Cory Sessler v. City of Davenport, Iowa

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3459
___________________________
Cory Sessler
Plaintiff - Appellant
v.
City of Davenport, Iowa; Greg Behning, in his individual capacity acting as a
police officer for the City of Davenport, Iowa; Jason Smith, in his individual
capacity acting as a police officer for the City of Davenport, Iowa; J.A. Alcala, in
his individual capacity acting as a police officer for the City of Davenport, Iowa
Defendants - Appellees
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
____________
Submitted: September 21, 2023
Filed: May 23, 2024
____________
Before SMITH, Chief Judge,1 MELLOY and ERICKSON, Circuit Judges.
____________
MELLOY, Circuit Judge.
1 Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).

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Plaintiff Cory Sessler and several associates loudly preached a religious
message to passersby and shoppers inside a fenced-off, vendor-occupied area of
downtown Davenport, Iowa (the City), during a secular, commercial festival.
Vendors within the fenced-off area had entered into agreements with festival
organizers to rent spaces or stalls to sell goods and food or to conduct performances.
Mr. Sessler was not a paying vendor and had entered into agreements with neither
festival organizers nor the City. The fenced-off area, consisting of City streets and
sidewalks in the City center, undisputedly served as a “traditional public forum”
under normal circumstances when fences were not erected. During the festival,
however, vehicle traffic was excluded and pedestrian access was controlled but did
not require the purchase of tickets.
After police officers and Mr. Sessler’s group cooperatively attempted to find
a mutually acceptable location for Mr. Sessler’s group within the festival grounds,
the group preached for approximately thirty minutes within the grounds and near an
entrance. Then, in response to nearby vendors’ complaints, officers ordered the
group to relocate to a spot outside the fences and across a street. The group complied
and continued to preach to, and interact with, passersby for over two hours.
Mr. Sessler later sued three officers invoking 42 U.S.C. § 1983 and alleging a
violation of his free exercise and free speech rights under the First Amendment of
the U.S. Constitution. He also sued the City of Davenport pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978), alleging officers acted pursuant
to an unconstitutional policy. Mr. Sessler moved for a preliminary injunction, which
the district court denied. Our court affirmed. See Sessler v. City of Davenport, 990
F.3d 1150 (8th Cir. 2021).
After discovery, the district court2 granted summary judgment to the
defendants concluding the officers did not violate Mr. Sessler’s rights and, in the
2 The Honorable Rebecca Goodgame-Ebinger, United States District Judge for
the Southern District of Iowa.

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alternative, qualified immunity applied. The district court also granted summary
judgment to the City on the official-policy claims.
This case presents many challenging and close questions. As such, we agree
that qualified immunity applies to the claims against the officers. It was not clear at
the time of the events in this case whether the fenced-off City streets and sidewalks
remained a “traditional public forum” or whether they served as a less-protected
“limited public forum.” Further, no reasonable trier of fact could conclude from the
summary judgment record that the officers’ actions were anything but content
neutral or that such actions were unreasonable or otherwise restricted or diminished
Mr. Sessler’s access to his intended audience. In short, the officers in the present
case acted within a gray area and transgressed no bright lines clearly established by
existing caselaw. Finally, nothing about the City’s general policy of permitting a
private festival to take place impinged upon Mr. Sessler’s rights. Accordingly, we
affirm the judgment of the district court.
I.
In this appeal from a grant of summary judgment, we present the facts in the
light most favorable to Mr. Sessler, the non-moving party. The facts are drawn
largely from uncontested deposition testimony and from several body-cam videos of
the events at issue. Street Fest was a commercial event held by a division of the
Davenport Chamber of Commerce in conjunction with a popular foot race, the “Bix
7.” Typically, tens of thousands of people participated in the race, and similar
numbers attended Street Fest every year. Street Fest no longer takes place, but the
annual Bix 7 race continues, and Mr. Sessler asserts other commercial events and
festivals take place in and around Davenport at the same time.
In summer 2018, Davenport had in place a City Special Event Policy allowing
events like Street Fest to take place on public land subject to City approval and a
permitting process. Street Fest organizers applied for and obtained a permit subject
to several requirements imposed by the City. Most importantly for the present case,

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the City allowed Street Fest organizers to limit access to several blocks of streets in
the core downtown area subject to a requirement that organizers erect fencing and
hire off-duty City police officers as security.
Organizers installed six-foot high chain link fences around the festival area,
left open several points for unticketed pedestrian entry and exit, and hired officers
as required. Vendors entered into contracts with the organizers to pay for spaces
within the fenced-off area or to conduct business as “roaming vendors” within the
area. The vendor contracts required the vendors to agree to limitations on their noise
levels and their interference with other vendors.
During the festival, Mr. Sessler, three other adults, and two children entered
the fenced-off area, positioned themselves in a first location, and began loudly
sharing their religious message using a microphone, a loudspeaker, and signs on
extendible poles. The children distributed pamphlets. The group neither applied for
nor entered into a vendor contract with the Street Fest organizers.
Defendant Officer Smith and a festival organizer told the group they were in
a vendor-rented spot. Defendant Officers Alcala and Behning joined Officer Smith
and asked the group to move to a different location. Interactions between the officers
and Mr. Sessler were calm and seemingly respectful. The officers and Mr. Sessler
both referenced trying to find a compromise. Someone in Mr. Sessler’s group
suggested a different spot. Officer Smith rejected the suggestion because the spot
was too close to where a performer was about to begin and Officer Smith did not
think the group should be “on the microphone preaching over the top” of a
vendor/performer. Officer Smith also rejected a second suggestion from Mr.
Sessler’s group, characterizing the spot as a traffic “choke point.” Officer Smith
offered as a third suggestion a courtyard within the fenced-off area adjacent to one
of the streets, but stated, “If you’re screaming over the top of vendors or impeding
their point of sales at all, then we’re going to have to fix that again.”

