Raymond Redlich; Christopher Ohnimus v. City of St. Louis, a municipality and political subdivision of the State of Missouri

United States Court of Appeals
For the Eighth Circuit
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No. 21-2894
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Raymond Redlich; Christopher Ohnimus
Plaintiffs - Appellants
v.
City of St. Louis, a municipality and political subdivision of the State of Missouri
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 16, 2022
Filed: October 12, 2022
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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ,1 District Judge.
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MENENDEZ, District Judge.
Appellants, Pastor Raymond Redlich and Christopher Ohnimus,
commendably distribute food to homeless people in the City of St. Louis and wish
to continue doing so as part of their charitable and religious practice. In October
1 The Honorable Katherine M. Menendez, United States District Judge for the
District of Minnesota, sitting by designation.

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2018, a St. Louis police officer observed Appellants distributing bologna sandwiches
and issued each a citation for violating a city ordinance requiring a permit for the
distribution of “potentially dangerous food.” Although the City declined to prosecute
the citations, Pastor Redlich and Mr. Ohnimus filed this suit, claiming that the City’s
enforcement of the ordinance violated their federal and state constitutional rights and
Missouri statutes. The district court2 granted the City’s motion for summary
judgment and declined to exercise supplemental jurisdiction over the state claims.
We affirm.
I.
Pastor Redlich and Mr. Ohnimus are Christians who both live and work in the
City of St. Louis. Pastor Redlich is the Vice President of the New Life Christian
Evangelical Center, and Mr. Ohnimus is his assistant. Both Pastor Redlich and
Mr. Ohnimus believe it is their religious duty to provide food, drink, and spiritual
support for those in need, and particularly for the City’s homeless population.
On October 31, 2018, Appellants distributed bologna sandwiches and bottled
water to hungry people that they encountered in St. Louis. Though they sometimes
also shared religious literature with the recipients of the food, they did not do so that
day. St. Louis Police Officer Stephen Ogunjobi saw Appellants passing out the
sandwiches and approached them. Officer Ogunjobi cited Appellants for distributing
food without a permit in violation of the St. Louis Food Code. In his incident report,
Officer Ogunjobi noted that Appellants passed out sandwiches stored in a cooler
with no ice.
2 Nannette A. Baker, United States Magistrate Judge for the Eastern District of
Missouri, to whom the case was referred for final disposition by consent of the
parties pursuant to 28 U.S.C. § 636(c).

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At the time Appellants received these citations, St. Louis Ordinance
No. 68597 (“the Ordinance”) contained the provisions relevant to this appeal.3 The
Ordinance places restrictions on the distribution of “potentially hazardous food.”4
For example, “[t]he preparation or service of . . . sandwiches containing MEAT,
POULTRY, EGGS, or FISH is prohibited” by temporary food establishments. For
those seeking to distribute other potentially hazardous foods on a temporary basis, a
temporary food permit is required, which costs $50 for each day of operation, and
must be applied for more than 48 hours before the event. In addition, the operation
must have a hand-washing station for employees; several food-grade washtubs; and
enough potable water available for food preparation, cleaning of utensils and other
equipment, and for hand washing.
Consistent with the instructions on their citations, Appellants appeared at the
City’s municipal courthouse on December 4, 2018. They met with attorneys in the
City Counselor’s Office, who informed them the City would not pursue the citations.
3 The Ordinance was adopted March 16, 2010, and remained in effect until
April of 2020, when it was repealed and superseded by a new ordinance.
4 The term “potentially hazardous food” in the Ordinance is drawn from the
2009 Edition of the National Food Code published by the U.S. Department of Health
and Human Services, Public Health Service, and Food and Drug Administration.
“‘Potentially hazardous food’ means a food that requires time/temperature control
for safety (TCS) to limit pathogenic microorganism growth or toxin formation,” and
specifically includes raw or heat-treated animal foods. FDA Food Code 2009, Ch. 1,
§ 1-201.10(B) (Potentially Hazardous Food definition, subparagraphs (1)–(2)(a)). It
excludes, for example, hard-boiled eggs in the shell, foods packaged in hermetically
sealed containers and prepared under sterile conditions, and foods that have been
handled to prevent the growth of toxins and microorganisms. Id. (Potentially
Hazardous Food definition, subparagraph (3)). More recently, in the 2017 Edition of
the National Food Code, the term “potentially hazardous foods” was replaced with
the term “time/temperature control for safety food,” but its meaning remains the
same. FDA Food Code 2017, Ch. 1, § 1-201.10(B) (Time/Temperature Control for
Safety Food definition).

