U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:20-cv-00535-CRS

Scott et al v. Louisville/Jefferson County Metro Government et al Assigned to: Senior Judge Charles R. Simpson, III Cause: 42:1983 Civil Rights Act

Date Filed: 07/30/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Attica Scott on behalf of themselves and all others similarly situated,

represented by Aaron M. Tucek ACLU of Kentucky 325 W. Main Street, Suite 2210 Louisville, KY 40202 502-581-9746 Email: aaron@aclu-ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ajmel Quereshi NAACP Legal Defense & Educational Fund, Inc. - DC 700 14th Street NW Washington, DC 20005 202-216-5574 Fax: 202-682-1312 Email: aquereshi@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew K. Jondahl Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: ajondahl@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashok Chandran NAACP Legal Defense & Educational Fund, Inc - NY

40 Rector Street, 5th Floor New York, NY 10006 212-965-2238 Fax: 212-226-7592 Email: achandran@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt NAACP Legal Defense & Educational Fund, Inc. - DC 700 14th Street NW Washington, DC 20005 202-216-5568 Fax: 202-682-1312 Email: ckemmitt@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro ACLU of Kentucky 325 W. Main Street, Suite 2210 Louisville, KY 40202 502-581-9746 Fax: 844-274-0570 Email: corey@aclu-ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: eward@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek ACLU of Kentucky 325 W. Main Street, Suite 2210 Louisville, KY 40202 502-581-9746 Fax: 844-274-0570

Email: heather@aclu-ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson NAACP Legal Defense & Educational Fund, Inc - NY 40 Rector Street, 5th Floor New York, NY 10006 212-965-2273 Fax: 212-226-7592 Email: kjohnson@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays ACLU of Kentucky 325 W. Main Street, Suite 2210 Louisville, KY 40202 502-581-9746 Email: mashayla@aclu-ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: awilson@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: sshapiro@ecbawm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Corbin Smith on behalf of themselves and all others similarly situated,

represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kayla Meisner on behalf of themselves and all others similarly situated,

Mashayla R. Hays (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tyler Weakley on behalf of themselves and all others similarly situated,

Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stevie Schauer on behalf of themselves and all others similarly situated,

represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays

Plaintiff
Willa Tinsley on behalf of themselves and all others similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward

Plaintiff
Kentucky Alliance Against Racial and Political Repression on behalf of themselves and all others similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran

Plaintiff

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick Moore

represented by Aaron M. Tucek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew K. Jondahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashok Chandran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Kemmitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earl S. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
O. Andrew F. Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Louisville/Jefferson County Metro Government
Defendant Greg Fischer individually and in his official capacity as Mayor of Louisville

represented by Chris J. Gadansky McBrayer PLLC - Louisville 500 W. Jefferson Street, Suite 2400 Louisville, KY 40202 502-327-5400 Fax: 502-327-5444 Email: cgadansky@mcbrayerfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E. McKiernan , III McBrayer PLLC - Louisville 500 W. Jefferson Street, Suite 2400 Louisville, KY 40202 502-327-5400 Fax: 502-327-5444 Email: jmckiernan@mcbrayerfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chris J. Gadansky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E. McKiernan , III

Defendant Robert Schroeder individually and in his official capacity as Interim Chief of the Louisville Metropolitan Police Department
Defendant LaVita Chavous individually and in her official capacity as Assistant Chief of the Louisville Metropolitan Police Department
Defendant J. Johnson LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICER Defendant Louisville Metropolitan Police Department Officers John Does 115
Defendant Jane Doe 1

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chris J. Gadansky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E. McKiernan , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chris J. Gadansky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E. McKiernan , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chris J. Gadansky (See above for address) TERMINATED: 08/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/30/2020

# Docket Text
1 COMPLAINT against LaVita Chavous, Jane Doe 1, Greg Fischer, J. Johnson, Louisville Metropolitan Police Department Officers John Does 1-15, Louisville/Jefferson County Metro Government, Robert

07/31/2020 07/31/2020
08/11/2020 08/11/2020 08/11/2020 08/11/2020 08/11/2020 08/11/2020

Schroeder Filing fee $ 400, receipt number 0644-3151504., filed by Kayla Meisner, Stevie Schauer, Tyler Weakley, Corbin Smith, Kentucky Alliance Against Racial and Political Repression, Attica Scott, Willa Tinsley. (Attachments: # 1 Cover Sheet) (DJT) (Entered: 07/31/2020)
2 Case Assignment (Random Selection): Case Assigned to Senior Judge Charles R. Simpson. (DJT) (Entered: 07/31/2020)
3 Summons Issued as to LaVita Chavous, Greg Fischer, J. Johnson, Louisville/Jefferson County Metro Government, Robert Schroeder. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). (Attachments: # 1 Summons as to Mayor Greg Fischer, # 2 Summons as to Chief Schroeder, # 3 Summons as to Asst Chief Chavous, # 4 Summons as to J. Johnson) (DJT) (Entered: 07/31/2020)
4 ATTORNEY NOTICE of Deficiency to Aaron Tucek re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice or admission to practice in court. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
5 ATTORNEY NOTICE of Deficiency to Ajmel Quereshi re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) Modified on 8/11/2020 to edit docket text only (KJA). (Entered: 08/11/2020)
6 ATTORNEY NOTICE of Deficiency to Ashok Chandran re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
7 ATTORNEY NOTICE of Deficiency to Christopher Kemmitt re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
8 ATTORNEY NOTICE of Deficiency to Kristen Johnson re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
9 ATTORNEY NOTICE of Deficiency to Andrew K. Jondahl re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)

08/11/2020 08/11/2020 08/11/2020 08/21/2020 08/21/2020 08/21/2020 08/21/2020 08/21/2020

10 ATTORNEY NOTICE of Deficiency to Earl S. Ward re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
11 ATTORNEY NOTICE of Deficiency to O. Andrew F. Wilson re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
12 ATTORNEY NOTICE of Deficiency to Samuel Shapiro re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 8/28/2020. (KJA) (Entered: 08/11/2020)
13 MOTION for Andrew Jondahl to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3167584. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of A. Jondahl, # 2 Exhibit A. Jondahl Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/21/2020)
14 MOTION for Samuel Shapiro to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3167593. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of S. Shapiro, # 2 Exhibit S. Shapiro Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/21/2020)
15 MOTION for Earl Ward to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3167609. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of E. Ward, # 2 Exhibit E. Ward Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/21/2020)
16 MOTION for Andrew Wilson to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3167615. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of A. Wilson, # 2 Exhibit A. Wilson Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/21/2020)
17 ANSWER to 1 Complaint, with Jury Demand by LaVita Chavous, Greg Fischer, Louisville Metropolitan Police Department Officers

08/21/2020 08/21/2020 08/25/2020 08/25/2020
08/25/2020 08/25/2020

John Does 1-15, Louisville/Jefferson County Metro Government, Robert Schroeder. (Gadansky, Chris) (Entered: 08/21/2020)
18 Partial MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants LaVita Chavous, Greg Fischer, Louisville/Jefferson County Metro Government, Robert Schroeder (Attachments: # 1 Memorandum in Support of Partial Motion to Dismiss, # 2 Proposed Order in Support of Partial Motion to Dismiss) (Gadansky, Chris) (Entered: 08/21/2020)
19 NOTICE of Docket Correction by LaVita Chavous, Greg Fischer, Louisville/Jefferson County Metro Government, Robert Schroeder re 17 Answer to Complaint (Gadansky, Chris) (Entered: 08/21/2020)
20 NOTICE of Appearance by James E. McKiernan, III on behalf of LaVita Chavous, Greg Fischer, Louisville/Jefferson County Metro Government, Robert Schroeder (McKiernan, James) (Entered: 08/25/2020)
21 MOTION for Temporary Restraining Order by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Black Lives Matter Louisville Declaration, # 2 Exhibit Attorney Heather Gatnarek Declaration, # 3 Exhibit Ex. A to Gatnarek Decl. Albert Complaint, # 4 Exhibit Ex. B to Gatnarek Decl. LMPD SOP 9.1.8, Nov. 2019, # 5 Exhibit Ex. C to Gatnarek Decl. LMPD SOP 9.1.9, June 2020, # 6 Exhibit Ex. D to Gatnarek Decl. Louisville Metro Council Order, July 14, 2020, # 7 Exhibit Ex. E to Gatnarek Decl. screenshots of Until Freedom Facebook page, # 8 Exhibit Ex. F to Gatnarek Decl. LMPD General Memorandum #20-011, # 9 Exhibit Willa Tinsley Declaration + Exhibit (photo), # 10 Exhibit Corbin Smith Declaration, # 11 Exhibit Tyler Weakley Declaration, # 12 Exhibit Stevie Schauer Declaration, # 13 Exhibit Patrick Moore Declaration + Exhibit (photo), # 14 Exhibit Kayla Meisner Declaration, # 15 Exhibit Rep. Attica Scott Declaration, # 16 Proposed Order) (Gatnarek, Heather) (Entered: 08/25/2020)
22 CERTIFICATE OF SERVICE by Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley re 21 MOTION for Temporary Restraining Order (Gatnarek, Heather) (Entered: 08/25/2020)
23 TEXT ORDER by Senior Judge Charles R. Simpson, III on 8/25/2020, GRANTING 13 14 15 and 16 Motions for Andrew K. Jondahl, Earl Ward, Samuel Shapiro, and O. Andrew F. Wilson to Appear Pro Hac Vice on behalf of the Plaintiffs.

08/26/2020 08/26/2020 08/26/2020 08/26/2020 08/27/2020 08/28/2020

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel, QC(RLK) (Entered: 08/25/2020)
24 ORDER for proceedings held before Senior Judge Charles R. Simpson III: Motion Hearing held on 8/25/2020 re 21 MOTION for Temporary Restraining Order filed by Corbin Smith, Kentucky Alliance Against Racial and Political Repression, Tyler Weakley, Attica Scott, Kayla Meisner, Stevie Schauer, Willa Tinsley. Plaintiffs' motion for a Temporary Restraining Order is DENIED. (Court Reporter: Dena Legg) cc: Counsel (ALS) (Entered: 08/26/2020)
25 MOTION for Ashok Chandran to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3170553. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of A. Chandran, # 2 Exhibit A. Chandran Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/26/2020)
26 MOTION for Ajmel Quereshi to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3170564. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of A. Quereshi, # 2 Exhibit A. Quereshi Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/26/2020)
27 MOTION for Christopher Kemmitt to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3170568. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of C. Kemmitt, # 2 Exhibit C. Kemmitt Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/26/2020)
28 MOTION for Kristen Johnson to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644-3171480. by Plaintiffs Kentucky Alliance Against Racial and Political Repression, Kayla Meisner, Stevie Schauer, Attica Scott, Corbin Smith, Willa Tinsley, Tyler Weakley (Attachments: # 1 Exhibit Declaration of K. Johnson, # 2 Exhibit K. Johnson Affidavit and Certificate of Good Standing, # 3 Proposed Order) (Gatnarek, Heather) (Entered: 08/27/2020)
29 FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 08/25/2020, before Judge Charles R. Simpson, III. Court Reporter Dena Legg, Telephone number 502-625-3778. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.

08/28/2020 08/28/2020
09/11/2020 09/21/2020 09/22/2020

After that date it may be obtained through PACER. Redaction Request due 9/18/2020. Redacted Transcript Deadline set for 9/28/2020. Release of Transcript Restriction set for 11/27/2020. (DL) (Entered: 08/28/2020)

30 Notice of Filing Official Transcript re 29 Transcript - Court Official,,. Please review the complete Notice for instructions. (DL) (Entered: 08/28/2020)

31 TEXT ORDER by Senior Judge Charles R. Simpson, III on 8/28/2020, GRANTING 25 , 26 and 27 Motions for Ashok Chandran, Ajmel Quereshi and Christopher Kemmitt to Appear Pro Hac Vice on behalf of the Plaintiffs. This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached. cc: Counsel(RLK) (Entered: 08/28/2020)

AMENDED COMPLAINT and Jury Trial Demand against All

32

Defendants, filed by Kayla Meisner, Stevie Schauer, Tyler Weakley,

Corbin Smith, Kentucky Alliance Against Racial and Political

Repression, Attica Scott, Willa Tinsley, Patrick Moore. (Chandran,

Ashok) Modified on 9/14/2020 to add additional filer (DLW).

(Entered: 09/11/2020)

33

ANSWER to 32 Amended Complaint, by LaVita Chavous, Greg

Fischer, Louisville/Jefferson County Metro Government, Robert

Schroeder. (Gadansky, Chris) (Entered: 09/21/2020)

34 Partial MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AMENDED by Defendants LaVita Chavous, Greg Fischer, Louisville/Jefferson County Metro Government, Robert Schroeder (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Gadansky, Chris) (Entered: 09/22/2020)

 
 Case 3:20-cv-00535-CRS Document 1 Filed 07/30/20 Page 1 of 46 PageID #: 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY

ATTICA SCOTT, CORBIN SMITH, KAYLA MEISNER, TYLER WEAKLEY, STEVIE SCHAUER, WILLA TINSLEY, and the KENTUCKY ALLIANCE AGAINST RACIAL AND POLITICAL REPRESSION, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, GREG FISCHER, individually and in his official capacity as Mayor of Louisville, ROBERT SCHROEDER, individually and in his official capacity as Interim Chief of the Louisville Metropolitan Police Department, LaVITA CHAVOUS, individually and in her official capacity as Assistant Chief of the Louisville Metropolitan Police Department, and LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICER “J.” JOHNSON, LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICERS JOHN DOES #1-#15 and JANE DOE #1, in their individual capacities,
Defendants.

Civil Action No. _________
COMPLAINT AND JURY TRIAL DEMAND

PRELIMINARY STATEMENT “[O]ur constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society.” Cox v. State of La., 379 U.S. 559, 574 (1965). Rarely before has this principle been as readily apparent as it is today; following the senseless killings of George Floyd,

Case 3:20-cv-00535-CRS Document 1 Filed 07/30/20 Page 2 of 46 PageID #: 2
Breonna Taylor, and countless other Black individuals at the hands of police, protesters in all fifty states are demanding police accountability and reform.
Rather than treating its peaceful protesters as important parts of the democratic process protected by the Constitution, the City of Louisville has chosen to forcibly silence them—often using military-type weapons and tactics that resemble those used by authoritarian regimes to stifle dissent. In the days following the death of George Floyd, who was killed by Minneapolis police officers on May 25, 2020, a key demand for protesters who took to the streets around the country was justice for Breonna Taylor, who was killed by Louisville police officers in her own home on March 13, 2020. Louisville police officers sought to quell these demonstrations through the sustained use of tear gas, flash bangs, pepper balls, and other forms of military-grade technology. This combat-style response led to yet another senseless death: on May 31, 2020, Louisville police and the National Guard fired eighteen live rounds at David McAtee, a local Black restaurant owner, killing him. Since then, countless peaceful protesters—including elected officials and local educators—have been shot, gassed, beaten, and arrested solely for making their voices heard. Louisville police officers also abused the city’s curfew order while it was in effect, employing force to arrest or disperse people hours before they were required by the curfew order to clear the streets. And to this day, both Louisville’s Mayor and Kentucky’s Governor have defended the police department’s conduct.
Plaintiffs are a diverse group of individuals who have come together to exercise their rights to protest and demand change from their government. For that, Louisville police officers have subjected them to shocking and violent levels of force. Plaintiff Corbin Smith was tear gassed, beaten with batons, and forced to beg for his life while an officer kneeled on his neck.
2

