Eighth Circuit rejects qualified immunity for police supervisory and
subordinate officers in crowd control operation
Immunity Fail – 1st & 4th Amendment
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.
No qualified immunity for officers in ‘kettling’ case
Police officers who orchestrated an allegedly violent mass arrest of peaceful protestors and innocent bystanders in St. Louis, Mo., are not entitled to qualified immunity in a lawsuit alleging they violated a man’s constitutional rights, the Eighth Circuit has ruled. (Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022).)
Baude brought claims against the city and its police department under 42 U.S.C. §1983 for violations of his constitutional rights under the First, Fourth, and Fourteenth Amendments. He also stated in his complaint that many of the people in the kettle were not protesters—they were local residents, business owners, journalists, and others who were rounded up indiscriminately and herded into the kettle, where they were arrested en masse. The plaintiff also alleged that he observed officers acting indiscriminately and using force—including deploying pepper spray and kicking, beating, and dragging—against people in the kettle who were not behaving violently or aggressively.
The district court rejected the defendants’ qualified immunity defense. They filed an interlocutory appeal with the Eighth Circuit, which affirmed.
The Eighth Circuit held that the plaintiff met his burden to state a plausible claim that the defendants’ actions violated his clearly established constitutional rights and that the officers were not entitled to qualified immunity at this stage. On the Fourth Amendment unreasonable seizure claim, the plaintiff alleged that the officers did not warn him or the others that they were going to be confined to an area and arrested en masse. Even though a mass arrest can be legal under the Fourth Amendment, the court explained, it requires that police “have grounds to believe all arrested persons were a part of the unit observed violating the law.” This can include innocent bystanders whom police incorrectly believe are part of the unit violating the law, but video from the incident that showed people milling about freely and moving in and out of the kettle area even after the police purportedly ordered the crowd to disperse raised questions of fact. The court noted that the video did not “show any real sense of urgency or confrontation visible in the crowd” and that the officers could not rely on the earlier actions of a small group of people whom they claimed were acting violently to justify a mass arrest.
On the plaintiff’s Fourth Amendment excessive force claim, the court stated that this constitutional right was clearly established at the time of his arrest—one of the two requirements of the test for qualified immunity. Thus, the plaintiff needed to prove only that the force used against him—pepper spraying him and zip tying his hands—was objectively unreasonable. Again referencing video evidence from the incident, the court concluded that it “paint[ed] 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” and that this was sufficient at the pleading stage to call into question whether the officers acted reasonably.
The court also held that the plaintiff’s claims against supervisory officers of the St. Louis police department could proceed. The court rejected the officers’ contention that they were entitled to qualified immunity because they did not participate in the use of force against the plaintiff and that they had no obligation to intervene in the mass arrest if they believed their subordinate officers were acting reasonably. The court explained that Eighth Circuit precedent at the time of the incident clearly established that supervisory officers who fail to intervene when they have knowledge of subordinate officers’ actions that create a “substantial risk of serious harm” can be liable for a Fourth Amendment violation. Because the plaintiff’s allegations and the video evidence raise factual questions on this issue, it is for a fact-finder to decide, the court concluded.
“When the Eighth Circuit saw the video, it ruled that it matched our allegations and that there’s no basis to give qualified immunity to these arguments,” said St. Louis attorney Javad Khazaeli, who represents Baude. “We would hope, at some point, that the city of St. Louis, after being told repeatedly by district court judges and Eighth Circuit appellate judges that what its officers did was wrong that it would finally hold somebody accountable.” Khazaeli noted that more than a dozen other cases and a class action are pending against the defendants for what happened that night.
Police “Kettling” And Keeping The Peace
Baude v. Leyshock from the Eighth Circuit has a lot of legal issues that we have discussed and a new term that we have not, which is “kettling.” First let’s start with what we have discussed before: our case today brings to question excessive use of force during a protest. As a reminder, a court evaluates the reasonableness of the force by examining the severity of the crime at issue, whether the suspect poses an immediate threat to the officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. This case also highlights the duty to intervene and the claim from the plaintiff that supervisory officers did not do so: Officers have an affirmative duty to protect individuals from constitutional violations by fellow officers. To hold an officer liable for failure to intervene it must be shown that the officer knew a person’s rights were being violated, had an opportunity to intervene, and chose not to do so.
The one new term that we have not discussed is “kettling.” The court brings up this term and states that “kettling” may be considered excessive during protests if there is no need for it. “Kettling” (also known as containment or corralling) is a police tactic for controlling large crowds during demonstrations or protests. It involves the formation of large barricades of police officers who then move to contain a crowd within a limited area.
