Case3:11-cv-05498-RS Document1 Filed11/14/11 Page1 of 18

ALAN L. SCHLOSSER (#49957) 1 MICHAEL T. RISHER (#191627)

2 LINDA LYE (#215584)

ACLU Foundation ofNorthern California,

3 39 Drumm Street

San Francisco, CA 94111

4 (415) 621-2493; (415) 255-1478

5

aschlosser@aclunc.org, mrisher@aclunc.org, llye@aclunc.org

6 Attorneys for Plaintiffs Kerie Campbell, Marcus Kryshka, and ACLU-NC
7

8 NATIONAL LAWYERS GUILD

9 RACHEL LEDERMAN, (#130192) Rachel Lederman & Alexsis C. Beach,
10 Attorneys at Law 558 Capp Street
11 San Francisco, CA 94110 12 (415) 282-9300; fax (415) 285-5066
rlederman@2momslaw.com

13 Attorneys for Plaintiffs Timothy Scott Campbell,

14 Marc McKinnie, and Michael Siegel

ft Next 15

ofAdditional Attorneys on Page)

16

UNITEDSTATESDISTRICTCOURT

l?s

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO~Af r!SION

18

5 4 9 8

19 TIMOTHY SCOTT CAMPBELL, KERIE

) CIVIL ACTION No.

CAMPBELL, MARCUS KRYSHKA, MARC ) 20 MCKINNIE, MICHAEL SIEGEL, AMERICAN ) COMPLAINT FOR DAMAGES &

21 CNIL LIBERTIES UNION OF NORTHERN CALIFORNIA,
22 Plaintiffs,
23

) INJUNCTIVE AND ) DECLARATORY RELIEF
) ) DEMAND FOR JURY TRIAL )

24 v.

)

CITY OF OAKLAND, INTERIM CHIEF OF )

25 POLICE HOWARD JORDAN,

)

)

26

Defendants.

)

27

28

[PROPOSED] TRO AND ORDER TO SHOW CAUSE RE: PI, Case N o . - - - - - - -

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page2 of 18
,'

1 (List ofAdditional Attorneys)
2 CAROL SOBEL, (# 84483)
3 429 Santa Monica Blvd #550 Santa Monica, CA 90401-3439
4 (310) 393-3055; fax 310 451-3858
carolsobel@aol.com 5
BOBBIE STEIN (#113239) 6 503 Dolores Street, #201 7 San Francisco, CA 94110-1564
(415) 255-0301; fax (510) 601-5780
8 bstein8692@aol.com
9 R. MICHAEL FLYNN (#258732) Flynn Law Office
10 170 Columbus Street, Ste 300 11 San Francisco, CA 94133
(415) 989-8000 x 24; fax (415) 989-8028 12 rmflynnlaw@gmail.com
13 Attorneys for Plaintiffs Timothy Scott Campbell,
14 Marc McKinnie, and Michael Siegel
15 JAMES B. CHANIN (# 76043)
16 JULIE M. HOUK (# 114968) 17 Law Offices of James B. Chanin
3050 Shattuck Avenue 18 Berkeley, California 94705
(510) 848-4752; FAX: (510) 848-5819 19 jbcofc@aol.com
20 Of Counsel to Plaintiff 21
22
23
24
25
26
27
28

COMPLAINT FOR DAMAGES & DECLARATORY & INJUNCTIVE RELlliF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page3 of 18

1 Plaintiffs, for their Complaint in this action, allege and aver as follows:

2

INTRODUCTION

3 1. Plaintiffs have peacefully demonstrated during protests associated with the "Occupy

4

Oakland" movement and they hope to continue to exercise their First Amendment rights

5

by continuing to demonstrate in Oakland. But Plaintiffs are concerned for their safety at

6

future protests, because during two previous protests they have encountered, and some of

7

them have been victims of, excessive force by Oakland Police Department personnel and

8

other law-enforcement officers working in concert with the Oakland Police Department.

9

This force includes the indiscriminate use of explosive devices, lead-shot-filled projectiles

10 11 12 13 14 15 16 17 18 2. 19

fired from shotguns, nightsticks, and rubber-encased bullets. At least two demonstrators have suffered extremely serious injuries during these demonstrations: one a fractured skull, the other a ruptured spleen. These police actions were in direct violation of the crowd-control policy that Oakland adopted as part of the settlement in two previous consolidated cases before this Court, Local10, International Longshore and Warehouse Union v. City ofOakland, No.C03-2961 TEH (hereinafter Local10.) and Coles v. City of Oakland, No. C03-2961 (TEH) (hereinafter Coles). This policy remains in effect and the Local 10 settlement obliges Oakland to follow it. As a result of this violence, Plaintiffs fear that if they engage in peaceful expressive activity during future demonstrations they will be seriously injured, in violation of their First

20

Amendment rights to assemble and protest and their Fourth and Fourteenth Amendment

21

rights to be free from excessive force. They are therefore asking this Court for a

22

temporary restraining order and further injunctive relief to prohibit Defendants and all

23

persons acting under their direction or in concert with them, as specified in Federal Rule

24

of Civil Procedure 65(d)(2), from violating these constitutional rights during future

25

protests. Specifically, plaintiffs are requesting that the Oakland Police Department and its

26

agents be enjoined from violating the Crowd Control Policy ("the Policy") that it adopted

27

as part of the settlement in Local 10 and Coles.

28

Case No.

~2-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page4 of 18

1

2

JURISDICTION AND VENUE

3 3. This action arises under 42 U.S.C. § 1983 and the United States Constitution. This Court

4

has subject-matter jurisdiction over these claims under 28 U.S.C. §§ 1331 and 1343. It

5

has supplemental jurisdiction over state-law claims, including the claim that Oakland is

6

violating the Loca/10 settlement, under 28 U.S.C. § 1367.

7 4. The Defendants are all public officials or other employees or agents of the City of Oakland,

8

as well as the City itself. Each of the Defendants resides within this District and/or

9

performs official duties within the State of California. This Court, accordingly, has

1 0

personal jurisdiction over each of the Defendants.

11 5. Venue properly lies within this District under 28 U.S.C. § 1391(b). The named Defendants

12

perform their official duties in this District, and a substantial part of the events or

13

omissions giving rise to Plaintiffs' claims have occurred or will occur in this District.

14

INTRADISTRICT ASSIGNMENT

15 6. Pursuant to Local Rule 3-2, this action may properly be assigned to the San Francisco or

16

Oakland divisions of this Court.

17

THE PARTIES

18

Plaintiffs

19 7. Plaintiff Timothy Scott Campbell is a resident of Oakland and a strong supporter of the

20

Occupy movement. Mr. Campbell was filming police officers at the November 2, 2011

21

protest when he was shot in the leg by law enforcement with a lead-filled shot bag. Plaintiff

22

Marcus Kryshka is a National Lawyer's Guild Legal Observer who has participated as such

23

in repeated Occupy Oakland assemblies and demonstrations beginning on October 21, 2011

24

and continuing to the present day. Although he has years of experience as a legal observer,

25

he now worries about his personal safety and fears being physically harmed at a future

26

Occupy Oakland event because he has seen how the Oakland Police Department heads up

27

enforcement actions against Occupy Oakland and how protesters are treated by law

28

enforcement. His experiences with this cause him significant mental stress -including loss

-3-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page5 of 18

1

of sleep, digestive problems, and an overall sense ofanxiety --when thinking about

2

upcoming protests. It is only because of his strong commitment to legal observing that he

3

continues to observe at the Occupy demonstrations and will continue to do so.

4 8. PlaintiffMarc McKinnie is a resident of Oakland and a supporter of Occupy Oakland. He

5

has participated in repeated Occupy Oakland assemblies and demonstrations beginning on

6

October 15, 2011 through the present. He very much believes in the message expressed by

7

the Occupy movement and participates in Occupy Oakland activities in order to express this

8

message. On October 25, he was shot with some sort ofless-lethal munition by law

9

enforcement while he was alone, on his bicycle, when he stopped to pick up some debris

10

near a demonstration. The force of the shot knocked him to the ground.

11 9. Plaintiff Michael Siegel is a resident of Oakland and a supporter of Occupy Oakland. He

12

participated in demonstrations on October 25 and was injured when a projectile hit his

13

ankle; he also had a flash-bang grenade detonate so close to his head that it caused a ringing

14

in his ears and affected his hearing. He saw many instances of law-enforcement using

15

batons and projectile weapons in an arbitrary and unpredictable manner, and injuring

16

demonstrators. As a result, he is reluctant to participate in future Occupy events because of

17

fears for his personal safety.

18 10. PlaintiffKerie Campbell is a resident of Oakland and an active participant in Occupy

19

Oakland. She wants to continue participating in demonstrations and other activities and

20

would like to include her children but fears for their safety because of the past police

21

violence.

22 11. Plaintiff American Civil Liberties Union of Northern California ("ACLU-NC") is a

23

nonprofit public interest organization with a longstanding goal of advancing free-speech and

24

other constitutional rights. The ACLU-NC, which has approximately 50,000 members, has

25

local chapters based on geography, one of which is the Paul Robeson Chapter, which covers

26

Oakland and other areas of Alameda County, California. Numerous members of the

27

ACLU-NC are interested in the Occupy movement in Oakland and other cities in Northern

28

-4-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page6 of 18

1

California and are participating in demonstrations and other expressive activity relating to

2

the movement.

3 12. Plaintiffs, including members of the ACLU-NC, want to continue to exercise their rights to

4

assemble and speak along with persons associated with Occupy Oakland, but they fear that

5

if they do so they will be shot or otherwise injured by Defendants and their agents or will be

6

arrested without probable cause to believe that they have violated any law.

7

Defendants

8 13. Defendant City of Oakland ("the City") is a municipal corporation, duly organized and

9

existing under the laws of the State of California.

10 14. Defendant Howard A. Jordan is the Interim Chief of Police for the City of Oakland.

11 15. Defendants Does 1-100 are employees or agents of the City and the Oakland Police

12

Department.

13

THE MATTERS IN CONTROVERSY

14 16. The last two months have seen demonstrations throughout this nation, demonstrations that

15

began with "Occupy Wall Street" and have since grown to include Occupy protests in

16

many cities in the United States and in California. Although its members have a range of

1 7

political views and opinions, the movement as a whole advocates for broad political and

18

social change in this nation, and many within the movement seek specifically to bring

19

attention to this nation's economic inequities.

20 17. The Occupy Oakland movement began in early October; its activities have centered in the

21

plaza in front ofOakland City hall ("the plaza"). Persons associated with the movement

22

have engaged, and continue to engage, in a variety of expressive and associative activities

23

in and around the plaza, including demonstrations and marches, the exhibition of signs and

24

banners, and conducting meetings large and small about the movement and political and

25

social issues. Some supporters of the movement have erected tents in the plaza; many

26

others come to the plaza at various times to engage in meetings, demonstrations, and other

27

expressive activity.

28

-5-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page7 of 18

1 18. In the pre-dawn hours October 25, 2011, Oakland Police Department personnel and other

2

City workers, assisted by personnel from other law-enforcement agencies, forcibly

3

removed the demonstrators from the plaza, arresting a number of people and seizing signs

4

and other personal property. The officers used flash bang grenades and tear gas in this

5

operation. Many occupiers did not hear a dispersal order and thus did not have an

6

opportunity to gather their belonging and leave the camp without being arrested or harmed.

7

Many were beaten and shot with rubber bullets that morning even as some were trying to

8

leave the area with their belongings.

9 19. OPD also destroyed tents and other personal property in this raid; for example, it slashed

10

the sides of the large yellow tent that had served as the heart of the plaza's children's

11

village, a space that had been created so that parents have a safe place to be with their

12

children. Officers threw the toys, books, and art supplies that people had brought to the

13

children's village into a different part of the plaza as if they were garbage.

14 20. This raid sparked a number of protests throughout that same day by a much larger number

15

of people who were associated with Occupy Oakland or who wanted to show their support

16

for the movement.

17 21. During a large, peaceful march that afternoon, OPD and its agents used batons to beat one

18

protester who had fallen to the ground and against others who were trapped in a dense

19

crowd and unable to disperse or move because ofthe press of the crowd. Also during this

20

march, OPD fired so-called beanbags (which are actually bags filled with lead shot that are

21

fired from a shotgun) into a group of people that were doing nothing more than failing to

22

move as quickly as the rest of the crowd in response to a police order. Instead of throwing

23

flash-bang grenades and tear gas canisters at a safe distance away from the crowd, officers

24

instead threw them directly at the crowd, and without any audible warnings of imminent

25

use.

26 22. As the demonstrations continued into the evening, OPD and its agents repeatedly ordered

27

the assembled crowd to disperse, even though no illegal conduct had occurred and the

28

protesters had merely assembled in peaceful protest. In other instances, OPD and its agents

-6-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page8 of 18

1

deployed dispersal tactics before any audible dispersal announcement. After deciding to

2

disperse crowds, officers resorted immediately to tear gas, flash bang grenades, and

3

projectiles, rather than first attempting less-forceful crowd dispersal methods.

4 23. OPD and its agents fired projectiles indiscriminately at dense crowds of peaceful protesters

5

without warning. In one instance, the officers launched a barrage of projectiles that

6

blanketed the assembled group in teargas, and subjected the assembled group to flash-bang

7

grenades and other projectiles, simply because someone in the crowd had thrown a single

8

plastic water bottle. Worse, even people 100 feet away from the source of the bottle who

9

were chanting at others not to throw things at the police were barraged.

10 24. One such volley of projectiles fractured the skull of United States Marine Corps veteran

11

Scott 0 lsen, causing him to fall to the ground and putting him in the hospital for three

12

weeks. Making things worse, when protesters rushed to assist him, the police tossed gas

13

canisters and flash-bang grenades at this small group of Good Samaritans and towards a

14

wheelchair-bound person who was attempting to leave the area. Mr. Olsen was dripping

15

with blood from being struck by the projectile.

16 25. OPD and its agents also targeted projectiles such as pepperballs at specific individuals who

17

posed no risk to the officers or to anybody else. One protester, who was hit repeatedly in

18

the back by painful projectiles from the plastic-bottle-prompted assault, walked past the

19

police line to escape the shooting. When he asked the police why they were shooting at

20

him, he was shot again. He was hit at least 8 times with bean bags, rubber bullets, or

21

pepperballs, causing pain, swelling, bruising, and bleeding.

22 26. In response to these widely reported examples ofexcessive force, civil rights organizations

23

including the ACLU and the National Lawyers Guild (counsel for Plaintiffs in this suit)

24

criticized OPD's enforcement action, citing concerns about systematic and blatant

25

violations of OPD's Crowd Control Policy, which was adopted pursuant the court-

26

approved settlement in Local 10, on which counsel in this suit were also counsel. The

27

Department sent a letter in response indicating that it would treat the letter as a complaint.

28

-7-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page9 of 18

1 27. Outraged by OPD's conduct on October 25, Occupy Oakland called for a general strike on

2

November 2. The day was a peaceful mix of protest and festivities, with thousands of

3

people walking around, conversing, and marching to different destinations. Dancers

4

participated in a flash mob and thousands marched to shut down the Port of Oakland. All

5

these events were peaceful and involved no police confrontation. Indeed, there were few

6

police even visible.

7 28. Later that evening and the early hours of November 3, however, in downtown Oakland,

8

OPD again invited other law enforcement agencies to participate in its enforcement actions

9

and repeated the same, grave mistakes it made on October 25.

10 29. For example, although the Policy requires that dispersal orders be reasonably audible, on

11

November 2-3 those orders that were given were often unintelligible and failed to provide

12

protesters with directions as to how to comply. In other instances, OPD and its agents

13

trapped protesters, who went precisely where instructed, in an area with explosions and

14

tear gas canisters flying, only to then arrest them, even though the Policy requires that

15

dispersal orders must specify adequate egress or escape routes.

16 30. OPD and its agents again fired all manner of projectiles indiscriminately into crowds where

17

protesters were simply standing in the street, although the Policy flatly states that less-

18

lethal munitions "may never be used indiscriminately against a crowd or group of persons,

19

even if some members of the crowd or group are violent or disruptive."

20 31. Individuals were also targeted for shooting. For example, citizen journalist and

21

videographer Plaintiff Scott Campbell started filming a police line; when he was told to

22

step back he complied and stepped back 5 to 10 feet, asking "Is this Okay?" When he

23

received no response, he continued filming the police line while maintaining the same

24

distance and was moving further away when he was suddenly shot in his right leg with

25

what is euphemistically called a "bean bag," actually a lead-shot-filled projectile fired from

26

a shotgun. The video taken by Mr. Campbell and depicting this incident is at

27

http://www.ibabuzz.com/politics/2011/ll/07/video-police-fell-occupy-oakland-

28

videographer/.

-8-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page10 of 18

1 32. The incident was not isolated. Another man who was simply standing there, not posing

2

any apparent threat and not engaged in any violence, was shot three times with bean bags

3

or some other projectile. A few minutes later he was seen clutching an area on his shirt

4

where a large patch of blood had developed.

5 33. As they had done on October 25, OPD threw flash bang grenades directly at bystanders,

6

who were then showered with shrapnel, even though the Policy requires that such devices

7

be exploded at a safe distance from the crowd. Audible warnings were not given prior to

8

the use offlash bangs. Police fired tear gas canisters into the midst of the crowd, without

9

intelligible warnings, and without first attempting less forceful dispersal tactics. The

10

wanton use of these injury-inflicting weapons on peaceful protesters caused panic, chaos,

11

and fear.

12 34. Other incidents of police brutality included four large police officers knocking a young

13

woman slowly riding her bicycle to the ground. Several officers chased after a man

14

dressed as a comic-book hero and then, when they caught him, beat him with their batons.

15 35. Many of these actions that OPD and its agents took on October 25 and November 2-3

16

violate Oakland's crowd control policy, a policy that was drafted following another case

17

involving OPD's use of excessive force, including tear gas, grenades, and less-lethal

18

projectiles at the Port of Oakland in 2003. The policy was approved by then-OPD-Chief

19

Richard Word on November 9, 2004, and was created to comply with federal and state

20

laws. See Local]0, Stipulation and Order Approving Partial Settlement, at 4. This Court

21

retained jurisdiction to resolve any dispute between the parties concerning the settlement

22

for a period ofthree years. Although that jurisdiction grant has expired, the Crowd Control

23

Policy that was adopted as part of the policy remains in full force and effect.

24 36. For example, the actions described above violated the following provisions of the Policy:

25 37. The overarching principle ofthe Policy is "to use minimal reliance on the use of physical

26

force and authority needed to address a crowd management or crowd control issue."

27

Policy§ I. "Direct Fire SIM [Specialty Fire Less-Lethal Munitions] may never be used

28

indiscriminately against a crowd or group of persons, even if some members ofthe crowd

-9-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page11 of 18

1

or group are violent and disruptive." /d. § V-F-4. "When circumstances permit the

2

supervisor on the scene shall make an attempt to accomplish the policing goal without the

3

use of Specialty Impact Munitions as described above, and, if practical, an audible warning

4

shall be given to the subject before deployment of the weapon." /d. § V-F-10.

5 38. The Policy identifies a range of crowd control tactics that minimize the risk ofinjury (such

6

as display of police officers, encirclement and arrest). See /d. §VI-A through VI-N.

7

Because "chemical agents can produce fatalities, serious injuries or even death," they

8

cannot be used unless other less dangerous methods have first been exhausted. /d. §§VI-

9

M-5, V-G-6. This determination to escalate to chemical agents must be made by OPD's

10

Incident Commander. VI-M-2. Even then, tear gas may only be used (1) after an audible

11

warning, giving the crowd a reasonable time to disperse (id. §§ VI-M-5), (2) "in the form

12

of a delivery system, which emits the chemical agent diffusely without targeting a specific

13

individual or individuals." (id. §VI-M-1), (3) in ''the minimum amount" necessary (id.

14

§ VI-M-3), (4) under strict command supervision (id. §§ VI-m-2, VI-m-5) and (5) ifOPD

15

has previously arranged for sufficient medical personnel to treat to injuries (id. § VI-M-6).

16 39. The Policy also prohibits OPD from firing "sound and light diversionary/distraction

17

devices" directly into crowds; instead they must "be deployed to explode at a safe from the

18

crowd to minimize the risk of personal injury." /d. § VI-N-2. As with tear gas, OPD must

19

provide audible warnings and a reasonable opportunity to disperse before such weapons are

20

used (id. §VI-N-3) because they present a "risk of permanent loss of hearing or serious

21

bodily injury from shrapnel." (id.VI-N-2).

