King v. Ambs

ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. O’MALLEY, D.J. (pp. 615-26), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

This is an appeal from summary judgment entered in favor of a police officer in a § 1983 action. Officer Kevin Ambs was questioning a third party, Nicholas Klein, when plaintiff Sean King told Klein not to speak to the officer. After King had twice told Klein not to talk to the officer, Officer Ambs threatened to arrest King if he said “one more word.” King told Klein a third time not to speak to the officer, at which point Officer Ambs arrested King. Relying on Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), King argues that the arrest violated his First and Fourth Amendment rights. Officer Ambs argues that the arrest did not violate the Constitution and that he is entitled to qualified immunity. The district court granted Officer Ambs’ motion for summary judgment and held that King’s interference with Officer Amb’s investigation provided probable cause for the arrest. We affirm the district court’s judgment.

On December 15, 2002, after 3:00 a.m., Officer Kevin Ambs of the Columbia Township Police Department was on a routine patrol when he came upon an unlocked vehicle improperly parked in a rural residential area. Officer Ambs stopped his patrol car, ran the license plate number of the vehicle, then exited his patrol car, shined a light into the vehicle, and saw marijuana on the dashboard. Officer Ambs seized the marijuana, called for a wrecker to impound the vehicle, and began an inventory search of the vehicle.

Klein’s house was across the street from the vehicle that Officer Ambs was searching. While Officer Ambs was conducting the search, King and Lucas Anderson *609came out of Klein’s residence, approached the vehicle, and asked Officer Ambs why he was searching the vehicle. Officer Ambs asked King and Anderson whether either of them was the registered owner of the vehicle, and both responded that they were not. After King initially denied that he knew the owner of the vehicle, he told Officer Ambs that the registered owner was in the house across the street. During this exchange at the vehicle, King and Anderson told Officer Ambs that he did not have the right to search the vehicle. King testified that Officer Ambs then threatened to arrest King and Anderson for hindering an investigation. Officer Ambs claims that he smelled alcohol on King and Anderson, and he threatened to arrest the two men for public intoxication. King and Anderson laughed at the officer when he threatened to arrest them because, according to King, they did not think that they had done anything wrong. Officer Ambs asked whether the men had been drinking; both responded that they had but claimed to be twenty-one (though King was only twenty at the time), and they offered to show the officer their identifications.

King and Anderson decided to return to the house because they felt that they had “asked enough questions” of Officer Ambs and did not believe that they would be able to stop him from impounding their friend’s vehicle. Officer Ambs followed King and Anderson to the Klein home. Klein’s home had a glass entryway leading to the front door of the house. When Officer Ambs tried to open the glass door to the entryway, Anderson held onto the handle from the inside to prevent the door from opening and, in response, Officer Ambs told Anderson that he would go to jail if he kept resisting. Once Officer Ambs was in the entryway with King and Anderson, he knocked on the front door. Nick Klein answered and identified himself as a resident of the house. King and Anderson immediately stepped into the house while the officer remained in the entryway.

Officer Ambs asked Klein to step outside the house, and Klein responded by stepping into the doorway between the house and the entryway, leaving the door to the house open. As Klein went to exit the house, King and Anderson urged Klein not to go outside the house and told Klein that he did not have to talk to the officer. Officer Ambs testified that both King and Anderson “would speak over” him. King claims that he “was not speaking over Officer Ambs and was in no way interfering, physically or verbally, with Officer Amb’s attempt to speak with Mr. Klein.” As Officer Ambs continued his interview with Klein, King again advised Klein that he did not have to speak to the officer and told Klein that he did not have to go outside with Officer Ambs. Officer Ambs then advised King that “if he said one more word that he would be arrested.” At this point, according to King, Klein “went to step outside of the house ... and began to shut the door” with King inside the house. A third time, King told Klein that he did not have to talk to the officer. Officer Ambs then entered the house, grabbed King’s arm, and told King that he was under arrest. King broke free of Officer Ambs’ grasp and retreated into the Klein home. Officer Ambs followed King through the house before forcibly subduing King with pepper spray. Officer Ambs then searched King and found a glass smoking pipe in his pocket.

