Were the Arrests of Protesters by Des Moines Police in a Residential Apartment Building Legal? Probably Not, Experts Say.

Stills from a video recorded on Facebook Live by John “Rage” Leonetti, a Des Moines DJ and Black Lives Matter activist, of police entering his apartment complex to arrest protesters on June 3. Images: John Rage Leonetti/Facebook

About half an hour after midnight on the morning of June 3, two Des Moines police officers violently removed a group of protesters from a residential apartment elevator in the East Village neighborhood.

Though a standoff ended that night without the kind of chemical irritants used by Polk County law enforcement the night prior, multiple protesters attempting to comply peacefully with the order to disperse were arrested anyway, according to multiple sources at the scene. These arrests consistently utilized tackling or some other form of violent subduing even when those arrested were not resisting.

A group of approximately eight protesters had been attempting to comply with orders from law enforcement by leaving the public streets where the Polk County curfew was still in effect by entering the apartment building where a member of the group lived. What happened next was captured on a Facebook livestream recorded by John “Rage” Leonetti, a local DJ and visible fixture at the Des Moines Black Lives Matter protests.

The video depicts Leonetti and his fellow protesters attempting to seek shelter in the apartment building. On the livestream, Leonetti can be heard saying that police were “attacking peaceful people walking to their cars,” calling the police actions “terrorism,” and shouting various expletives at the police from within the apartment’s hallway.

As police approach the door, the protesters can be heard asking them not to enter and assuring them they are going home. Protesters then retreated to an elevator in the building where Des Moines police officers, in full riot gear and with pepper spray raised, caught up with them after entering the building. The last transmission from the livestream depicts Leonetti and his fellow protesters being manhandled out of the elevator amid screaming pleas for mercy.

Police officers arresting a group of frightened, non-violent citizens within a private residence was shocking enough in itself that Leonetti’s video immediately went viral. For those who sympathize with Leonetti and his fellow protesters, there’s no question that the scene was unwarranted, that police had no justification for crossing the threshold of someone’s home and arresting them while they were attempting to comply with the order they were accused of obstructing.

Leonetti and the other protesters were eventually charged with “interference with official acts,” ostensibly for violating the curfew. But what does the law, the system of regulations and restrictions police officers are supposedly representing, say about their conduct that evening? Was this act of warrantless intrusion into a private home by Des Moines police legal?

When approached with the details of the situation, Gina Messamer, a lawyer specializing in civil and criminal law at the Parrish Kruidenier law firm in Des Moines, told the Informer there were a few different issues to consider when deciding if a police officer has lawfully entered a private residence. One is the location. The hallway of an apartment building qualifies as one of the arrested protester’s place of residence and the others were tacitly his guests. According to Messamer, in a situation that requires a key to enter, officers would ideally have a warrant. The officers were able to enter the building without the assistance or permission of a resident by using an emergency keycode, according to Leonetti.

There are certain “exigent circumstances” that a police officer could use to justify warrantless entry into a private residence. Were there mitigating details about the circumstance that would justify the police’s entering the residence?

Messamer referenced two Iowa Supreme Court cases that have established legal precedence when it comes to this issue. There’s State v. Legg, a 2001 case in which a police officer followed a woman fleeing from an attempt to pull her over to her home and entered her garage. The court ruled that because the officer was in “hot pursuit” of the defendant and already had probable cause to arrest her for obstructing justice by fleeing from the intended speeding ticket, the breach of privacy was justified. The court also noted the fact that the officer had only taken a few steps inside the open door of a building not attached to the house proper showed this breach was relatively minor.

The other Iowa Supreme Court case cited by Messamer was State v. Naujoks from 2002. In this case, police had information leading them to believe that burgled goods were within the defendant’s apartment. Though police did recover stolen items in the apartment, it was argued in court that the warrantless entrance of the private residence should not have been allowed. This case, like State v. Legg, hinged on exigent circumstances. The court ruled that “probable cause alone is not sufficient to justify the officers’ warrantless search of an apartment” and that police’s subjective concerns for their own safety alone did not justify their actions. There was no risk of the suspect fleeing, no weapons or threats of violence, and no risk that evidence would be destroyed.

