ANDREW COOPERRIDER; DEANS DINER, LLC, dba Brewed v. MAGGIE WOODS, Malt Beverage Administrator with the Kentucky Department of Alcoholic Beverage Control, ANDREW G. BESHEAR, Governor of Kentucky, RAY A. PERRY, Secretary of Public Protection Cabinet, ALLYSON TAYLOR, Commissioner of the Kentucky Department of Alcoholic Beverage Control, WESLEY WARDEN DUKE, General Counsel for the Kentucky Cabinet for Health and Family Services, and JOSHUA NEWTON, General Counsel for the Kentucky Department of Alcoholic Beverage Control, in their individual and official capacities
No. 24-5351
United States Court of Appeals for the Sixth Circuit
February 7, 2025
2025a0026p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Decided and Filed: February 7, 2025
Before: MOORE, CLAY, and THAPAR, Circuit Judges.
COUNSEL
ON BRIEF: Christopher Wiest, Theodore Roberts, CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR, ARMSTRONG, Cincinnati, Ohio, for Appellants. Jan M. West, J. W. Hall, GOLDBERG SIMPSON, LLC, Prospect, Kentucky, for Appellees Maggie Woods and Allyson Taylor. Laura C. Tipton, Travis Mayo, Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellee Andy Beshear. T. Chad Thompson, KENTUCKY PUBLIC PROTECTION CABINET, Frankfort, Kentucky, for Appellee Ray Perry. LeeAnne Applegate, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellee Wesley Duke. Jennifer Wolsing, KENTUCKY PUBLIC PROTECTION CABINET, Frankfort, Kentucky, for Appellee Joshua Newton.
MOORE, J., delivered the opinion of the court in which CLAY, J., concurred, and THAPAR, J., concurred in part. THAPAR, J. (pp. 31–44), delivered a separate opinion concurring in part and dissenting in part.
OPINION
KAREN NELSON MOORE, Circuit Judge. In March 2020, Andrew Cooperrider expressed on social media his dissatisfaction with Kentucky Governor Andrew Beshear‘s actions in response to the COVID-19 pandemic. Cooperrider, the owner of Brewed, a coffee shop and bar in Lexington, took specific offense to Governor Beshear‘s executive orders requiring masks indoors and prohibiting indoor dining and drinking. Then, in November 2020, the Kentucky Department of Alcoholic Beverage Control (“DABC“) suspended Brewed‘s alcohol license. Upon DABC‘s official revocation of Brewed‘s license in March 2022, Cooperrider filed suit against the Governor, the DABC commissioner, and a number of other executive-branch officials alleging First Amendment and due-process violations. According to Cooperrider, his social media postings and the license-revocation action were connected: the Governor and DABC had allegedly revoked Brewed‘s alcohol license in retaliation for Cooperrider‘s protected speech criticizing Beshear and his COVID-19 policies. All defendants responded to the suit by moving to dismiss. The district court granted those motions and dismissed the case. Cooperrider and Brewed now appeal.
We hold that the district court correctly determined that the vast majority of Cooperrider‘s claims are barred by the doctrines of absolute, qualified, and sovereign immunity, and that it correctly determined that Cooperrider‘s remaining substantive-due-process claim fails the
I. FACTUAL BACKGROUND
A. Cooperrider‘s Speech
When the COVID-19 pandemic erupted in March of 2020, Kentucky Governor
B. The Enforcement Proceeding
On November 25, 2020, the DABC commenced an enforcement action against Brewed and filed an emergency order suspending Brewed‘s alcohol license.3 Id. at ¶ 18 (Page ID #5); R. 23-3 (Emer. Susp. Order at 1) (Page ID #344). The emergency-suspension order rested on “two separate and distinct violations by the licensee“: first, Brewed‘s apparent violation of the Governor‘s executive orders; and second, the establishment‘s “disorderly conduct” in violation of state law. R. 23-3 (Emer. Susp. Order at 1–2) (Page ID #344–45). The disorderly conduct violation stemmed from an incident on November 24, 2020, when Cooperrider and Brewed patrons harassed an inspector from the Lexington-Fayette County Health Department (“LFCHD“) who had been conducting a regularly scheduled inspection at Brewed. Id. at 2–3 (Page ID #345–46). The order stated that “[t]he second basis for this Emergency Suspension Order is independent of the first and does not rely on the Governor‘s Executive Orders.” Id. at 1–2 (Page ID #344–45). DABC also served upon Cooperrider a notice of violation (“NOV“) providing notice that the Department had initiated administrative proceedings and sought to revoke or suspend Brewed‘s alcohol license. R. 23-4 (NOV at 1) (Page ID #354).
When the Kentucky General Assembly convened its 2021 Regular Session, the legislature passed legislation overturning Governor Beshear‘s pandemic-related executive orders and restraining the Governor‘s power to issue future executive orders. R. 1 (Compl. at ¶ 21–27) (Page ID #5–7). That legislation included House Bill 1 (“HB1“), which loosened the requirements for indoor gathering, including in restaurants and bars; Joint House Resolution 77 (“HR77“), which ended the Governor‘s orders relating to business
Meanwhile, the DABC enforcement action against Brewed proceeded, and a hearing was held on May 21, 2021. Id. at ¶ 31 (Page ID #8). Then, on March 4, 2022, DABC revoked Brewed‘s alcohol license. Id. at ¶ 35 (Page ID #9). Cooperrider appealed the revocation order in state court. R. 8-2 (State Appeal at 1-14) (Page ID #97–110). According to Governor Beshear‘s brief, on June 4, 2024, the Fayette Circuit Court reversed DABC‘s final order revoking Brewed‘s license. Beshear Br. at 6 n.2 (citing Deans Diner, LLC d/b/a Brewed v. Alcoholic Beverage Control Bd., Civil Action No. 22-CI-00894 (Fayette Cir. Ct. June 4, 2024)). DABC appealed that decision, and the matter is currently pending before the Kentucky Court of Appeals. Alcoholic Beverage Control Bd. v. Deans Diner, LLC d/b/a Brewed, No. 2024-CA-0800 (Ky. Ct. App.).
C. The Proceedings Below
Following the revocation of Brewed‘s alcohol license, Cooperrider and Brewed (hereinafter, “Cooperrider“) quickly filed suit against Governor Beshear; Ray Perry, Secretary of the Kentucky Public Protection Cabinet; Wesley Duke, General Counsel for the Kentucky Cabinet for Health and Family Services; Joshua Newton, DABC General Counsel; Allyson Taylor, DABC Commissioner; and Maggie Woods, DABC Malt Beverage Administrator. R. 1 (Compl. at ¶ 4–9) (Page ID #3). The complaint alleged violations of Cooperrider‘s First Amendment and due-process rights. Id. at ¶ 36–50 (Page ID #9–11). According to Cooperrider, Beshear and DABC had unconstitutionally retaliated against Brewed for Cooperrider‘s protected speech criticizing the Governor‘s COVID-19 policies. Id. at ¶ 38–40 (Page ID #9–10). And by failing to discontinue the enforcement action and continuing to withhold Cooperrider‘s property—i.e., Brewed‘s alcohol license—Beshear and DABC had deprived Cooperrider of both procedural and substantive due process. Id. at 45–47 (Page ID #10–11). Cooperrider sought both compensatory and injunctive relief against all defendants in both their personal and official capacities.
