Davis v. City of Saint Louis, Mo
| Decision Date | 13 September 2021 |
| Docket Number | 4:18CV1574 HEA |
| Parties | EMILY DAVIS, Plaintiff, v. CITY OF SAINT LOUIS, MISSOURI, et al., Defendants, |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendants' Motion to Dismiss Third Amended Complaint, [Doc. No. 107]. Plaintiff opposes the Motion, which has been fully briefed. For the reasons set forth below, the Motion to Dismiss is denied in part and granted in part.
Facts and Background[1]
This and several other cases filed in this District share a general set of facts regarding the actions of St. Louis Metropolitan Police Department (“SLMPD”) officers during peaceful protests following the September 15, 2017 verdict in State of Missouri v. Stockley. See Ortega v. City of St. Louis, No. 4:18 CV 1576 DDN, 2021 WL 3286703 (E.D. Mo. Aug. 2, 2021); Aldridge v. City of St. Louis, Mo., No. 4:18-CV-1677 CAS, 2019 WL 1695982 (E.D. Mo. Apr. 17, 2019); Laney v. City of St. Louis Mo., No. 4:18-CV-1575 CDP, 2019 WL 2423308, (E.D. Mo. June 10, 2019); Laird v. City of St. Louis, Mo., No 4:18-CV-1567 AGF, 2019 WL 2647273 (E.D. Mo. June 27, 2019); Alston v. City of St. Louis, Mo., No. 4:18-CV-1569 AGF, 2019 WL 2869896 (E.D. Mo. July 3, 2019); Thomas v City of St. Louis, Mo., No. 4:18-CV-1566 JAR, 2019 WL 3037200 (E.D. Mo. July 11, 2019).
Those facts, as well as the allegations specific to Plaintiff Emily Davis, are as follows:
In 2018, Plaintiff commenced this action after the St. Louis Metropolitan Police Department (“SLMPD”) arrested her and others on September 17, 2017. The Third Amended Complaint alleges various claims under 42 U.S.C. § 1983 (Counts I, II, III, IV, XII, and XIII) and under Missouri state law (Counts V, VI, VII, VIII, IX, X, XI, and XIV). Plaintiff has previously voluntarily dismissed Counts IX and X.
Plaintiff asserts the remaining claims: Count I: seizure under the Fourth and Fourteenth Amendments against the defendant officers;[2] Count II: Violations of free speech press, association, and assembly under the First and Fourteenth Amendments against the defendant officers; Count III: Conspiracy to violate civil rights against the defendant officers and defendant Lt. Col. Lawrence O'Toole; Count IV: Monell Claim against the City of St. Louis for Failure to Train, Discipline, Supervise and a Custom of Conducting Unreasonable Search and Seizures and Use of Excessive Force; Count V: Assault against the defendant officers; Count VI: False arrest against the defendant officers; Count VII: Abuse of process against the defendant officers and defendant Lt. Col. Lawrence O'Toole; Count VIII: Malicious prosecution against the defendant officers and defendant O'Toole; Count XI: Vicarious liability under the City of St. Louis Charter against defendants O'Toole and Charlene Deeken, Director of Public Safety for the City of St. Louis; Count XII: Excessive force under the Fourth and Fourteenth Amendments against the defendant officers; Count XIII: Failure to intervene in the use of excessive force against the defendant officers and defendant O'Toole; and Count XIV: Battery against defendant officers.
Defendants seek to dismiss the Third Amended Complaint for several reasons including the failure to state a claim upon which relief can be granted. The individual defendants also assert they are entitled to qualified immunity on the counts asserting violations of §1983 and to official immunity for the state law claims. For purposes of this Motion to Dismiss, the Court must accept as true the facts as alleged in the Third Amended Complaint. Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
On September 15, 2017, the Circuit Court of the City of St. Louis, Hon. Timothy Wilson, issued its findings and verdict in State of Missouri v. Stockley acquitting former SLMPD officer Jason Stockley of first-degree murder of Anthony Lamar Smith. The verdict prompted some members of the St. Louis community to engage in protests in St. Louis and the surrounding communities. The protests concerned not only the verdict but broader issues, including racism and the use of force by police officers. Although most of the protests were nonviolent, SLMPD officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields” and carrying chemical agents.[3] The specific allegations regarding Plaintiff in this case are: On September 15, 2017, at around 8:30 PM, Plaintiff went to the Central West End neighborhood of St. Louis to join a clergy-led gathering. Plaintiff and her friend parked on Lindell Boulevard and then rode bicycles to the site of the gathering on Euclid Avenue. Plaintiff took a photograph of people sitting in the street and posted it to Facebook at 8:34 PM. She observed several groups begin to march north on Euclid near Maryland Avenue. Plaintiff was unsure which direction the majority of protesters were headed, so she and her friend rode their bicycles west on Waterman Boulevard across Kingshighway to try to see where protesters were gathered. As Plaintiff and her friend approached Lake, she moved to meet the several dozen people gathered north of Waterman. Plaintiff and her friend approached the intersection of Waterman and Washington and saw a line of police officers walk into the intersection. Plaintiff observed Defendant Rossomanno shouting at the protesters to leave.
