Ray Scott v. Tobias J. Tempelmeyer

United States Court of Appeals

For the Eighth Circuit

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No. 16-2404

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Ray Scott,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Tobias J. Tempelmeyer, City Attorney,

lllllllllllllllllllll Defendant - Appellant.

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Appeal from United States District Court

for the District of Nebraska - Lincoln

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Submitted: November 16, 2016

Filed: August 16, 2017

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Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

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COLLOTON, Circuit Judge.

Ray Scott sued the City of Beatrice, Nebraska, Mayor Dennis Schuster, and

City Attorney Tobias Tempelmeyer, claiming violations of his First and Fourth

Amendment rights. The district court granted summary judgment for the City and

Schuster and partial summary judgment for Tempelmeyer on Scott’s Fourth

Amendment claim. The court denied Tempelmeyer qualified immunity on Scott’s

First Amendment claim alleging that Tempelmeyer retaliated against Scott for

exercising his right to free speech. Tempelmeyer appeals the denial of qualified

immunity. We conclude that the First Amendment right asserted by Scott—a right

to be free from retaliatory regulatory enforcement that is otherwise supported by

probable cause—was not clearly established. We therefore reverse the district court’s

order denying in part Tempelmeyer’s motion for summary judgment based on

qualified immunity.

I.

Beginning in 2005, Scott was the lessor and operator of the Villa Motel, a two-

building motel located in Beatrice, Nebraska, and owned by Wayne Schulz. During

his tenure, Scott engaged in a long-running dispute with the City and Tempelmeyer

regarding the Motel’s failure to pay lodging taxes. In December 2009, Tempelmeyer

warned Scott and Schulz by letter that if they did not remit the unpaid lodging taxes

by January 8, 2010, the City would take legal action to collect the taxes or prosecute

them for zoning violations.

In November 2010, Tempelmeyer received photographs of the Motel’s interior

and basement from the lessee of an adjacent commercial building. After reviewing

the photographs, Tempelmeyer directed Dennis Mitchell, the chief building inspector

for the City, to inspect the property for safety issues with Sean Lindgren, the deputy

state fire marshal. Mitchell obtained a search warrant from a local judge and

inspected the Motel with Lindgren and another city employee.

Lindgren noted several fire code violations and safety hazards; he concluded

that the Motel was unfit for occupancy. Lindgren ordered that the Motel correct the

deficiencies, or submit and secure approval of a plan of correction, before the Motel

could be reoccupied. After the inspection, city building inspector Mitchell sent Scott

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and Schulz a letter at Tempelmeyer’s direction, identifying the “fire and life safety

issues” found during the inspection.

Meanwhile, Mitchell told Tempelmeyer that he did not think the issues were

life-threatening or that the Motel should be condemned—i.e., adjudged unfit for

occupancy. According to Mitchell, he had never been ordered to condemn a property

after he concluded that it did not present life-threatening issues. Tempelmeyer

nonetheless told Mitchell to condemn the Motel. The City Code of Beatrice

incorporates the International Property Maintenance Code, which provides that an

official may give notice of condemnation if he “determines” or “has grounds to

believe” that a violation has occurred. Int’l Prop. Maint. Code § 107.1 (Int’l Code

Council 2003).

Scott sued the City of Beatrice, Mayor Schuster, and City Attorney

Tempelmeyer under 42 U.S.C. § 1983, asserting that the defendants violated his

rights under the First and Fourth Amendments, as incorporated through the

Fourteenth Amendment. He claimed that the inspection and condemnation were

conducted in retaliation for his disputing whether a certain tax was applicable to his

business, in violation of the First Amendment. He further alleged the inspection was

conducted without a warrant or his permission, contrary to the Fourth Amendment.

The district court granted summary judgment for the City and Mayor Schuster.

The court also granted summary judgment for Tempelmeyer on the Fourth

Amendment claim, but denied his motion on the First Amendment retaliation claim.

