RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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KENNETH O. KENNEDY,
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Plaintiff-Appellee,
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No. 09-6442
v.
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Defendants, -
CITY OF VILLA HILLS, KENTUCKY et al.,
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JOSEPH SCHUTZMAN, Individually, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 07-00122—David L. Bunning, District Judge.
Argued: January 20, 2011
Decided and Filed: March 24, 2011
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING,
P.L.L.C., Covington, Kentucky, for Appellant. Charles H. Schaffner, Covington,
Kentucky, for Appellee. ON BRIEF: Jeffrey C. Mando, ADAMS, STEPNER,
WOLTERMANN & DUSING, P.L.L.C., Covington, Kentucky, for Appellant. Charles
H. Schaffner, Covington, Kentucky, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Kenneth O. Kennedy was embroiled
in a zoning dispute about the expansion of a strip mall next to his home. In May 2005,
he approached Joseph Schutzman, a police officer and building inspector, in the Villa
1
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 2
Hills city building. Refusing to speak to Kennedy, Schutzman left the city building.
Kennedy told nearby city workers in the building that “that son of a bitch [Schutzman]
broke all of the zoning laws.” Schutzman ran back inside and twice asked Kennedy
what he had said. Kennedy then called Schutzman a “fat slob,” and Schutzman
responded by arresting Kennedy for disorderly conduct. After the criminal case was
resolved in his favor, Kennedy sued several defendants, including Schutzman, alleging
various claims, including wrongful and retaliatory arrest.
The district court granted summary judgment to all defendants except
Schutzman, who has appealed the district court’s denial of qualified immunity. Viewing
the facts favorably to Kennedy, we assume that his outburst was not unreasonably loud
and did not threaten to generate public alarm. Because a reasonable officer could not
have believed that he had probable cause to arrest Kennedy under the circumstances that
Kennedy has described, we AFFIRM the denial of qualified immunity on Kennedy’s
Fourth Amendment claim of wrongful arrest. Moreover, because a factfinder could
determine that the personal insults motivated Schutzman to arrest Kennedy, we also
AFFIRM the denial of qualified immunity on Kennedy’s First Amendment claim of
retaliatory arrest. Accordingly, we REMAND the case for further proceedings
consistent with this opinion.
I. BACKGROUND
Since 1989, Kennedy has lived at 2821 Amsterdam Road in Villa Hills,
Kentucky. Although he had assumed that the property was zoned for residential use, it
is apparently zoned instead for commercial use. Kennedy learned of the zoning problem
when an abutting strip mall announced its plan to expand. The strip mall obtained a
building permit from Joseph Schutzman, who is both a police officer and a building
inspector for the City of Villa Hills, Kentucky (“City”). In December 2004, Kennedy
briefly conversed with Schutzman by phone to express opposition to the project. Later,
Kennedy sued the strip mall’s owner, the company from which he purchased his home,
and the City in state court.
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 3
When bulldozers and construction workers arrived to begin construction on May
18, 2005, Kennedy went to the Villa Hills city building to confront Schutzman. When
Kennedy arrived at 7:00 a.m., he stood in the hallway outside Schutzman’s office and
told Schutzman to “[t]ake your pick, the building [permit] is void or obsolete.” R. 22
(Kennedy Dep. at 72). Kennedy’s voice “[p]robably” was raised. Id. at 73. Schutzman
responded that the pending lawsuit prevented him from discussing the issue with
Kennedy, and then Schutzman left the building and exited into a parking lot. Still upset,
Kennedy spoke with the three city workers who were standing in an adjacent area of the
building and who had “probably heard what [Kennedy had] said” to Schutzman. Id. at
74. Kennedy told them that “[t]hat son of a bitch broke all of the zoning laws.” Id. at
78. Kennedy “[p]robably” voiced the insult “rather loudly.” Id. at 79.
The building was small, and Schutzman presumably overheard Kennedy’s
comment because Schutzman “came running back in[side],” “got in [Kennedy’s] face,”
and asked Kennedy twice what he had said. Id. “You’re a fat slob,” Kennedy
responded, “probably” yelling. Id. at 78, 80. Schutzman arrested Kennedy for
disorderly conduct. The citation that Schutzman wrote mentions “verbal abuse in front
of public works employees” and describes Kennedy as “highly agitated,” but it does not
mention how loudly Kennedy spoke. R. 22-4 (Citation). It also observed that the
“building was not open for business.” Id.
