United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-1726
                        ___________________________

                                  Mason Murphy

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

               Michael Schmitt, Officer, in his individual capacity

                       lllllllllllllllllllllDefendant - Appellee

  Jerry Pedigo, Corporal, in his individual capacity and in his official capacity;
                            Camden County, Missouri

                            lllllllllllllllllllllDefendants
                                    ____________

                    Appeal from United States District Court
              for the Western District of Missouri - Jefferson City
                                ____________

                           Submitted: January 11, 2023
                            Filed: September 6, 2023
                                 [Unpublished]
                                 ____________

Before GRASZ, MELLOY, and KOBES, Circuit Judges.
                           ____________

PER CURIAM.
       Officer Michael Schmitt stopped Mason Murphy while Murphy was walking
on the wrong side of a rural road. Murphy refused to identify himself, and the two
men argued for a few minutes before Schmitt arrested Murphy. Murphy sued Schmitt
for First Amendment retaliation. The district court1 granted Schmitt’s motion to
dismiss based on qualified immunity. We affirm.

                                         I.

       Schmitt was patrolling a rural road when he saw Murphy walking along the
right side of the road with traffic. A Missouri statute requires pedestrians to “walk
only on the left side of the roadway or its shoulder facing traffic which may approach
from the opposite direction.” 

. Schmitt stopped his car,
approached Murphy, and asked Murphy to identify himself. Murphy refused to
identify himself, and Schmitt put Murphy in handcuffs after nine minutes of
argument. Murphy asked why Schmitt arrested him, and Schmitt refused to answer.
On the drive to the sheriff’s department, Murphy again asked Schmitt why he was
being arrested. Schmitt responded that the arrest was for “failure to identify.” Once
at the station, Schmitt can be heard making a call to an unknown individual and
saying he “saw the dip shit walking down the highway and [he] would not identify
himself.” Schmitt then asked the unknown individual: “What can I charge him with?”
Officers eventually identified Murphy by a credit card he was carrying. Officers
confirmed Murphy had no outstanding warrants and released him.2 Murphy was in
the jail cell for approximately two hours.

    Murphy asserts he was arrested in retaliation for exercising his First
Amendment right to argue with police. Murphy filed a suit alleging unlawful

      1
         The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
       2
         Schmitt’s equipment captured interactions between Murphy and Schmitt from
the time of Schmitt’s initial approach to the time of Murphy’s eventual release.

                                         -2-
detention and First Amendment retaliation. The district court granted Schmitt’s
motion to dismiss based on qualified immunity. The parties agree Schmitt had
probable cause to stop Murphy because Murphy was in violation of Missouri Revised
Statute § 300.405. Murphy appeals the dismissal of the First Amendment retaliation
claim.

                                           II.


      We review the grant of a motion to dismiss based on qualified immunity de
novo. Carter v. Huterson, 

 (8th Cir. 2016). To survive a motion
to dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 

 (2007).

        A First Amendment retaliation claim has three elements: “(1) [the plaintiff]
engaged in a protected activity, (2) the government official took adverse action
against [the plaintiff] that would chill a person of ordinary firmness from continuing
in the activity, and (3) the adverse action was motivated at least in part by the exercise
of the protected activity.” Greenman v. Jessen, 

 (8th Cir. 2015)
(citations omitted). In First Amendment retaliation cases, “probable cause should
generally defeat a retaliatory arrest claim[.]” Nieves v. Bartlett, 

(2019). The Supreme Court arguably reserved one “narrow qualification” to the
general rule: “the no-probable-cause requirement should not apply when a plaintiff
presents objective evidence that he was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected speech had not been.” 

(discussing but not applying such an exception). Evidence as to the exception allows
“an objective inquiry that avoids the significant problems that would arise from
reviewing police conduct under a purely subjective standard. Because this inquiry
is objective, the statements and motivations of the particular arresting officer are
‘irrelevant’ at this stage.” 

 (citation omitted).


                                           -3-
       The parties agree Schmitt had probable cause to arrest Murphy because
Murphy was in violation of Missouri Revised Statute § 300.405. Murphy argues the
facts in this case fit into the possible Nieves exception because, like the hypothetical
in Nieves, this is a situation where “officers have probable cause to make arrests, but
typically exercise their discretion not to do so.” Id. But here, Murphy has not
pleaded facts sufficient to demonstrate a “facial plausibility” that police commonly
see violations of § 300.405 on similar roads and fail to make arrests. Ashcroft v.
Iqbal, 

 (2009).