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Officer Alcala went with the group to the suggested courtyard, but the group
and Officer Alcala could not agree upon a particular spot. The group suggested a
location Officer Alcala rejected because it was rented to a vendor. Officer Alcala
suggested a location the group rejected because it was blocked from clear public
view by vendor tents. Eventually, Officer Alcala and the group agreed the group
could preach from a location within the fenced-off area near one of the entrances.
At the entrance location, the group preached for approximately thirty minutes,
during which time several vendors complained to festival organizers who, along with
the vendors, complained to Officers Smith and Behning. Mr. Sessler later estimated
that his own volume was such that pedestrians would have had to move at least thirty
feet away from him to avoid his voice. The complaining vendors and organizers
asserted that the group was blocking customers and driving customers away. One
vendor stated, “He’s telling my customers they’re going to hell.”
In response to the complaints, Officers Smith and Behning told the group to
leave the fenced-off area and directed them to a location across the street from the
entrance. Officer Smith told the group they would be arrested if they failed to move.
The group moved to the indicated location and resumed preaching for over two hours
to large crowds of passersby, many of whom were entering or exiting the fenced-off
area. Many of these people engaged with Mr. Sessler’s group. No one from Mr.
Sessler’s group had any additional interactions with the police after leaving the
fenced-off area.
Several weeks later, Mr. Sessler contacted the City. An assistant City attorney
told him she had reviewed the incident and found nothing unlawful. She also stated
the Street Fest organizers controlled access to the area during the festival.

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II.
We review the district court’s grant of summary judgment de novo.3 Glover
v. Bostrom, 31 F.4th 601, 603 (8th Cir. 2022) (“Summary judgment is appropriate
when ‘there is no genuine dispute as to any material fact.’” (quoting Fed. R. Civ. P.
56(a))). We draw reasonable inferences in Mr. Sessler’s favor, but “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The government’s ability to restrict protected speech such as religious
messaging depends on (1) the nature of the forum in which the speech occurs, and
(2) whether the restriction is content-based or content-neutral. See Powell v. Noble,
798 F.3d 690, 699–700 (8th Cir. 2015). The question of content neutrality asks
whether the restriction is “based on the content of the speech” or some other factor.
See Forsyth County. v. Nationalist Movement, 505 U.S. 123, 134 (1992).
A traditional public forum is a public space where citizens have traditionally
spoken freely and exchanged ideas. In a traditional public forum, such as a generally
open street, park, or sidewalk, the government faces the most restrictions on its
ability to limit speech. Content-based restrictions in a traditional public forum are
subject to strict scrutiny: they must be narrowly tailored to serve a compelling
3 Mr. Sessler asserted free-exercise and free-speech claims in his complaint but
briefed only the free-speech claims below and on appeal. Accordingly, we address
his free-speech claims and treat his free-exercise claims as waived. Further, the
entire course of interaction between Mr. Sessler’s group and the officers is relevant
to provide context, define the rights at issue, and establish what a reasonable jury
could conclude. But Mr. Sessler appears to limit his allegation of a constitutional
violation to the final move: his exclusion from the festival grounds. Because Officer
Alcala’s interactions with Mr. Sessler’s group ended before the allegedly
unconstitutional exclusion from the festival grounds, the claims against Officer
Alcala fail for the reasons stated herein as well as for the independent reason that he
did not participate in the allegedly unconstitutional act.

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government interest. Ball v. City of Lincoln, 870 F.3d 722, 730 (8th Cir. 2017).
Content-neutral restrictions in such a forum may address matters like the time, place,
or manner of speaking but are subject to intermediate scrutiny: they must be
“narrowly tailored to serve a significant government interest, and leave[] open ample
channels of communication.” Id. (citation omitted).
A public area that has not traditionally been open, but which the government
has designated for open expression and debate, is a designated public forum. A
designated public forum is treated the same as a traditional public forum when
assessing the government’s ability to restrict speech. Id.
In contrast, a limited public forum, sometimes referred to as a nonpublic
forum, is an area that is neither traditionally open for public discourse nor
specifically designated for such use. Id. (nonpublic forum); see also Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983) (limited public
forum). In a limited public forum, the government is less constrained in its ability
to restrict protected speech because, generally speaking, the government must be
allowed to put its property to various intended uses, not all of which are consistent
with largely unfettered citizen speech or frequent disruption. See Ball, 870 F.3d at
729–30 (stating that the “government, no less than a private owner of property, has
the power to preserve the property under its control for the use to which it is lawfully
dedicated” (quoting United States v. Grace, 461 U.S. 171, 178 (1983) (citation
omitted))); see also, e.g., Fams. Achieving Indep. & Respect v. Neb. Dep’t of Soc.
Servs., 111 F.3d 1408, 1419 (8th Cir. 1997) (stating that the lobby of a social services
office was not a public forum because its primary purpose was to provide services
to welfare recipients rather than foster the exchange of ideas). In a limited public
forum, the government may impose content-neutral restrictions so long as the
restrictions are reasonable. Ball, 870 F.3d at 729–30.
In assessing the nature of various fora, our court has relied on several non-
exhaustive considerations, including: (1) “the physical characteristics of a venue”
such as markings, fences, or other items setting off an area as a “special enclave”;

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(2) the typical use of the specific venue; (3) the venue’s function and objective
purpose; and (4) the government’s intent for the venue. Ball, 870 F.3d at 731–36
(discussing and applying factors). We also look at “any special characteristics
regarding the environment in which” the venue exists. Powell, 798 F.3d at 700
(quoting Bowman v. White, 444 F.3d 967, 978 (8th Cir. 2006)). In assessing these
factors, no one consideration controls the analysis, particular characteristics are not
necessarily talismanic, and important purposes and special characteristics may be
temporary. See, e.g., Powell, 798 F.3d at 699–700 (finding a sidewalk to be a limited
public forum while a fair was taking place); see also United States v. Kokinda, 497
U.S. 720, 727 (1990) (“The mere physical characteristics of the property cannot
dictate forum analysis.”).
Turning to the facts at hand, we agree with Defendants that the restrictions at
issue were content neutral and reasonable. The summary judgment record as a
whole, including the repeated interactions with officers, the clear emphasis on
volume and disruption, the cooperative efforts to find an acceptable location, the
opportunity to preach within the Street Fest grounds after repeated warnings as to
volume prior to removal, and the ample opportunity for continued preaching to large
crowds of the same intended audience outside the fences make clear that no
reasonable jury could find the officers based their actions on the content of Mr.
Sessler’s message.
Mr. Sessler correctly notes that (1) a complaining vendor referenced him
telling her customers they were going to hell, and (2) Officer Smith stated that
vendors or customers had “taken offense.” Mr. Sessler, therefore, likens his group’s
ejection from the fenced-off area as police action honoring a content-based
“heckler’s veto.” See, e.g., Bible Believers v. Wayne Cnty., 805 F.3d 228, 234 (6th
Cir. 2015) (“The scenario presented by this case, known as the ‘heckler’s veto,’
occurs when police silence a speaker to appease the crowd and stave off a potentially
violent altercation.”). But the present case simply is not a case about officers
restricting speech to prevent a violent backlash from listeners. Rather, this is a case
about disruption by a speaker who had received repeated warnings about his volume.

