Jimmy Duane Weed v. Corporal T.R. Jenkins; Colonel Ronald K. Replogle; Colnel Sandra K. Karsten

Jimmy Duane Weed participated in a highway overpass protest. Due to traffic

safety concerns, state troopers told the protesters to disperse. Weed did not comply.

1The Honorable John M. Gerrard, United States District Judge for the District

of Nebraska, sitting by designation.

He was arrested. Weed sued, alleging that his arrest violated the First and Fourth

Amendments and that the statute authorizing the arrest is invalid. The district court2

granted summary judgment. Weed v. Jenkins, 2016 WL 4420985 (E.D. Mo. Aug. 18,

2016). Weed appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On Saturday, August 17, 2013, Weed and others held signs protesting the

President’s policies, from a pedestrian sidewalk on an overpass over Interstate 70 in

St. Charles, Missouri. Protesters faced the highway below, targeting motorists.

Traffic that day was more congested than usual. The highway’s left lane was

closed for construction. A festival taking place nearby was accessible by the next

exit. At that exit, there was construction for traffic leaving the highway. The traffic

approaching the protest was heavy and intermittently congested, backing up to the

next exit.

That day there were five accidents on the stretch of highway approaching the

protestors. One occurred before they arrived. A Missouri Department of

Transportation worker told the investigating officer that the protesters were causing

a traffic safety hazard. Investigating the second accident, a state trooper “observed

drivers making evasive maneuvers and honking their horns in response to protesters

standing on [the] overpass above.” The driver in the third accident told the

investigating trooper “he was distracted by protesters above on the overpass, and that

the crash would not have occurred if the protesters had not been there.” A driver and

passenger in the fourth accident said that “the crash occurred because too many

people were looking up at the protesters and not paying attention to the road.” The

The Honorable Ronnie L. White, United 2 States District Judge for the Eastern

District of Missouri.

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trooper investigating that accident “was almost struck by a car that swerved to avoid

hitting another car” and “observed numerous vehicles change lanes when it was

unsafe to do so, drivers slam on their brakes, and vehicles run off the road into the

grass to avoid collisions.” The driver and passenger of the car hit in the fifth accident

also said the protesters were distracting.

Corporal T.R. Jenkins—the highest ranking officer from the Missouri State

Highway Patrol (MSHP) that day—was responsible to decide whether to ask the

protesters to leave. The troopers who investigated the accidents told Jenkins that the

protesters were creating a traffic safety hazard, causing or contributing to the

accidents. After the third accident, Jenkins was not personally convinced that the

protesters were causing or contributing to the accidents and decided to take a “wait

and see” approach. Jenkins went to assist at the scene of the fifth accident. He noted

that traffic was heavier than earlier that day. The trooper who had investigated the

fourth and fifth accidents told him she had observed unsafe driving, had almost been

hit, and that the motorists in the accidents thought the protesters were the cause.

Jenkins had also been told that “numerous persons had called the MSHP and reported

the protesters were causing a distraction.”

Jenkins determined “that the protesters were creating a traffic hazard and

causing or contributing to traffic accidents.” He decided they should be removed

from the overpass. After the St. Charles police refused to remove them, Jenkins sent

MSHP officers to the overpass. When Jenkins arrived, most of the protesters were

already dispersing, but Weed and another protester were arguing with two other

officers. The officers explained several times why they were asking them to leave the

overpass and said they could return another time. Weed maintained he had a right to

be on the overpass and believed that because he had only been “asked” to leave, he

had no obligation to do so. Jenkins asked Weed whether he was going to leave and

said that if he did not, he would be arrested. Weed refused to leave. Jenkins arrested

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him for willfully opposing a member of the highway patrol in violation of § 43.170

RSMo.

A week later, Weed returned to the same overpass for another protest. No one

was arrested. He has since attended many other overpass protests.

Weed sued Jenkins and the MSHP Superintendent, seeking damages as well

as declaratory and injunctive relief. The district court granted summary judgment

against Weed. He appeals.

II.

Both constitutional claims and a grant of summary judgment are reviewed de

novo. Walker v. Hartford Life & Accident Ins. Co., 831 F.3d 968, 973 (8th Cir.

2016); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en

banc). Summary judgment is proper if “there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

A.

Weed argues that Jenkins’s order to disperse violated the First Amendment.

Weed says that the order also violated due process because it was void for vagueness.

This court need not reach the merits of those issues due to the doctrine of qualified

immunity.

Qualified immunity “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). “In

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determining whether a right is clearly established, we ask ‘whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.’”

Frye v. Kansas City Missouri Police Department, 375 F.3d 785, 789 (8th Cir. 2004),

quoting Saucier v. Katz, 533 U.S. 194, 201 (2001).

Weed argues that Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012), put

Jenkins on notice that his order was clearly unlawful. Weed’s premise is that the

order was issued under § 43.170 RSMo. That law prohibits “willfully resist[ing] or

oppos[ing] a member of the patrol in the proper discharge of his duties.” § 43.170

RSMo.

But § 43.170 RSMo applies only after an individual fails to comply with a

trooper’s “proper” order—that is, one issued under another law. Here, that other law

is a local ordinance. St. Charles ordinance § 340.020 makes it “unlawful for any

person to obstruct in any manner any . . . public highway . . . by hindering or

impeding or tending to hinder or impede the free and uninterrupted passage of

vehicles.” See Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (recognizing this

court may take judicial notice of public records); Newcomb v. Brennan, 558 F.2d

825, 829 (7th Cir.1977) (“[M]atters of public record such as state statutes, city

charters, and city ordinances fall within the category of ‘common knowledge’ and are

therefore proper subjects for judicial notice.”).

