Kevin Chestnut v. Officer Dawain Wallace, St.Louis City Arresting Police Officer, in his individual capacity Officer Tiffany Burns, n/k/a Tiffany Porter; St. Louis City Arresting Officer, in her individual capacity; Officer John Doe, St. Louis City Arresting Police Officer, in his individual capacity; City of St. Louis, Missouri; Justin Ludwig, St. Louis City Police Officer, in his individual capacity

St. Louis, MO - Interlocutory Appeal lawyer represented defendant with an interlocutory appeal from the denial of qualified immunity to a police officer who stopped, frisked, and handcuffed a person who had been watching another police officer perform traffic stops.

According to plaintiff Kevin Chestnut, one evening around dusk he paused his

jog in a St. Louis park to watch St. Louis Metropolitan Police Department Officer

Leviya Grahamperforma traffic stop. He watched the stop for five or ten minutes and

then resumed his jog. Shortly thereafter, Chestnut stopped again to observe Graham

perform another traffic stop. During this stop, Chestnut stood in a grassy area

between the jogging trail and the sidewalk and leaned against a tree. He testified that

he stood thirty to forty feet away and across the street from where Graham was

conducting the stop. He asserts that he was watching the stops out of curiosity since

there had "been a lot of difficulty in citizen/police interaction" as of late. The parties

point out that this specific park had been the site of testy exchanges between police

and citizens.

Chestnut caught Graham's attention. She radioed dispatch for assistance,

reporting that a suspicious person had been following her to her car stops. She

described Chestnut as a white male in a yellow shirt who was leaning against a tree

across the street from her. Officer Dawain Wallace responded to the call and arrived

on scene. From his police car, he saw someone matching Chestnut's description and

shined his spotlight on him. Wallace testified at one point that either Graham or the

dispatcher had said that Chestnut was "hiding in the treeline" and "kind of peeking

and lurking around a tree." Chestnut, on the other hand, testified that he purposely

1The Honorable Patricia L. Cohen, United States Magistrate Judge for the

Eastern District of Missouri, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c).

-2-

stood in a location where the headlights on Graham's car illuminated him. He said that

he intentionally made himself plainly visible, that he was standing still, and that he

was not interfering.

After shining his spotlight, Wallace got out of his car, approached Chestnut,

and asked himfor some form of identification. Chestnut had none on him,so Wallace

asked him for his name, address, and social security number. Wallace maintains that

he requested this information so he could determine whether Chestnut had any

outstanding warrants. Chestnut provided his name and, he says, his birthday. But he

agreed to provide only the last four digits of his social security number. At that point,

Wallace frisked Chestnut for weapons but found none, yet he directed other officers

who had arrived on scene to put Chestnut in handcuffs. Chestnut then provided his

full social security number to Wallace and asked to speak to one of Wallace's

supervisors. Wallace used the information to perform a warrants check, and he

learned thatChestnut had no outstanding warrants.After Wallace'ssupervisor arrived

and spoke with Chestnut, he directed that the handcuffs be removed and permitted

Chestnut to leave. Chestnut estimated that the entire encounter with Wallace lasted

twenty minutes.

Chestnut sued Wallace, and others not relevant to this appeal, for damages

under 42 U.S.C. § 1983, alleging that Wallace detained, arrested, frisked, and

handcuffed him without reasonable suspicion or probable cause to believe he had

engaged in or was about to engage in unlawful conduct or that he was armed and

dangerous. When Wallace moved for summary judgment on the ground of qualified

immunity, a defense that protects an individual defendant from suit when his conduct

does not violate clearly established constitutional rights, see White v. Pauly, 137 S.

Ct. 548, 551 (2017) (per curiam), the district court denied the motion. This appeal

followed.

-3-

Though we ordinarily lack jurisdiction to review the denial of a motion for

summary judgment immediately because such a ruling is not a final decision, we may

entertain an interlocutory appeal from an order denying qualified immunity to the

extent that it raises "abstract issues of law." Jenkins v. Univ. of Minn., 838 F.3d 938,

943–44 (8th Cir. 2016). We accept as true the facts that the district court found and

likely assumed, but for factual disputesthat the district court did not resolve, we view

the record in Chestnut's favor. See Roberts v. City of Omaha, 723 F.3d 966, 972 (8th

Cir. 2013). We review the district court's decision de novo. Nord v. Walsh Cty., 757

F.3d 734, 738 (8th Cir. 2014).

