Brandy v. City of Saint Louis, Missouri

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

AMIR BRANDY, )

)

Plaintiff, )

)

v. ) No. 4:18CV1674 JCH

)

CITY OF ST. LOUIS, MISSOURI, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendant/Cross-Claimant William Olsten’s Motion

for Summary Judgment, Defendants City of St. Louis and Commissioner John Hayden’s Motion

for Summary Judgment, and Defendant City’s Motion to Dismiss or Stay Cross-Claim. (ECF

Nos. 112, 115, 130). The motions are fully briefed and ready for disposition.

BACKGROUND1

This case arises out of a protest in St. Louis, Missouri. The protest followed

the acquittal in the criminal case of former St. Louis Metropolitan Police Department

(“SLMPD”) Officer Jason Stockley. The Stockley verdict, which acquitted Officer Stockley of

first-degree murder, was released on September 15, 2017. (Defendant/Cross-Claimant William

Olsten’s Statement of Uncontroverted Material Facts in Support of his Motion for Summary

Judgment (“Olsten’s Facts”), ¶ 1; Statement of Uncontroverted Material Facts in Support of

Motion for Summary Judgment of Defendants City and Hayden (“City’s Facts”), ¶ 9). In

response to the verdict, many people in St. Louis began to protest in various locations around the

1 The information in this section is taken primarily from Defendants’ statements of

uncontroverted material facts and Plaintiff’s statements of additional uncontroverted material

facts, to the extent the facts are supported by admissible evidence and not specifically

controverted by the opposing party as required by Local Rule 7-4.01(E).

released and continued for more than a month. (City’s Facts, ¶ 11). At times, the protests grew

violent in nature and required a more significant response from the SLMPD. (Id., ¶¶ 15–17,

19).2 At other times, the protests were peaceful. (Id., ¶¶ 23-24).

On September 29, 2017, a protest took place in downtown St. Louis near

Busch Stadium. (Olsten’s Facts, ¶ 5; City’s Facts, ¶ 31). During the protest, officers from the

SLMPD’s special operations unit blocked off a road near the stadium to allow protesters to

march in the street. (Olsten’s Facts, ¶ 11; City’s Facts, ¶ 33). At one point, as the line of

protesters began to thin, officers stopped the remaining protesters to allow vehicles to move

through an intersection so backed up traffic could flow. (Olsten’s Facts, ¶ 12; City’s Facts, ¶

34). Altercations ensued shortly thereafter between officers and protesters, resulting in the use of

a taser on one protestor and two arrests. (Olsten’s Facts, ¶¶ 13–16; City’s Facts, ¶¶ 35–36).3

Officer Olsten was not involved in the altercations between the officers and protesters,

but he did help escort one of the arrested protesters away from the scene. (Olsten’s Facts, ¶¶ 17,

19). Plaintiff, who witnessed the two arrests, immediately began shouting at the officers. (City’s

Facts, ¶ 37). Other protesters hurried to the area of the arrest after the tasing. (Id., ¶ 38). Officer

Olsten was holding a pepper spray fogger at the time and gave protesters at least two directives

to get back. (Olsten’s Facts, ¶ 20; Olsten’s Ex. F, Maverick Video at 00:01:22:00–00:01:25:00).

Other officers gave similar directives. (Id. at 00:01:17:00–00:01:25:00).

2 Plaintiff does not dispute that during the weekend of September 15-17, St. Louis police officers

were injured, some seriously. (City’s Facts, ¶ 22).

3 At the time of the events giving rise to this lawsuit, Officer Olsten and Commissioner Hayden

were on duty as members of the SLMPD. Officer Olsten was a member of the SLMPD’s special

operations unit, and Commissioner Hayden was a Major. (Olsten’s Facts, ¶ 6; City’s Facts, ¶ 8).

Commissioner Hayden was the scene commander at the time because he was the

highest-ranking officer on the scene. (Olsten’s Facts, ¶ 6).

yelled: “If you put that s*** in my face, I’ll f*** you up.” (Plaintiff’s Statement of Additional

Uncontroverted Material Facts--Olsten (“Plaintiff’s Additional Facts--Olsten”), ¶ 46; City’s

Facts, ¶ 39 and Plaintiff’s response thereto; Maverick Video at 00:01:25:00). At one point,

Officer Olsten stepped toward Plaintiff and responded: “Come f*** me up then.” (Olsten’s

Facts, ¶ 29; Plaintiff’s Additional Facts--Olsten, ¶ 48; Maverick Video at 00:01:26:00-

00:01:31:00). Two officers put their hands on Officer Olsten at that point to keep him moving.

