United States Court of Appeals

For the Eighth Circuit 

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No. 21-2894

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Raymond Redlich; Christopher Ohnimus

 Plaintiffs - Appellants

v.

City of St. Louis, a municipality and political subdivision of the State of Missouri

 Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: June 16, 2022

Filed: October 12, 2022

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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ,1 District Judge. 

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MENENDEZ, District Judge.

Appellants, Pastor Raymond Redlich and Christopher Ohnimus,

commendably distribute food to homeless people in the City of St. Louis and wish 

to continue doing so as part of their charitable and religious practice. In October 

1

The Honorable Katherine M. Menendez, United States District Judge for the 

District of Minnesota, sitting by designation.
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2018, a St. Louis police officer observed Appellants distributing bologna sandwiches 

and issued each a citation for violating a city ordinance requiring a permit for the 

distribution of “potentially dangerous food.” Although the City declined to prosecute 

the citations, Pastor Redlich and Mr. Ohnimus filed this suit, claiming that the City’s

enforcement of the ordinance violated their federal and state constitutional rights and 

Missouri statutes. The district court2 granted the City’s motion for summary 

judgment and declined to exercise supplemental jurisdiction over the state claims. 

We affirm.

I. 

Pastor Redlich and Mr. Ohnimus are Christians who both live and work in the 

City of St. Louis. Pastor Redlich is the Vice President of the New Life Christian 

Evangelical Center, and Mr. Ohnimus is his assistant. Both Pastor Redlich and 

Mr. Ohnimus believe it is their religious duty to provide food, drink, and spiritual 

support for those in need, and particularly for the City’s homeless population. 

On October 31, 2018, Appellants distributed bologna sandwiches and bottled 

water to hungry people that they encountered in St. Louis. Though they sometimes 

also shared religious literature with the recipients of the food, they did not do so that 

day. St. Louis Police Officer Stephen Ogunjobi saw Appellants passing out the

sandwiches and approached them. Officer Ogunjobi cited Appellants for distributing 

food without a permit in violation of the St. Louis Food Code. In his incident report, 

Officer Ogunjobi noted that Appellants passed out sandwiches stored in a cooler 

with no ice.

2

Nannette A. Baker, United States Magistrate Judge for the Eastern District of 

Missouri, to whom the case was referred for final disposition by consent of the 

parties pursuant to 28 U.S.C. § 636(c).
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At the time Appellants received these citations, St. Louis Ordinance 

No. 68597 (“the Ordinance”) contained the provisions relevant to this appeal.

3 The 

Ordinance places restrictions on the distribution of “potentially hazardous food.”4

For example, “[t]he preparation or service of . . . sandwiches containing MEAT, 

POULTRY, EGGS, or FISH is prohibited” by temporary food establishments. For 

those seeking to distribute other potentially hazardous foods on a temporary basis, a 

temporary food permit is required, which costs $50 for each day of operation, and 

must be applied for more than 48 hours before the event. In addition, the operation 

must have a hand-washing station for employees; several food-grade washtubs; and 

enough potable water available for food preparation, cleaning of utensils and other 

equipment, and for hand washing.

Consistent with the instructions on their citations, Appellants appeared at the 

City’s municipal courthouse on December 4, 2018. They met with attorneys in the 

City Counselor’s Office, who informed them the City would not pursue the citations. 

3

The Ordinance was adopted March 16, 2010, and remained in effect until 

April of 2020, when it was repealed and superseded by a new ordinance.

4

The term “potentially hazardous food” in the Ordinance is drawn from the 

2009 Edition of the National Food Code published by the U.S. Department of Health 

and Human Services, Public Health Service, and Food and Drug Administration. 

