The opinion
United States Court of Appeals
For the Eighth Circuit
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No. 21-1524
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Alicia Street; Ronald Harris; Fudail McCain; Ashley Theis; Nicole Warrington, on
behalf of themselves and a class of similarly situated persons,
lllllllllllllllllllllPlaintiffs - Appellees,
v.
Gerald Leyshock, Lieutenant Colonel; Scott Boyher, Lieutenant; Timothy Sachs,
Lieutenant; Randy Jemerson, Sergeant; Matthew T. Karnowski, Sergeant; Brian
Rossomanno, Sergeant,
lllllllllllllllllllllDefendants - Appellants,
City of St. Louis, Missouri,
lllllllllllllllllllllDefendant.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 12, 2022
Filed: July 27, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
This is a third appeal to this court involving litigation arising from a police
response to protest activity in St. Louis on September 17, 2017. In this case, as in the
others, plaintiffs allege that St. Louis police officers boxed civilians into a downtown
intersection in a maneuver characterized as a “kettle.” Some persons caught in this
kettle allegedly were beaten, pepper sprayed, handcuffed with zip-ties, and arrested.
This court has issued two decisions in cases brought by different plaintiffs against the
same six police officers. Faulk v. City of St. Louis, 30 F.4th 739 (8th Cir. 2022);
Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022).
The plaintiffs here—Alicia Street, Ronald Harris, Fudail McCain, Ashley
Theis, and Nicole Warrington—were among those arrested at the intersection. They
sued the six officers under 42 U.S.C. § 1983, alleging that the officers acted as
supervisors and played a role in orchestrating or executing the kettling. As relevant
here, the plaintiffs alleged violations of their right to be free from unreasonable
seizures, including the use of excessive force, and alleged a conspiracy among the
officers to deprive the plaintiffs of their civil rights. The officers moved to dismiss
the claims based on qualified immunity. The district court denied the motion with
respect to these claims, and the officers appeal on three principal issues.
The officers first argue that they are entitled to qualified immunity on the
claims relating to the plaintiffs’ arrests. The plaintiffs claim that these six supervisory
officers caused the plaintiffs to be arrested without probable cause. The officers
maintain that the arrests were supported by at least arguable probable cause, and that
qualified immunity therefore applies. See Ross v. City of Jackson, 897 F.3d 916, 921
(8th Cir. 2018).
In Baude, this court concluded that the officers were not entitled to qualified
immunity based on allegations virtually identical to those in this case. Officers may
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have probable cause to order a mass arrest if they “have ‘grounds to believe all
arrested persons were a part of [a] unit observed violating the law.’” 23 F.4th at 1072
(quoting Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012)). Baude
determined, however, that the complaint and video recording submitted by the
plaintiff plausibly alleged that the atmosphere at the intersection was generally
peaceful, with individuals and scattered groups casually “gawking and milling about.”
Id. at 1072-73. Taking those allegations as true, the court concluded that the officers
were not entitled to qualified immunity. This appeal arises in the same procedural
posture, and the complaint includes the same relevant factual allegations and attached
video recording, so Baude precludes a grant of qualified immunity on the arrest
claims in this case as well.
Second, the officers assert that even if the arrests were unlawful, they are
entitled to qualified immunity on the plaintiffs’ claims of excessive force. See
Gerling v. City of Hermann, 2 F.4th 737, 744 (8th Cir. 2021). The plaintiffs do not
allege that these officers personally used force against them, and § 1983 does not
allow for vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In an
action under § 1983, a supervisor may be liable only for his own misconduct. Id. at
677. We conclude that the allegations in this case are insufficient to establish a
plausible claim that the defendant officers violated any plaintiff’s clearly established
right against the use of excessive force.
The complaint does not adequately allege that any defendant officer is
responsible for the use of excessive force against a plaintiff. Plaintiff Street alleges
that an officer “standing behind Defendant Jemerson” jabbed her with a baton and
knocked off her glasses, but she does not allege that Jemerson caused that one-time
use of force. The other plaintiffs make no allegation that any defendant used force
against them or even was present when the plaintiffs were subjected to force. The
complaint alleges that defendant Karnowski used force against an unidentified
citizen, and that he and defendant Boyher (on one occasion) and defendant
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Rossomanno (on another occasion) directed the use of force against other non-parties,
but there is no allegation that these defendants used force or directed the use of force
against any of the plaintiffs.
