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.,
Plaintiffs,
vs.
CITY OF ST. LOUIS, MISSOURI,
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.

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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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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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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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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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