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Although isolated quotes lend some support to Mr. Sessler’s position, we conclude
that such statements, taken in context, amount to the proverbial “mere scintilla” of
evidence insufficient to preclude summary judgment. See Anderson v. Rugged
Races, LLC, 42 F.4th 955, 958 (8th Cir. 2022) (“A mere scintilla of evidence is
insufficient to defeat summary judgment and if a nonmoving party who has the
burden of persuasion at trial does not present sufficient evidence as to any element
of the cause of action, then summary judgment is appropriate.” (quoting Brunsting
v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010))). Stray comments in
this extensive record simply do not create a triable question of fact as to content
neutrality.
Turning to the nature of the forum, Mr. Sessler argues the fenced-off streets
and sidewalks within the Street Fest grounds stand as classic examples of a
traditional public forum. See, e.g., Grace, 461 U.S. at 179 (noting that sidewalks
typically are deemed public fora with little additional analysis). He argues further
that, although a government may designate a non-public forum to serve as a public
forum, a government cannot likewise strip an otherwise traditional public forum of
its status by permitting a private party to erect fences and put it to a temporary and
different use. Accordingly, Mr. Sessler urges us to accord little weight to the
presence of fences and vendor booths or the similarities between Street Fest and an
enclosed fair.
Defendants, in contrast, urge us to hold that the Street Fest grounds within the
six-foot fences served as a limited public forum during Street Fest. According to
Defendants, the area was more like a limited-purpose fairgrounds than a street during
the festival as evidenced by actual use, governmental intent, and conspicuous
physical barriers. In support of their argument, Defendants cite Powell, in which we
held sidewalks on the grounds of the Iowa State Fair, but outside of the area where
tickets were required for entry, served as a limited public forum while the fair was
underway. 798 F.3d at 700 (“The property in question—at least during the fair— .
. . .”); see also Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640,
655 (1981) (“The Minnesota State Fair is a limited public forum in that it exists to

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provide a means for a great number of exhibitors temporarily to present their
products or views, be they commercial, religious, or political, to a large number of
people in an efficient fashion.”). Defendants also note a lack of clear authority
categorically barring governments from temporarily reserving or changing the
purpose for which property is used.
In light of the foregoing difficult and potentially meritorious arguments, we
conclude it is unnecessary to resolve the parties’ dispute as to whether the streets
retained their character as a traditional public forum during the festival. Reasonable
jurists may debate the similarities and differences between the facts presented in
Powell, similar cases, and the present case. But qualified immunity for the police
officers as against the present claims for damages does not turn on the debates of
reasonable jurists. In this gray area, qualified immunity applies to shield the officers
from suit.
It suffices to hold that (1) the officers’ actions satisfied the reasonableness
standard for content-neutral restrictions in a limited public forum, and (2) no firmly
established authority demonstrates the fenced-off area was a traditional public forum
during Street Fest. See Pearson v. Callahan, 555 U.S. 223, 243–44 (2009) (qualified
immunity protects officers from suit unless officers violated a clearly established
constitutional right, and courts may address the “clearly established” prong as a first
step in analysis). In reaching this conclusion, we emphasize that we do not define
clearly established rights in the abstract or at a “high level of generality.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018); see also Bus. Leaders in Christ v. Univ. of
Iowa, 991 F.3d 969, 980 (8th Cir. 2021) (“The clearly established inquiry focuses
‘on whether the offic[ial] had fair notice that her conduct was unlawful’ . . . The
Supreme ‘Court’s caselaw does not require a case directly on point for a right to be
clearly established [but] existing precedent must have placed the statutory or
constitutional question beyond debate.’” (quoting Kisela, 138 S. Ct. at 1152)). As
such, the simple fact that the forum at issue involved a city street does not resolve
the forum question. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 801 (1985) (“[F]orum analysis is not completed merely by identifying the

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government property at issue”). The presence of compelling countervailing details
as to the nature of the forum precludes the imposition of liability on the officers.
Regarding the City, summary judgment was proper because there is no
evidence of an unconstitutional policy. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978) (municipal liability requires “action pursuant to official municipal policy
of some nature [that] caused a constitutional tort”). Mr. Sessler points to the City’s
Special Events Policy and the assistant City attorney’s after-the-fact description of
the officers’ actions as legal. On its face, however, the City’s general Special Events
Policy is silent not only as to speech, but as to almost all features Mr. Sessler asserts
as material to the present case. Further, nothing about the actual restrictions the
officers imposed on Mr. Sessler stemmed from an official City policy. And, to the
extent Mr. Sessler asserts that after-the-fact comments by an assistant City attorney
reflect official policy, the assistant City attorney was not a final policymaker nor are
we inclined to treat such comments (comments akin to the statement of a litigation
position) as an overarching or preexisting City policy.
Finally, to the extent Mr. Sessler otherwise asserts an entitlement to injunctive
or other relief, we conclude he lacks standing. Street Fest no longer occurs, Mr.
Sessler has articulated no definite nor specific plans for future demonstrations, and
there has been no showing of a likelihood of similar facts arising to make similar
events repeat themselves. The likelihood of any future potentially unconstitutional
application of the City’s general Special Events Policy under sufficiently similar
circumstances is too speculative a possibility to permit adjudication. See City of Los
Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (“The plaintiff must show that he has
sustained or is immediately in danger of sustaining some direct injury as the result
of the challenged official conduct and the injury or threat of injury must be both real
and immediate, not conjectural or hypothetical.” (citations omitted)).
We affirm the judgment of the district court.

