JOSEPH MICHAEL LOGSDON, Plaintiff-Appellant, v. CHARLES HAINS and DANIEL MCSHANE, Defendants-Appellees.
No. 06-4085
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 6, 2007
07a0252p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 05-00541—S. Arthur Spiegel, Sr., District Judge. Argued: April 26, 2007. Decided and Filed: July 6, 2007. Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.
ARGUED: Thomas W. Condit, Cincinnati, Ohio, for Appellant. Richard Ganulin, CITY SOLICITOR’S OFFICE FOR THE CITY OF CINCINNATI, Cincinnati, Ohio, for Appellees. ON BRIEF: Thomas W. Condit, Cincinnati, Ohio, for Appellant. Richard Ganulin, CITY SOLICITOR’S OFFICE FOR THE CITY OF CINCINNATI, Cincinnati, Ohio, for Appellees.
OPINION
CLAY, Circuit Judge. Plaintiff, Joseph Michael Logsdon, appeals the district court’s order granting a
BACKGROUND
Plaintiff has long been “an active member of the pro-life movement” who, specifically, engages in sidewalk counseling and peaceful protest outside abortion clinics in and around Cincinnati, Ohio.1 (J.A. at 8) Plaintiff alleges that he has “never threatened or committed any act of violence” while counseling or protesting. (Id. at 9) Plaintiff admits, however, that on several occasions, he crossed the property line of the abortion clinics to communicate with clinic patients and hand them literature. Accordingly, Plaintiff has been charged with and convicted of criminal trespass in the past. Yet, Plaintiff claims that “he has always treated judges and prosecutors with respect, served his sentence(s) with dignity, and complied with any related court orders.” (Id.) Plaintiff characterizes himself as a “regular presence” at Cincinnati Women’s Services (“CWS”), an abortion clinic in Cincinnati. Plaintiff admits that, on the basis of his experience at CWS and with its President, Debi Jackson (“Jackson”), his “regular presence” is an unwelcome presence. (Id.)
Defendant Charles Hains (“Hains”), an officer of the Cincinnati Police Department, responded to the scene and placed Plaintiff under arrest. Defendant Hains did not have a warrant for Plaintiff’s arrest and did not observe the incident at issue. Additionally, Defendant Hains refused to listen to a witness’s account of the incident, admonishing her to “Tell it to the judge.” (J.A. at 11) Ultimately, Defendant Hains arrested Plaintiff for criminal trespass and disorderly conduct. Plaintiff remained in custody for approximately four hours, after which time he was released on bond. Pursuant to these charges, Plaintiff appeared in Hamilton County Municipal Court on several occasions along with counsel. The court conducted a bench trial on May 10, 2004, finding Plaintiff guilty of criminal trespass, but acquitting him of disorderly conduct. On appeal heard April 22, 2005, the Hamilton County Court of Appeals reversed Plaintiff’s conviction for criminal trespass upon a finding that Plaintiff was privileged to enter CWS property to retrieve his sign. Over the course of these proceedings, Plaintiff incurred attorney fees in excess of $10,000, and avers that he suffered various other harms and indignities.2 Plaintiff avers that Defendant Hains acted in “malicious and/or reckless disregard of [Plaintiff’s] clearly established statutory and constitutional rights.” (J.A. at 12)
The second encounter took place on June 18, 2004. That day, Plaintiff again counseled clinic patients and protested on the public sidewalk near CWS. In order to communicate with a clinic patient arriving in the CWS parking lot that day, Plaintiff walked into an adjacent public park and spoke to the patient through a chain link fence. Plaintiff describes the conversation as “not hostile” and says it “lasted for several minutes” before the clinic patient entered the clinic. (J.A. at 13)
On December 8, 2005, Defendants filed a motion to dismiss Plaintiff’s
Ultimately, the district court granted Defendants’ motion to dismiss. In its order dismissing Plaintiff’s case, the district court reasoned as follows:
[Plaintiff’s] Fourth Amendment claims clearly relate to his arrests, and his First Amendment claims are grounded in the theory that his arrests impeded his freedom of expression and of assembly. Should the arrests be supported by probable cause, then none of Plaintiff’s constitutional claims survive. Having reviewed this matter, the Court finds the arresting officers, in relying on testimony of a reliable witness and finding [Plaintiff] at the scene of the alleged trespass, reasonably believed that Plaintiff committed trespass. Accordingly the Officers had probable cause.
Logsdon, 2006 WL 1793243, at *4. Additionally, the district court found that even if it erred in finding no constitutional violations, Defendants were each protected by the doctrine of qualified immunity. Id. at *8. Specifically, the district court opined that Defendant “Hains was clearly reasonable in arresting [Plaintiff,]” and that Defendant McShane “at worst . . . reasonably misapprehended the law governing the circumstances he discovered.” Id. Plaintiff timely appealed the district court’s order.
