NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0648n.06
No. 10-3520 FILED
Aug 31, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
VIVIAN SKOVGARD; PERCY GROS, JR., )
) ON APPEAL FROM THE
Plaintiffs-Appellants, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHO
)
JEFF PEDRO, P.O.; MIKE MANNIX, P.O.; CITY OF ) OPINION
KETTERING, )
)
Defendants-Appellees. )
__________________________________________ )
Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.*
HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants Vivian Skovgard (Skovgard)
and Percy Gros, Jr. (Gros) (collectively, plaintiffs) are long-time anti-abortion advocates, whose
activities outside of the Women’s Med + Center (the Center), an abortion clinic in Kettering, Ohio,
include counseling, praying, picketing, and distributing literature. On March 2, 2007, Alex
Kaminski (Kaminski), the Center’s security guard, called the police to report that plaintiffs were
trespassing on the Center’s property. Officers Jeff Pedro (Pedro) and Mike Mannix (Mannix)
responded to the call and ultimately arrested plaintiffs. Charges against the plaintiffs were later
dismissed when it was determined that they had been on the public right-of-way adjacent to the
Center. Plaintiffs then filed actions against the officers, Kaminski, the company that employed
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.
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No. 10-3520
Skovgard v. Pedro
Kaminski, and the City of Kettering (the City). Pedro, Mannix, and the City (collectively,
defendants) sought summary judgment on all of plaintiffs’ claims, which the district court granted.
Subsequently, plaintiffs voluntarily dismissed their claims against the remaining defendants and
appealed the district court’s summary judgment decision. We AFFIRM.
I.
A.
The district court provided a comprehensive and fair account of the factual background:
A. Background on the Center, Kaminski, Skovgard and Gros
The Center[2] is surrounded on three sides by roadways. To the south is
Stroop Road, which presently has a sidewalk, but has not always had such. To the
west is Vineyard Avenue, which has had a sidewalk at all times relevant to this
litigation. To the north is Wheatland Avenue (the location of the incidents in
question in this litigation), which does not have a sidewalk. In the grassy area along
Wheatland Avenue, there is a fire hydrant. Pedestrians sometimes walk on that
grassy area to avoid traffic on the street.
1st Choice [Security, Inc. (1st Choice)] provided security services for the
Center, and, assigned Alex Kaminski as a security guard to the Center, in January
2007. The Center (which is not a party in this litigation) never advised Kaminski of
the extent of its property or the existence of a public right-of-way along the northern
portion of the property that abuts Wheatland Avenue.
Plaintiff Vivian Skovgard has been praying, protesting and attempting to
counsel women outside of the Center four days a week for approximately six hours
a day, since 1989. In so doing, she sometimes walks along the grass on Wheatland
Avenue, staying within three to four feet of the roadway. Skovgard was arrested
numerous times, between 1989 and 1995, in various parts of the country (including
Alabama, Kansas and Texas) and convicted of criminal trespass in some instances,
as a result of blocking access to various abortion clinics. However, her only
confrontation with police at the. . .Center was in “two thousand something” when she
was either detained or arrested (and then [immediately] released) for trespassing
2
Plaintiffs also refer to the Center as the “Haskell Clinic.”
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when she walked on the Center’s driveway to hand literature to a person leaving the
facility in a car.
Plaintiff Percy Gros has been regularly protesting and praying at the Center
since 1987. In so doing, he walked in the grass along Stroop Road (before a sidewalk
was added) and has also walked in the grass along Wheatland Avenue “many, many
times[.]” When walking along Wheatland Avenue, Gros always stays within a
couple of feet of the roadway. During the twenty year period that he has been present
at the Center, the police have occasionally been to the Center while Gros was there,
but had never indicated to Gros that he was not allowed to walk on the grass along
Wheatland Avenue, prior to the incident on March 2, 2007. Gros was arrested twice
in 1987, once at the Center and once at another abortion clinic in Dayton, Ohio, and
convicted both times for disturbing the peace.
