 smoke,” and a cloud of a substance that looks like smoke appears. Id.

26

Also, the Munitions Log does not indicate that any launched munitions were deployed on

27

28

29 Defendants do not explain why Mr. Munevar’s declaration describing his personal experience would require “foundation.”

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1 this date, so it seems that the smoke and tear gas dispersal devices were hand-held, not launched.

2 Munitions Log (dkt. 77-1) at 5–7.

3

Regarding the deployments of smoke, the Court finds that, on this limited record,

4 Plaintiffs have failed to prove by clear and convincing evidence that the handheld smoke dispersal

5 devices were not deployed “under exigent circumstances” or that “other techniques” would have

6 “accomplish[ed] the policing goal.” Training Bulletin III-G, § III.H.5.a., b, d. Also, with respect

7 to the deployment of tear gas, the Court finds that, on this limited record, Plaintiffs have failed to

8 prove by clear and convincing evidence that there was not “an imminent threat of physical harm to

9 a person” and that “other techniques” were “reasonably likely to mitigate the threat.” Injunction,

10 § 5(2).

11

That said, Defendants have not argued or produced any evidence that officers gave audible

12 warnings and a reasonable amount of time to disperse prior the deployment of the smoke and tear

13 gas dispersal devices. Further, Sergeant Alaura’s body-worn camera footage suggests that at least

14 two dispersal devices were thrown into the middle of the crowd. Aug. 29 Video. Although it is

15 not clear whether these devices contained smoke or tear gas, Section III.H.5.b. of Training

16 Bulletin III-G requires hand-thrown smoke and tear gas dispersal devices to be “deployed to

17 explode at a safe distance from the crowd to minimize the risk of personal injury” and Section

18 V(2) of the Injunction requires “gas canisters” to be “deployed at a safe distance from the crowd to

19 minimize the risk that individuals will be struck and injured by those devices.” The Court finds

20 that defendants have violated the Injunction in these respects.30

21

d. Saturday, September 25

22

In the form of a news article and tweets with photos and videos, Plaintiffs submit evidence

23 that officers deployed tear gas and/or smoke on Saturday, September 25. Chronicle Article; First

24 Williams Tweet; Second Williams Tweet; Second OPD Tweet.

25

26 30 Again, Plaintiffs have not expressly alleged that defendants violated Section V(3) of the

27

Injunction, which requires at least two announcements of an unlawful assembly and sufficient time to disperse prior to deploying any of the devices listed in Section V(2) to disperse a crowd,

28

except where “an immediate risk to public safety or of significant property damage makes it impossible to do so.” See Mot. at 7–8.

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1

Defendants respond that around 9:25 p.m., one officer deployed a “handheld smoke (non-

2 flashbang) device when a group descended on officers attempting to make an arrest.” Opp’n at 6–

3 7 (citing Thurston Rpt.; Sept. 25-1 Video). Also, around 9:49 p.m., one officer deployed a

4 “handheld smoke (non-flashbang) device” when “[c]rowd members again impeded officers and

5 threw at least one glass bottle at officers,” and another officer “launched a (non-flashbang) smoke

6 shell after “someone threw the [smoke device] back at the officers.” Id. at 7 (citing Thurston Rpt.,

7 Sept. 25-2 Video). Additionally, they argue that their deployments complied with the deployment

8 requirements of Training Bulletin III-G and the Injunction because the officers deployed the

9 handheld smoke devices “in a clear area” in response to “articulated threats to others.” Id. at 9

10 (citing Thurston Rpt.; Sept. 25-1 Video; Sept. 25-2 Video).

11

According to Officer Thurston’s report, at some time after 9:00 p.m., near the intersection

12 of 14th Street and Madison Street, he observed demonstrators throw items at officers and Sergeant

13 Alaura “deploy a smoke han-ball munition.” Thurston Rpt. at 3. The munition “land[ed] in a safe

14 area,” but a demonstrator picked it up and “thr[ew] it hard directly at Officers.” Id. Around

15 9:25 p.m., while officers were detaining the suspect who had thrown the munition, “several

16 members of the crowd moved towards the Officer’s backs,” and Officer Thurston saw another

17 smoke han-ball munition deploy. Id. In Defendants’ video footage from an unidentified officer’s

18 body-worn camera, officers and demonstrators are walking when officers suddenly rush into the

19 crowd and grab a demonstrator. Sept. 25-1 Video. There is commotion among officers and

20 demonstrators; a demonstrator grabs the arm of the officer wearing the body camera, but then

21 backs away immediately; and a cloud of a substance that looks like smoke appears. Id.

22

Also according to Officer Thurston’s report, later in the evening and near the intersection

23 of 14th Street and Harrison Street, some officers were attempting to detain one suspect “with an

24 arrest warrant” while other officers were detaining a second suspect. Thurston Rpt. at 3. Officer

25 Thurston “heard glass break close by,” and, as instructed by Sergeant Alaura, he “deploy[ed] a

26 smoke SKAT-shell.” Officer Thurston directed the deployment “south of the crowd, clear of any

27 protestors.” Id. In Defendants’ video footage from Sergeant Alaura’s body-worn camera, officers

28 and demonstrators are walking when officers suddenly rush into the crowd and grab a 46

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1 demonstrator. Sept. 25-2 Video. There is a noise that seems to be the deployment of munitions,

2 and a cloud of a substance that looks like smoke appears. Id. A smoking object flies back towards

3 officers who then rush towards a second suspect. Id. A glass bottle crashes on the street near the

4 officers. Id. Sergeant Alaura yells, “Thurston, Thurston, deploy!” Id. There is a large bang. Id.

5 Sergeant Alaura then reports, “Alpha Tango, launch smoke deployed, 1400 block Harrison, during

6 an arrest.” Id.

7

Regarding the deployments of the hand-held smoke dispersal devices, the Court finds that,

8 on this limited record, Plaintiffs have failed to prove by clear and convincing evidence that the

9 handheld and launched31 smoke dispersal devices were not deployed “under exigent

10 circumstances” or “a safe distance from the crowd,” or that “other techniques” would have

11 “accomplish[ed] the policing goal.” Training Bulletin III-G, § III.H.5.a., b, d. Defendants have

12 not argued nor produced any evidence that officers gave audible warnings and a reasonable

13 amount of time to disperse prior the deployment of any of the smoke dispersal devices, however,

14 and the Court finds that defendants have violated the Injunction in these respects.32 Training

15 Bulletin, III-G § III.H.5.c.

16

3. The Court Does not Hold Defendants in Contempt

17

Although the Court finds that Defendants have committed some violations of the

18 Injunction, these violations do not warrant a contempt order because the record indicates that

19 Defendants have made all reasonable efforts to substantially comply. See Dual-Deck Video

20 Cassette Recorder, 10 F.3d at 695; Donallco, 787 F.2d at 1378–79. Lieutenant Beaver declared

21 that OPD “discussed [the Injunction] in detail with all its commanders, supervisors, specially

22

23

31 The Court acknowledges that Section III.H.5. refers to “hand-held pyrotechnic gas dispersal devices,” but it interprets that provision to also apply to launched smoke dispersal devices to avoid

24

the absurdity that the deployment of launched smoke devices would be less restricted than the deployment of hand-held smoke devices. See also Training Bulletin III-G, § III.H.4. (restricting

25

non-hand-held crowd control chemical agents), id. § IV.F. (prohibiting, among other weapons, “less-lethal specialty impact weapons designed to be skip fired or otherwise deployed in a non-

26

directional non-target specific manner”). 32 Again, Plaintiffs have not expressly alleged that defendants violated Section V(3) of the

27

Injunction, which requires at least two announcements of an unlawful assembly and sufficient time to disperse prior to deploying any of the devices listed in Section V(2) to disperse a crowd,

28

except where “an immediate risk to public safety or of significant property damage makes it impossible to do so.”

47

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1 trained officers who are designated under [Training Bulletin III-G] to possess chemical agents and

2 less-lethal munitions, and all other officers before they were deployed to facilitate protests,” and

3 that the Injunction’s provisions are “included in protest operations plans.” Beaver Decl. ¶ 6. This

4 is reflected in several officers’ reports, which indicate that they briefed others, or were briefed by

5 others, on the Injunction and/or Training Bulletin III-G. See Gonzales Rpt. at 3; Brown Rpt. at 3;

6 Alaura Rpt. at 3; Au Rpt. at 4; Thurston Rpt. at 2. Further, while officers failed to issue warnings

7 prior to the deployment of smoke and tear gas and sometimes failed to deploy the dispersal

8 devices a safe distance from the crowd, Plaintiffs have not shown by clear and convincing

9 evidence that officers deployed smoke or tear gas in the absence of exigent circumstances,

10 Training Bulleting III-G, § III.H.5.a., or that officers deployed tear gas in the absence of an

11 imminent threat to physical harm to a person or significant property damage or where other

12 techniques were reasonably likely to mitigate the threat, Injunction § V(2). To the contrary,

13 Defendants have produced evidence that each time they deployed smoke and/or tear gas, there

14 some was threat to officers’ safety. The sporadic violations that Plaintiffs have identified

15 therefore do not warrant a sanction of contempt.

