Response to Question - Why the Class Action Suit?
I would like to know why you think dispersing an unruly crowd with non-lethal means is a civil rights offense?
First let me thank you for asking the question that many may have been afraid to ask. Increasingly we are finding an intolerance to opinions and views from all political sides, where people are unwilling to permit people to engage in real debate, but resort to ad hominem attacks (attacking the speaker), name calling, and violence.
Now to address your question, I will provide a cursory legal framework and then apply the facts to that framework.
Early in our nation’s history the concept of freedom in religion and thought was the cornerstone of something new in the world.
On March 4, 1681, King Charles II of England granted William Penn forty-five thousand acres to pay a 6,000 pound debt owed to Penn’s father, an admiral in the British Navy. Penn, a Quaker, believed that “no people can be truly happy if abridged of the freedom of their consciences” and opened Pennsylvania to Quakers, Protestants, Catholics and Jews all of whom were suffering from religious persecution. They also held to the notion that all men were created equal. These concepts have taken a while to develop from those early roots. Still under British rule, in 1735, Andrew Hamilton persuaded a jury to acquit John Peter Zenger of criminal charges of seditious libel critical of New York’s royal Governor William Cosby on the grounds that truth is a defense against libel. On July 4, 1776, the Second Continental Congress unanimously adopted the Declaration of Independence, with its eloquent assertion “all Men are created equal.” In the summer of 1787, Patrick Henry, the first governor of Virginia, opposed the ratification of the Constitution without the Bill of Rights to safeguard the basic civil rights of the individual, that Virginian James Madison was principally responsible for drafting.The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.
The First Amendment text reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Over the last 200 years, the principles of these fundamental rights continue to be ironed out. However, by 2020, it was well established that the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state explained the Supreme Court in Houston v. Hill, 482 U.S. 451, 461-63, 107 S. Ct. 2502, 2509-10 (1987). Another Virginian explained, “a properly trained officer may reasonably be expected to “exercise a higher degree of restraint” than the average citizen, and thus be less likely to respond belligerently to “fighting words.” Lewis v. New Orleans, 415 U.S. 130, 135, 94 S. Ct. 970, 973 (1974).
The Code of Virginia is also relevant to the inquiry.
§ 18.2-406 states in pertinent part “Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly.” § 18.2-411 states in pertinent part “When any number of persons, whether armed or not, are unlawfully or riotously assembled, …the police … shall go among the persons assembled or as near to them as safety will permit and command them in the name of the Commonwealth immediately to disperse. If upon such command the persons unlawfully assembled do not disperse immediately, such …officer …may use such force as is reasonably necessary to disperse them and to arrest those who fail or refuse to disperse. … Every endeavor shall be used, both by such sheriff or other officers and by the officer commanding any other force, which can be made consistently with the preservation of life, to induce or force those unlawfully assembled to disperse before an attack is made upon those unlawfully assembled by which their lives may be endangered.”
Now turning our attention to the events of June 1, 2020. On that day, a group of people assembled to exercise their 1st Amendment right to protest police brutality exemplified most recently by the unlawful killing of George Floyd whose life was snuffed from him by the police officer while he lay helpless in handcuffs (a violation of the 4th Amendment to the Constitution) and to protest racism. The group had been escorted to the Lee Monument by police to exercise their 1st Amendment rights. The group was not engaged in any unlawful acts. They were not in violation of the 8:00 p.m. curfew.
A second contingency of Richmond police officers appeared at the Lee Circle approximately 7:31 p.m. in a convoy of vehicles and establishing a military styled skirmish line designed to maximize a “kill zone” along the northwestern side of the monument. This skirmish line was heavily armed and armored, wearing body armor and masks, and most had AR-style assault weapons and their side-arms. The firearms were then pointed at the people assembled. Upon the arrival of an armored vehicle and additional police, a Richmond police officer threw tear-gas canister into the assembly, quickly followed by other officers while many protesters were kneeling with their hands in the air chanting “hands up, don’t shoot” The people assembled had not engaged in violence or threats of violence to person or property. There was no command to disburse, let alone a lawful command to do so. It is unacceptable that men and women, gathering peacefully to protest police misconduct, were assaulted in this way by police.
The police acted unlawfully in violation of the 1st, 4th and 14th Amendments to the United States Constitution.
Your question assumes a fact that is false, referring to this crowd on June 1, 2020 as “unruly.” That term may aptly apply to other crowds at other times and places, but it is not a fair description of the June 1, 2020 crowd. Second, your question addresses “non-lethal” means. Fortunately, the 4th Amendment protection does not draw the line for unlawful police conduct with such a bright line as “non-lethal” and “lethal.” The line is “reasonable force.” In this case, any force would be unreasonable. Our law protects you and others against unlawful, harmful or offensive touching of any kind. The 4th Amendment protects you from the unreasonable use of force or excessive force by police officers when they are authorized to use force–in this case they were not authorized by law to use any force.
Sometimes it helps to view this from a different angle. Imagine that this group had assembled to protest the recent and ongoing attempts by the government to erode your rights under the 2nd Amendment. You and I had assembled at the Capital to protest, had repeated throughout the day to all within the protest the importance of peacefully protesting, had been escorted by the police to a rallying point, only to be ambushed by a 2nd contingency of police who assaulted you and me with canisters of tear gas, chased us down with pepper spray and prevented us from exercising our rights to speak against the government for the recent attempts to erode the 2nd Amendment protections. Would your argument be, well as long as they didn’t use lethal force, the checks and balances of the judiciary should not be used against the executive branch? This lawsuit is a critical check to prevent a police state, where police decide what you can and cannot do, decide whether you violate those rules and execute judgment upon you if they perceive you to have violated those rules.
The City and the Police initially created a false narrative claiming that the crowd had isolated a few officers putting them in danger – they admitted that was false against the overwhelming evidence of videos and photographs and have further admitted that the action by the police officers was unlawful and unjustified.
However, the City and Police have battened down the hatches and there is currently a blue-wall of silence. The officers have not been held accountable and no relief has been provided to those whose 1st, 4th and 14th Amendment rights were taken from them and who were harmed by the gas. This suit seeks to hold the police accountable for their actions. Do you want a society where citizens are not able to hold government officials and police officers accountable for their unlawful actions?