In response to the complaint, Defendants Perry, Beshear, Duke, and Newton moved to dismiss all claims brought against them in both their official and individual capacities. R. 7 (Perry Mot. to Dismiss); R. 8 (Beshear Mot. to Dismiss); R. 9 (Duke Mot. to Dismiss); R. 23 (Newton Mot. to Dismiss). The district court granted all four motions via a memorandum opinion and order issued on March 23, 2023, and terminated the case as to defendants Perry, Beshear, Duke, and Newton. R. 26 (Mem. Op. and Order I).
Defendants Woods and Taylor initially filed answers. R. 12 (Woods Answer), R. 13 (Taylor Answer). After the district court dismissed defendants Perry, Beshear, Duke, and Newton, only Defendants Woods and Taylor remained. Woods and Taylor filed a joint motion to dismiss. R. 27 (Taylor/Woods Mot. to Dismiss). The district court granted the motion, dismissed both defendants from the case, and adjudged the action dismissed via a memorandum opinion and order and accompanying final judgment on March 19, 2024. R. 33 (Mem. Op. and Order II), R. 34 (Judgment). Cooperrider timely appealed. R. 35 (Notice of Appeal at 1) (Page ID #500).
II. DISCUSSION
A. Standard of Review
Via its March 23, 2023 and March 19, 2024 orders, the district court dismissed all
“We review de novo a district court‘s decision to grant a motion to dismiss for failure to state a claim under
Similarly, “[w]e review de novo the district court‘s ruling on a
B. Individual-Capacity Claims
We first address Cooperrider‘s claims against Defendants in their individual capacities. Cooperrider seeks damages under
1. Absolute Immunity
The district court held that all three DABC officials against whom Cooperrider brought suit—Newton, Woods, and Taylor—were entitled to absolute immunity for their actions taken in furtherance of DABC‘s enforcement action against Brewed. “We review a district court‘s grant of absolute immunity de novo.” Turner v. Lowen, 823 F. App‘x 311, 317 (6th Cir. 2020) (citing Moldowan v. City of Warren, 578 F.3d 351, 373–74 (6th Cir. 2009)). At the same time, “[t]he burden of justifying absolute immunity rests on the official asserting the claim.” Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). On appeal, Newton, Woods, and Taylor bear the burden of proving their entitlement to absolute immunity.
“Absolute prosecutorial immunity . . . is a common law principle that shields a prosecutor from § 1983 liability.” Cooper v. Parrish, 203 F.3d 937, 946 (6th Cir. 2000). The Supreme Court has long held that prosecutors are entitled to absolute immunity for actions taken within the scope of their duties “in initiating a prosecution and in presenting the State‘s case.” Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976); see also Prince v. Hicks, 198 F.3d 607, 611 (6th Cir. 1999) (“A prosecutor is entitled to absolute immunity when that prosecutor acts ‘as an advocate for the State’ and engages in activity that is ‘intimately associated with the judicial phase of the criminal process.‘“) (quoting Imbler, 424 U.S. at 430–31).
“The Supreme Court has endorsed a ‘functional’ approach for determining whether an official is entitled to absolute prosecutorial immunity, explaining that a court should look to ‘the nature of the function performed, not the identity of the actor who performed it.‘” Cooper, 203 F.3d at 946–47 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). This approach “focuses on whether the prosecutor‘s activities are ‘intimately associated with the judicial phase of the clinical process.‘” Id. (quoting Imbler, 424 U.S. at 430). So, under the functional approach, we have held that “[a]bsolute immunity extends to a prosecutor‘s conduct in ‘initiating a prosecution and in presenting the [government‘s] case‘” as well as “the ‘administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution.‘” Rieves v. Town of Smyrna, 959 F.3d 678, 691 (6th Cir. 2020) (first quoting Imbler, 424 U.S. at 431) (then quoting Ireland v. Tunis, 113 F.3d 1435, 1447 (6th. Cir. 1997)).
Applying the functional approach, the Supreme Court “has extended absolute immunity to certain others who perform functions closely associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200 (1985). Specifically, in Butz v. Economou, the Court held that the protections of absolute immunity extend to administrative agency officials “who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication.” 438 U.S. 478, 516 (1978)4; see also Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (stating that absolute prosecutorial immunity “also extends beyond the criminal
continuing the enforcement action against Brewed, functioned in a prosecutorial role in initiating and continuing those proceedings. See Newton Br. at 6–14. We answer that question in the affirmative.
To determine whether an individual public official is entitled to absolute immunity, “we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted” and “evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Forrester, 484 U.S. at 224. The complaint alleges that Newton, in his role as DABC general counsel, made the discretionary decision to initiate and continue an enforcement proceeding against Brewed. R. 1 (Compl. at ¶ 20) (Page ID #5) (stating that Newton sent emails “reflect[ing] a concerted effort to deprive Plaintiffs of their alcohol licenses“); id. at ¶ 18, 31 (Page ID #5, 8) (referring to all Defendants, including Newton, collectively). These allegations are supported by the fact that Newton signed and served Brewed with the NOV, putting Cooperrider on notice that DABC had initiated an administrative proceeding before the Alcoholic Beverage Control Board and sought to revoke or suspend Brewed‘s alcohol license. R. 23–4 (NOV at 1) (Page ID #354). And the recommended order issued by the hearing officer lists Newton as having represented DABC at the revocation hearing. R. 8-2 (Rec. Order at 1) (Page ID #119).
Newton‘s role in the license-revocation proceeding appears to have been a quintessentially prosecutorial one: initiating, and then litigating, an enforcement proceeding against Brewed that resulted in an agency adjudication revoking its alcohol license. See, e.g., Kovacic v. Cuyahoga Cnty. Dep‘t of Child. & Fam. Servs., 724 F.3d 687, 694 (6th Cir. 2013) (holding that social workers, who “often engage in prosecutorial functions when carrying out their duties,” are “entitled to absolute immunity when they engage in conduct ‘intimately associated with the judicial phase of the criminal process‘” such as “initiating court actions or testifying under oath” in child-welfare proceedings) (quoting Pittman v. Cuyahoga Cnty. Dep‘t of Child. & Fam. Servs., 640 F.3d 716, 724 (6th Cir. 2011)). The critical question is whether Newton was “functioning in an enforcement role and acting as [an] advocate[] for the state in initiating and prosecuting judicial proceedings,” in which case he is “entitled to an absolute immunity defense.” Cooper, 203 F.3d at 947. We conclude that Newton was.
