On January 27, 2022, the Eighth Circuit Court of Appeals decided Baude v. Leyshock[i], which serves as an excellent review of the law related to riots, use of force, arrest, and supervisor liability under the Fourth Amendment. Part One of this article will address the claims for unreasonable seizure and excessive force. The relevant facts of Baude are as follows:
[B]etween 8:00 p.m. and 9:00 p.m., a handful of individuals broke windows and destroyed flowerpots on Olive Street in downtown St. Louis. There is no evidence or allegation that Baude was in any way involved in the destruction of property. At approximately 8:48 p.m. and 8:51 p.m., Sergeant Brian Rossomanno gave two dispersal orders to the small number of protestors present at the time. Baude, however, was not at the location when the alleged dispersal orders were given.
Over the next two-plus hours, SLMPD officers began blocking roads and directing civilians to the intersection of Washington Avenue and Tucker Boulevard, which is an area containing condominiums, apartment buildings, and businesses, including restaurants and bars. While many of the individuals present were loitering and milling about the area, a small group of individuals were loudly reminding the officers of their right to assemble. Some sat down on the road, although a vehicle was captured on video driving slowly down the street, unimpeded by the group. Baude, who lived near the intersection, saw reports on social media that protestors had destroyed property in the area, and he decided to go out and investigate. Baude left his home around 9:30 p.m., completely unaware of the earlier dispersal orders.
Lieutenant Timothy Sachs presented to Lieutenant Colonel Gerald Leyshock his proposal to not let anyone leave the vicinity of Washington Avenue and Tucker Boulevard and to arrest everyone present. As alleged in the second amended complaint, Lieutenant Colonel Leyshock approved this course of action. Around 11:15 p.m. or 11:20 p.m., SLMPD officers began forming four perimeter lines, extending across the streets and sidewalks on Washington Avenue and Tucker Boulevard. The SLMPD officers surrounded, squeezed, and eventually blocked anyone from leaving the intersection of Washington Avenue and Tucker Boulevard in a technique Baude describes as “kettling.”
When Baude observed the police herding the bystanders into a confined space, he asked to leave the intersection but was informed by SLMPD officers that it was too late. In addition to Baude, those being contained by the SLMPD officers included downtown residents, business patrons, protestors, observers, and members of the press. Video evidence documented multiple citizens approaching SLMPD officers and requesting permission to leave. Their requests were not only ignored but also met with commands to “get back!” Video evidence also shows SLMPD officers grabbing an African American male, who was outside the kettle, and throwing him inside the kettle. Although an SLMPD officer suffered a serious injury during this ordeal, the second amended complaint alleges that the injured officer was an African American undercover SLMPD officer who was pepper sprayed and beaten by his fellow uniformed SLMPD officers.
Although the officers assert that they announced dispersal and unlawful assembly warnings in-person and via public address, the number of orders and who heard them is disputed. Baude, having been herded into the intersection by SLMPD officers and unable to leave, was pepper sprayed by an unnamed SLMPD officer and arrested as part of a mass arrest. Baude alleges that during the course of his arrest and detention, his hands were zip-tied, and he was transported to the City Justice Center where he was searched and held for fourteen hours. Baude was eventually released with a court date, which was later cancelled.
Baude further alleges that individuals inside the kettle with him, who were not acting violently or aggressively, were indiscriminately [and repeatedly doused with chemical agents without warning. Others were kicked, beaten, and dragged by SLMPD officers. Some individuals who were wearing goggles to protect themselves had their goggles removed by SLMPD officers and then sprayed directly in the face with pepper spray. During the arrests of over 100 people, Baude alleges that SLMPD officers yelled derogatory and homophobic epithets at those being arrested. He alleges that several individuals who had been handcuffed with zip-ties continued to suffer pain and numbness in their hands months after the incident.
In his second amended complaint, Baude included a photograph of at least sixteen smiling SLMPD officers posing with a banner that stated, “Thank you for visiting the Washington Avenue Entertainment District & Neighborhood,” which was posted on Twitter by an anonymous person on the night of the mass arrest. In addition, Baude alleges that during and after the arrests, SLMPD officers were observed “high fiving each other, smoking celebratory cigars, taking selfies on their personal phones with arrestees against the arrestees[‘] will, and chanting ‘Whose Streets? Our Streets!'” Baude further alleges that the day after the mass arrest, the SLMPD acting police chief, while standing next to then-St. Louis Mayor Lyda Krewson, reinforced the propriety of the officers’ actions by stating, “I’m proud to say the city of St. Louis and the police owned the night.” Approximately a year after the mass arrest, four SLMPD officers were indicted for their conduct. The indictment included emails demonstrating that officers were informed ahead of time that they would be deployed wearing military-type tactical dress to conceal their identities for the purpose of beating protestors.
Baude alleges that Lieutenant Colonel Gerald Leyshock, Lieutenant Scott Boyher, Lieutenant Timothy Sachs, Sergeant Randy Jemerson, Sergeant Matthew Karnowski, Sergeant Brian Rossomanno, Officer Timothy Bockskopf, and five “John Doe” officers of the SLMPD who removed their name tags from their uniforms in violation of guidance promulgated by the United States Department of Justice and standard law enforcement practices (collectively, the “Officers”) violated his constitutional rights when the Officers knew or should have known that there was no probable cause for his arrest and that there was no legal justification for use of force against him. As to Sergeant Rossomanno, Baude specifically alleges he “can be seen on video within arms-length of SLMPD officers who were pepper spraying and beating peaceful and compliant citizens. Rather than instructing these officers to cease violating the civil rights of the citizens, Defendant Rossomanno took control of the situation and directed the officers’ unlawful actions.[ii]
Baude filed suit in federal court and alleged that Lieutenant Colonel Leyshock, two lieutenants, three sergeants, and six officers violated his rights under the Fourth Amendment when they arrested him and used excessive force against him when he was in an area with other individuals who were possibly earlier involved in a riot. The officers filed motions for qualified immunity and the district court denied the motions. The officers then appealed to the Eighth Circuit Court of Appeals.
