E. Stephen DEAN, Plaintiff-Appellant, v. Thomas K. BYERLEY, Defendant-Appellee.
No. 02-1421.
United States Court of Appeals, Sixth Circuit.
Argued: Aug. 1, 2003. Decided and Filed: Jan. 8, 2004.
354 F.3d 540
Before DAUGHTREY, MOORE, and SUTTON, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SUTTON, J. (pp. 559–68), delivered a separate dissenting opinion.
MOORE, Circuit Judge.
This appeal raises an important question concerning the scope of an individual‘s right to engage in targeted residential picketing in the wake of the Supreme Court‘s decision in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). We conclude that Frisby did not place in question an individual‘s clearly established right to engage in peaceful targeted residential picketing; rather it carved out an exception to this right, allowing the government to prohibit such picketing through a narrowly tailored and applicable time, place, or manner regulation.
Plaintiff-Appellant, E. Stephen Dean (“Dean“), appeals the district court‘s order granting summary judgment to Defendant-Appellee, Thomas K. Byerley (“Byerley“), the Regulation Counsel and Director of Professional Standards Division for the State Bar of Michigan. Dean filed this action under
Contrary to the district court, we conclude that Dean created a genuine issue of material fact as to whether Byerley acted under color of state law. We further hold that Dean had a constitutionally protected right to engage in targeted picketing on the street in front of Byerley‘s residence. As result, we also reach the issue of whether Byerley is entitled to an immunity defense. For the following reasons, we REVERSE the district court‘s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
After graduating from the Thomas Cooley School of Law at age 60, Dean submitted his application for admission to the State Bar of Michigan in December 2000. When Dean delivered his application to the Executive Director of the State Bar of Michigan, Dean expressed concern that it was incomplete and explained that he was unable to recall the addresses of all of his prior residences. Dean alleges that subsequently State Bar of Michigan employees repeatedly requested additional information and refused to accept his explanation that he had done his best to obtain the required information, but that he could not remember the addresses of residences he had lived in over twenty-five years ago. After this interaction with the State Bar of Michigan employees, but before the Bar made a decision regarding Dean‘s bar application and before Dean took the bar exam, Dean began picketing to publicize the treatment he received from the State Bar of Michigan employees. Initially, Dean and two individuals hired by Dean picketed the State Bar of Michigan building. Then, on March 27, 2001, Dean and the hired individuals extended their picketing to Byerley‘s residence.
On the morning of March 27, 2001, Dean and the hired individuals picketed near Byerley‘s residence. Dean alleges that he and the hired individuals only picketed on the street in front of Byerley‘s residence. Byerley, on the other hand, alleges that Dean and the hired individuals also picket-
Dean further alleges that while he and the hired individuals were picketing near Byerley‘s residence, a confrontation occurred between Byerley and the picketers. Dean alleges that during the confrontation, Byerley told Dean “that because of his picketing the State Bar of Michigan and his home [Dean] would never be allowed to practice law in the state of Michigan. [Byerley] then stated that he was going to have [Dean] arrested for picketing.” Second Am. Compl., Aug. 23, 2001, ¶¶ 13, 14. Dean also alleges that Byerley twice “intentionally drove his automobile directly towards [Dean].” Id. ¶¶ 11, 18. After the confrontation, Dean and the hired individuals left the area. Since the confrontation, Dean has not picketed near Byerley‘s residence or the State Bar of Michigan building.
Two days after the incident, on March 29, 2001, Byerley sent Dean a letter pertaining to the confrontation. This letter was written on State Bar of Michigan letterhead. In its entirety, the letter reads:
As you know, you and two other individuals were outside of my private residence on Tuesday, March 27, 2001 carrying signs. Although you have a right to exercise your First Amendment rights on public property, you do not have that right on private property.
On March 27 I verbally told you that you were on private property and that if you did not immediately leave I would call the police. This letter memorializes that statement. You are put on formal notice that you are never welcome on my private property and that if you trespass again I will ask that you be arrested.