Kennedy first brought suit for his arrest in Kenton Circuit Court on May 8, 2006.
The defendants removed the case to the United States District Court for the Eastern
District of Kentucky, which dismissed the civil suit because Kennedy’s criminal case
was unresolved. On June 18, 2007, the criminal case was dismissed, and Kennedy again
sued the City and Schutzman in his individual capacity in Kenton Circuit Court.
Kennedy alleged wrongful arrest under the Fourth Amendment, retaliatory arrest in
violation of the First Amendment,1 violations of the Eighth and Fourteenth
1
Although the complaint does not mention the First or Fourth Amendments, Kennedy’s
allegations fairly raise the claims of wrongful arrest under the Fourth Amendment and of retaliatory arrest
for Kennedy’s exercise of his First Amendment rights. The complaint alleges that the City, “through its
police officer, JOSEPH SCHUTZMAN, because of the Plaintiff’s filing suit and pursuing his legitimate
claims, retaliated against the Plaintiff by falsely swearing and having him arrested for a misdemeanor
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 4
Amendments, and several state-law torts: false arrest/imprisonment, intentional
infliction of severe emotional distress, malicious prosecution, defamation (libel and
slander), and abuse of process. The defendants once again removed the case to the
United States District Court for the Eastern District of Kentucky.
The district court granted summary judgment to the City because a municipality
is not liable for the actions of an employee if the employee had no “history of illegal or
retaliatory arrests” and the municipality had no reason to suspect that “allowing a police
officer to serve as a building inspector would lead to the violation of its citizens’
constitutional rights.” R. 28 (Dist. Ct. Op. at 7). Schutzman sought summary judgment
on the basis of qualified immunity, which the district court denied. With respect to the
claim of Fourth Amendment wrongful arrest, the district court reasoned that a jury
should resolve the factual dispute about the volume of Kennedy’s outburst. With respect
to the claim of First Amendment retaliation, the district court identified a question of fact
concerning Schutzman’s reason for arresting Kennedy. The arrest may have been
“motivated by the[] history” of conflict between the two men or “by the content – not
the volume – of the speech in question,” in which case the arrest was retaliatory and
unconstitutional. Id. at 13–16. The district court disposed of the remaining state-law
and federal constitutional claims on their merits.
Schutzman, the only remaining defendant, has appealed the denial of qualified
immunity. Pursuant to the collateral-order doctrine, the district court’s denial of
qualified immunity to Schutzman is a final order over which this court has appellate
jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “Interlocutory review is
permitted where a defendant argues merely that his alleged conduct did not violate
clearly established law. . . . This is a legal question and is independent from the question
charge for which he [JOSEPH SCHUTZMAN] had no credible evidence.” R. 1-2 (Compl. ¶ 12 (bracketed
text in original)). It also states that Schutzman, “in violation of [§ 1983] . . . , did conspire to harass and
intimidate the Plaintiff . . . , thereby depriving him of his constitutional rights, by the use of threats of
physical arrest, false imprisonment, force and retaliation.” Id. at ¶ 18. Finally, it asserts that Schutzman
sought “to punish and retaliate against the Plaintiff for his legitimate inquiries and complaints against the
[City] and JOSEPH SCHUTZMAN.” Id. at ¶ 20.
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 5
of whether there are triable issues of fact.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir.
2009).
