Photographer arrested covering Floyd protests can sue DM police, appeals court rules
A photographer arrested while covering the 2020 George Floyd protests will have a chance to present his lawsuit to a jury after a federal appellate court overturned a decision granting Des Moines police immunity for his arrest.
Ted Nieters, a freelance photographer, was pepper-sprayed, tackled and arrested while taking pictures of a group of protestors on June 2, 2020, near the Iowa Capitol. He was one of several journalists arrested while covering the protests, and was charged with failure to disperse, although that charge was later dropped.
Nieters sued the police department and the arresting officer, Brandon Holtan, claiming unlawful seizure, excessive force and retaliation. But in July 2022, a federal district court judge ruled for the city, finding that Holtan had "arguable probable cause" to make the arrest because Nieters was in the proximity of a group that had been previously told to disperse. The judge found Holtan and the city were entitled to qualified immunity, a doctrine protecting officials from liability unless the unlawfulness of their actions was "clearly established" at the time.
Now the case has new life. A three-judge panel of the Eighth U.S. Circuit Court of Appeals ruled Wednesday, with one partial dissent, that Holtan does not have immunity on Nieter's excessive force and false arrest claims, putting the case back on track for a potential trial.
Nieters referred questions to his attorney, Gina Messamer, who said Nieter's case is about protecting the First Amendment right to gather and publish the news.
"We very much appreciate that the Court of Appeals looked at both sides of the story, and didn’t just rubber stamp the officer’s actions," she said in an email. "The freedom of the press is crucial to our democracy and Ted Nieters looks forward to defending that freedom at trial."
City Manager Scott Sanders said in a statement the city will consider seeking further review of the decision.
“The city is disappointed with the 8th Circuit’s split decision today and believes that the dissent is correct in its assertion that the majority misapplied the law in reversing part of the district court’s decision," Sanders said. "While the city appreciates the court’s affirmance of the dismissal of the plaintiff’s First Amendment claim, we will be exploring all options to reach an appropriate result in addressing this split decision.”
Did officer have cause to arrest for failure to disperse?
According to court filings, Nieters attended and photographed a rally outside the Capitol on the evening of June 2, followed the demonstrators downtown, and followed a group back to the Capitol grounds shortly before 11 p.m. Police say the group he was photographing became violent and damaged property, and issued several orders to disperse.
Nieters says he did not hear any dispersal orders, but left the Capitol grounds again sometime after 11 to follow another group of protestors. At about 11:45, police approached that group, and Nieters, about five blocks from the Capitol. Believing Nieters was part of the group, Holtan reportedly ran at him, telling him to get on the ground. Nieters raised his hands but turned his body away before Holtan hit him, and Holtan, believing Nieters was about to flee, sprayed him with pepper spray and tackled him to the ground.
Although Nieters showed Holtan a press identification, Holtan "did not want to be perceived as giving a journalist special treatment" and placed him under arrest.
Decision denies qualified immunity for officer
Wednesday's decision found several places where a jury could find Holtan erred.
At the time he was attacked, Nieters was at least 50 feet away from demonstrators, standing outside a hotel with two cameras, and unlike others was not trying to flee from police, Judge Stephen Grasz wrote. Nor was there any evidence that he heard any of the dispersal orders at the Capitol.
"Furthermore, as Nieters was standing by himself five blocks away from the Capitol, a jury could conclude that Nieters did in fact disperse," Grasz wrote.
Even if the initial decision to arrest Nieters might have been based on a reasonable mistake, the court held, once Nieters showed his press ID, "It certainly was not an 'objectively reasonable' mistake to believe probable cause existed for the arrest."
A jury also could find Holtan's use of force to be unreasonable, the court found, pointing to Holtan's statement that his order to get down, Nieters' turn away, and his use of pepper spray happened "almost simultaneously."
As for qualified immunity, the court found it was clearly established that knocking a "non-resisting suspect" to the ground, or arresting people not part of the group believed to have committed crimes, was unconstitutional.
Where do other Floyd protest suits stand?
One of the judges, Raymond Gruender, partially dissented, writing he would have upheld the finding of qualified immunity for Nieters' unlawful arrest claim. But he joined in the rest of the opinion, including upholding the district court's order dismissing Nieters' claims of First Amendment retaliation. While Nieters offered evidence he was wrongly arrested, the judges found, he could not show evidence that Holtan's decision to tackle and arrest him was in retaliation for protected actions.
The reversal adds to a string of losses for Des Moines police in lawsuits arising from the Floyd protests. In at least three other suits, courts have allowed at least some claims against the city to proceed toward trial, although none have yet gone before a jury.
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 denied qualified immunity in Floyd protest lawsuit
