Trial News

Police officers who orchestrated an allegedly violent mass arrest of peaceful protestors and innocent bystanders in St. Louis, Mo., are not entitled to qualified immunity in a lawsuit alleging they violated a man’s constitutional rights, the Eighth Circuit has ruled. (Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022).)

On the night of Sept. 15, 2017, people in St. Louis took to the streets to protest after an officer was acquitted of murder charges in the death of Anthony Lamar Smith, a young Black man who was shot and killed by police. After receiving reports of property damage in a neighborhood, police ordered the protestors to disperse. Over the next two hours, officers began blocking roads in the area and moving people toward one intersection. Brian Baude, who lived in the area and was not present for the earlier dispersal orders, went outside to see what was going on. As officers began setting up a perimeter to box the protesters into one contained area and prevent them from leaving—an action referred to as “kettling”—Baude informed officers that he was not part of the protest and asked if he could leave. The officers told him it was too late, and he was herded into the kettling area. Baude was pepper sprayed, his hands were bound with zip ties, and he was detained for 14 hours before being released with a court date that was later canceled.

Baude brought claims against the city and its police department under 42 U.S.C. §1983 for violations of his constitutional rights under the First, Fourth, and Fourteenth Amendments. He also stated in his complaint that many of the people in the kettle were not protesters—they were local residents, business owners, journalists, and others who were rounded up indiscriminately and herded into the kettle, where they were arrested en masse. The plaintiff also alleged that he observed officers acting indiscriminately and using force—including deploying pepper spray and kicking, beating, and dragging—against people in the kettle who were not behaving violently or aggressively.

The district court rejected the defendants’ qualified immunity defense. They filed an interlocutory appeal with the Eighth Circuit, which affirmed.

The Eighth Circuit held that the plaintiff met his burden to state a plausible claim that the defendants’ actions violated his clearly established constitutional rights and that the officers were not entitled to qualified immunity at this stage. On the Fourth Amendment unreasonable seizure claim, the plaintiff alleged that the officers did not warn him or the others that they were going to be confined to an area and arrested en masse. Even though a mass arrest can be legal under the Fourth Amendment, the court explained, it requires that police “have grounds to believe all arrested persons were a part of the unit observed violating the law.” This can include innocent bystanders whom police incorrectly believe are part of the unit violating the law, but video from the incident that showed people milling about freely and moving in and out of the kettle area even after the police purportedly ordered the crowd to disperse raised questions of fact. The court noted that the video did not “show any real sense of urgency or confrontation visible in the crowd” and that the officers could not rely on the earlier actions of a small group of people whom they claimed were acting violently to justify a mass arrest.

On the plaintiff’s Fourth Amendment excessive force claim, the court stated that this constitutional right was clearly established at the time of his arrest—one of the two requirements of the test for qualified immunity. Thus, the plaintiff needed to prove only that the force used against him—pepper spraying him and zip tying his hands—was objectively unreasonable. Again referencing video evidence from the incident, the court concluded that it “paint[ed] a picture of a compliant individual among a generally peaceful and compliant crowd who was boxed into an intersection by police, pepper sprayed, and forcefully arrested” and that this was sufficient at the pleading stage to call into question whether the officers acted reasonably.

The court also held that the plaintiff’s claims against supervisory officers of the St. Louis police department could proceed. The court rejected the officers’ contention that they were entitled to qualified immunity because they did not participate in the use of force against the plaintiff and that they had no obligation to intervene in the mass arrest if they believed their subordinate officers were acting reasonably. The court explained that Eighth Circuit precedent at the time of the incident clearly established that supervisory officers who fail to intervene when they have knowledge of subordinate officers’ actions that create a “substantial risk of serious harm” can be liable for a Fourth Amendment violation. Because the plaintiff’s allegations and the video evidence raise factual questions on this issue, it is for a fact-finder to decide, the court concluded.

“When the Eighth Circuit saw the video, it ruled that it matched our allegations and that there’s no basis to give qualified immunity to these arguments,” said St. Louis attorney Javad Khazaeli, who represents Baude. “We would hope, at some point, that the city of St. Louis, after being told repeatedly by district court judges and Eighth Circuit appellate judges that what its officers did was wrong that it would finally hold somebody accountable.” Khazaeli noted that more than a dozen other cases and a class action are pending against the defendants for what happened that night.