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Activists seek to organize class action lawsuit against law enforcement response to march in 2020

Two racial justice activists are trying to bring a federal class action lawsuit against numerous local law enforcement officials over their allegedly heavy-handed response to a voting rights march that took place in Graham three years ago.

Kani Adon Bermudez-Bey and Regis Kishon Green filed this prospective class action last week in federal court in order to rectify the injustices that they and dozens of others allegedly suffered in the wake of “I am Change March to the Polls” on October 31, 2020.

Kani Adon Bermudez-Bey (in angel costume) and Regis Kishon Green (with bull horn) during the October 31, 2020 march in Graham.

This particular suit, which was prepared by Erika K. Wilson, a law professor at UNC-Chapel and a specialist in “critical race lawyering,” is merely the latest in a string of court actions prompted by that ill-fated event, which had been timed to coincide with the last day of early voting in that year’s general election. Although most of the march went off without a hitch, the situation spiraled out of control ahead of a subsequent rally on the grounds of Alamance County’s Historic Court House, as the conflicting expectations of law enforcement and demonstrators ended in a fog of pepper spray and nearly two dozen arrests.

In their own entry into the legal imbroglio, Green and Bermudez-Bey place the blame for the chaos that afternoon squarely on the law enforcement officials who helped manage that day’s events. In their proposed class action, the duo specifically take issue with the actions of Graham’s police chief Kristy Cole, Alamance County’s sheriff Terry Johnson, and more than two dozen of their respective subordinates. The plaintiffs also allude to another 30 unidentified police officers, sheriff’s deputies, and jailers who were reportedly involved in the law enforcement response to the march.

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The plaintiffs assert that these 68 defendants, both named and unnamed, heaped a whole host of outrages on the roughly 250 people who they estimate took part in the march. The pair add that some of the event’s participants have gone on to file their own lawsuits, which have resulted in financial settlements from the legal liability insurers representing Alamance County and the city of Graham. The plaintiffs nevertheless add that this compensation has, so far, eluded the majority of those who “continue to face physical and emotional pain from the march.”

“[The plaintiffs] now bring this class action lawsuit,” the duo assert in their legal complaint, “to vindicate their rights, and the rights of the remaining march attendees, who were brutalized, terrorized, denied their Constitutional rights by [the] defendants.”

Although Green and Bermudez-Bey were the only two plaintiffs when this proposed class action was filed, their legal complaint claims that they represent a much larger class of potential victims, which comprises all of the march’s “approximately two-hundred and fifty” participants, “excluding counter protestors.” The pair goes on to assert that these individuals can all claim some degree of injury from the crowd control measures that police officers and sheriff’s deputies used to disperse the marchers when they reached the county’s historic courthouse. The plaintiffs assert that the defendants employed these measures, which included the use of pepper spray, against a crowed that contained “vulnerable children and [the] elderly” – and which had “gathered peacefully…and did not pose a threat to GPD officers, ACSO deputies, or to others around them.”

The plaintiffs recalled that this purported injustice occurred in the midst of a nationwide call for racial justice and police reform that followed the death of George Floyd at the hands of Minneapolis police in the spring of 2020.  They added that, as a special tribute to Floyd, the organizers of the march to the polls held an extended moment of silence when they arrived at the courthouse.

Many of the demonstrators had kneeled with their heads bowed during this tribute, whose 8-minute-and-46-second duration corresponded to one estimate of the time that the police officer later convicted of Floyd’s murder had knelt on the neck of the deceased. In the text of their complaint, the plaintiffs assert that the demonstrators were forced to confront a rather alarming reality after this solemn remembrance.

 

Part of the October 31, 2020 protest in downtown Graham included marchers kneeling for 8 minutes and 46 seconds, representing the amount of time a Minneapolis police officer had his foot on George Floyd’s neck before he died earlier that year in police custody.
       While plans called for the protesters to move out of the roadway onto courthouse grounds for a subsequent rally, many initially stayed in the road and did not respond to police directives to move out of Main Street and the traffic circle around the Historic Court House, resulting in the first use of pepper spray, by the Graham police.

“Less than ninety seconds after the march attendees rose from their peaceful moment of silence,” the text of the lawsuit contends, “GPD officers and ACSO deputies armed with riot gear indiscriminately deployed pepper spray…to disperse the crowd.”

The legal complaint ultimately provides an extensive account of Green and Bermudez-Bey’s recollections of the ensuing malaise. According to their recollections, which include details that conflict with other first-hand accounts of the event, various police officers and sheriffs deputies approached the crowd “armed with pepper spray” after the tribute to Floyd.

