Lawsuit: West Des Moines officer used illegal chokehold, discriminated against nonbinary person

A lawsuit filed against the West Des Moines Police Department is an example of how people who do not fit traditional gender norms can be targeted and mistreated by law enforcement, a spokesperson for an Iowa LGBTQ rights group said.

Amber Dawn Terrell, 41, of West Des Moines was arrested on Sept. 29, 2020, on a charge of public exposure after exposing their breasts. Terrell is nonbinary — they do not identify as exclusively male or female — and uses they/them pronouns.

In the lawsuit filed Sept. 19 in Polk County Court, Terrell's attorneys Adam Witosky and Christopher Stewart say Terrell’s Fourth and 14th Amendment rights were violated because Terrell was allegedly targeted for being nonbinary. Terrell was also allegedly placed in a banned chokehold by the arresting officer, according to the lawsuit.

More:Plastic surgeon sued for sexual misconduct settles Medicare/Medicaid fraud claims for $800K

Terrell’s attorneys and West Des Moines Police spokesperson Sgt. Jason Heintz declined to comment on the lawsuit.

Why was Amber Dawn Terrell arrested?

At 10:15 a.m. Sept. 29, 2020, Terrell got coffee at a gas station at the intersection of 50th Street and EP True Parkway and walked toward a "friend’s apartment when they stopped briefly to bird watch, putting their hand in the air to block the sun," according to the lawsuit. "As Dawn was doing so, West Des Moines Police Officer (Lee) Gebhardt confronted them. Officer Gebhardt stated reason for approaching Dawn was seeing them with a hand in the air."

“While confronting Dawn, Officer Gebhardt engaged in harassing questioning about Dawn's gender, refusing to refer to Dawn by their pronouns or name,” Witosky and Stewart wrote.

Terrell got Gebhardt's business card at a nearby gas station. After leaving the gas station, while Terrell walked toward their friend’s house, Terrell lifted their shirt to wipe sweat from their face, according to the lawsuit. In a criminal complaint, Gebhardt wrote that Terrell took "her shirt off in public to reveal her breasts in the middle of a parking lot."

Gebhardt then stopped his patrol vehicle and exited with his handcuffs out, according to the lawsuit. Terrell fled, and was arrested at 2 p.m. that same day when Gebhardt saw them walking through a parking lot in West Des Moines.

More:'Iowa Mama Bear' charged with harassing, making false claims against former business partner

Iowa law allows a person to expose their breasts in public, regardless of gender, Polk County Attorney John Sarcone said in a statement. West Des Moines City code prohibits people from exposing pubic hair, male or female genitalia and “a woman’s nipple, the areola thereof, or full breast” in public. There is an exception for breastfeeding women.

Keenan Crow, the director of policy at West Des Moines-based LGBTQ rights group One Iowa, said it was clear that Gebhardt harassed Terrell for “Walking while trans.”

“In reviewing the details of the case, it’s clear that this story is not about any sort of public indecency, as the actions in question were brief, unintentional, and would generally be considered inoffensive by the average observer,” Crow said in a statement. “When the officer couldn’t find a legitimate excuse for their harassment and violent actions, they tried to come up with an excuse, any excuse, to justify their clearly biased and inappropriate behavior.”

Criminal complaints filed by Gebhardt listed Terrell’s gender as female and used female pronouns.

“Officer Gebhardt violated Dawn’s clearly established constitutional rights by targeting them for selective enforcement of a criminal statute based on their sex-based classification and gender non-conformity,” Witosky and Stewart wrote in the suit. “Officer Gebhardt knew Dawn was nonbinary and did not identify as a woman.”

About a month before this encounter with Gebhardt, Terrell was arrested by West Des Moines Police Department officers on a charge of smoking marijuana in a car in a Walgreens parking lot. Because of these prior interactions with Terrell, officers knew they were nonbinary, according to the lawsuit.

More:Des Moines man charged with 2021 death of 4-year-old boy

Lesbian and bisexual women are four times more likely to be arrested than straight women, according to the non-profit Prison Policy Initiative. Gay and bisexual men are 1.35 times as likely to be arrested as straight men, according to the group.

“Too often, police target and investigate transgender people, simply because of their dress or appearance,” said Rita Bettis Austen, ACLU of Iowa legal director, in a statement.

Des Moines and Ankeny City codes contain public exposure laws nearly identical to that of West Des Moines. Des Moines Police Department spokesperson Sgt. Paul Parizek said the department trains its officers on the topic, with the help of One Iowa. In Des Moines, officers are directed to “exercise their authority to act fair and impartial” to all people, according to the policy.

“In short, our guidance to our employees is to exercise a judicious amount of common sense, respect, and compassion as they work to find appropriate solutions when they are called upon to help people,” Parizek said.

Heintz, the West Des Moines Police Department spokesperson, said the department does not have a formal policy for how it enforces public exposure laws for nonbinary or transgender people.

Public exposure language in West Des Moines’ city code is “outdated and unnecessary,” Crow said. Governments should create laws that are equally enforced "regardless of sex," Crow said. One Iowa trained West Des Moines Police Department officers “several years ago” in how to interact with LGBTQ people respectfully and avoid bias and stereotypes, Crow said.

“The actions of the officer are in direct opposition to the principals covered in the trainings,” Crow said.

Lawsuit: Officer used banned chokehold

When Terrell was arrested, officers found a backpack with four syringes filled with methamphetamine and a plastic pipe with .7 gram of marijuana, according to a criminal complaint. The public exposure charge and those drug charges were dismissed in February 2021 when Terrell pleaded guilty to possessing a meth pipe.

Terrell was arrested four months and four days after George Floyd died while Minneapolis Police Officer Derek Chauvin kneeled on his neck. Social justice protests across Iowa in the wake of Floyd’s death led the Iowa State Legislature to pass a law that banned police officers from using chokeholds except when a person “has used or threatened to use deadly force in committing a felony” or when an officer “believes the person would use deadly force against any person unless immediately apprehended.” The law took effect on July 1, 2020.

When Gebhardt saw Terrell in the parking lot he tried to tackle them, and pushed their face into the concrete, according to the lawsuit. As another officer restrained Terrell and Terrell was on their knees, Gebhardt put Terrell in a chokehold, according to the lawsuit.

More:DMPS settles lawsuit over sexual misconduct by JROTC instructor for $250,000

“The acts and/or omissions of City of West Des Moines … regarding their officers amounted to deliberate indifference to the rights and safety of citizens – including Dawn,” Witosky and Stewart wrote.

Philip Joens covers public safety and RAGBRAI for the Des Moines Register. He can be reached at 515-443-3347 at pjoens@registermedia.com or on Twitter @Philip_Joens.

This article originally appeared on Des Moines Register: Lawsuit alleges West Des Moines officer 'targeted' nonbinary person