James E. McCurdy v. Montgomery County, Ohio

such, As the rule pronounce we today

does not policy frustrate the impos- behind McCURDY, James E. Plaintiff- ing rigorous a more standard on prevailing Appellant, plaintiffs § defendants than to obtain v. attorney’s fees. holding Our does not al- COUNTY, OHIO, MONTGOMERY displace leviate or a prevailing defendant’s al., et Defendants-Appellees. burden of showing plaintiffs that the ac- vexatious, frivolous, tion was or without No. 99-3473. foundation order to obtain a reasonable United States Court of Appeals, attorney’s fee award because the mere dis- Sixth Circuit. missal plaintiffs suit will not estab- lish that the underlying claim was frivo- Argued: 4,May 2000. lous, unreasonable, groundless. See Decided and Filed: Feb. 2001. Austin, Hidden City Oaks Ltd. v. (5th Cir.1998) F.3d (citing Rowe, Hughes 15-16, 449 U.S. 173, 178-79, (1980)

S.Ct. 66 L.Ed.2d 163

(“The fact that the Court dismissed Plain-

tiffs’ suit is not itself justifi- a sufficient award.”))

cation for fee (emphasis add-

ed); also, see Anthony, 617 F.2d at 1170

(concluding plaintiffs failure to

prosecute, while sufficient support dismissal,

involuntary standing alone was

insufficient to establish as a matter of law

that the vexatious). claim was frivolous or

Therefore, the rule pronounce today

will upset the delicate balance that

Congress intended to exist between en-

couraging policy private plaintiffs

effecting vigorous vindication of civil

rights and protecting rights civil defen-

dants from the burdens of frivolous law-

suits.

CONCLUSION

We VACATE the district court’s denial

of Riser’s request for attorney’s fees and

REMAND for further proceedings consis-

tent opinion. with this

VACATED and REMANDED.

Zach (argued briefed), Zunshine and Co- lumbus, OH, for Plaintiff-Appellant. Michael (argued briefed), Russell and Gregory Dunsky, P. Office of Prosecut- ing Attorney the County of Montgom- others, including his brother-in-law several OH, Defendants-Appel- Dayton, ery, acquaintance Heath Roger Smith lees. McCurdy’s apartment Goolsby, went to COLE, JONES, ENGEL, Before McCurdy had consumed alco- play cards. Judges. Circuit party and the hol both at the clubhouse apartment. Around five game card in his J., JONES, delivered R. NATHANIEL son, McCurdy and his morning, in the COLE, court, in which opinion of Jr., accompanied Smith James 522-27), ENGEL, J., (pp. J. joined. them off. Goolsby to their cars to see dissenting opinion. separate delivered a men, African-Ameri- who are all The four can, minutes for about fifteen conversed OPINION by. cruiser drove when JONES, R. Circuit NATHANIEL Cole, pa- on “routine who was Officer Judge. responding any specific and not trol” McCurdy Plaintiff-Appellant James McCurdy’s apart- complaints concerning Defen- against § 1983 suit brought this area, past drove surrounding or the ment and David Cole dants-Appellees Officer slowly. After company very McCurdy and they claiming that County, Montgomery Cole, without drive-by, initial Officer this unreason- right to be free from violated his McCurdy or his provocation from any Amend- under the Fourth able seizures them. As Of- circled back towards group, him for the retaliated ment and for a second group ficer drove Cole Amendment of his First assertion words, time, he, “stopped and in his own McCurdy’s court dismissed The district few seconds and just them for observed claim after retaliation First Amendment up ... what’s attention said gain their [to] qualified for motion granting Officer Cole’s point, At that J.A. at 161. gentlemen?” a verdict jury returned immunity, and McCurdy asking ei- recalled Cole Officer Fourth McCurdy’s on for Defendants help or “can I problem?” ther “what’s then moved McCurdy Amendment claim. Cole, parked had who you?” Id. Officer law, or a new as a matter of judgment away from a short distance his car alternative, the district and trial in the men, McCurdy and asked hear could not in their entire- these motions court denied had said. Accord- repeat what he him to reasons, RE- we following ty. For the Cole, then de- McCurdy ing to Officer court’s denial of both the district VERSE manded, you want?” the fu*k do “what as a mat- judgment motion for Id. claim Amendment ter of law on his Fourth exited his vehicle Cole then Office immunity on grant and its According to Offi- McCurdy. approached Amendment retaliation McCurdy’s First McCurdy as Cole, questioned he then cer for fur- REMAND Accordingly, claim. in ad- language profane he used why proceedings. ther McCurdy reiterated After dressing him. for Officer the reason as to queries his I. that it asserted the officer approach, Cole’s if going on” job to “see what’s 6, 1996, his McCurdy hosted was July On at 5:00 in here “somebody’s standing out Dwayne nephew, his party for graduation According to morning.” J.A. at 162. Smith, just from graduated who had Cole, exclaimed McCurdy then party was Officer University. The Wright State job?” and Officer your fu*k apartment “what in the held at the clubhouse Smith, Goolsby, him, as well as asked resided Cole McCurdy then complex where Jr., identification. McCurdy Centerville, ended around party The Ohio. standing that he was McCurdy responded patrons and while most midnight, home, was without that he time, and in front of McCurdy at that went home identification, African-Americans, and that neither he nor his two remained in the jury venire from which a display any. eight friends needed to needed Initially, to be selected. an eight-person McCurdy Officer Cole next asked if he jury was seated without black mem- drinking night. Upon had been re- McCurdy bers. After exercised the sec- affirmative, sponding fifty-three ond of his two peremptory challenges, and year go old was ordered to back inside his County passed after the exercising its house lacked because he identification and first, Sylvia African-American Williams was, view, “obviously in- Officer Cole’s was seated on the jury. point, At that toxicated.” Id. at 162-163. re- peremptory used its last to excuse admonishment, jected Officer Cole’s claim- Williams, McCurdy objected that the ing go that he did not have to inside and strike racially motivated. Without that, furthermore, he did not have to do Williams, questioning engaging a col- “sh*t” that Officer ordered. Cole Id. at loquy with either McCurdy’s or the Coun- 163. objec- After reiterated his counsel, ty’s rejected the district court tions to purported Officer’s Cole harass- McCurdy’s objection, crediting the Coun- ment, if Officer Cole warned that he did ty’s assertions that Williams’ demeanor not return to his home immediately, he showed that she was disinterested in serv- jail. would be arrested and taken to ing jury. on the McCurdy questioned grounds then the on commenced, After the trial the district which he could be arrested. The officer granted qualified court immunity to Officer responded by simply repeating that if he Cole on McCurdy’s First Amendment re- inside, did not go he would be arrested. taliation claim. The court concluded that again, McCurdy Once refused to return to it was not established that the First home, whereupon Officer Cole him told prohibited Amendment an officer from ef- step to the place side and his hands on fectuating otherwise valid if arrest McCurdy the wall. again questioned the partially officer was by motivated a desire grounds for specifying arrest. Without retaliate the arrestee’s assertion legal arrest, the basis for the Officer Cole of First Amendment See J.A. at proceeded to him custody. take into Offi- proceeded 36-36. The trial cer Cole subsequently brought McCurdy claims, remaining jury and the returned a precinct to the station and arrested him verdict favor of Defendants. ConductyPublic for Disorderly Intoxication then judgment moved for notwithstanding and Obstructing verdict, Official alternative, Business under inor a new 2917.11(B)(2) 2921.31, §§ Ohio trial. McCurdy Rev.Code & claimed that Officer Cole did probable him, not have respectively. cause to arrest essentially and renewed a challenge to the McCurdy subsequently sued Officer district court’s immunity judg- Cole Montgomery County, asserting ment re-asserting his First Amendment inter alia that he was arrested in violation retaliation claim. McCurdy also re-assert- of both the First and Fourth Amendments. ed his claim that the County exercised one During jury proceedings, McCurdy con- of its peremptories in violation of the tended that County illegally exercised Equal Protection Clause. The district one of peremptory its challenges on the court denied McCurdy’s motion in its en- basis of race. Originally, there were three tirety, timely ap- filed this black members among twenty-six per- peal. son venire. See J.A. at 37. One black venireperson was excused for cause be- II. cause he was connected to the A. office, Sheriffs and three white members were also excused for cause. With these appeal, On McCurdy first asserts dismissals, twenty-two persons, including that the district court erred in denying his

