Full Opinion (html_with_citations)

              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 22-1735
                     ___________________________

                             Rasheen Aldridge

                                   Plaintiff - Appellant

                                      v.

City of St. Louis, Missouri; John Hayden, Col., in his individual and official
capacities; William Olsten, Officer, in his individual and official capacities

                              Defendants - Appellees
                     ___________________________

                             No. 22-1910
                     ___________________________

                               Jazmin Franks

                                   Plaintiff - Appellant

                                      v.

 City of St. Louis, Missouri; John Hayden, Col., in his individual capacity;
              William Olsten, Officer, in his individual capacity

                              Defendants - Appellees
                     ___________________________

                             No. 22-2213
                     ___________________________

                               Crystal Brown

                                   Plaintiff - Appellant
                                          v.

   City of St. Louis, Missouri; John Hayden, Col., in his individual and official
   capacities; William Olsten, Officer, in his individual and official capacities

                                     Defendants - Appellees
                                   ____________

                     Appeal from United States District Court
                       for the Eastern District of Missouri
                                 ____________

                            Submitted: January 10, 2023
                               Filed: July 28, 2023
                                  ____________

Before GRASZ, MELLOY, and KOBES, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

        Appellants Rasheen Aldridge, Jazmin Franks, and Crystal Brown were each
pepper-sprayed by Police Officer William Olsten while participating in a protest in
downtown St. Louis. Each of them sued Officer Olsten, Chief of Police John
Hayden, and the City of St. Louis, alleging First Amendment retaliation and
excessive force claims, as well as various other federal and state law claims. In each
case, the district court 1 granted summary judgment in favor of the city officials on
all the federal claims and declined supplemental jurisdiction on the state law claims.
We consolidated the cases and, having jurisdiction under
28 U.S.C. § 1291
, affirm.


      1
        The Honorable Rodney W. Sippel, then Chief Judge for the Eastern District
of Missouri, now United States District Judge for the Eastern District of Missouri;
the Honorable Stephen R. Clark, then United States District Judge for the Eastern
District of Missouri, now Chief Judge for the Eastern District of Missouri; and the
Honorable John M. Bodenhausen, United States Magistrate Judge for the Eastern
District of Missouri, to whom the case was referred for final disposition by consent
of the parties pursuant to
28 U.S.C. § 636
(c).
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                                  I. Background

       Following the acquittal of a police officer on first-degree murder charges,
protests occurred around St. Louis over several weeks. During one such protest in
the downtown area, St. Louis Police Department officers tased and arrested one of
the protestors. A group of other protestors, including the three appellants, began to
follow the officers as they led the arrestee away from the scene. Various video
images of the protest confirm that while members of the crowd verbally questioned
and sometimes taunted officers, they generally remained non-violent.

      Officer Olsten was one of the numerous officers at the scene. Various officers
can be heard on the video recordings repeatedly directing the group of protestors to
“get back” as Officer Olsten and others attempted to lead the arrested protestor away.
At this point, protestor Amir Brandy shouted “I’m going to f*** you up.” In
response, Officer Olsten stepped toward Brandy and said, “well, come on, f*** me
up then” and “keep coming.” After Brandy noticed a pepper spray fogger in Officer
Olsten’s hand, Brandy yelled, “If you put that s*** in my face, I’ll f*** you up.”
He then proceeded to call Officer Olsten a “p**** a** white boy.” Appellant
Aldridge, who was standing next to Brandy, then asked Officer Olsten, “Y’all
f***ing tase [the arrested protestor]?” Officer Olsten replied, “I didn’t tase him.”

      Next, an unidentified protestor shouted out. The appellants claim the protestor
shouted, “shut this motherf***er down,” while the appellees claim the protestor said
something like, “shoot these motherf***ers.” Almost immediately following this
unidentified protestor’s shout, Officer Olsten quickly looked to his right and then
without warning deployed his pepper spray on the crowd. Although Aldridge and
Brandy were immediately in front of Officer Olsten, other members of the crowd
were also impacted because Officer Olsten sprayed side to side in a sweeping
motion. Officer Olsten did not arrest any protestors after he deployed his pepper
spray. Each appellant sued Officer Olsten, Chief of Police John Hayden, and the
City of St. Louis (collectively, “City Officials”) alleging various claims including,


                                         -3-
as most relevant to this appeal, a First Amendment retaliation claim pursuant to
42 U.S.C. § 1983
.

