ST. LOUIS • Lawyers for St. Louis police are asking a federal judge to lift restrictions on their ability to declare protests “unlawful” and use chemical agents including pepper spray to break up those protests.
The motion was filed Friday in U.S. District Court in a 2017 case in which the ACLU of Missouri sued on behalf of protesters. They claimed that police used force, including pepper spray, without warning and without provocation during protests after the 2017 acquittal of former St. Louis police Officer Jason Stockley for the fatal shooting of Anthony Lamar Smith in 2011.
U.S. District Judge Catherine Perry issued in November 2017 the preliminary injunction that restricted the ability of officers to declare protests unlawful, order protesters to disperse and use chemical agents to enforce those orders.
In the 39-page motion filed Friday, city lawyers argue that the ACLU “inveigled the Court into improvident intrusion into police practices in the City of St. Louis” by “telescoping evidence of select portions of a connected series of mass demonstrations in the City in the fall of 2017.”
The motion says that videos collected from police officers, the city’s “Real Time Crime Center,” the plaintiffs in the case and “recognized media sources,” as well as testimony from officers and police officials, contradict claims by protesters.
The motion says “a comprehensive review of the entire video record demonstrates that the St. Louis police on the whole responded to extremely difficult challenges with disciplined effectiveness. St. Louisans did not experience the violence and terror of full-scale riots, as did Ferguson or Baltimore in similar situations. For this the community (including plaintiffs, though they may not realize it) owes a debt of gratitude to the vast majority of St. Louis police officers.”
The motion says Perry’s order could weaken the city’s legal position in civil lawsuits filed by protesters and others over police activity. Those 22 civil lawsuits also show that there are remedies for alleged misconduct other than a federal judge’s intervention into city affairs, city lawyers say.
They cite the lack of any recent mass protests that have triggered police to declare an “unlawful assembly” or use chemical agents as the third reason Perry should dissolve her preliminary injunction, attaching a list of all protests since 2012 and saying that police use of force has been rare.
The filing said that the ACLU was trying to substitute a federal court for “for the democratically elected representatives of the people of the City of St. Louis,” a notion it says has been “repeatedly rejected” by the U.S. Supreme Court in other cases.
The motion, like police witnesses in hearings in 2017, denies police misbehavior. It says that pepper spray was not routinely used and that police took action only to clear streets, rescue officers caught in crowds or defend St. Louis Mayor Lyda Krewson’s house during one protest.
“We’ll be responding, but we see the case differently, of course,” said Tony Rothert, legal director of the ACLU of Missouri. He said some type of motion trying to dismiss a case was common when both sides were nearing the end of exchanging evidence.
Perry ordered the ACLU and the city into mediation, but Rothert said there had not yet been any resolution.
Perry’s order says police can’t declare an “unlawful assembly” and enforce it against those “engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence.”
She also ruled that police can’t order protesters to disperse without giving them time to do so and a way to leave the area, as well as specific information about what area they must vacate and what chemical police will use.
And she banned the use of pepper spray and other chemical agents against “expressive, non-violent activity” without probable cause to make an arrest and without providing “clear and unambiguous warnings” and an opportunity to heed those warnings.
Perry, acknowledging that only some evidence and testimony had been presented, criticized police use of pepper spray. She said police had sometimes improperly declared an “unlawful assembly” and had given protesters and others unreasonable and vague dispersal orders.
She also said a police “kettle” arrest on Sept. 17, 2017, at the intersection of Washington Avenue and Tucker Boulevard “cannot meet constitutional standards.”
Some witnesses for the plaintiffs testified that they were not protesting but were captured in the kettle, pepper-sprayed and arrested. Former Post-Dispatch reporter Mike Faulk was among those arrested, but two colleagues escaped by entering nearby buildings.
The city’s motion acknowledges in a footnote that four police officers were indicted in federal court last year and accused of beating an undercover colleague before the kettle arrests or covering it up, but says the “great majority” of officers exhibited professional behavior. The officers have pleaded not guilty to the charges.
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