On July 27, 2022, the Eighth Circuit Court of Appeals decided Brown v. City of St. Louis[i], which serves as instructive regarding claims for false arrest of protesters. The relevant facts of Brown are as follows:
On March 11, 2016, then-presidential candidate Donald Trump held a campaign rally at the Peabody Opera House in St. Louis, a privately owned venue. The event was ticketed, though tickets were free. Brown obtained a ticket and selected a front-row seat near the center of the stage. Although the exact number of attendees is not found in the record, Officer Boettigheimer testified in his deposition that he believed that over 1,000 people were in attendance. Additionally, numerous SLMPD officers were assigned to work the event. A 25-page intra-department report shows that the SLMPD deployed a multitude of units on the day of the rally, with units assigned to Trump’s motorcade, the inside and outside of the Peabody Opera House, and the area surrounding the Peabody Opera House. Other units included a bomb and arson unit, an intelligence unit, a “mass arrest booking” unit, a special operations response squad, and a reserve SWAT team that coordinated with the United States Secret Service to offer a tactical response if needed. Officer Boettigheimer testified in his deposition that prior to working the at-issue rally, he learned of other Trump rallies that had become violent.
A video from the event, introduced by the officers in support of their motion for summary judgment and labeled as “Exhibit A,” captured a pause in Trump’s speech, at which point the auditorium’s silence was disrupted by Brown’s loud laughter. In response to this laughter, Trump shielded his eyes and looked into the crowd, apparently to determine where the laughter originated. Rallygoers began to stand up and can be heard in the video demanding that Brown be removed. Trump also demanded that Brown be removed, saying variations of “Get him out of here!”
The parties dispute what happened next. Brown maintains that other rallygoers “approached him . . . cursing and gesturing at him excitedly” and that he, “at no point[,] showed any indication of violence and was merely expressing his political opposition to Trump.” On the other hand, Officer Boettigheimer testified in his deposition that, after laughing loudly, Brown began creating a “larger disturbance” and was yelling and pointing at other rallygoers. Officer Boettigheimer explained that, even as he and Officer Korte were escorting Brown out of the auditorium, Brown was turning around and yelling at the other rallygoers. When asked in his deposition why he decided to first approach Brown, Officer Boettigheimer testified that he had been standing approximately 100 feet from Brown when Brown laughed loudly. He explained that if Brown had only laughed, he likely would not have approached and arrested Brown. However, after laughing loudly, Brown “continu[ed] to cause a disturbance,” and Officer Boettigheimer felt that the disturbance was growing too large and needed to be “quell[ed] . . . immediately.”
A review of Exhibit A reveals that, after Brown’s loud laughter, while Brown was still at his seat and before Officers Boettigheimer and Korte began escorting him out of the auditorium, another rallygoer confronted him. Mark Comfort, the man who was seated next to Brown, later testified in his deposition that Brown and this other rallygoer were standing “nose-to-nose.” Exhibit A then shows Officers Boettigheimer and Korte approach Brown and escort him out of the auditorium. In accordance with Officer Boettigheimer’s version of events, Exhibit A depicts Brown resisting the officers while also yelling and gesturing wildly at the other rallygoers and Trump. Although the video concludes prior to Brown’s arrest, the record shows that, once out of the auditorium, Officer Boettigheimer placed Brown under arrest. Detective Steiger later prepared the incident report documenting Brown’s arrest, as well as dozens of other arrests that took place at the rally. Detective Steiger was not present at the Peabody Opera House, and he did not participate in Brown’s arrest.
On April 6, 2016, the City of St. Louis filed a formal charge against Brown for violating Section 15.46.030 of the Revised Code of the City of St. Louis, which prohibits disturbing the peace. Following a bench trial before the St. Louis City Municipal Court, Brown was acquitted of this charge.[ii]
Brown subsequently filed suit against the officers and the city on federal and state law claims. The federal claims were for a violation of the Fourth Amendment for allegedly arresting Brown without probable cause and the First Amendment for retaliation for his exercise of free speech. The district court granted qualified immunity for the officers and summary judgment for the city. [Note: This article will only discuss the federal claims.]
The court first discussed qualified immunity and stated
Police officers are ‘entitled to qualified immunity unless (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation.‘” Bell v. Neukirch, 979 F.3d 594, 602 (8th Cir. 2020) (citation omitted). “‘Clearly established’ means that, at the time of the officer’s conduct, the law was ‘”sufficiently clear” that every “reasonable official would understand that what he is doing”‘ is unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (citation omitted). Stated differently, “[t]he precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Id. at 590. This requires either case law that “place[s] the lawfulness of the particular arrest ‘beyond debate,'” or, in “the rare ‘obvious case,'” unlawfulness that is “sufficiently clear even though existing precedent does not address similar circumstances.” Id. (citations omitted). Further, we may conduct this inquiry in any order and resolve this inquiry on either prong, regardless of the order chosen by the district court. See Blazek v. City of Iowa City, 761 F.3d 920, 923 (8th Cir. 2014)[iii]
Thus, in order to defeat an officer’s motion for qualified immunity, the plaintiff must show (1) that the officer violated the plaintiff’s rights, and (2) that the law was clearly established such that every reasonable officer would have known the conduct at issue was a violation of the plaintiff’s rights.
