Michael Faulk v. Gerald Leyshock

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1116
___________________________
Michael Faulk
lllllllllllllllllllllPlaintiff - Appellee
v.
City of St. Louis, Missouri
llllllllllDefendant
Gerald Leyshock, Col., in his individual capacity, et al.
lllllllllllllllllllll Defendants - Appellants
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29 Media Organizations; Reporters Committee for Freedom of the Press
lllllllllllllllllllllAmici on Behalf of Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: December 16, 2021
Filed: April 6, 2022
____________
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
____________
LOKEN, Circuit Judge.*
This is one of numerous lawsuits arising out of protests and unrest on
September 15 to 17, 2017, following the acquittal of former St. Louis Metropolitan
Police Department (“SLMPD”) Officer Jason Stockley in the killing of Anthony
Lamar Smith. For an overview of the events, the reader is referred to Eastern District
of Missouri Judge Catherine D. Perry’s November 15, 2017, opinion granting a
preliminary injunction against the City of St. Louis regarding enforcement of its
unlawful assembly ordinance and use of chemical agents against persons engaged in
expressive, non-violent activity. Ahmad v. City of St. Louis, No. 4:17 CV 2455 CDP,
2017 WL 5478410, at *1-5 (E.D. Mo. Nov. 15, 2017).1 This opinion followed a
three-day evidentiary hearing at which eighteen witnesses testified. A flood of
§ 1983 damage actions followed. We list actions we are aware of in Appendix A.
In this action, journalist Michael Faulk alleges he was unlawfully assaulted,
pepper sprayed, detained in an unlawful mass arrest, and incarcerated for thirteen
hours. He sues the City of St. Louis and multiple SLMPD officers for First, Fourth,
and Fourteenth Amendment violations, conspiracy to deprive him of civil rights, and
supplemental state law claims. As relevant here, one defendant, SLMPD Officer
James Wood, moved to dismiss the § 1983 claims, arguing Faulk’s amended
complaint failed to state a claim and Wood is entitled to qualified immunity. See Fed.
R. Civ. P. 12(b)(6). Five months later, the individual defendants filed a Rule 12(c)
motion for judgment on the pleadings on the conspiracy claim, arguing they are
entitled to qualified immunity because the claim is barred by the intracorporate
conspiracy doctrine. The district court denied both motions in separate orders the
*Judge Stras joins in all but Part III.A of this opinion.
1
When the City appealed further proceedings in the district court, we modified
the preliminary injunction and remanded with directions. Ahmad v. City of St. Louis,
995 F.3d 635, 643 (8th Cir. 2021). But the initial decision was not questioned.
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officer defendants now appeal. We have jurisdiction to review an interlocutory order
denying qualified immunity “to the extent that it turns on an issue of law.” Mitchell
v. Forsyth, 472 U.S. 522, 530. Reviewing both rulings de novo, interpreting the
complaint in favor of Faulk, the non-moving party, and assuming well-pleaded facts
as true, we reverse. See Buckley v. Hennepin Cty., 9 F.4th 757, 760 (8th Cir. 2021)
(standard of review).
I. Background
Faulk’s amended complaint alleges that he followed demonstrations in and
around downtown St. Louis on his bicycle the afternoon and evening of September
17, wearing his media ID card and frequently tweeting updates and posting images.
In the evening, after cycling to the Olive Street and Tucker Boulevard intersection,
he saw a line of police officers approach from the west and order those gathered to
move west on Locust Street or north on Tucker. Faulk and many others complied.
Four lines of police officers then formed a “kettle” at the Tucker-Washington
intersection, blocking all means of egress. Faulk asked to leave, shouting “Post
Dispatch” and displaying his press credentials. He was ignored. Officers yelled
“Stop Resisting” and “Get Down,” indiscriminately pepper spraying the crowd. Faulk
went to the ground, kneeling over his bicycle. He was grabbed, struck with a police
baton, pepper sprayed, restrained with painful plastic “zip-cuffs,” and eventually
arrested along with over 100 others. After the arrest, Officer Wood retrieved Faulk’s
bicycle, which another officer had thrown in the street, and placed it in police
custody. Transported to the St. Louis City Justice Center (“CJC”), Faulk was placed
in a cell with approximately fifteen others, then isolated when he tried to interview
his cellmates. He was denied medical attention and detained for thirteen hours, then
released and charged with “failure to disperse.”
