Mark Nieters v. Brandon Holtan

                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 22-2600
                         ___________________________

                               Mark Edward Nieters

                                       Plaintiff - Appellant

                                          v.

            Brandon Holtan; Dana Wingert; City of Des Moines, Iowa

                                     Defendants - Appellees
                                   ____________

                     Appeal from United States District Court
                        for the Southern District of Iowa
                                 ____________

                             Submitted: June 15, 2023
                              Filed: October 11, 2023
                                  ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

GRASZ, Circuit Judge.

      Mark Nieters sued under 

 after he was pepper-sprayed and
tackled by Des Moines Police Officer Brandon Holtan while photographing a
protest. Nieters, who was covering the protest as a journalist, claimed Officer Holtan
and other city officials violated his First and Fourth Amendment rights. The district
court granted the city officials’ motion for summary judgment after concluding
Officer Holtan was entitled to qualified immunity. We affirm in part and reverse in
part.

                                  I. Background

       Consistent with our standard of review, we present the facts in the light most
favorable to Nieters, the non-moving party. Malone v. Hinman, 

(8th Cir. 2017). Following the death of George Floyd, protests occurred around Des
Moines, Iowa. During four consecutive nights of protests, certain protestors
damaged property and threw objects at police officers. On the fourth night of
protests, Nieters attended an event at the Iowa Capitol Building to take photographs.
Nieters wore a painter’s mask and light-colored clothing. He also wore a blue
helmet, which he believed was the international norm for journalists. Though he had
press credentials on his person, they were not displayed. Officer Holtan was at the
same protest as part of the Special Tactics and Response Unit.

       After the organized protest ended around 8:15 p.m., Nieters followed a group
of protestors who marched downtown and then returned to the Capitol around 10:45
p.m. The city officials argue that this group was violent and caused property
damage, which led to law enforcement reading five dispersal orders at the Capitol
between 11:30 p.m. and 11:43 p.m. After officers read the fifth order, they began
arresting protestors who failed to disperse. Nieters denies hearing any dispersal
orders.

       At 11:46 p.m., officers deployed tear gas at the Capitol grounds. Nieters had
already left the Capitol grounds before the tear gas was deployed to follow a group
of protestors moving away from the Capitol. Simultaneously, dispatchers provided
information about this group’s movements to Officer Holtan and other officers in
the area. Dispatch informed officers that windows had been broken in the area.
While pursuing this group, Officer Holtan saw Nieters and believed Nieters was a
rioter. Officer Holtan began running towards Nieters and told Nieters to get on the
ground. Nieters put his hands up but, at some point, turned his body away to brace
                                        -2-
himself from the charging Officer Holtan. Officer Holtan, believing Nieters
intended to flee, “reached around Nieters, grabbed him around the chest, sprayed
him with [pepper] spray, and took him to the ground.” According to Officer Holtan,
these events happened “almost simultaneously.” After Officer Holtan zip-tied
Nieters’s wrists, Nieters informed Officer Holtan he was a member of the press.
Officer Holtan then retrieved Nieters’s press credentials out of his pocket. Because
Officer Holtan did not want to be perceived as giving a journalist special treatment,
he proceeded with Nieters’s arrest. Other journalists near Nieters were not arrested.

       Nieters was booked into the Polk County Jail and charged with one count of
failure to disperse in violation of 

, but the charge was later
dropped as the State was “unable to sufficiently document [Nieters’s] actions for
charges to go forward at th[at] time.” Nieters experienced sore ribs for seventeen
days following his arrest and sought medical attention for pain in his right wrist.

       Nieters sued Officer Holtan, Chief of Police Dana Wingert, and the City of
Des Moines for a myriad of claims, including illegal seizure, excessive force, and
First Amendment retaliation. The district court granted Officer Holtan summary
judgment based on qualified immunity, holding: (1) Officer Holtan had at least
arguable probable cause to believe Nieters violated the law; (2) Officer Holtan’s use
of force was objectively reasonable; and (3) Nieters’s First Amendment activity was
not a substantial factor in Officer Holtan’s decision to use force. Nieters timely
appealed.