II. ANALYSIS
We “review the denial of summary judgment on grounds of qualified immunity
de novo because application of this doctrine is a question of law. But to the extent that
there is disagreement about the facts, . . . we must review the evidence in the light most
favorable to the Plaintiff, taking all inferences in his favor.” Swiecicki v. Delgado, 463
F.3d 489, 497 (6th Cir. 2006) (internal citations, quotation marks, and alteration marks
removed; ellipses in original), abrogated on other grounds by Wallace v. Kato, 549 U.S.
384 (2007). Kennedy bears the burden “to show that [Schutzman] is not entitled to
qualified immunity.” Id. at 498.
“In civil damage actions arising out of government officials’ performance of
discretionary functions, the officials are generally entitled to qualified immunity from
suit ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Greene v.
Barber, 310 F.3d 889, 894 (6th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Pearson v. Callahan recently restated the test for determining whether an
official is entitled to qualified immunity. 555 U.S. 223, 129 S. Ct. 808 (2009). “First,
a court must decide whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right. Second, . . . the court must decide whether the right
at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.”
Id. at 815–16 (internal citations omitted). After Pearson, courts may “exercise their
sound discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.”
Id. at 818.
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 6
A. Fourth Amendment Claim of Wrongful Arrest2
For purposes of this appeal, Schutzman concedes that a genuine issue of material
fact exists about the amount of noise that Kennedy made, and therefore whether
Schutzman violated Kennedy’s constitutional right to be free from wrongful arrest. At
stake is the second question: whether Kennedy’s constitutional right to be free from
wrongful arrest in these circumstances was clearly established such that Schutzman
should have known of it. We conclude that Kennedy’s right was clearly established.
“[A]n arresting agent is entitled to qualified immunity if he or she could
reasonably (even if erroneously) have believed that the arrest was lawful, in light of
clearly established law and the information possessed at the time by the arresting agent.”
Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir.), cert. denied, 554 U.S. 903 (2008).
Thus, even if a factual dispute exists about the objective reasonableness of the officer’s
actions, a court should grant the officer qualified immunity if, viewing the facts
favorably to the plaintiff, an officer reasonably could have believed that the arrest was
lawful. For Kennedy to defeat qualified immunity, his right “must have been ‘clearly
established’ in a . . . particularized . . . sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). That courts adopt
different “verbal formulation[s] of the controlling standard” is irrelevant so long as the
conduct that they prohibit is “not distinguishable in a fair way from the facts presented
in the case at hand.” Saucier v. Katz, 533 U.S. 194, 202–03 (2001), receded from on
other grounds by Pearson, 129 S. Ct. 808. “[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning,” and it is not necessary that “the
very action in question ha[ve] previously been held unlawful.” Hope v. Pelzer, 536 U.S.
2
Kennedy’s response brief does not expressly challenge Schutzman’s request for qualified
immunity on the Fourth Amendment claim. “This court,” however, “cannot be forced to reverse the
district court due merely to the []appellees’ failure to respond to the []appellant’s arguments.” Leary v.
Daeschner, 228 F.3d 729, 741 n.7 (6th Cir. 2000). Thus, appellees do not waive claims by failing to
respond to appellants’ arguments on appeal. Id. (“[The cross-appellant] cites cases for the proposition that
appellants who do not raise an argument on appeal waive that argument, but he cites no such cases
suggesting the same is true for appellees. Indeed, this court can affirm the district court on any basis
supported by the record.”).
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 7
730, 740–41 (2002) (internal quotation marks omitted). “[N]otable factual distinctions”
between prior decisions and the facts of a case do not resurrect qualified immunity “so
long as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Id. at 740 (internal quotation marks omitted).
“[P]re-existing law” must, however, make “the unlawfulness . . . apparent.” Anderson,
483 U.S. at 640.
In the context of qualified immunity, preexisting, clearly established law refers
to “binding precedent from the Supreme Court, the Sixth Circuit, the district court itself,
or other circuits that is directly on point.” Holzemer v. City of Memphis, 621 F.3d 512,
527 (6th Cir. 2010) (internal quotation marks omitted); see Pearson, 129 S. Ct. at
822–23 (finding a doctrine clearly established because three federal courts of appeals
and two state supreme courts had unanimously accepted it, even though the circuit in
which the conduct occurred had not done so). At the same time, “‘[w]hether an officer
is authorized to make an arrest ordinarily depends, in the first instance, on state law.’”
