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Burbridge v. City of ST. Louis

United States District Court, E.D. Missouri

December 20, 2019

DREW E. BURBRIDGE, et al., Plaintiff(s),
CITY OF ST. LOUIS, MISSOURI, et al., Defendant(s).



         This matter is before the Court on the Motion for Summary Judgment [89] of the City of St. Louis, Police Officers Marcus Biggins, Sgt. Brian Rossomanno, Samuel Rachas, and Keith Burton. Plaintiffs oppose the Motion. For the reasons set forth below, the Court grants the Motion in part and denies it in part.


         On September 15, 2017, the 22nd Judicial Circuit Court of the City of St. Louis issued a ruling in the criminal case against former St. Louis Police Officer Jason Stockley, finding him not guilty. In the days that followed, many people gathered in downtown St. Louis to protest the verdict.

         Plaintiffs Drew E. Burbridge and Jennifer L. Burbridge are documentary filmmakers who were present in downtown St. Louis on the evening of September 17, 2017 to video-document the Stockley protests. The Burbridges allege that officers of the St. Louis Metropolitan Police Department (SLMPD) violated their civil rights. The Burbriges initiated this action on September 26, 2017, and have filed their Third Amended Complaint. Doc. 70. The Burbridges bring claims under 42 U.S.C. § 1983 for deprivation of their civil rights, civil conspiracy to deprive them of their civil rights, and for failure to train or supervise. The Burbridges also bring state law claims for assault and battery, false imprisonment, and malicious prosecution.

         The Court finds the following facts uncontroverted for purposes of this Motion:[1]

         A. The Stockley Verdict and Ensuing Protests

         After the state trial court acquitted Jason Stockley on Friday, September 15, 2017, protests occurred in the City of St. Louis throughout the following weekend. Lt. Colonel Gerald Leyshock was the incident commander for the SLMPD's response to protest activity that weekend. Protests during daylight hours were largely peaceful, with little or no property damage, and only sporadic incidents of violence. However, in the evening hours of Friday night, September 15, protestors engaged in significant acts of property damage, including to the mayor's residence and to the Central West End area of the City. Further, there were multiple reports of officers injured by acts committed by protestors on Friday night. At that point, the SLMPD declared an unlawful assembly and ordered the crowd to disperse. On Saturday evening, September 16, the SLMPD again received reports of property destruction and police officers surrounded by protestors.

         B. September 17 Protests and SLMPD Response

         On Sunday afternoon, September 17, a large group of protestors engaged in a peaceful march, starting and concluding at Police Headquarters on Olive Street. Protests continued into Sunday evening. At approximately 9:00 p.m., Leyshock received a report that an officer had been injured and that several protestors possessed weapons. At approximately 10:40 p.m., Leyshock received reports that a group of protestors had gathered at the intersection of Tucker and Locust Street and was engaging with a unit of SLMPD's bicycle response team. Major Daniel Howard, who was on the scene with the bicycle response team, reported to Leyshock that individuals in the crowd at Locust and Tucker were being belligerent to police officers and throwing things at the officers. In response to these reports, Leyshock ordered Sgt. Rossomanno to declare an unlawful assembly and to issue dispersal warnings. Howard informed Leyshock that he did not believe he had enough officers to safely arrest the individuals who were engaging in an unlawful assembly. Leyshock then dispatched backup units from SLMPD's Civil Disobedience Teams to the downtown area to assist with making arrests.

         At approximately 10:45 p.m., Sgt. Rossomanno issued an order declaring the assembly to be unlawful and ordering those present to disperse.[2] Rossomanno's dispersal order included a warning that failure to disperse would be cause for arrest and that the use of chemical munitions was imminent. Rossomanno issued the dispersal order multiple times through the public address system of his police vehicle, and also attempted to issue the dispersal order conversationally to individual groups of people who had gathered on Tucker Street between Locust and Washington.

         C. Mass. Arrests at Washington and Tucker

         When Leyshock dispatched the Civil Disobedience Team units to the downtown area, he ordered them to arrest anyone that had not dispersed from the area once they arrived. When the Civil Disobedience Team units arrived downtown, the group on Tucker Street had mostly migrated from the intersection of Tucker and Locust to the intersection of Tucker and Washington. Leyshock then ordered the Civil Disobedience Team units to arrest all individuals who had not dispersed from Washington and Tucker. Sometime around midnight, multiple lines of police officers started gathering around the intersection of Washington and Tucker. Many of the officers were dressed in protective gear including helmets, shields, and batons. The officers fanned out along the crosswalks at the intersection, cutting off all routes of egress. Officers banged on their shields with their batons as they encircled the intersection. Officers ordered the crowd to move back and to sit on the ground. The officers then rushed forwarded and arrested the individuals who were caught in the intersection. In total, officers arrested more than 100 people. Several of the individuals in the group located at Washington and Tucker refused to follow otherwise lawful commands of the officers.