22 40. The Policy prohibits the use of Specialty Impact Less-Lethal Munitions, such as "bean

23

bags" and other projectiles, for crowd management, crowd control or crowd dispersal

24

during demonstrations or crowd events /d. §§ V-F-1-b, V-F-2. These munitions "may

25

never be used indiscriminately against a crowd or group ofpersons, even if some members

26

of the crowd or groups are violent or disruptive." V-F-4. Instead, they may only be used

27

against a specific individual who poses an immediate safety threat and "when the

28

-10-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

..

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page12 of 18

I

individual can be targeted without endangering other crowd members or bystanders." Id §

2

V-F-3.

3 41. Batons should not be used "for crowd control, crowd containment or crowd dispersal ....

4

When reasonably necessary for protection of the officers or to disperse individuals in the

5

crowd pursuant to the procedures ofthis policy, batons may be used in a pushing or

6

jabbing motion. Baton jabs should not be used indiscriminately against a crowd or group of

7

person, but only against individuals who are physically aggressive or actively resisting

8

arrest." Id § VI-L-2, VI-L-3.

9 42. The actions described above violated not only OPD's own Policy but also federal and state

10

constitutional prohibitions against unreasonable seizure and excessive force. These actions

11

also violated the free-speech rights of the protestors by interfering with their ability to

12

engage in expressive activity in and around the plaza.

13 43. On information and belief, many of these violations were caused by Oakland's failure to

14

adequately inform the 17 outside law-enforcement agencies that were assisting it of the

15

details of the Crowd Control Policy and Oakland's failure to supervise or control those

16

agencies to ensure that they complied with Oakland's Crowd Control Policy. Many of

17

these agencies did not comply with Oakland's policy.

18 44. These outside law-enforcement agencies were operating in Oakland pursuant to a mutual-

19

aid plan and the consent of the Oakland Police Department and Interim Chief Jordan,

20

which was necessary to confer full peace-officer authority upon law-enforcement personnel

21

from other jurisdictions. See Ca. Penal Code § 830.1 (a)(2). Such mutual aid arrangements

22

are governed by the provisions ofthe California Government Code,§§ 8550 et seq. These

23

statutes expressly state that ''the responsible local official in whose jurisdiction an incident

24

requiring mutual aid has occurred shall remain in charge at such incident, including the

25

direction of personnel and equipment provided him through mutual aid," unless the parties

26

agree otherwise. Ca. Gov't Code § 8618. On information and belief, Interim Chief Jordan

27

remained in charge of the operations on October 25 and November 2-3 pursuant to this

28

-11-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page13 of 18

1

statute, and he allowed these outside agencies to violate OPD's Crowd Control Policy and

2

the constitutional rights of protestors, as described above.

3 45. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein as

4

Does 1 through 100, inclusive, and therefore sues said defendants by such fictitious names.

5

Plaintiffs will amend this complaint to allege their true names and capacities when

6

ascertained. Plaintiffs are informed and believe, and upon such information and belief

7

allege that each of the Doe defendants is legally responsible and liable for the incident,

8

injuries and damages hereinafter set forth, and that each of said defendants proximately

9

caused said incidents, injuries and damages by reason of their negligence, breach ofduty,

10

negligent supervision, management or control, battery, violation of constitutional rights,

11

violation of public policy, false arrests, or by reason ofother personal, vicarious or imputed

12

negligence, fault, or breach of duty, whether severally or jointly, or whether based upon

13

agency, employment, ownership, entrustment, custody, care or control or upon any other

14

act or omission. Plaintiffs will ask leave to amend this complaint to insert further charging

15

allegations when such facts are ascertained.

16 46. Each ofthe defendants caused, and is responsible for the above-described unlawful

17

conduct and resulting injuries by, among other things, personally participating in the

18

unlawful conduct or acting jointly or conspiring with others who did so; by authorizing,

19

acquiescing in or setting in motion policies, plans or actions that led to the unlawful

20

conduct; by failing to take action to prevent the unlawful conduct; by failing and refusing

21

with deliberate indifference to plaintiffs' rights to initiate and maintain adequate training

22

and supervision; and by ratifying the unlawful conduct that occurred by agents and officers

23

under their direction and control, including failing to take remedial or disciplinary action.

24 47. In doing the acts alleged herein, defendants, and each ofthem, acted within the course and

25

scope oftheir employment for the City of Oakland and/or Does 1-100 and/or each of them.

26 48. In doing the acts and/or omissions alleged herein, defendants, and each of them, acted

27

under color of authority and/or under color of law. In doing the acts and/or omissions

28

-12-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page14 of 18

1

alleged herein, defendants, and each of them, acted as the agent, servant, employee and/or

2

in concert with each of said other defendants herein.

3

NEED FOR INJUNCTIVE AND DECLARATORY RELIEF

4 49. Plaintiffs reallege and incorporate here the allegations in Paragraphs 1-48, above, as though

5

fully set forth.

6 50. Plaintiffs and other persons associated with Occupy Oakland fully intend to continue to

7

assemble and exercise their free-speech rights in downtown Oakland. They expect, and it

8

is likely, that the police will again take action against Occupy Oakland in the immediate

9

future; such operations have in fact occurred this morning. Plaintiffs will want to engage

10

in speech in response to these actions. Plaintiffs also reasonably expect that, in the.

11

absence of an order from this Court, when they participate in demonstrations of any type

12

associated with Occupy they will face the same sort of police violence that occurred on

13

October 25 and November 2-3. This will result in irreparable harm to them, because a

14

future award of damages cannot remedy the loss of constitutional rights or the physical

15

and emotional harm they will suffer in the absence ofan injunction. Both the public

16

interest and equity favor granting an injunction to allow plaintiffs to exercise their

17

constitutional rights without suffering excessive force at the hands of the police.

18 51. There exists an actual, present and justiciable controversy between Plaintiffs and

19

Defendants concerning their rights and duties with respect to Defendants' conduct

20

described herein. Plaintiffs contend that Defendants violated, and will violate, Plaintiffs'

21

rights under the constitutions and laws of the United States and California, specifically,

22

Plaintiffs' rights to freedom of speech and assembly and to be free from the use of

23

excessive force by the police. On information and belief, Defendants deny that their

24

conduct violated, or continues to violate, Plaintiffs' rights under the constitutions and laws

25

of the United States and California. Plaintiffs fear that they will again be subjected to

26

such unlawful and unconstitutional actions, and seek a judicial declaration that

27

Defendants' conduct deprived, and continues to deprive, Plaintiffs of their rights under the

28

constitution and laws ofthe United States and California.

-13-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page15 of 18

1 52. This controversy is ripe for judicial decision, and declaratory relief is necessary and

2

appropriate so that the parties may know the legal obligations that govern their present

3

and future conduct.

4

COUNT I: VIOLATION OF THE FOURTH AMENDMENT TO

5

THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)

6 53. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

7

Paragraphs 1-52 as though fully set forth herein.

8 54. The Fourth Amendment to the United States Constitution protects the right of people to be

9

free from unreasonable searches and seizures.

10 55. Defendants actions, and the actions of their agents and those acting in concert with them

11

violate these rights by inflicting grossly excessive force on Plaintiffs and putting them in

12

fear of being arrested without probable cause.

13

14

COUNT ll: VIOLATION OF THE FIRST AMENDMENT TO THE

15

UNITED STATESCONSTITUTION (42 U.S.C. § 1983)

16 56. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

17

Paragraphs 1-55 as though fully set forth herein.

18 57. The First Amendment protects the freedom of speech and also the right of the people

19

peaceably to assemble, and to petition the Government for a redress of grievances.

20 58. Defendants' actions, and the actions of their agents, violate these rights, because Plaintiffs

21

face an unreasonable risk of physical harm if they again try to exercise these rights in

22

conjunction with Occupy-related demonstrations.

23

24

COUNT III: VIOLATION OF THE FOURTEENTH AMENDMENT TO THE

25

UNITED STATES CONSTITUTION {42 U.S.C. § 1983)

26 59. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

27

Paragraphs 1-58 as though fully set forth herein.

28

-14-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page16 of 18

60. The Fourteenth Amendment prohibits the government from depriving any person of his or

2

her rights without due process oflaw. Defendants' actions, and the actions of their agents,

3

violate these rights, because they employed a level of force and violence that shocks the

4

conscience.

5

COUNT III: VIOLATION OF ARTICLE I§§ 2, 3 OF THE

6

CALIFORNIA CONSTITUTION £CAL. CODE CIV. PRO.§ 527)

7 61. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

8

Paragraphs 1-60 as though fully set forth herein.

9 62. Article I§ 2(a) of the California Constitution guarantees that "Every person may freely

10

speak, write and publish his or her sentiments on all subjects, being responsible for the

11

abuse of this right. A law may not restrain or abridge liberty of speech or press."

12 63. Article I§ 2(a) ofthe California Constitution guarantees that "The people have the right to

13

instruct their representatives, petition government for redress of grievances, and assemble

14

freely to consult for the common good."

15 64. Defendants' actions, and the actions of their agents and co-conspirators, violate these rights,

16

because Plaintiffs face an unreasonable risk of physical harm if they again try to exercise

17

these rights in conjunction with Occupy-related demonstrations.

18

COUNT IV: VIOLATION OF ARTICLE I§ 13 OF THE

19

CALIFORNIA CONSTITUTION {CAL. CODE CIV. PRO. § 527)

20 65. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

21

Paragraphs 1-64 as though fully set forth herein.

22 66. Article I§ 13 of the California Constitution prohibits unreasonable searches and seizures.

23 67. Defendants actions, and the actions of their agents and co-conspirators, violate these rights

24

by inflicting grossly excessive force on Plaintiffs.

25

COUNTV: VIOLATIONOFTHEBANEACT

26

(CAL. CIV. CODE. § 52.1)

27 68. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

28

Paragraphs 1-67 as though fully set forth herein.

-15-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page17 of 18

69. The Bane Act states that "Any individual whose exercise or enjoyment of rights secured by

2

the Constitution or laws of the United States, or of rights secured by the Constitution or

3

laws of this state, has been interfered with, or attempted to be interfered with by [threats,

4

intimidation, or coercion], may institute and prosecute in his or her own name and on his or

5

her own behalf a civil action for damages, including, but not limited to, damages under

6

Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable

7

exercise or enjoyment of the right or rights secured." Ca. Civ. Code§ 52.1(b),

8

incorporating Ca. Civ. Code § 52(a).

9 70. Defendants have violated, and will continue to violate, Plaintiffs rights under the First

10

Fourth, and Fourteenth Amendments and under Article I§§ 2, 3, and 13 of the California

11

Constitution, through threats, intimidation, and coercion.

12

COUNT V: VIOLATION OF SETTLEMENT AGREEMENT/

13

BREACH OF CONTRACT

14 71. Plaintiffs hereby reallege and incorporate by reference the allegations contained in

15

Paragraphs 1-70 as though fully set forth herein.

16 72. In settlement agreement resolving the Local 10 and Coles cases, Defendant City of Oakland

17

agreed to adopt its current Crowd Control Policy and to follow that Policy.

18 73. By their actions described herein, Defendants have violated that Policy and thus breached

19

the settlement agreement, to which Plaintiffs are third-party beneficiaries.

20

RELIEF SOUGHT

21 WHEREFORE, Plaintiffs seek the following relief:

22

A.

A temporary restraining order, preliminary and permanent injunction under

23

Federal Rule of Civil Procedure 65:

24

1.

prohibiti1;1g Defendants, including all of their officers, agents, servants,

25

employees, attorneys, and other persons in active concert or participation with them,

26

from violating Oakland's Crowd Control Policy;

27

2.

prohibiting Defendants from requesting or authorizing assistance from outside

28

law-enforcement agencies without ensuring that those agencies, and their personnel,

-16-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

Case3:11-cv-05498-RS Document1 Filed11/14/11 Page18 of 18

will abide by Oakland's Crowd Control Policy.

2

3.

prohibiting other actions that violate the constitutional rights of plaintiffs, as this

3

Court deems necessary to preserve Plaintiffs' constitutional rights under the First and

4

Fourth Amendments

5

B. Declaratory Relief.

6

c.

Compensatory, statutory, and punitive Damages according to state and federal

7

law.

8

D.

Costs and attorneys fees incurred in this action pursuant to 42 U.S.C. §1988, Cal.

9

Civil Code 52.1, Cal. Code of Civil Procedure 1021.5, and other applicable authority.

10

E.

Such other and further relief as this Court deems just and proper.

11
12 DATED: November I'I , 2011
13
14

a,_ 2~
Attorney for plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-17-

COMPLAINT FOR DAMAGES &

DECLARATORY & INJUNCTIVE RELIEF

 
 1

*E-Filed 11/16/11*

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9

United States District Court For the Northern District of California

10 TIMOTHY SCOTT CAMPBELL, KERIE CAMPBELL, MARCUS KRYSHKA,
11 MARC MCKINNIE, MICHAEL SIEGEL, and AMERICAN CIVIL LIBERTIES
12 UNION OF NORTHERN CALIFORNIA,

No. C 11-5498 RS
ORDER DENYING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER

13

Plaintiffs,

14

v.

15 CITY OF OAKLAND, INTERIM CHIEF

16

OF POLICE HOWARD JORDAN, and DEFENDANT DOES 1-100,

17

Defendants.

18 ____________________________________/

19

I. INTRODUCTION

20

On November 14, 2011, plaintiffs filed this civil rights action against the City of Oakland

21 and Interim Chief of Police Howard Jordan (collectively “Oakland”) based on confrontations

22 between local law enforcement officers and individuals observing and taking part in the “Occupy

23 Oakland” protests. Plaintiffs simultaneously filed an ex parte request for a temporary restraining

24 order (TRO) enjoining defendants’ alleged indiscriminate and excessive use of force, which

25 plaintiffs contend violates the Oakland Police Department’s own Crowd Control and Crowd

26 Management Policy. In response, on the same day, the court issued an order requiring plaintiffs to

27 serve their request, the supporting papers, and the order itself, on the defendants by the close of

28

1

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 business. Per the order’s further instruction, defendants filed a written response to plaintiffs’

2 request by the close of business the next day. Upon consideration of the briefs, and for the reasons

3 stated below, plaintiffs’ application for a TRO is denied.

4

II. FACTS

5

This case arises out of the Occupy Oakland protest. The protest began in early October

6 2011, one of many nationwide demonstrations inspired by New York’s “Occupy Wall Street”

7 movement. The protesters seek to raise awareness about economic inequality, and advocate

8 political and social change. They have repeatedly convened on Frank Ogawa Plaza, in front of

9 Oakland City Hall, with some erecting tents and others periodically gathering there for meetings and

10 rallies. Most of these events, all acknowledge, have transpired without incident. Oakland

United States District Court For the Northern District of California

11 emphasizes, further, that it has made efforts to accommodate the protests by diverting traffic during

12 marches, and like events.

13

On October 20, 2011, however, Oakland presented protestors at the plaza with an eviction

14 notice, and in the early morning hours of October 25, Oakland police and municipal employees,

15 assisted by law enforcement officers from other local agencies, forcibly removed demonstrators

16 from the plaza. Here, the parties’ accounts of the facts diverge. By plaintiffs’ account, the police

17 action was not adequately announced to protesters, and officers endangered the crowds by

18 indiscriminately and prematurely deploying aggressive dispersal techniques. According to Oakland,

19 the operation was conducted in “strict accordance” with the Crowd Control Policy: announcements

20 were made, and protestors had an opportunity to leave before approximately 70 people were

21 arrested.

22

Oakland’s Crowd Control and Crowd Management Policy is generally designed to “uphold

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

24 authority needed to address a crowd management or crowd control issue.” Ex. 1 (Crowd Control

25 Policy) to Jordan Decl. in Supp. of Defs.’ Opp. Br., at 1. It specifies crowd control techniques and

26 dispersal tactics that may be appropriately used in certain circumstances. For instance, when an

27 assembly is declared unlawful, “[t]he police may not disperse a demonstration or crowd event

28

2

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 before demonstrators have acted illegally or before the demonstrators pose a clear and present

2 danger of imminent violence.” Id. at 11. The policy also places limits on the use of chemical

3 agents, “flash bang” grenades, and “less lethal” munitions, for example, by requiring that

4 demonstrators receive warnings, and an opportunity to disperse, prior to the deployment of such

5 devices.

6

Oakland claims it continued to facilitate the protests throughout the day by diverting traffic

7 and allowing protestors to occupy downtown areas until the afternoon, when some portion of the

8 crowd began to threaten and assault police officers. According to plaintiffs, the police fired flash

9 bang grenades and tear gas into crowds on several occasions. In the evening, the protests once again

10 convened at Frank Ogawa Plaza and another confrontation ensued. Plaintiffs state that the police

United States District Court For the Northern District of California

11 ordered dispersal before any illegal conduct had occurred, or proceeded to disperse the crowd

12 without making the requisite announcements, in violation of the Crowd Control Policy. Plaintiffs

13 have also filed numerous declarations describing police officers’ use of projectiles, including flash

14 bang grenades, tear gas, rubber bullets, and pepperballs, on crowds or non-threatening individuals,

15 including the named plaintiffs. According to plaintiffs, protestors sustained serious injuries as a

16 result. Oakland, by contrast, denies knowledge of injuries and insists that it deployed force to

17 protect police and city sanitation crews in the plaza from hostile protestors. According to the

18 Interim Chief of Police, Oakland police declared an unlawful assembly around the plaza, and made

19 the appropriate announcements, thereby permitting protestors to leave voluntarily, before

20 responding to individuals throwing glass bottles, rocks, and other objects at officers. Again,

21 Oakland avers that its officers’ actions strictly complied with the Crowd Control Policy.

22

Although the protests continued after these events, it appears there were no further incidents

23 until November 2, 2011. On that day, demonstrators called for a general strike and disrupted the

24 Port of Oakland’s operations. The parties agree that the majority of the events that occurred

25 throughout the day “were peaceful and involved no police confrontation.” Pls.’ Mem. in Supp. of

26 TRO and Prelim. Inj., at 10:19. Late in the evening, however, another confrontation ensued in the

27 area around the plaza. According to plaintiffs, police again failed to give intelligible dispersal

28

3

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 orders, used excessive force, and fired projectiles, flash bang grenades, and tear gas indiscriminately

2 into crowds and toward non-threatening individuals, including the named plaintiffs. Approximately

3 eighty demonstrators were arrested. The Interim Chief of Police states that police acted

4 “surgically,” with tear gas and less lethal munitions, in response to violent protesters who were

5 assaulting police with bottles and concrete blocks. The response, he further emphasizes, avoided

6 disrupting peaceful demonstrators who had by then returned to Frank Ogawa Plaza. Again, Oakland

7 insists that its officers acted in compliance with the Crowd Control Policy, although it acknowledges

8 that the confrontations on both October 25 and November 2 were “tense, violent, and chaotic.”

9 Defs.’ Opp. Br., at 4:22.

10

Plaintiffs aver that the en masse protests continue, and that further violent confrontations

United States District Court For the Northern District of California

11 between demonstrators and police are imminent. The named plaintiffs state in their declarations that

12 they wish to continue to participate in the Occupy Oakland protests, but hesitate to do so out of fear

13 for their safety. The Interim Chief of Police indicates that he intends to investigate allegations of

14 injuries or police misconduct, but states that in recent days there have not been any violent

15 confrontations, despite nearly daily interactions between the Occupy protesters and police. The

16 defendants also emphasize that they intend to continue complying with the Crowd Control Policy

17 and the law.

18

III. LEGAL STANDARD

19

A TRO may be granted upon a showing “that immediate and irreparable injury, loss, or

20 damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ.

21 P. 65(b)(1)(A). The purpose of such an order, as a form of preliminary injunctive relief, is to

22 preserve the status quo and prevent irreparable harm “just so long as is necessary to hold a hearing,

23 and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974).

24 A request for a TRO is evaluated by the same factors that generally apply to a preliminary

25 injunction, see Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir.

26 2001), and as a form of preliminary injunctive relief, a TRO is an “extraordinary remedy” that is

27 “never granted as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

28

4

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 Rather, the moving party bears the burden of demonstrating that “he is likely to succeed on the

2 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

3 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555

4 U.S. at 20. Alternatively, if the moving party can demonstrate the requisite likelihood of irreparable

5 harm, and show that an injunction is in the public interest, a preliminary injunction may issue so

6 long as there are serious questions going to the merits and the balance of hardships tips sharply in

7 the moving party’s favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

8 2011).

9

IV. DISCUSSION

10

A TRO is an “extraordinary remedy,” and plaintiffs’ proposed order is indeed exceptional.

United States District Court For the Northern District of California

11 Specifically, they ask that the court order Oakland to stop violating its own Crowd Control Policy.

12 Such an order would effectively require the court to supervise and oversee defendants’ compliance

13 with that policy pending a further hearing on a preliminary injunction. Even accepting everything

14 plaintiffs allege as true, for the reasons explained below, plaintiffs cannot, on the current record,

15 carry their burden to satisfy each of the four factors required for such an expansive and unfettered

16 order.

