Virginia Judge Refuses to Block Police From Using Tear Gas

An image of George Floyd is projected onto a statue of Confederate General Robert E. Lee in Richmond, Va., on June 8, 2020. (AP Photo/Steve Helber)

RICHMOND, Va. (CN) — A judge in Virginia’s capital denied a request for an injunction blocking the use of tear gas and enforcement of a controversial riot law against protesters in a case brought by ACLU.  

“Plaintiffs have not established that harm is certain or of such imminence that there is a clear and present need for such equitable relief,” Richmond City Circuit Judge Beverly W. Snukals wrote in an order released Tuesday morning. 

“Placing these restrictions on defendants in the form of a preliminary injunction unnecessarily burdens the police and puts them and the public at risk,” she added. “On the other hand, plaintiffs have the option in the future to protest without unlawful force, without blocking roadways and without disrupting or jeopardizing public peace and order.”

It is unclear how the ruling will impact the ongoing protests that began after the death of George Floyd at the hands of Minneapolis police in late May and continued into Monday night.   

Destructive protests that erupted during the first weekend of demonstrations opened the door to an aggressive police response, with over 230 arrests the first Sunday night for violation of a curfew mandated by Democratic Governor Ralph Northam. 

The following Monday, while protesters sat peacefully at the foot of a monument dedicated to Confederate General Robert E. Lee, they were tear-gassed again.

The city is facing a federal lawsuit for that action, and the police response had mellowed in the weeks since, but a sit-in held outside city hall saw a return to aggressive tactics.

It was the use of tear gas and a 1950s unlawful assembly law last week that spurred the latest case, brought on behalf of event organizer Virginia Student Power Network by the ACLU. The groups sought an injunction against both Richmond City Police as well as Virginia State Police, which have both participated in breaking up protests. 

At oral arguments held Monday afternoon, Blair O’Brien with the Virginia Attorney General’s Office said the protesters, by their own admission in the complaint, were obstructing traffic in violation of the unlawful assembly law.

O’Brien pointed to a barricade they had erected using items found around the site, including newspaper boxes. Judge Snukals seemed to focus on whether the erection of a barricade met the required threshold for invoking the law. 

“Was the barricade used to block traffic?” she asked from the bench, wondering if such blockage was illegal.   

But Andrew Chang, an attorney with the Washington-based Covington and Burling who represented the protesters alongside the ACLU, said the barricade was built in response to previous actions taken by the police. 

“Police vehicles were driven into protesters,” he said. Videos from earlier protests showed cops jumping street dividers and hitting people, though such video was not referenced in the hearing. 

Chang instead stressed violations of the riot law required “clear and present danger” and building such barricades was merely a defensive measure. Additionally, he argued, roadblocks are a common and constitutionally protected action. 

“Every time there’s a protest there will be a block of traffic,” he said. “And [protesters] will always fall under the statute.”

But the broader question of the courts interfering with police work was also a sticking point for lawyers representing Richmond’s police department. 

“The protesters want to stop speculative conduct,” argued Richard Hill, senior assistant city attorney. “[The injunction] would have the effect of tying the hands of law enforcement.” 

Chang pushed back and stressed the arrests and use of less-lethal force was not only physically harming protesters, it was chilling those who want to participate in future demonstrations.

“We recognize it’s a difficult job in a difficult time,” said Chang, who pointed to other cities like Portland and Denver, where federal injunctions were granted blocking the use of tear gas. He said the request of the court was only to make the police be “tailored” in their response to future demonstrations. 

In court filings, ACLU attorney Eden Heilman wrote that the unlawful assembly law has violated demonstrators’ First Amendment right to protest. More than a dozen people were initially arrested under it, and Friday night – hours after the injunction request was submitted – five more people were arrested under the law. Videos show tear gas and flashbang grenades were also used against the smaller gathering.

But Snukals wrote in the opinion that no evidence was presented showing tear gas was used after the June 23 incident. 

In a text message, a spokesperson for the Richmond Police Department said it does not comment on pending litigation.

The Virginia ACLU did not return request for comment by press time Tuesday.

Saturday evening brought out thousands to protest Richmond’s police tactics. Despite a standoff at the Virginia State Police training facility on the city’s north side, officers did not engage the protesters, no tear gas was used and no arrests were made. 

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