Brian Baude v. Gerald Leyshock

United States Court of Appeals
For the Eighth Circuit
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No. 20-2864
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Brian Baude
Plaintiff - Appellee
v.
Gerald Leyshock, et al.
Defendants - Appellants
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 28, 2021
Filed: January 27, 2022
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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ERICKSON, Circuit Judge.
This case is one of many arising out of the protests and unrest that occurred
after Officer Jason Stockley was acquitted of the murder of Anthony Lamar Smith
on September 15, 2017. Following his arrest, Brian Baude sued the City of St. Louis,
Missouri, and various police officers of the St. Louis Metropolitan Police
Department (“SLMPD”), alleging claims under 42 U.S.C. § 1983 for violations of
his First, Fourth, and Fourteenth Amendment rights and conspiracy to violate those

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rights, and under Missouri state law. Baude alleges that on September 17, 2017, he
and others were boxed into an intersection by SLMPD officers, pepper sprayed,
arrested, and restrained with zip ties. The officers asserted the defense of qualified
immunity on the § 1983 claims. The district court1 denied, in part, the officers’
motion for judgment on the pleadings, and they filed this interlocutory appeal. “An
interlocutory order denying a motion to dismiss based on qualified immunity is
immediately appealable.” Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018).
Reviewing the denial of qualified immunity de novo, we affirm.
I. BACKGROUND
Our review of the denial of the motion to dismiss based on qualified immunity
is limited to the facts alleged in Baude’s lengthy second amended complaint, which
we accept as true and view most favorably to Baude. Hager v. Ark. Dep’t of Health,
735 F.3d 1009, 1013 (8th Cir. 2013). The parties attached voluminous materials to
their pleadings, which we may also consider. See Buckley v. Hennepin Cnty., 9
F.4th 757, 760 (8th Cir. 2021) (noting we may rely on materials necessarily
embraced by the pleadings).
According to the allegations in the second amended complaint, between
8:00 p.m. and 9:00 p.m., a handful of individuals broke windows and destroyed
flowerpots on Olive Street in downtown St. Louis. There is no evidence or allegation
that Baude was in any way involved in the destruction of property. At approximately
8:48 p.m. and 8:51 p.m., Sergeant Brian Rossomanno gave two dispersal orders to
the small number of protestors present at the time. Baude, however, was not at the
location when the alleged dispersal orders were given.
Over the next two-plus hours, SLMPD officers began blocking roads and
directing civilians to the intersection of Washington Avenue and Tucker Boulevard,
1 The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.

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which is an area containing condominiums, apartment buildings, and businesses,
including restaurants and bars. While many of the individuals present were loitering
and milling about the area, a small group of individuals were loudly reminding the
officers of their right to assemble. Some sat down on the road, although a vehicle
was captured on video driving slowly down the street, unimpeded by the group.
Baude, who lived near the intersection, saw reports on social media that protestors
had destroyed property in the area, and he decided to go out and investigate. Baude
left his home around 9:30 p.m., completely unaware of the earlier dispersal orders.
Lieutenant Timothy Sachs presented to Lieutenant Colonel Gerald Leyshock
his proposal to not let anyone leave the vicinity of Washington Avenue and Tucker
Boulevard and to arrest everyone present. As alleged in the second amended
complaint, Lieutenant Colonel Leyshock approved this course of action. Around
11:15 p.m. or 11:20 p.m., SLMPD officers began forming four perimeter lines,
extending across the streets and sidewalks on Washington Avenue and Tucker
Boulevard. The SLMPD officers surrounded, squeezed, and eventually blocked
anyone from leaving the intersection of Washington Avenue and Tucker Boulevard
in a technique Baude describes as “kettling.”
When Baude observed the police herding the bystanders into a confined space,
he asked to leave the intersection but was informed by SLMPD officers that it was
too late. In addition to Baude, those being contained by the SLMPD officers
included downtown residents, business patrons, protestors, observers, and members
of the press. Video evidence documented multiple citizens approaching SLMPD
officers and requesting permission to leave. Their requests were not only ignored
but also met with commands to “get back!” Video evidence also shows SLMPD
officers grabbing an African American male, who was outside the kettle, and
throwing him inside the kettle. Although an SLMPD officer suffered a serious injury
during this ordeal, the second amended complaint alleges that the injured officer was
an African American undercover SLMPD officer who was pepper sprayed and
beaten by his fellow uniformed SLMPD officers.