17

A. Likelihood of success

18

To prevail, plaintiffs must first show that they likely will succeed on the merits of their

19 constitutional claims.1 Winter, 555 U.S. at 20. It is not enough to show that there is a “possibility”

20 of success. Id. at 22 (reversing Ninth Circuit’s “possibility” standard). Rather, there must be a

21 “clear showing” that the plaintiffs are entitled to preliminary relief. Id. Without fully adjudicating

22 plaintiffs’ claims on the merits, it is apparent that they cannot satisfy this requirement on the

23 existing record. Although plaintiffs have produced a significant body of evidence that establishes

24

25 1 Plaintiffs also predicate their request for a TRO on the theory that they are third-party beneficiaries

26

of a settlement agreement that resolved two prior consolidated cases, and compelled Oakland to adopt its current Crowd Control Policy. See Local 10, Int’l Longshore and Warehouse Union v.

27

City, No. C 03-2961 TEH, and Coles v. City of Oakland, No. C 03-2961 TEH. Plaintiffs have not met their burden to show a likelihood of success, or even a serious question, as to the viability of

28 that claim.

5

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 some probability of success on their individual claims for relief for past violations of 42 U.S.C. §

2 1983, and their allegations that defendants violated the Crowd Control Policy on sporadic occasions,

3 ultimate success on these claims would entitle plaintiffs to money damages only, not injunctive

4 relief.

5

To justify an order generally requiring Oakland to comply with its Crowd Control Policy,

6 plaintiffs must show that such “systemwide relief” is necessary to prevent defendants from

7 concertedly violating the protesters’ constitutional rights. Lewis v. Casey, 518 U.S. 343, 360 (1996).

8 Sporadic or isolated violations of individual protesters’ rights are insufficient to support broad

9 injunctive relief against an entire agency. Id. Although plaintiffs have attempted to couch their

10 allegations in systemic terms, in doing so they ignore the undisputed fact that the Occupy Oakland

United States District Court For the Northern District of California

11 protests have continued, at times, for days on end without any alleged unconstitutional interference

12 from local authorities. By plaintiffs’ account, actionable conduct has occurred on no more than two

13 to three occasions, spanning a number of hours, in over a month of almost continual demonstrations

14 taking place across Oakland. Thus, plaintiffs’ request must fail on its own terms.

15

Of course, the facts of these incidents are highly disputed and, as discussed in greater detail

16 below, the court cannot simply ignore defendants’ version of events. City of Los Angeles v. Lyons,

17 461 U.S. 95, 112-13 (1982). Rather, the law obligates consideration of “the interests of state and

18 local authorities in managing their own affairs, consistent with the Constitution.” Milliken v.

19 Bradley, 433 U.S. 267, 280 (1977). Defendants insist that the police acted in accordance with the

20 Crowd Control Policy and their constitutional duties, and that any departures will be subject to

21 internal investigations as well as potential civil liability. They also characterize any alleged

22 deviations as the exception, rather than the rule. As a result, at this very early stage, plaintiffs have

23 not carried their heavy burden by clearly showing likely success on their claims that defendants’

24 alleged ongoing constitutional violations are so widespread, and systematic in nature, as to warrant

25 the extraordinarily broad relief requested.

26

B. Immediate, irreparable harm

27

28

6

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1

Plaintiffs’ request also fails because they have not sufficiently shown a likelihood of

2 immediate, irreparable harm. Plaintiffs aver that the First and Fourth Amendment injuries allegedly

3 suffered by protesters at the hands of defendants are irreparable as a matter of law. See Elrod v.

4 Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal

5 periods of time, unquestionably constitutes irreparable injury”), and Mills v. District of Columbia,

6 571 F.3d 1304, 1312 (D.C. Cir. 2009) (same as to Fourth Amendment freedoms). There can be no

7 question that the injuries, as alleged, are serious. However, in cases such as this one, the Supreme

8 Court has recognized that “the need for a proper balance between state and federal authority

9 counsels restraint in the issuance of injunctions against state officers engaged in the administration

10 of the States’ criminal laws in the absence of irreparable injury which is both great and immediate.”

United States District Court For the Northern District of California

11 Lyons, 461 U.S. at 112 (emphasis added). More generally, whenever a court is asked to exercise its

12 equitable powers to oversee state law enforcement authorities, it must be especially mindful of

13 “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State

14 administration of its own law.” Id., citing Stefanelli v. Minard, 342 U.S. 117, 120 (1951).

15

Here, plaintiffs argue that the Occupy Oakland protests are ongoing, and that “Court relief is

16 necessary to prevent irreparable harm to constitutional rights to be free from excessive force and to

17 protest without fear of excessive force.” Pls.’ Ex Parte Appl. for TRO, at 1:11-13. However, as

18 noted above, plaintiffs’ own evidence demonstrates that the great majority of the interactions

19 between police and Occupy Oakland protestors have been peaceful. Thus, to arrive at the

20 conclusion that irreparable injury is imminent, plaintiffs must assume that confrontations between

21 police and protestors will escalate in the future, and that Oakland will persist in allegedly violating

22 its own policies and the law. Because the Occupy Oakland protests have continued for over a

23 month with relatively limited confrontations, plaintiffs’ own averments fall short of establishing a

24 likelihood of immediate, irreparable harm.

25

This conclusion finds further support in the special prudential considerations identified by

26 the Supreme Court in Lyons and its progeny. The defendants aver that they intend to comply with

27 the Crowd Control Policy and the Constitution in the future. To issue an order requiring them to do

28

7

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

1 so would potentially run afoul of the Court’s cautionary instructions not to upset the delicate

2 structure of our federalist system without adequate justification. As the defendants point out:

3 “Crowd control and dispersal actions following the declaration of an unlawful assembly is

4 dangerous and difficult work.” Defs.’ Opp. Br., at 4:26-27. The facts in this case, even as alleged

5 by plaintiffs, simply do not resemble the circumstances in the civil rights-era protest cases that

6 plaintiffs invoke to justify the issuance of injunctive relief against local authorities. See Houser v.

7 Hill, 278 F.Supp. 920, 926 (D. Ala. 1968), Cottonreader v. Johnson, 252 F.Supp. 492, 496-97 (D.

8 Ala. 1966), and Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969) (overruled on other

9 grounds). Where, as here, the factual record is incomplete and defendants have not yet had an

10 adequate opportunity to respond, caution favors holding a hearing before intruding into local law

United States District Court For the Northern District of California

11 enforcement operations.

12

C. Balance of the equities & public interest

13

Finally, it remains unclear whether the balance of the equities, and the public interest, favor

14 plaintiffs or defendants. Both parties maintain compelling interests. Plaintiffs, of course, seek to

15 protect and exercise their First and Fourth Amendment rights in ways that implicate the public

16 interest. The defendants, on the other hand, have indisputably accommodated the majority of the

17 demonstrations, and seek to protect the safety and property of other Oakland residents.

18 Accordingly, the final two factors do not weigh in favor of issuing a TRO.

19

V. CONCLUSION

20

For the reasons stated, plaintiffs’ motion for a temporary restraining order is denied. The

21 parties are directed to appear at a preliminary injunction hearing at 1:30 p.m. on November 30,

22 2011 in Courtroom 3, 17th Floor, 450 Golden Gate Avenue, San Francisco. Plaintiffs may file a

23 supplemental motion for a preliminary injunction by 5 p.m. on Friday, November 18, 2011.

24 Defendants may file a response by 5 p.m. on Wednesday, November 23, 2011. Plaintiffs may, if

25 they elect to do so, file a reply brief by 12 p.m. on Tuesday, November 29, 2011.

26

IT IS SO ORDERED.

27

28

8

No. C 11-5498 RS

ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING

ORDER

United States District Court For the Northern District of California

1 Dated: 11/16/2011 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
9 No. C 11-5498 RS
ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER

 
 Case3:11-cv-05498-JST Document48 Filed12/12/11 Page1 of 13

United States District Court For the Northern District of California

1

*E-Filed 12/12/11*

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9

10 TIMOTHY SCOTT CAMPBELL, KERIE CAMPBELL, MARCUS KRYSHKA,
11 MARC MCKINNIE, MICHAEL SIEGEL, and AMERICAN CIVIL LIBERTIES
12 UNION OF NORTHERN CALIFORNIA,

No. C 11-05498 RS
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

13

Plaintiffs,

14

v.

15 CITY OF OAKLAND, INTERIM CHIEF

16

OF POLICE HOWARD JORDAN, and DEFENDANT DOES 1-100,

17

Defendants.

18 ____________________________________/

19

I. INTRODUCTION

20

On November 14, 2011, plaintiffs filed this civil rights action against the City of Oakland

21 and Interim Chief of Police Howard Jordan (collectively “Oakland”) based on confrontations

22 between local law enforcement officers and individuals observing and taking part in the “Occupy

23 Oakland” protests. On November 17, the Court denied plaintiffs’ ex parte request for a temporary

24 restraining order, scheduled a hearing on plaintiffs’ motion for a preliminary injunction, and

25 solicited supplemental briefs. Plaintiffs’ proposed preliminary injunction would enjoin Oakland

26 from violating certain provisions of the Oakland Police Department’s Crowd Control and Crowd

27 Management Policy (the “Crowd Policy”). Upon consideration of the briefs and the arguments

28 presented at the hearing, and for the reasons explained below, plaintiffs’ motion must be denied.
1
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page2 of 13

United States District Court For the Northern District of California

1

II. FACTS

2

This case arises out of the Occupy Oakland protests. Those protests began in early October

3 2011, one of many nationwide demonstrations inspired by New York’s “Occupy Wall Street”

4 movement. The protesters seek to raise awareness about economic inequality, and advocate

5 political and social change. They have repeatedly convened, among other locations, on Frank

6 Ogawa Plaza, in front of Oakland City Hall, with some participants erecting tents and others

7 periodically gathering for meetings and rallies. Most of these events proceeded peacefully with 200

8 to 400 protesters in attendance. Plaintiffs’ request for a preliminary injunction, however, focuses on

9 confrontations between Oakland police and protesters at larger rallies, where crowds of 1000 or

10 more people gathered. Accordingly, just two incidents are at issue for present purposes.

11

The first occurred in the afternoon and evening of October 25, 2011. A few days earlier, on

12 October 20, Oakland had presented protesters at the Plaza with an eviction notice, and in the early

13 morning hours of October 25, Oakland police and municipal employees, assisted by law

14 enforcement officers from other local agencies, forcibly removed a smaller group of demonstrators

15 from the Plaza. In their previous motion for a restraining order, plaintiffs alleged that the eviction

16 operation was marred by the use of excessive force against protesters, and other offenses. Plaintiffs

17 predicate their motion for a preliminary injunction, however, on confrontations that occurred during

18 demonstrations later in that same day, when approximately 1500 to 2000 people were present.

19

Oakland claims, and plaintiffs do not appear to disagree, that it facilitated the rallies

20 throughout the day by diverting traffic and allowing protesters to occupy downtown areas. The

21 afternoon, unfortunately, was punctuated by violence. According to Oakland, some protesters began

22 to assault police officers by “kicking them in the legs, spitting at their faces, and throwing rocks,

23 bottles with bleach and urine, and paint balls.” Jordan Decl. in Supp. of Defs.’ Opp’n Br. to T.R.O.,

24 4:5-6. On at least one occasion, according to Jordan, tear gas was necessary to disperse a crowd of

25 approximately 500 protesters that surrounded and was threatening a small group of officers

26 conducting arrests. Plaintiffs, by contrast, allege that in the afternoon, police beat a protester who

27 was trapped by the crowd, and fired bean bags, “flash-bang” grenades, and tear gas into the midst of

28 assembled crowds without warning, in violation of Oakland’s own policies.
2
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page3 of 13

United States District Court For the Northern District of California

1

By way of background: Oakland’s Crowd Policy is the result of a settlement in a prior case

2 against the City.1 Under its express language, the Crowd Policy is intended to “uphold

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

4 authority needed to address a crowd management or crowd control issue.” Ex. 1 (Crowd Policy) to

5 Jordan Decl., 1. It specifies crowd control techniques and dispersal tactics that may be appropriately

6 used in certain circumstances. For instance, when an assembly is declared unlawful, “[t]he police

7 may not disperse a demonstration or crowd event before demonstrators have acted illegally or before

8 the demonstrators pose a clear and present danger of imminent violence.” Id. at 11. It also places

9 limits on the use of chemical agents, flash-bang grenades, and “less lethal” munitions, for example,

10 by requiring that demonstrators receive warnings, and an opportunity to disperse, prior to the

11 deployment of such devices. Plaintiffs have specifically documented what they allege to be

12 violations of particular provisions of the Crowd Policy that concern dispersal orders, as well as the

13 use of less lethal munitions, flash bang grenades, and tear gas.

14

By the evening of October 25, the protesters had once again convened at Frank Ogawa

15 Plaza, and a more intense confrontation ensued. Plaintiffs state that the police ordered dispersal

16 before any illegal conduct had occurred, failed to issue audible dispersal orders, and immediately

17 resorted to forcible tactics, all in violation of various provisions of the Crowd Policy. As numerous

18 declarations filed by plaintiffs attest, police officers used projectiles, including flash bang grenades,

19 tear gas, rubber bullets, and pepper balls, on crowds and non-threatening individuals, including the

20 named plaintiffs. For example, in one specific instance, plaintiffs contend that police “blanketed the

21 crowd indiscriminately” with tear gas and other projectiles after a single bottle was thrown at

22 officers. Pls.’ Suppl. Mot. for P.I., 5:7. Plaintiffs maintain that Oakland generally failed to provide

23 medical assistance to protesters, and, in at least one instance, police allegedly targeted individuals

24 who attempted to assist an injured protester with tear gas and flash-bang grenades. Id. at 5:12-21.

25 According to plaintiffs, a number of protesters sustained serious injuries in the melee.

26

27

28

1 Local 10, Int’l Longshore and Warehouse Union, et al. v. City of Oakland (Local 10), Nos. 0302961 TEH, 03-02962 TEH.

3

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page4 of 13

United States District Court For the Northern District of California

1

Oakland, by contrast, insists that it deployed force to protect police and City sanitation crews

2 in the Plaza that evening from increasingly hostile groups of protesters. For example, Oakland

3 claims that “certain groups and their sympathizers” dismantled metal barricades and “used them in a

4 threatening manner” against officers. Jordan Decl., 4:20-23. Allegedly, police declared an unlawful

5 assembly around the Plaza after masked protesters began throwing objects. According to Oakland,

6 police then announced, audibly and approximately thirty times, that the assembly was unlawful and

7 that chemical agents would be used. The City claims that protesters were afforded “[s]ignificant

8 time” to leave via “plenty of clear escape routes.” Id. at 5:1-8. Even after the announcements,

9 however, Oakland alleges that some protesters refused to leave and others vandalized property and

10 assaulted officers by throwing bottles, rocks, and other objects. At that point, officials authorized

11 police to use tear gas, and other less lethal munitions to stem the violence and disperse the crowd.

12 Oakland maintains that its officers’ actions throughout the events of the afternoon and evening

13 strictly complied with its Crowd Policy and the law.

14

Although the protests continued in the days immediately following October 25, the next

15 large-scale demonstrations did not take place until November 2. On that day, Occupy demonstrators

16 called for a general strike and disrupted the Port of Oakland’s operations. The parties agree that the

17 majority of the events that occurred throughout the day “were peaceful and involved no police

18 confrontation.” Pls.’ Mot. for T.R.O., 10:19. Again, plaintiffs’ present motion focuses not on these

19 events, but on police conduct during a late-night confrontation in the area around the Plaza. This

20 time, approximately 1000 to 1500 protesters were in attendance. According to plaintiffs, Oakland

21 again responded to unlawful activity by a few individuals with indiscriminate force. Specifically,

22 plaintiffs claim that peaceful protesters, as well as journalists and legal observers, were directed to

23 the Plaza by police, only to be “caught in a volley of projectiles, exploding flash bang grenades, and

24 tear gas.” Pls.’ Suppl. Mot. for P.I., 8:16-27. According to declarations filed by plaintiffs and other

25 eye witnesses, Oakland police again failed to give intelligible dispersal orders, used excessive

26 physical force against some individual protesters, and fired projectiles, flash bang grenades, and tear

27 gas indiscriminately into crowds and toward non-threatening individuals, including the named

28 plaintiffs.

4
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page5 of 13

United States District Court For the Northern District of California

1

Under Oakland’s version of events, around midnight, masked protesters “went on a rampage

2 breaking windows, vandalizing private property, breaking into and occupying a large abandoned

3 building near the Plaza, and starting a bon fire in the street.” Jordan Decl., 5:25-28. Oakland

4 insists that police reacted “surgically to these violent protesters without disturbing the demonstrators

5 who had returned to the Plaza.” Id. at 5:28-6:2. According to him, police first communicated to

6 peaceful protesters that they would be limiting their response to those behaving destructively or

7 violently before deploying tear gas and less lethal munitions. Approximately eighty demonstrators

8 were ultimately arrested.

9

Although Oakland generally acknowledges that the confrontations on both October 25 and

10 November 2 were “tense, violent, and chaotic,” it insists that police acted in compliance with the

11 Crowd Policy on both occasions, and will continue to do so. Defs.’ Opp’n Br. to T.R.O., 4:22.

12 According to plaintiffs, these statements indicate that senior Oakland officials sanctioned the alleged

13 police misconduct. Plaintiffs also insist this must be so because the Crowd Policy itself requires

14 supervisory approval of the use of force. Interim Chief Jordan states he has ordered internal

15 investigations into reported injuries and alleged police misconduct. A supplemental declaration

16 submitted by Oakland notes such inquiries are supervised by this Court, pursuant to the settlement

17 of an earlier federal case. To that, plaintiffs observe that the Court’s monitor has found that

18 Oakland’s internal investigations procedures do not meet the settlement’s requirements.

19

Plaintiffs predict there will be further large-scale demonstrations. Oakland notes, in

20 supplemental materials, that three subsequent, smaller interactions between police and Occupy

21 protesters have transpired without incident. Plaintiffs and their supporters, however, stress that as a

22 result of past events they now hesitate to participate in future Occupy Oakland rallies out of fear for

23 their safety. They further suggest that police intimidation has stalled the Occupy Oakland

24 movement. Plaintiffs have also filed supplemental declarations by legal observers and journalists

25 stating that they feel they cannot safely observe the Occupy Oakland movement.

26

III. LEGAL STANDARD

27

A preliminary injunction order is an “extraordinary remedy” that is “never granted as of

28 right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To win a preliminary
5
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page6 of 13

United States District Court For the Northern District of California

1 injunction, a plaintiff must “establish that he is likely to succeed on the merits, that he is likely to

2 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

3 favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. Alternatively, if the

4 moving party can demonstrate the requisite likelihood of irreparable harm, and show that an

5 injunction is in the public interest, a preliminary injunction may issue so long as there are serious

6 questions going to the merits and the balance of hardships tips sharply in the moving party’s favor.

7 Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In any case, a court

8 “must balance the competing claims of injury and must consider the effect on each party of the

9 granting or withholding of the requested relief.” Amoco Prod. Co. v. Village of Gambell, AK, 480

10 U.S. 531, 542 (1987). Courts are “not mechanically obligated to grant an injunction for every

11 violation of law,” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982), and “should pay

12 particular regard for the public consequences in employing the extraordinary remedy of injunction.”

13 Winter, 555 U.S. at 24 (citing Weinberger, 456 U.S. at 313).

14

IV. DISCUSSION

15

In an apparent response to the suggestion that the relief requested in their motion for a

16 temporary restraining order was exceptionally broad, plaintiffs now characterize the scope of such

17 relief as being less intrusive into local law enforcement operations. Specifically, plaintiffs sought a

18 restraining order requiring defendants’ compliance with the entire Crowd Policy. Now they seek an

19 order enjoining Oakland from violating four specific provisions of the Crowd Policy, which govern 20 dispersal orders, and the use of less lethal munitions, flash bang grenades, and tear gas.2 These

21 changes, though nominally limiting, do not fundamentally alter the nature of the relief sought.

22 Plaintiffs’ claim that “[s]uch an order cannot be characterized as an attempt by the court to regulate

23 the internal affairs” of defendants, simply ignores the obvious. Pls.’ Suppl. Mot. for P.I., 20:1-2.

