Court says tear-gassed news crew can sue officer

The 8th U.S. Circuit Court of Appeals ruled Jan. 28 that most of the claims can proceed against an officer alleged to have fired tear gas at reporters during the 2014 Ferguson protests.

The court agreed with a magistrate judge’s earlier decision that Michael Anderson, a member of the St. Charles County Regional SWAT Team, did not have qualified immunity. A “robust consensus of cases of persuasive authority,” Judge Duane Benton wrote for the court, demonstrated that Anderson’s alleged actions violated the news crew’s clearly established rights.

“A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible,” Benton wrote. Chief Judge Lavenski R. Smith and Judge Jonathan A. Kobes concurred.

The reporters, Ash-har Quraishi, Marla Cichowski and Sam Winslade, were reporters with Al Jazeera America who covered the unrest that followed the fatal shooting of Michael Brown. Anderson claims the reporters refused orders to disperse and turn off their lights, and that he saw projectiles launched from the area. The reporters allege that the scene was calm and they were not ordered to move.

At this stage in the litigation, the 8th Circuit assumed the plaintiffs’ facts were true, though Benton noted that the reporters’ story matches videos of the encounter — including from the crew’s camera, which was left on and “recording most of the summary-judgment facts.” 

“Anderson insists at length that the material facts are those he perceived,” Benton wrote. “However, the court is not limited to only facts provided by Anderson.”

The court said the First Amendment claim could proceed, along with battery claims the reporters brought under Missouri law. However, the court threw out a claim that the officer’s actions constituted an unlawful seizure under the Fourth Amendment. It wasn’t clearly established that the use of a chemical agent was itself a seizure, Benton wrote, and the reporters were dispersed, not told to stay in place.

Bernard Rhodes of Lathrop GPM in Kansas City, an attorney for the reporters, was pleased that the main part of the case could proceed.

“Regardless of what the name of the claim is, we’re going to the jury,” he said.

James Layton of Tueth Keeney in St. Louis, who argued on behalf of Anderson, said the officer was doing the best he could under difficult circumstances.

“The court makes some assumptions about his motive that we don’t think are justified, and hopefully at trial we will demonstrate to the jury that they are not justified,” he said.

The case is Quraishi et al. v. Anderson, 19-2462.