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“What’s at stake is whether people can sue for violations of their constitutional rights in one of the nation’s most important public forums: Lafayette Square, right in front of the White House,” Scott Michelman, legal director for ACLU of the District of Columbia, said after the arguments on Tuesday. “And whether federal officials can use brutality with impunity and face no consequences in court.”
U.S. District Judge Dabney L. Friedrich — a 2017 Trump appointee who previously served as a federal prosecutor, Senate Judiciary Committee aide, and associate counsel in the George W. Bush White House — had dismissed most claims filed by the ACLU of DC, Black Lives Matter and others in lawsuits regarding this incident, ruling that federal defendants such as then-Attorney General William P. Barr and then-acting Park Police chief Gregory T. Monahan are immune from civil suits and could not be sued for damages.
In addition to the ACLU, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the Lawyers’ Committee for Civil Rights Under Law, and the law firm of Arnold & Porter are among those who brought the lawsuit on behalf of Black Lives Matter DC and the eight protesters.
The plaintiffs’ attorneys are asking the U.S. Court of Appeals for the District of Columbia Circuit to revive dismissed claims and argued that shielding federal officials from lawsuits where plaintiffs are seeking monetary compensation for constitutional rights violations is an incorrect interpretation of law and court precedent.
Central to the arguments Tuesday morning was interpretations of a 1971 Supreme Court ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which recognized that federal officers can be sued in some instances, even if such lawsuits had not been explicitly authorized by Congress. But since then, the Supreme Court has narrowed the path for lawsuits against federal officials.
In 2017, the court said senior U.S. government officials cannot be held liable for the alleged unconstitutional treatment of noncitizens detained after 9/11. In 2020, the court’s conservative majority prevailed in a 5 to 4 ruling that the family of a Mexican teenager killed by a Border Patrol agent in a cross-border shooting could not sue in U.S. courts. And in a 2022 6-3 decision, the court’s conservative majority reinforced protections for government officials who are generally immune from civil lawsuits when it is determined they have acted in good faith while carrying out their duties.
However, attorneys for the plaintiffs argued that in passing the Westfall Act — legislation enacted in 1988 that governs how and when federal employees can be sued — Congress preserved the rights of individuals to move forward with claims that involve constitutional violations, such as First Amendment violations.
At the time, plaintiffs’ attorneys argued that one of the most prominent precedents on that subject was Dellums v. Powell, a 1977 D.C. Circuit Court case, in which the ACLU won its arguments that police unlawfully arrested more than 1,200 people outside the U.S. Capitol during a Vietnam War protest.
Justice Department attorney Brian Springer argued Tuesday that there were clearly “national security implications” in the decision to clear protesters outside the White House.
“There was a very large crowd of protesters directly outside the White House,” Springer told the judges on Tuesday. “There was a decision to disperse them right before the President made an appearance and walked across this park.”
But attorneys representing protesters who were attacked disagree.
“What the district court did here was established a categorical rule that any and all claims arising out of Lafayette Park no matter the violation, no matter the facts, implicate national security and thus are barred … that is incorrect,” Lee Crain, an attorney with Gibson, Dunn, & Crutcher, told judges. Later, he added: “For 50 years, this court has said Lafayette Park is a unique site of public expression, a unique public forum.”
A 2021 report by the Interior Department’s inspector general found that park police did not lead law enforcement officials into the crowd of protesters to clear the way for Trump’s photo op. Instead, the report said, it was part of preparations to clear the protesters and erect a fence that began two days before the park clearing.
During the oral arguments, Judge Robert L. Wilkins presented Springer with a hypothetical as he sought to understand the legal implications of a ruling in favor of the government.
He asked Springer to imagine two groups of protesters, one in favor of then-President Trump and the other supporting the Black Lives Matter movement. Then, he asked, what if the complaint was that Trump and Barr moved the racial justice protesters, but allowed Trump supporters to stay?
“Does that implicate national security for the President to say ‘move one group whose message we don’t like, but leave the other group there, leave them alone,’” Wilkins asked. “Is that an appropriate invocation of national security?”
