August Newsletter (Issue 08-2017)

Permit To Use Park Does Not Violate Free Speech Clause

Facts: In 1994, the Village of Twin Oaks (Village) dedicated an 11-acre public park in the middle of the community; the park includes a walking trail, lake, waterfall, gazebo, bridge, playground, and sporting amenities.  To protect this new resource, the Village Board enacted a comprehensive ordinance prohibiting, among other things, motorized vehicles, hunting, all commercial activity, and the obstruction of walkways.  In 2011, the Village upgraded the park’s playground equipment, and the park experienced a dramatic increase in visitors, including a large number of commercial photographers. Due to the gazebo, waterfall, bridge, and other garden structures, one photographer referred to the park as presenting “a lot of good photo opportunities in a small area.”

Commercial photographers (as many as eight at a time) and their subjects began competing for shooting locations within the park.  Wedding parties would congregate for photos on the park bridge.  Photo subjects would occupy the park restroom facilities, using them as dressing rooms.  Some photographers would even set up outdoor studios in the park for shooting multiple subjects in an assembly-line fashion.  In reaction to this increased traffic and in response to the Village residents’ complaints, the Board erected signs notifying photographers of the longstanding ordinance prohibiting commercial activity within the park.  Havlak filed this lawsuit to enjoin enforcement of the ordinance and to declare the ordinance a violation of her right of free speech.

Havlak is a professional photographer based in St. Louis whose work is described as conveying an expressive message in a manner similar to the work of American portrait painter John Singer Sargent.  Havlak maintains the copyright to all her photographs and licenses them to her clients for personal use only.  Every year, she photographs hundreds of senior class portraits and more than a dozen weddings.  Her photo shoots usually last for less than an hour and feature only a handful of people.  Despite knowing about the park for more than ten years, she had never used it for photography before filing this suit.  Havlak testified that she had taken photographs in the park on two occasions.  Both times, she saw at least three other photographers and their subjects in the park.  During one of these shoots, Havlak instructed her client to change clothes in a wooded area and to pose outside the railing on the park bridge; it is undisputed that “a fall from the bridge could cause serious injury.”

In response to the lawsuit by Havlak, the Board amended its park ordinance to create a permit process for the commercial use of park facilities (Ordinance).  The Ordinance required a $100 fee for the permit, which offset the cost of issuing the permit, administering it and the cost of a policeman.  The Ordinance distinguished between commercial activities that lasted longer than one hour or exceeded 10 people or conflicts with a period of peak visitation to the park or other scheduled events, activities, or operations by requiring permits for activities lasting longer than 1 hour, exceeded 10 people, or conflicted with other scheduled events.  If the activity fell within the factors the responsible party needed to submit a permit request at least 14 days prior to the event.  No permit was ever refused by the Village. (The substantive part of the Ordinance is shown in FN# 2 of the Opinion.)

Havlak claimed that the Ordinance, which required her to obtain a permit, violated her First Amendment Right of Free Speech.  She filed a 1983 lawsuit in Federal District Court; thereafter, the matter was submitted on a motion for summary judgment, which the District Court sustained resulting in an appeal by Havlak to the Eighth Circuit.

Opinion: The Eighth Circuit concluded that the Ordinance was content neutral because it did not reference any specific message or messenger.  There was no evidence that the Village shows antipathy for these values; furthermore, the ordinance did not restrict either commercial or non-commercial photographers from expressing these ideals.  “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”

The Ordinance was adopted to meet a “significant government interest by reducing congestion and maintaining safety.” “Given the high demand, the history of congestion, and the limited facilities of the park, the ordinance’s lack of a permit exception for groups smaller than ten people does not create a constitutional infirmity.”

The Court concluded that “the permit processing times included in the ordinance are narrowly tailored to the significant interests of the Village’s efficient administration of its governmental duties.”  In addition, there were alternative sites for taking pictures and parks throughout the St. Louis area.  The Court concluded that: “The plain language of the ordinance guarantees permit approval for events consisting of less than ten people, for less than an hour, and submitted 48 hours in advance.  For larger events, the Board may look only at legitimate factors relating to park use and safety when analyzing a permit application.” “While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”  Havlak v. Village of Twin Oaks, (8th Cir. 16–3377, 07/26/17)

Comment Howard: One of the most difficult tasks a local government attorney can have is drafting a regulatory ordinance that affects free speech.  Special kudos for the attorneys that were involved in this case as noted by the following comment in the IMLA eNews of cases.