Faulk filed this action in February 2018 against the City of St. Louis, six
“supervising” SLMPD officers in their individual capacities, and five “John Doe”
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defendants. A seventh SLMPD officer was added in a Second Amended Complaint
filed in August 2019. The district court ordered the parties to conduct limited
discovery to identify the John Doe defendants. In January 2020, Faulk filed a motion
for leave to file a Fifth Amended Complaint adding nine individual defendants and
removing fictitious John Doe defendants. Faulk explained, “Defendants, through a
[Rule] (30)(b)(6) designee, were able to use video clips and photo stills prepared by
Plaintiff to identify the arrest team who seized Mr. Faulk, and other officers in close
proximity to Mr. Faulk.” The district court granted the motion. On January 30, Faulk
filed a 62-page Fifth Amended Complaint (“FAC”) containing 332 numbered
paragraphs. The FAC identifies six of the new defendants as “Doe Police Officers”
who arrested Faulk. It alleges that new defendants Tom Long and James Wood were
SLMPD officers “working during the events of September 17, 2017,” and that new
defendant Lawrence O’Toole was SLMPD Acting Commissioner who “is vicariously
liable for the acts and omissions of the Defendant Officers and Sergeants.” Faulk
attached to the FAC six exhibits totaling over 700 pages, including the transcript of
the October 2018 preliminary injunction hearing and a sworn declaration from
Ahmad v. St. Louis, excerpts from which were repeatedly cited in the FAC.
The FAC asserted twelve federal and state claims. Three § 1983 federal claims
are at issue in this interlocutory appeal. Count I alleges all defendants violated
Faulk’s First Amendment rights by “interfering with his ability to gather information
and cover a matter of public interest as a member of the media,” and by “isolating him
from other arrestees and refusing to allow him back into the cell with other arrestees
unless he forfeited his pen and paper.” Count II alleges the individual defendants
violated the Fourth Amendment by unreasonably seizing Faulk during the kettling
event and by arresting him without arguable probable cause. Count V alleges all
defendants conspired “to undertake a course of conduct that violated Mr. Faulk’s civil
rights.” (Wood is not a named defendant in Counts III and IV, which allege Fourth
Amendment excessive force claims against eight individual defendants, or in
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municipal liability Count VI. The pending state law claims in Counts VII-XII are
against all defendants but are not at issue on appeal.)
In denying Wood’s motion to dismiss, and defendants’ motion for judgment on
the pleadings on Count V, the district court concluded the FAC is well pled, qualified
immunity is not warranted at the motion to dismiss stage, and the intracorporate
conspiracy doctrine provides no basis to grant qualified immunity on Count V. Wood
appeals the denial of qualified immunity on Counts I, II, and V. All defendants
appeal the court’s refusal to grant judgment on the pleadings on Count V based on the
intracorporate conspiracy doctrine.
II. Counts I and II
Qualified immunity ensures that government officials performing discretionary
functions “are shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity protects an official “unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quotation omitted). We have discretion to decide which
requirement “to tackle first.” Id. As “an immunity from suit rather than a mere
defense to liability . . . [qualified immunity] is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell, 472 U.S. at 526 (emphasis in original). Thus, “a
district court’s order rejecting qualified immunity at the motion-to-dismiss stage of
a proceeding is a final decision within the meaning of § 1291.” Ashcroft v. Iqbal, 556
U.S. 662, 672 (2009) (quotations omitted).
We review the denial of a motion to dismiss on qualified immunity grounds de
novo, viewing the FAC in light most favorable to Faulk and accepting all factual
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allegations as true. See Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018). The
FAC “must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotations omitted). Ruling on
a motion to dismiss is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at 679. “Liability for
damages for a federal constitutional tort is personal, so each defendant’s conduct
must be independently assessed.” Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir.
