Jones v. Turner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LAURA JONES, )

)

Plaintiff, )

)

vs. ) Case No. 4:19-cv-02583

)

CITY OF ST. LOUIS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Laura Jones alleges that she was injured by officers of the St. Louis

Metropolitan Police Department (“SLMPD”) while attending a protest in downtown St.

Louis. She has sued City of St. Louis (the “City”) and SLMPD officers Timothy Turner,

Jonathan Vanarsdale, Brian DeMatteis, Joshua Hall, and unidentified John Does 1 and 2,1

asserting claims under 42 U.S.C. § 1983 and state law. The matter is now before the

Court on the named Defendants’ motion for summary judgment. ECF No. 63.

For the reasons set forth below, Defendants’ motion will be granted in part and

denied in part. The motion will be granted with respect to Plaintiff’s claims for violation

of her First Amendment rights and for municipal liability under § 1983, but the motion

will be otherwise denied. Further, the Court will decline to exercise supplemental

jurisdiction over Plaintiff’s state-law claims against the City and will dismiss those

1 The parties stipulated to the dismissal of five additional named Defendants:

Samuel Gilman, Joe Lankford, Elijah Simpson, Sisavath Singharath, and Richard

Hellmeier. See ECF Nos. 81 & 82.

claims without prejudice. Finally, the Court will order Plaintiff to show cause why the

Doe Defendants should not be dismissed.

BACKGROUND

Downtown Protests

Viewed in the light most favorable to Plaintiff, the facts are as follows. On

September 15, 2017, SLMPD Officer Jason Stockley was acquitted of the murder of St.

Louis resident Anthony Lamar Smith. ECF No. 75, Pl.’s Resp. to Defs.’ Statement of

Uncontroverted Material Facts (“SUMF”) ¶ 1. In response to the acquittal, many people

gathered in downtown St. Louis that day to protest. SUMF ¶ 2.

The record contains extensive video and photographic evidence of the downtown

protest, including cell phone videos, SLMPD documentary team videos, aerial and on-

the-ground videos from media outlets, surveillance videos from fixed cameras, and still

photographs, all from different angles. The parties have also added captions and other

annotations to some of the video and photographic evidence.

At approximately 1:30 PM on September 15, 2017, before Plaintiff arrived

downtown, the SLMPD was in the process of loading officers onto buses in order to

remove them from the downtown area where protests were occurring. SUMF ¶ 4. In

response, some protestors formed a wall in an attempt to prevent the buses from leaving,

and a few protestors threw items, such as water bottles, at the buses. SUMF ¶¶ 6–11.

The SLMPD deployed a Bicycle Response Team (BRT) to help extract the buses, and the

buses thereafter left the area. SUMF ¶¶ 13–15

More than three hours later, around approximately 5:00 p.m., Plaintiff arrived

downtown and joined a crowd protestors near the intersection of Clark Avenue and

Tucker Boulevard. Hundreds of individuals were assembled or milling around at or near

this intersection. Around this time, a couple of individuals jumped on and kicked the

windshield of a vacant police vehicle parked on Clark, just west of the intersection with

Tucker, before running away. SUMF ¶ 15; see also ECF No. 75-2, Pl.’s Ex. 2, at 47.

The SLMPD sent Special Operations officers and BRT officers to the intersection to

respond, but a few individuals out of the hundreds in the crowd began throwing items at

these officers. SUMF ¶¶ 16–20. The SLMPD then determined it necessary to dispatch

the Civil Disobedience Team (CDT) to the intersection. SUMF ¶ 21.

Shortly thereafter, the CDT officers formed a line on Clark, facing west toward its

interaction with Tucker, where a crowd of protestors, including Plaintiff, was gathered.

The line of CDT officers held up shields in front of them. Plaintiff moved to the front of

the crowd and stood in front of the CDT line with her arms outstretched above her head

and made “peace signs” with each hand. She was surrounded by several other protestors.

Meanwhile, a handful of individuals approximately 50 feet behind Plaintiff, near the

northwest corner of Clark and Tucker, continued to throw water bottles and also began to

throw pieces of concrete from a broken manhole cover at the officers. The broken

manhole cover was located on Tucker Boulevard, just north of the intersection with

Clark. Plaintiff was not throwing any objects, and from the video footage, it does not

appear that anyone immediately surrounding her was either. However, concrete and

water bottles can be seen flying overhead toward the CDT line from the Clark and Tucker

intersection behind Plaintiff.

According to video and other evidence, the following events then transpired very

quickly, within the span of several seconds. The CDT line advanced forward toward

Plaintiff while an SLMPD sergeant not named in this action, Brian Rossomanno, began

shouting over a loudspeaker. See ECF No. 15, Defs.’ Ex. R, at 1:28. Plaintiff heard the

police announce something over a loudspeaker, but she could not determine what was

said. SUMF ¶ 44. However, video evidence confirms that Sergeant Rossomanno was

beginning to announce what would be his first dispersal order. See ECF No. 66-14,

Defs.’ Ex. Q, at 31:34.

The remaining named Defendant officers were among the officers near the front of

the CDT line. They assert that they were instructed to move toward the protestors in

order to occupy the portion of the intersection where the broken manhole cover was

located. SUMF ¶ 31.

As Plaintiff focused on discerning the message from the loudspeaker, an

unidentified police officer (John Doe No. 1 in Plaintiff’s lawsuit) suddenly sprayed

Plaintiff in the eyes with pepper spray while the line of CDT officers continued to

advance. Almost immediately after Plaintiff was sprayed, and while Plaintiff was

temporarily blinded from the pepper spray, the moving line of CDT officers reached and

made physical contact with Plaintiff. Plaintiff screamed as these events took place.

The timing of Sergeant Rossomanno’s first dispersal order and officers’ use of

pepper spray and other force on Plaintiff is somewhat unclear from the video evidence.

