59 F.4th 334
8th Cir.2023Background
- In 2015 St. Louis protests, Sarah Molina and Christina Vogel (wearing bright green “National Lawyers Guild Legal Observer” hats) observed and recorded police activity, then moved to Molina’s property ~550 feet away.
- An armored police vehicle (the BEAR) drove past and officers fired chemical munitions; tear-gas canisters landed near Molina and Vogel.
- Peter Groce followed the BEAR by bicycle, shouted “get the fuck out of my park” at officers, and was struck by a tear-gas canister.
- Molina, Vogel, and Groce sued under 42 U.S.C. § 1983 alleging First Amendment retaliation; the district court denied qualified immunity.
- The Eighth Circuit panel held Groce’s retaliation claim could proceed against the BEAR officers, but granted qualified immunity to the officers as to Molina and Vogel; a partial dissent argued binding circuit precedent required permitting Molina and Vogel’s First Amendment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether observing/recording police is protected and "clearly established" pre-2015 | Molina/Vogel: observing and recording police is First Amendment activity and was clearly established | Officers: controlling precedent (Colten) and circuit law did not clearly establish a First Amendment right to observe/record in 2015 | Not clearly established for Molina/Vogel; qualified immunity applies |
| Whether wearing “Legal Observer” hats is expressive conduct conveying a pro‑protest message | Molina/Vogel: hats conveyed a particularized, pro‑protest message (expressive conduct) | Officers: hats identify role or are neutral; message not obvious to a reasonable officer | Not beyond debate that hats conveyed a particularized message; qualified immunity applies |
| Whether an officer’s mistaken belief that a person engaged in protected activity suffices (Heffernan theory) | Molina/Vogel: even a mistaken officer perception supports retaliation claim | Officers: Heffernan postdates the events or was not clearly established at the time | Heffernan could not clearly establish the right for these events; does not overcome qualified immunity here |
| Groce: whether his shouted criticism was protected and whether officers had arguable probable cause; who is liable | Groce: shouting at officers is protected speech; no probable cause; specific BEAR occupants can be held liable even if shooter not identified | Officers: his conduct was aggressive/threatening; arguable probable cause; lack of identification of shooter defeats personal liability | Groce’s speech protected and clearly established; no probable cause on plaintiff-friendly facts; denial of qualified immunity affirmed as to BEAR officers; supervisory Lt. Dodge not personally liable |
Key Cases Cited
- Colten v. Kentucky, 407 U.S. 104 (1972) (held no constitutional right to observe issuance of a traffic ticket; distinguishing limits of protected observation)
- Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005) (denied qualified immunity for arresting a peaceful onlooker observing police)
- Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020) (recognized a clearly established right in this circuit to watch/record police interactions at a distance)
- Heffernan v. City of Paterson, 578 U.S. 266 (2016) (retaliation claim may rest on official’s mistaken belief that employee engaged in protected activity)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (retaliation requires but‑for causation between protected activity and adverse action)
- Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014) (criticizing officers and asking for badge number is protected speech)
- Reichle v. Howards, 566 U.S. 658 (2012) (qualified immunity requires that the unlawfulness be clearly established)
- Wesby v. District of Columbia, 138 S. Ct. 577 (2018) (requiring that existing precedent put the constitutional question "beyond debate" for clearly established rule)
- City of Houston v. Hill, 482 U.S. 451 (1987) (First Amendment protects criticism of police; limited application of Colten)
- Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (distinguishing unreasonable officer mistakes in Fourth Amendment context and discussing expressive conduct)