TACOMA, Wa. (CN) – Anti-war activists can sue the city of Tacoma for constitutional violations after police used harsh measures, such as sniper positioning and tear gas, to control a 2007 protest at a port used for military transport, a federal judge ruled.
U.S. District Judge Ronald Leighton tossed out most of the civil rights claims by five anti-war protesters who said officers violated their rights to free speech at a demonstration at the Port of Tacoma where people were tear-gassed and pepper sprayed.
The port has become a frequent site of protests against the wars in Iraq and Afghanistan as U.S. military forces use it to transport vehicles and equipment.
Activists demonstrated for 11 days near the port in March 2007, and Tacoma police formed a barrier of officers in riot gear to prevent demonstrators from interfering with the transportation of armored military vehicles.
Police said they added another barrier when the protest became heated with some demonstrators becoming verbally abusive while others used bullhorns, tambourines and drums to make noise. Some of the activists were also wearing anarchist colors and covering their faces with bandanas, according to the city.
Four days into the protest, the police forbade protesters from carrying bags allegedly to prevent them from using chains and locks to form a human blockade.
They arrested one protester, Thomas McCarthy, for carrying a backpack into the protest zone and arrested another five protesters two days later on the same charges.
Officers monitored protesters by videotaping them, running checks on license plates and using “false identities to gain access to the public listservs of organizations such as the Tacoma Students for a Democratic Society,” according to court documents. The police continued to watch protesters in this way for two years after the protest.
The six arrested activists filed suit, claiming that such actions violated their First, Fourth and 14th Amendment rights.
Tacoma, named police officers and the department moved to dismiss in five separate motions, claiming in part that qualified immunity protected the nine individual officers.
Judge Leighton agreed with police that “the no-bag rule was a middle-ground solution in between taking no action whatsoever and implementing voluntary searches” and the officers have immunity against “reasonable mistakes.”
He also found that police surveillance did not disturb the protesters’ “private affairs” and tossed out their due-process and equal-protection claims.
But the city may still be liable for a number of responses, including a zero-tolerance policy, increased parking restrictions, failure to give notice about changing designated protest zones, the no-bag rule, positioning snipers on city rooftops, shining floodlights in the protest zone, filming protestors, and using tear gas and pepper spray.
Regarding the no-bag rule, Leighton found “a reasonable jury could conclude that TPD intended for the rule to deter individuals from participating in the protests.”
The judge cited a police dispatch that said “We only have a handful of protestors here. … The no-bag rule is stopping them.”
While the individual officers cannot be sued, Leighton said a jury might be able to determine that the defendants intended to “deter lawful political speech.”
“Although TPD certainly was not required to simply ignore the calls of protestors to ‘Fuck shit up’ or ‘Tear it down,’ it was required to adequately consider the protestors’ First Amendment rights when developing a plan to ensure public safety at the protest,” the 30-page decision states.