United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
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
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:
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)
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
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)
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)
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
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)
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)
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)
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).
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)
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.
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).
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