Our conclusion tracks with that of the Fifth Circuit, which addressed this very question in Spec‘s Family Partners, Ltd. v. Nettles, 972 F.3d 671 (5th Cir. 2020). There, a liquor store chain operator brought a civil-rights action against Texas Alcoholic Beverage Commission (“TABC“) officials who had refused to renew the business‘s alcohol permits and who had advocated against the granting of new permits for additional chain locations. Id. at 675. The Fifth Circuit determined that the officials’ challenged conduct in placing administrative holds on permits, protesting the granting of new permits, and making decisions regarding renewal permits “was akin to prosecutors intimately involved in judicial proceedings and therefore ‘entitled to absolute immunity from suit.‘” Id. at 678 (quoting Disraeli v. Rotunda, 489 F.3d 628, 632 (5th Cir. 2007)). The Fifth Circuit thus held that the TABC officials “were
Like the officials in Nettles, Newton functioned in a quasi-prosecutorial role in initiating and prosecuting the enforcement action against Brewed. Newton exercised his discretion in deciding to initiate the license-revocation proceeding, and then acted as an advocate for the state in continuing to argue for the revocation of Brewed‘s license, up to and including his representation of DABC at the administrative hearing. Newton‘s role was one “intimately associated” with the agency‘s adjudicatory proceedings. Imbler, 424 U.S. at 431. Newton is therefore protected from damages liability under the doctrine of absolute quasi-prosecutorial immunity. The district court did not err in dismissing Cooperrider‘s claims against Newton in his individual capacity.
b. Woods and Taylor
Like the doctrine of prosecutorial immunity, the doctrine of absolute judicial immunity has long been recognized at common law as necessary to “shield[] judges from collateral attacks challenging a judge‘s actions taken in her official judicial capacity.” Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 518 (6th Cir. 2023). “This immunity is absolute: all of a judge‘s actions taken in an official judicial capacity are immune from suit.” Id. And as it has for absolute prosecutorial immunity, the Supreme Court has extended the protections of absolute judicial immunity to “non-judicial officers who perform ‘quasi-judicial’ duties.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (quoting Joseph v. Patterson, 795 F.2d 549, 560 (6th Cir. 1986)). So, when the Supreme Court in Butz determined that administrative agency officials performing quasi-prosecutorial functions were entitled to absolute immunity, it also held that those individuals “performing adjudicatory functions within a[n] . . . agency are entitled to absolute immunity from damages liability for their judicial acts.” Butz, 438 U.S. at 514.5
judicial capacity when they issued the final order revoking Brewed‘s alcohol license. Woods and Taylor Br. at 11–13. We agree.
While we lack the benefit of precedent as to whether state agency commissioners who suspend or revoke liquor licenses enjoy absolute immunity—in fact, we expressly reserved any decision on this exact question in Flying Dog Brewery, LLLP v. Michigan Liquor Control Comm‘n, 597 F. App‘x 342, 349 (6th Cir. 2015) (“We expressly do not . . . consider whether the Hearing Commissioners who suspend or revoke liquor licenses in disciplinary cases are entitled to quasi-judicial immunity.“) our en banc decision in Watts v. Burkhart provides guidance. Watts involved a Tennessee physician who brought a § 1983 action against members of the Tennessee Board of Medical Examiners, in their individual capacities, for their roles in presiding over an administrative hearing to determine whether Watts had prescribed controlled substances in unsafe quantities and summarily suspending his medical license. 978 F.2d at 271. Determining that “the quasi-judicial function exercised by the defendants in the case at bar appears comparable to functions that have long been accorded absolute immunity at common law” and that the members of the board were “subject to restraints and safeguards comparable to those built into the archetypal judicial process,” we concluded that the board members were entitled to absolute quasi-judicial immunity. Id. at 275, 278.
In the years following Watts, we have applied its logic in affording absolute immunity to members of a state board of education for their role in overseeing administrative hearings and adjudicating the removal of members of a county board of education, Hale v. Cody, 188 F.3d 507 (6th Cir. 1999) (table) (per curiam), as well as members of a state parole board for their role in scheduling parole hearings and making parole determinations, Hughes v. Duncan, 93 F.4th 374, 381 (6th Cir. 2024). On the other hand, we have declined to extend the protection of absolute immunity to members of a university faculty grievance committee for their role in handling a faculty member‘s tenure-denial grievance, Purisch v. Tennessee Tech. Univ., 76 F.3d 1414, 1422 (6th Cir. 1996); to the director of a state bar association for his alleged conduct in threatening a picketer outside his residence, Dean v. Byerley, 354 F.3d 540, 557 (6th Cir. 2004); or to the members of a state environmental-quality department for their actions related to the water crisis in Flint, Michigan, Boler v. Earley, 865 F.3d 391, 416 (6th Cir. 2017).
Watts and its progeny articulate a set of factors that inform our analysis as to whether an agency official is entitled to quasi-judicial immunity. First, we look to whether the officials’ “positions are akin to that of judges.” Purisch, 76 F.3d at 1422 (quoting Watts, 978 F.2d at 278). Second, we determine whether “the potential for vexatious lawsuits is great.”
First, Woods and Taylor performed a function “normally performed by an adjudicator,” Dean, 354 F.3d at 556. As agency heads, Woods and Taylor are authorized by statute to oversee the conduct of administrative hearings and to delegate the power to issue recommended orders to subordinate hearing officers.
the district judge. R. 8–2 (Final Order at 1–7) (Page ID #111–17). This factor therefore weighs in favor of granting Woods and Taylor absolute quasi-judicial immunity.7
Finally, a number of regulatory safeguards established by Kentucky law protect those subjected to license-revocation proceedings, “tend[ing] to reduce the need for private damages actions as a means of controlling unconstitutional conduct.” Hughes, 93 F.4th at 379 (quoting Butz, 438 U.S. at 512). Chapter 13B of the Kentucky Revised Statutes sets forth the rules governing administrative hearings—the right to which is guaranteed by law under Ky. Rev. Stat.
“Because these adversarial features of the [agency‘s] hearing process ‘tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.‘” Hughes, 93 F.4th at 380 (quoting Butz, 438 U.S. at 512). And the availability
““[O]fficials who seek absolute immunity must squarely shoulder the burden of showing that public policy demands an exemption [from damages liability] of that scope.“” Watts, 978 F.2d at 278 (quoting Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 784 n.15 (1st Cir. 1990)). Woods and Taylor can and do meet this burden, having shown that “their positions are akin to that of judges,” “the potential for vexatious lawsuits is great,” and that there are “enough safeguards” under Kentucky law to protect the constitutional rights of alcohol-license holders. Id. They are therefore entitled to absolute immunity from damages.9 10
Control Commission for their role in denying a brewery‘s license to sell their beer in the state). But as discussed above, we expressly declined in Flying Dog to address the question presented here. Id. at 349. And the factual differences between the actions taken by the commissioners in Flying Dog and the actions taken by Woods and Taylor distinguish the two cases. First, “[t]he Commission‘s rules . . . provide more extensive procedural safeguards to parties who appear before the Hearing Commissioners due to liquor violations than to parties who appear before the Administrative Commissioners on initial licensing matters.” Id. at 350. And unlike the commissioners in Flying Dog, Wood and Taylor were required by regulation “to explain their decisions through findings of fact and conclusions of law.” Id. at 351. Additionally, while the licensure proceeding in Flying Dog lacked many of the adversarial characteristics of a judicial proceeding, the license revocation hearing in this case involved the opportunity for both parties to present evidence and argument, the presentation and examination of witnesses, and the ability to make and record evidentiary objections. See
Woods and Taylor exercised functions more comparable to those of judges, and were subject to more restraints and safeguards, than the agency officials in Flying Dog. Both Woods and Taylor are entitled to absolute immunity. Accordingly, we affirm the district court‘s dismissal of Cooperrider‘s claims for damages against Woods and Taylor in their individual capacities based on absolute immunity.
2. Qualified Immunity
The district court determined that Cooperrider‘s individual-capacity claims against the remaining Defendants—Beshear, Perry, and Duke—were barred by the doctrine of qualified immunity. R. 26 (Mem. Op. and Order I at 13) (Page ID #421). We review the district court‘s qualified-immunity determination de novo. Adams v. Hanson, 656 F.3d 397, 401 (6th Cir. 2011).