“The case reflects the superlative work by Paul Rost, City Attorney for Twin Oaks who drafted the ordinance; John Hessel at Lewis Rice, who represented the City and developed a successful trial strategy and record for appeal; and Helmut Starr of Curtis, Heinz, Garrett and O’Keefe who represented IMLA pro bono. IMLA thanks the Missouri Municipal League for its support through the IMLA Lite program that made the small village of Twin Oaks, an IMLA member, IMLA eligible for our assistance.”

Harris–Stowe State University Gets Hit With Five Million Dollar Lawsuit

Harris–Stowe State University (Harris–Stowe), located in the City of St. Louis recently lost an employment discrimination case based on race (black on white) where the jury awarded almost $5 million ($1,350,000 in compensatory damages and $3,500,000 in punitive damages, plus attorney fees).

No great principles of law evolved from this case; however, the facts illustrate a pattern of discrimination, making it well worth the read showing the five million dollar verdict was justified.  The Court characterized the actions of the Harris–Stowe Board this way:

“In a time where claims of discrimination are most often proven through circumstantial evidence due to the covert and subtle nature of discriminatory conduct, this case stands apart. Rarely have we seen such manifest and open evidence of racial discrimination.”

I have found in employment discrimination matters, that a checklist helps me weigh the strengths and weaknesses of the case, particularly from the standpoint of how the evidence would adversely affect my ability to defend the case for my employer.  The Harris-Stowe case provides a backdrop for a good checklist based on the examination of the facts, which shows why the jury awarded the former employee such a large verdict. Below is a list of things that made the Harris-Stowe case a nightmare to defend.

  • Past Performance Ratings – Of course, always check to see how the employee performance was rated in the past.  It is not unusual to find that the performance of the employee at time of the employment action was unsatisfactory, even though past performance ratings were satisfactory or even excellent as was the situation with Wilkins, the employee in Harris-Stowe.  Wilkins performance ratings were excellent from 2001 until 2010 when the employment action was taken.  In fact, a recent performance rating, just prior to the termination of Wilkins gave her an excellent rating.


  • Bad Statements – You always look for bad statements in the work place by supervisors or fellow employees since these can have a tremendous impact on the outcome of the case.  In the Harris-Stowe case Smith, the Dean of the Education Department had repeatedly proclaimed her belief in “black power” prior to being appointed Dean.  Despite an order from the court directing that Harris–Stowe protect emails some emails were deleted.  These emails purportedly contained statements that the Board wanted to make the department “Blacker” at the expense of white employees leading to an instruction in the jury trial that was adverse to Harris–Stowe.


  • Failure To Follow Normal Procedures- Wilkins, the employee terminated in Harris-Stowe, notified the president, vice-president, Dr. Smith, and the human resources director by email that her termination did not comply with HSSU’s policies and that she was contemplating legal action.  HSSU’s officials considered this email to be a complaint of race discrimination. HSSU policy required that all complaints of race discrimination in the employment process were to be investigated, which did not happen.


  • Reason Given For Termination Was Pretextual –The termination of Wilkins did not comport with Harris-Stowe existing policy on reducing its work force. Under the reduction-in-force policy, Harris–Stowe was required to terminate non-adjunct faculty by seniority.  Contrary to its internal policies, Harris-Stowe officials terminated Wilkins over the less senior African-American instructors while adding teaching staff, which made the effort to reduce the budget deficit look nonsensical.

Failure to have a policy of progressive discipline; treating Wilkins with contempt while removing her from the Harris-Stowe campus; hiring new teachers despite the budget reductions when Harris-Stowe was engaged in a reduction of its workforce due to budget limitations; and failure to explain in any way why the Wilkins was terminated explain the large verdict.  This list could go on and on.  Wilkins vs. Board Of Regents Of Harris – Stowe State University, et al., (ED104354, 06/06/17)

Comment Howard: I tip my hat to lawyers who handled the Harris–Stowe case based on their masterful assembling of the facts that completely destroyed Harris–Stowe defenses.  I am also saddened by the loss of resources for the University.

