Mediaboss Marketing

Exclusive

Donald Trump trampled the constitutional rights of protesters when he ordered law enforcement to unleash tear gas, pepper spray and rubber bullets on them ... this according to a new lawsuit.

The President is being sued by 3 protesters who claim they were demonstrating outside the White House at Lafayette Park on June 1 -- the day POTUS took his now-infamous church photo-op.

According to the lawsuit, obtained by TMZ, the protesters claim they were part of a peaceful demonstration and the dispersal warnings to the crowd were not clear or intelligible. They say all of a sudden officers in riot gear charged them with their batons, firing rubber bullets and using pepper spray.

In the docs, the protesters claim the crowd-clearing tactics violated their constitutional rights, including freedom of assembly under the First Amendment and their right to be free from excessive force under the Fourth Amendment.

In fact, they invoke the words of President Franklin D. Roosevelt saying June 1 is "a day that will live in infamy."

The protesters also claim the Trump Administration later lied about the amount and kinds of force used to disperse the crowd.

According to the suit, the protesters want an injunction allowing them to exercise their right to protest without fear of retribution and to restore access to Lafayette Park, which has since been closed off by fences.

The protesters also want a finding that the use of tear gas, flash-bang grenades, smoke bombs and rubber bullets was unconstitutional.

Oh, and in addition to President Trump, they are also suing Attorney General Bill Barr, Secretary of Defense Mark Esper and D.C. National Guard Commander General William Walker ... and they want damages for injuries.

See the original post:
President Trump Sued by Protesters Who Claim They Were Tear Gassed - TMZ

When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizensmuch less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.

Under what circumstances may the government use lethal and non- or lesser-lethal force in the face of unlawful protests, riots, and looting? The answer is context dependent. But the use of such forcewhether exercised by state or federal armed forcesis always constrained by a fundamental constitutional principle of reasonableness, so long as no armed conflict exists. Although I agree with everything Mark Nevitt wrote in his Just Security article on the powers and limitations of the Presidents response to the recent protests, it is important to ground the discussion in constitutional norms rather than just Department of Defense understandings or policy which would apply to use of the US military as well as federal and state law enforcement authorities.

It is critical to understand the scope of the state and federal governments authority to use physical force against individuals. Although federal and state authorities generally have authority to control domestic violence and discretion to determine the means necessary to do so, they must exercise that authority and discretion reasonably under the U.S. Constitution. In fact, the use of force continuum to which law enforcement agencies generally adhere as policy should be understood to be a constitutional requirement.

The Use of Force and the Constitution

All uses of lethal and non- or lesser-lethal physical force by government agents must be reasonable under the circumstances. This is not only wise policy, it is a constitutional demand. Reasonableness is required either by the Fourth Amendment or by the general constitutional demand that all government action be reasonable and non-arbitrary. In this context, the latter reasonableness requirementthat all government action be reasonable and non-arbitrarycan also be based in the Due Process Clauses of the Fifth and Fourteenth Amendments which protect against government infringements of personal liberty, including the infliction of physical injury.

Although not all measures to control crowds, riots, or looting necessarily implicate the Fourth Amendment, some certainly would. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures. Searches and seizures always entail the use of some measure of actual or constructive forcebroadly construedagainst persons and property.

The Fourth Amendment requires that all searches and seizures be reasonable. Courts interpret this requirement contextually. Reasonableness has substantive and procedural components. Substantively, there must be a legitimate constitutional basis for a search or seizure. Procedurally, both must always be conducted or executed reasonably. Measures adopted to control riots, looting, and crowds typically restrict or deprive individual movement, and therefore implicate arrests and other seizures.

Arrests involve substantial restraints on ones freedom of movement, typically taking someone from a public or private place where they have a right to be and placing them in government custody. Substantively, arrests require probable cause that the individual committed a crime. Procedurally, police may make arrests without a warrant for any crime committed in the officers presence or for a felony committed outside of an officers presence. Additionally, police may use only reasonable force to effect an arrest.

Seizures occur when someones movement is temporarily restricted in some meaningful way by an intentional show or use of government authority, including force short of an arrest. Substantively, in a law enforcement context, seizures are constitutional if they are based upon a reasonable suspicion that criminal activity is afoot or if there is some other specific, legitimate law enforcement purpose. Criminal behavior could include looting, assault, trespassing or a curfew violation. Other legitimate purposes for a temporary stop might include checking identification for a limited access area (such as by verifying press credentials, employment or residency) or seeking information related to a recent crime in the area. Procedurally, seizures are constitutional if the measures taken to effect a seizure, and during it, are reasonable under the circumstances. For example, stopping a suspicious person and conducting a non-intrusive frisk for weapons is appropriate if there is a reasonable suspicion both that the person may be involved in criminal activity and that they are armed and potentially dangerous.