“The doctrine of qualified immunity provides that ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Skatemore, 40 F.4th at 738 (quoting Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021)). “While the defendant ‘bears the burden of pleading’ a qualified immunity defense, ‘[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity.‘” Palma v. Johns, 27 F.4th 419, 427 (6th Cir. 2022) (quoting Estate of Hill v. Miracale, 853 F.3d 306, 312 (6th Cir. 2017)) (brackets in original).
Because Beshear, Perry, and Duke all raised qualified-immunity defenses in their motions to dismiss, R. 7 (Perry Mot. to Dismiss at 11) (Page ID #70), R. 8 (Beshear Mot. to Dismiss at 16-17) (Page ID #92–93), R. 9 (Duke Mot. to Dismiss at 10–11) (Page ID #178–79), the burden
We have repeatedly cautioned, however, that “it is generally inappropriate for a district court to grant a
Here, the district court found that Cooperrider‘s complaint failed plausibly to allege a First Amendment retaliation claim, substantive-due-process claim, or procedural-due-process claim. R. 26 (Mem. Op. and Order I at 12–13) (Page ID #420–21). Having determined that Cooperrider failed to plead facts demonstrating the violation of any constitutional right, the district court did not proceed to an analysis of whether the at-issue rights were clearly established. We evaluate the district court‘s determination as to each claim in turn.
a. First Amendment Retaliation
Cooperrider argues that Beshear, Perry, and Duke violated his First Amendment rights by retaliating against him for his critical social-media activity by initiating the enforcement action against Brewed. Appellant Br. at 15. “To prove a First Amendment retaliation claim, a plaintiff must show: (1) he engaged in protected speech; (2) the defendant took an adverse action against him; and (3) there is a causal connection between the protected speech and the adverse action.” Josephson v. Ganzel, 115 F.4th 771, 783 (6th Cir. 2024). All parties agree that Cooperrider engaged in protected speech when he wrote critically of the Governor and his administration‘s response to the COVID-19 pandemic. The question before us, then, is whether Cooperrider adequately pleaded an adverse action taken by the Defendants—i.e., the initiation and continuation of enforcement proceedings against Brewed and the permanent revocation of Brewed‘s alcohol license—and that the action was causally connected to Cooperrider‘s protected speech. The district court determined that the complaint failed plausibly to allege a First Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 16–19) (Page ID #424–27). We disagree.
Critically, “[w]hether an alleged adverse action is sufficient to deter a person of ordinary firmness is generally a question of fact.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583-84 (6th Cir. 2012). “The adverse nature of a particular action ‘will depend on context.‘” Josephson, 115 F.4th at 787 (quoting Bell v. Johnson, 308 F.3d 594, 602–03 (6th Cir. 2002)). “As a result, retaliation claims based on all but genuinely ‘inconsequential’ official actions ‘should go to the jury.‘” Id. (quoting Bell, 308 F.3d at 603).
Here, Cooperrider alleges that Beshear, Perry, and Duke chose to initiate11 and continue12 an enforcement action against Brewed, resulting in the revocation of Brewed‘s license to serve alcohol. We have repeatedly found similar actions sufficiently adverse to meet this element of a retaliation claim. See, e.g., Josephson, 115 F.4th at 787 (holding that a school‘s decision not to renew a teacher‘s contract was “a traditional example of an adverse action“); Holzemer v. City of Memphis, 621 F.3d 512, 520 (6th Cir. 2010) (affirming the district court‘s holding that a government employee‘s “dilatory tactics with respect to reissuing permits . . . amounted to adverse acts that would deter a person of ordinary firmness from engaging in the protected petitioning activity“); Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 725–26 (6th Cir. 2010) (holding that an allegation that Township officials had threatened to revoke a resident‘s special-use permit was sufficient to show an adverse action at the
against Brewed, on its face, supports a reasonable inference that Cooperrider suffered an adverse action.
Second, the complaint contains sufficient facts demonstrating that “the adverse action was motivated at least in part by [Cooperrider‘s] protected conduct.” Dye v. Off. of the Racing Comm‘n, 702 F.3d 286, 294 (6th Cir. 2012) (quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)).13 To show causation, a complainant must point to “specific, nonconclusory allegations’ reasonably linking her speech” to the adverse action. Bailey v. Floyd Cnty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 144 (6th Cir. 1997) (quoting Wright v. Illinois Dep‘t of Child. & Fam. Servs., 40 F.3d 1492, 1500 (7th Cir. 1994)). Cooperrider‘s complaint does so. Accepting all well-pleaded factual allegations in the complaint as true, Beshear, Perry, and Duke all (1) knew about Cooperrider‘s critical social-media posts and (2) decided to initiate the enforcement action against Brewed because of Cooperrider‘s comments.14 The complaint makes several allegations relating to the causation element, including that “Defendants were each aware of, and angered by, the social media activity of the Plaintiffs,” R. 1 (Compl. at ¶ 15) (Page ID #4); that Governor Beshear had, “in public statements and speeches, directly addressed the speech of Plaintiffs, usually in a manner that expresse[d] his anger at such speech,” id. at ¶ 16; that “Email communications by and between Defendants Duke, Newton, and Taylor, in particular reflect a concerted effort to deprive Plaintiffs of their alcohol licenses,” id. at ¶ 20 (Page ID #5); that “[i]nternal emails, communications, and
witnesses have confirmed” that all Defendants “had knowledge of the existence of Brewed‘s [new and compliant public safety] plan, and deliberately chose to continue their illegal enforcement action,” id. at ¶ 33 (Page ID #8); that “Beshear, Perry, and Duke each directed that no . . . settlement be offered to Brewed, because the Defendants desired to punish Brewed and Cooperrider for their First Amendment protected speech,” id. at ¶ 34 (Page ID #8–9); and
Defendants urge us to follow the lead of the district court, which decided the causation element largely based on the gap in time between Cooperrider‘s speech and the adverse action. Beshear Br. at 19; Newton Br. at 19; Duke Br. at 14. Citing our decision in Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392 (6th Cir. 2010), the district court determined that “the long duration between the Plaintiffs’ speech and the Defendants’ actions is a weak indicator, if any, of causation.” R. 26 (Mem. Op. and Order I at 17) (Page ID #425); see Vereecke, 609 F.3d at 400 (“[T]he more time that elapses between the protected activity and the adverse employment action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory conduct to establish causality.’” (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524–25 (6th Cir. 2008))). But Vereecke, like the rest of the cases the district court cited in support of its conclusion,15 was decided at the summary-judgment stage. Here, at the pleading stage, Cooperrider need only “allege[] facts ‘that would allow a jury to find that [the adverse action] was motivated at least in part by’ [Cooperrider‘s] speech.” Bright v. Gallia County, 753 F.3d 639, 653 (6th Cir. 2014) (quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).
Cooperrider alleges that he “made ongoing posts and other speech critical of the Governor and others . . . starting in November, 2020 and through March 24, 2022.” Appellant Br. at 20; R. 1 (Compl. at ¶¶ 13–14) (Page ID #4). The enforcement action began on November 25, 2020. R. 1 (Compl. at ¶ 18) (Page ID #5). Cooperrider therefore claims that “mere days” passed between his protected speech and the adverse action. Appellant Br. at 20. Whether that claim is true is a question of fact inappropriate for resolution at this stage.
