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Baude v. City of Saint Louis

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

September 30, 2019

BRIAN BAUDE Plaintiff,
CITY OF ST. LOUIS, et al., Defendants.



         This matter is before me on defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 8 and Fed.R.Civ.P. 12(b)(6). Plaintiff Brian Baude brings a series of claims under 42 U.S.C. §1983 alleging violations of his First and Fourth Amendment rights, as well as supplemental state law claims, against several St. Louis Metropolitan Police Department (“SLMPD”) Officers and the City of St. Louis (the “City) for their actions during the protests following the September 15, 2017, verdict in State of Missouri v. Stockley.[1] Baude claims that he was illegally “kettled, ”[2] sprayed with pepper spray without warning, and arrested while observing and documenting the protest on September 17, 2017. This is one of several cases arising out of the protest activity following the Stockley verdict.[3]


         Plaintiff Baude filed this action on September 17, 2018 and filed his first amended complaint on January 9, 2019. On February 15, 2019, he filed his second amended complaint asserting the following claims under 42 U.S.C. §1983: that the individual defendants violated Baude’s First and Fourteenth Amendment rights to freedom of speech and assembly (Count 2), that the individual defendants violated his Fourth and Fourteenth Amendment rights to freedom from unreasonable seizure (Count 1) and freedom from excessive use of force (Count 12), that the city and the individual defendants conspired to deprive him of his civil rights (Count 3), and that the City is liable under Monell[4] because the violations of his civil rights were caused by a policy, practice or custom of the City and by its failure to train, discipline or supervise its police officers (Count 4). Baude also brings a number of supplemental state law claims for false arrest, false imprisonment, abuse of process, malicious prosecution, intentional infliction of emotional distress, or alternatively negligent infliction of emotional distress, and battery (Counts 5-11 and 13). As relief Baude seeks compensatory damages, punitive damages, attorneys’ fees, expenses, and costs on his §1983 claims, and punitive damages on his state law claims.

         The defendants filed a motion to dismiss the original complaint on December 19, 2018. They then moved to dismiss the second amended complaint in its entirety under Fed.R.Civ.P. 8(a) and the plaintiff’s §1983 claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6). As to the state law claims, the defendants move to dismiss them under Fed.R.Civ.P. 12(b)(6) arguing the City is entitled to sovereign immunity and the individual defendants’ are entitled to official immunity under Missouri tort law. Alternatively, the defendants move to strike certain paragraphs of the amended complaint under Fed.R.Civ.P. 12(f).


         The Circuit Court of the City of St. Louis issued its findings and verdict in Stockley on September 15, 2017, prompting protests in the St. Louis metropolitan area. The protests lasted throughout the weekend of September 15, 2017 and into the following week. Although the Stockley verdict prompted the protests, they addressed broader issues, including racism and the use of force by local police and law enforcement. Based on the complaint and construed in the light most favorable to the plaintiff, the following events occurred.

         On the night of September 17, 2017, Baude was at his home in downtown St. Louis when he learned about protesters allegedly destroying property nearby. Based on this information, Baude decided to act as a neutral observer, documenting protest related activity. He left his home around 9:30 pm, which unbeknownst to Baude was approximately forty minutes after the SLMPD declared the gathering unlawful and issued its initial dispersal order in response to the property damage caused by some of the protesters.

         While walking in the downtown area, Baude saw a few broken flower pots and other property damage near the St. Louis Public Library. He also saw a group of police officers on bicycles who were in what appeared to be a staging area nearby. Baude made his way to the intersection of Tucker Boulevard and Locust, where he saw a line of police officers east of the intersection on Locust. Shortly after he arrived at the intersection, SLMPD gave an order instructing everyone gathered at the intersection to leave by walking north on Tucker. Baude followed these instructions and proceeded up Tucker to Washington. From the intersection of Tucker and Washington, Baude observed that the line of police from Locust had advanced north on Tucker behind the dispersing crowd, taking up a position at Tucker and St. Charles Street.

