Pepperspray victim can sue for attack in ’17
A woman who was peppersprayed while supporting rightwing provocateur Milo Yiannopoulos during a protest at UC Berkeley in 2017 can sue a protester who allegedly set her up for the attack by shining a flashlight in her face, a federal appeals court has ruled.
The Ninth U.S. Circuit Court of Appeals upheld most of a federal judge’s dismissal of Kiara Robles’ lawsuit, rejecting her damage claims against the city
of Berkeley, former UC Berkeley Chancellor Nicholas Dirks and UC President Janet Napolitano. The court also rejected Robles’ argument that U.S. District Judge Claudia Wilken was biased and should have been disqualified from the case, because she graduated from UC Berkeley’s law school.
But the court reinstated Robles’ claim that Raha Mirabdal, one of the protesters, aided assailants who “attacked (Robles)
The client’s suit presence is “based in essentially the crowd on near my (the plaintiff) demonstrating against racism and fascism.”
Rachel Lederman, lawyer for defendant Raha Mirabdal
with pepper spray, bear mace and flag poles.”
Robles’ allegations that Mirabdal helped other protesters surround her, shined the flashlight to distract her, and later attacked other supporters of Yiannopoulos were enough to support a lawsuit claiming that Mirabdal “was a participant in a coordinated attack,” the threejudge panel said Friday.
Yiannopoulos, a former Breitbart News editor known for attacks on Islam and feminism, was scheduled to speak on the Berkeley campus in February 2017. A demonstration against him began peacefully, but masked anarchists then emerged and began hurling smoke bombs, smashing windows and ripping down metal barricades.
Police said at least five people were injured. The university canceled Yiannopoulos’ speech.
Robles, an Oakland resident, was doing an interview with a KGOTV news reporter when an unseen assailant peppersprayed her. Her lawsuit blamed the city and the university for failing to protect her and sought $23 million in damages.
In a September 2018 order dismissing the suit, Wilken said Robles had failed to present evidence that Berkeley selectively withheld police protection from events sponsored by conservatives. The judge also said the UC president and the Berkeley chancellor had no legal obligation to protect Robles from the actions of others.
The appeals court upheld those decisions Friday. The court also upheld Wilken’s refusal to allow Robles to be represented by her chosen lawyer, Larry Klayman, a conservative activist who practices law outside California and has been found ethically unfit for practice by several courts elsewhere. The appeals court noted that plaintiffs in civil cases have no absolute right to legal representation and that Robles had access to another lawyer in Wilken’s court.
Klayman said he was pleased that the court had allowed the suit to proceed against Mirabdal, but the rest of the ruling was “outrageous” and Robles will ask the full appeals court for a new hearing.
Rachel Lederman, a lawyer for Mirabdal, said she would also seek a rehearing.
The suit is “based essentially on my client’s presence in the crowd near Robles demonstrating against racism and fascism,” Lederman said.