*1 (J.A. 929) court, district 2004.” how-
ever, KING, Plaintif-Appellant, Sean excluded this statement as inadmissi- hearsay, and Plaintiff does not chal- ble lenge appeal. Faced with exclusion on AMBS, Kevin Township Columbia additional competent
no evidence of retali- Officer, ation, Police in his prop- we hold that the district court individual capacity, Defendant-Appellee. erly granted summary judgment to the City. No. 06-2054.
CONCLUSION United of Appeals, States Court properly granted The district court sum- Sixth Circuit.
mary judgment City to the on each of Argued: April 2007. Supreme Plaintiffs claims. Under Jett, § holding in Court’s Decided and March Filed: private of action against create cause municipality.
2702. Because we that no conclude Su- Congress Court case or Act of
preme has we holding,
overturned this have no choice reject §
but Plaintiffs 1981 claims.
Similarly, Plaintiffs other claims lack mer- Both disparate
it. his treatment and hos- require
tile environment a showing claims City employees motivated by were animus, record provides
racial but the no alleged
evidence ill-treatment of
Plaintiff was influenced his race. Plain-
tiffs retaliation claim also fails because entirely
Plaintiff relies almost on inadmis- hearsay in support
sible evidence of this §
claim. Inasmuch as Plaintiffs law,
claim fails as a matter and no jury
reasonable could find facts supporting claims,
Plaintiffs additional we AFFIRM district granting court’s decision sum-
mary judgment City. to the
COOK, Judge, concurring part Circuit concurring judgment. concur in judgment opinion
I court exception analysis with the of its Rights reliance on the Civil Act of legislative history.
1991’s
OPINION ROGERS, Judge. Circuit summary judg from appeal This is an in favor of a ment entered § action. Officer Kevin Ambs Klein, Nicholas questioning party, a third not to plaintiff King told Klein when Sean King had twice to the officer. After speak officer, not to talk to the Officer told Klein if to arrest he said Ambs threatened King told Klein third “one more word.” officer, at which speak not to to the time King. Relying arrested point Officer Ambs 451, 107 S.Ct. on Houston v. (1987), King argues L.Ed.2d his First and the arrest violated rights. Ambs Fourth Amendment Officer violate the argues that the arrest did not qual he entitled to and that Constitution immunity. granted The district court ified summary judg motion for Officer Ambs’ interference ment and held that investigation provided with Officer Amb’s cause for the arrest. affirm We judgment. the district court’s Granzotto, Law Of- Mark ARGUED: a.m., 15, 2002, after 3:00 On December fice, Oak, Appellant. for Royal Michigan, Kevin Ambs of the Columbia Officer Morris, Magy, & Kupelian, Ormond G. Gus a rou- Township Department Police was on Southfield, Appellee. ON Michigan, for un- upon when he came an patrol tine Office, Granzotto, Law BRIEF: Mark in a ru- improperly parked vehicle locked Kent, Oak, Thomas L. Royal Michigan, stopped ral residential area. Officer Ambs Arbor, Green, Kent, Adams & Green, Ann car, patrol plate ran the license number his Morris, G. Gus Michigan, Appellant. for vehicle, car, patrol then exited his Gilmer, & Kupelian, Ormond D. Randall vehicle, shined a into saw Southfield, Michigan, Appellee. Magy, marijuana on the dashboard. Officer marijuana, called for a Ambs seized the COOK, Circuit Before: ROGERS vehicle, impound began wrecker to O’MALLEY, Judge.* Judges; District inventory search of the vehicle. the street from ROGERS, J., opinion of Klein’s house was across delivered the COOK, J., Ambs was search- court, joined. the vehicle Officer in which 615-26), conducting Ambs was O’MALLEY, ing. delivered a While Officer (pp. D.J. search, and Lucas Anderson separate dissenting opinion. * Ohio, sitting by designation. O'Malley, District of Honorable Kathleen McDonald Judge for the Northern United States District residence, immediately out of approached stepped came Klein’s into house while vehicle, why and asked Officer Ambs the officer entryway. remained searching he was the vehicle. Officer Ambs step Officer asked Klein to out- either asked and Anderson whether house, side responded and Klein registered them was the owner *3 doorway into stepping the between the vehicle, responded they and both that were the entryway, leaving house and the door initially King not. After denied that he open. to the house As Klein went to exit vehicle, knew the owner of the he told house, King the and urged Anderson Klein registered Ambs the owner Officer that not to go outside the house and told Klein in the Dur- was house across the street. that did not he have to talk to the officer. vehicle, King this at the exchange and Officer Ambs testified that both King and Anderson told Officer Ambs that he did Anderson “would over” speak him. King not have the to search the vehicle. claims he “was speaking not over King testified that Officer then Ambs way Officer Ambs and was in no interfer- King threatened to arrest and Anderson ing, physically verbally, with Officer hindering investigation. for an Officer attempt Amb’s with speak to Mr. Klein.” he Ambs claims that smelled alcohol on Anderson, As King Officer Ambs continued his and and he to interview threatened Klein, public arrest the two King again men intoxication. with advised Klein that King laughed and officer Anderson the he did not have to to speak the officer and he to when threatened them be- told Klein that he did not have to go cause, to according King, they did not with outside Officer Officer Ambs. Ambs they anything wrong. think that had done King then “if advised he said one Officer Ambs asked whether the men had more word he would be arrested.” At drinking; responded they been both point, according King, to Klein “went had but be twenty-one (though claimed to step to outside of the