1 RONALD CRUZ, State Bar No. 267038 Scheff, Washington & Driver, P.C. 2 1985 Linden St. Oakland, CA 94607 3 (510) 384-8859 [email protected]
4 SHANTA DRIVER, Michigan Bar No. P65007* SCHEFF, WASHINGTON & DRIVER, P.C. 5 645 Griswold St., Suite 1817 Detroit, MI 48226 6 Phone: 313-963-1921 Fax: 313-963-7587 [email protected] 7 *Admitted pro hac vice
8 Attorneys for Plaintiffs
9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 YVETTE FELARCA, et al. CASE NO.: 4:11-cv-05719-YGR 11 Plaintiffs, NOTICE OF MOTION AND 12 MOTION FOR LEAVE TO vs. AMEND FIRST AMENDED 13 COMPLAINT ROBERT J. BIRGENEAU, et al., 14 Defendants. 15 ______
16 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
17 PLEASE TAKE NOTICE that the plaintiffs, via the motion set forth below, move
18 this Court to grant leave to plaintiffs to amend their First Amended Complaint to add claims
19 for which leave to amend has not yet been granted. The motion is based on the Court’s order
20 of February 25, 2013 and the Court’s file on this matter, and includes a proposed Second
21 Amended Complaint and a Proposed Order.
22 MOTION
23 The plaintiffs hereby request this Court to grant leave for the plaintiffs to amend
24 their First Amended Complaint (FAC), pursuant to the attached proposed Second Amended
NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 1
1 Complaint (Exhibit A). First, the proposed Second Amended Complaint amends the
2 plaintiffs’ First Amendment claims and their excessive-force Fourth Amendment claims, for
3 which leave already has been granted by this Court. Second, it would add the following:
4 (1) Add as defendant University of California Police Department (UCPD)
5 Lieutenant Eric Tejada, who issued the dispersal order and immediately ordered
6 the police actions during the evening police raid that led to excessive force and
7 the false arrests against plaintiffs Francisco Alvarado-Rosas, Julie Klinger,
8 Anthony Morreale, Sachinthya Wagaarachchi and Taro Yamaguchi-Phillips on
9 November 9, 2011;
10 (2) Add as defendant Lieutenant Marc DeCoulode, whom the plaintiffs since the
11 filing of the FAC have identified as one of the officers who committed excessive
12 force against plaintiff Taro Yamaguchi-Phillips; and
13 (3) Add a Count of false arrest in violation of the Fourth Amendment.
14 This Court, in its order entered on February 25, 2013, stated that the plaintiffs may
15 file a motion for leave to amend the FAC so as to include a Count of false arrest in violation
16 of the Fourth Amendment. The plaintiffs Alvarado-Rosas, Julie Klinger, Anthony Morreale,
17 Sachinthya Wagaarachchi and Taro Yamaguchi-Phillips have requested arrest reports from
18 UCPD to identify their arresting officers on November 9, 2011, and still have not received
19 this information. The proposed Second Amended Complaint makes specific allegations
20 about the actions of Eric Tejada and Marc DeCoulode and, in the case of Mr. Tejada,
21 sufficiently state a claim of false arrest.
22 The plaintiffs hereby request this Court to grant leave to amend the FAC to include
23 the three additions above in its Second Amended Complaint.
24
NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 2
1 By Plaintiffs’ Attorneys, SCHEFF, WASHINGTON & DRIVER, 2 P.C.
3 BY: _/s/ Ronald Cruz______4 Ronald Cruz (State Bar No. 267038) Shanta Driver (Michigan P-65007)* 5 645 Griswold, Suite 1817 Detroit, Michigan 48226 6 (510) 384-8859 (Ronald Cruz) (313) 585-3637 (Monica Smith) 7
8 Dated: March 25, 2013
9 *Admitted pro hac vice
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NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT 4:11-cv-05719-YGR 3
EXHIBIT A
1 RONALD CRUZ, State Bar No. 267038 Scheff, Washington & Driver, P.C. 2 1985 Linden St. Oakland, CA 94607 3 (510) 384-8859 [email protected]
4 SHANTA DRIVER, Michigan Bar No. P65007* SCHEFF, WASHINGTON & DRIVER, P.C. 5 645 Griswold St., Suite 1817 Detroit, MI 48226 6 Phone: 313-963-1921 Fax: 313-963-7587 [email protected] 7 *Admitted pro hac vice
8 Attorneys for Plaintiffs
9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 YVETTE FELARCA, FRANCISCO ALVARADO- CASE NO.: 4:11-cv-05719-YGR 11 ROSAS, CHRISTOPHER ANDERSON, JOSHUA ANDERSON, JAMES CHANG, HILLARY 12 CHESLER, HONEST CHUNG, MORGAN PROPOSED SECOND CRAWFORD, YANIA ESCOBAR, JOSEPH FINTON, AMENDED COMPLAINT FOR 13 HAYDEN HARRISON, LOUIS HELM, JACQUELYN VIOLATION OF CIVIL KINGKADE, JULIE KLINGER, BENJAMIN RIGHTS AND DAMAGES 14 LYNCH, MAXIMILIAN MCDONALD, ARIELLA MEGORY, ANTHONY MORREALE, LIANA 15 MULHOLLAND, ASHLEY PINKERTON, JESSICA JURY TRIAL DEMANDED SCHAFFER, COLLEEN MICA STUMPF, JUSTIN 16 TOMBOLESI, ERICK URIBE, SACHINTHYA WAGAARACHCHI, DAN WILBUR, TARO 17 YAMAGUCHI-PHILLIPS, COLLEEN YOUNG, MARGARET ZHOU 18 Plaintiffs, 19 vs. 20 ROBERT J. BIRGENEAU, Chancellor of the University 21 of California-Berkeley, in his individual capacity; GEORGE BRESLAUER, Executive Vice Chancellor 22 and Provost of the University of California-Berkeley, in his individual capacity; MITCHELL CELAYA, Chief of 23 the University of California Police Department at Berkeley, in his individual capacity; LIEUTENANT 24 ERIC TEJADA, a police officer of the University of California Police Department at Berkeley, in his PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 1
1 individual capacity; CLAIRE HOLMES, Associate Vice Chancellor for Public Affairs and Communications for 2 the University of California-Berkeley, in her individual capacity; HARRY LEGRANDE, Vice Chancellor for 3 Student Affairs of the University of California-Berkeley, in his individual capacity; LINDA WILLIAMS, 4 Associate Chancellor of the University of California- Berkeley, in her individual capacity; JOHN WILTON, 5 Vice Chancellor for Administration and Finance for the University of California-Berkeley, in his individual 6 capacity; LIEUTENANT MARC DECOULODE, a police officer for the University of California Police 7 Department, OFFICER SAMANTHA LACHLER, a police officer for the University of California Police 8 Department, in her individual capacity; OFFICER CHAVEZ, a police officer for the Alameda County 9 Sheriff’s Office, in his individual capacity; OFFICER GARCIA, a police officer for the Alameda County 10 Sheriff’s Office, in his individual capacity; OFFICER KING, a police officer for the Alameda County Sheriff’s 11 Office, in his individual capacity; OFFICER OBICHERE, a police officer for the Alameda County 12 Sheriff’s Office, in his individual capacity; OFFICER ROMA, a police officer for the University of California 13 Police Department, in his individual capacity; and DOES 1-100, inclusive, 14 Defendants. 15 ______
16 Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their
17 attorneys, Scheff, Washington and Driver, P.C., state as follows:
18
19 INTRODUCTION
20 1. At the University of California at Berkeley (UC Berkeley) on November 9, 2011, a mass
21 mobilization of thousands of students and community members marched, rallied and
22 peacefully set up protest tents in defense of the integrity of the University as a public
23 institution, against fee hikes and the privatization of public education, and for increasing
24 black, Latina/o, and Native American student enrollment. Entire university departments
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 2
1 cancelled classes, and dozens of professors and graduate student instructors held teach-
2 outs in solidarity with the students.
3 2. The expressed purposes of this demonstration were directly opposed to those espoused
4 by defendants Chancellor Robert Birgeneau and Executive Vice Chancellor and Provost
5 George Breslauer. Birgeneau had published a report and an opinion piece advocating
6 student tuition hikes and maintaining state and federal public funding for a “limited”
7 number of public universities on the basis of matching donations to those universities
8 made from private sources. Furthermore, Birgeneau and defendant George Breslauer had
9 brokered a ten-year $500-million-dollar deal with British Petroleum (BP) in 2007, in
10 which BP has veto power over research proposals coming out of an energy research
11 institute established at UCB and intellectual-property rights over research produced in
12 that institute until 2017. The protests opposed all of these policies.
13 3. Upon the basis of the specific facts set forth below and upon well-founded information
14 and belief, on November 9, 2011 defendant Chancellor Birgeneau, the defendant
15 Executive Vice Chancellor and Provost George Breslauer, the defendant University of
16 California Police Department (UCPD) Chief Mitchell Celaya, and the defendant UCPD
17 Lieutenant Eric Tejada, ordered the police to attack peaceful protesters without lawful
18 authority and in whole or in part because of the purposes of the protest. These
19 defendants thus directly caused the police to use the excessive force and false arrests that
20 violated the plaintiffs’ constitutional rights.
21 4. Upon the basis of the specific facts set forth below and upon well-founded information
22 and belief, the defendants Birgeneau, Breslauer, and Celaya, and the defendants Vice
23 Chancellor for Student Affairs Harry LeGrande, Associate Chancellor Linda Williams,
24 Vice Chancellor for Administration and Finance John Wilton, and Associate Vice
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 3
1 Chancellor for Public Affairs and Communications Claire Holmes were all members of
2 the members of UC Berkeley’s “Crisis Management Executive Team” (CMET) and they
3 had all met together and consulted before November 9, 2011 to plan the police actions
4 for that day.
5 5. Upon the basis of the specific facts set forth below and upon well-founded information
6 and belief, the defendants LeGrande, Williams, Wilton, and Holmes concurred with the
7 plan to order the police to remove the demonstrators on November 9, personally
8 witnessed and did not prevent the police violence and arrests during the afternoon police
9 raid, and concurred with the escalation of violence during the evening police raid. They
10 may also have conveyed or given general or specific directives to the police in ways
11 currently unknown to the plaintiffs.
12 6. The defendants Birgeneau, Breslauer, Celaya, Tejada, LeGrande, Williams, Wilton, and
13 Holmes (who are hereafter referred to collectively as the “Defendant Administrators”)
14 planned for, ordered or concurred in the police attack against peaceful protesters
15 November 9, 2011 because of the protesters’ defense of affordable, public education and
16 their association with the popular “Occupy Wall Street” movement.
17 7. The Defendant Administrators’ brutal “no tents” policy was in complete contrast to the
18 toleration of a long-term protest encampment in May 2010 in front Birgeneau’s office at
19 California Hall, which included tents, sleeping bags and tarps. The defendants
20 Birgeneau, Breslauer, Williams, Holmes, and Celaya (who held the exact same titles
21 then as they did on November 9, 2011) allowed that encampment because it promoted a
22 political message these five defendants agreed with: opposition to an anti-immigrant
23 Arizona law. (Similarly, previous UC-Berkeley Chancellor I. Michael Heyman had
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 4
1 allowed a protest tent city on UC Berkeley’s Sproul Plaza to protest South African
2 apartheid.)