Similarly, you are notified that you are not to enter the private property of any other State Bar of Michigan employee or officer.
I fully expect that you will not repeat your trespass.
Def.‘s Br. in Supp. of Mot. for Summ. J., Ex. E.
On April 4, 2001, Dean commenced a pro se action against Byerley in the United States District Court for the Western District of Michigan. In this action, Dean brought a § 1983 claim, alleging that Byerley violated his First Amendment rights by threatening that Dean would never practice law in Michigan due to his picketing. Dean also brought two state-law assault claims, alleging that Byerley committed assaults by twice driving his car at Dean, and a state-law libel claim, alleging that Byerley committed libel by sending to third parties copies of his letter to Dean, in which he stated that Dean had trespassed. In his complaint, Dean requested approximately $2 million in compensatory and punitive damages and “equitable relief in the form of an order from [the district court] that Defendant refrain from interfering with Plaintiff‘s rights of free speech by threats of bodily harm or by threat of arrest.” Second Am. Compl., Aug. 23, 2001, ¶ 45.
In August 2001, Byerley filed a motion for summary judgment. A magistrate judge concluded that summary judgment was proper based upon his determination that Dean did not have a constitutionally protected right to engage in targeted residential picketing. The magistrate judge recommended that the district court grant summary judgment to Byerley on Dean‘s § 1983 claim, and dismiss Dean‘s state-law claims pursuant to
II. ANALYSIS
A. Standard of Review
This court reviews de novo the district court‘s grant of summary judgment. Waters v. City of Morristown, 242 F.3d 353, 358 (6th Cir. 2001). Summary judgment is proper when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
B. Section 1983 Claim
1. First Amendment
Dean filed this action under
The parties dispute whether Dean had a constitutionally protected right to engage in targeted picketing on the street in front of Byerley‘s residence. The district court did not reach this issue and instead granted Byerley‘s motion for summary judgment based upon its finding that Byerley did not act under color of state law. On appeal, Dean argues that, in the absence of an applicable time, place, or manner restriction, Dean had a constitutionally protected right to engage in targeted residential picketing. See Appellant‘s Br. at 16. Byerley counters that Dean did not have a constitutionally protected right to engage in targeted residential picketing, regardless of whether there is an applicable time, place, or manner restriction. See Appellee‘s Br. at 18-20.
We agree with the parties that there is no applicable Michigan statute that bans all targeted residential picketing. It is true that
When construing a statute, we must look at the whole law and effectuate the legislature‘s intent. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). As the Supreme Court has instructed, “We believe it fundamental that a section of a statute should not be read in isolation from the context of the whole Act. . . . [W]e must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.”2 See id. (citations omitted); see also Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426, 434, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002). Therefore, the ban on private residential picketing contained in
private residential picketing applies only to labor picketing. The preamble declares that the Act regulates the behavior of employees and employers engaged in labor disputes.
AN ACT to create a commission relative to labor disputes, and to prescribe its powers and duties; to provide for the mediation and arbitration of labor disputes, and the holding of elections thereon; to regulate the conduct of parties to labor disputes and to require the parties to follow certain procedures; to regulate and limit the right to strike and picket; to protect the rights and privileges of employees, including the right to organize and engage in lawful concerted activities; to protect the rights and privileges of employers; to make certain acts unlawful; and to prescribe means of enforcement and penalties for violations of this act.
See
It shall be unlawful (1) for any person or persons to hinder or prevent by mass picketing, unlawful threats or force the pursuit of any lawful work or employment, (2) to obstruct or interfere with entrance to or egress from any place of employment, (3) to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance, or (4) to engage in picketing a private residence by any means or methods whatever: Provided, That picketing, to the extent that the same is authorized under constitutional provisions, shall in no manner be prohibited. Violation of this section shall be a misdemeanor and punishable as such.
The dissent contends that if
Dean was not engaged in labor picketing when the confrontation at issue occurred; therefore,
Byerley has not identified any other Michigan law that bans residential picketing. Thus, proper resolution of this dispute turns on whether there is a constitutionally protected right to engage in targeted residential picketing in the absence of an applicable time, place, or manner restriction.