(Plaintiff’s response to Olsten’s Facts, ¶ 31; Maverick Video at 00:01:28:00).4

After Officer Olsten handed the arrested protester off, he remained in the area. Sergeant

Eric Bartlett and Commissioner Hayden were also in the area at the time. (Plaintiff’s Statement

of Additional Facts—City (“Plaintiff’s Additional Facts—City”), ¶ 27). By this point, Plaintiff

had stopped moving toward Officer Olsten. The parties dispute the exact distance that remained

between Plaintiff and Officer Olsten. (See Olsten’s Facts, ¶ 33 and Plaintiff’s response thereto).

However, video evidence shows that Plaintiff and Officer Olsten were only a few feet apart and

standing face-to-face. (Olsten’s Ex. H, De Mian Video at 00:01:19:00–00:01:24:00). Plaintiff

and Officer Olsten were standing so close to one another, in part, because Officer Olsten had

walked toward Plaintiff after handing off the arrested protester. (Id. at 00:01:15:00–

00:01:19:00).

While Plaintiff and Officer Olsten stood face-to-face, they continued to engage

with one another. Plaintiff once again said: “Put that s*** in my face.” (Maverick

Video at 00:01:43:00–00:01:45:00). Officer Olsten responded: “Dude, back up.” (Olsten’s

Facts, ¶ 31; Maverick Video at 00:01:44:00–00:01:45:00). Plaintiff also called Officer Olsten a

“p**** a** white boy.” (City’s Facts, ¶ 39; Maverick Video at 00:01:47:00–00:01:48:00).

4 Defendants City and Hayden claim only one officer put his hands on Officer Olsten. (See City

and Hayden’s response to Plaintiff’s Additional Facts--City, ¶ 24).

questioned him about the earlier use of a taser on the arrested protester. (Maverick Video at

00:01:48). Officer Olsten responded: “I didn’t tase him.” (Id. at 00:01:52).

As Plaintiff and Aldridge engaged with Officer Olsten, a female protester

yelled something from the crowd. According to Defendants, the protester yelled: “Shoot this

motherf***er [possibly back]!” According to Plaintiff, the protester yelled: “Shut this

motherf***er down.” (See Olsten’s Facts, ¶ 35; City’s Facts, ¶ 42 and Plaintiff’s responses

thereto). In either case, immediately thereafter Officer Olsten deployed pepper spray toward the

protesters for several seconds as he walked in their direction. (Olsten’s Facts, ¶ 36; City’s Facts,

¶ 43; Maverick Video at 00:01:56).5 Plaintiff was within a few feet of Officer Olsten when he

was sprayed. (City’s Facts, ¶ 45). Commissioner Hayden was standing near Officer Olsten

when he deployed pepper spray. (Id., ¶ 49).6 Defendants maintain his back was turned at the

time; Plaintiff counters that Commissioner Hayden can be seen turning toward Officer Olsten as

soon as he begins pepper spraying the civilians. (Id. and Plaintiff’s response thereto). It is

undisputed that Commissioner Hayden did not give Officer Olsten or any other officer an order

to deploy pepper spray. (Id., ¶ 48).

After Officer Olsten deployed pepper spray, none of the protesters who were affected was

arrested. (Plaintiff’s Additional Facts--Olsten, ¶ 62). Nor did Officer Olsten or other officers

attempt to make any arrests.7

5 Officer Olsten presents evidence that Sergeant Bartlett believed he and other officers were

about to be physically harmed, and that had Officer Olsten not deployed his pepper mace to

disburse the crowd, Sergeant Bartlett would have done so. (Olsten’s Facts, ¶¶ 37, 38).

6 Defendants claim that Commissioner Hayden was radioing for assistance at or about the time

Officer Olsten deployed pepper spray. (City’s Facts, ¶ 50).

7 According to Officer Olsten, Sergeant Bartlett determined it would not be safe or practical to

make further arrests due to the large and hostile nature of the crowd. (Olsten’s Facts, ¶ 39).

his Second Amended Complaint, filed August 9, 2019, Plaintiff lodges the following claims:

First and Fourteenth Amendment violations against Defendants Hayden and Olsten (Count I);

Municipal Liability Monell8 claim against Defendant City (Count II); negligent infliction of

emotional distress against all Defendants (Count III); Fourth and Fourteenth Amendment

violation (excessive force) against Defendant Olsten (Count IV); Fourth and Fourteenth

Amendment violation (failure to intervene) against Defendant Hayden (Count V); and battery

against all Defendants (Count VI). (ECF No. 35).

On September 19, 2019, Officer Olsten filed a crossclaim in this lawsuit against the City

for reimbursement of all expenses and attorneys’ fees incurred by him in defending

against Plaintiff’s claims and payment of any damages and costs awarded to Plaintiff.

