VERDICT
In the administrative law case
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
State of Baden-Württemberg,
represented by the Stuttgart Police Headquarters,
Hahnemannstr. 1, 70191 Stuttgart,
– Defendant –
due to the determination of the illegality of police measures,
The Administrative Court of Stuttgart – 5th Chamber – through the presiding judge of the Administrative Court xxx, the judge of the Administrative Court xxx, the judge xxx and the lay judges xxx and xxx, has decided on the oral hearing
from November 10, 2021
recognized as rightful:
It is determined that the recording of the plaintiff's personal details, his search and that of his backpack, as well as the making of the film recordings of him after the encirclement on 25 May 2019, were unlawful.
The defendant shall bear the costs of the proceedings.
FACTS
The lawsuit seeks to establish the illegality of police measures taken against a demonstration observer.
On Saturday, May 25, 2019, a demonstration under the motto "Solidarity with the Hunger Strikers" took place in Stuttgart starting at 2 p.m. It was in support of striking prisoners in Turkey who were demanding better prison conditions, particularly for Abdullah Öcalan, the leader of the Kurdish organization KCK (formerly PKK). The day before the demonstration, the Stuttgart Police Headquarters received an email from "Demo Observation Southwest." The organization announced that several of its members would be observing the demonstration. They could be distinguished from the demonstrators by wearing orange safety vests with the inscription "Demonstration Observation." The plaintiff is "part of the organization" without any specific organizational affiliation. He was born in 19xx and at the time of the demonstration wore long [missing information] and a [missing information].
Following an opening rally and a march through Stuttgart's city center, the organizers declared the assembly over at 4:20 p.m. at Stauffenbergplatz. According to the police, numerous violations of the assembly permit conditions occurred during the demonstration, including the "display of prohibited symbols" and the "mass chanting of prohibited slogans." Specifically, a banner previously objected to by the police was distributed to participants by the organizers, and a prohibited flag was carried. Participants in the march repeatedly shouted "Biji serok apo" ("Long live the leader Apo") and masked themselves. An election poster was damaged, and passersby were insulted at the edge of the assembly. To address these offenses, officers arrested several identified suspects away from the main assembly and recorded their identities. At 4:25 p.m., police issued a dispersal order to a demonstration observer for interfering with police checks following the demonstration. At that time, a thunderstorm broke out. At 4:30 p.m., approximately 20 former participants of the demonstration ran as a group into the Königsbau building on Schlossplatz in Stuttgart's city center. Starting at 4:38 p.m., police surrounded a group of people under the arcades of the Königsbau at the corner of Bolzstraße, among whom they suspected at least some of the earlier group to be. The plaintiff was also within the cordon. The officers offered those surrounded the group the option of being released from the cordon upon providing their personal information, provided they were not involved in the incident. The plaintiff did not accept the offer. Other people, including a member of the press and the participants of a bachelorette party, were released from the cordon. Subsequently, the police established the identities of those remaining within the cordon, including the plaintiff, searched him and his backpack, and made video recordings of the plaintiff and his identity card. The check of the plaintiff was completed at 4:55 p.m. The collected data was handed over to the criminal police and forwarded by them to the public prosecutor's office.
In the aftermath, the "Demonstration Observation Southwest" published a brief report on the demonstration on its website. In it, they stated that, according to the permit, the police had anticipated a potential for violence, yet no "de-conflict team" was present. The march was videotaped from a police vehicle and later stopped because prohibited slogans were shouted. From this point onward, the demonstration was continuously filmed from multiple sides with at least four handheld cameras. At times, side banners were not carried at the required distance as stipulated in the permit, and there was a banner at the front of the march, which was removed after an announcement by the demonstration organizers. No other objectionable incidents were observed. The demonstration, including the closing rally and the dispersal of the assembly, proceeded entirely peacefully. Following the demonstration, the police began singling out individual participants and recording their personal information. A small cordon was formed under the arcades of the Königsbau building on Bolzstraße, from which the police only released those who could identify themselves. The demonstration observers were also caught in this kettle pattern and, like everyone else, were only allowed out after their personal details were recorded and they were searched. The police did not seem interested in de-escalation; their measures appeared disproportionate and discouraged the exercise of the fundamental right to freedom of assembly.
The plaintiff subsequently requested a written explanation and justification of the police action, which the police provided in a letter dated July 8, 2019. The authorities stated that numerous criminal acts had been committed by participants during the assembly. After the assembly concluded, several identified suspects were arrested separately from the assembly, and their identities were established. A demonstration observer was also issued a dispersal order because he had interfered with a police check of a perpetrator. Later, a masked group of more than 20 people ran into the Königsbau building, separated in time and space from the concluded assembly. To prevent this dangerous and provocative behavior, the group was stopped and searched. The plaintiff was apparently also present within the cordoned-off area and was therefore searched for dangerous objects and materials used for disguising oneself. The officers made every effort to release those who were clearly uninvolved first. The plaintiff, unlike another "demonstration observer" who also presented a press pass, did not comply with the offer to actively provide his personal details in order to be immediately released from the cordon. Based on the circumstances of the encounter, it had to be assumed that the plaintiff had left his observer position and shown solidarity with the runners. It could not be ruled out that he would remove items from the cordon for these purposes. According to the report on the assembly, which can be viewed on the website of the Southwest Demonstration Observation Unit, the plaintiff neither noticed the displayed prohibited symbols nor the chanted, criminally prohibited slogans, but then questioned the police measures. This contradicts the notion of a neutral observer stance.
On April 25, 2020, the plaintiff filed a lawsuit against the police actions with the Stuttgart Administrative Court. In support of his claim, he states that, like other members of the "Demobeobachtung Südwest" (Demonstration Observation Southwest) group, which operates without any legally formalized structure, he observes demonstrations in his free time, depending on his availability, and intends to continue doing so in the future. The group's goal is to strengthen the fundamental right to freedom of assembly by monitoring restrictions and abuses by the public order office and the police, and by having the demonstrations observed and documented by independent third parties. When he arrived under the arcades in front of the Königsbau (King's Building), no one was masked, no one was running, and no one was committing any crimes. He informed the police officers that he was part of the "Demobeobachtung Südwest" organization and wished to leave the cordoned-off area without having his personal details recorded. This was refused, and he was then searched his backpack, his wallet, and himself "with his hands on the wall." Furthermore, the entire procession was filmed, and he was also filmed. He was unaware of which other demonstration observer the police had released from the cordon. In any case, it was not a member of the "Demonstration Observation Southwest" group. Although he had repeatedly pointed out his role as a demonstration observer, he was not released from the cordon without providing his personal details. Instead, the superior officer had instructed the officers to carry out the measures without regard to the plaintiff's role.
From a legal standpoint, the plaintiff argues that the police officers acted to avert danger. Therefore, he contends, the administrative legal process is available. Although the administrative acts associated with the police measures have been resolved, his interest in a declaratory judgment persists because his fundamental right to informational self-determination was significantly infringed. Furthermore, he asserts that there is a risk of recurrence, and that the measures were taken in public and observed by other individuals, thus establishing a legitimate interest in rehabilitation. The plaintiff also argues that the lawsuit is justified because all measures taken against him were unlawful. Regarding the police's claim that a demonstration observer was issued a formal order to leave the area, he states that he was unaware of any such order. However, after the assembly, a police officer shouted at him, "Go away!" When, in the police's view, he did not move far enough away, they threatened to "take him in" for refusing to comply with the order. The plaintiff then moved further away and replied that he was unaware of any such order.
The plaintiff requests
a ruling that the determination of the plaintiff's personal details, the search of him and his backpack, as well as the making of the film recordings of him after the encirclement on May 25, 2019, were unlawful.
The defendant requests
that the action be dismissed.
