N.D.Cal.: “chemical agents, less lethal projectiles such as rubber bullets and flashbang grenades” against peaceful protesters states enough to stay in court

Plaintiffs were alleged peaceful protesters in Oakland claiming excessive force was used against them: “chemical agents, less lethal projectiles such as rubber bullets and flashbang grenades.” They provided video evidence. They stated enough of a claim at this point to stay in court. Anti Police-Terror Project v. City of Oakland, 2020 U.S. Dist. LEXIS 143045 (N.D. Cal. Aug. 10, 2020):

The types of force that was used by OPD against protesters in this case — chemical agents, less lethal projectiles such as rubber bullets and flashbang grenades — constitute significant force. See Young, 655 F.3d. at 1161 (pepper spray is “‘intermediate force’ that, while less severe than deadly force, nonetheless present a significant intrusion upon an individual’s liberty interests.”); Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (holding that beanbag projectile “akin to a rubber bullet” is not deadly force but is “much greater than the force” associated with the use of pepper spray and is “permissible only when a strong governmental interest compels the employment of such force”). Consequently, such force must be justified by a significant government interest. Based on the current record, there are serious questions as to whether that standard is met.

Plaintiffs have submitted sworn declarations and video footage showing that some of the force used by OPD officer, or OPD’s mutual aid partners, was aimed at peaceful protestors who did not pose a threat to the officers or the public at large and were not engaging in illegal activity. As to a number of the incidents described in Plaintiffs’ declarations, it is not clear that the crowd was refusing to disperse as there is evidence that they may have been given insufficient time to respond or no warnings at all, or they could not hear the warnings. There is also evidence that some demonstrators were unable to disperse in order to comply with officers’ commands and/or to avoid violating curfew because they were trapped in an area with no accessible means of egress.

Defendants have countered with evidence that there was looting and violence occurring in Oakland during this period. They have not, however, offered evidence that links the incidents Plaintiffs contend involved inappropriate officer conduct with the looting and violence that is described in the Police Activity Logs. Moreover, the Court has carefully reviewed the logs and finds that as to at least some of the aggressive crowd control tactics described in Plaintiffs’ declarations and shown in the video footage, the timing and locations of the incidents on the logs does not match the timing and locations of the events described by Plaintiffs and therefore does not establish that the force used by OPD officers was reasonable as to those incidents.

Therefore, the Court finds that Plaintiffs have demonstrated that there are serious questions going to the merits with respect to Plaintiffs’ Fourth Amendment excessive force claim.

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