16

4. The Court Denies Plaintiffs’ Proposed Modifications of the Injunction

17

In their proposed order, Plaintiffs also requested that the Court make several modifications

18 to Section V of the Injunction. Plaintiffs’ Proposed Order. Plaintiffs did not reference or argue

19 for any such modifications in their motion, and they did not file their Proposed Order until the

20 Court ordered them to do so and after Defendants filed their opposition—pursuant to the briefing

21 schedule agreed to by Plaintiffs. See Prehearing Order; Order Adopting Parties’ Briefing Schedule

22 (dkt. 62). The Court has declined to make the modifications proposed by Plaintiffs.

23

B. Defendant’s Cross-Motion to Modify

24

1. Legal Standards

25

“ ‘[A] sound judicial discretion may call for the modification of the terms of an injunction

26 decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have

27 changed, or new ones have since arisen.’ ” United States v. Washington, 853 F.3d 946, 979 (9th

28 Cir. 2017) (quoting Sys. Fed’n No. 91, Ry. Emp. Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 647 48

Case 3:20-cv-03866-JCS Document 83 Filed 10/31/20 Page 49 of 51

United States District Court Northern District of California

1 (1961)). Accordingly, a “district court has inherent authority to modify a preliminary injunction in

2 consideration of new facts.” A&M Records v. Napster, Inc., 284 F.3d 1091, 1098 (9th Cir. 2002).

3 “A party seeking modification . . . of an injunction bears the burden of establishing that a

4 significant change in facts or law warrants revision . . . of the injunction.” Sharp v. Weston, 233

5 F.3d 1166, 1170 (9th Cir. 2000).

6

2. Whether Defendants are Entitled to Modifications of the Injunction

7

The Court has reviewed the provisions governing mutual aid within the California

8 Government Code, the Master Mutual Aid Agreement, the Blue Book, the Red Book, OPD

9 General Order L-3, and Training Bulletin III-G. As the parties agreed at the hearing, it is difficult

10 to harmonize these overlapping provisions with respect to mutual aid agencies’ responsibilities, if

11 any, (1) to provide mutual aid upon request and (2) to follow the host agency’s command structure

12 and policies while providing mutual aid. More importantly, the parties also agreed that, even if the

13 mutual aid partners do have such responsibilities, the Court cannot presently order the partners to

14 fulfill them because no partners are parties to this case. See Opinion at 32 (“Because no mutual

15 aid partners have been named as defendants, the Court does not have the authority to issue

16 injunctive relief that is binding on the mutual aid partners.”).

17

At the same time, Plaintiffs acknowledged at the hearing the concern shared by the Court

18 and by the City that OPD faces the potential of policing large-scale demonstrations without mutual

19 aid, beginning next week. See Yu Decl. ¶ 7. Although OPD has policed several demonstrations

20 without mutual aid since the Court issued the Injunction on July 29, the number of participants in

21 those demonstrations—up to 700 on August 26—pales in comparison to the number of

22 participants in the demonstrations earlier this year—up to 8,000 on May 29 and up to 15,000 on

23 June 1—when OPD had the assistance of hundreds of mutual aid officers. Beaver Decl. ¶ 8;

24 Allison Decl. (dkt. 36-1) ¶¶ 13, 16; Activity Logs (dkt. 36-10) at 2, 15. If OPD does not have an

25 adequate number of officers for any upcoming election-related demonstrations, there is a risk not

26 only to the safety of officers, but also to the safety of the general public and of the demonstrators

27 themselves. Accordingly, the Court finds that the lack of mutual aid, combined with the potential

28 for large-scale demonstrations related to the upcoming election, constitutes a significant change in 49

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United States District Court Northern District of California

1 the facts that warrants revision of the Injunction to appropriately balance the equities of the parties

2 and the public interest. See Sharp, 233 F.3d at 1170; see generally Winter v. Nat. Res. Defense

3 Council, Inc., 555 U.S. 7, 24 (2008) (discussing the factors relevant to granting a preliminary

4 injunction).33

5

As the Court recognized when issuing its original Injunction, however, if the City and

6 OPD rely heavily on mutual aid partners to police demonstrations, “the effectiveness of the

7 injunctive relief . . . will depend to a large degree on whether officers of mutual aid partners abide

8 by the terms of the preliminary injunction that apply to OPD with respect to the crowd control

9 tactics and munitions they use.” Opinion at 32. So, in amending the Injunction, the Court has

10 endeavored to make the narrowest possible modifications that might satisfy the need of the City

11 for assistance during large demonstrations, while also minimizing the potential that mutual aid

12 officers use weapons or force against demonstrators in a manner inconsistent with the Injunction

13 or Training Bulletin III-G.

14

At the hearing, the parties agreed that if OPD needs mutual aid, but it cannot secure it

15 pursuant to the terms of the original mutual aid section of the Injunction (now Section VI(B) of the

16 Amended Injunction), then it would be appropriate for OPD to instead obtain mutual aid pursuant

17 to the terms of Training Bulletin III-G.34 As the parties acknowledged, the terms of Training

18 Bulletin III-G are very similar to those of the original mutual aid section of the Injunction;

19 importantly, OPD officers are responsible for “ensuring to the extent possible” that mutual aid

20 agencies are briefed on and agree with OPD’s command structure and OPD’s policies on

21 prohibited weapons and force. Training Bulletin III-G, § IX.1.–3. And, as the Court noted in its

22 Amended Injunction, Training Bulletin III-G was “mandated under the settlement agreements and

23 orders in Spalding v. City of Oakland, No. 11-cv-02867 TEH (N.D. Cal.), and Campbell v. City of

24 Oakland, No. 11-cv- 05498 JST (N.D. Cal.)”; it “has been in force for many years”; and “local law

25

26

33 The Court’s acknowledgment of the effect on the City of mutual aid partners’ refusal to provide aid should not be construed as an endorsement of the reasons those partners provided for their

27

refusal, some of which appear to rest on a flawed reading of the original Injunction. 34 Notably, the City only requested a temporary suspension of the mutual aid section of the

28

Injunction (section VI)—not of section I, which incorporates the entirety of Training Bulletin III-G. See Cross Mot. at 1, 8–9; Status Rpt. at 1; see also Amended Injunction § 1.

50

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United States District Court Northern District of California

1 enforcement agencies, including the Alameda County Sheriff, have provided mutual aid to

2 Oakland under its terms.” Amended Injunction at 5 n.1.

3

Specifically, under the Amended Injunction, OPD must first “make reasonable efforts” to

4 obtain mutual aid pursuant the terms of the original mutual aid section—Section VI(B) of the

5 Amended Injunction. Amended Injunction, § VI.C. If the Chief of Policies certifies in writing

6 that those efforts “were not sufficient to meet OPD’s anticipated need for mutual aid,” however,

7 OPD may obtain mutual aid pursuant to the terms of Training Bulletin III-G. Id. As under the

8 original Injunction, OPD officers are required to “assume front line positions between mutual aid

9 officers and demonstrators,” to the extent possible. Id. § VI.A. Within 48 hours of the incident,

10 the Chief of Police must file a report with the Court explaining, among other things, the efforts

11 made to obtain mutual aid pursuant the terms of Section VI.B. of the Amended Injunction and the

12 results of those efforts, as well as the efforts made to obtain mutual aid pursuant to the terms of

13 Training Bulletin III-G and the results of those efforts. Id. § VI.C.iii.–iv.

14

IV. CONCLUSION

15

For the reasons stated above, Plaintiff’s motion is DENIED, and Defendant’s cross-motion

16 is GRANTED in part and DENIED in part.

17

IT IS SO ORDERED.

