explaining that to state a retaliation claim, “a plaintiff must demonstrate that she was ‘singled out’ due to her protected expression”
How later courts described this case
- explaining that to state a retaliation claim, “a plaintiff must demonstrate that she was ‘singled out’ due to her protected expression”
- “Peacefully protesting and reporting are generally protected forms of First Amendment expression.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
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No. 22-3000
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Heather De Mian
Plaintiff - Appellant
v.
City of St. Louis, Missouri; John Hayden, COL., in his individual and official
capacities; William Olsten, Officer, in his individual and official capacities
Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 20, 2023
Filed: November 16, 2023
____________
Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Heather De Mian was filming a protest when Officer William Olsten pepper
sprayed the crowd. She sued Officer Olsten, Commissioner John Hayden, and the
City of St. Louis for violating her First Amendment rights, among other things. The
district court1 granted summary judgment on De Mian’s federal claims and declined
to exercise supplemental jurisdiction over her state law claims. We affirm.
I.
This case treads familiar ground—it involves the same protest as two of our
prior cases. See Aldridge v. City of St. Louis, 75 F.4th 895 (8th Cir. 2023); Brandy
v. City of St. Louis, 75 F.4th 908 (8th Cir. 2023). On September 29, 2017, a crowd
gathered outside of Busch Stadium in downtown St. Louis during a Cardinals game
to protest a police officer’s acquittal on first-degree murder charges. As police were
waiving traffic through the crowd, there was an altercation. Police arrested two
protestors and used a taser on one of them. As officers escorted the arrestees away,
a crowd of protestors followed, yelling and screaming.
De Mian takes photographs and videos of newsworthy events, often protests.
Several news outlets have featured her videos, which she films from a powered
wheelchair. De Mian was livestreaming as she and other protestors followed the
officers. Among the shouts of the crowd, De Mian’s audio captures herself yelling:
“You tase him? Why are you using a potentially lethal weapon on people? Okay,
now you’re pissing people off really badly. Why would you use a potentially lethal
weapon?”
One of the officers escorting the arrestee was Officer Olsten. He and a
protestor, Amir Brandy, had a heated exchange that continued even after Officer
Olsten transferred the arrestee to another officer. Officer Olsten was soon face-to-
face with Brandy, and he deployed his pepper spray, hitting Brandy and others in the
crowd. Officer Olsten continued to spray for several seconds as he walked toward
the crowd of protestors.
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
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De Mian was more than 20 feet away, off to Officer Olsten’s side when he
was spraying. He never faced her, but she was near the edge of the arc that he
sprayed over the crowd. Videos of the incident do not show whether she was hit by
the spray, but she yelled soon after: “There was no dispersal order. Why did you
spray me?”
De Mian sued Officer Olsten, Commissioner Hayden, and the City. She
alleged violations of her First and Fourth Amendment rights under 42 U.S.C. § 1983
and brought municipal liability, civil conspiracy, and several state law claims. The
district court granted qualified immunity to Officer Olsten, finding that no
reasonable jury could conclude that his actions were motivated by De Mian’s First
Amendment conduct. It also granted summary judgment to the defendants on the
remaining federal claims and declined to exercise supplemental jurisdiction over the
state law claims.
On appeal, De Mian challenges the district court’s grant of summary judgment
on her First Amendment claim against Officer Olsten and her municipal liability
claim against the City. She also argues that her state law causes of action should be
“reinstated.”
II.
We review a district court’s grant of summary judgment based on qualified
immunity de novo. Aldridge, 75 F.4th at 898. Summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
view the facts in the light most favorable to the nonmoving party—De Mian—and
give her the “benefit of all reasonable inferences.” Goffin v. Ashcraft, 977 F.3d 687,
690–91 (8th Cir. 2020) (citation omitted).
