Mark Nieters v. Brandon Holtan, 83 F.4th 1099

After George Floyd protests in Des Moines, police issued dispersal orders at the Iowa Capitol and used tear gas; some protesters engaged in property damage and assaults on officers.
Mark Nieters, a journalist, wore a helmet and respirator and photographed protests; he had press credentials on his person but did not display them.
Nieters left the Capitol before dispersal orders were read, followed a group of protesters downtown, and was later observed standing alone about five blocks from the Capitol taking photos.
Officer Brandon Holtan, chasing a group believed to be rioters, saw Nieters, ordered him to the ground, then (almost simultaneously) pepper-sprayed, tackled, and zip-tied him; Nieters then identified himself as press and produced credentials, but Holtan completed the arrest.
Nieters was charged with failure to disperse; charges were later dropped. He sued under 42 U.S.C. § 1983 for unlawful seizure (Fourth Amendment), excessive force (Fourth Amendment), and First Amendment retaliation; the district court granted qualified immunity to defendants.
The Eighth Circuit affirmed dismissal of the retaliation claim but reversed summary judgment on unlawful seizure and excessive force, holding genuine fact disputes precluded qualified immunity on those claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unlawful seizure — probable/arguable probable cause to arrest for failure to disperse	Nieters: No probable cause because he was not part of rioters, was five blocks from Capitol, left before dispersal orders, and did not refuse a dispersal order	Holtan: Dispatch and crowd context supported a reasonable belief Nieters was with rioters and failed to disperse	Reversed summary judgment: genuine disputes of material fact; no arguable probable cause when viewing exculpatory facts in plaintiff's favor, so qualified immunity denied on seizure claim
Excessive force — was pepper-spray/tackle objectively reasonable	Nieters: Nonviolent misdemeanant with hands up, no opportunity to comply; turning was defensive, not flight	Holtan: Dangerous riot context, perceived flight/resistance justified force	Reversed summary judgment: factual disputes about immediacy of threat, timing, and whether force was reasonable; right to be free from such force is clearly established
First Amendment retaliation — but-for causation and lack of probable cause	Nieters: Arrest/use of force were motivated by retaliatory animus against press activity	Holtan/City: No but-for causation; officer believed Nieters was a protester and had probable/arguable probable cause	Affirmed district court: Nieters failed to prove but-for causation; summary judgment for defendants on retaliation claim

Graham v. Connor, 490 U.S. 386 (Fourth Amendment reasonableness standard for claims of excessive force)
Maryland v. Pringle, 540 U.S. 366 (probable cause measured by totality of circumstances)
Tolan v. Cotton, 572 U.S. 650 (on summary judgment courts must view disputed facts in light most favorable to nonmovant)
White v. Jackson, 865 F.3d 1064 (arguable probable cause standard in Eighth Circuit)
Baude v. Leyshock, 23 F.4th 1065 (limits on justifying mass arrests by reference to small-group unlawful acts)
Smith v. Kan. City, Mo. Police Dep’t, 586 F.3d 576 (use of force against nonresisting suspect unlawful)
Rokusek v. Jansen, 899 F.3d 544 (officer cannot throw nonviolent, nonthreatening misdemeanant to the ground)
Nieves v. Bartlett, 139 S. Ct. 1715 (retaliatory arrest claim elements and no-probable-cause rule with objective-evidence exception)
Devenpeck v. Alford, 543 U.S. 146 (arrestee’s subjective status or officer’s subjective intent irrelevant to probable cause)
City of Wesby v. United States, 583 U.S. 48 (clearly established law requires controlling precedent or robust consensus)