## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 21

- 2894

___________________________ Raymond Redlich; Christopher Ohnimus Plaintiffs - Appellants

v. City of St. Louis, a municipality and political subdivision of the State of Missouri Defendant - Appellee

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: June 16, 2022

File d: October 12, 2022

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

____________
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.-2- 2018 , a St. Louis police officer observed Appellants distributin g bologna sandwiches and issued each a citation for violating a city o rdina nce requiring a permit for the distribution of “potentially dangerous food.” Although the City declined to prosecute the citation s , Pastor Redlich and Mr. Ohnimus filed this suit , claiming that the City’s enforcement of the o rdinance violated their federal and state constitutional rights and Missouri statutes . The district court 2 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 Evangelic al Center, and Mr. Ohnimus is his assistant. Both Pastor Redlich and Mr. Ohnimus believe it is their religious dut y to provide food, drink, and spiritual support for those in need, and particularly for the City’s homeless population

. On October 31, 2018, A ppellants 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 St ephen 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 i ncident r eport, Officer Ogunjobi noted that Appellants passed out sandwiches stored in a cooler with no ice.

2 Nan n ette 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).-3- At the time Appellants received the se 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. F or 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 municipa l courthouse on December 4, 2018 . They met with attorneys in the City Counselor’s Office , who informed them the City would not p ursue 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. “‘P otentially 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 toxi ns 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).-4- Later that day, the City’s Public Safety Director publicly stated that issuing citations
to those feeding t he 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 Clause s and sought both declaratory and prospective injunctive relief

. While the litigation was pending in the district court , the City amended the St. Lo uis 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 th e 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 retain ed 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,-5- II.
“We review the district court’s grant of summary judgment de novo, dr awing 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 appropri ate 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 n ot 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.-6- 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 inciden tal 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”).-7- 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 argu e 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 cond uct 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 ’ suggest ion that the City failed to show that its asserted interest is a substantial one . B oth 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 . T he City i ntroduced evidence that it has traced incidents of illness among its homeless popu lation to illegally distributed food dating back to 2012 . Th e City also pointed to CD C 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 , s tatement that issuing su ch citations was not a priority for the City

. These details do not undermine our conclusion. T he Director’s press release downplayed the importance of criminal enforcement of the O rdinance, but it rein forced 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.-8- illness.” That same municipal goal is reflected in Officer Ogunjobi’s i ncident r eport , 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 prioritiz e 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 further s 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 ach ieved 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 part y , but this argument is far afield from their as

- applied challenge. Moreover, it rests upon a flawed reading of th e 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 ev ent 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 appl ies to “T emporary F ood E stablishments,” which are a form of “ Fo od E stablishment” under the 2009 Edition of the National Food Code. FDA Food Code 2009, Ch. 1, § 1- 201.10(B) (Temporary Food Establishment definition). A “F ood E stablishment” 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).-9- foodborne illness. The City offered evidence that food contaminated by pathogenic microorganism growth and toxin formation causes foodborne illness. The same crite ria determine how the National Food Code defin es “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 prevent ing the spread of foodborne illness

. To distribute potentially hazardous food on a tempor ary basis, Appellants would be

8 In their briefing and at oral argument, Appellants asserted that the City would pl ace 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 o f a “Mobile Food Establishment ,” which include s 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 hazardou s 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 “p otentially hazardous food .” A nd A ppellants 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 n ot 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 be e n (or is sufficiently likely to be) unconstitutionally applied to him.”).- 10 - required to pay a $50 fee for the permit at least two days in advance of their food

sharing 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 ic e 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 avoid s food contamination and to facilitate cleaning ; that f ood

- contact surfaces are pr otected 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 n on

hazardous food with th ose in need while simultaneously discussing the substance of their message with them or with passersby , shar ing literature, or engag ing 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.- 11 - 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.

______________________________