The 8th Circuit appellate court yesterday issued a ruling in long-simmering litigation over St. Louis police officers’ treatment of protesters and journalists in September 2017. Legal experts said on St. Louis on the Air that the ruling comprises a clear setback for protesters and the ACLU of Missouri.
Big protests followed the acquittal of former St. Louis Police officer Jason Stockley on Sept. 15, and they lasted throughout the weekend. Some protesters were maced. Approximately 125 were caught up in a “kettle” and arrested, some receiving violent treatment in the process. Numerous lawsuits (and one criminal prosecution, against officers who beat an undercover colleague) followed.
One of those lawsuits, filed by the ACLU of Missouri, resulted in a temporary injunction against the St. Louis Metropolitan Police Department, ordering officers to strictly adhere to the Constitution during protests. Separately, the suit was certified as a class action in May 2019, allowing attorneys to bundle together claims from everyone alleging mistreatment by police throughout the weekend of protests.
But yesterday’s appellate ruling undoes that decision.
In a unanimous decision, the 8th Circuit panel vacated the class certification order. The judges wrote that the members of the class had different experiences and likely had different remedies. Some were protesters who admitted to breaking the law; others were observers swept up in wrongful arrests. “Each of these fact-intensive claims requires different proof to establish the alleged constitutional violation,” the judges wrote.
That makes it much harder for attorneys to litigate the claims for the broader group — and more difficult for individual protesters to win financial recompense.
“I think this order is a win for the City of St. Louis,” Sarah Swatosh, a partner at Sedey Harper Westhoff, explained on Wednesday’s St. Louis on the Air. “This is a loss for the ACLU, for the protesters.”
While the ruling officially leaves open the question of whether protesters are a class, Swatosh said it sends a strong message to U.S. District Judge Catherine Perry: “that she should not certify this as a class.”
The appellate panel also wrote that Perry should revisit that question only after she determines whether a permanent injunction in the case is warranted — “at which point” the judge can determine whether status as a class “is appropriate and necessary to afford proper equitable relief.”
The judges kept in place their temporary injunction on police but suggested it was time to get moving on the underlying claims. They set the injunction to expire on Oct. 31, 2021, unless it is replaced with a final order from the judge granting it permanent status.
“They were basically saying, ‘You’ve got to get this to trial and look at these issues, and we can’t just leave this preliminary injunction in place forever,’” said attorney Mark Smith. A vice chancellor at Washington University, he is also dean of career services.
Jennifer Joyce, the former St. Louis circuit attorney who is now a consultant at Vera Causa Group, said the judges made clear that they want the case to move forward.
“The point that the 8th Circuit is trying to make is that this is taking a long time,” she said. “I could see that they are very frustrated with this, because it’s a temporary injunction. It’s not supposed to go on for years. They put some language in there that I think is really clear that says they expect this to be resolved in six months.”
As Joyce and Swatosh noted, the ruling also limits what discovery can be done in the meantime; if the court allows more testimony aimed at certifying the group swept up in the arrests as a class, the injunction gets lifted. Swatosh called the court’s move “absolutely punitive.”
“It seemed a little harsh,” Joyce concurred.
The attorneys also discussed challenges to St. Louis’ earnings tax, which takes 1% of income for anyone who lives or works in the city. Since the pandemic has many workers doing their jobs from home, suburbanites are increasingly seeking refunds of the city’s tax — and suing when they don’t get it. All three panelists agreed that people suing the city could find success.
“This is a lethal blow to the city, possibly,” Joyce said. “The city may have to completely alter its budget if this lawsuit is successful.”
Other topics included the possibility of a legal challenge to the legislature’s refusal to fund Medicaid expansion, the difficulty of resuming jury trials as the pandemic drags on and a new rule making it more difficult to seal documents in the federal court based in St. Louis.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