On September 17, 2017, between 8:00 p.m. and 9:00 p.m., a “handful” of individuals protesting the acquittal of a police officer charged with murder broke windows and destroyed flowerpots on Olive Street in downtown St. Louis, Missouri. Twice before 9:00 p.m., a police officer gave dispersal orders to the small number of protestors who were present. Over the next two hours, police officers of the St. Louis Metropolitan Police Department began blocking roads and directing civilians to the intersection of Washington Avenue and Tucker Boulevard, an area containing condominiums, apartment buildings, and businesses, including restaurants and bars.
Brian Baude, who lived near the intersection, saw reports on social media that protesters had destroyed property in the area, so he decided to investigate. He left his home around 9:30 p.m., unaware of the earlier dispersal orders. According to Baude, Lieutenant Colonel Gerald Leyshock approved a plan in which St. Louis Metropolitan officers would prohibit anyone from leaving the vicinity of Washington Avenue and Tucker Boulevard and arrest everyone present. Afterwards, officers surrounded, squeezed, and eventually blocked anyone from leaving the intersection of Washington Avenue and Tucker Boulevard using a technique Baude described as “kettling.” When Baude saw the police herding the bystanders into a confined space, he asked to leave the intersection but was informed by officers that it was too late. In addition to Baude, those being contained by the SLMPD officers included downtown residents, business patrons, protesters, observers, and members of the press. Video evidence documented multiple citizens approaching officers and requesting permission to leave, which was denied. After Baude was herded into the intersection by SLMPD officers, he was pepper-sprayed by an officer and arrested as part of a mass arrest. Baude claimed 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 14 hours. Baude was eventually released, and charges against him were dismissed.
Baude sued Lieutenant Colonel Gerald Leyshock and several other SLMPD supervisory and subordinate officers for violating his constitutional rights. First, Baude claimed that the subordinate officers unlawfully seized him in violation of the Fourth Amendment by arresting him without probable cause that he had committed a crime.
Second, Baude claimed that the officers violated his Fourth Amendment right to be free from excessive force when they “kettled” him, pepper-sprayed him, and zip-tied his hands.
Third, Baude claimed that supervisory officers either observed the excessive use of force by subordinate officers or intended for subordinate officers to use excessive force and subsequently did not intervene to stop it. After the district court denied the officers qualified immunity, they appealed.
Eighth Circuit Court Opinion
Concerning Baude’s unreasonable seizure claim, the Eighth Circuit Court of Appeals found that it was undisputed that Baude was seized when the officers indiscriminately encircled all individuals in the area, including protestors, observers, business patrons, and residents who were simply walking by, and then refused to allow anyone to leave voluntarily. Specifically, Baude alleged that 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 alleged that, even though he was at all times peaceful, the officers denied his request to leave the area and then arrested him without probable cause.
After being seized, Baude alleged that subordinate officers relayed information about the crowd to their supervisors, who directed the subordinate officers to arrest Baude without probable cause that he had committed a criminal offense. The court noted that the subordinate officer was not entitled to qualified immunity because his claim that he was just following his superiors’ allegedly lawful orders to arrest Baude was contradicted by Baude’s allegations regarding his own conduct.
The court stated that it was required to consider Baude’s allegations and accompanying exhibits as true and view them in Baude’s favor. As a result, the court concluded that Baude’s allegations and the accompanying video of the encounter stated a “plausible claim” that the officers’ conduct constituted an unlawful arrest; therefore, the officers were not entitled to qualified immunity.
Regarding Baude’s excessive force claim, the court found that Baude’s allegations and the video evidence submitted established that Baude was 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 added that, at this stage of the proceedings, some specific questions such as whether “kettling” a crowd was in-and-of itself excessive force, whether the application of zip-ties caused any injury, or whether Baude was actually compliant could not be determined. Consequently, the court held that when viewing the alleged facts in a light most favorable to Baude, which it was required to do, the court could not conclude that the use of force against Baude was objectively reasonable.
Concerning Baude’s claim that the officers failed to intervene, Baude alleged that it was the coordinated actions of the officers in surrounding the assembly and using chemical agents that 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 the officers. Although the officers disputed these allegations, the court noted that at this stage of the proceedings, it was required to accept as true all facts pleaded by Baude. Therefore, the court held that the supervisory officers were not entitled to qualified immunity on Baude’s failure to intervene claim.
The recent years have seen an increase in protests and the use of social media has made it easy for crowds to gather quickly. In this case, the officers only informed the original protesters about the dispersal orders. Just because a crowd had formed earlier to protest something, it does not mean that those who are passing through later should be corralled. The officers in this situation indiscriminately encircled all individuals in the area, including protestors, observers, business patrons, and residents who were simply walking by, and then refused to allow anyone to leave voluntarily. This type of conduct is unacceptable for officers. Their role is to keep the peace and protect the community, not to impose unnecessary sanctions. In this situation, the supervisors had a responsibility to intervene and prevent this kind of conduct. Under no circumstances should officers prevent residents from leaving an area if there is no credible safety concern.
Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022)