Black Lives Matter Protesters Can Sue Local Police –But Maybe Not Trump and Barr–for Lafayette Square Incident

Protesters in Lafayette Square on June 1, 2020.

Weeks following an inspector general’s report splashed cold water over the story that Lafayette Square was arrested to get a picture opportunity with a Bible, a federal judge found former President Donald Trump and ex-Attorney General Bill Barr cannot be sued over the incident.
“First, national security–namely, the nation’s national-security curiosity about the security and security of the President and the area surrounding the White House–strongly weighs against creating a Bivens remedy here,” U.S. District Judge Dabney Friedrich wrote at a 51-page comment on Monday.

Black Lives Issue protesters Randiya Buchanan and others had expected their suit last year could be one of the cases that met that standard. She along with her fellow demonstrators sued on June 11, 2020, some 10 days later what they called a”day that will live in infamy.”
This was the afternoon that police controversially deployed tear gas, pepper spray, and rubber bullets to eliminate protesters in the wake of George Floyd’s death. When the audience was dispersed, Trump forced his way through the square and posed by a Bible in his right hand before the St. John’s Episcopal Church, that had been ruined by a fire that was intentionally put the night before.
More than a year could pass until the Interior Department’s inspector general revealed that the clearing of this square had been scheduled in progress –without an order from the then-president or solicitor general.
As the lawsuit hadn’t yet attained the merits, the problem before Judge Friedrich was technical. She determined national-security concerns falsified the situation’s dismissal–at least, concerning the federal government agents.
“In this context, it matters not if the federal security risk really justified the particular actions required,” the ruling states. “Rather, the question is if’national-security worries’ were present in the decision-making process that the federal officials confronted and thus’if the Judiciary should change the framework established by the governmental branches for fixing [similar] instances’ […] When it comes to managing audience activity directly beyond this White House,” decision-makers should weigh public, presidential, and White House security interests.”

“As alleged, the defendants banned all expressive actions in Lafayette Square without any basis whatsoever; they left available no alternative channels; plus they forcibly dispersed protestors due to the plaintiffs’ exercise of their protected First Amendment rights,” the ruling states. “Reasonable officers would have known that such alleged actions violated clearly established law.”
Scott Michelman, the legal director of the ACLU of this District of Columbia, denounced the judgment as essentially giving the”national government a green light to use violence, such as deadly force against demonstrators, provided that federal officials claim to be protecting domestic security.
“Under the decision, Lafayette Square is presently a Constitution-free zone when it comes to the activities of federal officials,” Michelman wrote in a declaration. “Not only is the decision a magnificent rejection of our inherent worth and protestors’ First Amendment rights, but it effectively puts federal officials above the law.”
“We plan to evaluate our legal options to make sure that protestors cannot be wantonly assaulted in the use of a federal official,” Michelman added, also urging congressional action to limit federal immunity.
For Buchanan’s lawyer Randy Mastro, by the firm Gibson Dunn, the judgment declared at least a partial success for his client.
“We are gratified that the Court has acknowledged so much of the case is now able to proceed and that it should’have been apparent to every reasonable officer in the time that it occurred’ that the violent clearing of Lafayette Park without any basis would have been unconstitutional,” Mastro wrote in a declaration. “But we will continue to seek justice against those federal officers who succeeded in getting particular claims dismissed against them, and mean to appeal those rulings, because we aim to see to it that something this horrific never happens again in our country.”
Read the judgment below:
(Photo by OLIVIER DOULIERY/AFP through Getty Images.)
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