3 8. The brutal “no tents” policy implemented November 9, 2011 was simply a pretext for
4 the Defendant Administrators to send a chilling message, at the end of billy clubs, that
5 speech challenging the Defendant Administrators’ support of privatization of UC
6 Berkeley would not be tolerated.
7 9. The Defendant Administrators lacked legal authority for the attack they authorized. No
8 camping was taking place at the times of the two police attacks described below. UC
9 Berkeley’s own “Berkeley Campus Regulations Implementing University Policies” state
10 that the site of the protest tents, Sproul Plaza, for the hours between 6:00 a.m. and 12:00
11 midnight “may be used without reservation for discussion or public expression which
12 does not require or involve sound amplification equipment.” The two police raids
13 occurred at approximately 4:00pm in the afternoon and 9:00pm in the evening. None of
14 the plaintiffs who were beaten or arrested by the defendant police officers were
15 connected to any specific tent, let alone to camping.
16 10. The defendant police officers of the University of California Police Department (UCPD)
17 and the Alameda County Sheriff’s Office (ACSO) used shocking, unconscionable
18 violence: peaceful protesters were forcefully jabbed in their chests, stomachs, and
19 groins, clubbed in the face, yanked by their hair, and beaten while lying on the ground.
20 Even after the police destroyed students’ tents, they continued to viciously beat people.
21 11. This shocking police violence was witnessed by many people and captured in numerous
22 videos. After the police’s afternoon violence, the video footage was posted on YouTube
23 and instantly went viral. Thousands of people who saw the videos were outraged by the
24 police’s brutality and inspired by the protesters’ courage. In the space of hours,
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 5
1 thousands of people were moved to mobilize to Sproul Plaza to join the students and add
2 themselves to the peaceful protest in an expression of solidarity with the aims and means
3 of the movement to support free speech and public education.
4 12. During a second police raid in the evening, Defendant Lieutenant Eric Tejada
5 admonished the crowd for “camping” and ordered police to disperse and arrest members
6 of the crowd. In the violent police action that followed, officers of the UCPD and ACSO
7 arrested and falsely imprisoned thirty-four people—including Francisco Alvarado-
8 Rosas, Julie Klinger, Anthony Morreale, Sachinthya Wagaarachchi, and Taro
9 Yamaguchi-Phillips—who were standing around the protest tents. None of the thirty-
10 four arrested were ever alleged by the District Attorney for committing any wrongdoing.
11 13. On March 13, 2012, defendant Chancellor Birgeneau announced his resignation. He will
12 leave at the end of the current school year. His departure followed his loss of legitimacy
13 and authority as a result of his actions on November 9, 2011.
14 14. The plaintiffs in this suit—seventeen men and twelve women—were physically and
15 emotionally injured and denied their constitutional rights as a result of the defendants’
16 police attack on November 9, 2011.
17 15. The plaintiffs assert that the Defendant Administrators violated plaintiffs’ First
18 Amendment rights by carrying out this attack because of the protesters’ demands, which
19 included ending the fee hikes, preserving the University of California as a public
20 university open to all, and ending the policies that defendants Birgeneau and Breslauer
21 had advocated, defended and implemented: policies that are leading UC Berkeley to
22 become even more segregated, elite, and beholden to private donors, and which are
23 accompanied by an increasing denial of democratic rights.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 6
1 16. The twenty-nine plaintiffs assert that the Defendant Administrators and defendant police
2 officers violated their Fourth Amendment rights by authorizing and/or using excessive
3 force in attacking a peaceful protest.
4 17. The five plaintiffs who were arrested on November 9, 2011 assert that defendant
5 Lieutenant Tejada ordered the arrests of plaintiffs for supposedly violating orders that
6 had no legal basis, of which they had no notice, and with which they could not comply.
7 18. The plaintiffs bring this suit to achieve justice for themselves and to protect the right of
8 all students everywhere to exercise their rights to free speech and assembly, free of
9 police violence and brutality.
10 19. The plaintiffs further bring this action to assure that UC Berkeley remains a public
11 university. This means that it is open to all, including all Californians, that it serve the
12 public, and that it be a center for critical inquiry and academic freedom. California must
13 not have its leading public university degraded into a segregated intellectual backwater
14 that compromises free speech and academic freedom to serve private interests.
15
16 JURISDICTION AND VENUE
17 20. This is a claim made under the First, Fourth, and Fourteenth Amendments to the U.S.
18 Constitution, 42 USC §1983. This Court has subject matter jurisdiction under 28 USC
19 §1331 and 28 USC §1343(3).
20 21. The United States District Court for the Northern District of California is a proper venue
21 for this action because a substantial part of the events giving rise to this action occurred
22 in that district.
23
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 7
1 INTRADISTRICT ASSIGNMENT
2 22. A substantial part of the events that give rise to this claim occurred in Alameda County,
3 making assignment to the Oakland Division appropriate under Civil L.R. 3-2(d).
4
5 PARTIES
6 23. The plaintiff Yvette Felarca is a national organizer with the Coalition to Defend
7 Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any
8 Means Necessary (BAMN). She graduated from the UC-Berkeley Graduate School of
9 Education and is now a teacher at Martin Luther King Jr. Middle School in Berkeley.
10 24. The plaintiff Francisco Alvarado-Rosas was in his first year in the graduate program at
11 UC-Berkeley’s School of Social Welfare at the time of the events that gave rise to this
12 claim.
13 25. The plaintiff Christopher Anderson is an alumnus of UC-Berkeley, with a B.A. in Peace
14 and Conflict Studies, concentration in Human Rights. He was a UCB senior at the time of
15 the events that gave rise to this claim.
16 26. The plaintiff Joshua Anderson was a first-year graduate student at UC-Berkeley’s English
17 Department at the time of the events that gave rise to this claim.
18 27. The plaintiff James Chang was in his junior year at UCB and a Chinese major at the time
19 of the events that gave rise to this claim.
20 28. The plaintiff Hillary Chesler was a senior majoring in Sociology at UC-Berkeley at the
21 time of the events that gave rise to this claim.
22 29. The plaintiff Honest Chung was a senior majoring in History at UC-Berkeley with a degree
23 at the time of the events that gave rise to this claim.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 8
1 30. The plaintiff Morgan Crawford has graduated from UC-Berkeley with a degree in Rhetoric,
2 and was a senior at UC-Berkeley at the time of the events that gave rise to this claim.
3 31. The plaintiff Yania Escobar was a UC Berkeley senior majoring in Interdisciplinary
4 Studies at the time of the events that gave rise to this claim.
5 32. The plaintiff Joseph Finton was a junior majoring in Film at UC-Berkeley at the time of
6 the events that gave rise to this claim.
7 33. The plaintiff Hayden Harrison was a fourth-year student at Berkeley City College at the
8 time of the events that gave rise to this claim.
9 34. The plaintiff Louis Helm is a graduate of the University of Michigan and a resident of
10 Berkeley, California.
11 35. The plaintiff Jacquelyn Kingkade was a junior majoring in Philosophy at UC-Berkeley at
12 the time of the events that gave rise to this claim.
13 36. The plaintiff Julie Klinger was a third-year graduate student at UC-Berkeley’s
14 Geography Department at the time of the events that gave rise to this claim.
15 37. The plaintiff Benjamin Lynch is an organizer with BAMN and an assistant research
16 physicist at UC Berkeley.
17 38. The plaintiff Maximilian McDonald was a junior at UC-Berkeley at the time of the events
18 that gave rise to this claim.
19 39. The plaintiff Ariella Megory was a senior majoring in Cultural Anthropology at UC
20 Berkeley at the time of the events that gave rise to this claim.
21 40. The plaintiff Anthony Morreale has graduated from UC-Berkeley with a degree in
22 Anthropology. He was a senior at UCB at the time of the events that gave rise to this
23 claim.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 9
1 41. The plaintiff Liana Mulholland is an organizer with BAMN and a graduate of the
2 University of Michigan.
3 42. The plaintiff Ashley Pinkerton has graduated from UC-Berkeley with a degree in Peace
4 and Conflict Studies. She was a senior at UCB the time of the events that gave rise to this
5 claim.
6 43. The plaintiff Jessica Schaffer was a second-year graduate student at UC-Berkeley’s School
7 of Public Health at the time of the events that gave rise to this claim.
8 44. The plaintiff Colleen Mica Stumpf was a senior majoring in Peace and Conflict Studies at
9 UC-Berkeley at the time of the events that gave rise to this claim.
10 45. The plaintiff Justin Tombolesi was a junior majoring in History at UC-Berkeley at the time
11 of the events that gave rise to this claim.
12 46. The plaintiff Erick Uribe has graduated from UC Berkeley with a degree in Environmental
13 Science, Policy, and Management. He was a senior at UCB at the time of the events that
14 gave rise to this claim.
15 47. The plaintiff Sachinthya Wagaarachchi was a senior majoring in Engineering Physics at
16 UC-Berkeley at the time of the events that gave rise to this claim.
17 48. The plaintiff Dan Wilbur has graduated from UC-Berkeley with a degree in Geography. He
18 was a senior at UCB at the time of the events that gave rise to this claim.
19 49. The plaintiff Taro Yamaguchi-Phillips was a junior at UC-Berkeley at the time of the
20 events that gave rise to this claim.
21 50. The plaintiff Colleen Young was a senior majoring in Anthropology with a minor in Native
22 American Studies at UC Berkeley at the time of the events that gave rise to this claim.
23 51. The plaintiff Margaret Zhou was a junior majoring in Comparative Literature at UC-
24 Berkeley at the time of the events that gave rise to this claim.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 10
1 52. The defendant Robert J. Birgeneau was the Chancellor of the University of California-
2 Berkeley (UC-Berkeley) at all times relevant to this case and is joined in his individual
3 capacity.
4 53. The defendant George Breslauer was the Executive Vice Chancellor and Provost of UC-
5 Berkeley at all times relevant to this case and is joined in his individual capacity.
6 54. The defendant Mitchell Celaya was the Chief of the University of California Police
7 Department (UCPD) at UC-Berkeley at all times relevant to this case and is joined in his
8 individual capacity.
9 55. The defendant Lieutenant Eric Tejada was the immediate commanding officer for the
10 police sergeants and officers at all times relevant to this case and is joined in his individual
11 capacity.
12 56. The defendant Claire Holmes was the Associate Vice Chancellor for Public Affairs and
13 Communications of UC-Berkeley and part of the CMT at all times relevant to this case, and
14 is joined in her individual capacity.
15 57. The defendant Harry LeGrande was the Vice Chancellor of Student Affairs of UC-
16 Berkeley at all times relevant to this case and is joined in his individual capacity.
17 58. The defendant Linda Williams was the Associate Chancellor of UC-Berkeley and part of
18 the “Crisis Management Team” (CMT), assigned responsibility for overseeing campus
19 response to protests at all times relevant to this case, and is joined in her individual
20 capacity.
21 59. The defendant John Wilton was the Vice Chancellor of Administration and Finance of UC-
22 Berkeley and part of the CMET at all times relevant to this case, and is joined in his
23 individual capacity.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 11
1 60. The defendant Officer Samantha Lachler is a police officer with the UCPD and is joined
2 in her individual capacity.
3 61. The defendant Officer Chavez is a police officer with the ACSO and is joined in his
4 individual capacity.