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Later that day, the City’s Public Safety Director publicly stated that issuing citations
to those feeding the homeless was not a priority.
Just over one month after the City elected not to pursue the citations,
Appellants filed this action. They alleged that, as applied to them, the St. Louis Food
Code violates their First Amendment rights under the Free Exercise and Free Speech
Clauses and sought both declaratory and prospective injunctive relief. While the
litigation was pending in the district court, the City amended the St. Louis Food
Code on two occasions. First, on April 18, 2020, the City enacted Ordinance
No. 71106 (“the 2020 Ordinance”). The 2020 Ordinance introduced a Charitable
Feeding Temporary Food Permit, at a reduced cost, and a Temporary Food Safety
Training Program designed for those who wished to help feed the public free of
charge. Just after the briefing was complete on the parties’ summary judgment
motions, the City amended the St. Louis Food Code again, enacting Ordinance
No. 71324 (“the 2021 Ordinance”) on February 23, 2021. The 2021 Ordinance,
which remains in effect today, adopted several chapters of the 2017 Edition of the
National Food Code, and retained the Charitable Feeding Temporary Food Permit
and Temporary Food Safety Training Program.
The district court granted the City’s motion for summary judgment and denied
the Appellants’ cross-motion for partial summary judgment. Redlich v. City of St.
Louis, 550 F. Supp. 3d 734 (E.D. Mo. 2021). The court found that although the 2020
and 2021 amendments to the St. Louis Food Code post-dated Appellants’ conduct,
their claims were not moot because there remained “a credible threat of present or
future enforcement against [Appellants].” Id. at 749. However, the court concluded
that Appellants could not prevail on their First Amendment free-exercise claim, id.
at 750–54, speech claim, id. at 754–59, or hybrid-rights claim, id. at 761–62. This
appeal followed.5
5 The district court also granted summary judgment to the City on Appellants’
claim that the regulation violated their freedom to associate under the First
Amendment and their right to equal protection under the Fourteenth Amendment,

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II.
“We review the district court’s grant of summary judgment de novo, drawing
all reasonable inferences, without resort to speculation, in favor of the non-moving
party.” Wilson v. Miller, 821 F.3d 963, 967 (8th Cir. 2016) (quoting Carrington v.
City of Des Moines, 481 1046, 1049 (8th Cir. 2007)). “Summary judgment is
appropriate only if the moving party satisfies its burden of demonstrating that no
genuine issues of material fact remain for trial.” Murchison v. Rogers, 779 F.3d 882,
887 (8th Cir. 2015).
A.
Pastor Redlich and Mr. Ohnimus appeal the summary judgment decision in
favor of the City on their claim that the Ordinance violates their rights under the Free
Speech Clause of the First Amendment. They assert that the City’s enforcement of
the Ordinance against them interferes with their ability to communicate their
message about God’s love and concern for those in need. We affirm the district
court’s disposition of this claim.
The First Amendment, applicable to the states through the Fourteenth
Amendment, provides that “Congress shall make no law . . . abridging the freedom
of speech.” U.S. Const. amend. I. In addition to protecting “the spoken or written
word, . . . conduct may be ‘sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth Amendments.’” Texas v. Johnson,
491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).
id. at 759–61, but Appellants have expressly waived those issues on appeal.
Appellants’ Br. 24. The district court’s determination that it should not exercise
supplemental jurisdiction over the Appellants claims under the Missouri
Constitution and the Missouri Religious Freedom Restoration Act is also not before
us. Id. at 763.

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To decide whether conduct is sufficiently imbued with communicative
elements to be protected, courts ask “whether ‘[a]n intent to convey a particularized
message was present and [whether] the likelihood was great that the message would
be understood by those who viewed it.’” Id. (alterations in original) (quoting Spence,
418 U.S. at 410–11). A person’s intent to express an idea through conduct cannot
alone bring that conduct within the First Amendment’s protection of speech.
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65–66 (2006)
(citing United States v. O’Brien, 391 U.S. 367, 376 (1968)); Adam & Eve Jonesboro,
LLC v. Perrin, 933 F.3d 951, 957 (8th Cir. 2019) (citing Masterpiece Cakeshop, Ltd.
v. Col. Civ. Rights Comm’n, 138 S. Ct. 1719, 1742 (2018) (Thomas J., concurring in
part and concurring in the judgment)). “Instead, [the Supreme Court] ha[s] extended
First Amendment protection only to conduct that is inherently expressive.”
Rumsfeld, 547 U.S. at 66.
Even where a person’s conduct is inherently expressive, and may, therefore,
be considered speech, a governmental regulation that restricts the ability to engage
in the expressive behavior does not necessarily violate the First Amendment.
O’Brien, 391 U.S. at 376. “[W]hen ‘speech’ and ‘nonspeech’ elements are combined
in the same course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms.” Id. A regulation does not violate a person’s freedom of
expression under the following circumstances:
if it is within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
Id. at 377; see Telescope Media Gr. v. Lucero, 936 F.3d 740, 756 (8th Cir. 2019)
(stating that if “the government seeks to neutrally regulate the non-speech element
[of a person’s conduct], intermediate scrutiny applies under the incidental-burden
doctrine”).

