On a Saturday night in May 2021, Mason Murphy was walking on the shoulder of a rural road in Sunrise Beach, a small Missouri town, when he was accosted by a local police officer, Michael Schmitt, who asked him to identify himself. Since Murphy was minding his own business and was not, as far as he knew, doing anything illegal, he did not think he should have to comply with that request. Murphy's objection resulted in a nine-minute argument with Schmitt, who ultimately handcuffed Murphy and took him to jail, where he was detained for two hours.
Why? Schmitt had trouble answering that question. "I didn't want him walking down my highway," he told another officer at the jail. Schmitt also suggested that Murphy was being held "for being an asshole" and that he would stay in jail "until he decides to play nice." Even after consulting with a senior officer and a local prosecutor, Schmitt could not come up with a valid reason to arrest Murphy, who was released without being charged.
Five months later, Murphy sued Schmitt for violating his First Amendment rights by arresting him in retaliation for constitutionally protected speech. A federal judge dismissed Murphy's claim, and last year the U.S. Court of Appeals for the 8th Circuit upheld that decision. But this week the U.S. Supreme Court revived Murphy's lawsuit, remanding the case for further consideration in light of Gonzalez v. Trevino, a June 2024 decision that made it easier for victims of retaliatory arrests to make a case for compensation.
"This decision is a huge step forward, not just for Mason Murphy, but for all Americans who have been retaliated against by government officials for their speech," said Marie Miller, an attorney at the Institute for Justice, which filed Murphy's Supreme Court petition. "Our work is building lasting precedent, making it easier for people to hold officials accountable when their rights are violated. We will continue fighting until all Americans are protected against government retaliation."
Although Schmitt evidently did not realize it at the time, Murphy had broken the law: He had violated Section 300.405.2 of Missouri's statutes, which says: "Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction." Murphy was walking on the right side of the road when Schmitt approached him—a fact to which the officer alluded during the initial encounter, most of which was recorded by Schmitt's body camera.
"Have I committed a crime?" Murphy asked. "You're walking down my highway in the dark," Schmitt replied. "You're walking on the wrong side of the road. You're about to get hit. I have a feeling you're drinking." In a radio call, Schmitt likewise described Murphy as an "intoxicated subject" who was "refusing to identify." Because "I have a feeling that you are drinking," Schmitt told Murphy, "I wanna make sure you're safe."
Murphy, who was 20 at the time, said he did not drink. Contrary to Schmitt's repeated claims, Murphy was completely sober, and there is nothing inherently illegal about walking along a highway in the dark. "Walking on the wrong side of the road," by contrast, is illegal in Missouri. But it seems clear Schmitt did not know that, because otherwise he would not have struggled to come up with a charge he could file against Murphy after arresting him. Schmitt's apparent ignorance of the law reinforces Murphy's argument that his real offense was challenging a cop's authority.
Schmitt's comments before and after the arrest reinforce that impression. "I'm not trying to charge you," he told Murphy. "I'm just trying to figure out who you are." But if Murphy persisted in refusing to give Schmitt his name, the officer said, "I'll take you on down to jail and run your fingerprints. We can do it the hard way or the easy way."
Murphy, who was dismayed and frustrated but remained calm, thought that threat was legally unjustified. "I haven't done a thing wrong," he said. "I don't know why police think they can do this." Schmitt's response: "Because we can."
Murphy did not think that explanation was adequate. "I'm gonna take you to jail," Schmitt warned. "You're the one making it hard on yourself."
When Murphy said "that's not lawful," Schmitt insisted that it was, because "you are walking down the highway in the dark." Murphy was unpersuaded, saying Schmitt had the authority to demand identification only "if I have committed a crime or if you suspect me to have committed a crime." Schmitt said he was "tired of arguing with you."
This continued for a while. Schmitt kept insisting that Murphy was drunk, which Murphy kept (accurately) denying. Schmitt kept insisting that Murphy was legally obligated to give his name, an assertion that Murphy continued to question.
"I don't appreciate you giving me grief," Schmitt said. "I'm just trying to do my job." Murphy disagreed: "I'm not giving you grief. You're giving me grief."
Eventually, Schmitt delivered on his threat. But even as he was handcuffing Murphy, he still had not answered the question that Murphy had repeatedly asked: "What crime have I committed?"
After the arrest, the argument became more heated. "You both are fucking idiots," Murphy told Schmitt and a Laurie, Missouri, officer who had responded to his request for assistance. "Dumb as shit." Schmitt told him to "shut the fuck up."
Schmitt was still trying to figure out exactly why he was arresting Murphy. "What's my charges?" he asked the other officer. "Refusal to identify?" Maybe, the other cop said, assuming Schmitt could "articulate that you had a reason to deal with him." Or the charge "could be disobeying a lawful order," he suggested. "You can figure it out." But Schmitt never did.
During the ride to the county jail, Murphy's Supreme Court petition notes, he "continued to orally contest the lawfulness of Schmitt's actions. He called Schmitt names and criticized and insulted him, including for not wearing a seat belt. But Murphy was not violent. Schmitt argued with Murphy and called him degrading names, too. In short, both men were rude and abrasive in their comments to each other."
