Sean Stearns v. Don Wagner, Board of Police Commissioners of Kansas City/ Commissioner

United States Court of Appeals
For the Eighth Circuit
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No. 23-3448
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Sean Stearns
Plaintiff - Appellant
v.
Don Wagner, Board of Police Commissioners of Kansas City/ Commissioner
Defendant
Cathy Dean, Commissioner; Mark Tolbert, Commissioner; Quinton Donald Lucas,
Mayor/ Board Member
Defendants - Appellees
Richard Smith, Police Chief of Kansas City Missouri; David V. Kenner, Board
Member; City of Kansas City, Missouri
Defendants
Dawn Cramer, Commissioner; Jeffrey Spire, Trooper
Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 26, 2024
Filed: December 4, 2024
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Sean Stearns appeals the dismissal of his federal and Missouri civil rights
claims on summary judgment. We affirm.
I. Background
After the death of George Floyd, several large-scale protests occurred in
Kansas City, Missouri. On May 30, 2020, the Kansas City Police Department
(“KCPD”) requested assistance from the Missouri State Highway Patrol (“MSHP”)
to help keep the peace. That evening, the protest became violent. Protestors threw
water bottles at police, broke store and car windows, looted stores, and set fire to a
police car. Law enforcement used CS (tear gas) canisters to disperse protestors.
Some protestors picked up the canisters and threw them back at the officers.
That evening, MSHP Sergeant Jeffrey Spire served as the “grenadier” for a
squad of state troopers. At various points between 10:10 p.m. and 12:34 a.m.
Sergeant Spire deployed CS and white smoke hand grenades, bean bag rounds, and
CS and white smoke projectiles.
This appeal concerns a series of events that occurred between 11:30 p.m. and
midnight. The parties disagree on the crowd’s demeanor at that time, but, at a
minimum, they agree that Sergeant Spire and his unit performed crowd control by
deploying handheld smoke grenades. Stearns admits that law enforcement
“effectively and safely” used these handheld munitions to “start[] to control the
protestors.” Because of these efforts, according to Stearns, “the crowd had already
begun dispersing.” Around 11:47 p.m., once “the crowd was outside throwing
range,” Sergeant Spire skipped two projectiles off the ground towards the retreating
crowd. Though the parties dispute whether Sergeant Spire should have used this

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“skipping” technique, they agree that Sergeant Spire “did not fire at a specific
person, but indiscriminately fired into a group of people.”
Stearns and his girlfriend participated in the protests that day. They first
arrived in the early afternoon, left for dinner, and returned around 9:00 or 10:00 p.m.
Around 11:30 p.m., Sergeant Spire and his unit attempted to disperse the crowd that
Stearns and his girlfriend had joined. As the crowd began to retreat, Stearns’s
girlfriend was kneed by a fellow protestor and sustained a head injury. Around 11:45
p.m., as Stearns attended to his girlfriend, an object struck his left eye and caused
extensive damage that eventually resulted in a complete loss of vision in that eye.
Stearns contends that this object was one of the projectile shells that Sergeant Spire
had skipped off the ground.
Stearns sued Sergeant Spire under 42 U.S.C. § 1983 for unlawful retaliation
in violation of the First Amendment and for excessive use of force in violation of
the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.
He also sued Sergeant Spire under Missouri law and brought a Monell claim against
the Board of Police Commissioners. The district court1 granted summary judgment
for the defendants.
II. Discussion
Stearns appeals the district court’s grant of summary judgment. He argues
that Sergeant Spire was not entitled to qualified immunity and that the district court
erred in finding that he could not establish a Monell claim. He also argues that the
district court erred in dismissing his claims under Missouri law.
We review a district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party—here, Stearns—and
1 The Honorable Howard F. Sachs, United States District Judge for the
Western District of Missouri.

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giving him the “benefit of all reasonable inferences.” See De Mian v. City of St.
Louis, Mo., 86 F.4th 1179, 1182 (8th Cir. 2023). Summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We first address whether Sergeant Spire is entitled to qualified immunity on
Stearns’s § 1983 claims. Stearns alleges that Sergeant Spire retaliated against him
in violation of the First Amendment and used excessive force in violation of the
Fourth and Fourteenth Amendments. “Qualified immunity shields a public official
from suit for civil damages when his conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Bernini v. City of St. Paul, 665 F.3d 997, 1002 (8th Cir. 2012) (internal quotation
omitted). Therefore, qualified immunity applies unless Sergeant Spire violated a
constitutional right that was clearly established at the time of violation. See id.
To prove his First Amendment retaliation claim, Stearns must demonstrate
(1) that he engaged in a protected First Amendment activity, (2) that Sergeant Spire
“took an adverse action that would chill a person of ordinary firmness from
continuing in the protected activity,” and (3) that retaliatory animus was a “but-for
cause” of his injury. See Molina v. City of St. Louis, Mo., 59 F. 4th 334, 338 (8th
Cir. 2023) (internal quotations and alterations omitted). “The causal connection is
generally a jury question unless the question is so free from doubt as to justify taking
it from the jury.” De Mian, 86 F.4th at 1182 (internal quotation and alterations
omitted).
Because “more than a temporal connection is required to present a genuine
factual issue on retaliation,” “a plaintiff must demonstrate that [he] was singled out
due to [his] protected expression, whether as an individual or as part of a group.” Id.
For example, multiple reporters were “singled out” when police deployed tear gas at
them but not at the other people in the area. See Quraishi v. St. Charles Cnty, Mo.,
986 F.3d 831, 838 (8th Cir. 2021). And, when no one else was in the area and the
protest had been dispersed an hour earlier, a group of eleven people was singled out

