Riot police and protesters on Inauguration Day. (Photo by Alex Edelman)

The American Civil Liberties Union of D.C. is suing the city, the Metropolitan Police Department, Police Chief Peter Newsham, and other officers, alleging unconstitutional arrests and excessive force, among other abuses, against protesters on Inauguration Day.

The four plaintiffs in the case “epitomized the different abuses that happened on that day,” says Scott Michelman, a senior staff attorney for the ACLU of D.C. at a press conference announcing the lawsuit.

Those four plaintiffs include a photojournalist who was arrested and subject to a manual rectal search, a legal observer who was pepper sprayed, and two demonstrators who say they were peacefully protesting when they were arrested after hours of being trapped by officers.

Those two demonstrators, Elizabeth Lagesse of Maryland and Milo Gonzalez of New York, are still facing felony charges related to the protest that could result in decades in prison.

Shay Horse, the photojournalist, says he was covering the protests as part of his job. He says a police officer saw him taking pictures and still pepper sprayed him. He described the scene as the “Wild West.”

On Inauguration Day, largely near Franklin Square, some protesters smashed windows and set fires, in what the U.S. Attorney’s Office of D.C. called a “violent riot” that caused more than $100,000 in damages to buildings, property, and vehicles. Six police officers faced minor injuries.

But the ACLU of D.C. says that police used the actions of a few lawbreakers to punish many others, who were there to exercise their First Amendment rights. “When there’s a little bit of lawbreaking at a mostly peaceful demonstration, the response from MPD is massive, excessive, and unconstitutional,” says Michelman.

Horse, Lagesse, and about 200 others were corralled into a confined area (a tactic known as “kettling”) for hours. Horse said being in the kettle as “horrifying,” describing open weeping, panic attacks, continued pepper spray, and the inability of those within to eat or drink, as well as a so-called “piss corner” for people to relieve themselves.

(From left to right) Plaintiffs Elizabeth Lagesse, Judah Ariel, and Shay Horse, and ACLU of D.C. senior staff attorney Scott Michelman. (Photo by Rachel Kurzius)

The fourth plaintiff, legal observer Judah Ariel, arrived at the kettle to witness the scene. He says he was also pepper sprayed without warning or justification, despite donning a neon-green hat that indicated he was a legal observer.

After hours in the kettle, Horse, Lagesse, and others spent more hours in a police van. They both say the zip ties used to cuff their hands were so tight that Horse still experiences numbness in some fingers and Lagesse has a scar from cuts sustained by the zip ties.

Horse and Gonzalez were both subjected to manual rectal probe searches while in custody. “I feel like I was raped,” says Horse.

The lawsuit, while alleges that MPD violated the First, Fourth, and Fifth Amendments along with D.C.’s First Amendment Assemblies Act, and is seeking damages for its plaintiffs along with changes to policy at the police department.

D.C.’s First Amendment Assemblies Act was enacted after more than 400 peaceful protesters were arrested in Pershing Park in 2002 during an anti-globalization protest. The city ultimately had to pay $8.25 million to settle a class-action lawsuit and provide a written apology to plaintiffs seven years later.

The ACLU sees glimmers of Pershing Park in what occurred on Inauguration Day. “We’re concerned both about how officers were trained, but also about policy and leadership,” says Michelman. “It’s clear from coordinated nature that the decisions to approach demonstrators this way, to violate demonstrator’s rights, came from the very top.”

However, MPD stands by its actions on Inauguration Day, citing a “group of individuals who chose to engage in criminal acts, destroying property and hurling projectiles, injuring at least six officers. These individuals were ultimately arrested for their criminal actions, and the bulk of them are pending prosecution after being indicted by a grand jury,” the department said in a statement. “As with any pending criminal or civil matter, we will continue to support and respect the formal legal process. Moreover, all instances of use of force by officers and allegations of misconduct will be fully investigated.”

There is another lawsuit against MPD alleging false arrests and excessive force, a class action suit filed Inauguration weekend by a group of arrested individuals.

The Office of Police Complaints called for an independent investigation of MPD conduct on Inauguration Day, and there’s $150,000 in the 2018 budget for such a review.

Michelman says the ACLU is concerned that police actions, coupled with “awfully excessive” charges filed en masse against demonstrators that day “send a chilling message to those who want to protest” in D.C. and now see the potential of “assault, arrest, and facing a lot of jail time.”

Among those still facing felony charges and looking at 75 years behind bars is a journalist, Aaron Cantú, despite the fact that the U.S. Attorney’s Office for D.C. has dropped charges against other journalists like Horse.

Lawyers for 21 of the defendants, including Lagesse, have filed a motion for dismissal. “This indictment does not allege that the moving defendants personally destroyed property or engaged in violence, nor does it allege that the moving defendants said anything to urge others to do so,” the motion to dismiss reads.

“Rather, the indictment seeks to hold the moving defendants criminally responsible for participating in a large group protest and simply failing to walk away when a small number of other individuals in the group allegedly broke the law.”

ACLU of D.C. Lawsuit by Rachel Kurzius on Scribd