In one video, Sgt. Rossomanno can be heard beginning to announce an order at about

8:47. ECF No. 66-7. Defs.’ Ex. H, at 8:47. Seconds later, Plaintiff can be heard

screaming. Id. at 8:50. By the time the dispersal order is completed at about 9:03,

Plaintiff can be seen lying motionless on the ground beneath the advancing officers.

Video evidence from other angles suggests that the dispersal order began after the

officers advanced, and the order was not completed until Plaintiff was already on the

ground. See ECF No. 66-14, Defs.’ Ex. Q, at 31:39; ECF No. 66-6, Defs.’ Ex. G, at 8:19;

ECF No. 66-15, Defs.’ Ex. R, at 1:34.

The nature of the officers’ contact with Plaintiff is also in dispute. According to

Plaintiff, Vanarsdale pushed or shoved Plaintiff backward with his shield, and Turner

used his left arm to push Plaintiff onto the ground. SUMF ¶¶ 48–52. Plaintiff then

curled herself into a fetal position on the ground to avoid being injured by the other

officers. ECF No. 86, Defs.’ Resp. to Pl.’s Additional Statement of Uncontroverted

Material Facts (“ASUMF”) ¶ 18.

Another protestor attempted to aid Plaintiff while she lay on the pavement, but

DeMatteis rushed forward and pressed Plaintiff against the ground with his shield, which

prevented the other protestors from reaching her. While Plaintiff remained on the

ground, DeMatteis then kicked or struck Plaintiff as he pressed forward toward other

fleeing protestors.2 SUMF ¶ 53. As the rest of the CDT line advanced, Hall also kicked

or struck plaintiff with his foot as he stepped over her body. SUMF ¶ 53.

After the CDT line passed Plaintiff, other officers pulled her to her feet, restrained

2 Video evidence depicts a young woman near Plaintiff being pushed to the ground

by the advancing officers immediately after Plaintiff was knocked down, and a non-

defendant officer appears to kick the other protestor while she lay on the ground. ECF

No. 66-16, Defs.’ Ex. S, at 0:10.

her hands, placed her in handcuffs, and then led her away from the protest.3 SUMF ¶¶

54–57. Some other protestors who failed to move away from the CDT officers were also

arrested, but most of the protestors were permitted to leave the area. SUMF ¶ 58.

Plaintiff was arrested for interfering with law enforcement, but no formal charges were

ever filed against her. SUMF ¶¶ 57, 63.

Turner testified by deposition that Plaintiff was arrested for interfering with police

because she refused to disperse after orders were given to disperse. ECF No. 66-9, Defs.’

Ex. K, Turner dep. at 83:19-84:4. Plaintiff suffered extensive bruising and an asthma

attack as a result of the CDT officers’ use of force. She also suffered psychological

trauma from the encounter.

City Policies, Practices, and Training

The City has instituted a variety of policies and procedures to regulate the use of

force by officers. The City has a written use-of-force policy which requires the

Department of Personnel, Police Division, to identify all incidents involving the use of

force by officers. The policy requires all officers to document the use of force, and these

use of force reports are reviewed by supervisors. If supervisory officers believe the use

of force was excessive or unwarranted, they can investigate further or initiate disciplinary

proceedings. Further, the SLPMD maintains an Internal Affairs Division which

investigates some civilian complaints against officers.

The use-of-force policy also includes regulations which apply to “mass civil

3 The arresting officer was Defendant Simpson, who, as noted above, has since been

voluntarily dismissed by stipulation.

disobedience contexts,” and which specifically regulate the deployment of chemical

agents for crowd dispersal. The latter regulations were added to the SLMPD’s use-of-

force policy pursuant to a settlement agreement in Templeton v. Dotson, No. 4:14CV2019

CEJ (E.D. Mo.), entered on March 25, 2015. That settlement agreement prohibited the

SLMPD from deploying chemical agents for the purpose of dispersing individuals

engaged in non-criminal activity unless officers (a) issue a clear and unambiguous

warning, (b) provide individuals sufficient opportunity to heed the warning, (c)

reasonably attempt to minimize the impact of the chemical agents on individuals who are

complying with lawful law enforcement commands, and (d) ensure there is a means of

safe egress from the area. See ECF No. 75-6, Pl.’s Ex. 6, Templeton Settlement

Agreement. Per the settlement agreement, these restrictions do not apply “to situations

that turn violent and persons at the scene present an imminent threat of bodily harm to

persons or damage to property, and when law enforcement officials must defend

themselves or other persons or property against such imminent threat.” Id.

SLMPD officers also receive ongoing training regarding the use of force. Each

officer must complete a defensive tactics course at the Police Academy, and officers are

tested monthly on the use-of-force policy through an internal Policy Acknowledgement

System (“PASS”). SUMF ¶¶ 67–68. All SLMPD officers were also sent a copy of the

Templeton settlement and were required to confirm that they read the order. SUMF ¶ 73.

In anticipation of protests that were expected to follow from the Stockley verdict,

supervising officers received special training with the Police Legal Division.

Although all SLMPD officers were required to verify that they had read the

Templeton agreement, a substantial number of deposed officers, including Defendant

Vanarsdale, testified that they had no awareness of this agreement and could not recall if

they had received training on its requirements. ASUMF ¶¶ 58–60. High-ranking

supervisors in the SLMPD were similarly unfamiliar with the settlement’s terms and

could not recall training with respect to it. ASUMF ¶¶ 62–68.

SLMPD policy also requires that officers document the use of force for

supervisory review. The officers named in this lawsuit did not document any use of force

against Plaintiff during this incident. Instead, the incident report indicates that Plaintiff

“tripped and fell to the ground,” and it does not mention the use of force or pepper spray

against Plaintiff. ECF No. 75-2, Pl.’s Ex. 2, at 48.

