Burbridge v. City of St. Louis

• Decision Date: 25 June 2021
• Docket Number: No. 20-1029,20-1029
• Citation: 2 F.4th 774
• Parties: Jennifer L. BURBRIDGE, Personal Representative of the Estate of Drew Eugene Burbridge, Deceased, Plaintiff - Appellee Jennifer L. Burbridge, Plaintiff v. CITY OF ST. LOUIS, MISSOURI ; John Doe, #4 in his individual and official capacities; John Doe, #2 in his individual and official capacities; John Doe, #3 in his individual and official capacities, Defendants Marcus Biggins, P.O.; Sgt. Brian Rossomanno, Defendants - Appellants John Doe, in his individual and official capacities, Defendant Samuel Rachas, in his individual and official capacities; Keith Burton, in his individual and official capacities, Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.4th 774

Jennifer L. BURBRIDGE, Personal Representative of the Estate of Drew Eugene Burbridge, Deceased, Plaintiff - Appellee¹Jennifer L. Burbridge, Plaintiff

v. CITY OF ST. LOUIS, MISSOURI ; John Doe, #4 in his individual and official capacities; John Doe, #2 in his individual and official capacities; John Doe, #3 in his individual and official capacities, DefendantsMarcus Biggins, P.O.; Sgt. Brian Rossomanno, Defendants - AppellantsJohn Doe, in his individual and official capacities, DefendantSamuel Rachas, in his individual and official capacities; Keith Burton, in his individual and official capacities, Defendants - Appellants

No. 20-1029

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2021

Filed: June 25, 2021

Brandy B. Barth, Talmage E. Newton, Newton & Barth, Saint Louis, MO, for Plaintiff-Appellee.

Robert Henry Dierker, Jr., Abby Joe Duncan, Assistant City Counselor, Brandon David Laird, Amy Raimondo, City Counselor's Office, Saint Louis, MO, for Defendant-Appellant Marcus Biggins, P.O.

Robert Henry Dierker, Jr., Brandon David Laird, Amy Raimondo, City Counselor's Office, Saint Louis, MO, for Defendant-Appellant Sgt. Brian Rossomanno.

Robert Henry Dierker, Jr., Brandon David Laird, City Counselor's Office, Saint Louis, MO, for Defendants-Appellants Samuel Rachas, Keith Burton.

Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following his arrest at a protest, Drew Burbridge sued the City of St. Louis and several of its police officers under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights and conspiracy to violate his rights, and under Missouri state law. The officers asserted the defense of qualified immunity on the § 1983 claims and the defense of official immunity on the state law claims. The district court² denied the officers’ motion for summary judgment, and the officers appealed. We affirm.

I.

Drew Burbridge (Drew)³ and his wife Jennifer Burbridge (collectively, the Burbridges) are documentary filmmakers who were covering protests in downtown St. Louis, Missouri, following Officer Jason Stockley's acquittal of charges arising from the death of Anthony Lamar Smith. On September 17, 2017, the Burbridges were present during nighttime protests when officers declared an unlawful assembly and gave a dispersal order; however, neither of the Burbridges heard any order to disperse. The Burbridges began recording the protesters’ activities with their video camera.

Eventually, St. Louis police officers began encircling the intersection where the Burbridges were. The Burbridges approached the officers and identified themselves as journalists but were told they could not leave. They then complied with police orders to move back and sit on the ground. While they were sitting on the sidewalk, an unidentified officer allegedly said, "That's him," and then two officers grabbed Drew and "dragged him away." R. Doc. 104, at 5. Officers then placed Drew on the ground face down, and while he was compliant and not resisting, officers twice pepper-sprayed Drew in the face. Officers then proceeded to strike Drew repeatedly on the back of the head, in the ribs, and on the shoulder, causing him to lose consciousness. At some point during the altercation, officers restrained Drew's hands with zip-ties. Drew was arrested and charged with "failure to disperse" and was taken into custody at the St. Louis City Justice Center.