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Appellants do not suggest that the City lacks the constitutional power to enact
the Ordinance, nor do they contend that the City’s interest in preventing the spread
of foodborne illness is related to suppression of free expression. Instead, Appellants
argue that the Ordinance does not further an important or substantial government
interest and that the Ordinance is not sufficiently tailored to the asserted interest. We
disagree. Appellants’ expressive-conduct claim fails because, even assuming that
the conduct at issue is sufficiently communicative to fall within the First
Amendment’s purview, the Ordinance satisfies the test set forth in O’Brien.6
First, we reject Appellants’ suggestion that the City failed to show that its
asserted interest is a substantial one. Both common sense and the record say
otherwise. It is an imminently reasonable proposition that a municipality has a
substantial interest in preventing the spread of illness or disease among its citizens,
including its homeless population. And the evidence before the district court belies
Appellants’ claim that the City failed to make an adequate showing with respect to
the interest served by the Ordinance. The City introduced evidence that it has traced
incidents of illness among its homeless population to illegally distributed food dating
back to 2012. The City also pointed to CDC data indicating that nationally, in 2018
alone, nearly 6,000 people were hospitalized and 120 people died due to foodborne
illness.
Appellants argue that several “data points” undercut the importance of the
City’s interest in preventing foodborne illness. For example, Appellants point to the
decision not to pursue the citations and the Director of Public Safety’s December 4,
2018, statement that issuing such citations was not a priority for the City. These
details do not undermine our conclusion. The Director’s press release downplayed
the importance of criminal enforcement of the Ordinance, but it reinforced the
regulation’s goal “to prevent people from contracting a dangerous foodborne
6 The district court similarly found it unnecessary to decide whether
Appellants’ conduct was inherently expressive because the Ordinance does not
violate their right to free expression under O’Brien. Redlich, 550 F. Supp. 3d at 757–
59.

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illness.” That same municipal goal is reflected in Officer Ogunjobi’s incident report,
which stated that health department officials asked “officers . . . to identify
individuals who are breaking the rules, so they can follow-up and bring them to
compliance.” And on this record, the City Counselor’s Office’s decision to forego
prosecution of the citations similarly appears to have been based on a choice to
prioritize obtaining compliance over criminal enforcement, not a tacit admission that
prevention of foodborne illness is an insubstantial concern.7
In addition to finding that the City’s interest is substantial, we conclude that
the Ordinance furthers that interest and is narrowly tailored to it. To satisfy the
O’Brien standard “a regulation need not be the least speech-restrictive means of
advancing the Government’s interests. Rather, the requirement of narrow tailoring
is satisfied, so long as the regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.” Turner Broad. Sys., Inc.
v. F.C.C., 512 U.S. 622, 662 (1994) (cleaned up).
As noted above, the Ordinance adopted the 2009 Edition of the National Food
Code, which is based on scientific research and was intended to provide
municipalities with guidelines and rules to limit risk factors known to cause
7 Appellants also suggest that the City’s interest is not substantial because the
regulation does not require a permit if a person shares potentially hazardous foods
at a potluck or dinner party, but this argument is far afield from their as-applied
challenge. Moreover, it rests upon a flawed reading of the Ordinance. If the potluck
or dinner party were in a private space, the person would not be subject to the
permitting and other requirements of the Ordinance even if potentially hazardous
food were shared with family members and friends. But if such an event involves
distribution of potentially hazardous food to the public, the Ordinance’s requirement
for a permit and its other provisions would be applicable. The Ordinance applies to
“Temporary Food Establishments,” which are a form of “Food Establishment” under
the 2009 Edition of the National Food Code. FDA Food Code 2009, Ch. 1, § 1-
201.10(B) (Temporary Food Establishment definition). A “Food Establishment” is,
in turn, an operation that “stores, prepares, packages, serves, [or] vends food directly
to the consumer.” Id. (Food Establishment definition subparagraph (1)(a)). And a
“consumer” is “a person who is a member of the public.” Id. (Consumer definition).