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Plaintiff Stevie Schauer was shoved to the ground and violently beaten by officers who saw her recording their misconduct; friends who tried to help her were shot with pepper balls.
Their experiences are just a few examples of the sustained violence that Louisville has unleashed on its citizens. Plaintiffs now bring this suit, on behalf of themselves and all others similarly situated, to guarantee and protect their constitutional right to demand change from their government at this singular moment in history.
PARTIES 1. Plaintiff Attica Scott is a citizen of the United States and currently resides in Kentucky. She currently serves in the Kentucky House of Representatives, representing the 41st District. 2. Plaintiff Corbin Smith currently resides in Indiana. 3. Plaintiff Kayla Meisner currently resides in Kentucky. 4. Plaintiff Tyler Weakley currently resides in Indiana. 5. Plaintiff Stevie Schauer currently resides in Kentucky. 6. Plaintiff Willa Tinsley currently resides in Kentucky. 7. Plaintiff Kentucky Alliance Against Racial and Political Repression (“KAARPR”) is a 501(c)(3) organized under the laws of Kentucky that has more than 900 duespaying members. Its mission is to “inform the public and provide a channel for public debate concerning the human and constitutional rights of all people; to bring together diverse groups of people to support those repressed for racist or political reasons; [and] to work to end racist practices in the community and government.”1 The organization’s work is focused on, among other things, combating the use of excessive force by police, including against protestors;
1 About Us, Kentucky Alliance Against Racial and Political Repression, http://www.kentuckyalliance.org/about.html (last visited July 30, 2020).
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challenging cruel and unusual conditions of confinement in prisons and jails in Kentucky; limiting the disproportionate effect of the criminal justice system on Black individuals; and improving education access and opportunity for Black and Brown children in the greater Louisville area.
8. Since its founding more than 40 years ago, KAARPR has, among other things, highlighted the stories of victims of police abuse as a means of drawing attention to the larger systemic issues discussed above. For example, over twenty years ago, KAARPR launched a campaign around the death of Adrien Reynolds, who was subjected to excessive force during his arrest and then killed by correctional officials.
9. KAARPR is also a leading member of Louisville Citizens Against Police Abuse, a coalition of local organizations united to fight police brutality in Black and Brown communities in Louisville.
10. Defendant Louisville/Jefferson County Metro Government (“City of Louisville”) is a municipality organized and existing under the laws of the State of Kentucky. Defendant City of Louisville, acting through the Louisville Metropolitan Police Department (“LMPD”), is responsible for the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, the City of Louisville is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky.
11. Defendant Greg Fischer is the Mayor of the City of Louisville. In that capacity, he is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD
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personnel. In addition, Defendant Fischer is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky.
12. Defendant Robert Schroeder is the Interim Chief of the Louisville Metropolitan Police Department. Defendant Schroeder was appointed to this role on or about June 1, 2020. Before his appointment as Interim Chief, Defendant Schroeder was Deputy Chief of the Louisville Metropolitan Police Department. In his capacity as both Interim Chief and Deputy Chief, he is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, Defendant Schroeder is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky, including by conducting thorough and expeditious investigations into officer misconduct. At all relevant times, Defendant Schroeder was acting within the scope of his employment and under color of state law.
13. Defendant LaVita Chavous is an Assistant Chief of the Louisville Metropolitan Police Department. In that capacity, she is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, Defendant Chavous is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky, including by conducting thorough and expeditious investigations into officer misconduct. At all relevant times, Defendant Chavous was acting within the scope of her employment and under color of state law.
14. Defendants LMPD Officer “J.” Johnson and LMPD Officers John Does #1-15 and Jane Doe #1, (collectively, “Defendant Officers” or “Officers”) are police officers employed by
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the City of Louisville. In this role, Defendant Officers were duly appointed and acting officers, servants, employees and/or agents of Louisville. At all relevant times, they were acting in the scope of their employment and under color of state law.
JURISDICTION AND VENUE 15. This action arises under the First, Fourth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Kentucky state law. 16. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), and 1367. 17. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e) because at least some Defendants reside in this district and a substantial part of the acts and omissions giving rise to this action took place in this district.
JURY TRIAL DEMAND 18. Plaintiffs demand trial by jury.
FACTS The Killings of Breonna Taylor and George Floyd Spur Nationwide Protests
19. Over the past several months, a number of high-profile instances of police killing unarmed Black people have shocked the nation’s conscience.
20. Shortly after midnight on March 13, 2020, three LMPD police officers shot and killed Breonna Taylor, a Black 26-year-old emergency medical technician who lived in Louisville.
21. The LMPD officers executed a no-knock warrant at Ms. Taylor’s apartment. Upon entry, the officers fired over twenty rounds at Ms. Taylor and her boyfriend.
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22. Ms. Taylor, who was unarmed and sleeping in bed, was struck eight times—but did not die immediately. Instead, for five or six minutes, she lay bleeding in her bed, her boyfriend pleading unsuccessfully for the officers to help her. Ms. Taylor died from her injuries.
23. Ms. Taylor’s story quickly captured national attention. Calls for justice for her killing began to grow.
24. In response, the LMPD opened an internal investigation into whether its officers violated any departmental policies. The Attorney General of Kentucky has opened an investigation into possible criminal charges against the officers. And the Federal Bureau of Investigation has opened a separate probe into the officers’ conduct.
25. To date, however, the officers who killed Breonna Taylor have not been arrested. Defendant Schroeder has initiated termination procedures against just one of the three officers involved.
26. Less than two months later, on May 25, 2020, officers from the Minneapolis Police Department killed George Floyd while arresting him on suspicion of passing a counterfeit twenty-dollar bill.
27. A bystander captured the killing on video; for nearly eight minutes after Mr. Floyd had been placed in handcuffs, a police officer kneeled on Mr. Floyd’s neck while three other officers stood by and watched.
28. Mr. Floyd repeatedly begged for mercy, pleading that he could not breathe. He called out for his mother. His last words were “please, I can’t breathe.”
29. Video of Mr. Floyd’s murder spread almost immediately. Within days, his story had become the defining topic of national discourse. Elected officials and public figures of all political affiliations denounced the police officers’ actions.
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30. All four of the officers involved in Mr. Floyd’s killing have been arrested and criminally charged.
31. The killings of Ms. Taylor and Mr. Floyd—emblematic of the widespread pattern of police violence against unarmed Black people—touched a nerve in communities across the country, sparking mass protests about how police interact with Black people.
32. Within a week of Mr. Floyd’s killing, large-scale demonstrations had begun in all fifty states. Those protests remain ongoing. Protests Begin in Louisville, Prompting Immediate and Egregious Use of Force by LMPD May 28, 2020
33. On May 28, 2020, LMPD released the audio of the 911 call placed by Breonna Taylor’s boyfriend the night she was killed.
34. That evening, large-scale demonstrations began in Louisville. At approximately 8:00 p.m., protesters carrying signs reading “Justice for Breonna” and chanting “Breonna was asleep” marched through downtown Louisville to gather near the Louisville Metro Hall.2
35. Protesters were met by a fleet of armed LMPD officers clad in riot gear. 36. At approximately 11:15 p.m., a handful of protesters threw plastic water bottles at the LMPD officers. 37. In response, LMPD officers fired a combination of pepper balls (pepper-spray projectiles launched using guns or similar weapons) and live ammunition into the crowd of protesters, nearly all of whom were protesting peacefully. Seven people were hit with live bullets. Protesters began to disperse.
2 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020 at 10:56 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/28/breonna-taylor-shooting-what-know-louisville-protest/5280762002/.
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38. At least one of the injured protesters claimed that he was shot in the back of the head by a police officer. He has sued both LMPD and the Kentucky State Police. See Albert v. Unknown Individual Kentucky State Police Officers, et al., No. 3:20-cv-00418 (W.D. Ky.).
39. LMPD officers then began to launch canisters of tear gas into the crowd. 40. LMPD subsequently claimed that the tear gas and gunshots were necessary to prevent assaults on officers. But no officers were reported as injured during the protests.3 41. The LMPD’s use of tear gas against peaceful protestors on May 28, 2020 was widely reported in the media. 42. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas against peaceful protestors on May 28, 2020. May 29, 2020 43. Demonstrations continued the next day, on May 29, 2020. An even larger group of protesters marched through downtown Louisville starting in the late afternoon. Many of the protesters were young teenagers.4 44. By the early evening, LMPD officers began using flash grenades, tear gas, and pepper balls on the largely peaceful crowd. 45. Plaintiff Attica Scott and her daughter were present at this protest; both were demonstrating peacefully but were shoved by police and then hit with tear gas.
3 Mike Baker, 7 People Shot at Louisville Protest Over the Death of Breonna Taylor, N.Y. Times (May 29, 2020), https://www.nytimes.com/2020/05/29/us/louisville-protest-shooting-breonna-taylor.html. 4 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020, 10:56 p.m., updated May 31, 2020, 11:00 p.m.), https://www.courierjournal.com/story/news/politics/metro-government/2020/05/28/breonna-taylor-shooting-what-know-louisvilleprotest/5280762002/.
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46. For over four hours, flash grenades launched by LMPD “volleyed through the air like cannon-fire” while tear gas deployed by LMPD “wafted across entire city blocks.”5
47. LMPD officers fired pepper balls indiscriminately into the crowd. 48. As one newspaper reported, “[b]y 10 p.m., downtown Louisville looked like a war zone.”6 49. LMPD officers targeted journalists who were covering the chaos, firing pepper bullets at groups of reporters who were videotaping the scene.7 50. Upon information and belief, no LMPD officers were disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous as a result of using tear gas, flash grenades, or pepper bullets against peaceful protestors on May 29, 2020. May 30, 2020 51. On May 30, 2020, Mayor Greg Fischer instituted a 9:00 p.m. citywide curfew and called in the National Guard.8 52. Protesters began to gather downtown for peaceful demonstrations in the afternoon on May 30. Some volunteers brought stockpiles of water and milk to use both as eyewash due to LMPD’s indiscriminate use of tear gas, as well as to provide essential drinking water for the protest on a long sunny day. They stored these stockpiles in Jefferson Square Park for all protesters to use.
5 Mandy McLaren, A traumatized generation: Louisville’s youth demand racial justice during mass protests, Louisville Courier Journal (May 30, 2020, 5:31 p.m.), https://www.courierjournal.com/story/news/2020/05/30/breonna-taylor-protest-louisvilles-youth-demand-racial-justice/5291030002/. 6 Id. 7 @wave3news, “WAVE 3 News reporter Kaitlin Rust appeared to have been hit by rubber bullets reportedly fired by an LMPD officer during a protest in downtown Louisville,” Twitter (May 29, 2020, 10:23 p.m.), https://twitter.com/wave3news/status/1266555731731415040?s=20. 8 Darcy Costello, Mayor Fischer sets curfew calls in National Guard for Breonna Taylor protests,” Louisville Courier Journal (May 30, 2020, 9:49 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/30/mayor-fischer-sets-breonna-taylor-protest-curfew-calls-national-guard/5290690002/.
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53. At approximately 7:30 p.m., while protesters were peacefully demonstrating, a group of plainclothes LMPD police officers began destroying the protesters’ stockpiles without explanation.9
54. Upon information and belief, LMPD officers intentionally destroyed the protesters’ supplies to discourage protesters from remaining at the demonstrations.
55. Upon information and belief, LMPD officers had decided to use tear gas on protesters before they began to destroy the protesters’ supplies.
56. At approximately 8:00 p.m.—an hour before the official curfew and thirty minutes after destroying the protesters’ stockpiles of water and milk—LMPD officers began to launch tear gas into the crowd of peaceful protesters and beat them back with batons. At the time, some protesters had lain down on the street while chanting for police accountability.
57. LMPD officers launched tear gas at a crowd of protesters, including former State Representative Charles Booker, who were standing in a place several yards away from the riot line.10
58. Approximately 40 protesters were arrested.11 59. When asked about LMPD’s conduct, Defendant Fischer conceded that the protesters were nonviolent, but he nonetheless defended the use of tear gas and batons by saying
9 Natalie Neysa Alunda, Police officers in Louisville smash milk jugs and water bottles at Breonna Taylor protest,” Louisville Courier Journal (May 30, 2020, 9:43 p.m.), https://www.courierjournal.com/story/news/local/2020/05/30/breonna-taylor-protest-louisville-police-smash-protesterssupplies/5295840002/. 10 Charles Booker (@Booker4KY), “We were yards away. No one was confrontational. It was not 9p. They started throwing gas at us anyway. I wish I could say this is unbelievable,” Twitter (May 30, 2020, 8:52 p.m.), https://twitter.com/Booker4KY/status/1266895243913367553?s=20. 11 Rob Byers, Curfew remains in effect for Louisville for at least another night amid protests, Louisville Courier Journal (May 31, 2020, 11:54 a.m.), https://www.courier-journal.com/story/news/local/2020/05/31/breonna-taylorprotests-louisville-curfew-remains-effect-sunday/5299457002/.
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the demonstration “looked like it was going to be taking a turn for the worse,” and that police used their judgment.12
60. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas and batons on nonviolent protestors. May 31, 2020
61. The next evening saw similar violent police responses to largely peaceful protests. 62. In the early evening on May 31, 2020, approximately 1,000 protesters gathered at the Muhammad Ali Center in downtown Louisville. From there, they marched to Jefferson Square Park, arriving shortly before 8:00 p.m.—again an hour before official curfew. 63. Almost immediately, LMPD officers arrived at the park and decreed that the demonstration was an unlawful assembly without providing any further explanation. 64. Just minutes later, LMPD officers began firing flash bangs (explosive devices commonly used by militaries, which cause temporary blindness, deafness, and loss of balance) and tear gas into the peaceful crowd, forcing protesters out of the park and onto the surrounding streets. 65. LMPD officers also fired projectiles at people holding innocuous objects like umbrellas. 66. As protesters got into their cars to drive away from the protest, LMPD officers lined up on an overpass and fired at cars, breaking the windows of several vehicles.13
12 Darcy Costello, Breonna Taylor protestors question police tactics used prior to Louisville’s curfew time, Louisville Courier Journal (May 31, 2020, 5:50 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/31/breonna-taylor-protesters-question-lmpd-tactics-against-saturday-rally/5300642002/. 13 Painkiller Gillz (@Itz5500Gillz), “This is LMPD shooting at peoples vehicles as they tried to go home from the protest…they was us dead in Louisville, ky,” Twitter (June 1, 2020, 9:52 a.m.), https://twitter.com/Itz5500Gillz/status/1267454024288292867.
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67. Approximately 100 protesters were arrested and held in police custody. 68. LMPD further defended the decision to use tear gas to disperse the crowd prior to the start of the official city-wide curfew, by claiming that “people with leaf blowers [were] in the crowd. We know those are used for things like dispensing powder chemicals and for blowing gas back toward police.”14 City officials also claimed, without providing any evidence, that leaf blowers were loaded with bleach.15 69. Later that evening, and two and a half miles from the site of the protests downtown, LMPD officers and the National Guard shot and killed David McAtee while attempting to disperse a small social gathering in the parking lot of Mr. McAtee’s restaurant. 70. Upon encountering the group, LMPD officers and the National Guard began firing pepper balls. One of the pepper balls came dangerously close to striking Mr. McAtee’s niece in the head. 71. Mr. McAtee, in response, drew a handgun and fired a warning shot into the air. 72. Approximately eight seconds later, LMPD and National Guard officers fired eighteen live rounds at Mr. McAtee; one bullet from a National Guard officer struck Mr. McAtee, killing him.16
14 Hayden Ristevski (@HaydenWDRB). “Metro Council President David James tells WDRB ‘police saw people approaching that had leaf blowers loaded wth bleach that was intended to blow at police. So they sent out the tear gas.’ James says police were trying to disperse the crowd because that. UPDATE: response from @LMPD spokesperson…” Twitter (May 31, 2020, 10:24 p.m.), https://twitter.com/HaydenWDRB/status/1267280879614857219?s=20. 15 Brooks Holton, Protestors in Louisville question why police fired tear gas before curfew, WDRB Louisville, KY (May 3, 2020), https://www.wdrb.com/news/protesters-in-louisville-question-why-police-fired-tear-gas-beforecurfew/article_50da8e76-a3a9-11ea-95d8bf6a8ed76863.html?utm_medium=social&utm_source=email&utm_campaign=user-share. 16 Billy Kobin and Kala Kachmar, Investigation launched into LMPD. National Guard fatal shooting of West End business owner, Louisville Courier Journal (June 1, 2020, 8:37 a.m.), https://www.courierjournal.com/story/news/2020/06/01/beshear-authorizes-investigation-into-louisville-police-national-guardshooting/5306733002/.
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73. None of the LMPD officers had turned on their body cameras, despite a mandate to do so in LMPD’s own operating policies.
74. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas, flash bangs, pepper balls, and other projectiles on peaceful protesters. June 1, 2020
75. The next day, on June 1, 2020, Defendant Schroeder was appointed as Interim Chief of the LMPD.
76. That evening, protesters again congregated in Jefferson Square Park. 77. The demonstration was peaceful; protesters and police officers even linked arms at points.17 78. Nonetheless, at 10:00 p.m., officers fired tear gas and pepper balls into the crowd to disperse the protesters. 79. The next day, on June 2, 2020, one LMPD officer, Officer Katie Crews, posted a photo of a protester offering her flowers on her social media page and wrote, “I hope the pepper balls that she got lit up with a little later on hurt. Come back and get ya some more ole girl, I’ll be on the line again tonight.”18
17 Lucas Aulbach, The morning after: What happened at Monday’s David McAtee and Breonna Taylor protests, Louisville Courier Journal (June 2, 2020, 6:31 a.m.), https://www.courierjournal.com/story/news/local/2020/06/02/david-mcatee-breonna-taylor-protests-louisville-mondayrecap/5315267002/. 18 LMPD officer under investigation after Facebook post about protestor, WDRB Louisville, KY (June 2, 2020), https://www.wdrb.com/news/lmpd-officer-under-investigation-after-facebook-post-aboutprotester/article_b295d622-a4d8-11ea-a7a4-931a2800a02d.html.
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80. Officer Crews was one of the LMPD officers involved in the shooting death of David McAtee just two days prior, but she was allowed to continue in her duties.19
81. Although Officer Crews is under investigation for her social media post, upon information and belief, no LMPD officers have been investigated or disciplined by Defendants Fischer, Schroeder, or Chavous for using tear gas and pepper balls on peaceful protesters. Defendants Fischer, Schroeder, and Chavous Approve of and Sanction LMPD’s Use of Force, Resulting in Continued Use of Force by LMPD Officers
82. Upon information and belief, Defendants Fischer, Schroeder, and Chavous knew and, either explicitly, or through acquiescence, approved of LMPD’s decision to use tear gas, flash bangs, pepper balls, batons, and other forms of force on protesters between May 28, 2020 and June 1, 2020.
83. The version of LMPD’s Standard Operating Procedures that was in effect at the time required supervisors—including Defendants Chavous and Schroeder—to be notified any time chemical agents, including pepper balls, were deployed.20
84. LMPD’s Standard Operating Procedures also required approval from a commanding officer—such as Defendants Schroeder and Chavous—prior to using any chemical agents, including pepper balls.21
85. LMPD’s conduct came under intense media scrutiny almost immediately. But Defendants Fischer, Schroeder, and Chavous have done nothing to correct LMPD’s illegal course, instead acquiescing to LMPD’s use of violent force on peaceful protesters.
19 Billy Kobin and Kala Kachmar, Investigation launched into LMPD. National Guard fata shooting of West End business owner, Louisville Courier Journal (June 1 2020, 8:37 a.m.), https://www.courierjournal.com/story/news/2020/06/01/beshear-authorizes-investigation-into-louisville-police-national-guardshooting/5306733002/. 20 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES (“SOP”) § 3.1.1 (May 31, 2004). 21 SOP § 9.1.8 (Nov. 7, 2019).
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86. Defendant Fischer has defended his and LMPD’s prior decisions, despite the results, and has consistently refused to take meaningful action to protect protesters from unlawful uses of force.
87. On May 30, 2020, just hours after LMPD officers destroyed peaceful protesters’ stockpiles of water and milk, arbitrarily enforced curfew restrictions over an hour earlier than announced, and launched tear gas at dispersing crowds as described above, Defendant Fischer issued a statement thanking LMPD for “show[ing] discipline, restraint and professionalism under extremely volatile circumstances.” He then continued “to thank the law enforcement who came in to assist from other agencies,” as well.22
88. In the same statement, Defendant Fischer stated that although he respected the right to protest peacefully, he instructed Louisville residents to “stay home.”
89. When asked at a news conference about LMPD’s destruction of protesters’ supplies, Defendant Fischer defended LMPD’s conduct, speculating that police may have believed there were flammable materials hidden among milk and water.23 Defendant Fischer did not explain, and has not explained, any basis for such a conclusion.
90. Defendant Fischer has repeatedly defended LMPD’s use of tear gas on protesters. In a statement on June 2, 2020, Defendant Fischer’s spokesperson, Jean Porter, said that although the Mayor was “sorry that some peaceful protesters were caught up in that,” LMPD is there “to
22 Mayor Greg Fischer’s statement on May 29 protests, LouisvilleKY.Gov (May 30, 2020), https://louisvilleky.gov/news/mayor-greg-fischer%E2%80%99s-statement-may-29-protests. 23 Amina Elahi, Louisville Mayor Claims, Without Details, Protestors’ Seized Supplies were Hazardous, WFPL News Louisville (May 31, 2020), https://wfpl.org/louisville-mayor-claims-without-details-protesters-seizedsupplies-were-hazardous/.
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protect public safety and keep order, and they make the decision to use tear gas when they believe that is in jeopardy.”24
91. On June 3, 2020, Defendant Fischer issued a statement praising LMPD for “putting in long hours,” while “suffering insults and assaults” in dealing with protests. The Mayor continued: “They are frustrated . . . I absolutely respect that. That doesn’t change my appreciation of the work they are doing, as I’ve expressed time and time again.”25
92. On June 10, 2020, in response to pressure from the public and the Louisville Metro Council, Defendant Schroeder announced that LMPD officers would no longer be permitted to use tear gas without his approval.26
93. The June 27, 2020 amendments to LMPD’s Standard Operating Procedures make no reference to this new restriction.27
94. In the face of mounting public pressure, on June 15, 2020, Defendant Fischer apologized for the use of tear gas against protesters, and stated that, as a result, he would be instituting needed reforms to the LMPD’s use of force practices. But the very next day, in response to criticism from the LMPD, Defendant Fischer walked back his promise, stating that
24 Andrew Wolfson and Darcy Costello, Mayor Fischer says Louisville welcomes peaceful protest. Why was one cleared with tear gas? Louisville Courier Journal (June 2, 0202, 6:36 a.m.), https://www.courierjournal.com/story/news/2020/06/02/kentucky-leaders-question-why-louisville-police-tear-gassedprotesters/5312665002/. 25 Taylor Weiter and Heather Fountaine, Watch: Louisville police walk out on Mayor Greg Fischer, FOP confirms, WHAS11 ABC Louisville, KY (June 3, 2020, 8:07 p.m.), https://www.whas11.com/article/news/local/louisvillepolice-fop-mayor-fischer/417-cddce593-b5dc-47e3-836b-25ca773e7109. 26 Tessa Duvall, Sarah Ludd and Ben Tobin, Louisville police roundup: Tear gas limits, detective sidelined, community policing survey, Louisville Courier Journal (June 10, 2020, 11:27 a.m.), https://www.courierjournal.com/story/news/local/2020/06/10/louisville-police-cant-use-tear-gas-future-without-directorder/5333275002/. 27 SOP § 9.1.9 (June 27, 2020) (using same language as prior version of SOP).
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he had not instructed and would not instruct officers to “stand down” and that Defendant Schroeder was responsible for determining the appropriate course of action.28
95. Upon information and belief, since June 15, 2020, Defendant Schroeder has not implemented any changes to LMPD’s use-of-force policies to better protect protesters.
96. At a media briefing on May 31, 2020, Defendant Chavous blamed the violence on “anarchists” who intended to cause chaos—even though she identified no actual violent acts by protesters.29
97. At that same conference, Defendant Chavous defended the decision to fire on individuals carrying umbrellas, saying that umbrellas “can be used as weapons.”30
98. Upon information and belief, Defendants Fischer, Schroeder, and Chavous have taken no action to reform LMPD’s use-of-force policies or otherwise curtail LMPD’s use of force against peaceful protesters beyond the announcement regarding central approval of tear gas usage. Defendant City of Louisville’s Ongoing Use of Force and Mass Arrests to Quell Protest and Prevent Recording
99. Following two weeks of relative calm between police and protesters, on June 15, 2020, the LMPD officers resumed their use of aggressive tactics and potentially lethal weapons on protesters.
28 Ragsdale, Travis, Mayor Fischer denied claim that he’s giving Louisville police ‘stand down’ orders at protests, WDRB Louisville, KY (June 16, 2020), https://www.wdrb.com/news/mayor-fischer-denies-claim-that-hes-givinglouisville-police-stand-down-orders-at-protests/article_4307b4b2-afe4-11ea-83cf-23b024a8834c.html. 29 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020, 10:56 p.m., updated May 31, 2020, 11:00 p.m.), https://www.courierjournal.com/story/news/politics/metro-government/2020/05/28/breonna-taylor-shooting-what-know-louisvilleprotest/5280762002/. 30 Lucas Aulbach, From tense to touching moments, here’s how Louisville’s protests went down Sunday night, Louisville Courier Journal (June 1, 2020, 6:18 a.m.), https://www.courierjournal.com/story/news/local/2020/06/01/breonna-taylor-protest-what-happened-sunday-louisville/5305156002/.
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100. Throughout that afternoon and evening, LMPD officers deployed smoke grenades, pepper rounds, flash bangs, and a sound cannon against protesters. They also continued to target individuals, including members of the press, who were documenting the protests and the police response.
101. In the late afternoon of June 15, a small group of peaceful protesters was gathered near 9th Street and W. Chestnut Street. A line of LMPD officers in helmets, armor, and riot shields moved toward the protesters, ordering them to move back. When the protesters did not leave, the police marched north on 9th Street firing pepper balls and impact rounds toward the crowd.
102. As the police moved down the road, they approached Plaintiff Schauer, who was standing still on the sidewalk and was recording the officers with her cellphone. Two officers walked over to her, threw her to the ground, and fired pepper balls at protesters who attempted to help her. An officer then arrested Plaintiff Schauer.
103. The police eventually moved down to the area around W. Jefferson Street and 7th Street, near LMPD headquarters, at which point the police took several steps backwards. The protesters cheered, thinking that the police were backing off. Instead, the police fired a round of pepper balls into the crowd.
104. Shortly thereafter, police used a long-range acoustic device (“LRAD”), a sonic weapon that deploys a high-frequency sound wave, on peaceful protesters.
105. During the protests, a number of riot police gang-tackled a man in the middle of the road. The officers’ actions were captured by a security guard at the Hall of Justice, who recorded it on his cellphone camera from behind a window. As the guard recorded the activity, an officer fired a pepper ball at him, striking and cracking the window near where the guard had
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been standing. LMPD confirmed that an officer had fired at the security guard. The guard told Buzzfeed News that he had not reported the incident because he feared retaliation from the police.31
106. Later that night, another officer ran his car into a peaceful protester. The man told WFPL, “I watched [the officer] look at his back up cam and he ran right into me, literally.”32
107. Police use of force against peaceful protesters continued throughout the week. On the morning of Wednesday, June 17, 2020, police again fired pepper balls at peaceful protesters on multiple occasions. One officer shot a reporter from the Courier Journal, who was recording the protests, with a pepper ball.
108. On Thursday, June 18, 2020, the police used both peppers balls and LRADs against peaceful protesters again. The police reportedly shot one protester in the eye with a pepper ball. Another protester, who was sleeping in the park, awoke to an officer pointing a Glock firearm in his face.
109. LMPD officers have also continued to engage in mass arrests of protesters, many of whom have had charges subsequently dropped. In total, between May 28, 2020 and July 24, 2020, over 500 protesters have been arrested.33
31 Amber Jamieson, Police Shot At A Man Who Filmed Them Tackling Protestors in Louisville, BuzzFeed News (June 17, 2020, 8:50 p.m.), https://www.buzzfeednews.com/article/amberjamieson/louisville-shot-fired-securityguard-video. 32 Staff, User of Pepper Balls Resumes At Downtown Louisville Protests, WFPL News Louisville (June 15, 2020), https://wfpl.org/use-of-pepper-balls-tear-gas-resumes-at-downtown-louisville-protests/. 33 Hayes Gardner, 49 days and 435 arrests: Protestors in Breonna Taylor movement unfazed by charges, Louisville Courier Journal (July 16, 2020, 1:13 p.m.), https://www.courier-journal.com/story/news/2020/07/16/breonna-taylor-
protesters-arrests-show-we-mean-business/5434947002/; https://www.wdrb.com/news/76-demonstrators-arrested-
after-shutting-down-market-street-as-part-of-breonna-taylor-protests/article_4f0f7000-cde5-11ea-b691cf4c20dff0d1.html.
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110. In conducting these arrests, LMPD has continued to target those recording or livestreaming the police response to protesters.34
111. Many protesters were initially charged with serious offenses, including felony offenses that carry possible prison time.
112. For instance, on Tuesday, July 14, 2020, more than 100 protesters arrived at Attorney General Daniel Cameron’s residence in Louisville to protest the Attorney General’s Office’s delay in investigating the killing of Breonna Taylor.35 Eighty-seven of the protesters were ultimately arrested and charged with Intimidating a Participant in the Legal Process, a felony.
113. Three days later, the County Attorney for Jefferson County, Mike O’Connell, announced that “in the interest of justice and the promotion of the free exchange of ideas,” his office was dismissing all of the 87 felony charges brought against the peaceful protesters.36
114. In response to an isolated and random shooting on June 27, 2020, LMPD began enforcing an 11:00 p.m. curfew at Jefferson Square Park, the main site for organized demonstrations.
34 Lucas Aulbach, Livestreaers at Breonna Taylor protests believe Louisville police are targeting them, Louisville Courier Journal (July 5, 2020, 3:23 p.m.), https://www.courier-journal.com/story/news/local/2020/07/05/louisvillebreonna-taylor-protesters-say-police-target-live-streamers/5380284002/. 3587 charged with felony after protest on AG Daniel Cameron’s lawn in Louisville, WLKY News, Louisville KY (July 14, 2020, 8:46 p.m.), https://www.wlky.com/article/protesters-march-through-east-louisville-to-ag-danielcamerons-home/33313871. 36 County attorney dismissing felony charges for protestors involved in sit-in at Cameron’s home, WDRB Louisville, KY (July 17, 2020), https://www.wdrb.com/news/county-attorney-dismissing-felony-charges-forprotesters-involved-in-sit-in-at-camerons-home/article_2a3ce3d2-c851-11ea-bd89-d7f2aba6b1b9.html.
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115. LMPD officers also violently tore down encampments that protesters had erected in the park, destroying protesters’ property. Defendant Schroeder recognized that LMPD officers’ actions were “less than our standards” and apologized for the officers’ actions.37
116. Upon information and belief, LMPD officers’ actions in destroying protesters’ property was motivated in part by a desire to punish protesters for exercising their First Amendment rights.
117. The curfew at Jefferson Square Park remains in effect, despite no further instances of violent conduct.
118. Protests have continued nearly daily through downtown Louisville as of the date of this filing.
119. The Kentucky Attorney General’s investigation into the killing of Breonna Taylor remains pending. The conclusion of that investigation is likely to trigger larger protests and more aggressive police responses.
120. On July 16, 2020, the Louisville Metro Council opened an investigation into whether Defendant Fischer and LMPD’s conduct in response to the peaceful protests warranted Defendant Fischer’s removal from office.38 The Dangers of “Less-than-Lethal” Force
121. Although termed “nonlethal” or “less-than-lethal” force, military-grade crowd control devices expose targets to serious risks of injury, and even death.
37 Kelli Dugan and Cox Media National Content Desk, Police identify victim in fatal Louisville protest shooting; suspect in custody, Fox 23 News Louisville KY, (June 28, 2020), https://www.fox23.com/news/trending/policeidentify-victim-fatal-louisville-protest-shooting-suspect-custody/5BE6L63XLJGRHHDTMHQHPQYVBA/. 38 Madeline Holcombe, Mirna Alsharif and Elizabeth Joseph, Louisville mayor to be investigated for handling or protestors and Breonna Taylor’s case, CNN (July 16, 2020, 6:38 a.m.), https://www.cnn.com/2020/07/16/us/louisville-investigation-mayor-taylor-protest/index.html.
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122. The Sixth Circuit has recognized the significant damage done by using a chemical irritant such as tear gas: the gas “burns the face [and] nostrils, restricts breathing passages, and causes blindness. It causes a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx.” United States v. Mosley, 635 F.3d 859, 862 (6th Cir. 2011) (internal quotation marks and citations omitted)
123. Studies have found that individuals exposed to tear gas can continue to experience significant adverse health consequences up to one month after exposure.39
124. Despite being frequently described as non-lethal technology, tear gas can result in death. Recently, a protester in Ohio who was exposed to tear gas and pepper spray died from cardiac arrest.
125. The use of tear gas during the ongoing Novel Coronavirus – 2019 (“COVID-19”) pandemic creates additional risks for those exposed. COVID-19 is spread through respiratory droplets, which are spread by coughing, sneezing, and talking.40 In addition to burning of the eyes, nose, and mouth, exposure to tear gas can cause increased nasal secretions, immediate coughing, and sneezing.41
126. Public health experts unanimously agree that wearing a respiratory mask is one of the most important ways of preventing the spread of COVID-19.
39 Y.G. Karagama, J.R. Newton, and C.J.R. Newbegin. “Short-term and long-term physical effects of exposure to CS spray.” Journal of The Royal Society of Medicine. J.R. Soc. Med. April 2003. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539444/. 40 Cornoavirus Disease 2019 (COVID-19) Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019ncov/faq.html#Spread. 41 Y.G. Karagama, J.R. Newton, and C.J.R. Newbegin, Short-term and long-term physical effects of exposure to CS spray, Journal of The Royal Society of Medicine. J.R. Soc. Med. (April 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539444/.
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127. Many protesters taking part in the nationwide demonstrations have thus made sure to don masks before leaving their homes.
128. Because tear gas creates respiratory problems, however, many individuals exposed to tear gas cannot keep their masks on. When large groups of people congregate, remove their masks, and cough or sneeze, the risk of becoming infected with COVID-19 skyrockets.
129. Because tear gas covers an entire area, it cannot be targeted at specific people. It inherently injures everyone exposed to it.
130. Flash bangs can also cause serious injury, and even death. Flash bangs detonated too close to a person can cause burns, loss of limbs, and lasting partial hearing loss. In extreme cases, flash bangs can cause asphyxiation, heart attacks, and internal bleeding.
131. When detonated around gravel or loose glass, flash bangs can send shrapnel flying with enough force to wound those nearby.
132. Because flash bangs cover entire areas, they cannot be targeted at specific people. Flash bangs inherently place everyone exposed to them at risk of serious physical harm.
133. Pepper balls and rubber bullets can cause significant injuries, and even death, if they hit a person’s face, neck, or torso. Because such projectiles are often fired at velocities similar to live ammunition, they cause severe damage upon impact.
134. A survey of those struck by such projectiles found that they prove fatal approximately 3% of the time, and cause permanent disability approximately 15% of the time.42
42 Rohini J. Haar, Vincent Lacopino, Nikhil Ranadive, Madhavi Dandun, Sher D. Wesier, Death, injury and disability from kinetic impact projectiles in crowd-control settings: a systematic review, BMJ Journals Open, Vol. 7, Issue 12, (2017), https://bmjopen.bmj.com/content/7/12/e018154.full.
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Seventy-one percent of those struck with rubber bullets or pepper balls suffered severe injuries that required medical intervention.43
135. Although rubber bullets and pepper balls can be targeted, their use at longer ranges is “likely to be inaccurate and indiscriminate.”44
136. LMPD’s own Standard Operating Procedures recognize that “[t]he potential exists for [such types of ammunition] to inflict injury or death when they strike the face, eyes, and neck.”45
137. LRADs are sonic weapons that deploy a high-frequency sound wave at a target. 138. LRADs, developed by the military for use in the Iraq War in 2004,46 have been found to cause significant harm to individuals’ ear drums and can cause permanent hearing loss. Named Plaintiffs Are Injured by LMPD’s Use of Force 139. All Named Plaintiffs have been victims of LMPD’s disproportionate and violent response to protests. Attica Scott 140. Plaintiff Scott first attended demonstrations on May 29, 2020. She and her teenage daughter joined a group of protesters at approximately 5:30 p.m. at 6th Street and W. Jefferson Street. 141. Plaintiff Scott attended the demonstrations both to protest the killing of Breonna Taylor and, in her capacity as a Member of the Kentucky House of Representatives, to document what was happening in her community.
43 Id. 44 Physical Human Rights. International Network of Civil Liberties Organizations, https://www.inclo.net/pdf/lethalin-disguise.pdf. 45 SOP § 9.1.10. 46 Eric Niiler, Sonic Weapons’ Long, Noisy History, History Stories (August 27, 2018), https://www.history.com/news/sonic-weapons-warfare-acoustic.
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142. Shortly before arriving at the protest, she saw footage online of dozens of LMPD officers in riot gear lined up in front of the YUM! Center.
143. For several hours after Plaintiff Scott arrived, she observed no violence by other protesters. Instead, members of the group participated in die-ins, marches, and chanting; some protesters chanted “hands up don’t shoot.”
144. After approximately three hours, Plaintiff Scott observed a small number of people in the crowd throw plastic water bottles. Other demonstrators immediately denounced the behavior.
145. Without warning, the line of LMPD officers began advancing quickly with batons drawn, pushing the crowd back.
146. Defendant Officer J. Johnson noticed Plaintiff Scott recording the scene and approached her, shoving her backward. While backing away, Plaintiff Scott tripped on a box behind her, fell to the ground, and injured her knee.
147. Plaintiff Scott was able to meet up with her daughter, who informed her she was bleeding and needed medical attention. Plaintiff Scott found a medic tent set up by protesters to get first aid for her knee.
148. As she received medical attention at the tent, LMPD officers deployed tear gas. An immediate cloud covered the area. Plaintiff Scott saw a thick cloud of smoke. Plaintiff Scott couldn’t see anything through the smoke. Her eyes started burning badly, and she used her facemask to help act as a barrier between her face and the smoke.
149. Plaintiff Scott ran from the tear gas. She ultimately met up with her daughter and her friend, and the three went to their car, where they stayed nearby the protest for another twenty or so minutes.
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150. Plaintiff Scott was also present at the protest on June 15, where she witnessed LMPD using pepper balls indiscriminately against protesters.
151. On June 18, 2020, Plaintiff Scott filed a formal complaint with LMPD, asking the department to investigate its officers’ inappropriate use of tear gas.
152. LMPD responded by letter dated June 29, 2020, stating that her complaint was being investigated.
153. She has received no further contact from LMPD since that letter. Corbin Smith and Tyler Weakley
154. Plaintiffs Smith and Weakley drove into downtown Louisville to go to dinner on the evening of May 31, 2020, but they decided to first stop by the demonstrations to show support for the community.
155. They arrived downtown and, wearing face masks, began walking towards Broadway Street, where the protest was taking place. On their way, Plaintiffs Smith and Weakley walked past a group of police officers in riot gear who said nothing about a curfew in effect.
156. Plaintiffs Smith and Weakley saw the group of protesters at approximately 8:30 p.m., thirty minutes before the official curfew that had just been implemented was schedule to begin.
157. For fifteen minutes, Plaintiffs Smith and Weakley observed protesters marching and chanting peacefully.
158. Then, without warning or justification, LMPD officers began deploying flash bangs and tear gas into the crowd, causing a panicked stampede away from the police line.
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159. Plaintiffs Smith and Weakley were close to a tear gas cannister that exploded. Plaintiffs Smith and Weakley both inhaled the gas and immediately began choking. For several minutes, Plaintiffs Smith and Weakley both felt as if they were suffocating.
160. Plaintiff Weakley observed a police car drive into the crowd of protesters on a street perpendicular to Broadway Street, further exacerbating the chaos.
161. Tear gas began filling the air, obscuring visibility in the area. Nonetheless, officers began firing pepper balls and rubber bullets indiscriminately.
162. Plaintiff Smith felt a pepper ball fly close to his ear, prompting him and Plaintiff Weakley to start running back to their car.
163. On the way, Plaintiffs Smith and Weakley encountered a line of approximately 40 LMPD officers in riot gear.
164. Plaintiff Smith begged the officers to let them get to their car. The officers responded by drawing and training their weapons on both Plaintiff Smith and Plaintiff Weakley.
165. Both Plaintiff Smith and Plaintiff Weakley then slowly raised their hands above their heads and kneeled on the ground. Both feared that they were about to be shot, perhaps fatally.
166. Although both Plaintiff Smith and Plaintiff Weakley had already submitted, LMPD Officers John Does #1-5 charged and tackled Plaintiff Smith to the ground, slamming him into the road. LMPD Officers John Does #6-9 and LMPD Officer Jane Doe #1 tackled Plaintiff Weakley and pinned her to the ground.
167. Plaintiff Smith, surprised by the use of force, asked why they were being placed under arrest. Defendant Officer John Doe #1 responded by calling him a domestic terrorist and pressing him further into the ground.
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168. Defendant Officer John Doe #2 placed his knee at the base of Plaintiff Smith’s neck and pushed down, further limiting Plaintiff Smith’s ability to breathe. Echoing the haunting words of George Floyd, Plaintiff Smith began pleading that he could not breathe.
169. Defendant Officers John Does #1, 3, 4, and 5 then began to beat Plaintiff Smith with their batons, striking his back and his legs.
170. Plaintiff Smith feared that he would be killed by LMPD Officers John Does #1-5, joining the ranks of countless unarmed Black people killed by aggressive policing.
171. After a few minutes, Defendant Officers John Does #1-9 and Defendant Officer Jane Doe #1 pulled up Plaintiff Smith and Plaintiff Weakley and placed them on the sidewalk curb. Defendant Officer John Doe #3 pulled Plaintiff Smith’s face mask off without explanation.
172. Defendant Officers John Does #1-9 and Defendant Officer Jane Doe #1 then placed both Plaintiff Smith and Plaintiff Weakley under arrest. Neither Plaintiff was told on what basis they were being arrested.
173. Plaintiff Smith was ultimately charged with one count of misdemeanor unlawful assembly and one count of misdemeanor curfew violation. Plaintiff Weakley was charged with one count of felony rioting.
174. LMPD’s conduct profoundly impacted both Plaintiffs Smith and Weakley. 175. As a result of the attack, Plaintiff Smith sustained cuts and bruises to his knees, legs, and back. 176. Plaintiff Smith, fearful of further police misconduct, did not attend any further protests for approximately one week. He has since returned to protests in Louisville. 177. At every protest he has attended since, he remains afraid that LMPD officers will react as violently as they did on May 31, 2020.
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178. Plaintiff Weakley has been traumatized by the events of that night; she has refused to attend any further demonstrations out of fear. She attended one celebration on June 19, 2020, but she began to feel anxious as the sun went down; she left the event early for fear of police crackdown. Willa Tinsley
179. Plaintiff Tinsley first joined the protests on May 28, 2020. She had learned about the demonstrations on social media, and drove downtown to join at approximately 10:00 p.m.
180. When Plaintiff Tinsley arrived at the protests, she observed LMPD officers in riot gear advancing on the protesters. Almost immediately, she saw flash bangs exploding by her and heard pepper balls being fired.
181. A tear gas cannister exploded near Plaintiff Tinsley, who immediately could not open her eyes or breathe because of the pain. Disoriented, she began to run in the direction of the crowd, attempting to leave the area and find her car.
182. Eventually, another protester who saw Plaintiff Tinsley helped wash out her eyes. Plaintiff Tinsley then began to search for her car to go home.
183. As she searched, she encountered another protester who was also looking for his vehicle. As they walked, they encountered LMPD Officers John Does #10-13.
184. Defendant Officers John Does #10-13 began yelling at Plaintiff Tinsley and the other protester to clear the area. Plaintiff Tinsley responded that they were looking for her car. The other protester told the officers that they were on a public sidewalk.
185. Defendant Officers John Does #10-13 responded by firing pepper balls at Plaintiff Tinsley and the other protester—from just a few feet away. Plaintiff Tinsley was shot in the arm, torso, and leg at close range.
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186. Plaintiff Tinsley and the other protester turned and began to run away. Defendant Officers John Does #10-13 continued to fire pepper balls at them, hitting Plaintiff Tinsley on the back and on her legs.
187. In total, Defendant Officers John Does #10-13 discharged approximately 30 rounds of pepper balls at Plaintiff Tinsley and her friend, striking Plaintiff Tinsley approximately 10 times.
188. She sustained significant bruising on her back and legs from the shots. 189. For several days following the incident, Plaintiff Tinsley could not use her arm because of severe pain. 190. Plaintiff Tinsley joined a demonstration on the evening of May 31, 2020. She had learned about the event on social media. 191. She joined the march downtown around 7:00 p.m. When she arrived, the scene was wholly peaceful; protesters were chanting and marching with signs. 192. The protesters were not causing any damage to surrounding property. 193. Despite the peaceful nature of the protesters, Plaintiff Tinsley heard LMPD officers stating that the demonstration was an unlawful gathering. 194. Plaintiff Tinsley then heard the explosion of tear gas cannisters and saw clouds of smoke filling the air. She saw a flash bang detonate near her. 195. The tear gas blinded her and burned her nose and throat, while the flash bang impaired her hearing and caused her to grow disoriented. 196. Through the cloud of smoke, pepper balls began whizzing by her. Plaintiff Tinsley was struck multiple times in the arms and legs with projectiles, causing significant bruising.
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197. Disoriented, and unable to see or hear well, Plaintiff Tinsley stumbled onto a side street. Other protesters poured milk in her eyes to alleviate the burning.
198. Eventually, scared to be alone in the midst of the widespread police violence, she found her way to a group of approximately 40 other protesters.
199. A group of LMPD officers found the protesters and began beating them with batons, ultimately arresting the whole group.
200. Plaintiff Tinsley was held in jail for approximately 30 hours and ultimately charged with one count of misdemeanor curfew violation.
201. While Plaintiff Tinsley was in jail, an LMPD officer told her, in sum and substance: “We’re trying to arrest you guys so you have to spend a night in jail and learn your lesson.”
202. At another point, an LMPD officer told her directly: “This is to teach you a lesson.”
203. Since then, Plaintiff Tinsley has been wary of attending further demonstrations. She has only attended a handful of protests, and never stays after sunset, out of a fear of further police force.
204. For example, Plaintiff Tinsley planned on attending protests on June 15, 2020. After she learned LMPD was using an LRAD, however, Plaintiff Tinsley, who has hearing problems, decided not to attend the protest. Stevie Schauer
205. Plaintiff Schauer joined a small group of young people on the afternoon of June 15, 2020 for a march through downtown Louisville.
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206. Immediately, Plaintiff Schauer noticed that the police presence at the gathering was much more aggressive than on prior days of protests she had attended—even though there were only approximately 50 people protesting, a smaller gathering than the previous protests she had attended.
207. Plaintiff Schauer observed an LMPD helicopter circling protesters from above. 208. As the group of protesters, including Plaintiff Schauer, moved south on 9th Street from W. Jefferson Street towards W. Chestnut Street, they encountered a line of LMPD officers in riot gear—with their batons out—blocking off the street. 209. LMPD officers yelled that the crowd needed to move back. 210. Plaintiff Schauer immediately left the street and got onto the sidewalk, where no officers were present. Other individuals—who, upon information and belief, had not participated in the demonstrations—were also standing on the sidewalk without issue. 211. In an effort to document what was happening, Plaintiff Schauer took out her cell phone and began to record the LMPD officers. 212. Almost immediately after she began recording, LMPD Officers John Does #14-15 broke from the line of riot officers and approached her quickly. 213. Defendant Officer John Doe #14 yelled “move back” and immediately shoved Plaintiff Schauer to the ground with enough force to bruise her shoulder and twist her ankle. 214. The shove also caused Plaintiff Schauer’s cell phone and eyeglasses to shatter. 215. Plaintiff Schauer—who has a chronic condition that causes joint sensitivity— feared that she had badly injured her shoulder or ankle. 216. Plaintiff Schauer’s friend, who was also at the demonstration, tried to walk over to Plaintiff Schauer to check on her. LMPD officers began firing pepper balls at the friend’s feet.
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217. Defendant Officers John Does #14-15 then pushed Plaintiff Schauer to the ground and used a plastic tie to bind her wrists.
218. The plastic tie was coiled tightly enough to bruise her wrists. 219. Plaintiff Schauer was placed under arrest at approximately 7:30 p.m. She was kept in jail for 10 hours and ultimately charged with one count of felony rioting and one count of misdemeanor unlawful assembly. 220. At the precinct, an LMPD officer asked her “Was it worth it? You dirtied your record for this.” 221. Plaintiff Schauer had to keep her ankle wrapped in an elastic bandage for a week to heal the injury she sustained in the course of her arrest. 222. Since this experience, Plaintiff Schauer has been too afraid to participate in further protests. Though she wishes to continue marching in support of the movement for police accountability, she fears further physical violence if she participates in any additional demonstrations. 223. To date, she feels nervous and anxious around police officers. Kayla Meisner 224. Plaintiff Meisner attended a demonstration on the evening of May 29, 2020. 225. The group of protesters was peacefully chanting and marching through downtown. As she marched, Plaintiff Meisner saw tanks lined up along the Second Street Bridge. 226. The protest continued down to the courthouse. After marching around the courthouse several times, Plaintiff Meisner saw police officers stationed on top of buildings, and she saw that police had set up barricades and brought out tanks and police vans.
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227. Then, protesters were met by a phalanx of approximately 200 LMPD officers in riot gear and armed with batons, guns, and tear gas.
228. LMPD officers began erecting barricades to prevent people from leaving the area. 229. LMPD officers then threatened to fire into the trapped crowd unless the group sat down. 230. With no options, the group—including Plaintiff Meisner—sat down. 231. Nonetheless, LMPD officers began firing flash bangs and pepper balls and launching tear gas indiscriminately into the seated crowd, prompting a panicked retreat. 232. The wave of tear gas hit Plaintiff Meisner; she was instantly unable to see or breathe from the pain of the irritant. 233. Plaintiff Meisner had to be led away from the scene by a friend; together, they hid in a parking garage nearby as LMPD officers continued to launch tear gas into the dispersing crowd. 234. Plaintiff Meisner then observed LMPD officers open fire on a group of local journalists who were covering the event. 235. Though she continues to attend demonstrations, Plaintiff Meisner fears further police use of force against peaceful demonstrators. She feared for her life during the events of May 29, and no longer has any trust for public officials or LMPD. She believes that LMPD will retaliate against protesters who are trying to stand up for what is right. Kentucky Alliance Against Racial and Political Repression 236. As part of its work combatting racial discrimination in policing, Plaintiff KAARPR has been involved in coordinating and attending many of the recent demonstrations in Louisville.
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237. Earlier this spring, Plaintiff KAAPR launched a campaign related to the killing of Breonna Taylor calling for the arrest of those officers responsible for her death, as well as systemic reforms that will prevent excessive use of police force in the future. These include reforms to LMPD’s use of force policies, as well as systems that allow for meaningful community oversight of the LMPD.
238. Plaintiff KAARPR’s members have attended demonstrations and peacefully protested in Louisville between May 28, 2020 and the present.
239. Many of Plaintiff KAARPR’s members themselves been victims of police abuse during the protests; members who were protesting peacefully have been tear-gassed, shot with rubber bullets, pushed and hit with batons, and experienced flash bangs and LRAD usage.
240. As a result, Plaintiff KAARPR has been forced to divert resources into purchasing first aid supplies, as well as milk and water to treat those injured at protests. Additionally, Plaintiff KAARPR has hired individuals to provide security, and purchased security goggles, food, masks, and cleaning supplies for members attending protests.
241. On at least one occasion, during the course of a protest, LMPD directed sanitation officials to collect Plaintiff KAARPR’s supplies, thus preventing Plaintiff KAARPR from using them and requiring Plaintiff KAARPR to purchase additional supplies.
242. Altogether, Plaintiff KAARPR has spent over $10,000 dollars in these and other purchases for protests responding to police violence.
243. Plaintiff KAARPR has also had to expend significant staff time responding to the excessive use of force by police at the protests.
244. Plaintiff KAARPR has expended time and money to organize additional protests directed towards addressing police use of force at previous protests.
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245. Plaintiff KAARPR has also spent staff time participating in various public education events related to the excessive use of police force at the protests. For example, on several occasions, Plaintiff KAARPR’s leadership has responded to local press inquiries regarding the use of excessive force against protestors. Likewise, Plaintiff KAARPR has launched a campaign, encouraging protestors to live stream marches and demonstrations, as a means of recording acts of police violence.
246. The money and staff time Plaintiff KAARPR has spent on responding to excessive police violence has prevented it from conducted other activities it had planned to engage in.
247. At the beginning of the year, Plaintiff KAARPR had planned to conduct public education events, including various panels and speakers, and organize public rallies related to the lack of adequate education for children attending schools in Louisville’s West End, as well as the need for additional money in the City Budget for the education of Black and Brown children in Louisville.
248. As a result of the increased staff time need to treat protestors injured by police violence, purchase supplies to treat these protestors after they have been injured, respond to media and public inquiries regarding the use of police force, as well as organize additional protests in response to LMPD’s excessive use of force against protestors, Plaintiff KAARPR has been unable to organize these events or otherwise work towards improving education access and education funding.
249. LMPD’s use of force against peaceful protesters to shut down demonstrations has also frustrated Plaintiff KAARPR’s mission to (a) ensure that public fora for free speech and debate regarding issues of human and constitutional rights remain available to all people; (b)
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eliminate police abuse against peaceful, private civilians; and (c) bring together community members to speak out on issues related to abusive police practices.
CLASS ACTION ALLEGATIONS 250. Plaintiffs seek prospective injunctive relief on behalf of a class of similarly situated individuals under Rule 23(b)(1)(A) and (b)(2) of the Federal Rules of Civil Procedure (“Plaintiff Class”). The Plaintiff Class comprises all individuals who peacefully participated in any day of protests between May 28, 2020 and July 30, 2020 on which LMPD officers utilized tear gas, flash bangs, pepper balls, rubber bullets, impact rounds, batons, or other comparable crowd control weaponry (“Crowd Control Weaponry”) and were actually exposed to Crowd Control Weaponry at those protests. 251. All of the members of the Plaintiff Class were injured in largely the same ways as a result of Louisville’s conduct—all of their First Amendment rights to peacefully protest in a public forum and their Fourth Amendment rights to be free from the use of excessive force were violated. 252. The Plaintiff Class is so numerous that joinder of all individual members would be impracticable. Thousands of peaceful protesters have been subjected to the Crowd Control Weaponry that the LMPD has deployed from May 28, 2020 to July 30, 2020. Hundreds of peaceful protesters have been arrested during that time. 253. The questions of law and fact presented by Plaintiffs are common to all members of the Plaintiff Class. Among others, the questions common to the Plaintiff Class include:
a. Whether the use of Crowd Control Weaponry on peaceful protesters caused an immediate end to peaceful demonstrations and actually stifled
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free speech and peaceful assembly on matters of significant public importance; b. Whether the use of Crowd Control Weaponry on peaceful protesters is likely to deter a person of ordinary firmness from further protests or demonstrations; c. Whether the use of Crowd Control Weaponry on peaceful protesters creates a significant risk of serious bodily injury; d. Whether the use of Crowd Control Weaponry on peaceful protesters was unnecessary and/or excessive to maintaining public safety; e. Why LMPD chose to use Crowd Control Weaponry on peaceful protesters; f. Whether LMPD officers issued any warning before employing Crowd Control Weaponry on peaceful protesters; g. Whether LMPD attempted to use other forms of crowd control before resorting to Crowd Control Weaponry; and h. Whether the City of Louisville has ratified the LMPD’s conduct, either through its express statements or by acquiescence. 254. Common issues of law and fact predominate any individual issues. 255. All members of the Plaintiff Class were subject to the same practices and policies of the City of Louisville. 256. The violations suffered by Plaintiffs are typical of the Plaintiff Class. Plaintiffs were peacefully protesting when LMPD employed Crowd Control Weaponry on them. The injuries they suffered as a result of Crowd Control Weaponry, as well as the chilling effect of
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these uses of force on their willingness to peacefully assemble to protest, are identical to the injuries sustained by the rest of the Plaintiff Class.
257. The entire Plaintiff Class will benefit from the injunctive relief sought herein. 258. Plaintiffs have no conflict of interest with any members of the Plaintiff Class, are committed to vigorous prosecution of all claims on behalf of the Plaintiff Class, and will fairly and adequately protect the interests of the Plaintiff Class. 259. A class action is superior to any other method for the fair and efficient resolution of this legal dispute, as joinder of all members of the Plaintiff Class is impracticable. Further, the prosecution of thousands of individual actions by individual members of the Plaintiff Class would create the substantial risk of inconsistent or varying adjudications, which would establish potentially incompatible standards of conduct for Defendant City of Louisville. 260. The Plaintiff Class is represented by competent counsel.
COUNT I First Amendment Free Speech and Assembly – 42 U.S.C. § 1983
(Against All Defendants) 261. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 262. At all relevant times, Defendant Officers, Defendant Fischer, Defendant Schroeder, and Defendant Chavous have acted—and continue to act—under color of state law. 263. Plaintiffs and the Plaintiff Class engaged in constitutionally protected speech and assembly by participating in peaceful protests about the killings of unarmed Black people at the hands of police officers. 264. Defendant Officers engaged in use of Crowd Control Weaponry, and the other forms of excessive force detailed above, causing injuries to Plaintiffs and the Plaintiff Class.
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265. Defendants Schroeder, Fischer, and Chavous approved of and ratified the conduct of Defendant Officers and other LMPD officers who used such Crowd Control Weaponry or other forms of excessive force.
266. Defendants Fischer, Schroeder, and Chavous are final policymakers for all matters related to LMPD’s conduct. Their decisions regarding LMPD matters constitute the official policies of Defendant City of Louisville.
267. Defendants’ conduct is sufficient to deter a person of ordinary firmness from participating in further protests for fear of being subject to similar force, and did in fact actually deter Plaintiffs and the Plaintiff Class from participating in further demonstrations.
268. Plaintiffs and the Plaintiff Class reasonably fear the continued use of such weaponry at future protests.
269. Upon information and belief, certain Plaintiffs and members of the Plaintiff Class have been actually chilled in their exercise of protected First Amendment rights.
270. LMPD officers have continued to use Crowd Control Weaponry on protesters, including members of the Plaintiff Class, as recently as June 15, 2020.
271. Defendants City of Louisville, Fischer, Schroeder, and Chavous have continued to approve LMPD’s use of force, both expressly and by acquiescence.
272. As a direct and proximate result of Defendants’ conduct, Plaintiffs have sustained the physical and emotional damages detailed above.
273. As a direct and proximate result of LMPD’s continued use of tear gas and flash bangs as approved by Defendant City of Louisville, Plaintiffs and the Plaintiff Class continue to fear participating in peaceful protests.
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COUNT II Fourth Amendment Excessive Force – 42 U.S.C. § 1983
(Against All Defendants) 274. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 275. At all relevant times, Plaintiffs and the Plaintiff Class were peaceful and nonviolent protesters who did not disobey or refuse any police order. 276. Defendant Officers nonetheless Crowd Control Weaponry on Plaintiffs and the Plaintiff Class. 277. By using Crowd Control Weaponry on Plaintiffs, and physically striking and tackling Plaintiffs, Defendant Officers subjected Plaintiffs to excessive force. 278. Defendants Schroeder, Fischer, and Chavous approved of and ratified the conduct of Defendant Officers and other LMPD officers who used such force. 279. Defendants Fischer, Schroeder, and Chavous are final policymakers for all matters related to LMPD’s conduct. Their decisions regarding LMPD matters constitute the official policies of Defendant City of Louisville. 280. As a direct and proximate result of Defendants’ conduct, Plaintiffs have sustained the injuries detailed above. 281. LMPD officers have continued to use Crowd Control Weaponry on protesters, including members of the Plaintiff Class, as recently as June 15, 2020. 282. Defendants City of Louisville, Fischer, Schroeder, and Chavous have continued to approve LMPD’s use of force, both expressly and by acquiescence. 283. Plaintiffs and the Plaintiff Class remain active advocates against police brutality and intend to peacefully protest again within the coming weeks.
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284. As a direct and proximate result of LMPD’s continued use of Crowd Control Weaponry, and other forms of physical force as approved by Defendants City of Louisville, Fischer, Schroeder, and Chavous, Plaintiffs and the Plaintiff Class will likely be further harmed if they participate in peaceful protests.
COUNT III Common Law Battery (Against Defendant City of Louisville and Defendant Officers) 285. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 286. By deploying Crowd Control Weaponry, live ammunition, and other projectiles at Plaintiffs and the Plaintiff Class, Defendant Officers subjected Plaintiffs and the Plaintiff Class to a forcible physical touching. 287. At no point did Plaintiffs or the Plaintiff Class consent, acquiesce, or otherwise agree to the touching as detailed above. 288. The forcible touching as detailed above was in no other way privileged. 289. As a direct and proximate result of Defendant Officers’ forcible touching, Plaintiffs and the Plaintiff Class suffered the damages herein alleged. 290. Defendant City of Louisville, as the employer of all LMPD officers, is responsible and liable for torts committed by all LMPD officers under the doctrine of respondeat superior.
COUNT IV Common Law Assault (Against Defendant City of Louisville and Defendant Officers) 291. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein.
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292. By threatening to deploy and in fact deploying Crowd Control Weaponry, live ammunition, and other projectiles at Plaintiffs and the Plaintiff Class, Defendant Officers threatened to subject Plaintiffs and the Plaintiff Class to a forcible physical touching.
293. At no point did Plaintiffs or the Plaintiff Class consent, acquiesce, or otherwise agree to the touching as detailed above.
294. As a direct and proximate result of Defendant Officers’ forcible touching, Plaintiffs and the Plaintiff Class suffered the damages herein alleged.
295. Defendant City of Louisville, as the employer of all LMPD officers, is responsible and liable for torts committed by all LMPD officers under the doctrine of respondeat superior.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Plaintiff Class respectfully request that this Court certify this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, and enter judgment in their favor and against Defendants as follows:
a. Permanently enjoining Defendants City of Louisville, Fischer, Schroeder, and Chavous, as well as LMPD’s officers, employees, and agents, from the use of Crowd Control Weaponry on peaceful protesters;
b. Requiring Defendant City of Louisville to promulgate official policies restricting the use of Crowd Control Weaponry to situations when a police officer or other person faces an imminent risk of serious physical danger;
c. Awarding such damages to Plaintiffs as will fully compensate them for their loss of rights, as well as their physical and emotional injuries, owing to Defendants’ conduct;
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Case 3:20-cv-00535-CRS Document 1 Filed 07/30/20 Page 45 of 46 PageID #: 45 d. Awarding punitive damages against the Officer Defendants and Defendants Fischer, Schroeder, and Chavous; e. Awarding reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988; and, f. Granting such other relief as may be just and proper.
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Dated:

