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Legally Speaking: Breaking down ACLU’s lawsuit against Phoenix police

Smoke billows after Phoenix police used tear gas outside the Phoenix Convention Center, Tuesday, Aug. 22, 2017, in Phoenix. Protests were held against President Donald Trump as he hosted a rally inside the convention center. (AP Photo/Matt York)

The ACLU has filed a class action lawsuit against the Phoenix Police Department alleging that excessive force was used against protesters during a visit from President Donald Trump back in August 2017.

According to the plaintiffs, during this rally Phoenix police “ fired harmful pepper spray, gas, pepper bullets, and flash-bang canisters into the assembled crowd, which included children, elderly people, disabled people and pregnant women.” The complaint alleges this was an inappropriate and excessive use of force.

Along with the complaint the ACLU has asked the court to issue a temporary restraining order (TRO) ordering:

Defendant shall not disperse anti-Trump protesters or forcefully interfere with or disrupt their exercise of first Amendment rights to speak and protest, and to associate with others with similar views unless: 

(1) there is a valid and documented justification for so doing such as a threat of imminent serious harms to others because of the actions of numerous protesters; if such actions are done by a small number of protesters they may be isolated and the protest continued; and 

(2) the assembly has been publicly declared to be unlawful on valid and documented grounds; and 

(3) adequate audible warnings have been given in English and Spanish about how to disperse and where the protest can re-convene; and 

(4) adequate audible warnings are given about the planned use of force… and 

Defendants shall not use projectile or chemical weapons (inappropriately).”

This case is of great importance because it deals not only with public safety, but also with the Constitutional rights to associate, speak and protest. In addition, there is likely to be another Trump rally in the near future that would bring Trump supporters and protesters face to face.

Let’s talk procedure. Sometimes when a case is filed the plaintiff will ask the court to issue a TRO to maintain the status quo or to keep the defendant from doing something. In this case, the plaintiffs are asking the court order the police to not use excessive force. Police are not allowed to use excessive force, if it is “excessive” then it is too much; that is why it is dubbed “excessive.” Police can use force as long as it is reasonable under the circumstances.

The law allows force to be used to protect oneself or others in immediate danger of harm. However, the level of force that can be used has to be reasonable under the circumstances. If someone is trying to fight you with their fists, pulling out a gun and shooting them would be considered excessive force. (Granted, there are always exceptions.) This is the same for police officers, they are only allowed to use the level of force necessary to do their jobs.

A court will issue a TRO if the plaintiff convinces the judge that immediate and irreparable injury or damage will likely result if a TRO is not immediately issued. In almost every case a TRO is issued before the court even hears the defendant’s side of things. That is why it is temporary. If issued, the TRO stays in place until the court holds a preliminary injunction hearing where both sides have the opportunity to explain their side to the judge. If plaintiff prevails at this hearing then the TRO turns into a preliminary injunction that typically lasts until a trial is had. If the defendant prevails then the TRO is either cancelled or modified.

Can the court dictate ahead of time when and what type of force officers can use at a future event that may or may not occur? It can.

Will the police adhere to what the court says? Maybe, maybe not.

Police are trained to protect and act quickly in heated and tumultuous situations. They often have to make quick decisions with little information. Regardless of what a judge orders, if an officer believes a certain level of force is necessary to do their job, chances are they will use that level and defend their actions later.

It should be noted that in this case the ACLU is not asking the court to order that no force be used. It is asking the court to order the officers only use the level of force that is necessary and after warnings are given (see above).

Legally speaking, will the ACLU win its TRO? Maybe, maybe not. The ACLU’s motion for a TRO might be strategy. It could be a way to get the public’s attention, to point out that something is wrong, to bring attention to the past and probable future behavior of police in these types of situations and the subsequent action or inaction of city politicians. Regardless of whether the court issues the TRO or not, the ACLU has given notice to the police that it is watching and will not hesitate to bring another lawsuit. It’s point has been made and the warning has been given.