U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:17-cv-02455-MTS

Ahmad et al v. St. Louis, Missouri, City of Assigned to: District Judge Matthew T. Schelp Cause: 42:1983 Civil Rights Act

Date Filed: 09/22/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Maleeha S. Ahmad

represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101-1448 314-669-3420 Fax: 314-652-3112 Email: trothert@aclu-mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian R. Wilcox AMERICAN CIVIL LIBERTIES UNION OF MISSOURI 406 W. 34th St. Suite 420 Kansas City, MO 64111 816-470-9938 Email: gwilcox@aclu-mo.org ATTORNEY TO BE NOTICED

Jessie M. Steffan AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101-1448 314-652-3114 Email: jsteffan@aclu-mo.org ATTORNEY TO BE NOTICED

Plaintiff
Alison Dreith on behalf of themselves and a class of similarly situated individuals TERMINATED: 01/31/2018

Kayla DeLoach AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101-1448 813-802-8610 Email: kdeloach@aclu-mo.org ATTORNEY TO BE NOTICED
Molly E. Carney AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101-1448 314-669-3422 Email: mcarney@aclu-mo.org ATTORNEY TO BE NOTICED
Omri E. Praiss AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101-1448 314-652-3114 Email: opraiss@aclu-mo.org ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gillian R. Wilcox (See above for address) ATTORNEY TO BE NOTICED
Jessie M. Steffan (See above for address)

Plaintiff Brian Baude TERMINATED: 10/10/2018
Plaintiff W. Patrick Mobley

ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
Molly E. Carney (See above for address) ATTORNEY TO BE NOTICED
Omri E. Praiss (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie M. Steffan (See above for address) ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
Molly E. Carney (See above for address) ATTORNEY TO BE NOTICED
Omri E. Praiss (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie M. Steffan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Iris Maclean TERMINATED: 01/31/2018
Plaintiff Pamela Lewczuk

Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
Molly E. Carney (See above for address) ATTORNEY TO BE NOTICED
Omri E. Praiss (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
Molly E. Carney (See above for address) ATTORNEY TO BE NOTICED
Omri E. Praiss (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gillian R. Wilcox AMERICAN CIVIL LIBERTIES UNION OF MISSOURI 406 W. 34th St. Suite 420 Kansas City, MO 64111 816-470-9938 Fax: 314-612-3112

V. Defendant St. Louis, Missouri, City of

Email: gwilcox@aclu-mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessie M. Steffan (See above for address) ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
Molly E. Carney (See above for address) ATTORNEY TO BE NOTICED
represented by Robert H. Dierker ST. LOUIS CITY COUNSELORS OFFICE - 2 1200 Market Street Room 314 St. Louis, MO 63103 314-622-4378 Fax: 314-622-4956 Email: dierkerr@stlouis-mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. McDonnell ST LOUIS CITY COUNSELORS OFFICE 1200 Market Street #314 St. Louis, MO 63103 314-622-3361 Fax: 314-622-4956 Email: mcdonnellt@stlouis-mo.gov LEAD ATTORNEY
Abby J. Duncan ST. LOUIS CITY COUNSELORS OFFICE - 2

1200 Market Street Room 314 St. Louis, MO 63103 314-622-3361 Fax: 314-622-4956 Email: duncana@stlouis-mo.gov ATTORNEY TO BE NOTICED
Amy M. Raimondo ST LOUIS CITY COUNSELORS OFFICE 1200 Market Street #314 St. Louis, MO 63103 314-622-3361 Fax: 314-622-4956 Email: raimondoa@stlouis-mo.gov TERMINATED: 05/27/2021
Brandon D. Laird CITY OF ST. LOUIS - Market Street Law Department 1200 Market St. City Hall, Suite 314 St. Louis, MO 63103 816-889-5012 Fax: 816-889-5006 Email: lairdb@stlouis-mo.gov ATTORNEY TO BE NOTICED
Catherine Dierker CITY OF ST. LOUIS - Market Street Law Department 1200 Market St. City Hall, Suite 314 St. Louis, MO 63103 314-640-8353 Email: dierkerc@stlouis-mo.gov ATTORNEY TO BE NOTICED
H. Anthony Relys ATTORNEY GENERAL OF MISSOURI Old Post Office Building

Intervenor National Lawyers Guild 132 Nassau St., Ste. 922 New York, NY 10038 (212) 679-5100
V. Movant Michael A Faulk TERMINATED: 06/14/2018

P.O. Box 861 St. Louis, MO 63188 314-340-6816 Fax: 314-340-7957 Email: tony.relys@ago.mo.gov TERMINATED: 11/26/2018
Megan Kathleen G Bruyns SCHLICHTER BOGARD LLP Law Department 100 S. Fourth St. Suite 1200 St. Louis, MO 63102 314-621-6115 Fax: 314-621-7151 Email: mbruyns@uselaws.com TERMINATED: 05/27/2020
represented by Laurence D. Mass 230 S. Bemiston Avenue Suite 1200 Clayton, MO 63105 314-862-3333 Fax: 314-862-0605 Email: laurencedmass@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret E. Ellinger-Locke 2019 Sheridan St. Hyattsville, MD 20782 314-805-7335 Email: ellinger.locke@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John McCann Waldron ARCHCITY DEFENDERS 440 N. 4th St. Suite 390 St. Louis, MO 63102

314-361-8834 x1021 Fax: 314-925-1307 Email: jwaldron@archcitydefenders.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/22/2017
09/22/2017 09/22/2017 09/22/2017 09/22/2017 09/22/2017
09/25/2017
09/26/2017 09/28/2017

# Docket Text
1 COMPLAINT for prospective relief against defendant St. Louis, Missouri, City of with receipt number 0865-6157336, in the amount of $400 Non-Jury Demand,, filed by Maleeha S. Ahmad, Alison Dreith. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons)(Rothert, Anthony) (Entered: 09/22/2017)
2 NOTICE OF PROCESS SERVER by Plaintiffs Maleeha S. Ahmad, Alison Dreith Process Server: Katie Hinners (Rothert, Anthony) (Entered: 09/22/2017)
3 MOTION for Temporary Restraining Order by Plaintiffs Maleeha S. Ahmad, Alison Dreith. (Rothert, Anthony) (Entered: 09/22/2017)
4 MEMORANDUM in Support of Motion re 3 MOTION for Temporary Restraining Order filed by Plaintiffs Maleeha S. Ahmad, Alison Dreith. (Rothert, Anthony) (Entered: 09/22/2017)
Case Opening Notification: 1 Summons(es) issued. The summons was emailed to attorney Anthony Rothert. Judge Assigned: Honorable Ronnie L. White. (JWD) (Entered: 09/22/2017)
5 Docket Text ORDER: IT IS HEREBY ORDERED that the Court will hold a hearing on Plaintiffs' Motion for Preliminary Injunction on Thursday, October 5, 2017 at 1:00 p.m. in Courtroom 10S. Signed by District Judge Ronnie L. White on 9/22/17. (JEB) (Entered: 09/22/2017)
6 ORDER : IT IS HEREBY ORDERED that the parties shall file the following documents no later than 9:00 a.m. on Tuesday, October 3, 2017 [SEE ORDER FOR COMPLETE DETAILS]. Signed by District Judge Ronnie L. White on 09/25/2017. (KCB) (Entered: 09/25/2017)
7 ENTRY of Appearance by Jessie M. Steffan for Plaintiffs Maleeha S. Ahmad, Alison Dreith. (Steffan, Jessie) (Entered: 09/26/2017)
8 ENTRY of Appearance by Gillian R. Wilcox for Plaintiffs Maleeha S. Ahmad, Alison Dreith. (Wilcox, Gillian) (Entered: 09/28/2017)

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9 AMENDED COMPLAINT against defendant St. Louis, Missouri, City of already issued Summons(es) issued, Waivers issued n/a, Consents issued n/a, non-jury demand, , filed by Maleeha S. Ahmad, Alison Dreith, Brian Baude, W. Patrick Mobley, Iris Maclean.(Rothert, Anthony) (Entered: 09/28/2017)
10 MOTION for Preliminary Injunction by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 09/28/2017)
11 MEMORANDUM in Support of Motion re 10 MOTION for Preliminary Injunction filed by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X)(Rothert, Anthony) (Entered: 09/28/2017)
12 Exhibit List Exhibits attached to memorandum in support of motion for preliminary injunction by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 09/28/2017)
13 NOTICE of Filing Exhibit with the Clerk's Office in DVD format by Plaintiff Maleeha S. Ahmad re 11 Memorandum in Support of Motion Exhibits E, F, L, and O. (Rothert, Anthony) Modified on 10/16/2017 (CBL). (Entered: 09/28/2017)
14 ENTRY of Appearance by Thomas R. McDonnell for Defendant St. Louis, Missouri, City of. (McDonnell, Thomas) (Entered: 09/29/2017)
15 MOTION to Continue by Defendant St. Louis, Missouri, City of. (McDonnell, Thomas) (Entered: 09/29/2017)
16 MEMORANDUM in Support of Motion re 15 MOTION to Continue filed by Defendant St. Louis, Missouri, City of. (McDonnell, Thomas) (Entered: 09/29/2017)
17 Docket Text ORDER: IT IS HEREBY ORDERED that Defendant City of St. Louis' Motion to Continue (ECF No. 15) is GRANTED. The Court will hold a hearing in Courtroom 10S on Plaintiffs' Motion for Preliminary Injunction on October 16, 2017 at 10:00 a.m. The parties shall file the documents outlined by the Court in ECF No. 6 no later than Thursday, October 12, 2017 at 9:00 a.m. Signed by District Judge Ronnie L. White on 9/29/17. (JEB) (Entered: 09/29/2017)

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10/11/2017

18 *** Duplicate Entry - NOTICE of filing Exhibits by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. See Document 13 . Modified on 10/16/2017 (CBL). (Entered: 09/29/2017)
19 EXHIBITS Received: Exhibits E, F, L, and O re: 11 MEMORANDUM in Support of 10 MOTION for Preliminary Injunction by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. See 13 Notice of Filing Exhibit. Exhibits received in DVD format. Modified on 10/16/2017 (CBL). (Entered: 09/29/2017)
20 MOTION to Certify Class by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/05/2017)
21 MEMORANDUM in Support of Motion re 20 MOTION to Certify Class filed by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Attachments: # 1 Exhibit)(Rothert, Anthony) (Entered: 10/05/2017)
22 ENTRY of Appearance by H. Anthony Relys for Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/06/2017)
23 MOTION for Extension of Time to File Response/Reply to Plaintiffs' motion for preliminary injunction by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/10/2017)
24 RESPONSE to Motion re 23 MOTION for Extension of Time to File Response/Reply to Plaintiffs' motion for preliminary injunction filed by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/10/2017)
25 MEMORANDUM in Support of Motion re 23 MOTION for Extension of Time to File Response/Reply to Plaintiffs' motion for preliminary injunction filed by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/11/2017)
26 Docket Text ORDER: IT IS HEREBY ORDERED that Defendant City of St. Louis's Motion for Extension of Time to File Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction (ECF No. 23) is GRANTED until October 12, 2017 at 9:00 a.m. Signed by District Judge Ronnie L. White on 10/11/17. (JEB) (Entered: 10/11/2017)
27 RESPONSE TO COURT ORDER re 6 Order (Joint Statement of the Case and the Issues) by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 10/11/2017)

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28 AFFIDAVIT re 11 Memorandum in Support of Motion,, declaration of Elyssa Sullivan by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 10/11/2017)
29 AFFIDAVIT re 11 Memorandum in Support of Motion,, declaration of Heather De Mian by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 10/11/2017)
30 NOTICE of Filing Exhibit with the Clerk's Office in DVD format by Plaintiff Maleeha S. Ahmad re 29 Affidavit (Rothert, Anthony) Modified on 10/16/2017 (CBL). (Entered: 10/11/2017)
31 SUMMONS Returned Executed filed by W. Patrick Mobley, Maleeha S. Ahmad, Iris Maclean, Brian Baude, Alison Dreith. St. Louis, Missouri, City of served on 9/28/2017, answer due 10/19/2017. (Rothert, Anthony) (Entered: 10/11/2017)
32 Proposed Findings of Fact by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Attachment Witness List, # 2 Attachment Exhibit List)(McDonnell, Thomas) (Entered: 10/12/2017)
33 MEMORANDUM in Opposition re 10 MOTION for Preliminary Injunction filed by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit Exhibit 1 - Baumgartner Declaraton, # 2 Exhibit Exhibit E - Templeton Settlement, # 3 Exhibit Exhibit F Karnowski Declaration, # 4 Exhibit Exhibit G - Sachs Declaration, # 5 Exhibit Exhibit H - Jemerson Declaration, # 6 Exhibit Exhibit I Rossomanno Declaration, # 7 Exhibit Exhibit J - Boyher Declaration)(Relys, H.) (Entered: 10/12/2017)
34 RESPONSE TO COURT ORDER re 6 Order statement of undisputed facts by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/12/2017)
35 Exhibit List for preliminary injunction hearing by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/12/2017)
36 WITNESS LIST by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/12/2017)
37 Proposed Findings of Fact by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/12/2017)

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38 MOTION for Extension of Time to File Response/Reply to Plaintiffs' motion for class certification by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/12/2017)
39 Docket Text ORDER: IT IS HEREBY ORDERED that Defendant City of St. Louis's Motion for Extension of Time to File Memorandum in Opposition to Plaintiffs' Motion for Class Certification (ECF No. 38) is GRANTED until November 13, 2017. Signed by District Judge Ronnie L. White on 10/12/17. (JEB) (Entered: 10/12/2017)
40 MOTION to Disqualify Judge by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/13/2017)
41 MOTION to Continue hearing on Plaintiffs' motion for preliminary injunction by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/13/2017)
42 ORDER IT IS HEREBY ORDERED that Plaintiffs' Motion to Recuse (ECF No. 40 ) is GRANTED. IT IS FURTHER ORDERED that the undersigned United States District Judge is disqualified from handling any matters in this case, and the Clerk of Court shall randomly reassign the case to another judge. Signed by District Judge Ronnie L. White on 10/13/17. (KXS) (Entered: 10/13/2017)
43 REASSIGNMENT ORDER (GJL). Pursuant to the order of recusal by the Honorable Ronnie L. White on October 13, 2017, IT IS HEREBY ORDERED that the above styled cause is reassigned to the Honorable Catherine D. Perry. (KXS) (Entered: 10/13/2017)
44 ORDER - IT IS HEREBY ORDERED that the defendant's motion to continue 41 is granted and the hearing on plaintiffs motion for preliminary injunction is reset to Wednesday, October 18, 2017 at 9:00 a.m. in Courtroom 14-South. ( Motion Hearing set for 10/18/2017 09:00 AM in Courtroom 14S before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on October 13, 2017. (MCB) (Entered: 10/13/2017)
45 EXHIBITS Received: Attachment to ECF 29 by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. See 30 Notice of Filing Exhibit. Exhibit received in DVD format.(CBL) (Entered: 10/16/2017)
46 MOTION to Exclude from the courtroom all actual and potential nonparty witnesses during the proceedings in this case other than the period of actual testimony by each witness by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 10/17/2017)

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47 ENTRY of Appearance by Omri E. Praiss for Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Praiss, Omri) (Entered: 10/17/2017)
48 Minute Order. Proceedings held before District Judge Catherine D. Perry: Parties present for hearing on Plaintiffs' Motion for Preliminary Injunction 10 . Motion 46 to Exclude Witnesses from the Courtroom before testimony is Granted. Witnesses heard. Exhibits admitted. Proceeding to continue on Thursday, October 19, 2017 at 12:00 p.m. (Court Reporter Gayle Madden.) (CBL) (Entered: 10/19/2017)
49 Minute Entry for proceedings held before District Judge Catherine D. Perry: Motion Hearing held on 10/19/2017 re 10 MOTION for Preliminary Injunction filed by Maleeha S. Ahmad, W. Patrick Mobley, Brian Baude, Alison Dreith, Iris Maclean. Testimony heard. Proceedings to continue on Monday, October 23, 2017 at 8:30 a.m. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314-244-7987) (FTR Gold: No) (MCB) (Main Document 49 replaced on 10/25/2017) (MCB). (Entered: 10/19/2017)
50 Docket Text ORDER: As discussed with counsel yesterday, IT IS HEREBY ORDERED that defendant's time to respond to the Amended Complaint is extended to 10/26/17.. Signed by District Judge Catherine D. Perry on 10/20/17. (CDP) (Entered: 10/20/2017)
51 Minute Entry for proceedings held before District Judge Catherine D. Perry: Motion Hearing held on 10/23/2017 re 10 MOTION for Preliminary Injunction filed by Maleeha S. Ahmad, W. Patrick Mobley, Brian Baude, Alison Dreith, Iris Maclean. Parties present for Cont'd hearing on Plaintiffs' Motion for Preliminary Injunction 10 . The parties agree that the Court may consider affidavits filed in the case which were not admitted at the hearing, with the caveat that they are not subject to cross examination. Testimony resumed and concluded. Exhibits rec'd. Arguments of counsel heard. Matter taken under submission. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314-244-7987) (FTR Gold: No) (MCB) (Main Document 51 replaced on 10/25/2017) (MCB). (Entered: 10/23/2017)
52 CLERKS WITNESS LIST as to Preliminary Injunction Hearing held October 18, 19 and 23, 2017. (MCB) (Entered: 10/23/2017)
53 CLERKS Exhibit List as to Preliminary Injunction Hearing held October 18, 19 and 23, 2017. (MCB) (Entered: 10/23/2017)
54 RESPONSE TO COURT ORDER Proposed Form of Preliminary Injunction by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison

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Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 10/24/2017)
55 ANSWER to 9 Amended Complaint, by St. Louis, Missouri, City of.(Relys, H.) (Entered: 10/26/2017)
56 MEMORANDUM in Opposition re 20 MOTION to Certify Class filed by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 11/13/2017)
57 MEMORANDUM AND ORDER OF PRELIMINARY INJUNCTION. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for preliminary injunction 10 is granted and defendant City of St. Louis and its agents, servants, employees, and representatives will not enforce any rule, policy, or practice that grants law enforcement officials the authority or discretion to: 1) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 when the persons against whom it would be enforced are engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence; 2) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 or enforce St. Louis Code of Ords. §17.16.275(A) and (E) for the purpose of punishing persons for exercising their constitutional rights to engage in expressive activity; 3) Use chemical agents, including, but not limited to, mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances (collectively "chemical agents"), whatever the method of deployment, against any person engaged in expressive, nonviolent activity in the City of St. Louis, in the absence of probable cause to arrest the person and without first issuing clear and unambiguous warnings that the person is subject to arrest and such chemical agents will be used and providing the person sufficient opportunity to heed the warnings and comply with lawful law enforcement commands or as authorized in paragraph 5 below; 4) Use or threaten to use chemical agents, whatever the method of deployment, against any person engaged in expressive, non-violent activity in the City of St. Louis, for the purpose of punishing the person for exercising constitutional rights; and 5) Issue orders or use chemical agents, whatever the method of deployment, for the purpose of dispersing person(s) engaged in expressive, non-violent activity in the City of St. Louis without first: specifying with reasonable particularity the area from which dispersal is ordered; issuing audible and unambiguous orders in a manner designed to notify all persons within the area that dispersal is required and providing sufficient warnings of the consequences of failing to disperse, including, where applicable, that chemical agents will be used; providing a sufficient and announced

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amount of time which is proximately related to the issuance of the dispersal order in which to heed the warnings and exit the area; and announcing and ensuring a means of safe egress from the area that is actually available to all person(s); Provided, however, that paragraphs (3) and (5) above do not apply to situations where persons at the scene present an imminent threat of violence or bodily harm to persons or damage to property, or where law enforcement officials must defend themselves or other persons or property against imminent threat of violence. IT IS FURTHER ORDERED that this preliminary injunction becomes effective upon plaintiffs' posting security in the amount of $100 with the Clerk of Court, and remains in effect until further order of this Court. A separate Preliminary Injunction in accord with this Memorandum and Order is entered this date, as is a separate order referring this case to mediation. Signed by District Judge Catherine D. Perry on 11/15/2017. (CBL) (Entered: 11/15/2017)
58 ORDER OF PRELIMINARY INJUNCTION. (See Full Order.) Signed by District Judge Catherine D. Perry on 11/15/2017. (CBL) (Entered: 11/15/2017)
59 ORDER REFERRING CASE to Alternative Dispute Resolution. (See Full Order.) This case is referred to: Mediation. Designation of Lead Counsel: Anthony E. Rothert. ADR Completion Deadline due by 2/1/2018. ADR Compliance Report Deadline due by 2/15/2018. Designation of Neutral/Conference Report due by 12/15/2017. Signed by District Judge Catherine D. Perry on 11/15/2017. (CBL) (Entered: 11/15/2017)
Receipt 4644068538 in the amount of $100.00 for COMM REGOTHER-BOND-COLB on behalf of ACLU of Missouri Foundation (CCAM) (Entered: 11/16/2017)
60 Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Certify Class by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Rothert, Anthony) (Entered: 11/17/2017)
61 Docket Text ORDER: Re: 60 Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Certify Class by Plaintiffs. ORDERED: GRANTED. Signed by District Judge Catherine D. Perry on 11/20/2017. (CBL) (Entered: 11/20/2017)
62 TRANSCRIPT of 48 (PRELIMINARY INJUNCTION HEARING VOLUME 1) held on October 18, 2017. before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314-244-7987. Transcript may be viewed at the court public terminal or purchased through the Court

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Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/11/2017. Redacted Transcript Deadline set for 12/21/2017. Release of Transcript Restriction set for 2/20/2018. (CBL) (Entered: 11/20/2017)
63 TRANSCRIPT of 49 (PRELIMINARY INJUNCTION HEARING VOLUME 2) held on October 19, 2017 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314-244-7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/11/2017. Redacted Transcript Deadline set for 12/21/2017. Release of Transcript Restriction set for 2/20/2018. (CBL) (Entered: 11/20/2017)
64 TRANSCRIPT of 51 (PRELIMINARY INJUNCTION HEARING VOLUME 3) held on 10/23/17 before Judge Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314-244-7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/13/2017. Redacted Transcript Deadline set for 12/26/2017. Release of Transcript Restriction set for 2/20/2018. (EAB) (Entered: 11/22/2017)
65 EXHIBITS Received: Plaintiff's Exhibit from Preliminary Injunction : Exhibits 1, 2, 3, 4, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51 (located in a three ringed binder), DVD's marked Ex. 5, 6 & 7, 8, 9 & 10, 14, 52 & 53 by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (All exhibits are located in the fileroom.)(MCB) (Entered: 12/01/2017)
66 REPLY to Response to Motion re 20 MOTION to Certify Class filed by Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Iris Maclean, W. Patrick Mobley. (Attachments: # 1 Order - Hussein v. County of St. Louis)(Rothert, Anthony) (Entered: 12/04/2017)
67 Consent MOTION for Leave to designate a neutral not on the list of certified neutrals maintained by the Court by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 12/08/2017)
68 Docket Text ORDER: Re: 67 Consent MOTION for Leave to designate a neutral not on the list of certified neutrals ; ORDERED GRANTED.

12/11/2017 12/15/2017 01/30/2018 01/31/2018
02/01/2018
02/15/2018 02/16/2018
02/28/2018 03/01/2018

Signed by District Judge Catherine D. Perry on 12/11/17. (CDP) (Entered: 12/11/2017)
69 NOTICE of Appointment of Neutral. Neutral name: Goldman, Roger L. Neutral selected by Parties. (Notice emailed to Neutral Roger Goldman on 12/11/17).(EAB) (Entered: 12/11/2017)
70 Designation of Neutral by parties and ADR Conference Report by Plaintiff Maleeha S. Ahmad Neutral: Goldman, Ronald Date of Conference: January 10, 2018 time: 9:00 a.m. Location: Saint Louis University School of Law(Rothert, Anthony) (Entered: 12/15/2017)
71 Consent MOTION to Dismiss Party (Plaintiffs Alison Dreith and Iris Maclean) by Plaintiffs Alison Dreith, Iris Maclean. (Rothert, Anthony) (Entered: 01/30/2018)
72 Docket Text ORDER: Re: 71 Consent MOTION to Dismiss Party (Plaintiffs Alison Dreith and Iris Maclean); ORDERED GRANTED, claims of plaintiffs Alison Dreith and Iris Maclean only are dismissed without prejudice. Signed by District Judge Catherine D. Perry on 1/31/18. (CDP) (Entered: 01/31/2018)
73 ADR COMPLIANCE REPORT by Neutral: Goldman, Roger L.; The parties have elected to extend the completion deadline 14 days and will continue efforts to assist the parties in reaching a settlement. ADR Completion Deadline due by 2/15/2018. ADR Compliance Report Deadline due by 3/1/2018.(EAB) (Entered: 02/01/2018)
74 Consent MOTION for Extension of Time to Complete Mediation by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 02/15/2018)
75 Docket Text ORDER: Re: 74 Consent MOTION for Extension of Time to Complete Mediation by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) filed by Maleeha S. Ahmad ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 2/16/18. (CDP) (Entered: 02/16/2018)
76 Second MOTION for Extension of Time to Complete Mediation through March 16, 2018 by Plaintiffs Maleeha S. Ahmad, Brian Baude, W. Patrick Mobley. (Rothert, Anthony) (Entered: 02/28/2018)
77 Docket Text ORDER: Re: 76 Second MOTION for Extension of Time to Complete Mediation through March 16, 2018 by Plaintiffs Maleeha S. Ahmad, Brian Baude, W. Patrick Mobley. ORDERED: GRANTED. Signed by District Judge Catherine D. Perry on 3/1/2018. (CBL) (Entered: 03/01/2018)

03/12/2018 03/14/2018
04/27/2018 05/04/2018
05/04/2018
06/13/2018 06/13/2018 06/14/2018 07/30/2018

78 ORDER SETTING RULE 16 CONFERENCE. This case is assigned to Track: 2. Joint Scheduling Plan due by 4/27/2018. Rule 16 Conference set for 5/4/2018 12:30 PM in Chambers before District Judge Catherine D. Perry. Signed by District Judge Catherine D. Perry on 3/12/18. (EAB) (Entered: 03/12/2018)
79 ADR COMPLIANCE REPORT by Neutral: Roger Goldman. The parties have elected to extend the completion deadline to May 10, 2018 (as discussed with Judge Perry by the attorneys) and will continue efforts to assist the parties in reaching a settlement. ADR Completion Deadline due by 5/10/2018. ADR Compliance Report Deadline due by 5/24/2018.(MCB) (Entered: 03/14/2018)
80 JOINT SCHEDULING PLAN by Plaintiff Maleeha S. Ahmad. . (Rothert, Anthony) (Entered: 04/27/2018)
81 CASE MANAGEMENT ORDER (See Full Order) This case is assigned to Track: 3. Motion to Join Parties due by 7/30/2018. Discovery Completion due by 4/29/2019. Non-Dispositive Motions due by 5/6/2019. Dispositive Motions due by 4/29/2019. Pretrial Compliance due by 8/6/2019. Motion in Limine due by 8/16/2019. Bench Trial set for 8/26/2019 08:30 AM in Courtroom 14S before District Judge Catherine D. Perry. Signed by District Judge Catherine D. Perry on 5/4/18. (EAB) (Entered: 05/04/2018)
82 ORDER REFERRING CASE to Alternative Dispute Resolution. This case is referred to: Mediation. Designation of Lead Counsel: Anthony Rothert. ADR Completion Deadline due by 6/1/2019. ADR Compliance Report Deadline due by 6/15/2019. Designation of Neutral/Conference Report due by 4/21/2019. Signed by District Judge Catherine D. Perry on 5/4/18. (EAB) (Entered: 05/04/2018)
83 MOTION to Consolidate Cases Consolidate with higher case number 4:18-cv-308 by Plaintiff Michael A Faulk. (Waldron, John) (Entered: 06/13/2018)
84 MEMORANDUM in Support of Motion re 83 MOTION to Consolidate Cases Consolidate with higher case number 4:18-cv-308 filed by Plaintiff Michael A Faulk. (Waldron, John) (Entered: 06/13/2018)
85 MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion to consolidate the instant case with Case Number 4: 18 CV 308 JCH 83 is denied. Signed by District Judge Catherine D. Perry on June 14, 2018. (MCB) (Entered: 06/14/2018)
86 Joint MOTION to Amend/Correct 81 Case Management Order, To Postpone Two Deadlines Three Weeks by Plaintiffs Maleeha S. Ahmad,