“It appeared as if they were attempting to disperse the crowd,” the pair’s legal complaint recalls, “but it was loud, and any verbal instructions being given by the defendant[s]…were difficult for the entire crowd to hear.

“[The defendants] began to directly pepper spray [the] march attendees, including women, children, elderly, and disabled participants,” the complaint adds. “Mr. Bermudez-Bey and Mr. Green were directly hit by the pepper spray…Mr. Bermudez-Bey immediately felt his eyes, nostrils, and throat begin to burn. His vision blurred and his eyes watered…Mr. Green was confused and disoriented by the first spray…Mr. Bermudez-Bey and Mr. Green witnessed several march attendees who had severe reactions to the pepper spray…[They] felt immense anxiety in reaction to the chaos that ensured around them as they watched members of the community struggle to breath and see. Many march attendees were screaming in pain, while others were lying in the middle of the road.”

The plaintiffs’ recollections of these crowd control measures are at odds with law enforcement reports as well as other eye-witness accounts. These contrary statements attribute the initial use of pepper spay only to members of Graham’s municipal police force, which has acknowledged releasing the spray to clear the streets when marchers were allegedly slow to assemble on the steps of the courthouse ahead of the permitted rally.

Meanwhile, the sheriff’s office confirmed that it subsequently deployed pepper spray to disperse the crowd after it decided to call off the rally entirely. The sheriff’s office based this decision on the presence of a gas-powered generator that the march’s organizers were explicitly instructed not to bring under the terms of their permit for the event.

The gas-powered generator that was discovered by the sheriff’s office during the rally. They were led to the generator when they observed two gas cans on site.
A second photo of a gas can on the courthouse grounds.

The plaintiffs argue that the effects of the pepper spray were compounded by the harrowing realization that they were surrounded by heavily armed police officers and sheriff’s deputies, who allegedly included “snipers” on the roofs of neighboring buildings.

This image purportedly clashed with the prior assurances of law enforcement officials that the march’s participants “would be safe,” prompting some “to bring their children and families” to the event. The effect was further compounded by the supposed lack of police action against counter-protestors (although counter-protestors were among those who were arrested as the scene devolved into chaos).

The legal complaint goes on to describe two subsequent barrages of pepper spray, which triggered a general tumult and the arrests of nearly two dozen people for their supposed failure to obey orders to disperse.

In the text of the legal complaint, the attorney representing Bermudez-Bey and Green proceeds to lay out a number of legal objections to these apparently over-the-top actions by law enforcement. She argues, among other things, that the use of pepper spray in this case amounted to the use of “unreasonable and excessive force” that “created a chilling effect on future political participation in the community.” The plaintiffs’ attorney also offers internal police communications and other documentary evidence to suggest that law enforcement officials engaged in “conspiracy to deprive [the] plaintiffs of [their] civil rights” while “stifling protests against the racial injustice epitomized by the Confederate monument] that stands at the northern approach to the courthouse.

“[The] defendants’ conduct would likely deter and chill a person of ordinary firmness from participating in future marches for fear of being subject to comparable force,” the plaintiffs’ attorney continues. “In fact, [the] defendants’ conduct has deterred Mr. Bermudez-Bey, Mr. Green, and putative march attendees from attending further marches and protests.”

The attorney’s claims that the law enforcement response had a chilling effect on the plaintiffs is seemingly undercut by Green’s arrest less than a month later when he allegedly touched off an uproar at the end of a county commissioners meeting.

Chief deputy Cliff Parker on November 16, 2020 at the county commissioners’ meeting in the upstairs courtroom of the Historic Court House giving instructions to three protesters: (left to right) Avery Markel Harvey, Kani Adon Bynum (who is now listed in court filings as Kani Adon Bermudez-Bey, and Regis Kishon Green; Green was subsequently arrested.

Other assertions in the legal complaint are less easy to dismiss out of hand. These include the apparent infliction of trauma has reportedly had lingering effects on both Green and Bermudez-Bey.

“[The] defendants’ deployment of pepper spray,” the text of the lawsuit contends, “caused severe emotional distress to Mr. Bermudez-Bey and Mr. Green, as it led them to develop severe depression and anxiety that was observed and treated by mental health professionals.”

In recompense for these alleged injuries, the plaintiffs’ attorney urges the federal courts to award her clients an unspecified amount of financial compensation. She also asks the courts for formal declarations that the use of pepper spray against the march’s participants “was retaliatory” in nature, “amounted to an excessive use of force,” and deprived these individuals “of their civil rights.” The plaintiffs’ attorney also requests that Graham’s police department and the sheriff’s office be forbidden to use pepper spray against demonstrators in the future, and she seeks a jury trial in order to lay out her case for the requested relief.

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