(ECF No. 45). In his original crossclaim, Officer Olsten alleged that the City was obligated to

defend him against Plaintiff’s claims and indemnify him against any damages awarded

to Plaintiff pursuant to City Ordinance § 3.10.040(H) and SLMPD Special Order 3-

05, § XXII(A). Officer Olsten filed an amended crossclaim on September 7, 2021,

adding a third basis for the City’s obligation to defend and indemnify him: Mo. Rev.

Stat. § 590.502.7. (ECF No. 53).

SUMMARY JUDGMENT STANDARD

The Court may grant a motion for summary judgment if, “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The substantive law determines which facts are critical and which are irrelevant. Only disputes

8 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978).

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party. Id.

A moving party always bears the burden of informing the Court of the basis of its motion.

Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party

must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material

fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,

477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its

pleadings. Anderson, 477 U.S. at 256.

In passing on a motion for summary judgment, the Court must view the facts in the light

most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.

Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine

whether there is a genuine issue for trial. Id. at 249.

DISCUSSION

I. Qualified Immunity

United States District Judge Rodney W. Sippel of this Court recently provided a detailed

analysis of the doctrine of qualified immunity, which the Court quotes at length here:

Qualified immunity protects a government official from liability “unless

the official’s conduct violated a clearly established constitutional or

statutory right of which a reasonable person would have known.”

Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The standard “gives ample room

for mistaken judgments by protecting all but the plainly incompetent or

those who knowingly violate the law.” Walker v. City of Pine Bluff, 414

F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant, 502 U.S. 224,

229 (1991)).

To determine whether an official is entitled to qualified immunity, the

Court asks the following two-part question: (1) whether the facts alleged,

viewed in the light most favorable to the plaintiff, show that the defendant

violated a constitutional or statutory right, and (2) whether the right at

v City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citing Saucier

v. Katz, 533 U.S. 194, 201 (2001)). The Court may decide which

determination to make first, Pearson v. Callahan, 555 U.S. 223, 235-36

(2009), and “the defendants are entitled to qualified immunity unless the

answer to both of these questions is yes.” McCaster v. Clausen, 684 F.3d

740, 746 (8th Cir. 2012).

“A right is clearly established when the contours of the right are

sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Mathers v. Wright, 636 F.3d 396, 399 (8th

Cir. 2011) (internal quotation marks and citation omitted). “A general

constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even though the very

action in question has not previously been held unlawful.” Winslow v.

Smith, 696 F.3d 716, 738 (8th Cir. 2012) (internal quotations marks and

citation omitted). “The unlawfulness must merely be apparent in light of

preexisting law, and officials can still be on notice that their conduct

violates established law even in novel factual circumstances.” Nelson v.

Correctional Medical Services, 583 F.3d 522, 531 (8th Cir. 2009) (internal

quotation marks and citation omitted).

Smalley v. Gamache, No. 4:10CV319 RWS, 2013 WL 1149146, at *2 (E.D. Mo. Mar. 19, 2013).

A. First Amendment

In Count I of his Second Amended Complaint, Plaintiff asserts claims against Officer

Olsten and Commissioner Hayden under § 1983 for violating his First Amendment rights.

Plaintiff alleges that Officer Olsten pepper sprayed him in retaliation for exercising his First

Amendment rights to associate freely in public, express his views as part of a peaceful

demonstration, and gather information regarding a matter of public interest. (Second Amended

Compl., ¶¶ 73-76). Plaintiff alleges that Commissioner Hayden, Officer Olsten’s supervisor at

the time, was standing near Officer Olsten when he pepper sprayed Plaintiff but took no steps to

prevent him from doing so. (Id., ¶¶ 56, 66).

1. Officer Olsten

Officer Olsten contends that summary judgment should be entered in his favor

on Plaintiff’s First Amendment retaliation claim because he is entitled to qualified

Plaintiff’s claim is based on his alleged use of excessive force, and there is insufficient

evidence to support a finding that he used excessive force. In Officer Olsten’s view,

the evidence is insufficient to support such a finding because there is no evidence that he

intended to pepper spray Plaintiff individually. Officer Olsten also argues that he did not violate

a clearly established right.

In his opposition, Plaintiff asserts that Officer Olsten is not entitled to qualified immunity

because a reasonable jury could find that he pepper sprayed Plaintiff in a gratuitous and punitive

manner for exercising his First Amendment rights. Plaintiff argues that a jury could conclude

that Officer Olsten’s use of pepper spray was unnecessary and excessive because, when he was

pepper sprayed, Plaintiff was peacefully protesting and not acting in a threatening or violent

manner. Plaintiff also cites several cases to show that his First Amendment rights were clearly

established at the time of Officer Olsten’s alleged misconduct.

