                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-2885
                          ___________________________

                                      David Miller

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

City of St. Paul; Thomas Smith, in his official capacity as Chief of Police for City
 of St. Paul Police Department; Patricia Englund, individually and in her official
    capacity as Patrol Commander for the City of St. Paul Police Department

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                      Appeal from United States District Court
                     for the District of Minnesota - Minneapolis
                                    ____________

                              Submitted: March 17, 2016
                                Filed: May 23, 2016
                                   ____________

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

MURPHY, Circuit Judge.

      David Miller brought this action against the City of St. Paul, its police chief,
and police officer Patricia Englund, alleging violations of his First Amendment right
to engage in religious speech at the 2014 Irish Fair. Miller also sought a preliminary
injunction to enjoin similar violations at future Irish Fairs. The district court denied
Miller's preliminary injunction motion and dismissed his complaint after concluding
that he lacked standing to pursue his claims. Miller appeals. We affirm in part and
reverse and remand in part.

                                           I.

       The Irish Fair of Minnesota (IFM) is a private nonprofit organization which
organizes the annual Irish Fair, a three day event celebrating Irish culture. The fair
takes place at Harriet Island Regional Park (Harriet Island), a public park in St. Paul,
Minnesota. IFM obtains permits from the city allowing it to host the fair, which is
open to the public free of charge. Harriet Island remains a public park during the fair.

       The city's administrative regulations governing permits for the use of Harriet
Island require a security plan to be submitted sixty days before an event. St. Paul
patrol commander Patricia Englund drafted the security plan for the 2014 Irish Fair,
which was implemented by off duty St. Paul police officers. The plan contained a list
of "prohibited items" which included signs. In addition, IFM's policies and
procedures limited solicitation by vendors and prohibited the distribution of
"merchandise, promotional items or materials" at the fair.

        Miller is an evangelical Christian who planned to share his religious views at
the 2014 Irish Fair by carrying signs, distributing literature, open air preaching, and
initiating conversations with passersby. On August 9, 2014 he and a few friends met
outside the fair entrance, carrying signs and planning to express their shared religious
views. Before they entered the fairgrounds, however, they were approached by an
unidentified police officer and commander Englund. One of Miller's friends
videotaped the following exchange.

        Englund told the group that Harriet Island was IFM's property during the fair,
that its permit allowed it to "make the rules for the property," and that their "signage,

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all that stuff, it's just not welcome." Miller asked her whether she would arrest him
if he displayed a banner on the fairgrounds, and she responded that she would
confiscate it until after the fair. He then asked Englund if she would arrest him if he
distributed religious literature, and she told him that she would "consult with [IFM]
to see what their preference was." He also asked if Englund would arrest him if he
started to open air preach, and she replied that she had not yet decided. Miller told
Englund that her position "wouldn't hold up in court," and the group left to discuss
how to proceed. They eventually departed without attempting to enter the
fairgrounds.

       Miller's attorney later wrote a letter to St. Paul officials, asserting that Englund
had violated Miller's First Amendment rights and demanding nominal damages,
attorney fees, and written assurance that the city would not prohibit Miller's religious
expression at future Irish Fairs. In a written response, the city denied any
wrongdoing, but it acknowledged that Miller could engage in protected speech and
confirmed that it would ensure compliance with the law during future fairs. Not
satisfied with this response, Miller filed a § 1983 suit against the city, its police chief,
and Englund in both her official and individual capacities. His complaint alleged
violations of his First Amendment and due process rights and requested nominal
damages, attorney fees, and declaratory and injunctive relief. Specifically, Miller
alleged that based on his conversation with Englund, he had concluded that IFM's
permit allowed it to exercise "proprietary control" over speech at the 2014 Irish Fair,
thereby facilitating an unconstitutional "heckler's veto" barring his religious speech.
He later filed a motion for a preliminary injunction in the district court to enjoin
similar abridgements of his religious expression at future Irish Fairs.

      After a hearing, the district court denied the preliminary injunction and
dismissed Miller's complaint for lack of jurisdiction, concluding that he lacked
standing to pursue his claims. The court reasoned that Miller's expectations about
how Englund may have responded to his religious speech, which were based on her

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answers to "hypothetical questions," did not demonstrate a specific present harm
because she never took any "overt action" to prevent his religious expression. The
court further concluded that Miller had not shown a threat of specific future harm at
subsequent Irish Fairs, emphasizing that St. Paul had assured him that he could
engage in protected speech at those fairs. Miller appeals.

                                          II.

       "We review a decision dismissing a complaint for lack of standing de novo,
construing the allegations of the complaint, and the reasonable inferences drawn
therefrom, most favorably to the plaintiff." Glickert v. Loop Trolley Transp. Dev.
Dist., 792 F.3d 876, 880 (8th Cir. 2015) (internal quotation marks omitted). To
demonstrate standing, a party must allege an "injury in fact, causation, and
redressability." Mo. Roundtable for Life v. Carnahan, 676 F.3d 665, 672 (8th Cir.
2012). A party may allege an injury in fact "by showing that its First Amendment
rights have been chilled by harm to reputation or threat of criminal prosecution."1 Id.
at 673. That party "must present more than allegations of a subjective chill,"
however, and must allege a "specific present objective harm or a threat of specific
future harm" to establish standing. Eckles v. City of Corydon, 341 F.3d 762, 767 (8th
Cir. 2003) (alterations and internal quotation marks omitted).

                                          A.

