Ernest A. Canning Byon 11/16/2011, 3:14pm PT

Guest blogged by Ernest A. Canning

On Monday, the American Civil Liberties Union (ACLU) of Northern California and the National Lawyers Guild filed a 17-page complaint (Campbell vs. City of Oakland) in the U.S. District Court for the Northern District of California seeking both compensatory damages and the issuance of a temporary restraining order that would enjoin the Oakland Police Department (OPD) and 17 outside law-enforcement agencies from trampling upon the constitutional rights of both bystanders and participants in Occupy Oakland.

The complaint calls for the OPD to cease their vicious, unprovoked and indiscriminate use of chemical agents, flash-bang grenades, nightsticks and direct-impact crowd control weapons --- all in violation of Crowd Control Policies adopted as part of a settlement of two previous federal cases entailing allegations of prior lawless actions by OPD.

The body of the complaint provides graphic details of police misconduct that is so pervasive that the legal filing might aptly be labeled, "an anatomy of an ongoing police riot" or "OPD's campaign of terror"...

Broader picture of Oct. 25 events

In two previous articles, The BRAD BLOG focused specifically on the events that occurred shortly after 7:30 p.m. at the intersection of 14th and Broadway that left former Marine and two-tour Iraq Vet Scott Olsen with a critical brain injury.

In the first article, we forensically examined the available video evidence and statements by eye-witnesses, all of which refuted the claim made by Oakland Interim Police Chief Howard Jordan, during an Oct. 25 televised press conference, that it was "necessary" for law enforcement "to deploy gas in order to stop the crowd and people from pelting us with bottles and rocks."

In the second article, we disclosed how OPD, after being confronted by our first article, failed to offer any evidence to support the Interim Chief's "bottles and rocks" allegation --- an allegation which OPD then said, once we called them on it, was little more than a "preliminary belief." Jordan had failed to qualify it that way, however, during his presser.

The ACLU complaint covers the gamut of the Oct. 25 confrontations.

Pillage and plunder

The federal complaint contains detailed allegations, commencing with the militarized Oct. 25 pre-dawn raid on the peaceful Occupy Oakland encampment, during which police deployed "flash bang grenades and tear gas." The raid came as such a surprise that "many occupiers did not hear a dispersal order." They were deprived of "an opportunity to gather their belongings and leave" before being arrested, "beaten and shot with rubber bullets" even as they attempted to "leave the area with their belongings."

The complaint's description of the pre-dawn raid bore the indices of pillage and plunder by an invading army, to wit:

OPD...destroyed tents and other personal property...for example, it slashed the sides of the large yellow tent that had served as the heart of the plaza's children's village, a space that had been created so that parents have a safe place to be with their children. Officers threw toys, books, and art supplies that people had brought to the children's village into a different part of the plaza as if they were garbage.

Deliberate assaults on/harassment of peaceful post-raid marches

The complaint alleges that, throughout Oct. 25, police "repeatedly ordered the assembled crowd to disperse, even though no illegal conduct had occurred and the protesters had merely assembled in peaceful protest."

Recall that under case law and the 10/28/05 OPD Training Bulletin [PDF] (referred to in the complaint as the Crowd Control Policy adopted as part of the settlement of the previous federal cases), "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."

The complaint alleges:

OPD and its agents used batons to beat one protester who had fallen to the ground and against others who were trapped in a dense crowd and unable to disperse….OPD fired so-called beanbags (…bags filled with lead shot that are fired from a shotgun) into a group of people who were doing nothing more than failing to move as quickly as the rest of the crowd…Instead of throwing flash-bang grenades and tear gas canisters at a safe distance from the crowd, officers threw them directly at them.

Did single plastic water bottle precede evening barrage?

Our previous, painstaking analysis of the video evidence of the events immediately preceding Scott Olsen's critical brain injury revealed that OPD had declared the gathering at 14th & Broadway on the evening of Oct. 25 to be an unlawful assembly and announced their intent to deploy CS gas leading to the donning of gas masks by law enforcement personnel before there was so much as a hint of potential violence from the crowd. We confronted witness statements, such as those offered by James West of Mother Jones, who said he witnessed "two men throw bottles at the police", even as the bulk of demonstrators were peaceful and actually chastised the "small, visible, determined group of agitators" who had hurled projectiles.

West later told The BRAD BLOG that, in fact, he had not been on the scene prior to the first use of chemical agents by the police. He had arrived at 14th and Broadway later, only after police had already used gas on the crowd the first time. He says that he heard of no reports of similar provocations prior to that first use of gas by law enforcement.

The newly filed federal complaint alleges:

In one instance, the officers launched a barrage of projectiles that blanketed the assembled group in tear gas, and subjected the assembled group to flash-bang grenades and other projectiles, simply because someone in the crowd had thrown a single plastic water bottle. Worse, even people 100 feet away from the source of the bottle who were chanting at others not to throw things at the police were barraged. One such volley...fractured the skull of...Scott Olsen...

The complaint reveals that another protester suffered a ruptured spleen during the melee.

It is unclear from the complaint whether this "single plastic water bottle" preceded the first police volley.

While it is possible, despite the existing video evidence, that a single protester threw a single plastic bottle immediately prior to the initial barrage, this would have been long after OPD had declared the gathering an unlawful assembly and announced their intent to deploy gas, not as a means of protection but for the expressly announced purpose of crowd dispersal --- "If you refuse to move now," OPD Sgt. Bates declared over a loudspeaker in conjunction with his order that the gathering at 14th & Broadway disperse, "chemical agents will be used."

Law enforcement officers or hoodlums with badges?

The allegations of paragraph 25 of the federal complaint are especially disturbing:

OPD and its agents also targeted projectiles...at...individuals who posed no risk to the officers or to anyone else. One protester, who was hit repeatedly in the back by painful projectiles...walked past the police line to escape the shooting. When he asked the police why they were shooting at him, he was shot again. He was hit at least 8 times.

This took place during the same event where Scott Olsen was critically injured and where a San Francisco ESU Deputy Sheriff tossed a tear gas canister at the feet of individuals who sought to come to Olsen's aid.

Cameraman not the only one shot at Nov. 3 incident

In "Cameraman Shot While Filming Oakland Police Line" we provided video of an OPD use of force that took place at 16th Street near San Pablo Ave. in Oakland on the morning of Nov. 3, 2011.

The cameraman, Timothy Scott Campbell, is now the lead plaintiff in the newly filed federal complaint.

The complaint alleges that, throughout the Nov. 2 general strike, "events were peaceful and involved no police confrontation. Indeed, there were few police even visible." However, commencing in the evening, OPD issued "orders that...were often unintelligible and failed to provide protesters with directions on how to comply...OPD and its agents, trapped protesters, who went precisely where instructed, in an area with explosions and tear gas canisters flying, only to then arrest them..."

They note that "citizen journalist and videographer...Scott Campbell" was complying with an order to step back while filming "when he was suddenly shot in his right leg...Another man who was simply standing there, not posing any apparent threat...was shot three times with bean bags." OPD then "threw flash bang grenades directly at bystanders, who were then showered with shrapnel, even though the Policy requires that such devices be exploded at a safe distance from the crowd."

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.



