City Union Mission, Inc. v. Sheriff Mike Sharp; Jackson County Sheriff’s Office; Jackson County, Missouri

United States Court of Appeals
For the Eighth Circuit
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No. 20-3435
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City Union Mission, Inc.
Plaintiff - Appellant
v.
Sheriff Mike Sharp; Jackson County Sheriff’s Office; Jackson County, Missouri
Defendants - Appellees
State of Missouri
Intervenor - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 23, 2021
Filed: June 10, 2022
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
City Union Mission is a Kansas City, Missouri nonprofit organization located
near Margaret Kemp Park that provides food, shelter, employment, and a Christian
discipleship program to poor and homeless individuals. A Missouri law prohibits

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persons convicted of certain sex offenses (Affected Persons) from being present in
or loitering within 500 feet of any public park containing playground equipment.
After the Jackson County Sheriff’s Office informed City Union Mission that the
statute prohibited some of its guests from being present within 500 feet of the park,
even when receiving City Union Mission’s charitable services, City Union Mission
filed suit, bringing 12 claims against the Jackson County Sheriff’s Office, Jackson
County, and Sheriff Mike Sharp in his official capacity (collectively, the County),
as well as one claim against Sheriff Sharp in his individual capacity. The State of
Missouri (the State) intervened, and the district court1 ultimately dismissed City
Union Mission’s 12 claims against the County and granted summary judgment on
City Union Mission’s claim against Sheriff Sharp in his individual capacity, finding
that Sheriff Sharp was entitled to qualified immunity. City Union Mission appeals,
and having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
City Union Mission is a faith-based nonprofit organization that has operated
for over nine decades and serves Kansas City’s poorest individuals. Its services
include providing meals, overnight shelter, and occasionally, employment. City
Union Mission also offers a one-year, biblically based discipleship and rehabilitation
program called the Christian Life Program (CLP) for men seeking help with life
skills and addiction. City Union Mission occupies several properties, with a shelter
at 1108 East 10th Street, the CLP program at 1111 East 10th Street, and its
headquarters at 1100 East 11th Street. Margaret Kemp Park, a park containing
playground equipment, is also located on 10th Street and is within 500 feet of City
Union Mission’s shelter and headquarters locations.
Missouri law provides in relevant part that “[a]ny person who has been found
guilty of [certain enumerated sex crimes] . . . shall not knowingly be present in or
1 The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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loiter within five hundred feet of any real property comprising any public park with
playground equipment . . . if such facilities exist for the primary use of recreation
for children.” Mo. Rev. Stat. § 566.150. Some of City Union Mission’s guests are
Affected Persons. In May 2016, the Jackson County Sheriff’s Office began
interpreting this statutory language as prohibiting Affected Persons from being
present at any of City Union Mission’s 3 locations because 2 of those locations are
within 500 feet of Margaret Kemp Park (the May 2016 Position). City Union
Mission alleged in its complaint that the Jackson County Sheriff’s Office
“prohibited . . . Affected Persons [from] be[ing] present on any [City Union] Mission
land . . . , even land outside the [500-foot] Zone,” and because of the May 2016
Position, City Union Mission “lost use of its facilities, as it could not minister to
Affected Persons on [City Union] Mission land” and “was denied the use of its
facilities, and prevented from offering services or help to Affected Persons, because
[City Union] Mission could be charged with conspiracy or aiding and abetting a
violation of § 566.150.” R. Doc. 1, at 10.
In September 2016, an officer from the Jackson County Sheriff’s Office
emailed City Union Mission, explaining that the Jackson County Sheriff’s Office
had revised its May 2016 Position and would now enforce the statute only against
Affected Persons present within 500 feet of Margaret Kemp Park, allowing City
Union Mission to provide services to Affected Persons at its 1111 East 10th Street
location but not at its other 2 locations. See R. Doc. 1, at 11. In February 2017, an
officer from the Jackson County Sheriff’s Office alerted City Union Mission that
Affected Persons were prohibited from maintaining employment at the 1108 East
10th Street location. See R. Doc. 1, at 11-12 (alleging Jackson County Sheriff’s
Office indicated that it “would issue a citation if the matter were not ‘cleared up’”).
In its complaint, City Union Mission alleged that because of the Jackson County
Sheriff’s Office’s interpretations, it had to reassign an Affected Person employed at
the 1108 East 10th Street location, post signs in its facilities alerting Affected
Persons of the Jackson County Sheriff’s Office’s interpretation, “[o]pen its doors for
‘sweeps’ by the Sheriff’s deputies,” turn away Affected Persons seeking its services,
and discontinue services for Affected Persons. See R. Doc. 1, at 12. Although City