Over sixty years ago, the Supreme Court declared that use of the streets for assembly and communication is a right held by U.S. citizens pursuant to the First Amendment. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The Supreme Court has also declared that “as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Although the Supreme Court has recognized that the government may regulate this use of the streets to ensure general comfort and order, the Court has warned that the government must not use such regulations to abridge or deny that right. Hague, 307 U.S. at 516, 59 S.Ct. 954. The Supreme Court considers streets and sidewalks to be public fora for purposes of First Amendment scrutiny, and the Court has limited the government‘s ability to restrict First Amendment rights in such public fora. Grace, 461 U.S. at 177, 103 S.Ct. 1702.
In Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the Supreme Court discussed the limits on the government‘s ability to regulate use of streets for assembly and communication. The Court upheld against a facial challenge an ordinance adopted by Brookfield, Wisconsin “that completely bans picketing ‘before or about’ any residence.” Id. at 476, 108 S.Ct. 2495. The Court admonished that streets are traditional public fora; therefore, regulations of assembly and communication on streets must satisfy the appropriate level of scrutiny. Id. at 481, 108 S.Ct. 2495. As the Court stated,
In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Id. (quoting Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). The Court adopted a narrowing construction of the ordinance at issue and concluded that it only banned targeted picketing directed at a single residence. Id. at 482-83, 108 S.Ct. 2495. The Court then held that the ordinance, narrowly construed, satisfied the scrutiny applicable to time, place, and manner regulations. Id. at 487-88, 108 S.Ct. 2495.
Byerley points to passages in Frisby discussing the government‘s interest in protecting the privacy of the home to support his argument that there is no constitutionally protected right to engage in targeted residential picketing. Appellee‘s Br. at 18-20. For example, Byerley quotes the following passage from Frisby:
The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. In such cases “the flow of information [is not] into . . . household[s], but to the public.” Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.
Appellee‘s Br. at 19 (quoting Frisby, 487 U.S. at 486, 108 S.Ct. 2495) (citations omitted). Byerley acknowledges that Frisby does not preclude “targeted residential picketing in the absence of an ordinance or state law prohibiting it,” but nonetheless
Contrary to Byerley‘s argument, Supreme Court precedent makes it clear that citizens have the constitutional right to use streets for assembly and communication. See Hague, 307 U.S. at 515-16, 59 S.Ct. 954. Although the government may restrict that right through appropriate regulations, that right remains unfettered unless and until the government passes such regulations. See id. at 516, 59 S.Ct. 954. While there are passages in Frisby that discuss the government‘s interest in protecting the privacy of the home, Frisby does not support the proposition that the right to residential privacy automatically trumps the right to engage in targeted residential picketing. See Frisby, 487 U.S. at 486-88, 108 S.Ct. 2495. Rather, those passages in Frisby address one of the requirements for upholding time, place, and manner regulations, i.e., that the regulations “serve a significant government interest.” Id. at 481, 108 S.Ct. 2495 (quoting Perry, 460 U.S. at 45, 103 S.Ct. 948) (internal quotation marks omitted). Therefore, we conclude that the First Amendment protects the right to engage in peaceful targeted residential picketing in the absence of a narrowly tailored time, place, or manner regulation that meets the requirements laid down in Frisby.
2. Retaliation Claim
Dean has created a genuine issue of material fact as to whether Byerley violated Dean‘s First Amendment rights during the March 27, 2001 confrontation. While Dean does not explicitly label his claim as one of retaliation, his allegation that Byerley threatened that Dean would never practice law in the state of Michigan due to his picketing and his allegation that Byerley threatened to have the picketers arrested make it clear that Dean is asserting a garden-variety retaliation claim. This court has held that a § 1983 claim can be predicated upon a state official‘s retaliation against an individual for exercising his or her First Amendment rights. Thaddeus-X v. Blatter, 175 F.3d 378, 394-95 (6th Cir.1999) (en banc). “A retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff‘s protected conduct.” Id. at 394.
