                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 10-3552
                                 ___________

Brook Bernini; Matthew Byrnes; Simon     *
Cecil; Andrew Cohen; David Drew, Jr.;    *
Alana Michelle Exum; Bobby Reese         *
Hagy, Jr.; Adryn Hayes; Kevin Hundt;     *
Rachel Jackson; Tiana Johnson; Garth     *
Kahl; Jared Lanctot; Michael Larson;     *
Vain Mainstream; Craig Neef; Mary        * Appeal from the United States
Ogle; Tim Phillips; Raphi Rechitsky;     * District Court for the
Lambert Rochfort; Nick Segner; Ryan      * District of Minnesota.
Solem; Zach Swift; Andrew                *
Temperante; Michael Ward, II; Rachel     *
Westlund; Nelson Whitmore; Kellan        *
Dubbels; Kristofer Dubbels; David        *
Morse; Bruce Wilkinson; Adam             *
Hayden, on behalf of themselves and all  *
others similarly situated,               *
                                         *
             Appellants,                 *
                                         *
      v.                                 *
                                         *
City of St. Paul; Steven Frazer; Joe     *
Neuberger; Axel Henry; Patricia          *
Englund; Matthew Clark, in their         *
individual capacity,                     *
                                         *
             Appellees.                  *
                                    ___________

                           Submitted: June 15, 2011
                              Filed: January 13, 2012
                               ___________
Before COLLOTON, CLEVENGER,1 and BENTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

       This civil action arose out of events that occurred on the first day of the 2008
Republican National Convention in St. Paul, Minnesota. Thirty-two people filed suit
under 42 U.S.C. § 1983 against six police officers and the City of St. Paul, alleging
violations of their rights under the First and Fourth Amendments. The parties
stipulated to the dismissal of claims against one officer, and the district court2 granted
the defendants’ motion for summary judgment on the remaining claims. The
plaintiffs appeal the dismissal of their claims against five officers and the City, and
we affirm.

                                            I.

       We recite the facts in the light most favorable to the plaintiffs, the nonmoving
parties. From September 1-4, 2008, St. Paul hosted the Republican National
Convention at the Xcel Energy Center. The Convention attracted large crowds of
protestors. Throughout the first day, property damage was reported around the City.
There were broken building windows, objects thrown at cars and buses, and
vandalized police cars. After marches with permits had ended, Senior Commander
Joseph Neuberger, who was the east area commander for mobile field force
operations during the Convention, ordered that no one be allowed to enter the
downtown area. Neuberger believed it was necessary to “reestablish control [and]
reestablish law enforcement presence” downtown and around the Convention site.

      1
      The Honorable Raymond C. Clevenger, III, Judge of the United States Court
of Appeals for the Federal Circuit, sitting by designation.
      2
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

                                           -2-
       The events at issue occurred on or near Shepard Road in St. Paul. Shepard
Road runs along the southeastern edge of downtown St. Paul and borders the
Mississippi River. The road was a major thoroughfare during the Convention. It
served as a route for emergency vehicles to access the Xcel Energy Center, and it was
the planned route of the First Lady’s motorcade on the evening of September 1.
Although Shepard Road runs along the edge of downtown St. Paul, it provides only
limited access to downtown, because much of the road is bordered by the Mississippi
River on one side and a large concrete wall on the other. Jackson Street and Sibley
Street intersect with Shepard Road and provide access to the east end of downtown
St. Paul.

       After ordering downtown closed, Neuberger learned about a group of people
marching east on Shepard Road. Neuberger instructed a team of officers—known as
Neighborhood Response Team 36 (“Team 36”)—to position itself at the intersections
of Shepard Road and Jackson Street and Shepard Road and Sibley Street to prevent
entry to the downtown. As Team 36 traveled to the intersections, the unit passed a
large group marching along Shepard Road. The officers received information that the
group was connected to unlawful acts that had occurred earlier in the day. Team 36
positioned approximately 11 officers at each intersection, blocking access to the
downtown area.

       At about 4:30 p.m., as seen on video recordings submitted as evidence, a group
of approximately 100 people gathered at the intersection of Shepard Road and
Jackson Street and stood on the sidewalk across the street from the officers on the
south side of Shepard Road. About fifteen people, advancing behind two large signs,
soon began to cross Shepard Road, moving toward the officers and downtown St.
Paul. The words “Direct Action Against Capitalism” were written across one of the
signs.




                                         -3-
       The officers instructed these people to “back up, back up!” As the group
continued to cross Shepard Road, the officers deployed stinger blast balls. These
balls contain rubber pellets; they are designed to sting the targeted persons. The
small group then retreated to the sidewalk on the south side of Shepard Road.
Although the plaintiffs deny seeing anyone throw objects at Team 36, the officers
reported that numerous objects—including rocks and bags containing feces—were
propelled at them.

