[ Protesters took to the streets last summer to protest police
violence. Lawsuits making headway in Columbus and other cities are
showing that the police crackdown helped prove their point.]
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THE POLICE 'JUST LAUNCHED A WAR’  
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J. Lester Feder
May 9, 2021
Politico
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_ Protesters took to the streets last summer to protest police
violence. Lawsuits making headway in Columbus and other cities are
showing that the police crackdown helped prove their point. _

,

 

Tammy Fournier-Alsaada was addressing a crowd in front of Ohio’s
domed Capitol building one day last spring when someone whispered in
her ear: Police were arresting protesters.

Fournier-Alsaada, 59, knew a thing or two about protests. She was an
organizer with the People’s Justice Project, which had been fighting
police abuse in Columbus since 2015. Fournier-Alsaada also knew the
police. She had sat across the table from top officers as a member of
a mayor-appointed commission on public safety reform.

This was May 30, 2020, the third day of racial justice protests in
Columbus following the killing of George Floyd last spring. Everything
looked mostly peaceful from Fournier-Alsaada’s vantage point on the
stage — there had been some violence on a previous night — but she
noticed a little commotion down the block.

She dropped the mic and rushed to investigate, but found a cordon of
bicycle cops blocking her way. "Shut up, bitch!" Fournier-Alsaada said
one officer spat at her when she asked to be allowed to pass. She
spotted a familiar face among the officers milling in the street — a
deputy chief she knew from the mayoral commission. He ordered his
officers to allow Fournier-Alsaada and her group to cross the street.

[Alsaada during a 2016 protest]

Tammy Fournier-Alsaada raises her fist at a rally against police
violence in 2016. (AP Photo/John Minchillo)

She thought she’d gotten the police’s cooperation, but quickly
realized they’d painted a target on her back. She was halfway across
the empty street when she heard a sound like a bomb going off. She
looked to the sky and saw tear gas canisters arcing right toward her.
She was immediately blinded and unable to breathe — all she could
hear was people screaming. Mounted officers charged into the chaos, a
horse knocking her to the ground as she struggled to stand.

“It felt like the Columbus Police Department was at war with its
citizens in the middle of the day, in the middle of downtown,”
Fournier-Alsaada said. “That's what it was — they just launched a
war.”

Dozens of protesters were injured by police over several days of
unrest. Police fired wooden bullets at protesters, shattering one
man’s kneecap. Columbus’ three highest-ranking Black elected
officials — a congresswoman, the president of the City Council, and
a member of the county board of commissioners — were tear-gassed in
the face.

[Protesters clash with police]

Police using chemical irritants against protestors near the Ohio
Statehouse following the death of George Floyd in Minneapolis,
Minnesota last May. (Photo by Matthew Hatcher/Getty Images)

In one incident caught on video, a woman named Aleta Mixon approached
police for help finding her daughter. Instead, police sprayed her
three times with tear gas at point-blank range. Mixon later testified
that an officer also knocked her to the ground and stomped on her
knee, shouting, “That’s what the f--- you get for being down here,
you Black protesting b----.”

Fournier-Alsaada, Mixon and 24 others injured during the protests got
lawyers. This group’s legal team included the city’s foremost
civil rights attorneys, some of whom had been filing suits against the
city and its police department for racial discrimination for more than
40 years.

Their case — known as _Alsaada v. City of Columbus _— is
primarily about whether the police unconstitutionally used tear gas
and other “less-lethal” weapons against protesters peacefully
exercising their right to protest. But they also put another question
before the court, one that is usually very hard for private litigants
to raise: Does the Columbus police department have a pattern and
practice of racial bias that makes it fundamentally unable to regulate
itself? Whatever the beliefs of individual officers, does
the _institution_ behave in a racist way?

For decades, lawyers have tried to ask courts to stop biased policing,
but legal technicalities make that difficult. Private plaintiffs
sometimes can sue for damages when an officer violates their
individual rights, but going after a whole department for
institutional racism is usually out of reach. The Department of
Justice does have the ability to sue a police department for racist
"patterns and practices" under federal law, but it’s willingness to
do so has been inconsistent.

But the police response to last year’s racial justice protests —
which was often violent, extensively videoed and often in stark
contrast with muted responses to right-wing protests — has given
attorneys around the country the kind of evidence that they often lack
to put systematic police racism before federal judges. There are now
more than 70 lawsuits pending over police violence during last
summer’s racial justice protests, from Seattle to Detroit to New
York.

“The Columbus police put their propensity for violence, especially
when dealing with Black people and people who question their racism
— Black or white — on display,” said Fred Gittes, one of the
attorneys in the Columbus case. “[That] was made public and videoed
during May and June of 2020.”

As the one-year anniversary of Floyd’s killing approaches, the
impact of the uprising that followed continues to grow. Judges have
already issued preliminary rulings in several cities reining in the
kinds of force police can use in response to peaceful protests.

The ruling in _Alsaada_ from an Ohio federal court on April 30 was
especially eloquent in condemning police abuse as part of a history of
biased policing.

