RUSSELL M. PERRY
ZACHERY A. LOPES
Rains Lucia Stern St. Phalle & Silver, PC
On May 31, the Ninth Circuit Court of Appeals issued a ruling of significant importance to peace officers tasked with gaining compliance with lawful orders during mass crowd control situations. In a published opinion titled Yvette Felarca, et al. v. Robert J. Birgeneau, et al. (2018 9th Cir.) __ F.3d __, the Ninth Circuit overturned a federal district court’s denial of summary judgment for University of California, Berkeley Police Officer Samantha Lachler, by finding that Officer Lachler did not engage in excessive force. The Court’s decision reaffirmed the burden imposed on plaintiffs alleging a peace officer is not entitled to immunity from suit, emphasized that an analysis of force must consider not only the type but also the amount of force deployed, and acknowledged the significance of considering an officer’s training and the employing department’s policies when determining the reasonableness of force.
The case arose from a mass protest on the UC Berkeley campus in November 2011. In the midst of the nationwide Occupy Wall Street movement, hundreds of protesters — some UC Berkeley students, some not — descended on the campus with the stated intent of erecting an encampment. University policy, however, clearly prohibited erecting campsites on school grounds. Prior to the protests, university officials circulated notices to the campus community reminding students, faculty and other stakeholders of the no-camping policy, and that the university intended to enforce that policy.
Undeterred by the university’s warnings, hundreds of protesters arrived on campus on November 9, 2011, and erected a set of encampments. University police read dispersal orders and dismantled the encampments. A few hours later, another encampment was erected. In response, Officer Lachler and her fellow special response team officers donned protective equipment and arrived at the scene of the new encampment intending to dismantle it. In a direct effort to thwart the officers’ intentions, the protesters linked arms in a “human chain” around the encampment preventing their advance. The commanding officer of Officer Lachler’s team read several dispersal orders, ordering the protesters to disperse and allow access to the unlawful encampment. The protesters refused to comply with those commands and remained in the linked configuration. Moreover, many of the protesters began to display aggressive behavior, shouting profanities at the officers, pulling tighter together by tensing their muscles, with some taking fighting stances in an obviously increasing state of hostility.
At this point, Officer Lachler and her fellow officers were outnumbered by hundreds of persons who had overtly refused to obey lawful dispersal orders. Their standing orders, however, were to gain access to and dismantle the unlawful encampment. With no other reasonable option, Officer Lachler’s team was ordered to deploy “tip strikes” with their batons and physically move the protesters to clear a path of access. Officer Lachler and her fellow officers interchanged orders to “Move back!” with “tip strikes” against the torsos of the protesters. With this deploy of force, the protesters began to fight back by attempting to rip Officer Lachler’s baton away from her grip, hurling themselves forward toward the officers to admittedly “maintain their ground” against the officers’ approach, and spitting and throwing various objects at the officers themselves.
Eventually, the officers were able to access the encampment and successfully dismantle it. The protesters returned that night to continue their protests, where another confrontation with police officers from various agencies ensued.
Shortly after the incident, dozens of plaintiffs sued university administrators and police officers in federal district court, including Officer Lachler, alleging the officers’ use of force was excessive. Attorneys Russell M. Perry and Zachery A. Lopes were retained by the university to defend Officer Lachler and five other police officers. As the case developed, Perry and Lopes successfully filed motions to dismiss five police officers from the lawsuit on various legal grounds, leaving only Officer Lachler remaining heading toward a jury trial.
In advance of trial, Perry and Lopes filed a motion for summary judgment in an attempt to get Officer Lachler dismissed from the lawsuit. The motion asserted both that her use of force was reasonable and therefore lawful, and that even if her force was not lawful, she was entitled to “qualified immunity” because no existing case law clearly established that her use of the baton was unlawful in the circumstances she confronted.
Generally, qualified immunity protects police officers from suit unless the law at the time of the challenged conduct clearly establishes that the conduct was unlawful. Qualified immunity provides a strong defense for peace officers accused of excessive force, as the Supreme Court has made clear that qualified immunity shields from liability “all but the plainly incompetent or those who knowingly violate the law.” (Mullenix v. Luna (2015) 136 S.Ct. 305, 308.) In other words, if the law existing at the time of the officer’s actions did not make sufficiently clear that “every reasonable [officer] would have understood that” the actions taken were unlawful, immunity attaches. (Id.)