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SMITH, Circuit Judge, concurring.
I concur in the well-reasoned opinion of the court. I write separately to
emphasize that, even assuming the officers violated Sessler’s constitutional rights,
those rights were not clearly established under existing precedent.
For a right to be clearly established, the contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right. A plaintiff must identify either
controlling authority or a robust consensus of cases of persuasive
authority that placed the statutory or constitutional question beyond
debate at the time of the alleged violation. In other words, the law at the
time of the events in question must have given the officers fair warning
that their conduct was unconstitutional.
See Kelsay v. Ernest, 933 F.3d 975, 979 (8th Cir. 2019) (en banc) (cleaned up).
If Street Fest constituted a traditional public forum, the removal of Sessler
from Street Fest must satisfy the level of scrutiny applied to traditional public
forums. See Phelps-Roper v. Nixon, 509 F.3d 480, 485 (8th Cir. 2007). This level of
scrutiny varies based on whether the regulation is content based or content neutral.
Perry Educ. Ass’n v. Perry Loc. Educators’ Ass'n, 460 U.S. 37, 45 (1983). “For the
state to enforce a content-based exclusion it must show that its regulation is
necessary to serve a compelling state interest and that it is narrowly drawn to achieve
that end.” Id. For the state to “enforce [a] regulation[] of the time, place, and manner
of expression which [is] content-neutral,” the regulation must be “narrowly tailored
to serve a significant government interest, and leave open ample alternative channels
of communication.” Id.
Here, Sessler argues that “Davenport’s exclusion policy, instilled in the
special event process, empowers a permittee to exclude disfavored people and
speech from the confines of the permitted space. And, in turn, DDP [the Downtown
Development Partnership] exercised this privilege to expel Sessler due to the content

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of his message.” Appellant’s Br. at 23. In Sessler’s prior appeal, we determined that
the Special Events Policy is “a content-neutral permitting scheme.” Sessler v. City
of Davenport, 990 F.3d 1150, 1155 (8th Cir. 2021). The question, therefore, is
whether precedent clearly established that the Special Events Policy was “applied
to Sessler” in an unconstitutional manner. Appellant’s Br. at 12; see also Parks v.
City of Columbus, 395 F.3d 643, 653 (“This case presents us with a unique situation.
We are not faced with a challenge to the ordinance in and of itself being an
unconstitutional time, place, or manner restriction of [the plaintiff’s] speech. Rather,
[the plaintiff] argues that both the ordinance and permit scheme as applied in this
situation are unconstitutional.”).
Sessler relies primarily on Johnson v. Minneapolis Park & Recreation Board,
729 F.3d 1094 (8th Cir. 2013), to show that the law was clearly established that the
officers’ removal of Sessler from Street Fest violated his constitutional rights.
Specifically, Sessler contends that Johnson’s “underlying facts . . . are strikingly
similar” and “Johnson is squarely on point.” Appellant’s Br. at 38, 39. In Johnson,
the plaintiff, who desired to distribute Bibles, sought “a preliminary injunction
against enforcement of a local regulation that restricts literature distribution in a
public park during the Twin Cities Pride Festival.” 729 F.3d at 1096. The regulation
“restrict[ed] literature distribution to booths during the Festival.” Id. at 1099. The
personal distribution of literature within the Festival was not allowed. Id. at 1098.
The parties agreed that the public park constituted a traditional public forum, and we
assumed that the “regulation should be treated as content-neutral.” Id. at 1099. The
city parks board maintained that the regulation’s “restricting [of] literature
distribution to booths during the Festival is narrowly tailored to serve its significant
interest in maintaining the orderly flow of people, providing access for security and
emergency vehicles, and facilitating the activities of the participants of the Festival.”
Id. It “reason[ed] that the restriction on literature distribution serves the legitimate
interest in crowd control, because literature distribution from outside of booths
increases congestion and congestion impedes emergency, security, and delivery
vehicles.” Id. at 1100.

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We held that although “controlling crowds can constitute a significant
governmental interest that bears directly on public safety” “[i]n the abstract,” the
city parks board failed to “show[] that the literature distribution regulation is
narrowly tailored to serve that interest in this instance.” Id. First, the city parks board
produced scant evidence that prohibiting literature distribution furthered its asserted
significant governmental interest. Id. Second, the regulation was underinclusive
because the city parks board permitted street performers, whose “very purpose is to
draw a crowd.” Id. at 1101. The city parks board’s “satisf[action] with informal case-
by-case action with respect to performers but insist[ance] on a blanket ban on
distribution of literature outside booths diminishe[d] the credibility of its asserted
rationale.” Id.
Despite Sessler’s insistence, Johnson does not clearly establish that the
officers’ removal of Sessler from Street Fest violated his constitutional rights.
Sessler makes an as-applied challenge to an otherwise content-neutral policy; the
issue is whether the officers’ removal of him from Street Fest was based on the
content of his speech or on his conduct and the corresponding level of scrutiny. By
contrast, Johnson involved a facial challenge focused on whether the regulation—
which we assumed was content-neutral—satisfied the appropriate level of scrutiny
based on the city parks board’s asserted significant government interest in crowd
control. Johnson does not provide the “controlling authority” necessary to “place[]
the . . . constitutional question beyond debate at the time of the alleged violation.”
Kelsay, 933 F.3d at 979 (cleaned up).
In the absence of controlling authority, we can examine persuasive authority
to see if the violation of Sessler’s constitutional rights was clearly established. See
id. Three persuasive authority decisions vie for consideration: Parks, 395 F.3d 643;
Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008); Bible Believers v.
Wayne Cnty., 805 F.3d 228 (6th Cir. 2015).
In Parks, a demonstrator, who attended a public arts festival held pursuant to
a non-exclusive block party permit, was removed from the festival because “the