The defendant states, in terms of facts, that the group of former assembly participants "covered their lower faces with a 'tube scarf'" and ran "en masse into the Königsbau." The group moved recklessly, intimidating bystanders and demonstrating their power. This was intolerable for the police. According to police experience, such behavior is typical of the young, violence-prone Kurdish scene and its sympathizers, who are intent on provoking the public and security forces. Potential criminal offenses and misdemeanors committed by the running group could have been determined by containing the group and questioning potential witnesses and victims. Regarding the plaintiff, the defendant states that there is no "general experience/knowledge" of the group "Demobeobachtung Südwest" (Demonstration Observation Southwest). Members of the group are occasionally observed at assemblies due to their high-visibility vests. After the assembly was dispersed, at 4:25 p.m. a demonstration observer wearing an orange vest was ordered to leave the area because he had "repeatedly walked into the checkpoint." No personal details were recorded. The plaintiff himself was offered early release from the cordon if he provided his personal information. The plaintiff refused.
From a legal standpoint, the defendant argues that the lawsuit lacks standing because it is contradictory to initially refuse to voluntarily provide one's personal details in order to be released from the police operation early, and then subsequently challenge the measures taken. Furthermore, the lawsuit is also unfounded because the police measures were lawful under the Police Act. Establishing the plaintiff's identity was necessary to prevent him from donning a mask and running through the Königsbau passages in a large group, thereby endangering uninvolved passersby. Based on the circumstances of his encounter directly in front of the Königsbau, the plaintiff apparently abandoned his role as an observer of the already concluded assembly and joined the group. This is further supported by the removal order issued to another demonstration observer who had interfered with the police's check of a suspect. Even if the plaintiff had not been a member of the group, he was nevertheless the correct target of the measure because he had "deliberately joined the group of troublemakers," his identity was unknown to the officers, and unlike other individuals, he had not distanced himself from the group. Therefore, it could not be ruled out that the plaintiff was part of the group or might be removing prohibited items from the cordoned-off area. Doubts about the neutrality of the demonstration observers are ultimately further supported by the fact that, according to the report on the assembly on their website, they claimed to have neither observed the prohibited symbols nor the slogans, which were chanted en masse and subject to criminal penalties.
The search of the plaintiff was also lawful because, as stated above, he could be detained, and it was necessary to ensure that he was not transporting any disguise material or "dangerous objects" for himself or other group members. The simplified identification procedure using a short video recording was justified. The plaintiff's presence with the masked group and the aforementioned considerations justified the assumption that the plaintiff was involved in trespassing and possibly other offenses. Collecting the video footage was necessary to completely eliminate the plaintiff's anonymity, thereby creating the possibility of criminal prosecution and making the plaintiff aware of this possibility.
The court heard evidence during the oral proceedings by examining Chief Inspector xxx, the head of the police operation in question. Regarding his observations, he essentially stated that at the relevant time, he had been positioned somewhat apart to coordinate the ongoing operation. He was then informed by radio after the assembly had ended that officers had issued a dispersal order to a demonstration observer because he had repeatedly walked into a checkpoint. Immediately afterward, he learned of the group heading toward Königsbau. Based on his police experience, he knew that the group might consist of young Kurds. He explained that groups of young men often feel they are in a position of power. When they then encounter an opponent, they do things they later regret. He therefore instructed the officers on site to bring the group under control. A few minutes later, he was informed that the group had stopped at the Königsbau and that police had apprehended them. Based on their behavior, he did not consider this group an assembly, but rather a gathering, and further ordered that the group members be checked and released only in small groups or individually to prevent further displays of bravado and demonstrations of power, which repeatedly provoked counter-reactions, and to avoid the dangers emanating from such an uncontrolled, roaming group. He was informed that the plaintiff in this case and the plaintiff in the parallel proceedings 5 K 2034/20 were also in the group. He was further informed that the two demonstration observers had not accepted the offer to distance themselves from the group. After receiving this information, he summarized the essential facts he knew up to that point. He recalled the email in which the demonstration observers had registered as independent observers. At the same time, he had received information about the order to leave the area. Following this summary, he concluded that the demonstration observers had abandoned their role as mere observers and had shown solidarity with the group. He therefore decided not to release the observers from the cordon without providing their personal details. In the preliminary briefing for the operation, he had informed his officers that demonstration observers would be present and instructed them to allow them to observe. However, the line was drawn at interfering with police operations. In addition to the order to leave the area and the close spatial and temporal connection to the group, the overall situation, above all, gave him sufficient grounds to believe that the demonstration observers had aligned themselves with the group. He received no information regarding the observers' behavior after they were cordoned off, only that they were within the surrounded group and that they refused to leave without providing their personal details. The witness further explained that he had driven parallel to the march at times during the assembly and had seen predominantly dark-clad, mostly male individuals from the Kurdish community who had already begun concealing their faces during the march, sometimes by pulling up their jackets and carrying large banners over their heads. However, according to the operational report, no such concealing materials were found on the individuals during the searches. When asked whether he knew anything about the specific circumstances of the dispersal order, the witness stated that he was only aware of the radio message and had no further information. He also stated that there had been no indication of anyone being taken into custody to enforce the dispersal order. When asked whether he had any personal observations of the events in question, the witness explained that he was, of course, present and could form his own observations. However, his task was to coordinate the forces involved. He added that it would be counterproductive to "throw himself into the fray." Therefore, radio transmissions and reports from the individual operational sections are crucial. His task then involves being somewhat detached and making the decisions. As in this case, the situation is often dynamic, leaving him with only a few minutes at most. Regarding the whereabouts of the data, the witness explained that, as a matter of course, all data from an operation is handed over to the central police evidence and documentation unit (Bedö) after its conclusion, from where the individual units can then access the material. For further details of the witness's statements, please refer to the transcript of the oral hearing.
The plaintiff's representative requested, alternatively, in the event that the court intends to dismiss the action, "to prove that none of the persons who were in the enclosure in question had previously disguised themselves or were part of a group of approximately 20 disguised people who allegedly walked through the Königsbau on May 25, 2019," "the production and review of all video material, in particular the police camera footage, which can be seen in the police video file 00011+ Timecode.mp4 from minute 2:55 and in the plaintiff's submitted file 01.Lauf-zum-Königsbau.mp4 from minute 2:09" [Chamber's note: referring to the video file produced and submitted by the plaintiff in the parallel proceedings 5 K 2034/20].
The defendant's representative has alternatively requested that, in the event that the court otherwise concludes that the surrounded persons are not the aforementioned group, witnesses POK xxx, PH xxx and PH xxx be heard.
The court has the official files before it. For further details, reference is made to these files, in particular two data carriers containing the photographic material taken by the assembly and the plaintiff, the court files and the exchanged pleadings.
REASONS FOR DECISION
The action, which was rightfully brought through administrative channels, is admissible and well-founded.
I. The administrative legal process is open.
The action seeking a declaratory judgment that the police measures in question were unlawful concerns a public law dispute of a non-constitutional nature, pursuant to Section 40 of the Administrative Court Procedure Act (VwGO). In this case, the measures in question served both the purpose of preventing danger and the purpose of criminal prosecution; these are so-called "dual-purpose measures." Therefore, at least one avenue of recourse to administrative law is available against them.
The police are called upon both to investigate repressively committed crimes, § 163 para. 1 of the Code of Criminal Procedure, and to preventively avert dangers to public safety and order, § 1 of the Police Act. While the latter are subject to review by the administrative courts, legal protection against measures taken by the police in their role as a law enforcement authority is granted through the ordinary legal process pursuant to § 23 of the Introductory Act to the Courts Constitution Act, insofar as these measures constitute administrative acts of the judiciary (Federal Administrative Court, judgments of November 23, 2005 – 6 C 2.05 –, juris para. 13 and of December 3, 1974 – 1 C 11.73 BVerwGE 47, 255 <258 ff.>).