        The Supreme Court in Nieves gave an example of an individual who is arrested
for jaywalking in an intersection where “jaywalking is endemic but rarely results in
arrest” while the individual is “vocally complaining about police conduct[.]” Nieves

. Murphy relies heavily on the similarities between jaywalking and
walking on the wrong side of the road to prove his point. While the crimes of
jaywalking and walking on the wrong side of the road are similar, the totality of the
circumstances between the example given in Nieves and the facts of this case differ.
The hypothetical given by the Supreme Court specifies an arrest for jaywalking at an
intersection where jaywalking is “endemic.” Murphy’s assertion that “[a] reasonable
opportunity for further investigation or discovery will show that no one else in recent
memory has been detained or arrested by any law enforcement officers . . . for
walking on the wrong side of the road” does little to show officers typically witness
violations of § 300.405 and exercise their discretion not to arrest. Murphy also
asserts that “[w]alking on the wrong side of the road occurs all the time on the
highways with wide shoulders” and the situation was one “where officers have
probable cause to make arrests, but typically exercise their discretion not to.” These
are “threadbare recitals of a cause of action’s elements, supported by mere conclusory
statements” that “are not entitled to the assumption of truth.” Iqbal, 556 U.S. at
663–4. To “determin[e] whether a complaint states a plausible claim[,]” we “draw
on . . . experience and common sense.” Id. As a matter of experience and common
sense the present allegations do not show violations of § 300.405 are so common as

                                          -4-
to be “endemic” or are so frequently observed as to give rise to a “reasonable
inference” that officers “typically exercise their discretion” not to arrest.

       The above notwithstanding, Murphy argues the subjective intent of Officer
Schmitt is so apparent as to require a finding of retaliation. We disagree. The
Supreme Court has been clear that “[a] particular officer’s state of mind is simply
‘irrelevant,’ and it provides ‘no basis for invalidating an arrest.’” Nieves, 

 (citations omitted). Such a position is necessary as “[p]rotected speech is
often a legitimate consideration when deciding whether to make an arrest.” 

. “To ensure that officers may go about their work without undue apprehension
of being sued, we generally review their conduct under objective standards of
reasonableness.” 

.

                                          III.

      Accordingly, we affirm the judgment of the district court.

GRASZ, Circuit Judge, dissenting.

       The First Amendment prohibits a police officer from retaliating against an
individual for engaging in protected speech. Murphy alleged Officer Schmitt arrested
him because he challenged whether Officer Schmitt could force him to provide his
name. The majority concludes that Murphy failed to state a claim because Officer
Schmitt had probable cause to arrest Murphy for walking on the wrong side of the
road. I respectfully dissent. Because Murphy plausibly asserted that the Sunrise
Beach Police Department does not regularly enforce this law, his First Amendment
retaliation claim survives under the exception adopted by the Supreme Court in
Nieves v. Bartlett, 

 (2019).

      At the motion-to-dismiss stage, deciding whether a complaint asserts a
plausible claim is “a context-specific task.” Ashcroft v. Iqbal, 

, 679

                                          -5-
(2009). Here, Murphy asserted a claim under the First Amendment for retaliatory
arrest. Normally, a retaliatory arrest claim fails as a matter of law if the police officer
had probable cause to arrest the plaintiff. Nieves, 

. But the
Supreme Court has “conclude[d] that the no-probable-cause requirement should not
apply when a plaintiff presents objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in the same sort of protected
speech had not been.” 

 More specifically, “a narrow qualification is warranted for
circumstances where officers have probable cause to make arrests, but typically
exercise their discretion not to do so.” 

 In this context, “an unyielding requirement
to show the absence of probable cause could pose ‘a risk that some police officers
may exploit the arrest power as a means of suppressing speech.’” 

 (quoting
Lozman v. City of Riviera Beach, 

 (2018)).3

       As pled, Murphy was walking on the right side of the road, with traffic, when
Officer Schmitt stopped his police car, exited, and demanded Murphy identify
himself. Murphy declined to provide his name. Instead, he continually asked Officer
Schmitt why he was detained. During the nearly ten minutes before Officer Schmitt
arrested him, Murphy criticized and challenged Officer Schmitt. Officer Schmitt did
not immediately provide a reason for the arrest.



       3
       The Nieves exception is not dicta. When announcing the rule, the Supreme
Court used “conclude[d],” which denotes a holding. Nieves, 

; see
also 

 (Gorsuch, J., concurring in part and dissenting in part) (“I would
hold, as the majority does, that the absence of probable cause . . . is not an absolute
defense.”); 

 (Sotomayor, J., dissenting) (referring to “today’s holding” as
including the exception). The Sixth and Tenth Circuits agree. Hartman v. Thompson,

, 484 n.6 (6th Cir. 2019); Fenn v. City of Truth or Consequences, 

 (10th Cir. 2020). But see DeMartini v. Town of Gulf Stream, 

 (11th Cir. 2019). And when one examines the procedural history of
Nieves, it is clear the “narrow qualification” was necessary to resolve the issue before
the Court.

