A closer look at the police response to the Jason Stockley protests
Inside the “squishy” legal realities of protest-related arrests in St. Louis
Update, November 15, 2017: A federal judge extended protections to St. Louis protestors in response to a suit filed by the ACLU of Missouri. In her order, U.S. District Judge Catherine Perry restricted St. Louis police from declaring an “unlawful assembly” and enforcing it—through arrests, employing pepper spray, and other tactics—against demonstrators “unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence.”
Perry wrote that when police officers give dispersal orders, they must let demonstrators know what area they need to leave, what chemical will be used to enforce the order, and police must allow a route for demonstrators to leave the area.
On the evening of September 15, architect Andrew Jensen went to the protest in the Central West End. He wanted to hear protesters’ message following the acquittal of former police officer Jason Stockley in the shooting of Anthony Lamar Smith.
An Eagle Scout, the 35-year-old father of two wore protective gear, including swim goggles and a dust mask. Jensen was not a frequent protester and had never attended an event where police were wearing riot gear, like the ones who monitored the neighborhood that night.
He packed a first aid kit, thinking Maalox and water might come in handy for treating pepper spray. Later, in a written account, he’d note, “If I were to come across a bleeding cop who had no backup, I would stabilize them and help them leave the area.”
Instead, he ended the night in custody.
At one point, Jensen left the protest on his bicycle to scout alleys, so he could leave if necessary. When he returned, protesters had gathered in front of Mayor Lyda Krewson’s house. That’s when some people began throwing bricks and paint, while some protesters tried to call them away.
Jensen didn’t see this, though. Instead, he saw a man dragged away by friends after officers used pepper spray. He went to administer aid. “The next thing I know, my bike is shoved out of my hands and an officer says to me, ‘Put your hands behind your back and get on the ground,’” he says.
Jensen says he didn’t hear an order to disperse. “The first thing anybody said to me was, ‘Put your hands behind your back, and get on the ground.’” Jensen refused, asking what crime he had committed. Then, he says, officers surrounded him. He says he offered to leave but was pepper sprayed, shoved on top of his bike on the ground, and held down.
“I was ordered to disperse at that point, when they had already scattered my possessions and surrounded me,” he says. “I had no realistic way to leave.” Officers pulled off his goggles and mask to spray him again, he says, then picked him up and threw him down again. He recalls his right arm being pinned under his chest. “When they told me to put both arms behind my back, I physically couldn’t,” he says. “I told them this.” He was pepper-sprayed again, he says, then zip-tied and pepper-sprayed a fourth time.
He couldn’t see anything as he was transported to jail, though others told him they experienced similar arrests.
In a later press conference, interim police chief Lawrence O’Toole said, “Orders to disperse were given numerous times. Tear gas was deployed after officers were assaulted with bricks and bottles.” Police also used PepperBalls, he added. “The St. Louis police department will continue to ensure that our citizens are able to exercise their constitutional rights peacefully. Our officers have been very tolerant and used great restraint. However, this evening we had some incidents.” O’Toole noted that “many protesters were peaceful,” but that some “agitators” committed property damage and injured police officers throughout the night.
Two nights later, 49-year-old Anthony Stewart, a graphic designer and former Marine, had a similar experience. He was going to meet a friend at Lumiere Place when he saw a crowd gathered downtown. “I couldn’t tell if it was just a bunch of people standing there,” he says.
“I understand protesting, but I’m not one to go actively engage like that,” he later said. “I think there are other ways to get things done.”
Officers blocked his route along Washington Avenue, and one told him that he couldn’t be there. When he explained that he was just trying to leave, the officer told him to keep walking down the street—but Stewart found his way blocked again. Suddenly, he was pepper-sprayed and arrested. Around him, he saw other seeming bystanders arrested as well—he watched as one man stepped out of a Lyft ride and was promptly arrested.
“I don’t know what happened,” he recalls. “How did it go from zero to 60?”
He doesn’t recall hearing a warning and still isn’t sure what spurred the arrests.
Stewart spent the next 16 hours in jail, covered in pepper spray. He shared a cell with two people who told him they were leaving their apartment when they were arrested. Those in jail were packed together, rolled up under seating or near toilets, in pain and coughing. The conditions exacerbated the effects of the chemicals, he says. “We all had pepper spray still on us,” Stewart recalls. Someone told him that the arrestees were supposed to see a nurse, he says, but that didn’t happen.