In cases of uncertainty regarding the legal nature of police measures and thus the available legal recourse, these must be determined according to whether the reason or objective of the police intervention and, if applicable, its main focus served the prevention of danger or the prosecution of crime. The decisive factor in distinguishing between the two areas of responsibility is how the specific facts would appear to a reasonable citizen in the position of the person concerned, from a natural perspective (Federal Administrative Court, Judgment of December 3, 1974 – BVerwG 1 C 11.73 –, juris para. 24; Bavarian Administrative Court, Decision of November 5, 2009 – 10 C 09.2122 –, juris para. 12; Higher Administrative Court of Baden-Württemberg, Judgment of December 14, 2010 – 1 S 338/10 –, juris para. 16; Higher Administrative Court of Lower Saxony, Decision of November 8, 2013 – 11 OB 263/13 –, juris para. 4). In this context, the expressed or discernible will of the intervening representative is of considerable importance (see Federal Administrative Court, Judgment of December 3, 1974 – 1 C 11.73 –, juris para. 24; Higher Administrative Court of North Rhine-Westphalia, Decision of August 6, 2014 – 5 E.375/14 –, juris para. 5; Higher Administrative Court of Lower Saxony, Decision of November 8, 2013 – 11 OB 263/13 –, juris para. 4). The facts of the case must generally be considered as a whole, unless individual parts of the sequence of events are objectively separable. If the police have forwarded the investigation to the public prosecutor's office or the local court (Section 163 para. 2 of the Code of Criminal Procedure) or acted on the instructions of the public prosecutor's office, there can be no reasonable doubt as to the procedural nature of their intervention. A measure which, based on the overall impression, is aimed at investigating or otherwise prosecuting a criminal offense is not exempt from the review of the ordinary courts under Sections 23 et seq. of the Introductory Act to the Courts Constitution Act (EGGVG) simply because the police investigations may also have prevented future violations of public safety (cf. Federal Administrative Court, Judgment of December 3, 1974 – 1 C 11.73 –, juris para. 24; Hamburg Higher Administrative Court, Decision of August 7, 2018 – 4 So 24/18 –, juris para. 19).
In this context, the focus of the police action cannot be clearly determined. Objectively, the police acted within a dynamic situation, so that, from the perspective of a reasonable citizen, the measures served both to prevent further, future dangers to public safety and order and to create the possibility of prosecuting any violations that had already occurred. Regarding its motivation for the measures, the defendant states, on the one hand, that the police were primarily concerned with prevention, specifically with stopping the masked group running through the Königsbau in order to avoid potential violations of legally protected interests. Furthermore, it was intended to prevent the plaintiff from transporting disguise materials or "dangerous objects" from the cordon. The defendant also relied exclusively on the legal grounds for the prevention of danger (considering this point decisive: Baden-Württemberg Higher Administrative Court, judgment of December 14, 2010 – 1 S 338/10, juris para. 16). On the other hand, the police considered there to be initial suspicion that members of the group had committed criminal offenses, assumed that the plaintiff had abandoned his observer role at the already concluded assembly and joined the group, and forwarded the collected data, including that of the plaintiff, to the public prosecutor's office. Thus, both preventive and repressive considerations were inherent in the police action, and the legal basis for the police action at issue here exists in both police law and criminal prosecution law, specifically in Sections 26 Paragraph 1 No. 1, 29 Paragraph 1 No. 1 and 2, 30 Paragraph 1 No. 1 and Section 36 Paragraph 1 No. 2 of the former Police Act (PolG aF), as well as Sections 163b, 102, and 81b of the Code of Criminal Procedure (StPO).
After all this, the focus of the police intervention cannot be objectively determined for the person affected. In particular, the forwarding of the collected data to the public prosecutor's office does not support the exclusive assignment of such matters to the criminal courts. The corresponding general principle originates from a 1974 decision of the Federal Administrative Court. The reality of police prevention and investigative work has changed fundamentally since then, as have the possibilities and applications of technology for collecting, storing, and forwarding data. As the testimony of witness xxx in the oral proceedings clarifies, the data collected during an operation like the one in question is always forwarded to a responsible, central office, from where other agencies can then access it. Therefore, the forwarding of the data does not allow for a sufficiently reliable conclusion regarding the decisive motivation for collecting the data in this case.
If, after all this, it cannot be sufficiently determined whether the focus of the police intervention was on the law of preventing danger or on that of criminal prosecution, the administrative legal process is at least also available for actions against this intervention (for the exclusive jurisdiction of the administrative courts in this case: Higher Administrative Court of Lower Saxony, decision of November 8, 2013 – 11 OB 263/13 – juris para. 8; Higher Administrative Court of North Rhine-Westphalia, decision of January 9, 2012 – 5 E 251/11 –, juris para. 16; for the plaintiff's right to choose: Danne, JuS 2018, 434, 437 with further references).
II. The action is admissible.
1. Insofar as the action is directed against the identification and the search, it is admissible as a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO). Insofar as the plaintiff objects to the making of the film recordings, it is admissible as a declaratory judgment action pursuant to Section 43 of the Code of Administrative Court Procedure (VwGO).
a. The identification of persons pursuant to Section 26 of the Police Act (old version) is a standard police measure which, by its legal nature, is an administrative act (Administrative Court of Baden-Württemberg, Judgment of December 14, 2010 – 1 S 338/10 –, juris para. 17, referring to Würtenberger/Heckmann, Police Law in Baden-Württemberg, 6th ed., paras. 315 ff., 334; Rachor in Lisken/Denninger, Handbook of Police Law, 4th ed., F paras. 29 ff. <32>; Drews/WackeNogel/Martens, Prevention of Danger, 9th ed., pp. 215 f.). The same applies to the search of persons and property (VGH Baden-Württemberg, judgment of 26.01.1998 – 1 S 3280/96 -, juris Rn. 22).
All three measures have already been completed here, § 43 para. 2 LVwVfG. The appropriate type of action is therefore a declaratory judgment action pursuant to § 113 para. 1 sentence 4 VwGO. The standard is to be applied analogously here because the administrative act was completed before the action was brought (cf. Federal Administrative Court, judgment of 9 February 1967 – 1 C 49.64 – BVerwGE 26, 161, <165> and judgment of 1 July 1975 – 1 C 35.70 –, juris; Higher Administrative Court of Baden-Württemberg, judgments of 18 December 2003 – 1 S 2211/02 – VBIBW 2004, 214, before 14 April 2005 – 1 S 2362/04 – VBIBW 2005, 431 and of 14 December 2010 – 1 S 338/10 – , juris para. 17).
b. Due to the lack of regulatory effect, the making of film recordings, which the plaintiff also challenges, cannot be classified as an administrative act. The determination of the illegality of such factual acts can be effected admissibly by means of a declaratory action pursuant to Section 43 of the Code of Administrative Court Procedure (VwGO) (Administrative Court of Baden-Württemberg, Judgment of January 26, 1998 – 1 S 3280/96 –, juris para. 22).
The plaintiff may also invoke a legitimate interest in a declaratory judgment pursuant to Section 113 Paragraph 1 Sentence 4 of the Administrative Court Procedure Act (VwGO) or Section 43 Paragraph 1 VwGO. Any legitimate interest of a legal, economic, or non-material nature that is recognized in the circumstances of the case suffices as a legitimate interest in a declaratory judgment (Federal Administrative Court, Judgment of February 9, 1967 – 1 C 49.64 –, BVerwGE 26, 161 <168>; Federal Administrative Court, Judgment of May 16, 2013 – 8 C 14.12 –, juris Rn. 20). Such a risk exists, among other things, when there is a risk of repetition, i.e., when it can be expected that the same plaintiff will be confronted with a similar measure again within a foreseeable timeframe because the legal and factual circumstances remain essentially unchanged (Federal Administrative Court, Judgment of October 12, 2006 – 4 C 12.04 –, juris para. 8; Federal Administrative Court, Judgment of May 16, 2013 – 8 C 14.12 –, juris paras. 20 et seq.). This must be assumed to be the case with the plaintiff here, because he is a member of the organization "Demobeobachtring Südwest" (Demonstration Observation Network Southwest) and, according to his own statements, regularly observes and documents demonstrations in his free time, without the defendant raising any doubts about this account or any such doubts being apparent to the court. Therefore, it is sufficiently probable that the plaintiff will continue to observe demonstrations and be subject to corresponding police measures in the future.
