The suit — which also names Attorney General William P. Barr as a defendant — was brought by the ACLU of the District of Columbia, the Washington Lawyers’ Committee and the Lawyers’ Committee for Civil Rights Under Law. All plaintiffs said they were gathered peacefully to protest the death in police custody of George Floyd in Minneapolis and other similar deaths.
“We won’t be silenced by tear gas and rubber bullets,” said April Goggans, core organizer of Black Lives Matter D.C., the lead plaintiff in the case. “What happened to our members Monday evening, here in the nation’s capital, was an affront to all our rights.”
ACLU officials called the lawsuit the first of many it intends to file in response to violence by police against protesters and journalists in demonstrations that have erupted in all 50 states, saying the attorney general has become complicit in attacks on First Amendment rights.
“The president’s shameless, unconstitutional, unprovoked and frankly criminal attack on protesters because he disagreed with their views shakes the foundation of our nation’s constitutional order,” said Scott Michelman, legal director for ACLU of D.C.
A White House spokesman referred questions to the Justice Department, which did not immediately respond to a request for comment.
The lawsuit cited Trump’s statements hours before the crackdown calling on the nation’s governors to “dominate your city and your state” and warning, “In Washington, we’re going to do something people haven’t seen before.”
The suit asserted that even as law enforcement officers asserted force on demonstrators at 6:43 p.m., Trump spoke a few hundred yards away in the Rose Garden of the White House, saying, “[If] a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
By contrast, it alleged Trump’s statements about African American and civil rights activists differed markedly from his sympathy with “heavily armed and predominantly white demonstrators” who marched into statehouses to object to coronavirus stay-at-home rules. The suit added that two days earlier, Trump invited his supporters to demonstrate, tweeting, “Tonight, I understand, is MAGA NIGHT AT THE WHITE HOUSE???”
Trump and his allies have given conflicting explanations for how, why and who ordered protesters to be cleared from the area around Lafayette Square in front of the White House.
The White House first said the demonstrators were targeted in an effort to help enforce Washington’s 7 p.m. curfew, though District police said the department did not request such assistance. The Park Police, meanwhile, said its officers moved against the crowd only after protesters began hurling projectiles.
Other officials said the crowd was cleared as part of an existing plan to extend the perimeter around Lafayette Square. When Barr visited the square late Monday afternoon and saw the perimeter had not yet been extended, he then ordered it cleared, they said.
The actions preceded Trump’s movement from the executive mansion to the church, a movement under U.S. Secret Service jurisdiction, officials said.
But Barr held to the White House’s assertion Wednesday that authorities had acted in self-defense. The attorney general also said that while there was “no correlation” between the decision to move out protesters and Trump’s appearance before the church in front of cameras, presidents “should be able to walk out of the White House and across the street.”
Video footage, news reports and accounts from witnesses on the scene that night show the event was largely peaceful before the administration’s use of force.
The White House, the Defense Department and U.S. Park Police said tear gas was not used but acknowledged the deployment of pepper spray — a similar agent with the same chemical effect of incapacitating people through extreme irritation of the eyes, mouth, nose, lungs and skin, and temporary blindness.
The lawsuit seeks unspecified damages and a court order declaring that Trump, Barr and other administration officials conspired to and did violate protesters’ First and Fourth amendment rights. It also seeks a court order barring officials from repeating what the plaintiffs say are unlawful activities.
Jonathan M. Smith, executive director of the Washington Lawyers’ Committee, called the White House “a uniquely important venue for protest and demonstration.” He said the Trump administration’s actions were “a shocking assault” on constitutional rights.
The suit asserts that officials directed law enforcement, National Guard and military police forces to fire chemical agents, rubber bullets and flash canisters, injuring many, some severely.
The filing contends plaintiffs did not hear any requests to disperse, though the government said such warnings were issued. U.S. authorities have since blocked public access to Lafayette Square entirely, extending a perimeter that prevents demonstrators from gathering near the White House.
Chuck Wexler, executive director of the Police Executive Research Forum, which studies and advocates best practices among law enforcement agencies, said the use of chemical agents by local law enforcement is rare and “only a last resort when everything else doesn’t work.”
“If a crowd is peaceful, you would never use it on them,” Wexler said. “And if you did, you would want to announce it. Think about the impact of tear gas on those with some underlying medical or health issues.”
Federal agencies under Barr’s orders are “operating untrained in crucial laws enacted to protect First Amendment rights in the policing of demonstrations” and seizing areas not under federal jurisdiction, said Mara Verheyden-Hilliard, co-founder of the Partnership for Civil Justice Fund.
The fund successfully sued after past mass arrests at Washington demonstrations in 2000 and 2002, winning $24 million in court settlements along with institutional reforms of D.C. police and U.S. Park Police. But those cases took more than a decade to reach resolution, and the Trump administration is running roughshod over the results, Verheyden-Hilliard said.
Similarly, several federal lawsuits for damages brought by the ACLU and others after mass arrests resulted in dropped charges against protesters during Trump’s 2017 inauguration remain pending.