                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-2404
                       ___________________________

                                     Ray Scott,

                      lllllllllllllllllllll Plaintiff - Appellee,

                                          v.

                    Tobias J. Tempelmeyer, City Attorney,

                     lllllllllllllllllllll Defendant - Appellant.
                                      ____________

                   Appeal from United States District Court
                    for the District of Nebraska - Lincoln
                                ____________

                         Submitted: November 16, 2016
                            Filed: August 16, 2017
                                ____________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      Ray Scott sued the City of Beatrice, Nebraska, Mayor Dennis Schuster, and
City Attorney Tobias Tempelmeyer, claiming violations of his First and Fourth
Amendment rights. The district court granted summary judgment for the City and
Schuster and partial summary judgment for Tempelmeyer on Scott’s Fourth
Amendment claim. The court denied Tempelmeyer qualified immunity on Scott’s
First Amendment claim alleging that Tempelmeyer retaliated against Scott for
exercising his right to free speech. Tempelmeyer appeals the denial of qualified
immunity. We conclude that the First Amendment right asserted by Scott—a right
to be free from retaliatory regulatory enforcement that is otherwise supported by
probable cause—was not clearly established. We therefore reverse the district court’s
order denying in part Tempelmeyer’s motion for summary judgment based on
qualified immunity.

                                          I.

       Beginning in 2005, Scott was the lessor and operator of the Villa Motel, a two-
building motel located in Beatrice, Nebraska, and owned by Wayne Schulz. During
his tenure, Scott engaged in a long-running dispute with the City and Tempelmeyer
regarding the Motel’s failure to pay lodging taxes. In December 2009, Tempelmeyer
warned Scott and Schulz by letter that if they did not remit the unpaid lodging taxes
by January 8, 2010, the City would take legal action to collect the taxes or prosecute
them for zoning violations.

       In November 2010, Tempelmeyer received photographs of the Motel’s interior
and basement from the lessee of an adjacent commercial building. After reviewing
the photographs, Tempelmeyer directed Dennis Mitchell, the chief building inspector
for the City, to inspect the property for safety issues with Sean Lindgren, the deputy
state fire marshal. Mitchell obtained a search warrant from a local judge and
inspected the Motel with Lindgren and another city employee.

       Lindgren noted several fire code violations and safety hazards; he concluded
that the Motel was unfit for occupancy. Lindgren ordered that the Motel correct the
deficiencies, or submit and secure approval of a plan of correction, before the Motel
could be reoccupied. After the inspection, city building inspector Mitchell sent Scott



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and Schulz a letter at Tempelmeyer’s direction, identifying the “fire and life safety
issues” found during the inspection.

       Meanwhile, Mitchell told Tempelmeyer that he did not think the issues were
life-threatening or that the Motel should be condemned—i.e., adjudged unfit for
occupancy. According to Mitchell, he had never been ordered to condemn a property
after he concluded that it did not present life-threatening issues. Tempelmeyer
nonetheless told Mitchell to condemn the Motel. The City Code of Beatrice
incorporates the International Property Maintenance Code, which provides that an
official may give notice of condemnation if he “determines” or “has grounds to
believe” that a violation has occurred. Int’l Prop. Maint. Code § 107.1 (Int’l Code
Council 2003).

      Scott sued the City of Beatrice, Mayor Schuster, and City Attorney
Tempelmeyer under 42 U.S.C. § 1983, asserting that the defendants violated his
rights under the First and Fourth Amendments, as incorporated through the
Fourteenth Amendment. He claimed that the inspection and condemnation were
conducted in retaliation for his disputing whether a certain tax was applicable to his
business, in violation of the First Amendment. He further alleged the inspection was
conducted without a warrant or his permission, contrary to the Fourth Amendment.

       The district court granted summary judgment for the City and Mayor Schuster.
The court also granted summary judgment for Tempelmeyer on the Fourth
Amendment claim, but denied his motion on the First Amendment retaliation claim.
The court determined that there was evidence that Tempelmeyer retaliated against
Scott for exercising his First Amendment rights by ordering an inspection and
condemnation of the Motel. Tempelmeyer appeals the district court’s denial of
qualified immunity.




