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Aldridge v. City of St Louis

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

January 15, 2020

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



         This matter is before the Court on defendant William Olsten's motion to stay proceedings and the parties' joint motion to stay alternative dispute resolution referral. Plaintiff opposes defendant Olsten's motion to stay proceedings and it is fully briefed as Olsten did not file a reply in support of his motion and the time to do so has passed. The Court will grant in part and deny in part the motion to stay proceedings, and will deny as moot the joint motion to stay referral to alternative dispute resolution.

         I. Background

         The Second Amended Complaint (“complaint”) alleges that plaintiff took part in a peaceful public protest against police violence on September 29, 2017. The protest occurred on the streets of downtown St. Louis, including near Busch Stadium, beginning at approximately 7:00 p.m. The complaint alleges that at around 9:00 p.m., protestors who had been marching elsewhere in downtown St. Louis began making their way south on Broadway towards Busch Stadium and the intersection of Broadway and Walnut Street. The complaint alleges that when the protestors reached the intersection of Broadway and Walnut, St. Louis Metropolitan Police Department (“SLMPD”) officers “began indiscriminately using pepper spray on civilians without provocation of violence or criminal behavior.” Video evidence shows the protestors were acting peacefully and calmly. (Doc. 37, ¶¶ 45-46.)

         The complaint alleges that without warning, a SLMPD officer violently threw one protestor to the ground breaking his glasses, and the protestors then began to loudly voice their disapproval of the force used. Many people in the area, including protestors, loudly questioned why the police decided to use violence. The complaint alleges that two SLMPD officers began to chase another protestor, Calvin Kennedy, and tasered him without warning after an officer grabbed Mr. Kennedy. The protestors then began demanding why the SLMPD had deployed a Taser.

         The complaint alleges that video shows defendant Olsten, a SLMPD officer, yelled at a protestor, “Come and fuck me up then, ” and moved toward the protestors, while two other SLMPD officers tried to grab Olsten, calm him down, and move him away from the crowd. The complaint alleges the video shows defendant Hayden, at the time a SLMPD major, standing approximately five feet to the right of Olsten. The complaint alleges that although Olsten was not in danger or trying to extricate himself from a dangerous situation, he became more agitated as evidenced by his “very pronouncedly chomp[ing] on his gum and begin[ing] to flex his muscles.” (Doc. 37, ¶¶ 55-58.) Then, Olsten pulled out and fired a “large fogger like canister of pepper spray” without first giving any dispersal order or warning, and the spray hit plaintiff and three other citizens. (Id., ¶¶ 59-61.)

         The complaint alleges that plaintiff began to feel excruciating pain from the pepper spray, his eyes began to burn, mucus ran from his nose, and his breathing became labored. The complaint alleges defendant Olsten made no attempt to effectuate any arrests after spraying plaintiff and others with the pepper spray and instead walked away. The complaint alleges that during the incident, defendant Hayden was in the middle of the SLMPD officers wearing a white shirt, indicating he was a supervisor. The complaint alleges, “Hayden took no steps to prevent his officers from inflicting punishment on peaceful protestors and members of the media, ” and “is observed in the video using a cell phone to record the activities and the police response.” (Doc. 37, ¶ 67.)

         Plaintiff filed this action on October 2, 2018. The complaint asserts federal claims under 42 U.S.C. § 1983: Violation of plaintiff's First and Fourteenth Amendment rights to assembly, association, free speech, and a free press against defendants Olsten and Hayden (Count I); a Monell claim against the City of St. Louis, Missouri (“City”) claiming the violations of plaintiff's civil rights were caused by specified policies, practices, or customs of the SLMPD, and by its failure to train and supervise SLMPD officers with respect to use of force (Count II);[1] a Fourth and Fourteenth Amendment excessive force claim against defendant Olsten (Count VI); and a Fourth and Fourteenth Amendment failure to intervene claim against defendant Hayden (Count VII). The complaint also asserts supplemental state law claims against all of the defendants: assault (Count III); intentional infliction of emotional distress (Count IV); negligent infliction of emotional distress (Count V); and battery (Count VIII).

         Defendant Olsten was originally represented in this case by the St. Louis City Counselor's Office. On July 16, 2019, a criminal complaint was filed against Olsten in the Twenty Second Judicial Circuit for the State of Missouri charging him with two counts of Assault in the Third Degree-Special Victim, class D felonies, and one count of Assault in the Third Degree, a class E felony. See State of Missouri v. William C. Olsten, No. 1922-CR02199 (22nd Jud. Cir., State of Mo.). (Doc. 55-1, Ex. A.) Count I of the criminal complaint charges that Olsten knowingly caused physical injury to R.A. (the plaintiff in this case), a disabled person and special victim, by spraying him with pepper spray on September 29, 2017. (Id.) As a result, the City Counselor's Office moved to withdraw as counsel for Olsten on August 23, 2019. (Doc. 44.) The motion to withdraw was granted (Doc. 46) and Olsten subsequently obtained his current counsel, who filed Olsten's answer to the complaint and the instant motion to stay proceedings. On September 19, 2019, Olsten was indicted by a grand jury in the City of St. Louis on the same three charges.

         Olsten seeks an indefinite stay pending final resolution of the pending state criminal proceedings on the basis that the criminal prosecution and the claim in this matter arise from the same facts and involve “identical issues and witnesses.” Olsten asserts he will suffer irreparable harm if this case proceeds and he is forced to choose between asserting and preserving his constitutional right against self-incrimination and defending himself by responding to discovery and testifying. (Doc. 55.)

         Plaintiff opposes the motion, contending a stay is inappropriate as Olsten waived his Fifth Amendment rights in this proceeding by filing an Answer that did not assert the privilege. Plaintiff further contends that even if Olsten did not waive the privilege a stay is not warranted and would be prejudicial to plaintiff. (Doc. 58.) In the alternative, plaintiff asserts that a stay of the entire case is not appropriate and discovery as to the City and defendant John Hayden should be allowed to proceed while discovery and deposition of Olsten can be conducted after his criminal case has been resolved.

         II. Discussion

         A. Olsten Has Not Waived his Fifth Amendment Rights

         Plaintiff's threshold argument is that Olsten waived the right to invoke his Fifth Amendment privilege against self-incrimination by filing an answer that does not assert the privilege, but instead “admits and denies specific allegations regarding the conduct at issue.” (Doc. 58-1 at 3.) Olsten did not file a reply in ...

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