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Quraishi v. St. Charles County

United States District Court, E.D. Missouri, Eastern Division

June 10, 2019

ASH-HAR QURAISHI, et al., Plaintiffs,
v.
ST. CHARLES COUNTY, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiffs, who are journalists, filed this action against Defendants alleging violations of their constitutional rights during Plaintiffs' news coverage of protests in Ferguson, Missouri on August 13, 2014 following the shooting death of teenager Michael Brown by a Ferguson police officer. This matter is before the Court on Defendants' Motion for Summary Judgment and Supplemental Motion for Summary Judgment. [Docs. 53, 76.]

         Procedural Background

         Plaintiffs Ash-har Quraishi, Marla Cichowski, and Sam Winslade filed this action against St. Charles County, Missouri; Deputy Michael Anderson of the St. Charles County Police Department, and two unidentified John Doe Defendants. The Court granted Plaintiffs' request to dismiss the John Doe defendants on July 27, 2017. [Docs. 51, 52.] Plaintiffs filed a First Amended Complaint on December 18, 2017 and that complaint is the subject of this memorandum and order. [Doc. 64.] Defendants' Motion for Summary Judgment and Supplemental Motion for Summary Judgment are now fully briefed.

         In the First Amended Complaint, Plaintiffs present seven claims. Counts I and II allege that Deputy Michael Anderson and St. Charles County violated their First Amendment rights to gather information about matters of legitimate public concern as members of the press. Counts III and IV allege, alternatively, that Deputy Anderson and St. Charles County violated their Fourteenth Amendment rights to due process. Counts V and VI allege that Deputy Anderson and St. Charles County unlawfully seized and detained Plaintiffs in violation of the Fourth Amendment. Finally, Count VII alleges that Deputy Anderson committed battery against Plaintiffs. All of the claims against Deputy Anderson are filed against him in his personal or individual capacity.

         Standard of Review

         A party may move for summary judgment, identifying each claim or defense on which summary judgment is sought. Fed.R.Civ.P. 56(a). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civil P. 56(a). “A dispute about a material fact is ‘genuine' only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Herring v. Can. Life Assur. Co., 207 F.3d 1026, 1028 (8th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable controversy. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004). Self-serving, conclusory statements without support are not sufficient to defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).

         Discussion

         A. Admissible Evidence in Summary Judgment Briefing

         The Court will first address the parties' dispute regarding some of the evidence presented to support and oppose Defendants' summary judgment motions. “A district court enjoys wide discretion in ruling on the admissibility of proffered evidence.” U.S. Salt, Inc. v. Broken Arrow, Inc., 563 F.33d 687, 689-90 (8th Cir. 2009). The two primary issues that require the Court's attention are Plaintiffs' counsel's declarations and Defendants' affidavits on summary judgment that contradict responses to a Missouri Sunshine law request.

         Rule 56(c) states

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purpose of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited to do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). A declaration that does not satisfy these requirements can be disregarded. See Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 758 (8th Cir. 2015). “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P 56(c)(2). Local Rule 4.01(e) provides as follows:

A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.

         B. Mr. Rhodes' Declarations

         Plaintiffs' counsel Bernard Rhodes submitted two declarations in opposition to Defendants' Motion for Summary Judgment. He also attached several exhibits to these declarations. The first declaration includes Exhibits A through Y. Exhibits A-D consist of correspondence from Mr. Rhodes to St. Charles County's custodian of records and Defendants' legal counsel Holly E. Ragan. Exhibits E-M to Mr. Rhodes' first declaration are the Defendant's Initial Disclosures pursuant to Rule 26(a) and the documents or media produced with the initial disclosures. Exhibits N-O are correspondence between Mr. Rhodes and Ms. Ragan regarding a revised request for evidence under Missouri's Sunshine Law. Exhibit P is an e-mail from St. Charles County's Public Affairs Coordinator to another County employee regarding St. Charles County's Swat Team activity in Ferguson, Missouri on August 13, 2014. Exhibits R-V are discovery requests and responses between the parties. Exhibits W, X, and Y are audio and video files that were produced by the Defendants during discovery. The second declaration contains two Exhibits. Exhibit Z is a news article from the internet produced by Defendants and Exhibit AA is another video produced by Defendants during discovery.

