Molina v. City of St. Louis

• Decision Date: 02 February 2023
• Docket Number: 21-1830
• Parties: Sarah K. Molina; Christina Vogel; Peter Groce Plaintiffs - Appellees v. City of St. Louis, Missouri; County of St. Clair, Illinois; John Doe, I-VI Defendants Daniel Book, in his individual capacity; Joseph Busso, in his individual capacity Defendants - Appellants Jason C. Chambers Defendant Lance Coats, in his individual capacity; Stephen Dodge, in his individual capacity; Joseph Mader, in his individual capacity; Michael D. Mayo, in his individual capacity; Mark S. Seper, in his individual capacity; William Wethington, in his individual capacity Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

Sarah K. Molina; Christina Vogel; Peter Groce Plaintiffs - Appellees v. City of St. Louis, Missouri; County of St. Clair, Illinois; John Doe, I-VI Defendants

Daniel Book, in his individual capacity; Joseph Busso, in his individual capacity Defendants - Appellants Jason C. Chambers Defendant Lance Coats, in his individual capacity; Stephen Dodge, in his individual capacity; Joseph Mader, in his individual capacity; Michael D. Mayo, in his individual capacity; Mark S. Seper, in his individual capacity; William Wethington, in his individual capacity Defendants - Appellants

No. 21-1830

United States Court of Appeals, Eighth Circuit

February 2, 2023

Submitted: January 12. 2022

Appeal from United States District Court for the Eastern District of Missouri - St. Louis Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

STRAS Circuit Judge

Officers in an armored police vehicle shot tear gas at three people near the scene of a protest in downtown St. Louis. The district court concluded that all three had a First Amendment retaliation claim. We agree that one of them does, but qualified immunity shields the officers from the claims brought by the others. We affirm in part, reverse in part and remand.

I.

A large protest broke out in St. Louis in 2015. In the crowd were Sarah Molina and Christina Vogel, both members of the National Lawyers Guild. In Molina's words, their goal was to "protect[] the right to protest," not to participate in one. To make their self-appointed role known, they wore bright green hats emblazoned with the words "National Lawyers Guild Legal Observer."

During the protest, St. Louis police officers formed a line and repeatedly ordered the crowd to disperse. Instead of leaving, the protestors responded by throwing rocks and bottles. The officers warned protestors about the possible use of chemical agents, and when they refused to go, shot inert smoke canisters into the crowd.

Vogel recorded these events as Molina stood nearby and watched. Once officers switched to tear gas, the two women left. A few minutes later, they reassembled with five to ten others on Molina's property, located about 550 feet away.

Minutes later, an armored vehicle known as the BEAR barreled down the street toward them. As it drove past, tear-gas canisters landed near Molina and Vogel. Although the officers would later deny shooting chemicals from the BEAR, an after-action report revealed otherwise.

As the BEAR continued down the street, Peter Groce followed on a bicycle. Once it stopped, he approached and shouted, "[g]et the fuck out of my park." The officers responded by launching a tear-gas canister that allegedly hit him in the hip.

Molina, Vogel, and Groce sued the officers and their supervisor, Lieutenant Stephen Dodge, under 42 U.S.C. § 1983 for, among other claims, First Amendment retaliation. In the face of a summary-judgment motion seeking qualified immunity, the district court ruled that the claims could proceed to a jury. The officers ask us to determine whether the case should have ended there.

II.

In deciding whether the district court should have granted summary judgment, we must answer two questions. First, did the officers violate a constitutional right? Second, was the right clearly established? See Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc) (explaining that we may answer them in either order). In answering these questions, "we [must] accept as true the facts that the district court found were adequately supported, as well as the facts the district court likely assumed." Burbridge v. City of St. Louis, 2 F.4th 774, 779-80 (8th Cir. 2021) (bracket and quotation marks omitted) (reviewing the summary-judgment determination de novo); see Berry v. Doss, 900 F.3d 1017, 1021 (8th Cir. 2018) (explaining that, in an appeal from a denial of qualified immunity, we review "purely legal issue[s]" based on "the district court's factual presumptions" (quotation marks omitted)).

A.

