On August 22, 2017, President Trump held a rally at the Phoenix Convention Center (PCC) in Arizona. Two groups, “Poder in Action” (Poder) and “Puente,” protested at the rally. The Phoenix Police Department (PPD) developed a security plan that included a “Free Speech Zone” for protesters and an adjacent “Public Safety Zone” with no public access. The latter was set apart by a three-foot-high fence threaded with yellow tape that said “Police Line Do Not Cross.” The PPD also deployed its “Tactical Response Unit” (TRU) for the rally. [1]
The crowd of approximately 6,000 protesters included antifa members who were beginning to cause trouble in the “Free Speech Zone.” TRU observed antifa members pushing the security fence. TRU officers fired pepper balls [2] at the ground in front of the antifa fence pushers. No crowd warning was given before the deployment of the pepper balls. Some antifa members backed off into the larger crowd, but others remained.
After the pepper ball deployment ended, unlawful crowd actions increased. Protesters threw rocks, water bottles and other objects at an increasing rate. One protester threw a gas canister, which necessitated officers to don gas masks. TRU deployed smoke canisters [3] but many in the crowd failed to yield. The use of smoke canisters caused protesters to significantly increase the number of objects thrown at the officers, including a pyrotechnical munition that ignited but was extinguished without injury to officers.
TRU used tear gas and flash bang grenades to disperse the crowd. Pepper spray and pepper balls were also deployed when necessary to counteract threatening and aggressive participants. Police tactics were successful in dispersing the unruly crowd.
The lawsuit
Two groups, Poder and Puente (The “Class” Plaintiffs) [4] and certain individuals, sued the City of Phoenix, the Phoenix Police Chief, the on-scene Lieutenant and several police officers pursuant to 42 U.S.C. § 1983 in federal court. They alleged violations of First, [5] Fourth and Fourteenth Amendment rights because tear gas, chemical irritants and flash bang grenades were used against them. The district court dismissed the lawsuit without trial for all defendants except for the individual Fourth Amendment excessive force claims asserted by three individual plaintiffs against certain PPD officers. Appeals followed to the United States Court of Appels for the Ninth Circuit.
The Ninth Circuit decision
The Court of Appeals (like the district court) divided its ruling into two parts, one for the two organizations (Poder and Puente, the “Class” plaintiffs) and a second that included “individual” plaintiffs struck by pepper balls.
The “Class” Fourth Amendment claim: The court affirmed the district court’s ruling that there was no Fourth Amendment violation of the constitutional rights of “Class” members. The court ruled that the police actions did not violate the Fourth Amendment because the TRU use of airborne (e.g. tear gas, pepper spray and smoke canisters) and auditory irritants (e.g. flash bang grenades) was not “a seizure within the meaning of the Fourth Amendment” because these objects did not physically hit the protesters. [6] Because class members were dispersed by police action and not restrained and were not hit by police deployed instruments, there was no Fourth Amendment “seizure” of class members.
The “Class” Fourteenth Amendment claim: The court next evaluated the Fourteenth Amendment claims of the “Class.” The court stated that Fourteenth Amendment excessive claims must establish that the TRU conduct was sufficiently egregious to meet the Supreme Court’s “shock the conscience” test. [7] The court explained two court-approved methods determine whether police conduct shocks the conscience. Application of the appropriate judicial method depends upon whether officers have time to deliberate before acting.
The court explained, “Where ‘the situation at issue evolved in a time frame that permits the officer to deliberate before acting,’ then an officer’s use of force will be found to “shock the conscience” if the officer acted with “deliberate indifference” toward any resulting harm.” [8] “If, on the other hand, ‘the situation at issue escalated so quickly that the officer had to make a snap judgment,’ then the officer’s use of force “shocks the conscience” only if the officer acted with ‘a purpose to harm [the plaintiff] for reasons unrelated to legitimate law enforcement objectives.’” [9]
The court examined the situation confronting the PPD at the time the decision to disperse was made and observed that crowd members became increasingly unruly. They threw a gas canister, a pyrotechnic device and numerous other objects at the officers, and antifa members had attempted to breach the fence between them and the officers. The court noted that immediately after these dangerous crowd actions occurred, a PPD decision to disperse the unruly crowd was made after only three minutes of deliberation.
Given the rapidly deteriorating and dangerous situation, the court concluded that swift decision-making was necessary and appropriate. The court applied the “purpose of harm” standard and determined there was “nothing in the record suggesting that the officers had an improper purpose to harm” the protesters. The court explained that the amount of force employed by police did not “give rise to a reasonable inference that it was applied for the purpose of inflicting harm rather than for the ‘legitimate law enforcement objectives’ of ‘self-protection, and protection of the public.’”