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Although the officers assert that they announced dispersal and unlawful
assembly warnings in-person and via public address, the number of orders and who
heard them is disputed. Baude, having been herded into the intersection by SLMPD
officers and unable to leave, was pepper sprayed by an unnamed SLMPD officer and
arrested as part of a mass arrest. Baude alleges that during the course of his arrest
and detention, his hands were zip-tied, and he was transported to the City Justice
Center where he was searched and held for fourteen hours. Baude was eventually
released with a court date, which was later cancelled.
Baude further alleges that individuals inside the kettle with him, who were not
acting violently or aggressively, were indiscriminately and repeatedly doused with
chemical agents without warning. Others were kicked, beaten, and dragged by
SLMPD officers. Some individuals who were wearing goggles to protect themselves
had their goggles removed by SLMPD officers and then sprayed directly in the face
with pepper spray. During the arrests of over 100 people, Baude alleges that SLMPD
officers yelled derogatory and homophobic epithets at those being arrested. He
alleges that several individuals who had been handcuffed with zip-ties continued to
suffer pain and numbness in their hands months after the incident.
In his second amended complaint, Baude included a photograph of at least
sixteen smiling SLMPD officers posing with a banner that stated, “Thank you for
visiting the Washington Avenue Entertainment District & Neighborhood,” which
was posted on Twitter by an anonymous person on the night of the mass arrest. In
addition, Baude alleges that during and after the arrests, SLMPD officers were
observed “high fiving each other, smoking celebratory cigars, taking selfies on their
personal phones with arrestees against the arrestees[’] will, and chanting ‘Whose
Streets? Our Streets!’” Baude further alleges that the day after the mass arrest, the
SLMPD acting police chief, while standing next to then-St. Louis Mayor Lyda
Krewson, reinforced the propriety of the officers’ actions by stating, “I’m proud to
say the city of St. Louis and the police owned the night.” Approximately a year after
the mass arrest, four SLMPD officers were indicted for their conduct. The
indictment included emails demonstrating that officers were informed ahead of time

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that they would be deployed wearing military-type tactical dress to conceal their
identities for the purpose of beating protestors.
Baude alleges that Lieutenant Colonel Gerald Leyshock, Lieutenant Scott
Boyher, Lieutenant Timothy Sachs, Sergeant Randy Jemerson, Sergeant Matthew
Karnowski, Sergeant Brian Rossomanno, Officer Timothy Bockskopf, and five
“John Doe” officers of the SLMPD who removed their name tags from their
uniforms in violation of guidance promulgated by the United States Department of
Justice and standard law enforcement practices (collectively, the “Officers”) violated
his constitutional rights when the Officers knew or should have known that there
was no probable cause for his arrest and that there was no legal justification for use
of force against him. As to Sergeant Rossomanno, Baude specifically alleges he
“can be seen on video within arms-length of SLMPD officers who were pepper
spraying and beating peaceful and compliant citizens. Rather than instructing these
officers to cease violating the civil rights of the citizens, Defendant Rossomanno
took control of the situation and directed the officers’ unlawful actions.”
II. DISCUSSION
We have limited jurisdiction over interlocutory appeals involving qualified
immunity. We do not have jurisdiction to resolve factual disputes, but we have
jurisdiction to consider de novo the legal question of whether the Officers are entitled
to qualified immunity. Prater v. Dahm, 89 F.3d 538, 540 (8th Cir. 1996). To prevail
at this stage in the proceedings, the Officers must show they are “entitled to qualified
immunity ‘on the face of the complaint.’” Stanley, 899 F.3d at 627 (quoting
Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)).
“Qualified immunity shields government officials from liability in a § 1983
action unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known.” Burbridge v. City
of St. Louis, 2 F.4th 774, 780 (8th Cir. 2021) (quoting Brown v. City of Golden
Valley, 574 F.3d 491, 495 (8th Cir. 2009)) (internal quotation marks omitted).