       After the group retreated to the sidewalk along Shepard Road, it began to move
to the west. The officers, soon joined by reinforcements, also moved west in an
attempt to direct the crowd away from Jackson Street and back in the direction from
which it came. As the crowd proceeded west, it grew to include hundreds of people.
On video footage, members of the crowd can be heard chanting in unison “the whole
world is watching” and various profanities. The police continued to use non-lethal
munitions, including smoke, blast balls, and chemical irritants, in an apparent effort
to keep the crowd moving west.

       In consultation with Neuberger, Steven Frazer, the officer in charge at the
scene, decided to encircle the crowd in a park adjacent to Shepard Road and near
Ontario Street, approximately 0.6 mile west of the Jackson Street intersection.
Because much of Shepard Road is bordered by the river and concrete wall, this park
presented the first opportunity west of Jackson Street to gather the crowd, which now
included approximately 400 individuals. After the officers contained the crowd in the
park, they announced multiple times by loudspeaker that all persons were under arrest
and must sit down and place their hands on their heads. Officers then attempted to
determine who had been present at the Shepard-Jackson intersection. According to
one officer, these people “stayed together as group” and “were segmented off from
the other people” in the park. The sorting process led to the release of approximately
200 people. The officers then booked and placed into custody about 160 others. The



                                         -4-
parties dispute whether the officers ordered the crowd to disperse before encircling
the park and making the arrests.

       Thirty-two people filed suit pursuant to 42 U.S.C. § 1983 against the City of
St. Paul and the five appellee police officers in their individual capacities. The
plaintiffs were present along Shepard Road in various capacities, including as legal
observers, medics, concert-goers, protestors, and members of the media. At least
eighteen plaintiffs were present in the immediate vicinity of the Shepard-Jackson
intersection at the time of the confrontation. The remaining plaintiffs claim they were
located somewhere between the intersection and the park, and were added to the
group as police moved the crowd west. Although each plaintiff was present in the
park when it was encircled by the police, seven plaintiffs (including two who were
present at the Shepard-Jackson intersection) were briefly detained and released, and
twenty-five were booked and taken into custody. Those taken into custody were
released within 72 hours, and all charges were eventually dismissed.

      The plaintiffs allege that the actions of the police on Shepard Road and in the
park violated their rights under the First and Fourth Amendments, as incorporated
against the States through the Fourteenth Amendment. The district court granted
summary judgment in favor of the officers and the City. This appeal followed.

                                            II.

        We first consider the plaintiffs’ claims against the officers. Qualified immunity
shields a public official from suit for civil damages 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). The
officers are therefore entitled to qualified immunity unless (1) the evidence, viewed
in the light most favorable to the plaintiffs, establishes a violation of a constitutional
or statutory right, and (2) the right was clearly established at the time of the violation,

                                           -5-
such that a reasonable officer would have known that his actions were unlawful. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). We have discretion, in light of the
circumstances, to resolve the appeal under either step of this analysis. Harlow, 457
U.S. at 818. We review the district court’s grant of summary judgment de novo,
considering the evidence in the light most favorable to the plaintiffs. Doe v. Flaherty,
623 F.3d 577, 583 (8th Cir. 2010).

                                          A.

       The plaintiffs first allege that the officers violated their Fourth Amendment
right to be free from an unreasonable seizure by making unlawful arrests in the park.
A warrantless arrest is reasonable under the Fourth Amendment where it is supported
by probable cause. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable
cause exists when the facts and circumstances within an officer’s knowledge are
sufficient to lead a person of reasonable caution to believe that the suspect has
committed or is committing a crime. Brinegar v. United States, 338 U.S. 160, 175-76
(1949). In a claim for damages, officers are “entitled to qualified immunity if they
arrest a suspect under the mistaken belief that they have probable cause to do so,
provided that the mistake is objectively reasonable”—that is, officers are not liable
if they had “arguable probable cause” to make the arrest. Amrine v. Brooks, 522 F.3d
823, 832 (8th Cir. 2008).

       The plaintiffs base their claim on the general proposition articulated by the
Supreme Court in Ybarra v. Illinois, 444 U.S. 85 (1979): “Where the standard is
probable cause, a search or seizure of a person must be supported by probable cause
particularized with respect to that person. This requirement cannot be undercut or
avoided by simply pointing to the fact that coincidentally there exists probable cause
to search or seize another . . . .” Id. at 91. The Court in Ybarra held that probable
cause to search a bartender and the premises of a tavern in an Illinois town for
evidence of drug sales did not justify the search of nine to thirteen customers who

                                          -6-
happened to be present at the time of the search. According to the plaintiffs, the
officers here violated the Fourth Amendment by conducting a mass arrest when they
had probable cause with respect to only a subset of the arrestees.