King was taken to jail and was given a breathalyser test that showed a reading of 0.14, above the Michigan standard for intoxication of .08. King was charged with being drunk in public, opposing an officer in the performance of his duty, resisting arrest, and possessing marijuana. On March 24, 2003, the state district court dismissed all charges against King. First, *610the state court dismissed the public drunkenness charge because the local ordinance under which King was charged had been superseded by a state statute. Second, the state court found that Officer Ambs had no probable cause to arrest King for opposing an officer. Relying on the Michigan Supreme Court opinion in People v. Vasquez, 465 Mich. 83, 631 N.W.2d 711 (2001), which interpreted a different state statute (M.C.L. § 750.479), the state court held that the local ordinance prohibiting opposing an officer in the performance of his duties prohibited only “actual physical interference.” Having held that there was no probable cause for King’s arrest, the state court dismissed the charge of resisting arrest, granted King’s motion to suppress the glass pipe, and then dismissed the charge of possession of marijuana.

King subsequently filed this § 1983 action. King alleges that his arrest was in violation of his rights under the First and Fourth Amendments. Officer Ambs moved for summary judgment, claiming qualified immunity. The district court held a hearing, granted Officer Ambs’ motion, and held that Officer Ambs did not violate King’s Fourth Amendment rights because King’s verbal interference with the officer’s investigation amounted to a “physical interruption of the questioning,” which provided probable cause for the arrest. The court concluded that Officer Ambs did not violate King’s First Amendment rights because it was “the fact of the interference” with the performance of police duties rather than the content of King’s words themselves that constituted the basis for the arrest. The court also held, in the alternative, that even if there had been a violation of either or both rights, the violation would not have been clearly established. King now appeals the district court’s grant of summary judgment.

Because Officer Ambs had probable cause to arrest King, Officer Ambs did not violate King’s Fourth Amendment rights. King was arrested for disorderly conduct because he obstructed Officer Ambs’ questioning of Klein in the course of a criminal investigation. Columbia Township Ordinance § 28.3.3 defined a disorderly person as, “A person who obstructs, resists, impedes, hinders or opposes a peace officer in the discharge of his or her duties.” King argues that under Michigan law obstruction is limited to “physical obstruction,” and therefore King’s conduct was not prohibited by the statute. In so arguing, King relies on the holding in People v. Vasquez, 631 N.W.2d at 728. However, as the district court reasoned below, Vasquez involved a textually different statute and meaningfully different facts.

The defendant in Vasquez had been charged with violation of Michigan’s “resisting and obstructing” statute, M.C.L. § 750.479. That statute provided in relevant part that, “Any person who shall knowingly and willfully ... obstruct, resist, oppose, assault, beat or wound ... any person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace shall be guilty of a misdemeanor.... ” Vasquez, 631 N.W.2d at 714 (quoting M.C.L. § 750.479 as it then provided). The question before the Michigan Supreme Court was whether “obstruction” as used in the state statute criminalized the conduct of a defendant who lied to a police officer about his name and age. Id. In holding that it did not, the Michigan Supreme Court held that the state statute proscribed “threatened, either expressly or impliedly, physical interference and actual physical interference with a police officer.” Id. In holding that “obstruct” in this statute was limited to physical obstruction, the court emphasized that “the statute uses the word ‘obstruct’ *611as part of a list containing five other words, namely, ‘resist, oppose, assault, beat [and] wound’ ” and that the term had to be given a meaning “logically related to the five surrounding words.” Id. at 715. Three of the five verbs (assault, beat, and wound) clearly imply physical action.

In contrast to the state statute in Vasquez, the fist of terms in the Columbia Township Ordinance, “obstruct! ], resist! ], impede! ], hinder! ] or oppose! ],” presents a less apparently physical context in which to interpret the term “obstruct.” Given this difference, the “physical obstruction” limitation imposed on the term “obstruct” in Vasquez may not apply to obstruction in this separate statutory context.

