National guardsman block 16th Street N.W. the day after protestors were tear gassed and abruptly cleared from Lafayette Square in D.C. on June 1, 2020 for former President Donald Trump’s photo op. (AP Photo)

By Deborah Bailey
Special to the AFRO

United States Justice Department lawyers have asked a federal court judge to dismiss a case brought by Black Lives Matter protestors against former President Donald Trump, former Attorney General William Barr and other officials who were involved in removing protestors from Lafayette Square – now Black Lives Matter Plaza – by force one year ago.

On June 1, 2020, more than one thousand peaceful protesters were abruptly cleared from Lafayette Square just minutes before former President Donald Trump walked from the White House to St. John’s Church for a photo op holding a Bible in his hands. Rubber bullets, tear gas and pepper spray were used against non-violent protestors to vacate the area with no warning.

U.S. Justice Department attorneys argued that officials who removed protestors cannot be held liable under the powerful defense of qualified immunity.

“No officer has ever been denied qualified immunity for the purpose of clearing protestors,” argued U.S. Justice Attorney John Martin.

But Scott Michelman, D.C.-ACLU legal director and an attorney for the protestors argued that the defense of qualified immunity does not justify the level of force brought against protestors who lawfully exercised their first amendment right to protest in the wake of George Floyd’s death.

They “could have used live ammunition to clear the park, and nobody would have a claim against that as an assault on their constitutional rights” Michelman said to U.S. District Court Judge, Dabney L. Friedrich.  

Friedrich listened to three hours of testimony from attorneys for Black Lives Matter and other protestors and Former White House Officials, and Federal and local law officers. The motion to dismiss the case was filed in October 2020, therefore the hearing was reserved for arguments from attorneys on the motion to dismiss, rather than the merits of the case itself.

Justice Department attorneys argued that the protestors needed to be cleared because of security concerns for President Trump as he traveled to St. John’s Church.

Judge Friedrich asked lawyers for the protesters “How do I get over the clear national security concern over the president’s safety?”

“The Court needs to look with skepticism at all claims of security,” countered Michelman.

Justice Department lawyers also argued that the case is now moot because Trump is no longer in office.

“The change in administration cuts against the argument for future injury,” said David Cutler of the U.S. Department of Justices’ Civil Division, Torts Branch. Cutler specifically represented former Attorney General William Barr.

In an interview with the {AFRO}, Michelman explained the continued danger in accepting qualified immunity defense arguments derails the case before it gets started.

“It can take a long time for this case to get off the ground because of the issue of qualified immunity. The playing field has been slanted against civil rights groups for a long time because of this,” said Michelman.

Qualified immunity is not a law, but a doctrine established by the U.S. Supreme Court and strengthened in its current form by the court in the 1982 Harlow vs. Fitzgerald decision.

Police officers and federal officials only have to indicate that they were unaware that their actions violated a “clearly established right.”  

Pennsylvania State University Legal Scholar Kit Kinsport writes “Harlow refashioned the definition of qualified immunity in the interest of sparing public officials not only from liability, but also from the costs of litigation.”

A motion to dismiss can be automatically appealed before the case is even heard. So even if Judge Friedrich denies the dismissal and proceeds with the case, U.S. Justice Attorneys for Trump, Barr and the federal and local officers involved in the June 2020 Lafayette Square incident can immediately file an appeal to the U.S. Circuit Court.

“Police brutality is real,” reflected Michelman, musing about the irony of demonstrators being violently removed as they were protesting the violent way George Floyd died.  

“Demonstrating for civil rights threatens to change the balance of power in the United States.”

He said that the D.C. protestors know what they are up against.  “They know this is a long process. We want to keep everyone’s spirits up. We’ll always keep in mind their interests and advise them on how to best make change,” Michelman concluded.  

Judge Friedrich provided no timeline to give the court her decision.