An individual’s right to exercise First Amendment rights without facing retaliation from

government officials was clearly established in 2017, as the issue was addressed by the Eighth

Circuit in 2010. See Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (quoting

Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007)) (“A citizen’s right to exercise First

Amendment freedoms ‘without facing retaliation from government officials is clearly

established.’”). As a result, the question here is whether a reasonable jury could find that Officer

Olsten violated this right when he deployed pepper spray during the protest on September 29,

2017.

To establish a claim for First Amendment retaliation, a 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

754 F.3d 594, 602 (8th Cir. 2014) (internal quotation marks and citations omitted). The third

element requires a plaintiff to present evidence of “a causal connection between the retaliatory

animus and injury.” Quraishi v. St. Charles County, Mo., 986 F.3d 831, 837 (8th Cir. 2021)

(citation omitted). A plaintiff must show that “the retaliatory motive was a ‘substantial factor’

or ‘but-for cause’ of the adverse action.” Peterson, 754 F.3d at 602. This requires a showing

that the plaintiff was “‘singled out because of [his] exercise of constitutional rights.’” Id.

(quoting Baribeau, 596 F.3d at 481).

As an initial matter the Court notes that, although Plaintiff states that his claim is based

on Officer Olsten’s use of excessive force, the issue presented is not whether Officer

Olsten’s deployment of pepper spray constituted “excessive force” as that phrase is

understood in the Fourth Amendment context.9 This is because “retaliatory conduct does not

itself need to be a constitutional violation in order to be actionable.” Cody v. Weber, 256 F.3d

764, 771 (8th Cir. 2001). “[T]he violation is acting in retaliation for ‘the exercise of a

constitutionally protected right.’” Spencer v. Jackson Cnty., Mo., 738 F.3d 907, 911 (8th Cir.

2013) (quoting Cody, 256 F.3d at 771). Therefore, with respect to Plaintiff’s First Amendment

retaliation claim, the Court need not determine whether Officer Olsten’s deployment of pepper

spray constituted excessive force. Instead, it must only determine whether a reasonable jury

could find that: (1) Plaintiff engaged in protected activity, (2) Officer Olsten’s deployment of

pepper spray was an adverse action taken against Plaintiff that would deter an ordinary person

from continuing in protected activity, and (3) Officer Olsten’s deployment of pepper spray was

motivated at least in part by Plaintiff’s exercise of protected activity.

9 Plaintiff’s statement that his First Amendment retaliation claim is based on Officer Olsten’s

use of excessive force is understandable insofar as it clarifies that his claim is not based on a

retaliatory arrest. This clarification is important because, as Plaintiff correctly notes, a retaliatory

arrest claim requires proof of an additional element: lack of probable cause.

preclude the entry of summary judgment on this issue. For example, while participating in a

protest in public is generally a protected activity, a fact question remains as to whether with his

taunts Plaintiff crossed into unprotected territory, and the Court finds the question is best left to a

jury as factfinder. Furthermore, while the use of pepper spray may be an adverse action that

would deter an ordinary person from continuing in protected activity, a fact question remains as

to whether Officer Olsten’s deployment of pepper spray was motivated, even in part, by

Plaintiff’s engagement in a protected activity, or instead was prompted by Plaintiff’s potentially

unprotected activity or another cause altogether. This is especially true in light of the intervening

act of a third party, i.e., the female protester’s shout from the crowd. See Peterson, 754 F.3d at

603 (holding that the “causal connection”, i.e., retaliatory motive, is generally a jury question

unless it is so free from doubt as to justify taking it from the jury); Quraishi, 986 F.3d at 838

(“[Defendant’s] motive is not so free from doubt as to justify taking it from the jury.”). The

Court thus concludes that Officer Olsten is not entitled to summary judgment or qualified

immunity on Plaintiff’s First Amendment claim.

2. Commissioner Hayden

Commissioner Hayden also contends that summary judgment should be entered in his

favor on Plaintiff’s First Amendment retaliation claim because he is entitled to qualified

immunity. Commissioner Hayden argues that he is entitled to qualified immunity because there

is no evidence that he took any action or was otherwise personally involved in the use of force

against Plaintiff. He further asserts that he neither gave Officer Olsten an order to deploy pepper

spray, nor had any advanced notice that force was going to be used. Commissioner Hayden

claims that Officer Olsten deployed his pepper spray based on his personal judgment, while

Commissioner Hayden was dealing with a chaotic situation.

Hayden’s argument regarding his First Amendment retaliation claim. Instead, Plaintiff appears

to argue in support of his First Amendment retaliation claim and failure-to-intervene claim

(Count V) simultaneously. Plaintiff notes that Commissioner Hayden was the supervisor on the

scene when Officer Olsten deployed pepper spray, and he argues that Commissioner Hayden’s

failure to intervene and attempt to deescalate the situation amounted to tacit approval of Officer

Olsten’s behavior and served to encourage him. Plaintiff thus claims that Commissioner Hayden

failed in his duty to supervise and intervene.