Beyond the events at issue here, Plaintiff has provided evidence of other protests

against police violence or misconduct, and the SLMPD’s response thereto. Specifically,

Plaintiff has attached excerpts of the transcript of an October 2018 preliminary injunction

hearing before Judge Catherine D. Perry in Ahmad v. City of St. Louis, No. 4:17 CV 2455

CDP (E.D. Mo.), another case arising out of the Stockley protests. The excerpts contain

witness testimony briefly describing or alluding to the SLMPD’s prior use of chemical

agents without warning against people protesting police killings on two occasions, in

May and August of 2015, and against people protesting the treatment of detainees in the

St. Louis City Workhouse on July 21, 2017. See ASUMF ¶¶ 89–92.

Public Facilities Protection Corporation

In 1986, the City’s Budget Director, Deputy Comptroller, and City Counselor

formed a Missouri corporation called the Public Facilities Protection Corporation

(PFPC). The PFPC is a common fund which exists to provide liability protection to the

City, and the City transfers funds annually to the PFPC.

Procedural History

Plaintiff alleged ten claims in her amended complaint (ECF No. 39): Count I

against the individual Defendants for violating her First Amendment rights under 42

U.S.C. § 1983; Count II against the City for municipal liability under § 1983; Count III

against the individual Defendants and the City for negligent infliction of emotional

distress under state law; Count IV against the individual Defendants for excessive force

in violation of the Fourth Amendment under § 1983; Count V against the individual

Defendants and the City for battery under state law; Count VI against the individual

Defendants for unreasonable seizure in violation of the Fourth Amendment; and Counts

VII through X against the individual Defendants and the City for false arrest, false

imprisonment, abuse of process, and malicious prosecution under state law.

By stipulation of the parties (ECF No. 81), the claims directly challenging

Plaintiff’s arrest—Counts VI (unreasonable seizure), VII (false arrest), VIII (false

imprisonment), IX (abuse of process), and X (malicious prosecution)—were dismissed

with prejudice. Thus, the only remaining claims are for First Amendment retaliation,

excessive force, municipal liability, negligent infliction of emotional distress, and battery.

The Court previously granted Plaintiff additional time to complete discovery in

order to attempt to identify the remaining John Doe defendants and compelled the City to

assist Plaintiff in those efforts. See ECF No. 62. Discovery is now complete, and the

case is ready for trial. However, Plaintiff has still not identified John Doe Nos. 1 and 2.

ARGUMENTS OF THE PARTIES

The remaining named Defendant officers argue that they are entitled to summary

judgment because the federal claims against them are barred by qualified immunity and

the state-law claims against them are barred by official immunity. The City argues that it

is entitled to summary judgment on Plaintiff’s municipal liability claim because there is

no underlying constitutional violation and, even if there were, Plaintiff has failed to offer

evidence of a City policy, custom, or practice that caused such a violation. The City

further argues that the state-law claims against it are barred by sovereign immunity.

In response, Plaintiff argues there are genuine issues of material fact with respect

to both the First Amendment and excessive force claims against the officers, and Plaintiff

contends that it may be reasonably determined from the evidence that the officers

violated Plaintiff’s clearly established constitutional rights. On the state-law claims

against the officers, Plaintiff argues that the evidence reasonably gives rise to a finding of

bad faith or malice, such that official immunity is not warranted.

With respect to the City, Plaintiff argues that the evidence creates genuine disputes

of material fact as to whether the City failed to train and supervise its officers, and as to

whether the City had a custom of permitting officers to use excessive force. Finally,

Plaintiff argues that the City has waived sovereign immunity by virtue of the PFPC.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “[T]he burden of demonstrating there are no genuine issues of

material fact rests on the moving party, and we review the evidence and the inferences

which reasonably may be drawn from the evidence in the light most favorable to the

nonmoving party.” Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015). To avoid

summary judgment, the nonmovant has the “burden of presenting evidence sufficiently

supporting the disputed material facts that a reasonable jury could return a verdict in their

favor.” Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992). “Where

the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

II. Photographic and Video Evidence

Both parties rely heavily on the photographic and video evidence from the day of

the protest. While some of the still photographs provide high-resolution captures of the

events between Plaintiff and the CDT officers, several of the video clips do not include

the full sequence of events involving Plaintiff. Additionally, some of the videos have no

audio. Each side contends that the photographic and video evidence contradicts the other

side’s version of events and confirms its own. Defendants also invoke Scott v. Harris,

550 U.S. 372 (2007), and argue that the photographic and video evidence “blatantly

contradict” Plaintiff’s assertions. However, with respect to several disputed questions of

fact, the Court cannot say that the photographic and video evidence conclusively

establishes the true version of events.

For example, Defendants assert that the video evidence proves that law

enforcement issued dispersal orders prior to making physical contact with Plaintiff.

However, as noted above, several videos from the incident show that the first dispersal

order was given shortly after, at about the same time, or, at best, a moment before, the

CDT line’s advance, and the order was not completed until Plaintiff was on the ground.

Defendants also contend that Turner and Vanarsdale “likely made contact” with

Plaintiff but that this contact was “incidental” and “inevitable.” Again, the video

evidence does not incontrovertibly support Defendants’ characterization of events. The

aerial view of Plaintiff’s arrest shows Vanarsdale appearing to push or shove Plaintiff

backward with his shield, causing her to fall to the ground. ECF No. 66-16, Defs.’ Ex. S,

at 0:02. Turner’s contact with Plaintiff is difficult to evaluate from the video, but it

cannot be said that the footage “conspicuously refutes and completely discredits”

Plaintiff’s version of events. Wallingford v. Olson, 592 F.3d 888, 893 (8th Cir. 2010).

