665 F.3d 997 (8th Cir. 2012), 10-3552, Bernini v. City of St. Paul

Docket Nº:10-3552.
Citation:665 F.3d 997
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:Brook BERNINI; Matthew Byrnes; Simon Cecil; Andrew Cohen; David Drew, Jr.; Alana Michelle Exum; Bobby Reese Hagy, Jr.; Adryn Hayes; Kevin Hundt; Rachel Jackson; Tiana Johnson; Garth Kahl; Jared Lanctot; Michael Larson; Vain Mainstream; Craig Neef; Mary Ogle; Tim Phillips; Raphi Rechitsky; Lambert Rochfort; Nick Segner; Ryan Solem; Zach Swift; Andre
Attorney:David Lawrence Shulman, argued, Minneapolis, MN, for appellants. Susan Marie Tindal, argued, Jon K. Iverson, on the brief, Bloomington, MN, for appellees.
Judge Panel:Before COLLOTON, CLEVENGER,[1] and BENTON, Circuit Judges.
Case Date:January 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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665 F.3d 997 (8th Cir. 2012)

Brook BERNINI; Matthew Byrnes; Simon Cecil; Andrew Cohen; David Drew, Jr.; Alana Michelle Exum; Bobby Reese Hagy, Jr.; Adryn Hayes; Kevin Hundt; Rachel Jackson; Tiana Johnson; Garth Kahl; Jared Lanctot; Michael Larson; Vain Mainstream; Craig Neef; Mary Ogle; Tim Phillips; Raphi Rechitsky; Lambert Rochfort; Nick Segner; Ryan Solem; Zach Swift; Andrew Temperante; Michael Ward, II; Rachel Westlund; Nelson Whitmore; Kellan Dubbels; Kristofer Dubbels; David Morse; Bruce Wilkinson; Adam Hayden, on behalf of themselves and all others similarly situated, Appellants,

v.

CITY OF ST. PAUL; Steven Frazer; Joe Neuberger; Axel Henry; Patricia Englund; Matthew Clark, in their individual capacity, Appellees.

No. 10-3552.

United States Court of Appeals, Eighth Circuit.

January 13, 2012

Submitted: June 15, 2011.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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David Lawrence Shulman, argued, Minneapolis, MN, for appellants.

Susan Marie Tindal, argued, Jon K. Iverson, on the brief, Bloomington, MN, for appellees.

Before COLLOTON, CLEVENGER,1 and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

This civil action arose out of events that occurred on the first day of the 2008 Republican National Convention in St. Paul, Minnesota. Thirty-two people filed suit under 42 U.S.C. § 1983 against six police officers and the City of St. Paul, alleging violations of their rights under the First and Fourth Amendments. The parties stipulated to the dismissal of claims against one officer, and the district court 2 granted the defendants' motion for summary judgment on the remaining claims. The plaintiffs appeal the dismissal of their claims against five officers and the City, and we affirm.

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I.

We recite the facts in the light most favorable to the plaintiffs, the nonmoving parties. From September 1-4, 2008, St. Paul hosted the Republican National Convention at the Xcel Energy Center. The Convention attracted large crowds of protestors. Throughout the first day, property damage was reported around the City. There were broken building windows, objects thrown at cars and buses, and vandalized police cars. After marches with permits had ended, Senior Commander Joseph Neuberger, who was the east area commander for mobile field force operations during the Convention, ordered that no one be allowed to enter the downtown area. Neuberger believed it was necessary to " reestablish control [and] reestablish law enforcement presence" downtown and around the Convention site.

The events at issue occurred on or near Shepard Road in St. Paul. Shepard Road runs along the southeastern edge of downtown St. Paul and borders the Mississippi River. The road was a major thoroughfare during the Convention. It served as a route for emergency vehicles to access the Xcel Energy Center, and it was the planned route of the First Lady's motorcade on the evening of September 1. Although Shepard Road runs along the edge of downtown St. Paul, it provides only limited access to downtown, because much of the road is bordered by the Mississippi River on one side and a large concrete wall on the other. Jackson Street and Sibley Street intersect with Shepard Road and provide access to the east end of downtown St. Paul.

After ordering downtown closed, Neuberger learned about a group of people marching east on Shepard Road. Neuberger instructed a team of officers— known as Neighborhood Response Team 36 (" Team 36" )— to position itself at the intersections of Shepard Road and Jackson Street and Shepard Road and Sibley Street to prevent entry to the downtown. As Team 36 traveled to the intersections, the unit passed a large group marching along Shepard Road. The officers received information that the group was connected to unlawful acts that had occurred earlier in the day. Team 36 positioned approximately 11 officers at each intersection, blocking access to the downtown area.

At about 4:30 p.m., as seen on video recordings submitted as evidence, a group of approximately 100 people gathered at the intersection of Shepard Road and Jackson Street and stood on the sidewalk across the street from the officers on the south side of Shepard Road. About fifteen people, advancing behind two large signs, soon began to cross Shepard Road, moving toward the officers and downtown St. Paul. The words " Direct Action Against Capitalism" were written across one of the signs.

The officers instructed these people to " back up, back up!" As the group continued to cross Shepard Road, the officers deployed stinger blast balls. These balls contain rubber pellets; they are designed to sting the targeted persons. The small group then retreated to the sidewalk on the south side of Shepard Road. Although the plaintiffs deny seeing anyone throw objects at Team 36, the officers reported that numerous objects— including rocks and bags containing feces— were propelled at them.

After the group retreated to the sidewalk along Shepard Road, it began to move to the west. The officers, soon joined by reinforcements, also moved west in an attempt to direct the crowd away from Jackson Street and back in the direction from which it came. As the crowd proceeded west, it grew to include hundreds of people. On video footage, members of the crowd can be heard chanting in

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unison " the whole world is watching" and various profanities. The police continued to use non-lethal munitions, including smoke, blast balls, and chemical irritants, in an apparent effort to keep the crowd moving west.

In consultation with Neuberger, Steven Frazer, the officer in charge at the scene, decided to encircle the crowd in a park adjacent to Shepard Road and near Ontario Street, approximately 0.6 mile west of the Jackson Street intersection. Because much of Shepard Road is bordered by the river and concrete wall, this park presented the first opportunity west of Jackson Street to gather the crowd, which now included approximately 400 individuals. After the officers contained the crowd in the park, they announced multiple times by loudspeaker that all persons were under arrest and must sit down and place their hands on their heads. Officers then attempted to determine who had been present at the Shepard-Jackson intersection. According to one officer, these people " stayed together as group" and " were segmented off from the other people" in the park. The sorting process led to the release of approximately 200 people. The officers then booked and placed into custody about 160 others. The parties dispute whether the officers ordered the crowd to disperse before encircling the park and making the arrests.

Thirty-two people filed suit pursuant to 42 U.S.C. § 1983 against the City of St. Paul and the five appellee police officers in their individual capacities. The plaintiffs were present along Shepard Road in various capacities, including as legal observers, medics, concert-goers, protestors, and members of the media. At least eighteen plaintiffs were present in the immediate vicinity of the Shepard-Jackson intersection at the time of the confrontation. The remaining plaintiffs claim they were located somewhere between the intersection and the park, and were added to the group as police moved the crowd west. Although each plaintiff was present in the park when it was encircled by the police, seven plaintiffs (including two who were present at the Shepard-Jackson intersection) were briefly detained and released, and...

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