Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 1 of 33 PageID 39 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION DELAINE SMITH, BRIAUNA BOSWORTH, SHARRONA BRIGHTMAN, and ELIZABETH MULRONEY Plaintiffs, vs. Case No.: 3:20-cv-00629 SHERIFF MIKE WILLIAMS, in his official capacity as Sheriff of the Consolidated City of Jacksonville, Florida, J.H. WING, individually;F. CANNADAY, individually; DD. STUHR, individually; and C.S. JOHN, individually. Defendant. PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW Plaintiffs, Delaine Smith, Briauna Bosworth, Sharrona Brightman, and Elizabeth Mulroney, by and through undersigned counsel, and pursuant to Fed.R.Civ.P. 65 and Rule 4.06, Local Rules of the United States District Court for the Middle District of Florida, hereby move this Honorable Court to enter its Order preliminarily enjoining the Jacksonville Sheriffs Office (JSO) from further violations of their First and Fourth Amendment rights. In support thereof, Plaintiffs state: 1. This case arises from the Jacksonville Sheriffs Office (JSO) giving unlawful dispersal orders, ordering the use of violence against, and unlawful arrests of peaceful demonstrators who were speaking out against discriminatory police practices against black people. 2. Just after 8:00pm on May 25, 2020, George Floyd, a forty-six-year-old father, son, brother, and black man was accused of a non-violent offense and arrested by the Minneapolis Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 2 of 33 PageID 40 police. In the process of his arrest, Mr. Floyd was handcuffed and fell to the pavement. Less than ten minutes after the police arrived, a police officer placed his knee and the weight of his body on Mr. Floyd's neck as Mr. Floyd lay on the ground. For eight minutes and forty-six seconds, the officer held his knee on Mr. Floyd's neck as Mr. Floyd pleaded for relief. Other officers held his legs or stood by and watched while he died. Among Mr. Floyd's fmal words were those spoken by Eric Gamer before he was killed by a New York City police officer in 2014-"I can't breathe"- which have since become a tragic rallying cry for people seeking to address racial inequities and reform the American criminal justice system. 3. On Sunday, May 31, 2020, a group of demonstrators, including Plaintiffs, gathered peacefully in downtown Jacksonville to protest the gross, systemic injustices perpetrated by law enforcement against black people in the United States, exemplified by the brutal murder of George Floyd. This was a continuation of protests in Jacksonville, Florida and elsewhere since Mr. Floyd's killing. JSO ordered Plaintiffs and other protesters to disperse and leave without any legal justification to do so. Without provocation, JSO officers deployed chemical agents and otherwise used excessive force upon the crowd to shatter the peaceful gathering, forcing demonstrators to flee the area. Additionally, the JSO arrested over fifty individuals for charges such as unlawful assembly and resisting an officer without violence in the absence of probable cause and for the purpose of silencing Plaintiffs' First Amendment expression. 4. Plaintiffs have a fundamental First Amendment constitutional right to free speech, assembly, association, and to petition the government for a redress of their grievances. 5. JSO's actions deprived Plaintiffs of these constitutional rights, even though such deprivation was neither necessary nor reasonably related to the safety of Duval County or protection of the public. 2 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 3 of 33 PageID 41 6. As a proximate result of Defendant's customs, policies, practices, acts, and omissions complained of herein, Plaintiffs will suffer and continue to suffer immediate and irreparable injury if Defendant is permitted to continue the same. 7. Plaintiffs have no adequate or complete remedy at law to address the wrongs described herein. Plaintiffs continue to be irreparably injured by the customs, policies, practices, acts and omissions of Defendant unless the Court grants immediate injunctive relief which Plaintiffs seek. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter its Order granting a preliminary injunction enjoining Sheriff Mike Williams, his agents, employees, successors in office, and all other persons in active concert with him from: (a) Ordering peacefully assembled protestors to disperse unless the following criteria are met: (I) Sherriff Williams has determined that the assembly poses a clear and present danger of imminent violence, threat to public safety, or impairment of traffic and (2) determined that all alternative crowd measures have been exhausted and ineffective. (b) Arresting or using any force against protestors for their failure to comply with an order to disperse without first: (I) specifying with reasonable particularity the area from which dispersal is ordered; (2) issuing audible and unambiguous orders in a manner designed to notify all persons within the area that dispersal is required and providing sufficient warnings of the consequences of failing to disperse; (3) providing a sufficient amount of time in which to heed the warnings and exit the area; (4) announcing and ensuring a means of safe egress from the area that is actually available to all person(s); (5) ensuring that the person subject to any arrest or use of force is not attempting to disperse as directed. 3 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 4 of 33 PageID 42 (c) Deploying chemical agents or irritants against protestors unless: (1) efforts to subdue a threat by using alternative crowd measures have been exhausted and ineffective; (2) Sheriff Williams has determined that the use of chemical agents is the only reasonable alternative available; (3) the use of chemical agents is only directed to those causing violent or potentially life-threatening activity; (4) the chemical agents are not deployed indiscriminately into a crowd. RELEVANT FACTS AND EVIDENCE IN SUPPORT OF PRELIMINARY INJUNCTION A. to Disperse. JSO Orders Peaceful Protestors Gathered Near the Duval County Courthouse On May 31,2020, protestors congregated peacefully outside the Duval County courthouse to protest police brutality against black people in the wake of George Floyd's killing. See Affidavit of Delanie Smith, attached as Exhibit 1, at ~~ 2-3. Toward the beginning of the protest, JSO allegedly made the following announcement to the attendees: The Jacksonville Sheriffs Office (JSO) respects and acknowledges the rights of persons to express their views in a lawful manner. JSO's role is to protect the rights of the public and peaceful protestors by enforcing the law and maintaining order. During a lawful protest, JSO will, however, take appropriate action in response to anyone who breaches the peace, engages in disorderly conduct, incites a riot by words or actions, or when other criminal violations are observed or reported. Please be reminded that anyone who engages in unlawful behavior that obstructs or interferes with a lawful and peaceful protest may also be subject to arrest or citation. If you have any questions regarding what is or is not prohibited activity, please ask to speak to an on-scene police supervisor. Thank you for your assistance and cooperation in maintaining order and civility today. See Generally Composite Arrest and Booking Reports, attached as Exhibit 2. At some point during the protest, a phalanx of over fifty JSO officers and Florida State Troopers wearing riot gear and carrying batons marched along the streets adjoining the courthouse 4 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 5 of 33 PageID 43 and formed a skirmish line around the protestors. See 5/31/20 Courthouse Protest Compilation Video, attached as Exhibit 3, at 0:00-0:29. Video evidence showed that the crowd of protestors at the protest that day was