In September 2017, Brian Baude was a lieutenant colonel in the Air Force National Guard. He lived in downtown ºüÀêÊÓƵ, making for an easy commute to Scott Air Force Base in Illinois.
On the night that widespread protests broke out in the city after a judge found former police Officer Jason Stockley not guilty of murdering a Black motorist, Anthony Lamar Smith, Baude left his apartment to record the proceedings and protect his community.
That decision would have devastating consequences. Like many ºüÀêÊÓƵans — protesters, residents and reporters — he got caught up in the aggressive “kettling†technique executed by police that night. An advancing wall of police trapped protesters in the intersection of Washington Avenue and Tucker Boulevard.
Citizens were thrown to the ground, pepper sprayed and manhandled by police, who would later famously chant, mimicking protesters: “Whose streets? Our streets.â€
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Like many citizens caught up in this unprecedented police action, Baude sued, alleging a violation of his First, Fourth and 14th Amendment rights. The city, as it has in most of the other civil lawsuits, defended itself and its officers, citing the legal concept of “qualified immunity,†which gives police officers and their employers broad protections unless their specific action has previously been found to be a civil violation.
In January, Baude, and potentially most of the other litigants involved in that infamous spectacle, won a huge victory, when a three-judge panel on the Eighth Circuit Court of Appeals ruled that qualified immunity shouldn’t apply in the case.
“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.â€
The ruling should pave the way for the lawsuit to move forward or for the city to smartly settle it, considering how embarrassing and expensive the police overreach from that night — including beating up one of its own Black officers — has been.
But that’s not what happened. This week, the city didn’t just appeal the case to the full Eighth Circuit, it signaled its intention to take the case all the way to the U.S. Supreme Court.
“Rehearing in this case is required because the panel opinion raises questions of critical national importance in the context of policing mass civil disorder by analyzing defendants’ claims of qualified immunity at a high level of generality by reason of their participation in the mass arrest,†said the brief, issued under the name of Mayor Tishaura O. Jones’ new city counselor, Sheena Hamilton.
Baude’s attorney, Javad Khazaeli, describes the brief in one word:
“B±ð³Ù°ù²¹²â²¹±ô.â€
Khazaeli endorsed Jones’ run for mayor, in part because she promised a new way of doing business in the city, specifically as it relates to holding police accountable. He was heartened when, after she was elected, her chief of staff, Jared Boyd, indicated the city would handle police lawsuits differently.
The new city counselor, Boyd told ºüÀêÊÓƵ Public Radio last year, would redefine “. ... It’s not to say we shouldn’t be cognizant of city resources, but that can’t be the only thing.â€
Jones’ office says that is still the case.
“In mediation (of the Baude case), the city greatly increased its settlement offer — beyond even comparable cases — and have not received a response from opposing counsel,†says Nick Dunne, spokesman for Jones. “The city will continue to implement the Ahmad consent decree; since the decree was issued, neither the city or (police department) have been sued regarding protest cases.â€
The consent decree was reached in the case of another protester from September 2017, after a federal judge significantly limited police actions during protests.
ºüÀêÊÓƵ University Law Professor Brendan Roediger, who has played an active role in police accountability measures in the past decade, says the case puts the mayor, and her city counselor, in a tough spot.
“Reasonable people would agree that the city counselor’s job is to represent city employees and that includes police officers, and that will sometimes mean that the city counselor’s office is going to say things different than the mayor is saying publicly. That’s OK,†Roediger says.
“But there is a big difference between that and asking one of the more conservative circuits in the United States to take an even more conservative position on qualified immunity. The policy argument that it’s OK for a city police officer to do pretty much anything during a protest is different. This is a very policy-based motion.â€
Dunne says the city is not seeking an expansion of qualified immunity. But lawyers who have read the brief in the Baude case say that’s exactly what would happen if the court rules in the city’s favor. That could produce political repercussions beyond the important issue of police accountability.
“What the city counselor is doing could have serious consequences for transformation justice efforts throughout the country,†says the Rev. Darryl Gray, a local police accountability activist who is still facing his own charges from the city related to a different protest. “It’s a slap in the face for activists, who literally, put their safety and even lives on the front line for police accountability.â€
The legal filing has people who have traditionally been in Jones’ camp concerned that when it comes to police accountability, at least in the courts, the new boss looks very much like the old boss.
“This is a request for expansion within the realm of protest policing,†Roediger says, “and that’s dangerous.â€