The Fourth Amendment excessive force claims of individual plaintiffs
Ira Yedlin: Yedlin was involved in shaking the perimeter fence that separated the two zones. He retreated when TRU officers fired the initial pepper ball volley but quickly returned and again participated in fence shaking. This second effort caused officers to fire a second volley of pepper balls directly at the protesters and Yedlin was struck several times. Yedlin alleged that the police action violated his Fourth Amendment rights.
The Ninth Circuit disagreed and ruled against Yedlin. [10] The court observed that “[t]he PPD had a very significant interest in avoiding any breach of the security fence separating the Free Speech Zone from the Public Safety Zone, because that would present an immediate and substantial threat to the safety of the officers, nearby members of the public, and potentially even the President’s motorcade. By returning and vigorously shaking the fence just seconds after the PPD had repelled an apparent attempt to breach it, Yedlin posed an immediate threat to the PPD’s ability to maintain this boundary.” The court noted that Yedlin’s injuries were not overly serious and that he was not entitled to a warning because officers had already fired a pepper ball volley at the fence shakers.
Janet Travis: Travis intentionally approached the police “skirmish line” that was firing pepper balls to disperse the protesters in order to photograph the police action. She stood in front of and close to the skirmish line as it moved forward. She did so “after officers had begun deploying chemical spray at the crowd in her immediate vicinity.” An officer fired a weapon at her from close range.
The court observed that “She was targeted with a “muzzle blast” — a burst of chemical powder with irritating properties — as well as pepper spray and an unknown projectile. … Travis was left with a burning sensation in her eyes for roughly fifteen minutes, a temporary cough, and bruising on her backside that caused her to miss a day of work.”
The court ruled that officers did not use excessive force against Travis. The court explained that her injuries were not serious and that she “remained in the area in clear disregard of the repeated announcement that an unlawful assembly had been declared and after multiple orders to disperse had been issued. Moreover, Travis chose to place herself directly in front of the advancing skirmish line, and in doing so, she placed herself between the officers and near the remaining crowd behind her, which was continually throwing objects at the officers.”
The court stated that the police had “strong interests in addressing the lawlessness behind her, in maintaining the advance of the skirmish line, and in enforcing the unlawful-assembly order. Viewing all of the circumstances in context, the repeated applications of force made by the advancing officers, including the particular blast that impacted Travis, were reasonable measures to accomplish the PPD’s substantial interests in public safety.”
Cynthia Guillen: After officers deployed inert smoke on the ground in the direction of the protesters, Guillen began walking away from the police. She was subsequently hit by a projectile in her stomach and upper lip. The court observed, “This wound caused her severe pain [and resulted in bleeding] in the immediate aftermath of the protest, as well as for several days afterward. Additionally, Guillen claims that the range of movement in her leg has not fully returned, and that she now requires the use of an inhaler.”
The court ruled that Guillen’s body strike by a police-fired projectile was a Fourth Amendment “seizure” and that the police use of force against her presented “a triable issue as to whether that use of force was objectively unreasonable.” The court explained, “even if Guillen had ‘heard and was in non-compliance with the officers’ orders to disperse, this single act of non-compliance, without any attempt to threaten the officers or place them at risk,’ [11] would not make reasonable the particular use of chemical projectiles against her, causing the moderately serious injuries she experienced.”
Nevertheless, even though the court concluded that the police use of force against Guillen likely violated the Fourth Amendment, the court determined that the individual defendant officers were entitled to qualified immunity because their conduct vis–à–vis Guillen did not violate clearly established law. Put differently, there was no existing case law that gave sufficient notice to officers that their actions against Guillen amounted to excessive force. [12]
Lessons learned
1. Violation of Fourth Amendment rights of members in a crowd of protesters requires a “seizure” of their person. The Ninth Circuit observed, “the Court in Torres confirmed that a “‘seizure’ of a ‘person’ can take the form of physical force or a show of authority that in some way restrains the liberty of the person.” See, Torres v. Madrid, 592 U.S. 306, 311.
2. “Seizure” would include grabbing, holding or otherwise physically restraining crowd members. It would also include hitting them with police-fired objects such as pepper balls. A “seizure” can also occur when crowd members acquiesce to police orders to remain in a particular place. A seizure does not occur when protesters follow police orders to disperse.
3. The Ninth Circuit ruled that no “seizure” of crowd members took place when police used pepper spray, tear gas, smoke canisters and flashbang grenades to disperse the crowd after it became unruly and began hurling harmful objects at the police.
4. The court ruled concerning Yedlin, Travis and Guillen that hitting them with police generated objects (e.g., pepper balls) was likely a “seizure” but for Yedlin and Travis was nonetheless objectively reasonable and not excessive because officers faced a dangerous breach of public safety, including potential breach of the security fence, that had to be controlled.
5. The court ruled that hitting Guillen with pepper balls as she followed police orders to disperse by walking away was a Fourth Amendment excessive force violation but ruled that the officers were entitled to Qualified Immunity because their actions did not violate clearly established law.
