From Tuesday’s decision by Judge Mark Scarsi (C.D. Cal.) in Weinberg v. Nat’l Students for Justice in Palestine; recall that the factual claims at this point are just allegations, and the court concludes only that, if the allegations are found to be true, plaintiffs could prevail:
According to the first amended complaint, in the wake of Hamas’s October 7, 2023, terrorist attack on Israel and Israel’s subsequent war in Gaza, a wave of protests and demonstrations swept the United States. Defendant NSJP, a “nationwide membership association,” launched the Popular University for Gaza movement, an initiative which involved a “coordinated pressure campaign against university administrations and trustees” through the establishment of “autonomous zones on … university campuses.”
One such protest was at UCLA. On April 25, 2024, less than one week after NSJP launched the Popular University for Gaza movement, UCLA’s chapter of NSJP “in collaboration with UC Divest …, People’s City Council, and a host of similar organizations,” created a “fortified encampment” near UCLA’s Royce Quad. According to an anonymous organizer, participants “amassed a large quantity of scrap wood and pallets to assemble barricades” and “erect[ed] a fortified camp out of the dust.” Protestors formed specialized teams dedicated to providing logistical support, medical care, and security, as well as interfacing with the media. Organizers “limited entry [into the encampment] to only two zones, and established a complex check-in, wristband, and vouching system” enforced by “teams of armed members of the encampment and ‘human phalanxes.'” On April 28, protestors expanded the encampment’s perimeter to purportedly “use the walls of the adjacent buildings to [their] advantage” and amplify the encampment’s disruptive effect to the broader campus.
The encampment and surrounding areas allegedly included a great deal of antisemitic imagery. (See, e.g., [Complaint] ¶ 98–100 (detailing antisemitic imagery on and around the encampment, including a “van festooned with Swastikas” parked outside the encampment “blaring antisemitic propaganda”).) There were also numerous reports of violence and threats of violence directed at Jewish members of the community throughout the duration of the encampment.
Protestors also purportedly physically prevented Jews from entering the encampment. The following day, campus police announced their intent to clear the encampment. In response, protestors “collected gas masks, handed out goggles and helmets, and prepared to hold [their] ground.” That night, when law enforcement attempted to clear the encampment, protestors and police clashed in a drawn-out confrontation. Eventually, in the early morning hours of May 2, law enforcement cleared the encampment. Organizers attempted to reestablish the encampment several times, including on May 6 and June 10. Each claims he was injured as a result of the encampment.
Professor Hoftman alleges he was assaulted by members of the encampment’s security team on April 29 because he was Jewish. Mr. Weinberg claims that he avoided the Royce Quad area for the duration of the encampment after hearing reports of violence and threats of violence aimed at Jews. Prior to the encampment, Mr. Weinberg “often would walk through the Quad.”
Mr. Tsives alleges that he would regularly show up to the encampment “dressed in a manner that made clear that he was Jewish, including wearing a visible Star of David necklace,” and attempt to pass through one of the encampment’s “checkpoints.” Each time, he was either “physically blocked” at the point of entry by the encampment’s security team or was “surrounded and forced out of the area by a ‘human phalanx.'” Eventually, Mr. Tsives had to take a longer route to get to his classes. Rabbi Gurevich claims he was verbally threatened on June 10 “[w]hen the same core of organizers attempted to reestablish an encampment near the UCLA law school.” A member of the new encampment’s security team “slapped Rabbi Gurevich’s phone out of his hand.”
The court allowed plaintiffs’ claims for civil rights conspiracy under 42 U.S.C. § 1985(3) to proceed, concluding that plaintiffs had adequately alleged “anti-Jewish violence and exclusion”:
Encampment organizers “established a complex check-in, wristband, and vouching system to keep out Zionists,” which was “enforced by teams of armed members of the encampment and human phalanxes.” Indeed, Mr. Tsives alleges that when he would attempt to cross through the encampment, he was “either physically blocked by uniformed members of the encampment’s ‘security teams'” or “surrounded and forced out of the area by a ‘human phalanx.” According to Tsives, he “was denied entry after the ‘security team’ saw his Star of David necklace.” “First-hand accounts” also assert that “groups of violent nonstudents … would emerge from the encampment to chase out anyone who waived an Israeli flag or otherwise showed support for Jews and Israel.” Moreover, on April 28, organizers expanded the encampment’s footprint so as to “use the walls of the adjacent buildings to [their] advantage, limiting Zionist access to two sides.”
In addition to allegations of Jewish exclusion, the complaint contains several allegations detailing separate acts of violence against Jews. Professor Hoftman alleges that, while he was conducting an interview and walking toward the encampment, “two or three individuals affiliated with the encampment” blocked his path. When he attempted to walk around them, “he was tackled.” According to the complaint, this violence was not unexpected, given allegations that PCC and NSJP’s social media posts encouraging followers to show up to the encampment carried a “strong implication that new arrivals should be ready for a fight with ‘Zionists,’ ‘the police,’ or both.” That PCC allegedly “published lists of supplies” including “goggles and shields likely to be used by the encampment’s ‘security teams,'” further shows that violence and exclusion were plausibly contemplated by the encampment’s organizers.
The sheer volume of alleged incidents of exclusion and violence against Jews sets this case apart from the two isolated incidents of violence alleged in [a previous case]. The Court is satisfied that Plaintiffs allegations, accepted as true and construed in their favor, raise an inference that encampment organizers, including NSJP and PCC, acted with an intent to deprive Plaintiffs of their Thirteenth Amendment rights. PCC and NSJP point to other allegations in the complaint that tend to suggest a different purpose than depriving Plaintiffs of their federal rights. (“The purpose was to cost the university money, to physically disrupt, and to express mass oppositional power.”) However, the law is clear that a purpose of depriving Plaintiffs of their federal rights need not be Defendants’ only purpose in order for Plaintiffs to have a valid § 1985(3) claim. Based on the totality of their allegations, Plaintiffs have plausibly alleged that NSJP and PCC acted at least in part to deprive Plaintiffs of their Thirteenth Amendment rights to be free from race-based violence and exclusion….
