Judge to rule ‘promptly’ on use of force in Rich­mond

ACLU says po­lice vi­o­lated the rights of demon­stra­tors

Richmond Times-Dispatch - - FRONT PAGE - BY FRANK GREEN Rich­mond Times-Dis­patch

A Rich­mond judge is con­sid­er­ing an emer­gency re­quest to stop city and state po­lice from us­ing chem­i­cal ir­ri­tants, ex­plo­sives and sim­i­lar de­vices to dis­perse peace­ful pro­test­ers, after hear­ing ar­gu­ments Mon­day from at­tor­neys on both sides.

Lawyers for the ACLU of Vir­ginia on Mon­day told Cir­cuit Judge Bev­erly W. Snukals that city and state po­lice used an overly broad in­ter­pre­ta­tion of state law to em­ploy tear gas and other force­ful means to dis­perse a peace­ful teach-in demon­stra­tion out­side City Hall on the night of June 22-23.

The ACLU filed a com­plaint last Fri­day on be­half of youth or­ga­niz­ers who are part of the Vir­ginia Stu­dent Power Net­work.

They con­tend that un­der the law, a protest can only be an un­law­ful assem­bly if there are “acts of un­law­ful force or vi­o­lence,” which they ar­gue were not present that night at City Hall. As a re­sult, they say, the po­lice vi­o­lated the pro­test­ers’ con­sti­tu­tional rights to speech, assem­bly and protest.

An­drew Chang, a co­coun­sel for the ACLU, told Snukals that Rich­mond Mayor Le­var Stoney had

apol­o­gized to pro­test­ers for vi­o­lat­ing their rights after an ear­lier in­ci­dent in which tear gas was used.

Lawyers with the Vir­ginia At­tor­ney Gen­eral’s Of­fice and the city dis­agreed with the ACLU on Mon­day.

Richard Hill, se­nior as­sis­tant city at­tor­ney, told the judge that the emer­gency tem­po­rary in­junc­tion the plain­tiffs are seek­ing is “an ex­tra­or­di­nary rem­edy ... against hy­po­thet­i­cal, spec­u­la­tive fu­ture ac­tions.”

If ap­proved, the re­quest would mi­cro­man­age po­lice and tie their hands while at­tempt­ing to per­form their jobs and pro­tect pub­lic safety, Hill ar­gued.

Hill, along with Blaire

O’Brien and Erin McNeill of the Vir­ginia At­tor­ney Gen­eral’s Of­fice, con­tend that block­ing a road­way — which is what hap­pened that night at City Hall — clearly con­sti­tuted the use of force un­der the state un­law­ful assem­bly law.

O’Brien told Snukals that the pro­test­ers are not fac­ing a “Hob­son’s choice” and can still peace­fully as­sem­ble, speak and protest. She said there have been “any num­ber” of peace­ful protests in the city re­cently in which the po­lice did not in­ter­fere.

“We live in dy­namic times,” said O’Brien. She asked Snukals not to pre­clude law en­force­ment of­fi­cials from tak­ing le­gal ac­tions when nec­es­sary.

In declar­ing the teach-in at City Hall an un­law­ful assem­bly last week, Rich­mond po­lice said on Twit­ter that it was due to “con­di­tions of ac­tiv­ity such as sit-ins, sit-downs, block­ing traf­fic, block­ing en­trances or ex­its of build­ings that im­pact pub­lic safety or in­fra­struc­ture.”

In court pa­pers the ACLU ar­gues that the “con­di­tions of ac­tiv­ity” cited by the po­lice are not even close to be­ing the “acts of un­law­ful force or vi­o­lence” re­quired for an un­law­ful assem­bly.

Sim­i­lar re­quests have been ap­proved by courts in ci­ties such as Den­ver, Seat­tle, Oak­land and Char­lotte, said the ACLU.

The in­junc­tion is be­ing sought, the ACLU said, to pro­tect the pro­test­ers’ rights to peace­ably as­sem­ble and protest with­out be­ing sub­jected to the risk of se­ri­ous in­jury or hav­ing their rights de­nied.

The ACLU is ask­ing Snukals to bar the use of “chem­i­cal mu­ni­tions, ir­ri­tants, ex­plo­sives, stun weapons, and phys­i­calimpact weapons against peace­ful pro­test­ers.”

They also want it or­dered that such force only be used if there is clear and present dan­ger of im­mi­nent vi­o­lent con­duct by three or more peo­ple; the vi­o­lence can­not be con­trolled by re­mov­ing in­di­vid­ual per­pe­tra­tors; al­ter­na­tive con­trol mea­sures have been ex­hausted; and it has been de­ter­mined that the use of chem­i­cal agents and other means is the only way to pro­tect lives.

The ACLU also ar­gues that there must be clear, loud and con­tin­u­ous or­ders is­sued prior to the use of ir­ri­tants; ex­its must be avail­able for the pro­test­ers; and dis­per­sal or­ders must be rea­son­ably lim­ited in time and ge­o­graphic area.

Po­lice and pro­test­ers re­ported in­juries from last week’s use of tear gas and other pro­jec­tiles. Po­lice say they have been hit with rocks, bricks and other ob­jects.

The sit-in out­side City Hall a week ago was at­tended by 150 peo­ple who in­tended to stay overnight and teach those in at­ten­dance about po­lice vi­o­lence and com­mu­nity ad­vo­cacy.

At around 12:42 a.m., po­lice de­clared an un­law­ful assem­bly and fired tear gas, flash bangs and other pro­jec­tiles and ar­rested a dozen peo­ple. The use of tear gas led to calls from two City Coun­cil mem­bers and a group of doc­tors for po­lice to stop us­ing it.

At the end of Mon­day’s brief hear­ing, Snukals said she would reach a de­ci­sion “promptly.”

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