A federal judge on Monday dismissed all but two of the claims Black Lives Matter and several individual demonstrators brought against Donald Trump, William Barr, and others in the sprawling lawsuit filed after the clearing of Lafayette Square on June 1, 2020.
Bigger than this legal defeat, however, was the report from the inspector general of the Department of the Interior disproving many of the substantive allegations in the plaintiffs’ complaint — all of which the court had accepted as true in its 50-page opinion.
Attorneys for BLM and the demonstrators now face the unpleasant choice of reframing their case, and thus acknowledging the falsity of their initial allegations, or risking sanctions for alleging facts without evidentiary support.
Court Assumed BLM Complaints Were True
In an opinion issued earlier this week, Judge Dabney Friedrich analyzed the claims Black Lives Matter and several individual plaintiffs brought against a bevy of defendants, including former President Trump, former Attorney General Barr, the U.S. Park Police, the D.C. National Guard, the U.S. Secret Service, the Federal Bureau of Prisons, the Arlington County Police Department, the D.C. Metropolitan Police Department, as well as individual officers working for the various agencies.
Before delving into the various constitutional and statutory claims, Friedrich made clear he “must accept as true all material factual allegations in the complaint” at this stage of the litigation. This governing standard created an interesting dynamic because the complaints (which were amended three times before the court addressed the defendants’ motions to dismiss) and the corresponding oral argument predated the report from the inspector general. Released earlier this month, that report undermined the prevailing narratives about the clearing of Lafayette Park.
So, in deciding the defendants’ motions to dismiss — a procedure used to quickly toss out a case because the alleged facts fail to support a legal claim — the court cited the falsehoods or half-truths of the complaint. “Peaceful protesters assembled in historic Lafayette Park across from the White House,” the court quoted, when “officials, wielding batons, sprayed the crowd with tear gas, flash-bang grenades, smoke bombs, and rubber bullets.”
According to the complaint, law enforcement did this “to clear the area to permit the President to walk to a photo opportunity at a nearby church.” The plaintiffs further alleged (and the opinion recounted) “the Department of Justice has officially acknowledged that Defendant Barr ordered Lafayette Square cleared minutes before the assault started.” Some of the plaintiffs alleged — in addition to Arlington County Police Department officers, Secret Service agents, and Park Police — officers from D.C. Metropolitan Police Department had assisted in the clearing of Lafayette Square.
Claims Contradicted by Inspector General’s Report
During oral argument last month, the plaintiffs’ lawyers hammered these same points, with attorney Randy Mastro proclaiming “Attorney General Barr incredibly shows up himself to survey the scene, looks at the assembled crowd, and then gives the order, ‘Clear the park.’”
“Several minutes later,” according to Mastro, “law enforcement advanced on the peaceful protesters, spraying them with tear gas, pelleting them with rubber bullets, dropping smoke bombs and incendiary grenades, and using their shields and batons like weapons.” He further stressed this was all so “the president could cross a cleared path to do a photo op in front of a church.”
The American Civil Liberties Union attorney representing BLM, Scott Michelman, also pushed many of these allegations, and even brought up newspaper articles to support them. “These articles,” Michelman explained to the court, “are only in here to establish that as unbelievable as these events are to most of us and as shocked as we were to learn about them, they are corroborated not only by the eyewitness accounts that we give in the complaint but also by other news articles to show the court that we’re not making these things up.”
What articles exactly did Michelman cite in the complaint? Among others, they included the Washington Post’s “Inside the Push to Teargas Protesters Ahead of a Trump Photo Op,” and a Reuters YouTube video entitled “Peaceful Protesters Fired at with Tear Gas, Rubber Bullets by U.S. Military Police.”
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But the inspector general’s report, released just more than a week after the court heard arguments on the motion to dismiss, disproved many of the plaintiffs’ allegations. For instance, the report refuted the spin that the protests were peaceful, noting the two days prior saw 49 Park Service officers injured and federal and private property vandalized.
More significantly, the inspector general concluded the Park Police “cleared the park to allow the contractor to safely install the anti-scale fencing in response to destruction of property and injury to officers” that had occurred the days before. It was not cleared “to allow the President to survey the damage and walk to St. John’s Church.”
Further, the Metropolitan Police had not participated in the clearing of Lafayette Square. However, it appears to be the only law enforcement entity that used CS gas (known colloquially as tear gas) on protesters outside of the park.
Most of BLM’s Claims Dismissed
In Monday’s opinion, while the district court noted there is “some dispute about whether the D.C. defendants were personally involved in clearing Lafayette Square,” the judge made no mention of the inspector general’s report nor its findings that the park was not cleared for a photo op. But even accepting the plaintiffs’ numerous allegations (many of which the report contradicted), the court nonetheless dismissed all but two of the claims.
Of the two claims that weren’t dismissed, the court first held the plaintiffs’ allegations sufficiently stated First Amendment claims against the D.C. and Arlington County law enforcement officers. According to the complaints, those officials used force to disperse “a crowd of peaceful protestors who were exercising their First Amendment rights.”
Second, the plaintiffs’ First Amendment claim against the federal government, seeking injunctive relief, survived because it “challenged the continued restrictions on access to Lafayette Square.” Significantly, though, it is the Biden administration that must answer for these purported infringements on the plaintiffs’ free speech rights.
In litigating these remaining claims, the plaintiffs must now decide how to handle the inspector general’s report, consistent with Federal Rule of Civil Procedure 11. Rule 11 provides that a lawyer, when “signing, filing, submitting, or later advocating,” a position, is certifying “to the best of [his] knowledge, information, and belief … the factual contentions have evidentiary support or … will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
Given the inspector general’s investigation and report, a lawyer would be hard-pressed to keep arguing many of the complaint’s original allegations. Should the plaintiffs’ attorneys do so, they could be subject to sanctions. But pivoting from the “Trump tear-gassed protesters for a photo op” angle will prove challenging — the corrupt media couldn’t bring themselves to do so.
Will Black Lives Matter be able to? We should know soon when the group responds to the court’s Monday ruling.
