December Pending Litigation_blog_12-2021

At least 60 journalists have sued police following arrests, assaults at protests

December 16, 2021

Independent journalist Sarah Belle Lin pursued every avenue available to get an explanation after a law enforcement officer shot her with a crowd-control munition while she was covering a protest in May 2020 in Oakland, California.

She said she filed Public Record Act requests with as many local law enforcement agencies as she could identify as being at the scene.

“It felt like my search for answers came up really empty-handed,” Lin told the U.S. Press Freedom Tracker. “It was clear at that point that I’d have to elevate the matter if I were to feel there was some sort of accountability for those who had decided to pull the trigger on me.”

In February 2021, Lin resorted to filing a civil lawsuit against the City of Richmond, its police department and 25 of its officers to get answers about why she had been shot and demand damages to off-set her physical therapy for the pain she still feels in her right leg. In November — 18 months after the incident — Lin reached a private settlement agreement with the city.

Since its 2017 launch, the Tracker has documented 68 journalists and two outlets that are plaintiffs in lawsuits against public officials or law enforcement. Nearly 90% of those plaintiffs filed in response to police actions at protests.

Lawsuits can provide a path for accountability, but for journalists like Lin who’ve suffered First Amendment violations while reporting, it’s a long road with mixed success.

By the numbers:

  • 70 media plaintiffs are part of 45 lawsuits across 24 cities;
  • 61 plaintiffs — or 87% — filed or joined suits following assaults or arrests at protests;
  • The majority of those plaintiffs — 80% — filed following aggressions at Black Lives Matter protests within the last 18 months.

Policing the media at protests

For independent journalist Shay Horse, it took more than four years after being arrested and charged with felony rioting to reach a legal settlement with the District of Columbia and law enforcement.

Horse was a plaintiff in a class-action lawsuit filed by the American Civil Liberties Union of the District of Columbia after more than 200 individuals were arrested during protests at the 2017 inauguration of Donald Trump. The April 2021 settlement agreement included a payment of $605,000 (approximately $100,000 per plaintiff) and policy changes around mass arrests and officer training on the First Amendment Assemblies Act.

Two independent journalists, Alexei Wood and Aaron Cantú, were, like Horse, charged with felonies on Jan. 20, 2017, but the pair didn’t file a lawsuit against the district and its police department until three years later, in January 2020.

Wood told the Tracker his arrest and subsequent trial — where he was found not guilty on seven felony charges — completely derailed his life: He stopped practicing journalism after his arrest and suffers from post-traumatic stress disorder. Wood said he and Cantú held off filing their suit until all of the criminal cases from the day’s demonstrations were settled so that their testimony could not be used by prosecutors.

“When my lawyer filed the complaint in the civil lawsuit, I felt like that was the end of my hole, and I was getting on the path back toward empowerment,” Wood said. “I really want to speak my piece to them directly.”

The lawsuit is still pending, and has a hearing scheduled for January 2022.

Seven other journalists assaulted or arrested while covering protests in 2017 have watched their cases languish in court for years.

Protests erupted in St. Louis, Missouri, in September 2017 after a former police officer was acquitted in the fatal 2011 shooting of Anthony Lamar Smith, a Black man. The St. Louis Post-Dispatch reported that two days after the verdict was returned, police kettled approximately 100 individuals, referring to a maneuver in which officers surround a crowd and typically conduct mass arrests. At least six journalists were among those arrested, and multiple were beaten by police.

One of the suits was just settled on Nov. 19, 2021, the Post-Dispatch reported, with the city agreeing to pay deceased filmmaker Drew Burbridge $115,000 to settle a suit he and his wife, Jennifer Burbridge, filed shortly after the incident. Jennifer’s claims were dismissed and the city did not admit any liability.

In the Tracker: Five other lawsuits filed by journalists against the City of St. Louis and its police department following the September 2017 protests are still pending:

  • Fareed Alston was assaulted, arrested and his equipment damaged by police. Alston was charged with failure to disperse, which was subsequently dismissed.
  • Heather De Mian, an independent livestreamer who uses a wheelchair, was targeted with pepper sprayed by law enforcement.
  • Mike Faulk was knocked to the ground and pepper sprayed while being arrested. An officer used a foot to push his head into the pavement and officers seized his phone and bicycle, the latter of which was never returned.
  • Mark Gullet was arrested and deliberately pepper sprayed in the face after an officer had already placed him in zip cuffs.
  • Demetrius Thomas was beaten with a baton, arrested, his camera seized and his drone damaged.

Covering a year of demonstrations

In a single year — from George Floyd’s death during an arrest on May 25, 2020, to May 25, 2021 — journalists were assaulted more than 600 times and arrested 155 times while reporting from Black Lives Matter protests across the country. Press freedom violations from that period account for 62% of the litigation documented by the Tracker.

The year of protests for social justice and against police brutality began and largely concluded in Minnesota, sparked by Floyd’s death in Minneapolis in 2020 and bookended by protests following the police shooting of Daunte Wright in the nearby suburb of Brooklyn Center nearly a year later. More than 100 journalists were assaulted, arrested or had their equipment damaged in the state alone.

In June 2020, the ACLU of Minnesota filed a class-action suit representing eight journalists and the largest media labor union in the country, the Communications Workers of America. In an amended complaint reviewed by the Tracker, the ACLU argues, “The protests were marked by an extraordinary escalation of unlawful force deliberately targeting reporters.”

“The purpose was clear: punish the press and stop the scrutiny,” the complaint states.