517 requires that officers cause further ble notwithstanding judgment motion objective facts concrete and articulate alternative. verdict, in the new trial or conduct. they infer criminal a motion from which denial of court reviews This novo, Strickland, 144 F.3d de States v. matter of law See United as a judgment Co., (6th Cir.1998). Moreover, 412, 53 Steamship 415 American v. see Cook (6th Cir.1995), the denial of the facts rele objective reasonableness 740 F.3d abuse of probable trial for an to a cause determination for new vant of a motion Owens-Corning in subjective Barnes v. and the officer’s paramount, See discretion. (6th F.3d 820 v. irrelevant. See Whren Fiberglas Corp., tentions are court, Cir.2000). must States, 806, 813, we the district Like S.Ct. U.S. United (1996) “unless this Court jury’s (“Subjective verdict affirm the 135 L.Ed.2d conviction and firm ordinary, proba the definite play ‘is left with no role in intentions injustice plain resulting analysis.”); a mistake Fourth Amendment ble-cause committed,’ ‘is ... the verdict States, has been 517 U.S. Ornelas v. United ” v. (1996) all reason.’ Schoonover contrary 1657, 134 696, 116 L.Ed.2d S.Ct. 147 F.3d Corp., Freightways Consolidated is assessed (holding omitted). Cir.1998) (citation (6th 492, 494 objectively rea perspective of an from the appropri of law “is as a matter Judgment officer). assessing objec sonable absence complete only when there is ate however, reasonableness, must ac tive verdict, that no so support the of fact to to draw ability of officers count for for the have found juror could reasonable ex professional based on their inferences City party.” Pouillon nonmoving 700, 116 1657. id. at S.Ct. periences. See Cir.2000). (6th Owosso, 206 F.3d Here, Cole arrested Officer not as McCurdy has Although under Disorderly McCurdy for Conduct most in the appellate claims serted his 2917.11(B)(2). The statute Ohio Rev.Code fashion, essentially claim his first artful provides that: have did not Cole contends that Officer intoxicated, voluntarily person, while No him, that he and cause to arrest probable create a in conduct or [ejngage ... shall Amendment his Fourth violated therefore physical a risk of presents that condition unreasonable searches right another, or to or harm to the offender Amendment the Fourth While seizures. of another. property detentions, or investigatory allows brief the basis justified be on “Terry” stops, to 2917.11(B)(2). there § The statute O.R.C. Terry v. suspicion,” see of a “reasonable an individual that requires fore both 1868, 1, 21-22, Ohio, 88 S.Ct. 392 U.S. that the indi “voluntarily intoxicated” and (1968), full-fledged arrest L.Ed.2d 889 physical harm” a risk of “present[ ] vidual cause. See supported by probable must be himself, another, or another’s either to 303, Schubert, F.3d v. Gardenhire re This second element property. Id. Cir.2000). (6th of dan showing some affirmative quires fact that an individ as the sole gerousness, po that requires cause Probable to a give not rise intoxicated does ual is trustworthy informa reasonably lice have 2917.11(B)(2) v. infraction. See State § of rea an officer to warrant tion sufficient No.1998CA00137, 1998 WL Pennington, the arrestee caution to believe sonable 1998) (Ohio 16, 818632, Nov. App. *1-*2 at committed, of commit process in the or is N.E.2d) (not (citing in reported Eight v. See Centanni ting, an offense. 2917.11(B)(2)’s (6th history, assert legislative § 587, 592 15 F.3d Officers, Unknown particu aimed at Cir.1994) Ohio, provision “is ing that v. 379 U.S. (quoting Beck conduct, the condition than at rather 91, 223, 142 lar 13 L.Ed.2d 85 S.Ct. Jenkins, intoxication]”); No. v. Burrows, State (1964)); [of Dietrich Estate of (Ohio *7 L-97-1303, at (6th Cir.1999). 1998 WL Proba- 1010-11 F.3d (not 1998) reported responded App. Although Mar. the affirmative. 2917.11(B)(2) N.E.2d) § re- Officer did not administer kind of (holding Cole tests, sobriety testimony conduct on or coherence quires “some affirmative his that he part pro- strong defendant and smelled “alcohol real [does not] him,” public”).1 coupled McCurdy’s at merely being intoxicated J.A. with hibit admission that he consumed both alcohol provides further The statute during nephew’s party his and the card the determination as to whether indi game apartment, provided him with vidual is intoxicated is determined from probable to believe “ordinary perspective of an observer.” “voluntarily was intoxicated” under O.R.C. 2917.11(D). § § Although 2917.11 O.R.C. 2917.11(B)(2). § intoxication provide does not a definition of 2917.11(B)(2), § under the district court However, jury’s finding under in provided jury following with the 2917.11(B)(2) prong § second O.R.C. struction: presents a much different question, and we A person is intoxicated who is so far jury find that no reasonable could conclude under the li- intoxicating influence that Officer Cole had cause to wine, quor, physical or that his beer McCurdy presented believe that a risk of impaired mental faculties are to such an himself, others, physical harm either to degree extent that he fails to use that issue, property of others. On this care and attention in his conduct which a Officer Cole testified that: person reasonable would otherwise use. person [W]hen is intoxicated to that J.A. at 32. level, my training experience, un- law, they essentially der my become re- that there in argues sponsibility once I become contact support finding sufficient evidence to with If I person go, them. let that I presented that he was intoxicated or “a you cannot what’s going happen tell [himself], another, physical risk harm to I only, unfortunately, them. can property required or to the another” speculate what happen could to them. 2917.11(B)(2). § regard under With to the why my That’s it becomes responsibility element, voluntary intoxication Officer to make sure that one a million Cole testified that he smelled alcohol on things happen does to them.... during breath his conversation 151-152; (em- with him McCurdy and that he believed J.A. at Tr. at Cole 180-181 added). past Moreover, intoxicated the level where he phasis Officer Cole could take care of himself. See J.A. at “[b]y exhibiting stated that his intoxicated 151; nature[,] Tr. at Additionally, Cole 180-81. Of ... way there was no I that ficer asked McCurdy Cole whether he had point could tell at that that [McCurdy] was been drinking night, McCurdy that and damage not there to do property of dissent, Judge Engel 1. In observes that upon statute that he relied to affect the arrest Pennington and above, Jenkins cases which we have McCurdy. of Mr. As noted unpublished opinions cited are that were filed 2917.11(B)(2) § prohibit "voluntarily does not years two McCurdy. after Officer Cole arrested Mr. intoxication” in and of itself. In order to argues He unfair that to uti- violate this statute an individual must also opinions analyze lize-these Officer Cole’s "present[ physical a risk of ] harm” either to culpability analysis requires because such an himself, another, property. or another’s See anticipated Officer Cole to have what the law 2917.11(B)(2). § Officer Cole did not have agree would be in the future. I that it is McCurdy cause to believe that Mr. generally not fair to hold an individual to a presented physical "a risk of harm.” Accord- legal However, emerges standard that after the fact. ingly, guilty violating Officer Cole is Mr. culpability Officer Cole’s does not McCurdy's Fourth Amendment This Pennington turn on the and Jenkins decisions Pennington would be true even if the suggests. culpa- as the dissent Officer Cole’s Jenkins had cases never been decided. bility plain language is based on the