I Can Not Believe We Bought The Entire Golf Course

Facts and Procedural History: Jim Hull and Nancy Hull (Hulls) purchased a golf course from Mr. Hull’s parents in 2005.  The Hulls resided on the golf course in a structure referred to as the clubhouse, part of which is used to conduct golf-course business. Beginning in 2007, when the Pleasant Hill School District (District) cleared and re-contoured a marshy, wooded area to create practice fields near the high school, storm water and silt from the District’s property started pouring onto the Hulls’ adjacent nine-hole golf course, rather than seeping onto it as before.  The flooding overwhelmed the drainage systems that were in place on the Hulls’ property to keep the golf course dry and its lakes clean and within their beds.  Though the flooding did not cover the entire acreage, when it occurred, all nine holes could not be played and the greens were at risk from saturation.

After bringing the situation to the District’s attention, Mr. Hull was assured by the District’s facilities director that efforts would be made to correct the problem.  While promising the Hulls over the years that each new District construction project would address the flooding, the District actually exacerbated the problem by adding additional impervious surfaces to the District’s property and directing new drainage pipes to empty near the golf course.  As the flooding continued, compromising the golf-course infrastructure, the Hulls continued to try to work with the District to solve the problem.

Finally disclaiming any responsibility, the District in 2013 refused to further discuss the matter.  Thereafter the Hulls filed an inverse-condemnation suit against the District in 2014.  Following a four-day trial, the jury found that the District had totally and permanently taken the Hulls’ property by inverse condemnation on October 16, 2013, and awarded them $3 million.  The District appealed to the Western District.

Opinion: When Was The Property Purchased? The District argued that the Hulls’ did not purchase the property until 2009, when a deed was recorded transferring the golf course property from the parents of Hulls to the Hulls.  In conjunction with this argument, the District claimed that the flooding was first ascertainable 2007, after the District improved a marshy area of the Districts’ property for use as playing fields for the District.  The premise of this argument was that a damage claim “based on inverse condemnation [does] not pass to subsequent grantees of the land.”  The Court noted that the recording of a deed does not create title. “It rarely imparts notice of the title.” The court concluded that there was nothing in the recording statute to suggest that there was intent under the statute to establish a property interest by recording a deed.

In addition, the Hull’s were in possession of the golf course property since 2005 when they established their residency in the golf course clubhouse and took possession of the golf course.   All of the evidence, other than the date when the deed was recorded, showed that the Hulls owned the golf course prior to 2007 before the flooding occurred.

When Did the Taking Occur? In addition, even though flooding initially occurred in 2007, the evidence showed that a permanent taking occurred in October 2013, at which time the District made it clear that it was not going to do anything with respect to the flooding of the golf course.

Partial or Permanent Taking: The District also argued that the jury should have been instructed on a partial taking claim instead of a claim for a total taking.  The evidence showed that even though the entire property did not flood the golf course was not usable because some of the holes were unplayable, and the flooding cut off access to others, damaged cart paths, and overwhelmed the golf course drainage system thereby preventing the use of the golf course.  In an inverse condemnation claim it is not necessary to show that the entire property is unusable, only that the property cannot be used for its intended use, playing golf in this case.  The evidence was sufficient to show that there was a total permanent taking.  The trial court rejected the Districts request for a jury instruction with respect to a partial taking, based upon existing Missouri case law that held that when the pollution of a steam prevented the use of the rest of the property for grazing cattle it was a complete taking.  Hull et al., v. Pleasant Hill School District, (WD79302 and WD79318, 06/06/17)

Gender Identity Is Not Sex Discrimination

Facts: R.M.A. filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR) alleging discrimination in public accommodation based on sex.  The MCHR issued a notice of right to sue and R.M.A. then filed suit against the School District and the School Board (collectively “Defendants”) alleging discrimination in the use of a public accommodation “on the grounds of his sex.”

Specifically, R.M.A.’s petition alleged that Defendants’ exclusion from the boys’ restrooms and locker rooms subjected him “to different requirements for accessing the services of the school because of his sex.”  R.M.A.’s petition alleged that he is a female to male transgender teenager who transitioned to living as a male in September 2009.  R.M.A.’s petition further alleged that his name was legally changed in 2010 to a name traditionally given males, that School District records reflected his name as changed, and that he received a court order authorizing the amendment of his birth certificate from female to male in December 2014.  (FN3 cites the statute that allows for changes to your sex on your birth certificate if there has been a surgical procedure to change the sex of person.) R.M.A.’s petition alleged that access to the same locker rooms and restrooms as other boys who participate in physical education was denied by the Defendant’s because R.M.A. “is transgender and is alleged to have female genitalia.”

The Defendants filed a motion to dismiss R.M.A.’s lawsuit for failure to state a claim upon which relief could be granted asserting that the Missouri Human Rights Act (Act) does not extend its protection to claims based on gender identity, which motion was sustained. R.M.A. appealed to the Western District.