“‘Potentially hazardous food’ means a food that requires time/temperature control 

for safety (TCS) to limit pathogenic microorganism growth or toxin formation,” and 

specifically includes raw or heat-treated animal foods. FDA Food Code 2009, Ch. 1, 

§ 1-201.10(B) (Potentially Hazardous Food definition, subparagraphs (1)–(2)(a)). It 

excludes, for example, hard-boiled eggs in the shell, foods packaged in hermetically 

sealed containers and prepared under sterile conditions, and foods that have been 

handled to prevent the growth of toxins and microorganisms. Id. (Potentially 

Hazardous Food definition, subparagraph (3)). More recently, in the 2017 Edition of 

the National Food Code, the term “potentially hazardous foods” was replaced with 

the term “time/temperature control for safety food,” but its meaning remains the 

same. FDA Food Code 2017, Ch. 1, § 1-201.10(B) (Time/Temperature Control for 

Safety Food definition).
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Later that day, the City’s Public Safety Director publicly stated that issuing citations 

to those feeding the homeless was not a priority.

Just over one month after the City elected not to pursue the citations, 

Appellants filed this action. They alleged that, as applied to them, the St. Louis Food 

Code violates their First Amendment rights under the Free Exercise and Free Speech 

Clauses and sought both declaratory and prospective injunctive relief. While the 

litigation was pending in the district court, the City amended the St. Louis Food 

Code on two occasions. First, on April 18, 2020, the City enacted Ordinance 

No. 71106 (“the 2020 Ordinance”). The 2020 Ordinance introduced a Charitable 

Feeding Temporary Food Permit, at a reduced cost, and a Temporary Food Safety 

Training Program designed for those who wished to help feed the public free of 

charge. Just after the briefing was complete on the parties’ summary judgment 

motions, the City amended the St. Louis Food Code again, enacting Ordinance 

No. 71324 (“the 2021 Ordinance”) on February 23, 2021. The 2021 Ordinance, 

which remains in effect today, adopted several chapters of the 2017 Edition of the 

National Food Code, and retained the Charitable Feeding Temporary Food Permit 

and Temporary Food Safety Training Program.

The district court granted the City’s motion for summary judgment and denied 

the Appellants’ cross-motion for partial summary judgment. Redlich v. City of St. 

Louis, 550 F. Supp. 3d 734 (E.D. Mo. 2021). The court found that although the 2020 

and 2021 amendments to the St. Louis Food Code post-dated Appellants’ conduct, 

their claims were not moot because there remained “a credible threat of present or 

future enforcement against [Appellants].” Id. at 749. However, the court concluded 

that Appellants could not prevail on their First Amendment free-exercise claim, id. 

at 750–54, speech claim, id. at 754–59, or hybrid-rights claim, id. at 761–62. This 

appeal followed.5

5

The district court also granted summary judgment to the City on Appellants’ 

claim that the regulation violated their freedom to associate under the First 

Amendment and their right to equal protection under the Fourteenth Amendment, 
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II. 

“We review the district court’s grant of summary judgment de novo, drawing 

all reasonable inferences, without resort to speculation, in favor of the non-moving 

party.” Wilson v. Miller, 821 F.3d 963, 967 (8th Cir. 2016) (quoting Carrington v. 

City of Des Moines, 481 1046, 1049 (8th Cir. 2007)). “Summary judgment is 

appropriate only if the moving party satisfies its burden of demonstrating that no 

genuine issues of material fact remain for trial.” Murchison v. Rogers, 779 F.3d 882, 

887 (8th Cir. 2015).

A.

Pastor Redlich and Mr. Ohnimus appeal the summary judgment decision in 

favor of the City on their claim that the Ordinance violates their rights under the Free 

Speech Clause of the First Amendment. They assert that the City’s enforcement of 

the Ordinance against them interferes with their ability to communicate their 

message about God’s love and concern for those in need. We affirm the district 

court’s disposition of this claim.

The First Amendment, applicable to the states through the Fourteenth 

Amendment, provides that “Congress shall make no law . . . abridging the freedom 

of speech.” U.S. Const. amend. I. In addition to protecting “the spoken or written 

word, . . . conduct may be ‘sufficiently imbued with elements of communication to 

fall within the scope of the First and Fourteenth Amendments.’” Texas v. Johnson, 

491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).

id. at 759–61, but Appellants have expressly waived those issues on appeal.

