8th Circuit refuses to toss suit over kettling said to sweep up innocent bystanders during protests

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Criminal Justice 8th Circuit refuses to toss suit over kettling said to sweep up innocent bystanders during protests

By Debra Cassens Weiss

February 4, 2022, 9:46 am CST

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A federal appeals court has refused to toss a lawsuit by a St. Louis man who claims that police violated his constitutional rights during a protest when they boxed him and other innocent bystanders into an intersection and made mass arrests.

The 8th U.S. Circuit Court of Appeals at St. Louis said plaintiff Brian Baude’s suit should not be defeated by the officers’ claims of qualified immunity.

At this stage of the litigation, the appeals court said, there are too many factual disputes to determine whether subordinate officers acted reasonably in following orders and whether supervisory officers intended to use excessive force.

Judge Ralph Erickson wrote the Jan. 27 opinion, joined by Judges Jane Kelly and L. Steven Grasz.

Law360 and Law.com have coverage.

Baude said he was unaware of dispersal orders when he left his home in September 2017, during protests over the acquittal of a white police officer accused in the shooting death of a Black driver.

Baude said he asked to leave when the kettling operation began, but officers told him that it was too late. Video evidence shows several others approaching officers and asking to leave, but they were commanded to get back. Baude said officers pepper-sprayed him, zip-tied his hands and detained him for 14 hours.

Baude had alleged violations of his First, Fourth and 14th Amendment rights, as well as a conspiracy to violate those rights.

The 8th Circuit panel said Baude’s allegations and video of the encounter “give rise to a question of fact related to the reasonableness of the seizure.”

“Here, Baude alleges, and the video included with the pleadings appears to confirm, that the group of people involved in the mass arrest not only included a few people noisily proclaiming their constitutional right to assemble but others who were generally gawking and milling about, others on bikes riding through the area, some people sitting on the street and on the sidewalk, and even a person pushing a baby in a stroller. As noted by the district court, there are outstanding factual questions about who heard which declarations related to unlawful assembly and dispersal orders (if any) and whether the arrestees had the requisite intent to commit any of the alleged crimes.”

The appeals court said police aren’t entitled to qualified immunity by alleging that the unlawful acts of a small group justify arrest of the larger group.

Baude is represented by Javad Khazaeli of Khazaeli Wyrsch. He told Law360 that there are 14 individual lawsuits and a class action against police based on their actions during the protest.

“We would hope, at some point, that the city of St. Louis, after being repeatedly told by district court judges and 8th Circuit appellate judges that what their officers did was wrong, to finally hold somebody accountable and stop using legal exceptions to avoid holding people responsible,” he said.

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