5 62. The defendant Officer Garcia is a police officer with the ACSO and is joined in his
6 individual capacity.
7 63. The defendant Officer King is a police officer with the ACSO and is joined in his
8 individual capacity.
9 64. The defendant Officer Obichere is a police officer with the ACSO and is joined in his
10 individual capacity.
11 65. The defendant Officer Roma is a police officer with the UCPD and is joined in his
12 individual capacity.
13 66. The plaintiffs do not know the true names and capacities of Defendants DOES 1 through
14 100, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are
15 informed and believe and thereon allege that each defendant so named is responsible in
16 some manner for the injuries and damages sustained by plaintiffs as set forth herein.
17 Plaintiffs will amend their complaint to state the names and capacities of DOES 1-100,
18 inclusive, when they have been ascertained.
19 67. DOES 1 through 100, inclusive, the identity and number of whom are presently
20 unknown to the plaintiffs, were police officers employed by defendant UC-Berkeley,
21 UCPD, ACSO, and/or OPD acting within the course and scope of their employment, and
22 were directly involved in the actions causing injury to plaintiffs at all times relevant to
23 this case.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 12
1 68. At the time of the incidents causing injury to plaintiffs November 9-10, 2011, the
2 defendants were acting under color of state law.
3
4 STATEMENT OF FACTS
5 For two weeks leading up to November 9, 2011, the Defendant Administrators planned
6 to break up a peaceful encampment protesting their policies of privatization
7 69. Defendant Chancellor Robert Birgeneau established the “Crisis Management Executive
8 Team” (CMET) to have “executive immediate oversight and direction during
9 emergencies involving protests and similar disturbances as required” in close
10 consultation with Birgeneau himself. Among its members were defendants Linda
11 Williams, George Breslauer, Mitchell Celaya, Claire Holmes, Harry LeGrande, and John
12 Wilton.
13 70. On October 24, 2011 at 10:04am, defendant LeGrande received an email indicating that
14 an encampment in solidarity with the burgeoning Occupy Wall Street movement was
15 planned for UC-Berkeley November 9, 2011. LeGrande shared this with other members
16 of the CMET. Thirty-eight minutes after LeGrande received the email, defendant
17 University of California Police Department (UCPD) Lieutenant Mark DeCoulode
18 requested that UCPD of UC-San Francisco lend UCPD of UCB more police officers.
19 71. As early as October 31, 2011, defendant and Executive Vice Chancellor and Provost
20 George Breslauer emailed a colleague saying he was “in charge of the campus [on
21 November 9, 2011], as the Chancellor will be in Asia” and that he would be enforcing a
22 “’no encampment’ policy” and would need “to make a lot of decisions that day.”
23 72. On November 2, 2011, defendant Claire Holmes set up six conference calls on
24 November 9 and 10, 2011—to be held at 10:00am, 1:00pm, and 4:00pm each day—to
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 13
1 discuss the developments during the protests. These conference calls would include
2 defendants Holmes, Williams, and Celaya of the CMET.
3 73. On November 3, 2011, the CMET convened. This meeting was attended by defendants
4 Robert Birgeneau, Linda Williams, George Breslauer, Mitchell Celaya, Claire Holmes,
5 and Harry LeGrande. The CMET discussed how the administration and police would
6 enforce a strict “no tents” policy for November 9, 2011. Each of these defendants
7 concurred with this plan.
8 74. On November 9, 2011, defendants Breslauer, LeGrande, Williams, Holmes, Wilton, and
9 Celaya worked in concert at the scene on Sproul Plaza to enforce their strict “no tents”
10 policy.
11 Peaceful rally and march on November 9, 2011
12 75. On the afternoon of November 9, 2011, thousands of UC-Berkeley students and
13 community members engaged in a peaceful rally and march. The demonstration was in
14 solidarity with the national “Occupy” movement demanding economic justice. The
15 protesters called for an end to fee/tuition increases, cuts, and privatization at UC-
16 Berkeley and for taxing the banks, corporations, and billionaires to finance public higher
17 education. The mood of the demonstration was positive and festive.
18 76. Many of the protesters were also critical of defendant Robert J. Birgeneau’s advocacy,
19 defense, and implementation of measures that make UC-Berkeley resemble more and
20 more a private university—relying on private funding for academic departments, relying
21 on steeply-rising student tuition to cover operating costs, and making the university
22 more responsive to private interests than to public interests—and his violent repression
23 of student free speech defending public education in the past.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 14
1 77. Due to the defendant Birgeneau’s previous tolerant response to protest tents on campus,
2 many of the protesters on November 9, 2011 believed that they would be able peacefully
3 to set up protest tents after the march. In May 2010, students had had a peaceful
4 encampment that included sleeping bags and tarps in front of Birgeneau’s office at
5 California Hall. At the time, defendants Birgeneau, Breslauer, LeGrande, Williams,
6 Holmes, and Celaya had the same positions they would also have on November 9, 2011.
7 78. Other cities and universities, including the neighboring city of Oakland at the time of the
8 November 9 protest, were permitting the “Occupy” movement to set up encampments.
9 79. On November 9, organizers planned to set up protest tents on the grassy lawn in front of
10 Sproul Hall. Students and staff exit Sproul Hall via the stairs in front of Sproul Hall and
11 do not use this grassy lawn. This area did not block foot traffic and it is not used for
12 staging events. The protest tents would not have interfered with academic or university
13 activities in any way.
14 80. On November 9, after a rally and march, approximately four hundred students convened
15 a “General Assembly” on Sproul Plaza and discussed a declaration to send out to the
16 broader movement about the goals of their encampment. They voted 456 to 1 in favor of
17 establishing an encampment.
18 81. Before this vote and after, Birgeneau had continuous exchanges directly with defendant
19 Breslauer, whom he authorized to implement his “no tents” policy for the day.
20 82. Several students brought protest tents and supplies and tried to erect the protest tents on
21 the southeast corner of the northern grassy lawn in front of Sproul Hall.
22 83. At 2:55pm, defendant Breslauer sent a picture with the full text of the resolutions the
23 student protesters had adopted to Birgeneau.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 15
1 84. All the police actions that follow were communicated and implemented via the
2 following chain of authority: defendant Chancellor Birgeneau to defendant Executive
3 Vice Chancellor and Provost Breslauer, Breslauer to defendant UCPD Chief Mitchell
4 Celaya, Celaya to UCPD Lieutenant Eric Tejada, and Tejada to the police officers of
5 UCPD and ACSO.
6 85. A handful of police officers tried to seize the protest tents from the students. Protesters
7 gathered and chanted to protest the police action. The officers left the scene.
8 86. Protesters continued to erect protest tents, and the mood was calm and peaceful. About
9 four protest tents were erected on the lawn.
10 Afternoon raid
11 87. More police officers arrived and formed a line to the north. Protesters gathered around
12 the protest tents, some of them linking arms. One group gathered farther north and
13 facing north, while another group gathered closer to and surrounding the protest tents.
14 88. Dozens of police, which included officers from the University of California Police
15 Department (UCPD) and the Alameda County Sheriff’s Office (ACSO) approached the
16 protesters from the north and from the south. The police were wearing riot gear,
17 including helmets.
18 89. At about 3:30 pm, under orders from the defendants Birgeneau, Breslauer, Celaya and
19 Tejada, through the chain of command described above, the police forcefully attacked
20 students, pushing with the broad side of their batons, jabbing students with the ends of
21 their batons in students’ stomachs, chests, ribs, legs, backs, and groins, using overhand
22 strikes and headlocks, and yanking people out by their hair and arresting them.
23 90. During the afternoon raid, the police arrested about seven protesters.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 16
1 91. At no point during the afternoon or evening raids did protesters attack police. Students
2 chanted “Peaceful protest,” “Stop beating students,” and “Shame.”
3 92. The police grabbed and indiscriminately arrested people who were standing between
4 them and the tents, even when these individuals had nowhere else to go, because the
5 mass of people behind them pinned them between the people behind them and the police
6 in front of them.
7 93. The police secured access to the protest tents from both sides. However, the police
8 violence against protesters did not cease. Police continued to conduct coordinated
9 assaults, jabbing and beating people with their batons.
10 94. At about 3:55 pm, the police retreated.
11 95. Afterward, protesters set up more protest tents in the same area on the grassy lawn and
12 convened another General Assembly to discuss what to do next.
13 96. Between approximately 4:00pm and 6:00pm, defendants Celaya, Williams, LeGrande
14 met with members of the UC-Berkeley student government to get their agreement on
15 their “no tents” policy.
16 97. At 4:28pm, Breslauer gave a detailed report via email to Birgeneau of the afternoon
17 police raid, reporting the use of batons and “people watching and screaming at police.”
18 98. At 5:36 pm, defendant Chancellor Birgeneau, in an email to defendants Breslauer,
19 LeGrande, Williams, and Claire Holmes, stated: “It is critical that we do not back down
20 on our no encampment policy. Otherwise, we will end up in Quan land.”
21 99. By 6:00pm, Breslauer had been informed by email that a graduate student was in urgent
22 care and that a professor was injured by police.
23 100. At or around 6:15 pm, Vice Chancellor of Student Affairs Harry LeGrande came to the
24 General Assembly and read a statement, declaring that the administration would allow
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 17
1 protesters to stay on Sproul Plaza, but they could not have protest tents or sleeping bags
2 and could not cook food or sleep. If they were to not comply with these restrictions, the
3 administration would send in police after issuing a ten-minute warning.
4 101. Close to 7:00 pm, a colleague advised Breslauer against clearing the tents, saying he did
5 not believe the police could be trusted to act without violence.
6 102. The General Assembly discussed the administration’s proposal. At or around 7:00 pm,
7 nearly four hundred students voted overwhelmingly to keep the encampment.
8 Evening raid
9 103. By about 9:00 pm, hundreds of protesters once again gathered around the protest tents
10 after observing that police were amassing inside Sproul Hall.
11 104. A large police force approached from the north in riot gear, along with another large
12 force in riot gear stepping out of Sproul Hall’s front doors and approaching the protest
13 tents from the south.
14 105. These police included officers from the UCPD, ACSO, and the Oakland Police
15 Department (OPD).
16 106. Defendant UCPD Lieutenant Eric Tejada made an announcement through a small
17 bullhorn that was barely audible to the police and the crowd. He gave no ten-minute
18 warning. He said that camping was unlawful and to “put down the tents now.”
19 107. Tejada then ordered police to march forward, beat people, and make arrests.
20 108. The police forced their way to the protest tents with even more brutality than in the
21 afternoon, pushing and jabbing people with their batons and using overhand strikes,
22 sometimes aiming at and hitting people’s heads. Numerous protesters fell under the
23 crush of the police assault and blows.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 18
1 109. The police action created mass panic among protesters, who tripped over each other in
2 their rush to avoid the police beating.
3 110. Police beat and kicked people who were lying on the ground and yanked them behind
4 the police line for arrest.
5 111. The police again indiscriminately arrested people who were between them and the tents,
6 even when these individuals had nowhere else to go because of the crush of people
7 behind them.
8 112. The police secured access to the protest tents, destroyed them, and formed a perimeter
9 surrounding the grassy lawn where the protest tents used to stand.
10 113. Protesters gathered in front of the police, chanting.
11 114. The police attacked this peaceful group, beating people.