not uncontrollably large, rather it consisted of three-to-four rows of individual protestors holding signs that did not even fill up half of the sidewalk leading into the courthouse. Delanie Smith Courthouse Protest Video, attached as Exhibit 4, at 0:16. The courthouse complex is large, encompassing two city blocks, and the lawn and surrounding sidewalks could easily accommodate the protestors present. !d. Furthermore, given that the protest was held on a Sunday, traffic in the area was light to non-existent. Id While the protestors themselves were only occupying the sidewalks and not blocking the street, JSO staged twenty to thirty officers in riot gear in front of the protestors directly on Adams Street, which adjoins the south-facing entrance ofthe courthouse. Id at 2:45. JSO made an announcement to "disperse the area" to those wbo were present. Id At the time the order was given, the protesters who were present were peacefully protesting on the sidewalks directly in front of the courthouse and not engaged in any violent or unlawful behavior. Affidavit of Elizabeth Mulroney, attached as Exhibit 5, at ,6. Video footage of the courthouse protests shows that the members of the crowd were peacefully standing along the courthouse sidewalk, not causing a disturbance, or blocking the flow of traffic. Ex. 4, Delanie Smith Courthouse Protest Video, at 0:00--00:31. At this time, PlaintiffDelanie Smith approached a JSO officer to assist them in ensuring the protestors disbursed peacefully. Ex. 1, Delanie Affidavit, at ,,8; Ex. 4, Delanie Smith Courthouse Protest Video, at 1:09-1:36. Ms. Smith then asked the JSO officers if the protestors could continue to protest in small groups. Ex. 4. at 1:36. After Plaintiff Smith confirmed that JSO was ordering them to leave the courthouse, the video shows protestors beginning to walk away from the area along the sidewalk and courthouse 5 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 6 of 33 PageID 44 lawn. Id at 1:30-3:03. The JSO officers did not provide a reason for why the crowd needed to disperse, other than to cryptically state that that it was "due to concerns of public safety." See Generally Ex. 2, Composite Arrest and Booking Reports. JSO Arrests and Uses of Force against Protestors Congregated at the Duval B. County Courthouse While They Are Dispersing. While the crowd at the courthouse was dispersing, JSO officers commenced using force and indiscriminately arresting protestors-many of whom were complying with the dispersal order. For example, as Plaintiff Smith was assisting the officers by asking the protestors to leave the area, JSO officers arrested her for unlawful assembly. Ex. 1, Smith Affidavit at ~~8-10. Plaintiff Elizabeth Mulroney, who is sixty-one years of age, was walking with other protestors away from the courthouse after JSO gave the order to disperse. Ex. 5 Mulroney Affidavit at ~8. The JSO officers blocked all three streets surrounding the courthouse, meaning the only direction the protestors could travel was either toward the courthouse or toward the officers. Id As Plaintiff Mulroney neared the intersection of Broad Street and West Duval Street-an intersection on the opposite side of the courthouse from where the order to disperse was givenPlaintiff Mulroney asked an officer for directions as to how she could get to her vehicle. Id at ~10. The officer responded by yelling "arrest her!" Id Two other officers then grabbed her and twisted her arm behind her back. Id Plaintiff Mulroney asked to be taken to the hospital due to the substantial pain in her shoulder caused by the use of force. Id ~11. Once she was discharged from the hospital, Plaintiff Mulroney was booked into the Duval County Jail and charged with unlawful assembly. See Ex. 2, Composite Arrest and Booking Reports. Across the street from the courthouse, a filmmaker documenting the protest named Bernardo Santana was filming JSO officers as they arrested another protestor. Ashley Harding & Kelly Wiley, Under Police Review: Video Shows JSO Officer Punching Protestor, NEWS4JAX 6 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 7 of 33 PageID 45 (June 3, 2020), available at https://www.news4jax.com/news/local/2020/06/03/under-policereview-video-shows-jso-officer-punching-protester/. The JSO officers told Mr. Santana to step back. !d. Mr. Santana complied with the order, stepping backward as he continued to film. !d. Another officer then grabbed Mr. Santana from behind and threw him onto the pavement. !d. They then arrested Mr. Santana for unlawful assembly. !d. JSO continued to indiscriminately arrest protestors as they left the crowd gathered in front of the courthouse. In five of the arrests, the officers even noted in their reports that the protestors were walking away when they were arrested. See Ex. 2, Composite Arrest and Booking Reports, at 17 ("The suspect failed to disperse from the area as ordered. The suspect was observed standing in the planter box on the west side of the courthouse after the order to leave had been given. He began to walk away as he was approached"); 103 ("I observed the suspect standing in the planter box on the west side of the courthouse after the order to leave had been given. She began to walk away as I approached her. I placed the suspect under arrest."); 124 ("The suspect was observed standing on the sidewalk on the north side of the courthouse after the order to leave had been given. She began to walk away and the suspect was placed under arrest."); 138 ("I observed the suspect standing in the planter box on the west side of the courthouse after the order to leave had been given. She began to walk away as I approached her. I placed the suspect under arrest."); 141 ("the suspect was observed standing on the sidewalk in the west side of the courthouse after the order to leave had been given. She began to walk away and the suspect was placed under arrest.") Furthermore, these arrest reports indicate JSO officers arrested these protestors when they were in different areas from one another and the south-facing entrance of the courthouse where the order 7 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 8 of 33 PageID 46 to disperse had been given. !d. In other words, even from the arresting officers' accounts, the protestors were dispersed at the time of their arrests. 1 C. JSO's Arrests and Use of Chemical Spray on the Main Street Bridge Other protestors-including Plaintiffs Briauna Bosworth and Sharrona Brightmanmarched along the .sidewalks of downtown Jacksonville in peaceful protest toward the Main Street Bridge. See Affidavit ofBriauna Bosworth, attached as Exhibit 6, at "i["i[4-5; Affidavit of Sharrona Brightman, attached as Exhibit 7, at "i["i[4-5; see Main Street Bridge Video I, attached as Exhibit 8, at 0:00-0:041. Some protestors were walking in the roadway of the ramp leading up to the Main Street Bridge when a convoy of JSO trucks then approached the crowd. Ex. 8 at 00:42. As JSO approached, the majority of the protestors parted to the side to allow them through, climbing over the railing onto the sidewalk and out of the way of traffic. !d. at 00:55-01:16. Two individuals broke away from the crowd and stood in front of the JSO trucks. !d. Several JSO officers then exited their trucks and approached the crowd gathered on the sidewalk. /d. at 2:00-2:04. Three officers grabbed a protestor (not one of the individuals blocking traffic) who had his back against the railing and pulled him to the ground. !d. at 2:05-2:15. A JSO officer then walked down the line of protestors and deployed chemical spray indiscriminately into the protestors gathered on the sidewalk. !d. at 2:15-3:03; Main Street Bridge Video 2, attached as Exhibit 9, at 00:05-00:08. JSO then ordered the protestors on the bridge to disperse. Ex. 6, Bosworth Affidavit, at "i[7; Ex. 7, Brightman Affidavit at "i[7. However, the officers blocked the protestor's egress on the sidewalk leading off the bridge, forcing the protestors to either walk toward the officers or cross 1 Merriam Webster's dictionary defines "disperse" as "(a)to cause to break up; (b) to cause to become spread more widely; (c) to cause to evaporate or vanish.", Merriam-Webster Dictionary (II th ed. 2003). 