We conclude that the complaint succeeds in stating a First Amendment retaliation claim. In coming to the opposite conclusion, the district court, by finding that almost all of Cooperrider‘s factual allegations were “conclusory,” R. 26 (Mem. Op. and Order I at 13) (Page ID #421), fundamentally misapplied the pleading standard as articulated in Iqbal. That case and its progeny in this court stand for the proposition that we need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The district court applied that proposition to find that the facts alleged in the complaint “amount[ed] to nothing more than a ‘formulaic recitation of the elements’” of a First Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 14) (Page ID #422) (quoting Iqbal, 556 U.S. at 681). But
Having concluded that the complaint successfully states a First Amendment retaliation claim, we next address whether the right at issue was clearly established at the time of the alleged violation. Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). In the context of a motion to dismiss, “[t]he test is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that an official‘s acts violated the plaintiff‘s clearly
established constitutional right.” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 562–63 (6th Cir. 2011). “The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional.” Zilich v. Longo, 34 F.3d 359, 365 (6th Cir. 1994). And we have “clearly stated that private citizens have a First Amendment right to criticize public officials and to be free from retaliation for doing so.” Holzemer, 621 F.3d at 520. We therefore conclude that the complaint plausibly alleges that Beshear, Perry, and Duke violated Cooperrider‘s clearly established right to criticize the state government without retaliation. Accordingly, we reverse the district court‘s grant of qualified immunity to Beshear, Perry, and Duke as to Cooperrider‘s First Amendment retaliation claim.
b. Substantive Due Process
Cooperrider contends that Beshear, Perry, and Duke violated his substantive-due-process rights by arbitrarily depriving him of his property—i.e., Brewed‘s alcohol license—despite the intervening changes in Kentucky law that Cooperrider contends “completely foreclosed any of the actions taken by Appellees after June [28], 2021.” Appellant Br. at 22 (emphasis omitted).17 The district court determined that the complaint failed to state a plausible claim that the enforcement action was unconstitutionally arbitrary. R. 26 (Mem. Op. and Order I at 23) (Page ID #431). We agree.
“The Due Process Clause of the Fourteenth Amendment protects citizens from governmental deprivation of ‘life, liberty, or property, without due process of law.’” Kerchen v. Univ. of Mich., 100 F.4th 751, 763 (6th Cir. 2024) (quoting
‘arbitrary and capricious’ action,” or, in other words, “behavior from state actors that ‘shock[s] the conscience.’” Kerchen, 100 F.4th at 763 (first quoting Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003)) (then quoting Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003)).
“When the conduct in question has been taken by an executive officer, the action violates substantive due process only if it can be characterized as ‘arbitrary, or conscience shocking, in a constitutional sense.’” Handy-Clay, 695 F.3d at 547 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)). We have stated that “this characterization applies to ‘only the most egregious official conduct, . . . conduct that is “so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency.”’” Id. at 547–48 (first quoting Lewis, 523 U.S. at 846) (then quoting Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). This standard “sets a high bar,” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014), and we have been careful to emphasize that it “does not impose constitutional liability on all state actors who simply cause harm,” Kerchen, 100 F.4th at 763.
Here, Cooperrider‘s claim is that Beshear, Perry, and Duke “flagrantly ignored Kentucky state law” in continuing the enforcement action against Brewed despite the intervening passage of legislation. Appellant Br. at 23. Cooperrider plausibly pleaded the deprivation of a protectable interest under the Constitution, that is, the revocation of Brewed‘s alcohol license. See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435 (6th Cir. 2005) (holding that a holder of a liquor license has a constitutionally protected property interest in the license). The question before us is therefore whether Beshear‘s, Perry‘s, and Duke‘s “alleged role[s] in this deprivation amounted to conscience-shocking behavior.” Kerchen, 100 F.4th at 763.
Even viewing the complaint in the most favorable light, we conclude that Cooperrider fails to allege that Beshear, Perry, or Duke engaged in constitutionally arbitrary or conscience-shocking conduct. Assuming that the three directed DABC to initiate the proceeding, the decision to engage in disciplinary action against a state-licensed establishment found to be in violation of state law does not shock the conscience. And the continuation of the enforcement proceeding after the passage of HB1, HR 77, and HB192—particularly where it is unclear whether any of the legislation was retroactive—“does not sink to the level of conscience-shocking state action.” Gerber v. Herskovitz, 14 F.4th 500, 508 (6th Cir. 2021).
“Where governmental action does not deprive a plaintiff of a particular constitutional guarantee or shock the conscience, that action survives the scythe of substantive due process so long as it is rationally related to a legitimate state interest.” Valot v. Se. Loc. Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997). At this stage of the litigation, Cooperrider “bear[s] the burden to show that Defendants’ decision was not rationally related to a legitimate state interest.” Id. He fails to carry that burden. As Beshear, Perry, and Duke all posit, Kentucky has a legitimate governmental interest in regulating the sale of alcoholic beverages within its
c. Procedural Due Process
Finally, Cooperrider argues that he was afforded constitutionally inadequate process with respect to the deprivation of Brewed‘s alcohol license. Appellant Br. at 24. The district court determined the complaint failed to allege a plausible procedural-due-process claim. R. 26 (Mem. Op. and Order I at 20) (Page ID #428). We agree.
To establish a procedural-due-process claim in a
Cooperrider does not dispute that he received notice and an opportunity to be heard prior to the revocation of Brewed‘s alcohol license. See R. 1 (Compl. at ¶ 31) (Page ID #8) (acknowledging that Cooperrider was granted a hearing in front of the DABC prior to the revocation of Brewed‘s license). Cooperrider nevertheless argues that he was denied adequate process because Defendants’ “personal animus permeated the end decision, rendering the result [of the hearing] invalid.” Appellant Br. at 24. In support of this argument, Cooperrider cites Williams v. Pennsylvania, a case in which the Supreme Court held that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant‘s case.” 579 U.S. 1, 8 (2016). There, the Court found a procedural-due-process violation where a state supreme court justice, who as a district attorney had given approval to seek the death penalty against an individual, failed to recuse himself and participated in the state supreme court‘s decision to reverse a state postconviction court‘s grant of relief. Id. at 14. In so finding, the Court pointed to its prior holdings that “an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” Id. at 8 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)).
Williams is materially distinguishable. Here, although the complaint alleges that Beshear, Perry, and Duke directed the enforcement action against Brewed, it fails to allege that any of the three were involved in adjudicating the proceeding. In fact, Cooperrider admits that “there are no claims asserted against
granted qualified immunity to Beshear, Perry, and Duke as to Cooperrider‘s procedural-due-process claim.19
C. Claims Against Defendants in their Official Capacities
We next turn to Cooperrider‘s claims against Defendants in their capacities as officers of the Commonwealth of Kentucky. Cooperrider seeks injunctive relief in the form of an order directing Defendants to cease the alleged ongoing violation of his First Amendment and due-process rights. But in his complaint, Cooperrider identifies only one alleged ongoing violation: the continued seizure of Brewed‘s alcohol license. The district court was therefore correct to dismiss Cooperrider‘s official-capacity First Amendment and procedural-due-process claims.
1. Sovereign Immunity
The district court held that the doctrine of sovereign immunity barred Cooperrider‘s First Amendment and procedural-due-process claims against all Defendants in their official capacities. R. 26 (Mem. Op. and Order I at 7) (Page ID #415). We review de novo a district court‘s finding that a defendant is entitled to sovereign immunity. Stanley v. W. Mich. Univ., 105 F.4th 856, 863 (6th Cir. 2024).