18 Dated: October 31, 2020

19

______________________________________

JOSEPH C. SPERO

20

Chief Magistrate Judge

21

22

23

24

25

26

27

28 51

 
 Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 1 of 26

1 WALTER RILEY, SBN 95919

JAMES DOUGLAS BURCH, SBN 293645

LAW OFFICE OF WALTER RILEY 2 1407 Webster Street, Suite 206

NATIONAL LAWYERS GUILD 558 Capp Street

3 Oakland, CA 94612 Telephone: (510) 451-1422

San Francisco, CA 94110 Telephone: (415) 285-5067 x.104

4 Facsimile: (510) 451-0406

Email: james_burch@nlgsf.org

Email: walterriley@rrrandw.com 5

Attorneys for Plaintiffs

6 DAN SIEGEL, SBN 56400 SIEGEL, YEE, BRUNNER & MEHTA

Additional counsel on signature page

7 475 14th Street, Suite 500

Oakland, California 94612 8 Telephone: (510) 839-1200

9 Facsimile: (510) 444-6698 Email: danmsiegel@gmail.com

10

UNITED STATES DISTRICT COURT 11

12

NORTHERN DISTRICT OF CALIFORNIA

13 ANTI POLICE-TERROR PROJECT,

) Case No. 20-cv-03866-JCS

COMMUNITY READY CORPS, SEAN

)

14 CANADAY, MICHAEL COHEN, MICHAEL ) FIRST AMENDED CLASS ACTION

15 COOPER, ANDREA COSTANZO, JOHNATHAN FARMER, LINDSEY

) COMPLAINT FOR DAMAGES AND ) INJUNCTIVE AND DECLARATORY

16 FILOWITZ, DANIELLE GAITO, KATIE ) RELIEF

JOHNSON, BRYANNA KELLY, JENNIFER ) 17 LI, IAN McDONNELL, MELISSA MIYARA, ) Civil Rights

18 LINDSEY MORRIS, LEILA MOTTLEY, NIKO NADA, AZIZE NGO, NICOLE

) ) DEMAND FOR A JURY TRIAL

19 PULLER, MARIA RAMIREZ, AKIL RILEY, )

AARON ROGACHEVSKY, TARA ROSE, ) 20 ASHWIN RUPAN, DANIEL SANCHEZ, )

21 CHRISTINA STEWART, TAYAH

)

STEWART, KATHERINE SUGRUE,

)

22 CELESTE WONG, and QIAOCHU ZHANG; )

on behalf of themselves and similarly

)

23 situated individuals,

)

24

Plaintiffs,

)

vs.

)

25

)

CITY OF OAKLAND, OPD Police Chief

)

26 SUSAN E. MANHEIMER, OPD Sergeant )

27 PATRICK GONZALES, OPD Officer

)

MAXWELL D’ORSO and OPD Officer

)

28 CASEY FOUGHT,

)

Defendants.

)

APTP v. City of Oakland, No. 20-cv-03866-JCS First Amended Class Action Complaint- 1

Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 2 of 26

1

INTRODUCTION

2

1. Beginning May 29, 2020, following the graphic police murder of George Floyd,

3 who was recorded on video reciting the all too familiar and tragic plea “I can’t breathe” while a

4 white police officer kneeled on his neck, Bay Area residents took to the streets of Oakland to

5 protest this injustice and grieve the police murders of other Black and Brown people, including

6 Breonna Taylor, Ahmaud Arbury, and Tony McDade.

7

2. Defendant City of Oakland’s Police Department (“OPD”) used violent crowd

8 control tactics against these peaceful demonstrators. Over the course of several days, OPD

9 deployed constitutionally unlawful crowd control tactics including kettling, indiscriminate

10 launching of tear gas and flashbang grenadess into crowds and at individuals, and shooting

11 projectiles at demonstrators. These demonstrators included many young Black and Brown

12 people.

13

3. OPD unjustifiably declared peaceful protests “unlawful assemblies” to excuse

14 their violent tactics.

15

4. OPD knowingly placed these demonstrators in physical danger through

16 indiscriminate use of excessive force.

17

5. OPD also knowingly created a danger to public health by forcing demonstrators

18 to break social distancing rules that are currently in place due to the COVID-19 pandemic.

19

6. OPD targeted journalists and others simply recording its conduct. It targeted

20 medics who were seeking to give aid to those harmed.

21

7. OPD’s actions, moreover, were in violation of OPD policy and procedures and/or

22 caused by the omission of needed OPD policy and procedures.

23

8. OPD did not act alone, calling on its mutual aid network of police from other

24 municipalities to further carry out its constitutionally improper tactics.

25

9. On June 1, 2020, at around 5 p.m., the Alameda County Sheriff issued a curfew

26 order for the County of Alameda, set to begin at 8 p.m. that evening. The curfew was

27 established while approximately 15,000 students and residents peacefully marched and

28 gathered in Oakland.

APTP v. City of Oakland, No. 20-cv-03866-JCS First Amended Class Action Complaint- 2

Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 3 of 26

1

10. OPD falsely claimed demonstrators were inciting violence, throwing Molotov

2 cocktails, assaulting officers, throwing rocks at officers, and destroying property in order to

3 justify police use of force and to discourage participation by the public. The curfew violated

4 people’s First Amendment rights.

5

11. Demonstrators who otherwise intended to comply with the curfew were kettled

6 and arrested for being in violation of the curfew.

7

12. On March 14, 2003, the United States District Court approved a negotiated

8 settlement agreement placing the Oakland Police Department under the Court’s supervision

9 until such time as it had implemented a series of specified changes. Allen v. City of Oakland,

10 USDC ND Cal. No. 3:00-cv-04599. Those changes were designed in part to prevent the use of

11 excessive force by Oakland officers and to hold them accountable for violating people’s rights.

12 More than 17 years later, the Court’s supervision continues because Oakland has failed to

13 implement and sustain the required changes.

14

13. Plaintiffs bring this action to ask the Court to restrain the City of Oakland from

15 further violence and unconstitutional conduct and for damages.

16

JURISDICTION AND VENUE

17

14. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1331

18 (claims arising under the U.S. Constitution) and § 1343(a)(3) claims brought to address

19 deprivations, under color of state authority, of rights, privileges, and immunities secured by

20 the U.S. Constitution), and 42 U.S.C. § 1983.

21

15. The state law claims here are so related to claims in the action within original

22 jurisdiction that they form part of the same case or controversy under Article III of the United

23 States Constitution. The Court has supplemental jurisdiction over the related state law claims

24 under 28 U.S.C. § 1367.

25

16. Venue is proper in the United States District Court for the Northern District of

26 California pursuant to 28 U.S.C. § 1391(b)(1) because defendants are located in the Northern

27 District of California and § 1391(b)(2) because all of the acts and/or omissions complained of

28 herein occurred within the Northern District of California.

APTP v. City of Oakland, No. 20-cv-03866-JCS First Amended Class Action Complaint- 3

Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 4 of 26

1

2

PARTIES

3

17. Plaintiff Anti Police-Terror Project (“APTP”) is a Black-led, multi-racial,

4 intergenerational coalition that seeks to build a replicable and sustainable model to eradicate

5 police terror in communities of color. APTP supports families surviving police terror in their

6 fight for justice, documenting police abuses and connecting impacted families and community

7 members with resources, legal referrals, and opportunities for healing. APTP began as a

8 project of the ONYX Organizing Committee. APTP was created following the police killing of

9 Oscar Grant on January 1, 2009, and frequently organizes and leads protests against police

10 misconduct.

11

18. Plaintiff Community Ready Corps (“CRC”) is an Oakland-based community

12 organization that combats white supremacy and actively builds and supports Black liberation.

13 CRC frequently organizes and leads protests against police misconduct.

14

19. Plaintiff Sean Canaday is a resident of Berkeley, California.

15

20. Plaintiff Michael Cohen is a resident of Berkeley, California.

16

21. Plaintiff Michael Cooper is a resident of Berkeley, California.

17

22. Plaintiff Andrea Marina Costanzo is a resident of Oakland, California.

18

23. Plaintiff Johnathan Farmer is a resident of Oakland, California.

19

24. Plaintiff Lindsey Filowitz is a resident of Oakland, California.

20

25. Plaintiff Danielle Gaito is a resident of San Rafael, California.

21

26. Plaintiff Katie Johnson is a resident of Oakland, California.

22

27. Plaintiff Bryanna Kelly was a resident of Hayward, California, at all relevant

23 times.