house ... and began time), twenty King was at the and the King to shut door” with inside the they offered iden- to show officer their time, King A third house. told Klein that tifications. he did have to talk to the officer. King and Anderson decided to to return house, Officer then Ambs entered they they the house because felt that had arm, grabbed King’s told King and that he enough questions” “asked of Officer Ambs King was under arrest. broke free of that they and did not believe would able grasp Officer Ambs’ retreated into the stop impounding him from their friend’s King Klein home. Officer Ambs followed King vehicle. Officer Ambs followed through forcibly subduing house before Anderson to the Klein home. Klein’s King pepper spray. with Officer Ambs glass entryway home had a leading King glass then searched and found a front door of house. Officer When pipe in his smoking pocket. glass Ambs tried open door jail given was taken to and was King entryway, held handle Anderson onto the breathalyser a reading test that showed prevent from the inside to the door from 0.14, the Michigan above standard for in- and, opening response, Ambs Officer charged toxication .08. with jail he if go told Anderson that would he being public, opposing drunk kept resisting. Officer was in Once Ambs duty, performance resisting of his Anderson, entryway he arrest, marijuana. and possessing On knocked on door. Klein the front Nick 24, 2003, March district the state court answered and identified himself as resi- First, Andersоn all charges against King. dent house. dismissed proba had Ambs drunk- Because Officer public dismissed the state court King, Ambs did cause to arrest Officer ble the local ordinance charge because enness King’s Fourth not violate had been charged King was under which disorderly King was arrested for rights. Second, statute. state superseded Officer because he obstructed conduct that Officer court found the state in the course of questioning of Klein Ambs’ King for to arrest probable cause had no Town investigation. Columbia a criminal the Michi- Relying on opposing an officer. § a disorder 28.3.3 defined ship Ordinance People v. opinion in gan Supreme Court obstructs, as, person “A who ly person Mich. 631 N.W.2d Vasquez, resists, opposes hinders or impedes, state (2001), a different interpreted discharge of his or her officer in the peace (M.C.L. 750.479), § the state court statute *4 Michigan argues that under duties.” prohibiting the local ordinance held “physical limited to ob law obstruction is performance in the of an officer opposing struction,” King’s conduct and therefore only physical “actual prohibited his duties In so by the statute. prohibited was not that there was Having held interference.” holding on the Peo arguing, King relies arrеst, the King’s cause for no at 728. How ple Vasquez, 631 N.W.2d charge of resist- the court dismissed state below, ever, reasoned as the district court arrest, sup- motion to granted King’s textually different stat Vasquez involved and then dismissed press glass pipe, the meaningfully different facts. ute and marijuana. charge possession had been Vasquez The defendant § ac- filed this King subsequently “re- Michigan’s with violation of charged arrest was in King alleges that his tion. statute, M.C.L. sisting obstructing” and rights under the First violation of his provided That rele- § 750.479. statute Amendments. Officer Fourth that, “Any person who shall part vant claiming summary judgment, moved obstruct, re- willfully ... knowingly and immunity. The district court assault, ... sist, or wound oppose, beat Ambs’ mo- hearing, granted held a Officer by law to any person persons or authorized tion, Ambs did not and held that Officer in their preserve peace, maintain rights King’s Fourth Amendment violate acts, main- and efforts to attempts lawful King’s verbal interference tain, peace shall be preserve keep ” amounted to a investigation the officer’s Vasquez, 631 guilty of a misdemeanor.... questioning,” “physical interruption § M.C.L. 750.479 (quoting N.W.2d at the ar- probable cause for provided before provided). question as it then that Officer rest. The court concluded was whether Michigan Suрreme Court Amend- King’s First Ambs did not violate in the state statute “obstruction” as used “the fact of the rights because it was ment conduct of a defendant criminalized the po- performance interference” with the officer about his name police who lied to a content of not, rather than the lice duties In that it did age. holding Id. themselves that constituted Supreme words Court held Michigan “threatened, also for the arrest. The court ei- proscribed the basis statute state alternative, held, if there inter- expressly impliedly, physical in the even or ther physical or both interference been a violation of either ference and actual had holding In have been officer.” Id. the violation would not with a rights, statute was limited appeals the “obstruct” this established. now obstruction, emphasized court summary judg- grant physical district court’s ‘obstruct’ uses the word that “the statute ment. part of a list containing five other support idence to a conviction [as Vas- words, ‘resist, assault, namely, ], oppose, quez but whether there proba- ” beat wound’ and that the term [and] had ble cause at the time of the arrest given a meaning “logically related to city’s believe the ordinance had been vio- surrounding five wоrds.” Id. at 715. lated.” Id. (assault, beat, Three of the five verbs and Moreover, the conduct for which King wound) clearly imply physical action. was arrested very different than the
In contrast to the state statute in Vas-
conduct at issue in Vasquez. The defen
quez, the fist of terms in the Columbia dant in Vasquez was charged with obstruc
Ordinance,
],
Township
],
because,
tion
“obstruct!
resist!
after
arrested,
he was
it was
],
impede!
