Essence Welch v. Daniel Dempsey, individually

United States Court of Appeals
For the Eighth Circuit
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No. 21-3504
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Essence Welch,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Daniel Dempsey, individually and in his official capacity as a law enforcement
officer of the Des Moines, Iowa Police Department,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 22, 2022
Filed: October 20, 2022
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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
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COLLOTON, Circuit Judge.
Essence Welch sued police officer Daniel Dempsey under 42 U.S.C. § 1983
after Dempsey deployed pepper spray in Welch’s face. The district court* concluded
*The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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that Welch was engaged in protest activity protected by the First Amendment, and
that there was sufficient evidence for a reasonable jury to find that Dempsey used
force against Welch because she exercised her constitutional right to freedom of
speech. Dempsey appeals, and argues that he is entitled to qualified immunity from
suit, but we conclude that there is no reversible error.
Welch participated in protest activities in downtown Des Moines on the
evening of May 30, 2020, in the aftermath of the death of George Floyd in
Minneapolis. At one point, protestors threw rocks at an historic county courthouse
and broke glass. Welch was near that scene, recording the events on her cellular
phone.
The incident in question occurred about thirteen minutes later, after Welch had
moved across the street to the vicinity of a different courthouse facility. Welch was
then broadcasting a video of events taking place in front of the second courthouse
building. According to the facts assumed by the district court, no property damage
was occurring at the time of the incident, and much of an erstwhile crowd had
migrated away from the courthouse.
Welch was standing “before” a scrimmage line of police officers who were
protecting the courthouse, and she was located on the “edge” of the line. Video
evidence confirms that Welch was standing on a public sidewalk several feet away
from a line of officers—forward and to the right of the line from the perspective of
the officers. See Scott v. Harris, 550 U.S. 372, 380-81 (2007).
Dempsey arrived behind the police line in an armored vehicle, walked around
a group of officers who were taking no action against Welch, approached Welch
while she was live-streaming the events, and sprayed her in the face with a chemical
agent. Dempsey gave no warning to Welch, and he was on the scene for only twelve
seconds before he deployed force.
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To establish a violation of the First Amendment based on the retaliatory use of
force, a plaintiff must show that (1) she engaged in protected activity, (2) the officer
used force that would chill a person of ordinary firmness from continuing the
protected activity, and (3) the use of force was motivated by the exercise of the
protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). When a
claim alleges a retaliatory arrest, which is not the assertion here, a plaintiff also must
show as a general matter that the officer acted without probable cause to arrest.
Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019).
The district court denied Dempsey’s motion for summary judgment on the
claim that he used force against Welch in retaliation for her exercise of rights under
the First Amendment. The court concluded that Welch was exercising her right to
protest discriminatory policing and was engaged in protected activity when Dempsey
used force against her. The court further reasoned that Dempsey’s action would chill
a person of ordinary firmness from continuing her protected activity.
On the question of motive, the court determined based on the circumstantial
evidence that a reasonable jury could find that Welch’s exercise of her First
Amendment rights was the but-for cause of Dempsey’s use of force. In a footnote,
the court noted that Dempsey’s motion made “a passing reference that ‘at minimum’
he is entitled to qualified immunity,” and concluded that the law was clearly
established that retaliation for protected speech offends the Constitution. See
Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1988).
On appeal, Dempsey’s principal argument is that his use of force was not
motivated by Welch’s exercise of constitutional rights, but rather by Welch’s actions
in the wake of riotous activity that occurred earlier in the evening. He contends that
he would have taken the same action against Welch regardless of her protected
speech. Dempsey asserts that the district court’s conclusion that a jury could find to
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the contrary was based on “speculation,” and that he is therefore entitled to qualified
immunity.