Although Stahl involves an ordinance like the St. Charles ordinance, Stahl

addresses a constitutional challenge to the ordinance itself. Stahl, 687 F.3d at 1040

n.1. This case revolves around Jenkins’s conduct, not a constitutional challenge to

St. Charles ordinance § 340.020.

Jenkins’s conduct matches the officer’s conduct in the Frye case. See 375 F.3d

at 787-90; see also Stahl, 687 F.3d at 1040 n.1 (noting Frye is consistent with Stahl).

There, this court holds that officers arresting protesters who refuse to stop displaying

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graphic posters—causing traffic obstruction—impose a reasonable, content-neutral

restriction and are entitled to qualified immunity. Frye, 375 F.3d at 787-90, 792.

“[T]he Supreme Court ‘has regularly rejected the assertion that people who wish to

propagandize protests or views have a constitutional right to do so whenever and

however and wherever they please.’” Id. at 790, quoting United States v. Grace, 461

U.S. 171, 177–78 (1983) (internal quotation marks omitted). “[A]n officer on duty

in the field is entitled to make a reasonable interpretation of the law he is obligated

to enforce.” Id. at 789, quoting Habiger v. City of Fargo, 80 F.3d 289, 296 (8th Cir.

1996).

Jenkins could reasonably interpret St. Charles ordinance § 340.020 to forbid

overpass protests that hinder or impede vehicular traffic. The ordinance authorized

Jenkins to issue a proper order to disperse. The doctrine of qualified immunity

protects Jenkins from First Amendment damages because he had no reason to know,

based on preexisting law, that his order was unlawful.

B.

Invoking the Fourth Amendment, Weed also seeks damages for his arrest. But:

“In a claim for damages, officers are ‘entitled to qualified immunity if they arrest a

suspect under the mistaken belief that they have probable cause to do so, provided

that the mistake is objectively reasonable’—that is, officers are not liable if they had

‘arguable probable cause’ to make the arrest.” Bernini v. City of St. Paul, 665 F.3d

997, 1003 (8th Cir. 2012), quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir.

2008).

Weed resisted the order to disperse—an order that a reasonable officer could

consider proper under preexisting law. Section 43.170 RSMo prohibits resisting a

proper order. Jenkins had “arguable probable cause” to arrest Weed under § 43.170

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RSMo. Qualified immunity protects Jenkins from the Fourth Amendment damages

claim.3

C.

Weed seeks a declaratory judgment that § 43.170 RSMo facially violates the

First Amendment as overbroad, with an injunction on its enforcement. “[T]he

overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise

of First Amendment rights if the impermissible applications of the law are substantial

when ‘judged in relation to the statute’s plainly legitimate sweep.’” City of Chicago

v. Morales, 527 U.S. 41, 52 (1999), quoting Broadrick v. Oklahoma, 413 U.S. 601,

615 (1973).

In McDermott v. Royal, 613 F.3d 1192, 1193 (8th Cir. 2010), the plaintiff

brought an overbreadth challenge to an ordinance that: “No person shall resist or

obstruct a city officer making an arrest . . . or executing or attempting to execute any

other duty imposed upon him by law.” This court holds that the ordinance was not

overbroad because “the terms . . . ‘obstruct’ and ‘resist’ . . . cover only physical acts

or fighting words and do not give officers unfettered discretion to make arrests for

mere words that annoy them.” Id. at 1194.

The “resist or obstruct” terms in McDermott parallel the “resists or opposes”

terms in § 43.170 RSMo. “It is a cardinal rule in our circuit that one panel is bound

by the decision of a prior panel.” Mader v. United States, 654 F.3d 794, 800 (8th Cir.

2011) (en banc). Section 43.170 RSMo is not overbroad.

3 To the extent Weed seeks damages against the (then) MSHP superintendent,

Colonel Replogle, his claim fails because the colonel was not personally involved in

the incident. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

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D.

Weed argues that § 43.170 RSMo violates the First Amendment as applied to

him. On the facts here, any restraint on Weed’s speech resulted from St. Charles

ordinance § 340.020—not from § 43.170 RSMo, the statute authorizing the arrest.

Therefore, § 43.170 RSMo is not unconstitutional as applied.

E.

Weed claims that § 43.170 RSMo, on its face, violates due process by being

vague. “Under the void-for-vagueness doctrine, a law is unconstitutional if it ‘fails

to provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory enforcement.’”

Musser v. Mapes, 718 F.3d 996, 1000 (8th Cir. 2013), quoting United States v.

Williams, 553 U.S. 285, 304 (2008).

In Cameron v. Johnson, 390 U.S. 611, 615-16 (1968), the plaintiffs brought a

facial vagueness challenge to a statute forbidding “picketing . . . in such a manner as

to obstruct or unreasonably interfere with free ingress or egress to and from . . . any

county courthouses . . . .” The Supreme Court explains that the terms “obstruct” and

“unreasonably interfere” was not unconstitutionally vague because they “plainly

require no guessing at their meaning” and are “words of common understanding.”

Id. at 616 (internal quotation marks and alterations omitted).

Like “obstruct or unreasonably interfere,” the terms “willfully resists or

opposes” in § 43.170 RSMo are “words of common understanding.” Section 43.170

RSMo is not unconstitutionally vague.

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F.

Weed sought an injunction against a “policy” of the highway patrol to remove

protestors from overpasses. He also sought a declaratory judgment that the policy

was unconstitutional. But as the district court explained, “Weed presented no facts

in support of his contention that [the MSHP Superintendent] has a policy of removing

highway protestors.”

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The judgment is affirmed.