NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0490n.06
Case Nos. 15-1993/2015
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETER GALINIS, ) FILED
) Aug 22, 2016
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. )
)
COUNTY OF BRANCH, et al., )
)
Defendants, )
)
CITY OF COLDWATER, MI; ) ON APPEAL FROM THE UNITED
COLDWATER POLICE DEPARTMENT; ) STATES DISTRICT COURT FOR
BRIAN WOHLHETER; DAVID PIPE; NICK ) THE WESTERN DISTRICT OF
THORNTON, City of Coldwater Police ) MICHIGAN
Officers both individually and as members of )
the City of Coldwater Police Department (15- )
1993) and C. JOHN POLLACK, Branch )
County Sheriff, both individually and as a )
member of the Branch County Sheriff’s )
Department (15-2015), )
)
Defendants-Appellants. )
BEFORE: GUY, BOGGS, and MOORE, Circuit Judges.
BOGGS, Circuit Judge. Peter Galinis was arrested and removed from the Branch
County Courthouse after he refused to stop recording on his cell phone his interactions with a
clerk and police officers. At the time of the arrest, no law prohibited Galinis from recording in
Case Nos. 15-1993/2015, Galinis v. County of Branch, et al.
the courthouse. Galinis sued the officers who arrested him—John Pollack from the Branch
County Sheriff’s Office, and Brian Wohlheter, David Pipe, and Nick Thornton from the City of
Coldwater Police Department—for various federal and state claims. At summary judgment, the
district court denied qualified immunity to the officers on Galinis’s federal claims for unlawful
arrest and unlawful imprisonment, and his Michigan claims for false arrest, false imprisonment,
and battery. We affirm.
I
On August 1, 2011, Peter Galinis visited the clerk’s office at the Branch County
Courthouse to return a DVD of a 2009 trial that he had purchased from the office earlier that day.
He was distressed because the DVD was not functional and he was of the opinion that the DVD
had deliberately been made defectively. After recording his interaction with the clerk on his cell
phone, police officers told him to stop recording and to leave the courthouse. When Galinis
refused to leave, the officers arrested him and removed him from the building.
Three video clips from Galinis’s cell phone recording are publicly available on YouTube,
and although they contain low-quality video, they do have some audio. Those videos can
be found at: Branch County 1 of 3 Cop Caught Breaking the Law, YouTube (Aug. 21,
2011), https://www.youtube.com/watch?v=PWb9g8S_CmI; Branch County 2 of 3 Cop
Caught Breaking the Law, YouTube (Aug. 21, 2011),
https://www.youtube.com/watch?v=vJynaZJcoUQ; Branch County 3 of 3 Cop Caught Breaking
the Law, YouTube (Aug. 21, 2011), https://www.youtube.com/
watch?v=cLHQSCkQXXY. The events of that afternoon were also recorded by the video
surveillance system at the courthouse, but those recordings do not have sound.
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According to the surveillance video, Galinis arrived at the clerk’s window at around 4:15
PM. After ringing the call bell, Galinis took out his cell phone and began to record. The first
YouTube video shows that after clerk Julie Morrison arrived, Galinis told her about his inability
to play the DVD and demanded either a refund or a new disc. Morrison did not wish to be
recorded, and the second YouTube video shows that Morrison said: “When you get rid of your
recording devices we will discuss this.” Galinis responded by telling Morrison that he would put
his phone in his pocket, and he did so, although it was still recording. Shortly thereafter, Branch
County sheriff’s deputy Carl Sevidal arrived and asked: “What’s going on?” Galinis responded:
“The disc she gave me was deliberately defective, okay. Maybe it’s just my opinion, but it’s
highly coincidental. And I need a refund immediately of my funds here of $25 in extortion fees
or a new disc right now that will play in any standard DVD player.” After listening to Galinis’s
complaints, Sevidal asked him: “Well, are you going to give up your recording devices?” The
second YouTube video ends at that point.