July 30, 2020 Louisville, KY

Ashok Chandran* Christopher Kemmitt* Ajmel Quereshi* Kristen Johnson* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 achandran@naacpldf.org ckemmitt@naacpldf.org aquereshi@naacpldf.org kjohnson@naacpldf.org

Respectfully submitted,
/s/ Heather Gatnarek Corey Shapiro Heather Gatnarek Mashayla Hays Aaron Tucek† ACLU OF KENTUCKY FOUNDATION, INC. 325 W. Main St. Suite 2210 Louisville, KY 40202 (502) 581-9746 corey@aclu-ky.org heather@aclu-ky.org mashayla@aclu-ky.org aaron@aclu-ky.org
Earl S. Ward* O. Andrew F. Wilson* Samuel Shapiro* Andrew K. Jondahl* EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 eward@ecbawm.com awilson@ecbawm.com sshapiro@ecbawm.com ajondahl@ecbawm.com
*pro hac vice application forthcoming †application for admission forthcoming

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY

ATTICA SCOTT, CORBIN SMITH, KAYLA MEISNER, TYLER WEAKLEY, STEVIE SCHAUER, WILLA TINSLEY, PATRICK MOORE, and the KENTUCKY ALLIANCE AGAINST RACIAL AND POLITICAL REPRESSION, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, GREG FISCHER, individually and in his official capacity as Mayor of Louisville, ROBERT SCHROEDER, individually and in his official capacity as Interim Chief of the Louisville Metropolitan Police Department, LaVITA CHAVOUS, individually and in her official capacity as Assistant Chief of the Louisville Metropolitan Police Department, and LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICER “J.” JOHNSON, LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICERS JOHN DOES #1-#15 and JANE DOE #1, in their individual capacities,
Defendants.

