NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0400n.06
Case No. 21-1664
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 01, 2023
PAUL JOSEPH HARCZ, JR., et al., )
DEBORAH S. HUNT, Clerk
)
Plaintiffs-Appellees,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
BRODY BOUCHER, et al.,
) MICHIGAN
Defendants-Appellants. ) OPINION
)
Before: SUTTON, Chief Judge; BOGGS and READLER, Circuit Judges.
SUTTON, Chief Judge. Paul Harcz and other disability-rights advocates sought to protest
what they perceived as an inappropriate location and setting of an event celebrating the passage of
the Americans with Disabilities Act. State police prevented the protesters from approaching the
event. Tensions flared, and Harcz was arrested. The protesters sued, alleging that their First
Amendment rights had been violated. Harcz also brought Fourth Amendment and related state
law claims. Viewing the evidence in a light most favorable to Harcz and the protesters, we agree
that the police may have violated their clearly established rights. Because that is all that is needed
to survive a motion for summary judgment, we affirm.
On September 17, 2015, several groups planned an event to commemorate the 25th
anniversary of the Americans with Disabilities Act. Paul Harcz and some others were not satisfied.
They questioned why the event was held at the Michigan State Capitol, a space that they believed
Case No. 21-1664, Harcz, et al. v. Boucher, et al.
did not comply with ADA requirements, and they took issue with several of the event’s sponsors.
The event organizers got wind of the protesters’ concerns and learned that they intended to protest
the event. They contacted the Michigan State Police to alert them of the potential disruption.
Sergeant Jeffrey Held consulted with the event organizers and formulated a plan to reroute any
protesters to a different area of the Capitol grounds.
On the day of the event, the police approached Harcz and his colleagues across the street
from the Capitol. The protesters carried signs and leaflets. Police informed them that they would
not be allowed into the event area and would need to move their protest elsewhere. The protesters
responded that they intended to demonstrate peacefully and wanted to enter. Attempts at a
resolution between the parties and the police failed.
Tensions mounted. Several of the police defendants stood in a line and used metal barriers
to prevent the protesters from entering the event. At some point, Harcz announced his intention
to breach the police barrier. That attempt led to a short scuffle caught on body cam and to Harcz’s
arrest for felonious assault. Prosecutors ultimately dropped the charges.
The protesters sued the officers and event organizers under 42 U.S.C. § 1983. They alleged
that the officers and organizers violated their First Amendment rights by refusing entrance to the
ADA event. Harcz separately alleged false imprisonment, false arrest, and malicious prosecution
under federal and state law. The officers moved to dismiss, and the district court granted the
motion on all claims. Harcz v. Boucher, 300 F. Supp. 3d 945 (W.D. Mich. 2018).
A panel of this court affirmed in part and reversed in part. Harcz v. Boucher, 763 F. App’x
536, 545 (6th Cir. 2019). It affirmed the dismissal of the claims against the event organizers
because the protesters did not allege facts sufficient to show that they acted under color of law in
conspiracy with the state police. Id. at 540–41. But it reversed the dismissal of the claims against
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the police officers, reasoning that the protesters plausibly alleged a violation of a clearly
established First Amendment right. Id. at 541–44. It also reversed the dismissal of Harcz’s
individual claims, holding that he plausibly alleged that the officers lacked probable cause to arrest
him. Id. at 544–45.
On remand, the parties moved forward with discovery, but “the crux of the case remain[ed]
the same.” Harcz v. Boucher, No. 1:17-cv-112, 2021 WL 4476942, at *8 (W.D. Mich. Sept. 30,
2021). This time around, the district court, after invoking our decision and after reviewing the
evidence produced in discovery, denied the officers’ motion for summary judgment based on
qualified immunity. Id. at *10. It held that there was a genuine issue of fact about whether the
officers’ actions were content neutral, whether they served a significant government interest, and
whether they left sufficient alternative means of communication. Id. It also denied the officers’
motion for summary judgment on Harcz’s individual claims. Id. at *10–13. The officers appealed.
This is the second appeal in this case. Having reviewed the parties’ briefs and the record,
we have little to add to this court’s prior decision and the district court’s thoughtful and well-
reasoned decision on remand. We rely on the district court’s recent decision in affirming the
judgment and incorporate it by reference. We write further only to highlight and expand on two
features of this qualified-immunity case.