When the confrontation occurred, Dean was allegedly picketing on the street in front of Byerley‘s residence, which is conduct protected by the First Amendment. Dean alleges that during the confrontation, Byerley threatened that Dean would never practice law in the state of Michigan due to his picketing and Byerley threatened that he would have the picketers arrested.5 A reasonable finder of fact
3. Under Color of State Law
To satisfy the second requirement of his § 1983 claim, Dean must show that Byerley acted under color of state law. The Supreme Court has held that “[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.‘” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). The Supreme Court has further held that “[s]tate employment is generally sufficient to render the defendant a state actor.” Id. at 49, 108 S.Ct. 2250 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Thus, “[i]t is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.” Id. at 49-50, 108 S.Ct. 2250 (citing Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)).
The district court granted Byerley‘s motion for summary judgment based upon its finding that Byerley did not act under color of state law. The district court found that “[i]n expressing his anger towards [Dean‘s] conduct, [Byerley] was not performing some duty of his office or exercising his official responsibilities. Rather, [Byerley‘s] conduct was that of a private citizen.” Dist. Ct. Op. at 3. The district court found that Byerley merely asserted his right to seek to have Dean arrested for trespassing on private property and his right to report a complaint to the State Bar of Michigan regarding Dean‘s character and fitness. The district court concluded that all persons possess these rights, and thus that Byerley did not need state authority to act as he did.
The Supreme Court has held, however, that a defendant in a § 1983 action may still act under color of state law even though a private citizen could have taken the same action as that taken by the defendant. Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964). More specifically, the Supreme Court has held that “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might
Byerley possessed state authority pursuant to his status as Regulation Counsel for the State Bar of Michigan.6 Dean has presented evidence that Byerley purported to act under that state authority. In his complaint, Dean alleged that during the March 27, 2001 confrontation, Byerley stated “that because of [Dean‘s] picketing the State Bar of Michigan and [Byerley‘s] home [Dean] would never be allowed to practice law in the state of Michigan.” Second Am. Compl., Aug. 23, 2003, ¶ 13. Then, on March 29, 2001, Byerley sent a letter on State Bar of Michigan letterhead, pertaining to the March 27, 2001 confrontation. In that letter, Byerley stated that if Dean trespassed on Byerley‘s property again, Byerley would request that Dean be arrested. The letter further stated that Dean was “not to enter the private property of any other State Bar of Michigan employee or officer.” Def‘s Br. in Supp. of Mot. for Summ. J., Ex. E.
Additionally, Byerley has never explicitly denied Dean‘s allegation that Byerley acted under color of state law. In his answer, Byerley responded to Dean‘s allegation that Byerley acted under color of state law by admitting “that Plaintiff‘s allegations against Defendant arise from Defendant‘s status as Regulation Counsel for the State Bar of Michigan.” Answer to First Am. Compl., June 20, 2001, ¶ 6. In neither Byerley‘s motion for summary judgment and his brief in support of that motion nor his two supplemental briefs in support of that motion does Byerley deny that he was acting under color of state law. Finally, on appeal, Byerley does not even argue that he was not acting under color of state law.7 Because Dean presented evidence demonstrating that Byerley acted under color of state law and because Byerley has never argued to the contrary, the district court should not have granted summary judgment based upon its finding that Byerley did not act under color of state law.
C. Immunity
1. Absolute Immunity
Even if the plaintiff in a § 1983 claim establishes that the defen-
Although Byerley does not expressly argue on appeal that he is entitled to the defense of absolute immunity, he does rely on case law addressing the scope of absolute immunity and quotes a long passage from one of those cases pertaining to absolute immunity.10 Appellee‘s Br. at 29. Also, Byerley expressly raised the defense of absolute immunity during the hearing on his motion for summary judgment, after which the parties both submitted supplemental briefs on the issue. Summ. J. Hr‘g Tr. at 5-7; R. at 56-57. Because Byerley may be asserting the defense of absolute immunity, we will address the issue.