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Baude alleges violations of his constitutional rights based on allegations and
evidence that he was subjected to an unreasonable seizure and excessive force during
the course of his arrest. The Officers counter with arguments that the arrests were
based on probable cause sufficient to justify a mass arrest because the crowd was
violating various statutes and ordinances as a unit and that the Officers’ use of force
did not violate clearly established law.
A. Unreasonable Seizure
The Fourth Amendment prohibits unreasonable seizures. U.S. Const. amend.
IV. “A Fourth Amendment seizure occurs when an officer restrains the liberty of an
individual through physical force or show of authority,” Quraishi v. St. Charles
Cnty., 986 F.3d 831, 839 (8th Cir. 2021) (citation omitted), such that “a reasonable
person would have believed that he was not free to leave,” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
When a person is surrounded by officers on all sides, he would reasonably
believe that he is no longer free to leave and that he has been seized. See Brower v.
Cnty. of Inyo, 489 U.S. 593, 599 (1989) (holding that setting up roadblocks to stop
fleeing suspects is a seizure). It is indisputable that Baude was seized when the
Officers indiscriminately encircled all individuals in the area, including protestors,
observers, business patrons, and residents simply walking by, and the Officers
refused to allow anyone to leave voluntarily. See id.; see also Mendenhall, 446 U.S.
at 554. Yet, in order for a seizure to be unconstitutional, the conduct must have been
unreasonable.
At the motion to dismiss stage, Baude need only allege sufficient facts to
indicate the seizure was unreasonable. In other words, the complaint need only
“state a claim to relief that is plausible on its face.” Stanley, 899 F.3d at 627 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks
omitted). We thus consider whether the allegations in Baude’s second amended
complaint and evidence in the accompanying exhibits submitted by the parties, taken

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as true and viewed in Baude’s favor, state a plausible claim that the Officers’ conduct
amounts to an unconstitutional seizure. We find that, at the pleadings stage, Baude
has met his burden.
Baude alleges the Officers failed to warn him and the allegedly peaceful group
that they were about to be surrounded, herded into a confined area, and arrested.
Baude also alleges that he was at all times peaceful, but the Officers denied his
request to leave the area. The Officers themselves have admitted that this course of
action “was not a model operation.” The allegations and the accompanying video
of the encounter give rise to a question of fact on the reasonableness of the seizure.
The Officers contend they had at least arguable probable cause to mass arrest
the people, including Baude, who they squeezed into the intersection of Washington
Avenue and Tucker Boulevard. Like the determination of whether a seizure is
reasonable, the lawfulness of the mass arrest is likewise dependent upon resolving
underlying questions of fact. A mass arrest may satisfy the Fourth Amendment’s
protections if the police have “grounds to believe all arrested persons were a part of
the unit observed violating the law.” Bernini v. City of St. Paul, 665 F.3d 997, 1003
(8th Cir. 2012) (citation omitted). This is so even if some innocent bystanders are
mistakenly believed to be part of the unit. See id. at 1005 (determining it was
objectively reasonable for officers to believe they could arrest all those suspected of
being part of the unit while also noting the officers released approximately 200
people in an attempt to avoid custodial arrests of innocent bystanders). Where there
is a unit, “the Fourth Amendment d[oes] not require a probable cause determination
with respect to each individual in a large and potentially riotous group before making
arrests.” Id. at 1003.
The allegations and the accompanying video of the encounter give rise to a
question of fact related to the reasonableness of the seizure. We are unpersuaded
that either Burbridge v. City of St. Louis, 430 F. Supp. 3d 595 (E.D. Mo. 2019),
aff’d, 2 F.4th 774 (8th Cir. 2021), or Bernini, 665 F.3d at 1003–04, resolve this issue
at the pleadings stage.

