Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 1 of 25 PageID #: 605

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MUSTAFA ABDULLAH,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF ST. LOUIS, MISSOURI, )

et al.,

)

)

Defendants.

)

Case No. 4:14CV1436 CDP

MEMORANDUM, ORDER AND PRELIMINARY INJUNCTION Plaintiff Mustafa Abdullah seeks a preliminary injunction enjoining certain law enforcement agencies from prohibiting him and protesters in Ferguson, Missouri, from standing still when they are not violating any law. Defendants are St. Louis County and Ronald K. Replogle, in his capacity as Superintendent of the Missouri Highway Patrol. The evidence presented at the preliminary injunction hearing shows that plaintiff is likely to succeed on the merits and that he will suffer irreparable harm unless the injunction is granted. As it was applied in this case, the practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution. Because it is likely that these agencies will again apply this unconstitutional policy to plaintiff and the peaceful protesters he wishes to meet with, I will enter a preliminary injunction.

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 2 of 25 PageID #: 606
Nothing in this preliminary injunction prevents defendants or any other law enforcement officers from enforcing the Missouri failure-to-disperse law or any other law. Law enforcement must be able to use the full range of lawful means to control crowds and to protect people and property from acts of violence and vandalism, including ordering a crowd to move or disperse if law enforcement officers believe the crowd is assembled for the purpose of violence or rioting. Nor does this order prevent authorities from restricting protesting in certain areas or making other reasonable restrictions on the protests’ time, place and manner. This injunction prevents only the enforcement of an ad hoc rule developed for the Ferguson protests that directed police officers, if they felt like it, to order peaceful, law-abiding protesters to keep moving rather than standing still.
Findings of Fact After Michael Brown was shot and killed by a Ferguson, Missouri, police officer on August 9, 2014, crowds of citizens gathered near the shooting site and at other locations in Ferguson. Some people in the crowd had come to protest; others had come for other reasons, such as praying or bearing witness or providing food and water to those who were protesting. Most people were assembled peacefully and were not there to commit any acts of violence.
- 2 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 3 of 25 PageID #: 607
During the nights following the shooting, however, and for several weeks afterward, the crowds became unruly and some in the crowds became violent. On Sunday night, August 10, a Quick Trip gas station and convenience store was looted and then burned to the ground. On other nights more businesses were looted and suffered extensive property damage. Some in the crowds threw rocks, bricks, water bottles and other objects at the police. Some in the crowds fired guns in the air and at the police; some threw Molotov cocktails; some kicked or otherwise damaged police vehicles. A number of people were injured. One night police found an unconscious person who had been severely beaten by someone in the crowd. On many occasions the people in the front of the crowds were not committing acts of violence; objects were thrown from those standing farther back in the crowd, where police could not identify them.
A number of police departments, including the St. Louis County Police Department and the Missouri State Highway Patrol, were called in to assist the Ferguson Police Department. Law enforcement authorities used many methods to try to control the crowds and prevent further violence, including using tear gas and smoke canisters. Not surprisingly, the violence generally began after dark, and crowds during the day were mostly peaceful.
- 3 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 4 of 25 PageID #: 608
On August 14 Missouri Governor Jay Nixon ordered the Missouri State Highway Patrol to take charge of law enforcement in the area. On August 16 Governor Nixon signed an executive order declaring a state of emergency and officially ordered other law enforcement agencies to assist the Patrol when requested. Once the Highway Patrol was in control, it formed a unified command structure with other police departments, including the St. Louis County Police Department. That group established a temporary command center about a mile from the center of the protest activity.
During the night of Sunday, August 17, a large and unruly crowd began marching toward the law enforcement command center, with some in the crowd announcing that they were going to overrun the command center. Although that crowd was ultimately turned back, the following day the unified command structure decided on the strategy that is at issue in this lawsuit.
The strategy adopted on August 18 called for law enforcement officers to tell protesters that they had to keep moving and that they could not stand still on the sidewalks. This was communicated to the officers at the regular roll calls, and the officers were told to use discretion, but were not told any particular circumstances or factors that they should consider in using that discretion.
- 4 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 5 of 25 PageID #: 609
Plaintiff Mustafa Abdullah works as a program associate for the American Civil Liberties Union, and part of his job duties include observing protest sites such as the one in Ferguson and passing out “Know Your Rights” cards.1 He also acts as a legal observer for the ACLU and attempts to engage in conversations with people at the demonstrations to listen to their stories and understand their concerns. He sees part of his role as facilitating communications between law enforcement officers and the public, and he encourages people to follow the directions of the police even if he believes the instructions are problematic. Before the keepmoving strategy began, Abdullah had visited the protest site and been able to talk to groups of people (while standing still) about their rights, and he wants to continue doing that, without being forced to move. He testified that he has been involved in many community meetings as part of his work but had never before been forced to have a meeting while walking. He is not a protester himself, has no desire to engage in violence or civil disobedience, and does not want to be arrested.
After the ACLU received reports that police were not allowing people to stand still on August 18, plaintiff went to the area. As soon as he began talking to people on the sidewalks, he was approached by St. Louis County police officers
1 Some of the advice on the cards tells people who are stopped for questioning to “Stay Calm. Don’t Run. Don’t argue, resist or obstruct the officer even if you are innocent or your rights are being violated.”
- 5 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 6 of 25 PageID #: 610
and told he must keep moving and could not stand still. One person asked plaintiff to join her in prayer, and police said they could pray while they were walking. The people plaintiff was talking to were not engaged in any violence. This happened in the daytime, and there was not a large crowd present. Plaintiff testified that after being told repeatedly to keep moving or be arrested, he left the scene because he did not want to be arrested.
Plaintiff brought this suit later on August 18, and I held a hearing on his motion for a temporary restraining order that same day. At the hearing the defendants provided evidence that earlier that afternoon they had established an alternate place where protesters and others could gather and express themselves without being required to keep moving. I denied the request for a temporary restraining order.
After the hearing one of the ACLU lawyers went to Ferguson and tried to find the alternative protest area. Highway Patrol officers told him that they did not know anything about an approved protest zone. He was twice told to keep moving while he attempted to ask other people whether they knew of an alternative site. He returned to the area the next morning, on August 19, again to try to locate the alternate protest zone. The place that seemed to correspond to the testimony was either an open field, or a parking lot by a furniture store. The owner of the
- 6 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 7 of 25 PageID #: 611
furniture store told him that the parking lot was his private property and that he had not agreed it could be used as a protest zone. The witness asked several police officers the location of the area designated for protesters to stand still and they either told him there was no such thing or that they had no idea what he was talking about. He also observed police telling people they must keep walking, even though there was no unrest or violent behavior at that time.
Later on August 19 the Highway Patrol issued a press release indicating that a new “Protester Assembly Zone” had been established. The ACLU attorney again went to look for the zone, and this time saw a sign saying “Approved Assembly Area” near the same parking lot he had been to that morning. It was south of the main area of the protests and was not within sight of a new “Media Staging Area” that was established at the same time. Unlike other places where demonstrators had been gathering, the designated area had no access to water or restroom facilities. The testimony established that throughout the August and September periods, very few people used the area, although some used it to rest when their feet became too tired from walking.
Plaintiff presented the testimony of additional witnesses who had been in the area during different times in the days and weeks after the shooting. One of the witnesses testified about his live tweets from the area, documenting times as late as
- 7 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 8 of 25 PageID #: 612
August 23 when he was being told he would be arrested if he didn’t keep moving, and then other times that same day when people were standing still with no interference from police. Others testified about being told to move, being told they would be arrested if they did not move, and seeing people arrested after they had failed to move.
The evidence from plaintiff’s witnesses shows that the police, including those from St. Louis County, told many people who were either peacefully assembling or simply standing on their own that they would be arrested if they did not keep moving. Some law enforcement officers told people that they could stand still for no more than five seconds. Others gave instructions that people were walking too slowly, or that they could not walk back and forth in a small area. Some law enforcement officers did not make people keep moving, others did. Some officers applied the strategy to reporters, others did not. Many officers told people who were standing in small groups on the sidewalks during the daytime hours that they would be arrested if they did not keep moving.
At some point the Ferguson Police Department resumed control of the situation. On August 27 the command center that had been established was disassembled; the governor lifted the state of emergency on September 3, 2014. Although the Ferguson Police Department resumed its role as the agency
- 8 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 9 of 25 PageID #: 613
maintaining security within its city limits, it can, and has, sought assistance from St. Louis County, the Missouri Highway Patrol, and other agencies. Evidence showed that Highway Patrol officers were working in Ferguson as recently as September 27, and that on the same day Ferguson police officers told demonstrators that they must keep moving or they would be arrested. In the video of that encounter the officers told demonstrators their authority for the instruction was a loitering ordinance, and there was no reference to the failure-to-disperse law.
Defendants’ witnesses testified that the unified command structure, consisting of the top officials of the Highway Patrol, St. Louis County Police, and St. Louis City Police, jointly decided to use this keep-moving strategy. These witnesses’ testimony was inconsistent, however, about what the strategy meant and how it was to be enforced. The St. Louis County Police Chief testified that the strategy was only intended to be used when crowds became dangerously large and unruly, which had mostly happened in the nighttime. The Chief testified that he had been instructed to use “failure to disperse” to enforce the strategy. He also testified that now that the Ferguson Police Department is the law enforcement agency in charge of the area, the St. Louis County police will not be using the keep-moving strategy. His subordinate, however, who was responsible for communicating the strategy to the officers in the field, testified to no such
- 9 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 10 of 25 PageID #: 614
limitations. Instead he said officers were just told to use their discretion. He testified that the strategy could be used at any time, and did not require a riot or unlawful assembly. He also testified that the strategy was still in effect and that he would use it again if sent back to Ferguson. The Highway Patrol Field Operations Commander (the second highest-ranking officer in the Highway Patrol) testified that because the legal authority for the keep-moving strategy was the failure-todisperse law, people who refused to keep moving could only be arrested if the elements of that law were met.
Conclusions of Law Plaintiff brought suit under 42 U.S.C. § 1983, alleging that defendants’ actions and policies infringe upon his First Amendment rights, including the right to assemble. In a separate count he alleges that the policy violates the Fourteenth Amendment’s Due Process clause because the policy fails to provide sufficient notice of what is illegal and because it was enforced arbitrarily. Only St. Louis County and Ronald K. Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol, are defendants. The Ferguson Police Department is not a defendant. In determining whether to issue a preliminary injunction, the Court must consider the following four factors: (1) the threat of irreparable harm to the movant
- 10 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 11 of 25 PageID #: 615
if the injunction were not granted; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties to the case; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc).
1. Likelihood of success on merits a. Failure to Disperse In their briefs, defendants argued that plaintiff is asking me to enjoin enforcement of what the police refer to as the “failure-to-disperse” statute, although they retreated somewhat from that argument at the hearing. In any event, the conduct that plaintiff complains of here is not enforcement of that law. Mo. Rev. Stat. § 574.060, entitled “Refusal to disperse,” states that “[a] person commits the crime of refusal to disperse if, being present at the scene of an unlawful assembly, or at the scene of a riot, he knowingly fails or refuses to obey the lawful command of a law enforcement officer to depart from the scene of such unlawful assembly or riot.” Mo. Rev. Stat. § 574.060. An “unlawful assembly” requires that six or more people assemble and agree to violate criminal laws with force or violence. Mo. Rev. Stat. § 574.040. A “riot” requires that the six or more assembled people actually violate criminal laws with force or violence. Mo. Rev.
- 11 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 12 of 25 PageID #: 616
Stat. § 574.050. An unlawful assembly requires actions that make it reasonable for rational people in the area “to believe the assembly will cause injury to persons or damage to property and will interfere with the rights of others by committing disorderly acts.” State v. Mast, 713 S.W.2d 601, 603-04 (Mo. Ct. App. 1986). “[E]very person who is present and cognizant of the unlawful acts being committed by the other members of the assembly can be found guilty of being unlawfully assembled.” Id. at 604. Thus, even people who are not themselves committing acts of violence must disperse when ordered to do so. Id. at 604-605.
This statute provides no defense to this suit for several reasons. First, people were not told to “disperse” – in other words, to leave the area. Instead they were told to keep moving. Second, the order was given even when there were fewer than six people gathered. The evidence included examples where the order was given to one person alone, to three people attempting to pray, to a reporter and one other person, as well as to larger groups. And the order was given to people who were doing nothing to indicate they intended to violate laws of any sort, much less to engage in violence. In fact, nearly all of plaintiff’s fact witnesses testified that despite gatherings that were peaceful and law-abiding at the time, officers told people they must keep moving or they would be arrested. Unlike the defendant in Mast, who was told to disperse and was arrested only after his group wreaked