This distinction is directly supported by our analysis in a § 1983 case involving an arrest for refusing to provide identification. See Risbridger v. Connelly, 275 F.3d 565, 569 n. 3 (6th Cir.2002). Risbridger was a § 1983 case in which an officer who arrested the plaintiff for failing to provide identification relied on a city ordinance that made it a misdemeanor to “[a]ssault, obstruct, resist, hinder, or oppose any member of the police force ... in the discharge of his/her duties as such.” Id. at 568. In upholding a qualified immunity determination, we explicitly rejected the plaintiffs reliance on Vasquez: “Unlike the Michigan statute [in Vasquez ], however, the language of the city’s ordinance, which makes it unlawful to assault, obstruct, resist, hinder or oppose an officer, does not as a whole imply that physical interference is required to establish a violation.” Id. The ordinance in Risbridger, unlike the one in the instant case, contained the word “assault.” The reasoning of Risbridger thus directly supports reading the ordinance in this case to extend to nonphysical obstruction, notwithstanding Vasquez. In Risbridger we also found it significant that, as in this case, “we are not asked to determine whether there was sufficient evidence to support a conviction [as in Vasquez ], but only whether there was probable cause at the time of the arrest to believe the city’s ordinance had been violated.” Id.

Moreover, the conduct for which King was arrested is very different than the conduct at issue in Vasquez. The defendant in Vasquez was charged with obstruction because, after he was arrested, it was discovered that he had given the police a false name and age. Id. at 714. King, on the other hand, was arrested after repeatedly interrupting an officer who was questioning a third party. As the district court observed, “Plaintiffs conduct in persisting to interfere with Officer Ambs’ investigation amounted to a physical interruption of the questioning.” King v. Ambs, No. 04-74867, 2006 WL 800751, *6 (E.D.Mich. Mar. 28, 2006). The district court’s characterization of King’s interruption as “physical” finds support in Vasquez itself, in which the lead opinion expressly contemplated that such actions as refusing to comply with a search warrant would be sufficiently “physical” even under the statute at issue in Vasquez: a “defendant’s refusal to comply with the search warrant, although not an express threat of physical interference, was sufficient to support a charge under the statute because by refusing to cooperate, defendant was, in effect, physically interfering with the police officers.” 631 N.W.2d at 720. Cf. Houston v. Hill, 482 U.S. 451, 463, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (“by shouting and running beside [an] officer the person may physically obstruct the officer’s investigation” (emphasis added)); State v. Occhino, 572 N.W.2d 316, 320-21 (Minn.Ct.App. 1997) (applying Minnesota’s obstruction statute that had been narrowly construed to criminalize only “physical” obstruction, and holding that plaintiffs “intentional repeated verbal interruptions exceeded ordinary verbal criticism of the police and rose *612to the unlawful level in which his words had the effect of physically interfering with [an officer’s] performance of [his] official duties”). Thus, even if the Columbia Township Ordinance were subject to Vasquez’s construction of the term “obstruction,” King’s conduct could be characterized as “physical interference” in the sense that King’s speech interrupted Officer Ambs in a way that made it difficult, if not impossible, to conduct actual questioning.

If the Columbia Township ordinance is construed in either of the ways suggested above, then Officer Ambs had probable cause to arrest King for violation of the Columbia Township ordinance, and therefore the arrest did not violate King’s Fourth Amendment rights. See Crockett v. Cumberland College, 316 F.3d 571, 580 (6th Cir.2003). However, even if under Michigan law the holding of Vasquez were extended to apply to the local ordinance and the conduct at issue in this case, and if the requirement of “physical interference” were interpreted narrowly in this new context so as not to cover King’s conduct, Officer Ambs would still be entitled to qualified immunity.

“Qualified immunity is an affirmative defense that shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Causey v. Bay City, 442 F.3d 524, 528 (6th Cir.2006) (internal quotation marks omitted). “There are two steps in the analysis: (1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.” Estate of Carter v. Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). As demonstrated above, there was no constitutional violation and the first step of Saucier is not met. Assuming however that there was a Fourth Amendment violation, at the time of King’s arrest, the application of the Vasquez holding to the ordinance and facts of this case had not been clearly established.

