UPDATE: Richmond judge denies effort by ACLU to ban law enforcement from using chemical irritants on protesters

Virginia News

UPDATE 12:38 p.m.: A Richmond judge denied an injunction request Tuesday from the American Civil Liberties Union (ACLU) of Virginia seeking to prohibit law enforcement from using chemical agents to disperse protesters.

The Virginia branch of the ACLU filed a lawsuit in Richmond Circuit Court on behalf of the Virginia Student Power Network against the City of Richmond, its police and also Virginia State Police.

The suit claimed that they infringed upon the demonstrators’ First Amendment rights after an unlawful assembly was declared outside City Hall the night of June 22 into the early hours of June 23.

After oral arguments in the case Monday, Richmond Circuit Court Judge Hon. Beverly Snukals said that a ruling would be made “promptly.”

RICHMOND, Va (WRIC) — A judge did not render a decision Monday afternoon on a lawsuit filed against the Richmond Police Department, the City of Richmond, and Virginia State Police after the American Civil Liberties Union of Virginia (ACLU) requested an emergency temporary injunction on police to stop using physical and legal action when not needed.

The action, filed in Richmond Circuit Court, argues Richmond Police and Virginia State Police infringed on the First Amendment rights of demonstrators after an unlawful assembly declaration outside Richmond City Hall, the night of June 22 into the early hours of June 23.

Social media posts show tear gas and flash bangs deployed in the area.

A screen grab of unrest outside Richmond City Hall on Monday, June 22, 2020.

Richmond Circuit Court Judge Hon. Beverly Snukals said a decision would be made “promptly” following oral arguments Monday.

Legal counsel for the defense argued a temporary injunction would be “protection of speculative conduct how police may act,” and would “micro-manage” law enforcement’s ability to do their jobs.

They went on to say protesters had barricaded-off Marshall Street for a number of hours; blocking traffic, and risking public safety. Specifically, proximity to the VCU medical campus was cited.

In response, Nicole Tortoriello, an attorney representing the ACLU, argued that the one instance a car needed to exit the area, protesters allowed it to happen.

Her team argued other judges across the county have granted injunctions against police in similar cases.

“Broadly speaking, other courts have found that similar situations where police have been using these less-lethal weapons like tear gas, rubber bullets, that those cities, those police departments have been enjoined for continued use of those tactics against protesters who are simply exercising their constitutional right. So all we’re asking is for a similar injunction here,” Tortoriello said after the hearing.

Counsel for the ACLU said they do not want an outright ban to unlawful assembly declarations. They indicated even if three or more protesters risked public safety—which is the state’s threshold for unlawful assembly—the response from police on June 22 was “improper,” and the physical response may provide ‘a chilling effect’ on demonstrators who want to protest in the future.

Andrew Chang, counsel for the ACLU from DC-based law firm Covington & Burling office, said the “consistent use of tear gas,” the shuffle of Richmond police leadership and no explicit statement that tear gas would not be used presents a deterrent for those who wish to exercise their first amendment rights.

“We would like to get some sort of binding commitment, either from the court or from the police department itself, that this whole thing is not okay,” Chang said. “And, when the Virginia Constitution says you have the right to lawful assembly, well, that matters.”

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