motion to join oakland nsa and 2011 crowd control lawsuits

8/3/2019 Motion to Join Oakland NSA and 2011 Crowd Control Lawsuits

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ADMINISTRATIVE MOTION RE RELATED CASES

DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH

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Alan L. Schlosser (#49957)Michael T. Risher (#191627)Linda Lye (#215584)ACLU Foundation of Northern California,39 Drumm StreetSan Francisco, CA 94111

(415) 621-2493; (415) [email protected], [email protected], [email protected]

NATIONAL LAWYERS GUILDRACHEL LEDERMAN, SBN 130192Rachel Lederman & Alexsis C. Beach,Attorneys at Law558 Capp StreetSan Francisco, CA 94110(415) 282-9300; fax (415) [email protected]

Attorneys for plaintiffs TIMOTHY SCOTT CAMPBELL ET AL.(additional counsel on next page)

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

DELPHINE ALLEN, et al.,

Plaintiffs

vs.

CITY OF OAKLAND, et al.,

Defendants.

MASTER FILE No. C-00-4599-TEH

ADMINISTRATIVE MOTION TO CONSIDERWHETHER CASES SHOULD BE RELATED(Civ. L.R. 3-12)AND PROPOSED ORDER;DECLARATION IN SUPPORT

APPLICATION FOR TRO PENDING

(Timothy Scott Cam pbell et al. v. City of Oakland,et al., ("Campbell") No. C 11-05498 RS)


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CAROL SOBEL, SBN 84483429 Santa Monica Blvd #550Santa Monica, CA 90401-3439(310) 393-3055; fax 310 [email protected]

BOBBIE STEIN SBN 113239503 Dolores Street, #201San Francisco, CA 94110-1564(415) 255-0301; fax (510) [email protected]

R. MICHAEL FLYNN SBN 258732Flynn Law Office170 Columbus Street, Ste 300San Francisco, CA 94133(415) 989-8000 x 24; fax (415) [email protected]

Attorneys for plaintiffs CAMPBELL ET AL.JAMES B. CHANIN (# 76043)JULIE M. HOUK (# 114968)Law Offices of James B. Chanin3050 Shattuck AvenueBerkeley, California 94705510) 848-4752; FAX: (510) [email protected]

Of Counsel to Plaintiffs

ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE

RELATED (Civ. L.R. 3-12)

APPLICATION FOR TRO PENDING

(Timothy Scott Campbell et al. v. City of Oakland, et al., ("Campbell") No. C 11-05498RS)

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, pursuant to Civil Local Rule 3-12, plaintiffs in

Timothy Scott Campbell et al. v. City of Oakland, et al., ("Campbell") Case No. C

11-05498 RS give notice that this case, filed today, is related to the cases listed below thatare currently pending, or have been before, Judge Thelton Henderson of the United States
mailto:[email protected]:[email protected]:[email protected]


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District Court of the Northern District of California.

URGENT NEED FOR DECISION ON RELATED CASE MOTION

Campbell is a suit challenging the Oakland Police Department's using excessive

force on peaceful protesters in violation of OPD's Crowd Management/Crowd ControlPolicy. Plaintiffs in Campbell seek a Temporary Restraining Order to prevent the

Oakland Police Department from using excessive force on peaceful protesters at

assemblies and demonstrations that are highly likely to occur later today. Particularly

because relief from this Court is necessary on a very short time frame to avoid irreparable

harm to constitutional rights, the interests of justice and the criteria under the Local Rules

weigh strongly in favor of conducting these proceedings with a judge who already has

familiarity with the Oakland Police Department and its Crowd Management/Crowd

Control Policy.

WHY THE CASES SHOULD BE RELATED

The following cases have been before Judge Henderson:

1. Spalding et al v. City of Oakland et al., C11-02867 TEH;

2. Coles, et al. v. City of Oakland and Local 10, International Longshore and

Warehouse Union, et al v. City of Oakland, Nos. C03-2961 and 2962 TEH;3. Delphine Allen, et al. v. City of Oakland, et al., Master File No 00-4599 TEH.

