Hoffmeyer et al v. Porter et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment on the issue of liability is GRANTED in part and DENIED in part, as set forth above. (Doc. No. 21.) Signed by District Judge Audrey G. Fleissig on 11/19/2012. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STEPHEN C. HOFFMEYER and
ANTHONY SCOTT WICHLAN,
MICHAEL PORTER and THOMAS C.
Case No. 4:11CV00898 AGF
MEMORANDUM AND ORDER
Plaintiffs Stephen Hoffmeyer and Anthony Scott Wichlan bring this action for
damages against two officers of the Water Patrol Division of the Missouri Highway
Patrol, Michael Porter and Thomas Belote in their individual capacities. Plaintiffs, who
were arrested by Defendants for peace disturbance and resisting arrest, assert claims
under 42 U.S. C. § 1983 for unlawful arrest under the Fourth Amendment and retaliation
for exercise of First Amendment rights, and under Missouri common law for malicious
prosecution. The matter is before the Court on Plaintiffs’ motion for summary judgment
on the issue of liability on all claims. For the reasons set forth below, the motion shall be
granted in part and denied in part.
The case arises out of the warrantless arrest of Plaintiffs by Defendants on the
gangplank of Hoffmeyer’s houseboat on the Mississippi River in St. Charles County,
Missouri, on Sunday, June 21, 2009. Viewing the evidence in the light most favorable to
Defendants the record establishes the following. At approximately 5:00 p.m. on June 21,
2009, Porter was on patrol in his boat near Hoffmeyer’s houseboat which was tied to a
dock. Porter was using binoculars to observe whether the houseboat had proper
registration. Hoffmeyer started yelling at him from the deck of the houseboat, using
profanities, including “You fucking communist!” and “Fuck you!” Wichlan also began
yelling at Porter from the deck of the houseboat and “gave him the finger.” A woman
with two children, as well as some other people, were on the dock in hearing distance.
Porter could see that the woman was disturbed by the yelling and that she immediately
left the area with the children.
Porter saw someone else in the cabin of the houseboat holding what Porter thought
might be the scope of a gun. Belote arrived at the scene and Porter told him “the
situation,” including that he saw what might have been the scope of a gun. The two
officers went onto the gangplank and approached the houseboat. Both Plaintiffs were
yelling obscenities at the officers and when asked to provide their identification, refused
to do so. At this point, Defendants arrested Plaintiffs for peace disturbance.1 (Porter’s
Depo. Doc. No. 20-2.)
Hoffmeyer turned around willingly and was handcuffed behind his back. The
officers asked Wichlan to give them his cell phone with which he had just taken a picture
of Hoffmeyer, and Wichtan refused. Belote told Wichlan to put his hands behind his
back, and it took both Defendants to handcuff Wichlan. Defendants walked Plaintiffs
down the gangplank and put them in patrol cars of the county sheriff’s department and
told the sheriffs to take Plaintiffs to the county detention center. Plaintiffs were detained
overnight and both were charged with peace disturbance and resisting arrest.2 Id.
Under Mo. Rev. Stat. § 574.010. 1,
[A] person commits the crime of peace disturbance if:
(1) He unreasonably and knowingly disturbs or alarms another
person or persons by:
(a) Loud noise; or
(b) Offensive language addressed in a face-to-face manner to
a specific individual and uttered under circumstances which are likely to
produce an immediate violent response from a reasonable recipient;
Mo. Rev. Stat. § 575.150 provides, in relevant part:
1. A person commits the crime of resisting or interfering with arrest . . . if,
knowing that a law enforcement officer is making an arrest . . . , for the
purpose of preventing the officer from effecting the arrest . . .
(1) Resists the arrest . . . by using or threatening the use of
violence or physical force or by fleeing from such officer . . .
2. This section applies to: (1) Arrests . . . with or without warrants;
Plaintiffs retained counsel and on April 7, 2010, the prosecuting attorney entered nolle
prosequi on all charges.
