United States District Court, E.D. Missouri, Eastern Division
[Copyrighted Material Omitted]
For Mustafa Abdullah, Plaintiff: Anthony E. Rothert, LEAD ATTORNEY, Grant R. Doty, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO; Gillian R. Wilcox, ACLU OF MISSOURI, Kansas City, MO; Grant A. Davis-Denny, Kenneth M. Trujillo-Jamison, Nathan M. Rehn, Thomas P. Clancy, Victoria A. Degtyareva, MUNGER AND TOLLES, LLP, Los Angeles, CA.
For County of Saint Louis, Missouri, Defendant: Michael A. Shuman, LEAD ATTORNEY, ST. LOUIS COUNTY COUNSELOR'S OFFICE, Clayton, MO.
For Ronald Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol, Defendant: James R. Layton, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, Jefferson City, MO; Robert J. Isaacson, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, St. Louis, MO.
MEMORANDUM, ORDER AND PRELIMINARY INJUNCTION
CATHERINE D. PERRY,
UNITED STATES DISTRICT JUDGE.
Plaintiff Mustafa Abdullah seeks a preliminary injunction enjoining certain law enforcement agencies from prohibiting him and protesters in Ferguson, Missouri, from standing still when they are not violating any law. Defendants are St. Louis County and Ronald K. Replogle, in his capacity as Superintendent of the Missouri Highway Patrol. The evidence presented at the preliminary injunction hearing shows that plaintiff is likely to succeed on the merits and that he will suffer irreparable harm unless the injunction is granted. As it was applied in this case, the practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution. Because it is likely that these agencies will again apply this unconstitutional policy to plaintiff and the peaceful protesters he wishes to meet with, I will enter a preliminary injunction.
Nothing in this preliminary injunction prevents defendants or any other law enforcement officers from enforcing the Missouri failure-to-disperse law or any other law. Law enforcement must be able to use the full range of lawful means to control crowds and to protect people and
property from acts of violence and vandalism, including ordering a crowd to move or disperse if law enforcement officers believe the crowd is assembled for the purpose of violence or rioting. Nor does this order prevent authorities from restricting protesting in certain areas or making other reasonable restrictions on the protests' time, place and manner. This injunction prevents only the enforcement of an ad hoc rule developed for the Ferguson protests that directed police officers, if they felt like it, to order peaceful, law-abiding protesters to keep moving rather than standing still.
Findings of Fact
After Michael Brown was shot and killed by a Ferguson, Missouri, police officer on August 9, 2014, crowds of citizens gathered near the shooting site and at other locations in Ferguson. Some people in the crowd had come to protest; others had come for other reasons, such as praying or bearing witness or providing food and water to those who were protesting. Most people were assembled peacefully and were not there to commit any acts of violence.
During the nights following the shooting, however, and for several weeks afterward, the crowds became unruly and some in the crowds became violent. On Sunday night, August 10, a Quick Trip gas station and convenience store was looted and then burned to the ground. On other nights more businesses were looted and suffered extensive property damage. Some in the crowds threw rocks, bricks, water bottles and other objects at the police. Some in the crowds fired guns in the air and at the police; some threw Molotov cocktails; some kicked or otherwise damaged police vehicles. A number of people were injured. One night police found an unconscious person who had been severely beaten by someone in the crowd. On many occasions the people in the front of the crowds were not committing acts of violence; objects were thrown from those standing farther back in the crowd, where police could not identify them.
A number of police departments, including the St. Louis County Police Department and the Missouri State Highway Patrol, were called in to assist the Ferguson Police Department. Law enforcement authorities used many methods to try to control the crowds and prevent further violence, including using tear gas and smoke canisters. Not surprisingly, the violence generally began after dark, and crowds during the day were mostly peaceful.
On August 14 Missouri Governor Jay Nixon ordered the Missouri State Highway Patrol to take charge of law enforcement in the area. On August 16 Governor Nixon signed an executive order declaring a state of emergency and officially ordered other law enforcement agencies to assist the Patrol when requested. Once the Highway Patrol was in control, it formed a unified command structure with other police departments, including the St. Louis County Police Department. That group established a temporary command center about a mile from the center of the protest activity.
During the night of Sunday, August 17, a large and unruly crowd began marching toward the law enforcement command center, with some in the crowd announcing that they were going to overrun the command center. Although that crowd was ultimately turned back, the following day the unified command structure decided on the strategy that is at issue in this lawsuit.
The strategy adopted on August 18 called for law enforcement officers to tell protesters that they had to keep moving and that they could not stand still on the
sidewalks. This was communicated to the officers at the regular roll calls, and the officers were told to use discretion, but were not told any particular circumstances or factors that they should consider in using that discretion.
Plaintiff Mustafa Abdullah works as a program associate for the American Civil Liberties Union, and part of his job duties include observing protest sites such as the one in Ferguson and passing out " Know Your Rights" cards. He also acts as a legal observer for the ACLU and attempts to engage in conversations with people at the demonstrations to listen to their stories and understand their concerns. He sees part of his role as facilitating communications between law enforcement officers and the public, and he encourages people to follow the directions of the police even if he believes the instructions are problematic. Before the keep-moving strategy began, Abdullah had visited the protest site and been able to talk to groups of people (while standing still) about their rights, and he wants to continue doing that, without being forced to move. He testified that he has been involved in many community meetings as part of his work but had never before been forced to have a meeting while walking. He is not a protester himself, has no desire to engage in violence or civil disobedience, and does not want to be arrested.
After the ACLU received reports that police were not allowing people to stand still on August 18, plaintiff went to the area. As soon as he began talking to people on the sidewalks, he was approached by St. Louis County police officers and told he must keep moving and could not stand still. One person asked plaintiff to join her in prayer, and police said they could pray while they were walking. The people plaintiff was talking to were not engaged in any violence. This happened in the daytime, and there was not a large crowd present. Plaintiff testified that after being told repeatedly to keep moving or be arrested, he left the scene because he did not want to be arrested.
Plaintiff brought this suit later on August 18, and I held a hearing on his motion for a temporary restraining order that same day. At the hearing the defendants provided evidence that earlier that afternoon they had established an alternate place where protesters and others could gather and express themselves without ...