Delphine Allen was the earliest filed case and Coles and Local 10, and Spalding were

each related toDelphine Allen by order of Judge Henderson. Plaintiffs move to relate the

instant case to these three cases, and hereby file this Administrative Motion to Consider

Whether Cases Should be Related. These cases are related because they involve many of

the same parties and policies of the Oakland Police Department, and because there will be

an unduly burdensome duplication of labor and expenses if they are conducted by


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different judges, as well as the possibility of conflicting results. This is apparent from a

review of the four cases:

1. The Spalding case was filed on June 13, 2011, and is currently pending before

Judge Henderson. The Spalding case arose out of the actions of the Oakland PoliceDepartment in response to a political rally and march on November 5, 2010. The

Spalding Plaintiffs claim that the OPD, acting jointly with mutual aid agencies, acted

unlawfully and unconstitutionally in interfering with the march, thereby depriving the

protestors of their First and Fourth Amendment rights. At the heart of that case is the

claim that the OPD actions violated the OPD Crowd Management/Crowd Control Policy

("Crowd Control Policy") adopted in 2004 as part of a settlement in two of the other

related cases, Coles and Local 10, and that these violations of the Policy and of protestors'

constitutional rights has been condoned and ratified by the top officials of the City and

the OPD. The case seeks injunctive relief and damages to bring a halt to these practices.

The same Crowd Control Policy is at the heart of Plaintiffs' claims in the instant case,

which alleges that OPD engaged in wholesale violations of the Policy with respect to

Occupy Oakland protests on October 25, 2011 and November 2-3, 2011. Thus, many of

the same legal and constitutional issues are common to both cases. Furthermore, whilethe cases were prompted by different protests and incidents, the discovery and factual

development of the cases will involve many of the same supervisory OPD officials and

many of the same OPD internal procedures and policies.

2. Coles and Local 10 arose from OPD shootings of demonstrators and longshoremen

with wooden bullets and other "less lethal" projectiles during a 2003 antiwar

demonstration. On December 24, 2004, Judge Henderson approved a settlement in those

cases, incorporating into the court's order the Crowd Control Policy discussed above.


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This detailed and comprehensive Policy was made into an OPD Training Bulletin and the

settlement order required all members of OPD to be trained on the Policy on an ongoing

basis. The court retained jurisdiction to enforce the terms of the settlement, including the

Policy, for three years following the date of the Stipulation and Order, ( December, 2004to December, 2007). The Agreement between the parties remains in full force and effect.

4. TheDelphine Allen action involved claims of a repeated pattern and practice of

civil rights violations by OPD officers which were authorized, ratified, condoned and/or

encouraged by high ranking OPD supervisors. The parties in the Delphine Allen action

reached a non-monetary settlement which is subject to the continuing supervision of

Judge Henderson and court-appointed monitors. The non-monetary settlement agreement

includes remedial action relevant to the instant case, including, the training, control,

supervision and discipline of OPD Officers with respect to use of force and revisions of

OPD policy with respect to reports, investigations and discipline. These reforms are still

in the process of being implemented.

As in all these cases, Plaintiffs in the instant matter claim that the City of Oakland and its

police officers have engaged in a pattern and practice of misconduct that was encouraged,authorized and/or condoned by high-ranking City of Oakland officials and/or police

department managers and supervisors. Both Spalding and the instant case allege

violations of the constitutional rights of protestors, and ongoing violations of the Crowd

Control Policy. Plaintiffs in both cases are seeking remedial relief to enforce the Policy

and to protect constitutional rights with regard to policing of demonstrations and crowd

events by members of the OPD. Unless these cases are related,, there is the substantial

likelihood that there would not only be a significant duplication of effort, waste of


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judicial resources and unnecessary expense, but there would also be the possibility of

inconsistent results which could adversely impact the reforms agreed to, and still to be

fully implemented, by the City of Oakland in the Delphine Allen action, as well as the

reforms agreed to, and now being violated, in the Coles and Local 10 actions.Therefore, plaintiffs respectfully submit that the instant case should be related to the

Delphine Allen action and the cases previously related thereto.

DATED: November 14, 2011 Respectfully submitted,

Alan L. SchlosserMichael T. RisherLinda Lye

ACLU Foundation of Northern CaliforniaNATIONAL LAWYERS GUILDRACHEL LEDERMANCAROL SOBELBOBBIE STEINR. MICHAEL FLYNN

JAMES B. CHANINJULIE M. HOUKLaw Offices of James B. Chanin

___________________________By: RACHEL LEDERMANAttorneys for plaintiffs Campbell et al.


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DECLARATION OF ALAN SCHLOSSER IN SUPPORT OF ADMINSTRATIVE

MOTION TO CONSIDER WHETHER CASE SHOULD BE RELATED

I, ALAN L. SCHLOSSER, DECLARE:

1. I am the legal director of the American Civil Liberties Union of Northern California. Ihave personal knowledge of the facts contained in the declarations, and, if called as

witness, am competent to testify to those facts.

