Snider v. City of Cape Girardeau

861 F. Supp. 2d 974, 2012 WL 966639, 2012 U.S. Dist. LEXIS 38260
CourtDistrict Court, E.D. Missouri
DecidedMarch 21, 2012
DocketCase No. 1:10-CV-100 (CEJ)
StatusPublished

This text of 861 F. Supp. 2d 974 (Snider v. City of Cape Girardeau) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snider v. City of Cape Girardeau, 861 F. Supp. 2d 974, 2012 WL 966639, 2012 U.S. Dist. LEXIS 38260 (E.D. Mo. 2012).

Opinion

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court on cross-motions for summary judgment filed by plaintiff Frank L. Snider, III, and defendants City of Cape Girardeau, H. Morley Swingle, and Matthew Peters. All issues are fully briefed.

This case arises from an incident in which Snider slashed a United States flag and threw it on the ground because he was angry with the government. Plaintiff was initially charged with violating a Cape Girardeau city ordinance and was later charged with violating Missouri’s flag desecration statute, § 578.095, Mo.Rev.Stat. He brings this action pursuant to 42 U.S.C. § 1983, against the City of Cape Girardeau, H. Morley Swingle, the prosecutor for Cape Girardeau County, and Matthew Peters, a City police officer. Plaintiff claims that the defendants’ actions deprived him of his rights under the First, Fourth and Fourteenth Amendments. Plaintiff seeks a declaration that the ordinance are unconstitutional and an injunction barring its future enforcement.1

[976]*976I. Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the moving party shows “that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” In ruling on a motion for summary judgment the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P. 56(e)). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. Background

On October 20, 2009, while standing in his front yard, Snider attempted to set fire to a United States flag. When he was unable to ignite the flag, he shredded it with a knife and threw it on the ground. A neighbor called the police and told the dispatcher, “[H]e’s cut the United States flag up with a knife, throw’d it out in the street for the cars to run over; now I am a United States citizen and I don’t like it ... You need to come down and do something with him.” PL Ex. 2-B [Doc. 41-4].

Defendant Peters was dispatched to respond to what he understood to be a dispute between neighbors. Wflien Peters arrived at the scene, he saw the flag in the road and plaintiff standing in his yard. He issued plaintiff a citation for violating the city’s littering ordinance, § 22-74.2 Id. At the conclusion of the encounter, Peters told the dispatcher that he had issued plaintiff a “summons for tearing up the American flag and throwing it in the middle of the street.” Pl. Ex. 2-E [Doc. 41-7]. The littering citation was eventually voided.

Peters seized the flag as evidence and returned to the police station. It was then that he learned of a state statute prohibiting flag desecration. After reviewing the statute, § 578.095 Mo.Rev.Stat., Peters drafted a probable cause statement indicating that he believed that plaintiff had committed the criminal offense of desecration of the United States flag. He sent the probable cause statement to defendant Swingle, who obtained a warrant. On October 23, 2009, Peters executed the warrant and arrested plaintiff for violating § 578.095 Mo.Rev.Stat. Plaintiff was held in jail for eight hours.

[977]*977In an affidavit, Swingle states that at the time of this incident he was unaware of the decision in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), in which the United States Supreme Court held that a Texas statute criminalizing flag desecration was unconstitutional. Upon reading the case, Swingle dismissed the charge against plaintiff and plaintiff was released from the county jail.

At the time of the incident, a Cape Girardeau city ordinance prohibiting flag desecration was in effect. Ordinance § 17-5 provided:

Any person who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the state flag of the state of Missouri is guilty of the crime of flag desecration.

Section 578.095 and Ordinance § 17-5 contain identical language. Plaintiff was never charged with violating Ordinance § 17-5. On February 22, 2011, the Cape Girardeau city council repealed the flag desecration ordinance.

III. Discussion

In the second amended complaint, plaintiff claims that Peters violated his rights under the First, Fourth, and Fourteenth Amendments and he seeks compensatory and punitive damages (Count IV). He also asserts that the violation of his rights occurred pursuant to a policy, practice, or custom of the City of Cape Girardeau (Count V). In addition, plaintiff seeks a declaration that the repealed Cape Girardeau flag desecration ordinance is unconstitutional (Count II). Finally, plaintiff seeks an injunction preventing Swingle from enforcing § 578.095 and Ordinance § 17-5 (Count III). In the cross-motion for summary judgment, Peters asserts that he is entitled to qualified immunity, and the City asserts that there is no basis for municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

A. Plaintiff’s Claims Against Peters

Plaintiff claims that Peters violated his constitutional rights by: (1) conducting an investigatory detention without probable cause; (2) issuing a citation for littering without probable cause; (3) executing an improper probable cause statement in support of an arrest warrant for flag desecration; and (4) arresting him pursuant to the warrant.

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Bluebook (online)
861 F. Supp. 2d 974, 2012 WL 966639, 2012 U.S. Dist. LEXIS 38260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snider-v-city-of-cape-girardeau-moed-2012.