Appellants’ Br. 24. The district court’s determination that it should not exercise 

supplemental jurisdiction over the Appellants claims under the Missouri 

Constitution and the Missouri Religious Freedom Restoration Act is also not before 

us. Id. at 763.
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To decide whether conduct is sufficiently imbued with communicative 

elements to be protected, courts ask “whether ‘[a]n intent to convey a particularized 

message was present and [whether] the likelihood was great that the message would 

be understood by those who viewed it.’” Id. (alterations in original) (quoting Spence, 

418 U.S. at 410–11). A person’s intent to express an idea through conduct cannot 

alone bring that conduct within the First Amendment’s protection of speech. 

Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65–66 (2006) 

(citing United States v. O’Brien, 391 U.S. 367, 376 (1968)); Adam & Eve Jonesboro, 

LLC v. Perrin, 933 F.3d 951, 957 (8th Cir. 2019) (citing Masterpiece Cakeshop, Ltd. 

v. Col. Civ. Rights Comm’n, 138 S. Ct. 1719, 1742 (2018) (Thomas J., concurring in 

part and concurring in the judgment)). “Instead, [the Supreme Court] ha[s] extended 

First Amendment protection only to conduct that is inherently expressive.” 

Rumsfeld, 547 U.S. at 66.

Even where a person’s conduct is inherently expressive, and may, therefore, 

be considered speech, a governmental regulation that restricts the ability to engage 

in the expressive behavior does not necessarily violate the First Amendment. 

O’Brien, 391 U.S. at 376. “[W]hen ‘speech’ and ‘nonspeech’ elements are combined 

in the same course of conduct, a sufficiently important governmental interest in 

regulating the nonspeech element can justify incidental limitations on First 

Amendment freedoms.” Id. A regulation does not violate a person’s freedom of 

expression under the following circumstances:

if it is within the constitutional power of the Government; if it furthers 

an important or substantial governmental interest; if the governmental 

interest is unrelated to the suppression of free expression; and if the 

incidental restriction on alleged First Amendment freedoms is no 

greater than is essential to the furtherance of that interest.

Id. at 377; see Telescope Media Gr. v. Lucero, 936 F.3d 740, 756 (8th Cir. 2019)

(stating that if “the government seeks to neutrally regulate the non-speech element 

[of a person’s conduct], intermediate scrutiny applies under the incidental-burden 

doctrine”).
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Appellants do not suggest that the City lacks the constitutional power to enact 

the Ordinance, nor do they contend that the City’s interest in preventing the spread 

of foodborne illness is related to suppression of free expression. Instead, Appellants 

argue that the Ordinance does not further an important or substantial government 

interest and that the Ordinance is not sufficiently tailored to the asserted interest. We 

disagree. Appellants’ expressive-conduct claim fails because, even assuming that 

the conduct at issue is sufficiently communicative to fall within the First 

Amendment’s purview, the Ordinance satisfies the test set forth in O’Brien.

6

 

First, we reject Appellants’ suggestion that the City failed to show that its 

asserted interest is a substantial one. Both common sense and the record say 

otherwise. It is an imminently reasonable proposition that a municipality has a 

substantial interest in preventing the spread of illness or disease among its citizens, 

including its homeless population. And the evidence before the district court belies 

Appellants’ claim that the City failed to make an adequate showing with respect to 

the interest served by the Ordinance. The City introduced evidence that it has traced 

incidents of illness among its homeless population to illegally distributed food dating 

back to 2012. The City also pointed to CDC data indicating that nationally, in 2018 

alone, nearly 6,000 people were hospitalized and 120 people died due to foodborne 

illness. 

