Brian Baude v. Gerald Leyshock

United States Court of Appeals

For the Eighth Circuit

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No. 20-2864

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Brian Baude

Plaintiff - Appellee

v.

Gerald Leyshock, et al.

Defendants - Appellants

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: September 28, 2021

Filed: January 27, 2022

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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.

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ERICKSON, Circuit Judge.

This case is one of many arising out of the protests and unrest that occurred

after Officer Jason Stockley was acquitted of the murder of Anthony Lamar Smith

on September 15, 2017. Following his arrest, Brian Baude sued the City of St. Louis,

Missouri, and various police officers of the St. Louis Metropolitan Police

Department (“SLMPD”), alleging claims under 42 U.S.C. § 1983 for violations of

his First, Fourth, and Fourteenth Amendment rights and conspiracy to violate those

rights, and under Missouri state law. Baude alleges that on September 17, 2017, he

and others were boxed into an intersection by SLMPD officers, pepper sprayed,

arrested, and restrained with zip ties. The officers asserted the defense of qualified

immunity on the § 1983 claims. The district court1 denied, in part, the officers’

motion for judgment on the pleadings, and they filed this interlocutory appeal. “An

interlocutory order denying a motion to dismiss based on qualified immunity is

immediately appealable.” Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018).

Reviewing the denial of qualified immunity de novo, we affirm.

I. BACKGROUND

Our review of the denial of the motion to dismiss based on qualified immunity

is limited to the facts alleged in Baude’s lengthy second amended complaint, which

we accept as true and view most favorably to Baude. Hager v. Ark. Dep’t of Health,

735 F.3d 1009, 1013 (8th Cir. 2013). The parties attached voluminous materials to

their pleadings, which we may also consider. See Buckley v. Hennepin Cnty., 9

F.4th 757, 760 (8th Cir. 2021) (noting we may rely on materials necessarily

embraced by the pleadings).

According to the allegations in the second amended complaint, between

8:00 p.m. and 9:00 p.m., a handful of individuals broke windows and destroyed

flowerpots on Olive Street in downtown St. Louis. There is no evidence or allegation

that Baude was in any way involved in the destruction of property. At approximately

8:48 p.m. and 8:51 p.m., Sergeant Brian Rossomanno gave two dispersal orders to

the small number of protestors present at the time. Baude, however, was not at the

location when the alleged dispersal orders were given.

Over the next two-plus hours, SLMPD officers began blocking roads and

directing civilians to the intersection of Washington Avenue and Tucker Boulevard,

1

The Honorable Rodney W. Sippel, Chief Judge, United States District Court

for the Eastern District of Missouri.

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which is an area containing condominiums, apartment buildings, and businesses,

including restaurants and bars. While many of the individuals present were loitering

and milling about the area, a small group of individuals were loudly reminding the

officers of their right to assemble. Some sat down on the road, although a vehicle

was captured on video driving slowly down the street, unimpeded by the group.

Baude, who lived near the intersection, saw reports on social media that protestors

had destroyed property in the area, and he decided to go out and investigate. Baude

left his home around 9:30 p.m., completely unaware of the earlier dispersal orders.

Lieutenant Timothy Sachs presented to Lieutenant Colonel Gerald Leyshock

his proposal to not let anyone leave the vicinity of Washington Avenue and Tucker

Boulevard and to arrest everyone present. As alleged in the second amended

complaint, Lieutenant Colonel Leyshock approved this course of action. Around

11:15 p.m. or 11:20 p.m., SLMPD officers began forming four perimeter lines,

extending across the streets and sidewalks on Washington Avenue and Tucker

Boulevard. The SLMPD officers surrounded, squeezed, and eventually blocked

anyone from leaving the intersection of Washington Avenue and Tucker Boulevard

in a technique Baude describes as “kettling.”

