Deepening Chill in Berkeley: A Recap of Political Repression Against Campus Protest

by Gregory Levine, UC Berkeley

The belated return of wintry rain and cool temperatures to the Bay Area has been joined since last week by a deeper chill, one threatening free speech and assembly across not only the UC Berkeley campus but, indeed, the entire UC system. Here’s a recap.

• Since Friday March 16 four members of the campus community arrested during the UCPD’s brutal break up of the Occupy Cal encampment on November 9, 2011—as well as nine individuals not arrested but later identified by the UCPD and DA from video of the event as being present that day and being leaders of protest—have been arraigned at Wiley W. Manuel Courthouse, Oakland on charges brought by District Attorney Nancy O’Malley (allegedly resisting arrest or obstructing an officer, obstructing a thoroughfare, and in two cases battering an officer—charges, I’ve read, which could result in fines of $1000 or one year in jail).

• Word of these charges prompted a petition organized by the Berkeley Faculty Association which condemned the DA’s charges as a “significant chilling of free speech and an undue restriction of rights of free assembly on campus, values officially enshrined in UC Berkeley's Principles of Community (‘We are committed to ensuring freedom of expression and dialogue that elicits the full spectrum of views held by our varied communities.’)” The petition, delivered to Chancellor Robert Birgeneau on March 12 with signatures of 246 Berkeley faculty, demanded that the administration request the DA to drop all charges against those protesting on November 9. BFA saw fit to remind “Chancellor Birgeneau that the faculty Senate has stated in the resolutions of November 28, 2011, that the university administration and the police were in the wrong in their handling of the November 9th demonstrations.”


This was followed by an additional petition requesting that Chancellor Birgeneau request the DA to drop the charges, organized by Remaking the University, which drew signatories from faculty across the UC system and included the following:

“WHEREAS UC Berkeley Chancellor Robert J. Birgeneau responded to the November 9th police actions on the Berkeley campus by writing, “I sincerely apologize for the events of November 9 at UC Berkeley and extend my sympathies to any of you who suffered an injury during these protests,” a group that includes two participants now indicted by Alameda County,

“WHEREAS UC President Mark Yudof responded to the November events on the UC Berkeley and Davis campuses by vowing ‘to do everything in my power as president of this university to protect the rights of our students, faculty and staff to engage in non-violent protest,’

WHEREAS UC Davis Chancellor Linda Katehi responded to the November 20th incidents on her campus by asking the Yolo County District Attorney to drop any pending charges against students.”

• Beginning on Monday March 12, students, workers, and faculty picketed outside Berkeley’s California Hall and demanded that the Chancellor call upon the DA to drop all charges. Then, on Monday, March 19 protest against the charges (and subsequent “stay away” orders; see below) shifted to Berkeley’s Sather Gate.

• On March 13, the ACLU of Northern California sent the Chancellor a strongly worded letter of condemnation and demand for transparency (through a Public Records Act request for all communications between UC employees and the DA’s Office and UC civilian employees and UCPD regarding criminal prosecution stemming from Nov. 9). Its introductory paragraph reads:

Thirty-nine people were arrested that day, but the District Attorney recently decided to proceed with prosecution of four of the 39, and also to charge at least another eight who were not arrested that day. What is extremely troubling about these developments is that the individuals singled out for criminal prosecution—out of the hundreds who were present that day—have been active leaders in student protests, have served as important witnesses in the University’s own internal reviews of protest issues, and sought medical treatment at a University health facility for injuries at the hands of police. These criminal prosecutions are nothing sort of chilling. They chill students and faculty in the exercise of their free speech rights. They chill potential witnesses from coming forward and assisting the University with this and future investigations of police misconduct. And they chill injured members of the Berkeley community from seeking medical treatment for physical injuries.

• On March 14, the Chancellor responded to the BFA petition and, perhaps, the ACLU letter, with a feeble, at best, statement to the DA. It simply reminded her that the students facing misdemeanors had already been granted amnesty from the Student Conduct process and urged the DA to be “sensitive to the context of the campus environment and to the strong feelings this has raised on campus.”

• On March 15, UC Berkeley’s Tang Health Center issued a statement on patient-privacy policy, in response to concerns raised by those facing charges and others injured by the UCPD on November 9 that the Health Center had forwarded to the UCPD the names and injuries of those seeking medical care (in at least one case, Kaiser did so as well). Although the Center was adhering to California state law, the fact that the names of the injured were forwarded to the law enforcement agency responsible for those injuries is deeply disturbing to many on the Berkeley campus and beyond. There is now discussion about changing the state law at issue (Penal Code 11160). There is also a report that in the past week the Tang Center has had two windows broken and a few cases of graffiti, including “Snitches will get Stitches” and “F*** the Snitches.”

A new development this week, as arraignments proceed, deepens the chill.