Leonard v. Robinson, 477 F.3d 347, 354 (6th Cir. 2007) (quoting Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979)). Put differently, state law defines the offense for
which an officer may arrest a person, while federal law dictates whether probable cause
existed for an arrest. See, e.g., Devenpeck v. Alford, 543 U.S. 146, 151–53 (2004) (using
constitutional probable-cause standards when a plaintiff had been arrested for an alleged
violation of state law and sued under § 1983 for unlawful arrest).
Based on how the Kentucky statute defines disorderly conduct, we conclude that
an officer could not reasonably believe that he had probable cause to arrest Kennedy.
The statute provides that “[a] person is guilty of disorderly conduct . . . when[,] in a
public place and with intent to cause public inconvenience, annoyance, or alarm, or
wantonly creating a risk thereof, he,” among other options, “[m]akes unreasonable
noise.” Ky. Rev. Stat. § 525.060(1)(b). Commentary to the statute explains that
“‘[r]easonable’ in this context depends upon the time, place, nature[,] and purpose of the
noise.” It also clarifies that “public alarm”
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 8
is not intended to include conduct which disturbs the peace and quiet of
any “one” person. . . . [T]he statute requires public alarm as
distinguished from private alarm. For example, a person may not be
arrested for disorderly conduct as a result of activity which annoys only
the police. The statute is not intended to cover the situation in which a
private citizen engages in argument with the police so long as the
argument proceeds without offensively coarse language or conduct which
intentionally or wantonly creates a risk of public disturbance.3
Ky. Rev. Stat. § 525.060 cmt. (emphasis added).
Here, the district court found the volume of Kennedy’s speech indeterminate in
part because the lawyers for the defense pressed Kennedy about the volume of his
speech before Kennedy “equivocally agree[d] that his insults to Schutzman were spoken
loudly.” R. 28 (Dist. Ct. Op. at 11). Although we believe that the structure of the
deposition does not make Kennedy’s concession any less meaningful, the actual
admissions, viewed in Kennedy’s favor, were meager. He admitted that he “[p]robably”
said “[t]hat son of a bitch broke all of the zoning laws” “rather loudly,” and that he
“probably did” “yell” when calling Schutzman a “fat slob.” R. 22 (Kennedy Dep. at
78–80). Construing these probabilities in the light most favorable to Kennedy, we
conclude that a genuine issue of material fact remains about whether Kennedy yelled or
spoke loudly at all. Even if he did yell and speak rather loudly, the volume of his voice
might not have been unreasonable. Finally, as the commentary to § 525.060 makes
clear, Kentucky law does not criminalize arguments and noise that disturb only police
officers because such conduct does not risk public alarm. Accord Payne v. Pauley, 337
F.3d 767, 777 (7th Cir. 2003) (holding that, under Illinois law, “[p]olice officers must
be more thick skinned than the ordinary citizen and . . . must not conceive that every
threatening or insulting word, gesture, or motion amounts to disorderly conduct”
(internal quotation marks omitted)). Indeed, because the First Amendment requires that
police officers tolerate coarse criticism, the Constitution prohibits states from
criminalizing conduct that disturbs solely police officers. See, e.g., City of Houston v.
Hill, 482 U.S. 451, 461–63 (1987) (“[T]he First Amendment protects a significant
3
The latter part of this passage purports to describe subsection (a) of § 525.060(1). However, the
phrase that it is describing, “public alarm,” is located in a clause that applies to every subsection.
