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In Molina v. City of St. Louis, two lawyers distantly and passively observed the police response to a protest that erupted in response to a white St. Louis police officer’s shooting and killing of a Black teenager. After police officers launched a tear gas cannister near them, the lawyers filed suit against the officers, alleging that the officers retaliated against them for exercising their First Amendment rights.
By: Alaina Valdes
Molina v. City of St. Louis, 59 F.4th 334 (8th Cir. 2023).
I. Introduction
In 2015, protests erupted in response to a white St. Louis police officer’s shooting and killing of a Black teenager. Two lawyers, who had identified themselves as legal observers, distantly and passively observed the police response to the protest. After police officers launched a tear gas cannister near them, the lawyers filed suit against the officers, alleging that the officers retaliated against them for exercising their First Amendment rights.
In Molina v. City of St. Louis, these plaintiffs encountered the harsh consequences of a successful qualified immunity defense when the United States Court of Appeals for the Eighth Circuit ruled that their claims could not proceed. To overcome the officers’ qualified immunity, the plaintiffs had to show that the officers violated a clearly established right, which the Molina court concluded that the lawyers failed to do. In a 2-1 decision, the Eighth Circuit held that the police officers’ qualified immunity defense prevented Molina and Vogel from bringing their First Amendment retaliation claims because observing and recording the police was not a clearly established First Amendment right in 2015. Accordingly, the court held that summary judgment was proper on qualified immunity grounds and prevented their claims from proceeding. Judge Benton, in his dissent, argued that the plaintiffs’ claims should be allowed to proceed because the right to observe police was clearly established in 2015 and binding precedent recognized this right.
II. Facts and Holding
In 2015, roughly 150 people gathered in downtown St. Louis to protest Mansur Ball Bey’s death at the hands of a St. Louis police officer.[1] Outfitted in bright green hats that read “National Lawyers Guild Legal Observer,” Sarah Molina and Christina Vogel were among the crowd.[2] According to Molina, they were there not to protest but to protect the right to protest.[3] Molina watched and Vogel recorded as police officers attempted to disperse the protesters by shooting inert smoke cannisters into the crowd.[4] Once the officers began deploying tear gas, Molina and Vogel left but, within minutes, reassembled on Molina’s property about 500 feet away from the remaining crowd.[5] Soon after, from an armored vehicle known as the BEAR, police officers shot tear gas cannisters that landed near Molina and Vogel.[6]
Molina and Vogel filed suit against the officers in the United States District Court for the Eastern District of Missouri under 42 U.S.C. § 1983. They claimed that the First Amendment protected their acts of observing and recording the police’s conduct at the protest,[7] and they alleged that the officers retaliated against them for engaging in this protected activity.[8] The officers moved for summary judgment on qualified immunity grounds.[9] The district court held that the plaintiffs had a First Amendment retaliation claim and denied the motion, allowing the plaintiffs’ claims to proceed to a jury.[10] The officers then appealed the denial of summary judgment to the Eighth Circuit.[11]
The panel majority held that, because “observing and recording police-citizen interactions was not a clearly established First Amendment right in 2015,”[12] qualified immunity prevented Molina and Vogel from recovering on their First Amendment retaliation claims.[13] Three cases guided the court’s analysis of whether observing and recording police activity was a clearly established right and, thus, whether Molina and Vogel’s claims could proceed: Colten v. Kentucky, Walker v. City of Pine Bluff, and Chestnut v. Wallace.[14]
According to the panel majority, in Colten v. Kentucky, the Supreme Court declared that individuals lack a constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation.[15] The panel majority reasoned that in Colten, without more, the observer’s refusal to “move on” was unprotected,[16] which suggests that observing police conduct is not expressive.[17]
The panel majority also analyzed Walker v. City of Pine Bluff, in which qualified immunity did not shield the officers because they lacked arguable probable cause to arrest the plaintiff.[18] The panel majority further noted that the Walker opinion neither discussed nor even mentioned the First Amendment,[19] thus categorizing it as “an ordinary Fourth Amendment case.”[20]