07/31/2018 08/20/2018 09/05/2018
09/05/2018 09/20/2018 09/20/2018 09/27/2018 10/04/2018

Brian Baude, W. Patrick Mobley. (Steffan, Jessie) (Entered: 07/30/2018)
87 Docket Text ORDER: Re: 86 Joint MOTION to Amend/Correct 81 Case Management Order, To Postpone Two Deadlines Three Weeks ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 7/31/18. (CDP) (Entered: 07/31/2018)
88 MOTION for Leave to file second amended complaint by Plaintiffs Maleeha S. Ahmad, Brian Baude, W. Patrick Mobley. (Attachments: # 1 proposed second amended complaint)(Rothert, Anthony) (Entered: 08/20/2018)
89 MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion for leave to file second amended complaint 88 is granted, and the second amended complaint is deemed filed as of this date. IT IS FURTHER ORDERED that the motion to certify class 20 directed to the amended complaint is denied without prejudice as moot, and plaintiffs shall file their motion and supporting memorandum to certify the proposed class set out in the second amended complaint by no later than January 4, 2019, or the class allegations will be stricken from the complaint without further notice by the Court. Defendant shall file any opposition to class certification by no later than February 1, 2019, and plaintiffs may file any reply brief in support of class certification by no later than February 11, 2019. Signed by District Judge Catherine D. Perry on September 5, 2018. (MCB) (Entered: 09/05/2018)
90 SECOND AMENDED COMPLAINT FOR PROSPECTIVE RELIEF against defendant St. Louis, Missouri, City of Amendment to 9 Amended Complaint,, filed by W. Patrick Mobley, Maleeha S. Ahmad, Brian Baude. Related document: 9 Amended Complaint, filed by Maleeha S. Ahmad, W. Patrick Mobley, Brian Baude, Alison Dreith, Iris Maclean.(MCB) (Entered: 09/05/2018)
91 MOTION to Dismiss : claims of Brian Baude only by Plaintiff Brian Baude. (Rothert, Anthony) (Entered: 09/20/2018)
92 MOTION to Add Party by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 09/20/2018)
93 RESPONSE to Motion re 91 MOTION to Dismiss : claims of Brian Baude only, 92 MOTION to Add Party filed by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 09/27/2018)
94 REPLY to Response to Motion re 91 MOTION to Dismiss : claims of Brian Baude only, 92 MOTION to Add Party filed by Plaintiff Maleeha

S. Ahmad. (Attachments: # 1 Exhibit)(Rothert, Anthony) (Entered: 10/04/2018)

10/10/2018

95 MEMORANDUM AND ORDER (See Full Order)IT IS HEREBY ORDERED that the motion to dismiss the claims of Brian Baude without prejudice 91 is granted. IT IS FURTHER ORDERED that the motion to add party 92 is granted, and Pamela Lewczuk is added to the second amended complaint and the docket sheet as a named plaintiff in this case. IT IS FURTHER ORDERED that defendant is reminded that its Answer to the Second Amended Complaint was due some time ago and has not been filed. Signed by District Judge Catherine D. Perry on 10/10/18. (EAB) (Entered: 10/10/2018)

10/12/2018 96 Consent MOTION for Leave to File Answer Out of Time by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 10/12/2018)

10/15/2018

97 Docket Text ORDER: Re 96 Consent MOTION for Leave to File Answer Out of Time by Defendant City of St. Louis, Missouri; ORDERED GRANTED. (Answer due by 10/15/18). Signed by District Judge Catherine D. Perry on 10/15/18. (EAB) (Entered: 10/15/2018)

10/15/2018 98 ANSWER to 90 Amended Complaint, by St. Louis, Missouri, City of.(Relys, H.) (Entered: 10/15/2018)

11/21/2018

99 MOTION to Withdraw as Attorney ;attorney/firm H. Anthony Relys by Defendant St. Louis, Missouri, City of. (Relys, H.) (Entered: 11/21/2018)

11/26/2018

100 Docket Text ORDER: Re: 99 MOTION to Withdraw as Attorney ;attorney/firm H. Anthony Relys by Defendant St. Louis, Missouri, City of. ORDERED: Motion is Granted. Attorney H. Anthony Relys terminated. Signed by District Judge Catherine D. Perry on 11/26/2018. (CBL) (Entered: 11/26/2018)

11/28/2018 101 ENTRY of Appearance by Robert H. Dierker for Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 11/28/2018)

11/30/2018

102 Joint MOTION for Extension of: deadline for disclosure of expert witnesses by plaintiffs and for filing and briefing of motion for class certification by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 11/30/2018)

12/03/2018

103 AMENDED CASE MANAGEMENT ORDER. For good cause shown, IT IS HEREBY ORDERED that the joint motion to amend the case management order 102 is granted, and the following amended schedule shall apply in this case and will be modified only upon a showing of exceptional circumstances: 1) Plaintiff shall disclose all expert

witnesses and shall provide the reports required by Rule 26(a)(2), Fed. R. Civ. P., no later than January 25, 2019, and shall make expert witnesses available for depositions, and have depositions completed, no later than February 8, 2019; and 2) Plaintiffs shall file their motion and supporting memorandum to certify the proposed class set out in the second amended complaint by no later than February 1, 2019, or the class allegations will be stricken from the complaint without further notice by the Court. Defendant shall file any opposition to class certification by no later than February 22, 2019, and plaintiffs may file any reply brief in support of class certification by no later than March 1, 2019. All other deadlines not specifically amended above remain in full force and effect. Failure to comply with any part of this order may result in the imposition of sanctions. Signed by District Judge Catherine D. Perry on 12/3/2018. (CBL) (Entered: 12/03/2018)

12/21/2018 104 ENTRY of Appearance by Abby J. Duncan for Defendant St. Louis, Missouri, City of. (Duncan, Abby) (Entered: 12/21/2018)

12/21/2018 105 ENTRY of Appearance by Amy M. Raimondo for Defendant St. Louis, Missouri, City of. (Raimondo, Amy) (Entered: 12/21/2018)

01/02/2019 106 ENTRY of Appearance by Megan Kathleen G Bruyns for Defendant St. Louis, Missouri, City of. (Bruyns, Megan) (Entered: 01/02/2019)

01/17/2019 107 MOTION for Protective Order by Plaintiff Maleeha S. Ahmad. (Attachments: # 1 Text of Proposed Order)(Rothert, Anthony) (Entered: 01/17/2019)

01/17/2019

108 PROTECTIVE ORDER re: 107 MOTION for Protective Order filed by Plaintiff Maleeha S. Ahmad.ORDERED: Motion is GRANTED. Signed by District Judge Catherine D. Perry on January 17, 2019. (MCB) (Entered: 01/17/2019)

01/28/2019 109 ENTRY of Appearance by Brandon D. Laird for Defendant St. Louis, Missouri, City of. (Laird, Brandon) (Entered: 01/28/2019)

02/01/2019 110 Second MOTION to Certify Class by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 02/01/2019)

02/01/2019

111 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 proposed memorandum in support of motion for class certification, # 2 Ex 1 to proposed memorandum in support of motion for class certification, Indictment USA v Boone, # 3 Ex 2 to proposed memorandum in support of motion for class certification, amended affidavit of Darren S. Boehlje, # 4 Ex 3 to proposed

memorandum in support of motion for class certification, excerpts from deposition of Jerome Baumgartner, # 5 Ex 4 to proposed memorandum in support of motion for class certification, excepts from Boyher deposition, # 6 Ex 5 to proposed memorandum in support of motion for class certification, excerpts from Karnowski deposition, # 7 Ex 6 to proposed memorandum in support of motion for class certification, excepts from Joseph Mader deposition, # 8 Ex 7 proposed memorandum in support of motion for class certification, excerpts of Randy Hays deposition)(Rothert, Anthony) (Entered: 02/01/2019)

02/04/2019

112 Docket Text ORDER: Re: 111 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Maleeha S. Ahmad, et al. ; ORDERED: Motion is GRANTED. Signed by District Judge Catherine D. Perry on February 4, 2019. (MCB) (Entered: 02/04/2019)

02/04/2019

113 MEMORANDUM in Support of Motion re 110 Second MOTION to Certify Class filed by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 Exhibit 1 - Indictment, # 2 Exhibit 2 - Affidavit of Darren Boehlje, # 3 Exhibit 3 - Deposition of Jerome Baumgartner, # 4 Exhibit 4 - Deposition of Scott Boyher, # 5 Exhibit 4 - Deposition of Matthew Karnowoski, # 6 Exhibit 6 Deposition of Joseph Mader, # 7 Exhibit 7 - Deposition of Randy Hays)(MCB) (Entered: 02/04/2019)

02/15/2019 114 Consent MOTION for Protective Order by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 02/15/2019)

02/22/2019

115 MEMORANDUM in Opposition re 110 Second MOTION to Certify Class filed by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 02/22/2019)

02/26/2019 116 Docket Text ORDER: Re: 114 Consent MOTION for Protective Order ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 2/26/19. (CDP) (Entered: 02/26/2019)

03/01/2019

117 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 proposed reply, # 2 Ex. 8 to proposed reply, excerpts from deposition of P. Lewczuk)(Rothert, Anthony) (Entered: 03/01/2019)

03/04/2019

118 Docket Text ORDER: Re: 117 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 proposed reply, # 2 Ex. 8 to proposed reply, excerpts from deposition of P. Lewczuk)(Rothert, Anthony) filed by Pamela Lewczuk, Maleeha S. Ahmad, W. Patrick Mobley ; ORDERED GRANTED. (On behalf of Judge Catherine D.

Perry) Signed by District Judge Rodney W. Sippel on 3/4/2019. (NEP) (Entered: 03/04/2019)

03/04/2019

119 REPLY to Response to Motion re 110 Second MOTION to Certify Class filed by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 Exhibit 8)(EAB) (Entered: 03/05/2019)

03/08/2019 120 MOTION for Protective Order to preclude depositions by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 03/08/2019)

03/08/2019 121 MEMORANDUM in Support of Motion re 120 MOTION for Protective Order to preclude depositions filed by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 03/08/2019)

03/11/2019

122 MEMORANDUM in Opposition re 120 MOTION for Protective Order to preclude depositions and request for expedited consideration filed by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 Exhibit Ex 1 - Excerpts of Incident Report, # 2 Exhibit Ex 2 - Excerpts of Testimony)(Rothert, Anthony) (Entered: 03/11/2019)

03/12/2019

123 MEMORANDUM AND ORDER. Having fully considered the respective positions of the parties, IT IS HEREBY ORDERED that the motion for protective order 120 is denied. Signed by District Judge Catherine D. Perry on 3/12/2019. (CBL) (Entered: 03/12/2019)

03/21/2019 124 Consent MOTION for Protective Order by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Text of Proposed Order proposed consent order)(Dierker, Robert) (Entered: 03/21/2019)

03/22/2019

125 PROTECTIVE ORDER re: 124 Consent MOTION for Protective Order filed by Defendant St. Louis, Missouri, City of ; So Order. Signed by District Judge Catherine D. Perry on March 22, 2019. (MCB) (Entered: 03/22/2019)

03/29/2019

126 MOTION to Dismiss Case and dissolve preliminary injunction by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit A.Catalog protest activity, # 2 Exhibit B.Operations order, # 3 Exhibit C.Flash drive video to be filed, # 4 Exhibit D.DVD video to be filed, # 5 Exhibit E.DVD video to be filed, # 6 Exhibit F.DVD video to be filed, # 7 Exhibit G.External drive to be filed, # 8 Affidavit H.McLaughlin declaration, # 9 Affidavit I.Wall declaration, # 10 Exhibit J.Injury reports, # 11 Exhibit K.Golden depo., # 12 Exhibit L.Ahmad depo., # 13 Exhibit M.Mobley depo., # 14 Exhibit N.Lewczuk depo., # 15 Exhibit O.Jemerson depo., # 16 Exhibit P.Boyher depo., # 17 Exhibit Q.Wyms depo., # 18 Exhibit

R.Karnowski depo., # 19 Exhibit S.West depo., # 20 Exhibit T.Baumgartner depo., # 21 Exhibit Baumgartner depo. Ex. 1, # 22 Exhibit Baumgartner depo. Ex. 2, # 23 Exhibit U.Chance depo., # 24 Exhibit Chance depo. Ex. 1, # 25 Exhibit Chance depo. Ex. 2, # 26 Exhibit Chance depo. Ex. 3, # 27 Exhibit Chance depo. Ex. 4, # 28 Exhibit Chance depo. Ex. 5, # 29 Exhibit Chance depo. Ex. 6, # 30 Exhibit Chance depo. Ex. 7, # 31 Exhibit Chance depo. Ex. 8, # 32 Exhibit Chance depo. Ex. 9, # 33 Exhibit Chance depo. Ex. 10, # 34 Exhibit Chance depo. Ex. 11, # 35 Exhibit Chance depo. Ex. 12, # 36 Exhibit V.Page/Walton video, # 37 Exhibit W.Becherer depo.)(Dierker, Robert) (Entered: 03/29/2019)

03/29/2019

127 MOTION for Leave to File in Excess of Page Limitation by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Attachment Proposed memorandum in support of motion to dissolve/dismiss)(Dierker, Robert) (Entered: 03/29/2019)

03/29/2019

128 NOTICE of Exhibits provided to plaintiff's re 126 MOTION to Dismiss Case and dissolve preliminary injunction notice of filing exhibits by Defendant St. Louis, Missouri, City of. (Dierker, Robert) Modified on 4/1/2019 (EAB). (Entered: 03/29/2019)

03/29/2019

139 EXHIBITS Received: C, V, D, E, F, and G by Defendant St. Louis, Missouri, City of.. Exhibits consisting of flash drive, DVD's and external drive placed in expansion folder and located in the Clerk's Office fileroom.(MCB) (Entered: 04/02/2019)

04/01/2019

129 MOTION to Seal Document 126 MOTION to Dismiss Case and dissolve preliminary injunction as to certain exhibits by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 04/01/2019)

04/01/2019 130 First MOTION to Intervene by Intervenor National Lawyers Guild. (Ellinger-Locke, Margaret) (Entered: 04/01/2019)

04/01/2019 131 First MOTION to Quash Keith Rose Subpoena by Intervenor National Lawyers Guild. (Ellinger-Locke, Margaret) (Entered: 04/01/2019)

04/01/2019 132 First MOTION to Quash Scott Kampas Subpoena by Intervenor National Lawyers Guild. (Ellinger-Locke, Margaret) (Entered: 04/01/2019)

04/01/2019

133 MEMORANDUM in Support of Motion re 132 First MOTION to Quash Scott Kampas Subpoena, 131 First MOTION to Quash Keith Rose Subpoena filed by Intervenor National Lawyers Guild. (EllingerLocke, Margaret) (Entered: 04/01/2019)

04/01/2019

134 Docket Text ORDER: Re: 127 MOTION for Leave to File in Excess of Page Limitation by Defendant St. Louis, Missouri, City of. ORDERED: GRANTED. Signed by District Judge Catherine D. Perry on 4/1/2019. (CBL) (Entered: 04/01/2019)

04/01/2019 135 MEMORANDUM in Support of Motion re 126 MOTION to Dismiss Case and dissolve preliminary injunction filed by Defendant St. Louis, Missouri, City of. (CBL) (Entered: 04/01/2019)

04/01/2019

136 Docket Text ORDER: Re: 129 MOTION to Seal Document 126 MOTION to Dismiss Case and dissolve preliminary injunction as to certain exhibits by Defendant St. Louis, Missouri, City of. ORDERED: GRANTED. Signed by District Judge Catherine D. Perry on 4/1/2019. (CBL) (Entered: 04/01/2019)

04/01/2019 137 ENTRY of Appearance by Laurence D. Mass for Intervenor National Lawyers Guild. (Mass, Laurence) (Entered: 04/01/2019)

04/01/2019

138 MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the motion to intervene 130 is granted as unopposed. IT IS FURTHER ORDERED that defendant shall show cause in writing by no later than noon on April 3, 2019, why the subpoena issued to Keith Rose should not be quashed as to the request for production of documents, and why the subpoena issued to Scott Kampas should not be quashed in its entirety. The written response shall not exceed the local rule's page limitation requirement, and no extension of time will be granted. IT IS FURTHER ORDERED that any reply brief submitted in support of the motion to quash shall be filed by no later than 5:00 p.m. on April 3, 2019 and shall not exceed five pages in length. No further briefing will be permitted, and no hearing will be held. Signed by District Judge Catherine D. Perry on 4/1/2019. (CBL) (Entered: 04/01/2019)

04/03/2019

140 Consent MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Dismiss Case and dissolve preliminary injunction by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 04/03/2019)

04/03/2019

141 RESPONSE TO ORDER TO SHOW CAUSE re 138 Memorandum & Order,,, by Defendant St. Louis, Missouri, City of filed by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Laird, Brandon) (Entered: 04/03/2019)

04/03/2019

142 REPLY to Response to Motion re 132 First MOTION to Quash Scott Kampas Subpoena, 131 First MOTION to Quash Keith Rose Subpoena filed by Intervenor National Lawyers Guild. (Ellinger-Locke, Margaret) (Entered: 04/03/2019)

04/03/2019

143 MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the motions to quash 131 , 132 are granted only as follows: the subpoenas are quashed as to the request for production of documents only, but in all other respects the motions are denied and defendant may depose Keith Rose and Scott Kampas. IT IS FURTHER ORDERED that the consent motion for extension of time 140 is granted. Signed by District Judge Catherine D. Perry on 4/3/2019. (CBL) (Entered: 04/03/2019)

04/04/2019

144 MOTION for Leave to file redacted exhibits by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit L.redacted deposition, # 2 Exhibit M.redacted deposition, # 3 Exhibit N.redacted deposition)(Dierker, Robert) (Entered: 04/04/2019)

04/05/2019

145 Docket Text ORDER: Re: 144 MOTION for Leave to file redacted exhibits by Defendant St. Louis, Missouri, City of ; ORDERED: Motion is GRANTED. Signed by District Judge Catherine D. Perry on April 5, 2019. (MCB) (Entered: 04/05/2019)

04/13/2019

146 Consent MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Dismiss Case and dissolve preliminary injunction by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 04/13/2019)

04/15/2019

147 Docket Text ORDER: Re 146 Consent MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Dismiss Case and dissolve preliminary injunction by Plaintiff Maleeha S. Ahmad; ORDERED GRANTED. (Response to Court due by 4/29/2019). Signed by District Judge Catherine D. Perry on 4/15/19. (EAB) (Entered: 04/15/2019)

04/24/2019 148 Joint MOTION for Extension of Time to Complete Discovery by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 04/24/2019)

04/24/2019

149 Docket Text ORDER: Re 148 Joint MOTION for Extension of Time to Complete Discovery by Defendant St. Louis, Missouri, City of; ORDERED GRANTED. (Discovery Completion due by 5/29/2019 and Non-Dispositive Motions due by 6/3/2019.) Signed by District Judge Catherine D. Perry on 4/24/19. (EAB) (Entered: 04/24/2019)

04/29/2019

150 ***Withdrawn per Order 168 dated 5/31/2019.*** MOTION to Exclude Expert by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit expert report)(Dierker, Robert) (Additional attachment(s) added on 5/1/2019: # 2 Exhibit 2) (EAB). Modified on 5/31/2019 (CBL). (Entered: 04/29/2019)

04/29/2019 151 MEMORANDUM in Support of Motion re 150 MOTION to Exclude Expert filed by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 04/29/2019)

04/29/2019 152 MOTION for Leave to file exhibit in support of motion to exclude by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit copy of ordinance)(Dierker, Robert) (Entered: 04/29/2019)

04/29/2019

153 Amended MOTION for Leave to file correct exhibit in support of motion to exclude by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit copy of ordinance)(Dierker, Robert) (Entered: 04/29/2019)

04/29/2019

154 MEMORANDUM in Opposition re 126 MOTION to Dismiss Case and dissolve preliminary injunction filed by Plaintiff Maleeha S. Ahmad. (Attachments: # 1 Deposition of Rule 30(b)(6) designee Eric Larson, # 2 Deposition of Lawrence O'Toole)(Rothert, Anthony) (Entered: 04/29/2019)

04/30/2019

155 Docket Text ORDER: Re: 152 , 153 MOTION and Amended MOTION for Leave to file correct exhibit in support of motion to exclude by Defendant St. Louis ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 4/30/19. (CDP) (Entered: 04/30/2019)

05/06/2019

156 REPLY to Response to Motion re 126 MOTION to Dismiss Case and dissolve preliminary injunction filed by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit deposition, # 2 Exhibit deposition, # 3 Errata deposition corrections)(Dierker, Robert) (Entered: 05/06/2019)

05/06/2019

158 ADR COMPLIANCE REPORT by Neutral: Goldman, Roger L.; Date of Conference: 2/1, 2/15, 3/6, 3/20, 5/31, 10/24 - 2018. The parties did participate in good faith. The parties did not achieve a settlement.(EAB) (Entered: 05/07/2019)

05/07/2019

157 MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' second motion to certify class 110 is granted only as set forth above. IT IS FURTHER ORDERED that named plaintiffs Maleeha Ahmad, W. Patrick Mobley, and Pamela Lewczuk are appointed as class representatives to represent the following class: persons who will in the future participate in or observe non-violent public demonstrations and/or who record such public demonstrations and/or police activities at the public demonstrations for the exercise of constitutional rights of free speech and assembly in the City of St. Louis. IT IS FURTHER ORDERED that Anthony E. Rothert, Jessie M. Steffan, and Omri E. Praiss of the American Civil Liberties Union of Missouri Foundation, 906 Olive Street, Suite 1130, St. Louis, Missouri

63101 and Gillian R. Wilcox of the American Civil Liberties Union of Missouri Foundation, 406 W. 34th St., Suite 420, Kansas City, Missouri 64111 are appointed as class counsel. Signed by District Judge Catherine D. Perry on 5/7/2019. (CBL) (Entered: 05/07/2019)

05/15/2019

159 MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant's motion to dismiss and dissolve preliminary injunction 126 is denied. Signed by District Judge Catherine D. Perry on 5/15/2019. (CBL) (Entered: 05/15/2019)

05/21/2019

NOTICE: IF YOU HAVE ALREADY UPGRADED YOUR PACER ACCOUNT YOU CAN DISREGARD THIS NOTICE. IF YOU DO NOT UPGRADE YOU WILL NOT BE ABLE TO FILE IN THE SYSTEM AFTER MAY 31, 2019. PLEASE UPGRADE IMMEDIATELY. If you are using a shared account to file cases, you will need to create an individual account; instructions can be found at:https://www.moed.uscourts.gov/sites/moed/files/Register-for-NewPACER-account.pdf. If you already have an individual account, it will need to be upgraded; instructions can be found https://www.moed.uscourts.gov/sites/moed/files/UpgradeCurrent-PACER-Account.pdf. If you need further assistance contact the MOED CM/ECF Help Desk at 314-244-7650 or moedml_cmecf_help@moed.uscourts.gov. (CSAW) (Entered: 05/21/2019)

05/21/2019

160 LETTER from USCA re: PETITION FOR PERMISSION TO APPEAL CLASS CERTIFICATION ORDER PURSUANT TO F.R.CIV.P. 23(f), IN E.D.MO. NO. 4:17CV2455 filed by Defendant City of St. Louis, Missouri. Counsel for the respondent is directed to file a response to this application within 10 days from service of the petition. USCA Appeal #: 19-8011 (miscellaneous case number). (Attachments: # 1 Appendix to petition, # 2 permission to appeal)(MCB) (Entered: 05/22/2019)

05/22/2019 161 NOTICE OF APPEAL as to 159 Memorandum & Order by Defendant St. Louis, Missouri, City of. Filing fee $ 505, receipt number 08657227553. (Entered: 05/22/2019)

05/23/2019

162 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 159 Memorandum & Order. Notice of Appeal filed on 5/22/19 by Defendant St. Louis, Missouri, City of. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(BAK) (Entered: 05/23/2019)

05/24/2019 163 Initial Notification from USCA for 161 Notice of Appeal filed by St. Louis, Missouri, City of. USCA Appeal Number: 19-2062.(MCB) (Entered: 05/24/2019)

05/24/2019

164 Briefing Schedule from USCA for 161 Notice of Appeal filed by St. Louis, Missouri, City of USCA Appeal Number: 19-2062. Transcript due: 7/3/2019 (See attached document for all other deadlines.)(MCB) (Entered: 05/24/2019)

05/29/2019

165 MEMORANDUM in Opposition re 150 MOTION to Exclude Expert filed by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 05/29/2019)

05/30/2019 166 MOTION for Leave to withdraw 150 motion to exclude expert by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 05/30/2019)

05/30/2019

167 ORDER of USCA as to 161 Notice of Appeal filed by City of St. Louis, Missouri. The Respondents' motion for an extension of time to file their response to the petition for permission to appeal under FRCP 23(f) is granted up to and including, June 7, 2019. USCA Appeal #: 198011. (EAB) (Entered: 05/30/2019)

05/31/2019

168 Docket Text ORDER: Re: 166 MOTION for Leave to withdraw 150 motion to exclude expert by Defendant St. Louis, Missouri, City of. ORDERED: LEAVE GRANTED. Motion 150 to Exclude Expert is Ordered Withdrawn. Signed by District Judge Catherine D. Perry on 5/31/2019. (CBL) (Entered: 05/31/2019)

06/03/2019

169 MOTION for Extension of: time to file motion to compel by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 06/03/2019)

06/04/2019 170 RESPONSE to Motion re 169 MOTION for Extension of: time to file motion to compel filed by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 06/04/2019)

06/04/2019

171 Docket Text ORDER: Re: 169 MOTION for Extension of: time to file motion to compel by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley; ORDERED: GRANTED, and extension applies to both parties. Signed by District Judge Catherine D. Perry on June 4, 2019. (MCB) (Entered: 06/04/2019)

06/14/2019 172 ORDER of USCA as to 161 Notice of Appeal filed by St. Louis, Missouri, City of Regarding: Petitioner City of St. Louis, Missouris petition for permission to appeal under FRCvP 23(f) is granted. The

case has been assigned appeal number 19-2221 on the regular docket. USCA Appeal #: 19-8011 (MCB) (Entered: 06/14/2019)

06/14/2019

173 LETTER from USCA re 161 Notice of Appeal. Case Docketed On Transfer - This case was transferred from 23(f) case number 19-8011. USCA Appeal #: 19-2221. (EAB) (Entered: 06/14/2019)

06/14/2019 174 Briefing Schedule from USCA for 161 Notice of Appeal filed by St. Louis, Missouri, City of. USCA Appeal Number: 19-2221 (See attached document for all other deadlines.)(EAB) (Entered: 06/14/2019)

06/14/2019

185 NOTICE OF APPEAL by Defendant St. Louis, Missouri, City of re:172 ORDER of USCA as to 161 Notice of Appeal filed by St. Louis, Missouri, City of Regarding: Petitioner City of St. Louis, Missouris petition for permission to appeal under FRCvP 23(f) is granted. The case has been assigned appeal number 19-2221 on the regular docket. (MCB) (Entered: 06/24/2019)

06/17/2019

175 USCA JUDGMENT as to 161 Notice of Appeal filed by City of St. Louis, Missouri. Judgment is entered in accordance with the court's order of June 14, 2019, granting the petition for permission to appeal under FRCvP 23(f). Mandate shall issue forthwith. This appeal has been assigned number 19-2221 on the regular docket. (EAB) (Entered: 06/17/2019)

06/17/2019

176 MANDATE of USCA as to 161 Notice of Appeal filed by St. Louis, Missouri, City of USCA #:19-8011 In accordance with the judgment and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter. (EAB) (Entered: 06/17/2019)

06/17/2019

177 MOTION for Order to Show Cause under Rule 45(e) by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 Exhibit Ex. 1 - Subpoena Ducus Tecum, # 2 Exhibit Ex. 2 - Affidavit of Service)(Steffan, Jessie) (Entered: 06/17/2019)