2006); see Roberts v. City of Omaha, 723 F.3d 966, 974-75 (8th Cir. 2013).
Counts I and II incorporate by reference all factual allegations in the preceding
paragraphs 8 to 206 of the FAC. Only two of those paragraphs name Wood:
26. Officer James Wood was employed as a police officer with
the SLMPD. Officer Wood was working during the events of
September 17, 2017 and took possession of Plaintiff Faulk’s bicycle. He
is sued in his individual capacity. Officer Wood knew or should have
known that there was no legal justification to seize Plaintiff Faulk’s
property, and retained and failed to return Mr. Faulk’s bicycle.
172. While Mr. Faulk was laying prostrate on the ground, an
SLMPD officer picked up Mr. Faulk’s bicycle from the sidewalk and
threw it into the street. Officer James Wood seized the bicycle and
placed it in police custody.
In response to Wood’s motion contending that the FAC contains no facts
showing his personal involvement in the alleged First and Fourth Amendment
violations, Faulk pointed to allegations that “(1) Wood was part of the team
effectuating the kettle and mass arrest that restricted Plaintiff’s right to observe and
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report on police behavior,2 and (2) Wood assisted the team effectuating the mass
arrest by collecting evidence” (presumably referring to Faulk’s bicycle).
The district court declined to dismiss Counts I and II against Wood “at this
time.” Instead, the Court said it will permit Plaintiff to engage in discovery on his
claims, and Wood “remains free to renew his arguments on summary judgment.” Six
weeks later, citing controlling Eighth Circuit precedent, Judge Perry ruled in another
§ 1983 damage action arising out of the mass arrest kettling incident that claims
against several hundred defendants against whom no specific allegations were made
must be dismissed:
[T]he only facts plaintiffs have alleged in this case about each individual
is that each defendant was employed by the SLMPD ‘during the events
of September 17, 2017.’ Defendants cannot be held liable merely
because they were employed by the SLMPD on the night some members
of that department may have violated plaintiffs’ rights -- liability under
§ 1983 requires proof of a causal link between each defendant and the
specific wrongs that defendant committed. . . . Absent specific and
plausible allegations, plaintiffs’ claims are merely legal conclusions
couched as factual allegations.
Street v. O’Toole, No. 4:19 CV 2590, 2021 WL 677909, at *4 (E.D. Mo. Feb. 22,
2021) (emphasis in original).3 Subsequent interlocutory rulings in three related
damage actions have agreed with Judge Perry’s ruling. See Thomas v. City of St.
Louis, No. 4:18-CV-01566, 2021 WL 4622502, at *5-6 (E.D. Mo. Oct. 7, 2021);
2
The allegation that Wood and 8 other defendants “agreed to participate in the
illegal kettling plan” is contained in paragraph 255 of the FAC, part of the Count V
conspiracy allegations.
3
Defendants appealed other aspects of Judge Perry’s decision. The appeal,
Street v. Leyshock, No. 21-1524, was argued on January 12, 2022, and is awaiting
decision. This part of Judge Perry’s decision is not at issue on appeal.
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Robertson v. City of St. Louis, No. 4:18-CV-01570, 2021 WL 4459728, at *4-5 (E.D.
Mo. Sep. 29, 2021); Ziegler v. City of St. Louis, No. 4:18-CV-01577, 2021 WL
4459747, at *5-6 (E.D. Mo. Sep. 29, 2021). We agree with these decisions.
Here, the only FAC allegations relating to Officer Wood’s involvement are that
he was working on September 17 and took custody of Faulk’s bicycle that was lying
in the street at the time of Faulk’s arrest. These allegations do not establish a causal
link between Wood and the specific wrongs defendants allegedly committed. Count
I alleges that defendants violated Faulk’s First Amendment rights by “interfering with
his ability to gather information and cover a matter of public interest as a member of
the media.” There is no allegation Wood was involved in that or had any interaction
with Faulk at all. Count I also alleges defendants violated Faulk’s First Amendment
rights by “isolating him from other arrestees and refusing to allow him back into the
cell with other arrestees unless he forfeited his pen and paper.” The FAC does not
allege that Officer Wood was even present at the CJC when Faulk’s First Amendment
rights were allegedly violated during his detention.