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The case of Burbridge, 430 F. Supp. 3d at 604, was decided after the record
had been developed and the City of St. Louis and the police officers moved for
summary judgment. Similarly, the evidence in the record in Bernini, 665 F.3d at
1002, also at the summary judgment stage, is distinguishable. In Bernini, the crowd
chanted in unison, lined up directly across from the police, donned gasmasks and
other face coverings as if “preparing for a confrontation,” and were otherwise acting
or moving as a unit or group. Id. at 1004. Here, Baude alleges, and the video
included with the pleadings appears to confirm, that the group of people involved in
the mass arrest not only included a few people noisily proclaiming their
constitutional right to assemble, but others who were generally gawking and milling
about, others on bikes riding through the area, some people sitting on the street and
on the sidewalk, and even a person pushing a baby in a stroller. As noted by the
district court, there are outstanding factual questions about who heard which
declarations related to unlawful assembly and dispersal orders (if any), and whether
the arrestees had the requisite intent to commit any of the alleged crimes.
Until the kettle was effectuated by SLMPD officers, people were freely
entering and exiting the area even after the Officers purportedly issued dispersal
orders. The video evidence does not show any real sense of urgency or confrontation
visible in the crowd. There was no attempt by SLMPD officers to separate the subset
of people previously engaged in earlier acts of violence or vandalism or any unlawful
assembly from the innocent bystanders milling about. The Officers’ assertion that
they had probable cause or arguable probable cause to believe some members of the
crowd violated laws earlier in the day and that “many” were apparently violating the
law by refusing to disperse is insufficient to establish a “unit” that may justify a mass
arrest as a matter of law. Police may be entitled to qualified immunity protections
if they arrest individual offenders with at least arguable probable cause, see White
v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017), but officers cannot enjoy such
protections by alleging that “the unlawful acts of a small group” justify the arrest of
the mass, Bernini, 665 F.3d at 1005.

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B. Excessive Force
Baude also alleges the Officers violated his constitutional right to be free from
excessive force when the Officers “kettled” him, pepper sprayed him, and zip-tied
his hands. “Excessive force claims under the Fourth Amendment are governed by a
reasonableness standard.” White, 865 F.3d at 1074 (citing Graham v. Connor, 490
U.S. 386, 395 (1989)). We evaluate the reasonableness of the force by balancing the
“nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Id. (quoting Graham,
490 U.S. at 396) (internal quotation marks omitted). This balancing of interests
“requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S. at 396)
(internal quotation marks omitted).
Baude’s right to be free from the alleged types of force was clearly established
in September of 2017. See Johnson v. Carroll, 658 F.3d 819, 828 (8th Cir. 2011)
(“throw[ing] to the ground and mac[ing] a nonviolent, suspected misdemeanant who
was not fleeing or herself resisting arrest” is unlawful); see also Chambers v.
Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (handcuffing may give rise to a claim
for excessive force when officers use more than de minimis force). To establish a
constitutional violation, however, Baude must also show the amount of force used
was objectively unreasonable under the particular circumstances. See Graham, 490
U.S. at 397 (stating “the ‘reasonableness’ inquiry in an excessive force case is an
objective one . . . in light of the facts and circumstances”).
The pleadings before us and video evidence paint a picture of a compliant
individual among a generally peaceful and compliant crowd who was boxed into an
intersection by police, pepper sprayed, and forcefully arrested. Specific questions
as to whether “kettling” a crowd was in-and-of-itself excessive force, whether the
application of the zip-ties caused the requisite “de minimis injury” to establish a

