The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SEAN STEARNS, )
)
Plaintiff, )
)
vs. ) Case No. 4:21-cv-662-HFS
)
CITY OF KANSAS CITY, MO, )
BOARD OF POLICE COMMISSIONERS )
OF KANSAS CITY, )
COMMISSIONER MARK TOLBERT, )
COMMISSIONER CATHY DEAN, )
COMMISSIONER NATHAN GARRETT, )
COMMISSIONER DON WAGNER, )
COMMISSIONER DAWN CRAMER, )
MAYOR QUINTON LUCAS )
(Board Member), DAVID KENNER )
(Board Member), RICHARD C. SMITH, )
Police Chief of Kansas City, Missouri )
Police Department, )
and )
TROOPER JEFFREY SPIRE, )
)
Defendants. )
MEMORANDUM AND ORDER
Summary judgment motions by defendant Kansas City Police Board (Doc. 87) and
defendant Highway Patrol Trooper Spire (Doc. 89) have been pending for an inordinate period
and will be rather succinctly ruled. Plaintiff Stearns has suffered a severe injury and important
questions are involved. Stearns lost an eye, purportedly after being struck by a projectile fired
by the trooper, late in a local protest on May 30, 2020, associated with the killing of George
Floyd. My ruling will grant the defendants’ motions based on the reasons and authorities
stated by them, but with additional brief explanation.
The Spire contention that his firing of a non-lethal but very dangerous projectile (a
40MM Riot CS Smoke 3-projectile weapon) was not the action that injured Stearns is quite
debatable but will be rejected as contested for summary judgment purposes.
I do accept defendants’ theory that current law requires that a Free Speech violation
requires proof that defendant was targeted in a retaliatory action, and that plaintiff has no
proof that this occurred—in fact he tacitly concedes that what defendants describe as crowd
control was what the trooper was attempting, if in an allegedly reckless or inept manner. The
only case on First Amendment retaliation directly cited and relied on by plaintiff is Green v. City
of St. Louis, 52 F4th 734 (8th Cir. 2022), which is quite consistent with the targeting
requirement. As the trial court explained, Green took shelter with others (where she could
hear officers “banging on the door and yelling”). When she moved on to her vehicle, “mocking
statements” were directed toward her. Officers passed her, but then took a U-turn and
dispersed tear gas. While that plaintiff was not alone in the retaliatory events, no cases are
cited by Stearns that support a claim that hostility toward a whole crowd of protestors will
suffice in a Free Speech retaliatory claim. Perhaps it should, but the cited cases do not go that
far. I do see some prospect of success for a right to assemble claim, as discussed below—but
that is not yet developed.
There is apparently no legal support for an unadorned excessive force claim under the
Fourteenth Amendment or the Fourth Amendment. But see, Mitchell v. Kirchmeier, 28 F.4th
888 (8th Cir.2022). The panel in Mitchell required a trial where, as claimed here, the plaintiff
lost an eye from projectiles shot by law enforcement officials.1 They apparently did so because
plaintiff was later arrested, supposedly giving him retroactive Fourth Amendment rights. Even
if an intent to arrest pre-dated the “non-lethal” shooting, I respectfully question the Fourth
Amendment rationale, which seems to have no realistic connection with the bean bag
shooting—although the result of the case is welcome. I would justify it legally as protecting
the First Amendment right to assemble. That right is of course not absolute, but subject to
reasonable limitations—but not, I agree with the plaintiff here, with “excessive force”. We
probably avoid the “retaliation” limitation by using a right to assemble approach. This
speculation would not justify denying summary judgment here, even if sound, because not
argued by plaintiff, and probably being too novel to escape qualified immunity.
It may be argued that the panel in Mitchell did in fact use the approach suggested when
they dealt with a claim for Monell liability of the county. They referred to plaintiff's allegation
that there was a "persistent pattern of unconstitutional conduct". 28 F.4th at 900-901. This
was a reference to deploying weapons such as bean bag guns "at protestors". The opinion
mentions an allegation that "'an explosive munition ...nearly severed a protestor's left
hand...'" This language cannot refer to a Fourth Amendment violation because there was no
seizure aspect of the incident--my explanation would be that it protects the First Amendment
right of assembly by forbidding the use of excessive force against groups of protestors. No
1 Another lost eye case involving missiles fired at protestors is Sanders v. Cuyahoga County, 2022 WL 17821347
(N.D. Ohio). There are doubtless more.
other rationale seems to give constitutional status to the alleged misconduct that impacted the
county in Mitchell.
The foregoing discussion relates to defendant Spire. Having ruled for the State trooper,
I am satisfied that summary judgment should be granted to the municipal defendant on
plaintiff’s abstract claims pertaining to policing. Having rejected all Federal claims, the State
law claims will be dismissed without prejudice.
Accordingly, the Board’s motion for summary judgment (Doc. 87) is GRANTED, and
Officer Spire’s motion for summary judgment (Doc. 89) is GRANTED. The Clerk of the Court is
directed to enter judgment in favor of defendants. 2
/s/ Howard F. Sachs
HOWARD F. SACHS
UNITED STATES DISTRICT JUDGE
Dated: October 5, 2023
Kansas City, Missouri
2 Although this result favors defendants, if other appellate courts support the portions of Mitchell that accept
constitutional protection of assembled protestors from force that is deemed to be excessive, without dealing with
further issues such as retaliation, arrest or custody, it seems that an important extension of constitutional law will
have occurred.