Sahr v. City of Des Moines

666 F.Supp.3d 861

Jacob SAHR, Plaintiff, v. CITY OF DES MOINES, IOWA; Polk County, Iowa; Officer Brian Buck, in his Individual and Official Capacity; and Unknown Officers of the Des Moines Police Department and Polk County Sheriff's Office, in their Individual and Official Capacities, Defendants.

4:21-cv-00101

United States District Court, S.D. Iowa, Central Division

Signed March 30, 2023

Jim T. Duff, Thomas J. Duff, Duff Law Firm, P.L.C., West Des Moines, IA, for Plaintiff.

John O. Haraldson, Des Moines City Attorney, Des Moines, IA, for Defendants City of Des Moines, Iowa, Brian Buck.

ORDER

ROBERT W. PRATT, Judge

Before the Court is the City of Des Moines, Officer Brian Buck, and Unknown Officers of the Des Moines Police Department (Defendants)'s Motion for Summary Judgment, filed under Federal Rule of Civil Procedure 56. ECF No. 48. Plaintiff filed a Stipulation of Dismissal with Prejudice as to Defendants Polk County, Iowa, and Unknown Officers of the Polk County Sherriff's Office. ECF No. 52. Plaintiff Jacob Sahr filed a Resistance to Defendants' Motion for Summary Judgment. ECF No. 57. Defendants filed their Reply. ECF No. 58. The Court heard oral argument on January 12, 2023. See ECF No. 62. The matter is fully submitted.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 30, 2020, Plaintiff Jacob Sahr left his home with two of his friends and headed to Des Moines, Iowa around 10:30 p.m. ECF No. 48-3 at 30. That evening, community organizers had gathered in downtown Des Moines to rally for George Floyd—an African American man murdered by a Minneapolis Police Department Officer—and to protest against police violence and racial discrimination. ECF No. 38 ¶ 8. Like the protests the night prior in Des Moines, "for the most part these protests were peaceful," but instances of violence took place in the early evening hours. ECF No. 57-2 ¶ 18; see Andrea May Sahouri, Des Moines Braces for More Rallies After Friday Event Devolves Into Violence, Vandalism, Des Moines Reg. (last updated May 30, 2020, 2:32 p.m. CST), https://www.desmoinesregister.com/story/news/2020/05/29/protestors-clash-police-riot-gear-outsidedes-moines-police-department/5284962002. Plaintiff had attended a peaceful protest outside the Des Moines Police Department earlier in the day with many community members. ECF No. 57-4 ¶ 1. When Plaintiff returned to the downtown area that evening, he went to a bar called The District to hang out with his friends. ECF No. 57-2 ¶ 35. While at the bar, he "heard banging and screaming coming from the Capitol and headed in that direction." Id.

Outside the Iowa Capitol Building,¹ a large crowd had gathered. ECF No. 48-2 at 27; DJI_0007(2), at 00:22. At the top of the Capitol steps, a clear line of law enforcement officers had formed to halt advancement of the crowd. DJI_0007(2), at 01:07; DJI_0008(2), at 09:01. The officers were from the Des Moines Police Department (DMPD), Polk County Sherriff's Office, and a combined tactical unit called Metro Special Tactics and Response (Metro STAR). ECF No. 57-2 ¶¶ 61, 62.² The following events were captured by drone footage and a video recorded in real time by a reporter for the Des Moines Register.

DJI_0007(2); DJI_0008(2); DJI_0009, DJI_0010; DJI_0011; Des Moines Reg. Video. The video footage is corroborated by the DMPD dispatch log. ECF No. 48-2 at 24-33.

Initially, DMPD received a phone call that the group at the Capitol had damaged the Polk County Courthouse earlier in the evening.³ ECF No. 48-2 at 27. Acting on that information, officers in riot gear gathered in a line at the top of the Capitol steps. Des Moines Reg. Video, at 35:30. The crowd facing the line of officers is heard in the video chanting, "Hands up, don't shoot!" Id. at 36:13. Some protesters have megaphones, some are carrying milk jugs and water bottles in anticipation of law enforcement's use of chemical dispersants, many are holding signs, and a few are leading in chants. Id. As the protest carries on, music is heard playing in the crowd. Id. at 59:42. The crowd inches closer and closer to the officers' line while chanting in unison, "F**k the police," and "the people united can never be divided," as well as "Black lives matter." Id. at 43:45, 59:53, 01:02:54. The officers eventually make an announcement over loudspeaker, but their words are difficult to understand in the video because of the crowd noise. Id. at 01:00:35. Based on DMPD dispatch logs, the officers were announcing dispersal orders over the public-address (PA) system. See ECF No. 48-2 at 27. The first dispersal order at the Capitol was given around 11:07 p.m., the second around 11:10 p.m., and the third around 11:12 p.m. Id. Then, officers audibly announce, "Final warning to disperse, this is your final warning." Des Moines Reg. Video, at 01:04:08.

