San Diego attorney takes unique tack in suit against ‘less lethal’ police ammunition

Attorneys who filed a lawsuit last week alleging the city of La Mesa and its police chief have unconstitutionally used taxpayer dollars to purchase less lethal ammunition used against protesters might have an early glimpse of how their case could settle.

However, Gerald B. Singleton of Singleton Law Firm APC in San Diego said he's positioned to secure a more favorable settlement than the ACLU did against the city of Denver in a similar case.

"I think public opinion is better now than it was when the ACLU filed, even though it was only a short time ago," Singleton said in an interview Friday. "Having done civil rights for a while, I kind of sense that there really is a change right now, and I'm optimistic in a way that I haven't been in prior cases that we may see some systemic change."

Singleton filed the complaint in San Diego County Superior Court on July 7 on behalf of a city resident who claimed to have recently participated in peaceful protests in the aftermath of the George Floyd killing in Minnesota. Miller v. City of La Mesa et al., 23404-CU-MC-CTL (San Diego Sup. Ct., filed July 7, 2020).

The complaint says his client, who was not injured by police, is concerned about the "reckless, illegal and unconstitutional" use of La Mesa residents' taxpayer dollars to purchase beanbags, rubber bullets, chemical devices and batons. The complaint alleges these "less lethal" ammunitions have been indiscriminately used by police to disperse nonviolent demonstrators, causing serious injuries.

Singleton selected a client who was present at the protests but not injured because he said the firm wants to make a point that it's not about compensating an individual. "It's about changing what we believe is a harmful practice," he said.

A group of civil rights attorneys in San Diego who are representing people injured in the La Mesa protests, including an elderly woman who was put in a medically-induced coma allegedly after a ban bag round struck her head, are planning to announce further suits against the police department at a news conference on July 16, Singleton said.

It's not the first time a municipality has been hit with a lawsuit over its police department's use of the "less lethal" force in the weeks since Floyd was killed by Minneapolis police.

In June, a federal judge in Denver issued a temporary restraining order against the police department's use of the such ammunition. The order was issued after the ACLU sued the city, highlighting examples of alleged misuse of tear gas, flash bangs and rubber bullets against protesters. Black Lives Matter 5280 et al., v. City and County of Denver, 1:20-cv-01878 (District Court, D. Colo. filed June 25, 2020).

The night before that order was set to expire, the city and the ACLU settled on an agreement that stipulated only sergeants or higher ranking officers could use those devices. The settlement also specified that officers would be required to announce the ammunition was being used ahead of time.

The city of Santa Rosa is also facing a class action suit against its police department. The suit, filed June 23 in the Northern District of California by Isaac D. Schwaiger of Schwaiger Law Firm and John H. Scott of Scott Law Firm, alleges the police chief unlawfully ordered the use of sting ball grenades, chalk grenades and rubber bullets "without regard for public safety and constitutional rights of those assembled."

U.S. District Judge Vince Chhabria issued an order to show cause on June 30 in that case, stating the suit raises serious questions about the constitutionality of the police department's conduct during the protests. A hearing on their motion is scheduled for Aug. 13. Martinez et al., v. City of Santa Rosa, 3:20-cv-04135 (N.D. Cal. filed June 23, 2020)'

But Singleton says there's a key difference between his case and other suits similar to his that puts him in position for a better outcome.

That difference is his assertion that the La Mesa Police Department's dependence on taxpayer dollars to purchase and deploy the "less lethal" ammunition is an illegal and unconstitutional expenditure that increases the cost of public participation in protests. His suit seeks a permanent injunction restraining the police department from using public funds to purchase the ammunition. But he said he would still consider it a victory if he could convince the court to issue an order directing police to use it less frequently.

"Obviously we'd love to get them banned," he said. "But if we can't do that, then at least to get severe restrictions, I think that would be a huge step in the right direction."

The La Mesa City Attorney's Office could not be reached for comment. Singleton said the city hasn't yet been served because its offices are closed due to the pandemic.