Brown v. City of Saint Louis, 4:18 CV 1676 JMB

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
Docket Number4:18 CV 1676 JMB
Decision Date12 May 2022



No. 4:18 CV 1676 JMB

United States District Court, E.D. Missouri, Eastern Division

May 12, 2022



In 2017, plaintiff Crystal Brown participated in protests near Busch Stadium, in downtown St. Louis, Missouri, in the aftermath of the acquittal of former St. Louis police officer Jason Stockley in the killing of Anthony Lamar Smith. In the evening of September 29, 2017, at the corner of Walnut and Broadway Streets, she was among a group of individuals who were pepper sprayed by St. Louis police officer William Olsten. At the time, Police Commissioner (then a major) John Hayden was present at the scene in a supervisory capacity. As a result of being pepper sprayed, Brown allegedly experienced pain, burning in her eyes, labored breathing, and emotional distress. In her amended complaint filed pursuant to 42 U.S.C. § 1983 (Doc. 36), she alleges that the incident was in retaliation for the exercise of her First Amendment rights (Count I); that the City of St. Louis (“City”) employed unconstitutional policies and practices by failing to train and supervise its police officers and employed unconstitutional customs in searching and seizing individuals (Count II); that defendant Olsten used excessive force (Count IV); and that defendant Hayden failed to intervene (Count V), all in violation of the Fourth Amendment. She further alleges state law claims of negligent infliction of emotional distress (Count III) and battery (Count


VI). In an amended cross-claim, defendant Olsten claims that the City owes him defense and indemnification based on local and state law (Doc. 85).[1]

Now pending before the Court are defendant City's and Hayden's motion for summary judgment on plaintiff's claims (Doc. 95), Olsten's motion for summary judgment on plaintiff's claims and the cross-claim (Doc. 102) and the City's motion to dismiss or stay cross-claim (Doc. 108). The motions are fully briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the City and Hayden's motion for summary judgment (Doc. 95) is GRANTED in part and DENIED without prejudice in part, Olsten's motion for summary judgment (Doc. 102) is GRANTED in part and DENIED without prejudice in part, and the City's motion to dismiss or stay cross-claim is DENIED without prejudice.


The following facts are undisputed except where indicated; disputed facts are viewed in a light most favorable to the non-moving party. McGowan, Hurst, Clark & Smith, P.C. v. Commerce Bank, 11 F.4th 702, 710 (8th Cir. 2021).

Plaintiff's claims arise within the context of a series of protests and police responses in the greater St. Louis area that occurred after Stockley's acquittal on first degree murder charges on September 15, 2017 (City's/Hayden's Statement of Uncontroverted Material Facts (“SUMF”), Doc. 97, ¶¶ 1, 2, 15; Olsten's Statement of Uncontroverted Material Facts (“OSUMF”), Doc. 104, ¶ 2). Some protests were peaceful, and others were not (SUMF ¶¶ 8, 10, 12). Plaintiff participated


in a protest on September 29, 2017 near Busch Stadium (SUMF ¶ 33; OSUMF ¶ 5). During that protest and as the crowd was moving on, there was an altercation between police officers and at least two protestors that resulted in one protestor being tased by police and two protestors being arrested (SUMF ¶ 22; OSUMF ¶¶ 14, 16). Defendant Olsten was not involved in the altercations, the tasing, or the arresting, but did assist in escorting one arrestee away from the area (SUMF ¶ 23; OSUMF ¶ 17).