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constitutional violation, or whether Baude was truly compliant cannot be answered
on this limited record. Based on the allegations and on this record, we cannot
conclude as a matter of law that the force used against Baude, when viewing the
alleged facts in a light most favorable to him, was objectively reasonable. LeMay
v. Mays, 18 F.4th 283, 287–88 (8th Cir. 2021) (affirming the denial of qualified
immunity on a motion to dismiss because “the complaint here states a plausible
claim” of a Fourth Amendment violation).
C. Supervisory Officers
Finally, the supervisory officers contend they are entitled to qualified
immunity because they did not personally participate in any use of force against
Baude, and to the extent that they witnessed any unreasonable force, they either had
no time to intervene or else it was reasonable for them to believe the officers were
using only the necessary force to accomplish the arrest. Even though an officer has
no liability under the doctrines of respondeat superior or supervisor liability, see
Wagner v. Jones, 664 F.3d 259, 275 (8th Cir. 2011), at the time of this mass arrest,
it was “clearly established that an officer who fails to intervene to prevent the
unconstitutional use of excessive force by another officer may be held liable for
violating the Fourth Amendment,” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir.
2009). Supervisory officers who act with “deliberate indifference toward the
violation,” Wagner, 664 F.3d at 275 (quoting Ottman v. City of Independence, 341
F.3d 751, 761 (8th Cir. 2003)), or, in other words, are aware that their subordinates’
actions create a “substantial risk of serious harm,” may be liable if they fail to
intervene to mitigate the risk of harm, id. (quoting Kahle v. Leonard, 477 F.3d 544,
551–52 (8th Cir. 2007)) (internal quotation marks omitted).
Baude has alleged that the supervisory officers observed or intended the use
of excessive force, and no one intervened to halt it. He has further alleged that the
supervisors issued orders allowing their subordinates to use excessive force against
an allegedly peaceful crowd. According to Baude’s allegations, it was “the
coordinated actions of the officers in circling the assembly into the kettle and the

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systematic disbursement of chemical agents, [which made it] clear that these tactics
were planned and that senior officials of the SLMPD not only had notice of but
actually sanctioned the conduct of Defendants.” While these facts are hotly
contested, the allegations and the video documenting the incident present issues that
need to be resolved by a court with the power to decide facts. And this is not such a
court. See Prater, 89 F.3d at 540 (stating the appellate court’s jurisdiction is limited
and the court must “accept as true all facts pled by” the non-moving party at this
stage of litigation). Baude has pled claims of excessive force against the supervising
Officers sufficient at this stage in the proceedings to defeat the Officers’ qualified
immunity defense.
D. Subordinate Officers
Subordinate police officers cannot escape liability when they blindly follow
orders. Rather, their conduct while following orders must be reasonable. We have
held that an assisting officer may rely on the probable cause determination and
follow the directions of an officer who is directing the arrest “as long as the reliance
is reasonable.” Ehlers v. City of Rapid City, 846 F.3d 1002, 1010 (8th Cir. 2017)
(citing Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (en banc)). But here, at
the dismissal stage of the proceedings and on the record before us, there are simply
too many factual disputes and unknowns to determine as a matter of law that the
subordinate officers reasonably relied on their superiors’ orders to arrest the crowd
at the intersection of Washington Avenue and Tucker Boulevard.
For instance, Baude alleges, and the record suggests, that the subordinate
Officers relayed information about the crowd to Lieutenant Colonel Leyshock and
Lieutenant Sachs, which creates a permissible inference that the subordinates were
actively involved in the development of the arrest orders rather than merely
following orders. Also, Baude alleges Officer Bockskopf personally arrested him
without probable cause. He makes specific factual allegations regarding his own
conduct and the conduct of the crowd both before and during the arrest that, if
accepted as true, undermine Officer Bockskopf’s allegedly reasonable reliance on

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his superiors’ allegedly lawful orders to effect the arrest. These are, however, fact
issues that we are without jurisdiction to decide. See Hoyland v. McMenomy, 869
F.3d 644, 651 (8th Cir. 2017) (stating our jurisdiction extends only to questions of
law on an interlocutory appeal).
At this stage of the proceedings, the pleadings and the attached evidence do
not entitle the subordinate Officers to the protection of qualified immunity based on
their arguments that they purportedly and reasonably followed orders from their
supervisors in effecting the arrests. Ehlers, 846 F.3d at 1010. As such, Baude has
alleged a plausible claim for relief against the subordinate Officers.
III. CONCLUSION
Because Baude’s unreasonable seizure and excessive force claims are
factually supported and fall within the liberal pleading standard of plausibility, the
district court did not err in denying the Officers’ motion based on qualified
immunity. See Twombly, 550 U.S. at 557 (finding a complaint will survive the
pleading stage if it merely sets forth “allegations plausibly suggesting” a legal
violation).
We affirm the district court’s judgment.
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