Civil Action No. 3:20-cv-0535
FIRST AMENDED COMPLAINT AND JURY TRIAL DEMAND

PRELIMINARY STATEMENT “[O]ur constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society.” Cox v. State of La., 379 U.S. 559, 574 (1965). Rarely before has this principle been as readily apparent as it is today; following the senseless killings of George Floyd,

Breonna Taylor, and countless other Black individuals at the hands of police, protesters in all fifty states are demanding police accountability and reform.
Rather than treating its peaceful protesters as important parts of the democratic process protected by the Constitution, the City of Louisville has chosen to forcibly silence them—often using military-type weapons and tactics that resemble those used by authoritarian regimes to stifle dissent. In the days following the death of George Floyd, who was killed by Minneapolis police officers on May 25, 2020, a key demand for protesters who took to the streets around the country was justice for Breonna Taylor, who was killed by Louisville police officers in her own home on March 13, 2020. Louisville police officers sought to quell these demonstrations through the sustained use of tear gas, flash bangs, pepper balls, and other forms of military-grade technology. This combat-style response led to yet another senseless death: on May 31, 2020, Louisville police and the National Guard fired eighteen live rounds at David McAtee, a local Black restaurant owner, killing him. Since then, countless peaceful protesters—including elected officials and local educators—have been shot, gassed, beaten, and arrested solely for making their voices heard. Louisville police officers also abused the city’s curfew order while it was in effect, employing force to arrest or disperse people hours before they were required by the curfew order to clear the streets. And to this day, both Louisville’s Mayor and Kentucky’s Governor have defended the police department’s conduct.
Plaintiffs are a diverse group of individuals who have come together to exercise their rights to protest and demand change from their government. For that, Louisville police officers have subjected them to shocking and violent levels of force. Plaintiff Corbin Smith was tear gassed, beaten with batons, and forced to beg for his life while an officer kneeled on his neck. Plaintiff Patrick Moore was shot in the eye with a pepper ball, causing his retina to tear away
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from his eyeball; three surgeries later, he still has not fully recovered his vision. Plaintiff Stevie Schauer was shoved to the ground and violently beaten by officers who saw her recording their misconduct; friends who tried to help her were shot with pepper balls.
Their experiences are just a few examples of the sustained violence that Louisville has unleashed on its citizens. Plaintiffs now bring this suit, on behalf of themselves and all others similarly situated, to guarantee and protect their constitutional right to demand change from their government at this singular moment in history.
PARTIES 1. Plaintiff Attica Scott is a citizen of the United States and currently resides in Kentucky. She currently serves in the Kentucky House of Representatives, representing the 41st District. 2. Plaintiff Corbin Smith currently resides in Indiana. 3. Plaintiff Kayla Meisner currently resides in Kentucky. 4. Plaintiff Tyler Weakley currently resides in Indiana. 5. Plaintiff Stevie Schauer currently resides in Kentucky. 6. Plaintiff Willa Tinsley currently resides in Kentucky. 7. Plaintiff Patrick Moore currently resides in Kentucky. 8. Plaintiff Kentucky Alliance Against Racial and Political Repression (“KAARPR”) is a 501(c)(3) organized under the laws of Kentucky that has more than 900 duespaying members. Its mission is to “inform the public and provide a channel for public debate concerning the human and constitutional rights of all people; to bring together diverse groups of people to support those repressed for racist or political reasons; [and] to work to end racist
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practices in the community and government.”1 The organization’s work is focused on, among other things, combating the use of excessive force by police, including against protestors; challenging cruel and unusual conditions of confinement in prisons and jails in Kentucky; limiting the disproportionate effect of the criminal justice system on Black individuals; and improving education access and opportunity for Black and Brown children in the greater Louisville area.
9. Since its founding more than 40 years ago, KAARPR has, among other things, highlighted the stories of victims of police abuse as a means of drawing attention to the larger systemic issues discussed above. For example, over twenty years ago, KAARPR launched a campaign around the death of Adrien Reynolds, who was subjected to excessive force during his arrest and then killed by correctional officials.
10. KAARPR is also a leading member of Louisville Citizens Against Police Abuse, a coalition of local organizations united to fight police brutality in Black and Brown communities in Louisville.
11. Defendant Louisville/Jefferson County Metro Government (“City of Louisville”) is a municipality organized and existing under the laws of the State of Kentucky. Defendant City of Louisville, acting through the Louisville Metropolitan Police Department (“LMPD”), is responsible for the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, the City of Louisville is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky.
1 About Us, Kentucky Alliance Against Racial and Political Repression, http://www.kentuckyalliance.org/about html (last visited July 30, 2020).
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12. Defendant Greg Fischer is the Mayor of the City of Louisville. In that capacity, he is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, Defendant Fischer is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky.
13. Defendant Robert Schroeder is the Interim Chief of the Louisville Metropolitan Police Department. Defendant Schroeder was appointed to this role on or about June 1, 2020. Before his appointment as Interim Chief, Defendant Schroeder was Deputy Chief of the Louisville Metropolitan Police Department. In his capacity as both Interim Chief and Deputy Chief, he is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, Defendant Schroeder is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky, including by conducting thorough and expeditious investigations into officer misconduct. At all relevant times, Defendant Schroeder was acting within the scope of his employment and under color of state law.
14. Defendant LaVita Chavous is an Assistant Chief of the Louisville Metropolitan Police Department. In that capacity, she is responsible for implementing the policy, practice, supervision, implementation, and conduct of all LMPD matters, including the appointment, training, supervision, and conduct of all LMPD personnel. In addition, Defendant Chavous is responsible for enforcing the rules of the LMPD and ensuring that LMPD personnel obey the laws of the United States and the State of Kentucky, including by conducting thorough and
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expeditious investigations into officer misconduct. At all relevant times, Defendant Chavous was acting within the scope of her employment and under color of state law.
15. Defendants LMPD Officer “J.” Johnson and LMPD Officers John Does #1-15 and Jane Doe #1, (collectively, “Defendant Officers” or “Officers”) are police officers employed by the City of Louisville. In this role, Defendant Officers were duly appointed and acting officers, servants, employees and/or agents of Louisville. At all relevant times, they were acting in the scope of their employment and under color of state law.
JURISDICTION AND VENUE 16. This action arises under the First, Fourth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Kentucky state law. 17. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4), and 1367. 18. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e) because at least some Defendants reside in this district and a substantial part of the acts and omissions giving rise to this action took place in this district.
JURY TRIAL DEMAND 19. Plaintiffs demand trial by jury.
FACTS The Killings of Breonna Taylor and George Floyd Spur Nationwide Protests
20. Over the past several months, a number of high-profile instances of police killing unarmed Black people have shocked the nation’s conscience.
21. Shortly after midnight on March 13, 2020, three LMPD police officers shot and killed Breonna Taylor, a Black 26-year-old emergency medical technician who lived in Louisville.
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22. The LMPD officers executed a no-knock warrant at Ms. Taylor’s apartment. Upon entry, the officers fired over twenty rounds at Ms. Taylor and her boyfriend.
23. Ms. Taylor, who was unarmed and sleeping in bed, was struck eight times—but did not die immediately. Instead, for five or six minutes, she lay bleeding in her bed, her boyfriend pleading unsuccessfully for the officers to help her. Ms. Taylor died from her injuries.
24. Ms. Taylor’s story quickly captured national attention. Calls for justice for her killing began to grow.
25. In response, the LMPD opened an internal investigation into whether its officers violated any departmental policies. The Attorney General of Kentucky has opened an investigation into possible criminal charges against the officers. And the Federal Bureau of Investigation has opened a separate probe into the officers’ conduct.
26. To date, however, the officers who killed Breonna Taylor have not been arrested. Defendant Schroeder has initiated termination procedures against just one of the three officers involved.
27. Less than two months later, on May 25, 2020, officers from the Minneapolis Police Department killed George Floyd while arresting him on suspicion of passing a counterfeit twenty-dollar bill.
28. A bystander captured the killing on video; for nearly eight minutes after Mr. Floyd had been placed in handcuffs, a police officer kneeled on Mr. Floyd’s neck while three other officers stood by and watched.
29. Mr. Floyd repeatedly begged for mercy, pleading that he could not breathe. He called out for his mother. His last words were “please, I can’t breathe.”
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30. Video of Mr. Floyd’s murder spread almost immediately. Within days, his story had become the defining topic of national discourse. Elected officials and public figures of all political affiliations denounced the police officers’ actions.
31. All four of the officers involved in Mr. Floyd’s killing have been arrested and criminally charged.
32. The killings of Ms. Taylor and Mr. Floyd—emblematic of the widespread pattern of police violence against unarmed Black people—touched a nerve in communities across the country, sparking mass protests about how police interact with Black people.
33. Within a week of Mr. Floyd’s killing, large-scale demonstrations had begun in all fifty states. Those protests remain ongoing. Protests Begin in Louisville, Prompting Immediate and Egregious Use of Force by LMPD May 28, 2020
34. On May 28, 2020, LMPD released the audio of the 911 call placed by Breonna Taylor’s boyfriend the night she was killed.
35. That evening, large-scale demonstrations began in Louisville. At approximately 8:00 p.m., protesters carrying signs reading “Justice for Breonna” and chanting “Breonna was asleep” marched through downtown Louisville to gather near the Louisville Metro Hall.2
36. Protesters were met by a fleet of armed LMPD officers clad in riot gear. 37. At approximately 11:15 p.m., a handful of protesters threw plastic water bottles at the LMPD officers.
2 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020 at 10:56 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/28/breonna-taylor-shooting-what-know-louisville-protest/5280762002/.
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38. In response, LMPD officers fired a combination of pepper balls (pepper-spray projectiles launched using guns or similar weapons) and live ammunition into the crowd of protesters, nearly all of whom were protesting peacefully. Seven people were hit with live bullets. Protesters began to disperse.
39. At least one of the injured protesters claimed that he was shot in the back of the head by a police officer. He has sued both LMPD and the Kentucky State Police. See Albert v. Unknown Individual Kentucky State Police Officers, et al., No. 3:20-cv-00418 (W.D. Ky.).
40. LMPD officers then began to launch canisters of tear gas into the crowd. 41. LMPD subsequently claimed that the tear gas and gunshots were necessary to prevent assaults on officers. But no officers were reported as injured during the protests.3 42. The LMPD’s use of tear gas against peaceful protestors on May 28, 2020 was widely reported in the media. 43. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas against peaceful protestors on May 28, 2020. May 29, 2020 44. Demonstrations continued the next day, on May 29, 2020. An even larger group of protesters marched through downtown Louisville starting in the late afternoon. Many of the protesters were young teenagers.4
3 Mike Baker, 7 People Shot at Louisville Protest Over the Death of Breonna Taylor, N.Y. Times (May 29, 2020), https://www.nytimes.com/2020/05/29/us/louisville-protest-shooting-breonna-taylor html. 4 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020, 10:56 p.m., updated May 31, 2020, 11:00 p.m.), https://www.courierjournal.com/story/news/politics/metro-government/2020/05/28/breonna-taylor-shooting-what-know-louisvilleprotest/5280762002/.
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45. By the early evening, LMPD officers began using flash grenades, tear gas, and pepper balls on the largely peaceful crowd.
46. Plaintiff Attica Scott and her daughter were present at this protest; both were demonstrating peacefully but were shoved by police and then hit with tear gas.
47. For over four hours, flash grenades launched by LMPD “volleyed through the air like cannon-fire” while tear gas deployed by LMPD “wafted across entire city blocks.”5
48. LMPD officers fired pepper balls indiscriminately into the crowd. 49. As one newspaper reported, “[b]y 10 p.m., downtown Louisville looked like a war zone.”6 50. LMPD officers targeted journalists who were covering the chaos, firing pepper bullets at groups of reporters who were videotaping the scene.7 51. Upon information and belief, no LMPD officers were disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous as a result of using tear gas, flash grenades, or pepper bullets against peaceful protestors on May 29, 2020. May 30, 2020 52. On May 30, 2020, Mayor Greg Fischer instituted a 9:00 p.m. citywide curfew and called in the National Guard.8
5 Mandy McLaren, A traumatized generation: Louisville’s youth demand racial justice during mass protests, Louisville Courier Journal (May 30, 2020, 5:31 p.m.), https://www.courierjournal.com/story/news/2020/05/30/breonna-taylor-protest-louisvilles-youth-demand-racial-justice/5291030002/. 6 Id. 7 @wave3news, “WAVE 3 News reporter Kaitlin Rust appeared to have been hit by rubber bullets reportedly fired by an LMPD officer during a protest in downtown Louisville,” Twitter (May 29, 2020, 10:23 p.m.), https://twitter.com/wave3news/status/1266555731731415040?s=20. 8 Darcy Costello, Mayor Fischer sets curfew calls in National Guard for Breonna Taylor protests, Louisville Courier Journal (May 30, 2020, 9:49 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/30/mayor-fischer-sets-breonna-taylor-protest-curfew-calls-national-guard/5290690002/.
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53. Protesters began to gather downtown for peaceful demonstrations in the afternoon on May 30. Some volunteers brought stockpiles of water and milk to use both as eyewash due to LMPD’s indiscriminate use of tear gas, as well as to provide essential drinking water for the protest on a long sunny day. They stored these stockpiles in Jefferson Square Park for all protesters to use.
54. At approximately 7:30 p.m., while protesters were peacefully demonstrating, a group of plainclothes LMPD police officers began destroying the protesters’ stockpiles without explanation.9
55. Upon information and belief, LMPD officers intentionally destroyed the protesters’ supplies to discourage protesters from remaining at the demonstrations.
56. Upon information and belief, LMPD officers had decided to use tear gas on protesters before they began to destroy the protesters’ supplies.
57. At approximately 8:00 p.m.—an hour before the official curfew and thirty minutes after destroying the protesters’ stockpiles of water and milk—LMPD officers began to launch tear gas into the crowd of peaceful protesters and beat them back with batons. At the time, some protesters had lain down on the street while chanting for police accountability.
58. LMPD officers launched tear gas at a crowd of protesters, including former State Representative Charles Booker, who were standing in a place several yards away from the riot line.10
9 Natalie Neysa Alunda, Police officers in Louisville smash milk jugs and water bottles at Breonna Taylor protest, Louisville Courier Journal (May 30, 2020, 9:43 p.m.), https://www.courierjournal.com/story/news/local/2020/05/30/breonna-taylor-protest-louisville-police-smash-protesterssupplies/5295840002/. 10 Charles Booker (@Booker4KY), “We were yards away. No one was confrontational. It was not 9p. They started throwing gas at us anyway. I wish I could say this is unbelievable,” Twitter (May 30, 2020, 8:52 p.m.), https://twitter.com/Booker4KY/status/1266895243913367553?s=20.
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59. Approximately 40 protesters were arrested.11 60. When asked about LMPD’s conduct, Defendant Fischer conceded that the protesters were nonviolent, but he nonetheless defended the use of tear gas and batons by saying the demonstration “looked like it was going to be taking a turn for the worse,” and that police used their judgment.12 61. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas and batons on nonviolent protestors. May 31, 2020 62. The next evening saw similar violent police responses to largely peaceful protests. 63. In the early evening on May 31, 2020, approximately 1,000 protesters gathered at the Muhammad Ali Center in downtown Louisville. From there, they marched to Jefferson Square Park, arriving shortly before 8:00 p.m.—again an hour before official curfew. 64. Almost immediately, LMPD officers arrived at the park and decreed that the demonstration was an unlawful assembly without providing any further explanation. 65. Just minutes later, LMPD officers began firing flash bangs (explosive devices commonly used by militaries, which cause temporary blindness, deafness, and loss of balance) and tear gas into the peaceful crowd, forcing protesters out of the park and onto the surrounding streets.
11 Rob Byers, Curfew remains in effect for Louisville for at least another night amid protests, Louisville Courier Journal (May 31, 2020, 11:54 a m.), https://www.courier-journal.com/story/news/local/2020/05/31/breonna-taylorprotests-louisville-curfew-remains-effect-sunday/5299457002/. 12 Darcy Costello, Breonna Taylor protestors question police tactics used prior to Louisville’s curfew time, Louisville Courier Journal (May 31, 2020, 5:50 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/31/breonna-taylor-protesters-question-lmpd-tactics-against-saturday-rally/5300642002/.
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66. LMPD officers also fired projectiles at people holding innocuous objects like
umbrellas.
67. As protesters got into their cars to drive away from the protest, LMPD officers lined up on an overpass and fired at cars, breaking the windows of several vehicles.13
68. Approximately 100 protesters were arrested and held in police custody.
69. LMPD further defended the decision to use tear gas to disperse the crowd prior to
the start of the official city-wide curfew, by claiming that “people with leaf blowers [were] in the
crowd. We know those are used for things like dispensing powder chemicals and for blowing gas back toward police.”14 City officials also claimed, without providing any evidence, that leaf blowers were loaded with bleach.15
70. Later that evening, and two and a half miles from the site of the protests
downtown, LMPD officers and the National Guard shot and killed David McAtee while
attempting to disperse a small social gathering in the parking lot of Mr. McAtee’s restaurant.
71. Upon encountering the group, LMPD officers and the National Guard began
firing pepper balls. One of the pepper balls came dangerously close to striking Mr. McAtee’s
niece in the head.
72. Mr. McAtee, in response, drew a handgun and fired a warning shot into the air.
13 Painkiller Gillz (@Itz5500Gillz), “This is LMPD shooting at peoples vehicles as they tried to go home from the protest…they was us dead in Louisville, ky,” Twitter (June 1, 2020, 9:52 a m.), https://twitter.com/Itz5500Gillz/status/1267454024288292867. 14 Hayden Ristevski (@HaydenWDRB). “Metro Council President David James tells WDRB ‘police saw people approaching that had leaf blowers loaded wth bleach that was intended to blow at police. So they sent out the tear gas.’ James says police were trying to disperse the crowd because that. UPDATE: response from @LMPD spokesperson…” Twitter (May 31, 2020, 10:24 p.m.), https://twitter.com/HaydenWDRB/status/1267280879614857219?s=20. 15 Brooks Holton, Protestors in Louisville question why police fired tear gas before curfew, WDRB Louisville, KY (May 3, 2020), https://www.wdrb.com/news/protesters-in-louisville-question-why-police-fired-tear-gas-beforecurfew/article_50da8e76-a3a9-11ea-95d8bf6a8ed76863.html?utm_medium=social&utm_source=email&utm_campaign=user-share.
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73. Approximately eight seconds later, LMPD and National Guard officers fired eighteen live rounds at Mr. McAtee; one bullet from a National Guard officer struck Mr. McAtee, killing him.16
74. None of the LMPD officers had turned on their body cameras, despite a mandate to do so in LMPD’s own operating policies.
75. Upon information and belief, no LMPD officers have been disciplined by Defendant Fischer, Defendant Schroeder, or Defendant Chavous for using tear gas, flash bangs, pepper balls, and other projectiles on peaceful protesters. June 1, 2020
76. The next day, on June 1, 2020, Defendant Schroeder was appointed as Interim Chief of the LMPD.
77. That evening, protesters again congregated in Jefferson Square Park. 78. The demonstration was peaceful; protesters and police officers even linked arms at points.17 79. Nonetheless, at 10:00 p.m., officers fired tear gas and pepper balls into the crowd to disperse the protesters. 80. Plaintiff Patrick Moore was present, peacefully protesting the excessive use of police force. As he left the park, he was shot in the left eye with a pepper ball.
16 Billy Kobin and Kala Kachmar, Investigation launched into LMPD. National Guard fatal shooting of West End business owner, Louisville Courier Journal (June 1, 2020, 8:37 a.m.), https://www.courierjournal.com/story/news/2020/06/01/beshear-authorizes-investigation-into-louisville-police-national-guardshooting/5306733002/. 17 Lucas Aulbach, The morning after: What happened at Monday’s David McAtee and Breonna Taylor protests, Louisville Courier Journal (June 2, 2020, 6:31 a m.), https://www.courierjournal.com/story/news/local/2020/06/02/david-mcatee-breonna-taylor-protests-louisville-mondayrecap/5315267002/.
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81. The next day, on June 2, 2020, one LMPD officer, Officer Katie Crews, posted a photo of a protester offering her flowers on her social media page and wrote, “I hope the pepper balls that she got lit up with a little later on hurt. Come back and get ya some more ole girl, I’ll be on the line again tonight.”18
82. Officer Crews was one of the LMPD officers involved in the shooting death of David McAtee just two days prior, but she was allowed to continue in her duties.19
83. Although Officer Crews is under investigation for her social media post, upon information and belief, no LMPD officers have been investigated or disciplined by Defendants Fischer, Schroeder, or Chavous for using tear gas and pepper balls on peaceful protesters. Defendants Fischer, Schroeder, and Chavous Approve of and Sanction LMPD’s Use of Force, Resulting in Continued Use of Force by LMPD Officers
84. Upon information and belief, Defendants Fischer, Schroeder, and Chavous knew and, either explicitly, or through acquiescence, approved of LMPD’s decision to use tear gas, flash bangs, pepper balls, batons, and other forms of force on protesters between May 28, 2020 and June 1, 2020.
85. The version of LMPD’s Standard Operating Procedures that was in effect at the time required supervisors—including Defendants Chavous and Schroeder—to be notified any time chemical agents, including pepper balls, were deployed.20
18 LMPD officer under investigation after Facebook post about protestor, WDRB Louisville, KY (June 2, 2020), https://www.wdrb.com/news/lmpd-officer-under-investigation-after-facebook-post-aboutprotester/article_b295d622-a4d8-11ea-a7a4-931a2800a02d.html. 19 Billy Kobin and Kala Kachmar, Investigation launched into LMPD. National Guard fatal shooting of West End business owner, Louisville Courier Journal (June 1 2020, 8:37 a m.), https://www.courierjournal.com/story/news/2020/06/01/beshear-authorizes-investigation-into-louisville-police-national-guardshooting/5306733002/. 20 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES (“SOP”) § 3.1.1 (May 31, 2004).
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86. LMPD’s Standard Operating Procedures also required approval from a commanding officer—such as Defendants Schroeder and Chavous—prior to using any chemical agents, including pepper balls.21
87. LMPD’s conduct came under intense media scrutiny almost immediately. But Defendants Fischer, Schroeder, and Chavous have done nothing to correct LMPD’s illegal course, instead acquiescing to LMPD’s use of violent force on peaceful protesters.
88. Defendant Fischer has defended his and LMPD’s prior decisions, despite the results, and has consistently refused to take meaningful action to protect protesters from unlawful uses of force.
89. On May 30, 2020, just hours after LMPD officers destroyed peaceful protesters’ stockpiles of water and milk, arbitrarily enforced curfew restrictions over an hour earlier than announced, and launched tear gas at dispersing crowds as described above, Defendant Fischer issued a statement thanking LMPD for “show[ing] discipline, restraint and professionalism under extremely volatile circumstances.” He then continued “to thank the law enforcement who came in to assist from other agencies,” as well.22
90. In the same statement, Defendant Fischer stated that although he respected the right to protest peacefully, he instructed Louisville residents to “stay home.”
91. When asked at a news conference about LMPD’s destruction of protesters’ supplies, Defendant Fischer defended LMPD’s conduct, speculating that police may have
21 SOP § 9.1.8 (Nov. 7, 2019). 22 Mayor Greg Fischer’s statement on May 29 protests, LouisvilleKY.Gov (May 30, 2020), https://louisvilleky.gov/news/mayor-greg-fischer%E2%80%99s-statement-may-29-protests.
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believed there were flammable materials hidden among milk and water.23 Defendant Fischer did
not explain, and has not explained, any basis for such a conclusion.
92. Defendant Fischer has repeatedly defended LMPD’s use of tear gas on protesters.
In a statement on June 2, 2020, Defendant Fischer’s spokesperson, Jean Porter, said that although
the Mayor was “sorry that some peaceful protesters were caught up in that,” LMPD is there “to
protect public safety and keep order, and they make the decision to use tear gas when they
believe that is in jeopardy.”24
93. On June 3, 2020, Defendant Fischer issued a statement praising LMPD for
“putting in long hours,” while “suffering insults and assaults” in dealing with protests. The
Mayor continued: “They are frustrated . . . I absolutely respect that. That doesn’t change my
appreciation of the work they are doing, as I’ve expressed time and time again.”25
94. On June 10, 2020, in response to pressure from the public and the Louisville
Metro Council, Defendant Schroeder announced that LMPD officers would no longer be
permitted to use tear gas without his approval.26
95. The June 27, 2020 amendments to LMPD’s Standard Operating Procedures make
no reference to this new restriction.27
23 Amina Elahi, Louisville Mayor Claims, Without Details, Protestors’ Seized Supplies were Hazardous, WFPL News Louisville (May 31, 2020), https://wfpl.org/louisville-mayor-claims-without-details-protesters-seizedsupplies-were-hazardous/. 24 Andrew Wolfson and Darcy Costello, Mayor Fischer says Louisville welcomes peaceful protest. Why was one cleared with tear gas?, Louisville Courier Journal (June 2, 0202, 6:36 a m.), https://www.courierjournal.com/story/news/2020/06/02/kentucky-leaders-question-why-louisville-police-tear-gassedprotesters/5312665002/. 25 Taylor Weiter and Heather Fountaine, Watch: Louisville police walk out on Mayor Greg Fischer, FOP confirms, WHAS11 ABC Louisville, KY (June 3, 2020, 8:07 p m.), https://www.whas11.com/article/news/local/louisvillepolice-fop-mayor-fischer/417-cddce593-b5dc-47e3-836b-25ca773e7109. 26 Tessa Duvall, Sarah Ludd and Ben Tobin, Louisville police roundup: Tear gas limits, detective sidelined, community policing survey, Louisville Courier Journal (June 10, 2020, 11:27 a m.), https://www.courierjournal.com/story/news/local/2020/06/10/louisville-police-cant-use-tear-gas-future-without-directorder/5333275002/. 27 SOP § 9.1.9 (June 27, 2020) (using same language as prior version of SOP).
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96. In the face of mounting public pressure, on June 15, 2020, Defendant Fischer
apologized for the use of tear gas against protesters, and stated that, as a result, he would be
instituting needed reforms to the LMPD’s use of force practices. But the very next day, in
response to criticism from the LMPD, Defendant Fischer walked back his promise, stating that
he had not instructed and would not instruct officers to “stand down” and that Defendant Schroeder was responsible for determining the appropriate course of action.28
97. Upon information and belief, since June 15, 2020, Defendant Schroeder has not
implemented any changes to LMPD’s use-of-force policies to better protect protesters.
98. At a media briefing on May 31, 2020, Defendant Chavous blamed the violence on
“anarchists” who intended to cause chaos—even though she identified no actual violent acts by protesters.29
99. At that same conference, Defendant Chavous defended the decision to fire on individuals carrying umbrellas, saying that umbrellas “can be used as weapons.”30
100. Upon information and belief, Defendants Fischer, Schroeder, and Chavous have
taken no action to reform LMPD’s use-of-force policies or otherwise curtail LMPD’s use of
force against peaceful protesters beyond the announcement regarding central approval of tear gas
usage.
28 Ragsdale, Travis, Mayor Fischer denied claim that he’s giving Louisville police ‘stand down’ orders at protests, WDRB Louisville, KY (June 16, 2020), https://www.wdrb.com/news/mayor-fischer-denies-claim-that-hes-givinglouisville-police-stand-down-orders-at-protests/article_4307b4b2-afe4-11ea-83cf-23b024a8834c.html. 29 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020, 10:56 p.m., updated May 31, 2020, 11:00 p.m.), https://www.courierjournal.com/story/news/politics/metro-government/2020/05/28/breonna-taylor-shooting-what-know-louisvilleprotest/5280762002/. 30 Lucas Aulbach, From tense to touching moments, here’s how Louisville’s protests went down Sunday night, Louisville Courier Journal (June 1, 2020, 6:18 a m.), https://www.courierjournal.com/story/news/local/2020/06/01/breonna-taylor-protest-what-happened-sunday-louisville/5305156002/.
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Defendant City of Louisville’s Ongoing Use of Force and Mass Arrests to Quell Protest and Prevent Recording
101. Following two weeks of relative calm between police and protesters, on June 15, 2020, the LMPD officers resumed their use of aggressive tactics and potentially lethal weapons on protesters.
102. Throughout that afternoon and evening, LMPD officers deployed smoke grenades, pepper rounds, flash bangs, and a sound cannon against protesters. They also continued to target individuals, including members of the press, who were documenting the protests and the police response.
103. In the late afternoon of June 15, a small group of peaceful protesters was gathered near 9th Street and W. Chestnut Street. A line of LMPD officers in helmets, armor, and riot shields moved toward the protesters, ordering them to move back. When the protesters did not leave, the police marched north on 9th Street firing pepper balls and impact rounds toward the crowd.
104. As the police moved down the road, they approached Plaintiff Schauer, who was standing still on the sidewalk and was recording the officers with her cellphone. Two officers walked over to her, threw her to the ground, and fired pepper balls at protesters who attempted to help her. An officer then arrested Plaintiff Schauer.
105. The police eventually moved down to the area around W. Jefferson Street and 7th Street, near LMPD headquarters, at which point the police took several steps backwards. The protesters cheered, thinking that the police were backing off. Instead, the police fired a round of pepper balls into the crowd.
106. Shortly thereafter, police used a long-range acoustic device (“LRAD”), a sonic weapon that deploys a high-frequency sound wave, on peaceful protesters.
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107. During the protests, a number of riot police gang-tackled a man in the middle of the road. The officers’ actions were captured by a security guard at the Hall of Justice, who recorded it on his cellphone camera from behind a window. As the guard recorded the activity, an officer fired a pepper ball at him, striking and cracking the window near where the guard had been standing. LMPD confirmed that an officer had fired at the security guard. The guard told Buzzfeed News that he had not reported the incident because he feared retaliation from the police.31
108. Later that night, another officer ran his car into a peaceful protester. The man told WFPL, “I watched [the officer] look at his back up cam and he ran right into me, literally.”32
109. Police use of force against peaceful protesters continued throughout the week. On the morning of Wednesday, June 17, 2020, police again fired pepper balls at peaceful protesters on multiple occasions. One officer shot a reporter from the Courier Journal, who was recording the protests, with a pepper ball.
110. On Thursday, June 18, 2020, the police used both peppers balls and LRADs against peaceful protesters again. The police reportedly shot one protester in the eye with a pepper ball. Another protester, who was sleeping in the park, awoke to an officer pointing a Glock firearm in his face.
111. LMPD has continued to use military-grade crowd control technologies to force peaceful crowds to disperse—even doing so the same day it made representations to this Court
31 Amber Jamieson, Police Shot At A Man Who Filmed Them Tackling Protestors in Louisville, BuzzFeed News (June 17, 2020, 8:50 p.m.), https://www.buzzfeednews.com/article/amberjamieson/louisville-shot-fired-securityguard-video. 32 Staff, User of Pepper Balls Resumes At Downtown Louisville Protests, WFPL News Louisville (June 15, 2020), https://wfpl.org/use-of-pepper-balls-tear-gas-resumes-at-downtown-louisville-protests/.
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that Plaintiffs had offered nothing but speculation in support of their concern about the continuing use of such tactics.
112. On August 25, 2020, during a hearing before this Court, Defendants stated that emergency relief was inappropriate because crowd control technologies “ha[d] not been used since the middle of June.” Tr. at 14:16–14:17.
113. Defendants further defended LMPD at the hearing, asserting that “it’s just speculation heaped upon conjecture that these devices are going to be utilized or that they need to be utilized.” Tr. at 18:6–18:8.
114. Based on Defendants’ representations, the Court declined to enter emergency relief for Plaintiffs to prevent the use of military-grade crowd control technology.
115. Just hours later, LMPD fired dozens of rounds of pepper balls into a peaceful crowd attempting to provide medical attention to a protester who had been hit by a speeding police car.
116. LMPD officers have also continued to engage in mass arrests of protesters, many of whom have had charges subsequently dropped. In total, between May 28, 2020 and July 24, 2020, over 500 protesters have been arrested.33
117. In conducting these arrests, LMPD has continued to target those recording or livestreaming the police response to protesters.34
33 Hayes Gardner, 49 days and 435 arrests: Protestors in Breonna Taylor movement unfazed by charges, Louisville Courier Journal (July 16, 2020, 1:13 p m.), https://www.courier-journal.com/story/news/2020/07/16/breonna-taylor-
protesters-arrests-show-we-mean-business/5434947002/; https://www.wdrb.com/news/76-demonstrators-arrested-
after-shutting-down-market-street-as-part-of-breonna-taylor-protests/article_4f0f7000-cde5-11ea-b691cf4c20dff0d1 html. 34 Lucas Aulbach, Livestreamers at Breonna Taylor protests believe Louisville police are targeting them, Louisville Courier Journal (July 5, 2020, 3:23 p m.), https://www.courier-journal.com/story/news/local/2020/07/05/louisvillebreonna-taylor-protesters-say-police-target-live-streamers/5380284002/.
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118. Many protesters were initially charged with serious offenses, including felony
offenses that carry possible prison time.
119. For instance, on Tuesday, July 14, 2020, more than 100 protesters arrived at
Attorney General Daniel Cameron’s residence in Louisville to protest the Attorney General’s
Office’s delay in investigating the killing of Breonna Taylor.35 Eighty-seven of the protesters
were ultimately arrested and charged with Intimidating a Participant in the Legal Process, a
felony.
120. Three days later, the County Attorney for Jefferson County, Mike O’Connell,
announced that “in the interest of justice and the promotion of the free exchange of ideas,” his
office was dismissing all of the 87 felony charges brought against the peaceful protesters.36
121. On August 9, 2020, LMPD announced via its official Twitter account that
protesters would not be allowed to march in public roadways.37 It stated that protesters who did
march in streets “will be eligible for citation and/or arrest.”38
122. On August 25, 2020, LMPD arrested 71 protesters for marching on streets, rather
than on sidewalks or green spaces.39
3587 charged with felony after protest on AG Daniel Cameron’s lawn in Louisville, WLKY News, Louisville KY (July 14, 2020, 8:46 p m.), https://www.wlky.com/article/protesters-march-through-east-louisville-to-ag-danielcamerons-home/33313871. 36 County attorney dismissing felony charges for protestors involved in sit-in at Cameron’s home, WDRB Louisville, KY (July 17, 2020), https://www.wdrb.com/news/county-attorney-dismissing-felony-charges-forprotesters-involved-in-sit-in-at-camerons-home/article_2a3ce3d2-c851-11ea-bd89-d7f2aba6b1b9 html. 37 LMPD (@LMPD), “LMPD continue to balance the First Amendment right to protest with the public safety needs of the entire community. For nearly 75 days, Louisville residents have taken to the streets to express their desire for accountability and change,” Twitter (Aug. 9, 2020, 4:35 PM), https://twitter.com/LMPD/status/1292560250097336321?s=20. 38 Id. 39 Jonathan Bullington, Emma Austin, Hayes Gardner, and Bailey Loosemore, A total of 71 people arrested during Tuesday’s protests in Louisville, police say, Louisville Courier Journal (Aug. 25, 2020), https://www.courierjournal.com/story/news/local/breonna-taylor/2020/08/25/breonna-taylor-protests-64-arrested-louisvillemarch/5625256002/.
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123. In response to an isolated and random shooting on June 27, 2020, LMPD began enforcing an 11:00 p.m. curfew at Jefferson Square Park, the main site for organized demonstrations.
124. LMPD officers also violently tore down encampments that protesters had erected in the park, destroying protesters’ property. Defendant Schroeder recognized that LMPD officers’ actions were “less than our standards” and apologized for the officers’ actions.40
125. Upon information and belief, LMPD officers’ actions in destroying protesters’ property was motivated in part by a desire to punish protesters for exercising their First Amendment rights.
126. The curfew at Jefferson Square Park remains in effect, despite no further instances of violent conduct.
127. Protests have continued nearly daily through downtown Louisville as of the date of this filing.
128. The Kentucky Attorney General’s investigation into the killing of Breonna Taylor remains pending. The conclusion of that investigation is likely to trigger larger protests and more aggressive police responses.
129. On July 16, 2020, the Louisville Metro Council opened an investigation into whether Defendant Fischer and LMPD’s conduct in response to the peaceful protests warranted Defendant Fischer’s removal from office.41
