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White v. Jackson

United States Court of Appeals, Eighth Circuit

August 1, 2017

Tracey White; DeWayne Anton Matthews, Jr.; Damon Coleman; Theophilus Green; Kerry White; Antawn Harris; Sandy Bowers; William Davis; Nathan Burns; Kai Bowers Plaintiffs - Appellants
v.
Thomas Jackson; John Belmar; Justin Cosmo; St. Louis County, Missouri; City of Ferguson, Missouri; David Ryan; Terrence McCoy; Michael McCann; Derik Jackson; Joe Patterson; Aaron Vinson; William Bates; Nicholas Payne; Daniel Hill; Antonio Valentine; Matt Delia; David "Ryan" DeVouton; Brandon McKinnon Defendants - Appellees

          Submitted: June 7, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          MURPHY, Circuit Judge.

         Michael Brown, Jr. was killed by a police officer in Ferguson, Missouri on August 9, 2014. In the days that followed, large crowds gathered in Ferguson. While the crowds were largely peaceful, at times they became violent. This action concerns six sets of plaintiffs who allege multiple claims related to the police response to the demonstrations. The district court granted defendants summary judgment on all plaintiffs' claims, and plaintiffs appeal. We affirm in part, reverse in part, and remand.

         I. Background

         On August 9, 2014, Ferguson police officer Darren Wilson shot Michael Brown, Jr. killing him. In the following days, large crowds gathered in Ferguson, and the crowds turned violent on several evenings in the week following Brown's death. Individuals threw objects at the police, discharged firearms, looted businesses, and set a convenience store on fire. The epicenter of this unrest was West Florissant Avenue which runs north and south and is located on the eastern edge of the City of Ferguson. In response to the civil unrest, the Ferguson Police Department requested assistance from the St. Louis County Police Department and from other municipal police departments located in the county. This action concerns six sets of plaintiffs who allege state and federal claims against the individual defendants, St. Louis County, and the City of Ferguson.

         A. Nathan Burns

         On the evening of August 11, Nathan Burns and a friend were standing near Gage Drive and West Florissant Avenue in Ferguson. A crowd of approximately one hundred people was assembled near Gage and West Florissant. Members of the crowd were throwing objects at the police who attempted to disperse the crowd by instructions and by the use of smoke and tear gas. Burns did not follow the orders to disperse. While standing with a small group of others, who also remained in the area, he was sprayed with pepper spray by St. Louis Metropolitan police officers who were not named as defendants in this action.

         St. Louis County police officers Terence McCoy and Daniel Hill arrested Burns after he had been pepper sprayed. Burns testified that officers had deployed pepper spray on him several times, but he did not identify the individual officers. After McCoy and Hill arrested Burns they transferred him to other officers who transported him to the St. Louis County Jail. Burns testified that while he was in handcuffs an officer with pepper spray on his hands had placed his hand between Burns' pants and his underwear and rubbed his genital area. It is unclear from Burns' testimony the time at which this occurred, and Burns did not identify the officer.

         Burns alleges state law claims for false arrest, intentional infliction of emotional distress, and assault and battery against St. Louis County police officers McCoy, Hill, and Michael McCann. He also alleges negligent supervision against the City of Ferguson and St. Louis County. His remaining federal civil rights claims under 42 U.S.C. § 1983 for unreasonable seizure and excessive force are brought against McCann, McCoy, and Hill; claims for failure to train, supervise, and discipline are brought against the City of Ferguson, its police chief Thomas Jackson, St. Louis County, and its police chief Jon Belmar.

         B. Damon Coleman and Theophilus Green

         On August 11, Maryland Heights police lieutenant Matt Delia, officer Brandon McKinnon, and officer David "Ryan" DeVouton were assigned to play a support role to the St. Louis County tactical operations on West Florissant Avenue. Delia, McKinnon, and DeVouton were not equipped with firearms capable of discharging nonlethal projectiles. That night, the St. Louis County police department determined that the crowds had turned violent and that they therefore needed to be dispersed. County officers then made announcements to the crowd to disperse.

         That evening the tactical unit proceeded toward West Florissant and Canfield Drive because they had received reports of gunfire in that area. While the unit was moving down West Florissant, officers noticed two individuals standing in a nearby parking lot. The individuals were later identified as Damon Coleman and Theophilus Green. They were near a group of approximately 15 to 20 people who were repeatedly ordered to disperse by county officers. The group dispersed except for Coleman and Green who made no effort to leave while yelling at the police officers.