The Burbridges sued the City of St. Louis (the City) and several St. Louis police officers, including Officer Marcus Biggins (Officer Biggins), alleging numerous violations of their constitutional rights under 42 U.S.C. § 1983 and violations of state law. As relevant to this appeal,⁴ they alleged that the officers used excessive force in violation of the Fourth Amendment and committed state law assault and battery against Drew, retaliated against Drew for exercising his First Amendment rights, and conspired with each other to violate Drew's rights. The conspiracy claim was brought against the officers in their individual and official capacities, the latter of which the district court treated as a claim against the City. At summary judgment, the City argued that the conspiracy claim against it was barred by the intracorporate conspiracy doctrine. Additionally, the officers raised the defense of qualified immunity as to the First and Fourth Amendment claims and the defense of official immunity as to the assault and battery claim. As to the conspiracy claim, the officers argued that there was no evidence demonstrating that they had agreed among themselves to violate Drew's constitutional rights and that there was no underlying constitutional violation. The district court granted summary judgment in favor of the City on the conspiracy claim, finding that Drew failed to provide sufficient evidence that the City conspired with the officers and declining to reach the issue of the intracorporate conspiracy doctrine. The district court denied summary judgment to the officers on the excessive force, First Amendment retaliation, conspiracy, and assault and battery claims. All officers appeal the denial of summary judgment on the conspiracy claim, but only Officer Biggins appeals the denial on the claims of excessive force, First Amendment retaliation, and assault and battery.

While this appeal was pending, Drew passed away. A Missouri probate court appointed Jennifer Burbridge as Drew's personal representative. Ms. Burbridge, as personal representative of Drew's estate, filed a motion in this Court seeking to be substituted as a party pursuant to Federal Rule of Appellate Procedure 43(a)(1), which this Court granted.

II.

We must first address the scope of our jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. "When a district court issues an order denying qualified immunity, we can immediately review that order ‘to the extent that it turns on an issue of law.’ " Hoyland v. McMenomy, 869 F.3d 644, 651 (8th Cir. 2017) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). On an appeal of a denial of qualified immunity at summary judgment, "we can consider [only] the legal question whether, in view of the facts that the district court deemed sufficiently supported for summary judgment purposes, the individual defendants’ conduct was objectively reasonable given their knowledge and the clearly established law." Id. (citation omitted).

Our jurisdiction to review such denials of qualified immunity "does not extend to the issue of ‘whether or not the pretrial record sets forth a "genuine" issue of fact for trial.’ " Thompson v. Dill, 930 F.3d 1008, 1012 (8th Cir. 2019) (quoting Johnson v. Jones, 515 U.S. 304, 320, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). Accordingly, we generally lack jurisdiction to review denials of qualified immunity "simply because we disagree with the district court as to whether there is sufficient evidence to conclude a material fact is genuinely in dispute." Id. That question is beyond our limited appellate jurisdiction unless the appellant can show that "the record plainly forecloses the district court's finding of a material factual dispute." See id. ; cf. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."). Additionally, "[t]he interlocutory appeal for denial of qualified immunity is a vehicle with limited capacity and cannot accommodate other interlocutory appellate arguments unless they are ‘inextricably intertwined’ with the defense of qualified immunity." White v. McKinley, 519 F.3d 806, 815 (8th Cir. 2008) (citation omitted). "An interlocutory appeal is not inextricably intertwined with the question of qualified immunity if the resolution of the two issues requires entirely different analysis." Id.

"We review a district court's qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [the plaintiff] and drawing all reasonable inferences in [his] favor." Hoyland, 869 F.3d at 648 (second alteration in original) (citation omitted). Additionally, we "accept[ ] as true the facts that the district court found were adequately supported, as well as the facts the district court likely assumed." Id. at 648-49 (alteration in original) (citation omitted).

III.

Officer Biggins contends that he is entitled to (1) qualified immunity on Drew's Fourth Amendment excessive force and First Amendment retaliation claims, and (2) official immunity on Drew's state law assault and battery claim. On the Fourth Amendment claim, Officer Biggins argues that he applied only de minimis force by kneeling on Drew's legs during the arrest and that the use of de minimis force does not constitute a Fourth Amendment violation. Relatedly, he argues that his decision "to apply minimal force" to Drew to aid in Drew's arrest was discretionary, entitling him to official immunity under state law as to the assault and battery claim.⁵ On the First Amendment claim, his sole argument is that if Drew's excessive force claim fails, the First Amendment claim necessarily fails as well.

"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." Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009) (citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). "Courts conduct a two-part inquiry to determine whether qualified immunity protects a[n] ... official from liability: (1) whether the facts taken in a light most favorable to [the plaintiff] make out a violation of a constitutional...