Sarah K. Molina; Christina Vogel; Peter Groce v. City of St. Louis, Missouri; County of St. Clair, Illinois; John Doe, I-VI; Daniel Book; Joseph Busso; Jason C. Chambers; Lance Coats; Stephen Dodge; Joseph Mader; Michael D. Mayo; Mark S. Seper; William Wethington
No. 21-1830
United States Court of Appeals For the Eighth Circuit
February 2, 2023
STRAS, Circuit Judge.
Submitted: January 12, 2022. Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
Sarah K. Molina; Christina Vogel; Peter Groce
Plaintiffs - Appellees
v.
City of St. Louis, Missouri; County of St. Clair, Illinois; John Doe, I-VI
Defendants
Daniel Book, in his individual capacity; Joseph Busso, in his individual capacity
Defendants - Appellants
Jason C. Chambers
Defendant
Lance Coats, in his individual capacity; Stephen Dodge, in his individual capacity; Joseph Mader, in his individual capacity; Michael D. Mayo, in his individual capacity; Mark S. Seper, in his individual capacity; William Wethington, in his individual capacity
Defendants - Appellants
Submitted: January 12, 2022
Filed: February 2, 2023
Before BENTON, SHEPHERD, and STRAS, Circuit Judges.
Officers in an armored police vehicle shot tear gas at three people near the scene of a protest in downtown St. Louis. The district court concluded that all three had a First Amendment retaliation claim. We agree that one of them does, but qualified immunity shields the officers from the claims brought by the others. We affirm in part, reverse in part, and remand.
I.
A large protest broke out in St. Louis in 2015. In the crowd were Sarah Molina and Christina Vogel, both members of the National Lawyers Guild. In Molina‘s words, their goal was to “protect[] the right to protest,” not to participate in one. To make their self-appointed role known, they wore bright green hats emblazoned with the words “National Lawyers Guild Legal Observer.”
During the protest, St. Louis police officers formed a line and repeatedly ordered the crowd to disperse. Instead of leaving, the protestors responded by throwing rocks and bottles. The officers warned protestors about the possible use of chemical agents, and when they refused to go, shot inert smoke canisters into the crowd.
Vogel recorded these events as Molina stood nearby and watched. Once officers switched to tear gas, the two women left. A few minutes later, they reassembled with five to ten others on Molina‘s property, located about 550 feet away.
Minutes later, an armored vehicle known as the BEAR barreled down the street toward them. As it drove past, tear-gas canisters landed near Molina and Vogel. Although the officers would later deny shooting chemicals from the BEAR, an after-action report revealed otherwise.
As the BEAR continued down the street, Peter Groce followed on a bicycle. Once it stopped, he approached and shouted, “[g]et the fuck out of my park.” The officers responded by launching a tear-gas canister that allegedly hit him in the hip.
Molina, Vogel, and Groce sued the officers and their supervisor, Lieutenant Stephen Dodge, under
II.
In deciding whether the district court should have granted summary judgment, we must answer two questions. First, did the officers violate a constitutional right? Second, was the right clearly
A.
To prevail on their retaliation claim, the plaintiffs must show that “they engaged in protected [
Establishing the violation itself, however, is only half the battle. Getting past qualified immunity requires the plaintiffs to show that it would have been “sufficiently clear [to] every reasonable official . . . that what [they were] doing violate[d]” the
B.
The
Start with the Supreme Court‘s 50-year-old decision in Colten v. Kentucky, 407 U.S. 104 (1972). After a group of college students left a political demonstration in a “procession of [6] to 10” cars, a police officer pulled one of them over for an expired license plate. Id. at 106. A student from another car then went over to observe the traffic stop and ask questions. Eventually, other students joined him, which prompted another trooper to repeatedly ask the group to “disperse.” Id.
Throughout trial and on appeal, the student claimed that Kentucky‘s disorderly-conduct statute was unconstitutionally overbroad. In concluding it was not, the Supreme Court announced that individuals “[have] no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation.” Id. at 109. As for the student‘s refusal to “move on,” it too was unprotected, at least “without more.” Id. Colten suggests that observing police conduct is not expressive.1
None of the plaintiffs’ cases clearly establish otherwise. Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005), is an ordinary
The same goes for the second case, Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020). Like Walker, Chestnut involved a bystander who watched as a police officer “perform[ed] traffic stops.” Id. at 1087. The officer eventually called for backup because of the “suspicious person . . . following her to her car stops.” Id. The arriving officer placed the bystander in handcuffs and detained him for about 20 minutes. See id. at 1087–88. We concluded there was no reasonable suspicion to conduct an investigatory stop because the bystander was not doing anything illegal. Id. at 1090 (stating that “no reasonable officer could conclude that a citizen‘s passive observation of a police-citizen interaction from a distance was criminal“).
