The Cal Football Fan

The law in the restraining order ruling

(Note: I am a second year law student. By no means am I saying that I am a full expert on the law or that I am completely accurate. It means that I know some about the law, and that I have studied injunctions and restraining orders which are along the lines of what Cal has requested against the tree-sitters. This is just my interpretation of the events.)

On Wednesday, a judge denied Cal’s request to remove the tree protesters. What makes this case interesting is that Cal requested quick action, which makes the standards of winning the immediate injunction a bit more difficult for Cal. From what I can gather from the Chronicle article and from the Scout.com article, Cal wanted an immediate injunction because propane tanks have been spotted up in the trees for cooking purposes, and there have been human excrement spills from the trees. This is based off a broader request for an injunction to remove the protesters.

To get an injunction immediately, Cal has to show that its case is much stronger than the protesters’ case. This is determined by comparing four factors on a sliding scale basis. This means that if one factor is very strong, and the other factors are mediocre, the one strong factor will win out. If all are factors not really in favor of either side, then there will probably not be an injunction granted. The factors are:

1. The applicant is likely to be successful on the merits of the case

2. The applicant will suffer irreparable harm without the injunction

3. The harm to the opposing party (protesters) from the injunction is outweighed by the harm to the applicant without the injunction (balancing of the harms)

4. That public interest favors the injunction.

I will try to give my own analysis and then compare against the court’s ruling.

On factor 1, it seems as if Cal has a good chance of winning an injunction based off of the merits of its case. For one, it is clearly Cal property that the protesters are on. Also, there is a health and safety issue involved with with the propane tanks and the human excrement falling from the trees. From my perspective, Cal should have no problem winning the overall injunction and thus are likely to be successful on the merits of its case.

2. This is a weak one for Cal. Cal’s strongest claim that they will suffer irreparable harm is that there will be a fire caused by the propane tanks and that the trees will burn down. However, the likelihood of this seems pretty slim as the protesters clearly want the trees to remain. Plus, Cal does want to remove the trees, so will it really be harm to them if the trees burn down? Kind of… only if there is damage elsewhere.

3. This is the one that probably wins it for the protesters. They have a much greater chance of being harmed by an immediate injunction than does Cal if an injunction if not granted. The protesters currently are living in the trees. Their lives and their possessions are there, and they fear that if they abandon the trees, Cal will immediately cut them down. While I am not saying that I believe that Cal would do so, the protesters do believe it. If the trees are indeed cut down, then the protesters will have lost all that they have been fighting for, hence causing great harm to them. Cal on the other hand, would have the fear of fire in the trees for an extra month. Seems like the protesters clearly win this one.

4. Public interest in this case is pretty split. There is the City of Berkeley and the protester supporters that want the protest to continue in the trees. On the other hand, there is Cal and its students fighting to take the protesters out of the trees… pretty much a wash.

After considering the four different factors, it seems like a close split. Cal clearly wins factor 1, but the protesters clearly win factor 3. The other 2 factors are pretty much neutral. With a pretty even split, the court probably chooses to side on the conservative side and to let the status quo stand.

Hence, though it seems unfair that Cal cannot have court approval to remove the protesters from the trees, it may not be just a bias against Cal; it is probably well-rooted in law. Chances are at the actual trial coming up in October, Cal will win an injunction against protesters and will be able to remove them with full court support. Even now, Cal has the law on its side as the protesters are on Cal property. However, with Cal seeking every peaceful measure involved, it will simply have to wait another month for the court injunction.

The court itself does say that Cal has a decent chance of winning its case. However, it simply did not show enough of a danger from fire or from the human excrement. As a result, the protesters are not removed immediately. Seems spot on to me.

So why does this neutrality tilt towards the protesters? This tilt is to protect their due process rights to be heard. Basically Cal is asking for an injunction against the protesters without their side being fully prepared to argue their case. This would bypass their due process rights. To justify the bypassing of the protesters’ rights, Cal must show an overwhelming case of harm, which it simply does not have.