Alison Dreith v. City of St. Louis, Missouri ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3514
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Alison Dreith
lllllllllllllllllllllPlaintiff - Appellee
v.
City of St. Louis, Missouri
lllllllllllllllllllllDefendant - Appellant
John Doe, in his or her individual and official capacities
lllllllllllllllllllllDefendant
Lt. Scott Boyher, in his individual capacity
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 21, 2022
Filed: December 15, 2022
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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
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WOLLMAN, Circuit Judge.
Police Lieutenant Scott Boyher deployed pepper spray into Alison Dreith’s
face, during a protest in St. Louis, Missouri. Dreith sued Boyher and the City of St.
Louis, alleging, as relevant here, federal claims under 42 U.S.C. § 1983 for retaliatory
use of force in violation of the First Amendment, as well as tort claims under
Missouri law. The district court denied Boyher’s motion for summary judgment
based on his defenses of qualified and official immunity and reserved ruling on
whether the City is entitled to sovereign immunity on the state tort claims. We affirm
the denial of summary judgment as to Boyher, vacate, in part, the denial of summary
judgment to the City, and remand the case for further proceedings.
On September 15, 2017, former police officer Jason Stockley was acquitted of
charges arising from the death of Anthony Lamar Smith. Protestors gathered in
downtown St. Louis after the verdict was announced. Around noon, protestors
moved to the intersection of Tucker Boulevard and Clark Avenue.
The St. Louis Police Department had staged its Civil Disobedience Teams
(CDT) at the police academy, which is located on Tucker Boulevard, just south of
Clark Avenue. Commanding officers decided to remove the CDT officers from the
police-academy location and sent buses to retrieve the officers. Protestors surrounded
the buses after the officers broke their lines and began embarking. According to
Dreith, some protestors threw empty water bottles, which bounced off the buses
without causing damage. The defendants maintain that the protestors were violent,
threw rocks and bottles at the buses and the officers, and broke at least one bus
window.
The Bicycle Response Team (BRT), with Boyher in command, was summoned
to help the buses depart. The BRT attempted to strike a wedge formation in its effort
to clear a lane for the buses. According to Boyher, protestors had locked arms and
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refused to move; some had grabbed officers’ bicycles. Dreith countered that
protestors did not grab officers’ bicycles and that the peaceful protest became chaotic
only after the BRT arrived.
As Dreith walked from City Hall toward Tucker Boulevard at approximately
1:00 p.m., she observed an officer hitting a woman with his bicycle and saw a
protestor being pepper-sprayed. She came within “a couple of feet” of an officer.
Immediately thereafter and without warning, Boyher pepper-sprayed Dreith. Boyher
testified that Dreith had been fighting with the BRT officers and trying to prevent
them from reaching the buses. He claimed that he pepper-sprayed Dreith after seeing
her grab and hold onto an officer’s bicycle. Bystanders helped Dreith, guiding her
to the sidewalk and washing out her eyes. Dreith was not arrested.
Dreith filed suit in federal district court, claiming that Boyher had violated her
Fourth Amendment right to be free from excessive force and that he had pepper-
sprayed her in retaliation for the exercise of her First Amendment rights. She alleged
that the violation of her constitutional rights resulted from the City’s failure to
adequately train or supervise its officers. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658 (1978). She also alleged that the defendants committed the torts of battery
and negligent infliction of emotional distress.
The district court granted summary judgment to the defendants on Dreith’s
§ 1983 Fourth Amendment claims. With respect to the § 1983 First Amendment
retaliatory use-of-force claim and the state tort claims against Boyher, the court found
that a genuine dispute of material fact precluded the grant of summary judgment
based on qualified or official immunity grounds. The court concluded that Dreith had
presented evidence sufficient to allow a jury to find that the City’s failure to train or
supervise resulted in the First Amendment violation. Because the City was not
entitled to summary judgment on the federal claim and thus remained a defendant, the
court chose to reserve its ruling on whether the City was entitled to sovereign
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immunity on the state tort claims. Boyher and the City appeal from the partial denial
of summary judgment.
Our jurisdiction over this interlocutory appeal is limited to “abstract issues of
law” and does not extend to the “determination that the evidence is sufficient to
permit a particular finding of fact after trial.” Johnson v. Jones, 515 U.S. 304, 314,
317 (1995). Accordingly, we accept as true the facts that the district court found were
adequately supported, as well as the facts that the district court likely assumed, to the
extent they are not “blatantly contradicted by the record.” Thompson v. Murray, 800
F.3d 979, 983 (8th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
We review de novo the denial of qualified or official immunity-based summary
judgment. Quraishi v. St. Charles Cnty., 986 F.3d 831, 835 (8th Cir. 2021).
Boyher argues that he is entitled to qualified immunity on Dreith’s claim that
he used force against her in retaliation for her exercise of her First Amendment rights.
Qualified immunity shields government officials from suit in a § 1983 action unless
their conduct violates a clearly established statutory or constitutional right of which
a reasonable official would have known. Id.
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.
Welch v. Dempsey, 51 F.4th 809, 811 (8th Cir. 2022) (citing Peterson v. Kopp, 754
F.3d 594, 602 (8th Cir. 2014)). The district court concluded that there was a genuine
dispute of material fact regarding whether Dreith engaged in protected activity and
whether Boyher’s use of force against her resulted from her engagement in that
activity.
