FIFTH CIRCUIT DISCUSSES USE OF FORCE
On October 31, 2025, the Eighth Circuit Court of Appeals decided Kampas v. City of St. Louis,[i] in which the court of appeals examined whether officers were entitled to qualified immunity for making mass arrests of protesters where some of the arrestees were not involved in the protest. The facts, taken directly from the case, are as follows:
In September 2017, a state court in the City of St. Louis acquitted former SLMPD Officer Jason Stockley of the murder of Anthony Lamar Smith. In response to the verdict, protests broke out across St. Louis and continued for several weeks. This case concerns one such protest that occurred on October 3, 2017. That evening, Officer Kegel was notified that a group of protesters were marching on Interstate 64 at Compton Avenue and were heading eastbound. SLMPD had intelligence detectives monitoring the protests, and these detectives informed Kegel that the protesters were blocking traffic—stretching from the far-left lane across the interstate highway to the shoulder area. The protesters walked eastbound until they reached the Jefferson Avenue off-ramp, where they exited the interstate highway.
The Plaintiffs attended the protest as “legal observers” to document police conduct and collect evidence for future litigation. Unlike the marching protesters, the Plaintiffs did not step foot onto Interstate 64, and no officer saw them on the interstate highway. The Plaintiffs lawfully stood in the grassy area at the base of the Jefferson Avenue off-ramp while the protesters blocked the interstate highway.
Before exiting the interstate highway, the protesters came upon the Plaintiffs at the base of the Jefferson Avenue off-ramp and surrounded them. The protesters lingered there for around a minute, and some of them walked around the grassy area where the Plaintiffs stood. Then, the protesters walked up the off-ramp to Jefferson Avenue; the Plaintiffs lawfully walked up the grassy area next to the off-ramp to Jefferson Avenue. At the top of the off-ramp, the protesters and the Plaintiffs turned left and headed northbound on Jefferson Avenue as a single group. While on Jefferson Avenue, video footage shows that Hoffmann, although at the end of the group, was surrounded by protesters walking in front of, behind, and beside him. Kampas is not seen on video after the group turned onto Jefferson Avenue.
SLMPD Chief O’Toole authorized Kegel to arrest individuals who had trespassed onto Interstate 64. Kegel waited for the protesters to exit the interstate highway before authorizing the Civil Disobedience Team to make arrests. To effectuate the arrests, SLMPD officers encircled the group and physically prevented anyone from leaving or entering the enclosed area. Kegel and Larson supervised the arrests within the encirclement. The Plaintiffs were part of the encircled group, and they told several officers they had not been on the interstate highway and asked to leave. Their requests were denied. No officers told Kegel that individuals within the encircled group claimed they had not been on the interstate highway.
Then, the Plaintiffs, along with several other arrestees, were transported to the St. Louis City Justice Center where officers processed them and completed the field booking forms. Officer Hawkins filled out the Plaintiffs’ forms and listed himself as the arresting officer. As Hawkins completed the forms, Hoffmann told him that he had not been on the interstate highway, did not attend the protest, and that the officers lacked probable cause to arrest him. None of the individuals arrested on October 3, 2017 were ultimately charged with a crime.[ii]
The Plaintiffs sued the officers for violating their rights under the First Amendment for retaliatory arrest and the Fourth Amendment for false arrest. The officers filed motions for qualified immunity and the district court granted their motions. The Plaintiffs appealed to the Eighth Circuit Court of Appeals.
The court of appeals first discussed qualified immunity. To overcome an officer’s motion for qualified immunity, a plaintiff must satisfy a two-pronged test. First, the plaintiff must show that the officer violated the plaintiff’s constitutional rights. Second, the plaintiff must show that the law was clearly established at the time of the violation such that every reasonable officer would have known he was violating the plaintiff’s rights. The law is “clearly established” when there is prior court precedent with similar enough facts to provide a reasonable officer notice that that conduct violates the constitution. The law can also be clearly established without court precedent in rare cases if the nature of the unlawfulness of the conduct would be obvious to a reasonable officer.
