United States Court of Appeals

For the Eighth Circuit

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No. 16-3650

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Ronald Calzone,

lllllllllllllllllllll Plaintiff - Appellant,

v.

Josh Hawley, in his official capacity as Attorney General for the State of Missouri;

Sandra K. Karsten, in her official capacity as Superintendent of the Missouri State

Highway Patrol; Eric Greitens, in his official capacity as Governor of the State of

Missouri,1

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: April 6, 2017

 Filed: August 7, 2017

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Before COLLOTON and BENTON, Circuit Judges, and GERRARD, District 2

Judge.

AttorneyGeneralHawley, Superintendent Karsten, and Governor Greitens are 1

automatically substituted for their predecessors under Federal Rule of Appellate

Procedure 43(c)(2).

The Honorable John M. Gerrard, United States District Judge for the District 2

of Nebraska, sitting by designation. 
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COLLOTON, Circuit Judge.

Ronald Calzone sued three state officials to challenge provisions of Missouri

law that authorize roving stops of certain vehicles for inspection without suspicion. 

The district court held that the statutes were not unconstitutional on their face. The

court also ruled that Calzone’s as-applied challenge was not adequately pleaded,

because the defendants could not be sued in their official capacities under 42 U.S.C.

§ 1983. We affirm the court’s conclusion that the statutes are not facially

unconstitutional, but we conclude that the as-applied challenge against the

superintendent should have been considered on the merits, so we remand for further

proceedings.

I.

In June 2013, Missouri state highway patrol corporal J.L. Keathley stopped

Calzone while he was driving his dump truck on United States Highway 63 in Phelps

County, Missouri. Keathley asked Calzone if he could inspect the truck, but Calzone

refused. Keathley then explained that Mo. Rev. Stat. § 304.230 authorized him to

stop commercial vehicles and inspect them whether or not he had probable cause. 

Keathley warned Calzone that if he did not submit to an inspection, then Keathley

would issue him a citation. Calzone still refused, so Keathley issued him a citation

for failure to submit to a commercial vehicle inspection. The Phelps County

prosecutor later abandoned the action against Calzone.

Calzone then sued the governor of Missouri, the Missouri attorney general, and

the superintendent of the Missouri state highway patrol under 42 U.S.C. § 1983. He

sought a declaratory judgment that Mo. Rev. Stat. § 304.230.1, .2, and .7 are

unconstitutional on their face and as applied to him. He asked for a permanent

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injunction against the enforcement of these provisions, for one dollar in nominal

damages, and for costs and attorney’s fees.

The district court granted summary judgment for the officials on Calzone’s

facial challenge and granted judgment on the pleadings for the officials on the asapplied challenge. The court concluded that the challenged provisions were not

facially unconstitutional, because they could be applied constitutionally to

participants in the closely regulated commercial trucking industry. The court

concluded that Calzone’s as-applied challenge failed because he could not sue the

governor, the attorney general, or the superintendent under § 1983. The court

reasoned thatstate officials acting in their official capacities are not “persons” subject

to suit under the statute. We review the district court’s rulings de novo.

II.

A threshold question is whether there is jurisdiction over Calzone’s action

against each of the defendants—the governor, the attorney general, and the

superintendent. Calzone adequately alleges that he was injured by a seizure and is

likely to be injured in the future. But Article III standing to sue each defendant also

requires a showing that each defendant caused his injury and that an order of the court

against each defendant could redress the injury. Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-61 (1992). 

Because the defendants are state officials, Calzone also must show that the

action is not barred by state sovereign immunity arising from the Eleventh

Amendment. A suit for injunctive or declaratory relief avoids this immunity if the

official has some connection to the enforcement of the challenged laws. See Ex parte

Young, 209 U.S. 123, 157 (1908). In a case like this one, the two inquiries are

similar: “[W]hen a plaintiff brings a pre-enforcement challenge to the

constitutionality of a particular statutory provision, the causation element ofstanding

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requires the named defendants to possess authority to enforce the complained-of

provision.” Dig. Recognition Network v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir.

2015) (alteration in original) (quotation omitted).

