Judge Set to Rule on Immunity For Police at Lafayette Square

June 2, 2021 by Tom Ramstack

WASHINGTON — A Washington, D.C. federal judge is expected to rule within days on whether lawsuits can go forward accusing police of violating protesters’ civil rights in the way they cleared Lafayette Square in front of the White House last year after the killing of George Floyd.

The lawsuits are filed against former President Donald Trump, former Attorney General William Barr and local and federal police agencies. The Justice Department is seeking dismissal.

“We respectfully submit that the conduct here was so flagrantly unlawful and so obviously unconstitutional that it requires a remedy,” an attorney for the plaintiffs said at a hearing Friday. “And we are here today, your honor, to do everything we can to see that nothing like this ever happens again in our country.”

Police used tear gas, rubber bullets and flashbang grenades against protesters on June 1, 2020 to clear a path for Trump, who was on his way to a nearby church for a photo opportunity.

Trump was accompanied by some of his staff members, such as Barr and Mark Milley, chairman of the Joint Chiefs of Staff. Since then, Milley has apologized for participating in the photo op.

Barr and the police argue they cannot be sued because they are protected by a qualified immunity from lawsuits granted by federal law to government officials.

The only exception — and the issue before the U.S. District Court — allows lawsuits when police violate “clearly established” law.

At times, U.S. District Judge Dabney L. Friedrich seemed skeptical of the police action when she pointed out the protesters were peaceful and added, “You just can’t wail on someone with batons if they’re running away from you.”

Justice Department attorney John Martin argued, “Presidential security is paramount. No officer has ever been denied immunity for clearing an area before an appearance by the president.”

Other times, the judge seemed to agree that what she called a “legitimate security risk” justified police in forcibly removing the protesters.

“It seems quite obvious you have to clear the square that he’s going to walk through before he reaches the church,” said Friedrich, who was a Trump appointee. “And why is that not reasonable for the defendants to do?”

The defense attorneys also said the case is moot because Trump has been replaced by a new president who never would authorize such force against protesters.

In recognition of the argument presented by the protesters’ attorneys, Friedrich added, “I understand your separate point about the level of violence and use of force.” 

The protesters were represented by the ACLU of the District of Columbia, Black Lives Matter D.C. and the law firm of Gibson Dunn & Crutcher LLP.

They are claiming violations of their First Amendment rights to free speech and assembly. In addition to seeking compensation, they want an injunction that orders the government to halt similar uses of force against peaceful protesters.

Scott Michelman, their lead attorney, said protests in Lafayette Square across from the White House should have “a heightened First Amendment applicability.”

He also said the Justice Department’s assertions of a security risk for the president were exaggerated as part of a cover-up of the unjustified use of force by police.

Part of the protesters’ evidence consisted of Trump’s tweets in which he called Black Lives Matter protesters “thugs.” He also called them enemies of the government.

The tweets were intended to show Trump and the police were acting with animosity toward the protesters rather than a true security concern. 

Michelman cited precedents in previous District of Columbia court decisions in asking the judge to deny the Justice Department’s request for a dismissal.

“D.C. Circuit [precedent] says very clearly the court has to probe and think carefully and skeptically about whether this was a lawful invocation of security,” Michelman said.

The judge said she would rule soon but did not set a date. The lead case in the four consolidated lawsuits is Black Lives Matter D.C. et al. v. Trump et al., case number 1:20-cv-01469, in the U.S. District Court for the District of Columbia.

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