Ultimately, he was charged with failure to disperse. “How can I disperse if you have everything blocked off?” he asks. No one stopped him as he was walking on Washington, he adds, and officers had directed him to where he was arrested. “Why let me walk right into basically a trap?
“I’ve been in crazy situations—I was in the Marine Corps,” he adds. “It’s crazy that it should happen here, at home, when I’m just walking down the street.”
On Twitter, the St. Louis Metropolitan Police Department’s account of the night proceeds from tweets about peaceful protests to mentions of property damage, debris thrown at officers, and an “unruly crowd.” At 7:13 p.m., police tweeted, “Officers continuing to give multiple orders to disperse in Downtown #STL. Those who do not disperse are subject to arrest.”
At 9:22 p.m., police tweeted that multiple warnings to disperse were given near Washington and Tucker, where Stewart says he was arrested.
At a press conference the next day, O’Toole said, “I’m proud to tell you that the city of St. Louis is safe, and the police owned tonight.
“Once again, a group of criminals set out to break windows and destroy property. Tonight, those criminals are in jail. Tonight, we made more than 80 arrests,” he added. “People setting out to do damage are being arrested, and these criminals we’ve arrested should be held accountable and prosecuted to the fullest extent of the law. We’re in control. This is our city, and we’re going to protect it.”
According to SLMPD press releases, none of the individuals arrested were charged with property damage. One was charged with resisting arrest and failure to disperse, another was charged with peace disturbance in the first degree, and a third was charged with “operating bike on sidewalk” and “driving wrong way on street.” The rest were charged solely with failure to disperse.
A Closer Look at the Allegations
During the three weeks since Stockley’s acquittal, more than 350 individuals have been arrested by city and county police around protests. The SLMPD has processed and reported the majority of those arrests. Several lawsuits have been filed against city police detailing experiences similar to Jensen’s and Stewart’s.
The ACLU filed a lawsuit and a followup motion that includes “more than 20 witness statements [that describe] in detail unlawful and unconstitutional behavior against people by officers.” The witnesses claim that the police targeted individuals who were recording the events; that officers did not give adequate warning before ordering dispersal, using chemical agents, or making arrests; and that police used force against peaceful, unarmed protesters. The lawsuit alleges that the SLMPD violated free-speech rights and due process and that police illegally detained people and used chemical agents without justification.
Police and the mayor’s office did not respond to requests for comment regarding the lawsuit.
According to legal observer Steven Hoffmann’s declaration to the ACLU, when he approached an officer during a protest to question why warning was not given before chemicals were deployed, the officer replied, “I don’t need to give you a f—king warning.”
Is warning necessary?
Representatives for arrestees Maleeha Ahmad and Alison Dreith contended that police conduct was unwarranted during a hearing on October 19 regarding whether a judge will grant the ACLU’s request for a preliminary injunction that would place more stringent restraints on police conduct. Both sides referred to SLMPD’s written use-of-force guidelines. Whether police conduct contradicted internal policy is a key point in the ongoing legal proceedings.
Guidelines regarding the “deployment of chemical agents for crowd dispersal” note that chemical agents “will not” be used “for the purpose of frightening or punishing individuals for exercising their constitutional rights.” If they are used “to disperse groups engaged in non-criminal activity,” several guidelines must first be met:
- “The incident commander ensures that clear and unambiguous warnings are issued stating that chemical agents will be utilized, in conjunction with a statement about why the area is being cleared.”
- “Individuals are provided sufficient opportunity to heed the above-mentioned warnings and exit the area.”
- “The impact of chemical agents on individuals who are complying with lawful law enforcement commands is minimized.”
- “And ensuring and announcing a means of safe egress from the area that is available to individuals.”
The same section, however, notes that these provisions don’t apply to “situations that turn violent” when individuals pose a threat of “harm to persons, or of damage to property,” or situations in which “law enforcement officials must defend themselves or other persons or property against such imminent threats.”
During the hearing police Lt. Timothy Sachs, a supervisor of the civil disobedience unit, discussed these policies in depth.