40 Kelli Dugan and Cox Media National Content Desk, Police identify victim in fatal Louisville protest shooting; suspect in custody, Fox 23 News Louisville KY, (June 28, 2020), https://www.fox23.com/news/trending/policeidentify-victim-fatal-louisville-protest-shooting-suspect-custody/5BE6L63XLJGRHHDTMHQHPQYVBA/. 41 Madeline Holcombe, Mirna Alsharif and Elizabeth Joseph, Louisville mayor to be investigated for handling or protestors and Breonna Taylor’s case, CNN (July 16, 2020, 6:38 a.m.), https://www.cnn.com/2020/07/16/us/louisville-investigation-mayor-taylor-protest/index.html.
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The Dangers of “Less-than-Lethal” Force 130. Although termed “nonlethal” or “less-than-lethal” force, military-grade crowd
control devices expose targets to serious risks of injury, and even death. 131. The Sixth Circuit has recognized the significant damage done by using a chemical
irritant such as tear gas: the gas “burns the face [and] nostrils, restricts breathing passages, and causes blindness. It causes a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx.” United States v. Mosley, 635 F.3d 859, 862 (6th Cir. 2011) (internal quotation marks and citations omitted)
132. Studies have found that individuals exposed to tear gas can continue to experience significant adverse health consequences up to one month after exposure.42
133. Despite being frequently described as non-lethal technology, tear gas can result in death. Recently, a protester in Ohio who was exposed to tear gas and pepper spray died from cardiac arrest.
134. The use of tear gas during the ongoing Novel Coronavirus – 2019 (“COVID-19”) pandemic creates additional risks for those exposed. COVID-19 is spread through respiratory droplets, which are spread by coughing, sneezing, and talking.43 In addition to burning of the eyes, nose, and mouth, exposure to tear gas can cause increased nasal secretions, immediate coughing, and sneezing.44
42 Y.G. Karagama, J.R. Newton, and C.J.R. Newbegin. “Short-term and long-term physical effects of exposure to CS spray.” Journal of The Royal Society of Medicine. J.R. Soc. Med. April 2003. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539444/. 43 Cornoavirus Disease 2019 (COVID-19) Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019ncov/faq.html#Spread. 44 Y.G. Karagama, J.R. Newton, and C.J.R. Newbegin, Short-term and long-term physical effects of exposure to CS spray, Journal of The Royal Society of Medicine. J.R. Soc. Med. (April 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539444/.
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135. Public health experts unanimously agree that wearing a respiratory mask is one of the most important ways of preventing the spread of COVID-19.
136. Many protesters taking part in the nationwide demonstrations have thus made sure to don masks before leaving their homes.
137. Because tear gas creates respiratory problems, however, many individuals exposed to tear gas cannot keep their masks on. When large groups of people congregate, remove their masks, and cough or sneeze, the risk of becoming infected with COVID-19 skyrockets.
138. Because tear gas covers an entire area, it cannot be targeted at specific people. It inherently injures everyone exposed to it.
139. Flash bangs can also cause serious injury, and even death. Flash bangs detonated too close to a person can cause burns, loss of limbs, and lasting partial hearing loss. In extreme cases, flash bangs can cause asphyxiation, heart attacks, and internal bleeding.
140. When detonated around gravel or loose glass, flash bangs can send shrapnel flying with enough force to wound those nearby.
141. Because flash bangs cover entire areas, they cannot be targeted at specific people. Flash bangs inherently place everyone exposed to them at risk of serious physical harm.
142. Pepper balls and rubber bullets can cause significant injuries, and even death, if they hit a person’s face, neck, or torso. Because such projectiles are often fired at velocities similar to live ammunition, they cause severe damage upon impact.
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143. A survey of those struck by such projectiles found that they prove fatal approximately 3% of the time, and cause permanent disability approximately 15% of the time.45
Seventy-one percent of those struck with rubber bullets or pepper balls suffered severe injuries that required medical intervention.46
144. Although rubber bullets and pepper balls can be targeted, their use at longer ranges is “likely to be inaccurate and indiscriminate.”47
145. LMPD’s own Standard Operating Procedures recognize that “[t]he potential exists
for [such types of ammunition] to inflict injury or death when they strike the face, eyes, and neck.”48
146. LRADs are sonic weapons that deploy a high-frequency sound wave at a target. 147. LRADs, developed by the military for use in the Iraq War in 2004,49 have been
found to cause significant harm to individuals’ ear drums and can cause permanent hearing loss.
Named Plaintiffs Are Injured by LMPD’s Use of Force 148. All Named Plaintiffs have been victims of LMPD’s disproportionate and violent
response to protests.
Attica Scott
149. Plaintiff Scott first attended demonstrations on May 29, 2020. She and her teenage daughter joined a group of protesters at approximately 5:30 p.m. at 6th Street and W.
Jefferson Street.
45 Rohini J. Haar, Vincent Lacopino, Nikhil Ranadive, Madhavi Dandun, Sher D. Wesier, Death, injury and disability from kinetic impact projectiles in crowd-control settings: a systematic review, BMJ Journals Open, Vol. 7, Issue 12, (2017), https://bmjopen.bmj.com/content/7/12/e018154.full. 46 Id. 47 Physical Human Rights. International Network of Civil Liberties Organizations, https://www.inclo net/pdf/lethalin-disguise.pdf. 48 SOP § 9.1.10. 49 Eric Niiler, Sonic Weapons’ Long, Noisy History, History Stories (August 27, 2018), https://www.history.com/news/sonic-weapons-warfare-acoustic.
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150. Plaintiff Scott attended the demonstrations both to protest the killing of Breonna Taylor and, in her capacity as a Member of the Kentucky House of Representatives, to document what was happening in her community.
151. Shortly before arriving at the protest, she saw footage online of dozens of LMPD officers in riot gear lined up in front of the YUM! Center.
152. For several hours after Plaintiff Scott arrived, she observed no violence by other protesters. Instead, members of the group participated in die-ins, marches, and chanting; some protesters chanted “hands up don’t shoot.”
153. After approximately three hours, Plaintiff Scott observed a small number of people in the crowd throw plastic water bottles. Other demonstrators immediately denounced the behavior.
154. Without warning, the line of LMPD officers began advancing quickly with batons drawn, pushing the crowd back.
155. Defendant Officer J. Johnson noticed Plaintiff Scott recording the scene and approached her, shoving her backward. While backing away, Plaintiff Scott tripped on a box behind her, fell to the ground, and injured her knee.
156. Plaintiff Scott was able to meet up with her daughter, who informed her she was bleeding and needed medical attention. Plaintiff Scott found a medic tent set up by protesters to get first aid for her knee.
157. As she received medical attention at the tent, LMPD officers deployed tear gas. An immediate cloud covered the area. Plaintiff Scott saw a thick cloud of smoke. Plaintiff Scott couldn’t see anything through the smoke. Her eyes started burning badly, and she used her facemask to help act as a barrier between her face and the smoke.
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158. Plaintiff Scott ran from the tear gas. She ultimately met up with her daughter and her friend, and the three went to their car, where they stayed nearby the protest for another twenty or so minutes.
159. Plaintiff Scott was also present at the protest on June 15, where she witnessed LMPD using pepper balls indiscriminately against protesters.
160. On June 18, 2020, Plaintiff Scott filed a formal complaint with LMPD, asking the department to investigate its officers’ inappropriate use of tear gas.
161. LMPD responded by letter dated June 29, 2020, stating that her complaint was being investigated.
162. She has received no further contact from LMPD since that letter. Corbin Smith and Tyler Weakley
163. Plaintiffs Smith and Weakley drove into downtown Louisville to go to dinner on the evening of May 31, 2020, but they decided to first stop by the demonstrations to show support for the community.
164. They arrived downtown and, wearing face masks, began walking towards Broadway Street, where the protest was taking place. On their way, Plaintiffs Smith and Weakley walked past a group of police officers in riot gear who said nothing about a curfew in effect.
165. Plaintiffs Smith and Weakley saw the group of protesters at approximately 8:30 p.m., thirty minutes before the official curfew that had just been implemented was schedule to begin.
166. For fifteen minutes, Plaintiffs Smith and Weakley observed protesters marching and chanting peacefully.
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167. Then, without warning or justification, LMPD officers began deploying flash bangs and tear gas into the crowd, causing a panicked stampede away from the police line.
168. Plaintiffs Smith and Weakley were close to a tear gas cannister that exploded. Plaintiffs Smith and Weakley both inhaled the gas and immediately began choking. For several minutes, Plaintiffs Smith and Weakley both felt as if they were suffocating.
169. Plaintiff Weakley observed a police car drive into the crowd of protesters on a street perpendicular to Broadway Street, further exacerbating the chaos.
170. Tear gas began filling the air, obscuring visibility in the area. Nonetheless, officers began firing pepper balls and rubber bullets indiscriminately.
171. Plaintiff Smith felt a pepper ball fly close to his ear, prompting him and Plaintiff Weakley to start running back to their car.
172. On the way, Plaintiffs Smith and Weakley encountered a line of approximately 40 LMPD officers in riot gear.
173. Plaintiff Smith begged the officers to let them get to their car. The officers responded by drawing and training their weapons on both Plaintiff Smith and Plaintiff Weakley.
174. Both Plaintiff Smith and Plaintiff Weakley then slowly raised their hands above their heads and kneeled on the ground. Both feared that they were about to be shot, perhaps fatally.
175. Although both Plaintiff Smith and Plaintiff Weakley had already submitted, LMPD Officers John Does #1-5 charged and tackled Plaintiff Smith to the ground, slamming him into the road. LMPD Officers John Does #6-9 and LMPD Officer Jane Doe #1 tackled Plaintiff Weakley and pinned her to the ground.
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176. Plaintiff Smith, surprised by the use of force, asked why they were being placed under arrest. Defendant Officer John Doe #1 responded by calling him a domestic terrorist and pressing him further into the ground.
177. Defendant Officer John Doe #2 placed his knee at the base of Plaintiff Smith’s neck and pushed down, further limiting Plaintiff Smith’s ability to breathe. Echoing the haunting words of George Floyd, Plaintiff Smith began pleading that he could not breathe.
178. Defendant Officers John Does #1, 3, 4, and 5 then began to beat Plaintiff Smith with their batons, striking his back and his legs.
179. Plaintiff Smith feared that he would be killed by LMPD Officers John Does #1-5, joining the ranks of countless unarmed Black people killed by aggressive policing.
180. After a few minutes, Defendant Officers John Does #1-9 and Defendant Officer Jane Doe #1 pulled up Plaintiff Smith and Plaintiff Weakley and placed them on the sidewalk curb. Defendant Officer John Doe #3 pulled Plaintiff Smith’s face mask off without explanation.
181. Defendant Officers John Does #1-9 and Defendant Officer Jane Doe #1 then placed both Plaintiff Smith and Plaintiff Weakley under arrest. Neither Plaintiff was told on what basis they were being arrested.
182. Plaintiff Smith was ultimately charged with one count of misdemeanor unlawful assembly and one count of misdemeanor curfew violation. Plaintiff Weakley was charged with one count of felony rioting.
183. LMPD’s conduct profoundly impacted both Plaintiffs Smith and Weakley. 184. As a result of the attack, Plaintiff Smith sustained cuts and bruises to his knees, legs, and back.
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185. Plaintiff Smith, fearful of further police misconduct, did not attend any further protests for approximately one week. He has since returned to protests in Louisville.
186. At every protest he has attended since, he remains afraid that LMPD officers will react as violently as they did on May 31, 2020.
187. Plaintiff Weakley has been traumatized by the events of that night; she has refused to attend any further demonstrations out of fear. She attended one celebration on June 19, 2020, but she began to feel anxious as the sun went down; she left the event early for fear of police crackdown. Willa Tinsley
188. Plaintiff Tinsley first joined the protests on May 28, 2020. She had learned about the demonstrations on social media, and drove downtown to join at approximately 10:00 p.m.
189. When Plaintiff Tinsley arrived at the protests, she observed LMPD officers in riot gear advancing on the protesters. Almost immediately, she saw flash bangs exploding by her and heard pepper balls being fired.
190. A tear gas cannister exploded near Plaintiff Tinsley, who immediately could not open her eyes or breathe because of the pain. Disoriented, she began to run in the direction of the crowd, attempting to leave the area and find her car.
191. Eventually, another protester who saw Plaintiff Tinsley helped wash out her eyes. Plaintiff Tinsley then began to search for her car to go home.
192. As she searched, she encountered another protester who was also looking for his vehicle. As they walked, they encountered LMPD Officers John Does #10-13.
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193. Defendant Officers John Does #10-13 began yelling at Plaintiff Tinsley and the other protester to clear the area. Plaintiff Tinsley responded that they were looking for her car. The other protester told the officers that they were on a public sidewalk.
194. Defendant Officers John Does #10-13 responded by firing pepper balls at Plaintiff Tinsley and the other protester—from just a few feet away. Plaintiff Tinsley was shot in the arm, torso, and leg at close range.
195. Plaintiff Tinsley and the other protester turned and began to run away. Defendant Officers John Does #10-13 continued to fire pepper balls at them, hitting Plaintiff Tinsley on the back and on her legs.
196. In total, Defendant Officers John Does #10-13 discharged approximately 30 rounds of pepper balls at Plaintiff Tinsley and her friend, striking Plaintiff Tinsley approximately 10 times.
197. She sustained significant bruising on her back and legs from the shots. 198. For several days following the incident, Plaintiff Tinsley could not use her arm because of severe pain. 199. Plaintiff Tinsley joined a demonstration on the evening of May 31, 2020. She had learned about the event on social media. 200. She joined the march downtown around 7:00 p.m. When she arrived, the scene was wholly peaceful; protesters were chanting and marching with signs. 201. The protesters were not causing any damage to surrounding property. 202. Despite the peaceful nature of the protesters, Plaintiff Tinsley heard LMPD officers stating that the demonstration was an unlawful gathering.
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203. Plaintiff Tinsley then heard the explosion of tear gas cannisters and saw clouds of smoke filling the air. She saw a flash bang detonate near her.
204. The tear gas blinded her and burned her nose and throat, while the flash bang impaired her hearing and caused her to grow disoriented.
205. Through the cloud of smoke, pepper balls began whizzing by her. Plaintiff Tinsley was struck multiple times in the arms and legs with projectiles, causing significant bruising.
206. Disoriented, and unable to see or hear well, Plaintiff Tinsley stumbled onto a side street. Other protesters poured milk in her eyes to alleviate the burning.
207. Eventually, scared to be alone in the midst of the widespread police violence, she found her way to a group of approximately 40 other protesters.
208. A group of LMPD officers found the protesters and began beating them with batons, ultimately arresting the whole group.
209. Plaintiff Tinsley was held in jail for approximately 30 hours and ultimately charged with one count of misdemeanor curfew violation.
210. While Plaintiff Tinsley was in jail, an LMPD officer told her, in sum and substance: “We’re trying to arrest you guys so you have to spend a night in jail and learn your lesson.”
211. At another point, an LMPD officer told her directly: “This is to teach you a lesson.”
212. Since then, Plaintiff Tinsley has been wary of attending further demonstrations. She has only attended a handful of protests, and never stays after sunset, out of a fear of further police force.
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213. For example, Plaintiff Tinsley planned on attending protests on June 15, 2020. After she learned LMPD was using an LRAD, however, Plaintiff Tinsley, who has hearing problems, decided not to attend the protest. Stevie Schauer
214. Plaintiff Schauer joined a small group of young people on the afternoon of June 15, 2020 for a march through downtown Louisville.
215. Immediately, Plaintiff Schauer noticed that the police presence at the gathering was much more aggressive than on prior days of protests she had attended—even though there were only approximately 50 people protesting, a smaller gathering than the previous protests she had attended.
216. Plaintiff Schauer observed an LMPD helicopter circling protesters from above. 217. As the group of protesters, including Plaintiff Schauer, moved south on 9th Street from W. Jefferson Street towards W. Chestnut Street, they encountered a line of LMPD officers in riot gear—with their batons out—blocking off the street. 218. LMPD officers yelled that the crowd needed to move back. 219. Plaintiff Schauer immediately left the street and got onto the sidewalk, where no officers were present. Other individuals—who, upon information and belief, had not participated in the demonstrations—were also standing on the sidewalk without issue. 220. In an effort to document what was happening, Plaintiff Schauer took out her cell phone and began to record the LMPD officers. 221. Almost immediately after she began recording, LMPD Officers John Does #14-15 broke from the line of riot officers and approached her quickly.
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222. Defendant Officer John Doe #14 yelled “move back” and immediately shoved Plaintiff Schauer to the ground with enough force to bruise her shoulder and twist her ankle.
223. The shove also caused Plaintiff Schauer’s cell phone and eyeglasses to shatter. 224. Plaintiff Schauer—who has a chronic condition that causes joint sensitivity— feared that she had badly injured her shoulder or ankle. 225. Plaintiff Schauer’s friend, who was also at the demonstration, tried to walk over to Plaintiff Schauer to check on her. LMPD officers began firing pepper balls at the friend’s feet. 226. Defendant Officers John Does #14-15 then pushed Plaintiff Schauer to the ground and used a plastic tie to bind her wrists. 227. The plastic tie was coiled tightly enough to bruise her wrists. 228. Plaintiff Schauer was placed under arrest at approximately 7:30 p.m. She was kept in jail for 10 hours and ultimately charged with one count of felony rioting and one count of misdemeanor unlawful assembly. 229. At the precinct, an LMPD officer asked her “Was it worth it? You dirtied your record for this.” 230. Plaintiff Schauer had to keep her ankle wrapped in an elastic bandage for a week to heal the injury she sustained in the course of her arrest. 231. Since this experience, Plaintiff Schauer has been too afraid to participate in further protests. Though she wishes to continue marching in support of the movement for police accountability, she fears further physical violence if she participates in any additional demonstrations. 232. To date, she feels nervous and anxious around police officers.
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Kayla Meisner 233. Plaintiff Meisner attended a demonstration on the evening of May 29, 2020. 234. The group of protesters was peacefully chanting and marching through
downtown. As she marched, Plaintiff Meisner saw tanks lined up along the Second Street Bridge.
235. The protest continued down to the courthouse. After marching around the courthouse several times, Plaintiff Meisner saw police officers stationed on top of buildings, and she saw that police had set up barricades and brought out tanks and police vans.
236. Then, protesters were met by a phalanx of approximately 200 LMPD officers in riot gear and armed with batons, guns, and tear gas.
237. LMPD officers began erecting barricades to prevent people from leaving the area. 238. LMPD officers then threatened to fire into the trapped crowd unless the group sat down. 239. With no options, the group—including Plaintiff Meisner—sat down. 240. Nonetheless, LMPD officers began firing flash bangs and pepper balls and launching tear gas indiscriminately into the seated crowd, prompting a panicked retreat. 241. The wave of tear gas hit Plaintiff Meisner; she was instantly unable to see or breathe from the pain of the irritant. 242. Plaintiff Meisner had to be led away from the scene by a friend; together, they hid in a parking garage nearby as LMPD officers continued to launch tear gas into the dispersing crowd. 243. Plaintiff Meisner then observed LMPD officers open fire on a group of local journalists who were covering the event.
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244. Though she continues to attend demonstrations, Plaintiff Meisner fears further police use of force against peaceful demonstrators. She feared for her life during the events of May 29, and no longer has any trust for public officials or LMPD. She believes that LMPD will retaliate against protesters who are trying to stand up for what is right. Patrick Moore
245. Plaintiff Patrick Moore began attending demonstrations on May 28, 2020. He attended further marches on May 29, May 30, and May 31, 2020.
246. On June 1, 2020, Plaintiff Moore learned of a march scheduled to protest both the killing of Breonna Taylor and the killing of David McAtee. He drove downtown to join the march at approximately 5:00 p.m.
247. Plaintiff Moore joined the protest at Jefferson Square Park. The group marched from the park to the intersection of 26th and Broadway, where David McAtee was shot.
248. The protesters then marched back to Jefferson Square Park. For the entirety of the march, protesters remained peaceful.
249. After returning to the park, a number of protesters decided to stay on and continue peaceful demonstrations, such as chants.
250. Groups of LMPD officers dressed in riot gear began to congregate on the streets around the park.
251. At approximately 10:00 p.m., LMPD officers announced that the gathering in the park was unlawful. Within minutes of making the announcement, LMPD officers began advancing on the gathering and firing pepper balls indiscriminately into the crowd.
252. Fearful of the barrage of projectiles, Plaintiff Moore began to move away from the groups of officers. As he retreated, he turned to look back towards the line of officers.
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253. At that moment, he felt a sharp impact in his left eye, causing immense pain. Immediately, Plaintiff Moore lost vision in his eye.
254. Plaintiff Moore was able to receive medical attention over the weeks following being shot; doctors diagnosed him with traumatic hyphema and a break in his retina.
255. Plaintiff Moore underwent three intrusive surgeries to repair his eye. He was forced to spend two weeks prone, confined to bed, to avoid worsening his condition.
256. To date, Plaintiff Moore has not fully recovered his vision. He may never recover full vision out of his left eye.
257. Since being shot in the eye by LMPD officers, Plaintiff Moore has been too scared to participate in further protests. He has not attended a single march, action, or other demonstration in the three months since he was shot, though he wishes to continue to attend such protests. Kentucky Alliance Against Racial and Political Repression
258. As part of its work combatting racial discrimination in policing, Plaintiff KAARPR has been involved in coordinating and attending many of the recent demonstrations in Louisville.
259. Earlier this spring, Plaintiff KAAPR launched a campaign related to the killing of Breonna Taylor calling for the arrest of those officers responsible for her death, as well as systemic reforms that will prevent excessive use of police force in the future. These include reforms to LMPD’s use of force policies, as well as systems that allow for meaningful community oversight of the LMPD.
260. Plaintiff KAARPR’s members have attended demonstrations and peacefully protested in Louisville between May 28, 2020 and the present.
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261. Many of Plaintiff KAARPR’s members themselves been victims of police abuse during the protests; members who were protesting peacefully have been tear-gassed, shot with rubber bullets, pushed and hit with batons, and experienced flash bangs and LRAD usage.
262. As a result, Plaintiff KAARPR has been forced to divert resources into purchasing first aid supplies, as well as milk and water to treat those injured at protests. Additionally, Plaintiff KAARPR has hired individuals to provide security, and purchased security goggles, food, masks, and cleaning supplies for members attending protests.
263. On at least one occasion, during the course of a protest, LMPD directed sanitation officials to collect Plaintiff KAARPR’s supplies, thus preventing Plaintiff KAARPR from using them and requiring Plaintiff KAARPR to purchase additional supplies.
264. Altogether, Plaintiff KAARPR has spent over $10,000 dollars in these and other purchases for protests responding to police violence.
265. Plaintiff KAARPR has also had to expend significant staff time responding to the excessive use of force by police at the protests.
266. Plaintiff KAARPR has expended time and money to organize additional protests directed towards addressing police use of force at previous protests.
267. Plaintiff KAARPR has also spent staff time participating in various public education events related to the excessive use of police force at the protests. For example, on several occasions, Plaintiff KAARPR’s leadership has responded to local press inquiries regarding the use of excessive force against protestors. Likewise, Plaintiff KAARPR has launched a campaign, encouraging protestors to live stream marches and demonstrations, as a means of recording acts of police violence.
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268. The money and staff time Plaintiff KAARPR has spent on responding to excessive police violence has prevented it from conducted other activities it had planned to engage in.
269. At the beginning of the year, Plaintiff KAARPR had planned to conduct public education events, including various panels and speakers, and organize public rallies related to the lack of adequate education for children attending schools in Louisville’s West End, as well as the need for additional money in the City Budget for the education of Black and Brown children in Louisville.
270. As a result of the increased staff time need to treat protestors injured by police violence, purchase supplies to treat these protestors after they have been injured, respond to media and public inquiries regarding the use of police force, as well as organize additional protests in response to LMPD’s excessive use of force against protestors, Plaintiff KAARPR has been unable to organize these events or otherwise work towards improving education access and education funding.
271. LMPD’s use of force against peaceful protesters to shut down demonstrations has also frustrated Plaintiff KAARPR’s mission to (a) ensure that public fora for free speech and debate regarding issues of human and constitutional rights remain available to all people; (b) eliminate police abuse against peaceful, private civilians; and (c) bring together community members to speak out on issues related to abusive police practices.
CLASS ACTION ALLEGATIONS 272. Plaintiffs seek prospective injunctive relief on behalf of a class of similarly situated individuals under Rule 23(b)(1)(A) and (b)(2) of the Federal Rules of Civil Procedure (“Plaintiff Class”). The Plaintiff Class comprises (a) all Peaceful Protesters who participated in a
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protest activity in the City of Louisville at which police utilized tear gas, flash bangs, long-range acoustic devices, pepper balls, rubber bullets, impact rounds, batons, or other comparable crowd control weaponry (“Crowd Control Weaponry”) between May 28, 2020 and the date of this Amended Complaint, and (b) all people who will be Peaceful Protestors in the City of Louisville in the future or who would be Peaceful Protesters in the City of Louisville in the future but for their fear that LMPD officers will unnecessarily utilize Crowd Control Weaponry. A Peaceful Protestor is defined as an individual who, while in engaging in protest activities, poses no immediate, specific, and articulable threat to the safety of others and is not actively resisting arrest.
273. Louisville’s unnecessary and unreasonable use of Crowd Control Weaponry poses an immediate threat to the Plaintiff Class’s First Amendment right to peacefully protest in a public forum and Fourth Amendment right to be free from the use of excessive force.
274. The Plaintiff Class is so numerous that joinder of all individual members would be impracticable. Thousands of Peaceful Protesters regularly participate in protests related to police practices in Louisville and will continue to do so. According to one report, at least 300 individuals gathered on August 25, 2020 to protest Ms. Taylor’s killing.50 Protestors on June 1, 2020 numbered over 1,000.51
275. The questions of law and fact presented by Plaintiffs are common to all members of the Plaintiff Class. Among others, the questions common to the Plaintiff Class include:
50 Hayes Gardner, Emma Austin, Lucas Aulbach and Joel Shannon, 71 people arrested in Louisville in a day of demonstration over the death of Breonna Taylor, USA Today (Aug. 25, 2020), https://www.usatoday.com/story/news/nation/2020/08/25/breonna-taylor-louisville-protest-untilfreedom/5631870002/. 51 Lucas Aulbach, From tense to touching moments, here’s how Louisville’s protests went down Sunday night, Louisville Courier Journal (Jun. 1, 2020), https://www.courier-journal.com/story/news/local/2020/06/01/breonnataylor-protest-what-happened-sunday-louisville/5305156002/.
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a. Whether the use of Crowd Control Weaponry on Peaceful Protesters causes an immediate end to peaceful demonstrations and actually stifles free speech and peaceful assembly on matters of significant public importance;
b. Whether the use of Crowd Control Weaponry on Peaceful Protesters is likely to deter a person of ordinary firmness from participating in further protests or demonstrations;
c. Whether the use of Crowd Control Weaponry on Peaceful Protesters creates a significant risk of serious bodily injury;
d. Whether the use of Crowd Control Weaponry on Peaceful Protesters is unnecessary and/or excessive to maintaining public safety;
e. Why LMPD has chosen and continues to choose to use Crowd Control Weaponry on Peaceful Protesters;
f. Whether LMPD officers have issued or will issue any warnings before employing Crowd Control Weaponry on Peaceful Protesters;
g. Whether LMPD has attempted or will attempt to use other forms of crowd control before resorting to Crowd Control Weaponry; and
h. Whether the City of Louisville has ratified the LMPD’s conduct, either through its express statements or by acquiescence.
276. Common issues of law and fact predominate any individual issues. 277. All members of the Plaintiff Class are likely to be subjected to the same practices and policies of the City of Louisville.
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278. Plaintiffs’ claims for prospective relief are typical of the Plaintiff Class. Significant protests continue to occur in the City of Louisville, and both Plaintiffs and members of the Plaintiff Class are reasonably fearful that LMPD will continue to use Crowd Control Weaponry in an unconstitutional manner. Plaintiffs and members of the Plaintiff Class are subject to the chilling effect of these uses of force on their willingness to assemble to peacefully protest.
279. The entire Plaintiff Class will benefit from the injunctive relief sought herein. 280. Plaintiffs have no conflict of interest with any members of the Plaintiff Class, are committed to vigorous prosecution of all claims on behalf of members of the Plaintiff Class, and will fairly and adequately protect the interests of the Plaintiff Class. 281. A class action is superior to any other method for the fair and efficient resolution of this legal dispute, as joinder of all members of the Plaintiff Class is impracticable. Further, the prosecution of thousands of individual actions by individual members of the Plaintiff Class would create the substantial risk of inconsistent or varying adjudications, which would establish potentially incompatible standards of conduct for Defendant City of Louisville. 282. The Plaintiff Class is represented by competent counsel.
COUNT I First Amendment Free Speech and Assembly – 42 U.S.C. § 1983
(Against All Defendants) 283. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 284. At all relevant times, Defendant Officers, Defendant Fischer, Defendant Schroeder, and Defendant Chavous have acted—and continue to act—under color of state law.
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285. Plaintiffs and members of the Plaintiff Class engaged in and/or wish to engage in constitutionally protected speech and assembly by participating in peaceful protests about the killings of unarmed Black people at the hands of police officers.
286. Defendant Officers engaged in use of Crowd Control Weaponry, and the other forms of excessive force detailed above, causing injuries to Plaintiffs and members of the Plaintiff Class.
287. Defendants Schroeder, Fischer, and Chavous approved of and ratified the conduct of Defendant Officers and other LMPD officers who used such Crowd Control Weaponry or other forms of excessive force.
288. Defendants Fischer, Schroeder, and Chavous are final policymakers for all matters related to LMPD’s conduct. Their decisions regarding LMPD matters constitute the official policies of Defendant City of Louisville.
289. Defendants’ conduct is sufficient to deter a person of ordinary firmness from participating in further protests for fear of being subject to similar force, and did in fact actually deter Plaintiffs and members of the Plaintiff Class from participating in further demonstrations.
290. Plaintiffs and members of the Plaintiff Class reasonably fear the continued use of such weaponry at future protests.
291. Upon information and belief, certain Plaintiffs and members of the Plaintiff Class have been actually chilled in their exercise of protected First Amendment rights.
292. LMPD officers have continued to use Crowd Control Weaponry on protesters, including members of the Plaintiff Class, as recently as August 25, 2020.
293. Defendants City of Louisville, Fischer, Schroeder, and Chavous have continued to approve LMPD’s use of force, both expressly and by their acquiescence.
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294. As a direct and proximate result of Defendants’ conduct, Plaintiffs have sustained the physical and emotional damages detailed above.
295. As a direct and proximate result of LMPD’s continued use of tear gas and flash bangs as approved by Defendant City of Louisville, Plaintiffs and members of the Plaintiff Class continue to fear participating in peaceful protests.
COUNT II Fourth Amendment Excessive Force – 42 U.S.C. § 1983
(Against All Defendants) 296. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 297. At all relevant times, Plaintiffs and members of the Plaintiff Class have been peaceful and nonviolent protesters who did not disobey or refuse any police order. 298. Defendant Officers nonetheless used Crowd Control Weaponry on Plaintiffs and members of the Plaintiff Class. 299. By using Crowd Control Weaponry on Plaintiffs and members of the Plaintiff Class, and physically striking and tackling Plaintiffs, Defendant Officers subjected Plaintiffs and members of the Plaintiff Class to excessive force. 300. Defendants Schroeder, Fischer, and Chavous approved of and ratified the conduct of Defendant Officers and other LMPD officers who used such force. 301. Defendants Fischer, Schroeder, and Chavous are final policymakers for all matters related to LMPD’s conduct. Their decisions regarding LMPD matters constitute the official policies of Defendant City of Louisville. 302. As a direct and proximate result of Defendants’ conduct, Plaintiffs and members of the Plaintiff Class have sustained the injuries detailed above.
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303. LMPD officers have continued to use Crowd Control Weaponry on protesters, including members of the Plaintiff Class, as recently as August 25, 2020.
304. Defendants City of Louisville, Fischer, Schroeder, and Chavous have continued to approve LMPD’s use of force, both expressly and by acquiescence.
305. Plaintiffs and members of the Plaintiff Class remain active advocates against police brutality and intend to peacefully protest again within the coming weeks.
306. As a direct and proximate result of LMPD’s continued use of Crowd Control Weaponry, and other forms of physical force as approved by Defendants City of Louisville, Fischer, Schroeder, and Chavous, Plaintiffs and members of the Plaintiff Class will likely be further harmed if they participate in peaceful protests.
COUNT III Common Law Battery (Against Defendant City of Louisville and Defendant Officers) 307. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 308. By deploying Crowd Control Weaponry, live ammunition, and other projectiles at Plaintiffs and members of the Plaintiff Class, Defendant Officers subjected Plaintiffs and members of the Plaintiff Class to a forcible physical touching. 309. At no point did Plaintiffs or the members of the Plaintiff Class consent, acquiesce, or otherwise agree to the touching as detailed above. 310. The forcible touching as detailed above was in no other way privileged. 311. As a direct and proximate result of Defendant Officers’ forcible touching, Plaintiffs and members of the Plaintiff Class suffered the damages herein alleged.
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312. Defendant City of Louisville, as the employer of all LMPD officers, is responsible and liable for torts committed by all LMPD officers under the doctrine of respondeat superior.
COUNT IV Common Law Assault (Against Defendant City of Louisville and Defendant Officers) 313. Plaintiffs and the Plaintiff Class incorporate the allegations in paragraphs 1-260 by reference as if fully set forth herein. 314. By threatening to deploy and in fact deploying Crowd Control Weaponry, live ammunition, and other projectiles at Plaintiffs and members of the Plaintiff Class, Defendant Officers threatened to subject Plaintiffs and members of the Plaintiff Class to a forcible physical touching. 315. At no point did Plaintiffs or the members of the Plaintiff Class consent, acquiesce, or otherwise agree to the touching as detailed above. 316. As a direct and proximate result of Defendant Officers’ forcible touching, Plaintiffs and the members of the Plaintiff Class suffered the damages herein alleged. 317. Defendant City of Louisville, as the employer of all LMPD officers, is responsible and liable for torts committed by all LMPD officers under the doctrine of respondeat superior. PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Plaintiff Class respectfully request that this Court certify this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, and enter judgment in their favor and against Defendants as follows: a. Permanently enjoining Defendants City of Louisville, Fischer, Schroeder, and Chavous, as well as LMPD’s officers, employees, and agents, from the use of Crowd Control Weaponry on Peaceful Protesters;
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b. Requiring Defendant City of Louisville to promulgate official policies restricting the use of Crowd Control Weaponry to situations when a police officer or other person faces an imminent risk of serious physical danger;
c. Awarding such damages to Plaintiffs as will fully compensate them for their loss of rights, as well as their physical and emotional injuries, owing to Defendants’ conduct;
d. Awarding punitive damages against the Officer Defendants and Defendants Fischer, Schroeder, and Chavous;
e. Awarding reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988; and,
f. Granting such other relief as may be just and proper.
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Dated:

