Trinity Cross v. Joseph J. Mokwa, etc

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-3110
___________

Trinity Cross; Molly Dupre; Arthur *
Friederichs;1 Daniel Green; Mary *
Hastings; Joseph Locey; Kelly Meister; *
Alistair Neill Stewart; Celeste Verheist,
*
* Appeal from the United States
Plaintiffs - Appellees, * District Court for the
* Eastern District of Missouri.
v. *
*
Joseph J. Mokwa, Police Chief, et al., *
*
Defendants - Appellants, *
___________

Submitted: May 12, 2008
Filed: November 14, 2008
___________

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.
___________

LOKEN, Chief Judge.

The World Agricultural Forum (WAF) planned a conference in St. Louis in late
May 2003. The St. Louis Police Department learned that prior WAF conferences in
Boston, Washington, and other cities had attracted violent protests instigated by small
anarchist groups that infiltrated peaceful protesters, and that Internet sites were

1
Though his attorneys spelled his name “Friedrich” in appellate pleadings, their
client spelled his own name “Friederichs” at his deposition. We will spell the name
as Friederichs himself spells it.
exhorting out-of-town activists to travel to St. Louis to participate in a counter-
conference called “Biodevastation 7.” The Federal Bureau of Investigation briefed
the police on the history of these violent demonstrations, the tactics violent protesters
used in the past, and the likelihood that potentially violent out-of-town protesters
would stay illegally in unoccupied or condemned buildings. In response, the City
adopted a “Building Code Violation Enforcement Plan” to identify vacant and
condemned buildings and to prevent their unlawful occupation.

On the morning of May 16, 2003, St. Louis Building Inspector John MacEnulty
and several St. Louis police officers went to 3309 Illinois Avenue, a condemned
building, and then to 3022 Cherokee Street, a building identified by MacEnulty as
lacking an occupancy permit. At 3309 Illinois, MacEnulty and the police forcibly
entered, arrested five persons for occupying a condemned building, and searched the
premises. The five were jailed for twenty hours, entered Alford pleas to those charges,
and were placed on probation. At 3022 Cherokee, the police seized and allegedly
damaged personal property of owner Arthur Friederichs but did not issue citations.
These actions, and other police actions not at issue on this appeal, prompted twenty-
five protesters to sue the City and its Mayor, the Board of Police Commissioners, the
Building and Zoning Commission, Inspector MacEnulty, the Police Chief, and several
police officers. Plaintiffs asserted a variety of federal claims under 42 U.S.C. § 1983
and pendent state law claims. The Police Chief and six officers appeal interlocutory
orders denying them qualified immunity from the First Amendment and Fourth
Amendment damage claims of seven plaintiffs arising out of the entries, seizures, and
arrests at 3309 Illinois and the alleged damage to Friederichs’s personal property at
3022 Cherokee. Other claims remain pending in the district court, and still other
claims have been dismissed.

Qualified immunity protects government officials performing discretionary
functions “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.

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Fitzgerald, 457 U.S. 800, 818 & n.30 (1982). Reviewing the denial of qualified
immunity de novo, we reverse in part. See Moore ex rel. Moore v. Briggs, 381 F.3d
771, 772 (8th Cir. 2004) (standard of review).

I. Claims Relating to the Events at 3309 Illinois

The house at 3309 Illinois was condemned as unsafe for occupancy in 1999.
Owner Daniel Green appealed. The Board of Building Appeals granted Green sixty
days to obtain permits and correct deficiencies, which he failed to do. In 2001, Green
requested an additional hearing. The Board again delayed demolition to give him time
to obtain construction drawings and permits. In August 2002, the City notified Green
that the building remained condemned and that any occupants were subject to arrest.2
Before Inspector MacEnulty inspected 3309 Illinois on May 16, 2003, he reviewed
computer records that listed the property as condemned and had a “Condemned
Building Order” prepared and on hand.

On the morning of May 16, plaintiffs Molly Dupre and Kelly Meister were
living at 3309 Illinois with Green’s permission, and Trinity Cross, Joseph Locey, and
Celeste Verhelst were there as Green’s overnight guests. Green, who had moved next
door, was not present but was keeping personal items at the house. Inspector
MacEnulty approached with several police officers and informed those inside that the
building was illegally occupied and must be vacated. An occupant replied, with a
vulgar epithet, “We are not opening the door.” The police forced open the door,
removed and arrested the occupants, and searched the building, seizing a slingshot,

2
The letter from another building inspector advised Green as property owner
that an earlier Certificate of Inspection was revoked and that “the above-mentioned
premise/unit is illegally occupied and subject to Condemnation for Occupancy;
additionally, if said premise/unit, remains occupied, occupants may be subject to
arrest and/or legal proceedings.”

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a sign saying “Kill Police,” a bottle with a rag protruding, PVC pipes, a gasoline
container, and two cans of flammable camper stove fuel.

