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Civil liberties groups, DOJ reach settlement in Lafayette Square protest case

The Washington Post reconstructed who did what to clear protesters from Lafayette Square, which sits north of the White House, on June 1. Watch how it unfolded. (Video: Sarah Cahlan, Joyce Lee, Atthar Mirza/The Washington Post)

The American Civil Liberties Union of D.C. and the Justice Department announced a settlement on Wednesday to resolve portions of four civil lawsuits sparked by the June 2020 violent and unprovoked clearing of demonstrators from Lafayette Square during protests over the police killing of George Floyd.

Law enforcement authorities fired flash-bang shells, gas and rubber bullets into the crowd of hundreds of peaceful racial justice demonstrators on June 1, 2020, at Lafayette Square across from the White House. Soon after, President Donald Trump walked through the cleared park to visit the historic St. John’s Church, where he posed for a photo op holding a Bible.

The U.S. Park Police and Secret Service agreed as part of the settlement to “update and clarify” policies regarding demonstrations, the Justice Department wrote in a news release, detailing changes like requiring officers to wear badges and nameplates in public view, including on tactical gear and helmets. The agencies agreed to implement policy changes within 30 days, according to the settlement filed Wednesday in federal court in the District.

Scott Michelman, the ACLU of D.C.'s legal director, said the plaintiffs, including Black Lives Matter D.C. and individual demonstrators, sought accountability for those responsible for the forcible clearing of protesters as well as preventive measures to ensure this type of violent and indiscriminate dispersal does not occur again.

“We think these measures and others that we’ve won through the settlement represent significant steps forward in protecting protesters’ rights in the future,” Michelman said.

Civil rights groups behind the case highlighted specific aspects from the settlement in a news release, including dispersal requirements that the Park Police facilitate a safe pathway to exit and provide audible warnings. The Park Police is not permitted to revoke demonstration permits absent “clear and present danger to the public safety,” and officers can’t display gas masks and shields without a high-ranking officer’s approval, “absent exigent circumstances,” court filings show.

The Secret Service’s policy was also modified to include that even if some members of a crowd engage in unlawful conduct, officers do not usually have “blanket grounds” for use of force, court filings show.

In a statement, Associate Attorney General Vanita Gupta said: “These changes to agency policies for protest responses will strengthen our commitment to protecting and respecting constitutionally protected rights.”

Some of the changes the civil rights groups highlighted echo similar language obtained in a 2015 settlement that alleged authorities violated the constitutional rights of hundreds of protesters and bystanders when they were arrested without warning during a September 2002 demonstration in Pershing Park against the World Bank, said Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, the nonprofit group that brought the Pershing Park class action.

A 13-year legal battle begins over police tactics and the right to protest

That agreement, which U.S. District Judge Emmet G. Sullivan called “historic” when approving the deal at the time, overhauled policing practices and included requiring three audible warnings at least two minutes apart to disperse crowds and pathways for protesters to leave before a mass arrest.

Verheyden-Hilliard said she is concerned that law enforcement at Lafayette Square appeared to disregard what she called existing and hard-fought standards, and disagrees with assessments that the policy did not apply.

“The Park Police should have been held to account for violating these rules, which were and are in effect,” Verheyden-Hilliard, who is also a constitutional rights attorney, said. “I just don’t think you could look at language that is a replica of orders and policies and the settlement agreement that was put into place in 2015, and claim that that is new language and a new dawn for democracy when it doesn’t move the ball forward.”

Park Police leaders have said the policy on how often and in what manner officers must warn protesters applied to mass arrest situations, not crowd dispersal like in Lafayette Square, according to a 2021 report from the Office of Inspector General. The report recommended that the Park Police include a detailed policy for “operations involving protests that may require use of force but do not involve high-volume arrests.”

Chuck Wexler, executive director of the Police Executive Research Forum, a Washington-based police think tank, described the policy updates outlined by the Justice Department as measures that bring federal policies more in line with recommended standards used by local agencies across the country.

“It’s holding federal law enforcement to the same standard that state and local have been held, having their names on their uniforms, giving warnings to people … this is what best practices in policing looks like,” he said.

In cases stemming from the Lafayette Square clearing, U.S. District Judge Dabney L. Friedrich — a 2017 Trump appointee who previously served as a federal prosecutor, Senate Judiciary Committee aide and associate counsel in the George W. Bush White House — had already dismissed most claims in overlapping suits brought by the ACLU of D.C., the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Lawyers’ Committee for Civil Rights Under Law. and the law firms of Arnold & Porter; Gibson, Dunn & Crutcher and Regan Zambri Long.

This settlement comes nearly two years after the massive show of force that injured and traumatized protesters. Demonstrators tried to run away from the sudden police aggression, many with their hands raised, shouting “don’t shoot,” while others vomited, coughed and cried.

“When they began to shoot what I believe were tear gas canisters into the crowd, it sounded like bombs were exploding, and the scene quickly resembled a war zone,” plaintiff Radiya Buchanan said in a statement. “People were running over each other, looking for anything to pour into their eyes to stop the burning all while trying to dodge flares and gas canisters. It did not feel like we were in America.”

The plaintiffs’ attorneys said in a news release that the settlement does not address all claims for damages and that they will continue to “seek compensation for demonstrators and accountability for those directly involved.”

The Office of Inspector General found that while D.C. police deployed tear gas at protesters as they tried to move away from the park and Bureau of Prisons officers fired pepper spray, the Park Police did not, according to a June 2021 report. Audio warnings from the Park Police before the mass dispersal were also mostly ineffective as they were not widely heard among the crowd, according to the report. Investigators also said they did not find evidence that the Park Police cleared the square for Trump’s Bible photo op.

“We hope this updated policy can serve as a model for others to uphold civil rights and facilitate safe demonstrations,” Chuck Sams, director of the National Park Service, which includes the Park Police, said in a statement. “It is good for the public and good for our officers.”