       The touchstone of the Fourth Amendment is reasonableness under the
particular circumstances presented. Samson v. California, 547 U.S. 843, 855 n.4
(2006); Terry v. Ohio, 392 U.S. 1, 19 (1968). What is reasonable in the context of a
potential large-scale urban riot may be different from what is reasonable in the
relative calm of a tavern with a dozen patrons. The D.C. Circuit has addressed the
practical dilemma faced by officers responsible for reacting to large group activity,
and recognized that a “requirement that the officers verify that each and every
member of a crowd engaged in a specific riotous act would be practically impossible
in any situation involving a large riot.” Carr v. District of Columbia, 587 F.3d 401,
408 (D.C. Cir. 2009). The court concluded that the Fourth Amendment “is satisfied
if the officers have grounds to believe all arrested persons were a part of the unit
observed violating the law.” Id. at 407 (emphasis added). Carr thus demonstrates
that a reasonable officer in St. Paul could have believed that the Fourth Amendment
did not require a probable cause determination with respect to each individual in a
large and potentially riotous group before making arrests.

       Based on undisputed evidence, the officers in this case reasonably could have
concluded that the group at the Shepard-Jackson intersection had committed a crime
and that the group was acting as a unit. See Scott v. Harris, 550 U.S. 372, 378-81 (2007)
(holding that a court of appeals should view the facts on summary judgment in the
light depicted by a videotape that captured the events in question). Video footage
shows that the group marched east on Shepard Road and then stopped at the
intersection, positioning itself directly across from the line of Team 36 officers.
Many members of the group had donned gas masks and other facial coverings, as
though they were preparing for a confrontation with police. Flags waived from
within the crowd, and several people can be heard shouting profanities and taunting

                                          -7-
the officers. A portion of the group, shielding itself behind two large signs, then
began to cross the intersection toward the officers. And after the confrontation at the
intersection, as the group was driven west on Shepard Road, members chanted
statements in unison.

       From these actions, a reasonable officer could have concluded that the
individuals at the intersection were acting together and that they intended to break
through the police line in an attempt to access downtown St. Paul. It was reasonable,
therefore, for an officer to believe that the group, as a whole, was committing one or
more offenses under state law, including third degree riot and unlawful assembly. See
Minn. Stat. §§ 609.71 subdiv. 3,3 609.705;4 State v. Hipp, 213 N.W.2d 610, 614-15
(Minn. 1973). We thus conclude that the police did not violate the clearly established
rights of sixteen plaintiffs who were both present at the intersection and arrested at
the park. Carr, 587 F.3d at 409-10; cf. Vodak v. City of Chicago, 639 F.3d 738, 745-
46 (7th Cir. 2011) (holding that police who effected a mass arrest of protestors were
not entitled to qualified immunity where the crowd did not try to “break through the
police barrier,” and the circumstances “were not threatening to the safety of the police
or other people”).

     As the officers directed the group west on Shepard Road toward the park, some
new people became intermingled with the people composing the unit at the Shepard-


      3
        “When three or more persons assembled disturb the public peace by an
intentional act or threat of unlawful force or violence to person or property, each
participant therein is guilty of riot third degree . . . .” Minn. Stat. § 609.71 subdiv. 3.
      4
        “When three or more persons assemble, each participant is guilty of unlawful
assembly, which is a misdemeanor, if the assembly is: (1) with intent to commit any
unlawful act by force; or (2) with intent to carry out any purpose in such manner as
will disturb or threaten the public peace; or (3) without unlawful purpose, but the
participants so conduct themselves in a disorderly manner as to disturb or threaten the
public peace.” Minn. Stat. § 609.705.

                                           -8-
Jackson intersection, and some of these additional persons were ultimately detained
or arrested at the park. Under the circumstances of this case, however, we conclude
that the officers are entitled to qualified immunity for making these seizures.

       If the officers were to apprehend the offending protestors, they had no practical
alternative but to move the offenders west on Shepard Road to the park to make an
arrest. When confronted by the group at the intersection, the police were faced with
a precarious situation. The group had demonstrated an intent to charge the downtown
area, and members of the group were beginning to obstruct a major roadway that was
designated for emergency vehicles and the First Lady’s motorcade. The video
footage shows that it would have been impractical for Team 36 to detain immediately
the dozens of individuals present at the intersection. The officers were clearly
outnumbered, and that portion of Shepard Road is bordered by the Mississippi River
on one side and a concrete wall on the other. The officers thus reasonably attempted
to move the group to the west.

