Takeaway
In short, the court protected Groce’s clearly established right to criticize police, but held that in 2015 the asserted rights to observe, record, assemble, or signal support through legal-observer hats were not clearly established enough to defeat qualified immunity.
During a 2015 protest in downtown St. Louis, Sarah Molina and Christina Vogel, National Lawyers Guild legal observers wearing bright green hats, watched and recorded police activity. After officers ordered protesters to disperse and protesters threw rocks and bottles, police used smoke and then tear-gas canisters. Molina and Vogel left the immediate area and soon regrouped with several people on Molina’s property, about 550 feet away. An armored police vehicle, the BEAR, drove past them, and tear-gas canisters landed nearby.
Peter Groce followed the BEAR on his bicycle. When it stopped, he approached and yelled, “get the fuck out of my park.” Officers inside the vehicle then launched a tear-gas canister that allegedly struck him in the hip.
Molina, Vogel, and Groce sued several officers and Lieutenant Stephen Dodge under 42 U.S.C. § 1983, alleging First Amendment retaliation. The district court denied the officers’ motion for summary judgment based on qualified immunity. The Eighth Circuit affirmed that denial as to Groce’s claim against the individual officers riding in the BEAR, but reversed as to Molina, Vogel, and Lieutenant Dodge.
Issue #1
Whether Molina and Vogel had a clearly established First Amendment right in 2015 to observe and record police conduct during the protest.
Holding
No. Even assuming that observing and recording police activity can be protected First Amendment activity, that right was not clearly established in 2015.
Reasoning
A First Amendment retaliation claim requires protected activity, an adverse action that would chill an ordinary person from continuing that activity, and but-for causation. To overcome qualified immunity, however, plaintiffs must also show that existing precedent made the asserted right sufficiently clear to every reasonable officer.
The court read Colten v. Kentucky as indicating that observing police conduct, without more, is not necessarily expressive activity protected by the First Amendment. The plaintiffs’ principal Eighth Circuit authorities, Walker and Chestnut, were Fourth Amendment cases holding that officers lacked probable cause or reasonable suspicion to seize passive observers; they did not clearly establish a First Amendment right to observe police officers.
Nor was a First Amendment right to record police clearly established by 2015. Decisions recognizing such a right either came later or did not establish a sufficiently uniform, controlling rule that would have given these officers fair warning at the time of the protest.
Issue #2
Whether Molina and Vogel’s gathering, clothing, or the officers’ perceived belief that they were protesters supplied a clearly established First Amendment basis for their retaliation claims.
Holding
No. None of the three theories overcame qualified immunity.
Reasoning
The group gathered on Molina’s property primarily to find a safe place away from the protest, not to engage in speech, petitioning, religious exercise, or other First Amendment activity. Even if the gathering qualified as protected assembly, the evidence did not show that the officers used tear gas because of that assembly. The only reasonable inference was that officers were carrying out Lieutenant Dodge’s order to disperse what they believed was a continuation of the earlier unlawful protest; an official-duty motive, even if based on a mistaken understanding, is not retaliatory animus.
The green hats identifying Molina and Vogel as “National Lawyers Guild Legal Observer[s]” did not convey an unmistakable pro-protest or other particularized message. A knowledgeable observer might infer support for protesters, but another reasonable officer could regard the hats as identifying a neutral monitoring role. Unlike plainly expressive symbols or messages, any asserted meaning was not beyond debate.
The officers’ possible mistaken belief that Molina and Vogel were protesters did not clearly establish liability. The plaintiffs relied on Heffernan v. City of Paterson, which recognized a claim based on an official’s mistaken belief that an employee had engaged in protected political activity, but Heffernan was decided after the 2015 events. No controlling authority or robust consensus had clearly established that principle at the relevant time.
Issue #3
Whether Groce’s criticism of the officers was protected speech and whether qualified immunity shielded the officers who responded with tear gas.
Holding
No. Groce’s claim could proceed because his verbal criticism was protected by clearly established First Amendment law, and the plaintiff-favorable facts did not establish probable cause or arguable probable cause.
Reasoning
Groce’s statement—“get the fuck out of my park”—was criticism of police officers, and First Amendment doctrine protects such criticism even when it includes profanity. Earlier Eighth Circuit precedent, particularly Peterson v. Kopp, clearly established that criticizing an officer and seeking identifying information are protected activities, consistent with the Supreme Court’s recognition that substantial verbal criticism and challenge of police is protected.
The officers argued that Groce acted aggressively and threateningly and therefore gave them arguable probable cause to act. But that account depended on viewing disputed facts in the officers’ favor. Under the district court’s plaintiff-favorable factual assumptions, video showed a calm scene, Groce was not armed or threatening, and the officers had identified no crime that he committed.
On an interlocutory qualified-immunity appeal, the court lacked jurisdiction to recast those factual assumptions. On the accepted facts, launching a tear-gas canister at Groce shortly after his protected criticism could constitute unconstitutional retaliation, and the officers were not entitled to qualified immunity.
Issue #4
Whether Groce produced sufficient evidence of each defendant’s personal involvement for § 1983 liability.
Holding
Yes as to the seven officers inside the BEAR, but no as to Lieutenant Dodge.
Reasoning
Section 1983 liability is personal, but a plaintiff need not identify the precise officer who inflicted the injury to survive summary judgment. The evidence permitted an inference that a tear-gas canister was launched from the BEAR, that seven named officers were inside, and that each had access to chemical munitions that could be deployed through the vehicle’s portholes by hand or launcher.
A jury could therefore find that each officer in the BEAR either participated in the decision to use tear gas or failed to intervene while another officer did so. That evidence was sufficient at the summary-judgment stage to allow Groce’s claim against those officers to proceed.
Lieutenant Dodge, by contrast, was in another vehicle in a different area when the canister was fired. His general instruction to use chemical munitions to disperse the crowd did not make him vicariously liable, and there was no evidence that he knew his otherwise lawful order was likely to cause a constitutional violation or that his supervision was inadequate.