- 12 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 13 of 25 PageID #: 617
significant havoc upon people and property, people in Ferguson were subject to the keep moving-rule for no reason other than that they were standing still on the public sidewalks.
There may have been confusion about the legal basis for the keep-moving rule, but there is no doubt that people were ordered to keep moving in situations that could never have been covered by the refusal-to-disperse law.
b. Municipal Liability St. Louis County argues that plaintiff is not likely to succeed on the merits against the County because its officers acted on orders from the Highway Patrol and because the orders to keep moving were not part of a policy or custom of the County. The first argument is refuted by the evidence, which showed that the County did not blindly follow orders of the Highway Patrol. Instead, high-ranking County police officers were actively involved in determining the strategies to use. Although the Highway Patrol was the ultimate authority, that did not mean that the County was somehow required to follow orders that violated people’s constitutional rights. This is far different from the situation where state law mandates a municipality must act in a certain way with no exercise of any discretion. See Vives v. City of New York, 524 F.3d 346, 353 (2nd Cir. 2008); see also Snyder v. King, 745 F.3d 242, 249 n.3 (7th Cir. 2014). Here the County police
- 13 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 14 of 25 PageID #: 618
had a seat at the table in determining the strategy and were part of the final policymaking group.
The second argument – that municipal liability cannot be imposed in this situation because there was no custom or policy – must be analyzed under the authority of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and the cases following it. In Monell, the Supreme Court held that municipalities may be liable for monetary, declaratory or injunctive relief under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the municipality. Monell, 436 U.S. at 690. To establish liability for a “custom,” plaintiff must show that there is: (1) a continuing, widespread, and persistent pattern of unconstitutional misconduct, (2) deliberate indifference or tacit authorization of such conduct by policymaking officials after notice of the conduct, and (3) that the custom caused the violation of plaintiff’s constitutional rights. See Johnson v. Douglas Cnty Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013); Jane Doe A v. Special Sch. Dist. of St. Louis, 901 F.2d 642, 646 (8th Cir. 1990).
Plaintiff is likely to succeed on the issue of municipal liability. In arguing that there is no policy or custom, St. Louis County apparently wishes the court to conclude that all of the different officers who took the same actions over a period
- 14 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 15 of 25 PageID #: 619
of several days were doing so on their own, without any orders or directions from the County police department policymakers. This argument is contradicted by the facts of the case. The evidence presented at the hearing indicates that plaintiff will be able to show either a policy – albeit unwritten and vague – or, at the least, a custom. Both the St. Louis County Police Chief and the Precinct Captain who testified were directly involved in developing and enforcing the keep-moving strategy, along with the Highway Patrol Captain who had been placed in charge of the situation by the Governor. This was a deliberate strategy, developed after the unified command structure met and discussed options. It was communicated to the officers on the street at several different roll call meetings, and continued in use for a period of days (and according to at least one witness, is still in effect). This is a far different situation from cases like Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012). In that case municipal liability was rejected where the decision had been made by a police officer who had no ultimate policymaking authority for the police force. There the decision-maker was the officer in charge on the street when a demonstration became unruly, and he made the decision at that time to encircle the crowd and arrest everyone. In contrast, the Ferguson decision was made by policymakers gathered to plan an appropriate course of action for future events. The officers on the street who were telling people they would be arrested if they
- 15 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 16 of 25 PageID #: 620
stood still were following the policy directives given at several roll calls on several different days.
It is also significant that the policymakers actually knew that they could not lawfully arrest people simply for standing peacefully on the sidewalk. The top members of the unified command decided that they would use the failure-todisperse law as their legal justification for the orders that all the demonstrators must keep moving, but they also knew that to arrest someone legally they would have to have probable cause to believe that six or more people were gathered for the purpose of violence and had refused an order to disperse. The policymakers knew the policy was being used against peaceful citizens but did not stop the practice. This evidence is sufficient at the preliminary injunction stage to show likelihood of success in establishing municipal liability.
c. Due Process Plaintiff argues that the keep-moving rule as it was implemented is unconstitutionally vague in violation of his due process rights. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Criminal laws must be defined in a way that allows ordinary people to understand what conduct is against the law and does not encourage arbitrary and
- 16 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 17 of 25 PageID #: 621
discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983). For example, in City of Chicago v. Morales, 527 U.S. 41 (1999), an ordinance that allowed police to arrest gang members who were “remain[ing] in any one place with no apparent purpose” was invalid because it gave both “too much discretion to the police and too little notice to citizens who wish to use the public streets.” Id. at 47, 64 (brackets in original). Importantly, “[w]here a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the [void-for-vagueness] doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).
Plaintiff is likely to succeed on the merits of showing that the keep-moving policy violates due process in both ways. Of course, in this situation there is no statute or ordinance being challenged. Rather, it is an unwritten policy, given to officers at their roll calls, instructing them to order people to keep moving whenever the officers thought it was appropriate to do so. Some officers told everyone to keep moving, so if plaintiff was unlucky enough to be standing in the vicinity of those officers, he would be told to move. Some officers told people they would be arrested if they did not move, but at least one officer told people that they had to keep moving but probably would not be arrested if they failed to
- 17 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 18 of 25 PageID #: 622
comply. Some officers interpreted the policy to mean that people had to walk at a certain speed, others told people that they could not walk back and forth in a certain-sized area. Some officers applied it to members of the press, while others did not. Plaintiff and his other witnesses testified that they could not tell what would or would not be allowed at any given moment.
The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street. This policy “necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat.” See Kolender, 461 U.S. at 360 (brackets and quotation marks omitted). Like the gang loitering ordinance found unconstitutional in Chicago v. Morales, 527 U.S. 41 (1999), the keep-moving policy cannot meet constitutional standards for definiteness and clarity.
d. First Amendment Plaintiff’s complaint alleges that the keep-moving policy infringed on his First Amendment rights, including the right to peacefully assemble and engage in conversations with others on a public sidewalk. Defendants concede, as they must, that the public streets or sidewalks where the demonstrations have taken place are considered a traditional public forum. See, e.g., Frisby v. Schultz, 487 U.S. 474, 480 (1988) (discussing forum analysis). “Consistent with the traditionally open
- 18 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 19 of 25 PageID #: 623
character of public streets and sidewalks,” the Supreme Court has held that the government’s ability to restrict speech in these locations is very limited. McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014). But the “rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” Cox v. Louisiana, 379 U.S. 536, 554 (1965). “Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” McCullen, 134 S.Ct. at 2529 (brackets and quotation marks omitted). See also Phelps-Roper v. Koster, 713 F.3d 942, 950 (8th Cir. 2013).
I conclude that it is likely plaintiff will prevail on the merits of his First Amendment claim, and given my conclusions about the Due Process claim, I need not at this time discuss the First Amendment issues in detail. The keep-moving policy – as it was applied to plaintiff and others – prohibited citizens from peacefully assembling on the public sidewalks. Although the state has a valid interest in maintaining order on its streets and sidewalks and in preventing violence
- 19 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 20 of 25 PageID #: 624
by crowds, this interest is not sufficient to apply such a blanket rule to people assembling peacefully. See Cox, 379 U.S. at 544-545 (in addition to violating due process, statute that prohibited people from congregating on sidewalk infringed upon First Amendment rights to speech and assembly of peaceful protesters). The evidence showed that the strategy burdened substantially more speech than was necessary to achieve its legitimate goals. In fact, one of the police witnesses testified that it only worked well during the daytime when there were no large crowds and no threats of violence – when the crowds grew unruly, telling them to keep moving was not an effective strategy. Thus, defendants’ own evidence shows that this strategy fails the requirement that “the means chosen are not substantially broader than necessary to achieve the government’s interest,” as described in Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989).
The parties have not cited any cases where rules similar to the keep-moving strategy are considered, but in Foti v. City of Menlo Park, 146 F.3d 629, 642-43 (9th Cir. 1998), the Ninth Circuit Court of Appeals held that an ordinance requiring persons carrying signs to be actually moving was unconstitutional because it was not narrowly tailored to serve the state’s interest in the free flow of pedestrian traffic on sidewalks. Plaintiff is likely to be able to prove the same failing here. And even if the restriction could be justified somehow, the alternative protest zone
- 20 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 21 of 25 PageID #: 625
belatedly established likely did not provide an adequate alternative forum for people to assemble and protest.
2. Threat of Irreparable Harm Defendants argue that plaintiff cannot show that he is threatened with irreparable harm because they are no longer in charge of keeping order in Ferguson. They also assert that they stopped using the keep-moving strategy. As discussed above, the evidence was conflicting about whether the policy was still in effect, and there has been no assurance that it would not be implemented again as the protests continue. Many cases have held that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)). Plaintiff testified that he wants to continue his work during the demonstrations without fear that he will be arrested if he stops walking. Public gatherings and protests related to Michael Brown’s death are continuing and will continue into the future. It is very likely that defendants will continue to be involved. State troopers and St. Louis County police can be called in to assist at
- 21 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 22 of 25 PageID #: 626
any time. Ferguson’s relatively small police force is likely to need future assistance from those agencies.2
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Iowa Right to Life Comm. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999); Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995). Plaintiff has shown that he will suffer irreparable harm if the injunction is not issued.
3. The Public Interest and Balance of Harms The public interest favors protecting core First Amendment freedoms. See, e.g., Iowa Right to Life, 187 F.3d at 970; Kirkeby, 52 F.3d at 775; see also PhelpsRoper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds, Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc). Both the defendants and the public have a legitimate interest in maintaining order and protecting the public safety. Both the defendants and the public have a legitimate interest in assuring that police officers, who have been the target of much of the violence in Ferguson, are not hurt. However, there is no evidence that these interests would be harmed if defendants are prevented from applying the keep-
2 Plaintiffs have filed a motion to supplement with evidence showing that in the last few days the St. Louis County Police Department has assumed control of security regarding Ferguson protests.
- 22 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 23 of 25 PageID #: 627
moving rule to people who are peacefully assembled on the sidewalks. Neither the public interest nor the interests of the defendants favor restricting the core constitutional rights of assembly and speech in the arbitrary and vague manner caused by the keep-moving rule.
4. Bond Pursuant to Rule 65(c), Fed. R. Civ. P., the Court “may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Plaintiff has asked that the court waive the bond or require bond in only a nominal amount. Defendants have not briefed the issue of the amount of a bond. Given the constitutional issues at stake here and taking into account plaintiff’s status as employee of a not-for-profit entity, I will set the bond in the amount of $100.
Conclusion Plaintiffs are entitled to the entry of a preliminary injunction enjoining defendants from telling citizens that they must keep moving, or from threatening them with arrest if they stand still, so long as those citizens are not committing a crime, engaging in violent acts, or participating in a crowd that contains other people doing those things.
- 23 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 24 of 25 PageID #: 628
This injunction does not prevent defendants or other law enforcement agencies from using all lawful means to control crowds and protect against violence. Missouri’s refusal-to-disperse law is not restricted by this injunction. Where there is an unlawful assembly or riot, the police can order persons to disperse and can arrest those who do not. If a crowd is becoming unruly, the police may find it necessary to order the crowd to disperse – including persons who are not committing crimes or violent acts – and the police may also tell an unruly crowd to move to a different place. From time to time this may mean that citizens who are themselves peaceful but who are part of a crowd that is becoming violent must obey these orders or face arrest. This injunction merely prohibits that kind of directive to peaceful citizens who are committing no crimes, whether they are doing so singly or in a law-abiding group.
The rule of law is essential to our constitutional system of government, and it applies equally to law enforcement officers and to other citizens. Citizens who wish to gather in the wake of Michael Brown’s tragic death have a constitutional right to do so, but they do not have the right to endanger lives of police officers or other citizens. The police must be able to perform their jobs, and nothing in this order restricts their ability to do that. Accordingly,
- 24 -

Case: 4:14-cv-01436-CDP Doc. #: 51 Filed: 10/06/14 Page: 25 of 25 PageID #: 629
IT IS HEREBY ORDERED that plaintiff’s motion for a preliminary injunction [#14] is granted, and defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them, are enjoined from enforcing or threatening to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or order to move individuals who are violating no statute or regulation and who are peaceably standing, marching, or assembling on public sidewalks in Ferguson, Missouri.
IT IS FURTHER ORDERED that this order shall not prevent defendants from enforcing the Missouri refusal-to-disperse statute, Mo. Rev. Stat. §574.060.
IT IS FURTHER ORDERED that this injunction becomes effective only upon plaintiff’s posting a bond in the amount of $100, and remains in effect until entry of judgment on the merits or further order of the court.