Finally, the panel majority addressed Chestnut v. Wallace, wherein the court recognized that there is a “clearly established right to watch police-citizen interactions at a distance and without interfering” and that Walker had clearly established this right.[21] But the Molina court contended that Chestnut’s recognition that the right was clearly established was made only on the facts that existed when the bystander was seized,[22] and it further contended that the First Amendment cases only bolstered the court’s Fourth Amendment holding in Chestnut.[23] Accordingly, the panel majority concluded that neither Walker nor Chestnut can clearly establish a First Amendment right to observe police officers.[24]
Judge Benton dissented from the part of the panel majority’s opinion addressing Molina and Vogel’s claims. He determined that, because Molina and Vogel were engaged in protected First Amendment activity, their First Amendment claims should be allowed to proceed.[25] He also emphasized that Walker and Chestnut found a clearly established First Amendment right to observe police officers that existed before the events precipitating this case.[26]
Judge Benton criticized the panel majority’s “underappreciat[ion] [of] the interplay between First and Fourth Amendment rights in [the Eighth Circuit’s] precedent.”[27] The panel majority stated that Walker and Chestnut involved the Fourth Amendment and did not clearly establish a First Amendment right to observe the police.[28] Judge Benton, however, explained that the seizures in those cases were unreasonable under the Fourth Amendment precisely because the seized people had engaged in activity protected by the First Amendment, namely, observing the police from a distance and without interfering.[29] The Fourth Amendment prohibits unreasonable seizures, and it is unreasonable to seize someone solely for conduct not suggesting a crime.[30] Legal conduct “generally does not suggest a crime and therefore does not, without more, furnish the suspicion or belief necessary for a seizure.”[31] Peaceful police observation is an activity that the First Amendment protects and, therefore, must be legal.[32] Consequently, because Walker was arrested while exercising his First Amendment right to observe the police, there could not be reasonable suspicion (or probable cause) to justify the Fourth Amendment seizures.[33]
Judge Benton also noted that the Chestnut court reaffirmed the constitutional origin of “Walker’s clearly established substantive right.”[34] Chestnut confirmed that the First Amendment gives rise to this right by citing seven First Amendment cases, including two from the Eighth Circuit.[35] Importantly, Chestnut recognized this clearly established First Amendment right to observe police interactions not in dicta, but in its holding.[36] Because the Molina panel was bound by decisions of prior panels but “avoid[ed] Chestnut’s and Walker’s First Amendment conclusions,” the panel majority violated the “prior-panel rule.”[37]
Judge Benton also addressed the panel majority’s reliance on Colten and found it had limited reach in the Eighth Circuit.[38] According to Judge Benton, Colten was distinguishable, and reliance on it was misplaced, because Colten involved a direct attack on a state statute and arose from events occurring on a highway. In contrast, Molina and Vogel brought § 1983 claims after they were “(allegedly) teargassed at their home[,] where public safety was not threatened.”[39] Further, the ordinance in Colten survived the First Amendment challenge only because it “infringed no protected speech or conduct.”[40] This protection of speech “underpinned Chestnut’s holding that ‘if officers cannot seize someone who criticizes or curses at them while they perform official duties, they cannot seize someone for exercising the necessarily included right to observe the police in public from a distance and without interfering.’”[41]
III. Legal Background
The First Amendment protects the right to peacefully assemble and the right to engage in free speech.[42] This protection covers “symbolic or expressive conduct as well as . . . actual speech,”[43] and it extends to peaceful protesting.[44] Some circuits—although not the Eighth Circuit—have also recognized a First Amendment right to record law enforcement officials in the performance of their duties.[45] 42 U.S.C. § 1983 provides individuals the right to sue a government official who has caused a deprivation of that individual’s constitutional rights.[46] Qualified immunity, however, is a mechanism by which government officials may be protected against civil lawsuits for damages, including those brought under § 1983.[47] In creating this doctrine, the United States Supreme Court sought to allow government officials some latitude to make “reasonable but mistaken judgments about open legal questions.”[48] The doctrine, therefore, purportedly attempts to balance the need to hold government officials accountable with the need to shield them from “harassment, distraction, and liability when they perform their duties reasonably.”[49]