Shortly after the final warning, officers fired pepper spray, tear gas, and flash bangs into the crowd and most protesters dispersed from the Capitol steps and ran towards the grassy areas near the Capitol. Id. at 01:07:39; DJI_0009, at 15:56. Protesters are heard in video evidence screaming in pain, coughing, and asking if anyone has saline solution, milk, or water to wash the chemicals out of their eyes. Des Moines Reg. Video, at 01:08:10. Several protesters eventually re-group, but the line of officers continues pushing them westward away from the Capitol grounds using chemical dispersants. DJI_0010, at 02:27, 16:44. Officers continue dispersing the crowd until it crosses Finkbine Drive, and then many individuals head west down Grand Avenue, while others cross East 7th Street and walk west down Locust Street. ECF No. 48-2 at 28; DJI_0011, at 11:35-16:30; Des Moines Reg. Video, at 01:53:23. Cars are heard honking as the scattered group walks down the street. Des Moines Reg. Video, at 01:53:23. As verified by the DMPD dispatch log, officers were "able to disperse most of the crowd from the Capitol grounds shortly before midnight." ECF No. 57-2 ¶ 47. After the crowd is largely dispersed, the Des Moines Register reporter walks down Grand Avenue and says, "[There] doesn't look to be any immediate sign of violence going on ... most people are in a little bit calmer spirits compared to about twenty minutes ago when that last tear gas canister was fired at the actual Capitol about five blocks back there." Des Moines Reg. Video, at 02:02:53.

Meanwhile, Plaintiff and his friends had walked from the bar to a grassy area west of Finkbine Drive near the Capitol grounds, a distance away from the line of officers and the large group positioned on the Capitol steps. ECF No. 57-2 ¶ 36; ECF No. 57-4 ¶ 2. Plaintiff claims he did not hear any dispersal orders announced at the Capitol because of the distance he was from the crowd and the high level of traffic and crowd noise. See ECF No. 52-2 ¶ 38. However, when Plaintiff realized the officers were "throwing tear gas and flash bangs" at protesters, he and his friends left and walked back to the bar on Court Avenue. ECF No. 57-4 ¶ 3. Plaintiff walked west away from the Capitol grounds down Walnut Street and then turned south onto Water Street, taking a different route than the dispersed protesters. See ECF No. 57-1 at 4. While at the bar, Plaintiff eventually saw a group of protesters walking east. ECF No. 57-4 ¶ 4. At this point, he had left the Capitol area over an hour earlier and claims he did not recognize any protesters. Id. Around 12:22 a.m., Plaintiff and his friend decided to leave the bar and join the group headed east on Court Avenue. ECF No. 57-2 ¶ 59. In video evidence, a visible crowd moves east across the Court Avenue bridge towards the Police Department, where nearly sixty officers start to form a "scrimmage line" near the intersection of East 1st Street and Court Avenue. Id. ¶ 61; ECF No. 48-2 at 28. A cluster of protesters gathers in the intersection, facing the scrimmage line, as more individuals walk across the Court Avenue bridge. DJI_0281, at 04:08. The reporter for the Des Moines Register announces in real-time that a "good chunk of the crowd here seems to have stuck together" and appeared to be heading back east. Des Moines Reg. Video, at 02:15:57.

At this point, Plaintiff was walking with his friend on the sidewalk of the Court Avenue bridge. See id.; ECF No. 48-3 at 31. Plaintiff was not chanting with the group gathered near the scrimmage line, and he asserts his intent was to observe the protest because as a person of color, he sympathized with the Black Lives Matter message. See ECF No. 48-3 at 33 ("I stayed silent the whole time"). Body camera videos of DMPD Officers Kelley and Spear—corroborated by the DMPD dispatch log—captured what happened next as Plaintiff walked east down the Court Avenue bridge sidewalk around 12:25 a.m. See ECF No. 48-2 at 28. The scrimmage line of officers had obtained authorization for tear gas over their radios, and a small cluster of people in the intersection of East 1st Street and Court Avenue is heard chanting, "Hands up, don't shoot!" Kelley Body Cam, at 01:30. About the same time, one person in a wheelchair approaches the scrimmage line. Id. Officers are heard yelling at him to "go home" and "get off the street," but their commands were not projected. Id. at 01:33-01:42. Though Spear testified there may have been a bullhorn used. ECF No. 48-3 at 160-61. At least one officer then warned, "You're going to get gassed," and the individual in the wheelchair screamed back, "Stop!" Kelly Body Cam, at 02:00. Immediately, gas was fired in the direction of the crowd and the scrimmage line charged towards the bridge after clearing the intersection at East 1st Street and Court Avenue with tear gas and flash bangs. Id.

Plaintiff saw the line of officers charging towards him and grabbed his cellphone to film the incident. In a fourteen-second video, Plaintiff captures officers rushing towards him and then passing him before he is shoved and tackled to the ground from behind by an unknown officer....