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by police who mocked and deployed tear gas at them as they attempted to peacefully
depart. See Green v. City of St. Louis, Mo., 52 F.4th 734, 740 (8th Cir. 2022). But
an officer did not “single out” anyone when he used pepper spray indiscriminately
as a crowd control technique. See Aldridge v. City of St. Louis, Mo., 75 F.4th 895,
900 (8th Cir. 2023) (“One cannot simultaneously single out the appellants and
‘indiscriminately’ spray the crowd.”); see also De Mian, 86 F.4th at 1182
(“indistinguishable from Aldridge”). And officers did not single out anyone when
they deployed tear gas against a small group who had left a violent protest to
“reassemble” peacefully in a non-protestor’s yard. See Molina, 59 F.4th at 340-41
(reasoning that reasonable officers might not “have known the gathering was a
protected assembly, particularly when they were dodging rocks and bottles just a
few minutes earlier”).
Here, Stearns’s First Amendment retaliation claim fails because, viewing the
record in the light most favorable to him, he fails to demonstrate a causal connection
between his injury and a retaliatory animus. Unlike the police in Quraishi, Sergeant
Spire did not single out a particular group of people. And unlike the relatively small
group in Green who were attempting to peacefully depart the scene an hour after a
protest had ended, Stearns was in the midst of a crowd where—he admits—only
minutes before officers were required to deploy “handheld munitions” to
“effectively and safely start[] to control the protestors.” This case is closer to
Molina, where officers “were dodging rocks and bottles just a few minutes earlier”
than to Green, where the protest had dispersed an hour earlier. See Molina, 59 F.4th
at 341. And, like the officers in Aldridge and De Mian, Stearns concedes that
Sergeant Spire “did not fire at a specific person, but indiscriminately fired into a
group of people.” “One cannot simultaneously single out the appellants and
‘indiscriminately’ spray the crowd.” Aldridge, 75 F.4th at 900. Thus, Stearns has
failed to allege that Seargent Spire violated a constitutional right. Sergeant Spire is
therefore entitled to qualified immunity on Stearns’s First Amendment retaliation
claim.

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Stearns also appeals the dismissal of his excessive force claim under the
Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.
With respect to his Fourth Amendment claim, Stearns fails to “provide a meaningful
explanation of the argument” and neglects any “citation to relevant authority.” See
Waters v. Madson, 921 F.3d 725, 744 (8th Cir. 2019). Therefore, his Fourth
Amendment claim is waived.
As to his Fourteenth Amendment excessive force claim, to prove a violation
of substantive due process, Stearns “must show (1) that [Sergeant Spire] violated
one or more fundamental constitutional rights, and (2) that the conduct of [Sergeant
Spire] was shocking to the contemporary conscience.” See Truong v. Hassan, 829
F.3d 627, 631 (8th Cir. 2016). “Proof of intent to harm is usually required,” though,
“in some cases, proof of deliberate indifference” may satisfy the standard. Id. “The
lower deliberate indifference standard is sensibly employed only when actual
deliberation is practical.” Id. (internal quotation omitted) (citing cases where “prison
officials have the benefit of time to make unhurried judgments regarding inmate
welfare”). “Only the most severe violations of individual rights that result from the
brutal and inhumane abuse of official power rise” to the “conscience-shocking
level.” White v. Smith, 696 F.3d 740, 757-58 (8th Cir. 2012).
Here, Stearns argues that Sergeant Spire’s deployment of projectile shells
after the crowd was beyond throwing distance was “a brutal and inhumane abuse of
official power.” But—even assuming that Sergeant Spire used crowd control
measures longer and more aggressively than was required2—there is no evidence
that Sergeant Spire intended harm. And the lower “deliberate indifference” standard
does not apply because Sergeant Spire lacked “the benefit of time to make [an]
unhurried judgment[].” See Truong, 829 F.3d at 631. Altogether, Sergeant Spire’s
actions fall far short of shocking the conscience. Therefore, Stearns has not shown
2 We need not decide whether Sergeant Spire was reasonable to deploy the
projectile shells and thus do not address the defendants’ contentions that the
protestors attacked the police with firework mortars, requiring crowd control from
greater distances.

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a substantive due process violation and Sergeant Spire is entitled to qualified
immunity on Stearns’s Fourteenth Amendment claim.
We next address the denial of Stearns’s Monell claim against the Police Board.
“[A]bsent a constitutional violation” by an employee, “there can be no § 1983 or
Monell liability.” Whitney v. City of St. Louis, Mo., 887 F.3d 857, 861 (8th Cir.
2018). Because Stearns’s constitutional rights were not violated, his Monell claim
fails.
Finally, we address the dismissal of Stearns’s state law claims. After
dismissing the federal claims, the district court dismissed all state law claims without
prejudice. We review a district court’s decision whether to exercise supplemental
jurisdiction for abuse of discretion. See Aldridge, 75 F.4th at 901. “In the usual case
in which all federal-law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Id. (alterations omitted).
Here, Stearns points to no reason to second guess the district court’s decision, and
we can detect no abuse of discretion.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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