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Judge rejects request by Boston cops to dismiss First Amendment action over the way they pepper sprayed and hit George Floyd protesters in 2020

A federal judge ruled today that four people at a George Floyd vigil on the Common on May 31, 2020 can try to convince a jury that Boston Police officers violated their First Amendment rights by attacking them with pepper spray, fists and a bicycle afterwards and that the city created a culture where such a thing could happen.

Among other reasons to seek dismissal, the cops alleged they did not violate the protesters' First Amendment rights because they did not know the four were on Tremont Street because of the Common protest and so did not know they had a First Amendment right to be there.

That assertion "strains credulity," US District Court Judge Alison Burroughs wrote in a decision today that rejected requests by the cops and the city to reject the First Amendment and civil-rights allegations by the four protesters for what happened after police broke up the vigil and ordered nearby T stops shut, on a night that ended with violence and looting across downtown, the Back Bay and the South End.

Here, the chronology of events, the location of each incident, and all other surrounding circumstances, plainly allow for a reasonable inference that each of the Officer Defendants would have known the Plaintiffs were protestors and that they used force against them for that reason. ... Nothing in the record thus far, which includes photos of the Plaintiffs with their arms up and backing away from officers, provides a plausible non-retaliatory motive for the Officer Defendants’ use of physical force against the Plaintiffs. Further, because the uses of force against Ackers, Hall, and Chambers-Maher occurred while the officers were being openly recorded, it would be reasonable to infer that the civilians’ filming of the officers formed an unlawful retaliatory motive for the use of force. ... Put simply, the Officer Defendants’ argument that they could not have known that the Plaintiffs participated in the protest is untenable. Based on the record currently before the Court, it is evident that each one of these incidents occurred while the BPD was seeking to disperse protesters.

Burroughs added, however, that the officers will be able to better rebut the allegation than they have to date during pre-trial discovery and then at trial;

The point of discovery and then trial will be to sort out whether these particular uses of force did or did not implicate the First Amendment.

But, she continued:

Courts around the country, flooded with First Amendments claims pleaded on similar facts following the May 2020 protests, have agreed that the use of force against non-violent protestors can support the inference that officers meant to intimidate protestors and deter antipolice messaging.

Burroughs also allowed the four to continue their lawsuit against the city itself for allegedly creating an atmosphere that allowed and even encouraged misbehavior by police, in large part by ignoring complaints against officers in the past, but also through "a custom of using excessive force." But as she did with the police on the First Amendment issue, she cautioned the four protesters haven't really made a good, detailed case of this to date - something they will have to do at trial to win against the city.

To be sure, Plaintiffs’ support for this claim is presently thin, particularly since Plaintiffs have done little to link their allegations together to present a “systemic pattern” of persistent failure to discipline or investigate, but more is not required at the pleading stage. Plaintiffs have specifically articulated that the City knew constitutional violations occurred and either chose not to investigate or otherwise delayed or discouraged investigation. Taking Plaintiffs’ factual allegations as true and viewing the Amended Complaint in the light most favorable to Plaintiffs, the allegations allow for a reasonable inference that the City has a custom of failing to discipline police misconduct.

Burroughs continued:

The Amended Complaint contains numerous allegations that officers used OC spray, batons, and other physical force against the four Plaintiffs during the May 31 protest. Plaintiffs sufficiently allege, though just barely, that similar constitutional violations occurred on May 29, giving decisionmakers sufficient notice that officers would continue to use unreasonable force against peaceful protestors in the demonstrations to come. The City's argument that the allegations are not enough to support a Monell claim because they rest only on "one night of civil unrest" is unavailing. In addition to the fact that Plaintiffs have suggested that similar conduct occurred during demonstrations on surrounding days, "egregious instances of misconduct" even when "relatively few in number but following a common design, may support an inference that the instances would not occur but for municipal tolerance of the practice in question." Foley v. City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991). ... Here, Plaintiffs describe four similar incidents of excessive force used against peaceful protesters. Further, Plaintiffs may not know, or cannot know, without discovery the full extent of the unreasonable force used by the City against protesters during the May 2020 protests. This Court, in line with several other district courts presented with similar facts, finds that Plaintiffs have sufficiently pleaded that the City had notice of the unlawful use of force against protestors and was deliberately indifferent to those constitutional violations.

She also pointed to a decision by Police Commissioner William Gross to have riot batons distributed to officers beforehand and to have nearby T stations shut as the vigil was dispersed as legitimate acts for a jury to consider whether BPD had a policy that led to the incidents:

Because three of the four Plaintiffs’ injuries occurred while they were trying to leave the protest area and some of the alleged injuries were caused by blows from riot batons, it can be reasonably inferred that Commissioner Gross’s policy decisions led to the constitutional deprivations. ...

Plaintiffs will have to overcome significant issues of proof if they are to prevail at trial. Nonetheless, the Court finds that, at this stage, Plaintiffs have adequately pleaded municipal liability based on the role that City customs and policies allegedly played in the constitutional violations.