Count II alleges the individual defendants violated the Fourth Amendment by
unreasonably seizing Faulk during the kettling event and by arresting him without
arguable probable cause. The FAC does not allege that Wood was one of the named
arrest team defendants. It includes no fact allegations supporting an inference that
Wood intended to or did participate in the kettling. Without factual enhancement, the
naked allegations that Wood “agreed” to participate in illegal kettling and unlawful
arrests are “merely legal conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). Mere presence at the scene -- being an officer “in close proximity to Mr.
Faulk” -- is not enough to defeat a claim of qualified immunity. See White v.
Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017).
While the allegation that Wood took possession of Faulk’s bicycle is slightly
more than simply alleging he was working that night, the bicycle incident is not
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mentioned in Counts I and II, and the FAC does not assert a § 1983 property claim.
Moreover, an officer who was “simply working” in the vicinity that night might take
custody of a bicycle lying in harm’s way to protect a citizen’s property. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not shown -- that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (cleaned up).
Faulk argues the district court properly denied Wood’s motion to dismiss,
permitting Faulk to pursue discovery and Wood to renew his arguments at the
summary judgment stage. There are two serious flaws in this analysis. First, it is
contrary to controlling Supreme Court precedent. In Twombly, a complex antitrust
conspiracy case, the Court squarely rejected this contention, adopting a more rigorous
plausibility pleading standard: “It is no answer to say that a claim just shy of a
plausible entitlement to relief can, if groundless, be weeded out early in the discovery
process through ‘careful case management’ . . . given the common lament that the
success of judicial supervision in checking discovery abuse has been on the modest
side.” 550 U.S. at 559. In Iqbal, the Court was emphatic in applying this rule in
§ 1983 qualified immunity cases:
Our rejection of the careful-case-management approach is especially
important in suits where Government-official defendants are entitled to
assert the defense of qualified immunity. The basic thrust of the
qualified-immunity doctrine is to free officials from the concerns of
litigation . . . If a Government official is to devote time to his or her
duties . . . it is counterproductive to require the substantial diversion that
is attendant to participating in litigation.
556 U.S. at 685.
Second, applying this principle is particularly appropriate in this case. At the
district court’s direction, Faulk was permitted to engage in extensive discovery to
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replace John Doe Defendants with named defendants who participated in the alleged
First and Fourth Amendment violations. As a result, Faulk added new defendants
identified as members of the “arrest team” and specific allegations of the roles played
by many of the initial defendants. But as to Wood, all Faulk could factually allege
in 332 paragraphs was that he was working on September 17 and took custody of
Faulk’s bicycle. Requiring Wood to devote time to multi-party discovery in which
Faulk fishes for something more to tie him to the “kettle plan” is precisely what Iqbal
precludes.
After substantial discovery and access to evidentiary proceedings in Ahmad,
Faulk’s lengthy FAC lacks a factual basis to infer that Officer Wood was personally
involved in the constitutional violations alleged in Counts I and II. Accordingly, we
reverse the district court’s denial of Officer Wood’s motion to dismiss these claims.4
III. Count V
In Count V, Faulk alleges that all defendants “conspired together and with
others, and reached a mutual understanding to undertake a course of conduct that
violated Mr. Faulk’s civil rights.” More specifically, Count V alleges:
4
Therefore, we do not consider Officer Wood’s alternative qualified immunity
arguments, including whether officer participation in kettling is an unlawful Fourth
Amendment seizure; if so, whether it would violate “clearly established” rights for
purposes of qualified immunity; and whether the officers warrant qualified immunity
because they had arguable probable cause to arrest Faulk and the others as part of a
group violating the law. See, e.g., Baude v. City of St. Louis, 476 F. Supp. 3d 900(E.D. Mo. 2020), aff’d sub nom. Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022);
Burbridge v. City of St. Louis, 430 F. Supp. 3d 595, 610-11 (E.D. Mo. 2019), aff’d,
2 F.4th 774 (8th Cir. 2021); Bernini v. City of St. Paul, 665 F.3d 997, 1004 (8th Cir.),
cert. denied, 568 U.S. 978 (2012).
