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Percy Green, Ii v. Paul Nocciero

April 20, 2012


Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Loken, Circuit Judge.

Submitted: January 12, 2012

Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.

Percy Green II, a well-known civil rights activist, was arrested when he refused to leave a public meeting of the St. Louis School Board. Green was charged with disturbing the peace and resisting arrest, the case was eventually tried, and he was acquitted. He then filed a thirteen-count complaint against more than twenty defendants alleging his arrest and prosecution were part of a wide-ranging conspiracy to violate his civil rights. Defendants are the Board of Police Commissioners, the Chief of Police, and the officers involved in Green's arrest; the City of St. Louis, its Mayor, and two prosecutors; and the St. Louis School Board and two security officers who initially asked Green to leave the meeting.

After extensive discovery, the three groups of defendants separately moved for summary judgment dismissing all claims. In a ninety-page Memorandum and Order, the district court granted summary judgment dismissing all claims except the First *fn1

Amendment and conspiracy claims against the School Board and its security officers, Charles McCrary and Kestner Miller. After further briefing and fact submissions, the court granted these defendants' motion for summary judgment on the remaining claims. Green appeals the dismissal of his 42 U.S.C. §§ 1983 and 1985 individual and conspiracy claims alleging violations of his Fourth and First Amendment rights. Reviewing the grant of summary judgment de novo, Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993), we affirm.

I. Background

We view the facts in the light most favorable to the non-moving party, Green. On November 18, 2003, he joined nearly 500 people in attending the School Board's public meeting in a large school auditorium. A new Board majority had been elected that spring, appointed a controversial new Superintendent, and made decisions unpopular with many parents and teachers. As a result, Board meetings prior to the November 18 meeting had been turbulent and frequently disrupted. Preparing for more of the same, the Board ordered McCrary, Director of Security for the St. Louis Public Schools, to provide additional school security personnel and a contingent of St. Louis police officers at the November 18 meeting. Thus, when the meeting began, several uniformed officers were stationed in the back of the auditorium or in the lobby just outside.

The November 18 meeting was contentious, with a great deal of yelling and disruptive behavior by persons scattered throughout the audience. The presiding officer, Board president Darnetta Clinkscale, repeatedly asked the audience to quiet down and not disrupt the meeting, but oral outbursts continued. Green spoke during the public comment portion of the meeting. As at prior meetings, he criticized the actions of the Board majority. Disruptions continued during the report of the Superintendent that followed. Whether Green was one of those in the audience who made loud, disruptive outbursts is hotly disputed. Security officers McCrary and Miller testified that he did and that they asked him to be quiet. Green denied being asked to be quiet. He testified that he sat quietly after the public comment session, made no outbursts, and was never disruptive. Three audience members sitting near Green submitted affidavits agreeing that he was not loud or disruptive prior to his arrest -- public school teachers William and Mary Beth Purdy and teachers union vice president Byron Clemens.

The events central to this appeal were described in Green's statement of "Uncontroverted Material Facts" as follows:

After Percy Green returned to his seat . . . he was quiet attentive and made no sounds, when School Board Member Darnetta Clinkscale[] made a silent signal to Security Officer Charles McCrary, which signal was seen by Mr. and Mrs. Purdy and Byron Clemens, McCrary in trun [sic] signaled to Security Officer Kestner Miller who approached the quiet Mr. Percy Green, who saw the signals of McCrary and Miller. Miller told Green "You must leave" to which Green replied "I'm a taxpayer" and "why", to which Mr. Miller gave no explanation but signaled to McCrary and McCrary in turn made a "come forward" signal to the back of the room. Immediately two police officers approached Mr. Green, telling Green that he had to leave to which Mr. Green again[] asked "why" and again stated he was a taxpayer, but was never given a reason. Immediately the officer who spoke to him with another officer yanked Green from his seat onto the floor[.] Green in no manner resisted, his hands were limp as he was turned onto his stomach and handcuffed after which he was dragged on the floor at least thirty feet or more out of the auditorium. . . . There were many people who were disruptive at this Nov. 18, 2003 meeting and none of them were arrested, but Green who was not disruptive, contentious or out of order in any manner was the ONLY person arrested.

The parties dispute whether McCrary also asked Green to leave. It is undisputed that Miller told or signaled to McCrary that Green would not leave before McCrary summoned the police officers. McCrary told the police officers Green was disruptive and asked them for assistance in getting Green to leave the meeting.

II. Claims Against the Police Officers & Police Board

Green's Fourth Amended Complaint alleged that police officers violated his Fourth Amendment rights when they arrested him without probable cause. The *fn2 district court granted the officers summary judgment on the ground of qualified immunity, concluding that they reasonably relied on what the School Board's head of security told them, and that Green's "refusal to leave a building after an authorized agent requests him to leave" gave the officers arguable probable cause to arrest him for trespass in ...

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