DISCUSSION
I. PLAINTIFF’S FEDERAL CONSTITUTIONAL CLAIMS
A. Standard of Review
We review de novo the district court’s grant of a
B. Qualified Immunity and Plaintiff’s Fourth Amendment Claims
Plaintiff contends that the district court erred in dismissing his
Qualified immunity shields “government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As a threshold matter, we first consider whether “the facts alleged show the officer’s conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If, upon review, we determine that the officer in question violated the claimant’s constitutional rights, we proceed to a second question: whether at the time of the alleged violation that right was “clearly established.” Id. Accepting Plaintiff’s factual allegations as true and drawing all reasonable inferences in his favor, we find that the district court erred in dismissing Plaintiff’s Fourth Amendment claims against Defendants Hains and McShane. We approach the question within the framework of qualified immunity analysis, and first conclude that, on the facts alleged, Defendants Hains and McShane each violated the Fourth Amendment in arresting Plaintiff absent a warrant inasmuch as they lacked probable cause. See Saucier, 533 U.S. at 201.
The Fourth Amendment protects the right of individuals to be free from improper arrest and detention.
“Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Henry v. United States, 361 U.S. 98, 102 (1959); see also Beck v. Ohio, 379 U.S. 89, 91 (1964); Illinois v. Gates, 462 U.S. 213, 238 (1983). The inquiry “depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest,” Devenpeck, 543 U.S. at 152, where supported by “reasonably trustworthy information.” Beck, 379 U.S. at 91. No overly-burdensome duty to investigate applies to officers faced with the prospect of a warrantless arrest. In initially formulating probable cause, they need not “investigate independently every claim of innocence.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000). And after the officer determines, on the basis of the facts and circumstances known to him, that probable cause exists, the officer has no further duty to investigate or to search for exculpatory evidence. Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999); Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988). However, the initial probable cause determination must be founded on “both the inculpatory and exculpatory evidence” known to the arresting officer, Gardenhire, 205 F.3d at 318 (emphasis in original); Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999), and the officer “cannot simply turn a blind eye toward potentially exculpatory evidence.” Ahlers, 188 F.3d at 372; see also id. at 371 (noting that officers may not “make hasty, unsubstantiated arrests with impunity”); Fridley, 291 F.3d at 873 (“The officer may not ignore information which becomes available in the course of routine investigations.”). “In general, the existence of probable cause in a
“Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.” DeFillippo, 443 U.S. at 36. Defendants each arrested Plaintiff for criminal trespass.3 In Ohio, an individual commits criminal trespass by “[k]nowingly enter[ing] or remain[ing] on the land or premises of another” absent “privilege to do so.”
At the time Defendant Hains arrested Plaintiff, Hains knew only that Jackson called the Cincinnati Police to complain that Plaintiff had entered the CWS property.4 Upon arriving at the scene, Defendant Hains refused to listen to an eyewitness account of the incident, directing the witness to “Tell it to the judge.” Although Plaintiff admits that he knowingly entered the premises of CWS to retrieve his sign on October 28, 2003, on the facts alleged in Plaintiff’s complaint, Defendant Hains did not observe this conduct, nor did Plaintiff admit such conduct to Defendant Hains at the scene. Similarly, the facts and circumstances known to Defendant McShane, as alleged in Plaintiff’s complaint, were that “someone at CWS called the City of Cincinnati Police Division alleging that [Plaintiff] had trespassed.” (J.A. at 13) Like Hains, McShane did not witness the alleged trespass. Also like Hains, Defendant McShane declined to hear a sidewalk counselor’s “attempted explanation” of the incident. (Id. at 12-13)
Reading Plaintiff’s complaint in the light most favorable to him, Defendants failed to reasonably determine whether they had probable cause. In the course of initially assessing whether probable cause to arrest Plaintiff existed, Defendants respectively “turn[ed] a blind eye” to potentially exculpatory evidence when they refused to listen to the witnesses at the scene. A prudent officer must draw reasonable conclusions from the facts and circumstances known to him as supported by “reasonably trustworthy information.” See Beck, 379 U.S. at 91. It appears that Defendants deliberately excluded from a totality of known facts and circumstances information that might bear on the accuracy, reliability, or trustworthiness of the report that Plaintiff had trespassed on CWS’s property. To that extent, Defendants did not act as “prudent officer[s]” and their conclusions cannot be deemed “reasonable.” Rather, potentially conflicting explanations from these eyewitnesses would have informed Defendants’ probable cause analyses, giving them reason to
At oral argument, Defendants argued that officers need not entertain any exculpatory evidence to the contrary when they receive a call from a “reliable source” reporting purportedly criminal activity. Defendants’ argument is undermined as a result of Defendants’ failure to offer a persuasive explanation of what constitutes a “reliable source.” For purposes of this discussion, we shall limit our definition of reliable source to someone with respect to whom there is no apparent reason to question the person’s reliability. Probable cause assessments depend on the totality of the circumstances known to the officer. Here, the totality should have encompassed readily available eyewitness accounts, but did not because Defendants refused to listen. We express no opinion as to whether, where the totality of the circumstances consists solely of a report of criminal activity from a reliable source, probable cause exists to arrest. That case is not before us.6 Even assuming that CWS constitutes a “reliable source” here, Defendants deliberately disregarded available evidence and, consequently, failed to reasonably formulate probable cause. Accordingly, Defendants’ argument has no merit in this case.
