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Officials sued for pepper spraying protestors

Where a man and woman attending a protest alleged that the Fredericksburg city manager and chief of police directed officers to spray the protestors with pepper spray, after declaring the protest was an unlawful assembly, their First Amendment retaliation and Fourth Amendment excessive force claims survived the motion to dismiss. 

Background

Marc and Jacqueline Stout sue Fredericksburg City Manager Timothy Baroody, Fredericksburg Chief of Police Brian Layton and Officer Donald Lee Ridenour in their individual capacities for allegedly violating the Stouts’ First and Fourth Amendment rights during a protest. They also sue Baroody and Layton in their official capacities for implementing policies that caused these First and Fourth Amendment violations and for failing to train the officers to respond to protests. The defendants move to dismiss the Stouts’ claims.

First Amendment retaliation

“A plaintiff seeking to recover for First Amendment retaliation must allege that (1) she engaged in protected First Amendment activity, (2) the defendants took some action that adversely affected her First Amendment rights, and (3) there was a causal relationship between her protected activity and the defendant’s conduct.”

First, the Stouts engaged in a peaceful protest protected by the First Amendment when they filmed the protest and laid and kneeled in the street. And, even if Ridenour responded directly to Marc’s “suck my d***” comment rather than the larger peaceful protest, Marc’s statement also constitutes protected speech under the First Amendment.

Second, Baroody and Layton “declared the protest out front of the courthouse an unlawful assembly” and “issued commands to use tear[ ]gas and pepper[ ]spray on protestors.” Finally, the Stouts allege that Baroody and Layton ordered the officers to use tear gas and pepper spray in direct response to the peaceful protest and that, in response to that directive and the Stouts’ participation in the protest, Ridenour pepper sprayed Marc. This suffices for the third element at this stage.

Excessive force

Drawing all reasonable inferences in the Stouts’ favor, Baroody and Layton issued the command to use tear gas and pepper spray sometime after the protesters kneeled “in a peaceable show of admission to the police” and “emptied out of the street to instinctively create distance between themselves and the police.” Notwithstanding the government’s legitimate interest in regulating public streets to maintain public order and avoid violence, the command to use non-lethal force like pepper spray against the peaceful protesters constituted a disproportionate reaction. Baroody and Layton’s motion to dismiss the Stouts’ excessive force claim against them is denied.

With respect to Ridenour, after the police officers deployed tear gas, Marc yelled to the police, “Suck my d***, p****!” In response, Ridenour attempted to pepper spray him. Marc then taunted Ridenour, yelling “Suck my d***, p****!” directly at him. Ridenour responded by “aim[ing] his pepper[ ]spray canister inches away from Marc[’s] … eyes” and “’jet-blast[ing]” his eyes, face and camera. Despite Ridenour’s clear interest in restoring order in the midst of the chaos, the force Ridenour employed against an already-disoriented, non-violent individual exceeds what would have qualified as permissible, proportional force in that situation. Defendants’ motions to dismiss these claims is denied.

Qualified immunity

With regard to the Stouts’ First Amendment rights, binding precedent clearly protects an individual’s right to peacefully protest. And when an officer uses force to interfere with that right, his actions do not fall within the “range of reasonableness” required for the protection of qualified immunity. Qualified immunity thus does not protect them against these claims.

For the Stouts’ excessive force claims, although no specific Supreme Court or Fourth Circuit cases address these exact facts under the Fourth Amendment, the lack of any threat renders the force used objectively unreasonable. The court thus declines to dismiss the Stouts’ excessive force claims at this early stage based on qualified immunity.

Official capacity

Both parties assume that Baroody and Layton acted “as final policymakers for their respective entities.” The court thus finds that, by virtue of their status as final policymakers, Baroody and Layton created official policy when they declared an unlawful assembly on May 31, 2020, communicated that declaration to officers and directed the officers to deploy tear gas and pepper spray. The court will deny their motion to dismiss the Stouts’ official capacity claims for First Amendment retaliation and excessive force. 

Finally, the Stouts bring a municipal liability claim for failing to train officers and thereby causing the use of excessive force. Because none of the facts here indicate that the city knew of the training deficiency before the May 31 protest, the Stouts have failed to show the “deliberate indifference to the need for better or different training” required for a failure to train claim. 

Defendants’ motion to dismiss granted in part, denied in part.

Stout v. Baroody, Case No. 3:21-cv-476, Aug. 11, 2022. EDVA at Richmond (Gibney). VLW 022-3-350. 16 pp.

VLW 022-3-350

Virginia Lawyers Weekly