Weed v. Jenkins, et al.

Filing 53

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's First Amended Motion for Preliminary Injunction (ECF No. 22 ) is DENIED. Signed by District Judge Ronnie L. White on October 28, 2015. (BRP) (Main Document 53 replaced on 10/28/2015) (BRP).

UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIMMY DUANE WEED,

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Plaintiff,
v.

CORPORAL T.R. JENKINS, et al.,
Defendants.

No. 4:15CV140 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs First Amended Motion for Preliminary
Injunction (ECF No. 22). The Court held a hearing on the motion on September 15, 2015, and
the parties submitted Proposed Findings of Fact and Conclusions of Law. Upon consideration of
the arguments presented at the hearing and in the written briefs, the Court will deny Plaintiffs
motion.

FINDINGS OF FACT
The parties filed a 9-page Stipulation of Facts. The Court hereby adopts and incorporates
by reference those facts as stipulated by the parties. (Stipulation of Facts, ECF No. 46) For
context, the Court sets forth the following facts:
On the morning of August 17, 2013 , Plaintiff and a group of citizens gathered on the
sidewalk of a highway overpass on Interstate 70 ("I-70") in St. Charles County, Missouri to
protest the policies of President Barack Obama. The group was called "Overpasses against
Obama." Plaintiff and other protesters displayed political signs, banners, and flags to cars on the
overpass and driving on the interstate below. Plaintiffs sign stated "Impeach Obama."

Traffic congestion on I-70 that particular day was heavier than normal due to accidents,
highway construction, and local events. St. Charles police officers ordered the protesters to
move from the overpass sidewalk to a nearby commuter parking lot for some time, but the police
subsequently allowed the protesters to return to the overpass sidewalk. However, that afternoon,
a Missouri Highway Patrol Trooper and a Missouri Department of Transportation official told
Defendant Corporal T.R. Jenkins that the protests worsened congestion and contributed to a
traffic safety hazard. As a result, Cpl. Jenkins and other members of the Missouri State Highway
Patrol asked Plaintiff to move from the overpass for traffic safety purposes and not because the
troopers disagreed with Plaintiffs politics or found the message offensive. Plaintiff refused to
follow Cpl. Jenkins' order, and Cpl. Jenkins arrested Plaintiff for violating Mo. Rev. Stat.§
43.170, willfully opposing or resisting the lawful order of a trooper. Plaintiff was transported to
the St. Charles county jail and held for approximately 24 hours. He was never issued a citation
or charged with violation of the law. Defendant Colonel J. Bret Johnson is the chief policy
maker for the Missouri State Highway Patrol and supervises those who train State troopers. Col.
Johnson is unaware of any other arrests for violation of§ 43 .170 under a similar fact pattern.
Since the date of his arrest, Plaintiff has gone to the same and other overpasses in the St.
Louis region to join in "Overpasses against Obama" protests. Plaintiff has not been arrested.
Nevertheless, he states he is afraid of future arrests.
Plaintiff filed a First Amended Complaint on May 12, 2015 seeking, inter alia, to
preliminarily and permanently enjoin Defendant Col. Johnson from enforcing the portion of Mo.
Rev. Stat. § 43 .170 which states, "any person ... who willfully ... opposes a member of the
patrol in the proper discharge of his duties shall be guilty of a misdemeanor."

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CONCLUSIONS OF LAW
The "issuance of a preliminary injunction depends upon a 'flexible' consideration of (1)
the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an
injunction would inflict on other interested parties; (3) the probability that the moving party
would succeed on the merits; and (4) the effect on the public interest." Planned Parenthood of

Minn. , ND., S.D. v. Rounds, 530 F.3d 724, 729 n.3 (8th Cir. 2008) (quoting Dataphase Sys. , Inc.
v. CL. Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981)). "At the base, the question is whether the
balance of equities so favors the movant that justice requires the court to intervene to preserve
the status quo until the merits are determined." Dataphase, 640 F.2d at 113. "When considering
a ' duly enacted state statute,' a court must ' make a threshold finding that [the plaintiff] is likely
to prevail on the merits. "' Minnesota Citizens Concerned/or Life, Inc. v. Swanson, 692 F.3d
864, 870 (8th Cir. 2012) (quoting Planned Parenthood, 530 F.3d at 732-33).
The Missouri statute at issue provides:
It shall be the duty of the operator or driver of any vehicle or the
rider of any animal traveling on the highways of this state to stop
on signal of any member of the patrol and to obey any other
reasonable signal or direction of such member of the patrol given
in directing the movement of traffic on the highway. Any person
who willfully fails or refuses to obey such signals or directions or
who willfully resists or opposes a member of the patrol in the
proper discharge of his duties shall be guilty of a misdemeanor and
on conviction thereof shall be punished as provided by law for
such offenses.