Sachs stressed that not all pepper mace products are covered by this “chemical munitions” policy. In court, the judge and prosecutor asked multiple questions in trying to clarify the department’s policies for deploying various chemical agents. While testifying, Sachs misstated the policy and corrected himself when questioned about the policies’ details.
According to police policies, the use of the same chemical sometimes requires warning and other times does not. Asked why some types of pepper spray are not covered by the chemical agent policy while others are, Sachs replied, “I don’t know the reasoning behind it.” He added, “It’s the same liquid.”
If an individual is compliant after being zip-tied, then pepper spray should not be used, Sachs testified, and that would not be proper use of force. But if an arrestee continued to kick an officer, to “engage in an assault,” or to resist arrest, it would justify the use of pepper mace against a restrained individual, Sachs said.
According to police guidelines, because pepper mace “may only be used to overcome resistance to an officer’s lawful authority, any arrest in which pepper mace is used will be classified as ‘Resisting Arrest.’” When Sachs confirmed this policy—saying, “Anyone that is pepper-sprayed is charged with resisting arrest”—one man observing the court proceedings said, “That’s not true!”
During the first weekend following the Stockley acquittal, city police reported 10 charges of resisting arrest. Reports of pepper spray use were much higher among the 155 people arrested that weekend. Several individuals testified that they were sprayed but not arrested.
Sachs testified that some protesters were wearing goggles and masks, “indicating to me that they wanted some sort of confrontation.” During cross-examination, he was asked, “Surely no one could provoke you to use chemicals by wearing something?” He responded: “Yes.” Sachs was later asked, “Were [police] helmets indicating that they were looking for a confrontation?” He replied that he couldn’t speak to that.
Throughout his testimony, Sachs maintained that he only witnessed a few uses of handheld pepper spray and that all uses of force and chemical munitions he saw fell within SLMPD’s guidelines.
Is medical treatment necessary?
The hearing also addressed whether police should provide medical treatment for those who are pepper-sprayed. The department’s chemical munitions policy does not include specific instructions for pepper spray treatment, but the pepper mace policy notes that “an individual exposed to pepper mace will be treated for the exposure as soon as he/she becomes manageable.” Procedures include taking the person to a place where they can wash their face and eyes with cold water. “If water is not available,” the policy notes, “the person should be exposed to fresh air.” If exposure to pepper spray is “extreme,” the order instructs officers to immediately take the person to the City Justice Center and “allow [them] to take a cold shower.”
Sachs and Sgt. Matthew Karnowski testified that officers did not administer aid to protesters affected by pepper mace. Sachs said standard procedure is to expose sprayed individuals to fresh air only if they are having “continued” breathing problems.
In 1976, the U.S. Supreme Court described guidelines for Eighth Amendment violations against prisoners in Estelle v. Gamble. A subsequent court decision, Ellis v. Butler, noted that “a medical condition need not be an emergency in order to be considered serious under Estelle.” In the past, this has been interpreted to mean that not providing medical treatment for exposure to chemical agents can be a rights violation.
Failure to Disperse
On Thursday, Karnowski testified that “numerous warnings,” both verbal instructions and formal dispersal orders, were given on September 15 and 17. Protesters say they heard no such warnings.
Sachs also said that multiple orders to disperse were given throughout the night of September 17, but he does not remember the exact “verbiage” of those orders. Sachs said that people were told to leave and warned that chemical agents would be deployed but is not sure whether they were told how to leave or a reason for dispersal. “It’s the discretion of the sergeant [giving the order],” he said.
When police made mass arrests on September 17, Sachs said, he could personally hear at least five dispersal orders being given over loudspeaker or through radio transmissions. “You couldn’t hear the orders themselves” from three or four blocks away, he recalled, but you could hear the noise.
Many protesters—as well as bystanders who were caught in the mass arrests on that Sunday night—say they did not hear such orders.
What is dispersal?
During the hearing, Karnowski and Sachs hesitated to specify how a civilian should comply with an order to disperse. Karnowski suggested that people apply a “common sense approach” and “leave the area.” Asked whether going a few blocks away was sufficient, he responded, “I guess that’s a pretty subjective question.”
Sachs also struggled to answer similar queries. “I couldn’t give you ‘what is enough,’” he said. “I don’t know.”
“How is a person on the street supposed to know?” he was asked.
“I don’t know,” he replied.