A. Entry, Search, and Arrest Claims

The five occupants asserted Fourth Amendment claims of unlawful arrest. The
five and Green asserted claims of unlawful entry, search, and seizure. Inspector
MacEnulty and the police officers filed separate motions for summary judgment,
arguing they are entitled to qualified immunity from these damage claims. Plaintiffs
responded that they had a reasonable expectation of privacy in the premises, the
warrantless entry and search violated their clearly established Fourth Amendment
rights, and the arrests were unlawful. The district court dismissed all claims against
Inspector MacEnulty, concluding that his “enforcement of a standing condemnation
order based on probable cause is not violative of the Fourth Amendment, even if
scheduled to benefit an ongoing police investigation.” Plaintiffs did not cross appeal
this ruling; indeed, they did not include the summary judgment memoranda relating
to MacEnulty in the record on appeal. As this ruling is critical to our analysis of the
Fourth Amendment claims against the police officers, it is now law of the case.3

The district court granted the police officers qualified immunity from the claims
of unlawful arrest because the officers had probable cause to believe that the five
persons inside 3309 Illinois were illegally occupying a condemned building. Again,
plaintiffs did not cross appeal that ruling, which was clearly correct.4 However, the

3
Given the nature of a condemnation order -- a determination that an unsafe
structure must be unoccupied until it is repaired or demolished -- and the appeal
process available to and exercised by owner Green to challenge that determination, we
have little doubt the court’s ruling was correct. See Hroch v. City of Omaha, 4 F.3d
693, 696-97 (8th Cir. 1993).
4
A person who is “wrongfully on the premises” may not object to the legality
of a search. Rakas v. Illinois, 439 U.S. 128, 141 & n.9 (1978). Likewise, a person

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court denied the officers qualified immunity on the Fourth Amendment claims of
unlawful entry, search, and seizure of property at 3309 Illinois on the ground that,
unlike Inspector MacEnulty, their primary purpose was to search for evidence of
crime, and no exigent circumstances such as severe disrepair justified entry without
a search warrant. We disagree for two independent reasons.

First, the district court ruled that the condemnation order gave Inspector
MacEnulty authority to enter 3309 Illinois without a warrant, a ruling plaintiffs do not
challenge on appeal. If MacEnulty may enter without a warrant, he may also be
accompanied by police officers, even officers who are also pursuing a criminal
investigation, like the customs inspector in United States v. Villamonte-Marquez, 462
U.S. 579, 584 n.3 (1983), citing Scott v. United States, 436 U.S. 128, 135-39 (1978).
Plaintiffs argue that the “extraordinary manner” of the officers’ warrantless entry
requires a “balancing analysis” focused on the officers’ intent to arrest protesters and
seize their property. But the unlawful arrest claims were dismissed because there was
probable cause to believe plaintiffs were illegally occupying the building. “Subjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”
Whren v. United States, 517 U.S. 806, 813 (1996).

Second, the district court took too narrow a view of the reasonableness, under
the Fourth Amendment, of warrantless entries into condemned buildings. When a
building has been condemned as unsafe for human occupation, it becomes, at least
from the government’s perspective, an abandoned structure. Public health and safety
require that police officers, as well as building inspectors, have the right to access
such structures at any time for a variety of reasons -- to evict illegal occupants, to seek
out and seize contraband and hazardous substances that may be illegally hidden there,
to eliminate dangerous conditions that might injure adventurous trespassers such as

who the police find to be unlawfully occupying a building condemned for occupancy,
and who refuses their command to vacate the premises, may not object to the legality
of their entry and removal by arrest.

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children, and to prepare the premises for safe demolition. Though the parties failed
to brief the issue, that this authority extends to police officers, as well as to code
enforcement officials, is expressly confirmed by Section 119.6 of The Building Code
of the City of St. Louis, adopted in 1999 by City Ordinance 64771:

Vacation of buildings; duties of police; penalty: Upon effecting
condemnation of any building, structure or premises by the code official,
it shall be unlawful for any person to enter or remain in or on such
building, structure or premises . . . . It shall be the duty of the Police to
remove any person from such building, structure or premises so
condemned and to prevent any person from entering same until such time
as the Police Department shall have been notified in writing by the code
official that such building . . . is in compliance with this code.
(Emphasis added).5

Plaintiffs argued, and the district court agreed, that it is at least a jury question
whether plaintiffs had reasonable expectations of privacy giving them standing to
assert these Fourth Amendment claims because they were Green’s invited residents
and guests and had no knowledge the building was condemned. But even if plaintiffs
have standing to assert Fourth Amendment claims, their limited standing as illegal
occupants did not outweigh the authority of the police to enter the premises, when
consent to enter was refused, for the purpose of evicting occupants of a building
condemned as unsafe for human occupancy.6 Whether warrantless entry in these
circumstances is viewed as justified by exigent circumstances, see Welsh v.

