                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2222
                         ___________________________

                               Brian Thomas Hoyland

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

Shawn McMenomy; Henry Cho; Alex Eckstein, individually and in their official capacities

                      lllllllllllllllllllll Defendants - Appellants

                  Ryan Coughlin, individually; City of Rosemount

                             lllllllllllllllllllll Defendants
                                     ____________

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

                              Submitted: March 9, 2017
                               Filed: August 28, 2017
                                   ____________

Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
                        ____________

SHEPHERD, Circuit Judge.

      Brian Hoyland awoke one evening to the sights and sounds of police officers
standing with guns drawn in front of his home. He saw his wife, a handicapped
woman, standing in the driveway with her arms raised in the air. He then heard
someone yell “shoot” or “shooting.” Hoyland quickly turned on the porch light,
opened the front door, stood in his doorway, and screamed at the officers, who stood
30-40 feet away. The officers ordered him back inside. He remained in his doorway
and approximately thirty seconds after he opened the door to his home, an officer
declared him to be under arrest. Officers proceeded to his doorway where Hoyland
was taken into custody and eventually charged with obstructing legal process pursuant
to Minn. Stat. § 609.50, a charge later dismissed for lack of probable cause.

      Hoyland has brought suit against the police officers for violating his First and
Fourth Amendment rights. The officers have asserted the defense of qualified
immunity. The district court1 rejected this defense on both claims. After a careful
review of the facts, we affirm.

                                    I. Background

      “We review a district court’s qualified immunity determination on summary
judgment de novo, viewing the record in the light most favorable to [Hoyland] and
drawing all reasonable inferences in [his] favor.” Gilani v. Matthews, 843 F.3d 342,
347 (8th Cir. 2016) (second alteration in original) (internal quotation marks omitted).
We also “accept[] as true the facts that the district court found were adequately
supported, as well as the facts the district court likely assumed.” Shekleton v.
Eichenberger, 677 F.3d 361, 365 (8th Cir. 2012) (internal quotation marks omitted).

      Rosemount, Minnesota police received reports of drag racing in the early hours
of May 8, 2013. Officers Shawn McMenomy and Alex Eckstein, driving in separate
squad cars, responded to the scene of these reports. As he drove, McMenomy saw a


      1
        The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

                                         -2-
vehicle driving toward him and away from the scene. McMenomy swung a U-turn in
the road and proceeded to follow the car—a Corvette. He had not, as of yet, witnessed
any traffic violations. But he ran the vehicle’s license plate and discovered the
Corvette was registered to Mark Illetschko, who had no outstanding warrants.
Continuing to follow the Corvette, McMenomy observed its tires partially cross the
road’s center dividing line. In response, McMenomy activated his emergency lights,
but the Corvette did not pull over. Instead, the Corvette continued driving and turned
into a residential neighborhood before finally pulling into the driveway of a house (the
home of Brian Hoyland) and stopped. During this “chase,” which lasted about 40
seconds, McMenomy claims the Corvette visibly accelerated in an apparent attempt
to flee. The district court concluded that the vehicle never exceeded 40 miles per hour
as it traveled a distance of one quarter mile from the time McMenomy activated his
lights until reaching Hoyland’s driveway.

       After stopping in the driveway, the driver of the Corvette, Illetschko, began to
exit the vehicle. He was ordered to remain in the vehicle by McMenomy, who had
parked his squad car behind the Corvette. The officer had his service weapon drawn
and pointed at Illetschko. Officer Eckstein now arrived, parked his squad car near
McMenomy’s, and drew his service weapon. McMenomy next ordered Illetschko to
exit the vehicle with his hands up and walk backwards toward the squad cars.
Illetschko obeyed without any resistance. Around this time Officers Henry Cho and
Ryan Coughlin arrived on scene. Coughlin took Illetschko into custody and
handcuffed him. The officers then shifted their attention to the vehicle’s passenger,
Christina Hoyland, and ordered her to exit the vehicle with her hands in the air. The
district court determined that Christina “by-and-large followed the Officers’
commands, but did direct verbal criticism—including profanity—at them in the
process.” One of the messages Christina tried to convey was that she could not walk
backwards as the officers commanded because she suffers paralysis in one of her legs.




                                          -3-
       All of this commotion awoke Brian Hoyland, who had been asleep inside the
house. Out of concern for their safety, Hoyland moved his children to the back of the
house and retrieved a cell phone to record the incident outside. He intended to remain
inside but changed his mind when he believed he heard the officers yell “shoot” or
“shooting.” He proceeded to switch the porch light on, open his front door, and hold
his phone, which was recording, out in front of him.

        Hoyland stood in his doorway, about 30-40 feet away from the officers and
Christina. All four officers on the scene briefly turned their attention to him.
McMenomy and Cho kept their attention on Hoyland while Coughlin and Eckstein
quickly returned their focus to Illetschko and Christina. Within seconds, an officer
shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the
house. Hoyland remained where he stood and began screaming at the officers. He
shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing
this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and
demanded that the officers do their jobs “the right way.” McMenomy again ordered
Hoyland to “stay inside.” Immediately following this command, with Hoyland
remaining in the doorway, “the arrest decision was made” by McMenomy who
shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty
seconds of time elapsed between Hoyland’s emergence from his house into the
doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not
resist, raised his hands and laid down on the ground, following the instructions given
by the officers. He was taken into custody by McMenomy and Cho without incident.