Photographic evidence could reasonably support Plaintiff’s version that Turner held

Plaintiff by her arm and prevented her from moving away from the advancing CDT line.

ECF No. 66-27, Defs.’ Ex. EE, at 11, 15–16.

Defendants further contend that the contact between DeMatteis and Plaintiff was

“inadvertent.” This assertion is likewise not incontestably supported by the video

evidence. The aerial video appears to show DeMatteis rush forward to push another

protestor away from Plaintiff after Plaintiff is lying on the ground. The relevant portion

of the video is obscured by a passing helicopter, but DeMatteis can be seen pressing his

shield against Plaintiff while she is on the ground. The video also shows DeMatteis hit

Plaintiff with his left leg as he steps over her. ECF No. 66-16, Defs.’ Ex. S, at 0:06. This

video evidence does not blatantly contradict Plaintiff’s version of events, and several

portions of the footage appear to support Plaintiff’s characterization of events.

The video evidence with respect to Hall is less decisive. The aerial video shows

Hall’s right leg make contact with Plaintiff while Hall steps over Plaintiff, but it is

unclear if this contact is accidental or deliberate. ECF No. 66-16, Defs.’ Ex. S, at 0:08.

Furthermore, whether Hall contacts Plaintiff with his other leg cannot be determined

from the video because he is blocked by another protestor. The photographs of Hall also

do not conclusively demonstrate whether his contact with Plaintiff was intentional; nor do

they demonstrate the force with which Hall’s leg struck Plaintiff. Although the

photographic and video evidence does not overwhelmingly support Plaintiff’s assertions

with respect to Hall, it does not completely discredit them either.

III. Claims Against Individual Officers

The Court first addresses the federal claims against the remaining named officers

for retaliation in violation of the First Amendment (Count I) and excessive force in

violation of the Fourth Amendment (Count IV), as well as the state-law claims against

these officers for negligent infliction of emotional distress (Count III) and battery (Count

V). The Court concludes that the Defendant officers are entitled to qualified immunity

on Count I but that genuine disputes of material fact preclude a grant of qualified

immunity on Count IV or official immunity on Counts IIII and V.

A. Qualified Immunity on Federal Claims (Counts I and IV)

“Qualified immunity shields government officials from liability in a § 1983 action

unless the official’s conduct violates a clearly established constitutional or statutory right

of which a reasonable person would have known.” Burbridge v. City of St. Louis, 2 F.4th

774, 780 (8th Cir. 2021). “Once a defense of qualified immunity is raised, a plaintiff

must offer ‘particularized’ allegations of unconstitutional or illegal conduct.” Conrod v.

Davis, 120 F.3d 92, 95 (8th Cir. 1997). “The doctrine of qualified immunity requires an

individualized analysis as to each officer, because a person may be held personally liable

for a constitutional violation only if his own conduct violated a clearly established

constitutional right.” Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017) (citations,

internal quotation marks, and emphasis omitted). The Supreme Court has emphasized

that “qualified immunity represents the norm,” Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982), and its protections extend to “all but the plainly incompetent or those who

knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“The threshold inquiry a court must undertake in a qualified immunity analysis is

whether plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.

Pelzer, 536 U.S. 730, 736 (2002). In determining whether a constitutional violation is

established, the Court is obligated to “view the evidence in the light most favorable to the

opposing party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014).

Even if the action in question does violate a constitutional right, to overcome

qualified immunity, it must also be shown that the violated right was clearly established.

For a constitutional right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). There is no

requirement that “the very action in question has previously been held unlawful,” but for

an official action to violate a clearly established right, the unlawfulness of that action

must be apparent in light of pre-existing law. Id. “In other words, the right violated must

have been established ‘beyond debate.’” Mendoza v. United States Immigr. & Customs

Enf't, 849 F.3d 408, 417 (8th Cir. 2017) (citation omitted). Clearly established law

“should not be defined at a high level of generality,” but instead “must be particularized

to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam).

1. First Amendment Claim (Count I)

The First Amendment generally forbids government officials from retaliating

against an individual for their First Amendment activity, and a violation of this right can

support a claim under 42 U.S.C. § 1983. See Hartman v. Moore, 547 U.S. 250, 255–56

(2006). To establish such a claim, “the plaintiff must show (1) he engaged in a protected

activity, (2) the government official took adverse action against him that would chill a

person of ordinary firmness from continuing in the activity, and (3) the adverse action

was motivated at least in part by the exercise of the protected activity.” Peterson v.

Kopp, 754 F.3d 594, 602 (8th Cir. 2014).

While retaliation need not be the only motivator, it must be “a substantial factor in

the decision to arrest.” Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir.

2010). It is the plaintiff’s burden to show the retaliatory motive was a “substantial

factor” or a “but-for” cause of the arrest. Id. “The causal connection is generally a jury

question, but it can provide a basis for summary judgment when the question is so free

from doubt as to justify taking it from the jury.” Revels v. Vincenz, 382 F.3d 870, 876

(8th Cir. 2004) (citation omitted). “If the [adverse action] was driven not by ‘animus’ but

by the defendant’s understanding—however mistaken—of his official duties, then it was

not ‘retaliatory.’” Mitchell v. Kirchmeier, 28 F.4th 888, 896 (8th Cir. 2022).

In this case, Plaintiff’s First Amendment claim is deficient because she has not

produced sufficient evidence to show that retaliation was a “substantial factor” which

motivated the named officers’ conduct.4 There is no evidence that the named officers

targeted Plaintiff specifically because she was engaged in expressive activity at the

protest; indeed, the majority of protestors in downtown St. Louis on the day in question

were not arrested for their expressive activity. Cf. Peterson, 754 F.3d at 603 (denying

summary judgment for First Amendment retaliation claim where the victim of adverse

action was the only person engaged in First Amendment expression). Instead, the

evidence tends to support the alternative explanation that the officers targeted Plaintiff

because she interfered with the advance of the CDT line. See Mitchell, 28 F.4th at 897–

98 (holding that retaliatory animus had not been plausibly alleged where the protestor-

plaintiff was injured by law enforcement “after [he] stood in their way and ignored a

[warning to disperse]”). Furthermore, the fact that the CDT officers were being pelted

with water bottles and pieces of concrete bolsters Defendants’ non-retaliatory

justification that any use of force was in an attempt to maintain order.

