Father of child pepper-sprayed during Seattle BLM protest files federal civil rights lawsuit

The father of a child who was doused with pepper spray during the early days of the 2020 Black Lives Matter protests in downtown Seattle has filed a federal civil rights lawsuit alleging assault and negligence by the involved police officers.

Their use of force sparked national outrage after video and photos showed volunteer medics and other protesters pouring water and milk on the screaming child’s face in an effort to relieve his suffering. Police accountability officials say the highly publicized incident generated nearly 13,000 complaints against the department.

Following a three-month investigation, Seattle’s civilian-run Office of Police Accountability determined the boy’s injuries were “inadvertent” and that the incident was not an excessive use of force or a violation of Seattle Police Department policy. The officer was trying to direct a stream of pepper spray at another protester and struck the child instead, according to the OPA.

The boy’s father, Armand Avery, alleges in a lawsuit filed Tuesday in U.S. District Court that he and his son – who was 7 years old at the time and is identified in the suit by the initials “A.J.” – “decided to participate in a peaceful rally and protest” near Westlake Mall with members of their family and church congregation on May 30, 2020. The demonstration came five days after the Minneapolis police murder of George Floyd shocked the nation’s conscience and sent thousands of Black Lives Matter protesters into the streets.

Vandalism and violence – including the torching of several police cars – resulted in Seattle officers resorting to force, including the use of tear gas, pepper spray and batons against protesters, most of whom were peaceful and not breaking laws. A federal judge later found the police uses of force likely violated the civil rights of thousands who had gathered to peacefully and legally protest police violence and brutality.

Anthony Derrick, a spokesperson for City Attorney Ann Davison, said the office is unable to comment on pending litigation. Avery’s attorney, James Bible, did not immediately respond to a phone message seeking additional comment.

According to the OPA investigation, a police sergeant had rushed to reinforce riot armor-clad officers stretched across Third Avenue near Westlake Plaza after police had pulled a man behind the police lines to arrest him for an earlier incident.

The crowd, while mostly nonviolent, jostled the officers, and a masked woman wearing a bike helmet is seen in body camera footage grabbing an officer’s baton and shoving him. That’s when the sergeant – who had a blast ball in one hand and a large canister of pepper spray in the other – unleashed a stream of the blue-dyed irritant at the woman.

Body camera footage showed the child and his father were right behind the woman in the bike helmet, and the internal investigation concluded that it was unlikely the sergeant could see the child, who was dwarfed by the jostling adults around him. The boy got a dose of the powerful irritant as the woman ducked and scrambled away.

“Videos and pictures were taken of the aftermath of A.J. being sprayed with (Oleoresin Capsicum) spray,” a powerful irritant that causes a burning sensation, pain and temporary blindness, the lawsuit says. “In the videos, A.J. can be seen crying out in pain and shaking.”

The lawsuit alleges the child was in agony much of that evening and was treated at a hospital for chemical burns.

The lawsuit also alleges the city and its officers violated the law against discrimination because Avery and his son are Black and the protest “was intended to address disproportionate excessive force used unjustly against African Americans and other people of color.”

“The use of noxious gases against individuals exercising their constitutional right to speak out about issues of inequity in support of members of a protected class constitutes a violation of the Washington State Law Against Discrimination,” the lawsuit claims.

The lawsuit alleges outrage, negligence and violations of the father and son’s Fourth Amendment protections against illegal seizure.