Submitted: April 6, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON and BENTON, Circuit Judges, and GERRARD,  District
BENTON, Circuit Judge.
Duane Weed participated in a highway overpass protest. Due to
traffic safety concerns, state troopers told the protesters
to disperse. Weed did not comply.
arrested. Weed sued, alleging that his arrest violated the
First and Fourth Amendments and that the statute authorizing
the arrest is invalid. The district courtgranted summary
judgment. Weed v. Jenkins, 2016 WL 4420985 (E.D. Mo.
Aug. 18, 2016). Weed appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
Saturday, August 17, 2013, Weed and others held signs
protesting the President's policies, from a pedestrian
sidewalk on an overpass over Interstate 70 in St. Charles,
Missouri. Protesters faced the highway below, targeting
that day was more congested than usual. The highway's
left lane was closed for construction. A festival taking
place nearby was accessible by the next exit. At that exit,
there was construction for traffic leaving the highway. The
traffic approaching the protest was heavy and intermittently
congested, backing up to the next exit.
day there were five accidents on the stretch of highway
approaching the protestors. One occurred before they arrived.
A Missouri Department of Transportation worker told the
investigating officer that the protesters were causing a
traffic safety hazard. Investigating the second accident, a
state trooper "observed drivers making evasive maneuvers
and honking their horns in response to protesters standing on
[the] overpass above." The driver in the third accident
told the investigating trooper "he was distracted by
protesters above on the overpass, and that the crash would
not have occurred if the protesters had not been there."
A driver and passenger in the fourth accident said that
"the crash occurred because too many people were looking
up at the protesters and not paying attention to the
road." The trooper investigating that accident "was
almost struck by a car that swerved to avoid hitting another
car" and "observed numerous vehicles change lanes
when it was unsafe to do so, drivers slam on their brakes,
and vehicles run off the road into the grass to avoid
collisions." The driver and passenger of the car hit in
the fifth accident also said the protesters were distracting.
T.R. Jenkins-the highest ranking officer from the Missouri
State Highway Patrol (MSHP) that day-was responsible to
decide whether to ask the protesters to leave. The troopers
who investigated the accidents told Jenkins that the
protesters were creating a traffic safety hazard, causing or
contributing to the accidents. After the third accident,
Jenkins was not personally convinced that the protesters were
causing or contributing to the accidents and decided to take
a "wait and see" approach. Jenkins went to assist
at the scene of the fifth accident. He noted that traffic was
heavier than earlier that day. The trooper who had
investigated the fourth and fifth accidents told him she had
observed unsafe driving, had almost been hit, and that the
motorists in the accidents thought the protesters were the
cause. Jenkins had also been told that "numerous persons
had called the MSHP and reported the protesters were causing
determined "that the protesters were creating a traffic
hazard and causing or contributing to traffic
accidents." He decided they should be removed from the
overpass. After the St. Charles police refused to remove
them, Jenkins sent MSHP officers to the overpass. When
Jenkins arrived, most of the protesters were already
dispersing, but Weed and another protester were arguing with
two other officers. The officers explained several times why
they were asking them to leave the overpass and said they
could return another time. Weed maintained he had a right to
be on the overpass and believed that because he had only been
"asked" to leave, he had no obligation to do so.
Jenkins asked Weed whether he was going to leave and said
that if he did not, he would be arrested. Weed refused to
leave. Jenkins arrested him for willfully opposing a member
of the highway patrol in violation of § 43.170 RSMo.
later, Weed returned to the same overpass for another
protest. No one was arrested. He has since attended many
other overpass protests.
sued Jenkins and the MSHP Superintendent, seeking damages as
well as declaratory and injunctive relief. The district court