Update: March 10, 2021:

Today the Eastern District of Michigan recognized that the City of Detroit’s counterclaim against activists Detroit Will Breathe was frivolous and baseless, and dismissed it with prejudice.

Plaintiffs Detroit Will Breathe and 14 individual plaintiffs brought a civil rights lawsuit against the City of Detroit and the Detroit Police to challenge the response to protest activity from this past summer. Early in the case DWB won an early victory when the court entered a temporary restraining order prohibiting the Detroit Police from using certain tactics against protestors. In response, the City of Detroit filed a counterclaim against all of the plaintiffs alleging a single claim of civil conspiracy. The City argued that plaintiffs conspired together to commit unnamed and unspecified “illegal acts.”

The Protect the Protest Task Force and CLDC filed an amicus brief in support of DWB; the tactic of filing a frivolous counterclaim is a new and worrying frontier in SLAPP litigation. Essentially, after having failed to silence DWB through systemic and systematic violence, and in response to an early victory by DWB in which the court recognized that the City and the Detroit Police had been using dangerous and illegal tactics to silence protestors, the City of Detroit is attempted to weaponize the courts to silence them by filing a frivolous civil conspiracy counterclaim. This marked the first time that a conspiracy claim has been used as a defense and a harassment tactic by a city. Conspiracy SLAPPs have been used to target and harass activists in the hopes of silencing their speech, their further advocacy and protest activity but the use of conspiracy SLAPPs expanding to include lawsuits is a new and worrying development.

Happily, the Eastern District of Michigan recognized the frivolousness of the City’s counterclaim and dismissed it. The Court chastised the City, noting that “in light of their acknowledgments that the conspiracy claim is not based on any speech torts and that they would need discovery to be able to allege sufficient facts concerning all of the alleged co-conspirators, amendment does not seem viable.” In other words, because the City’s counterclaim was entirely baseless, it is not simply a matter of revising their claim – no revision would make their civil conspiracy claim viable.

The summer of 2020 brought the largest and most sustained uprising this country has ever seen. In cities from coast to coast, galvanized by George Floyd’s murder by Minneapolis police officers, people organized, acted, and spoke out against the pervasive threat of police brutality and systemic racism. Invariably, they faced unprecedented and reprehensible violence at the hands of the state attempting to silence them. Now, in the wake of these uprisings, there are more civil rights lawsuits being filed attempting to hold cities and police departments liable for their violence. In one such case in Detroit, Michigan the city has adopted a novel and dangerous defense in service of abusive cops: the city’s lawyers have gone on the offense, concocting an attempt to bring a retaliatory counter-charge of civil conspiracy against the protestors (aka victims) who have sued the public servants (aka abusive cops) for violations of their constitutional rights. Such a so-called “defense” to a civil rights case is an unprecedented tactic to try to scare and deter activists from suing cops for police misconduct and exposing widespread and systemic racism.

The background of the case is as simple and familiar as it is horrifying. Detroit Will Breathe began participating in and organizing demonstrations against racism and police brutality in Detroit after the May murder of George Floyd in Minneapolis sparked national outrage. In scenes that were repeated across the country—in Seattle, Portland, Los Angeles, New York, Providence, and Boston, among others—the Detroit police responded to such calls for change with excessive and unlawful violence. Over the next several months, the Detroit police tear-gassed, pepper-sprayed, and beat their own citizens who were calling for an end to police brutality. They shot them with rubber bullets, causing nerve damage, targeted them with sound cannons, causing hearing loss, and rammed into human bodies with their cop vehicles. And, of course, Detroit police arrested hundreds of protesters without probable cause.

In August, DWB along with several individuals filed a complaint in the Eastern District of Michigan, as well as a motion seeking a temporary restraining order and preliminary injunction; the complaint asserted violations of the First, Fourth, Fifth, and Fourteenth Amendments and the restraining order sought to prevent the city from deploying violent tactics against demonstrators while the lawsuit was pending. Four days after filing the complaint, the federal court granted the restraining order after finding that DWB had demonstrated a likelihood of success on the merits of their constitutional claims, and had already suffered irreparable harm. In response, the city attempted to use the court to silence and chill DWB, filing a motion to modify the restraining order that sought to have the court, instead of prohibiting the city’s police force from engaging in unconstitutional and violent conduct, prevent DWB from engaging in protests. The court found that the city had presented no viable legal or factual basis for their claim, and denied the motion. Undeterred by this loss, the city has forged ahead with its dubious and dangerous legal strategy of attempting to use the court to silence DWB by framing protected speech and protest activity as somehow unlawful and/or violent in and of itself. In late September, the City of Detroit and all defendants filed their answer to DWB’s complaint. Rather than simply denying all claims (which is standard civil practice) the defendants filed a counterclaim against DWB alleging a single count of “civil conspiracy.”

In the face of the deplorable physical violence being perpetuated by the city of Detroit and the police force, such a legal tactic is as worrisome as it is offensive. After having failed to silence DWB through systemic and systematic violence, the City of Detroit is now attempting to weaponize the courts to silence them. As DWB put it in their motion to dismiss the counterclaim: “deprived by Order of this Court of their ability to silence Plaintiffs and others through the use of brute force and mass arrests, Defendants seek to chill Plaintiffs’ speech through a frivolous Counterclaim.”

Whereas corporations have long used frivolous conspiracy claims to attempt to silence dissent, this is the first time that a conspiracy claim has been used as a defense and a harassment tactic by a city and why it was important for CLDC and the Protect the Protest Task Force to file an amicus brief in support of DWB and against this abusive act of state repression.

