Street v. O'Toole
| Decision Date | 22 February 2021 |
| Docket Number | Case No. 4:19 CV 2590 CDP |
| Parties | ALICIA STREET, et al., Plaintiffs, v. LAWRENCE O'TOOLE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Five named plaintiffs filed this putative class action arising out of the mass arrest "kettling" incident that occurred in the City of St. Louis on September 17, 2017. Their First Amended Complaint names as defendants the City of St. Louis, the then-acting Chief of Police Lawrence O'Toole, the Director of Public Safety Charlene Deeken, and more than three hundred individual police officers. Plaintiffs bring their claims under 42 U.S.C. §1983 and Missouri state law. They make specific factual allegations against only a handful of the individual defendants, although most of the seventeen counts are brought against either all defendants or all defendant police officers; most of the factual allegations are made against "defendants." All defendants have filed motions to dismiss.
I conclude that all claims against the several hundred defendants against whom no specific allegations are made must be dismissed without prejudice. I will also dismiss the punitive damages claims against the City, the § 1983 claims of deliberate indifference to serious medical needs, and the state law claims for abuse of process, malicious prosecution, conversion, and failure to intervene. I decline to exercise supplemental jurisdiction over the novel state-law claim that the St. Louis City Charter imposes vicarious liability for all actions of the police on September 17, 2017 and will dismiss that claim without prejudice.
On Friday, September 15, 2017, the Circuit Court of the City of St. Louis issued its verdict in State of Missouri v. Stockley,2 prompting anti-police demonstrations and protests in the City of St. Louis and surrounding areas. Although most of the protests were peaceful, officers of the St. Louis Metropolitan Police Department (SLMPD) amassed at several protest sites wearing military-like tactical dress and armed with riot gear. As the protests continued throughout the weekend in different city locations, there were multiple instances of police use of chemical agents such as pepper spray to disperse crowds.
On the evening of Sunday, September 17, 2017, protesters had gathered in downtown St. Louis. After property damage was found in one area of downtown, police began blocking roads and directing civilians to the intersection of Washington Avenue and Tucker Blvd. Plaintiffs allege that defendants Lt. Timothy Sachs and Lt. Col. Gerald Leyshock planned to "kettle" or gather everyone into that intersection, not allow anyone in the area to leave, and arrest them all. They allege that supervisory defendants Sgt. Scott Boyher, Sgt. Matthew Karnowski, Sgt. Randy Jemerson and Lt. Brian Rossomanno supervised and directed line officers under their command to form lines of officers blocking each of the four streets leading to the intersection in anticipation of the mass arrests. They allege that defendants knew or should have known that this action would result in the arrests of people without probable cause.
Shortly after 11:00 p.m. and without warning, the four lines of officers began to converge and plaintiffs were informed that they were all under arrest. Plaintiffs allege that the protesters had not been engaged in any violence or illegal behavior before the incident, and many of the gathered people were residents of the area, members of the press, and others peacefully watching the protests. Plaintiffs allege that they instantly put their hands in the air to surrender, and that they all attempted to get to the ground when ordered to do so. Regardless, SLMPD officers indiscriminately sprayed members of the crowd with pepper spray andkicked and beat those in the crowd, most of whom were not resisting in any way. Officers then tightly handcuffed every individual with plastic zip ties and the approximately 120 arrestees3 were transported to the St. Louis City Justice Center (CJC), where they all remained confined without receiving medical assistance for their injuries. Plaintiffs were released 12-24 hours later.
Upon release, all were given summonses showing they had been charged with "failure to disperse" and instructing them to appear at St. Louis City Municipal Court on October 18, 2017. On October 13, 2017, the St. Louis City Counselor's office withdrew the summonses. None of the plaintiffs were subsequently charged.
