Whether probable cause existed to arrest for unlawful assembly

QUESTIONS PRESENTED In the aftermath of the 2020 killing of George Floyd, civil unrest broke out across the country, including in Des Moines, Iowa. Mark Nieters, a freelance photographer, was in the immediate proximity of a traveling unlawful assembly. Law enforcement was receiving moment-to-moment updates on the whereabouts of this group of traveling unlawful assemblers. Des Moines Police Officer Brandon Holtan actually saw Nieters among people running from the scene of the unlawful assembly. Holtan saw that Nieters was wearing a helmet, goggles and a gas mask, similar to others who attended the unlawful assembly. He was taken to the ground and arrested for unlawful assembly. Nieters’s criminal charges were eventually dismissed. He sued City Defendants. The following questions are presented: 1. Whether probable cause existed, from the officer’s perspective, to arrest a person for failure to disperse from an unlawful assembly when an individual was in immediate proximity of a group of unlawful assemblers, was located where police had information unlawful assemblers were, and was dressed like an unlawful assembler with a helmet, gas mask, and goggles, meaning there was evidence of proximity to a crime and similar appearance to those committing the crime. iii QUESTIONS PRESENTED-CONTINUED 2. Whether, unable to cite one case finding a Fourth Amendment violation under similar circumstances, the U.S. Court of Appeals for the Eighth Circuit erred in its split decision to reject qualified immunity based on “clearly established” law in stating, “At the time of Nieters’s arrest, “it [was] clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.” 3. Whether, unable to cite one case finding a Fourth Amendment violation under similar circumstances of a mobile riot/unlawful assembly, the U.S. Court of Appeals for the Eighth Circuit erred in denying qualified immunity for the force used in arresting Nieters.