Before reaching the heart of this appeal, we briefly address Chestnut's

contention that he was arrested, rather than merely detained. The distinction matters

under the Fourth Amendment. An arrest is valid only if there is probable cause to

believe that a suspect has committed or is about to commit a crime, whereas a brief,

investigatory detention can be based on only a reasonable suspicion that criminal

activity is afoot. See Waters v. Madson, 921 F.3d 725, 736 (8th Cir. 2019). A

detention can become an arrest if it "lasts for an unreasonably long time or if officers

use unreasonable force." Id. at 737. Though the line between the two can be hazy, we

think our precedent squarely places Chestnut's seizure on the detention side of the

line. The Waters case involved a twenty-minute interaction that was arguably more

intrusive than the one here (the suspect was placed in a police car for twenty minutes

while handcuffed), and yet we held that the suspect had only been detained. Id. at

736–37. We see no reason why Waters does not control, and so we conclude that

Chestnut's detention did not become an arrest.

To detain someone temporarily, officers need only reasonable suspicion that

criminal activity is afoot based on the attendant circumstances. Id. at 736. The inquiry

deals with probabilities, not hard certainties, see United States v. Cortez, 449 U.S.

411, 418 (1981), and it need not rule out innocent conduct. Navarette v. California,

-4-

572 U.S. 393, 403 (2014). Reasonable suspicion is based on commonsense judgments

about human behavior. Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

In his brief, Wallace maintains that the law was not clearly established when

he detainedChestnut that he violated the constitution "by conducting an investigatory

stop and briefly handcuffing a suspect with no identification after he follows a female

police officer, seemingly obscures himself in a dark area of a public park after

nightfall to watch her, and then fails to cooperate with the officer's investigation by

refusing to provide his social security number." We have some difficulties with

Wallace's legal argument and with his description of the circumstances.

First, Chestnut's refusal to supply his full social security number to a police

officer during a consensual encounter should not have contributed to Wallace's

reasonable suspicions. If "a person's decision during a consensual police encounter

to ignore the police and go about his business" cannot be considered in the

reasonable-suspicion calculus, see United States v. Sykes, 914 F.3d 615, 618 (8th Cir.

2019), then a person's refusal to provide only some of the requested information

cannot be either. It would make no sense to require an officer to allow someone who

provides no information to walk away but then to permit an officer to detain someone

who gives him only partial information. And we do not believe that the encounter

became non-consensual when Wallace asked Chestnut for identifying information.

As the Supreme Court has explained, "interrogation relating to one's identity or a

request for identification by the police does not, by itself, constitute a Fourth

Amendment seizure," so "a police officer is free to ask a person for identification

without implicating the Fourth Amendment." See Hiibel v. Sixth Jud. Dist. Ct., 542

U.S. 177, 185 (2004).

Second, it is disputed whether Chestnut obscured himself in a dark area of the

park to watch Graham. Chestnut says he purposely remained visible and in the open,

illuminated by Graham's headlights. We take the facts in a light most favorable to

-5-

Chestnut, see Roberts, 723 F.3d at 972, and to the extent Wallace's argument is

premised on this factual dispute, we would lack jurisdiction over his appeal. See

Thompson v. Dill, 930 F.3d 1008, 1012 (8th Cir. 2019). The dissent seeks to justify

the seizure because Wallace could reasonably suspect that Chestnut was intent on

criminal conduct since "individuals who are merely interested in police conduct

generallymake their presence more apparent."ButChestnutsays he was apparent and

at this stage we must take him at his word. The dissent opines that Chestnut's

description of where he was standing merely reflected his "subjective intent." With

respect, we disagree. Chestnut testified to physical facts, not his intent: He described

where he was standing and stated he was visible. He also stated that there was still

light outside when he was watching Graham, so we cannot say at this point, as the

dissent does, that Chestnut "was following her into the night as she made her stops."

Simply put, there are issues of fact here.

It appears Wallace may also be challenging the denial of qualified immunity

even when the facts are properly viewed in Chestnut'sfavor—a matter over which we

do have jurisdiction. But we agree with the district court that if we view the facts that

way,Wallace violatedChestnut's clearly established constitutionalrights. See Walker

v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005). In Walker, attorney John Walker

observed an encounter between police and some young men. We said that "Walker

stood with his arms folded some forty to fifty feet from the conversation between the

police and the young men" and did not speak to anyone. When officers asked him

what he was doing, he responded that he was watching the town's "finest in action."

