No. 20-2864 ___________________________

Brian Baude

Plaintiff - Appellee

v.

Gerald Leyshock, et al.

Defendants - Appellants ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: September 28, 2021 Filed: January 27, 2022 ____________ Before KELLY, ERICKSON, and GRASZ, Circuit Judges. ____________ ERICKSON, Circuit Judge.

This case is one of many arising out of the protests and unrest that occurred after Officer Jason Stockley was acquitted of the murder of Anthony Lamar Smith on September 15, 2017. Following his arrest, Brian Baude sued the City of St. Louis, Missouri, and various police officers of the St. Louis Metropolitan Police Department (“SLMPD”), alleging claims under 42 U.S.C. § 1983 for violations of his First, Fourth, and Fourteenth Amendment rights and conspiracy to violate those rights, and under Missouri state law. Baude alleges that on September 17, 2017, he and others were boxed into an intersection by SLMPD officers, pepper sprayed, arrested, and restrained with zip ties. The officers asserted the defense of qualified immunity on the § 1983 claims. The district court1 denied, in part, the officers’ motion for judgment on the pleadings, and they filed this interlocutory appeal. “An interlocutory order denying a motion to dismiss based on qualified immunity is immediately appealable.” Stanley v. Finnegan, 899 F.3d 623, 625 (8th Cir. 2018). Reviewing the denial of qualified immunity de novo, we affirm. I. BACKGROUND

Our review of the denial of the motion to dismiss based on qualified immunity is limited to the facts alleged in Baude’s lengthy second amended complaint, which we accept as true and view most favorably to Baude. Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). The parties attached voluminous materials to their pleadings, which we may also consider. See Buckley v. Hennepin Cnty., 9 F.4th 757, 760 (8th Cir. 2021) (noting we may rely on materials necessarily embraced by the pleadings).

According to the allegations in the second amended complaint, between 8:00 p.m. and 9:00 p.m., a handful of individuals broke windows and destroyed flowerpots on Olive Street in downtown St. Louis. There is no evidence or allegation that Baude was in any way involved in the destruction of property. At approximately 8:48 p.m. and 8:51 p.m., Sergeant Brian Rossomanno gave two dispersal orders to the small number of protestors present at the time. Baude, however, was not at the location when the alleged dispersal orders were given.

Over the next two-plus hours, SLMPD officers began blocking roads and directing civilians to the intersection of Washington Avenue and Tucker Boulevard,

1 The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri.

-2- which is an area containing condominiums, apartment buildings, and businesses, including restaurants and bars. While many of the individuals present were loitering and milling about the area, a small group of individuals were loudly reminding the officers of their right to assemble. Some sat down on the road, although a vehicle was captured on video driving slowly down the street, unimpeded by the group. Baude, who lived near the intersection, saw reports on social media that protestors had destroyed property in the area, and he decided to go out and investigate. Baude left his home around 9:30 p.m., co