         Defendants ask the Court to disregard portions of the declarations submitted by Mr. Rhodes, because he was not listed as a witness as required by Fed.R.Civ.P. 26(a) or (e). “Counsel can be competent to provide an affidavit in support of a motion for summary judgment.” Moore v. Fargo Police Dep't, 297 Fed. App'x 569, 569 (2008). See e.g. Sitts v. United States, 811 F.2d 736, 741-42 (2d Cir.1987) (the city's attorney attested that she personally conducted a thorough and diligent search of the records of the police department, and it was not plainly erroneous for the district court to presume that the attorney for the city was familiar with the city's police files); In re Apex Exp. Corp., 190 F.3d 624, 635 (4th Cir.1999) (“We have held in the Rule 56(e) context that ordinarily, officers would have personal knowledge of the acts of their corporations.”) (internal quotation omitted); Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir.1980) (holding that where “the attorney negotiated the settlement and handled all the related transactions, ” it was “reasonable to assume that he had personal knowledge” of whether payment was received by his client). Attorney affidavits not based upon personal knowledge, however, have been held not to comply with Rule 56(e). Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 226 (8th Cir. 1990). “It is the Court's job to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record.” Asarco LLC v. NI Industries, Inc., 106 F.Supp.3d 1015, 1032 (E.D. Mo. 2015).

         Although at times Mr. Rhodes' characterizations of the exhibits attached to his declarations may not be admissible, the exhibits that were produced by the parties have already been authenticated and the discovery materials speak for themselves. “The act of production is an implicit authentication of documents produced.” See Hammer v. JP's Southwestern Foods, LLC, No. 08-0339-CV-W-FJG, 2014 WL 2759089, at *2 (W.D.Mo. June 18, 2014) (citations omitted); see also Orr v. Bank of America, NT & SA, 285 F.3d 764, 776 (9th Cir. 2002) (“[W]hen a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties.”). The Court will consider Mr. Rhodes' declarations to the extent they can assist the Court in determining whether there is a genuine issue of material fact as appropriate.

         C. Defendants' Affidavits and Missouri Sunshine Law Requests

         On December 29, 2014, before this action was filed, Mr. Rhodes submitted a Missouri “Sunshine Law” request to the Custodian of Records of the St. Charles County Sheriff's Department seeking several documents. One of the requests sought “all training materials used to provide training to the SWAT Team members who were called out that day [August 13, 2014] relating to civil disturbances.” [Doc. 57-6 at 15.] Ms. Ragan responded, “For your information, these materials were created after August 13, 2014, but there are no earlier records that respond to your request.” [Doc. 57-6 at 51.] In support of their Motion for Summary Judgment, Defendants submitted the affidavits of former St. Charles County Sheriff Thomas Neer and Lieutenant Timothy MacMann that indicate that the St. Charles County SWAT Team engaged in nine trainings for field force “civil disobedience” training between November 6, 2006 and January 22, 2014. Defendant Deputy Michael Anderson also averred that he attended three field force “civil disobedience” trainings between October 2010 and January 2014. Defendants also supplemented their Rule 26(a) disclosures in October 2017 to name Sheriff Neer as a witness. Plaintiffs assert that Defendants are bound by their earlier Sunshine law response that no training materials existed before the date of the alleged incident at issue.

         Section 610.011.2 of the Missouri Open Records Act or the “Sunshine Law” provides that all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in § 610.023 to § 610.026, except as otherwise provided by law. In interpreting this provision of law and all other provisions of Chapter 610, § 610.011 reads in pertinent part: It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law....Mo. Rev. Stat. § 610.011.1; see also § 610.011.2 (“Except as otherwise provided by law, all public meetings of public governmental bodies shall be open to the public as set forth in section 610.020, all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in sections 610.023 to 610.026, and all public votes of public governmental bodies shall be recorded as set forth in section 610.015.”); § 610.023 (“Each public governmental body shall make available for inspection and copying by the public of that body's public records.”).