Dated this 6th day of October, 2014.

CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

- 25 -

 
 Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 1 of 8 PageID #: 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Mustafa Abdullah,

)

)

Plaintiff,

)

)

v.

) No.

)

County of Saint Louis, Missouri,

)

)

Ronald K. Replogle, in his official capacity

)

as Superintendent of the Missouri Highway )

Patrol, and

)

)

John Does 1-5, in their individual capacities, )

)

)

Defendants.

)

4:14-cv-1436

VERIFIED COMPLAINT INTRODUCTION
1. This is a civil rights action filed by Mustafa Abdullah, an individual who, like many others, has been ordered without lawful justification to refrain from standing for more than five seconds on public sidewalks in the City of Ferguson or face arrest. He challenges the practice of ordering individuals who are violating no law to refrain from gathering or standing on public sidewalks and threatening arrest for a failure to comply.
2. There are a large number of demonstrators who have taken to the public streets and sidewalks of Ferguson, Missouri, to express their opinions about how local law enforcement officials conduct themselves. As of the morning of August 18, 2014, Defendants have responded by enforcing a practice of ordering individuals who are violating no law to refrain from gathering

1

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 2 of 8 PageID #: 2
or standing for more than five seconds on public sidewalks and threatening arrest for noncompliance.
3. Plaintiff asks this court to enjoin the practice of ordering individuals who are violating no law to refrain from gathering or standing for more than five seconds on a public sidewalk and threatening arrest for non-compliance, declare the practice unconstitutional on its face and as-applied, and award nominal damages.
JURISDICTION AND VENUE 4. This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiff’s civil action arising under the Constitution of the United States. 5. In addition, this Court has original jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) to redress the deprivation, under color of state law, of any right, privilege, or immunity secured by the Constitution of the United States. 6. Venue lies in the United States District Court for the Eastern District of Missouri because a substantial part of the events giving rise to Plaintiff’s claims occurred in the County of Saint Louis, Missouri. 28 U.S.C. § 1391(b)(2). 7. Divisional venue is in the Eastern Division because the events leading to the claim for relief arose in the County of Saint Louis, which is located in the County of Saint Louis, Missouri. E.D. MO. L.R. 2.07(A)(3), (B)(1).
PARTIES 8. Plaintiff, Mustafa Abdullah, resides in Missouri. 9. Defendant County of Saint Louis, Missouri, is a political subdivision of the State of Missouri and is participating in and directing law enforcement officers’ practice of ordering
2

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 3 of 8 PageID #: 3
individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks and threatening arrest for non-compliance.
9. Defendant Ronald K. Replogle is sued in his official capacity as Superintendent of the Missouri State Highway Patrol. The Missouri State Highway Patrol is an agency of the State of Missouri and is participating in and directing law enforcement officers’ practice of ordering individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks and threatening arrest for non-compliance.
10. Defendants John Doe 1 – 5 are individual police officers sued in their individual capacities. On August 18, 2014, they ordered Plaintiff, and others, to refrain from gathering or standing for more than five seconds on public sidewalks and threatened with arrest for noncompliance.
11. Plaintiff is unable to identify the individual officers at this time because they had removed their nametags.
12. All actions by Defendants, their officers, employees, or agents, described herein are taken under color of state law.
FACTS 13. On August 9, 2014, a police officer of the City of Ferguson’s police department shot and killed Michael Brown, who was unarmed. 14. Many members of the community have responded with anger at the police. 15. As a result, there have been frequent demonstrations on the public streets and sidewalks of Ferguson.
3

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 4 of 8 PageID #: 4
16. At these demonstrations, protestors are voicing their opinions about such issues of public concern as the relationship between police and the community, the frequency with which police officers shoot unarmed black men, and the militarization of local police forces.
17. Defendants’ response to the demonstrations, including the use of force, ordering peaceful protestors to disband and evacuate the streets and sidewalks, placing restrictions on the ability of the media to witness and report on unfolding events, and ordering protestors and observers to stop documenting and videotaping the demonstrations, has been controversial.
18. There is widespread interest in Defendants’ tactics, which raise questions about whether a military response to protest is consistent with the values of the United States, as well as the lack of transparency in the handling of the shooting investigation and response to the unrest that followed.
19. Beginning around 11:00 a.m. on August 18, 2014, the American Civil Liberties Union of Missouri received reports that law enforcement officials were ordering individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks and threatening arrest for non-compliance.
20. Plaintiff went to Ferguson to investigate the reports. 21. On five separate occasions within a period of approximately one hour at different locations, Plaintiff was ordered by law enforcement officials to refrain from gathering or standing for more than five seconds on public sidewalks and threatened with arrest for noncompliance. 22. Plaintiff was at no time violating any law. 23. Numerous other individuals in the area, including members of the media, were similarly ordered by law enforcement officials to refrain from gathering or standing for more
4

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 5 of 8 PageID #: 5
than five seconds on public sidewalks and threatened with arrest for non-compliance. They, too, were violating no law.
24. When inquiries were made to law enforcement officers regarding which law prohibits gathering or standing for more than five seconds on public sidewalks, the officers indicated that they did not know and that it did not matter. The officers further indicated that they were following the orders of their supervisors, whom they refused to name.
25. Upon information and belief, Defendants have arrested multiple individuals today for gathering or standing for more than five seconds on public sidewalks.
COUNT I Violation of First and Fourteenth Amendments
to the United States Constitution 26. Plaintiff repeats, re-alleges, and incorporates by reference the allegations in the foregoing paragraphs of this Complaint as if set forth here verbatim. 27. Defendants’ policies and actions directly infringe upon and chill reasonable persons from engaging in activity that is protected by the First Amendment, including peaceful assembly on a public sidewalk and standing on a public sidewalk to engage in conversation with others. 28. Defendants have deprived, and continue to deprive, Plaintiff of his rights under the First Amendment to the United States Constitution, which are incorporated through the Fourteenth Amendment. Defendants’ orders to individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks and threatening arrest for non-compliance is the cause-in-fact of the constitutional violations. 29. Upon information and belief, unless restrained by this Court, Defendants will continue their practice of ordering individuals who are violating no law to refrain from gathering
5

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 6 of 8 PageID #: 6
or standing for more than five seconds on public sidewalks and threatening arrest for noncompliance, as well as arresting individuals who have violated no law.
COUNT II Violation of Due Process Clause of Fourteenth Amendment to the United States Constitution 30. Plaintiff repeats, re-alleges, and incorporates by reference the allegations in the foregoing paragraphs of this Complaint as if set forth here verbatim. 31. Plaintiff is aware of no law that permits Defendants to order Plaintiff or any other individual violating no law to refrain from gathering or standing for more than five seconds on public sidewalks. 32. The practice described herein fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibited, and authorizes and encourages arbitrary and discriminatory enforcement. WHEREFORE, Plaintiff respectfully requests the following relief: A. Upon proper motion, issue a temporary restraining order and preliminary injunction prohibiting Defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them from ordering individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks, threatening them with arrest for non-compliance, or arresting them; B. Enter declaratory judgment, pursuant to 42 U.S.C. § 1983, that Defendants’ practice violates the Constitution; C. Enter a permanent injunction prohibiting Defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them from ordering
6

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 7 of 8 PageID #: 7
individuals who are violating no law to refrain from gathering or standing for more than five seconds on public sidewalks, threatening arrest for noncompliance, or arresting them. D. Award Plaintiff nominal damages against Defendants other than Replogle; E. Award Plaintiff costs, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 or any other applicable law; and F. Allow to Plaintiff such other and further relief as is just and proper under the circumstances.
Respectfully submitted, /s/ Anthony E. Rothert ANTHONY E. ROTHERT, #44827MO GRANT R. DOTY, #60788MO AMERICAN CIVIL LIBERTIES UNION
OF MISSOURI FOUNDATION 454 Whittier Street St. Louis, Missouri 63108 Telephone: (314) 652-3114 Facsimile: (314) 652-3112 GILLIAN R. WILCOX, #61278MO AMERICAN CIVIL LIBERTIES UNION
OF MISSOURI FOUNDATION 3601 Main Street Kansas City, Missouri 64111 Telephone: (816) 470-9938 Facsimile: (314) 652-3112 ATTORNEYS FOR PLAINTIFF
7

Case: 4:14-cv-01436-CDP Doc. #: 1 Filed: 08/18/14 Page: 8 of 8 PageID #: 8 Verification
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
/s/ Mustafa Abdullah
8

 
 Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 1 of 15 PageID #: 660

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MUSTAFA ABDULLAH, NATASHA GRAY, ROBERT HUDGINS, and DERAY MCKESSON,
Plaintiffs, v.
COUNTY OF SAINT LOUIS, MISSOURI, RONALD K. REPLOGLE, in his official capacity as Superintendent of the Missouri State Highway Patrol, and CITY OF FERGUSON, MISSOURI,
Defendants.

) ) ) ) ) NO. 4:14-cv-1436 CDP ) ) ) ) ) ) ) ) ) )

FIRST AMENDED COMPLAINT

INTRODUCTION 1. This is a civil rights action filed by Mustafa Abdullah, Natasha Gray,

Robert Hudgins, and DeRay Mckesson (collectively, the “Plaintiffs”), each of whom, like

many others, have been ordered by agents of the County of Saint Louis, Missouri (the

“County”); Ronald K. Replogle, in his official capacity as Superintendent of the Missouri

State Highway Patrol (the “Highway Patrol”); or the City of Ferguson, Missouri (the

“City”) (collectively, the “Defendants”), to refrain from standing still on public sidewalks

in Ferguson, Missouri, either at all or for longer than five seconds. They were threatened

with arrest for failing to comply with those orders, even though they were violating no

law. Plaintiffs challenge the practice of ordering individuals who are not violating any

law, not engaging in violent or disruptive conduct, and not obstructing or encumbering

1

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 2 of 15 PageID #: 661
the passage of persons or vehicles to refrain from standing still on public sidewalks and threatening arrest for failure to comply with such orders.
2. There are a large number of demonstrators who have taken to the public streets and sidewalks of Ferguson, Missouri, to express their opinions about how local law enforcement officials conduct themselves.
3. As of the morning of August 18, 2014, Defendants the County and the Highway Patrol began enforcing a policy of ordering individuals who were violating no law to refrain from standing still on public sidewalks either at all or for longer than five seconds and of threatening arrest for non-compliance. Plaintiffs Abdullah, Mckesson, and Gray were threatened with arrest if they did not comply with orders to refrain from standing still, even though they were not violating any law or engaging in violent or disruptive conduct.
4. Beginning in late September 2014, the City began prohibiting protests in which participants are not constantly in motion on all sidewalks near the Ferguson Police Department Headquarters, located at 222 S. Florissant Road, Ferguson, Missouri 63135 (the “City PD Headquarters”). Police officers employed by the City claimed that they were enforcing Section 29-89 of City of Ferguson Code of Ordinances and that, once protestors were warned that constant movement was required, any protestor who ceased moving was subject to immediate arrest without further warning.
5. Section 29-89 provides that “[a] person commits the offense of loitering if he obstructs or encumbers the passage of persons or vehicles upon, through or into any street, street corner, depot, building entrance or other public place and then refuses to move on when requested to do so by any police officer of the city.”
2

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 3 of 15 PageID #: 662
6. Plaintiffs Mckesson, Gray, and Hudgins were threatened with arrest if they did not comply with orders to refrain from standing still on public sidewalks around the City PD Headquarters, even though they were not obstructing or encumbering the passage of persons or vehicles (and thus were not violating Section 29-89), were violating no other law, and were not engaged in violent or disruptive conduct.
7. Plaintiffs ask this Court to enjoin Defendants’ practice of requiring individuals who are violating no law to refrain from standing still on public sidewalks either at all or for longer than five seconds and threatening arrest for non-compliance. Plaintiffs also ask this Court to enjoin the City’s practice of purporting to enforce Ferguson’s anti-loitering ordinance against individuals who are not obstructing or encumbering the passage of persons or vehicles upon, through or into any street, street corner, depot, building entrance or other public place. Further, Plaintiffs request this Court to declare the practices described and Section 29-89 of the City of Ferguson Code of Ordinances unconstitutional on their face and as-applied, and to award nominal damages.
JURISDICTION AND VENUE 8. This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiffs’ civil action arising under the Constitution of the United States. 9. In addition, this Court has original jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) to redress the deprivation, under color of state law, of any right, privilege, or immunity secured by the Constitution of the United States. 10. Venue lies in the United States District Court for the Eastern District of Missouri because a substantial part of the events giving rise to Plaintiffs’ claims occurred in the County of Saint Louis, Missouri. 28 U.S.C. § 1391(b)(2).
3