24

28. Plaintiff Jennifer Li is a resident of Oakland, California.

25

29. Plaintiff Ian McDonnell is a resident of Oakland, California.

26

30. Plaintiff Melissa Miyara is a resident of Oakland, California.

27

31. Plaintiff Lindsey Morris is a resident of Oakland, California.

28

32. Plaintiff Leila Mottley is a resident of Oakland, California.

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Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 5 of 26

1

33. Plaintiff Niko Nada is a resident of Oakland, California.

2

34. Plaintiff Nicole Puller is a resident of Oakland, California.

3

35. Plaintiff Azize Ngo is a resident of Oakland, California.

4

36. Plaintiff Maria Ramirez is a resident of Oakland, California.

5

37. Plaintiff Akil Riley is a resident of Oakland, California.

6

38. Plaintiff Aaron Rogachevsky is a resident of Oakland, California.

7

39. Plaintiff Tara Rose is a resident of Richmond, California.

8

40. Plaintiff Ashwin James Rupan is a resident of Hayward, California.

9

41. Plaintiff Daniel Sanchez is a resident of Oakland, California.

10

42. Plaintiff Christina Stewart is a resident of Sacramento, California.

11

43. Plaintiff Tayah Stewart is a resident of Sacramento, California.

12

44. Plaintiff Katherine Sugrue is a resident of Oakland, California.

13

45. Plaintiff Celeste Wong is a resident of Oakland, California.

14

46. Plaintiff Qiaochu Zhang is a resident of Oakland, California.

15

47. Defendant City of Oakland (“Oakland”) is a municipal corporation, duly

16 organized and existing under the laws of the State of California, and is the employer of the

17 individual Oakland defendants, as well as other to be identified Oakland employees. The City

18 of Oakland operates the OPD under its authority.

19

48. At all material times herein, the City of Oakland was responsible for supervising,

20 enacting, and enforcing the OPD’s conduct, policies, and practices; the absence of needed

21 policies and practices; and for the hiring, retention, supervision, and training of employees and

22 agents of the OPD, including such employees as defendants Police Chief Susan E. Manheimer

23 (“Manheimer”), Sergeant Patrick Gonzales (“Gonzales”), OPD Officer Maxwell D’Orso

24 (“D’Orso”), OPD Officer Casey Fought (“Fought”), and to be identified OPD employees.

25

49. Oakland was also responsible for the actions of the members of their mutual aid

26 network including all assisting officers from Contra Costa County Sheriff’s Department,

27 Alameda County Sheriff’s Department, San Mateo County Sheriff’s Department, San Bruno

28 Police Department, Redwood City Police Department, Menlo Park Police Department and

APTP v. City of Oakland, No. 20-cv-03866-JCS First Amended Class Action Complaint- 5

Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 6 of 26

1 California State University Police Department.

2

50. At all material times herein, defendant Chief Manheimer was employed by

3 defendant Oakland as the Interim Chief of Police, and was acting within the course and scope

4 of that employment at such times. She is being sued in her individual and official capacities as

5 the OPD Interim Chief of Police. At all material times, Chief Manheimer was the final policy

6 making official for the OPD, ultimately responsible for all policies, procedures or omission of

7 procedures, supervision, and training of OPD employees.

8

51. At all material times herein, defendant Sergeant Gonzales was employed by

9 defendant Oakland as a Police Sergeant, and was acting within the course and scope of that

10 employment at such times. He is being sued in his individual and official capacities as an OPD

11 Sergeant. At all material times, Sergeant Gonzales was a supervisor, responsible for enforcing

12 all policies, procedures, supervision, and training of OPD employees.

13

52. At all material times herein, defendant Officer D’Orso was employed by

14 defendant Oakland as a Police Officer, and was acting within the course and scope of that

15 employment at such times. He is being sued in his individual and official capacities as an OPD

16 Officer.

17

53. At all material times herein, defendant Officer Fought was employed by

18 defendant Oakland as a Police Officer, and was acting within the course and scope of that

19 employment at such times. He is being sued in his individual and official capacities as an OPD

20 Officer.

21

54. Plaintiffs allege that each of the defendants sued herein was wrongfully,

22 deliberately indifferent, negligently, and/or otherwise responsible in some manner for the

23 events and happenings as hereinafter described, and proximately caused injuries and damages

24 to plaintiffs.

25

55. Plaintiffs allege that each of the defendants was at all material times an agent,

26 servant, employee, partner, joint venturer, co-conspirator, and/or alter ego of the remaining

27 defendants, and in doing the things hereinafter alleged, was acting within the course and scope

28 of that relationship.

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Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 7 of 26

1

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

2 defendants herein gave consent, aid, and assistance to each of the remaining defendants, and

3 ratified and/or authorized the acts or omissions of each defendant as alleged herein, except as

4 may hereinafter be otherwise, specifically alleged.

5

57. At all material times, each defendant was an integral participant, jointly and

6 fundamentally engaged in constitutionally improper, unlawful, and/or tortious activity,

7 resulting in the deprivation of plaintiffs’ constitutional rights and other actionable harm.

8

58. The acts and omissions of all Oakland defendants were at all material times

9 pursuant to the actual customs, policies, practices, and/ or procedures of Oakland and/or the

10 OPD. Stated alternatively, the acts and omissions of all Oakland defendants were at all

11 material times pursuant to the omission of customs, policies, practices, and/or procedures of

12 Oakland and/or the OPD.

13

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

14 ordinances, and regulations of the State of California.

15

STATEMENT OF FACTS

16

60. On Monday, May 25, 2020, a Minneapolis police officer brutally murdered

17 George Floyd, an unarmed and non-resisting Black man, while other police officers stood by

18 and watched.

19

61. Innumerable people held peaceful protests across the world condemning police

20 brutality and systemic racism in the wake of the state sponsored and/or excused murders of

21 George Floyd, Breonna Taylor, Ahmaud Abrey, Tony McDade, and countless others.

22 Throughout Oakland, protesters honored the men and women killed by local law enforcement:

23 Oscar Grant III, Alan Blueford, Yuvette Henderson, Richard Perkins, Jr., Dujuan Armstrong,

24 Kayla Moore, Jody Mack Woodfox, Jessica Williams, Jesus Delgado Duarte, Jehad Eid,

25 Sahleem Tindle, and countless others.

26

62. These constitutionally protected and essential protests occurred and continue

27 amid an unprecedented public health crisis. Novel coronavirus, COVID-19, has killed over

28 200,000 Americans and continues to spread. The virus is commonly understood to be

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Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 8 of 26

1 transmittable through exposure to respiratory droplets. Public health officials advised people

2 to wear masks if they were outside and to stay six feet apart. In an effort to mitigate the

3 number of people infected, the County of Alameda enforced a shelter-in-place order and social

4 distancing protocols.

5

63. In anticipation of the protest organized for the evening of May 29, 2020, lawyers

6 on behalf of the National Lawyers Guild, S.F. Bay Area Chapter, emailed Chief Manheimer,

7 Assistant Chief Darren Allison, Deputy Chiefs Leronne Armstrong and Roland Holmgren,

8 Mayor Libby Schaaf, and City Attorney Barbara Parker to remind them of Oakland and the

9 OPD’s legal obligation to comply with the OPD Crowd Control Policy and other policies.

10

64. At about 8 p.m. on May 29, 2020, demonstrators assembled at Broadway and

11 14th Street in Oakland to stage a peaceful protest. The demographic of demonstrators included

12 people of all different heritages and ages. Upon information and belief, the youngest person in

13 attendance was ten years old. Many demonstrators were high school students. The

14 demonstrators practiced social distancing by wearing masks. The protest was peaceful. Police

15 presence, however, increased.

16

65. At all relevant times, no incident occurred justifying OPD to characterize the

17 protests as an unlawful assembly or to use force against the demonstrators.

18

66. At around 9:30 p.m., through a loudspeaker, OPD wrongly declared the protest

19 an unlawful assembly. The announcement was inaudible and/or unclear.

20

67. OPD then threw teargas canisters and additional flashbang grenades into the

21 crowd, and shot rubber bullets at the demonstrators. OPD also used stun guns and batons

22 against demonstrators, who tried to disperse.

23

68. Many demonstrators were forced to remove their masks due to the chemical

24 irritants clinging to the cloth and in the air, making it hard to breathe. Protesters coughed as a

25 result of the chemical irritants, which is a known reaction to their use. As a result, many

26 demonstrators were involuntarily made more vulnerable and susceptible to COVID-19

27 infections.

28

69. OPD targeted journalists. Journalists were detained and struck by projectiles

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Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 9 of 26

1 while wearing their press badges.

2

70. OPD targeted medics and demonstrators with clearly marked crosses on their

3 bags.

4

71. Tear gassed witnesses complained of eye and throat irritation and difficulty

5 breathing.

6

72. On May 30, 2020, police shot Daniel Sanchez in the eye with a rubber bullet at

7 close range.

