DECISION
In the administrative law case
xxx,
– Plaintiff –
– Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
State of Baden-Württemberg,
represented by the Stuttgart Police Headquarters – Personnel Department –, Hahnemannstraße 1, 70191 Stuttgart
– Defendant –
– Applicant –
Regarding the finding of illegality of police measures,
here: application for leave to appeal.
The 1st Senate of the Administrative Court of Baden-Württemberg, composed of the President of the Administrative Court xxx, the Presiding Judge of the Administrative Court xxx and the Judge of the Administrative Court xxx, has decided
on August 11, 2022
decided:
The defendant's application for leave to appeal against the judgment of the Stuttgart Administrative Court of 10 November 2021 – 5 K 2034/20 – is rejected.
The defendant shall bear the costs of the admission procedure.
The value in dispute for the admission procedure is set at EUR 5,000.
REASONS
The timely and substantiated application for leave to appeal, based on the grounds for appeal namely serious doubts as to the correctness of the judgment (§ 124 para. 2 no. 1 VwGO; I.), the fundamental importance of the legal matter (§ 124 para. 2 no. 3 VwGO; II.) and the divergence (§ 124 para. 2 no. 4 VwGO; III.), is unsuccessful.
I. For the reasons set forth by the defendant, there are no serious doubts as to the correctness of the contested judgment.
a) The demonstration of serious doubts within the meaning of Section 124 Paragraph 2 No. 1 of the Code of Administrative Court Procedure (VwGO) requires that a legal principle underlying the administrative court's decision or a finding of fact material to that decision be challenged with cogent counterarguments (Federal Constitutional Court, Decision of June 23, 2000 – 1 BvR 830/00 – VBlBW 2000, 392; Higher Administrative Court of Baden-Württemberg, Decision of May 3, 2011 – 10 S 354/11 – VBlBW 2011, 442). To this end, the challenged legal principles or findings of fact must be correctly identified – at least in their core (Higher Administrative Court of Baden-Württemberg, Decision of August 11, 1999 – 6 S 969/99 – juris). Secondly, cogent objections to these legal principles or findings of fact must be demonstrated, whereby the burden of proof in each individual case depends on the circumstances of the respective proceedings (Administrative Court of Baden-Württemberg, decision of August 11, 1999, loc. cit., and of February 27, 1998 – 7 S 216/98 – VBlBW 1998, 378 with further references), in particular on the scope and depth of reasoning of the administrative court's decision. The ground for appeal exists if a review of the presented arguments based on the case file reveals that serious doubts actually exist as to the correctness of the contested judgment.
If serious doubts are raised about the correctness of the judgment, particularly with regard to an assessment of facts or evidence, special requirements apply to the presentation of the grounds for appeal (see, in this regard, Lower Saxony Higher Administrative Court, Decision of January 18, 2001 – 4 L 2401/00 – juris). According to Section 108 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO), the court decides according to its free conviction, derived from the overall result of the proceedings. It is therefore the task of the court of first instance to form its conviction regarding the facts relevant to the decision based on the overall result of the proceedings and by means of a free evaluation of the evidence. How it forms its conviction, i.e., how it evaluates the facts and evidence before it, is subject to its discretion. Compliance with the resulting procedural obligations is not called into question simply because a party wishes to evaluate the available factual material differently or draw different conclusions from it than the court. The court's freedom is only exceeded if it either does not base its assessment of the facts and evidence on the overall outcome of the proceedings, but instead, according to its legal opinion, disregards relevant content of the file or assumes facts contrary to the file, or if the conclusions it draws violate the laws of logic (established case law, cf. inter alia BVerwG, decision of 17.05.2011 – 8 B 88.10 – juris and decision of 28.03.2012 – 8 B 76.11 – LKV 2012, 409).
Objections to the free judicial conviction, derived from the overall outcome of the proceedings, only call into question the correctness of the administrative court's decision if sound reasons are presented to demonstrate that the court's formation of its conviction is flawed. This might occur, for example, if the administrative court based its decision on an incorrect set of facts with regard to a decisive fact, or if the evaluation of evidence exhibits gaps or inconsistencies. The latter is particularly likely to be the case if there is a violation of statutory rules of evidence, principles of logic, or general rules of experience, if the facts are assumed to be contrary to the record, or if the evaluation of evidence is manifestly arbitrary and therefore irrelevant. The mere possibility of a different assessment of the outcome of an evidentiary hearing is not sufficient to establish serious doubt (Lower Saxony Higher Administrative Court, Decision of 18 January 2001 – 4 L 2401/00 –; Higher Administrative Court of Saxony-Anhalt, Decision of 28 February 2012 – 1 L 159/11 –; Higher Administrative Court of North Rhine-Westphalia, Decision of 21 June 2012 – 18 A 1459/11 –; all available in juris; Higher Administrative Court of Baden-Württemberg, Decision of 12 July 2012 – 2 S 1265/12 – NVwZ-RR 2012, 778).
b) Measured against these standards, the defendant has not presented any substantial reasons to suggest that the administrative court's judgment might be incorrect.