       Meanwhile, Coughlin and Eckstein continued to deal with Illetschko and
Christina. Coughlin was in the process of putting a handcuffed Illetschko in the back
of the squad car when Hoyland first appeared. Coughlin secured Illetschko in the
squad car before he turned his attention to Hoyland. As McMenomy and Cho arrested
Hoyland, Coughlin approached the house and closed the front door that Hoyland had
exited. Coughlin next joined Eckstein, who had remained focused on Christina after

                                         -4-
“very briefly” shifting his attention after Hoyland had first stepped out. Shortly after
Hoyland was secure, Coughlin and Eckstein took Christina into custody without
incident. The entire encounter, from the moment Hoyland opened his door until both
he and Christina were in police custody, lasted no more than two and a half minutes.

       Throughout this encounter, Hoyland never left the area around his front door,
failing to ever come closer than 30-40 feet from the officers. He never told his wife
or Illetschko to disobey the officers’ commands. He never ran away or resisted the
officers as he himself was arrested. Finally, he never physically intervened, and never
attempted to physically intervene, in the arrest of anyone.

        After taking Hoyland into custody, the officers placed him in the back of a
squad car. Eckstein issued Hoyland a citation for obstruction of legal process. He did
so under the instruction of Cho and Coughlin, not because he had seen anything
amounting to obstruction. Eckstein told Hoyland he was being charged with
obstruction. Hoyland, who had served for a time in the military police, admitted he
had made the situation worse for the officers. But Hoyland repeatedly told Eckstein
that he came outside to inform the officers of his wife’s disability.

      Hoyland subsequently challenged the obstruction charge in county court and
argued that the officers lacked probable cause to arrest him. The judge agreed and
dismissed the charge, holding that:

      [Hoyland’s] actions did not constitute the crime of Obstruction of Legal
      Process. It is clear from the video recording obtained from [Hoyland’s]
      cell phone that [Hoyland] exited his residence with the sole intent to
      inform officers his wife was disabled and unable to comply with their
      commands, and to record the incident for possible future use as evidence
      if the officers engaged in any improper conduct. The recording also
      shows that within seconds of [Hoyland’s] exiting the residence, the
      officers were aware the object he held was a camera. The entire
      encounter with [Hoyland] lasted approximately one minute, during

                                          -5-
      which time [Hoyland] consistently attempted to communicate his wife
      was disabled. [Hoyland’s] conduct amounted to nothing more than a
      fleeting interruption of the officers’ performance of their duties without
      any intent to cause such an interruption. Accordingly, there is not
      probable cause to sustain the charge and the charge is dismissed.

       Hoyland subsequently brought an action under 28 U.S.C. § 1983 against
McMenomy, Cho, and Eckstein for violating his First and Fourth Amendment rights.2
He also asserted a state law claim for malicious prosecution against those three
officers. Before the district court, Hoyland moved for partial summary judgment as
to his Fourth Amendment claim. The officers, asserting the defense of qualified
immunity, sought summary judgment on all of the claims made against them.

      The district court denied the officers’ motion as to the First and Fourth
Amendment claims. The court reasoned that genuine issues of material fact were in
dispute, rendering summary judgment inappropriate. The court denied Hoyland’s
motion for the same reason. Lastly, the court dismissed the malicious prosecution
charge. The officers have now appealed the district court’s denial of qualified
immunity on Hoyland’s First and Fourth Amendment claims.

                                    II. Jurisdiction

       As a preliminary matter, we must address Hoyland’s contention that we have
no jurisdiction over the officers’ interlocutory appeal. See Thompson v. Murray, 800
F.3d 979, 982 (8th Cir. 2015) (noting that the first question in an appeal from a denial
of qualified immunity is one of jurisdiction). When a district court issues an order
denying qualified immunity, we can immediately review that order “to the extent that

      2
        Hoyland’s original complaint also included a § 1983 claim against Coughlin
for illegally entering and searching Hoyland’s home in violation of the Fourth
Amendment. By agreement of the parties, that claim was dismissed with prejudice by
the district court and Coughlin, therefore, is no longer a party to this suit.

                                          -6-
it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “While
we cannot review the district court’s determination that material issues of fact remain
for trial on the merits of [Hoyland’s] claims, we can consider the legal question
whether, in view of the facts that the district court deemed sufficiently supported for
summary judgment purposes, the individual defendants’ conduct was objectively
reasonable given their knowledge and the clearly established law.” Waddell v.
Forney, 108 F.3d 889, 890 (8th Cir. 1997).

       Hoyland argues that the officers’ appeal does not raise any questions of law.
Rather, he contends the appeal challenges disputed issues of material facts identified
by the district court, namely that (1) “the parties disagree about whether Hoyland
intended to interfere with the Officers’ performance of their duties” and (2) “the
parties disagree about whether Hoyland’s conduct ‘substantially interfered’ or ‘merely
interrupted’ the Officers in their duties.” Thus, according to Hoyland, we have no
jurisdiction over this appeal.

