Quraishi v. St. Charles Cnty.

• Decision Date: 28 January 2021
• Docket Number: No. 19-2462,19-2462
• Citation: 986 F.3d 831
• Parties: Ash-har QURAISHI; Marla Cichowski; Sam Winslade, Plaintiffs - Appellees v. ST. CHARLES COUNTY, MISSOURI, Defendant Deputy Michael Anderson, a member of the St. Charles County Regional SWAT team, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

986 F.3d 831

Ash-har QURAISHI; Marla Cichowski; Sam Winslade, Plaintiffs - Appellees

v. ST. CHARLES COUNTY, MISSOURI, DefendantDeputy Michael Anderson, a member of the St. Charles County Regional SWAT team, Defendant - Appellant

No. 19-2462

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2020

Filed: January 28, 2021

Bernard J. Rhodes, Lathrop GPM LLP, Kansas City, MO, for Plaintiffs-Appellees.

James Robert Layton, Tueth & Keeney, Holly Elizabeth Magdziarz, Rory Patrick O'Sullivan, Beverly E. Temple, Saint Charles County Counselor's Office, Saint Charles, MO, for Defendant-Appellant.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

BENTON, Circuit Judge.

Plaintiffs Ash-har Quraishi, Marla Cichowski, and Sam Winslade—reporters with Al Jazeera America news network—covered the protests after the death of Michael Brown in Ferguson, Missouri. Deputy Michael Anderson, an officer in the St. Charles County police department, deployed a tear-gas canister at them while they were preparing for a live broadcast.

The reporters sued Anderson and St. Charles County under 42 U.S.C. § 1983. The district court denied qualified immunity to Anderson, permitting the reporters to proceed on their First Amendment, Fourth Amendment, and state-law battery claims. Quraishi v. St. Charles Cnty. , 2019 WL 2423321, at *8-11 (E.D. Mo. June 10, 2019). Anderson appeals under 28 U.S.C. § 1291.

I.

On August 9, 2014, amid public unrest and protests, St. Louis County requested assistance from the St. Charles County Regional SWAT Team. Anderson was a member of the SWAT Team.

On August 13, the three Al Jazeera reporters were covering the protests. For a live broadcast, they turned on their camera at 9:24 p.m., recording most of the summary-judgment facts. At least three other videos recorded the scene.

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as "tear-gas"). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to "turn the spotlight off." SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

The parties dispute some facts about the encounter. Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

II.

The threshold issue is this court's jurisdiction to hear Anderson's interlocutory appeal from the denial of qualified immunity. This court may review the district court decision "to the extent that it turns on an issue of law." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It may not review the "district court's determination about what factual issues are ‘genuine.’ " Z.J. ex rel. Jones v. Kan. City Bd. of Police Comm'rs , 931 F.3d 672, 680 (8th Cir. 2019), quoting Johnson v. Jones , 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Rather, this court is constrained to the legal question whether the particular facts support the reporters’ claim that Anderson violated clearly established law. See id.

This court resolves factual disputes in the reporters’ favor, reviewing the district court's denial of qualified immunity as a "pure question of law." See Duncan v. Cnty. of Dakota , 687 F.3d 955, 957 (8th Cir. 2012). This court reviews de novo a denial of summary judgment on qualified immunity grounds. Id.

Likewise, this court has limited jurisdiction to review state-law issues about Anderson's official immunity defense. See Thompson v. Dill , 930 F.3d 1008, 1013 (8th Cir. 2019).

III.

Qualified immunity shields Anderson from civil damages liability if his conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." See Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A two-step inquiry applies: (1) whether the reporters have alleged facts to show a violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. See Smith v. Kan. City Police Dep't , 586 F.3d 576, 580 (8th Cir. 2009). This court may consider either prong first. Id. , citing Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

The reporters have the burden to show that their right was clearly established at the time of the alleged violation. See Davis v. Scherer , 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). See also District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 591, 199 L.Ed.2d 453 (2018) ("Tellingly, neither the panel majority nor the [plaintiffs] have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation ‘under similar circumstances.’ "), quoting White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam).

To be clearly established, the "contours of the right must be sufficiently clear that a reasonable official would [have understood] that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The state of the law at the time of the alleged violation must give officials " ‘fair warning’ their conduct was unlawful." Sisney v. Reisch , 674 F.3d 839, 845 (8th Cir. 2012), quoting Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). There must be "precedent," "controlling authority," or a "robust consensus of cases of persuasive authority." Wesby , 138 S. Ct. at 589-90 (internal citations and quotations omitted). There may also be the "rare ‘obvious case’ where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances." Id. at 590, quoting Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam).

A.

To prevail on either of their First or Fourth Amendment claims, the reporters must show that Anderson had no probable cause. See McCabe v. Parker , 608 F.3d 1068, 1075 (8th Cir. 2010) (lack of probable cause is a necessary element for First and Fourth Amendment claims arising out of an arrest).

To receive qualified immunity, however, Anderson was required to have only "arguable probable cause." See Peterson v. Kopp , 754 F.3d 594, 598 (8th Cir. 2014) ; McCabe , 608 F.3d at 1078. "Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable." Peterson , 754 F.3d at 598. If Anderson had a "mistaken but objectively reasonable belief" that the reporters "had committed a criminal offense," they lose. See McCabe , 608 F.3d at 1078. See also Smithson v. Aldrich , 235 F.3d 1058, 1062-63 (8th Cir. 2000) (officers entitled to qualified immunity on First and Fourth Amendment because they had arguable probable cause).

Anderson argues he had arguable probable cause to believe the reporters were committing three crimes: refusing to disperse, obstructing officers performing their duties, and interfering with officers in a way that impacted officer safety. See §§ 574.060.1, 574.050.1, 574.040.1, RSMo 2000 ; St. Louis Cnty. Rev. Ordinances tit. VII, § 701.110 . It is disputed whether officers gave directions to disperse before Anderson deployed the canister, whether projectiles flew toward him from the area of the lights, and whether the reporters ignored orders to turn off their lights.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan , 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas. Cf. White v. Jackson , 865 F.3d 1064, 1076-79 (8th Cir. 2017) (officers had arguable probable cause to arrest protestors who "chose not to disassociate" from unlawful assembly on the street where most of the protests occurred).

Anderson insists at length that the material facts are those he perceived. See Gladden v. Richbourg , 759 F.3d 960, 964 (8th Cir. 2014) (stating qualified immunity is evaluated "from the perspective of a reasonable police officer based on facts available to the officer at the time of...