B. Incident at Center on March 2, 2007
On March 2, 2007, Skovgard arrived at the Center around 9:30 a.m. and spent
most of her time on the sidewalk along Vineyard Avenue, prior to Gros’s arrival.
When Gros arrived, he walked in the grassy area along Wheatland Avenue, staying
within three feet of the road.[3] Kaminski soon approached Gros with a threat to call
the police if Gros did not get off the grass. When Gros ignored him, Kaminski
leaned into Gros, making physical contact with him, and then accused Gros of
assaulting him. Gros reacted by continuing to walk as before, while Kaminski went
into the Center to call the police department to report that Gros and Skovgard were
trespassing and to retrieve a video camera. Skovgard then joined Gros, walking
along the grassy area on Wheatland Avenue.
Officers Pedro and Mannix arrived soon thereafter and initially spoke with
Kaminski. Kaminski advised the officers that he had asked Gros and Skovgard to
leave the Center’s property on the grassy area on the north side of the clinic, but they
had refused. Kaminski also informed them that the Center wanted Gros and
Skovgard off the grass and back onto the sidewalk to conduct their protests.
According to Pedro, at this time Gros was fifteen feet off of Wheatland Avenue,
while, at his deposition, Mannix testified that Gros and Skovgard were approximately
ten feet into the grassy area when he arrived. (This is in contradiction to the
testimony of Gros and Skovgard who stated that they always stay within three to four
3
Gros had made the decision to walk along Wheatland Avenue on this day because Skovgard
previously told Gros that Kaminski had told her that she was not allowed to walk on the grass and
Gros wanted to “basically make a statement to say [Skovgard] is not the only person that is
protesting here . . . . [b]y leaving his footprints [in the snow along Wheatland Avenue.]”
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Skovgard v. Pedro
feet (or a couple of feet) of the roadway.) The officers believed that the edge of the
roadway marked the Center’s property line.4 The officers several times told Gros and
Skovgard that they needed to get off the grass and encouraged them to continue their
protests on the sidewalk, but Gros and Skovgard continued walking in the grass. The
officers then stated that they would arrest Gros and Skovgard if they did not get off
the grass, at which time both Gros and Skovgard told the officers that they did not
have to get off the grass because it was public right-of-way. Gros also mentioned
that they had been protesting on that property for over twenty years and had never
been harassed by the police before. Nevertheless, the officers handcuffed and
arrested Gros and Skovgard for criminal trespass, transporting them to the police
station and detaining them in the City jail.
Ultimately, the charges were dismissed against Gros and Skovgard when it
was determined that they were protesting within the public right-of-way. The public
right-of-way on Wheatland Avenue extends 25 feet from the centerline of the road.
It is unclear how wide the road is or how many feet the right-of-way extends into the
grassy area along Wheatland Avenue.5 . . . .
C. Facts Pertaining to Municipal Liability
At his deposition, Lieutenant [James] Knickle [(Knickle)], of the Kettering
Police Department, testified that Pedro and Mannix acted in accordance with the
City’s policies, procedures and training, in the course of the arrests of Gros and
Skovgard, on March 2, 2007. Knickle is familiar with the history of the regular
presence of protestors at the Center, including a mass protest in the early 1990s,
where large groups blocked the door of the Center and the police made arrests for
criminal trespass. Prior to the incident involving Gros and Skovgard, in 2007,
however, the City did not provide any training to its officers regrading how to
4
“When asked why he assumed that the Center’s property line was at the edge of the street,
Pedro testified that ‘all of my prior understanding and training told me that basically property is
property. If . . . a person’s property is basically the established property line, that the edge of the
grass leading up to the sidewalk and everything inside that is their property.’”
5
“A hand-sketched drawing from the Kettering City Engineer indicates that the right-of-way
extends approximately 14.5 feet into the grassy area on either side of Wheatland Avenue. However,
Gros testifies that the City Engineer did not know how wide the street was, when he prepared the
sketch, so the numbers on the sketch would appear to be estimates. The Plaintiffs also point to
photographs contained in the record, which were taken in the course of a survey of the property, but
there is no indication in the photographs of how many feet the right-of-way extends into the grass.”