       Hoyland misunderstands the legal standard. To be sure, an appellate court
cannot maintain jurisdiction over an interlocutory appeal when the legal
reasonableness of an officer’s actions turns on disputed factual questions. See
Thompson, 800 F.3d at 984 (dismissing for lack of jurisdiction when the parties
disputed historical facts). But here we have no historical facts in dispute. The events
of that night were recorded on three cameras located in squad cars and Hoyland’s cell
phone. The question raised on appeal is whether the material facts, viewed in a light
most favorable to Hoyland, show that the officers’ actions were objectively reasonable
given their knowledge and clearly established law. “Our inquiry is a quintessentially
legal one, and we accordingly have jurisdiction to consider defendants’ appeal.”
Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000).




                                         -7-
                            III. Fourth Amendment Claim

       The first issue raised by the officers is the district court’s denial of qualified
immunity on Hoyland’s claim that he was unreasonably seized. The officers contend
that they had arguable probable cause to arrest Hoyland for obstruction because he
interfered with their ability to detain Illetschko and Christina. They also argue that
their fear of ambush provided arguable probable cause to arrest Hoyland.

                                A. Qualified Immunity

       “The determination of whether an officer is entitled to qualified immunity
requires consideration of the ‘objective legal reasonableness’ of the officer’s conduct
in light of the information he possessed at the time of the alleged violation.” Winters
v. Adams, 254 F.3d 758, 766 (8th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982)). “Courts conduct a two-part inquiry to determine whether qualified
immunity protects a government official from liability: (1) whether the facts taken in
a light most favorable to [Hoyland] make out a violation of a constitutional . . . right;
and (2) whether that right was clearly established at the time of the alleged violation.”
Buckley v. Ray, 848 F.3d 855, 863 (8th Cir. 2017). “We have discretion in deciding
which part of the inquiry to address first.” Id. (citing Pearson v. Callahan, 555 U.S.
223, 236 (2009)). It was clearly established in 2013 “that a warrantless arrest,
unsupported by probable cause, violates the Fourth Amendment.” See Baribeau v.
City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (per curiam). Thus, the issue
remaining is whether the officers’ warrantless arrest was constitutional.

       “A warrantless arrest is consistent with the Fourth Amendment if it is supported
by probable cause, and an officer is entitled to qualified immunity if there is at least
arguable probable cause.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013)
(internal quotation marks omitted). Probable cause exists when the totality of the
circumstances at the time of the arrest “are sufficient to lead a reasonable person to

                                          -8-
believe that the defendant has committed or is committing an offense.” Fisher v. Wal-
Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010). Arguable probable cause “is a
mistaken but objectively reasonable belief the suspect committed a criminal offense.”
Dowell v. Lincoln Cnty., 762 F.3d 770, 777 (8th Cir. 2014). The criminal offense
Hoyland was suspected of committing is obstruction of an officer in the performance
of his or her duties. See Minn. Stat. § 609.50, subdiv. 1(2). So the question before
us is whether it was objectively reasonable for the officers to mistakenly believe,
under the totality of the circumstances, that Hoyland was obstructing them in the
performance of their official duties.

                        B. Obstruction Under Minnesota Law

       Minn. Stat. § 609.50, subdiv. 1(2) prohibits anyone from “intentionally . . .
obstruct[ing], resist[ing], or interfer[ing] with a peace officer while the officer is
engaged in the performance of official duties.” The Minnesota Supreme Court has
interpreted this statute narrowly. See State v. Krawsky, 426 N.W.2d 875, 876-78
(Minn. 1988). In Krawsky, the court held that the obstruction statute “is directed
solely at physical acts.” Id. at 877. The court further clarified that “the statute forbids
intentional physical obstruction or interference with a police officer.” Id. Regarding
purely verbal acts, the court stated, “The statute may be used to punish ‘fighting
words’ or any other words that by themselves have the effect of physically obstructing
or interfering with a police officer in the performance of his duties.” Id. (emphasis
added). The court even gave an example: “[T]he statute may be used to punish a
person who runs beside an officer pursuing a felon in a public street shouting and
cursing at the officer if the shouting and cursing physically obstructs the officer’s
pursuit . . . .” Id. Though the court was quick to add that “the statute does not apply
to ordinary verbal criticism directed at a police officer even while the officer is
performing his official duties.” Id. at 878. “[T]he mere act of interrupting an officer,
even intentionally,” does not constitute obstruction. Id.



                                           -9-
       Minnesota courts have further clarified the kind of verbal conduct that may
constitute obstruction. In State v. Occhino, Occhino walked into the Duluth Police
Department where only one officer was manning the front desk. 572 N.W.2d 316,
318 (Minn. Ct. App. 1997). Occhino asked about the status of a criminal case against
him. The officer informed Occhino that the case was closed and there was nothing the
officer could do to help. Occhino persisted with loud remarks and questions about the
prior case. The officer was “extremely busy” with a myriad of tasks, including:
answering nine telephone lines, responding to dispatches from emergency vehicles,
responding to emergency police messages, answering 911 calls, and monitoring fire
alarms for a multitude of government buildings. Id. While Occhino “became very
agitated, . . . continued to speak in a loud voice, . . . and angrily paced back in forth
directly in front of [the officer’s] desk,” the officer was unable to either answer three
ringing telephone lines or respond to a message sent by a police emergency vehicle.
Id. Other phone calls and messages with citizens and police were interrupted by
Occhino’s behavior. Occhino was eventually arrested for obstruction. A jury
concluded that Occhino’s verbal conduct “exceeded ordinary verbal criticism of the
police and rose to the unlawful level in which his words had the effect of physically
interfering with [the officer’s] performance of her official duties,” and the appellate
court affirmed. Id. at 320-21. In another case, the state supreme court held that
intentionally lying to the police, even when it interrupts or lengthens an ongoing
investigation, fails to rise to the level of verbal conduct that has the effect of
physically obstructing police officers. See State v. Tomlin, 622 N.W.2d 546, 549
(Minn. 2001).