The surveillance video shows that Sevidal then left the hallway, and Galinis pressed the
call button at the clerk’s window again. A few minutes later, Sevidal returned and continued
talking to Galinis. During that conversation, Galinis pressed the call button again. Sevidal then
left and returned with two Coldwater police officers. A minute later, another Coldwater police
officer arrived. The three Coldwater officers who arrived were defendants Brian Wohlheter,
David Pipe, and Nick Thornton. According to Galinis’s deposition testimony, one of the officers
said: “[Branch County Circuit Court] Judge [P. William] O’Grady says ask him to leave or
arrest him.” In addition, Sevidal informed Michigan Magistrate Judge David Coyle that Galinis
had refused to leave and cease recording. Judge Coyle stated in an affidavit that he “advised
Deputy Sevidal that if Mr. Galinis was being disorderly that in my opinion he could be arrested.”
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Judge Coyle also stated his “opinion that Mr. Galinis should not be permitted to record Mrs.
Morrison or other court employees against their wishes.” At around 4:29 PM, a fifth officer,
John Pollack, then a Branch County sheriff’s deputy, arrived in the hallway. After talking to
Galinis for a few seconds, Pollack moved behind Galinis and tried to push him away from the
clerk’s office window. Galinis stiffened his legs and did not allow himself to be moved. The
other four officers surrounded Galinis, pushed him to the other side of the hallway against a
doorframe, and placed him in handcuffs. The physical altercation was over quickly and does not
appear to have been violent, but Galinis alleges that his impact against the doorframe broke his
glasses, loosened his tooth, injured his wrist, and caused a sciatica flare-up in his back. Galinis
was escorted out of the hallway by the five officers, and three officers accompanied him out of
the building.
Galinis was charged with “resisting and obstructing,” in violation of Michigan law, Mich.
Comp. Laws § 750.81d(1), and “disorderly jostling,” in violation of a local ordinance, according
to the summary-judgment opinion by the district court in this case. At a preliminary examination
before Michigan District Judge Samuel Durham on November 8, 2011, Pollack testified that
Galinis was disorderly only because he refused to leave the courthouse when asked to do so, and
that Galinis did not swear, yell, scream, kick, throw a tantrum, or batter or wound the officers in
any way. Judge Durham found that there was probable cause and bound the case over for trial at
the circuit court, but the circuit court remanded the case to him in light of the Supreme Court of
Michigan’s decision in People v. Moreno, 814 N.W.2d 624 (Mich. 2012). On June 18, 2012,
Judge Durham conducted a second hearing and dismissed all charges against Galinis on the
ground that Galinis had a right to refuse to leave the courthouse because there were no rules
against the use of cell phones.
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Galinis brought various federal and state claims against Wohlheter, Pipe, Thornton, the
City of Coldwater, Pollack, and Branch County. The federal district court granted summary
judgment to the defendants on several of the claims, but denied qualified immunity on Galinis’s
claims for: (1) unlawful arrest in violation of the United States Constitution; (2) unlawful
confinement in violation of the United States Constitution; (3) false arrest under Michigan law;
(4) false imprisonment under Michigan law; and (5) battery under Michigan law.
Officer Pollack and the Coldwater police officers appealed, challenging the district
court’s denial of summary judgment. We review the district court’s summary-judgment rulings
de novo. See Gradisher v. City of Akron, 794 F.3d 574, 582 (6th Cir. 2015). Taking the facts “in
the light depicted by the videotape,” all reasonable inferences must be drawn in favor of the
nonmoving party. Scott v. Harris, 550 U.S. 372, 380–81 (2007). The defendants are entitled to
summary judgment only if no rational trier of fact could find for the plaintiff. Id. at 380.
II
Whether a defendant receives qualified immunity in a § 1983 action turns on two
questions: did the defendant violate a constitutionally protected right, and if so, was the right
clearly established at the time the act was committed? See Pearson v. Callahan, 555 U.S. 223,
232, 236 (2009). These questions may be addressed in any order that will facilitate a fair and
efficient disposition of the case. Id. at 242.
Galinis’s Fourth Amendment claims for wrongful arrest and wrongful imprisonment turn
on whether the defendants had probable cause to arrest him. See Fridley v. Horrighs, 291 F.3d
867, 872 (6th Cir. 2002); see also Wallace v. Kato, 549 U.S. 384, 388 (2007) (“False arrest and
false imprisonment overlap; the former is a species of the latter.”). Probable cause exists when
there is “reasonably trustworthy information” that is “sufficient to warrant a prudent man” in
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believing that the person being arrested had committed or was committing an offense.