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No. 10-3520
Skovgard v. Pedro
identify or handle trespass issues at the Center. After acknowledging that protestors
were arrested for criminal trespass, during the mass protest at the Center in the early
1990s, Knickle was questioned about training with regard to trespass issues. A
pertinent part of his deposition reads:
Q Okay. So it’s fair to say that dating back say – at least say to
the 1990s which is when I know a lot of that activity happened,
criminal trespass was a charge that the – or situation that the police
and the Kettering courts had to deal with?
A Correct.
Q And do you recall any specific training that the [C]ity of
Kettering ever gave to the police officers dealing with trespassissues
at that clinic? For example, where are the property lines, where are
the protesters allowed to walk, where can’t they walk. Sometimes
there [are] sidewalks along some side of the clinic. Other side of the
clinic, there are no sidewalks. I’ve just thrown a lot at you but do you
recall any kind of training to address that location in particular with
the history of protest then?
A Prior to this incident in 2007, no.
Lieutenant Knickle testified that, although the City did not conduct any training
specific to trespass issues at the Center, it had conducted training specific to the
Center on the “logistics of how we were going to respond if we were required to
make mass arrests and – specifically, you know, what the logistics would be if we
brought in buses and the use of flex cuffs versus regular handcuffs and how we
would process personnel.”
Pedro confirms Knickle’s testimony in stating that, prior to the incident in
March 2007, he never received any training or instruction about how to handle
protestors at the Center, except on the occasion of the mass protest in the early 1990s
when the City instructed him on how to handle the unique aspects of that anticipated
event. He also received no training or instruction about the property lines or public
right-of-way around the Center. Likewise, Mannix had received no training
regarding public rights-of-way or property lines, or any training pertaining to
handling issues specific to the Center, with the exception of the instructions pertinent
to the earlier mass protest, as described by Pedro. As to other police training, both
officers had attended basic peace officer training, as well as in-service training
provided by the City.
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No. 10-3520
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With regard to the incident in March 2007, Lieutenant Knickle followed up
on the same by talking with Officer Pedro and visiting the site in question. He
concluded that the officers had acted in accordance with the City’s policies and
procedures when they made the arrests in question. Soon thereafter, the City
provided its police officers with an aerial photograph of the property surrounding the
Center. The City also provided its officers instruction concerning the Center’s
property boundaries and how they related to making arrests for criminal trespass.
B.
On March 3, 2008, plaintiffs filed suit against Pedro, Mannix, 1st Choice, and Kaminski,
alleging (1) warrantless, unreasonable, and unconstitutional seizure and detention, in violation of the
Fourth Amendment; (2) deprivation of the freedoms of speech and assembly and retaliation for the
exercise of speech, in violation of the First Amendment; (3) deprivation of liberty without due
process of law, in violation of the Fifth and Fourteenth Amendments; and (4) false arrest, false
imprisonment, and malicious prosecution in violation of Ohio law. Plaintiffs filed a separate suit
against the City, alleging inadequate training and/or failure to discipline the police officers, which
resulted in the alleged First, Fourth, Fifth, and Fourteenth Amendment violations. The district court
consolidated the cases.
Defendants filed a motion for summary judgment on all of plaintiffs’ claims. The district
court granted this motion, concluding that (1) Pedro and Mannix had probable cause to arrest
plaintiffs; (2) plaintiffs had waived their First Amendment retaliation claims; (3) plaintiffs’ First
Amendment rights were not violated because Pedro and Mannix had probable cause to arrest them;
(4) plaintiffs could not prevail on their Fourteenth Amendment due process claims because the
Fourth Amendment, and not the Fourteenth Amendment, establishes procedural protections with
respect to the criminal justice system; (5) it was unnecessary to determine whether defendants were
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No. 10-3520
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entitled to qualified immunity; (6) the City was not liable for a failure to train Pedro and Mannix
because plaintiffs could not show that a constitutional violation had occurred; (7) the City was not
liable for a failure to discipline or investigate because it did take steps to investigate the situation and
to train its officers regarding the right-of-way at the Center after the alleged incident; (8) there were
no facts presented to indicate that Pedro and Mannix deserved punishment given that they had “never
been trained on tresspass/boundary issues at the Center”; and (9) Pedro and Mannix were entitled
to immunity on plaintiffs’ state law claims because they did not act with a “malicious purpose, in
bad faith, or in a wanton or reckless manner.”