PDF icon Complete ruling236.7 KB
PDF icon Protesters' amended complaint437.93 KB

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Has anyone at the T explained who and why ordered that the Downtown stations be closed to thousands of peaceful protestors of color trying to get home? A cynic might believe that racism played a part in the order to close the stations.
Over the weekend thousands of protestors marched in downtown Boston made up of a majority of affluent white women and the stations weren't shut down.

Voting closed 30

It’s a violent riot. See photos from the globe.


Voting closed 42

The fact that a riot did also occur does not invalidate the protest that occurred.

I'll take it as a small victory that you didn't claim that "the media" didn't want us to see those photos when you linked to a Boston Globe story.

Voting closed 38

I went to a fight, and a hockey game broke out

Voting closed 10

These four weren't being violent when the cops attacked them. They were trying to leave the area. Read the judge's quoted opinions.

Voting closed 28

Among other reasons to seek dismissal, the cops alleged they did not violate the protesters' First Amendment rights because they did not know the four were on Tremont Street because of the Common protest and so did not know they had a First Amendment right to be there.

So, cops think they are allowed to beat you, pepper spray you, hit you with bikes...as long as you're not officially part of a protest?

Voting closed 54

There's (ridiculous) case law that to plead the fifth, you have to be aware of that specific right and say something to the effect that you're exercising your right not to speak, rather than just not speaking, so maybe they think you also have to declare your first amendment rights in order to have any?

Voting closed 15

Captain tells the cops to remove people in the street or train station or some other public space where in ordinary circumstances those people might be doing something illegal like jaywalking, disorderly conduct, disturbing the peace, trespassing, etc, (cars need to get by, bikes need to use a lane, trains need to move, people want to get to work etc).

But if people say they are protesting in that space the police may not be able to move them because of their 1st Amendment right to protest. If a person passively resists, the police can use a certain level of force and when that person actively resists the force used goes up and so on and so on.

Fwiw clubbing someone on the back of the head in a moped is almost always going to be excessive force.

Voting closed 28

Oh the "just following orders" defense. Whatever happened to that cop that bragged to another cops cam that he used his car to hit protesters during that same period?

Voting closed 29

Shouldn't the distinction be whether they're breaking another law? I didn't think the first amendment permitted people to break existing laws.

If people are blocking a vehicle lane or train tracks, or standing on a sidewalk actively blocking people (think handegg-type blocking moves at oncoming people), it makes sense that you can ask them to move and tell them you'll have to arrest them if they won't leave. Aren't you permitted to do regardless of whether it's a protest? I've attended several in which cops were reasonable and clearly communicated that we needed to stay off of the street and off of private property, and would respectfully remind people to step back onto the public sidewalk.

If people are milling around on a sidewalk or in a park, and not actively antagonizing people who want to push past, shouldn't they be left alone regardless of stated purpose? Why would you be arresting people, protesting or not, who are standing on public space intended for walking and standing?

Voting closed 8

Cops absolutely believe they have total impunity to inflict whatever damage they want on protesters. Mostly because they're completely right: you don't win first-amendment cases against police departments when it's your word against a cop's, even when there are dozens of people contradicting the BPD narrative. It's only in the past ~15 years that ubiquitous video cameras controlled by entities other than the state have become a thing, and most departments still haven't figured out that when juries see video of police beating peaceful protesters, they tend to stop believing the age-old claims of "they were resisting so we had no choice."

Voting closed 35

Haven’t seen many 1st amendment court cases based on them though. Many some 4th amendment and some civil rights abuse cases sure.

again excessive force is excessive force. The 1st amendment isn’t going to matter in those cases. Does a moped driving down a street illegally ignoring police demands to stop have the 1st Amendment righ to do that? I’d say no. Do the police have the right to shoot them or hit them in the head in the scooter? Also no.

Voting closed 26

The argument that the judge ignored is that the cops claimed they didn't *know* these were protestors so they didn't *know* they were exercising their rights...so they did what they did.

Their argument was that if you're not a protestor, it means you're not "doing the whole free speech thing" so you must be fair game for the treatment that the lawsuit is about.

Whether they abuse protestors or not...their argument was that they think they have impunity if you're NOT a protestor (because that's why it was okay the way they acted since these people weren't protestors to them).

Like how does that not get you disbarred for making that argument as the cops' lawyer?

Voting closed 14

because certain acts can be criminal if not involved in a protest. You don't have the right to block an intersection but if you say you are protesting then maybe you do have the right to block the intersection.

I don't think the cops are saying they have impunity if they are using force against non-protestors, only that protestors 1st amendment rights aren't being violated if they are engaged in certain activities....

By forcing a protester to move by force is violating their first amendment right. Shooting the driver of a moped driving away from a protest is not violating their 1st amendment rights.

Voting closed 9

Shooting the driver of a moped driving away from a protest is not violating their 1st amendment rights.

No, I'd guess it's attempted homicide, if the victim survives.

Voting closed 11

But it wouldn't be a violation of their 1st, 2nd or 3rd Amendment rights. Possibly 4th.

Voting closed 7