Under the current qualified immunity doctrine, government officials are immune from damages liability unless the official violated a clearly established statutory or constitutional right of which a reasonable person would have known.[50] To overcome qualified immunity, a plaintiff must establish that (1) the official violated a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct.[51] And a government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every reasonable official would have understood that what he is doing violates that right.[52] This does not require a case directly on point, but existing precedent must have “placed the statutory or constitutional question beyond debate.”[53] There is no set order in which the court must address the two requirements for overcoming qualified immunity,[54] so a court may dismiss a claim upon a finding that the right was not clearly established.[55]
In Walker v. City of Pine Bluff, the Eighth Circuit held that a police officer was not entitled to summary judgment based on qualified immunity.[56] John Walker, silently and from a distance, observed a traffic stop involving young Black men.[57] One of the officers conducting the traffic stop arrested Walker for obstructing governmental operations in violation of state law.[58] The issue in Walker was whether the officer had arguable probable cause to arrest Walker “for obstructing governmental operations because Walker distracted officers who were conducting a traffic stop by silently watching the encounter from across the street with his arms folded in a disapproving manner.”[59] The Walker court determined that the notion that Walker created a distraction was “preposterous” and, therefore, concluded that “[n]o reasonable police officer could believe that he had arguable probable cause to arrest such an on-looker in this situation, for obstruction of governmental operations or for any other purported crime.”[60] Accordingly, the court held that denial of the officer’s motion for qualified immunity protection was proper.[61]
In Chestnut v. Wallace, the Eighth Circuit again affirmed the denial of an officer’s motion for summary judgment on qualified immunity grounds.[62] There, a police officer stopped, frisked, and handcuffed Kevin Chestnut, who had been watching another police officer perform traffic stops.[63] The court stated that “Walker establishes that [the officer] violated Chestnut’s clearly established right to watch police-citizen interactions at a distance and without interfering” and that “Walker puts this constitutional question beyond debate.”[64] The court added that “other legal authorities fully support our holding that the right here was clearly established.” [65] And, if those cases suggest that the constitution protects recording police activity, then observing—“a necessary prerequisite to recording”—police activity is surely protected as well.[66] The court, therefore, held that, in 2015, it was clearly established that citizens had a right to watch police-citizen interactions at a distance and without interfering.[67] Thus, without more indication of wrongdoing, the officers could not detain Chestnut.[68]
V. Comment
In holding there was no clearly established First Amendment right to observe and record police, the panel majority “ma[de] the search for clearly established law increasingly unlikely to succeed, rendering qualified immunity ‘nearly absolute’ and placing a heavy thumb on the scale in favor of government interests.”[69] The Eighth Circuit’s narrow approach in analyzing whether the right was clearly established and the high burden that such an approach imposes, in effect, provide government officials an incredible amount of leniency under the qualified immunity doctrine.
Furthermore, the outcomes in Molina and similar cases reduce government officials’ legal accountability. Shielding government officials from the consequences of their reasonable mistakes necessarily shifts the emphasis away from holding these officials accountable. And, in deemphasizing legal accountability, this shift upsets the balance that qualified immunity purportedly sought to strike in a way that disadvantages not only certain plaintiffs but also society at large. The bolstering of government officials’ immunity from legal recourse, which arguably is deserved here, reduces the protection afforded to observing and recording police conduct. But that activity has considerable social value. It incentivizes police to act lawfully and responsibly in the first place, thus serving as a proactive measure to achieve greater accountability—distinct from the retroactive way in which the legal system might achieve accountability. Given these unfortunate implications, the legal system and society at large may benefit if, in addressing the qualified immunity defense, courts were to remain more cognizant of the interest in police accountability and approach the “clearly established” right analysis in a less stringent manner than did the Eighth Circuit in Molina.
