Yvette Felarca v. Robert Birgeneau

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


YVETTE FELARCA; JOSHUA                   No. 16-15293
ANDERSON; CHRISTOPHER
ANDERSON; HONEST CHUNG;                     D.C. No.
MORGAN CRAWFORD; YANIA                   4:11-cv-05719-
ESCOBAR; JOSEPH FINTON; LOUIS                 YGR
HELM; JACQUELYN KINGKADE;
BENJAMIN LYNCH; LIANA
MULHOLLAND; COLLEEN MICA
STUMPF; JUSTIN TOMBOLESI; ERICK
URIBE; COLLEEN YOUNG; ANTHONY
MORREALE; SACHINTHYA
WAGAARACHCHI; FRANCISCO
ALVARADO-ROSAS; JULIE KLINGER;
MAXIMILIAN MCDONALD; TARO
YAMAGUCHI-PHILLIPS,
               Plaintiffs-Appellees,

                  v.

ROBERT J. BIRGENEAU, Chancellor of
the University of California-
Berkeley, in his individual capacity;
GEORGE BRESLAUER, Executive Vice
Chancellor and Provost of the
University of California-Berkeley, in
his individual capacity; HARRY LE
GRANDE, Vice Chancellor for
Student Affairs of the University of
California-Berkeley, in his individual
2               FELARCA V. BIRGENEAU


capacity; LINDA WILLIAMS,
Associate Chancellor of the
University of California-Berkeley, in
her individual capacity; CLAIRE
HOLMES, Associate Vice Chancellor
for Public Affairs and
Communications for the University
of California-Berkeley, in her
individual capacity; MITCHELL
CELAYA, Chief of the University of
California Police Department at
Berkeley, in his individual capacity;
ERIC TEJADA, Lieutenant; MARC
DECOULODE, Lieutenant; ANDREW
TUCKER, Sergeant #13, a police
officer for the University of
California Police Dept., in his
individual capacity,
               Defendants-Appellants,

                and

SAMANTHA LACHLER,
                          Defendant.
                 FELARCA V. BIRGENEAU                     3


YVETTE FELARCA; JOSHUA                   No. 16-15294
ANDERSON; CHRISTOPHER
ANDERSON; HONEST CHUNG;                     D.C. No.
MORGAN CRAWFORD; YANIA                   4:11-cv-05719-
ESCOBAR; JOSEPH FINTON; LOUIS                 YGR
HELM; JACQUELYN KINGKADE;
BENJAMIN LYNCH; LIANA
MULHOLLAND; COLLEEN MICA                   OPINION
STUMPF; JUSTIN TOMBOLESI; ERICK
URIBE; COLLEEN YOUNG; ANTHONY
MORREALE; SACHINTHYA
WAGAARACHCHI; FRANCISCO
ALVARADO-ROSAS; JULIE KLINGER;
MAXIMILIAN MCDONALD; TARO
YAMAGUCHI-PHILLIPS,
               Plaintiffs-Appellees,

                  v.

SAMANTHA LACHLER,
            Defendant-Appellant,

                 and

ROBERT J. BIRGENEAU, Chancellor of
the University of California-
Berkeley, in his individual capacity;
GEORGE BRESLAUER, Executive Vice
Chancellor and Provost of the
University of California-Berkeley, in
his individual capacity; HARRY LE
GRANDE, Vice Chancellor for
Student Affairs of the University of
California-Berkeley, in his individual
4                FELARCA V. BIRGENEAU


capacity; LINDA WILLIAMS,
Associate Chancellor of the
University of California-Berkeley, in
her individual capacity; CLAIRE
HOLMES, Associate Vice Chancellor
for Public Affairs and
Communications for the University
of California-Berkeley, in her
individual capacity; MITCHELL
CELAYA, Chief of the University of
California Police Department at
Berkeley, in his individual capacity;
ERIC TEJADA, Lieutenant; MARC
DECOULODE, Lieutenant; ANDREW
TUCKER, Sergeant #13, a police
officer for the University of
California Police Dept., in his
individual capacity,
                           Defendants.



      Appeal from the United States District Court
         for the Northern District of California
    Yvonne Gonzalez Rogers, District Judge, Presiding

       Argued and Submitted September 13, 2017
               San Francisco, California

                   Filed May 31, 2018
                     FELARCA V. BIRGENEAU                            5

  Before: J. Clifford Wallace and Paul J. Watford, Circuit
       Judges, and W. Louis Sands, * District Judge.

                 Opinion by Judge Wallace;
                Concurrence by Judge Watford


                          SUMMARY **


                           Civil Rights

   The panel reversed the district court’s order, on summary
judgment, denying qualified immunity to University of
California officials for the use of batons against protesters
by University police officers.

