WASHINGTON — It took minutes for federal law enforcement officers to clear protesters near the White House on Monday afternoon by deploying smoke canisters and tear gas. It took hours for police in Washington to arrest nearly 300 people, mostly for curfew violations, that night.
It could take years for any lawsuits filed by these protesters — or the more than 11,000 people arrested nationwide during anti-racist demonstrations over the past week — over excessive force, unlawful arrests, and police misconduct to play out in court. If past cases are a guide, it could also cost local and federal authorities millions of dollars if they lose or settle.
People who sued over the mass arrests in Washington during demonstrations against President Donald Trump’s inauguration in January 2017 are still in court three years later waiting for a resolution. Other mass arrest cases in DC and elsewhere have ended in multimillion-dollar settlements.
The ACLU of Minnesota announced Wednesday that it had filed a lawsuit against Minneapolis police and state troopers over the treatment of journalists during recent demonstrations. The ACLU of the District of Columbia, which is involved in the litigation over the inauguration arrests, put out a public call for information about Monday’s events. Legal director Scott Michelman told BuzzFeed News that it was too soon to say if the DC ACLU will sue, but they were investigating with an eye to future legal action.
“Nobody wants mass arrests, wanton use of pepper spray, and subsequent lawsuits lasting years and leading to the government compensating victims,” Michelman said. “But when the leadership of the District law enforcement doesn’t understand that, they're going to keep making the same mistakes again, and it’s disappointing that we keep having to sue them because they keep making the same mistakes.”
DC and federal authorities are well aware of the legal and financial consequences of mass arrests. It took 14 years for DC and the US Park Police to settle lawsuits that accused their respective officers of using excessive force and violating people’s constitutional rights during demonstrations against the IMF and World Bank in Pershing Park in 2002; hundreds of people, including a mix of protesters and bystanders, were arrested. By 2016, when the last case settled, DC and federal authorities had reached agreements totaling $13.25 million.
In 2009, the DC government agreed to pay $13.7 million to settle a class action filed on behalf of hundreds of people arrested during a demonstration, also against the World Bank and IMF, nearly a decade earlier.
DC isn’t the only city to face expensive, prolonged legal fights after mass arrests. In 2014, officials in New York agreed to pay $18 million to settle a civil rights case brought on behalf of hundreds of protesters who were arrested at a demonstration a decade earlier during the 2004 Republican National Convention. In 2015, a federal judge in Oakland approved a $1.36 million settlement for several hundred protesters arrested during a 2012 march that was part of the Occupy Oakland movement.
“The reason why these cases take so long is because the government tends to be reluctant to admit its error and tends to be reluctant to agree to proposals to correct its ways,” Daniel Schwartz, one of the lead attorneys for plaintiffs in the Pershing Park litigation, told BuzzFeed News. “And when it does agree to proposals to correct its ways ... they’re not always followed.”
These cases can also get tied up in legal fights over whether individual officers are covered by a legal doctrine known as qualified immunity, which protects police from liability if their actions weren’t “clearly established” as unlawful or unconstitutional at the time. The US Supreme Court is deciding whether to revisit the doctrine, which the ACLU and an ideologically diverse group of advocates have argued should be abolished.
As part of the Pershing Park settlements, the DC government and US Park Police agreed to adopt new policies related to how law enforcement officers manage demonstrations. But Schwartz said those agreements didn’t include strong enforcement or oversight provisions, which made it more likely that DC would end up back in court.
“Just passing a law or enacting a set of police guidelines, which have been in existence for quite some time and are routinely violated, does not solve the problem, because you just have to go back and sue people again,” he said.
There are three lawsuits pending against the DC government and individual Metropolitan Police Department (MPD) officers over mass arrests downtown on Trump’s Inauguration Day. These cases accuse police of unlawfully arresting peaceful protesters, legal observers, and journalists; using excessive force, including pepper spray and tear gas; and violating people’s rights after they were arrested.
In September 2019, the federal judge handling these cases dismissed some of the claims, but allowed others to go forward. The case is on hold while the DC government tries to negotiate a potential settlement with the plaintiffs through mediation.
Michelman said the ACLU was investigating allegations that DC police and federal law enforcement officers used some of these same tactics this week, such as pepper-spraying protesters who weren’t resisting and surrounding people so they couldn’t disperse, which is known as kettling. He called the actions by the US Park Police and other federal officers involved in clearing Lafayette Park so that Trump could walk to a nearby church and pose for photographs “patently unconstitutional and probably criminal.”
The US Park Police released a statement defending its officers and other “assisting law enforcement partners,” claiming protesters had been throwing objects and that officers issued warnings before using force. BuzzFeed News and other media outlets have reported that protesters were engaging in peaceful demonstrations when officers charged.
Michelman said most of the people who were arrested on Monday night and early Tuesday morning were transported to a processing facility across the city only to be released with a citation, which may have put them at higher risk of contracting COVID-19, the disease caused by the novel coronavirus.
“The fact that police used kettling tactics of the kind we saw on Inauguration Day 2017 to prevent people who otherwise would have dispersed and gone home, it appears, from leaving, and instead kept them penned in with other people to not only great discomfort but great risk of COVID infection in the current climate, was incredibly irresponsible, and at worst it’s unconstitutional and unlawful as well,” Michelman said.
Metropolitan Police Department Chief Peter Newsham — a veteran DC police official who was in charge of the department during the January 2017 arrests and played a role in directing the 2002 arrests at Pershing Park — has said the department’s Internal Affairs Bureau would do a “thorough review” of this week’s excessive force accusations.