Riot- and crowd-control measures include arrests and seizures, but not all measures would necessarily involve one or the other. Often, in these situations, an individuals movement or behavior is restricted or limited in some way, but they are free to leavein Fourth Amendment termsto go somewhere or do something else. A seizure occurs only when an individual is temporarily and intentionally immobilized, whether voluntarily or involuntarily, by a government agent. Efforts to effect a seizure or arrest must always be reasonable under a totality of the circumstances.

Notwithstanding the Fourth Amendment, there is also a strong argument that all government action must be reasonable in order to be constitutional. Generally speaking, government action must be reasonably calculated to achieve (or rationally related to) a legitimate government purpose. The government action must also be a reasonable and permissible means of achieving that legitimate purpose. As Justice Marshall wrote in McCulloch v. Maryland:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

This is a general principle of constitutional law. Government action must be appropriate and plainly adapted to its alleged purpose. Not only must it not be prohibited by the Constitutions text, it must be consistent with the Constitution. Every use of physical force not amounting to a search or seizure must also, therefore, be reasonably directed to a legitimate end and reasonably necessary under a totality of the circumstances.

The Insurrection Act Does Not Alter These Constitutional Requirements.

The Insurrection Act allows a president broad discretion to use as much of the federal armed forces and state national guard units as he or she deems necessary to quell insurrections against the authority of a state or to remove substantial interferences with the enforcement of federal laws. A president could invoke either of these justifications in response to widespread riots and looting.

These statutes allow a president to take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy. Despite this broad language, the president may not authorize the armed forces to do anything he would like. Although the exigencies of a situation may require some deference to on-the-spot judgement calls, Congress cannot empower a president to violate specifically applicable aspects of the Constitution. The requirement that the use of all physical force be reasonable under the circumstances is one such specifically applicable constitutional requirement.

Recent Examples

Unreasonable use of lethal force that violates the Fourth Amendment.

The President has infamously tweeted that when the looting starts, the shooting starts. In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment seizure that must be reasonable. In this context, lethal force is reasonable only if the suspect presents a threat of serious harm to the officers or others. Shooting unarmed looters who are not engaging in any form of violence against a person would therefore clearly violate the Fourth Amendment as interpreted by the Supreme Court.

Unreasonable use of non-lethal force that violates the Fourth Amendment.

A viral video on social media apparently shows Minneapolis law enforcement shooting several people with rubber bullets or paint balls to force them to go inside a house rather than stand on a private porch. The officers were allegedly enforcing a curfew order. That order, however, prohibited only travel on public streets or places (with certain exceptions not relevant here). Violating the order is a misdemeanor. The curfew is likely a constitutionally reasonable response to the disorder and turmoil that has been taking place in Minneapolis. The Citys website containing the order specifically clarified, however, that people may be outside a home as long as they were on private property.

Under these circumstances, the use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appears to lack any other basis in law and was undertaken without warning. Police were apparently shouting that people go inside their homes. When these individuals did not do so and continued recording, an officer said only light em up before the police fired. No additional warning and no explanation for the over-enforcement of curfew order were given. It would therefore amount to an unreasonable use of non-lethal force. Because the purpose was to confine someone in their home, and doing so is likely a seizure, it also violated the Fourth Amendment. The officers undertaking this action are guilty of an assault. The city is also subject to a civil action under federal law.

Another viral video shows several Georgia police officers apparently arresting two college students inside a car, smashing the cars windows and using tasers on both individuals despite no visible resistance. Under these circumstances, the use of force would not reasonably necessary to effectuate the arrest to enforce the curfew order. Indeed, two days later, the Georgia chief of police fired two of the officers pictured in the video, and the Atlanta mayor condemned the officers actions.

Unreasonable uses of force not implicating the Fourth Amendment.

On Saturday night, May 31, 2020, there were reports of Minneapolis police firing rubber bullets and using tear gas and flash-bang devices to disperse allegedly peaceful crowds or protesters, all without warning. Numerous videos indicate that reporters and their cameramen have been pushed and shoved without warning despite their obvious status. And police in Washington D.C. reportedly used rubber bullets and tear gas to break up peaceful protesters outside the White House this past Monday night on June 1, 2020. This included a now-viral video of police and/or national guard, without warning, striking an Australian reporter and her cameraman with a baton and riot shield, respectively, before also being shot with rubber bullets. And several videos from New York City and Los Angeles over the past week seem to show police driving cars into protesters.

