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 II of this article will cover Supervisor Liability and Subordinate Officer Liability. Part I covered 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 cover Baude’s third and fourth claims.
3. Supervisory Liability
The court of appeals examined whether the supervisory officers were entitled to qualified immunity since they did not personally participate in a any use of force against Baude. Further, the officers argued that, regarding any use of force they witnessed, they either had no time to intervene or it was reasonable for them to believe the officers were using reasonable force. The court of appeals discussed the legal principles relevant to this issue and stated
Even though an officer has no liability under the doctrines of respondeat superior or supervisor liability, see Wagner v. Jones, 664 F.3d 259, 275 (8th Cir. 2011), at the time of this mass arrest, it was “clearly established that an officer who fails to intervene to prevent the unconstitutional use of excessive force by another officer may be held liable for violating the Fourth Amendment,” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009). Supervisory officers who act with “deliberate indifference toward the violation,” Wagner, 664 F.3d at 275 (quoting Ottman v. City of Independence, 341 F.3d 751, 761 (8th Cir. 2003)), or, in other words, are aware that their subordinates’ actions create a “substantial risk of serious harm,” may be liable if they fail to intervene to mitigate the risk of harm, id. (quoting Kahle v. Leonard, 477 F.3d 544, 551-52 (8th Cir. 2007)) (internal quotation marks omitted).[iii]
Baude alleged that the supervisory officers observed or intended the use of excessive force and failed to intervene to stop the excessive force when it occurred. Baude also alleged that the supervisory officers issued orders to their subordinates to use excessive force against an allegedly peaceful crowd. Speciffically, Baude alleged that the supervisory officers coordinated the actions of the subordinate officers in the use of the kettle and the use of chemical agents, thereby establishing that the supervisory officers planned and sanctioned the conduct of the subordinate officers.
The court of appeals noted that the supervisory and subordinate officers dispute the facts alleged by Baude. However, at this stage of the litigation, the court of appeals is required to credit the facts as presented by the plaintiff (Baude) unless there is clear evidence, such as video, to the contrary. The video of the incident also shows that the facts are in dispute. As such, qualified immunity is not appropriate at this time.
4. Subordinate Officer Liability
Baude alleged that the subordinate officers relayed information about the crowd to Lieutenant Colonel Layshock and another lieutenant. He argued that this created an inference that the subordinate officers were involved in developing the arrest plan and orders, rather than merely following orders. Baude also alleged that Officer Bockskopf personally arrested him without probable cause to do so. The court examined the legal principles that apply and stated
Subordinate police officers cannot escape liability when they blindly follow orders. Rather, their conduct while following orders must be reasonable. We have held that an assisting officer may rely on the probable cause determination and follow the directions of an officer who is directing the arrest “as long as the reliance is reasonable.” Ehlers v. City of Rapid City, 846 F.3d 1002, 1010 (8th Cir. 2017) (citing Doran v. Eckold, 409 F.3d 958, 965 [*1075] (8th Cir. 2005) (en banc)). ).[iv]
Baude made factual allegations regarding his conduct and the conduct of the crowd that, if true, would undermine Officer Bockskopf’s alleged “reasonable reliance” on his supervisory officers’ orders to arrest the people in the kettle. The court of appeals cannot resolve these factual disputes, therefore, qualified immunity is not appropriate.
As such, the court of appeals affirmed the denial of qualified immunity on both the supervisory and subordinate officers.
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 1074 (emphasis added)
[iv] Id. (emphasis added)
