51 F.4th 809
8th Cir.2022Background
- On May 30, 2020, Welch was livestreaming downtown Des Moines protests after George Floyd’s death; earlier that evening some protestors had smashed courthouse glass.
- Thirteen minutes after the earlier disturbance, Welch stood on a public sidewalk several feet in front of a police scrimmage line, filming events at a second courthouse; no property damage was occurring at that moment.
- Officer Daniel Dempsey arrived in an armored vehicle, walked around officers who were not engaging Welch, approached her while she was live-streaming, and sprayed chemical agent into her face without warning. Dempsey was on scene about 12 seconds before using force.
- Welch filed a § 1983 claim alleging retaliatory use of force in violation of the First Amendment; the district court denied Dempsey’s motion for summary judgment and found a jury could conclude the spray was retaliatory and that the force would chill ordinary speakers.
- Dempsey appealed the denial of qualified immunity; he argued (a) his action was not motivated by Welch’s speech but by prior riotous activity and (b) he had at least arguable probable cause.
- The Eighth Circuit held it lacked jurisdiction to review disputed factual determinations about motive or whether Welch was inside the police line (evidence sufficiency), but rejected Dempsey’s legal arguments that probable-cause principles insulated him and affirmed denial of qualified immunity because retaliatory use of force was clearly established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officer used force motivated by protected speech (retaliatory use of force) | Welch: spraying was retaliation for her filming/protest speech | Dempsey: action responded to protest-related danger/riot, not speech | Appeal court: motive is a fact question; jurisdictional bar prevents reviewing sufficiency now (trial for factfinder) |
| Whether interlocutory appeal may reexamine factual sufficiency (motive/position) | Welch: district court correctly found triable fact issues | Dempsey: appellate review proper on qualified immunity denial | Held: court lacks jurisdiction to review evidence-sufficiency issues on interlocutory appeal (Johnson v. Jones) |
| Whether arguable probable cause defeats retaliatory-use-of-force claim | Welch: no probable cause; force can be retaliatory independent of seizure doctrines | Dempsey: had arguable probable cause (Welch interfered/was within police line) | Held: probable-cause doctrines for seizures (Nieves) do not control this First Amendment force claim; Dempsey conceded no probable cause to arrest and did not show offense Welch plausibly committed |
| Whether law was clearly established so denial of qualified immunity was proper | Welch: retaliation for protected speech clearly established law | Dempsey: immunity applies because actions were lawful or reasonable | Held: denial of qualified immunity affirmed—retaliatory use of force violating the First Amendment was clearly established (district court’s legal ruling upheld) |
Key Cases Cited
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence may establish factual assumptions on summary judgment)
- Crawford-El v. Britton, 523 U.S. 574 (1988) (retaliation for protected speech offends the Constitution)
- Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014) (elements for retaliatory use of force claim)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (no-probable-cause requirement in retaliatory-arrest context)
- Johnson v. Jones, 515 U.S. 304 (1995) (interlocutory appeals on qualified immunity do not permit review of evidence-sufficiency findings)
- Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (clearly established law regarding retaliatory police conduct)
- Quraishi v. St. Charles Cty., 986 F.3d 831 (8th Cir. 2021) (discussion of clearly established rights in excessive-force/retaliation context)
- Just v. City of St. Louis, 7 F.4th 761 (8th Cir. 2021) (retaliatory arrest and probable-cause analysis)