         D. Drew and Jennifer Burbridge

         Drew and Jennifer Burbridge arrived in the area of Washington and Tucker sometime after 11:00 p.m. on Sunday evening. Their purpose in downtown St. Louis that evening was to observe and document the civil unrest following the Stockley verdict. They brought with them a video camera. Upon their arrival, the Burbridges observed a crowd of approximately 100 protestors in the area of Washington and Tucker. Some were marching and demonstrating, and others were just standing around. As the Burbridges approached the demonstration, they walked past a number of police officers, none of whom told the Burbridges that they could not be in the area or that they had to leave. The Burbridges began videoing the activities of the protestors. Neither of the Burbridges heard any orders to disperse.

         The Burbridges were in the intersection of Washington and Tucker at approximately midnight when SLMPD officers began to encircle the intersection. When they realized the officers were cutting off all egress, the Burbridges approached the police line and, orally identified themselves as members of the media, attempted to leave the area. Unidentified officers in the police line told the Burbridges they could not leave. The Burbridges then complied with police orders to move back and sit on the ground.

         E. Arrest of Drew Burbridge

         Defendant SLMPD Officers Samuel Rachas and Keith Burton arrived at the intersection of Washington and Tucker in response to a request from dispatch to respond downtown. A superior officer ordered Rachas and Burton to place zip-tie restraints on the group of people in the Washington and Tucker intersection who were being placed under arrest.

         While Drew[3] was sitting with Jennifer on the sidewalk, inside the police encirclement, he heard an unidentified officer say, “That's him.” Then Officers Rachas and Burton grabbed Drew and dragged him away from Jennifer by his arms. Without standing Drew up, and before placing him in restraints, Rachas and Burton began to place Drew on the ground, face down, so that they could place restraints on his hands behind his back. At no time from when Rachas and Burton grabbed him to when he was put prone on the ground did Drew resist the police. Drew told Rachas and Burton that he was not a protestor, was not resisting, and was a member of the media.

         Defendant Officer Marcus Biggins observed Rachas and Burton bring Drew to the ground. Biggins testified during his deposition that Drew was “not fighting” the officers, but was “fighting being arrested” and “squirming.” Biggins knelt down on Drew's legs while Rachas and Burton effected the arrest. Drew had a knee placed on his neck, and was repeatedly struck by officers. He was kicked with a boot, struck on the back of the head, struck on the ribs, and struck on his shoulder. At some point, he lost consciousness.[4] Jennifer witnessed Drew being maced, stomped on, and struck by officers. While Drew was on the ground with Rachas and Burton on top of him, Defendant Sgt. Rossomanno twice deployed mace in Drew's face.

         Both parties have submitted video evidence of the arrest of Drew Burbridge.[5] Although the view of Drew's arrest and his interaction with the officers is frequently obstructed, some facts are plainly observable in the video. When Officers Rachas and Burton put Drew Burbridge on the ground, Drew was not yet in wrist restraints. Doc. 100-3, at 00:12. Drew's arrest, measured from when Officers Burton and Rachas pulled him from the crowd to when Burton and Rachas finished restraining his hands with zip-ties and moved on, lasted approximately 30 seconds. Id. at 00:10-00:42. The entire interaction between Drew and the officers, from the time Officers Burton and Rachas pulled Drew from the crowd to when Officer Biggins escorted him from the scene, lasted little more than a minute. Id. at 00:10-01:33.

         After being taken into custody, Drew was charged with “failure to disperse” and booked at the St. Louis City Justice Center. Drew was not charged with resisting arrest. The Burbridges have offered evidence that SLMPD instructed all officers who used force in the course of arrests that evening to self-report their use of force. Doc. 100-25, 71:3-20. None of the Defendant police officers completed a “use of force” report regarding the arrest of Drew Burbridge.

         F. Arrest of Jennifer Burbridge

         When the police lines converged on the crowd at Washington and Tucker, Jennifer Burbridge was kneeling with Drew on the sidewalk. Jennifer testified that an SLMPD officer sprayed pepper spray at another individual in the intersection while Jennifer and Drew were on the sidewalk in close proximity. The blast of pepper spray streamed over Jennifer's head where she was kneeling and came down to irritate her eyes and throat.

         Drew was holding Jennifer in his arms when he was grabbed and pulled away from her by Officers Burton and Rachas. An unidentified officer then lifted Jennifer by her armpits from her crouched position. Unidentified officers restrained Jennifer with zip-tie restraints and escorted her away from the scene. One of the officers transporting Jennifer remarked to another officer “Look who I have”, while another said “Did you like that? Come back tomorrow and we'll do it again”, and yet another asked “What did you think would happen?” After being taken into custody, Jennifer was charged with “failure to disperse” and booked at the St. Louis City Justice Center. Prior to her release from jail, Jennifer was required to undergo a pregnancy test, which she was forced to conduct in a cell with other female detainees. The detainees were told that everyone would have to take a pregnancy test prior to release, or no one would be released. While Jennifer was taking the pregnancy test, a male corrections officer opened the cell door and looked in.