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sponsor of the event did not want him there.” 395 F.3d at 646. After being removed
and finding speech efforts outside the festival to be futile, he ceased his speech
efforts and sued for injunctive relief, declaratory relief, and damages for the violation
of his First Amendment right to free speech. Id. No facts were in dispute. Id. After
the district court dismissed the demonstrator’s complaint with prejudice, the
demonstrator appealed.
On appeal, the demonstrator argued that “the ordinance and permit scheme as
applied in this situation are unconstitutional.” Id. at 653. The Sixth Circuit first
determined that the demonstrator was removed based on the content of his speech.
Id. “The City offered no explanation as to why the sponsor wanted him removed.”
Id. Nor was there any evidence that “the [a]rts [c]ouncil had a blanket prohibition on
the distribution of literature or that others engaging in similar constitutionally
protected activity were removed from the permitted area.” Id. Crucially, the court
“f[ound] it difficult to conceive that [the demonstrator’s] removal was based on
something other than the content of his speech.” Id. (emphasis added). Having found
that the officer removed the demonstrator based on his speech, the court applied
strict scrutiny. Id. Because the city offered no compelling state interest to justify its
prohibition on the demonstrator’s exercise of his free speech rights at the public arts
festival, a traditional public forum, the court held that the city violated the
demonstrator’s First Amendment rights. Id.
In Bible Believers, members of a Christian evangelical group, who attended a
city festival celebrating Arab culture, were removed from the festival because of the
crowd’s hostile reaction to their speech. 805 F.3d at 239–40. The group’s “speech
[was] the cause for the unrest.” Id. at 240. The officers informed the group that if
they did not leave the festival, they would be cited for disorderly conduct. Id. The
group departed. Id. The group and its members filed suit against the county, its
sheriff, and deputies, alleging that their expulsion had effectuated a heckler’s veto
in violation of their First Amendment rights. Id. at 241. After the district court
granted summary judgment in favor of the defendants, the group and its members
appealed. Id. at 242.

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On appeal, content neutrality became the principal issue. Id. at 247. The Sixth
Circuit held that the defendants’ “actions were decidedly content-based.” Id.
“‘Listeners’ reaction to speech is not a content-neutral basis for regulation’ or for
taking an enforcement action against a peaceful speaker.” Id. (first quoting Forsyth
Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992), then citing Brown v.
Louisiana, 383 U.S. 131, 133 n.1 (1966)). According to the court, “It [was]
indisputable that [the defendants] acted against the [Christian evangelical group] in
response to the crowd’s negative reaction.” Id. (emphasis added). “[A]bundant
evidence” existed “that the police . . . effectuated a heckler’s veto.” Id. The court
noted the irrelevance of whether the plan that the officers followed was “content-
neutral because the officers enforcing it [were] ordained with broad discretion to
determine, based on listener reaction, that a particular expressive activity [was]
creating a public danger.” Id. Because the officers’ removal of the group was content
based, strict scrutiny was applicable. Id. at 253. The court held that strict scrutiny
was not satisfied.
In contrast to Parks and Bible Believers, the Third Circuit held in Startzell that
the city police’s movement of religious protestors because they interfered with or
disrupted a permitted gay-pride event effectuated “justified, reasonable, content-
neutral regulations of the time, place, or manner of their expression.” 533 F.3d at
203. The protesters’ means of speaking (bullhorns and musical instruments) and
their nearness to the main stage of the permitted event created legitimate concerns
for potential disruptive conflict. Id. at 190–91. “Once the musical program began on
the main stage, [the police] instructed [the protestors] to move farther up [the]
[s]treet so that they would not block the stage or interfere with its activities, noting
that OutFest held a permit to hold a program on stage.” Id. at 191. Thereafter, the
protestors “c[a]me to a standstill in the middle of the street.” Id. The police informed
the protestors that “they had to move again because there were complaints that they
were blocking access to vendor booths.” Id. The police instructed the protestors to
move toward another street, “near a popular gay bar . . . that was located within the
OutFest permit area but at its perimeter.” Id. The protesters refused, and the police
arrested the protesters for disorderly conduct and for refusing to obey police orders.

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Id. The protesters sued the city, and the district court granted the city’s motion for
summary judgment on the protesters’ First Amendment claims. Id. at 191–92.
On appeal, the religious protestors asked the Third Circuit “to disregard [the
non-profit organization’s] permit to hold OutFest because they believe[d] the non-
exclusive permit did not give the police the right to restrict their speech.” Id. at 198.
But the Third Circuit distinguished impermissible disruptive activity from protected
speech, stating:
The right of free speech does not encompass the right to cause
disruption, and that is particularly true when those claiming protection
of the First Amendment cause actual disruption of an event covered by
a permit. The City has an interest in ensuring that a permit-holder can
use the permit for the purpose for which it was obtained. This interest
necessarily includes the right of police officers to prevent counter-
protestors from disrupting or interfering with the message of the permit-
holder. Thus, when protestors move from distributing literature and
wearing signs to disruption of the permitted activities, the existence of
a permit tilts the balance in favor of the permit-holders.
Id. at 198–99.
The court concluded that “[t]he police action was not based on the content of
[the protestors’] message but on their conduct.” Id. at 199. A video showed that the
protestors “used bullhorns and microphones in an attempt to drown out the platform
speakers and then, most significantly, congregated in the middle of the walkway.”
Id. The court determined that “ample justification” existed for the police to order the
protesters “to move when they interfered with the permitted event’s activities by
expressing their message with loud bullhorns right next to the main stage where
musical performances were held, directly confronting a transgendered individual,
and blocking access to the vendors who had applied for booths at [the gay-pride
event].” Id. (footnote omitted). The court concluded, “Because [the protestors] were
interfering with the permitted event’s message, something the other [festival]
attendees were not doing, the police were justified in directing [the protestors’]

