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  January 4, 2018

ACLU Attorneys Name Cops Accused of Violating Civil Rights on Inauguration Day


The ACLU is seeking damages against individual officers who violated the civil rights of protesters during J20. Scott Michelman, senior staff attorney at the ACLU of D.C., discusses the importance of holding police accountable
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biography

Scott Michelman is Senior Staff Attorney at the ACLU of the District of Columbia. His docket as an impact litigator has spanned a broad range of civil rights/civil liberties issues, including access to the courts, discrimination and selective enforcement, freedom of speech and press, habeas corpus, immigrants’ rights, judicial secrecy, political protest, post-September 11 abuse of executive power, privacy rights, religious freedom, reproductive freedom, the rights of medical marijuana patients, sentencing law, unreasonable search and seizure, and workers’ and consumers’ rights. Mr. Michelman also teaches Civil Rights Litigation at Harvard Law School.


transcript

BAYNARD WOODS: For The Real News, I'm Baynard Woods. On Inauguration Day, the Metropolitan Police Department of Washington D.C. rounded up and arrested more than 200 people after a protest resulted in broken windows. Their trials have been dragging on over the course of the last year, with the first group of defendants being found not guilty on all charges last month. The ACLU of Washington D.C. filed a civil suit alleging that a number of officers, who had not been identified, violated the civil rights of citizens and used a variety of weapons, including pepper spray and StingBall grenades, against them unprovoked.

Last night, ACLU lawyers filed an amended version of the suit naming 27 officers who they allege engaged in unlawful behavior. The suit also added two new plaintiffs to the case, which already involves a journalist, legal observers, and lawful protesters. Gwen Frisbie-Fulton and her 10-year-old son joined the suit, alleging that they were pepper sprayed, knocked down, and not allowed to leave by police. On a video, you can see protesters attempting to shield the child from pepper spray. The MPD would not comment on the suit, but with me to talk about it is Scott Michelman, the senior staff attorney of the ACLU of the District of Columbia. Welcome, Scott.

SCOTT MICHELMAN: Thank you for having me.

BAYNARD WOODS: So it's always struck me as ironic that the U.S. Attorney's Office charged nearly 200 people for dressing identically and covering their faces and alleged that that was part of a conspiracy, while police officers were also wearing uniforms that looked identical and, in many cases, covering their faces. In earlier versions of this suit, the officers were unnamed just as John or Jane Doe. How did you go about uncovering their identities?

SCOTT MICHELMAN: Well, Baynard, this has been a long process for us. We needed discovery from the defendants, that is the judge authorized us to require them to produce some information to us. We also used witness accounts, we used images taken on Inauguration Day, and we used trial testimony, all aimed at trying to figure out who the individuals were on the police force who committed the unlawful acts or who ordered them. Now, this is in stark contrast to what we saw by the U.S. Attorney's Office, where it charged more than 200 people, based not on their own individual acts but on other things that happened in D.C. that day. We're frankly quite disappointed that the U.S. Attorney rushed to charge over 200 people without figuring out who was who. We've tried to avoid that type of a fallacy by being very careful in whom we name and making sure that we have reasonable basis to believe each of these people did something unlawful that violated our clients' rights.

BAYNARD WOODS: Yeah. It is amazing that the U.S. Attorney's Office and the MPD have all of the power of the state to compel testimony and have had a detective, for an entire year, working just on this case, and yet they weren't able to single out individuals in the case. In fact, a motion was filed a couple weeks ago arguing that false testimony was given by that detective to the grand jury, alleging that every single person who was arrested was with the protest for the entire time. In court, it came out that that wasn't true. By contrast, are they all trying to name the individual officers who are individually culpable? Why is it so important that you go to all of that extra effort rather than just suing the individual officers? I mean the department, I'm sorry.

SCOTT MICHELMAN: Absolutely. Because we believe that responsibility needs to be allocated on an individual basis, not based on guilt by association. Now it is possible that there some people that we missed. We're not sure we were able to identify everyone, but we wanted to name the people against whom we could have a real solid and individualized case rather than just trying to paint everyone with a broad brush when we know that many police officers conducted themselves in a perfectly reasonable way. In fact, as our client Gwen Frisbie-Fulton alleges, one officer tried to help her and her son escape the police violence but when she lost him, she and her son were then subjected ... exposed to pepper spray.

BAYNARD WOODS: Yeah. Tell me about her story. It's a remarkable story. I heard it for the first time when Dane Powell, who was one of the defendants in the case but pled guilty to property destruction and to assaulting a police officer and just got out after four months in prison. But in his case, there was a letter that was read that was sent by another person who was there, which turned out to be Ms. Frisbie-Fulton. She didn't know Mr. Powell at all prior to that but said he rescued her child from the police and that moment. Tell us the story of what her day was like there.

SCOTT MICHELMAN: Sure. Well, Gwen's a single mom from North Carolina, where she's worked for decades in the nonprofit world, a food bank, a shelter for domestic violence survivors. She has always tried to make sure her son, whom we name only by his initials in the complaint to protect his privacy, has a strong sense of his First Amendment rights and that he has some political awareness. And so she's been bringing him to protests for years, and he has developed a political awareness and followed the 2016 election quite closely. He would ask to stay up late to watch the debates and to watch the election returns and was disappointed, as many of us were, when Donald Trump won.