         Defense counsel's allegedly erroneous or misleading response to the Sunshine Law request may provide Plaintiffs with a cause of action against Defendants under the Missouri Sunshine Law. For the purposes of the summary judgment motion, however, the affidavits of Sheriff Neer, Lieutenant MacMann, and Deputy Anderson can be considered by the Court, including their attestations regarding the training received by the SWAT team members.

         D. Undisputed Facts for Summary Judgment Purposes

         The Court finds that the following facts are material and undisputed for purposes of Defendants' Motions for Summary Judgment.[1]

         In 2014, Michael Anderson was a deputy with the St. Charles County Police Department and had been a member of the St. Charles County Regional SWAT Team since 2010. Following the fatal shooting of Michael Brown in Ferguson, Missouri, on August 9, 2014, there was significant public outcry and protests, and there was a large police response. The St. Louis County Police had assumed overall command of the police response in Ferguson. St. Louis County requested assistance from the St. Charles County Regional SWAT Team in Ferguson, including on August 13, 2014. The St. Charles County Regional SWAT Team had also been in Ferguson on Sunday, August 10th and Tuesday, August 12th.

         On August 13th, there were multiple law enforcement agencies present, including from the St. Louis County Police Department, the Missouri State Highway Patrol, the St. Louis Metropolitan Police Department, the Ferguson Police Department, and officers from a variety of other municipalities within St. Louis County. Some law enforcement agencies' officers could be identified as a member of that agency by distinctive uniforms or patches, but others could not, especially after dark and when most law enforcement officers were wearing gas masks. On August 13, 2014, the Captain of the Bureau of Special Enforcement and the St. Charles County SWAT Team Commander received a briefing at the Command Post, at Buzz Westfall Plaza. On August 13, 2014, the St. Charles County Regional SWAT Team was given its assignment, which was to assist St. Louis County and the Highway Patrol with crowd control on West Florissant Avenue.

         On August 13, 2014, the Al Jazeera America television news network sent journalists, including Plaintiffs Ash-har Quraishi, Marla Cichowski, and Sam Winslade to Ferguson. Plaintiffs set up cameras to prepare for a broadcast live from Ferguson. The cameras were set up at Highmont Drive and Gage Drive. Plaintiff Winslade began recording at 9:24 p.m. Members of the St. Charles County Regional SWAT Team approached the intersection of West Florissant Avenue and Highmont Drive shortly before 9:30 p.m. and by that time it was dark outside. The Plaintiffs observed police officers a block and a half away, at the intersection of West Florissant Avenue and Highmont Drive.

         The Al Jazeera America video camera captures unedited raw footage of what happens next. Quraishi begins preparing for the live broadcast speaking to Winslade and Cichowski among others. Within a few minutes, an unidentified police officer shot rubber bullets at Plaintiffs. Within a minute, Deputy Anderson deployed a single round of CS gas, and it landed in front of Plaintiffs' cameras where Plaintiffs were standing. The actual CS canister did not come into physical contact with the Plaintiffs. The tear gas canister detonates, and then the Plaintiffs move off camera, but can be heard talking about being shot at by police. Quraishi called 911, and Winslade called the Al Jazeera America Network Operations Center and asked them to call the St. Louis County Police. Someone off camera stated that a floodlight was shining on them. Then, an unidentified person walked past the camera and crossed the street. Some cars drove slowly down the street. Within two minutes, a group of young people began posing in the camera, stating that they believed they were live on CNN and commenting that the police scared the news reporters away. Within thirty seconds, Quraishi came into the camera's view and is shot at again and he immediately left the camera's line of sight. Another individual walked down the street past the camera. Then, a second group of people began taking pictures and talking into the camera for over two minutes. There is distant yelling and remote noise in the background. At the sixteen minute mark on the video recording, some young men who were walking on the opposite side of the street come to the ...


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