                       C. Reasonableness of Hoyland’s Arrest

       We hold that, under Minnesota law, it was not objectively reasonable for these
officers to believe they had probable cause to arrest Hoyland for obstruction. This
case is far removed from the examples of “obstruction” described above. Here,
Hoyland stood in his own lighted doorway, on his own property, some 30-40 feet from

                                          -10-
the officers and his wife. The officers almost immediately saw that he held a camera
and not any kind of weapon in his hands. No more than twenty seconds elapsed from
Hoyland’s first words spoken from his doorway to McMenomy’s shout of “you are
under arrest.” During this short time span Hoyland said the following:

      “You are in my yard.”

      “What is this, a DWI stop, and you guys are doing this? Are you kidding me?”

      “She is handicapped, I am going to sue you.”

      “Get over here and do your jobs the right way.”

      “She doesn’t have a weapon.”

Although Hoyland directed verbal criticism at the officers while conveying a message
that his wife was disabled and could not follow police instructions, “the statute does
not apply to ordinary verbal criticism directed at a police officer.” Krawsky, 426
N.W.2d at 878. Moreover, he did not instruct his wife to resist arrest, and he did not
resist arrest himself.3 Under these circumstances, the belief that Hoyland had
committed the crime of obstruction was not only mistaken, but objectively
unreasonable. See Weiner v. Lappegard, No. CIV.04-630 RHK/JSM, 2005 WL
1155943, at *5 (D. Minn. May 16, 2005) (denying qualified immunity when officers
arrested plaintiff for obstruction after she approached the officers amidst an angry


      3
        The dissent contends there was, at least, probable cause to arrest Hoyland for
resisting arrest pursuant to Minn. Stat. § 609.50(2). This claim has not been made by
the appellees and for good reason as the officers testified that Hoyland did not
physically resist arrest. McMenomy Dep. 70:2-71:15, March 11, 2015, ECF No. 18-2.
Indeed, the dissent cites no record evidence of Hoyland’s resistance after he was
advised that he was under arrest.

                                        -11-
crowd and asked the officers what they were doing and why they were using mace on
the crowd).

       Further, deposition testimony revealed that Hoyland did not interfere in any
way with the detention of Illetschko. Coughlin testified that he was already placing
a handcuffed Illetschko in the back seat of a squad car when Hoyland came out of the
house. Coughlin conceded that nothing Hoyland did obstructed his ability to detain
Illetschko. Regarding Christina, one of the officers—Eckstein—maintained focus on
her at all times other than a brief moment when Hoyland first stepped outside. To be
sure, the officers did not bring Christina into custody until after Hoyland was arrested.
Thus, Hoyland’s actions may have delayed the detention of Christina. “But the
[obstruction] statute cannot be read so broadly as to include any act that merely
reduces the ability of a police officer to successfully apprehend a suspect.” State v.
Morin, 736 N.W.2d 691, 697 (Minn. Ct. App. 2007). Here, the only impact Hoyland
had on the detention of Christina was to delay it by at most a couple of minutes. He
did not physically obstruct the officers or engage in verbal conduct that physically
obstructed the officers.

       Any fear of danger the officers felt due to Hoyland’s presence cannot justify an
arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush
when Hoyland emerged from the house. This fear, according to the officers, made
Hoyland’s arrest reasonable after he refused to go back inside his home. But the
officers are mistaken. However reasonable the command for Hoyland to go back
inside may have been, his refusal to do so did not constitute obstruction. As
Minnesota law makes abundantly clear, obstruction must be either physical
obstruction or verbal conduct, such as fighting words, that has the effect of physically
obstructing officers in the performance of their duties. Nowhere in Minnesota law
does mere physical presence at a distance constitute obstruction. So arresting Hoyland
for obstruction due to his continued presence in his doorway was unreasonable under
state law. Even when we consider his verbal conduct, no reasonable officer could

                                          -12-
construe his shouting as “physically obstructing or interfering” in the officers’
performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was
shouting criticisms at the officers. But “[i]n a democracy, public officials have no
general privilege to avoid publicity and embarrassment by preventing public scrutiny
of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005).
And none of Hoyland’s comments could be reasonably interpreted as rising above
scrutiny to create a threat or a danger to police or to constitute obstruction.4

    The officers are therefore denied qualified immunity for Hoyland’s Fourth
Amendment claim.

