Eighth Circuit rejects qualified immunity for police supervisory and subordinate officers in crowd control operation
Jury trial required to determine liability for mass arrest, alleged excessive force and supervisory indifference
A public protest developed in St. Louis, Missouri following the acquittal of a St. Louis Metropolitan Police Department (SLMPD) officer who had been charged with murder.
During the protest, some of the protestors broke windows and destroyed flowerpots on Olive Street in downtown St. Louis. An SLMPD sergeant gave two dispersal orders to the small number of protestors still present at the conclusion of the property destruction. Plaintiff Baude was not present when the orders to disperse were given.
Over the next couple of hours, SLMPD officers began blocking nearby roads and directed civilians to the intersection of Washington Ave. and Tucker Boulevard. Baude, who lived near the intersection, decided to leave his residence and see what was going on. He was unaware of the earlier dispersal orders.
An SLMPD lieutenant suggested to SLMPD Lt. Colonel Leyshock that all the people at the above intersection be arrested, and he agreed.  Subsequently, officers formed four perimeter lines; surrounded civilians in and around the targeted intersection; squeezed them together and blocked them from leaving.
Baude described this police tactic as “kettling.” Baude asked if he could leave but officers told him it was too late. A video showed officers grabbing an African American male who was outside the perimeter and throwing him inside. Baude alleged in his complaint that officers pepper-sprayed and beat an undercover black officer during the kettling maneuver.
Baude was pepper-sprayed by an officer and arrested along with the others located within the police perimeter. Baude’s hands were zip-tied, and he was held for 14 hours before he was released with a date to appear in court. The court date was later canceled. Baude alleges that some of the others arrested with him, although not acting violently or aggressively, were nonetheless repeatedly and without warning doused with chemical sprays, kicked, beaten and dragged by officers. Over 100 people were arrested that evening. Baude’s complaint included a photo of 16 smiling officers posing with a banner that stated, “Thank you for visiting the Washington Avenue Entertainment District & Neighborhood.”
Approximately a year after this situation happened, four SLMPD officers were indicted for their actions in this incident. Emails located during the criminal investigation disclosed that officers were informed before the arrests took place that they would be deployed wearing military-type tactical dress to conceal their identities for the purpose of beating protestors.
Baude alleges that Lt. Colonel Leyshock, two lieutenants, three sergeants and six line officers removed their name tags from their uniforms and violated his Fourth Amendment rights to be free from arrest without probable cause and from the use of excessive force. He also alleged that he has a video showing a sergeant standing next to line officers who were pepper-spraying and beating peaceful and compliant citizens without intervening to stop them. Baude sued Leyshock, the other supervisory officers and some line officers pursuant to the federal civil rights statute (42 U.S.C. § 1983). The District Court Judge ruled that the suit should proceed to trial and the officers filed an appeal.
The Eighth Circuit Court of Appeals decision
The Eighth Circuit affirmed the lower court ruling against all defendants  and initially reviewed Baude’s claim that he was illegally seized by the police “kettling” maneuver.
The mass seizure and arrest - The court determined that Baude was seized by the police kettling maneuver, which involved the indiscriminate encircling of all individuals at the street intersection including not only protestors but also persons walking by and local residents.
The court also ruled that for purposes of moving the case to trial, the police kettling action amounted to an unreasonable seizure. The court explained that “a mass arrest may satisfy the Fourth Amendment’s protections [ against unreasonable seizure] if the police have ‘grounds to believe all arrested persons were a part of the unit observed violating the law.’”  Moreover in that situation the police action would be lawful, “even if some innocent bystanders are mistakenly believed to be part of the [ offending] unit.” The court stated that where there is probable cause to believe that all in a group are part of a unit breaking the law, “the Fourth Amendment does not require a probable cause determination with respect to each individual in a large and potentially riotous group before making arrests.” 
In the instant matter, the court observed that after the two dispersal orders were given, the police permitted people to enter and exit the conflict zone without a problem. The court observed further that “there was no attempt … to separate the subset of people engaged in earlier acts of violence or vandalism … from innocent bystanders milling about.” The court stated that officers are not entitled to qualified immunity by “alleging that the ‘unlawful acts of a small group’ justify the arrest of the mass.’” 
The use of excessive force – The court noted that the allegations set forth in Baude’s complaint coupled with available videotape 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.” The court explained that “we cannot conclude as a matter of law that the force used against Baude, … was objectively reasonable.”  The court rejected qualified immunity assertions by defendant subordinate officers who claimed that they simply followed the lawful orders of their superiors.
Failure to supervise – The court reviewed Baude’s complaint and noted that he alleged that the superior officers present at the scene of the incident issued orders for the use of excessive force. He alleged that superior officers not only had notice of the planned kettling of the crowd and the systematic disbursement of chemical agents but actually sanctioned the conduct of subordinate officers.
The court responded by stating, “supervisory officers who act with deliberate indifference toward the violation or, in other words, are aware that the actions of their subordinates create a substantial risk of serious harm, may be liable if they fail to intervene to mitigate the risk of harm.”  The court decided to reject the supervisory officers’ assertion of qualified immunity and permit a jury to decide whether these officials’ actions or inaction crossed into unconstitutional territory.
Although this case remains unresolved until a jury decides disputed material facts, certain important lessons can be gleaned from a review of the Eighth Circuit opinion:
- When attempting to control crowds of protestors, some of whom are engaging in unlawful acts, efforts should be attempted, if feasible, to distinguish between lawful participants and those committing unlawful acts, with a goal of arresting only the lawbreakers. It would be wise to place intelligence officers strategically near the location of serious lawbreakers to focus arrest tactics on those truly deserving it.
- Before deciding to conduct a mass arrest of all crowd participants, probable cause that virtually all those about to be arrested are part of a unit involved in law-breaking acts must exist.
- Where there is probable cause to believe that all in a group are part of a unit breaking the law, “the Fourth Amendment does not require a probable cause determination with respect to each individual in a large and potentially riotous group before making arrests.” 
- When an order to disperse is given to those in a crowd, officers should give those directed to leave a reasonable amount of time to disperse. At the conclusion of a reasonable period of time to disperse, one final order to disperse should be considered to demonstrate that the subsequent police action was reasonable.
- Once an order to disperse is given, officers should be positioned to prevent crowd participants, residents and other innocent bystanders from entering or reentering the designated area in question.
- All police participants in crowd control efforts should be ordered to take no photographs, videos, or create and send any electronic communication unless essential to the successful outcome of the mission.
- Police supervisory officials are likely to be found constitutionally liable not only for their own unlawful actions, decisions and orders but also for their failure to intervene in situations where subordinate officers are acting unlawfully, e.g., using excessive force. 
1. It should be noted that the facts described above are gleaned from Baude’s court-filed complaint and would be subject to challenge at trial if the case were to proceed that far. Prior to a jury trial federal appellate courts must view disputed facts in favor of the plaintiff in the absence of clear and convincing evidence to the contrary, e.g., video evidence.
2. Baude v. Gerald Leyshock, et. al. (No. 20-2864) (8th Cir. 2022).
3. (Quoting) Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012).
4. Id. at 1003.
5. Id. at 1005.
6. This is not a final decision by the court. The court is passing the final decision on the issues of illegal arrest and excessive force to a jury at a future trial.
7. Additional internal quotes and citations were omitted.
8. Id. at 1003.
9. These crowd control recommendations were prepared with the assistance of Norwood, Massachusetts Chief of Police, William Brooks. Chief Brooks served as president of the Massachusetts Chiefs of Police Association in 2016 and sits on the Board of Directors of the International Association of Chiefs of Police. He is a graduate of the FBI National Academy.