        We first address whether Miller has standing to pursue his claims against the
city, its police chief, and commander Englund in her official capacity based on
Englund's alleged conduct at the 2014 Irish Fair. "A plaintiff who sues public
employees in their official . . . capacities sues only the public employer and therefore


      1
        Since Miller has abandoned his due process claims, we limit our analysis to
his First Amendment claims.

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must establish the municipality's liability for the alleged conduct." Kelly v. City of
Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016). Municipal liability under § 1983
cannot be based on respondeat superior, but instead must arise from"action pursuant
to official municipal policy of some nature." Monell v. Dep't of Soc. Servs. of New
York, 436 U.S. 658, 691 (1978). We conclude that Miller has not "asserted facts that
affirmatively and plausibly suggest that [he was] indeed subject to a credible threat
of prosecution" under St. Paul's policies for engaging in religious expression, as he
must to establish standing. Zanders v. Swanson, 573 F.3d 591, 594 (8th Cir. 2009).

       Miller's complaint alleges that St. Paul's permitting scheme gave IFM
"proprietary control" over speech at the 2014 Irish Fair, subjecting him to criminal
prosecution if he engaged in religious expression and chilling his exercise of First
Amendment rights. We have found nothing in the record, however, showing that the
IFM's permits or the city's permitting regulations would subject Miller to prosecution
for engaging in his desired religious expression. See Zanders, 573 F.3d at 594.
Those regulations neither give permit holders control over speech content nor
threaten criminal penalties against those engaging in religious speech in permitted
areas.2 Cf. McGlone v. Bell, 681 F.3d 718, 730–31 (6th Cir. 2012). Indeed, the city
and officers acknowledged below that Englund's statements to Miller did "not
accurately reflect the City's laws or policies." Her actions thus could "not confer
standing on Mr. [Miller] to challenge whether the [permitting policies] violate the
First Amendment . . . because he has not shown the requisite intention to bring
himself within the scope of" any conduct proscribed by those policies. Travis v. Park
City Police Dep't, 277 F. App'x 829, 832 (10th Cir. 2008) (unpublished).




      2
       In fact, the city's regulations governing reservations of public park space for
a permit holder's exclusive use expressly preclude "the limitation of persons
exercising their First Amendment rights."

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       On appeal, Miller apparently abandons his claims regarding the city's
permitting policies and instead argues that the fair security plan prohibiting signs and
IFM's policy barring literature distribution violated his First Amendment rights.
Neither policy was mentioned in his complaint, however, and neither appears to
represent an "official municipal policy" of the city. Monell, 436 U.S. at 691. While
Miller points out that commander Englund was responsible for drafting the security
plan—which he asserts incorporates IFM's policy—he has not alleged any facts
showing that she was "responsible for establishing final government policy respecting
such activity," a prerequisite to municipal liability under § 1983. Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986). Nor has he alleged any "facts showing that
policymaking officials had notice of or authorized [Englund]'s conduct" which could
give rise to municipal liability. Kelly, 813 F.3d at 1076. We therefore affirm the
dismissal of his claims against the city, its police chief, and Englund in her official
capacity.

       We also conclude, however, that Miller has standing to pursue his claim against
commander Englund in her individual capacity. Englund argues that she did not
subject Miller to an objective threat of harm because there was no city policy
restricting his expression and she did not take any "overt enforcement action" against
him. We disagree. While there was no official policy restricting Miller's expression,
§ 1983 imposes liability on an official who "oversteps [her] authority and misuses
power." Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 535 (8th Cir.
2014). Further, we do not believe that Englund had to take any actions more "overt"
than those alleged for Miller to bring a First Amendment claim against her. Englund
allegedly threatened to confiscate any banners Miller displayed, creating a concrete
threat of injury regardless of whether she also threatened to arrest him. See Eckles,
341 F.3d at 768. Miller therefore has standing to pursue his claim against commander




                                          -6-
Englund in her individual capacity, and we reverse and remand for further
proceedings.3

                                           B.

       We finally address whether Miller has standing to seek an injunction
prohibiting restrictions on his religious expression at future Irish Fairs. Our court has
recognized that "a threatened injury must be certainly impending to constitute injury
in fact," and that "allegations of future injury must be particular and concrete."
Johnson v. Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998) (alterations and internal
quotation marks omitted). Here, Miller contends that St. Paul's refusal to
acknowledge any wrongdoing during the 2014 Irish Fair shows that it maintains an
unconstitutional policy that it may invoke to violate his rights in the future. We
disagree.

       As discussed above, Miller has not identified any official "law, ordinance, code
provision, or permitting requirement or regulation . . . that portends the future
violation of [his] rights." Teesdale v. City of Chicago, 690 F.3d 829, 836 (7th Cir.
2012). The city's denial of wrongdoing was in response to correspondence from his
attorney, and its "litigating position, with nothing more, is insufficient to constitute
an official policy" allowing his claims against the city to proceed. Id. at 837. In
addition, the security plan and IFM policies that Miller challenges on appeal applied
only to the 2014 Irish Fair, and St. Paul has confirmed that its officials will comply
with the law during future fairs. Cf. Parks v. City of Columbus, 395 F.3d 643, 653
(6th Cir. 2005). Accordingly, we conclude that Miller's allegations are "too
speculative to invoke the jurisdiction of an Art[icle] III court" because he has not
shown a threat of specific future harm. Johnson, 142 F.3d at 1090. We therefore


      3
        We express no view on the merits of Miller's claim, which the district court
will resolve on remand.

                                          -7-
affirm the denial of Miller's motion for a preliminary injunction and the dismissal of
his claims based on future constitutional violations.

                                         III.

      For these reasons we affirm the denial of Miller's motion for a preliminary
injunction and the dismissal of his claims against St. Paul, its police chief, and
commander Englund in her official capacity. We reverse the dismissal of his claim
against Englund in her individual capacity, however, and remand for further
proceedings not inconsistent with this opinion.
                      ______________________________




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