8

73. Johnathan Farmer attended the protest on May 30, 2020. Police shot him in the

9 leg with a projectile and fired tear gas into the crowd. His leg was sore, cut, and badly bruised,

10 and he was limping for about a week.

11

74. Abner Hougie participated in the protest on the night of May 31, 2020. OPD

12 kettled him along with 200 or so other peaceful demonstrators. He observed OPD firing tear

13 gas and flashbang grenades without provocation or warning.

14

75. On June 1, 2020, starting at approximately 4 p.m., a group of young people

15 participated in a peaceful march from Oakland Technical High School to the Oakland Police

16 Administration Building. An estimated 15,000 demonstrators participated, including many

17 young Black and Brown high school students.

18

76. At the onset, the organizers announced that the protest was peaceful and

19 explicitly called for “no destruction.”

20

77. The organizers planned for the protest to end at the Oakland Police

21 Administration Building with speeches. Due to obstruction by OPD, the protest ended short of

22 the final destination and instead concluded at Oscar Grant Plaza.

23

78. Nonetheless, a group of demonstrators continued from Oscar Grant Plaza

24 towards the Police Administration Building. At Washington Street and 8th Street, the

25 demonstrators met a line of police outfitted in full riot gear. The OPD kettled the group via line

26 formations and by way of their vehicles, blocking opportunities for egress.

27

79. At approximately 5 p.m., after the march had already started, the County of

28 Alameda and the City of Oakland began disseminating the message that a curfew would begin

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Case 3:20-cv-03866-JCS Document 71 Filed 10/20/20 Page 10 of 26

1 just three hours later.

2

80. Also, on June 1, 2020, the City of Oakland declared a local emergency and issued

3 a curfew, effective Monday, June 1, 2020, from 8 p.m. to 5 a.m.

4

81. Without warning and before the curfew went into effect, the OPD tear gassed,

5 threw flashbangs, and started shooting rubber bullets at the confined demonstrators.

6

82. Many demonstrators were shot in the back as they were fleeing the violent

7 measures employed by police, only to be impeded by police lines kettling them from all

8 directions.

9

83. The indiscriminate use of tear gas continued for an hour or so, forcing

10 demonstrators to intermittently remove their masks to breathe and to clean their faces,

11 making them more vulnerable and susceptible to COVID-19 infections.

12

84. OPD then arrested demonstrators and applied zip ties to their wrists in lieu of

13 handcuffs. The demonstrators were cited for breaking curfew, including those who otherwise

14 intended to comply but were trapped by OPD.

15

85. Danielle Gaito attended the protest on June 1, 2020, and observed many minors

16 present at the march. She witnessed OPD officers brutalize a man who had his arms up and

17 OPD officers roughly drag a demonstrator who was kneeling. She heard defendant Sergeant

18 Gonzales tell officers to find any reason to cite them.

19

86. Erica Hruby attended the protest on June 1, 2020, and observed police fire

20 flashbang grenades and tear gas at peaceful demonstrators. She was later arrested on

21 Broadway Street between 14th Street and 15th Street and observed that OPD were not wearing

22 masks despite being in close contact with the demonstrators.

23

87. Emily Juneau was kettled with a group of protestors on June 1, 2020, at

24 Broadway Street and 8th Street at around 7:30 p.m. She did not hear warnings from the OPD.

25 She observed an order given to OPD to disperse the demonstrators even though OPD had

26 blocked all exits from the area. She also heard Sergeant Gonzales tell officers to “find

27 something to cite them with.” She did not observe violent demonstrators, or Molotov

28 cocktails.

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1

88. Upon information and belief, OPD’s Crowd Management and Crowd Control

2 Policy does not authorize the use of “kettling” as a crowd control tactic. Kettling, which derives

3 from a German military term referring to an army surrounded by a much larger force, is a

4 police tactic whereby officers confine a large group of people to a designated space by

5 surrounding them on all sides so that there is no escape. By doing so, the officers effectively

6 control people’s movements.

7

89. Kettling leads to the unlawful seizure of people without a reasonable basis,

8 creates panic, elevates tensions, and chills speech. OPD accomplished this by forming police

9 lines and by driving vehicles towards demonstrators.

10

90. OPD used tear gas and kettled demonstrators. After demonstrators were kettled,

11 OPD used additional tear gas, flashbang grenades, and projectiles against the demonstrators,

12 who, at that point, were unable to escape the kettle.. This tactic denied demonstrators the

13 ability to stay socially distant from one another and trapped depmsointrators in a cloud of tear

14 gas .

15

91. Oakland called on its mutual aid network for crowd control assistance at the

16 protests. On June 3, 2020, at a press conference, Chief Manheimer stated that OPD briefed,

17 instructed, and otherwise controlled the assisting officers, but refused to hold them

18 accountable to Oakland and OPD’s policies.

19

PLAINTIFFS' ALLEGATIONS

20

92. Members and/or supporters of plaintiffs APTP and CRC participated in the

21 protests on May 29, 2020 and June 1, 2020.

22

93. Members and/or supporters of APTP and CRC were injured by the OPD tactics

23 described above, including the use of tear gas, flashbang grenades, and shooting projectiles at

24 protestors. As a result of the police conduct described above, members and supporters of APTP

25 and CRC were discouraged from participating in protests and from exercising their rights to

26 free speech.

27

94. Plaintiff Akil Riley is 19-years-old, grew up in Oakland, and now attends Howard

28 University. At the May 29, 2020, protest, he was hit with a flashbang grenade. He saw the

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1 police shoot teargas and flashbang grenades indiscriminately into the crowd. OPD officers

2 were attacking people even as they were trying to comply with OPD’s instructions. Mr. Riley

3 helped organize the 15,000 person youth-led march on June 1, 2020.

4

95. On May 29, 2020, police shot a flashbang grenade, hitting plaintiff Andrea

5 Marina Costanzo in the leg. It burned through her jeans, causing her lacerations and bruising.

6 She has permanent scarring as a result.

7

96. On May 29, 2020, the police teargassed plaintiff Tara Rose and hit her between

8 the legs with a projectile. It burned both her legs causing second degree burns.

9

97. Plaintiff Katherine Sugrue attended the May 29, 2020, protest. The police were

10 launching tear gas directly at people. A tear gas canister went off right underneath her, and she

11 felt like she was going to die. She had eye irritation and breathing problems so severe that she

12 had to go to the hospital.

13

98. On May 29, 2020, plaintiff Katie Johnson was at the protest where she saw police

14 throwing numerous tear gas canisters and bean bag projectiles directly at people. She was hit

15 in the ankle, thigh, and chest, and shrapnel hit her elbow. She was hit in the mouth by a tear

16 gas canister.

17

99. On May 29, 2020, plaintiff Melissa Myara attended a peaceful protest. The police

18 tear gassed her and set off flashbang grenades near her. Ms. Myara has asthma and was

19 terrified because she could not breathe and because of the flashbang grenades. She felt that the

20 police turned the peaceful protest into a warzone.

21

100. On May 29, 2020, plaintiff Nicole Puller was tear gassed at the protest. A dense

22 fog of gas surrounded her. People around her began coughing and took off their masks. Ms.

23 Puller ran from the coughing people because she did not want to be exposed to COVID-19. Her

24 lungs and eyes burned and hurt.

25

101. Plaintiff Lindsey Morris attended this May 29, 2020, protest. Between 9:30 p.m.

26 and 10 p.m., she saw police throw tear gas and smoke bombs into the large crowd. People

27 stampeded to get away from the gas. Ms. Morris was was knocked over and suffered a broken

28 ankle. She was in the worst pain of her life and needed surgery for the injury.

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1

102. At around 10:15 p.m. on May 29, 2020, OPD shot tear gas at plaintiff Michael

2 Cooper and other demonstrators on Clay Street and 14th Street as they were marching and

3 chanting, “Hands up, Don’t shoot.” Cooper had attended as a journalist. He repeatedly asked

4 police where they were directing media, or where the press line was drawn, and they refused to

5 answer him. As a result, he remained with the crowd. When police fired tear gas in the crowd,

6 he was gassed, and he developed blisters on his face and skin. He saw clouds of tear gas.

7

103. Plaintiff Maria Gisella Ramirez was at the May 29, 2020, protest. She saw police

8 shoot teargas and flashbang grenades into the crowd. She ran with a group of people trying to

9 get away. The police corralled the group into a parking lot where they shot numerous canisters

10 and tear gas into the group, causing a stampede. She was able to walk away and went to the

11 corner of 27th Street and Broadway. The police arrived and threw a flashbang grenade in the

12 air. It hit her forehead and cut her.