519 let the individ government area. commands that lived in the person that another Indeed, if anything at 148 is clear about was arrested.” J.A. ual be. why That’s he added). Amendment, additional- govern Cole it is this: (emphasis Officer the Fourth approached that after he may deprive liberty asserted its citizens of ly ment associates combat- when, when, McCurdy, only it has a viable claim authority. crime, his ively challenged committed a that an individual has supported empirically by claim is and that testimony, he did own Cole’s By Officer identifiable facts. See concrete arrest McCur- probable cause to not have Dickerson, 366, 376, Minnesota v. U.S. 2917.11(B)(2), § and the dy under O.R.C. (1993); 2130, 124 L.Ed.2d 334 denying S.Ct. therefore erred district court Reed, 99-3393, No. a mat- States v. judgment for United McCurdy’s motion 2000). (6th 23, May *2 Generously granting Officer at Cir. of law. WL ter all inferences and satisfy the benefit of did not these funda Cole Officer Cole Cole, best, doubts, presumed and, accordingly, at imperatives, Officer mental harm presented a risk of district court’s denial of reverse himself, another, property or the either to judgment notwith McCurdy’s motion appeared to solely because he of another it relates to Officer standing the verdict as However, above, as noted be intoxicated. capacity. Because his individual Cole clearly pro- the statute language specifi the district court did not address give alone does not that intoxication vides policy cally whether a custom or 2917.11(B)(2) § violation. See to a rise see, County liability, gave rise either to *l-*2; at Pennington, 1998 WL 818632 City Dept. e.g., Monell v. New York Jenkins, *7. In this 161190 at 1998 WL 689-90, Servs., 436 U.S. Social the Coun- Officer Cole nor regard, neither (1978); Board 56 L.Ed.2d S.Ct. objective and articulable ty has cited Bryan County v. County Comm’rs could reason- facts from which Officer Cole 397, 407-08, Brown, 117 S.Ct. 520 U.S. a risk McCurdy presented ably infer that (1997), liability L.Ed.2d 626 2917.11(B)(2). § under physical harm capacity, in his official against Officer Cole 95-5065, Combest, see, No. e.g., Hayden v. Indeed, es Cole testified Officer (6th Dec.1, *1 Cir. 1995 WL objective facts sentially that there were no 1995) opinion), we remand (unpublished cause, only as he could trigger probable proceedings.2 further things” a million “speculate” on the “one of if he did not arrest might occur' Moreover, Cole stated McCurdy. Officer B. arrested because plainly that he contends that McCurdy also tell ... way that could [he] “there was no granting Officer the district court erred to do dam [McCurdy] was not there immunity on motion for Cole’s person that property of another age to the retaliation claim. We First Amendment in area.” at 148. When lived J.A. quali of grant district court’s review the pre whether a literally has no idea officer Gardenhire, immunity de novo. See fied sumptively law-abiding citizen has violated Qualified immunity 310. law, clearly 205 F.3d at Amendment the Fourth 98-1517, Mass., Corp. No. EEOC v. EMC Additionally, McCurdy that the dis- 2. claims of Feb.8, 191819, (6th at *10 Cir. jury 2000 WL providing the with court erred in not trict event, 2000) any opinion). meaning (unpublished of specific instruction on the 2917.11(B)(2), discretion in formulat- pro- courts have broad § nor trial O.R.C. "risk” under King Ford Motor ing jury Co., See instructions. viding jury specific with the definition of Cir.2000). 886, (6th First, Be- 897 ap- 209 F.3d provided by McCurdy. it "risk” showing that McCurdy has not made a object this pears McCurdy did not that 29-39, were either trial, instructions McCurdy's the district court’s see J.A. at basis confusing, 9, unduly misleading, prejudicial, or may only we Rep. Br. at and that therefore reject this claim. "plain See we must claim for error.” review this 520 performing supported by officials cials is government