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 9
amount of verbal criticism and challenge directed at police officers. . . . The freedom of
individuals verbally to oppose or challenge police action without thereby risking arrest
is one of the principal characteristics by which we distinguish a free nation from a police
state.”); Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring)
(“[A] properly trained officer may reasonably be expected to exercise a higher degree
of restraint than the average citizen, and thus be less likely to respond belligerently to
fighting words.” (internal quotation marks omitted)); Arnett v. Myers, 281 F.3d 552, 560
(6th Cir. 2002) (“It is well-settled that the freedom to criticize public officials and
expose their wrongdoing is a fundamental First Amendment value . . . .”). Based on the
evidence currently before this court, only city employees heard Kennedy speak and the
city building was “not open for business” at the time, R. 22-4 (Citation), which
minimizes any risk of public alarm. Given the context of the arrest as Kennedy has
portrayed it, a reasonable officer could not conclude that Kennedy’s outburst provided
probable cause for his arrest.
Cases interpreting Kentucky Revised Statute § 525.060 do not alter this
conclusion. This court recently called the case law interpreting the statute “very sparse,”
Nails v. Riggs, 195 F. App’x 303, 311–12 (6th Cir. 2006) (unpublished opinion), and
only two Kentucky cases prior to the date of Kennedy’s arrest mentioned the
unreasonable-noise provision. Neither involved facts similar to Kennedy’s
circumstances. In Commonwealth v. Jones, “a mother, who was accompanied by four
infant children,” complained to a police officer that the defendant was “shouting
obscenities at the military components of [a] parade.” 880 S.W.2d 544, 544 (Ky. 1994).
The defendant then “called the officer a ‘Nazi pig motherfucker’” and was thereupon
arrested and charged with disorderly conduct in violation of § 525.060(1)(b) and (d). Id.
at 545. Following the defendant’s criminal conviction and appeal, the Kentucky
Supreme Court held that sufficient evidence supported the jury’s guilty verdict because
the officer had testified that the defendant’s “volume of speech [was] greater than a
normal speaking voice” and the defendant had admitted that she was “yelling.” Id. at
545–46. Application of the statute varies by context, and the court reasoned that
“[c]ontent, volume[,] and surrounding circumstances may be considered together when
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 10
making a determination of reasonableness.” Id. at 546; cf. Swiecicki, 463 F.3d at
499–500 (concluding that an officer lacked probable cause to arrest a fan at a baseball
stadium for violating a city ordinance because the venue “encourages fans to cheer and
make noise, meaning that loud or even rowdy behavior was commonplace at games”).
The risk of public alarm was greater in Jones than in this case because here only three
city employees—and no members of the public—were present in the city building. The
posture of the case also differs: perhaps Kennedy’s admissions could support a jury
verdict against him, but, in a qualified-immunity analysis at the summary-judgment
stage, we are constrained to view the facts favorably to Kennedy. Once we do so, there
is no basis on these facts on which an officer could conclude that he had probable cause
to arrest Kennedy.
Similarly, in Collins v. Commonwealth, No. 2002-CA-001991-MR, 2004 WL
315035, at *1 (Ky. Ct. App. Feb. 20, 2004) (unpublished opinion), the defendant was
convicted of disorderly conduct after he “yelled and cursed at his girlfriend to leave the
premises” of his trailer and defied officers’ repeated requests that he remain in his trailer.
The court of appeals affirmed because the defendant had used “offensively coarse
language” at 2:39 a.m. in a residential trailer park when “there was no reasonable
purpose for the noise.” Id. In contrast, here Kennedy’s outburst was not at night, and
it occurred at a city building rather than a residential trailer park. Kennedy used coarse
language, and, in light of the preexisting litigation and the instructions that prohibited
the city employees from speaking to Kennedy, see R. 22 (Kennedy Dep. at 64–65, 72,
75), the exchange was purposeless. Yet Kennedy did not pose the risk of public alarm
that Collins did. There were no third parties, such as Collins’s girlfriend, whom an arrest
would protect. There were also no third parties, such as the other trailer-park residents,
whom Kennedy disturbed. In sum, the cases interpreting the unreasonable-noise
provision do not show that Kennedy’s conduct—viewed in the light most favorable to
him—provided probable cause on which to believe that Kennedy had violated Kentucky
law.