Officer Olsten gets qualified immunity unless (1) the facts demonstrate the
deprivation of a constitutional or statutory right, and (2) the right was clearly
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established at the time of the deprivation. Aldridge, 75 F.4th at 898. De Mian argues
that Officer Olsten deprived her of her First Amendment rights by pepper spraying
her in retaliation for filming and protesting. To show retaliation, she must
demonstrate that (1) she engaged in protected expression, (2) Officer Olsten took an
adverse action that would chill a person of ordinary firmness from continuing the
activity, and (3) there was a but-for causal connection between Officer Olsten’s
retaliatory animus and her injury. Brandy, 75 F.4th at 914–15. Peacefully protesting
and reporting are generally protected forms of First Amendment expression. And a
person of ordinary firmness would be chilled from continuing to report or protest
after being pepper sprayed. See Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014),
abrogated on other grounds by Laney v. City of St. Louis, 56 F.4th 1153, 1157 n.2
(8th Cir. 2023). So the last question standing is whether there is a but-for causal
connection between De Mian filming or protesting and Officer Olsten’s decision to
spray her.
“The causal connection is generally a jury question . . . [unless] the question
is so free from doubt as to justify taking it from the jury.” Id. at 603 (citation
omitted). But “more than a temporal connection is required to present a genuine
factual issue on retaliation.” Brandy, 75 F.4th at 916 (citation omitted). So we have
repeatedly held that a plaintiff must demonstrate that she was “singled out” due to
her protected expression, whether as an individual or as part of a group. Compare
Quraishi v. St. Charles Cnty., 986 F.3d 831, 838–39 (8th Cir. 2021) (affirming denial
of qualified immunity where police tear-gassed multiple reporters but not other
people in the area), with Aldridge, 75 F.4th at 899–900 (affirming grant of qualified
immunity and distinguishing Quraishi on the ground that everyone in the area,
including the plaintiffs, was protesting when the officer sprayed them
“indiscriminately”). Because De Mian has not pointed to any facts showing that
Officer Olsten singled her out, either individually or as part of a particular group,
her claim fails.
This case is indistinguishable from Aldridge, where we affirmed summary
judgment against the plaintiffs because “there [was] no evidence in the record that
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[the plaintiffs] had any interaction with Officer Olsten, that Officer Olsten was aware
of their presence, or that [they] did anything to differentiate themselves from the
other protestors in the crowd.” 75 F.4th at 900. And it is distinct from the cases in
which we affirmed the denial of qualified immunity where the officers plausibly
directed their retaliatory conduct directly at the plaintiffs for their First Amendment
activities. See Green v. City of St. Louis, 52 F.4th 734, 737 (8th Cir. 2022) (officers
“fired tear gas in [Green’s] direction” as she was leaving a protest and walking to
her car); Welch v. Dempsey, 51 F.4th 809, 811 (8th Cir. 2022) (officer “approached
Welch . . . and sprayed her in the face”); Brandy, 75 F.4th at 913–16 (officer had a
verbal altercation with Brandy before he “deployed his pepper spray, hitting Brandy,
who was directly in front of him”). Nothing in the record shows that Officer Olsten
directed his actions toward De Mian.
De Mian argues that she is a well-known reporter and is readily identifiable
because she is in a wheelchair. But this fact, without more, is insufficient for a jury
to infer that Officer Olsten knew or recognized her. She also speculates that Officer
Olsten may have been retaliating against her for filming. But “there is no evidence
Officer Olsten observed her filming or deployed pepper spray in retaliation for her
doing so.” Aldridge, 75 F.4th at 900. Finally, she argues that she was yelling and
screaming, so a reasonable jury could find that Officer Olsten heard her. But the
plaintiffs in Aldridge were also yelling and screaming, and nothing in the record
indicates that Officer Olsten heard anyone other than Brandy. To the contrary, in a
video recorded close to Officer Olsten and Brandy, De Mian’s shouts cannot be
heard.
There is no evidence from which a reasonable jury could infer that De Mian’s
actions motivated Officer Olsten to spray in her direction. So the lack of a causal
connection is “so free from doubt as to justify taking [this question] from the jury.”
Peterson, 754 F.3d at 603 (citation omitted).
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III.
To tie up two loose ends: De Mian’s municipal liability claim also fails
because “absent a constitutional violation by a city employee, there can be no”
municipal liability for the City. Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th
Cir. 2018). And we decline to instruct the district court to exercise supplemental
jurisdiction over De Mian’s state law claims. De Mian argues that because her
federal claims should be reinstated, her state law claims should also be reinstated.
But her federal claims fail. So the district court did not abuse its discretion by
declining to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c); Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).
IV.
The district court’s judgment is affirmed.
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