Detroit Will Breathe v. Detroit, City of
484 F.Supp.3d 511
E.D. Mich.
2020

Background

  • Plaintiffs (Detroit Will Breathe and 14 individuals) allege Detroit Police Department used excessive force against peaceful Black Lives Matter demonstrations beginning May 29, 2020 and continuing through summer 2020 (notably May 29–June 2, July 10, August 22).
  • Allegations include use of batons/striking weapons, tear gas/pepper spray, rubber bullets, sound cannon, flash grenades, chokeholds, vehicle ramming, overly-tight zip-tie restraints, and mass arrests without probable cause.
  • Plaintiffs filed for a 14‑day temporary restraining order (TRO) enjoining specified tactics; the City, Mayor, and Police Chief were served, many individual officers were not; parties could not resolve the motion by agreement.
  • The court applied the TRO/preliminary‑injunction framework, focusing on likelihood of success on the merits (most important), irreparable harm, balance of equities, and public interest.
  • The court found Plaintiffs likely to succeed on Fourth Amendment excessive‑force claims and on First Amendment retaliation/assembly claims based on affidavits and video, and found a plausible municipal‑liability theory.
  • The court granted a limited TRO (14 days, extendable up to 28 days with consent) enjoining, among other things, use of striking weapons/chemical agents/rubber bullets on peaceful non‑threatening protesters, deploying chemical agents/sound cannon without audible warning and reasonable dispersal time, chokeholds/vehicle ramming, tightening restraints to cause injury, and mass arrests without probable cause; no bond required.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Excessive force (Fourth Amendment) DPD used batons, gas, rubber bullets and vehicle force against peaceful, non‑threatening protesters Police need non‑lethal options to respond to threats; split‑second decisions in chaotic scenes Court: Plaintiffs likely to succeed on excessive‑force claims as to some incidents (video/affidavits support claim)
Post‑arrest restraints/conditions (Fourth Amendment) Zip‑tie/handcuffs applied so tightly caused injury and loss of circulation Restraints necessary for officer safety; facts disputed Court: Allegations plausibly show excessive force in custody; likelihood of success on this claim at this stage
First Amendment retaliation/assembly Use of force and officer statements deterred protest and were motivated by protected speech Actions taken for crowd control and public safety, not retaliation Court: Plaintiffs likely to succeed on retaliation claim; conduct would deter ordinary person and some officer statements support motive
Municipal liability (Monell) City's policies/customs or failures to train/supervise permitted violations; officers said they were "following orders" City points to mixed public statements and denial of an official abusive policy Court: Evidence permits plausible inference of municipal policy/custom or ratification; likelihood of success on Monell claim at TRO stage

Key Cases Cited

  • Enchant Christmas Light Maze & Mkt. Ltd. v. Glowco, LLC, 958 F.3d 532 (6th Cir. 2020) (TRO is an extraordinary remedy; preserves status quo)
  • Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423 (U.S. 1974) (purpose of ex parte TRO to preserve status quo only as long as necessary)
  • S. Glazer's Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844 (6th Cir. 2017) (four‑factor preliminary injunction framework)
  • Graham v. Connor, 490 U.S. 386 (U.S. 1989) (objective‑reasonableness standard for excessive‑force claims)
  • Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002) (Fourth Amendment applies to custody conditions)
  • Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002) (overly tight handcuffs can constitute excessive force)
  • McCutcheon v. FEC, 572 U.S. 185 (U.S. 2014) (political expression protected by First Amendment)
  • Boos v. Barry, 485 U.S. 312 (U.S. 1988) (protection for political expression, including sharp criticism of public officials)
  • Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018) (First Amendment retaliation standard: adverse action deterrence and retaliatory motive)
  • Thaddeus‑X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (elements of retaliation claim articulated)
  • Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (U.S. 1978) (municipal liability for constitutional violations via policy/custom/ratification)
  • Los Angeles County v. Humphries, 562 U.S. 29 (U.S. 2011) (plaintiff bears burden to show municipal policy/custom)
  • Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) (likelihood of success often determinative in constitutional injunctions)
  • Elrod v. Burns, 427 U.S. 347 (U.S. 1976) (loss of First Amendment freedoms constitutes irreparable injury)
  • Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (balance of equities and public interest in injunction analysis)
  • Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) (constitutional rights threatened or impaired mandate irreparable‑harm finding)
  • Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013) (methods to prove municipal liability)
  • Abay v. City of Denver, 445 F. Supp. 3d 1286 (D. Colo. 2020) (similar injunctions in protest‑response cases)
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