On October 20, 2022, the Eighth Circuit Court of Appeals decided Welch v. Dempsey[i], which serves as an excellent review of the law related to retaliatory use of force under the First Amendment. The relevant facts of Welch are as follows:

Welch participated in protest activities in downtown Des Moines on the evening of May 30, 2020, in the aftermath of the death of George Floyd in Minneapolis. At one point, protestors threw rocks at an historic county courthouse and broke glass. Welch was near that scene, recording the events on her cellular phone.

The incident in question occurred about thirteen minutes later, after Welch had moved across the street to the vicinity of a different courthouse facility. Welch was then broadcasting a video of events taking place in front of the second courthouse building. According to the facts assumed by the district court, no property damage was occurring at the time of the incident, and much of an erstwhile crowd had migrated away from the courthouse.

Welch was standing “before” a scrimmage line of police officers who were protecting the courthouse, and she was located on the “edge” of the line. Video evidence confirms that Welch was standing on a public sidewalk several feet away from a line of officers—forward and to the right of the line from the perspective of the officers. See Scott v. Harris, 550 U.S. 372, 380-81, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007).

[Officer] Dempsey arrived behind the police line in an armored vehicle, walked around a group of officers who were taking no action against Welch, approached Welch while she was live-streaming the events, and sprayed her in the face with a chemical agent. Dempsey gave no warning to Welch, and he was on the scene for only twelve seconds before he deployed force.[ii]

Welch sued Officer Dempsey for retaliatory use of force under the First Amendment.  The officer filed a motion for summary judgment and qualified immunity.  The district court held that Welch satisfied the elements of retaliatory use of force claim based on the facts alleged and denied the officer’s motion for summary judgment and qualified immunity.  Officer Dempsey appealed the denial of his motion to the Eighth Circuit Court of Appeals.

The court of appeals first examined the law related to a claim for retaliatory use of force under the First Amendment.  The court stated

To establish a violation of the First Amendment based on the retaliatory use of force, a plaintiff must show that (1) she engaged in protected activity, (2) the officer used force that would chill a person of ordinary firmness from continuing the protected activity, and (3) the use of force was motivated by the exercise of the protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). When a claim alleges a retaliatory arrest, which is not the assertion here, a plaintiff also must show as a general matter that the officer acted without probable cause to arrest. Nieves v. Bartlett, 139 S. Ct. 1715, 1723, 204 L. Ed. 2d 1 (2019).[iii]

The court of appeals noted that the district court held (1) Welch was exercising her First Amendment right to protest discriminatory policy, (2) at the time the officer used force (pepper spray) which would chill a person of ordinary firmness from continuing the activity, and (3) that Welch’s exercise of her First Amendment right was the cause of the officer’s use of force.  Thus, the district court determined that Welch had met all required elements of a retaliatory use of force claim.

On appeal, Officer Dempsey’s primary argument was that his use of force was motivated not by Welch’s exercise of her First Amendment rights, but rather by her actions shortly after riotous activities that occurred earlier that evening.  He argued that he would have taken the same action against Welch regardless of her exercise of protected speech.  The court of appeals stated that they do not have jurisdiction to hear an argument based on Dempsey’s motive.  That argument is for a jury to hear and determine.  At this stage of the litigation, the court of appeals is limited to the legal issue of whether the facts alleged by the plaintiff establish a violation of clearly established law.

Dempsey also argued that he had “arguable probable cause” that Welch was interfering with the officers’ duties by coming within the police line.  However, the case did not involve a claim of unlawful arrest so arguable probable cause lacks relevance in this case.  The court of appeals also noted that Dempsey conceded in district court, that there was no probable cause to arrest Welch, and he did not identify any crime that she may have arguably been violating when he sprayed her in the face.  The court stated that Dempsey only argued that other persons took part in a riot earlier that evening and engaged in an unlawful assembly.  The court then observed

When Dempsey used force against Welch, however, she was standing alone on a public sidewalk streaming a live video on her phone. Dempsey did not, during the twelve seconds that he was on the scene, develop arguable probable cause that Welch was rioting or engaged in an unlawful assembly under Iowa law. Dempsey’s arguments thus do not undermine the district court’s conclusion that Welch’s right to be free from a retaliatory use of force was clearly established at the time of the incident. See Peterson, 754 F.3d at 603; Quraishi v. St. Charles Cty., 986 F.3d 831, 839 (8th Cir. 2021); Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010).[iv]

Thus, viewing the evidence in a light most favorable to Welch, as they are required to do at this stage of the litigation, the court of appeals determined that,  (1) Dempsey violated the First Amendment by his use of retaliatory force against Welch, and (2) the law was clearly established such that any other reasonable officer would have known he was violating the constitution.

As such, the court affirmed the denial of qualified immunity for Officer Dempsey.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 21-3504 (8th Cir. Decided October 20, 2022)

[ii] Id. at 1-3

[iii] Id. at 3 (emphasis added)

[iv] Id. at 7

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