                             IV. First Amendment Claim

       The officers next challenge the denial of qualified immunity on Hoyland’s First
Amendment claim. “[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). Under Eighth
Circuit precedent there are four parts to a First Amendment retaliatory arrest claim
brought under § 1983. See Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). The
plaintiff must show: (1) “he engaged in a protected activity;” (2) “the government
official took adverse action against him that would chill a person of ordinary firmness
from continuing in the activity;” (3) “the adverse action was motivated at least in part


      4
       As to whether it was objectively reasonable for the officers to believe that
probable cause existed to seize Hoyland as he stood in his doorway, the dissent
contends that the fact that the state prosecutor resisted dismissal of the charge of
obstructing legal process against Hoyland “is as significant as the decision of the state
judge to dismiss the charge.” No authority is provided for this proposition and,
indeed, it is the lack of neutrality and detachment that disqualifies prosecutors, who
have a “responsibility to law enforcement,” from a role in the ultimate probable cause
determination. See Gerstein v. Pugh, 420 U.S. 103, 116-18 (1975).

                                          -13-
by the exercise of the protected activity;” and (4) “lack of probable cause or arguable
probable cause.” Id. (internal quotation marks omitted).

                                 A. Protected Activity

       The First Amendment “protects a significant amount of verbal criticism and
challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461
(1987). Indeed, “[c]riticism of public officials lies at the very core of speech protected
by the First Amendment.” Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.
2002) (internal quotation marks omitted). When Hoyland emerged from his house,
he loudly criticized the officers’ conduct toward Christina and repeatedly told them
that she was physically disabled. The First Amendment protects Hoyland’s
communications. See Peterson, 754 F.3d at 602 (“[C]riticizing a police officer . . . is
protected speech under the First Amendment.”).

       The officers make two arguments against our conclusion. First, they submit
that the First Amendment does not protect Hoyland’s communications because they
amounted to obstruction of officers in the performance of their official duties. And
obstruction, according to the officers, is not protected activity under the First
Amendment.

        The officers’ first argument fails because Hoyland did not obstruct the officers
in the performance of their official duties. To be sure, the Supreme Court has
recognized that “fighting words” and words that “by their very utterance inflict injury
or tend to incite an immediate breach of the peace” may not be protected speech. See
Lewis v. City of New Orleans, 415 U.S. 130, 133 (1974). But we have held in Part
III of this opinion that Hoyland’s verbal conduct did not constitute obstruction under
Minnesota law. And no one argues that Hoyland’s criticism amounted to anything
resembling “fighting words.”



                                          -14-
       Second, the officers argue that, under Colten v. Kentucky, Hoyland “had no
constitutional right to observe a [felony traffic stop] or to engage the [arresting]
officer[s] in conversation at that time.” See 407 U.S. 104, 109 (1972). Officers
arrested Colten, who was standing on the side of a highway witnessing another
individual receive a traffic ticket, after he had refused several requests to move along.
Id. at 106-07. Colten was convicted of disorderly conduct and then challenged the
constitutionality of the state statute. Id. at 108. The Supreme Court rejected his
challenge, finding that “Colten’s conduct in refusing to move on after being directed
to do so was not, without more, protected by the First Amendment.” Id. at 109. The
Court also noted the state’s legitimate interest to enforce its traffic laws when faced
with a highway crowded with persons and cars and the risk of accident. Id. Here, the
officers argue Colten’s rationale rings even truer during a felony traffic stop at night.

       But the officers’ reliance on Colten is misplaced for three reasons. First, the
location of the traffic stop in Colten—a busy highway—implicated important
concerns of public safety. Here, the arrest took place in a residential area with no
other vehicles or persons around. And Hoyland was not standing on the side of a
highway observing a traffic stop, but rather standing in the doorway of his own home
trying to tell the officers that his wife was handicapped. Second, Colten involved a
direct challenge to a Kentucky statute that criminalized congregating with other
people in a public place while refusing to comply with police orders to disperse. See
id. at 108. The Supreme Court held that the statute passed constitutional muster
because, as the state court had already determined, the statute is violated “only where
there is no bona fide intention to exercise a constitutional right.” Id. at 111. Here,
Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983
claim against the officers for retaliating against him for exercising his First
Amendment rights. Colten, on the other hand, was simply “refusing to move on after
being directed to do so . . . without more.” Id. at 109 (emphasis added). Third, later
Supreme Court cases make it clear that the First Amendment protects verbal criticism
directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of

                                          -15-
individuals verbally to oppose or challenge police action without thereby risking arrest
is one of the principle characteristics by which we distinguish a free nation from a
police state.” Id. at 462-63. Thus Hoyland’s communications were protected
activity.5

                                  B. Chilling Effect

       Next, Hoyland must show that the officers “took adverse action against him that
would chill a person of ordinary firmness from continuing in the activity.” Peterson,
754 F.3d at 602. The officers contend that their commands would not have chilled a
person of ordinary firmness from engaging in protected First Amendment activity
because such an individual would have realized the severity of the situation—officers
with guns drawn—and followed the commands to go back inside the house. But the
officers’ analysis is far too narrow. We must consider not just the order to go back
inside but also the subsequent arrest, because both constitute adverse actions taken
again Hoyland. Circuit precedent shows that receiving multiple parking tickets would
impermissibly chill protected activity. See Garcia v. City of Trenton, 348 F.3d 726,
729 (8th Cir. 2003). So there can be little doubt that “being arrested for exercising the
right to free speech would chill a person of ordinary firmness from exercising that
right in the future.” Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808, 826 (E.D.
Mo. 2016) (citing Peterson, 754 F.3d at 602).