During these arrests, several protestors, including plaintiff, returned to the area and yelled and screamed at the police, including Olsten who was handing an arrestee to another officer (SUMF ¶¶ 24, 25; OSUMF ¶¶ 18, 19). Olsten commanded the group to “get back” multiple times while holding his pepper spray cannister in his hand (SUMF ¶ 29; OSUMF ¶ 20). One protestor, Amir Brandy, and Olsten then engaged in a shouting match which is repeated here for context, although the exact particulars of the exchange are not relevant to plaintiff's claims. Brandy stated “if you put that shit in my face, I'll fuck you up” a few times (SUMF ¶ 26). In response, Olsten taunted the protestors and escalated the confrontation with Brandy by stating “come and fuck me up” while telling him to “keep coming” and motioning him forward with the hand holding the pepper spray (Plaintiff's Statement of Additional Facts (“PSUMF”), Doc. 99, ¶¶ 23, 25, 104, 108). During this confrontation, a female voice shouts out “shoot this motherfucker” or “shut this motherfucker down” - the parties dispute the exact words (SUMF ¶ 31 (including plaintiff's response)). At which point, Olsten deploys his pepper spray towards the crowd, striking plaintiff who was standing near Brandy (SUMF ¶¶ 32, 33; OSUMF ¶ 36). During the verbal exchange between Brandy and Olsten, Commissioner Hayden was standing near (perhaps within 5 feet of) Olsten but had his back turned to the events (SUMF ¶¶ 36, 37). He did not order Olsten to deploy pepper spray and had no knowledge that pepper spray would be deployed (SUMF ¶¶ 34, 37).


These events are captured by three video recordings, two of which have audio components. One video was recorded by Heather Di Mian and captures a number of protestors running towards where the arrests were occurring; Olsten pepper spraying a number of people; and Di Mian's verbal response to the events. Another video has no audio and appears to be a traffic camera perched atop a traffic signal or pole. It is a downward view of the events and captures: one of the arrests (where the person was tased); officers escorting the arrestee while a crowd of persons follow; and then, Olsten deploying his pepper spray and dispersing the crowd. The video also shows the aftermath, including various protestors who appeared visibly and negatively affected by the pepper spray. The third video is referred to as “Maverick” by the parties and appears to be recording Brandy's actions and the events surrounding him. The video and audio show the verbal exchange between Brandy and Olsten and plaintiff is visible in the video for a few seconds. While the parties dispute some of the details of what is depicted in the videos, which, of course, are open to interpretation, the salient events are undisputed: after the individuals were arrested, a group of protestors returned to the area of the arrests, Brandy and Olsten engaged in a verbal confrontation with Olsten encouraging the confrontation, and Olsten deployed his pepper spray in a sweeping motion that disperses the crowd.

Olsten's use of pepper spray in this situation was not investigated by Commissioner Hayden nor did he speak to Olsten about the event (OSUMF ¶ 63, 67). There is no evidence that any person was arrested or detained during the incident.

Additional facts will be included below if necessary.[2]


Legal Standard

Summary judgment is appropriate where “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). Under Rule 56, a party moving for summary judgment bears the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Once the moving party discharges this burden, the non-moving 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.” Anderson, 477 U.S. at 247. The non-moving party may not rest upon mere allegations or denials in the pleadings. Id. at 256. “Factual disputes that are irrelevant or unnecessary” will not preclude summary judgment. Id. at 248. The Court must construe all facts and evidence in the light most favorable to the non-movant, must refrain from making credibility determinations and weighing the evidence, and must draw all legitimate inferences in favor of the non-movant. Id. at 255.


I. § 1983 claims (Counts I, II, IV, and V)

Olsten and Hayden argue that they are entitled to qualified immunity on Counts I, IV and V, the claims alleging § 1983 claims of retaliation, excessive force, and failure to intervene, respectively. “Qualified immunity shields a government official from suit under § 1983 if his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (citations omitted).


“Qualified immunity analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct.” Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (quotation marks and citations omitted). The doctrine “protects all but the plainly incompetent or those who knowingly violate the law.” City of Tahlequah, Oklahoma v. Bond, U.S., 142 S.Ct. 9, 11, 2021 WL 4822664, *2 (2021).

It is within the Court's discretion to determine which prong of the qualified immunity analysis to address first. Kelsay, 933 F.3d at 979. The first prong requires an analysis of the substantive claims against each defendant. As to the second prong, a right is clearly established when it is “sufficiently clear that every reasonable official would have...

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