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In ‘kettling’ case, 8th Circuit rules against St. Louis — again

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St. Louis Public Radio
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From left, attorneys Connie McFarland-Butler, Bevis Schock and Nicole Gorovsky

Earlier this year, the 8th U.S. Circuit Court of Appeals ruled against the City of St. Louis — but the city wouldn’t take no for an answer.

The city asked the 8th Circuit to rehear the case with the full panel of judges, asking them to revisit the 3-0 appellate decision that allowed the suit filed by a retired Air Force lieutenant colonel to proceed. Brian Baude had been swept up in the mass “kettling” arrests executed by St. Louis police in September 2017, zip-tied and detained for 14 hours. The city argued that “qualified immunity” for police officers meant the suit should be dismissed.

That stance angered Baude’s attorney, Javad Khazaeli. He argued that the city’s appeal could expand the definition of qualified immunity, which shields officers from lawsuits in all but egregious cases and said that advocacy clashed with Mayor Tishaura Jones’ public rhetoric about reforming the police department.

The 8th Circuit last week denied the city’s request to have the full panel of judges rehear the case. Khazaeli said that the city has told him it will now appeal to the U.S. Supreme Court.

Speaking on St. Louis on the Air’s Legal Roundtable Thursday, attorney Bevis Schock said he doesn't expect the Supreme Court to hear the case. “I think the chance of this going forward is zero,” he predicted.

Even so, Schock suggested criticism of Jones’ administration is unwarranted.

“Every civil rights defense counsel battles every single step of the way, to the bitter end,” he said. “We take on these cases telling the clients it takes four or five years, at least, to win. … I don't see why any attorney would ever assert that the other side was in some way acting in bad faith or wrong to assert every defense they have.”

Legal Roundtable discusses St. Louis’ fight over qualified immunity, missed deadlines and more

Schock also stressed Jones’ fiduciary responsibility to her constituents. “I'd also add that the mayor has a duty to preserve the fiscal health of the city,” he said. “And that involves not paying people who sue the city as much as possible. That's her job.”

Added Connie McFarland-Butler, who owns her own law firm in Florissant, “I think that the city counselor’s office has to take into account the precedent that it would be setting by simply not defending itself aggressively in this case — and you have another 13, 14 plaintiffs who have lawsuits pending regarding this matter.”

But Nicole Gorovsky of Gorovsky Law said she understands why some Jones supporters question the city’s tactics. She said the city’s position also raises serious red flags.

“First, one of the arguments from the city for rehearing en banc was that subordinates shouldn't have to independently verify,” she said — meaning that if supervisors tell an officer there's probable cause to arrest someone, they shouldn’t be liable for making the arrest. But, she added, in another point of appeal, the city said supervisors shouldn’t be liable since they didn’t actually touch the people being arrested. “When you put those two things together, and you've got something that's really problematic — the police subordinates aren't liable, the supervisors aren't liable.”

Gorovsky cited other cases involving qualified immunity across the U.S. “St. Louis is not the only place where this is happening. And I think this is going to be an issue around the country.”

The attorneys also discussed whether U.S. Sen. Josh Hawley has the right to use a journalist’s photo on coffee mugs and other fundraising materials without permission. Hawley has invoked “fair use” as allowing him to utilize the photo — but the attorneys didn’t buy his argument. They noted he isn’t commenting on or critiquing the photo, but rather using it in fundraising.

“The fair use doctrine indicates that copyrighted material may be infringed upon for a limited purpose if that purpose is for the public good or benefit,” said McFarland-Butler. “In this instance, the photograph is being used for fundraising political purposes. I don't see how it falls within the fair use doctrine.”

Schock said he doubted Politico, which owns the photo, would sue Hawley. Even so, he believes that would be a solid case.

He added: “You gotta hand it to Josh Hawley. Here's something that he did that's part of an event that's universally condemned. And his theory is, ‘I'm going to turn it around and make it good for me.’ I respect his chutzpah, his cleverness, but I'm with Connie and Nicole, I think he's gonna lose.”

Editor’s note: During an on-air discussion of AG Eric Schmitt’s case against the Lee’s Summit school district, we wrongly indicated that the judge had granted default judgment to the district. The district has submitted a proposed order, but the judge has not signed it. We regret the error.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Emily Woodbury, Kayla Drake, Danny Wicentowski and Alex Heuer. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Sarah Fenske joined St. Louis Public Radio as host of St. Louis on the Air in July 2019. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.

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