The named plaintiffs offer similar accounts of the night in question. Plaintiff Alicia Street alleges that she observed and participated in several peaceful marches throughout downtown St. Louis on the day of September 17, 2017. Around 11:00 p.m. she arrived at the intersection of Tucker and Washington and saw that officers were beginning to block the streets. She attempted to leave, but officers ordered her to move back towards the center of the intersection. When the mass arrest began, Street got on the ground as ordered; she could taste pepper spray, so sheasked defendant Jemerson, whom she knew, if she could put on a facemask she was carrying. An unknown officer standing behind him then jabbed Street with a baton, knocking her glasses off. She was then restrained with a painful plastic zip tie, transported to the CJC, and released from custody approximately twelve hours later. Her glasses were returned when she was released from custody.
Plaintiff Ronald Harris was observing the protests in downtown St. Louis with his three cousins. Around 10:30 P.M., they began following a small group of protesters heading north along Tucker. Harris noticed the police lines forming and attempted to leave the area; officers prevented him from leaving and ordered him to turn around. As the arrest unfolded, Harris got on his stomach on the pavement as ordered; however, unknown officers then stood on his back and neck while simultaneously spraying him with a continuous stream of pepper spray. He was then tightly handcuffed with a plastic zip tie and officers removed his cell phone from his hand and threw it on the ground. Throughout the process, officers insulted him and made derogatory comments about "activists." Harris was transported to the CJC, remained tightly handcuffed for several hours, and was released about twelve hours later. Harris had bruises on his back and neck, cuts on his wrists from the cuffs, and permanent intermittent numbness in his hands.
Plaintiff Fudail McCain was socializing with friends and family members at the intersection of Tucker and Washington when he noticed the growing policepresence in the area and chanting from SLMPD officers. He did not observe any criminal acts or hear any dispersal orders that would have indicated that anything was amiss. When the lines of police officers began converging, he attempted to leave and was ordered to turn back around. McCain got on the ground and was sprayed several times with pepper spray. He was cuffed with a painful plastic zip tie, brought to the CJC, and released twelve hours later.
Plaintiff Ashley Theis was observing protests and was recording police activity in downtown St. Louis on the evening of September 17, 2017. An unknown SLMPD supervisor told Theis she could record officers at the Olive and Tucker intersection if she joined a group of press and media personnel gathered on the sidewalk, so she joined that group. As the night wore on, Theis became frightened of the SLMPD officers chanting and beating their batons against their shields, so she attempted to leave the area to get to her friends' nearby car; officers threatened her with pepper spray, prevented her from leaving, and directed her back toward the middle of the Tucker and Washington intersection. When the lines of officers converged, she was knocked to the ground, pepper sprayed, roughly zip-tied, and trampled by officers walking around her, injuring her foot and ankle. Upon arrival at the CJC she informed a nurse that she has lupus and that the pepper spray covering her skin, face, and eyes was causing extreme pain and discomfort. The nurse made no effort to clean the pepper spray off orotherwise assist Theis for the 24 hours that she spent in jail. Theis continues to suffer from anxiety and depression, as well as ongoing pain in her foot, arm, and eyes.
Plaintiff Nicole Warrington observed several protests throughout St. Louis on the day in question. That evening, she was recording police activity with a small group of other observers near Tucker and Washington when she noticed the growing police presence in the area. At around 11:25 P.M., Warrington attempted to leave between a gap in the lines of SLMPD officers, but unknown officers stopped her and pushed her back towards the center. When the police yelled that everyone was under arrest, Warrington got on the ground and felt pepper spray on her back and legs. An SLMPD officer took her backpack and cellphone, stopping it from recording. She was then arrested, transported to the CJC, and confined for 12 hours; she had marks and numbness on her hands and wrists for weeks and sought counseling.
Plaintiffs bring their Amended Complaint in seventeen counts. Counts I - VI are brought under 42 U.S.C. § 1983. The first four counts are brought against "all defendant officers" and allege violations of plaintiffs' First Amendment rights to assembly, association, speech, and press (Count I); Fourth Amendment rights to be free from excessive force (Count II) and from unlawful seizures (Count III); andconspiracy to deprive plaintiffs of their civil rights (Count VI). Count V is brought against "all defendants" and alleges they were deliberately indifferent to plaintiffs' serious medical needs. Count VI seeks to impose municipal liability of the City of St. Louis for the underlying § 1983 violations alleged in the earlier counts. Pl...
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