Plaintiffs assert three claims for damages against Defendants: (1) a claim under 42
U.S.C. §1983 for false arrest, on the ground that there was no arguable probable cause for
arresting Plaintiffs, (2) a claim under 42 U.S.C. § 1983 for retaliatory arrest for exercise of
First Amendment rights, on the ground that the arrest was for name calling which is
protected by the First Amendment -- particularly against a law enforcement officer, and
(3) a claim under state common law for malicious prosecution, on the ground that the
reason Defendants charged Plaintiffs was because Defendants knew they had acted
improperly in arresting them, and thought that by bringing the charges the matter would be
resolved by dropping the charges in exchange for a release.
Plaintiffs argue that they are entitled to summary judgment on the question of
liability on all three claims. Plaintiffs assert that the evidence establishes that there was no
probable cause to believe that either Plaintiff had violated the peace disturbance statute
because Plaintiffs’ words directed to the two officers were not uttered under circumstances
which were likely to produce an immediate violent response from Defendants. Plaintiffs
also assert that the evidence makes clear that Hoffmeyer did not resist arrest.
4. It is no defense to a prosecution pursuant to subsection 1 of this section
that the law enforcement officer was acting unlawfully in making the arrest.
However, nothing in this section shall be construed to bar civil suits for
Plaintiffs posit that as the arrests lacked probable cause, that the record also
establishes a clear inference that the true purpose of the arrests was to retaliate for
Plaintiffs’ exercise of their First Amendment rights, and that they were maliciously
charged with the crimes. Thus, according to Plaintiffs, they are entitled to summary
judgment on their second and third claims as well.
Plaintiffs maintain that Defendants are not entitled to qualified immunity because
the right to be free from arrest without probable cause and the right to be free from arrest
and prosecution in retaliation for the exercise of First Amendment right have been well
established for decades, and so under an objective standard, no reasonably competent
officer would have arrested Plaintiffs.
Defendants respond that there exist factual issues that preclude the grant of
summary judgment and that the evidence at trial will establish that they are entitled to
Federal Rules of Civil Procedure Rule 56(a) provides that summary judgment shall
be entered “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, a
court is required to view the facts in the light most favorable to the non-moving party and
must give that party the benefit of all reasonable inferences to be drawn from the record.
Sokol & Assocs., Inc. v. Techsonic Indus., Inc., 495 F.3d 605, 610 (8th Cir. 2007).
“A genuine issue of fact exists when there is ‘sufficient evidence favoring the
non-moving party for a jury to return a verdict for that party.’” Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
A warrantless arrest is consistent with the Fourth Amendment if it is
supported by probable cause. . . . An officer has probable cause to make a
warrantless arrest when the facts and circumstances are sufficient to lead a
reasonable person to believe that the defendant has committed or is
committing an offense. In determining whether probable cause existed at the
time of the arrest, [courts] look at the totality of the circumstances as set
forth in the information available to the officer at the time of arrest.
Royster v. Nichols, ___F.3d___, 2012 WL 5308046, at *4 (8th Cir. Oct. 30, 2012)
(citations omitted). “Probable cause exists if the totality of facts based on reasonably
trustworthy information would justify a prudent person in believing the individual arrested
had committed an offense at the time of the arrest.” Green v. Nocciero, 676 F.3d 748, 751
(8th Cir. 2012).
Viewing the totality of the circumstances in the light most favorable to Defendants
and giving them the benefit of all reasonable inferences to be drawn from the record, the
Court concludes that there was no probable cause to arrest and charge either Plaintiff with
peace disturbance. As set forth in Green v. Missouri, 734 F. Supp. 2d 814 (E.D. Mo.
2010), it has long been established by the courts in Missouri that to constitute a violation
of § 574.010. 1, “conduct must have been calculated to provoke a breach of the peace,
meaning it must have been intended to or reasonably likely to incite others to violence.”
