Protestors, advocacy groups, civil rights groups and impacted businesses across the United States continue to file lawsuits against cities, police departments and the federal government as the response to demonstrations intensifies. Attorneys representing the defendants will need innovative research and background investigations to meet the challenges of these new types of lawsuits.
Protestors claim police methods, including using tear gas, non-lethal bullets and kettling, have infringed on their first amendment right to assembly. Some of the lawsuits demand police departments stop such tactics, while others are in response to what they say are unlawful arrests.
Since George Floyd’s death during an arrest in May, millions have marched in cities across the country to protest police brutality against African Americans. Some areas experienced looting and other property damage, which law enforcement said justified its response. But those filing lawsuits argue most protests are peaceful and police have switched from enforcement to intimidation.
A class action lawsuit was filed against the City of Denver in July for alleged excessive force against the marchers, journalist and medics, who were there to help those injured by the police. The city previously settled another lawsuit in June concerning tear gas. Similar lawsuits have been filed in Philadelphia and Ohio.
In Seattle, a lawsuit alleges the city has made it too expensive to protest because protestors have to buy helmets, gas masks and goggles to protect themselves from police. The City Council tried to curtail some of the tactics by blocking the city’s police department from using tear gas, but a federal judge temporarily blocked its order.
In Portland, Oregon, where federal officers were arresting protestors, the state’s Department of Justice filed its own lawsuit and accused the federal government of violating civil rights. Videos recorded in the city have prompted discourse online and in court. Some have argued these officers refuse to identify themselves and may be covertly arresting protestors.
The national attention sent Portland’s Mayor Ted Wheeler to the streets to address marchers and officers in July, where he was also reportedly tear gassed. A judge issued a temporary restraining order against the City of Portland and the U.S. Department of Homeland Security while proceedings continue. He suggested the officers wear numbers on their backs, so they could be identified if they committed any violations.
The American Civil Liberties Union (ACLU) joined local journalists to also sue because they allege journalists had been unfairly targeted and arrested for only covering the events. This suit references numerous allegations of violence.
Along with calls to defund the police and eliminate the Department of Homeland Security, activists appear to be focusing on these lawsuits as a way to curtail the police presence at future demonstrations. As the country debates how to fund law enforcement and what constitutes appropriate force, a petition before the Supreme Court may change how the police approach the issue. The pending case, Mckesson v. Doe, concerns a police officer who sued an organizer, rather than an individual protestor.
The news organization Politico is reporting federal officers are meeting with lawyers to discuss specific regulations that would make it easier to remove demonstrators. These laws have less severe penalties but require a lower threshold to arrest. The report reflects legal experts have not reached a consensus on these laws and implementing them may prompt additional lawsuits.
The potential issue with these types of suits is assessing and confirming witness accounts when the events involve large groups of people, most of whom are masked due to the ongoing COVID-19 pandemic or because they seek anonymity. Social media posts from the protests will face scrutiny in court and verifying their legitimacy, including the hash data, may prove decisive.
Attorneys could use trained social media investigators to track relationships and correlate data between friends and family members. Certain posts can be traced utilizing a location-based technology called Geofencing or by compiling check-ins from posters. These services might provide a better timeline of events for trial.
Investigators, skilled at locating evidence through research and interviews can often locate and secure critical evidence. Often times, security videos of events may exist, but are not always easy to locate. Experienced field and research investigators will also need to navigate conflicting stories in person and online. Along with social media, other available record research could help prove or disprove allegations.
Despite hundreds of arrests in the last few months, demonstrations have not stopped, and online organizers are calling for more throughout the year. They may also be exacerbated as the November presidential election gets closer. Attorneys will need investigative work they can rely on to defend against the new landscape of civil litigation.
Posted by Michael Famiglietti on Tuesday, September 8, 2020