Federal judge bans tear gas on non-violent protesters in US city

Police send tear gas into crowds of protesters in Columbus, Ohio on May 30, 2020. PHOTO: NYTIMES

COLUMBUS, OHIO (NYTIMES) - A federal judge has ordered the police in Columbus, Ohio, to stop using tear gas, pepper spray, batons and rubber bullets against non-violent protesters, writing a scathing 88-page opinion that grapples with hundreds of years of police tactics and that says officers had "run amok" with power.

Chief Judge Algenon L. Marbley of the Southern District of Ohio issued the opinion on Friday (April 30) in the case, which began last year when demonstrators accused the Columbus Police Department of using excessive force during protests against police violence and the killing of Mr George Floyd.

The order is effective immediately, according to the city attorney's office, though as a temporary injunction it holds only until the lawsuit is resolved. Legal analysts were struck by Judge Marbley's unsparing rebuke of the police and the historical sweep of his opinion, which was issued as Columbus continued to grapple with accusations of police misconduct.

Judge Marbley's opinion begins with a quote from Martin Luther King Jr. - "Somewhere I read that the greatness of America is the right to protest for rights" - and his swift invocation of the rights of the press, protest and speech.

"Unfortunately, some of the members of the Columbus Police Department had no regard for the rights secured by this bedrock principle of American democracy," Marbley wrote. "This case is the sad tale of police officers, clothed with the awesome power of the state, run amok."

Judge Marbley then traced policing back to the colonial-era "citizen watchmen", which he said punished everything from claims of witchcraft to minor infractions like "extravagant boots". He then explored the slave codes and patrol system of the antebellum South and the Black Codes that came after the Civil War.

"The two codes were so similar, it is a wonder that the copy-and-paste functionality was only invented more recently," the judge wrote.

Rachel Moran, a professor at University of St. Thomas School of Law in Minneapolis, called the opinion "remarkable" and "unusual" in its scope.

"Historically, federal courts have been extremely reluctant to interfere with policing decisions and policies," she said.

The decision, she added, was "unusual not only because it restricts the Police Department's options for using force on protesters, but because it thoroughly sets out this country's troubling history of police brutality and unauthorised uses of force as a backdrop for this order".

A group of protesters filed the lawsuit in July, accusing the Columbus Police Department of using excessive force at protests the month before. That lawsuit, which seeks damages from the city and a permanent injunction on the police tactics, may not conclude for two years, according to Mr Fred Gittes, one of the lawyers representing the protesters.

The protesters requested a temporary injunction "to ensure that future protests do not result in similar behaviour by officers while this lawsuit is still ongoing", Mr Sean Walton, another lawyer representing them, said.

"The use of excessive force against Columbus citizens persists to this day, and while this order ensures that protesters are protected, we must not lose sight of the reason for the protests and the urgent need to reform the Columbus Division of Police."

It was not immediately clear how the order would be put in effect. The Columbus Division of Police has been prohibited from using tear gas since the summer, a spokesman for the city attorney said. The Columbus Police Department did not immediately respond to a request Monday for comment.

The preliminary injunction will hold until a jury comes to a decision about potential damages for protesters. At that point, a judge can decide whether to issue a more permanent injunction.

The opinion bars the police from using a wide array of tactics against non-violent protesters, including "tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling".

Non-violent protesters are defined in the opinion as people who are "chanting, verbally confronting police, sitting, holding their hands up when approaching police, occupying streets or sidewalks, and/or passively resisting police orders".

The injunction also requires the police to wear body cameras and have dashboard cameras "in good working order" on their patrol vehicles.

The opinion comes as Columbus faces continued accusations of police misconduct, including in the police shootings of Ms Ma'Khia Bryant, a 16-year-old Black girl who the police said was wielding a knife, and Mr Miles Jackson, a Black man shot as officers tried to arrest him.

Mayor Andrew J. Ginther of Columbus emphasised his commitment to police reform in a statement.

"Last summer, the city was faced with extraordinary circumstances not seen in more than two decades," he said. "Friday's ruling tells us we fell short in our response. We have already implemented changes that address most, if not all, of the orders in the court's decision so that residents can feel safe in expressing their First Amendment rights in a nonviolent way."

Prof Moran, the law professor, noted that Judge Marbley is one of several Black judges over the past year who seem to be leading the way in protecting constitutional rights and condemning abusive policing.

In April, Wilhelmina Wright, a federal judge in Minnesota, issued an order temporarily barring law enforcement from attacking or arresting journalists for covering protests. That ruling came in response to activities at protests over the fatal police shooting of Mr Daunte Wright, a 20-year-old Black man, during a traffic stop in Brooklyn Centre, Minnesota, on April 11.

In August, Carlton Reeves, a federal judge in Mississippi, urged the Supreme Court to weigh whether qualified immunity, a legal doctrine that shields law enforcement from being held accountable in cases of misconduct, should be tossed into "the dustbin of history".

Like Judge Marbley, Judge Reeves delved into the history of racism in American policing in his opinion, which was delivered in a case involving a white police officer who pulled over a Black man driving a Mercedes convertible.

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