Gardenhire v. Schubert, 205 F.3d 303, 317 (6th Cir. 2000) (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964)). In this case, the district court denied the defendants’ motions for summary judgment
because at the time of Galinis’s arrest and imprisonment, it was not illegal to film in the
courthouse and Galinis therefore had a right to remain. Although the defendants argued that they
were entitled to qualified immunity, the court held that they were not entitled to qualified
immunity because they lacked probable cause to arrest and imprison Galinis.
The Coldwater defendants and Pollack raise different arguments for reversing the district
court’s summary-judgment ruling. The Coldwater defendants argue that there was probable
cause to arrest Galinis under Michigan Compiled Laws § 750.81d(1). That issue was raised
before the district court and is therefore a proper issue for appeal. By contrast, Pollack’s
arguments, based on provisions of Coldwater’s city ordinances and judicial immunity, were not
raised before the district court. As such, they are forfeited.
It is an elementary rule of appellate practice that “appellate courts do not consider any
issues not passed upon below.” In re Morris, 260 F.3d 654, 663 (6th Cir. 2001). Deviations
from this rule are made only in “exceptional cases or particular circumstances, or when the rule
would produce a plain miscarriage of justice.” Id. at 664 (quoting Pinney Dock & Transp. Co. v.
Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988)). And we will consider an issue raised
for the first time on appeal only “to the extent the issue is presented with sufficient clarity and
completeness.” Ibid. (quoting Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1370–71 (6th
Cir. 1977)).
At the district court, the defendants focused their qualified-immunity argument on
whether the officers had probable cause to arrest Galinis under § 750.81d(1). Pollack focused on
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the argument that a state district judge’s determination on probable cause at a preliminary
examination in the criminal case against Galinis (which was later rejected by a state circuit judge
in response to a decision from the Michigan Supreme Court) was controlling due to collateral
estoppel. Having failed to persuade the federal district judge in this case to apply collateral
estoppel so as to give preclusive effect to the state court’s initial finding of probable cause and
having failed to pursue collateral estoppel on appeal, Pollack now raises a completely new set of
arguments based on provisions of Coldwater’s city ordinances that were never presented to the
district court and based on judicial immunity stemming from an informal remark made by a state
magistrate judge. Because Pollack failed to raise these arguments before the district court, and
this is not an exceptional circumstance, we decline to give him a second bite at the apple, and we
hold that his novel arguments concerning qualified immunity are forfeited.
This leaves us with the question of whether the defendants had probable cause to arrest
Galinis under § 750.81d(1). That statute provides that “an individual who assaults, batters,
wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has
reason to know is performing his or her duties is guilty of a felony punishable by imprisonment
for not more than 2 years or a fine not more than $2,000.00, or both.” The statute defines
“person” as including a variety of law-enforcement and public-safety officers, including police
officers, conservation officers, and firefighters. § 750.81d(7)(b). “Obstruct” is defined as “the
use or threatened use of physical interference or force or a knowing failure to comply with a
lawful command,” § 750.81d(7)(a) (emphasis added), but the statute does not define any of the
other verbs in the list such as “resist” or “oppose.”
The Coldwater defendants argue that the officers had probable cause—or at least, could
reasonably have believed that there was probable cause—to arrest Galinis for violating
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§ 750.81d(1) based on Michigan v. Ventura, 686 N.W.2d 748 (Mich. Ct. App. 2004), overruled
by Michigan v. Moreno, 814 N.W.2d 624 (Mich. 2012). In Ventura, the Court of Appeals of
Michigan held that a person can be found guilty under § 750.81d(1) if he uses “force to resist an
arrest made by one he knows or has reason to know is performing his duties regardless of
whether the arrest is illegal.” Id. at 751. Although Ventura was overruled in 2012, it was good
law in 2011 when the defendants arrested Galinis. According to the Coldwater defendants, even
though Galinis did not break the law when he was recording with his cell phone in the
courthouse, he violated § 750.81d(1) because he disobeyed the officers’ unlawful orders to stop
recording or leave the courthouse.