5
In 2005, this provision was reenacted as § 118.6 of the Building Code by City
Ordinance 66790.
6
For standing purposes, the district court equated 3309 Illinois to the fire-
damaged premises in Michigan v. Clifford, 464 U.S. 287 (1984), and in Michigan v.
Tyler, 436 U.S. 499 (1978). The issue is not free from doubt. See United States v.
McRae, 156 F.3d 708, 711 (6th Cir. 1998). We need not decide it because, even if the
analogy is sound, whatever standing it confers does not trump the City’s police power
to enter a condemned building that is unfit for human occupancy.
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Wisconsin, 466 U.S. 740, 748-50 (1984), or by the government’s on-going interest in
controlling condemned buildings in the interest of public health and safety, the actions
of the officers in entering without a warrant to arrest the illegal occupants was not
constitutionally unreasonable.

Finally, plaintiffs cite no authority even suggesting, much less clearly
establishing, that the police may not enter a condemned building to search for and
seize contraband, evidence of crime, and items such as flammable liquids that should
not be allowed to remain in an uninhabitable urban structure. Cf. New York v.
Burger, 482 U.S. 691, 716-17 (1987).

For these reasons, the district court’s denial of qualified immunity from these
Fourth Amendment claims is reversed.

B. First Amendment Claims

These six plaintiffs allege that the police officers’ actions at 3309 Illinois
violated their First Amendment right to protest because the Building Code Violation
Enforcement Plan was devised and executed as a prior restraint on protester activities.
The district court denied the police officers qualified immunity on these claims,
concluding that reasonable police officers should have known that “selective and
disproportionate use of police power to prevent the occurrence of a protest” would
violate clearly established First Amendment rights, and that plaintiffs presented
sufficient evidence that “a person of ordinary firmness would be deterred by this State
action.” We disagree.

It is undisputed that protesting peaceably is protected speech. Violent protest
is not. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982)
(“violent conduct is beyond the pale of constitutional protection”). Plaintiffs were not
engaged in protected protest activity on the morning of May 16, 2003. They were
unlawfully occupying a condemned building in which they had improperly stored
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personal property, some of which could have been used in the future to engage in
unprotected violent actions. Plaintiffs claim, in general terms, that their protected
right to protest was chilled by defendants’ pre-protest prior restraint. But plaintiffs
carefully avoid the question whether the police actions in question were aimed at
deterring, and in fact chilled, only unprotected violent protest activity. This
distinction, ignored by the district court, is obviously critical.

Plaintiffs (other than Green) were lawfully arrested for illegally occupying a
condemned building, and their property was properly removed from that structure.
In these circumstances, their First Amendment claims fail for the same reason that the
Supreme Court reversed a First Amendment overbreadth decision in Virginia v. Hicks,
539 U.S. 113, 123 (2003):

Neither the basis for the [trespass] sanction . . . nor its purpose . . . has
anything to do with the First Amendment. Punishing its violation by a
person who wishes to engage in free speech no more implicates the First
Amendment than would the punishment of a person who has (pursuant
to lawful regulation) been banned from a public park after vandalizing
it, and who ignores the ban in order to take part in a political
demonstration. Here, as there, it is Hicks’ nonexpressive conduct . . . not
his speech, for which he is punished as a trespasser. (Emphasis in
original.)

The district court itself, relying on Williams v. City of Carl Junction, 480 F.3d 871
(8th Cir. 2007), concluded that because there was probable cause to enforce the
housing ordinance, the plaintiffs could not succeed on a claim of “selective
enforcement” under the First Amendment with respect to proper code enforcement
actions. This is a correct statement of the law of this circuit. See Smithson v. Aldrich,
235 F.3d 1058, 1063 (8th Cir. 2000); see also Barnes v. Wright, 449 F.3d 709, 720
(6th Cir. 2006) (cited favorably in Williams, 480 F.3d at 876); cf. Foster v. Metro.
Airports Comm’n, 914 F.2d 1076, 1080-81 (8th Cir. 1990).

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 The district court posited that a “disproportionate police response” was
sufficient to raise a genuine First Amendment issue of “selective enforcement.”
Neither the court nor plaintiffs on appeal cite any authority for the proposition that a
policeman’s decision to enforce a traffic law or a provision of the housing code, for
example, is unconstitutional if it can be shown that he has enforced that law in a
“selective” manner, not to retaliate for the violator’s prior First Amendment protected
activity, but to “chill” future First Amendment activity that the violator may be
contemplating. We have found no federal appellate case granting or upholding First
Amendment relief on this ground. The theory was alluded to and rejected in Reno v.
Arab-American Anti-Discrimination Committee, 525 U.S. 471, 491 (1999), where the
Supreme Court observed, “The contention that a violation must be allowed to continue
because it has been improperly selected is not powerfully appealing,” but did not “rule
out the possibility of a rare case in which the alleged basis of discrimination is so
outrageous that the foregoing considerations can be overcome.” Here, plaintiffs do
not identify the “disproportionate police response” that rendered the police conduct
at 3309 Illinois so outrageous. The district court focused on the search of the premises
and the seizure of plaintiffs’ property after they were arrested, but we conclude that
this police conduct was objectively reasonable when dealing with the illegal occupants
of a structure that has been condemned for occupancy.