Furthermore, a legitimate interest in a declaratory judgment or a declaratory judgment exists even when fundamental rights infringements are at issue that, due to their typically short-term resolution, would otherwise not be subject to judicial review in main proceedings (see, among others: Federal Administrative Court, Judgment of May 16, 2013 – 8 C 14.12 –, juris para. 31; Federal Constitutional Court, Decision of December 5, 2001 – 2 BvR 527/99 –, BVerfGE 104, 220 <232 f.>). This is recognized in the case of police measures in connection with assemblies (see Federal Constitutional Court, Decision of March 3, 2004 – 1 BvR 461/03 –, BVerfGE 110, 77). The fact that the plaintiff was merely an observer of a demonstration and did not participate himself, and that the relevant measures were only taken after the assembly leader had declared the assembly over, so that Article 8 Paragraph 1 of the Basic Law may not have been affected at all, does not preclude this conclusion. In any case, the plaintiff's fundamental right to informational self-determination, which was affected by the measures, is another fundamental right of considerable weight (Federal Constitutional Court, Chamber Decision of March 24, 2015 – 1 BvR 2501/13 –, juris para. 12).
2. The action is admissible regardless of compliance with any time limit for filing. The police action in question dates from May 25, 2019, and the action from April 25, 2020. In police law, no time limit applies to purely declaratory actions. The same applies to actions for a declaratory judgment regarding the continuation of administrative acts that have become moot before the action is filed and before the act becomes legally binding (see Federal Administrative Court, judgment of July 14, 1999 – 6 C 7.98 –, BVerwGE 109, 203 <206 ff.>; Higher Administrative Court of Baden-Württemberg, judgments of August 19, 2010 – 1 S 2266/09 –, DVBl 2010, 1569 with further references and of December 14, 2010 – 1 S 338/10 –, juris para. 19), as is the case here. Moreover, the action would in any case have been brought within the one-year period stipulated in Section 58 Paragraph 2 Sentence 1 of the Administrative Court Procedure Act (VwGO), which would have been applicable here in the case of a time limit due to the lack of instructions on legal remedies.
3. The plaintiff also has a legitimate interest in legal protection. In particular, the defendant's objection that the plaintiff is acting inconsistently because he first failed to avert the police measures and then seeks a declaration that these measures were unlawful does not preclude this.
A request for legal protection is only admissible to the courts if there is a legitimate interest in such protection (Federal Constitutional Court, decision of October 19, 1982 – 1 BvL. 34/80 –, BVerfGE 61, 126 <135>). In principle, the written provisions of the respective procedural rules define when a request for legal protection is admissible to the courts. It follows that their existence indicates the existence of a legitimate interest in legal protection (Federal Administrative Court, judgment of January 17, 1989 – 9 C 44.87 –, BVerwGE 81, 164 <165>).
Nevertheless, in exceptional individual cases, despite the existence of these prerequisites, a request for judicial protection may be inadvisable because recourse to the courts proves unnecessary or an abuse of rights; that is, the courts are being used even though there is no need for legal protection. Various categories of cases have become established in case law in this regard (von Albedyll, in: Bader/Funke-Kaiser/Stuhlfauth/von Albedyll, VwGO, before §§ 40 ff., para. 24 ff.). The terminology used is sometimes inconsistent, and the argument is based on "self-contradictory behavior" (see, for example, Rennert, in: Eyermann, VwGO, before §§ 40 ff., para. 22; considered by the Federal Administrative Court, judgment of August 18, 1977 – 5 C 8.77 – juris para. 10, for the challenge of an administrative act to which the plaintiff had previously agreed; Higher Administrative Court of Mecklenburg-Western Pomerania, decision of September 7, 2010 – 1 M 210/09, juris para. 46, for a case in which the objective of the action [allocation of university places] was probably already achieved without and before a court decision). Similarly, there are situations in which the person seeking legal protection can achieve their goal more quickly, easily and effectively without resorting to the courts (von Albedyll, in: Bader/Funke-Kaiser/Stuhlfauth/von Albedyll, VwGO, before §§ 40 ff. Rn. 24 ff.).
However, such a case does not exist here with regard to the identification procedures. The plaintiff's legal objective is precisely to be able to observe the events following the dispersed assembly without having his personal details recorded or having to endure any other police measures. This would not have been possible even with more cooperative behavior on the day of the assembly, because even then the officers were only willing to refrain from further action on the condition that he provide his personal details. The plaintiff considers even this unlawful. Accordingly, the plaintiff had no way to prevent the police measure of identity verification that is being challenged here. The accusation that he is behaving inconsistently is therefore unfounded.
The plaintiff also has standing to sue for a declaratory judgment that the search and the taking of photographs were unlawful, even though he would not have been subjected to these measures had he voluntarily disclosed his personal details. Article 19, paragraph 4 of the Basic Law (GG) grants everyone the right to legal recourse in the event of a potential violation of their rights by public authorities. Accordingly, particular restraint must be exercised when affirming unwritten admissibility requirements that would preclude legal recourse. This applies especially to the assumption of self-contradictory conduct (Rennert, in: Eyermann, VwGO before § 40, marginal note 22). For such conduct to lead to the loss of standing, the implied intention of the affected party to act in this manner and not otherwise, despite any potential disadvantages, must be expressed with sufficient clarity, consistency, and unambiguity. This might possibly be the case, according to the foregoing, if the corresponding intention has been expressed for a sufficiently long time or repeatedly (as in the case of the Federal Administrative Court, judgment of August 18, 1977 – 5 C 8.77 –, juris para. 10) or possibly also if it is formally and unambiguously expressed (as, for example, in the example by Rennert, in: Eyermann, VwGO, before § 40 para. 22 – the formal neighbor's consent to the building application pursuant to § 55 para. 1 sentence 2 no. 1 LBO). However, such a clear intention, precluding legal recourse, cannot be inferred from the informal, spontaneous decision made here in an urgent situation.
III. The action is also justified because the actions of the police officers were unlawful and violated the plaintiff's subjective rights, § 113 para. 1 sentence 4 VwGO.
1. Police procedures must be measured against the Police Act for the State of Baden-Württemberg in the version valid until January 16, 2021.
With the law of July 6, 2020, which entered into force on January 17, 2021, the state legislature amended the Police Act. Accordingly, the legal situation between the administrative decision and the court's decision has changed. Which legal situation is applicable in such cases is generally determined by substantive law (Federal Administrative Court, judgment of February 23, 2011 – 8 C 51.09 –, juris para. 20). For appeals and declaratory judgments in the law of public safety – as in the present case – the relevant point in time is that of the initial order. Therefore, the decisive factor is the legal situation at the time of the police coercive measures (VGH Baden-Württemberg, judgment of 13.02.2018 – 1 S 1468/17 -, beck-online para. 29 and judgment of 30.03.1992 – 1 S 1266/91 -, juris para. 14 (last administrative decision); OVG Mecklenburg-Vorpommern, judgment of 25.11.2015 – 3 L 146/13 -, beck-online para. 41).
2. The legal basis for police action is that of general police law, not assembly law. While assembly law comprehensively regulates police powers within its scope, meaning that recourse to the provisions of general police law is generally not possible (so-called "police-proof nature of the assembly"; see Federal Constitutional Court, Chamber Decision of October 26, 2004 – 1 BvR 1726/01 –, juris para. 18; Federal Administrative Court, Judgment of April 21, 1989 – 7 C 50.88 –, BVerwGE 82, 34 <38>; Higher Administrative Court of Baden-Württemberg, Judgment of January 26, 1998 – 1 S 3280/96 –, DVBl 1998, p. 837 <839>).
However, this priority of the right of assembly only applies in temporal terms until the end of the assembly. It therefore ends, at the very least, with the end of the assembly for the person affected (Hettich, Assembly Law in Practice, 2nd ed., para. 45; cf. for dissolution of the assembly or exclusion of a participant: Federal Constitutional Court, Chamber decisions of 26 October 2004 – 1 BvR 1726/01 –, BVerfGK 4, 154 <159> and of 10 December 2010 – 1 BvR 1402/06 –, juris para. 28).
Therefore, the right of assembly does not apply here for temporal reasons alone, because the assembly had already ended and the running group of people, lacking any expression of opinion, cannot be considered a new assembly. Instead, general police law applies. Thus, it is irrelevant whether the same result would be achieved if the plaintiff had not participated in the assembly but had only been present as an observer.
