Tracey White; DeWayne Anton Matthews, Jr.; Damon Coleman; Theophilus Green; Kerry White; Antawn Harris; Sandy Bowers; William Davis; Nathan Burns; Kai Bowers Plaintiffs - Appellants
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
from United States District Court for the Eastern District of
Missouri - St. Louis
LOKEN, MURPHY, and MELLOY, Circuit Judges.
MURPHY, Circuit Judge.
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.
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.
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.
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.
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.
Damon Coleman and Theophilus Green
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.
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.
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.
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
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.
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.
Kerry White, Sandy Bowers, and Kai Bowers
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.
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
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
Tracey White and William Davis
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.
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 ...