At a minimum, it was not clearly established in 2003 that a police officer could
be liable on a “prior restraint” theory for making arrests that were supported by
probable cause and then conducting a reasonable search and seizure of a condemned
building. For these reasons, the district court’s denial of qualified immunity from
these First Amendment claims is reversed.

C. Trinity Cross’s Strip Search Claims

Paragraph 82 of plaintiffs’ Second Amended Complaint alleged that, when she
was arrested, “Trinity Cross . . . was subject to an unlawful strip search, a violation
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of Missouri Statute, Title XXXVII, Section 544.193, pursuant to Section 544.195. . . .
[T]he individual Defendants are liable for these state law violations.” In her
deposition, Cross testified that an unidentified female police officer, while performing
a pat-down search outside of 3309 Illinois, lifted up Cross’s shirt, exposing her bare
breasts to those present, and pulled her pants down four inches below the top of her
underwear.

In memoranda supporting their motion for summary judgment, defendants
argued that (i) Cross failed to show she was subjected to a strip search, and (ii) in any
event, defendants are entitled to official immunity and protection under the public
duty doctrine from these state law claims. Plaintiffs’ memorandum in opposition
likewise argued only the state law immunity issues. The district court -- after
concluding that Cross was arguably subjected to a strip search -- denied the police
officers qualified immunity from a Fourth Amendment strip-search claim that
seemingly was not pleaded and clearly was not argued, and then denied defendants’
claims of immunity under state law without further discussion.

On appeal, defendants shift gears entirely, arguing that they are entitled to
qualified immunity because Cross presented “no evidence that any of the defendants
were directly involved in this strip search performed by an unnamed female officer.”
We decline to consider this fact-intensive issue because it is raised for the first time
on appeal. We agree with defendants that, if the issue is properly raised, “each
defendant’s conduct must be independently assessed” in considering a multi-defendant
motion for summary judgment on grounds of qualified immunity because liability for
damages for a federal constitutional tort is personal. Wilson v. Northcutt, 441 F.3d
586, 591-92 (8th Cir. 2006); see Clark v. Long, 255 F.3d 555, 559 (8th Cir. 2001).
Here, Cross testified that a female officer performed the search, and only one named
defendant is a female officer who was present at 3309 Illinois, so at least some of the
officer defendants appear to be entitled to qualified immunity from this claim. But the
issue must be considered in the first instance by the district court.

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 II. Claims Relating to the Events at 3022 Cherokee

After leaving 3309 Illinois, Inspector MacEnulty, accompanied by several
police officers, went to nearby 3022 Cherokee. Acting on a “Project 87 Nuisance
Property Form” that cited major structural deficiencies and overcrowding, MacEnulty
asked owner Friederichs for consent to enter. Friederichs asked if he could refuse.
MacEnulty said that failure to consent would result in an immediate order to vacate.
Friederichs claims he consented only to MacEnulty entering and objected when police
officers accompanied the inspector. Inside, the police saw what they believed were
instruments of crime associated with violent protests. They returned later with a
search warrant and seized, among other items, lighter fluid, clay spikes, a box of nails,
a fuel canister, computer equipment, a large paper-mache doll resembling a police
officer, gas masks, two-way radios, a chain, a box of mirrors, climbing equipment, a
pottery kiln, and clay. Plaintiffs’ complaint alleged that the “search of, seizing, and
damaging this property” violated Friederichs’s First and Fourth Amendment rights.

In the district court, defendants moved for summary judgment on the grounds
that consensual entry and inspection of property lacking a valid occupancy permit did
not contravene the Fourth Amendment, and that the First Amendment claim failed for
lack of evidence of selective enforcement or chilling effect. Plaintiffs responded that
Friederichs’s consent was involuntary, and that these enforcement actions were
intended to chill and did in fact chill Friederichs from exercising his First Amendment
right to protest by attending Biodevastation 7. Plaintiffs also challenged the validity
of the Project 87 form and the search warrant.

The district court (i) granted Inspector MacEnulty qualified immunity based
upon Friederichs’s consent to enter and inspect, (ii) denied the police officers
qualified immunity from Friederichs’s Fourth Amendment claims because consent to
enter and the alleged property damage were disputed facts, and (iii) denied the police
officers qualified immunity from Friederichs’s First Amendment claim because

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“whether this police action constituted selective enforcement” was also a genuine
issue of disputed fact.