     Addressing first the claims of direct excessive force
brought by plaintiffs against Officer Lachler and Sergeant
Tucker, the panel noted that none of the plaintiffs who
brought these claims suffered injuries from defendants’
blows that required medical treatment or kept them from
returning to the protest. Thus, the panel concluded that, even
if the force used was of a type that is generally intrusive, the
amount of force applied here was minimal. The panel held
that the government had a legitimate interest in applying
minimal force to maintain order and enforce University
policy. On balance, the panel concluded that Officer Lachler
and Sergeant Tucker did not use excessive force, and
reversed the district court’s summary judgment and

    *
     The Honorable W. Louis Sands, United States District Judge for
the Middle District of Georgia, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
6                 FELARCA V. BIRGENEAU

remanded for the district court to grant summary judgment
in their favor.

    The panel next addressed plaintiffs’ claims that the
supervisory defendants planned the police response and
failed to stop assaults by the police. The panel held that the
district court erred by denying summary judgment to Vice
Chancellor Le Grande, Associate Chancellor Williams, and
Associate Vice Chancellor Holmes, who were not in the
police chain of command, and had no supervisory authority
over the police who allegedly committed the violations. The
panel then held that Chancellor Birgeneau, Executive Vice
Chancellor Breslauer, and Police Chief Celaya, who were in
the police chain of command, did not have sufficient
personal involvement in the alleged acts of force. The panel
held that summary judgment should have been granted by
the district court on these claims, and the panel reversed and
remanded for the district court to do so.

    Addressing supervisory force claims against University
of California Police Lieutenant DeCoulode and Sergeant
Tucker, the panel noted that a number of the plaintiffs had
failed to identify the police officers who used excessive
force against them and failed to show that these unnamed
officers were among those in Lieutenant DeCoulode or
Sergeant Tucker’s chain of command. Nor had these
plaintiffs provided evidence that Lieutenant DeCoulode or
Sergeant Tucker ordered or failed to stop any action that they
knew or reasonably should have known would cause the
officer to use excessive force.

    As to the supervisory force claims brought by plaintiffs
that had identified the subordinate officers, the panel held
that even assuming, without deciding, that the named
subordinate officers used excessive force against each
plaintiff, plaintiffs had not met their required burden to show
                  FELARCA V. BIRGENEAU                      7

the law was clearly established at the time that the officers’
baton strikes violated their constitutional rights. Because
plaintiffs had not shown a violation of a clearly established
right, it necessarily followed that Lieutenant DeCoulode and
Sergeant Tucker could not have violated a clearly
established right by supervising the officers who allegedly
used force against plaintiffs.

    Concurring, Judge Watford joined all but section III of
the court’s opinion. In his view, the officers used excessive
force when they struck plaintiffs with batons solely for the
purpose of dispersing the crowd. Nonetheless, he believed
that the officers were entitled to qualified immunity because
the law at the time they acted did not clearly establish the
illegality of their conduct. He would rule for the defendants
on the direct force claims solely on that basis.


                        COUNSEL

J. Daniel Sharp (argued) and Rebecca M. Suarez, Crowell &
Moring LLP, San Francisco, California; Colin M. Proksel,
Crowell & Moring LLP, Irvine, California; Russell M. Perry
(argued) and Zachery A. Lopes, Rains Lucia Stern St. Phalle
& Silver PC, Ontario, California; for Defendants-
Appellants.

Shanta Driver (argued) and Ronald Cruz, United For
Equality and Affirmative Action Legal Defense Fund,
Detroit, Michigan, for Plaintiffs-Appellees.
8                 FELARCA V. BIRGENEAU

                         OPINION

WALLACE, Circuit Judge:

   University officials appeal from the denial of qualified
immunity for the use of batons against protestors by
university police officers. We have jurisdiction under

28 U.S.C. § 1291

, and we reverse and remand.



    Thousands of protestors, inspired by the Occupy Wall
Street movement, held a rally at the University of California,
Berkeley on November 9, 2011. The protestors planned in
advance to construct an encampment during the rally in
violation of university policy. Berkeley administrators
became aware of the plan weeks before when protest
organizers distributed flyers seeking tents and other camping
supplies. Driven by a concern over the health and safety risks
that might accompany a long-term encampment, a team of
university administrators preemptively developed an
operational plan to deal with the protests and asked campus
police to be ready to enforce the university’s existing no-
camping policy. Two days before the rally, university
administrators warned students in a campus-wide email that
the no-camping policy would be enforced.