4 The Court expresses no opinion on whether John Doe No. 1’s use of pepper spray

constituted unlawful retaliation. This officer has not been identified, and none of the

named Defendant officers is alleged to have participated in the use of pepper spray

against Plaintiff. Qualified immunity requires an individualized analysis for each

defendant, and the conduct of a nonparty officer is irrelevant to the issue of whether the

remaining named Defendants here violated Plaintiff’s First Amendment rights. See

Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017).

As discussed below, the evidence here—particularly regarding whether Plaintiff

was given a warning to disperse before officers used force against her and the nature of

the force used—gives rise to a questions of fact that warrant a denial of qualified

immunity on Plaintiff’s excessive force claim.5 However, “[o]fficers merely carrying out

their duty as they understand it are not liable for retaliatory arrest or retaliatory use of

force even if their understanding of their duty is . . . so mistaken as to be ‘unreasonable.’”

Id. at 897. On this record, Plaintiff has not presented evidence which from which it could

be reasonably concluded that she was “‘singled out’ for adverse treatment because of

[her] exercise of constitutional rights.” Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir.

2007) (quoting Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007)). At a

minimum, Plaintiff cannot show that the law was clearly established that advancing the

CDT line under these circumstances would have been a violation of the First

Amendment. Therefore, the remaining named Defendant officers are entitled to qualified

immunity on Count I.

2. Excessive Force / Fourth Amendment Claim (Count IV)

The Fourth Amendment protects the right of individuals to be free from excessive

force in the context of an arrest, and violations of this right are cognizable under § 1983.

See Graham v. Connor, 490 U.S. 386, 393–94 (1989). “Excessive force claims under the

Fourth Amendment are governed by a reasonableness standard.” White v. Jackson, 865

F.3d 1064, 1074 (8th Cir. 2017). In analyzing whether the use of force in a particular

5 As noted above, the parties stipulated to the dismissal of Plaintiff’s unlawful arrest

claim (Count VI). See ECF No. 81.

case is reasonable, the Court engages in “a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Id. (quoting Graham, 490 U.S. at 396). Relevant

factors to consider include (1) “the severity of the crime at issue,” (2) “whether the

suspect poses an immediate threat to the safety of the officers or others,” and (3)

“whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396.

This assessment is an objective one, and it considers reasonableness “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). Further, “[t]he calculus of

reasonableness must embody allowance for the fact that police officers are often forced to

make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.” Id.

(citing Graham, 490 U.S. at 396-397).

Viewed in the light most favorable to the Plaintiff, the evidence indicates that the

remaining named Defendant officers violated Plaintiff’s clearly established right to be

free from excessive force. These officers do not contend that they believed Plaintiff was

acting as a unit with the individuals who were throwing objects at them or that Plaintiff

otherwise presented any immediate threat. Cf. Bernini v. City of St. Paul, 665 F.3d 997,

1005–06 (8th Cir. 2012). Yet, according to Plaintiff, Defendants Vanarsdale and Turner

both pushed Plaintiff to the ground. Based on the video evidence, this use of force may

have occurred either before or simultaneous with the first order to disperse, and there are

genuine disputes of material fact as to whether officers gave any warning prior to

advancing and whether and to what degree Plaintiff was noncompliant. See Ngo v.

Storlie, 495 F.3d 597, 603 (8th Cir. 2007) (noting that failure to give a warning where

feasible may “add[] to the unreasonableness” of an officer’s actions); MacKintrush v.

Pulaski Cty. Sheriff’s Dep’t, 987 F.3d 767, 770 (8th Cir. 2021) (holding that a question of

fact as to the existence and extent of an individual’s noncompliance with officer’s

commands prior to the officer’s use of force precluded grant of qualified immunity).

Once Plaintiff had fallen to the ground, Defendant DeMatteis pressed Plaintiff into

the ground with his shield, even after she had fallen over and did not pose a threat to the

officers. Defendants Hall and DeMatteis also kicked or struck Plaintiff with their feet as

they advanced down the street. Each of the Defendant officers used force against

Plaintiff, even though she was suspected of, at most, only a nonviolent misdemeanor, she

posed no threat to officers, and she was not resisting in any way. See MacKintrush, 987

F.3d at 771 (8th Cir. 2021) (“Ambiguous gestures that officers claim are noncompliant . .

. do not justify body slamming an otherwise compliant, nonviolent, nonthreatening

misdemeanant.”); cf. White, 865 F.3d at 1079–80 (granting qualified immunity to officers

for shooting a protestor with rubber bullets when he was in the vicinity of a violent crowd

and proceeded directly toward a police skirmish line after being told to stop approaching

the line, but denying qualified immunity to officers for pepper spraying, punching, and

kicking that protestor after he was fully subdued and no longer resisting).

Defendants contest Plaintiff’s characterization of the facts, and they suggest that

the Defendant officers only “made inadvertent contact” with Plaintiff and caused, at

most, only de minimis injury.6 But Defendants’ disagreement regarding the intentionality

of their physical contacts demonstrates a genuine dispute of material fact.

