U.S. District Judge William Alsup sided with the city of Berkeley earlier this month and ruled that Berkeley police officers used “minimal” force that was “reasonable” when they arrested several people who protested or resisted arrest during a homeless camp removal in 2016.
Several dozen people, under the moniker “First They Came for the Homeless,” had set up the encampment on a public sidewalk at Adeline and Fairview streets in South Berkeley that year to protest how the city was providing services to people experiencing homelessness. The camp’s presence prompted community complaints, according to court records. On Nov. 4, 2016, at 5 a.m., police officers moved in to dismantle the camp and arrested several people during the enforcement action.
One year later, three women — Nanci Armstrong-Temple, who had been running for Berkeley City Council in November 2016, homeless advocate Barbara Brust and camp resident Michelle Lot — sued the city over their arrests. They were represented by Dan Siegel and EmilyRose Johns of Oakland law firm Siegel, Yee, Brunner & Mehta. Attorneys argued that their clients were “victims of police brutality or police retaliation (for free speech)” during the camp dispersal. None of the women were charged.
On April 16, Alsup granted the city’s request for summary judgment, which ends the lawsuit at the trial court level. Berkeleyside emailed Johns to ask whether her firm plans to appeal Alsup’s ruling. Johns had not responded to the inquiry as of publication time.
According to the judge’s ruling, Lot tried to stop police from arresting her 26-year-old son that day. When she wrapped her arms around his waist, Berkeley Police Officer Sean Tinney “performed a takedown by grabbing the hood of her sweatshirt and some of her hair and
pulling her away from the officers.” Alsup wrote that “this takedown was a trained technique that was POST and departmentally approved.”
The judge also wrote that Lot’s “claim that she ‘did not struggle or resist’ is plainly contradicted by the video, in which Lot can be heard screaming at the officers to remove their hands from her head and can later be seen struggling as the officers attempt to adjust her handcuffs.” Lot said her rotator cuff was injured that morning but, the judge wrote, “she refused medical care upon her arrest and did not truly seek medical care until nearly two years later.”
Alsup ruled that Tinney “was entitled to use the minimal force he did in order to prevent Lot’s physical interference” with her son’s arrest.
Unlike Lot, Brust and Armstrong-Temple were not homeless and did not live at the Adeline and Fairview camp, the judge wrote. The women “responded to calls for assistance from members of the encampment. Brust directed a non-profit and worked regularly with the homeless community. Armstrong-Temple was a candidate for Berkeley’s City Council and had been critical of the police and their participation in the removal of homeless encampments. Both Brust and Armstrong-Temple had been present at prior encampment removals. They went to Fairview and Adeline Streets on November 4 to help residents move their property and to observe the police’s conduct,” Alsup wrote.
Brust was arrested after she refused to give up a bullhorn she had been using for several minutes, the judge wrote. Berkeley Police Lt. Andrew Rateaver, who has since retired, “stepped on her foot, twisted her thumb, and pulled the megaphone towards his body, causing her to fall to the ground. As he tried to help her up, she screamed at him not to touch her.” Several other officers then stepped in to get Brust to the police transport van.
“No reasonable juror could evaluate the circumstances of this encounter and conclude that any of the officers’ conduct amounted to objectively unreasonable force,” Alsup wrote. “As the video demonstrates, the force was minimal and resulted from Brust’s resistance and refusal to turn over the bullhorn.”
Seeing Brust in custody, Armstrong-Temple ran over and blocked the police van to stop officers from putting Brust inside, telling them, “You can’t take Barbara.” After telling police, “You will not take me,” officers pulled Armstrong-Temple away from the van and down to the ground, Alsup wrote. She then refused to cooperate when police tried to handcuff her, and “went limp and refused to stand,” according to his ruling. Police then carried her to the transport van.
“The video recording conclusively establishes that the officers’ conduct did not amount to excessive force,” Alsup wrote. “Rather, the officers acted reasonably so as to prevent Armstrong-Temple’s further interference with Brust’s arrest.”
Brust and Armstrong-Temple had been arrested that morning on suspicion of obstruction or resisting arrest. In their lawsuit, the judge wrote, defendants said they were arrested “in retaliation for their speech in violation of the First Amendment.”
Alsup wrote that other people who criticized police that morning were not arrested and that Brust’s arrest did not take place “until she physically resisted Lieutenant Rateaver’s attempts to take away the megaphone (as it drowned out police commands and verbal communications).”
The judge wrote that no one stopped Armstrong-Temple from criticizing police that morning during the camp removal. She was not arrested until she blocked the van as police moved Brust in that direction, according to his ruling.
In response to an allegation of battery, Alsup rejected it and wrote that “the officers here used reasonable force” during the Nov. 4, 2016, arrests. He also rejected all the other claims from the lawsuit on various legal grounds.
The city of Berkeley declined to comment on the case.