(aa) He argued that the methodology used by the Administrative Court—namely, to examine the circumstances that might indicate the plaintiff's status as an apparent nuisance and the respective protected interests in isolation, and then to conclude from the denial of apparent nuisance status in the isolated examination that the plaintiff's status as an apparent nuisance would also be denied in the overall assessment—was not suitable for reflecting and evaluating a police assessment of a danger from an ex ante perspective. This approach unduly and inaccurately restricts the overall assessment. Furthermore, the overall assessment undertaken by the Administrative Court was incomplete. The police commander had not assumed ex ante that the plaintiff had merely followed the group of masked individuals. Rather, the commander had assumed that the plaintiff was part of the group that had walked masked through the Königsbau. While the Administrative Court acknowledged this in the statement of facts, it did not address it further in its reasoning. The plaintiff's walk through the Königsbau, assumed from an ex ante perspective, as part of the group, underscored the situation to such an extent that it could be concluded that he was disrupting the proceedings. The officer in charge should have concluded this after receiving the report that a demonstration observer had been removed from the premises for disrupting an identity check, that a group of approximately 20 masked individuals had walked through the Königsbau, and that the plaintiff, a former demonstration observer, had been found directly with this group, far removed from any assembly, and had not readily distanced himself from them.
The court held that the necessary local and temporal connection, as required by the jurisprudence of the Administrative Court of Baden-Württemberg, for the plaintiff to be considered an apparent perpetrator of a disturbance, existed because insults and physical attacks on police officers had occurred in the plaintiff's immediate vicinity, and because the group had previously marched through the Königsbau. It was considered likely that the plaintiff had participated in this march, given the ongoing disturbances and the removal of a demonstration observer from the premises.
Furthermore, the Administrative Court's assumption that only disturbances or threats to the same protected interests could be considered in the overall assessment was systematically flawed. For the police's obligation to intervene under Section 6 of the former Police Act (PolG a.F.) to be established, it cannot be required that the apparent perpetrator has created an increased risk through their conduct. Moreover, only someone who has already caused a danger or disturbance to the same protected interest could then be held liable as a perpetrator. It must be taken into account that the intensity of intervention in a simple identity check is comparatively low, so the threshold for apparent danger cannot be set as high as the Administrative Court did. Moreover, there was ex ante evidence of the plaintiff's support for the group of perpetrators. In addition, the identification of the plaintiff also served the purpose of preventing further disturbances during identity checks. Contrary to the opinion of the Administrative Court, the fact that the plaintiff was among the disruptive group, even though the assembly had already ended, also demonstrates that he showed solidarity with them. The fact that the disruptive group consisted of young Kurds did not correspond to the officer in charge's initial assessment. Furthermore, the officer in charge had information indicating that individuals from the so-called "left-wing scene" who were prone to violence had also shown solidarity with the violent participants in the assembly. Wearing a high-visibility vest as a demonstration observer cannot justify an observer role outside, far away, and clearly after an assembly has taken place. While the plaintiff was indeed located on the perimeter of the cordon, the limited space meant he was standing directly next to the disruptive group. There were therefore indications that the plaintiff had abandoned his neutral position and shown solidarity with the disruptive group. Moreover, the situation had not calmed down. Prior verification of the status of being a disturber of the peace would significantly exceed the requirements for the presumption of being a disturber of the peace. The fact that the plaintiff did not cause any further disturbances or endangerments during the police cordon does not lead to the conclusion that the plaintiff was not a disturber of the peace. The officer in charge could not have known the plaintiff's subsequent report beforehand. Therefore, it cannot be considered in the assessment. The offer to uninvolved persons to leave the cordon after providing their personal details was solely due to the principle of proportionality. Unlike uninvolved persons, the plaintiff initially made no attempt whatsoever to distance himself from the group of disturbers. However, anyone who deliberately seeks proximity to a group of disturbers also bears the risk of being considered part of that group. While the plaintiff did subsequently attempt to leave the cordon, this was not to distance himself from the group of disturbers, but rather to avoid having his personal details recorded. According to the facts established by the Administrative Court, the plaintiff's companion stated that he had received a ban from the premises along with a threat of arrest. This, together with the other indications, shows that he abandoned his neutral observer role. The data the plaintiff left with the police was insufficient for establishing his identity (see the defendant's written submission of March 10, 2021, pp. 1 to 11).