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 4 of 15 PageID #: 663
11. Divisional venue is in the Eastern Division because the events leading to the claims for relief arose in the County of Saint Louis, Missouri. E.D. MO. L.R. 2.07(A)(3), (B)(1).
PARTIES 12. Plaintiff Mustafa Abdullah is a resident of St. Louis, Missouri. 13. Plaintiff Natasha Gray is a resident of Florissant, Missouri. 14. Plaintiff Robert Hudgins is a resident of Ferguson, Missouri. 15. Plaintiff DeRay Mckesson is a resident of Minneapolis, Minnesota. 16. Defendant the County of St. Louis, Missouri, is a political subdivision of the State of Missouri. The County is participating in and directing law enforcement officers’ practice of ordering individuals who are violating no law to refrain from standing still on public sidewalks and threatening arrest for non-compliance. 17. Defendant Ronald K. Replogle is sued in his official capacity as Superintendent of the Missouri State Highway Patrol. The Highway Patrol is an agency of the State of Missouri and is participating in and directing law enforcement officers’ practice of ordering individuals who are violating no law to refrain from standing still on public sidewalks and threatening arrest for non-compliance. 18. Defendant the City of Ferguson, Missouri, is a political subdivision of the State of Missouri. The City is participating in and directing law enforcement officers’ practice of ordering individuals who are violating no law to refrain from standing still on public sidewalks and threatening arrest for non-compliance. 19. Defendants and their officers, employees, or agents acted under color of state law at all times relevant to this Complaint.
4

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 5 of 15 PageID #: 664
FACTS A. Background
20. On August 9, 2014, a police officer of the City’s police department shot and killed Michael Brown, who was unarmed.
21. Many members of the community have responded with anger at law enforcement officers.
22. As a result, there have been frequent demonstrations on the public streets and sidewalks of Ferguson, Missouri.
23. At these demonstrations, protestors are voicing their opinions about such issues of public concern as the relationship between police and the community, the frequency with which police officers shoot unarmed black men, and the militarization of local police forces.
24. Defendants’ response to the demonstrations, including the use of force, ordering peaceful protestors to disband and evacuate the streets and sidewalks, placing restrictions on the ability of the media to witness and report on unfolding events, and ordering protestors and observers to stop documenting and videotaping the demonstrations, has been controversial.
25. There is widespread public interest in Defendants’ tactics, which raise questions about whether a military response to protests is consistent with the values of the United States, as well as the lack of transparency in the investigation of the shooting of Michael Brown and Defendants’ response to the wave of protests that followed.
5

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 6 of 15 PageID #: 665
B. Enforcement of Unconstitutional Policy Against Plaintiff Mustafa Abdullah 26. Plaintiff Mustafa Abdullah is a Program Associate for the American Civil
Liberties Union of Missouri (“ACLU-MO”). His responsibilities include community organizing and legislative advocacy in support of ACLU-MO’s mission.
27. Abdullah has been attending the protests and demonstrations in Ferguson, Missouri, since August 14, 2014. His purpose in attending the protests is to promote and protect the rights of peaceful protesters, including by being a legal observer, organizing other legal observers, distributing information to protesters about their legal rights, and communicating with protesters, members of the media, and law enforcement officers in Ferguson.
28. Beginning around 11:00 a.m. on August 18, 2014, ACLU-MO received reports that law enforcement officers were ordering individuals who were violating no law to refrain from standing still on public sidewalks in Ferguson, Missouri, either at all or for longer than five seconds, and threatening arrest for failure to comply with these orders. The reports indicated that the policy was being enforced along West Florissant Avenue between the McDonald’s located at 9131 West Florissant Avenue and the QuikTrip gas station located at 9420 West Florissant (the “original protest area”).
29. Abdullah went to the original protest area in Ferguson to investigate the reports.
30. On five separate occasions within a period of approximately one hour at different locations in the original protest area, Abdullah was ordered by law enforcement officers to refrain from standing still either at all or for longer than five seconds on public sidewalks and threatened with arrest for non-compliance.
6

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 7 of 15 PageID #: 666
31. Abdullah was at no time violating any law or engaging in any violent or disruptive conduct.
32. Abdullah did not observe any other individuals in his vicinity who were violating any law or engaging in violent or disruptive conduct during any of the times he was ordered to refrain from standing still.
33. Numerous other individuals in the area, including protesters and members of the media, were similarly ordered by law enforcement officials to refrain from standing still on public sidewalks and threatened with arrest for non-compliance. They, too, were not violating any law and were not engaging in violent or disruptive conduct.
34. When inquiries were made to law enforcement officers regarding which law prohibits standing still on public sidewalks, the officers indicated that they did not know and that it did not matter. The officers further indicated that they were following the orders of their supervisors, whom they refused to name. C. Enforcement of Unconstitutional Policy Against Plaintiff DeRay Mckesson
35. Plaintiff DeRay Mckesson first came to the original protest area on August 16, 2014, to witness the events reported in the media about the Ferguson protests. After arriving, Mckesson decided to take part in the protests. Mckesson protested in the original protest area between August 16 and August 25, 2014, and between August 30 and September 1, 2014.
36. While Mckesson was protesting in the original protest area between August 18 and 20, law enforcement officers ordered him and other individuals to refrain from standing still on public sidewalks on multiple occasions. Law enforcement officers
7

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 8 of 15 PageID #: 667
threatened to arrest Mckesson, other protesters, and members of the media if they failed to comply with orders to refrain from standing still.
37. Mckesson returned to Ferguson from September 26 to September 29, 2014. He attended protests and demonstrations on September 26 and 27 that took place around the City PD Headquarters. On the morning of September 27, a law enforcement officer ordered Mckesson to refrain from standing still on the public sidewalks around the City PD Headquarters.
38. Mckesson was not obstructing or encumbering the passage of any person or vehicle when he was ordered to refrain from standing still while protesting on a public sidewalk.
39. Mckesson was at no time violating any law or engaging in any violent or disruptive conduct.
40. Mckesson did not observe any other individuals in his vicinity who were violating any law or engaging in violent or disruptive conduct during any of the times he was ordered to refrain from standing still. D. Enforcement of Unconstitutional Policy Against Plaintiff Natasha Gray
41. Natasha Gray has been attending protests in Ferguson almost every day since August 13, 2014, to express her disagreement with the shooting of Michael Brown and the subsequent response by law enforcement officials. She has attended protests both in the original protest area and around the City PD Headquarters.
42. Sometime in August 2014, Gray was sitting on the curb of a public sidewalk in the original protest area. Two police officers employed by the County approached her and ordered her to keep walking. Gray refused to comply with the
8

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 9 of 15 PageID #: 668
officers’ orders. She explained to the officers that she suffered from epilepsy, had suffered two epileptic seizures earlier that morning, and was afraid of having another seizure. The officers told Gray that she did not have a right to remain sitting down on the sidewalk and threatened to arrest her if she refused to keep moving. Gray continued to refuse and the officers eventually walked away without arresting her.
43. In late September 2014, Gray was standing still to protest with a group of two or three other people in front of the City PD Headquarters. Three or four police officers employed by the City told Gray and the other protesters that they could not stand still on the sidewalk.
44. Neither Gray nor the other protesters had obstructed or encumbered the passage of any person or vehicle when they were ordered to refrain from standing still while protesting on a public sidewalk.
45. Gray was at no time violating any law or engaging in any violent or disruptive conduct.
46. Gray did not observe any other individuals in her vicinity who were violating any law or engaging in violent or disruptive conduct when she was ordered to keep walking. E. Enforcement of Unconstitutional Policy Against Plaintiff Robert Hudgins
47. Robert Hudgins has been protesting outside of the City PD Headquarters since August 14, 2014. The purpose of his protest is to express dissatisfaction with police actions and race relations in Ferguson.
48. On September 27, 2014, Hudgins was standing with two or three other individuals on a public sidewalk across the street from the City PD Headquarters. While
9

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 10 of 15 PageID #: 669
standing there, Hudgins was approach by a City police officer who told Hudgins and others nearby that they were not allowed to stand still and that they had to keep moving. Hudgins asked for the basis of this new rule and was told by the officer that it related to an ordinance but that the officer could not remember the name of the ordinance.
49. Hudgins was not obstructing or encumbering the passage of any person or vehicle when he was ordered to refrain from standing still while protesting on a public sidewalk.
50. Hudgins was at no time violating any law or engaging in any violent or disruptive conduct.
51. Hudgins did not observe any other individuals in his vicinity who were violating any law or engaging in violent or disruptive conduct when he was ordered to refrain from standing still.
COUNT I Violation of First and Fourteenth Amendments
to the United States Constitution 52. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this First Amended Complaint as if set forth here verbatim. 53. Defendants’ policies and actions directly infringe upon and chill reasonable persons from engaging in activity that is protected by the First Amendment, including peaceful assembly on a public sidewalk and standing still on a public sidewalk to protest and to engage in other constitutionally protected speech. 54. Defendants have deprived, and continue to deprive, Plaintiffs of their rights under the First Amendment to the United States Constitution, which are incorporated through the Fourteenth Amendment. Defendants’ orders to individuals who
10

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 11 of 15 PageID #: 670
are violating no law to refrain from standing still on public sidewalks either at all or for longer than five seconds and threatening arrest for non-compliance is the cause-in-fact of these constitutional violations.
55. Upon information and belief, unless restrained by this Court, Defendants will continue their practice of ordering individuals who are violating no law to refrain from standing still on public sidewalks either at all or for longer than five seconds and threatening arrest for non-compliance.
COUNT II Violation of Due Process Clause of the Fourteenth Amendment
to the United States Constitution 56. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this First Amended Complaint as if set forth here verbatim. 57. Plaintiffs are aware of no law that permits Defendants to order Plaintiffs or any other individuals to refrain from standing still on public sidewalks when they are not violating any law, not engaging in any violent or disruptive conduct, and not obstructing or encumbering the passage of persons or vehicles upon, through or into any street, street corner, depot, building entrance or other public place. 58. The practice described herein fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited, and authorizes and encourages arbitrary and discriminatory enforcement.
11

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 12 of 15 PageID #: 671
WHEREFORE, Plaintiffs respectfully request the following relief: A. Upon proper motion, issue a temporary restraining order and preliminary injunction (1) prohibiting Defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them from ordering individuals who are violating no law to refrain from standing still on public sidewalks, threatening them with arrest for non-compliance, or arresting them; and (2) prohibiting Defendant the City, its officers, employees, or agents, and those acting on its behalf or in concert with it from purporting to enforce Ferguson’s anti-loitering ordinance against individuals who are not obstructing or encumbering the passage of persons or vehicles upon, through or into any street, street corner, depot, building entrance or other public place; B. Enter declaratory judgment, pursuant to 42 U.S.C. § 1983, that Defendants’ practices and policies described in the First Amended Complaint violate the Constitution; C. Enter declaratory judgment, pursuant to 42 U.S.C. § 1983, that Section 2989 of the City of Ferguson Code of Ordinances violates the Constitution as applied and on its face; D. Enter a permanent injunction (1) prohibiting Defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them from ordering individuals who are violating no law to refrain from standing still on public sidewalks, threatening them with arrest for noncompliance, or arresting them; and (2) prohibiting Defendant the City, its
12