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-- The City was a member of the conspiracy because its officials “were
involved in the planning, monitoring and/or execution of this event.”
-- Four supervisory SLMPD officers “conspired to design and implement
the illegal kettling plan.”
-- Two other supervisory officers “joined the conspiracy when they
directed officers under their control and supervision to execute the illegal
kettling plan.”
-- Nine SLMPD officers including Wood “joined the conspiracy when
they agreed to participate in the illegal kettling plan.”
In the motions to dismiss, Wood argued the FAC failed to plausibly allege his
participation in the alleged conspiracy; all defendants argued Count V is barred by
the intracorporate conspiracy doctrine.
A. Officer Wood. Officer Wood argues the district court erred in denying him
qualified immunity because the FAC does not plausibly plead that he was involved
in constitutional misconduct. “To prove a 42 U.S.C. § 1983 conspiracy claim, a
plaintiff must show: (1) that the defendant conspired with others to deprive him of
constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an
overt act in furtherance of the conspiracy; and (3) that the overt act injured the
plaintiff.” White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008).
As we have explained, the FAC does not contain specific and plausible
allegations linking Wood to the overt acts that Count V alleges defendants committed
against Faulk -- unlawful kettling and unlawful seizure, arrest without probable cause,
use of excessive force, and detention for thirteen hours. What Count V adds are
allegations that Wood “agreed to participate” in violations of his civil rights and
“shared the conspiratorial objectives” to punish Faulk and other victims of the illegal
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kettling plan “because Defendants believed the group to be protesting police
brutality.”
We conclude these allegations do not state a plausible claim of civil conspiracy
against Officer Wood. “Without some further factual enhancement [a naked assertion
of conspiracy] stops short of the line between possibility and plausibility of
‘entitement to relief.’” Twombly, 550 U.S. at 557 (cleaned up); see DM Research,
Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999). Nor does the
FAC “contain any factual allegation sufficient to plausibly suggest [Wood’s]
discriminatory state of mind.” Iqbal 556 U.S. at 683. Without factual enhancement,
these naked allegations are “merely legal conclusions.” Twombly, 550 U.S. at 564.
A conspiracy claim “requires a complaint with enough factual matter (taken as true)
to suggest that an agreement was made.” Id. at 556. Wood is entitled to qualified
immunity on this claim. See Boxill v. O’Grady, 935 F.3d 510, 519 (6th Cir. 2019);
Redd v. Nolan, 663 F.3d 287, 292 (7th Cir. 2011).
B. The Other Defendants. On appeal, the other individual defendants argue
they are entitled to qualified immunity from Count V because the applicability of the
intracorporate conspiracy doctrine was not clearly established. This is a much harder
question. We begin with a review of the doctrine’s relevant history.
The doctrine originated in antitrust cases interpreting Section 1 of the Sherman
Act, 15 U.S.C. § 1, a statute which prohibits “every contract, combination . . . or
conspiracy, in restraint of trade.” In Copperweld Corp. v. Independence Tube Corp.,
the Supreme Court held that, because Section 1 “does not reach conduct that is wholly
unilateral,” the statute does not apply to alleged concerted action by “officers or
employees of the same firm,” or to “operations of a corporate enterprise organized
into divisions,” or to the “coordinated activity of a parent and its wholly owned
subsidiary.” 467 U.S. 752, 768-71 (1984) (cleaned up).
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When defendants in later cases argued the doctrine should be applied to
unlawful conspiracy claims in civil rights actions under 42 U.S.C. §§ 1983 and 1985,
various lower federal courts reacted quite differently. See Bowie v. Maddox, 642
F.3d 1122, 1130-31 (D.C. Cir. 2011) (citing cases), cert. denied, 565 U.S. 1235(2012). The Supreme Court initially declined to resolve this conflict in the circuits.