    At noon on November 9, some protestors engaged in a
peaceful rally without incident. A few hours later, however,
the protestors erected tents. After reading a dispersal order
to the protestors, police took the tents down when the
protestors refused to do so. Soon, the protestors began
setting up more tents in the same area. The police returned
wearing riot gear. Many of the protestors formed a human
chain to block officers from reaching the tents. Police gave
several bullhorn warnings ordering the protestors to take
                  FELARCA V. BIRGENEAU                      9

down the tents and disperse, although some protestors could
not understand the warnings. When the warnings had no
effect, officers then used their hands and batons to move the
crowd, gain access to the tents, and maintain a perimeter
while dismantling the encampment. Some protestors
attempted to grab the officers’ batons, shouted, and pushed
against them. At least one protestor ended up in the hospital.
Following the afternoon’s events, university administrators
tried to compromise with the protestors, agreeing to round-
the-clock protests so long as the protestors did not set up
encampments. The protestors rejected the offer, shouting
profanities.

    That evening police made a coordinated effort to take
down additional tents protestors had set up. Police again
gave bullhorn warnings to take down the tents and disperse,
but again some protestors could not understand the
warnings. When the protestors continued to block the police,
the police again used their hands and batons to access and
remove the tents. The police arrested at least thirty-six
protestors throughout the day for obstructing the officers and
resisting arrest. At least one more protestor ended up in the
hospital following the evening’s events.

    Subsequent to the November 9 protests, some of the
protestors filed the instant action against university
administrators and police officers, alleging the officers used
excessive force against them while removing the tents.
Defendants moved for summary judgment on the ground of
qualified immunity. The district court denied summary
judgment motions by two University of California Police
Department (UCPD) officers as to direct excessive force
claims, and by five university administrators and three
UCPD officers as to supervisory excessive force claims. In
denying the motions, the district court concluded that triable
10                 FELARCA V. BIRGENEAU

issues of fact existed as to the reasonableness of defendants’
actions. Defendants appealed.

    We review de novo the denial of a motion for summary
judgment predicated on qualified immunity. Sjurset v.
Button, 

810 F.3d 609, 614

 (9th Cir. 2015). Summary
judgment is granted only when there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law. 

Id.

 We view the evidence in the
light most favorable to the nonmoving party. 

Id.

    Qualified immunity protects public officials from a court
action unless their conduct violated a constitutional right that
was clearly established at the time. City and County of San
Francisco v. Sheehan, 

135 S. Ct. 1765, 1774

 (2015). The
relevant inquiry requires us to ask two questions: (1) whether
the facts, taken in the light most favorable to the non-moving
party, show that the officials’ conduct violated a
constitutional right, and (2) whether the law at the time of
the challenged conduct clearly established that the conduct
was unlawful. Saucier v. Katz, 

533 U.S. 194

, 201 (2001). A
plaintiff must prove both steps of the inquiry to establish the
officials are not entitled to immunity from the action. Marsh
v. County of San Diego, 

680 F.3d 1148, 1152

 (9th Cir. 2012).
We may address the steps in either order. Pearson v.
Callahan, 

555 U.S. 223, 236

 (2009).

    Under the first step of the analysis, police use of force
violates the Fourth Amendment if it is objectively
unreasonable under the circumstances. Graham v. Connor,

490 U.S. 386, 388

 (1989). We assess reasonableness by
balancing “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
                   FELARCA V. BIRGENEAU                      11

countervailing governmental interests at stake.” 

Id. at 396

(internal quotation marks omitted).

    Under the second step, we consider whether the law was
clearly established at the time of the challenged conduct.
Sjurset, 

810 F.3d at 615

. The Supreme Court has repeatedly
told courts “not to define clearly established law at a high
level of generality.” Sheehan, 135 S. Ct. at 1775–76. The law
must have been clear enough that “every reasonable official”
would know he or she was violating the plaintiff’s rights.
Sjurset, 

810 F.3d at 615

 (emphasis added), quoting Ashcroft
v. al-Kidd, 

563 U.S. 731

, 741 (2011).



   We first examine the direct force claims. Plaintiffs C.
Anderson and Crawford assert claims against Officer
Lachler, and plaintiffs Uribe and J. Anderson assert claims
against Sergeant Tucker. Each plaintiff admits linking arms
with other students to block the officers’ access to the tents.

    C. Anderson alleged that Officer Lachler jabbed him in
the back with the tip of her baton at least six times at the
afternoon protest. C. Anderson did not leave the protest
immediately after the alleged incident with Officer Lachler
and returned for the evening protest. C. Anderson testified
that he received the administration’s email warning that tents
were not permitted. He also heard dispersal orders and did
not leave. He testified that he stayed in the front of the crowd
intentionally because “he could physically withstand the
blows.”

