Gerald Weber (Photo: John Disney/ALM)

The U.S. Court of Appeals for the Eleventh Circuit has affirmed a trial judge's decision denying an Atlanta police officer qualified immunity in a federal suit over the arrest of a protest march participant who was filming police. 

The Dec. 26 ruling by the Eleventh Circuit panel sets the stage for a civil rights trial over allegedly aggressive tactics employed by Atlanta police in response to Atlanta protests stemming from a Ferguson, Missouri, grand jury's 2014 decision not to indict a white police officer over a black teenager's shooting death.

Corey Toole—who joined the Ferguson protest march in through downtown Atlanta in November 2014—said he was standing on a public sidewalk filming the protesters when police officers surrounded him and slammed him face-first onto the pavement before taking him into custody. The altercation allegedly left Toole with deep gashes on his forehead and lower lip, along with a chipped tooth. Police also confiscated Toole's cellphone and allegedly damaged it during his arrest. A misdemeanor disorderly conduct charge against Toole was later dismissed. 

"Reading the facts in Toole's favor, he was unlawfully arrested without arguable probable cause while engaging in protected First Amendment conduct—protesting and filming police activities—specifically to stop him from doing so," the unanimous order stated. Defendant Atlanta police sergeant Aaron Zorn "therefore violated Toole's clearly established First Amendment rights and isn't entitled to qualified immunity," the appellate opinion says. "Reading the facts in the light most favorable to Toole—as we must—we affirm."

The panelists included Judges Jill Pryor, Kevin Newsom and Senior Judge Robert Lanier Anderson.

Atlanta civil rights lawyer Gerry Weber is representing Toole along with Mawuli Davis and Robert Bozeman of The Davis Bozeman Law Firm in Decatur, as well as Nora Benavidez, director of the New York-based U.S. Free Expression Programs where she advises PEN America.

"The ruling is a reaffirmation of the First Amendment right to film free of arrest in public places," Weber said. "And the irony of this case is really that Corey was at a demonstration about police who step across the line, and then he experienced an officer stepping across the line and doing something unconstitutional and violating his rights."

"We brought this lawsuit to hold to account the officer who violated our client's First Amendment right to film police and engage in protest," said Benavidez. "The Eleventh Circuit's ruling is a welcome affirmation of those most basic constitutional rights we all cherish."

Alisha Irene Wyatt-Bullman and Staci Miller of the city's law department and Atlanta solo practitioner Maiysha Rashad are defending the city and defendant police.

Toole sued the city and several police officers in 2016, accusing police of assault and battery, malicious prosecution and violations of his constitutional rights in one of multiple federal civil rights suits stemming from the 2014 Atlanta protests in the aftermath of 18-year-old Michael Brown's death.

The City of Atlanta and Zorn appealed last year after U.S. District Court Senior Judge Charles Pannell largely denied their motion for summary judgment in what the judge acknowledged in a March 26, 2019, order was a case with "hotly contested" facts.

Although Toole was arrested for blocking traffic, the street where he was arrested was closed to traffic at the time, according to Pannell's order. "Also, it appears that most of the individuals in the street were APD officers, not protestors, which makes the claim that Toole who was blocking traffic even more dubious," the judge wrote.

Toole's arrest, apparently without probable cause, also impeded his ability to engage in protesting and filming police activities—both protected First Amendment activities, according to Pannell.

Although city attorneys argued that Zorn had probable cause to believe Toole failed to clear the street after being ordered by police to do so, the appellate panel said that, at this stage of the litigation, it must "assume that Toole complied with law enforcement instructions and got on the sidewalk as instructed" and that there was no traffic to impede, as reflected by Toole's own video.

Michael Smith, press secretary for Atlanta Mayor Keisha Lance Bottoms,  declined comment on the ongoing case.

"No reasonable officer could have believed that there was probable cause to arrest Toole for standing in the street and impeding traffic if Toole was on the sidewalk and the streets were closed to traffic," the appellate panel held.

"So, in a situation where the resolution of disputed critical facts determines on which side of this line the officer's conduct fell, summary judgment is inappropriate, and Toole is entitled to have his case heard by a jury," the panel concluded.