As discussed above, there exists a fact question as to whether Officer Olsten retaliated

against Plaintiff for exercising his First Amendment rights. Even assuming there is sufficient

evidence to support a finding that Officer Olsten violated Plaintiff’s First Amendment rights,

however, Commissioner Hayden would still be entitled to qualified immunity.

“Section 1983 liability cannot attach to a supervisor merely because a

subordinate violated someone’s constitutional rights.” Otey v Marshall, 121 F.3d 1150, 1155 (8th

Cir. 1997) (citations omitted). Each officer, “‘his or her title notwithstanding, is only liable for

his or her own misconduct.’” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). A supervisor may be held liable for an inferior

officer’s constitutional violation only “‘if he directly participated in the constitutional violation,

or if his failure to train or supervise the offending actor caused the deprivation.’” Id. (quoting

Otey, 121 F.3d at 1155).

To establish liability for failure to supervise, a plaintiff must show that: (1) the

supervisor received notice of a pattern of unconstitutional acts committed by subordinates; (2)

the supervisor demonstrated deliberate indifference to or tacit authorization of the offensive acts;

(3) the supervisor failed to take sufficient remedial action; and (4) the supervisor’s failure

for failure to train, a plaintiff must show that the supervisor’s failure to train amounted to

deliberate indifference to the rights of persons with whom the police come into contact and

“actually caused” the plaintiff’s constitutional deprivation. Id.

Here, there is no evidence that Commissioner Hayden was personally involved in pepper

spraying Plaintiff, and Plaintiff has not come forward with sufficient evidence to support a claim

against him for failure to train or supervise. With respect to failure to supervise, Plaintiff has not

cited any other incidents as evidence that Commissioner Hayden, specifically, was on notice of a

pattern of unconstitutional acts committed by his subordinates. Instead, Plaintiff’s argument

regarding Commissioner Hayden focuses exclusively on the circumstances surrounding Officer

Olsten’s deployment of pepper spray during the protest on September 29, 2017. Plaintiff also

has not cited any evidence regarding Commissioner Hayden’s training practices or lack thereof,

as required for a failure-to-train claim.

In sum, even assuming there exists sufficient evidence to support a finding that Officer

Olsten violated Plaintiff’s First Amendment rights, Commissioner Hayden is still entitled to

qualified immunity because (1) there is no evidence that he personally was involved in pepper

spraying Plaintiff, and (2) Plaintiff has not come forward with sufficient evidence to support a

claim against him for failure to train or supervise. To the extent that Plaintiff’s First Amendment

retaliation claim against Commissioner Hayden is based on his alleged failure to intervene,

Commissioner Hayden is entitled to qualified immunity for the additional reasons discussed in

section I.C. For all of these reasons, summary judgment will be granted to Commissioner

Hayden on Count I of Plaintiff’s Second Amended Complaint.

B. Fourth Amendment Excessive Force

violated the Fourth Amendment, as his use of force against Plaintiff was objectively

unreasonable and constituted excessive force. (Second Amended Compl., ¶¶ 97-102). In order

to establish a Fourth Amendment violation, “the claimant must demonstrate a seizure occurred

and the seizure was unreasonable.” Quraishi, 986 F.3d at 839 (internal quotation marks and

citation omitted). “A Fourth Amendment seizure occurs when an officer restrains the liberty of

an individual through physical force or show of authority.” Id. (internal quotation marks and

citations omitted). Further, to be seized “a reasonable person would have believed that he was

not free to leave. But where police attempt a show of force and an individual does not submit,

the individual has not been seized.” Id. at 839-40 (internal quotation marks and citations

omitted).

In order to defeat the defense of qualified immunity in a Fourth Amendment excessive

force context, Plaintiff must demonstrate that his right to be free from Defendant’s particular use

of force was clearly established at the time of the incident. Shelton v. Stevens, 964 F.3d 747, 753

(8th Cir. 2020). “Qualified immunity protects all but the plainly incompetent or those who

knowingly violate the law.” Id. (internal quotation marks and citation omitted). Thus, “[e]ven

where an officer’s action is deemed unreasonable under the Fourth Amendment, he is entitled to

qualified immunity if a reasonable officer could have believed, mistakenly, that the use of force

was permissible…” Id. (citation omitted). “Use of excessive force is an area of the law in which

the result depends very much on the facts of each case.” Id. (internal quotation marks and

citation omitted). “While there does not have to be a case directly on point, existing precedent

must place the lawfulness of the particular action beyond debate.” Id. (internal quotation marks

and citation omitted). “A plaintiff need not show that the very action in question has previously

been held unlawful, but he must establish that the unlawfulness was apparent in light of

and citation omitted).