06/17/2019

178 Amended MOTION for Order to Show Cause With Corrected Date of Service by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Attachments: # 1 Exhibit Ex. 1 - Subpoena Ducus Tecum, # 2 Exhibit Ex. 2 - Affidavit of Service)(Steffan, Jessie) (Entered: 06/18/2019)

06/18/2019

179 MEMORANDUM AND ORDER TO SHOW CAUSE. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' Amended Motion for Show Cause Order 178 is granted, and St. Louis County shall show cause in writing, not later than 14 days from the date of this Order, why it should not be held in contempt for failing to timely respond to the

Subpoena in compliance with Federal Rule of Civil Procedure 45(e) or for failing to timely move to quash or modify the Subpoena under Federal Rule of Civil Procedure 45(d). Plaintiffs shall forthwith serve a copy of this Memorandum and Order to Show Cause upon St. Louis County and file an affidavit of compliance attesting to the same. IT IS FURTHER ORDERED that the Motion for Order to Show Cause 177 is denied as moot. Signed by District Judge Catherine D. Perry on 6/18/2019. (CBL) (Entered: 06/18/2019)

06/18/2019 180 Joint MOTION for Protective Order by Plaintiffs Maleeha S. Ahmad, W. Patrick Mobley, Movant Michael A Faulk. (Attachments: # 1 Text of Proposed Order)(Rothert, Anthony) (Entered: 06/18/2019)

06/18/2019

181 AFFIDAVIT re 179 Memorandum & Order,,,, Order to Show Cause,,, Affidavit of Compliance re Service upon Nonparty St. Louis County by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Steffan, Jessie) (Entered: 06/18/2019)

06/19/2019 182 PROTECTIVE ORDER re: CONFIDENTIAL INFORMATION. SO ORDERED. Signed by District Judge Catherine D. Perry on 6/19/2019. (CBL) (Entered: 06/19/2019)

06/21/2019

183 Consent MOTION for Protective Order (St. Louis County) by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Text of Proposed Order proposed consent order)(Dierker, Robert) (Entered: 06/21/2019)

06/21/2019

184 PROTECTIVE ORDER re: CONFIDENTIAL INFORMATION 183 Consent MOTION for Protective Order (St. Louis County) filed by Defendant. SO ORDERED. Signed by District Judge Catherine D. Perry on 6/21/19. (EAB) (Entered: 06/21/2019)

06/24/2019

Receipt 4644080705 in the amount of $505.00 for NOTICE OF APPEAL/DOCKET FEE on behalf of St. Louis City Counselors (CCAM) (Entered: 06/25/2019)

06/26/2019 186 MOTION to Stay by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 06/26/2019)

06/26/2019 187 MEMORANDUM in Support of Motion re 186 MOTION to Stay filed by Defendant St. Louis, Missouri, City of. (Dierker, Robert) (Entered: 06/26/2019)

06/30/2019

188 NOTICE compliance with subpoena by St Louis County: by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley re 179 Memorandum & Order,,,, Order to Show Cause,,, (Rothert, Anthony) (Entered: 06/30/2019)

07/03/2019 189 MEMORANDUM in Opposition re 186 MOTION to Stay filed by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 07/03/2019)

07/03/2019 190 REPLY to Response to Motion re 186 MOTION to Stay filed by Defendant St. Louis, Missouri, City of. (Attachments: # 1 Exhibit 8th Circuit order)(Dierker, Robert) (Entered: 07/03/2019)

07/12/2019

191 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant's motion to stay 186 is granted as follows: this case is removed from the August 26, 2019, trial docket and will be reset, if necessary, by further Order of this Court. All deadlines relating to pretrial compliance set out in the Case Management Order [Doc. # 81 ] are stayed and will be reset by further Order of this Court. All proceedings in this case are stayed pending disposition of defendant's consolidated appeal with the Eighth Circuit Court of Appeals, except that the Order of Preliminary Injunction entered November 15, 2017 58 is not stayed and remains in full force and effect. Signed by District Judge Catherine D. Perry on July 12, 2019. (BRP) (Entered: 07/12/2019)

08/02/2019

192 Records Transmittal re 185 Notice of Appeal, : USCA Appeal #: 192221 The following has been forwarded to USCA: Exhibits #18, 19, 30, 65, and 139.(JWD) (Entered: 08/02/2019)

05/26/2020 193 MOTION to Withdraw as Attorney ;attorney/firm Megan Bruyns by Defendant St. Louis, Missouri, City of. (Bruyns, Megan) (Entered: 05/26/2020)

05/27/2020

194 Docket Text ORDER Re: 193 MOTION to Withdraw as Attorney; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 5/27/2020. (TMT) (Entered: 05/27/2020)

04/27/2021

195 OPINION from USCA re 185 Notice of Appeal, 161 Notice of Appeal : USCA Appeal #: 19-2062, 19-2221. For the forgoing reasons, the orders of the district court are modified and the case is remanded for further proceedings not inconsistent with this opinion. (ARL) (Entered: 04/27/2021)

04/27/2021

196 USCA JUDGMENT as to 185 Notice of Appeal, filed by St. Louis, Missouri, City of, 161 Notice of Appeal filed by St. Louis, Missouri, City of. This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the orders of the district court in this cause are modified and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (ARL) (Entered: 04/27/2021)

04/28/2021 197 MOTION to Lift Stay by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 04/28/2021)

04/28/2021 198 MEMORANDUM in Support of Motion re 197 MOTION to Lift Stay filed by Plaintiffs Maleeha S. Ahmad, Pamela Lewczuk, W. Patrick Mobley. (Rothert, Anthony) (Entered: 04/28/2021)

04/29/2021

199 MEMORANDUM AND ORDER LIFTING STAY: IT IS HEREBY ORDERED that plaintiffs' motion to lift stay 197 is granted, and not later than May 14, 2021, the parties shall file a joint memorandum setting out mutually agreeable dates for the trial of this matter. The joint memorandum shall include an estimate of how many days this case will require for trial and any other matters for the Court's consideration. Signed by District Judge Catherine D. Perry on 04/29/2021. (ANP) (Entered: 04/29/2021)

05/13/2021 200 RESPONSE TO COURT ORDER re 199 Memorandum & Order, by Plaintiff Maleeha S. Ahmad. (Rothert, Anthony) (Entered: 05/13/2021)

05/17/2021

201 ORDER REASSIGNING CASE. IT IS HEREBY ORDERED that this case is transferred from U.S. District Judge Catherine D. Perry to US. District Judge Matthew T. Schelp for all further proceedings. Signed by District Judge Rodney W. Sippel on 5/17/2021. (CBL) (Entered: 05/17/2021)

05/25/2021 202 MOTION to Withdraw as Attorney ;attorney/firm Amy Raimondo by Defendant St. Louis, Missouri, City of. (Raimondo, Amy) (Entered: 05/25/2021)

05/27/2021

203 Docket Text ORDER Re: 202 MOTION to Withdraw as Attorney; attorney/firm Amy Raimondo filed by St. Louis, Missouri, City of; ORDERED GRANTED. Signed by District Judge Matthew T. Schelp on 5/27/2021. (TMT) (Entered: 05/27/2021)

06/02/2021

204 ORDER: IT IS HEREBY ORDERED that a status conference will be held on Tuesday, June 8, 2021, at 10:00 a.m. to discuss the pretrial and trial schedule in this matter. The status conference will be held via video conference on Zoom. Hearing participants are directed to use the following login information to participate by zoomgov.com: Meeting ID: 160 969 4455, Password: 355339. All participants are directed to add their name (right click and select Rename) to their profile upon entering the Zoom hearing. Or, participants may call: 1-669-254-5252, Meeting ID: 160 969 4455. (Status Conference set for 6/8/2021 10:00 AM in Zoom Video Conference before District Judge Matthew T. Schelp.) Signed by District Judge Matthew T. Schelp on June 2, 2021. (BRP) (Entered: 06/02/2021)

06/02/2021 205 ENTRY of Appearance by Molly E. Carney for Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Pamela Lewczuk, Iris Maclean, W. Patrick Mobley. (Carney, Molly) (Entered: 06/02/2021)

06/02/2021 206 ENTRY of Appearance by Kayla DeLoach for Plaintiffs Maleeha S. Ahmad, Brian Baude, Alison Dreith, Pamela Lewczuk, Iris Maclean, W. Patrick Mobley. (DeLoach, Kayla) (Entered: 06/02/2021)

06/04/2021 207 ENTRY of Appearance by Catherine Dierker for Defendant St. Louis, Missouri, City of. (Dierker, Catherine) (Entered: 06/04/2021)

06/08/2021

208 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Matthew T. Schelp: Status Conference held on 6/8/2021 via Zoom. Court reporter not present. The Court hears from the parties regarding trial status. This matter remains set for bench trial on 8/23/2021 at 8:30 AM. (Bench Trial set for 8/23/2021 08:30 AM in Courtroom 14S - St. Louis before District Judge Matthew T. Schelp.) (proceedings started: 10:04 am) (proceedings ended: 10:30 am) (Appearance for Plaintiff: Anthony Rothert; Molly Carney)(Appearance for Defendant: Robert Dierker; Brandon Laird) (TMT) (Entered: 06/08/2021)

06/08/2021

209 ORDER : IT IS HEREBY ORDERED that a non-jury trial is set in this matter for August 23, 2021 at 8:30 a.m. in Courtroom 14-South. This is a date certain. A final pretrial conference is scheduled for Monday, August 9, 2021 at 1:00 p.m. in Courtroom 14-South. [SEE ORDER FOR COMPLETE DETAILS]. ( Bench Trial set for 8/23/2021 08:30 AM in Courtroom 14S - St. Louis before District Judge Matthew T. Schelp. Motion in Limine due by 8/13/2021. Pretrial Conference set for 8/9/2021 01:00 PM in Courtroom 14S - St. Louis before District Judge Matthew T. Schelp. Pretrial Compliance due by 8/3/2021.) Signed by District Judge Matthew T. Schelp on 06/08/2021. (KCD) (Entered: 06/08/2021)

06/08/2021

210 ORDER of USCA : Appellants petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Appellees petition for rehearing by the panel is denied. USCA Appeal #: 19-2062. (ANP) (Entered: 06/09/2021)

06/15/2021

211 MANDATE of USCA USCA #:19-2062 In accordance with the judgment and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the abovestyled matter. Appeal is denied. (NEP) (Entered: 06/15/2021)

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4:17-cv-02455MTS 2.30

 
 Case: 4:17-cv-02455-CDP Doc. #: 1 Filed: 09/22/17 Page: 1 of 12 PageID #: 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MALEEHA AHMAD and ALISON DREITH, on behalf of themselves and a class of similarly situated individuals,
Plaintiffs, v. CITY OF ST. LOUIS, MISSOURI,
Defendant.

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No. 4:17-cv-2455

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COMPLAINT Plaintiffs Maleeha Ahmad and Alison Dreith allege as follows:
INTRODUCTION 1. Plaintiffs bring this civil-rights class action against the City of St. Louis, Missouri for retaliating against persons engaging in First Amendment-protected activity; for interfering with the right to record police officers in public places; for unreasonably seizing them and applying excessive force; and for violating procedural due process rights by kettling and gassing and spraying them with chemical agents designed to cause pain and confusion without constitutionally adequate warning.
PARTIES 2. Plaintiff Maleeha Ahmad is a Missouri resident who lives in the City of St. Louis. 3. Plaintiff Alison Dreith is a Missouri resident who lives in the City of St. Louis.

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4. Defendant City of St. Louis is a municipal corporation of the State of Missouri. JURISDICTION AND VENUE
5. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, and the First and Fourth Amendments, as incorporated as against States and their municipal divisions through the Fourteenth Amendment.
6. The jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1331 because Plaintiffs’ action arises under the Constitution of the United States and § 1343(a)(3) to redress the deprivation of rights secured by the Constitution of the United States.
7. Venue is proper in the United States District Court for the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred in the City of St. Louis.
8. Divisional venue is proper in the Eastern Division because the a substantial part of the events leading to the claims for relief arose in the City of St. Louis and Defendant resides in the Eastern Division. E.D. Mo. L.R. 2.07(A)(1), (B)(1). FACTS
9. In December 2011, then-St. Louis police officer Jason Stockley (who is white) shot and killed St. Louis resident Anthony Lamar Smith (who was African American), whom Stockley and his partner had initially stopped on suspicion of involvement in a drug transaction.
10. In May 2016, Officer Stockley was charged with first-degree murder for Smith’s death. 11. On Friday, September 15, 2017, after a four-day bench trial, Missouri Circuit Judge
Timothy Wilson acquitted Officer Stockley of first-degree murder and its lesser included homicide offenses.
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12. Many community members disagreed with the verdict. 13. Public protests began later that day at multiple locations in St. Louis and surrounding
communities, some spontaneous and others more organized. 14. A common theme of the protests has been that, in the view of the protestors, the verdict
reflected institutional racism and unwarranted bias in favor of law enforcement officers. 15. St. Louis Metropolitan police officers have amassed at several protests wearing tactical
dress, including helmets, and carrying batons, full-body riot shields, and chemicals, such as tear gas, skunk, inert smoke, pepper gas, pepper pellets, xylyl bromide, and/or similar substances (collectively, “chemical agents”). 16. On multiple occasions, police officers have without warning deployed chemical agents against protestors, including Plaintiffs, as well as bystanders, members of the press, and patrons of nearby businesses, including but not limited to the following occasions:
a. Friday afternoon near the intersection of Clark and Tucker Avenues b. Friday evening near the intersection of McPherson and Euclid Avenues c. Friday evening near the intersection of Waterman and Kingshighway Boulevards d. Friday evening near the intersection of Euclid and Maryland Avenues e. Friday evening near the intersection of Lindell and Kingshighway Boulevards f. Friday evening near the intersection of Euclid Avenue and Pershing Place g. Sunday evening near the intersection of Tucker Boulevard and Washington
Avenue 17. On Sunday night, St. Louis Metropolitan police officers employed a tactic known as
“kettling” at the intersection of Tucker Boulevard and Washington Avenue.
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18. Police officers had—some 45 minutes earlier—ordered some protestors to “disperse” at a location some distance away.
19. However, police officers then permitted protestors, as well as other pedestrians not participating in or observing the protest, to enter and exit the area at will during the interim, including allowing people to move into intersection of Tucker and Washington.
20. Without further instruction of warning, or any instruction or warning at all at the intersection, police officers surrounded protestors, observers, and members of the press, cutting off all routes of egress—including via any sidewalk—and prohibiting the people trapped inside from leaving.
21. Police officers, who were wearing protective equipment, then without warning deployed chemical agents at the individuals caught in the kettle.
22. Some individuals caught in the kettle had been wearing goggles because they feared the deployment of chemical agents.
23. Police officers roughly removed the goggles and then sprayed those individuals directly in the face.
24. Police officers are authorized by St. Louis Code of Ords. 15.52.010 and 17.16.275 to declare protests “unlawful assemblies” and to order protestors “to disperse.”
25. On some occasions, the protests did not meet the ordinance definition of an unlawful assembly.
26. Dispersal orders, even when given, were too remote in time and distance for a person of ordinary intelligence, including Plaintiffs, to understand where and when they applied.
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27. Throughout the weekend, on multiple occasions, police officers commanded protestors and observers to cease recording video and photographs and on some occasions deleted, or commanded to be deleted, video and photographs already recorded.
28. Police officers intentionally exposed Plaintiffs to chemical agents without notice or the opportunity to disperse. MUNICIPAL ALLEGATIONS
29. The City of St. Louis has a custom or policy of deploying chemical agents against protestors without warning and has done so on occasions before these particular protests, including in November 2014 near the intersection of Arsenal Street and Grand Avenue and in August 2015 near the intersection of Walton Avenue and Page Boulevard.
30. The City of St. Louis has a custom or policy of commanding protestors to disperse without providing sufficient routes of egress and without instructions about where, how quickly, and how far away individuals must go to comply with that order, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
31. The City of St. Louis has a custom or policy of enforcing Ord. 15.52.010, defining an unlawful assembly, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
32. The City of St. Louis has a custom or policy of enforcing Ord. 17.16.275, describing the offense of failure to disperse, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street
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Case: 4:17-cv-02455-CDP Doc. #: 1 Filed: 09/22/17 Page: 6 of 12 PageID #: 6
and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 33. Both ordinances are unconstitutionally vague on their face and as applied to Plaintiffs and do not provide fair notice to a reasonable person as to how to comply with the law. 34. The City of St. Louis has a custom or policy of retaliating against protestors expressing disapproval of the actions of law enforcement officers, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 35. The City of St. Louis has failed to supervise and train its officers to deploy chemical agents in a constitutional way, to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a constitutional way, to permit recording of police actions, and to avoid restricting freedom of movement unjustifiably, and has been on notice that the lack of training and supervision have resulted in the deprivation of constitutional rights since at least 2014. 36. Plaintiffs have not attended protests they otherwise would have participated in and/or observed because of their reasonable fear that they will be exposed to chemical agents without warning, be retaliated against for recording police officers, and/or have their freedom of movement unlawfully restricted, and because St. Louis Code of Ords. 15.52.010 and 17.16.275 have been enforced in an arbitrary, capricious, selective, and retaliatory way.
CLASS ALLEGATIONS
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37. Under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs bring this action for prospective relief on behalf of themselves and other similarly situated people who will in the future, protest within the City of St. Louis in a traditional or designated public forum (the “Plaintiff Class”).
38. The Plaintiff Class is so numerous that joinder of all members would be impracticable. Well over one thousand people have participated in and/or observed protests relating to the Officer Stockley verdict since it was issued on September 15.
39. As a result of the City of St. Louis’ customs or policies of kettling, deploying chemical agents without warning, unconstitutionally interfering with protestors’ right to record the police in a public space, and enforcing St. Louis Code of Ords. 15.52.010 and 17.16.275 in an unconstitutional manner, the Plaintiff Class has been and will continue to be deprived of their constitutional rights under the First, Fourth, and Fourteenth Amendments.
40. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and Plaintiffs and all Plaintiff Class members have a reasonable fear that the City of St. Louis will continue to enforce its unconstitutional customs or policies relating to kettling, the deployment of chemical agents without warning, the interference with protestors recording the police, and the enforcement of vague ordinances in an arbitrary, capricious, selective, and retaliatory way.
41. Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. Plaintiffs have no interests that are contrary to or in conflict with those of the class they seek to represent. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class.
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42. Questions common to the plaintiff class predominate over individual questions. These legal and factual questions include but are not limited to: a. Whether the City of St. Louis, through its police officers, must provide warning before deploying chemical agents and, if so, what kind of warning is constitutionally sufficient b. Whether the City of St. Louis, through its police officers, may constitutionally block all routes of egress and then deploy chemical agents when protestors are nonresistant and unable to flee c. Whether the City of St. Louis, through its police officers, may constitutionally command protestors to delete photographs and videos already recorded which depict officer actions in a public space d. Whether the City of St. Louis, through its police officers, may command protestors to cease recording video when the recording does not interfere with officers’ ability to perform their duties e. Whether St. Louis Code of Ords. 15.52.010 and 17.16.275 are unconstitutionally vague on their face and/or as applied to the Plaintiff Class f. What kind of dispersal order is required when ordering individuals to disperse, whether and how many and what type of routes of egress must be available, and how far in time and distance a warning may be before an individual may be arrested for the offenses of “failure to disperse” or “failure to obey”
43. Relief concerning Plaintiffs’ rights under the laws herein alleged and with respect to the Plaintiff Class would be proper. The City of St. Louis has acted on grounds generally applicable to the Plaintiff Class, thereby making appropriate final injunctive relief or
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corresponding declaratory relief with regard to the Plaintiff Class as a whole and certification of the Plaintiff Class under Rule 23(b)(2) proper.
COUNT I: FIRST AMENDMENT First Amendment retaliation – 42 U.S.C. § 1983 44. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein. 45. Plaintiffs engaged in constitutionally protected expressive activity when they gathered together on public streets and sidewalks, and when they marched as a group, to express their disapproval of the acquittal of Officer Stockley. 46. The City of St. Louis retaliated against Plaintiffs for engaging in constitutionally protected expressive activity. 47. Plaintiffs and the Plaintiff Class reasonably fear deployment of chemical agents without warning, unlawful seizure and excessive force through kettling, interference with their right to record the police, and enforcement of St. Louis Code of Ords. 15.52.010 and 17.16.275 in an arbitrary and/or retaliatory manner if they participate in or observe a protest in the City of St. Louis. 48. These acts that would chill a person of ordinary firmness from continuing to engage in a constitutionally protected activity, and they did, in fact, chill Plaintiffs from continuing to peacefully observe, protest, and/or march to express their beliefs. 49. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train and supervise its officers, that caused the First Amendment retaliation. WHEREFORE, Plaintiffs respectfully request this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis;
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B. Issue a temporary restraining order, preliminary injunction, and permanent injunction requiring the City of St. Louis to declare protests “unlawful assemblies” and to order protestors “to disperse” in a constitutional manner and otherwise limit police activities at protests as required by the Constitution;
C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and
D. Allow such other and further relief as the Court deems just and proper. COUNT II: FOURTH AMENDMENT Unlawful Seizure and Excessive Force
50. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
51. Plaintiffs and the Plaintiff Class were seized by the City of St. Louis when its officers intentionally, and by use of chemical agents and/or kettling, terminated their freedom of movement.
52. The use of chemical agents without warning and the employment of kettling without warning was objectively unreasonable and constituted an unlawful seizure and excessive force.
53. Plaintiffs had committed no crime. 54. Plaintiffs posed no threat to the safety of any police officer or any other person. 55. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train
and supervise its officers, that caused the unlawful seizures and use of excessive force. WHEREFORE, Plaintiffs respectfully requests this Court:
A. Enter judgment in favor of Plaintiffs and against the City of St. Louis;
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B. Issue a temporary restraining order, preliminary injunction, and permanent injunction requiring the City of St. Louis to declare protests “unlawful assemblies” and to order protestors “to disperse” in a constitutional manner and otherwise limit police activities at protests as required by the Constitution;
C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and
D. Allow such other and further relief as the Court deems just and proper. COUNT III: FOURTEENTH AMENDMENT Procedural Due Process
56. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
57. The due process rights of Plaintiffs and the Plaintiff Class were violated when the City of St. Louis, through its agent officers, failed to provide any warning about the deployment of chemical agents, to provide an opportunity to disperse, to leave open routes of egress, and to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a way that a person of ordinary intelligence could understand and comply with.
58. St. Louis Code of Ords. 15.52.010 and 17.16.275, and the City of St. Louis’ policies and customs related to their enforcement, permit arbitrary enforcement at the unbridled discretion of an individual police officer(s), without adequate notice or an adequate opportunity to comply, in a way that does not provide a person of ordinary intelligence with a reasonable opportunity to understand what conduct is permitted and prohibited, and in a way that authorizes and encourages discrimination based on the content of the message of a person engaged in expressive activity.
WHEREFORE, Plaintiffs respectfully requests this Court:
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A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a temporary restraining order, preliminary injunction, and permanent
injunction requiring the City of St. Louis to declare protests “unlawful assemblies” and to order protestors “to disperse” in a constitutional manner and otherwise limit police activities at protests as required by the Constitution; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and D. Allow such other and further relief as the Court deems just and proper.
Respectfully submitted, /s/ Anthony E. Rothert Anthony E. Rothert, #44827 Jessie Steffan, #64861 American Civil Liberties Union of Missouri Foundation 906 Olive Street, Suite 1130 St. Louis, Missouri 63101 (314) 652-3114 (314) 652-3112 (facsimile) arothert@aclu-mo.org jsteffan@aclu-mo.org Gillian R. Wilcox, #61278 406 West 34th Street, Suite 420 Kansas City, Missouri 64111 American Civil Liberties Union of Missouri Foundation (816) 470-9938 gwilcox@aclu-mo.org Attorneys for Plaintiffs
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 Case: 4:17-cv-02455-CDP Doc. #: 9 Filed: 09/28/17 Page: 1 of 14 PageID #: 36

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MALEEHA AHMAD, ALISON DREITH, IRIS MACLEAN, W. PATRICK MOBLEY, and BRIAN BAUDE, on behalf of themselves and a class of similarly situated individuals,
Plaintiffs, v. CITY OF ST. LOUIS, MISSOURI,
Defendant.

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No. 4:17-cv-2455-RLW

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FIRST AMENDED COMPLAINT FOR PROSPECTIVE RELIEF Plaintiffs allege as follows:
INTRODUCTION 1. Plaintiffs bring this civil-rights class action against the City of St. Louis, Missouri for retaliating against persons engaging in First Amendment-protected activity; for interfering with the right to record police officers in public places; for unreasonably seizing them and applying excessive force; and for violating procedural due process rights by kettling and gassing and spraying them with chemical agents designed to cause pain and confusion without constitutionally adequate warning.