See Hull v. Shuck. 501 U.S. 1261 (1991) (White, J., dissenting from the denial of
certiorari). But in Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017), the Court
addressed the question whether the doctrine applies to claims under § 1985(3), a
statute which, like Section 1 of the Sherman Act, forbids certain conspiracies.
The Court’s response to the question in Ziglar decided that case but did not
resolve broader issues. The Court first observed that the doctrine
is derived from the nature of the conspiracy prohibition. Conspiracy
requires an agreement -- and in particular an agreement to do an
unlawful act -- between or among two or more separate persons. When
two agents of the same legal entity make an agreement in the course of
their official duties, however, as a practical and legal matter their acts
are attributed to their principal. And it then follows that there has not
been an agreement between two or more separate people.
Id. at 1867. Then, after noting “a longstanding split about whether the intracorporate-
conspiracy doctrine applies to civil rights conspiracies,” the Court declined to answer
the question definitively:
Nothing in this opinion should be interpreted as either approving or
disapproving the intracorporate-conspiracy doctrine’s application in the
context of an alleged § 1985(3) violation. The Court might determine,
in some later case, that different considerations apply to a conspiracy
respecting equal protection guarantees, as distinct from a conspiracy in
the antitrust context.
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Id. at 1868. The Court noted that the alleged conspiracy in Ziglar involved
discussions among officers in the same branch of government that “were the preface
to, and the outline of, a general and far-reaching policy.” Id. at 1867. It explained
that these governmental considerations
suggest that officials employed by the same governmental department
do not conspire when they speak to one another and work together in
their official capacities. Whether that contention should prevail need
not be decided here. It suffices to say that the question is sufficiently
open so that the officials in this suit could not be certain that § 1985(3)
was applicable to their discussion and actions.
Id. at 1868-69 (emphasis added). The Court held that “Petitioners are entitled to
qualified immunity with respect to the claims under 42 U.S.C. § 1985(3).” Id. at
1869.
Prior to Ziglar, we applied the intracorporate conspiracy doctrine in affirming
the dismissal of § 1985(2) conspiracy claims against County employees acting within
the scope of their employment. L.L. Nelson Enters., Inc. v. Cty. of St. Louis, Mo.,
673 F.3d 799, 812-13 (8th Cir. 2012); Meyers v. Starke, 420 F.3d 738, 742 (8th Cir.
2005).5 Following Ziglar, we held that the doctrine precluded § 1985(2) and (3)
conspiracy claims because “a local government entity cannot conspire with itself
through its agents acting within the scope of their employment,” even if the plaintiff
“alleges improprieties in the execution of these duties.” Kelly v. City of Omaha, 813
F.3d 1070, 1078-79 (8th Cir. 2016) (cleaned up). Defendants argue that Count V fails
to allege an actionable § 1983 conspiracy as a matter of law because the alleged
5
In an earlier case, we affirmed the dismissal of § 1985(3) claims that tribal
council members conspired to enact invalid tribal resolutions because “[t]he Tribal
Council as an entity or governmental body cannot conspire with itself.” Runs After
v. United States, 766 F.2d 347, 354 (8th Cir. 1985).
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conspirators are the City of St. Louis and its employees who are entitled to qualified
immunity under this doctrine, like the defendants in Ziglar.
As Faulk notes, we have never definitively addressed the issue whether the
doctrine applies to § 1983 conspiracy claims. See Burbridge, 2 F.4th at 782-83
(declining to address the question because it was first raised on appeal). Other
circuits have addressed the issue. Two have expressly held that the doctrine applies
to § 1983 conspiracy claims, but its application in a particular case is subject to
recognized exceptions. See Jackson v. City of Cleveland, 925 F.3d 793, 817-20 (6th
Cir. 2019), cert. denied, 140 S. Ct. 855 (2020); Grider v. City of Auburn, 618 F.3d
1240, 1261-63 (11th Cir. 2010). Others have questioned whether the doctrine should
apply, at least “[w]here ‘equal protection’ is at issue.” Stathos v. Bowden, 728 F.2d
15, 20-21 (1st Cir. 1984); see Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126-27
(10th Cir. 1994).6
In surveying the decisions from other circuits, what stands out is the fact-
intensive nature of their inquiries. None holds the intracorporate conspiracy doctrine
6
In other kettling incident damage actions, Judge Sippel granted qualified
immunity on the § 1983 conspiracy claim, concluding “[i]n light of this landscape,
it cannot be said that the law regarding the application of the intracorporate
conspiracy doctrine in § 1983 cases is clearly established.” Baude v. City of St.
