SAN FRANCISCO -- Excessive police force violated the First Amendment rights of Occupy Oakland protesters by creating a "chilling effect" for potential participants, the American Civil Liberties Union argued Wednesday before a federal judge in San Francisco.
ACLU staff attorney Linda Lye said Oakland police twice violated their own crowd control policy in dealing with large Occupy Oakland demonstrations, and sought a preliminary injunction against the Oakland Police Department to bring it into accordance with its own policies and protesters' constitutional rights.
"That's an extraordinary remedy to me," U.S. District Judge Richard Seeborg said of the proposed injunction. While a court does sometimes need to step in when a police force may be violating the constitutional rights of its citizens, he said, "the record's got to be more extensive than two instances."
Seeborg took the request under consideration and will issue a ruling later.
The two instances Lye cited were Oct. 25 and Nov. 3. On Oct. 25, Oakland police, with mutual aid from more than a dozen other agencies, evicted an Occupy Oakland encampment forcibly from Frank Ogawa Plaza.
That evening protesters returned to the plaza, but were kept at bay by police barricades defended with volleys of tear gas, smoke grenades, and bean bag rounds.
A week later, on Nov. 2, thousands of protesters converged on downtown Oakland throughout the day, marching to the Port of Oakland in the evening, shutting it down.
Late that night and into the next morning, protesters in Frank Ogawa Plaza occupied a closed Travelers Aid Society building adjacent to the plaza. Police arrived shortly after, and a chaotic confrontation broke out, where police shot tear gas rounds at protesters, and some protesters broke store windows on Broadway and barricaded streets with burning trash cans.
Lye argued that on those two occasions, Oakland police broadly used force against large groups of protesters, including tear gas and other less-than-lethal munitions, rather than targeting individuals who may have been breaking the law.
"Even the small chance if you go to a protest and come home with a fractured skull or a ruptured spleen" is enough to dissuade someone from attending, Lye said, referring to two instances of serious injury to protesters in each of those demonstrations.
On Oct. 25, former U.S. Marine Scott Olsen suffered a fractured skull when he onlookers said he hit by a police projectile. On Nov. 3, U.S. Army veteran Kayvan Sabeghi required surgery after he was struck with batons by officers.
Seeborg did indicate that he may be swayed by arguments that by deploying force broadly against large groups of protesters, their First Amendment rights had been violated by deterring them from attending future protests.
But Gregory Fox, an attorney representing the City of Oakland, said there was little evidence that protesters were being kept away because of police action.
"Any argument that they're being chilled is purely speculation," Fox said.
Fox indicated that in the scope of the Occupy Oakland demonstrations, which have been ongoing almost daily since Oct. 10, many actions have gone on peacefully with minimal police presence, including the general strike and Port action.
Fox also argued that Oakland may not be responsible for violations to its crowd control policy, as other agencies providing mutual aid during the demonstrations may have violated the city's policies because they are not trained in Oakland's procedures and not obligated to follow them.
"Other agencies may be using munitions and tactics that aren't in our policy," Fox said.
Fox also suggested that the nature of Occupy Oakland may be deterring participants, referring to a "chilling effect by Occupy Oakland itself."
"There's been a homicide when the encampment was here," Fox said, referring to a Nov. 10 shooting at Frank Ogawa Plaza, just outside of the Occupy Oakland encampment. Police later determined that the shooter and the victim in that case both had been connected to the encampment.
Fox also said that other instances of violence, including vandalism and fires set on the morning of Nov. 3, might be deterring people from participating in future protests.
Seeborg seemed to agree with the defense that there was not a sufficient record to indicate a systemic breakdown by the Oakland police, but acknowledged there was no clear rule as to how many violations had to occur before he could consider the issue systemic.
He also at times challenged the necessity of such a ruling, wondering aloud whether it would be frivolous to remind Oakland police that they needed to follow their own crowd control procedures.
But Lye said that since Oakland has asserted since those actions that its conduct was mostly within its policies and lawful, there was a suggestion that it would repeat that conduct. She said that the threat of continued police action was keeping many protesters away from further demonstrations.
"There's no dispute why they are staying away," she said of the five protesters who filed the lawsuit against Oakland.
The five plaintiffs are Timothy Campbell, who says he was hit in the leg with a beanbag projectile by police on Nov. 2; National Lawyers Guild legal observer Marcus Kryshka; Marc McKinnie and Michael Siegel, who say they were hit with projectiles on Oct. 25; and Kerie Campbell, who says she would like to include her children in demonstrations but fears for their safety.