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PARTIES 2. Plaintiff Maleeha Ahmad is a Missouri resident who lives in the City of St. Louis. 3. Plaintiff Alison Dreith is a Missouri resident who lives in the City of St. Louis. 4. Plaintiff Iris Maclean is a Missouri resident who lives in the City of St. Louis. 5. Plaintiff W. Patrick Mobley is a Missouri resident who lives in the City of St. Louis. 6. Plaintiff Brian Baude is a Missouri resident who lives in the City of St. Louis. 7. Defendant City of St. Louis is a municipal corporation of the State of Missouri.
JURISDICTION AND VENUE 8. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to
the United States Constitution, and the First and Fourth Amendments, as incorporated as against States and their municipal divisions through the Fourteenth Amendment. 9. The jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1331 because Plaintiffs’ action arises under the Constitution of the United States and § 1343(a)(3) to redress the deprivation of rights secured by the Constitution of the United States. 10. Venue is proper in the United States District Court for the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred in the City of St. Louis. 11. Divisional venue is proper in the Eastern Division because the a substantial part of the events leading to the claims for relief arose in the City of St. Louis and Defendant resides in the Eastern Division. E.D. Mo. L.R. 2.07(A)(1), (B)(1).
FACTS 12. In December 2011, then-St. Louis police officer Jason Stockley (who is white) shot and
killed St. Louis resident Anthony Lamar Smith (who was African American), whom
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Stockley and his partner had initially stopped on suspicion of involvement in a drug transaction. 13. In May 2016, Officer Stockley was charged with first-degree murder for Smith’s death. 14. On Friday, September 15, 2017, after a four-day bench trial, Missouri Circuit Judge Timothy Wilson acquitted Officer Stockley of first-degree murder and its lesser included homicide offenses. 15. Many community members disagreed with the verdict. 16. Public protests began later that day at multiple locations in St. Louis and surrounding communities, some spontaneous and others more organized. 17. A common theme of the protests has been that, in the view of the protestors, the verdict reflected institutional racism and unwarranted bias in favor of law enforcement officers. 18. St. Louis Metropolitan police officers have amassed at several protests wearing tactical dress, including helmets, and carrying batons, full-body riot shields, and chemicals, such as tear gas, skunk, inert smoke, pepper gas, pepper pellets, xylyl bromide, and/or similar substances (collectively, “chemical agents”). 19. On multiple occasions, police officers have without warning deployed chemical agents against individuals observing, recording, or participating in protest activity, including Plaintiffs Ahmad, Dreith, Maclean, and Baude, including but not limited to the following occasions:
a. Friday afternoon near the intersection of Clark and Tucker Avenues b. Friday evening near the intersection of McPherson and Euclid Avenues c. Friday evening near the intersection of Waterman and Kingshighway Boulevards d. Friday evening near the intersection of Euclid and Maryland Avenues
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e. Friday evening near the intersection of Lindell and Kingshighway Boulevards f. Friday evening near the intersection of Euclid Avenue and Pershing Place g. Sunday evening near the intersection of Tucker Boulevard and Washington
Avenue 20. On Sunday night, St. Louis Metropolitan police officers employed a tactic known as
“kettling” at the intersection of Tucker Boulevard and Washington Avenue. 21. Police officers had—some 45 minutes earlier—ordered some protestors to “disperse” at a
location some distance away. 22. However, police officers then permitted protestors, as well as other pedestrians not
participating in or observing the protest, to enter and exit the area at will during the interim, including allowing people to move into intersection of Tucker and Washington. 23. Without further instruction of warning, or any instruction or warning at all at the intersection, police officers surrounded individuals observing, recording, or participating in protest activing, including Plaintiffs Maclean and Baude, cutting off all routes of egress—including via any sidewalk—and prohibiting the people trapped inside from leaving. 24. Police officers, who were wearing protective equipment, then without warning deployed chemical agents at the individuals caught in the kettle, including Plaintiffs Maclean and Baude. 25. Some individuals caught in the kettle had been wearing goggles because they feared the deployment of chemical agents. 26. Police officers roughly removed the goggles and then sprayed those individuals directly in the face.
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27. Police officers appear to believe that they are authorized by St. Louis Code of Ords. 15.52.010 and 17.16.275 to declare protests “unlawful assemblies” and to order protestors “to disperse.”
28. On some occasions, the protests did not meet the ordinance definition of an unlawful assembly.
29. Dispersal orders, even when given, were too remote in time and distance for a person of ordinary intelligence, including Plaintiffs, to understand where and when they applied.
30. Throughout the weekend, on multiple occasions, police officers commanded protestors and observers to cease recording video and photographs and on some occasions deleted, or commanded to be deleted, video and photographs already recorded, including video recorded by Plaintiff Mobley.
31. Police officers intentionally exposed Plaintiffs Ahmad, Dreith, Maclean, and Baude to chemical agents without notice or the opportunity to disperse. MUNICIPAL ALLEGATIONS
32. The City of St. Louis has a custom or policy of deploying chemical agents against protestors without warning and has done so on occasions before these particular protests, including in November 2014 near the intersection of Arsenal Street and Grand Avenue and in August 2015 near the intersection of Walton Avenue and Page Boulevard.
33. The City of St. Louis has a custom or policy of commanding protestors to disperse without providing sufficient routes of egress and without instructions about where, how quickly, and how far away individuals must go to comply with that order, and has done so on occasions before these particular protests, including in 2014 near the intersection of
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Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 34. The City of St. Louis has a custom or policy of enforcing Ord. 15.52.010, defining an unlawful assembly, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 35. The City of St. Louis has a custom or policy of enforcing Ord. 17.16.275, describing the offense of failure to disperse, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 36. Both ordinances are unconstitutionally vague on their face and as applied to Plaintiffs and do not provide fair notice to a reasonable person as to how to comply with the law. 37. The City of St. Louis has a custom or policy of retaliating against protestors expressing disapproval of the actions of law enforcement officers, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard. 38. The City of St. Louis has failed to supervise and train its officers to deploy chemical agents in a constitutional way, to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a constitutional way, to permit recording of police actions, and to avoid restricting freedom of movement unjustifiably, and has been on notice that the lack of
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training and supervision have resulted in the deprivation of constitutional rights since at least 2014. 39. Plaintiffs have not attended protests they otherwise would have participated in and/or observed because of their reasonable fear that they will be exposed to chemical agents without warning, be retaliated against for recording police officers, and/or have their freedom of movement unlawfully restricted, and because St. Louis Code of Ords. 15.52.010 and 17.16.275 have been enforced in an arbitrary, capricious, selective, and retaliatory way.
CLASS ALLEGATIONS 40. Under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs bring
this action for prospective relief on behalf of themselves and other similarly situated people who will in the future observe, record, or participate in protest activity within the City of St. Louis in a traditional or designated public forum (the “Plaintiff Class”). 41. The Plaintiff Class is so numerous that joinder of all members would be impracticable. Well over one thousand people have observed, recorded, or participated protest activity within the City of St. Louis since September 15. 42. As a result of the City of St. Louis’ customs or policies of kettling, deploying chemical agents without warning, unconstitutionally interfering with the right of individuals to observe, record, and participate in protest activities in a public space, and enforcing St. Louis Code of Ords. 15.52.010 and 17.16.275 in an unconstitutional manner, the Plaintiff Class has been and will continue to be deprived of their constitutional rights under the First, Fourth, and Fourteenth Amendments.
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43. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and Plaintiffs and all Plaintiff Class members have a reasonable fear that the City of St. Louis will continue to enforce its unconstitutional customs or policies relating to kettling, the deployment of chemical agents without warning, the interference with protestors recording the police, and the enforcement of vague ordinances in an arbitrary, capricious, selective, and retaliatory way.
44. Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. Plaintiffs have no interests that are contrary to or in conflict with those of the class they seek to represent. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class.
45. Questions common to the plaintiff class predominate over individual questions. These legal and factual questions include but are not limited to: a. Whether the City of St. Louis, through its police officers, must provide warning before deploying chemical agents and, if so, what kind of warning is constitutionally sufficient b. Whether the City of St. Louis, through its police officers, may constitutionally block all routes of egress and then deploy chemical agents when protestors are nonresistant and unable to flee c. Whether the City of St. Louis, through its police officers, may constitutionally command protestors to delete photographs and videos already recorded which depict officer actions in a public space
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d. Whether the City of St. Louis, through its police officers, may command protestors to cease recording video when the recording does not interfere with officers’ ability to perform their duties
e. Whether St. Louis Code of Ords. 15.52.010 and 17.16.275 are unconstitutionally vague on their face and/or as applied to the Plaintiff Class
f. What kind of dispersal order is required when ordering individuals to disperse, whether and how many and what type of routes of egress must be available, and how far in time and distance a warning may be before an individual may be arrested for the offenses of “failure to disperse” or “failure to obey”
46. Relief concerning Plaintiffs’ rights under the laws herein alleged and with respect to the Plaintiff Class would be proper. The City of St. Louis has acted on grounds generally applicable to the Plaintiff Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with regard to the Plaintiff Class as a whole and certification of the Plaintiff Class under Rule 23(b)(2) proper. COUNT I: FIRST AMENDMENT First Amendment retaliation – 42 U.S.C. § 1983
47. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein.
48. Plaintiffs engaged in constitutionally protected acts of observing, recording, or participating in expressive activity. Plaintiffs Ahmad and Dreith gathered together on public streets and sidewalks and when they marched as a group, to express their disapproval of the acquittal of Officer Stockley.
49. Plaintiff Mobley engaged in constitutionally protected expressive activity when he recorded video of police officers on duty in a public place.
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50. Plaintiff Maclean and Baude engaged in constitutionally protected expressive activity when they stood on public sidewalks to observe protests and the actions of police officers on duty in a public place.
51. The City of St. Louis retaliated against Plaintiffs for engaging in constitutionally protected expressive activity.
52. Plaintiffs and the Plaintiff Class reasonably fear deployment of chemical agents without warning, unlawful seizure and excessive force through kettling, interference with their right to record the police, and enforcement of St. Louis Code of Ords. 15.52.010 and 17.16.275 in an arbitrary and/or retaliatory manner if they participate in or observe a protest in the City of St. Louis.
53. These acts that would chill a person of ordinary firmness from continuing to engage in a constitutionally protected activity, and they did, in fact, chill Plaintiffs from continuing to peacefully observe, record, and participate in protest activity.
54. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train and supervise its officers, that caused the First Amendment retaliation.
55. Plaintiffs and members of the Plaintiff Class reasonably fear further retaliation in the future if the observe, record, or participate in protest activity.
WHEREFORE, Plaintiffs respectfully request this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a temporary restraining order, preliminary injunction, and permanent injunction; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and
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D. Allow such other and further relief as the Court deems just and proper. COUNT II: FOURTH AMENDMENT Unlawful Seizure and Excessive Force
56. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
57. Plaintiffs were seized by the City of St. Louis when its officers intentionally, and by use of force and threat of arrest, chemical agents and/or kettling, terminated their freedom of movement.
58. The use of chemical agents without warning, the threat of arrest, and the employment of kettling without warning was objectively unreasonable and constituted an unlawful seizure and excessive force.
59. Plaintiffs had committed no crime. 60. Plaintiffs posed no threat to the safety of any police officer or any other person. 61. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train
and supervise its officers, that caused the unlawful seizures and use of excessive force. 62. Plaintiffs and members of the Plaintiff Class reasonably fear further unlawful seizures
and excessive force in the future if the observe, record, or participate in protest activity.
WHEREFORE, Plaintiffs respectfully requests this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a temporary restraining order, preliminary injunction, and permanent injunction; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and
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D. Allow such other and further relief as the Court deems just and proper. COUNT III: FOURTEENTH AMENDMENT Procedural Due Process
63. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
64. The due process rights of Plaintiffs other than Plaintiff Mobley were violated when the City of St. Louis, through its agent officers, failed to provide any warning about the deployment of chemical agents, to provide an opportunity to disperse, to leave open routes of egress, and to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a way that a person of ordinary intelligence could understand and comply with.
65. St. Louis Code of Ords. 15.52.010 and 17.16.275, and the City of St. Louis’ policies and customs related to their enforcement, permit arbitrary enforcement at the unbridled discretion of an individual police officer(s), without adequate notice or an adequate opportunity to comply, in a way that does not provide a person of ordinary intelligence with a reasonable opportunity to understand what conduct is permitted and prohibited, and in a way that authorizes and encourages discrimination based on the content of the message of a person engaged in expressive activity.
66. Plaintiffs and members of the Plaintiff Class reasonably fear further violation of the right to due process in the future if the observe, record, or participate in protest activity.
WHEREFORE, Plaintiffs respectfully requests this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a temporary restraining order, preliminary injunction, and permanent injunction requiring the City of St. Louis to declare protests “unlawful
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assemblies” and to order protestors “to disperse” in a constitutional manner and otherwise limit police activities at protests as required by the Constitution; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and D. Allow such other and further relief as the Court deems just and proper.
Respectfully submitted, /s/ Anthony E. Rothert Anthony E. Rothert, #44827 Jessie Steffan, #64861 American Civil Liberties Union of Missouri Foundation 906 Olive Street, Suite 1130 St. Louis, Missouri 63101 (314) 652-3114 (314) 652-3112 (facsimile) arothert@aclu-mo.org jsteffan@aclu-mo.org Gillian R. Wilcox, #61278 406 West 34th Street, Suite 420 Kansas City, Missouri 64111 American Civil Liberties Union of Missouri Foundation (816) 470-9938 gwilcox@aclu-mo.org Attorneys for Plaintiffs
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Case: 4:17-cv-02455-CDP Doc. #: 9 Filed: 09/28/17 Page: 14 of 14 PageID #: 49 Certificate of Service
A copy of the foregoing was delivered by hand to the City Counselor for the City of St. Louis on September 28, 2017.
/s/ Anthony E. Rothert
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 Case: 4:17-cv-02455-CDP Doc. #: 57 Filed: 11/15/17 Page: 1 of 49 PageID #: 382

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MALEEHA AHMAD, et al.,

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Plaintiffs,

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vs.

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CITY OF ST. LOUIS, MISSOURI, )

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Defendant.

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Case No. 4:17 CV 2455 CDP

MEMORANDUM AND ORDER OF PRELIMINARY INJUNCTION

This matter is before the Court on plaintiffs’ motion for temporary

injunction, which is fully briefed. The Court held a hearing on the motion on

October 18, 19, and 23, 2017. Eighteen witnesses (including four of the plaintiffs)

testified on behalf of the plaintiffs, and three witnesses testified for defendant. The

parties also submitted video, photographic, and documentary evidence. By

agreement both sides also submitted additional affidavits and declarations, which

they asked the Court to consider as evidence. Counsel made extensive closing

arguments at the conclusion of the hearing.

After careful consideration of all of the evidence, briefs, and arguments of

the parties, the Court will grant plaintiffs’ motion in certain respects, as set out

more fully below and in the accompanying Preliminary Injunction.

