Khalea Edwards; Arkayla Tenney-Howard; Nidhi Krishnan v. City of Florissant, Missouri

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3137
___________________________
Khalea Edwards; Arkayla Tenney-Howard; Nidhi Krishnan
lllllllllllllllllllllPlaintiffs - Appellants
v.
City of Florissant, Missouri
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 13, 2022
Filed: January 19, 2023
____________
Before LOKEN, KELLY, and KOBES, Circuit Judges.
____________
LOKEN, Circuit Judge.
Khalea Edwards, Arkayla Tenney-Howard, and Nidhi Krishnan bring this 42
U.S.C. § 1983 action against the City of Florissant, Missouri. They allege the City
is liable under Monell v. Department of Social Services, 436 U.S. 658 (1978),
because Florissant police officers, acting pursuant to an unlawful custom or policy,
violated First and Fourteenth Amendment rights at five protests in June and July 2020
when they declared an unlawful assembly and ordered dispersal of protestors who had

-- 1 of 11 --

not committed the Missouri crimes of unlawful assembly or refusal to disperse.
Plaintiffs appeal the district court’s1 Memorandum and Order dismissing their
complaint for failure to state a claim on the ground that a municipality’s police power
“to declare that an assembly is unlawful and to order individuals to disperse is not
tethered to Missouri’s statutes codifying the criminal offenses of unlawful assembly
and failure to disperse.” We agree with the court and therefore affirm.
I. Background
In the summer of 2020, protests lasting several weeks took place outside the
Florissant police station objecting to the use of excessive force by police. Plaintiffs’
First Amended Complaint for Declaratory and Injunctive Relief (“FAC”) describes
five protests during a two-week period in June and July when Plaintiffs allege that
police arbitrarily declared an unlawful assembly and ordered protestors to disperse
who were not committing the crimes of unlawful assembly or refusal to disperse. A
person commits the crime of unlawful assembly if “he or she knowingly assembles
with six or more other persons and agrees with such persons to violate any of the
criminal laws of this state or of the United States with force or violence.” Mo. Rev.
Stat. § 574.040. The crime of refusal to disperse is committed when a person, “being
present at the scene of an unlawful assembly . . . knowingly fails or refuses to obey
the lawful command of a law enforcement officer to depart from the scene.” Mo.
Rev. Stat. § 574.060. The FAC alleges that Plaintiff Tenney-Howard and others were
arrested “for purported violations including unlawful assembly and failure to
disperse” at the June 27 protest.
Plaintiffs assert no claims against individual officers and do not challenge the
constitutionality of § 574.040 or § 574.060. Rather, they assert a Monell claim for
1The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.
-2-

-- 2 of 11 --

declaratory and injunctive relief, nominal damages, and attorneys’ fees based on two
allegedly unconstitutional policies or customs. First, they allege that Florissant’s
Police Department “has a custom or policy of declaring or threatening to declare
protests of police misconduct to be unlawful assemblies in the absence of an
agreement of one person with six or more other persons to imminently violate a
criminal law with force or violence (‘Arbitrary Declarations’).” Second, they allege
the Department has “a custom or policy of arresting or threatening to arrest
individuals for failure to disperse from purported unlawful assemblies in the absence
of an agreement of one person with six or more other persons to imminently violate
a criminal law with force or violence or the absence of a riot (‘Unlawful Dispersal
Commands’).” Plaintiffs allege that these customs or policies “have a chilling effect
on reasonable protesters,” and that they “reasonably fear they will be arrested despite
committing no crime if they return to Florissant to protest.”
The FAC then alleges in four causes of action that the Arbitrary Declarations
and the Unlawful Dispersal Commands customs or policies violate Plaintiffs’ First
Amendment and Due Process rights because they permit the police to declare an
unlawful assembly and order law-abiding protesters to disperse “in the absence of an
agreement of one person acting in concert with six or more other persons to
imminently violate a criminal law with force or violence,” which are the elements of
a § 574.040 unlawful assembly offense and an “integral part” of a § 574.060 refusal
to disperse offense. Each custom or policy “unlawfully suppresses speech in an
arbitrary manner,” chilling Plaintiffs from engaging in constitutionally protected
activity, and each is unconstitutionally vague because it does not “provide people of
ordinary intelligence a reasonable opportunity to understand what conduct is
prohibited” and encourages “arbitrary and discriminatory enforcement.”
-3-

