Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests
Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests

The US Court of Appeals for the Eighth Circuit ruled Thursday that a SWAT team member must face First Amendment and battery claims from reporters he tear-gassed while they were covering public unrest in Ferguson, Missouri, after the fatal shooting of Michael Brown in 2014.

SWAT team member Michael Anderson claims that the reporters had been ordered to disperse before he deployed the tear-gas. He also asserts that there were projectiles launched from the reporters’ area, leading him believe that there was “an imminent threat to safety.” He claims that he had “arguable probable cause” to believe that the reporters were “refusing to disperse, obstructing officers performing their duties, and interfering with officers in a way that impacted officer safety.” If this mistaken belief was “objectively reasonable,” Anderson would receive qualified immunity.

However, in its opinion the Eighth Circuit implied that this version of the facts is “blatantly contradicted” by video footage from the reporters, Ash-har Quraishi, Marla Cichowski, and Sam Winslade of the Al Jazeera America news network, as well as at least three other videos. The ruling affirms the US District Court for the Eastern District of Missouri’s decision to deny Anderson’s motion for summary judgment and allow the plaintiffs to proceed:

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. … Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

The video also contradicts Anderson’s claim that the Al Jazeera reporters were not engaged in activities protected by the First Amendment. The video supports the reporters’ claim that they were “singled out” by Anderson. “A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible,” the court said.

The court also ruled in favor of the plaintiffs regarding their state-law battery claims, noting that it was possible that Anderson acted with “more force than [was] reasonably necessary” to disperse the reporters, given that they “were not engaged in unlawful activity.” However, the court denied the reporters’ Fourth Amendment claims because it has not been “clearly established” that tear-gassing amounts to a “seizure.”

The Eighth Circuit remanded the case to the district court for further proceedings.