United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1072

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Frank L. Snider, III

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Cape Girardeau

lllllllllllllllllllll Defendant

Matthew Peters, In his individual capacity and his official capacity as a police

officer of the City of Cape Girardeau

lllllllllllllllllllll Defendant - Appellant

H. Morley Swingle

lllllllllllllllllllll Defendant

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No. 13-1108

___________________________

Frank L. Snider, III

lllllllllllllllllllll Plaintiff - Appellee

v.
City of Cape Girardeau; Matthew Peters, In his individual capacity and his official

capacity as a police officer of the City of Cape Girardeau; H. Morley Swingle

lllllllllllllllllllll Defendants

State of Missouri

lllllllllllllllllllllIntervenor Defendant - Appellant

___________________________

No. 13-1410

___________________________

Frank L. Snider, III

lllllllllllllllllllll Plaintiff - Appellant

v.

City of Cape Girardeau

lllllllllllllllllllll Defendant - Appellee

Matthew Peters, In his individual capacity and his official capacity as a police

officer of the City of Cape Girardeau; H. Morley Swingle

lllllllllllllllllllll Defendants

___________________________

No. 13-1618

___________________________

Frank L. Snider, III

lllllllllllllllllllll Plaintiff - Appellee

v.

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City of Cape Girardeau

lllllllllllllllllllll Defendant

Matthew Peters, In his individual capacity and his official capacity as a police

officer of the City of Cape Girardeau

lllllllllllllllllllll Defendant - Appellant

H. Morley Swingle

lllllllllllllllllllll Defendant

___________________________

No. 13-1619

___________________________

Frank L. Snider, III

lllllllllllllllllllll Plaintiff - Appellee

v.

City of Cape Girardeau; Matthew Peters, In his individual capacity and his official

capacity as a police officer of the City of Cape Girardeau; H. Morley Swingle

lllllllllllllllllllll Defendants

State of Missouri

lllllllllllllllllllllIntervenor below - Appellant

____________

 Appeals from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

____________

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 Submitted: January 16, 2014

 Filed: May 30, 2014 (Corrected: May 30, 2014)

____________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

____________

BYE, Circuit Judge.

Officer Matthew Peters of the Cape Girardeau Police Department appeals the

district court's1

 denial of his motion for summary judgment on the basis of qualified

immunity and award of attorneys' fees. The State of Missouri, which intervened in

this action, appeals the district court's order declaring its flag desecration statute

facially unconstitutional and the award of attorneys' fees. Frank Snider appeals the

district court's order denying his motion for summary judgment against the City of

Cape Girardeau, Missouri. We affirm.

I

On October 20, 2009, while standing in his front yard, Snider attempted to set

fire to an American flag. When he was unable to ignite the flag, he shredded it with

a knife and threw it into the street. A neighbor who had observed the incident

reported it to the police.

Officer Peters responded to investigate. Upon arriving at the scene, he saw the

flag in the road and Snider standing in his yard. Officer Peters asked Snider why he

had destroyed the flag. Snider replied "he hated the United States because it was the

1

The Honorable Carol E. Jackson, United States District Judge for the Eastern

District of Missouri.

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country's fault that he could not find a job." Officer Peters issued Snider a citation for

violating the city's littering ordinance, which was eventually voided.

Upon Officer Peters' returning to the station, another officer informed him of

a Missouri statute prohibiting flag desecration. After reviewing the statute, Mo. Rev.

Stat. § 578.095, Officer Peters drafted a probable cause statement indicating he

believed Snider had committed the criminal offense of desecration of the American

flag.2

 He submitted the probable cause statement to Cape Girardeau County

prosecuting attorney H. Morley Swingle. After reviewing the probable cause

statement, Swingle submitted a warrant application to the Honorable Gary A. Kamp,

Circuit Judge of Cape Girardeau County, who issued the warrant for Snider's arrest. 

On October 23, 2009, Officer Peters executed the warrant and arrested Snider for

violating § 578.095. Snider was held in jail for approximately eight hours.

Both Officer Peters and prosecuting attorney Swingle stated they were unaware

of the United States Supreme Court's decisions in Texas v. Johnson, 491 U.S. 397

(1989), and United States v. Eichman, 496 U.S. 310 (1990), which struck down

statutes criminalizing flag desecration as unconstitutional. After Snider's arrest, a

local news reporter called Swingle and asked him if he was aware of Texas v.

Johnson. Upon reading the case, Swingle dismissed the charge against Snider, and

Snider was released from jail.