Case: 4:17-cv-02455-CDP Doc. #: 57 Filed: 11/15/17 Page: 2 of 49 PageID #: 383
Findings of Fact1 On September 15, 2017, the Circuit Court for the Twenty-Second Judicial Circuit of Missouri issued its findings and verdict in State of Missouri v. Stockley, Cause No. 1622-CR02213-01. The decision prompted some members of the public to engage in protest activity around the St. Louis metropolitan area, including within the City of St. Louis. The protests, which began on the morning of September 15, 2017 and have continued to occur regularly since the verdict, concern not only the verdict itself but broader issues, including racism and the use of force by police officers. The participants often express views critical of police. This case concerns the response to some of these protests by the St. Louis Metropolitan Police Department2 during the weekend of September 15-17, 2017. Protest activity began shortly after the announcement of the verdict on the morning of September 15, 2017. Protesters assembled in front of the state courthouse downtown near Tucker and Market streets. They did not have a permit to protest because the City of St. Louis does not require, and will not provide, a permit for protests. Police voluntarily blocked off that intersection to vehicular traffic to allow protesters to march in the streets. The protest was peaceful. Later that day, the protesters moved down Tucker toward City Hall and the old police
1 Facts and conclusions determined by a court in granting or denying a preliminary injunction are provisional and nonbinding. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir. 1995). 2 The St. Louis Metropolitan Police Department is a department of the City of St. Louis, which is properly named as the defendant in this case.
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station at Tucker and Clark. Corresponding streets were again blocked by police to allow protesters to march in the streets. Defendant’s witnesses testified that during this time period protesters became violent and began throwing objects at police officers. Plaintiffs’ witnesses testified that the protests remained peaceful, they were not violent, and they did not witness any other protesters become violent.
Eventually protesters blocked one or more city buses containing police officers so the buses could not exit the area. Some protesters, including plaintiff Maleeha Ahmad, were intentionally blocking a bus to prevent it from leaving as an admitted act of civil disobedience. Lieutenant Timothy Sachs, commander in charge of the Civil Disobedience Team, was in charge of deploying defendant’s tactical units and ordered the police officers to get off the bus and form a line to move the protesters away from the bus so it could leave. Police officers had shields for their bodies and on their helmets. Officers from the bicycle unit came to assist, placing their bikes in front of and beside their bodies as they moved forward and ordered the protesters to “Get Back!” The police moved the crowd north of Clark. Some officers sprayed hand held mace3 at and on the protesters, including plaintiff Ahmad. The evidence is disputed as to whether any warnings were given before the deployment of mace at this time. Ahmad was not arrested for refusing to move when ordered to do so. The bus was eventually able to exit the area. Officers were injured in this encounter, and some arrests were made.
3 This is used as a generic term for pepper spray.
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Plaintiff Alison Dreith, who was not blocking the bus, testified that she was maced in the face by a police officer without warning. Darrell Smith gave similar testimony about being maced by officers around this time period without any warning. Dreith and Smith testified that they were not behaving violently, were not violating any orders of the police when they were maced, and were not arrested.
A police vehicle parked in front of the police station was vandalized around 5:00 p.m. by a person jumping on it. The person engaged in the vandalism fled the scene when police approached, and the vehicle was moved. Keith Rose testified that other than the one person who broke the vehicle’s windshield, no one else in the area was participating in violent activity. Rose heard police Sergeant Brian Rossomanno declare an unlawful assembly because the flow of traffic was being impeded. Police were continuing to block streets to prevent vehicular traffic from moving through this area at the time. Rose was immediately maced in the face with no warning by an officer he was filming. No dispersal order had been given at the time. Dana Kelly-Franks testified that around this time police began marching aggressively in a line with their shields held in front of their bodies. She was frightened for herself and children who were in the area. She testified that a police officer knocked her over with a shield and maced her simultaneously without any warning. She stated that she was standing on the sidewalk at Clark
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Case: 4:17-cv-02455-CDP Doc. #: 57 Filed: 11/15/17 Page: 5 of 49 PageID #: 386
and was not behaving violently or engaged in any criminal activity at the time. She was not arrested. Plaintiff Joshua Wedding testified similarly that he was also maced by an officer marching in this line without any warning. Wedding testified that he was not behaving violently, was not violating any orders of the police when he was maced, and was not arrested. Wedding was filming the police at the time he was maced, and that video footage was introduced into evidence as Plaintiffs’ Exhibit 5. It is consistent with his account of events. Eventually the streets were reopened to vehicular traffic as protest activity died down for the evening in the downtown area and moved to the Central West End.
Rose attends many protests as a legal observer, and testified that in his experience, going back to 2014, St. Louis City police officers declare unlawful assemblies, issue dispersal orders, use force, and deploy chemical agents against those protesting police conduct, but not against other types of protesters. Rose attended a women’s march in January of 2017, an LGBTQ march in February of 2017, and an immigrants’ rights march in 2017. Police blocked traffic, sometime for hours, at each of these events to allow the protesters to march in the streets, and no unlawful assembly or dispersal orders were given at any of these protests. These protests were peaceful. Rose testified that he has never engaged in any violent activity at any protest he has attended but has nevertheless been subjected to chemical agents without warning only at protests critical of police. Sarah
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Molina testified that she was subjected to the use of chemical munitions without warning by City police officers in 2015 while protesting police conduct.
Defendant’s tactical unit was deployed to the Central West End on the evening of Friday, September 15, 2017, when protesters converged upon the home of the mayor of the City of St. Louis and began throwing objects at the house and at police officers. This protest was declared an unlawful assembly, police used a loudspeaker to order protesters to disperse, and protesters were warned that chemical munitions could be used if they did not comply. Plaintiffs do not challenge the police response to the protest at the mayor’s house.
Sachs testified that some of these violent protesters left the mayor’s house on Lake and continued to roam the Central West End area. Some officers were injured, including some who received serious injuries, by objects being thrown at them. Sachs believed he heard gun shots and thought that the protesters were deploying chemical agents. He observed property damage. A dumpster fire was reported and attributed to protesters. The suspects for that fire were later arrested. Tactical units formed lines and moved down the streets of the Central West End, seeking to disperse protesters. Megan Green testified that she was protesting at the mayor’s house, heard the order to disperse, and left the area to return to her car. After seeking shelter in a church, she was allowed to pass through the police line at Lindell but as she was walking to her car away from the protest area police in a
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Case: 4:17-cv-02455-CDP Doc. #: 57 Filed: 11/15/17 Page: 7 of 49 PageID #: 388
tactical vehicle drove by and sprayed her with chemical agents without warning. She was not engaged in any criminal activity and was complying with the dispersal order at that time. Legal observer Steven Hoffman testified that he was subjected to chemical agents without warning as he was complying with the dispersal order because he was filming police activity. He testified that he was not engaged in any criminal activity and was complying with all police orders at the time. Central West End business owner Chris Sommers was not participating in the protest activity and testified that he was subjected to chemical agents by police officers because he was standing on the sidewalk outside his restaurant filming police activity and expressing his displeasure at the large police presence in the neighborhood. Rossomanno testified that he threw the inert smoke bomb which landed near Sommers. He stated that he was trying to throw it at protesters further down the street, but that it fell short and did not reach its intended target. An unidentified person standing next to Sommers picked up the smoke bomb and lobbed it back toward police. At that point, chemical agents were intentionally dispersed in Sommers’s direction, and police officers rushed toward Sommers. Sommers and his customers ran inside the restaurant and locked the doors. The police banged on the doors but then left.
On Sunday, September 17, 2017, there were peaceful protests in the downtown St. Louis area during the day and early evening. Around 8:00 p.m. that
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night, there were reports of property being damaged by protesters on Locust and Olive east of Tucker. Sachs sent his tactical team north on Tucker to investigate. Plaintiff William Patrick Mobley testified that at about the same time he was using his cell phone to record police arresting two people across the street on Pine when a police officer approached him and grabbed his cell phone without warning. The officer demanded Mobley sit on the ground and produce identification. He complied. Mobley then testified that officers accessed his phone without his permission, viewed its contents, and deleted the video. He also stated that officers threatened to manufacture evidence to arrest him and accused him of property damage. Eventually, the officers returned Mobley’s cell phone and warned him to leave or he would be arrested.
At the Bank of America at Olive and Tucker, the tactical unit encountered a group of protesters who donned goggles and masks as police approached. They were reaching inside backpacks. The Incident Commander in charge of the scene, Colonel Leyshock, told Sachs to give a dispersal order. Rossomanno then made an announcement over a loudspeaker telling people that an unlawful assembly had been declared, directing people to disperse, and warning them that chemical munitions may be used if they did not comply. Like the other dispersal orders issued by police over the weekend, this order did not specify how far protesters had to go to comply with the directive to leave the area. Sachs testified that he could
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not say “exactly how far would be enough” to comply with this, or any, dispersal order. Sachs testified that the group was told to leave and given a direction to leave in, but he did not make the announcement and could not hear or recall it, either. A tactical vehicle eventually deployed chemical munitions at the group. Several protesters were arrested, but most dispersed. Sachs testified that he was unaware of any property damage occurring in the downtown area after 8:30 p.m. No other witnesses observed any property damage or violence by protesters after this time period, either.
Sachs testified that around 10:00 p.m. the decision was made to make a mass arrest of people remaining in the area of Tucker and Washington, which is three or four blocks away from where the earlier dispersal order was given. Sachs testified that this decision was made because there were large groups of people blocking traffic and Colonel Leyshock did not want to “allow people back into downtown” because he was worried about property damage. This decision was made by Leyshock while he and Sachs were at 13th and Olive, not at Washington and Tucker. Sachs also testified that he believed these were the same people from the bank earlier because some were wearing backpacks, masks, and goggles, which indicated to Sachs that “that they wanted some type of confrontation.” Sachs came up with the idea to block off the four streets surrounding the intersection with tactical units who would block the streets to prevent anyone from exiting and then
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Case: 4:17-cv-02455-CDP Doc. #: 57 Filed: 11/15/17 Page: 10 of 49 PageID #: 391
march up the street, forcing anyone remaining in the area into the intersection for arrest.4 According to defendant’s witnesses, numerous dispersal warnings continued to be given from the time this decision was made until a final dispersal order was given around 11:00 p.m., at which point no people remaining in the area were free to leave. It was Sachs’ stated intention to arrest everyone remaining in the area after the final dispersal order was given. The actual mass arrest did not take place until approximately 11:30 p.m.
The area around the intersection of Tucker and Washington includes residential and commercial uses. Video footage of the intersection taken by Jonathan Ziegler around this time period and introduced as Plaintiffs’ Exhibit 10 shows police continuing to block traffic with police cars and bike officers. It also shows some vehicular traffic moving through the intersection after the final dispersal order was given. A group of four to five individuals can be seen sitting on Tucker, and scattered individuals are, at times, walking or standing in the closed streets. This video does not show a large crowd congregating in the streets. The video shows some people shouting taunts at police officers. No violent activity by protesters can be observed on the video. Some people are wearing or carrying masks and/or goggles, but most are not. The scene appears calm and most people
4 Bicycle police prevented people from exiting the area by going east on Washington, but they allowed people to walk west of them into the intersection where the unlawful assembly had been declared. Tactical units assembled at Olive and Tucker, Dr. Martin Luther King Drive and Tucker, and Washington and 13th by way of St. Charles Street.
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appear relaxed. There is a man with a baby in a stroller, and several people can be seen walking their dogs.
The evidence is disputed regarding whether, and to what extent, additional unlawful assembly/dispersal warnings were given after the initial dispersal order was given at Olive and Tucker and before the 11:30 p.m. mass arrest at Washington and Tucker. Defense witnesses testified that the final warning took place at 11:00 p.m.
Defendant’s witnesses also testified that numerous additional warnings had been issued in and around these intersections over loudspeakers by Rossomanno and that Rossomanno and another officer issued warnings by speaking to people directly on the street as well. Plaintiffs’ witnesses offered conflicting accounts about whether warnings were given and, if so, the number, frequency, and specificity of those warnings. Rose testified that he heard an initial warning to disperse when he arrived at the intersection between 9:30 and 10:00 p.m., tried to leave as directed, but was not permitted to do so by police. Then those police left and people were just standing around talking, and no further warnings were given.
Sachs admitted that police freely allowed people ingress into the area after the initial dispersal order was given. Videographer Demetrius Thomas stopped in the area to film and observe what was happening after the initial dispersal order was given. He testified that he was allowed to enter the area and never heard any
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warnings about an unlawful assembly, dispersal, or chemical munitions. But when he tried to leave later, a police officer stood in front of his car and prevented him from leaving the area. Dillan Newbold testified that he did not arrive in the area to protest until almost 11:00 p.m. and was allowed to enter the area by police. He did not hear any dispersal orders or warnings about chemical munitions before being forced into the intersection for a mass arrest.
No audible dispersal warnings can be heard on Plaintiffs’ Exhibit 10, which lasts 45 minutes and ends with the 11:30 p.m. mass arrest. Ziegler testified that he heard Rossomanno issue one dispersal order telling people to move north on Tucker from Olive around 9:45 or 10:00 p.m. He complied with the request and walked to Washington and Tucker, where he saw police standing around along with people from the neighborhood eating outside. He described the scene as calm. He said some people stopped at the intersection where he stopped, while others continued walking. Ziegler stated that it was very unclear what the police wanted.
Plaintiff Iris Nelson and her husband Alex Nelson live at 13th and Washington. They are not protesters.5 On the evening of September 17, 2017, the Nelsons saw protest activity outside their apartment. They went to the roof of their building around 9:00 p.m. to observe the activity in the street. After about 45
5 Plaintiffs also offered into evidence the affidavit of Brian Baude [Pls.’ Ex. 39], a Lieutenant Colonel in the United States Air Force, who also lives in the area and, like the Nelsons, went out in the neighborhood to observe and was prevented from returning to his home and subsequently arrested and pepper sprayed in the absence of any non-compliance.
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minutes, they left the roof and went outside for a walk. They stayed on the sidewalks and crossed the streets at intersections. They passed police officers on the streets while they were walking around, but no police officer said anything to them or indicated that they should leave the area because an unlawful assembly had been declared and a dispersal order had been given. Aside from a larger than normal police presence, they observed the atmosphere to be like any other normal night in their neighborhood. They saw that some property had been damaged earlier, but did not see anyone damaging property. At some point, the Nelsons heard police tell a group of protesters to leave the area by going north on Tucker or west on Locust. Although the Nelsons did not understand this order to be directed at them, they walked north on Tucker anyway toward the direction of their home. After observing the police cars on Tucker, the Nelsons headed home on Washington. When they were almost home, they were prevented from entering their building by police lined up on Washington. They tried to find a different way to get inside their building, but when they got back to Tucker and Washington they realized they were closed in all four sides by police.6
Upon Sachs’s command, the tactical and bicycle units blocked off all streets, preventing egress from the area, and started marching toward the intersection of Tucker and Washington, forcing everyone into the intersection. Ziegler testified
6 Alex Nelson, a Lieutenant in the United States Air Force with tactical training, realized at some point that they were going to be arrested. He and his wife found discarded masks lying on the ground and picked them up in an attempt to offer some protection from pepper spray.
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that when he realized that everyone was being pushed into the intersection, he and other people, including journalists, looked for a means of egress but that police would not communicate with them or give them any instructions about where to go. Sachs testified that people began to migrate to the northeast corner of the intersection. Plaintiffs’ witnesses testified that they were pushed into a very small area by police to effectuate arrests. Plaintiffs’ Exhibit 10 appears to show people confined in a very small area on the ground. People in the area were not offered a means of egress after the police lines had been struck but before they were arrested because, according to Sachs, “They’d had a chance to leave all evening.” In Sachs’ opinion, everyone in the Tucker and Washington intersection should have left the downtown area and gone home when the first dispersal order was given at 8:30 p.m. at Tucker and Olive.
The evidence is disputed about the circumstances of the mass arrest. As the officers closed in, plaintiffs’ witnesses testified that the police officers began giving commands to either “Get Down!,” “Sit Down!,” or “Lay Down on the Ground!” Police wore shields over their faces and had shields over their bodies. It is difficult to discern any audible police commands being given on Plaintiffs’ Exhibit 10, although some police can be seen pushing people down with their shields. People appear to be confused and frightened.
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All of plaintiffs’ witnesses who were arrested in this mass arrest testified that they complied with all police commands or were unable to comply with the demand to “Lay Down on the Ground!” because the number of people confined in the small space made it impossible to do so. They all also testified that everyone around them appeared to be complying with all police commands as well. Ziegler testified that most people were already on the ground with their hands in the air before police even issued any commands. Iris Nelson testified that she was showered with pepper spray, along with the rest of the crowd, despite complying with all police commands. She also testified that her husband was dragged across the ground, kicked, and had his face shoved into the ground while being maced after his hands were cuffed behind his back. He was compliant with all police commands. Alex Nelson testified similarly. Both were arrested and spent the next day in jail.
Ziegler testified that the entire crowd was misted with pepper spray for no apparent reason. Plaintiffs’ Exhibit 10 shows an unidentified officer walking around with a hand held fogger shooting pepper spray at the arrestees, who all appear to be on the ground and complying with police commands. This officer issues no verbal commands to any arrestee, and no arrestee on the video appears to be resisting arrest. The video shows other officers shouting at people on the ground and making threatening gestures at them with mace. An unidentified man
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lying face down on the ground is picked up by his feet by two officers and dragged across the pavement. It is unclear from the video, but his hands may have been under his body contrary to police commands. Ziegler testified that he was maced in the face multiple times while he was attempting to comply with police commands. He also testified that he was maced in the face after his hands were cuffed behind his back and he was compliant with all police commands.
Newbold testified that he was complying with police commands waiting to get arrested when he was dragged out of the group into the street and an officer ripped off his goggles and bandana while a second officer maced him directly in the face. Newbold testified that he put up no resistance either prior to, during, or after being maced. He also testified that he was cuffed tightly and when asked for the cuffs to be loosened he was told that he deserved it because he was protesting. Alex Nelson testified that his cuffs were cinched as tight as possible and he was hit in the head by an officer who asked him, “Do you like that cocksucker? We’ll see you again tomorrow night.” Both Newbold and Nelson suffered injuries as a result of being cuffed too tightly, and both have sought medical treatment for these injuries.
Plaintiffs and plaintiffs’ witnesses testified that their treatment by police during the weekend of September 15-17, 2017 has made them fearful of participating in future protest activity to the degree they would like for fear of
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being subjected to similar retaliatory conduct by City police officers. Some witnesses testified that their experiences dissuaded them completely from participating in future protests. Many of plaintiffs’ witnesses testified that they have also been subjected to similar treatment by City police officers when participating in past protests criticizing police conduct.
Plaintiffs offered into evidence the affidavit of Elyssa Sullivan, who testified that she was arrested for participating in a protest relating to the Stockley verdict on October 3, 2017. [Pls.’ Ex. 44]. The protest was peaceful. [Id.] She was unable to hear a muffled announcement by police and when she asked an officer what was said, she was told to leave or be arrested. However when she attempted to leave, the police officer blocked her avenue of egress and told her to “shut her bitch ass mouth.” [Id.] She was subsequently arrested. [Id.]
Plaintiffs offered into evidence the affidavit of Heather De Mian, who testified that she was videotaping protest activity on the evening of September 29, 2017, from her wheelchair and was pepper-sprayed in the face by a City police officer without warning when she verbally questioned the police officer’s treatment of another protester. [Pls’ Ex. 43]. She testified that no dispersal order had been given, and that neither she nor any other protester she observed was engaging in violent activity. [Id.] The videotape she made of this incident was
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introduced into evidence as an exhibit to her affidavit and appears to show her and her camera lens being pepper sprayed after she shouts profanely at police.
None of defendant’s three witnesses personally arrested anyone during the mass arrest at the intersection of Washington and Tucker on the evening of September 17, 2017, although all claimed to have observed the arrests. These witnesses also all testified that they saw force being used only on non-compliant arrestees. Rossomanno testified that he only saw two non-compliant individuals get maced. All of defendant’s witnesses denied observing anyone get maced or beaten once they had been cuffed. None of defendant’s witnesses testified that they personally observed any of the plaintiffs or plaintiffs’ witnesses being arrested on the evening of September 17, 2017. All defendants agreed that macing a restrained, compliant individual would amount to an inappropriate use of force.
St. Louis City Ordinance 15.52.010 defines an unlawful assembly as follows:
Any two persons who shall, in this City, assemble together, or, being assembled, shall act in concert to do any unlawful act with force or violence, against the property of this City, or the person or property of another, or against the peace or to the terror of others, and shall make any movement or preparation therefor, and every person present at such meeting or assembly, who shall not endeavor to prevent the commission or perpetration of such unlawful act, shall be guilty of a misdemeanor. [Pls.’ Ex. 46]. Missouri state law defines unlawful assembly in relevant part as follows:
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A person commits the offense of unlawful assembly if he or she knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or the United States with force or violence. Mo. Rev. Stat. §574.040(1). [Pls.’ Ex. 49]. Sachs testified that an individual officer can decide, in his or her discretion, to declare an unlawful assembly, and there are no guidelines, rules, or written policies with respect to when an unlawful assembly should be declared. Sachs further testified that it was the custom or policy of the police department to permit an officer to declare an unlawful assembly if there is any criminal activity taking place, even in the absence of force or violence, depending upon the circumstances. As relevant to the instant motion, St. Louis City Ordinance 17.16.275 prohibits people from congregating in public places in such a manner as to obstruct, impede, interfere, hinder, or delay vehicular or pedestrian traffic. [Pls.’ Ex. 50]. Any person who impedes traffic and refuses to obey an order to disperse, clear or otherwise move is guilty of failing to obey a dispersing order, a Class A misdemeanor. [Id.]. Mo. Rev. Stat. § 574.060 states in relevant part as follows: A person commits the offense of refusal to disperse if, being present at the scene of an unlawful assembly . . . he or she knowingly fails or refuses to obey the lawful command of a law enforcement officer to depart from the scene of such unlawful assembly . . . .
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[Pls.’ Ex. 51].7
Defendant introduced into evidence several Special Orders of the St. Louis
City Metropolitan Police Department which are relevant to the instant motion.
Section XIII of Special Order 1-01 relates to the deployment of chemical agents for
crowd dispersal and was issued in response to a settlement agreement entered in
the case styled Alexis Templeton, et al., v. Sam Dotson, et al., Cause Number
4:14CV2019 CEJ, which was brought in this Court. [33-1; Def.’s Ex. C]. Section
XIII describes chemical agent equipment as including, but not limited to, inert
smoke grenades, Oleoresin Capsicum (OC) and Chlorobenzalmalononitrile (CS)
gas grenades, launched OC, launched CS, pepperballs, and high-capacity, extended
range OC spray. The special order does not, however, define chemical agents.
The Templeton settlement agreement defines chemical agents as “tear gas, inert
smoke, pepper gas, or other chemical agents.” [33-2; Def.’s Ex. E].8 The Special
7 Under Missouri’s statute, “[a]n unlawful assembly causes a disturbance of the public order so that it is reasonable for rational, firm and courageous persons in the neighborhood of the assembly to believe the assembly will cause injury to persons or damage to property and will interfere with the rights of others by committing disorderly acts.” State v. Mast, 713 S.W.2d 601, 603-04 (Mo. Ct. App. 1986). “A person can join ‘an unlawful assembly by not disassociating himself from the group assembled and by knowingly joining or remaining with the group assembled after it has become unlawful.’” White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017) (quoting Mast, 713 S.W.2d at 604) (describing an unlawful assembly under state law as including a group of approximately one hundred people who were throwing objects at the police and noting that the orders to disperse were issued after the crowd turned violent).
8 The Templeton settlement provides that defendant will not enforce any rule, policy, or practice that grants law enforcement officials the authority or discretion to use chemical agents for purposes of dispersing groups of individuals who are engaged in non-criminal activity without first: issuing clear and unambiguous warnings that such chemical agents will be utilized, providing sufficient opportunity to heed the warnings and exit the area, reasonably attempting to minimize the impact of such chemical agents on individuals who are complying with lawful law
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Order provides that “chemical agents will not be used for the purpose of
frightening of punishing individuals for exercising their constitutional rights.” It
goes on to provide “Restrictions on Deployment” as follows:
2. Per a settlement agreement in U.S. District Court, chemical agents will not be used to disperse groups engaged in non-criminal activity without satisfying all of the following elements:
a. The Incident Commander ensures that clear and unambiguous warnings are issued stating that chemical agents will be utilized, in conjunction with a statement about why the area is being cleared, (e.g., “You are impeding the flow of vehicular traffic”);
b. Individuals are provided sufficient opportunity to heed the abovementioned warnings and exit the area;
c. The impact of chemical agents on individuals who are complying with lawful law enforcement commands is minimized; and
d. Ensuring and announcing a means of safe egress from the area that is available to individuals.
3. The above provisions do not apply to situations that turn violent when persons at the scene present an imminent threat of bodily harm to persons, or of damage to property, and when law enforcement officials must defend themselves or other persons or property against such imminent threats.
[33-1; Def.’s Ex. C]. The Special Order requires that an I/LEADS report be
created to document the use of chemical agents to disperse a crowd.
enforcement commands, and ensuring that there is a means of safe egress from the area that is available to the individuals and announcing this means of egress. These provisions do not apply “to situations that turn violent and persons at the scene present an imminent threat of bodily harm to persons or damage to property, and when law enforcement officials must defend themselves or other persons or property against such imminent threat.” It also prevents the use of chemical agents on individuals engaged in non-criminal activity for the purpose of frightening them or punishing them for exercising their constitutional rights. [33-2; Def.’s Ex. E].
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Section IV of Special Order 1-01 is entitled “Use of Non-Deadly Force – Pepper Mace” and its stated purpose is to provide procedures relating to the use of pepper spray. [Def.’s Ex. K]. It states that “pepper mace is provided for use when force is necessary to control belligerent, uncooperative persons for whom verbal controls are ineffective.” [Id.]. Section IV provides as follows for the use of pepper mace:
An officer may use pepper mace: a. to effect a lawful arrest, or to otherwise lawfully control a combative, uncooperative person, when verbal commands and persuasion have been ineffective in inducing cooperation; or b. to control a dangerous animal. 2. Pepper mace will not be used against a person who is being controlled by a neck restraint. 3. Since pepper mace can adversely affect persons in the immediate area of the person against whom it is used, an officer should make every effort to avoid unnecessarily exposing bystanders to pepper mace. [Id.]. Section IV goes on to provide that “since pepper mace is a method of physical control, and may only be used to overcome resistance to an officer’s lawful authority, any arrest in which pepper mace is used will be classified as ‘Resisting Arrest.’” [Id.] Sachs testified that officers were not required to give warnings before using hand held mace (either the large fogger or the smaller cans often carried on officers’ belts) for crowd dispersal because it was not required by Templeton or
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covered under Section XIII of Special Order 1-01. Sachs testified that the police
do not consider hand held mace to be a “chemical munition” which requires a
warning prior to use. He admitted, however, that the chemical was the same, no
matter the method of deployment. Sachs also stated that the macing of individuals
during the “bus incident” was “just to get the dispersal, and we used that for a
dispersal as opposed to just an arrest.” He said that the use of hand held mace in
the bus incident would fall under the exigent circumstances exception. Sachs
testified that officers needed probable cause to arrest someone before macing them,
but that people who are maced are not always arrested because “they flee” or
“we’re not able to take them into custody at the time . . . .”
Defendant also introduced into evidence Special Order 1-06 relating to the
recording of police activity. Its stated purpose is to provide “officers with
guidance for dealing with situations in which they are being recorded, to include
videotaping, audio-taping, or both, by members of the public or the media” . . . “to
ensure the protection and preservation of every person’s Constitutional rights.”
[33-1; Def.’s Ex. D]. Special Order 1-06 states in relevant parts as follows:
Members of the public, including media representatives, have an unambiguous First Amendment right to record officers in public places, as long as their actions do not interfere with the officer’s duties or the safety of officers or others. SLMPD employees will not prevent or prohibit any person’s ability to observe, photograph, and/or make a video recording (with or without simultaneous audio recording) of police activity that occurs in the public domain so long as the person’s location, actions and/or behavior do not created a legitimate, articulable threat to Officer safety, or an unlawful hindrance to successful resolution of the police activity.
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. . . B. GENERAL INFORMATION
1. Persons who are lawfully in public spaces or locations where they have a legal right to be present – such as their home, place of business, or the common areas of public and private facilities and buildings – have a First Amendment right to record things in plain sight or hearing, to include police activity. Police may not threaten, intimidate, or otherwise discourage or interfere with the recording of police activities. Officers should assume that they are being recorded at all times when on duty in a public space.
2. As a result, officers must understand that any bystander has an absolute right to photograph and/or video record the enforcement actions of any Police Officer so long as the bystander’s actions do not:
a. Place the safety of the bystander, or of any Police Officer(s), witness(es), victim(s), or suspect(s), in jeopardy;
b. Hinder the execution or performance of an Officer’s official duties;
c. Interfere with or violate and law, ordinance or code, criminal or traffic;
d. Obstruct police actions while engaging in a recording. For example, individuals may not interfere through direct physical intervention, tampering with a witness, or by persistently engaging an officer with questions or interruptions. The fact that recording and/or overt verbal criticism, insults, or name-calling may be annoying, does not of itself justify an officer taking corrective or enforcement action or ordering that recording be stopped, as this is an infringement on an individual’s right to protected speech;
e. Unreasonably impede the movement of emergency equipment and personnel or the flow of vehicular or pedestrian traffic; or
f. Attempt to incite an immediate breach of the peace or incite others to commit a violation of the law.
C. ARREST
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1. Persons who violate the foregoing restrictions should be informed that they are engaged in prohibited activity and given information on acceptable alternatives, where appropriate, prior to making an arrest.
2. Arrest of a person who is recording officers in public shall be related to an objective, articulable violation of the law unrelated to the act of recording. The act of recording does not, in itself, provide grounds for detention or arrest.
3. Arrest of an individual does not provide an exception to the warrant requirement justifying search of the individual’s recording equipment or media. While equipment may be seized incident to an arrest, downloading, viewing, or otherwise accessing files requires a search warrant. Files and media shall not be erased under any circumstances.
D. CONFISCATION OF RECORDING DEVICES AND MEDIA
1. Recording equipment may not be confiscated unless the recording party is arrested, and the recording is to be held as evidence for the crime in which the recording party was arrested. Additionally, officers may not order an individual to show recordings that have been made of enforcement actions or other police operations.
[33-1; Def.’s Ex. D].
Plaintiffs allege that they were subjected to excessive uses of force and other
unconstitutional conduct in retaliation for the exercise of their first amendment
rights during these protests. Plaintiffs allege that they were pepper-sprayed and
subjected to chemical agents with no warning while engaging in non-violent
activity in compliance with all police commands. Plaintiffs who were arrested on
the evening of September 17, 2017, also allege that they were subject to excessive
uses of force during the arrests. Plaintiffs allege that they were subjected to
retaliatory treatment for filming police conduct and arrested for failing to disperse
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without being given appropriate warnings and the required avenues of egress. They also allege that police officers arbitrarily exercised their discretion to declare an “unlawful assembly” when there was no force or violence, contrary to the requirements of city ordinance and Missouri law. Plaintiffs allege that these actions are all taken pursuant to the custom and policies of defendant. Plaintiffs seek, on behalf of themselves and a class of similarly situated individuals, to enjoin certain police practices in response to protest activity.
Plaintiffs’ claims are brought pursuant to 42 U.S.C. § 1983. Count I alleges that defendant has a custom and policy of retaliating against plaintiffs and others for engaging in expressive activity in violation of the First Amendment. In Count II, plaintiffs allege that they were subjected to unlawful seizures and excessive uses of force in violation of the Fourth Amendment in accordance with the custom and policy of defendant and because defendant failed to adequately train and supervise its police officers. Count III alleges that it is defendant’s custom and policy to enforce its ordinances regarding unlawful assemblies and dispersal orders in a manner which violates the Due Process Clause of the Fourteenth Amendment. Plaintiffs contend that the ordinances are unconstitutional on their face and as applied by defendant. Plaintiffs do not bring individual excessive force claims against named or unnamed police officers in this action, and they do not seek money damages.
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Defendant denies any use of excessive force or unconstitutional conduct by police officers responding to the protests. Defendant maintains that it has appropriate policies in place to respond to protest activities and that those policies were followed throughout the weekend of September 15-17, 2017. Defendant argues that it was necessary at times to declare an “unlawful assembly” and that any subsequent orders to disperse complied with the police department’s policies, including with respect to providing warnings before using chemical agents. Defendant also denies that police officers engaged in retaliatory activity, but alternatively argues that if any such activity took place it was not in accordance with defendant’s policies.
Conclusions of Law Federal Rule of Civil Procedure 65 gives courts the authority to grant preliminary injunctions. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Munaf v. Green, 553 U.S. 674, 689-90 (2008)). The “issuance of a preliminary injunction depends upon a ‘flexible’ consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.” Planned Parenthood of Minn., N.D. v. Rounds, 530 F.3d 724, 729 n.3
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(8th Cir. 2008) (quoting Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). “At the base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113.
Although defendant asserts that plaintiffs do not have standing to bring their claims, the Court concludes that the chilling of plaintiffs’ speech as testified to during the hearing constitutes an injury in fact sufficient to confer First Amendment standing. See 281 Care Committee v. Arneson, 638 F.3d 621, 627 (8th Cir. 2012).
With regard to showing a likelihood of success on the merits, plaintiffs argue that they need only show a “fair chance of prevailing” on their claims. This is the normal standard for preliminary injunctions, but where plaintiffs seek to enjoin enforcement of a “validly enacted statute,” they must meet the “more rigorous” standard of showing that they are “likely to prevail on the merits.” 1-800-411-Pain Referral Serv., LLC v. Otto, 744 F.3d 1045, 1054 (8th Cir. 2014) (citing Rounds, 530 F.3d at 732). Plaintiffs’ amended complaint alleges that the City ordinances “are unconstitutionally vague on their face and as applied to Plaintiffs and do not provide fair notice to a reasonable person as to how to comply with the law.” [9 at ¶ 36]. The evidence and briefing on the preliminary injunction motion, however, focus on the way the ordinances and other customs and policies of the City have
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been applied to protests challenging police action. Based on the evidence and briefing in this case, the Court concludes that plaintiffs can meet either standard and will therefore apply the more rigorous “likely to prevail on the merits” standard to each of plaintiffs’ claims.
In Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), the United States Supreme Court held that municipalities may be liable for injunctive relief under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the municipality. Id. at 690. To establish liability for a custom, plaintiff must show that there is: (1) a continuing, widespread, and persistent pattern of unconstitutional misconduct, (2) deliberate indifference or tacit authorization of such conduct by policymaking officials after notice of the conduct, and (3) that the custom caused the violation of plaintiff’s constitutional rights. See Johnson v. Douglas Cnty. Med. Dept., 725 F.3d 825, 828 (8th Cir. 2013); Abdullah v. County of St. Louis, Mo., 52 F. Supp. 3d 936, 944 (E.D. Mo. 2014).
The First Amendment declares that States “shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.” U.S. Const. amend. I. “[T]he First Amendment reflects a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited,
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robust, and wide-open.’” Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs are engaging in speech in a traditional public forum. See United States v. Grace, 461 U.S. 171, 177 (1983) (streets, sidewalks, and parks are public places historically associated with the free exercise of expressive activities and considered, without more, to be public forums). “In such places, the government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id. (internal quotation marks and citations omitted).
“The very idea of government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for the redress of grievances.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (internal quotation marks and citation omitted). “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” Id.
The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by
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peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. Id. at 365 (internal quotation marks and citation omitted). “It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime.” Id. “The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982). Numerous federal circuit courts of appeals have recognized a general First Amendment right to record police performing their duties in public, subject to certain limitations. See, e.g., Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595–96 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also, Hoyland v. McMenomy, 185 F. Supp. 3d 1111, 1124 (D. Minn. 2016), aff’d, 869 F.3d 644 (8th Cir. 2017). For purposes of deciding this motion, the Court assumes that recording police activity is considered a protected first amendment right, subject to the limitations set out in paragraph 2 of Special Order 1-06. “[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Hoyland v. McMenomy,
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869 F.3d 644, 655 (8th Cir. 2017) (internal quotation marks and citation omitted).
“Criticism of public officials lies at the very core of speech protected by the First
Amendment.” Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002)
(internal quotation marks and citation omitted). “The freedom of individuals
verbally to oppose or challenge police action without thereby risking arrest is one
of the principal characteristics by which we distinguish a free nation from a police
state.” City of Houston, Tex. v. Hill, 482 U.S. 451, 462-63 (1987).
To sustain a First Amendment retaliation claim, plaintiffs must show that
they engaged in protected activity, the police officers acted in a way that would
chill a person of ordinary firmness in continuing the protected activity, and the
officer’s actions were motivated at least in part by plaintiffs’ engaging in protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014).9 In claims of
retaliatory arrest, plaintiffs must also show that the officer lacked at least arguable probable cause to arrest plaintiffs.10 Id.
“A fundamental principle in our legal system is that laws which regulate
persons or entities must give fair notice of conduct that is forbidden or required.”
9 Pepper spraying someone in the face would chill a person of ordinary firmness. Kopp, 754 F.3d at 602. 10 “[A] warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.” Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010). Where the totality of the circumstances at the time of an arrest would allow a reasonable officer to believe the suspect had or was committing a crime, there is probable cause. Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir. 2011). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Ulrich v. Pope County, 715 F.3d 1054, 1059 (8th Cir. 2013) (internal quotation marks and citation omitted).
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FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). “A statute or ordinance violates the Due Process Clause if it fails to give fair warning that the allegedly violative conduct was prohibited.” Stahl v. City of St. Louis, Mo., 687 F.3d 1038, 1040 (2012) (internal quotation marks and citation omitted). “Such a law offends due process because it ‘may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.’” Id. (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality opinion)(citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
The Due Process Clause’s proscription against vague regulations is stronger when the regulation in question implicates the First Amendment. “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” Fox Television Stations, Inc., 567 U.S. at 253-54. That is so because “[s]peech is an activity particularly susceptible to being chilled, and regulations that do not provide citizens with fair notice of what constitutes a violation disproportionately hurt those who espouse unpopular or controversial beliefs.” Stahl, 687 F.3d at 1041. “Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the
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forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 (internal quotation marks and citations omitted). An ordinance which accords to police “the full discretion . . . to determine” whether a violation has occurred “entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat, . . . furnishes a convenient tool for harsh and discriminatory enforcement by prosecuting officials against particular groups deemed to merit their displeasure, . . . and confers on police a virtually unrestrained power to arrest and charge persons with a violation.” Kolender, 461 U.S. at 357-58.
A person is seized for Fourth Amendment purposes when an officer by means of physical force “terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007). (internal quotation marks and citations omitted). The right to be free from excessive force in the context of an arrest is clearly established under the Fourth Amendment. Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006). “The test is whether the amount of force used was objectively reasonable under the particular circumstances.” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (internal quotation marks and citation omitted). Relevant circumstances include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,
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396 (1989). “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers violates the Fourth Amendment.” Id. (internal quotation marks and citation omitted). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” Id. at 396-97. “[F]orce is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.” Brown, 574 F.3d at 499. “The use of any force by officers simply because a suspect is argumentative, contentious, or vituperative is not to be condoned.” Bauer v. Norris, 713 F.2d 408, 412 (8th Cir. 1983) (internal quotation marks and citation omitted). “[T]he use of . . . gratuitous force against a suspect who is handcuffed, not resisting, and fully subdued is objectively unreasonable under the Fourth Amendment.” Krout v. Goemmer, 583 F.3d 557, 566 (8th Cir. 2009).
After due consideration of the foregoing authorities and the evidence presented at this preliminary stage of the proceedings, the Court concludes that
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plaintiffs are likely to prevail on the merits of their claims that the policies or customs of defendant discussed below violate the constitutional rights of plaintiffs.
Plaintiffs have presented sufficient evidence demonstrating that they are likely to prevail on their claim that defendant’s custom or policy is to permit any officer to declare an unlawful assembly in the absence of the force or violence requirement of St. Louis City Ordinance 17.16.275 and Mo. Rev. Stat. § 574.060, in violation of plaintiffs’ First and Fourth Amendment rights. Although defendant argues that it is usually someone such as the Incident Commander who makes such a determination, Sachs admitted that defendant has issued no guidelines with respect to when, how, or who should declare an unlawful assembly with respect to protest activity. All officers testified that it was within their sole discretion to declare an unlawful assembly whenever they observed a group violating any law, whether peaceably or not, including but not limited to merely congregating on sidewalks or on streets closed by police for protest activity. While unlawful assemblies were declared at times in response to violent activity by protesters (for example, at the mayor’s house on the evening of September 15, 2017), plaintiffs presented evidence that they were also declared at other times when it was not “reasonable for rational, firm and courageous persons in the neighborhood of the assembly to believe the assembly will cause injury to persons or damage to property and will interfere with the rights of others by committing disorderly acts,”
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Mast,11 713 S.W.2d at 603-04, such as on September 17, 2017, and October 3, 2017.
Plaintiffs’ evidence of the activities in the Washington and Tucker intersection on September 17, 2017, shows no credible threat of force or violence to officers or property in this mixed commercial and residential area. No property damage or violence was observed or reported by any officers after 8:30 p.m., and the scene at the intersection was calm. Some people continued to engage in protest activity by voicing their displeasure with police. Other people, such as the Nelsons and Baude, were in the area for unrelated reasons. In the video most people can be seen standing on sidewalks, but even those few people sitting or standing in closed streets are not observed to block the flow of traffic. Sachs testified that the decision was made because they did not want to “allow people back into downtown” and defense counsel stated during closing arguments that “the police have the right to tell people, at this point, we’re done for the evening; there’s no – no more assembling; this assembly is over.”
Plaintiffs have presented sufficient evidence for purposes of awarding preliminary injunctive relief that defendant’s custom or policy of committing discretionary authority to police officers to declare unlawful assemblies in the absence of any threat of force or violent activity provides no notice to citizens of
11 Although Mast articulated this standard when applying Missouri’s statute, given that both the statute and the ordinance use the same “force or violence” language, and in the absence of any authority provided by the parties as to how Missouri courts have interpreted the City ordinance, the Court will apply this standard in its analysis.
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what conduct is unlawful, and it permits officers to arbitrarily declare “there’s no more assembling.” This custom or policy permits officers to exercise their discretion in such a manner as to impermissibly curtail citizens’ first amendment rights of assembly and free speech based upon nothing more than a subjective determination by an officer that “we’re done for the evening,” or when the content of the speech is deemed objectionable, or because an earlier assembly in a different location was declared unlawful. Plaintiffs have presented sufficient evidence at this stage of the proceedings that this discretion was in fact exercised in such a manner in violation of plaintiffs’ constitutional rights. Defendant’s custom or policy with respect to unlawful assemblies accords to police “the full discretion . . . to determine” whether a violation has occurred, “entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat, . . . furnishes a convenient tool for harsh and discriminatory enforcement by prosecuting officials against particular groups deemed to merit their displeasure, . . . and confers on police a virtually unrestrained power to arrest and charge persons with a violation.” Kolender, 461 U.S. at 357-58. Such custom or policy cannot meet constitutional standards for definiteness and clarity and runs afoul of the First Amendment’s guarantees of free speech, freedom of assembly, and the right to petition the government for redress, as well as the due process protections of the Fourteenth
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Amendment. See Fox Television, 132 S. Ct. at 2317; Kolender, 461 U.S. at 360; Stahl, 687 F.3d at 104; Abdullah, 52 F. Supp. 3d at 946.
Similarly, plaintiffs have presented sufficient evidence demonstrating that they are likely to prevail on their claim that defendant’s custom or policy is to permit officers to issue vague dispersal orders to protesters exercising their first amendment rights in an arbitrary and retaliatory way and then to enforce those dispersal orders without sufficient notice and opportunity to comply before being subjected to uses of force or arrest, in violation of plaintiffs’ First and Fourth Amendment rights. Defendant’s witnesses all testified that dispersal orders simply direct people to leave “the area” and do not define “the area.” Sachs testified that he could not testify “exactly how far would be enough” to comply with this, or any, dispersal order. Sachs could not define “the area” people were ordered to disperse from on September 15, 2017, September 17, 2017, or at any other time.
Plaintiffs presented testimony of witnesses who stated that they were complying with orders to leave the Central West End on the evening of September 15, 2017, but were nevertheless subjected to the use of chemical munitions despite crossing police lines and reasonably believing they were outside the area covered by the dispersal orders. These witnesses stated that no warnings were given prior to the deployment of chemical agents. Plaintiffs offered testimony that police
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officers similarly deployed chemical agents against protesters critical of police conduct in 2015 with no warning.
Plaintiffs presented sufficient, credible evidence for purposes of awarding preliminary injunctive relief that defendant has a custom or policy, in the absence of exigent circumstances,12 of issuing dispersal orders to citizens engaged in expressive activity critical of police which are either too remote in time and/or too vaguely worded to provide citizens with sufficient notice and a reasonable opportunity to comply, inaudible and/or not repeated with sufficient frequency and/or by a sufficient number of officers to provide citizens with sufficient notice and a reasonable opportunity to comply, contradictory and inconsistent, not uniformly enforced, and retaliatory.
With respect to the evening of September 17, 2017, plaintiffs presented testimony of numerous witnesses who never heard any dispersal orders before they were arrested for failing to disperse and of witnesses who reasonably thought they had complied with the dispersal order by moving further down the street because the order did not indicate how far they should disperse. Some of plaintiffs’ witnesses reasonably believed that any dispersal order did not apply to them because they were standing near police officers who never told them to disperse
12 As used by the Court herein, the term “exigent circumstances” means those circumstances described by Section XIII of Special Order 1-01, which are situations “that turn violent when persons at the scene present an imminent threat of bodily harm to persons, or of damage to property, and when law enforcement officials must defend themselves or other persons or property against such imminent threats.”
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and the order either did not specify why it was being given or did not, by its terms, apply to conduct being engaged in by the witnesses. Other witnesses followed the directions of the dispersal order but were not permitted to leave the area when they attempted to comply. Additionally, witnesses offered similar testimony regarding vague, inaudible dispersal orders, the lack of opportunity to comply with dispersal orders, and the refusal to offer or permit egress once the order was given regarding a protest on October 3, 2017. Defendant’s custom or policy cannot meet constitutional standards for definiteness and clarity and runs afoul of the First Amendment’s guarantees of free speech, freedom of assembly, and the right to petition the government for redress, as well as the due process protections of the Fourteenth Amendment. See Fox Television, 132 S. Ct. at 2317; Kolender, 461 U.S. at 360; Stahl, 687 F.3d at 104; Abdullah, 52 F. Supp. 3d at 946.
Plaintiffs have also presented sufficient evidence demonstrating that they are likely to prevail on their claim that defendant has a custom or policy of using chemical agents without warning on citizens engaged in expressive activity that is critical of police or who are recording police in retaliation for the exercise of their first amendment rights, in violation of the First, Fourth, and Fourteenth Amendments.
Sachs and the other officers testified that Section XIII of Special Order 1-01 relating to the deployment of chemical munitions for crowd dispersal does not
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apply to the use of hand held mace. The order, however, does not specifically exempt hand held mace from within its purview, nor does the settlement agreement reached in Templeton. Defendant’s witnesses did not testify as to any rationale for this distinction, and the Court fails to discern one based on the preliminary evidence presented at the hearing. Pepper spray is a “chemical agent,” no matter its method of deployment.
Plaintiffs have presented sufficient, credible testimony and video evidence from numerous witnesses that they were maced without warning in the absence of exigent circumstances while they were not engaging in violent activity and either were not in defiance of police commands (because none were given) or were complying with those commands. The evidence showed that police used hand held mace without warnings regularly in situations where Section XIII of Special Order 1-01 and the Templeton settlement agreement require warnings. Neither the Special Order nor Templeton are limited to situations in which an unlawful assembly is first declared. Plaintiffs also introduced sufficient, credible evidence of people being maced while simply recording police activity and/or voicing criticism of officers and for no readily apparent, legitimate law enforcement purpose, contrary to the official written policy regarding recording set out in Special Order 1-06.
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To the extent that defendant attempts to distinguish chemical munitions from the use of hand held pepper spray as an appropriate authorized “compliance tool” under Section IV of Special Order 1-01, the evidence does not support the argument. There was no evidence that the spray was used to “effect a lawful arrest” or that these witnesses were “combative” or not complying with lawful orders as set out in Section IV of Special Order 1-01. Sachs admitted that the use of pepper spray requires probable cause to arrest. Plaintiffs have presented sufficient evidence at this stage of the proceedings that almost all of these witnesses13 were not engaged in criminal activities and so there was no probable cause to arrest them when they were maced, and they were never warned that they were subject to chemical agents or arrest for disobeying police orders. Although Sachs hypothesized that exigent circumstances, flight, or other reasons might prevent officers from arresting certain individuals who were maced, he had no personal knowledge or evidence that any of these situations were actually present when any of these witnesses were maced. Moreover, the evidence shows that hand-held mace is used as a tool to seek compliance with a dispersal order. Defendant has articulated no rational, discernable distinction between hand-held mace and mace deployed from chemical agent equipment when being used for crowd control purposes. Defendant’s custom or policy of authorizing the use of hand-held mace against non-violent protesters with no warning or opportunity to
13 The Court excludes plaintiff Ahmad from its evaluation of this claim.
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comply and in the absence of probable cause or exigent circumstances impermissibly circumvents the protections afforded by the Templeton settlement agreement and vests individual officers with unfettered discretion to exercise that authority in an arbitrary and retaliatory manner in violation of constitutional rights.
Plaintiffs’ evidence — both video and testimony – shows that officers have exercised their discretion in an arbitrary and retaliatory fashion to punish protesters for voicing criticism of police or recording police conduct. When all of the evidence is considered, plaintiffs have met their burden of showing that they are likely to succeed on their claim that defendant has a custom or policy of deploying hand held pepper spray against citizens engaged in recording police or in expressive activity critical of police in retaliation for the exercise of their first amendment rights, in violation of the First, Fourth, and Fourteenth Amendments.
Plaintiffs have also presented sufficient evidence at this preliminary stage of the proceedings that the aforementioned customs or policies of defendant caused the violations of plaintiff’s constitutional rights.
“When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011). That is because “it is well-settled law that a loss of First Amendment freedoms, for even minimal periods of time, unquestionably
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constitutes irreparable injury” and “it is always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 691 (8th Cir. 2008) (internal quotation marks and citations omitted), overruled on other grounds, Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (2012).
The Court concludes that the remaining factors weigh in favor of issuing preliminary injunctive relief. Plaintiffs have shown sufficient irreparable injury in the form of the loss of First Amendment freedoms if injunctive relief is not granted because protests are ongoing and expected to continue. Likewise, the public interest favors the protection of core First Amendment freedoms. See Iowa Right to Life Comm. v. Williams, 187 F.3d 963, 970 (8th Cir. 1990). Both defendant and the public have a legitimate interest in maintaining order and protecting officer and public safety. However, there is no evidence that these interests would be harmed if limited injunctive relief is awarded to prevent defendant from declaring unlawful assemblies and issuing vague, arbitrary dispersal orders in the absence of force or violent activity by protesters, as defendant has no significant interest in enforcing unconstitutional customs or policies. Moreover, the injunctive relief with respect to the use of chemical agents and retaliatory conduct closely resembles that previously agreed to by defendant in Templeton, and there was no argument or evidence that such an order has prevented the City from pursuing legitimate law enforcement objectives. Neither the public interests nor the interests of the
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defendant favor restricting core constitutional rights of assembly and speech in the arbitrary, vague, and retaliatory manner caused by defendant’s customs and policies.
Pursuant to Rule 65(c), Fed. R. Civ. P., the Court “may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Plaintiff has asked the court set bond in the amount of $100, and defendant did not address the issue of the amount of a bond. The Court will grant plaintiffs’ request to set the bond in the amount of $100.
Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion for preliminary injunction [10] is granted and defendant City of St. Louis and its agents, servants, employees, and representatives will not enforce any rule, policy, or practice that grants law enforcement officials the authority or discretion to: 1) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 when the persons against whom it would be enforced are engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence;
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2) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 or enforce St. Louis Code of Ords. §17.16.275(A) and (E) for the purpose of punishing persons for exercising their constitutional rights to engage in expressive activity;
3) Use chemical agents, including, but not limited to, mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances (collectively “chemical agents”), whatever the method of deployment, against any person engaged in expressive, non-violent activity in the City of St. Louis, in the absence of probable cause to arrest the person and without first issuing clear and unambiguous warnings that the person is subject to arrest and such chemical agents will be used and providing the person sufficient opportunity to heed the warnings and comply with lawful law enforcement commands or as authorized in paragraph 5 below;
4) Use or threaten to use chemical agents, whatever the method of deployment , against any person engaged in expressive, non-violent activity in the City of St. Louis, for the purpose of punishing the person for exercising constitutional rights; and
5) Issue orders or use chemical agents, whatever the method of deployment, for the purpose of dispersing person(s) engaged in expressive, non-violent activity in the City of St. Louis without first: specifying with reasonable particularity the
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area from which dispersal is ordered; issuing audible and unambiguous orders in a manner designed to notify all persons within the area that dispersal is required and providing sufficient warnings of the consequences of failing to disperse, including, where applicable, that chemical agents will be used; providing a sufficient and announced amount of time which is proximately related to the issuance of the dispersal order in which to heed the warnings and exit the area; and announcing and ensuring a means of safe egress from the area that is actually available to all person(s);
Provided, however, that paragraphs (3) and (5) above do not apply to situations where persons at the scene present an imminent threat of violence or bodily harm to persons or damage to property, or where law enforcement officials must defend themselves or other persons or property against imminent threat of violence.
IT IS FURTHER ORDERED that this preliminary injunction becomes effective upon plaintiffs’ posting security in the amount of $100 with the Clerk of Court, and remains in effect until further order of this Court.
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A separate Preliminary Injunction in accord with this Memorandum and Order is entered this date, as is a separate order referring this case to mediation.
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE Dated this 15th day of November, 2017.
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 Case: 4:17-cv-02455-CDP Doc. #: 90 Filed: 09/05/18 Page: 1 of 15 PageID #: 1208