Fourth Amendment False Arrest Claim
A false arrest claim is one in which a plaintiff alleges the officers lacked probable cause or arguable probable cause to make the arrest. The court of appeals discussed the relevant legal principles and stated
A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.'” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011) (citation omitted). “[W]e have assigned consideration of actual probable cause to our constitutional violation prong analysis while reserving any consideration of arguable probable cause for our clearly established prong analysis.” Brown, 40 F.4th at 901.[iii]
The court of appeals then explained arguable probable cause. The court stated
An officer does not violate an “individual’s ‘clearly established’ rights for qualified immunity purposes if he nevertheless had arguable probable cause to make the arrest.” Brown, 40 F.4th at 901 (citation omitted). Arguable probable cause exists when officers “arrest a suspect under the mistaken belief that they have probable cause to do so, provided that the mistake is objectively reasonable.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008); see also Bell v. Neukirch, 979 F.3d 594, 608 (8th Cir. 2020) (“In other words, we must determine whether it was ‘objectively legally reasonable’ for an officer to conclude that the arrest was supported by probable cause.” (citation omitted)). In conducting this inquiry, we must examine cases that pre-date October 3, 2017. See Brosseau v. Haugen, 543 U.S. 194, 200 n.4, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004)[iv]
Simply put, arguable probable cause exists if another reasonable officer could have believed probable cause existed the officer is entitled to qualified immunity.
The court then examined the Eighth Circuit case, Bernini v. City of St. Paul, in which police made a mass arrest of protesters in 2008 at the Republican National Convention. In Bernini, approximately 100 people gathered at an intersection and “faced off with officers.” The officers directed the group to the west and the crowd grew to approximately 400 people. The officers surrounded the group and announced they were under arrest. The officers ultimately released 200 people and arrested about 160. Nine of those arrested sued the police for arresting them without probable cause (false arrest) because they were not present to the intersection (thus they did not violate the law).
The court of appeals, in Bernini, held that the arrest, which included the nine people that did not break the law, was “within the range of objectively reasonable police conduct.” The court
[A]cknowledged the “practical dilemma faced by officers responsible for reacting to large group activity and recognized that a ‘requirement that officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot.'” Id. at 1003 (citing Carr v. District of Columbia, 587 F.3d 401, 408, 388 U.S. App. D.C. 332 (D.C. Cir. 2009)). As such, the Court found “the Fourth Amendment ‘is satisfied if the officers have grounds to believe all arrested persons were a part of a unit observed violating the law.'” Id. (citing Carr, 587 F.3d at 407).[v]
The court of appeals then examined the facts of Kampas in light of the rules above. The court stated that “it was objectively reasonable for the officers to conclude the marching protesters acted as a unit.”[vi] The court observed that, as a group, the protesters (1) entered I-64 at Compton Avenue, (2) proceeded eastbound, (3) gathered at the base of the Jefferson Avenue off-ramp, (4) exited the interstate, and (5) moved northbound on Jefferson Avenue. All parties agree that the protesters who were on the interstate were lawfully arrested for trespassing.
Further, the court of appeals stated “it was objectively reasonable for the officers to believe that the Plaintiffs were part of the group of trespassing protesters.”[vii] The court observed that the protesters surrounded the Plaintiffs at the base of the Jefferson Avenue off-ramp. Then the entire group, which included the Plaintiffs, moved to Jefferson Avenue walking northbound. The court noted that the Plaintiffs made no effort to disassociate themselves from the group of protesters who had just been trespassing. Hoffman, a plaintiff, was seen walking with protesters on Jefferson Avenue and Kampas was seen at the base of the off-ramp with the protesters. Based on these facts, the court of appeals held that “it was objectively reasonable for the officers to believe that the Plaintiffs were part of the unit that engaged in unlawful activity.”[viii]
The court of appeals noted that in White v. Jackson, the Eighth Circuit found arguable probable cause to arrest plaintiffs where plaintiffs knew of unlawful conduct committed by a group of protesters and chose not to disassociate themselves from the group and disperse. This is similar to the facts of Kampas’ case.