Our conclusion is only that sufficient facts have been alleged to avoid dismissal on the pleadings. We conclude that Plaintiff has stated a claim that Defendants lacked probable cause to arrest Plaintiff and, therefore, that they violated Plaintiff’s Fourth Amendment rights.
We next consider whether Plaintiff’s rights were “clearly established.” Saucier, 533 U.S. at 207. On this point, we determine “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. Qualified immunity cannot be invoked to shield an officer from liability where “in light of pre-existing law, the unlawfulness” of his conduct was “apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Pre-existing law need not address the very question at hand; rather, “[t]he contours of the right must be sufficiently clear.” Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 830 (6th Cir. 2007). In June 2004, “the law was clearly established that, absent probable cause to believe that an offense had been committed, was being committed, or was about to be committed, officers may not arrest an individual.” Gardenhire, 205 F.3d at 313 (quoting Dietrich, 167 F.3d at 1012) (internal quotation marks omitted). There has been no sea change in this body of law since Plaintiff’s arrest in June 2004. As a result, the district court erred in finding Defendants protected by qualified immunity.
C. Qualified Immunity and Plaintiff’s First Amendment Claims
Plaintiff additionally alleged violations of his rights under the First Amendment. Before the district court, Plaintiff denied asserting a First Amendment retaliation action. Rather, he claimed to challenge “Defendants’ actions in removing him from the public sidewalk, when he had done nothing wrong, [as] a per se violation of his First Amendment freedoms.” Logsdon, 2006 WL 1793243, at *4. As the district court correctly noted, Plaintiff’s “First Amendment claims are grounded in the theory that his arrests impeded his freedom of expression and of assembly.” Id. The district court therefore concluded that “[s]hould the arrests be supported by probable cause, then none of Plaintiff’s constitutional claims survive.” Id. Because the district court erred in granting Defendants’ motion to dismiss Plaintiff’s Fourth Amendment claims, the district court’s basis for dismissing Plaintiff’s First Amendment claims is no longer valid. Examining Plaintiff’s First Amendment claims de novo, with reference to other plausible theories, we reverse the district court’s dismissal of Plaintiff’s First Amendment claims.
We begin by considering whether Defendants violated Plaintiff’s constitutional rights. See Saucier, 533 U.S. at 201. On appeal, Plaintiff does little to clarify how Defendants violated his First Amendment rights. Plaintiff does not argue that Defendants arrested him in retaliation for his exercise of speech, nor could he, having disavowed this argument before the district court.7 Rather, Plaintiff cites Frisby v. Schultz, 487 U.S. 474 (1988) and Pouillon v. City of Owosso, 206 F.3d 711 (6th Cir. 2000), apparently in support of an argument that the state impermissibly regulated speech conducted in a public forum.
Frisby v. Schultz concerned a facial First Amendment challenge to a city ordinance that banned all picketing “‘before or about’ any residence.” 487 U.S. at 476. There, the plaintiffs were abortion protestors who sought to picket on a public street in front of an abortion provider’s home, and who were prevented from picketing after the city adopted the prohibitive ordinance. Id. The Supreme Court in Frisby analyzed the plaintiff’s challenge under the public forum doctrine, first acknowledging that the ordinance restricted speech in a “traditional public forum” inasmuch as it prevented protest on public streets and sidewalks. Id. at 479-81. The Frisby court next observed that the appropriate level of scrutiny depends on whether the ordinance is content-neutral in marking the bounds of permissible speech. Id. at 481. Finding the city’s ordinance to be content-neutral, the court went on to consider “whether the ordinance is ‘narrowly tailored to serve a significant government interest’ and whether it ‘leave[s] open ample alternative channels of communication.’” Id. at 482 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). Construing the ordinance narrowly, the court ultimately upheld the ordinance, finding that it preserved adequate alternative channels of communication, and that it served the significant government interest of protecting residential privacy. Id. at 484.