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

MALEEHA AHMAD,

)

)

W. PATRICK MOBLEY,

)

)

and

)

)

BRIAN BAUDE,

)

)

on behalf of themselves and a class of

)

similarly situated individuals,

)

No. 4:17-cv-2455-CDP

)

Plaintiffs,

)

)

v.

)

)

CITY OF ST. LOUIS, MISSOURI,

)

)

Defendant.

)

SECOND AMENDED COMPLAINT FOR PROSPECTIVE RELIEF Plaintiffs allege as follows:
INTRODUCTION 1. Plaintiffs bring this civil-rights class action against the City of St. Louis, Missouri for retaliating against persons engaging in First Amendment-protected activity; for interfering with the right to record police officers in public places; for unreasonably seizing them and applying excessive force; and for violating procedural due process rights by kettling and gassing and spraying them with chemical agents designed to cause pain and confusion without constitutionally adequate warning.
PARTIES 2. Plaintiff Maleeha Ahmad is a Missouri resident who lives in the City of St. Louis.

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3. Plaintiff W. Patrick Mobley is a Missouri resident who lives in the City of St. Louis. 4. Plaintiff Brian Baude is a Missouri resident who lives in the City of St. Louis. 5. Defendant City of St. Louis is a municipal corporation of the State of Missouri.
JURISDICTION AND VENUE 6. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983, the Fourteenth Amendment to
the United States Constitution, and the First and Fourth Amendments, as incorporated as against States and their municipal divisions through the Fourteenth Amendment. 7. The jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1331 because Plaintiffs’ action arises under the Constitution of the United States and § 1343(a)(3) to redress the deprivation of rights secured by the Constitution of the United States. 8. Venue is proper in the United States District Court for the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims occurred in the City of St. Louis. 9. Divisional venue is proper in the Eastern Division because the a substantial part of the events leading to the claims for relief arose in the City of St. Louis and Defendant resides in the Eastern Division. E.D. Mo. L.R. 2.07(A)(1), (B)(1).
FACTS 10. In December 2011, then-St. Louis police officer Jason Stockley (who is white) shot and
killed St. Louis resident Anthony Lamar Smith (who was African American), whom Stockley and his partner had initially stopped on suspicion of involvement in a drug transaction. 11. In May 2016, Officer Stockley was charged with first-degree murder for Smith’s death.
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12. On Friday, September 15, 2017, after a four-day bench trial, Missouri Circuit Judge Timothy Wilson acquitted Officer Stockley of first-degree murder and its lesser included homicide offenses.
13. Many community members disagreed with the verdict. 14. Public protests began later that day at multiple locations in St. Louis and surrounding
communities, some spontaneous and others more organized. 15. A common theme of the protests has been that, in the view of the protestors, the verdict
reflected institutional racism and unwarranted bias in favor of law enforcement officers. 16. St. Louis Metropolitan police officers have amassed at several protests wearing tactical
dress, including helmets, and carrying batons, full-body riot shields, and chemicals, such as tear gas, skunk, inert smoke, pepper gas, pepper pellets, xylyl bromide, and/or similar substances (collectively, “chemical agents”). 17. On multiple occasions, police officers have without warning deployed chemical agents against individuals observing, recording, or participating in protest activity, including Plaintiffs Ahmad and Baude, including but not limited to the following occasions:
a. Friday afternoon near the intersection of Clark and Tucker Avenues b. Friday evening near the intersection of McPherson and Euclid Avenues c. Friday evening near the intersection of Waterman and Kingshighway Boulevards d. Friday evening near the intersection of Euclid and Maryland Avenues e. Friday evening near the intersection of Lindell and Kingshighway Boulevards f. Friday evening near the intersection of Euclid Avenue and Pershing Place g. Sunday evening near the intersection of Tucker Boulevard and Washington
Avenue
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18. On Sunday night, St. Louis Metropolitan police officers employed a tactic known as “kettling” at the intersection of Tucker Boulevard and Washington Avenue.
19. Police officers had—some 45 minutes earlier—ordered some protestors to “disperse” at a location some distance away.
20. However, police officers then permitted protestors, as well as other pedestrians not participating in or observing the protest, to enter and exit the area at will during the interim, including allowing people to move into intersection of Tucker and Washington.
21. Without further instruction of warning, or any instruction or warning at all at the intersection, police officers surrounded individuals observing, recording, or participating in protest activing, including Plaintiff Baude, cutting off all routes of egress—including via any sidewalk—and prohibiting the people trapped inside from leaving.
22. Police officers, who were wearing protective equipment, then without warning deployed chemical agents at the individuals caught in the kettle, including Plaintiff Baude.
23. Some individuals caught in the kettle had been wearing goggles because they feared the deployment of chemical agents.
24. Police officers roughly removed the goggles and then sprayed those individuals directly in the face.
25. Police officers appear to believe that they are authorized by St. Louis Code of Ords. 15.52.010 and 17.16.275 to declare protests “unlawful assemblies” and to order protestors “to disperse.”
26. On some occasions, the protests did not meet the ordinance definition of an unlawful assembly.
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27. Dispersal orders, even when given, were too remote in time and distance for a person of ordinary intelligence, including Plaintiffs, to understand where and when they applied.
28. Throughout the weekend, on multiple occasions, police officers commanded protestors and observers to cease recording video and photographs and on some occasions deleted, or commanded to be deleted, video and photographs already recorded, including video recorded by Plaintiff Mobley.
29. Police officers intentionally exposed Plaintiffs Ahmad and Baude to chemical agents without notice or the opportunity to disperse. MUNICIPAL ALLEGATIONS
30. The City of St. Louis has a custom or policy of deploying chemical agents against protestors without warning and has done so on occasions before these particular protests, including in March 2012 near the intersection of Grand Avenue and I-44, in October 2014 near the intersection of Vandeventer and Manchester/Chouteau Avenues and near the intersection of Arsenal Street and Grand Avenue, in November 2014 near the intersection of Arsenal Street and Grand Avenue, and in August 2015 near the intersection of Walton Avenue and Page Boulevard.
31. The City of St. Louis has a custom or policy of commanding protestors to disperse without providing sufficient routes of egress and without instructions about where, how quickly, and how far away individuals must go to comply with that order, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
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32. The City of St. Louis has a custom or policy of enforcing Ord. 15.52.010, defining an unlawful assembly, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
33. The City of St. Louis has a custom or policy of enforcing Ord. 17.16.275, describing the offense of failure to disperse, in an unconstitutional way, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
34. The City of St. Louis’s custom or policy of failing to publish general orders, special orders, and temporary orders exacerbates the confusion among both police officers and residents about how Ords. 15.52.010 and 17.16.275 can and will be enforced and thereby is a moving force behind the repeated violations of protestors’ First Amendment rights.
35. Both ordinances are unconstitutionally vague on their face and as applied to Plaintiffs and do not provide fair notice to a reasonable person as to how to comply with the law.
36. The City of St. Louis has a custom or policy of retaliating against protestors expressing disapproval of the actions of law enforcement officers, and has done so on occasions before these particular protests, including in 2014 near the intersection of Arsenal Street and Grand Avenue and in 2015 near the intersection of Walton Avenue and Page Boulevard.
37. The City of St. Louis has a custom or policy of commanding persons who are recording law enforcement activity to cease recording when those persons are not interfering with
6

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any officer, to delete or command such persons to delete recordings, and/or to confiscate recording devices or otherwise render them inoperable by the person who was recording. 38. The City of St. Louis has failed to supervise and train its officers to deploy chemical agents in a constitutional way, to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a constitutional way, to permit recording of police actions, and to avoid restricting freedom of movement unjustifiably, and has been on notice that the lack of training and supervision have resulted in the deprivation of constitutional rights since at least 2014. Among other things, failures of supervision include:
a. declining to investigate alleged violations of protestors’ First Amendment rights of speech, assembly, and opportunity to petition the government about their grievances and Fourth Amendment rights to be free from excessive force and unlawful seizure;
b. classifying citizen complaints as “Employee Misconduct Reports” and thereby never conducting any criminal investigation into police;
c. failing to voluntarily share documents with, or to give subpoena power to, the Civilian Oversight Board; and
d. failing to discipline officers who patrol protests yet refuse or fail to position their name tags in a manner visible to protestors.
39. Plaintiffs have not attended protests they otherwise would have participated in and/or observed because of their reasonable fear that they will be exposed to chemical agents without warning, be retaliated against for recording police officers, and/or have their freedom of movement unlawfully restricted, and because St. Louis Code of Ords.
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15.52.010 and 17.16.275 have been enforced in an arbitrary, capricious, selective, and retaliatory way.
CLASS ALLEGATIONS 40. Under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs bring
this action for prospective relief on behalf of themselves and other similarly situated people who will in the future observe, record, or participate in protest activity within the City of St. Louis in a traditional or designated public forum (the “Plaintiff Class”). 41. The Plaintiff Class is so numerous that joinder of all members would be impracticable. Well over one thousand people have observed, recorded, or participated protest activity within the City of St. Louis since September 15. 42. As a result of the City of St. Louis’ customs or policies of kettling, deploying chemical agents without warning, unconstitutionally interfering with the right of individuals to observe, record, and participate in protest activities in a public space, and enforcing St. Louis Code of Ords. 15.52.010 and 17.16.275 in an unconstitutional manner, the Plaintiff Class has been and will continue to be deprived of their constitutional rights under the First, Fourth, and Fourteenth Amendments. 43. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and Plaintiffs and all Plaintiff Class members have a reasonable fear that the City of St. Louis will continue to enforce its unconstitutional customs or policies relating to kettling, the deployment of chemical agents without warning, the interference with protestors recording the police, and the enforcement of vague ordinances in an arbitrary, capricious, selective, and retaliatory way.
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44. Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. Plaintiffs have no interests that are contrary to or in conflict with those of the class they seek to represent. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class.
45. Questions common to the plaintiff class predominate over individual questions. These legal and factual questions include but are not limited to: a. Whether the City of St. Louis, through its police officers, must provide warning before deploying chemical agents and, if so, what kind of warning is constitutionally sufficient; b. Whether the City of St. Louis, through its police officers, may constitutionally block all routes of egress and then deploy chemical agents when protestors are nonresistant and unable to flee; c. Whether the City of St. Louis, through its police officers, may constitutionally command protestors to delete photographs and videos already recorded which depict officer actions in a public space; d. Whether the City of St. Louis, through its police officers, may command protestors to cease recording video when the recording does not interfere with officers’ ability to perform their duties; e. Whether St. Louis Code of Ords. 15.52.010 and 17.16.275 are unconstitutionally vague on their face and/or as applied to the Plaintiff Class; and f. What kind of dispersal order is required when ordering individuals to disperse, whether and how many and what type of routes of egress must be available, and
9

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how far in time and distance a warning may be before an individual may be arrested for the offenses of “failure to disperse” or “failure to obey.” 46. Relief concerning Plaintiffs’ rights under the laws herein alleged and with respect to the Plaintiff Class would be proper. The City of St. Louis has acted on grounds generally applicable to the Plaintiff Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with regard to the Plaintiff Class as a whole and certification of the Plaintiff Class under Rule 23(b)(2) proper.
COUNT I: FIRST AMENDMENT First Amendment retaliation – 42 U.S.C. § 1983 47. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this complaint as fully set forth herein. 48. Plaintiffs engaged in constitutionally protected acts of observing, recording, or participating in expressive activity. Plaintiffs Ahmad and Dreith gathered together on public streets and sidewalks and when they marched as a group, to express their disapproval of the acquittal of Officer Stockley. 49. Plaintiff Mobley engaged in constitutionally protected expressive activity when he recorded video of police officers on duty in a public place. 50. Plaintiff Maclean and Baude engaged in constitutionally protected expressive activity when they stood on public sidewalks to observe protests and the actions of police officers on duty in a public place. 51. The City of St. Louis retaliated against Plaintiffs for engaging in constitutionally protected expressive activity. 52. Plaintiffs and the Plaintiff Class reasonably fear deployment of chemical agents without warning, unlawful seizure and excessive force through kettling, interference with their
10

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right to record the police, and enforcement of St. Louis Code of Ords. 15.52.010 and 17.16.275 in an arbitrary and/or retaliatory manner if they participate in or observe a protest in the City of St. Louis. 53. These acts that would chill a person of ordinary firmness from continuing to engage in a constitutionally protected activity, and they did, in fact, chill Plaintiffs from continuing to peacefully observe, record, and participate in protest activity. 54. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train and supervise its officers, that caused the First Amendment retaliation. 55. Plaintiffs and members of the Plaintiff Class reasonably fear further retaliation in the future if the observe, record, or participate in protest activity. WHEREFORE, Plaintiffs respectfully request this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a permanent injunction; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C.
§ 1988 and any other applicable provisions of law; and D. Allow such other and further relief as the Court deems just and proper.
COUNT II: FOURTH AMENDMENT Unlawful Seizure and Excessive Force
56. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
57. Plaintiffs were seized by the City of St. Louis when its officers intentionally, and by use of force and threat of arrest, chemical agents and/or kettling, terminated their freedom of movement.
11

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58. The use of chemical agents without warning, the threat of arrest, and the employment of kettling without warning was objectively unreasonable and constituted an unlawful seizure and excessive force.
59. Plaintiffs had committed no crime. 60. Plaintiffs posed no threat to the safety of any police officer or any other person. 61. It was the custom or policy of the City of St. Louis, as well as the City’s failure to train
and supervise its officers, that caused the unlawful seizures and use of excessive force. 62. Plaintiffs and members of the Plaintiff Class reasonably fear further unlawful seizures
and excessive force in the future if the observe, record, or participate in protest activity. WHEREFORE, Plaintiffs respectfully requests this Court:
A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a permanent injunction; C. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §
1988 and any other applicable provisions of law; and D. Allow such other and further relief as the Court deems just and proper.
COUNT III: FOURTEENTH AMENDMENT Procedural Due Process
63. Plaintiffs and the Plaintiff Class incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.
64. The due process rights of Plaintiffs other than Plaintiff Mobley were violated when the City of St. Louis, through its agent officers, failed to provide any warning about the deployment of chemical agents, to provide an opportunity to disperse, to leave open routes of egress, and to enforce St. Louis Code of Ords. 15.52.010 and 17.16.275 in a way that a person of ordinary intelligence could understand and comply with.
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65. St. Louis Code of Ords. 15.52.010 and 17.16.275, and the City of St. Louis’ policies and customs related to their enforcement, permit arbitrary enforcement at the unbridled discretion of an individual police officer(s), without adequate notice or an adequate opportunity to comply, in a way that does not provide a person of ordinary intelligence with a reasonable opportunity to understand what conduct is permitted and prohibited, and in a way that authorizes and encourages discrimination based on the content of the message of a person engaged in expressive activity.
66. Plaintiffs and members of the Plaintiff Class reasonably fear further violation of the right to due process in the future if the observe, record, or participate in protest activity.
WHEREFORE, Plaintiffs respectfully requests this Court: A. Enter judgment in favor of Plaintiffs and against the City of St. Louis; B. Issue a permanent injunction requiring the City of St. Louis to: a. Declare protests “unlawful assemblies” and to order protestors “to disperse” in a constitutional manner and otherwise limit police activities at protests as required by the Constitution; b. Refrain from deploying chemical agents without warning, provision of routes of egress, and a reasonable time to disperse, unless the person against whom the agents are deployed is currently engaging in force or violence; c. Provide sufficient supervision to permit investigation of alleged misconduct related to patrol of First Amendment events, including disciplining officers who fail to wear visible badges; and
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d. Provide adequate training to prevent the unconstitutional
enforcement of Ords. 15.52.010 and 17.16.275, including:
i. Bias-free policing;
ii. Policing First Amendment events;
iii. Principles of community policing; and
iv. Supervisor training;
C. .Make permanent the preliminary injunction issued on November 15, 2017;
D. Award Plaintiffs reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §
1988 and any other applicable provisions of law; and
E. Allow such other and further relief as the Court deems just and proper.
Respectfully submitted,
/s/ Anthony E. Rothert Anthony E. Rothert, #44827 Jessie Steffan, #64861 American Civil Liberties Union of Missouri Foundation 906 Olive Street, Suite 1130 St. Louis, Missouri 63101 (314) 652-3114 (314) 652-3112 (facsimile) arothert@aclu-mo.org jsteffan@aclu-mo.org
Gillian R. Wilcox, #61278 406 West 34th Street, Suite 420 Kansas City, Missouri 64111 American Civil Liberties Union of Missouri Foundation (816) 470-9938 gwilcox@aclu-mo.org Attorneys for Plaintiffs
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Case: 4:17-cv-02455-CDP Doc. #: 90 Filed: 09/05/18 Page: 15 of 15 PageID #: 1222 Certificate of Service
A copy of the foregoing filed via CM/ECF and thereby made available to all counsel of record on August 20, 2018.
/s/ Anthony E. Rothert
15

 
 Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 1 of 17 PageID #: 4075

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MALEEHA AHMAD, et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF ST. LOUIS, MISSOURI, )

)

Defendant.

)

Case No. 4:17 CV 2455 CDP

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion for class certification. The matter has been fully briefed and is now ripe for decision.1 For the following

reasons, the motion to certify will be granted, with the class redefined by the Court

as set forth below.

Background

The parties rely upon the Court’s familiarity with the underlying facts and

issues based upon the preliminary injunction hearing held in this matter on October

18, 19, and 23, 2017. As the parties also rely upon evidence submitted at that

hearing and refer to the Court’s November 15, 2017 order granting preliminary

relief, the Court will not restate that evidence here. In further support of

certification plaintiffs offer the following additional evidence: Since the hearing,

1 The parties did not request a hearing on the motion for class certification, and the Court deems a hearing unnecessary as the issue is one capable of resolution on the briefs.

