11 F.4th 914
8th Cir.2021Background
- Plaintiff Sally Ness, a Bloomington resident, photographed and videotaped activity at Smith Park (including children) to document alleged overuse of park by a nearby center and school and posted images online.
- In 2019 police warned Ness she could be arrested under Minnesota's harassment statute for her filming; no criminal charges were filed. The city later enacted an ordinance banning intentional photography/recording of a child in city parks without parental consent (Bloomington City Code § 5.21(23)).
- Ness sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the state harassment statute and the city ordinance, plus nominal damages; the Attorney General intervened to defend the statute.
- The district court dismissed the complaint and denied Ness summary judgment; it found lack of standing/mootness for the harassment statute claim, granted qualified immunity to the officers, and rejected the First Amendment challenge to the ordinance.
- On appeal the Eighth Circuit: held Ness’s challenge to the 2019 harassment statute moot (the statute was amended in 2020 to add an intent requirement); affirmed qualified immunity for the officers; affirmed dismissal of the Monell-based nominal damages claim; but reversed and entered judgment for Ness as to the city ordinance as applied to her filming.
- The court ruled Ness’s photography/videography was expressive (news‑gathering) activity in a traditional public forum; the ordinance was content-based as applied and failed strict scrutiny because it was not narrowly tailored to the asserted interest in protecting children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to 2019 Minnesota harassment statute | 2019 statute lacked intent requirement and chilled Ness's speech; injunction necessary | Legislature amended statute in 2020; claim therefore moot | Claim for injunctive relief against 2019 statute is moot because 2020 amendment requires specific intent and does not disadvantage Ness in the same way |
| Qualified immunity for officers who warned Ness about enforcement of harassment statute | Officers chilled Ness's right to film by threatening prosecution; nominal damages available | Officers reasonably relied on an existing state statute and were not clearly violating a settled constitutional right | Officers entitled to qualified immunity; dismissal of individual capacity damages affirmed |
| Municipal liability (nominal damages) for enforcement threats under Monell | City responsible for constitutional injury caused by its officers' threats | Ness failed to allege a municipal policy or custom directing unconstitutional enforcement; enforcement of state law is not municipal policy | Monell claim for nominal damages dismissed for failure to allege a municipal policy causing the violation |
| Constitutionality of city ordinance prohibiting photographing/recording children in parks | Ordinance unconstitutionally restricts First Amendment activity (news gathering) and is content-based and overbroad as applied | Ordinance serves compelling interest protecting children from intimidation/exploitation; is a valid time, place, manner regulation | Ordinance is content-based as applied; fails strict scrutiny because it is not narrowly tailored to the asserted interest; judgment for Ness on as-applied First Amendment claim |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes pleading standard for civil complaints)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (mootness and live controversy doctrine)
- Phelps-Roper v. City of Manchester, 697 F.3d 678 (repetition‑yet‑evading‑review and mootness principles)
- Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (mootness and same‑fundamental‑way test)
- SD Voice v. Noem, 987 F.3d 1186 (mootness when statute amended)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
- District of Columbia v. Wesby, 138 S. Ct. 577 (clearly established law standard for qualified immunity)
- Pierson v. Ray, 386 U.S. 547 (reasonableness of reliance on statute for immunity)
- Michigan v. DeFillippo, 443 U.S. 31 (enforcement of a statute generally forecloses officers from second‑guessing constitutionality)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (municipal liability requires policy or custom)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (official policymaker and municipal decisionmaking)
- Citizens United v. FEC, 558 U.S. 310 (governmental restrictions on speech and expressive conduct analysis)
- ACLU of Ill. v. Alvarez, 679 F.3d 583 (news‑gathering and recording as protected speech)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (forum analysis and public forum doctrine)
- McCullen v. Coakley, 573 U.S. 464 (narrow tailoring for time, place, manner restrictions)
- Reed v. Town of Gilbert, 576 U.S. 155 (content‑based restrictions trigger strict scrutiny)
- FCC v. League of Women Voters of Cal., 468 U.S. 364 (content‑based analysis requires examination of speech content)
- Branzburg v. Hayes, 408 U.S. 665 (news gathering receives First Amendment protection)
- Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (strict scrutiny and overbreadth principles)