Missouri Flag Desecration Statute Held Facially Unconstitutional, Attorney’s Fees Properly Assessed

The U.S. Court of Appeals for the Eighth Circuit has affirmed a district court’s holding that a Missouri flag desecration statute was facially unconstitutional and has held that the district court did not abuse its discretion in awarding attorneys’ fees.

Missouri resident Frank Snider filed suit in the U.S. District Court for the Eastern District of Missouri against the City of Cape Girardeau (“Cape Girardeau”), Cape Girardeau Police Officer Matthew Peters and Cape Girardeau Prosecutor H. Morley Swingle after charges had been filed and dismissed, pursuant to a flag desecration statute, against Snider for destroying an American flag. Among other claims, Snider alleged that the statute violated the First Amendment and that Cape Girardeau failed to adequately train its officers. Snider sought injunctive relief and damages. The state of Missouri intervened and all parties sought summary judgment. Swingle’s and Cape Girardeau’s motions were granted. Snider’s motions against Peters and Missouri were granted. The district court issued an injunction proscribing the enforcement of the statute, and at trial, the district court assessed damages against Peters and costs and attorneys’ fees against Peters and Missouri. Peters, Missouri and Snider appealed. On May 30, 2014, the appellate court affirmed the judgment.

On October 20, 2009, Snider shredded an American flag on his front lawn and threw it into the street. A neighbor called the police and Officer Peters issued Snider a citation for littering, which was later nullified. Pursuant to Missouri’s flag desecration statute, Office Peters returned with a warrant on October 23, 2009, and arrested Snider. A local reporter subsequently informed Prosecutor Swingle of a federal case prohibiting the criminalization of flag desecration. After eight hours of incarceration, Snider was released and the charges were dropped.

Snider filed suit on July 6, 2010, in the district court against Cape Girardeau and Peters, later adding Swingle. Missouri intervened in the suit on April 21, 2011. Snider claimed several constitutional violations due to his arrest and challenged the constitutionality of Missouri’s flag desecration statute and Cape Girardeau’s flag desecration ordinance. He also alleged that Cape Girardeau: (1) maintained policies and practices demonstrating deliberate indifference to the rights of its citizens; and (2) failed to properly train its police officers. Snider sought injunctive relief and nominal and punitive damages.

Snider filed motions for summary judgment against all the defendants and the defendants filed motions for summary judgment against Snider. The district court granted Snider’s motion against Missouri, issuing an injunction to prevent the enforcement of the desecration statute. Snider’s motion against Cape Girardeau, however, was denied as Snider has not been arrested under the identical ordinance. The district court denied Snider’s motion against Swingle, the claim being moot, and additionally denied Peter’s motion seeking qualified immunity, determining that Peters had violated Snider’s First and Fourth Amendment rights.

On December 14, 2012, after a trial assessing damages, Snider was awarded $7,000 in actual damages against Peters, and judgment was entered in Cape Girardeau’s favor. Holding them jointly and severally liable, the district court further ordered Peters and Missouri to pay $61,890 in attorney’s fees and $266.68 in costs. Peters, Missouri and Snider appealed.

Peters challenged the denial of his qualified immunity defense. The appellate court held specifically that Peters was not entitled to this defense as the prohibition of flag desecration as a criminal offense “had been clearly established for twenty years when Officer Peters arrested Snider;…thus a reasonably competent officer would have known Snider’s expressive conduct was constitutionally protected.” Peters responded that he had “acted in an objectively reasonable manner” because a judge had issued the warrant. The appellate court countered that qualified immunity is not available where “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.”

Both Peters and Missouri claimed that the district court had abused its discretion by not apportioning the attorney’s fees between them and not reducing the attorney’s hourly rates. The appellate court disagreed with both arguments, concluding that no abuse of discretion had been demonstrated by not apportioning the fees and that the higher hourly rates were reasonable where the attorneys were experienced in First Amendment litigation and local, cheaper counsel could not be obtained.

Missouri further argued that its flag desecration statute be limited to nonexpressive conduct and alleged that the district court erroneously declared the statute facially unconstitutional. The appellate court found that the statute’s language could not limit its construction to nonexpressive conduct; being that the statute’s overbreadth “criminalize[ad] a substantial amount of expressive activity,” activity protected by the First Amendment, the appellate court held that the district court’s judgment had not been erroneous.

Finally, the appellate court rejected Snider’s arguments that the district court had erred in not finding that Cape Girardeau had a practice of criminalizing protected conduct through its ordinance and that Cape Girardeau had failed to train Peters. First, Snider had not been arrested under the ordinance, and second, Cape Girardeau had not been responsible for Peters’ training.

The appellate court, therefore, affirmed the district court’s judgment. See: Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. Mo. 2014).

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