   Crawford alleged that Officer Lachler repeatedly jabbed
him with her baton in the torso at the afternoon protest.
Crawford left the protest to attend a pre-existing
appointment and dinner at a friend’s house, and then
12                FELARCA V. BIRGENEAU

returned for the evening protest. Crawford did not receive
medical attention for any injuries from Officer Lachler.
Crawford testified that while he could not hear whether the
officer speaking through the bullhorn had given a dispersal
order, he “didn’t think that we’d been asked to leave the
number of times required.”

    Uribe alleged that Sergeant Tucker pushed and hit him
with Sergeant Tucker’s baton, including with jab and
overhand strikes to Uribe’s body and hand. Uribe developed
a welt on his hand, which he treated with ice at home. After
an interview with a news organization about the events, he
returned for the evening protest. Uribe testified that he heard
dispersal orders, but never tried or even considered leaving
the protest.

    J. Anderson alleged that Sergeant Tucker caused him to
“tumble to the ground” when Sergeant Tucker “knocked
back” another protestor resulting in “a domino effect.” He
also alleged that Sergeant Tucker hit him “in the neck and
face with [Sergeant Tucker’s] baton three times.” He
experienced swelling in his face, but left the student health
center without seeing a doctor to meet with friends and
returned for the evening protest. J. Anderson testified that he
heard dispersal orders and could have left the protest, but
chose not to. He responded to police instructions to “Move,
move!” with “I’m sorry sir, but I will not.” He later posted
on his blog a photograph from the rally captioned “[a]n
officer gives the dispersal order - though we make him do it
our way.”



    We turn to step one of the qualified immunity analysis.
To evaluate the nature and quality of the intrusions on
plaintiffs’ Fourth Amendment interests, we consider the
                   FELARCA V. BIRGENEAU                       13

“type and amount of force inflicted” against them. Young v.
County of Los Angeles, 

655 F.3d 1156, 1161

 (9th Cir. 2011).
While baton blows are a type of force capable of causing
serious injury, 

id. at 1162

, jabs with a baton are less intrusive
than overhand strikes. Defendants’ expert opined that
officers are trained that tip end jabbing, pushing, shift
striking, and chopping are reasonable uses of force when
individuals actively resist lawful orders. UCPD’s crowd
management policy permitted the use of batons “in a crowd
control situation” “to move, separate, or disperse people,”
except to strike intentionally a prohibited area, such as the
head, unless confronting deadly force.

    Here, each plaintiff, except for J. Anderson, alleged that
he was hit by a baton in the torso or extremities. C. Anderson
and Crawford alleged only jab strikes by Officer Lachler.
Uribe alleged jab and overhand strikes by Sergeant Tucker.
While J. Anderson did not specify the type of strike Sergeant
Tucker allegedly used against him, the portion of the video
he points to shows Sergeant Tucker’s baton brush across the
top of his head. Later in the same video, Sergeant Tucker’s
baton appears to make contact with J. Anderson’s face or
head again before Sergeant Tucker falls backward onto the
ground. In both cases, the force appears incidental to moving
and tousling with the crowd.

    We may also consider the severity of injuries in
evaluating the amount of force used. See Santos v. Gates,

287 F.3d 846, 855

 (9th Cir. 2002). We may infer from the
minor nature of a plaintiff’s injuries that the force applied
was minimal. See Jackson v. City of Bremerton, 

268 F.3d 646, 652

 (9th Cir. 2001). While injuries are not a
precondition to section 1983 liability, their absence can
suggest a lesser degree of force when that force is of the type
likely to cause injuries. See Santos, 

287 F.3d at 855

, citing
14                FELARCA V. BIRGENEAU

Robinson v. Solano County, 

278 F.3d 1007, 1015

 (9th Cir.
2002) (en banc). We would generally expect injuries from a
forceful use of baton blows. See Young, 

655 F.3d at 1162

.
But here, none of the plaintiffs suffered injuries from
defendants’ blows that required medical treatment or kept
him from returning to the protest. Thus, we conclude that,
even if the force used was of a type that is generally
intrusive, the amount of force applied here was minimal.

    On the other side, when evaluating the government’s
interest, we may consider such factors as “the severity of the
crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Graham, 

490 U.S. at 396

. We may also consider the
availability of less intrusive alternatives to the force
employed and whether warnings were given. S.B. v. County
of San Diego, 

864 F.3d 1010, 1013

 (9th Cir. 2017). Of these
factors, the most important is whether the suspect posed an
immediate threat to the safety of the officers or others. 

