Defendant's Attorney: Abby J. Duncan, Adriano Alfonso Martinez, Brandon D. Laird

Description: St. Louis, Missouri civil rights lawyers represented Plaintiff, who sued Defendants on a 42 U.S.C. 1983 prisoner civil rights violation theory.


This case arises out of a protest that occurred in St. Louis, Missouri following the acquittal of former St. Louis Metropolitan Police Department (“SLMPD”) Officer Jason Stockley in the shooting death of Anthony Lamar Smith. At one of the protests, Defendant/Cross-Claimant William Olsten (“Olsten”) deployed pepper spray at a group of protestors. Plaintiff Heather De Mian (“De Mian”) alleges claims pursuant to 42 U.S.C. § 1983 against Olsten, Defendant Commissioner John Hayden (“Hayden”), and Defendant/Cross-Defendant City of St. Louis, Missouri (the “City”) (collectively, “Defendants”) for their roles in Olsten's use of pepper spray against her. De Mian raises a First Amendment claim against Olsten and Hayden (Count I), a Fourth Amendment claim against Olsten (Count VII),[1] a municipal liability claim against the City (Count

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III),[2] and a civil conspiracy claim against all three Defendants (Count II). De Mian also alleges a number of supplemental state law claims against all Defendants. (Counts IV, V, VI, VIII, and IX). Olsten asserts a crossclaim against the City for reimbursement of all expenses and attorneys' fees he incurred in defending this matter, as well as payment of any damages and costs awarded to De Mian. (Doc. No. 42).

This matter is before the Court on Olsten's motion for summary judgment, (Doc. No. 91), Hayden and the City's motion for summary judgment, (Doc. No. 94), and the City's motion to dismiss Olsten's crossclaim. (Doc. No. 100). The motions for summary judgment will be granted in part, with respect to De Mian's federal law claims. The Court will decline to exercise supplemental jurisdiction over De Mian's remaining state law claims. The City's motion to dismiss Olsten's crossclaim will also be granted, and Olsten's crossclaim will be dismissed without prejudice.

Background

Viewing the evidence and all reasonable inferences in the light most favorable to De Mian for purpose of the motions before the Court, the record establishes the following. On September 15, 2017, Jason Stockley was acquitted of all charges in his criminal case. (Doc. No. 95, the City and Hayden's Statement of Uncontroverted Material Facts (“SUMF”) at ¶ 1). Protests began that day and continued for more than a month. (SUMF at ¶ 3). Some of the protests were peaceful, but others became violent.

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(SUMF at ¶¶ 12-13, 16). On September 29, 2017, one such protest occurred in downtown St. Louis. (SUMF at ¶ 14). At around 7:00 p.m. individuals began protesting around Busch Stadium as a Cardinals game took place inside the Stadium. (Doc. No. 93, Olsten's Statement of Uncontroverted Material Facts (“OSUMF”), at ¶ 5). At approximately 9:00 p.m., a large group of protestors moved south on Broadway and arrived at the intersection of Broadway and Walnut. (OSUMF, at ¶ 8). De Mian, who was in her wheelchair at all relevant times, was present at the protest, in her capacity as a journalist, and recorded a video. (Doc. No. 109, De Mian's Response to SUMF (“DSUMF”) at ¶¶ 26, 27, 36). There are multiple videos of the September 29 protest, including a video taken by De Mian (Doc. No. 93-7, the “De Mian video”), and a video recording by Maverick Media, which depicts police interaction with another protester, Amir Brandy, (Doc. No. 93-5, the “Maverick video”). At one point, as protesters were dispersing from the area, officers stopped remaining protestors to allow vehicles to move through the intersection. (OSUMF, at ¶¶ 11, 12). As police were waiving traffic through, an altercation occurred between multiple officers and several protestors. One protestor was taken to the ground, an officer deployed a taser at one of the protestors, and two protestors were arrested. (SUMF at ¶ 22-23). Olsten was not involved in the arrest or the tasing, but he did escort one of the arrestees from the scene. (SUMF at ¶ 23).

