Judge Restricts How St. Louis Police Can Respond to Protesters

by | November 16, 2017

By Robert Patrick

A federal judge issued on Wednesday wide-ranging restrictions on the ability of St. Louis police to declare protests "unlawful" and use chemical agents against protesters.

U.S. District Judge Catherine Perry's order says that police can't declare an "unlawful assembly" and enforce it against those "engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence."

Police also can't use that unlawful assembly order or threaten the use of chemical agents to punish protesters for exercising their rights, she wrote.

Perry barred the use of pepper spray, mace and other chemical agents against "expressive, non-violent activity" without probable cause to make an arrest and without providing "clear and unambiguous warnings" and an opportunity to heed those warnings.

Police cannot give dispersal orders without giving people specifics about what area they must leave, what chemical will be used, time enough to leave and allowing a way to leave that area, she wrote.

She also immediately ordered both sides to mediation, something Tony Rothert, legal director of the ACLU of Missouri, called unusual at this stage in a case. Rothert said that the ACLU was open to working something out with city officials.

Asked for comment about the ruling, a mayoral spokesman said in an email that the city would "comply with the order."

Rep. William Lacy Clay, D-St. Louis, asked Eastern District of Missouri U.S. Attorney Jeffery Jenson on Wednesday to launch a federal investigation into what Clay called "alleged unconstitutional practices by St. Louis area local law enforcement agencies in response to protests" after Stockley's acquittal.

Clay called St. Louis "the poster child for the need of federal intervention to address decades of bad police relations that reinforce the decline and erode the trust of police-community relations."

In a 49-page memorandum accompanying the order, Perry said that based on the evidence presented so far, the ACLU was likely to succeed in its underlying lawsuit over police practices. She faulted police use of mace against nonviolent protesters and those recording police activity, and said police had improperly declared an "unlawful assembly" on some occasions and then gave protesters and others unreasonable and vague dispersal orders.

She said a controversial police "kettle" on Sept. 17 at the intersection of Washington Avenue and Tucker Boulevard "cannot meet constitutional standards." It was conducted without evidence of "force or violence to officers or property in this mixed commercial and residential area." The scene was "calm," she wrote based on witnesses and videos, with no reported violence for hours before the kettle. Some protesters were "voicing their displeasure with police," but others in the intersection were bystanders.

She said some of the ACLU's witnesses "reasonably believed" that any dispersal order didn't apply to them because of its vagueness.

At hearings last month, witnesses including an Air Force officer, his wife, and others said they were not protesting but were caught up by police on Sept. 17, pepper-sprayed and arrested. Post-Dispatch reporter Mike Faulk was also arrested, but two other reporters were able to escape advancing police lines by entering nearby buildings.

Rothert said that kettles carried "too high a chance for error" and that under Perry's order, "what happened on Sept. 17 would not be allowed to happen again."

Tony Rice, who was arrested in the kettle and testified during the hearings, said he was "delighted and elated" when he heard about Perry's order. He said "the one thing I was really happy about" was that "Judge Perry did believe the bystanders and the known protesters," as well as the video evidence.

In a statement, Rothert called the judge's decision "a win for the people of St. Louis and for the First Amendment."

"By requiring police to adopt these common-sense solutions, we can protect rights of the people to express their concerns about the troubling racial disparities in policing," the statement said.

In a telephone interview, Rothert said that Perry's order was more narrow than what the ACLU sought, but "appropriately so." Rothert said she restricted it to those engaged in "expressive activity," but he believed it would also cover reporters and those simply watching the protests but not engaged in them.

That suit was filed by the ACLU after complaints over police behavior during protests that followed the acquittal in September of former St. Louis police Officer Jason Stockley for the fatal shooting of Anthony Lamar Smith in 2011.

Protesters say police beat and pepper-sprayed them without warning and without provocation.

In hearings last month, police and officials denied any pattern of police misbehavior and said they needed to be able to clear streets and send protesters home in situations such as that on Sept. 15, when some protesters damaged St. Louis Mayor Lyda Krewson's house. They also said that Stockley protests were treated no differently than any others.

In court filings and the hearings, the ACLU claimed any police officer could declare an "unlawful assembly" when they spotted someone violating any law, even if protesters were nonviolent and simply "congregating on sidewalks or streets closed by police for protest activity."

Police officials testified that an incident commander would typically make that decision, but acknowledged that it was within individual officers' discretion.

That police practice gives no notice to citizens of "what conduct is unlawful, and it permits officers to arbitrarily declare 'there's no more assembling,'" which "impermissibly" curtails citizens' First Amendment and free speech rights, Perry wrote.

She said dispersal orders given by police were vague and given without adequate warnings. They failed to tell protesters and others the area they had to leave, where they were allowed to go and how long they had to stay away, she wrote.

Perry wrote that the ACLU was also likely to prevail on its claim that police unconstitutionally use chemical agents "without warning on citizens engaged in expressive activity that is critical of police or who are recording police."

Although police testified that a previous lawsuit settlement and their special orders governing the use of chemicals don't apply to hand-held mace, Perry did not agree.

She said witness testimony and videos shown during the hearings "shows that officers have exercised their discretion in an arbitrary and retaliatory fashion to punish protesters for voicing criticism of police or recording police conduct."