Frаnk L. Snider, III v. City of Cape Girardeau; Matthew Peters; H. Morley Swingle; State of Missouri
No. 13-1072, No. 13-1108, No. 13-1410, No. 13-1618, No. 13-1619
United States Court of Appeals for the Eighth Circuit
May 30, 2014
Appeals from United States District
Submitted: January 16, 2014
Filed: May 30, 2014 (Corrected: May 30, 2014)
Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
BYE, Circuit Judge.
Officer Matthew Peters of the Cape Girardeau Police Department appeals the district court‘s1 denial of his motion for summary
I
On October 20, 2009, while standing in his front yard, Snider attempted to set fire to an American flag. When he was unable to ignite the flag, he shredded it with a knife and threw it into the street. A neighbor who had observed the incident reported it to the police.
Officer Peters responded to investigate. Upоn arriving at the scene, he saw the flag in the road and Snider standing in his yard. Officer Peters asked Snider why he had destroyed the flag. Snider replied “he hated the United States because it was the country‘s fault that he could not find a job.” Officer Peters issued Snider a citation for violating the city‘s littering ordinance, which was eventually voided.
Upon Officer Peters’ returning to the station, another officer informed him of a Missouri statute prohibiting flag desecration. After reviewing the statute,
Both Officer Peters and prosecuting attorney Swingle stated they were unaware of the United States Supreme Court‘s decisions in Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990), which struck down statutes criminalizing flag desecration as unconstitutional. After Snider‘s arrest, a local news reporter cаlled Swingle and asked him if he was aware of Texas v. Johnson. Upon reading the case, Swingle dismissed the charge against Snider, and Snider was released from jail.
On July 6, 2010, Snider filed this
The district court also denied Officer Peters’ motion for summary judgment on the basis of qualified immunity, concluding Officer Peters had violated Snider‘s constitutional rights under the First and Fourth Amendments. A trial was held to determine Snider‘s damages, after which the district court entered a judgment in favor of Snider and against Officer Peters in the amount of $7,000 in actual damages on December 14, 2012. The court denied punitive damages and entered judgment in favor of the City of Cape Girardeau and against Snider.
Finally, the district court awаrded Snider‘s attorneys $61,890 in attorneys’ fees plus $266.68 in costs. The award was against Officer Peters and Missouri, jointly and severally. The district court declined to apportion the attorneys’ fees or lower the attorneys’ hourly rates.
Officer Peters now appeals the denial of qualified immunity and the attorneys’ fees award. Missouri appeals the determination that
II
We first consider whether the district court erred in denying Officer Peters’ motion for summary judgment on the basis of qualified immunity. For an appeal of a district court‘s denial of qualified immunity, we “accept the district court‘s findings of fact taken in the light most favorable to [Snider].” Stoner v. Watlingten, 735 F.3d 799, 801 n.2 (8th Cir. 2013).
Qualified immunity shields government officials from liability and the burdens of litigation in a
Officer Peters concedes he deprived Snider of his First and Fourth Amendment rights. Thus, the question remains whether those rights were clearly established at the time of Snider‘s arrest. This inquiry “turns on the objective legal reasonableness of [Officer Peters‘] action, assessed in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal quotations and citations omitted). A constitutional or statutory right is clearly established if “[t]he contours of the right [wеre] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 640. To overcome qualified immunity, Snider must prove “in the light of pre-existing law the unlawfulness [of Officer Peters’ conduct was] apparent.” Id.
In Texas v. Johnson, 491 U.S. 397 (1989), the Court invalidated a Texas flag desecration statute as unconstitutionally applied to Johnson, who had burned an American flag while participating in a protest outside of a national political convention. In doing so, the Court highlighted its previous decisions recognizing the “communicative nature of conduct relating to flags.” Id. at 404. “Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in ‘America.‘” Id. at 405.