Opinion: R.M.A. alleged that the trial court erred because the Act prohibits sex discrimination in public accommodation, including discrimination on the basis of gender-related traits.  The Court noted that in order to succeed on this point, R.M.A. must demonstrate that his petition includes averments, which invoke principles of substantive law that entitle R.M.A. to relief.

The Act provides that it an unlawful discriminatory practice for any person to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation or to segregate or discriminate against any such person in the use thereof on the grounds of sex.

An earlier decision by the Western District in Pittman held that the meaning of the world “sex” for the purpose of employment discrimination did not include “sexual orientation” making it clear that the legislature did not intend to include “sexual orientation” as a protected category under the Act.  This time the Western District took a different analysis of the statutory history of the Act, (then in Pittman) by going through a review of the history of changes to the MHRA, concluding that the statutory history made it clear that the legislature did not intend to include within the definition of “sex” the concept of sexual orientation because it intended the word “sex” to relate to “gender related traits.” R.M.A. v. Blue Springs School District, (WD80005, 07/18/17)

Comment Howard: There was a vigorous dissent by Judge Gabbert, who also dissented in the Pittman case, although the dissent in this case, while relying upon his analysis in the Pittman case, takes a different tack.  In this case, Judge Gabbert, noted that in Pittman the majority opinion concluded that the word “sex” plainly refers to one of the two divisions of human beings designated as male or female; therefore, the statute as interpreted by the court in Pittman does not cover sexual preference; therefore, there was no reason to go beyond Pitman to decide this case.

Judge Gabbert point was that “but for” M.M.A.s sexual anatomy (or perceived sexual anatomy) the alleged discrimination would not have occurred.  Judge Gabbert askes the question why that is not discrimination based on sex?  It seems to me that the issues in this case are not going to go away until we get a definitive opinion by the Missouri Supreme Court or the United States Supreme Court.

Michael Brown Incident In Ferguson – When Has A Person Been Seized For The Purpose Of Making An Arrest And When Has Unnecessary Force been Used?

Facts and Procedure: Based on the facts alleged in the complaint Dorian Johnson and Michael Brown, Jr., were walking down Canfield Drive in the City of Ferguson, (City).  Officer Wilson approached both men in his police car and told them to “Get the f*ck on the sidewalk.”  Officer Wilson drove past the two men and then reversed his car, parking so as to block Johnson and Brown’s path to the street leaving open a direct line to the sidewalk.  Officer Wilson opened his door, striking Brown, and then grabbed Brown and threatened to shoot his gun.  While Brown struggled to break free, Officer Wilson discharged his gun twice, striking Brown in the arm.  At all times during this encounter, Johnson was standing next to Brown.

After Officer Wilson shot Brown in the arm, Brown and Johnson ran away from Officer Wilson.  Officer Wilson did not order Brown and Johnson to “stop” or “freeze.”  Rather, Officer Wilson fired his service weapon at the two men, striking Brown several times and killing him.

Johnson filed a lawsuit, pursuant to 42 U.S.C. § 1983, naming Officer Wilson, the City of Ferguson, and Chief Jackson as Defendants.  Johnson alleged that Officer Wilson’s actions constituted an unlawful seizure and use of excessive force, in violation of his rights under the Fourth and Fourteenth Amendments.  Further, Johnson alleged that the City of Ferguson and Chief Jackson engaged in policies that resulted in the violation of Johnson’s civil rights, including failure to train and supervise officers and condoning unconstitutional law-enforcement practices.

The defendants then filed a motion to dismiss based on qualified immunity, which was denied by the district court.  Defendants appealed to the 8th Circuit.

Opinion: Since this case was an appeal from a denial of a motion to dismiss the Court only reviewed the facts as alleged in the complaint to determine if they were sufficient to state a cause of action.

Seizure: The Court described the crux of the matter as whether or not Officer Wilson’s actions in driving past the two men, reversing his car and parking it so as to block Johnson and Brown’s path was a seizure, leaving an unblocked direct path to the sidewalk.  In order to determine if a seizure has occurred, you look to the totality of circumstances surrounding the incident to determine if a reasonable person would have believed he or she was free to leave.  The courts apply an objective test to determine whether or not there was a show of authority, sufficient to make a reasonable person believe their movement was restricted.  Officer Wilson argued that the angle of the cruiser indicated that only the path to the open road was blocked and that Johnson could have walked around the officer’s car to the sidewalk.