When considering a claim of qualified immunity, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Because Vasquez interpreted a statute other than the local ordinance on which Officer Ambs relied and considered facts that were very different than those actually confronted by Officer Ambs, Vasquez could not have clearly established that Officer Ambs’ conduct in arresting King for obstruction was without probable cause. We have, albeit in an unpublished opinion, accorded qualified immunity to an officer who had made an arrest under a state statute that we concluded was not applicable, where the state’s case law concerning the scope of the statute was not clear, and where the district court sitting in the state in question had actually held that there was probable cause under the statute. Nails v. Riggs, 195 Fed.Appx. 303, 312 (6th Cir.2006). This case presents the same situation. See also Santana v. Calderon, 342 F.3d 18, 30-31 (1st Cir.2003) (state employee’s due process right to retain her job was not clearly established because a property interest was not clearly established under Puerto Rico law); Young v. Harrison, 284 F.3d 863, 868-69 (8th Cir.2002) (evicted guest’s right to be free from warrantless search of his hotel room not clearly established because his continuing interest in the hotel room was not clearly established under state law). Compare Spruytte v. Walters, 753 F.2d 498, 510-11 (6th Cir.1985) (denying quali*613fied immunity for due process violations where the meaning of a state regulation creating the property right was clearly established). Summary judgment was therefore proper on King’s Fourth Amendment claim.

The district court also properly granted summary judgment on King’s First Amendment claim that he was arrested for constitutionally protected speech. Because of the time and manner of King’s repeated exhortations to Klein, his statements were not constitutionally protected. As the district court observed, the very case upon which King relies in making his First Amendment claim, Houston v. Hill, 482 U.S. 451,107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), states that a properly tailored statute may criminalize precisely the kind of behavior that prompted King’s arrest. King, 2006 WL 800751, at *9. While invalidating the city ordinance at issue in Hill as overly broad, the Supreme Court observed that “a municipality constitutionally may punish an individual who chooses to stand near a police officer and persistently attempt to engage the officer in conversation while the officer is directing traffic at a busy intersection.” Hill, 482 U.S. at 463 n. 11, 107 S.Ct. 2502 (citing Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)). The Court noted that an individual may be punished for “physically obstructing an officer’s investigation” as a result of “ ‘contentious and abusive’ speech” that “can interrupt an officer’s investigation.” Id. In discussing the kind of speech act that could be criminalized, the Court considered the example of “a person who run[s] beside [an officer pursuing a felon] in a public street shouting at the officer.” Id. (internal quotation marks omitted). The Court stated that such conduct could be punished because “what is of concern in that example is not simply contentious speech, but rather the possibility that by shouting and running beside the officer the person may physically obstruct the officer’s investigation.” Id. Such obstruction of an ongoing investigation is precisely what prompted King’s arrest.

It is true that the underlying facts in Hill involved the defendant’s shouting at police in an attempt to divert their attention from his friend during a confrontation. Id. at 453-54, 107 S.Ct. 2502. But the Supreme Court did not hold that such actions could not be criminalized. Instead it ruled that the ordinance in that case could not be enforced at all because it was so broad. The Court relied on the fact that the Houston ordinance “prohibited] speech that ‘in any manner ... interrupts]’ ” an officer. 482 U.S. at 461, 107 S.Ct. 2502 (emphasis added). The ordinance prohibited merely “interrupting] a city policeman ... by verbal challenge during an investigation.” Id. at 454, 107 S.Ct. 2502. The criminal defendant prevailed in Hill not because he had a constitutional right to engage in the activity he engaged in, but because the ordinance prohibited mere interruption of a policeman. The ordinance in Hill would presumably have been just as unconstitutional had the particular plaintiff in Hill been charged under the ordinance for an act that also included physical interference. The ordinance in the instant case is of course not so broad, and King does not challenge the ordinance on overbreadth grounds. The statute here does not prohibit mere interruption, but requires instead some form of “obstruction.” See Fair v. City of Galveston, 915 F.Supp. 873, 879 (S.D.Tex.1996) (distinguishing Hill in a case involving a statute that prohibited “ ‘interfering’ with a police officer lawfully executing his duty” because the statute “facially pertains to acts which pose an actual hindrance to the accomplishment of a specified task, as opposed to the ordinance considered in Hill, which pertained primarily to verbal acts through use of the term ‘interrupt’ ”).

*614The Supreme Court’s holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), further demonstrates that King’s repeated interruptions of Officer Ambs’ investigation were not protected by the First Amendment. Col-ten challenged his arrest for disorderly conduct after he repeatedly interrupted a police officer and refused to leave the area where the officer was issuing a traffic citation to Mendez, a third party. Id. at 106-07, 92 S.Ct. 1953. Colten argued that his arrest violated the First Amendment because “in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information.” Id. at 109, 92 S.Ct. 1953. However, the Court held that Colten “was not engaged in activity protected by the First Amendment” because “[h]e had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time.” Id. The Court explained that, “[t]he State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction.” Id. The State’s interest in Officer Ambs’ investigation was at least as great as the interest at stake in Colten. Like Colten, this case involved the investigation of a traffic violation (an improperly parked car) in addition to evidence of a drug crime, which arguably heightened the State’s interest here.