One year later, the Supreme Court followed up the Texas v. Johnson decision with United States v. Eichman, 496 U.S. 310 (1990), which invalidated the federal Flag Protection Act as applied to defendants who were prosecuted for setting fire to American flags on the steps of the United States Capitol. Id. at 312. The Court reasoned “[p]unishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” Id. at 319.
We agree with the district court. Beginning in 1974, with Spence, and culminating in 1989 and 1990, with Texas v. Johnson and Eichman, the Supreme Court clearly established the First Amendment prohibits the prosecution of an individual for using the American flag to express an opinion. This right had been clearly established for twenty years when Officer Peters arrested Snider on October 24, 2009, and, thus, a reasonably competent officer would have known Snider‘s expressive conduсt was constitutionally protected.
In response, Officer Peters argues his conduct should be insulated because he acted pursuant to an arrest warrant issued by a local magistrate judge, and he cites the Supreme Court‘s recent decision in Messerschmidt v. Millender, 132 S.Ct. 1235 (2012). In Messerschmidt, the Court granted qualified immunity to officers who had executed a search warrant unsupported by probable cause, holding that “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner[.]” Id. at 1245. However, the Court noted “the fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the inquiry into objective reasonableness.” Id.
The Messerschmidt court also affirmed the survival of the standard set forth in Malley v. Briggs, 475 U.S. 335 (1986), which held there would be no grant of qualified immunity if “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Id. at 341. We have also noted the survival of the Malley standard post-Messerschmidt. See Saterdalen, 725 F.3d at 841; Small v. McCrystal, 708 F.3d 997, 1006 (8th Cir. 2013). This outcome is a sensible one as both the Supreme Court and this Court have observed the fact that a warrant has issued should not be dispositive because “it is possible that a magistrate, working under docket pressures, will
Officer Peters’ actions are not insulated by the arrest warrant. This country has a long history of protecting exprеssive conduct on First Amendment grounds, especially when the American flag is the mode of expression. A reasonably competent officer in Officer Peters’ position would have concluded no arrest warrant should issue for the expressive conduct engaged in by Snider. Although it is unfortunate and fairly inexplicable that the error was not corrected by the county prosecutor or the magistrate judge, no warrant should hаve been sought in the first place. Thus, the district court correctly concluded Officer Peters was not entitled to qualified immunity.
III
We next consider whether the district court erred in holding Missouri‘s flag desecration statute to be facially unconstitutional.3 The First Amendment prevents the government from proscribing speech and expressive conduct because of the disapproval of the ideas expressed. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992). Content-based regulations, such as
Imprecise laws can be attacked on their face as either overbroad or vague. The overbreadth doctrine permits the facial invalidation of laws which inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to thе statute‘s plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague if it fails to establish standards for the police and public that are sufficient to
guard against the arbitrary deprivation of liberty interests. City of Chicago v. Morales, 527 U.S. 41, 53 (1999).
Only substantial overbreadth supports facial invalidation, as there are significant social costs in blocking a law‘s aрplication to constitutionally protected conduct. Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). Yet, the fact one can conceive of an impermissible application of a statute is not sufficient to render it susceptible to an overbreadth challenge. Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). “[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 801.
Missouri‘s flag desecration statute provides:
1. Any person who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the flag of the state of
Missouri is guilty of the crime of flag desecration.
“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Here, the Missouri statutе requires the actor to “purposefully and publicly” desecrate the American or Missouri flag to face criminal liability. These requirements ensure the unintended desecration of a flag or the private desecration of a flag will not be punished and, therefore, demonstrate that expressive conduct is the statute‘s target. Public desecration of a flag is more likely to involve expressive conduct than а private desecration. Individuals wishing to convey a message are more likely to do so publicly, as private attempts will likely fail to express a message. Similarly, the accidental and unknowing desecration of a flag undoubtedly will not express any message, and there would be no criminal liability under the statute for such an act. The presence of the intent and public elements demonstrates Missouri intended to regulate expressive conduct.
