ACLU announces filing of lawsuit against the city of Omaha

Today, the ACLU of Nebraska will file a lawsuit in U.S. District Court, challenging constitutional violations in the law enforcement response to Omaha Black Lives Matter protests and seeking court orders to protect future protests.

The lawsuit names the City of Omaha, Omaha Police Chief Todd Schmaderer and Omaha Police Captain Mark Matuza as defendants.

On behalf of the Omaha organization ProBLAC and a diverse group of citizens calling for racial justice, the ACLU of Nebraska is seeking relief on two main fronts. The lawsuit alleges the Omaha Police Department used excessive force and retaliated with force against peaceful Black Lives Matter protesters. It also challenges the vagueness and breadth of ordinances used in the arrests. In short, the lawsuit argues that Omaha Police’s aggressive enforcement of unconstitutionally vague city codes violated protesters’ rights under the U.S. Constitution, chilling peaceful free expression and subjecting protesters to unreasonable arrests and excessive force resulting in injury and trauma.

The litigation focuses on suspect policy and practices of Omaha Police during the Farnam Street march in July and this summer’s initial Black Lives Matter protests outside of Crossroads Mall in late May through early June. At each scene, police met peaceful protestors with militarized force and made mass arrests to enforce minor misdemeanor charges.

ACLU of Nebraska Executive Director Danielle Conrad said the new lawsuit is an important tactic in the organization’s overall efforts to promote police accountability and racial justice.

“The answer to protests against police brutality shouldn’t be more brutality,” Conrad said. “Omaha Police have put Black Omahans and all Omahans calling for justice in the unacceptable position of deciding between their constitutional rights and their own health and safety. We’re asking the courts to intervene, to reaffirm peaceful protesters’ rights and to prevent irreparable damage caused by excessive force going unchecked.”

The lawsuit names a diverse group of eight plaintiffs, including protesters, bystanders, a legal observer and a journalist. All of them were detained or arrested in the Farnam Street March.

Despite the nonviolent nature of the march, police shot a protester at point blank range with pepper ball guns. They fired pepper balls against a group of protesters trapped on a bridge sidewalk. And they arrested 125 people, zip-cuffing their hands, making them sit for hours in a parking lot without water or a restroom, and eventually booking them into Douglas County Jail, a facility that is unequipped to handle such an influx in a safe manner during the COVID-19 pandemic. Many among those arrested said they heard law enforcement and corrections workers suggest the arrests were intended to discourage future participation in protests. Weeks later, Omaha’s city prosecutor dismissed the vast majority of charges due to lack of evidence.

Police engaged in similar tactics at the Crossroads demonstrations, issuing “unlawful assembly” declarations almost immediately before deploying chemical agents to disperse protesters – including those who were peacefully protesting on sidewalks.

ACLU of Nebraska Legal Director Adam Sipple said all evidence suggests protesters’ protected activities were a motivating factor in police’s misconduct.

“Officers’ excessive force accomplished the intended goal of restricting, frustrating, and chilling protesters who were calling for police reform from exercising their First Amendment rights,” Sipple said.

Arrested protesters faced charges under Omaha City Code Section 20-44, which prohibits obstructing public ways. City code defines obstructing as causing unreasonable inconvenience or hazard. A similar ordinance, 20-45, prohibits failing to follow an official request or order to move to prevent obstruction.

The lawsuit seeks a declaration that both ordinances are overbroad because they restrict more protected free speech than necessary, give law enforcement too much discretion on when and how to enforce them, and create an undue risk of chilling participation in lawful expressive activity.

The litigation requests a full evidentiary hearing and seeks two injunctions: one prohibiting police from relying upon the traffic ordinances to shut down peaceful protest in the street, and another prohibiting police from using chemical agents to disperse peaceful protesters. The lawsuit also requests a judgment that defendants violated each plaintiff’s constitutional rights, along with any damages proven at trial.

Protester & Plaintiff Experiences

The following quotes recount the experiences of protesters and other plaintiffs, recorded in preparation for litigation.

“I continued to repeat, ‘We are peacefully protesting!’ using my megaphone. I also encouraged participants ‘Don’t be afraid’ and to ‘Keep your cameras out.’ As I did so, an officer suddenly attacked me from behind, placed his hands on my neck and threw me to the ground as other officers jumped in, repeatedly kneeing me in the mid-section. They then zip-cuffed me and ordered me to remain by the concrete divider separating the street from the bridge’s sidewalk. When the officers arrested me, the crowd became upset and began yelling at the police. Some of the police present responded by firing pepper balls at them.”
Alexander (Bear) Matthews, plaintiff and Farnam protest organizer

“After police trapped us on the bridge, I observed a person on a bike be pushed off of his bike by police and then a number of police shoot him with pepper balls, rush him and tackle him. I also saw officers ‘bum rush’ ‘Bear’ Matthews, throwing him to the ground. At this time, I was toward the front of the group and on the north side of the bridge when officers randomly fired pepper balls toward me and other compliant protesters on the sidewalk.”
Jordan Corbin, plaintiff and Farnam protester

“As I was standing on the north sidewalk, wearing my backpack and taking notes with my legal pad and pen, an officer approached commanding me to ‘Get on the ground.’ Within a few seconds of his command, and just before the officer was within immediate reach, I politely said, ‘I am a legal observer.’ The officer immediately grabbed my shoulder and kick-swiped me to the ground.”
Riley Wilson, plaintiff and legal observer at Farnam protest

“As I was filming, an Omaha police officer violently shoved me to the ground, sending my phone flying. I stood up and continued filming the arrests happening in the street. The officer shoved me again. In response to our repeated statements that I was a credentialed journalist, an officer claimed they had ‘intel’ that our badges were ‘fake.’ I have no knowledge of any circumstance upon which that claim could be based.”
Melanie Buer, plaintiff and journalist at Farnam protest

“I did not hear any dispersal orders before police began using chemical agents and force to move us toward the intersection. I observed my friend, who is approximately 5’ tall and less than 100 pounds, ask an officer for help only to be shoved to the ground. She was later grazed by a tear-gas canister. I observed a woman standing still, with her hands up, when an officer told her to go back toward [the] group. When she remained in her position, the officer very aggressively grabbed her, cuffed her and took her away. As I observed another friend, asking an officer questions like ‘Why are you killing us?’ the officer looked her straight in her face and fired a tear-gas canister right at her. Two others were suffering badly from the stinging tear-gas causes to one’s eyes. Another friend was having a panic attack. At one point, I was standing in the street facing a skirmish line. When we all turned to run, I was struck in the leg with an object that exploded, presumably a flash-bang grenade.”
Isabella Tarr, Crossroads protester

Image of injury available for download[drive.google.com].

“Based on my observations of their demeanor, I concluded the police enjoyed what they were doing. I found this disgusting. They appeared to be intentionally brutalizing the young women for no reason other than their speech. I finally could not stand to watch it continue so I walked in between the row of officers and these young women and began to direct words toward the officers, objecting to what the officers were doing to these young women. Then the officers began to fire directly at me with pepper balls striking me several times on my legs, trunk, across my torso, shoulder, neck and head.”Mahmud Fitil, Crossroads protester

“I am afraid that Omaha Police will continue to disperse or arrest peaceful protesters at future peaceful protests in solidarity and support of the Justice for James Scurlock group and the Black Lives Matter movement.”
Josh Augustine, plaintiff and Farnam protester