                                   II. Analysis

      We review a district court’s grant of summary judgment based on qualified
immunity de novo. Dooley v. Tharp, 

 (8th Cir. 2017).
“Summary judgment is proper if, after viewing the evidence and drawing all
reasonable inferences in the light most favorable to the nonmovant, no genuine issue
of material fact exists and the movant is entitled to judgment as a matter of law.”


                                         -3-
Ryno v. City of Waynesville, 

 (8th Cir. 2023) (quoting Libel v.
Adventure Lands of Am., Inc., 

 (8th Cir. 2007)).

       “To decide whether an official is entitled to qualified immunity, we conduct
a two-step inquiry: (1) whether the facts, viewed in the light most favorable to the
plaintiff, demonstrate a constitutional or statutory deprivation; and (2) whether the
right was clearly established at the time.” Webster v. Westlake, 

, 1009–
10 (8th Cir. 2022).

                            A. Unlawful Seizure Claim

       The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures . . .
and no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. A
warrantless arrest is unreasonable and “violates the Fourth Amendment unless it is
supported by probable cause.” Webster, 

. “Probable cause exists to
make a warrantless arrest ‘when the totality of the circumstances at the time of the
arrest are sufficient to lead a reasonable person to believe that the defendant has
committed or is committing an offense.’” Ehlers v. City of Rapid City, 

 (8th Cir. 2017) (internal quotation marks omitted) (quoting Borgman v.
Kedley, 

 (8th Cir. 2011)). To determine if there is probable cause,
courts must “examine the events leading up to the arrest, and then decide ‘whether
these historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to’ probable cause.” Maryland v. Pringle, 

 (2003)
(quoting Ornelas v. United States, 

 (1996)).

       “[P]robable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Illinois v. Gates, 

, 243
n.13 (1983). Officers are given “substantial latitude in interpreting and drawing
inferences from factual circumstances.” Bell v. Neukirch, 

 (8th
Cir. 2020) (quoting Kuehl v. Burtis, 

 (8th Cir. 1999)). Even
without probable cause, an officer will be “entitled to qualified immunity if there is
                                         -4-
at least ‘arguable probable cause.’” White v. Jackson, 

 (8th Cir.
2017) (quoting Borgman, 646 F.3d at 522–23). Arguable probable cause exists
when “an officer mistakenly arrests a suspect believing [the arrest] is based in
probable cause if the mistake is ‘objectively reasonable.’” Ehlers, 

(quoting Borgman, 

).

       At the time of Nieters’s arrest, “it [was] clearly established that a warrantless
arrest, unsupported by probable cause, violates the Fourth Amendment.” Baribeau
v. City of Minneapolis, 

 (8th Cir. 2010). Therefore, we must
determine whether his warrantless arrest was supported by either probable cause or
arguable probable cause. Officer Holtan argues he had probable cause to arrest and
charge Nieters with failure to disperse in violation of 

, which
states, “[a] peace officer may order the participants in a riot or unlawful assembly or
persons in the immediate vicinity of a riot or unlawful assembly to disperse. Any
person within hearing distance of such command, who refuses to obey, commits a
simple misdemeanor.” 1

       Viewing the evidence in the light most favorable to Nieters, the record
demonstrates there are genuine issues of material fact that preclude summary
judgment on the unlawful seizure claim. To violate the Iowa statute for failure to
disperse, the individual must (1) be a participant in or in the immediate vicinity of a
riot or unlawful assembly; (2) be within hearing distance of a command to disperse;
and (3) refuse to disperse. See 

. On the evening of the protest,
even if there were members of the crowd who participated in riots or formed
unlawful assemblies, there is no evidence Nieters joined any of these groups. “A
person can join ‘an unlawful assembly by not disassociating himself from the group


      1
       Under 

 “[a] riot is three or more persons assembled
together in a violent and disturbing manner, and with any use of unlawful force or
violence by them or any of them against another person, or causing property
damage.” Under 