“This case is the sad tale of police officers, clothed with the
awesome power of the state, run amok,” wrote Judge Algenon Marbley.
Tracing the history of modern police departments from antebellum slave
patrols to the murder of George Floyd, Marbley wrote, “New dark
chapters have been drafted in this institution’s history books.”

[Protester following clash with police]

A protester in downtown Columbus following clashes with the police in
May, 2020. (Photo by Matthew Hatcher/Getty Images)

Marbley’s preliminary injunction was a significant victory for
civil rights advocates, but it is not the final word in _Alsaada_;
that will depend on the outcome of a full trial, which could take
years. As this and other suits around the country move through federal
courts, attorneys want to review hundreds of hours of body camera
footage from last year's protests, as well as depose mayors, police
chiefs and other high-ranking officials.

As recent history has shown, it’s hard to sue police for wrongdoing
in America. You have to overcome the legal doctrine known as
“qualified immunity,” which protects officers from litigation if
they’re acting in their official capacity. You also have to overcome
the built-in bias that judges and juries often have to believe the
word of the police over the word of victims, especially if those
victims are people of color.

This has made it hard enough to sue individual officers for specific
incidents of wrongdoing in the past. But there are even more hurdles
for plaintiffs who want courts to order systematic changes to the way
police do business in the future — what’s technically known as
“injunctive relief.”

“There's a number of legal doctrines that make it difficult for
private plaintiffs to sue police departments for injunctive relief,”
said Christy Lopez, a Georgetown Law professor who led
pattern-and-practice investigations of police departments when she was
an official at the Justice Department. “It's one thing to sue an
officer and say, ‘I want money damages for you violating my
rights.’ It's another thing to say, ‘I want the police to change
its use-of-force training, and its use-of-force reporting, and to ban
chokeholds and do all these other things’.”

There have been only a handful of successful lawsuits that won major
court orders forcing police departments to systematically change
policy, Lopez said. Lopez served as a court-appointed monitor in
Oakland, California, where a case filed in 2000 led a court to order a
broad overhaul of the department’s discipline, training and
management practices. Another important victory for private plaintiffs
was litigation against New York City’s “stop-and-frisk” policy,
which a judge ruled was unconstitutional in 2013.

DOJ has had much more success getting courts to step in than private
plaintiffs.

The 1994 crime bill gave the DOJ the ability to sue departments for
“a pattern or practice of conduct … that deprives persons of
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.” Columbus itself was
actually one of the first cities to be sued under this provision —
and the first jurisdiction to aggressively fight a settlement
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thanks in large part because of to the opposition of the local
Fraternal Order of Police. Over recent decades, the DOJ has used its
power to win consent decrees in cities including
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Detroit and New Orleans.

 

[Protester lays down in front of a police line]

Protesters perform a mass ‘die-in’ in front of the Ohio Statehouse
on June 1, 2020. (Photo by Matthew Hatcher/Getty Images)

But the federal government has used this power only in fits and
starts. The Biden administration has recently opened investigations
under this provision into the police departments of Minneapolis and
Louisville, but the Trump administration issued a memo in its earliest
days declaring it would not be in the business of overseeing local
police departments. The George W. Bush administration also pulled back
from using this authority after a few path-breaking investigations
under President Bill Clinton.

Civil rights attorneys are under no illusion that the lawsuits arising
out of last year's protests are a substitute for federal action — or
an overhaul of police departments by elected officials. But they do
open the door to a kind of litigation that is often hard to pursue.

“All this is unusual,” said Jesse Merrithew, an attorney
representing protesters in Portland, Oregon. “The sustained nature
of the protest this summer really allowed a critical examination of
tactics and bias that we don't typically get an opportunity to have.
... It's [usually] really hard for those of us who are litigators to
say, ‘Oh, this is a pattern and practice of the police department of
using force against this group and not that group.’”

That’s partly why Marbley’s ruling in Columbus is so important,
said Sean Walton, another attorney representing the Columbus
protesters.

“The comprehensive nature of the judge's opinion, it really brings
to life and it showcases to the entire world this underbelly that
exists where the Columbus division of police have these unwritten
policies that allow them to continuously discriminate against
citizens,” Walton said.

Columbus, America’s 14th largest city, is in a county that ranks in
the top 20 counties with the highest rates of fatal police shootings,
according to a recent study
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In the months before the hearings in the _Alsaada_ case, police
officers killed two Black men in Columbus — Casey Goodson
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Hill
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Two more Black residents — Miles Jackson
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16-year-old Ma’Khia Bryant
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were shot by police just before Marbley issued his ruling.

Against this backdrop, plaintiffs’ attorneys presented evidence of
admitted bias within the department. One piece of evidence was
a $475,000 settlement the city
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with a Black officer who was discriminated against within the
department. Even though another officer routinely used racial slurs
and allegedly threatened violence against him, the offender was not
disciplined for discrimination and continues to work in the
department.