On July 6, 2010, Snider filed this 42 U.S.C. § 1983 action against Cape

Girardeau and Officer Peters. Snider later amended his complaint to add Swingle as

a defendant. On April 21, 2011, Missouri intervened in the action. Snider sought

nominal and punitive damages, injunctive relief, and a determination that the state flag

2

At the time of Snider's arrest, Cape Girardeau had an ordinance prohibiting flag

desecration, Ordinance § 17-5, the text of which was identical to Mo. Rev. Stat.

§ 578.095. However, Snider was never charged with a violation Ordinance § 17-5,

and it has since been repealed by the Cape Girardeau city council.

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desecration statute, § 578.095, and Cape Girardeau's substantively identical ordinance,

§ 17-5, violated the First Amendment. Snider claimed his arrest violated his

constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, and

Cape Girardeau developed and maintained policies, customs, and practices exhibiting

deliberate indifference to the constitutional rights of Cape Girardeau citizens,

including failing to adequately train its police officers.

All parties filed motions for summary judgment. The district court granted

Snider's motion for summary judgment against Missouri, granting a permanent

injunction against the enforcement of § 578.095. The district court denied Missouri's

motion for summary judgment. The district court denied Snider's motion for summary

judgment against Cape Girardeau and Swingle, and granted summary judgment in

favor of Cape Girardeau and declared the claim against Swingle moot.

The district court also denied Officer Peters' motion for summary judgment on

the basis of qualified immunity, concluding Officer Peters had violated Snider's

constitutional rights under the First and Fourth Amendments. A trial was held to

determine Snider's damages, after which the district court entered a judgment in favor

of Snider and against Officer Peters in the amount of $7,000 in actual damages on

December 14, 2012. The court denied punitive damages and entered judgment in

favor of the City of Cape Girardeau and against Snider.

Finally, the district court awarded Snider's attorneys $61,890 in attorneys' fees

plus $266.68 in costs. The award was against Officer Peters and Missouri, jointly and

severally. The district court declined to apportion the attorneys' fees or lower the

attorneys' hourly rates.

Officer Peters now appeals the denial of qualified immunity and the attorneys'

fees award. Missouri appeals the determination that § 578.095 was facially

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unconstitutional and the attorneys' fees award. Snider appeals the denial of his motion

for summary judgment against Cape Girardeau.

II

We first consider whether the district court erred in denying Officer Peters'

motion for summary judgment on the basis of qualified immunity. For an appeal of

a district court's denial of qualified immunity, we "accept the district court's findings

of fact taken in the light most favorable to [Snider]." Stoner v. Watlingten, 735 F.3d

799, 801 n.2 (8th Cir. 2013).

Qualified immunity shields government officials from liability and the burdens

of litigation in a § 1983 action unless the official's conduct violates a clearly

established constitutional or statutory right of which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Saterdalen v. Spencer, 725

F.3d 838, 841 (8th Cir. 2013). To overcome a defendant's claim of qualified

immunity, the burden falls on the plaintiff to show: "(1) the facts, viewed in the light

most favorable to the plaintiff[], demonstrate the deprivation of a constitutional right;

and (2) the right was clearly established at the time of the deprivation." Baribeau v.

City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010).

Officer Peters concedes he deprived Snider of his First and Fourth Amendment

rights. Thus, the question remains whether those rights were clearly established at the

time of Snider's arrest. This inquiry "turns on the objective legal reasonableness of

[Officer Peters'] action, assessed in light of the legal rules that were clearly established

at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal

quotations and citations omitted). A constitutional or statutory right is clearly

established if "[t]he contours of the right [were] sufficiently clear that a reasonable

official would understand that what he is doing violates that right." Id. at 640. To

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overcome qualified immunity, Snider must prove "in the light of pre-existing law the

unlawfulness [of Officer Peters' conduct was] apparent." Id.

The United States Supreme Court has a long history of protecting expressive

conduct involving the American flag on First Amendment grounds. In Spence v.

Washington, 418 U.S. 405 (1974), the Supreme Court overturned Spence's conviction

for improper use of a flag for displaying it with a peace sign taped to it as a means of

expressing his opinion that America stood for peace.

In Texas v. Johnson, 491 U.S. 397 (1989), the Court invalidated a Texas flag

desecration statute as unconstitutionally applied to Johnson, who had burned an

American flag while participating in a protest outside of a national political

convention. In doing so, the Court highlighted its previous decisions recognizing the

"communicative nature of conduct relating to flags." Id. at 404. "Pregnant with

expressive content, the flag as readily signifies this Nation as does the combination

of letters found in 'America.'" Id. at 405.