When Baude observed the police herding the bystanders into a confined space,

he asked to leave the intersection but was informed by SLMPD officers that it was

too late. In addition to Baude, those being contained by the SLMPD officers

included downtown residents, business patrons, protestors, observers, and members

of the press. Video evidence documented multiple citizens approaching SLMPD

officers and requesting permission to leave. Their requests were not only ignored

but also met with commands to “get back!” Video evidence also shows SLMPD

officers grabbing an African American male, who was outside the kettle, and

throwing him inside the kettle. Although an SLMPD officer suffered a serious injury

during this ordeal, the second amended complaint alleges that the injured officer was

an African American undercover SLMPD officer who was pepper sprayed and

beaten by his fellow uniformed SLMPD officers.

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Although the officers assert that they announced dispersal and unlawful

assembly warnings in-person and via public address, the number of orders and who

heard them is disputed. Baude, having been herded into the intersection by SLMPD

officers and unable to leave, was pepper sprayed by an unnamed SLMPD officer and

arrested as part of a mass arrest. Baude alleges that during the course of his arrest

and detention, his hands were zip-tied, and he was transported to the City Justice

Center where he was searched and held for fourteen hours. Baude was eventually

released with a court date, which was later cancelled.

Baude further alleges that individuals inside the kettle with him, who were not

acting violently or aggressively, were indiscriminately and repeatedly doused with

chemical agents without warning. Others were kicked, beaten, and dragged by

SLMPD officers. Some individuals who were wearing goggles to protect themselves

had their goggles removed by SLMPD officers and then sprayed directly in the face

with pepper spray. During the arrests of over 100 people, Baude alleges that SLMPD

officers yelled derogatory and homophobic epithets at those being arrested. He

alleges that several individuals who had been handcuffed with zip-ties continued to

suffer pain and numbness in their hands months after the incident.

In his second amended complaint, Baude included a photograph of at least

sixteen smiling SLMPD officers posing with a banner that stated, “Thank you for

visiting the Washington Avenue Entertainment District & Neighborhood,” which

was posted on Twitter by an anonymous person on the night of the mass arrest. In

addition, Baude alleges that during and after the arrests, SLMPD officers were

observed “high fiving each other, smoking celebratory cigars, taking selfies on their

personal phones with arrestees against the arrestees[’] will, and chanting ‘Whose

Streets? Our Streets!’” Baude further alleges that the day after the mass arrest, the

SLMPD acting police chief, while standing next to then-St. Louis Mayor Lyda

Krewson, reinforced the propriety of the officers’ actions by stating, “I’m proud to

say the city of St. Louis and the police owned the night.” Approximately a year after

the mass arrest, four SLMPD officers were indicted for their conduct. The

indictment included emails demonstrating that officers were informed ahead of time

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that they would be deployed wearing military-type tactical dress to conceal their

identities for the purpose of beating protestors.

Baude alleges that Lieutenant Colonel Gerald Leyshock, Lieutenant Scott

Boyher, Lieutenant Timothy Sachs, Sergeant Randy Jemerson, Sergeant Matthew

Karnowski, Sergeant Brian Rossomanno, Officer Timothy Bockskopf, and five

“John Doe” officers of the SLMPD who removed their name tags from their

uniforms in violation of guidance promulgated by the United States Department of

Justice and standard law enforcement practices (collectively, the “Officers”) violated

his constitutional rights when the Officers knew or should have known that there

was no probable cause for his arrest and that there was no legal justification for use

of force against him. As to Sergeant Rossomanno, Baude specifically alleges he

“can be seen on video within arms-length of SLMPD officers who were pepper

spraying and beating peaceful and compliant citizens. Rather than instructing these

officers to cease violating the civil rights of the citizens, Defendant Rossomanno

took control of the situation and directed the officers’ unlawful actions.”

II. DISCUSSION

We have limited jurisdiction over interlocutory appeals involving qualified

immunity. We do not have jurisdiction to resolve factual disputes, but we have

jurisdiction to consider de novo the legal question of whether the Officers are entitled

to qualified immunity. Prater v. Dahm, 89 F.3d 538, 540 (8th Cir. 1996). To prevail

at this stage in the proceedings, the Officers must show they are “entitled to qualified

immunity ‘on the face of the complaint.’” Stanley, 899 F.3d at 627 (quoting

Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)).