6. A violation of Fourteenth Amendment due process rights of crowd protesters requires a “shocks the conscience” finding by the court. One method of reaching a “shocks the conscience” conclusion requires a court finding of “deliberate indifference” by police. This in turn depends on whether the officers had enough time to fully appreciate the negative dangerous consequences of their actions. In other words, did they have time to realize that their actions would cause excessive and unnecessary serious injury and performed them anyway.
7. Conversely, if police officers are faced with the need for quick decision making in the face of immediate or imminent danger, the court will apply a “purpose to harm” standard to decide whether the police conduct “shocks the conscience.” The question then becomes, did the officer intend simply to inflict pain on the victim, or was the action taken to preserve public safety, officer safety and law and order? An officer’s subjective mindset is difficult to prove
Bottom line: Police may use tear gas, pepper spray, flash-bang grenades, smoke canisters and pepper balls to disperse an unruly crowd when the crowd has become an actual objective danger to public safety. Police should warn the crowd of what will happen if they fail to leave as ordered.
If only a limited number of protesters are engaging in potentially dangerous conduct, they should be singled out and individually controlled.
References
1. TRU officers receive special training on the use of force to control individuals involved in civil disturbances.
2. Pepper balls release “PAVA powder” that causes temporary irritation to the eyes of those affected by it.
3. Smoke canisters produce “inert” smoke and do not produce the same physical effects as tear gas.
4. The Ninth Circuit observed that the district court divided the plaintiffs into two categories (“Class”plaintiffs) and (individual plaintiffs) and ruled that class members allegedly hit by police deployed projectiles etc., needed to have their allegations reviewed in the individual plaintiffs’ category. Thus, for purposes of court review, the “Class” portion of the opinion did not include individual claims of physical injury.
5. This case review is intended primarily to focus of the alleged Fourth and Fourteenth Amendment violations by members of the PPD. However, the Ninth Circuit also ruled that the PPD defendants did not violate the First Amendment rights of the protesters by using certain forceful methods to disperse them. The court explained, “Accordingly, the question here is whether the conduct of the persons in the Free Speech Zone, taken as a whole, created objectively reasonable grounds to conclude that there was a ‘clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.’ Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); see also Grayned, 408 U.S. at 116 (‘[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment.’). We conclude that, based on the undisputed facts, there were sufficient objectively reasonable grounds to establish the requisite “clear and present danger” of an “immediate threat to public safety, peace, or order.”
6. Puente v. City of Phoenix, (No. 22-15661) (9th Cir. 12/19/24). The court explained, “’The ‘seizure’ of a ‘person’ can take the form of physical force or a show of authority that in some way restrains the liberty of the person.’ (See, Torres v. Madrid, 592 U.S. 306, 311 (2021). A seizure by show of authority, ‘such as an order for a suspect to halt,’ does not constitute a “seizure” within the meaning of the Fourth Amendment ‘unless and until the arrestee complies with the demand.’ But a seizure by physical force may occur even ‘if the force, despite hitting its target, fails to stop the person.’ “(Torres, 592 U.S. at 311).
7. County of Sacramento v. Lewis, 523 U.S. 833,844,854 (1998).
8. See, Ochoa v. City of Mesa, 26 F. 4th 1050, 1056 (9th Cir. 2022) and County of Sacramento v. Lewis, 523 U.S. at 849-53. Deliberate indifference occurs when the likelihood of serious injury to persons resulting from a deliberate police action is obvious and it is implemented without regard to the known and likely injury that follows. See, City of Canton v. Harris, 489 U.S. 378 (1989).
9. See, Ochoa, 26 F. 4th at 1056 and County of Sacramento, 523 U.S. at 852-54. The more time police officers have to decide on a course of action that results in forseeable personal injury, the more likely the court will apply a “deliberate indifference “standard and analysis to the situation and the more likely a “shock the conscience” Fourteenth Amendment violation will follow. Conversely, when officers must make quick or instant decisions under pressure to protect life and property, the court will apply a more difficult standard for plaintiffs to overcome, namely the “purpose to harm” standard. It is very difficult for plaintiffs to prove a subjective “purpose to harm” state of mind for a defendant officer.
10. The court assumed without deciding that a Fourth Amendment seizure of Yedlin’s person occurred when he was struck by pepper balls and ruled that the police action in firing them was a reasonable response to a dangerous situation.
11. Nelson v. City of Davis, 685 F.3d 867, 882 (9th Cir. 2012).
12. In order for a plaintiff to overcome a pretrial assertion of qualified immunity by a police officer, the plaintiff must produce sufficient facts to show that a constitutional violation occurred and that the law was clearly established regarding the alleged violation of the constitution. See, Saucier v. Katz, 533 U.S.194 (2001) and Pearson v. Callahan, 555 U.S. 223 (2009). Guillen was unable to meet the second “clearly established law” requirement that is necessary to overcome the qualified immunity defense.
