City of Des Moines turns to US Supreme Court over ruling in George Floyd protest lawsuit

Des Moines police have suffered a string of losses in court over their actions during the George Floyd protests in 2020. Now the city is asking the highest court in the country to weigh in.

Attorneys for Des Moines have filed a petition asking the U.S. Supreme Court to reverse a recent appellate court decision denying an officer immunity from liability. The case in question is a lawsuit brought by photographer Mark Nieters, who was pepper-sprayed, tackled and arrested while covering the protests near the Iowa Capitol on June 2, 2020.

Nieters accused the city and police officer Brandon Holtan of unlawful seizure, excessive force and retaliation. A federal district judge ruled for the city in 2022, finding Holtan had "arguable probable cause" to arrest Nieters. The court found Holtan was shielded by qualified immunity, a doctrine protecting government officials, including police, from liability unless the unlawfulness of their actions was "clearly established" at the time.

But the 8th U.S. Circuit Court of Appeals, in a 2-1 decision, reversed that ruling in October, finding that if the case went to trial, a jury could conclude Holtan acted unreasonably in several respects, and that it was "clearly established" police could not tackle a "non-resisting suspect" or arrest someone not part of a group believed to have committed crimes.

City asks SCOTUS to weigh in

The city has received several unfavorable court rulings and one jury verdict in lawsuits arising from the Floyd protests. This time, though, it's going to the top.

Filed Feb. 7, the city's petition asks the Supreme Court to overrule the 8th Circuit decision. The petition, filed by city Senior Litigator John Haraldson, argues the appellate court "eviscerated probable cause standards by placing an impossible burden on law enforcement," and disregarded the Supreme Court's repeated holding that, for qualified immunity questions, "'clearly established' must be demonstrated with a high level of specificity."

The city argues that based on what Holtan knew at the time, he had probable cause to arrest Nieters for failing to disperse despite earlier orders at the Capitol, and that even if he lacked sufficient justification, the appellate court applied far too broad a test of whether Holtan's actions violated clearly established law.

"It appears that this court, every two to three years, has to remind the lower courts about the doctrine of qualified immunity," the petition says. "Now is the time to do that again."

Nieters' attorney: City should be looking forward

Attorney Gina Messamer, who is representing Nieters and a number of other plaintiffs in lawsuits against the city, told the Des Moines Register the city is doubling down on a losing argument.

"I'm surprised Des Moines continues to grasp at straws to avoid accountability," she said in an email. "There’s no shame in admitting an officer made a mistake, taking responsibility, and doing better next time."

Will SCOTUS agree to hear case?

Filing what's known as a petition for certiorari does not guarantee the Supreme Court will accept it. The high court agrees to hear only a tiny fraction ― only about 1% ― of the thousands of cases appealed to it each year.

Generally the court chooses to focus on cases involving novel or consequential legal issues, or where clarity is needed to resolve disputes between different federal circuit courts. In its petition, the city suggests that such a split exists, and it would be "timely" for the court to give guidance on how police should respond to protests that grow violent "in this era of civil unrest."

Nieters will have the chance to file his own brief arguing why the Supreme Court should not take up the case before the justices decide whether to grant certiorari. The deadline for that response, according to the court's docket, is March 11.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Des Moines appeals to Supreme Court in George Floyd protest lawsuit