UC Berkeley cop cleared in '09 broken finger case UC BERKELEY

A UC Berkeley police officer acted properly in 2009 when he struck a student protester's hand with his baton and broke her finger, a federal jury in San Francisco has concluded.

Officer Brendan Tinney did not use unreasonable force against doctoral student Zhivka Valiavicharska, and therefore did not violate her Fourth Amendment right against unreasonable seizure, a jury of eight found Friday following four days of testimony.

"It is extremely regrettable whenever the Police Department is required to use force, but unfortunately sometimes it becomes necessary," Mitch Celaya, UC Berkeley's police chief said in a statement posted on the campus website. "We are gratified that the jury recognized that Officer Tinney acted appropriately under the circumstances."

Plaintiff stunned

Valiavicharska, however, said she was stunned - less by the verdict than by the experience of being portrayed during trial as a violent, unruly person who had caused her own injury.

"Oh, my God," she said from the University of Chicago, where she has recently taken a post-doctoral position teaching political theory. "I'm completely shattered."

Valiavicharska's attorney, John Burris, blamed the verdict on a protest-weary public.

"What's been taking place with the Occupiers, there was an undercurrent in the case that was hurtful," Burris said, referring to the public's increasing frustration with violent protesters who in recent months have set fires and smashed windows, mainly in Oakland.

Tense tuition protest

The circumstances were different on Nov. 20, 2009, a rain-soaked day when about 2,000 students gathered outside Wheeler Hall on the UC Berkeley campus to support protesters who had seized the building to oppose rising tuition.

Police in riot gear used metal barricades to hold back the throng of chanting students.

The mood was electric, fueled by anger among students that the University of California regents had just approved a 32 percent tuition increase, and among police by a confusion that campus investigators would later blame on poor communication among officers and administrators.

Valiavicharska stood in a crowd of students chanting, "Students aren't criminals!" as a handful of officers faced them. Between them were metal barricades.

Valiavicharska told the jury in court papers that she had "gently rested her left hand" on the barricade when Tinney "rudely ordered" her to remove it. She complied, but after a few minutes "inadvertently rested her left hand on the barricade again," and Tinney "struck her a vicious blow" with his baton.

Tinney offered the court a different version of events. Valiavicharska "shook the barricade in direct violation of orders to remove her (hand) from the barricade," he said in court papers. Denying that he was either rude or vicious, Tinney said Valiavicharska "posed a significant and immediate threat to the safety" of officers.

Pinkie smashed

Tinney's baton strike broke Valiavicharska's left pinkie. She is left-handed and said the finger now only partially bends.

"I basically placed my hand back on, and he smashed it," she said, describing herself not as a violent protester but as an educator who cares deeply about the loss of public support for education in California. "I don't know why he found it necessary to break my finger."