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PCJF Files Lawsuit Against DC MPD: Demands No Council Vote on Newsham Without Records Release

PCJF sues D.C. for withholding documents related to Interim Chief Peter Newsham’s handling of January 20th protest

The Partnership for Civil Justice Fund announced today that it has filed a lawsuit against the D.C. Metropolitan Police Department to obtain the release of documents regarding interim Chief Peter Newsham’s controversial handling of the January 20th protests against the incoming Trump Administration.

The D.C. Metropolitan Police Department and Interim Chief Newsham are standing in willful disobedience of their lawful obligations to disclose information under the D.C. FOIA and under the First Amendment Rights and Police Standards Act (FARPSA), including defiantly stating a refusal to disclose information where such information is mandated by law that it “shall be made available to the public on request.”

The Council of the District of Columbia enacted the FARPSA, which took effect in 2005 after lengthy investigation and hearings into significant police misconduct, including that of then-assistant-chief Peter Newsham and his illegal mass arrest of 400 persons in Pershing Park. Now in his first handling of a demonstration as Interim Chief, it appears that Newsham has acted in violation of his obligations under that law.

“This information is being improperly and illegally withheld at the very moment when its release would inform the public and the D.C. Council in their evaluation of Peter Newsham’s nomination to be Chief of Police,” stated Mara Verheyden-Hilliard, Executive Director of the Partnership for Civil Justice Fund. “We call on the D.C. Council to refuse to hold a vote on the nomination until these records are released and until there is a full investigation into police actions on January 20th. The public and the D.C. Council are entitled to have transparency and disclosure as to Peter Newsham’s fitness to hold office.”

As the Washington Post Editorial Board wrote on January 25, 2017, addressing the police handling of the January 20, 2017, demonstrations: “It is important that the information collected be shared with the public and that there is an independent review by the D.C. Council.”

The lawsuit states:

“At this pivotal moment in American life, when demonstrators are coming to the nation’s capital to engage in cherished free speech activities in opposition to policies and programs of the Trump Administration and in defense of targeted communities, the importance of the District’s police chief’s conformity to constitutional and other legal obligations in the handling of free speech actions is at its apex.

“Yet, having effectuated the first major mass arrest and mass use of chemical and other weapons since the D.C. Council’s enactment of the First Amendment Rights and Police Standards Act (FARPSA), and thus triggering its record keeping obligations and public disclosure requirements, Interim Chief Peter Newsham and the MPD are refusing to make public those responsive records.”

The lawsuit, Partnership for Civil Justice Fund v. District of Columbia, filed in D.C. Superior Court, can be read here.

Background on the documents being withheld:

The FARPSA mandates not only specific restrictions on improper and unconstitutional police conduct in the context of free speech activity, but certain record keeping obligations to ensure police accountability. Delineated requirements of proper police conduct under the FARPSA are explicitly applicable in situations where there are also acts of property damage or allegations of criminal acts being carried out by some persons in proximity to First Amendment activity.

These laws and requirements were put in place to ensure that the police properly distinguish between those for whom there is probable cause to arrest for criminal activity and others who are in proximity to such actions in conjunction with protected expressive activity, to ensure that the police do not engage in mass dragnet arrests devoid of particularized probable cause and without fair warning or notice.

They are also intended to ensure that the police do not engage in mass indiscriminate use of force, including specifically misuse of large-scale canisters of chemical irritants.

The January 20, 2017, mass dragnet arrest conducted by the MPD under the leadership of Peter Newsham swept up persons who had engaged in no illegal conduct, including journalists, for whom there was no probable cause to arrest.

On January 20, 2017, the MPD, under the leadership of Peter Newsham, deployed mass indiscriminate use of chemical irritants and other weapons against large groups of people.

The FARPSA and other obligations under which the MPD operates require: written reports by scene commanders within 48 hours following deployment of officers in riot gear, and further that such reports shall be made available to the public upon request; written reports by the scene commander to the Chief of Police regarding determinations to use large-scale canisters of chemical irritants within 48 hours after the event; written documentation of arrest warnings given; documentation of orders to disperse and the methods used to effectively communicate such orders; use of force reporting; and other information.

These documents were requested two months ago, immediately following the events of January 20th. However the MPD has failed and refused to release this information.

Evaluating Peter Newsham’s conformity to the law in his handling of the January 20, 2017, demonstrations is of crucial importance in determining his fitness to be the permanent chief of the D.C. MPD. There are widespread concerns regarding what appear to be facial violations of the FARPSA under his command and the disclosure of these public records are a matter of urgency.