75 F.4th 908
8th Cir.2023Background
- On Sept. 29, 2017, during protests after the Stockley acquittal, Officer William Olsten deployed pepper spray into a crowd in downtown St. Louis after a close, heated exchange with protestor Amir Brandy.
- Brandy twice taunted Olsten (including: “If you put that s in my face, I’ll f you up” and later “Put that s* in my face”), called him a derogatory name, and an unidentified bystander then shouted something the officer perceived as escalating.
- Olsten sprayed for several seconds while walking toward the crowd; Brandy and others were hit but not arrested.
- Brandy sued Olsten, Chief Hayden, and the City asserting First Amendment retaliation and state-law claims. Defendants moved for summary judgment.
- The district court denied summary judgment as to Brandy’s First Amendment retaliation claim (rejecting qualified immunity) and denied summary judgment on state-law claims as to official immunity, while reserving ruling on the City’s sovereign immunity defense.
- The City Officials appealed interlocutorily; the Eighth Circuit affirmed the denials as to qualified immunity and official immunity and remanded for the district court to rule on sovereign immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First Amendment retaliation right was clearly established such that Olsten is not entitled to qualified immunity | Brandy: right to be free from government retaliation for protected speech was clearly established and applies to retaliation via pepper spray | Olsten: no clearly established rule that deploying pepper spray at a hostile crowd in these circumstances violated the First Amendment | Court: General rule prohibiting retaliation for protected speech was clearly established; denial of qualified immunity affirmed |
| Whether Brandy’s speech was protected or a true threat (so no First Amendment protection) | Brandy: his remarks were taunts/criticism protected by the First Amendment | Olsten: statements were true threats or otherwise unprotected, justifying force | Court: fact-intensive true-threat inquiry presents a genuine dispute of material fact for the jury; cannot resolve on interlocutory appeal |
| Whether Olsten’s use of pepper spray was motivated (even in part) by retaliatory animus (but-for causation) | Brandy: Olsten singled him out after the verbal exchange, showing retaliatory motive | Olsten: he responded to an escalating, belligerent crowd or an unidentified bystander’s shout, not Brandy’s speech | Court: causation is a factual question not free from doubt; genuine dispute remains and denial of summary judgment stands |
| Whether state-law official immunity / City sovereign immunity bar Brandy’s claims | Brandy: facts permit an inference of bad faith/malice, defeating immunity | City/Olsten: official immunity (and sovereign immunity for the City) shields them | Court: denial of official immunity affirmed (factual dispute on malice); sovereign immunity was not decided below and is remanded for the district court to determine |
Key Cases Cited
- Hartman v. Moore, 547 U.S. 250 (First Amendment prohibits retaliatory government action)
- Ashcroft v. al-Kidd, 563 U.S. 731 (clearly established-law standard for qualified immunity)
- Anderson v. Creighton, 483 U.S. 635 (contours of clearly established rights)
- Hope v. Pelzer, 536 U.S. 730 (officials can be on notice in novel factual circumstances)
- Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (true-threat test and factors)
- Nieves v. Bartlett, 139 S. Ct. 1715 (but-for causation / retaliatory-motive principles)
- Laney v. City of St. Louis, 56 F.4th 1153 (but-for causation required in retaliation claims)
- Thompson v. Dill, 930 F.3d 1008 (limits on interlocutory review of factual disputes and official-immunity rulings)
- Reasonover v. St. Louis Cnty., 447 F.3d 569 (Missouri official-immunity framework)
- Div. of Emp. Sec., Mo. v. Bd. of Police Comm’rs, 864 F.3d 974 (malice/bad-faith standard defeats official immunity)