Jury rules for Des Moines officers in George Floyd protest lawsuit filed by Denver Foote (2024)

Former Des Moines mayoral candidate Denver Foote has lost their federal lawsuit alleging city police officers wrongly arrested and beat them during the May 2020 George Floyd protests.

Foote uses they/them pronouns, although both sides in last week's trial referred to them as she and her.

The jury deliberated Friday afternoon and most of Monday before returning a verdict in favor of Officers Brandon Holtan and Adam Herman, Foote's attorney Gina Messamer said. Foote intends to appeal.

"This was not a fun experience for Denver, but it was important to do. I’m very proud of Denver," Messamer said in an email."The judge kept the jury from hearing that one of the defendant officers pepper-sprayed and tackled photojournalist Ted Nieters two days later, which we think was a big mistake. We will be appealing that decision."

Nieters has filed his own lawsuit against police and is awaiting its trial.

Foote, 28, was arrested several blocks from where looters were breaking into the Court Avenue Hy-Vee, and was charged with rioting and other offenses. Those charges were dropped shortly before trial, with prosecutors saying there was insufficient evidence for the case to proceed.

In their lawsuit, Foote alleged the officers who pepper-sprayed and battered them had no legal cause to arrest them in the first place, let alone use excessive force. In her opening statement last week, Messamer said Foote was severely beaten without any cause.

Blinded by the pepper spray, "She was unarmed, she posed no threat," said Messamer, who noted that Foote is 4 feet 11 inches tall and weighs barely 100 pounds. "She was up against two trained soldiers."

Previously: Court lets mayoral candidate's lawsuit against Des Moines police proceed to trial

Lawyers for the city, though, said Foote's arrest was the natural result of treating a riot as a "spectator sport."

"Ask yourself, whose choice was it to attend and stay at a riot? What are the reasonable consequences?" attorney Michelle Mackel-Wiederanders said in her opening statement. "What can you expect to happen when you make those choices?"

What happened to Denver Foote during riot?

Foote and their then-boyfriend testified they had attended a rally at the Iowa Capitol on the night of May 30, 2020, and returned home, but then went back downtown looking for a neighbor who was also part of the protests. When Foote saw people begin breaking into buildings, they ran toward an alley.

According to Foote, they were walking alone north on Third Street to get back to their car when they saw police running toward them. The first officer — who has never been identified — hit Foote with pepper spray and kept pursiung as Foote retreated into a small cubby off the street. Holtan and Herman got to Foote next, and hit them first with more pepper spray, then with their shields, and finally several strikes from Herman's baton.

The officers testified they ordered Foote to get down from the cubby, but that Foote refused and tried to escape from them. Foote said they didn't hear any such directions given and was trying to protect themself from the officers, neither of whom recorded the arrest on their body cameras.

Foote testified they were booked into jail and were only able to wash the pepper spray from their eyes when they were released more than a day later.

Did officers have probable cause for arrest?

The jury heard two claims from Foote: that officers lacked legal cause to arrest them, and that they used excessive force.

On the first claim, the city maintains the officers had evidence Foote had committed the crime of unlawful assembly: a gathering of three or more people, any one of whom is acting violently and intending to commit a crime. Mackel-Wiederanders said the officers saw Foote running away from the scene of the riot, wearing all-black clothing and with goggles with a bandana over their face.

"Between what officers Holtan and Herman knew was happening, between what they observed of Ms. Foote, they had more than enough to find probable cause," she said.

Messamer, though, said Foote committed no crime, and that even if they had, the officers can't justify their arrest based on information they didn't know at the time.

"They didn't know if she was anywhere close to Hy-Vee. They didn't know if she was there with anyone else. They testified she was by herself," Messamer said in her closing argument. "So where's the evidence she committed any crime?"

Were the officers justified in using force?

As to whether the officers were justified in beating Foote, Messamer said video from that night shows officers pepper-spraying people downtown "willy-nilly" and that Foote posed no threat to anyone.

"How many tough guys should it take to arrest a tiny, blinded young woman who's boxed in on three sides?" she asked. "Defendant Herman said his only choice was to hit her with his baton. What a joke."

She accused the officers of taking out their frustration over the long night of unrest on the first target they found.

"I understand they had a bad day, but you don't get to have a bad day at work and go home and beat your dog or your kid," she said.

Mackel-Wiederanders, though, said that from the officers' perspective, Foote was resisting arrest and trying to escape.

"The spray did not bring Ms. Foote to the ground. The shields did not bring Ms. Foote to the ground. The baton did," she said. "A small person can still make an arrest difficult."

Foote sought nearly half million in damages

Foote, who ran unsuccessfully for mayor in 2023, testified that they've spent four years dealing with crippling mental and physical challenges they attribute to their encounter with Herman and Holtan, including nightmares, panic attacks that prevented them from driving, and the aggravation of pre-existing back problems.

Messamer had asked the jury for damages of at least $450,000 for past harms, and more for Foote's ongoing and future struggles. Mackel-Wiederanders, for her part, had argued Foote's health struggles predated Foote's arrest.

William Morris covers courts for the Des Moines Register. He can be contacted atwrmorris2@registermedia.comor 715-573-8166.