Submitted: April 6, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON and BENTON, Circuit Judges, and GERRARD,  District
COLLOTON, Circuit Judge.
Calzone sued three state officials to challenge provisions of
Missouri law that authorize roving stops of certain vehicles
for inspection without suspicion. The district court held
that the statutes were not unconstitutional on their face.
The court also ruled that Calzone's as-applied challenge
was not adequately pleaded, because the defendants could not
be sued in their official capacities under 42 U.S.C. §
1983. We affirm the court's conclusion that the statutes
are not facially unconstitutional, but we conclude that the
as-applied challenge against the superintendent should have
been considered on the merits, so we remand for further
2013, Missouri state highway patrol corporal J.L. Keathley
stopped Calzone while he was driving his dump truck on United
States Highway 63 in Phelps County, Missouri. Keathley asked
Calzone if he could inspect the truck, but Calzone refused.
Keathley then explained that Mo. Rev. Stat. § 304.230
authorized him to stop commercial vehicles and inspect them
whether or not he had probable cause. Keathley warned Calzone
that if he did not submit to an inspection, then Keathley
would issue him a citation. Calzone still refused, so
Keathley issued him a citation for failure to submit to a
commercial vehicle inspection. The Phelps County prosecutor
later abandoned the action against Calzone.
then sued the governor of Missouri, the Missouri attorney
general, and the superintendent of the Missouri state highway
patrol under 42 U.S.C. § 1983. He sought a declaratory
judgment that Mo. Rev. Stat. § 304.230.1, .2, and .7 are
unconstitutional on their face and as applied to him. He
asked for a permanent injunction against the enforcement of
these provisions, for one dollar in nominal damages, and for
costs and attorney's fees.
district court granted summary judgment for the officials on
Calzone's facial challenge and granted judgment on the
pleadings for the officials on the as-applied challenge. The
court concluded that the challenged provisions were not
facially unconstitutional, because they could be applied
constitutionally to participants in the closely regulated
commercial trucking industry. The court concluded that
Calzone's as-applied challenge failed because he could
not sue the governor, the attorney general, or the
superintendent under § 1983. The court reasoned that
state officials acting in their official capacities are not
"persons" subject to suit under the statute. We
review the district court's rulings de novo.
threshold question is whether there is jurisdiction over
Calzone's action against each of the defendants-the
governor, the attorney general, and the superintendent.
Calzone adequately alleges that he was injured by a seizure
and is likely to be injured in the future. But Article III
standing to sue each defendant also requires a showing that
each defendant caused his injury and that an order of the
court against each defendant could redress the injury.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
the defendants are state officials, Calzone also must show
that the action is not barred by state sovereign immunity
arising from the Eleventh Amendment. A suit for injunctive or
declaratory relief avoids this immunity if the official has
some connection to the enforcement of the challenged laws.
See Ex parte Young, 209 U.S. 123, 157 (1908). In a
case like this one, the two inquiries are similar:
"[W]hen a plaintiff brings a pre-enforcement challenge
to the constitutionality of a particular statutory provision,
the causation element of standing requires the named
defendants to possess authority to enforce the complained-of
provision." Dig. Recognition Network v.
Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015)
(alteration in original) (quotation omitted).
plainly has standing to sue the superintendent. For purposes
of the Eleventh Amendment and Ex parte Young, a
state official's requisite connection with the
enforcement of a statute may arise out of "the general
law" or be "specially created by the act
itself." 209 U.S. at 157. Section 304.230.1 specifically
authorizes the superintendent to "promulgate rules and
regulations relating to the implementation of the
provisions" of § 304.230, so she is subject to suit
on claims for injunctive and declaratory relief. Her
directions that patrol officers should implement the statute
by conducting vehicle inspections cause Calzone's injury,
and an order directing her to cease and desist would redress
claims against the governor, on the other hand, do not
present a case or controversy. No provision in Chapter 304 or
the statutes defining his executive authority specifically
authorizes the governor to enforce the vehicle inspection
statutes. See Mo. Rev. Stat. § 26.010-.225. The
Missouri Constitution confers upon the governor the duty to
"take care that the laws are distributed and faithfully
executed, " Mo. Const. art. IV, § 2, but such a
general executive responsibility is an insufficient
connection to the enforcement of a statute to avoid the
Eleventh Amendment. See Fitts v. McGhee, 172 U.S.