Jeremy Rothe-Kushel v. Brent Parsons

J
                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 20-1418
                         ___________________________

                                Jeremy Rothe-Kushel

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

Jewish Community Foundation of Greater Kansas City; Lauren Hoopes, Executive
  Director, Jewish Community Foundation of Greater Kansas City; Joshua Stein,
  Director of Fund Development, Jewish Community Foundation; Kim Rausch,
   Director of Development, Truman Library Institute; Blair Howell Hawkins

                              lllllllllllllllllllllDefendants

                Detective Brent Parsons, In his individual capacity

                        lllllllllllllllllllllDefendant - Appellee

    Michael Satter, In his individual capacity; Detective Michael Curley, In his
   individual capacity; Chief Richard C. Smith, In his official capacity; Leland
 Shurin, In his official capacity as President and a member of the Board of Police
   Commissioners; Nathan F. Garrett, In his official capacity as a member of the
    Board of Police Commissioners; Mark Tolbert, In his official capacity as a
    member of the Board of Police Commissioners; Don Wagner, In his official
  capacity as a member of the Board of Police Commissioners; Mayor Sylvester
“Sly” James, In his official capacity as a member of the Board of Police Commissioners

                              lllllllllllllllllllllDefendants
                                      ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________
                             Submitted: May 18, 2021
                               Filed: May 25, 2021
                                  [Unpublished]
                                  ____________

Before GRUENDER, WOLLMAN, and ERICKSON, Circuit Judges.
                       ____________

PER CURIAM.

       In this 42 U.S.C. § 1983 action, Jeremy Rothe-Kushel appeals the district
court’s1 grant of former Kansas City police officer Brent Parsons’s motion for
summary judgment on Rothe-Kushel’s claims that his arrest violated his rights under
the First and Fourth Amendments, and constituted a false arrest under state law.

       The district court concluded that Parsons, who was hired to provide off-duty
security for a lecture held at the Kansas City Public Library and sponsored in part by
the Jewish Community Foundation of Greater Kansas City, was entitled to qualified
immunity because the arrest of Rothe-Kushel following his participation in a
question-and-answer session at the lecture and his ensuing interactions with security,
on charges of trespass and obstructing or resisting a public safety officer, was
supported by at least arguable probable cause. Having conducted a de novo review
of the record, see Peterson v. Kopp, 

754 F.3d 594

, 598 (8th Cir. 2014), we agree with
the district court that probable cause, or arguable probable cause, supported Rothe-
Kushel’s arrest and thereby defeated his claims, see Nieves v. Bartlett, 

139 S. Ct.
1715

, 1724-25 (2019) (plaintiff’s claim that officers violated his First Amendment
rights by arresting him in retaliation for his speech failed because officers had
probable cause to arrest him); Hoyland v. McMenomy, 

869 F.3d 644

, 652 (8th Cir.


      1
      The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.

                                         -2-
2017) (warrantless arrest is consistent with Fourth Amendment if supported by
probable cause, and officer is entitled to qualified immunity if there is at least
arguable probable cause, which is mistaken but objectively reasonable belief that
suspect committed criminal offense); Blue v. Harrah’s North Kansas City, LLC, 

170
S.W.3d 466

, 479 (Mo. Ct. App. 2005) (police officer who has probable cause to
believe that suspect has committed a crime is not liable for state law tort of false
arrest simply because suspect is later proven innocent or the charges are dismissed).

       We also decline to reach an argument Rothe-Kushel raises for the first time on
appeal, see Shelton v. ContiGroup Cos., 

285 F.3d 640

, 643 (8th Cir. 2002), but
nonetheless note the absence of objective evidence in the record to support his
contention that police officers generally refrain from arresting persons under similar
circumstances, within the narrow exception to the doctrine that probable cause defeats
a retaliatory arrest, as set forth in Nieves, 

139 S. Ct. at 1727

.

      The judgment is affirmed. See 8th Cir. R. 47B.
                     ______________________________




                                         -3-

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