On appeal, defendants argue they are entitled to qualified immunity from
Friederichs’s Fourth Amendment claims because he presented no evidence that any
named defendant damaged his property. This, too, is an issue we decline to consider
because defendants did not raise it in the district court. Our jurisdiction to review an
interlocutory order denying immunity is limited to determining “whether all of the
conduct that the district court deemed sufficiently supported for purposes of summary
judgment violated the plaintiff’s clearly established federal rights.” Walker v. City of
Pine Bluff, 414 F.3d 989, 991 (8th Cir. 2005) (emphasis added) (internal quotation
omitted). Defendants further argue they are entitled to qualified immunity from
Friederichs’s First Amendment claim because “no reasonable officer would have
known that the entry and inspection of premises as part of enforcement of city
ordinances” would chill a person of ordinary firmness from engaging in
constitutionally protected speech. However, the limited record on appeal supports the
district court’s conclusion that there are genuine fact disputes regarding the validity
of the Project 87 form, whether 3022 Cherokee was beset with major structural
deficiencies and overcrowding, and whether Friederichs’s personal property was in
fact ransacked and damaged and, if so, for what reason. Accordingly, the
interlocutory order denying qualified immunity on these First and Fourth Amendment
claims must be affirmed.

III. Conclusion

The order of the district court dated August 15, 2007, is affirmed in part and
reversed in part, and the case remanded for further proceedings not inconsistent with
this opinion. In a separate order dated August 17, 2007, the court denied Police Chief
Joseph Mokwa’s motion for qualified immunity from claims relating to the police
actions at 3309 Illinois and 3022 Cherokee. That order was appealed, but the issue

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was not briefed and therefore we do not consider it. The district court may of course
revisit this order on remand.

BYE, Circuit Judge, concurring in part, dissenting in part, and concurring in the
judgment in part.

Although I concur in the remainder of the opinion, I disagree with the majority's
holding in regard to the 3309 Illinois property.

I. The District Court Correctly Determined the Police Officers Were Not Entitled
to Qualified Immunity for Their Warrantless Search of 3309 Illinois.

Under the law-of-the-case doctrine, I am bound by the district court’s holding
that Inspector MacEnulty’s warrantless entry into 3309 Illinois for purposes of an
administrative search did not violate the Fourth Amendment. See First Union Nat’l
Bank v. Pictet Overseas Trust Corp., 477 F.3d 616, 620 (8th Cir. 2007) (holding the
law-of-the-case doctrine applies to final decisions by the district court that have not
been appealed). This holding is final because, at the plaintiffs’ request, the district
court entered final judgment on their Fourth Amendment claim against Inspector
MacEnulty pursuant to Federal Rule of Civil Procedure 54(b). And, although the
plaintiffs initially sought to appeal this determination, the appeal was later voluntarily
dismissed. Therefore, I am bound by the district court’s holding.

The majority expresses “little doubt” it was correct. I disagree. Except in
closely-regulated industries, administrative searches are subject to the Fourth
Amendment’s warrant requirement. Michigan v. Clifford, 464 U.S. 287, 294 (1984);
Michigan v. Tyler, 436 U.S. 499, 506 (1978); Marshall v. Barlow’s, Inc., 436 U.S.
307, 324 (1978); Camara v. Municipal Court of City and County of San Francisco,
387 U.S. 523, 534 (1967); See v. City of Seattle, 387 U.S. 541, 545 (1967). Thus,
Inspector MacEnulty was required to obtain an administrative warrant.

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 Hroch v. City of Omaha, 4 F.3d 693 (8th Cir. 1993), is inapposite. In Hroch,
the appellee had received a final notice of condemnation of his property and had
sought to enjoin its demolition, which the state court denied. Id. at 695. Hroch argued
his Fourth Amendment rights were violated when his buildings were demolished
without a warrant. Id. at 696. This Court disagreed. Id. at 697. In reaching its
holding, the Court expressly relied upon the completion of administrative proceedings
and subsequent judicial review, as well as the diminished privacy interests in a non-
occupied commercial property. Id. at 696-97; see also Freeman v. City of Dallas, 242
F.3d 642, 654 (5th Cir. 2001) (holding the warrantless demolition of vacant
commercial property did not violate the Fourth Amendment where administrative
condemnation proceedings were completed).

In contrast, Green had not received a final notice of condemnation, and 3309
Illinois was an occupied residence. Indeed, in February 2002, after the housing
inspector found none of the structural problems that were the basis of the structural
condemnation notice, Green was granted a Certificate of Occupancy. Although this
certificate was revoked in August 2002, and Green was provided a list of minor
repairs to be made, the notice merely stated “[a] reinspection will be made in or about
30 days to determine your progress in correcting these violations . . . . [I]f no progress
is being made . . . , the Code Official may . . . condemn for occupancy.” Green then
applied for, and received, a building permit in September 2002, and commenced
making the repairs.

