Federal judge allows Charlotte protester’s First Amendment case to proceed

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  • A federal judge will allow a First Amendment lawsuit to proceed against Charlotte and some of its police officers. Plaintiff Kyre Mitchell filed suit after losing two of his fingers following a 2020 protest in the city.
  • Mitchell said he lost the fingers after picking up a flashbang grenade police had thrown toward him during the protest.
  • While Mitchell can proceed with First Amendment claims, a court order dismisses other complaints based on the Fourth Amendment and state constitutional issues.

A man who lost two fingers after a 2020 protest in Charlotte can proceed with a federal First Amendment lawsuit against the city and police officers. A federal judge issued an order Friday allowing that portion of the lawsuit to move forward.

US District Judge Robert Conrad’s order adopted March 1 recommendations from a magistrate judge. No party in the case had objected to those recommendations.

Plaintiff Kyre Mitchell says he lost two fingers after handling a flashbang grenade police threw toward him during the protest.

US Magistrate Judge Susan Rodriguez’s order denied defendants’ motion to dismiss Mitchell’s First Amendment claims. Rodriguez granted defendants’ motion to dismiss Mitchell’s other complaints dealing with the Fourth Amendment and state constitutional issues.

The order also addressed Mitchell’s request for an injunction blocking Charlotte from using “flash bombs” in public spaces in the future. “[T]he law is clear that Plaintiff does not have standing for injunctive relief based on his past injury,” Rodriguez wrote. The judge did not “completely foreclose injunctive relief on other grounds.”

The magistrate judge distinguished Mitchell’s First Amendment complaints from the rest of the lawsuit.

“Here, Plaintiff plausibly pleads that he was engaged in protected First Amendment activity when he participated in protests on public sidewalks and streets to protest police violence,” Rodriguez wrote. “The Individual Defendants argue that they are entitled to qualified immunity on Plaintiff’s § 1983 claim for First Amendment violations because Plaintiff’s Complaint alleges instances of violence and a ‘tense and evolving situation on May 30, 2020’ meeting the definition of a riot under North Carolina law such that any of the Individual Defendants were objectively reasonable in using crowd control techniques on the crowd as a unit.”

“While Individual Defendants’ argument may have merit, it is premature at this … stage,” Rodriguez added. “Defendants point to certain facts in the Complaint which allege there were instances of anger, aggression, and damage to property by demonstrators. However, the Complaint also alleges that those instances were rare, were done by individuals who could have been singled out for removal from the protest, and that ‘no incident occurred justifying CMPD to character the protests as an unlawful assembly or to use widespread, indiscriminate force against the crowd of demonstrators.’”

“Moreover, the Complaint alleges that at the time the device was allegedly thrown near Plaintiff’s feet, it was thrown in an area that contained peaceful protestors and bystanders, and ‘never having engaged in any activity that could be considered violent,’” Rodriguez wrote.  

Charlotte officials filed paperwork in April 2023 seeking to dismiss Mitchell’s case. He filed suit in January 2023 against the city, its police chief and former deputy chief, 17 current and former named Charlotte-Mecklenburg Police Department officers and supervisors, and 50 other unnamed officers from other law enforcement agencies.

Mitchell claimed their actions during a May 30, 2020, protest caused the injuries that led to amputation of the middle and ring fingers on his right hand, as well as burns affecting the rest of his hand.

The protest took place in connection with the killing of George Floyd. Police “deployed teargas, pepper bullets, and flashbang grenades” while dealing with protesters, according to a city memorandum.

“Plaintiff alleges that around 11:30 p.m, while he was standing near other protestors at the
intersection of Fifth Street and North Tryon Street, he picked up an object that then exploded in his hand,” according to the city memo.

Mitchell’s suit claims that he saw a police officer standing 50 away, who threw a device that “landed directly at his feet.” To protect people nearby, he picked up the device and planned to throw it away. The device instead exploded in his hand.

“Plaintiff offers multiple theories as to who allegedly threw the object that injured his hand,” the city argued in its memo. “In one theory, Plaintiff makes identical allegations against each of the thirteen CMPD Officer Defendants and alleges that ‘one or more of these officers
personally deployed the chemical munitions and the flash-bang grenade that caused the Plaintiff’s injuries.’ In another theory, Plaintiff alleges that his injuries may have been caused by someone else — either a different CMPD police officer or ‘law enforcement officers employed by neighboring Cities and Counties who provided aid to the CMPD.’”

“Plaintiff fails to even state the factual basis for his conclusory allegation that the person
who threw the device was ‘a police officer,’” the city’s memo continued. “Plaintiff specifically alleges that at least some ‘police officers … were dressed in plainclothes on May 30, 2022.’ Nowhere does Plaintiff describe the person who threw the device that ultimately injured his hand. To the extent Plaintiff is alleging that the person who threw the incendiary device could have been ‘dressed in plainclothes,’ that further contradicts his speculation as to the identity of the person.”

The city challenged Mitchell’s attempt to have a federal judge ban Charlotte-Mecklenburg police from using flashbang grenades in the future.

“No one doubts the severity of Plaintiff’s hand injury,” Charlotte’s memo concludes. “But Plaintiff offers nothing more than speculation that his injuries were caused by one of the 17 named defendants in this case, each of whom Plaintiff seeks to hold personally liable. Neither is there any plausible allegation that a policy or custom of the City is to blame.”