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four St. Louis City police officers who patrolled the protests at issue here have been indicted in this Court for allegedly unlawful activities undertaken during the protests. Case No. 4: 18 CR 975 CDP/JMB. Three of the indicted officers face federal civil rights charges for beating an undercover detective they mistook for a protestor.2 These officers allegedly expressed widespread enthusiasm for using force against protestors and acknowledged that officers routinely destroyed protestors’ cameras and cell phones during protests. Plaintiffs also offer deposition testimony from police officers who purport to have little to no recollection or understanding of the preliminary injunction entered by this Court on November 15, 2017, and who cannot testify to any change in police policy or procedure resulting from the preliminary injunction.
Plaintiffs Maleeha Ahmad, W. Patrick Mobley, and Pamela Lewczuk seek to certify a putative class consisting of “persons who will in the future participate in expressive activity that is intended or perceived as a protest of police at a traditional public or designated public forum within the City of St. Louis.” Ahmad participated in the protests and was maced. Mobley allegedly had his cell phone illegally seized and searched when he was caught filming an arrest during the protests. Police allegedly deleted the video without his consent, threatened to manufacture evidence to arrest him, and accused him of property damage before
2 Two of the indicted officers are also charged with interfering with the subsequent investigation into their conduct by destroying evidence and/or lying to investigating officials.
2

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telling him to leave or face arrest. Lewczuk is a legal observer who was allegedly exposed to chemical agents by police on several occasions while observing the protests. She was also arrested during the mass arrest on the evening of September 17, 2017, and alleges that she was subject to unlawful arrest and the gratuitous use of force, including chemical agents, despite complying with all police commands.
Defendant does not address the post-hearing evidence offered by plaintiffs. Instead, it argues that class certification is inappropriate for several reasons, addressed below.3
Standards Governing Class Certification “To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy one of the three subsections of Rule 23(b).” In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)). Plaintiffs carry the burden of showing that they have met those requirements. See Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). This burden is met only if, “after a rigorous analysis,” the Court is convinced the Rule 23 requirements are satisfied. Comcast Corp. v.
3 It also invites the Court to reconsider its prior ruling that plaintiffs have standing to bring their claims, which the Court declines to do. Plaintiffs have standing because they have demonstrated both an objectively reasonable self-censorship of the exercise of their first amendment rights based upon defendant’s allegedly unconstitutional conduct and an intent to speak despite a realistic danger of sustaining retaliatory injury inflicted by defendant as a result of their exercise of constitutionally protected rights. See Missourians for Fiscal Accountability v. Klar, 830 F.3d 789, 794 (8th Cir. 2016).
3

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Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 341 (2011)). Rigorous analysis may further “entail overlap with the merits of the plaintiff’s underlying claim,” because “[t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.” Comcast, 569 U.S. at 33-34 (internal quotation marks and citations omitted). However, the Court’s inquiry on a motion for class certification is “tentative,” “preliminary,” and “limited.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. “[The Court’s] primary task is not to determine the final disposition of a plaintiff’s claims, but instead to examine whether those claims are appropriate for class resolution.” Postawko v. Missouri Department of Corrections, 910 F.3d 1030, 1037 (8th Cir. 2018) (citing In re Zurn, 644 F.3d at 613).
Ascertainability Defendant argues that class certification should be denied because the proposed class is not adequately defined and ascertainable. Defendant contends
4

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that the class cannot be adequately defined because it uses the vague terms of “protest,” “protest of police,” “expressive activity,” and “public forum.” Defendant also complains that the class definition is not directed to the issues raised in the case or limited in time or to lawful activity. Ascertainability is not a “separate, preliminary requirement” of class certification, but rather an implicit one enforced through a rigorous analysis of Rule 23’s requirements. Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016); McKeage v. TMBC, LLC, 847 F.3d 992, 998 (8th Cir. 2017). One way for a class to be ascertainable is for “its members [to] be identified by reference to objective criteria.” Id. “As a general matter, less precision is required of class definitions under Rule 23(b)(2) than under Rule 23(b)(3), where mandatory notice is required by due process.” Multi-Ethnic Immigrant Workers Organizing Network v. City of Los Angeles, 246 F.R.D. 621, 630 (C.D. Cal. 2007).
While the Court disagrees that the terms used in the proposed class definition are vague, it concludes that the class definition should be redefined to make the class more readily ascertainable and to better reflect the issues in the case, which does not include protestors engaged in violent, unlawful activity. It is well within the discretion of the Court to redefine the proposed class definition to address the problems raised by defendant rather than to simply deny class certification, and plaintiffs request the Court do so if the class definition is deemed
5

Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 6 of 17 PageID #: 4080
inappropriate. See Rawlings v. ADS Alliance Data Sys., Inc., 2015 WL 3866885, at *4 (W.D. Mo. June 23, 2015). Therefore, the Court will redefine the proposed class as follows:
persons who will in the future participate in or observe non-violent public demonstrations and/or who record such public demonstrations and/or police activities at the public demonstrations for the exercise of constitutional rights of free speech and assembly in the City of St. Louis. Class definitions should avoid criteria that are subjective, but the terms “demonstration” and “non-violent” are objectively determinable descriptors of class members’ behaviors which do not depend upon the state of mind of class members. See Multi-Ethnic Immigrant Workers Organizing Network, 246 F.R.D. at 630; Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 679-80 (W.D. Mo. 1974). It also ensures that any injunctive relief awarded will apply only to those protestors engaged in or observing non-violent activity and to those who lawfully record it. Defendant’s objection to the lack of a temporal time limit lacks merit. The very nature of an injunctive class contemplates that there will be class members who can only be determined in the future and does not preclude certification. See, e.g., Postawko, 910 F.3d at 1035-36 (affirming class including future inmates who will be diagnosed with HCV). Plaintiffs have met their burden of demonstrating that the proposed class, as redefined, is adequately defined and ascertainable.
6

Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 7 of 17 PageID #: 4081

A. Numerosity

Rule 23(a)’s Requirements

Rule 23(a)(1) requires that the class be sufficiently numerous such that

joinder of all members would be impracticable. Rule 23(a)(1) “must be read

liberally in the context of civil rights suits.” Ahrens v. Thomas, 570 F.2d 286, 288

(8th Cir. 1978). In assessing whether the numerosity requirement has been met,

courts examine factors such as the number of persons in the proposed class, the

nature of the action, the size of the individual claims, and the inconvenience of

trying individual claims. Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir.

1982). Joinder of all members may be impracticable where the class includes

individuals who may become members in the future but who are currently

unidentifiable. See Phillips v. Joint Legis. Committee on Performance and

Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir. 1981) (finding

that “joinder of unknown individuals is certainly impracticable”). “It is not

necessary to specify an exact number or to prove the identity of each class

member, rather the plaintiffs must only show a reasonable estimate of the number

of class members.” Halbach v. Great-West Life & Annuity Ins. Co., 2007 WL

1018658, at *3 (E.D. Mo. Apr. 2, 2007) (internal quotation marks and citation

omitted).

7

Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 8 of 17 PageID #: 4082
Defendant does not challenge numerosity, and the Court finds that plaintiffs have met their burden of establishing that the numerosity requirement is met in this case. The evidence submitted to the Court demonstrates that hundreds of people participated in the protests and will likely do so in the future. The identity of these future protestors and observers is unknown, making joinder impracticable. “In such a case the requirement of Rule 23(a)(1) is clearly met . . . .” Phillips, 637 F.2d at 1022. Moreover, having each putative plaintiff file a separate suit would constitute a waste of judicial resources, as the trials would involve duplicative witnesses and evidence. For these reasons, the Court concludes the numerosity requirement has been satisfied. B. Commonality
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs must show that their class claims “depend upon a common contention” that “is capable of class wide resolution,” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. But, commonality “‘does not require that every question of law or fact be common to every member of the class . . . and may be satisfied, for example, where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated.’”
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Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 9 of 17 PageID #: 4083
Downing v. Goldman Phipps PLLC, 2015 WL 4255342, at *4 (E.D. Mo. July 14, 2015) (quoting Paxton, 688 F.2d at 561). “[A] single common question will do for purposes of Rule 23(a)(2).” Ebert v. General Mills, Inc., 823 F.3d 472, 478 (8th Cir. 2016) (internal quotation marks and citation omitted). The key inquiry is “the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350.
Plaintiffs have met their burden of establishing that the commonality requirement is met in this case. Plaintiffs’ claims for prospective injunctive relief present common questions of law and fact with respect to defendant’s unconstitutional policies and practices relating to protests against the police, including the following: defendant’s alleged custom or policy permitting any officer to declare an unlawful assembly in the absence of the force or violence requirement of St. Louis City Ordinance 17.16.275 and Mo. Rev. Stat. § 574.060, in violation of plaintiffs’ first and fourth amendment rights; defendant’s alleged custom or policy permitting officers to issue vague dispersal orders to protestors exercising their first amendment rights in an arbitrary and retaliatory way and then enforcing those dispersal orders without sufficient notice and opportunity to comply before subjecting plaintiffs to uses of force or arrest, in violation of the First and Fourth Amendment; defendant’s alleged custom or policy of using chemical agents without warning on plaintiffs engaged in expressive activity that is
9

Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 10 of 17 PageID #: 4084
critical or police or against plaintiffs who are recording police in retaliation for the exercise of their first amendment rights, in violation of the First, Fourth, and Fourteenth Amendments; and defendant’s alleged custom or policy of macing and using gratuitous force on plaintiffs who are recording police activity and/or voicing criticism of police and for no readily apparent, legitimate law enforcement purpose, contrary to official written policy regarding the recording of police activity set out in Special Order 1-06. “While a putative class seeking damages for such claims might struggle to satisfy Rule 23(a)(2), a class certified under Rule 23(b)(2) seeking only injunctive and declaratory relief suffers no such difficulty.” Postawko, 910 F.3d at 1038.
The commonality requirement is satisfied here because plaintiffs are challenging only the customs and policies of defendant relating to protests against the police and not any particular officer’s treatment of any particular plaintiff. See, e.g., Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014) (certification proper because defendant had a specific company policy – the payment of K-code time for donning, doffing, and walking – that applied to all class members.); In re Zurn, 644 F.3d at 619 n.7 (evidence of a universal defect raised critical question common to all members of the certified classes).
Defendant argues that the commonality element is not satisfied because plaintiffs cannot demonstrate that the injury to future class members will be the
10

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same. The Eighth Circuit rejected this argument in Postawko, finding that it mischaracterized the nature of plaintiffs’ claims, which were based on exposure to the same policy. 910 F.3d at 1038. The “same injury” requirement requires only that class members face a violation of their constitutional rights by the same unlawful customs or policies, which is clearly present in this case, not that each class member suffer identical resulting harm. Id. As in Potawsko, plaintiffs allege the same constitutional injury, which is exposure to the same unconstitutional policies and customs of defendant. The Court finds that plaintiffs have met their burden of establishing that the commonality requirement is met in this case. C. Typicality
The typicality requirement is met when the claims or defenses of the representative party are typical of those of the class. Fed. R. Civ. P. 23(a)(3). The requirement “is fairly easily met so long as other class members have claims similar to the named plaintiff.” DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174 (8th Cir. 1995). In determining typicality, courts consider whether the named plaintiffs’ claim “arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.” Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
Plaintiffs have met their burden of establishing that the typicality requirement is met in this case. Plaintiffs’ claims and the claims of putative class
11

Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 12 of 17 PageID #: 4086
members are for prospective injunctive relief only and based on the same policies and customs of defendant. The named plaintiffs allegedly experienced the same harms as the putative class members, including exposure to chemical munitions without adequate warning or justification, arbitrary enforcement of ordinances and orders, and gratuitous and excessive uses of force in retaliation for the exercise of constitutionally protected rights, and those harms are typical of those allegedly suffered by the putative class as demonstrated by the evidence submitted at the preliminary injunction hearing.
Defendant contends that the typicality requirement is not satisfied because the named plaintiffs were subjected to the challenged policies and customs under varying circumstances and suffered different resulting harms. This argument was rejected by the Eighth Circuit in Postawko, which emphasized that “‘factual variations in the individual claims [for prospective injunctive and declaratory relief] will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.’” 910 F.3d at 1039 (quoting Alpern, 84 F.3d at 1540). As plaintiffs’ claims arise from the same events and course of conduct as the class claims and rely upon the same legal or remedial theory as the class claims, the typicality element is met in this case.
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D. Adequacy Rule 23(a)(4) requires that the class representative and class counsel will
“fairly and adequately protect the interests of the class.” The adequacy requirement is met where: “(1) the representatives and their attorneys are able and willing to prosecute the action competently and vigorously; and (2) each representative’s interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge.” Carpe v. Aquila, Inc., 224 F.R.D. 454, 458 (W.D. Mo. 2004) (internal quotation marks and citation omitted). This requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997).
Defendant does not dispute that plaintiffs’ counsel can adequately represent the putative class members, as proposed class counsel has extensive experience prosecuting complex civil rights class actions seeking prospective relief. The Court also finds that the proposed class counsel will vigorously represent the plaintiffs in this action. However, defendant challenges the adequacy of the named representatives, claiming that Ahmad engaged in unlawful activity while the others claimed only “observer status.” Defendant’s arguments are without merit. The proposed class representatives fall within the class as redefined by the Court. As the named plaintiffs’ interests are aligned with and not antagonistic to those of the
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Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 14 of 17 PageID #: 4088
proposed class, the Court concludes that plaintiffs have met their burden of demonstrating that the adequacy of representation requirement is satisfied in this case.
Rule 23(b)(2)’s requirements To certify the class, plaintiffs must also prove satisfaction of the Rule 23(b)(2) requirements: that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Although a Rule 23(b)(2) class is not required to satisfy the additional predominance and superiority requirements of Rule 23(b)(3), “‘the class claims must be cohesive.’” Ebert, 823 F.3d at 480 (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998)). For purposes of 23(b)(2), cohesiveness requires that “the relief sought must perforce affect the entire class at once.” Dukes, 564 U.S. at 361-62. In contrast, cohesiveness is lacking where “each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. at 360 (alteration omitted). “Because one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule must be read liberally in the context of civil rights suits.” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (internal quotation marks and citation omitted).
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Case: 4:17-cv-02455-CDP Doc. #: 157 Filed: 05/07/19 Page: 15 of 17 PageID #: 4089
Here, plaintiffs are challenging defendant’s implementation of and adherence to unconstitutional customs and policies relating to protest activity directed at police. Plaintiffs allege that these customs and policies will continue to be applied to individuals in the future who participate, observe, or record this type of protest activity in traditional or designated public fora within the City of St. Louis. As the putative class seeks only declaratory and prospective injunctive relief, “a single injunction or declaratory judgment would provide relief to each member of the class.” Ebert, 823 F.3d at 480 (internal quotation marks and citation omitted).
The case at bar is similar to the case Multi-Ethnic Immigrant Workers Organizing Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007), in which the district court certified a class of protestors challenging police customs and policies relating to protest activity. In granting class certification, the court found that it was “patently obvious” that the defendants had “acted or refused to act on grounds generally applicable to the class” based on the protestors’ allegations that the police had unconstitutionally declared an unlawful assembly and dispersed the protestors and had failed to adopt and implement policies to prevent the infringement of the protestors’ constitutional rights. Id. at 633. The same is true in this case, and defendant does not dispute that plaintiffs have met the requirements of Rule 23(b)(2). Plaintiffs have met their burden of demonstrating
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that defendant has acted – and continues to act – on grounds generally applicable to the members of the putative class. Therefore, plaintiffs satisfy Rule 23(b)(2)’s requirements. Class certification is therefore appropriate.
Defendant’s Remaining Arguments Finally, defendant argues that class certification is inappropriate because it may have a preclusive effect in other pending actions for damages arising out of the protests at issue here. This argument cannot defeat class certification as such a ruling is not one on the merits and therefore has no preclusive effect. Any concerns regarding the preclusive effect that a final judgment in this case might have on other, later-filed cases is appropriately raised in those cases and is not an issue properly before this Court.
Conclusion For the foregoing reasons, the putative class, as redefined, is appropriate for certification under Rule 23(b)(2). Accordingly, IT IS HEREBY ORDERED that plaintiffs’ second motion to certify class [110] is granted only as set forth above. IT IS FURTHER ORDERED that named plaintiffs Maleeha Ahmad, W. Patrick Mobley, and Pamela Lewczuk are appointed as class representatives to represent the following class:
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persons who will in the future participate in or observe non-violent public demonstrations and/or who record such public demonstrations and/or police activities at the public demonstrations for the exercise of constitutional rights of free speech and assembly in the City of St. Louis.
IT IS FURTHER ORDERED that Anthony E. Rothert, Jessie M. Steffan, and Omri E. Praiss of the American Civil Liberties Union of Missouri Foundation, 906 Olive Street, Suite 1130, St. Louis, Missouri 63101 and Gillian R. Wilcox of the American Civil Liberties Union of Missouri Foundation, 406 W. 34th St., Suite 420, Kansas City, Missouri 64111 are appointed as class counsel.

Dated this 7th day of May, 2019.

CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

17

 
 Case: 4:17-cv-02455-CDP Doc. #: 159 Filed: 05/15/19 Page: 1 of 2 PageID #: 4093

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MALEEHA AHMAD, et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF ST. LOUIS, MISSOURI, )

)

Defendant.

)

Case No. 4:17 CV 2455 CDP

MEMORANDUM AND ORDER

This matter is before the Court on defendant’s motion to dismiss and to

dissolve the preliminary injunction entered in this case on November 15, 2017.

Defendant did not appeal the entry of the preliminary injunction. Defendant

alleges that “changed circumstances” warrant the dissolution of preliminary

injunctive relief. The “changed circumstances” cited by defendant include later-

filed individual suits for damages brought against defendant arising out of the

events at issue in this case, evidence obtained during discovery, and the absence of

any recurring protest activity. Defendant also argues that this Court should dismiss

this action as plaintiffs seek relief beyond the equitable powers of this Court.

The Court has reviewed the materials submitted by defendant and concludes

that the motion must be denied. Defendant’s motion amounts to nothing more than

an attempt to reargue the preliminary injunction motion with new counsel and

Case: 4:17-cv-02455-CDP Doc. #: 159 Filed: 05/15/19 Page: 2 of 2 PageID #: 4094
more strident rhetoric. The evidence submitted by defendant only demonstrates that the facts are contested. It does not change the Court’s prior findings supporting the issuance of preliminary injunctive relief, just as the pendency of later-filed individual suits for damages does not make an award of prospective injunctive relief in this case improper. Moreover, the Court has subject matter jurisdiction over this action; a dispute over the merits of plaintiffs’ case is insufficient to deprive this Court of jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998). This case is set on a trial docket in August. The Court can best determine whether continued injunctive relief is warranted after all the evidence has been heard and the case submitted for decision. For these reasons, the Court concludes that defendant’s motion must be denied.
Finally, the Court urges the parties to continue their good faith efforts to resolve this case without the necessity of trial.
Accordingly, IT IS HEREBY ORDERED that defendant’s motion to dismiss and dissolve preliminary injunction [126] is denied.
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE Dated this 15th day of May, 2019.
2

 
 Case: 4:17-cv-02455-CDP Doc. #: 191 Filed: 07/12/19 Page: 1 of 5 PageID #: 4252

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MALEEHA AHMAD, et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF ST. LOUIS, MISSOURI, )

)

Defendant.

)

Case No. 4:17 CV 2455 CDP

MEMORANDUM AND ORDER

This matter is before the Court on defendant’s motion to stay this case

pending appeal. Plaintiffs oppose the motion and the issues are fully briefed. On

May 7, 2019, I granted plaintiffs’ motion for class certification. [Doc. # 157]. On

May 15, 2019, I denied defendant’s motion to dismiss and to dissolve the

preliminary injunction entered in this case on November 15, 2017. [Doc. # 159].

Defendant appealed both of these orders to the Eighth Circuit Court of Appeals.

Defendant sought permission to appeal the decision regarding class certification

under Fed. R. Civ. P. 23(f). The Eighth Circuit granted permission to appeal on

June 14, 2019. [Doc. # 172]. However, defendant did not need to seek permission

to appeal the Order denying the motion to dismiss and to dissolve the preliminary

injunction. See 28 U.S.C. § 1292(a)(1). The appeals have been consolidated.

Case: 4:17-cv-02455-CDP Doc. #: 191 Filed: 07/12/19 Page: 2 of 5 PageID #: 4253
[Doc. # 190-1]. Defendant’s consolidated brief must be filed with the Eighth Circuit by July 24, 2019. [Doc. # 190-1].
This case is currently set for a bench trial beginning August 26, 2019. The discovery and dispositive motion deadlines have passed and initial pre-trial submissions are due by August 6, 2019. Defendant moves to stay this case pending the outcome of the appeal on the ground that the Eighth Circuit could decide that plaintiffs lack standing to pursue this case, thereby rendering any decision this Court may reach on the merits of plaintiffs’ case moot. Defendant also submits that forcing it to trial now when the class could be decertified would subject it to irreparable harm and constitute a waste of resources by the parties and the Court. Importantly, defendant does not request to stay the preliminary injunction, which would remain in place pending disposition of the appeal. Plaintiffs oppose the stay, contending that defendant would not be unduly prejudiced if forced to go to trial now. Plaintiffs argue that they still intend to pursue their claims on an individual basis even if the class is ultimately decertified and the evidence they submit will remain largely the same whether or not the claims proceed on a class-wide basis.
Federal Rule of Civil Procedure 23(f) applies to interlocutory appeals of class certification orders. It provides that an “appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” Id. In
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Case: 4:17-cv-02455-CDP Doc. #: 191 Filed: 07/12/19 Page: 3 of 5 PageID #: 4254
determining whether to issue a Rule 23(f) stay, courts typically consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” See McAllister v. St. Louis Rams, LLC, 2018 WL 2180247, 4: 16 CV 262 SNLJ, at *1 (Apr. 9, 2018). It is less than clear that this standard applies to interlocutory appeals taken under 28 U.S.C. § 1292(a)(1). See Association of Equipment Manufacturers v. Burgum, 2018 WL 1773145, at *1 (D.N.D. Mar. 3, 2018). In either case, however, a stay of proceedings pending the outcome of an interlocutory appeal undoubtedly “falls within the inherent power of a court to manage its docket.” Id. A district court has broad discretion to stay proceedings when appropriate to control its docket, conserve judicial resources, and ensure the matter is handled with economy of time and effort for itself, counsel, and litigants. Id. The consideration to stay proceedings involves an “exercise of judgment, which must weigh competing interests and maintain an even balance.” Id. (internal quotation marks and citation omitted).
After consideration of all the relevant factors, the Court concludes that a stay of proceedings pending disposition of appeal is appropriate. Although the Court disagrees with defendant on the merits of its standing argument, if it is successful
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Case: 4:17-cv-02455-CDP Doc. #: 191 Filed: 07/12/19 Page: 4 of 5 PageID #: 4255
on appeal then this case must be dismissed. Staying the bench trial pending appeal conserves judicial resources and prevents the parties from incurring potentially needless and substantial litigation expense. Even if the case is not dismissed for lack of standing, the appellate court could conclude that class certification is not appropriate. Although the Court understands plaintiffs’ position with respect to the evidence they intend to present, the legal landscape could nevertheless be dramatically altered if this case proceeds solely on the individual claims of the named plaintiffs. Given that plaintiffs seek only prospective injunctive relief, such a ruling could also impact how the defendant chooses to defend itself in this case. Although plaintiffs cite the passage of time as a factor weighing in favor of denying the stay, plaintiffs admit that much of their evidence will consist of that already presented to the Court in the preliminary injunction hearing. Moreover, discovery is complete. Plaintiffs do not cite any impediment to their ability to effectively prepare for trial if proceedings are stayed pending appeal. Instead, the parties will have the ability to more effectively present their evidence and arguments to the Court once the appellate court decides the issues on appeal. Finally, as defendant is not requesting a stay of the preliminary injunction the Court concludes that plaintiffs’ interests and the public’s interest will be protected during the stay.
Accordingly,
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Case: 4:17-cv-02455-CDP Doc. #: 191 Filed: 07/12/19 Page: 5 of 5 PageID #: 4256
IT IS HEREBY ORDERED that defendant’s motion to stay [186] is granted as follows: this case is removed from the August 26, 2019, trial docket and will be reset, if necessary, by further Order of this Court. All deadlines relating to pre-trial compliance set out in the Case Management Order [Doc. #81] are stayed and will be reset by further Order of this Court. All proceedings in this case are stayed pending disposition of defendant’s consolidated appeal with the Eighth Circuit Court of Appeals, except that the Order of Preliminary Injunction entered November 15, 2017 [58] is not stayed and remains in full force and effect.

Dated this 12th day of July, 2019.

CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

5

 
 General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 19-8011

Docketed: 05/21/2019

Maleeha Ahmad, et al v. City of St. Louis, Missouri

Termed: 06/17/2019

Appeal From: U.S. District Court for the Eastern District of Missouri -

St. Louis

Fee Status: pending

Case Type Information: 1) Miscellaneous 2) 23(f) 3) null

Originating Court Information:

District: 0865-4 : 4:17-cv-02455-CDP

Trial Judge: Catherine D Perry, Senior District Judge

Date Order/Judgment:

Date Rec'd COA:

05/07/2019

05/21/2019

Prior Cases: None

Current Cases: None

Maleeha S. Ahmad Respondent

Omri E. Praiss Direct: 314-652-3114 [NTC Retained] AMERICAN CIVIL LIBERTIES UNION OF MISSOURI Suite 1130 Suite 1130 906 Olive Street Saint Louis, MO 63101
Anthony E. Rothert Direct: 314-669-3420 [NTC Retained] AMERICAN CIVIL LIBERTIES UNION OF MISSOURI Suite 1130 Suite 1130 906 Olive Street Saint Louis, MO 63101

Jessie M. Steffan Direct: 636-875-4313 [NTC Retained] AMERICAN CIVIL LIBERTIES UNION OF MISSOURI Room 1130 Suite 1130 906 Olive Street Saint Louis, MO 63101
Gillian R. Wilcox Direct: 816-470-9938 [NTC Retained] ACLU OF MISSOURI FOUNDATION Suite 420 406 W. 34th Street Kansas City, MO 64111

Alison Dreith, on behalf of themselves and a class of similarly situated individuals

Brian Baude

W. Patrick Mobley Respondent

Omri E. Praiss Direct: 314-652-3114 [NTC Retained] (see above)
Anthony E. Rothert Direct: 314-669-3420 [NTC Retained] (see above)
Jessie M. Steffan Direct: 636-875-4313 [NTC Retained] (see above)

Gillian R. Wilcox Direct: 816-470-9938 [NTC Retained] (see above)

Iris Maclean

Pamela Lewczuk Respondent
v. City of St. Louis, Missouri
Petitioner

Omri E. Praiss Direct: 314-652-3114 [NTC Retained] (see above)
Anthony E. Rothert Direct: 314-669-3420 [NTC Retained] (see above)
Jessie M. Steffan Direct: 636-875-4313 [NTC Retained] (see above)
Gillian R. Wilcox Direct: 816-470-9938 [NTC Retained] (see above)
Robert Henry Dierker, Jr. Direct: 314-622-3361 [NTC Retained] CITY COUNSELOR'S OFFICE Firm: 314-622-3361 314 City Hall 1200 Market Street Saint Louis, MO 63103-0000
Abby Joe Duncan, Assistant City Counselor Direct: 314-622-4694 [NTC Retained] CITY COUNSELOR'S OFFICE Firm: 314-622-3361 314 City Hall 1200 Market Street Saint Louis, MO 63103-0000
Brandon David Laird Direct: 314-622-4652 [NTC Retained] CITY COUNSELOR'S OFFICE Firm: 314-622-3361

314 City Hall 1200 Market Street Saint Louis, MO 63103-0000

Amy Raimondo [NTC Retained] CITY COUNSELOR'S OFFICE Firm: 314-622-3361 314 City Hall 1200 Market Street Saint Louis, MO 63103-0000

Maleeha S. Ahmad Respondent
Alison Dreith, on behalf of themselves and a class of similarly situated individuals; Brian Baude W. Patrick Mobley
Respondent Iris Maclean Pamela Lewczuk
Respondent v. City of St. Louis, Missouri
Petitioner

05/21/2019

Miscellaneous case docketed. [4790037] [19-8011] (CMH) [Entered: 05/22/2019 09:29 AM]

05/21/2019
62 pg, 7.71 MB

PETITION for permission to appeal under FRCvP 23(f) (Electronic) with Appendix filed by Petitioner City of St. Louis, Missouri w/service by USCA8 on 05/22/2019. [4790056] [19-8011] (CMH) [Entered: 05/22/2019 09:44 AM]

05/29/2019
3 pg, 16.83 KB

MOTION for extension of time to file response to petition for 23(f) appeal, [4790056-2], until 06/07/2019, filed by Respondents Ms. Maleeha S. Ahmad, Ms. Pamela Lewczuk and Mr. W. Patrick Mobley w/service 05/29/2019. [4791964] [19-8011] (AER) [Entered: 05/29/2019 10:41 AM]

05/30/2019

CLERK ORDER:Granting [4791964-2] motion for extension of

1 pg, 9.15 KB time to file a response filed by Respondents. Response of Maleeha

S. Ahmad, Pamela Lewczuk and W. Patrick Mobley due 06/07/2019 [4792632] [19-8011] (AEV) [Entered: 05/30/2019 01:44 PM]

06/07/2019

RESPONSE in opposition to petition for 23(f) appeal [4790056-2]

20 pg, 72.43 KB filed by Attorney Mr. Anthony E. Rothert for Respondents Ms.