24 As before, the proposed order would require the court to supervise and oversee defendants’

25

26

2 The specific provisions of the Crowd Policy plaintiffs seek to have subject to Court enforcement are: V-G-1 (requiring repeated dispersal orders prior to deployment of dispersal tactics), VI-F-2

27

(detailed provisions governing the use of less lethal munitions), V-H-5-b, V-H-5-c and V-H-5-d (flash bang grenades must be deployed a safe distance from crowds and may not be used prior to

28

adequate warnings and exhaustion of less forceful alternatives), and V-H-4-b, and V-H-4-e (prohibiting use of tear gas prior to exhaustion of alternative tactics and warnings).

6

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page7 of 13

United States District Court For the Northern District of California

1 compliance with its own policy. Accordingly, federalism principles still disfavor judicial oversight

2 of local law enforcement agencies, absent evidence of concerted, officially-sanctioned violations of

3 constitutional rights. In an effort to demonstrate that Oakland has indeed engaged in such a pattern

4 of violations of protesters’ rights, plaintiffs argue that alleged police misconduct at large-scale

5 rallies has chilled their willingness to exercise their First Amendment rights, thereby damaging a

6 nascent political movement. Although plaintiffs have not abandoned their Fourth Amendment

7 claims, and still maintain that future police misconduct is imminent, they emphasize that the alleged

8 First Amendment violations resulted in ongoing injuries to protesters’ fragile free speech interests.

9 For the reasons discussed below, however, plaintiffs cannot escape federalism concerns and their

10 heavy burden of proof by characterizing their injuries expansively in First Amendment terms and

11 removing the relevant events from context.

12

A. Likelihood of success

13

To prevail, plaintiffs must first show that they will likely succeed on the merits of their

14 constitutional claims. Winter, 555 U.S. at 20. It is not enough to show that there is a “possibility”

15 of success. Id. at 22 (reversing Ninth Circuit’s “possibility” standard). Rather, there must be a

16 “clear showing” that the plaintiffs are entitled to preliminary relief. Id. As noted in the prior order,

17 plaintiffs have produced a significant body of evidence that establishes some probability of success

18 on their individual claims for relief for past violations of 42 U.S.C. § 1983. Ultimate success on

19 these claims, however, would entitle plaintiffs to money damages only, not injunctive relief.

20 Although plaintiffs may dispute that Oakland’s internal investigations and civil liability will provide

21 an adequate remedy, these are, ordinarily, the appropriate forms of redress for such injuries.

22

To demonstrate standing for injunctive relief, plaintiffs must overcome the Supreme Court’s

23 cautionary guidance that considerations of “equity, comity, and federalism” militate against federal

24 judicial supervision of state and lo cal law enforcement authorities. City of Los Angeles v. Lyons ,

25 461 U.S. 95, 112 (1983). Significantly, all of these jurisprudential concerns are at play in the

26 current case. As for federalism , “the need for a proper balance between st ate and federal autho rity

27 counsels restraint in the issuance of injunctions against state officer s engaged in the adm inistration

28 of the States’ criminal laws in the absence of i rreparable injury which is both great and immediate.”
7
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page8 of 13

United States District Court For the Northern District of California

1 City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983). Plaintiffs forcefully argue that they have met

2 Lyons’ requirement by documenting grave, ongoing Firs t and Fourth Am endment injuries that are

3 the result of “a pattern of officially sanctioned … behavior, violative of plaintiffs’ rights.” LaDuke

4 v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985). Nonetheless, this Court m ust still be m indful of

5 “[t]he special delicacy of the adjustment to be preserved betw een federal equitable power and State

6 administration of its own law.” Id., citing Stefanelli v. Minard, 342 U.S. 117, 120 (1951).

7

It follows, in evaluating plaintiffs’ contention that Oakland police engaged in a pattern of

8 officially sanctioned unconstitutional conduct, this Court may not ignore defendants’ version of

9 events – particularly where, as here, the underlying events and legal issues are subject to serious

10 dispute. City of Los Angeles v. Lyons, 461 U.S. 95, 112-13 (1982). Rather, the law obligates

11 consideration of “the interests of state and local authorities in managing their own affairs, consistent

12 with the Constitution.” Milliken v. Bradley, 433 U.S. 267, 280 (1977). Although plaintiffs have

13 developed an extensive factual record in a comparatively short time, significant disputes persist as to

14 whether: (1) these incidents were in fact violations of Oakland policy; (2) they constituted a

15 “pattern”; and (3) such violations (if any) were officially sanctioned, in the relevant sense. Since

16 denial of plaintiffs’ request for a restraining order, Oakland has not altered its position on these

17 questions. The City disputes, as a factual matter, that violations occurred, insists that any alleged

18 departures from constitutional norms or the Crowd Policy were the exception rather than the rule,

19 and vows to investigate and punish any misconduct that may have occurred.

20

Whatever the relative strength of each side’s factual record, mere proof of police misconduct

21 does not entitle plaintiffs to an injunction. As explained in greater detail below, because plaintiffs

22 have not shown a pattern of officially sanctioned misconduct, they have not dispelled doubt as to

23 their standing for injunctive relief, and therefore cannot establish a likelihood of success on the

24 merits. Although this shortcoming does not necessarily foreclose injunctive relief under Wild

25 Rockies so long as plaintiffs succeed in raising serious questions going to the merits of their claims,

26 for the reasons discussed below, no such adequate injury has been advanced, and it is not at all clear

27 that an injunction serves the public interest, or that the balance of hardships tips sharply in plaintiffs’

28 favor. Therefore the first factor weighs against issuing an injunction.
8
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page9 of 13

United States District Court For the Northern District of California

1

B. Immediate, irreparable harm

2

Plaintiffs’ request primarily fails because they have not sufficiently shown a likelihood of

3 “great and immediate” harm, and therefore have not established standing for injunctive relief.

4 Lyons, 461 U.S. at 113. Plaintiffs contend that the First and Fourth Amendment injuries allegedly

5 suffered by protesters at the hands of defendants are irreparable as a matter of law. See Elrod v.

6 Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal

7 periods of time, unquestionably constitutes irreparable injury”), and Mills v. District of Columbia,

8 571 F.3d 1304, 1312 (D.C. Cir. 2009) (same as to Fourth Amendment rights). They are

9 indisputably very serious if established. Nonetheless, to justify injunctive relief, plaintiffs must

10 show that they face a realistic threat of future injury.

11

Plaintiffs argue that they have done so by alleging “ongoing” injuries to “fragile” First

12 Amendment interests, which they contend threaten the health of Occupy Oakland. Specifically,

13 plaintiffs maintain that the alleged police misconduct has dissuaded active Occupy supporters from

14 attending rallies, and prevented legal observers and journalists from observing the protesters’

15 activities. See, e.g., K. Campbell Decl. in Supp. of Pls.’ Mot. For P.I., at 1 (named plaintiff

16 declaring, “I would very much like to take my children to one of the demonstrations, but I am not

17 willing to expose them to the police violence that I expect will occur again”). Although plaintiffs

18 correctly point out that courts have sometimes applied relaxed standing rules when a plaintiff alleges 19 First Amendment injuries, no special standard exists for nascent political movements.3 Oakland,

20 moreover, appears to doubt its conduct has had any appreciable chilling effect on protesters’ rights.

21 It is unnecessary to dwell on this question because it is ultimately defendants’ conduct, less the

22 alleged injury, that poses a stumbling block to plaintiffs’ request for preliminary injunctive relief.

23

24 3 It is not clear that such relaxed standing rules ought to apply to this case. The Ninth Circuit has

25

consistently limited its application of the arguably less demanding “actual and well-founded fear” standard to cases where plaintiff seeks pre-enforcement review of a statute’s or rule’s

26

constitutionality. See, e.g., Wolfsom v. Brammer, 616 F.3d 1045, 1062 (9th Cir. 2010), and Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009). But see Amnesty

27

Int’l v. Clapper, 638 F.3d 118, 135 (2d Cir. 2011) (plaintiffs’ adequately alleged prospective First Amendment injury based on “actual and well-founded fear” of surveillance by law enforcement). In

28

those circumstances, where enforcement of the challenged regime is planned, concerns about the threat or probability of future injury to the plaintiff are understandably less acute.

9

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page10 of 13

United States District Court For the Northern District of California

1

Under the analytical framework urged by plaintiffs, the “injury-in-fact” standing requirement

2 under Lyons’ may be satisfied by showing that “defendants engaged in a standard pattern of

3 officially sanctioned officer behavior violative of the plaintiffs’ constitutional rights.” LaDuke, 762

4 F.2d at 1324 (emphasis added, internal citation omitted). The Ninth Circuit emphasized in LaDuke,

5 “[t]he Supreme Court has repeatedly upheld the appropriateness of federal injunctive relief to

6 combat a ‘pattern’ of illicit law enforcement behavior.” Id. (citing Alee v. Medrano, 416 U.S. 802,

7 812 (1974)). LaDuke itself concerned the Immigration and Naturalization Service’s “standard

8 practice” of “initiating and executing searches of migrant farm housing [that] violated [migrant

9 workers’] Fourth Amendment rights.” Id. at 1321. In other words, the challenged conduct was a

10 routine law enforcement tactic used by the agency on a regular basis. Reviewing the sweep of

11 Supreme Court precedents, the LaDuke panel recognized that those cases draw a distinction between

12 patterns of misbehavior and “isolated incidents.” Id. See also Multi-Ethnic Immig. Workers

13 Organizing Network v. City of Los Angeles, 246 F.R.D. 621, 627 (C.D. Cal. 2007) (distinguishing

14 between “isolated event[s] caused by unusual or isolated factors” and a pattern of police misconduct

15 that stretched back to 1995, and encompassed multiple confrontations at a number of distinct

16 demonstrations).

17

In Allee v. Medrano, for instance, the Supreme Court considered a challenge to efforts by

18 Texas Rangers to disrupt a strike by the United Farm Workers. The Court characterized the

19 enjoined conduct as “but one part of a single plan by the defendants,” which included highly

20 targeted, unlawful arrests and detentions, illegal threats, harassment and physical assaults, that took

21 place over the course of a year. 416 U.S. 802, 812 (1974). The Court specifically noted that “the

22 District Court found a pervasive pattern of intimidation in which the law enforcement authorities

23 sought to suppress appellees’ constitutional rights.” Id. As the Court recalled in a later case, an

24 injunction was warranted in Allee because the District Court had “established beyond peradventure

25 not only a ‘persistent pattern’ but one which flowed from an intentional, concerted, and indeed

26 conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear

27 of coming back.” Rizzo v. Goode, 423 U.S. 362, 375 (1976).

28
10
No. C 11-05498 RS ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page11 of 13

United States District Court For the Northern District of California

1

Those circumstances hardly resemble the allegations against Oakland in this case. Here,

2 plaintiffs’ accusations arise from demonstrations that, they concede, were “unique” in size, unlike

3 other Occupy events, and tainted by groups of violent protesters. The attempt by plaintiffs to

4 reframe the issue, as Oakland’s excessive response to the only two large, violent rallies that

5 occurred during the Occupy Oakland movement, merely underscores that defendants’ conduct on

6 October 25 and November 2 was not part of a “standard pattern” but rather, a strained response to

7 exceptional circumstances. Plaintiffs cannot transform these two incidents, which collectively

8 occurred over a course of hours, into a “pattern” of misconduct by myopically focusing on discrete

9 interactions between police and individual protesters. To do so would be to ignore completely the

10 undisputed fact that the specific interactions upon which plaintiffs rely occurred within the context

11 of a pitched confrontation between police and hundreds of protesters, some of whom, plaintiffs 12 agree, were behaving destructively or violently.4 Lyons and LaDuke, far from supporting injunctive

13 relief in such circumstances, weigh heavily against judicial intervention.

14

Because no pattern is evident, it is unnecessary to determine whether Oakland sanctioned the

15 alleged misconduct. Nonetheless, Oakland’s position vis-à-vis any misconduct that may have

16 occurred further supports the conclusion that no injunction is warranted here. Unlike both LaDuke

17 and Allee, defendants here insist they have complied with the Crowd Policy as well as the law, and

18 intend to continue doing so in the future. The City acknowledges that “[c]rowd control and

19 dispersal actions following the declaration of an unlawful assembly is dangerous and difficult

20 work,” and notes that internal investigations are underway to guarantee that any possible police

21 misconduct does not recur. Defs.’ Opp’n Br. to T.R.O., at 4:26-27. Thus, this is not a case where

22 defendants engaged in an “intentional, concerted, and indeed conspiratorial effort to deprive the

23 organizers of their First Amendment rights and place them in fear of coming back.” Rizzo, 423 U.S.

24 at 375. Plaintiffs argue that Oakland must have sanctioned police misconduct because the Crowd

25 4 Plaintiffs argue that this case is distinct from Lyons because they and other peaceful protesters

26

were allegedly subjected to police misconduct based on “completely innocent behavior.” LaDuke, 762 F.2d at 1326. See also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041 (9th Cir. 1999)

27

(distinguishing Lyons where “plaintiffs did nothing illegal to prompt” the challenged conduct). Here, however, Oakland maintains that it did not wrongly subject innocents to excessive force, and

28

plaintiffs concede that at least some Occupy Oakland protesters were engaging in violence and property destruction. As a result, this case cannot be so neatly distinguished from Lyons.

11

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page12 of 13

United States District Court For the Northern District of California

1 Policy expressly requires supervisory approval prior to the use of forcible dispersal tactics. Whether

2 police commanders or other officials pre-approved violations of the Crowd Policy is a highly-

3 disputed and as yet unresolved question of fact. Though plaintiffs suggested at oral argument that

4 injunctive relief would be less justified if the City admitted to past misconduct rather than generally

5 denying it, they do not explain why Oakland subjects itself to increased exposure of court

6 intervention simply by disputing plaintiffs’ version of the facts in preliminary legal proceedings.

7

While not quite questioning Oakland’s good faith, plaintiffs discredit its assurances, and

8 claim the City’s professed compliance with its legal obligations ensure that it will do nothing to

9 prevent recurrent misconduct at future rallies, thereby reinforcing protesters’ fears. Plaintiffs invoke

10 several out-of-circuit cases for the proposition that a defendant’s defense of its own unconstitutional

11 policies may be evidence of a “realistic threat” of future injury. See DeJohn v. Temple Univ., 537

12 F.3d 301, 309 (3d Cir. 2008), and Dambrot v. Cent. Michigan Univ., 55 F.3d 1177, 1182-83 (6th

13 Cir. 1995). Tellingly, those cases concerned university conduct which did not implicate the

14 concerns in Lyons regarding judicial intervention into official local law enforcement activities. To

15 the extent plaintiffs doubt the adequacy of Oakland’s internal investigations, of course, the

16 appropriate recourse is to bring a direct challenge to those procedures, rather than to attack them

17 collaterally by requesting the courts to enjoin any potential misconduct that could warrant internal 18 inquiries.5

19

In sum, without diminishing the significance of the First Amendment injuries alleged by

20 plaintiffs, or doubting that such injuries could properly form a basis for injunctive relief in other

21 circumstances, here the prudential concerns articulated by Lyons must override plaintiffs’ request

22 for preliminary injunctive relief. Putting aside the disputed factual question of whether plaintiffs

23 have established that Oakland violated its own policies and protesters’ First or Fourth Amendment

24 rights, they have not shown that police engaged in a “standard pattern of officially sanctioned”

25 misconduct. LaDuke, 762 F.2d at 1324. Plaintiffs’ contention that First Amendment interests are

26

27

5 Plaintiffs have not demonstrated the requisite likelihood of success on their theory that, as thirdparty beneficiaries to the settlement in the Local 10 case, they are due an injunction because “the

28

City of Oakland has been unable to substantially comply with Court [o]rdered reforms of its Internal Affairs investigation procedures for almost nine years.” Pls.’ Suppl. Mot. for P.I., 22:6-7.

12

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

Case3:11-cv-05498-JST Document48 Filed12/12/11 Page13 of 13

United States District Court For the Northern District of California

1 particularly fragile, and therefore, perhaps, warrant more aggressive protection, does not supply 2 what is otherwise deficient in their request for injunctive relief.6 Accordingly, plaintiffs have not

3 sufficiently satisfied Lyons’ requirements to prevail on the second factor.

4

C. Balance of the equities & public interest

5

As before, the balance of the equities, and the public interest, do not clearly favor plaintiffs

6 or defendants. Neither party has revisited, in detail, their arguments concerning the balance of the

7 final two factors, and both maintain compelling interests. Plaintiffs, of course, seek to protect and

8 exercise their First and Fourth Amendment rights in ways that implicate the public interest. The

9 defendants, on the other hand, seek to protect the safety and property of Oakland residents

10 generally; their interests are therefore at least as significant as those advanced by plaintiffs.

11 Although plaintiffs deny that the proposed order would prove unworkable as a practical matter

12 (contrary to defendants’ contentions), they fall far short of establishing that either factor weighs in

13 favor of granting equitable relief, much less that the balance of the equities tip sharply in their favor,

14 per Wild Rockies. See 632 F.3d at 1131. As a result, the final two factors do not support issuance of

15 an injunction.

16

V. CONCLUSION

17

For the reasons stated, plaintiffs’ motion for a preliminary injunction is denied.

18

IT IS SO ORDERED.

19

20 Dated: 12/12/11 21 22

RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

23

24

25

6 Zorzi v. Cnty. of Putnam, invoked by plaintiffs, is of limited relevance to this case. 30 F.3d 885, 895-98 (7th Cir. 1994). There, an emergency dispatcher was fired in retaliation for espousing

26

political views that ran contrary to those of the local sheriff. Plaintiffs rely on Zorzi for the proposition that government conduct that has a “chilling effect” on the First Amendment rights of a

27

larger audience constitutes “pervasive and systematic” harm. However, the limited remedy provided by the Seventh Circuit in Zorzi was to reinstate the dispatcher – not to enjoin the sheriff

28

from violating the First Amendment by wrongfully terminating other employees. Accordingly, Zorzi does not support plaintiffs’ request for relief.

13

No. C 11-05498 RS

ORDER DENYING PRELIMINARY INJUNCTION

 
 Case3:11-cv-05498-JST Document86 Filed07/18/13 Page1 of 7

1 Alan L. Schlosser (#49957) Michael T. Risher (#191627)
2 Linda Lye (#215584) ACLU Foundation of Northern California
3 39 Drumm Street San Francisco, CA 94111
4 (415) 621-2493; (415) 255-1478 aschlosser@aclunc.org,
5 mrisher@aclunc.org, llye@aclunc.org

6 Attorneys for Plaintiffs Kerie Campbell, Marcus Kryshka, and ACLU-NC
7 RACHEL LEDERMAN, SBN 130192
8 Rachel Lederman & Alexsis C. Beach, Attorneys at Law
9 558 Capp Street San Francisco, CA 94110
10 (415) 282-9300; fax (415) 285-5066 rlederman@2momslaw.com
11 and additional counsel listed on pleadings
12 Attorneys for plaintiffs Timothy Scott
13 Campbell et al.

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16

17 TIMOTHY SCOTT 18 CAMPBELL, et al.,

19

Plaintiffs,

20

vs.

21 CITY OF OAKLAND, et al.

22

Defendants.

No. C11-05498 JST (LB)
STIPULATION FOR ENTRY OF FINAL ORDER OF DISMISSAL, AND FOR SEALING AND DESTRUCTION OF ARREST RECORDS, PURSUANT TO SETTLEMENT

23

24

WHEREAS, Plaintiffs TIMOTHY SCOTT CAMPBELL, KERIE CAMPBELL,

25 MARCUS KRYSHKA, MARC MCKINNIE, MICHAEL SIEGEL, and the AMERICAN CIVIL

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

1

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page2 of 7

1 LIBERTIES UNION OF NORTHERN CALIFORNIA, filed a civil rights lawsuit on

2 November 14, 2011, seeking both injunctive relief and monetary damages arising from

3 Oakland Police actions during demonstrations associated with Occupy Oakland on

4 October 25, 2011, and November 2, 2011;

5

WHEREAS, Claimants, MAX BELL ALPER, BROOKE ANDERSON, KEVIN

6 CHRISTENSEN, MATHIAS BERNARDING, MARA RANDLE, SUKAY SOW, MAX

7 STIERS, DAVID MORSE, DERECK CLEMONS, SCOTT WHITACRE, and SUZI

8 SPANGENBERG, filed administrative tort claims with the City of Oakland pursuant to

9 Cal. Govt. Code, § 910 et seq., arising from these same Oakland Police actions;

10

WHEREAS, the Parties agreed to extend the deadline for amendment of pleadings,

11 and to toll the applicable time limitations on California state law claims both as to the

12 named Plaintiffs and the Claimants, and to participate in settlement discussions regarding

13 the claims of the eleven Claimants as well as the six Plaintiffs, to see if the matter could

14 be resolved without naming additional Plaintiffs and Defendants;

15

WHEREAS, Plaintiffs herein asserted claims for injunctive relief that are identical

16 to injunctive relief sought in another, earlier filed matter, Spalding et al. v. City of

17 Oakland, et al., No. C11-02867 TEH (LB), which is a class action;

18

WHEREAS, the Parties and Claimants participated in two settlement conferences

19 before Magistrate Judge Laurel Beeler, and additional settlement negotiations before

20 Judge Beeler pertaining to the overlapping claims for injunctive relief in this case and

21 Spalding;

22

WHEREAS, a settlement agreement has been reached in the Spalding class action

23 which also resolves the claims for injunctive relief in the instant case, which class action

24 settlement has been preliminarily approved by Judge Henderson and is pending final

25 approval following a final hearing on September 9, 2013;

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

2

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page3 of 7

1

WHEREAS, Plaintiffs, Claimants and Defendants have taken into account the

2 uncertainty, risks, time and expense inherent in litigation, and thus have agreed to resolve

3 this matter upon the terms, and subject to the conditions set forth in this Stipulation;

4

WHEREAS, the undersigned counsel have authority on behalf of their respective

5 clients to enter into this Stipulation and to fully resolve this matter on the terms herein;

6

THEREFORE, the Parties jointly request that the Court enter a final order of

7 dismissal as follows.