3. The measures in dispute were unlawful. While the deployment of the police service is formally unobjectionable (a.), the substantive elements of the offense were not present for establishing the plaintiff's identity (b.), nor for searching him (c.) and his backpack (d.), nor for creating the data material (e.).
a. The measures were formally lawful. The competent authority, the police enforcement service, acted in accordance with Section 60, Paragraphs 2 and 3 of the Police Act (old version). A hearing was unnecessary here, at least pursuant to Section 28, Paragraph 2, No. 1 of the Administrative Procedure Act of the State of Lower Saxony (LVwVfG), insofar as the challenged measures are to be classified as administrative acts.
b. The determination of the plaintiff's personal details was unlawful. Although the court assumes that a danger to public safety existed at the relevant time of the measures, the plaintiff was not a disturber within the meaning of Sections 6 et seq. of the Police Act.
According to Section 26 Paragraph 1 No. 1 of the Police Act (PolG aF), the police may establish a person's identity in order to avert a danger to public safety or order in specific cases, or to eliminate a disturbance of public safety or order. The concept of public safety encompasses the inviolability of the legal order, the integrity of the individual's subjective rights and legal interests, and the existence and functioning of the state and its institutions (see, among others, Federal Administrative Court, Judgment of March 28, 2012 – 6 C 12.11 –, beck-online, para. 23). Furthermore, taking action requires a concrete danger at the time of the measure (Administrative Court of Baden-Württemberg, Decision of March 10, 2015 – 1 S 1225/14 –, unpublished, p. 5). Such a danger exists if a specific individual set of facts, if allowed to unfold unhindered, would with sufficient probability lead to damage to the protected interests of public safety and order. The occurrence of damage need not be certain. On the other hand, the mere possibility of damage occurring is insufficient. The required degree of probability depends instead on the importance of the legal interest to be infringed, the importance of the interest protected by the police, and the severity of the threatened damage (see Federal Administrative Court, Judgment of July 3, 2002 – 6 CN 8.01 –, juris para. 41; Higher Administrative Court of Baden-Württemberg, Judgment of August 19, 2010 – 1 S 2266/09 –, juris para. 28; Würtenberger/Heckmann/Tanneberger, Police Law in Baden-Württemberg, 7th ed., 2017, p. 215).
aa. Measured against this, there was a danger to public safety at the relevant time because facts sufficiently supported the assumption that, if the events had proceeded unhindered, the individual rights, in particular the health and property of passers-by in and around the Königsbau, might have been threatened by a running group of former demonstrators.
According to the court, the actual sequence of events unfolded as follows: after the demonstration ended at Stauffenbergplatz, a large group of masked young men ran from the Stauffenbergplatz/Schlossplatz area towards the Königsbau (King's Building), entered the shopping arcade there through the south entrance (corner of Kleiner Schlossplatz), and exited through the north entrance (Bolzstraße). The group then ran uphill along Bolzstraße towards Stephanstraße, continuing along Thouretstraße and Lautenschlagerstraße before dispersing. At least some members of the group later reconvened under the arcades on the north side of the Königsbau at the corner of Bolzstraße and Königsstraße, where a number of passersby were also present at that time.
The Chamber's conviction regarding this actual course of events is based on the content of the submitted files, in particular the descriptions in the protocol list regarding the police operation, the video file "01. Run to Königsbau.mp4" examined during the oral proceedings, and the testimony of witness xxx.
The police report states under No. 66 "4:30 p.m., group of 20 masked people runs towards Königsbau", under No. 68 "4:32 p.m., group leaves Königsbau via Bolz-, Stefanstraße" and under No. 69 "At the level of the "Notebook" store on Lautenschlagerstraße, the group split up in different directions; some are back in Königsbau".
The video "01. Run to the Königsbau.mp4" shows several participants of the preceding assembly running from Schlossplatz towards the Königsbau. The camera work also reveals that the plaintiff in the parallel proceedings 5 K 2034/20, who filmed the video, is also running along this route. Furthermore, he verbally describes the events as follows (from 00:00): "A group of twenty people allegedly masked themselves and went into the Königsbau, and the police are now raiding it." The running group is not visible. However, based on the above, the video conveys a dynamic situation and the "following" of numerous people associated with the preceding assembly, without any explanation or indication of what the origin of this dynamic and the shift in activity from Stauffenbergplatz to the Königsbau could have been, other than the running group of masked young men.
Witness xxx stated during the oral proceedings that he had been informed by radio by the emergency services that a group of young men had covered the lower half of their faces with neck gaiters and were running in the direction of the Königsbau. Initially, the number was reported to be between 20 and 40, later corrected to 20 young men. The court has no doubts about the credibility of the witness's testimony. In particular, it is completely consistent with the other available information.
To the extent that the plaintiff denies "for lack of knowledge" that anyone was running and anyone was masked, this is insufficient to cast sufficient doubt on the aforementioned events. Pursuant to Section 108 Paragraph 1 of the Code of Administrative Court Procedure (VwGO), the court decides according to its free conviction, derived from the overall outcome of the proceedings. This refers to a degree of certainty that silences any serious doubts. If the court considers the existence of the disputed facts merely "probable," this is insufficient (Federal Administrative Court, Judgment of November 11, 1986 – 9 C 316.85 –, juris). It is fundamentally the court's responsibility to establish this degree of conviction through its own investigation of the facts; the parties must be involved in this process, Section 86 Paragraph 1 Sentence 1 VwGO, "principle of official investigation." An important source for the court's investigation of the facts, even in administrative court proceedings, is the submissions of the parties.
The Administrative Court Procedure Act (VwGO) does not contain explicit guidelines for the judicial use of this submission. Despite the comprehensive references in Sections 98 and 173 of the VwGO, the rules of civil procedure cannot be adopted without further consideration, where undisputed submissions are deemed admitted (Section 138 Paragraph 3 of the Code of Civil Procedure (ZPO)) and a fact can be denied for lack of knowledge if it concerns neither the party's own actions nor their own perceptions (Section 138 Paragraph 4 ZPO) (Hensel, NVwZ 2020, 1628, 1632). Instead, the use of party submissions and the contents of the file is less schematic than in civil proceedings, based on the premise that evidence and investigative findings from the files are to be used as admissible and suitable means of establishing the facts. It is therefore not a violation of the principle of official investigation if the court adopts a party's seemingly convincing submissions without further examination, provided they are not conclusively challenged by other submissions from the party (Stuhlfauth, in: Bader/Funke-Kaiser/Stuhlfauth/von Albedyll, VwGO, § 86 Rn. 13; Hensel, NVWZ 2020, 1628, 1632).
Such a challenge can, in principle, also be made by denying it for lack of knowledge. While Section 138 Paragraph 4 of the German Code of Civil Procedure (ZPO) does not apply in administrative proceedings due to the court's duty to investigate the facts ex officio pursuant to Section 86 Paragraph 1 of the German Administrative Court Procedure Act (VwGO) (Federal Administrative Court, Judgment of August 2, 2001 – 7 C 2.01 –, juris and Decision of March 6, 2003 – 6 BN 9.02 –, GewArch 2003, 262), this does not mean that denying an opposing party's assertion "for lack of knowledge" in administrative proceedings is irrelevant or only relevant if combined with a motion to present evidence to the contrary. Particularly when factual circumstances from the opposing party's sphere are at issue, a party can demand, even in administrative proceedings, that the court not base its decision solely on the opposing party's presentation at the hearing without conducting its own review. In such cases, the party concerned is unable to make a specific assertion to the contrary or to offer evidence for the contrary due to a lack of personal knowledge (Federal Administrative Court, decision of 02.11.2007 – 3 B 58.07 –, juris para. 6).
However, in administrative court proceedings, the general procedural principle applies, particularly when a party denies knowledge of a matter, that the more detailed the opposing party's explanation of a circumstance, the more concrete and substantiated the plaintiff's submissions must be (Higher Administrative Court of Lower Saxony, decision of March 21, 2018 – 1 LA 77/17-, juris para. 69; Hensel, NVwZ 2020, 1628, 1632). Accordingly, the administrative court can require the plaintiff to substantiate their denial of knowledge, i.e., to provide reasons for their doubts. A blanket denial of knowledge is insufficient, especially in cases of extensive submissions based on multiple sources (Federal Administrative Court, decision of November 2, 2007 – 3 B 58.07, juris para. 6).