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       We have jurisdiction to review an interlocutory appeal of the denial of qualified
immunity under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 528-
30 (1985). Qualified immunity shields a government official from suit when his
conduct “does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Tempelmeyer is entitled to qualified immunity unless the right asserted
by Scott was established “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). Immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). We review the district
court’s ruling on qualified immunity de novo.

                                           II.

       Scott argues that Tempelmeyer ordered Mitchell to inspect the Villa Motel and
to condemn the property in retaliation for Scott’s speech about the tax dispute
between the City and the Motel. It is settled at a high level of generality that the First
Amendment prohibits government officials from retaliating against a citizen for
exercising his right of free speech. Hartman v. Moore, 547 U.S. 250, 256 (2006).
But to establish a First Amendment retaliation claim in a particular case, a plaintiff
must show (1) that he engaged in a protected activity, (2) that the defendant’s actions
caused an injury to the plaintiffs that would chill a person of ordinary firmness from
continuing to engage in the activity, and (3) that a causal connection exists between
the retaliatory animus and the injury. Bernini v. City of St. Paul, 665 F.3d 997, 1007
(8th Cir. 2012).

      In Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007), this court crafted
a causation standard for the third element in a case involving enforcement of county
environmental regulations. The plaintiffs in Osborne sought relief from valid adverse
regulatory action on the ground that it was unconstitutional retaliation for speech

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protected by the First Amendment. The lawsuit claimed that a county in Minnesota
and four county officials retaliated against the plaintiffs for criticizing the county’s
lax enforcement of regulations. This court said that the plaintiffs

      must make the same showing that is required to establish a claim of
      selective prosecution—“that he has been singled out for prosecution
      while others similarly situated have not been prosecuted for conduct
      similar to that for which he was prosecuted [and] that the government’s
      discriminatory selection of him for prosecution was based upon . . . his
      exercise of his first amendment right to free speech.”

Id. (alteration in original) (quoting United States v. Catlett, 584 F.2d 864, 866 (8th
Cir. 1978)).

       Shortly after Osborne, however, this court in Williams v. City of Carl Junction,
480 F.3d 871 (8th Cir. 2007), elaborated on the causation element of a First
Amendment retaliation claim. The court first observed that Hartman v. Moore held,
in a case brought against investigators alleging retaliatory criminal prosecution, that
a plaintiff must show the absence of probable cause supporting the prosecutor’s
action. 547 U.S. at 263-66. Hartman contrasted “the requisite causation in ordinary
retaliation claims, where the government agent allegedly harboring the animus is also
the individual allegedly taking the adverse action,” id. at 259, with causation in a case
like Hartman, where the plaintiff alleged that investigators with retaliatory animus
induced a prosecutor to bring charges against the plaintiff. The Court concluded that
where the causal connection required was “between the retaliatory animus of one
person and the action of another,” id. at 262, an absence of probable cause for
prosecution was required “to bridge the gap between the nonprosecuting government
agent’s motive and the prosecutor’s action.” Id. at 263.

       Williams involved a claim that a mayor harbored retaliatory animus against the
plaintiff citizen. The plaintiff alleged that the mayor induced the police chief and the

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city administrator to issue (or to cause other officers to issue) citations to the plaintiff
for violating various municipal ordinances. Some of this activity was regulatory
enforcement: citations for violating set-back regulations, for improperly storing
construction materials, and for overgrown grass and weeds. 480 F.3d at 874. This
court concluded that even where intervening actions by a prosecutor were not present,
the rule of Hartman should apply. The court reasoned that because the plaintiff
claimed that an actor with retaliatory animus (the mayor) induced other actors (police
or code-enforcement officers) to take adverse action against the plaintiff, the absence
of probable cause would bridge the gap between the two actors and show that
retaliatory motive caused the action. Id. at 876. Conversely, said the court, “the
presence of probable cause would necessarily eliminate the possibility that a causal
link between the Mayor’s retaliatory animus and the officers’ ‘prosecution’ could be
established.” Id. at 876-77.