Plaintiffs then filed a motion asking the district court to dismiss with prejudice their federal
claims and dismiss without prejudice their state claims against defendants 1st Choice and Kaminski.
The district court granted the motion, thereby terminating plaintiffs’ case. Plaintiffs timely appealed
the district court’s summary judgment decision.
II.
A.
Plaintiffs claim that their “Fourth Amendment rights were violated when they were arrested
for criminal trespass on March 2, 2007 because [p]laintiffs were always in the public right of way,
neither” Pedro, Mannix, nor Kaminski “had any knowledge to the contrary or any knowledge about
the boundaries of the property,” and Pedro and Mannix “failed in their duty to investigate further
after [p]laintiffs informed them about [p]laintiffs[’] long history of protesting in that same area in
full view of everyone.” Defendants argue that plaintiffs’ Fourth Amendment rights were not violated
because Pedro and Mannix had probable cause to arrest plaintiffs for criminal trespass.
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No. 10-3520
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“We review the district court’s grant of summary judgment de novo.” Rodriguez v.
Passinault, 637 F.3d 675, 680 (6th Cir. 2011) (italics omitted). Summary judgment is appropriate
where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show
“that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
The Fourth Amendment guarantees “that government officials may not subject citizens to
searches or seizures without proper authorization,” and therefore “[a] person who has been the victim
of an unlawful arrest or wrongful seizure under the color of law has a claim based on [this
Amendment.]” Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009). “[A] warrantless arrest by a law
officer is reasonable under the Fourth Amendment where there is probable cause to believe that a
criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
“The validity of the arrest does not depend on whether the suspect actually committed a crime . . . .”
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). As a result, “in order for a wrongful arrest claim
to succeed under [42 U.S.C.] § 1983, a plaintiff must prove that the police lacked probable cause.”
Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002).
“Probable cause exists if the facts and circumstances known to the officer warrant a prudent
man in believing that the offense has been committed.” Logsdon v. Hains, 492 F.3d 334, 341 (6th
Cir. 2007) (quoting Henry v. United States, 361 U.S. 98, 102 (1959)) (internal quotations omitted).
The probable cause inquiry “‘depends upon the reasonable conclusion to be drawn from the facts
known to the arresting officer at the time of the arrest,’ where supported by ‘reasonably trustworthy
information.’” Id. (citation omitted). An officer who intends to execute a warrantless arrest is not
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No. 10-3520
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tasked with an “overly-burdensome duty to investigate.” Id. In initially determining probable cause,
an officer need not “investigate independently every claim of innocence.” Id. (citing 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.” Id. However, the officer’s initial probable cause
determination must be based on both “inculpatory and exculpatory evidence known to [him],” and
the officer “cannot simply turn a blind eye toward potentially exculpatory evidence.” Id. (citations
and internal quotations omitted).
Authorization for an arrest typically depends on state law. Id. Here, Pedro and Mannix
arrested plaintiffs for criminal trespass. 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.” Ohio Rev. Code § 2911.21(A)(1). The Ohio Code defines “privilege” as “an immunity, license,
or right conferred by law, bestowed by express or implied grant, arising out of status, position, office,
or relationship, or growing out of necessity.” Id. § 2901.01(A)(12). “Ohio courts construe the lack-
of-privilege requirement as an element of the offense of criminal trespass, and not an affirmative
defense.” Logsdon, 492 F.3d at 342; see also State v. Newell, 93 Ohio App.3d 609, 639 N.E.2d 513,
514 (1994).
