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 AbuseWhen 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 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.
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