Detroit Will Breathe v. Detroit, City of
Not reported (2020)
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Rule of Law:
A court may issue a temporary restraining order against a municipality and its police department, enjoining specific tactics, if protestors demonstrate a likelihood of success on the merits of their First and Fourth Amendment claims, irreparable injury, a favorable balance of equities, and that the injunction serves the public interest.
Facts:
- On May 29, 2020, protests began in Detroit in response to the death of George Floyd, and daily demonstrations continued throughout the summer.
- From May 29 to June 2, July 10, and August 22, 2020, Detroit police allegedly responded to peaceful demonstrations with tactics including beatings, tear gas, pepper spray, rubber bullets, sound cannons, flash grenades, chokeholds, and mass arrests without probable cause.
- On August 22, 2020, video footage showed Detroit police officers throwing tear gas canisters into a crowd of protestors who were chanting, then advancing, grabbing, shoving, and using batons to beat people, including individuals running away.
- Multiple demonstrators alleged that after being detained, police officers handcuffed them with zip ties fastened so tightly that their hands became numb, turned blue, and caused physical injuries.
- Individual police officers allegedly made statements to protestors such as 'stop protesting or we will f**k you up,' and told arrestees that officers were 'just following orders.'
- City officials, including the Police Chief, publicly praised police conduct following incidents of alleged force, while the Mayor also stated support for peaceful protests.
Procedural Posture:
- Plaintiffs Detroit Will Breathe and 14 individuals filed a lawsuit against the City of Detroit, Mayor Duggan, Police Chief James Craig, and other police officers in the U.S. District Court for the Eastern District of Michigan, Southern Division.
- Plaintiffs filed a motion for a temporary restraining order (TRO) seeking to enjoin the City of Detroit and its Police Department from using certain tactics against demonstrators and bystanders.
- The District Court conducted two telephonic status conferences with counsel for the served parties (City of Detroit, Mayor Duggan, and Police Chief Craig), who were unable to reach a mutually agreeable resolution to the motion.
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Issue:
Should a temporary restraining order be issued to prevent a city's police department from using certain tactics, such as chemical agents, striking weapons, and tight restraints, against individuals engaging in protest, based on alleged First and Fourth Amendment violations?
Opinions:
Majority - Laurie J. Michelson
Yes, a temporary restraining order should be issued in part, because Plaintiffs demonstrated a likelihood of success on their First and Fourth Amendment claims, irreparable injury, a favorable balance of equities, and that the injunction serves the public interest. The Court first found a likelihood of success on the merits for Plaintiffs' Fourth Amendment claims, citing verified complaints, affidavits, and video evidence showing police using batons, pepper spray, tear gas, and physical force against peaceful protestors, as well as excessively tight zip ties, which violate the objective reasonableness standard established in Graham v. Connor and Burchett v. Kiefer. Second, the Court found a likelihood of success on Plaintiffs' First Amendment retaliation claims, noting that the police actions (such as indiscriminate use of force and explicit threats) would deter an ordinary person from protesting and were motivated by protected speech, consistent with Maben v. Thelen. Third, the Court found a likelihood of success on municipal liability under Monell, inferring a policy or custom from unprovoked violence, lack of condemnation by city officials, and officer statements about 'following orders.' Regarding the remaining injunctive factors, the Court determined that the loss of First Amendment freedoms constitutes irreparable injury (Elrod v. Burns), that the balance of equities favors Plaintiffs as the requested relief still allows police to use reasonable force when necessary, and that preventing constitutional violations is always in the public interest (Connection Distrib. Co. v. Reno). The Court granted the TRO in part for 14 days, enjoining the use of striking weapons, chemical agents, and rubber bullets against peaceful, non-threatening protestors, deploying chemical agents or sound cannons without warning, using chokeholds or ramming with vehicles, tightening restraints to cause injury, and mass arrests without probable cause.
Analysis:
This case significantly reinforces judicial protection of First and Fourth Amendment rights during protests, emphasizing that law enforcement's use of force must be objectively reasonable and non-retaliatory, even in dynamic situations. The court's willingness to infer a likelihood of municipal liability based on circumstantial evidence like unprovoked violence, lack of official condemnation, and officer statements of 'following orders' provides an important avenue for accountability against systemic patterns of police misconduct. The injunction highlights the judiciary's role in delineating permissible police tactics during civil demonstrations and underscores the critical impact of video evidence in establishing constitutional violations.
