51 F.4th 283
8th Cir.2022Background
- Pastor Raymond Redlich and Christopher Ohnimus (church volunteers) distributed bologna sandwiches and water to homeless individuals in St. Louis on Oct. 31, 2018 and were cited under a St. Louis food code requiring permits for “potentially hazardous food.”
- The City declined to prosecute the citations and said enforcement against feeding the homeless was not a priority, but the plaintiffs brought an as-applied constitutional challenge seeking declaratory and injunctive relief.
- The challenged Ordinance adopted the 2009 National Food Code definition of “potentially hazardous food” and required temporary-food permits with safety requirements (fees, advance notice, handwashing, water, single-use tableware, etc.).
- While litigation was pending the City revised the code (2020 and 2021 Ordinances) to add a reduced-cost Charitable Feeding Temporary Food Permit and training program; the district court found the plaintiffs’ claims not moot.
- The district court granted summary judgment to the City on Free Exercise, Free Speech (expressive-conduct), hybrid-rights, and related claims; the plaintiffs appealed and the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Free Speech (expressive conduct) — does ordinance unlawfully restrict expression by banning distribution of potentially hazardous food without permit? | Redlich: distributing food is communicative (conveys God’s love); ordinance burdens that speech. | City: regulation targets non-speech food-safety risks, furthers substantial public-health interest, and is permissible under O’Brien. | Court: Applied O’Brien; City’s interest in preventing foodborne illness is substantial, the Ordinance furthers that interest and is narrowly tailored; summary judgment for City. |
| Hybrid-rights (Free Exercise + Speech) — does a hybrid claim trigger strict scrutiny under Smith? | Redlich: combined Free Exercise and Speech claims require strict scrutiny and ordinance fails. | City: Free Exercise claim fails and speech claim fails, so no hybrid exception; apply neutral-law principles. | Court: Both constituent claims fail, so hybrid-rights exception does not apply; affirmed. |
| Free Exercise (as-applied) — does the Ordinance violate free exercise by burdening religious duty to feed the poor? | Redlich: ordinance burdens religiously motivated feeding of homeless. | City: neutral, generally applicable public-health regulation; later code amendments provide charitable permit/training. | Court: Free Exercise claim not viable (plaintiffs effectively concede/nonprevailing); summary judgment for City. |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (expressive conduct can be protected speech)
- Spence v. Washington, 418 U.S. 405 (1974) (test for whether conduct is sufficiently communicative)
- United States v. O’Brien, 391 U.S. 367 (1968) (incidental-burden test for regulation of expressive conduct)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (conduct is not protected speech solely by intent—must be inherently expressive)
- Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) (narrow tailoring requires regulation effectively advance interest, not least restrictive means)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (time, place, manner restrictions and availability of alternative channels)
- Employment Div. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws do not trigger strict scrutiny for Free Exercise)
- McCullen v. Coakley, 573 U.S. 464 (2014) (as-applied challengers must show law likely to be unconstitutionally applied to them)