Police Being Sued for Violent Crackdown on Occupy Oakland (AlterNet):
The National Lawyers Guild and the American Civil Liberties Union of Northern California filed suit on Monday against the Oakland Police Department, and any local agencies assisting them, for its widespread use of excessive force against Occupy Oakland protesters on October 25 and during the night of November 2.
That OPD has shown contempt for the rule of law in its violent crackdowns on dissent, and departed dramatically from what the department itself views as best practices for balancing public safety and free speech, is evident from the nature of the lawsuit: the civil rights attorneys are trying to compel OPD to follow its own crowd-control policy.
“Generally, the issue with excessive force cases is whether the force applied was reasonable under the circumstances,” Linda Lye, an ACLU staff attorney on the case told AlterNet. “And law enforcement will often argue, ‘well, we needed to apply the force in a given circumstance because it was necessary to achieve our legitimate law enforcement goals.’ Here, when OPD is systematically violating specific provisions in its own crowd control policy, there can be no argument that they need to do this, because the guildelines already represent what OPD thinks is reasonable in these circumstances.” She added: “It’s outrageous.”
The guidelines were drawn as part of a settlement of a 2003 suit – also filed by the Lawyers Guild and ACLU NorCal – stemming from a case in which OPD used an abundance of violence against peaceful protesters demonstrating against the invasion of Iraq. “The crowd control policy represents even OPD’s view of best practices,” said Lye. She explained that they detail exactly ”when you can declare an assembly unlawful, when you can require a group of people assembled together to disperse, and how you go about doing that.”
Just about everything I witnessed on October 25 and November 2 violated those guidelines. Police repeatedly fired teargas, “less-lethal” projectiles and flash-bang grenades into a sea of protesters, actions they later claimed were justified because their officers were being hit by objects thrown by a few individuals in the crowd.
But the guidelines clearly state that less-lethal munitions “may never be used indiscriminately against a crowd or group of persons, even if some members of the crowd or group are violent or disruptive.”
F. When an Unlawful Assembly May Be Declared
1. The definition of an unlawful assembly has been set forth in Penal Code Section 407 and interpreted by court decisions. The terms, “boisterous” and “tumultuous,” as written in Penal Code Section 407, have been interpreted as “conduct that poses a clear and present danger of imminent violence” or when the demonstration or crowd event is for the purpose of committing a criminal act.
The police may not disperse a demonstration or crowd event before demonstrators have acted illegally or before the demonstrators pose a clear and present danger of imminent violence.
2. The mere failure to obtain a permit, such as a parade permit or sound permit, is not a sufficient basis to declare an unlawful assembly. There must be criminal activity or a clear and present danger of imminent violence.
3. The fact that some of the demonstrators or organizing groups have engaged in violent or unlawful acts on prior occasions or demonstrations is not grounds for declaring an assembly unlawful.
4. Unless emergency or dangerous circumstances prevent negotiation, crowd dispersal techniques shall not be initiated until after attempts have been made through contacts with the police liaisons and demonstration or crowd event leaders to negotiate a resolution of the situation so that the unlawful activity will cease and the First Amendment activity can continue.
5. If after a crowd disperses pursuant to a declaration of unlawful assembly and subsequently participants assemble at a different geographic location where the participants are engaged in non-violent and lawful First Amendment activity, such an assembly cannot be dispersed unless it has been determined that it is an unlawful assembly and the required official declaration has been adequately given.
4. Non Hand–Held Crowd Control Chemical Agents
a. Crowd control chemical agents are those chemical agents designed and intended to move or stop large numbers of individuals in a crowd situation and administered in the form of a delivery system which emits the chemical agent diffusely without targeting a specific individual or individuals.
b. Chemical agents can produce serious injuries or even death. The elderly person or infant in the crowd or the individual with asthma or other breathing disorder may have a fatal reaction to chemical agents even when those chemical agents are used in accordance with the manufacturer’s recommendations and the Department’s training. Thus, crowd control chemical agents shall be used only if other techniques, such as encirclement and multiple simultaneous arrest or police formations, have failed or will not accomplish the policing goal as determined by the Incident Commander.
c. Members shall use the minimum amount of chemical agent necessary to obtain compliance.
d. Indirect delivery or crowd dispersal spray and/or discharge of a chemical agent shall not be used in demonstrations or other crowd events without the approval of a supervisor or command officer.
e. Chemical agents shall not be used for crowd control or dispersal without first giving audible warning of their imminent use and giving reasonable time to the crowd, media, and observers to disperse.
f. If chemical agents are contemplated in crowd situations, OPD shall have medical personnel on site prior to their use and shall make provision for decontamination and medical screening to those persons affected by the chemical agent(s).
5. Hand-thrown chemical agents or pyrotechnic gas dispersal devices
a. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall not be used for crowd control or crowd dispersal without the approval of a supervisor or command officer.
b. The use of hand-thrown chemical agents or pyrotechnic gas dispersal devices may present a risk of permanent loss of hearing or serious bodily injury from shrapnel. Said devices shall be deployed to explode at a safe distance from the crowd to minimize the risk of personal injury and to move the crowd in the direction that will accomplish the policing objective.
c. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall not be used for crowd control without first giving audible warnings to the crowd and additional reasonable time to disperse.
d. Hand-thrown chemical agents or pyrotechnic gas dispersal devices shall be used only if other techniques such as encirclement and mass arrest or police formations have failed or will not accomplish the policing goal as determined by the Incident Commander.