8

A. Monetary Settlement

9

In consideration of the Releases signed by the individual Plaintiffs and Claimants,

10 transmitted herewith to Defendants’ counsel, the Defendants will pay the total sum of

11 $1,170,000, within twenty (20 ) days of the date of this Court’s final order. Said payment

12 shall include all attorney’s fees and costs and shall be made payable to Rachel Lederman,

13 Attorney Trust Account.

14

This total sum shall include the individual monetary settlements as specified

15 below, which are inclusive of fees and costs:

16

MAX BELL ALPER: $30,000

17

BROOKE ANDERSON: $20,000

18

KEVIN CHRISTENSEN: $20,000

19

MATHIAS BERNARDING: $35,000

20

MARA RANDLE: $40,000

21

SUKAY SOW: $210,000

22

MAX STIERS: $75,000

23

DAVID MORSE: $40,000

24

DERECK CLEMONS: $30,000

25

SCOTT WHITACRE: $20,000

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

3

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page4 of 7

1

SUZI SPANGENBERG: $500,000

2

TIMOTHY SCOTT CAMPBELL: $150,000

3

The claims of Plaintiffs KERIE CAMPBELL, MARCUS KRYSHKA, MARC

4 MCKINNIE, MICHAEL SIEGEL, and AMERICAN CIVIL LIBERTIES UNION OF

5 NORTHERN CALIFORNIA shall be dismissed in consideration of the non-monetary

6 relief as set forth below.

7

B. Non-Monetary Settlement

8

1. Sealing and Destruction of Arrest Records of MAX BELL ALPER,

9 BROOKE ANDERSON, KEVIN CHRISTENSEN, MARA RANDLE, and

10 MATHIAS BERNARDING:

11

a. All arrest records, police reports, investigative reports, booking information, on

12 line data, or any other documentation or information pertaining to the arrests of the above

13 five Claimants, in the possession of Defendants shall be sealed and destroyed.

14

b. The Parties stipulate that the relief shall be the equivalent of a determination of

15 factual innocence pursuant to California Penal Code section 851.8, and that the

16 procedural requirements of that statute shall be waived, including any time deadlines and

17 notice to the District Attorney.

18

c. Pursuant to the stipulation of Defendants, the Court shall issue an Order in the

19 names of the above five Claimants, stating that it is the determination of the Court that the

20 Claimants are factually innocent of the charges for which they were arrested on October

21 25, 2011, and that they are thereby exonerated. Thereafter, the arrest shall be deemed not

22 to have occurred and the person may answer accordingly any question relating to its

23 occurrence. (See, California Penal Code section 851.8, subd. (f).)

24

d. Destruction of records of arrest pursuant to the Court's order shall be

25 accomplished by permanent obliteration of all entries or notations upon the records

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

4

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page5 of 7

pertaining to the arrest, and the record shall be prepared again so that it appears that the 1

arrest never occurred. However, where the only entries on the record pertain to the arrest 2

and the record can be destroyed without necessarily affecting the destruction of other 3

records, the document constituting the record shall be physically destroyed. (See, Penal 4

Code section 851.8, subd. (j).) 5

e. Defendants will provide a copy of the Court’s Order to the California 6

Department of Justice, along with the names of said five Claimants and advise said 7

agency of the fact that the records of their arrests have been rendered obsolete on the 8

basis of a finding of factual innocence pursuant to Penal Code 851.8. 9

2. Crowd Control Policy Agreement (Spalding v. City of Oakland et. al., No.

10

011-02867 TEH.)

11

The Parties incorporate herein by this reference, Paragraphs III.C.2 & III.J.8 of the

12 settlement agreement in Spalding et. al. City of Oakland et. al., No. 011-02867 TEH,

13 pertaining to Oakland’s Crowd Control Policy. A complete copy of the Spalding

14 settlement agreement is attached as Exhibit 1 hereto.

15

The portion of the Spalding settlement agreement incorporated herein is

16 summarized as follows:

17 •

Defendants agree that they will continue to abide by the Oakland Police Crowd

18

Control Policy as incorporated in the prior Coles / Local 10 (C03-2961, 2962

19

TEH) settlement stipulation and order dated December 24, 2004, and attached

20

hereto as Exhibit C.

21 •

Defendants additionally agree to meet and confer with National Lawyers Guild and

22

ACLU counsel before making any material change to that Crowd Control Policy

23

and its associated Training Bulletin (OPD TB III-G, issued 27 Oct. 2005).

24 •

In addition, the parties stipulate to the Court’s retention of jurisdiction to enforce

25

these terms for a four year period, extendable by an additional three years as

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

5

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page6 of 7

provided in Exhibit B, Paragraph III.J.8, and request that the Court appoint 1
Magistrate Judge Laurel Beeler, who has overseen settlement in both this matter 2
and Spalding, for resolution of any disputes, to facilitate the meet and confer 3
process referenced above, and to issue all appropriate orders concerning the 4
Spalding Settlement Agreement and the implementation and enforcement thereof. 5
NOW, THEREFORE, the foregoing terms are hereby STIPULATED AND 6
AGREED, by and among the Parties, through their respective counsel and the Parties 7
respectfully request that the Court enter the proposed stipulated Final Order of Dismissal 8
and for Sealing and Destruction of Arrest Records. 9

10 Dated: July 17, 2013
11 12 13 14 15
Dated: July 17, 2013 16 17 18
Dated: July 17, 2013 19 20 21 22

RACHEL LEDERMAN BOBBIE STEIN R. MICHAEL FLYNN JAMES B. CHANIN CAROL SOBEL By: /S/ RACHEL LEDERMAN, Attorney for Plaintiffs T.S. Campbell, M. McKinnie, and M. Siegel
ACLU Foundation of Northern California By: /S/ LINDA LYE, Attorney for Plaintiffs C. Campbell, M. Kryshka, and ACLU of Northern California
BARBARA J. PARKER, CITY ATTORNEY, CITY OF OAKLAND By: /S/ RANDOLPH W. HALL Attorneys for Defendants CITY OF OAKLAND, et al.

23

24

25

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

6

28

Case3:11-cv-05498-JST Document86 Filed07/18/13 Page7 of 7

1

SIGNATURE ATTESTATION

2

I am the ECF User whose ID and Password are being used to file

this stipulation. In compliance with General Order 45, X.B., I hereby attest that Mr. Hall 3 and Ms. Lye have concurred in this filing.

4 Dated: July 17, 2013 5

/S/ Rachel Lederman

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STIP FOR ENTRY OF FINAL ORDER AND SEALING & DESTRUCTION

27

Campbell, et al. v.. City of Oakland, Case No. C11-05498 JST (LB)

7

28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page1 of 14

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 DANIEL SPALDING, et al.,

5

Plaintiffs,

6

vs.

7 CITY OF OAKLAND, et al.

8

Defendants.

No. C11-02867 TEH (LB)

9

10

SETTLEMENT AGREEMENT

11

The Parties: Plaintiffs DANIEL SPALDING, KATHARINE LONCKE,

12 DANIELLE LOPEZ GREEN, ADRIAN DRUMMOND-COLE, on behalf of themselves

13 and each Class Member, as defined below; Defendants CITY OF OAKLAND,

14 ANTHONY BATTS, HOWARD JORDAN, JEFF ISRAEL, ERIC BRESHEARS,

15 EDWARD TRACEY, ANTHONY TORIBIO, DAVID DOWNING, ERSIE JOYNER,

16 MIKE POIRIER, and DARRIN ALLISON (hereafter, “OAKLAND DEFENDANTS”);

17 and Defendants COUNTY OF ALAMEDA and GREGORY AHERN (hereafter,

18 “COUNTY DEFENDANTS”); by and through their respective counsel, agree and

19 stipulate as follows.

20

I. The Litigation

21

On June 13, 2011, Plaintiffs filed a class action complaint asserting violations of

22 their First, Fourth, and Fourteenth Amendment rights, and their rights under California

23 state law, arising from a mass arrest which occurred on November 5, 2010. The 150

24 Class Members were arrested during a march protesting police misconduct and the

25 sentencing of Johannes Meserhle, the BART officer convicted in the death of Oscar

26 Grant. It is undisputed that the Class Members were not given an order or opportunity to

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 1

28

EXHIBIT

1

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page2 of 14

1 disperse.

2

Following their arrest by the Oakland Police and a period of detention on the

3 street, the 150 Class Members were placed in the custody of the Alameda County Sheriff

4 and detained in buses and other vehicles, and in an Alameda County Jail holding area, for

5 a total of 14 - 24 hours before being released with citations for unlawful assembly. No

6 charges were ever filed against any of the Class Members.

7

Plaintiffs alleged that the arrests and imprisonment violated the OPD Crowd

8 Management / Crowd Control Policy adopted in settlement of Coles v. City of Oakland

9 and Local 10, ILWU, v. City of Oakland, Nos. C03-2961 and 2962 TEH.

10

Plaintiffs requested monetary damages, attorney's fees and costs, and an injunction

11 to restrain defendants from continuing to violate plaintiffs’ rights and the protections for

12 these rights in the Crowd Control Policy; and an order requiring defendants to seal and

13 destroy all records derived from this arrest, and declaring the arrests null and void.

14

On March 23, 2012, the Court granted Plaintiffs’ motion for class certification.

15 (Docket No. 41.) In May, 2012, Plaintiffs’ Counsel disseminated class notice in the

16 manner specified in this Court's May 8, 2012, Order (Docket No. 54.) The class notice

17 specified a deadline to June 20, 2012, for exclusion from the class. No one requested to

18 be excluded from the class.

19

The Parties engaged in preliminary discovery including written discovery, and

20 depositions of two Oakland Police defendants and two Sheriff’s personnel. The Parties

21 then agreed to stay discovery and litigation and engage in settlement discussions.

22

II. The Settlement Process

23

Between June 18, 2012 and the present, the Parties have participated in four all day

24 and two partial day settlement conferences with Magistrate Judge Laurel Beeler, as well

25 as several telephone conferences with Judge Beeler and a separate meeting between

26 plaintiffs’ counsel and the Alameda County defendants. As a result of these extensive

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 2
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page3 of 14

1 settlement negotiations, and with Judge Beeler’s assistance, the Parties have now agreed

2 on a complete settlement of this litigation, the terms of which are set forth below.

3

Plaintiffs and Defendants have taken into account the uncertainty, risks, time and

4 expense inherent in litigation, and have concluded that it is reasonable, desirable and in

5 the public interest that this litigation be settled in the manner and upon the terms and

6 conditions set forth in this Stipulation. Plaintiffs and their counsel believe that the

7 settlement as set forth in this Stipulation confers substantial benefits on the Class, and the

8 general public, and that it is fair and reasonable. Based on their evaluation, Plaintiffs and

9 their counsel have determined that the settlement set forth in the Stipulation is in the best

10 interests of the Class.

11

III. The Settlement Agreement and Terms of Stipulation

12

A. Definitions

13

“Effective Date” shall be when the Judgment has become Final as defined below.

14

“Final” means the date on which the Court has entered the Judgment, following

15 submission of this Settlement Agreement and the Final Approval Motion to the Court.

16

“Preliminary Approval Motion” means a motion filed with the Court

17 requesting that the Court consider and preliminarily approve the Settlement

18 Agreement.

19

“Final Approval Motion” shall mean a motion filed with the Court requesting

20 that the Court consider and, if it finds the settlement to be fair and reasonable, finally

21 approve the Settlement Agreement.

22

“Final Approval Hearing” means the hearing to be held by the Court to consider

23 and determine whether the proposed Settlement of the Litigation as contained in this

24 Stipulation should be approved as fair, reasonable, and adequate, and whether the

25 Judgment should be entered.

26

“Judgment” means the Final Judgment and Order of Dismissal with Prejudice to be

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 3
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page4 of 14

1 rendered by the court.

2

“Approved Claim” means a claim submitted no later than the Bar Date by a Class

3 member other than a Representative Plaintiff which is approved by plaintiffs’ counsel.

4

“Bar Date” means that date specified herein by which Claim Forms submitted by

5 Class Members must be delivered or post-marked in order to be considered for payment

6 pursuant to the terms of the Settlement described in this Stipulation.

7

“Class” means the class as defined in the Court’s March 23, 2012, Order granting

8 class certification: “The approximately 150 people who were arrested in the mass arrest

9 on 6th Avenue between East 17th and 18th Streets in Oakland on November 5, 2010, and

10 who were never charged with any crime related to this arrest.”

11

“Class Members” means all persons within or encompassed by the definition of the

12 Class.

13

“Class Representatives” or “Plaintiffs” means Daniel Spalding, Katharine Loncke,

14 Danielle Lopez Green, and Adrian Drummond-Cole.

15

“Claimants” means Class members who actually file claims pursuant to the

16 procedures set forth in the Court’s Preliminary Approval Order.

17

“Class Notice of Settlement Agreement” means the written notice, together with

18 the Publication Notice, which shall include the general terms of the Settlement

19 Agreement, and the date of the Final Approval Hearing. The Class Notice of Settlement

20 shall conform to all applicable requirements of the Federal Rules of Civil Procedure, due

21 process, any other applicable law, and shall otherwise be in the manner and form

22 approved by the Court.

23

“Claim Form” means that form which Class Members must submit in order to

24 qualify to participate in the settlement described in this Stipulation.

25

“The Parties” means the parties to this settlement agreement,

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 4
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page5 of 14

1 who are the Plaintiffs and the Class, and the Oakland Defendants and County Defendants,

2 defined above.

3

“Court” means the United States District Court for the Northern District of

4 California.

5

“Class Counsel” or “Plaintiffs’ Counsel” means the class counsel appointed in the

6 Court’s March 23, 2012, Order granting class certification: Rachel Lederman, Bobbie

7 Stein, R. Michael Flynn, Carol Sobel, Mara Verheyden-Hilliard and Carl Messineo.

8

“Lead Counsel for Plaintiffs” means Rachel Lederman.

9

“Class Settlement Fund” means the sum to be paid by the Defendants, totaling

10 $1,025,000, not subject to reversion, which will be funded and distributed as further

11 described in this Agreement.

12

B. Monetary Settlement

13

In consideration of the Release set forth in section III.G. of this Stipulation and the

14 entry of Judgment on the claims of all Class Members, the Defendants will jointly pay the

15 sum of $1,025,000, within fifteen (15) days of the Effective Date of this settlement. Said

16 payment shall include all attorney’s fees and costs and shall be made payable to Rachel

17 Lederman, Attorney Client Trust Account, to be distributed to the Class Representatives,

18 Claimants and Class Counsel by that office as follows:

19

The four Class Representatives shall each receive $9,000;

20

Those Claimants who have submitted Approved Claims shall each receive an equal

21 part of $639,000;

22

Class Counsel shall receive $350,000 for attorneys’ fees and costs, including all

23 costs associated with the administration of the Class Settlement Fund, transmittal and

24 publication of the Class Notice of Settlement Agreement and Claim Forms, review and

25 approval of Claim Forms and payment of Approved Claims.

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 5
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page6 of 14

1

C. Non-Monetary Settlement

2

1. Sealing and Destruction of Arrest Records

3

The Parties stipulate to the following and seek the Court's order granting such

4 relief as of the Effective Date:

5

a. All arrest records, police reports, investigative reports, booking information, on

6 line data, or any other documentation or information pertaining to the arrests of the

7 Plaintiffs and Claimants who have submitted Approved Claims in the possession of the

8 Oakland Defendants and County Defendants shall be sealed and destroyed.

9

b. The Parties stipulate that the relief shall be the equivalent of a determination of

10 factual innocence pursuant to California Penal Code section 851.8, and that the

11 procedural requirements of that statute shall be waived, including any time deadlines and

12 notice to the District Attorney.

13

c. The Court shall issue an Order in the names of all of the Plaintiffs and

14 Claimants who have submitted Approved Claims, stating that it is the determination of

15 the Court, pursuant to the stipulation of the Oakland defendants (the arresting agency),

16 that the Plaintiffs and Claimants are factually innocent of the charges for which they were

17 arrested and that they are thereby exonerated. Thereafter, the arrest shall be deemed not

18 to have occurred and the person may answer accordingly any question relating to its

19 occurrence. (See, California Penal Code section 851.8, subd. (f).)

20

d. Destruction of records of arrest pursuant to the Court's order shall be

21 accomplished by permanent obliteration of all entries or notations upon the records

22 pertaining to the arrest, and the record shall be prepared again so that it appears that the

23 arrest never occurred. However, where the only entries on the record pertain to the arrest

24 and the record can be destroyed without necessarily affecting the destruction of other

25 records, the document constituting the record shall be physically destroyed. (See, Penal

26 Code section 851.8, subd. (j).)

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 6
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page7 of 14

1

e. Defendants will provide a copy of the Court order to the California Department

2 of Justice, along with a list of all Class Members and advise said agency of the fact that

3 the records of their November 5, 2010 arrests have been rendered obsolete on the basis of

4 a finding of factual innocence pursuant to Penal Code 851.8.

5

2. Coles / Local 10 Settlement and Crowd Control Policy

6

The Oakland Defendants will continue to abide by the terms of the Coles / Local

7 10 (C03-2961 and 2962 TEH) settlement stipulation and order dated December 24, 2004,

8 which is attached as Exhibit A and incorporated by reference herein.

9

The parties agree that the meet and confer requirement specified in the Coles /

10 Local 10 settlement stipulation and order at page 5, line 28, through page 6, line 9, will be

11 satisfied if: Before making any material change to the Crowd Control Policy (as set forth

12 in Exhibit A) or the associated Training Bulletin (OPD TB III-G, issued 28 Oct. 2005), or

13 to associated training outlines, the Oakland Police Department and its counsel will meet

14 and confer with representatives of the National Lawyers Guild - SF Bay Area Chapter,

15 and the ACLU of Northern California, in a good faith effort to reach agreement on such

16 changes.

17

All participants will bear their own attorney's fees and costs related to any such

18 meet and confer process.

19

3. Citation and Release Policy - OPD

20

The Oakland Police Department will adopt the following policy regarding Citation

21 and Release of misdemeanor arrestees in instances of multiple simultaneous arrest, and

22 Paragraph VIII of OPD Training Bulletin III-G, Crowd Control, shall be amended

23 accordingly, as follows:

24

A. The OPD will comply with Penal Code section 853.6, and with Department

25 General Order M-7, "Citations for Adult Misdemeanors", III, A-N, by citing and releasing

26 individuals who qualify for such under the Penal Code.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 7
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page8 of 14

1

B. When it is impractical to cite arrestees at or near the site of the demonstration

2 because of a substantial risk that this procedure would allow the unlawful activity to

3 continue or because of specific geographic factors, OPD may cite and release arrestees

4 from temporary processing stations or police facilities as near the site of the arrest as

5 possible. While detained during the citation and release process, arrestees shall have

6 reasonable access to toilet facilities and to appropriate medical attention.

7

C. No fingerprinting will be done as part of the citation and release process.

8 Arrestees may be instructed to appear for booking prior to or after arraignment.

9 Commanders shall exercise discretion as to whether property searches are necessary.

10 Property of persons who qualify for citation and release will not be confiscated unless it is

11 found to contain contraband. The intention of this policy is to release citation-eligible

12 arrestees as promptly as possible, and to obviate the need to transfer such arrestees to the

13 Sheriff's custody. Persons for whom a valid warrant is confirmed, or who do not produce

14 valid identification or who are otherwise found ineligible for citation will be transferred

15 to the Sheriff's custody.

