Whether the First Amendment protects individuals from government retaliation for wearing identifying apparel as legal observers and for unobtrusively observing and recording police conduct, and whether such protections were clearly established at the time of the alleged violation for purposes of qualified immunity under 42 U.S.C. Section 1983

No question identified. : To the Honorable Brett Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice to the United States Court of Appeals for the Eighth Circuit: Pursuant to Supreme Court Rules 13.5, 22, and 30.3, Applicants Sarah Molina and Christina Vogel respectfully move for an extension of time of 45 days, up to and including Thursday September 7, 2023, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. 1. Applicants Sarah Molina and Christina Vogel and their counsel respectfully request additional time to file a petition for a writ of certiorari in Molina v. City of St. Louis, 59 F.4th 334 (8th Cir. 2023) (No. 21-1830). (Attached hereto as Exhibit A.) The court of appeals issued its judgment on February 2, 2023. A divided Eighth Circuit Court of Appeals denied rehearing en banc on April 24, 2023, 65 F.4th 994 (8th Cir. 2023). (Attached hereto as Exhibit B.) Unless extended, the time within which to file a petition for a writ of certiorari will expire on July 24, 2023. This application is timely because it is filed more than 10 days before the petition is due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. Section 1254(1). 2. This case presents substantial and important questions of federal law on which the Courts of Appeals are divided. Ms. Molina and Ms. Vogel brought First Amendment retaliation claims under 42 U.S.C. Section 1983 after officers in an armored police vehicle shot tear gas at them near the scene of a 2015 protest, which they had attended as legal observers with the National Lawyers Guild. As relevant here, their retaliation claims were rooted in two activities subject to First Amendment protection—wearing bright green hats proclaiming that they were “National Lawyers Guild legal observers,” and unobtrusively observing and recording police conduct in public from a distance. A split panel of the Eighth Circuit dismissed both arguments on summary judgment, holding the officers were entitled to qualified immunity because prior circuit precedents did not clearly establish that either of the plaintiffs’ activities was protected by the First Amendment. 3. The forthcoming Petition will ask this Court to decide: (1) whether wearing a hat identifying one as a “National Lawyers Guild legal observer” is protected speech under the First Amendment, or as the panel reasoned, unprotected (and subject to qualified immunity in any event) because it was not clearly “pro-protest”; (2) whether individuals possess a First Amendment right to unobtrusively observe and record police conduct from a distance, and if so whether such a right was clearly established at the time of the events that gave rise to this litigation; and (3) whether historical evidence requires this Court to overrule its precedents affording officers qualified immunity from Section 1983 suits in these circumstances. 4. “[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). To make outa First Amendment retaliation claim under Section 1983, plaintiffs must establish that they exercised constitutionally protected First Amendment rights and, as a result, suffered some adverse action that “nonretaliatory grounds” were “insufficient” to provoke. Hartman v. Moore, 547 U.S. 250, 256 (2006). Under this Court’s precedents, government officials are entitled to qualified immunity from Section 1983 claims if they violated the Constitution in a manner that was not “clearly established” as illegal at the time of the infraction. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, the panel held the plaintiffs’ Section 1983 claims could not defeat qualified immunity in two salient respects. First, it held