       The walk from Jackson Street to the park caused the group to expand and
enveloped people who were not present at the intersection. But unlike the officer in
Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006), who directed an indiscriminate
mass arrest of about 400 persons in a park based on the unlawful acts of a small group
of protestors, the police in this case attempted to discern who had been part of the unit
at the intersection and released approximately 200 people, including seven of the
plaintiffs, at the park.

       The police did not violate the clearly established rights of the seven plaintiffs
who were among those released at the park. These people were detained only while
the officers sought to determine who were the members of the group at the
intersection. Cf. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (explaining that
although conduct “was ambiguous and susceptible of an innocent explanation,”
officers were permitted to “detain the individuals to resolve the ambiguity”). They

                                          -9-
were thus held pursuant to an investigative detention that was “reasonably necessary
to achieve the purpose of the temporary seizure.” United States v. Maltais, 403 F.3d
550, 556 (8th Cir. 2005) (internal quotation omitted).

       The nine remaining plaintiffs allege that they were arrested and taken into
custody even though they were not present at the Shepard-Jackson intersection. They
further contend that the group at the intersection numbered no more than thirty to
forty people, and that the officers did not have probable cause (or even arguable
probable cause) to arrest more than this number. The video footage, however, shows
that the group was much larger. Approximately fifty people clustered closely
together directly across from the officers. Another fifty or so people can be seen
standing on either side of the group, along the sidewalk.

       Qualified immunity “protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)
(internal quotation omitted). In the circumstances of this case, we conclude that the
arrest of 160 people in the park (including the nine plaintiffs) was within the range
of objectively reasonable police conduct in light of the law that was clearly
established and the information available to the officers.

        It was reasonable for the officers to believe they could arrest those who were
acting as a unit with the protestors who attempted to break through the police barrier
at the Shepard-Jackson intersection. The videos depict approximately 100 people
present at the intersection. The eleven officers were positioned under an overpass,
making it difficult for them to see how far the crowd extended to the west. From the
officers’ vantage point, it appeared as if “people were continuously arriving from the
west.” The officers, especially without the benefit of the videos, could not have been
sure of the precise number. They did release approximately 200 people at the park
in an attempt to avoid custodial arrests of innocent bystanders. Given the situation
at the intersection, the officers’ allegedly mistaken belief at the park that 160 people

                                         -10-
were part of a unit that had gathered to enter downtown at the Shepard-Jackson
intersection was objectively reasonable. We therefore affirm the district court’s
conclusion that the officers are entitled to qualified immunity for the seizures.

                                         B.

       The plaintiffs also allege that the officers violated the Fourth Amendment’s
prohibition on unreasonable seizures by using excessive force. In evaluating this
claim, we consider whether the officers’ actions were objectively reasonable and
balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). Whether
a particular use of force is unreasonable “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
at 396.

       The record does not show that any of the defendants directly used force against
any of the plaintiffs. The plaintiffs focus on the actions of Sergeant Axel Henry, the
lead sergeant in Team 36. Henry testified in his deposition that when he deployed
various non-lethal munitions at the Shepard-Jackson intersection, his deployment
implicitly authorized officers under his command to do the same. The plaintiffs’
theory apparently is that Henry’s authorization amounted to direct participation by
Henry in the deployment of non-lethal munitions by subordinates. See Otey v.
Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997). As such, they contend that
unreasonable use of non-lethal munitions by Henry or his compliant subordinates
gives rise to Henry’s liability under § 1983.

       We conclude, however, that Henry is entitled to qualified immunity. In our
view, the use of force was reasonable under the Fourth Amendment. At a minimum,
it was not objectively unreasonable for Henry to authorize the force deployed in light

                                        -11-
of clearly established law. The circumstances led officers reasonably to believe that
a growing crowd intended to penetrate a police line and access downtown St. Paul.
Henry’s use and authorization to use non-lethal munitions to direct the crowd away
from the intersection and toward a park where the crowd could be controlled did not
violate clearly established rights.

      The plaintiffs contend that it was unreasonable for the officers to continue to
use force as the crowd moved west on Shepard Road, because the crowd was
“complying with the movement of the officers and posed no threat to the officers.”
The video footage reveals, however, that some people would not leave the roadway
and that some turned east and faced the officers. It was reasonable for the officers to
deploy non-lethal munitions to keep all members of the crowd moving west.