One year later, the Supreme Court followed up the Texas v. Johnson decision

with United States v. Eichman, 496 U.S. 310 (1990), which invalidated the federal

Flag Protection Act as applied to defendants who were prosecuted for setting fire to

American flags on the steps of the United States Capitol. Id. at 312. The Court

reasoned "[p]unishing desecration of the flag dilutes the very freedom that makes this

emblem so revered, and worth revering." Id. at 319.

We agree with the district court. Beginning in 1974, with Spence, and

culminating in 1989 and 1990, with Texas v. Johnson and Eichman, the Supreme

Court clearly established the First Amendment prohibits the prosecution of an

individual for using the American flag to express an opinion. This right had been

clearly established for twenty years when Officer Peters arrested Snider on October

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24, 2009, and, thus, a reasonably competent officer would have known Snider's

expressive conduct was constitutionally protected.

In response, Officer Peters argues his conduct should be insulated because he

acted pursuant to an arrest warrant issued by a local magistrate judge, and he cites the

Supreme Court's recent decision in Messerschmidt v. Millender, 132 S.Ct. 1235

(2012). In Messerschmidt, the Court granted qualified immunity to officers who had

executed a search warrant unsupported by probable cause, holding that "the fact that

a neutral magistrate has issued a warrant is the clearest indication that the officers

acted in an objectively reasonable manner[.]" Id. at 1245. However, the Court noted

"the fact that a neutral magistrate has issued a warrant authorizing the allegedly

unconstitutional search or seizure does not end the inquiry into objective

reasonableness." Id.

The Messerschmidt court also affirmed the survival of the standard set forth in

Malley v. Briggs, 475 U.S. 335 (1986), which held there would be no grant of

qualified immunity if "it is obvious that no reasonably competent officer would have

concluded that a warrant should issue." Id. at 341. We have also noted the survival

of the Malley standard post-Messerschmidt. See Saterdalen, 725 F.3d at 841; Small

v. McCrystal, 708 F.3d 997, 1006 (8th Cir. 2013). This outcome is a sensible one as

both the Supreme Court and this Court have observed the fact that a warrant has

issued should not be dispositive because "it is possible that a magistrate, working

under docket pressures, will fail to perform as a magistrate should." Malley, 475 U.S.

at 345-46.

Officer Peters' actions are not insulated by the arrest warrant. This country has

a long history of protecting expressive conduct on First Amendment grounds,

especially when the American flag is the mode of expression. A reasonably

competent officer in Officer Peters' position would have concluded no arrest warrant

should issue for the expressive conduct engaged in by Snider. Although it is

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unfortunate and fairly inexplicable that the error was not corrected by the county

prosecutor or the magistrate judge, no warrant should have been sought in the first

place. Thus, the district court correctly concluded Officer Peters was not entitled to

qualified immunity.

III

We next consider whether the district court erred in holding Missouri's flag

desecration statute to be facially unconstitutional.3

 The First Amendment prevents the

government from proscribing speech and expressive conduct because of the

disapproval of the ideas expressed. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,

382 (1992). Content-based regulations, such as Mo. Rev. Stat. § 578.095, are

"presumptively invalid." Id. The government has the burden of rebutting the

presumption. United States v. Stevens, 559 U.S. 460, 468 (2010). Conduct directed

toward the United States flag has been recognized as "sufficiently imbued with

elements of communication" to implicate the First Amendment. Spence, 418 U.S. at

409-11.

Imprecise laws can be attacked on their face as either overbroad or vague. The

overbreadth doctrine permits the facial invalidation of laws which inhibit the exercise

of First Amendment rights if the impermissible applications of the law are substantial

when judged in relation to the statute's plainly legitimate sweep. Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973). Even if an enactment does not reach a

substantial amount of constitutionally protected conduct, it may be impermissibly

vague if it fails to establish standards for the police and public that are sufficient to

3

The parties agree Missouri's flag desecration statute, Mo. Rev. Stat. § 578.095,

is unconstitutional as applied to Snider. Thus, the question on appeal is whether the

statute is also facially unconstitutional.

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guard against the arbitrary deprivation of liberty interests. City of Chicago v. Morales,

527 U.S. 41, 53 (1999).

Only substantial overbreadth supports facial invalidation, as there are

significant social costs in blocking a law's application to constitutionally protected

conduct. Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). Yet, the fact one can

conceive of an impermissible application of a statute is not sufficient to render it

susceptible to an overbreadth challenge. Members of City Council of L.A. v.

Taxpayers for Vincent, 466 U.S. 789, 800 (1984). "[T]here must be a realistic danger

that the statute itself will significantly compromise recognized First Amendment

protections of parties not before the Court for it to be facially challenged on

overbreadth grounds." Id. at 801.