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Union Mission asked the Jackson County Sheriff’s Office to reconsider its
interpretations and promise not to prosecute City Union Mission for aiding and
abetting Affected Persons in violating the statute, the parties could not reach a
resolution.
City Union Mission brought 12 claims against the County. Claims 1-6 were
brought pursuant to 42 U.S.C. § 1983, asserting: a First Amendment Free Exercise
Clause claim (Claim 1); a void-for-vagueness challenge pursuant to the First and
Fourteenth Amendments (Claim 2); an as-applied challenge pursuant to the First and
Fourteenth Amendments (Claim 3); a First Amendment Freedom of Assembly and
Association Clauses claim (Claim 4); a First Amendment Establishment Clause
claim (Claim 5); and a First and Fourteenth Amendment Free Exercise, Due Process,
and Equal Protection Clauses claim and a First and Fourteenth Amendment
discriminatory targeting claim (Claim 6). In Claims 7-12, City Union Mission
brought: a Religious Land Use and Institutionalized Persons Act (RLUIPA)
“substantial burden” claim (Claim 7); a RLUIPA “equal terms” claim (Claim 8); a
RLUIPA “discrimination” claim (Claim 9); a RLUIPA “unreasonable limitations”
claim (Claim 10); a Missouri Religious Freedom Restoration Act (Missouri RFRA)
claim (Claim 11); and a claim under Article I, §§ 2, 5, 9, and 10 of the Missouri
Constitution (Claim 12). City Union Mission also brought a claim against Sheriff
Sharp in his individual capacity, alleging that Sheriff Sharp violated the First
Amendment Free Exercise Clause (Claim 13). City Union Mission sought a
preliminary injunction against all defendants, as well as a declaratory judgment that
the statute was unconstitutionally vague, violated state or federal law, or was
unconstitutional as applied to City Union Mission and its employees and guests. In
Claim 13, City Union Mission sought nominal and actual damages from Sheriff
Sharp individually.
Because the constitutionality of the state statute was called into question, the
State intervened and moved to dismiss Claims 1-12 pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.
The County similarly moved to dismiss Claims 1-13. The district court granted the

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State’s motion to dismiss, explaining that § 566.150 does not proscribe City Union
Mission’s conduct and that City Union Mission therefore failed to state a claim upon
which relief could be granted. It denied both the County’s motion to dismiss and
City Union Mission’s request for a preliminary injunction as moot. City Union
Mission then filed a motion with the district court requesting that the district court
amend its judgment or, alternatively, reconsider. The district court granted City
Union Mission’s motion to reconsider. In its amended order, the district court
reaffirmed its grant of the State’s motion to dismiss Claims 1-12, again denied the
County’s motion to dismiss as moot, but granted City Union Mission’s motion for a
preliminary injunction enjoining all defendants from enforcing or threatening to
enforce § 566.150 against City Union Mission or Affected Persons. At some point
during the pendency of this lawsuit, Sheriff Sharp resigned. After Sheriff Sharp’s
resignation, City Union Mission filed a motion with the district court asking the
district court to convert the preliminary injunction against the defendants into a
permanent injunction against Sheriff Sharp and Jackson County. The district court
denied this motion. See R. Doc. 113, at 4-7.
Following discovery, Sheriff Sharp filed a motion for summary judgment on
City Union Mission’s claim for damages against him in his individual capacity,
arguing that he was entitled to qualified immunity. The district court found that
Sheriff Sharp was entitled to qualified immunity, explaining that, at the time of
enforcement of the statute, there was no clearly established constitutional right for
City Union Mission to provide religious services to Affected Persons within 500 feet
of a park. See R. Doc. 135, at 5. The district court also explained that “there is no
basis to conclude that” Affected Persons receiving City Union Mission’s services
were not loitering. See R. Doc. 135, at 5.
II.
City Union Mission now appeals the district court’s dismissal of its claims
against the County and its grant of summary judgment in favor of Sheriff Sharp.