During the arrests, a number of protestors - including De Mian - returned to the area where the arrests were occurring. (SUMF at ¶¶ 25-28). Protestors began yelling and screaming at the officers. (OSUMF, at ¶ 21; SUMF at ¶¶ 25, 28-29). As the officers escorted the arrested protestors away, other protesters approached the officers. Olsten and other officers issued numerous commands to the protestors to “get back” or back up. (SUMF at ¶ 32; OSUMF at ¶ 25). Olsten was holding a pepper spray fogger at the time. Brandy followed Olsten and yelled: “Put that s*** in my face, I'm going to f*** you up.” (DSUMF at ¶ 29). Olsten stepped toward Brandy and told him to “Come and f*** me up then” and “keep coming,” and motioned at him with the hand holding the pepper spray. (DSUMF at ¶¶ 31-32). During the confrontation, a female not alleged to be De Mian, was heard shouting to Olsten's right. The parties disagree about what she said; De Mian contends the woman said “shut this mother***** down,” while Defendants claim she said “shoot this motherf******.” (SUMF at ¶ 34; DSUMF at ¶ 34; OSUMF at ¶ 34). Upon hearing the woman, Olsten immediately turned to his right and deployed his pepper spray into the crowd for a few seconds,[3] taking several steps towards Brandy and into the middle of the street and turning his body while he sprayed. (SUMF at ¶ 35; DSUMF at ¶ 36).

The record shows that when De Mian approached the area following the arrests, she shouted at the officers, twice asking them why they were “using a potentially lethal weapon” in reference to the tasing. (DSUMF at ¶ 122; De Mian video at 00:52-1:20). De Mian began to ask the question a third time but stopped mid-sentence. (De Mian video at 01:13-01:20). Although it is not clear from De Mian's video, it appears that she was hit by pepper spray at that time. Then, De Mian cursed at an unidentified officer and asked: “There was no dispersal order, why did you spray me? Why the f*** did you spray me?” (Id. at 1:45-1:51). De Mian's questions can be heard in the video that she recorded but cannot be heard in the recording of the confrontation between Brandy and Olsten. (Maverick video). At Olsten's deposition, De Mian's attorney asked him what else was occurring around the time of the altercation between Brandy and Olsten, and Olsten responded: “The crowd was angry. A lot of screaming, yelling.” (Olsten Deposition Doc. No. 93-4 at 74:24-25; 75:1). De Mian's counsel did not ask him if he heard De Mian. Id.

At the time of the verbal altercation between Brandy and Olsten, De Mian was located some 30 feet away from Olsten and 20 feet away from Brandy, near the sidewalk. (DSUMF at ¶¶ 36, 37; Maverick video at 1:58:14-2:00:01). She was sprayed as Olsten walked forward and turned his body. (DSUMF at ¶ 36). Olsten did not face De Mian while he was deploying the pepper spray. (Maverick Video at 1:56:03-2:00:21). Hayden was standing near Olsten with his back turned to the events and when Olsten began deploying the pepper spray. (SUMF at ¶ 40). He did not order Olsten to deploy the pepper spray. (SUMF at ¶ 38). There is no evidence that any of the protestors Olsten sprayed were arrested or detained during the incident.

Outcome:
For the reasons stated above, Defendants' motions for summary judgment will be granted in part and denied in part without prejudice. The motions will be granted with respect to De Mian's federal law claims in Counts I, II, III, and VII and denied without prejudice in all other respects. De Mian's federal law claims will be dismissed with prejudice. The Court will decline to exercise supplemental jurisdiction over De Mian's state law claims in in Counts IV, V, VI, VIII, and IX pursuant to 28 U.S.C. § 1367(c). Those claims will be dismissed without prejudice. The Court will also grant the City's motion to dismiss Olsten's crossclaim without prejudice.

Accordingly, IT IS HEREBY ORDERED that Defendant/Cross-Claimant William Olsten's Motion for Summary Judgment is GRANTED in part and DENIED in part without prejudice. The motion is granted as to Plaintiff Heather De Mian's federal law claims against Olsten in Counts I, II, and VII. These claims are DISMISSED with prejudice. The motion is denied without prejudice in all other respects. (Doc. No. 91).

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IT IS FURTHER ORDERED that Defendant/Cross-Defendant City of St. Louis Missouri and John Hayden's motion for summary judgment is GRANTED in part and DENIED in part without prejudice. The motion is granted as to Plaintiff Heather De Mian's federal law claims against Hayden and the City in Counts I, II, and III. These claims are DISMISSED with prejudice. The motion is denied without prejudice in all other respects. (Doc. No. 94).

IT IS FURTHER ORDERED that Defendant/Cross-Defendant City of St. Louis Missouri's Motion to Dismiss is GRANTED. Defendant/Cross Claimant William Olsten's Crossclaim is DISMISSED without prejudice. (Doc. No. 100).

IT IS FURTHER ORDERED that Plaintiff's remaining state law claims, Counts IV, V, VI, VIII, and IX are DISMISSED without prejudice.

IT IS FURTHER ORDERED that Defendants' Motion for Leave to File Exhibits Under Seal (filed regarding Exhibit R), as to which no objection has been filed, is GRANTED. (Doc. No. 119).

A separate Judgment in accordance with this Memorandum and Order is entered this same date.

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Defendant's Experts:

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