8 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 9 of 33 PageID 47 the bridge. See Ex. 8, Main Street Bridge Video 1, at 3:46-4:08. Many of the protestors leapt over the ramp railing to reach a sidewalk not blocked by JSO so they could leave the area and recover from the use of chemical spray. Ex. 8 at 4:08-6:51. At this time, Plaintiffs Bosworth and Brightman proceeded down the sidewalks of Jacksonville back toward the courthouse. Ex. 6, Bosworth Affidavit at ,8; Ex. 7, Brightman Affidavit at ,8. However, upon returning to the courthouse, Bosworth and Brightman were told they could not be there either. Ex. 6, Bosworth Affidavit at ,9; Ex. 7, Brightman Affidavit at ,9. The two then proceeded to walk east through downtown, ultimately ending up on Bay Street by the Police Memorial Building. Ex. 6, Bosworth Affidavit at ,,10-12; Ex. 7, Brightman Affidavit at ,,1 0-12. Members of the Jacksonville Sheriffs Office then arrested them on charges of unlawful assembly. Ex. 6, Bosworth Affidavit at ,12; Ex. 7 Brightman Affidavit at ,12. At no time were either Plaintiffs Brightman or Bosworth engaging in any acts of violence or obstructing the roadways for travel. Ex. 6, Bosworth Affidavit at ,13; Ex. 7, Brightman Affidavit at ,13. D. JSO's Arrests and Use of Force in the Bay Street Area. Other protestors marched peacefully along Bay Street, which is located several blocks away from both the Courthouse and Main Street Bridge. See Bay Street Video 1, attached as Exhibit 10. The videos taken at the time show the protestors walking down a sidewalk, some of them carrying signs, in an orderly fashion and not acting violently and not obstructing traffic. Jd; Bay Street Video 2, attached as Exhibit 11 at 0:00-0:39. A group of JSO officers driving down Bay Street then passed the protestors. Ex. 11 at 0:02-0:013. The video then shows immediately after JSO's arrival, the calm tenor of the proceedings change, as protestors can be seen runoing in a panic from the area where JSO just arrived. Id. While it is not clear from the video what transpired to cause the protestors to flee, the video evidence leading up to the incident demonstrates that situation presented no threat of imminent danger that would require JSO to intervene. 9 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 10 of 33 PageID 48 Shortly after the protestors begin fleeing down Bay Street, several JSO officers can be seen grabbing a protestor by the back and waist. !d. at 1:30-1:34. Video footage from another angle of the incident showed one JSO officer holding the protestor in a chokehold while another officer rushed forward and punched the protestor in the face. Ex. 3, Protest Compilation Video, at 0:420:44. The officers then threw the protestor to the ground. Id at 0:44-0:50. In another video captured shortly after that incident, two protestors can be seen walking on the sidewalk off of Bay Street on to Market Street. See Body Slam Video, attached as Exhibit 12, at 0:00-0:03. The two protestors seen on the video were walking alone and away from the Bay Street area toward a row of parked cars, where other pedestrians can be seen walking on the sidewalk unmolested by JSO. Id JSO officers then blocked their path, causing the protestors to step further into sidewalk, away from an area where JSO officers are seen arresting another protestor. Id A JSO officer then can be seen guiding one protestor to the wall-who complies by walking in the direction where the JSO officer pushed him and putting his hands against the wall Id at 0:03-00:06. The JSO officer then wrapped his arm around the protestor's neck and threw her onto pavement. Id Another JSO officer then threw the other protestor to the ground as well. !d. Only three second elapsed on the video from the time when the officers initially stopped the protestors to when they threw the protestors to the ground, during which time no audible commands can be heard being given to the protestors. Id E. Events Following the Protest All told, JSO arrested fifty-four protestors during the protests on May 31, 2020. See Ex. 2, Composite Arrest and Booking Reports. The majority of protestors were charged with unlawful assembly or resisting an officer without violence. Id The protestors arrested that afternoon were not processed into the Duval County Pre-Trial Detention center until after a 8:00pm curfew that 10 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 11 of 33 PageID 49 evening. See Composite Exhibit 2, Arrest and Booking Reports at Date and Time Admitted entry; Andrew Pantazi, Without Explanation, Jacksonville Judge Sought Jail Time, Required Bail for Protestors, FLORIDA TIMES (June UNION 17, 2020) available at https ://www. jacksonville.com/news/2020061 7/without-explanation-jacksonville-judge-soughtjail-time-required-bail-for-protesters. The protestors were not allowed to post bond according to Duval County's bond schedule and were instead detained until their first appearance hearing on June 1. !d. Even though the overwhelming majority of arrests were for non-violent offenses, the protestors (with two exceptions) were given higher bonds than those set on the bond schedule if they did not accept a plea offer of five days in jaiL !d. After reviewing video footage of the protest, the State Attorney's office dropped the criminal charges of forty-eight protestors. Kelly Wiley, Charges Dropped Against 48 Arrested in 1st weekend of Jacksonville Protests. News4Jax (June 12, 2020) available at https://www.news4 jax.com/i-team/2020/06/12/charges-dropped-against-most-arrested-in-! stweekend-of-jacksonville-protests/. This accounted for nearly all of the fifty-four protestors that day (except for a few cases and those protestors who had accepted the plea offer at first appearance). Since the week of George Floyd's killing protestors have continued to stage demonstrations m downtown Jacksonville. The Plaintiffs desire to continue to engage in peaceful protests regarding the systemic injustices perpetrated by law enforcement against black people in the United States. Ex. 1, Smith Affidavit, at ~13; Ex. 6, Bosworth Affidavit, at ~14; Ex. 7, Brightman Affidavit, at ~17, Ex. 5, Mulroney Affidavit, at ~12. However, they fear that doing so will result in their further arrest. !d. 11 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 12 of 33 PageID 50 On June 11, 2020, GOP officials announced that Jacksonville will host the Republican National Convention. Christopher Hong, Republican National Convention Coming to Jacksonville, Florida Times (June Union 11, 2020) available at https://www.jacksonville.com/news/20200611/republican-national-convention-coming-tojacksonville?template=ampart. President Trump is scheduled to give his nomination acceptance speech on August 27, 2020. Id The President himself has become a prominent figure in the protests and controversy surrounding George Floyd's killing after posting incendiary tweets decrying protestors, such as referring to them as "THUGS" and posting "when the looting starts, the shooting starts," a racist slogan used by a former Miami police chief to advocate for police brutality and discriminatory practices targeting African Americans. Barbara Sprunt, The History Behind 'When the Looting Starts, the Shooting Starts," NPR (May 29, 2020). Indeed, on June 1, 2020, President Trump told state governors on a conference call that they need "dominate" protestors to quell the protests taking place around the country and if they did not, they were "going to look like a bunch of jerks." David Jackson, Michael Collins