shields well-established Furthermore, liability ample case law. it well- discretionary functions from is public established that a their does not official’s retalia- damages civil when conduct against exercising tion an individual clearly statutory or con- violate established her First rights Amendment is a violation rights of which a reasonable stitutional 1983.”); § City Douglas, Duran v. person have known. See Harlow v. should (9th Cir.1990) (“[gov- 1372, 800, 818, 904 F.2d Fitzgerald, 457 102 S.Ct. U.S. (1982). general, ernment officials in of- apply 73 L.Ed.2d 396 We particular, in may ficers not exercise their two-step analysis to determine whether a motives, authority personal particularly public official is entitled to immu- response perceived slights to real or to first, nity: clearly we determine whether a dignity. Surely, anyone their who takes statutory established constitutional or an oath of office knows—or should know— violated; second, right has been much.”). that ascertain, pursuant objective to an stan- dard, whether the official acted unreason- It is well-established then that ably light clearly of the established had right challenge a constitutional ver- Ribar, right. Bloch v. See F.3d surveillance, bally Officer Cole’s and we Cir.1998). (6th grant therefore reverse the district court’s of qualified immunity to Officer Cole. Be- The district court concluded cause the district court did not address acted, that when Officer Cole it was not whether arrest was at least established the First Amend conduct, partially by motivated protected prohibited ment an officer from effectuat we remand for proceedings. further ing an otherwise valid arrest if that officer was motivated a desire to retaliate C. the arrestee’s assertion of First finally County asserts that the Amendment We have held that improperly a peremptory challenge used adverse state action “motivated at least juror exclude a black in violation of the part a-response to the exercise of the Equal McCurdy spe- Clause. Protection plaintiffs rights” presents constitutional cifically objects County’s to the use of a an actionable claim of retaliation. See peremptory to strike African-American Bloch, (citing 156 F.3d at 678 Healthy Mt. Sylvia Williams from jury. In re- City Bd. Doyle, Sch. Dist. Educ. v. sponse, contends Williams’ 274, 97 U.S. S.Ct. 50 L.Ed.2d 471 during demeanor voir suggested dire (1977)). day Since the the ink dried on the she was in serving juror. disinterested as a Bill Rights, right of an American “[t]he court, In the district County’s attorney public citizen to poli criticize officials and stated: cies ... ‘the central meaning is of the ” [Williams], my view in watching [I]n First Amendment.’ City Glasson v. response there was no Louisville, (6th Cir.1975) 518 F.2d questions, nodding no I the head. Sullivan, (quoting New York Times v. just took that she wasn’t interested 254, 273, U.S. 84 S.Ct. 11 L.Ed.2d 686 case, and I had her crossed off from (1964)). There can no be doubt that the beginning, Judge, being as far as not express freedom to disagreement with responsive, my and that’s reason for ex- action, state without reprisal fear of based ... ercising the peremptory challenge. on the expression, unequivocally among protections provided the Williams, the at questioning First J.A. 103. Without id.; Bloch, Amendment. See 156 F.3d at engaging colloquy or with either 682; see also Harrington, counsel, Barrett v. 130 McCurdy’s County’s or the the 246, (6th Cir.1997) (“[T]he F.3d 264 McCurdy’s First district court overruled Batson right Amendment to public objection. criticize offi- at In See J.A. 104.

