A year to the week after Floyd’s death, Justice Department lawyers argued that the lawsuits should also be tossed because last November’s presidential election made future violations unlikely. The government said the square has been reopened, and President Biden’s administration does not share Trump’s stated hostility toward Floyd and the racial justice movement.
The American Civil Liberties Union of D.C., Black Lives Matter, other civil liberties groups and individual protesters accuse Trump and senior officials of driving the June 1 events. Military, federal and local police forcibly cleared the square using batons, clubs, horses, pepper spray, smoke and fired projectiles 30 minutes before a citywide curfew began. Images of violence drew a national backlash against Trump’s calls for “overwhelming force” to put down those he called “THUGS” and domestic terrorists. The nation’s top military official later apologized for walking with Trump before television cameras that day.
Lawyers for the ACLU said that despite legal precedents, the government’s defense would “authorize brutality with impunity” in the heart of Washington at one of the most symbolic spaces within the seat of the federal government.
If their defense was upheld, U.S. authorities “could have used live ammunition to clear the park, and nobody would have a claim against that as an assault on their constitutional rights,” said Scott Michelman, legal director for ACLU-D.C.
In response, Justice Department attorneys for current and former U.S. officials and Park Police officers in their official and individual capacities, called presidential security a “paramount” government interest.
Police acted lawfully to protect the president while he moved a block from the White House through an unscreened crowd at a time of civil unrest, Justice Department trial attorney David G. Cutler said.
The Supreme Court in 2004 ruled that Secret Service agents could not be sued for damages by protesters who claimed their free-speech rights were violated when they were moved two blocks away from an Oregon restaurant where then-president George W. Bush was dining “beyond handgun or explosive reach.”
Cutler argued that likewise, plaintiffs here “seek to hold the attorney general personally liable for damages for actions taken to ensure a safe perimeter for the president of the United States.”
Justice Department trial attorney John B.F. Martin argued that the lawsuits failed to specify what government officials allegedly did to injure plaintiffs. Some senior officials are accused of giving or following orders to clear the park, while some police supervisors or officers are alleged only to have shown up at command centers or walk toward the crowd with shields.
U.S. District Judge Dabney L. Friedrich of Washington held nearly three hours of joint oral arguments over several motions to dismiss four overlapping lawsuits on behalf of more than 100 U.S., D.C. and Arlington County defendants. She promised rulings “in the near future.”
In questioning, Friedrich appeared open to the government’s request.
“How do I get over the clear national security concern over the president’s safety?” the judge asked the plaintiffs at one point. Earlier she asked, “It seems to me you have to clear the square before he [Trump] walks to the church. Why is that not reasonable?”
Michelman said just invoking “national security” as a defense did not make it true nor should it excuse the executive branch from any oversight. Courts have continued to allow claims against police officials for core constitutional violations, he said.
Randy M. Mastro, co-chair of the Gibson, Dunn & Crutcher’s litigation practice, called security the latest in a series of “shifting explanations” after-the-fact by the government to explain its actions in a place used for decades for public protest.
The White House initially said demonstrators were targeted to enforce a 7 p.m. city curfew, though D.C. police denied a request for assistance. Park Police said officers acted in self-defense against protesters tossing projectiles. Barr and other officials said the crowd was cleared as part of an existing plan to extend a perimeter around Lafayette Square.
“Now we hear defendants saying, ‘Oh, this was about security for the president,’ ” Mastro said, “but no defendant suggests the president was at any time in any danger.”
Instead he pointed to Trump’s own statements.
Trump called on governors to “dominate your city and your state” in the hours before the crackdown, adding, “In Washington, we’re going to do something people haven’t seen before.”
Earlier, he tweeted, “When the looting starts, the shooting starts” as protests raged in Minneapolis. Trump also threatened that if demonstrators outside the White House breached its gates, they “would have been greeted with the most vicious dogs and most ominous weapons I have ever seen.”
Finally, the suit asserted that even as police moved on the square at 6:43 p.m., Trump spoke a few hundred yards away in the Rose Garden, 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.”
In the days afterward, Trump issued praise: “Great job done by all. Overwhelming force. Domination.”
The lawsuits seek damages and a court order declaring that authorities conspired to violate civil rights statutes and the First and Fourth amendment rights of protesters injured after being burned, beaten, shot or put into respiratory distress.
After Justice Department lawyers asserted the circumstances of the event were unique and court action was not needed, Mastro quoted a 2015 opinion by Neil M. Gorsuch, later appointed by Trump and confirmed to the Supreme Court: “Sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing. ”
Mastro summarized, “The conduct here was so flagrantly unlawful and so obviously unconstitutional that it requires a remedy, and we are here today, your honor, to see that nothing like this ever happens again in our country.”