Perry and Lopes argued that Officer Lachler did not use excessive force and was otherwise entitled to qualified immunity even if she had because: (1) there was no existing case law putting her on notice that her use of baton “tip strikes” to disperse a crowd of hundreds of noncompliant people to enforce a lawful order violated the Fourth Amendment; (2) her use of force complied with her training and the training guidelines set forth by the state’s Commission on Peace Officer Standards and Training; (3) she used only minimal force which did not cause injury to any of the plaintiffs; and (4) the university had a legitimate interest in enforcing its no-encampment policies, for which Officer Lachler could reasonably use the minimal force she did.
The federal district court disagreed. It denied Officer Lachler’s Motion for Summary Judgment on both grounds, ruling that it could not state as a matter of law that her use of force was reasonable under the circumstances, and that existing law made it clear that deploying “baton blows” was unreasonable “in the absence of threat to the officer, a serious crime or attempt to evade arrest.” With strong conviction that the District Court failed to apply the law appropriately and grant Officer Lachler qualified immunity (at least), Perry and Lopes appealed the District Court’s decision to the Ninth Circuit Court of Appeal.
Before the Ninth Circuit, in addition to the arguments made at the district court level, they argued that police officers cannot be forced to relinquish the government’s important interest to enforce the law simply by the mass refusal to obey lawful orders. Indeed, what other course of action was Officer Lachler and her fellow officers supposed to take other than deploy minimal force in response to an uncertain and dangerous situation? After all, she and her fellow officers were vastly outnumbered by a hostile crowd that was overtly disobeying lawful orders to disperse with the intention to prevent the officers from completing their objective to enforce university policy. In such circumstances, Officer Lachler did only what any reasonable police officer would have done.
The Ninth Circuit agreed and overturned the District Court, ordering it to enter summary judgment on behalf of Officer Lachler. Importantly, the Ninth Circuit found that Officer Lachler deployed reasonable, and thus lawful, force, making a determination on qualified immunity unnecessary because Officer Lachler did not violate any of the plaintiffs’ rights in the first instance.
The published decision is notable for a few reasons. First, it appropriately focuses on the amount of force Officer Lachler deployed, not simply the type of force deployed. This nuanced analysis of deployed force has not always been clear in existing case law and is exactly what the District Court had failed to do. As argued by Perry and Lopes, even though Officer Lachler deployed strikes with her baton, which is generally considered an “intermediate” force option, the manner of her baton use was the critical inquiry, which was minimal. The Ninth Circuit’s decision articulates this inquiry specifically, noting that “[w]hile baton blows are a type of force capable of causing serious injury, jabs with a baton are less intrusive than overhand strikes.” The Ninth Circuit arrived at this conclusion after determining that the plaintiffs’ lack of injuries “suggest[s] a lesser degree of force,” and that Officer Lachler’s actions were consistent with her training and her department’s use-of-force policy. Second, the Ninth Circuit found that the university had a legitimate interest in enforcing campus policy and “quickly dispersing and removing lawbreakers,” because it was “not required to permit the ‘organized lawlessness’ conducted by the protesters.”
In the end, Officer Lachler’s actions were vindicated by the Ninth Circuit — she performed her duties exactly as she was trained to do, in full compliance with the law. Perry and Lopes successfully defended all six police officer clients sued by the plaintiffs.
About the Authors
Russell M. Perry is a partner with Rains Lucia Stern St. Phalle & Silver, PC. He represents peace officers in civil, criminal and administrative disciplinary matters.
Zachery A. Lopes is an associate with Rains Lucia Stern St. Phalle & Silver, PC. He represents the firm’s labor association clients in all collective bargaining matters and civil and administrative litigation. He also represents individual peace officers in civil litigation
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[ My representative ] is an awesome attorney.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Greg Harman Kensington POA
[My representative] is the best!!
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- James Beckman Miracosta College POA
Excellent service everytime.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Ron Ruddy Riverside POA
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Russell Wise Alameda POA
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Erick Gaunt Palos Verdes POA
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.