Id.

    Here, the government’s interest began with an attempt
by the police to remove the protestors’ tents. While the tents
themselves posed no threat and the protestors appeared
guilty only of misdemeanors, the university was not required
to permit the “organized lawlessness” conducted by the
protestors. See Forrester v. City of San Diego, 

25 F.3d 804, 807

 (9th Cir. 1994). The university had a legitimate interest
in “quickly dispersing and removing [the] lawbreakers with
the least risk of injury to police and others.” 

Id.

 Similar to
Jackson, in which we held the government had a “safety
interest in controlling” a mass of people, the protestors here
“substantially outnumbered” officers, “refused to obey the
officers’ commands to disperse,” “shouted at the officers,”
and “engaged the officers in verbal and physical
                   FELARCA V. BIRGENEAU                      15

altercations.” 268 F.3d at 652–53. University officials
offered to compromise, but protestors rejected the offer. The
protestors also ignored warnings by police and university
officials before and during the protest. Like Jackson, it is
undisputed that these four plaintiffs in particular understood
police had ordered them to disperse, ignored or dismissed
those orders, and instead directly interfered with officers’
attempt to enforce university policy by linking arms to block
officers’ access to the tents. See id. at 653. Under these
circumstances, the government had a legitimate interest in
applying minimal force to maintain order and enforce
university policy.

    Uribe, the only plaintiff alleging an overhand strike by
either defendant, took the interference a step further.
Plaintiffs’ videos show Uribe pushing and kicking at
Sergeant Tucker and another officer, grabbing the officers’
batons, shaking his fist at officers, and throwing leaves from
a nearby bush into officers’ faces. While the district court
found that some of Uribe’s actions may have been defensive,
Uribe’s throwing leaves and shaking his fist – actions he
admitted doing – were unequivocally attempts at
provocation.

    Plaintiffs rely on Young v. County of Los Angeles,

655 F.3d 1156

 (9th Cir. 2011) and Headwaters Forest
Defense v. County of Humboldt, 

276 F.3d 1125

 (9th Cir.
2002) to support their argument that the officers acted
unreasonably. We are not persuaded. In Young, an officer
sprayed a driver with pepper spray from behind, while the
driver sat on a curb eating broccoli after refusing to return to
his vehicle, and later hit the driver with a baton while he “lay
face-first” on the ground. 655 F.3d at 1158–59, 1164. In
Headwaters, the officers applied pepper spray with Q-tips to
the eyes of protestors “sitting peacefully” while chained
16                FELARCA V. BIRGENEAU

together with self-releasing metal sleeves that rendered them
immobile, after they refused to leave the protest site.
276 F.3d at 1127–30. When Young and Headwaters are
viewed together, two important distinctions emerge. First,
unlike the plaintiffs in Young and Headwaters who restricted
their own movement by refusing to comply with police
orders, the protestors here purposefully restricted the
officers’ movement by refusing to let them pass. Second, the
situation confronting the officers here was far more
threatening because they were greatly outnumbered and
verbally and physically provoked. See Jackson, 268 F.3d at
652–53. While we are careful not to attribute other
protestors’ actions to those plaintiffs who do not admit
physically provoking police, “the context of the officers’
actions must be considered.” Nelson v. City of Davis,

685 F.3d 867, 886

 (9th Cir. 2012).

    On balance, applying the Graham analysis, we conclude
that Sergeant Tucker and Officer Lachler did not use
excessive force against these four plaintiffs. The officers
were entitled to use the minimal force they did to move the
crowd in order to gain access to the tents erected in violation
of university policy. Given that no Fourth Amendment
violation occurred, we need not reach the second step of the
qualified immunity analysis. We reverse and remand for the
district court to grant summary judgment in favor of
Sergeant Tucker and Officer Lachler.



   We now turn to the supervisory force claims. Five
university administrators, Chancellor Birgeneau, Executive
Vice Chancellor Breslauer, Vice Chancellor Le Grande,
Associate Chancellor Williams, and Associate Vice
Chancellor Holmes, and one UCPD police officer, Police
Chief Celaya (collectively, the UC administrators) appeal
                  FELARCA V. BIRGENEAU                      17

from the denial of summary judgment on supervisory claims
by twenty-one plaintiffs. Two UCPD officers, Lieutenant
DeCoulode and Sergeant Tucker, appeal from the denial of
summary judgment on supervisory claims by thirteen
plaintiffs. Plaintiffs allege that the supervisory defendants
planned the police response and failed to stop assaults by the
police.