Free-speech violation. The officers insist that they prevented the protesters from entering
the event because of the threat posed to public safety, not because of the content of the protesters’
speech. But there is plenty of evidence from which a jury could conclude that the officers’ actions
were directed at the content of the protesters’ speech. When the initial callers informed the event
organizers of the protest, for example, they said it would be a “peaceful protest,” not a “violent”
one. R.95-14 at 3; R.95-16 at 4. Sergeant Held’s deposition testimony suggests that he planned
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to exclude the protesters at the direction of the event organizers because they were not a part of
the group’s message. R.95-15 at 9 (“So, I wanted her to decide if she wanted to have a separate
celebration and not invite the protesters or if she wanted to invite them in.”). A police incident
report describes a similar basis for excluding the protesters. R.95-16 at 5 (“We agreed that I would
allow them to protest on the other side of the Austin Blair Statue, and they would not be allowed
into the main area of the event, near the East Steps.”).
In addition to the lack of content neutrality of the officers’ action, the protesters’ evidence
also undercuts the officers’ assertion that their actions amounted to permissible time, place, and
manner restrictions. A restriction imposed on speech must be “narrowly tailored to serve a
significant government interest.” Saieg v. City of Dearborn, 641 F.3d 727, 735 (6th Cir. 2011)
(quoting M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841, 850 (6th Cir. 2008)). But here a conflict
in the evidence emerges over whether the officers had a legitimate justification to prevent the
protesters from entering. The officers, sure enough, raised several possible explanations for their
actions, all premised on protecting public safety and preventing violations of the event organizers’
rights. But when viewing the evidence in the light most favorable to the protesters, those
justifications generate fact disputes for juries, not matter-of-law determinations for judges. Several
of the protesters explained in deposition testimony that they intended to protest peacefully and
non-obtrusively. Police communications prior to the event also suggested the benign nature of the
protest. Even the police report after the event seemed concerned with disruption and not public
safety.
The video evidence does not clarify matters in either direction. As the prior panel and
district court concluded, the video footage does not conclusively resolve these fact disputes. Much
of it begins well after the officers initially encountered the protesters. While the video shows how
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the protesters reacted after being denied access, it does not capture the lead-in to the protest. All
in all, it is not the type of clearly contradictory video evidence that causes us to disregard the
protesters’ evidence-backed allegations. See, e.g., Scott v. Harris, 550 U.S. 372, 378–81 (2007).
Clearly established free-speech law. The officers’ arguments that the law in this area was
not clearly established faces an imposing hurdle. In the last interlocutory appeal, a panel of this
court unanimously held that a protester’s right to express their opposing views in a public forum
was clearly established so long as they were not disruptive and did not pose a threat to public
safety. Harcz, 763 F. App’x at 543 44.
True, the prior panel reviewed a motion to dismiss. True also, the prior panel was obliged
to accept the protesters’ allegations as accurate in determining if the officers violated clearly
established law. Id. at 543. Even so, this time around we still must review the protesters’ record-
supported facts in the light most favorable to them. Bays v. Montmorency Cnty., 874 F.3d 264,
268 (6th Cir. 2017). And they used discovery to back up the material allegations in their complaint,
the same allegations that met the “clearly established” hurdle in the last appeal.
The officers, to be sure, could impose time, place, and manner restrictions on the protesters
in the interest of public safety or crowd control. Saieg, 641 F.3d at 736. For instance, they might
enforce a permit to use a public area indicating that event organizers can constrain access. See id.
at 737–38. But those concerns must have been real, not conjectural and not abstract. Bays v. City
of Fairborn, 668 F.3d 814, 823 (6th Cir. 2012). Event organizers and the police may not force a
protester to leave simply because they disagree with the protester’s message. See id. In this
instance, the protesters allege that, at the time the officers prevented them from protesting, their
goal was only to object to the event in unobtrusive and safe ways and that the officers had no
legitimate reason to think otherwise. A reasonable jury could agree.
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While it is clearly established that organizers and officers may not keep people holding
contrary views out of a public event, id. at 821, it is not clearly established that law enforcement
must accept protesters’ claims that they will be non-disruptive. But here, the protesters deny any
plan to disrupt the proceedings. Though the organizers and police are not required to accept the
statement at face value, the mere possibility of actionable disruption only creates a fact dispute. A
jury may find contemporary concerns about disruption or safety to have been wholly unwarranted
or wholly warranted.
For these reasons, those identified in the last appeal, and those identified in the district
court’s decision currently on appeal, we affirm. Plaintiffs’ motion for sanctions under Appellate
Rule 38 is denied, as we do not view the appeal as frivolous. See Waeschle v. Dragovic, 687 F.3d
292, 296 (6th Cir. 2012) (per curiam).
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