The
There are exceptions to the sovereign-immunity bar, including, as relevant here, the narrow exception recognized in Ex parte Young, 209 U.S. 123 (1908). That exception provides that “suits against state officials seeking equitable relief for ongoing violations of federal law are not barred by the
We agree with the district court that sovereign immunity bars Cooperrider‘s First Amendment retaliation and procedural-due-process claims against Beshear, Perry, Duke, Newton, Woods, and Taylor in their official capacities. The alleged violations underlying both claims have concluded. With respect to the First Amendment claim, Defendants “finished” retaliating against Cooperrider for his speech when they permanently revoked Brewed‘s alcohol license, and the complaint fails to allege any anticipated future acts of retaliation. With respect to the procedural-due-process claim, the allegedly inadequate process of which Cooperrider complains—that is, the process afforded him prior to the revocation of Brewed‘s license—concluded when the license was revoked. The complaint does not allege the ongoing violation of his First Amendment or procedural-due-process rights.
We also agree with the district court that sovereign immunity does not apply to bar Cooperrider‘s substantive-due-process claim. “[S]tate officials may commit ‘ongoing’ violations when they unconstitutionally retain possession of a person‘s identifiable property.” Mikel v. Quin, 58 F.4th 252, 257 (6th Cir. 2023). Here, the complaint alleges that Defendants violated Cooperrider‘s substantive-due-process rights by revoking Brewed‘s alcohol license and seeks prospective relief in the form of the reissuance of that license. That allegation falls squarely within the Ex parte Young exception.
2. Substantive Due Process
Because Cooperrider‘s substantive-due-process claim falls within the Ex parte Young exception, the doctrine of sovereign immunity does not bar Cooperrider from pursuing injunctive relief against Defendants in their official capacities if he plausibly states a claim of the violation of his substantive-due-process rights. As discussed in Part II.B.2.b, however, the complaint fails to state adequately a substantive-due-process claim. So the district court properly dismissed Cooperrider‘s substantive-due-process claim against Defendants in their official capacities.
III. CONCLUSION
The district court correctly determined that Newton, Woods, and Taylor were entitled to the protection of absolute quasi-prosecutorial and quasi-judicial immunity. It also correctly determined that Beshear, Perry, and Duke were entitled to the protection of qualified immunity for Cooperrider‘s due-process claims because the complaint failed to state a plausible claim of any due-process violation. And it correctly applied the doctrine of sovereign immunity to bar Cooperrider‘s claims against all Defendants in their official capacities. But the district court erred in determining that Cooperrider failed to state a plausible First Amendment retaliation claim and in granting qualified immunity to Beshear, Perry, and Duke on that claim.
We therefore AFFIRM the district court as to its dismissal of Newton, Woods, and Taylor on the basis of absolute immunity;
CONCURRENCE / DISSENT
THAPAR, Circuit Judge, concurring in part and dissenting in part. If the First Amendment means anything, it means citizens have a right to criticize the government. But when Andrew Cooperrider spoke out against COVID-19 restrictions, the government broke that cardinal rule. It took away his ability to earn a living—all because it didn‘t like his speech.
I join much of the majority‘s analysis. But I write separately because I respectfully disagree with its decision to grant absolute immunity to Taylor and Woods.
I.
The idea that the First Amendment should protect a person‘s right to criticize the government isn‘t new. At the Founding, states ratified the Bill of Rights because they wanted to protect citizens from government persecution. The debates about ratification prove this point. To Federalist supporters of the Constitution, there was no need to protect specific rights. 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 337–47 (Jonathan Elliot ed., 1827) (statements of James Wilson). Why? The Constitution granted the government only express powers, which didn‘t include the ability to censor private citizens. But Anti-Federalists disagreed. They feared that the federal government might overreach and try to censor ideas it didn‘t like. See David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1699 (1991). So they persuaded the Federalists to include an amendment protecting a person‘s ability to speak out against the federal government. Id. After all, even the Federalists agreed that people would continue to disagree. As James Madison put it in Federalist No. 10, “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” The Federalist No. 10, at 73 (James Madison) (Clinton Rossiter ed., 2003). Over the last two centuries, that ideal has guided courts’ interpretation of the First Amendment. See Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). Explicitly political speech, as Judge Bork explained, is always protected. Id. at 26.
Since the Founding, some of our nation‘s most regrettable moments have come when the government ignored the First Amendment‘s constraints. One early black mark came just a decade after states ratified the Constitution. When citizens criticized President John Adams, the Adams administration indicted Americans under the
Another shameful moment came as America barreled towards civil war. Taking a page from the Adams administration, authorities in the South prosecuted individuals who criticized slavery. In one such incident, North Carolina convicted Reverend Daniel Worth for circulating a book that spoke out against slaveowners. Case of Rev. Daniel Worth, N.Y. Times, Apr. 5, 1860, https://www.nytimes.com/1860/04/05/archives/case-of-rev-daniel-worth-conviction-and-sentence-of-imprisonment.html. The Reverend faced imprisonment for his speech. Michael Kent Curtis, The 1859 Crisis over Hinton Helper‘s Book, the Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 Chi.-Kent L. Rev. 1113, 1159 (1993). Although a North Carolina jury found Worth guilty, history vindicated his cause. Slavery and suppressing speech went together. As Frederick Douglass observed, “Slavery cannot tolerate free speech.” Frederick Douglass, “A Plea for Freedom of Speech in Boston,” Dec. 9, 1860. Persecuting people who spoke out against slavery was wrong then, and in history‘s cold light, appears even more abhorrent now.
All in all, American history shows that those who suppress critical speech are often on the wrong side of the Constitution. It‘s easy to think that we would never repeat yesterday‘s sins today. Perhaps because it seemed so far-fetched, for much of the last century, government censorship was relegated to law-school hypotheticals. For example, then-Associate Justice William Rehnquist once hypothesized what would happen if the government tried to crack down on reports related to a spreading pandemic. William H. Rehnquist, The First Amendment: Freedom, Philosophy, and the Law, 12 Gonz. L. Rev. 1, 15–17 (1976). While he wasn‘t sure how courts would rule, he explained such repression would be “stark and dramatic,” and was thankful courts hadn‘t had to confront such an issue. Id. at 17. Justice Rehnquist figured that the government‘s “real motive” would be to cover up its own mistakes and repress those who pointed them out. Id.
II.
Enter Andrew Cooperrider. As the majority notes, Cooperrider owns Deans Diner, LLC, which does business as “Brewed.” Brewed is a small business that sells coffee and beer. It‘s a place where people come together to talk, drink, and enjoy one another‘s company.
So when Kentucky Governor Andy Beshear issued executive orders that forced businesses to close during COVID, Brewed and Cooperrider were hit hard. Cooperrider couldn‘t serve his patrons. And with no patrons, Cooperrider couldn‘t earn a living. For many white-collar workers, Governor Beshear‘s COVID restrictions offered an opportunity to fire up Zoom and work from home. For Cooperrider, like so many other small business owners and blue-collar workers, those restrictions threatened his ability to earn a living.
