A federal judge has issued an injunction stopping St. Louis police from pepper-spraying protesters without probable cause, and ordered new restrictions on police conduct during protests.
The conduct of St. Louis police officers has come under criticism in the frequent protests following the acquittal of former police officer Jason Stockley in the shooting death of Anthony Lamar Smith. Critics alleged that police used overly aggressive tactics and violated the rights of peaceful protesters.
Five people who were pepper-sprayed during the protests filed suit asking for an injunction against police procedures on protests.
U.S. District Judge Catherine Perry issued an order Wednesday for a preliminary injunction, stating that the practices of the police department appear to violate the constitutional rights of the plaintiffs. She specifically pointed out that police officers testified that it was within their sole discretion to declare a protest unlawful even if all the protesters were doing was standing on a sidewalk or a street closed by police, in violation of the First Amendment.
“This custom or policy permits officers to exercise their discretion in such a manner as to impermissibly curtail citizens’ First Amendment rights… based on nothing more than a subjective determination by an officer that ‘We’re done for the evening,’ or when the content of the speech is deemed objectionable,” Perry wrote.
The city of St. Louis does not require or issue a permit for protests.
The judge’s order laid down specific rules for policing of protests, including:
▪ Police cannot declare a gathering unlawful unless there is an imminent threat of violence, and not just to punish people for their expression of ideas;
▪ Police cannot use or threaten to use chemical agents solely for punishing protesters;
▪ Mace and pepper spray cannot be used without probable cause to arrest;
▪ Police cannot order a crowd to disperse without specific instructions and allowing them time to leave and a way to leave the area.
The judge said the police “kettle” on Sept. 17 could not meet constitutional standards and was conducted with no evidence of force or violence to officers. That mass arrest included St. Louis journalist Mike Faulk, whose arrest and assault was widely criticized by First Amendment advocates and journalism organizations.
The suit was filed by St. Louis photographer and student Maleeha Ahmad and others against the city of St. Louis. Ahmad herself was maced during the protests, and she and others testified that no warnings were given before deployment of mace and that they were not disobeying any orders when they were maced. One woman, Dana Kelly-Franks, said she was standing on a sidewalk watching when she was knocked over and maced without warning.
Two defendants, Keith Rose and Joshua Wedding, were filming police officers in action and testified they were maced in the face with no warning and no dispersal order given, apparently in retaliation for filming. The court record indicates that Wedding’s video was introduced as evidence and was consistent with his version of events.
Rose testified that when he heard a warning to disperse, he tried to leave as directed, but was not permitted to do so by police. Several people, including residents of the neighborhood who were not participating in the protests, testified that police blocked off the area and did not allow people to leave, then arrested those who were there for “failure to disperse.”
Alex Nelson, who was a resident trying to get into his apartment building, testified he and his wife were maced and he was dragged, kicked and had his face shoved into the ground after his hands were cuffed behind his back. Another video presented at the hearing shows an unidentified officer walking around shooting pepper spray at arrestees who were lying on the ground, complying with commands and without warnings.
The police department representatives testified that officers were not required to give warnings before using mace and could use it just to get a crowd to disperse. Existing policies also prohibit macing or otherwise assaulting people for nonviolent protest or filming police in the course of their duties.
“Defendant denies that police officers engaged in retaliatory activity, but alternatively argues that if any such activity took place, it was not in accordance with defendant’s policies,” the ruling read.