On appeal, the court examined the following Fourth Amendment claims: (1) unreasonable seizure for containing Baude in the “kettle” and arresting him without probable cause, (2) excessive force for the pepper spray and use of flex cuffs, (3) the liability of the supervisory officers for directing the subordinate officers to commit alleged constitutional violations, and (4) the liability of the subordinate officers. This article will discuss the first and second claims.
1. Unreasonable Seizure
The court of appeals examined whether detaining Baude with the crowd and his arrest were reasonable under the Fourth Amendment. Regarding his initial detention by being surrounded and “kettled” the court stated
When a person is surrounded by officers on all sides, he would reasonably believe that he is no longer free to leave and that he has been seized. See Brower v. Cnty. of Inyo, 489 U.S. 593, 599, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989) (holding that setting up roadblocks to stop fleeing suspects is a seizure). It is indisputable that Baude was seized when the Officers indiscriminately encircled all individuals in the area, including protestors, observers, business patrons, and residents simply walking by, and the Officers refused to allow anyone to leave voluntarily. See id.; see also Mendenhall, 446 U.S. at 554. Yet, in order for a seizure to be unconstitutional, the conduct must have been unreasonable.[iii]
Baude alleged that he was at all times peaceful and he was not present with the crowd when the dispersal order was given. He said that the police did not warn him prior to surrounding him and arresting him. Further, he alleged that the police refused to allow him to leave the group. The court of appeals noted that video evidence of the incident created a factual dispute between Baude’s allegations and the officers’ version of events. At this stage of the litigation, if there are factual disputes, summary judgment in favor of the officers is not allowed.
Regarding Baude’s arrest, the court of appeals noted the legal principles related to mass arrests and stated
A mass arrest may satisfy the Fourth Amendment‘s protections if the police have “grounds to believe all arrested persons were a part of the unit observed violating the law.” Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012) (citation omitted). This is so even if some innocent bystanders are mistakenly believed to be part of the unit. See id. at 1005 (determining it was objectively reasonable for officers to believe they could arrest all those suspected of being part of the unit while also noting the officers released approximately 200 people in an attempt to avoid custodial arrests of innocent bystanders). Where there is a unit, “the Fourth Amendment d[oes] not require a probable cause determination with respect to each individual in a large and potentially riotous group before making arrests.” Id. at 1003.[iv]
The officers argued that they had at least “arguable probable cause” to arrest Baude, as part of the group. Arguable probable cause exists when another reasonable officer in the same situation could believe that probable cause was present, even if it was later determined that actual probable cause did not exist.
The court of appeals noted that Baude’s allegations along with the accompanying video of the incident create a question of fact and the determination of the facts will impact whether or not the seizure was reasonable. For example, there were questions of fact regarding when the warnings were given and who heard the warnings. Additionally, until the kettle was initiated, there were people seen entering and exiting area, even after the dispersal orders were given. Further, there was not an attempt by the officers to separate the group of people that were actually involved in the earlier violence and property damage. The court of appeals then stated
The Officers’ assertion that they had probable cause or arguable probable cause to believe some members of the crowd violated laws earlier in the day and that “many” were apparently violating the law by refusing to disperse is insufficient to establish a “unit” that may justify a mass arrest as a matter of law. Police may be entitled to qualified immunity protections if they arrest individual offenders with at least arguable probable cause, see White v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017), but officers cannot enjoy such protections by alleging that “the unlawful acts of a small group” justify the arrest of the mass, Bernini, 665 F.3d at 1005.[v]
Thus, qualified immunity was not appropriate on the unlawful seizure claim.
2. Excessive Force
Baude alleged that the officers used excessive force when they sprayed him with pepper spray and zip tied his hands. The court examined the legal principles that apply and stated
Excessive force claims under the Fourth Amendment are governed by a reasonableness standard.” White, 865 F.3d at 1074 (citing Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). We evaluate the reasonableness of the force by balancing the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). This balancing of interests “requires careful attention to the facts and circumstances of each particular case, including the [1] severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted).[vi]
The court of appeals also noted that the right to be free from the type of excessive force that Baude alleged was clearly established in 2017. The court noted that, in Johnson v. Carroll[vii], they previously held that it was excessive force to pepper spray and throw and non-violent suspect to the ground when she was not fleeing or resisting arrest. Further, in Chambers v. Pennycook,[viii] they held that handcuffing may amount to excessive force if officers use more than de minimis force.
The court of appeals noted that the video of the incident show that Baude was compliant and in a “generally peaceful and compliant crowd” that was blocked in an intersection by police, pepper sprayed and forcefully arrested. The court noted that there are facts in dispute regarding whether Baude was really compliant and regarding the amount of force used, and as such, qualified immunity was not appropriate.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] 23 F. 4th 1065 (8th Cir. 2022)
[ii] Id. at 1069-1071
[iii] Id. at 1071-1072 (emphasis added)
[iv] Id. at 1072 (emphasis added)
[v] Id. at 1073 (emphasis added)
[vi] Id. (emphasis added)
[vii] 658 F.3d 819, 828 (8th Cir. 2011)
[viii] 641 F.3d 898, 907 (8th Cir. 2011)