      5
        The officers had argued to the district court that their orders to Hoyland to go
back inside the house were reasonable time, place, and manner restrictions, thereby
converting Hoyland’s continued verbal conduct into unprotected speech. The district
court analyzed this argument and ruled that the officers’ orders were not reasonable
restrictions, and the officers have not challenged this finding on appeal.

                                          -16-
                                 C. Causal Connection

       Under the third part of the test, “a plaintiff must show that the retaliatory motive
[of the officers] was a ‘substantial factor’ or ‘but-for cause’ of the adverse action.”
Peterson, 754 F.3d at 602 (quoting Baribeau, 596 F.3d at 481). “The causal
connection is generally a jury question, but it can provide a basis for summary
judgment when the question is so free from doubt as to justify taking it from the jury.”
Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (internal quotation marks
omitted). So Hoyland must demonstrate that there is, at a minimum, some doubt as
to the causal connection.

      The officers argue that there is no causal connection because they ordered
Hoyland to go back inside the house before he even starting speaking. As further
support they also cite Eckstein’s conversation with Hoyland in the back of the squad
car where Eckstein explained that Hoyland was arrested for failing to follow orders.

        But McMenomy’s deposition testimony clearly shows that the arrest decision
was not made after Hoyland had ignored the initial order to go back inside. It was
only after Hoyland had stood in the doorway shouting criticisms and messages about
his wife’s physical disability that the arrest decision was made. “Temporal proximity
is relevant [even if] not dispositive” in situations like this. Peterson, 754 F.3d at 603
(internal quotation marks omitted). The arrest decision was not made when Hoyland
first disobeyed an order, but only after he had begun exercising his First Amendment
rights.

      True, it is entirely possible that the decision to arrest Hoyland was based on his
refusal to follow orders and not his verbal conduct. After all, the arrest decision was
made immediately after Hoyland refused the second order to go back inside. But what
the record makes clear is that this question is not free from doubt. Summary
judgment, therefore, would be inappropriate. A jury must decide whether Hoyland

                                           -17-
has shown a causal connection between his verbal conduct and the adverse actions
taken against him.

              D. Lack of Probable Cause or Arguable Probable Cause

       As discussed in Part III of this opinion, the officers lacked probable cause or
arguable probable cause to arrest Hoyland. As a result, the officers are hereby denied
qualified immunity for Hoyland’s First Amendment claim.

                                     V. Conclusion

       Police officers have a tough job. They must confront dangerous situations and
make difficult decisions in short time frames. This is why we offer the protection of
qualified immunity—to insulate officers from the constant threat of litigation while
serving and safeguarding their fellow citizens. But to receive that protection, we must
find as a matter of law that the officers acted within the confines of the Constitution.
They must avoid arresting persons without at least arguable probable cause. They
must not take adverse actions against persons for exercising their First Amendment
rights. Looking at the facts of this case, we cannot hold as a matter of law that the
officers acted constitutionally. It is now for a jury to decide. The order of the district
court is affirmed.

COLLOTON, Circuit Judge, dissenting.

       Notably absent from the majority opinion is any mention of the Supreme
Court’s several recent decisions reversing denials of qualified immunity by the courts
of appeals. The Court explained that these opinions were necessary “both because
qualified immunity is important to society as a whole, and because as an immunity
from suit, qualified immunity is effectively lost if a case is erroneously permitted to
go to trial.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal

                                          -18-
quotations and citations omitted). The Court reiterated in these decisions several
principles that govern our analysis here:

      !     “Clearly established law” should not be defined at a “high
            level of generality,” but must be “particularized” to the
            facts of the case. Id. at 552 (quoting Ashcroft v. al-Kidd,
            563 U.S. 731, 742 (2011) and Anderson v. Creighton, 483
            U.S. 635, 640 (1987)).

      !     Especially in the Fourth Amendment context, where it is
            sometimes difficult for a police officer to determine how
            the relevant legal doctrine will apply to the factual situation
            that the officer confronts, it is important to undertake
            qualified immunity analysis “in light of the specific context
            of the case, not as a broad general proposition.” Mullenix
            v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting
            Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
            curiam)).

      !     To deny qualified immunity, “existing precedent must have
            placed the statutory or constitutional question beyond
            debate.” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563
            U.S. at 741).

      !     Qualified immunity protects “all but the plainly
            incompetent or those who knowingly violate the law.”
            Mullenix, 136 S. Ct. at 308 (quoting Malley v. Briggs, 475
            U.S. 335, 341 (1986)).




                                         -19-
Applying these standards to the specific situation before us, I believe that the police
officers are entitled to qualified immunity.

        When Brian Hoyland first injected himself into the scene involved here, police
officers were in the process of arresting a man and a woman in the middle of the night.
The arrestees, suspected of illegal drag racing on city streets, had fled from officers
after police attempted to make a traffic stop. The suspect vehicle ultimately came to
rest at an unknown residence.

