Omaha police will use pepper balls or spray only on those whom they have probable cause to think are committing crimes at protests, and will loudly and clearly announce any imminent deployment of any chemical agent, according to a settlement reached Thursday with protesters and the ACLU of Nebraska.
The city also will inventory, in a report issued annually, all use of chemical agents, whether the use was appropriate and whether anyone was injured.
As part of the settlement, the city will dismiss misdemeanor cases against 25 protesters. And it will ask the City Council to revise a city ordinance barring the blocking of public roadways to allow protesters reasonable notice and time to disperse.
In return for those policy changes, several protesters and members of ProBLAC (Progressive Black-Led Ally Coalition) will dismiss the federal lawsuit they filed alleging the city violated their rights.
The settlement is expected to be approved by a federal judge.
“I am pleased we were able to reach an agreement and set a positive tone for the start of 2021,” Omaha Police Chief Todd Schmaderer said in a statement. “When common ground can be reached, everyone benefits.”
Said Adam Sipple, ACLU Nebraska legal director: “From the start, our plaintiffs’ goals were to defend their rights and protect future protests. This agreement achieves meaningful progress on both fronts.”
Much of the lawsuit stemmed from the July 25 arrests of 125 protesters on the Farnam Street bridge near downtown Omaha. That day, in support of protests in Portland, protesters joined ProBLAC organizers in marching from Turner Park to downtown and back. The protesters, who didn’t have a permit to gather, walked downtown sidewalks and streets and were almost back to Turner Park when Omaha police stopped them on the bridge.
Police officers ordered them to stop, deployed pepper spray and corralled the 125. Most of them spent at least 12 hours at the Douglas County Jail, which was overwhelmed by the sheer size of the group and by a computer malfunction in the jail’s booking system. In the end, City Prosecutor Matt Kuhse ticketed 25 of the 125 on suspicion of obstructing a public roadway.
Then, in late November, Douglas County Judge Marcena Hendrix ruled that the obstruction ordinance the city used was an unconstitutional affront to the First Amendment, which protects speech and demonstrations. Hendrix ruled that it was remarkably similar to a St. Louis ordinance that was struck down by a federal judge in 2019.
Now, the settlement would call for a subsection to be added to the ordinance outlawing the obstruction of public roadways. The City Council would have to approve that change, which reads in part: “If conduct that would otherwise violate this section consists of speech, or gathering with others to hear or observe such speech ... the actor must be informed that they are obstructing traffic and ordered to move or to disperse, and be given reasonable time to comply ... prior to being subject to arrest.” A second ordinance penalizing those who fail to obey a lawful order would be adjusted to ensure that the order was reasonable and the person was given time to obey.
The other portions of the settlement focused on Omaha police conduct on the bridge and during local protests in late May of George Floyd’s killing at the hands of Minneapolis police.
In their federal lawsuit, protesters had alleged that Omaha police pounced without warning and used excessive force, including overuse of pepper spray and chemical agents. The lawsuit focused in part on the lasting impact that pepper spray can have, both on free speech and on citizens’ health.
The city denied the excessive-force allegations, but agreed in the settlement to a few changes:
The city has “and will continue to adopt policies to ensure that all OPD personnel are properly trained regarding the First Amendment rights of all persons, and that all current uniform patrol officers will be provided specific training regarding the new ordinances.”
The city agreed to prohibit officers from using “chemical agents, whatever the method of deployment, against any person engaged in expressive nonviolent activity in the city of Omaha,” with limited exceptions.
Those exceptions state that chemical agents will be “targeted to impact a specific individual for whom there exists probable cause to arrest the person targeted” and the officers will issue “clear and unambiguous warnings that ... such chemical agents will be used.”
The city agreed to issue an annual report about chemical agents that includes: number of deployments, type of chemical agent used, description of the law-enforcement purpose of the use of the chemical agent, whether the deployment was within policy standards, whether there were any complaints or any injuries associated with the use and whether any discipline was issued to any officers.
Bear Alexander, an activist and Pro-BLAC leader, said the massive amount of arrests that took place on the bridge should never happen in a nation that values free speech.
He said the settlement exceeded his expectations of what protesters would be able to attain through the lawsuit. If the city doesn’t uphold any of its requirements, protesters can take the city to court to enforce the agreement.
“This undeniably helps protesters,” Alexander said. “But we still have to recognize that these are small concessions and crumbs in our fight.”