521 body language and de motion, chal- While reiterated his he new trial justi permissible meanor are race-neutral The district peremptory. the lenge to peremptory, exercise of a fications for the con- challenge, rejected his renewed court 837, 1 Changco, v. F.3d see United States “passive” Ms. cluding that Williams (9th Cir.1993) (“[P]assivity,. inatten 840 parties’ questioning face of the the tiveness, to relate to other inability articulated therefore had the that valid, jurors explana race-neutral [are] for its exercise justification a race-neutral jurors.”), district courts excluding tions for peremptory. of the “explicitly adjudicate] must nevertheless non-moving of the or chal credibility ruling on wheth A district court’s party’s explanations.” race neutral lenging challenge peremptory of a er the exercise (2d 196, Lefevre, v. 206 F.3d Jordan protection is entitled equal violates Cir.2000); Perez, see United States v. deference,” may we not disturb “great (1st Cir.1994) 632, that (holding F.3d clearly it erroneous. unless is judgment its credibility the trial court must assess Buchanan, 302, v. 213 F.3d States United explanation). The need of the race-neutral Cir.2000). (6th It is settled that 308-09 explicit, analysis for an on-the-record equal pro guarantee the Constitution’s challenge each of the elements of a Batson party may not exer ensures that a tection important purported when the especially is challenge to remove peremptory cise a justification predicated race-neutral person’s race. account of that individual on subjective explanations body language like 79, 106 Kentucky, 476 U.S. Batson v. See Ledford, or demeanor. See United States v. (1986); 1712, Edmon 90 L.Ed.2d 69 S.Ct. (6th 659673, 96-5659, *2 No. 1997 WL Co., Inc., 500 v. Leesville Concrete son 1997) Oct.22, opinion) (unpublished Cir. 614, 630-31, 111 S.Ct. U.S. crediting subjective explana (noting (1991) rule (extending Batson L.Ed.2d 660 peremptory strikes could allow an tions for trials). protec equal To establish a to civil attorney to “circum improperly motivated Batson, the claimant under tion violation Batson). primary de Because the vent” case of prima must first establish facie of Batson pretext based violations fense States v. racial discrimination. See United ability to assess the is the district court’s Cir.1999). (6th Mahan, 416, 424 190 F.3d attorney’s representations, credibility of an prima establishes a If the claimant indepen the district court it is critical that facie case, exercising peremptory party proffered justifications. dently assess York, explanation. proffer must a race-neutral v. New 500 U.S. Hernandez See 114 L.Ed.2d 395 explanation “need id. This non-racial S.Ct. See (1991). particularly persuasive, or even not be it is neutral.” United plausible, long so Here, the district because (6th Harris, 192 F.3d

States explanation merely credit the court did Cir.1999). defending party of After the County, itself found but justification, the chal its race-neutral fers disinterested, passive and Williams was that the lenging party must demonstrate McCurdy has not demon conclude that merely pretext purported explanation is court erred that the district strated id. As with for a racial motivation. See challenge. Nev dismissing his Batson the ulti generally, claims discrimination ertheless, that the district we underscore always rests persuasion mate burden McCurdy’s Bat- initial reaction to court’s peremptory. party challenging claim, accept perfunctorily with the in which son 765, 768, 115 Elem, explanation, County’s race-neutral Purkett v. 514 U.S. ed the See (1995). 104,3 did not conform to 1769, 131 see J.A. at L.Ed.2d 834 S.Ct. McCurdy’s post-verdict new trial addressing appears have rec- itself 3. The district court motion, explained that it did not the court disposition McCur- ognized its initial County’s race-neu- probingly more assess dy’s challenge was insufficient. Batson himself, physical make harm either to others that the district court requirement property “gener- or the of others” and that of the elements expressed findings on each the benefit of Jordan, ously granting Officer Cole 206 F.3d claim. See of a Batson doubts, all inferences and Officer Cole at McCurdy’s post- until at 200. It was not McCurdy presented presumed best trial that the dis- verdict motion for new himself, of harm either to risk another pertain- findings made its own trict court property ap- of another because he demeanor, thereby ing to Williams’ peared That to be intoxicated.” statement complied requirements with the Batson. fairly represent does not the record nor “great deference” to grant Given that we testimony. Officer Cole’s findings, Batson see the district court’s Buchanan, and that the 207 F.3d proofs The before the court contained in the constitu- ultimately engaged court objective and credible facts from which a analysis, affirm the tionally required we police proba- reasonable officer could find McCurdy’s denial of Batson McCurdy present- district court’s ble cause believe claim. physical ed a risk of harm under the stat-