It is true, as the plaintiffs note, that some of the language in Chestnut was broad. Relying on a few out-of-circuit cases invoking the
The point is that neither of these
C.
Molina and Vogel try to give us “more” in the form of three other theories. The first is a peaceful-assembly theory: although the protest may have been unruly, the gathering at Molina‘s property was not. The second is based on the bright green hats they wore, which they believe “proclaimed both their affiliation and their role within the larger demonstration.” Their third theory is that the officers must have mistakenly thought they were protestors, which they say is good enough to allow3
them to sue on a
1.
Timing is the basis for the peaceful-assembly theory. The officers did not fire the tear-gas canisters until after Molina and Vogel had reassembled with five to ten others. The argument is that the officers must have been reacting to their lawful assembly, not to the protest itself. There are two problems with this argument.
The first is that not every gathering falls under the umbrella of the
The second is that, even assuming the gathering in Molina‘s yard was protected, there is no evidence to suggest that it had anything to do with the officers’
decision to use tear gas. To succeed on their theory, Molina and Vogel must show that the officers “singled [them] out because” they lawfully reassembled elsewhere, regardless of what happened earlier. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (quotation marks omitted). If something else was the motivation, however, then the reassembly was not a “but-for cause” of their injuries. Nieves, 139 S. Ct. at 1722 (quotation marks omitted).
If Molina and Vogel were “singled out,” the district court suggested that, “at the least,” it was because the officers “assumed” the gathering was a continuation of the earlier unlawful assembly. When they were patrolling the streets surrounding the protest, they were following orders from Lieutenant Dodge to break up the crowd and prevent the protestors from doing further harm. Molina even admitted that she “was assembled with [the protestors]” before moving to her house. The only reasonable inference to draw from these facts is that the officers were “merely carrying out their duty as they underst[ood] it.” Mitchell v. Kirchmeier, 28 F.4th 888, 897 (8th Cir. 2022).
It makes no difference that the officers may have made a mistake. As we have explained, retaliatory animus cannot be the driving force whenever officers act based on their “understanding—however mistaken—of [their] official duties,” even if the mistake turns out to be “unreasonable.”4 Id. at 896. So even if the officers “unreasonably believed that the group was refusing to comply with their earlier directions to disperse, their official orders—not retaliatory animus—caused them to use the tear gas. Baribeau, 596 F.3d at 481.
2.
Returning to the protest itself, their second theory is that wearing the bright green hats expressed a “pro-protest” message. Recall that the hats said, “National
Lawyers Guild Legal Observer.” Although neither their color nor the words emblazoned on them directly conveyed a pro-protest message, Molina and Vogel claim that the act of wearing them sent a “particularized message.” Burnham v. Ianni, 119 F.3d 668, 674 (8th Cir. 1997).
In
Whether wearing the hats expressed a pro-protest message is a close call. On the one hand, knowing a bit more about the National Lawyers Guild could lead a reasonable officer to conclude that Molina and Vogel were there to support the protestors. On the other, the words “legal observer” could lead someone less knowledgeable to think they were neutral, there to make sure that neither the police nor the protestors broke the law. Under the latter view, the hats would identify their role, not express a “particularized message.” Burnham, 119 F.3d at 674. The point is that not everyone would have understood the pro-protest message they were trying to convey. See id.
To the extent courts have recognized that clothing can convey a particularized message, the meaning was easily identifiable. Perhaps the most famous example was the anti-war activist who wore a jacket with the words, “Fuck the Draft.” See Cohen v. California, 403 U.S. 15, 16 (1971). The message was clear: he strongly opposed “the Vietnam War and the draft” and wanted everybody to know it. Id.
The message in Baribeau v. City of Minneapolis was equally clear. 596 F.3d at 470–71. As part of an elaborate protest, the participants “dressed as zombies” by
wearing “white powder and fake blood on their faces and dark makeup around their eyes” and “broadcasted announcements such as ‘get your brains here’ and ‘[b]rain cleanup in Aisle 5.‘” Id. at 470–71. During the protest, they “explained that they meant their actions as an anticonsumerist commentary.” Id. at 471. So every reasonable officer would have understood their anti-consumer-culture message.