         As officers approached Coleman and Green, they hit the two with nonlethal projectiles. Lieutenant Delia instructed officer DeVouton to arrest Coleman and Green, and officer DeVouton made the arrests while officer McKinnon stood nearby and observed. Coleman later testified that about four officers had applied force to him during his arrest and that while he was lying on his stomach and being handcuffed, he was kicked, struck with a stick, and dragged on the ground.

         Coleman and Green allege state law claims for false arrest and intentional infliction of emotional distress against unidentified police officers from the City of Maryland Heights and an assault and battery claim against Maryland Heights police lieutenant Delia and officers McKinnon and DeVouton. They also allege negligent supervision against St. Louis County. Section 1983 claims for unreasonable seizure and excessive force were also brought against Delia, McKinnon, and DeVouton, as well as failure to train, supervise, and discipline against St. Louis County and chief Belmar.

         C. Antawn Harris

         At approximately 7:00 p.m. on the evening of August 11, Antawn Harris walked from his apartment to a barbeque restaurant on the corner of West Florissant Avenue and Canfield Drive. Harris saw that the police were attempting to disperse the crowd on West Florissant and had deployed tear gas, but Harris did not disperse. Instead, he stayed and filmed the events on his phone. Harris testified that while he was standing near the street, a police officer shot him in the face with a nonlethal projectile. Harris was not able to identify the officer who shot him or the department to which he belonged. Harris was taken to the hospital, was discharged that evening, and did not seek any follow up care.

         Harris alleges state law claims for intentional infliction of emotional distress and assault and battery against unidentified police officers from the City of Ferguson and St. Louis County. He also alleges negligent supervision against the City of Ferguson and St. Louis County. He finally alleges § 1983 claims for unreasonable seizure and excessive force against unidentified police officers from the City of Ferguson and St. Louis County and for failure to train, supervise, and discipline against the City of Ferguson, chief Jackson, St. Louis County, and chief Belmar.

         D. Kerry White, Sandy Bowers, and Kai Bowers

         On the following evening of August 12, crowds near West Florissant Avenue and Chambers Road became violent. Police had heard gunshots, and people were throwing objects and directing threats at the officers. Police officers made announcements on loud speakers instructing the crowd to disperse. The police also deployed smoke and tear gas. In an additional effort to disperse the crowds, police officers formed a skirmish line. The skirmish line headed east on Chambers Road where a crowd of about 40 or 50 people were standing. At around midnight the police line reached Chambers Road and Lorna Lane. There were between 10 and 50 people on Lorna Lane at this time.

         When the skirmish line reached the intersection of Chambers and Lorna, a police helicopter alerted officers on the ground that a car was driving on Lorna toward the police line. The officers in the skirmish line observed a car driving toward them shortly thereafter. They gave several instructions for the car to stop, but it continued moving toward them. When it stopped close to the police line, the occupants (Kerry White, Sandy Bowers, and Kai Bowers) were arrested for refusal to disperse.

         Kerry White alleges state law claims for false arrest and assault and battery against St. Louis County police officers McCann, McCoy, Hill, and Antonio Valentine. He also alleges a § 1983 claim for unreasonable seizure against the same four officers. Sandy and Kai Bowers allege state law claims for false arrest and assault and battery against St. Louis County police officers McCann, Hill, Valentine, and St. Louis County detective Nicholas Payne. They also allege § 1983 claims for unreasonable seizure against the same officers. All three plaintiffs allege negligent supervision against the City of Ferguson and St. Louis County and a § 1983 claim for failure to train, supervise, and discipline against the City of Ferguson, chief Jackson, St. Louis County, and chief Belmar.

         E. Tracey White and William Davis

         Tracey White and her son William Davis attended a rally in Ferguson on August 13. At approximately 6:00 p.m. White and Davis walked to a McDonald's near the corner of West Florissant Avenue and Ferguson Avenue. They ordered food and waited for White's husband to pick them up. At approximately 7:00 p.m. police officers told everyone inside the restaurant that they had to leave. St. Louis County police sergeant David Ryan testified that the businesses along West Florissant Avenue were cleared due to the violence that had occurred in the days prior to August 13.

         Police officers then directed the crowd of people on the street to move west on Ferguson Avenue. The police instructed the crowd that they could be picked up at the intersection of Sharondale Circle and Ferguson Avenue. When officers reached that intersection, however, they encountered a truck that was stuck in the grass by the side of the road. Because officers did not know who was driving the truck or why it was there, they decided ...


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