ST. LOUIS (CN) – In a win for the American Civil Liberties Union, a federal judge found St. Louis police violated demonstrators’ rights during recent protests and ruled they can’t use or threaten to use pepper spray against peaceful protesters.
U.S. District Judge Catherine D. Perry wrote Wednesday in a 49-page injunction order that city 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 a criminal law with force or violence.”
The decision is part of the fallout of the Jason Stockley verdict. On Sept. 15, Stockley, a white former St. Louis City police officer, was acquitted by a city judge in the December 2011 killing of a black man.
Stockley’s innocence – especially since he was recorded saying that he was going to kill the man, a suspected drug dealer, during a high-speed police pursuit 45 seconds before the fatal shots rang out – sparked a new wave of sometimes violent protests in a region still simmering from the Michael Brown shooting in August 2014 and subsequent protests.
The American Civil Liberties Union, on behalf of a group of Stockley protestors, filed a lawsuit on Sept. 22, claiming police violated their constitutional rights by using chemical weapons, beating them and interfering with the videotaping of police activity.
Issuing a preliminary injunction, Judge Perry, a 1994 Bill Clinton appointee, found Wednesday that the plaintiffs were likely to succeed on the merits of their claims.
“While unlawful assemblies were declared at times in response to violent activity by protesters (for example, at the mayor’s house on the evening of September 15, 2017), plaintiffs presented evidence that they were also declared at other times when it was not ‘reasonable for rational, firm and courageous persons in the neighborhood of the assembly to believe the assembly will cause injury to persons or damage to property and will interfere with the rights of others by committing disorderly acts,’” Perry wrote. (Parentheses in original.)
The wide-ranging injunction states that police also can’t use an unlawful assembly order or threaten the use of chemical agents to punish protesters for exercising their rights.
St. Louis police also can’t use pepper spray, mace and other chemical agents against “expressive, non-violent activity” without probable cause to make an arrest and without providing “clear and unambiguous warnings” and an opportunity to heed those warnings.
In response to a controversial “kettling” technique that police used on Sept. 17 to arrest more than 100 protestors, Perry wrote that police cannot give dispersal orders without giving people specifics about what area they must leave and what chemical will be used. They must also give demonstrators enough time and a way to leave the area.
Kettling is a police tactic used for controlling large crowds at demonstrations or protests. It is controversial because it sometimes results in the arrest of ordinary bystanders along with protesters.
“This custom or policy permits officers to exercise their discretion in such a manner as to impermissibly curtail citizens’ First Amendment rights of assembly and free speech based upon nothing more than a subjective determination by an officer that ‘we’re done for the evening,’ or when the content of the speech is deemed objectionable, or because an earlier assembly in a different location was declared unlawful,” Perry wrote. “Plaintiffs have presented sufficient evidence at this stage of the proceedings that this discretion was in fact exercised in such a manner in violation of plaintiffs’ constitutional rights.”
Tony Rothert, legal director for the ACLU of Missouri, called Perry’s decision “a win for the people of St. Louis and for the First Amendment.”
“By requiring police to adopt these common-sense solutions, we can protect rights of the people to express their concerns about the troubling racial disparities in policing,” Rothert said.
Police argued that the plaintiffs in the case were treated no differently than protesters at other Stockley-related demonstrations. A mayoral spokesman said in an email to the St. Louis Post-Dispatch that the city would “comply with the order.”
Judge Perry immediately ordered both sides to mediation, something Rothert told the Post-Dispatch was unusual at this stage in a case. He said the ACLU was open to working something out with city officials.
Also on Wednesday, U.S. Rep. William Lacy Clay, D-St. Louis, asked Eastern Missouri U.S. Attorney Jeffery Jenson to launch a federal investigation into what Clay called “alleged unconstitutional practices by St. Louis area local law enforcement agencies in response to protests” after Stockley’s acquittal.