judge allows lawsuit against university of california berkeley chief of police to proceed

In the fall of 2009, protests erupted on the UC Berkeley campus related to state budget cuts. Three of the protests occurred at Wheeler Hall, one of the largest classroom buildings on campus. The first of the three protests was on September 24, 2009, when a group of protesters briefly occupied the building after a rally and march.

The second protest at Wheeler Hall was on November 20, 2009, when a group occupied and barricaded the building. Approximately 2,000 people gathered outside. Confrontations with police ensued, resulting in injuries and at least 40 arrests.

The third protest at Wheeler Hall was on a Monday, December 7, 2009, when a group of protesters occupied the building and announced that they intended to occupy it for the entire week. The next day, a UC police officer told one of the protesters that the University was prepared to informally allow the occupation as long as the protesters exited the building before final exams that Saturday morning. Yet when Wheeler Hall closed every evening, UC officers continued to tell protesters that if they remained in the building, they were subject to University disciplinary proceedings and criminal charges.

The protesters scheduled a hip-hop show inside Wheeler Hall, featuring Boots Riley of the Coup, for the Friday night before final exams. A flyer said the party would last “until the cops kick in the doors.” University officials asked the protesters to change their plans, but the protesters declined.

At approximately 4:35 a.m. that Friday, UC officers entered Wheeler Hall and arrested 65 people. Roughly 12 of the arrestees, who had previously been arrested in the past month for occupying campus buildings, were taken directly to jail. Although the officers planned to cite and release the remaining arrestees inside Wheeler Hall, most of them were also taken to jail, where they were cited and released. (Full disclosure: I represented one of the arrestees after he re-entered the campus with a protest sign two days later, despite having received a notice of exclusion ordering him to stay away. The prosecutor dismissed the case.)

The arrested protesters sued, arguing that the University never informed them that they no longer had permission to remain in Wheeler Hall. Last week U.S. Magistrate Judge Laurel Beeler disagreed, but she allowed the case to proceed on another issue the protesters raised: whether sending them to jail instead of citing and releasing them inside Wheeler Hall was in retaliation for, or to chill, their exercise of First Amendment rights. Judge Beeler emphasized that in response to activists’ plans for a noon rally at Cal Hall regarding the arrests, the UC Berkeley Chief of Police said the following in an email to the campus crisis management team:

The good news is that the arrested protestors are still at Santa Rita getting booked so they won’t be able to participate in the rally.

Officers can’t book people in retaliation for First Amendment activity. Judge Beeler’s decision means the case will continue moving toward trial.