The Coldwater defendants give Ventura too broad a reading. Ventura held only that the
use of force to resist an unlawful arrest can result in a violation of § 750.81d(1), based on the
need to “reduce the likelihood and magnitude of the potential dangers inherent in an arrest
situation, thereby dually protecting both the general public and its police officers.” Id. at 752. In
this case, the security-camera footage shows that Galinis did not use force against the officers.
Pollack testified at the preliminary examination that Galinis was arrested only for refusing to
leave, and not for swearing, yelling, kicking, throwing a tantrum, or battering the officers.
Although Galinis refused to cooperate with the officers’ orders, his conduct amounted to little
more than passive noncompliance. Even if Galinis’s actions did amount to force, Ventura
would still be unhelpful for the defendants because it contemplates a situation in which “the
arrest is illegal.” Id. at 752. If this were a scenario in which Ventura applied, the sequence of
events would be: (1) the officers illegally arrested Galinis; (2) Galinis responded with force; and
(3) the officers legally arrested Galinis under Ventura for using force against an officer. Even
though the second arrest would be legal under Ventura, the first arrest would still be illegal,
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meaning that Galinis would be entitled under § 1983 to go to trial against the defendants on the
first arrest unless its illegality was not clearly established. Given that the defendants do not
dispute that Galinis was acting lawfully when he recorded with his cell phone in the courthouse,
we are not persuaded that the district court erred when it held that there was sufficient evidence
for Galinis to show that the officers arrested him without probable cause in violation of clearly
established law.
It is true that § 750.81d(1) makes it a crime to “resist,” “obstruct,” or “oppose” an officer
who is performing his duties. Although “obstruct” is defined in the statute as “the use or
threatened use of physical interference or force or a knowing failure to comply with a lawful
command,” § 750.81d(7)(a), making it inapplicable to Galinis’s conduct, the words “resist” and
“oppose” are not defined in the statute. It is at least debatable whether those words encompass
knowing failure to comply with an unlawful command, because that interpretation would render
part of the definition of “obstruct” superfluous. Under that interpretation, the legislature would
have needlessly defined “obstruct” as encompassing only a failure to comply with a “lawful
command,” because other provisions of the statute would encompass a failure to comply with an
unlawful command. Furthermore, the argument that an officer can “manufacture grounds to
arrest a person innocent of wrongdoing” simply by giving an illegal directive and then making an
arrest for violating that order is a “disturbing proposition” that is of “questionable constitutional
validity.” Bourgeois v. Strawn, 452 F. Supp. 2d 696, 710 (E.D. Mich. 2006). Regardless, the
defendants have not raised such an argument in this appeal, and we therefore decline to consider
it.
The Coldwater defendants also raise several additional points. First, they argue that a
statement made by Branch County Magistrate Judge David Coyle is relevant to the issue of
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qualified immunity, independent from their forfeited (and tenuous) argument based on judicial
immunity. According to Pollack’s testimony at the preliminary examination, Judge Coyle stated,
“As far as I’m concerned, he can leave the building.” That statement appears to be an informal
expression of personal preference rather than a formal legal conclusion about probable cause.
There is also no indication whatsoever that Judge Coyle would have had any jurisdiction over the
dispute. Judge Coyle also stated in his affidavit that he told Deputy Sevidal that “if Mr. Galinis
was being disorderly . . . in my opinion he could be arrested,” which amounts to little more than
saying that if there are grounds for arresting Galinis, Galinis can be arrested. Judge Coyle’s
remarks are not sufficient to render clearly established law unclear.
Second, the Coldwater defendants argue in their reply brief that the arrest was lawful
under Michigan’s eavesdropping statute, Michigan Compiled Laws § 750.539c. That argument
was forfeited not only because it was never raised before the district court, but also because it did
not appear in Coldwater’s initial appellant’s brief. “The general rule is that appellants cannot
raise a new issue for the first time in their reply briefs.” Bendix Autolite Corp. v. Midwesco
Enters., Inc., 820 F.2d 186 (6th Cir. 1987). This is not an exceptional case warranting a
deviation from that rule. Having reviewed the record, we conclude that a reasonable jury could
find that the defendants violated clearly established law by arresting Galinis. We therefore
affirm the district court’s denial of qualified immunity.