],”
oppose!
presents
]
hinder!
discovered that he had given
apparently physical
less
context in which
age.
false name and
Id. at 714. King, on
interpret
the term “obstruct.” Given
hand,
the other
was arrested after re
difference,
this
obstruction”
peatedly
interrupting
officer who was
imposed
limitation
on the term “obstruct”
questioning a
party.
third
As the district
in Vasquez
apply
to obstruction in
observed,
court
“Plaintiffs conduct in per
separate statutory
context.
sisting to interfere with Officer Ambs’ in
*5
vestigation amounted to
physical
a
inter
directly
This distinction
supported by
is
ruption
Ambs,
of the questioning.” King v.
analysis
§
our
in a
1983
involving
case
an
04-74867,
No.
800751,
2006
for
WL
*6
refusing
provide
to
identifica-
(E.D.Mich.
2006).
Mar.
tion. See
The district
Risbridger
Connelly, 275 F.3d
Cir.2002).
court’s characterization of King’s
569 n. 3
Risbridger
interrup
tion as “physical”
§a
finds
in
support
was
1983 case in which an
Vasquez
officer who
itself, in which
plaintiff
opinion
arrested the
for
the lead
failing
provide
expressly
to
contemplated
identification
on
that such
city
relied
a
actions as refusing
ordinance
to comply
it
a
“[a]ssault,
made
a misdemeanor
with
search warrant
to
would be
obstruct,
resist, hinder,
sufficiently “physical” even
oppose any
under the stat
ute at
in Vasquez:
member of the
issue
police force ...
in
“defendant’s
comply
refusal to
discharge
warrant,
of
duties
with the search
as such.” Id. at
his/her
although not
express
568. In
an
upholding qualified immunity
physical
threat of
de-
interference,
termination,
explicitly rejected
support
we
sufficient to
plaintiffs
charge under
by
reliance on
the statute because
Vasquez: “Unlike the
refus
],
cooperate,
was,
to
Michigan
however,
effect,
statute
defendant
in
Vasquez
[in
language
ordinance,
physically interfering
city’s
of the
with the
which
offi
assault,
cers.”
obstruct,
makes it unlawful to
had the effect however that there was a Fourth Amend- performance of offi- violation, officer’s] [his] King’s arrest, [an ment the time of duties”). Thus, if the Columbia cial even holding application Vasquez subject to Vas- Township Ordinance were the ordinance and facts of this case had “obstruc- quez’s construction of the term clearly not been established. tion,” King’s conduct could be character- quali a claim of considering When in the sense “physical ized as interference” relevant, immunity, dispositive “[t]he fied Officer King’s speech interrupted inquiry determining whether is difficult, way that if not made Ambs clearly еstablished is whether it would be questioning. actual impossible, conduct clear to a that his con reasonable officer Township If the Columbia ordinance duct was unlawful in he con the situation ways suggested in either construed of the Saucier, fronted.” 533 U.S. at above, probable then Officer Ambs had Vasquez interpreted S.Ct. 2151. Because cause to arrest for violation than a statute other the local ordinance on ordinance, Township and there- Columbia Officer relied and considered arrest did
fore the not violate facts that were than very different those rights. Fourth Amendment See Crockett actually Ambs, confronted Vas Officer 571, 580 College, v. Cumberland 316 F.3d quez could not have established (6th Cir.2003). However, if under even that Officer Ambs’ conduct in arresting Michigan holding Vasquez law the were obstruction was without apply extended to to the local ordinance have, unpublished cause. We albeit an case, if and the conduct at in this issue qualified immunity accorded opinion, requirement interference” *6 officer who had an arrest under made interpreted narrowly in new con- were that state statute we concluded was not conduct, King’s as not to text so cover applicable, where law con the state’s case Officer Ambs would still be entitled cerning scope the of the statute was not immunity. clear, sitting and where the court district “Qualified an affirmative de immunity is question actually in the state had held government fense that shields officials that there was under cause the liability damages from for civil insofar as Fed.Appx. statute. Nails v. Riggs, 195 clearly their conduct does violate es not (6th Cir.2006). 303, presents 312 case This statutory rights tablished constitutional the same situation. See also Santana v. have person of which a reasonable would (1st Cir.2003) Calderon, 18, 342 F.3d 30-31 Causey 442 Bay City, known.” v. F.3d (state employee’s right to re process due (6th (internal Cir.2006) 524, quotation 528 job was clearly tain her not established omitted). steps in marks “There are two property clearly because a not interest was (1) whether, analysis: considering the law); established under Puerto Rico allegations most favorable to the Harrison, 863, Young v. 284 F.3d 868-69 injured, right has party constitutional (8th Cir.2002) (evicted guest’s right to be (2) violated, right been whether free from of his warrantless search hotel clearly was established.” Estate Carter clearly not Detroit, room established because his 305, 408 F.3d Cir. 310-11 2005) continuing interest hotel room Katz, 194, was (citing Saucier v. 533 U.S. law). 201, clearly not state 2151, 121 L.Ed.2d 272 established under S.Ct. 150 (2001)). Wаlters, above, Compare Spruytte there 753 F.2d As demonstrated (6th Cir.1985) 498, (denying quali- was no constitutional violation and the first 510-11
613
immunity
process
physically
due
obstruct
fied
for
violations
the officer’s investiga-
meaning of a state regulation
where the
tion.” Id. Such
of an ongoing
obstruction
right
creating
property
was
investigation is
what
precisely
prompted
established).