• The twelve arraigned in Oakland this week were given "stay away" orders by Judge Paul Seeman. The order apparently bars the defendants from approaching within 100 yards of UC property except, as the Daily Cal reported, “for class-related or employment duties—which includes walking to and from classes, attending class and teaching.” Note the blanket barring of defendants from all UC property—apparently, because protesters travel to support protest at other campuses. Note too that students would apparently be barred from use of libraries, labs, and other educational/teaching/and research resources and facilities on campus. Residence in a co-opt on UC property, meanwhile, would also appear to be unlawful, raising immediate existential concerns above and beyond concerns for educational access. Of course the order implicitly bars exercising on UC property protected rights of free speech and free assembly. Notably, the “stay away” order was not issued against Professor Celeste Langan, who was arraigned on March 16, suggesting selective prosecution of non-faculty protesters. Those hit with the “stay away” order are challenging it as pre-trial hearings proceed, but unless lifted it may remain pending trial, conceivably for months.

One student’s report from the courthouse, meanwhile, suggests a scene that would be amusing if it were not crushingly ironic, so terribly at odds with the struggle to protect education, and indicative of Judge Seeman’s lack of understanding of, if not hostility, toward learning and research:

“4 more stay away orders issued for the November 9th charges. When the lawyer mentioned that her client needed access to the library, the judge asked, ‘Why would you really need to use the library?,’ (assuming the tone of ‘now, let's be real, between the two of us guys...’). I was kicked out of the courtroom when I whispered, ‘books.’”

• Also on March 20, Berkeley Councilmember Kriss Worthington circulated a cover letter, accompanying the text of a proposed resolution (for the April 3 Council meeting) to endorse the BFA petition and to encourage sending letters to the Alameda County DA requesting that charges be dropped. It also suggested that letters be sent to Berkeley’s Chancellor and Chief of Police urging them to support the same request:

Dear Friends,

Please do everything you can to call for dropping the charges against UC
students, faculty, and alumni.

I am extremely disappointed that the UC Police Department has chosen to
present cases to the DA against people who participated in the Nov. 9, 2011 non-violent protest. This police behavior adds insult to injury to the
inappropriate actions by UCPD on the day of the protest. It is imperative
that we organize widespread opposition to the prosecution and persecution of these participants in a non-violent protest.

Please see the attached council item calling upon the DA to drop the charges. It is good that the UC Chancellor has stated that they will not be pursuing student conduct charges regarding this event. It would be even more important for the Chancellor to tell the UC Police Chief to stop wasting City, County, and University money pursuing provocative charges
against these non-violent protestors. If the UC Police Chief indicated to the DA that *it is not **in the interest of justice* to pursue these charges, we can save everyone needless stress, conflict, and controversy.

Sincerely, Kriss Worthington
Councilmember
City of Berkeley, District 7

• For additional information, documents, news reports, and commentary, see the “Clearinghouse for Information on the Arrests and Charges from 11.9.2011 at UC Berkeley"

Adding this up is a grim and worrisome calculation. One might be inclined to conclude that the DA’s selective prosecution of those arrested on Nov. 9 and targeting of protest leaders, and the judge’s issuance of broad “stay away” orders against students, amounts to prosecutorial/judicial attack on free speech and assembly—while potentially shielding law enforcement from criminal/civil lawsuits against police violence toward non-violent protesters—and perhaps a political statement against public education itself.

One may wonder too about the roles of the UCPD and Berkeley administration in investigating protesters and forwarding information to the DA. Do the Chancellor and EVCP George Breslauer have control of the UCPD. Surely they would not be unaware of possible communication between campus police and the DA? Even if they have not been privy to UCPD’s communications with the DA, choosing not to set the tone for UCPD’s response is as much of a decision as explicitly directing it. Chain of command on the Berkeley campus, meanwhile, has hardly been transparent since events of 2009 and remains opaque for Nov. 9. Will the Chancellor respond fully to the ACLU’s Public Record Act requests for communications between the administration and UCPD on Nov.9, and then with the DA’s office? So far only a trickle of email communication has been released by the administration, but it offers disturbing evidence of the Chancellor’s knowledge of the violent use of police batons on protesters on Nov. 9 and his apparent willingness to allow such violence to enforce the no encampment policy at all costs (to avoid ending up, in the Chancellor’s words, in “Quan Land.”  At present UCPD’s internal investigation of Nov. 9 remains under wraps, and the campus Police Review Board’s report is pending. So too the report to be issued, at President Yudof’s request, by UC Berkeley School of Law Dean Christopher Edley, Jr. and UC General Counsel Charles Robinson on UC police procedures and response to campus protest. [Ed note: this report is due to be unveiled to the Board of Regents at their meeting the last week of March.]

Needless to say, the silence of Berkeley’s Chancellor in the face of the arraignments and “stay away” orders, and the UCPD’s possible role in enabling them, is thunderous. It has been suggested to me that the Chancellor might reaffirm his commitment to the University’s principles and mission by issuing a statement that indicates that he will not support the exclusion of students from campus (although it bears recalling that the administration, through its Office of Student Conduct, permitted similar orders to be issued against students facing conduct charges in 2009). After all, Birgeneau stated publicly on Nov. 22, 2011, “As chancellor, I take full responsibility for these events and will do my very best to ensure that this does not happen again.” The prosecutions and silence from California Hall also stand in considerable disjuncture with efforts by many members of the campus community to work toward some degree of healing following repeated instances of police violence against protesters on the Berkeley campus.

Stay tuned. The coldest winter in Berkeley in recent memory may be the spring and summer of 2012.