Essence Welch, Plaintiff - Appellee, v. Daniel Dempsey, individually and in his official capacity as a law enforcement officer of the Des Moines, Iowa Policе Department, Defendant - Appellant.
No. 21-3504
United States Court of Appeals For the Eighth Circuit
October 20, 2022
Submitted: September 22, 2022
Appeal from United States District Court for the Southern District of Iowa - Central
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
Essence Welch sued police officer Daniel Dempsey under
Welch participated in protest activities in downtown Des Moines on the evening of May 30, 2020, in the aftermath of the death of George Floyd in Minneapolis. At one point, protestors threw rocks at an historic county courthouse and broke glass. Welch was near that scene, recording the events on her cellular phone.
The incident in question occurred about thirteen minutes later, after Welch had moved across the street to the vicinity of a different courthouse facility. Welch was then broadcasting a video of events taking place in front of the second courthouse building. According to the facts assumed by the district court, no property dаmage was occurring at the time of the incident, and much of an erstwhile crowd had migrated away from the courthouse.
Welch was standing “before” a scrimmage line of police officers who were protecting the courthouse, and she was located on the “edge” of the line. Video evidence confirms that Welch was standing on a public sidewalk several feet away from a line of officers—forward and to the right of the line from the perspective of the officers. See Scott v. Harris, 550 U.S. 372, 380-81 (2007).
Dempsey arrived behind the police line in an armored vehicle, walked around a group of officers who were taking no action against Welch, approached Welch while she was live-streaming the events, and sprayed her in the face with a chemical agent. Dempsey gave no warning to Welch, and he was on the scene for оnly twelve seconds before he deployed force.
To establish a violation of the First Amendment based on the retaliatory use of force, a plaintiff must show that (1) she engaged in protected activity, (2) the officer used force that would chill a person of ordinary firmness from continuing the protected activity, and (3) the use of force was motivated by the exercise of the protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). When a claim alleges a retaliatory arrest, which is not the assertion here, a plaintiff also must show as a general matter that the officer acted without probable cause to arrest. Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019).
The district court denied Dempsey‘s motion for summary judgment on the claim thаt he used force against Welch in retaliation for her exercise of rights under the First Amendment. The court concluded that Welch was exercising her right to protest discriminatоry policing and was engaged in protected activity when Dempsey used force against her. The court further reasoned that Dempsey‘s action would chill a pеrson of ordinary firmness from continuing her protected activity.
On the question of motive, the court determined based on the circumstantial evidence that a reasonable jury could find that Welch‘s exercise of her First Amendment rights was the but-for cause of
On appeal, Dempsey‘s principal argument is that his use of force was not motivated by Welch‘s exercise of constitutional rights, but rather by Welch‘s actions in the wake of riotous activity that occurred earlier in the evening. He contends that he would have taken the same action against Welch regardless of her protected speech. Dempsey asserts that the district court‘s conclusion that a jury could find to the contrary was based on “speculation,” and that he is therefore entitled to qualified immunity.
We lack jurisdiction to consider this contention because it concerns a matter of evidence sufficiency. Johnson v. Jones, 515 U.S. 304, 313 (1995). In an interlocutory appeal raising a defense of qualified immunity, this court has jurisdiction to address only an order deciding a purely legal issue of whether the facts alleged by a plaintiff show a violation of clearly established law. By contrast, an order deciding which facts a party may, or may not, be able to prove at trial is not a final deсision that may be appealed. The district court‘s determination that a reasonable jury could find that Dempsey acted with retaliatory motive is a matter of evidence sufficiency that is not appealable at this juncture. Of course, Dempsey may advance his position regarding motivation before a jury, and in post-trial motiоns or a post-judgment appeal as warranted, but we lack jurisdiction to conduct the suggested review in this interlocutory appeal. See Riggs v. Gibbs, 923 F.3d 518, 524 (8th Cir. 2019); Austin v. Long, 779 F.3d 522, 524 (8th Cir. 2015); Bearden v. Lemon, 475 F.3d 926, 930 (8th Cir. 2007); Schilcher v. Univ. of Ark., 387 F.3d 959, 966 (8th Cir. 2004); Thomas v. Talley, 251 F.3d 743, 747 (8th Cir. 2001).
Dempsey also maintаins that there was “arguable probable cause demonstrating Welch was interfering with the officers’ duties in coming within the police line.” This argument, too, founders on a jurisdictionаl limitation. The district court assumed, consistent with video evidence, that Welch was positioned “before” the police line. Dempsey‘s argument that Welch was “within” the pоlice line, and thereby “interfering” with officers, seeks to challenge the district court‘s factual assumption that Welch was not within the police line. We lack jurisdiction to cоnsider that question of evidence sufficiency. Johnson, 515 U.S. at 313.
Dempsey‘s argument based on “arguable probable cause” fails for other reasons as well. Probable cause is а constitutional standard under the Fourth Amendment that must be satisfied in order to conduct a search or seizure. Dempsey does not argue that this case involves a search or seizure, and he does not explain why the asserted existence of “arguable probable cause” would be dispositive as a matter of law on a claim аlleging retaliatory use of force in violation of the First Amendment. His cited authorities concern seizures: a claim of retaliatory arrest under the First Amendment, Just v. City of St. Louis, 7 F.4th 761, 768-69 (8th Cir. 2021), and an allеgation of unreasonable seizure under the Fourth Amendment, Peterson, 754 F.3d at 598. Nieves held that a First Amendment retaliatory arrest claim should not turn solely on the personal motive of the arresting offiсer, explaining that “[i]n the Fourth Amendment context,” the Court
Nor does Dempsey, having conceded in the district court that there was no probable cause to arrest Welch, identify any law that she was arguably violating when he pepper-sprayed her in the face. He suggests only that persons other than Welch took part in a “riot” at an earlier time, see
For these reasons, the order of the district court denying qualified immunity on Welch‘s claim alleging retaliatory use of force in violation of the First Amendment is affirmed.