Cooperrider took to social media to criticize the government‘s policies. He didn‘t like that the Commonwealth of Kentucky shut down businesses, sent police officers into churches to block Easter Sunday celebrations, and silenced protestors. In his
According to Cooperrider, the state government didn‘t appreciate his dissenting views. So Kentucky sought to strip Cooperrider‘s alcohol license because he allegedly hadn‘t complied with executive orders prohibiting indoor dining during COVID. Cooperrider alleges that the government not only knew about his comments but came after him and his livelihood because of them. And he says that although the government settled similar disagreements over COVID restriction compliance with other individuals, it refused to settle with him because of his critical comments. Ultimately, even though the initial hearing officer didn‘t recommend revoking Cooperrider‘s license, the Kentucky Department of Alcoholic Beverage Control disagreed. Kentucky stripped Cooperrider and Brewed of the ability to serve alcohol.
III.
Despite the persecution Cooperrider faced, the majority relies on a theory of absolute immunity to find that Cooperrider can‘t hold two state executive officials responsible for their actions. But the majority‘s wrong to do so: Absolute immunity applies to judicial, not executive officials.
A.
Absolute judicial immunity is strong but necessary medicine. Indeed, for more than a century, American courts have recognized that the need to protect “judicial independence” and reduce “vexatious litigation” about judges’ motives can merit a break from the general principle that each man is liable for his own wrongdoing. Judicial immunity is “as old as the law, and its maintenance is essential to the impartial administration of justice.” Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1869). It‘s important because such immunity prevents litigation about judges’ motives, preserves “judicial independence,” and avoids “vexatious litigation.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348, 354 (1872). Thus, for generations, courts have found that judicial immunity applied to only judges and those acting as judges in courts, like officers conducting courts-martial. See Scott A. Keller, Qualified and Absolute Immunity at Common Law, 73 Stan. L. Rev. 1337, 1357–58 (2021). It‘s true that executive officers had other immunities. See id. at 1358. But judicial immunity is a stiff tonic for a particular ill—not one that courts lightly apply to people outside the judiciary.
Here, though, the majority opinion takes a different approach. In sizing up the actions of two executive officials in Kentucky‘s Department of Alcoholic Beverage Control (Taylor and Woods)—who aren‘t judges—the majority reasons that both officials should receive “quasi-judicial” immunity.
The majority‘s reasoning suggests that any official, from any branch of government, could enjoy judicial immunity if he looks enough like a judge.1 But that‘s not
B.
The Supreme Court has set out a multi-factor test to determine whether individuals deserve absolute immunity. A court is supposed to probe several elements, including: (a) the need to ensure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions to control unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Butz v. Economou, 438 U.S. 478, 512 (1978); Cleavinger v. Saxner, 474 U.S. 193, 202 (1985). All told, the Court has explained that these factors help us assess how similar the relevant actor is to a judge—and whether he should enjoy absolute immunity. Cleavinger, 474 U.S. at 202.
Like many balancing tests, courts applying Butz and Cleavinger consider both the number of factors supporting a particular side and make a holistic evaluation of a party‘s situation. See, e.g., Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm‘n, 597 F. App‘x 342, 352 (6th Cir. 2015).
Here, the factors indicate that neither Woods nor Taylor deserves absolute judicial immunity.
1.
Understanding why requires a brief overview of the state agency and proceedings at issue. Woods and Taylor are executive officials in Kentucky‘s Department of Alcoholic Beverage Control. At the time, Woods was the malt beverage administrator and Taylor was (and still is) the Commissioner, which means they‘re two of the three members on the Department‘s three-member board. (The third member, the distilled spirits administrator, isn‘t at issue.)
As board members, Woods and Taylor wield significant powers. Relevant here, they can revoke alcohol licenses for licensees who violate state statutes or regulations. These violations include selling illegal beverages on licensed premises, making false statements in a license application, failing to pay license fees, being convicted of a felony or a misdemeanor attributable to the use of intoxicating beverages, not paying excise taxes, operating or permitting the operation of gambling on licensed premises, or selling drugs on licensed premises.
When revoking a license, the board must give the licensee a statement of the causes for its proposed revocation.
2.
Woods and Taylor don‘t merit judicial immunity. Why? Three out of six Cleavinger factors cut in Cooperrider‘s favor. A fourth arguably does as well. All told, Woods and Taylor serve as prosecutor and decisionmaker, aren‘t safe from political influence, and don‘t follow
precedent. Thus, both by counting factors and through a holistic analysis, these individuals aren‘t much like judges at all.
Start with the first factor. Courts assess the need to ensure that the individual can perform his functions without harassment or intimidation. Cleavinger, 474 U.S. at 202. Here, there‘s no dispute that state officials making alcohol licensing decisions should be able to do their jobs without facing harassment. They decide cases that “are every bit as fractious as those which come to court.” Butz, 438 U.S. at 513. So the first factor cuts against Cooperrider.
Next, consider the second factor, the presence of safeguards that reduce the need for private damages to control unconstitutional conduct. Here, there are some safeguards. There‘s a right to discovery, to compel witnesses, and to conduct cross-examination. See generally
So does the third prong. Here, the question is whether Woods and Taylor have “insulation from political influence.” Id. at 202. Courts analyzing whether someone is insulated from political influence apply a functional approach. See, e.g., Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir. 1984). They look at whether the individuals are appointed, who makes the appointments, and whether the appointees serve for a defined period or at the pleasure of a political actor. See id. Here, the governor appoints the board members.
serves at the commissioner‘s pleasure. They lack the same safeguards against political influence Cleavinger prioritized. As in Cleavinger, the board isn‘t a “neutral and detached” hearing body because it‘s made up of individuals appointed and removable at will by the governor. 474 U.S. at 203 (citation omitted). What‘s more, Cooperrider alleges that the board overrode the hearing officer, and neither Woods nor Taylor have rebutted that point on appeal or provided transcripts from the hearing itself. Thus, taking Cooperrider‘s allegation
The fourth prong also favors Cooperrider. See id. at 202. In Butz, the Court explained that precedent is one feature of the judicial process that “tend[s] to enhance the reliability of information and impartiality of the decisionmaking process.” 438 U.S. at 512. In Kentucky, the Department conducts revocation proceedings “in accordance with KRS Chapter 13B.”
The fifth prong cuts against Cooperrider. Here, courts look at whether the administrative process is adversarial. Cleavinger, 474 U.S. at 202. This one is. Why? Because an individual‘s right to notice, chance to respond and present testimony, cross-examine witnesses, and so on, are all indicators of adversariness. Id. at 206. And here, Cooperrider had the chance to do all those things. Thus, the process was adversarial.
Finally, courts consider whether any error was correctable on appeal. Cooperrider‘s case presents a close call on this prong. While some judicial review of the board‘s decision is available, it is “confined to the record” absent fraud or misconduct.
93 F.4th 374, 380 (6th Cir. 2024). Those protections are absent here. All told, this factor is a close call, but tilts towards Cooperrider.
On balance, three of the Butz and Cleavinger factors favor Cooperrider, two cut against him, and one is a close call. In such a circumstance, we “call this close question in favor” of Cooperrider. Flying Dog, 597 F. App‘x at 352.
3.
