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Davis v. City of Saint Louis

United States District Court, E.D. Missouri, Eastern Division

July 23, 2019

EMILY DAVIS, Plaintiff,
CITY OF SAINT LOUIS, MISSOURI, et al., Defendants,



         This matter is before the Court on Defendants City of St. Louis, Gerald Leyshock, Timothy Sachs, Scott Boyher, Randy Jemerson, Matthew Karnowski, and Brian Rossomanno's Motion to Dismiss and Alternative Motion to Strike, [Doc. No. 29]. Plaintiff opposes the Motion, which has been fully briefed. For the reasons set forth below, the Motion to Dismiss is denied in part and granted in part. The Motion to Strike is denied.

         Facts and Background[1]

         This is one of several cases filed in this District arising out of the actions of St. Louis Metropolitan Police Department (“SLMPD”) officers during peaceful protests following the September 15, 2017 verdict in State of Missouri v. Stockley. See Newbold v. City of St. Louis, Mo., No. 4:18-CV-1572 HEA, 2019 WL 3220405 (E.D. Mo. July 16, 2019); Aldridge v. City of St. Louis, Mo., No. 4:18-CV-1677 CAS, 2019 WL 1695982 (E.D. Mo. Apr. 17, 2019); Laney v. City of St. Louis, Mo., No. 4:18-CV-1575 CDP, 2019 WL 2423308, (E.D. Mo. June 10, 2019); Laird v. City of St. Louis, Mo., No. 4:18-CV-1567 AGF, 2019 WL 2647273 (E.D. Mo. June 27, 2019); Alston v. City of St. Louis, Mo., No. 4:18-CV-1569 AGF, 2019 WL 2869896 (E.D. Mo. July 3, 2019); Thomas v. City of St. Louis, Mo., No. 4:18-CV-1566 JAR, 2019 WL 3037200 (E.D. Mo. July 11, 2019). The first Amended Complaint (“FAC”) contains the following allegations:

         September 15, 2017

         On September 15, 2017, the Circuit Court of the City of St. Louis, Hon. Timothy Wilson, presiding, issued its findings and verdict in State of Missouri v. Stockley acquitting former SLMPD officer Jason Stockley of first-degree murder of Anthony Lamar Smith. The verdict prompted some members of the St. Louis community to engage in protests in St. Louis and the surrounding communities. The protests concerned not only the verdict but broader issues, including racism and the use of force by police officers. Although most of the protests were nonviolent, SLMPD officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields” and carrying chemical agents.

         Plaintiff Emily Davis (“Davis”) is a St. Louis County resident. On September 15, 2017, Davis went to St. Louis city's Central West End neighborhood to attend a clergy-led gathering in protest of Jason Stockley's acquittal. As Davis approached the intersection of Waterman and Washington, [2] a line of police officers walked into the intersection. Defendant Sergeant Brian Rossomanno (“Rossomanno”) was shouting at protestors to leave. As she turned to leave, Davis saw a police officer yank a man's bicycle out from under him, knocking the man down. Davis reached over to try to help the man off the ground. Rossomanno approached Davis from behind, called her by name, and yelled at her to leave the area. Instantly and without warning, Rossomanno sprayed Davis's posterior at close range, and yelled that Davis has two seconds to get out of the area. Without verbal warning or other notice, Rossomanno moved closer to Davis, reached his arm around her front, and sprayed her face and hair. The spray made it difficult for Davis to see, and she was led away to safety by her friend.

         Davis heard no orders to disperse prior to getting sprayed. At no time was she breaking the law; Rossomanno made no attempt to arrest her.[3] Davis alleges that an unbiased observer would not have believed that Rosssomanno was in danger when he sprayed Davis.