       In the Aldridge case, the district court granted summary judgment to Officer
Olsten on the First Amendment retaliation claim because “Aldridge base[d] his First-
Amendment-retaliation claim on an allegation of excessive force,” and the district
court had already granted summary judgment to Officer Olsten on the excessive
force claim. The district court also held the Monell claim2 must fail because there
was no individual liability, and it declined to exercise supplemental jurisdiction over
the state law claims.

       In both the Franks and Brown cases, the district court granted summary
judgment on the First Amendment retaliation claims because Franks and Brown
failed to demonstrate Officer Olsten deployed his pepper spray in response to their
actions. On the Monell claims by Franks and Brown, the district court also granted
summary judgment to the City because municipal liability could not attach without
a finding of individual liability. Finally, the district court declined to exercise
jurisdiction over state law claims in either case.

                                     II. Analysis

       We review a district court’s grant of summary judgment based on qualified
immunity de novo. Dooley v. Tharp,
856 F.3d 1177, 1181
 (8th Cir. 2017). Summary
judgment is appropriate “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, [meaning] there is no ‘genuine
issue for trial.’” Scott v. Harris,
550 U.S. 372, 380
 (2007) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574
, 586–87 (1986)). We view the facts
in the light most favorable to the nonmoving parties, granting them the “benefit of
all reasonable inferences.” Goffin v. Ashcraft,
977 F.3d 687
, 690–91 (8th Cir. 2020).


      2
          See Monell v. Dep’t of Soc. Servs. of City of New York,
436 U.S. 658
 (1978).

                                          -4-
       The City Officials are “entitled to qualified immunity unless (1) the facts,
viewed in the light most favorable to the plaintiff[s], demonstrate the deprivation of
a constitutional or statutory right; and (2) the right was clearly established at the time
of the deprivation.” Bell v. Neukirch,
979 F.3d 594, 602
 (8th Cir. 2020) (quoting
Walton v. Dawson,
752 F.3d 1109, 1116
 (8th Cir. 2014)).

       Aldridge, Franks, and Brown each raise three arguments in support of
reversal: Officer Olsten retaliated against them in violation of the First Amendment;
the City is liable under Monell; and the district court should have exercised
supplemental jurisdiction over their state law claims. We address these arguments
in turn.

                          A. First Amendment Retaliation

       The appellants argue Officer Olsten deployed his pepper spray in retaliation
for their protesting against the police. “The First Amendment prohibits laws
‘abridging the freedom of speech.’” Houston Cmty. Coll. Sys. v. Wilson,
142 S. Ct. 1253
, 1259 (2022) (quoting U.S. Const. amend. I). Thus, “as ‘a general matter,’”
the First Amendment “prohibits government officials from subjecting individuals to
‘retaliatory actions’ after the fact for having engaged in protected speech.”
Id.
(quoting Nieves v. Bartlett,
139 S. Ct. 1715
, 1722 (2019)). “To prevail on their
retaliation claim, the plaintiffs must show that ‘they engaged in protected [First
Amendment] activity.’” Molina v. City of St. Louis,
59 F.4th 334, 338
 (8th Cir.
2023) (alteration in original) (quoting Quraishi v. St. Charles Cnty.,
986 F.3d 831, 837
 (8th Cir. 2021)). “If they can make that showing, then the focus shifts to whether
the officers ‘took [an] adverse action . . . that would chill a person of ordinary
firmness from continuing in the [protected] activity.’”
Id.
 (alterations in original)
(quoting Hoyland v. McMenomy,
869 F.3d 644, 655
 (8th Cir. 2017)). Finally, the
plaintiffs must prove the officers “would not have taken the adverse action but for
harboring ‘retaliatory animus’ against the plaintiff[s] because of [the] exercise of


                                           -5-
[their] First Amendment rights.” Mitchell v. Kirchmeier,
28 F.4th 888, 896
 (8th Cir.
2022) (quoting Nieves, 139 S. Ct. at 1722).

       We focus our attention on the third element 3—whether Officer Olsten
deployed his pepper spray in retaliation for the appellants’ exercise of their First
Amendment right to protest. “To prevail on such a claim, a plaintiff must establish
a ‘causal connection’ between the government defendant’s ‘retaliatory animus’ and
the plaintiff’s ‘subsequent injury.’” Nieves, 139 S. Ct. at 1722 (quoting Hartman v.
Moore,
547 U.S. 250, 259
 (2006)). In other words, the plaintiffs must demonstrate
they were “singled out” due to their protected expression. Baribeau v. City of
Minneapolis,
596 F.3d 465, 481
 (8th Cir. 2010). “If the response was driven not by
‘animus’ but by the defendant’s understanding—however mistaken—of his official
duties, then it was not ‘retaliatory.’” Mitchell,
28 F.4th at 896
.

