FERGUSON, Missouri — A federal judge ruled Thursday that police can no longer use tear gas on protesters without declaring an illegal assembly, giving them fair warning and time to vacate the area.
The temporary restraining order comes just weeks after the last rounds of heavy protest in Ferguson in response to a St. Louis County grand jury’s decision not to indict the police officer who shot and killed Michael Brown Jr. A group of protesters had filed the lawsuit asking for a restriction on police use of tear gas and excessive force during demonstrations.
Photo essay: Ferguson in focus: A look back at a community upended
U.S. Federal Judge Carol Jackson heard testimony for nine hours, from plaintiffs as well as police from St. Louis County and the city of St. Louis, according to Brendan Roediger, one of the lead attorney’s on the case.
“Ultimately she decided there was substantial evidence that police had violated the constitutional rights of the protesters, that it was a restriction on their free speech,” Roediger told msnbc shortly after the judge made her ruling.
“The best thing the judge said and she said it a couple of times, was that ‘it’s clear to me for some reason the police are treating this group, around this movement, differently than they treat other large crowds,” Roediger said. “Hopefully it’ll put an end to the practice of protesters having no idea what the police response will be. No more of this sort of punishment in the streets where what the police are going to do is unpredictable and often violent,” he said.
The plaintiffs, who include a diverse group of protesters, a business owner and a legal observer, said in their suit that tear gas was used as punishment against citizens simply exercising their First Amendment rights. The group also claimed they were gassed without warning and without the opportunity or means to comply with police orders to leave the area before the tear gas was sprayed.
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The suit, filed earlier this week in U.S. District Court against the heads of the St. Louis Metropolitan Police Department, the St. Louis County Police Department and the Missouri State Highway Patrol, is the latest in a series of court filings against law enforcement to emerge in the wake of mass protests that have engulfed the region since Brown was shot and killed Aug. 9 by Ferguson Police Officer Darren Wilson.
The announcement on Nov. 24 that a St. Louis County grand jury had decided not to indict Wilson in Brown’s death kicked off rioting and looting by some, but otherwise peaceful mass protests.
On Thursday morning, Judge Jackson called an emergency hearing for demonstrators to argue their case. The group asked the justice to issue a temporary restraining order to stop police from using tear gas “except as a last resort to prevent significant threats to public safety.”
Lawyers for the group said there have been numerous police abuses and excessive force perpetrated against demonstrators who took to public spaces to protest, including crowd control techniques that were outright illegal.
“Essentially what we’re saying is by virtue of using the tear gas, you’re not trying to disperse a crowd, because there hasn’t been a lawful order to disperse a crowd,” said Thomas Harvey, one of the group’s lead lawyers and co-founder of Arch City Defenders, a group that advocates for the poor and vulnerable. “You’re also making it impossible for them to comply with that. So you’re punishing people and the effect of that punishment is to chill their First Amendment rights. So, who comes out to a protests if what they believe is going to happen when they’re out there standing on the streets complying with the police officer’s orders is they’re going to be tear-gassed.”
Roediger, a law professor with the St. Louis University Legal Clinic, said the response by law enforcement to peaceful protests has resembled “a battle in the streets.”
The suit alleges that local and state law enforcement under the auspices of the so-called Unified Command, “knowingly used tear gas and other chemical agents against demonstrators including Plaintiffs in a manner designed to inflict pain and anguish rather than accomplishing any legitimate law enforcement objective.”
“Children and elderly people were among the crowds when the police launched tear gas upon them without warning and often with no clear means of egress,” according to the suit. Further, the suit claims, the Unified Command “labeled gatherings as unlawful assemblies, boxed in demonstrators without ample means of exit, failed to wear visible identification and failed to provide ample notice or opportunity to exit before administering chemical agents upon crowds, administered chemical agents at peaceful demonstrators, and administered chemical agents in ways targeted and designed as punishment.”
The directors of the Unified Command — St. Louis Metropolitan Police Department Chief Sam Dotson, St. Louis County Police Department Chief Jon Belma, and Missouri State Highway Patrol Capt. Ron Johnson — are named as defendants in the lawsuit.
Mike O’Connell, a spokesman for the Missouri State Highway Patrol said in an email to msnbc that the agency “does not comment on pending litigation.”
Sgt. Brian Schellman, a spokesman for the St. Louis County Police, referred any questions regarding the lawsuit to the St. Louis County Counsel’s Office.
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“As far as St. Louis County is concerned we dispute the allegations that are in the petition. We believe that any actions that the county police took were consistent with our policies and did not constitute any excessive force or unauthorized use of any weaponry,” said Bob Grant, the deputy county counselor.
