Federal Judge Bans Tear Gas on Nonviolent Protesters in Columbus
Judge Marbley’s opinion begins with a quote from Dr. Martin Luther King Jr. — “Somewhere I read that the greatness of America is the right to protest for rights” — and his swift invocation of the rights of the press, protest and speech.
“Unfortunately, some of the members of the Columbus Police Department had no regard for the rights secured by this bedrock principle of American democracy,” Judge Marbley wrote. “This case is the sad tale of police officers, clothed with the awesome power of the state, run amok.”
Judge Marbley then traced policing back to the colonial-era “citizen watchmen,” which he said punished everything from claims of witchcraft to minor infractions like “extravagant boots.” He then explored the slave codes and patrol system of the antebellum South and the Black Codes that came after the Civil War. “The two codes were so similar, it is a wonder that the copy-and-paste functionality was only invented more recently,” the judge wrote.
Rachel Moran, a professor at University of St. Thomas School of Law in Minneapolis, called the opinion “remarkable” and “unusual” in its scope.
“Historically, federal courts have been extremely reluctant to interfere with policing decisions and policies,” she said. The decision, she added, was “unusual not only because it restricts the Police Department’s options for using force on protesters, but because it thoroughly sets out this country’s troubling history of police brutality and unauthorized uses of force as a backdrop for this order.”
A group of protesters filed the lawsuit in July, accusing the Columbus Police Department of using excessive force at protests the month before. That lawsuit, which seeks damages from the city and a permanent injunction on the police tactics, may not conclude for two years, according to Fred Gittes, one of the lawyers representing the protesters.
The opinion bars the police from using a wide array of tactics against nonviolent protesters, including “tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling.” Nonviolent protesters are defined in the opinion as people who are “chanting, verbally confronting police, sitting, holding their hands up when approaching police, occupying streets or sidewalks, and/or passively resisting police orders.”