Mark Nieters v. Brandon Holtan, No. 22-2600 (8th Cir. 2023)
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Plaintiff sued under 42 U.S.C. Section 1983 after he was pepper-sprayed and tackled by a Des Moines Police Officer while photographing a protest. Plaintiff, who was covering the protest as a journalist, claimed that the officer and other city officials violated his First and Fourth Amendment rights. The district court granted the city officials’ motion for summary judgment after concluding that the officer was entitled to qualified immunity.
The Eighth Circuit reversed the district court’s order granting summary judgment on the unlawful seizure and excessive force claims but affirmed the district court’s order granting summary judgment dismissing the retaliation claim. The court explained that viewing the totality of the circumstances in the light most favorable to Plaintiff, there are genuine issues of material fact on whether there was an excessive use of force. To begin, they arrested Plaintiff for failure to disperse—a misdemeanor. Second, while the officer focuses on the fact there had been “hours of criminal activity occurring” and that he was “under constant threat of harm from active rioters,” he cannot point to any facts suggesting an immediate threat to his safety or the safety of others. Further, the court wrote that numerous cases show that the identified general constitutional rule applies with obvious clarity to the conduct in question.
Court Description: [Grasz, Author, with Gruender and Kelly, Circuit Judges] Civil case - Civil rights. Plaintiff alleged the defendant Des Moines police officer and other city officials violated his civil rights when the defendant officer pepper-sprayed him and tackled him to the ground while plaintiff was covering a protest as a journalist; the district court determined the officer was entitled to qualified immunity and granted summary judgment in favor of the defendants; plaintiff appeals. Held: The district court erred in granting the officer summary judgment on plaintiff's claim of unlawful seizure as there are genuine issues of material fact, and a reasonable jury could conclude that there was not probable cause to believe plaintiff violated Iowa's dispersal statute since, under the facts favorable to him, he was not participating in or within the immediate vicinity of a riot or unlawful assembly, was not within hearing distance of the dispersal command, and did not refuse to disperse; even if the court could conclude that the officer made a reasonable mistake when he tackled the plaintiff, plaintiff immediately informed the officer he was a journalist and provided press credentials; under these circumstances, it was not an objectively reasonable mistake to believe probable cause existed for plaintiff's arrest; with respect to plaintiff's claim for excessive force, there are also questions of material fact as to whether there was an excessive use of force, and the right to be free from excessive force under these circumstances was clearly established; with respect to plaintiff's First Amendment retaliation claim, plaintiff failed to establish that there was a but-for causal connection between his injury and the officer's retaliatory animus, and the officer was entitled to summary judgment on this claim. Judge Gruender, concurring in part, and dissenting in part.
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