Thus, although the property might have remained technically condemned as of
the date of the warrantless search, it is clear administrative proceedings were on-
going. Inspector MacEnulty, therefore, needed an administrative warrant to enter the
premises. See Camara, 387 U.S. at 534 (holding administrative searches by a housing
inspector require a warrant).

Nonetheless, assuming, as I must, Inspector MacEnulty could enter 3309
Illinois without a warrant to conduct an administrative search, the majority relies upon
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United States v. Villamonte-Marquez, 462 U.S. 579 (1983), to conclude the police
officers could accompany him to pursue a criminal investigation.

Villamonte-Marquez, however, is factually limited to searches of sea vessels
located in waters providing ready access to the open sea. 462 U.S. at 581. The
Supreme Court expressly distinguished searches of such sea vessels from those of
automobiles on land. Id. at 584-92. In particular, the First Congress expressly
authorized the suspicionless boarding of sea vessels. Id. at 584 (Act of Aug. 4, 1790,
ch. 35, 1 Stat. 164). “As this Act was passed by the same Congress which proposed
for adoption the original amendments to the Constitution, it is clear that the members
of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and
they are not embraced within the prohibition of the amendment.” Id. at 586-87
(quoting Boyd v. United States, 116 U.S. 616, 623 (1886)). The Court then specified
several factual differences between “vessels located in waters offering ready access
to the open sea and automobiles on principal thoroughfares in the border area,”
including the nature of waterborne commerce and the extent and type of
documentation required. See id. at 588-93.

Despite the Supreme Court’s refusal to extend its holding in Villamonte-
Marquez to automobiles—in which a person has a lesser expectation of privacy than
in a home, see South Damkota v. Opperman, 428 U.S. 364, 367 (1976)—the majority
extends its holding to encompass the warrantless search of a home. It strains credulity
that Villamonte-Marquez extends to searches of a home where Fourth Amendment
protections are at their zenith. See Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (“It
is axiomatic that the physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.”) (internal quotation marks omitted).
The majority thus erroneously concludes the police officers could enter to conduct a
criminal search merely because Inspector MacEnulty could enter to conduct an
administrative search.

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 Rather, because their purpose was criminal, not administrative, the police
officers were required to obtain a criminal warrant. See Clifford, 464 U.S. at 294, 298.
In Clifford, arson investigators went to the Cliffords’ house some five hours after a
fire was extinguished. Id. at 290. Without an administrative or criminal warrant, they
searched the basement and determined the fire originated there. Id. at 290-91. They
then searched the remainder of the house. Id. at 291. The Cliffords were subsequently
charged with arson, for which probable cause was established based on evidence
obtained during the warrantless search. Id. at 289.

After reaffirming that “administrative searches generally require warrants,” id.
at 291, the Court held the purpose of a search was dispositive: “[i]f the primary object
[of the search] is to determine the cause and origin of a recent fire, an administrative
warrant will suffice”; but, “[i]f the primary object of the search is to gather evidence
of criminal activity, a criminal search warrant [must] be obtained . . . .” Id. at 294.

The Court then made very clear that, once an administrative search turns into
a search for criminal activity, a warrant is required. Id. at 294, 298. Because the
investigators determined the cause and origin of the fire to be in the basement, “the
search of the [remainder] of the house . . . could only have been a search to gather
evidence of the crime of arson.” Id. at 297. Thus, even if the basement search was
a valid administrative search (which the Court held it was not), the search of the
remainder of the house required a criminal warrant. Id. at 298 (“Although the
investigators could have used whatever evidence they discovered in the basement to
establish probable cause to search the remainder of the house, they could not lawfully
undertake that search without a prior judicial determination that a successful showing
of probable cause had been made.”).

Here, any administrative search quickly became a criminal search. The police
officers accompanying Inspector MacEnulty do not dispute the primary object of their
search was to gather evidence of criminal activity. Under Clifford, they were

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therefore required to secure a criminal warrant, and their failure to do so violated the
Fourth Amendment.7

This analysis does not change because 3309 Illinois was condemned.8 As the
Clifford court held, unless a house is in “ash and ruins,” reasonable privacy
expectations remain even if a home is uninhabitable. Id. at 292; see also Tyler, 436
U.S. at 505 (“[E]ven if the petitioner’s contention that arson established abandonment
be accepted” and the house is uninhabitable, a home owner’s expectation of privacy
in her personal effects remains subject to Fourth Amendment protection.).