Though the suit is ongoing, it has already brought dividends. On Oct. 28, U.S. District Judge Wilhelmina Wright granted a preliminary injunction barring Minnesota law enforcement from using force against journalists documenting demonstrations, the Minneapolis Star Tribune reported. The restraint will remain in place until the case is settled in the court system, which may take years.

Paths to accountability

Seven of the more than two dozen suits filed since June 2020 and followed by the Tracker have already been settled, with known payments totaling $146,000 and at least one involving changes to police procedures.

The vast majority of lawsuits are settled out of court without ever going to trial, according to the American Bar Association. Mickey Osterreicher, general counsel for the National Press Photographers Association, told the Tracker that settlements are often preferred because it allows both parties more control over the conditions and resolves the case more quickly.

In cases where policy changes and training are part of the agreement, he said, the settlement can specify whether someone monitors compliance, how long the issue remains under the jurisdiction of the court and whether there are any sanctions for violating the agreement.

The agreement reached between plaintiffs represented by the ACLU of Nebraska and the City of Omaha is the only disclosed settlement from recent protests that involves concrete policy changes around mass arrests and on the use of chemical and crowd-control munitions at protests.

Freelance journalist Melanie Buer was among the plaintiffs, all of whom were detained in a police kettle during a July 2020 protest. Buer was shoved and detained for more than two hours by officers who doubted the legitimacy of her press badge.

In exchange for the plaintiffs waiving any claim for monetary damages, the Omaha Police Department agreed to tighten restrictions on the use of chemical and crowd-control weapons and produce an annual report on their use; the city in turn agreed to rewrite the two ordinances — obstructing public roadways and refusal to disperse — used to justify the mass arrests. The settlement has a two-year term and states that the city and police department bear the burden of demonstrating their compliance with the agreement.

Buer told the Tracker she was grateful to be part of the suit and believed her participation lent legitimacy to the complaint.

“When you have so little in your toolbox to hold authorities or institutions accountable, sometimes it is useful to use the legal system in this way,” Buer said.

Osterreicher said that while the goal is policy change that prevents similar abuses from happening in the future, more often than not the cases are resolved through a financial settlement.

“State actors are more than willing to throw money at things and try to get people to go away than to actually be open to effectuating real change in terms of equitable relief,” Osterreicher said.

Matt Topic, a media law attorney based in Chicago, told the Tracker that in some cases, monetary settlements can actually be equally if not more effective than agreements that focus on injunctive relief. Topic represented two journalists assaulted during 2020 protests in the city, both of whom reached monetary settlements with the city.

“You can do an injunction that is supposed to stop [the police] from doing something, but they already disregard their legal obligations,” Topic said. “Sometimes the more effective approach is to bury the police department in individual plaintiff damages cases for every person who was abused at a protest, so that then you have a better chance of incentivizing them to actually reign in some of these police officers at these protests.”

Eugene Weekly reporter Henry Houston filed a lawsuit against the city shortly after he was targeted with a tear gas canister at a protest in Eugene, Oregon, on May 31, 2020. He reached a settlement for $45,000, though he had hoped he could “force some policy changes,” Houston told the Tracker at the time.

“I took [the money] because although it’s not concrete change, it could influence change just as a speeding ticket could change driver behavior,” Houston said.

Cases to watch: At least 29 lawsuits concerning press freedom violations documented by the Tracker are currently pending. Some to watch as they move through the courts or toward settlements:

  • ACLU, multiple cities: The ACLU has pending lawsuits against law enforcement agencies in Minnesota, DC and Portland;
  • Keith Boykin: The freelance journalist filed a lawsuit after he was arrested while covering protests in New York City in May 2020. The city has filed a motion for judgment that could result in the dismissal of all or some of Boykin’s claims.
  • Mason Lake: After he was struck in the arm by a projectile during demonstrations in Portland in May 2020, the independent journalist filed a suit against the City of Portland which is scheduled to go to trial on June 27, 2022;
  • Jonathan Mayorca: The independent journalist was violently arrested and his equipment damaged while filming an Los Angeles protest in May 2020. He is a plaintiff in a class-action suit filed by the National Lawyers Guild that is tentatively set to go to trial in August 2022;
  • Linda Tirado: Photojournalist Tirado filed a lawsuit in June 2020, less than two weeks after she was permanently blinded in one eye by a rubber bullet shot at a Minneapolis protest. A settlement conference is currently scheduled for Feb. 16, 2022.

The protest fallout continues

With nearly 50 journalists involved in more than two dozen BLM protest-related lawsuits across 14 cities so far, it will be years before the fallout settles.

At least two reporters only recently filed, waiting more than a year after their arrests while covering Black Lives Matter protests.

Steven Monacelli, who was arrested in a police kettle in June 2020 while covering Dallas protests against police brutality, filed in October 2021.

Pablo Unzueta, a student and freelance photojournalist based in Los Angeles, also filed his suit in October following his arrest in September 2020, during which officers roughly grabbed him, threw his camera to the ground and tightened his handcuffs until he lost all feeling in his hands. The deputies also seized his camera and cell phone for multiple months and have claimed that Unzueta’s SD memory card was “lost” while the camera was in custody.

Unzueta’s attorneys are now in the final stages of settlement discussions with the city, which he said is a relief.

“It takes an emotional toll on you,” Unzueta said. “It was an important part of recognizing that what happened to me was real and it was serious.”

Unzueta told the Tracker that he was afraid to file the lawsuit at first, fearing retaliation from the Los Angeles County Sheriff’s Department, but decided to move forward in order to hold the officers accountable.

“I see my situation as a raindrop in this bucket, so maybe the more claims and lawsuits [law enforcement] get, the more they’ll start reassessing the way they treat the media.”