Lets assume the police were correct that a lawful government directive or purpose required the people affected to disperse or leave the area at the time and place that these forcible measures were used. Using such non-, lesser-, or potentially-lethal force without prior warning would be unreasonable if less stringent measures were feasible. Invasions of liberty and personal integrity such as occurred in these incidents must have some specific justification, including the absence or failure of feasible, less-intrusive coercive measures.

These examples do not involve a Fourth Amendment search or seizure. Not only were the individuals free to leavemeaning they were not seized under court precedentthey were forced to do so. But even assuming that end was appropriate, can we say the use of tear gas, flash-bang grenades and less- or non-lethal bullets was proper? Can we say that potentially grievously injuring a person by running into them with a car is a reasonable response? Was it consistent with the Fifth and Fourteenth Amendments to the Constitution? Absent some reasonable justification for failing to use lesser coercive measures, the answer is almost certainly no.

Because reasonableness surrounding the use of physical force is a constitutional requirement, nothing in the Insurrection Act would change the above legal analysis. It does not matter if the government agents are members of the national guard or federal armed forces or of the city police or state troopers. Whether acting under state or federal authority, the U.S. Constitution imposes the same constraints.

* * *

The authority to quell riots and looting must be exercised responsibly, meaning reasonably, at every level. All law enforcement officers, members of the National Guard and members of the federal armed forces must be told and trained to use force only when necessary and only when it reasonably appears that lesser means of coercion are not feasible under the circumstances or have failed. Warnings should be given before using physical force when possible. The Department of Justice and many law enforcement agencies refer to this as the use of force continuum. The continuum is not merely policy, however. It must be understood as a constitutional demand. Reasonableness is determined by what a government agent reasonably perceived in good faith under a totality of the circumstances. Those who have sworn to protect this country and its population have been vested with great power and must therefore show great restraint in the use of physical force.

Read more from the original source:
The US Constitution and Limits on Detention and Use of Force in Handling Civil Unrest - Just Security

Updated 9:35am EDT, Saturday, June 6, 2020

FORT WAYNE, Ind. (AP) A lawsuit alleging that a northeastern Indiana sheriff violated a teenage boy's constitutional rights during an altercation last year at a festival has been transferred to federal court.

The lawsuit against Allen County Sheriff David Gladieux was filed by the parents of a 15-year-old boy in a county court, but it was moved to U.S. District Court in Fort Wayne after Gladieuxs attorneys filed a notice of removal.

The suit claims that Gladieux injured the teen and violated his rights under the Fourth Amendment during a July 2019 altercation. Removal to federal court is common when constitutional questions are raised, The Journal Gazette reported.

Brad and Erin Bullermans son was a volunteer during Fort Waynes Three Rivers Festival in July 2019. The couple's suit alleges that Gladieux smelled of alcohol and pushed their son to the ground, injuring him when he fell onto a metal stake, after the teen asked to see Gladieuxs VIP pass to a restroom area.

Their suit is seeking $300,000 for medical costs, emotional distress and other damages, according to documents now filed in federal court.

Gladieux, who was charged with misdemeanor battery in September, has said he used a sweeping motion to move the boys hands from the sheriffs chest before the youth fell. Gladieux was placed in a pretrial diversion program and ordered to pay a $334 fine and complete accredited anger management and alcohol treatment courses.

If he complies with all the programs terms, the battery charge will be dismissed Oct. 18.

The sheriff has apologized for his actions but says he did not commit battery. In a statement after he was charged, Gladieux said he failed to conduct myself in a manner fitting my office.

Continue reading here:
Suit against NE Indiana sheriff transferred to federal court - Huron Daily Tribune

DENVER We've all seen the images of what's taken place around the capitol as part of the recent protests and the tear gas used by police.

"We got to the Civic Center, and that's when we encountered our first round of tear gas," 27-year-old protester Darrell Hampton said.

Hampton was at the protest a week ago. He says they remained peaceful, and then officers got ready to take off.

"I was recording them as they were leaving, and I ended up getting shot in the face with a pepper ball," Hampton said.

The impact knocked Hampton's phone into his face, as seen in his video.

"I was afraid I wasn't going to be able to open my eye again, and so I was just dealing with the pain of the impact, and then the pepper spray started," Hampton said.

Hampton wasn't the only one injured. A group of protesters filed suit against the Denver Police Department and other agencies working the protest. Hampton's video was used as evidence.

"When they reached out to us, I said I'd be willing to testify or whatever it took," Hampton said.

Late Friday, the judge issued a 14-day temporary restraining order.

Under the order:

In the order, the judge says there is a strong case that police violated protesters' first and fourth amendment rights.