         September 17, 2017

         On September 17, 2017, Davis attended a march in downtown St. Louis. After 9:00 p.m., most activity downtown had ceased. Davis and a friend were returning to Davis' car when police officers blocking Locust Street ordered the ten or fewer civilians in the area to disperse, directing them to head either north or west. Davis and the others tried to exit west on Locust toward Tucker but were met by a line of police vehicles blocking Tucker south of the intersection. Lines of SLMPD officer then advanced from the north and south. Davis heard no dispersal orders or commands. All means of egress were blocked by lines of SLMPD officers. One line of officers began shouting that everyone was being arrested. Davis sat down. The officers yelled at the civilians to “get down.”

         As Davis sent a phone message to friends that she was being arrested, an SLMPD officer approached, took Davis' phone, and threw it to the ground. A second SLMPD officer ripped the goggles off Davis' face and pointed a spray can at her face while yelling. Davis could not hear the SLMPD officer because the officer's full gas mask covered his face. Davis tried to explain to the officer that she could not understand his commands. The officer continued pointing the spray can at Davis face. Davis turned over to face the ground with her arms spread. A different officer handcuffed Davis “roughly and tightly.” Davis saw a compliant friend being sprayed repeatedly in the face with pepper spray, and overheard officers joking that her friend was so covered in pepper spray that they did not want to handle him. Davis was taken to a van, photographed, identified and documented. Her arrest record lists Rossomanno as the arresting officer.

         The FAC also contains allegations that none of the individuals inside the crowd of protestors on September 17, 2017 were acting violently and aggressively, yet they were kicked, beaten, dragged, and sprayed with chemical agents. Further, during and after the arrests of protestors, SLMPD officers were observed high fiving each other, smoking celebratory cigars, taking “selfies” on their cell phones with arrestees against the arrestees' will, and chanting “Whose Streets? Our Streets!”

         In addition to the Defendant City of St. Louis, Missouri (the “City”), the FAC names several SLMPD officers as defendants, including six supervisory officers (collectively, “Supervisory Defendants”) including the arresting officer, and five “John Doe” SLMPD officers. Lieutenant Colonel Gerald Leyshock was the incident commander during the events of September 17, 2017. Leyshock allegedly approved the plan to prevent civilians from leaving the vicinity of Washington Avenue and Tucker Boulevard and to arrest everyone present. Lieutenant Timothy Sachs allegedly developed the plan described above, deployed the tactical units accordingly, and ordered the use of chemical agents. Lieutenant Scott Boyher allegedly directed officers under his command to block protestors in and directed the officers to use force against, and to arrest, protestors. Sergeant Matthew Karnowski allegedly declared the protests an “unlawful assembly, ” which SLMPD used as a predicate to the arrests and use of the chemical agents. Karnowski also directed the officers under his command to use force against and to arrest protestors. Sergeant Randy Jemerson is a supervisor with the SLMPD's Civil Disobedience Team and directed people to the intersection of Washington and Tucker pursuant to the plan described above. Sergeant Brian Rossomanno also allegedly directed people to the intersection, and was “within arms-length” of the officers who pepper sprayed and used force against protestors. Rossomanno also pepper sprayed Davis without warning on September 15, 2017, and arrested Davis without probable cause on September 17, 2017. The City and these Supervisory Defendants brought the instant Motion to Dismiss. Also named as defendants, but not party to this motion, are John Does #1-5, who are unidentified SLMPD officers. The Doe defendants allegedly arrested, used chemical munitions against, beat, and prevented the movement of Davis. Davis cannot identify the Doe officers because they removed their names tags and wore masks.

         Davis asserts 13 counts. Claims made against the individual defendant officers and pursuant to § 1983 include: Fourth Amendment unlawful seizure (Count I), violation of the First Amendment rights to speech and assembly (Count II), and Fourth Amendment excessive force (Count XII). Count IV asserts § 1983 claims against the City alleging municipal liability for the officers' unlawful actions. Count III alleges a conspiracy between all Defendants to deprive Davis' civil rights. Finally, Plaintiff asserts supplemental state-law claims against all Defendants alleging assault (Count V), false arrest (Count VI), false imprisonment (Count VII), ...

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