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foodborne illness. The City offered evidence that food contaminated by pathogenic
microorganism growth and toxin formation causes foodborne illness. The same
criteria determine how the National Food Code defines “potentially hazardous
food.” And, in turn, the Ordinance identifies sandwiches containing meat, poultry,
eggs, or fish as among those foods considered to be potentially hazardous. As
applied to Appellants, the Ordinance furthers the City’s important interest in
preventing the spread of foodborne illness by regulating the distribution of
potentially hazardous food—namely, sandwiches containing bologna.
The Ordinance requires Appellants to obtain a permit and meet other
requirements only if they distribute potentially hazardous food,8 and imposes such
conditions because they are effective at preventing the spread of foodborne illness.
To distribute potentially hazardous food on a temporary basis, Appellants would be
8 In their briefing and at oral argument, Appellants asserted that the City would
place onerous restrictions on their food-sharing activities even if they were to
distribute only pre-packaged, ready-to-eat food that was not potentially hazardous.
Appellants’ Br. 13; Appellants’ Reply 10–11. Appellants point to the Ordinance’s
definition of a “Mobile Food Establishment,” which includes packaged-food
distributors using vehicles that serve only pre-packaged, “ready-to-eat FOOD or
drink and/or whole, uncut fruit and/or vegetables from an APPROVED source.”
Ordinance No. 68597, Ch. 1 (Mobile Food Establishment definition subparagraph
(3)). This does not change the outcome here. Under the Ordinance, a Mobile Food
Establishment is itself a “Food Establishment,” which, in turn, is defined as an
operation that serves “potentially hazardous foods.” Id., Ch. 1 (Food Establishment
definition subparagraph (1)(c)). But more importantly, nothing in the record suggests
that Appellants were cited for violating the Mobile Food Establishment rules, nor
that they received a citation for distributing food items that do not meet the definition
of “potentially hazardous food.” And Appellants provide no reason to conclude that
under the version of the St. Louis Food Code currently in effect, they are likely to
be prosecuted if they pass out food that is not potentially hazardous. This is, after
all, an as-applied challenge to the Ordinance, and Appellants have not alleged that
the regulation is (or would likely be) applied to them in this manner. See McCullen
v. Coakley, 573 U.S. 464, 485 n.4 (2014) (“[A] plaintiff generally cannot prevail on
an as-applied challenge without showing that the law has in fact been (or is
sufficiently likely to be) unconstitutionally applied to him.”).

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required to pay a $50 fee for the permit at least two days in advance of their food-
sharing activities and notify the City of both the time and place where the food would
be distributed. These provisions ensure that health inspectors have an opportunity to
determine whether the temporary food establishment is complying with the
Ordinance. When operating a temporary food establishment, Appellants would also
have to ensure: that they take steps to prevent contamination of any ice served to
consumers; that tableware provided to consumers is only in single-service and
single-use articles; that any equipment is located and installed in a way that avoids
food contamination and to facilitate cleaning; that food-contact surfaces are
protected from consumer contamination; and that they have water available for
cleaning utensils and equipment and to make convenient handwashing facilities
available for any employees. Without these provisions regarding the distribution of
potentially hazardous food to the public, the City’s goal of preventing foodborne
illness would be achieved less effectively.
Moreover, we note that nothing about the City’s enforcement of the Ordinance
against Appellants prevents them from conveying their religious message in other
ways. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 298 (1984)
(explaining that time, place, and manner restrictions on expression are valid where,
among other things, they “leave open ample alternative channels for communication
of the information” and noting that the O’Brien test is “little, if any, different from
the standard applied to time, place, and manner restrictions”). For example,
Appellants may continue engaging in the allegedly expressive act of sharing non-
hazardous food with those in need while simultaneously discussing the substance of
their message with them or with passersby, sharing literature, or engaging in other
protected speech. Enforcement of the Ordinance against Appellants for the
distribution of potentially hazardous food limits none of those alternative avenues of
expression.
We affirm the district court’s entry of summary judgment in favor of the City
on Appellants’ freedom-of-expression claim.

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B.
Appellants also argue that the City was not entitled to summary judgment on
their hybrid-rights claim under Department of Human Resources v. Smith, 494 U.S.
872 (1990). Appellants claim that because they asserted both a Free Exercise claim
and a freedom-of-expression claim, the district court erred by refusing to apply strict
scrutiny to their hybrid-rights claim. We disagree. Appellants concede that they do
not have a viable claim under the Free Exercise Clause, and their expressive-conduct
claim lacks merit. Because each of the claims making up their hybrid-rights claim
“fails on its own, . . . this case is not in the class of hybrid situations in which the
Free Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech, can bar application of a neutral, generally applicable law.”
B.W.C. v. Williams, 990 F.3d 614, 622 (8th Cir. 2021) (quotation omitted).
The judgment of the district court is, therefore, affirmed.
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