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.