“The burden of justifying absolute immunity rests on the official asserting the claim.” Harlow, 457 U.S. at 812, 102 S.Ct. 2727; see also Lomaz, 151 F.3d at 497. Therefore, Byerley had the burden of proving that he is entitled to absolute immunity. During the hearing on Byerley‘s motion for summary judgment, Byerley argued that “[t]he Supreme Court of the State of Michigan in Rule 15 of the rules concerning the State Bar of Michigan, granted absolute immunity to state bar staff for conduct arising out of the performance of their duties.” Summ. J. Hr‘g Tr. at 5. Later, in his supplemental brief, Byerley conceded that state rule 15 is irrelevant to the scope of his immunity in this action because the scope of immunity in a § 1983 action is determined by federal law. Def‘s Second Supplemental Br. in Supp. of Mot. for Summ. J. at 12; see also Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); Wood v. Strickland, 420 U.S. 308, 314, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Byerley was correct to retreat from his reliance on state rule 15 because the Supreme Court has held that state-law immunities are irrelevant in § 1983 actions. Howlett, 496 U.S. at 376, 110 S.Ct. 2430. Furthermore, in a recent decision, this court held explicitly that state rule 15 does not immunize employees of the State Bar of Michigan from liability in § 1983 actions because state-law immunities cannot be used to defeat § 1983 claims. Dubuc v. Michigan Bd. of Law Exam‘rs, 342 F.3d 610, 617 (6th Cir.2003). Nonetheless, Byerley argued he is entitled to absolute immunity because the “Supreme Court of Michigan delegated to the State Bar of Michigan the responsibility to investigate the Character and Fitness of all applicants to the Bar . . . [and t]his is an inherently judicial function.” Def.‘s Second Supplemental Br. in Supp. of Mot. for Summ. J. at 2.
In Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997), cert. denied,
In Barrett, this court was faced with the question of whether a judge was entitled to absolute immunity from liability for actions she took in response to a litigant‘s public criticism of her. Id. at 253. The judge sent letters to prosecutors stating that the litigant was harassing her. Those letters prompted an investigation of the litigant. The judge also made statements to the news media accusing the litigant of stalking her. We determined that absolute immunity shielded the judge from liability for her letters to the prosecutors because the judge was attempting to preserve the integrity of the judicial process, which is a function related to those normally performed by an adjudicator. Id. at 258-59. Furthermore, the litigant‘s harassment stemmed from the judge‘s adverse decision against him; therefore, the litigant dealt with the judge in her adjudicative capacity. Id. at 260. However, we also determined that absolute immunity did not shield the judge from liability for her statements to the media because speaking to the media about a litigant does not preserve the integrity of the judicial process, and instead merely informs the public of the judge‘s views. Id. at 261.
In this case, the actions Byerley allegedly took in response to Dean‘s picketing are not functions normally performed by an adjudicator nor are they related to functions normally performed by an adjudicator. Although Byerley was employed as Regulation Counsel for the State Bar of Michigan and although the Bar is merely an extension of the Michigan Supreme Court for purposes of deciding whether to grant or deny Bar applications, it is clear on the record as it now stands that Byerley was not performing an adjudicative function during the March 27, 2001 confrontation.12 Dean alleges that in response to his picketing, Byerley threatened that Dean would never practice law in the state of Michigan and threatened to have the picketers arrested. Neither of these actions are related to the decision of whether to grant or deny Dean‘s Bar application. While reporting an applicant‘s conduct to the police and the Bar might be related to the functions normally performed by an adjudicator, the actions Dean alleges that Byerley took were of a different function and nature. Byerley‘s alleged actions were in the form of a threat for the purpose of intimidating Dean so that Dean would cease picketing. Byerley‘s alleged
2. Qualified Immunity
Byerley has expressly raised the defense of qualified immunity. Appellee‘s Br. at 27. Byerley argues that his alleged threats during the March 27, 2001 confrontation did not violate Dean‘s clearly established federal rights because targeted residential picketing is not a constitutionally protected activity. In Byerley‘s view, Frisby established that there is no right to engage in targeted residential picketing. Appellee‘s Br. at 28. Although Dean does not expressly refute Byerley‘s defense of qualified immunity in his appellate brief, Dean repeatedly argues that, in the absence of a time, place, or manner restriction, citizens have a constitutionally protected right to engage in targeted residential picketing. Also, during the hearing on Byerley‘s motion for summary judgment, Dean expressly refuted Byerley‘s defense of qualified immunity. Summ. J. Hr‘g. Tr. at 14-18.