In light of this, the court was justified in assuming, despite the plaintiff's "denial for lack of knowledge," that approximately twenty young men, masked, had walked the aforementioned route. The case files, the reviewed video files, and the testimony of witness xxx are consistent in this regard. The plaintiff failed to substantiate his doubts expressed through his denial. Consequently, there was no reason for further investigation of the facts on this point.
The plaintiff's motion for the taking of evidence on this point was also denied. The plaintiff submitted this motion as a subsidiary measure in the event of his losing the case. While such a conditional motion for the taking of evidence is admissible, an obligation for the court to issue a decision in the form prescribed by Section 86 Paragraph 2 of the Code of Administrative Court Procedure (VwGO) and to take evidence arises from it—assuming the motion is otherwise admissible—only if the condition under which the motion was made has actually been met (Federal Administrative Court, Judgment of June 26, 1968 – VC 111.67 –; BVerwGE 30, 57). This is not the case here.
The defendant's motion to admit evidence was also dismissed. This motion was made in the event that the court concludes that the surrounded group was not the same one that had previously walked masked through the Königsbau. Such a finding is unnecessary here. Based on the foregoing, the court assumes that at least some members of the group were among those surrounded. It considers this finding sufficient to establish a danger relevant under police law. Accordingly, the fact presented as evidence was irrelevant to the court's decision.
The court further concluded that the shopping arcade in question was quite crowded at the time. This conclusion is based on the police report, the accounts of those involved in the oral proceedings, and the impression gained from the video file "01. Lauf zum Königsbau.mp4" (from 00:50 onwards), which was examined during the oral proceedings, as well as the external circumstances of the incident, such as the arcade's central location in Stuttgart's city center, the time of the incident on a Saturday afternoon around 4:30 p.m., and the meteorological conditions of a recent rain shower.
The danger that the police had to avert consisted of the fact that a group of approximately 20 young men, running (again) in concert through a crowded shopping arcade, posed a sufficiently high probability of causing harm to the legal rights of passersby in that arcade. Specifically, it could not be reliably prevented that passersby would be bumped or forced to dodge, resulting in falls, injuries, or damage to their property, such as clothing, bags, backpacks, and the items they contained. Since the court was convinced that such a race by masked individuals had already occurred previously, the police were entitled to counteract a recurrence of this behavior through appropriate measures to avert the danger. Given the high-ranking legal rights of health and property of the passersby in the shopping center, even a low probability of occurrence was sufficient in this respect, as explained above.
Furthermore, it can be assumed with sufficient probability, at least for the purposes of public safety law, that the running group also endangered the rights and interests of the shopping center operators in ensuring an undisturbed and pleasant shopping experience, as expressed in the Königsbaupassagen's house rules. According to section 10 of these rules, among other things, "obstructing and harassing individual visitors" is prohibited. Finally, police action was also warranted here because, based on the outward appearance of the events—the gathering and coordinated actions of an emotionally charged, masked group of young men following the shared experience of a joint demonstration—the officers were entitled and obligated to prevent the group from posing further dangers to other legally protected interests.
bb. Although police measures were generally initiated and legally permissible within the limits of the respective specific authorization provision, the determination of the plaintiff's identity was nevertheless unlawful because he was not a suitable addressee of the measure, i.e., not a disturber within the meaning of Sections 6 et seq. of the Police Act.
According to Section 6 Paragraph 1 of the Police Act (PolIG aF), the police must take action against the person who caused the threat or disturbance. The court shares the concurring assessment of the parties involved that the plaintiff was not himself part of the group walking through the Königsbau. From an ex post perspective, therefore, the plaintiff posed no threat to public safety.
The plaintiff could also not be held liable as an apparent perpetrator. Such a person is defined as someone whose conduct—regardless of whether they actually (co-)caused the danger being combated by the measure—was likely to create the impression of a danger in the eyes of a capable, level-headed, and knowledgeable police officer (Administrative Court of Baden-Württemberg, judgments of December 14, 2010 – 1 S 338/10 –, juris para. 24 and of March 17, 2011 = 1 S 2513/10 –, juris para. 25; Bavarian Administrative Court, judgment of July 26, 1995 – 22 B 93.271 –, juris para. 9). Such an appearance of liability can arise, in particular, if the person concerned is encountered in a complex situation, especially in cases of dangers to public safety and order emanating from a group, in direct temporal and spatial proximity to such a danger (Administrative Court of Baden-Württemberg, Judgment of December 14, 2010 – 1 S 338/10 –, juris para. 24; Administrative Court of Karlsruhe, Judgment of May 8, 2014 – 2 K 1318/13 –, unpublished, p. 8). It should be noted that, for reasons of the rule of law, restraint is required when affirming the status of an apparent perpetrator. As a general rule, persons may only be held liable as perpetrators of an action or condition, §§ 6, 7 of the Police Act (old version), i.e., when dangers to protected interests demonstrably emanate from them or objects attributable to them. A broadening of these elements of the offense to the detriment of the person subject to police duties may be necessary for reasons of effective danger prevention, § 1 para. 1 PolG aF. However, it must find its limit where there is a lack of sufficiently established factual circumstances justifying police intervention.
This is the case here, as sufficiently established factual circumstances justifying police intervention did not arise from the plaintiff's alleged association with the running group (aaa.), nor from the plaintiff's following the running group and remaining near them when the police arrived (bbb.), nor from the plaintiff's behavior after being surrounded (ccc.), nor from the previous order to leave the area issued to a demonstration observer (ddd.). Even a combined assessment of these circumstances was insufficient to establish the plaintiff's status as a public nuisance from the perspective at the time (eee.).
aaa. The plaintiff's status as a disturber of the peace did not arise ex ante from the assumption that he had abandoned his observer role and "shown solidarity" with or supported the group, as the defendant argues: There was a lack of sufficient factual evidence for such an assumption. Insofar as the defendant's representative, according to his statements in the oral proceedings, saw support in the mere fact that the plaintiff stood with the surrounded group, the court cannot agree. The standard for any police measure is the effectiveness of averting danger. "Support" of the disturber could therefore only be assumed if, ex ante, it could be assumed with sufficient certainty that the supporting action promoted the endangerment of public safety and order (similarly for the comparable problem of aiding and abetting in criminal law: Heine/Weißer, in: Schönke/Schröder, StGB, § 27 Rn. 2 with further references).
This cannot be assumed because the plaintiff avoided any appearance of support, both outwardly and through his actions. His appearance, due to his age, long gray hair, and gray beard, does not fit into a group of "young Kurds," and moreover, his high-visibility vest consistently identified him as not belonging to the group.
Furthermore, the plaintiff positioned himself at the edge of the kettle, standing against the wall of the building, and neither the defendant's statements nor the video footage examined provide any actual evidence of the plaintiff's association with the group, such as a conversation, gestures of understanding, or the like. As far as can be seen, the plaintiff's behavior neither attributably aroused a feeling of support among the group members nor did he—as far as can be seen—even create the appearance of supporting the group.
The defendant's argument that the police investigation was necessary to prevent the plaintiff from removing prohibited items from the cordoned-off area does not alter this conclusion. While this possibility may have existed in purely abstract terms, the submissions of the parties and the documents submitted to the court provide no evidence of it beyond the plaintiff's proximity to the group. The plaintiff himself stated that he was unknown to the police. He was clearly identifiable as an observer of the assembly and was present as such throughout the entire assembly. There is no indication that he abandoned this neutral role. The mere possibility of unlawful conduct by the plaintiff, without further evidence that such conduct actually occurred or would occur, was insufficient to justify preventive police measures (Federal Constitutional Court, Chamber Decision of July 24, 2015 – 1 BvR 2501/13 –, juris Headnote 4 and para. 15).