In Pouillon v. City of Owosso, police arrested the plaintiff, an anti-abortion protestor, purportedly for “‘refusing a lawful police order’ to move, and ‘obstructing passage to a public building.’” 206 F.3d 711, 713 (6th Cir. 2000). There, the plaintiff had been protesting abortion on the steps of city hall when officers instructed him to move because he “was obstructing entry to and egress from city hall.” Id. at 714. Plaintiff refused. Id. Police then arrested him, took him into custody, and subsequently booked and charged him under a city ordinance that prohibits interference with police in the conduct of their duties. Id. The plaintiff in Pouillon brought a
We concluded in Pouillon that the city hall steps were a traditional public forum and, accordingly, that “protest on the steps of city hall could not be prohibited altogether.” Id. at 717. We then went on to consider “whether requiring [the plaintiff] to move to the sidewalk was a reasonable time, place, and manner restriction that . . . left open ample alternative channels of communication.” Id. at 717-18. Because the plaintiff had previously been harassed while protesting on the streets, and allegedly had stopped protesting on the street for that reason, we found that a question of fact remained as to whether the requirement to move to the sidewalk left open ample alternative channels of communication to the plaintiff, or alternatively “inhibit[ed] his protest.” Id. at 718. We additionally noted an open question of fact as to “whether [the plaintiff’s] protest . . . was impeding access to city hall such that it was reasonable to require him to move.” Id. at 717.
In the instant case, Plaintiff averred that he engaged in anti-abortion protest and counseling from the public sidewalk and public park adjoining the CWS property, both quintessentially public fora. See Perry Educ. Ass’n, 460 U.S. at 45 (“[S]treets and parks . . . ‘have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’”) (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)). On the facts alleged in Plaintiff’s complaint, Defendants each removed Plaintiff from the public fora, thereby causing him to cease his protest and counseling, ostensibly for violating Ohio’s criminal trespass law. In public fora, “[r]easonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.” Perry Educ. Ass’n, 460 U.S. at 46. Plaintiff’s complaint alleges that Defendants each “[d]emonstrat[ed] a blatant bias against [Plaintiff] and in favor of doing whatever CWS wanted.” (J.A. at 11, 13) Construing Plaintiff’s complaint liberally, Plaintiff alleges that Defendants were motivated by the content of his speech in removing him from the public forum, and not by any purported criminal trespass. Accordingly, Plaintiff has stated a claim that Defendants violated his First Amendment rights by restricting his speech on the basis of content.8
Next, we consider whether qualified immunity applies to the alleged First Amendment violation, and we specifically look to “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. It has long been the case that content-based regulations of the citizen’s right to engage freely in speech in quintessential public fora presumptively violate the First Amendment. See Perry Educ. Ass’n, 460 U.S. at 46; see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“The First Amendment
II. PLAINTIFF’S STATE LAW CLAIMS
A. Standard of Review
This Court reviews a district court’s grant of a
B. State Law Tort Claims
The district court held that Plaintiff’s state law claims of false arrest, false imprisonment, and malicious prosecution could not be sustained because each of those claims required a showing that Plaintiff had been unlawfully detained. We reverse the district court’s dismissal of Plaintiff’s state law claims.
We agree with the district court that each of those claims in some way required proof of unlawful detention. First, to succeed on a claim of malicious criminal prosecution, an Ohio claimant must show three elements: “(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused.” Trussell v. Gen. Motors Corp., 559 N.E.2d 732, syllabus (Ohio 1990) (emphasis added). Second, “[f]alse imprisonment occurs when a person confines another intentionally ‘without lawful privilege and against his consent within a limited area for any appreciable time, however short.’” Bennett v. Ohio Dep’t of Rehab. & Corr., 573 N.E.2d 633, 636 (Ohio 1991) (emphasis added). Third, the essential elements for a false arrest claim in Ohio are “indistinguishable from a claim for false imprisonment in that each claim requires proof that one was intentionally confined . . . without lawful justification.” Evans v. Smith, 646 N.E.2d 217, 225 (Ohio Ct. App. 1994) (emphasis added). Because we conclude that Plaintiff’s complaint states a claim that Defendants unlawfully arrested Plaintiff, we reverse.
C. State Law Constitutional Claims
Finally, Plaintiff also alleged violations of the Ohio State Constitution in his complaint – specifically, of Article I, Sections 11 and 14. The district court below never squarely addressed Plaintiff’s state constitutional claims. On appeal, Plaintiff merely argues that if this Court finds Plaintiff stated a claim for violations of the U.S. Constitution, then the “state law claims” should be reinstated on remand. (Pl.’s Br. at 28)
CONCLUSION
For the above reasons, we REVERSE the district court’s order and REMAND for further proceedings consistent with this opinion.