2. I am counsel to plaintiffs Plaintiffs Kerie Campbell, Marcus Kryshka, and American

Civil Liberties Union of Northern California in an action being filed today, titled

Campbell, et al. v. City of Oakland, et al. Campbell is a suit challenging the Oakland

Police Departments using excessive force on peaceful protesters in violation of OPDs

Crowd Management/Crowd Control Policy. Plaintiffs in Campbell seek a Temporary

Restraining Order to prevent the Oakland Police Department from using excessive force

on peaceful protesters at assemblies and demonstrations that are highly likely to occur

later today.

Relationship of Campbell to Earlier Filed Matters

3. Campbell is related to the following matters that are currently pending or have been

before Judge Thelton Henderson of the United States District Court for the NorthernDistrict of California: (1) Spalding et al v. City of Oakland et al., C11-02867 TEH; (2)

Coles, et al. v. City of Oakland and Local 10, International Longshore and Warehouse

Union, et al v. City of Oakland, Nos. C03-2961 and 2962 THE; and (3)Delphine Allen, et

al. v. City of Oakland, et al., Master File No 00-4599 TEH.

4. I was one of the attorneys for the plaintiffs in Local 10, International Longshore and

Warehouse Union, et al v. City of Oakland, No. 2962 THE. I, along with my co-counsel

Rachel Lederman, was the plaintiffs attorney primarily responsible for drafting and


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negotiating with defendants a new Crowd Management/Crowd Control policy, which was

adopted by the City of Oakland and OPD in a settlement agreement reached by the parties

which resolved the injunctive and declaratory relief claims in that case and in Coles, et al.

v. City of Oakland, No. C03-2961 TEH.5. The Crowd Management/Crowd Control Policy adopted in the Local 10 settlement lies

at the heart of the newly-filed Campbell matter.

A Stipulation Was Not Feasible in Light of the Short Time Frame and Need for Urgent

Action

6. As noted above, Plaintiffs in Campbell are filing papers today seeking a temporary

restraining order. I have informed counsel for the City of Oakland that Plaintiffs in

Campbell would be seeking to relate this matter to Spalding, Allen, andLocal 10 but

given the short timeframe it was not possible to obtain a stipulation.

7. On November 14, 2011, I telephoned Gregory Fox of Bertrand, Fox and Eliot. Mr. Fox

is outside counsel for the City of Oakland on police-related matters. At a November 8,

2011 meeting at the Police Department headquarters, Interim Chief of Police Howard

Jordan told some of plaintiffs attorneys including Rachel Lederman, Bobbie Stein,

James Chanin and myself that Mr. Fox (who was also at the meeting ) should be ourcontact person with respect to the issues we raised about OPD treatment of Occupy

protestors. I spoke with Mr. Fox at approximately 9:00 am today and informed him that

later today, Plaintiffs would be filing in the United States District Court for the Northern

District of California a Complaint against the City of Oakland and Interim Chief Jordan,

challenging their use of excessive force against Occupy Oakland protesters and that we

would be seeking at the same time a Temporary Restraining Order and Order to Show

Cause Why a Preliminary Injunction Should Not Issue. I also informed Mr. Fox that we


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would be filing a Notice of Related Case at the same time. Mr. Fox said that he was

immediately going to call on their cellphones Randolph Hall, Chief Assistant City

Attorney and Rocio Fierro, Supervising Deputy City Attorney/Police Counsel and

transmit the details of my message.8. After speaking with Mr. Fox, I then immediately called Mr. Hall and Ms. Fierro on

their direct lines at their office. I got their voicemail message. I also called Mr. Halls

assistant, Sophia Lee, but also got a voicemail. I left detailed messages for both Mr. Hall

and Ms. Fierro that repeated all the details that I had given to Mr. Fox about our filing,

including that Plaintiffs would be filing this related case motion, and I gave them my cell

phone number to call if they wanted to discuss this matter further.

Dated: November 14, 2011

________________________________


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RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related

(Civil L.R. 3-12) having been filed, as the judge assigned to the earliest filed case below

that bears my initials, I find that the more recently filed case that I have initialed beloware related to the case assigned to me, and such case shall be reassigned to me.

C-00-4599-TEHDelphine Allen, et al v. City of Oakland, et al

C-11-2867- TEH Spalding, et al v. City of Oakland, et al.

C-11-05498 RS Campbell, et al. v. City of Oakland, et al. ___

I find that the above case is related to the cases assigned to me.

Dated: ______________________________

Judge Thelton E. Henderson

motion to join oakland nsa and 2011 crowd control lawsuits

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