bb) This reasoning, which contradicts the Administrative Court's view that the plaintiff could not be considered an apparent offender with regard to the defendant's police action to identify him, does not raise any serious doubts about the correctness of the Administrative Court's judgment.
The administrative court denied the plaintiff's status as an apparent nuisance with regard to the identification of persons on the grounds that there were no sufficiently established factual circumstances justifying police intervention (UA p. 25).
There was insufficient factual evidence to suggest that the plaintiff had abandoned his observer role and shown solidarity with or supported the group. The mere fact that the plaintiff stood near the kettled group was not enough to support this assumption. The plaintiff avoided any appearance of support, both outwardly and through his actions. As far as could be seen, he refrained from any interaction with the group members and was consistently identifiable as not belonging to the group due to his high-visibility vest. Furthermore, the plaintiff positioned himself at the edge of the police cordon, standing against the wall of the building, and neither the defendant's statements nor the reviewed video footage provided any actual indication of the plaintiff's association with the group, such as a conversation, gestures of communication, or similar actions. The plaintiff was clearly identifiable as an observer of the assembly and had been present as such throughout the entire assembly. There was no evidence that he had abandoned this neutral role. The situation had calmed down again as a result of the encirclement. Instead of a short-term reaction to a dynamic situation, a decision had to be made under less time pressure, allowing, among other things, the opportunity to further clarify the facts. The specific circumstances of the plaintiff's encounter within the encirclement also did not provide sufficient evidence to establish his status as a disruptor. In the court's opinion, while the plaintiff did follow the running group, he did not deliberately enter the encirclement. Moreover, the plaintiff consistently distanced himself from the potential disruptors. He remained almost continuously at the edge of the encircled group with his back to the building and was clearly identifiable from the outside as a demonstration observer, and thus as a third party not belonging to any group, due to his vest. Furthermore, he distanced himself from the group by repeatedly requesting to be released from the encirclement. Furthermore, the plaintiff, as a member of the Southwest Demonstration Monitoring Group, had at least provided the police with a name and telephone number in advance, so that direct telephone contact was possible at any time. Sufficient facts for assuming the status of an apparent nuisance do not arise from the plaintiff's behavior 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 action is not sufficient as a fact establishing a danger. Subsequent reporting on the police operation is also insufficient to establish such suspicion. It is not suitable for this purpose, even from a temporal perspective, because sufficient suspicion must exist at the time the police action is taken. The issued order to leave the premises could not establish liability as a disturber of the peace, because the order pertained to a different protected interest, namely ensuring the undisturbed execution of identity checks following the demonstration. The protected interest in identifying individuals, on the other hand, was the prevention of dangers to the health and property of passersby in the Königsbaupassage. Furthermore, there was no connection between the measures taken of such a nature and significance that the disruption of police work following the demonstration would also establish liability as a disturber of the peace with regard to the measures taken after the police cordon.
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 evidence suggesting a danger to the legal rights of passersby in and around the Königsbau from the plaintiff. Accordingly, these factors were insufficient to underscore the situation in which the plaintiff was encountered, thus constituting the remaining factual indication, to such an extent that, while the plaintiff's presence in the area alone could not be considered a legally valid conclusion, a disturbance by the plaintiff could be inferred from a consideration of these other circumstances (Judgment, pp. 24-34).
(cc) The reasoning of the Administrative Court is not called into question by the grounds for appeal in such a way as to give rise to serious doubts as to the correctness of the judgment.
Insofar as it is argued that the overall assessment undertaken by the Administrative Court is incomplete because the operations manager, based on the overall circumstances, should have assumed ex ante that the plaintiff was part of the group that ran masked through the Königsbau, the grounds for appeal unsuccessfully challenge the Administrative Court's evaluation of the evidence and facts.
