The ACLU of Nebraska has filed a lawsuit in federal court against the City of Omaha, alleging that its police department violated protesters constitutional rights by using excessive force, misapplying local laws and conducting retaliatory arrests and detainments.
“This is about accountability,” said ACLU of Nebraska Executive Director Danielle Conrad. “When the government infringes about individual civil rights and civil liberties, the courts must step in to check that power, to stop those abuses and to prevent future harm. We cannot accept that police will be allowed to police themselves.”
The lawsuit, announced Monday, was built on the testimonies of eight people, mostly from the organization ProBLAC, aims to recognize misconduct by the Omaha Police Department in its protest handlings as well as change policies to ensure protesters’ rights to demonstrate.
“Because of the conduct of Omaha police and the statements they’ve made since Farnam Street,” said ACLU of Nebraska Legal Director Adam Sipple, “our clients [are] in the unacceptable position of having to choose between their safety, and even their freedom, and the exercise of their constitutionally given right to free speech.”
The impetus for the lawsuit, which has been filed in United States District Court, came after protesters were arrested on the Farnam Street bridge over Highway 75 on July 25. Police shot pepper balls at protesters and tackled some to the ground. “Bear” Alexander Matthews, an organizer with ProBLAC arrested that night, said he was walking with a megaphone telling the police they were peaceful protesters as cruisers closed in on both sides of the bridge. Police kneed and kicked him until he was brought to the ground, Matthews said, at which point they pinned him to zip tie him.
“This is just a reminder,” Matthew said, “that we shouldn’t have to put our safety at risk when we’re protesting and when we’re expressing our first amendment rights…but protesting peacefully in the streets should not be met with pepper balls and tear gas and excessive force.”
More than 100 protesters were zip tied and transported to the Douglas County Detention Center July 25 where they were subjected to overcrowded cells or solitary confinement, many of them for more than 24 hours. Trans protesters were also put into cells and solitary confinement areas.
Following those arrests, the ACLU held a clinic at Culxr House to provide legal advice to protesters and begin collecting stories for what would become this lawsuit.
The basis for the lawsuit also pulls on clashes between police and protesters at the intersection of 72nd and Dodge streets at the end of May. There, police in riot gear used tear gas and pepper bullets on protesters. Sipple said the organization would file an injunction to end the use of those riot control devices.
OPD has alleged that protesters have been violent toward officers. Mayor Jean Stothert said police-worn body cameras will show not all Omaha’s protesters and demonstrations have been peaceful. A report covering thousands of hours of that footage, which Stothert said she will make public once she receives it, has not yet been released.
OPD have also arrested protesters for unlawful assembly. Earlier in the summer, hundreds were arrested for protesting past curfew. Many of those charges were later dropped. Conrad said that only further shows that police’s actions are not lawfully substantial.
On July 25, OPD cited ordinances saying people can not block traffic on a major roadway. ProBLAC, which organized the protest, did not have a permit to walk through the streets like one would get for a parade. But advocates said the law’s not applied uniformly.
In addition, advocates said nothing about OPD’s behavior since the mass arrests has assured them anything will change.
“Subsequent communications from the Omaha Police Department over the course of the summer and into this fall shows they still haven’t learned the lesson,” Conrad said. “Law enforcement’s role when people are engaged in peaceful free expression is to protect protester’s rights, is to facilitate free speech and address public safety concerns as they arise. It’s not to chill speech, it’s not to meet cries of justice with militarization and criminalization.”
Chief Todd Schmaderer, who’s named as a defendant in the case along with the city and OPD Captain Mark Matuza, changed the grounds on which people can be arrested en masse. However, Conrad said it only changes how evidence collected and doesn’t solve the problem.
Both protesters and legal advocates said OPD’s actions toward protesters had little to do with how the demonstrations occurred. Rather they allege the city made the arrests and harassed protesters because of why they were demonstrating.
Riley Wilson wore a bright yellow vest that clearly read “Legal observer” when he was arrested on the Farnam Street bridge’s sidewalk on July 25. While he was detained, Wilson, a law student and veteran, waited hours outside the jail in zip ties to be processed.
“Once inside, I heard a corrections officer agree with protesters about the inhumane treatment they’d received,” Wilson said. “Another corrections officer remarked, ‘What percentage of them do you think are going to do this after tonight? I bet zero.’”
Conrad said that’s exactly why this lawsuit is necessary. Everyone has a right to protest. In Omaha, people are being actively dissuaded to make their voices heard, Conrad said.
This is just one step in a multi-faceted strategy to address race relations and systemic inequity, Conrad said. Through evidentiary hearings, this lawsuit will allow the ACLU access to more information about OPD’s responses to protests and a look “behind the scenes,” as to what may have motivated their actions.
Conrad said while this lawsuit is a good step forward, it’d be better to have an oversight body who could check the police before they’ve done something to warrant a lawsuit. Omaha’s Citizen Complaint Review Board is tasked with overseeing the police, but sees very few cases and has little to no power to affect change within the department.
In the past, Stothert has stood behind Schmaderer’s handling of the department and protests in the city. In a story for The Reader, she said her idea of accountability would be to put more trust in the chief’s hands.
Most Omahans are happy with their police force and the job government is doing, she said then. Those who are still protesting are mostly riding a national wave of anarchist, anti-government, anti-police rhetoric.
Ja Keen Fox, an organizer at Culxr House, said the aim of calling out these injustices is not to be divisive. Recently Fox led an effort in the Nebraska Democratic Party to denounce Douglas County Attorney Don Kleine’s handling of the James Scurlock case as “perpetuating white supremacy.” Many lifelong Democrats and past party leadership have denounced that denouncement. That, and now his lawsuit, are not divisive.
“We were divided by racism and white supremacy to begin with,” Fox said. “So us calling that is an acknowledgement of reality and truth.”
Conrad said the ACLU has had a good relationship with OPD, which earns top marks in national accreditation and has made strides to diversify its force while reducing homicides in the city. But this lawsuit can show that the police can and should have a check on their power.
“What’s important to remember when we talk about oversight and accountability and additional checks on power, it’s about re-centering and returning power to the people,” Conrad said. “That’s the heart of democracy. Not appointed leaders. And it’s not enough to have police police themselves.”