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A protester reacts after being hit with tear gas

A woman reacts to being hit with pepper spray by U.S. Park Police in Lafayette Square near the White House on June 22, 2020 in Washington, D.C. (Photo: Tasos Katopodis /Getty Images)

ACLU Warns Ruling by Trump-Appointed Judge Gives Feds 'Green Light' to Attack Protesters

"Not only is this decision a stunning rejection of our constitutional values and protesters' First Amendment rights, but it effectively places federal officials above the law."

Jake Johnson

The ACLU reacted with outrageand warned of potentially major implications for the right to protest—after a Trump-appointed federal judge on Monday largely dismissed lawsuits accusing the former president and his attorney general of illegally authorizing a violent assault on peaceful demonstrators in the nation's capital last year.

"The blitzkrieg unleashed against civil rights demonstrators in Lafayette Square is a stain on our nation's commitment to the Constitution."
Scott Michelman, ACLU

Filed by the ACLU last June on behalf of Black Lives Matter D.C. and individual demonstrators, the suits alleged that Trump administration officials conspired to clear Lafayette Square of racial justice protesters to make way for then-President Donald Trump's infamous walk to nearby St. John's Episcopal Church. Critics denounced Trump's walk and subsequent threatening remarks in front of the church as a gross photo op amid nationwide protests over the police killing of George Floyd.

U.S. District Judge Dabney Friedrich of Washington, D.C. argued in a 51-page ruling (pdf) Monday that the plaintiffs failed to provide sufficient evidence of a "conspiracy" among Trump administration officials to clear the square for the president's photo op in violation of protesters' constitutional rights.

As the Washington Post reported:

Friedrich acknowledged claims that Trump tweeted threats and encouragement of violence against protesters, and ordered [then-Attorney General William] Barr to take charge of the situation before Barr mobilized law enforcement and appeared at the square just before it was cleared.

The judge also said the square was cleared right before Trump, Barr, and [then-Defense Secretary Mark] Esper's walk to the church. But these events weren't enough to allow conspiracy claims to go forward without further, specific factual allegations, Friedrich wrote.

During oral arguments in the case last month, Friedrich signaled that even if it were demonstrated that the Trump administration violently dispersed the protesters to create a path for the president, she would accept the Biden Justice Department's argument that U.S. national security interests were served by the move.

"How do I get over the clear national security concern over the president's safety?" Friedrich asked. "It seems to me you have to clear the square before he [Trump] walks to the church. Why is that not reasonable?"

Scott Michelman, legal director of the ACLU's D.C. chapter, said in a statement that Friedrich's ruling "essentially gives the federal government a green light to use violence, including lethal force against demonstrators, as long as federal officials claim to be protecting national security."

"Under today's decision, Lafayette Square is now a Constitution-free zone when it comes to the actions of federal officials," Michelman continued. "Not only is this decision a stunning rejection of our constitutional values and protestors' First Amendment rights, but it effectively places federal officials above the law."

Last month, lawyers for the Biden Justice Department urged Friedrich to dismiss the lawsuits against Trump, Barr, and other former administration officials, arguing that they are immune from civil suits over the police actions in Lafayette Square, which included the use of chemical agents such as pepper balls.

While rejecting the lawsuits against federal officials, Friedrich did "allow lawsuits challenging continued restrictions of protester access to Lafayette Square and against local police agencies in Washington and Arlington County, Va., to proceed," the New York Times reported.

Michelman said Monday that the ACLU plans "to evaluate all our legal options to ensure that protestors cannot be wantonly attacked at the whim of a federal official."

"The blitzkrieg unleashed against civil rights demonstrators in Lafayette Square is a stain on our nation's commitment to the Constitution, and slamming the courthouse doors in the face of the demonstrators because the defendants are federal, rather than state or local officials, sends exactly the wrong message about what our country stands for," Michelman added. "Congress should plug this dangerous gap in our system of constitutional remedies by legislating that federal officers, no less than state and local ones, can be sued when they violate individuals' rights."


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