Mo. Rev. Stat. § 43.170. Plaintiff contends that the enforcement of the statute against him
permits a trooper to use the rationale of traffic safety to impose a restriction on First Amendment
speech without sufficient guidelines for the trooper. Plaintiff concedes that the State may
enforce regulations of time, place, and manner of expression that are content neutral, narrowly
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tailored to serve a significant governmental interest, and leave open ample alternative channels
of communication. Wardv. Rock Against Racism, 491 U.S. 781 , 791 (1989). However,
Plaintiff argues that the statute is overbroad and therefore unconstitutional as applied to him.
Likelihood of Success on the Merits
The Court finds that Plaintiffs argument is flawed in that Mo. Rev. Stat. § 43.170 does
not target conduct that is protected by the First Amendment. "A regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if it has an incidental effect on
some speakers or messages but not others." Ward. Rock Against Racism, 491 U.S. 781 , 791
(1989). Indeed, while Cpl. Jenkins asked the protesters to disperse due to safety concerns, he
arrested Plaintiff for willfully resisting or opposing the order of an officer, which is clearly set
forth in the statute.
Plaintiff relies on Stahl v. City of St. Louis, 687 F.3d 1038 (8th Cir. 2012) for the
proposition that the ordinance is unconstitutional because it does not provide people with fair
notice of when their actions are likely to become unlawful. In Stahl, Plaintiff challenged a city
ordinance that explicitly prohibited signs or activities where the gathering stopped or impeded
pedestrians or vehicular traffic. Id. at 1038. The court acknowledged that governmental entities
have the power to prevent potential traffic obstructions before they happen. Id. at 1040.
However, in Stahl, the court found the ordinance distinguishable because the law criminalized
speech that had the consequence of obstructing traffic but did not provide notice to people that
the speech was unlawful until after the obstruction occurred. Id. at 1041. The court held that the
"ordinance criminalize[d] activity based primarily on often unpredictable reactions of their
parties rather than directly on a person' s own actions, and it excessively chill[ed] protected First
Amendment activity." Id. at 1042.

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Here, however, the statute as issue is clear and provides notice that person commits a
misdemeanor when he or she willfully resists or opposes a member of the patrol in the proper
discharge of his duties. Plaintiff knew he was opposing Cpl. Jenkins' order to leave the overpass
due to traffic safety concerns, and in particular he was aware of several accidents in the area to
which the protesters' presence likely contributed. While Plaintiff cites to cases where the statute
or ordinance targets speech, this case is more akin to McDermott v. Royal, 613 F.3d 1192 (8th
Cir. 2010). In McDermott, the plaintiff was arrested for obstructing police officers who arrested
her son. Id. at 1193. The ordinance made it unlawful to '" resist or obstruct a city officer making
an arrest . . . or attempting to execute any other duty imposed on him by law. "' Id. (quoting
Springfield, Missouri Ordinance Section 78-32(1)). The court had to determine whether the
Ordinance could be invalidated as overbroad by considering "whether it reached a substantial
amount of conduct protected by the First Amendment, even if it also had a legitimate
application." 1 Id. (citing City of Houston v. Hill, 482 U.S. 451 , 458-59 (1987)). The
McDermott court upheld the Ordinance, finding the terms "obstruct" and "resist" covered only
physical acts or fighting words and did not provide the officers with unfettered discretion to
make arrests for mere words that annoyed them. Id. at 1194; see also Virginia v. Hicks , 539 U.S.
113, 124 (2003) (finding that a written provision authorizing the police to arrest those returning
to court after receiving a barment notice did not violate the First Amendment regardless of
whether they sought to engage in speech on their return); Lawrence v. 48th Dist. Court, 560 F.3d
475, 482 (6th Cir. 2009) (finding an ordinance prohibiting a person from resisting a police
officer while in the discharge of his duty or from interfering with or hindering him with the