and Mauseen Groppe, 'Most of you are weak': Trump rails at the nation's governors, urges crackdown on violence, USA Today (June l, 2020). On June l, 2020, D.C. authorities, allegedly at the request of Attorney General William Barr, dispersed protestors near the White House so that President Trump could hold a photo-op at St. John's Episcopal Church. Evan Perez and David Shortell, Attorney General Barr Ordered Authorities to Clear Protesters Near White House, DOJ Official Says, CNN (June 2, 2020), https://www.cnn.com/2020/06/02/politics/barr-protests-white-house/index.html. President Trump's speech coincides with the sixtieth anniversary of Axe-Handle Saturday-an event where a group of 2000 white men gathered in Hemming Park in downtown Jacksonville with baseball bats and ax handles and attacked black protestors conducting sit-ins. 12 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 13 of 33 PageID 51 Brandon Tensley, Juneteenth, Ax Handle Saturday and the Danger in Trump's Racial Myopia, CNN (June 13, 2020). The white mob spread and then attacked all black people in sight. Id. Given Trump's prominent role in the nation-wide protests and the timing of his acceptance speech at the RNC, there is a high likelihood of protest and police presence at least on par and with, likely greater than, that present on the weekend following George Floyd's killing. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Plaintiffs are entitled to a preliminary injunction because they satisfY each prong of the four-part test necessary for the issuance of a preliminary injunction. Specifically, (1) Plaintiffs are likely to prevail on the merits of their constitutional claim; (2) they will be irreparably injured in the absence of an injunction against Defendant's unconstitutional activities; (3) the granting of a preliminary injunction will cause less harm to the Defendant than would be caused to the Plaintiffs in the absence of a preliminary injunction, and (4) the public interest would clearly be served by enjoining Defendant's unconstitutional acts. See Nadi v. Richter, 976 F.2d 682, 690 (lith Cir. 1992); Rules 4.05(b)(4) and 4.06(b)(l), Local Rules of the United States District Court for the Middle District of Florida. I. Substantial Likelihood of Success A. First Amendment Freedom of Speech and Assembly Plaintiffs' likelihood of success on the merits is substantial. The First Amendment declares that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the goverrunent for a redress of grievances." U.S. CONST. AMEND. I. The Amendment embodies and encourages our national commitment to "robust political debate," Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988), by protecting both free speech and associational rights. See, e.g., id. (freedom of speech); NAACP v. Alabama ex rel. Patterson, 357 13 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 14 of 33 PageID 52 U.S. 449, 460-61 (1958) (freedom of association); DeJonge v. Oregon, 299 U.S. 353, 364 (1937) ("The right of peaceable assembly is a right cognate to .. . free speech and ... is equally fundamental."). The Supreme Court has held that the First Amendment protects political demonstrations and protests- activities at the heart of what the Bill of Rights was designed to safeguard. See Boos v. Barry, 485 U.S. 312, 318 (1988) (calling organized political protest "classically political speech" which "operates at the core of the First Amendment"). The Court has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder. In Edwards v. South Carolina, 372 U.S. 229 (1963), the Court reviewed the convictions of 187 college and high school students for "breach of the peace" by protesting on the state capitol grounds. Their purpose was 'to submit a protest to the citizens of South Carolina, along with the Legislative Bodies of South Carolina, our feelings and our dissatisfaction with the present condition of discriminatory actions against Negroes, in general, and to let them know that we were dissatisfied and that we would like for the laws which prohibited Negro privileges in this State to be removed.' Id at 230 (1963). The protesters walked the capitol grounds for the next thirty to forty-five minutes; neither automobile nor pedestrian traffic was impeded by the students' activities. Id at. 231-32. "Police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder." Id at 232-33. Police then advised the students that they must disperse within fifteen minutes. Id at 233. Rather than disperse, the students listened to a pastor preach and began to sing patriotic songs. Id After fifteen minutes the students were arrested and ultimately convicted for "breach of the peace." Id. at 233-34. 14 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 15 of 33 PageID 53 The Court found that the students' conduct reflected an exercise of fundamental First Amendment rights "in their most pristine and classic form." I d. at 23 5. The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views. '(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.' Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131. As in the Terminiello case, the courts of South Carolina have defmed a criminal offense so as to permit conviction of the petitioners if their speech 'stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.' !d., at 5, 69 S.Ct., at 896. As Chief Justice Hughes wrote in Stromberg v. California, 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. * * *' 283 U.S. 359, 369, 51 S.Ct. 532, 536,75 L.Ed. 1117. Jd. at 237-38. As a result, the students' convictions were reversed.Jd. at 238. The Supreme Court has consistently reversed convictions and declared statutes unconstitutional where the arrest of citizens was premised upon their fundamental First Amendment right to speech, assembly and to petition the government for redress of grievances. In Cox v. Louisiana, 379 U.S. 536 (1965) (Cox 1), the Court reversed the conviction of a minister 15 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 16 of 33 PageID 54 leading the protest of 2000 black college students at the Baton Rouge courthouse. The students were demonstrating to protest the "the illegal arrest of some of their people who were being held in jail," as well as "the evil of discrimination." Id at 540. The protest entailed its participants peacefully marching and carrying signs along a sidewalk adjacent to the courthouse. Id at 541. After drawing a bit of a crowd and making "inflammatory" remarks to it, Cox and the students were ordered to leave by the Sheriff. ld at 543. The protestors refused to comply with his command and the police officers shoved students and launched tear gas cannisters into their ranks. Id at 544. The protesters thereafter dispersed and Cox was arrested the following day "because he was causing a disturbance." Id In reversing Cox's convictions under various Louisiana statutes, the Court observed: "[m]aintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy." ld at 552. While acknowledging that the government has an obligation to keep its streets open and available for movement, the Court found law enforcement's discretion in determining which types of expression to allow rendered enforcement of the statute prohibiting obstruction of public passages unconstitutional as to Cox. Id at 555-58. See also United States v. Grace, 461 U.S. 171 (1983) (holding statute prohibiting distribution of pamphlets on sidewalk around the Supreme Court, a public forum, unconstitutional as it infringed the defendant's First Amendment rights). The right to assembly finds the most strength and historical support in public for a, such as public streets, city parks, and government buildings. See also United States v. Frandsen, 212 F.3d 1231, 1237 (11th Cir. 2000) ("Streets and parks are the quintessential public fora, because those areas have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing 16 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 17 of 33 PageID 55 public questions."') (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,45 (1983) (quoting Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939))). Government officials, however, may disperse public demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). The Court had occasion to weigh the balance between the government's obligation of public safety upon its streets and a citizen's First Amendment right to freedom of speech and assembly in Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). Pastor Shuttlesworth led a march of black people along the sidewalk "to protest the alleged denial of civil rights to Negroes in the city of Birmingham." Id at 149. The protestors did not interfere with other pedestrians nor was any traffic obstructed. Id Nevertheless, after marching four blocks the protestors were arrested for engaging in a parade or procession without obtaining a permit. Id In finding that picketing and parading were forms of expression entitled to First Amendment protection, the Court quoted with approval its prior decision in Hague, 307 U.S. at 515-16: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Id at 152. 17 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 18 of 33 PageID 56 Finding that it was clear that under no circumstances would the city provide Shuttlesworth with a permit to protest, the Court concluded that his arrest and conviction violated his First Amendment right of freedom of speech and assembly. Id at 159. See also Childs v. Dekalb Cty., Ga., 286 F. App'x 687 (11th Cir. 2008) (finding protesters' First Amendment rights violated when ordered to stop protesting on a public sidewalk); Keating v. City of Miami, 598 F.3d 753, 765-67 (11th Cir. 2010) (finding law clearly established that officers use of less than lethal weapons to disperse crowd of peaceful protesters violated protesters' First Amendment rights); Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006) ("Neither energetic, even raucous, protesters who armoy or anger audiences, nor demonstrations that slow traffic or inconvenience pedestrians, justifY police stopping or interrupting a public protest."). B. Fourth Amendment Excessive Force The Fourth Amendment protects individuals from the government's use of excessive force when detaining or arresting individuals. See Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). When determining whether police officers have employed excessive force in the arrest context, the Supreme Court has instructed that courts should examine whether the use offorce is objectively unreasonable "in light of the facts and circumstances confronting them, without regard to [the officers'] underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). Thus, the question of whether a constitutional violation occurred is governed by the Fourth Amendment's "objective reasonableness" standard. Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989)). The Supreme Court has established that, in order to balance the necessity of using some force attendant to an arrest against the arrestee's constitutional rights, a court must evaluate a number of factors, "including the severity of the crime at issue, whether the suspect poses an 18 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 19 of 33 PageID 57 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham 490 U.S. at 396. See also, e.g., Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir.1986) (holding that, in determining if force was reasonable, courts must examine (I) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted). "Use of force must be judged on a case-by-case basis 'from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision ofhindsight."' Post v. City ofFort Lauderdale, 7 F.3d 1552, 1559 (lith Cir.l993) (quoting Graham, 490 U.S. at 396), modified, 14 F.3d 583 (11th Cir.1994). With excessive force claims, courts must make "allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397. Nevertheless, Eleventh Circuit precedent establishes: "that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force." Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008); see also Brown v. City of Huntsville, Ala., 608 F.3d 724 (11'h Cir. 2010) (finding law clearly established that use of pepper spray upon person suspected of only minor offense constitutes excessive force). JSO's Orders to Disperse Protestors Engaged in Peaceful Violated the First C. Amendment. JSO's practice of ordering lawful and peaceful protestors to disperse violated Plaintiffs' First Amendment right to assembly. Police may not interfere with assemblies protected by the First Amendment unless there is a "clear and present danger" of riot, imminent violence, interference with traffic or other immediate threat to public safety. Cantwell, 310 U.S. at 308-309. Furthermore, the government may not prohibit angry or inflanunatory speech in a public forum 19 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 20 of 33 PageID 58 unless it is (1) "directed to inciting or producing imminent lawless action" and (2) likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444 (1969) (emphasis added). The law is clear that First Amendment activity may not be banned simply because prior similar activity led to or involved instances of violence. There are sound reasons for this rule. Demonstrations can be expected when the government acts in highly controversial ways, or other events occur that excite or arouse the passions of the citizenry. The courts have held the that the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure. Collins v. Jordan, 110 F.3d 1363, 1372-1373 (9th Cir. 1996) (citing Cox v. Louisiana, 379 U.S. 536 (1965); Kunz v. People ofState ofNew York, 340 U.S. 290 (1951)). Courts have held that unruly behavior or even crimes committed by individual citizens during a protest do not justify police ordering members of an otherwise peaceable assembly to disperse. "[T]he protections of the First Amendment do not extend solely to speech which is wellmannered and attentive to the preferences of others." Sabel v. Stynchcombe, 746 F.2d 728 (11th Cir. 1984). In Sabel, the Eleventh Circuit overturned the convictions of demonstrators for violating Georgia's Refusal to Disperse statute. !d. at 731. In that case, six members of the communist party gathered at a residential community in Georgia and began handing out flyers, speaking into a megaphone, and engaging in door-to-door solicitation. !d. at 730. The community became upset when one of the communist party members refused to leave a resident's door after she requested he leave. !d. at 730. A crowd of 200 angry residents confronted the group and began to shout, shove, and curse at them. !d. at 730. Fearing that the demonstration would result in a riot, the police officers ordered the demonstrators to disperse and, when the demonstrators did not comply, arrested them. !d. at 730. 