Plaintiff and others turned to leave and then noticed a police officer yank a bicycle out from under the man riding the bicycle which resulted in the man being knocked off the bicycle with the bicycle falling on top of him. Plaintiff observed that the man who was knocked off his bicycle had been carrying medical supplies in a crate attached to his bicycle. After the man fell from his bicycle, Plaintiff reached over to try to help him off the ground. As Plaintiff was trying to help the man up from the ground, Defendant Rossomanno approached her from behind, called her by her name and yelled at her to leave the area. The fact that Defendant Rossomanno knew Plaintiff by name and yelled her name stood out to Plaintiff. At the time, Defendant Rossomanno was approximately five feet behind Plaintiff. Instantly and without warning, Defendant Rossomanno sprayed Plaintiff's posterior. Plaintiff estimates the spray came from 12 to 18 inches away. Defendant Rossomanno then yelled that Plaintiff had two seconds to get out of the area.
Without oral warning or other notice, Defendant Rossomanno continued toward Plaintiff, reached his arm around the front of her and sprayed her a second time in the face and hair. The spray caused Plaintiff pain and made it difficult for her to see.
Plaintiff discontinued assistance to the man who had been knocked from his bicycle, and she was led away to safety by her friend. Defendant Rossomanno made no attempt to arrest Plaintiff.
Before getting sprayed, Plaintiff did not hear any orders to disperse. Plaintiff was not breaking any laws at the time, and nothing about the situation would lead any unbiased observer to believe that Defendant Rossomanno was in any danger at the time he sprayed Plaintiff.
On September 17, 2017, Plaintiff and her friend arrived at a march that was underway in downtown St. Louis. When the march ended near the police headquarters, Plaintiff gathered to talk to acquaintances. She left the area near the police headquarters by bicycle to use the portable restrooms set up near the library.
After using the restroom, Plaintiff rode to her car parked on Chestnut before riding her bicycle to find the protesters again. Plaintiff caught up to the marching protesters and began walking her bicycle near the rear of the march alongside Darryck Dean from the U.S. Department of Justice's Community Relations Services. Plaintiff and Dean came upon broken flowerpots but did not see or hear the pots being broken. She did not engage in any violence or destruction of property. Plaintiff observed an individual running from the front of the march back toward Plaintiff and yell that tear gas had been deployed at the front of the march. Plaintiff and others near the back of the march looked for an exit. It was now after 9:00 PM, and the activity downtown had virtually ceased.
As Plaintiff and her friend were returning to Plaintiff's car, they came across a police line blocking Locust east of Tucker Boulevard. The police officers issued a dispersal order to the ten or fewer civilians in the area and directed them to head either north or west. Plaintiff and others turned to exit west on Locust toward Tucker but were met by a line of police vehicles blocking Tucker south of the intersection.
Upon meeting the line of police vehicles, Plaintiff and others turned north on Tucker. As Plaintiff was stopped talking with friends, she heard “banging noises”and saw a line of SLMPD officers advancing from the north. The sound that she heard was SLMPD officers pounding their batons in unison. Plaintiff turned away from the advancing officers and noticed another group of SLMPD officers advancing from the south.
After noticing SLMPD officers closing in from the north and south, Plaintiff and others attempted to leave the area by going west on Washington. She heard no dispersal order or commands. As Plaintiff and others were attempting to leave west on Washington, Plaintiff encountered another set of SLMPD officers blocking the exit. As she turned back east on Washington to Tucker, she encountered a fourth line of SLMPD officers on bicycles blocking the egress east on Washington.
The fourth line of SLMPD officers began shouting that everyone was being arrested. Plaintiff and her friend sat next to their bicycles. The...
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