Faulk v. City of St. Louis

• Citation: 30 F.4th 739
• Decision Date: 06 April 2022
• Docket Number: 21-1116
• Parties: Michael FAULK, Plaintiff - Appellee v. CITY OF ST. LOUIS, MISSOURI, Defendant Gerald Leyshock, Col., in his individual capacity, et al., Defendants - Appellants 29 Media Organizations; Reporters Committee for Freedom of the Press, Amici on Behalf of Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

30 F.4th 739

Michael FAULK, Plaintiff - Appellee

v. CITY OF ST. LOUIS, MISSOURI, DefendantGerald Leyshock, Col., in his individual capacity, et al., Defendants - Appellants29 Media Organizations; Reporters Committee for Freedom of the Press, Amici on Behalf of Appellee

No. 21-1116

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2021

Filed: April 6, 2022

Nathaniel R. Carroll, Maureen Hanlon, Blake A. Strode, John McCann Waldron, Arch City Defenders, Saint Louis, MO, David Curtis Nelson, Nelson & Nelson, Belleville, IL, for Plaintiff - Appellee.

Robert Henry Dierker, Jr., Erin K. McGowan, Assistant City Counselor, Andrew D. Wheaton, City Counselor's Office, Saint Louis, MO, for Defendants - Appellants Gerald Leyshock, Col., Scott Boyher, Lt., Timothy Sachs, Lt., Randy Jemerson, Sgt., Matthew T. Karnowski, Sgt., Brian Rossomanno, Sgt., and Andrew Wismar.

Erin K. McGowan, Assistant City Counselor, Andrew D. Wheaton, City Counselor's Office, Saint Louis, MO, for Defendants - Appellants Robert Stuart, Officer, Anthony Wozniak, Sgt., Tom Long, Sgt., John Gentilini, Officer, James Wood, Officer, Bryan Barton, Officer, Lawrence O'Toole, LT. COL., Brian Gonzales, Officer, and James Harris, III, Officer.

Bruce David Brown, Emily Brown, Gabriel Rottman, Katie Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Amici on Behalf of Appellees 29 Media Organizations and Reporters Committee for Freedom of the Press.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

LOKEN, Circuit Judge.^*

This is one of numerous lawsuits arising out of protests and unrest on September 15 to 17, 2017, following the acquittal of former St. Louis Metropolitan Police Department ("SLMPD") Officer Jason Stockley in the killing of Anthony Lamar Smith. For an overview of the events, the reader is referred to Eastern District of Missouri Judge Catherine D. Perry's November 15, 2017, opinion granting a preliminary injunction against the City of St. Louis regarding enforcement of its unlawful assembly ordinance and use of chemical agents against persons engaged in expressive, non-violent activity. Ahmad v. City of St. Louis, No. 4:17 CV 2455 CDP, 2017 WL 5478410, at *1-5 (E.D. Mo. Nov. 15, 2017).¹ This opinion followed a three-day evidentiary hearing at which eighteen witnesses testified. A flood of § 1983 damage actions followed. We list actions we are aware of in Appendix A.

In this action, journalist Michael Faulk alleges he was unlawfully assaulted, pepper sprayed, detained in an unlawful mass arrest, and incarcerated for thirteen hours. He sues the City of St. Louis and multiple SLMPD officers for First, Fourth, and Fourteenth Amendment violations, conspiracy to deprive him of civil rights, and supplemental state law claims. As relevant here, one defendant, SLMPD Officer James Wood, moved to dismiss the § 1983 claims, arguing Faulk's amended complaint failed to state a claim and Wood is entitled to qualified immunity. See Fed. R. Civ. P. 12(b)(6). Five months later, the individual defendants filed a Rule 12(c) motion for judgment on the pleadings on the conspiracy claim, arguing they are entitled to qualified immunity because the claim is barred by the intracorporate conspiracy doctrine. The district court denied both motions in separate orders the officer defendants now appeal. We have jurisdiction to review an interlocutory order denying qualified immunity "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Reviewing both rulings de novo , interpreting the complaint in favor of Faulk, the non-moving party, and assuming well-pleaded facts as true, we reverse. See Buckley v. Hennepin Cty., 9 F.4th 757, 760 (8th Cir. 2021) (standard of review).

