The city agreed to pay $605,000 to six defendants represented by the ACLU and nearly $1 million to about 200 others falsely arrested and held up to 16 hours without food, water or restrooms in a class-action case brought by Light, according to court filings.
In the ACLU case, in which photojournalist Shay Horse is the lead plaintiff, police agreed to memorialize changes to mass-arrest policies, including assigning each detainee an identification number that will go on a wrist band, a bag with their personal property and a photo of both the arrestee and officer.
Police also agreed to record searches from three angles with body-worn cameras when practicable and notify officers of standing police policies in First Amendment-protected mass events such as presidential inaugurations. D.C. police will also restrict the use of stingballs — explosive devices that release smoke, rubber pellets and chemical irritant within a radius of about 50 feet — to rolling them on the ground instead of throwing them in the air except under extreme circumstances, according to settlement papers awaiting approval by U.S. District Judge Amy Berman Jackson of Washington.
“MPD’s unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police,” ACLU-DC Legal Director Scott Michelman said in a statement announcing the settlement.
“It speaks volumes that the District has chosen to settle rather than defend MPD’s obviously unconstitutional actions in court,” Light said in the statement.
Mayor Muriel E. Bowser (D), the office of Attorney General Karl A. Racine (D) and D.C. police declined to comment on the settlement or its potential impact on policing future demonstrations, with Bowser saying at a news conference only, “We settled the matter.”
The D.C. attorney general’s office agreed in the proposal not to oppose motions to expunge arrest records of plaintiffs in both suits, and asserted its expectation to be included in any future mass demonstration law enforcement joint command.
Then-D.C. Police Chief Peter Newsham, who left the department in January to run the force in Prince William County, Va., defended officers’ conduct and said he had urged District officials not to settle.
“For those folks to get a financial windfall after legitimately getting arrested says something about our civil litigation in the courts,” Newsham said in an interview.
Newsham said he remains confident officers “had probable cause” and arrested people involved in destruction.
“The folks that were arrested were operating as a unit,” Newsham said, recounting allegations that some individuals exchanged clothes to try to evade detection and caused more than $100,000 in damage over a 16-square-block area. “By all accounts, it was a coordinated effort to come to Washington, D.C., and to destroy property.”
Two D.C. police officers are also named as defendants in both ACLU cases from 2017 and 2020, the civil liberties group said.
D.C. police in those cases apologized and abandoned “trap and detain” tactics in which officers surrounded and arrested large groups of people close to demonstrations, including some individuals who had their wrists and ankles bound together and were detained as long as 24 hours.
Police adopted new training methods and procedures to deliver warnings, establish individualized probable cause and provide for escape avenues after the Pershing Park settlement.
Payments in Monday’s proposed class-action settlement are mainly capped at $5,680 and will vary depending on how long individuals were held.
ACLU plaintiffs Gwen Frisbie-Fulton and her then 10-year-old son traveled from North Carolina to peacefully protest.
“We ended up fleeing through a cloud of pepper spray for doing nothing but chanting and holding signs,” she said in a statement. “The real lesson in how our Constitution works had to be this lawsuit, showing that there can be consequences when law enforcement abuses its power.”
Michelman and Light acknowledged the challenge police face differentiating between rioters and demonstrators in a mass protest but said the lawlessness of a few cannot justify unconstitutional mass arrests or a crackdown on free speech on many.
Michelman also cited the Jan. 6 Capitol breach, in which U.S. Capitol Police and supporting agencies made almost no arrests after being overwhelmed by thousands of Trump supporters who mobbed the building and disrupted Congress’s formal acceptance of the results of the presidential election that day.
“The contrast between the over-policing of constitutionally protected speech on Inauguration Day 2017 and the under-policing of a violent invasion of the U.S. Capitol earlier this year starkly demonstrates law enforcement’s institutional biases,” Michelman asserted. “A diverse group of protesters with a left-wing message was subjected to a mass arrest without cause, whereas armed White insurrectionists with a right-wing message stormed Congress, and the police let them walk away.”
D.C. police, who assumed command of the response to the Capitol riot, have said they were not prepared to make mass arrests inside the Capitol, that it would have taken too long and that their priority was to search, clear and secure the building so Congress could complete its election work.
Michael Brice-Saddler contributed to this report.