The point is that some symbols and words carry a clear message. “Fuck the Draft” unmistakably expresses an anti-war message. See Cohen, 403 U.S. at 16. Displaying a swastika carries a different kind of message, though its import is equally unmistakable. See Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995). And in Tinker v. Des Moines Independent Community School District, the “black armbands” were a “silent symbol . . . of opposition to [the] Nation‘s part in the conflagration in Vietnam” and the wearers’ “objections to the hostilities in Vietnam and their support for a truce.” 393 U.S. 503, 504, 510 (1969).
We cannot say the same thing about bright green hats that say “National Lawyers Guild Legal Observer” on them.5 There is no obvious pro-protest message. Or, at the very least, any pro-protest message is not “beyond debate,” which means that this theory, like the others, cannot overcome qualified immunity. Wesby, 138 S. Ct. at 589 (quoting al-Kidd, 563 U.S. at 741).
3.
Their final theory is that, even if they did not actually engage in
of Paterson, 578 U.S. 266, 268 (2016), Molina and Vogel argue that even a mistaken belief about what they did is good enough because perception is what counts for a constitutional claim like this one.
Heffernan involved the “demot[ion] [of] an employee because [an] official [incorrectly] believed . . . that the employee” had participated “in constitutionally protected political [
The problem with this theory is timing. The Supreme Court decided Heffernan months after the events in this case took place. 578 U.S. at 266. Even if the rule it adopted would otherwise apply here, no “controlling authority” or “robust consensus of cases of persuasive authority” clearly established the right before early 2016—too late for it to matter here. See Wesby, 138 S. Ct. at 589–90 (quoting al-Kidd, 563 U.S. at 741–42); see also Heffernan, 578 U.S. at 275 (Thomas, J., dissenting) (“[F]ederal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated . . . .“).
* * *
Having considered multiple possibilities, we conclude that none of them work. Qualified immunity prevents Molina and Vogel from recovering on their
III.
Groce‘s
Hoyland, 869 F.3d at 656 (citing Hill, 482 U.S. at 461). And at least one case clearly established the right to be free from retaliation in those circumstances. See Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014) (stating that “criticizing a police officer and asking for his badge number is protected speech“); see also Hill, 482 U.S. at 461 (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.“).
A.
To counter what appears to be a clearly established constitutional right, the officers claim this case is different. In their view, Groce acted in an aggressive and threatening manner, which then gave them arguable probable cause to act. Even assuming that the presence of arguable probable cause is an absolute defense to a
Under the “plaintiff-friendly version of the facts,” by contrast, there was no probable cause, arguable or otherwise, to take any action against Groce. N.S. v. Kansas City Bd. of Police Comm‘rs, 933 F.3d 967, 969 (8th Cir. 2019). The officers cannot identify any crime that he allegedly committed. Yet they launched a tear-gas canister at him a few minutes after video
B.
Setting qualified immunity aside, the officers also challenge whether the evidence is specific enough to allege that any of them individually violated Groce‘s
1.
Liability under section 1983 is “personal.” White v. Jackson, 865 F.3d 1064, 1080–81 (8th Cir. 2017). By personal, we mean that “a plaintiff must show each individual defendant‘s personal involvement in the alleged violation.” Id. It does not follow, however, that a plaintiff must be able to “personally identify his assailant[] to avoid summary judgment.” Id. at 1081 (emphasis added).
What we know from the evidence, viewing it in Groce‘s favor, is that someone launched a tear-gas canister from the BEAR. We also know that seven officers were riding in it at the time: Michael Mayo, Joseph Mader, William Wethington, Mark Seper, Daniel Book, Lance Coats, and Joseph Busso. All of them “had access to [chemical] munitions,” which could “be released from one of many portholes of [the] armored vehicle[,] either by hand or using a launcher.”
At this stage, there is enough evidence to establish the “personal involvement” of everyone in the BEAR. Id. at 1081. To be sure, Groce could not see who launched the tear-gas canister. But with multiple “officers present,” the jury could find that each one of them participated in the decision or that one did it “while the other[s] failed to intervene.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007). Under these circumstances, the claims against the individual officers can proceed.
2.
Not so for Lieutenant Dodge. Although Groce alleges that he was “deliberately indifferent to or tacitly authorized the offending acts,” we disagree. Barton v. Taber, 908 F.3d 1119, 1125 (8th Cir. 2018) (quotation marks omitted).