He said, "If a store's windows must be broken to protect a protester's facial bones, that is a fair trade."

A ruling Hampton was happy to hear.

"I was just super proud. Pretty crazy to be a part of something like that. Hopefully, other states follow the same precedent," Hampton said.

DPD said via Twitter that while they will comply with the temporary restraining order, they are asking for modifications "that would account for limitations on staffing and body-worn cameras so the directions can be operationalized."

Meanwhile, the protests continue.

"We're just out here wanting our voices heard, and hopefully, this order contributes to the focus being on the protests," Hampton said.

Read the original:
Injured protester reacts to temporary restraining order on use of force issued against DPD - The Denver Channel

STEAMBOAT SPRINGS As protests across the nation demand sweeping reforms in law enforcement, Colorado lawmakers are making their own attempt to fix a system many claim has been broken for decades.

On Thursday, the state legislature began fast-tracking a bill,SB20-217, known as the Law Enforcement Integrity and Accountability Act. Its proponents see it as a way to address problems in criminal justice and hold officers more accountable for misconduct.

Its critics, from law enforcement officials to public prosecutors, agree with the intent of the bill but raise serious concerns over unintended consequences it could have, not only for those enforcing the law but for the people the law is meant to protect.

Lawmakers developed the bill following more than a week of protests that sparked after George Floyd, a black man from Minneapolis, died while in police custody. Videos from bystanders surfaced of a white police officer pressing his knee against Floyds neck for 8 minutes and 46 seconds, a time that has become a poignant symbol at rallies and at Floydsown memorial.

Support Local JournalismDonate

The officer, Derek Chauvin, initially was charged with third-degree murder and second-degree manslaughter. On Wednesday, prosecutors charged Chauvin with the more serious crime of second-degree murder. His bail has been set at$1 million, according to news reports.

Three other officers at the scene, J. Alexander Kueng, Thomas Lane and Tou Thao, have beencharged with aiding and abetting second-degree murder. All four of the men have been fired from the Minneapolis Police Department.

While peace officers rarely are convicted over their use of lethal force, Minnesota Attorney General Keith Ellison said he is confident the facts of this particular case support the charges against the men.

George Floyd mattered. He was loved. His family was important. His life had value, Ellison said in an announcement of the new charges against Chauvin on Wednesday. We will seek justice for him and for you, and we will find it.

But the protests are not just about demanding justice for Floyd. The rallies that originally erupted in the wake of his death have grown more organized, calling for fundamental changes to biased policing thatdisproportionately kill and incarcerate people of color.

Since 2015, the Washington Post has maintained a database to track and document every fatal shooting in the United States by a police officer in the line of duty. According to that database, police kill black Americans at a rate more than double that of white Americans, despite black people accounting for just 13% of the countrys population. Findings also show that police shoot and kill Hispanic Americans at a disproportionate rate.

This is evidence of widespread, systemic biases in how officers enforce the law. Matt Karzen, district attorney for the 14th Judicial District, which includes Routt County, described a culture among certain law enforcement agencies that creates an us versus them mentality. Many officers are taught to treat all citizens as potential threats and to be prepared, even in nonviolent situations, to use lethal force.

For domestic law enforcement function in America in 2020, that is a recipe for disaster, Karzen said.

In light of these issues, Colorados Law Enforcement Integrity and Accountability Act seeks sweeping reforms aimed at ridding agencies of bad cops and increasing public transparency.

Among its many provisions would be a requirement for all peace officers to wear body cameras while on duty. Except in certain circumstances, law enforcement must make public all recordings of an incident within 14 days of the incident occurring.

Officers could use deadly force to arrest someone or to prevent a suspect from fleeing only if that person is using a deadly weapon or likely to cause imminent danger.

The bill establishes a database of police misconduct and requires agencies to compile annual reports to the attorney general. The reports would include information on every time an officer used force that resulted in death or serious bodily injury, all instances when an officer resigned while under investigation for violating department policy, all data relating to stops conducted by peace officers and every instance when an officer conducted an unannounced entry.

On these points, Routt County Sheriff Garrett Wiggins generally agrees. His deputies already use body cameras, and he said a database on officers misconduct would be a helpful tool to enforce policies and prevent agencies from hiring people with a history of violations.

As president of the County Sheriffs of Colorado, Wiggins sees a need for reform and supports the intent of the bill.

I do believe there are always ways we can improve how we interact with the public and our policies and procedures, he said.

But Wiggins has his concerns about the bills language and some provisions he said could make it harder for officers to do their primary job of protecting the public.

With regards to the restrictions against using deadly force, the sheriff worried that it could cause a delay in an officers response who is trying to assess if a suspect has a weapon or could cause imminent danger. Those moments of hesitation could let a suspect flee or cause harm to civilians and officers.