16

D. An officer seeking to book a misdemeanor arrestee into jail must have an

17 articulable basis to believe that one of the specified statutory exceptions to mandatory cite

18 and release applies to that individual. This basis must be documented in the police report.

19

E. The mere fact that further demonstrations are likely to be held in the near future

20 is not a proper basis to apply subdivision (7) of P.C. 853.6 ("reasonable likelihood that the

21 offense may continue or resume") to individual demonstrators.

22

F. There must be an articulable objective basis to believe that, if cited out, those

23 specific indi-viduals would continue the same illegal activity for which they were

24 arrested.

25

G. Individuals may not be booked into jail on the sole basis of a felony charge

26 consisting of conspiracy to commit a misdemeanor.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 8
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page9 of 14

1.

4. Citation and Release Policy - Alameda County

2

The Alameda County Sheriff’s Office will adopt a new policy and procedure to

3 expedite the citation and release of citation-eligible persons who are transferred to the

4 Sheriff’s custody as the result of mass arrest, as defined in the new policy, Detention and

5 Corrections Policy and Procedure No. 11.65, attached hereto as Exhibit B and

6 incorporated herein by this reference. The new policy and procedure is specifically

7 intended to ensure the prompt release of those mass arrestees who are eligible for citation

8 and release under Penal Code section 853.6, and to protect their health and comfort

9 during the time they are temporarily detained.

10

As such, mass arrestees will have access to toilet facilities at all times, except

11 while actually in transit from the arrest site to the jail. Handcuffs will be checked before

12 arrestees are transported to the jail and arrestees will not be accepted for transport unless

13 a Deputy has verified that the handcuffs are properly applied and not likely to cause injury

14 or undue discomfort. Handcuffs will be removed at the jail facility as soon as it is safe to

15 do so without jeopardizing safety and security. Each vehicle used to transport mass

16 arrestees to jail shall be equipped with a flexcuff cutter to be used in the case of an

17 emergency. Mass arrestees who are eligible for citation and release and who provide a

18 valid California driver’s license or identification card will not be fingerprinted prior to

19 citation and release.

20

D. Preliminary Approval

21

As soon as possible, and in no event more than five days, after execution of this

22 Stipulation, the Parties shall jointly submit the Stipulation together with its Exhibits to

23 the Court and shall jointly apply for entry of a Preliminary Approval Order substantially

24 in the form set forth in Exhibit C, requesting, inter alia, the preliminary approval of the

25 Settlement set forth in this Stipulation, and approval/ dissemination of Class Notice of the

26 Settlement and the proposed Claim Form.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 9
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page10 of 14

1

E. Class Notice of the Settlement and Claim Form

2

After Notice of Settlement Agreement, the Class Members shall have 21 days to

3 file a Claim Form, or to object to the Settlement Agreement following the procedure set

4 forth in the Notice.

5

F. Final Approval

6

A Final Approval Hearing shall be set no less than 30 days after the Court

7 issues its Preliminary Approval Order. The parties jointly request that, at the Final

8 Approval Hearing, the Court approve the settlement of the Litigation and enter Judgment

9 in a form substantially similar to that attached hereto as Exhibit D.

10

G. Releases and Bar Order

11

1. Upon the Effective Date, as defined above, the Parties shall be

12 deemed to have, and shall have, fully, finally, and forever waived, released, relinquished,

13 discharged, and dismissed all claims arising from the events alleged in Plaintiffs’

14 Complaint.

15

2. Upon the Effective Date, the Plaintiffs and Class Members shall be forever

16 barred and enjoined from commencing, instituting, prosecuting or continuing to prosecute

17 any action or other proceeding in any court oflaw or equity, arbitration tribunal, or

18 administrative forum, asserting any claims arising from the events alleged in Plaintiffs’

19 Complaint.

20

3. Upon the Effective Date, each of the Defendants shall be deemed to

21 have, and by operation of the Judgment shall have, fully, finally, and forever released,

22 relinquished, and discharged Plaintiffs and Plaintiffs' Counsel from all claims (including

23 Unknown Claims) arising out of, relating to, or in connection with the institution,

24 prosecution, assertion, settlement or resolution of the Litigation or the determination

25 regarding approval or disapproval of any claim submitted.

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 10
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page11 of 14

1

H. Waiver and Covenant Not to Sue

2

Upon the Effective Date, each of the Defendants shall be deemed to have, and

3 shall have, fully, finally, and forever waived, released, and relinquished any claim for

4 malicious prosecution in connection with the Litigation. Each such Defendant covenants

5 that he or she will not institute any claim, lawsuit, arbitration, or proceeding of any nature

6 against Plaintiffs, any Class Member, or Plaintiffs' Counsel for any act or omission in

7 connection with this Litigation.

8

I. Conditions of Settlement, Effect of Disapproval

9

This Settlement is subject to the following conditions:

10

1. This Settlement is subject to the approval of the Court as provided in

11 Federal Rule of Civil Procedure 23(e).

12

2. If the Stipulation is not approved by the Court, or otherwise fails to become

13 effective in accordance with its terms and provisions, the terms and provisions of this

14 Stipulation, with the exception of this section, shall have no further force and effect with

15 respect to the Parties and neither this Stipulation nor any submission by any party in

16 connection with the Motion(s) for Preliminary or Final Approval or Appeal therefrom, or

17 any related motions or proceedings, may be used in this Litigation or in any other

18 proceeding for any purpose, and any judgment or order entered by the Court in

19 accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc.

20

J. Miscellaneous Provisions

21

1. The Parties (a) acknowledge that it is their intent to consummate the Settlement

22 set forth in this Stipulation, and (b) agree to cooperate to the extent reasonably necessary

23 to effectuate and implement all terms and conditions of the Stipulation and to exercise

24 their best efforts to accomplish and effectuate the terms and conditions of the Stipulation.

25

2. The Parties intend this settlement to be a final and complete resolution of all

26 disputes between them with respect to the Litigation. The settlement compromises claims

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 11
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page12 of 14

1 which are contested and shall not be deemed an admission by any Party as to the merits of

2 any claim or defense. The Parties agree that the terms of the settlement were negotiated in

3 good faith by the Parties, and reflect a settlement that was reached voluntarily after

4 consultation with competent legal counsel and with the assistance of Judge Beeler.

5

3. All of the exhibits to this Stipulation are material and integral parts hereof and

6 are fully incorporated herein by this reference.

7

4. The Stipulation and the exhibits attached hereto constitute the entire agreement

8 among the parties hereto and no representations, warranties or inducements have been

9 made to any party concerning the Stipulation or its exhibits other than the representations,

10 warranties, and covenants contained and memorialized in such documents.

11

5. This Stipulation may be amended or modified only by a written instrument

12 signed by or on behalf of all Parties. Lead Counsel for Plaintiffs, on behalf of the Class, is

13 expressly authorized by the Plaintiffs to take all appropriate action required or permitted

14 to be taken by the Class pursuant to the Stipulation to effectuate its terms and also is

15 expressly authorized to enter into any modifications or amendments to the Stipulation on

16 behalf of the Class which she deems appropriate.

17

6. Each attorney or other person executing the Stipulation or any of its exhibits on

18 behalf of any Party hereto hereby warrants that such person has the full authority to do

19 so.

20

7. The Stipulation shall be binding upon, and inure to the benefit of, the successors

21 and assigns of the Parties hereto.

22

8. The Court shall retain jurisdiction of this matter after these claims are dismissed

23 to enforce the terms of this Settlement Agreement for four years from the Effective Date,

24 with the proviso that within that four year time period if there is a material breach of the

25 terms of this Settlement Agreement any Party may move the court to extend the time for

26 up to an additional three years. The Parties further request that the Court appoint

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 12
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page13 of 14

1 Magistrate Judge Laurel Beeler for resolution of any disputes, to facilitate the meet and

2 confer process referenced in paragraph III.C.2, and to issue all appropriate orders

3 concerning this Settlement Agreement and the implementation and enforcement thereof.

4

9. This Settlement Agreement was drafted with substantial review and input by all

5 Parties and their counsel, and no reliance was placed on any representations other than

6 those contained herein. The Parties agree that this Settlement Agreement shall be

7 construed by its own terms, and not by referring to, or considering, the terms of any other

8 settlement, and not by any presumption against the drafter.

9

NOW, THEREFORE, the foregoing terms are hereby STIPULATED AND

10 AGREED, by and among the Parties, subject to approval of the Court pursuant to Rule

11 23(e) of the Federal Rules of Civil Procedure.

12

13 DATED: May 16, 2013 14

BOORNAZIAN, JENSEN & GARTHE A Professional Corporation

15

By: /S/__________________________

16

GREGORY J. ROCKWELL, ESQ.

Attorneys for Defendants

17

COUNTY OF ALAMEDA and GREGORY AHERN

18 DATED: May 16, 2013
19

BARBARA J. PARKER, CITY ATTORNEY, CITY OF OAKLAND

20

21

By: /S/___________________________

22

RANDOLPH W. HALL

Attorneys for Defendants

23

CITY OF OAKLAND, et al.

24 DATED: May 16, 2013
25 26

RACHEL LEDERMAN CAROL SOBEL BOBBIE STEIN R. MICHAEL FLYNN

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 13
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page14 of 14

1

MARA VERHEYDEN-HILLIARD

CARL MESSINEO

2

PARTNERSHIP FOR CIVIL JUSTICE FUND

3

4

By: /S/___________________________

5

RACHEL LEDERMAN

Attorneys for Plaintiffs and the Class

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 14
28

Case3:11-cv-05498-JST Document86-2 Filed07/18/13 Page1 of 4

1

UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA
3

4

5 6 TIMOTHY SCOTT CAMPBELL, et al.,

7

Plaintiffs,

8 vs.
9 10 CITY OF OAKLAND, et al.

No. C11-05498 JST (LB)
[PROPOSED] FINAL ORDER OF DISMISSAL AND FOR SEALING AND DESTRUCTION OF ARREST RECORDS

11

Defendants.

12

13 All Parties have stipulated to settlement in the above entitled case. The Stipulation
14
15 for Entry of Final Order of Dismissal and for Sealing and Destruction of Arrest Records,

16 dated June 17, 2013, has been filed with this Court. Accordingly, pursuant to the
17 stipulation of the Parties, and good cause appearing,
18 IT IS HEREBY ORDERED:
19
20 1. This Final Order incorporates by reference the terms set forth in the Stipulation and its

21 accompanying exhibits, which are attached hereto and incorporated by reference herein.
22 2. The Parties are directed to implement the aforementioned Stipulation in accordance
23 24 with its explicit terms and conditions.

25 3. Within twenty (20) days of the date of this Order, the Defendants shall pay the sum of

26

27 FINAL ORDER OF DISMISSAL, & FOR SEALING & DESTRUC. OF ARREST RECORDS Campbell, et al. v.. City of Oakland, Case No. CV11-05498 JST (LB)

28

1

Case3:11-cv-05498-JST Document86-2 Filed07/18/13 Page2 of 4

1 $1,170,000, to Plaintiffs’ counsel for distribution to the Plaintiffs, Claimants and their
2 attorneys, as set forth in the attached Stipulation.
3 4 4. Defendants shall be bound by the non-monetary terms as set forth in the attached

5 Stipulation, Exhibit A, which incorporates Paragraphs III.C.2 and III.J.8 of the settlement

6 agreement in Spalding v. City of Oakland et. al., No. 011-02867 TEH, also attached as
7 Exhibit B hereto. Specifically, the Parties have stipulated that Defendants will continue
8
9 to abide by Oakland Police Crowd Control Policy as set forth in the Coles / Local 10

10 (C03-2961, 2962 TEH) settlement stipulation and order dated December 24, 2004, and

11 attached as Exhibit C hereto, and that Defendants must meet and confer with Plaintiffs’ 12
counsel before making any material change to this Policy and its associated Training 13
14 Bulletin and training outlines. The Parties have also stipulated to a period of continuing

15 jurisdiction by the Court to enforce these settlement terms.
16 5. Pursuant to the Stipulation of the City of Oakland and former Chief of Police Jordan on
17 18 behalf of the arresting agency, the Oakland Police Department, this Court hereby

19 EXONERATES and finds the following people FACTUALLY INNOCENT of all

20 charges for which they were arrested by the Oakland Police on October 25, 2011: MAX
21 BELL ALPER, BROOKE ANDERSON, KEVIN CHRISTENSEN, MARA
22 23 RANDLE, and MATHIAS BERNARDING.

24 6. This Court, having found MAX BELL ALPER, BROOKE ANDERSON, KEVIN

25 CHRISTENSEN, MARA RANDLE, and MATHIAS BERNARDING to be factually

26

27 FINAL ORDER OF DISMISSAL, & FOR SEALING & DESTRUC. OF ARREST RECORDS Campbell, et al. v.. City of Oakland, Case No. CV11-05498 JST (LB)

28

2

Case3:11-cv-05498-JST Document86-2 Filed07/18/13 Page3 of 4

1 innocent of the charges for which the arrests were made, orders Defendants, the
2 Department of Justice, and any other law enforcement agency which participated in the
3 4 arrest of the above named individuals on October 25, 2011, to seal all records of their

5 arrest on October 25, 2011, and to destroy said records. (Cal. Penal Code, § 858.1, subd.

6 (b).)
7 7. The destruction of arrest records pursuant to this Court's order shall be accomplished
8
9 by permanent obliteration of all entries or notations upon the records pertaining to the

10 arrest, and the record shall be prepared again so that it appears that the arrest never

11 occurred. However, where the only entries on the record pertain to the arrest and the 12
record can be destroyed without necessarily affecting the destruction of other records, the 13
14 document constituting the record shall be physically destroyed. (See, Cal. Penal Code, §

15 851.8, subd. (j).)

16 8. The arrests of MAX BELL ALPER, BROOKE ANDERSON, KEVIN
17 CHRISTENSEN, MARA RANDLE, and MATHIAS BERNARDING are deemed not to
18
19 have occurred, and, pursuant to this Court’s order, the above named people may answer

20 accordingly any question relating to its occurrence. (See, Cal. Penal Code, § 851.8, subd.
21 (f).)
22 23 9. Defendants are ordered to provide a copy of this Court’s order to the California

24 Department of Justice, along with the names of the five individuals specified above, and

25 to advise said agency of the fact that the records of their arrests have been rendered

26

27 FINAL ORDER OF DISMISSAL, & FOR SEALING & DESTRUC. OF ARREST RECORDS Campbell, et al. v.. City of Oakland, Case No. CV11-05498 JST (LB)

28

3

Case3:11-cv-05498-JST Document86-2 Filed07/18/13 Page4 of 4

1 obsolete on the basis of a finding of factual innocence pursuant to Cal. Penal Code, §

2 851.8.
3

4

IT IS SO ORDERED, and pursuant to the Stipulation and the above terms, the

5 action is DISMISSED.

6 Dated: 7

8

____________________________________

9

HONORABLE JON S. TIGAR

UNITED STATES DISTRICT COURT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 FINAL ORDER OF DISMISSAL, & FOR SEALING & DESTRUC. OF ARREST RECORDS Campbell, et al. v.. City of Oakland, Case No. CV11-05498 JST (LB)

28

4

Campbell et al v. City of Oakland et al, Docket No. 3:11-cv-05498 (N.D. Cal. Nov 14, 2011), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Northern District of California; United States District Court for the Northern District of California Civil Rights - Other[440] 3:11-cv-05498 CLOSED

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 27

 
 Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page1 of 14

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 DANIEL SPALDING, et al.,

5

Plaintiffs,

6

vs.

7 CITY OF OAKLAND, et al.

8

Defendants.

No. C11-02867 TEH (LB)

9

10

SETTLEMENT AGREEMENT

11

The Parties: Plaintiffs DANIEL SPALDING, KATHARINE LONCKE,

12 DANIELLE LOPEZ GREEN, ADRIAN DRUMMOND-COLE, on behalf of themselves

13 and each Class Member, as defined below; Defendants CITY OF OAKLAND,

14 ANTHONY BATTS, HOWARD JORDAN, JEFF ISRAEL, ERIC BRESHEARS,

15 EDWARD TRACEY, ANTHONY TORIBIO, DAVID DOWNING, ERSIE JOYNER,

16 MIKE POIRIER, and DARRIN ALLISON (hereafter, “OAKLAND DEFENDANTS”);

17 and Defendants COUNTY OF ALAMEDA and GREGORY AHERN (hereafter,

18 “COUNTY DEFENDANTS”); by and through their respective counsel, agree and

19 stipulate as follows.

20

I. The Litigation

21

On June 13, 2011, Plaintiffs filed a class action complaint asserting violations of

22 their First, Fourth, and Fourteenth Amendment rights, and their rights under California

23 state law, arising from a mass arrest which occurred on November 5, 2010. The 150

24 Class Members were arrested during a march protesting police misconduct and the

25 sentencing of Johannes Meserhle, the BART officer convicted in the death of Oscar

26 Grant. It is undisputed that the Class Members were not given an order or opportunity to

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 1
28 EXHIBIT 1

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page2 of 14

1 disperse.

2

Following their arrest by the Oakland Police and a period of detention on the

3 street, the 150 Class Members were placed in the custody of the Alameda County Sheriff

4 and detained in buses and other vehicles, and in an Alameda County Jail holding area, for

5 a total of 14 - 24 hours before being released with citations for unlawful assembly. No

6 charges were ever filed against any of the Class Members.

7

Plaintiffs alleged that the arrests and imprisonment violated the OPD Crowd

8 Management / Crowd Control Policy adopted in settlement of Coles v. City of Oakland

9 and Local 10, ILWU, v. City of Oakland, Nos. C03-2961 and 2962 TEH.

10

Plaintiffs requested monetary damages, attorney's fees and costs, and an injunction

11 to restrain defendants from continuing to violate plaintiffs’ rights and the protections for

12 these rights in the Crowd Control Policy; and an order requiring defendants to seal and

13 destroy all records derived from this arrest, and declaring the arrests null and void.

14

On March 23, 2012, the Court granted Plaintiffs’ motion for class certification.

15 (Docket No. 41.) In May, 2012, Plaintiffs’ Counsel disseminated class notice in the

16 manner specified in this Court's May 8, 2012, Order (Docket No. 54.) The class notice

17 specified a deadline to June 20, 2012, for exclusion from the class. No one requested to

18 be excluded from the class.

19

The Parties engaged in preliminary discovery including written discovery, and

20 depositions of two Oakland Police defendants and two Sheriff’s personnel. The Parties

21 then agreed to stay discovery and litigation and engage in settlement discussions.

22

II. The Settlement Process

23

Between June 18, 2012 and the present, the Parties have participated in four all day

24 and two partial day settlement conferences with Magistrate Judge Laurel Beeler, as well

25 as several telephone conferences with Judge Beeler and a separate meeting between

26 plaintiffs’ counsel and the Alameda County defendants. As a result of these extensive

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 2
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page3 of 14

1 settlement negotiations, and with Judge Beeler’s assistance, the Parties have now agreed

2 on a complete settlement of this litigation, the terms of which are set forth below.

3

Plaintiffs and Defendants have taken into account the uncertainty, risks, time and

4 expense inherent in litigation, and have concluded that it is reasonable, desirable and in

5 the public interest that this litigation be settled in the manner and upon the terms and

6 conditions set forth in this Stipulation. Plaintiffs and their counsel believe that the

7 settlement as set forth in this Stipulation confers substantial benefits on the Class, and the

8 general public, and that it is fair and reasonable. Based on their evaluation, Plaintiffs and

9 their counsel have determined that the settlement set forth in the Stipulation is in the best

10 interests of the Class.

11

III. The Settlement Agreement and Terms of Stipulation

12

A. Definitions

13

“Effective Date” shall be when the Judgment has become Final as defined below.

14

“Final” means the date on which the Court has entered the Judgment, following

15 submission of this Settlement Agreement and the Final Approval Motion to the Court.

16

“Preliminary Approval Motion” means a motion filed with the Court

17 requesting that the Court consider and preliminarily approve the Settlement

18 Agreement.

19

“Final Approval Motion” shall mean a motion filed with the Court requesting

20 that the Court consider and, if it finds the settlement to be fair and reasonable, finally

21 approve the Settlement Agreement.

22

“Final Approval Hearing” means the hearing to be held by the Court to consider

23 and determine whether the proposed Settlement of the Litigation as contained in this

24 Stipulation should be approved as fair, reasonable, and adequate, and whether the

25 Judgment should be entered.

26

“Judgment” means the Final Judgment and Order of Dismissal with Prejudice to be

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 3
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page4 of 14

1 rendered by the court.

2

“Approved Claim” means a claim submitted no later than the Bar Date by a Class

3 member other than a Representative Plaintiff which is approved by plaintiffs’ counsel.