King’s conduct in this case differs in no meaningful way from the conduct of the hypothetical person running beside the officer discussed in Hill or the defendant in Colten. Each case involved an individual whose act of speaking, by virtue of its time and manner, plainly obstructed ongoing police activity involving a third party. King’s exhortations to Klein and his refusal to be quiet while Officer Ambs questioned Klein are no more entitled to First Amendment protection than the shouting of Hill’s hypothetical runner or Colten’s attempts to speak with Mendez after the police ordered Colten to leave.

Unlike Greene v. Barber, 310 F.3d 889 (6th Cir.2002), where we denied the arresting officer’s claim to qualified immunity because of questions concerning the officer’s true motivation for arresting the plaintiff, there is no material issue as to whether Officer Ambs’ decision to arrest King was motivated by the content of the speech in question. In Greene we denied summary judgment to the officer actually insulted by plaintiff Greene because, “[t]aken in the light most favorable to Mr. Greene, ... the record [ ] would entitle a jury to find that the arrest was the product of an improper motive.” Id. at 897. In contrast, King’s statements were not directed at Officer Ambs in any personal way, and King offers no evidence to suggest that Officer Ambs was motived by the content of King’s statements rather than the fact of the repeated obstruction. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (requiring plaintiffs to offer more than a scintilla of evidence to defeat a motion for summary judgment).

Similarly, the facts of this case are unlike those in Leonard v. Robinson, 477 F.3d 347 (6th Cir.2007), where this court held that there was a triable issue as to the officer’s motive in arresting the plaintiff, albeit a “close case on this point,” because “[the plaintiffs] deposition reveal[ed] disputed facts about a prior lawsuit ..., a feud between the police department and [the plaintiffs] family, and [the police chiefs] ‘hatred’ of [the plaintiffs] wife.” Id. at 362. There is no indication in this case that Officer Ambs or the Columbia police department had any prior dealings with King that would support a reasonable belief that the arrest here was *615motivated by anything other than King’s disruptive conduct on the night of his arrest. Additionally, unlike in Leonard, there is no material dispute about the events that preceded King’s arrest. See id. (“The recording of the Township meeting, with Leonard off-camera and recorded only in voice, also creates a triable issue on whether Leonard disrupted the meeting and whether Robinson lied about his motive to attend.”).

The undisputed facts of this case are that King repeatedly interfered with an ongoing criminal investigation, that after King had done so twice, Officer Ambs warned King that “if he said one more word” he would be arrested for so doing, and that King continued to interfere with the officer’s attempt to interview Klein. Based on these facts, and regardless of whether King actually “spoke over” Officer Ambs, it is clear that King was arrested for the act of disrupting the officer’s investigation, and not for the content of his speech. We have reached a similar conclusion in other cases involving speaking to a policeman. In Schliewe v. Toro, 138 F.App’x 715, 723 (6th Cir.2005), for instance, we held that “it is abundantly clear” that the plaintiff, arrested under a disorderly conduct statute, “was arrested for bleeding on those around him and threatening [a police officer], regardless of the fact that he used profanity.” And in Johnson v. Estate of Laccheo, 935 F.2d 109, 112 (6th Cir.1991), we held that a security guard who said “no” to deny police permission to pass through a gate while pursuing a traffic violator “was not arrested for his speech but, rather, the act of preventing [the officer] from pursuing the traffic violator.”

Finally, as with our analysis of King’s Fourth Amendment claim above, while King’s arrest did not violate any constitutional right, and the first step of the qualified immunity analysis is not met, even if the holding in Hill could be extended to apply to King’s arrest under the particular facts of this case, Officer Ambs would still be entitled to qualified immunity as to the alleged First Amendment violation. For a violation to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Because a reasonable officer would not have known that enforcement of the Columbia Township obstruction ordinance in the context of this case violated the First Amendment, the right was not clearly established and Officer Ambs would be entitled to qualified immunity at the second step of the Saucier analysis. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151.

For the foregoing reasons, the judgment of the district court is AFFIRMED.