12 115. During the evening raid, the police arrested about thirty-one protesters.
13 116. Over the course of the police violence, students hurried to Sproul Plaza from across
14 campus to defend the protesters. Over two thousand people amassed in Sproul Plaza,
15 and the police ceased their attack.
16 117. The protesters amassing in Sproul Plaza voted overwhelmingly to hold a university-wide
17 strike on November 15, 2011 to defend public education and protest the university’s
18 police brutality against peaceful protesters.
19 118. The next day, November 10, 2011, defendants Chancellor Birgeneau, Executive Vice
20 Chancellor and Provost George Breslauer, and Vice Chancellor of Student Affairs Harry
21 LeGrande sent out an email to the campus community defending the violent police
22 actions of November 9.
23 119. In the face of continuing protests and calls for his resignation, on November 22, 2011
24 defendant Chancellor Birgeneau publicly admitted, in writing, his role in causing injury
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 19
1 to protesters: “I sincerely apologize for the events of November 9th at UC Berkeley and
2 extend my sympathies to any of you who suffered an injury during these protests. As
3 Chancellor, I take full responsibility for these events and will do my very best to ensure
4 that this does not happen again.”
5 120. The accounts of individual plaintiffs who suffered such injuries are detailed further
6 below.
7 Yvette Felarca
8 121. Yvette Felarca is a prominent activist, national organizer with the Coalition to Defend
9 Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any
10 Means Necessary (BAMN), a graduate of UC Berkeley’s School of Education, and a
11 teacher at Berkeley’s Martin Luther King Jr. Middle School.
12 122. During the afternoon raid, Ms. Felarca was linking arms with other protesters facing
13 north. She was not initially in the front; however, when people in front of her were
14 attacked and retreated into the crowd, she found herself in front of the crowd.
15 123. Ms. Felarca pleaded with the officer in front of her, defendant Officer Chavez of the
16 Alameda County Sheriff’s Office. Ms. Felarca said, “This is our university. You don’t
17 want to do this, you know you don’t. This is stupid.”
18 124. Chavez replied, “Then get out of the way if you don’t want to be beaten.”
19 125. Some time later, suddenly and out of nowhere, an officer forcefully jabbed Ms. Felarca
20 in the stomach with the end of his baton. The rest of the line of police joined in, jabbing
21 and beating protesters.
22 126. Ms. Felarca was hit in the collar bone and throat. Her throat hurt very badly. After the
23 jab to her stomach, she turned sideways to protect her stomach. The police continued to
24 jab her in the midsection.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 20
1 127. Chavez and a second unidentified officer focused their batons on Ms. Felarca.
2 128. Around Ms. Felarca, people were screaming in terror and pain.
3 129. Ms. Felarca was hit in the right side area of her abdomen. When she went to the hospital
4 later, she was told her liver was beneath that injured area. She was also hit a few inches
5 above that, in her lower right rib area. Her left front rib area, left side ribs, and left back
6 ribs were hit multiple times.
7 130. Her left hand and fingers were hit, and her right hand was hit when the police officer
8 was striking the person to her right with whom she was linking arms.
9 131. Ms. Felarca, upset and crying, backed away from the front. She was in so much pain that
10 she felt like she was going to vomit.
11 132. She spent a long time in the back of the protest shaking and trying not to throw up.
12 133. She suffered multiple contusions on her ribs and midsection. When she coughed, it hurt
13 so much that she almost passed out, which also made her panic because she was afraid
14 that if she did not cough she could not breathe.
15 134. For days, she felt extreme pain lying down. She could not sleep through the night for the
16 first two nights because of the pain, and was only able to sleep afterward because of
17 medication she got from the hospital. As of November 29, 2011 when this action was
18 initially filed, she felt pain sitting and standing in certain positions.
19 135. As of November 29, 2011, she still could not lie down on either one of her sides because
20 of the pain. She felt extremely exhausted hours before her usual time to go to sleep. She
21 could only cough partially, particularly because of the sharp and excruciating pain. She
22 could not finish a sneeze because of the sharp pain, especially in her left back ribs.
23 136. For weeks, she cried almost daily as a result of the incident. When she was examined by
24 the doctor, she began to shake and sob uncontrollably.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 21
1 Francisco Alvarado-Rosas
2 137. During the evening raid, Francisco Alvarado-Rosas was linking arms as part of the
3 group of protesters facing north, in the front and closest to Sproul Hall.
4 138. Earlier that evening, he had received a text message about the afternoon incident. He had
5 already planned to attend the protest but was motivated to participate even more because
6 of the administration’s attack on free speech.
7 139. He had arrived at about 6:00 pm and began to read and study.
8 140. Vice Chancellor of Student Affairs Harry LeGrande had announced that protesters had
9 until 10:00 pm to remove the tents, and that if they did not the police would show up,
10 give a ten-minute warning, and remove the tents by force.
11 141. At around 9:30 pm, the police showed up in full riot gear.
12 142. As the police moved forward, Mr. Alvarado-Rosas turned to his friend and told her
13 everything would be okay because she seemed scared. Then, out of nowhere, he felt a
14 pain in his ribs.
15 143. The police line was close to him and the other protesters, and he fell to the front. He kept
16 feeling random baton jabs. The police kept screaming at him “Move! Move! Move!” but
17 this was impossible because he was on the ground and they kept beating him down with
18 their batons.
19 144. Mr. Alvarado-Rosas screamed at the police that he could not move because they were
20 hitting him.
21 145. The police demanded that he remove his hands from his face, but he did not because he
22 was afraid they would strike him in the face.
23 146. He heard an officer yell to arrest him. Two officers grabbed Mr. Alvarado-Rosas and
24 pulled him behind the police line.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 22
1 147. The police brought out zip ties, confiscated his backpack, and took him to the UCPD
2 station beneath Sproul Hall.
3 148. Mr. Alvarado-Rosas was detained there for about an hour, as the police brought more
4 people in.
5 149. The police transported Mr. Alvarado-Rosas and other protesters to the Oakland jail.
6 150. The police booked protesters.
7 151. One arrestee was a man who was in a lot of pain and could barely walk due to the police
8 violence. The police made fun of him and called him a “cry baby.”
9 152. They released Mr. Alvarado-Rosas after several hours.
10 Christopher Anderson
11 153. During the afternoon raid, Christopher Anderson was linking arms as part of the group
12 of protesters facing north, in the front.
13 154. A line of riot police wearing helmets approached him and began beating him and other
14 protesters around him.
15 155. An unidentified officer repeatedly jabbed Mr. Anderson in the left arm and rib with the
16 point of his baton. As the line of officers shifted, a second officer and later a third officer
17 jabbed Mr. Anderson repeatedly.
18 156. During a lull in the police violence, Mr. Anderson's left leg was positioned a few inches
19 farther forward than his right. The third officer demanded that Mr. Anderson move his
20 leg and said that if he didn't, "I'll fuck you up."
21 157. This third officer swung his baton using both hands and hit Mr. Anderson repeatedly on
22 the shin. A woman adjacent to Mr. Anderson tried to use her leg to protect him; the
23 officer pushed her leg away and continued to strike Mr. Anderson’s shin over and over.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 23
1 158. Some time later, the line of police attacked the protesters again, this third officer now
2 hitting Mr. Anderson with tremendous force. By this point, Mr. Anderson had been
3 struck about fifteen times.
4 159. After the afternoon raid, Mr. Anderson felt great pain in his shin, and there were a
5 couple of raised bumps and a couple of cuts on his shin. He felt severe pain in his left
6 arm and left ribs.
7 160. During the evening raid, Mr. Anderson joined the group of protesters facing north, about
8 five feet west from the hedge lining Sproul Hall.
9 161. As the line of police walked parallel to the hedge and forced its way through the crowd,
10 various officers jabbed Mr. Anderson with their batons.
11 162. A fourth officer, defendant Officer Obichere of the Alameda County Sheriff’s Office,
12 who appeared to weigh over 250 pounds, focused on Mr. Anderson and hit him with
13 tremendous force about five times with increasing intensity. In addition to jabs, this
14 officer used overhand swings and struck Mr. Anderson's leg as well.
15 163. One unidentified officer used both hands and struck Mr. Anderson with the broad side of
16 his baton twice directly in the face, in his upper gum and nose area. Mr. Anderson felt
17 blood running out of his nose.
18 164. Mr. Anderson also saw protesters falling down in front of him and on top of each
19 other—the police continued to beat these people and pulled them out for arrest.
20 165. Feeling dazed because of the blow to his face, Mr. Anderson stumbled westward, along
21 the gap between protesters and officers, to escape.
22 166. Some time later, Mr. Anderson rejoined the group of protesters facing north, farther to
23 the west from where he had stood previously. He stood near Officer Obichere, who
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 24
1 began hitting another protester. A fifth officer, adjacent to Obichere, jabbed Mr.
2 Anderson repeatedly with his baton about seven times.
3 167. Mr. Anderson, overwhelmed and in pain from the accumulated blows, left the front of
4 the crowd.
5 168. Mr. Anderson had bruises all over his upper body.
6 Joshua Anderson
7 169. During the afternoon raid, Joshua Anderson was part of the crowd facing the police to
8 the north.
9 170. When the police attacked, they beat Mr. Anderson in the chest, jabbed him in the
10 stomach and smacked his arms with their batons.
11 171. There was a very small young woman next to him who was being savagely beaten and
12 who was crying from pain. When Mr. Anderson covered her with his arm and body to
13 shield her, his arm and hand were beaten even more viciously.
14 172. There was a pause in the beating for about one minute. Mr. Anderson linked arms with
15 fellow protestors.
16 173. During the next police attack, Mr. Anderson tripped and fell toward Sproul Hall. At this
17 point, he was beaten with batons. He was right on the hedge lining the building. He
18 heard a police officer behind him say “Alright, motherfucker,” and this officer put his
19 arm around Mr. Anderson’s neck, obstructing his breathing, and used his other arm to
20 hold him around the waist.
21 174. Then, a short Asian or Latino officer came at Mr. Anderson with a baton while he was in
22 a chokehold and started beating him. During this time, Mr. Anderson could barely
23 breathe. The officer hitting him tried to hit him in the genitals, but he missed and hit
24 about two inches away; he hit him at the very top of his inner left thigh.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 25
1 175. Mr. Anderson was then let go by the officer. Mr. Anderson rejoined the group of
2 protesters.
3 176. Later, three officers singled him out and started to beat him all together. At the same
4 time, Anderson was being pulled towards the hedge. He fell into the bush and they
5 continued to beat him while he was down. In one-second intervals three police officers
6 hit him, one after another in a continuous rhythm of violent jabs. This lasted about
7 twenty seconds. He fell back in the bush and was on the ground, when an officer hit him
8 on the leg.
9 177. The officer had hit Anderson hard on his leg right on his pants pocket, in which was a
10 key. The police strike left a dark black spot on his leg, which had now turned yellow. He
11 was hit so hard on the leg, that the key in his pocket was bent into the shape of the baton.
12 During the second attack, he was hit on the back of the head numerous times. Mr.
13 Anderson then limped away from the scene of the mass assault.
14 178. As of the time this lawsuit was originally filed, November 29, 2011, Anderson had
15 contusions on most of his ribs. His stomach and back continued to hurt badly. He had
16 been hit very hard in the face, causing the side of his eye and cheek to swell up. It had
17 swollen up so much that he could see the side of his face out of the corner of his eye.