Upon consideration, the Court finds the Eighth Circuit’s opinion in Quraishi is

controlling and dispositive. In that case, a group of reporters with Al Jazeera America news

network was covering protests that followed the death of Michael Brown in Ferguson, Missouri.

Quraishi, 986 F.3d at 834. While they were preparing for a live broadcast, an officer with the St.

Charles County police department allegedly deployed a tear-gas canister against them without

probable cause. Id. The Eighth Circuit held that while such use would clearly violate the First

Amendment, it was not clearly established that the officer’s acts constituted a seizure under the

Fourth Amendment. Id. at 840 (“Neither the district court nor the reporters cite authority that

gave ‘fair warning’ to [Defendant] that deploying one canister of tear-gas was a seizure.”). As

such, the officer in Quraishi was entitled to qualified immunity on that claim. Id. at 839-40.

In the instant case, as in Quraishi, in order to establish a Fourth Amendment violation

Plaintiff must show that a seizure occurred, and again, to be seized, a reasonable person must

have believed that he was not free to leave. Id. at 839. See also Molina v. City of St. Louis, Mo.,

No. 4:17CV2498 AGF, 2021 WL 1222432, at *10 (E.D. Mo. Mar. 31, 2021). Even viewing the

facts in the light most favorable to Plaintiff, he cannot make such a showing. Instead, the

uncontroverted facts demonstrate (1) that Plaintiff was not arrested or detained in any capacity

on September 29, 2017; and (2) that neither Officer Olsten nor any other officer made any

attempt to arrest or detain Plaintiff that day. Furthermore, as the Court held in Quraishi, this

Court finds that at the time Officer Olsten deployed the pepper spray it was not clearly

Plaintiff’s Fourth Amendment claim.10

C. Fourth Amendment Failure To Intervene

In Count V, Plaintiff asserts a claim against Commissioner Hayden under §

1983 for failure to intervene in violation of the Fourth Amendment. Plaintiff alleges

that Commissioner Hayden knew or should have known that Officer Olsten posed a

threat to protesters, and that he would use excessive force in violation of their

constitutional rights. (Second Amended Compl., ¶ 110). Plaintiff alleges that Commissioner

Hayden had a duty to intervene and prevent Officer Olsten from violating his constitutional

rights, had sufficient time and opportunity to intervene, and failed to do so. (Id., ¶¶ 111–13).

Commissioner Hayden contends that summary judgment should be entered in his favor on this

claim because he is entitled to qualified immunity.

“[A]n officer who fails to intervene to prevent the unconstitutional use of

excessive force by another officer may be held liable for violating the Fourth

Amendment.” Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015)

(internal quotation marks and citation omitted). The Eighth Circuit has not, however, recognized

an officer’s duty to intervene to prevent other constitutional violations. Livers v. Schenck, 700

F.3d 340, 360 (8th Cir. 2012); Zorich v. St. Louis Cnty., No. 4:17-CV-1522-PLC, 2018 WL

6621525, at *24 (E.D. Mo. Dec. 18, 2018). The Eighth Circuit has also held that “there is no

clearly established law regarding a duty to intervene outside of the excessive force context.”

10 The Court notes that in Count IV of his Second Amended Complaint, Plaintiff fails to allege

he was seized in the first instance. Instead, he frames his claim simply in terms of excessive

force. (See Second Amended Compl., ¶¶ 97-102). In the Fourth Amendment context, however,

force is examined as an aspect of the seizure. See e.g., Chambers v. Pennycook, 641 F.3d 898,

906 (8th Cir. 2011) (internal quotation marks and citations omitted) (“The determination whether

the force used to effect a seizure was reasonable ultimately requires a case-specific balancing of

the nature and quality of the intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.”).

1052 (8th Cir. 2013)).

As discussed above, Officer Olsten is entitled to qualified immunity on Plaintiff’s

excessive force claim because the record does not support a finding that Plaintiff was seized, and

it was not clearly established in 2017 that use of pepper spray alone was a seizure. Because a

failure-to-intervene claim is dependent on an excessive force claim, Commissioner Hayden is

entitled to qualified immunity on Plaintiff’s failure-to-intervene claim. To the extent that

Plaintiff’s failure-to-intervene claim is based on Commissioner Hayden’s alleged failure to

intervene to prevent Officer Olsten from retaliating against him in violation of the First

Amendment, Commissioner Hayden is entitled to qualified immunity because there was no

clearly established law regarding such a duty in 2017. Accordingly, summary judgment will be

granted to Commissioner Hayden on Count V.

II. Municipal Liability For First Amendment Retaliation11

For § 1983 liability to attach to a governmental entity, a plaintiff must show that a

constitutional violation resulted from (1) an official policy, (2) an unofficial custom, or (3) a

deliberately indifferent failure to train or supervise. Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir.

