867 F.3d 1067
8th Cir.2017Background
- Ray Scott leased and operated the Villa Motel in Beatrice, Nebraska; the City and Scott disputed unpaid lodging taxes for years.
- In November 2010, the City received photographs suggesting insanitary and hazardous conditions at the Motel; City Attorney Tobias Tempelmeyer directed Building Inspector Dennis Mitchell and Deputy State Fire Marshal Sean Lindgren to inspect.
- Mitchell obtained a warrant, inspected the Motel with Lindgren, and Lindgren found numerous fire-code and safety violations, concluding the Motel was not approved for human occupancy.
- Although Mitchell believed the defects were not life-threatening and had not previously condemned such properties, Tempelmeyer instructed him to condemn the Motel under the City Code incorporating the International Property Maintenance Code.
- Scott sued under 42 U.S.C. § 1983 claiming First Amendment retaliation (for prior speech about the tax dispute) and a Fourth Amendment violation; the district court granted summary judgment to the City and mayor, granted Tempelmeyer summary judgment on the Fourth Amendment claim, but denied Tempelmeyer qualified immunity on the First Amendment retaliation claim.
- The Eighth Circuit reviewed the interlocutory denial of qualified immunity and reversed, holding that (1) the right asserted was not clearly established and (2) probable cause supported the condemnation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tempelmeyer can be held liable for First Amendment retaliation for directing an inspection and condemnation | Scott: Tempelmeyer ordered enforcement in retaliation for Scott’s protected speech about the tax dispute | Tempelmeyer: Qualified immunity applies because no clearly established right barred directing regulatory enforcement supported by probable cause | Reversed denial of qualified immunity; right not clearly established |
| Whether absence of probable cause is required to prove causation when one official with animus induces another to enforce | Scott: Osborne/Williams support that selective enforcement/retaliation claim can be shown even without showing absence of probable cause | Tempelmeyer: Precedent (including Reichle and related Eighth Circuit cases) shows no clearly established right to be free from retaliatory enforcement supported by probable cause | Court: It was not clearly established that absence of probable cause is not required; Williams’ extension was debatable and later cases left the issue unsettled |
| Whether the condemnation was supported by probable cause | Scott: Condemnation was motivated by retaliation and improper because Mitchell did not think condemnation was necessary | Tempelmeyer: Photographs and inspectors’ findings showed insanitary, unsafe conditions supporting condemnation | Held: Probable cause supported condemnation (insanitary conditions, black mold, open gas piping, other hazards); thus qualified immunity applies |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (interlocutory appeal of denial of qualified immunity available under collateral order doctrine)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard — protection unless official violated clearly established right)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (right must be "clearly established" to overcome qualified immunity)
- White v. Pauly, 137 S. Ct. 548 (2017) (qualified immunity protects all but plainly incompetent or those who knowingly violate law)
- Mullenix v. Luna, 136 S. Ct. 305 (2015) (qualified immunity principles reiterated)
- Hartman v. Moore, 547 U.S. 250 (2006) (retaliatory prosecution claims require proof of absence of probable cause when connecting animus of one actor to prosecutor’s decision)
- Osborne v. Grussing, 477 F.3d 1002 (8th Cir. 2007) (selective prosecution framework applied to retaliatory regulatory enforcement)
- Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007) (applied Hartman reasoning to multi-actor municipal enforcement; presence of probable cause undermines causal link)
- Cross v. Mokwa, 547 F.3d 890 (8th Cir. 2008) (discussing limits of Williams’ extension)
- McCabe v. Parker, 608 F.3d 1068 (8th Cir. 2010) (absence of probable cause required in certain retaliatory arrest claims)
- Reichle v. Howards, 566 U.S. 658 (2012) (no clearly established right to be free from retaliatory arrest supported by probable cause)