Calzone plainly has standing to sue the superintendent. For purposes of the

Eleventh Amendment and Ex parte Young, a state official’s requisite connection with

the enforcement of a statute may arise out of “the general law” or be “specially

created by the act itself.” 209 U.S. at 157. Section 304.230.1 specifically authorizes

the superintendent to “promulgate rules and regulations relating to the

implementation of the provisions” of § 304.230, so she issubject to suit on claims for

injunctive and declaratory relief. Her directionsthat patrol officersshould implement

the statute by conducting vehicle inspections cause Calzone’s injury, and an order

directing her to cease and desist would redress the injury.

Calzone’s claims against the governor, on the other hand, do not present a case

or controversy. No provision in Chapter 304 or the statutes defining his executive

authority specifically authorizes the governor to enforce the vehicle inspection

statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri Constitution confers upon

the governor the duty to “take care that the laws are distributed and faithfully

executed,” Mo. Const. art. IV, § 2, but such a general executive responsibility is an

insufficient connection to the enforcement of a statute to avoid the Eleventh

Amendment. See Fitts v. McGhee, 172 U.S. 516, 530 (1899). For similar reasons,

the governor has not caused any injury to Calzone, and there is no Article III case or

controversy between Calzone and the governor. 

The third defendant, the attorney general, has certain law enforcement

authority, but his relationship to vehicle inspections is also tangential. The attorney

general is authorized to aid prosecutors in the discharge of their duties when so

directed by the governor and to sign indictments when so directed by a trial court. 

Mo. Rev. Stat. § 27.030. Calzone has pointed to no authority, however, suggesting

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that the attorney general has any role in causing vehicle inspections by the highway

patrol. Calzone seeks to enjoin state officials from seizing him and his vehicle for

inspection pursuant to Chapter 304 of the Revised Statutes. If the superintendent is

enjoined from implementing rules that cause patrol officers to conduct the disputed

seizures, then the seizures will end, and Calzone’s injury will be redressed. Calzone

does not seek to enjoin a statute that subjects him to imminent prosecution by the

attorney general, see Ex parte Young, 209 U.S. at 155-56, but rather to prevent

imminent inspections by officers of the highway patrol at the superintendent’s

direction. There is thus no case or controversy between Calzone and the attorney

general. 

For these reasons, Calzone has standing to sue the superintendent, and his

claims against her for injunctive and declaratory relief are not barred by the Eleventh

Amendment. The claims against the governor and the attorney general were properly

dismissed, because there is no case or controversy between Calzone and those

officials.

III.

On the merits, Calzone argues that Mo. Rev. Stat. § 304.230.1, .2, and .7 are

facially unconstitutional, because they authorize roving stops of vehicles even if the

stops are not supported by probable cause. To establish that these statutes are

unconstitutional on their face, Calzone must show that there is no set of

circumstances under which the laws would be valid. United States v. Salerno, 481

U.S. 739, 745 (1987). 

The challenged subsections of Mo. Rev. Stat. § 304.230 authorize certain law

enforcement officers to stop and inspect commercial motor vehicles for certain

delineated purposes. Subsection 304.230.1 provides that members of the Missouri

state highway patrol “shall have the authority, with or without probable cause to

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believe that the size or weight is in excess of that permitted by sections 304.170 to

304.230, to require the driver . . . to stop, drive, or otherwise move to a location to

determine compliance with [those] sections.” Subsection 304.230.2 authorizes “any

highway patrol officer . . . to stop any [commercial motor vehicle] upon the public

highway for the purpose of determining whether such vehicle is loaded in excess of

the provisions of sections 304.170 to 304.230.” Subsection 304.230.7 gives the

superintendent of the Missouri state highway patrol the power to “appoint members

of the patrol who are certified under the commercial vehicle safety alliance with the

power” to stop operators in order “to conduct commercial motor vehicle and driver

inspections . . . to determine compliance with commercial vehicle laws, rules, and

regulations.” As relevant, Missouri defines a commercial motor vehicle as “a motor

vehicle designed or regularly used for carrying freight and merchandise.” Mo. Rev.

Stat. § 301.010(7). 

In New York v. Burger, 482 U.S. 691 (1987), the Supreme Court held that a

warrantless search of property in certain “closely regulated industries” is

constitutional if three criteria are met: (1) the regulatory scheme advances a

substantial government interest; (2) warrantless inspections are necessary to further

the regulatory scheme; and (3) the rules governing the inspections must be a

constitutionally adequate substitute for a warrant, i.e. the rules must provide notice

that property may be searched for a specific purpose and must limit the discretion of

the inspecting officers. Id. at 702-03. 

