Whether police officers violated clearly established First Amendment rights when they tear-gassed plaintiffs for serving as legal observers in a public protest.
Sarah Molina and Christina Vogel were legal observers at a protest in St. Louis sparked by a fatal police shooting. They wore bright green hats stating “National Lawyers Guild Legal Observer.” When police ordered the protesters to disperse, Molina and Vogel left, and returned to Molina’s house, several blocks away, where they stood on the sidewalk. Police in an armored vehicle later drove by Molina’s house and officers threw multiple tear gas canisters at Molina and Vogel.
Molina and Vogel sued, arguing that the police had retaliated against them for participating as legal observers in the protest. They argued that the police tear gassed them because they wore hats proclaiming that they were legal observers, and because they observed the police, both First Amendment protected activities.
A divided panel of the U.S. Court of Appeals for the Eighth Circuit dismissed the case. It ruled that words printed on clothing do not warrant First Amendment protection unless they express a “particularized message,” and that the words “National Lawyers Guild Legal Observer” on the plaintiffs’ hats were not protected because “not everyone” would understand the hats to express a “pro-protest” message. It also ruled that it was not clearly established that citizens had a right to observe and record the police in public, and therefore the officers were entitled to “qualified immunity.”
Plaintiffs argue that words, no matter where they appear, are “pure speech” protected by the First Amendment without regard to whether they express a “particularized message.” And they maintain that it has long been clear that individuals have a right to unobtrusively observe the police in public. Finally, plaintiffs invite the Court to reconsider its “qualified immunity” doctrine because recent research demonstrates that this judicially created immunity is contrary to Congress’s language and purpose in enacting 42 USC 1983, which gives people a right to sue government officials for violating their civil rights.
“This case illustrates just how wrong the doctrine of qualified immunity in its current form is. It should be obvious that police cannot tear gas someone for being a legal observer at a protest, yet the Eighth Circuit managed to dismiss a case alleging fundamental First Amendment violations,” said David D. Cole, ACLU’s national legal director. “We’re asking the court to reconsider that doctrine’s very foundations, as well as to make clear that the First Amendment protects all written words, without some assessment of whether they express a sufficiently particular view.”