13

104. On the evening of May 29, 2020, plaintiff Ashwin James Rupan was near

14 Webster Street between 30th Street and Hawthorn Street with a crowd of demonstrators. Police

15 kettled the group and shot teargas and flashbang grenades into the crowd, which caused a

16 stampede. The area was covered in smoke. He ran with the crowd, was pushed, and fell into a

17 deep ditch of about ten feet. He was stuck in the ditch and could not walk. No-one could find

18 him. He suffered a broken ankle.

19

105. Plaintiff Ian McDonnell participated in the peaceful protests in Oakland

20 beginning on May 29, 2020. At the protests, Oakland Police Department officers shot tear gas,

21 flashbang grenades, and rubber bullets at him and other demonstrators who were peacefully

22 protesting. He observed others, including journalists, get injured as a result. At the May 29,

23 2020, protest, McDonnell displayed a cross on his bag, the universal symbol for medical

24 assistance. He subsequently removed it, however, because he witnessed OPD targeting medics

25 and/or demonstrators providing medical care. On June 1, 2020, Officer D’Orso atrrested Mr.

26 McDonnell. He used zip ties to handcuff Mr. McDonnell before citing and releasing him for

27 breaking curfew.

28

106. On or about May 30, 2020, at approximately 10 p.m., plaintiff Daniel Sanchez

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1 was standing at or near the corner of Broadway Street and 14th Street in Oakland. He was

2 simply watching the protests when a police officer shot him in the eye with a rubber bullet at

3 close range. Upon information and belief, the officer was a member of the OPD. He required

4 eye surgery.

5

107. Plaintiff Johnathan Farmer attended the protest on May 30, 2020. Police shot

6 him in the leg with a projectile and fired tear gas into the crowd. His leg was sore, cut, and

7 badly bruised, and he was limping for about a week.

8

108. Plaintiff Niko Nada participated in the peaceful protests in Oakland beginning on

9 May 29, 2020. At the June 1 protest, OPD tear gassed demonstrators, forcing him and his

10 companions to continue up Broadway towards 14th Street. Officers outfitted in riot gear

11 kettled him and other demonstrators and demanded that they sit. After a police supervisor,

12 name unknown, who was not wearing riot gear, made a gesture, Officer Fought grabbed Mx.

13 Nada and put him in a chokehold. Officer Fought pushed Mx. Nada to the ground, got on top

14 of him, and put his knee into his back with all his weight before zip tying Nada’s hands

15 together over his thumb. Officer Fought then forcibly removed Mx. Nada by lifting him and

16 separating him from his companions. Mx. Nada complained about the tightness of the zip ties.

17 He was cited and released for breaking curfew. Mx. Nada suffered physical injuries, including

18 bruises and purple fingers, requiring him to seek medical attention.

19

109. Plaintiff Azize Ngo participated in the June 1, 2020, youth-led protest beginning

20 at Oakland Technical High School and ending at City Hall. At the end of the protest, Mx. Ngo

21 heard a loud bang and saw a man with a bloody ear stating that he had been hit with a rubber

22 bullet. Mx. Ngo saw crowds of people who had been tear gassed. They were distraught by what

23 they experienced. OPD officers kettled Mx. Ngo and others and tackled kneeling people.

24 Officers with automatic weapons stood over Mx. Ngo and others whom OPD had forced into

25 lying in a pile on the ground. OPD officers acted without masks or regard for social distancing.

26

110. Plaintiff Jennifer Li sustained injuries including swelling, bruising, soreness, and

27 blisters to her person when OPD threw a flashbang grenade and stinger ball directly into her

28 back as she was walking away from the June 1, 2020, protest. The flashbang grenade exploded

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1 on her back, causing her to stumble forward. She also experienced ringing in her ear and

2 suffered a perforation in her left ear drum.

3

111. On June 1, 2020, plaintiff Maria Gisella Ramirez was first tear gassed at around

4 7:30 p.m. She saw a wall of gas. The gas burned her skin and made her face mask stick to her

5 skin. She is a high school teacher and remained at the demonstration to ensure that the high

6 school students who were present were cared for and could make it home safely. At around 8

7 p.m., some armored trucks and SUVs drove up. The police ran towards her and others as she

8 was trying to leave the area to go to a wellness center nearby. She was cited and detained for

9 about an hour with extremely tight zipties that injured her.

10

112. Plaintiff Sean Canaday attended the protest on June 1, 2020, where police shot

11 him in the ear with a projectile. A tear gas canister hit him in the heel. There was intense tear

12 gas. He went to the emergency room that night for stitches. He suffered a concussion as a

13 result.

14

113. Plaintiff Michael Cohen attended the protest with his daughter on June 1, 2020.

15 A flashbang grenade detonated very close to him, resulting in a headache and ringing in his

16 ears for 24 hours. Projectiles hit his right thigh and backside, which was bruised for one

17 month. He experienced eye irritation, cough, and choking due to the tear gas.

18

114. Plaintiff Lindsey Filowitz was walking outside on June 1, 2020, to get some relief

19 from quarantine. She saw a peaceful protest and decided to stay. Suddenly, she heard loud

20 sounds and then saw tear gas canisters flying into the crowd. She ran but because she had

21 inhaled the gas, she could not breathe and had to stop. She became very sick with chest pains,

22 coughing, and diarrhea, and was mostly bedridden for two weeks. She attempted to attend

23 another protest on June 3, 2020, but was too gripped by anxiety to stay.

24

115. Plaintiff Danielle Gaito attended the peaceful youth protest on June 1, 2020. She

25 saw that police were not wearing masks and she was concerned about COVID-19. The police

26 started throwing flashbang grenades and then tear gas. At about 7:40 p.m., after police used

27 force against the crowd, the police announced that the gathering was an unlawful assembly

28 and declared that there was a curfew. A police officer threw a flashbang grenade at her arm.

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1 She saw Officer Patrick Gonzales grab a Latinx woman by the arm. She saw another officer

2 grab a Black man who was on his knees and push him into the ground. While the police were

3 arresting her, she kept asking them to wear masks, which they did not do.

4

116. Plaintiff Bryanna Kelly attended the June 1, 2020, protest. Around 7:40 p.m., the

5 police began throwing tear gas and projectiles. The crowd panicked. Ms. Kelly ran to get away

6 and was hit in her left knee with a flashbang grenade. She thought they had blown out her

7 knee. She was in pain and limping for weeks. The anxiety and grief from that day has stopped

8 her from attending further protests.

9

117. Plaintiff Leila Mottley was tear gassed by OPD on on June 1, 2020. She was 17-

10 years-old at the time. She heard the police issue a muffled announcement, and then flashbang

11 grenades and tear gas erupted around her. Her skin and lungs have been irritated since then.

12 She had to run through the gas to avoid getting hit by flashbang grenades. She was terrified.

13

118. Plaintiff Nicole Puller was tear gassed on June 1, 2020. She saw people around

14 her bleeding and heard yells of “I’m shot!” The police arrested her for violating curfew

15 although she was trying to leave. She was handcuffed for two and a half hours. An officer asked

16 her if the cuffs were too tight, and she said yes, but he took no action. The police were not

17 wearing masks.

18

119. Plaintiff Aaron Rogachevsky joined the June 1, 2020, protest. He was in the

19 crowd when the police tear gassed the crowd. He had difficulty breathing for at least a day, and

20 a cough and runny nose for a week.

21

120. Plaintiff Christina Stewart is a nurse who lives in Sacramento and works in

22 Oakland. She is on the frontlines fighting COVID-19. On June 1, 2020, she was staying at the

23 Marriott on 11th and Broadway. She decided to attend the protest with her teenage daughter.

24 She joined the protest with her daughter at 7:14 p.m. when the march passed by her hotel,

25 headed to 8th and Broadway. At around 7:42 p.m, she heard a “pop, pop, pop” and teargas

26 canisters landed feet away from her. She and her daughter tried to leave. The teargas made

27 them disoriented and sick. They went home as soon as they could. Ms. Stewart is wary of

28 attending another protest.

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1

121. Plaintiff Tayah Stewart, Ms. Stewart’s daughter, was at the peaceful protest with

2 her mother. She was tear gassed for no reason with no warning. After that, she stopped

3 attending protests in any city.

4

122. Plaintiff Katherine Sugrue attended the June 1, 2020, protest. She saw police put

5 on helmets and pull out flashbang grenades. The police were pointing people out and throwing

6 flashbang grenades and tear gas canisters. They were also shooting rubber bullets directly at

7 people. Later, she was kettled, and observed three or four officers grab a child. Police threw her

8 partner to the ground and threw a flashbang greande near his head. When media arrived, the

9 police became less aggressive. The police informed her that if she was caught at protests in the

10 area again, they would arrest her and take to Santa Rita jail. This along with the health issues

11 mader her apprehensive of participation in protests against police brutality.