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movement away from the stage and the vendors.” Id. (citation omitted). The court
found “no evidence” that “the [c]ity’s actions were based on the content of the
speech.” Id. at 200. Instead, it was “apparent that the police understood [the
protestors] had rights under the First Amendment to express their message, but in
directing [the protestors] to move to another location within [the festival] they were
merely imposing a content-neutral time, place, or manner restriction.” Id.
Officers testified that separation was necessary “for the safety and welfare of
everybody concerned” and that “‘the significant part’ of the reason . . . to move [the
protestors] was because they were blocking the vendors.” Id. “Although [an officer]
admitted there was ‘a potential’ for the crowd to get hostile based on [the protestors’]
message, the undisputed evidence show[ed] [the protestors] . . . had attracted a crowd
that was blocking access to the vendor booths.” Id. (citation omitted). The court
found no evidence suggesting “that the police direction to [the protestors] to move
to a different location was based on content or viewpoint.” Id. Instead, the police’s
request that the protestors move constituted “a content-neutral response to the
interference caused by [the protestors]’ actions and loud speech with the permitted
event’s activities.” Id. at 201. “Preclusion of a message is the evil at which the
content-neutrality principle is aimed,” the court explained, “not arrangements of a
public forum so that individuals and groups can be heard in an orderly and
appropriate manner.” Id. (internal quotation marks omitted).
Applying these cases to the instant case, was the law clearly established that
the officers’ removal of Sessler violated his constitutional rights? It depends upon
whether the officers removed Sessler because of complaints about the content of his
message (what he was saying), his conduct (what he was doing), or some
combination of the two. See Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012)
(“[T]he court determines whether the implicated right was clearly established at the
time of the deprivation.”). If the record shows that the officers removed Sessler from
Street Fest because of the content of his message, Parks and Bible Believers clearly
establish that the officers violated Sessler’s First Amendment rights. If the record
shows that the officers removed Sessler from Street Fest because of his conduct or

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based on a combination of Sessler’s conduct and message, then Startzell supports a
conclusion that the law was not clearly established that Sessler’s constitutional rights
were violated.
In reviewing a district court’s grant of summary judgment based on qualified
immunity,
courts are required to view the facts and draw reasonable inferences in
the light most favorable to the party opposing the summary judgment
motion. In qualified immunity cases, this usually means adopting the
plaintiff’s version of the facts. However, this does not mean that the
court should deny summary judgment any time a material issue of fact
remains on the constitutional violation claim because to do so could
undermine the goal of qualified immunity to avoid excessive disruption
of government and permit the resolution of many insubstantial claims
on summary judgment. Rather, the court must take a careful look at the
record, determine which facts are genuinely disputed, and then view
those facts in a light most favorable to the non-moving party as long as
those facts are not so blatantly contradicted by the record that no
reasonable jury could believe them.
O’Neil v. City of Iowa City, 496 F.3d 915, 917 (8th Cir. 2007) (cleaned up).
Additionally, courts must consider all undisputed facts in reviewing the grant of
summary judgment based on qualified immunity. See Murphy v. Engelhart, 933 F.3d
1027, 1028 (8th Cir. 2019) (“Viewing the undisputed facts most favorably to . . . the
non-moving party, we conclude that [the officer’s] actions did not violate [the non-
moving party’s] clearly established constitutional right . . . .”). To add another layer
of complexity to our inquiry, we must also consider whether, based on these facts, a
“reasonable officer would have known that his conduct was unlawful due to a robust
consensus of authority from other circuits.” Graham v. Barnette, 5 F.4th 872, 887
(8th Cir. 2021) (emphases added). “We adopt the perspective of a reasonable officer
at the scene, taking into account the information he possessed at the time. For a
plaintiff to overcome qualified immunity, existing precedent must have placed the

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constitutional question beyond debate.” Barton v. Taber, 820 F.3d 958, 966 (8th Cir.
2016) (emphasis added) (cleaned up).
The following constitutes the relevant undisputed facts, combined with those
disputed facts construed in the light most favorable to Sessler: Sessler and his group
“initially engaged in street preaching activities at the corner of Second Street and
Main Street inside of the Street Fest Festival.” R. Doc. 23, at 4. They were asked to
leave that spot because another group had paid a fee to reserve the location. When
later asked again to leave the spot, Sessler disputed with Officers Smith and Behning
whether the festival was public space for enabling free speech or private ground.
The officers discussed with Sessler DDP’s willingness to provide the group
“an area away from the public sidewalk where [Sessler] was standing” R. Doc. 96-
1, at 3. Sessler’s group and the officers attempted to negotiate a suitable location.
“Sessler’s group ultimately agreed” to move to the “courtyard adjacent to West
Second Street.” R. Doc. 107, at 6. Before the group moved to that location, Officer
Smith informed them “if you’re screaming over the top of [vendors] or impeding
their point of sales at all, then we’re going to have to fix that again.” Id. (quoting R.
Doc. 42, at 08:45–55).
Officer Alcala then accompanied Sessler’s group to the courtyard identified
by Officer Smith. Upon arrival, “[Sessler] and Officer Alcala could not agree on an
appropriate location within or near the . . . [c]ourtyard for [Sessler] to engage in
street preaching activities.” R. Doc. 23, at 4. Officer Alcala’s concern was Sessler
and his group intruding on paid vendor positions set up on the street adjacent to the
courtyard, while Sessler’s concern was vendor tents blocking the group from
interacting with the festival attendees. Sessler “told Officer Alcala that he was
willing to turn off his amplification and just use the sound of his voice.” R. Doc. 96-
2, at 3. “Accepting the disagreement, [Officer] Alcala smiled and said, ‘we’re trying
to compromise.’” R. Doc. 107, at 6 (quoting R. Doc. 15:22-35). Sessler and Officer
Alcala departed the courtyard in search of a different location. Id.

