Appeals court: no immunity for DMPD officer who pepper-sprayed woman at protest
Des Moines police have taken another loss in a lawsuit alleging misconduct by officers during protests in 2020.
Essence Welch of Des Moines sued the city in June 2020, just weeks after officers used pepper spray on her during a protest outside the historic Polk County Courthouse downtown on May 30. In her suit — the first of several over police conduct at the protests ― she alleged that Officer Daniel Dempsey approached her as she stood to one side of a line of officers, recording the scene with her phone, and without warning sprayed her in the face and across her body.
The city argued that Dempsey was justified in assaulting Welch because the courthouse had been the scene of vandalism earlier in the evening, but U.S. District Judge Stephanie Rose ruled in November 2021 that the case could proceed to trial. Rose noted that Dempsey, a member of the department's Metro STAR tactical team, sprayed Welch within 15 seconds of arriving at the scene.
Rose wrote that video from the scene does not back up Dempsey's arguments he was motivated by officer safety because people were throwing objects at officers. She also pointed out that Dempsey was the only officer on scene to deploy pepper spray and in fact had to walk around a group of other officers to reach Welch.
In addition, she noted that in the few seconds after he disembarked from an armored transport, Dempsey could be seen on video firing a "test spray" before moving out to engage Welch.
The city appealed Rose's decision on the grounds that Dempsey should have been granted qualified immunity. Government officials accused of violating someone's constitutional rights are entitled to qualified immunity, even if the person's rights were violated, unless the plaintiff can point to previous court rulings that would put the official on notice of the right in question.
On Thursday, the Eighth U.S. Circuit Court of Appeals upheld Rose's ruling.
"Dempsey did not, during the twelve seconds that he was on the scene, develop arguable probable cause that Welch was rioting or engaged in an unlawful assembly under Iowa law," Judge Steven Colloton wrote. "Dempsey’s arguments thus do not undermine the district court’s conclusion that Welch’s right to be free from a retaliatory use of force was clearly established at the time of the incident."
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Because the appellate court only has jurisdiction to decide questions of qualified immunity at this stage in the case, the court declined to take up Dempsey's argument that the judge wrongly discounted his testimony about officer safety and that he was not motivated by retaliation against Welch's First Amendment-protected protest.
"Of course, Dempsey may advance his position regarding motivation before a jury, and in post-trial motions or a post-judgment appeal as warranted, but we lack jurisdiction to conduct the suggested review," Colloton wrote.
City officials did not respond to messages Thursday seeking comment. Attorney Gina Messamer, representing Welch, said her client is looking forward to finally taking her case to trial.
"It is critically important to our society that people are able to participate in protests and report on what is happening in their communities, without fear of retaliation from the government," Messamer said in an email. "It has taken over two years to get this far, and Ms. Welch is excited to present her case to a jury. She is confident a jury will agree it was not okay for the officer to pepper-spray her in the face, without warning, when she was simply live-streaming local events."
Welch's lawsuit is one of several alleging Des Moines police misconduct during the 2020 protests following the death of George Floyd in Minneapolis police custody, and it is the first to be considered by the appellate court. In another case, brought by a photographer who was tackled by police, the district court ruled in the city's favor; that decision also has been appealed. Other cases are still pending.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris
This article originally appeared on Des Moines Register: Court rules Des Moines police not immune in Floyd protest suit
