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Motion to Join Oakland NSA and 2011 Crowd Control Lawsuits

Motion to Join Oakland NSA and 2011 Crowd Control Lawsuits

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Alan L. Schlosser (#49957) Michael T. Risher (#191627) Linda Lye (#215584) ACLU Foundation of Northern California, 39 Drumm Street San Francisco, CA 94111 (415) 621-2493; (415) 255-1478 aschlosser@aclunc.org, mrisher@aclunc.org, llye@aclunc.org NATIONAL LAWYERS GUILD RACHEL LEDERMAN, SBN 130192 Rachel Lederman & Alexsis C. Beach, Attorneys at Law 558 Capp Street San Francisco, CA 94110 (415) 282-9300; fax (415) 285-5066 rlederman@2momslaw.com Attorneys for plaintiffs TIMOTHY SCOTT CAMPBELL ET AL. (additional counsel on next page) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DELPHINE ALLEN, et al., Plaintiffs vs. CITY OF OAKLAND, et al.,

MASTER FILE No. C-00-4599-TEH ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (Civ. L.R. 3-12) AND PROPOSED ORDER; DECLARATION IN SUPPORT APPLICATION FOR TRO PENDING

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

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 1

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CAROL SOBEL, SBN 84483 429 Santa Monica Blvd #550 Santa Monica, CA 90401-3439 (310) 393-3055; fax 310 451-3858 carolsobel@aol.com BOBBIE STEIN SBN 113239 503 Dolores Street, #201 San Francisco, CA 94110-1564 (415) 255-0301; fax (510) 601-5780 bstein8692@aol.com R. MICHAEL FLYNN SBN 258732 Flynn Law Office 170 Columbus Street, Ste 300 San Francisco, CA 94133 (415) 989-8000 x 24; fax (415) 989-8028 rmflynnlaw@gmail.com Attorneys for plaintiffs CAMPBELL ET AL.

11 12 13 14 15 Of Counsel to Plaintiffs 16 17 18 19 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that, pursuant to Civil Local Rule 3-12, plaintiffs in 22 Timothy Scott Campbell et al. v. City of Oakland, et al., ("Campbell") Case No. C 23 11-05498 RS give notice that this case, filed today, is related to the cases listed below that 24 are currently pending, or have been before, Judge Thelton Henderson of the United States 25 26 27 28 ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 2 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 11-05498 RS) JAMES B. CHANIN (# 76043) JULIE M. HOUK (# 114968) Law Offices of James B. Chanin 3050 Shattuck Avenue Berkeley, California 94705 510) 848-4752; FAX: (510) 848-5819 jbcofc@aol.com

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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 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. 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. 2. Spalding et al v. City of Oakland et al., C11-02867 TEH; 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 to Delphine 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

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 3

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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 Police Department 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, while the 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.

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 4

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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, 2004 to December, 2007). The Agreement between the parties remains in full force and effect.

4.

The Delphine 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

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 5

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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. Schlosser Michael T. Risher Linda Lye ACLU Foundation of Northern California NATIONAL LAWYERS GUILD RACHEL LEDERMAN CAROL SOBEL BOBBIE STEIN R. MICHAEL FLYNN JAMES B. CHANIN JULIE M. HOUK Law Offices of James B. Chanin

___________________________ By: RACHEL LEDERMAN Attorneys for plaintiffs Campbell et al.

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 6

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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. I have 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 Department’s using excessive force on peaceful protesters in violation of OPD’s 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 Northern District 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

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 7

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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, and Local 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 our contact 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

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 8

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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. Hall’s 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 ________________________________

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:

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 below are related to the case assigned to me, and such case shall be reassigned to me. C-00-4599-TEH Delphine 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.

______________________________ Judge Thelton E. Henderson

ADMINISTRATIVE MOTION RE RELATED CASES DELPHINE ALLEN ET AL. V. CITY OF OAKLAND, CASE C-00-4599-TEH 10

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