       Aldridge focuses his attention on the fact that he asked Officer Olsten a
question shortly before he was pepper sprayed. While others in the crowd, such as
Brandy, were more verbally antagonistic to Officer Olsten, the only question in the
record asked by Aldridge was, “Y’all f***ing tase him?,” referring to another
protestor’s arrest. Officer Olsten responded, “I didn’t tase him.” After this brief
exchange, an unknown protestor can be heard shouting something. Officer Olsten
argues this was the precipitating incident for deploying the pepper spray as he
believed this unknown protestor shouted, “shoot these motherf***ers.” Aldridge,
however, argues Officer Olsten was “singling out those protestors standing in front
of him and doing so because they were questioning the police and protesting their
activities.” Aldridge also points out that Officer Olsten “made a wide arc” and
“targeted people who were within a 20-foot diameter,” which Aldridge believes



      3
       The City Officials do not dispute that Officer Olsten’s deployment of pepper
spray satisfies the ordinary firmness test but the City Officials do contend the
appellants were not engaged in protected First Amendment activity immediately
preceding Officer Olsten’s use of pepper spray.

                                        -6-
demonstrates Officer “Olsten was using the pepper spray for punitive reasons rather
than for his protection.”

       It is true that Aldridge was standing near Officer Olsten and that he asked
Officer Olsten a question shortly before Officer Olsten deployed his pepper spray.
But “[g]enerally, ‘more than a temporal connection is required to present a genuine
factual issue on retaliation.’” Tyler v. Univ. of Ark. Bd. of Trs.,
628 F.3d 980, 986
(8th Cir. 2011) (quoting Peterson v. Scott Cnty.,
406 F.3d 515, 524
 (8th Cir. 2005)).
There is no evidence in the record of Officer Olsten indicating animus toward
Aldridge or singling him out. From the video it is evident that Officer Olsten did
make a “wide arc” while deploying the pepper spray, but this fact supports Officer
Olsten’s argument that no individual was targeted for his or her speech. Rather, this
fact creates an “obvious alternative explanation” for the use of force, that Officer
Olsten was utilizing the pepper spray as a crowd control mechanism rather than
retaliating against a particular protestor. Laney v. City of St. Louis,
56 F.4th 1153, 1158
 (8th Cir. 2023) (quoting Auer v. City of Minot,
896 F.3d 854
, 860–61 (8th Cir.
2018)).

       Franks and Brown argue that whether Officer Olsten’s motivation was
retaliatory in nature is a question of fact for the jury. They contend the district court
in each case erred by essentially requiring them to “provide specific proof of [Officer
Olsten’s] improper motive,” which Quraishi forbids.
986 F.3d at 838
. To begin,
Quraishi was an interlocutory appeal, which means we had no jurisdiction to review
the district court’s determination about what factual issues were genuine and we
were limited to legal questions.
Id.
 at 834–35. While the Quraishi panel did not
require “specific proof” of the officer’s improper motive, it did confirm that the
plaintiffs’ First Amendment activity must “motivate” the officer’s conduct.
Id. at 838
. We emphasized that there were other protestors in the immediate vicinity, but
only the reporters filming the scene were tear-gassed.
Id.
 Because the officer
“singled out” the reporters, his motive was not “so free from doubt as to justify
taking it from the jury.”
Id.
 (quoting Revels v. Vincenz,
382 F.3d 870, 876
 (8th Cir.
2004)).
                                          -7-
       The case at hand is distinguishable. In Quraishi, there was evidence the
officers singled out the reporters by intentionally pepper spraying only them while
avoiding all other protestors in the area.
986 F.3d at 838
. Here, by contrast, the
appellants admit that “every other non-police officer in the vicinity[] was actively
involved in a protest” and that Officer Olsten “mov[ed] his arm side to side and
indiscriminately spray[ed] numerous protestors.” One cannot simultaneously single
out the appellants and “indiscriminately” spray the crowd. And there is no evidence
in the record that either Franks or Brown had any interaction with Officer Olsten,
that Officer Olsten was aware of their presence, or that either did anything to
differentiate themselves from the other protestors in the crowd. While Franks argues
she was filming the protest, there is no evidence Officer Olsten observed her filming
or deployed pepper spray in retaliation for her doing so.

