ST. LOUIS (CN) — At a hearing before an Eighth Circuit panel Wednesday, a St. Louis city attorney pushed back on claims that it is police department custom to use excessive force including tear gas and pepper spray on protesters.
Robert H. Dierker, representing the city, argued before the three-judge panel that an injunction issued by U.S. District Judge Catherine Perry should be vacated. Her injunction states that police cannot declare an unlawful assembly and use chemical agents against those “engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence” or to violate criminal law with force or violence.
“I think Judge Perry attempted to craft something that is reasonable, but in her effort to craft something that is reasonable, she demonstrated that you can’t have an order to address these types of situations,” Dierker told the court.
At issue is a lawsuit filed by protesters who claimed police violated their constitutional rights by using chemical weapons, beating them and interfering with them shooting video of police actions with their phones.
The plaintiffs were protesting the September 2017 acquittal of former St. Louis police officer Jason Stockley in the murder of Anthony Lamar Smith. They claim it is police custom to use excessive force without proper warning and even as retaliation.
Dierker argued video evidence of the protests refuted the custom claim.
“We did put together what I call highlight reels, which were included in the record and which we attempted to make a fair sampling of what was going on that particular weekend,” Dierker said. “And the video showed that there were many marches, there were many protests, in the streets. And for the most part, the police escorted those protests, and there was no evidence of the use of force on any regular organized basis.”
Dierker claimed the plaintiffs wanted Judge Perry to play the role of police commissioner.
“Dispersing is not rocket science,” he told the court. “You know people go their own way. And you don’t just tell a mob, ‘OK, move from this corner, three blocks down and remain a mob … the police were faced with fluid situations.”
Dierker pointed out that there was an attack on the mayor’s house and a mass arrest on Oct. 3 during a highway blockade and Perry had no issue with the police action in those situations.
He finished his argument by attacking the standing of the plaintiffs because they can’t show future harm.
The city’s counsel used his rebuttal time to highlight the police response to the riots from the George Floyd protests this summer in which several police officers were shot, a retired police officer working security was killed and a 7-Eleven was burned. Dierker claimed the injunction limited police response and put them in danger.
“This preliminary injunction constrains police in the most difficult situation to be in, short of going into a darkened building after a suspect,” Dierker said.
Anthony Rothert, of the American Civil Liberties Union, represented the plaintiffs.
The three-judge panel consisting of George H.W Bush appointee James B. Loken, George W. Bush appointee Bobby E. Shepherd and Ralph R. Erickson, a Donald Trump appointee, began Rothert’s argument time by questioning whether a certain individual could be held in contempt under Perry’s injunction and whether they would be entitled to qualified immunity.
“You would have to show that someone knew what the injunction was and knowingly violated it,” Rothert said.
The civil rights attorney then went on the offensive.
“We are challenging customs here. One is authorizing officers to use unfettered discretion to clear an unlawful assembly beyond when the law allows,” Rothert said. “Another policy authorizing any officer to give unfettered discretion to give dispersal orders that can be retaliatory, that can be vague, and then to execute them with using notice, and without a chance to comply.”
The panel asked Rothert if there was any documentary evidence of these customs.
Rothert said the issue lies in the officers’ interpretation that the law gives them absolute discretion to declare an unlawful assembly even when there’s no violence or threat of violence.
“These customs are not just one weekend in September 2017,” Rothert said. “But the testimony is that the same customs were in the years before and the years after the complaint was filed.”
Perry also granted the plaintiffs class certification. The appellate panel pressed Rothert about the merits of class certification and whether that complicated litigation.
Rothert said class certification saves the court thousands of individual civil rights claims and potentially thousands of preliminary injunctions against police activity. With a class action, there is just the single injunction.
“Your honor, the injunction is working well in the city of St. Louis. We’re ready for a trial on the merits. There is no reason for the injunction to dissolved,” Rothert said. “Throwing out the preliminary injunction now would be like throwing out an umbrella in a rainstorm because you are dry.”
The court took the case under advisement. There is no timetable for a decision.
Stockley shot Smith, a suspected drug dealer, in 2011 after a high-speed chase through residential neighborhoods. During the pursuit, according to a probable cause statement, Stockley was heard saying, “going to kill this motherfucker, don’t you know it,” about 45 seconds before the fatal shots were fired.
The acquittal sparked numerous, sometimes violent, protests.
The ACLU filed the civil rights claims on behalf of the plaintiffs a week after the acquittal.
The hearing took place on the same day that Louisville authorities are expected to announce the results of the Breonna Taylor shooting inquiry. Taylor was killed by Louisville, Kentucky, police serving a no-knock warrant while she was sleeping, sparking numerous similar protests against excessive police force throughout the country.