Grant said this latest lawsuit is one of two filed against the county police related to the Ferguson protests. An earlier suit was filed on behalf of a group of 10 plaintiffs alleging various damages related to treatment by law enforcement. He said the county has filed a motion to have that case dismissed.
But the lawsuit filed this week is the only one of the two that seeks injunctive relief.
The six plaintiffs named in the suit are Alexis Templton, 20, and Brittany Ferrell, 25, both of whom have emerged as leaders in the Ferguson protests movement; Maureen Costello, owner of MoKaBe’s, a coffeehouse in St. Louis; Nile McClain, 20, a college student who says she was assaulted, shot with a Taser gun and called racial slurs by officers simply for observing police activity from a sidewalk; Steven Hoffman, 31, a legal observer; and Kira Hudson Banks, 35, a professor of psychology at St. Louis University who says she was hit with tear gas without warning while peacefully protesting on the night of the grand jury’s decision.
Banks told msnbc that the night of the announcement, before the tear gas and bedlam, the protests in St. Louis’s Shaw neighborhood were an eclectic, multi-racial show of solidarity and peace. But as midnight neared, she said, things took an ugly turn.
Banks said that she first noticed some activity near MoKaBe’s coffee shop. MoKaBe’s was one of a handful of designated “safe spaces” for protesters where they could seek food, comfort or safety.
But Banks said she watched as a line of police officers formed and, without warning, began firing tear gas into the crowds of protesters, seemingly targeting the areas near the coffee shop.
“There wasn’t an announcement to disperse. There wasn’t an announcement about unlawful assembly,” Banks said on Wednesday, sitting at a little table on the second floor dining area at MoKaBe’s. “It made me sad, it made me angry. I’m running through the streets that I know, that I sometimes run through for exercise, away from tear gas. It was frustrating, frustrating because it didn’t have to be that way.”
According to the suit, protesters had mobilized following Brown’s killing and the killing of two other young black men by St. Louis city police in the following weeks and months. And again after the grand jury’s decision not to indict Darren Wilson.
Citizens outraged by the conduct of police and other government agencies have taken to public streets and sidewalks in Ferguson as well as other parts of St. Louis County and the city of St. Louis, in a variety of spontaneous and planned demonstrations to seek justice for the deaths of young black men and women at the hands of police, to bring attention to issues of police violence and racist policing in communities of color, and to advocate for policing reforms.
The suit continued that those demonstrators were met with a “heavily militarized response by police.” The suit points to police use of tear gas in enclosed spaces and spaces where police have boxed in demonstrators without means for escape, unilateral designations of unlawful assemblies, excessive force, lack of name badges and use of chemical agents as punishment.
“They raise a litany of different issues in the lawsuit and that will all be worked out in the legal process and generally speaking the legal process is a good procedure for separating facts from everything else and that’s what will happen in this case,” said Winston Calvert, city counselor for the city of St. Louis.
Calvert said he can only speak for the city of St. Louis and none of the other law enforcement agencies across the region, but that city officers have carefully followed the so-called “use of force continuum” that begins with a physical presence, grows to a verbal command and escalates as the situation might require. He said the police department had allowed street marching without a permit, allowed demonstrators to occupy public spaces longer than typically allowed and even let protesters shut down a highway without a single arrest.
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“I think that the past four months have shown us that the city of St. Louis police department has really tried hard to strike that careful balance between protecting the rights of folks to express their views openly and to assemble peacefully and protecting life and property,” he said. “Only on a few isolated occasions was force necessary and the police department had to do what was necessary within the law to protect life and property.”
In October, a federal judge issued an injunction barring police from enforcing what became known as “the five-second rule,” in which protesters in Ferguson could only stay still for that brief amount of time. U.S. District Court Judge Catherine Perry ruled that the statute was unconstitutional because it violated protesters’ freedom of speech rights, as well as due process.
“[T]he policy fails to provide sufficient notice of what is illegal and because it was enforced arbitrarily,” Perry wrote in response to a case brought by the ACLU.
That same month, Amnesty International issued a scathing report on a wide range of alleged police abuses perpetrated during early protests, including the use of tear gas, rubber bullets and high-frequency acoustic devices, the latter of which are used to disperse crowds and can cause serious health risks including loss of balance, ruptured eardrums and nausea.
Banks, the psychology professor, said she decided to join the lawsuit as a way to show just how broad an impact the heavy-handed police response to protesters has had.
“I have agreed to tell my story and make a statement about what happened that night, because I feel unfortunately the face of those who are activists and protesting and demonstrating can be so stereotyped and narrow that I wanted to say, here I am, someone who has a job,” she said. “It’s often a stereotype, ‘oh those people need to get a job, they have nothing better to do.’ I have a very successful life, yet I still want to stand up and stay, I think we need to think about systemic racism, and that there are injustices in our society.”