“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) (quoting Brown v. City of Golden

Valley, 574 F.3d 491, 495 (8th Cir. 2009)) (internal quotation marks omitted).

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Baude alleges violations of his constitutional rights based on allegations and

evidence that he was subjected to an unreasonable seizure and excessive force during

the course of his arrest. The Officers counter with arguments that the arrests were

based on probable cause sufficient to justify a mass arrest because the crowd was

violating various statutes and ordinances as a unit and that the Officers’ use of force

did not violate clearly established law.

A. Unreasonable Seizure

The Fourth Amendment prohibits unreasonable seizures. U.S. Const. amend.

IV. “A Fourth Amendment seizure occurs when an officer restrains the liberty of an

individual through physical force or show of authority,” Quraishi v. St. Charles

Cnty., 986 F.3d 831, 839 (8th Cir. 2021) (citation omitted), such that “a reasonable

person would have believed that he was not free to leave,” United States v.

Mendenhall, 446 U.S. 544, 554 (1980).

When a person is surrounded by officers on all sides, he would reasonably

believe that he is no longer free to leave and that he has been seized. See Brower v.

Cnty. of Inyo, 489 U.S. 593, 599 (1989) (holding that setting up roadblocks to stop

fleeing suspects is a seizure). It is indisputable that Baude was seized when the

Officers indiscriminately encircled all individuals in the area, including protestors,

observers, business patrons, and residents simply walking by, and the Officers

refused to allow anyone to leave voluntarily. See id.; see also Mendenhall, 446 U.S.

at 554. Yet, in order for a seizure to be unconstitutional, the conduct must have been

unreasonable.

At the motion to dismiss stage, Baude need only allege sufficient facts to

indicate the seizure was unreasonable. In other words, the complaint need only

“state a claim to relief that is plausible on its face.” Stanley, 899 F.3d at 627 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks

omitted). We thus consider whether the allegations in Baude’s second amended

complaint and evidence in the accompanying exhibits submitted by the parties, taken

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as true and viewed in Baude’s favor, state a plausible claim that the Officers’ conduct

amounts to an unconstitutional seizure. We find that, at the pleadings stage, Baude

has met his burden.

Baude alleges the Officers failed to warn him and the allegedly peaceful group

that they were about to be surrounded, herded into a confined area, and arrested.

Baude also alleges that he was at all times peaceful, but the Officers denied his

request to leave the area. The Officers themselves have admitted that this course of

action “was not a model operation.” The allegations and the accompanying video

of the encounter give rise to a question of fact on the reasonableness of the seizure.

The Officers contend they had at least arguable probable cause to mass arrest

the people, including Baude, who they squeezed into the intersection of Washington

Avenue and Tucker Boulevard. Like the determination of whether a seizure is

reasonable, the lawfulness of the mass arrest is likewise dependent upon resolving

underlying questions of fact. A mass arrest may satisfy the Fourth Amendment’s

protections if the police have “grounds to believe all arrested persons were a part of

the unit observed violating the law.” Bernini v. City of St. Paul, 665 F.3d 997, 1003

(8th Cir. 2012) (citation omitted). This is so even if some innocent bystanders are

mistakenly believed to be part of the unit. See id. at 1005 (determining it was

objectively reasonable for officers to believe they could arrest all those suspected of

being part of the unit while also noting the officers released approximately 200

people in an attempt to avoid custodial arrests of innocent bystanders). Where there

is a unit, “the Fourth Amendment d[oes] not require a probable cause determination

with respect to each individual in a large and potentially riotous group before making

arrests.” Id. at 1003.

The allegations and the accompanying video of the encounter give rise to a

question of fact related to the reasonableness of the seizure. We are unpersuaded

that either Burbridge v. City of St. Louis, 430 F. Supp. 3d 595 (E.D. Mo. 2019),

aff’d, 2 F.4th 774 (8th Cir. 2021), or Bernini, 665 F.3d at 1003–04, resolve this issue

at the pleadings stage.

