A Des Moines, Iowa police officer who arrested a photo-journalist covering protests following the death of George Floyd recently lost his bid to have the Iowa Court of Appeals uphold a trial court's grant of qualified immunity. The appellate court found that the facts surrounding the arrest didn't justify that defense.
For several nights following the death of George Floyd, protestors marched the streets of Des Moines, Iowa. On the fourth night of protests, Mark Nieters attended an event at the Iowa Capitol Building to take photographs. Nieters wore a painter's mask and light-colored clothing. He also wore a blue helmet, which he believed was the international norm for journalists. Though he had press credentials, he did not have them displayed. Officer Brandon Holtan was at the same protest as part of the Special Tactics and Response Unit.
After the organized protest ended around 8:15 p.m., Nieters followed a group of protestors who marched downtown and then returned to the Capitol around 10:45 p.m. City officials contended that this group was violent and caused property damage, which led to law enforcement reading five dispersal orders at the Capitol between 11:30 p.m. and 11:43 p.m. After officers read the fifth order, they began arresting protestors who failed to disperse. Nieters denied hearing any dispersal orders.
While pursuing a group of protestors, Officer Holtan saw Nieters and believed Nieters was a rioter. Officer Holtan, believing Nieters intended to flee, "reached around Nieters, grabbed him around the chest, sprayed him with [pepper] spray, and took him to the ground." According to Officer Holtan, these events happened "almost simultaneously." Nieters informed Officer Holtan he was a member of the press. Officer Holtan then retrieved Nieters's press credentials out of his pocket. Because Officer Holtan did not want to be perceived as giving a journalist special treatment, he proceeded with Nieters's arrest. Nieters was charged with one count of failure to disperse, but the charge was later dropped. Nieters sued Officer Holtan, Chief of Police Dana Wingert, and the City of Des Moines for illegal seizure and excessive force. The district court granted Officer Holtan summary judgment based on qualified immunity, holding: (1) Officer Holtan had at least arguable probable cause to believe Nieters violated the law; and (2) Officer Holtan's use of force was objectively reasonable.
In reversing the trial court, the appellate court first ruled that "the record demonstrates there are genuine issues of material fact that preclude summary judgment on the unlawful seizure claim." To violate the Iowa statute for failure to disperse, the individual must (1) be a participant in or in the immediate vicinity of a riot or unlawful assembly; (2) be within hearing distance of a command to disperse; and (3) refuse to disperse. As the appellate court noted, Nieters was at least fifty to seventy-five feet away from the group. In staying apart from the group of protestors he was photographing, Nieters disassociated from the group. 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.
And the appellate court noted that even if it 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. 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. "The continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause."
In reviewing the excessive force claim, the appellate court noted that an officer's "use of force against a suspect who was not threatening and not resisting may be unlawful." The appellate court noted that Officer Holtan argued his use of force was not excessive because he viewed Nieters turning away as an attempt to flee. As the court noted, the problem was with the timing of Officer Holtan's actions. He testified he "almost simultaneously" gave Nieters the order to get on the ground, while charging and pepper-spraying him. According to the court, "Nieters was a nonviolent alleged misdemeanant who was not given time to comply with the order to get on the ground prior to Officer Holtan's use of force."
The appellate court's ruling reflects two simple rules. Journalists who cover protests aren't criminals. And police who arrest them likely don't have immunity.