Was January 20 Action in the Streets First Amendment Activity or a Criminal Riot? Makes A Difference in Access to Records, Says New Lawsuit

UPDATED: Peter Newsham was confirmed by the D.C. Council May 2 as the next D.C. police chief. 

Critics of police actions during Washington, D.C., protests in January charged the Metropolitan Police Department  (MPD) in a new lawsuit filed Martch 23, 2017, with “willful disobedience” for withholding reports. Reports, they say, that could shed light on what happened in the streets on Inauguration Day when six police were injured, cars and stores were damaged and over 200 were arrested -- over 60 initially charged with felony rioting.

The D.C. Council wrote into law new requirements effective over a decade ago for police treatment of First Amendment activities, including reports after any use of riot gear and heavy pepper spray. Legislators acted after the Council Judiciary Committee spent months investigating the mass arrest of 400 in Pershing Park in 2002—arrests the courts later said were unlawful and that cost the District millions in damages.  

The 2002 arrests were ordered by then-Assistant Chief Peter Newsham (now interim chief) with concurrence of then-Chief Charles Ramsey.  The Council held a hearing Friday (24) on the mayor’s nomination of Newsham to be the permanent chief. He has acknowledged the earlier treatment of protesters was wrong, saying “I made a mistake.” 

Activists argue that the mass arrests during the Trump Inauguration protests showed the police again acted indiscriminately, failing to distinguish the majority of peaceful marchers, reporters and legal observers from the few who broke the law, using unnecessary riot gear and chemical spray and rounding up many without lawful cause.

Their lawsuit says information in the reports required by law to be publicly available will shed light on police conduct and also “bears on [Newsham’s] fitness to be chief.” They called on the D.C. Council to "refuse to hold a vote on the nomination until these records are released and until there is a full investigation into police actions on January 20th."

Recounting their request and the MPD response, the lawsuit, filed by the Partnership for Civil Justice Fund that earlier represented many arrested in Pershing Park, states the reports are being withheld because the Metropolitan Police Department says it is “not aware of any riot gear or tactics employed at any First Amendment assembly on January 20.”

Instead, the MPD calls the situation where many were arrested a “criminal riot.” 

This may be a page out of the MPD playbook from 12 years ago. Rioting charges were brought after a mass arrest of many nonviolent demonstrators following scattered window-breaking by a few marchers moving through the Adams Morgan neighborhood on the evening of the second inauguration of George W. Bush. The charges were never brought to trial and the District paid a quarter-million-dollar settlement without agreeing demonstrators were falsely arrested. But the civil case challenging the arrests led to a D.C. Circuit Court of Appeals decision that if the evidence showed a riot in progress, police could be justified arresting a large group involved without particularized evidence of lawbreaking.  The settlement meant the question what evidence of a riot is enough was never tested at trial.

In the present case, the MPD handled the records request as if filed seeking ordinary police records under the D.C. Freedom of Information Act. They rejecting it citing the exemption for investigative records whose release could interfere with enforcement proceedings. (In a sign that cases are still being developed, defense attorneys have told the Post some of those charged have been notified by Facebook of subpoenas from the U.S. Attorney here seeking access to postings around January 20 and lists of friends.)

The courts will have to sort out who’s right – the requesters seeking reports (required to be written promptly and made public on request) on police conduct at a First Amendment assembly, or the District police who refer to a riot that day and say they can withhold documents pertaining to investigation of those charged. 

Council Member Mary Cheh, a George Washington University constitutional law professor, served as Special Counsel to the Council Judiciary Committee for the investigation of the Pershing Park arrests and helped write the law that followed. She told the Washington Post last week there were “many, many, many mistakes” made by the police at Pershing Park and “a lot of blame to go around.” But, she said that the department had “materially changed its tactics” since then and that she supported Newsham. Former Chief Cathy Lanier also testified in favor of his nomination.

The case is Partnership for Civil Justice Fund v. District of Columbia, No. 2017 CA 1931.  The initial complaint in the case is linked below. The government has not yet responded. A scheduling conference is set for June 23 at 9:30 in Superior Court Courtroom 519 before Judge John M. Campbell.