 “[a]n unlawful assembly is three or more
persons assembled together, with them or any of them acting in a violent manner,
and with intent that they or any of them will commit a public offense.”
                                         -5-
assembled and by knowingly joining or remaining with the group assembled after it
has become unlawful.” White, 

 (quoting State v. Mast, 

 (Mo. Ct. App. 1986)). But Officer Holtan admitted Nieters was not part of
the group of rioters he was chasing, and that Nieters was at least fifty to seventy-five
feet away from the group. In staying apart from the group of protestors he was
photographing, Nieters disassociated from the group. Additionally, Nieters was not
running away as others were. Rather, he was standing outside a hotel wearing two
cameras and taking photographs of a gas canister and fleeing protestors just prior to
Officer Holtan tackling him.

       Nor is there evidence in the record that Nieters was in hearing distance when
any of the dispersal orders were read at the Capitol. While Nieters was at the Capitol
earlier that evening, he left prior to the dispersal orders being read and was no longer
in hearing distance. Officer Holtan first saw Nieters standing still five blocks away
from where the dispersal orders were given. Officer Holtan never gave Nieters a
personal order to disperse, nor did he ask if Nieters was in the process of dispersing;
instead, he “simultaneously” ordered Nieters to “get on the ground” while pepper-
spraying and charging him. A reasonable jury could conclude there was no probable
cause to believe Nieters violated Iowa’s dispersal statute since under the facts
favorable to Nieters, he was not participating or within the immediate vicinity of a
riot or unlawful assembly, was not within hearing distance of the dispersal
command, and did not refuse to disperse. Furthermore, as Nieters was standing by
himself five blocks away from the Capitol, a jury could conclude that Nieters did in
fact disperse.

       Of course, this does not end our analysis. Officer Holtan would still be
“entitled to qualified immunity if there [was] at least ‘arguable probable cause.’”
White, 

 (quoting Borgman, 646 F.3d at 522–23). To hold arguable
probable cause existed, we would need to conclude Officer Holtan mistakenly
arrested Nieters believing the arrest was based in probable cause, and the mistake
was objectively reasonable. See Ehlers, 

. We cannot do so under
the summary judgment standard. When considering the clearly-established prong,
                                          -6-
we must not resolve genuine disputes of fact in favor of Officer Holtan. See Tolan
v. Cotton, 

, 656–57 (2020). And we may not disregard exculpatory
evidence when considering the totality of the circumstances to determine if arguable
probable cause existed. Bell, 

. We must instead view all the disputed
facts in the light most favorable to Nieters, including those exculpatory facts that
showed he did not hear the dispersal order and stood by himself, apart from the group
of rioters, taking photographs. Viewed in this light, Officer Holtan lacked arguable
probable cause to arrest Nieters for failure to disperse. See Baude v. Leyshock, 

 (8th Cir. 2022) (holding that while “[p]olice may be entitled to
qualified immunity protections if they arrest individual offenders with at least
probable cause . . . , officers cannot enjoy such protections by alleging that ‘the
unlawful acts of a small group’ justify the arrest of the mass”) (quoting Bernini v.
St. Paul, 

 (8th Cir. 2012))).2

       Even if we concluded Officer Holtan made a reasonable mistake about
probable cause when he first tackled Nieters to the ground, Nieters immediately
informed Officer Holtan that he was a journalist and he provided press credentials.
Yet Officer Holtan still arrested Nieters because he did not want to be perceived as
giving a journalist special treatment. Once Officer Holtan was aware Nieters was a
member of the press, and had no reason to believe Nieters had been within hearing
distance of the orders to disperse, it certainly was not an “objectively reasonable”
mistake to believe probable cause existed for the arrest. “The continuation of even
a lawful arrest violates the Fourth Amendment when the police discover additional
facts dissipating their earlier probable cause.” BeVier v. Hucal, 

(7th Cir. 1986); accord Barnett v. MacArthur, 

 (11th Cir. 2020);