The court also stated
Given the large number of people, requiring officers to make a probable cause determination as to each individual would have been “practically impossible.[ix]
Additionally, the court noted that the Plaintiffs were arrested immediately after the group left the interstate, rather than hours later; further, the officers did not see peripheral people join the group. This, said the court, further supported the reasonableness of the officers’ belief that the Plaintiffs were part of the unit.
The Plaintiffs raised three arguments in support of their allegation that there was no arguable probable cause to arrest them.
First, the Plaintiffs alleged that “a mere violation of law” is insufficient for a group to be deemed a unit for the purpose of a mass arrest. Rather, Plaintiffs asserted that the group must be “primed for confrontation.” The court of appeals disagreed, noting that the Plaintiffs are incorrectly interpreting Bernini in which a large unit of protesters were arrested for “rioting and unlawful assembly,” in which being “primed for confrontation” with masks was evidence in support of those crimes. However, in Kampas’ case, the officers only needed arguable probable cause the unit was committing trespassing, which does not require protesters be “primed for confrontation.”
Second, the Plaintiffs argued that their claims of innocence negated the officers’ arguable probable cause. Regarding this argument, the court stated
Although “we may not disregard exculpatory evidence when considering the totality of the circumstances to determine if arguable probable cause existed[,]” Nieters v. Holtan, 83 F.4th 1099, 1107 (8th Cir. 2023), there was no objective evidence brought to the officers’ attention here that undermined their arguable probable cause. Indeed, the only evidence to the contrary was the Plaintiffs’ protestations of their innocence. The Plaintiffs have failed to identify any cases holding that protesting one’s innocence is enough to negate probable cause. Cf. District of Columbia v. Wesby, 583 U.S. 48, 62, 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018) (finding that the officers had probable cause to arrest the respondents where the circumstances suggested criminal activity despite their “protestations of innocence“).[x]
Additionally, the court also noted that officers are not required to make individual determinations of probable cause during mass arrests; therefore, this makes it more unlikely that claims of innocence would undermine arguable probable cause.
Third, the Plaintiffs argued that the officers must conduct a “sorting process,” such as the one done in Bernini, before conducting a mass arrest. However, the court of appeals distinguished that case from Kampas’ case because, in Bernini, after the confrontation with police, the crowd grew from about 100 protesters to about 400 people, 300 of whom may have been uninvolved in the crime. Thus, a sorting process was appropriate. Whereas, in Kampas, there were no peripheral people seen joining the unit, thus a sorting process was not needed.
Therefore, the court of appeals held that the officers in Kampas had arguable probable cause to arrest the Plaintiffs as part of the trespassing unit of protesters. As such, they affirmed the district court’s grant of qualified immunity on the Fourth Amendment claim.
First Amendment Retaliatory Arrest Claim
The court of appeals next examined the law related to retaliatory arrest. To properly allege this claim, the Plaintiffs must show
(1) they “engaged in protected activity,” (2) the officers “took adverse action . . . that would chill a person of ordinary firmness from continuing in the [protected] activity,” (3) “the adverse action was motivated by the plaintiff’s protected activity,” and (4) “the officer(s) lacked probable cause or arguable probable cause.” Just v. City of St. Louis, 7 F.4th 761, 768 (8th Cir. 2021) (alteration in original) (citation omitted).[xi]
Since the court already determined the officers had arguable probable cause to arrest the Plaintiffs for trespassing, the Plaintiffs are unable to prove the fourth element of their claim. As such, the officers are entitled to qualified immunity on this claim.
Therefore, the court of appeals affirmed the district court’s grant of qualified immunity to the officers on the First Amendment claim.
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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[i]No. 24-2431 (8th Cir. October 31, 2025)
[ii] Id. at 2-5
[iii] Id. at 8 (emphasis added)
[iv] Id. at 9 (emphasis added)
[v] Id. at 10 (emphasis added)
[vi] Id.
[vii] Id. at 11
[viii] Id.
[ix] Id. at 12 (emphasis added)
[x] Id. at 14 (emphasis added)
[xi] Id. at 16 (emphasis added)
