Below is my column in the Hill on the District of Columbia not only admitting that it used tear gas on June 1 last year near Lafayette Park, but also defending the use as entirely appropriate to enforce the curfew order of Mayor Muriel Bowser. The media has avoided on the story despite Bowser’s previous condemnations of the alleged use of tear gas that night by the federal agencies. (The federal agencies claimed to have use pepper balls but the affect is largely the same). Both the Bowser and Biden Administrations are seeking to dismiss the Black Lives Matter lawsuit. Yet, the host of legal experts and media who condemned the use of tear gas and the clearing of the Lafayette park area last year are entirely silent on the disclosures.
Here is the column:
A federal judge in Washington is set to decide whether to dismiss a case on behalf of protesters who claim they were injured during the June 1, 2020, protests around Lafayette Park next to the White House. In the course of the arguments, one lawyer stood out in insisting that the use of tear gas against the protesters was entirely reasonable.
What was so striking is that the lawyer, Richard Sobiecki, represents the D.C. government of Mayor Muriel Bowser, who condemned the federal government for its clearing of the area and alleged use of tear gas. Much of the media lionized Bowser for her stance at the time. She received national acclaim for painting “Black Lives Matter” on the street next to the park and renaming it “Black Lives Matter Plaza.”
Now, one year later, Bowser is keeping the BLM plaza but opposing the BLM protesters. Her administration insisted in court that the protesters were legitimately teargassed by the metropolitan police to enforce her curfew that night.
After the park clearing, the media uniformly denounced then-Attorney General Bill Barr for ordering the park to be cleared so that President Trump could hold his controversial photo op in front of the St. John’s Church. The accounts in virtually every news report were quickly contradicted, but few reporters acknowledged the later facts coming out of federal agencies. As I noted in my testimony to Congress on the protest, the clearing of the park raised serious legal questions, particularly the unjustified use of force that night.
However, the repeated claim that Barr ordered the clearing of the area for the photo op was never supported and quickly contradicted. The plan to clear the park was set long before there was any discussion of the photo op, and it was based on the threat posed to the White House compound. Barr said he was unaware of any planned photo op when he approved the plan and that the delay in implementing it was due to the late arrival of needed personnel and fencing. Nevertheless, legal experts like University of Texas professor and CNN contributor Steve Vladeck continued to claim that Barr ordered federal officers “to forcibly clear protestors in Lafayette Park to achieve a photo op for Trump.”
The media has also stressed that the clearing and the force used were unjustified because the protests were “entirely peaceful” and there was no “attack on the White House.” That is untrue. As discussed in my testimony, an exceptionally high number of officers were injured during days of continuing protests around the White House complex; some 150 officers were injured, half of those around the White House. That is similar to the level of injuries during the Jan. 6 riot at the U.S. Capitol. And, as with the Capitol riot, authorities decided that a perimeter had to be established around the White House last summer. Indeed, they used the same type of fencing, although the White House perimeter was much smaller than at the Capitol.
While there was less violence that night a year ago, the rioting included the burning of a historic structure, extensive property damage nearby, and the attempted burning of historic St. John’s Church. Indeed, the violence led the Secret Service to move the president into the White House bunker, and officers said they were concerned that the complex might be breached.
That brings us back to the new admission from the D.C. government.
There has long been a dispute as to whether the federal operation employed tear gas. The federal government has maintained that it used pepper balls. As I stated in my congressional testimony, the distinction is really not significant, practically or legally; pepper balls and tear gas can have the same effect on protesters, and both are often referenced together in court orders as “non-lethal riot control devices.”
However, as this debate over the denial of tear gas by the federal operation raged, neither Bowser nor her government stepped forward to say that D.C.’s Metropolitan Police used tear gas in their operations a block or so from Lafayette Park. Instead, Bowser denounced the force used by the Trump administration, including the use of tear gas.
Now, with Trump out of the White House, Bowser’s administration insists there was nothing unreasonable in the use of tear gas to enforce a curfew and is asking the court to dismiss the lawsuit by protesters, including Black Lives Matter DC. The media that spent the past year denouncing the Trump administration over its alleged use of tear gas seems largely silent as Bowser’s administration claims its own use of force was reasonable.
The federal government still apparently denies using tear gas. D.C. police admit to using tear gas nearby to enforce Bowser’s curfew, but she has long insisted that the district did not assist in clearing Lafayette Park, which began before the curfew.
U.S. District Judge Dabney Friedrich now must decide if the clearing of the park was done for Trump’s photo op or, as federal agencies claim, to protect the White House as a national security priority.
After the Lafayette Park operation, Bowser declared that “if you are like me, you saw something that you hoped you would never see in the United States of America.” Now, her government is arguing not only that the protesters’ claims should be dismissed but that the district did and can continue to use tear gas in such situations, even to enforce a curfew.
In the meantime, the Biden administration agrees that the case should be dismissed entirely. The Department of Justice (DOJ) maintains that “Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance.” The DOJ’s counsel, John Martin, added that “federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.”
The response to that from the media has been … crickets.
What a difference a year — and a new president — can make.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.