ute cited. Officer Cole testified that he McCurdy found outside at 5:00 a.m. He III. companions only and his were not intoxi- jury rational could find that Because no cated, they but also acted as if wanted to probable to arrest Officer Cole had cause fight perhaps officer and each 2917.11(B)(2), § McCurdy under we O.R.C. McCurdy other. He testified that used the district court’s denial of REVERSE profanity when him. speaking to Based judgment motion for notwith- McCurdy’s intoxication, McCurdy’s unprovoked verdict, judgment standing the enter officer, disorderly mannerism toward the Fourth Amendment on his day, and the time of the officer concluded against claim in his individual Officer Cole presented that he him- risk of harm to capacity. We also REVERSE district jury agreed. self. The grant qualified immunity court’s to Offi- majority The focuses on Officer Cole’s cer on First Amendment Cole testimony only “speculate” he could on the claim, retaliation as it was estab- things” might “one of a million occur lished at time acted that Officer Cole if McCurdy. he did not arrest Bear in against McCurdy he could not retaliate mind “one of a million things” is not the asserting his First Amendment same as “one in a million” chance that he REMAND rulings, With these to the injury might do to himself and others. proceedings for further district court any police exactly How could officer know McCurdy's Fourth Amendment claim particular injury which a man at that time and his First Amend- day an intoxicated condition after ment retaliation claim. having been drinking night, most of the do, might might get fight whether he in a ENGEL, Judge, dissenting. Circuit party, with a third whether he might stag- respectfully strongly My I but dissent. truck, ger into the street front of a upon premises dissent is based several might bridge, whether he fall off a or as majority’s which I think are flawed “any Officer Cole said one of a million < rationale. things.” First, majority’s I from the dissent con- majority The in this case requiring jury clusion that “no reasonable could con- high degree specificity from the officer clude that had support Office Cole his conclusion that McCurdy presented presented Merely to believe that a risk a risk harm. because justification suggested improper tral “no [Defendant's one intrusion on counsel’s] becaus.e judgment.” at the [it] time and would have been an J.A. at 39. predict majority might which of the The better have looked officer could not the might published guidance do does not Ohio cases for on things McCurdy million probable interpretation disorderly cause. of the Ohio con the arrest without render v. State disorderly duct while intoxicated statute. In under the Ohio While conviction Parks, App.3d N.E.2d 747 intoxicated statute 56 Ohio conduct while (Ohio App.1990), more than intoxication overruled other requires something Jenkins, v. State alone, App.3d required grounds, under Ohio Ohio the evidence (Ohio 1991), App. the specific need not be as 598 N.E.2d 872 the case law court held that the act of majority contends. defendant’s sit ting peaceably passenger in the seat of a respect particularly I am In this latter in in parked driveway car that was upon the court’s rebanee concerned about intoxicated state did not create the kind of No.1988CA00137, Pennington, v. State physical risk of harm to that was himself (Ohio 16,1998), App. Nov. 1998WL 818632 encompassed by intended to be R.C. Jenkins, L-97-1303, and State v. No. 2917.11(B)(2). rejected The' court 1998). (Ohio App. March WL 161190 argument state’s that the defendant’s re two cases majority’s The reliance on these presented of car get fusal out risk Pennington seriously is flawed. Both harm in might of because he have been Jenkins were years published two after jured him police when the assisted out of question incident in and would not be the car. The court determined that this proper authority judging for Officer Cole’s entirely passive conduct was not the kind Second, immunity in event. envisioned consequence of foreseeable and Jenkins were decisions of Pennington Parks, the statute. 564 N.E.2d at 750. appeals an intermediate court of of Lucas (Pen (Jenkins) County and Stark published Under Ohio law the foresee- nington) when in case arose in fact this ability requires of the risk of harm County. Hamilton professional judgment. exercise of Gurish, Knapp App.3d 44 Ohio concern, Of even more serious each (Ohio App.1989), N.E.2d 121 the defendant prominent the cited cases contain a notice faihng for to arrest police officer was sued Supreme 2 of the Court Rule Ohio person an intoxicated under statute. Opinions impos- Reporting Rules for the duty The that “the to ar- court observed limitations on the use of es restrictions and 2(G)(2) person disorderly rest a for conduct while pro- unpublished opinions. Rule necessarily discretionary.” intoxicated is unpublished opinions vides that are Id. at 123. judicial even in the district controbing im- opinion which the was rendered. This 2917.11(B)(2) that a requires R.C. pacts upon our decision here least the intoxi- officer assess the condition of First, Pennington respects. two neither whether his person cated and determine nor Jenkins is acceptable authority himself poses condition a risk of harm to act posture interpretation Ohio’s requires an or others. This assessment very of Rule 2. question by terms professional judgment exercise of that is Second, they properly if reflect Ohio did implementation proper essential to the law, they did not do so at the time of the of the statute. culpability event here. If the officer’s is Id. at 123. understanding of law upon based Ohio offense, studiously avoids consider- totaby majority The at the time of the language abusive ought unfair to conclude that he reason- ation un- their consideration ably anticipated to have this would be in State v. Yet, der the statute. as noted obeyed law which he should then have two Butler, App.3d 578 N.E.2d which 63 Ohio years before its issuance and should (Ohio use of App.1989), a defendant’s prompted him not to act as he did. 485 have Jenkins, 161190 at *6. purposes public. 1998 WL profanity may be considered disorderly specifically under held that “the officer conduct The court determining Butler, probable to and search at 488. had arrest 578 N.E.2d the statute. ap- disorderly conduct where appellant found the evidence In Butler the court traffic parked his car to obstruct support pellant a conviction under sufficient to 2917.11(B)(1), Appellant cre- regarding carry-out § flow into a store. the section R.C. a of harm to himself and others opposed as to a risk of ated risk offensive conduct may which have presented any evidence was simi- as well as to car harm. The Thus, driveway.” in Id. at *7. lar to the evidence this case: the defen- entered alcohol, in that conviction was affirmed dant had slurred Jenkins’ smelled in loudly, the case all events. speech, very talked berated police, very antagonistic was towards the re- Pennington, supra, appellant the officers, profanity and used towards the him police efforts of to talk to after sisted officers. 578 N.E.2d at 486-87. responded a call which police the assert- appellant “pounding on the must be tolerant of abusive lan- ed that the was