The court of appeals next examined the legal principles related to arrests and the Fourth Amendment. Specifically, the court stated
In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Bell, 979 F.3d at 603 (quoting Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004)). . .
Probable cause exists “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.'” Nader v. City of Papillion, 917 F.3d 1055, 1058 (8th Cir. 2019) (citation omitted). “To determine whether an officer had probable cause for an arrest, ‘we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.‘” Wesby, 138 S. Ct. at 586 (citation omitted). “The existence of probable cause ‘depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.‘” Bell, 979 F.3d at 603 (emphasis added) (quoting Devenpeck, 543 U.S. at 152).[iv]
The court also discussed the fact that the probable cause standard is not as definitive as the “preponderance of the evidence” standard; rather, it is a non-technical, practical, objective standard that affords officers “substantial latitude in interpreting and drawing inferences from factual circumstances.”[v] The court also stated
[W]here the officers act on a mistaken belief that probable cause exists, if that mistake is ‘objectively reasonable,’ arguable probable cause exists.” Id. (emphasis added); see also Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (“[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable.”).[vi]
Simply put, if another reasonable officer in the same situation could have believed that probable cause was present, even if it was not present, then it is said that the officer had “arguable probable cause.” This entitles the officer to qualified immunity.
The court explained that, in relation to qualified immunity in a Fourth Amendment false arrest claim, the court will examine with probable cause was present for the arrest in the first prong of the qualified immunity analysis, specifically whether the arrest violated the Fourth Amendment. If a court finds that there was not probable cause, they will examine whether there was “arguable probable cause” during the analysis for the second prong, specifically, whether another reasonable officer in the same situation could believe that probable cause was present. If the court finds that arguable probable cause was present, then it will be held that the law was not clearly established, and the officer will be entitled to qualified immunity.
The court of appeals then set out to determine if arguable probable cause was present to arrest Brown in the case at hand. The ordinance under which Brown was arrested and prosecuted was stated, in pertinent part, as follows:
Any person who shall disturb the peace of others by noisy, riotous or disorderly conduct, or by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene, indecent, lewd or offensive language, calculated to provoke a breach of the peace . . . shall be guilty of a misdemeanor. (Section 15.46.030)[vii]
The court of appeals then looked to precedent from the Missouri Supreme Court to determine how the ordinance has been interpreted. The court stated
The Missouri Supreme Court, interpreting this ordinance and relying on the Supreme Court’s interpretation of similar ordinances, explained that the ordinance criminalizes only “acts or conduct inciting violence or intended to provoke others to violence.” City of St. Louis v. Tinker, 542 S.W.2d 512, 516 (Mo. 1976) (en banc). It further explained that “[t]he obvious purpose of the ordinance is to prevent violence by imposing a sanction on conduct reasonably calculated to cause immediate violence,” recognizing that when a police officer is deciding whether to arrest someone pursuant to this ordinance, he must consider not only “[t]he conduct or language used by the speaker” but also “its probable effect . . . viewed in the setting in which it occurs.” Id. at 519.[viii]
The court of appeals then stated that to determine if the officers are entitled to qualified immunity, they must determine if “it was objectively reasonable for the officers to mistakenly believe, under the totality of the circumstances, that Brown was engaged in acts or conduct inciting violence or intended to provoke others to violence.”[ix]
The court of appeals held that it was reasonable for the officers to “mistakenly believe” that Brown was engaged in acts inciting violence or intended to provoke others to violence. The court reasoned that (1) there were approximately 1,000 rally-goers present; (2) there was a large law enforcement presence, including patrol officers and tactical units both inside and outside the event; (3) Brown laughed loudly and went “nose-to-nose” with another person at the rally while yelling at Trump and other rally-goers; (4) Officer Boettigheimer testified that he believed the disturbance was growing and needed to be quelled immediately; and (5) Brown’s erratic and disorderly behavior continued as he was escorted out of the auditorium, with Brown yelling and gesturing at the crowd and resisting the officers. These facts were all recorded on video.
In light of these facts, the court of appeals held
Therefore, we find that Officers Boettigheimer and Korte had arguable probable cause to arrest and then initiate prosecution against Brown, meaning that it was not clearly established that doing so would violate Brown’s right to be free from unlawful seizure, malicious prosecution, or First Amendment retaliation. Thus, we affirm the district court’s grant of qualified immunity to Officers Boettigheimer and Korte.[x]
Further, Detective Steiger, who was not present during the incident, but wrote the report and initiated the prosecution, was also granted qualified immunity based on arguable probable cause.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 21-2460 (8th Cir. Decided July 27, 2022)
[ii] Id. at 2-5
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9-10 (emphasis added)
[v] Id. at 11
[vi] Id. (emphasis added)
[vii] Id. at 15
[viii] Id. (emphasis added)
[ix] Id. at 15-16
[x] Id. at 17