2018). In order to prove a municipal custom, Plaintiff must demonstrate: “(1) a continuing,

widespread, persistent pattern of unconstitutional misconduct; (2) deliberate indifference to or

tacit authorization of such conduct by the governmental entity’s policymaking officials after

notice of the misconduct; and (3) that the plaintiff was injured as a result of the custom.”

11 To the extent Plaintiff asserts a claim for municipal liability under the Fourth Amendment,

that claim fails with the grant of summary judgment to Defendants Olsten and Hayden on Counts

IV and V. See Corwin v. City of Indep., Mo., 829 F.3d 695, 700 (8th Cir. 2016) (internal

quotation marks and citation omitted) (“[I]n order for municipal liability to attach, individual

liability first must be found on an underlying substantive claim.”).

1146 (E.D. Mo. 2016)).

To state a viable § 1983 claim against Defendant City for failure to train and supervise,

Plaintiff must plead facts sufficient to show that (1) the City’s officer training and supervision

practices were inadequate; (2) the City was deliberately indifferent to the rights of others in

adopting these training and supervision practices, and the City’s failure to train and supervise was

a result of deliberate and conscious choices it made; and (3) the City’s alleged training and

supervision deficiencies caused Plaintiff’s constitutional deprivation. See Ulrich v. Pope

County, 715 F.3d 1054, 1061 (8th Cir. 2013). Ultimately, Plaintiff must prove that the City

“had notice that the training procedures and supervision were inadequate and likely to

result in a constitutional violation.” Brewington v. Keener, 902 F.3d 796, 803 (8th Cir. 2018)

(internal quotation marks and citation omitted). Plaintiff may establish City notice of a

deficiency in its procedures in one of two ways:

First, notice may be implied where failure to train officers or employees is so

likely to result in a violation of constitutional rights that the need for training is

patently obvious….The second avenue for asserting a failure to train claim arises

where the need for additional training may not be obvious from the outset, but a

pattern of constitutional violations could put the municipality on notice that its

employees’ responses to a regularly recurring situation are insufficient to protect

the constitutional rights of its citizens.

Thelma D. By and Through Delores A. v. Board Of Educ. Of City of St. Louis, 934 F.2d 929, 934-

35 (8th Cir. 1991) (citations omitted).

In Count II of his Second Amended Complaint, Plaintiff alleges that Defendant City is

liable to Plaintiff because the violations were caused by a custom and/or the City’s failure to

train or supervise. (Second Amended Compl., ¶¶ 82-89). Plaintiff claims that among the

policies, practices, or customs that caused constitutional harm to Plaintiff are the following:

A. SLMPD officers’ routine use of excessive force when policing

protests, especially those at which police brutality is being protested;

dispersal orders without giving an opportunity to comply;

C. SLMPD’s policy of arbitrarily declaring unlawful assemblies in the

absence of any threat or force or violent activity that provides no

notice to citizens [of] unlawful conduct;

D. Additionally, SLMPD has a custom, policy, or practice of violating the

Fourth Amendment by regularly conducting unreasonable seizures and

arresting individuals without probable cause.

(Id., ¶ 83). Plaintiff further maintains Defendant City had notice that its use of force training and

officer supervision was inadequate and likely to result in constitutional violations, based on

multiple incidents of excessive force against protesters in October 2014, November 2014, July

2015, August 2015, and September 2017. (Id., ¶ 84). He elaborates by noting that several of

these incidents occurred after the City entered into a settlement agreement regarding its use of

chemical agents in Templeton v. Dotson, No. 4:14CV2019 CEJ (E.D. Mo. Mar. 25, 2015). (Id.,

¶¶ 31, 85-86).

In support of their Motion for Summary Judgment, Defendants City and Hayden assert

that the record fails to demonstrate a pattern of illegal conduct that was so persistent and

widespread as to have the effect and force of law. Specifically, Defendants claim Officer Olsten

did not deploy pepper spray to disperse peaceful protesters; instead, his use of pepper spray was

in the context of threatening behavior by protesters. Defendants further maintain that other than

the allegations set forth in Plaintiff’s Second Amended Complaint, the record contains no facts

that would allow a jury to find that the City’s training practices were inadequate, that the City

was deliberately indifferent to the rights of others in adopting said training practices, or that the

City’s inadequate training procedures caused Plaintiff’s injuries.