-- 3 of 11 --

II. Discussion
Plaintiffs establish § 1983 municipal liability if they prove that their
constitutional rights were violated by “an ‘action pursuant to official municipal
policy’ or misconduct so pervasive among non-policymaking employees of the
municipality ‘as to constitute a custom or usage with the force of law.’” Ware v.
Jackson County, 150 F.3d 873, 880 (8th Cir. 1998), quoting Monell, 436 U.S. at 691.2
“[A]bsent a constitutional violation by a city employee, there can be no § 1983 or
Monell liability for the City.” Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th
Cir. 2018). To show a “custom or usage,” Plaintiffs must prove “(1) the existence of
a continuing, widespread, persistent pattern of unconstitutional misconduct by the
governmental entity’s employees; (2) deliberate indifference to or tacit authorization
of such conduct by the governmental entity’s policymaking officials after notice to
the officials of that misconduct; and (3) an injury by acts pursuant to the
governmental entity’s custom.” Mitchell v. Kirchmeier, 28 F.4th 888, 899-900 (8th
Cir. 2022) (cleaned up).
To survive a motion to dismiss, a complaint must plead sufficient factual matter
to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Here, the essence of Plaintiffs’ four claims is that Florissant police
officers declared unlawful assemblies and ordered dispersal of protesters who were
not violating § 574.040 or § 574.060. The district court concluded that a
municipality’s police power to declare an unlawful assembly and order dispersal “is
not tethered” to these Missouri criminal statutes. We agree. Plaintiffs’ FAC
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
2The FAC alleges unlawful official municipal policies but fails to identify a
responsible decisionmaker with final policymaking authority. See Bernini v. City of
St. Paul, 665 F.3d 997, 1007-08 (8th Cir.), cert. denied, 568 U.S. 978 (2012). As
pleaded, this is an unlawful custom case.
-4-

-- 4 of 11 --

to disperse. This is a flawed legal theory. For example, a municipality’s “substantial
interest in . . . ensuring the free and orderly flow of traffic on streets and sidewalks”
can without more justify dispersal orders. Duhe v. City of Little Rock, 902 F.3d 858,
865 (8th Cir. 2018), cert. denied, 1395 S. Ct. 1178 (2019); see Grider v. Abrahamson,
180 F.3d 739, 747-48 & n.9 (6th Cir.), cert. denied, 528 U.S. 1020 (1999); Wash.
Mobilization Comm. v. Cullinane, 566 F.2d 107, 116-17 (D.C. Cir. 1977).
Without question, persons have a First Amendment right to peacefully protest
government action. See Edwards v. South Carolina, 372 U.S. 229, 235-36 (1963).
But the government may place reasonable limits on this right based on the type of
forum at issue and the conduct of protestors, even if peaceful. See Cantwell v.
Connecticut, 310 U.S. 296, 308 (1940); Frye v. Kansas City Mo. Police Dep’t, 375
F.3d 785, 789-90 (8th Cir. 2004). Traffic control is a legitimate, nonviolent reason
for regulating a protest. See Cox v. Louisiana, 379 U.S. 536, 554-55 (1965). So is
controlling entry by protesters onto state property not traditionally used as a public
forum. See Adderley v. Florida, 385 U.S. 39, 41 (1966) (jail); Greer v. Spock, 424
U.S. 828, 838 (1976) (military base). In ruling that the FAC failed to state a claim,
the district court explained that the pleading “ignores the ‘wide swath’ of other lawful
reasons officers could have dispersed them.” The court cited FAC allegations that
“described how protesters impeded traffic,” noted they painted a message on the
street in front of the police station, and described how protesters “standing in the
street in front of the police station” were instructed to stand “across the street in a
parking lot.” The court held that obstructing traffic could be an “obvious lawful
alternative explanation[]” for the dispersal orders. Cf. Iqbal, 556 U.S. at 681-82.
More or less conceding that the police power to declare an unlawful assembly
and order those assembled to disperse is broader than violations of Missouri’s
criminal statutes, Plaintiffs argue the FAC “plausibly alleges the existence of a
continuing, widespread, persistent pattern of unconstitutional misconduct by
identifying at least five instances of a two-week period where Florissant police shut
-5-