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 11
Finally, the district court observed that “the jury could conclude that Kennedy
was arrested for insulting Schutzman as opposed to making ‘unreasonable noise.’” R.
28 (Dist. Ct. Op. at 13). Unless discriminatory motive forms part of the cause of action
itself, Poe v. Haydon, 853 F.2d 418, 430 (6th Cir. 1988), the question whether a
plaintiff’s right was clearly established is objective, rendering irrelevant the official’s
motives, Mitchell, 472 U.S. at 517 (“Harlow v. Fitzgerald, 457 U.S. 800 (1982), . . .
purged qualified immunity doctrine of its subjective components . . . .”). Regardless of
why Schutzman made the arrest, the relevant inquiry is whether an officer with no ill
will toward Kennedy could have believed that he had probable cause to arrest Kennedy.
We answer no, rendering qualified immunity inappropriate on the claim of wrongful
arrest. For these reasons, we therefore AFFIRM the district court’s denial of
Schutzman’s motion for summary judgment with respect to the Fourth Amendment
claim of wrongful arrest.
B. First Amendment Claim of Retaliatory Arrest
In contrast to its role in the Fourth Amendment context, motive is relevant to
Kennedy’s claim that Schutzman arrested Kennedy in retaliation for Kennedy’s exercise
of his First Amendment rights.
A retaliation claim essentially entails three elements: (1) the plaintiff
engaged in protected conduct; (2) an adverse action was taken against the
plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) there is a causal connection between
elements one and two—that is, the adverse action was motivated at least
in part by the plaintiff's protected conduct.4
4
The Sixth Circuit has not decided whether lack of probable cause is an element in wrongful-
arrest claims after the Supreme Court’s ruling in Hartman v. Moore, 547 U.S. 250 (2006), which made lack
of probable cause an element for claims of malicious prosecution. Leonard, 477 F.3d at 355. Hartman
was about inducement to prosecute, which involves causal chains that are “usually more complex than . . .
in other retaliation cases.” Id. at 261.
We applied Hartman to claims of retaliatory prosecution and wrongful arrest in Barnes v. Wright,
449 F.3d 709, 717–20 (6th Cir. 2006). In Barnes, Hartman’s “concerns regarding the intervening actions
of a prosecutor d[id] not apply” to the plaintiff’s retaliatory-prosecution claim because the arresting
officers initiated grand jury proceedings themselves. Id. at 720. Because Hartman said that retaliatory-
prosecution claims “usually”—not always—involve complex causal chains, however, the absence of
probable cause was still an element for the claim of retaliatory prosecution. The absence of probable cause
was also an element for the claim of wrongful arrest because that claim was factually interrelated to the
allegedly retaliatory prosecution in two ways. First, the arresting agents initiated grand jury proceedings
against the plaintiff. Second, they arrested the plaintiff only after the grand jury had indicted him. Thus,
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 12
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). “A ‘motivating
factor’ is essentially [a] but-for cause . . . .” Leonard, 477 F.3d at 355. For purposes of
asserting qualified immunity, Schutzman has waived any challenge to the first element
by omitting it from his opening brief.5 Thaddeus-X, 175 F.3d at 403 n.18. Schutzman
conceded the second element in the district court and has not contested it on appeal. The
only question remaining about whether Kennedy’s constitutional right was violated is
whether Kennedy’s speech motivated the arrest. To defeat Schutzman’s qualified-
immunity defense, Kennedy must also demonstrate that his right to be free from
retaliatory arrest in such a context was clearly established.