    We consider first the UC administrators. The UC
administrators developed an operational plan for dealing
with the protests weeks before they took place. The plan did
not specify any particular use of force that would be
permitted in enforcing removal of tents that were erected.
The plan stated as its goals “protect[ing] the safety” of all
parties, “prevent[ing] violence, damage and other criminal
activity,” and “achieving specific public safety and law
enforcements [sic] objectives that arise with only that use of
force that is necessary and reasonable.” It specifically
provided that pepper spray should not be used as a first effort
to disperse a crowd and tear gas should be used only in
extreme circumstances.

    Chancellor Birgeneau, Executive Vice Chancellor
Breslauer, and Police Chief Celaya were in the police chain
of command. Each testified he did not direct any police
officer to use force, or to use any particular level or type of
force in removing the tents.

   Chancellor Birgeneau was travelling overseas on
university business when the protests occurred. He received
regular updates on the protests by email. He reaffirmed his
support of the university’s no-camping policy, telling
Executive Vice Chancellor Breslauer that it was “critical that
we do not back down on our no encapment [sic] policy.” He
18                FELARCA V. BIRGENEAU

was aware by the late afternoon that police had used batons
at the afternoon protest.

    Executive Vice Chancellor Breslauer observed parts of
the afternoon protest but did not see police using batons. He
was aware by the late afternoon that police had used batons
to access the tents and protestors had been injured.

    Police Chief Celaya was in contact with the police
commander in charge, who was responsible for overseeing
the operation. Celaya did not witness the afternoon protest.
During the evening protest, he was on a balcony fifty yards
away. It was dark. Although Celaya could hear an officer
using a bullhorn, he could not see individual actions taken
by particular officers. After midnight, he reported the day’s
events to the other UC administrators based in part on
information received from the commander in charge.

    Vice Chancellor Le Grande, Associate Chancellor
Williams, and Associate Vice Chancellor Holmes were not
in the police chain of command and did not have supervisory
authority over any police officers.



    An official may be liable as a supervisor only if either
(1) he or she was personally involved in the constitutional
deprivation, or (2) a sufficient causal connection exists
“between the supervisor’s wrongful conduct and the
constitutional violation.” Starr v. Baca, 

652 F.3d 1202, 1207

(9th Cir. 2011). “The requisite causal connection can be
established by setting in motion a series of acts by others, or
by knowingly refusing to terminate a series of acts by others,
which the supervisor knew or reasonably should have known
would cause others to inflict a constitutional injury.” 

Id.

 at
1207–08, quoting Redman v. County of San Diego, 942 F.2d
                  FELARCA V. BIRGENEAU                     19

1435, 1447 (9th Cir. 1991), and Dubner v. City and County
of San Francisco, 

266 F.3d 959, 968

 (9th Cir. 2001) (internal
alterations, citations, and quotation marks omitted). There is
no respondeat superior liability under section 1983. Jones v.
Williams, 

297 F.3d 930, 934

 (9th Cir. 2002), citing Monell
v. Dep’t of Soc. Servs., 

436 U.S. 658, 691

 (1978). Officers
may not be held liable merely for being present at the scene
of a constitutional violation or for being a member of the
same operational unit as a wrongdoer. 

Id.

 at 936–37.



    We first consider Vice Chancellor Le Grande, Associate
Chancellor Williams, and Associate Vice Chancellor
Holmes, none of whom was in the police chain of command.
Because these administrators had no supervisory authority
over the police who allegedly committed the violations, they
did not participate in or cause such violations. See Starr,
652 F.3d at 1207–08. They cannot be supervisors of persons
beyond their control. See Reid v. Kayye, 

885 F.2d 129, 132

(4th Cir. 1989) (holding defendants not liable under
section 1983 on a theory of supervisory liability because
state law “does not place [them] in a supervisory position”).
Therefore, the district court erred in denying summary
judgment to these three administrators.



    We next consider the other UC administrators,
Chancellor Birgeneau, Executive Vice Chancellor
Breslauer, and Police Chief Celaya, each of whom was in the
police chain of command. Viewing the facts in the light most
favorable to plaintiffs, as we must, we assume these officials
ordered police to remove the tents, acquiesced in the use of
batons to effectuate removal of the tents, and learned that
20                FELARCA V. BIRGENEAU

batons had been used during the afternoon protest and
injuries had occurred.