-- 5 of 11 --

down peaceful protests.” However, except for the allegation that the protests did not
violate § 574.040 or § 574.060 by involving at least seven persons and the threat of
violence, these conclusory allegations that the police orders were “arbitrary,”
“unlawful,” or “unconstitutional” are, at most, only “consistent with” a constitutional
violation. Iqbal, 556 U.S. at 678. The district court therefore concluded the FAC did
not push Plaintiffs’ claims “across the line from conceivable to plausible.” We agree.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged -- but it has not shown -- that the
pleader is entitled to relief.” Id. at 679 (cleaned up).
The alleged customs of declaring unlawful assemblies and ordering protesters
to disperse in “the absence of an agreement of one person acting in concert with six
or more other persons to imminently violate a criminal law with force or violence”
do not state a claim of constitutional injury under Monell. Although a violation of
§ 574.040 or § 574.060 would no doubt justify these law enforcement actions in many
circumstances, the absence of criminal law violations does not establish that a
constitutional injury occurred. Thus, the FAC failed to plausibly allege a
constitutional violation by any city employee and therefore failed to state a claim of
Monell liability.
Moreover, the FAC did not plausibly allege that a policymaking official had
notice of and tacitly authorized the alleged unconstitutional conduct. Without
allegations that a municipal decision maker was even aware of officers repeatedly and
arbitrarily declaring unlawful assemblies and ordering protesters to disperse, the FAC
“alleges nothing more than directives issued ad hoc by individual officers.”
McTernan v. City of York, 564 F.3d 636, 658-59 (3d Cir. 2009). For this reason, too,
Plaintiffs failed to state a plausible claim of Monell liability.
Plaintiffs further argue these two unwritten Police Department customs violate
their Due Process rights to fair notice of when police might declare an unlawful
-6-

-- 6 of 11 --

assembly and freedom from arbitrary enforcement. Plaintiffs challenge law
enforcement agency customs rather than a Missouri statute or municipal ordinance
or regulation, the traditional targets of vagueness claims. See, e.g., Langford v. City
of St. Louis, 3 F.4th 1054, 1059 (8th Cir. 2021). But Plaintiffs’ basis for challenging
the customs as vague is that they authorize dispersals when protesters are not
violating criminal statutes and using force. As we have explained, that factual
predicate is not constitutionally required. Beyond that, Plaintiffs do not allege facts
plausibly showing that the five specific incidents involved lack of fair notice or
arbitrary enforcement, only conclusory allegations they were “arbitrary.” The FAC
therefore states no plausible basis to enjoin the City’s police officers from making
fact-intensive determinations whether future dispersal orders will violate a particular
person’s Due Process rights. See Iqbal, 556 U.S. at 678. In this situation, “[a] claim
for money damages, not a request for injunctive relief, is an appropriate and effective
method for dealing with isolated circumstances in which police officers arrest
civilians who are not even arguably violating the law.” Shirmer v. Nagode, 621 F.3d
581, 588 (7th Cir. 2010). The mere existence of “close calls” as to when traffic
control or other government needs justify dispersal of an assembly does not render
the unwritten customs unconstitutionally vague. Cf. Duhe, 902 F.3d at 864.
III. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
KELLY, Circuit Judge, dissenting.
Federal Rule of Civil Procedure 8 requires that a complaint present “a short and
plain statement of the claim showing that the pleader is entitled to relief.” In order
to meet this standard, and to survive a motion to dismiss under Rule 12(b)(6), a
plaintiff’s complaint need only “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
-7-

-- 7 of 11 --

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. This “plausibility” requirement is not a “probability requirement” and
just “asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id.; see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and
‘that a recovery is very remote and unlikely.’”)
In evaluating a complaint, “[c]ourts should consider whether there are lawful,
‘obvious alternative explanations’ for the alleged conduct, because ‘where a
complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.’”
McDonough v. Anoka Cnty., 799 F.3d 931, 946 (8th Cir. 2015) (cleaned up) (quoting
Iqbal, 556 U.S. at 678). “If the alternative explanations are not sufficiently
convincing, however, the complaint states a plausible claim for relief, because
‘ferreting out the most likely reason for the defendants’ actions is not appropriate at
the pleadings stage.’” Id. (cleaned up) (quoting Watson Carpet & Floor Covering,
Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 458 (6th Cir. 2011)). Indeed, it is not the
district court’s role at the pleading stage to conclusively decide which explanation or
inference is more compelling. See Hamilton v. Palm, 621 F.3d 816, 819 (8th Cir.
2010) (stating that while a plaintiff’s complaint raised multiple “plausible
inferences,” “[w]hich inference will prove to be correct is not an issue to be
determined by a motion to dismiss”).
Here, the district court concluded that there were “obvious alternative
explanations” for the officers’ actions. More specifically, the court found that the
complaint ignored the wide swath of lawful reasons officers could have dispersed
protesters and even affirmatively pleaded one of those reasons: traffic control.
Respectfully, I disagree.
-8-

