Below is my column in The Hill newspaper on Mayor Muriel Bowser’s unquestioned statements about how she is shocked by the federal actions against peaceful demonstrators. Bowser told CNN’s Cooper “I think I’ve been shocked all week about how the federal government behaved against American citizens.” For some of us, the statement came across as a Claude Rains moment of being “shocked, shocked” that protesters are being silenced in D.C. She (and CNN) ignored the actions of her Chief of Police and her dismissal of objections of civil libertarians to Newsham’s appointment. Now, that was truly shocking.
Here is the column
The media has concluded that Muriel Bowser is winning against the White House in the battle over law and order in Washington. This is a heroic tale that broadly features her denouncing the federal crackdown on peaceful protesters in Lafayette Park last week. This also happens to be untrue, as not only is the District of Columbia responsible for most of the recent use of force on its streets, but she chose a police chief responsible for one of the most costly and abusive crackdowns on protesters in city history.
I know because I was one of the attorneys who led the litigation against Metropolitan Police Chief Peter Newsham over the infamous World Bank mass arrest of 2002. Despite numerous objections from civil libertarians and his own admitted mass violations of protected constitutional rights, Bowser selected him as her police chief for the District of Columbia.
For several of us who have represented protesters and journalists before, Bowser made a jarring response to the federal clearing of Lafayette Park, declaring that “if you are like me, you saw something that you hoped you would never see in the United States of America.” However, we have seen it, and the man often standing next to her is one of the men who ordered it, a block from Lafayette Park. Indeed, Newsham not only cracked down on peaceful protesters, he cracked down on others present as well.
In 2002, during demonstrations against the International Monetary Fund and the World Bank, the Metropolitan Police, the Park Police, and others carried out a mass arrest at Pershing Park in Washington. This was a “trap and arrest” tactic in which police funneled people into Pershing Park and Freedom Plaza, where they were prevented from leaving by officers in riot gear from various state and federal departments. Ultimately, hundreds of protesters, journalists, and tourists had been arrested in one day. In order to deal with the huge number of arrests, the District “hog–tied” the arrested persons with zip ties from their right wrist to their left ankle and left them for hours on the Police Academy gym.
Unlike with the case of Lafayette Park, no orders had been given to disperse. Newsham simply said it seemed like the crowds of people “were continuing to act as one organized group and would at some point leave the park to continue their unlawful demonstrations in the streets.”
Also on the scene was former Metropolitan Police Chief Charles Ramsey. According to several officers, he gave the order to “teach them a lesson” and lock them up. Ramsey denied giving such an order or uttering those words. Instead, his subordinate Newsham took the blame, and the result was millions of dollars in fees, damages, and settlements after more than a decade of intense litigation, including allegations of the destruction of evidence and false statements from District of Columbia officials.
Bowser was obviously not responsible for the police abuses in 2002. But her statement still comes across to some of us as grating. Rather than an operation happening in less than an hour, as in Lafayette Park, that mass arrest ordered by Newsham in 2002 was planned and lasted much of the day. Yet when Bowser selected the man responsible for one of the most costly unconstitutional crackdowns in history, she called him “the best person to be the best police chief for the best city in the world.”
Newsham admits that three orders had been given to clear Lafayette Park last week before Park Police moved forward. Unlike his order in 2002, the Lafayette Park order appears lawful, though many of us believe it was the wrong decision. These orders given in Lafayette Park were made standard procedure after the litigation about Pershing Park. Yet another disconnect between what Bowser said and reality is that the vast majority of scenes of police actions against protesters in the District of Columbia in recent days involve state rather than federal forces. Moreover, only a small fraction of all the arrests and injuries appear related to federal operations.
Yet none of these facts appear in news coverage. Most of the media is still reporting that Attorney General William Barr had ordered Lafayette Park to be cleared and tear gas to be used on protesters to allow President Trump to have his rightly criticized photo in front of the church. But according to Barr and other sources, that decision to expand the perimeter was made the night before by Park Police and approved by Barr the next morning. It had nothing to do with the photo, which arose later in the day.
Barr said he did not know about the photo when the plan was approved or the operation started. The decision was based on injuries, arson incidents, and object throwing. Lafayette Park is cleared regularly for security zones. This does not mean the decision was correct. Barr explained the order to push back the perimeter was delayed until later in the day. The operation should have been delayed further due to a danger of violence, including the unwarranted use of pepper spray. It is not likely that the order or the operation will be found unlawful given the orders to move back.
Litigation may bring to light more evidence, which is very badly needed, particularly on why pepper spray was used or whether tear gas was used. Bowser has been quoted as citing the Lafayette Park incident as a reason why the District of Columbia must be given statehood. Putting aside her good faith reasons for wanting a change in status, statehood would not have prevented the clearing of Lafayette Park, which is federal property. The federal government can defend such property in any city.
What happened in Lafayette Park was wrong, but we will not learn from such lessons today by blotting out the lessons of the past. This history is readily available to Bowser, and it did not start last week. She only has to ask the District of Columbia police chief standing next to her.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.