Officers Nevertheless, they McCurdy’s refusing abusive door and to leave.” When guage. (and it, “stop, police” Pennington about it called out contin- language make no mistake start), pro- caught if run until was abusive from the even ued to he was by generally, the First Amendment knocked down and subdued and thereafter tected belligerent. by was nonetheless Given the arrested officers who noted that he alcohol, reasonably it staggered, overall circumstances could “smelled of and his position speech eyes an in were have induced officer Cole’s was slurred law, under That court found that there was glassy.” to conclude Ohio as was then known, appellant placing there was a risk of actual no evidence that “was objectively police by running, The reasonable himself at risk other than he harm. here, officer, running neighborhood. which is our measure certain- was in a bad We ly right language legally had a to consider such find evidence is insufficient to such only not as indicative of intoxi- sustain a conviction under the subsection cation, § of his mind. 2917.11 in charged but also frame of of O.R.C. the case happy judice.” Although There are drunks and there are sub there was in the judgment mad drunks. Officer Cole could reason- of that court insufficient evi- conduct, ably disorderly conclude that in his then the court dence mind, appeals Penning- condition and combative frame of did found nonetheless that present danger requisite in fact the under applying ton’s arrest was lawful: “when test, objective the Ohio statute. the to the facts in the in- appeal, upon stant based the nature of the assuming unpublished Even that the two call, day, trouble the time of the and the by majority might cases cited the somehow personal observations of the officers at accurately interpretation reflect Ohio’s scene, officer we find reasonable statute, they support majori- its fail to appellant’s would have conduct believed Jenkins, ty’s construction in event. In constituted violation of O.R.C. passed the defendant was found out and 2917.11(A)(2). I, § Despite our decision slumped steering over the wheel of a car supra, there was insufficient evidence of stolen, which was and was arrested for disorderly conduct intoxication as disorderly conduct under TMC complaint, ap- find the charged 509.03(b)(2). The court observed that the pellant’s arrest was nonetheless lawful.” under, statute he was like arrested OHIO 2917.11(B)(2)(the § judgment Rev.Code Ann. statute or not is a Whether arrest case), officer, required spot by at issue this “some affir- call made on the part accordingly supporting mative conduct” on the of the defen- the evidence beyond merely being dant intoxicated officer’s cause determination does immunity to the grant sheriff. specificity degree the same require right conviction to criticize support We reasoned the evidence as established, doubt. public a reasonable officials was as beyond public that a official’s principle in properly jury in this case was The for exer- retaliation individual physical of risk of on the elements structed rights a viola- cising First Amendment harm, signif of risk as a and the definition § tion of 1983. Id. at 682-83. possibility. to a remote opposed icant disorderly conduct evidence of While problems majori with the There are two there very strong, have been might not First, ty’s reliance on Bloch. Bloch had Because it cannot be some evidence. was not been decided at the time Officer Cole absence of complete there was a said that McCurdy. Cole’s arrest arrested Officer that the jury’s the verdict support fact to in Bloch of occurred 1996. was cause, by probable supported was arrest until the not decided 1998. Under doc v. affirm. See Pouillon this Court should immunity “government of qualified trine (6th Owosso, 711, 719 206 F.3d City of performing discretionary officials functions .2000). Cir generally liability are shielded from majority’s view disagree I with the also damages civil insofar as their conduct does opinion B the that the district in Part of statutory or clearly not violate established mo- granting in Officer Cole’s court erred a rights constitutional of which reasonable First immunity on the qualified tion for Harlow v. person would have known.” a more claim. I find this Amendment 818, 800, Fitzgerald, 102 457 U.S. S.Ct. believe it is mooted question difficult but (1982). 2727, This means 73 L.Ed.2d 396 trial specific findings of the by out the applicable that the law must have been jury the in all events. court and the action clearly established at the time majority holds that the district The at that time was occurred. Id. “If the law in its conclusion that when established, court erred an official could not clearly not acted, clearly it not es- Cole was anticipate Officer reasonably expected to sub be pro- that the First Amendment tablished sequent legal developments, nor could he effectuating an officer from an hibited that the law for fairly be said to ‘know1 valid arrest if that officer otherwise previously bade conduct not identified in to part by motivated a desire retaliate Id. unlawful.” First the arrestee’s assertion of Second, press involved a sheriffs Bloch majority reasons Amendment The It not involve an arrest. release. did then that because it was well-established law articulat- accepted Even if we that the to right had a constitutional 1996, in in established ed Bloch was verbally surveil- challenge Officer Cole’s alleged in Bloch did retaliatory the action lance, granting court erred in the district an arrest. not arise in the context of immunity on the re- qualified Officer Cole taliation claim. Creighton, in