The Berkeley Police Department has agreed to document force during demonstrations and protests in more detail, and pledged to continue to work on getting body cameras for officers, following a settlement agreement finalized Tuesday in closed session before the Berkeley City Council.
The National Lawyers Guild of San Francisco brought the suit in November 2015 on behalf of 11 plaintiffs who said they were victims of police brutality during a Black Lives Matter demonstration in Berkeley on Dec. 6, 2014.
“The plaintiffs alleged that they were clubbed and tear gassed for no reason and forcibly herded more than a mile down Telegraph Avenue, from the south campus area into Oakland,” according to a National Lawyers Guild (NLG) statement about the settlement released Wednesday.
One of the plaintiffs was photojournalist Sam Wolson, who was working to document the Dec. 6, 2014, demonstration for the San Francisco Chronicle. Wolson said he was hit in the head by an officer’s baton after he knelt down to take a photograph.
See an archive, created by BPD, of video footage from Dec. 6.
The city of Berkeley agreed to a payment of $125,000, a commitment to seek body cameras, and four policy changes related to force and enforcement during demonstrations and protests involving crowds.
Berkeley city spokesman Matthai Chakko said that payment of $125,000 includes attorney fees and costs. Originally the lawyers were seeking $775,000, with $500,000 of that for fees, he said. (Update, Feb. 16: Rachel Lederman, one of the plaintiffs’ attorneys, disputed this figure and said the initial settlement bargaining position on the monetary relief was $250,000.)
Of the 11 initial plaintiffs, only seven remained at the time of this week’s agreement. Two settled in May for an undisclosed amount with the city of Hayward, which provided mutual aid at the Dec. 6 protest. And two others dismissed their own claims in July, Chakko said. (When the prospect of the lawsuit first arose, NLG said it had identified 14 claimants from Dec. 6-8, 2014.)
The settlement requires officers to complete written reports, as quickly as possible, following any demonstration or “crowd event” to detail any force that was used. They will have to describe the reason for the force, as well as its location and type, and provide information about the person on whom force was used. This wasn’t the case before.
BPD also has to change its approach to baton use on skirmish lines. According to Lederman, BPD had been following an unwritten policy that allowed officers “to use their batons on anyone who entered their ‘safety zone’ — an unmarked, undefined distance from a line of officers.”
Civil rights attorney Jim Chanin, co-counsel for the plaintiffs, said that now, even on the skirmish line, “To comply with the Fourth Amendment, force must be necessary and reasonable.”
The third piece of the settlement requires BPD to “be mindful” of the risk of impacting unintended targets when less-lethal force is used “due to unexpected crowd movement,” Chakko said.
Fourth, the city said it would consider “cite and release” — rather than taking people to jail — as an option during mass arrest scenarios.
The department also “made a commitment to seek full implementation of police body cameras,” according to the NLG statement.
The effort to seek body cameras has been in the works for quite some time, but has struggled due to lack of funding. Council previously approved a pilot program for the cameras, but never allocated the money to get it going. As part of the settlement, BPD will once again ask council to set aside that money.
BPD has said in the past that the time spent by officers dealing with body camera footage would amount to about five full-time positions over the course of a year. But many officers have said they support the move because cameras have been shown to decrease the number of complaints faced by police departments.
City spokesman Chakko said Wednesday that there was no acceptance of any liability by any party named in the lawsuit. Claims against all individual defendants were dismissed as part of the settlement.
He said, too, that the Berkeley Police Department launched, and later completed, a comprehensive review of its own policies in the immediate aftermath of the 2014 protests, and that BPD continues to be committed to serving the community in line with Berkeley values. The department ultimately came up with 32 recommendations for ways it could improve, which it outlined in a 161-page report it made available to the public.
“This was something they took on themselves well before any litigation,” Chakko said, of the policy review and subsequent work with the city’s volunteer Police Review Commission to refine its approach to crowd control and crowd management.
Moni Law, in the NLG statement, said she and the other plaintiffs “consider the settlement a victory for a better Berkeley, one that supports our diverse, engaged and outspoken community.”
Law said she was clubbed in the back from behind while she was urging other demonstrators to give police more space.
She said she’d like to see the city go further, however, and prohibit police from ever using “less than lethal” weapons and chemical agents, including tear gas, at protests.
In February 2015, council said police could not use tear gas on peaceful crowds, but left it available as an option should violence arise.
The full complaint can be read here. The Berkeley police briefing notes for Dec. 6 can be seen here, and additional documents related to the protests have been posted previously by Berkeleyside.
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