No qualified immunity for Iowa police officer who arrested photographer at George Floyd protest

(CN) — A police officer who arrested a photojournalist covering a protest in downtown Des Moines in reaction George Floyd's murder in Minneapolis is not entitled to qualified immunity for illegal seizure and excessive force, a federal appeals court held Wednesday. The court, however, affirmed the dismissal of the reporter’s First Amendment claim.

Mark "Ted" Nieters, a freelance photographer with international experience, was covering the spring 2020 protest when he was tackled by Des Moines police officer Brandon Holtan, then pepper sprayed and arrested for failure to disperse, a misdemeanor.

Nieters said he was far from the protest crowd when he was arrested, had 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.

A federal judge in Des Moines dismissed Nieters’ illegal seizure, excessive force and First Amendment retaliation claims on grounds that Officer Holtan had qualified immunity. Nieters appealed to the St. Louis-based Eighth Circuit Court of Appeals.

In its ruling issued Wednesday, the appeals court reversed the trial court on the illegal seizure and excessive force claims while agreeing that the officer had qualified immunity on Nieters’ First Amendment claim.

The ruling written by U.S. Circuit Judge L. Steven Grasz, a Donald Trump appointee, was joined by circuit Judge Jane Kelly, a Barack Obama appointee. Judge Raymond Gruender, a George W. Bush appointee, wrote separately to dissent from the majority on the unlawful arrest claim.

“On the evening of the protest, even if there were members of the crowd who participated in riots or formed unlawful assemblies, there is no evidence Nieters joined any of these groups,” Grasz wrote for the majority, adding that Officer Holtan admitted Nieters was not part of the group of rioters he was chasing.

“Additionally, Nieters was not running away as others were. Rather, he was standing outside a hotel wearing two cameras and taking photographs of a gas canister and fleeing protestors just prior to Officer Holtan tackling him.”

To establish he is entitled to qualified immunity Holtan must show there was at least arguable probable cause for arresting Nieters. That was not the case here, the court said.

“Even if we concluded Officer Holtan made a reasonable mistake about probable cause when he first tackled Nieters to the ground, Nieters immediately informed Officer Holtan that he was a journalist and he provided press credentials,” Grasz wrote.

“Yet Officer Holtan still arrested Nieters because he did not want to be perceived as giving a journalist special treatment. Once Officer Holtan was aware Nieters was a member of the press, and had no reason to believe Nieters had been within hearing distance of the orders to disperse, it certainly was not an ‘objectively reasonable’ mistake to believe probable cause existed for the arrest.”

Nor is the police officer protected by qualified immunity from Nieters’ excessive force claim, the court said, because when Holtan charged toward him, Nieters had his hands in the air and stood still before he turned his body away. A jury could conclude a reasonable officer would have interpreted Nieters’ action not as an attempt to flee, but as an attempt to shield himself or his cameras from the impact of Officer Holtan running at him.

In affirming the dismissal of Nieters’ First Amendment retaliation claim, the court said while there is “no debate” that the First Amendment protected Nieters’s activity at the protest, Nieters failed to show that he was singled out from other protesters because he was exercising his constitutional rights.

“The City is disappointed with the 8th Circuit’s split decision today and believes that the dissent is correct in its assertion that the majority misapplied the law in reversing part of the district court’s decision,” Des Moines City Manager Scott Sanders said in a statement released by the city Wednesday. “While the City appreciates the Court’s affirmance of the dismissal of the Plaintiff’s First Amendment claim, we will be exploring all options to reach an appropriate result in addressing this split decision.”

Gina Messamer, an attorney with Parrish Kruidenier in Des Moines representing Nieters, said the ruling is an important reminder of the freedom of the press.

"The freedom of our press is a right we mostly take for granted and, luckily, it is unusual for police to suppress the rights of reporters," she told Courthouse News. "This case is a reminder that the Constitution is the backstop when things go wrong. Ted Nieters is glad he will have the opportunity to hold this officer accountable at a trial."

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