12

123. On June 1, 2020, Plaintiff Celeste Wong marched down Broadway towards the

13 OPD Administration building. She and the other protestors stopped and kneeled at 8th and

14 Broadway, at around 8:00 p.m. Police launched flashbang grenades and tear gas into the

15 crowd. They released at least ten canisters. The weapons irritated her eyes, lungs, and made it

16 so hard to breathe she had to remove her mask.

17

124. On June 1, 2020, plaintiff Qiaochu Zhang joined the youth protest at 5:30 p.m.

18 He observed police launch projectiles and tear gas at protestors at 8th and Broadway. The

19 police announcements were inaudible. He tried to run to his home two blocks away at 9th and

20 Franklin, but all of Broadway was covered in teargas. He kneeled on the street due to distress.

21 The police then kettled him and others. An officer told him he was being cited for being

22 present in the area after the protest was declared unlawful. Mr. Zhang did not hear an unlawful

23 assembly announcement and he had not intended to remain in the area after being tear gassed,

24 but he was trapped by the gas and the surrounding police. Police told him that he would go

25 straight to Santa Rita jail if he protested again.

26

125. At all material times the actions and omissions of each defendant were

27 intentional, and/or wanton, and/or willful, and/or reckless, and/or callous, and/or malicious,

28 and/or deliberately indifferent to plaintiffs’ rights, and/or grossly negligent, and/or negligent.

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1

126. Plaintiffs suffered unnecessary pain and bruising, trauma, as well as ongoing

2 stress and axiety, as a result of defendants’ tortious, wrongful, and constitutionally improper

3 conduct.

4

127. Plaintiffs bring this action on behalf of themselves and all others similarly

5 situated pursuant to Federal Rule of Civil Procedure 23(a) on the basis that there is a well-

6 defined community of interest in this litigation, the proposed class is easily ascertainable, and

7 the proposed class is quite numerous.

8

128. Plaintiffs seek to represent the following class: All demonstrators who

9 participated and/or intended to participate in the protests beginning on May 29, 2020 in

10 Oakland.

11

129. Plaintiffs Akil Riley, Ian McDonnell, Niko Nada, Michael Cooper, Lindsey

12 Filowitz, Danielle Gaito, Melissa Miyara, Leila Mottley, Aaron Rogachevsky, Chrsitina Stewart,

13 Tayah Stewart, Katherine Sugrue, Celeste Wong, and Qiaochu Zhang seek to represent the

14 following subclass: all demonstrators who inhaled tear gas at the protests in Oakland

15 beginning on May 29, 2020. This subclass will be referred to as the “tear gassed

16 demonstrators.”

17

130. Plaintiffs Akil Riley, Niko Nada, Jennifer Li, Sean Canaday, Michael Cohen,

18 Andrea Constanzo, Johnathan Farmer, Katie Johnson, Bryanna Kelly, Lindsey Morris, Maria

19 Gisella Ramirez, Tara Rose, Ashwin James Rupan, and Daniel Sanchez seek to represent the

20 following subclass: all demonstrators who sustained physical injuries from flashbang grenades

21 and/or other projectiles thrown or launched at them at the protests in Oakland beginning on

22 May 29, 2020. This subclass will be referred to as the “projectile injured demonstrators.”

23

131. Plaintiffs Ian McDonnell, Niko Nada, Azize Ngo, Maria Gisella Ramirez, Nicole

24 Puller, Danielle Gaito, and Qiaochu Zhang seek to represent the following subclass: all

25 demonstrators arrested and/or cited for a violation of the 8 p.m. curfew in effect on June 1,

26 2020. This subclass will be referred to as the “cited demonstrators.”

27

132. Plaintiffs and the putative class and subclasses were subjected to the

28 constitutional and statutory violations described in this complaint. Upon information and

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1 belief, the legal and factual issues are common to the class and affect all class members.

2

133. Plaintiffs reserve the right to amend or modify the class and subclass

3 descriptions with greater specificity or further division into subclasses, as well as to limit the

4 class or subclasses to particular issues, as warranted.

5

Numerosity

6

134. The potential members of the class and of the subclasses as defined are so

7 numerous that joinder of all of them is impracticable. While the precise number of class

8 members has not been determined at this time, plaintiffs are informed and believe that the

9 class is comprised of more than 1000 individuals. The potential members of each subclass may

10 exceed 100 demonstrators.

11

Commonality and Predominance

12

135. There are questions of law and fact that are common to the class and subclasses

13 and predominate over individualized questions. These common questions of law and fact

14 include, without limitation:

15

1. Does the use of less-lethal weapons deployed by OPD infringe upon

16

demonstrators’ constitutional rights to be free of excessive force, to peaceably

17

assemble, to freedom of expression, and freedom from viewpoint discrimination

18

under the First Amendment?

19

2. Has the City of Oakland manifested a failure to adequately train and supervise its

20

police officers and members of its mutual aid network to properly utilize tear gas,

21

flashbang grenades, rubber bullets and other non-lethal weapons?

22

3. Are there provisions omitted from the City of Oakland's and OPD’s crowd control

23

policy and practices that are necessary to protect demonstrators’ constitutional

24

rights?

25

4. Did the City of Oakland knowingly place demonstrators in a danger created by its

26

affirmative unlawful action?

27

5. Has the City of Oakland exhibited deliberate indifference to the unconstitutional

28

conduct complained of herein?

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1

6. Did the City of Oakland falsely arrest residents for violating curfew?

2

Typicality

3

136. Named plaintiffs’ claims are typical of the claims of putative class members.

4 Plaintiffs and all members of the putative class sustained injuries and damages arising out of

5 and caused by defendants' course of conduct, which, as alleged herein, violates federal and

6 California law.

7

Adequacy of Representation

8

137. Plaintiffs adequately represent and protect the interests of class and subclass

9 members. Plaintiffs have no interests that are adverse to the class. Plaintiffs are similarly

10 situated to other class and subclass members. Counsel who represents plaintiffs are competent

11 and experienced in litigating civil rights class actions, police misconduct cases, and class

12 actions generally.

13

Superiority of Class Action

138. A class action is superior to other available means for the fair and efficient 14

adjudication of this controversy. Individual joinder of all class members is not practicable, and 15

questions of law and fact common to the class predominate over any questions affecting only 16

individual members of the class. Each member of the class has been damaged and is entitled to 17

recovery by reason of the unlawful policies and practices described herein. Class members are 18

unlikely to otherwise obtain effective representation to ensure full enforcement of their rights 19

absent class certification. 20

139. Class action treatment will allow those similarly situated persons to litigate their 21

claims in the manner that is most efficient and economical for the parties and the judicial 22

system. Plaintiffs are unaware of any difficulties that are likely to be encountered in the 23

management of this action that would preclude its maintenance as a class action. 24

140. Further, plaintiffs seek declaratory and injunctive relief, which is a remedy well25

suited for class action litigation. 26

EXHAUSTION OF ADMINISTRATIVE REMEDIES 27

141. On August 27, 2020, plaintiffs presented a claim pursuant to California 28

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1 Government Code §§ 910, et seq. to the City of Oakland.

2

142. On September 18, 2020, the City of Oakland denied plaintiffs’ claim.

3

FIRST CLAIM FOR RELIEF

First Amendment Violation

4

(By all plaintiffs against all defendants.)

5

(42 U.S.C. § 1983)

6

143. Plaintiffs and plaintiff class incorporate by reference all of the foregoing

7 paragraphs as though fully set forth herein.

8

144. By virtue of the foregoing, defendants violated plaintiffs’ rights to freedom of

9 speech, assembly, and association under the First Amendment to the United States

10 Constitution, when acting under color of law, they declared the peaceful protests unlawful

11 assemblies and kettled, tear gassed, shot flashbang grenades and other projectiles at plaintiffs.

12 At the June 1 protest, a curfew order that was not narrowly tailored, and without sufficient

13 notice, was issued to further suppress the plaintiffs’ protected First Amendment activities

14 including the right to free speech and assembly.

15

SECOND CLAIM FOR RELIEF

Fourth Amendment Excessive Force and Unlawful Seizure

16

(By all plaintiffs against all defendants.)

