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Faulk v. City of Saint Louis

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

October 31, 2019

CITY OF ST. LOUIS, MISSOURI, et al., Defendants.



         This matter is before the Court on the Motion to Dismiss Counts IV, VI, VII, VIII, IX and X of Plaintiff's Fourth Amended Complaint by Defendant Andrew Wismar, filed August 20, 2019. (ECF No. 81). The motion is fully briefed and ready for disposition.


         Taken as true for purposes of this motion, the facts alleged in the Fourth Amended Complaint are as follows. On September 15, 2017, the Circuit Court of the City of St. Louis issued its findings and verdict in State of Missouri v. Stockley, prompting some members of the public to engage in protests around the City. The protests concerned not only the verdict but broader issues, including racism in the criminal justice system and the use of force by police against African-American citizens. Although most of the protests were non-violent, St. Louis Metropolitan Police Department (“SLMPD”) officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields and carrying chemicals.” (Fourth Am ended Complaint (“Compl.”), ¶ 23).

         On September 17, 2017, Plaintiff Michael Faulk, an award-winning journalist, was reporting on the protests in downtown St. Louis. Plaintiff was using his bicycle t o travel around downtown. Around 8: 30 p.m., Plaintiff witnessed m asked individuals break a restaurant window. He also saw several other damaged windows.

         Just before 10:00 p.m., Plaintiff rode his bicycle back to the Post-Dispatch parking lot. He speculated on Twitter that perhaps the worst was over for the night. At some point thereafter, however, Plaintiff saw emergency lights flashing and officers approaching Tucker Boulevard between Olive and Washington. From Locust Street, Plaintiff tweeted “Bike cops blocking Locust and 11th #STLVerdict Spectators there and big group of people at St. Charles/Tucker.” (Compl., ¶ 137). The officers began to lift their bicycles and pound them on the ground in unison, while walking west toward Plaintiff and others. Without giving any dispersal orders or warnings that chemical agents would be used, the officers ordered people to move west on Locust or north on Tucker.

         Plaintiff heeded the officers' orders, and walked north on Tucker Boulevard to the intersection of Washington Avenue and Tucker. Suddenly, the riot police north of Plaintiff started to beat their batons on their shields in unison. Plaintiff sought some way to get out of the police kettle[1] that had formed, but officers ignored his questions and requests for help.

         Following the lead of others gathered in the intersection, Plaintiff placed his bike on the ground and got down on his hands and knees over the bike. SLMPD officers approached individuals in the group who were kneeling or lying down, shouting “Stop Resisting” and “Get Down!” to the citizens who were, quite visibly, trying to obey whatever SLMPD officers commanded. (Compl., ¶ 149).

         Approaching the group of kettled citizens on the ground, SLMPD officers began indiscriminately deploying pepper spray on the submissive crowd. Plaintiff felt the pepper spray land on his back and neck, causing immediate and acute stinging pain.

         Officer Willis of the SLMPD grabbed Plaintiff as he lay on the ground, attempting to pull him up by his collar. Plaintiff shouted several times, “Post-dispatch!”, and lifted his media credential ID card to show Willis. Willis let go of Plaintiff, who was now standing, but immediately thereafter, Plaintiff was pushed from behind by another officer. Plaintiff was shoved in the direction of several other SLMPD officers, who then used their riot shields to shove Plaintiff off the sidewalk and into the street. Several officers then grabbed Plaintiff from behind, using their full weight to tackle him to the ground, and one officer used his baton to try and strike Plaintiff in the genitals as several others jumped on top of him, seizing each of his limbs. Further, one officer used his weight to press Plaintiff's head into the street asphalt, and another sprayed him directly in the face with pepper spray.[2] Plaintiff maintains that at all times, he did not resist the officers in any way.

         As Plaintiff lay on the ground, another SLMPD officer very tightly tied his hands with plastic “zip-cuffs”. Defendant Andrew Wismar then arrested Plaintiff.[3] Plaintiff was taken to the St. Louis City Justice Center, where he was placed in a cell with approximately fifteen other men. Plaintiff attempted to continue his reporting, but when an officer learned he was a journalist, the officer removed Plaintiff and placed him in his own cell. Plaintiff eventually was again placed in an over-capacity cell with other protest arrestees. At no time was he given medical attention, despite requesting such on several occasions. Plaintiff remained detained for approximately thirteen hours.

         As noted above, Plaintiff claims he was not engaged in unlawful activity at any time during h i s encounter with police. Plaintiff further alleges that during and after the arrests, 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!” (C o m p l ., ¶ 90).

         Plaintiff filed the instant Fourth Amended Complaint on August 6, 2019, naming as Defendants the City of St . Louis, Missouri, and SLMPD officers as follows[4]: Lieutenant Colonel Gerald Leyshock; Lieutenant Scott Boyher; Lieutenant Timothy Sachs; Sergeant Randy Jemerson; Sergeant Matthew Karnowski; Sergeant Brian Rossomanno; and Officer Andrew Wismar.[5]

         As relevant here, Plaintiff asserts one claim for § 1983 conspiracy to deprive civil rights against all Defendants (Count IV). Plaintiff further asserts supplemental state-law claims, alleging assault and battery (against Defendants Wismar, Doe Police Officers 2-5, and the City of St. Louis), false arrest and false imprisonment (against all Defendants) (Count VII), intentional and negligent infliction of ...

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