After further conversation, Walker identified himself as an attorney and offered his

driver's license to one of the officers, but the officer instead handcuffed Walker, put

him in the back of a hot police car for twenty minutes, and drove him to the police

station. Walker was charged with obstructing governmental operations. The purely

legal question was whether the officer "had arguable probable cause to arrest Walker

for obstructing governmental operations becauseWalker distracted officers who were

-6-

conducting a traffic stop by silently watching the encounter from across the street

with his arms folded in a disapproving manner." Id. at 992.

In ruling for Walker, we explained that "[i]n a democracy, public officials have

no general privilege to avoid publicity and embarrassment by preventing public

scrutiny of their actions." We noted that "public police activity invariably draws a

crowd of interested but benign on-lookers," and we thought it "preposterous" that a

"silent, non-interfering on-looker" could have distracted the officers from safely

completing the traffic stop. We 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," so the district court properly had rejected the officer's request for qualified

immunity. Id. at 992–93.

Taking the facts in Chestnut's favor, we think Walker establishes that Wallace

violated Chestnut's clearly established right to watch police-citizen interactions at a

distance and without interfering. The dissentsays our definition of the right is defined

too abstractly, at too high a level of generality. We respectfully disagree. We think

we have correctly characterized the principle acted on in Walker, and thus the right

in question, and we conclude that Chestnut has carried his burden to show that

Walker clearly establishes such a right.

Wallace tries to distinguish Walker on several grounds, but we find none of

them persuasive. He maintains that Walker involved an arrest, whereas Chestnut was

only detained. But the same facts that led us to conclude that it was clearly unlawful

to arrest Walker lead us to conclude it was likewise clearly unlawful for Wallace to

detain Chestnut; in both cases, no reasonable officer could conclude that a citizen's

passive observation of a police-citizen interaction from a distance was criminal. We

think it is legally irrelevant that Chestnut did not undergo similar post-seizure

experiences as Walker, such as being placed in a hot police car, taken to the police

-7-

station, or charged with a crime: This case is about the facts that existed when

Chestnut was seized. Nor do we place any weight on the fact that Walker provided

identification whenChestnut did not, for the reasons already stated.In short, we think

Walker puts this constitutional question beyond debate, see White, 137 S. Ct. at 551,

and we can'tsee how applying Walker meansthat we are requiring police officers "to

parse fine distinctions between statutory and constitutional law in split-second

decisions," as the dissent maintains. Respectfully, it is the distinctions that Wallace

invites us to draw between our case and Walker that are too fine and irrelevant.

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. See, e.g., Fields v. City of

Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017). Four circuits had so decided by

the time of the eventsin question here. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 595

(7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82–83 (1st Cir. 2011); Smith v. City of

Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d

436, 439 (9th Cir. 1995). 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. Our

circuit in particular has been quite forthright in upholding the right of citizens to

engage with officers while they perform their duties. For example, in Hoyland v.

McMenomy, we held that officers did not have qualified immunity to arrest a man

who had watched officers arrest his wife and even shouted at them. 869 F.3d 644,

654–55 (8th Cir. 2017). We acknowledged that the man "was shouting criticisms at

the officers" while they tried to effect an arrest, but we adverted to the principle from

Walker that public officials have no privilege to avoid public scrutiny and criticism

of their actions. Id. And we did so despite "[a]ny fear of danger the officers felt due

to Hoyland's presence." Id. at 654. In Thurairajah v. City of Fort Smith, we affirmed

the denial of qualified immunity against an officer who arrested a man who drove by

-8-

the officer while the officer performed a traffic stop and shouted an obscenity. 925

F.3d 979, 983–84 (8th Cir. 2019). Surely 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.

The dissent explicitly agrees with our characterization of these cases, but it

argues "that factual distinctions matter greatly in delimiting the right." We agree. But

it supports its argument with a case, Turner v. Lieutenant Driver, 848 F.3d 678 (5th

Cir. 2017), that is distinguishable. In that case, a man recorded the exterior of a police

station. The facts do not indicate that he recorded any police-citizen interactions or

any other public police activity. The case therefore presents a much different question

from ours, though we point out that that court, like every other circuit court that has

considered the question, held that there was a constitutional right to record police

activity. See id. at 688.