In Baude, this court rejected a claim of qualified immunity on the ground that
the plaintiff alleged that “supervisory officers observed or intended the use of
excessive force,” and that “the supervisors issued orders allowing their subordinates
to use excessive force against an allegedly peaceful crowd.” 23 F.4th at 1074. The
complaint in this case, however, does not allege that the defendants issued orders to
use excessive force against the crowd as a whole or against the plaintiffs in particular.
Nor does it allege that the supervisory officers observed or intended the use of
excessive force as to the crowd as a whole or the plaintiffs in particular. Allegations
that three supervisory officers used or directed the use of force in three discrete
instances are insufficient to support a reasonable inference that the six supervisory
officers were deliberately indifferent to the use of excessive force against anyone in
the crowd at any time, including against the plaintiffs here. The supervisory officers
cannot be held liable for the alleged misdeeds of other police officers on a theory of
respondeat superior. We therefore conclude that the officers are entitled to qualified
immunity on the claims alleging use of excessive force.
The partial dissent invites a comparison of the complaint in Baude with the
complaint in this case. In determining the scope of circuit precedent, however, we are
guided by the previous opinion of the court itself. As noted, the Baude opinion said
that the key allegations of that complaint were that “supervisory officers observed or
intended the use of excessive force” and that “supervisors issued orders allowing their
subordinates to use excessive force against an allegedly peaceful crowd.” 23 F.4th
at 1074. The complaint in this case does not plausibly allege that the defendants took
the actions described in Baude regarding the use of excessive force.
Finally, the officers assert that they are entitled to qualified immunity on the
plaintiffs’ conspiracy claims, because the unsettled nature of the intracorporate
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conspiracy doctrine means that they did not violate a clearly established right. The
intracorporate conspiracy doctrine provides that “a local government entity cannot
conspire with itself through its agents acting within the scope of their employment.”
L.L. Nelson Enters. v. County of St. Louis, 673 F.3d 799, 812 (8th Cir. 2012). The
Supreme Court in Ziglar v. Abassi, 137 S. Ct. 1843 (2017), held that officials who
allegedly conspired to interfere with civil rights under 42 U.S.C. § 1985(3) were
entitled to qualified immunity, because the unresolved scope of the intracorporate
conspiracy doctrine meant that reasonable officers “would not have known with any
certainty that the alleged agreements were forbidden by law.” Id. at 1869. In Faulk,
this court explained that neither the Supreme Court nor this court had “definitively
addressed the issue whether the doctrine applies to § 1983 conspiracy claims,” and
observed that two other circuits had held that the doctrine does apply. 30 F.4th at
749. Accordingly, the officers who allegedly conceived or executed the “kettling
plan” were entitled to qualified immunity on the conspiracy claim. Id. at 750. The
same result obtains here.
In sum, we reverse the district court’s order denying the officers’ motion to
dismiss with respect to the plaintiffs’ claims alleging use of excessive force and
conspiracy to deprive civil rights. We affirm the order with respect to the claims
alleging unlawful arrest.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I agree that the officers are entitled to qualified immunity on the conspiracy
claim and that Baude precludes a grant of qualified immunity on the unlawful arrest
claims. In my view, however, Baude also precludes a grant of qualified immunity on
the excessive force claims.
The court acknowledges that in Baude, a case arising from the same incident
and brought against the same defendant officers, we rejected a claim of qualified
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immunity on the plaintiff’s excessive force claims because the complaint there
alleged that “supervisory officers observed or intended the use of excessive force,”
and that “the supervisors issued orders allowing their subordinates to use excessive
force against an allegedly peaceful crowd.” 23 F.4th at 1074. The court attempts to
distinguish the excessive force allegations here from those in Baude by asserting that,
unlike in Baude, the complaint “does not allege that the defendants issued orders to
use excessive force against the crowd as a whole or against plaintiffs in particular.”
