Abdur-Rahim v. City of Columbus
| Decision Date | 02 December 2019 |
| Docket Number | Case No. 2:17-cv-601 |
| Citation | 425 F.Supp.3d 935 |
| Parties | Ellen ABDUR-RAHIM, et al., Plaintiffs, v. CITY OF COLUMBUS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Freda J. Levenson, Elizabeth Bonham, ACLU of Ohio, Cleveland, OH, David J. Carey, American Civil Liberties Union of Ohio Foundation, Columbus, OH, for Plaintiffs.
Connor Lefevers, Columbus, OH, pro se.
Paula Jennings Lloyd, Michael R. Halloran, Columbus City Attorney's Office, Columbus, OH, for Defendants.
Plaintiffs Ellen Abdur-Rahim and Harrison Kallner (collectively "Plaintiffs") have filed a Motion for Partial Summary Judgment (ECF No. 64). Defendants City of Columbus, Interim Chief of Police Thomas Quinlan, Lieutenant Jeffrey Lipp, Officer Justin Masters, and Officer John Thiel (collectively "Defendants") have filed a Motion for Summary Judgment (ECF No. 63). Both parties have responded and replied (ECF Nos. 69, 70, 71, 72). Therefore, the parties' motions are ripe for review.
For the following reasons, the Court DENIES Plaintiffs' Motion for Partial Summary Judgment (ECF No. 64) and GRANTS in PART and DENIES in PART Defendants' Motion for Summary Judgment (ECF No. 63).
On January 27, 2017, President Trump issued Executive Order 13769, which, among other changes to immigration policies and procedures, banned individuals of seven countries from entering the United States for 90 days. This Executive Order is commonly known as President Trump's "Muslim Ban." The Columbus Division of Police learned from social media that more than 1,900 people planned to protest the Muslim Ban at the Ohio Statehouse on January 30, 2017, (Pls.' Mot. Partial Summ. J., Ex. 2, ECF No. 64-2.) Protest organizers named the demonstration "Rally for the 99%." (Answer at 16, ECF No. 33.)
In response to the number of people expected to attend the demonstration, Lieutenant Lipp, the incident commander for the planned protest, developed an incident action plan. This plan detailed the protocol for patrolling the demonstration. (Id. ) According to the Incident Action Plan, the Columbus Division of Police's mission was "to provide a safe environment for those expressing their [First] Amendment rights, to maintain the safe flow of vehicular and pedestrian traffic, to prevent civil disorder, and to protect people and property." (Pls.' Mot. Partial Summ. J., Ex. 2.) The Incident Action Plan stated that "[t]he Division will take appropriate enforcement actions as necessary to achieve the assigned mission." (Id. ) The Incident Action Plan contained "enforcement notes," which stated the following:
If the crowd becomes violent or confrontational, there are obvious violations of the law, and it is no longer possible to safely provide basic police and fire services to the area, the dispersal order will be given. The order will be made over the PA of a cruiser and/or bullhorn. The dispersal order will be given at least two times, and more if practical. If the crowd fails to disperse from the affected area, officers will be directed to guide protestors from the area. Chemical mace may be used, as directed by the Incident Commander or designee, for protestors. Other chemical agents or munitions may be deployed if necessary.
(Id. )
As expected, the Rally for the 99% demonstration began at the Ohio Statehouse around 6:00 p.m. on January 30, 2017. (Kallner Dep. 28:4–9, ECF No. 63-31; Masters Dep. 124:16–125:3, ECF No. 63-32.) Plaintiffs arrived separately at the Ohio Statehouse around 6:00 p.m. (Abdur-Rahim Dep. 45:21–46:23, ECF No. 63-30; Kallner Dep. 21:2–22:4.) There, the protestors peacefully chanted and sang until about 7:30 p.m. (Kallner Dep. 28:4–19; Masters Dep. 124:16–125:3.) The group then began a planned march from the Statehouse to the Franklin County Court of Common Pleas. (Kallner Dep. 29:16–31:5.)
When the protestors marched south toward the Franklin County courthouses, some began "flooding the streets." (Kallner Dep. 30:18–19.) In cruisers and on foot, police officers tried to keep protestors on the sidewalk instead of in the streets, but their efforts were unsuccessful and protestors marched in the streets. (Id . ) Around 7:45 p.m., Columbus public buses were "advised to pull off High Street because protestors occupied the roadway." (Lipp Aff. at ¶ 16.)
Protestors had gathered at the footsteps of the Franklin County Court of Common Pleas by 7:53 p.m. (Id. at ¶ 18.) There, the protestors occupied Mound Street, which blocked vehicles from traveling between South High Street and Front Street. (Id. ) Around 7:57 p.m., the protestors then began marching back toward the Statehouse. (Defs.' Mot. Summ. J., Ex. B, ECF No. 63.) They occupied the northbound lanes of High Street, which stopped traffic.
