Federal Judge Stops Columbus, Ohio Police From Using Tear Gas on Protesters

The preliminary injunction bars officers from using tear gas, pepper spray and wooden pellets against nonviolent protesters.

Sasha Tutstone and her son Jaelyn Berry, 9, stand with signs reading “Justice for Andre Hill #blacklivesmatter” and “Cops Stop Killing Black People Our Skin is Not a Crime” in front of Columbus Division of Police Headquarters, Dec. 23, 2020 in downtown Columbus, Ohio. (Brooke LaValley/The Columbus Dispatch via AP)

COLUMBUS, Ohio (CN) — A federal judge has ordered Columbus police to approach interactions with peaceful protesters differently in the wake of their use of force during demonstrations last summer.

Chief Judge for the Southern District of Ohio Algenon Marbley, issued his 88-page ruling on Friday, and his injunction prevents Columbus police from using “non-lethal” force against nonviolent protesters if they are verbally confronting police officers.

This includes the use of tear gas, pepper spray, flash-bang grenades, rubber bullets, wood pellets and batons against protesters who are not threatening physical harm or property destruction.

The preliminary injunction stems from a federal lawsuit filed last July against the city of Columbus and several police officers, in which the plaintiffs claim that Columbus police used excessive force on people participating in protests in May and June of last year.

Those protests came after unarmed Black man George Floyd was killed by former Minneapolis police officer Derek Chauvin, who was found guilty last week of unintentional second-degree murder, third-degree murder and second-degree manslaughter.

In his ruling, Marbley, a Clinton appointee, cited the numerous firsthand accounts by plaintiffs and police body cam footage in his findings that it was clear police used excessive force against protesters who were being peaceful.

“What separates our nation from some others is the ability to criticize our leaders and those bearing the imprimatur of state authority without fear of retribution. Typically, police are the ones who protect and ensure that this cherished right remains unencumbered. That is not what occurred last summer,” Marbley wrote.

The ruling highlighted several firsthand accounts of the protests, including that of plaintiff Aleta Mixon, who attended the protests not to demonstrate herself, but to find her 21-year old daughter who had joined the protest.

According to court documents, Mixon was pepper sprayed on three separate occasions while she asked for help and attempted to look for her daughter. Later, Mixon said she was pushed down off a curb by an officer, who then stomped on her knee causing her injuries that landed her in the hospital for five days.

Another plaintiff, Terry Dean Hubby Jr., attended the protest on May 29, and according to video evidence, was shot by a police projectile while standing on the street. The projectile struck Hubby in the knee and caused him permanent injuries.

Police shot and hit Hubby with the projectile while the Columbus Police Department was giving a dispersal order to the crowd over a loudspeaker.

This timing was highlighted in the court’s ruling which said, “In other words, there was no time for protesters to react.”

“The video and testimonial evidence presented by Plaintiffs suggests that police have used physical violence, tear gas, and pepper spray against peaceful protesters without provocation, and city officials have done nothing or not enough to condemn and correct these actions. This evidence leads to the inference that Plaintiffs have a likelihood of success in establishing that unconstitutional conduct by police was carried out pursuant to an official policy or custom,” Marbley wrote.

The ruling contained other provisions as well, including orders for officers to ensure that body and vehicle cameras are used in “every” interaction with nonviolent protesters. Marbley also ordered police to make sure badge numbers and identity cards are displayed, even when the officers are wearing protective riot gear.

Marbley also hammered on the point that the plaintiffs showed that they were engaged in peaceful behavior during the protests, and that “must be protected even if they stand in opposition to the police.”

“The use of force on nonviolent protesters and congregants raises a serious question if officers acted in reaction to the protests’ antipolice message and aimed to intimidate protesters to deter such speech,’ Marbley wrote. “This is especially so because the allegations and evidence submitted appear to show that at least some Plaintiffs—peaceful protesters or passersby—were targeted and not inadvertently hit.”

Columbus Mayor Andrew Ginther responded to the court’s ruling by saying that the changes they have made since the protests described in the ruling have allowed subsequent demonstrations to proceed without “confrontation or incident.”

“Last summer, the city was faced with extraordinary circumstances not seen in more than two decades. Today’s ruling tells us we fell short in our response,” said Ginther. “We have already implemented changes that address most, if not all, of the orders in the court’s decision so that residents can feel safe in expressing their First Amendment rights in a nonviolent way.”

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