In recent years there has been a discernible growth in so-called Strategic Lawsuits Against Public Participation (SLAPPs)—civil lawsuits that are designed to manipulate the courts, and use the litigation process to shut down critical and protected speech by intimidating, harassing, and draining the resources of those targeted. SLAPPs are frequently used to target protected speech; specifically, corporations have used the Racketeer Influenced and Corrupt Organizations Act (RICO) as a way to file SLAPP conspiracy claims against advocacy groups; most frequently the claims are used to target and harass environmental advocacy groups.[1] Particularly through abusive discovery tactics involving non-party subpoenas and depositions. These RICO-based conspiracy claims attempt to stretch the concept of a “criminal association” to apply to environment advocacy organizations, and allow corporations to sweep in a broad range of associated groups and individuals as “co-conspirators.” Such lawsuits rarely succeed, but of course that is not the point. The point of SLAPPs is to harass, punish, and retaliate against those using protected speech to criticize the more-powerful and to deter or scare people from engaging in similar protected conduct in the future.  Lawsuits are lengthy and expensive, and by the time a SLAPP has been revealed as frivolous, advocacy groups will have spent huge amounts of time and money defending themselves from these baseless claims.

While the use of conspiracy-based SLAPPs is something we have come to expect from malicious unethical corporate bad-actors like Chevron, and pipeline and logging companies, it is not a tactic we have yet seen the police deploy using taxpayer money. Moreover, conspiracy SLAPPs have been used to target and harass activists in the hopes of silencing their speech, their further advocacy and protest activity; we have not yet seen civil conspiracy claims as a tactic to silence lawsuits.

However, given the deep ties between the extractive industries and the police, it is perhaps no surprise that the tactic has migrated from corporate harassers like Chevron to municipal harassers like police. Many of the same companies that are driving our climate crisis are also donors, partners, and board members for police foundations and associations, the shady organizations that fund police forces (and avoid public scrutiny or oversight) in nearly every major city.[2] These foundations have varying names, but are united by their common purpose: to funnel money from wealthy individuals and corporations to the police, without any oversight. The two most notorious conspiracy SLAPP-ers, Chevron and Energy Transfer Partners (Dakota Access Pipeline) are both deeply involved in police foundations. Energy Transfer Partners is a sponsor of “Friends of the Dallas Police” and Chevron has a spot on the Houston Police Foundation board.[3] Specific to Detroit, two major local fossil fuel companies are involved in the Detroit police foundation, known (comically) as the Detroit Public Safety Foundation: DTE Energy is a donor and a trustee and Marathon Petroleum, owner of a major refinery in Detroit, is also on the board and is a donor.[4]

On December 11, 2020 the Bopp Law Firm sought leave to file an amicus brief in the Detroit police misconduct case on behalf of their client, the National Police Association. Not only is the National Police Association a particularly prolific and particularly secretive and opaque so-called “non-profit” funneling support and money to police departments across the country, but the Bopp Law Firm is a well-known player in the frivolous lawsuit arena – indeed, Jim Bopp, the founder, has arguably made a career on such lawsuits; he was a major force behind the Citizens United case that dramatically loosened campaign finance restrictions and he provided the legal rationale that the U.S. Supreme Court used in siding with President George W. Bush during the Florida recount in 2000.[5] Most recently, Bopp filed perhaps the most frivolous of all the frivolous Trump election challenging lawsuits (which is really saying something). Bopp filed four lawsuits challenging the polling practices of 18 counties across Pennsylvania, Michigan, Georgia, and Wisconsin based on dubious claims of fraud (all of which have been shown to be either baseless or utterly fabricated).[6] Bopp’s election lawsuits were allegedly and statedly separate from Trump’s own election challenging suits, and in fact, they were even more problematic; Bopp’s lawsuits each requested that the only suitable relief would be the invalidation of not just votes found to be fraudulent, but all votes cast.[7] The claims were so egregiously baseless that Bopp quietly but abruptly dropped all of his claims and withdrew all four lawsuits less than a week after filing them.[8]

Thus, digging only a little bit beneath the surface of this relatively unknown, local, seemingly-run of the mill civil lawsuit brought by Detroit Will Breathe against its local police and municipal authorities we can see the very real threat facing all activists across the country. It is not hyperbolic to claim that, no matter the cause—be it environmental activism, racial inequality, police violence etc.—activists who speak out and organize against power not only run the risks of encountering physical violence at the hands of the police during actions, but also face a tidal wave of power, money, and political influence wielded by corporate actors; surviving the action is only the beginning of the fight for organizers and activists these days. There is now a secondary, far less public, battle being fought behind the scenes, of movement lawyers and social justice lawyers fighting against highly financed corporate actors (in league with the police) to preserve activists’ rights to not only speak out against injustice, but to litigate to preserve their rights.

To fight this potentially precedent-setting assault on free speech by a municipality, CLDC has filed an amicus brief in support of DWB’s case, insisting that the court must dismiss Detroit’s baseless—and unconstitutional—counter-suit.

[1] Protect the Protest (https://protecttheprotest.org) and CLDC (CLDC.org) have represented and advocated for many clients facing down such abusive lawsuits.

[2] https://www.propublica.org/article/private-donors-supply-spy-gear-to-cops

[3] https://truthout.org/articles/corporations-are-bankrolling-us-police-foundations-without-public-oversight/

[4] Id.

[5] https://www.indystar.com/story/news/politics/2020/11/17/top-indiana-election-drops-lawsuits-challenging-trump-loss-4-states/6258104002/

[6] https://www.washingtonpost.com/politics/courts-voting-fraud-claims-republicans/2020/09/28/ceff1184-fda2-11ea-b555-4d71a9254f4b_story.html?utm_medium=social&utm_campaign=wp_main&utm_source=twitter

[7] https://www.indystar.com/story/news/politics/2020/11/17/top-indiana-election-drops-lawsuits-challenging-trump-loss-4-states/6258104002/

[8] Id.