B.
Pedro and Mannix would have had probable cause to arrest plaintiffs if, on the basis of the
facts known to them, they could have reasonably concluded that plaintiffs knowingly entered or
remained on the Center’s property without privilege. It is undisputed that plaintiffs were protesting
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No. 10-3520
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in a grassy area that reasonably appeared to be part of the Center’s property, and that did not have
a sidewalk indicating a public right-of-way. Pedro arrived on the scene in response to a report that
two persons were refusing to leave the Center’s property. He spoke to Kaminski outside the Center,
and Kaminski stated that “he and the owner or representative of the building wanted [the two
individuals on the grass] to be removed from the grassy area . . .[, but that they could continue their
protest on] the sidewalk.” Kaminski also told Pedro that he had asked plaintiffs to leave the grassy
area, and that they refused to do so. Pedro testified that when Kaminski said that he and the owner
wanted plaintiffs removed from the property, he motioned toward the Center and Pedro saw a female
staff member (the Center’s director is female) standing inside the doorway.6 Pedro also “vaguely
remember[ed] [Kaminski saying that he and Gros] had bumped into each other, or in the course of
[Kaminski] advising [Gros] to leave, that they had made very slight physical contact.” He did not
give serious attention to Kaminski’s complaint, however.
Pedro further testified that at the time, “he made a reasonable assumption that the [Center’s]
property lines were the edge of the grass on the north end of the property, and then the sidewalk
along the east side of the street and [the] sidewalk along the south side of the street.” This
assumption was based on “[his] prior understanding and training that . . . . [i]f an individual or a
person’s property is basically the established property line, that the edge of the grass leading up to
6
Melissa Goode (Goode), the Center’s director, testified that she observed Pedro speaking
with plaintiffs, but did not approach Pedro because she had not seen what had transpired. Goode
also stated that Kaminski came into her office and told her that he had called the police because he
had walked out to ask Gros to move away from the grass and Gros “shoved him or pushed him out
of his way.” Kaminski did not ask for Goode’s permission to call the police, but Goode did not
reprimand him for doing so, and she did not subsequently speak to the officers about the matter.
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No. 10-3520
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the sidewalk and everything inside that is their property.” Pedro testified that during his police
training on the issue of criminal trespass, he was taught that a business property would generally be
surrounded by a parking lot, which would come “out to the edge of typically a grassy area leading
up to a public sidewalk, and that would extend the boundaries of the property.”
After talking with Kaminski, Pedro went to speak to Gros, who was walking back and forth
in the grassy area while holding a cross. According to Pedro, Gros was approximately fifteen feet
from the edge of the grass. Skovgard was also walking in the grassy area close to Gros. Pedro asked
plaintiffs to move to the sidewalk, and Gros refused to do so. Pedro asked plaintiffs to move three
more times, and Gros refused each time.7 Although Pedro directed his comments at plaintiffs, “Gros
did all the talking.” Pedro recalled Gros saying that they had a right to walk on the easement and that
they had been protesting at the Center for a long time while Skovgard “was in the background
supporting what []Gros had to say.” After Pedro’s third request that they move to the sidewalk, Gros
asked to see a judge. Plaintiffs also refused to provide their identification cards to Pedro. Pedro
ultimately informed plaintiffs that if they did not want to move to the sidewalk, Pedro would have
to arrest them because the property owner wanted them removed from the property. He then
proceeded to arrest Gros. Prior to leaving the scene, Pedro put Gros’s cross in the front seat of
Gros’s vehicle and assisted Gros in securing his vehicle, which was parked outside the Center.
7
Skovgard testified that she did not hear either officer say that she had the option to move to
the sidewalk, but acknowledged that she may have been distracted because she was “calling her
husband and talking to him” during her interaction with the officers. Gros admitted that Pedro told
him at least once that he could “picket in the street” and stated that Pedro just wanted Gros and
Skovgard to “get off the grass.”