Asked why police made mass arrests, Sachs said that once people did not disperse after multiple instructions, “they were no longer free to leave.” He stated that people were arrested for blocking traffic and for causing “a problem.”
“We didn’t know what they were going to do,” he said. “The biggest thing was they wouldn’t disperse.”
What is an effective warning?
The legal definitions surrounding dispersal processes and unlawful assemblies are “squishy,” says criminal justice attorney Justin Farishon, who is not involved with the ongoing lawsuits but represented multiple individuals arrested during the Ferguson protests.
“All [officers] have to show is there was an unlawful assembly and that [they] gave an order to disperse, and that this person didn’t do it,” explains Farishon, who says that’s likely why so many people have been charged with failure to disperse. On the first weekend following the Stockley verdict, it was the sole charge levied against 83 percent of arrestees in the city.
The law is ambiguous when it comes to warnings. “Without knowledge of the order to disperse, you cannot commit the crime of failure to disperse,” says Farishon, adding that there are no “specific parameters” to determine what constitutes an effective order to disperse.
The decision must be made in court. “If the police are on bullhorns and they’re shouting, a protester can argue that they never heard the order to disperse,” he says. A judge must decide whether it’s more likely that police were broadcasting loudly enough or the person couldn’t hear officers over the noise.
“You certainly have to be given a reasonable opportunity to comply with the order,” he says. The charges become less certain for cases in which protesters say that they were told to disperse after being restrained, that they were told to disperse towards blocked roads, or that they were arrested immediately after a dispersal order.
What is an unlawful assembly?
An assembly must also be unlawful, though Farishon says “unlawful assembly” is also “an undefined term.” In Farishon’s opinion, police have taken an approach that suggests “whatever we say is an unlawful assembly means it’s an unlawful assembly.”
At the hearing, Sachs confirmed that the department does not have written guidelines for declaring an unlawful assembly and that any officer can declare it according to his or her own discretion if “criminal activity” is occurring.
While blocking traffic or throwing bottles might be considered unlawful assembly, Farishon notes that “the group of people doesn’t have to be unruly or even, per se, breaking a law.”
So what is the difference between protesters who block streets and don’t get arrested and protesters who are told their assembly is unlawful?
“I don’t believe there is any line in the sand,” Sachs said.
The ACLU Lawsuit, By the Numbers
From the ACLU’s 23 eyewitness declarations, several allegations emerge: that chemicals were used against them, that few civilians received first aid, that observers recording police conduct were arrested, and that police injured people who were on the ground and compliant.
The majority of witnesses were protesters, but several of those included in the suit were bystanders. More than half of the ACLU witnesses were not arrested, including Pi Pizzeria owner Chris Sommers and Air Force lieutenant Alex Nelson. Three of the witnesses claim to have been arrested despite not participating in protests. Another four say they participated but were attempting to leave when officers either arrested them or used chemical agents near them. Two individuals wearing green hats to identify themselves as legal observers were sprayed, and one was arrested. One individual who was arrested was a filmmaker recording the events; in all, eight people say they were recording police actions while arrested.
In the ACLU’s request for a preliminary injunction, 21 people said officers used chemical agents against them, though it was not always clear which chemicals were used. Two witnessed the use of chemical agents without experiencing them.
Just two of the 23 witnesses said they heard warnings before police used pepper spray or began arresting people. One says he heard a dispersal order and left—but was later arrested nearby without notice. The other says she did not have time to leave after the order to disperse was given.
Most of the witnesses stressed that they were unarmed, attempting to obey police orders, not committing property damage, and posed no safety threat.
Stewart’s experience in jail reminded him that “anything can happen to anyone.” If he hadn’t contacted the advocacy group that paid his bond, he worries that no one would have known he was arrested. “I would probably still be there,” he says. He’s now planning to work with ArchCity Defenders to form a case.
During the hearing, Sachs maintained that he did not witness any use of excessive force or other forms of police misconduct. Over the next few weeks, U.S. District Judge Catherine Perry will decide whether or not to grant the ACLU’s request for additional constraints to be placed on police conduct until their full case is heard in court. Several other cases have not yet been heard.
For Jensen, the experience has changed his perspective. “I wasn’t a committed member of Black Lives Matter until [police] pepper-sprayed me,” he says. “I wanted to listen and see if they had a point. And the police did a very good job of making their point for them.”