18 179. Mr. Anderson’s hand was swollen that day, and it still hurt as of November 29, 2011. He
19 could not touch anything with his left hand without feeling pain.
20 James Chang
21 180. During the evening raid, James Chang was originally not in the front of the group of
22 protesters.
23 181. He saw police beating people all around him, especially women, and including a
24 photographer.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 26
1 182. When Mr. Chang tried to assist a student who was trying to retrieve a piece of her
2 property, an unidentified officer forcefully hit his leg a couple of times.
3 183. The officer then jabbed Mr. Chang in the stomach with the end of a baton. It was very
4 painful, and Mr. Chang felt like the wind was knocked out of him.
5 Honest Chung
6 184. During the evening raid, Honest Chung was linking arms with other protesters in the
7 front row. He was standing near the tree at the southern end of the grassy lawn.
8 185. When the line of police approached, one unidentified officer singled out Mr. Chung and
9 jabbed away at him with the end of a baton. This officer hit him three to five times,
10 paused a few seconds, then jabbed him seven to eight more times.
11 186. Mr. Chung was being hit so hard, that a soda can in his backpack burst.
12 187. After being hit so many times, Mr. Chung stopped linking arms with his neighbors. He
13 found that he could hardly breathe and was in extreme pain.
14 188. Still receiving blows, Mr. Chung tried to lean back. He collapsed from the force of the
15 blows. People behind him dragged him back into safety. A large man picked him up and
16 carried him to the middle of Sproul Plaza.
17 189. Several people surrounded Mr. Chung and asked where he was hurt. He felt most of the
18 pain in his forearm and left rib, and it hurt to breathe. When one person asked if Mr.
19 Chung needed medical attention, Mr. Chung could not give a coherent answer.
20 190. He was able to walk, but he had to keep his left arm as immobile as possible and use his
21 right arm to hold his rib.
22 191. Another person drove Mr. Chung to the hospital.
23
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 27
1 Hillary Chesler
2 192. During the afternoon raid, Hillary Chesler linked arms with protesters who were closer
3 to and surrounding the protest tents.
4 193. The police attacked Ms. Chesler and those around her, shoving people and jabbing them
5 with the ends of their batons.
6 194. Ms. Chesler was hit very hard and continuously for a few minutes. It was very painful.
7 She was hit in the chest area and in her neck. She was also shoved into a bush and
8 received a huge scrape on her hand.
9 195. Several people away from her, officers were pulling people out, including pulling
10 women out by their hair. They continued to pick people off, and when they reached Ms.
11 Chesler, they threatened her with arrest if she did not leave. She left.
12 196. She met up with a friend nearby and was crying and shaken up from the ordeal. Her
13 hand was bleeding.
14 197. During the evening raid, Ms. Chesler was on the stairs of Sproul Hall. The police
15 shouted at her and others to move back, even though there was nowhere to go because of
16 the crowd of people behind her.
17 198. The police forcefully pushed Ms. Chesler and others down the stairs with their batons.
18 199. Ms. Chesler’s whole body was sore, especially her chest and neck area where she was
19 repeatedly jabbed.
20 Morgan Crawford
21 200. During the afternoon raid, Morgan Crawford was linking arms as part of the group of
22 protesters facing north, in the front.
23
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 28
1 201. The police advanced and continuously tried to force students back. The officers pushed
2 with the broad side of their batons and jabbed with the end of their batons, focusing on
3 arms, ribs, abdomens, stomachs, and groins.
4 202. An officer yelled “Move!” Protesters responded that they could not move back.
5 Defendant Officer Obichere of the Alameda County Sheriff’s Office, who appeared to
6 weigh over 250 pounds, attacked Mr. Crawford.
7 203. Some of the officers appeared to enjoy what they were doing.
8 204. The attack went on for several minutes. People were screaming that they were hurt.
9 205. Mr. Crawford felt terrified and angry that he and others would be attacked by people
10 who should be protecting him.
11 206. Mr. Crawford left the scene and returned during the evening. The mood was positive,
12 and there was music.
13 207. Protesters started yelling that the police were coming. Mr. Crawford linked arms with
14 the group of protesters facing north and was standing in the front. Officers in ACSO
15 uniforms marched toward them in formation wearing riot gear, thrusting their batons
16 forward in rhythm, chanting “Move! Move!”
17 208. Mr. Crawford felt terrified but was unable to move back because there were so many
18 people behind him.
19 209. The police began jabbing Mr. Crawford and those around him. He was getting hit even
20 harder than during the afternoon. He and other protesters were telling the police they
21 could not move back, but the police continued to jab and push them.
22 210. There appeared to be a second wave of officers that arrived who were a lot more ruthless
23 in attacking Mr. Crawford and those around him. They were beating people on any part
24 of their bodies they could. Mr. Crawford had the wind knocked out of him.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 29
1 211. He heard screams in front of him and saw a barrage of batons in front of him, with
2 camera lights flashing. Mr. Crawford felt like he was in a war zone.
3 212. An unidentified officer assaulted Mr. Crawford, whacking the side of his leg. This was
4 cripplingly painful. Mr. Crawford doubled over.
5 213. Mr. Crawford turned around and retreated into the crowd. As he was leaving, he could
6 feel the police continuing to hit him in the back with batons.
7 214. It was only after leaving the crowd, inside of which he was supported by those around
8 him, that Mr. Crawford realized he could hardly stand. A couple of friends had to carry
9 him home on their shoulders.
10 215. The side of his leg was very swollen. Red welts in the shape of batons were on the side
11 of his legs. He had massive contusions on his leg and could barely walk.
12 216. Going to bed that night, he could not get his mind off the protest and continued to hear
13 screaming.
14 217. As of November 29, 2011, Mr. Crawford still had to walk on crutches.
15 218. He had suffered from anxiety and depression since November 9, and he had an anxiety
16 attack on November 11. As of November 29, 2011, he felt anxious around large groups
17 of people. If he heard a group of people scream, his mind went back to the terror of that
18 night.
19 Yania Escobar
20 219. During the evening raid, Yania Escobar was linking arms with other protesters, in the
21 front row facing police.
22 220. An unidentified officer jabbed Ms. Escobar repeatedly in the right lower abdomen.
23 221. Ms. Escobar saw brutality all around her. One officer swung his baton and hit the back
24 of a man’s knees, knocking him down, and hit him more while he was on the ground.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 30
1 222. Police pushed Ms. Escobar and others backward, forcing Ms. Escobar to trip over the
2 protest tent that was right behind her. While she was on the ground, the officer
3 continued to jab her with a baton.
4 223. Another protester pulled Ms. Escobar out for her safety.
5 224. Ms. Escobar left, took a breath for a little while, and went back to join the protest.
6 225. A line of police now stood between where protest tents used to be and Sproul Hall.
7 226. Ms. Escobar saw protesters chanting “Shame, shame,” “Shame on you,” and “Stop
8 beating students.”
9 227. The uniform of defendant Officer King said “King Jr.” Ms. Escobar told this officer that
10 he needed to live up to the name his dad gave him and that he should be ashamed.
11 228. Soon after this, the police started beating protesters again. Officer King hit Ms. Escobar
12 in her right breast and rib area.
13 229. As of the day this action was initially filed on November 29, 2011, Ms. Escobar’s lower
14 right abdomen hurt when touched.
15 Joseph Finton
16 230. During the evening, Joseph Finton was linking arms with a group of people surrounding
17 the tents.
18 231. He saw police approach from the north, reach the tents and destroy them.
19 232. He ended up in the front of the group, linking arms with other protesters, facing police
20 officers. He was standing on the concrete about ten to fifteen feet away from the tree that
21 is on the southern end of the grassy lawn, and was facing Sproul Hall.
22 233. The police continued to beat people. There was no way for Mr. Finton and others to step
23 back.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 31
1 234. Defendant Officer Garcia continuously jabbed him with the end of his baton, in his legs
2 and in his chest.
3 235. Mr. Finton saw Garcia hit other protesters as well, including in particular a woman to
4 Finton’s right who was crying the whole time.
5 236. Finton told Garcia that he was going to file a complaint against him. Garcia continued to
6 jab Finton some more.
7 237. A friend to Finton’s right got knocked over by the baton blows. When Finton tried to
8 help him up, Garcia continued to hit him.
9 238. Garcia jabbed Finton, completely unprovoked and for no good reason, about five times.
10 239. After getting beaten repeatedly, Finton had to leave because he could not take it
11 anymore.
12 240. His chest and legs hurt, and the pain got worse the next day. He had bruises on his chest
13 and legs. He walked with a limp.
14 Hayden Harrison
15 241. During the afternoon raid, Hayden Harrison was linking arms as part of the group of
16 protesters facing north, in the front. He was trying to take pictures of what happened.
17 242. When police made an announcement over a megaphone, Mr. Harrison could not hear it,
18 even though he was in the front.
19 243. Five to ten minutes later, the police started hitting people along the front of the crowd.
20 244. First, they pushed Mr. Harrison with their batons, but soon all the police along the line
21 were jabbing people hard and aggressively in their stomachs, including Mr. Harrison.
22 245. Defendant Officer Samantha Lachler was trying to hit him in the groin with the edge of
23 her baton. She did hit his groin and it hurt very badly. He had a stomach ache for several
24 hours afterward.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 32
1 246. Mr. Harrison was hit over ten times, mostly in his stomach and front hip area, by
2 different officers.
3 247. The officers were ordering him and others to move back, but this was impossible
4 because of the crowd behind them.
5 Louis Helm
6 248. During the evening raid, Louis Helm was linking arms with other protesters, in the front
7 and facing police. He was standing near the tree at the southern end of the grassy lawn.
8 249. The police pushed Mr. Helm and those around him backward. An unidentified officer
9 was jabbing Mr. Helm in the ribs.
10 250. The police were telling people to move back. Even if Mr. Helm had tried to, he could
11 not because there were so many people behind him.
12 251. Officers hit and tackled the person next to Mr. Helm and were pulling this protester out.
13 During this, they also grabbed Mr. Helm by his arm and backpack. They were pulling so
14 hard that the top straps of Mr. Helm’s backpack broke and they ripped off his backpack.
15 252. Two unidentified officers attacked Mr. Helm and hit him repeatedly. He was struck at
16 least four times in the ribs and stomach, and also struck on his legs.
17 253. Mr. Helm buckled a little and his body lowered. The officers continued to strike him,
18 aiming for his head.
19 254. One baton struck his right eye, just outside of the socket.
20 255. Mr. Helm lifted his left arm above his head to shield himself. The officers hit his raised
21 arm three or four times. When an officer hit his elbow, Mr. Helm lost feeling in his
22 hand.
23 256. Later, officers continued to hit Mr. Helm’s ribs.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 33
1 257. As of November 29, 2011 when this action was initially filed, Mr. Helm had injuries
2 across his body and bruises on both of his legs.
3 Jacquelyn Kingkade
4 258. During the afternoon raid, Jacquelyn Kingkade was linking arms as part of the group of
5 protesters facing north.
6 259. Protesters were linking arms, and engaged in conversations, and the line of police was
7 just standing there. She does not remember the police giving any warning of what they
8 were going to do and how, or that they were going to be so violent.
9 260. Suddenly, the police attacked people, jabbing people with the ends of their sticks. Ms.