Law enforcement officers have to make millisecond-split decisions. Until youve been in that situation, its really hard to understand what law enforcement officers go through, Wiggins said.

His other major disagreement is over a section of the bill that would strip peace officers of qualified immunity. This protection has been in place to safeguard officers from frivolous lawsuits alleging they violated a plaintiffs rights.

Currently, it is not enough for an officer to violate someones rights for that person to file a lawsuit. A plaintiff has to prove an officer violated a clearly established law, such as the current case against the officers involved in Floyds death.

Under the original version of the bill, the officer would have no immunity to these types of lawsuits and would be required to pay 5% or up to $100,000, whichever is less.

Recruiting new peace officers has been a challenge in recent years, Wiggins said. Agencies across the country are having troublekeeping and hiring positions. If officers lose their qualified immunity and are liable for such hefty lawsuits, Wiggins worried it could cause a mass exodus among law enforcement officials.

Overall, he wants lawmakers to take more time reviewing the bill and considering its effects rather than let heightened emotions lead to knee-jerk action.

Others support the elimination of qualified immunity. The American Civil Liberties Union of Colorado started a petition to garner support for the bill. The stock message that the ACLU asks petitioners to sign and send to state senators describes qualified immunity as a legal doctrine that prevents the community from holding police responsible when they violate laws, policies, and community trust. It states that people of color should not have to live in constant fear of the officials meant to protect them.

An amendment to the bill would protect officers from lawsuits as long as they believed their actions were lawful and that belief was objectively reasonable. As Karzen explained, this means an officer would remain immune to a lawsuit if he or she could prove that his or her actions were appropriate and a reasonable person would agree.

This amendment to the bill gives Karzen more confidence that law enforcement would be held to a higher standard while continuing to protect peace officers that act in good faith. Still, it opens up officers to more litigation and punishment, even in cases where lethal force is not used.

Without (the amendment), the job of law enforcement would have been effectively impossible, Karzen said in an email.

The good-faith approach has legal precedent among civil rights cases, Karzen explained. He recalled a case from Georgia in which he represented a client who argued the local sheriff had violated the clients Fourth Amendment right during a search of his home without a warrant. Karzen was able to prove that the sheriff did not have an objectively reasonable cause to search his clients home, awarding the client an $85,000 jury verdict.

The district attorney has other concerns.

The bill, as currently written, only applies to local and county peace officers not state law enforcement, such as Colorado State Patrol or the Colorado Bureau of Investigation. That exclusion confuses Karzen, who does not understand why one type of officer should be held more accountable than another.

It shows (certain state legislators) will go a long way to protect themselves, but not cities and counties, Karzen said, adding that they effectively customized the legislation to protect their interests, namely the state budget.

The district attorney worried the rules requiring the release of body camera footage could harm due process in criminal trials by publicizing sensitive information, such as confessions, before a judge has a chance to review them. The footage also could include information on juvenile suspects or of victims who do not want their interviews to be public, such as survivors of sexual assault. While the bill allows the redaction of nudity or highly personal circumstances, it does not clearly define what circumstances would qualify.

While Karzen is supportive of the bills intent, these and other lingering issues might not survive constitutional challenges, he said.

The Law Enforcement Integrity and Accountability Act has only just begun its journey through the state legislature, and more amendments are likely in the days ahead.

Rep. Dylan Roberts, a Democrat who represents Routt and Eagle counties, signed on as a co-sponsor of the bill. Two of the bills original sponsors, Sens. Leroy Garcia and Rhona Fields, did not respond to requests for comment.

I agree that the legislation should be proposed, and we need to debate it here, Roberts said, adding that the protests make it particularly timely.

He plans to continue conversations with colleagues and stakeholders, from law enforcement officials to civil rights groups, on making further changes. Many of the provisions are not new concepts, Roberts said, and have long been priorities for him and his colleagues.

There may be a perception that this bill is moving fast, but these are conversations we have been having for years, Roberts said.

As a lawmaker, he wants to use his position of power to create more a more equitable criminal justice system that protects, not endangers, Coloradans. The issues will not be solved overnight, but Roberts believes the state cannot wait any longer to seek substantial change.

Given the national unrest and many events that have led us to this point, I think it has called us as legislators to action to get something done, he said.

To reach Derek Maiolo, call 970-871-4247, emaildmaiolo@SteamboatPilot.comor follow him on Twitter@derek_maiolo.

Read the original here:
Policing the police: A controversial bill intended to hold law enforcement accountable could have unintended consequences - Steamboat Pilot and Today