(CN) — A photojournalist covering an Iowa protest in response to the murder of George Floyd in Minneapolis was wrongly arrested by a Des Moines police officer, his lawyer told a federal appeals court panel Thursday, arguing the officer should not be protected from liability by qualified immunity.
Mark "Ted" Nieters, a freelance photographer with international experience, was covering a spring 2020 protest in downtown Des Moines in reaction to the Floyd murder when he was tackled by Des Moines police officer Brandon Holtan, pepper-sprayed, and arrested for failure to disperse, a simple misdemeanor.
Nieters asserts he was far from the protest crowd when he was arrested, that he clearly identified himself as a journalist – including having two cameras and photo equipment strapped to his body, wearing a blue helmet, and carrying a press pass – and that he was not within hearing range when police officers issued an order for protesters to disperse.
“When Nieters observed Holtan charging at him,” Nieters’ lawyer wrote in an appellate brief, “he stood still and put his hands up. One of Nieters’ cameras was in his hand. The other was strapped to his shoulder. Holtan grabbed Nieters with one arm and sprayed him in the face with pepper spray with the other hand. Holtan tackled Nieters to the ground. Nieters continued to hold his hands up in the air as Holtan tackled him.”
The state subsequently filed a motion to dismiss the charge, stating that it had “been unable to sufficiently document this defendant’s actions for charges to go forward at this time” and the charge was thrown out on the same day.
Nieters filed a 12-count civil suit in state court against Holtan and the city. The case was removed to U.S. District Court for the Southern District of Iowa, which remanded the counts raised under state law to the state trial court, leaving Nieters’ federal constitutional claims for illegal seizure, excessive force, and retaliation. The district court dismissed those claims on summary judgment, granting Holtan qualified immunity.
The photojournalist argues on appeal to the St. Louis-based Eighth Circuit that because he was not participating in the protest and was not near where the dispersal order was given, Holtan had no justification or probable cause under the Fourth Amendment for tackling and arresting him, and that the officer is not entitled to qualified immunity.
“Rather, the evidence suggested that Nieters was working, not protesting: he was visibly wearing two cameras, and he was taking photos of the gas canister and the fleeing protesters just before Holtan tackled him,” his brief states.
In its own brief filed with the appeals court, the city argued that the officer was justified in making the arrest of Nieters.
“Based on the undisputed record at summary judgment, the District Court correctly found that Officer Holtan had probable cause to arrest Mr. Nieters,” the brief states. “The presence of probable cause defeats all of Nieters’ arguments on appeal, including the First Amendment retaliation claim. Further, there is no clearly established law to be free from seizure when one deliberately places oneself in the middle of a riot and then turned away from the police presence and did not follow police instructions and there is no special right for members of the media to violate the law. In making the arrest of Nieters, Holtan used reasonable force within acceptable police practices, in the context of an ongoing riot.”
During oral arguments Thursday, Nieters’ counsel, Gina Messamer of the Des Moines firm of Parrish Kruidenier, told the appellate judges there was no probable cause for his arrest.
She said officers made an effort to “separate the wheat from the chaff” to determine whether someone was a protester or just a random person, but no such effort was made in Nieters’ case. “Standing by yourself is not enough, and that is what Ted Nieters was doing here.”
Michelle Mackel-Wiederanders, counsel for the city of Des Moines representing Holtan, told the three-judge panel that Nieters did not have a First Amendment right to break the law.
“This gets to the notion of issue that Mr. Nieters was a member of the press that he could break the law,” she said, noting other reporters who were clearly marked as members of the media were ordered to disperse. “So, camera or not, they were still in an area where an unlawful assembly was happening, and from that perspective it didn’t matter if he was taking a picture, it didn’t matter if he even was completely marked as press.”
There had been an unlawful assembly at that time, she said. “If you choose to be affiliated with that group, whether it’s to take a picture or whatever it is, it is not a clearly established right that you get to break the law just to take a good picture.”
Members of the panel hearing Thursday’s argument were U.S. Circuit Judges Raymond Gruender, Jane Kelly and L. Steven Grasz, appointed by George W. Bush, Barack Obama and Donald Trump, respectively.
The court did not indicate when a ruling will be issued.
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