      2
        We recognize “[a] mass arrest may satisfy the Fourth Amendment’s
protections if the police have ‘grounds to believe all arrested persons were a part of
the unit observed violating the law.’” Baude, 66 F.3d at 1072 (quoting Bernini, 

. But this was not a mass arrest. Police did not arrest other nearby
reporters, but instead gave them an order to disperse. And, as discussed above,
Officer Holtan admitted Nieters, who was at least fifty to seventy-five feet away
from the group, was not part of the group of rioters he was chasing.
                                         -7-
Nicholson v. City of Los Angeles, 

 (9th Cir. 2019); see also Haynes
v. Minnehan, 

 (8th Cir. 2021) (explaining, in the context of an
investigatory stop, that “as new information flows in, a reasonable belief can
dissolve into an unreasonable one”). This is particularly true when there is a “clearly
established right to watch police-citizen interactions at a distance and without
interfering.” Chestnut v. Wallace, 

 (8th Cir. 2020). Because
material factual disputes preclude awarding qualified immunity, we reverse the
district court’s grant of summary judgment on Nieters’s unlawful seizure claim.

                             B. Excessive Force Claim

       We next turn to Nieters’s claim for excessive force. “[A]ll claims that law
enforcement officers have used excessive force—deadly or not—in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard . . . .” Graham v. Connor,

 (1989) (emphasis omitted). Therefore, to succeed on the first
prong of a claim of excessive force, a plaintiff must show that (1) the plaintiff was
seized, and (2) the officer used unreasonable force under the totality of the
circumstances. Pollreis v. Marzolf, 

 (8th Cir. 2023). In explaining
reasonableness, this court has said:

      The reasonableness of a use of force turns on whether the officer’s
      actions were objectively reasonable in light of the facts and
      circumstances confronting him, without regard to his subjective intent
      or motivation. We must consider the totality of the circumstances,
      including the severity of the crime at issue, whether the suspect poses
      an immediate threat to the safety of the officer or others, and whether
      the suspect is actively fleeing or resisting arrest.

Zubrod v. Hoch, 

 (8th Cir. 2018) (quoting Loch v. City of
Litchfield, 

 (8th Cir. 2012)). Thus, “[f]orce may be objectively
unreasonable when a plaintiff does not resist, lacks an opportunity to comply with


                                          -8-
requests before force is exercised, or does not pose an immediate safety threat.”
Wilson v. Lamp, 

 (8th Cir. 2018).

       Because officers have the right to make arrests and investigatory stops, they
are permitted to use some degree of physical coercion or threats to facilitate an arrest
or stop. 

 at 989–90. Threats to officer safety can also justify the use of force,
even if the suspect is not actively resisting. Brown v. City of Golden Valley, 

 (8th Cir. 2009). But an officer’s “use of force against a suspect who
was not threatening and not resisting may be unlawful.” Shannon v. Koehler, 

 (8th Cir. 2010). See, e.g., Small v. McCrystal, 

(8th Cir. 2013) (holding the use of force excessive in part because the suspect was
not in flight or resisting arrest), abrogated on other grounds by Laney v. City of St.
Louis, 

, 1157 n.2 (8th Cir. 2023).

       Viewing the totality of the circumstances in the light most favorable to
Nieters, there are genuine issues of material fact on whether there was an excessive
use of force. To begin, Officer Holtan arrested Nieters for failure to disperse—a
misdemeanor. Second, while Officer Holtan focuses on the fact there had been
“hours of criminal activity occurring” and that he was “under constant threat of harm
from active rioters,” he cannot point to any facts suggesting an immediate threat to
his safety or the safety of others. Zubrod, 

.