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 13 of 15 PageID #: 672
officers, employees, or agents, and those acting on its behalf or in concert
with it from purporting to enforce Ferguson’s anti-loitering ordinance
against individuals who are not obstructing or encumbering the passage of
persons or vehicles upon, through or into any street, street corner, depot,
building entrance or other public place;
E. Award Plaintiffs nominal damages against Defendants other than
Defendant Ronald K. Replogle;
F. Award Plaintiffs costs, including reasonable attorneys’ fees, pursuant to
42 U.S.C. § 1988 or any other applicable law; and
G. Allow to Plaintiffs such other and further relief as is just and proper under
the circumstances.
Respectfully submitted,
/s/ Anthony E. Rothert Anthony E. Rothert, #44827MO Grant R. Doty, #60788MO Andrew J. McNulty, #67138MO AMERICAN CIVIL LIBERTIES UNION
OF MISSOURI FOUNDATION 454 Whittier Street St. Louis, Missouri 63108 Telephone: (314) 652-3114 Facsimile: (314) 652-3112 trothert@aclu-mo.org gdoty@aclu-mo.org amcnulty@aclu-mo.org
Gillian R. Wilcox, #61278MO AMERICAN CIVIL LIBERTIES UNION
OF MISSOURI FOUNDATION 3601 Main Street Kansas City, Missouri 64111 Telephone: (816) 470-9938 Facsimile: (314) 652-3112 gwilcox@aclu-mo.org
13

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 14 of 15 PageID #: 673
GRANT A. DAVIS-DENNY THOMAS P. CLANCY VICTORIA A. DEGTYAREVA THANE M. REHN KENNETH M. TRUJILLO-JAMISON MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Suite 3500 Los Angeles, CA 90071 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Grant.Davis-Denny@mto.com Thomas.Clancy@mto.com Victoria.Degtyareva@mto.com Thane.Rehn@mto.com Kenneth.Trujillo-Jamison@mto.com ATTORNEYS FOR PLAINTIFFS
14

Case: 4:14-cv-01436-CDP Doc. #: 56 Filed: 11/04/14 Page: 15 of 15 PageID #: 674 Certificate of Service
I hereby certify that on October 29, 2014, a copy of the foregoing was served on counsel of record by operation of the ECF/CM system.
/s/ Anthony E. Rothert
- 15 -

 
 Case: 4:14-cv-01436-CDP Doc. #: 67 Filed: 12/22/14 Page: 1 of 2 PageID #: 1025

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MUSTAFA ABDULLAH, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

COUNTY OF SAINT LOUIS, MISSOURI, et al., ) )

Defendants.