       One officer testified that he feared a possible ambush. This was not a frivolous
concern. We live in an era when a police officer in Clinton, Missouri, is shot and
killed during a routine traffic stop; officers in central Iowa are murdered while sitting
in their patrol cars on city streets.6 Here, police had handcuffed the male suspect but
not yet secured him in a police vehicle; the female suspect was not yet restrained. The
officers did not know whether the suspect vehicle contained weapons or whether the
second suspect was armed. They had no information about Hoyland or his
relationship to the arrestees. It was an active arrest scene and an unsettled situation.
In that context, it should “[go] without saying that the police may take all reasonable
steps to maintain safety and control. . . . [And] the police may order bystanders to
disperse for reasons related to public safety and order and other legitimate law-
enforcement needs.” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 607
(7th Cir. 2012).




      6
        See Robert A. Cronkleton, et al., Suspect Charged with Murder in Death of
Clinton, Mo., Police Officer; Manhunt on, Kansas City Star (Aug. 7, 2017, 6:41 AM),
http://www.kansascity.com/news/local/crime/article165802862.html; Kathy A.
Bolten, Police ‘Heartbroken’ After Ambush Leaves 2 Des Moines-Area Officers Dead,
Des Moines Register (Nov. 3, 2016, 1:23 PM),
http://www.desmoinesregister.com/story/news/2016/11/02/2-police-officers-killed-
ambush-attacks/93155012/.

                                          -20-
       The material facts of the incident are recorded on three videos and are therefore
undisputed. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). After Hoyland
emerged from the house, he refused seven times to comply with police commands.
When he first appeared, officers gave several commands that he should get in the
house, stay in the house, and get back inside. Hoyland responded by saying, “You are
in my yard. You are in my yard.” An officer repeated that Hoyland should get back
inside. Hoyland then presumed incorrectly that he was witnessing a “DWI stop,” and
questioned that the officers were “doing this?” An officer reiterated for a third time
that Hoyland should get back inside. Hoyland responded by threatening litigation and
giving direction to the officers: “She is handicapped; I’m going to sue you. Get over
here and do your job the right way.” In a fourth command, an officer directed
Hoyland to put his hands in the air; Hoyland responded (without having accompanied
the suspects in the suspect vehicle) that “she doesn’t have a weapon.”

       In a fifth exchange, an officer directed Hoyland three more times to put his
hands up and ultimately told Hoyland that he was under arrest. Hoyland responded
by resisting police authority: “I am not under arrest. I am telling you that my wife is
handicapped.” An officer giving the sixth command told Hoyland to raise his hands;
Hoyland repeated that his wife was handicapped and then asserted twice that he had
no weapons. In the seventh part of the dialogue, an officer informed Hoyland that he
was under arrest, and that he should walk toward the officer. Hoyland replied that he
had children in the house. An officer then told Hoyland that he would be “tased,” and
Hoyland finally complied with the commands.

       Police detained Hoyland on his property for fifty minutes and then released
him. While in a patrol car, Hoyland told one officer that he was a former military
police officer, and that he “would have done the same thing” that the officers did. The
officer informed Hoyland that the arrest scene was “probably one of the most
dangerous situations for us,” to which Hoyland replied that “I made it worse for you.”
Hoyland later sued the officers under 42 U.S.C. § 1983, alleging an arrest without

                                         -21-
probable cause, in violation of the Fourth and Fourteenth Amendments, and an arrest
in retaliation for free speech, in violation of the First and Fourteenth Amendments.

      The officers are entitled to qualified immunity on both claims if they had
“arguable probable cause” to make an arrest. The Fourth Amendment requires
probable cause to arrest, but if police make an objectively reasonable mistake about
the existence of probable cause, then they have “arguable probable cause” and are
immune from suit. Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008). A First
Amendment retaliation claim fails if the police had arguable probable cause to arrest.
Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014).

       The officers contend that there was at least arguable probable cause to arrest
Hoyland for obstructing legal process, in violation of Minnesota Statutes § 609.50,
subd. 1(2). That statute makes it unlawful for anyone intentionally to obstruct, resist,
or interfere with a police officer while the officer is engaged in the performance of his
duties.

       There was arguable probable cause to arrest Hoyland under § 609.50. The most
straightforward cause for arrest was Hoyland’s resistance after police informed him
that he was under arrest. “Minnesota law does not recognize [a] defendant’s asserted
right to resist an unlawful arrest or search.” State v. Wick, 331 N.W.2d 769, 771
(Minn. 1983). The majority focuses on whether the initial decision to arrest Hoyland
was justified by his interference with the ability of the officers to restrain the two
suspects and control the scene of those arrests. But even if the initial determination
was not supported, Hoyland’s refusal to submit to an arrest—declaring “I am not
under arrest,” and refusing to comply with commands—provided arguable probable
cause that he committed a violation. Along those lines, the Minnesota Court of
Appeals recently held that when a police officer attempted to handcuff a citizen “for
his safety” while trying to “sort out [a] situation,” and the citizen resisted the
handcuffing, the officer reasonably believed that he could effect a lawful arrest for

                                          -22-
obstruction of legal process. Scheffler v. McDonough, No. A16-0949, 2017 WL
1549979, at *4 (Minn. Ct. App. May 1, 2017). The statute does not require proof of
a physical act directed at an officer, see State v. Shimota, 875 N.W.2d 363, 373 (Minn.
Ct. App. 2016); State v. Gearin, No. A09-0467, 2009 WL 3078581, at *6 n.2 (Minn.
Ct. App. Sept. 29, 2009), and there is no clearly established Minnesota law that
passive resistance to an arrest is not resistance.

