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Black Lives Matter protesters take demand for damages to DC Circuit

The demonstrators claim their constitutional rights were violated when federal officials ordered police to forcibly disperse them from Lafayette Square.

WASHINGTON (CN) — The D.C. Circuit heard arguments Tuesday over whether Black Lives Matter protesters who were forced out of Lafayette Square with tear gas, pepper spray and rubber bullets during the civil rights protests of 2020 are entitled to monetary damages for constitutional claims.

"The plaintiffs are civil rights protesters chanting, kneeling and praying, otherwise nonviolently protesting in the heart of the nation's capital when they were violently dispersed by federal officers," said Scott Michelman, attorney for the plaintiffs and legal director of the Washington, D.C., chapter of the American Civil Liberties Union.

The protesters seek to hold former Attorney General William Barr and other federal officers personally liable for constitutional violations allegedly committed by law-enforcement officers. A federal judge dismissed the case for lack of standing in 2021, finding the plaintiffs’ allegations did not prove an agreement existed between the defendants to violate their rights. 

A week after the police killing of 46-year-old Black man George Floyd in Minneapolis on May 25, 2020, protesters gathered to demonstrate in Lafayette Square, a seven-acre park directly north of the White House. Barr allegedly arrived at the scene soon after the protest began and ordered law enforcement personnel to extend the security perimeter around the White House and clear the streets around Lafayette Square — just before then-President Donald Trump walked through the area for a photo op in front of St. John’s Church.

“Federal law enforcement officers charged, clubbed, tear-gassed, pepper-sprayed, shot with rubber bullets and violently dispersed the civil rights demonstrators, including children,” the protesters' appellate brief states. “ Demonstrators struggled to breathe amidst the chemical attack.”

Michelman said in a phone interview that one of the plaintiffs was nine years old at the time of the protest and now suffers from fear of demonstrations. 

“After that day, when his stepmother would go to protest, he was scared she wasn’t going to be able to come home,” Michelman said. “Most of our clients, if not all of them, report continued trauma from that day.” 

The plaintiffs seek monetary damages under so-called Bivens precedent and injunctive relief for alleged constitutional violations. In the 1971 case Bivens vs. Six Unknown Named Agents, the Supreme Court established a private right of action for monetary damages where no other federal remedy for the vindication of a constitutional right is provided.

Bivens dealt with violations of the Fourth Amendment, while Black Lives Matter protesters are also asserting violations of their First and Fifth Amendment rights. In her dismissal order, U.S. District Judge Dabney Friedrich, a Trump appointee, ruled an "extension of the Bivens remedy to this ‘new context’ is unwarranted.”  

On appeal, the protesters assert that D.C. Circuit precedent allows Bivens damages for First Amendment violations. The U.S. Department of Justice disagrees.

"In a thorough and well-reasoned decision, the district court held that plaintiffs' First, Fourth, and Fifth Amendment claims against the former Attorney General and various U.S. park police officers present a new context and raise multiple special factors weighing strongly against recognizing a new damages cause of action," the federal government defendants' brief to the D.C. Circuit states. 

The protesters' attorneys argue that the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, affirmatively preserves the private cause of action for constitutional violations by government employees.

"This court should hold that the plaintiffs have a preserved Bivens cause of action," Michelman argued Tuesday. "It was preserved by Congress in the Westfall Act." 

Michelman asked the three-judge panel to consider Congress's intentions concerning Bivens when lawmakers created the Westfall Act. 

"While it might not be appropriate for courts to go very far beyond Bivens [or related precedent] on their own, it is appropriate to do whatever Congress wanted to have happen," the ACLU attorney said.

Justice Department attorney Brian Springer, representing the defendants, disagreed with the assertion that the Westfall Act was Congress endorsing Bivens. 

"What Congress did in the Westfall Act did not affirmatively preserve Bivens," Springer said. "Instead, Congress chose not to legislate with respect to Bivens because there is no language in the Westfall Act that suggests that Congress was approving of the Bivens remedy." 

Despite being unable to credit the government's assertion that Lafayette Square was cleared in the interest of presidential security, national security was a factor in the lower court's decision.

"National security – specifically, the country's national-security interest in the safety and security of the president and the area surrounding the White House – strongly weighs against creating a Bivens remedy here," Friedrich wrote in her opinion. 

Attorney Lee Crain of Gibson, Dunn & Crutcher, another member of the plaintiffs' legal team, asserted that the case has no special factors counseling hesitation in recognizing a cause of action. Crain made it clear that his side believes national security was not a factor in the decision-making process of Barr and others when clearing the square.

"What the district court did here was established a categorical rule that any and all claims arising out of Lafayette Park, no matter the violation, no matter the facts, implicate national security and thus are barred," Crain said. 

U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, asked Springer to explain the legal implications of ruling in the government's favor concerning future protests in Lafayette Square. Springer attempted to maneuver away from the question, stating that the solicitor general would have to determine the implications.

"I'm not going to let you say that because the solicitor general isn't standing here. You're not going to answer my question," Wilkins said. "You need to help us understand the legal implications of ruling in your favor."

Springer said the issue should be decided on a case-by-case basis and that the facts of this case implicate a threat to national security warranting the dispersal of protesters. 

Michelman said it is essential for protesters to be able to express their views in Lafayette Square moving forward. 

“Lafayette Square is a place that for decades has been a sight for political protest,” Michelman said. “It is so important to be able to do that within shouting distance of the White House.” 

Crain echoed his co-counsels sentiment in a statement provided to Courthouse News. 

“On June 1, 2020, federal government officials launched a brutal attack on our clients and other peaceful protesters in Lafayette Park, in violation of the U.S. Constitution,” Crain wrote in a statement. “The government is now trying to block our clients from seeking redress for these constitutional violations. If they succeed, Lafayette Park will be transformed from one of the country’s most important venues for public expression into a forum where federal officials can violate the constitution with impunity.”

U.S. Circuit Judges Justin Walker, a Trump appointee, and David Sentelle, a Ronald Reagan appointee, also sat on the panel. The judges did not indicate when they would issue a ruling.

Attorneys from the government stated that they do not comment on on-going litigation. 

Categories / Appeals, Civil Rights, Government

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