)

~~~~~~~~~~~~~~~~~~)

CASE NO. 4:14-cv-1436 CDP

ORDER This matter comes before the Court on the joint motion of Plaintiffs Mustafa Abdullah, Natasha Gray, Deray Mckesson, and Robert Hudgins ("Plaintiffs"), Defendant Ronald K. Replogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, and Defendant the County of St. Louis, Missouri ("Defendants") Plaintiffs and Defendants having stipulated and consented to the relief set forth below, IT IS HEREBY ORDERED that Defendants, and their officers, employees, or agents and those acting on their behalf or in concert with them, are enjoined from enforcing or threatening to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or order to move individuals who are violating no statute, ordinance or regulation and who are peaceably standing, marching, or assembling on public sidewalks in Ferguson, Missouri. This order does not prohibit Defendants from arresting, threatening to arrest, or ordering to move individuals whom Defendants have probable cause to believe: ( l) are part of an unlawful assembly or a riot; (2) are violating, or have agreed with six or more other persons to violate, any criminal laws with force or violence; (3) are violating a

Case: 4:14-cv-01436-CDP Doc. #: 67 Filed: 12/22/14 Page: 2 of 2 PageID #: 1026
statute, ordinance or regulation; or (4) have knowingly failed or refused to obey a lawful command of a law enforcement officer to depart from the scene of an unlawful assembly or riot.
IT IS FURTHER ORDERED that this order shall not prevent Defendants from enforcing the Missouri refusal-to-disperse statute, Mo. Rev. Stat. § 574.060.
IT IS FINALLY ORDERED that this Court retains jurisdiction to enforce this order and to adjudicate any claims for recovery of attorneys' fees and costs.
CA~RRf-&
UNITED STATES DISTRICT JUDGE Dated this22"afy of December, 2014.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MUSTAFA ABDULLAH, et al.,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF ST. LOUIS, MISSOURI, )

et al.,

)

)

)

Defendants.

)

Case No. 4:14 CV 1436 CDP

MEMORANDUM AND ORDER

On December 22, 2014, upon joint motion of the plaintiffs and of defendants

Ronald K. Replogle and County of St. Louis, Missouri, I entered an order

permanently enjoining defendants from enforcing a “keep-moving” rule against

any person peaceably assembling on the public sidewalks in Ferguson, Missouri.

Pursuant to the stipulated order, the parties agreed that this court would retain

jurisdiction to adjudicate any claims for recovery of attorneys’ fees and costs.

Plaintiffs have now filed a bill of costs and a motion for attorneys’ fees in

accordance with Rule 54, Fed. R. Civ. P., and 42 U.S.C. § 1988. The plaintiffs

seek taxable costs of $900 and attorneys’ fees and expenses of $380,786.59.

Defendants do not object to plaintiffs’ costs but challenge the reasonableness of

counsels’ hourly rate and the total number of hours worked. In particular,

defendants argue that this case could and should have been staffed by local attorneys charging local rates, but instead it was staffed with five attorneys from Los Angeles, California, where market rates are substantially higher than those in St. Louis. Defendants argue that plaintiffs inappropriately staffed the case with a total of six attorneys when it could successfully have been handled by fewer attorneys. After examining the record and evidence submitted by plaintiffs, I find that plaintiffs’ non-local counsel’s rates and hours billed are excessive and I will reduce plaintiffs’ award accordingly. Therefore, I conclude plaintiffs are entitled to costs in the amount of $900 and attorney’s fees and expenses in the amount of $152,867.34.
Bill of Costs Under Rule 54(d), “costs—other than attorney’s fees—should be allowed to the prevailing party.” The specific costs that are recoverable are listed in 29 U.S.C. § 1920. Plaintiffs have submitted a bill of costs in the amount of $900, claiming costs only for fees of the clerk—specifically, their filing fee and pro hac vice fees for five attorneys. Fees of the clerk are among the recoverable fees listed in § 1920, and defendants have not challenged these costs, therefore, plaintiffs are entitled to recover the full amount listed in their bill of costs.
- 2 -

Attorneys’ Fees and Expenses Plaintiffs have asked for attorneys’ fees in the amount of $362,964 and expenses of $18,822.59. Plaintiffs’ six attorneys included one lawyer from the American Civil Liberties Union of Missouri Foundation, and one junior partner and four associates from the firm Munger, Tolles, & Olson LLP, a firm with offices in Los Angeles and San Francisco. Also included in the fees calculation are hours worked by an Automated Litigation Support Specialist and a paralegal, both from the Munger firm. As the prevailing parties in a civil rights action, plaintiffs are entitled to “reasonable” attorneys’ fees under 42 U.S.C. § 1988(b). In order to determine the amount of a reasonable fee, I should employ the “lodestar method” where the starting point “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Fires v. Heber Springs Sch. Dist., 565 F. App'x 573, 575 (8th Cir. 2014). Once I have determined that amount, I should consider a number of other factors to determine whether the fee should be adjusted upward or downward.1 Hensley, 461 U.S. at 434; see also City of Riverside v. Rivera, 477 U.S. 561, 568 n.3 (1986).
1 These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the attorney's preclusion of other employment due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases). Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,
- 3 -

The chart below is a breakdown of plaintiffs’ lodestar calculation for their

attorneys’ fees:

Hours

Rate

Total

G. Davis-Denny (Munger junior partner) N. Rehn (associate) T. Clancy (associate) V. Degtyareva (associate) K. Trujillo-Jameson (associate) S. Bales (Automated Litigation Support Specialist) J. Driver-Moore (paralegal) A. Rothert (ACLU attorney) TOTAL:

130.6 65.2 209.4 121.4 65.8 54.8
43 24.1 714.3

$695 $595 $490 $490 $490 $355
$260 $350

$90,767 $38,794 $102,606 $59,486 $32,242 $19,454
$11,180 $8,435 $362,964

Plaintiffs’ expenses consist of charges for transcription of the preliminary

injunction hearing and the temporary restraining order hearing, a private process

server, copies, attorney and staff travel and lodging, attorney and staff internet use,

fact witness travel and lodging and expert witness fees and expenses.

717–19 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).
- 4 -

ACLU Fees Defendant Replogle’s primary objection to ACLU attorney Rothert’s fee is that his hourly rate is high. Replogle points out that in Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014), the Eighth Circuit approved an attorney award for Rothert that was calculated using an hourly rate of $300. The complaint in Snider was filed with the district court in 2010, and the bulk of the work for which plaintiff sought attorneys’ fees was done from 2010 to 2012. The instant case was filed and litigated in late 2014. It is predictable and not at all unreasonable that Rothert’s rates would increase over the course of three years. Rothert’s current rate is within the range of prevailing market rates for an experienced civil rights attorney, and he has recently been awarded fees based on an even higher hourly rate. See Survivors Network of Those Abused by Priests, Inc. v. Joyce, No. 4:12cv1501-ERW, 2015 WL 4042143, at *1 (E.D. Mo. July 1, 2015); Kennard v. Kleindienst, No. 2:14cv4017-BCW (W.D. Mo.); see also Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (in determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates). Defendant County’s only objection to Rothert’s fees is to the one hour billed by Rothert for the TRO hearing. However, the County fails to explain the basis for its objection or provide legal support for not awarding fees for that hour. The
- 5 -

number of hours expended by Rothert was highly reasonable, particularly considering that he performed the initial evaluation of the case, and filed a complaint, a temporary restraining order, and a supporting memorandum under a pressing time frame. Accordingly, based on the record before me, I conclude Rothert’s fees and hourly rate are reasonable, and his fees will be awarded to the full extent requested.
Munger Firm’s Fees Defendants object to the Munger firm’s fees on two grounds. First, they assert the attorneys’ hourly rates are unreasonable because St. Louis hourly rates should apply. Next, they argue that staffing the case with five attorneys was unnecessary and resulted in the billing of excessive and redundant hours, particularly with regard to the presence of four attorneys and one litigation support specialist at the preliminary injunction hearing. As for Munger’s staffing of the case, although I acknowledge that large firms typically staff cases with multiple attorneys, I conclude that staffing here was excessive for the demands of the case. This was not a factually complicated matter—there were no depositions, and little to no document discovery. In terms of factual complexity, this case was similar to many routine civil cases—it required examination of one expert and a handful of fact witnesses, testifying about what they observed on the streets of Ferguson; and it required cross examination of four
- 6 -

defense witnesses on policy matters. Because of the time frame and the need for quick action given the ongoing demonstrations, using multiple attorneys and expending significant hours when the case first came in to the firm is somewhat understandable. Munger was required initially to comprehend the case and draft preliminary injunction documents on a very constricted timeline. However, the attorneys had four weeks between the time their preliminary injunction motion was filed and the motion hearing, and two weeks between the time defendants’ opposition briefs were filed and the hearing. This is a typical timeline for a preliminary injunction motion, and given the relative demands of the case already discussed, it was not abnormally burdensome. However, in the time period between filing the preliminary injunction motion and the date of the hearing, Munger spent at least 340 hours working on the case, which is 42 eight-hour days. It spent this amount of time despite the fact that five of the seven witnesses who testified for plaintiffs at the hearing submitted affidavits in support of the motion for preliminary injunction, indicating their knowledge and testimony were worked up even before the motion was filed.
Although plaintiffs argue that in preparing for the hearing, redundancies were avoided by assigning each attorney his or her own witnesses to handle, I believe that the additional attorneys added inefficiency to the process. Even if the five attorneys’ assignments never overlapped, Munger attorneys were still required
- 7 -

to synthesize the work of five people (instead of two) for a cohesive presentation at the hearing.
Additionally, as Davis-Denny acknowledged in his affidavit, the attorneys reviewed one another’s work. Although I agree that this is typically a helpful practice, it seems clear that here, some of the redundancy in reviewing could have been avoided. For instance, in four separate time entries, attorney Degtyareva drafted, Davis-Denny reviewed, and Degtyareva revised and later finalized a twopage motion to sequester witnesses.2
Plaintiffs argue that the hours spent on the case were mandated in part by defendants’ shifting story as to the keep-moving rule. However, so long as plaintiffs’ own witnesses’ accounts did not change, it is difficult to understand how the defendants’ fluctuating narrative created significantly more work for plaintiffs’ attorneys.
Finally, I find that charging fees for four attorneys and one litigation specialist to travel to3 and attend an eight-hour hearing that could have been handled by two attorneys is excessive.
2 In reality, all that would have been required to sequester witnesses was for one attorney to stand up in court at the beginning of the hearing and invoke Federal Rule of Evidence 615. 3 Degtyareva appears to have not billed for her travel time, and Davis-Denny wrote off some of his travel time.
- 8 -

In light of all of the above, I conclude that despite the success of their case, the number of hours billed by the Munger firm was excessive. Ultimately, I believe two attorneys could have handled the matter; therefore, I will award the hours billed by Davis-Denny and Clancy (the associate who billed the highest number of hours), but the hours of all other attorneys are excluded. I will reduce the hours of the litigation specialist, Bales, to sixteen. This accounts for reasonable time spent on preparing for and attending the hearing. I will also reduce the hours of the paralegal, Driver-Moore, to eight, which accounts for reasonable time spent on preparing exhibits.
As to Munger’s hourly rates, I conclude that they should be reduced to more closely reflect rates typical of the St. Louis market. Generally, a reasonable hourly rate means “the ordinary rate for similar work in the community where the case has been litigated.” Snider, 752 F.3d at 1159 (citing Little Rock Sch. Dist. v. Arkansas, 674 F.3d 990, 995 (8th Cir. 2012)). Where a plaintiff does not use local counsel, the district court may award fees based on a non-local hourly rate if the plaintiff shows that despite diligent, good faith efforts, he was unable to find local counsel willing and able to take the case. 752 F.3d at 1159.
Plaintiffs argue that Rothert made diligent, good faith efforts to find local counsel to take this case, but his efforts failed. Rothert’s affidavit states that when he realized the ACLU, with its already demanding case load, could not handle this
- 9 -

case, he spoke with various mid- to large- sized firms about taking on this and other Ferguson-related matters. None of the firms were willing to do so because of the controversial nature of the cases and conflicts of interest in being adverse to the State of Missouri.4 His affidavit makes it clear that he limited his search to mid- to large- sized firms because he believed they would be the only ones with sufficient resources to handle the exigencies of this case. His affidavit does not indicate how many firms he spoke with.
Assuming Rothert’s search for a mid- to large-sized local firm was diligent, I conclude that his efforts still fell short because I am unconvinced that a smaller local firm, or a combination of smaller local firms, would not have been willing and able to take this case. The events in Ferguson were highly publicized, and at the time this case was filed, there was evident public sympathy, locally and nationally, for the peaceful protestors, whose rights the plaintiffs in this case sought to protect. See, e.g., Ray Downs, Police in Ferguson Fire Tear Gas on Protestors Standing in Their Own Backyard, Riverfront Times, August 12, 2014, http://www.riverfronttimes.com/newsblog/2014/08/12/police-in-ferguson-fire-teargas-on-protesters-standing-in-their-own-backyard; Daniel Hill, Peaceful Crowd of Protesters Dispersed by Heavily Militarized Police Force in Ferguson, Riverfront
4 Rothert’s affidavit also mentions that in 2014, he attempted but was unable to find any large or mid-sized Missouri firms willing to take cases challenging Missouri’s same sex marriage laws, also because of conflicts of interest in being adverse to the State. This is irrelevant.
- 10 -

Times, August 13, 2014, http://www.riverfronttimes.com/newsblog/2014/08/13/ peaceful-crowd-of-protesters-dispersed-by-heavily-militarized-police-force-inferguson; Unbelievable Ferguson Police: Our View, USA Today, August 19, 2014, http://www.usatoday.com/story/opinion-/2014/08/14/michael-brown-shootingferguson-missouri-police-editorials-debates/14086807/; Ferguson Police Fumbled Protests, Washington Post, August 14, 2014, https://www.washingtonpost.com /opinions/ferguson-police-fumbled-protests/2014/08/14/637aea3a-23f3-11e4-86ca6f03cbd15c1a_story.html. I believe that there were competent, capable lawyers in St. Louis that would have been willing, if not eager, to take on a case under these circumstances.