Because direct evidence of motive is difficult to produce, “claims involving proof
of a defendant’s intent seldom lend themselves to summary disposition” and
“circumstantial evidence may provide sufficient evidence of retaliatory intent to survive
summary judgment.” Holzemer, 621 F.3d at 525–26 (internal quotation marks and
alterations removed). “Once a plaintiff raises an inference that the defendant’s conduct
was motivated in part by plaintiff's protected activity, the burden shifts and [the]
defendant,’” to obtain summary judgment, must “demonstrate that [he] would have taken
the same action in the absence of the protected activity.” Ctr. For Bio-Ethical Reform,
Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (internal quotation marks
omitted).
Barnes governs the applicability of Hartman to claims of wrongful arrest only when prosecution and arrest
are concomitant.
Unlike the plaintiff in Barnes, Kennedy has raised an ordinary retaliation claim. Following the
commonplace pattern for allegedly retaliatory arrests, Schutzman arrested Kennedy prior to any
prosecutorial or grand jury involvement. The straightforward connection between Schutzman’s alleged
animus and the arrest that he effectuated suggests that Kennedy may not need to demonstrate a lack of
probable cause to succeed on his claim of wrongful arrest. See, e.g., CarePartners LLC v. Lashway, 545
F.3d 867, 877 n.7 (9th Cir. 2008) (limiting Hartman to retaliatory-prosecution actions in which the absence
of probable cause is “need[ed] to ‘bridge’ a causation gap”). We defer resolution of this question,
however, because it does not decide this appeal. If the absence of probable cause is not an element, then,
as explained below, Kennedy should prevail because he satisfies the three actual elements. If the absence
of probable cause is an element, then Kennedy still should prevail because the Fourth Amendment analysis
shows that Schutzman lacked probable cause for the arrest. See Leonard, 477 F.3d at 355 (declining to
decide whether probable cause is an element for the same reason).
5
In any event, Kennedy’s speech seems to be the type that the First Amendment protects. Even
crass language used to insult police officers does not fall within the “very limited” unprotected category
of “fighting words.” Greene, 310 F.3d at 892–93, 896 (holding that a § 1983 plaintiff did not use fighting
words when he told a police officer “you’re really being [an] asshole” and “if that’s how you feel you’re
really stupid” (alteration in original)).
No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 13
Schutzman admits that Kennedy was angry with him, but argues that the
evidence is silent about Schutzman’s own motives. If a plaintiff’s motives can create an
inference about the defendant’s motives, then, says Schutzman, plaintiffs could eliminate
the defense of qualified immunity simply by threatening a lawsuit before being arrested.
We need not address Schutzman’s argument because we disagree with Schutzman’s
interpretation of the record. Kennedy’s deposition reveals more than his own anger.
Schutzman “came running back in” to the building, “got in [Kennedy’s] face,” and
arrested Kennedy immediately after Kennedy called Schutzman a “fat slob.” R. 22
(Kennedy Dep. at 79, 81). At the summary-judgment stage, this evidence suffices to
show that the content of Kennedy’s speech may have been a motivating factor for
Schutzman to arrest Kennedy.
Finally, Kennedy’s right to be free from retaliatory arrest after insulting an
officer was clearly established. See Greene, 310 F.3d at 897 (“[The officer] should have
known that an arrest undertaken at least in part as retaliation for a constitutionally
protected insult to the officer’s dignity would be impermissible unless it could be shown
that the officer would have made the arrest even in the absence of any retaliatory
motive.”); Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (“[T]he First
Amendment right to criticize public officials is well-established . . . . Furthermore, it is
well-established that a public official’s retaliation against an individual exercising his
or her First Amendment rights is a violation of § 1983.”). Motivation may be difficult
to ascertain after the fact, but once the factfinder determines that protected speech
motivated the arrest, the illegality of the arrest becomes readily “apparent.” Anderson,
483 U.S. at 640.
III. CONCLUSION
We AFFIRM the district court’s denial of qualified immunity to Schutzman on
Kennedy’s Fourth Amendment claim for wrongful arrest and on his First Amendment
claim for retaliatory arrest. We REMAND for further proceedings.