The court determined that there was evidence that Tempelmeyer retaliated against

Scott for exercising his First Amendment rights by ordering an inspection and

condemnation of the Motel. Tempelmeyer appeals the district court’s denial of

qualified immunity.

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We have jurisdiction to review an interlocutory appeal of the denial of qualified

immunity under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 528-

30 (1985). Qualified immunity shields a government official from suit when his

conduct “does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Tempelmeyer is entitled to qualified immunity unless the right asserted

by Scott was established “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). Immunity protects “all but the plainly incompetent or those who knowingly

violate the law.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). We review the district

court’s ruling on qualified immunity de novo.

II.

Scott argues that Tempelmeyer ordered Mitchell to inspect the Villa Motel and

to condemn the property in retaliation for Scott’s speech about the tax dispute

between the City and the Motel. It is settled at a high level of generality that the First

Amendment prohibits government officials from retaliating against a citizen for

exercising his right of free speech. Hartman v. Moore, 547 U.S. 250, 256 (2006).

But to establish a First Amendment retaliation claim in a particular case, a plaintiff

must show (1) that he engaged in a protected activity, (2) that the defendant’s actions

caused an injury to the plaintiffs that would chill a person of ordinary firmness from

continuing to engage in the activity, and (3) that a causal connection exists between

the retaliatory animus and the injury. Bernini v. City of St. Paul, 665 F.3d 997, 1007

(8th Cir. 2012).

In Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007), this court crafted

a causation standard for the third element in a case involving enforcement of county

environmental regulations. The plaintiffs in Osborne sought relief from valid adverse

regulatory action on the ground that it was unconstitutional retaliation for speech

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protected by the First Amendment. The lawsuit claimed that a county in Minnesota

and four county officials retaliated against the plaintiffs for criticizing the county’s

lax enforcement of regulations. This court said that the plaintiffs

must make the same showing that is required to establish a claim of

selective prosecution—“that he has been singled out for prosecution

while others similarly situated have not been prosecuted for conduct

similar to that for which he was prosecuted [and] that the government’s

discriminatory selection of him for prosecution was based upon . . . his

exercise of his first amendment right to free speech.”

Id. (alteration in original) (quoting United States v. Catlett, 584 F.2d 864, 866 (8th

Cir. 1978)).

Shortly after Osborne, however, this court in Williams v. City of Carl Junction,

480 F.3d 871 (8th Cir. 2007), elaborated on the causation element of a First

Amendment retaliation claim. The court first observed that Hartman v. Moore held,

in a case brought against investigators alleging retaliatory criminal prosecution, that

a plaintiff must show the absence of probable cause supporting the prosecutor’s

action. 547 U.S. at 263-66. Hartman contrasted “the requisite causation in ordinary

retaliation claims, where the government agent allegedly harboring the animus is also

the individual allegedly taking the adverse action,” id. at 259, with causation in a case

like Hartman, where the plaintiff alleged that investigators with retaliatory animus

induced a prosecutor to bring charges against the plaintiff. The Court concluded that

where the causal connection required was “between the retaliatory animus of one

person and the action of another,” id. at 262, an absence of probable cause for

prosecution was required “to bridge the gap between the nonprosecuting government

agent’s motive and the prosecutor’s action.” Id. at 263.

Williams involved a claim that a mayor harbored retaliatory animus against the

plaintiff citizen. The plaintiff alleged that the mayor induced the police chief and the

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city administrator to issue (or to cause other officers to issue) citations to the plaintiff

for violating various municipal ordinances. Some of this activity was regulatory

enforcement: citations for violating set-back regulations, for improperly storing

construction materials, and for overgrown grass and weeds. 480 F.3d at 874. This

court concluded that even where intervening actions by a prosecutor were not present,

the rule of Hartman should apply. The court reasoned that because the plaintiff

claimed that an actor with retaliatory animus (the mayor) induced other actors (police

or code-enforcement officers) to take adverse action against the plaintiff, the absence

of probable cause would bridge the gap between the two actors and show that

retaliatory motive caused the action. Id. at 876. Conversely, said the court, “the

presence of probable cause would necessarily eliminate the possibility that a causal

link between the Mayor’s retaliatory animus and the officers’ ‘prosecution’ could be

established.” Id. at 876-77.