The video evidence does not completely discredit Plaintiff’s version of events, and

the Court is obligated to view the evidence in the light most favorable to Plaintiff. So

viewed, a reasonable jury could conclude that the level of force used by each officer was

unreasonable. See, e.g., Smith v. Stoneburner, 716 F.3d 926, 934 (6th Cir. 2013) (finding

a factual issue as to whether an officer’s collision with the plaintiff’s mother was an

inadvertent bump or whether the officer gratuitously shoved the mother against the

house, and holding that this factual issue “ma[de] a difference” with respect to the

mother’s excessive-force claim).

Likewise, the Court cannot say as a matter of law that the officers’ use of force,

resulting in extensive bruising and other injuries to Plaintiff, was de minimis. See Small

v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013) (holding that tackling that resulted in

cuts on an individual’s face that did not require stitches was more than de minimis force);

Burbridge, 2 F.4th at 781 (where the court was unable to clearly see from video evidence

that an officer’s involvement was limited to kneeling on a protestor’s legs, the court

could not say that the officer’s use of force was de minimis as a matter of law).

Additionally, the constitutional rights at issue in this case were clearly established.

On this prong, Plaintiff’s burden is not to “show that the very action in question has

6 “Accidental force” does not qualify as a seizure under the Fourth Amendment.

See Torres v. Madrid, 141 S. Ct. 989, 998 (2021). However, Defendants do not dispute

that a seizure took place here, and Plaintiff was in fact subsequently arrested.

previously been held unlawful,” but only to show “that the unlawfulness was apparent in

light of preexisting law.” Ellison v. Lesher, 796 F.3d 910, 914 (8th Cir. 2015) (citation

and internal quotation marks omitted).

Under Eighth Circuit precedent, it was “clearly established” at the time of the

events here that the “gratuitous” use of force “against a suspect who is handcuffed, not

resisting, and fully subdued [was] objectively unreasonable under the Fourth

Amendment.” Krout v. Goemmer, 583 F.3d 557, 566 (8th Cir. 2009); see also Small, 708

F.3d at 1005 (holding that it was a clearly established violation of Fourth Amendment

rights to run toward and tackle an individual from behind without warning, when the

individual was charged with a nonviolent misdemeanor and was not an immediate threat,

in flight, or resisting arrest); Mitchell, 28 F.4th at 898 (“[W]e have held time and again

that, if a person is not suspected of a serious crime, is not threatening anyone, and is

neither fleeing nor resisting arrest, then it is unreasonable for an officer to use more

than de minimis force against him.”). Controlling precedent similarly indicates that

unlawfulness is clearly established where law enforcement agents “strike a nonviolent

person who had committed no crime, who was not fleeing or resisting arrest, [and] who

posed little to no threat to anyone’s safety . . . .” Burnikel v. Fong, 886 F.3d 706, 712

(8th Cir. 2018).

A reasonable jury could conclude from the evidence that the named officers

pushed Plaintiff to the ground, crushed her with a shield, and kicked her on the ground,

after she had been pepper sprayed without warning and while she posed no threat or

resistance. A reasonable officer would have understood that these actions would violate

clearly established constitutional rights. Accordingly, the remaining named Defendant

officers are not entitled to qualified immunity on Count IV.

B. Official Immunity for State-Law Claims (Counts III and V)

“The doctrine of official immunity ‘protects public employees from liability for

alleged acts of negligence committed during the course of their official duties for the

performance of discretionary acts.’” Wealot v. Brooks, 865 F.3d 1119, 1129 (8th Cir.

2017) (quoting Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. 2008)). In

Missouri, the general rule is that “official immunity applies to all discretionary acts

except those done in bad faith or with malice.” State ex rel. Twiehaus v. Adolf, 706

S.W.2d 443, 446 (Mo. 1986).

Bad faith or malice means “an actual intent to cause injury,” or “conduct which is

so reckless or wantonly and willfully in disregard of one’s rights that a trier of fact could

infer from such conduct bad faith or any improper or wrongful motive.” Id. at 447. The

parties correctly acknowledge that the official acts in this case are discretionary. See

Wealot, 865 F.3d at 1129 (“The use of force is a discretionary duty.”). Therefore, the

remaining named Defendant officers are entitled to official immunity on Plaintiff’s

claims for negligent infliction of emotional distress (Count III) and battery (Count V)

unless Plaintiff can show they acted in bad faith or with malice.

Viewed in the light most favorable to the Plaintiff, the evidence shows that the

Defendant officers shoved Plaintiff to the ground and then kicked her once she had fallen.

As discussed above, a reasonable jury could interpret the evidence to conclude that each

of the Defendants personally participated in the use of excessive force against Plaintiff.

A reasonable jury could also conclude from this evidence that the officers engaged in

conduct “so reckless or wantonly and willfully in disregard of [Plaintiff’s] rights” that it

permits an inference of bad faith. Wealot, 865 F.3d at 1129. Thus, these officers are not

entitled to official immunity on Counts III or V, and the Court will deny their motion for

summary judgment on those Counts. 7

IV. Claims Against The City

The Court next addresses the claims against the City for municipal liability under

federal law (Count II), and for negligent infliction of emotional distress (Count III) and

battery (Count V) under state law. With respect to the federal claim in Count II, the

Court concludes that the City is entitled to summary judgment because Plaintiff’s

evidence fails to create a genuine dispute of material fact as to the City’s liability under

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). With

respect to the state-law claims against the City in Counts III and V, the Court will decline

to exercise supplemental jurisdiction and will dismiss those claims without prejudice and

without reaching Defendants’ summary judgment arguments.

A. Municipal Liability under § 1983 (Count II)

“A municipality or other local government may be liable under [§ 1983] if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a

7 In their reply brief, Defendants also argue that Plaintiff’s negligent infliction of

emotional distress claim fails because it is duplicative of Plaintiff’s battery claim. See

ECF No. 88 at 9. The Court does not consider this argument as it was raised for the first

time in a reply brief. See Green v. Missouri, 734 F. Supp. 2d 814, 848 (E.D. Mo.