                                           -6-
       Later events indicate Officer Schmitt was scrambling to justify the arrest.
While in the police car, Officer Schmitt told Murphy he was arrested for “[f]ailure to
identify.” He then changed his tune when he told someone via his police radio that
Murphy was stumbling and walking on the wrong side of the road. Yet Murphy was
not stumbling or acting impaired. When Officer Schmitt arrived at the jail with
Murphy, he made a phone call in which he described Murphy as a “dip shit walking
down the highway” who “would not identify himself” and “ran his mouth off.” He
then asked, “What can I charge him with?” Later, Officer Schmitt falsely claimed
that Murphy was drunk. Officer Schmitt even admitted on multiple occasions that he
did not “smell anything” on Murphy. Despite all this, Officer Schmitt insisted
Murphy “sit here for being an asshole.” Roughly two hours later, Murphy was
released.

       Under these factual allegations, I cannot join the majority’s conclusion that
Murphy failed to state a plausible claim. If the Sunrise Beach Police Department
regularly enforces the Missouri statute prohibiting a person from walking on the
wrong side of the road, one would suspect Officer Schmitt and the other officers he
spoke with would have had little trouble identifying that law as the basis for the
arrest. Instead, viewing the factual allegations in the complaint in a light most
favorable to Murphy, Officer Schmitt arrested Murphy for challenging and criticizing
him before later exploring various legal justifications for the arrest. Indeed, the
allegations of post hoc decision-making indicate pretext, which supports application
of the Nieves exception.

       Consistent with these observations, and in light of Nieves, Murphy pled that
“no one else in recent memory has been detained or arrested by any law enforcement
officers in either Sunrise Beach or Camden County for walking on the wrong side of
the road.” This is critical because most, if not all, of the “objective evidence” about
whether Sunrise Beach police officers commonly see people walking on the wrong
side of the road, but typically exercise their discretion not to arrest, would not be in

                                          -7-
Murphy’s possession before discovery.                See Ahern Rentals, Inc. v.
EquipmentShare.com, Inc., 

, 954 (8th Cir. 2023) (holding “allegations
pled on information and belief are not categorically insufficient to state a claim for
relief where the proof supporting the allegation is within the sole possession and
control of the defendant or where the belief is based on sufficient factual material that
makes the inference of culpability plausible”). Put differently, Murphy never had an
opportunity to discover and present “objective evidence” of First Amendment
retaliation under Nieves because the district court prematurely dismissed Murphy’s
complaint. It largely negates the Supreme Court’s opinion in Nieves to require a
plaintiff to show “objective evidence” of the type of selective enforcement needed
before discovery. Yet the court effectively does so by affirming dismissal here.

      The inquiry, of course, does not end there. Even if a plaintiff asserts a
plausible constitutional claim, the next qualified immunity prong is whether the right
was clearly established at the time of the alleged violation. See Reichle v. Howards,

 (2012). At the Rule 12(b)(6) stage, we ask whether the defendant
has shown he is “entitled to qualified immunity on the face of the complaint.”
Vandevender v. Sass, 

 (8th Cir. 2020) (quoting Kulkay v. Roy, 

 (8th Cir. 2018)).

       As the Supreme Court has explained, “the 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, 

(2006); accord Thurairajah v. City of Fort Smith, 

 (8th Cir. 2019).
“The freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we distinguish
a free nation from a police state.” City of Houston v. Hill, 

, 462–63
(1987). Building on these First Amendment principles, the Supreme Court held that
an individual has the right to be free from a retaliatory arrest, even if supported by
probable cause, when otherwise similarly situated individuals not engaged in the

                                          -8-
same sort of protected speech had not been arrested. Nieves, 

; cf.
Reichle, 566 U.S. at 665–66. At the time Murphy was arrested in 2021, this
constitutional right was clearly established. Nieves, 

; see also
Novak v. City of Parma, 

, 430–31 (6th Cir. 2019) (explaining the right
was not clearly established until Nieves was decided in 2019). Thus, Officer Schmitt
has not shown that he is entitled to qualified immunity on the face of the complaint.
See LeMay v. Mays, 

, 289–90 (8th Cir. 2021). I respectfully dissent.
                        ______________________________




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