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Weed v. Jenkins

United States District Court, E.D. Missouri, Eastern Division

August 18, 2016




         This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 59) and Plaintiffs Rule 56 Motion for Partial Summary Judgment as to Cpl. Jenkins' Liability and Col. Replogle's Monell Liability (ECF No. 58). The motions are fully briefed and ready for disposition.


         On September 10, 2015, the parties filed a 9-page Stipulation of Facts pertaining to Plaintiffs Motion for Preliminary Injunction. Both parties have also submitted additional facts in support of their summary judgment motions. Based on these submissions, the Court sets forth the following facts:

         On the morning of Saturday, August 17, 2013, Plaintiff and a group of citizens gathered on the sidewalk of the "Fairgrounds" overpass on Interstate 70 ("1-70") in St. Charles County, Missouri to protest the policies of President Barack Obama. (Stipulation of Facts ("Stipulation") ¶ 1, ECF No. 46; Defs.' Statement of Uncontroverted Material Facts ("DSUMF") ¶ 5, ECF No. 60-1) The group was called "Overpasses against Obama." (Stipulation ¶ 2) Plaintiff and other protesters displayed political signs, banners, and flags to cars on the overpass and driving on the interstate below in both directions. (Stipulation ¶ 3, DSUMF ¶ 6) Plaintiffs sign stated "Impeach Obama." (DSUMF ¶ 7)

         Traffic congestion on 1-70 that particular day was heavier than a normal weekend day due to highway construction and the Festival of the Little Hills taking place in downtown St. Charles, Missouri. (DSUMF ¶¶ 10-11; PL's Response to DSUMF ¶ 10) Motorists traveling eastbound on 1-70 were using the Fifth Street exit just east of the overpass to travel to the Festival. (DSUMF ¶ 11) The left lane of eastbound 1-70 was closed due to construction on a nearby bridge. (DSUMF ¶ 12) In addition, there was construction at the stoplight on Fifth Street which regulated traffic merging onto Fifth Street from eastbound 1-70. (DSUMF ¶ 13) As a result of this construction and heavy traffic, eastbound 1-70 was intermittently congested around and below the overpass. (DSUMF ¶ 14) Near the overpass, there were also Missouri Department of Transportation ("MODOT") signs, construction signs, commercial billboards, and commercial buildings with signs. (Stipulation ¶¶ 26-29)

         Between 9:30 a.m. and 2:00 p.m. on August 17, 2013, five accidents occurred on eastbound 1-70 around and below the overpass. (DSUMF ¶ 16) Defendant Corporal Jenkins investigated the first accident, which occurred shortly before 10:00 a.m. and before the protesters arrived. (DSUMF ¶ 18; PL's Statement of Undisputed Additional Material Facts ("PSUMF") ¶ 5, ECF No. 66) However, during Cpl. Jenkins' investigation, a MODOT employee told Jenkins he believed the protesters were causing a traffic safety hazard. (DSUMF ¶ 19) A second crash occurred at 11:07 a.m. in the right lane of eastbound 1-70 just west of the overpass. (DSUMF ¶ 23) The investigator, Trooper K. Brown observed that drivers were making evasive maneuvers and honking their horns, which she conveyed to Cpl. Jenkins. (DSUMF ¶¶ 24-25)

         The third accident involved a motorcycle and occurred under the overpass on eastbound 1-70. Trooper E. Grass investigated, and the motorcyclist indicated that he was distracted by the protesters. Trooper Grass informed Cpl. Jenkins that she believed the protesters were creating a traffic safety hazard which caused or contributed to the traffic accidents on 1-70. (DSUMF ¶¶ 26-28) Cpl. Jenkins called his sergeant, Defendant Colonel Ronald K. Replogle, and informed him of the numerous accidents at the overpass, heavy traffic congestion, motorists' complaints that the protesters were distracting, and Trooper Grass' belief that the protesters were creating a traffic safety hazard. (DSUMF ¶¶ 2, 30) The sergeant suggested that Cpl. Jenkins take a wait and see approach and also indicated that Cpl. Jenkins would have the authority to remove the protesters if it became more apparent that they were creating a safety hazard. (DSUMF ¶ 32)

         A fourth accident occurred around 1:30 p.m. in the right hand lane of eastbound 1-70. Trooper Grass investigated the accident, and one of the drivers and a passenger stated that they believed the accident happened because too many people were looking at the protesters instead of paying attention to the road. (DSUMF ¶¶ 33-36) Trooper Grass also observed that the traffic was backed up below the overpass, and approaching vehicles honked at the protesters. In addition, Trooper Grass saw numerous vehicles make unsafe lane changes, drivers slam on their brakes, and vehicles run off the road to avoid collisions. Trooper Grass was nearly struck by a car that swerved to avoid another vehicle. (DSUMF ¶¶ 37-39)

         Around 1:45 p.m., a fifth accident occurred, when a car traveling eastbound on 1-70 rear-ended another vehicle under the overpass. The driver and passengers in the rear-ended car told Trooper Grass that the protesters were distracting drivers and were going to cause more accidents. (DSUMF ¶¶ 40-41) When Cpl. Jenkins arrived at the scene, he noticed that traffic congestion was heavier than before, and he observed that traffic in both directions appeared to be honking at the protesters on the overpass. (DSUMF ¶¶ 42-44) After observing the traffic conditions and speaking with Trooper Grass, Cpl. Jenkins determined the protesters were creating a traffic hazard and causing or contributing to crashes around the overpass. (DSUMF ¶ 48) Cpl. Jenkins therefore decided the protesters should be removed from the overpass. (DSUMF ¶51)