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The Court is aware that Plaintiff is making an "as applied" argument and not attempting to
invalidate the entire statute. However, the cases involving similar statutes subject to First
Amendment challenges are instructive in the instant case.
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discharge of his duty was not unconstitutional either on its face or as applied because the
ordinance suggested physical interference, not speech, and the officers were justified in entering
the home without a warrant). Here, Plaintiffs nonexpressive conduct of willfully resisting Cpl.
Jenkins ' order to move, not his speech, brought on the violation. Indeed, Plaintiff does not claim
that his verbal challenge to the Cpl. Jenkins was protected political speech. Instead, he
challenges a Missouri State statute that clearly states that resisting or opposing an officer in the
proper discharge of his duties is a misdemeanor.
Further, Plaintiffs "as applied" argument fails. Under Missouri law, "[t]he primary
purpose of the highway patrol is to enforce the traffic laws and promote safety upon the
highways. As near as practicable all personnel of the patrol shall be used for carrying out these
purposes." Mo. Rev. Stat. § 43.025. In addition, "[i]t shall be the duty of the patrol to police the
highways constructed and maintained by the commission; to regulate the movement of traffic
thereon .... " Mo. Rev. Stat. § 43.160. "It is a traditional exercise of the States' ' police powers
to protect the health and safety of their citizens. " ' Hill v. Colorado, 530 U.S. 703 , 715 (2000)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). "The First Amendment does not
entitle a citizen to trespass, block traffic, or create hazards for others." Frye v. Police Dep 't of

Kansas City, Mo., 260 F. Supp. 2d 796, 799 (W.D. Mo. 2003).
Plaintiff does not argue that these statutes giving authority to officers to regulate traffic
and promote traffic safety are unconstitutional. Plaintiff argues that the despite this authority,
and despite the stipulated facts that traffic was unusually heavy that day and resulted in several
accidents near the overpass, an officer should never be allowed to order peaceable political
protesters on public overpasses in Missouri to move, and then arrest or threaten to arrest them
under the statute for willfully opposing the order. (Pl. ' s Proposed Findings of Fact, pp. 12-13,

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ECF No. 51) "[T]he Supreme Court ' has regularly rejected the assertion that people who wish to
propagandize protests or views have a constitutional right to do so whenever and however and
wherever they please."' Frye v. Kansas City Mo. Police Dep 't, 375 F.3d 785, 790 (8th Cir.
2004) (quoting United States v. Grace, 461 U.S. 171, 177-78 (1983) (internal quotation
omitted)).
In Frye, individuals assembled at the intersection of two heavily trafficked roads to
protest abortion. Id. at 788. After receiving complaints about offensive signs, officers told the
protesters they could demonstrate so long as they did not create a traffic hazard. Id. However,
upon observing heavy traffic and near accidents, as well as receiving complaints about the
graphic signs impairing motorists' ability to safely control their vehicles, an officer asked the
protesters to move to avoid creating a hazard to public safety. Id. After several protesters
refused, the officer arrested them for violating a city loitering ordinance. Id. The protesters filed
a civil rights action, alleging that the police officers violated their First Amendment rights to free
speech and assembly. Id. at 788-89. The Eighth Circuit Court of Appeals held that the district
court properly granted summary judgment for the city because the protest took place in a heavily
trafficked intersection during a busy part of the day; officers observed that the protest was
creating a traffic hazard; motorists complained about the photos impairing their driving ability;
and the officers were "entitled to decide that the situation presented a danger before the accident
occurred." Id. at The Frye court specifically noted that while the protesters had a First
Amendment right to advocate their cause, the First Amendment did not give them a "'right to
dictate the manner in which they convey their message within their chosen avenue.'" Id. at 792
(quoting Foti v. City of Menlo Park, 146 F.3d 629, 641 (9th Cir. 1998)). The court agreed with
the Ninth Circuit's holding "that the restriction on the manner of the protest 'was permissible in

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light of the City' s substantial interest in requiring drivers to devote greater attention to driving
conditions and road signs. "' Id. (quoting Foti, 146 F.3d at 642).2
Similarly, in the present case, Defendants exercised their discretion in determining that
the protests in that particular area and manner created a traffic safety hazard. Plaintiff
acknowledges that the St. Charles police ordered the protesters to move from the overpass earlier
that same day. Plaintiff does not argue that the Cpl. Jenkins did not provide alternative means to
express his views. Indeed, the officer informed the protesters they could return another day, and,
in fact, they have done so on many occasions with no incident. Cpl. Jenkins placed reasonable
restrictions on the location of the protest to protect public safety under his statutory and
traditional police power to regulate traffic and promote safety. The restriction on that specific
day was not aimed at the content of the message, was narrowly tailored to serve the
government's interest in public safety, and allowed Plaintiff to return to that overpass, and
others, on multiple occasions. Further, and more importantly, the use of the statute at issue here
was not in response to Plaintiffs exercise of free speech but to his conduct in willfully opposing
Col. Jenkins' order to disperse. Therefore, the Court finds that Plaintiff is unlikely to succeed on
the merits of his First Amendment claim.
Threat of Irreparable Harm
Plaintiff argues that the loss of his First Amendment freedoms constitutes irreparable
harm. First, the Court reiterates that Plaintiff was not arrested for exercising his right to free