         Approximately forty-five minutes elapsed after the SLMPD ordered the crowd to leave the Locust and Tucker intersection, when Baude notice lines of police officers blocking Washington Avenue to the east and west. During that time a number of individuals from shops, restaurants, and residential buildings on Washington Avenue joined the crowd. No. dispersal order or other instruction was given by the SLMPD during this time. At this point the lines of police officers began to converge on the crowd, confining them to the intersection of Washington and Tucker. The plaintiff refers to this tactic as “kettling.”

         When Baude noticed the lines of officers blocking the crowd, he approached an officer and asked where he should go. The officer told him it was too late to leave. Baude then approached another officer to ask if there was any way he could be helpful. The officer grabbed him by the lapels and pushed him back into the intersection. Then without warning Baude was sprayed on the back and right side of his head with pepper spray. Other officers also indiscriminately sprayed compliant and peaceful citizens in the intersection. Baude believes the officers were targeting individuals recording the events. The SLMPD then arrested Baude, zip-tied his hands, and lined him up with others against a building on Tucker. Baude was taken to the City Justice Center, where he was subject to a search and held for fourteen hours in an overcrowded cell. Baude was given a court date, which was later cancelled. Since then he has received no further information about any outstanding charges against him.

         Baude claims that the events of September 17, 2017, had a chilling effect on his expressive activity and that he no longer records incidents involving police and protestors. Baude also claims he suffered anxiety because he feared he may lose his job and felt a profound sense of injustice. Additionally, as an officer in the Air National Guard, Baude had to report the incident immediately to his supervisors and during his security clearance renewal process.

         In addition to the factual allegations regarding the protests on the night of September 17, 2017, the complaint also details other allegations of SLMPD’s use of chemical agents against protestors without warning, use of excessive force, and the history of litigation against the City for these types of incidents.


         The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. When considering a Rule 12(b)(6) motion, I must assume the factual allegations of the complaint to be true and construe them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). I am not, however, bound to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corporation v. Twombly, 555 U.S. 544, 555 (2007).

         To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.C. 662, 667, 129 S.Ct. 1937, 1949 (quoting Twombly, 555 U.S. at 570). Although “specific facts are not necessary, ” the plaintiff must allege facts sufficient to “give fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         A plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted case omitted). This standard “simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim or element].” Id. at 556. The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim.” Bell Atlantic Corp., 550 U.S. at 556.


         A. Motion to Dismiss under Rule 8(a)

         Defendants move to dismiss the plaintiff’s complaint for failure to comply with Fed.R.Civ.P. 8 because “it is replete with tendentious, inflammatory, and immaterial allegations attacking the integrity of Missouri courts, injecting issues to which defendants cannot possibly frame a response, and including voluminous exhibit and references to other litigation…” [ECF No. 37 at 2]. In particular, the defendants challenge the plaintiff’s inclusion of information about State v. Stockley and details of the City’s past litigation regarding the SLMPD’s use of chemical agents and force against protestors. Alternatively, the defendants move to strike these paragraphs under Fed.R.Civ.P. 12(f) as immaterial or impertinent.

         Under Rule 8(a), a pleading that states a claim for relief must include a “short and plain statement of the claim, ” showing the pleader is entitled to relief. Under Twombly and Iqbal, the plaintiff must show plausibility, not mere possibility. Therefore, complaints now “tend to include more factual detail and be longer than before. Aldridge v. City of St. Louis, MO, No. 4:18-CV-1677 CAS, 2019 WL 1695982, at *4 (ED. Mo. Apr. 17, 2019). In this case, Baude’s second amended complaint uses numbered paragraphs, separately identifies the defendants, makes specific factual allegations against them, and sets forth separate counts that identify each claim and the defendant(s) against whom it is asserted. Thus, the Complaint is not so disorganized, vague, or ambiguous as to be unintelligible. See Cf. Michaelis v. Nebraska State Bar Ass’n, 717 F.2d 437, 439 (8th Cir. 1983) (affirming dismissal of a 98-page pro se complaint, the “style and prolixity” of which “would have made an orderly trial impossible.”); Smith v. Republic Servs., Inc., 2017 WL 4038143, at *3 (E.D. Mo. Sept. 13, 2017) (dismissing complaint under Rule 12(b)(6), ...

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