[1] Molina v. City of St. Louis, No. 4:17-CV-2498, 2021 WL1222432 at *1 (E.D. Mo. 2021), rev’d in part, aff’d in part, 59 F.4th 334 (8th Cir. 2023); Appellee’s Brief at 2, Molina v. City of St. Louis, No. 4:17-CV-2498, 2021 WL1222432 at *1 (E.D. Mo. 2021), rev’d in part, aff’d in part, 59 F.4th 334 (8th Cir. 2023), 2021 WL4995675 at *i.
[2] Molina, 59 F.4th at 337.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 338.
[8] Id. at 337. Other defendants (besides the officers who were in the BEAR) included the officers’ supervisor and the City of St. Louis. Molina v. City of St. Louis, No. 4:17-CV-2498, 2021 WL1222432 at *1 (E.D. Mo. 2021), rev’d in part, aff’d in part, 59 F.4th 334 (8th Cir. 2023). The plaintiffs’ other claims (besides the First Amendment retaliation claim) included a Fourth Amendment excessive force claim against the officers and a claim against the City for failure to intervene. Molina v. City of St. Louis, No. 4:17-CV-2498, 2021 WL1222432 at *3 (E.D. Mo. 2021), rev’d in part, aff’d in part, 59 F.4th 334 (8th Cir. 2023).
[9] Molina, 59 F.4th at 337.
[10] Id.
[11] Id.
[12] Id. at 338.
[13] Id. at 343.
[14] Id. at 338–40.
[15] Id. at 339 (quoting Colten v. Kentucky, 407 U.S. 104, 109 (1972)).
[16] Id. (quoting Colten, 407 U.S. at 109).
[17] Id.
[18] Id. (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 993 (8th Cir. 2005)).
[19] Id.
[20] Id.
[21] Id. (quoting Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020)).
[22] Id. (quoting Chestnut, 947 F.3d at 1090).
[23] Id.
[24] Id. at 340.
[25] Id. at 348 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[26] Id. at 345 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[27] Id. at 347 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[28] Id. at 340.
[29] Id. at 348 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[30] Id. (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[31] Id. (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[32] Id. (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[33] Id. (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[34] Id. at 345 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[35] Id. (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[36] Id. at 347 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[37] Id. at 346 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[38] See id. 346–47 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[39] Id. at 347 (Benton, J., dissenting from Part II of the opinion but concurring in Part III).
[40] Id. at 345 (Benton, J., dissenting from Part II of the opinion but concurring in Part III) (quoting City of Houston v. Hill, 482 U.S. 451, n.14 (1987)).
[41] Id. at 347 (Benton, J., dissenting from Part II of the opinion but concurring in Part III) (quoting Chestnut v. Wallace, 947 F.3d 1085, 1091 (8th Cir. 2020)).
[42] U.S. Const. amend. I.
[43] Virginia v. Black, 538 U.S. 343, 358 (2003).
[44] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 886 (1982).
[45] See, e.g., Gericke v. Begin, 753 F.3d 1, 7–9 (1st Cir. 2014); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 586–87 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
[46] 42 U.S.C. § 1983.
[47] See Harlow v. Fitzgerald, 457 U.S. 800, 818 n.30 (1982). Police officers are among this group of government officials. 2 Sheldon H. Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 8:1 (2020).
[48] Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
[49] Id.
[50] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[51] Ashcroft, 563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).
[52] Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
[53] Id. at 741.
[54] Pearson v. Callahan, 555 U.S. 223, 236 (2009).
[55] See id.
[56] Walker v. City of Pine Bluff, 414 F.3d 989, 993 (8th Cir. 2005).
[57] Id. at 991; Chestnut v. Wallace, 947 F.3d 1085, 1089 (8th Cir. 2020).
[58] Walker, 414 F.3d at 991.
[59] Id. at 992.
[60] Id. at 993.
[61] Id.
[62] Chestnut, 947 F.3d at 1087.
[63] Id.
[64] Id. at 1090.
[65] Id. at 1090–91.
[66] Id.
[67] Id. at 1090.
[68] Id. at 1091.
[69] Tyler Finn, Qualified Immunity Formalism: “Clearly Established Law” and the Right to Record Police Activity, 119 Colum. L. Rev. 445, 461 (2019).