United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRICT JUDGE
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
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).
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.
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.
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 that had formed,
but officers ignored his questions and requests for help.
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).
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.
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. Plaintiff
maintains that at all times, he did not resist the officers
in any way.
Plaintiff lay on the ground, another SLMPD officer very
tightly tied his hands with plastic “zip-cuffs”.
Defendant Andrew Wismar then arrested
Plaintiff. 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.
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).
filed the instant Fourth Amended Complaint on August 6, 2019,
naming as Defendants the City of St . Louis, Missouri, and
SLMPD officers as follows: Lieutenant Colonel Gerald Leyshock;
Lieutenant Scott Boyher; Lieutenant Timothy Sachs; Sergeant
Randy Jemerson; Sergeant Matthew Karnowski; Sergeant Brian
Rossomanno; and Officer Andrew Wismar.
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