Louis, 476 F. Supp. 3d at 916. We affirmed but this part of his decision was not
before the court. Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022). Judge Perry
denied qualified immunity because we have “consistently recognized § 1983
conspiracy claims against police officers from the same police department if those
police officers conspired to violate clearly established rights.” Street, 2021 WL
677909, at *8, citing Small v. McCrystal, 708 F.3d 997, 1010 (8th Cir. 2013) (§ 1983
claim that police deputies conspired to fabricate reports), and S.L. ex rel. Lenderman
v. St. Louis Metro. Police Dep’t Bd. of Police Comm’rs, 725 F.3d 843, 850-54 (8th
Cir. 2013) (§ 1983 claim that SLMPD officers conspired to cover up a false arrest).
This ruling is pending on appeal, No. 21-1524.
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always applies, or never applies. Some hold it generally applies but is subject to
exceptions. Others hold it does not apply in certain circumstances. This array is
consistent with the doctrine’s history we have briefly summarized. On one side of the
current ledger as defined by Faulk is Justice Breyer’s opinion as a circuit judge in
Stathos, a decision cited in Justice White’s dissent to illustrate the circuit conflict
later addressed in Ziglar. Hull, 501 U.S. 1261. It is reasonable to assume that the
Court’s statement in Ziglar that “different considerations [might] apply to a
conspiracy respecting equal protection guarantees,” 137 S. Ct. at 1868, reflected
consideration of the Stathos opinion. Justice Breyer, the author of Stathos, dissented
in Ziglar but only addressed the main issue in that case -- whether to extend Bivens
to the various claims at issue. Logically, this silence suggests at least tacit agreement
with the majority that issues regarding whether and how to apply the doctrine to civil
rights cases defy categorical pronouncements.
Approaching the issue from this perspective, it is significant that the FAC’s
conspiracy allegations are entirely focused on “the illegal kettling plan.” If the plan
itself was an unconstitutional municipal policy, then the City and all defendants
“personally involved in that unconstitutional policy-making” are subject to § 1983
liability; Count V adds nothing to Faulk’s § 1983 claims against those defendants.
See A.H. v. St. Louis Cty., Mo., 891 F.3d 721, 728 (8th Cir. 2018). Likewise, Faulk
does not need Count V to hold liable under § 1983 SLMPD officers who, while
executing the kettling plan, participated in the constitutional violations Faulk alleges,
even if the plan itself was not an unconstitutional policy. Under these particular
circumstances, all that Count V adds is the risk of liability for an officer whose only
role in the illegal kettling plan was to follow his employer’s orders to block egress.
This claim is inconsistent with well-established § 1983 principles of individual
liability. “Where a court fails to adhere to rigorous requirements of culpability and
causation, municipal liability collapses into respondeat superior liability.” Board of
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Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 415 (1997); see generally
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
In these circumstances, we conclude that the issue on appeal regarding Count
V is analogous to Ziglar, where the Court granted qualified immunity because the
uncertain applicability of the intracorporate conspiracy doctrine meant that § 1985(3)
liability was not clearly established. See Dillard v. O’Kelley, 961 F.3d 1048, 1055
(8th Cir. 2020) (en banc) (“If a right does not clearly exist, it cannot be clearly
established”). Our opinions in Small and Lendermen did not address this issue and
have not been endorsed by the Supreme Court. Therefore, they do not clearly
establish that reasonable officers “would . . . have known with any certainty” that
planning, designing, monitoring, or executing “the illegal kettling plan” would
expose them to damage liability for a § 1983 conspiracy claim. Ziglar, 137 S. Ct. at
1869; cf. Stanton v. Sims, 134 S. Ct. 3, 7 (2013).7
IV. Conclusion
The Orders of the district court dated January 5 and January 8, 2021, are
reversed in part and the case is remanded with directions to dismiss Officer Wood
from Counts I and II and to dismiss Count V of Faulk’s FAC.
