No. 21-3514 ___________________________

Alison Dreith

lllllllllllllllllllllPlaintiff - Appellee

v.

City of St. Louis, Missouri

lllllllllllllllllllllDefendant - Appellant

John Doe, in his or her individual and official capacities

lllllllllllllllllllllDefendant

Lt. Scott Boyher, in his individual capacity

lllllllllllllllllllllDefendant - Appellant ____________

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

Submitted: September 21, 2022 Filed: December 15, 2022 ____________ Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges. ____________ WOLLMAN, Circuit Judge.

Police Lieutenant Scott Boyher deployed pepper spray into Alison Dreith’s face, during a protest in St. Louis, Missouri. Dreith sued Boyher and the City of St. Louis, alleging, as relevant here, federal claims under 42 U.S.C. § 1983 for retaliatory use of force in violation of the First Amendment, as well as tort claims under Missouri law. The district court denied Boyher’s motion for summary judgment based on his defenses of qualified and official immunity and reserved ruling on whether the City is entitled to sovereign immunity on the state tort claims. We affirm the denial of summary judgment as to Boyher, vacate, in part, the denial of summary judgment to the City, and remand the case for further proceedings.

On September 15, 2017, former police officer Jason Stockley was acquitted of charges arising from the death of Anthony Lamar Smith. Protestors gathered in downtown St. Louis after the verdict was announced. Around noon, protestors moved to the intersection of Tucker Boulevard and Clark Avenue.

The St. Louis Police Department had staged its Civil Disobedience Teams (CDT) at the police academy, which is located on Tucker Boulevard, just south of Clark Avenue. Commanding officers decided to remove the CDT officers from the police-academy location and sent buses to retrieve the officers. Protestors surrounded the buses after the officers broke their lines and began embarking. According to Dreith, some protestors threw empty water bottles, which bounced off the buses without causing damage. The defendants maintain that the protestors were violent, threw rocks and bottles at the buses and the officers, and broke at least one bus window.

The Bicycle Response Team (BRT), with Boyher in command, was summoned to help the buses depart. The BRT attempted to strike a wedge formation in its effort to clear a lane for the buses. According to Boyher, protestors had locked arms and

-2- refused to move; some had grabbed officers’ bicycles. Dreith countered that protestors did not grab officers’ bicycles and that the peaceful protest became chaotic only after the BRT arrived.

As Dreith walked from City Hall toward Tucker Boulevard at approximately 1:00 p.m., she observed an officer hitting a woman with his bicycle and saw a protestor being pepper-sprayed. She came within “a couple of feet” of an officer. Immediately thereafter and without warning, Boyher pepper-sprayed Dreith. Boyher testified that Dreith had been fighting with the BRT officers and trying to prevent them from reaching the buses. He claimed that he pepper-sprayed Dreith after seeing her grab and hold onto an officer’s bicycle. Bystanders helped Dreith, guiding her to the sidewalk and washing out her eyes. Dreith was not arrested.

Dreith filed suit in federal district court, claiming that Boyher had violated her Fourth Amendment ri