Above photo: New York City police officers approach protesters near City Hall on July 1, 2020, in New York City. David Dee Delgado for Getty Images.
Protesters demonstrating against white supremacy and police brutality in the wake of George Floyd’s public lynching have been met with illegal repression by law enforcement. Police have utilized toxic chemical and sonic weapons, dangerous projectiles, intrusive surveillance, physical violence and “kettling” to trap demonstrators after dispersal orders are given.
In a study conducted by the University of Chicago Law School’s International Human Rights Clinic, researchers found not one police department in the 20 largest U.S. cities in compliance with minimum human rights standards governing use of lethal force. They called the use of force by police “state-sanctioned violence.”
Victims of police abuse are filing litigation, and at least one judge has put a halt to some of the most egregious misconduct.
Widespread, Egregious Police Abuse of Protesters
On May 30, Tina Crnko was marching at the Black Lives Matter Los Angeles rally when police shot her in the ribcage and bicep with kinetic impact projectiles (KIPs), also known as “rubber bullets.” KIPs can result in serious organ damage and even death, particularly when shot at the head, neck or torso.
Crnko is a plaintiff in a class-action lawsuit filed in the U.S. District Court, Central District of California by the National Lawyers Guild, Black Lives Matter Los Angeles and the Los Angeles Community Action Network. Crnko was also hit on her forehead above the eye. She bled profusely and experienced temporary hearing loss and extreme pain. Three weeks later, she still suffered nerve damage.
Another plaintiff in the Los Angeles lawsuit, Alicia Barrera-Trujillo, participated in a peaceful protest on June 1. When she tried to leave a little before 5 pm, she and other protesters were “kettled” — surrounded by police to prevent anyone from leaving. Police then fired rubber bullets into the group. Barrera-Trujillo alleges that an officer sprayed an aerosol agent at a woman with a small child who was crying. Both the woman and child exhibited pain from the spray.
Katharine Miller was on the ground kneeling at a June 1 protest when a Philadelphia police officer pepper sprayed her in the face and then pulled down the goggles on the woman next to her and sprayed her too.
“Less-lethal weapons — such as tear gas and pepper spray grenades, and impact projectiles such as sponge rounds, baton rounds, and rubber bullets — should never be shot at close range or aimed at the head, as serious injury or death is possible,” according to Amnesty International.
On May 31, Minneapolis police and Minnesota National Guards shot projectiles at people standing peacefully on their front porches, a report by Amnesty International concluded. Before they started firing, the forces yelled, “Light them up.” They were apparently retaliating against people outside after curfew using their smartphones to videotape the forces.
The report documented 125 incidents of police violence against protesters in 40 states and Washington, D.C., from May 26 to June 5, committed by state and local police departments, National Guard troops and security personnel from federal agencies. The abuses, recorded in 500 videos, include beatings, misuse of pepper spray and tear gas, and inappropriate, even indiscriminate, firing of rubber bullets and sponge grenades or sponge-tipped bullets.
“These human rights violations by US police against peaceful protesters — which were neither proportionate nor necessary to achieve a legitimate law enforcement objective — are particularly egregious as they have occurred at demonstrations denouncing just such police behavior,” the Amnesty report noted.
Even when a minority of protesters committed unlawful acts, “security forces have routinely used disproportionate and indiscriminate force against entire demonstrations — without distinguishing, as legally required, between peaceful protesters and individuals committing unlawful acts,” the report found.
The most striking thing about the documented incidents, aside from the severity of the abuses, is “the national scale of the problem of police violence,” with violations occurring in both large cities and small towns all over the country
Violations of Protesters’ First, Fourth and Fourteenth Amendment Rights
On June 5, U.S. District Court Judge R. Brooke Jackson issued a temporary restraining order enjoining the Denver Police Department from using “chemical weapons or projectiles of any kind against persons engaging in peaceful protests or demonstrations.” Police cannot use KIPs to target the head, back or pelvis, or shoot KIPs indiscriminately into a crowd. Chemical agents or irritants, including tear gas and pepper spray, can only be used after a dispersal order is given with adequate time for compliance and officers must allow safe egress (no kettling).
Judge Jackson found a strong likelihood that Denver police violated the Fourth Amendment by using excessive force and the First Amendment right to free speech. Plaintiffs claimed that police aimed at their heads and groins, which caused broken facial bones and ruptured testicles. The complaint also alleges that police used “pepper spray, pepper balls, rubber bullets, flashbang grenades, and tear gas to punish plaintiffs for demonstrating against police brutality.”
The judge found that “irreparable harm” would result if the plaintiffs were not granted immediate relief because the protests are ongoing, and the use of excessive force would have a chilling effect on the plaintiffs’ exercise of their freedom of speech. “I recognize the importance of shielding and uplifting this ongoing, nationwide movement. As such, I find that irreparable harm would occur were I to deny this relief,” Judge Jackson wrote.
