ACLU lawsuit brought against Cape Girardeau cop

The city of Cape Girardeau and one of its police officers are being sued again by the American Civil Liberties Union of Missouri.

ACLU client David Clary is suing officer Matthew Peters and the city for what he claims was an unconstitutional arrest last year.

This is Peters' second legal encounter Peters with the ACLU. In March 2013, a federal judge ordered Peters and the state pay more than $62,000 in attorneys' fees for a 2009 arrest he made regarding flag desecration. The plaintiff in that case was Frank L. Snider.

According to the official complaint, Clary is seeking judgment against Peters for:

* First Amendment retaliation;

* Judgment against the city for failure to supervise and train Peters;

* A declaratory judgment that a section in the Cape Girardeau Code of Ordinances is unconstitutional as applied;

* An award of damages and reasonable attorneys' fees.

The section of the city code in question, known as the prohibited-acts ordinance, bans yelling, shouting, hooting, whistling or singing on any public street, particularly between the hours of 11 p.m. and 6 a.m. or anytime or place that annoys people or disturbs the quiet.

Tony Rothert, Clary's ACLU lawyer, said on the day of Clary's arrest, his client was speaking at a normal volume on a public street at 10:45 a.m.

Clary was driving in Cape Girardeau on Aug. 30, 2013, when Peters pulled him during a traffic stop. Peters issued a citation to Clary for making a prohibited turn, according to the facts listed in the lawsuit.

Clary allegedly insulted the officer multiple times over his displeasure with being cited, the lawsuit states. After Peters attempted to end the confrontation and leave the scene, Clary continued insulting the officer. Peters warned the man if he could be heard at more than 50 feet, he would be arrested for prohibited acts.

Clary was arrested for "expressive conduct," or for what he said to the officer, and was detained for about an hour.

In the lawsuit, Clary says he was arrested for no reason other than his "expressive activity."

The lawsuit argues Clary's actions were noncommercial and conducted on public right-of-way, that they are protected by the First Amendment and did not violate any law.

In count two of the lawsuit, Clary alleges the city developed and maintained policies, customs and practices exhibiting deliberate indifference and that the city was aware Peters was inadequately trained regarding the First Amendment.

Other counts within the suit state prohibited acts are not defined narrowly enough and that the plaintiff's arrest was based on an overboard application of section 17-157 of the city ordinance, which is too vague.

This issue is being handled by the city's insurance company, so the city could not release any information on the case.

Al Spradling III was the attorney and former mayor who represented the city in Snider's case in 2013, and he is the same person believed to be representing the city in this case, Rothert said. Rothert represented Snider.

He said this is the third case the ACLU has participated in Cape Girardeau the past two years. Besides the flag-desecration lawsuit, there was an issue with pamphlets being handed out by members of the Ku Klux Klan throughout the city. Rothert said Cape has had more issues with the First Amendment than any other Missouri city over the past two years.

"When we went down for the [Snider] trial, we spoke to different officers, and it was apparent that they had not had much training [regarding the First Amendment]," Rothert said.

Cape Girardeau Police Department public information officer Darin Hickey said Cape Girardeau officers abide by the Missouri Department of Public Safety's Peace Officer Standards and Training Program, which requires officers to receive 48 hours of mandated training every three years.

Hickey said these hours are split into four main categories: skill, interpersonal, technical and legal hours, and within those are subcategories offering more specific training.

"I've been here since part of the last training as well," Hickey said. "We're coming up on the end of our cycle for training, and since I've been here, we haven't had anyone ever not meet their hours."

The current peace officer training cycle began in 2012 and will end in January.

smaue@semissourian.com

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