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| Scott Brooks |
Police officers responding to this week's protests in California have reportedly struck at least three journalists with nonlethal projectiles,[1] and, if tensions persist, there may well be more injuries in the days ahead. The risk of confrontation has the potential to spur a new round of Fourth Amendment excessive force suits, compelling courts and litigants to wade once more into a contentious and continuously evolving area of law.
The oncoming wave of litigation is likely to outpace the federal courts' response to the last deluge of civil rights suits, following the nationwide protests for racial justice in the summer of 2020. Across the country, protesters who were shot or battered by law enforcement officers brought dozens of suits, many of which remain ongoing.
Those cases took a number of forms, as is typical of litigation arising from protests on issues of national importance. Most often, the plaintiffs in these cases sought relief under Title 42 of the U.S. Code, Section 1983, which authorizes claims against state and local officials for constitutional violations.
In these suits, the primary obstacle to relief is qualified immunity, which requires the plaintiff to show not only that the officer violated their constitutional rights, but that those rights were clearly established at the time the incident occurred.
This can pose challenges for all Section 1983 plaintiffs, but it is an especially difficult bar to clear in protester cases, as in most jurisdictions, there is still not a robust body of case law on officers' use of force against protesters.
Section 1983 offers no recourse for protesters injured by federal officers. In those instances, the plaintiff has two options. The first is to assert a constitutional claim against the officers themselves under the U.S. Supreme Court's 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents.[2]
Bivens, though, offers little prospect of relief. In case after case over the last several decades, the Supreme Court has narrowed Bivens to the point of near-irrelevance. As the doctrine currently stands, articulated by the Supreme Court in its 2022 decision in Egbert v. Boule, most suits will fail if, in the court's assessment, "there is any reason to think that 'judicial intrusion' into a given field might be 'harmful' or 'inappropriate.'"
Of course, defendants can almost always articulate a reason — for example, because a statute or regulation offers alternative avenues to redress the plaintiff's grievance, or because the plaintiff's claim might conceivably entrench on matters traditionally reserved for Congress or the executive branch, such as national security.[3]
The second option available to protesters injured by federal officers is the Federal Tort Claims Act, which allows suits against the U.S. for assault and battery. The FTCA offers an easier path to recovery than Bivens or Section 1983, in no small part because FTCA claims are not vulnerable to a qualified immunity defense.
But plaintiffs seeking relief under the FTCA have no right to a jury trial and cannot recover punitive damages. These can be frustrating limitations for protesters, whose motivation for bringing suit will, in many cases, align perfectly with the purpose punitive damages are designed to serve: to highlight the wrongfulness of the officers' actions and make authorities think twice about attacking protesters in the future.
Identifying the proper cause of action can pose steep challenges in protester cases, particularly where multiple law enforcement agencies, both at the state and federal level, are active in responding to the protest. Often in such protests, the officers wear all-black uniforms with few markings to identify them or the agency that employs them.
In Washington, D.C., for example, the law enforcement response to the Black Lives Matter protests in May and June 2020 drew officers from as many as five federal agencies, two local police departments and the District of Columbia National Guard. To the casual observer, their uniforms appeared virtually indistinguishable.
Identifying officers and their employers is possible, though, with sufficient effort. For plaintiffs counsel, it is vital to reach out to as many protesters and onlookers as possible to seek out cellphone videos capturing the demonstration and, if possible, the assault on the plaintiff. A careful, frame-by-frame review of these videos will often reveal distinguishing features on the officers' uniforms, including, perhaps, insignia on the officers' helmets or initials on their sleeves.
With enough scrutiny, counsel may be able to get the clarity needed not only to settle on the proper cause of action, but also to identify the officers necessary to depose.
If videos do not resolve all ambiguities, early discovery might. While federal courts are generally reluctant to authorize discovery before all motions to dismiss have been resolved, courts will often permit a plaintiff to issue interrogatories or other requests to opposing counsel for the limited purpose of identifying potential defendants. This can be a critical step to ensuring that the plaintiff asserts all claims within the applicable statute of limitations.
The ability to review footage of the demonstration from multiple angles will continue to pay dividends for both parties long after the pleading stage. The question at the heart of every excessive force suit, or any suit against law enforcement for common law battery, is whether the officer's use of force was reasonable.
Among the most common refrains in excessive force cases is that courts should recognize officers' need to make split-second judgments in chaotic, rapidly evolving circumstances. In protest cases, video footage showing a large and boisterous crowd may give the court pause about second-guessing officers' decisions. And even if the footage shows that just a handful of people in an otherwise peaceful crowd were acting out of line — for example, by throwing water bottles — the defense will be sure to spotlight them.
The task for plaintiffs counsel will be to contextualize those incidents, using the recordings to show that the scene was not as chaotic as the defense has portrayed it to be, and that the plaintiff, in particular, posed no threat to the officers' safety.
Of course, not every case will be decided on reasonableness. To succeed on a Fourth Amendment claim, a plaintiff must first show that they were seized. Up until a few years ago, this was not a difficult requirement for most injured protesters to satisfy. However, in Torres v. Madrid, the Supreme Court in 2021 revised the test for determining whether a seizure has occurred, holding that the officer must have "objectively manifest[ed] an intent to restrain" the plaintiff.[4]
This test threatens to weaken protesters' prospects for recovery in excessive force suits, as the defense can now be expected to argue that the purpose of using force against the protesters was not to restrain them, but to disperse them.
The potency of this argument remains unclear: While some courts have rejected excessive force claims on this basis,[5] others have found that a use of force against a protester can constitute a Fourth Amendment seizure even in the midst of a dispersal operation.[6]
The Black Lives Matter suits are establishing new precedents in an area of law that, to this point, could be described as underdeveloped. If, however, as it seems, we are in the midst of a new age of activism in America, these precedents will be important. The decisions courts make today, and after the next wave of protester suits, will draw lines for law enforcement — establishing what they can do, and what they cannot — for years to come.
Scott Brooks is a partner at Levy Firestone Muse LLP.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See James Gregory, British Photographer Injured by 'Plastic Bullet' in LA Protests, BBC (June 9, 2025), https://www.bbc.com/news/articles/cvg7vzrj6g3o; Ali Watkins, Some Journalists Are Injured While Covering L.A. Protests, NY Times (June 9, 2025), https://www.nytimes.com/2025/06/09/us/la-protests-reporter-shot-lauren-tomasi.html; David Propper, Post Photographer Shot in the Head with Rubber Bullet in LA Anti-ICE Riots – And He Caught the Terrifying Moment on Camera, NY Post (June 9, 2025), https://nypost.com/2025/06/09/us-news/post-photographer-shot-with-rubber-bullet-in-la-riots/.
[2] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
[3] Egbert v. Boule
, 596 U.S. 482, 494, 497 (2022).[4] Torres v. Madrid
, 592 U.S. 306 (2021).[5] See, e.g., Puente v. City of Phoenix
, 123 F.4th 1035, 1053 (9th Cir. 2024); Perkins v. City of Des Moines , 712 F. Supp. 3d 1159, 1172-74 (S.D. Iowa 2024); Ratlieff v. City of Ford Lauderdale , No. 22-CV-61029-RAR, 2023 WL 3750581, at *8 (S.D. Fla. June 1, 2023).[6] See, e.g., Sanderlin v. Dwyer
, 116 F.4th 905, 912-13 (9th Cir. 2024); Fitil v. City of Omaha , No. 8:22CV364, 2025 WL 1101220, at *3 (D. Neb. Apr. 14, 2025); Alsaada v. City of Columbus, 536 F. Supp. 3d 216, 265 (S.D. Ohio 2021).