v. 483 As noted Anderson 635, 3034, 97 L.Ed.2d 523 U.S. 107 S.Ct. position, majority support In of this (1987), immu- operation (6th Ribar, v. F.3d 673 relies on Bloch substantially upon depends nity standard Cir.1998). rape a and her Bloch victim at which the rele- generality the level of §a 1983 retaliation claim husband filed identified. Id. at “legal vant 'rule” is to be they alleged who had against a sheriff 639, The contours of the 107 S.Ct. 3034. by issu- rights their constitutional violated alleged is to have violated right the official press discussing release the sensitive ing sufficiently clear that a reasonable must be plain- rape in retaliation for the details of that what he is official would understand amendment tiffs’ exercise of their first Id. at doing right. violates that public criticize officials. Id. at right to Qualified immunity does not the district court’s S.Ct. 3034. 678. We reversed arrest, ques- probable support action in cause to then- very turn on whether unlawful, held but actual motives were irrelevant. Id. at *4 previously been tion has Kent, City in 867 F.2d apparent (quoting must be Criss the unlawfulness (6th Cir.1988)). (citing Recognizing Id. that San- light pre-existing law. many 105 dul is no more authoritative than Forsyth, 472 U.S. Mitchell v. (1985)). by majority, It cited it nonethe- L.Ed.2d 411 the cases S.Ct. posture illustrates the uncertain trying figure out at the less well not matter in- just epi- what F— words or other of the law at the time of events scene or do not amount to volved here. thets amount precedent, or “fighting legal words” Because the federal courts are still dis- judicial post-mortem determining puting the issue of retaliation the con- they whether should. arrest, hardly it can text of an be said pre-existing apparent law on the is- have been The relevant should Officer Healthy sue of retaliation is found Mt. Cole he could arrest individual, though City Doyle, Board Educ. v. even he had School arrest, if 97 S.Ct. 50 L.Ed.2d 471 cause to effect the the individu- U.S. (1977). Healthy protected speech Mt. involved a school al’s at the time had impact a in board’s decision not to rehire teacher on the officer’s decision to arrest. of constitution- retaliation for exercise Healthy Mt. counsels affirmance here ally protected speech. Because Mt. may in fact though even Officer Cole have Healthy police did not involve a officer’s by foul been influenced and abusive arrest, obligation decision to an at the core employed language by McCurdy. Mr. responsibilities, of the officer’s and neces- Particularly Supreme relevant is sarily spot luxury made on without the observation that Court’s some incidents apparent it that investigation, was inevitably remain on the minds of those Healthy police would offi- govern Mt. responsible making decisions. “A rule cer’s conduct. solely of causation which focuses on wheth- plaintiff may protected played part, a recover for a a Whether er conduct sub- otherwise, deprivation rights of First Amendment stantial or in a decision not to place caused an in allegedly retaliatory employee arrest rehire could an a better position which the officer had cause to as a result of a the exercise of effect was not a matter of constitutionally protected estab- conduct than he Indeed, occupied lished law in 1996. it is still an nothing.” would have had he done subject in Healthy, issue that is to debate the feder- 429 at Mt. U.S. 97 S.Ct. 568. here, al majority Supreme Applying principle courts. The cites no to the case published disturbing Court Sixth Circuit cases dis- is even more that a drunk using in cussing retaliation claims the context of offensive and foul language the course arrest, I am Terry stop, aware of none. The of a could for that reason alone argument defendants raised the pretense under the .no First Amendment may brought protected retaliation claim be if speech, goad intimidate and a supported by probable police arrest is believing officer into that he dare Burrows, Estate Dietrich v. duty F.3d not do what he conceives to be his (6th Cir.1999), validity but the of this lest somehow he violate that drunk’s con- position not ruled on Rehnquist because there stitutional As Justice previous finding was a that there was no stated: “The principle constitutional at probable cause. Id. at 1013. We did con- sufficiently stake is vindicated if such an case, unpublished sider in an employee placed position this issue in no worse Larion, (Table), Sandul v. 52 F.3d 326 than if engaged he had not that con- (6th Cir.1995). 285-86, 1995 WL 216919 Healthy, San- duct.” Mt. at U.S. dul suggested that if the Certainly officers had S.Ct. 568. an individual should constitutionally because of not be arrested But the same language. offensive

protected able, by using to be ought not

individual police offi- language, prevent

offensive conduct, and reach- assessing his

cer from him, simply be- to arrest

ing a decision makes the language

cause the offensive of the correct- officer more certain

police Healthy, Mt. of his decision. See

ness I do not believe 97 S.Ct. 568.

U.S. Court, creating Supreme doctrine, intended to so immunity in the course of his officer

hobble

duties. America,

UNITED STATES

Plaintiff-Appellee, Defendant-Appellant. MISE,

Jason S.

No. 99-3631. Appeals, Court of

United States

Sixth Circuit. 25, 2000.

Submitted: Oct. 19, 2001.

Decided and Filed: Jan.

Case Details

Case Name: James E. McCurdy v. Montgomery County, Ohio

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 16, 2001

Citation: 240 F.3d 512

Docket Number: 99-3473

Court Abbreviation: 6th Cir.