        Instead, Officer Holtan hangs his hat on the third factor, whether the suspect
was actively fleeing or resisting, arguing a reasonable officer would view Nieters
turning away as an attempt to flee. The problem is with the timing of Officer
Holtan’s actions. He testified he “almost simultaneously” gave Nieters the order to
get on the ground, while charging and pepper-spraying him. Nieters was a non-
violent alleged misdemeanant who was not given time to comply with the order to
get on the ground prior to Officer Holtan’s use of force. See Wilson, 

. When Officer Holtan began charging, Nieters had his hands in the air and stood
still but, at some point, Nieters turned his body away from Officer Holtan. Taking
this fact in the light most favorable to Nieters, a jury could conclude a reasonable
                                          -9-
officer would have interpreted Nieters’s action in turning his body as an attempt to
shield himself or the two cameras he wore from the impending impact of Officer
Holtan running at him rather than an attempt to flee. See Smith v. Kan. City, Mo.
Police Dep’t, 

 (8th Cir. 2009).

       Next, we must determine whether Nieters’s rights were clearly established in
this scenario. “Broadly speaking, [t]he right to be free from excessive force in the
context of an arrest is clearly established under the Fourth Amendment.” Peterson
v. Kopp, 

 (8th Cir. 2014) (alteration in original) (quoting Small,

), abrogated on other grounds by Laney, 

 n.2.
While we are not to define the issue “at a high level of generality,” Ashcroft v. al-
Kidd, 

, 742 (2011), “[a] general constitutional rule already identified in
the decisional law may apply with obvious clarity to the specific conduct in question,
even though the very action in question has not previously been held unlawful.”
Winslow v. Smith, 

 (8th Cir. 2012) (quoting Shekleton v.
Eichenberger, 

 (8th Cir. 2012)). “[O]fficials can still be on notice
that their conduct violates established law even in novel factual circumstances.”
Hope v. Pelzer, 

 (2002); accord Glover v. Paul, 

,
1024–25 (8th Cir. 2023).

       Numerous cases show that the identified general constitutional rule applies
with obvious clarity to the conduct in question. In Rokusek v. Jansen, we stated
“every reasonable official would have understood that he could not throw [the
plaintiff]—a nonviolent, nonthreatening misdemeanant who was not actively
resisting—face-first to the ground” even though the plaintiff failed to comply with
certain orders. 

 (8th Cir. 2018). In Bauer v. Norris, we
concluded that even verbal abuse by a nonthreatening misdemeanant does not justify
the use of force. 

, 412–13 (8th Cir. 1983). Finally, in Smith v. Kansas
City, Missouri Police Department, we held it was clearly established that an officer
violates a citizen’s rights by “knocking a non-resisting suspect to the ground . . . .”

. Thus, Nieters had a clearly established right to be free from
excessive force. See Westwater v. Church, 

 (8th Cir. 2023).
                                         -10-
                     C. First Amendment Retaliation Claim

       Finally, we turn to Nieters’s First Amendment retaliation claim. “The First
Amendment prohibits laws ‘abridging the freedom of speech.’” Houston Cmty. Coll.
Sys. v. Wilson, 

, 1259 (2022) (quoting U.S. Const. amend. I). Thus,
“as a general matter,” it “prohibits government officials from subjecting individuals
to retaliatory actions after the fact for having engaged in protected speech.” 

(cleaned up) (quoting Nieves v. Bartlett, 

 (2019)). To succeed
on a First Amendment retaliation claim Nieters must demonstrate: (1) he engaged in
protected First Amendment activity; (2) Officer Holtan took an adverse action that
would chill a person of ordinary firmness from continuing in that protected activity;
and (3) there was a but-for causal connection between Nieters’s injury and Officer
Holtan’s retaliatory animus. Quraishi v. St. Charles Cnty., Mo., 

(8th Cir. 2021) (setting forth the elements generally); Laney, 

(holding but-for causation is required to satisfy the third element). For a retaliatory
arrest claim there is an additional element: the defendant lacked probable cause or
arguable probable cause to arrest. Just, 7 F.4th at 768. However, “the no-probable-
cause requirement should not apply when a plaintiff presents objective evidence that
he was arrested when otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been.” Nieves, 

.

      Nieters argues Officer Holtan committed two acts of retaliation: the use of
force and the arrest. There is no debate whether the First Amendment protected
Nieters’s activity at the protest. Nor do the parties question whether Officer Holtan’s
actions would chill a person of ordinary firmness from continuing in the activity.
The dispute centers on whether Nieters can establish but-for causation and the lack
of probable cause for the retaliatory arrest claim.