2010) (“As a general rule, courts will not consider arguments raised for the first time in

a reply.”).

person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60

(2011) (citing Monell, 436 U.S. at 692). For a municipality to be liable under § 1983, the

plaintiff must establish that some “action pursuant to official municipal policy” caused

their injury. Monell, 436 U.S. at 691. This causal requirement demands that the

municipality only be liable where the official policy is “the moving force of the

constitutional violation . . . .” Id. at 694. “Official municipal policy includes the

decisions of a government's lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law.” Connick,

563 U.S. at 61.

1. Failure to Train and Supervise

Plaintiff maintains that the City is liable under § 1983 for its failure to train and

supervise its officers.8 To overcome the city’s motion for summary judgment, Plaintiff

must demonstrate a genuine dispute of material fact as to whether “(1) [the City’s]

officer-training practices were inadequate; (2) [the City] was deliberately indifferent to

the rights of others in adopting these training practices, and (3) [the City’s] alleged

training deficiencies caused [Plaintiff’s] constitutional deprivation.” Ulrich v. Poe

County, 715 F.3d 1054, 1061 (8th Cir. 2013). Deliberate indifference requires “that a

municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cty.

Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997).

8 Although the parties discuss the failure to train and failure to supervise claims

separately, both claims are governed by a similar standard. See Robinette v. Jones, 476

F.3d 585, 591 (8th Cir.2007).

Plaintiff relies on evidence of the City’s failure to comply with the Templeton

settlement’s restrictions on the use of chemical agents and failure to train officers with

respect to the settlement’s terms. However, the settlement terms on which Plaintiff relies

expressly do not apply when “persons at the scene present an imminent threat of bodily

harm to persons or damage to property, and when law enforcement officials must defend

themselves or other persons or property against such imminent threat.” See ECF No. 75-

6, Pl.’s Ex. 6, Templeton Settlement Agreement).

The undisputed facts demonstrate that persons present at the scene here were

throwing water bottles and pieces of concrete at officers, presenting an imminent threat of

bodily harm. Therefore, the Templeton settlement did not apply in the circumstance of

this case, and any failure with respect to training on the settlement could not have caused

Plaintiff’s injuries.9 See Laney v. City of St. Louis, Missouri, No. 4:18 CV 1575 CDP,

2021 WL 4439252, at *9 (E.D. Mo. Sept. 28, 2021) (“[R]egardless of the training,

supervision, and disciplinary practices of the SLMPD or the City, [the defendant officer]

did not violate the terms of the Templeton agreement in the circumstances of this case

and thus his conduct did not give rise to the constitutional deprivation [plaintiff]

alleges.”).10

9 Moreover, the Templeton settlement applies only to the use of chemical agents.

Plaintiff’s injuries allegedly result from more than just pepper spray, and the Templeton

settlement does not address the other types of force at issue here.

10 Nor does the other evidence relied upon by Plaintiff, such as officers’ failure to

document the use of force against Plaintiff in this case or the largely immaterial

testimony of retired Sergeant Heather Taylor, create a genuine issue of material fact with

respect to the City’s failure to investigate or supervise misconduct. See Pineda v.

2. Custom of Permitting the Use of Excessive Force

Plaintiff further asserts that the City is liable under § 1983 for maintaining a

custom which permits officers to use excessive force. Where a Monell claim depends

upon the existence of a custom, “liability may be established through proof that the

alleged misconduct was so pervasive among the non-policy making employees of the

municipality as to constitute a ‘custom or usage’ with the force of law.” McGautha v.

Jackson Cnty., Mo., Collections Dep't, 36 F.3d 53, 56 (8th Cir.1994) (citation omitted).

A custom or usage which is sufficient to constitute official policy is demonstrated by:

(1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s employees;

(2) Deliberate indifference to or tacit authorization of such conduct by the

governmental entity’s policymaking officials after notice to the officials of

that misconduct; and

(3) Th[e] [plaintiff’s] injur[y] by acts pursuant to the governmental entity’s

custom, i.e., [proof] that the custom was the moving force behind the

constitutional violation.

Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis Cty., 901 F.2d

642, 646 (8th Cir. 1990). Multiple incidents of similar police misconduct may show

evidence of a custom “if some evidence indicates that the incidents occurred over a

course of time sufficiently long enough to permit notice of, and then deliberate

indifference to or tacit authorization of, the conduct by policymaking officials.” Johnson

v. Douglas County Medical Dept., 725 F.3d 825, 829 (8th Cir. 2013).

Hamilton Cty., Ohio, 977 F.3d 483, 495 (6th Cir. 2020) (“[A] claim based on inadequate

investigation requires not only an inadequate investigation in this instance, but also a

clear and persistent pattern of violations in earlier instances.”) (citation omitted).

Plaintiff’s single reference to the Ahmad transcript regarding prior incidents in

which SLMPD officers used pepper spray without warning on protestors fails to

constitute reliable evidence of a City custom of permitting the use of excessive force that

caused Plaintiff’s injuries.11 The excerpts of witness testimony in the transcript, while

concerning, only briefly address the 2015 and 2017 incidents and do not provide the

details necessary to evaluate their similarity to the current one, which, as noted above, is

not limited to SLMPD’s the use of pepper spray. See Thiel v. Korte, 954 F.3d 1125, 1129

(8th Cir. 2020) (“Though Thiel alludes to prior complaints against Baker and Minor, he

fails to provide the details necessary for us to determine whether these complaints were

sufficiently numerous, or involved conduct sufficiently similar to what is alleged here, to

make out the existence of an actionable custom.”); see also Mettler v. Whitledge, 165

F.3d 1197, 1205 (8th Cir.1999) (requiring “detailed and compelling” evidence of a

custom). Nor are the excerpts sufficient to evaluate whether the prior complaints of

excessive force had merit. See Rogers v. City of Little Rock, 152 F.3d 790, 799 (8th Cir.