After 25 minutes, Schmitt and Murphy arrived at the county jail. Schmitt called Scott Craig, a senior officer who is now Sunrise Beach's police chief, and explained that Murphy had been walking along the highway and was "refusing to identify himself." He asked what he could charge Murphy with. "I don't know," Craig replied, suggesting that Schmitt consult the on-call prosecutor, because unless Murphy was drunk "there's really not anything" and "that's gonna be a tricky one."
After that conversation, the petition says, Craig "took Murphy into a room at the jail, where they joined at least three other officers, including the jail supervisor, Officer Jerry Pedigo. Murphy again asked what crime he had committed. The officers did not tell him. Murphy argued with the officers about Schmitt's demand that he identify himself and continued to question why he was at the jail. Pedigo told Murphy, 'In here you're not going to run your mouth to me, 'cuz I'll just as soon punch you in the face and put you in that chair.' Murphy asked Pedigo if he would really punch him in the face. Pedigo confirmed, 'Absolutely. If you keep running your mouth to me.'"
After Murphy was locked in a cell, according to the petition, "Schmitt told Pedigo, 'I'm going to talk to the PA [Prosecuting Attorney], see what I can get on him.' Officers called Murphy more degrading names and learned his name from a credit card in his wallet. Rather than release Murphy upon learning his identity, Schmitt said, 'He can still sit here for being an asshole.'"
Schmitt "later made a phone call for a record check on Murphy and said, 'Please let there be a warrant.' When the record came back clean, Schmitt said, 'Damn.' He said that Murphy would be on a 12-hour hold 'until he decides to play nice,' that Murphy 'was just all full of insults and rude things to say all the way down here,' and that 'I didn't want him walking down my highway.'"
Pedigo was later fired for threatening Murphy. After reviewing video of the interactions at the jail, Camden County Sheriff Tony Helms said he was outraged by what he saw. "It was wrong," Helms told a local newspaper the month after the incident. "I was furious. We strive so hard and all it takes is one person—one person not following policies and procedures, one person threatening to do something like this to make all of us look bad. Just like any profession, there are good cops and there are bad cops. I can't make any excuses for the type of behavior seen in the video. It was unacceptable, and I apologize to the victim and to the people of Camden County."
Whether Murphy will get more than that apology depends on what happens now that the Supreme Court has sent his case back to the 8th Circuit. Five years ago in Nieves v. Bartlett, the Court held that an arrest can violate the First Amendment even if it was based on probable cause, provided the claimant can present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." Last June in Gonzalez v. Trevino, the Court said that showing does not require "very specific comparator evidence" indicating that "identifiable people" engaged in similar conduct but were not arrested.
Murphy conceded that Schmitt had probable cause to arrest him for walking on the wrong side of the highway, although Schmitt never filed that charge. But Murphy argued that "walking on the wrong side of the road occurs all the time on the highways with wide shoulders, and the police rarely, if ever, arrest a person for walking on the wrong side of the road." His lawyers said the fact that the police nevertheless arrested Murphy, "who just ha[d] been protesting police conduct," suggested that decision was retaliatory. They added that "reasonable opportunity for further investigation or discovery will show that no one else in recent memory has been detained or arrested…in either Sunrise Beach or Camden County for walking on the wrong side of the road."
What happened to Murphy is strikingly similar to a scenario that Chief Justice John Roberts described in Nieves. "At many intersections," Roberts wrote, "jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."
An 8th Circuit panel nevertheless concluded that Murphy had not supplied sufficient evidence that he was treated differently from other pedestrians who walk on the wrong side of the road. Although "jaywalking and walking on the wrong side of the road
are similar," the majority said, "the present allegations do not show violations of §300.405 are so common as 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 majority disregarded Schmitt's recorded statements at the jail, because the Supreme Court "has been clear" that "[a] particular officer's state of mind is simply 'irrelevant'" and "provides 'no basis for invalidating an arrest.'"
Writing in dissent, Judge L. Steven Grasz said Murphy "plausibly asserted that the Sunrise Beach Police Department does not regularly enforce this law." He noted that
"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 Murphy's possession before discovery."
Unlike the majority, Grasz thought what happened at the jail was relevant to Murphy's 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," he wrote. "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."
Under Gonzalez, Murphy has a shot at proving his claim even if he can't identify specific individuals who were not handcuffed and taken to jail for walking on the wrong side of the road. If discovery is allowed, he should be able to demonstrate that such arrests "rarely, if ever," happen, which would support his argument that he was singled out for punishment because Schmitt did not like his attitude.
Murphy could have avoided arrest if he had simply complied with Schmitt's demand that he identify himself. Instead, he asserted his rights as he understood them, insisting that Schmitt legally justify his inquiry. That clearly annoyed Schmitt, who expected meek compliance instead of an argument. But arguing with a police officer is not a crime, and now Murphy has a chance to vindicate the right to question authority.
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