       “Even viewing the facts in a light most favorable to [Nieters], causation is
missing.” Laney, 

. Nieters must show he was “singled out because
of [his] exercise of constitutional rights.” Peterson, 

 (alteration in
original) (quoting Baribeau, 

). “The causal connection is generally
                                         -11-
a jury question unless the question is so free from doubt as to justify taking it from
the jury.” 

 (cleaned up) (quoting Revels v. Vincenz, 

 (8th
Cir. 2004)). Nieters fails to point to any evidence in the record to show that Nieters’s
First Amendment expression was the but-for cause of Officer Holtan’s decision to
arrest Nieters or to use force. Though Nieters points to Officer Holtan’s admission
that he believed Nieters was a protestor, this statement is insufficient to show that
Officer Holtan singled out Nieters from other protestors. Because Nieters failed to
show the causal connection between his protected expression and Officer Holtan’s
adverse action, we affirm the district court’s grant of summary judgment.

                                   III. Conclusion

      We reverse the district court’s order granting summary judgment on the
unlawful seizure and excessive force claims but affirm the district court’s order
granting summary judgment dismissing the retaliation claim.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

      In my view, the district court correctly granted Officer Holtan’s motion for
summary judgment on Nieters’s unlawful-arrest claim. Thus, I respectfully dissent
from Part II-A of the court’s opinion.

        As the court recognizes, even if a police officer violates a federal right, he is
still entitled to qualified immunity unless the unlawfulness of his conduct was clearly
established. District of Columbia v. Wesby, 

, 62-63 (2018). To be clearly
established, the plaintiff must show that the legal principle was “settled law” dictated
by controlling authority or a robust consensus of cases. Id. at 63; see also Martin v.
Turner, 

 (8th Cir. 2023). The clearly established standard
“requires that the legal principle clearly prohibit the officer’s conduct in the
particular circumstances before him.” Wesby, 583 U.S. at 63. In the unlawful-arrest
context, we also consider as a part of the clearly established analysis whether the
officer “reasonably but mistakenly concluded that probable cause was present.”
                                          -12-
Brown v. City of St. Louis, 

 (8th Cir. 2022). If the officer
made such a reasonable mistake, he had arguable probable cause and is entitled to
qualified immunity. 

. These “demanding” principles protect all but the
plainly incompetent or those who knowingly violate the law. Wesby, 583 U.S. at 63.
Applying them, I would hold that Officer Holtan had at least arguable probable cause
to arrest Nieters for failure to disperse.

       Under Iowa law: “A peace officer may order . . . persons in the immediate
vicinity of a riot or unlawful assembly to disperse. Any person within hearing
distance of such command, who refuses to obey, commits a simple misdemeanor.”

. Before Nieters’s arrest, dispersal orders were given to an
unlawful assembly at the Iowa Capitol grounds. Despite these orders, a “large”
group of people at the Capitol remained together and began travelling westward
down Locust Street. Nieters, a journalist, though not displaying press credentials,
chose to follow this group. Dispatchers provided real-time information to Officer
Holtan and other officers about this group’s movements through Des Moines.
Dispatchers notified officers of the group’s continued presence on Locust Street and
that some members of the group were running north on a side street.

       As Officer Holtan chased those running on the side street back towards
Locust, he encountered Nieters, who wore a helmet and respirator. Officer Holtan
placed him under arrest. Given Nieters’s appearance and the information previously
relayed by dispatch, a reasonable officer could have concluded that he had probable
cause to believe that Nieters was in the immediate vicinity of an unlawful assembly,
heard dispersal orders, and failed to comply with the order. See 

;
cf. White v. Jackson, 

 (8th Cir. 2017) (“The officers arrested
[plaintiff] while he was standing with a group of people in an area that officers had
been attempting to clear. . . . [Officers] could have reasonably concluded that
[plaintiff] . . . chose not to disperse.”).