         II. STANDARD

         Defendants argue that the uncontroverted record entitles them to summary judgment on all all of the Burbridges' claims. Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006) (quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005)). The proponent of a motion for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.

         In response to the proponent's showing, the opponent must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A “genuine” dispute of material fact is more than “some metaphysical doubt as to the material facts.” Id. at 586. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable...or is not significantly probative...summary judgment may be granted.” Id. at 249-50 (citations omitted).


         The Burbridges' eleven-count Complaint asserts claims against the City of St. Louis, Sgt. Rossomanno, Officers Burton, Rachas, and Biggins, and an unidentified “John Doe” police officer. Doc. 70. The Complaint names the police-officer Defendants in both their individual and official capacities.[6] In Counts I and II, brought pursuant to 42 U.S.C. § 1983, the Burbridges allege that Defendants violated their First Amendment rights and retaliated against them for exercising their First Amendment rights. In Count III, also brought pursuant to 42 U.S.C. § 1983, the Burbridges allege that Defendants violated their Fourth Amendment rights through the use of excessive force and unlawful search and seizure. In Count IV, the Burbridges assert a Fourteenth Amendment due process claim pursuant to 42 U.S.C. § 1983 and allege that St. Louis City ordinances regarding unlawful assembly and obstruction of traffic are unconstitutional facially and as applied. The Burbridges assert Counts I through IV against all Defendants. In Counts V through VIII, Jennifer and Drew separately bring Missouri state law claims for assault and battery (Counts V, VI) and false imprisonment (Counts VII, VIII) against the police-officer Defendants. The Burbridges bring Count IX pursuant to 42 U.S.C. § 1983 against the City of St Louis only, alleging that the City's failure to train its police officers resulted in violations of the Burbridges' constitutional rights. In Count X, the Burbridges allege that the police-officer Defendants violated Missouri state law forbidding malicious false prosecution. Finally, the Burbridges bring Count XI against the police-officer Defendants pursuant to 42 U.S.C. § 1983, alleging that Defendants conspired to deprive them of their civil rights.

         Defendants move for summary judgment on all Counts of the Burbridges' Complaint. Doc. 89. Defendants argue that the police-officer Defendants are entitled to qualified immunity from all of the Burbridges' federal law claims and to official immunity from the Burbridges' state law claims. As to the claims asserted against the City, Defendants argue that the ordinances are constitutional both facially and as applied, and that the Burbridges have failed to offer proof of failure to train.

         As a preliminary matter, the Court dismisses all claims asserted in the Burbridges' Complaint against the unidentified “John Doe” defendant. Discovery closed in this matter on June 3, 2019, and the case is set for trial on January 21, 2020. Doc. 84. “Fictitious parties must eventually be dismissed, if discovery yields no identities.” Kemper Ins. Companies, Inc. v. Fed. Exp. Corp., 115 F.Supp.2d 116, 125 (D. Mass. 2000); see also Johnson v. Charps Welding & Fabricating, Inc., No. CV 14-2081 (PAM/LIB), 2018 WL 3978111, at *3 (D. Minn. Aug. 20, 2018) (“[S]ummary judgment is not a dress rehearsal or practice run; it is the put up or shut up [sic] moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.”) (quoting Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007). Accordingly, the Court dismisses without prejudice the Burbridges' claims against the unidentified defendant.

         A. Qualified Immunity

         The Court first considers the qualified immunity claim of the Defendant police officers. Section 1983 of Title 42 allows individuals to bring causes of action for violations of the U.S. Constitution. The section in relevant part states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983. “Qualified immunity shields a government official from suit under § 1983 if his ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant invokes a claim of qualified immunity, the burden falls on the plaintiff to show: “(1) the facts, viewed in the light most favorable to the plaintiff[], demonstrate the deprivation of a constitutional right; and (2) the right was clearly established at the time of the deprivation.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014) (quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010)). Thus, to determine whether a defendant is qualifiedly immune, the Court considers whether the alleged facts demonstrate that his conduct violated a constitutional right and, if so, whether the right claimed was clearly established at the time of the alleged injury. Howard v. Kan. City Police Dep't, 570 F.3d 984, 988 (8th Cir. 2009). “If the answer to either question is no, ” then the defendant is qualifiedly immune. Doe v. Flaherty, 623 F.3d 577, 583 (8th Cir. 2010).

         Defendants argue the Defendant officers are qualifiedly immune from all of the Burbridges' federal § 1983 claims, including the First Amendment retaliation claims (Counts I and II), the Fourth Amendment excessive force and unlawful search and seizure claims (Count III), and the civil conspiracy claim (Count XI). Doc. 93.

         1. Unlawful Search and Seizure

         The Burbridges allege that their arrests on September 17, 2017 were unlawful seizures in violation of the Fourth Amendment to the U.S. Constitution. Doc. 70, ¶¶ 107-108. In relevant part, the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….

         U.S. Const. amend. IV. “A warrantless arrest does not violate ‘the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.'” White v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017) (quoting Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011). The Court finds that the Defendant officers are qualifiedly immune from the ...

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