Given the facts of the case, the legal issues I raised and the brief answers how would I "word" or "sum" the legal analysis based on the summary of both cases into the memo?

INTRODUCTION

You have asked me to review the facts of the case, conduct relevant research and apply two pertinent court decisions to determine the strengths and weaknesses of Mr. Nash's claim involving a violation of his civil rights, illegal detention, and excessive force used by police.

FACTS

An independent journalist named Hunter Nash was performing his official duties when he decided to live-stream a significant political demonstration in O'Fallon, Missouri.While doing so, he became involved in a "kettling" incident, in which rows of heavily armed police officers dressed in riot gear surrounded and herded protesters into an intersection.

Nash and the other 150 people were detained there as the police made arrests and took people to the headquarters. One policeman forcibly pulled Nash's arm behind his back while performing their duties to prevent him from recording the incident on his cell phone.

When Nash objected and defended his right to be treated as a journalist, the police proceeded to zip-tie him, pepper-spray him, and have him spend many hours sitting on the sidewalk alongside other detainees.

LEGAL ISSUES

1. Were the police justified in "kettling" and detaining Mr. Nash and the other protesters?
2. Was theforce used bypoliceinresponse to Mr. Nash's recording ofthe arrests and detentionsappropriate or excessive?

BRIEF ANSWERS

1. The police were not justified in "kettling" and detaining Mr. Nash and the other protesters because there was no arguable probable cause to believe that the arrested persons were part of a unit observed violating the law.
2. The police response in cuffing and pepper spraying Mr. Nash, a journalist exercising his constitutional right to freedom of press, speech, and assembly, was not appropriate or justifiable.

LEGAL ANALYSIS

Section 1983 protects individuals like Mr. Nash against a violation of civil rights, like the right to freedom of speech, freedom of the press, freedom from excessive force, and improper search and seizure. To begin, we must figure out whether Mr. Nash's first interaction with the police, the "kettling" and mass arrest during a political protest, was an unlawful seizure in violation of the Fourth and Fourteen Amendments. InBaude, the Court said that no constitutional violation occurs if a police officer has "arguable probable cause." The test for "arguable probable cause" is whether "the officer should have known that the arrest violated plaintiff's clearly established right." (Baude at 909). TheBaudeCourt then went on to discuss how the Fourth Amendment is applied in situations involving mass arrests. An important case involving arguable probable cause in a mass arrest situation is Bernini v City of St. Paul, 665 F.3d 997, 1003 (8^th Cir. 2012).In Bernini, safety concerns caused the City of St. Paul to close the downtown area near the 2008 Republican National Convention. 1003. During the convention, a group of protesters defied the order and tried to enter the blocked off area at the same time. The protesters were then redirected to a park, where officers arrested only those individuals who were present at the earlier confrontation. Because the police didn't arrest everyone as a whole, and released half of the protesters, the Bernini Court found there was no constitutional violation. The Baude Court then found that its plaintiff's allegations do not establish that the police could have reasonably concluded the group was acting as a unit or violating the law. The Baude Court noted that there was no evidence of a "credible threat of force or violence to officers or property". In addition, the scene of where the arrests occurred was calm and peaceful. When applying the rules in the Bernini and Baude cases, it cannot be said that Mr. Nash and the other arrestees were acting as a unit or violating the law. Like in Baude, there's no evidence that there was a credible threat of force or violence to officers or property. It appears that the scene where Mr. Nash and the other arrestees were was calm and peacefulpeople were just engaging in a political protest, which is their right under the Constitution. People engaging in protest activity by voicing their displeasure about the police is not a crime. There is no evidence that the protesters arrived at the same time and they were arrested as a wholeunlike the more careful or targeted arrests that occurred in the Bernini case. For these reasons, it appears the facts of this case is more like Baude, where there was a claim of constitutional violation and unlike the facts in Bernini, where there wasn't. Mr. Nash also claims that the police violated his Fourth Amendment right to be free of excessive force through their use of kettling, zip-cuffs, and pepper spray. The Baude Court noted that police officers are entitled to use force as part of an arrest, the "the test is whether the amount of force used was objectively reasonable under the particular circumstances." (Baude at 912) In deciding whether the force is reasonable, the Court can consider "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (Baude at 913). Importantly, the Baude Court noted that force is least justified when the arrestee does not flee, pose no threat to police, and does not resist (Baude at 913). The Baude Court also noted that force is not justified when someone is bitter or abusive to the police (Baude at 913). It cannot be said that the force used against Mr. Nash was reasonable. Mr. Nash, a journalist, was exercising his right to free speech, the press, and assembly by recording the protests and the arrests. He posed no immediate threat to the safety of officers and others, he did not actively resist arrest or attempt to evade arrest by running away. It cannot be said that he was abusive to the policehe was simply trying to record what was going on. But even if he was abusive to the police, they had to no right to restrain and pepper spray him. For these reasons, the actions of the police against him were excessive given what he was doing. CONCLUSION Mr. Nash has a viable case against the City for civil rights violations. First, the police did not have arguable probable cause to arrest Mr. Nash since they indiscriminately "kettled" and arrested everyone without any evidence that they were dangerous to police or property. Second, the level of force of the police against Mr. Nash was excessive and unreasonable. Mr. Nash, a journalist, was simply trying to exercise his right to free speech, press and assembly by recording the protests and arrests. He posed no immediate threat to the safety of the police or others, did not resist or evade arrest, and was not abusive to the police. RECOMMENDATION Our firm should defend Mr. Nash in his civil rights case against "O'Fallon, Missouri" due to the solid alignment of the underlying facts with recognized legal precedents.