Summary judgment was
arrest.
King’s
King’s
therefore
on
Fourth Amend-
proper
It
true that
underlying
facts in
ment claim.
Hill involved the defendant’s shouting at
court
in an
properly
attempt
The district
also
to divert their atten-
granted summary judgment
on
tion from his friend during confrontation.
claim
First Amendment
that he
ar
453-54,
Id. at
32
hypothetical
of Hill’s
runner or Colten’s
interruptions
King’s repeated
strates
after the
attempts
speak
to
with Mendez
were not
investigation
Officer Ambs’
ordered Colten
leave.
Amendment. Col-
by the First
protected
Barber,
Greene
tigation, and not for the content of his Judge, dissenting. speech. haveWe reached a similar conclu sion in other involving cases speaking to a majority, much like the district policeman. Toro, In Schliewe v. 138 F. it, court before appears loathe to allow a (6th App’x Cir.2005), instance, сivil rights proceed action to where that we abundantly held “it is clear” that give action would complaints voice to the plaintiff, disorderly arrested under a obnoxious, of an disrespectful likely statute, conduct “was bleeding man, arrested for intoxicated young own whose class- on those him around and threatening less conduct certainly [a led to his arrest. I officer], regardless of the fact that sympathize with that apparent concern. profanity.” he used And in Johnson v. Established jurispru- First Amendment Laccheo, Estate F.2d against dence counsels indulging such con- Cir.1991), security cerns, however, we held that a guard especially in the context who deny police said “no” to permission presented here. pass through gate pursuing while a traf long It has been the law that “the First fic violator “was not arrested for his protects a significant amount but, rather, preventing act of of verbal challenge criticism and directed [the from pursuing officer] the traffic vio police officers,” Houston v.
lator.” 451, 461, 96 L.Ed.2d
Finally, (1987), analysis as with our of King’s 398 even where that verbal criti- *9 above, Fourth Amendment claim satisfy while cism fails to basic standards of King’s arrest did any courtesy not violate constitu- and decorum. good There is rea- tionаl right, and the first step quali- because, son for this. It is “[t]he freedom met, fied immunity analysis is not even if of verbally oppose individuals or chai- 616 489, F.3d thereby risking Delgado, without Swiecicki v. 463 498 action
lenge police
Cir.2006).
(6th
Likewise,
principal
the
characteris-
his First
one of
arrest is
distinguish
nation
we
a free
Amendment claim turns on
resolution
tics which
462-63,
from
state.” Id.
107
claim
police
of his Fourth Amendment
because
must be alleged
S.Ct. 2502.
“want
cause
§
proven
bringing
and
by plaintiff
1983
the majority
I believe that
has
Because
Amendment
suit.”
[First
retaliation]
deference
criti-
paid
not
sufficient
to these
709,
(6th
Barnes v.
449 F.3d
Wright,
principles,
cal
fails
First Amendment
Cir.2006) (internal
marks
quotation
omit-
the material facts in favor of
construe
ted).
respectfully
I
must
non-moving party,
dissent.
The majority’s primary conclusion—that
King did
in First
engage
Amendment
Challenge
I. Public
Of Police Conduct
“speech” severely minimizes the First
—
Enjoys
First Amend-
Substantial
expansive
Amendment’s
reach
cases in
ment Protection.
volving
police
challenges
verbal
cond
In
uct.1
a case
Houston
impli-
the Fourth Amendment is
While
majority
cated,
selectively quotes but does not
really a First
this is
Amendment
adequately explore,2
Supreme
Court
presented
case. The constitutional issues
police
made clear that encounters with the
necessarily
are
intertwined
and cannot
implicate unique First Amendment consid
See
analyzed
isolation.
Enlow v. Tish-
erations.
S.Ct.
County, Mississippi, 962 F.2d
omingo
(1987).
Cir.1992) (First
(5th
Specifically,
L.Ed.2d 398
Fourth
explained
expected
Court
that officers are
arising
Amendment issues
from the same
than an
tolerate far more criticism
aver
inextricably
to be
inter-
facts determined
twined).
age person,
significant
and must exercise
Plaintiff
Sean
Fourth
restraint
to such
largely depends
responding
criticism.