Unlike the individual officers in the BEAR, Lieutenant Dodge had no “personal involvement” in the violation. White, 865 F.3d at 1081. Supervisory status on its own is not enough. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that “vicarious liability is inapplicable to Bivens and § 1983 suits“); Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (“A supervisor may not be held liable under § 1983 for the constitutional violations of a subordinate on a respondeat superior theory.“). And when the officers fired the tear-gas canister at Groce, Lieutenant Dodge was in another vehicle patrolling a different area. To be sure, he gave an order to “use chemical munitions to disperse” the crowd. But he had no notice that his lawful order was “likely to result in a constitutional violation” or that his “supervision [under the circumstances] w[as] inadequate.” Barton, 908 F.3d at 1125.
IV.
We accordingly affirm the denial of summary judgment on Groce‘s
BENTON, Circuit Judge, dissenting in part and concurring in part.
The panel opinion here holds that observing and recording police-citizen interactions was not a clearly established
I.
Two cases bind this court: Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), and Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005). Both cases
found a clearly established
Walker, the earlier case, held that observing police officers could not be outlawed. Id. This court denied qualified immunity to an officer who arrested an individual for “silently watching the [police] encounter from across the street with his arms folded in a disapproving manner.” Id. at 992. The Walker case analyzed the legal effect of only this silent observation. Id. This court held that the officer lacked probable cause because it was “clearly established” that a peaceful onlooker could not be arrested “for obstruction of governmental operations or for any other purported crime.” Id. at 993 (emphasis added). The state, said this court, did not just happen to permit officer-watching, it had to permit it.
This court detailed the nature and origin of Walker‘s clearly established substantive right in Chestnut v. Wallace, 947 F.3d 1085. This court there reaffirmed the constitutional origin of the “clearly established right to watch police-citizen interactions at a distance and without interfering.” Chestnut, 947 F.3d at 1091 (“[I]f the constitution protects one who records police activity, then surely it protects one who merely observes it.“). And it confirmed that the
to information about their officials’ public activities.“); id. (because “there is the right for the eye to see or the ear to hear,” the
Walker and Chestnut correctly attribute this right to the
contextualized an upside-down flag with a peace sign); Baribeau v. City of Minneapolis, 596 F.3d 465, 476, 477 (8th Cir. 2010) (the
The panel opinion here tries to avoid Chestnut and Walker‘s
Again, this violates the prior-panel rule. This court has established Colten‘s reach
More importantly, Hoyland recognized that the Supreme Court had already cabined Colten in City of Houston v. Hill, 482 U.S. 451 (1987). The Court there explained that the Colten ordinance “prohibit[ed] only disorderly conduct or fighting words” and survived the
Finally, Chestnut‘s recognition of a clearly established
Other legal authorities fully support our holding that the right here was clearly established. Every circuit court to have considered the question has held that a person has the right to record police activity in public. [citation omitted]. Four circuits had so decided by the time of the events in question here. [citations omitted]. This robust consensus of cases of persuasive authority suggests that, if the constitution protects one who records police activity, then surely it protects one who merely observes it—a necessary prerequisite to recording.
Chestnut, 947 F.3d at 1090 (emphasis added).8
II.
The panel opinion here attributes that clearly established right to the Fourth, rather than First, Amendment. In doing do, it underappreciates the interplay between First and
Police may not seize a person without suspecting or believing that the person committed or is about to commit a crime. See Waters v. Madson, 921 F.3d 725, 736 (8th Cir. 2019). The
Conduct can be legal—and therefore insufficient, standing alone, to justify a seizure—in one of two ways: First, the conduct might happen to be legal in a certain jurisdiction. In a city that permits skateboarding, for example, an officer cannot seize an individual merely for riding a skateboard because, without more, that legal conduct would not indicate “that criminal activity may be afoot.” See United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation omitted). Second, some conduct does not raise red flags because it must always be legal. In a traditional public forum, an officer cannot seize a person merely for praying the Rosary, pleading the Fifth, or even flying a Nazi flag because that conduct is constitutionally protected, cannot
be illegal, and does not, without more, suggest criminal activity.9 See R.A.V. v. St. Paul, 505 U.S. 377, 381 (1992) (Nazi swastikas could not be outlawed “solely on the basis of the subjects the speech addresses“). See also Baribeau, 596 F.3d at 479 (narrowing a state prohibition to exclude First Amendment-protected activity and holding that “there was no probable cause to arrest the plaintiffs for engaging in protected expressive conduct“).
Chestnut and Walker found it clearly established that peacefully observing a police officer did not furnish reasonable suspicion (or probable cause) of criminal activity and therefore did not justify a
Chestnut and Walker were indeed