    The question, then, is whether these facts show the
degree of personal involvement or causal connection
required by our precedents. See Starr, 

652 F.3d at 1207

. We
hold that they do not. Plaintiffs’ brief does not describe any
specific instance of force against those plaintiffs alleging
only supervisory claims. Although some submitted
affidavits claiming that police officers used force against
them, they have not connected the force applied by each
officer to the actions of these administrators. Accordingly,
they have failed to establish that the three UC administrators
in the police chain of command “set[] in motion a series of
acts” that they “knew or reasonably should have known”
would cause the officers “to inflict a constitutional injury.”
See 

id.

 at 1207–08. Without that crucial connection,
plaintiffs’ argument is nothing more than an attempt to hold
the UC administrators liable solely by virtue of their office.
That argument fails because “there is no respondeat superior
liability under section 1983.” Jones, 

297 F.3d at 934

.

    The UC administrators’ alleged directive to “take all
tents down immediately” does not supply the missing
connection. In asking police to remove the tents, the UC
administrators had no reason to assume that police would use
force beyond the bounds of UCPD policy. Their awareness
that some protestors had been injured during the afternoon
protest hardly shows police exceeded those bounds or that
they would during the evening protest. Injuries could be
caused by lawful uses of the batons or by others in the crowd.

    We conclude that Chancellor Birgeneau, Executive Vice
Chancellor Breslauer, and Police Chief Celaya did not have
sufficient personal involvement in the alleged acts of force.
Summary judgment should have been granted by the district
                  FELARCA V. BIRGENEAU                      21

court on these claims, and we reverse and remand for the
district court to do so.



  We next turn to the supervisory force claims against
UCPD officers Lieutenant DeCoulode and Sergeant Tucker.

    Plaintiffs Alvarado-Rosas, Kingkade, Klinger, and
Wagaarachchi have not identified any police officer that
allegedly used force against them. Likewise, plaintiffs
Escobar, Helm, and Stumpf have not identified any UCPD
officer that allegedly used force against them. While
plaintiffs need not bring a direct force claim, they still must
show (1) that an officer used excessive force against them,
Jackson, 268 F.3d at 653–54, and (2) the requisite causal
connection between that officer, on the one hand, and
Lieutenant DeCoulode or Sergeant Tucker, on the other.
Starr, 

652 F.3d at 1207

. Even assuming that a plaintiff could
meet both steps without ever identifying the underlying
officer (for example, by naming officers disjunctively), these
plaintiffs have not done so. None has shown that the officer
who allegedly used excessive force against him or her was
among those in Lieutenant DeCoulode or Sergeant Tucker’s
chain of command. Nor have they provided evidence that
Lieutenant DeCoulode or Sergeant Tucker ordered or failed
to stop any action that he “knew or reasonably should have
known” would cause the officer to use excessive force. See

id.

 We reverse and remand for the district court to grant
summary judgment in favor of defendants on these claims.

    Plaintiff McDonald did not allege that any officer used
force against him while acting under the command of either
Lieutenant DeCoulode or Sergeant Tucker. We reverse and
remand for the district court to grant summary judgment in
favor of both officers on McDonald’s claims.
22                FELARCA V. BIRGENEAU



   After eliminating the above claims, that still leaves
supervisory claims of (1) plaintiffs Felarca, Mulholland, and
Tombolesi against both Sergeant Tucker and Lieutenant
DeCoulode, and (2) plaintiffs Lynch and Chung against
Lieutenant DeCoulode.

                              1.

    Plaintiff Felarca alleged that three named UCPD officers
jabbed her in her abdomen with their batons, while acting
under the command of Lieutenant DeCoulode and Sergeant
Tucker. She later went to the hospital and had multiple
bruises on her ribs and midsection.

    Plaintiff Mulholland alleged that two named UCPD
officers jabbed her in her abdomen with their batons, while
acting under the command of Lieutenant DeCoulode and
Sergeant Tucker. She left the front of the crowd after the
blows. She had a bruise on her arm and on her abdomen. She
was diagnosed with a cracked rib.

    Plaintiff Lynch alleged that at the afternoon protest a
named UCPD officer struck him with an overhand baton
swing on his right forearm, while acting under the command
of Lieutenant DeCoulode. He had swelling and bleeding. He
treated his arm with ice from a nearby café and later went to
the emergency room to have his arm x-rayed. He returned
for the evening protest.

    Plaintiff Tombolesi alleged that two named UCPD
officers jabbed him in his ribcage and chest with their
batons, “perhaps ten times,” at the afternoon protest. He also
alleged that three named UCPD officers hit him “many more
times,” even after he had fallen over, while acting under the
                   FELARCA V. BIRGENEAU                      23

command of Lieutenant DeCoulode and Sergeant Tucker.
He was sore and had trouble breathing. He went home for a
few hours and returned for the evening protest.