4

“Bar Date” means that date specified herein by which Claim Forms submitted by

5 Class Members must be delivered or post-marked in order to be considered for payment

6 pursuant to the terms of the Settlement described in this Stipulation.

7

“Class” means the class as defined in the Court’s March 23, 2012, Order granting

8 class certification: “The approximately 150 people who were arrested in the mass arrest

9 on 6th Avenue between East 17th and 18th Streets in Oakland on November 5, 2010, and

10 who were never charged with any crime related to this arrest.”

11

“Class Members” means all persons within or encompassed by the definition of the

12 Class.

13

“Class Representatives” or “Plaintiffs” means Daniel Spalding, Katharine Loncke,

14 Danielle Lopez Green, and Adrian Drummond-Cole.

15

“Claimants” means Class members who actually file claims pursuant to the

16 procedures set forth in the Court’s Preliminary Approval Order.

17

“Class Notice of Settlement Agreement” means the written notice, together with

18 the Publication Notice, which shall include the general terms of the Settlement

19 Agreement, and the date of the Final Approval Hearing. The Class Notice of Settlement

20 shall conform to all applicable requirements of the Federal Rules of Civil Procedure, due

21 process, any other applicable law, and shall otherwise be in the manner and form

22 approved by the Court.

23

“Claim Form” means that form which Class Members must submit in order to

24 qualify to participate in the settlement described in this Stipulation.

25

“The Parties” means the parties to this settlement agreement,

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 4
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page5 of 14

1 who are the Plaintiffs and the Class, and the Oakland Defendants and County Defendants,

2 defined above.

3

“Court” means the United States District Court for the Northern District of

4 California.

5

“Class Counsel” or “Plaintiffs’ Counsel” means the class counsel appointed in the

6 Court’s March 23, 2012, Order granting class certification: Rachel Lederman, Bobbie

7 Stein, R. Michael Flynn, Carol Sobel, Mara Verheyden-Hilliard and Carl Messineo.

8

“Lead Counsel for Plaintiffs” means Rachel Lederman.

9

“Class Settlement Fund” means the sum to be paid by the Defendants, totaling

10 $1,025,000, not subject to reversion, which will be funded and distributed as further

11 described in this Agreement.

12

B. Monetary Settlement

13

In consideration of the Release set forth in section III.G. of this Stipulation and the

14 entry of Judgment on the claims of all Class Members, the Defendants will jointly pay the

15 sum of $1,025,000, within fifteen (15) days of the Effective Date of this settlement. Said

16 payment shall include all attorney’s fees and costs and shall be made payable to Rachel

17 Lederman, Attorney Client Trust Account, to be distributed to the Class Representatives,

18 Claimants and Class Counsel by that office as follows:

19

The four Class Representatives shall each receive $9,000;

20

Those Claimants who have submitted Approved Claims shall each receive an equal

21 part of $639,000;

22

Class Counsel shall receive $350,000 for attorneys’ fees and costs, including all

23 costs associated with the administration of the Class Settlement Fund, transmittal and

24 publication of the Class Notice of Settlement Agreement and Claim Forms, review and

25 approval of Claim Forms and payment of Approved Claims.

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 5
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page6 of 14

1

C. Non-Monetary Settlement

2

1. Sealing and Destruction of Arrest Records

3

The Parties stipulate to the following and seek the Court's order granting such

4 relief as of the Effective Date:

5

a. All arrest records, police reports, investigative reports, booking information, on

6 line data, or any other documentation or information pertaining to the arrests of the

7 Plaintiffs and Claimants who have submitted Approved Claims in the possession of the

8 Oakland Defendants and County Defendants shall be sealed and destroyed.

9

b. The Parties stipulate that the relief shall be the equivalent of a determination of

10 factual innocence pursuant to California Penal Code section 851.8, and that the

11 procedural requirements of that statute shall be waived, including any time deadlines and

12 notice to the District Attorney.

13

c. The Court shall issue an Order in the names of all of the Plaintiffs and

14 Claimants who have submitted Approved Claims, stating that it is the determination of

15 the Court, pursuant to the stipulation of the Oakland defendants (the arresting agency),

16 that the Plaintiffs and Claimants are factually innocent of the charges for which they were

17 arrested and that they are thereby exonerated. Thereafter, the arrest shall be deemed not

18 to have occurred and the person may answer accordingly any question relating to its

19 occurrence. (See, California Penal Code section 851.8, subd. (f).)

20

d. Destruction of records of arrest pursuant to the Court's order shall be

21 accomplished by permanent obliteration of all entries or notations upon the records

22 pertaining to the arrest, and the record shall be prepared again so that it appears that the

23 arrest never occurred. However, where the only entries on the record pertain to the arrest

24 and the record can be destroyed without necessarily affecting the destruction of other

25 records, the document constituting the record shall be physically destroyed. (See, Penal

26 Code section 851.8, subd. (j).)

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 6
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page7 of 14

1

e. Defendants will provide a copy of the Court order to the California Department

2 of Justice, along with a list of all Class Members and advise said agency of the fact that

3 the records of their November 5, 2010 arrests have been rendered obsolete on the basis of

4 a finding of factual innocence pursuant to Penal Code 851.8.

5

2. Coles / Local 10 Settlement and Crowd Control Policy

6

The Oakland Defendants will continue to abide by the terms of the Coles / Local

7 10 (C03-2961 and 2962 TEH) settlement stipulation and order dated December 24, 2004,

8 which is attached as Exhibit A and incorporated by reference herein.

9

The parties agree that the meet and confer requirement specified in the Coles /

10 Local 10 settlement stipulation and order at page 5, line 28, through page 6, line 9, will be

11 satisfied if: Before making any material change to the Crowd Control Policy (as set forth

12 in Exhibit A) or the associated Training Bulletin (OPD TB III-G, issued 28 Oct. 2005), or

13 to associated training outlines, the Oakland Police Department and its counsel will meet

14 and confer with representatives of the National Lawyers Guild - SF Bay Area Chapter,

15 and the ACLU of Northern California, in a good faith effort to reach agreement on such

16 changes.

17

All participants will bear their own attorney's fees and costs related to any such

18 meet and confer process.

19

3. Citation and Release Policy - OPD

20

The Oakland Police Department will adopt the following policy regarding Citation

21 and Release of misdemeanor arrestees in instances of multiple simultaneous arrest, and

22 Paragraph VIII of OPD Training Bulletin III-G, Crowd Control, shall be amended

23 accordingly, as follows:

24

A. The OPD will comply with Penal Code section 853.6, and with Department

25 General Order M-7, "Citations for Adult Misdemeanors", III, A-N, by citing and releasing

26 individuals who qualify for such under the Penal Code.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 7
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page8 of 14

1

B. When it is impractical to cite arrestees at or near the site of the demonstration

2 because of a substantial risk that this procedure would allow the unlawful activity to

3 continue or because of specific geographic factors, OPD may cite and release arrestees

4 from temporary processing stations or police facilities as near the site of the arrest as

5 possible. While detained during the citation and release process, arrestees shall have

6 reasonable access to toilet facilities and to appropriate medical attention.

7

C. No fingerprinting will be done as part of the citation and release process.

8 Arrestees may be instructed to appear for booking prior to or after arraignment.

9 Commanders shall exercise discretion as to whether property searches are necessary.

10 Property of persons who qualify for citation and release will not be confiscated unless it is

11 found to contain contraband. The intention of this policy is to release citation-eligible

12 arrestees as promptly as possible, and to obviate the need to transfer such arrestees to the

13 Sheriff's custody. Persons for whom a valid warrant is confirmed, or who do not produce

14 valid identification or who are otherwise found ineligible for citation will be transferred

15 to the Sheriff's custody.

16

D. An officer seeking to book a misdemeanor arrestee into jail must have an

17 articulable basis to believe that one of the specified statutory exceptions to mandatory cite

18 and release applies to that individual. This basis must be documented in the police report.

19

E. The mere fact that further demonstrations are likely to be held in the near future

20 is not a proper basis to apply subdivision (7) of P.C. 853.6 ("reasonable likelihood that the

21 offense may continue or resume") to individual demonstrators.

22

F. There must be an articulable objective basis to believe that, if cited out, those

23 specific indi-viduals would continue the same illegal activity for which they were

24 arrested.

25

G. Individuals may not be booked into jail on the sole basis of a felony charge

26 consisting of conspiracy to commit a misdemeanor.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 8
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page9 of 14

1.

4. Citation and Release Policy - Alameda County

2

The Alameda County Sheriff’s Office will adopt a new policy and procedure to

3 expedite the citation and release of citation-eligible persons who are transferred to the

4 Sheriff’s custody as the result of mass arrest, as defined in the new policy, Detention and

5 Corrections Policy and Procedure No. 11.65, attached hereto as Exhibit B and

6 incorporated herein by this reference. The new policy and procedure is specifically

7 intended to ensure the prompt release of those mass arrestees who are eligible for citation

8 and release under Penal Code section 853.6, and to protect their health and comfort

9 during the time they are temporarily detained.

10

As such, mass arrestees will have access to toilet facilities at all times, except

11 while actually in transit from the arrest site to the jail. Handcuffs will be checked before

12 arrestees are transported to the jail and arrestees will not be accepted for transport unless

13 a Deputy has verified that the handcuffs are properly applied and not likely to cause injury

14 or undue discomfort. Handcuffs will be removed at the jail facility as soon as it is safe to

15 do so without jeopardizing safety and security. Each vehicle used to transport mass

16 arrestees to jail shall be equipped with a flexcuff cutter to be used in the case of an

17 emergency. Mass arrestees who are eligible for citation and release and who provide a

18 valid California driver’s license or identification card will not be fingerprinted prior to

19 citation and release.

20

D. Preliminary Approval

21

As soon as possible, and in no event more than five days, after execution of this

22 Stipulation, the Parties shall jointly submit the Stipulation together with its Exhibits to

23 the Court and shall jointly apply for entry of a Preliminary Approval Order substantially

24 in the form set forth in Exhibit C, requesting, inter alia, the preliminary approval of the

25 Settlement set forth in this Stipulation, and approval/ dissemination of Class Notice of the

26 Settlement and the proposed Claim Form.

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 9
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page10 of 14

1

E. Class Notice of the Settlement and Claim Form

2

After Notice of Settlement Agreement, the Class Members shall have 21 days to

3 file a Claim Form, or to object to the Settlement Agreement following the procedure set

4 forth in the Notice.

5

F. Final Approval

6

A Final Approval Hearing shall be set no less than 30 days after the Court

7 issues its Preliminary Approval Order. The parties jointly request that, at the Final

8 Approval Hearing, the Court approve the settlement of the Litigation and enter Judgment

9 in a form substantially similar to that attached hereto as Exhibit D.

10

G. Releases and Bar Order

11

1. Upon the Effective Date, as defined above, the Parties shall be

12 deemed to have, and shall have, fully, finally, and forever waived, released, relinquished,

13 discharged, and dismissed all claims arising from the events alleged in Plaintiffs’

14 Complaint.

15

2. Upon the Effective Date, the Plaintiffs and Class Members shall be forever

16 barred and enjoined from commencing, instituting, prosecuting or continuing to prosecute

17 any action or other proceeding in any court oflaw or equity, arbitration tribunal, or

18 administrative forum, asserting any claims arising from the events alleged in Plaintiffs’

19 Complaint.

20

3. Upon the Effective Date, each of the Defendants shall be deemed to

21 have, and by operation of the Judgment shall have, fully, finally, and forever released,

22 relinquished, and discharged Plaintiffs and Plaintiffs' Counsel from all claims (including

23 Unknown Claims) arising out of, relating to, or in connection with the institution,

24 prosecution, assertion, settlement or resolution of the Litigation or the determination

25 regarding approval or disapproval of any claim submitted.

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 10
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page11 of 14

1

H. Waiver and Covenant Not to Sue

2

Upon the Effective Date, each of the Defendants shall be deemed to have, and

3 shall have, fully, finally, and forever waived, released, and relinquished any claim for

4 malicious prosecution in connection with the Litigation. Each such Defendant covenants

5 that he or she will not institute any claim, lawsuit, arbitration, or proceeding of any nature

6 against Plaintiffs, any Class Member, or Plaintiffs' Counsel for any act or omission in

7 connection with this Litigation.

8

I. Conditions of Settlement, Effect of Disapproval

9

This Settlement is subject to the following conditions:

10

1. This Settlement is subject to the approval of the Court as provided in

11 Federal Rule of Civil Procedure 23(e).

12

2. If the Stipulation is not approved by the Court, or otherwise fails to become

13 effective in accordance with its terms and provisions, the terms and provisions of this

14 Stipulation, with the exception of this section, shall have no further force and effect with

15 respect to the Parties and neither this Stipulation nor any submission by any party in

16 connection with the Motion(s) for Preliminary or Final Approval or Appeal therefrom, or

17 any related motions or proceedings, may be used in this Litigation or in any other

18 proceeding for any purpose, and any judgment or order entered by the Court in

19 accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc.

20

J. Miscellaneous Provisions

21

1. The Parties (a) acknowledge that it is their intent to consummate the Settlement

22 set forth in this Stipulation, and (b) agree to cooperate to the extent reasonably necessary

23 to effectuate and implement all terms and conditions of the Stipulation and to exercise

24 their best efforts to accomplish and effectuate the terms and conditions of the Stipulation.

25

2. The Parties intend this settlement to be a final and complete resolution of all

26 disputes between them with respect to the Litigation. The settlement compromises claims

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 11
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page12 of 14

1 which are contested and shall not be deemed an admission by any Party as to the merits of

2 any claim or defense. The Parties agree that the terms of the settlement were negotiated in

3 good faith by the Parties, and reflect a settlement that was reached voluntarily after

4 consultation with competent legal counsel and with the assistance of Judge Beeler.

5

3. All of the exhibits to this Stipulation are material and integral parts hereof and

6 are fully incorporated herein by this reference.

7

4. The Stipulation and the exhibits attached hereto constitute the entire agreement

8 among the parties hereto and no representations, warranties or inducements have been

9 made to any party concerning the Stipulation or its exhibits other than the representations,

10 warranties, and covenants contained and memorialized in such documents.

11

5. This Stipulation may be amended or modified only by a written instrument

12 signed by or on behalf of all Parties. Lead Counsel for Plaintiffs, on behalf of the Class, is

13 expressly authorized by the Plaintiffs to take all appropriate action required or permitted

14 to be taken by the Class pursuant to the Stipulation to effectuate its terms and also is

15 expressly authorized to enter into any modifications or amendments to the Stipulation on

16 behalf of the Class which she deems appropriate.

17

6. Each attorney or other person executing the Stipulation or any of its exhibits on

18 behalf of any Party hereto hereby warrants that such person has the full authority to do

19 so.

20

7. The Stipulation shall be binding upon, and inure to the benefit of, the successors

21 and assigns of the Parties hereto.

22

8. The Court shall retain jurisdiction of this matter after these claims are dismissed

23 to enforce the terms of this Settlement Agreement for four years from the Effective Date,

24 with the proviso that within that four year time period if there is a material breach of the

25 terms of this Settlement Agreement any Party may move the court to extend the time for

26 up to an additional three years. The Parties further request that the Court appoint

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 12
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page13 of 14

1 Magistrate Judge Laurel Beeler for resolution of any disputes, to facilitate the meet and

2 confer process referenced in paragraph III.C.2, and to issue all appropriate orders

3 concerning this Settlement Agreement and the implementation and enforcement thereof.

4

9. This Settlement Agreement was drafted with substantial review and input by all

5 Parties and their counsel, and no reliance was placed on any representations other than

6 those contained herein. The Parties agree that this Settlement Agreement shall be

7 construed by its own terms, and not by referring to, or considering, the terms of any other

8 settlement, and not by any presumption against the drafter.

9

NOW, THEREFORE, the foregoing terms are hereby STIPULATED AND

10 AGREED, by and among the Parties, subject to approval of the Court pursuant to Rule

11 23(e) of the Federal Rules of Civil Procedure.

12

13 DATED: May 16, 2013 14

BOORNAZIAN, JENSEN & GARTHE A Professional Corporation

15

By: /S/__________________________

16

GREGORY J. ROCKWELL, ESQ.

Attorneys for Defendants

17

COUNTY OF ALAMEDA and GREGORY AHERN

18 DATED: May 16, 2013
19

BARBARA J. PARKER, CITY ATTORNEY, CITY OF OAKLAND

20

21

By: /S/___________________________

22

RANDOLPH W. HALL

Attorneys for Defendants

23

CITY OF OAKLAND, et al.

24 DATED: May 16, 2013
25
26

RACHEL LEDERMAN CAROL SOBEL BOBBIE STEIN R. MICHAEL FLYNN

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 13
28

Case3:11-cv-05498-JST Document86-1 Filed07/18/13 Page14 of 14

1

MARA VERHEYDEN-HILLIARD

CARL MESSINEO

2

PARTNERSHIP FOR CIVIL JUSTICE FUND

3

4

By: /S/___________________________

5

RACHEL LEDERMAN

Attorneys for Plaintiffs and the Class

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 SETTLEMENT AGREEMENT, CASE NO. C11-02867 TEH p. 14
28

 
 Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 1 of 12
ADRMOP,CLOSED,REFSET−LB
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:11−cv−05498−JST

Campbell et al v. City of Oakland et al Assigned to: Judge Jon S. Tigar Referred to: Magistrate Judge Laurel Beeler (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/14/2011 Date Terminated: 07/25/2013 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Timothy Scott Campbell

represented by Bobbie Fay Stein 503 Dolores Street, #201 San Francisco, CA 94110−1564 415−255−0301 Fax: 510−601−5780 Email: bstein8692@aol.com ATTORNEY TO BE NOTICED

Carol A. Sobel Law Office of Carol A. Sobel 429 Santa Monica Blvd., #550 Santa Monica, CA 90401−3439 (310) 393−3055 ATTORNEY TO BE NOTICED

James B. Chanin Law Offices of James B. Chanin 3050 Shattuck Avenue Berkeley, CA 94705 510−848−4752 Fax: 510−848−5819 Email: jbcefiling@aol.com ATTORNEY TO BE NOTICED

Julie M. Houk Lawyers' Committee for Civil Rights Under Law Voting Rights Project 1401 New York Avenue NW Suite 400 Washington, DC 20005 202−662−8391 Fax: 202−783−0857 Email: jhouk@lawyerscommittee.org ATTORNEY TO BE NOTICED

Rachel Lederman Law Offices of Rachel Lederman & Alexsis C. Beach 558 Capp Street San Francisco, CA 94110 415 282 9300 Fax: (415) 285−5066 Email: rachel@beachledermanlaw.com ATTORNEY TO BE NOTICED

Robert Michael Flynn Flynn Law Office 1736 Franklin Street Suite 400 Oakland, CA 94612

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 2 of 12

510−893−3226 Fax: 866−728−7879 Email: michael@flo−law.com ATTORNEY TO BE NOTICED

Plaintiff Kerie Campbell

represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−1478 Email: aschlosser@aclunc.org ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: llye@aclunc.org ATTORNEY TO BE NOTICED

Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org ATTORNEY TO BE NOTICED

Plaintiff Marcus Kryshka

represented by Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

James B. Chanin (See above for address) ATTORNEY TO BE NOTICED

Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 3 of 12

Plaintiff Marc McKinnie
Plaintiff Michael Siegel
Plaintiff American Civil Liberties Union of Northern California

represented by Bobbie Fay Stein (See above for address) ATTORNEY TO BE NOTICED
Carol A. Sobel (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
Robert Michael Flynn (See above for address) ATTORNEY TO BE NOTICED
represented by Bobbie Fay Stein (See above for address) ATTORNEY TO BE NOTICED
Carol A. Sobel (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED
Rachel Lederman (See above for address) ATTORNEY TO BE NOTICED
Robert Michael Flynn (See above for address) ATTORNEY TO BE NOTICED
represented by Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED
James B. Chanin (See above for address) ATTORNEY TO BE NOTICED
Julie M. Houk (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 4 of 12

Linda Lye (See above for address) ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City of Oakland
Defendant

represented by William Edmond Simmons Simmons Mediation 1300 Clay St Ste 600 Oakland, CA 94612−1427 (925) 765−2120 Fax: (925) 765−2120 Email: bill@simmonsadr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara J. Parker Oakland City Attorney's Office One Frank H. Ogawa Plaza, 6th Fl. Oakland, CA 94612−1999 (510)238−3815 Email: bjparker@oaklandcityattorney.org ATTORNEY TO BE NOTICED
Gregory Mellon Fox Bertrand, Fox, Elliot, Osman & Wenzel The Waterfront Building 2749 Hyde Street San Francisco, CA 94109 (415) 353−0999 Fax: (415) 353−0990 Email: gfox@bfesf.com ATTORNEY TO BE NOTICED
Randolph W. Hall City Attorney's Office City of Oakland One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 (510) 238−7686 Fax: (510) 238−6500 Email: rwhall@oaklandcityattorney.org ATTORNEY TO BE NOTICED
Rocio V. Fierro Office of the City Attorney City of Oakland One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 (510) 238−7686 Fax: (510) 238−6500 Email: rvfierro@oaklandcityattorney.org ATTORNEY TO BE NOTICED
represented by