734 F. Supp. 2d at 834-35 (citing cases including City of St. Louis v. Tinker, 542 S.W.2d
512, 513-20 (Mo. 1976) (holding that a protester who screamed and yelled at police and
security guards, “pigs,” or “stupid pigs,” in the presence of approximately 35 other
protesters, could not be found guilty of peace disturbance because the words were not
intended to provoke others to violence)). Here, the Court can say as a matter of law, that
no reasonable officer would have thought that Plaintiffs had committed the offense of
peace disturbance under Missouri law.
In addition, the evidence establishes that no reasonable police officer would have
believed that Hoffmeyer resisted arrest. The Court cannot say the same about Wichlan
with respect to his arrest for resisting arrest. Under § 575.150(4) and Missouri common
law, an individual can be convicted of resisting arrest even where the arrest is unlawful.
Miller v. Page, No. 04-4198CVCNKL, 2005 WL 3557426, at *6 (W.D. Mo. Dec. 28,
2005) (citing State v. Merritt, 805 S.W.2d 337 (Mo. Ct. App. 1991)). Here, the record is
not clear that Wichlan did not resist arrest, or at least that a reasonable officer would have
known that Wichlan did not do so.
First Amendment and Malicious Prosecution Claims
The Court cannot conclude on the record before it that either Plaintiffs are entitled
to summary judgment on the question of liability on the First Amendment and malicious
prosecution claims. To prevail on the First Amendment claims, Plaintiffs must show that
the arrests were motivated by retaliation against protected speech, see, e.g., McCabe v.
Parker, 608 F.3d 1068, 1079 (8th Cir. 2010), and malice is an element in a malicious
prosecution claim under Missouri law, see, e.g., Bramon v. U–Haul, Inc., 945 S.W.2d 676,
684 (Mo. Ct. App. 1997) (“A plaintiff suing for malicious prosecution must prove legal
malice, i.e., that the defendant initiated the prosecution for a purpose other than that of
bringing an offender to justice.”). Plaintiffs’ argument in this regard is based on an
inference they ask the Court to draw from the evidence. This does not meet the standard
for granting Plaintiffs summary judgment.
“The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (citation omitted). Defendants would be entitled to
qualified immunity on all of Plaintiffs’ constitutional claims “unless (1) [Defendants]
violated a federal constitutional or statutory right belonging to [Plaintiffs] (2) that was
clearly established at the time of the violation, such that reasonable officials in
[Defendants’] positions would have known that they were violating that right.” See Livers
v. Schenck, No. 11-1877, ___F.3d___, 2012 WL 5439300, at *7 (8th Cir. Nov. 8, 2012).
“To be clearly established, a right must be sufficiently clear that every reasonable official
would [have understood] that what he is doing violates that right.” Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012) (citation omitted). “[T]he right allegedly violated must be
established, not as a broad general proposition, but in a particularized sense so that the
contours of the right are clear to a reasonable official.” Id. at 2094 (citations omitted).
Qualified immunity is a doctrine that, “in shielding government officials from
damages liability, gives ample room for mistaken judgments by protecting all but the
plainly incompetent or those who knowingly violate the law.” Nocciero, 676 F.3d at 751
(citation omitted). The doctrine “balances two important interests -- the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson, 555 U.S. at 231.
Here, at the time of Plaintiffs’ arrest it was clearly established that “a seizure
without a truthful factual showing sufficient to constitute probable cause violates the
Fourth Amendment,” see Livers, 2012 WL 5439300, at *14 (citation omitted), and the
record establishes that it was not objectively reasonable for Defendants to think that they
had probable cause to arrest either Plaintiff for peace disturbance, or to arrest Hoffmeyer
for resisting arrest.
Whether Defendants are entitled to qualified immunity on the other constitutional
claims must await further factual development of the record.
IT IS HEREBY ORDERED that Plaintiffs’ motion for summary judgment on the
issue of liability is GRANTED in part and DENIED in part, as set forth above. (Doc. No.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 19th day of November, 2012.
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