But a review of the complaints from both cases reveals that the factual allegations
pertaining to excessive force are almost identical. Using nearly the exact same words
as in Baude, the complaint here likewise alleges facts supporting the conclusion that
the supervisory officers observed or intended the use of excessive force,1 and issued
orders allowing their subordinates to use excessive force.2
1
Compare Baude v. City of St. Louis, No. 4:18-cv-01564-RWS, Doc. 34 ¶ 57
(E.D. Mo. Feb. 15, 2019) (“Baude Complaint”) (“Defendant Sachs came up with the
plan to arrest everyone present. He presented his plan to Defendant Leyshock, who
approved the plan. The plan was to not let anyone leave that was in the vicinity of
Washington Avenue and Tucker Boulevard.” (citations omitted)), with Street v.
Leyshock, No. 4:19-cv-02590-CDP, Doc. 13 ¶ 55 (E.D. Mo. Jan. 15, 2020) (“Street
Complaint”) (“Defendant Sachs came up with the plan to arrest everyone present. He
presented his plan to Defendant Leyshock, who approved the plan. The plan was to
not let anyone leave that was in the vicinity of Washington Avenue and Tucker
Boulevard.” (citations omitted)); compare also Baude Complaint ¶ 58 (“Defendants
Leyshock, Sachs, Rossomanno, and Jemerson knew or should have known that their
plan to kettle the people that SLMPD directed to the intersection of Washington and
Tucker and arrest them, merely for being present, would result in arrests without
probable cause and the unjustified use of force to effectuate said arrests.”), with Street
Complaint ¶ 56 (“Defendants Leyshock, Sachs, Rossomanno, and Jemerson knew or
should have known that their plan to kettle the people that SLMPD directed to the
intersection of Washington and Tucker and arrest them, merely for being present,
would result in arrests without probable cause and the unjustified use of force to
effectuate said arrests.”).
2
Compare Baude Complaint ¶ 52 (“Defendants Rossomanno and Jemerson
directed people to the intersection of Washington and Tucker, where the Defendants
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The court dismisses the similarities between the factual allegations in the two
complaints by asserting that “[i]n determining the scope of circuit precedent . . . we
are guided by the previous opinion of the court itself.” It then points to the Baude
court’s summary of the excessive force allegations in that case—i.e., that the
complaint there alleged that “supervisory officers observed or intended the use of
excessive force” and that “the supervisors issued orders allowing their subordinates
to use excessive force against an allegedly peaceful crowd”—and asserts that the
complaint in this case did not make such allegations. But as noted above, the specific
allegations underlying the Baude court’s description are also in the complaint here.
The court does not identify any factual allegations related to excessive force that were
raised in Baude but not in the instant case. It may be true that we typically look only
to the previous opinion of the court and not the underlying record when assessing
had already decided that they would kettle, pepper spray, beat, and illegally arrest
Plaintiff.”), with Street Complaint ¶ 50 (“Defendants Rossomanno and Jemerson
directed people to the intersection of Washington and Tucker, where the Defendants
had already decided that they would kettle, pepper spray, beat, and illegally arrest
Plaintiff.”); compare also Baude Complaint ¶ 82 (“Defendants Boyher and Karnowski
were directing these officers. Rather than defuse the situation, Defendants Boyher
and Karnowski directed the officers under their command to use force against the
peacefully assembled people and supervised the unlawful arrests.”), with Street
Complaint ¶ 80 (“Defendants Boyher and Karnowski were directing these Defendant
Officers. Rather than defuse the situation, Defendants Boyher and Karnowski
directed Defendant Officers under their command to use force against the peacefully
assembled people and supervised the unlawful arrests.”); compare also Baude
Complaint ¶ 93 (“Defendant Rossomanno 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 right of the
citizens, Defendant Rossomanno took control of the situation and directed the
officers’ unlawful actions.”), with Street Complaint ¶ 92 (“Defendant Rossomanno
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 right of the citizens, Defendant Rossomanno took
control of the situation and directed the officers’ unlawful actions.”).
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whether precedent controls a new case with a different set of facts. But here, the two
cases—Baude and this one—concern the same underlying events and the same
defendants. To refuse to review the relevant records under such circumstances risks
creating the undesirable result seen here: that two sets of plaintiffs receive disparate
treatment despite raising the same claims arising from the same events supported by
the same factual allegations against the same defendants.
Because the excessive force allegations in Baude are indistinguishable from
those here, I would affirm the district court’s order denying the officers’ motion to
dismiss with respect to the excessive force claims.
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