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TV Journalists Who Were Tear-Gassed in Ferguson May Proceed to Trial

By Danielle N. Twait

Three former Al Jazeera America television journalists filed a federal civil rights action against St. Charles County, Missouri, and St. Charles Deputy Michael Anderson alleging they had been purposefully shot at and tear-gassed during their coverage of protests in Ferguson, Missouri on August 13, 2014, following the shooting death of teenager Michael Brown by a Ferguson police officer.

In Quraishi, et al v. St. Charles County, Missouri, et al, No. 4:16-CV-1320 (E.D. Mo.), the court granted the County's motion for summary judgment, but denied Defendant Anderson's motion for summary judgment, ruling that a jury must determine whether the evidence supports a finding that Anderson violated Plaintiffs' First and Fourth Amendments.

Background

Following the fatal shooting of Michael Brown in Ferguson, Missouri, on August 9, 2014, the Al Jazeera America television news network (which at the time was the US branch of the international network) sent veteran TV journalists Ash-har Quraishi, Marla Cichowski, and Sam Winslade to Ferguson to report on developments in the Brown killing, including the ongoing protest activities. After spending a day reporting on the protests in Ferguson, the Al Jazeera America news crew parked their SUV more than a mile away from where the earlier protests had occurred. Even though the Plaintiffs were nowhere near any illegal activity, officers shot a rubber or similar bullet at Plaintiffs without warning. Plaintiffs immediately identified themselves as members of the news media. Despite having identified themselves as journalists, Anderson then used a shoulder-fired rifle to fire a tear gas cannister directly at Plaintiffs. After the tear gas cleared—and while Plaintiffs were attempting to retrieve their equipment—Plaintiffs were again shot at by a police officer using a rubber or similar bullet.

Unaware of the fact that the SWAT teams' attack on Plaintiffs was filmed by several other news crews, St. Charles County repeatedly denied any attacks by the SWAT Team on the Plaintiffs and the SWAT team members continued to make false statements regarding the events that occurred that night.

The Lawsuit

Plaintiffs filed suit against St. Charles County, Missouri and Deputy Anderson. In their First Amended Complaint, Plaintiffs asserted seven causes of action. Counts I and II alleged that Anderson and St. Charles County violated Plaintiffs' First Amendment rights. Counts III and IV alleged that Anderson and St. Charles County violated their Fourteenth Amendment rights to due process. Counts V and VI alleged that Anderson and St. Charles County unlawfully seized and detained Plaintiffs in violation of the Fourth Amendment. Finally, Count VII alleged that Deputy Anderson committed common law battery against Plaintiffs.

The Defendants moved for summary judgment on all counts. In seeking summary judgment as to Plaintiffs' First Amendment claim, Anderson argued that the Plaintiffs were not engaged in a protected activity. The Court found Defendants' contention "absurd" because the undisputed facts showed that Plaintiffs were engaged in newsgathering—a clearly protected activity under the First Amendment. The Court further held it could not determine as a matter of law Anderson's motive for firing the tear gas round at Plaintiffs, finding that there were "significant and multiple genuine issues of material fact present." Specifically, the Court noted that "the video recordings of the incident, from various vantage points, raise doubt about Deputy Anderson's version of events."

These various videos were key to the Court's ruling. As shown in this map used by Plaintiffs in their response to the summary judgment, you can see that numerous cameras captured the assault on Plaintiffs.

map

Importantly, none of the videos showed any rioting (or even protests) occurring in the area and—equally important—none of the videos supported Anderson's claim that he had issued a warning to Plaintiffs before tear-gassing them.

In Count III, Plaintiffs asserted that Defendant Anderson illegally seized them in violation of the Fourth Amendment when he fired tear gas directly at Plaintiffs "intending to terminate or restrain their freedom to remain in their location and continue their newsgathering and reporting." In its ruling the Court agreed with Plaintiffs and held as a matter of law that "[f]iring tear gas, pepper spray, or other chemical agents at someone can constitute a seizure under the Fourth Amendment." The Court further held there was a genuine issue of facts as to whether Defendant Anderson's use of tear gas was unreasonable.

Defendant Anderson argued that even if Plaintiffs could establish constitutional violations, Plaintiffs' claims fail as a matter of law on the grounds of qualified immunity. In rejecting this argument, the Court held summary judgment on this issue is "not appropriate, because there are significant disputes regarding material facts precluding summary judgment for Plaintiffs' First and Fourth Amendment claims against Anderson."

Finally, Anderson argued that Plaintiffs failed to state a claim for battery. For the same reason as the other claims, the Court denied summary judgment finding "[t]here is a genuine dispute of material fact regarding Anderson's intent; therefore, this claim must go before a jury."

In response to Plaintiffs' Fourteenth Amendment claim for violation of their right to due process regarding Anderson's deployment of tear gas at them, the Court granted Defendants' summary judgment on this claim, reasoning that Plaintiffs' claims "are best reviewed under the First and Fourth Amendment jurisprudence." The Court also granted St. Charles County, Missouri's summary judgment on all of Plaintiffs' claims against it, finding Plaintiffs failed to establish a policy or practice on the part of the County to violate journalists' First Amendment rights.

Defendant Anderson recently filed an interlocutory appeal with the Eighth Circuit on the question of qualified immunity.

Plaintiffs are represented by Bernard J. Rhodes of Lathrop Gage LLP; Defendants are represented by Holly E. Magdziarz, Beverly E. Temple, Rory P. O'Sullivan, and John R Watson from the Office of the St. Charles County Counselor

 
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