       Some plaintiffs assert that they were directly targeted by officers—one, for
example, testified that an officer sprayed a chemical irritant on his face, neck, ears,
and back. But there is no evidence that Henry authorized this type of force against
a compliant individual. His implicit authorization occurred at the intersection and
involved force deployed against a noncompliant crowd. The plaintiffs have not
identified any defendant who used gratuitous force. The evidence, therefore, does not
support the conclusion that Henry or any other defendant violated clearly established
rights under the Fourth Amendment. The district court properly granted summary
judgment on this claim.

                                          C.

        The plaintiffs’ final claim against the individual officers is that the officers
arrested them in retaliation for exercising their First Amendment rights. “[T]he law
is settled that as a general matter the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman
v. Moore, 547 U.S. 250, 256 (2006). To prevail on a First Amendment retaliation

                                         -12-
claim, the plaintiffs must show that they engaged in protected activity, that the
defendants’ actions caused an injury to the plaintiffs that would chill a person of
ordinary firmness from continuing to engage in the activity, and that a causal
connection exists between the retaliatory animus and the injury. Baribeau v. City of
Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (per curiam); see also Hartman, 547
U.S. at 259. To establish this connection, the plaintiffs must show that they “were
‘singled out’ because of their exercise of constitutional rights.” Baribeau, 596 F.3d
at 481 (quoting Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007)).

       The plaintiffs have not made a submissible First Amendment retaliation claim.
Although the protestors at the Shepard-Jackson intersection were engaged in
protected speech, members of the unit moved toward the police in a threatening
manner and began to block traffic along a major roadway. A reasonable officer could
conclude that this conduct violated Minnesota law and was not protected speech. See
Cross v. Mokwa, 547 F.3d 890, 896 (8th Cir. 2008); see also Minn. Stat. §§ 609.71
subdiv. 3, 609.705. The video footage shows that officers engaged and pursued the
group only after the unlawful conduct. And there is no evidence that the group was
singled out while others similarly situated were not arrested. See Osborne v.
Grussing, 477 F.3d 1002, 1006-07 (8th Cir. 2007). The only reasonable inference
supported by the record is that the group’s unlawful conduct, not the protected
speech, motivated the officers’ actions. See Baribeau, 596 F.3d at 481; Kilpatrick,
499 F.3d at 768-69. The district court was thus correct to grant summary judgment
for the officers on this claim as well.

                                          III.

       Finally, we consider the plaintiffs’ claim against the City. The plaintiffs allege
that City policy authorized the alleged constitutional violations that occurred. They
contend that Neuberger, who commanded approximately 500 officers as the east area
commander, “had final authority over law enforcement decisions made on the streets

                                          -13-
of downtown St. Paul on September 1,” and that the City is therefore liable for his
command decisions. We review the district court’s summary judgment ruling in favor
of the City de novo, viewing the evidence in the light most favorable to the plaintiffs.
Copeland v. Locke, 613 F.3d 875, 879 (8th Cir. 2010).

       A municipality can be liable under § 1983 if an “action pursuant to official
municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). Although a single unconstitutional act may not
always suffice to support a claim of municipal liability, see City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion), “an unconstitutional
governmental policy could be inferred from a single decision taken by the highest
officials responsible for setting policy in that area of the government’s business.”
City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion). In such
a circumstance, “only those municipal officials who have ‘final policymaking
authority’ may by their actions subject the government to § 1983 liability.” Id.
(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality
opinion)); see also Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405-06 (1997).

       Neuberger’s actions are not sufficient to impose liability on the City.
“[W]hether an official had final policymaking authority is a question of state law.”
Pembaur, 475 U.S. at 483 (plurality opinion). The plaintiffs, however, have not
identified any provision of Minnesota or municipal law establishing that Neuberger
had final policymaking authority. The St. Paul Code of Ordinances includes layers
of policymaking authority above Neuberger’s rank. The chief of police, for example,
has “general authority and control over all departmental staff and shall oversee the
proper fulfillment of all tasks and duties assigned to the department.” St. Paul, Minn.,
Code of Ordinances pt. III, § 8.03; see also id. pt. I, § 1.04 (vesting the powers of the
City in the mayor and council). The plaintiffs maintain that Neuberger did not have
to obtain approval from any other official or governmental body before instructing
his subordinates. But that Neuberger had “discretion in the exercise of particular

                                          -14-
functions does not, without more, give rise to municipal liability based on an exercise
of that discretion.” Pembaur, 475 U.S. at 481-82 (plurality opinion); see also
Copeland, 613 F.3d at 882-83. The district court correctly granted summary
judgment in favor of the City.

                                   *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




                                         -15-
