While the trial of former police officer Derek Chauvin continues in Minneapolis, other legal proceedings have cropped up around the country in connection to the civil rights movement that followed the killing of George Floyd.
In Detroit, anti-police brutality protesters scored a number of recent legal wins. Last month, a federal judge tossed out a city countersuit filed against protesters, which alleged they had engaged in a civil conspiracy. The plaintiffs, anchored by the Detroit Will Breathe collective, continue to pursue their complaint against the Detroit Police Department, which alleges officers used excessive force to squash the street marches, violating demonstrators’ First Amendment rights in the process.
The decision comes as hundreds of criminal charges against protesters were dismissed. City attorneys are attempting to reverse the federal decision. But over the last several months, many of their legal claims have been retracted or dismissed.
‘We Are Done Kneeling’ — Protesters March Against Police
Throughout the summer of 2020, young marchers became the hallmark of Detroit’s Black Lives Matter movement. When the city imposed a temporary 8 p.m. curfew in the immediate aftermath of the police killing of George Floyd, hundreds of demonstrators surrounded the Monument to Joe Louis, the iconic black fist in Detroit’s Hart Plaza commemorating the boxer. They held signs that read “I Can’t Breathe” and “Blue Lives Murder” as they waited to defy the new order.
Nakia Wallace, then 23 years old and finishing school at Wayne State University, took a microphone connected to an amplifier speaker someone had carried with them downtown.
“This is what violence and police brutality looks like,” she said, as the crowd repeated her words. “Broken Black skin. Blood. Bruises. And I can’t take it no more.”
A lot has happened to Wallace since that first week of protesting. She helped co-found Detroit Will Breathe, a collective that’s been the main hub for the city’s Defund the Police movement.
And she was arrested, a lot.
Wallace was charged with disorderly conduct and various traffic infractions stemming from the months-long street marches. She believes she’s been targeted by law enforcement from the onset.
“There just wasn’t any evidence that we committed any crimes or that we did anything other than challenge the policies and practices of the Detroit Police Department,” Wallace says.
Wallace says the arrests themselves are illegal, too. So last August, she, Detroit Will Breathe and 13 other plaintiffs went to federal court and sued the city, claiming the police violated their First Amendment rights.
“We intend to hold them accountable for the harm that they caused,” Wallace says. “We intend to make it so that officers in the City of Detroit cannot operate with impunity.”
“We knew from the beginning that the counterclaim was nothing but the continuation of a political witch hunt.” —- Nakia Wallace, co-founder of Detroit Will Breathe
Lawsuits like this have shown up across the country since the killing of George Floyd. But Detroit is the only city to countersue the protesters. City attorneys claim to have an obligation to pursue the lawsuit.
“My office has to defend the City in the federal court case that involves Detroit Will Breathe,” said Detroit Corporation Counsel Lawrence Garcia to Detroit City Council earlier this year. “That is going to be an expense that requires funding no matter where we stand with respect to counterclaims.”
And so Nakia Wallace found herself on the defensive, sparring with the city in the legal arena over a slate of civil rights issues.
“We knew from the beginning that the counterclaim was nothing but the continuation of a political witch hunt,” Wallace says.
The cases have taken months to work their way through the criminal and civil court systems.
A Lack of Evidence Prompts a Reversal of Strategy
On the criminal side of things, a local coalition of lawyers stepped in to offer free legal defense. The attorneys have represented at least 279 people who were unlawfully arrested or ticketed during the protests. She says the protesters did not break any laws.
“They were simply out there protesting for human rights, civil rights, dignity for Black people,” says Nancy A. Parker, a staff attorney with the Detroit Justice Center. “And that is why they were arrested.”
Defense attorneys say during their hearings, city prosecutors failed to provide specific video evidence or identify arresting officers.
“None of those 279 defendants was there a DPD officer able to say, ‘I saw this person engage in this unlawful act,’” Parker says. “We know they couldn’t because we filed motions to dismiss based off of their lack of responsiveness to discovery.”
Many protesters were detained en masse and booked together by a single officer. And those are details the defense coalition leaned into. They filed motions to dismiss their clients’ cases, a near-total of 400 criminal charges, based on the insufficient discovery.