To prevail on their retaliation claim, the plaintiffs must show that "they engaged in protected [First Amendment] activity." Quraishi v. St. Charles County., 986 F.3d 831, 837 (8th Cir. 2021); see Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017), abrogated on other grounds by Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019), as recognized in Laney v. City of St. Louis, 56 F.4th 1153, 1157 n.2 (8 th Cir. 2023). If they can make that showing, then the focus shifts to whether the officers "took [an] adverse action . . . that would chill a person of ordinary firmness from continuing in the [protected] activity." Hoyland, 869 F.3d at 655 (citation omitted); see Eggenberger v. West Albany Township, 820 F.3d 938, 943 (8th Cir. 2016). If they did, then the next hurdle is causation: was the First Amendment activity a "but-for cause" of the injury? Nieves, 139 S.Ct. at 1722 (quotation marks omitted).

Establishing the violation itself, however, is only half the battle. Getting past qualified immunity requires the plaintiffs to show that it would have been "sufficiently clear [to] every reasonable official . . . that what [they were] doing violate[d]" the First Amendment. Reichle v. Howards, 566 U.S. 658, 664 (2012) (quotation marks omitted); Wilson v. Lamp, 901 F.3d 981, 986 (8th Cir. 2018) (explaining that the burden remains with the plaintiffs, even at this step). "Existing precedent," in other words, must have put the issue "beyond debate." Reichle, 566 U.S. at 664 (quoting al-Kidd, 563 U.S. at 741). Although Groce gets over each of these hurdles, Molina and Vogel do not.

B.

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. It protects "symbolic or expressive conduct as well as . . . actual speech." Virginia v. Black, 538 U.S. 343, 358 (2003). Molina and Vogel claim that the First Amendment covers what they did, which was observe and record police conduct during the St. Louis protest. Even if we were to assume they are correct, observing and recording police-citizen interactions was not a clearly established First Amendment right in 2015.

Start with the Supreme Court's 50-year-old decision in Colten v. Kentucky, 407 U.S. 104 (1972). After a group of college students left a political demonstration in a "procession of [6] to 10" cars, a police officer pulled one of them over for an expired license plate. Id. at 106. A student from another car then went over to observe the traffic stop and ask questions. Eventually, other students joined him, which prompted another trooper to repeatedly ask the group to "disperse." Id. When those efforts failed, the officer arrested one of the students for disorderly conduct. Id. at 107.

Throughout trial and on appeal, the student claimed that Kentucky's disorderly-conduct statute was unconstitutionally overbroad. In concluding it was not, the Supreme Court announced that individuals "[have] no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation." Id. at 109. As for the student's refusal to "move on," it too was unprotected, at least "without more." Id. Colten suggests that observing police conduct is not expressive.^[1] None of the plaintiffs' cases clearly establish otherwise. Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005), is an ordinary Fourth Amendment case. When two police officers approached someone who had watched them conduct a traffic stop, the bystander said he had been watching "Pine Bluff's finest in action." Id. at 992. The officers arrested the bystander for "obstructing government operations." Id. at 993. Qualified immunity was unavailable, we concluded, because the officers lacked "arguable probable cause to arrest . . . [him] in this situation." Id. (emphasis added). The opinion never mentions, much less discusses, the First Amendment.

The same goes for the second case, Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020). Like Walker, Chestnut involved a bystander who watched as a police officer "perform[ed] traffic stops." Id. at 1087. The officer eventually called for backup because of the "suspicious person . . . following her to her car stops." Id. The arriving officer placed the bystander in handcuffs and detained him for about 20 minutes. See id. at 1087-88. We concluded there was no reasonable suspicion to conduct an investigatory stop because the bystander was not doing anything illegal. Id. at 1090 (stating that "no reasonable officer could conclude that a citizen's passive observation of a police-citizen interaction from a distance was criminal").

It is true, as the plaintiffs note, that some of the language in Chestnut was broad. Relying on a few out-of-circuit cases invoking the First Amendment, for example, we stated that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering." Id. at 1090. But we did so based only on "the facts that existed when [the bystander] was seized"-a clear reference to the Fourth Amendment issue we were deciding. Id. (emphasis added). And the First Amendment cases only bolstered our (narrow) Fourth Amendment holding: "[w]e merely hold that it was clearly established that [a police officer] could not detain [the bystander] without more indication of wrongdoing." Id. at 1091 (emphasis added).

The point is that neither of these Fourth Amendment cases can clearly establish a First Amendment right to observe police officers.^[2] See Colten, 407 U.S. at 109. Nor did a clearly established First Amendment right to record them exist in 2015. See Frasier v. Evans, 992 F.3d 1003, 1019-20 (10th Cir. 2021) (holding that a "purported First Amendment right to record [police officers] was not clearly established in August 2014"); Fields v. City of...