Contrary to the dissent's suggestion, we do not hold that Wallace was

prohibited from investigating Graham's concerns; he could certainly have asked

Graham for more details, kept a close watch on Chestnut, or approached and spoken

with him about his presence in the park. We merely hold that it was clearly

established that he could not detain him without more indication of wrongdoing. And

since Wallace could not have reasonably believed thatChestnut was engaged or about

to engage in criminal behavior, we think that it was also beyond debate that Wallace

should not have believed that Chestnut was armed and dangerous, which would have

justified himbeing frisked and handcuffed. See El-Ghazzawy v. Berthiaume, 636 F.3d

452, 457 (8th Cir. 2011). By all accounts, Chestnut was calm during the incident and

did not behave erratically, nor did Wallace conduct even a basic investigation into the

reasons for Chestnut's observations before frisking and handcuffing him. Id. at

457–58.

-9-

We think that officers should generally be allowed to believe the information

that they receive from or through a dispatcher, even if it later turns out that the facts

asrelayed are disputed or even untrue, and that that information alone can sometimes

justify a detention. See Feathers v. Aey, 319 F.3d 843, 851 (6th Cir. 2003). But

Wallace'sstrategy on appeal wasto assert that Chestnut waslurking in the trees(even

though Chestnut says he was not), and argue that Wallace could therefore reasonably

suspect Chestnut had committed or was about to commit a crime. The dissent

identifies three passing statements in Wallace's briefs that might suggest he was also

raising the argument that Wallace could simply rely on the information he received

through dispatch to detain Chestnut, but when those statements are put in context, it's

hardly clear that Wallace was making this point. The first statement was merely a

factual recitation unaccompanied by legal argument. The second was offered to

demonstrate that Wallace was not acting on a mere "hunch"; it was just a comment

supporting Wallace's narrative that Chestnut was indeed lurking in the trees, not an

independent legal discussion of the significance of information received through

dispatch. And the third comment, which appeared in a reply brief footnote, merely

made the point that this case did not involve anonymous tipsters. When the court

asked Wallace's counsel at oral argument whether she was pressing the argument

about relying on information learned through dispatch, Wallace's counsel agreed that

the court was "correct that that argument was not addressed to a significant extent in

the briefing." Oral Argument at 2:15–2:47. That was an understatement. There was

no discussion of the issue at all and not a single citation to authorities. As our court

recently said, "we regularly decline to consider cursory or summary arguments that

are unsupported by citations to legal authorities." Heuton v. Ford Motor Co., 930

F.3d 1015, 1023 (8th Cir. 2019). We should do so here.

Even if we assume that Wallace sufficiently raised this contention, we would

decline to hold that he had constitutionally sufficientreasonsto seize Chestnut. While

Wallace testified that he learned through dispatch that Chestnut was "hiding,"

"lurking," or "peeking" around trees, assertions that he repeats liberally in his briefs,

-10-

the audio recording of the radio conversations undermines his testimony. The only

relevant information relayed to Wallace was that Graham said Chestnut was

"suspicious" and was following her as she performed traffic stops. A vague,

conclusory statement that a person is suspicious is insufficiently specific to support

his detention by the police, and merely observing police officers at work cannot give

rise to a reasonable inference that criminal mischief is afoot. Graham did say that

Chestnut was "leaning against a tree," but this seems rather to indicate a casual

observer, not a threatening presence. There is no mention of "hiding" or "lurking" or

"peeking."

We also respectfully disagree with the dissent that "Chestnut's location in a

neighborhood where police had recently faced violent attacksreinforced the officers'

concerns." Wallace merely noted in his opening brief that these police-citizen

exchanges had occurred; he did not argue until his reply brief that they were relevant

to his reasonable suspicion. "[W]e generally do not consider arguments made for the

first time in a reply brief." MBI Energy Servs. v. Hoch, 929 F.3d 506, 512 (8th Cir.

2019). In any case, those interactions could make only the most marginal contribution

to justifying what Wallace did. They occurred three months earlier than the events

giving rise to this case, no injuries occurred, and their circumstances were

fundamentally different: The exchangesinvolved large-scale civil unrest, not a single

citizen simply observing the police at work. They cannot tip the balance in Wallace's

favor.

We observe in closing that the fact-finder at trial may determine that Chestnut

wasindeed lurking in the woods, or at least otherwise disagree with Chestnut'stelling

of the night's events, in which case Wallace's detaining, handcuffing, and frisking

Chestnut may have been justified. But at this stage, we must view the facts in

Chestnut's favor. And though we agree with the dissent that "qualified immunity is

important to society as a whole," so is the people's ability to monitor police activities

to ensure that their duties are carried out responsibly.

Affirmed.