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After further negotiation, “[Sessler] and his group were allowed to move to
an area near Street Fest’s entrance on Brady Street and Second Street.” R. Doc. 23,
at 5. Sessler and his group preached at this location for 30 minutes.
The crowd’s interactions with Sessler and his group reflected problems both
with his message and his methods. By Sessler’s own admission, at least “one or two
people” “winced” in discomfort from the volume. R. Doc. 91-3, at 113. Sessler also
acknowledged that, due to the volume of his amplified preaching, “vendors or those
purchasing from the vendors in that direct area” “would have had to [] walk[] at least
30 feet to [be] outside of the sound of [Sessler’s] voice.” Id. “While Sessler preached,
nearby vendors expressed concern about the effect of Sessler’s preaching on their
customers.” R. Doc. 107, at 6 (citing Doc. 40, 0:49–1:10). Video footage captured
one vendor “exclaiming: ‘I’m losing business.’” Id. (quoting R. Doc. 42, at 17:27–
30). This same vendor subsequently joined a second vendor in complaining to
Officer Behning. “The first vendor complained: ‘they’re telling our customers that
they’re going to Hell.’ The second vendor complained that Sessler and his group
were ‘standing in front of our booths.’” Id. at 7 (first quoting R. Doc. 40, at 1:04–
10, then quoting R. Doc. 40, at 0:49–1:04).4
Vendors also complained to DDP Director Jason Gilliland about Sessler’s
impact on their business. R. Doc. 91-3, at 138–39 (“The majority of the complaints
I was getting were from vendors because they felt that their business was being
impacted.”). Specifically, “people were not wanting to be in [the vendors’] booth
and were spending less time there.” Id. at 139. “The complaints were that [Sessler
and his group] were driving customers away in general.” Id. at 143.
4 The dissent acknowledges the undisputed fact that Officer Behning received
the complaint about Sessler’s group blocking a vendor’s booth but places emphasis
on the fact that the video does not actually show Sessler’s group blocking customers
from approaching any vendors. But when determining whether qualified immunity
applies, we are required to “adopt the perspective of a reasonable officer at the scene,
taking into account the information he possessed at the time.” Barton, 820 F.3d at
966 (emphasis added). A reasonable officer at the scene would have received the
vendor’s complaint that Sessler’s group was blocking access to the vendor’s booth.

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Gilliland then complained to Officer Behning about Sessler, stating that “lots
of people and vendors have been getting very upset.” R. Doc. 107, at 7 (quoting R.
Doc. 40, at 0:36–46). Gilliland then asked Officer Behning to remove Sessler and
his group for the following reason:
[W]e had been trying to compromise with them on the location, and we
were continuing to get complaints specifically from vendors. And we
wanted to make sure that, you know, we were upholding, you know,
what we were promising to those vendors and make sure that we had a
good event for the public as well.
R. Doc. 93-1, at 140.
After speaking with Gilliland, Officer Behning approached Sessler and told
him that his group would have to leave the festival’s grounds. Officer Behning told
Sessler that “vendors had ‘taken offense’ to some of [Sessler’s] ‘comments.’” R.
Doc. 96-2, at 4. These comments “had ‘created some conflict’ and had resulted in
some ‘aggravated people.’” Id. Officer Behning told Sessler that the festival’s
organizer did not want Sessler at the festival because the organizer “did not ‘want
that kind of an atmosphere’” and that the organizer wanted Sessler “to ‘leave their
grounds’ and did not want him ‘on their grounds.’” Id. Officer Behning stated that
the festival “was ‘not public’” and that “because the organizer here has got a permit,
he’s got it leased, he’s responsible for it, he controls it.” Id. Officer Behning advised
Sessler “that it was against the law for him to be in the [f]estival area, and that if he
did not leave the [f]estival area, he would be subject to arrest.” Id. at 5. Officer
Behning provided Sessler with no other option but to leave the festival. Id. Officer
Behning advised Sessler “that he could continue his street preaching activities
directly across the street from the Street Fest festival.” R. Doc. 23, at 5. Sessler and
his group complied; they moved to the suggested location and preached
approximately two to three hours. Id.
Construing the facts in the light most favorable to Sessler, I conclude that the
case presents a unique fact pattern for which “existing precedent” would not “have

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placed the . . . constitutional right beyond debate.” See Bus. Leaders In Christ v.
Univ. of Iowa, 991 F.3d 969, 980 (8th Cir. 2021) (quoting Kisela v. Hughes, 584
U.S. 100, 104 (2018)). As in Parks and Bible Believers, there are facts indicating
that Sessler’s removal was based—at least in significant part—on the content of
Sessler’s speech. One vendor stated, “I’m losing business,” and later joined a second
vendor in complaining that Sessler was telling the customers they were “going to
Hell.” R. Doc. 107, at 6 (quoting R. Doc. 40, at 1:04–10). Officer Behing told Sessler
that “[f]estival attendees and vendors had ‘taken offense’ to some of [Sessler’s]
‘comments,’ and that his speech had ‘created some conflict’ and had resulted in some
‘aggravated people.’” Compare R. Doc. 96-2, at 4, with Parks, 395 F.3d at 654 (“The
City offered no explanation as to why the sponsor wanted him removed.”); Bible
Believers, 805 F.3d at 240 (finding a content-based restriction where the officer
stated that “part of the reason they throw this stuff . . . is that you tell them stuff that
enrages them,” and stated, “ya know, apparently what you are saying to them and
what they are saying back to you is creating danger” (alteration in original)).5
But that is not the complete story based on the factual record. And we must
consider all the undisputed facts. The record shows that, as in Startzell, Sessler and
his group caused actual disruption at the festival. First, it is undisputed that Sessler’s
speech was not the catalyst for his initial relocation to another area within the
festival; instead, he was occupying an area “assigned by DDP to a fee-paying
juggling and magic vendor.” R. Doc. 23, at 4.
Second, it is undisputed that Sessler and another adult member of the group
were “using a portable microphone and speaker to amplify their voices.” R. Doc.
5 But unlike Parks and Bible Believers, the vendors’ statements show that their
aggravation was based not just on what Sessler was saying but on the secondary
effects of Sessler’s speech: the deterioration of their customer base. Compare Bible
Believers, 805 F.2d at 239 (“After approximately seven minutes of proselytizing,
some elements of the crowd began to express their anger by throwing plastic bottles
and other debris at the Bible Believers.”). For purposes of my analysis, I will assume
this distinction makes no difference.