After construing the statute, the second step is to examine whether the statute criminalizes a “substantial amount” of expressive activity. Williams, 553 U.S. at 292. The showing that a law punishes a “substantial” amount of protected free speech, “judged in relation to the statute‘s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), suffices to invalidate all enforcement of that law, “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression,” id. at 613. See also Virginia v. Black, 538 U.S. 343, 367 (2003).
This regulation criminalizes a substantial amount of expressive activity. It is hard to imagine any scenario in which the elements of the statute would be met and yet the actions would constitute non-expressive conduct. Missouri argues
Finally, we must ask whether the statute is “readily susceptible” to a limiting construction which would render it constitutional. Virginia v. Am. Booksellers Ass‘n, 484 U.S. 383, 397 (1988). Missouri proposes the statute be limited to only non-expressive conduct. Missouri points to a Pennsylvania Supreme Court decision declining to find a state flag desecration statute facially unconstitutional. Commonwealth of Pa. v. Bricker, 666 A.2d 257 (Pa. 1995). However, Pennsylvania‘s statute was distinguishable from
Thus, we conclude
IV
We are next asked to review the district court‘s award of attorneys’ fees against Officer Peters and the State of Missouri. We rеview de novo the legal issues related to an award of attorneys’ fees, while the actual award is reviewed for an abuse of discretion. See Pendleton v. QuikTrip Corp., 567 F.3d 988, 994 (8th Cir. 2009); Williams v. City of Carl Junction, Mo., 523 F.3d 841, 843 (8th Cir. 2008).
A
Officer Peters and Missouri first contend the district court abused its discretion when it failed to apportion the attorneys’ fees between the two and instead held them both jointly and severally liable. In a
Although the district court had discretion to apportion attorneys’ fees between Officer Peters and Missouri, it was not obligated to do so. Here, the district court considered the arguments for apportioning the fees but decided to apply the general rule that non-prevailing defendants are to be held jointly and severally liable for attorneys’ fees and costs. Due to the facts of this case and the well-stated reasons in its order, we cannot say the district court abused its discretion in so ruling.
B
Officer Peters and Missouri next contend the district court abused its discretion in failing to reduce Snider‘s attorneys’ hourly rates when calculating the award. The district court determined the rеasonable attorneys’ fees included a St. Louis locality standard rate, not a Cape Girardeau locality rate.
The starting point in determining an attorneys’ fee award under
Here, the district court noted “[t]o limit rates to those prevailing in a local community might have the effect of limiting civil rights enforcement to those communities where the rates are sufficient to attract experienced counsel.” Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993). Snider produced evidence he could not secure competent counsel in the Cape Girardeau community. Further, Snider‘s attorneys submitted affidavits stating their hourly rates were within or below the market rates for attorneys with comparable experience. The court noted the attorneys had expertise in First Amendment litigation, which provided additional supрort for higher hourly rates. Thus, we conclude the district court did not abuse its discretion in awarding attorneys’ fees based on the rate for the St. Louis legal market, instead of Cape Girardeau.
V
Finally, we consider whether the district court erred in granting summary judgment in favor of Cape Girardeau. Snider argues the district court erred in holding that Cape Girardeau did not have a policy of criminalizing expressive conduct and did not inadequately train and supervise its officers. A municipality can be liable under
Snider first attempts to establish Monell liability based upon the flag desecration ordinance enacted by Cape Girardeau, which is identical to
Snider also claims Cape Girardeau failed to properly train and supervise Officer Peters. The inadequacy of police training may serve as the basis for
The district court properly rejected Snider‘s argument regarding Cape Girardeau‘s failure to train Officer Peters. As the district court observed, Cape Girardeau was not responsible for training Officer Peters. Instead, state law requires that all officers be trained by the Missouri Department of Public Safety. Further, Officer Peters participated in the required and state-approved 600-hour initial training program at Southeast Missouri State University and received continuing education training from approved providers. Cape Girardeau was not responsible for the training program‘s curriculum. Thus, we cannot say the district court erred in holding that Cape Girardeau was not deliberately
VI
Based on the foregoing, we affirm the judgment of the district court and the award of attorneys’ fees.