      Regardless of whether Officer Olsten’s action was appropriate or reasonable4
under the circumstances, the lack of evidence causally connecting Officer Olsten’s

      4
        The district court concluded that because “Aldridge base[d] his First-
Amendment-retaliation claim on an allegation of excessive force by Officer
Olsten[,] . . . the Court’s analysis above regarding Aldridge’s Fourth-Amendment
claim applies to his First-Amendment claim as well.” The district court then held
that Aldridge’s First Amendment claim must fail as “Officer Olsten’s use of pepper
spray was objectively reasonable . . . .” However, the analyses for First Amendment
claims and Fourth Amendment claims are distinct. For a retaliation claim, the issue
presented is not whether the officer’s use of force was “reasonable,” but rather
whether the use of force was retaliatory. “[R]etaliatory conduct does not itself need
to be a constitutional violation in order to be actionable.” Cody v. Weber,
256 F.3d 764, 771
 (8th Cir. 2001). A police officer who singles out a citizen for retaliatory
use of force because of protected expression may be held liable if the adverse action
causes an actionable injury that would chill a person of ordinary firmness from
continuing in the protected activity. See Baribeau,
596 F.3d at 481
. Conversely,
even if an officer makes an unreasonable mistake regarding the use of force, he is
not liable for First Amendment retaliation unless a plaintiff proves the officer was
motivated by retaliatory animus. See Mitchell, 28 F.4th at 897–98; Baribeau,
596 F.3d at 481
. Because we may affirm the grant of summary judgment on any ground
supported by the record, Adam & Eve Jonesboro, LLC v. Perrin,
933 F.3d 951
, 958
                                           -8-
adverse action of using pepper spray to the appellants’ protected expression is fatal
to the retaliation claims. The district court’s grants of summary judgment in favor
of Officer Olsten are affirmed.

                                   B. Monell Claims

       Each appellant additionally challenges the dismissal of their claims against
the City of St. Louis under Monell v. Department of Social Services of City of New
York,
436 U.S. 658
 (1978). “[U]nder § 1983, local governments are responsible only
for ‘their own illegal acts.’” Connick v. Thompson,
563 U.S. 51, 60
 (2011) (quoting
Pembaur v. Cincinnati,
475 U.S. 469, 479
 (1986)). “They are not vicariously liable
under § 1983 for their employees’ actions.” Id. We have “consistently recognized
a general rule that, in order for municipal liability to attach, individual liability first
must be found on an underlying substantive claim.” Moore v. City of Desloge,
647 F.3d 841, 849
 (8th Cir. 2011) (quoting McCoy v. City of Monticello,
411 F.3d 920, 922
 (8th Cir. 2005)). Therefore, because there is no evidence to support each of the
appellants’ First Amendment retaliation claims, we also affirm the district court’s
grant of summary judgment in favor of the City of St. Louis on the Monell claims.

                            C. Supplemental Jurisdiction

       Finally, the appellants argue their state law claims should be reinstated after
the district court declined to exercise supplemental jurisdiction. “A district court’s
decision whether to exercise [supplemental] jurisdiction after dismissing every claim
over which it had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc.
v. HIF Bio, Inc.,
556 U.S. 635, 639
 (2009). Since the decision to exercise
supplemental jurisdiction over the remaining state law claims is discretionary rather
than jurisdictional, we review for abuse of discretion. Crest Const. II, Inc. v. Doe,
660 F.3d 346, 359
 (8th Cir. 2011). District courts should consider such factors as


(8th Cir. 2019), we affirm summary judgment on Aldridge’s claim under the First
Amendment retaliation standard.
                                      -9-
“the circumstances of the particular case, the nature of the state law claims, the
character of the governing state law, and the relationship between the state and
federal claims . . . .” City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 173
(1997). “[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine
. . . will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Wilson v. Miller,
821 F.3d 963, 971
 (8th Cir. 2016) (quoting Johnson v.
City of Shorewood,
360 F.3d 810
, 819 (8th Cir. 2004)). We detect no abuse of
discretion here. Appellants provide no compelling reason to second guess the
district court’s exercise of discretion. We affirm the dismissal of each appellant’s
state law claims.

                                  III. Conclusion

      For the reasons stated above, we affirm the judgments of the district court
against the appellants.
                        ______________________________




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