In order to establish 1983 liability, a seizure must also be unreasonable.  In this case, Johnson and Brown were walking peacefully in the middle of a street, in violation of a municipal ordinance, which was a misdemeanor.  Once Officer Wilson parked his car he got out and forcefully struck Brown with his car door.  The facts, as alleged, state that Brown and Johnson did not flee or resist arrest (until after the seizure); therefore, Johnson sufficiently alleged a seizure.

In order for there to be liability there has to be a clearly established constitutional violation.  Defendants offered no arguments to rebut the argument of Johnson because it was clearly established by case law that Officer Wilson could not use deadly force in these circumstances.  The Court reasoned based on case law that even the use of a Taser on a person who was not resisting arrest or fleeing was unjustified and constituted unreasonable force; therefore, the use of a firearm, which is more deadly than a Taser, constituted the use of unreasonable force.  The law was clearly established as a matter of law at the time this incident occurred; therefore, qualified immunity for the officer Williams and Chief Jackson was denied.

Supervisor Liability: Johnson claimed that the police chief failed to train and supervise and discipline City police officers regarding unlawful seizures and use of excessive force.  The Chief argued that he was entitled to qualified immunity and that the district court erred when it denied his motion to dismiss.  The court noted that when a supervising official has no direct involvement in the alleged constitutional violation and is sued for failure to train or supervise the supervisor is entitled to qualified immunity unless the plaintiff can prove that the supervisor received notice of a pattern of unconstitutional acts and was deliberately indifferent to or authorized the facts.  The Police Chief rarely reviewed offense reports, and has never overruled a supervisor’s determination of whether a use of force fell within the City’s’ use of force policy.

The allegations asserted that the Chief received reports involving use of force showed that he was put on notice about the conduct of City police officers.  Furthermore, by failing to review reports and hold officers accountable for excessive force, Chief Jackson was deliberately indifferent to the unconstitutional practices carried out by Ferguson police officers.  As a result, the district court did not err by denying Chief Jackson qualified immunity.  Johnson v. City of Ferguson, (8th Cir., 16-1697, 07/25/17)

Comment Howard: There was a dissent in this case, which argued that there could be no seizure without actual submission, and that there was a direct unblocked line of travel back to the sidewalk.  Johnson was not physically restrained nor prevented Johnson from traveling to the sidewalk.  If you are looking for case to determine whether or not a seizure has occurred this is a good case to review because in my opinion the court pushes the envelope as far it can go.  In addition, liability for failure to properly supervise by the police chief is very interesting because the Chief was passive with respect to his obligations to supervise the conduct of his officers to prevent the use of unnecessary force.  Considering current day events it may be worthwhile to review Police Department policies concerning the use of unnecessary force.

Crowd Control – Unlawful Demonstrators And Excessive Force Claims – Michael Brown Ferguson Demonstrations

Facts: on August 9, 2014, Ferguson police officer Darren Wilson shot Michael Brown, Jr. killing him.  In the following days, large crowds gathered in Ferguson, and turned violent.  Individuals threw objects at the police, discharged firearms, looted businesses, and set a convenience store on fire. The Ferguson Police Department requested assistance from the St. Louis County Police Department and from other municipal police departments located in the county.

Plaintiffs, who were arrested while participating in an unlawful demonstration after the Michael Brown shooting filed a 1983 action claiming multiple violations of their constitutional rights under federal and state law.  These actions involved six sets of Plaintiffs who alleged various state and federal claims against the individual Defendants.  The Defendants filed motions for summary judgment, which were granted.  Specifically, the court granted the individual defendants official immunity on plaintiffs’ state law claims after concluding that plaintiffs had presented no evidence that defendants had acted with malice or bad faith.  The individual defendants were granted qualified immunity on plaintiffs’ § 1983 unlawful arrest claims for the reason that the individual defendants had probable cause or “arguably probable cause” to make all of the arrests in question.  The court also granted the individual defendants qualified immunity on plaintiffs’ § 1983 excessive force claims.  Finally, the court also granted defendants summary judgment on plaintiffs’ § 1983 failure to train, supervise, and discipline claims because plaintiffs had failed to overcome summary judgment against any of the individual defendants.

Thereafter, the Plaintiffs appealed to the Eighth Circuit.

Analysis: While each set of Plaintiffs involved facts unique to their situation the Court first discussed overarching legal principles with respect to making arrests while dispersing a crowd engaged in unlawful activity and using excessive force.