Significantly, all of the cases holding an individual occupying a property
illegally does not have a reasonable expectation of privacy are cases where the
individual knew his occupancy to be illegal. See, e.g., United States v. Hunyady, 409
F.3d 297, 300-03 (6th Cir. 2005).9 Although these cases may support a holding Green

7
Whren v. United States, 517 U.S. 806 (1996), is not to the contrary. In fact,
Whren specifically distinguishes administrative searches. 517 U.S. at 811-12 (“[W]e
never held, outside the context of inventory search or administrative inspection . . . ,
that an officer’s motive invalidates objectively justifiable behavior under the Fourth
Amendment . . . .”) (emphasis added); see also City of Indianapolis v. Edmond, 531
U.S. 32, 46 (2000) (“Whren does not preclude an inquiry into programmatic purpose
. . . .”).
8
The majority relies upon the Building Code of the City of St. Louis to find
otherwise. Although prior Eighth Circuit precedent may have looked to state law to
determine what is reasonable under the Fourth Amendment, see Bissonette v. Haig,
800 F.2d 812, 815 (8th Cir. 1986), the Supreme Court has recently held this approach
to be incorrect, Virginia v. Moore, 128 S. Ct. 1598, 1604 (2008). Because "state law
[does] not alter the content of the Fourth Amendment," a city ordinance may not
condone what the Fourth Amendment proscribes. Id.
9
Similarly, in Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court's
examples of “ wrongful presence” for which a defendant did not have a legally
protected expectation of privacy, involved situations where the defendant knew his
presence to be unlawful. Id. at 141 n.9 (automobile thief does not have a reasonable
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did not have a reasonable expectation of privacy because he knew 3309 Illinois was
condemned, Dupre, Meister, Cross, Locey, and Verhelst did not know the property
was condemned.10 Their reasonable expectation of privacy in the home was intact.11

Nor did exigent circumstances justify the officers’ warrantless entry. There is
no evidence the building was in severe disrepair. Occupying a condemned building
is a minor violation—one for which persons typically are not arrested if they vacate
willingly. When the underlying offense for which there is probable cause to arrest is
minor, courts are especially hesitant to find exigent circumstances justifying
warrantless entry into a home. Welsh, 466 U.S. at 750. Moreover, in Clifford, the
Supreme Court held “[t]he object of the search is important [and a warrant may be
required] even if exigent circumstances exist.” 464 U.S. at 294 (emphasis added).

Accordingly, Dupre, Meister, Cross, Locey, and Verhelst had a reasonable
expectation of privacy in 3309 Illinois, which the police officers violated when
conducting a warrantless search for criminal activity. Because their constitutional

expectation of privacy in the stolen automobile); id. at 143 n.12 ("burglar plying his
trade in a summer cabin during the off season" does not have a reasonable expectation
of privacy in the cabin).
10
As overnight guests of Dupre and Meister, Cross, Locey, and Verhelst had a
reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 96-97
(1990).
11
There have been other documented cases in St. Louis of landlords renting
condemned properties. See Court Order Stops Landlords from Renting Condemned
Property, Saint Louis Front Page, Mar. 16, 2001,
http://www.slfp.com/031601City.htm (St. Louis business enjoined from renting
condemned residential properties); Dirk Johnson, A Bitter Battle Fought on Two
Housing Fronts, New York Times, Oct. 28, 1987, available at
http://www.nytimes.com (St. Louis landlord sentenced to jail for renting apartments
in condemned buildings). Unknowing tenants do not lose their Fourth Amendments
rights merely because they rent from unscrupulous landlords.
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right was clearly established, I would affirm the district court’s denial of qualified
immunity. See New York v. Burger, 482 U.S. 691, 724 (1987) (Brennan, J.,
dissenting) (“In the law of administrative searches, one principle emerges with
unusual clarity and unanimous acceptance: the government may not use an
administrative inspection scheme to search for criminal violations.”) (collecting
cases). Therefore, as to the plaintiffs' Fourth Amendment claims arising from the
illegal search of 3309 Illinois, I respectfully dissent.

II. Under Circuit Precedent, the District Court Incorrectly Determined the Police
Officers Were Not Entitled to Qualified Immunity for Selectively Prosecuting
the 3309 Illinois Plaintiffs in Order to Suppress Their Protest Speech; However,
Such Precedent Warrants Reconsideration.

Because the plaintiffs’ First Amendment claim is based on an allegation the
police selectively enforced St. Louis’s building code in an attempt to prevent them
from engaging in the impending protest, their claim should not be defeated merely
because there was probable cause for their arrest for occupying a condemned building.
Rather, the Court should consider whether the plaintiffs were “singled out for
prosecution while others similarly situated have not been prosecuted for conduct
similar to that for which [they were] prosecuted [and] that the government’s
discriminatory selection of [them] for prosecution was based upon . . . [their
anticipated] exercise of [their] first amendment right to free speech.” Osborne v.
Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007) (quoting United States v. Catlett, 584
F.2d 864, 866 (8th Cir. 1978)).