September 11, 2020 Louisville, KY

Ashok Chandran* Christopher Kemmitt* Ajmel Quereshi* Kristen Johnson** NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 achandran@naacpldf.org ckemmitt@naacpldf.org aquereshi@naacpldf.org kjohnson@naacpldf.org

Respectfully submitted,
/s/ Ashok Chandran Corey Shapiro Heather Gatnarek Mashayla Hays Aaron Tucek ACLU OF KENTUCKY FOUNDATION, INC. 325 W. Main St. Suite 2210 Louisville, KY 40202 (502) 581-9746 corey@aclu-ky.org heather@aclu-ky.org mashayla@aclu-ky.org aaron@aclu-ky.org
Earl S. Ward* O. Andrew F. Wilson* Samuel Shapiro* Andrew K. Jondahl* EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 eward@ecbawm.com awilson@ecbawm.com sshapiro@ecbawm.com ajondahl@ecbawm.com
*admitted pro hac vice **pro hac vice application pending

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 Case 3:20-cv-00535-CRS Document 21 Filed 08/25/20 Page 1 of 32 PageID #: 131

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY

ATTICA SCOTT, CORBIN SMITH, KAYLA MEISNER, TYLER WEAKLEY, STEVIE SCHAUER, WILLA TINSLEY, and the KENTUCKY ALLIANCE AGAINST RACIAL AND POLITICAL REPRESSION, on behalf of themselves and all others similarly situated,

Civil Action No. 3:20-cv-0535 (CRS)

Plaintiffs, v.

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, GREG FISCHER, individually and in his official capacity as Mayor of Louisville, ROBERT SCHROEDER, individually and in his official capacity as Interim Chief of the Louisville Metropolitan Police Department, LaVITA CHAVOUS, individually and in her official capacity as Assistant Chief of the Louisville Metropolitan Police Department, and LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICER “J.” JOHNSON, LOUISVILLE METROPOLITAN POLICE DEPARTMENT OFFICERS JOHN DOES #1-#15 and JANE DOE #1, in their individual capacities,

Defendants.