Unlawful Assembly – A warrantless arrest does not violate the Fourth Amendment if it is supported by probable cause or where there is at least “arguable probable cause,” or where an officer mistakenly arrests a suspect believing it is based on probable cause if the mistake is “objectively reasonable.”

Missouri law provides that a person is guilty “of refusal to disperse if, being present at the scene of an unlawful assembly, or at the scene of a riot, 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 or riot.”  In addition, Missouri statutes state that: An unlawful assembly occurs if a person “knowingly assembles with six or more other persons and agrees with such persons to violate” the law.  Furthermore, case law provides that a person can join an unlawful assembly by not disassociating from the group assembled and by knowingly joining or remaining with the group assembled after it has become unlawful and an order was given to disperse, which was not obeyed.

As you can see the scope and breadth of Missouri law, with respect to unlawful assemblies, is extremely broad giving law enforcement official’s significant authority and tools to deal with unlawful assemblies and riots like those in Ferguson.  Next the Court applied these broad basic principles to specific claims.

Failure To Obey a Lawful Order: The above principles allowed law enforcement to arrest persons to disperse after an order was given to disperse or even to passengers in a car when they failed to disperse.

Police officers McCain and Hill did not violate the right  of certain Plaintiff’s to assemble because the Defendant’s were entitled to qualified immunity under federal law since the Plaintiff’s failed to show evidence of bad faith or malice.  Similarly the claims of Plaintiff’s who were riding in a car as passengers failed because they chose not to dissociate from the unlawful assembly having been given an order to disperse and choosing thereafter not to disperse.  A person can join an unlawful assembly by not disassociating himself or herself from the group assembled and by knowingly joining or remaining with the group assembled after it has become unlawful.  The officers had at least “arguable probable cause” to arrest demonstrators for refusal to disperse and were therefore entitled to qualified immunity because the plaintiffs failed to show malice or bad faith by the officers.  Missouri claims also failed because the officers were exercising discretion and were therefore entitled to official immunity.

Of interest, is the Courts distinction between qualified immunity under federal law and official immunity under state law.  Qualified immunity under federal law allows a person claiming a violation of the constitutional rights to defeat a claim by showing that the law enforcement official was acting in bad faith or with malice.  Official immunity, under Missouri law is the functional equivalent of qualified immunity under federal law except under Missouri law (official immunity) there is has no exception with respect to whether or not the official was acting in bad faith or with malice.

Excessive Force Claims: Excessive force claims under the Fourth Amendment are governed by a reasonableness standard.  Analyzing “whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Applying this balancing test “requires careful attention to the facts and circumstances of each particular case, including 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.”

During an arrest a police officer is entitled to make the arrest using some degree of force; therefore, pushing the Plaintiff Matthews, to the ground and placing a knee on his back while the Officer was placing Matthews under arrest and into the police vehicle did not constitute excessive force, thereby allowing the police officer to claim qualified immunity.

The Eighth Circuit found that the district court erred in granting police officers qualified immunity with respect to Matthews claims excessive force claims because he claimed the officers held his head under water for 3 to 5 seconds, pepper sprayed him, and took turns punching and kicking him for 2 to 3 minutes.  Police Officers vehemently denied that this occurred; consequently, the officers were not entitled to summary judgment on the excessive force claim with respect to Matthews because there was a dispute of fact that would have to be settled by a jury.

Matthews also asserted that claim against unidentified police officers that performed these acts.  Even though 1983 liability is personal requiring a plaintiff to show each defendants personal involvement in the alleged violation, the identification of several of the officers using excessive force was sufficient to make a claim against unidentified participants.  A 1983 excessive force claim does not require the plaintiff to personally identify all of his assailants to avoid summary judgment because other evidence showed that some officers, who were identified, used excessive force.  White v. Jackson, (8th Cir. 08/01/17)

Comment Howard: It is comforting to know that Missouri law provides a very high degree of protection for local government officials with respect to unlawful assemblies.  If the standard procedures for police officers do not cover this subject you need to include this in your SOP and train your officers accordingly.  It seems that the early disbursement of unlawful gatherings is the first defense against violence.  Of course, the devil is in the details of executing a plan to get citizens to disperse.  It is worth noting that some of the excessive force claims were defeated by videos showing what actually happened.  The Plaintiff’s characterization of the incidents was completely at variance with the Defendant’s characterization and with the videos clearly showing that the Plaintiff’s allegations were untrue.