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A.
We first consider whether the district court erred in dismissing City Union
Mission’s 12 claims against the County, in which City Union Mission sought a
declaration that § 566.150 is unconstitutional as applied and that § 566.150 violates
the RLUIPA, Missouri’s RFRA, and the Missouri Constitution, as well as permanent
injunctive relief enjoining Sheriff Sharp and Jackson County from “enforcing or
threatening to enforce” § 566.150 against City Union Mission or Affected Persons.2
We apply a de novo standard of review, accept City Union Mission’s factual
allegations found in its complaint as true, and resolve all reasonable inferences in
favor of City Union Mission. See Park Irmat Drug Corp. v. Express Scripts Holding
Co., 911 F.3d 505, 512 (8th Cir. 2018).
“To survive a motion to dismiss, a complaint must 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, 678 (2009) (citation omitted). A claim is facially
plausible where the complaint contains enough facts such that the court can “draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” In re Pre-Filled
Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (alteration in
original) (quoting Iqbal, 556 U.S. at 678). This is a “context-specific task” in which
we must draw on our “judicial experience and common sense.” See McDonough v.
Anoka Cnty., 799 F.3d 931, 945 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 679).
First, we conclude that City Union Mission’s claims seeking broad injunctive
relief prohibiting Sheriff Sharp and Jackson County from “enforcing or threatening
to enforce” § 566.150 against City Union Mission or Affected Persons are moot.
2 At oral argument, City Union Mission abandoned its claim that the statute is
unconstitutional on its face.

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Sheriff Sharp has resigned and is no longer in a position to interpret and enforce
§ 566.150. Further, at oral argument, the County took the position that it will not
revive Sheriff Sharp’s interpretation of § 566.150 or prosecute Affected Persons for
seeking City Union Mission’s services. City Union Mission does not contend that
the County’s concession should not be accepted. Because “[f]ederal courts are not
empowered ‘to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in the case
before it,’” we cannot issue the injunctive relief City Union Mission requests. See
Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004) (citation
omitted). The claims for injunctive relief should be dismissed.
Further, all parties agree that City Union Mission does not provide services in
Margaret Kemp Park, so the only language in § 566.150 potentially proscribing City
Union Mission’s activities is that which prohibits Affected Persons from knowingly
loitering within 500 feet of a park. See Mo. Rev. Stat. § 566.150 (prohibiting
Affected Persons from “knowingly be[ing] present in or loiter[ing] within five
hundred feet of . . . any public park with playground equipment”). However, as the
district court correctly noted, City Union Mission failed to allege in its complaint
that Affected Persons receiving its services are “loitering.” In fact, in its complaint,
City Union Mission expressly disclaimed that Affected Persons are loitering, stating:
“Plaintiff [City Union] Mission’s guests and clients, including Affected Persons,
while receiving or providing ministry services on [City Union] Mission premises, or
travelling to or from the [City Union] Mission for such ministry services, are not . . .
‘loitering’ within 500 feet of the park.” See R. Doc. 1, at 12. Further, in its briefing
before this Court, City Union Mission argued that “[c]learly established law showed
that persons availing themselves of ministry services or employment opportunities
at City Union Mission were not loitering,” see Appellant Br. 39, and at oral
argument, City Union Mission, the County, and the State all agreed that when
§ 566.150 is properly interpreted, Affected Persons are not “loitering” when they are
visiting City Union Mission’s properties to obtain shelter, worship, work, or
otherwise receive City Union Mission’s charitable services, rendering § 566.150
inapplicable. Because City Union Mission has not alleged—in fact, has expressly

