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Wednesday, April 3, 2019

St. Louis Police Want Permission to Mace Nonviolent Protesters — Again

Posted By on Wed, Apr 3, 2019 at 5:39 PM

click to enlarge Maleeha Ahmad, moments after being pepper sprayed by St. Louis police on September 15, 2017. - THEO WELLING
  • Maleeha Ahmad, moments after being pepper sprayed by St. Louis police on September 15, 2017.

On Friday, the attorneys from the St. Louis City Counselor's Office rolled out a sprawling request for a federal judge to let cops again mace nonviolent protesters.

It is quite the document, in which the lawyers argue that everyone — including, yes, maced protesters and random people caught up in mass arrests — owe the police a "debt of gratitude" because St. Louis didn't experience "the violence and terror of full-scale riots" in 2017 after ex-cop Jason Stockley was acquitted of murder.

If you'd like to read the full 39-page document, please do. We've posted it below. But we've also summarized a few of the highlights and added some context.

First, a little background: The American Civil Liberties Union of Missouri sued the city and its police force in September 2017 after officers responded in force to demonstrations. In particular, more than 100 people had been arrested in what has come to be known as the "kettle" on the night of Sept. 17, 2017. People caught in the intersection of Washington and Tucker when police surrounded them testified they were beaten, taunted and pepper-sprayed even as they kneeled or laid down on the ground.

In November 2017, U.S. District Judge Catherine Perry issued a preliminary injunction telling cops not to mace or threaten to mace protesters who posed no threat of violence.

"Plaintiffs’ evidence — both video and testimony – shows that officers have exercised their discretion in an arbitrary and retaliatory fashion to punish protesters for voicing criticism of police or recording police conduct," Perry wrote.

She did not ban officers from using chemical agents where there was an imminent threat of violence, or if officers had to defend themselves. But the judge forbade police from using pepper-spray to do things like disperse marchers because they were mad at them.

Police fired tear gas canisters into the streets of the Central West End on September 15, 2017. - DANNY WICENTOWSKI
  • Police fired tear gas canisters into the streets of the Central West End on September 15, 2017.

At the time, the city issued a statement saying it respected Perry's hard work and would follow her orders.

But in the city's new motion to dissolve Perry's order, the attorneys say the judge was fooled by the ACLU into meddling in police business. It claims a studious review of video from the protests show cops were right, mostly.

"The streets of the City of St. Louis during September 2017 were not the Edmund Pettus Bridge, much as the ACLU and its plaintiffs want the Court to react as though they were," city lawyers wrote. "Pepper spray or mace is not 'the new fire hose.'"

See Also: ACLU: In St. Louis, 'Pepper-Spray Is the New Fire Hose'

But in many cases, the city's protestations simply don't match with earlier testimony or documentary evidence. Three areas in particular are worth a second look.

On the kettle: The city acknowledges "the mass arrest was not a model operation," but then argues it wasn't really that bad, or at least not what happens during all protest arrests. There had been vandalism hours earlier and a few blocks away, and the city claims some of the people involved were now among those milling around the intersection.

"Eventually, fearing a repeat of the earlier violent outburst or property damage and objects thrown at police, the incident commander directed that the intersection be closed off and that all persons appearing to be part of the assembly should be arrested."

One of the problems with this plan was the indiscriminate nature of surrounding a large group of people who just happened to be in the middle of downtown.

"There was no simple way to separate persons who were protesters or had been with the crowd earlier from ordinary passersby who happened upon the scene," the city attorneys write. "Indeed, video footage of earlier protests shows people with strollers and dogs on leashes actually joining the marchers."

Police solved that conundrum by arresting everybody on charges of failure to disperse, a municipal violation. The broad sweep of people taken into custody that night included an Air Force officer and his wife who live in the neighborhood, journalists and even an undercover cop, whom the FBI alleges was mistaken for a protester and beaten severely by fellow officers.

The city rationalized the operation, in part, by insisting that officers had spotted people in the crowd who were responsible for earlier vandalism. But they never actually charged anyone from the kettle with anything related to vandalism. In fact, even the failure to disperse charges were eventually dismissed when city prosecutors let the deadline for prosecuting them pass.

On using chemical agents: The city contends the police were judicious throughout weeks of protests in their use of things like tear gas and pepper-spray.

"The record does not show that use of mace was promiscuous or punitive," city attorneys write.