Property damage, according to the judge, “is a small price to pay for constitutional rights — especially the constitutional right of the public to speak against widespread injustice.” He added,
If a store’s windows must be broken to prevent a protestor’s facial bones from being broken or eye being permanently damaged, that is more than a fair trade. If a building must be graffiti-ed to prevent the suppression of free speech, that is a fair trade. The threat to physical safety and free speech outweighs the threat to property.
The first amended complaint in the Black Lives Matter Los Angeles lawsuit says that from May 29 to June 3, the Los Angeles Police Department (LAPD) arrested approximately 3,000 people. The police chief admitted that well over 92 percent of the individuals arrested were engaged in peaceful protest.
Plaintiffs allege that police misconduct resulted in the violation of their First, Fourth and Fourteenth Amendment rights. They charge that the LAPD used “indiscriminate and unreasonable force against thousands of protesters” and used unreasonable and excessive force by hitting “at least close to a thousand protesters with batons and/or ‘rubbers bullets.’” Plaintiffs attest to being restrained with tight handcuffs, denied bathroom access and access to food or water, and provided insufficient ventilation during transport, making them vulnerable to COVID-19.
On June 1, President Trump and Attorney General William Barr ordered the use of chemical weapons against peaceful protesters in Lafayette Square in Washington, D.C., to facilitate Trump’s photo-op holding a Bible in front of St. John’s Episcopal Church. Police used tear gas, flash-bang shells, smoke canisters, pepper balls and/or rubber bullets to disperse the crowd.
The ACLU of District of Columbia, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and Lawyers’ Committee for Civil Rights Under Law sued Trump and Barr on behalf of Black Lives Matter DC and other protesters. They allege violation of the protesters’ First and Fourth Amendment rights, including the rights of peaceful assembly, petition for redress of grievances, freedom of speech, freedom of the press and freedom from unreasonable seizures.
Qualified Immunity Excuses Police Abuse
When the plaintiffs litigate these lawsuits, they will be met with the qualified immunity defense. It shields officers from liability unless: 1.) They violated the Fourth Amendment by using excessive force; and 2.) they should have known they were violating “clearly established” law. Even in the most egregious cases, it is often difficult to prove the second prong if there is no prior case finding similar police conduct illegal.
On June 15, the Supreme Court declined to review eight cases that would have given them the opportunity to reconsider the qualified immunity defense.
Emma Andersson and the ACLU are handling one of those cases. “Requiring government actors to be careful before treading on someone’s constitutional rights is the only reasonable approach if you truly value those rights and want to ensure that they thrive rather than wither over time,” Andersson, a senior staff attorney at the ACLU, told CBS News. “As qualified immunity has become an increasingly high bar, it has become tougher for victims of government misconduct to vindicate their rights in court.”
Indeed, as the Supreme Court noted in 1986, “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Since the Black Lives Matter uprisings began, qualified immunity has become a hot-button issue. Colorado made history on June 19 by banning the qualified immunity defense. Congress is considering proposals that could abolish or water down the defense.
Representatives Justin Amash (D-Michigan) and Ayanna Pressley (D-Massachusetts) introduced the Ending Qualified Immunity Act in the House of Representatives on June 4. It provides there will be no qualified immunity defense if an officer claimed he or she was acting in good faith, or reasonably believed that his or her conduct was lawful at the time it was committed. It also specifies there is no defense even if the law was not clearly established at the time of the officer’s conduct.
Senators Ed Markey (D-Massachusetts), Bernie Sanders (I-Vermont) and Elizabeth Warren (D-Massachusetts) introduced the Senate’s companion bill to the House’s Ending Qualified Immunity Act on July 1.
“If we want to change the culture of police violence against Black and Brown Americans,” Markey said, “then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities. That means once-and-for-all abolishing the dangerous judicial doctrine known as qualified immunity.”
“At a time when unprecedented numbers of people are demanding an end to police murder, brutality, and impunity, we have got to finally abolish ‘qualified immunity,’” Sanders declared. “This is not a radical idea: Police officers must be held fully accountable for abuses they commit—no one is above the law. If we are serious about real police reform, the Senate has got to pass our Ending Qualified Immunity Act.”
“For too long,” Warren stated, “qualified immunity has shielded police officers who have engaged in unconstitutional and appalling conduct from being held accountable in court—it’s past time to end this doctrine. I’m proud to join my colleagues in cosponsoring this bill and putting forward reforms to help end the systemic racism that plagues policing in America.”
On June 24, Republican Sen. Mike Braun of Indiana introduced the Reforming Qualified Immunity Act, which would allow the qualified immunity defense only when the officer’s conduct had previously been “specifically authorized or required by” a federal or state statute or regulation, or if a court had found it to be consistent “with the Constitution or Federal laws.”
It is unlikely that Republicans will agree to reform, no less abolish, the qualified immunity defense. It falls to the people to demand its abolition.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary-general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.