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and repeatedly disavowed—that the statute applies to it, we cannot see how it has
stated a claim capable of surviving a motion to dismiss. As the district court
explained, “[i]n the absence of factual allegations giving rise to the reasonable
inference that Affected Persons seeking [City Union] Mission’s services within 500
feet of a park with playground equipment are loitering, [City Union] Mission does
not state a claim to challenge the constitutionality of § 566.150’s loitering
provision.” See R. Doc. 63, at 6. We agree and affirm the district court’s dismissal
of City Union Mission’s remaining claims against the County.
B.
Having resolved Claims 1-12, we move to the district court’s grant of
summary judgment in favor of Sheriff Sharp on Claim 13, applying a de novo
standard of review. See Dowden v. Cornerstone Nat’l Ins. Co., 11 F.4th 866, 872
(8th Cir. 2021). City Union Mission brought a First Amendment claim against
Sheriff Sharp pursuant to § 1983, alleging Sheriff Sharp violated its First
Amendment right to engage in religious ministry and, in addition to the injunctive
relief sought against all defendants, also sought nominal and actual damages.
Following discovery, Sheriff Sharp filed a motion for summary judgment and argued
that he was entitled to summary judgment based on qualified immunity. The district
court granted summary judgment, resolving its qualified immunity analysis on the
clearly established prong and finding that Sheriff Sharp was entitled to qualified
immunity. See R. Doc. 135, at 5. We agree.
“In determining whether an officer is entitled to qualified immunity, we apply
the familiar two-prong framework: first, ‘whether the plaintiff has stated a plausible
claim for violation of a constitutional or statutory right,’ and second, ‘whether the
right was clearly established at the time of the alleged infraction.’” Garang v. City
of Ames, 2 F.4th 1115, 1121 (8th Cir. 2021) (citation omitted). We are free to decide
which prong to address first, and unless we find both that the plaintiff has stated a
plausible claim for violation of a constitutional or statutory right and the right was

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clearly established at the time of the infraction, the defendant-officer is entitled to
qualified immunity. See Nord v. Walsh Cnty., 757 F.3d 734, 738-39 (8th Cir. 2014).
Here we begin with the second prong, asking whether, in 2016, City Union
Mission’s right to provide services to Affected Persons in a building located within
500 feet of a park with playground equipment was clearly established “such that
‘every reasonable official would understand that what he is doing is unlawful.’”
Ness v. City of Bloomington, 11 F.4th 914, 921 (8th Cir. 2021) (citation omitted).
When determining whether a right is clearly established, we do not view the law
with a high level of generality but instead “look for a controlling case or a robust
consensus of cases of persuasive authority. There need not be a prior case directly
on point, but ‘existing precedent must have placed the statutory or constitutional
question beyond debate.’” See Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th
Cir. 2020) (citations omitted).
City Union Mission does not direct us to any case that clearly establishes its
constitutional right to provide services to Affected Persons within 500 feet of a park
with playground equipment. In its brief in this Court, City Union Mission begins by
citing two Supreme Court cases, Sause v. Bauer, 138 S. Ct. 2561 (2018), and Nieves
v. Bartlett, 139 S. Ct. 1715 (2019), for the proposition that “[t]he right to engage in
First Amendment religious activity in a private building . . . is clearly established.”
See Appellant Br. 39. City Union Mission then directs us to cases like City of
Chicago v. Morales, 527 U.S. 41 (1999), and Fields v. City of Omaha, 810 F.2d 830
(8th Cir. 1987), for the proposition that loitering, absent any criminal activity, is
constitutionally protected. However, these cases are not instructive. We are not
tasked with deciding whether the right to engage in First Amendment religious
activity in a private building or to loiter is clearly established. Instead, the at-issue
right is more complex: Section 566.150 is intended to protect children from Affected
Persons by prohibiting Affected Persons from loitering within 500 feet of Margaret
Kemp Park; Affected Persons wish to engage in religious activity and to receive
services at City Union Mission; and two of City Union Mission’s properties are
within 500 feet of Margaret Kemp Park. Sheriff Sharp was necessarily required to