Rather than apply Cleavinger, the majority turns to Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en banc).4 But Watts is not to the contrary. There, our en banc court considered whether quasi-judicial absolute immunity protected members of a state medical licensing board that revoked a physician‘s license. We conducted an exhaustive survey of caselaw about quasi-judicial immunity dating to 1771. Id. at 272. And, applying Cleavinger‘s factors, we concluded that the medical board consisted of “independent professionals” who are “at
Watts involves a different state, different board, and different rules. In each case, we must conduct the Cleavinger analysis anew. Two of Watts’ factors are relevant here. Start with the first factor, which Watts said required looking at whether someone is “akin to” a judge. Id. at 278. The administrators here don‘t look much like judges. In the past, courts have reserved that label for officials who have removal protections, serve fixed terms, and aren‘t employees of a party to the case. See, e.g., Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1422 (6th Cir. 1996). Here, both Taylor and Woods are state employees—subordinate to the governor. They don‘t have removal protections and don‘t serve fixed terms. Thus, they don‘t look much like judges at all. What‘s more, merely focusing on the power to sit at the helm of administrative hearings
risks expanding absolute immunity‘s strong medicine. And at a minimum, courts should not extend absolute immunity to state officials in the absence of “the most convincing showing that the immunity is necessary.” Imbler v. Pachtman, 424 U.S. 409, 434 (1983) (White, J., concurring in judgment). Taylor and Woods haven‘t made that showing.5
Watts‘s third prong also cuts towards Cooperrider, although it remains a close call. The majority says “a number of” regulatory safeguards protect individuals subjected to Kentucky‘s proceedings. Maj. Op. at 14. These include notice and a right to legal counsel, among others. See
Taken together, a close look at Kentucky‘s procedures suggests that, even under the majority‘s reading of Watts, Cooperrider has shown the officials shouldn‘t get absolute immunity.
4.
Taylor and Woods claim that since they‘re also partly prosecutors, they are entitled to the absolute immunity our court normally affords to prosecutors. But Taylor and Woods are not entitled to that immunity either. While there‘s little doubt that prosecutors can enjoy absolute immunity if they‘re responsible for initiating
“decision to proceed with a case is subject to scrutiny in the proceeding itself.” Butz, 438 U.S. at 516. As the Supreme Court outlined in Butz, a respondent needs the chance to “present his evidence to an impartial trier of fact and obtain an independent judgment as to whether the prosecution is justified.” Id. But that didn‘t happen here, since Taylor and Woods were also the final deciders as to whether Cooperrider could keep his alcohol license. Taylor and Woods served as judge, jury, and enforcer. That combination of executive and judicial functions is concerning, to say the least. Cf. The Federalist No. 47, at 298 (James Madison) (Clinton Rossiter ed., 2003). To cloak its exercise with absolute immunity would be alarming.
IV.
Besides its ruling on absolute immunity, I join the majority opinion. The majority correctly follows Supreme Court precedent in (1) holding that the district court erred in finding that the defendants deserved qualified immunity and (2) finding that Cooperrider didn‘t plausibly plead a substantive due process violation under Supreme Court precedent. I write separately to emphasize several points.
A.
First, qualified immunity. Qualified immunity is less potent than absolute immunity. It doesn‘t protect officials from suits seeking injunctive relief, and even when it does apply, it shields defendants from liability for monetary damages only if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Clearly established” means that the law is so clear at the time of an incident that every reasonable officer would understand that his conduct broke the law. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). While qualified immunity isn‘t quite as robust as the absolute variety, it‘s still potent.
1.
I agree with the majority that the defendants do not enjoy qualified immunity. But I disagree with the idea that timing has anything to do with the decision. While the majority correctly holds that the district court erred in finding that the defendants deserved qualified
immunity, it‘s important to remember that courts have the power to evaluate qualified immunity claims at the motion to dismiss stage.
In recent years, the timing of qualified immunity determinations has generated considerable confusion. On the one hand, judges have explained that an officer‘s “entitle[ment] to qualified immunity is a threshold question to be resolved at the earliest possible point.” Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003). And we‘ve said the motion to dismiss stage is just such a moment. Brown v. Giles, 95 F.4th 436, 441 (6th Cir. 2024). On the other hand, other judges have reasoned that the appropriate point is “usually summary judgment and not dismissal.” See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015). The majority falls into this latter camp, asserting that it‘s inappropriate to make such a determination at the motion to dismiss stage.
But that‘s incorrect. How so? Qualified immunity isn‘t a factual question. Instead, at the motion to dismiss stage, a court should accept the facts in the plaintiff‘s complaint as true and consider whether the defendant violated clearly established constitutional rights. See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 626 (6th Cir. 2019); Marvaso v. Sanchez, 971 F.3d 599, 614 (6th Cir. 2020)
B.
Finally, Cooperrider‘s substantive due process claim. After the majority applied the doctrines of absolute, qualified, and sovereign immunity, it determined Cooperrider had only one claim left: his argument that the defendants ignored state law and deprived him of a protectable liberty interest in violation of the Constitution when they took away his alcohol license. This claim survived this far because qualified immunity only shields the defendants from monetary damages, and Cooperrider seeks injunctive relief on this front. Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001).
The majority was correct to conclude that Cooperrider‘s substantive due process claims fall short. Why? He failed to plead a claim that the enforcement scheme was unconstitutionally arbitrary or conscience-shocking.
I agree that Cooperrider failed to state a claim on which relief could be granted, but write separately to emphasize that substantive due process is a judge-made doctrine that, if used at all, should apply only to rights well-grounded in American history and tradition.
Substantive due process, of course, is an oxymoron. Leave it to lawyers to figure that a constitutional provision regulating the process by which substantive rights can be infringed places substantive constraints on government. As John Hart Ely famously remarked, substantive due process is “a contradiction in terms—sort of like ‘green pastel redness.’” John Hart Ely, Democracy and Distrust 18 (1980). Yet according to the judge-made doctrine of substantive due process, some government conduct is illegal regardless of whether the Fifth or Fourteenth Amendment‘s procedural guarantees were violated. Washington v. Glucksberg, 521 U.S. 702 (1997). Although the Supreme Court has found that plaintiffs may bring claims based on violations of their supposed substantive due process rights, any deviation from the Constitution‘s text should be minimal. That‘s why any substantive due process right must be “deeply rooted in this Nation‘s history and tradition” and “implicit in the concept of ordered liberty.” Id. (citations omitted). Asserted “rights” that fail this test—much less those that are “entirely unknown in American law”—don‘t pass muster. See Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215, 231 (2022). A claim‘s “novelty” provides “reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 (1993). The Glucksberg framework provides a key limiting principle for an atextual doctrine that‘s not grounded in law. Cf. L. W. by & Through Williams v. Skrmetti, 73 F.4th 408, 416 (6th Cir. 2023).
V.
During the coronavirus pandemic, Americans turned to their national, state, and local governments for help. We “sought answers less from ourselves, our friends, and our neighbors and more from central authorities.” Neil Gorsuch & Janie Nitze, How Covid-19 Restrictions Created Winners and Losers, National Review, https://www.nationalreview.com/2024/08/how-covid-era-government-restrictions-damaged-the-rule-of-law/.
On the economic front, the government‘s response to COVID harmed people like Mr. Cooperrider. While white-collar folks could work from the comfort of their living room, service workers and others were forced to stay home, and thus, effectively laid off.9 Understandably frustrated with the inequity and what he believed were the government‘s disastrous policies, Cooperrider spoke out. And if the government retaliated against him for it, he should have his day in court.
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With these caveats, I respectfully concur in the majority‘s opinion except as to its analysis of whether Woods and Taylor enjoy absolute immunity.