1998) (requiring a showing that prior complaints had merit in order to prove a custom).

Moreover, according to Plaintiff’s own evidence, the City did not simply ignore

the alleged misconduct but entered into a settlement agreement (the Templeton

11 Plaintiff also cites the other lawsuits arising out of the Stockley protests as

evidence of a City custom. But these lawsuits relate to incidents that occurred on the

same day or weekend as the incident in this case. As such, they could not give the City

sufficient notice. See Burbridge v. City of St. Louis, Missouri, 430 F. Supp. 3d 595, 620

(E.D. Mo. 2019), aff’d, 2 F.4th 774 (8th Cir. 2021) (finding that other incidents during

the weekend of the Stockley protests could not evidence a custom).

settlement) specifically addressing the prior alleged misuse of chemical agents in the

context of protests. Finally, for the reasons stated above, any failure with respect to

implementing the Templeton settlement was not the “moving force” behind the

constitutional violation here. For all of these reasons, the Court will grant summary

judgment in favor of the City on Count II.

B. Sovereign Immunity on State-Law Claims (Counts III and V)

“Sovereign immunity is the privilege of the sovereign not to be sued without its

consent.” Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011).

“[I]n the absence of an express statutory exception to sovereign immunity, or a

recognized common law exception . . . sovereign immunity is the rule and applies to all

suits against public entities.” Metro. St. Louis Sewer Dist. v. City of Bellefontaine

Neighbors, 476 S.W.3d 913, 921–22 (Mo. 2016). “Courts ‘give effect’ to a state’s waiver

of sovereign immunity ‘only where stated by the most express language or by such

overwhelming implication from the text as [will] leave no room for any other reasonable

construction.’” Church v. Missouri, 913 F.3d 736, 743 (8th Cir. 2019) (quoting Port

Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990)). As the Supreme Court

of Missouri has emphasized, “[s]overeign immunity is the rule, not the exception.”

Bellefontaine, 476 S.W.3d at 914.

Missouri law provides that the state and its political subdivisions may waive

sovereign immunity through the “purchase [of] liability insurance for tort claims.” Mo.

Rev. Stat. § 537.610.1. Sovereign immunity is waived in such circumstances “only to the

maximum amount of and only for the purposes covered by such policy of insurance . . .

and for such purposes provided in any self-insurance plan duly adopted by the governing

body of any political subdivision of the state.” Mo. Rev. Stat. § 537.610.1. Plaintiff

argues that the city has waived sovereign immunity under § 537.610 through the creation

of the PFPC, which she alleges functions like a self-insurance program for the City.

The question of whether the City has waived sovereign immunity through its

relationship with PFPC is one of first impression under Missouri law. The Missouri

Court of Appeals briefly addressed this issue in only one case, in a very recent decision

that was grounded in the particular evidence presented. See Hendrix v. City of St. Louis,

636 S.W.3d 889, 900–01 (Mo. Ct. App. 2021) (affirming circuit court’s grant of

summary judgment to the City on the grounds that the City had not waived sovereign

immunity on plaintiff’s negligent supervision and training claims). But the issue has

never been addressed by the Supreme Court of Missouri.

Federal courts are hesitant to exercise supplemental jurisdiction over novel,

complex, and important issues of state law such as this one, on which the state appellate

courts have provided little or no guidance. See 28 U.S.C. § 1367(c)(1); Fielder v. Credit

Acceptance Corp., 188 F.3d 1031, 1038 (8th Cir. 1999) (“[N]ovel, complex, and

important issues of state law on which the [state] appellate courts have given us little or

no prior guidance . . . are precisely the types of issues as to which federal courts should

hesitate to exercise § 1367 supplemental jurisdiction.”). The Court will thus decline to

exercise supplemental jurisdiction over Plaintiff’s state-law claims against the City in

Counts III and V, and the Court will dismiss those claims without prejudice. See Laney,

2021 WL 4439252, at *12; Franks v. City of St. Louis, No. 4:19 CV 2663 RWS, 2022

WL 1062035, at *11 (E.D. Mo. Apr. 8, 2022) (both holding the same with respect to a

similar sovereign immunity argument).

V. Remaining John Doe Defendants

As noted above, this case has been pending for nearly three years, the Court has

granted Plaintiff’s requests for assistance in identifying the Doe Defendants, discovery is

now complete, and the case is ready for trial. “Fictitious parties must eventually be

dismissed, if discovery yields no identities.” Burbridge, 430 F. Supp. 3d at 609 (citing

Kemper Ins. Companies, Inc. v. Fed. Exp. Corp., 115 F. Supp. 2d 116, 125 (D. Mass.

2000)). Thus, the Court will require Plaintiff to show cause in writing why the Doe

Defendants should not be dismissed.

CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendants’ motion for summary judgment is

GRANTED in part and DENIED in part. ECF No. 63. The motion is GRANTED as

to Counts I and II; the motion is otherwise DENIED.

IT IS FURTHER ORDERED that Court declines to exercise supplemental

jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s claims against the City of St. Louis,

Missouri in Counts III and V; those claims are DISMISSED without prejudice to the

extent asserted against the City.

IT IS FURTHER ORDERED that Plaintiff shall, no later than 7 days from the

date of this Memorandum and Order, show cause in writing why the Doe Defendants

should not be dismissed. Failure to comply with this Order will result in the dismissal of

the Doe Defendants.

IT IS FURTHER ORDERED that the parties shall meet and confer with respect

to a trial setting and, no later than 14 days from the date of this Memorandum and Order,

file a joint notice advising the Court of their proposed schedule for trial or otherwise

advising the Court as to the status of the case.

orf

UNITED STATES DISTRICT JUDGE

Dated this 22nd day of April, 2022.

31