United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
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
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, 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.
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,  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
heard no orders to disperse prior to getting sprayed. At no
time was she breaking the law; Rossomanno made no attempt to
arrest her. Davis alleges that an unbiased observer
would not have believed that Rosssomanno was in danger when
he sprayed Davis.
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
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
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!”
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.
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), ...