This court has held that commercial trucking is a closely regulated industry

within the meaning of Burger. United States v. Ruiz, 569 F.3d 355, 356-57 (8th Cir.

2009); United States v. Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004). Ruiz

applied Burger to uphold an Arkansas statute that authorized warrantlessinspections

of commercial trucks. The court determined that “warrantless inspections of

commercial trucks advance a substantial governmental interest and are necessary” to

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further the regulatory scheme. 569 F.3d at 357. The court also concluded that the

statute provides a permissible substitute for a warrant. Id. 

A similar analysis shows that the Missouri statutes are constitutional on their

face. Missouri’s definition of “commercialmotor vehicle” covers commercial trucks. 

Missouri has a substantial interest in ensuring the safety of the motorists on its

highways and in minimizing damage to the highways from overweight vehicles. 

Ruiz, 569 F.3d at 357 (citing cases); State v. Rodriguez, 877 S.W.2d 106, 109 (Mo.

1994). Given the transitory nature of commercial trucks, United States v. Fort, 248

F.3d 475, 481 (5th Cir. 2001), and the difficulty of detecting violations of the

regulatory scheme by routine observation, effective enforcement would be nearly

impossible without impromptu, warrantless searches. United States v. Maldonado,

356 F.3d 130, 136 (1st Cir. 2004). The challenged subsections are also a permissible

substitute for a warrant. They provide notice to commercial truck drivers of the

possibility of roadside inspection by a designated law enforcement officer, and they

limit the scope of the officer’s inspections to an examination solely for regulatory

compliance. See Ruiz, 569 F.3d at 357. We therefore conclude that Mo. Rev. Stat.

§ 304.230.1, .2, and .7 can be applied constitutionally to participants in the

commercial trucking industry under Burger, and the provisions are not

unconstitutional on their face.

Calzone also contends that the challenged subsections are unconstitutional as

applied to him, because he is not a member of the commercial trucking industry. The

district court concluded that Calzone could not bring an as-applied claim against the

superintendent, because this official is not a “person” under § 1983. That conclusion

is correct as to Calzone’s claim for damages. A suit for damages against a state

official in his official capacity is a suit against the State, and the State is not a person

under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). But

Calzone can sue the superintendent in her official capacity for declaratory and

injunctive relief, because those claims are treated as an action against the official

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personally and not against the State. See id. at 71 n.10; Ex parte Young, 209 U.S. at

159-60. Therefore, it was error for the court to dismiss Calzone’s as-applied claims

against the superintendent for declaratory and injunctive relief based on the meaning

of “person” under § 1983. 

The merits of Calzone’s as-applied challenge were not well developed in the

briefs on appeal, and they are best addressed by the district court in the first instance. 

Calzone contends that he is not subject to all of the Federal Motor Carrier Safety

Regulations, 49 C.F.R. pts. 390-97, because his dump truck is a “covered farm

vehicle” under federal law. See 49 C.F.R. § 390.5. The State, at oral argument,

replied that Calzone is indeed involved in the closely regulated commercial trucking

industry, because Missouri law incorporates the federal regulations for trucks of a

certain weight. See Mo. Rev. Stat. § 307.400.1(2), .5. The parties have not

addressed, however, whether Missouri’s incorporation of the federal regulations also

incorporates the exceptions for farm vehicles that are contained within those federal

regulations, or whether Missouri’s own exceptions at § 307.400.1(2) and .5 are

exclusive. Nor have the parties discussed whether a partial exemption from the

federal regulations removes an operator from the realm of the closely regulated

commercial trucking industry. The district court may need to consider these

questions and others to resolve Calzone’s as-applied challenge.

* * *

For the foregoing reasons, we affirm the district court’s dismissal of Calzone’s

facial challenge to Mo. Rev. Stat. § 304.230. We affirm the dismissal of Calzone’s

as-applied claims against the governor and the attorney general and the dismissal of

his claim for damages against the superintendent. We reverse the dismissal of

Calzone’s as-applied claim against the superintendent for declaratory and injunctive

relief and remand for further proceedings. 

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