20 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 21 of 33 PageID 59 The Eleventh Circuit held Georgia's failure to disperse statute was unconstitutional as applied to the arrested demonstrators. !d. at 731. The court noted that while the demonstrators "may have been abrasive in communicating [their] message, this does not deprive their conduct ... ofits character as speech, deserving of the fullest constitutional protection." Id at 730. It found that the police did not have a sufficient interest in preventing the incidents of "shouting" "shoving" and "cursing" described by witnesses and such conduct was virtually indistinguishable from the types of"unruly and threatening behavior" that the Supreme Court had found insufficient to justify interference with the right to assemble. Id at 73l(citing Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 11 (1986)). Furthermore, the court found that even if the police did have a sufficient interest to justify police intervention, they failed to demonstrate that the dispersal order was a suitably narrow means of achieving that interest. Id at 731. It noted that the police forewent other means that could have responded more directly to any illegal conduct without violating the Constitution, such as arresting the demonstrators who had trespassed on private property or trampled the residents' grass. Id Courts in other jurisdictions have held that the unlawful acts of a few protestors does not justify dispersal of other protestors who are peacefully and lawfully assembled. In Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006), for example the second circuit denied qualified immunity to police officers under similar circumstances to those at issue here. Jones involved a gathering of several dozen demonstrators at an event on the plaintiff's property to protest state taxes on tobacco products sold to non-Native Americans on land belonging to the Onondaga Nation. Id at 52. During the event, a small group of protestors briefly entered the highway to distribute literature pertaining to their protest, causing traffic to slow down. !d. at 53. The protest's organizers tried to convince those distributing literature to leave the roadway and return to the main demonstration. 21 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 22 of 33 PageID 60 Id After the demonstrators had left the highway, the police set up a skirmish line around the plaintiffs property and began to "charge" the protestors, beat them with batons, and arrest them indiscriminately. Id at 54. After review by a state judge, the plaintiffs' charges were later dropped. Id In an opinion written by now-Supreme Court Justice Sonya Sotomayor, the Second Circuit held under the plaintiffs' version of the facts, no objectively reasonable officer would have believed that they could have dispersed the demonstration. !d. at 58-59. While the plaintiffs had conceded that some of the demonstrators had entered the roadway, the facts they alleged showed no incitement or threat of imminent violent or tumultuous conduct. Id at 60. The court also found that even assuming the individuals on the highway had violated the law, an issue offact remained as to whether a reasonable police officer would have believed that they could disperse an otherwise peaceable demonstration because a few individuals in that crowd had violated the law at an earlier time and desisted before the dispersal order was given. ld Here, the video evidence of the various demonstrations that occurred on May 31, 2020 shows that the demonstrations did not pose a "clear and present danger" to public order that would have permitted JSO to order the crowds to disperse. The video of the protests outside the courthouse shows the crowd behaving peacefully and congregating on the sidewalk adjoining the courthouse where they were not impeding the flow of traffic. Ex. 4, Delanie Smith Courthouse Protest Video, at 0:00-1:36. At the time JSO gave the order to disperse, the crowd was not even engaging in the type of unruly "shoving," "shouting," and "cursing" that the Supreme Court and Eleventh Circuit have held insufficient to justify ordering a peaceful assembly to disperse. See Cox I, 379 U.S at 540-41; Sabel, 746 F.2d at 730. The unexplained and unjustified "concerns for public safety" on which JSO relied to justify their order to disperse the crowd is unconstitutionally vague, 22 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 23 of 33 PageID 61 attenuated, and refuted by the video evidence at the scene. As such, JSO lacked any constitutionally-permissible justification to order the lawful assembly of protestors outside the Duval County Courthouse to disperse. Similarly, the demonstration on the sidewalk along the Main Street Bridge posed no "clear and present danger" to public order. While two individuals did remain on the street and obstruct JSO vehicles from passing, the other protestors had crossed over the railing onto the sidewalk within a minute of JSO's approach. Ex. 8, Main Street Video 1 at 0:00-0:04LDespite the fact that the individuals who were blocking traffic had separated from the other protestors on the sidewalk, JSO directed dispersal orders to and utilized chemical spray upon the protestors who were behaving peacefully and not obstructing traffic. Id. at 2:05-2:14; Ex. 9 Main Street Bridge Video 2 at 0:05. Even assuming the individuals in the road were posing an imminent threat to public order, JSO was required to engage in more narrowly tailored means of restoring order-such as arresting the individuals who actually committed crimes-rather than to disperse and indiscriminately use force against members of the crowd who were not engaged in unlawful behavior. See Sabel, 746 F.2d at 731; Jones, 465 F.3d at 60. Finally, the video evidence of the Bay Street area shows the protestors were peacefully marching down the sidewalk, not impeding traffic, when JSO officers pulled up beside the protestors and began using force against them. Ex. 10 Bay Street Video 1; Ex. 11 Bay Street Video 2. These protestors were engaged in the same type of behavior that the Supreme Court has long held to be protected by the First Amendment. See Shuttlesworth, 394 U.S. at 149. In sunnnary, JSO violated the First Amendment rights of the protestors byordering them to disburse and using force to disburse them when the protestors posed no clear and present danger to public order. Those individuals who later did behave unlawfully were easily separable from the 23 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 24 of 33 PageID 62 other protestors and could have been arrested without disrupting the peaceful assembly. However, JSO's actions in dispersing all protestors from effectively every public forum in downtown Jacksonville were in no way proportional or constitutionally permissible given the lack of any threat to public order posed by those protestors. The Arrests and Uses of Force Against Non-Violent Protestors Violated the First D. and Fourth Amendment. (i)Arrests JSO' s practice of indiscriminately arresting protestors-regardless of whether they were complying with the orders to disperse-had an unconstitutional chilling effect on the Plaintiffs' First Amendment rights to engage in lawful assembly. Courts use a three-pronged test to determine whether actions taken in retaliation for protected speech unconstitutionally impair a plaintiffs First Amendment rights: (1) "that [the] speech or act was constitutionally protected;" (2) "that the defendant's retaliatory conduct adversely affected the protected speech;" and (3) "that there is a causal connection between the retaliatory actions and the adverse effect on speech." Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005); see also Battiste v. Lamberti, 571 F. Supp. 2d 1286 (S.D. Fla. 2008) (applying Bennet test in the context of arrests made after dispersal orders were given to protestors.). Retaliatory conduct has an adverse effect on protected speech, when that conduct would likely deter "a person of ordinary firmness from the exercise of First Amendment rights." Bennett, 423 F.3d at 1250. As discussed above, the lawful assembly in which the protestors engaged falls within the core of the First Amendment's protections. See City of Houston v. Hill, 482 U.S. 451, 462-63 (1987) ("The freedom of individuals to verbally oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state."). Furthermore, the unlawful arrests of those engaged in protected conduct has been 24 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 25 of 33 PageID 63 held to be sufficiently severe to deter a person of ordinary firmness from exercising their rights. See Andrews v. Scott,729 Fed. Appx. 804 (11th Cir. 2018) (noting that "even the threat of arrest would likely deter a person of ordinary firmness from exercise of First Amendment rights, at least to some degree."). Finally, as evidenced from the arrest reports, there was a causal connection between their protected conduct and adverse action taken against them. These arrests likewise violated Plaintiffs' rights under the Fourth Amendment "Under the Fourth Amendment, an individual has the right to be free from "unreasonable searches and seizures." Skop v. City ofAtlanta, 485 F.3d 1130 (11th Cir. 2007). The "reasonableness of an arrest is ... determined by the presence or absence of probable cause for arrest. Id. "Probable cause to arrest exists when law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief the suspect had committed or was committing a crime." United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002). Here, the protestors arrested during the course of the demonstrations on May 31, 2020 were predominantly charged with the crimes of unlawful assembly and resisting an officer without violence. See generally Ex. 3, Composite Arrest and Booking Reports. Florida's unlawful assembly statute imposes criminal liability: "If three or more persons meet together to commit a breach of the peace, or to do any other unlawful act...". §870.02, Fla. Stat. (2020). In addition to the elements of the offense enumerated in the statute, the Florida Supreme Court has applied a limiting construction of the statute in order to comply with the First Amendment. See State v. Simpson, 347 So.2d 414, 415 (Fla. 1977). Under the constitutional construction of the statute, the following elements must be present to commit the crime of unlawful assembly: "(1) an assembly of three or more persons who, (2) having a common unlawful purpose; 25 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 26 of 33 PageID 64 (3) assemble in such a manner as to give rational, firm, and courageous persons m the neighborhood of the assembly a well-grounded fear of a breach of the peace." Id For the reasons addressed in further detail above, the protestors' conduct did not meet the definition of an unlawful assembly. When ordered to disperse, the protestors were gathered peacefully and not in a manner that would produce a well-grounded fear that a breach of the peace was imminent. Despite charging every protestor arrested on May 31, 2020 with unlawful assembly, none of the arrest reports articulate any basis to believe that a breach of the peace was about to occur. Instead, they allude to vague "concerns of public safety." See Exhibit 2, Composite Arrest and Booking Reports. Therefore, the JSO officers lacked probable cause to arrest the protestors for unlawful assembly. Likewise, Florida law makes it a crime to resist, obstruct or oppose without violence a law enforcement officer's execution of a legal duty. § 843.02, Fla. Stat. (2020). The elements of the crime of resisting an officer without violence are: "(1) that the officer was engaged in the lawful execution of a legal duty; and (2) that the defendant's action constituted obstruction or resistance of that lawful duty." JM v. State, 960 So.2d 813 (Fla. 3d DCA 2007) (emphasis added). Under Florida law, if an officer lacks reasonable suspicion "then [they cannot] lawfully command a person to stop and the person's disobedience of an unlawful command to stop may not support a finding of reasonable suspicion or probable cause for the crime of resisting without violence." United States v. Garrette, 2017 WL 3337258 (N.D. Fla. Aug. 4, 2017). For the reasons discussed above, JSO's dispersal orders were not lawful. Therefore, the protestors disobedience to those orders could not give rise to probable cause for the crime of resisting without violence. More fundamentally--even if the dispersal orders were valid-JSO's method of enforcing them still violated Plaintiffs' First and Fourth Amendment rights. 1n the Main Street Bridge videos 26 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 27 of 33 PageID 65 and Bay Street videos, no audible orders to disperse can be heard before the officers began using force and making arrests against the protestors. Ex. 8, Main Street Bridge Video 1 at 0:55-3:03; Ex. 11 Bay Street Video 2. Even assuming JSO did give dispersal orders, given the size of the crowd, they had no way of knowing whether the individual protestors they arrested were able to hear the dispersal orders. JSO officers also arrested numerous protestors who were complying or attempting to comply with JSO's dispersal orders. See Battiste v. Lamberti, 571 F. Supp. 2d at 1297 (finding police officers were not entitled to summary judgment on protestors' First and Fourth Amendment claims arising out of their arrest, when protestors were walking away from downtown boulevard where the dispersal orders were given-in other words, they were dispersing from the area). Plaintiffs Smith and Mulroney were arrested while they were asking officers for clarification and guidance about where they could go. See Andrews, 729 Fed. Appx. at 811 ("a person may ask reasonable questions of a police officer without giving rise to probable cause or arguable probable cause for obstruction of justice."). They carried out these arrests even though JSO's announcement earlier that morning had encouraged protestors to ask officers questions regarding the lawfulness of their activity. See generally Exhibit 2, Composite Arrest and Booking Reports. Other protestors were arrested while they were leaving or after they had already left the area where dispersal orders were given, many of whom were unable to reach their vehicles because of JSO blocking their path. See Ex. 5, Mulroney Affidavit at '1[8. In at least five of the arrest reports, the officers themselves noted that the protestors were walking away when they were arrested. Ex. 2, Composite Arrest and Booking Reports at 17, 89, 103, 124, 138, 141. No reasonable officer could believe that these protestors were resisting without violence or engaged in an unlawful assembly. Rather, JSO officers indiscriminately arrested any protestor found walking downtown, 27 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 28 of 33 PageID 66 regardless of whether they heard the dispersal orders, whether they were able to comply with those orders, or whether they were complying with those orders. (i) Uses afForce Furthermore, JSO's use of force against protestors-including deploying Oleoresin Capsicum spray, chemical agent dispersal devices, and slamming protestors onto the pavement-violated the protestors First and Fourth Amendment rights. Several courts have enjoined indiscriminate uses of force-such as the use of chemical spray or cannisters-against crowds or protestors who have not engaged in unlawful conduct. In A bay v. City ofDenver, 2020 WL 3034161 (D. Colo. June 5, 2020), the court issued a temporary restraining order enjoining Denver police officers from employing chemical weapons or projectiles against persons who were engaging in peaceful protests following the killing of George Floyd. Id at *5. The plaintiff produced video evidence of numerous incidents of force, including those in which officers used pepper-spray on individual demonstrators who appeared to be standing peacefully, some of whom were speaking and yelling at the officers, but none of whom were engaging in violence or destructive behavior. Id at *1. In entering its restraining order, the court required officers deployed to the protests to have their body-worn cameras recording at all times, prohibited them from using chemical agents or irritants before an order to disperse had been issued, and-most relevant to JSO' s practices hererequired any and all orders to disperse to be followed with adequate time for the intended audience to comply and for the officers to leave room for safe egress. Id at *5. Similarly, in Black Lives Matter Seattle-King County v. City ofSeattle, 2020 WL 3128299 (W.D. Wash. June 12, 2020) the