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107, at 5 (citing R. Doc. 42, at 3:55–4:00). Officer Smith’s concern about the group
moving to alternative locations was not based upon Sessler’s speech but because of
(1) use of his amplified voice hampering a vendor and (2) “too much foot traffic
moving through [the] area,” resulting in a “choke point.” Id. (quoting R. Doc. 42, at
5:05–33). When the group finally settled on an alternative location, Officer Smith
did not caution Sessler about the content of their speech but its volume, warning
them that “if you’re screaming over the top of [vendors] or impeding their point of
sales at all, then we’re going to have to fix that again.” Id. (alteration in original)
(quoting R. Doc. 42, at 8:45–55).
Third, it is undisputed that Sessler’s speech was not the reason for Officer
Alcala’s rejection of the second location. Officer Alcala explained to Sessler that the
group “could not set up in the street adjacent to the courtyard because those locations
were ‘paid vendor positions.’” Id. (quoting R. Doc. 42, at 13:00–10).
Fourth, Sessler’s loudness was, at least in part, a basis for people’s reactions
and complaints about Sessler. By Sessler’s own admission, “vendors or those
purchasing from the vendors” at the third location “had to . . . walk[] at least 30 feet
to [be] outside of the sound of [Sessler’s] voice.” R. Doc. 91-3, at 113. Sessler also
admitted to seeing one or two individuals “wince[]” when they walked in front of
the amplification equipment. Id. And it was at this third location that one vendor
complained to Officer Behning “that Sessler and his group were ‘standing in front
of our booths,’” thereby blocking customers from accessing them. R. Doc. 107, at 6
(R. Doc. 40, at 0:49–1:04). Complaints about Sessler blocking booths is not related
to Sessler’ speech. 6
The officers had received complaints about Sessler’s disruptive conduct and
the contents of his speech. Would a reasonable officer at the time have been on notice
6 Whether Sessler and his group were actually blocking the booths is not at
issue; what is material is whether the vendor communicated that to Officer Behning
and the conclusion a reasonable officer could draw from that. See Barton, 820 F.3d
at 966.

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that removing Sessler from Street Fest would violate his constitutional rights? In
Startzell, an officer had “admitted there was ‘a potential’ for the crowd to get hostile
based on [the protestors’] message,” but the Third Circuit ultimately concluded that
the officers’ movement of the protestors to a different location was content neutral
because of undisputed evidence that the protestors “had attracted a crowd that was
blocking access to the vendor booths.” 533 F.3d at 200. Lacking precedent from this
circuit, and considering the conclusions reached by our sister circuits based on
discrete facts in Parks, Bible Believers, and Starzell, I conclude that a reasonable
officer would not have been on notice that he was violating Sessler’s constitutional
rights. The inconsistency of their actions with his constitutional rights was not
beyond debate.
ERICKSON, Circuit Judge, dissenting.
The majority holds that “no reasonable trier of fact could conclude from the
summary judgment record that the officers’ actions were anything but content
neutral.” Because I believe a reasonable trier of fact could conclude that the decision
was not content neutral, I respectfully dissent. Officer Behning’s rationale for
removing Sessler, the contemporaneous statements from vendors and customers, and
the dearth of secondary effects of Sessler’s speech demonstrate a question of fact
exists on the issue of content neutrality.
The majority maintains that “this is a case about disruption by a speaker who
had received repeated warnings about his volume.” However, the record shows that
Officer Behning did not mention Sessler’s volume when he asked Sessler to leave
Street Fest. Importantly, one of Sessler’s colleagues offered to turn down the
group’s amplification—an offer that was not accepted by Officer Behning. Instead,
Officer Behning stated that the event’s organizer was unhappy with the atmosphere
Sessler’s group created and that attendees and vendors had taken offense to Sessler’s
message, including telling people they were going to hell.

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In his deposition, Officer Behning could not recall any complaints about
Sessler’s group making physical contact with attendees, blocking foot traffic, or
preventing ingress and egress to the festival, but admitted that a provocative message
causing agitation would be grounds for removal from Street Fest. While some
vendors complained that Sessler’s group was blocking their customers, others
asserted that patrons were avoiding their booths altogether because of the preaching,
which by itself is not a constitutionally sound reason for exclusion. Forsyth Cnty.
v. The Nationalist Movement, 505 U.S. 123, 134 (1992) (stating “[l]isteners’
reaction to speech is not a content-neutral basis for regulation.”). Nothing in the
video that is in the record shows Sessler’s group blocking customers from
approaching any vendors.
Taking the facts in the light most favorable to Sessler and drawing all
reasonable inferences in his favor, as we must at this stage in the litigation, there is
at least a fact question as to whether he was removed because of the content of his
message or because of secondary effects like volume. See Lewis v. Wilson, 253
F.3d 1077, 1081 (8th Cir. 2001) (determining the state’s rejection of an “ARYAN-
1” vanity plate due to its potential to provoke road rage was an unconstitutional
content-based restriction, rather than a valid regulation of the secondary effects of
speech).
The concurrence asserts that even if we assume a constitutional violation
occurred, the Officers were entitled to qualified immunity because Sessler’s rights
were not clearly established. But the right to be free from content-based restrictions
on speech due to listener reactions is clearly established, Forsyth Cnty., 505 U.S. at
134, and the only reasons Officer Behning gave Sessler for his ultimate exclusion
from Street Fest were listener reactions. The additional facts cited by the
concurrence do not alter this conclusion. The Officers’ removal of Sessler from the
first two locations due to foot traffic, noise, and vendor setups—conduct which
remains unchallenged by Sessler—does not cure the constitutional infirmities of the
Officers’ conduct at the third location and ultimate removal of Sessler from the
festival. And the single vendor complaint about Sessler blocking a booth, which

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Officer Behning never mentioned, is belied by the video. In contrast, the “facts
indicating that Sessler’s removal was based—at least in significant part—on the
content of Sessler’s speech,” as noted by the concurrence, were enough to place the
unconstitutionality of the Officers’ actions beyond debate under Forsyth Cnty. See
Scott v. Harris, 550 U.S. 372, 378 (2007) (finding that appellate courts “usually . . .
adopt[] . . . the plaintiff’s version of the facts” when evaluating summary judgment
in the qualified immunity context).
______________________________

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