Detroit City Council approves more money to fight Detroit Will Breathe lawsuit | Michigan Radio
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Detroit City Council approves more money to fight Detroit Will Breathe lawsuit

Jan 26, 2021

The Detroit City Council on Tuesday narrowly approved a controversial contract increase for a law firm helping the city counter-sue anti-police brutality protesters.

By a 5-4 vote, the council voted in favor of a $200,000 bump for law firm Clark Hill. That increase was requested by Mayor Mike Duggan’s administration and the city’s top lawyer, Lawrence Garcia.

Detroit police responded with force to some protests during the summer of 2020.
Credit Lester Graham

The group Detroit Will Breathe sued the city first in federal court, saying that Detroit police officers used brutal measures including rubber bullets, batons, and mace to remove protesters from downtown city streets last summer.

The city responded by filing a counter-lawsuit that alleged protesters were part of a “civil conspiracy,” and should be held collectively liable for alleged acts of violence and vandalism committed by a few individuals.

The council vote came after members heard blistering public comment from a number of Detroiters asking them to vote the amended contract down. Protesters and their legal advocates say the premise of the city’s counter-suit violates their First Amendment rights, and will have a chilling effect on protest as a form of free speech.

“They’re arguing that it’s a civil conspiracy, for which basically all of the protesters can be held collectively liable just because a few people may have engaged in excessive conduct,” said Phil Mayor, a senior attorney with the ACLU of Michigan. “Their theory is because you helped organize and take part in a protest in which some isolated incidents of violence occurred, somebody who did not perpetrate that violence can be held liable.”

Mayor, who wrote a letter asking council members to vote the contract increase down, said the counter-suit’s aim is to “silence protesters” by making them financially liable for alleged crimes.

Council member Raquel Casteñeda-Lopez agreed.

“I believe the [counter-suit] is an unprecedented and outrageous attempt by the law department to silence protesters through an expensive counterclaim, attempting to hold protesters liable for civil conspiracy,” said Casteñeda-Lopez, who voted against the contract increase.

“I also do not support the dangerous policy that this legal strategy is setting and the precedent that it's setting. It effectively kills free speech. And it really is a retaliation against people who are out protesting for racial justice and social equity.”

Tristan Taylor, a co-founder of Detroit Will Breathe, said the city council “should not be part of an effort to silence” protesters.

“It has been made clear through statements of corporation counsel that this is, in fact, a political move that has nothing to do with bringing protesters to justice, and everything to do with trying to stop our ability to bring accountability and transparency to the police department in the city of Detroit,” Taylor told council members during public comment.

Lawrence Garcia, Detroit’s corporation counsel, didn’t directly address these criticisms. Instead, he said increasing Clark Hill’s contract will “allow the flow of resources” to bolster the city’s defense in federal court.

“My office has to defend this city in the federal court case that involves Detroit Will Breathe,” Garcia said. “And that is going to be an expense that requires funding no matter where we stand with respect to counterclaims.”

Garcia had previously told The Detroit Free Press that the city “will voluntarily dismiss the counterclaim if the Plaintiffs dismiss their charges against Detroit.”

So far, the city has not fared well in court against Detroit Will Breathe. Earlier this month, a judge dismissed charges against 28 defendants, citing the city’s inability to provide evidence, such as police body cam footage, to support the charges.

And as council was meeting Tuesday to vote on the Clark Hill contract, the city sent out a statement announcing that it would dismiss “the vast majority of citations” issued to protesters during initial protests at the start of last summer.

“In the many months since those tickets were issued, the City Law Department and Police Department have worked to study videotape and other evidence from the events in question,” the statement read in part. “In light of that review, the Law Department is dismissing the majority of misdemeanor tickets issued on May 31 and June 2. Although certain cases from these two dates will be pursued, the City believes it is best to dismiss the vast majority of citations.”

A spokesman for Mayor Mike Duggan did not respond to Michigan Radio’s inquiry about the “certain cases” the city could continue to pursue.

Besides Casteñeda-Lopez, council members Mary Sheffield, James Tate, and Gabe Leland voted against raising the Clark Hill contract. Members Roy McCalister, Janee Ayers, Scott Benson, Andre Spivey, and Council President Brenda Jones voted to approve it.