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In Stahl, the Court distinguished Frye because "the challenge was to the police officer' s
conduct in a particular situation, not to the ordinance under which the police officer acted." 687
F .3d at 1040 n.1. While Plaintiff purports to challenge the statute under which he was arrested,
the officer did not use that statute to order the protesters to move due to traffic safety concerns.
Plaintiffs challenge is directed at the officer' s conduct in restricting the protest location to
protect public safety, which the Eighth Circuit has found to be constitutional. Frye , 375 F.3d at
790.
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speech. He opposed the officer' s order to leave the overpass. Certainly, should the Plaintiff
again oppose an order, an officer can invoke the Statute. However, Col. Johnson noted that the
statute was used in the context of protesters on a single occasion, the date Plaintiff was arrested.
Nothing in the facts indicates that Plaintiffs fear of arrest for protesting is legitimate.
Even assuming that the statute implicates Plaintiffs First Amendment rights, Plaintiff
cannot show irreparable harm. While the United States Supreme Court has held that " [t]he loss
of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury," the Court noted that preliminary injunctive relief was warranted where the
injury was threatened and occurring at the time of the motion, and the respondents demonstrated
a probability of success on the merits. Elrod v. Burns, 427 U.S. 347, 373-74 (1976). Such is not
the case here, where Plaintiff returned to the same overpass and other overpasses in the St. Louis
area without incident, and Plaintiff has not established a likelihood of success on the merits. 3
Although Plaintiff expresses a fear of future arrest, Plaintiff has not shown that the "'harm is
certain and great and of such imminence that there is a clear and present need for equitable
relief. "' Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013) (quoting Iowa

Utils. Bd. v. Fed. Commc 'ns Comm 'n, 109 F.3d 418, 425 (8th Cir. 1996)).

Public Interest and Balance of Harms
Plaintiff argues that the denial of Plaintiffs constitutional rights is a significant harm, and
any harm to Defendants is negligible. Plaintiff overlooks Defendants' task of enforcing traffic
laws and promoting highway safety. Plaintiff asks for an injunction that would prevent officers
from exercising these duties where protesters are peaceably assembling. As previously stated,

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Plaintiff filed this lawsuit 17 months after his arrest without any similar incidents occurring
either during that time or after, thus contradicting his allegations of irreparable harm. Novus
Franchising, 725 F.3d at 895 (citing Beame v. Friends of the Earth, 434 U.S. 1310, 1313
(1977)).
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"[t]he First Amendment does not entitle a citizen to trespass, block traffic, or create hazards for
others." Frye , 260 F. Supp. 2d at 799. Further, " [b]oth the defendants and the public have a
legitimate interest in maintaining order and protecting the public safety. Abdullah v. Cty. ofSt.
Louis, Mo., 52 F. Supp. 2d 936, 948 (E.D. Mo. 2014). 4 The Court finds that police officers'
interest in enforcing the traffic laws, promoting safety upon the highways, and regulating traffic
flow, as well as the public's interest in highway safety, outweighs any harm to the Plaintiff.
Indeed, as stated above, Plaintiff, who continues to freely protest, has not demonstrated any
irreparable harm. Thus, the Court finds that preliminary injunctive relief is not warranted, as the
balance of equities does not favor the Plaintiff such that the court must intervene to preserve the
status quo until it can determine the merits. Dataphase, 640 F.2d at 113 .
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs First Amended Motion for Preliminary
Injunction (ECF No. 22) is DENIED.
Dated this 28th day of October, 2015 .

)f~~~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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The Abdullah case is inapposite to the present facts. There, the defendants applied a "keepmoving" policy to peaceful protests, and the court found that the unwritten policy to order
protesters to keep moving whenever the officer deemed appropriate was entirely arbitrary, and
the public interest in maintaining order and public safety did not outweigh the core constitutional
rights of assembly and speech. 52 F. Supp. at 948. In that case, protesters were ordered to keep
moving for no reason other than they were peacefully standing on the public sidewalks. Id. at
944. Here, however, Cpl. Jenkins exercised his statutory authority to promote public highway
safety, and there were numerous accidents around the overpass where Plaintiff was protesting,
demonstrating a public safety issue.
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