A panel of the Ninth Circuit Court of Appeals reversed a ruling by an Obama-appointed judge which found that the Phoenix Police Department (PPD) used “excessive force” dealing with violent protesters outside of a Donald Trump rally in 2017. The court’s opinion, issued last Thursday, found that U.S. District Court Judge John J. Tuchi incorrectly applied Fourth Amendment law to analyze claims from three protesters who were hit with projectiles.
Trump held a rally at the Phoenix Convention Center on August 22, 2017. A “Free Speech Zone” was set up for protesters, but the PPD was forced to intervene when they became violent. The opinion said the police used “tear gas, other chemical irritants, and flash-bang grenades” to deter the rioters.
After the protest, the radical leftist groups Poder in Action and Puente, which participated in the protest, along with several protesters, sued the City of Phoenix, accusing the police of excessive force in violation of the Fourth Amendment and the Fourteenth Amendment’s Due Process Clause, using violence to deprive the protesters of their free speech under the First Amendment, and viewpoint-discriminating against the protesters in violation of the Fourteenth Amendment’s Equal Protection Clause. They were represented by several prominent national law firms and the ACLU of Arizona.
Tuchi (pictured above) dismissed all of their claims except the Fourth Amendment excessive force charge by the three protesters hit by projectiles.
The appeals court disagreed with him, reasoning, “There was no ‘seizure’ of the class members within the meaning of the Fourth Amendment because the record showed that defendants’ use of airborne and auditory irritants was not objectively aimed at restraining the class members, even temporarily.” The panel found that “the officers were entitled to qualified immunity because they acted reasonably under the circumstances or did not violate clearly established law.”
The panel noted that the police officers assigned to the protest had significant previous experience dealing with protesters. The justices said the violence began when protesters began throwing water bottles at police and attendees waiting in line.
The panel said the police first responded by using a loudspeaker to tell the protesters not to engage in violence. However, they observed “Antifa members … acting aggressively and shouting profanities,” and “observed suspected Antifa members shove a protester who had told them to stop throwing objects.” When the police attempted to speak to them, the rioters ignored them.
When Trump’s motorcade left the rally, rioters were seen throwing water bottles down from a parking garage at the crowds in the streets. Officers observed suspected Antifa members “hooking their flags and banners to the fencing,” which they believed was in order to breach the fence to access a prohibited area designated for the police. When the rioters began pushing on the fence, the officers fired pepper balls at them.
The police paused to see if the violence would subside, but it did not, “the activity instead escalated, with individuals in the Free Speech Zone throwing rocks, water bottles, and other objects at an increasing rate.” As the motorcade left, “an individual in the Free Speech Zone threw a canister into the Public Safety Zone that began emitting an unknown gas.”
The opinion said the officers responded by putting on tear gas masks and deploying smoke canisters. However, it was ineffective, since “many in the crowd continued to throw objects back at police; indeed, ‘the frequency of items being thrown at officers significantly increased,’” including launching a “pyrotechnical munition.”
The police used tear gas and flash-bang grenades to respond, the opinion said. They entered the Free Speech Zone and “begin clearing the remaining individuals in the area using ‘targeted munitions like pepper balls when necessary to drive back any threatening or aggressive individuals.’” Using a public address system, the police announced that the protest was unlawful. The police arrested five people, who did not become plaintiffs in the lawsuit.
