The lawsuit faces an uphill battle in a judiciary controlled by Republicans.
The District of Columbia chapter of the Black Lives Matter movement, along with four individual protesters, filed a federal lawsuit Thursday against President Donald Trump, Attorney General Bill Barr, and an array of police and federal officials who were allegedly involved in a violent police attack on peaceful protesters on June 1 in Washington, DC. The suit is Black Lives Matter DC v. Trump.
As president, Trump has immunity from lawsuits seeking money damages for his official actions. Yet Barr, who reportedly gave the order to remove the demonstrators from Lafayette Square, a public park adjacent to the White House, could potentially be held personally liable to both the Black Lives Matter chapter and the individual protesters. (On Friday, Barr claimed that he did not give the order, but his own Justice Department admitted that he gave the order earlier this week.)
Although lawsuits challenging police misconduct are common, it is exceedingly rare for a sitting US attorney general to assume direct command over law enforcement officers in the field. So this is an unusual case wherein a Cabinet official could be held liable for the actions of officers he personally oversaw.
The suit also names as defendants Secretary of Defense Mark Esper and Secret Service Director James Murray, in addition to 120 unidentified law enforcement officers. Its plaintiffs seek both money damages and an injunction preventing federal law enforcement from continuing to use the tactics it deployed in Lafayette Square.
The suit raises strong allegations that officers acting under Barr’s command violated the constitutional rights of protesters. But merely showing that the officers violated the Constitution will not be enough for the plaintiffs in Black Lives Matter to prevail, in large part because law enforcement enjoys broad — if not entirely insurmountable — immunity from civil suits. Indeed, the Black Lives Matter plaintiffs will need to overcome a dizzying array of legal obstacles that stand in the way of victims of police violence.
Moreover, those plaintiffs must litigate their case before an increasingly conservative judiciary that appears determined to erect more barriers in front of plaintiffs challenging abuse by federal law enforcement.
Black Lives Matter could end in defeat for the protesters, in other words, even if Barr and the officers violated the Constitution.
The plaintiffs have strong arguments that their constitutional rights were violated
There are strong arguments that officers acting under Barr’s command violated the First Amendment rights of protesters. Although the First Amendment offers broad protection to political demonstrators, the government may still impose reasonable “time, place and manner” restrictions on such demonstrators. The right to protest doesn’t mean that someone can break into Barr’s home and yell at him while he eats dinner with his family.
But First Amendment rights are strongest in places where the public traditionally gathers openly and freely. As the Black Lives Matter complaint points out, “Lafayette Square is a traditional public forum where First Amendment rights are at their apex.” That means that the government bears an unusually high burden if it wants to restrict free speech in this location.
Moreover, one of the gravest sins under the First Amendment is “viewpoint discrimination.” That is, the government is almost never allowed to treat different speakers differently because it agrees with the message of one group and disagrees with the message of another one.
But President Trump has signaled that he intends to do just that. The day before Barr allegedly ordered police to clear protesters out of Lafayette Square, Trump tweeted about protesters demonstrating against police violence that “these people are ANARCHISTS. Call in our National Guard NOW.”
And yet, one day earlier, Trump seemed to actively encourage his own supporters to rally near the same location where the Lafayette Square demonstration took place.
The professionally managed so-called “protesters” at the White House had little to do with the memory of George Floyd. They were just there to cause trouble. The @SecretService handled them easily. Tonight, I understand, is MAGA NIGHT AT THE WHITE HOUSE???
— Donald J. Trump (@realDonaldTrump) May 30, 2020
The government may not actively encourage protests by people with a conservative viewpoint, while using violent tactics to discourage peaceful protesters with a different viewpoint.
Additionally, the Fourth Amendment protects “against unreasonable searches and seizures,” and a violent attack by law enforcement officers typically amounts to a “seizure.” The government, in other words, must show that it was reasonable to remove peaceful protesters using rather extreme law enforcement tactics. And it must do so in the face of credible allegations that the real reason the protesters were removed is so that Trump could have a photo op at a nearby church.
Existing law frequently protects law enforcement officers who commit illegal acts
Even if Barr and the officers under his command did violate the constitutional rights of protesters, however, the Black Lives Matter plaintiffs must clear an array of legal hurdles in order to prevail.
For one thing, both Barr and most of the officers present in Lafayette Square are federal employees. The plaintiffs in Black Lives Matter seek money damages against these officers, in addition to an injunction “ordering Defendants to cease engaging in the unlawful acts” alleged in their lawsuit.
Most of the claims in Black Lives Matter arise directly under the Constitution, and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971) permits lawsuits seeking money damages from federal law enforcement officers who violate the Constitution.
But the Court’s Republican majority is hostile to Bivens. Indeed, it recently signaled that it may overrule this decision. In its 5-4 decision in Hernández v. Mesa (2020), the majority warned that Bivens suits are “a ‘disfavored’ judicial activity,” and the Court has even suggested that if Bivens were “decided today,” it is “doubtful we would have reached the same result.”
If the Black Lives Matter plaintiffs manage to clear this hurdle, they still must overcome a doctrine known as qualified immunity. As the Supreme Court held in Harlow v. Fitzgerald (1982), qualified immunity provides that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
But some courts have defined the term “clearly established law” exceedingly narrowly. One recent federal appeals court decision, for example, held that police who trashed a woman’s home and saturated it with tear gas, after she gave them permission to enter in order to search for her ex-boyfriend, were entitled to qualified immunity.
The court’s opinion suggests that, in order to overcome qualified immunity, the woman would have had to produce a binding precedent holding that when a homeowner gives police consent to enter their home, that consent does not include permission to smash windows or to fire chemical weapons into the house.
It’s possible that courts hearing the Black Lives Matter case will impose a similarly high burden on the plaintiffs in that case.
The Black Lives Matter plaintiffs also face a heavy burden in their quest for an injunction. In City of Los Angeles v. Lyons (1983), the Supreme Court held that a victim of a police chokehold could not obtain an injunction preventing the Los Angeles Police Department from using similar chokeholds in the future unless he could show that “he was likely to suffer future injury from the use of the chokeholds by police officers.” That is, he had to show that he was likely to be choked a second time by a Los Angeles cop.
Similarly, the Black Lives Matter plaintiffs could have to show that they are likely to be gassed or hit with rubber bullets a second time by federal law enforcement officers.
Given the fact that the protests remain ongoing, and that police violence appears to be widespread in response to these nationwide protests, Black Lives Matter may be the rare case where a plaintiff can show that they are likely to experience the same form of police violence twice. But Lyons remains a high bar for any plaintiff seeking to enjoin police misconduct.
The bottom line is that law enforcement frequently engages in violence and gets away with it, not because the violence is lawful, but because the Supreme Court gives extraordinary protection to rogue police.
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Author: Ian Millhiser