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS PAGE NO.
TABLE OF AUTHORITIES ....................................................................................................iii-vii PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 ARGUMENT ...................................................................................................................................6
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS ..................................................................................................................7 A. Named Plaintiffs Have Standing to Seek Injunctive Relief.........................8 B. Named Plaintiffs Are Likely to Succeed on Their First Amendment Claims ........................................................................................................11 1. LMPD’s Conduct Unreasonably Restricts Named Plaintiffs’ Rights to Peacefully Protest ...........................................................11 2. LMPD Has Retaliated Against Those Recording LMPD’s Misconduct .....................................................................................14 C. Plaintiffs Are Likely to Succeed on Their Fourth Amendment Claims.....16
II. PLAINTIFFS FACE IRREPARABLE HARM.....................................................20 III. AN INJUNCTION WOULD HARM NO ONE AND WOULD SERVE THE
PUBLIC INTEREST IN PROTECTING CONSTITUTIONAL RIGHTS ...........22 CONCLUSION ..............................................................................................................................24
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TABLE OF AUTHORITIES
PAGE NO.
Cases
Abay v. City of Denver, No. 20-cv-1616, 2020 WL 3034161 (D. Colo. June 5, 2020) ........................ 12, 14, 17, 20
Albert v. Unknown Individual Kentucky State Police Officers, et al., No. 3:20-cv-00418 (W.D. Ky.) ........................................................................................... 4
Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 593 (7th Cir. 2012) ........................................................................................... 14
Anderson v. Lawless, No. 2:17-cv-1057, 2017 WL 6542532 (S.D. Ohio Dec. 21, 2017 .................................... 15
Anti Police-Terror Project v. City of Oakland, No. 20-cv-03866-JCS, 2020 WL 4584185 (N.D. Cal. August 10, 2020)................... 17, 20
Barnett v. Aultman Hosp., No. 5:11-cv-399, 2012 WL 5378738 (N.D. Ohio Oct. 31, 2012)..................................... 24
Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997) ............................................................................................ 24
Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012) ............................................................................................ 10
Bible Believers v. Wayne Cty., 805 F.3d 228 (6th Cir. 2015) ............................................................................................ 12
Black Lives Matter Seattle-King Cty., et al., v. City of Seattle, et al., No. 2:20-cv-00887, 2020 WL 3128299 (W.D. Wash. June 12, 2020) ........... 13, 17, 20, 22
Brendlin v. California, 551 U.S. 249 (2007).......................................................................................................... 17
Brinkman v. Budish, 692 F. Supp. 2d 855 (S.D. Ohio 2010) ............................................................................. 21
Brower v. County of Inyo, 489 U.S. 593 (1989).......................................................................................................... 17
Budget Charters, Inc. v. Pitts, No. 3:17-cv-722, 2018 WL 1745780 (M.D. Tenn. Apr. 11, 2018) .................................. 10
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Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013) ............................................................................................ 18
Cabaniss v. City of Riverside, 231 Fed. App’x 407 (6th Cir. 2007) ................................................................................. 18
Cabot Corp. v. King, 790 F. Supp. 153 (N.D. Ohio 1992).................................................................................... 7
Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004) ............................................................................................ 23
Chabad of S. Ohio v. City of Cincinnati, 233 F. Supp. 2d 975 (S.D. Ohio 2002) ............................................................................. 23
Cherri v. Mueller, 951 F. Supp. 2d 918 (E.D. Mich. 2013).............................................................................. 9
Ciminillo v. Streicher, 434 F.3d 461 (6th Cir. 2006) ................................................................................ 17, 19, 20
City of Houston v. Hill, 482 U.S. 451 (1987).......................................................................................................... 12
Cole v. City of Memphis, 108 F. Supp. 3d 593 (W.D. Tenn. 2015)........................................................................... 21
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ............................................................................................ 21
Craft v. Billingslea, No. 17-cv-12752, 2020 WL 2308672 (E.D. Mich. May 8, 2020) .................................... 14
Crawford v. Geiger, 996 F. Supp. 2d 603 (S.D. Ohio 2014) ............................................................................. 14
Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson Cty., TN, 274 F.3d 377 (6th Cir. 2001) ............................................................................................ 23
Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917, 2020 WL 3078329 (D. Or. June 9, 2020)............................ 17, 20, 22
Edwards v. City of Martins Ferry, 554 F. Supp. 2d 797 (S.D. Ohio 2008) ............................................................................. 19
Elrod v. Burns, 427 U.S. 347 (1976).......................................................................................................... 21
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Faith Baptist Church v. Waterford Twp., 522 F. App’x 322 (6th Cir. 2013) ....................................................................................... 8
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017).............................................................................................. 14
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) .............................................................................................. 14
Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010) ............................................................................................ 15
Garrison v. Louisiana, 379 U.S. 64 (1964)............................................................................................................ 23
Glik v. Cunnife, 655 F.3d 78 (1st Cir. 2011) ............................................................................................... 14
Graham v. Connor, 490 U.S. 386 (1989).................................................................................................... 16, 17
Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009) ...................................................................................... 18, 20
Griffith v. Coburn, 473 F.3d 650 (6th Cir. 2007) ............................................................................................ 19
Hartman v. Thompson, 931 F.3d 471 (6th Cir. 2019) ............................................................................................ 11
Holzemer v. City of Memphis, 621 F.3d 512 (6th Cir. 2010) ...................................................................................... 14, 15
Jones v. City of Memphis, 531 F. App’x 709 (6th Cir. 2013) ..................................................................................... 11
Kingsley v. Hendrickson, 576 U.S. 389 (2015).......................................................................................................... 18
Kolender v. Lawson, 461 U.S. 352 (1983)............................................................................................................ 9
Lamb v. City of Decatur, 947 F. Supp. 1261 (C.D. Ill. 1996) ................................................................................... 18
Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) .............................................................................................. 6
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Malam v. Adducci, No. 20-cv-10829, 2020 WL 3512850 (E.D. Mich. June 28, 2020) .................................. 22
Martin v. City of Broadview Heights, 712 F.3d 951 (6th Cir. 2013) ............................................................................................ 17
Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020) ...................................... 7
Matulin v. Village of Lodi, 862 F.2d 609 (6th Cir. 1988) ............................................................................................ 16
McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453 (6th Cir.1997) ............................................................................................... 6
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).......................................................................................................... 24
Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .............................................................................................. 7
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).......................................................................................................... 24
O’Shea v. Littleton, 414 U.S. 488 (1974)............................................................................................................ 9
Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566 (6th Cir. 2002) ............................................................................................ 20
Pouillon v. City of Owosso, 206 F.3d 711 (6th Cir. 2000) ............................................................................................ 12
Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) ............................................................................................ 8
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ........................................................................................ 14
Spier v. Elaesser, 267 F. Supp. 2d 806 (S.D. Ohio 2003) ............................................................................. 12
Spier v. Elsaesser, 93 F. App’x 704 (6th Cir. 2004) ....................................................................................... 12
Tatton v. City of Cuyahoga Falls, 116 F. Supp. 2d 928 (N.D. Ohio 2000)............................................................................. 12
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Texas v. Johnson, 491 U.S. 397 (1989).......................................................................................................... 24
Thomason v. Jernigan, 770 F. Supp. 1195 (E.D. Mich. 1991)............................................................................... 13
Thompson v. Grida, No. 1:08-cv-271, 2009 WL 1069793 (N.D. Ohio Sept. 30, 2009) ................................... 19
Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) ............................................................................................ 14
United States v. Mosley, 635 F.3d 859 (6th Cir. 2011) ............................................................................................ 18
Williams v. Wilkinson, 132 F. Supp. 2d 601 (S.D. Ohio 2001) ............................................................................. 10
Zurcher v. Stanford Daily, 436 U.S. 547 (1978).......................................................................................................... 18
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PRELIMINARY STATEMENT For nearly three months, Louisville residents—and people across the country—have been engaged in sustained protests calling for the officers responsible for killing Breonna Taylor to be arrested and criminally charged. The longer that investigation takes, the more frustrated the protesters become—culminating in massive direct actions and demonstrations planned for today, August 25, and in the lead-up to the rescheduled Kentucky Derby, on September 5. Because of the likelihood that the Louisville Metropolitan Police Department (“LMPD”) will use military-grade crowd control weapons at these actions, Named Plaintiffs and the Plaintiff Class1 (together, “Plaintiffs”) will be unable to participate in this week’s scheduled demonstrations without significant risk of serious injuries. LMPD’s violent use of military-style weapons in response to peaceful demonstrations has already forced countless members of the Plaintiff Class to stop protesting out of fear for their safety. Their fears are eminently reasonable. Protesters have lost eyes, contracted COVID-19 after LMPD officers removed their masks, and endured the pain and terror of officers kneeling on their necks, slowly choking them. Without this Court’s immediate intervention, Plaintiffs will be forced to either forego their right to protest in this unprecedented moment in history or risk serious bodily injury for exercising that right. The Constitution does not permit LMPD to force Plaintiffs to make such a choice. Plaintiffs respectfully request that this Court (a) preliminarily enjoin LMPD from using tear gas, flash bangs, long-range acoustic devices, or other similar crowd-control weaponry against peaceful protestors, and (b) immediately issue a Temporary Restraining Order barring
1 The Plaintiff Class comprises all individuals who peacefully participated in any day of protests between May 28, 2020 and July 30, 2020 on which LMPD officers utilized tear gas, flash bangs, pepper balls, rubber bullets, impact rounds, batons, or other comparable crow control weaponry and were actually exposed to crowd control weaponry at those protests. [DN 1 at ¶¶ 250-260.]
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LMPD from using tear gas, flash bangs, long-range acoustic devices, or other similar crowdcontrol weaponry against peaceful protestors until the Court decides Plaintiffs’ preliminary injunction motion.
FACTUAL BACKGROUND Following months of protests in Louisville (Black Lives Matter Decl. ¶¶ 8-9), protest organizers and racial justice activists with the national group Until Freedom are planning a direct action for today, August 25, 2020, to end “BreonnaCon,” the four-day celebration of Breonna Taylor, who was killed by LMPD officers while asleep in her bed.2 According to reports, the action is expected to be a “massive demonstration,” id., at which national figures such as Linda Sarsour, Tamika Mallory, and Porsha Williams will attend. Gatnarek Decl., Ex. E (screenshots of Until Freedom Facebook page). The social media advertisements for the direct action have been shared hundreds of times. Id. Much like Until Freedom’s past demonstrations, the end of BreonnaCon promises to be a significant gathering.3 In preparation for this large-scale action, LMPD has called all their officers in to work for an “all work-day,” interrupting scheduled time off and vacations specifically in order to respond to this protest with the full force of the Department. Gatnarek Decl. Ex. F (LMPD General Memorandum #20-011). At these officers’ fingertips are the military-grade technologies recently stockpiled by LMPD; since the protests in
2 Bailey Loosemore, Until Freedom plans ‘BreonnaCon’ with faith revival, ‘massive demonstration’ in Louisville, LOUISVILLE COURIER JOURNAL (Aug. 18, 2020, 1:10 pm), https://www.courier-journal.com/story/news/local/breonna-taylor/2020/08/18/until-freedomplans-four-day-breonnacon-louisville-honor-breonna-taylor/3392262001/.
3 Bailey Loosemore, National Group Until Freedom Plans to #OccupyKentucky until Breonna Taylor gets justice, LOUISVILLE COURIER JOURNAL (Aug. 4, 2020, 4:01 pm), https://www.courier-journal.com/story/news/local/2020/08/04/breonna-taylor-protests-untilfreedom-plans-occupykentucky/3291312001/.
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Louisville began in late May, LMPD has spent over $330,000 on tear gas, pepper balls, and other crowd-control weaponry to use on demonstrators.4
Nor is there serious doubt that LMPD stands ready and willing to actually use these
technologies. Over the past three months, LMPD officers have consistently responded to large, peaceful gatherings—such as the one planned for today by Until Freedom—by discharging tear
gas, flash bangs, pepper balls, and other military-grade crowd control weapons. Reporters and protesters who have been at these demonstrations have described scenes resembling “a war zone.”5 LMPD has engaged in hours-long assaults on protesters, volleying tear gas and firing
pepper balls into largely peaceful crowds. At times, the tear gas has been so pervasive that it has covered entire city blocks.6
Plaintiffs have paid the price for LMPD’s violence. Plaintiff Willa Tinsley first protested on May 28, 2020. Tinsley Decl. ¶¶ 2–3, 6. Though she was marching peacefully to demand
justice for Breonna Taylor, Ms. Tinsley was tear gassed and exposed to flash bangs, then shot over ten times at close range with pepper balls—including as she tried to run away. Id. ¶¶ 7–20.
The bruising she sustained was so severe that she could not use her arm for two days afterwards.
Id. ¶ 22 & Ex. A (photo of leg bruising). On May 31, 2020, Plaintiffs Corbin Smith and Tyler
Weakley were tear gassed, physically tackled, and beaten with batons just minutes after they
4 Darcy Costello, LMPD spent more than $300,000 on pepper balls, grenades, flashbangs during early protests, LOUISVILLE COURIER JOURNAL (Aug. 10, 2020, 6:16 AM), https://www.courier-journal.com/story/news/politics/metro-government/2020/08/10/louisvillepolice-spent-300-k-pepper-balls-munitions-protests/3303852001/.
5 Police and soldiers return fire, killing man in Louisville, ASSOCIATED PRESS (June 1, 2020, available at https://www.fox5ny.com/news/police-and-soldiers-return-fire-killing-man-inlouisville.
6 Mandy McLaren, 'A traumatized generation’: Louisville’s youth demand racial justice during mass protests, LOUISVILLE COURIER JOURNAL (May 30, 2020, 5:31 PM), https://www.courier-journal.com/story/news/2020/05/30/breonna-taylor-protest-louisvillesyouth-demand-racial-justice/5291030002/.
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joined a peaceful protest. Smith Decl. ¶¶ 10–12, 21–22; Weakley Decl. ¶¶ 5, 7, 12. Mr. Smith was pinned down by five LMPD officers, one of whom knelt on Mr. Smith’s neck while Mr. Smith begged for his life. Smith Decl. ¶ 23. At that same protest, Ms. Tinsley was again tear gassed and shot with pepper balls before being arrested—to “teach her a lesson,” as LMPD officers told her. Tinsley Decl. ¶¶ 27–29, 34–35. And on June 15, 2020, Plaintiff Stevie Schauer was standing on a sidewalk to record aggression by a line of LMPD officers marching down the roadway, when two officers spotted her, jumped onto the sidewalk, and shoved her to the ground, shattering her phone and bruising her shoulders. Schauer Decl. ¶¶ 5, 8–14.7 LMPD officers pinned her down, bound her wrists together with a plastic tie, and placed her under arrest. Id. ¶ 16–17. Since then, she has been too afraid to participate in further demonstrations. Id. ¶ 25.
These experiences are by no means unique to Named Plaintiffs. Jonah Albert, a peaceful protester who attended a demonstration on May 28, 2020, was shot in the head by LMPD officers. Gatnarek Decl. Ex. A (Complaint filed in the matter of Albert v. Unknown Individual Kentucky State Police Officers, et al., No. 3:20-cv-00418 (W.D. Ky.) Patrick Moore, another peaceful demonstrator, was shot in the eye with a pepper ball on June 1, 2020 while simply marching down the street. His retina was torn from his eyeball. See Moore Decl. ¶¶ 13, 18–19 & Ex. A (photo of eye). Mr. Moore has undergone three surgeries to repair his eye and has yet to recover full vision. Id. ¶¶ 18, 21–22. It is unclear if he ever will. Id. ¶ 24.
LMPD has engaged in this pattern of violently silencing protesters with the approval of Defendants Mayor Greg Fischer, Interim Chief Robert Schroeder, and Assistant Chief LaVita
7 Jason Riley (@JasonRileyWDRB), TWITTER (June 16, 2020, 2:53 PM), https://twitter.com/JasonRileyWDRB/status/1272965516286705665.
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Chavous. In the midst of LMPD’s aggressive and unconstitutional response to the protests,
Mayor Fischer has repeatedly praised the police for their “restraint,” and instead of urging the
police to respect the rights of protesters, Mayor Fischer has urged protesters to stop
demonstrating and “stay home.”8 Despite promising reforms to LMPD’s policies on use of force
and use of chemical weaponry, neither Mayor Fischer nor Interim Chief Schroeder has taken any
steps to rein in LMPD’s use of military-grade weaponry.9 Quite the contrary; Mayor Fischer and
Assistant Chief Chavous have blamed protesters for violence, suggesting that protesters were
asking for violence by yelling at or insulting police, or carrying objects like umbrellas.10 In fact,
Mayor Fischer’s acquiescence to brutal force by LMPD prompted the Louisville Metro Council
to open an investigation into his handling of the protests on July 14, 2020. Gatnarek Decl. Ex. D
(Louisville Metro Council Order, July 14, 2020).
While Defendants Fischer, Schroeder, and Chavous have defended LMPD’s actions,
LMPD has continued to fire pepper balls at peaceful protesters and has used long-range acoustic
devices (“LRADs”)—developed for the military invasion of Fallujah, Iraq—on crowds. And
according to recent reporting, LMPD has spent hundreds of thousands of dollars to stockpile tear
8 Mayor Greg Fischer’s statement on May 29 protests, LouisvilleKY.Gov (May 30, 2020), https://louisvilleky.gov/news/mayor-greg-fischer%E2%80%99s-statement-may-29protests.
9 Compare Gatnarek Decl. Ex. B (LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES (“SOP”) § 9.1.8 (Nov. 4, 2019)), with Gatnarek Decl. Ex. C (SOP § 9.1.9 (June 27, 2020)).
10 Tessa Duvall, Darcy Costello, Billy Kobin, Lucas Aulbach, Bailey Loosemore, Mandy McLaren, Olivia Krauth and Sarah Ladd, Sunday updates: Protestors arrested as Breonna Taylor rallies continue around Louisville, Courier Journal (May 28, 2020, 10:56 p.m., updated May 31, 2020, 11:00 p.m.), https://www.courier-journal.com/story/news/politics/metrogovernment/2020/05/28/breonna-taylor-shooting-what-know-louisville-protest/5280762002/; see also Lucas Aulbach, From tense to touching moments, here’s how Louisville’s protests went down Sunday night, Louisville Courier Journal (June 1, 2020, 6:18 a.m.), https://www.courierjournal.com/story/news/local/2020/06/01/breonna-taylor-protest-what-happened-sundaylouisville/5305156002/.
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gas, pepper balls, and other crowd control weapons since the protests started in May.11 LMPD has also engaged in mass arrests, charging hundreds of peaceful demonstrators with felonies designed to silence them. On August 9, 2020, LMPD went even further, banning protests in public streets altogether and threatening to arrest anyone who demonstrates in a roadway.12
LMPD officers have even made social media posts that gleefully celebrate the violence they have used—and plan to continue using—on demonstrators. On May 31, 2020, for example, LMPD Officer Tim King posted on Facebook “Yo, are we fighting tonight?” One of his colleagues responded: “to the death.”13 The next day, on June 1, 2020, LMPD Officer Katie Crews posted a photo of a protester, writing: “I hope the pepper balls that she got lit up with a little later on hurt. Come back and get ya some more ole girl, I’ll be on the line again tonight.”14
ARGUMENT In determining whether to issue a temporary restraining order or a preliminary injunction, district courts consider four factors: “(1) whether the movant has a ‘strong’ likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.” Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (quoting McPherson v. Michigan High Sch. Athletic
11 See supra note 4. 12 LMPD (@LMPD), TWITTER (Aug. 9, 2020, 4:35 PM), https://twitter.com/LMPD/status/1292560250097336321?s=20. 13 Julie Dolan, LMPD investigating 3 officers’ social media posts about protests, WLKY LOUISVILLE, (June 3, 2020), https://www.wlky.com/article/lmpd-investigating-3-officers-socialmedia-posts-about-protests/32745652. 14 LMPD officer under investigation after Facebook post about protestor, WDRB LOUISVILLE (June 2, 2020), https://www.wdrb.com/news/lmpd-officer-underinvestigation-after-facebook-post-about-protester/article_b295d622-a4d8-11ea-a7a4931a2800a02d.html
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Ass’n, 119 F.3d 453, 459 (6th Cir.1997)); Maryville Baptist Church, Inc. v. Beshear, No. 3:20cv-278, 2020 WL 1909616, at *2 (W.D. Ky. Apr. 18, 2020) (noting that “[i]n determining whether to grant a temporary restraining order, the Court considers the same four factors applicable to a motion for preliminary injunction”). These four factors are not, however, prerequisites; rather, they are “interrelated considerations that must be balanced together.” Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006) (quotation marks and citation omitted). For example, “the showing of a strong likelihood of prevailing on the merits will enable a court to issue an injunction despite a lesser showing of irreparable harm.” Cabot Corp. v. King, 790 F. Supp. 153, 155 (N.D. Ohio 1992) (citation omitted).
Here, all four factors counsel in favor of granting emergency relief. Plaintiffs risk being deprived of some of their most fundamental rights: to demonstrate peacefully about one of the most significant political debates taking place today, and to do so free of brutal violence at the hands of police. LMPD’s conduct violates the First and Fourth Amendment rights of Plaintiffs. Because LMPD cannot claim any harm from the enjoining of unconstitutional behavior, and the public interest weighs strongly in favor of allowing members of the public to exercise their rights without fear of violence, this Court should grant the motion for a temporary restraining order. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIMS Plaintiffs are likely to succeed in proving that the LMPD’s wanton discharge of crowd control weapons against peaceful protesters, including those recording police misconduct, violates both the First and Fourth Amendments. LMPD’s continued misconduct creates a serious risk for future injury to give Plaintiffs standing to seek injunctive relief.
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A. Plaintiffs Have Standing to Seek Injunctive Relief LMPD’s past conduct, promises of further enforcement, and stockpiling of weapons has sent a clear message to protesters: the massive protests planned for this week will be met with massive, forceful retaliation. Plaintiffs have standing to seek injunctive relief from this Court. To establish their standing for injunctive relief, Named Plaintiffs need only show “general facts that would suggest that [Defendants] ha[ve] injured [them] . . . through actions . . . [they] reasonably fear[] might be taken as a result of [their] conduct.” Russell v. LunderganGrimes, 784 F.3d 1037, 1049 (6th Cir. 2015). This inquiry is “relaxed in the First Amendment context because of a judicial prediction or assumption that the policy’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Faith Baptist Church v. Waterford Twp., 522 F. App’x 322, 330 (6th Cir. 2013) (internal quotation marks and citation omitted). Here, there is no doubt that Plaintiffs both suffer ongoing injuries as a result of LMPD’s violent responses to past protests and reasonably fear future similar violence. Tyler Weakley, for example, was tear gassed, shot at, tackled, and beaten by LMPD officers at the very first protest she attended on May 31, 2020; since then, she has not attended further demonstrations out of fear of further police violence. Weakley Decl. ¶ 25. Nor have her fears proven unreasonable; at multiple protests since May 31, 2020, LMPD officers have unleashed tear gas, shot protesters with pepper balls, and used other crowd control weapons to punish demonstrators. Patrick Moore and Stevie Schauer fell victim to this continuing violence; Mr. Moore was shot in the eye with a pepper ball by LMPD officers at a demonstration on June 1, 2020, and Ms. Schauer was violently shoved to the ground, pepper balls flying around her, at protests on June 15, 2020. Moore Decl. ¶¶ 5, 13; Schauer Decl. ¶¶ 11–13, 15.
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Under settled law, such “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S. 488, 496 (1974). And the consistency of LMPD’s violent response to protests—deploying crowd-control weaponry at least ten times over three months—can alone establish Named Plaintiffs’ standing to seek injunctive relief. Cf. Kolender v. Lawson, 461 U.S. 352, 355 n.3 (1983) (noting that plaintiff who was arrested fifteen times over two years had shown a sufficiently “credible threat” of further enforcement to seek injunctive relief). Because Plaintiffs have been forced to forego participation in protected speech, they have suffered—and continue to suffer—an ongoing injury. Cf. Cherri v. Mueller, 951 F. Supp. 2d 918, 929 (E.D. Mich. 2013) (finding that group of Muslim Americans suffered an ongoing injury sufficient to confer injunctive standing after repeated profiling at lawful border crossings caused them to cease crossings). Plaintiffs thus have standing to challenge LMPD’s policy15 of using excessive force to stifle political speech.
Even if LMPD’s consistent response to the past nearly three months of protests were alone insufficient to confer standing, its policy statements, coupled with the scale of protests planned for August 25 and through the Kentucky Derby on September 5, promise imminent future violence. First, Defendants Fischer, Schroeder, and Chavous have taken no steps to limit LMPD officers’ discretion to unilaterally declare a protest unlawful and use crowd control weapons to disband it. Rather, all three have staunchly defended LMPD’s conduct.16 LMPD officers retain total discretion to determine that a gathering is unlawful, and use tear gas, flash
15 The LMPD’s use of military-grade crowd control is, at a minimum, a course of conduct that has been tolerated by Defendants Fischer, Schroeder, and Chavous, which entitles Named Plaintiffs to challenge it in this Court. Cherri, 951 F. Supp. 2d at 937 (finding that defendant agency’s unwritten “course of conduct” of religious profiling could be constitutionally challenged).
16 See supra note 8 and 10. 9