This court conducts a three-step analysis of qualified immunity claims. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quotation omitted). Although the policy of this circuit is to resolve immunity questions at the earliest possible stage of the litigation, “[s]ummary judgment is not appropriate if there is a genuine factual dispute relating to whether [Byerley] committed acts that allegedly violated clearly established rights.” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir.), cert. denied, 534 U.S. 1071, 122 S.Ct. 678, 151 L.Ed.2d 590 (2001); Mays v. City of Dayton, 134 F.3d 809, 813 (6th Cir.), cert. denied, 524 U.S. 942, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).
On appeal, Dean argues that Byerley‘s alleged actions during the March 27, 2001 confrontation violated his clearly established First Amendment rights. Appellant‘s Br. 16–19. In his complaint, Dean alleged that Byerley threatened that Dean would never practice law in the state of Michigan due to his picketing, and that this threat referred to Dean‘s picketing in front of Byerley‘s house as well as to Dean‘s picketing at the State Bar of Michigan building. In his complaint, Dean also alleged that Byerley threatened to have the picketers arrested. At the hearing on Byerley‘s motion for summary judgment, Dean presented a sworn deposition from Larry Doolittle (“Doolittle“), one of the hired picketers, detailing the March 27, 2001 confrontation.13 In his complaint,
As discussed in Part II. B. 1. above, Dean had a constitutionally protected right to engage in peaceful targeted residential picketing, in the absence of an applicable time, place, or manner regulation, and retaliation against Dean for exercising that right would violate Dean‘s First Amendment rights. Therefore, Dean has satisfied the first hurdle necessary to survive summary judgment based upon qualified immunity by pointing to evidence showing that Byerley violated Dean‘s First Amendment rights. The Sixth Circuit precedent holding that a § 1983 claim can be predicated upon retaliation for exercising First Amendment rights and the Supreme Court precedent holding that peaceful picketing is constitutionally protected predate the March 27, 2001 confrontation, and thus the right to engage in peaceful targeted residential picketing, free from such retaliation, was clearly established at the time of the confrontation. See Thaddeus-X, 175 F.3d 378. Therefore, Dean has satisfied the second hurdle necessary to survive summary judgment based upon qualified immunity by showing that the constitutional right was clearly established. Finally, through his complaint and Doolittle‘s deposition, Dean has presented evidence that Byerley‘s alleged conduct was objectively unreasonable in light of Dean‘s clearly established First Amendment rights. Therefore, Dean has satisfied the third hurdle necessary to survive summary judgment based upon qualified immunity by pointing to evidence showing that what Byerley did was objectively unreasonable in light of clearly established constitutional rights.
