58 F.4th 372
8th Cir.2023Background:
- Plaintiffs (three protesters) sued the City of Florissant under 42 U.S.C. § 1983, alleging Monell municipal liability for police conduct at five protests in June–July 2020.
- Plaintiffs do not sue individual officers or challenge Missouri statutes for unlawful assembly (§ 574.040) or refusal to disperse (§ 574.060); instead they allege two unwritten customs: "Arbitrary Declarations" (declaring unlawful assemblies without statutory elements) and "Unlawful Dispersal Commands" (ordering/arresting peaceful protesters to disperse absent statutory violations).
- The FAC alleges those customs chilled protected speech and were unconstitutionally vague, and seeks declaratory/injunctive relief, nominal damages, and fees.
- The district court dismissed under Rule 12(b)(6), holding a municipality’s power to declare unlawful assemblies and order dispersal is not limited to violations of the Missouri criminal statutes and that the FAC failed to plausibly allege a municipal custom, policymaker notice, or vagueness.
- The Eighth Circuit majority affirmed the dismissal; Judge Kelly dissented, arguing the FAC sufficiently pleaded facts to nudge a Monell claim past plausibility and that factual disputes belong in discovery.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether municipal authority to declare unlawful assembly and order dispersal is tethered to Missouri criminal statutes | City may act unconstitutionally if officers declare unlawful assembly only when statutory elements are absent; plaintiffs framed claim around absence of § 574.040/§ 574.060 elements | City argues its civil police power to control assemblies is broader than those statutes and can justify dispersals for noncriminal, legitimate reasons (e.g., traffic control) | Majority: Authority not tethered to criminal statutes; absence of statutory violation does not by itself show constitutional injury; plaintiffs’ theory legally flawed; claim fails on that predicate |
| Whether FAC plausibly alleged a municipal custom or pattern under Monell (continuing widespread misconduct and policymaker notice) | Five incidents over two weeks show a persistent, arbitrary practice that suffices to plead a custom and deliberate indifference | Allegations are conclusory and consistent with lawful explanations; FAC fails to allege policymaker notice or tacit authorization | Majority: FAC fails plausibly to plead the pattern, notice, or final policymaker involvement; dismissal affirmed |
| Vagueness / Due Process challenge to unwritten police customs | Unwritten customs lack fair notice and permit arbitrary enforcement, chilling speech | Vagueness challenge improperly targets agency customs rather than statutes/ordinances; FAC alleges only conclusory arbitrariness and not specific notice problems | Majority: FAC fails to plausibly allege vagueness; close calls and fact-intensive dispersal judgments don’t render unwritten customs void for vagueness |
| Appropriateness of dismissal at pleading stage given possible lawful alternative explanations | Plaintiffs allege specific facts (five incidents, arrests) that plausibly support unconstitutional motive; alternative lawful explanations are not sufficiently concrete to defeat plausibility | District court properly identified obvious lawful alternatives (traffic control, parade of public-safety reasons) making plaintiffs’ allegations merely consistent with lawful conduct | Majority: Dismissal appropriate because complaint did not push claim from conceivable to plausible; Kelly dissents, arguing alternatives weren’t concrete and dismissal was premature |
Key Cases Cited
- Monell v. Department of Social Services, 436 U.S. 658 (municipal liability requires action pursuant to official policy or custom)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: factual matter must plausibly state claim)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must nudge claim from conceivable to plausible)
- Duhe v. City of Little Rock, 902 F.3d 858 (Eighth Circuit: traffic control can justify dispersal)
- Edwards v. South Carolina, 372 U.S. 229 (First Amendment right to peaceful protest)
- Ware v. Jackson County, 150 F.3d 873 (Monell/custom standards articulated)
- McTernan v. City of York, 564 F.3d 636 (absence of policymaker notice can reduce alleged unlawful acts to ad hoc officer directives)
- Shirmer v. Nagode, 621 F.3d 581 (money damages may be appropriate remedy for isolated wrongful arrests rather than injunctive relief)