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bangs, or any other military-grade crowd control to break it up. Such a broad grant of discretion—in which “a law enforcement officer’s belief, substantiated or not, could trigger unconstitutional conduct on the part of law enforcement”—is powerful evidence supporting standing for injunctive relief. Williams v. Wilkinson, 132 F. Supp. 2d 601, 607 (S.D. Ohio 2001). Second, LMPD officers have made their punitive intent clear—both directly to Plaintiffs and in public social media posts. Two LMPD officers told Plaintiff Willa Tinsley that she had been arrested to “teach [her] a lesson.” Tinsley Decl. ¶¶ 34–35. After shoving Plaintiff Stevie Schauer to the ground and tightly binding her hands, one LMPD officer asked “Was it worth it?” Schauer Decl. ¶ 22. And multiple LMPD officers have threatened—on public social media accounts— further violence against protesters. One officer posted a photo of a protester who had been shot, writing “I hope the pepper balls that she got lit up with a little later on hurt. Come back and get ya some more ole girl, I’ll be on the line again tonight.”17 Two other officers vowed that they would be “fighting” “to the death” in response to the continued protests.18 These threats are indicative of LMPD’s attitude towards protesters, and its intention to continue its pattern of violence to silence them. Cf. Berry v. Schmitt, 688 F.3d 290, 297 (6th Cir. 2012) (finding defendants’ verbal threats of enforcement sufficient to confer standing for injunctive relief).
Finally, the risk of LMPD’s militarized response to future protests cannot be separated from the practical realities underlying Plaintiffs’ claims. See, e.g., Budget Charters, Inc. v. Pitts, No. 3:17-cv-722, 2018 WL 1745780, at *6 (M.D. Tenn. Apr. 11, 2018) (noting that the standing inquiry is not “formalistic,” and must instead look at the “reality of the threat” of future violations) (internal quotation marks, emphasis, and citation omitted). That reality includes the
17 See supra note 14. 18 See supra note 13.
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fact that LMPD has massively grown its stockpile of tear gas, pepper balls, and other crowd control weaponry.19 Already, LMPD has attempted to restrict protesters’ rights to demonstrate, barring protesters from demonstrating in public streets.20 And most recently, in preparation for today’s action, LMPD has recalled all its officers to be on duty, cancelling all vacation time or other time off. Gatnarek Decl. Ex. F. In other words, the powder keg is ready to be lit. Because of the likelihood that Plaintiffs will again be subjected to military-grade crowd control if they participate in further protests, they have standing to seek injunctive relief in this Court.
B. Plaintiffs Are Likely to Succeed on Their First Amendment Claims LMPD officers have unreasonably restricted Plaintiffs’ right to peaceful assembly and unlawfully retaliated against them for recording police misconduct. Defendants’ liability for both of these forms of misconduct is plain under the First Amendment.
1. LMPD’s Conduct Unreasonably Restricts Plaintiffs’ Rights to Peacefully Protest
Defendants’ smothering of Plaintiffs’ political speech in a classic public forum cannot withstand strict scrutiny. “A First Amendment claim depends on three inquiries: (1) whether speech is protected; (2) ‘the nature of the forum’ in which the speech occurs; and (3) whether the government’s restriction on speech satisfies the relevant forum’s associated constitutional standard.” Hartman v. Thompson, 931 F.3d 471, 478 (6th Cir. 2019) (internal quotation marks and citation omitted).
The First Amendment protects protesters’ ability to demonstrate peacefully—indeed, it is “the right[] most fundamental to political discourse.” Jones v. City of Memphis, 531 F. App’x 709, 710 (6th Cir. 2013). It is well-settled that “[e]xpressive activities such as peaceful picketing
19 See supra note 4. 20 See supra note 12.
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with signs and other displays . . . constitute protected speech under the First Amendment.” Tatton v. City of Cuyahoga Falls, 116 F. Supp. 2d 928, 934 (N.D. Ohio 2000). This is particularly true here, even if—perhaps, especially if—Plaintiffs’ demonstrations involve “verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987); accord Spier v. Elaesser, 267 F. Supp. 2d 806, 811 (S.D. Ohio 2003), aff’d sub nom., Spier v. Elsaesser, 93 F. App’x 704 (6th Cir. 2004) (same). Plaintiffs’ First Amendment rights are particularly important to protect in the current political context: an unprecedented moment of political reckoning around the killings of Breonna Taylor, George Floyd, and countless other Black people. Other courts have recognized “the importance of shielding and uplifting this ongoing, nationwide moment” by zealously defending protesters’ First Amendment freedoms. Abay v. City of Denver, No. 20-cv-1616, 2020 WL 3034161, at *4 (D. Colo. June 5, 2020) (granting temporary restraining order barring Denver police department from using tear gas without adequate warning or firing rubber bullets and pepper balls into crowds indiscriminately).
Further, Plaintiffs have engaged in their protected activities in the quintessential public forum of public roadways—“prime areas for public protest[.]” Pouillon v. City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000). Streets and sidewalks “[a]re a traditional public forum which c[an] not be restricted in [an] all-encompassing way.” Id. at 716. In such public fora, LMPD’s restrictions on assembly must satisfy strict scrutiny—“which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights.” Bible Believers v. Wayne Cty., 805 F.3d 228, 253 (6th Cir. 2015).
LMPD’s actions fall far short of this exacting standard. It strains credulity to think that the appropriate response to demonstrations—which, by Defendants’ own admissions, have been
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“largely peaceful”21—is to indiscriminately launch tear gas, flash bangs, and pepper balls at peaceful protesters, and then ban them from demonstrating in public streets altogether. Through both its practice and its official policies, LMPD has closed off this most important of public fora to all demonstrators. Such an approach can hardly be called the “least restrictive” means of maintaining order; in fact, it is difficult to imagine a more burdensome restriction on the right to peacefully demonstrate. Cf. Thomason v. Jernigan, 770 F. Supp. 1195, 1201–02 (E.D. Mich. 1991) (noting that completely barring access to public forum violates the First Amendment). And their efforts have worked; because of LMPD’s pervasive violence, some Plaintiffs have refused to further engage in protected speech. Out of fear of further assault, Tyler Weakley has not attended a demonstration since being tear gassed, shot at, and violently tackled and arrested. Weakley Decl. ¶ 25. Patrick Moore has not returned to any demonstrations after being shot in the eye with a pepper ball, tearing his retina away from his eyeball. Moore Decl. ¶¶ 25, 28–29.
LMPD’s attempts to justify its conduct by claiming that some protesters—a minority, by Defendants’ own admissions—have engaged in some form of violence do not change its obligations to respect the First Amendment. Indeed, numerous courts have recently rejected the notion that discrete acts of violence by protesters warrant precisely the sort of force and overbroad restrictions that LMPD has employed here; “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.” Black Lives Matter Seattle-King Cty., et al., v. City of
21 Darcy Costello, Mayor Greg Fischer ends Louisville curfew after ‘largely peaceful’ protestors ignored it, LOUISVILLE COURIER JOURNAL, (June 4, 2020, updated 6:32 PM), https://www.courier-journal.com/story/news/politics/metro-government/2020/06/04/louisvillecurfew-lifted-as-mayor-says-protests-largely-peaceful/3146726001/.
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Seattle, et al., No. 2:20-cv-00887, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020) (quotation marks and citation omitted); accord Abay, 2020 WL 3034161, at *3.
2. LMPD Has Retaliated Against Those Recording LMPD’s Misconduct LMPD has also ignored the First Amendment’s prohibition on retaliation by targeting journalists and other protesters who attempt to record LMPD’s misconduct. See Holzemer v. City of Memphis, 621 F.3d 512, 515 (6th Cir. 2010) (noting that First Amendment protects people from retaliation for exercising protected speech). Defendants are liable if Plaintiffs show: (1) Plaintiffs engaged in protected conduct; (2) Plaintiffs suffered an adverse action; and (3) there is a causal connection between the two. Id. Courts in this Circuit have found that “there is a clearly established First Amendment right to openly record police officers in public spaces.” Craft v. Billingslea, No. 17-cv-12752, 2020 WL 2308672, at *11 (E.D. Mich. May 8, 2020); see also Crawford v. Geiger, 996 F. Supp. 2d 603, 615 (S.D. Ohio 2014) (finding a “First Amendment right to openly film police officers carrying out their duties”). Every circuit to consider the question has agreed. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 593 (7th Cir. 2012); Glik v. Cunnife, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Recording LMPD’s misconduct “serves a cardinal First Amendment interest,” where “the state has a special incentive to repress opposition and often wields a more effective power of suppression.” Glik, 655 F.3d at 82 (quotation marks and citation omitted). By targeting those recording their conduct, LMPD will effectively evade public oversight, for which there will be no adequate remedy after the fact.
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Nor is there serious dispute that LMPD’s conduct—deploying tear gas, flash bangs, rubber bullets, or other military-grade crowd control—is a cognizable adverse action. To constitute an “adverse action,” a defendant’s conduct need only cause “a person of ordinary firmness [to] be deterred” from protected conduct. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 728 (6th Cir. 2010). Threatening—or actually employing—violence against those recording police undoubtedly satisfied this standard. Holzemer, 621 F.3d at 524; see also Anderson v. Lawless, No. 2:17-cv-1057, 2017 WL 6542532, at *5 (S.D. Ohio Dec. 21, 2017) (holding that threats of physical violence are adverse actions).
Finally, evidence abounds to suggest that LMPD has been motivated at least in part by the Plaintiff Class’s recording of their conduct. Fritz, 592 F.3d at 724 n.3 (affirming mixedmotive theory of retaliation for First Amendment claims). Video evidence shows LMPD’s ongoing use of excessive force has often specifically targeted those who attempt to record officers’ conduct. 22 Plaintiff Stevie Schauer, for example, was standing on the sidewalk and began recording a line of police officers marching down a public roadway. Schauer Decl. ¶ 10. In response, two LMPD officers left the line, got onto the sidewalk, and shoved her to the ground to place her under arrest—even though others were standing on the sidewalk without issue. Id. ¶¶ 9, 11–12. Other officers began to fire pepper balls at those who attempted to come to Ms. Schauer’s aid. Id. ¶ 15. In another encounter caught on video, an officer broke ranks to walk towards and fire pepper balls at a local news crew from Wave 3 News that was covering the protests, despite the fact that no other protesters appeared to be present, and no other LMPD officers were using any force.23 Journalists with the crew were struck with numerous pepper
22 See supra note 7. 23 Shellie Sylvestri, LMPD officer fires pepper balls at WAVE 3 News reporter, photographer during Louisville protest, WAVE 3 NEWS (last updated May 30, 2020, 1:54 PM),
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balls. Id. And on at least one occasion, a man recording violent police conduct from inside his apartment—several stories above ground level—was shot at with a pepper ball.24 These videos, which show that LMPD lacked any justification to shoot at those recording them, provide powerful circumstantial evidence that the recording itself has been a motivating factor in LMPD’s use of force. See Matulin v. Village of Lodi, 862 F.2d 609, 614 (6th Cir. 1988) (finding “lack of a legitimate alternative justification” for conduct was evidence of retaliatory intent).
* * * In short, LMPD officers have violated the First Amendment rights of Plaintiffs to protest in downtown Louisville and to record police misconduct. Because LMPD’s actions lack any legal justification, Plaintiffs are likely to succeed on their First Amendment claims. C. Plaintiffs Are Likely to Succeed on Their Fourth Amendment Claims Plaintiffs are also likely to succeed on the merits of their Fourth Amendment excessive force claim because LMPD’s deliberate and continued use of crowd control weapons—including tear gas, pepper bullets, and other chemical irritants—against peaceful protesters constitutes an unreasonable seizure within the meaning of the Fourth Amendment. First, there is no doubt that LMPD’s use of crowd control weapons against peaceful demonstrators constitutes a seizure triggering Fourth Amendment protection. See Graham v. Connor, 490 U.S. 386, 394–95 (1989). A seizure occurs when a police officer “by means of physical force or show of authority, terminates or restrains [a person’s] freedom of movement.”
https://www.wave3.com/2020/05/29/lmpd-officer-fires-pepper-balls-wave-news-reporterphotographer-during-louisville-protest/.
24 Amber Jamieson, Police Shot At A Man Who Filmed Them Tackling Protesters In Louisville, Buzzfeed News (last updated June 18, 2020, 3:02 PM), https://www.buzzfeednews.com/article/amberjamieson/louisville-shot-fired-security-guardvideo.
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Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotation marks and citations omitted). LMPD utilizes crowd control weapons—especially tear gas and pepper bullets—to control the movement of class members, restraining freedom of movement through the direct application of physical pain and the secondary discomfort caused by chemical irritants. Compl. ¶¶ 33–235; Meisner Decl. ¶¶ 5–7; Tinsley Decl. ¶¶ 28–30; Smith Decl. ¶¶ 11–13, 18. Such application of physical force intended to constrain movement and having the actual effect of restraining movement falls at the core of police activities regulated by the Fourth Amendment. See Brower, 489 U.S. at 595–99; Ciminillo v. Streicher, 434 F.3d 461, 465–66 (6th Cir. 2006) (analyzing excessive force claims against police who shot a person with a beanbag shot as a Fourth Amendment seizure and affirming that “apprehending an individual by way of shooting constitutes a seizure”). Indeed, other federal district courts considering nearly identical uses of crowd control weapons by police against protesters this summer have analyzed these excessive force claims under the Fourth Amendment. See Abay, 2020 WL 3034161, at *4–5 (D. Colo. June 5, 2020); Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917, 2020 WL 3078329, at *3–4 (D. Or. June 9, 2020); Black Lives Matter Seattle-King Cty., 2020 WL 3128299, at *4-5 (W.D. Wash. June 12, 2020); Anti Police-Terror Project v. City of Oakland, No. 20-cv-03866JCS, 2020 WL 4584185, at *13–14 (N.D. Cal. August 10, 2020). LMPD’s use of force against Plaintiffs must thus comply with the reasonableness requirement of the Fourth Amendment.
In determining whether use of force is reasonable, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 386). Courts consider three key factors: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of
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the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. This analysis must be conducted “in light of the totality of the circumstances confronting the defendants, and not to the underlying intent or motivation of the defendants.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). Courts assess reasonableness objectively “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). In the context of force used at protests, “the requirements of the Fourth Amendment must be applied with scrupulous exactitude.” Lamb v. City of Decatur, 947 F. Supp. 1261, 1263 (C.D. Ill. 1996) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978)).
Applying this standard, the Sixth Circuit has found that police use of force against people not under arrest is unreasonable and has specifically condemned the use of chemical irritants such as pepper spray except in a limited set of circumstances. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (“An officer has used excessive force when he pepper sprays a suspect who has not been told she is under arrest and is not resisting arrest.”); Cabaniss v. City of Riverside, 231 Fed. App’x 407, 413 (6th Cir. 2007) (“[T]here is a very limited class of circumstances when the use of pepper spray is proper, including where a detainee is unsecured, acting violently, and posing a threat to himself or others.”); see also United States v. Mosley, 635 F.3d 859, 862 (6th Cir. 2011) (describing the dangers and resulting serious constitutional concerns raised by the use of chemical irritants).25 The Sixth Circuit has also considered the use
25 “[P]epper spray can cause extreme pain and prolonged impairment of bodily organs. The spray burns the face and nostrils, restricts breathing passages, and causes blindness. It causes a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx. Unjustified use of pepper spray in other contexts confirms that it poses a serious risk of physical injury. . . . Its use may constitute excessive force in violation of the Fourth and Fourteenth Amendments.” Moseley, 635 F.3d at 862 (internal citations and quotation marks omitted).
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of impact projectiles in crowd control settings and similarly found that firing a beanbag shot against a person peacefully attempting to leave the scene of a riot was unreasonable. Ciminillo, 434 F.3d at 466–69. Indeed, the Sixth Circuit has unambiguously held since at least 2006 that “[t]he use of less-than-deadly force in the context of a riot against an individual displaying no aggression is not reasonable.” Id. at 468; accord Griffith v. Coburn, 473 F.3d 650, 659 (6th Cir. 2007) (“[C]ases in this circuit clearly establish the right of people who pose no safety risk to the police to be free from gratuitous violence during arrest.”) (quotation marks and citation omitted); Edwards v. City of Martins Ferry, 554 F. Supp. 2d 797, 806 (S.D. Ohio 2008) (applying Ciminillo and holding that “it was objectively unreasonable for the officer to use less-thandeadly force in the context of a riot against an individual who posed no risk, was engaged in no crime, and was not attempting to evade the police”); Thompson v. Grida, No. 1:08-cv-271, 2009 WL 1069793, at *7 (N.D. Ohio Sept. 30, 2009) (citing Ciminillo for the proposition that “even in the midst of a riot, police are charged with distinguishing between the severity of different types of threats posed by arrestees”).
Plaintiffs’ excessive force claims fall squarely within this line of precedent. LMPD officers have used violence against Plaintiffs who were peacefully protesting in downtown Louisville against the killing of Breonna Taylor, George Floyd, and other unarmed Black people by police. Although some sporadic and isolated disruptive acts did occur in the overwhelmingly peaceful demonstrations—such as half-empty water bottles thrown at police—no Plaintiffs engaged in violent acts. The police subjected all protestors to crowd control weaponry (particularly tear gas and pepper balls, both of which are chemical irritants) without giving them warning or an adequate opportunity to disperse, while they were either peacefully exercising their rights to protest or attempting to comply with police orders to disperse. Plaintiffs were not
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rioting or behaving aggressively or violently, nor were they under arrest at the time LMPD officers began firing tear gas and pepper balls at them. As a result, LMPD officers satisfied none of the necessary conditions that the Sixth Circuit has required before finding the use of less-thanlethal force reasonable under the circumstances. See Grawey, 567 F.3d at 311; Ciminillo, 434 F.3d at 468.
Simply put, Defendants flagrantly ignored clearly established federal law by using chemical irritants and other crowd control weapons against class members who were not violent and were neither under nor resisting arrest. This excessive force constitutes an unreasonable seizure in violation of the Fourth Amendment. Consistent with outcomes in other federal courts that have considered similar cases in similar procedural postures this summer, Plaintiffs are likely to succeed on the merits of their Fourth Amendment excessive force claim. See Abay, 2020 WL 3034161, at *4–5; Don’t Shoot Portland, 2020 WL 3078329, at *3–4; Black Lives Matter Seattle-King Cty., 2020 WL 3128299, at *12–13; Anti Police-Terror Project, 2020 WL 4584185, at *13–14. II. PLAINTIFFS FACE IRREPARABLE HARM
Plaintiffs will suffer irreparable harm in the coming days if their peaceful protesting is stifled by violence and the use of military-grade weaponry. Plaintiffs would like to exercise their constitutional rights to peacefully protest at events planned in Louisville between August 25, 2020 and September 5, 2020. Absent relief from this Court, LMPD has made it clear it will continue to use disproportionate violence to stop Plaintiffs from peacefully protesting, causing violations of their First and Fourth Amendment rights, for which there will be no remedy after the fact, and the law is clear that “denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette
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Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). First, as set forth more fully supra, Section I(B)–I(C), LMPD’s use of military-grade
crowd control has denied Plaintiffs their rights under the First and Fourth Amendments. And, as set forth supra, Section I(A), it is imminently likely that LMPD will engage in similar violent force in response to the planned demonstrations between August 25, 2020 and September 5, 2020. Plaintiffs will thus be forced to decide whether to risk their physical safety in order to voice their political opinions—precisely the choice the government cannot subject them to. The loss of these “First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Because “there are no available remedies at law that are adequate to compensate for a loss of First Amendment rights,” Brinkman v. Budish, 692 F. Supp. 2d 855, 866 (S.D. Ohio 2010) (alterations and internal quotation marks omitted), Plaintiffs will suffer irreparable injuries absent this Court’s intervention.
The Fourth Amendment harms that Plaintiffs are likely to endure are also irreparable under the law of this Circuit. In Cole v. City of Memphis, for example, plaintiffs sued on behalf of a class of people who had been subjected to repeated mass sweeps and excessive force by Memphis police. 108 F. Supp. 3d 593, 597 (W.D. Tenn. 2015). In entering an injunction that barred the police from conducting similar sweeps, the Cole court relied on the fundamental nature of Fourth Amendment interest in bodily integrity, reasoning that “because there is an ongoing risk of the deprivation of class members’ fundamental rights, Plaintiffs have shown that legal remedies by themselves are inadequate to resolve the City’s constitutional violations.” Id. at 607. And in the context of recent similar protests, district courts in Washington and Oregon have found that protesters facing the risk of further unconstitutional crowd control tactics such as
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tear gas and pepper balls faced irreparable injuries, warranting injunctive relief. See Black Lives Matter Seattle-King Cty., 2020 WL 3128299, at *4 (finding sufficient risk of militarized police response to protests based on one day of tear gas, flash bang, and foam bullet usage); Don’t Shoot Portland, 2020 WL 3078329, at *4 (finding likelihood of future militarized police response based on one week of tear gas and flash bang usage).
Here, Plaintiffs have been—and will likely again be—subjected to those very same weapons. And the risks that such weapons pose are particularly serious in light of the ongoing COVID-19 pandemic. Members of the Plaintiff Class have protested while wearing face masks, one of the most effective ways to curb the spread of the disease. But LMPD’s conduct has forced many protestors to remove their masks so they can breathe. See Scott Decl. ¶ 11. At other times, LMPD officers themselves have ripped off protesters’ masks without reason. Smith Decl. ¶ 27. And courts in this Circuit have recognized that increasing one’s risk of contracting COVID-19 can constitute irreparable harm “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors[.]” Malam v. Adducci, No. 20-cv-10829, 2020 WL 3512850, at *3 (E.D. Mich. June 28, 2020) (quotation marks omitted).
Without this Court’s intervention, Plaintiffs will be denied two of their most fundamental rights. LMPD will subject them to excessive force and, in doing so, silence them from participating in the political process through peaceful demonstrations. Under settled law, these risks each independently—and certainly when taken together—constitute irreparable harm. III. AN INJUNCTION WOULD HARM NO ONE AND WOULD SERVE THE
PUBLIC INTEREST IN PROTECTING CONSTITUTIONAL RIGHTS Defendants cannot credibly claim that a temporary restraining order would cause substantial harm to others or be contrary to the public interest. It is well-settled that “‘[n]o
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substantial harm can be shown in the enjoinment of an unconstitutional policy.’” Chabad of S. Ohio v. City of Cincinnati, 233 F. Supp. 2d 975, 987 (S.D. Ohio 2002) (citing Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville and Davidson Cty., TN, 274 F.3d 377, 400 (6th Cir. 2001)), aff’d sub nom., Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004). And LMPD has routinely resorted to use of tear gas, flash bangs, and LRADs on peaceful protesters without first attempting other forms of de-escalation; it cannot now complain that military-grade weaponry is somehow necessary to maintaining order. Any incidental burdens in ensuring constitutional policing pale in comparison to the importance of safeguarding protesters’ rights as demonstrations continue in the upcoming days and weeks against police brutality on the Black community.
For these same reasons, enjoining LMPD from unconstitutional policing serves the public interest in protecting constitutional rights and preserving public spaces for debate on topics of utmost public importance. The Sixth Circuit has recognized that the “public interest is served by preventing the violation of constitutional rights.” Chabad, 363 F.3d at 436. It is clearly in the public interest, at this singular moment in history, to protect the rights of those demanding accountability from police departments and those seeking to document this historic moment, without the threat of excessive force and violence by LMPD. Defendants are unable to claim any public interest in their violent response to protests in Louisville, or in their retaliatory conduct in an effort to shield these violent actions from the public eye.
Indeed, “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). Zealous protection of this right “embod[ies] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement,
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caustic, and sometimes unpleasantly sharp attacks on government and public officials.’” Id. at 75 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); accord Barnett v. Aultman Hosp., No. 5:11-cv-399, 2012 WL 5378738, at *8 (N.D. Ohio Oct. 31, 2012) (noting that the First Amendment’s protections must be “zealously guarded” because “they are fundamental to democracy”). The Supreme Court has repeated consistently over the years that protecting this type of speech is the core value behind the First Amendment. See, e.g., Texas v. Johnson, 491 U.S. 397, 411 (1989) (noting that “expression of dissatisfaction with the policies of this country” is “situated at the core of our First Amendment values”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (“This Court has recognized that expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’” (internal citation omitted)); see also Barrett v. Harrington, 130 F.3d 246, 263 (6th Cir. 1997) (“Freedom to criticize public officials and expose their wrongdoing is at the core of First Amendment values.”). This Court, too, should recognize that protecting the people’s ability to engage in core First Amendment speech criticizing Louisville Metro Government’s police policies and practices is squarely in the public interest.
CONCLUSION Plaintiffs are eminently likely to succeed on their claims that Defendants, acting through the LMPD, have violated Plaintiffs’ First and Fourth Amendment rights. And if they do not receive immediate protection from this Court, beginning today and in the following days and weeks, at least some members of the Plaintiff Class will be denied the right to participate in planned protests about police violence at this unparalleled moment in history. Because of the strong public interest in protecting these rights to speak out against injustice, this Court should (a) preliminarily enjoin LMPD from using tear gas, flash bangs, long-range acoustic devices, or
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other similar crowd-control weaponry against peaceful protestors, and (b) immediately issue a Temporary Restraining Order barring LMPD from using tear gas, flash bangs, long-range acoustic devices, or other similar crowd-control weaponry against peaceful protestors until the Court decides Plaintiffs’ preliminary injunction motion.

Dated:

August 25, 2020 Louisville, KY

Respectfully submitted,

Ashok Chandran* Christopher Kemmitt* Ajmel Quereshi* Kristen Johnson* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 achandran@naacpldf.org ckemmitt@naacpldf.org aquereshi@naacpldf.org kjohnson@naacpldf.org
Earl S. Ward** O. Andrew F. Wilson** Samuel Shapiro** Andrew K. Jondahl** EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL LLP 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000 eward@ecbawm.com awilson@ecbawm.com sshapiro@ecbawm.com ajondahl@ecbawm.com

/s/ Heather Gatnarek Corey Shapiro Heather Gatnarek Mashayla Hays Aaron Tucek† ACLU OF KENTUCKY FOUNDATION, INC. 325 W. Main St. Suite 2210 Louisville, KY 40202 (502) 581-9746 corey@aclu-ky.org heather@aclu-ky.org mashayla@aclu-ky.org aaron@aclu-ky.org
*pro hac vice application forthcoming **pro hac vice application pending †application for admission pending
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