-- 8 of 11 --

First, the fact that other alternative reasons could exist does not necessarily
mean that a plaintiff has failed to state a claim. Rather, those alternatives must be
“concrete” and “obvious” and must “render[] the plaintiff’s theory implausible.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009). In other words,
“a defendant is not entitled to dismissal if the facts are merely consistent with lawful
conduct.” Id. Applied here, the fact that the City could remove protestors who are
blocking traffic does not mean that Plaintiffs’ theory that they did so arbitrarily is
implausible. Put another way, even assuming the police had the power to declare an
assembly unlawful and order individuals to disperse—a power that, according to the
district court, “is not tethered to Missouri’s statutes codifying the criminal offenses
of unlawful assembly and failure to disperse”—this power is not unfettered and is still
subject to the rights afforded by the First Amendment.
It is plausible that the police in this case had a “lawful reason” to disperse the
protesters. It is also plausible that, as Plaintiffs plead in their FAC, the officers were
acting arbitrarily in declaring unlawful assemblies and issuing orders of dispersal.
At the Rule 12(b)(6) stage, however, a court should not—indeed, it cannot—seek to
ascertain which explanation or inference is more plausible.3 The merits of Plaintiffs’
claims will bear out, or not, in the process of discovery, and it is at that point that the
City is welcome to challenge those claims on a Rule 56 motion for summary
judgment. See Twombly, 550 U.S. at 556 (stating the complaint must contain
“enough fact to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing]”). It may be tempting for a court to rely on its “judicial experience and
common sense” to conclude that “recovery is very remote and unlikely,” and thus
prematurely dismiss a case. See Braden, 588 F.3d at 594 (first quoting Iqbal, 556
3This is particularly true where, as here, the City likely has relevant information
solely in its possession. See Whitney v. Guys, Inc., 700 F.3d 1118, 1129 (8th Cir.
2012) (identifying the practical difficulties of pleading requirements when the
relevant information is potentially in the hands of the defendant).
-9-

-- 9 of 11 --

U.S. at 679; and then quoting Twombly, 550 U.S. at 556). However, the court’s role
at the pleading stage is not to assess the ultimate merits, but rather, to ask whether the
plaintiff has put forth a well-pleaded complaint such that the factual allegations
“nudge the claim across the line from conceivable to plausible.” McDonough, 799
F.3d at 945 (cleaned up) (quoting Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d
82, 88 (1st Cir. 2015)); see also Braden, 588 F.3d at 594 (stating that a well-pleaded
complaint may survive a motion to dismiss even if a judge thinks recovery is
unlikely). Here, they do.
Second, it bears repeating that on a motion to dismiss, a court must accept “the
allegations contained in the complaint as true and mak[e] all reasonable inferences
in favor of the nonmoving party.” Jones v. Douglas Cnty. Sheriff’s Dep’t, 915 F.3d
498, 499 (8th Cir. 2019) (quoting Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014)).
Here, the district court found that the FAC “explicitly described how protestors
impeded traffic.” By my reading, it did not. The FAC states that protesters at some
point painted “Black Lives Matter” on the street and that at another point police
pushed protesters out of the street from where they were standing. But neither
allegation says anything about impeding traffic, and at a minimum, the allegations say
nothing explicitly about it. To conclude that Plaintiffs alleged they impeded traffic,
in my view, is to improperly make inferences in favor of the wrong party.
Third, Plaintiffs were not required to “rule out potential lawful explanations for
[the officers’] conduct[,]” in their complaint. Braden, 588 F.3d at 596 (“Rule 8 does
not require a plaintiff to plead facts tending to rebut all possible lawful explanations
for a defendant’s conduct.”). In this case, if some of the protestors were actually
engaging in an unlawful assembly, were impeding traffic, or were posing a threat to
others or to property, perhaps there would be an obvious alternative explanation for
the officers’ conduct. But such facts were not pleaded in the FAC. And at the
pleading stage, Plaintiffs were not required to rebut these possible alternative
explanations. Under the district court’s ruling, to survive the City’s motion to
-10-

-- 10 of 11 --

dismiss, Plaintiffs needed to affirmatively negate that they “impeded traffic,” or
affirmatively negate any of the City’s potential lawful alternative explanations. This
heightened burden is not required under either our case law or Iqbal and Twombly.
See Braden, 588 F.3d at 596 (determining that “[i]t is not [the plaintiff’s]
responsibility to rebut these [lawful] possibilities in his complaint” and that the
district court “erred by placing that burden on him [and] finding the complaint
inadequate for failing to rule out potential lawful explanations for [defendants’]
conduct”).
Drawing all reasonable inferences in favor of the proper party, this case is not
one where the facts alleged “are precisely the result one would expect from lawful
conduct in which the defendant[s] [are] known to have engaged.” Braden, 588 F.3d
at 597. Of course, the officers could have acted for a variety of reasons. But
whatever the reason, the speculative possibilities were “far from the sort of concrete,
obvious alternative explanation” Plaintiffs needed to rebut in their FAC. Id. As this
court has said, the officers are “not entitled to dismissal if the facts are merely
consistent with lawful conduct.” Id.
Because I would reverse the Rule 12(b)(6) dismissal of Plaintiffs’ FAC, I
respectfully dissent.
______________________________
-11-

-- 11 of 11 --