The City of St. Louis is asking a panel of federal judges to reconsider a January decision to allow a lawsuit against city police officers to go to trial.
Short of that, the city is asking for a rehearing in front of the entire U.S. District Court of Appeals for the Eighth District to stop the case from moving forward, according to the city’s petition filed Thursday.
On Jan. 25, a three-judge panel in the Eighth District affirmed a lower court’s decision that qualified immunity – or protection of officers from lawsuits – didn’t apply in the arrest of retired U.S. Air Force Lt. Col. Brian Baude in a 2017 St. Louis protest.
“Police may be entitled to qualified immunity protections if they arrest individual offenders with at least arguable probable cause,” it states, “but officers cannot enjoy such protections by alleging that ‘the unlawful acts of a small group’ justify the arrest of the mass.”
St. Louis City Counselor Sheena Hamilton argues in her petition that the court should reconsider the case because “the panel opinion raises questions of national importance in the context of policing mass civil disorder.”
Attorney Javad Khazaeli, who represents Baude, said the city’s argument regarding qualified immunity, if successful, would have repercussions nationwide.
“They’re asking for the Eighth Circuit to issue an order to tell everybody in the nation that there is an expansion of qualified immunity when police officers beat people when it’s during a protest,” he said. “Remember the Eighth Circuit doesn’t just rule over St. Louis. Any decision that they make will be binding over all of the George Floyd protests of Minnesota.”
Khazaeli said it’s his understanding that the city plans on appealing to the U.S. Supreme Court if unsuccessful with the appeals court.
A spokesman for the city declined comment, citing pending litigation.
On Sept. 17, 2017, Baude walked out of his home in downtown St. Louis to investigate any potential destruction during a protest, where people were decrying the acquittal of former St. Louis police officer Jason Stockley in the 2011 killing of Anthony Lamar Smith.
That evening, Baude got swept up in a mass “kettling” arrest of more than 100 people, where officers surrounded everyone within an intersection on all sides. Video evidence shows, appellate judges wrote in their January opinion, a “generally peaceful and compliant crowd.”
And the mass arrest not only involved, “a few people noisily proclaiming their constitutional right to assemble, but others who were generally gawking and milling about, others on bikes riding through the area, some people sitting on the street and on the sidewalk, and even a person pushing a baby in a stroller,” the judges wrote.
Baude’s lawsuit is among 11 others that are being represented by the Khazaeli Wyrsch law firm. The individuals – who include downtown residents, independent journalists, Washington University students and members of the military – claim they were wrongfully beaten, pepper-sprayed and arrested.
The city’s petition states that, “the panel opinion sets a dangerous precedent for police attempting to preserve public order in civil disorder situations.”
Hamilton was appointed by Mayor Tishaura Jones, who has largely been supported by the movement for racial equity and police accountability. She campaigned that on the idea that her administration would address police brutality cases differently than previous mayors.
Upon Hamilton’s appointment, the mayor’s chief of staff Jared Boyd told St. Louis Public Radio the new city counselor is going to be “given a mandate to reconsider what winning looks like,” and not only trying to prevent a financial loss for the city on such cases.
“It’s not to say we shouldn’t be cognizant of city resources,” he said, “but that can’t be the only thing.”
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