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The case of Burbridge, 430 F. Supp. 3d at 604, was decided after the record

had been developed and the City of St. Louis and the police officers moved for

summary judgment. Similarly, the evidence in the record in Bernini, 665 F.3d at

1002, also at the summary judgment stage, is distinguishable. In Bernini, the crowd

chanted in unison, lined up directly across from the police, donned gasmasks and

other face coverings as if “preparing for a confrontation,” and were otherwise acting

or moving as a unit or group. Id. at 1004. Here, Baude alleges, and the video

included with the pleadings appears to confirm, that the group of people involved in

the mass arrest not only included a few people noisily proclaiming their

constitutional right to assemble, but others who were generally gawking and milling

about, others on bikes riding through the area, some people sitting on the street and

on the sidewalk, and even a person pushing a baby in a stroller. As noted by the

district court, there are outstanding factual questions about who heard which

declarations related to unlawful assembly and dispersal orders (if any), and whether

the arrestees had the requisite intent to commit any of the alleged crimes.

Until the kettle was effectuated by SLMPD officers, people were freely

entering and exiting the area even after the Officers purportedly issued dispersal

orders. The video evidence does not show any real sense of urgency or confrontation

visible in the crowd. There was no attempt by SLMPD officers to separate the subset

of people previously engaged in earlier acts of violence or vandalism or any unlawful

assembly from the innocent bystanders milling about. The Officers’ assertion that

they had probable cause or arguable probable cause to believe some members of the

crowd violated laws earlier in the day and that “many” were apparently violating the

law by refusing to disperse is insufficient to establish a “unit” that may justify a mass

arrest as a matter of law. Police may be entitled to qualified immunity protections

if they arrest individual offenders with at least arguable probable cause, see White

v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017), but officers cannot enjoy such

protections by alleging that “the unlawful acts of a small group” justify the arrest of

the mass, Bernini, 665 F.3d at 1005.

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B. Excessive Force

Baude also alleges the Officers violated his constitutional right to be free from

excessive force when the Officers “kettled” him, pepper sprayed him, and zip-tied

his hands. “Excessive force claims under the Fourth Amendment are governed by a

reasonableness standard.” White, 865 F.3d at 1074 (citing Graham v. Connor, 490

U.S. 386, 395 (1989)). We evaluate the reasonableness of the force by balancing 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) (internal quotation marks omitted). This balancing of interests

“requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S. at 396)

(internal quotation marks omitted).

Baude’s right to be free from the alleged types of force was clearly established

in September of 2017. See Johnson v. Carroll, 658 F.3d 819, 828 (8th Cir. 2011)

(“throw[ing] to the ground and mac[ing] a nonviolent, suspected misdemeanant who

was not fleeing or herself resisting arrest” is unlawful); see also Chambers v.

Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (handcuffing may give rise to a claim

for excessive force when officers use more than de minimis force). To establish a

constitutional violation, however, Baude must also show the amount of force used

was objectively unreasonable under the particular circumstances. See Graham, 490

U.S. at 397 (stating “the ‘reasonableness’ inquiry in an excessive force case is an

objective one . . . in light of the facts and circumstances”).

The pleadings before us and video evidence paint a picture of a compliant

individual among a generally peaceful and compliant crowd who was boxed into an

intersection by police, pepper sprayed, and forcefully arrested. Specific questions

as to whether “kettling” a crowd was in-and-of-itself excessive force, whether the

application of the zip-ties caused the requisite “de minimis injury” to establish a

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constitutional violation, or whether Baude was truly compliant cannot be answered

on this limited record. Based on the allegations and on this record, we cannot

conclude as a matter of law that the force used against Baude, when viewing the

alleged facts in a light most favorable to him, was objectively reasonable. LeMay

v. Mays, 18 F.4th 283, 287–88 (8th Cir. 2021) (affirming the denial of qualified

immunity on a motion to dismiss because “the complaint here states a plausible

claim” of a Fourth Amendment violation).