III
The defendants also appeal from the district court’s denial of summary judgment on
Galinis’s state claims. Here too, the defendants raise a number of arguments that were never
raised before the district court. The Coldwater defendants argue that the officers’ use of force
was not severe enough to amount to battery. That argument is forfeited because it was not raised
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before the district court. The defendants also argue that Galinis’s battery claims are barred by
the statute of limitations. Again, that argument is forfeited because it was not raised before the
district court. See Hayden v. Ford Motor Co., 497 F.2d 1292, 1294 (6th Cir. 1974) (applying
state law to determine whether a statute of limitations argument was forfeited); Att’y Gen. ex rel
Dep’t of Envtl. Quality v. Bulk Petroleum Corp., 741 N.W.2d 857, 864 (Mich. Ct. App. 2007)
(“Affirmative defenses, such as a statute of limitations defense, must be raised in a party’s first
responsive pleading or by motion filed not later than the first responsive pleading.”). Pollack
argues that he is entitled to qualified immunity, and to the extent that he relies on the federal
doctrine of qualified immunity rather than Michigan’s doctrine of governmental immunity, that
argument is forfeited as well because it was not raised before the district court, although it is also
meritless, as the federal qualified-immunity doctrine deals only with alleged violations of federal
law.
That leaves us with one final issue concerning Galinis’s state claims: whether the
defendants are entitled to governmental immunity under Michigan Compiled Laws
§ 691.1407(3). Governmental immunity “is an affirmative defense that must be proven by the
governmental actor.” Kreipke v. Wayne State Univ., 807 F.3d 768, 784 (6th Cir. 2015) (citing
Odom v. Wayne County, 760 N.W.2d 217, 228). A defendant is protected by governmental
immunity from an intentional tort if he can show that: (1) the acts were undertaken during the
course of employment and the employee was acting, or reasonably believed that he was acting,
within the scope of his authority; (2) the acts were undertaken in good faith, or were not
undertaken with malice; and (3) the acts were discretionary, as opposed to ministerial. Odom,
760 N.W.2d at 228.
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The key challenge for the defendants is the second part of the test, which requires them to
show that they acted in good faith, or were not acting with malice. When “a reasonable fact-
finder could still draw an inference of . . . malice,” the defendant “is not entitled to governmental
immunity.” Romo v. Largen, 723 F.3d 670, 677 (6th Cir. 2013). The defendants have raised no
credible argument to refute the proposition that Galinis had a legal right to be in the courthouse;
indeed, they even seem to acknowledge this, given their discussion of Ventura, which
presupposes that the officers arrested Galinis illegally. Although the officers appeared to handle
Galinis calmly and swiftly, without the use of excessive force, the officers’ lack of probable
cause could allow for an inference of malice. Given the subjective nature of the inquiry, there
are genuine issues of material fact on this point, and we cannot conclude as a matter of law that
the defendants are entitled to governmental immunity.
IV
Given the several forfeited arguments raised by the appellants in this case—some of
which may actually have been stronger than the arguments made in the district court—it is worth
reiterating that our function as an appellate court “is to review the case presented to the district
court, rather than a better case fashioned after a district court’s unfavorable order.”
DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006).
Although it is understandable that counsel would want to raise previously overlooked arguments
on appeal—in one instance, in a reply brief—we decline to reverse the district court based on
legal theories that it never had the opportunity to consider.
Refusing to allow video recordings in a courthouse may be a sensible policy. Indeed, it is
the policy of this federal appellate court and the policy of the Branch County Courthouse today.
But for whatever reason, no such policy existed when Galinis made his recording, and he had a
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lawful right to be in the courthouse. Galinis has presented a credible case that the officers acted
unlawfully, and he is therefore entitled to a trial. The district court’s judgment is AFFIRMED.
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree
with the majority that the district court correctly denied qualified immunity to the officers.
Because I prefer not to opine on the strength of the appellant’s forfeited arguments on appeal—
or the wisdom of prohibiting video recordings in a courthouse—I respectfully concur only in the
judgment.
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