Amendment claim
on the
Id. at
2502. This Court
resolution of his First
claim
has
also
this fundamental concept.
officer
not base his
endorsed
“[a]n
probable-cause
Montgomery
See
McCurdy
County,
determination on
Cir.2001).3
Ohio,
protected by the First
By
Amendment.”
F.3d 512
discussion,
primary
granting qualified
majority
1. As its
basis for
which the
dis-
immunity, majority
con-
concludes that no
cuss.
Secondarily,
occurred.
stitutional violations
concludes,
it
cryptically,
more
somewhat
Supreme
gen-
3.The
and this Court’s
Court’s
rights
"clearly
at issue were not
estab-
jurispru-
eral discussions of First Amendment
any
lished” in
event.
McCurdy
dence in Hill
are
rele-
legal
presented
vant to the
issues
here. The
majority quotes
example,
For
an exam-
majority acknowledges that the facts in Hill
ple provided
municiрality
"a
in Hilt
consti-
shouting
involved an individual
at a
tutionally may punish an individual who
attempt
officer in an
to divert the officer’s
near a
chooses to stand
friend,
away
attention
from the individual’s
attempt
engage
persistently
the officer
distinguishes
by stating
only
but
Hill
that the
directing
conversation while
officer is
Court "did not hold that such actions could
busy
traffic at a
intersection.” 482 U.S. at
not be
...
it ruled that the
criminalized
ordi-
infra,
463 n.
617
(and other)
ignoring the heart of these
degree
er
of restraint’ than the average
authorities,
majority
citizen,
has failed to es-
likely
and thus be less
respond
to
”
tablish a constitutional baseline from which belligerently
‘fighting
to
'words.’
482
begin
inquiry.
to
its constitutional
To that
462,
Lewis,
at
U.S.
2502 (citing
S.Ct.
end,
important
I think it is
to note some of
970) (citation
135,
The Hill
First
Court then endorsed Justice
(6th
”,
Powell’s
Amendment.’
240 F.3d
observation in his Lewis concur-
Cir.2001)
properly
(citing
rence that “a
City
trained officer
Glasson v.
Louis-
reasonably
‘exercise,
ville,
Cir.1975)).
be expected
high-
518 F.2d
4. That
the Hill Court confirmed
majori-
“There can be
events,
action,
at
own
of the
there
disagreement
to
with state
Ambs’s
version
express
ex
factual
in the record
reprisal
support
based on the
is little
for
without fear of
majority’s
unequivocally among
pro
findings
the
the
factual
and ultimate
pression, is
by
Amend
conclusions.
legal
the First
provided
tections
519-20.
also Barrett v.
ment.” Id. at
See
Disputes
Entry
II. Factual
Prevent
Of
(6th
130 F.3d
264
Cir.
Harrington,
Summary Judgment
Stage.
At This
1997) (“[T]he
right
First
is well-established
public
criticize
officials
majority’s
procedur-
The
conclusions are
by ample
law ...
it is
case
supported
ally
they
grounded
flawed because
are
that a
official’s re
public
well-established
upon
notably,
a version of the facts that
if
exercising
against taliation
individual
exclusively,
majority
Ambs. The
not
favors
rights is a
her First Amendment
his or
light
viewed the
in a
has not
evidence
most
1983.”).
§
violation of
King,
favorable
as the relevant stan-
require.
misstep is particularly
dards
This
absolute,
few,
any,
if
are
rights
While
problematic because the material facts re-
doubt, therefore,
there can be little
lating
to the “manner” in which
activ-
challenge police
public’s
the
spoke
disputed.
are
Those facts are criti-
ity
pro-
enjoys significant constitutional
they
King’s
cal because
dictate whether
and,
“Physically obstructive”
tection.
“actively”
speech
“physically”
or
interfered
therefore,
unprotected speech should
and,
thus,
Ambs’s investigation
These
exception
the
and not the rule.
it
constitutionally protected.
whether
is
concepts
as the
broad-based
should serve
starting point
analysis; yet,
of the Court’s
Legal
A.
Standard.
majority
fails even to mention them.
Rather,
nar-
analysis
majority correctly
a much
The
identifies the
its
evidences
an-
alytical
Amendment.
framework
rower view
First
immuni-
King’s
speech presented
ty analysis.
applies
It
simply
Whether
defense
“physical
broadly,
expense
obstruction” to Ambs’s investi-
too
and at
of expan-
gation
“Quali-
inquiry
simply
protections.
is an
must be
sive First Amendment
broadly protective
immunity is
resolved with these
fied
an affirmative defense
government
in mind.
principles
that shields
officials ‘from lia-
bility
It
resolved
for сivil damages
The fundamental
issue
is
King’s
of
statements. Despite its com
whether,
extеnt,
or to what
the First
“only
ment
real difference be
protects
speech
party
Amendment
of a
[King’s]
tween
testimony
[Ambs’]
who, during
police,
officer’s conversation
[King’s] contention that he
spoke
never
(i.e.,
with an
an investigation),
[Ambs],”
interviewee
over
the district court
found
interjects
advising
Ambs,
comments
the inter- King “persisted in speaking over”
speak
viewee that he does not have to
premised
its
on
conclusions
that find
128, 130.8
majority
the officer.7 The
agrees
ing. JA
Inc.,
242,
performs
occasionally
Liberty Lobby,
5. This Court
a third
Anderson v.