10 Kingkade tried to slip back, but there were too many people behind her.
11 261. An unidentified officer hit Ms. Kingkade in the chest. She was terrified and thought they
12 would break her ribs, and she could not get out.
13 262. She had a bruise on her chest, and it hurt to breathe afterward. She also had bruises all
14 over her legs because the police were pushing protesters into each other. She cannot
15 walk fast at all and has to hunch over.
16 263. As of November 29, 2011 when this action was initially filed, she felt anxious when she
17 was in large crowds and remembered the feeling of being trapped. She got anxious when
18 she saw police because she no longer knew whether they would hit people for no reason.
19 Julie Klinger
20 264. During the evening raid, Julie Klinger was linking arms in the group of protesters facing
21 north.
22 265. Before the police attacked her and those around her, Ms. Klinger did not hear an order to
23 disperse.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 34
1 266. Ms. Klinger had heard about the police violence during the afternoon. She and others
2 around her advised people to stay calm.
3 267. The police marched toward the protesters, screaming at them to “move away.”
4 268. Ms. Klinger told the officers she had nowhere to go, with the police in front of her and
5 protesters behind her.
6 269. The police pushed Ms. Klinger and those around her, hitting them with the broad side of
7 their batons and later using forward jabs with the sharp ends of their buttons.
8 270. The officer in front of her, a tall white male, hit her in the middle of her chest, pushing
9 the wind out of her. She felt intense pain, like she was being crushed.
10 271. The police struck Ms. Klinger and others around her repeatedly. This continued for
11 some minutes.
12 272. Some of the police were so angry that they fogged up their masks. Ms. Klinger saw an
13 elderly man and his wife near her get knocked down.
14 273. The police threw Ms. Klinger to the ground and dragged her several feet. They put her
15 hands in plastic zip-ties, stood her up, and led her to the basement of Sproul Hall to be
16 detained with the other arrestees.
17 274. Ms. Klinger was cuffed for hours in the basement while they took down people’s
18 information. Her handcuffs were particularly tight and cut off her circulation.
19 275. The police transported Ms. Klinger and other protesters to the Oakland jail, where they
20 booked protesters.
21 276. Ms. Klinger was released after several hours.
22 Benjamin Lynch
23 277. During the afternoon raid, Benjamin Lynch was part of the group of protesters facing to
24 the north, two or three people back from the front.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 35
1 278. When the police attacked, the people in front of Mr. Lynch were getting beaten pretty
2 badly. Some of them turned sideways to avoid the brunt of the baton jabs.
3 279. A person to his right in the front had to go back. Mr. Lynch was now in the front.
4 280. The police were both feinting to hit and hitting. Mr. Lynch turned sideways, his right
5 forearm extended slightly outward, to avoid the brunt of the baton blows.
6 281. An unidentified officer in front of him did an overhand swing, swinging his baton
7 downward at a diagonal, striking Mr. Lynch on his right forearm.
8 282. The baton had broken skin, and the wound bled.
9 283. Afterward, Mr. Lynch felt throbbing, intense pain. The area the officer struck swelled
10 outward about an inch above the rest of his arm. Periodically, he would feel a shooting
11 pain go down his forearm.
12 284. Minutes later, he began applying ice to ease the swelling.
13 285. His forearm was very swollen and bruised, and it was difficult to move his forearm due
14 to the pain, and it hurt to touch it. Over the next several days, the swelling spread across
15 and covered much of his forearm. It took a week for the swelling to go down.
16 286. As of the day this action was initially filed on November 29, 2011, he could not rest on
17 his forearm, and it was still tender.
18 Maximilian McDonald
19 287. During the afternoon raid, Maximilian McDonald was part of a group of protesters near
20 the protest tents, facing the steps of Sproul Hall.
21 288. A line of police stood in front of Mr. McDonald and protesters. They pushed forward
22 and started grabbing people and yanking them behind the police line.
23 289. As Mr. McDonald held up his fingers in “peace” signs, an officer shoved him backward
24 with his baton and forced the baton into his neck.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 36
1 Ariella Megory
2 290. During the afternoon raid, Ariella Megory was linking arms in the group of protesters
3 that was adjacent to the protest tents.
4 291. All around her, she saw people getting brutalized. One woman was yanked by her neck
5 and flung aside. Another very petite woman who was willing to leave was yanked by her
6 hair.
7 292. The police advanced toward Ms. Megory. To separate her from her neighbors, the police
8 took their batons and shoved her and her neighbors in the armpits very hard.
9 293. She does not remember exactly how her arms became unlinked. The police shoved her
10 aside so they could get through to the protest tents.
11 294. Ms. Megory left Sproul and returned later that evening.
12 295. During the evening raid, Ms. Megory linked arms with protesters near the protest tents.
13 296. The police attacked her group from behind, pushing them very violently. The officers
14 shouted "Move! Move!" while jabbing Ms. Megory and the men on either side of her
15 with batons.
16 297. The men to each side of her had very bruised arms and bloody knuckles. Ms. Megory
17 had turned sideways and took many of the blows on her arm.
18 Anthony Morreale
19 298. During the evening raid, Anthony Morreale was part of the group of protesters facing
20 north.
21 299. Previously, on his way to the tents, he saw that police had a speaker facing Sproul Hall
22 steps and that the speaker was not working at the time. By the time the police attacked
23 Mr. Morreale and those around him, he had heard no dispersal order and had not seen
24 any police officers make an announcement.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 37
1 300. Before the police made contact with Mr. Morreale and those around him, he saw an old
2 woman plead with police. An officer knocked her flat on her back, and when an old man
3 protested this mistreatment, officers started to jab him in the torso with the ends of their
4 batons.
5 301. Police officers jabbed Mr. Morreale and those around him. He was jabbed in the chest,
6 torso, and stomach.
7 302. The police were yelling “Move!” as they did this, but Mr. Morreale had nowhere to go.
8 303. A tall, white male officer was jabbing a woman to Mr. Morreale’s right, a petite woman
9 about five feet six inches tall, repeatedly with his baton. Mr. Morreale told the officer to
10 stop. In response, the officer in front of Mr. Morreale, a tall black male, jabbed Mr.
11 Morreale repeatedly.
12 304. A few protesters managed to escape by running to the left, between officers and the
13 protesters. Officers hit these individuals too. One officer used the broad side of his baton
14 and clubbed a man directly in his face as he tried to leave.
15 305. At one point, the officers simultaneously started to target protesters’ legs. The officer in
16 front of Mr. Morreale went underneath his leg and struck his testicles. Mr. Morreale
17 reeled from the blow. The officer then grabbed him and threw him to the ground behind
18 the police line.
19 306. An officer jumped and landed on Mr. Morreale’s back.
20 307. An officer handcuffed him and led him to the basement of Sproul Hall.
21 308. He and the other protesters were taken to Glenn Dyer Jail, where they were processed.
22 309. Mr. Morreale was released at about 5:00 am.
23 310. Mr. Morreale was bruised and was sore in his ribs for days after the incident.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 38
1 Liana Mulholland
2 311. During the afternoon raid, Liana Mulholland was linking arms as part of the group of
3 protesters facing north.
4 312. When the police attacked the crowd, Ms. Mulholland turned backward toward the
5 crowd.
6 313. She could not see because her back was turned, but she could feel the batons hitting
7 people in the front through their bodies.
8 314. After this attack, Ms. Mulholland ended up in the front and was linking arms.
9 315. While she and other protesters stood peacefully, the line of police suddenly started
10 ramming people with batons.
11 316. Police rammed batons into Ms. Mulholland's abdomen. She lost her balance and fell
12 down, and her glasses almost fell off.
13 317. She got up again with the help of another protester. She was hit again twice in the right
14 breast and in her abdomen just below her ribs.
15 318. These blows hurt a lot, and she was terrified that she would get badly injured, knowing
16 that an Iraq veteran in the Occupy Oakland movement was hospitalized after getting a
17 lacerated spleen from baton blows.
18 319. Another protester yelled toward her, “Let her through!” Ms. Mulholland left the front of
19 the group.
20 320. As she left the front, she found it extremely difficult to breathe, but another protester
21 accompanied her the whole way. This person sat with her while she rested against a
22 wall. She had to use her asthma inhaler before she could breathe again and was in
23 extreme pain. She asked the person to get painkillers. Other people approached her out
24 of concern.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 39
1 321. The night of November 9, she had a huge bruise on her right upper arm that was dark
2 purple and about four inches across and two inches down.
3 322. Her right side hurt below the ribs. Three days after November 9, a spotted purple bruise
4 appeared there.
5 323. The blow to her abdomen, which was the most painful, showed a light yellow and purple
6 bruise two days later. The pain there felt deeper, as if something internal was bruised.
7 324. For days, she found it difficult to walk, cough, or bend over. Four days later, she still
8 had to move slowly and carefully to avoid the pain.
9 325. On November 21, 2011, Ms. Mulholland was diagnosed with a cracked rib.
10 Ashley Pinkerton
11 326. During the afternoon raid, Ashley Pinkerton was linking arms as part of the group of
12 protesters facing north.
13 327. During the police attack, Ms. Pinkerton screamed at the first sight of people being
14 clubbed by police. She saw officers toward her right strangling and choking a man. She
15 reached toward him. An unidentified officer responded by jabbing her three times in the
16 lower abdomen.
17 328. During these events, Ms. Pinkerton was terrified. She thought the police would badly
18 injure or kill people. She saw other people pulled by their hair and an officer force his
19 knee into the back of one person’s head as the person was laid out on the ground.
20 329. Later on, Ms. Pinkerton was crying and pleading with officers not to attack. While she
21 was pleading, the police attacked the protesters again, and one officer struck Ms.
22 Pinkerton twice in the stomach and a third time in her lower ribcage, knocking the wind
23 out of her.
24 330. She felt like she was going to faint, and moved back into the crowd.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 40
1 331. Ms. Pinkerton sustained blows to her arms, thighs and stomach and had welts, bruises,
2 and extreme soreness.
3 332. That night, she could not sleep because of extreme discomfort and soreness, and she
4 could not get her mind off of the traumatic events of the day.
5 333. The emotional trauma persisted even more than the physical trauma; as of the day this
6 action was initially filed November 29, 2011, she continued to relive the experience and
7 suffer emotional distress.
8 Jessica Schaffer
9 334. During the afternoon raid, Jessica Schaffer was linking arms as part of the group of
10 protesters near the protest tents, facing the steps of Sproul Hall.
11 335. A line of police faced her group wearing riot helmets and wielding batons.
12 336. First, police shouted at students and pushed into them with the broad sides of their
13 batons.
14 337. Almost immediately, the police began forcefully jabbing protesters with their batons.
15 338. One unidentified officer struck Ms. Schaffer directly in her left jaw with a baton.
16 339. Ms. Schaffer was knocked to the ground by the police officers pushing forward.
17 340. Seeing others being beaten who were lying on the ground, Ms. Schaffer covered the
18 back of her skull to prevent further injury.
19 341. Ms. Schaffer stood up and linked arms again with other protesters, this time facing
20 toward the campus. The officers shouted "Move!" and advanced.