“There’s no way to make a case that the defendants could be proven beyond a reasonable doubt or responsible for the crimes in which they’re charged with,” said Judge Larry Williams before dismissing the charges. “There should be at least a record of whether there was a bodycam or not. But we don’t even know who the arresting officers were at this point, so there’s no point in going forward with any of these.”
After Williams’ decision, other judges followed suit. And prosecutors reversed their strategy. By the end of January, city attorneys announced they would dismiss hundreds of charges, citing the varying “discretion” exercised by officers when writing up citations.
But some say that’s a false narrative.
“They were embarrassed. They were put to shame because we revealed they did not have any of this evidence,” says Parker. “They didn’t have what was legally necessary to move forward, which they were supposed to have and present to us.”
A Federal Lawsuit, a Counterclaim and a Judge’s Rejection
City attorneys would not return WDET’s calls for an interview. But as Detroit’s law department began dismissing charges for some protesters, the cases against certain fixtures of the movement, like Nakia Wallace, remained unchanged. Lawyers representing Detroit Will Breathe say the prosecution was trying to intimidate the anti-police brutality movement.
“What we were told by representatives of the city law department is that those were cases they were not dismissing because they considered them to be leaders,” says John Royal, president of the National Lawyers Guild in Detroit, which is part of the defense coalition. “By pinpointing the leadership, they are trying to discourage or intimidate other people from stepping forward and being active or being identified as leaders.”
Royal says many of the remaining charges were against individuals also listed as plaintiffs in the federal civil rights lawsuit against DPD and the city.
That’s where the facts of the criminal courts intersect with the civil litigation.
“No amount of criminal prosecutions of these protesters or frivolous filing of counterclaims against legitimate civil rights claims is going to stop this movement.” —Julie Hurwitz, co-counsel for Detroit Will Breathe
“[The City of Detroit] attempted to use the simple fact that they arrested our clients as the basis for claiming that they should be allowed to sue them for conspiring to engage in violent behavior,” says Julie Hurwitz, one of the attorneys representing Detroit Will Breathe in federal court.
Detroit Will Breathe’s legal counsel says the city and its team of attorneys did not provide sufficient facts to support their counterclaim, which alleged the protest group had engaged in a “civil conspiracy.”
“They failed to identify any acts committed by either Detroit Will Breathe or any of the individual plaintiffs that could even remotely support a claim for civil conspiracy under the law,” Hurwitz says.
The federal courts agreed with that point, striking down Detroit’s countersuit permanently. In her opinion, Judge Laurie Michelson wrote the city failed to establish the “essential elements” of their allegations.
“Their allegations about planning and coordination of the conspiracy are limited to media interviews with individual plaintiffs and posts on social media about attending the protests, but not about any unlawful action,” Michelson wrote. “The Court cannot draw an inference based on these facts that there was an agreement between Plaintiffs to engage in unlawful activity. Moreover, if protesters fail to heed lawful orders to disperse, law enforcement has recourse. A speculative lawsuit that this may have been the result of a civil conspiracy to commit unlawful acts, with the attendant risks to First Amendment freedoms, is not one of them.”
Listen: Nakia Wallace talks about how the latest legal victories should not detract from the broader fight.
Detroit and its team of lawyers are making one last attempt to reverse the federal judge’s decision. They have filed a motion for reconsideration, saying the court ignored the city’s underlying complaint that protesters committed assault and battery against police officers. The words “assault” and “battery” are absent from Detroit’s original 65-page counterclaim.
“People are beginning to wake up and recognize that we have a culture of law enforcement in this society which is based on violence and racism,” Hurwitz says. “That’s what this movement is about. And no amount of criminal prosecutions of these protesters or frivolous filing of counterclaims against legitimate civil rights claims is going to stop this movement.”
As the litigation moves forward, attorneys for Detroit Will Breathe are asking the city for specific evidence. But based on recent experience, many are skeptical that Detroit’s law department will deliver.
Outside of the federal court, Nakia Wallace’s criminal charges were dismissed by a judge. Only a handful of charges stemming from the summer’s protests remain. While Michelson’s order secured a win for the protest movement, Wallace says the latest legal victories should not detract from the broader fight.
“This is a coordinated effort between law enforcement and city government to make us pay for participating in and being leaders in the largest social movement in the history of the United States,” Wallace says. “They have a plan to hunt and to punish people for standing up in defense of Black and brown life.”