55 F.4th 1145
8th Cir.2022Background
- On Sept. 15, 2017, protests followed the acquittal of former officer Jason Stockley in St. Louis; police Bicycle Response Team (BRT) attempted to clear a lane for buses retrieving Civil Disobedience Team officers.
- Alison Dreith was walking toward the protest and, according to her, was peaceful and within a couple feet of officers when Lieutenant Scott Boyher sprayed pepper spray into her face without warning.
- Officers contend the scene was violent, that protestors grabbed officers’ bicycles, and that Boyher sprayed Dreith after she grabbed an officer’s bike or refused commands; Dreith disputes those facts.
- Dreith sued under 42 U.S.C. § 1983 for retaliatory use of force (First Amendment) and excessive force (Fourth Amendment), alleged Monell failure-to-train/supervise against the City, and asserted state torts (battery and negligent infliction of emotional distress).
- The district court granted summary judgment to defendants on the Fourth Amendment claims but denied Boyher qualified immunity on the First Amendment retaliatory-force claim and denied Boyher official immunity on state torts; it reserved ruling on the City’s sovereign immunity for the state tort claims.
- The Eighth Circuit: affirmed denial of Boyher’s qualified immunity on the First Amendment claim and affirmed denial of official immunity on state tort claims; vacated in part the denial as to the City and remanded so the district court must decide sovereign immunity for the state claims.
Issues
| Issue | Plaintiff's Argument (Dreith) | Defendant's Argument (Boyher/City) | Held |
|---|---|---|---|
| Qualified immunity for retaliatory use of force (First Amendment) | Dreith says she was peacefully rejoining protestors and was sprayed in retaliation for protected activity | Boyher says he had arguable probable cause to use force because she grabbed a bicycle or failed to obey orders | Denied as to Boyher; appellate court affirms denial of qualified immunity (First Amendment right clearly established) |
| Official immunity on state torts (battery, NIED) | Dreith says spraying without warning while she was not engaged in unlawful acts shows malice/bad faith | Boyher says actions were discretionary and taken during a dangerous, chaotic situation (no malice) | Denied as to Boyher; appellate court affirms district court’s refusal to grant official immunity on disputed facts |
| City sovereign immunity for state tort claims | Dreith alleges municipal training/supervision caused constitutional violation (Monell) and sues City on state torts | City contends sovereign immunity bars state tort suits; district court reserved ruling | Vacated in part; remanded with instruction that district court must decide City’s sovereign immunity for the state tort claims |
Key Cases Cited
- Johnson v. Jones, 515 U.S. 304 (1995) (limits interlocutory appellate review of factual-sufficiency determinations)
- Scott v. Harris, 550 U.S. 372 (2007) (summary-judgment facts that are "blatantly contradicted by the record" may be disregarded)
- Welch v. Dempsey, 51 F.4th 809 (8th Cir. 2022) (elements for retaliatory use-of-force First Amendment claim)
- Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014) (retaliation standard under the First Amendment)
- Quraishi v. St. Charles Cnty., 986 F.3d 831 (8th Cir. 2021) (qualified-immunity review at summary judgment)
- Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (clearly established law on retaliatory force)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability for constitutional violations from policy or lack of training)
- Payne v. Britten, 749 F.3d 697 (8th Cir. 2014) (refusal to rule on immunity is effectively unreviewable and appealable)
- Torres v. City of St. Louis, 39 F.4th 494 (8th Cir. 2022) (official immunity and interlocutory review)