C. Supervisory Officers

Finally, the supervisory officers contend they are entitled to qualified

immunity because they did not personally participate in any use of force against

Baude, and to the extent that they witnessed any unreasonable force, they either had

no time to intervene or else it was reasonable for them to believe the officers were

using only the necessary force to accomplish the arrest. Even though an officer has

no liability under the doctrines of respondeat superior or supervisor liability, see

Wagner v. Jones, 664 F.3d 259, 275 (8th Cir. 2011), at the time of this mass arrest,

it was “clearly established that an 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,” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir.

2009). Supervisory officers who act with “deliberate indifference toward the

violation,” Wagner, 664 F.3d at 275 (quoting Ottman v. City of Independence, 341

F.3d 751, 761 (8th Cir. 2003)), or, in other words, are aware that their subordinates’

actions create a “substantial risk of serious harm,” may be liable if they fail to

intervene to mitigate the risk of harm, id. (quoting Kahle v. Leonard, 477 F.3d 544,

551–52 (8th Cir. 2007)) (internal quotation marks omitted).

Baude has alleged that the supervisory officers observed or intended the use

of excessive force, and no one intervened to halt it. He has further alleged that the

supervisors issued orders allowing their subordinates to use excessive force against

an allegedly peaceful crowd. According to Baude’s allegations, it was “the

coordinated actions of the officers in circling the assembly into the kettle and the

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systematic disbursement of chemical agents, [which made it] clear that these tactics

were planned and that senior officials of the SLMPD not only had notice of but

actually sanctioned the conduct of Defendants.” While these facts are hotly

contested, the allegations and the video documenting the incident present issues that

need to be resolved by a court with the power to decide facts. And this is not such a

court. See Prater, 89 F.3d at 540 (stating the appellate court’s jurisdiction is limited

and the court must “accept as true all facts pled by” the non-moving party at this

stage of litigation). Baude has pled claims of excessive force against the supervising

Officers sufficient at this stage in the proceedings to defeat the Officers’ qualified

immunity defense.

D. Subordinate Officers

Subordinate police officers cannot escape liability when they blindly follow

orders. Rather, their conduct while following orders must be reasonable. We have

held that an assisting officer may rely on the probable cause determination and

follow the directions of an officer who is directing the arrest “as long as the reliance

is reasonable.” Ehlers v. City of Rapid City, 846 F.3d 1002, 1010 (8th Cir. 2017)

(citing Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (en banc)). But here, at

the dismissal stage of the proceedings and on the record before us, there are simply

too many factual disputes and unknowns to determine as a matter of law that the

subordinate officers reasonably relied on their superiors’ orders to arrest the crowd

at the intersection of Washington Avenue and Tucker Boulevard.

For instance, Baude alleges, and the record suggests, that the subordinate

Officers relayed information about the crowd to Lieutenant Colonel Leyshock and

Lieutenant Sachs, which creates a permissible inference that the subordinates were

actively involved in the development of the arrest orders rather than merely

following orders. Also, Baude alleges Officer Bockskopf personally arrested him

without probable cause. He makes specific factual allegations regarding his own

conduct and the conduct of the crowd both before and during the arrest that, if

accepted as true, undermine Officer Bockskopf’s allegedly reasonable reliance on

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his superiors’ allegedly lawful orders to effect the arrest. These are, however, fact

issues that we are without jurisdiction to decide. See Hoyland v. McMenomy, 869

F.3d 644, 651 (8th Cir. 2017) (stating our jurisdiction extends only to questions of

law on an interlocutory appeal).

At this stage of the proceedings, the pleadings and the attached evidence do

not entitle the subordinate Officers to the protection of qualified immunity based on

their arguments that they purportedly and reasonably followed orders from their

supervisors in effecting the arrests. Ehlers, 846 F.3d at 1010. As such, Baude has

alleged a plausible claim for relief against the subordinate Officers.

III. CONCLUSION

Because Baude’s unreasonable seizure and excessive force claims are

factually supported and fall within the liberal pleading standard of plausibility, the

district court did not err in denying the Officers’ motion based on qualified

immunity. See Twombly, 550 U.S. at 557 (finding a complaint will survive the

pleading stage if it merely sets forth “allegations plausibly suggesting” a legal

violation).

We affirm the district court’s judgment.

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