Trial set for George Floyd protesters tear-gassed, pepper-balled by CMPD
A lawsuit accusing Charlotte-Mecklenburg police of trapping protesters on 4th Street in uptown and using chemical munitions on them in June 2020 is scheduled to go to trial in November.
Judge Edwin Wilson Jr. said in Mecklenburg County Superior Court that he would need some time before deciding motions for summary judgment from attorneys on both sides of the lawsuit when he set the trial date Friday.
The summary judgment will determine whether the city of Charlotte, CMPD and individually named police officers can be held liable for damages for their actions on June 2, 2020. That day, nearly six years ago, police fired chemical munitions at mostly peaceful protesters marching through uptown Charlotte in response to the police killing of George Floyd in Minneapolis.
The lawsuit, filed by groups including the NAACP, the American Civil Liberties Union of North Carolina, Charlotte Uprising and individual protesters, described the police actions as an illegal ambush. Because of those actions, the protesters’ attorneys said Friday, the plaintiffs should be able to seek damages at trial Nov. 9.
But defense attorneys argued the protests weren’t as peaceful as plaintiffs’ attorneys portrayed, that officers’ actions were justified, and that the individual officers named in the suit should be entitled to public official immunity and dismissed from the lawsuit.
Attorneys representing both sides walked Wilson through their motions in court Friday.
Plaintiffs’ side
Luke Largess, one of the attorneys representing the protesters, said Friday that the timing of CMPD’s actions was key to proving officers acted unlawfully and were liable for damages.
Using footage from police body cameras, helicopter video and real-time crime center footage, Largess reconstructed police actions on June 2. He also used maps to show the protesters’ path before they were confronted by police at 4th and College streets in uptown. He described how police took actions that night to trap protesters on 4th Street and bombard them with chemical munitions.
He said that despite being told by superiors they could not use munitions to control the crowd under department policy — and despite officers admitting in depositions there was no imminent threat or danger — some officers fired the munitions anyway.
Largess said that regardless of protesters’ actions at other locations in uptown that night, there was no justification for the use of force at 4th Street. By the time the protesters had marched from 5th and McDowell streets to 4th Street, nearly 30 minutes had passed, he said. Footage of the march showed people walking peacefully throughout the city.
By the time protesters reached 4th Street, they were not ignoring police orders because police did not give dispersal orders until after tear gas, stun grenades and pepper balls were fired, Largess said. When the munitions were fired, the crowd dispersed. Despite that, footage shown in court showed officers still firing pepper balls at protesters running away from tear gas and other munitions.
Largess also said there weren’t proper egress points on 4th Street to allow the dispersing crowd to escape.
Largess cited former CMPD Chief Kerr Putney’s deposition, in which Putney said that unless police were facing an imminent danger or threat, those munitions were not supposed to be used. And if officers used them when not in danger or to protect themselves, Putney said, the officers would not be following department protocol.
Largess also criticized the use of sting ball stun grenades on the crowd. He showed the manufacturer’s warning in court. The grenades are meant to be used in high-risk environments, such as hostage rescues or prison violence, the warning said. Because that didn’t apply, their use was improper, he said.
“They’re using that on people who are not committing any crime except marching, ironically, to protest police violence,” Largess said.
Defendants’ side
Attorneys representing the city and department, as well as individual CMPD officers, painted a different picture of the night. Norlan Graves, an attorney with the city of Charlotte, and Lori Keeton, the attorney representing CMPD Sgt. Scott Sherwood, said police experienced violence and civil unrest that night.
Some protesters threw frozen water bottles, rocks and an unknown substance at police that caused some burning, Keeton said. And in the days leading up to the June 2 protests, officers faced additional nights of violence, Graves said. Police were under threat and were within their right to control the crowd.
“The objective of this plan was to disperse the crowd and restore public safety,” Graves said. “And that’s pretty much all it was aimed to do. It was not designed to detain or encircle individuals.”
Graves also disputed that protesters did not have points of egress on 4th Street. He said protesters testified in depositions that there was egress at a nearby parking garage.
If the actions of individual officers went beyond the scope of employment, Graves said, the city is not liable. And because those actions went beyond the scope of employment, he said, the city should have governmental immunity and not be liable for damages beyond the civil liability cap of $1 million.
After Graves spoke, Keeton showed footage in the courtroom in which officers described some of the objects thrown at them, including a rock. Another image showed blue paint on the ground around an officer. Keeton said protesters had been throwing blue paint at police that night.
In another video, recorded by the plaintiff , some protesters were seen climbing on parked cars. Other people lit fireworks, and some were told not to throw objects at police. The protester filming the video accused some people of being paid agitators looking to start confrontations with police.
Keeton said this was proof not all the protesters were acting peacefully.
Keeton said Sherwood was not involved in meetings or planning leading up to the munitions being fired and was not at the 4th Street location when munitions were deployed. The only reason he was named in the lawsuit, she said, was because of what he was caught saying on body camera footage.
“We’re going to hammer their ass,” Sherwood was quoted as saying. “Hey, wave goodbye, they’re all about to get gassed.”
While it was “stupid” of Sherwood to say those things, Keeton said, it was not illegal and does not mean he was responsible for what happened. She compared it to when people forget their microphones are on and accidentally say something in a meeting or on a conference call.
Sherwood was punished “severely,” Keeton said. He was never a bike patrol officer again after that incident, she said.
Because Sherwood was not involved in planning the operation or meetings, and did not use excessive force that night, Keeton said he should be dismissed from the lawsuit under public official immunity.
Stephanie Webster, who represents CMPD officers Christopher Rorie and Nelson Bowling, and Daniel Peterson, who represents officer Robert Dance, took a similar position. Because their clients were not privy to the operation’s planning or meetings, and did not use excessive force, they should be immune from the lawsuit, the attorneys said.
While Rorie was on the scene at 4th Street, Webster said, he did not make the decision to fire munitions. Bowling, she said, was at a warehouse making sure officers had water and handling logistical matters.
Peterson said there was no evidence of malice by Dance and that good faith is presumed for public officers.
“The court need not weigh in to every single element of every single claim, because each and every claim as to Dance’s actions falls under public official immunity,” Peterson said. “There is no forecast of evidence that his actions were malicious.”
Plaintiffs’ side responds
Abraham Schewel, another attorney for the protesters, was the first to push back on the defense. He said Sherwood had been briefed about the operation by supervisors and knew what was about to occur.
Sherwood was made part of the lawsuit because of that, not just because of his words caught on camera, Schewel said.
Additionally, Alex Heroy, another of the plaintiffs’ attorneys, said officers can be held liable for their actions under joint conduct torts. Two or more people can be jointly found negligent for causing injury to another person — even if they were not directly responsible — if they substantially assisted or encouraged others to participate.
The officers were caught on camera participating in some way that night, Heroy said. Dance was caught on camera directing officers on where to throw munitions, for example.
Because the officers acted unlawfully by dispensing munitions when there was no threat, Heroy said, they violated state law. And by violating state law, he said, they acted as individuals outside the scope of their duties as CMPD officers.
After Wilson encouraged the attorneys to meet for mediation, the plaintiffs’ attorneys met with the media outside the courtroom.
“The police cannot trap, gas and shoot peaceful protesters without any provocation, without threats of violence, and it’s just unlawful,” Heroy said. “That’s what we asked the court to determine as a matter of law.”