Appellants argue that several “data points” undercut the importance of the

City’s interest in preventing foodborne illness. For example, Appellants point to the 

decision not to pursue the citations and the Director of Public Safety’s December 4, 

2018, statement that issuing such citations was not a priority for the City. These 

details do not undermine our conclusion. The Director’s press release downplayed 

the importance of criminal enforcement of the Ordinance, but it reinforced the 

regulation’s goal “to prevent people from contracting a dangerous foodborne 

6

The district court similarly found it unnecessary to decide whether 

Appellants’ conduct was inherently expressive because the Ordinance does not 

violate their right to free expression under O’Brien. Redlich, 550 F. Supp. 3d at 757–

59.
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illness.” That same municipal goal is reflected in Officer Ogunjobi’s incident report, 

which stated that health department officials asked “officers . . . to identify 

individuals who are breaking the rules, so they can follow-up and bring them to 

compliance.” And on this record, the City Counselor’s Office’s decision to forego 

prosecution of the citations similarly appears to have been based on a choice to 

prioritize obtaining compliance over criminal enforcement, not a tacit admission that 

prevention of foodborne illness is an insubstantial concern.

7

In addition to finding that the City’s interest is substantial, we conclude that 

the Ordinance furthers that interest and is narrowly tailored to it. To satisfy the 

O’Brien standard “a regulation need not be the least speech-restrictive means of 

advancing the Government’s interests. Rather, the requirement of narrow tailoring 

is satisfied, so long as the regulation promotes a substantial government interest that 

would be achieved less effectively absent the regulation.” Turner Broad. Sys., Inc. 

v. F.C.C., 512 U.S. 622, 662 (1994) (cleaned up). 

As noted above, the Ordinance adopted the 2009 Edition of the National Food 

Code, which is based on scientific research and was intended to provide 

municipalities with guidelines and rules to limit risk factors known to cause 

7

Appellants also suggest that the City’s interest is not substantial because the 

regulation does not require a permit if a person shares potentially hazardous foods 

at a potluck or dinner party, but this argument is far afield from their as-applied 

challenge. Moreover, it rests upon a flawed reading of the Ordinance. If the potluck 

or dinner party were in a private space, the person would not be subject to the 

permitting and other requirements of the Ordinance even if potentially hazardous 

food were shared with family members and friends. But if such an event involves 

distribution of potentially hazardous food to the public, the Ordinance’s requirement 

for a permit and its other provisions would be applicable. The Ordinance applies to 

“Temporary Food Establishments,” which are a form of “Food Establishment” under 

the 2009 Edition of the National Food Code. FDA Food Code 2009, Ch. 1, § 1-

201.10(B) (Temporary Food Establishment definition). A “Food Establishment” is, 

in turn, an operation that “stores, prepares, packages, serves, [or] vends food directly 

to the consumer.” Id. (Food Establishment definition subparagraph (1)(a)). And a 

“consumer” is “a person who is a member of the public.” Id. (Consumer definition).
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foodborne illness. The City offered evidence that food contaminated by pathogenic 

microorganism growth and toxin formation causes foodborne illness. The same 

criteria determine how the National Food Code defines “potentially hazardous 

food.” And, in turn, the Ordinance identifies sandwiches containing meat, poultry, 

eggs, or fish as among those foods considered to be potentially hazardous. As 

applied to Appellants, the Ordinance furthers the City’s important interest in 

preventing the spread of foodborne illness by regulating the distribution of 

potentially hazardous food—namely, sandwiches containing bologna. 

The Ordinance requires Appellants to obtain a permit and meet other 

requirements only if they distribute potentially hazardous food,

8 and imposes such 

conditions because they are effective at preventing the spread of foodborne illness. 

To distribute potentially hazardous food on a temporary basis, Appellants would be 

8

In their briefing and at oral argument, Appellants asserted that the City would 

place onerous restrictions on their food-sharing activities even if they were to 

distribute only pre-packaged, ready-to-eat food that was not potentially hazardous. 