step
plaintiff
(1986).
which asks "whether the
offered
with Mr. Klein.”
impact King’s
In addition to the
version
recognize
the con- of the facts has on the
obstruc-
Though
appears
it
to
flict,
majority disregards
question
the conflict’s
tion”
it calls into
inquiry,
analysis.
impact
majority’s
critical
on the
belief that there is no evidence
by
suggest
to
was motivated
Ambs
King
that he told his
While
admits
If
King’s speech.9
King’s
the content of
speak”
times “not
friend several
speaking” truly
“act
motive
was the
Ambs,
even after Ambs threatened to
once
actions,
majority
behind Ambs’s
as the
word,”
him if
one more
he
he “said
concludes,
likely
more
Ambs
that he did not
presented
has
evidence
close,
interfere,
simply
would have
let the door
Ambs, or otherwise
speak over
necessarily
King
would have removed
from
verbally,
with Ambs’s at-
physically
then-ongoing
equation,
inter-
continued with his inves-
tempts to conduct the
Yet,
2007),
Amendment.”).
quali
by
in which this Court denied
tected
the First
cases
warning
nullify
by claiming
immunity,
district
used Ambs’s
fied
there is no
court
materiality
disputed
facts.
JA 130.
evidence here that Ambs's decision to arrest
by
King's
the content of
was motivated
cases,
speech.
Court concluded
In both
this
majority attempts
distinguish
9. The
Greene
Barber,
(6th Cir.2002),
prevented summаry judg
that such evidence
acted to the content of Majority’s Factual Conclu- in which it was deliv- er than the manner sions. ered. viewing broad Even the facts most
Because the First Amendment’s away only give majority fall when favorable Ambs should protections because, type “physically pause, rises to the level of That is moreover. Ambs’s *14 investiga- obstructing” ongoing police the arguably support version cannot the dis- tion, (or meaning- the can reach a Court majority’s) trict court’s the factual find- regard ful determination in that as a mat- First, ings. expressly Ambs testified that surrounding ter if the circumstances law King “physically never interfered” with his questioned speech undisputed.11 the arе investigation. JA This alone is tell- however, majority, embraces Ambs’s The ing, completely ignored by majori- and facts, and, of certain of the while version Second, ty. perhaps and most relevant to that undercut ignoring undisputed points purported characterization of the proper version, that concludes: “Because of King’s speech, “obstructive” nature of is King’s repeated exhor- time and manner that, arrest, just prior King the fact to his ... his statements were not consti- tations physically was about to isolated from man- tutionally protected.” The time and subject inquiries and the of Ambs’s Ambs comments, however, King’s ner of are Klein). (ie., This is true even under clearly disputed. Ambs’s version of the events. While there may dispute be a as to whether Klein was majority ignores
The the fundamental shutting the door to the process procedural requirement that the Court King house as made his final comment— light view the facts in a most favorable to on that Enlow, because the record is not clear King.12 (citing 962 F.2d at See parties agree that when the fi- point in Hill of Supreme recognition Court’s —all made, King nal comment was was inside protections, broad First Amendment and house, a door that was at least immunity inap- behind conсluding that is closed, that Klein and Ambs partially are in dis- propriate when material facts facts, glass house in a vestibule. pute presented by and the as the were outside the "favorably supra, 10.Similarly, reasonably 11. As noted if the viewed” one could conclude (i.e., favor) sup- King's evidence King simply that Ambs arrested occurred, port the conclusion that a violation keep quite. disobeyed Ambs's command to dispute immaterial. then the is Disobeying stop exercising a con- an order to however, right, stitutional cannot serve acceptance violates both the 12. Such blind cause for an arrest. Swiecicki summary judgment conventional standard (6th Cir.2006) Delgado, 463 F.3d 56) qualified immunity (per and the Rule (“An probable-cause not base his summary judgment in Saucier standard outlined speech protected by on determination Katz, Amendment.”). First (2001). L.Ed.2d 272 (3) jury at that there is evidence from which agree point, also parties The standing between Ambs that the reasonably was not could conclude result- Klein; own inside the house. he was on his by the content of ing arrest was motivated speech. moreover, note, deposition Ambs’s
Of testimony descriptive far more with re- is King spoke in which gard to the “manner” Support D. Ambs’s Does Not Version shortly report prepared than is the he Majority’s Legal Conclu- example, arrest. For while after sions. King disrupted that
Ambs testified
assuming
repeatedly
did
Even
him, and
investigation by interrupting
“interrupt”—
“speak over”—or otherwise
attempted
him as he
“speaking over”
the three comments that Ambs
(in Ambs with
Klein,
police report
initial
interview
his
objectionable, given
found
the actual un
almost
which he details the events
issue
occurred)
encounter,
immediately
they
paints
disputed
circumstances of
after
picture.
much
JA 48-51.
