The First Amendment protects the right to assemble and protest. But, as history has shown, this right is not absolute, and government officials, including police, can restrict the exercise of free speech as long as they use “reasonable force.” A recent ruling by the Ninth Circuit said that police used reasonable force when they dragged the limp body of a protester out of a public meeting, even though she was screaming in pain from the sprained wrist and torn rotator cuff injuries they had just inflicted.

Six demonstrators had attended a City Council meeting in National City, California, to protest the death of Earl McNeal, a black man who died in police custody. The medical examiner had ruled his death a homicide. The protesters staged a “die-in,” painted their hands red, chanted McNeal’s name and told the council members “You have blood on your hands.” They were told to leave but chose “passive resistance” instead. They fell to the ground as dead weight. A short time later, they were arrested.

One of them, Tasha Williamson, suffered wrist and shoulder injuries when police dragged her out. She sued the officers for violating her civil rights. At the District Court for the Southern District of California, defendants moved for summary judgment citing qualified immunity for the police. Plaintiff Williamson alleged that her Fourth Amendment and Bane Act rights were violated when police officers used excessive force to remove her from the city council meeting.

In June 2021, the District Court found that Williamson’s case “present pulling of [Williamson]’s arms and hands such that a reasonable jury could find excessive force…” She therefore defeated the defendants’ summary judgment motion for qualified immunity.

In a unanimous opinion by a three-judge panel, written by Circuit Judge Danielle J. Forrest, the Ninth Circuit reversed. They said the use of force by police was “appropriately minimal” and that their actions were justified in order to prevent a “shutdown of the government.”

Forrest wrote that the officers “did not strike Williamson, throw her on the ground, or use any compliance techniques for the purpose of inflicting pain on her.” The panel concluded that the police did not violate either Williamson’s Fourth Amendment rights or her claims under California’s Bane Act, a California civil law that forbids people from interfering with a person’s constitutional rights by force.

Judge Forrest’s opinion recounted Williamson’s arrest. She wrote that two officers handcuffed her and put her hands behind her back. As they lifted her from the floor where she was seated, they “lost their grip,” and she fell back on the ground on her stomach. They tried to lift her again by each placing an arm under a different shoulder.

She “screamed continually” throughout the 12 seconds she was “being pulled from the room.” When they got to the hallway, Williamson told the officers they had “hurt her shoulder.” They called an ambulance. When paramedics arrived, they offered to take her to a hospital, but she refused. The police then took her to a detention facility. After being released the next morning, she drove herself to the hospital and was diagnosed with a sprained wrist and a torn rotator cuff. In her suit, she claimed that excessive force was used to “pull the full weight of her body by her hyperextended arms.”

Forrest’s discussion began with a statement that affirmed the court’s authority to review summary judgment motions based on claims of qualified immunity. She also explained that the Fourth Amendment protects against “unreasonable searches and seizures,” noting that an arrest is the “quintessential seizure of the person.”

She framed the primary issue before the court to be “whether the officers’ actions were objectively reasonable in light of the facts and circumstances confronting them.” She explained that the court had to evaluate the severity of the intrusion, the government’s interest in the use of force and the “balance between the gravity of the intrusion on the individual and the government’s need for intrusion.” She cited a law that police officers “are not required to use the least intrusive degree of force possible.”

After comparing the facts in several cases that attorneys had cited as precedent, Forrest concluded, “Even viewing the evidence in Williamson’s favor, the type and amount of force used by the Officers in this case was minimal.” She listed all the things the officers did not do. They did not strike her, throw her on the ground or use weapons. They merely lifted her so they could remove her from the meeting room after she refused to leave. The judge wrote that the inherent risk of injury from the removal techniques the officers used was minimal. In addition, her injuries “though not trivial…are much less severe” than those suffered in other “reasonable force” cases.

Forrest wrote the District Court had erroneously focused exclusively on Williamson’s injuries when they should have also considered the amount of force used and the risk of harm from their tactics. She wrote, “The totality of circumstances…establish that the type and amount of force that the Officers used was minimal.”

The opinion next discussed the government interest in arresting Williamson. Forrest admitted that “Williamson’s crime was minor,” since it was only a misdemeanor offense to disrupt a public meeting. She also admitted that National City’s interest in forcibly removing Williamson from the city council meeting “was low, but it was not nonexistent.” She said the protest was “organized lawlessness” and that it caused others in the courtroom to yell and approach the podium. She said protesters “do not have a right to prevent duly installed government from performing its lawful functions.” Order must be restored, and there was a no less intrusive way to restore it.

Her final point was that Williamson could have avoided her injury by “cooperating” with the police and leaving the room under he own power. This decision, she said, gave the officers qualified immunity because they “did not violate Williamson’s Fourth Amendment rights by using excessive force.” For similar reasons, her Bane Act claim was reversed as well.