We lack jurisdiction to consider this contention because it concerns a matter
of evidence sufficiency. Johnson v. Jones, 515 U.S. 304, 313 (1995). In an
interlocutory appeal raising a defense of qualified immunity, this court has
jurisdiction to address only an order deciding a purely legal issue of whether the facts
alleged by a plaintiff show a violation of clearly established law. By contrast, an
order deciding which facts a party may, or may not, be able to prove at trial is not a
final decision that may be appealed. The district court’s determination that a
reasonable jury could find that Dempsey acted with retaliatory motive is a matter of
evidence sufficiency that is not appealable at this juncture. Of course, Dempsey may
advance his position regarding motivation before a jury, and in post-trial motions or
a post-judgment appeal as warranted, but we lack jurisdiction to conduct the
suggested review in this interlocutory appeal. See Riggs v. Gibbs, 923 F.3d 518, 524
(8th Cir. 2019); Austin v. Long, 779 F.3d 522, 524 (8th Cir. 2015); Bearden v. Lemon,
475 F.3d 926, 930 (8th Cir. 2007); Schilcher v. Univ. of Ark., 387 F.3d 959, 966 (8th
Cir. 2004); Thomas v. Talley, 251 F.3d 743, 747 (8th Cir. 2001).
Dempsey also maintains that there was “arguable probable cause demonstrating
Welch was interfering with the officers’ duties in coming within the police line.”
This argument, too, founders on a jurisdictional limitation. The district court
assumed, consistent with video evidence, that Welch was positioned “before” the
police line. Dempsey’s argument that Welch was “within” the police line, and
thereby “interfering” with officers, seeks to challenge the district court’s factual
assumption that Welch was not within the police line. We lack jurisdiction to
consider that question of evidence sufficiency. Johnson, 515 U.S. at 313.
Dempsey’s argument based on “arguable probable cause” fails for other
reasons as well. Probable cause is a constitutional standard under the Fourth
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Amendment that must be satisfied in order to conduct a search or seizure. Dempsey
does not argue that this case involves a search or seizure, and he does not explain why
the asserted existence of “arguable probable cause” would be dispositive as a matter
of law on a claim alleging retaliatory use of force in violation of the First
Amendment. His cited authorities concern seizures: a claim of retaliatory arrest
under the First Amendment, Just v. City of St. Louis, 7 F.4th 761, 768-69 (8th Cir.
2021), and an allegation of unreasonable seizure under the Fourth Amendment,
Peterson, 754 F.3d at 598. Nieves held that a First Amendment retaliatory arrest
claim should not turn solely on the personal motive of the arresting officer, explaining
that “[i]n the Fourth Amendment context,” the Court has “almost uniformly rejected
invitations to probe subjective intent.” 139 S. Ct. at 1724 (internal quotation
omitted). But if there is an argument for extending the Nieves no-probable-cause
requirement beyond a claim of retaliatory Fourth Amendment seizure, for which the
most analogous common law tort is false imprisonment or malicious prosecution, then
Dempsey has not presented it.
Nor does Dempsey, having conceded in the district court that there was no
probable cause to arrest Welch, identify any law that she was arguably violating when
he pepper-sprayed her in the face. He suggests only that persons other than Welch
took part in a “riot” at an earlier time, see Iowa Code § 723.1, and that protestors
arguably engaged in an “unlawful assembly” involving three or more persons, see
Iowa Code § 723.2. When Dempsey used force against Welch, however, she was
standing alone on a public sidewalk streaming a live video on her phone. Dempsey
did not, during the twelve seconds that he was on the scene, develop arguable
probable cause that Welch was rioting or engaged in an unlawful assembly under
Iowa law. Dempsey’s arguments thus do not undermine the district court’s
conclusion that Welch’s right to be free from a retaliatory use of force was clearly
established at the time of the incident. See Peterson, 754 F.3d at 603; Quraishi v. St.
Charles Cty., 986 F.3d 831, 839 (8th Cir. 2021); Baribeau v. City of Minneapolis, 596
F.3d 465, 481 (8th Cir. 2010).
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For these reasons, the order of the district court denying qualified immunity on
Welch’s claim alleging retaliatory use of force in violation of the First Amendment
is affirmed.
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