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weigh these competing interests and determine how to apply § 566.150, and we can
find no “controlling case” or “robust consensus of cases of persuasive authority” that
would have notified Sheriff Sharp that Affected Persons had a clearly established
right to seek City Union Mission’s services in a building located within 500 feet of
a park containing playground equipment. See Thurmond, 972 F.3d at 1012 (citation
omitted); see also Ness, 11 F.4th at 921 (requiring the right to be clearly established
“such that ‘every reasonable official would understand that what he is doing is
unlawful’” (citation omitted)). We do not decide whether City Union Mission has
stated a plausible claim for a violation of a constitutional right because, even
assuming that it has, Sheriff Sharp is nevertheless entitled to qualified immunity.
See Nord, 757 F.3d at 738-39. And, finding that Sheriff Sharp is entitled to qualified
immunity, we affirm the district court’s grant of summary judgment.3
III.
For the foregoing reasons, we affirm.
KOBES, Circuit Judge, concurring in part and concurring in the judgment.
The Supreme Court has repeatedly held that “loitering bans” are
unconstitutional under the Due Process Clause. See, e.g., Papachristou v. City of
3 In its argument in this Court, City Union Mission does not focus on the May
2016 Position, under which Sheriff Sharp prohibited all Affected Persons from
entering all City Union Mission properties, even the property located further than
500 feet from Margaret Kemp Park. City Union Mission also does not reframe the
question posed by the district court during its qualified immunity analysis: whether
there was a clearly established constitutional right to free exercise within 500 feet of
Margaret Kemp Park. See Appellant Br. 37-38. Instead, City Union Mission argues
only that it “had a clearly established constitutional right . . . to engage in free
exercise of religion within 500 feet of a park with playground equipment.”
Appellant Br. 37. Therefore, we consider only whether the right to provide services
to Affected Persons within 500 feet of Margaret Kemp Park was clearly established,
not whether the right to provide services to Affected Persons further than 500 feet
from Margaret Kemp Park was clearly established.

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Jacksonville, 405 U.S. 156, 171 (1972). It makes no difference that Missouri’s
loitering ban only applies to certain sex offenders, see City of Chicago v. Morales,
527 U.S. 41, 73 (1999) (plurality opinion) (enjoining loitering law for gang
members), or that the law is geographically limited, see Bell v. City of Winter Park,
745 F.3d 1318, 1325 (11th Cir. 2014) (holding that fifty-foot buffer zone that
prohibited loitering was unconstitutional). And, contrary to the majority, I don’t
think the fact that City Union Mission has “expressly and repeatedly disavowed”
that its members were loitering means it can’t challenge the statute. The very reason
that loitering bans are unconstitutional is that no one can give a precise definition of
“loitering,” allowing law enforcement to perform “arbitrary and erratic arrests and
convictions.” Papachristou, 405 U.S. at 162.
I concur in the judgment, however, because I agree that City Union Mission’s
claim is moot. City Union Mission requested an injunction preventing Jackson
County from enforcing § 566.150 against its members while they are participating
in religious services. But as the majority notes, both the County and the State have
expressly stated that the law doesn’t apply to City Union Mission’s members during
worship. Additionally, both the County and the State have said they have no plans
to enforce the law against City Union Mission. And Sheriff Sharp, who led the initial
“sweep” of arrests at City Union Mission, has since left office. Accordingly, the
unconstitutional conduct alleged by City Union Mission “could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 190 (2000). City Union Mission’s requested injunctive relief is
therefore moot. See Prowse v. Payne, 984 F.3d 700, 703 (8th Cir. 2021) (requested
injunctive relief was moot when prison official expressly stated that prisoner would
continue to receive hormone therapy).4
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4 I join the majority’s qualified immunity analysis in full.

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