Essence Welch v. Daniel Dempsey, No. 21-3504 (8th Cir. 2022)
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Plaintiff sued police officer under 42 U.S.C. Section 1983 after the police officer deployed pepper spray in Plaintiff’s face. The district court concluded that Plaintiff was engaged in protest activity protected by the First Amendment, and that there was sufficient evidence for a reasonable jury to find that the police officer used force against Plaintiff because she exercised her constitutional right to freedom of speech. Defendant appealed, and argued that he is entitled to qualified immunity from suit.
The Eighth Circuit affirmed finding that there is no reversible error. The court explained that the district court’s determination that a reasonable jury could find that the police officer acted with retaliatory motive is a matter of evidence sufficiency that is not appealable at this juncture. The court further held that the police officer’s argument based on “arguable probable cause” fails for other reasons as well. Probable cause is a constitutional standard under the Fourth does not argue that this case involves a search or seizure, and he does not explain why the asserted existence of “arguable probable cause” would be dispositive as a matter of law on a claim alleging retaliatory use of force in violation of the First Amendment.
Court Description: [Colloton, Author, with Wollman and Stras, Circuit Judges] Civil case - Civil rights. The district court did not err in denying the defendant's motion for summary judgment based on qualified immunity in this case involving the pepper spraying of plaintiff while she was live streaming a demonstration which occurred in the aftermath of George Floyd's death; plaintiff's right to be free from retaliatory force was clearly established at the time of the incident.
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