unlikely
present
less obstructive
comments
King’s
even
report
Nowhere
his
does Ambs
per
to Ambs’s
ed
obstruction”
him,
suggest
King “spoke
over”
con-
any
formance of his duties in
event. As
him,
tinually interrupted
or that
above,
ap
outlined
this standard must be
anything
amounted to
other
comments
basis,
case-by-case
on a
plied
intermittent,
apparently
obnox-
than
principle
disruptive,
of the well-settled
ious,
Though
friend.
advice to his
obnoxious, frustrating
overtly
and even
*15
does record that he threatened to arrest
usually
rude
to a
officer
comments
King King
stop talking,
if
did not
he de-
protected
expect
are
because officers are
nothing
just
other than
that —talk-
scribes
higher degree
ed to exercise a
of restraint.
ing.
report
does not describe an over- Hill,
462, 107
482 U.S. at
S.Ct. 2502.
encounter, certainly
ly disruptive verbal
Hill,
considering
In
of
courts
not one that would amount to a
speech-related interferences far more dis-
investigation.
obstruction” of the
Ambs’s
ruptive,
disrespectful
confrontational
accounts, therefore,
own
are less than uni-
than
have
presented
those
here
found the
form.
at
For
speech
protected.
issue to be
ex-
version, therefore,
Even
shows
Ambs’s
ample, McCurdy,
in
concluded
Court
(and
best,
King posed,
a moderate
plaintiff
that the
had a First Amendment
excisable)
in-
easily
impediment to Ambs’s
(and
verbally
essentially
right
challenge
simply
teractions with Klein. It
cannot be
disrupt)
officer’s surveillance of
broadly-estab-
public’s
the case that
friends,
though
him and
even
chal-
his
his
challenge police
lished
conduct can
lenge
repeatedly cursing
included
at the
an
quickly
be so
aside because
set
refusing
provide
officer and
identifica-
chal-
claims
that the verbal
after-the-fact
obey
tion or to
the officer’s order that he
lenges
question
overly disrup-
became
“return to his home.” 240 F.3d
520.
(1)
particularly
tive. This is
true when:
Enlow,
Similarly,
the court concluded
provided multiple
the officer has
accounts
plaintiffs repeated inquiries
that the
as to
arguably
that are
distin-
events
whether officers had search or arrest war-
(2)
testimony
guishable;
there is
contra-
rants,
photographing
and his
of the offi-
dicting
speech
the officer’s claim that
(both
search,
they
enjoyed
cers as
executed their
“physically disruptive”
in terms of
protection
First
because those
speech
the time and manner of the
and the
Amendment
activities,
involved);
despite
disruptive
of
their
effect on
relative locations
those
activities,
enjoy
not
Amend-
speech
not rise to the
First
did
the officer’s
unrest,
protection.
an incitement ment
or constitute
level of
action. 962 F.2d
immediate lawless
Clearly,
examples
materially
these
are
Indeed,
in Hill referenced
the Court
509.
distinguishable from even Ambs’s version
incredibly
speech
confrontational
facts,
essentially
which is
Orleans, 415 U.S.
City
New
Lewis
to a
interruptive
made three
comments
(1974),
as
39 L.Ed.2d
friend, the last of
was made from
protected,
but
example
“provocative,”
partially
behind a
inside the house and
Recall,
plaintiff
Lewis involved
speech.
(or closing) door. Unlike the Hill
closed
at an officer
yelling obscenities and thrеats
examples,
engaged
Ambs was
to obtain a driver’s
attempting
who was
potentially dangerous police activity like
Hill,
husband.
plaintiffs
from the
license
directing busy
pursuing
traffic or
felon.
461, 107
482 U.S. at
in a non-contentious con-
engaged
He was
these,
apparently willing partic-
versation with an
of the facts
comparison
Careful
one
other,
ipant.
at issue here
Nor was Ambs faced
cases with those
(even
them),
eliminating King’s purported
for
in-
majority’s
option
view of
under the
i.e., arresting him.
King’s speech
Unlike the
to the conclusion
leads
terference —
examples,
Hill
Ambs could
obstructive with- officers
simply
physically
was not
equation by
from the
First
have removed
meaning
in the
of established
asking
the house or
closing
doubt
the door to
jurisprudence. Should
private setting
a more
issue,
provide
own “exam- Klein to
remain on this
Hill’s
Lastly, King’s com-
speech seem their conversation.
ples”
physically
obstructive
Ambs,
they
not directed to
In
addresses ments were
to resolve it.
Court
part,
to Klein.