(42 U.S.C. § 1983) 17

145. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as 18

though fully set forth herein. 19

146. By virtue of the foregoing, defendants violated plaintiffs’ rights to be free from 20

excessive force and unlawful seizure when acting under color of law, they kettled, tear gassed, 21

and shot flashbang grenades and other projectiles at plaintiffs. 22

23

THIRD CLAIM FOR RELIEF

24

Fourteenth Amendment Substantive Due Process

(By all plaintiffs against all defendants.)

25

(42 U.S.C. § 1983)

26

147. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as

27 though fully set forth herein.

28

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1

148. By virtue of the foregoing, defendants violated plaintiffs’ rights to substantive

2 due process, when, acting under color of law, they affirmatively and indiscriminately kettled,

3 tear gassed, and shot flashbang grenades and other projectiles at plaintiffs with deliberate

4 indifference to the plaintiffs’ personal and physical safety during a pandemic.

5

FOURTH CLAIM FOR RELIEF

Monell and Supervisory Liability

6

(By all plaintiffs against defendants City of Oakland and Chief Manheimer.)

7

(42 U.S.C. § 1983)

8

149. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as

9 though fully set forth herein.

10

150. Oakland and Chief Manheimer have systematically failed to adequately select,

11 train, and supervise police officers under their control to prevent these officers from

12 interfering with people’s First Amendment rights to freedom of speech, assembly, and

13 association and to refrain from punishing people in retaliation for the exercise of these rights.

14

151. Oakland and Chief Manheimer have failed to adequately hold officers

15 accountable for violations of people’s rights, thereby condoning and encouraging it.

16

152. Oakland and Chief Manheimer have systematically failed to adequately select,

17 train, and supervise police officers under their control to refrain from engaging in excessive

18 force against people exercising their First amendment rights.

19

153. Oakland and Chief Manheimer have failed to adequately hold officers

20 accountable for violations of people’s rights, thereby condoning and encouraging these

21 violations.

22

154. The failures of Oakland and Chief Manheimer as set forth herein constitute

23 unconstitutional customs and practices of Oakland.

24 FIFTH CLAIM FOR RELIEF

25

Assault and Battery

(By all plaintiffs against all defendants) 26

27

155. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as

28 though fully set forth herein.

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1

156. By the above-described acts and/or omissions and/or failures to supervise

2 and/or failure to institute and execute adequate training and policies on part of defendants, as

3 alleged herein, plaintiffs were assaulted and battered, thereby entitling plaintiffs to damages

4 pursuant to California law.

5

157. The aiding and abetting and/or failure to intervene and/or failure to prevent the

6 assault and battery gives rise to liability on the part of other, to be identified City of Oakland

7 employee defendants.

8

SIXTH CLAIM FOR RELIEF

Bane Act

9

(By all plaintiffs against all defendants)

10

(Cal. Civil Code § 52.1)

11

158. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as

12 though fully set forth herein.

13

159. By their acts, omissions, customs, and policies, defendants, acting in

14 concert/conspiracy, as described above, and with threats, intimidation, and/or coercion,

15 violated plaintiffs’ rights under California Civil Code § 52.1 and the following clearly

16 established rights under the United States Constitution and California Constitution and law:

17 the First, Fourth and Fourteenth Amendments to the United States Constitution.

18

SEVENTH CLAIM FOR RELIEF False Arrest and False Imprisonment

19

(By all plaintiffs against all defendants)

20

160. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as

21 though fully set forth herein.

22

161. By the above-described acts and/or omissions and/or failures to supervise

23 and/or failure to institute and execute adequate training and policies on the part of

24 defendants, as alleged herein, plaintiffs were falsely arrested and falsely imprisoned, thereby

25 entitling plaintiffs to damages pursuant to California law.

26

162. By virtue of the foregoing, defendant City of Oakland is liable under California

27 Government Code section 815.2 for the acts of its employees, each of whom acted within the

28 course and scope of his employment.

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1

163. The aiding and abetting and/or failure to intervene and/or failure to prevent this

2 arrest gives rise to liability on the part of other, to be identified City oif Oakland employee

3 defendants.

4

EIGHTH CLAIM FOR RELIEF

Negligence

5

(By all plaintiffs against all defendants)

6 164. Plaintiffs and plaintiff class incorporate by reference the foregoing paragraphs as
7 though fully set forth herein.
8 165. At all material times, each defendant owed each plaintiff the duty to act with due
9 care in the execution and enforcement of any right, law, or legal obligation; and reasonable
10 care.
11 166. These general duties of reasonable care and due care owed to plaintiffs by all
12 defendants included, but were not limited to, the following specific obligations: violating
13 Constitutional rights, and the right to protection from bodily restraint, or personal insult, as
14 secured by California Civil Code section 43, to conduct a reasonable investigation before
15 effecting an arrest, and to refrain from abusing authority.
16 167. By the acts and/or omissions alleged above, defendants acted negligently and
17 breached their duty of due care owed to plaintiffs, which foreseeably resulted in the suffering
18 of damages by Plaintiffs.
19 168. By virtue of the foregoing, defendant City of Oakland is liable under California
20 Government Code section 815.2 for the acts of its employees, each of whom acted within the
21 course and scope of his employment.
22

23 INJUNCTIVE AND DECLARATORY RELIEF
24 169. Plaintiffs’ only means of securing complete and adequate relief is to also seek
25 declaratory and injunctive relief to provide plaintiffs substantial and complete protection from
26 defendants unlawful policies and practices. Remedies at law are inadequate. Plaintiffs
27 therefore seek both legal damages and equitable remedies in the form of declaratory and
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1 injunctive relief against defendants.

2

DAMAGES

3

170. As a result of the actions of defendants as set forth above, plaintiffs have been

4 injured and have suffered damages as follows:

5

a. They have had their rights to peaceably assemble and redress their

6 grievances irreparably harmed;

7

b. They have suffered physical and psychological harm;

8

c. They have incurred expenses for medical care;

9

d. They have lost income; and

10

e. They have incurred property loss.

11

WHEREFORE, plaintiffs request that this Court grant them relief as follows:

12

1. A permanent injunction barring defendants from engaging in the

13 unconstitutional conduct described herein and imposing appropriate remedial measures to

14 prevent the repetition of such conduct in the future;

15

2. Declaratory relief to determine that the acts and policies described herein

16 violated the rights of the plaintiffs and class members;

17

3. A determination that this action may proceed as a class action under Rule 23(b)

18 of the Federal Rules of Civil Procedure;

19

4. Designation of plaintiffs as class representatives and designation of plaintiffs’

20 counsel as class counsel;

21

5. General damages, in an amount to be determined;

22

6. Special damages, in an amount to be determined;

23

7. Nominal damages;

24

8. Punitive damages where appropriate;

25

9. Reasonable attorneys’ fees under 42 U.S.C. § 1988;

26

10. Costs of suit; and

27

11. Such other and further relief as the Court may deem proper.

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1

DEMAND FOR TRIAL BY JURY

2

Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal Rules of

3 Civil Procedure.

4

5

Dated: October 20, 2020

SIEGEL, YEE, BRUNNER & MEHTA

6

By: __/s/ Dan Siegel______

7

Dan Siegel

8

ANNE BUTTERFIELD WEILLS, SBN 139845

JANE BRUNNER, SBN 135422

9

SONYA Z. MEHTA, SBN 294411

10

EMILYROSE JOHNS, SBN 294319 ANDREW CHAN KIM, SBN 315331

11

SIEGEL, YEE, BRUNNER & MEHTA

Email: abweills@gmail.com;

12

janebrunner@hotmail.com;

13

sonyamehta@siegelyee.com; emilyrose@siegelyee.com; chankim@siegelyee.com

14 Attorneys for Plaintiffs

15

ANTI POLICE-TERROR PROJECT,

16

COMMUNITY READY CORPS, SEAN CANADAY, MICHAEL COHEN, MICHAEL COOPER, ANDREA

17

MARINA COSTANZO, JOHNATHAN FARMER,

LINDSEY FILOWITZ, DANIELLE GAITO, KATIE

18

JOHNSON, BRYANNA KELLY, JENNIFER LI, IAN

19

McDONNELL, MELISSA MIYARA, LINDSEY MORRIS, LEILA MOTTLEY, NIKO NADA, AZIZE

20

NGO, NICOLE PULLER, MARIA RAMIREZ, AKIL

RILEY, AARON ROGACHEVSKY, TARA ROSE,

21

ASHWIN RUPAN, DANIEL SANCHEZ, CHRISTINA

22

STEWART, TAYAH STEWART, KATHERINE SUGRUE, CELESTE WONG, and QIAOCHU

23

ZHANG; on behalf of themselves and similarly

situated individuals.

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