Plaintiffs have [also] plausibly alleged that [defendants] acted with the requisite discriminatory animus…. As discussed above, the complaint contains numerous allegations of exclusion and violence against Jews. (See, e.g., [Complaint] ¶ 145 (forceable exclusion of Mr. Tsives when encampment members saw his Star of David necklace); id. ¶ 132 (assault on Professor Hoftman).) Moreover, Plaintiffs allege that “[a]ntisemitic rhetoric and imagery on campus also intensified during the encampment.” For example, a “van festooned with Swastikas” was parked outside the encampment “blaring antisemitic propaganda from a bullhorn and speaker system.” After police removed the initial encampment, organizers allegedly “target[ed] buildings named after prominent Jews” when they attempted to erect a new encampment. That there were numerous incidents of violence and exclusion directed at Jews, that the encampment and surrounding areas were covered with antisemitic images and slogans, that organizers targeted buildings named after Jews when they tried to establish a new encampment, and that PCC and NSJP had organizers on the ground helping to lead the encampment, are all circumstantial allegations that raise an inference PCC and NSJP acted with a discriminatory animus toward Jews….
{In its reply brief, NSJP argues that, at most, Plaintiffs have alleged discriminatory animus against “Zionists” rather than “Jews.” Zionists, according to NSJP, are not a class protected by § 1985(3). The Court declines to consider this argument because NSJP did not raise it in its opening brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).}
The court also concluded that plaintiffs could go forward on their “hindrance” claim under § 1985(3):
The primary difference between the [§ 1985(3) obstruction and hindrance] claims is that, to succeed on a hindrance clause theory, the purpose of the conspiracy must “be to prevent or hinder the constituted state authorities from giving or securing to all persons within [a] state the equal protection of the laws.” Said another way, “the purpose must be to interfere with state law enforcement, not just to interfere with the persons seeking to exercise their legal rights.”
NSJP and PCC argue that Plaintiffs have not adequately pleaded that they acted with a purpose of hindering law enforcement. But Plaintiffs allege that thwarting police efforts to disassemble the encampment was a motivating goal of organizers both before and throughout the encampment’s duration. The complaint states that when deciding where to erect the encampment, organizers “chose a strategic hilltop location to avoid taking the low ground beneath Zionists and police.” (emphasis added) (internal quotation marks omitted).) One of the purposes behind the encampment’s security team was to “prevent the university, the police, and local fascists from harming the community.”
Eventually, members of the encampment were “radicaliz[ed] to the point of fighting the pigs [i.e., law enforcement] for 6 hours [when law enforcement attempted to clear the encampment on May 1 and May 2].” In anticipation of that conflict with police on the May 1 and May 2, encampment members “collected gas masks, handed out goggles and helmets, and prepared to hold [their] ground while the pigs slowly staged.” PCC allegedly encouraged this conflict with police in a May 1 social media post reading “KETTLE THE COPS CHALLENGE—LAPD F**CK OFF.”
Read together, these allegations plausibly raise an inference that a desire to hinder law enforcement’s ability to remove the encampment animated organizers, which allegedly included NSJP and PCC, throughout the encampment’s existence. And since the complaint adequately alleges that organizers intended to interfere with Jewish community members’ Thirteenth Amendment rights, it follows that their goal of hindering law enforcement’s ability to disperse the encampment was, in effect, a goal of hindering law enforcement’s ability to protect the rights of Jews….
The court rejected PCC’s First Amendment argument:
PCC contends that, at most, the complaint alleges that PCC expressed support for a protest, promoted it, and recruited for it, all of which are forms of speech and advocacy protected by the First Amendment. Accepting the allegations as true, the Court is not persuaded.
Plaintiffs do not seek to hold PCC liable for protected speech or protest activities directly; instead, the complaint alleges that PCC conspired to deprive Plaintiffs of their Thirteenth Amendment rights to be free from racial violence and race-based exclusion from public accommodations. Conspiring to deprive Jews of their Thirteenth Amendment rights is not a protected activity under the First Amendment.
To be sure, the complaint does reference several of PCC’s speech acts. (See, e.g., [Complaint] ¶ 122 (referencing a social media post reading “KETTLE THE COPS CHALLENGE—LAPD F**CK OFF”); id. ¶ 111 (referencing a published list of supplies, including goggles and shields, as well as public statements on PCC letterhead).) However, Plaintiffs are entitled to rely on PCC’s speech acts as evidence tending to prove the elements of their § 1985(3) claims, such as whether PCC acted with an improper intent or was motivated by a discriminatory animus. See Wisconsin v. Mitchell (1993) (“The First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”). Because the Court interprets the complaint as relying on PCC’s alleged speech acts as evidence of PCC’s intent or motive—which is permissible—the Court declines to determine whether any of these speech acts are properly construed as some form of unprotected speech, such as incitement. These interesting and complicated speech issues are better reserved for resolution after development of the record in discovery….
But the court concluded that plaintiffs hadn’t provided adequate “factual allegations describing [defendant] AMP’s involvement in the alleged civil rights conspiracy,” and also held the same as to AMP’s founder and executive director. And as to defendant WESPAC Foundation, an alleged “fiscal sponsor” of NSJP, the court concluded that “the complaint fails to raise an inference that WESPAC maintains sufficient contacts with California such that the Court can exercise specific personal jurisdiction over it”; any lawsuit against WESPAC would therefore have to be litigated elsewhere, such as where it is headquartered.