21 342. Because protesters stood behind her, Ms. Schaffer had nowhere to go. Police officers
22 proceeded to beat Ms. Schaffer and other protesters around her. One officer struck the
23 left side of Ms. Schaffer's jaw again. When she stood up, she noticed that her tongue was
24 bleeding.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 41
1 343. Ms. Schaffer noticed that her plastic bicycle safety light, which had been attached to her
2 backpack, was on the ground to the front and to the left of her, in between one of the
3 other protesters and the line of officers. Ms. Schaffer crouched down to pick it up, but
4 defendant Officer Roma purposefully kicked it behind the line of officers.
5 344. Ms. Schaffer asked Officer Roma if she could have her light back so she could ride
6 home safely that evening. Roma acknowledged her request but said she would have to
7 get it herself.
8 345. Ms. Schaffer was afraid to retrieve her light because it would have required lunging
9 between the officers and giving them the chance to beat her again. To her left, the
10 officers were beating more protesters.
11 346. The next day Ms. Schaffer’s jaw was sore, and the cut along the left side of her tongue
12 made it difficult to eat.
13 Colleen Mica Stumpf
14 347. During the afternoon raid, Colleen Mica Stumpf was linking arms as part of the group of
15 protesters facing north.
16 348. When police approached, she held up her hands in peace signs.
17 349. An unidentified officer pushed into Ms. Stumpf, while a second officer jabbed her
18 repeatedly with a baton.
19 350. Ms. Stumpf continued to raise peace signs and was pleading, "Please don't hurt us. We
20 are nonviolent. Please don't do this." One of the officers clubbed her forearm to the
21 bone.
22 351. The police ripped a sign out of her hands, and at one point the police pushed into her so
23 hard that they trampled on her feet and almost knocked her over.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 42
1 352. All around her, she saw a woman jabbed repeatedly, a woman knocked into a metal
2 pump in the bushes and beaten further, and a man who was sobbing clubbed repeatedly
3 in the stomach.
4 353. Ms. Stumpf was hurt so badly that she visited Urgent Care that afternoon. She had a
5 large bruise on her right arm covering the entire outer side. She also had a large welt on
6 her forearm, where she was clubbed to the bone. She also had muscle strain around her
7 right shoulder from being yanked by the police, and red marks around her wrist.
8 354. Ms. Stumpf was emotionally traumatized, in a state of shock and depressed after the
9 incident. She was terrified that people who are supposed to protect her could attack
10 students totally unprovoked and could beat her again at any time.
11 Justin Tombolesi
12 355. During the afternoon raid, Justin Tombolesi was linking arms with the group of
13 protesters facing north.
14 356. When the line of police approached, an officer slammed Mr. Tombolesi three times in
15 the stomach and four times in the ribs with a baton.
16 357. The police started pushing into Mr. Tombolesi and those around him and hit him a few
17 more times.
18 358. A second police officer shifted over and was now in front of Mr. Tombolesi. This
19 second officer hit Mr. Tombolesi in the ribs and in the chest several times. The police
20 continued to push against protesters.
21 359. Mr. Tombolesi talked to this second officer, asking why he was doing this and saying
22 that protesters were not trying to harm them.
23 360. A few minutes later, a third officer came up to Mr. Tombolesi and hit him in the ribs
24 about eight more times, and in the chest at least four times.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 43
1 361. Mr. Tombolesi was being pushed by the police toward Sproul Hall, where police were
2 yanking people out to be arrested.
3 362. Mr. Tombolesi saw another protester caught in a headlock being beaten by police. After
4 this protester was released, Mr. Tombolesi linked arms with him and another protester.
5 363. A few minutes later, another officer came up to Mr. Tombolesi and hit him, perhaps ten
6 times, with jabs into his ribcage and his chest.
7 364. During this, Mr. Tombolesi and his neighbor became separated from the rest of the
8 crowd. Here, they were hit many more times. Mr. Tombolesi fell over, and an officer
9 continued to hit him even as he was fallen over.
10 365. After the beatings, Mr. Tombolesi was exhausted and sore. Any contact with his chest,
11 ribs, or stomach would cause paralyzing pain. When walking around, he had to bend
12 over to avoid the pain.
13 366. He had trouble breathing. The night of November 9, he had horrible coughs that lasted
14 all night.
15 367. The brutality he experienced himself and that he witnessed against others left him
16 emotionally traumatized. As of the day this action was initially filed November 29,
17 2011, he had been in shock and did not feel like he could go to class or focus on school.
18 Erick Uribe
19 368. During the afternoon raid, Erick Uribe was linking arms with protesters facing north, in
20 the front.
21 369. The police unleashed an onslaught of blows against the crowd, jabbing people in their
22 stomachs, torsos, legs, and heads. Mr. Uribe was pushed backward and struck full force
23 in his legs, stomach, and chest.
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 44
1 370. At one point, an unidentified officer jabbed a baton into Mr. Uribe’s chest with strong
2 and steady pressure, making it difficult to breathe and move.
3 371. Mr. Uribe saw one protester being hit while on the ground, and so he reached out to try
4 to block the protester from the blows. He was struck hard on the hand and arm by
5 several officers.
6 372. He was also present during the evening raid and was part of a crowd surrounding the
7 protest tents.
8 373. The police marched forward in military-style formation, jabbing their batons forward
9 and yelling “Move! Move!”
10 374. Mr. Uribe witnessed more brutality. He saw protesters grabbed from the crowd, thrown
11 to the floor, and struck numerous times before being arrested. Students who were trying
12 to leave the protest by leaving along the gap between the officers and protesters, would
13 be hit by police, too. One student carrying a camera was dazed and seemed unable to
14 stand. Mr. Uribe and other protesters held him up and luckily he was not struck again.
15 375. When some people were thrown to the ground, Mr. Uribe tried to help them stand up.
16 One time while doing this, he was struck with a powerful baton thrust in the chest,
17 which pushed him back and knocked off his glasses.
18 376. While he tried to pick up his glasses, he was struck again, this time by a baton blow to
19 the mouth that also caused cutting inside of his mouth. At this point, he left.
20 377. As a result of the police attack in the afternoon, a giant welt formed on his left hand. The
21 bump was purple and about size of a golf ball. It took days for the swelling to subside.
22 378. From the attacks that day, his chest was sore for two days. His ribs were tender and
23 bruised. He was heavily bruised in his legs. His right arm was swollen and sore due to
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 45
1 overhead, downward strikes from the officers. His chest and stomach were sore for at
2 least three days.
3 Sachinthya Wagaarachchi
4 379. During the evening raid, Sachinthya Wagaarachchi was linking arms in the northern
5 group of protesters, in the second line from the front.
6 380. An officer said something through a megaphone, but it was inaudible.
7 381. The line of police approached and started hitting protesters, aiming for people’s
8 stomachs and aiming around people’s arms to get at vulnerable parts of people’s bodies.
9 382. Around Mr. Wagaarachchi, people fell. The police grabbed some of the people who fell.
10 383. Mr. Wagaarachchi had nowhere to go: people were behind him, and the police were
11 hitting people in front of him.
12 384. Mr. Wagaarachchi noticed three well-built, tall officers in front of him. Two of the
13 officers visibly looked like they were enjoying it as they hit people.
14 385. The police start hitting Mr. Wagaarachchi. He turned around, and an officer grabbed him
15 by the backpack and shoved him behind the police line. He was thrown about ten feet
16 and fell to the ground.
17 386. The police put metal handcuffs on him and led him to the basement, where he stayed for
18 about two hours.
19 387. While being transported to Glenn Dyer Jail, the officers on the bus told people they
20 would likely stay through the weekend. (The protest was on a Wednesday.)
21 388. He was detained at Glenn Dyer Jail. As he waited in the cell, the pain in his arm got
22 more severe. He was released at about 2:30 am.
23 389. His elbow was swollen outward about a centimeter, and there was swelling on the back
24 of his hand. He could not move his arm for a couple of days after November 9.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 46
1 Dan Wilbur
2 390. During the evening raid, Dan Wilbur was linking arms with protesters facing north, in
3 the front.
4 391. Mr. Wilbur was not aware of any dispersal order.
5 392. The police attacked him and those around him, pushing them back toward the tree, using
6 a mix of strikes with the broad side of their batons and jabs using the end of their batons.
7 393. Mr. Wilbur was pushed backward and moved with the other protesters. He was hit in the
8 stomach a few times.
9 394. One unidentified officer was using jabs against protesters more than the others. When
10 Mr. Wilbur was already near the tree, and also after the protesters he was with were no
11 longer in front of the protest tents, this officer jabbed him hard and directly in the
12 sternum. This hurt tremendously.
13 395. The police seemed intent on getting the protesters off of the grass completely.
14 396. That night, Mr. Wilbur was very tender in the sternum. Merely touching it caused a
15 jabbing pain. It is still sore today. It hurts to lie down and to twist his torso; it is more
16 than just a bruise on the surface. His stomach hurt for a day or so.
17 Taro Yamaguchi-Phillips
18 397. When Taro Yamaguchi-Phillips arrived at about 9:00 pm, he saw that tents were set up
19 on the grass and protesters were gathered around them. The mood was jovial and
20 peaceful, and people were studying and playing music.
21 398. During the evening raid, was linking arms with protesters who were standing around the
22 protest tents.
23 399. There was no ten-minute warning. Mr. Yamaguchi-Phillips heard nothing before the
24 police acted.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 47
1 400. Police were in front of him, as he stood toward the back.
2 401. He heard yelling, and found that police were behind him, having broken through people
3 on the other side of the tents.
4 402. He and the protesters around him were now stuck between two lines of angry riot police
5 with nowhere to go.
6 403. The police began striking Mr. Yamaguchi-Phillips and other protesters with batons.
7 First, they jabbed them in the torso while chanting “Move!” Then the police began
8 swinging their batons overhand at people.
9 404. Around him, people were constantly screaming. Officers began targeting Mr.
10 Yamaguchi-Phillips and swinging their batons on his arm.
11 405. The officers grabbed and pulled at his hair, which was long.
12 406. Defendant Lieutenant Marc DeCoulode grabbed his hair and slammed him to the
13 ground. His glasses flew away.
14 407. Mr. Yamaguchi-Phillips was handcuffed and led to the basement of Sproul Hall. Around
15 him, the restraints varied by race: black and Latina/o people had metal handcuffs, white
16 people had thick plastic handcuffs, and Asian American people had thin plastic
17 handcuffs.
18 408. After being searched and documented, the arrestees were transported to Glenn Dyer Jail.
19 The officers constantly insinuated they would unavoidably be in jail until the next
20 Monday (these events were on Wednesday), that there would be huge bails that no one
21 could afford, and that they would be taken to a rough jail and put in the general
22 population.
23 409. The arrestees were put in a holding cell for several hours. The entire time, he and the
24 other arrestees did not know what they were being arrested for.
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 48
1 410. Mr. Yamaguchi-Phillips was released after 5:00 am.
2 411. He returned to Sproul and could not find his backpack, books, and school supplies. His
3 glasses were smashed.
4 412. For a long time after November 9, 2011, he had bruises and pain in his arm.
5 413. Because of the hair pulling, he had a constant headache and some of his hair fell out.
6 Colleen Young
7 414. During the evening raid, Colleen Young was linking arms with protesters who were
8 standing around the protest tents.
9 415. A line of police attacked protesters on the other side of which Ms. Young was standing.
10 When those protesters collapsed, Ms. Young and those around her turned around and
11 linked arms facing the police. The police walked past the protest tents and started
12 attacking Ms. Young and those around her.