Maleeha S. Ahmad, Ms. Pamela Lewczuk and Mr. W. Patrick

Mobley , w/service 06/07/2019. [4795608] [19-8011] (AER)

[Entered: 06/07/2019 06:33 PM]

06/12/2019

CASE SUBMITTED Ad Panel Submission before Judges James B. Loken, L. Steven Grasz, Jonathan A. Kobes in St. Louis [4798362] [19-8011] (CMD) [Entered: 06/17/2019 11:49 AM]

06/14/2019
1 pg, 9.1 KB

JUDGE ORDER: Petitioner's petition for permission to appeal [4790056-2] under FRCvP 23(f) is granted. The appeal has been assigned appeal number 19-2221 on the regular docket. Adp June 2019 [4797869] [19-8011] (CMH) [Entered: 06/14/2019 10:55 AM]

06/14/2019

PUBLIC DOCKET NOTE: The case has been regularly docketed under case number 19-2221. [4797892] [19-8011] (CMH) [Entered: 06/14/2019 11:19 AM]

06/17/2019
2 pg, 9.86 KB

JUDGMENT FILED - Judgment is entered in accordance with the court's order of June 14, 2019, granting [4790056-2] petition for 23(f) appeal filed by Petitioner City of St. Louis, Missouri. GRANTED. Mandate shall issue forthwith. The appeal has been assigned appeal number 19-2221 on the regular docket. JAMES B. LOKEN, L. STEVEN GRASZ and JONATHAN A. KOBES Adp June 2019 [4798370] [19-8011] (CMD) [Entered: 06/17/2019 11:54 AM]

06/17/2019

MANDATE ISSUED. [4798379] [19-8011] (CMD) [Entered:

1 pg, 9.05 KB 06/17/2019 11:59 AM]

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 Case: 4:17-cv-02455-CDP Doc. #: 195 Filed: 04/27/21 Page: 1 of 19 PageID #: 4259

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

April 27, 2021

Mr. Robert Henry Dierker Jr. CITY COUNSELOR'S OFFICE 314 City Hall 1200 Market Street Saint Louis, MO 63103-0000

RE: 19-2062 Maleeha Ahmad, et al v. City of St. Louis, Missouri 19-2221 Maleeha Ahmad, et al v. City of St. Louis, Missouri

Dear Counsel:

The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.

Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.

Michael E. Gans Clerk of Court

NDG

Enclosure(s)

cc: Ms. Abby Joe Duncan Mr. Brandon David Laird Mr. Gregory J. Linhares Mr. Omri E. Praiss Ms. Amy Raimondo Mr. Anthony E. Rothert Ms. Jessie M. Steffan Ms. Gillian R. Wilcox

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District Court/Agency Case Number(s): 4:17-cv-02455-CDP 4:17-cv-02455-CDP

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Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

April 27, 2021

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000

RE: 19-2062 Maleeha Ahmad, et al v. City of St. Louis, Missouri 19-2221 Maleeha Ahmad, et al v. City of St. Louis, Missouri

Dear Sirs:

A published opinion was filed today in the above case.

Counsel who presented argument on behalf of the appellant and appeared on the brief was Robert Henry Dierker, Jr., of Saint Louis, MO. The following attorneys also appeared on the appellant brief; Brandon David Laird, of Saint Louis, MO., Abby Joe Duncan, of Saint Louis, MO., Amy Raimondo, of Saint Louis, MO., and Megan K. B. Bruyns, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellees and appeared on the brief was Anthony E. Rothert, of Saint Louis, MO. The following attorneys also appeared on the appellee brief; Omri E. Praiss, of Saint Louis, MO., Gillian R. Wilcox, of Kansas City, MO., Jessie M. Steffan, of Saint Louis, MO.

The judge who heard the case in the district court was Honorable Catherine D Perry. The judgment of the district court was entered on May 15, 2019.

If you have any questions concerning this case, please call this office.

NDG

Michael E. Gans Clerk of Court

Enclosure(s)

cc: MO Lawyers Weekly

District Court/Agency Case Number(s): 4:17-cv-02455-CDP 4:17-cv-02455-CDP

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United States Court of Appeals
For the Eighth Circuit ___________________________
No. 19-2062 No. 19-2221 ___________________________
Maleeha S. Ahmad, et al.
lllllllllllllllllllllPlaintiffs-Appellees
v.
City of St. Louis, Missouri
lllllllllllllllllllllDefendant - Appellant ___________________________
Appeals from United States District Court for the Eastern District of Missouri - St. Louis
____________
Submitted: September 23, 2020 Filed: April 27, 2021 ____________
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. ____________
LOKEN, Circuit Judge.
In September 2017, following the acquittal of a former St. Louis police officer for the on-duty shooting of a black man, St. Louis police dealt with several days of extensive street protests. The initial protests were peaceful; police made no arrests and did not use force or chemical agents. After dark on September 15, a group attempted to seize a highway on-ramp. Turned back by police outfitted with riot gear,

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they migrated to the area where police civil disobedience teams were about to leave in public transit buses. Some protesters locked arms to prevent the buses from leaving and were maced when they refused to obey orders to move. Others were maced when they approached police lines and failed to obey commands to “move back.” Officers declared that certain gatherings were unlawful assemblies and issued dispersal orders. A large crowd threw objects at the mayor’s house; security summoned police who deployed tear gas and pepper balls to disperse the group.
On the evening of September 17, rioters wearing masks and goggles roamed downtown St. Louis, smashing windows and engaging in other vandalism. Some were arrested. During the chaos, a group of officers the City admits “went rogue” seized and beat a protester who in fact was an undercover detective and destroyed the phone he was using to record police conduct. Text messages between abusive officers revealed a plan to beat protesters and suggested that if they had beaten a real protester rather than an undercover detective, they would not be in any trouble. Elsewhere that evening, when rioters harassed police, the commander ordered arrests. Awaiting reinforcements, police declared the crowd an unlawful assembly and issued repeated orders to disperse, in-person and via public address. An hour later, police arrested and maced approximately 125 people.

These incidents gave rise to this lawsuit. Plaintiffs, now three in number, are a protester who allegedly was maced, a person whose cell phone was seized and searched as he filmed arrests, and an observer who was allegedly exposed to chemical agents and arrested on September 17. Plaintiffs filed a First Amended Complaint for Prospective Relief and a motion for a preliminary injunction on September 28, 2017. The Amended Complaint alleged that the City (i) violated the First Amendment by retaliating against plaintiffs for engaging in protected expressive activity; (ii) violated the Fourth Amendment because its custom, practice, and failure to train and supervise caused unlawful seizures and the use of excessive force by police officers; and (iii) violated the Fourteenth Amendment when officers failed to warn before deploying
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chemical agents, failed to provide opportunities to disperse, and arbitrarily enforced two ordinances of the St. Louis Code. For relief, plaintiffs urged the court to “[i]ssue a temporary restraining order, preliminary injunction, and permanent injunction requiring the City of St. Louis to declare protests ‘unlawful assemblies’ and to order protestors ‘to disperse’ in a constitutional manner and otherwise limit police activities at protests as required by the Constitution.”
The district court held a three-day evidentiary hearing at which eighteen witnesses testified in support of the motion for preliminary injunction. On November 15, 2017, the court granted the injunction set forth in the Appendix to this opinion. At the same time, the court referred the case to mediation, setting a compliance report deadline of February 15, 2018 The City did not timely appeal the preliminary injunction, which was an appealable interlocutory order. See 28 U.S.C. § 1292(a)(1). The mediation was extended. On February 1, 2019, plaintiffs filed a Second Motion To Certify Class. On March 29, the City filed a motion to dissolve the preliminary injunction and dismiss the Second Amended Complaint “for lack of equitable jurisdiction.” On May 6, the mediator filed a Compliance Report stating that the parties “participate[d] in good faith [but] did not achieve a settlement.” On May 7, the district court entered an order granting certification of a Rule 23(b)(2) class. See Fed. R. Civ. P. 23 (b)(2). On May 15, 2019, the court denied the City’s motion to dismiss and to dissolve the preliminary injunction.1 The City timely appealed both

1We affirm the district court’s denial of the City’s motion to dismiss, which was based upon a flawed or premature jurisdictional contention that plaintiffs lack Article III standing. “A determination even at the end of trial that the court is not prepared to award any remedy that would benefit the plaintiff may be expressed as a conclusion that the plaintiff lacks standing.” 13C Wright, Miller, & Cooper, Fed. Prac. & Procedure § 3531.6, p.478 (2d ed. 1984). But the determination that plaintiffs lack equitable standing is often not jurisdictional but a ruling on the merits. See generally City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
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orders. We granted permission to appeal the class certification order, see Rule 23(f), and consolidated the two appeals. We now remand with instructions.

I. Motion to Dissolve Preliminary Injunction

The City appeals the denial of its motion to dissolve the preliminary injunction. We have jurisdiction over interlocutory orders “granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1). Our standard of review is for abuse of discretion. Waste Management, Inc. v. Deffenbaugh, 534 F.2d 126, 129 (8th Cir. 1976). Modifying or dissolving a preliminary injunction “is proper only when there has been a change of circumstances . . . that would render the continuance of the injunction in its original form inequitable.” Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332, 337 (3d Cir. 1993). “When considering whether to modify a preliminary injunction, a district court is not bound by a strict standard of changed circumstances but is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law.” Omaha Indem. Co. v. Wining, 949 F.2d 235, 239 (8th Cir. 1991) (quotation omitted).

The City based its motion to dissolve on Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b)(5) permits a party to obtain relief from a judgment or order if “applying it prospectively is no longer equitable.” In Horne v. Flores, the Supreme Court confirmed that Rule 60(b)(5) “provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.” 557 U.S. 443, 447 (2009) (cleaned up). The Court noted that “Rule 60(b)(5) serves a particularly important function in what we have termed ‘institutional reform litigation’ [because] [s]uch litigation commonly involves areas of core state responsibility.” Id. at 447-48; see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 392-93 (1992) (modification of consent decrees). Though Rule 60(b)(5) on its face
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is limited to relief from final orders, we conclude the standard applied in Horne also applies to motions to modify or dissolve preliminary injunctions. “We review only the denial of the Rule 60(b) motion and do not squarely consider the merits of the underlying order.” Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8th Cir. 1997). The City bears the burden of establishing that changed circumstances warrant relief. Horne, 557 U.S. at 447.

In denying the motion to dissolve, the district court concluded that the City had failed to show changed circumstances, characterizing its motion as “nothing more than an attempt to reargue the preliminary injunction motion with new counsel and more strident rhetoric.” For the most part, we agree. But in one crucial respect -- the passage of time since the preliminary injunction was entered -- the City’s motion does present a dramatic case of “changed circumstances.”

In most cases, “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). But in this case, the district court issued a preliminary injunction that is in “substance, if not in terms, a mandatory one, which ‘like a mandamus,’ is an extraordinary remedial process.” Heckler v. Lopez, 463 U.S. 1328, 1333-34 (1983) (Rehnquist, J., granting a stay pending appeal). Issued against the City and “its agents, servants, employees, and representatives,” the decree subjects every St. Louis police officer exercising his or her community caretaking responsibility to maintain public order and protect persons and property to the risk of being held in contempt of court for (i) enforcing facially valid ordinances prohibiting unlawful assemblies and refusals to obey dispersal orders with “the purpose of punishing persons for exercising their constitutional rights to engage in expressive activity,” unless they are “acting in concert to pose an imminent threat to use force or violence”; (ii) using “chemical agents . . . against any person engaged in expressive, non-violent activity . . . in the absence of probable cause to arrest . . . and without first issuing clear and unambiguous warnings that the person is subject

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to arrest . . . and providing the person sufficient opportunity to heed the warnings”;2 or (iii) issuing dispersal orders without “specifying with reasonable particularity the area from which dispersal is ordered . . . and providing sufficient warnings of the consequences of failing to disperse” and a reasonable “announced amount of time . . . to heed the warnings and exit the area.”
Given the events in the fall of 2017, we do not question the district court’s decision to issue a preliminary injunction that included affirmative mandates pending a prompt trial on the merits of plaintiffs’ claims for a permanent injunction. But there has been no prompt trial. Instead, the case was referred to a mediator for six months, and the six month delay became over three years when mediation failed, plaintiffs renewed their motion for class certification, and the court entered an appealable class certification order. In this institutional reform lawsuit, this change in circumstances warranted the district court’s serious consideration of either modifying or dissolving the preliminary injunction or accelerating trial on the merits of plaintiffs’ permanent injunction claims. “It is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant alterations in their practices before there has been time for a trial on the merits.” Chicago United Ind., Ltd. v. City of Chicago, 445 F.3d 940, 945 (7th Cir. 2006), quoting O Centro Espiria Beneficient Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th Cir. 2004) (McConnell, J., concurring). “[T]he

2The mandate that chemical agents may only be used when there is probable cause to arrest goes beyond what this court has held in § 1983 excessive force cases. See Frederick v. Motsinger, 873 F.3d 641, 646-47 (8th Cir. 2017). These First and Fourth Amendment issues are more complex and fact intensive. See Quraishi v. St. Charles Cty., Mo., 986 F.3d 831 (8th Cir. 2021). To the extent this provision was based upon a prior settlement agreement, that would not be sufficient to support a § 1983 permanent injunction. See Lewis v. Casey, 518 U.S. 343, 363 (1996).
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longer an injunction or consent decree stays in place, the greater the risk that it will improperly interfere with a State’s democratic processes.” Horne, 557 U.S. at 453.

Plaintiffs seek permanent injunctive relief against the City based on its alleged custom and practice and its failure to train and supervise police officers. Regarding the custom and practice claim, plaintiffs do not allege that the municipal ordinances being enforced during the September 2017 protests are constitutionally invalid. But a “showing at trial of a relatively few instances of violations by individual police officers, without any showing of a deliberate policy on behalf of [the City, would] not provide a basis for equitable relief.” Lyons, 461 U.S. at 104. Rather, “where the claim is that municipal action lawful on its face caused an employee to inflict constitutional injury, ‘rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employees.’” S.M. v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir. 2017), quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997). To prevail on this claim, plaintiffs “must show that [their] alleged injury was caused by municipal employees engaging in a widespread and persistent pattern of unconstitutional misconduct, that municipal policymakers were either deliberately indifferent to or tacitly authorized.” Davis v. White, 794 F.3d 1008, 1014 (8th Cir. 2015); see Szabla v. City of Brooklyn Park, Mn. 486 F.3d 385, 389-90 (8th Cir. 2007) (en banc); Thomas v. Cty. of Los Angeles, 978 F.2d 504, 509 (9th Cir. 1992) (“plaintiffs’ eventual burden in obtaining a permanent injunction against a state law enforcement agency is to establish more than repeated incidents of misconduct”).

Plaintiffs’ burden in proving their municipal failure to train and supervise claim is no less rigorous. “‘Section 1983 liability cannot attach to a supervisor merely because a subordinate violated someone’s constitutional rights.’ . . . [T]o maintain an action for training or supervisory liability, a plaintiff must show the failure to train or supervise caused the injury.’” Johnson v. City of Ferguson, Mo., 926 F.3d 504, 506 (8th Cir. 2019) (en banc); see City of Canton v. Harris, 489 U.S. 378, 389-92

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(1989). Given these rigorous § 1983 burdens of proof, the evidence at the preliminary injunction hearing relating to the events of September 2017, while relevant and sufficient to persuade the court to grant a preliminary injunction pendente lite, will not be sufficient to warrant permanent injunctive relief imposing the same levels of indefinite federal court control over the City’s law enforcement responsibilities. As Judge Posner recently reminded Seventh Circuit district judges, “[t]he era of micromanagement of government functions by the federal courts is over.” Chicago United Ind., 445 F.3d at 947.3
In reviewing preliminary injunctions, we have long recognized “that justice would be served by proceeding to trial with all due haste in order to secure a ruling on the merits of the claim raised.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 112 (8th Cir. 1981) (en banc). That was true when the preliminary injunction issued in November 2017 and is even more true today. The City has not shown changed circumstances warranting immediate dissolution. However, when discovery is complete or largely complete, as in this case, we agree with the Second Circuit “that the important questions raised . . . should not be left unanswered . . . any longer than necessary,” and we therefore condition maintenance of the preliminary injunction upon the completion of a trial on the merits of plaintiffs’s request for a permanent injunction within six months. Able v. United States, 44 F.3d 128, 132-33 (2d Cir. 1995); see Daniels Health Sciences, LLC v. Vascular Health Sciences, LLC, 710 F.3d 579 (5th Cir. 2013); Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6 (7th Cir. 1992). Accordingly, we affirm denial of the City’s motion to dissolve the temporary injunction and remand with directions to vacate and dissolve the injunction

3“It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis, 518 U.S. at 349.
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no later than October 31, 2021, if it has not been replaced with a final order either granting a permanent injunction or denying injunctive relief.4
II. Class Certification
The City appeals the district court’s order granting certification of a class under Rule 23(b)(2). The court defined the class as:
persons who will in the future participate in or observe non-violent public demonstrations and/or who record such public demonstrations and/or police activities at the public demonstrations for the exercise of constitutional rights of free speech and assembly in the City of St. Louis.
“To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy one of the three subsections of Rule 23(b).” In re St. Jude Medical, Inc., 425 F.3d 1116, 1118 (8th Cir. 2005). Rule 23(a) requires showing that the class meets requirements of “numerosity, commonality, typicality, and fair and adequate representation.” Postawko v. Missouri Dept. of Corrections, 910 F.3d 1030, 1037 (8th Cir. 2018). Rule 23(b)(2) provides that a class action may be maintained if -
the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

4In denying the City’s motion to dissolve the preliminary injunction in May 2019, the district court noted that the case was set on the court’s trial docket “in August” and that the court “can best determine whether continued injunctive relief is warranted after all the evidence has been heard and the case submitted for decision.” At oral argument, counsel for plaintiffs stated that they “want more discovery” before trial. On remand, if plaintiffs seek or request additional discovery, the district court is directed to dissolve the preliminary injunction forthwith.
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The district court after lengthy discussion concluded that plaintiffs satisfy the four Rule 23(a) requirements. The court then concluded with little analysis that it is “patently obvious” that the City “‘acted or refused to act on grounds generally applicable to the class’ based on the protestors’ allegations that the police had unconstitutionally declared an unlawful assembly and dispersed the protestors,” quoting Multi-Ehnic Immigrant Workers Org. Network v. City of Los Andeales, 246 F.R.D. 621 (C.D. Cal. 2007). We will address only the Rule 23(b)(2) issue.
Rule 23(b)(2) class certification may be proper when the primary relief sought, as in this case, is declaratory or injunctive. See Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010). “Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). However, because unnamed class members are bound without an opportunity to opt out, a Rule 23(b)(2) class requires even greater cohesiveness than a Rule 23(b)(3) class seeking damages:
Injuries remedied through (b)(2) actions are really group, as opposed to individual injuries. The members of a (b)(2) class are generally bound together through preexisting or continuing legal relationships or by some significant common trait such as race or gender.
St. Jude, 425 F.3d at 1122 (cleaned up). Thus, when named plaintiffs attempt “to aggregate a plethora of discrete claims . . . into one super-claim’” against a government agency, without demonstrating “that the class members have been harmed in essentially the same way,” the proposed Rule 23(b)(2) class is deficient. M.D. ex. rel. Stukenberg v. Perry, 675 F.3d 832, 848 (5th Cir. 2012) (cleaned up). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).

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The named plaintiffs in this case are not “bound together through preexisting or continuing legal relationships or by some significant common trait.” Ahmad intentionally violated state and local ordinances at the time she was maced. Mobley was allegedly recording a protest against police when police detained him and seized his phone. Lewczuk was an “observer” of, not a participant in, the protests when she was arrested. Nor did the named plaintiffs and putative class members allegedly experience the same harms. They allege, among other claims, use of chemical agents in violation of the Fourth Amendment, interference with the right to film police activity in violation of the First Amendment, and being arrested for unlawful assembly or failure to disperse without adequate warning and an opportunity to comply. Each of these fact-intensive claims requires different proof to establish the alleged constitutional violation.
Plaintiffs in their motion for class certification and on appeal made no attempt to define precisely what permanent injunctive relief they are seeking on behalf of various members of the putative class. It is apparent they seek broad injunctive relief that does not “relate only to a single policy regarding one particular [injury],” as in Postawko, 910 F.3d at 1040, on which they rely. When liability does not apply uniformly to the entire class, the relief sought becomes highly individualized, and “the cohesiveness necessary to proceed as a class under [Rule 23](b)(2) is lacking.” Ebert v. General Mills, Inc., 823 F.3d 477, 480 (8th Cir. 2016), citing Dukes in reversing a Rule 23(b)(2) certification order. We conclude class certification was granted prematurely. Given the individualized inquiries plaintiffs’ disparate claims require, “the massive class action certified neither promotes the efficiency and economy underlying class actions nor pays sufficient heed to the federalism and separation of powers principles emphasized in Rizzo v. Goode, Lewis v. Casey, and other cases.” Elizabeth M. v. Montenez, 458 F.3d 779, 788 (8th Cir. 2006).5

5In Rizzo v. Goode, 423 U.S. 362, 378 (1976), a suit against the Mayor and Police Commissioner of Philadelphia, the Court observed: “Where, as here, the
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Plaintiffs seek permanent injunctive relief directing the City of St. Louis how to handle future protests. There will be no monetary remedies in this action. Individual damage actions by putative class members against particular police officers are already pending. Plaintiffs make no showing a class-wide injunction will be needed to ensure compliance by the City with any permanent injunction granted the named plaintiffs. “When the defendant is not a private citizen but a government actor, there is a rebuttable presumption that the objectionable behavior will not recur.” Chicago United Inds., 445 F.3d at 947.
Moreover, the premature grant of class certification has seriously delayed the prompt trial on the merits of plaintiffs’ claims for permanent injunctive relief that the mandatory nature of the preliminary injunction requires. Accordingly, we vacate the class certification order without prejudice to plaintiffs renewing their request after a final order has been entered on their claim for permanent injunctive relief, at which point the district court can better assess whether a Rule 23(b)(2) class is appropriate and necessary to afford proper equitable relief. “The remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established. . . .This is no less true with respect to class actions than with respect to other suits.” Lewis, 518 U.S. at 357.
III. Conclusion
For the forgoing reasons, the orders of the district court are modified and the case is remanded for further proceedings not inconsistent with this opinion.

exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.”
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ERICKSON, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority’s analysis and conclusion in Part II that the class certification order should be vacated without prejudice. I write separately with regard to the first part of the majority’s opinion because I believe the City’s failure to appeal the preliminary injunction, which was an appealable interlocutory order under 28 U.S.C. § 1292(a)(1), divests the City of the opportunity to contest the merits.
Courts generally have jurisdiction to review interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1). However, if an injunction is granted and not appealed, we lack jurisdiction to review an order that denies a request for reconsideration of that injunction. Gooch v. Life Ins. Co. of Am., 672 F.3d 402, 414–15 (6th Cir. 2012); Weight Watchers Int’l, Inc. v. Luigino’s Inc., 423 F.3d 137, 141 (2d Cir. 2005); see also Mikel v. Gourley, 951 F.2d 166, 168–69 (8th Cir. 1991) (noting the court would lack jurisdiction over an order clarifying rather than modifying an existing injunction).
In its motion, the City did not identify any “subsequent changes in the facts or the law” to support a modification or dissolution of the injunction.6 Omaha Indem. Co. v. Wining, 949 F.2d 235, 239 (8th Cir. 1991) (citations omitted). Even though the City captioned its motion as a request to “dissolve” the injunction, the essence of its motion was a request to reconsider the injunction. That the City relied on evidence existing before the district court entered the preliminary injunction is fatal and should have ended the inquiry because we lack jurisdiction to review a request for reconsideration. See Gooch, 672 F.3d at 415–16; see also AngioDynamics, Inc. v.

6Even if Fed. R. Civ. P. 60(b) is an appropriate vehicle for review, in my opinion, the outcome would be the same since the City failed to demonstrate a change in fact or law.
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Biolitec AG, 880 F.3d 596, 599 (1st Cir. 2018) (per curiam); Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005).

I do not believe that the “passage of time” alone constitutes sufficient “changed circumstances” to dissolve a preliminary injunction. This is all the more true where, as here, the substantial delay that the majority found converted the preliminary injunction into a permanent injunction is largely attributable to unique circumstances that are unlikely to be replicated in the future. They include failed attempts to mediate, the hiring of new counsel, the COVID-19 pandemic, and the general difficulty in holding court due to civil unrest during the summer of 2020. While a prompt trial is essential to our justice system, I am not convinced that under these unique circumstances it is appropriate to treat the preliminary injunction as though it was a permanent injunction.

As the district court noted, the City’s motion “amount[ed] to nothing more than an attempt to reargue the preliminary injunction motion with new counsel and more strident rhetoric.” While I share the majority’s concerns about the breadth of the preliminary injunction, those concerns do not obviate the requirement that a party seeking to dissolve a preliminary injunction must first demonstrate a change in circumstances. Cf. Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1200 (10th Cir. 2018) (requiring a change in circumstances even in institutional reform litigation). If the passage of time alone is sufficient to dissolve a preliminary injunction, an injunction will be “indefinitely open to challenge” long after the deadline to appeal the merits has passed. Favia v. Ind. Univ. of Pa., 7 F.3d 332, 337 (3d Cir. 1993).

Because the City failed to identify a sufficient change in the facts or the law, I believe the appeal from the order declining to dissolve the preliminary injunction should have been dismissed for lack of jurisdiction.
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APPENDIX

IT IS HEREBY ORDERED that plaintiffs’ motion for preliminary injunction [10] is granted and defendant City of St. Louis and its agents, servants, employees, and representatives will not enforce any rule, policy, or practice that grants law enforcement officials the authority or discretion to:

1) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 when the persons against whom it would be enforced are engaged in expressive activity, unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence;

2) Declare an unlawful assembly under St. Louis Code of Ords. §15.52.010 or enforce St. Louis Code of Ords. §17.16.275(A) and (E) for the purpose of punishing persons for exercising their constitutional rights to engage in expressive activity;

3) Use chemical agents, including, but not limited to, mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances (collectively “chemical agents”), whatever the method of deployment, against any person engaged in expressive, non-violent activity in the City of St. Louis, in the absence of probable cause to arrest the person and without first issuing clear and unambiguous warnings that the person is subject to arrest and such chemical agents will be used and providing the person sufficient opportunity to heed the warnings and comply with lawful law enforcement commands or as authorized in paragraph 5 below;

4) Use or threaten to use chemical agents, whatever the method of deployment, against any person engaged in expressive, non-violent activity in the City of St. Louis, for the purpose of punishing the person for exercising constitutional rights; and

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5) Issue orders or use chemical agents, whatever the method of deployment, for the purpose of dispersing person(s) engaged in expressive, non-violent activity in the City of St. Louis without first: specifying with reasonable particularity the area from which dispersal is ordered; issuing audible and unambiguous orders in a manner designed to notify all persons within the area that dispersal is required and providing sufficient warnings of the consequences of failing to disperse, including, where applicable, that chemical agents will be used; providing a sufficient and announced amount of time which is proximately related to the issuance of the dispersal order in which to heed the warnings and exit the area; and announcing and ensuring a means of safe egress from the area that is actually available to all person(s);
Provided, however, that paragraph (3) and (5) above do not apply to situations where persons at the scene present an imminent threat of violence or bodily harm to persons or damage to property, or where law enforcement officials must defend themselves or other persons or property against imminent threat of violence.
IT IS FURTHER ORDERED that this preliminary injunction becomes effective upon plaintiffs’ posting security in the amount of $100 with the Clerk of Court, and remains in effect until further order of this Court.
A separate Preliminary Injunction in accord with this Memorandum and Order is entered this date, as is a separate order referring this case to mediation.

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