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Judge bans Detroit police from using tear gas, batons or rubber bullets against 'peaceful protesters'

George Hunter
The Detroit News

Detroit — A federal judge late Friday granted a temporary restraining order requested Monday by the protest group Detroit Will Breathe, which bars Detroit police officers from using several tactics and equipment on "peaceful protesters" for 14 days.

Detroit Will Breathe organizer Nakia Wallace, right, speaks during the press conference. Detroit Will Breathe and their legal counsel hold a press conference announcing their lawsuit to stop brutal tactics by the Detroit Police Department against protesters. Photos taken at the Theodore Levin U.S. Courthouse in Detroit on Aug, 31, 2020.

Police Chief James Craig responded to the order by U.S. District Judge Laurie J. Michelson by saying his officers only have used force when protesters weren't peaceful and that the ruling won't change how the department handles demonstrations.

Detroit Will Breathe filed a federal lawsuit alleging Detroit police used "unnecessary, unreasonable and excessive force" and violated members' constitutional rights. City attorney Lawrence Garcia responded that he welcomed the suit, because he said it allowed the city to file a counter-suit.

As part of the suit, Detroit Will Breathe also asked for a temporary restraining order barring Detroit officers from employing certain tactics. The judge on Friday granted the request in part. 

Detroit Police Chief James Craig, left, and Wayne County Prosecutor Kym Worthy.

"For a period of 14 days, to be extended upon a showing of good cause, but not beyond 28 days absent consent by ... the City of Detroit, including the Detroit Police Department ... is enjoined from:

  • Using striking weapons (including, but not limited to, batons and shields), chemical agents (including, but not limited to, tear gas and pepper spray), or rubber bullets against any individual peacefully engaging in protest or demonstrations who does not pose a physical threat to the safety of the public or police;
  • Deploying chemical agents or a sound cannon against persons peacefully engaging in protest or demonstrations without an audible warning and a reasonable amount of time to disperse;
  • Placing in a chokehold or ramming with a vehicle any individual attending a demonstration;
  • Tightening the zip ties or handcuffs placed on any individual to the point that the restraints cause physical injury, including loss of circulation or change in color;
  • Arresting any demonstrators en masse without probable cause.

"In the event that Plaintiffs seek relief for an alleged violation of this Order, the City must respond to the motion for relief within 24 hours," the 12-page order said. 

In a statement Friday, Amanda Ghannam, an attorney representing Detroit Will Breathe, said since the demonstrations began, the city through its police department has "repeatedly responded with violence and hostility to the simple message that 'Black lives matter.' 

"We are relieved that Detroit Will Breathe will be able to commemorate their 100th day of protest (Saturday) safely and peacefully, without fear of violent retaliation or unlawful arrest by police — that has always been the main goal of this lawsuit..."

"Our clients simply seek to exercise their First Amendment right to protest, as countless others have done before them. Whether you agree or disagree with the movement's message, their conduct is protected by the Constitution. The decision today affirms that we are on the right side of both the law and history."

The ruling came two days after the Detroit Board of Police Commissioners approved guidelines barring the city's officers from using chokeholds and requiring them to intervene when their colleagues exert unnecessary force.

Craig said since the judge's order bars action against "peaceful protesters," his officers needn't change what they've already been doing.

"The judge’s order is no different than what we’ve always done," Craig said. "Every time we've had to use less-than-lethal force, it's been to address violence by protesters, resisting arrest, or when they've tried to take over an intersection in violation of the law. Technically, nothing has changed."

In a Facebook post, Detroit Will Breathe hailed the judge's order.

"This is a victory to be sure, but it is the first battle in what's about to be a long war," the post said.

Detroit Will Breathe members erupted in cheers and applause when news of the order was announced during the group's 99th day of protesting Friday. 

Michelson wrote in the order: “The Court recognizes that police officers are often faced with dangerous and rapidly evolving situations while trying to enforce the law and maintain the safety of the public. And it is important that police officers have non-lethal options to use to protect themselves and the public when necessary.

"But 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. 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 protesters would face."

Craig said he agrees with the judge.

"This just reinforces our policy," he said. "We don't use force against peaceful protesters. In fact, we've allowed them to take over all lanes of streets, when technically, we didn't have to do that, because they didn't have permits. But we want them to be able to express themselves, so we allowed it."

The judge wrote: "In issuing a TRO, it joins the approach taken by its sister courts in a number of cities who have analyzed similar claims and issued similar injunctions." She cited similar TRO requests from "Don’t Shoot Portland," "Black Lives Matter Seattle," and "Anti Police-Terror Project v. City of Oakland."

Among the allegations made in the Detroit Will Breathe suit are claims that since demonstrations began in late May, peaceful protesters have been "tear-gassed, pepper-sprayed, beaten and otherwise subjected to unconstitutional excessive force, shot with rubber bullets ... put in chokeholds ... and arrested en masse without probable cause."

Craig said his officers haven't used chokeholds, and questioned why the tactic was banned in the judge's order, "since they're already banned in Detroit, except in life-or-death situations."

Detroit Will Breathe's lawsuit focused in part on an Aug. 22 incident, when the group posted on Facebook that it planned to take over the intersection of Woodward and John R to protest Operation Legend, a local-federal task force that aims to curb violence. Some protesters have said they don't want the federal agents who are part of the initiative in Detroit.

Craig said that protest wasn't peaceful.

"When they try to take over an area like they did in Seattle, that's not going to happen," Craig said, referring to authorities in Seattle who allowed protesters to occupy several blocks for about two weeks until clearing the area in late June. There were two murders and a sexual assault in the zone.

Craig said nothing in the order bars his officers from arresting protesters who don't comply with orders to disperse when they're blocking intersections; or from using force against those who resist arrest.

"If someone is resisting arrest, or trying to attack our officers, we will use the force that's both reasonable and necessary to overcome the resistance," he said. "We don't want the protesters injured, and we don't want officers injured, either."

Since the temporary restraining order is only in effect for 14 days, Detroit Will Breathe will seek a permanent injunction, Ghannam said.

That said, this is an encouraging victory, as Judge Michelson has found that we have demonstrated a likelihood of success on our First and Fourth Amendment claims," the attorney said. "We will continue to litigate these claims, and our clients will continue to speak, march, and organize against racism and police brutality."

The chief said he has ordered each protest to be videotaped.

"We've been doing that, long before this order," he said. "We want to document everything. When we give orders to disperse when people are blocking an intersection, and they refuse repeated orders, we want all that documented when we make arrests."

ghunter@detroitnews.com

(313) 222-2134

Twitter: @GeorgeHunter_DN

Staff Writer Mark Hicks contributed