WASHINGTON — Donald Trump and a cadre of current and former federal officials can’t be sued over the violent clearing of peaceful protesters from a park in Washington, DC, last summer shortly before the then-president passed through for a photo op, a federal judge ruled Monday.
Black Lives Matter DC and individual protesters who were forcibly removed from Lafayette Square on June 1, 2020, had sued Trump, former attorney general Bill Barr, and top officials from other federal agencies involved in clearing the park, along with local police from Washington and Arlington, Virginia, who were deployed to the square. In a 51-page decision, US District Judge Dabney Friedrich ruled the claims against local officers could go forward but dismissed all but one against the federal defendants.
Friedrich wrote that the plaintiffs had failed to stitch together enough evidence at this stage of the case to show there was a conspiracy among Trump, Barr, and other federal officials to violate the rights of Black people and their supporters. The challengers separately argued that Barr and other senior officials should be individually liable for their role in deploying officers to the square, similar to how federal law enforcement officers can be sued for violating people’s civil rights, but Friedrich ruled that type of claim couldn’t apply to this “new context.”
The ruling came on the heels of a report from the Department of Interior's inspector general finding that US Park Police had planned to clear the square in order to install new fencing before officials knew about Trump’s plan to walk through for the photo op. The report didn’t address Barr’s state of mind — he’d visited the site before it was cleared and appeared to register discontent, according to the report — or the intent of other agencies who sent officers, including the US Secret Service. Barr has previously denied that he ordered the park cleared for Trump.
Late last week, the Justice Department and lawyers for the plaintiffs notified the court that they were engaged in “preliminary settlement discussions.” It wasn’t immediately clear what would happen with those talks now that most of the claims against the federal government defendants had been dismissed; the challengers could appeal Friedrich’s ruling. A spokesperson for the Justice Department declined to comment.
Scott Michelman, legal director of the ACLU of the District of Columbia, which was part of the legal team that represented Black Lives Matter DC and other individual protesters, said in a statement that they would "evaluate all our legal options to ensure that protestors cannot be wantonly attacked at the whim of a federal official."
“Today’s ruling essentially gives the federal government a green light to use violence, including lethal force against demonstrators, as long as federal officials claim to be protecting national security," Michelman said. “Under today’s decision, Lafayette Square is now a Constitution-free zone when it comes to the actions of federal officials. Not only is this decision a stunning rejection of our constitutional values and protestors’ First Amendment rights, but it effectively places federal officials above the law."
Lafayette Square is across from the White House. Protesters gathered there last summer as part of nationwide demonstrations opposing police brutality and racism, and specifically in response to the deaths of George Floyd, Breonna Taylor, and other Black people killed by police. Early in the evening of June 1, federal and local officers went into the square to remove peaceful demonstrators, using physical force as well as tear gas and other chemical agents.
Roughly 10 minutes after police had cleared the area, Trump walked across the now-empty space to stand in front of a nearby church and pose for photographs holding up a Bible for several minutes; the church had been damaged by a fire the night before when there were protests that had included looting and vandalism.
Black Lives Matter DC filed one of four civil lawsuits seeking to hold federal and local officials liable for violating the rights of protesters that day; the cases were consolidated before Friedrich as the various officials named as defendants moved to dismiss the claims.
Friedrich, who was one of Trump’s four nominees to the federal district court in Washington, found that the claims against the former president, Barr, and the other administration officials failed on several levels. For the conspiracy allegation, the judge found there wasn’t enough evidence of an “agreement or meeting of the minds” to violate protesters’ rights.
“Here, the management of possible violence, enforcement of the impending curfew, and policing of demonstrators in Lafayette Square in advance of the President’s travel across the Square generate ‘obvious alternative explanation[s]’ … for the defendants’ communications and activities other than having formed an agreement to violate the plaintiffs’ civil rights,” Friedrich wrote.
Barr and senior officials from other agencies that sent officers into the square, including the US Park Police and US Secret Service, also couldn’t be personally sued for their role in making decisions that day, the judge held. Normally, federal officials are immune from being sued over official actions, but there’s an exception to that in certain cases involving alleged constitutional violations, known as a Bivens action; that exception can apply in cases involving individual federal officers accused of violating people’s civil rights, for instance.
Friedrich found that the plaintiffs were asking the court to extend the types of cases that Bivens covered to a “new context”; how senior officials responded to a large-scale protest wasn’t the same as how a lone officer handled going into a private apartment during a drug investigation, she wrote. In deciding whether it was appropriate to apply Bivens to a new type of case — which would let people sue individual officials for damages — the Supreme Court had held that judges had to consider whether there were “special factors” that made it inappropriate.
Friedrich found that there were a number of “special factors” at play in the clearing of Lafayette Square, including the need to protect national security and the safety of the president. She also noted that Congress had considered the relationship between protest rights and presidential security in the past but hadn’t passed legislation that created a specific way for people to sue federal officers for violating their First Amendment free speech rights under these circumstances.
Michelman in his statement urged Congress to reevaluate when federal officials can face legal action and "plug this dangerous gap in our system of constitutional remedies by legislating that federal officers, no less than state and local ones, can be sued when they violate individuals’ rights."
The protesters who sued had also asked for an injunction blocking federal officials from authorizing physical force to remove people exercising their free speech rights without provocation or warning, but Friedrich found the plaintiffs didn’t have standing to press that claim because they hadn’t shown that they faced an “immediate threat” of a similar incident happening again. The argument that last summer’s incident had a “chilling effect” on future protests wasn’t enough, the judge wrote.
Friedrich did allow one claim to go forward against federal officials — she found that there was a good chance that access to the square would be restricted in the future, so the plaintiffs could continue to litigate over whether that was lawful.
The judge did find, however, that the challengers could go ahead with claims accusing individual police officers from DC and Arlington of violating their First Amendment rights. The local officers argued they’d acted in the name of presidential security, but the judge found it was too early in the case to decide if that were true; if it were, she noted, there was Supreme Court precedent that would weigh in favor of granting the local officers immunity as well.
“In light of this precedent, any reasonable officer would have been aware that it is a violation of foundational First Amendment rights to forcibly end a peaceful protest in a traditional public forum without any legitimate justification for doing so,” Friedrich wrote.
This story was updated to include a comment from Scott Michelman of the ACLU of DC.