Furthermore, the demands of this case were not so great that a small local firm or a combination of two or more small local firms could not have handled it. Although the timelines were tight, the facts were neither complicated nor dense, and a smaller firm with even minimum §1983 experience would have had little difficulty getting a handle on the legal issues. I also find it impossible to believe that smaller firms do not have the resources to prepare for and handle what was essentially a one-day trial with a month-long lead time. Small local firms handle such trials regularly.
Clearly, the Munger lawyers moved quickly and worked hard on this matter under difficult, stressful circumstances. They did an excellent job litigating the
- 11 -

case, and I am grateful for their help. But I also note that their compensation here goes beyond the monetary: multiple of Munger’s young lawyers were able to work on a high profile, constitutional law case. They gained rare, trial-like experience on a condensed timeline in federal court. I suspect these are among the reasons Munger reached out to the ACLU in the first place when it offered to take on a Ferguson-related case.
Given the obvious exigencies of this case, I recognize that an exhaustive search of St. Louis law firms was impossible, but I believe that if the ACLU had not limited the search to mid- to large-sized firms, it would have been able to find willing and able counsel locally. Therefore, I will reduce MTO’s rates to more closely resemble ordinary rates for similar work in the St. Louis market. DavisDenny’s rate will be reduced to $400 per hour, and Clancy’s rate will be reduced to $350 per hour. Bales’ and Driver-Moore’s rates will be reduced to $150 per hour, which is on the high end of the reasonable range for paralegals in St. Louis.
As defendants have not objected to the expenses for Rothert and Munger they will be awarded in full except that travel, lodging, and internet expenses for Bales, Rehn, and Degtyareva will be excluded in accordance with my conclusions above.
To summarize, I will allow Rothert the full amount of fees ($8,435) and expenses ($1,422.70) requested. I will award the Munger firm expenses in the
- 12 -

amount of $13,879.64. The Munger fees will be awarded as follows: DavisDenny in the amount of $52,240, Clancy in the amount of $73,290, Bales in the amount of $2,400, and Driver-Moore in the amount of $1,200. The total fee and expense award is thus $152,867.34. Additionally, taxable costs in the amount of $900 as requested will be allowed.
Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion for a bill of costs [#68] is GRANTED and the Clerk of the Court shall tax costs in the amount of $900. IT IS FURTHER ORDERED that plaintiffs’ motion for attorneys’ fees [#69] is GRANTED IN PART and defendants are jointly and severally liable for plaintiffs’ attorneys’ fees and expenses in the amount of $152,867.34. IT IS FURTHER ORDERED that plaintiffs’ motion for leave to supplement [#78] is DENIED as moot.
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE Dated this 24th day of September, 2015.
- 13 -

 
 Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 1 of 11
CLOSED,PTRCK2,R16
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:14−cv−01436−CDP

Abdullah v. Saint Louis, County of, Missouri et al Assigned to: District Judge Catherine D. Perry Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/18/2014 Date Terminated: 12/22/2014 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Mustafa Abdullah

represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101−1448 314−669−3420 Fax: 314−652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J. McNulty ACLU OF MISSOURI 454 Whittier St St. Louis, MO 63108 847−385−8062 Email: andrew.joseph.mcnulty@gmail.com ATTORNEY TO BE NOTICED

Gillian R. Wilcox AMERICAN CIVIL LIBERTIES UNION OF MISSOURI 406 W. 34th St. Suite 420 Kansas City, MO 64111 816−470−9938 Email: gwilcox@aclu−mo.org ATTORNEY TO BE NOTICED

Grant A. Davis−Denny MUNGER AND TOLLES, LLP 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071 (213) 683−9100 Fax: 213−687−3702 Email: Grant.Davis−Denny@mto.com ATTORNEY TO BE NOTICED

Grant R. Doty U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1222 Spruce St. Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: 314−539−7895 Email: grant.doty@eeoc.gov TERMINATED: 04/02/2015 ATTORNEY TO BE NOTICED

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 2 of 11

Plaintiff Natasha Gray

Kenneth M. Trujillo−Jamison MUNGER AND TOLLES, LLP 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071 213−683−9206 Fax: 213−683−5106 Email: Kenneth.Trujillo−Jamison@mto.com ATTORNEY TO BE NOTICED
Nathan M. Rehn MUNGER AND TOLLES, LLP 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071 (213) 683−9100 Fax: 213−687−3702 Email: Thane.Rehn@mto.com
Thomas P. Clancy MUNGER AND TOLLES, LLP 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071 (213) 683−9100 Fax: 213−687−3702 Email: Thomas.Clancy@mto.com ATTORNEY TO BE NOTICED
Victoria A. Degtyareva MUNGER AND TOLLES, LLP 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071 (213) 683−9100 Fax: 213−687−3702 Email: Victoria.Degtyareva@mto.com
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J. McNulty (See above for address) ATTORNEY TO BE NOTICED
Gillian R. Wilcox (See above for address) ATTORNEY TO BE NOTICED
Grant A. Davis−Denny (See above for address) ATTORNEY TO BE NOTICED
Grant R. Doty (See above for address) TERMINATED: 04/02/2015 ATTORNEY TO BE NOTICED
Kenneth M. Trujillo−Jamison (See above for address)

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 3 of 11

ATTORNEY TO BE NOTICED

Nathan M. Rehn (See above for address)

Thomas P. Clancy (See above for address) ATTORNEY TO BE NOTICED

Victoria A. Degtyareva (See above for address)

Plaintiff Robert Hudgins

represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J. McNulty (See above for address) ATTORNEY TO BE NOTICED

Gillian R. Wilcox (See above for address) ATTORNEY TO BE NOTICED

Grant A. Davis−Denny (See above for address) ATTORNEY TO BE NOTICED

Grant R. Doty (See above for address) TERMINATED: 04/02/2015 ATTORNEY TO BE NOTICED

Kenneth M. Trujillo−Jamison (See above for address) ATTORNEY TO BE NOTICED

Nathan M. Rehn (See above for address)

Thomas P. Clancy (See above for address) ATTORNEY TO BE NOTICED

Victoria A. Degtyareva (See above for address)

Plaintiff Deray McKesson

represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J. McNulty (See above for address) ATTORNEY TO BE NOTICED

Gillian R. Wilcox (See above for address) ATTORNEY TO BE NOTICED

Grant A. Davis−Denny

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 4 of 11
(See above for address) ATTORNEY TO BE NOTICED
Grant R. Doty (See above for address) TERMINATED: 04/02/2015 ATTORNEY TO BE NOTICED
Kenneth M. Trujillo−Jamison (See above for address) ATTORNEY TO BE NOTICED
Nathan M. Rehn (See above for address)
Thomas P. Clancy (See above for address) ATTORNEY TO BE NOTICED
Victoria A. Degtyareva (See above for address)

V. Defendant County of Saint Louis, Missouri
Defendant Ronald Replogle in his official capacity as Superintendent of the Missouri Highway Patrol
Defendant

represented by Michael A. Shuman ST. LOUIS COUNTY COUNSELOR'S OFFICE 41 S. Central Avenue Clayton, MO 63105 314−615−7042 Fax: 314−615−3732 Email: michael_shuman@stlouisco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R. Layton ATTORNEY GENERAL OF MISSOURI Assistant Attorney General 221 W. High Street P.O. Box 899 Jefferson City, MO 65102−0899 573−751−3321 Fax: 573−751−0774 Email: James.Layton@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Isaacson ATTORNEY GENERAL OF MISSOURI Old Post Office Building P.O. Box 861 St. Louis, MO 63188 314−340−7861 Fax: 314−340−7029 Email: robert.isaacson@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 5 of 11

City of Ferguson, Missouri, TERMINATED: 11/05/2014

Carl J. Lumley CURTIS AND HEINZ, P.C. 130 S. Bemiston Avenue Suite 200 St. Louis, MO 63105−1951 314−725−8788 Fax: 314−725−8789 Email: clumley@lawfirmemail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Does 1−5 in their individual capacities TERMINATED: 11/04/2014

Date Filed 08/18/2014
08/18/2014 08/18/2014 08/18/2014 08/18/2014 08/18/2014
08/18/2014 08/18/2014 08/18/2014 08/18/2014 08/19/2014 08/19/2014 08/19/2014

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−4455239, in the amount of $400 Non−Jury Demand,, filed by Mustafa Abdullah. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons, # 4 Summons)(Rothert, Anthony) (Entered: 08/18/2014)
2 NOTICE OF PROCESS SERVER by Plaintiff Mustafa Abdullah Process Server: Brian Lilley (Rothert, Anthony) (Entered: 08/18/2014)
3 MOTION for Temporary Restraining Order by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 08/18/2014)
4 MEMORANDUM in Support of Motion re 3 MOTION for Temporary Restraining Order filed by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 08/18/2014)
Case Opening Notification: 2 Summons(es) issued. The summons were emailed to attorney Anthony E. Rothert. Judge Assigned: U.S. District Judge Catherine D. Perry. (BAK) (Entered: 08/18/2014)
5 Minute Entry for proceedings held before District Judge Catherine D. Perry: Motion Hearing held on 8/18/2014 re 3 MOTION for Temporary Restraining Order filed by Mustafa Abdullah. Attorney General Chris Koster appears by telephone. Attorneys Anthony Rothert, Grant Doty, Robert Grant and the plaintiff appear in person. Andrea Spillars appears by phone and is called as a witness by Defendant Ronald Replogle. The Court hears testimony from witnesses, views an exhibit, and hears arguments from counsel. The Court denies the motion. Order to issue. (Court Reporter:S. Moran.) (FTR Gold: No.) (BRP) (Entered: 08/18/2014)
6 CLERK'S WITNESS LIST as to Motion Hearing. (BRP) (Entered: 08/18/2014)
7 CLERK'S Exhibit List as to Motion Hearing. (BRP) (Entered: 08/18/2014)
8 ORDER: IT IS HEREBY ORDERED that the plaintiff's motion for a temporary restraining order [# 3 ] is denied. Signed by District Judge Catherine D. Perry on August 18, 2014. (BRP) (Entered: 08/18/2014)
***REMARK: Order # 8 was emailed to Asst. Attorney General James Layton and hand delivered Deputy County Counseler Robert Grant. Attorney Anthony Rothert was served by the Court's Electronic Case Filing system. (BRP) (Entered: 08/18/2014)
9 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Plaintiff Mustafa Abdullah re 7 Exhibit List (Rothert, Anthony) (Entered: 08/19/2014)
10 EXHIBIT A, received by the Court during the evidentiary hearing held on August 18, 2014, has been received in DVD format. The disc shall be stored in the Clerk's Office file room. (BRP) (Entered: 08/19/2014)
11 SUMMONS Returned Executed filed by Mustafa Abdullah. County of Saint Louis, Missouri served on 8/19/2014, answer due 9/9/2014. (Rothert, Anthony) (Entered: 08/19/2014)

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 6 of 11

08/22/2014
08/26/2014 08/26/2014 08/26/2014
08/26/2014 08/27/2014 08/27/2014 08/27/2014 08/28/2014 08/28/2014 08/29/2014

12 TRANSCRIPT of 5 (MOTION HEARING) held on August 18, 2014 before Judge CATHERINE D. PERRY. Court Reporter/Transcriber Susan Moran, Susan_Moran@moed.uscourts.gov, 314−244−7983. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/12/2014. Redacted Transcript Deadline set for 9/22/2014. Release of Transcript Restriction set for 11/20/2014. (BRP) (Entered: 08/22/2014)
13 ENTRY of Appearance by Grant R. Doty for Plaintiff Mustafa Abdullah. (Doty, Grant) (Entered: 08/26/2014)
14 MOTION for Preliminary Injunction by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 08/26/2014)
15 MOTION for Leave to File in Excess of Page Limitation re memorandum in support of motion for preliminary injunction by Plaintiff Mustafa Abdullah. (Attachments: # 1 Proposed Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of mustafa abduallah), # 3 Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of grant doty), # 4** Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of thomas clancy), # 5 Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of jo holbrook), # 6 Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of joel reinstein), # 7 Exhibit exhibit to proposed memorandum in support of motion for preliminary injunction (declaration of james ginger))(Rothert, Anthony)NOTE: *** Exhibit 4 − Thomas Clancy Declaration and associate exhibits were filed with this motion by mistake − Exhibit 4 to be filed as attachment to motion 16 instead ***(CBL). (Entered: 08/26/2014)
16 MOTION for Relief Judicial Notice Pursuant to Rule 201 of the Federal Rules of Evidence by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Additional attachment(s) added on 8/27/2014: # 1 Declaration of Thomas Clancy and associated exhibits) (CBL). (NOTE: Filing attorney is aware that photographs are missing from several pages of exhibits. Modification is not required per attorney.) (CBL). (Entered: 08/26/2014)
17 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Plaintiff Mustafa Abdullah re 14 MOTION for Preliminary Injunction (Rothert, Anthony) (Entered: 08/27/2014)
18 ENTRY of Appearance by Gillian R. Wilcox for Plaintiff Mustafa Abdullah. (Wilcox, Gillian) (Entered: 08/27/2014)
19 EXHIBITS Received: Disc containing Exhibits A, B and C to Declaration of Jo Holbrook − Document 15 −5 (Memorandum in Support of Motion for Preliminary Injunction) by Plaintiff Mustafa Abdullah. Disc to be maintained in clerk's office in original format. (CBL) (Entered: 08/27/2014)
20 Docket Text ORDER: Re: 15 MOTION for Leave to File in Excess of Page Limitation ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 8/28/14. (CDP) (Entered: 08/28/2014)
21 MEMORANDUM in Support of Motion re 14 MOTION for Preliminary Injunction filed by Plaintiff Mustafa Abdullah. (Attachments: # 1 Declaration of Mustafa Abdullah, # 2 Declaration of Grant R. Doty, # 3 Declaration of Jo Holbrook, # 4 Declaration of Joel Reinstein, # 5 Declaration of James D. Ginger)(MCB) (Entered: 08/29/2014)
22 ORDER: IT IS HEREBY ORDERED that this matter is set for a telephone scheduling conference, with counsel only, on Friday, September 5, 2014 at 9:30 a.m. Plaintiff's counsel is responsible for placing the call and having all other counsel on the line before contacting the Court at 314−244−7520. (Telephone Conference set for 9/5/2014 09:30 AM in Courtroom 14S before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on August 29, 2014. (BRP) (Entered: 08/29/2014)

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 7 of 11

08/29/2014 08/29/2014
08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 08/29/2014 09/02/2014
09/02/2014 09/02/2014 09/04/2014 09/05/2014 09/08/2014

23 ENTRY of Appearance by Michael A. Shuman for Defendant County of Saint Louis, Missouri. (Shuman, Michael) (Entered: 08/29/2014)
24 MOTION for Leave to Appear Pro Hac Vice Kenneth M. Trujillo−Jamison. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiff Mustafa Abdullah. (Attachments: # 1 Certificate of Good Standing)(CBL) (Entered: 08/29/2014)
25 MOTION for Leave to Appear Pro Hac Vice Thomas P. Clancy. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiff Mustafa Abdullah. (Attachments: # 1 Certificate of Good Standing)(CBL) (Entered: 08/29/2014)
26 MOTION for Leave to Appear Pro Hac Vice Nathan M. Rehn. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiff Mustafa Abdullah. (Attachments: # 1 Certificate of Good Standing)(CBL) (Entered: 08/29/2014)
27 MOTION for Leave to Appear Pro Hac Vice Grant A. Davis−Denny. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiff Mustafa Abdullah. (Attachments: # 1 Certificate of Good Standing)(CBL) (Entered: 08/29/2014)
28 MOTION for Leave to Appear Pro Hac Vice Victoria A. Degtyareva. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiff Mustafa Abdullah. (Attachments: # 1 Certificate of Good Standing)(CBL) (Entered: 08/29/2014)
Receipt 4644044961 in the amount of $100.00 for PRO HAC VICE on behalf of Grant A. Davis−Denny (CCAM) (Entered: 08/31/2014)
Receipt 4644044961 in the amount of $100.00 for PRO HAC VICE on behalf of Kenneth Michael Trujillo−Jamis (CCAM) (Entered: 08/31/2014)