So Gwen and her son decided together that they would go to Washington D.C. on Inauguration Day to protest. They had been at a variety of demonstrations that morning when they got word that a friend of theirs had been detained by the police in what we now know as that massive kettle of 200 people at the corner of 12th and L Streets in Downtown Washington D.C. Gwen and her son went there to check on their friend, and they were there for about half-an-hour, 45 minutes without incident. They were part of the group of people not detained, not arrested, just protesters, many of whom were shouting to the police that they should let the other demonstrators go, which is a perfectly reasonable thing to do and a First Amendment protected thing to do of course. You can shout. You can speak your mind, even if you're doing so loudly.

And then, with no apparent warning or provocation whatsoever, a group of several officers began pepper spraying at the crowd. Now, there's been no indication, and we've seen video of this, there's been no indication that they had any reason for doing that or they were provoked or someone was disobeying an order or acting violently toward the police or endangering public safety. Now, Gwen sees this of course and she's terrified for her son's safety as well as her own. She says "Hey, it's time to go." So she and her son start moving away when a line of police officers rush forward and knock the boy down. They run right into him, he falls, she jumps on top of him trying to protect him. They all go down amidst a tangle of bodies. She's terrified.

When she can finally stand up, she has a moment where an officer blocks her way and chastises her for bringing her son in the first place, won't let her leave. Then she tries another way out, and a kind officer tries to lead her to safety but they get separated and she has to flee through the haze of pepper spray, carrying her 10-year-old son, who by this time is crying and sobbing. He's choking, she can't breathe well either, with all the pepper spray. She can't go on any further, and that's when she meets Dane Powell, whom she'd never met before, who offers to help and takes the boy and then they retreat together to the end of the block to try to find somewhere they can breathe.

I mean, it's really a remarkable demonstration of how wanton the police conduct was that day, going far beyond addressing individuals who were creating some sort of threat and going as far as just pepper spraying nonviolent demonstrators, charging into a crowd of nonviolent demonstrators with quite traumatic results for Ms. Frisbie-Fulton and her son.

BAYNARD WOODS: Yeah. I mean, watching the footage of protesters shielding her from police pepper spray ... I was there also that day and remembered a lot of people saying that, yeah, there was a riot. It was a riot of police. The police were acting riotously, and that really is the impression that comes across both from that footage and from looking at your suit and all of the sort of police misconduct that is detailed in there, from the throwing of the StingBall grenades, which a FOIA request that I filed showed that they threw more than 70 of that day, to deploying super soakers full of pepper spray.

But there's ... one defendant in this case hasn't been named. There's still one that is a John Doe, and this is really some of the most egregious conduct that is outlined in the suit. One of the defendants, Shay Horse, was a journalist who ... I mean one of the ... Sorry. One of the plaintiffs, Shay Horse, was a journalist who was taking pictures that day, was pepper sprayed without cause and was then arrested. What happened? What did the still anonymous officer do when they got to the holding facility?

SCOTT MICHELMAN: So the still anonymous officer, whom we have not been able to name, subjected two of our plaintiffs to quite intrusive searches, jabbing them manually in the rectum and also, Milo Gonzales, one of our other plaintiffs, grabbing his testicles in just a dramatically over inclusive and aggressive and intrusive search that was unnecessary. I mean, nobody ... given how many people were arrested and the chaos of the day, it's practically inconceivable that anyone would have gone to the protest, gotten arrested, and been hiding something in their private areas for I don't know even know what purpose. So the fact that they were jabbing and poking at them like that was completely uncalled for. It's just part of this pattern that we see on that day that the police responded with a massive overreaction from the pepper spraying on the street to the mass roundup to the detention of hundreds of individuals without food, water, or access to toilets, and then finally the search of Mr. Horse and Mr. Gonzales.

BAYNARD WOODS: So what are you asking for in this suit? What are the plaintiffs and the ACLU hoping to gain from the District of Columbia and the MPD by filing this suit?

SCOTT MICHELMAN: So we seek damages in the suit. We seek both compensatory damages for injuries, for, in a few cases, lost income, for emotional distress and anxiety that the plaintiffs still feel a month, excuse me, almost a year now later. And more than that, we're also trying to send a message. We're trying to send a message to the District of Columbia that it needs to train and supervise and carefully instruct its police officers not to disrupt First Amendment assemblies, not to trample on the rights of protesters, not to pepper spray indiscriminately but just to enforce the law. If they see a person whom they have probable cause to believe has broken the law, they can enforce the law. That's not a proposition that's in dispute here.

The problem is when you see one person you think may be breaking the law and arrest 200 people with wanton pepper spray, unlawful conditions of confinement, and all the rest. That's not what the Constitution permits. That's not what D.C. law permits. In fact, the D.C. First Amendment Assemblies Act is very clear that a dispersal order must be given and a safe route to disperse, none of which happened here. We want the police to think better of this next time and to do better at protecting and respecting the rights of people expressing and exercising their First Amendment rights.

BAYNARD WOODS: Well, Scott Michelman, Senior Staff Attorney for the ACLU of the District of attorney ... of the District of Columbia, sorry, thanks for coming in and talking to us about this suit today.

SCOTT MICHELMAN: Good to be with you. Thank you.

BAYNARD WOODS: For The Real News, I'm Baynard Woods.



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