      As the district court held, the totality of the circumstances confirms that
Officer Holtan had arguable probable cause to believe that Nieters failed to disperse.
                                        -13-
The court now reverses this decision because Nieters claims never to have heard the
dispersal orders and because Nieters was fifty to seventy-five feet away from the
nearest person Officer Holtan had previously been chasing. See ante at 6-7. To my
mind, these two facts, the first of which Officer Holtan could not have known, do
not show that Officer Holtan’s actions were objectively unreasonable given Nieters’s
appearance, position on Locust Street, and the information relayed to Officer Holtan
by dispatch.

      The court then assumes that, even if Officer Holtan had arguable probable
cause when he seized Nieters, it was extinguished when “Nieters immediately
informed Officer Holtan that he was a journalist and he provided press credentials.”
Ante at 7. The court mentions that Officer Holtan did not want to be seen as giving
a journalist special treatment and that this somehow further disproves (or at least
creates a dispute of fact about) Officer Holtan’s arguable probable cause. Ante at 7.

       The court does not explain how these post-seizure revelations negate the facts
that it previously assumed established arguable probable cause—perhaps because
we have previously rejected the court’s implied logic. First, the court cannot
consider Nieters’s post-arrest conduct to determine whether Officer Holtan had
arguable probable cause at the time of the seizure. See Amrine v. Brooks, 

 (8th Cir. 2008) (“As probable cause is determined at the moment the arrest
was made, any later developed facts are irrelevant to the probable cause analysis for
an arrest.” (internal quotation marks omitted)); Lambert v. City of Dumas, 

, 935 n.6 (8th Cir. 1999) (“The relevant inquiry is whether the arresting officers
had probable cause to arrest [plaintiff] at the time of the arrest, not whether the
officers’ decision to arrest [plaintiff] can be justified by information learned after the
arrest.”); see also Torres v. Madrid, 592 U.S. ---, 

 (2021)
(noting that an arrest is a “seizure of the person” that occurs when an officer uses
force with intent to restrain).

      Second, even if the court could consider the post-arrest conduct, to the extent
that Nieters’s claimed status as a member of the press tended to show that he did not
                                          -14-
fail to disperse, Officer Holtan was free to disregard Nieters’s claim in light of the
facts known to him. Cf. Borgman v. Kedley, 

 (8th Cir. 2011)
(explaining that officers “need not rely on an explanation given by the suspect”);
Wesby, 583 U.S. at 67-68 (noting broad agreement “that innocent explanations—
even uncontradicted ones—do not have any automatic, probable-cause-vitiating
effect”). Third, the court’s analysis apparently turns in part on Officer Holtan’s
stated desire not to be seen as giving a journalist special treatment, despite the
Supreme Court’s admonition that an arresting officer’s “state of mind” or
“subjective reason for making the arrest” is “irrelevant to the existence of probable
cause.” Devenpeck v. Alford, 

 (2004).

       Demonstrating the reasonableness of Officer Holtan’s decision and further
proving that he was not plainly incompetent when making it, “neither the panel
majority nor [Nieters] have identified a single precedent—much less a controlling
case or robust consensus of cases—finding a Fourth Amendment violation under
similar circumstances.” See Wesby, 583 U.S. at 65. Nor do they assert that this is
the “obvious case where a body of relevant case law is not needed.” See id. (internal
quotation marks omitted). In fact, no controlling decision prior to the court’s opinion
here had prohibited an arrest for failure to disperse under Iowa law under the
“particular circumstances” before Officer Holtan. See id. at 63. Instead, the court
masks its incomplete analysis by doing what the Supreme Court has repeatedly told
us not to do: define the putative clearly established right at a high level of generality.
See ante at 5 (“At the time of Nieters’s arrest, it was clearly established that a
warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.”
(internal quotation marks omitted)).

       For these reasons, I conclude that Nieters failed to show a clearly established
right to be free from arrest for failure to disperse. I therefore would affirm the district
court’s grant of qualified immunity and summary judgment to Officer Holtan on
Nieters’s unlawful-arrest claim.
                          _____________________________


                                           -15-