court issued a temporary restraining order that limited the City of Seattle's use of chemical irritants into crowds of demonstrators engaged in protests in the wake of George Floyd's death. Id at *5. There, the plaintiffs presented evidence that they had gathered on 28 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 29 of 33 PageID 67 Seattle city streets and outside the police precinct. Id at *4. The parties agreed that during these protests, some of the protestors launched projectiles at the police, ranging from rocks, bottles, fueworks, traffic cones, traffic flares and more. !d. at *3. Additionally, throughout the protests the police noted they encountered significant arson events, assaults on civilians and officers, as well as widespread looting and property destruction. !d. The court found that while these events posed a serious threat to officer life and safety, the proper response to potential or actual violence was for the government to ensure an adequate police presence and to arrest those who actually engaged in violent or unlawful conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure. !d. (citing Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996)). As such the court found that the plaintiffs had shown a likelihood of success on both their First and Fourth Amendment claims. Id It entered a restraining order preventing the city from using projectiles or chemical irritants such as pepper spray unless the chief of police determined that other methods to subdue a threat were ineffective and exhausted. Id at *5. It further ordered that to the extent chemical irritants or projectiles were used in accordance with the order, they could not be deployed indiscriminately into a crowd and should instead be targeted at the specific imminent threat of physical harm or to respond to specific acts of violence or destruction of property. Id; see also Ahmad v. City of St. Louis, 2017 WL 5478410 (E.D. Mo. Nov. 15, 2017) (enjoining city of St. Louis from issuing orders declaring unlawful assemblies unless the persons involved in the assembly posed imminent threat to use force and/or violence or violate a criminal law or from using chemical agents without first issuing a dispersal order and affording peaceful protestors sufficient time to comply with that order). 29 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 30 of 33 PageID 68 Here, the video evidence showed that JSO used force against protestors in the same indiscriminate manner that they carried out the arrests. On the Main Street Bridge, the officers indiscriminately employed chemical spray in the faces of protestors who were peacefully gathered on the sidewalk, when those who had entered the roadway and obstructed traffic were not even present in the crowd. Ex. 9, Main Street Bridge Video 2 at 0:05-0:08. Officers also wantonly grabbed protestors in the streets walking in small groups or alone and slammed them to the ground within seconds of coming in contact of them and while they were complying with JSO' s directions. See Exhibit 12; Ashley Harding & Kelly Wiley, Under Police Review: Video Shows JSO Officer Punching Protestor, News4Jax (June 3, 2020), available at https://wvvw.news4iax.com/news/local/2020/06/03/tmder-police-review-video-shows-jso-officerpunching-proJester/. These individuals posed no threat to public order and the officers made no effort to determine whether the individuals were, in fact, walking toward their vehicles to exit the area. Like JSO' s practice of arresting protestors, these uses of force were not directed toward preventing imminent threats to public order but were instead applied indiscriminately against any protestors moving through downtown with whom they came in contact. II. Irreparable Harm Violations of First Amendment freedoms are commonly considered irreparable injury in regard to a preliminary injunction. The United States Supreme Court, in Elrod v. Burns, 427 U.S. 347, 373, (1976), held that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See also, Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305 (1985). Here, if an injunction is not issued, JSO is likely to continue to violate the constitutional rights of protestors in the manner described above. See Lynch v. Bas ley. 744 F.2d 1452, 1456 (lith 30 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 31 of 33 PageID 69 Cir. 1984) ("past wrongs do constitute evidence bearing on whether there is a real and immediate threat of repeated injury which could be averted by the issuing of an injunction."); Beurgois v. Peters, 387 F.3d 1303, 1308(11th Cir. 2004) (finding police department's practice of using magnetometer to conduct unlawful searches of protestors was "capable of repetition, yet evading review"). The protests following George Floyd's death are ongoing and will likely increase during the Republican National Convention and President Trump's acceptance speech scheduled to be given on Axe-Handle Saturday. Plaintiffs wish to continue to engage in protests without fear of their constitutional rights being violated. As such, Plaintiffs have shown that they will suffer irreparable harm if a preliminary injunction is not granted. III. Balance of Harms The balance of harms favors the Plaintiffs for the reasons discussed under the likelihood of success prong. While JSO has an interest in maintaining public order, well-established constitutional doctrines already account for those interests and delineate when and how police officers may intervene to prevent a constitutionally protected assembly. The harm to Plaintiffs in suppression of their First Amendment rights greatly outweighs any harm to JSO in view of the constitutionally permissible tactics it may use to maintain public order. IV. Public Interest The public interest is always served when constitutional rights are vindicated. See, e.g., League ofWomen Voters ofF/a. v. Browning,863 F. Supp,. 2d 1155, 1167 (N.D. Fla. 2012) ("The vindication of constitutional rights and the enforcement of a federal statute serve the public interest almost by definition."); A Choice for Women v. Butterworth, 2000 WL 34402611, at *13 (S.D. 31 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 32 of 33 PageID 70 Fla. June 2, 2000)("the public interest is well served when the Court protects the constitutional rights of the public.") V. Bond The issuance of a security bond pursuant to Fed.R.Civ.P. 65(c) is not necessary in the instant case, or if necessary, then should be limited to a nominal amount. A security bond is necessary as the court deems proper for the repayment of costs and damages that the enjoined party may suffer if the injunction is improper. See Fed.R.Civ.P. 65(c). Despite the clear case law in support of Plaintiffs' Motion for Preliminary Injunction, the Defendant will, at most, suffer nominal damages. An improper injunction will only result in JSO being deprived of making questionable arrests and utilizing force upon peaceful protestors. Accordingly, no security bond should be required or should be for a nominal amount only. MRK/km[Protestors.prelim.injunc] 32 Case 3:20-cv-00629-BJD-JRK Document 10 Filed 06/19/20 Page 33 of 33 PageID 71 Respectfully submitted, \fn~X-~ m. J. Sheppara:ESfn; Florida Bar No.: 109154 Elizabeth L. White, Esquire FloridaBarNo.: 314560 Matthew R. Kachergus, Esquire Florida Bar No.: 503282 Bryan E. DeMaggio, Esquire Florida Bar No.: 055712 Jesse B. Wilkison, Esquire Florida Bar No.: 118505 Camille E. Sheppard, Esquire Florida Bar No.: 124518 Sheppard, White, Kachergus & DeMaggio, P .A. 215 Washington Street Jacksonville, Florida 32202 Telephone: (904) 356-9661 (904) 356-9667 Facsimile: mail: sheplaw@sheppardwhite.com COUNSEL FOR PLAINTIFFS /)~v~f)~ DEXT R AN DAVIS, ESQUIRE Florida Bar No.: 0121967 303 N. Liberty Street Jacksonville, Florida 32202 (904) 355-0102 (904) 354-0122 Facsimile Email: dvdavis!W35davis.com awilliams@3 5d_