Plaintiff counters that “[e]ven after the Templeton settlement and the incidents that gave

rise to it, Defendant City did not initiate or require comprehensive retraining of its officers,

despite repeated, similar constitutional violations perpetrated by SLMPD officers after that

elaborates in his response to Defendants’ motion as follows: “Subsequently, SLMPD updated its

chemical munitions policy to incorporate the language from the Templeton settlement. SLMPD

did not, however, adequately train its officers regarding the Templeton agreement or the change

in policy. Numerous police officers, from majors to patrolmen, testified that they were not aware

of the Templeton settlement agreement or the change in chemical munitions policy. Many of

them also testified that they never received any training whatsoever regarding the change in the

chemical munitions use of force policy. Because of this, SLMPD could not train its officers on

Templeton or hold the officers accountable for violating Templeton. Thus, nothing changed.”

(Plaintiff Amir Brandy’s Memorandum in Opposition to the City of St. Louis and Commissioner

Hayden’s Motion for Summary Judgment, P. 15; see also Plaintiff’s Additional Facts--City, ¶¶

3-18).

Upon consideration, the Court finds that Plaintiff presents evidence from which a

reasonable jury could conclude that Defendant City had notice of a pattern of unconstitutional acts

committed by officers with respect to the deployment of chemical munitions in violation

of citizens’ First Amendment rights. Plaintiff further presents evidence that Defendant City

adopted deficient supervision and training practices with deliberate indifference to the

constitutional rights of others, that these training practices were the product of the City’s

deliberate and conscious choices, and that the practices proximately caused Plaintiff’s injury.

Defendants’ Motion for Summary Judgment on Plaintiff’s Monell claim will therefore be denied.

III. Official Immunity

Officer Olsten next asserts he is entitled to official immunity from Plaintiff’s state law

claims. “Under Missouri law, the official immunity doctrine protects public officials from

liability for injuries arising out of their discretionary acts or omissions, but not from liability in

447 F.3d 569, 585 (8th Cir. 2006) (citation omitted). A law enforcement officer’s decision to use

force in the performance of his duties is discretionary rather than ministerial. Davis v. White,

794 F.3d 1008, 1013 (8th Cir. 2015).

“[O]fficial immunity does not apply to discretionary acts done in bad faith or with malice”,

however. Davis, 794 F.3d at 1013 (internal quotation marks and citations omitted). “A finding

of malice requires ‘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.’” Wealot v. Brooks, 865 F.3d 1119, 1129 (8th Cir. 2017) (quoting State ex rel. Twiehaus

v. Adolf, 706 S.W.2d 443, 447 (Mo. 1986) (citation omitted)). “A finding of bad faith embraces

more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity,

conscious wrongdoing, or breach of a known duty through some ulterior motive.” Id. (internal

quotation marks and citations omitted).

In his Motion for Summary Judgment, Defendant Olsten argues that Plaintiff cannot

show his actions were undertaken in bad faith or with malice, as he acted reasonably and utilized

only the force necessary to abate the threat posed by Plaintiff and those near him. Plaintiff

counters that when viewed in the light most favorable to Plaintiff, the evidence establishes that

Officer Olsten acted with bad faith or malice when he pepper sprayed Plaintiff, as at all times

Plaintiff was peacefully protesting and not threatening Officer Olsten or acting in a violent

manner, no dispersal orders or warnings were made before Officer Olsten administered the

pepper spray, and Officer Olsten was smiling as he pepper sprayed the protesters.

Upon consideration, the Court finds that Plaintiff states facts from which it could be found

that Officer Olsten acted in bad faith or with malice when he applied pepper spray against

Summary Judgment based on official immunity.12

IV. Remaining Claims

The remaining claims in this matter include Plaintiff’s claims against Defendant City for

negligent infliction of emotional distress and battery under Missouri law (Counts III and VI), and

Officer Olsten’s crossclaim against the City for reimbursement of all expenses and attorneys’

fees incurred by him in defending against Plaintiff’s claims and payment of any damages and

costs awarded to Plaintiff. Having reviewed the parties’ submissions, the Court believes it would

be well-served by entertaining oral argument on these issues. The Court therefore will reserve

ruling on these issues until after the trial concludes, and will schedule oral argument as necessary

at that time.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendant/Cross-Claimant William Olsten’s Motion

for Summary Judgment (ECF No. 112) is GRANTED in part and DENIED in part, in

accordance with the foregoing.

IT IS FURTHER ORDERED that Defendants City of St. Louis and Commissioner

John Hayden’s Motion for Summary Judgment (ECF No. 115) is GRANTED in part, DENIED

in part, and HELD IN ABEYANCE in part, in accordance with the foregoing.

12 With respect to Commissioner Hayden, however, the Court finds he is entitled to official

immunity, as there exists no evidence of malice or bad faith on his part.

Claim (ECF No. 130) is HELD IN ABEYANCE, pending the Court’s receipt of oral argument

on the issues raised therein.

Dated this 20th Day of May, 2022.

/s/ Jean C. Hamilton

UNITED STATES DISTRICT JUDGE