Missouri's flag desecration statute provides:

1. Any person who purposefully and publicly mutilates, defaces,

defiles, tramples upon or otherwise desecrates the national flag of

the United States or the flag of the state of Missouri is guilty of

the crime of flag desecration. 

Mo. Rev. Stat. § 578.095(1).

"The first step in overbreadth analysis is to construe the challenged statute; it

is impossible to determine whether a statute reaches too far without first knowing

what the statute covers." United States v. Williams, 553 U.S. 285, 293 (2008). Here,

the Missouri statute requires the actor to "purposefully and publicly" desecrate the

American or Missouri flag to face criminal liability. These requirements ensure the

unintended desecration of a flag or the private desecration of a flag will not be

punished and, therefore, demonstrate that expressive conduct is the statute's target. 

Public desecration of a flag is more likely to involve expressive conduct than a private

desecration. Individuals wishing to convey a message are more likely to do so

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publicly, as private attempts will likely fail to express a message. Similarly, the

accidental and unknowing desecration of a flag undoubtedly will not express any

message, and there would be no criminal liability under the statute for such an act. 

The presence of the intent and public elements demonstrates Missouri intended to

regulate expressive conduct.

After construing the statute, the second step is to examine whether the statute

criminalizes a "substantial amount" of expressive activity. Williams, 553 U.S. at 292. 

The showing that a law punishes a "substantial" amount of protected free speech,

"judged in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973), suffices to invalidate all enforcement of that law, "until and

unless a limiting construction or partial invalidation so narrows it as to remove the

seeming threat or deterrence to constitutionally protected expression," id. at 613. See

also Virginia v. Black, 538 U.S. 343, 367 (2003).

This regulation criminalizes a substantial amount of expressive activity. It is

hard to imagine any scenario in which the elements of the statute would be met and

yet the actions would constitute non-expressive conduct. Missouri argues § 578.095

is directed only at non-expressive conduct and offers the unlikely hypothetical of a

tired person dragging a flag through the mud, aware his actions would likely offend

others, but not intending to communicate anything. Yet, Missouri fails to point to an

actual instance of the enforcement or threatened enforcement of § 578.095 with

respect to non-expressive conduct. By contrast, the district court found at least three

instances in which § 578.095 had been applied to protected speech. The district court

also noted that § 578.095 may have had a chilling effect on other expressive conduct. 

The fact demonstrates a "substantial amount" of expressive conduct is prohibited by

§ 578.095.

Finally, we must ask whether the statute is "readily susceptible" to a limiting

construction which would render it constitutional. Virginia v. Am. Booksellers Ass'n,

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484 U.S. 383, 397 (1988). Missouri proposes the statute be limited to only nonexpressive conduct. Missouri points to a Pennsylvania Supreme Court decision

declining to find a state flag desecration statute facially unconstitutional. 

Commonwealth of Pa. v. Bricker, 666 A.2d 257 (Pa. 1995). However, Pennsylvania's

statute was distinguishable from § 578.095 in that it "explicitly exempt[ed] from

punishment any desecration done as part of 'any patriotic or political demonstration

or decorations.'" Id. at 260 (quoting 18 Pa. Const. Stat. § 2102(b)(4)). There exists

no plausible way for the court to read such a limitation into Missouri's statute. The

statute is clear: 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. No

limiting construction would be consistent with any plausible understanding of the

legislature's intent. Striking any word would only make the statute more broad, not

less. And no term can logically be construed in a way to render it constitutional. 

Unlike Pennsylvania's statute, nothing in Missouri's statute expressly exempts

expressive conduct.

Thus, we conclude Mo. Rev. Stat. § 578.095 is not susceptible to an appropriate

narrowing construction, and, therefore, the district court did not err in holding the

statute to be facially unconstitutional. Having made this determination, it is

unnecessary to consider whether the statute is also unconstitutionally vague.

IV

We are next asked to review the district court's award of attorneys' fees against

Officer Peters and the State of Missouri. We review de novo the legal issues related

to an award of attorneys' fees, while the actual award is reviewed for an abuse of

discretion. See Pendleton v. QuikTrip Corp., 567 F.3d 988, 994 (8th Cir. 2009);

Williams v. City of Carl Junction, Mo., 523 F.3d 841, 843 (8th Cir. 2008).

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A

Officer Peters and Missouri first contend the district court abused its discretion

when it failed to apportion the attorneys' fees between the two and instead held them

both jointly and severally liable. In a § 1983 action, "the court, in its discretion, may

allow the prevailing party, other than the United States, a reasonable attorney's fee as

part of the costs." 42 U.S.C. § 1988. The decision to award attorneys' fees under

§ 1988 "rests with the broad discretion of the district court and will not be reversed

absent an abuse of discretion." Harmon v. City of Kansas City, Mo., 197 F.3d 321,

329 (8th Cir. 1999).