Williams was later criticized by one judge of this court for extending Hartman

to “an ordinary retaliation claim, i.e. ‘where the government agent allegedly harboring

the animus is also the individual allegedly taking the adverse action.’” Cross v.

Mokwa, 547 F.3d 890, 904 (8th Cir. 2008) (Bye, J., concurring in part, dissenting in

part, and concurring in the judgment in part) (quoting Hartman, 547 U.S. at 259). It

is debatable whether Williams extended Hartman quite that far: Williams appeared

to rely on the separation between the alleged retaliatory animus of the mayor and the

adverse action taken by police or code-enforcement officers. 480 F.3d at 876. Yet

this court in Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir. 2000), Cross, 547

F.3d at 896-97 (majority opinion), id. at 904 (opinion of Bye, J.), McCabe v. Parker,

608 F.3d 1068, 1075 (8th Cir. 2010), and Peterson v. Kopp, 754 F.3d 594, 602 (8th

Cir. 2014), required an absence of probable cause to prove a First Amendment

retaliation claim against a law enforcement officer who allegedly both harbored

animus and made an arrest based on the animus. In Reichle v. Howards, 566 U.S. 658

(2012), the Supreme Court—relying in part on this court’s decision in McCabe—held

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that there was no clearly established right to be free from a retaliatory arrest that is

otherwise supported by probable cause. Id. at 664-70.

In light of all of this precedent, Scott cannot show a clearly established right

to be free from regulatory enforcement that is otherwise supported by probable cause.

Scott’s claim faces a greater hurdle than those of the plaintiffs in the single-actor

arrest cases of Reichle, McCabe, and Cross. Here, Scott alleges that Tempelmeyer

induced or directed Mitchell, the building inspector, to enforce the code against the

Motel. The case thus presents the scenario addressed in Williams, where the actor

with alleged retaliatory animus (Tempelmeyer) is different from the actor taking the

alleged adverse regulatory action (Mitchell). Osborne addressed a claim of

retaliatory enforcement of regulations without mentioning the absence of probable

cause. But it was reasonably debatable in November 2010 that the reasoning of

Williams would apply to a claim like Scott’s that combined the animus of one actor

and the injurious regulatory action of another. It was also not unreasonable to think

that the reasoning of subsequent single-actor law enforcement cases such as Cross

and McCabe would apply to a regulatory enforcement case. It was therefore not

clearly established at the time of the inspection and condemnation that Scott had a

right under the First Amendment to be free from a regulatory enforcement

action—directed by Tempelmeyer and implemented by Mitchell—that was supported

by probable cause.

Mitchell’s condemnation of the Motel was supported by probable cause. Under

the Code, a structure must be condemned when it is “found by the code official to be

unsafe, or when [it] is found unfit for human occupancy, or is found unlawful.” Int’l

Prop. Maint. Code § 108.1. A structure is “unfit for human occupancy” when, among

other things, it is insanitary, contains filth and contamination, or lacks maintenance.

Id. § 108.1.3. The pictures submitted to Tempelmeyer showed insanitary conditions,

filth, and contamination. Both Mitchell and Lindgren, the deputy state fire marshal,

found numerous fire code violations and safety hazards at the Motel, including open

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gas piping, black mold, and improper maintenance of the mechanical, electrical, and

plumbing systems. Lindgren concluded that the Motel was not approved for human

occupancy, and the record amply supports that conclusion.

Because there was probable cause to support Mitchell’s regulatory enforcement

action against the Motel, Tempelmeyer is entitled to qualified immunity on Scott’s

First Amendment retaliation claim. The district court’s order denying in part

Tempelmeyer’s motion for summary judgment based on qualified immunity is

reversed.

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