APPENDIX A
• Green v. City of St. Louis, No. 4:18-CV-1629 JCH, 2022 WL 278746 (E.D.
Mo. Jan. 31, 2022)
7
On appeal, Faulk argues in the alternative that, if the intracorporate conspiracy
doctrine applies, his allegations “fall within the recognized exceptions to the
doctrine.” But that theory was not plausibly pleaded.
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• Jones v. City of St. Louis, No. 4:19-CV-02583 AGF, 2021 WL 4947945 (E.D.
Mo. Oct. 25, 2021)
• Thomas v. City of St. Louis, No. 4:18-CV-01566 JAR, 2021 WL 4622502(E.D. Mo. Oct. 7, 2021)
• Gullet v. City of St. Louis, No. 4:18-CV-1571 JCH, 2021 WL 4459697 (E.D.
Mo. Sept. 29, 2021)
• Robertson v. City of St. Louis, No. 4:18-CV-01570 JAR, 2021 WL 4459728(E.D. Mo. Sept. 29, 2021)
• Ziegler v. City of St. Louis, No. 4:18-CV-01577 JAR, 2021 WL 4459747 (E.D.
Mo. Sept. 29, 2021)
• Laney v. City of St. Louis, No. 4:18-CV-1575 CDP, 2021 WL 4439252 (E.D.
Mo. Sept. 28, 2021)
• Nelson v. City of St. Louis, No. 4:18-CV-1561 JCH, 2021 WL 4399481 (E.D.
Mo. Sept. 27, 2021)
• Davis v. City of St. Louis, No. 4:18-CV-1574 HEA, 2021 WL 4148331 (E.D.
Mo. Sept. 13, 2021)
• Dreith v. City of St. Louis, No. 4:18-CV-1565 JCH, 2021 WL 4148324 (E.D.
Mo. Sept. 13, 2021)
• Newbold v. City of Saint Louis, No. 4:18-CV-1572 HEA, 2021 WL 4061066(E.D. Mo. Sept. 7, 2021), appeal dismissed, No. 21-3108, 2022 WL 839401(8th Cir. Mar. 4, 2022)
• Ortega v. City of St. Louis, No. 4:18-CV-1576 DDN, 2021 WL 3286703 (E.D.
Mo. Aug. 2, 2021)
• Street v. O’Toole, No. 4:19-CV-2590 CDP, 2021 WL 677909 (E.D. Mo. Feb.
22, 2021)
• Baude v. City of St. Louis, 476 F. Supp. 3d 900 (E.D. Mo. 2020), aff’d sub
nom. Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022)
• Burbridge v. City of St. Louis, 430 F.Supp.3d 595 (E.D. Mo. 2019), aff’d, 2
F.4th 774 (8th Cir. 2021)
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• Rose v. City of St. Louis, No. 4:18-CV-1568 RLW, 2019 WL 4602829 (E.D.
Mo. Sept. 23, 2019)
• Alston v. City of Saint Louis, No. 4:18-CV-01569-AGF, 2019 WL 2869896(E.D. Mo. July 3, 2019)
• Laird v. City of Saint Louis, No. 4:18-CV-01567-AGF, 2019 WL 2647273(E.D. Mo. June 27, 2019)
• Aldridge v. City of St. Louis, No. 4:18-CV-1677 CAS, 2019 WL 1695982(E.D. Mo. Apr. 17, 2019)
• Ahmad v. City of St. Louis, No. 4:17-CV-2455 CDP, 2017 WL 5478410 (E.D.
Mo. Nov. 15, 2017), modified and remanded, 995 F.3d 635 (8th Cir. 2021)
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