The 8th U.S. Circuit Court of Appeals on Jan. 19 issued two opinions related to the Black Lives Matter movement — one dismissing a claim that a Missouri police department had a policy of breaking up anti-police demonstrations, and another resurrecting a suit by a Missouri officer fired for sharing a satirical video criticizing the movement.
The first case involved a series of protests over excessive use of force by police that took place outside the Florissant, Missouri, police station in the summer of 2020. The suit alleges that police arbitrarily declared the assembly to be unlawful and ordered the protesters to disperse, resulting in some arrests.
The suit argues that the protesters were not violating state statutes that prohibit unlawful assembly or refusal to disperse. Rather than name particular officers, the suit brought claims under Monell v. Department of Social Services, a 1978 U.S. Supreme Court case that allows suits against agencies whose unwritten policies or customs are unconstitutional.
The 8th Circuit, however, said the plaintiffs’ complaint “improperly limited Florissant’s broad civil authority to manage protests in the public interest to situations violating the criminal offenses of unlawful assembly and failure to disperse.”
“This is a flawed legal theory,” Judge James B. Loken wrote for the court. He said police have many potential justifications for dispersing crowds, such as traffic control. He noted that the complaint itself indicated the protesters had painted a BLM message on the street in front of the station and declined to move out of the street to a parking lot.
Judge Jonathan A. Kobes concurred, but Judge Jane Kelly argued in a dissent that the suit should have been allowed to proceed at this stage. To avoid dismissal, she said, the plaintiffs only needed to show that their explanation of events was plausible.
“Applied here, the fact that the City could remove protesters who are blocking traffic does not mean that Plaintiffs’ theory that they did so arbitrarily is implausible,” she wrote.
John Hessel of Lewis Rice, an attorney for the city, said the ruling reaffirmed the basic First Amendment principle that free speech is protected but not unlimited. He said the protests were blocking a major St. Louis-area road and that, had the case proceeded to discovery, the city would have prevailed on summary judgment.
“You can place reasonable limits on the First Amendment right based upon the forum and based upon the conduct, even if it’s peaceful,” he said.
The American Civil Liberties Union of Missouri represented the protesters.
“We are disappointed with the decision and will continue to explore all options,” Tom Bastian, a spokesman for the organization, said in an email.
The second case concerned Brian Bresnahan, a former St. Peters police officer who was forced to resign for a message he sent to a text messaging group that officers used to update each other about local Black Lives Matter protests. As described in the opinion, Bresnahan shared a video from an animated show called “Paradise PD” that showed a black police officer who accidentally shot himself, captioned with a media headline that said, “another innocent black man shot by a cop.”
Bresnahan described the video as a parody of the BLM protests and alleged that his First Amendment rights were violated. The 8th Circuit agreed, reversing a district judge’s dismissal of the suit.
Judge Kobes, writing for the court, said Bresnahan had plausibly alleged that he was acting as a private citizen when he sent the video, as officers used the group text for both work-related and unrelated messages. The video, he added, could be regarded as protected speech that involved a matter of public concern because it “plausibly commented on BLM and related media coverage.”
He added that it remains to be seen if Bresnahan ultimately would prevail or if the department would be found justified in firing him.
“We hold merely that Bresnahan’s complaint states a claim for First Amendment retaliation,” Kobes wrote.
Judge Morris S. Arnold concurred. Loken did as well, though he wrote a brief separate opinion that approvingly cited the ruling’s limited conclusion.
“We are ecstatic with the Court’s ruling in this matter and intend to continue to stand up for our rights guaranteed by the First Amendment,” Peter Bruntrager of Bruntrager & Billings, an attorney for Bresnahan, said in an email.
John H. Kilper of Hamilton Weber, an attorney for the city, didn’t respond to a request for comment.