ST. LOUIS (CN) — A lawyer for numerous St. Louis city police officers accused of assaulting and arresting a journalist covering protests against police brutality argued before an Eighth Circuit panel Thursday that they are entitled to qualified immunity.
Most of the arguments during the teleconference hearing centered on one of the officers, James Wood.
Andrew Wheaton of the St. Louis City Counselor's Office argued that Wood’s involvement was limited.
“James Wood is among a number of defendants in these types of cases where his only involvement was being present at the scene,” Wheaton said.
Attorney Maureen Hanlon, representing former St. Louis Post-Dispatch reporter Mike Faulk, painted a different picture, stating that Wood moved Faulk’s bike from the street after his arrest.
“I think the significance of the bike shows that because he was close enough to go and grab the bike, it shows that further influence that he was one of the officers" involved, Hanlon said.
In a lawsuit filed in St. Louis federal court in February 2018, Faulk claims officers dressed in riot gear with shields and batons surrounded a group of 100 peaceful protestors on all four sides on Sept. 17, 2017, during a demonstration over the acquittal of a white police officer who killed a Black motorist.
The officers used a controversial technique called “kettling," a tactic used for controlling large crowds in which officers surround a group of protesters before arresting them. The officers never gave an order to disperse, Faulk claims, and there was no way for the peaceful protesters to leave.
Caught in the ensuing melee, Faulk says officers violently threw him to the ground and arrested him even though he was not resisting and had identified himself as a reporter. He says he was left with injuries to his limbs, neck and shoulders.
The three-judge panel used the majority of Wheaton’s 15-minute argument allotment questioning him on Wood’s involvement.
“Officer Wood here is being subjected to litigation … based on the fact that he was merely working during a mass arrest event on this evening,” Wheaton said. “I would also say he took a bicycle on the street that belonged to the plaintiff after another officer threw it into the street, but that's not the subject of any Fourth Amendment claim here.”
The panel continued by asking how what Wood did could not be considered seizure under the Fourth Amendment if Faulk was not free to leave during the kettling.
Wheaton argued that kettling did not constitute a seizure.
“Number one, there was no specific allegation that Officer Wood was even on the police line,” Wheaton said. “And number two, assuming he was, all he did was walk towards the group of people on a police line.”
Hanlon, of ArchCity Defenders, argued that Wood was presenting a new argument by contending that kettling was not a clear act of seizure under the Fourth Amendment.
“He simply did not present this line of argument to the district court,” Hanlon said.
She added, “Mr. Faulk was surrounded by officers on all four sides, sought a means of egress so an act to disperse and was not allowed to.”
In November 2017, a federal judge in another lawsuit related to the protests issued an injunction prohibiting city police from using the kettling technique during protests.
Faulk was covering the September 2017 protests for the Post-Dispatch after a St. Louis city judge acquitted former St. Louis police officer Jason Stockley for the killing of 24-year-old Anthony Lamar Smith. Stockley, who is white, fatally shot Smith, a Black man, following a police chase after a suspected drug deal in December 2011.
The reporter claims that even though he was wearing his Post-Dispatch credential around his neck and had identified himself as a member of the press, up to five officers tackled him to the ground.
One officer allegedly tried to hit him in the genitals with a baton and other officers grabbed him by each of his limbs. Another officer sprayed him in the face with pepper spray, he claims. At no time did Faulk resist the officers or do anything wrong, according to his lawsuit.
After allegedly spending 13 hours in jail, Faulk was released on a $500 bond and faced charges of suspicion of failure to disperse. Courthouse News and 28 other news organizations filed a brief in support of Faulk in July.
Running short on his time, Wheaton briefly touched on the district court’s refusal to dismiss intracorporate conspiracy claims made against the other 15 officers named in Faulk’s suit.
Wheaton was immediately met with resistance from the panel judges, who told him those claims were official capacity claims instead of the individual capacity claims made by Faulk.
The panel also pushed Hanlon on Faulk’s First Amendment violation claim. U.S. Circuit Judge David R. Stras, a Donald Trump appointee, voiced concerns that Faulk’s claims were blurred between acting as a reporter versus acting as a protester.
“Mr. Faulk was in a unique situation because he was a reporter, and they're effectively attempting to cover the news, but then he gets literally caught in this kettle and punished,” Hanlon said.
U.S. Circuit Judges James B. Loken, a George H. W. Bush appointee, and Bobby E. Shepherd, a George W. Bush appointee, joined Stras on the panel. There is no timetable for a decision.
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