Receipt 4644044961 in the amount of $100.00 for PRO HAC VICE on behalf of Nathan M. Rehn (CCAM) (Entered: 08/31/2014)
Receipt 4644044961 in the amount of $100.00 for PRO HAC VICE on behalf of Thomas P. Clancy (CCAM) (Entered: 08/31/2014)
Receipt 4644044961 in the amount of $100.00 for PRO HAC VICE on behalf of Victoria A. Degtyareva (CCAM) (Entered: 08/31/2014)
29 Docket Text ORDER: Re: [24, 25, 26, 27, 28] MOTIONS for Leave to Appear Pro Hac Vice Victoria A. Degtyareva, Thomas P. Clancy,Kenneth M. Trujillo−Jamison, Grant A. Davis−Denny, and Nathan M. Rehn ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 9/2/14. (CDP) (Entered: 09/02/2014)
30 NOTICE regarding proof of service re: 23 ENTRY of Appearance by Michael A. Shuman for Defendant County of Saint Louis, Missouri. (Shuman, Michael) Modified on 9/2/2014 (CBL). (Entered: 09/02/2014)
31 ENTRY of Appearance by James R. Layton for Defendant Ronald Replogle. (Layton, James) (Entered: 09/02/2014)
32 ANSWER to 1 Complaint, by County of Saint Louis, Missouri.(Shuman, Michael) (Entered: 09/04/2014)
33 ENTRY of Appearance by Robert J. Isaacson for Defendant Ronald Replogle. (Isaacson, Robert) (Entered: 09/05/2014)
34 MEMORANDUM AND PRE−HEARING ORDER: IT IS HEREBY ORDERED that this matter is set for a preliminary injunction hearing on September 29, 2014 at 9:00 a.m. in Courtroom 14−South. IT IS FURTHER ORDERED that the following schedule shall apply to the preliminary injunction hearing and will be modified only upon a showing of exceptional circumstances: 1. Defendants shall file a response to plaintiff's motion for preliminary injunction [# 14 ] no later than September 15, 2014. 2. Plaintiff shall file any reply in support of his motion for preliminary injunction no later than September 22, 2014. 3. No later than September 25, 2014, the parties shall each file a list of all witnesses they expect to call at the hearing. 4. No later than September 25, 2014, plaintiff shall file a proposed form of preliminary injunction and e−mail a word processing version of this document to my judicial assistant. (Response to Court due by 9/25/2014.) Signed by District Judge Catherine D. Perry on September

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 8 of 11

09/15/2014
09/15/2014 09/17/2014
09/22/2014 09/24/2014 09/24/2014 09/25/2014 09/25/2014 09/28/2014 09/29/2014
09/29/2014 09/29/2014 09/30/2014 10/03/2014 10/06/2014 10/06/2014 10/06/2014

8, 2014. (BRP) (Entered: 09/08/2014)
35 MEMORANDUM in Opposition re 14 MOTION for Preliminary Injunction filed by Defendant County of Saint Louis, Missouri. (Attachments: # 1 Exhibit Executive Order 14−08, # 2 Exhibit Executive Order 14−10)(Shuman, Michael) (Entered: 09/15/2014)
36 MEMORANDUM in Opposition re 14 MOTION for Preliminary Injunction filed by Defendant Ronald Replogle. (Layton, James) (Entered: 09/15/2014)
37 MOTION to Exclude all actual and potential witnesses from the courtroom during the preliminary injunction proceedings in this case other than the period of actual testimony by each witness by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 09/17/2014)
38 REPLY to Response to Motion re 14 MOTION for Preliminary Injunction filed by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 09/22/2014)
39 WITNESS LIST by Defendant County of Saint Louis, Missouri. (Shuman, Michael) (Entered: 09/24/2014)
40 WITNESS LIST by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 09/24/2014)
41 WITNESS LIST by Defendant Ronald Replogle. (Isaacson, Robert) (Entered: 09/25/2014)
42 Proposed Form of Preliminary Injunction by Plaintiff Mustafa Abdullah. (Rothert, Anthony) Modified on 10/1/2014 (CBL). (Entered: 09/25/2014)
43 MOTION to Amend/Correct 40 Witness List to add newly discovered witness by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 09/28/2014)
44 Minute Order. Proceedings held before District Judge Catherine D. Perry: Parties present for Preliminary Injunction. The Court made the following rulings: #16 Motion for Relief is DENIED; #37 Motion to Exclude witnesses is GRANTED; #43 Motion to Amend Witness List is GRANTED. Testomony heard. Closing arguments made. Exhibits rec'd into evidence. Matter taken under submission. Exhibits in paper and disk format stored in Clerk's Office .(Court Reporter G. Madden.) (MCB) (Entered: 09/30/2014)
45 CLERKS WITNESS LIST as to Preliminary Injunction. (MCB) (Entered: 09/30/2014)
46 CLERKS Exhibit List as to Preliminary Injunction. (MCB) (Entered: 09/30/2014)
47 ANSWER to 1 Complaint, by Ronald Replogle.(Isaacson, Robert) (Main Document 47 replaced on 9/30/2014) (CBL). (Entered: 09/30/2014)
48 MOTION to Supplement 14 MOTION for Preliminary Injunction by Plaintiff Mustafa Abdullah. (Attachments: # 1 Affidavit)(Rothert, Anthony) (Entered: 10/03/2014)
49 MEMORANDUM in Opposition re 48 MOTION to Supplement 14 MOTION for Preliminary Injunction filed by Defendant County of Saint Louis, Missouri. (Shuman, Michael) (Entered: 10/06/2014)
50 Docket Text ORDER: Re: 48 MOTION to Supplement ; ORDERED Leave to file GRANTED. Signed by District Judge Catherine D. Perry on 10/6/14. (CDP) (Entered: 10/06/2014)
51 MEMORANDUM, ORDER, AND PRELIMINARY INJUNCTION: IT IS HEREBY ORDERED that plaintiff's motion for a preliminary injunction [# 14 ] is granted, and defendants, their officers, employees, or agents, and those acting on their behalf or in concert with them, are enjoined from enforcing or threatening to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or order to move individuals who are violating no statute or regulation and who are peaceably standing, marching, or assembling on public sidewalks in Ferguson, Missouri. IT IS FURTHER ORDERED that this order shall not prevent defendants from enforcing the Missouri refusal−to−disperse statute, Mo. Rev. Stat. §574.060. IT IS FURTHER ORDERED that this injunction becomes effective

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 9 of 11

10/06/2014 10/17/2014
10/29/2014 10/29/2014 11/04/2014 11/04/2014
11/05/2014
11/05/2014 11/05/2014 11/14/2014 11/18/2014 11/21/2014 11/21/2014
12/02/2014

only upon plaintiff's posting a bond in the amount of $100, and remains in effect until entry of judgment on the merits or further order of the court. Signed by District Judge Catherine D. Perry on October 6, 2014. (BRP) (Entered: 10/06/2014)
Receipt 4644045727 in the amount of $100.00 for COMM REG−OTHER−BOND−COLB on behalf of Grant Doty (CCAM) (Entered: 10/07/2014)
52 ORDER SETTING RULE 16 CONFERENCE. (see order for details) This case is assigned to Track: 2 (Standard). Joint Scheduling Plan due by 11/14/2014. Rule 16 Conference set for 11/21/2014 10:00 AM in Chambers before District Judge Catherine D. Perry. Signed by District Judge Catherine D. Perry on 10/17/2014. (CBL) (Entered: 10/17/2014)
53 Consent MOTION for Leave to File First Amended Complaint by Plaintiff Mustafa Abdullah. (Attachments: # 1 Proposed Amended Complaint)(Rothert, Anthony) (Entered: 10/29/2014)
54 STIPULATION of Plaintiff and proposed Defendant City of Ferguson, Missouri re: filing of amended complaint, waiver of service, and entry of proposed permanent injunction by Plaintiff Mustafa Abdullah. (Attachments: # 1 Text of Proposed Order)(Rothert, Anthony) (Entered: 10/29/2014)
55 Docket Text ORDER: Re: 53 Consent MOTION for Leave to File First Amended Complaint ; ORDERED GRANTED; First Amended Complaint deemed filed today. Signed by District Judge Catherine D. Perry on 11/4/14. (CDP) (Entered: 11/04/2014)
56 AMENDED COMPLAINT against defendant County of Saint Louis, Missouri, Ronald Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol, City of Ferguson, Missouri. Amendment to 1 Complaint filed by Mustafa Abdullah, Natasha Gray, Deray McKesson, Robert Hudgins. Related document: 1 Complaint, filed by Mustafa Abdullah.(CBL) (Entered: 11/05/2014)
57 CONSENT JUDGMENT between Plaintiffs and Defendant, City of Ferguson, Missouri. This Order grants the full extent of relief to be afforded Plaintiffs herein against the City, and any and all other claims stated herein against the City are hereby dismissed. IT IS SO ORDERED. Signed by District Judge Catherine D. Perry on 11/05/2014. (CBL) (Entered: 11/05/2014)
***REMARK −− Consent Judgment 57 sent to Carl J. Lumley, Counsel for Defendant, City of Ferguson, Missouri via U.S. Mail this date. (CBL) (Entered: 11/05/2014)
58 ENTRY of Appearance by Carl J. Lumley for Defendant City of Ferguson, Missouri,. (Lumley, Carl) (Entered: 11/05/2014)
59 JOINT SCHEDULING PLAN by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. . (Doty, Grant) (Entered: 11/14/2014)
60 ANSWER to 56 Amended Complaint, by Ronald Replogle.(Isaacson, Robert) (Entered: 11/18/2014)
61 ENTRY of Appearance by Andrew J. McNulty for Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (McNulty, Andrew) (Entered: 11/21/2014)
62 ORDER − IT IS HEREBY ORDERED that this matter is set for a telephone conference on Thursday, December 18, 2014 at 3:30 p.m. Plaintiff's counsel is responsible for placing the call and having all necessary counsel on the line before calling the court at (314) 244−7520. Signed by District Judge Catherine D. Perry on November 21, 2014. (MCB) (Entered: 11/21/2014)
63 TRANSCRIPT of 44 (PRELIMINARY INJUNCTION HEARING) held on September 29, 2014 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/23/2014.

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 10 of 11

12/19/2014 12/19/2014
12/22/2014 12/22/2014
01/30/2015 01/30/2015 01/30/2015 02/27/2015 03/02/2015 03/02/2015

Redacted Transcript Deadline set for 1/2/2015. Release of Transcript Restriction set for 3/2/2015. (CBL) (Entered: 12/02/2014)
64 Joint MOTION to Approve Consent Judgment by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Attachments: # 1 Text of Proposed Order)(Rothert, Anthony) (Entered: 12/19/2014)
65 Joint MOTION for Extension of Time to File ;Extension to file the following: motion for attorneys' fees & expenses and bill of costs, memorandum in support, responses, and reply ;Proposed extension date Motion for Attorneys Fees and Expenses, Memorandum in Support, and Bill of Costs due no later than January 30, 2015. Responses of Defendants due no later than March 2, 2015. Any reply due no later than March 16, 2015. by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Rothert, Anthony) (Entered: 12/19/2014)
66 Docket Text ORDER: Re: 65 Joint MOTION for Extension of Time to File motion for attorneys' fees & expenses and bill of costs, memorandum in support, responses, and reply ;Motion for Attorneys Fees and Expenses, Memorandum in Support, and Bill of Costs due no later than January 30, 2015. Responses of Defendants due no later than March 2, 2015. Any reply due no later than March 16, 2015; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 12/22/14. (CDP) (Entered: 12/22/2014)
67 ORDER − IT IS HEREBY ORDERED that Defendants, and their officers, employees, or agents and those acting on their behalf or in concert with them, are enjoined from enforcing or threatening to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or order to move individuals who are violating no statute, ordinance or regulation and who are peaceably standing, marching, or assembling on public sidewalks in Ferguson, Missouri. This order does not prohibit Defendants from arresting, threatening to arrest, or ordering to move individuals whom Defendants have probable cause to believe: (1) are part of an unlawful assembly or a riot; (2) are violating, or have agreed with six or more other persons to violate, any criminal laws with force or violence; (3) are violating a statute, ordinance or regulation; or (4) have knowingly failed or refused to obey a lawful command of a law enforcement officer to depart from the scene of an unlawful assembly or riot. IT IS FURTHER ORDERED that this order shall not prevent Defendants from enforcing the Missouri refusal−to−disperse statute, Mo. Rev. Stat. Section 574.060. IT IS FINALLY ORDERED that this Court retains jurisdiction to enforce this order and to adjudicate any claims for recovery of attorneys' fees and costs. Signed by District Judge Catherine D. Perry on December 22, 2014. (MCB) (Entered: 12/22/2014)
68 MOTION for Bill of Costs by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Rothert, Anthony) (Entered: 01/30/2015)
69 MOTION for Attorney Fees & expenses by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Rothert, Anthony) (Entered: 01/30/2015)
70 MEMORANDUM in Support of Motion re 69 MOTION for Attorney Fees & expenses filed by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Attachments: # 1 Affidavit Affidavit of Anthony E. Rothert, # 2 Affidavit Affidavit of Richard Scherrer, # 3 Affidavit Affidavit of Grant Davis−Denny, # 4 Affidavit Affidavit of Carol Sobel)(Rothert, Anthony) (Entered: 01/30/2015)
71 MEMORANDUM in Opposition re 68 MOTION for Bill of Costs , 69 MOTION for Attorney Fees & expenses filed by Defendant County of Saint Louis, Missouri. (Shuman, Michael) (Entered: 02/27/2015)
72 MOTION for Leave to File in Excess of Page Limitation by Defendant Ronald Replogle. (Isaacson, Robert) (Entered: 03/02/2015)
73 MEMORANDUM in Opposition re 69 MOTION for Attorney Fees & expenses filed by Defendant Ronald Replogle. (Attachments: # 1 Exhibit 1−Affidavit of Robert Isaacson, # 2 Exhibit 1 to Affidavit of Robert Isaacson, # 3 Exhibit 2 to Affiavit of Robert Isaacson, # 4 Exhibit 2, # 5 Exhibit 3−Part 1, # 6 Exhibit 3−Part 2)(Isaacson, Robert) (Entered: 03/02/2015)

Case: 4:14-cv-1436 As of: 11/14/2017 02:08 PM CST 11 of 11

03/03/2015 03/16/2015 04/01/2015 04/02/2015 07/06/2015 09/24/2015
09/24/2015 08/19/2016
08/22/2016 08/22/2016 08/24/2016

74 Docket Text ORDER: Re: 72 MOTION for Leave to File in Excess of Page Limitation ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 3/3/15. (CDP) (Entered: 03/03/2015)
75 REPLY to Response to Motion re 69 MOTION for Attorney Fees & expenses filed by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 03/16/2015)
76 MOTION to Withdraw as Attorney ;attorney/firm Grant R. Doty by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Doty, Grant) (Entered: 04/01/2015)
77 Docket Text ORDER: Re: 76 MOTION to Withdraw as Attorney Grant R. Doty ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 4/2/15. (CDP) (Entered: 04/02/2015)
78 MOTION to Supplement 69 MOTION for Attorney Fees & expenses by Plaintiffs Mustafa Abdullah, Natasha Gray, Robert Hudgins, Deray McKesson. (Attachments: # 1 Kennard v. Kliendeneist Order, # 2 Survivors Network of Those Abused by Priests v. Joyce Order)(Rothert, Anthony) (Entered: 07/06/2015)
79 MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for a bill of costs [# 68 ] is GRANTED and the Clerk of the Court shall tax costs in the amount of $900. IT IS FURTHER ORDERED that plaintiffs' motion for attorneys' fees [# 69 ] is GRANTED IN PART and defendants are jointly and severally liable for plaintiffs' attorneys' fees and expenses in the amount of $152,867.34. IT IS FURTHER ORDERED that plaintiffs' motion for leave to supplement [# 78 ] is DENIED as moot. Signed by District Judge Catherine D. Perry on 9/24/2015. (CBL) (Entered: 09/24/2015)
80 Bill of Costs Taxed in amount of $ 900.00 against Defendants. (CBL) (Entered: 09/24/2015)
81 ORDER − Accordingly, IT IS HEREBY ORDERED that, plaintiffs shall provide the necessary information required by Local Rule 67−13.04(D)(2) to the Clerk of the Court. IT IS FURTHER ORDERED that, upon receipt of the necessary information from plaintiffs, the Clerk of Court is ordered to disburse the bond paid into the Registry of the Court on October 6, 2014, as follows: One Hundred Dollars and Zero Cents in principal, plus associated interest, less administrative fees, payable as indicated by plaintiffs. Signed by District Judge Catherine D. Perry on August 19, 2016. (MCB) (Entered: 08/19/2016)
82 MEMORANDUM re 81 Order,, by Plaintiff Mustafa Abdullah. (Rothert, Anthony) (Entered: 08/22/2016)
***REMARK − Order 81 and Memorandum 82 forwarded to USDC Finance this date. (CBL) (Entered: 08/22/2016)
83 Letter to Anthony Rothert from Clerk of the Court Finance Department re: Distribution Funds. (EAB) (Entered: 08/24/2016)