8th Circuit: Officer Who Tear Gassed Reporters at Ferguson Protest Not Entitled to Qualified Immunity

Ash-har Quraishi, Marla Cichowski, and Sam Winslade, reporters from Al Jazeera America news network, turned on their camera at 9:24 pm on August 9, 2014, to record a live broadcast covering the protests that followed the death of Michael Brown in Ferguson, Missouri. But instead of a live update on the protests, the camera ended up recording footage of the reporters being tear-gassed and shot with rubber bullets by St. Charles County police officers.

The officer that deployed the tear-gas canister, Deputy Michael Anderson, claims he is entitled to qualified immunity because the reporters refused to turn off their spotlights and disperse as they were told. The district court, and now the Eighth Circuit, disagreed.

Hard to Argue With Video

The case is unique in the fact that most of the facts necessary for a summary judgment ruling were recorded by the reporters' camera. When the video begins, the scene is calm. The reporters had set up their equipment about a block and a half from the street where many of the protests were taking place. Then, seemingly out of nowhere, an unidentified officer from St. Charles County's SWAT team shoots rubber bullets at the reporters.

Quraishi, Cichowski, and Winslade start yelling, identifying themselves as reporters. Then Anderson, a member of the SWAT team, tosses a single tear-gas canister at them. It lands at their feet, and they move away from the camera. One of the reporters appears in front of the camera, is shot at, and moves away again.

A Peaceful Scene, Interrupted

The district court denied the officer's qualified immunity-based motion for summary judgment. On appeal, the Eighth Circuit affirmed, finding that he did not have "arguable" probable cause as required by circuit precedent.

"The videos confirm the reporters' version of the facts," the court wrote. "They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas."

Anderson insists he made a reasonable mistake, but the panel found no undisputed facts to support that conclusion. Moreover, even if Anderson's sergeant told him to deploy the tear-gas (as he also claims), nothing in prior cases indicates there should be immunity when a superior instructs a government official to engage in unconstitutional conduct.

Related Resources:

Sixth Circuit Says Plainclothes Officers Can't Claim Qualified Immunity in Shooting of Henry Green (FindLaw's Sixth Circuit)

10th Circuit Weighs in on Qualified Immunity (FindLaw's Tenth Circuit)

Podcast: Making Sense of Qualified Immunity (FindLaw's "Don't Judge Me")