The Administrative Court, based on the plaintiff's positioning at the edge of the police cordon, his clothing as a demonstration observer, his lack of support for the disruptive group while trapped inside the police cordon, and his repeated requests to be released, concluded that the plaintiff had sufficiently distanced himself from the group (judgment, pp. 28-29). The defendant counters this assessment by the Administrative Court with his own evaluation of the facts and, on this basis, concludes that the plaintiff had not sufficiently distanced himself from the group. However, the application for leave to appeal cannot succeed because the evaluation of facts and evidence is the responsibility of the court, and the court's freedom in this regard—as demonstrated—is only exceeded if it either does not base its evaluation of the facts and evidence on the overall outcome of the proceedings, but instead, according to its legal opinion, disregards relevant information in the file or assumes facts contrary to the record, or if the conclusions it draws violate the laws of logic. However, there is no indication of this, either from the defendant's presentation or elsewhere.
Furthermore, the Administrative Court's assessment is also consistent with the Senate's jurisprudence. According to the Senate's jurisprudence (see judgment of December 14, 2010 – 1 S 338/10 – juris para. 26), an apparent perpetrator is someone who, in retrospect, does not actually cause a danger, but, in retrospect, creates the impression of causing a danger in the eyes of a capable, level-headed, and knowledgeable police officer. Two categories of cases must be distinguished. The prevailing opinion understands an apparent perpetrator to be a person who, through their conduct, has either created an apparent danger or, with regard to a real existing danger, has created the appearance of being responsible. In the second category, the term "apparent perpetrator" is applied to situations in which the danger is probable or even certain, but in which there is only a possibility or suspicion regarding the responsible party. If it is not the existence of a danger but its originator that is unclear, i.e., if there is suspicion of causation of the danger, the person in question should be able to be held liable as the apparent perpetrator (Stephan/Deger, Police Law for Baden-Württemberg, 7th ed., § 7 para. 6). In this category of cases, some legal scholars further require that the person directly caused the appearance of danger through their conduct or an object attributable to them (see, for example, Schenke/Ruthig, Apparent Liability in Police and Public Order Law? – On the Police Law Responsibility of the So-Called Apparent Perpetrator, VerwArch 87 (1996), 329, 331). However, even according to this view, direct causation does not necessarily require a violation of a specific legal norm. It suffices if conduct is objectively capable of creating the impression among third parties that damage to a legally protected interest is imminent (risk of deception). Even those who are unaware that they are being observed by the police assume the risk that their behavior in public will be interpreted as evidence of their disruptive nature (Schenke/Ruthig, ibid., pp. 340 f.).
Measured against this standard, the Administrative Court rightly denied the plaintiff's status as a disturber of the peace. There is no legal objection to the Administrative Court's initial, isolated examination of the potential grounds for the plaintiff's apparent liability as a disturber, followed by a comprehensive review. The defendant fails to explain, nor is it otherwise apparent, why this comprehensive review should be considered impermissibly and inaccurately restricted.
While the so-called risk of deception would fall on the plaintiff, such deception can occur if a person is in very close temporal and spatial proximity to a disturbance of public safety perpetrated by a group and does not sufficiently distance themselves from the group. Whether sufficient distancing exists can only be determined by considering the specific circumstances of the individual case (see Senate, Decision of March 10, 2015 – 1 S 1225/14 –). The Administrative Court essentially proceeded on this basis as well (Judgment, p. 31). However, it found sufficient distancing on the part of the plaintiff, within the framework of an overall assessment, particularly in the fact that the plaintiff had remained almost continuously on the periphery of the surrounded group, was clearly identifiable as a demonstration observer by his vest, and had repeatedly requested to be released from the surrounded area (Judgment, pp. 28-29). There is no objection to this. In particular, the plaintiff's distancing himself in the present case went beyond simply describing himself as a demonstration observer and merely wearing special clothing (cf. Senate, Decision of 10 March 2015 – 1 S 1225/14 -)
Moreover, the Administrative Court correctly concluded that the issued order to leave the premises could not lead to the plaintiff being held liable as a disturber of the peace, because the order pertained to a different protected interest, namely ensuring the undisturbed execution of identity checks following the demonstration (Judgment, p. 32). The dangerous situation in this regard had already ended when the group of approximately 20 people ran through the Königsbau building, thereby endangering the health and property of passersby in and around the building. However, liability as a disturber of the peace can only be assessed in relation to the specific danger caused. The Administrative Court did this without legal error. By arguing that the plaintiff's identity checks also aimed to prevent further disruptions during identity checks, the defendant again challenges the Administrative Court's assessment of the facts and evidence, without demonstrating that the Administrative Court overlooked any relevant information in the file or assumed facts contrary to the record.
