Federal injunction prevents Columbus police from using tear gas, wooden bullets
A federal judge in Columbus granted a preliminary injunction Friday against the Columbus Division of Police, barring officers' use of tear gas, pepper spray, wooden bullets and other so-called "non-lethal force" against nonviolent protesters.
In a decision favoring 26 protesters who said they were brutalized by officers during demonstrations last year, Chief U.S. District Judge Algenon L. Marbley wrote that "some of the members of the Columbus Police Department had no regard for the rights secured by (the First Amendment of the Constitution) this bedrock principle of American democracy. This case is the sad tale of police officers, clothed with the awesome power of the state, run amok."
Marbley, who opened his 88-page decision Friday with a quote from Martin Luther King Jr., also barred police from inflicting “pain or punishment to deter nonviolent protesters” — those 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 ruling requires Columbus police to ensure that body and vehicle cameras “are in good working order and used during every interaction” with nonviolent protesters, and that officers’ badge numbers and/or identity cards are clearly displayed “even when riot gear is worn.”
John Marshall, lead attorney for plaintiffs in the case, said the decision “will have a significant impact on the ability of the Columbus police to inflict violence against lawful protesters.”
“We captured through eye-witness testimony and by combing through thousands of hours of video, including body cams, what really happened on the streets of Columbus during the Black Lives Matter protests,” Marshall said. “And what really happened was that the police vindictively attacked lawful and peaceful protesters, we believe, because they were protesting against the very violence that the police have long inflicted on communities of color.”
A request for comment from Columbus police made through the Department of Public Safety was met with a prepared statement from Mayor Andrew J. Ginther, who said that the city last summer "was faced with extraordinary circumstances not seen in more than two decades. Today’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," Ginther said, referring to rules the city imposed that had limited use of non-lethal force to situations where officers were directly threatened with physical violence.
"The changes we made last summer have been evident in many protest events that followed, without confrontation or incident. We are committed to continuing to reform policing in Columbus to not only meet, but exceed, the community’s expectations.”
City Attorney Zach Klein said in a prepared statement that the city respected the judge's decision.
"We have always believed that nonviolent, peaceful protesters must be respected, and unnecessary and excessive force must not be used against them," Klein said. "This is reflected in our efforts to change police policies regarding the use of chemical agents and further underscores the need to welcome the Department of Justice to help change the way Columbus polices."
The protesters sued the city in U.S. District Court in Columbus, saying that they were brutalized by Columbus police during protests following the May 25, death of George Floyd last year at the hands of Minneapolis Police officer Derek Chauvin, who was recently convicted of murder in the case.
Racial injustice protests over Floyd's death began in Columbus on May 28 and continued into June and July. Plaintiffs said in court filings that they were “dedicated to nonviolent protest, including civil disobedience of traffic, parade and mass-gathering regulations to generate urgent widespread public attention to the historic and continuing police violence directed overwhelmingly at communities and people of color condoned by mostly white police supervisors and administrators,” according to documents.
Much of the118-page complaint, filed in September, described in detail incidents of what the plaintiffs say was police brutality against nonviolent protesters. The filing included photos of bloody gashes, broken bones and large bruises caused by wooden bullets or from protesters being thrown to the ground by officers, plaintiffs alleged.
Attorneys for the officers and other defendants countered that the city supports peaceful and lawful protest and already “prohibits unjust or prejudicial treatment based on race or color as well as the use of excessive or punitive force.”
They reiterated in court filings the policies and procedures in place to protect and prioritize citizens’ right to “peacefully and lawfully protest” and “prohibit police from retaliating against protesters based on their speech and from using excessive and punitive force.”
They also noted that the city has revised policies, including changes to the city code and charter, to address issues raised in the lawsuit and that “sizable protests pertaining to allegations of police brutality” have taken place in Columbus “with no uses of force at all.”
Plaintiffs asked the court to issue an injunction barring Columbus police from using pepper spray, wooden bullets and other non-lethal weapons against nonviolent protesters, plus compensation for how they were treated by officers.
Similar lawsuits were filed elsewhere. A federal judge restricted Los Angeles police from using projectile launchers against protesters. A similar decision was issued by a federal judge in Oregon.
More than 800 complaints related to police actions during the Columbus protests were submitted to the city. A subsequent investigation by BakerHostetler, the local law firm hired by the city, resulted in 49 reports, though only eight involved sustained allegations and one resulted in discipline. That officer was given documented counseling for not filing the proper paperwork.
The city also hired a retired FBI agent to investigate any potential criminal misconduct by officers during last year’s protests. To date, no charges have been filed.
Additionally, the city commissioned a $250,000 review of police response during last year’s protests by former U.S. Attorney Carter Stewart and the John Glenn College of Public Affairs at Ohio State University and offer recommendations for improvement.
Judge Marbley’s decision Friday included a “History of Policing,” tracing the development and racial underpinnings of law enforcement agencies and practices in the United States from colonial times onward.
The list included formal “slave patrols” in the South during the 1800s; post-Civil War Black Codes and Jim Crow laws and other policies that targeted people of color and immigrants.
The judge described police handling of civil rights protests, writing, “… peaceful protests for civil rights were met with police violence and arrests, fire hoses, and dog attacks. Riots that erupted after instances of police brutality or discrimination occurred with regularity in American cities during the 1960s.”
In addition, Marbley wrote about more-recent incidents, including the “brutal police beating of Rodney King in 1991” and Floyd’s murder last year.
He recounted Columbus police crowd control policies and practices for the use of tear gas, pepper spray, wooden bullets and other munitions, as well as plaintiffs’ descriptions of how they were treated during protests in May and June.
“It is understandable why an officer might take personally profane and provocative chants,” Marbley wrote. “But what is not comprehensible is why she would then let that dictate her treatment of individuals exercising their First Amendment right, no matter how unkind their chants and signs might be. What separates our nation from some others is the ability to criticize our leaders and those bearing the imprimatur of state authority without fear of retribution. Typically, police are the ones who protect and ensure that this cherished right remains unencumbered. That is not what occurred last summer.”
He added later: “Plaintiffs allege that throughout last summer’s protests, they were peacefully observing, providing medical aid, or protesting when Defendants, often clad in riot gear, exercised an indiscriminate use of chemical irritants, physical force, and other weapons.”
The ruling does not completely ban the use of force by police, when warranted.
“The relief that plaintiffs request leaves open all lawful options for police to use reasonable force when necessary to defend against a threat and to make arrests when supported by probable cause,” Marbley wrote. “And any possible benefit police officers could gain from deploying chemical agents, projectiles, or striking weapons against demonstrators who pose no threat and are not resisting lawful commands is outweighed by the irreparable harm peaceful protestors could face.”
Marbley also wrote that protests against police brutality continue: “Protests are inherently ongoing, and it is often difficult to tell where one protest ends and the next begins. There is nothing in the record that indicates that upon another protest, plaintiffs will not experience further constitutional deprivations and physical harm at the hands of the police. Indeed, plaintiffs and witnesses have attended multiple protests and were twice subject to problematic police treatment.”