That clashes with testimony, video and photographs of protests. On September 29, 2017, outside Busch Stadium, Officer William Olsten blitzed anyone within range with pepper-spray after police arrested a pastor and another man, according to a separate lawsuit. (Olsten has other problems these days.) Independent journalist Heather De Mian was livestreaming when she was sprayed with others. De Mian, who uses a wheelchair, can be heard in her video (go to the 23-minute mark) angrily demanding to know why she had been sprayed.

"What kind of a threat am I that you had to fucking spray me?" she shouts.

And on the very first night of the protests, September 15, 2017, police used tear gas to clear crowds out of Mayor Lyda Krewson's neighborhood in the Central West End after protesters threw objects at the house, breaking windows and splattering paint on the exterior.

Restaurateur Chris Sommers testified that long after that incident was over, police stormed up North Euclid firing pepper balls — like paintballs filled with the same irritant in pepper spray — and smoke canisters along the nearly empty street. When he shouted at them, Sgt. Brian Rossomanno threw a smoke canister that landed just in front of Sommers and his pizzeria. 

Rossomano testified that was an errant throw. A bystander threw the canister back — an action the sergeant best known as "Riot King" described as an "assault." Another officer fired on them with pepper balls as Sommers took cover in his restaurant and locked himself in with his staff and diners.

People caught in the September 17, 2017 kettle also testified that police maliciously maced them directly in the face even as they complied with orders to get on the ground. Yet the city argues that only a small number of protesters were "subjected to mace" that night.

Jon Ziegler, better known as livestreamer Rebelutionary Z, was one. He posted videos of the scene. Most the action is at the end, when police move in to arrest Ziegler and others. One of the officers can be heard calling him "superstar" in the video as they arrest him. By that time, Ziegler is dripping pepper spray, and people around him can be heard coughing.

"We're also just choking on mace now," he says at one point. "We're drowning in mace here."

City attorneys say even if "individual officers may have misused pepper spray on September 15 and September 17," that was not standard practice for police or a result of a bad city policy.

On the St. Louis cops indicted by the feds: The indictment of a few officers on federal charges don't get a lot of attention in the pleading, but the city argues that criminal case — as well as more than twenty civil lawsuits filed by others — show a check on police abuse.

Three officers — Dustin Boone, Randy Hays, Christopher Myers — are accused of pummeling fellow officer Luther Hall the night of the kettle and then conspiring with Hays' girlfriend, Officer Bailey Colletta, to cover it up.

They were part of the department's Civil Disobedience Team, or "riot police," a unit police deployed frequently during protests. In a footnote to its filing, city attorneys say the officers "apparently" assaulted the undercover officer in the crowd before the mass arrests of the kettle.

"There is no evidence whatsoever that police commanders or other officers had any knowledge of these officers' intentions," city attorneys write. They describe the four as "an unrepresentative few" who "stand in stark contrast to the professional behavior of the great majority of the other officers during the protests."

Hall told investigators Boone, Hays and Myers "beat the fuck out of him like Rodney King." And although the city is now painting the incident as an aberration, a number of the allegations described in the criminal indictment echo accusations lodged previously by plaintiffs in the ACLU suit and flurry of other suits.

That includes officers' focus on the camera and cell phone Hall had used to record the protests. He claims an officer — unnamed in a search warrant affidavit — took the Nikon from around his neck and smashed it on the ground. He similarly saw his cell phone lying on the ground with a circular, baton-sized imprint on the shattered screen. 

Journalists and others arrested in the kettle claim that cops targeted anyone who they thought was filming them. And text messages between Boone and Hays that were later collected by the FBI indicate others were involved.

"... just told [redacted] the ass whooping can be explained," Hays wrote. "The camera thing can't and we weren't apart of that."

Boone responded: "Yes, trust me, I am WAY more alright with what u and I did than what the others did! I don't like that we put our hands on another cop, but the situation was a little fucked up too, wasn't JUST us."

Hays wrote back, "Wasn't just us, I don't like the beating the hell outta a cop, but the department put him in that spot, he could've announced himself any time. And he wasn't complying. The camera thing is just ignorant, nothing we all haven't done and if it was a protester it wouldn't be a problem at all."

St. Louis Motion by on Scribd

We welcome tips and feedback. Email the author at or follow on Twitter at @DoyleMurphy.

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