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 5 of 12

Howard Jordan Interim Chief of Police

William Edmond Simmons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J. Parker (See above for address) ATTORNEY TO BE NOTICED

Gregory Mellon Fox (See above for address) ATTORNEY TO BE NOTICED

Randolph W. Hall (See above for address) ATTORNEY TO BE NOTICED

Rocio V. Fierro (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/14/2011
11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011

# Docket Text
1 COMPLAINT for Damages & Injunctive and Declaratory Relief; Demand for Jury Trial against City of Oakland, Howard Jordan (Filing fee $ 350.00, receipt number 34611066926). Filed by Michael Siegel, American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marc McKinnie, Marcus Kryshka. (Attachments: # 1 Civil Cover Sheet) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
2 EXPARTE Application for Temporary Restraining Order and Order to Show Cause filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Attachments: # 1 Proposed Order) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
3 MEMORANDUM of Points and Authorities in Support of 2 Exparte Application for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
4 Declaration of Alan Schlosser in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
5 Declaration of Marcus Kryshka in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
6 Declaration of Michael Siegel in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
7 Declaration of Scott Whitacre in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 6 of 12

11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011 11/14/2011

8 Declaration of Timothy Scott Campbell in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
9 Declaration of Dan Roth in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
10 Declaration of Eric Post in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
11 Declaration of Kerie Campbell in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
12 Declaration of Michael Chase in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
13 Declaration of Askash Desai in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
14 Declaration of Morgan Rees in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
15 Declaration of Heather Freinkel in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
16 Declaration of Marc McKinnie in Support of 2 MOTION for Temporary Restraining Order filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 2 ) (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
17 NOTICE of Disclosure Statement by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
18 Declination to Proceed Before a U.S. Magistrate Judge by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
19 Summons Issued as to City of Oakland, Howard Jordan. (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
20 ADR SCHEDULING ORDER: Case Management Statement due by 2/16/2012. Case Management Conference set for 2/23/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 7 of 12

11/14/2011 11/15/2011 11/15/2011 11/15/2011 11/16/2011 11/18/2011
11/18/2011 11/18/2011 11/18/2011 11/18/2011 11/18/2011 11/18/2011 11/18/2011

21 ORDER Re Ex Parte Application for Temporary Restraining Order. Signed by Judge Richard Seeborg on 11/14/2011. (gba, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)
22 CERTIFICATE OF SERVICE by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel to Oakland Police Department (Lye, Linda) (Filed on 11/15/2011) (Entered: 11/15/2011)
23 CERTIFICATE OF SERVICE by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel to City of Oakland (Lye, Linda) (Filed on 11/15/2011) (Entered: 11/15/2011)
24 RESPONSE (re 2 MOTION for Temporary Restraining Order ) filed byCity of Oakland, Howard Jordan. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Certificate/Proof of Service)(Fox, Gregory) (Filed on 11/15/2011) (Entered: 11/15/2011)
25 ORDER DENYING PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER. Preliminary Injunction Hearing set for 11/30/2011 01:30 PM. Signed by Judge Richard Seeborg on 11/16/11. (cl, COURT STAFF) (Filed on 11/16/2011) (Entered: 11/16/2011)
26 Supplemental MOTION for Preliminary Injunction filed by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. Motion Hearing set for 11/30/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 11/23/2011. Replies due by 11/29/2011. (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
27 Declaration of Susan Cagle in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
28 Declaration of Aakash Desai (Supplemental) filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
29 Declaration of Sukay Sow in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
30 Declaration of Bill Lo in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
31 Declaration of Tim S. Campbell in Support of 26 Supplemental MOTION for Preliminary Injunction (Supplemental Declaration) filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
32 Declaration of Marc McKinnie in Support of 26 Supplemental MOTION for Preliminary Injunction (Supplemental Declaration) filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
33 Declaration of Sam Kesten in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 8 of 12

11/18/2011 11/18/2011 11/18/2011 11/18/2011 11/18/2011 11/23/2011 11/23/2011 11/23/2011 11/29/2011 11/29/2011 11/29/2011

Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
34 Declaration of Jonathan Harris in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
35 Declaration of James B. Chanin in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
36 Declaration of Max Stiers in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
37 Declaration of Rebecca Yzaguirre in Support of 26 Supplemental MOTION for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
38 Declaration of Kerie Campbell in Support of 26 Supplemental MOTION for Preliminary Injunction (Supplemental Declaration) filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 26 ) (Lye, Linda) (Filed on 11/18/2011) (Entered: 11/18/2011)
39 ORDER denying motion to relate cases. This case is not related to Case Nos. C00−4599 TEH, C03−2961 TEH, C03−2962 TEH, or C11−2867 TEH. Signed by Judge Thelton E. Henderson on 11/23/11. (tehlc3, COURT STAFF) (Filed on 11/23/2011) (Entered: 11/23/2011)
40 RESPONSE (re 26 Supplemental MOTION for Preliminary Injunction ) CITY OF OAKLANDS OPPOSITION TO PLAINTIFFS SUPPLEMENTAL NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION filed byCity of Oakland, Howard Jordan. (Hall, Randolph) (Filed on 11/23/2011) (Entered: 11/23/2011)
41 Declaration of ANTHONY TORIBIO in Support of 40 Opposition/Response to Motion, DECLARATION OF INTERIM DEPUTY CHIEF OF POLICE ANTHONY TORIBIO IN SUPPORT OF CITY OF OAKLAND'S OPPOSITION TO PLAINTIFFS APPLICATION FOR PRELIMINARY INJUCTION filed byCity of Oakland, Howard Jordan. (Related document(s) 40 ) (Hall, Randolph) (Filed on 11/23/2011) (Entered: 11/23/2011)
42 REPLY (re 26 Supplemental MOTION for Preliminary Injunction ) filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Lye, Linda) (Filed on 11/29/2011) (Entered: 11/29/2011)
43 Declaration of Nishan Bhaumik in Support of 42 Reply to Opposition/Response to Supplemental Motion for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 42 ) (Lye, Linda) (Filed on 11/29/2011) (Entered: 11/29/2011)
44 Declaration of Kerie Campbell in Support of 42 Reply to Opposition/Response to Supplemental Motion for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Related document(s) 42 ) (Lye, Linda)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 9 of 12

11/29/2011 11/30/2011
12/06/2011 12/12/2011 02/01/2012 02/01/2012 02/03/2012 02/03/2012 02/03/2012 02/03/2012 02/16/2012
02/16/2012 02/16/2012 02/23/2012 02/24/2012
02/24/2012 02/27/2012

(Filed on 11/29/2011) (Entered: 11/29/2011)
45 Proposed Order re Preliminary Injunction by American Civil Liberties Union of Northern California, Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel. (Lye, Linda) (Filed on 11/29/2011) (Entered: 11/29/2011)
46 Minute Entry: Motion Hearing held on 11/30/2011 before Judge Richard Seeborg (Date Filed: 11/30/2011) re 26 Supplemental MOTION for Preliminary Injunction filed by Kerie Campbell, Timothy Scott Campbell, Marcus Kryshka, Marc McKinnie, Michael Siegel, American Civil Liberties Union of Northern California. (Court Reporter Sahar Bartlett.) (cl, COURT STAFF) (Date Filed: 11/30/2011) (Entered: 11/30/2011)
47 DEFENDANTS' ANSWER to Complaint with Jury Demand byCity of Oakland, Howard Jordan. (Simmons, William) (Filed on 12/6/2011) (Entered: 12/06/2011)
48 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 12/12/2011) (Entered: 12/12/2011)
49 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Simmons, William) (Filed on 2/1/2012) (Entered: 02/01/2012)
50 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Simmons, William) (Filed on 2/1/2012) (Entered: 02/01/2012)
51 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Plfs T.S. Campbell, McKinnie, Siegel) (Lederman, Rachel) (Filed on 2/3/2012) (Entered: 02/03/2012)
52 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options for Kerie Campbell (Lye, Linda) (Filed on 2/3/2012) (Entered: 02/03/2012)
53 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options for Ajay Krishnan, vice−chair for plaintiff ACLU of Northern California (Lye, Linda) (Filed on 2/3/2012) (Entered: 02/03/2012)
54 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options for Marcus Kryshka (Lye, Linda) (Filed on 2/3/2012) (Entered: 02/03/2012)
55 *** FILED IN ERROR. REFER TO DOCUMENT 56 . *** JOINT CASE MANAGEMENT STATEMENT filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 2/16/2012) Modified on 2/16/2012 (feriab, COURT STAFF). (Entered: 02/16/2012)
56 JOINT CASE MANAGEMENT STATEMENT Corrected copy filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 2/16/2012) (Entered: 02/16/2012)
57 JOINT CASE MANAGEMENT STATEMENT Corrected copy filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 2/16/2012) (Entered: 02/16/2012)
58 Minute Entry: Initial Case Management Conference held on 2/23/2012 before Judge Richard Seeborg (Date Filed: 2/23/2012). (Court Reporter Not Reported.) (cl, COURT STAFF) (Date Filed: 2/23/2012) (Entered: 02/23/2012)
59 CASE MANAGEMENT SCHEDULING ORDER. ORDER REFERRING CASE to Magistrate Judge Beeler for Settlement. Pretrial Conference set for 5/16/2013 10:00 AM; Jury Selection set for 5/28/2013 09:00 AM; Jury Trial set for 5/28/2013 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 2/24/12. (cl, COURT STAFF) (Filed on 2/24/2012) (Entered: 02/24/2012)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahm, COURT STAFF) (Filed on 2/24/2012) (Entered: 02/24/2012)
60 NOTICE AND ORDER REGARDING SETTLEMENT CONFERENCE before Magistrate Judge Laurel Beeler. Settlement Conference set for 6/1/2012 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 2/27/2012. (ls, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/28/2012)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 10 of 12

05/21/2012 05/23/2012
05/24/2012 06/08/2012 06/11/2012 07/24/2012 07/25/2012 09/18/2012 09/18/2012 09/27/2012 09/28/2012
11/02/2012
11/08/2012 11/26/2012 11/28/2012

61 Request to Reschedule Settlement Conference re 60 Order Setting Settlement Conference, filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 5/21/2012) Modified on 5/23/2012 (gba, COURT STAFF). (Entered: 05/21/2012)
62 ORDER RESETTING SETTLEMENT CONFERENCE: re 61 Stipulation filed by Timothy Scott Campbell. Settlement Conference reset to 9/18/2012 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. The previous set date of June 1, 2012 at 9:30 a.m. is VACATED. Signed by Magistrate Judge Laurel Beeler on 5/23/2012. (ls, COURT STAFF) (Filed on 5/23/2012) (Entered: 05/24/2012)
Set/Reset Hearing Settlement Conference set for 9/18/2012 09:30 AM in Courtroom C, 15th Floor, San Francisco. (ls, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)
63 STIPULATION WITH PROPOSED ORDER re 59 Order, Order Referring Case to Magistrate Judge for Settlement, Set Hearings,,, REQUEST FOR ORDER EXTENDING DATE FOR AMENDMENT OF PLEADINGS filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 6/8/2012) (Entered: 06/08/2012)
64 STIPULATION AND ORDER RE 63 FOR AN ORDER EXTENDING DATE FOR AMENDMENT OF PLEADINGS. Signed by Judge Richard Seeborg on 6/11/12. (cl, COURT STAFF) (Filed on 6/11/2012) (Entered: 06/11/2012)
65 STIPULATION WITH PROPOSED ORDER EXTENDING DATE FOR AMENDMENT OF PLEADINGS filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 7/24/2012) (Entered: 07/24/2012)
66 STIPULATION AND ORDER RE 65 FOR AN ORDER EXTENDING DATE FOR AMENDMENT OF PLEADINGS. Signed by Judge Richard Seeborg on 7/25/12. (cl, COURT STAFF) (Filed on 7/25/2012) (Entered: 07/25/2012)
67 Minute Entry: Settlement Conference held. (Date Filed: 9/18/2012) Further Settlement Conference set for 11/13/2012 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. (lsS, COURT STAFF) (Date Filed: 9/18/2012) (Entered: 09/18/2012)
68 ORDER REGARDING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Laurel Beeler on 9/18/2012. (lsS, COURT STAFF) (Filed on 9/18/2012) (Entered: 09/18/2012)
69 STIPULATION WITH PROPOSED ORDER Request for New Scheduling Order filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 9/27/2012) (Entered: 09/27/2012)
70 STIPULATION AND ORDER RE 69 FOR NEW SCHEDULING ORDER. Pretrial Conference set for 2/10/2014 10:00 AM; Jury Selection set for 2/24/2014 09:00 AM; Jury Trial set for 2/24/2014 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 9/28/12. (cl, COURT STAFF) (Filed on 9/28/2012) (Entered: 09/28/2012)
CLERKS NOTICE RESETTING THE TIME FOR THE SETTLEMENT CONFERENCE: Settlement Conference reset to 11/13/2012 at 10:30 A..M in Courtroom C, 15th Floor, San Francisco. An updated Settlement Conference Statement due 11/9/2012 at 4:00 p.m. to be submitted to the court's orders box: lbpo@cand.uscourts.gov. (This is a docket text entry only. There is no document associated with this entry). (ls, COURT STAFF) (Filed on 11/2/2012) (Entered: 11/02/2012)
71 ORDER. Settlement Conference set for 12/19/2012 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 11/8/2012. (ls, COURT STAFF) (Filed on 11/8/2012) (Entered: 11/09/2012)
72 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Protective Order filed by City of Oakland, Howard Jordan. (Simmons, William) (Filed on 11/26/2012) (Entered: 11/26/2012)
73 STIPULATED PROTECTIVE ORDER. Signed by Judge Richard Seeborg on 11/28/12. (cl, COURT STAFF) (Filed on 11/28/2012) (Entered: 11/28/2012)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 11 of 12

12/10/2012 12/21/2012
02/11/2013 02/25/2013 03/05/2013 03/15/2013 03/18/2013 03/20/2013 03/26/2013
03/26/2013 06/25/2013 06/27/2013

CLERKS NOTICE VACATING SETTLEMENT CONFERENCE on December 19, 2012 at 9:30 a.m. Counsel to contact the courtroom deputy, Lashanda Scott to schedule a settlement conference in January/February 2013. (This is a docket text entry only. There is no document associated with this entry.) (ls, COURT STAFF) (Filed on 12/10/2012) (Entered: 12/10/2012)
CLERKS NOTICE SETTING A FURTHER Settlement Conference for 3/5/2013 at 9:30 AM before Magistrate Judge Laurel Beeler in Courtroom C, 15th Floor, San Francisco. "Updated Settlement Conference Statements" with only new information due by February 22, 2013 at 4 p.m. and can be emailed to the court's orders box at lbpo@cand.uscourts.gov. (This is a docket text entry only. There are no documents associated with this entry.) (ls, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/21/2012)
74 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Jon S. Tigar for all further proceedings. Judge Hon. Richard Seeborg no longer assigned to the case. Signed by The Executive Committee on 2/11/13. (gba, COURT STAFF) (Filed on 2/11/2013) (Entered: 02/12/2013)
75 JOINT CASE MANAGEMENT STATEMENT filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 2/25/2013) (Entered: 02/25/2013)
76 Minute Entry: Further Settlement Conference held. (Date Filed: 3/5/2013) Telephonic Settlement Conference set for 3/7/2013 at 3:00 PM. Further Settlement Conference set for 3/18/2013 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. (ls, COURT STAFF) (Date Filed: 3/5/2013) (Entered: 03/06/2013)
77 CLERKS NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 4/9/2013. Initial Case Management Conference set for 4/16/2013 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Standing Order, # 2 Standing Order for All Judges of the Northern District) (wsn, COURT STAFF) (Filed on 3/15/2013) (Entered: 03/15/2013)
79 Minute Entry: Further Settlement Conference held. Tentative settlement reached. (Date Filed: 3/18/2013). (ls, COURT STAFF) (Date Filed: 3/18/2013) (Entered: 03/21/2013)
78 STIPULATION WITH [PROPOSED] ORDER EXTENDING THE DEADLINE TO AMEND THE PLEADINGS AND RESCHEDULING CMC; TOLLING AGREEMENT; [PROPOSED] ORDER filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 3/20/2013) (Entered: 03/20/2013)
80 Order by Hon. Jon S. Tigar granting 78 Stipulation. The parties' stipulated request to extend case−related deadlines due to the tentative settlement reached before Judge Beeler is hereby granted as follows: the deadline to amend the pleadings is extended to July 1, 2013; and the case management conference scheduled for April 16, 2013, is continued to July 10, 2013, at 2:00p.m. in Courtroom 9, 19th Floor, 450 Golden Gate Ave., San Francisco, CA 94102.(jstlc1, COURT STAFF) (This is a text only docket entry.) (Filed on 3/26/2013) (Entered: 03/26/2013)
Set Deadlines/Hearings: Amended Pleadings due by 7/1/2013. Case Management Statement due by 7/2/2013. Initial Case Management Conference set for 7/10/2013 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 3/26/2013) (Entered: 03/26/2013)
81 STIPULATION WITH [PROPOSED] ORDER re 80 Order on Stipulation; Stipulated Request for an Order Rescheduling CMC; Extending Deadline to Amend & Tolling Agreement; [Proposed] Order filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 6/25/2013) (Entered: 06/25/2013)
82 Order by Hon. Jon S. Tigar granting re 81 Stipulation.

The July 10, 2013 Case Management Conference is continued to July 24, 2013, at 2:00 p.m. The deadline to amend the pleadings is extended to September 1, 2013. A clerks' notice will follow.

(jstlc1, COURT STAFF) (This is a text only entry.) (Filed on 6/27/2013) (Entered: 06/27/2013)

Case: 3:11-cv-5498 As of: 11/09/2017 10:11 AM PST 12 of 12

06/27/2013
07/10/2013 07/18/2013

83 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Initial Case Management Conference previously set for 7/10/2013 is CONTINUED to 7/24/2013 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. Joint Case Management Statement due by 7/10/2013. The deadline to Amended Pleadings is extended to 9/1/2013. This is a text only entry. There is no document associated with this notice. (wsn, COURT STAFF) (Filed on 6/27/2013) (Entered: 06/27/2013)
84 JOINT CASE MANAGEMENT STATEMENT filed by Timothy Scott Campbell. (Lederman, Rachel) (Filed on 7/10/2013) (Entered: 07/10/2013)
85 ORDER

Given the parties' settlement, the Case Management Conference scheduled for July 24, 2013 is hereby continued to August 21, 2013. Case Management Statement or stipulation of dismissal due by 8/14/2013.

07/18/2013 07/18/2013 07/25/2013

Case Management Conference set for 8/21/2013 02:00 PM in Courtroom 9, 19th Floor, San Francisco.. Signed by Judge Tigar on 7/18/13. (jstlc1S, COURT STAFF) (This is a text only entry.) (Filed on 7/18/2013) (Entered: 07/18/2013)
86 STIPULATION WITH [PROPOSED] ORDER for Entry of FINAL ORDER OF DISMISSAL AND FOR SEALING AND DESTRUCTION OF ARREST RECORDS, Pursuant to Settlement filed by Timothy Scott Campbell. (Attachments: #(1) Exhibit Exhibit 1, Spalding Settlement Agreement, #(2) [Proposed] Order) (Lederman, Rachel) (Filed on 7/18/2013) (Entered: 07/18/2013)
87 EXHIBITS to re 86 STIPULATION WITH [PROPOSED] ORDER for Entry of FINAL ORDER OF DISMISSAL AND FOR SEALING AND DESTRUCTION OF ARREST RECORDS; Exhibit A to Attachment 1, Spalding Settlement Agreement (Crowd Control Policy) filed byTimothy Scott Campbell. (Related document(s) 86 ) (Lederman, Rachel) (Filed on 7/18/2013) (Entered: 07/18/2013)
88 FINAL ORDER OF DISMISSAL AND FOR SEALING AND DESTRUCTION OF ARREST RECORDS re 86 STIPULATION WITH PROPOSED ORDER filed by Timothy Scott Campbell. Signed by Judge Jon S. Tigar on July 25, 2013. (wsn, COURT STAFF) (Filed on 7/25/2013) (Entered: 07/25/2013)