ACLU IN COURT

ACLU Sues D.C. Police Over Journalist’s Inauguration Arrest

Two plaintiffs say police performed unnecessary cavity searches on them in a way that made one plaintiff feel ‘as if he has been raped.’

Just miles from President Donald Trump’s Washington, D.C. inauguration ceremonies, police allegedly subjected protesters and onlookers to baseless arrests, painful clouds of pepper spray, and demeaning cavity searches that felt like rape.

In a new lawsuit from the American Civil Liberties Union, two protesters, a journalist, and a legal observer say D.C. police violated their rights during the Inauguration Day demonstrations, where over 200 people were rounded up and indicted on felony riot charges. Two of the plaintiffs say police molested them and performed unnecessary cavity searches on them, in a way that made one plaintiff feel “as if he has been raped.”

While Trump took the oath of office on January 20, protesters took to the surrounding streets. A small contingent of demonstrators damaged vehicles and business windows. But as the afternoon wore on, a large group of people — many of whom were not protesters at all — found themselves cornered against a police barricade, with no way out.

Police call the crowd-control tactic “kettling.” On Inauguration Day, police herded demonstrators into an increasingly narrow area, “blocking streets so as to force them into a confined area (a “kettle”) on a D.C. street corner,” the lawsuit alleges. Police swept over 200 people into the kettle, many of whom were law-abiding protesters or journalists who had been shepherded into the corner.

“Once police decide to form a kettle, it’s very hard to get out,” plaintiff Shay Horse, an independent photojournalist, told The Daily Beast.

“The cops started using stun grenades, flash bangs, and pepper spray to direct people toward the street corner,” Horse described. “Once people entered this long block, I saw the row of riot cops go on the other side of the block and move up the alleyways, encircling us. They formed something like a doorway that snapped shut at the corner of L and 12.

“I had a bunch of pepper spray in my hair and it started running into my eyes, so I was having a medic wash my eyes out, and I was pretty much blind. I just heard all the cops start clapping and then people started screaming. People were being pushed into the corner. I ran, trying to get away, and that’s when everyone slammed against me.”

Scott Michelman, an ACLU-D.C. attorney representing Horse and his co-plaintiffs, said police appeared to make mass arrests without probable cause.

“Our major concern with the roundup is that it was done indiscriminately,” Michelman told The Daily Beast. “The problem then is when the Metro Police Department decides instead of going after individuals specifically who have broken the law, or whom they suspect of having broken the law, they just round up everyone on the street. It’s even worse when they’ve dispersed the crowd using chemical irritants and then conduct a roundup, which diminishes the chance that there’s any connection between the individuals rounded up and the people for whom police actually have probable cause.”

A spokesperson for D.C.’s Attorney General said the office was reviewing the complaint.

Plaintiff Judah Ariel said he was not a protester. Ariel, a licensed attorney, said he attended the demonstrations as a legal observer, acting as mediator between police and protesters.

“The role of a legal observer is to observe and document protests, in particular any violation of demonstrators’ rights by police,” Ariel told The Daily Beast. “Hopefully through our presence, we help prevent those sorts of violations.”

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Ariel said he arrived at the protests wearing the unofficial legal observer uniform: a “very bright neon green hat that says ‘legal observer,’ clearly across the front,” he said. “Much in the way that the press tries to conspicuously identify themselves as members of the press, the point is to distinguish who legal observers are and to make it easy to do so at a glance.”

But the hat did not protect him when he lingered on the outside of the kettle with other legal observers to document the conditions of those inside.

“There was a certain tension, but nothing usual or different from completely peaceful protests I’d been at,” Ariel said. “And then, really out of the blue, without any warning and without, as far as I could see, any provocation from the crowd, the officers in the intersection just started dousing us with pepper spray, indiscriminately. One was just spraying back and forth across the crowd, hitting whoever happened to be standing there.”

The pepper spray hit Ariel in the face, sending him fleeing until he felt like he was going to faint, the lawsuit alleges.

But people inside of the kettle had nowhere to run. Among those detained were Horse, and protesters Elizabeth Lagesse and Milo Gonzalez. Police kept all three packed in the kettle for hours, during which officers repeatedly used  pepper spray and tear gas over the crowd.

“The pepper spray and tear gas were so thick that at times they created a haze over the kettle and all the individuals detained there,” the lawsuit alleges. “The individuals in the kettle were physically prevented from dispersing.”

During their hours in the kettle, detainees repeatedly asked officers for water or bathroom privileges. Police were less than forgiving, telling one detainee she should “‘shit [her] pants’ to prove she needed a toilet.”

“If you wanted to go to the bathroom, you shouldn’t have gotten arrested,” another officer allegedly told Gonzales after hours in detention.

After hours on the corner, police began placing placing detainees in ziptie handcuffs, so tight the plaintiffs started to bleed, or lost feeling in their hands for days, they allege. At a police station, officers allegedly subjected some of the male detainees to painful strip searches, during which Horse and Gonzalez say officers yanked on their testicles and stuck fingers into their rectums while laughing.

“I felt like they were using molestation and rape as punishment. They used those tactics to inflict pain and misery on people who are supposed to be innocent until proven guilty,” Horse said during a Wednesday press conference. “It felt like they were trying to break me and the others — break us so that even if the charges didn’t stick, that night would be our punishment.”

Michelman said the searches appeared to serve no purpose other than to humiliate the arrestees.

“It’s difficult to avoid the conclusion that the manual rectal probing of our clients and others arrested that day was punitive, was meant to be extrajudicial punishment for participating or being proximate to the demonstrations that day,” Michelman said.

Horse and his fellow plaintiffs say they still feel the day’s physical and emotional toll.

Injuries from the over-tight handcuffs complicate Horse’s everyday tasks like operating his camera, the lawsuit alleges. His experience on Inauguration Day left him with bouts of anxiety, particularly while photographing demonstrations.

“From now on if I go to a demonstration, if police decide to take it nuclear like that, I have to take extra steps to be safe and not wind up in the same position,” Horse said of photographing protests. “The worst part is that is it’s not always a decision I get to make. Often, it’s police making the decision.”

His charges have been dismissed, along with those of six other journalists arrested while covering the inauguration. Lagesse and Gonzalez still face felony charges resulting from their arrests. A superseding indictment for the more than 200 people arrested alongside them cites flimsy evidence for their alleged participation in a riot, including wearing “black or dark colored clothing, gloves, scarves, sunglasses, ski masks, gas masks, goggles.”

Lagesse, who said she was a peaceful protester, brought a bandana and pair of laboratory safety goggles to the demonstration, “having encountered overzealous police officers using pepper spray at prior demonstrations,” the suit reads.

Her clothing choice should not be an admission of guilt, the lawsuit argues.

“It appears that many of the defendants, that is, many of the law-abiding demonstrators that day were charged with being part of a protest and nothing more,” Michelman said. “If I go to a protest and I’m behaving peacefully and somebody else breaks a window, I’m not guilty of anything. Guilt in our system is personal, not associational.”