                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2876
                                    ___________

Robin C. McDermott,                          *
                                             *
             Appellant,                      *
                                             *
      v.                                     *
                                             *
Thomas Dean Royal, In their individual       *
and official capacities as police officers   *
for the City of Springfield; Darren          *
Whisnant, In their individual and            *
official capacities as police officers       *   Appeal from the United States
for the City of Springfield; Doug            *   District Court for the
Wilson, In their individual and official     *   Western District of Missouri.
capacities as police officers for the        *      [UNPUBLISHED]
City of Springfield; Brian Phillips, In      *
their individual and official capacities     *
as police officers for the City of           *
Springfield; John A Smith, In their          *
individual and official capacities as        *
police officers for the City of              *
Springfield; Mike Wray, In their             *
individual and official capacities as        *
police officers for the City of              *
Springfield; Lynn Rowe, In his               *
individual capacity as Chief of Police       *
for the City of Springfield; Ron             *
Dirickson, In his individual capacity as     *
Assistance City Attorney; City of            *
Springfield, A municipal corporation of      *
the State of Missouri,                       *
                                             *
             Appellees.                      *
                                    ___________

                              Submitted: September 28, 2006
                                 Filed: January 11, 2007
                                  ___________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

       Robin C. McDermott appeals the district court’s adverse grant of judgment
following an evidentiary hearing in her 42 U.S.C. § 1983 lawsuit. McDermott
brought an action for damages against the City of Springfield, Missouri, and some of
its police officers and officials. See McDermott v. Royal, 123 Fed. Appx. 241 (8th
Cir. 2004) (unpublished per curiam). She claimed violations of the First, Fourth, and
Fourteenth Amendments, and asserted pendent state law claims, based on allegations
related to her arrest and prosecution for obstructing officers who arrived at her
residence to arrest her son for driving while intoxicated. See id. at 242. The district
court granted summary judgment to defendants, but we remanded for further
proceedings because McDermott had “raised a viable (if not ultimately successful)
claim that her First Amendment rights were violated insofar as she was arrested,
charged, and prosecuted for the mere verbal harassment of the Defendant police
officers.” Further, McDermott’s factual allegations were sufficient to raise a claim
that the municipal ordinance under which she was prosecuted (but ultimately
acquitted) violated the First Amendment. See id. at 242-43.

       On remand the district court scheduled an evidentiary hearing over
McDermott’s protests that her complaint had included a request for a jury trial.
Following the hearing, the district court granted judgment to defendants, concluding
that this was not a case of a suspect being detained for simply shouting profanities at
an officer; rather McDermott’s verbal harassment caused Caesar, a dog trained to


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detect narcotics, to be distracted from his duty--assisting one of the police officer
defendants in searching the truck that McDermott’s son had been driving, which was
parked on McDermott’s property--and thus interfered with the search. The court
concluded that the First Amendment did not give McDermott the right to obstruct an
officer from performing his duty and to jeopardize the safety of others by agitating a
police dog.

       We agree with McDermott that the district court violated her right to a jury trial.
See Mathieu v. Gopher News Co., 273 F.3d 769, 776 (8th Cir. 2001) (Seventh
Amendment preserves right to jury trial for civil litigants). Further, we cannot say the
error is harmless, which would require us to find that the district court could have
entered a directed verdict for defendants. See King v. Univ. v. Minnesota, 774 F.2d
224, 229 (8th Cir. 1985). The record does not support judgment as a matter of law if
McDermott’s version of the events is accepted as true--or for that matter, even if
defendants’ version of the facts is accepted as true.

       Specifically, in City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme
Court clarified that the First Amendment protects verbal criticism and challenge,
including profanity, directed to police officers unless the speech consists of “fighting
words,” namely, words that themselves inflict injury or incite immediate breach of the
peace. See id. at 461-63 (freedom verbally to challenge police action without risking
arrest is one of principal characteristics by which free nation is distinguished from
police state); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1991) (fighting
words are words likely to cause average addressee to fight). Here, defendants adduced
testimony that McDermott waved her arms and yelled profanities at the officers to
stop the search, and that Caesar became agitated. Nevertheless, McDermott remained
on her porch thirty feet from the truck being searched, she did not threaten the officers
or attempt to approach them, nor did she physically interfere with the search. We
cannot say that McDermott’s conduct amounted to fighting words. Cf. Buffkins, 922
F.2d at 472 (officers did not have probable cause to arrest defendant for using fighting


                                           -3-
words, as there was no evidence that speech, e.g., calling officer “asshole,” was
incitement to immediate lawless actions, defendant did not become violent or threaten
violence, and nobody outside interview room heard her comments); Duran v. City of
Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (police may resent having obscene
gestures and words directed at them, but they may not punish individuals for such
disgraceful conduct as it is lawful and protected by First Amendment). The state-law
cases upon which the district court relied are not apposite. In one case, the defendant
resisted being taken into custody. See State v. Winkelmann, 776 S.W.2d 44, 44 (Mo.
Ct. App. 1989) (defendant stated he was not going to be taken into custody, and then
pushed past officers, got in his car, and with both officers holding onto two open
doors, drove forward). In the other case, the defendant acted far more belligerently
than McDermott, and more important, that case pre-dated City of Houston. See Tillett
v. State, 637 P.2d 261, 263 (Wyo. 1981) (defendant yelled at first officer who
requested his driver’s license, which he at first refused to produce, he hopped onto
hood of patrol car, he called second officer names and made threatening gestures
toward him, and he refused two requests to return to his car).

       Finally, appellees’ reliance on Caesar’s reactions to McDermott is misplaced.
We have compared a properly trained police dog to other law enforcement tools, see
Kuha v. City of Minnetonka, 365 F.3d 590, 597-98 (8th Cir. 2003), but we fail to see
how the presence of a law enforcement tool--here, an unleashed police dog outside a
patrol car--would cause McDermott’s conduct to amount to fighting words.

      The district court did not address the constitutionality of the ordinance under
which McDermott was arrested and charged, and contrary to appellees’ assertion,
McDermott did raise this as an issue below. We conclude that the district court should
address this issue in the first instance. See Editek, Inc. v. Morgan Capital, L.L.C., 150




                                          -4-
F.3d 830, 834-35 (8th Cir. 1998) (declining to address issue not resolved by district
court).1

       Accordingly, we reverse and remand for further proceedings consistent with
this opinion.
                             ___________________




      1
        McDermott argues on appeal that the district court was biased, but the record
does not show judicial bias, and she did not seek recusal. Cf. 28 U.S.C. § 144
(requiring reassignment if party files timely and sufficient affidavit stating judge has
personal bias or prejudice against him or in favor of adverse party); 28 U.S.C. § 455
(judge must disqualify himself if partiality might be questioned; listing
circumstances); Lefkowitz v. City-Equity Group, Inc., 146 F.3d 609, 611-12 (8th Cir.
1998) (recusal motion based solely on previous adverse rulings properly denied). We
also reject any attempt by McDermott to renew the Fourth and Fourteenth Amendment
claims disposed of in the first appeal. See United States v. Vertac Chem. Corp., 453
F.3d 1031, 1047 (8th Cir. 2006) (on remand, every question before appeals court and
disposed of by its decree is finally settled and determined).




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