106 F.4th 552
6th Cir.2024Background
- Jeff Rising served as a part-time City Commissioner for Adrian, Michigan, and was also a real estate agent.
- Shane Mackey, a local resident, posted critical and allegedly false information about Rising on Facebook during an election period.
- Rising responded to Mackey’s post by calling Mackey’s mother late at night, allegedly threatening that "somebody is going to get hurt" if defamatory posts were not deleted.
- Mackey sued Rising under 42 U.S.C. § 1983, asserting the threat constituted state action suppressing his First Amendment rights.
- Rising accepted legal defense from the City’s insurer (Liability Pool) based on the complaint but later argued he acted purely in his private capacity.
- The district court granted summary judgment for Rising, finding no state action; Mackey appealed, arguing both on the state action element and waiver/estoppel grounds regarding Rising’s defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rising’s conduct was under color of state law | Rising acted as a city official to stifle criticism | Act was private—Rising had no city authority to threaten violence | Not state action: No city authority for threats; purely private act |
| Whether using city insurance estopped Rising’s state-action defense | Acceptance of public defense = admission of official capacity | Insurer’s duty to defend is based on allegations, not actual conduct | No waiver/estoppel: Defense/acceptance not inconsistent |
| Applicability of waiver doctrine to state-action defense | Rising waived by conduct (accepting funds) | Consistently denied official capacity; followed insurance practices | No waiver—no intentional relinquishment or inconsistent actions |
| Applicability of judicial estoppel to Rising’s positions | Rising took inconsistent positions before court | Positions based on allegations (defense) vs. facts (summary judgment) | No estoppel—no true inconsistency between legal positions |
Key Cases Cited
- Lindke v. Freed, 601 U.S. 187 (2024) (clarified two-part test for state action by government officials on social media/private conduct)
- Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (parallel state-action requirements for Constitution and § 1983)
- Monroe v. Pape, 365 U.S. 167 (1961) (state action can include misuse of authority)
- Griffin v. Maryland, 378 U.S. 130 (1964) (state action exists if defendant wields state delegated authority)
- Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975) (focus on whether conduct is under state authority)
- Bogan v. Scott-Harris, 523 U.S. 44 (1998) (legislators as state actors for official duties)
- Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802 (2019) (first amendment applies only to state action)