 

[Ma’Khia Bryant family]

The family of Ma’Khia Bryant, the 16-year-old girl shot and killed
by a Columbus police officer on April 20, before a news conference in
Columbus, Ohio. The family’s attorney, Michelle Martin, has called
for a full investigation. (AP Photo/Jay LaPrete)

Another key piece of evidence was a 2019 report by the Matrix
Consulting Group which found that 29 percent of Columbus officers and
70 percent of the force’s Black officers said they’d personally
witnessed racial discrimination within the department. A significant
portion — 8 percent of all officers and nearly 30 percent of Black
officers — said they’d witnessed officers discriminating against
members of the public. In fact, only one officer has ever been
recommended for termination for alleged discrimination — and she was
a Black woman who wrote a book decrying racism within the department.

These facts won a stunning admission from Columbus Mayor Andrew
Ginther during hearings in the police case.

“Mr. Mayor, you know from your consultants that there is a
substantial portion of your police force that you cannot rely on ...
to report misconduct by other officers?” asked attorney Gittes.

“Based on the findings of the Matrix report, yes, that is
correct,” the mayor replied.

Columbus has struggled with racism in its police department even as
the city has elected a number of high-ranking Black officials.
Ginther’s predecessor, Michael Coleman, was the city’s first Black
mayor when elected in 2000 and served four terms before leaving office
in 2015.

[Andrew Ginther]

Columbus Mayor Andrew Ginther pays his respects at the casket of Andre
Hill during funeral services on Tuesday, Jan. 5. Hill, a 47-year-old
Black man, was shot and killed by a Columbus police officer on Dec.
22, 2020 after officers responded to a non-emergency call. (Joshua A.
Bickel/The Columbus Dispatch via AP)

Ginther has long acknowledged the Columbus police department has a
problem with institutional racism and has taken steps to correct it,
including demoting the police chief who was in charge of the
department during last summer’s protests. Ginther also won passage
of a referendum during last year’s elections that would create a
civilian review board to investigate complaints against officers. The
city also recently adopted a law that would require officers to
activate body cameras during any enforcement action. And Ginther also
ordered the police to rein in their use of tear gas during protests,
though the court found that order was insufficient.

In an interview, Ginther acknowledged that reforming the police
department is an uphill battle.

“Culture eats strategy for breakfast every day. And so no matter
what kind of strategy and plan we had, the culture had to change,”
Ginther said. The local Fraternal Order of Police, Ginther said, has
“opposed me on every form of reforms.”

“It's an organization that has fought change and reform
historically, and the community is demanding change and reform. And so
the FOP is going to have to decide whether or not they're going to
stand with the community or be opposed to the community.”

Since the most recent officer shooting of a Black citizen, Ginther has
invited the DOJ to open an investigation into his own police
department. The inquiry is necessary, Ginther wrote in the letter
requesting federal intervention, because “the City has been met with
fierce opposition from leadership within the Columbus Division of
police.”

“It has become clear we will not be able to affect the rapid,
significant and sustainable change we all desire and demand without
different levers of power,” he wrote.

The local FOP, Capital City Lodge #9, did not respond to requests for
comment. But the union has petitioned to intervene in _Alsaada_,
opposing changes to the use of less-lethal weapons against non-violent
protesters, because this “would dramatically affect and alter the
terms and conditions of employment” under the contract with the
city. The FOP’s motion to intervene says the union is particularly
concerned about protecting “several important provisions that ensure
the health and safety of law enforcement officers while they are on
duty.”

[Protesting near police in Columbus, Ohio]

A protester front of a row of police in downtown Columbus in May,
2020. (Photo by Matthew Hatcher/Getty Images)

The city of Columbus has not decided whether it will challenge
Marbley’s order, according to a statement from Columbus City
Attorney Zach Klein, but Klein said, “We respect Judge Marbley’s
decision and agree with the need for changing the way police handle
First Amendment-protected protests.”

But even if the city doesn’t fight the order, the FOP could. At the
same time Marbley issued his judgment against the Columbus police, he
also granted the FOP’s request to intervene in the case.

Whatever the final outcome in Columbus, it seems clear that this type
of litigation will become more common. Even now, nearly a year since
George Floyd was murdered in Minneapolis, new cases are still being
filed connected to police use of force during the protests that
followed.

“These claims are becoming much more widespread across the country
because police violence is becoming much more widespread across the
country,” said Amanda Ghannam, an attorney representing protesters
in Detroit. All across the country, “we see the police sort of using
the same tactics, the same techniques, the same equipment, the same
weaponry.”

And this litigation will continue, said Ghannam’s co-counsel, Jack
Schulz, until police themselves recognize the need for reform.

“I think there's really no resolution without the police identifying
that there is an institutional problem going on and exhibiting any
willingness to change their ways,” Schulz said. “I don't know that
they're ready to do that.”

_J. Lester Feder is a freelance journalist and 2020-2021
Knight-Wallace Reporting Fellow at the University of Michigan._

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