Although the district court had discretion to apportion attorneys' fees between

Officer Peters and Missouri, it was not obligated to do so. Here, the district court

considered the arguments for apportioning the fees but decided to apply the general

rule that non-prevailing defendants are to be held jointly and severally liable for

attorneys' fees and costs. Due to the facts of this case and the well-stated reasons in

its order, we cannot say the district court abused its discretion in so ruling.

B

Officer Peters and Missouri next contend the district court abused its discretion

in failing to reduce Snider's attorneys' hourly rates when calculating the award. The

district court determined the reasonable attorneys' fees included a St. Louis locality

standard rate, not a Cape Girardeau locality rate.

The starting point in determining an attorneys' fee award under § 1988 is the

lodestar, which is calculated by multiplying the number of hours reasonably expended

by reasonable hourly rates. Farmer's Co-op Co. v. Senske & Son Transfer Co., 572

F.3d 492, 500 (8th Cir. 2009). A reasonable hourly rate is usually the ordinary rate

for similar work in the community where the case has been litigated. Little Rock Sch.

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Dist. v. Arkansas, 674 F.3d 990, 995 (8th Cir. 2012). In a case where the plaintiff

does not use local counsel, the district court is not limited to the local hourly rate, if

the plaintiff has shown that, in spite of his diligent, good faith efforts, he was unable

to find local counsel able and willing to take the case. Emery v. Hunt, 272 F.3d 1042,

1048 (8th Cir. 2001).

Here, the district court noted "[t]o limit rates to those prevailing in a local

community might have the effect of limiting civil rights enforcement to those

communities where the rates are sufficient to attract experienced counsel." Casey v.

City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993). Snider produced evidence he

could not secure competent counsel in the Cape Girardeau community. Further,

Snider's attorneys submitted affidavits stating their hourly rates were within or below

the market rates for attorneys with comparable experience. The court noted the

attorneys had expertise in First Amendment litigation, which provided additional

support for higher hourly rates. Thus, we conclude the district court did not abuse its

discretion in awarding attorneys' fees based on the rate for the St. Louis legal market,

instead of Cape Girardeau.

V

Finally, we consider whether the district court erred in granting summary

judgment in favor of Cape Girardeau. Snider argues the district court erred in holding

that Cape Girardeau did not have a policy of criminalizing expressive conduct and did

not inadequately train and supervise its officers. A municipality can be liable under

§ 1983 only if a municipal policy or custom caused a plaintiff to be deprived of a

federal right or if the municipality failed to adequately train its employees. City of

Canton v. Harris, 489 U.S. 378, 385 (1989); Monell v. N.Y. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978).

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Snider first attempts to establish Monell liability based upon the flag

desecration ordinance enacted by Cape Girardeau, which is identical to Mo. Rev. Stat.

§ 578.095. However, as the district court observed, Snider was not arrested for a

violation of the Cape Girardeau ordinance, but for a violation of § 578.095. Thus, he

cannot establish a causal connection between his arrest and the city ordinance.

Snider also claims Cape Girardeau failed to properly train and supervise Officer

Peters. The inadequacy of police training may serve as the basis for § 1983 liability

only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact. City of Canton, 489 U.S. at 388. 

To establish a claim for "custom" liability, Snider must demonstrate: (1) the existence

of a continuing, widespread, persistent pattern of unconstitutional misconduct by the

governmental entity's employees; (2) deliberate indifference to or tacit authorization

of such conduct by the governmental entity's policymaking officials after notice to the

officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the

governmental entity's custom, i.e., that the custom was a moving force behind the

constitutional violation. Johnson v. Douglas Cnty. Med. Dep't, 725 F.3d 825, 828 (8th

Cir. 2013).

The district court properly rejected Snider's argument regarding Cape

Girardeau's failure to train Officer Peters. As the district court observed, Cape

Girardeau was not responsible for training Officer Peters. Instead, state law requires

that all officers be trained by the Missouri Department of Public Safety. Further,

Officer Peters participated in the required and state-approved 600-hour initial training

program at Southeast Missouri State University and received continuing education

training from approved providers. Cape Girardeau was not responsible for the

training program's curriculum. Thus, we cannot say the district court erred in holding

that Cape Girardeau was not deliberately indifferent to Snider's constitutional rights.

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VI

Based on the foregoing, we affirm the judgment of the district court and the

award of attorneys' fees.

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