The protestors arrived at the intersection of South High Street and State Street (the "Intersection") around 8:14 p.m. (Id. , Ex. B.) Approximately 150 to 300 protestors remained in the Intersection, completely blocking traffic in all directions. (Masters Dep. 127:18–20; Lipp Aff. at ¶ 21.) They did not have a permit or permission to obstruct any street. (Lipp Aff. at ¶ 40.)
Directly south of the Intersection, police staged a small field force across all of South High Street's lanes. (Lipp Aff. at ¶ 34.) From 8:20 p.m. to 9:00 p.m., Lieutenant Lipp and other police personnel gave dispersal orders over cruiser-loudspeakers and bullhorns. (Id. at ¶¶ 24–25.) The dispersal orders advised the protestors who remained in the Intersection that: they were violating Ohio law, there was an emergency situation, the law required them to clear the Intersection or be subject to arrest, and police may deploy chemical agents if protestors did not disperse. Despite the repeated dispersal orders, many protestors remained in the Intersection. (Lipp Aff. at ¶ 25.)
After protestors refused to leave the Intersection, Lieutenant Lipp was concerned individual arrests might escalate the situation from non-violent to violent. (Id. at ¶¶ 26–27.) He also knew that mass arrests were infeasible. (Id. at ¶ 26.) So, around 8:42 p.m., Lieutenant Lipp requested additional officers and supervisors to respond to the Intersection. (Id. at ¶ 30.) He then directed officers to don their gas masks in front of the protestors to gain compliance. (Id. at ¶ 32.) The tactic was unsuccessful, and protestors remained in the Intersection. (Id. ) Lieutenant Lipp decided pepper spray (also referred to as "mace") was necessary but chose to wait to deploy any until additional officers arrived at the scene. (Id. at ¶ 33.)
Around 9:04 p.m., Lieutenant Lipp advised officers to use a two-second spray of mace over the heads of the protestors who remained in the Intersection to clear it. (Id. at ¶¶ 40, 45.) Police officers deployed pepper spray at 9:04 p.m. (Lipp Aff. at ¶ 45; Masters Dep. 163:1–15.) By 9:24 p.m., all protestors had cleared the Intersection and nearby roadways. (Lipp Aff. at ¶ 46.) There were no injuries other than to those who were sprayed with mace. (Defs.' Mot. Summ. J., Ex. 5 at 6, 9, ECF No. 63-25.) No arrests were made. (Id. )
Kallner joined the group of protestors outside of the Statehouse and marched with the group until they returned to the Intersection. (Kallner Dep. 23:15–17, 33:5–7.) There, Kallner stood on a trashcan on the sidewalk of the Intersection's southeast corner for about thirty minutes. (Kallner Dep. 40:11–14; 42:13–16.) Kallner was roughly fifteen feet from where the police were preparing to deploy pepper spray on the protestors in the Intersection. (Id. at 42:8–10.) While standing on the trashcan, Kallner held a sign, took photos, and recorded videos of the demonstration. (Id. at 40:13–14; 42:20–22.) Although police repeatedly ordered the protestors in the Intersection to disperse from 8:15 p.m. to 9:00 p.m., Kallner testified he did not hear any of those orders. (Id. at 42:7.)
When police began deploying mace over the crowd of protestors in the Intersection, Kallner remained on the trashcan. (Id. at 44:2–4.) He "could feel some [ ] stinging on [his] face and [ ] was coughing" from the initial deployment of pepper spray. (Id. at 55:5–7.) As the crowd began dispersing, Kallner climbed down from the trashcan, left the sidewalk, and ran into the Intersection "in the opposite direction of the crowd." (Id. at 44: 7–12.) That is, he ran from the Intersection's southeast corner toward its northwest corner. (Kallner Dep., Ex. B.) While in the Intersection, "there was a police officer that was standing close to [him]." (Kallner Dep. 44:17–18; 45:3–5.) "[U]pset and confused," Kallner asked the officer, who was later identified as Officer Thiel, "[w]hy are you fucking spraying us?" (Id. at 46:9; 44:19–20.) As Officer Thiel and Kallner stood "in the middle of the street," Officer Thiel "held out his arm and sprayed [Kallner] in the face." (Id. at 44:10–11, 21–22.)
Kallner "was in a lot of pain" and "scream[ed] for help." (Id. at 51:20–21.)
Other protestors assisted Kallner to the sidewalk and gave him water and breast milk to flush out his eyes. (Id. at 51:20–52:15.) Kallner then went into an ambulance. (Id. at 52:15–22.) The medic let him sit for a few minutes to calm down but did not treat him. (Id. ) Kallner exited the ambulance, having regained his sight, and received a ride home. (Id. at 56:2–4; 53:17–18.) His pain lasted about twenty-four hours. (Id. at 58:11–13.) His clothes were ruined. (Id. at 59:3–9.) He has since stopped attending street protests because of the incident. (Id. at 59:16–60:3.)
After marching from the Statehouse to the Franklin County courthouses and back, Abdur-Rahim stood with the crowd in the Intersection. (Abdur-Rahim Dep. 65,...
To continue reading
Request your trial