       Viewing the situation more broadly, Hoyland’s repeated argumentative refusals
to comply with police commands at an active arrest scene also gave police at least
arguable probable cause to believe that he violated § 609.50. Although the Minnesota
Supreme Court wrote in response to a vagueness challenge that the statute is directed
at “physically obstructing or interfering” with an officer, State v. Krawsky, 426
N.W.2d 875, 877 (Minn. 1988), the few decisions applying the statute show that it
encompasses violations that do not involve physical contact between an offender and
a police officer. The Krawsky court itself said that the statute may be used to punish
“any . . . words that by themselves have the effect of physically obstructing or
interfering with a police officer in the performance of his duties.” Id. Krawsky gave
one example—running beside an officer who is pursuing a felon and shouting and
cursing at the officer—but that illustration is not exclusive. Loud and repetitive
interruptions of a desk officer, along with four refusals to leave the public area of a
police department, constituted a violation of § 609.50 in State v. Occhino, 572 N.W.2d
316, 320-21 (Minn. Ct. App. 1997). Similarly, a barn owner’s “loud, repetitive, and
intentional interruptions” of officers attempting to issue citations for underage
drinking were sufficient to support a conviction under the statute. State v. Hanson,
No. C3-00-1986, 2001 WL 1117681, at *3-4 (Minn. Ct. App. Sept. 25, 2001).

       We must address qualified immunity “in light of the specific context of the
case,” Mullenix, 136 S. Ct. at 308, yet there is no Minnesota court decision applying
the statute to alleged obstruction by a third party at an active arrest scene. What
constitutes obstruction of an officer may well be different at an active arrest scene

                                         -23-
than in the reception area at police headquarters. Hoyland refused seven times to
comply with commands of police officers. It was reasonable to believe that his
conduct substantially hindered the officers who were attempting to control the scene,
by creating a new security concern and by preventing the officers from focusing their
attention on the two suspects who were apprehended at Hoyland’s residence after
fleeing. Hoyland’s persistence in refusing to comply supported an objectively
reasonable belief in probable cause that he intentionally resisted or interfered. It was
not beyond debate that the statute encompassed the interruptions and refusals directed
at the desk officer in Occhino, and the loud and repetitive interruptions of the officers
issuing citations in Hanson, but did not proscribe Hoyland’s interruptions and
distraction of police officers at an active arrest scene.

       The majority highlights that a Minnesota district judge later granted Hoyland’s
motion to dismiss the criminal charge against him for lack of probable cause. The
state court litigation, however, actually lends credence to the position of the officers
that there was arguable probable cause. Hoyland’s motion to dismiss was resisted by
the State, represented by an assistant city attorney. The court presided over a
“contested omnibus hearing” at which the prosecutor presented evidence and received
permission to file a written response to Hoyland’s memorandum. In other words, even
with 20/20 hindsight not available to the police officers, an independent
prosecutor—ethically bound to refrain from prosecuting a charge that he knows is not
supported by probable cause, Minn. R. Prof’l Conduct 3.8(a)—pursued the charge
against Hoyland for obstructing legal process. On the relevant question
here—whether an objectively reasonable police officer could have believed that there
was probable cause to arrest—the prosecutor’s judgment that the evidence justified
prosecution is as significant as the decision of the state judge to dismiss the charge.
We have said that a prosecutor’s pre-arrest advice that a seizure is permissible “can
show the reasonableness of the action taken,” Frye v. Kan. City Mo. Police Dep’t, 375
F.3d 785, 792 (8th Cir. 2004) (internal quotation omitted), and a prosecutor’s post-



                                          -24-
arrest judgment to press a charge similarly can shed light on whether the officers were
objectively reasonable.

       The majority concludes that it is “now for a jury to decide” whether the officers
“acted constitutionally.” Ante, at 18. Respectfully, this conclusion confuses the roles
of judge and jury. Juries find facts; as the majority acknowledges, “we have no
historical facts in dispute.” Id. at 7. The district court thought there were factual
disputes about whether Hoyland “intended to interfere” with the performance of duties
and whether Hoyland’s conduct “substantially frustrated” the officers. But the
majority does not embrace these questions, and rightfully so. The facts of the incident
are recorded on videotape and are undisputed. What Hoyland intended or whether the
officers were substantially frustrated is not at issue.

       The question is whether a reasonable police officer could have believed there
was probable cause that Hoyland acted with the requisite intent and that his conduct
substantially frustrated or hindered the officers in the performance of their duties.
This is a legal determination for the court. By confirming that there are no disputed
historical facts and concluding on those facts that the police officers violated
Hoyland’s clearly established rights under the Fourth Amendment, the court
effectively grants judgment as a matter of law for Hoyland on that claim.

       Police officers have a tough job. Decisions like this one make it tougher. By
denying qualified immunity on undisputed facts, the majority necessarily concludes
that the officers here were plainly incompetent or knowingly violated the law. In my
view, the limited clearly established law concerning the Minnesota statute does not
justify that conclusion when the analysis is properly particularized to the facts of this
case. I would reverse the order of the district court and direct entry of judgment in
favor of the officers based on qualified immunity.
                        ______________________________



                                          -25-
