Federal Court Allows Protesters’ First Amendment Suit Against Violent Boston Cops To Continue

Free Speech

from the cops-are-rioting dept

A lawsuit filed by four protesters against three Boston police officers can move forward, following a federal judge’s determination that the cops’ counterarguments were too ridiculous to be granted credence.

The plaintiffs were participating in one of thousands of protests that erupted following the murder of George Floyd, an unarmed black man, by a white Minneapolis police officer. According to the complaint, the protesters were beaten or pepper sprayed (or both) by the officers, who were policing the anti-police violence protest.

There’s a Fourth Amendment claim alleging excessive force. And there’s a First Amendment retaliation claim, which is what this decision [PDF] deals with. According to the plaintiffs, the officers’ violent actions were handed out in retribution for the protest’s subject matter: police violence. Apparently, the officers decided to prove the protesters’ point by brutalizing them for daring to speak up against violent retribution by police officers.

The cops tried to have the lawsuit dismissed. But the court doesn’t care for their arguments at all. First, the officers admit the plaintiffs have satisfied two of three elements needed to move forward with a First Amendment retaliation claim (that the protest was protected by the First Amendment and that the allegations are more than adequate to sustain a chilling effect claim).

As for the third prong, the cops had this to say:

The thrust of the Officer Defendants’ motions to dismiss Plaintiffs’ First Amendment claims is that the Amended Complaint (1) fails to state that curbing Plaintiffs’ participation in the protests was the motivating or but-for factor in their uses of force and (2) does not allege that the Officer Defendants even knew the Plaintiffs participated in the protest.

The court finds the second argument patently ridiculous.

The first argument, though perhaps colorable, is not appropriate for determination on the pleadings, and the second argument strains credulity.

The circumstances under which the alleged harms took place make it clear the police were responding to a protest that criticized excessive force deployment by police officers, especially against minorities. That’s sufficient to raise a claim the content matter could have been the rationale for the cops’ violent response. In addition, evidence on the record shows nothing the protesters did should have provoked such a violent response.

Here, the chronology of events, the location of each incident, and all other surrounding circumstances, plainly allow for a reasonable inference that each of the Officer Defendants would have known the Plaintiffs were protestors and that they used force against them for that reason. Nothing in the record thus far, which includes photos of the Plaintiffs with their arms up and backing away from officers, provides a plausible non-retaliatory motive for the Officer Defendants’ use of physical force against the Plaintiffs. Further, because the uses of force against Ackers, Hall, and Chambers-Maher occurred while the officers were being openly recorded, it would be reasonable to infer that the civilians’ filming of the officers formed an unlawful retaliatory motive for the use of force.

To plead ignorance during the pleadings beggars belief, the court says.

Put simply, the Officer Defendants’ argument that they could not have known that the Plaintiffs participated in the protest is untenable. Based on the record currently before the Court, it is evident that each one of these incidents occurred while the BPD was seeking to disperse protesters.

The case can continue, allowing for more examination of the facts by the court and a jury (if the city chooses not to settle). The city is also still in the mix. The court refuses to dismiss the Monell claims alleging inadequate oversight of BPD use of force, as well as a refusal to hold police officials or officers accountable for serious misconduct.

As the court notes, the federal system is currently “flooded” with similar First Amendment retaliation claims against police officers who seemingly engaged in retaliatory violence against anti-police violence protesters. It’s unlikely every lawsuit will succeed, but the court notes it is completely reasonable to infer excessive force deployment against peaceful protesters was retaliatory. While many protests target other government agencies, the George Floyd protests specifically targeted police officers and their tendency to use violence to solve problems. That made it personal for far too many officers. And, as these officers are finding out, that makes their violence a constitutional violation.

Filed Under: 1st amendment, 4th amendment, boston, boston pd, police, protests