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No. 10-3520
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Mannix arrived toward the end of Pedro’s conversation with plaintiffs. He observed
plaintiffs standing on the grass, approximately ten feet from the roadway. Mannix heard Kaminski
say that he wanted Skovgard arrested because she had previously been trespassing on the property.
While Pedro arrested Gros, Mannix asked Skovgard “if she was going to . . . get off the property and
on the sidewalk.” Skovgard responded that “she didn’t have to, she was allowed to be where she
was.” Mannix testified that his understanding regarding the Center’s property lines was consistent
with Pedro’s, as he believed that the Center’s property encompassed the grassy area along Wheatland
Avenue and stopped at the roadway. Because both officers believed that Skovgard was trespassing,
Pedro made the decision to arrest her, and Mannix effected the arrest. Mannix then placed Skovgard
in the police car and secured Skovgard’s car. He also retrieved Skovgard’s purse from her car for
her. Shortly after the arrest, Kaminski met Pedro and Mannix at the police station upon their request
and signed the criminal complaints against plaintiffs.
Thus, the dispute focuses on whether Pedro and Mannix were required to determine where
the public right of way ended before effecting the arrests. Because the law does not clearly require
such a determination, Pedro and Mannix are entitled to qualified immunity.
C.
In determining the applicability of qualified immunity, we inquire whether: (1) “[t]aken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right[;]” and (2) was the right “‘clearly established’ to the extent
that a reasonable person in the officer’s position would know that the conduct complained of was
unlawful.” Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011) (citation omitted). “For a right to be
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No. 10-3520
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clearly established, the contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Leonard v. Robinson, 477 F.3d 347, 355
(6th Cir. 2007) (citation and internal quotation marks omitted). “A right is clearly established if
there is binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other
circuits that is directly on point.” Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002) (citation
omitted). “This is not to say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to say that in light of pre-existing law
the unlawfulness must be apparent.” Wilson v. Layne, 526 U.S. 603, 615 (1999) (citations omitted).
Public officials could “still be on notice that their conduct violates established law even in novel
factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Courts may use their discretion
to determine which prong of the test to address first. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
The Supreme Court has never addressed whether in criminal trespass cases, officers, as part
of the probable cause inquiry, must conduct an additional investigation where the alleged trespassers
claim they are on a public right-of-way. The Fifth and Seventh Circuits, however, have explicitly
concluded that officers have no duty to investigate the boundaries of a public right-of-way prior to
making an arrest for criminal trespass when they receive reasonably trustworthy information that
certain persons are trespassing on private property and actually see these persons on the property in
question. See Bodzin v. City of Dallas, 768 F.2d 722, 724-25 (5th Cir. 1985); Kelley v. Myler, 149
F.3d 641, 646-47 (7th Cir. 1998). Although we have not yet decided a case that is factually similar
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No. 10-3520
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to Bodzin, Kelley, or the instant case, we have relied on Kelley for the proposition that “a duty to
investigate is no part of the probable cause determination.” Gardenhire, 205 F.3d at 322-23.
Pedro and Mannix arrested plaintiffs for criminal trespass on the basis of their training,
observations, and the information provided by Kaminski. Unlike in Logsdon, they had personally
observed the alleged trespassers in the area believed to be private property. Because a reasonable
person in the officers’ position would not have thought that he was acting unlawfully by failing to
further investigate the boundaries of the public right-of-way before arresting plaintiffs, Pedro and
Mannix are entitled to qualified immunity on plaintiffs’ Fourth Amendment claims.
III.
Plaintiffs also argue that their First Amendment rights of freedom of speech and assembly
were violated “when they were removed from the public right of way while peacefully protesting
there.” Defendants contend that no First Amendment violations occurred because Pedro and Mannix
had probable cause to arrest plaintiffs for criminal trespass.
“Because of the importance of uninhibited, robust, and wide-open debate on public issues,”
the Supreme Court has “traditionally subjected restrictions on public issue picketing to careful
scrutiny.” Frisby v. Schultz, 487 U.S. 474, 479 (1988) (citation and internal quotations omitted).