         The Missouri State Highway Patrol ("MSHP") asked the City of St. Charles to remove the protesters, but a supervisor said the city would not take action. The MSHP dispatcher indicated that St. Charles would not take action because the city did not have an ordinance that regulated protest activity. (DSUMF ¶ 52, 54) As a result, Cpl. Jenkins and other members of the MSHP approached the protesters. Plaintiff and a fellow protester, Marc Messmer, asserted that they had a right to be on the overpass and asked which law permitted the MSHP to make them leave. (DSUMF ¶¶ 56-58, 69-71) An MSHP officer, Corporal Matt Schmidt explained that the protesters were causing a traffic safety hazard and needed to leave the overpass. However, Cpl. Schmidt explained that the protesters could return another time but had to leave that day due to traffic issues. (DSUMF ¶¶ 72-73) Plaintiff did not believe that he and the other protesters had any causal link to the accidents. (PSUMF ¶ 12, ECF No. 58-1) Plaintiff stated that he did not believe he needed to leave because he was merely asked and not told to leave. Cpl. Jenkins informed Plaintiff that if he did not leave, he would be arrested. (DSUMF ¶¶ 74-77) After Plaintiff informed Cpl. Jenkins that he would not leave, Cpl. Jenkins arrested Plaintiff and Mr. Messmer for willfully opposing the order of a member of the MSHP in contravention of § 43.170 of the Missouri Revised Statutes. (DSUMF ¶¶ 79-81) Plaintiff and Mr. Messmer were the only protesters who refused to leave the overpass and the only protesters who were arrested. (DSUMF ¶¶ 83-84) Cpl. Jenkins testified that he did not arrest Plaintiff because he disagreed with Plaintiffs political views or the political message the protesters were trying to convey. (DSUMF ¶ 85)

         Plaintiff returned to the same overpass to protest one week later, on August 24, 2013. Over 100 people attended the protest, and no one was arrested. Plaintiff has attended a total of six other protests on overpasses since August 17, 2013 and has not been arrested or threatened with arrest. (DSUMF ¶¶ 90-93) However, Plaintiff contends that he is afraid he will be arrested in the future. (Stipulation ¶ 53) Defendant Col. Replogle was the Superintendent of the MSHP on August 17, 2013, and Defendant Colonel J. Bret Johnson is the current Superintendent. (DSUMF ¶¶ 2-3) Col. Johnson is not aware of any other situation during which a protester was arrested for violating Mo. Rev. Stat. § 43.170. (DSUMF ¶ 98) Cpl. Jenkins has used that statute only two other times, and both occasions did not involve protesters. (DSUMF ¶¶ 100-101)

         Plaintiff filed a First Amended Complaint on May 12, 2015 under 42 U.S.C. § 1983. (PL's First Am. Compl., ECF No. 31) In his complaint, Plaintiff claims that Cpl. Jenkins unlawfully arrested Plaintiff in violation of the Fourth Amendment to the United States Constitution (Count I); Cpl. Jenkins violated Plaintiffs First Amendment rights by chilling his speech and his right to assemble (Count II); and Col. Replogle, in his individual capacity, violated 42 U.S.C. § 1983 by causing the wrongful arrest of Plaintiff and by chilling thirst amendment speech and assembly (Count III). Plaintiff also seeks declaratory judgment against Col. Johnson in his official capacity to declare a portion of Mo. Rev. Stat. § 43.170 unconstitutional (Count IV); injunctive relief to preliminarily and permanently enjoin the enforcement of a portion of Mo. Rev. Stat. § 43.170 by Col. Johnson in his official capacity (Count V); declaratory judgment against Col. Johnson in his official capacity to declare his custom, practice, and policy of making protesters move (Count VI); and preliminary and permanent injunctive relief to enjoin the custom and policy of making highway protesters move and/or arresting highway protesters against Col. Johnson in his official capacity (Count VII).

         On April 9, 2015, Plaintiff filed a First Amended Motion for Preliminary Injunction seeking to enjoin Defendants from enforcing a portion of Mo. Rev. Stat. § 43.170. (ECF No. 22) The Court denied the motion on October 28, 2015. (ECF No. 53) Then, on November 24, 2015, the Plaintiff filed a Motion for Partial Summary Judgment as to Cpl. Jenkins' Liability and Col. Replogle's Monell Liability. (ECF No. 58) Plaintiff contends that he is entitled to summary judgment on his claims for damages against Cpl. Jenkins for wrongful arrest and chilling his First Amendment speech and for Col. Replogle's unconstitutional policy of delegating traffic safety enforcement of Mo. Rev. Stat. § 43.170 against pedestrian protesters to troopers without objective guidelines. Defendants also filed a Motion for Summary Judgment, asserting that no genuine issues of material fact exist, and they are entitled to judgment as a matter of law. (ECF No. 59)

         II. Legal Standards

         Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court show "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995).

         The moving party has the initial burden to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 249(1986).

         When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ .P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986). In fact, the non-moving party must present sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for that party. Anderson, 477 U.S. at 249; Celotex, 411 U.S. at 324. Self-serving, conclusory ...

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