A panel of the Ninth Circuit Court of Appeals reversed a ruling by an Obama-appointed judge which found that the Phoenix Police Department (PPD) used “excessive force” dealing with violent protesters outside of a Donald Trump rally in 2017. The court’s opinion, issued last Thursday, found that U.S. District Court Judge John J. Tuchi incorrectly applied Fourth Amendment law to analyze claims from three protesters who were hit with projectiles.
Trump held a rally at the Phoenix Convention Center on August 22, 2017. A “Free Speech Zone” was set up for protesters, but the PPD was forced to intervene when they became violent. The opinion said the police used “tear gas, other chemical irritants, and flash-bang grenades” to deter the rioters.
After the protest, the radical leftist groups Poder in Action and Puente, which participated in the protest, along with several protesters, sued the City of Phoenix, accusing the police of excessive force in violation of the Fourth Amendment and the Fourteenth Amendment’s Due Process Clause, using violence to deprive the protesters of their free speech under the First Amendment, and viewpoint-discriminating against the protesters in violation of the Fourteenth Amendment’s Equal Protection Clause. They were represented by several prominent national law firms and the ACLU of Arizona.
Tuchi (pictured above) dismissed all of their claims except the Fourth Amendment excessive force charge by the three protesters hit by projectiles.
The appeals court disagreed with him, reasoning, “There was no ‘seizure’ of the class members within the meaning of the Fourth Amendment because the record showed that defendants’ use of airborne and auditory irritants was not objectively aimed at restraining the class members, even temporarily.” The panel found that “the officers were entitled to qualified immunity because they acted reasonably under the circumstances or did not violate clearly established law.”
The panel noted that the police officers assigned to the protest had significant previous experience dealing with protesters. The justices said the violence began when protesters began throwing water bottles at police and attendees waiting in line.
The panel said the police first responded by using a loudspeaker to tell the protesters not to engage in violence. However, they observed “Antifa members … acting aggressively and shouting profanities,” and “observed suspected Antifa members shove a protester who had told them to stop throwing objects.” When the police attempted to speak to them, the rioters ignored them.
When Trump’s motorcade left the rally, rioters were seen throwing water bottles down from a parking garage at the crowds in the streets. Officers observed suspected Antifa members “hooking their flags and banners to the fencing,” which they believed was in order to breach the fence to access a prohibited area designated for the police. When the rioters began pushing on the fence, the officers fired pepper balls at them.
The police paused to see if the violence would subside, but it did not, “the activity instead escalated, with individuals in the Free Speech Zone throwing rocks, water bottles, and other objects at an increasing rate.” As the motorcade left, “an individual in the Free Speech Zone threw a canister into the Public Safety Zone that began emitting an unknown gas.”
The opinion said the officers responded by putting on tear gas masks and deploying smoke canisters. However, it was ineffective, since “many in the crowd continued to throw objects back at police; indeed, ‘the frequency of items being thrown at officers significantly increased,’” including launching a “pyrotechnical munition.”
The police used tear gas and flash-bang grenades to respond, the opinion said. They entered the Free Speech Zone and “begin clearing the remaining individuals in the area using ‘targeted munitions like pepper balls when necessary to drive back any threatening or aggressive individuals.’” Using a public address system, the police announced that the protest was unlawful. The police arrested five people, who did not become plaintiffs in the lawsuit.
Police Chief Jeri Williams declared afterwards that the PPD’s conduct was “textbook perfect.”
The panel stated that plaintiff Ira Yedlin was one of the protesters who shook the fence. After the police fired pepper balls at the protesters shaking the fence, Yedlin backed off but then resumed, which is when he was struck. The court said, “By returning and vigorously shaking the fence just seconds after the PPD had repelled an apparent attempt to breach it, Yedlin posed an immediate threat to the PPD’s ability to maintain this boundary.”
Next, the court said that plaintiff Janet Travis refused to leave after police told the protesters to disperse. “The video evidence demonstrates that Travis moved toward the skirmish line even after officers had begun deploying chemical spray at the crowd in her immediate vicinity.” She was then “targeted with a “muzzle blast” — a burst of chemical powder with irritating properties — as well as pepper spray and an unknown projectile.”
The panel found, “Travis was struck after she remained in the area in clear disregard of the repeated announcement that an unlawful assembly had been declared and after multiple orders to disperse had been issued. Moreover, Travis chose to place herself directly in front of the advancing skirmish line, and in doing so, she placed herself between the officers and near the remaining crowd behind her, which was continually throwing objects at the officers.”
Finally, the panel addressed the situation involving protester Cynthia Guillen. The justices said although Guillen didn’t appear to engage in any “obviously unlawful or threatening conduct,” nor engaged in behavior that “presented a risk to public safety,” “the officers were reasonably concerned about the possibility of troublemakers ‘circulat[ing] anonymously within the larger crowd of protesters’” and it had been made clear the police wanted the protesters to disperse.
The court concluded, “We therefore affirm the district court’s dismissal of Plaintiffs’ claims against Defendant City of Phoenix.”
Tuchi has a history of politicized rulings favoring Democrats. He threw out Kari Lake’s and Mark Finchem’s lawsuit challenging the use of voting machine tabulators in elections, and awarded sanctions of $122,200 against their attorneys. In similar election-related cases, judges have declined to award sanctions against those bringing the lawsuits. After his ruling came out, the Arizona Supreme Court issued an opinion declaring that attorneys should not be disciplined for bringing election lawsuits.
Last year, the Ninth Circuit Court of Appeals reversed a decision by Tuchi that refused to allow The Gateway Pundit’s reporter Jordan Conradson access to Maricopa County Elections’ press conferences, but allowed other journalists access.
In 2022, Tuchi struck down a new Arizona law championed by Republicans that made it a crime to record law enforcement activity within eight feet after receiving a warning from an officer. Attorney General Kris Mayes agreed to pay Arizona news outlets, including The Arizona Republic, $46,000 and the ACLU $23,000 for attorney fees and costs.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Image “Judge John J. Tuchi” by Los Abogados Hispanic Bar Association.
