Jury finds Des Moines police officer who pepper-sprayed 2020 protester violated her rights
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A former Des Moines police officer is liable for violating a protester's rights during the 2020 George Floyd protests — although it's not clear how the jury thinks he did so.
Essence Welch sued then-Officer Daniel Dempsey for pepper-spraying her during a protest on the night of May 30, 2020. After overcoming several pretrial hurdles, including a federal appellate ruling confirming the officer was not entitled to immunity for his actions, the more-than 3-year-old lawsuit went to trial this week on two claims: battery and First Amendment retaliation.
On Wednesday, the jury returned a split verdict. Dempsey, who no longer works as a police officer, was found not liable for battery against Welch. But the jury did find he had retaliated against her for exercising her First Amendment rights.
Welch had asked the jury for an award of $250,000 from the city, including $200,000 in punitive damages. The jury instead awarded her $5,000 in compensation and $36,000 in punitive damages, for a total of $41,000.
What are the two sides saying?
Gina Messamer, Welch's attorney, said she found the split verdict surprising, but that she and Welch were nonetheless pleased with the outcome.
"We were so glad to finally be able to show a jury how inappropriate the officer’s actions were," she said in an email. "The jury’s punitive damage award confirms that violating the constitution is not acceptable in our community. While more money would always be nice, at the end of the day this was about accountability and we absolutely got that."
City Manager Scott Sanders said in a statement that Dempsey and other officers were responding to unprecedented demonstrations that had included an attempt to start a fire at the county's historic courthouse.
"The city appreciates and respects the efforts of the jury to consider the case, but believes the actions of law enforcement that evening, including former Officer Dempsey, did not intentionally violate the plaintiff’s First Amendment rights given the circumstances they faced during this unique moment in the city’s history,” he said.
What happened to Welch during protest?
Welch was the first of numerous protestors to file claims alleging misconduct by Des Moines police during the protests in May and June 2020.
Welch and her sister, Destani, testified they took part in a protest march through downtown that eventually came to the intersection of Cherry Street and Sixth Avenue. Other protestors had broken windows at the nearby historic courthouse, and Des Moines police in riot gear were sent to prevent further damage.
In videos shown to the jury, the group shouts chants and slogans at the line of officers, then begins to move on. Welch, lingering behind, was live-streaming the scene when Dempsey, who had disembarked from a police truck less than 15 seconds earlier, walked around another cluster of officers and pepper-sprayed her in the face. She was not arrested or charged with any crimes.
The experience deepened the distrust and frustration toward police that motivated both sisters to attend the protest in the first place, Destani Welch testified in the trial.
"It's like, you can be doing noting and still get some kind of consequence," she said. "It was just confirming what we already knew ... there's structure, there's power, and you can't do anything about it."
City argues officer was justified
The city's attorney, John Haraldson, conceded to the jury that Welch hadn't committed any crimes. Nonetheless, he argued, Dempsey's actions were reasonable given what he knew when he arrived at the scene.
"He knew there had been an attack on the courthouse, that there'd been vandalism. He knew officers were substantially outnumbered," Haraldson told the jurors. "The closest person to the... courthouse (when he arrived) was Ms. Welch."
Haraldson said Welch shared the blame for the encounter.
"She was living through her phone, not her eyes," he said. "If she'd moved with the crowd, she would never have been pepper sprayed. ... Ms. Welch was a victim of her own lack of self-awareness."
Messamer, in her opening statement, called Dempsey a "bull in a china shop" whose actions inflamed the situation and made everyone present less safe.
"He let his temper get the best of him," she said. "He didn't talk to anybody, he didn't find out what was going on, he just went up to where Ms. Welch was standing and he attacked her."
More protest lawsuits still pending
Welch's is only the first of several lawsuits stemming from the 2020 protests that could yet go to trial.
Denver Foote, recently a candidate for Des Moines mayor, has sued Des Moines police for wrongly arresting them as they were walking downtown near protests. A suit by photographer Ted Nieters is also headed to trial after an appellate court ruled in October the officers who arrested him should not receive immunity.
Messamer also is representing more than a dozen clients in another lawsuit that a judge has said involves "inexplicable" examples of police violence during the protests in the Court Avenue district.
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: Des Moines police violated George Floyd protestor's rights, jury finds