13 416. Ms. Young was wearing her backpack in front of her chest to protect herself from blows.
14 The officer who hit her hit her backpack and aimed around the backpack, jabbing her in
15 her breast, waist, and hips with great force.
16 417. Ms. Young and those around her were pushed to the ground in a big pile, of which she
17 was at the bottom.
18 418. Ms. Young screamed for help. People trying to help her were pushed away by police so
19 they could not help her. She was on the steps near the concrete and was worried she
20 would get her head crushed.
21 419. She felt pain afterward in her ribs and in her back. She suffered contusions on her right
22 breast, right hip, upper and lower legs, and ankle.
23
24
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 49
1 Margaret Zhou
2 420. During the evening raid, Margaret Zhou linked arms with protesters who were closer to
3 and surrounding the protest tents.
4 421. Protesters yelled that the police had attacked protesters in the north and were now
5 tearing down protest tents. There were a lot of people screaming and being thrown down
6 to the ground behind her.
7 422. In front of her, the police were trying to get past her and to the protest tents. An
8 unidentified officer jabbed her with a baton, aiming at and hitting her in her breast area.
9 She was crying and holding up peace signs while they were hitting her.
10 423. The police reached the protest tents and tore them down, and Ms. Zhou and other
11 protesters started to scatter.
12 424. The police closed off the grassy area and formed a line to block it off from the
13 protesters. Ms. Zhou linked arms with other protesters facing the police.
14 425. The police were telling protesters to leave. At this time, the protesters were not standing
15 on the grassy area.
16 426. The police then started jabbing and hitting people again. Ms. Zhou was being hit by
17 defendant Officer Garcia. The police were targeting sensitive parts of her body very fast
18 and at unexpected moments, and pointing people out for arrest.
19 427. After this attack, protesters got on their feet and continued to stand facing the police on
20 Sproul. Once supporters from Occupy Oakland and Occupy San Francisco arrived and
21 there were thousands of people in Sproul, the police retreated.
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 50
1 COUNT ONE Violation of First Amendment of the United States Constitution 2 (42 U.S.C. §1983)
3 428. The allegations of the preceding paragraphs are repeated as if fully set forth herein.
4 429. Upon information and belief, on November 9, 2011 defendant Chancellor Birgeneau,
5 through a chain of command that consisted of defendant Executive Vice Chancellor and
6 Provost George Breslauer, defendant University of California Police Department
7 (UCPD) Chief Mitchell Celaya, and defendant UCPD Lieutenant Eric Tejada, ordered
8 the police to attack peaceful protesters, thus causing the shocking, unconscionable
9 excessive force and false arrests against the twenty-nine plaintiffs to this action.
10 430. Beginning October 24, 2011, defendants Chancellor Birgeneau, Executive Vice
11 Chancellor and Provost George Breslauer, UCPD Chief Mitchell Celaya, Vice
12 Chancellor for Student Affairs Harry LeGrande, Associate Chancellor Linda Williams,
13 Vice Chancellor for Administration and Finance John Wilton, and Associate Vice
14 Chancellor for Public Affairs and Communications Claire Holmes, planned a police
15 response to the peaceful protest encampment planned for November 9, 2011.
16 431. These defendants’ authorization of violent police action was motivated by their
17 opposition to the content of the plaintiffs’ speech. The protest of November 9, 2011
18 opposed defendant Birgeneau’s openly-espoused policies of tuition hikes and
19 privatization, policies that Birgeneau’s hand-picked staff—including defendants
20 Breslauer, LeGrande, Williams, Holmes, Wilton and Celaya—were committed to
21 implementing.
22 432. The “no camping” policy was a pretext for violating the plaintiffs’ civil rights. There
23 was no camping at the time of the events leading to this action.
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 51
1 433. In May 2010, the defendants Birgeneau, Breslauer, LeGrande, Williams, Holmes and
2 Celaya, while in the same administrative positions they would hold on November 9,
3 2011, tolerated a long-term encampment that had a political message they agreed with:
4 opposition to an anti-immigrant law in Arizona.
5 434. The defendants Birgeneau, Breslauer, Celaya and Tejada ordered both of the forcible
6 assaults against protestors because of their opposition to the demands of the protest.
7 435. The defendants LeGrande, Williams, Wilton, and Holmes concurred in, witnessed and
8 did not stop the forcible assaults because of their opposition to the demands of the
9 protest.
10 436. The defendants’ orders to break up the November 9 protest by force discriminated
11 against the plaintiffs on the basis of the content of their speech and thus violated their
12 right to freedom of speech as protected by the First Amendment to the United States
13 Constitution.
14 COUNT TWO 15 Excessive Force in Violation of Fourth Amendment of the United States Constitution (42 U.S.C. §1983) 16
17 437. The allegations of the preceding paragraphs are repeated as if fully set forth herein.
18 438. Upon information and belief, on November 9, 2011 defendant Chancellor Birgeneau,
19 through a chain of command that consisted of defendant Executive Vice Chancellor and
20 Provost George Breslauer, defendant University of California Police Department
21 (UCPD) Chief Mitchell Celaya and defendant UCPD Lieutenant Eric Tejada, ordered
22 the police to attack peaceful protesters, thus causing the shocking, unconscionable
23 excessive force against the twenty-nine plaintiffs in this action.
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 52
1 439. Beginning October 24, 2011, defendants Chancellor Birgeneau, Executive Vice
2 Chancellor and Provost George Breslauer, UCPD Chief Mitchell Celaya, Vice
3 Chancellor for Student Affairs Harry LeGrande, Associate Chancellor Linda Williams,
4 Vice Chancellor for Administration and Finance John Wilton, and Associate Vice
5 Chancellor for Public Affairs and Communications Claire Holmes, planned a violent
6 police response to the peaceful protest encampment planned for November 9, 2011.
7 They concurred in, witnessed and did not stop the forcible assaults against plaintiffs.
8 440. As specified in detail above, the named defendant individual police officers—Lieutenant
9 Eric DeCoulode and Officers Samantha Lachler, Chavez, Garcia, King, Obichere, and
10 Roma—and the defendants Does 1-100 used excessive force in carrying out the orders
11 to clear the tents.
12 441. The defendant officers attacked people for purposes that had no reasonable relation to
13 preventing camping. They attacked many people even after the police had secured
14 access to and/or destroyed the protest tents.
15 442. The defendants' above-described conduct violated the plaintiffs' rights under the Fourth
16 Amendment to the United States Constitution to be free from excessive force.
17 COUNT THREE 18 False Arrest (“Seizure”) in Violation of Fourth Amendment of the United States Constitution 19 (42 U.S.C. §1983)
20 443. The allegations of the preceding paragraphs are repeated as if fully set forth herein.
21 444. Upon information and belief, on November 9, 2011 defendant Chancellor Birgeneau,
22 through a chain of command that consisted of defendant Executive Vice Chancellor and
23 Provost George Breslauer, defendant University of California Police Department
24 (UCPD) Chief Mitchell Celaya and defendant UCPD Lieutenant Eric Tejada, ordered
PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 53
1 the police to attack peaceful protesters, thus causing the false arrests of the plaintiffs
2 Francisco Alvarado-Rosas, Julie Klinger, Anthony Morreale, Sachinthya Wagaarachchi,
3 and Taro Yamaguchi-Phillips in violation of their Fourth Amendment rights.
4 445. Beginning October 24, 2011, defendants Chancellor Birgeneau, Executive Vice
5 Chancellor and Provost George Breslauer, UCPD Chief Mitchell Celaya, Vice
6 Chancellor for Student Affairs Harry LeGrande, Associate Chancellor Linda Williams,
7 Vice Chancellor for Administration and Finance John Wilton, and Associate Vice
8 Chancellor for Public Affairs and Communications Claire Holmes, planned a violent
9 police response to the peaceful protest encampment planned for November 9, 2011 that
10 led to the arrests. They concurred in, witnessed and did not stop the false arrests of
11 plaintiffs Alvarado-Rosas, Klinger, Morreale, Wagaarachchi, and Yamaguchi-Phillips.
12 446. The five plaintiffs who were arrested were not camping and were violating no laws or
13 regulations.
14 447. These five plaintiffs had not heard any order to leave. They were physically unable to
15 leave the scene.
16 448. These five plaintiffs were held in Glenn Dyer Jail for several hours.
17 449. None of these five plaintiffs were ever charged with any wrongdoing stemming from
18 November 9, 2011.
19 450. On April 16, 2012, the District Attorney issued a public statement dismissing the
20 charges against the vast majority of November 9 protesters.
21 451. The above-cited police actions constitute false arrest (“Seizure”) in violation of the
22 plaintiffs’ Fourth Amendment rights under 42 U.S.C. sec. 1983.
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 54
1 JURY DEMAND
2 452. Plaintiffs hereby demand a jury trial in this action.
3
4 PRAYER
5 WHEREFORE, plaintiffs pray for relief, as follows:
6 1. For general damages of $7.5 million;
7 2. For punitive damages and exemplary damages of $7.5 million;
8 3. For reasonable attorney's fees pursuant to 42 U.S.C. §1988;
9 4. For costs of suit herein incurred; and
10 5. For such other and further relief as the Court deems just and proper.
11 By Plaintiffs’ Attorneys, SCHEFF, WASHINGTON & DRIVER, P.C. 12
13 BY: _/s/ Ronald Cruz______Ronald Cruz (State Bar No. 267038) 14 Shanta Driver (Michigan P-65007)* 645 Griswold, Suite 1817 15 Detroit, Michigan 48226 (510) 384-8859 (Ronald Cruz) 16 (313) 585-3637 (Monica Smith)
17 Dated: March 25, 2013 18 *Admitted pro hac vice 19
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 55
1 CERTIFICATION OF INTERESTED ENTITIES OR PERSONS
2 Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named
3 parties, there is no such interest to report.
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5 BY: _/s/ Ronald Cruz______Ronald Cruz (State Bar No. 267038) 6 March 25, 2013
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PROPOSED SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND DAMAGES 4:11-cv-05719-YGR 56
1 RONALD CRUZ, State Bar No. 267038 Scheff, Washington & Driver, P.C. 2 1985 Linden St. Oakland, CA 94607 3 (510) 384-8859 [email protected]
4 SHANTA DRIVER, Michigan Bar No. P65007* SCHEFF, WASHINGTON & DRIVER, P.C. 5 645 Griswold St., Suite 1817 Detroit, MI 48226 6 Phone: 313-963-1921 Fax: 313-963-7587 [email protected] 7 *Admitted pro hac vice
8 Attorneys for Plaintiffs
9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 YVETTE FELARCA, et al. CASE NO.: 4:11-cv-05719-YGR 11 Plaintiffs, [PROPOSED] ORDER re 12 PLAINTIFFS’ MOTION FOR vs. LEAVE TO AMEND FIRST 13 AMENDED COMPLAINT ROBERT J. BIRGENEAU, et al., 14 Defendants. 15 ______
16 The plaintiffs’ Motion for Leave to Amend First Amended Complaint is hereby
17 GRANTED in regards to (1) adding defendant Eric Tejada, (2) adding Marc DeCoulode,
18 and (3) stating a Count of false arrest in violation of the Fourth Amendment.
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20 Dated: ______, 2013 ______21 Honorable Yvonne Gonzalez Rogers United States District Court Judge 22
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