There is no further evidence of support for the group. In this specific case, such evidence was not superfluous simply because the responsible police commander must be able to order appropriate measures, if necessary, even without personal observation, based on a summary assessment of the reported situation. In the Chamber's view, this police privilege for effective threat prevention reaches its limit where uninvolved parties are clearly affected by police measures, there are no sufficient factual circumstances indicating that these measures also cause disruption, and further clarification of the facts is possible, taking into account the specific circumstances of the individual case. This was the case here because the situation had calmed down again following the encirclement, and instead of a short-term reaction to a dynamic situation, a decision had to be made under less time pressure, thus allowing, among other things, the opportunity to further clarify the facts.
bbb. The specific circumstances of the plaintiff's encounter during the encirclement also failed to provide sufficient grounds to establish his status as a disruptor. The defendant's representative stated in the oral proceedings, among other things, that no special rights exist for demonstration observers. The plaintiff's classification as a disruptor was evident from the fact that he was found in close proximity to members of the previously masked group of young Kurds, that he had voluntarily sought this proximity, and that he had not distanced himself from these individuals, even though the encirclement could have been observed from the side.
In the opinion of the Chamber, this behavior did not provide sufficient factual evidence to give a capable, level-headed and knowledgeable police officer the impression that the plaintiff had caused a danger relevant under police law.
There can be a legitimate interest in observing and reporting on police conduct, which in principle also covers criticism of the police and is protected under constitutional law by the fundamental rights afforded to demonstration observers regardless of their specific role, in particular Article 2 Paragraph 1 of the Basic Law in conjunction with Article 1 Paragraph 1, Article 2 Paragraph 1, and Article 5 Paragraph 1 Sentence 1 of the Basic Law (Federal Constitutional Court, Chamber Decision of July 24, 2015 – 1 BvR 2501/13 –, juris). This right is limited where police work is specifically obstructed.
This was consistent with the police command's instruction to officers prior to the start of the assembly to allow demonstration observers to remain as long as and to the extent that they did not obstruct police activity. If police activity is subsequently hampered by uninvolved individuals, appropriate preventative measures can be taken against them as disruptors. The extent and scope of the necessary facts depend primarily on the specific circumstances of the individual case and the general principle of public safety law, according to which police measures are more likely to be legally permissible, and thus the fewer factual circumstances the police need to ascertain before applying preventive measures, the more urgent the danger to be averted and the more valuable the protected legal interests are (Federal Administrative Court, Judgment of July 3, 2002 – 6 CN 8.01 –, juris para. 41; Higher Administrative Court of Baden-Württemberg, Judgment of August 19, 2010 – 1 S 2266/09 –, juris para. 28; Würtenberger/Heckmann/Tanneberger, Police Law in Baden-Württemberg, 7th ed. 2017, p. 215).
Measured against this standard, the mere fact of encountering the situation in the present case is insufficient as factual evidence for police intervention, even considering that the plaintiff himself sought proximity to the police action. In this respect, it must be noted that, in the court's opinion, while the plaintiff did follow the running group (see above), he by no means "deliberately entered the fray." Rather, he followed the events until, at the northeast side of the Königsbau (corner of Schlossstraße), he became aware that "the situation appeared to have calmed down." The video footage initially shows a police presence on Bolzstraße that was also perceptible to the plaintiff. Upon arriving at the corner of Schlossstraße, he then became aware of the officers waiting there (regarding the above: the plaintiff's video in case 5 K 2034/20, 1st run to the Königsbau, from 02:00). Only when the plaintiff turned around and walked parallel to Bolzstraße again towards the north exit of the shopping arcade did the kettle close (video of the plaintiff in the parallel proceedings 5 K 2034/20, 02.Königsbau kettle, from 00:00).
The court found that the plaintiff had indeed "distanced himself" from the group, as demanded by the defendant's representative in such a situation. To the extent possible and reasonable, the plaintiff consistently distanced himself from the potential troublemakers. According to the video footage (defendant's video file 00011 + timecode from minute 00:25), he remained almost continuously at the edge of the surrounded group with his back to the building and was clearly identifiable by his vest as a demonstration observer and thus as a third party not belonging to the group. Furthermore, he distanced himself from the group by repeatedly requesting to be released from the cordon. Insofar as the defendant also demanded that the plaintiff provide his personal details before his release, this was not an act of distancing that could be demanded of the plaintiff, but rather a police measure in itself requiring justification.
Finally, prior to the police's intervention to avert danger, further fact-finding measures were necessary because the encirclement had resulted in a static situation. There was no longer any immediate threat to public safety and order, and further investigation into potentially dangerous facts was easily conducted with a high probability of success. The entire incident took place in daylight. A relatively small group of approximately 35 people was encircled. The situation was therefore manageable and calm at the crucial moment of the police action. Furthermore, the overall impression from the video footage and the evident ratio of police officers to those encircled do not suggest that the police had lost control of the situation.
Furthermore, a member of the Southwest Demonstration Observation Group had, in advance, provided the police with a name and telephone number, thus enabling direct telephone contact at any time. It is precisely the stated and legally unobjectionable goal of demonstration observers to perceive and document the events surrounding a gathering. This requires a certain spatial proximity to the events, which is sometimes deliberately established by those involved. However, in the present static situation, no longer posing an immediate threat, this proximity alone, without any further factual indications, is insufficient to create the impression in the mind of a competent, level-headed, and knowledgeable police officer that the plaintiff had caused a legally relevant danger.
After all this, the specific situation of encountering a group of troublemakers in the immediate vicinity was not sufficient as an indication of a danger requiring police intervention, without this result being generalized for demonstration observers without regard to the specific circumstances of other encounter and danger situations (cf., for example, the completely different circumstances in the decision of the Administrative Court of Karlsruhe, loc. cit. p. 3 [darkness, 570 persons, imminent danger to life and limb from projectiles and pyrotechnics]).
ccc. Sufficient facts for establishing the status of an apparent nuisance do not arise from the plaintiff's conduct after being surrounded. Insofar as the plaintiff did not provide his personal details in order to be released from the encirclement beforehand, the establishment of his identity is precisely the official act challenged here and thus the state measure that must be justified by the existence of other facts. The failure to voluntarily perform this act is not sufficient as a fact establishing a danger.
The group's subsequent report on the police operation also fails to establish such suspicion. It is unsuitable for this purpose, even from a purely temporal perspective, because sufficient suspicion must exist at the time the police action was taken (so). Subsequent circumstances can therefore strengthen such suspicion, but not establish it on their own. Insofar as the defendant finds the assembly report lacking in "a neutral observer's stance," it is irrelevant whether this assessment is substantively justified, because despite its overall rather critical tone towards the police ("no anti-aggression team," "police did not seem interested in de-escalation"), the report at least lists violations that were penalized by the police (side banners not carried at the proper distance; head banners) and indirectly states that, according to the police, prohibited slogans were "shouted.".
To substantiate the existing indications with sufficient legal standing under police law, statements expressing a different, personal or substantive solidarity with the demonstrators would have been necessary. The mere fact that an observer of the assembly, explicitly and in advance announced as such, holds a critical stance towards the police is not sufficient to justify the assumption that he will commit punishable acts by assisting the demonstrators in evading police measures. The mere possibility of unlawful conduct by the plaintiff, without further evidence that such conduct has actually occurred or will occur, is insufficient to justify the preventive police measure taken here (Federal Constitutional Court, Chamber Decision of July 24, 2015 – 111/R 2501/13, juris, Headnote 4 and para. 15).
Regarding the documented order to leave the premises, the parties dispute whether such an order was formally issued and whether it was addressed to the plaintiff or to an unknown third party. In the Chamber's view, these facts are irrelevant because they were not decisive for the outcome of the case.
The court notes in this regard that, regardless of whether the order to leave the premises was issued to a demonstration observer from "Demobeobachtung Südwest" (Demonstration Observation Southwest) or to a third party identified by the officers as a "demonstration observer" in a legally unobjectionable manner, the person who, as a demonstration observer, places themselves in the vicinity of a danger that the police are required to avert bears the "risk of being misled." This refers to the risk of being wrongly considered a troublemaker ex post, even though the police assessment ex ante was legally unobjectionable (Administrative Court of Baden-Württemberg, decision of January 10, 2015 - 1 S 1225/14 -, unpublished, p. 8).
