‘Pepper spray is the new firehose’: ACLU, city debate the legality of police actions at injunction hearing

A St. Louis police officer continued to pepper-spray a protestor as he was walking away during a protest in St. Louis on September 29. Police use of pepper spray in apparent retaliation against protestors is under review by a federal judge in a suit brought by the an American Civil Liberties Union of Missouri.

Photo by Lawrence Bryant

In the last day of the federal injunction hearing in an American Civil Liberties Union (ACLU) of Missouri lawsuit against the City of St. Louis, the two sides presented their legal arguments about whether police officers need more regulation and what the future of protest policing in St. Louis should look like.

ACLU lawyer Anthony Rothert made the first argument on Monday, October 23, asking federal judge Catherine D. Perry to issue an injunction more firmly defining the limits of police behavior at protests. Rothert argued that the St. Louis Metropolitan Police Department (SLMPD) had clearly violated the First Amendment rights of protesters during the response to protests of the Jason Stockley not-guilty verdict.

The SLMPD is currently bound by the settlement in the 2015 case of Templeton v. Dotson, although the federal court only oversees the agreement until January 1. The settlement stipulates that SLMPD officers must warn for the use of “tear gas, inert smoke, pepper gas, or other chemical agents.” Rothert argued this was too narrow, since officers still do not warn for the direct use of pepper spray.

During testimony, at least one witness, Chris Sommers, said a non-pepper spray chemical agent was thrown towards him without warning. Many others testified they were pepper sprayed directly while not resisting arrest and complying with police orders.

Although the police policy stipulates pepper spray should be used when the person sprayed could be charged for resisting arrest, it does not require that pepper spray is necessary to make the arrest. Several witnesses pepper sprayed were not charged with any crime; the plaintiffs, Maleeha Ahmad and Alison Dreith, were pepper sprayed but not arrested.

“Pepper spray is the new firehose,” Rothert said.

During his legal argument for the defense, attorney Anthony Relys said the current regulations in place for the use of pepper spray are sufficient. According to the Templeton settlement, officers must use warnings before using pepper spray for crowd dispersal when it is practical to do so.

However, Relys said the uses that witnesses testified to were in the interest of “compliance” with police orders, which does not have to be warned for.

The ACLU also argued that the definition of an “unlawful assembly” is too broad. Currently, any police officer has the authority to declare a gathering an unlawful assembly when any crime is committed in a group of two or more people. After a dispersal order is issued, anyone on the scene who is not actively preventing the crime can be arrested.

Perry pointed out this technically includes non-violent misdemeanors, such as spitting on the sidewalk. By definition, it also includes any protest which blocks traffic, as the City of St. Louis does not issue protest permits. Nonetheless, as witnesses pointed out during the first days of testimony, many protests in St. Louis are not broken up

This standard is set out in a city ordinance, while the State of Missouri defines an unlawful assembly more broadly as a group of six or more people committing or planning a crime. The ACLU requested the court suspend enforcement of the city ordinance, leaving the state law as the standard.

Perry questioned the defense directly about this issue. She used the hypothetical examples of two people breaking the law by jaywalking across a street, or a group of people gathered somewhere where a crime had been committed several hours earlier.

“Any police officer can declare that an unlawful assembly and order people to disperse. Is that really how that works?” Perry said.

Relys said while that is the language used, it does not happen that way in practice. When police in St. Louis respond to protests, he said, an “incident commander” is chosen who declares the assembly unlawful if a crime is committed and also issues any dispersal orders directly.

For Rothert, though, dispersal orders were also a problem. He argued they were vague, had no defined time or distance limits, and were inconsistent, with many dispersal orders not followed by arrests, so protestors could not predict the consequences or easily comply.

Rothert pointed to the example of the consent decree applied in the case of United States v. City of Ferguson, also a case heard by Perry. The decree restricts the power of declare an unlawful assembly to certain high-level officers and specifically prohibits retaliation against anyone protesting or filming police activity.

Rothert argued the response to their protesting or observation of protests has had a “chilling effect” on the speech of the witnesses, with most at least taking a break from attending protests. “Chilling effect” is a term often used in First Amendment court cases, meaning citizens would experience reasonable fear that engaging in protected free speech would lead to adverse consequences.

“It is reasonable for our clients to be afraid of it happening again,” Rothert said.

Speaking in opposition, Relys argued this was not sufficient to issue an injunction and the ACLU lawyers had not defined what they wanted from one.

“It’s not the least bit clear, it’s not the least bit precise, and it’s completely over-broad,” Relys said of the plaintiffs’ argument.

The city argued that “speculative harm” which might occur in the future did not justify the application on an injunction. They said even if the ACLU attorneys could show the police had engaged in misbehavior on a few occasions, they had not shown that it was a pattern.

Speculative harm – which might occur, but which the plaintiffs cannot show can be reasonably expected to occur –  is not considered grounds a court can act on.

Perry asked if the witness testimony that arrests and use of chemical munitions occurred more frequently at protests over police behavior showed a pattern of “content-based prejudice.” Relys responded by citing examples of unlawful behavior that had not occurred at other protests, saying police respond to the conduct of the crowd at protests, not vice versa.

The city also objected to the idea of a specific prohibition against retaliation, saying it would lead to every incident between a police officer and a protester being contested in court.

“If there were a more clear standard, the Supreme Court would have come up with it by now,” Relys said.

The city also responded to the ACLU’s charge that rules governing dispersal orders were too vague. They argued that a policy is not vague unless a reasonable person who wanted to follow it could not do so and said that was not the case with protestors; they moved protests to a different location instead of breaking them up, which is the intent of a dispersal order.

Rothert said police should not have the authority to use dispersal orders to end protests entirely and their belief they should be able to decide when protests end was part of the problem.

“The government being in charge of a protest of the government is incompatible with the First Amendment,” Rothert said.

At the conclusion of the hearing, Perry asked the ACLU attorneys to send a draft of an injunction order by noon Tuesday, October 24, specifying that it should be short and narrowly defined. This draft would not obligate the judge to ultimately issue an injunction, or define the language of one if it were issued.

In the upcoming phases of the trial, both parties will present more evidence about the events of the protests and Perry will ultimately decide whether to level damages against the city.

Jessica Karins is an editorial intern for The St. Louis American at Webster University.

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