The ACLU of Nebraska filed a lawsuit in U.S. District Court on Monday challenging constitutional violations in the law enforcement response to Omaha Black Lives Matter protests.
The organization held a news conference in Omaha to announce the lawsuit, with officials standing in front of a podium with a "We will hold you accountable" sign.Ìý
The lawsuit claims excessive force by police and retaliation with force against peaceful protesters. It names the city of Omaha, Omaha Police Chief Todd Schmaderer and Omaha Police Capt. Mark Matuza as defendants.
It was filed on behalf of ProBLAC, an Omaha organization, and a diverse group of people calling for racial justice. Plaintiffs include protesters, bystanders, a legal observer and a journalist. All of them were detained or arrested in what's become known as the Farnam Street march.
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It also challenges the vagueness and breadth of Omaha ordinances used in the arrests.Ìý
"The lawsuit argues that Omaha Police’s aggressive enforcement of unconstitutionally vague city codes violated protesters’ rights under the U.S. Constitution, chilling peaceful free expression and subjecting protesters to unreasonable arrests and excessive force resulting in injury and trauma," ACLU spokesman Sam Petto said.Ìý
The ordinances, such as prohibiting obstruction of public ways, give law enforcement too much discretion on when and how to enforce them, the organization said.
Omaha City Attorney Paul Kratz issued a statement saying it was difficult for the city to respond to a lawsuit before it has been served with the complaint.
But he went on to say: "Omaha has always been supportive of free speech and public demonstrations and will continue to do so. The police make every effort to cooperate and protect demonstrators as long as they obey the law and police commands. We look forward to defending the city."
The litigation focuses on policy and practices of Omaha Police during the Farnam Street march in July and this summer’s initial Black Lives Matter protests outside Crossroads Mall in late May. At each scene, police met peaceful protesters with militarized force and made mass arrests to enforce minor misdemeanor charges, according to the complaint.
The plaintiffs request a full evidentiary hearing and seek injunctions prohibiting police from relying upon traffic ordinances to shut down peaceful protest in the street and from using chemical agents to disperse peaceful protesters. The lawsuit also requests a judgment that defendants violated each plaintiff’s constitutional rights, along with any damages proven at trial.
ACLU of Nebraska Executive Director Danielle Conrad said the new lawsuit is an important tactic in the organization’s overall efforts to promote police accountability and racial justice.
“The answer to protests against police brutality shouldn’t be more brutality,†Conrad said. “Omaha Police have put Black Omahans and all Omahans calling for justice in the unacceptable position of deciding between their constitutional rights and their own health and safety.â€Â
According to the lawsuit, Omaha police initially escorted the march as it proceeded east by blocking side streets and providing safety support.
But near dusk, as the march proceeded west back to its starting point, officers began announcing over their microphones: “This is the Omaha Police Department. This has been declared an unlawful assembly. You are all subject to arrest, and go home now, or failure to disperse now will result in your arrest.â€
Schmaderer publicly explained the response July 29, saying “public streets are not forums for protesting.â€
Despite the nonviolent nature of the march, police shot a protester at point-blank range with pepper ball guns, the ACLU alleged. They arrested 125 people, zip-cuffing their hands, making them sit for hours in a parking lot without water or a restroom, and eventually booking them into the Douglas County Jail, a facility the ACLU said is not equipped to handle such an influx in a safe manner during the COVID-19 pandemic.
Many of those arrested said they heard law enforcement and corrections workers suggest the arrests were intended to discourage future participation in protests. Weeks later, Omaha’s city prosecutor dismissed the majority of charges because of a lack of evidence.
Plaintiffs described being thrown to the ground, kneed in the midsection by multiple officers, tackled, pushed off bikes, grabbed, kick-swiped and hit with tear gas canisters.
Some of the same kinds of actions by law enforcement happened in Lincoln, where so-called non-lethal projectiles or chemical irritants such as tear gas were used on protesters and rioters. People were injured, some seriously, when hit in the face, head and torso with rubber bullets and tear gas canisters.
Conrad said there have been individual cases filed on behalf of people who were harmed in both Lincoln and Omaha. And the organization hasn't completely ruled out whether it might continue to explore similar strategies in Lincoln.Ìý
Discussions are going on with protesters who were harmed, she said, when Lincoln Mayor Leirion Gaylor Baird decided to meet pleas for justice with militarization and criminalization.Ìý
"I don't think we have any decision on that today, but there are many similarities we are concerned about," Conrad said.Ìý
The mass arrest in Omaha in late July is a distinguishing difference that shows an ongoing pattern and practice of unreasonable responses to expressive behavior, Conrad said.Ìý
In Lincoln, the initial response of a curfew, mass response of law enforcement and the hurt and harm of young activists remains deeply concerning from a civil rights standpoint, she said. But after some scary days and nights, the Lincoln mayor met with protesters, listened to them and stopped enforcing the curfew.Ìý
"Lincoln did make thoughtful decisions to change course somewhat as the protests continued," Conrad said. "We have those experiences right here in the Capital City showing that when you focus on deescalation and you support people's rights to peaceful, free expression you have better outcomes for everybody."