“‘[T]ime out of mind’ public streets and sidewalks have been used for public assembly and debate,
the hallmarks of a traditional public forum.” Id. at 480 (citation omitted) (alteration in original). In
these fora, “[t]he State may . . . enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a significant government interest, and leave
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open ample alternative channels of communication.” Pouillon v. City of Owosso, 206 F.3d 711, 715
(6th Cir. 2000) (citation and internal quotations omitted).
In Logsdon, the only case that is potentially on point, the plaintiff “engaged in anti-abortion
protest and counseling from the public sidewalk and public park adjoining [a clinic’s] property, both
quintessentially public fora,” and alleged that officers removed him “from the public fora, thereby
causing him to cease his protest and counseling, ostensibly for violating Ohio’s criminal trespass
law.” 492 F.3d at 345-46. The plaintiff also claimed that the officers demonstrated “a blatant bias
against [the plaintiff] and in favor of doing whatever [the clinic] wanted.” Id. at 346. Because we
had already determined that the officers lacked probable cause to arrest the plaintiff, and because we
liberally construed the plaintiff’s complaint, we concluded that the plaintiff had “stated a claim that
[the officers] violated his First Amendment rights by restricting his speech on the basis of content.”
Id. We did not express any opinion as to whether the plaintiff would “ultimately succeed on his
claim following discovery.” Id.
Logsdon does not control here. The officers in Logsdon attempted to destroy the plaintiff’s
sign and arrested him immediately upon arriving on the scene. The court construed the plaintiff’s
complaint as alleging that the defendant officers were “motivated by the content of his speech” and
“not by any purported criminal trespass.” Id. Here, Pedro and Mannix encouraged plaintiffs to
continue their protest on the sidewalks bordering the Center, steering plaintiffs away from a location
the officers thought was private property to the public right-of-way, and assisted plaintiffs with
locking up their signs after arresting them. Because there is no evidence that Pedro and Mannix were
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motivated by their desire to deter plaintiffs’ speech rather than their belief that plaintiffs were
trespassing, plaintiffs’ First Amendment claims fail.
C.
Finally, plaintiffs argue that “reasonable minds could conclude that the policies, practices[,]
and police training (or lack thereof) by the City of Kettering were the ‘moving force’ behind” the
alleged constitutional violations committed by Pedro and Mannix. They claim that “the City
conceded that it had never trained its police force on issue[s] of criminal trespass and First
Amendment [r]ights,” and that, through its Rule 30(b)(6) witness, “the City openly ratified and
approved of the conduct of . . . Pedro and Mannix . . . .”
The seminal case on municipal liability under § 1983 is Monell v. Department of Social
Services, 436 U.S. 658 (1978), where the Supreme Court held that municipalities can be sued
directly under § 1983 if the action of the municipality itself can be said to have caused the harm,
such as where “the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.” Id. at 690. Municipal liability for the actions of employees may not be based on a theory
of respondeat superior, but it can be predicated upon grounds other than explicit expressions of
official policy. Id. at 690-91, 694.
Subsequently, in City of Canton v. Harris, 489 U.S. 378 (1989), the Court held that “[o]nly
where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city
‘policy or custom’ that is actionable under § 1983.” Id. at 389. “To establish deliberate indifference,
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No. 10-3520
Skovgard v. Pedro
the plaintiff ‘must show prior instances of unconstitutional conduct demonstrating that the
[municipality] ha[d] ignored a history of abuse and was clearly on notice that the training in this
particular area was deficient and likely to cause injury.’” Miller v. Sanilac Cnty., 606 F.3d 240, 255
(6th Cir. 2010) (citing Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). A failure to investigate
or the ratification of illegal acts can constitute evidence of an official “policy of deliberate
indifference.” Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989); see also Marchese
v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985).
The evidence here does not in any way support a finding of deliberate indifference. Thus,
the City is not liable to plaintiffs under theories of failure to train or failure to discipline or
investigate.
III.
For the abovementioned reasons, we AFFIRM the district court’s grant of summary
judgment to defendants.
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