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Boyher contends that his use of force did not violate Dreith’s First Amendment
rights because he had arguable probable cause to deploy pepper spray. His contention
is based on evidence that Dreith was walking near officers during “a violent protest,”
in which “other protestors [were] physically confronting BRT officers by grabbing
their bicycles.” Appellants’ Br. 18. During oral argument, defense counsel further
explained that Dreith had grabbed an officer’s bicycle. When asked to assume that
Dreith had not done so, counsel contended that Dreith had not complied with orders
to back away from the BRT officers.
In claiming that he had arguable probable cause to pepper-spray Dreith because
she grabbed an officer’s bike or failed to comply with police orders, Boyher
“challenges the district court’s conclusions regarding evidence sufficiency and the
genuineness of factual dispute—conclusions that we have no jurisdiction to review.”
Thompson, 800 F.3d at 983; see Welch, 51 F.4th at 812 (“[A]n order deciding which
facts a party may, or may not, be able to prove at trial is not a final decision that may
be appealed.”). Dreith testified that the protest was nonviolent, that she was
complying with the law, that the protestors were not grabbing officers’ bicycles, and
that she did not hear any orders or warnings before Boyher pepper-sprayed her.
Assuming then, as the district court did, that Dreith was “moving to rejoin peaceful
protestors when Defendant Boyher assaulted her without warning and without cause,”
D. Ct. Order of Sept. 13, 2021, at 7–8, she neither physically engaged with officers nor
failed to comply with police orders. Boyher has identified no law that Dreith was
arguably violating, if we assume that she was merely participating in a peaceful protest
and had come within a couple feet of an officer.1
1
See Welch v. Dempsey, 51 F.4th 809, 812–13 (8th Cir. 2022), for additional
reasons for rejecting Boyher’s “arguable probable cause” argument. While a
retaliatory arrest claim requires a showing that the officer acted without probable
cause or arguable probable cause to arrest, no such claim is at issue here. See id. at
811 (citing Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019)).
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Boyher contends that at the time he pepper-sprayed Dreith, it was “not clearly
established that a use of force that does not violate the Fourth Amendment violates the
First Amendment.” Appellants’ Br. 20. Boyher forfeited this argument by failing to
raise it in the district court. In any event, the argument does not undermine the district
court’s conclusion that Dreith’s right to be free from a retaliatory use of force was
clearly established at the time of the incident. D. Ct. Order of Sept. 13, 2021, at 8 n.7
(citing Quraishi, 986 F.3d at 838); see Welch, 51 F.4th at 813; Peterson, 754 F.3d at
603; Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010).
Turning to Dreith’s claims of battery and negligent infliction of emotional
distress, we consider whether Boyher is entitled to official immunity, which, “like
qualified immunity, is a threshold issue and subject to interlocutory appellate review.”
N.S. v. Kan. City Bd. of Police Comm’rs, 933 F.3d 967, 970 (8th Cir. 2019); see State
ex rel. Mo. Dep’t of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985).
Official immunity protects officers from suit over their discretionary acts, unless those
acts were performed “in bad faith or with malice.” Torres v. City of St. Louis, 39
F.4th 494, 508 (8th Cir. 2022) (citation omitted).
Boyher argues that Dreith cannot show bad faith or malice because he used
force only after she had grabbed an officer’s bicycle during a dangerous and chaotic
situation, again recounting disputed facts in his favor. The district court determined
that Dreith had presented sufficient evidence that “Boyher acted in bad faith or with
malice when he applied pepper spray directly into Plaintiff’s face without warning,
when she was merely walking to join protestors and not engaged in any unlawful
acts.” D. Ct. Order of Sept. 13, 2021, at 16. We are without jurisdiction to consider
this claim of evidence insufficiency. See Torres, 39 F.4th at 508 (“As with qualified
immunity, our jurisdiction is limited to issues of law, and this argument is, again,
essentially one of sufficiency of the evidence.”).
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Finally, the City claims that it is entitled to sovereign immunity, an issue upon
which the district court reserved ruling. We have jurisdiction over the City’s
interlocutory appeal because a decision to forgo ruling on immunity is effectively
unreviewable after the defendant has had to proceed to trial. See Payne v. Britten, 749
F.3d 697, 700 (8th Cir. 2014) (“[A] refusal to rule on qualified immunity is effectively
unreviewable on appeal because once the defendant has had to proceed to trial, he or
she has lost the benefit of qualified immunity, that is, the entitlement to be free from
suit.” (quoting Parton v. Ashcroft, 16 F.3d 226, 228 (8th Cir. 1994)). We thus vacate
the denial of summary judgment on the state tort claims and instruct the district court
on remand to reach the merits of the sovereign immunity issue. See id. at 701
(exercising jurisdiction “to compel the district court to decide the qualified immunity
question”); see also Torres, 39 F.4th at 508–10 (addressing the City of St. Louis’s
appeal from the denial of sovereign immunity).
We affirm the district court’s order denying Boyher qualified immunity on
Dreith’s First Amendment claim of the retaliatory use of force. We also affirm the
denial of official immunity on Dreith’s state tort claims. We vacate, in part, the
district court’s order denying summary judgment to the City and remand the matter
with instructions that the district court decide whether the City is immune from suit.
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