In
the Hill
speech
in which
could were directed
hypothetical
two
obstructive,” and,
suggest
becomes
examples
qualify
“physically
therefore,
when it diverts the officer’s
narrowly-
via a
“obstructive”
prohibited
*16
doing,
hе is
away
in-
attention
from what
example
The first
tailored ordinance.13
efficacy
thereby risking
safety
a
a
who stands near
person
volves
efforts,
merely
opposed
as
attempts
engage
the officer’s
persistently
officer and
commu-
interrupting the officer’s efforts to
in conversation while the officer
the officer
most, At
party.
nicate with a third
directing
busy
at a
intersection.
traffic
Ambs)
(as
by
amount-
n.
must be with one cability here is not the critical inquiry— another; they piece- cannot considered certainly it inquiry. is not the sole meal. “An officer probable- not base his Amendment, speech protected
As to the Fourth the criti- cause determination on inquiry cal is whether Ambs should have the First Amendment.” Swiecicki v. (6th Cir.2006). that, known under the facts and circum- Delgado, 463 F.3d presented by King, stances of this case as implications Given the First Amendment probable King’s here, cause did not exist for proper inquiry is whether Ambs majority arrest. The limits its applicable should have known about the inquiry Vasquez cause “the ... whether First Amendment standard like Vas- holding [applies] to the ordinance and facts “established”), quez (only far more abso- majority explains, of this case.” As the in lutely prevents probable cause for an ar- People Vasquez, 465 Mich. subject speech rest unless the amounts to (2001), Michigan Supreme N.W.2d 711 obstruction.” 482 U.S. at Court whether a different addressed state 463, 107 Whether Ambs in- required “physical obstruction statute (wheth- should Vasquez have known about terference” before an officer could arrest therefore, er or not it applies), is beside Vasquez for obstruction. The court con- point given the greater First Amend- *17 physical cluded that interference was re- implications presented ment in this case. quired under the statute at issue in that regard, In this the Fourth Amendment case. qualified immunity analysis collapses into because, that here,14 of the First Amendment Assuming Vasquez apply were to case, the context of this the cause majority’s which is the sole basis for the determination turns on assumption that a criminal violation oc- whether was curred, majority engaged protected speech. resolves the second Whether prong qualified right of the Fourth Amendment the First Amendment at issue was established,” immunity analysis therefore, “clearly disposi- as follows: is According majority, 14. quirement Vasquez applied to the a Fourth from to the local purportedly Amendment would have violation occurred ordinance under which Ambs ar- only "physical King. here if the interference” re- rested Ohio, County, inquiry, as F.3d Cir. of the Fourth Amendment tive 2001). protects First Amendment “[T]he well. amount verbal criticism significant a right, As to the First challenge police directed at officers.” majority single-sentence a provides at 2502 (emphasis S.Ct. holding relative to the second alternative added). Despite any statute or ordinance immunity analysis. qualified prong of Hill, standard, authorizing different It states: until rises to the level of officer would not Because a reasonable ongoing investigation, obstruction” to an it have known that enforcement Co- protected.15 remains Id. This is principle Township obstruction ordinance lumbia well-established. case violated the in the context majority disagree The with this Amendment, not right was First precedent, simply concludes well-settled Ambs clearly established Officer that, context, reasonably in this Ambs immuni- would be entitled to arresting King should have not known ty.... noted, however, would run afoul of it. As added). primarily Because it (Emphasis upon majority the “context” which the re that no its decision on the conclusion rests lies embraces Ambs’s version of the facts occurred, ma- violations constitutional (and arguably embraces one is even jority analysis support no provides more favorable to than his own de simply, Put the ma- the above conclusion. facts). contrary, scription of those To the First Amendment jority concludes I have believe reasonable should clearly right established because that, twenty years, has known law First Amendment conduct oc- protected no that, regardless of a statute or ordi been circularity, Putting curred. aside its contrary, nance to the the First Amend at ultimate conclusion that the issue protects “interruptive” speech in this ment can here was not established not be 463, 107 2502. context.16 Id. law squared with the state of the when the arrest occurred. majority’s today provides a decision officers who seek to broad shield twenty years ago, Supreme
At least
against those
enforce obstruction statutes
reason, indi-
Court made clear
within
speech-related challenges
engaged
subject
viduals
not be
to arrest mere-
simply cannot be
police activity.
It
challenge po-
ly
they interrupt
well-established,
however,
squared,
lice conduct. Houston
indeed,
and,
First Amendment
451, 463,
important
Accordingly, (1)
majority’s that: as a mat- conclusions law, violations oc-
ter no constitutional (2) occurred, curred; if even violations rights that were violated
the constitutional majori-
were not established. The
ty protec- the broad improperly minimizes context, apply in this and rests
tions procedurally-flawed on a
its conclusions the facts and evidence the rec-
view of
ord. most favorable to Viewed
King, supports the record conclusion and Fourth
that established First Amend- violated. I rights
ment have been do did. I approve like or of what
believe, however, important that there are why
reasons must tolerate it.17 I we grant
would reverse the trial court’s
summary judgment favor of Ambs on
qualified immunity grounds. DUNLAP, Plaintiff-Appellee,
David AUTHORITY,
TENNESSEE VALLEY
Defendant-Appellant.
No. 07-5381. Appeals,
United States Court
Sixth Circuit.
Argued: 2008. Feb.
Decided and Filed: March
2008.
opined
thought
Mr.
As
Justice Holmes
when ad-
that we hate." United
freedom for
dressing
unpopular
Schwimmer,
644, 654-55,
a citizen's
to hold
States v.
retaliation,
beliefs without fear
"if there
is
J.,
(1929) (Holmes,