    Plaintiff Chung alleged that a named UCPD officer
jabbed him in his arms and ribcage with the officer’s baton,
while acting under the command of Lieutenant DeCoulode.
At the time, he was recovering from a broken leg and still
wearing a walking boot. He went to the emergency room.

    Lieutenant DeCoulode testified that he commanded one
of the officers named by plaintiffs Felarca, Mulholland,
Lynch, and Tombolesi during the protest. Sergeant Tucker
testified he was a supervisor over lower-ranking officers
present. Plaintiffs offered evidence showing, they argue, that
Lieutenant DeCoulode and Sergeant Tucker were standing
nearby and giving orders to other officers, including one of
the named officers, during the alleged incidents of force.

                              2.

    Under the first step of the qualified immunity analysis,
we must decide whether an officer supervised by Lieutenant
DeCoulode or Sergeant Tucker used excessive force against
each plaintiff. We believe this is a closer call than the direct
force claims. Four of the five plaintiffs sought medical
treatment for their injuries, and at least one of them alleged
experiencing overhand strikes to his arm. None admitted
provoking the police. But even assuming, without deciding,
that subordinate officers used excessive force against each
plaintiff, we conclude that plaintiffs Felarca, Mulholland,
Lynch, Tombolesi, and Chung have not met their required
burden to show the law was clearly established at the time
that the officers’ baton strikes violated their constitutional
rights. Sjurset, 

810 F.3d at 615

.
24                FELARCA V. BIRGENEAU

    To decide whether the law was clearly established under
the second step, we must first “defin[e] the law at issue in a
concrete, particularized manner.” Shafer v. County of Santa
Barbara, 

868 F.3d 1110, 1117

 (9th Cir. 2017). We define the
law at issue here as follows: whether an officer violates
clearly established law when, after several warnings to
disperse have been given, the officer uses baton strikes on a
plaintiff’s torso or extremities for the purpose of moving a
crowd actively obstructing the officer from carrying out
lawful orders in a challenging environment. To meet their
burden, plaintiffs must generally identify a case where an
officer acting under similar circumstances was held to have
violated the Fourth Amendment. See 

id.,

 citing White v.
Pauly, 

137 S. Ct. 548, 552

 (2017) (per curiam); Sorrels v.
McKee, 

290 F.3d 965, 969

 (9th Cir. 2002).

    Plaintiffs have identified no such case. They devote scant
argument to the second step and fail to address it at all as to
these claims. Although the same cases supporting the first
step may also support the second step, they do not do so here.
For the reasons discussed in Part III.A, supra, plaintiffs’
reliance on Young and Headwaters does not convince us that
every reasonable officer would have concluded that the case
law existing at the time of the force alleged here clearly
established that such force was excessive.

    Because these five plaintiffs have not shown that any
officer violated a clearly established right, it necessarily
follows that Lieutenant DeCoulode and Sergeant Tucker
cannot have violated a clearly established right by
supervising the officers who allegedly used force against
these plaintiffs. Accordingly, we reverse the district court on
the supervisory claims brought by these five plaintiffs
against Lieutenant DeCoulode and Sergeant Tucker, and
                   FELARCA V. BIRGENEAU                       25

remand for the district court to enter summary judgment in
favor of the defendants.



   In conclusion, we reverse and remand for the district
court to grant summary judgment in favor of all defendants.
Each party shall bear its own costs.

   REVERSED             AND        REMANDED,             WITH
INSTRUCTIONS.



WATFORD, Circuit Judge, concurring:

    I join all but section III of the court’s opinion.

    In my view, the officers used excessive force when they
struck plaintiffs with batons solely for the purpose of
dispersing the crowd. The level of force used here was
intermediate, not minimal, and neither plaintiffs nor the
other protestors posed a threat to the safety of the officers (or
anyone else) that could justify the use of intermediate force.
See Young v. County of Los Angeles, 

655 F.3d 1156

, 1161–
63 (9th Cir. 2011). Yes, plaintiffs were engaged in a mild
form of “active resistance,” in the sense that they, along with
other protestors, locked arms and refused commands to let
the officers reach the tents. But the protestors were
otherwise peaceful, and the university’s interest in
overcoming their resistance was insubstantial. There was no
urgent need to remove a handful of tents from campus. The
tents weren’t harming anyone; they weren’t even blocking
access to campus facilities. The university administrators
just wanted to avoid the spectacle of having the tents remain
overnight. That desire isn’t weighty enough to justify the
26                FELARCA V. BIRGENEAU

serious risk of injury posed by striking students with metal
batons.

    Nonetheless, the officers are entitled to qualified
immunity because the law at the time they acted did not
clearly establish the illegality of their conduct. I would rule
for the defendants on the direct force claims solely on that
basis.