There is little question the plaintiffs were singled out because of their
anticipated participation in the upcoming protest. Indeed, the express purpose of the
“Building Code Enforcement Plan” was to target expected protesters. In addition, the
police department typically does not initiate criminal prosecutions against persons for
occupying condemned buildings. During his many years of service, Inspector
MacEnulty was not contacted once by the police department about a condemned

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building. Thus, there is a genuine issue of material fact whether the plaintiffs were
selectively prosecuted.

The majority nonetheless condones the selective enforcement of the building
code because the police officers’ actions were allegedly aimed at deterring
unprotected violent protest activity. The Supreme Court has made very clear,
however, the police may not interfere with a protest merely because they fear possible
violence. Cox v. Louisiana, 379 U.S. 536, 550 (1965); Edwards v. South Carolina,
372 U.S. 229, 237-38 (1963). Rather, the police may only interfere if there is a “clear
and present danger of riot, disorder, interference with traffic upon the public streets,
or other immediate threat to public safety, peace, or order . . . .” Cantwell v.
Connecticut, 310 U.S. 296, 308 (1940). Besides general allegations of protestor
violence at prior World Agricultural Forums, the police officers did not have any
evidence the plaintiffs were planning to engage in unprotected violent protest activity.
While I am mindful the First Amendment does not insulate individuals from criminal
sanction, when it comes to core First Amendment speech, such as political protest, the
government may not use a hatchet where a scalpel will suffice. NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 908 (1982).

Nonetheless, because I am bound by Circuit precedent, see Drake v. Scott, 812
F.2d 395, 400 (8th Cir.1987), I reluctantly concur in the judgment with respect to the
plaintiffs' First Amendment claim. In Williams v. City of Carl Junction, 480 F.3d 871
(8th Cir. 2007), this Court held, for an ordinary retaliation claim, i.e. "where the
government agent allegedly harboring the animus is also the individual allegedly
taking the adverse action," Hartman v. Moore, 547 U.S. 250, 259 (2006), a plaintiff
selectively prosecuted for exercising his First Amendment rights must demonstrate a
lack of probable cause for the underlying criminal charge. Williams, 480 F.3d at
876.

In so holding, the Court erroneously extended Hartman, which solely addressed
retaliatory-prosecution claims, i.e., where the government agent allegedly harboring
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the animus "induced the prosecutor to bring charges that would not have been initiated
without his urging." 547 U.S. at 262. In Hartman, the Supreme Court held a plaintiff
in a retaliatory-prosecution action must plead and show the absence of probable cause
for the underlying criminal charge. Because in a retaliatory-prosecution claim there
is an intervening decision by a prosecutor to pursue criminal charges, which is
accorded a presumption of regularity, the Court found a probable-cause requirement
was necessary "to bridge the gap between the nonprosecuting government agent's
motive and the prosecutor's action, and to address the presumption of prosecutorial
regularity." Id. at 259, 263. As the Court took great care to explain, it was the
"differences between retaliatory prosecution claims and [ordinary] retaliation claims
[that] justified and necessitated the additional requirement in retaliatory prosecution
claims." Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006)
(emphasis added); see also Hartman, 547 U.S. at 259 ("It is . . . the need to prove a
chain of causation from animus to injury, with details specific to
retaliatory-prosecution cases, that provides the strongest justification for the
no-probable-cause requirement espoused by the inspectors.") (emphasis added); id.
at 259-63 (detailing the differences between retaliatory-prosecution and ordinary
retaliation claims). Because the Supreme Court expressly distinguished
retaliatory-prosecution actions from ordinary retaliation actions, and Hartman's
rationale for requiring no probable cause is absent in ordinary retaliation actions, the
Williams court incorrectly concluded Hartman's no-probable-cause requirement
should also apply to ordinary retaliation actions. See CarePartners, LLC v. Lashway,
--- F.3d ---, 2008 WL 4352597, at *6 n.7 (9th Cir. Sept. 25, 2008) (refusing to extend
Hartman's probable-cause requirement to ordinary retaliation claims); Skoog, 469
F.3d at 1235 (same).

Nonetheless, the instant case is controlled by Williams, and the plaintiffs thus
are required to prove an absence of probable cause to maintain their First Amendment
claim. Because the police rather than a prosecutor initiated criminal proceedings
against the plaintiffs, the instant case also presents an ordinary retaliation claim.
Although the plaintiffs' claim is technically a prior restraint, rather than post-speech
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retaliation, action, see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-68 (1963)
(recognizing a criminal prosecution may constitute an impermissible prior restraint on
speech), this distinction is without a difference under these circumstances. Therefore,
under Williams, the plaintiffs' First Amendment claim must fail because there was
probable cause for their arrest.

I write separately to express my strongly held view that the existence of
probable cause should not defeat a claim for selective enforcement in the First
Amendment context where there is no intervening action by a prosecutor. Although
this is not the first time the “punitive machinery of government” has been employed
to suppress protest speech, Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.
2003), by refusing to hold the police officers accountable for their clearly unlawful
conduct, our precedent ensures it will not be the last.
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