       Williams was later criticized by one judge of this court for extending Hartman
to “an ordinary retaliation claim, i.e. ‘where the government agent allegedly harboring
the animus is also the individual allegedly taking the adverse action.’” Cross v.
Mokwa, 547 F.3d 890, 904 (8th Cir. 2008) (Bye, J., concurring in part, dissenting in
part, and concurring in the judgment in part) (quoting Hartman, 547 U.S. at 259). It
is debatable whether Williams extended Hartman quite that far: Williams appeared
to rely on the separation between the alleged retaliatory animus of the mayor and the
adverse action taken by police or code-enforcement officers. 480 F.3d at 876. Yet
this court in Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir. 2000), Cross, 547
F.3d at 896-97 (majority opinion), id. at 904 (opinion of Bye, J.), McCabe v. Parker,
608 F.3d 1068, 1075 (8th Cir. 2010), and Peterson v. Kopp, 754 F.3d 594, 602 (8th
Cir. 2014), required an absence of probable cause to prove a First Amendment
retaliation claim against a law enforcement officer who allegedly both harbored
animus and made an arrest based on the animus. In Reichle v. Howards, 566 U.S. 658
(2012), the Supreme Court—relying in part on this court’s decision in McCabe—held



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that there was no clearly established right to be free from a retaliatory arrest that is
otherwise supported by probable cause. Id. at 664-70.

        In light of all of this precedent, Scott cannot show a clearly established right
to be free from regulatory enforcement that is otherwise supported by probable cause.
Scott’s claim faces a greater hurdle than those of the plaintiffs in the single-actor
arrest cases of Reichle, McCabe, and Cross. Here, Scott alleges that Tempelmeyer
induced or directed Mitchell, the building inspector, to enforce the code against the
Motel. The case thus presents the scenario addressed in Williams, where the actor
with alleged retaliatory animus (Tempelmeyer) is different from the actor taking the
alleged adverse regulatory action (Mitchell). Osborne addressed a claim of
retaliatory enforcement of regulations without mentioning the absence of probable
cause. But it was reasonably debatable in November 2010 that the reasoning of
Williams would apply to a claim like Scott’s that combined the animus of one actor
and the injurious regulatory action of another. It was also not unreasonable to think
that the reasoning of subsequent single-actor law enforcement cases such as Cross
and McCabe would apply to a regulatory enforcement case. It was therefore not
clearly established at the time of the inspection and condemnation that Scott had a
right under the First Amendment to be free from a regulatory enforcement
action—directed by Tempelmeyer and implemented by Mitchell—that was supported
by probable cause.

        Mitchell’s condemnation of the Motel was supported by probable cause. Under
the Code, a structure must be condemned when it is “found by the code official to be
unsafe, or when [it] is found unfit for human occupancy, or is found unlawful.” Int’l
Prop. Maint. Code § 108.1. A structure is “unfit for human occupancy” when, among
other things, it is insanitary, contains filth and contamination, or lacks maintenance.
Id. § 108.1.3. The pictures submitted to Tempelmeyer showed insanitary conditions,
filth, and contamination. Both Mitchell and Lindgren, the deputy state fire marshal,
found numerous fire code violations and safety hazards at the Motel, including open

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gas piping, black mold, and improper maintenance of the mechanical, electrical, and
plumbing systems. Lindgren concluded that the Motel was not approved for human
occupancy, and the record amply supports that conclusion.

      Because there was probable cause to support Mitchell’s regulatory enforcement
action against the Motel, Tempelmeyer is entitled to qualified immunity on Scott’s
First Amendment retaliation claim. The district court’s order denying in part
Tempelmeyer’s motion for summary judgment based on qualified immunity is
reversed.
                      ______________________________




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