Mere Proximity to an Unlawful Riot Does Not Satisfy Probable Cause for Arrests
The Eighth Circuit recently rejected argument that arrests made within blocks of unlawful riots satisfy the threshold for probable cause.
On May 30, 2020, in the wake of George Floyd’s death, protestors assembled at the Iowa State Capitol building. After the protests became violent, the police declared the protestors’ assembly unlawful and issued dispersal orders. The police deployed pepper spray and tear gas and moved the protests about a mile away from the Capitol, westward over a bridge into a different part of town, the Court Avenue District.
But the protestors eventually moved eastward, back over the bridge and toward the Des Moines Police Station. A police line formed. The police again deployed tear gas and issued dispersal orders. The protestors complied, retreated back over the bridge. On May 31, 2020, in the early hours of the morning, the group meshed with a common gathering area where there were bystanders. The group became quiet until it ransacked a grocery store. Waves of officers moved in and made arrests.
Plaintiffs consist of persons who were separately arrested blocks from the crowd between 2:49 and 4:00am. They brought a lawsuit against the officers involved. The district court issued an opinion with approximately 800 unique rulings. The U.S. Court of Appeals for the Eighth Circuit considered a few on appeal, including a denial of qualified immunity to some officers.
Some of the defendant officers insisted that they were entitled to qualified immunity for the arrests because they had probable cause to arrest anyone in the vicinity of the area in which the protestors were gathered for any of three misdemeanors – participating in a riot, unlawful assembly, and failure to disperse.
The Eighth Circuit stated that officers are entitled to qualified immunity if they have probable cause or even arguable probable cause – a mistaken belief they have probable cause. Here, the officers did not point to any facts that suggested that the individual plaintiffs participated in the riots or unlawful assemblies, or that the plaintiffs were violent. Under that reasoning, the officers lacked actual or arguable probable cause.
The defendant officers contended that the Eighth Circuit previously held that a mass arrest may be constitutional where police have grounds to believe all arrested persons were a part of a “unit” observed violating the law. The court explained that there were no facts to conclude that the plaintiffs moved as a unit here. The area in which the arrests occurred was a popular area filled with bars and bystanders. And the arrests occurred hours after dispersal orders. The court stated that no reasonable officer would have believed that every person at that location and hour violated the law.
The Eighth Circuit ruled that a person’s mere presence, blocks from where the protestors were dispersed, does not clear the bar set for probable cause. It concluded that police cannot enjoy the protections of qualified immunity by alleging the unlawful acts of some justify the arrest of all.
The Eighth Circuit also ruled on various other contentions by both plaintiffs and defendants on appeal. Read the full case: Dunn v. John Doe 1-22, et al.