While a person is only liable under police law if they themselves are at least an apparent perpetrator, meaning there are sufficient indications that they have caused a danger relevant to police law, such indications can also arise from the actions of third parties if those actions are capable of establishing the perpetrator's status as a perpetrator. This applies if either a clear personal attribution of the action to the perpetrator is not possible and the person in question can be considered a perpetrator with sufficient certainty, or if the person in question has such a close relationship to the third party or the danger that the disturbances caused by the third party can be interpreted as indicating dangers posed by the person in question. The risk of error in this regard is borne, at least, by anyone who knowingly places themselves in the vicinity of a danger relevant to police law. The risk of deception therefore includes not only the incorrect classification of an observer as belonging to the group of disturbances, but also the incorrect classification of actual indications of the disturbance, caused by third parties, insofar as the police ex ante prognosis is not legally objectionable for other reasons.
Regardless of whether the order to leave the premises was issued to the plaintiff or a third party, the order did not make the plaintiff a perpetrator with regard to the dangers averted by the measures at issue here. A police measure is not lawful simply because it is directed against a perpetrator and a danger exists that meets the specific criteria of the police law, but only if this very danger is at least also threatened by this perpetrator, i.e., if the person targeted was also a perpetrator with regard to the specific danger to be averted. For this to be the case, it is necessary that, according to the aforementioned criteria, the perpetrator, through the presumptive status of a perpetrator, poses at least a sufficiently high probability not only of any protected legal interest, but specifically of the protected legal interest of the specific police measure taken to avert the danger. This is lacking here.
If effective hazard prevention is hindered by uninvolved parties, these individuals interfere with police work and can therefore be the target of police measures. However, the interference initially relates only to police activity. It can thus be countered with police measures aimed at protecting the effectiveness of police work, such as issuing a dispersal order, as was done here.
While the order to leave the area was intended to ensure the undisturbed execution of identity checks following the demonstration and thus served to safeguard the effectiveness of police work, the measures at issue here (establishing personal details, searching the person and their backpack, taking photographs) were aimed at averting dangers to the health and property of passersby in the Königsbaupassage. These are two distinct protected interests. There is no connection of such a nature and magnitude between them and the measures taken to avert danger that the disruption of police work following the demonstration would also establish the status of a disruptor with regard to the measures taken after the police cordon. An obstruction of police work cannot automatically lead to the conclusion that the person in question is also an (apparent) disruptor in connection with the danger actually being combated by the police. Rather, further evidence is required, which was not present at the relevant time—the plaintiff's cordon and his request to leave the cordon without providing his personal details.
This follows from the fact that, among the possible motives for the order to leave the premises, there was absolutely no evidence to suggest that the individual in question would be walking through the Königsbau shopping center masked and with a larger group. The protected legal interest of the potential order to leave the premises was not the health and property of the shoppers, but rather the proper functioning of police work. Furthermore, even according to the defendant's own statements, the obstruction of police work averted by the order to leave the premises was not of such a nature or severity that—even considering the discretionary power necessarily afforded to the police in such a situation—it could have been concluded that the individual in question posed a further threat to the legal rights of third parties. This is evident from the fact that the defendant's officers did not consider themselves obligated to record the personal details of the individual causing the disturbance, nor to document the specific circumstances of the order to leave the premises in their incident report, without any explanation or other indication that this would have been impossible in the specific situation of the order to leave the premises. Rather, the precise circumstances of the expulsion could only be determined approximately, even in the court proceedings.
eee. Even considering all the aforementioned circumstances, there are no sufficient factual indications to consider the plaintiff as an apparent perpetrator. According to the foregoing, neither the removal of a demonstration observer nor the suspicion of supporting members of the disruptive group was based on factual indications that would have suggested a danger to the legal rights of passersby in and around the Königsbau from the plaintiff. Accordingly, they were insufficient to underscore the situation of encounter, the remaining factual indication, to such an extent that, while the plaintiff's presence in the area alone could not be considered a disturbance, a legally permissible conclusion could be drawn, in conjunction with these other circumstances, that the plaintiff was causing a disturbance.
There was no evidence to support the plaintiff's classification as a disturber of the peace under Sections 7 and 9 of the former Police Act.
c. The search of the plaintiff was also unlawful. According to Section 29 Paragraph 1 of the Police Act (old version), the police may search a person, among other things, if there are grounds to believe that they are carrying items that may be seized or confiscated (No. 2). This is not the case here. It has neither been alleged nor is it otherwise apparent that the plaintiff himself originally carried such items. There is also insufficient evidence to suggest that he received such items from the participants of the preceding assembly, because the plaintiff, as far as can be ascertained, behaved neutrally at all times before, during, and after the assembly, as announced in advance, and there was also no sufficient evidence of his solidarity with the participants of the assembly at the relevant time of the police action (so).
d. The search of the plaintiff's backpack was also unlawful. According to Section 30 of the Police Act (PolIG) in its former version, the police may search an item, among other things, if it is being carried by a person who may be searched pursuant to Section 29 Paragraph 1 or 2 of the Police Act (PolG) in its former version (No. 1), or if there are facts justifying the assumption that it contains another item that may be seized (No. 3). As already explained, the search of the plaintiff was unlawful due to the lack of a sufficient danger under police law (see above III. 3. c.), so that, based on this, a search of his backpack was also not permissible, Section 30 No. 1 of the Police Act (PolG) in its former version. Furthermore, there was no sufficient evidence to suggest that the plaintiff's backpack contained items that could have been seized.
e. The taking of data material from the plaintiff—specifically, the film recordings of him and his identification after the police cordon—was also unlawful. The court points out that this ruling applies only to the aforementioned recordings and not to those of the march. The latter are not even the subject of this dispute.
aa. According to Section 36 of the Police Act (old version), the police may only carry out identification measures without the consent of the person concerned if an identity determination permissible under Section 26 (old version) cannot be reliably carried out in any other way (paragraph 1, no. 1) or if the identification measures are necessary for the preventive combating of crime because the person concerned is suspected of having committed a crime and the circumstances of the individual case justify the assumption that he or she will commit a crime in the future (paragraph 1, no. 2). Identification measures include, in particular, the taking of photographs, including video recordings (paragraph 2, no. 2).
These requirements are not met. The determination of the plaintiff's identity pursuant to Section 26 of the Police Act (old version) was already inadmissible (so). It is not apparent that it could not have been reliably carried out in another way. There were no sufficient facts to support the suspicion that the plaintiff had committed a criminal offense.
bb. According to Section 21 of the Police Act (PolG aF), the police service may, at or in connection with public events and gatherings that pose a particular risk of danger, make image and sound recordings of persons for the purpose of identifying and averting dangers (paragraph 1, sentence 1). Events and gatherings pose a particular risk of danger if, based on a current threat analysis, it can be assumed that events and gatherings of a comparable type and size are threatened by terrorist attacks (paragraph 1, sentence 2, no. 1) or if, based on experience, the nature and size of the events and gatherings could give rise to significant dangers to public safety (paragraph 1, sentence 2, no. 2).
Section 36 of the former Police Act (PolG aF) is not applicable here, even on the grounds of its content. The purpose of the provision is the overview-like filmic recording of the event of a gathering or assembly (cf. Stuttgart Administrative Court, decision of February 20, 2012 – 5 K 89/12 –, juris; Sigmaringen Administrative Court, judgment of October 20, 2020 – 14 K 7613/18 –, juris), not the videography of individual persons separated from the overall event for the purpose of establishing their personal details. This is covered by the aforementioned Section 36 of the former Police Act (PolG aF).
Moreover, the only remaining point of reference for the "event or gathering" required under Section 21 of the former Police Act (PolIG aF) could be the gathering of masked individuals running. However, according to the police themselves, this group had already dispersed. Furthermore, the plaintiff did not even appear to be part of this gathering. The preceding demonstration is also no longer a relevant factor for the police action. It had ended more than half an hour before the data was collected. Finally, the defendant has not argued that, and why, the demonstration or the subsequent spontaneous gathering constituted an event under Section 21 Paragraph 1 Sentence 2 of the former Police Act (PolG aF) such that, based on a current threat analysis, it could be assumed that events and gatherings of a comparable type and size were threatened by terrorist attacks, or that, based on experience, the nature and size of the event or gathering could pose significant risks to public safety.
4. The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
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