Appellants’ Br. 13; Appellants’ Reply 10–11. Appellants point to the Ordinance’s 

definition of a “Mobile Food Establishment,” which includes packaged-food 

distributors using vehicles that serve only pre-packaged, “ready-to-eat FOOD or 

drink and/or whole, uncut fruit and/or vegetables from an APPROVED source.”

Ordinance No. 68597, Ch. 1 (Mobile Food Establishment definition subparagraph 

(3)). This does not change the outcome here. Under the Ordinance, a Mobile Food 

Establishment is itself a “Food Establishment,” which, in turn, is defined as an 

operation that serves “potentially hazardous foods.” Id., Ch. 1 (Food Establishment 

definition subparagraph (1)(c)). But more importantly, nothing in the record suggests 

that Appellants were cited for violating the Mobile Food Establishment rules, nor 

that they received a citation for distributing food items that do not meet the definition 

of “potentially hazardous food.” And Appellants provide no reason to conclude that 

under the version of the St. Louis Food Code currently in effect, they are likely to 

be prosecuted if they pass out food that is not potentially hazardous. This is, after 

all, an as-applied challenge to the Ordinance, and Appellants have not alleged that 

the regulation is (or would likely be) applied to them in this manner. See McCullen 

v. Coakley, 573 U.S. 464, 485 n.4 (2014) (“[A] plaintiff generally cannot prevail on 

an as-applied challenge without showing that the law has in fact been (or is 

sufficiently likely to be) unconstitutionally applied to him.”).
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required to pay a $50 fee for the permit at least two days in advance of their foodsharing activities and notify the City of both the time and place where the food would 

be distributed. These provisions ensure that health inspectors have an opportunity to 

determine whether the temporary food establishment is complying with the 

Ordinance. When operating a temporary food establishment, Appellants would also 

have to ensure: that they take steps to prevent contamination of any ice served to 

consumers; that tableware provided to consumers is only in single-service and 

single-use articles; that any equipment is located and installed in a way that avoids 

food contamination and to facilitate cleaning; that food-contact surfaces are 

protected from consumer contamination; and that they have water available for 

cleaning utensils and equipment and to make convenient handwashing facilities 

available for any employees. Without these provisions regarding the distribution of 

potentially hazardous food to the public, the City’s goal of preventing foodborne 

illness would be achieved less effectively. 

Moreover, we note that nothing about the City’s enforcement of the Ordinance 

against Appellants prevents them from conveying their religious message in other 

ways. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 298 (1984) 

(explaining that time, place, and manner restrictions on expression are valid where, 

among other things, they “leave open ample alternative channels for communication 

of the information” and noting that the O’Brien test is “little, if any, different from 

the standard applied to time, place, and manner restrictions”). For example, 

Appellants may continue engaging in the allegedly expressive act of sharing nonhazardous food with those in need while simultaneously discussing the substance of 

their message with them or with passersby, sharing literature, or engaging in other 

protected speech. Enforcement of the Ordinance against Appellants for the 

distribution of potentially hazardous food limits none of those alternative avenues of 

expression.

We affirm the district court’s entry of summary judgment in favor of the City 

on Appellants’ freedom-of-expression claim.
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B. 

Appellants also argue that the City was not entitled to summary judgment on 

their hybrid-rights claim under Department of Human Resources v. Smith, 494 U.S. 

872 (1990). Appellants claim that because they asserted both a Free Exercise claim 

and a freedom-of-expression claim, the district court erred by refusing to apply strict 

scrutiny to their hybrid-rights claim. We disagree. Appellants concede that they do 

not have a viable claim under the Free Exercise Clause, and their expressive-conduct 

claim lacks merit. Because each of the claims making up their hybrid-rights claim 

“fails on its own, . . . this case is not in the class of hybrid situations in which the 

Free Exercise Clause in conjunction with other constitutional protections, such as 

freedom of speech, can bar application of a neutral, generally applicable law.” 

B.W.C. v. Williams, 990 F.3d 614, 622 (8th Cir. 2021) (quotation omitted). 

The judgment of the district court is, therefore, affirmed. 

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