II. The case is not of fundamental importance within the meaning of Section 124 Paragraph 2 No. 3 of the Code of Administrative Court Procedure. This is only the case if the desired further court proceedings could contribute to answering specific legal questions relevant to the decision or questions in the area of fact-finding that are not clarified and have implications beyond the individual case, requiring clarification by a higher court in the interest of the uniformity of jurisprudence or the further development of the law. The demonstration of these prerequisites requires that, by thoroughly examining the subject matter of the first-instance judgment, a specific legal or factual question be identified, i.e., named, which was decisive for the administrative court's decision and which will also be significant for the decision in the appeal proceedings, and that an indication be given of the reason that is intended to justify its recognition as being of fundamental importance (cf. VGH Baden-Württemberg, decision of 05.06.1997 – 4 S 1050/97 – VBlBW 1997, 420 with further references; decision of 19.08.2010 – 8 S 2322/09 – ZfWG 2010, 424). Leave to appeal pursuant to Section 124 Paragraph 2 No. 3 of the Code of Administrative Court Procedure (VwGO) is not granted due to the lack of relevance of a fundamental question raised to the decision if the challenged judgment is based on several independent grounds and one of these grounds is not challenged, or not successfully challenged, in the application for leave to appeal. In the case of such multiple grounds, the requirements for leave to appeal must, in principle, be met for each of them (see Higher Administrative Court of North Rhine-Westphalia, Decision of April 15, 2008 – 6 A 185/06 – juris para. 4, with further references; Bavarian Higher Administrative Court, Decision of March 10, 2011 – 14 ZB 09.2479 – juris para. 7; Decision of June 8, 2011 – 12 ZB 10.1727 – juris para. 10).
The grounds for appeal fail, even after examining the subject matter of the first-instance judgment, to identify a specific legal or factual question that was decisive for the administrative court's decision and that will also be significant for the decision in the appeal proceedings, and furthermore to provide any indication of the reason that justifies its recognition as being of fundamental importance.
The only question actually posed by the defendant, namely, what role the overall assessment plays in the examination and whether it is correct to reduce it de facto to a repetition of the isolated examination of the individual circumstances indicating the plaintiff's status as a nuisance (defendant's brief of March 10, 2022, p. 13), is not posed in this way. This is because the Administrative Court did not reduce the overall assessment to a repetition of the isolated examination of the individual circumstances indicating the plaintiff's status as a nuisance, but rather examined whether all possible points of reference for the plaintiff's potential status as a nuisance could lead to a different result when considered together than when viewed in isolation (judgment, pp. 33-34).
III. The defendant's objection based on divergence is also unsuccessful. Demonstrating a divergence that would justify an appeal under Section 124 Paragraph 2 No. 4 of the Code of Administrative Court Procedure (VwGO) requires, first, that a specific, abstract legal principle underlying the contested decision be identified and contrasted with a legal principle concerning the same legal provision, which is itself relevant to the decision of the court of divergence (established case law, see, e.g., Federal Administrative Court, Decision of December 20, 1995 – 6 B 35.95 – NVwZ-RR 1996, 712). The mere incorrect application of a legal principle established by the court of divergence does not constitute a deviation in this sense (established case law, cf. Federal Administrative Court, Decision of July 10, 1995 – 9 B 18.95 – NVwZ-RR 1997, 101), nor does overlooking a legal question or a legal principle (established case law, cf. Federal Administrative Court, Decision of February 17, 1997 – 4 B 16.97 – NVwZ-RR 1997, 512). A latent divergence that warrants admissibility can only exist if the administrative court has implicitly proceeded on the basis of a divergent legal principle (cf. Federal Administrative Court, Decision of March 26, 2012 – 2 B 26.11 – juris).
The defendant's submissions are clearly insufficient. He fails to identify any specific abstract legal principle underlying the contested decision, instead merely reiterating his criticism of the administrative court's ruling. He thereby fails to meet the requirements for a divergence appeal.
The decision on costs is based on Section 154 Paragraph 2 of the Administrative Court Procedure Act (VwGO). The determination of the value in dispute is based on Section 63 Paragraph 2 Sentence 1, Section 47 Paragraphs 1 and 3, and Section 52 Paragraph 2 of the Court Costs Act (GKG).
This decision is final and cannot be appealed (§ 152 para. 1 VwGO).