I. Background

Faulk's amended complaint alleges that he followed demonstrations in and around downtown St. Louis on his bicycle the afternoon and evening of September 17, wearing his media ID card and frequently tweeting updates and posting images. In the evening, after cycling to the Olive Street and Tucker Boulevard intersection, he saw a line of police officers approach from the west and order those gathered to move west on Locust Street or north on Tucker. Faulk and many others complied.

Four lines of police officers then formed a "kettle" at the Tucker-Washington intersection, blocking all means of egress. Faulk asked to leave, shouting "Post Dispatch" and displaying his press credentials. He was ignored. Officers yelled "Stop Resisting" and "Get Down," indiscriminately pepper spraying the crowd. Faulk went to the ground, kneeling over his bicycle. He was grabbed, struck with a police baton, pepper sprayed, restrained with painful plastic "zip-cuffs," and eventually arrested along with over 100 others. After the arrest, Officer Wood retrieved Faulk's bicycle, which another officer had thrown in the street, and placed it in police custody. Transported to the St. Louis City Justice Center ("CJC"), Faulk was placed in a cell with approximately fifteen others, then isolated when he tried to interview his cellmates. He was denied medical attention and detained for thirteen hours, then released and charged with "failure to disperse."

Faulk filed this action in February 2018 against the City of St. Louis, six "supervising" SLMPD officers in their individual capacities, and five "John Doe" defendants. A seventh SLMPD officer was added in a Second Amended Complaint filed in August 2019. The district court ordered the parties to conduct limited discovery to identify the John Doe defendants. In January 2020, Faulk filed a motion for leave to file a Fifth Amended Complaint adding nine individual defendants and removing fictitious John Doe defendants. Faulk explained, "Defendants, through a [Rule] (30)(b)(6) designee, were able to use video clips and photo stills prepared by Plaintiff to identify the arrest team who seized Mr. Faulk, and other officers in close proximity to Mr. Faulk." The district court granted the motion. On January 30, Faulk filed a 62-page Fifth Amended Complaint ("FAC") containing 332 numbered paragraphs. The FAC identifies six of the new defendants as "Doe Police Officers" who arrested Faulk. It alleges that new defendants Tom Long and James Wood were SLMPD officers "working during the events of September 17, 2017," and that new defendant Lawrence O'Toole was SLMPD Acting Commissioner who "is vicariously liable for the acts and omissions of the Defendant Officers and Sergeants." Faulk attached to the FAC six exhibits totaling over 700 pages, including the transcript of the October 2018 preliminary injunction hearing and a sworn declaration from Ahmad v. St. Louis, excerpts from which were repeatedly cited in the FAC.

The FAC asserted twelve federal and state claims. Three § 1983 federal claims are at issue in this interlocutory appeal. Count I alleges all defendants violated Faulk's First Amendment rights by "interfering with his ability to gather information and cover a matter of public interest as a member of the media," and by "isolating him from other arrestees and refusing to allow him back into the cell with other arrestees unless he forfeited his pen and paper." Count II alleges the individual defendants violated the Fourth Amendment by unreasonably seizing Faulk during the kettling event and by arresting him without arguable probable cause. Count V alleges all defendants conspired "to undertake a course of conduct that violated Mr. Faulk's civil rights." (Wood is not a named defendant in Counts III and IV, which allege Fourth Amendment excessive force claims against eight individual defendants, or in municipal liability Count VI. The pending state law claims in Counts VII-XII are against all defendants but are not at issue on appeal.)

In denying Wood's motion to dismiss, and defendants’ motion for judgment on the pleadings on Count V, the district court concluded the FAC is well pled, qualified immunity is not warranted at the motion to dismiss stage, and the intracorporate conspiracy doctrine provides no basis to grant qualified immunity on Count V. Wood appeals the denial of qualified immunity on Counts I, II, and V. All defendants appeal the court's refusal to grant judgment on the pleadings on Count V based on the intracorporate conspiracy doctrine.

II. Counts I and II

Qualified immunity ensures that government officials performing discretionary functions "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects an official "unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quotation omitted). We have discretion to decide which requirement "to tackle first." Id. As "an immunity from suit rather than a mere defense to liability ... [qualified immunity] is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original). Thus, "a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a final decision within the meaning of § 1291." Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotations omitted).

We review the denial of a motion to dismiss on qualified immunity grounds de novo , viewing the FAC in light most favorable to Faulk and accepting all factual allegations as true. See Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018). The FAC "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556...