“I think it was an abuse of power, as were many of the arrests that I have seen and heard about in the news.”

Were there exigent circumstances that police could offer to legitimize their entry into an apartment complex that night to arrest protesters complying peacefully with an order to disperse? If the protesters were acting out violently, for instance, by throwing rocks at the police before entering the apartment, that would give police the exigent circumstances to justify their actions. But according to Leonetti, he and his fellow protesters were peacefully complying with the order to disperse and the video evidence does not support the idea that officers had any probable cause to pursue the protesters beyond the curfew violation.

“The individuals arrested in this video were observed engaged in behavior that was in direct conflict with the dispersal orders and the countywide curfew,” police spokesperson Paul Parizek said about the arrest. “Officers located them within the shared common area of the apartment building. As officers attempted to make contact, the group became hostile.”

“When a public offense is committed in one location and officers locate in a different location the persons that they have a reasonable belief were the ones who committed the offense, further investigation is lawful,” he added.

It’s clear from this statement that Parizek is aware that the officers’ warrantless entrance would require exigent circumstances for legitimacy. In this case, the police’s argument for probable cause appears to be the simple fact that they were out in public after the curfew, even though Des Moines police officers have admitted in recorded statements that the curfew was only ever selectively applied. For Messamer, violating the curfew doesn’t seem substantial enough to warrant the police officers’ breach of privacy.

“This [racial profiling] ordinance is a smokescreen. We need to defund the police. We need to take away their power.”

“If they were just at a protest and they were told to go home and they’re at home, I’m not sure if that’s going to be good enough,” she told the Informer.

The legality of the situation seems to rest entirely on what exactly the Polk County curfew permitted law enforcement to do. From the gratuitous violence allegedly employed by law enforcement, it seems that the curfew was interpreted as a carte blanche allowing them to act with whatever level of impunity they desired. Not only did they make use of dangerous chemical irritants like tear gas and pepper spray in dense residential areas at will, they also seemed to ignore the normal barriers that keep them from private property without warrant — and not just in this situation. The Blazing Saddle bar in the East Village neighborhood was violently raided the night prior, an action police also argued was justified due to the curfew and the fact that bar employees were providing first aid to injured protesters.

“I think it was an abuse of power, as were many of the arrests that I have seen and heard about in the news,” Sally Frank, a professor at Drake University’s law school, told the Informer when asked to comment on the residential apartment arrest. “I do not think that the police will be able to prove many of the cases they filed. However, the county never should have instituted the curfew because it was asking for abusive and discriminatory policing.”

Frank also said that even if the police didn’t understand that it was the home of one of the people arrested, they had no excuse to be on private property if they had no complaint or consent from those who resided there.

If anything, this arrest seems to only have invigorated Leonetti’s commitment to the Black Lives Matter cause. Since he was bailed out the morning after his arrest, he has continued to be a constant presence at the marches and a vocal critic of the police.

“I’m not against the police,” Leonetti told the Informer. “I’m against police misconduct and brutality with a lack of real accountability. Veterans don’t go to war and risk their lives so we can have freedoms sometimes.”

The Black Lives Matter movement also added the arresting officers to a recent list of demands that called on the Des Moines Police Department to “arrest DMPD Officers Thomas Garcia and Brian Foster, charge them with abuse of power and terminate them for their arrests of people in their own home.”

When the Des Moines City Council met on June 8 over video conferencing software to discuss passage of a weak racial profiling ordinance that had been on the table before the protests began, a multi-hour public comment period featured various activists and local residents speaking out about the need for police reform and abolition. One of the bodiless voices that spoke during this period announced itself as John Leonetti.

“This ordinance is a smokescreen,” he said. “We need to defund the police. We need to take away their power.”

Correction: An earlier version of this article misspelled Gina Messamer’s last name and the name of her law firm.