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Appeals court sides with journalists tear-gassed in Ferguson

On the fifth day of the Ferguson protests in August 2014, St. Charles County sent their SWAT team in armored military vehicles to help block off West Florissant Avenue, which was considered ground zero for the protests. 

Ash-har Quraishi, Marla Cichowski and Sam Winslade — reporters who were working for Al Jazeera America news network at the time — did what other TV crews were doing. They parked their SUV on a side street and set up their camera equipment.

No protestors were nearby. They were on a residential street a block away from the police. 

A minute after they began recording, St. Charles SWAT began shooting rubber bullets at them. Video captured Winslade yelling, “this is the media.” A St. Charles County deputy fired tear gas that landed right in front of them. The journalists scattered, and when they tried to return for their equipment, they faced another round of tear gas. 

The three journalists filed a lawsuit in 2016 against St. Charles County and the deputy, Michael Anderson, who is currently a detective with the St. Charles County Police Department. 

Anderson has twice attempted to have the case thrown out on the grounds of qualified immunity, which shields law enforcement officers from civil damages liability if their conduct does not violate established statutory or constitutional rights.

Last week, the U.S. Court of Appeals for the Eighth Circuit ruled — just like the federal district judge — that Anderson does not have qualified immunity and will have to defend himself before a jury, which is the next step in the case.

“Every court that’s looked at this has realized that the officer’s description of what happened simply cannot be squared with scores of videos that were recorded at the time,” said Bernard J. Rhodes, the reporters’ attorney. “We think our chances are very good that the jury will look at the video and say, ‘Well, what the police officers that happened simply did not occur.’”

‘A constitutional violation’

U.S. Circuit Judge Duane Benton states several time in his ruling that the officer’s version of events doesn’t match the evidence from that night on Aug. 13, 2014 — which includes footage from KSDK-TV and another camera crew set up nearby. 

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also said he thought there was an imminent threat to his safety because he saw “projectiles” launched from an area of the bright lights.

The videos don’t support any of Anderson’s claim, Benton wrote.

“Before the SWAT Team arrived, the reporters counter that their location was a calm scene,” Benton wrote. “The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.” 

To receive qualified immunity, the bar for Anderson was actually pretty low. 

“If Anderson had a ‘mistaken but objectively reasonable belief’ that the reporters ‘had committed a criminal offense,’ they lose,” Benton explained.

But Benton said the facts showed “a peaceful scene interrupted by rubber bullets and tear-gas.”

He wrote that using arrest that lacks probable cause to interfere with “First Amendment activity is a constitutional violation.”

The St. Charles County Regional SWAT Team leaves the command center in its armored vehicle on Aug. 13, 2014.

Benton did roll back the district judge’s previous ruling that Anderson does not have qualified immunity for the Fourth Amendment, where the officer argued that the tear-gassing was not a seizure.

The district court should have given Anderson immunity for this claim, Benton said, because there isn’t “clearly established” precedent that his acts were a seizure. 

A county spokeswoman said in an email to The Independent, St. Charles County government is reviewing the court’s decision, but is pleased that the court agreed that the police officer was entitled to qualified immunity on plaintiffs’ Fourth Amendment claim.” 

‘We get paid for this!’

During Ferguson protests, officers arrest a woman after she told her son to call CNN. While she was lying on the ground, a police GoPro video captured one of the SWAT team members saying to her, “You should have been more conscious about that before you ran your mouth.”

The original lawsuit went beyond describing the journalists’ isolated encounter with the SWAT team. It documents other moments earlier in the day, where officers attempted to silence those videotaping events or those who called for journalists to document police’s conduct. 

Antonio French

It notes St. Charles SWAT members arresting then-St. Louis Alderman Antonio French because he was inside his parked car near West Florissant Avenue, “holding up his cell phone in an obvious attempt to videotape the police response,” according to the SWAT team’s incident report.

Through a Sunshine Law request, the reporters’ legal team was able to get some — but not all — of the footage from a SWAT medic who was wearing a GoPro camera all evening. 

That footage showed the St. Charles County Regional SWAT Team arresting a woman who yelled for her son to call CNN.

“The woman was told by a SWAT Team member, ‘You should have been more conscious about that before you ran your mouth,’” the suit states.

The footage also showed SWAT members choking, beating and shooting rubber bullets at a single unarmed Black man who told the officers he was walking home from work and wasn’t a protestor.

According to the lawsuit, the medic is heard in the video saying, “They shot the s*** out of that dude.”

A moment later, officers shot rubber bullets at a KSDK reporter who was filming the beating.

The medic’s footage also recorded David Todd, who oversaw the SWAT team at the time, egging on the team’s actions, saying, “Goddammit, we get paid for this!”

Todd later became the chief of the newly formed St. Charles County Police Department in December 2014, until he retired a year ago. 

Attorney Javad Khazaeli’s firm is currently representing a number of people who claim their First Amendment rights were violated by police during recent protests in St. Louis — including several journalists.

Some of the lawsuits occurred the same night in September 2017 when a Black undercover cop, Luther Hall, was beaten by St. Louis Metropolitan Police officers, four of whom were indicted on federal charges related to the arrest. 

The St. Louis Post-Dispatch reported Thursday that the city would settle for $5 million in Hall’s case. This news and Benton’s ruling were positive developments for Khazaeli’s clients, he said. 

“It lays to bed every argument that the city has been making,” he said, “that their officers should be immune from prosecution because they were just doing what their bosses told them to do.” 

This article by Rebecca Rivas is published by permission of The Missouri Independent.

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