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.