Byerley‘s only arguments supporting his assertion that he is entitled to qualified immunity are that targeted residential picketing is not protected by the First Amendment, and that his March 29, 2001 letter demonstrates that he only objected to Dean‘s picketing on Byerley‘s private property. As discussed in Part II. B. 1. above, Dean had a clearly established right to engage in peaceful targeted residential picketing in the absence of a narrowly tailored time, place, or manner restriction. Also, Byerley never disputes, nor could he dispute, that Dean had a clearly established right to picket the State Bar of Michigan building. Finally, Byerley‘s March 29, 2001 letter, which clarified that Byerley only objected to Dean‘s picketing on Byerley‘s private property, could not undo the previous constitutional violation. Because Dean demonstrated that he had a clearly established constitutional right and pointed to evidence that shows that Byerley violated that right, Byerley is not entitled to summary judgment based upon the defense of qualified immunity.14
Dean had a constitutionally protected right to engage in peaceful targeted residential picketing in the absence of a narrowly tailored and applicable time, place, or manner regulation prohibiting such picketing. The district court erred in granting summary judgment to Byerley on the basis of its determination that Byerley did not act under color of state law during the March 27, 2001 confrontation. Additionally, we conclude that Byerley is not entitled to summary judgment based either on the defense of absolute immunity or on the defense of qualified immunity. Consequently, we REVERSE the district court‘s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
Notes
In Frisby v. Schultz, 487 U.S. 474, 481-82, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the Supreme Court accepted the district court‘s construction of the antipicketing ordinance at issue as not including an implied exception for labor picketing. The ordinance banned all residential picketing, without exception. Schultz v. Frisby, 619 F.Supp. 792, 794 (E.D.Wis.1985). An earlier version of the ordinance did in fact contain an exception for labor picketing, as an attempt to comply with a Wisconsin statute that specifies picketing is a permissible labor activity. The city, however, repealed the earlier version of the ordinance—containing the exception for labor picketing—due to concerns that the ordinance violated the First Amendment by discriminating against speech based upon its content. Schultz v. Frisby, 807 F.2d 1339, 1342 (7th Cir.1986). The district court rejected the plaintiffs’ argument that the newer version of the ordinance must contain an implied exception for labor picketing in order to comply with the Wisconsin statute. Schultz, 619 F.Supp. at 796. The district court pointed out that the legislative history clearly indicated that the ordinance did not contain such an exception. Id. The Supreme Court‘s acceptance of this refusal to imply an exception to the antipicketing ordinance did not increase the scope of conduct prohibited by the ordinance, for the ordinance already banned all targeted residential picketing.
In Boos v. Barry, 485 U.S. 312, 332-34, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), the Supreme Court held that two provisions of the District of Columbia Code did not combine to create an Equal Protection Clause violation. Section 22-1115 limited individuals’ right to congregate within 500 feet of an embassy regardless of the message they sought to convey, and § 22-1116 stated that § 22-1115 did not prohibit labor picketing. Id. at 333-34, 108 S.Ct. 1157. The Supreme Court accepted a narrowing construction of § 22-1115 as only prohibiting “congregations that threaten the security or peace of an embassy.” Id. at 333, 108 S.Ct. 1157. Therefore, the Supreme Court construed § 22-1115 as prohibiting individuals from engaging in violent congregations within 500 feet of an embassy, regardless of the message they sought to convey, and allowing all peaceful congregations. The Supreme Court then determined that § 22-1116 does not protect violent labor congregations; therefore, the statutes did not treat labor and nonlabor picketing differently. Id. The Supreme Court‘s refusal to read the labor picketing exception contained in § 22-1116 broadly so as to authorize violent labor picketing did not increase the scope of conduct prohibited by the ordinance, for § 22-1115 already banned all violent congregations.
The dissent characterizes his effort to read
Finally, in United States v. Seeger, 380 U.S. 163, 165-66, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the Supreme Court broadened the conscientious-objector exception contained in the Universal Military Training and Service Act. Interpreting the Act in this manner actually lessened the range of conduct deemed criminal, rather than increased it.
The dissent cites these cases as support for his effort to read
II. Was Defendant Acting under Color of State Law?
Dean‘s correct that Byerley acknowledged in his answer that the only reason Dean was at Byerley‘s house on the morning of March 27, 2001 was because of his status as Regulation Counsel for the State Bar, and that Dean‘s allegations arose from the events of that morning.
Even if Byerley was acting under color of state law, Dean‘s claims would be barred by governmental immunity.
Appellee‘s Br. at 25.
The immunity of participants in the judicial process stems not from the “location” of the judicial process in one branch of government or another . . . but from the “characteristics” of the process. One of these characteristics is that the controversies with which the process deals are often “intense,” and the loser, given an opportunity to do so, will frequently charge the participants in the process with unconstitutional animus; “[a]bsolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” “Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation.”
Appellee‘s Br. at 29 (quoting Watts, 978 F.2d at 273) (citations omitted).