{"id":765,"date":"2007-04-17T05:28:10","date_gmt":"2007-02-03T17:15:47","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-02-03T17:15:47","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=765","title":{"rendered":"Citizen uttering “God damn” during township meeting was obviously protected speech, and officer’s qualified immunity defense fails"},"content":{"rendered":"

The plaintiff was in a lawsuit with the Township of Montrose, Michigan, and he came to a township council meeting to discuss it and complain about his treatment by city officials. In a dialogue with a township officer while at the podium he said “That\u2019s why you\u2019re in a God damn lawsuit\u2014.” After he was done speaking, the defendant officer arrested him outside for disorderly conduct and using profane language. The District Court found for the officer [and that was a real stretch], but the Sixth Circuit reversed, finding that this was classic free speech, and the arrest was without probable cause and plaintiff stated a claim for retaliation against his political speech in a public forum. Leonard v. Robinson<\/a>, 07a0051p.06 (6th Cir. February 2, 2007):<\/p>\n

We will not grant immunity to a defendant if no reasonably competent peace officer would have found probable cause. See Malley v. Briggs,<\/em> 475 U.S. 335, 341 (1986). In other words, \u201c[i]t is clearly established that arrest without probable cause violates the Fourth Amendment.\u201d Klein v. Long,<\/em> 275 F.3d 544, 550 (2001) (quoting Donovan v. Thames<\/em>, 105 F.3d 291, 297\u201398 (6th Cir. 1997)). Where the reasonableness of an officer\u2019s actions hinge on disputed issues of fact, \u201cthe jury becomes the final arbiter of … immunity, since the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury.\u201d Brandenburg v. Cureton<\/em>, 882 F.2d 211, 215\u201316 (6th Cir. 1989).<\/p>\n

\u201c[G]overnment officials in general, and police officers in particular, may not exercise their
\nauthority for personal motives, particularly in response to real or perceived slights to their dignity.\u201d Bloch v. Ribar,<\/em> 156 F.3d 673, 682 (6th Cir. 1998) (quoting Duran v. Douglas<\/em>, 904 F.2d 1372, 1378 (9th Cir. 1990)). For a plaintiff to state a claim for First Amendment retaliation, he must show that the injury was material, Bloch,<\/em> 156 F.3d at 678 (that the injury \u201cwould likely chill a person of ordinary firmness from continuing to engage in that activity\u201d), \u201cthat his conduct was constitutionally protected,\u201d and that it was a \u201cmotivating factor\u201d behind the government\u2019s actions. Adair v. Charter County of Wayne,<\/em> 452 F.3d 482, 492 (6th Cir. 2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,<\/em> 429 U.S. 274, 287 (1977). A \u201cmotivating factor\u201d is essentially but-for cause\u2014\u201cwithout which the action being challenged simply would not have been taken.\u201d Greene,<\/em> 310 F.3d at 897.<\/p>\n

Probable cause is clearly relevant to Leonard\u2019s First Amendment retaliation claims. See Hartman v. Moore,<\/em> 126 S. Ct. 1695, 1699 (2006). In Hartman<\/em>, the Supreme Court determined that probable cause is an element of a malicious prosecution charge brought as constitutional tort under Bivens v. Six Unknown Federal Narcotics Agents,<\/em> 403 U. S. 388 (1971). Hartman,<\/em> 126 S. Ct. at 1699. Although there are differences between wrongful arrest and malicious prosecution, see id.<\/em> at 1705 (noting that \u201cthe causal connection required here is not merely between the retaliatory animus of one person and that person\u2019s own injurious action, but between the retaliatory animus of one person and the action of another\u201d), there is an obvious similarity in that \u201cthe significance of probable cause or the lack of it looms large,\u201d id.<\/em> at 1706. Hartman<\/em>, therefore, calls into question our cases holding that \u201cprobable cause is not determinative of the [First Amendment] constitutional question.\u201d See Greene,<\/em> 310 F.3d at 895. Yet, we need not decide whether Hartman<\/em> adds another element to every First Amendment claim brought pursuant to \u00a7 1983 because, when viewed in the light most favorable to the plaintiff, we find that the facts of this case demonstrate an absence of probable cause.<\/p><\/blockquote>\n

The police had a reasonable belief in the apparent authority to enter to look for the defendant inside what turned out to be a two family unit. The defendant was a suspect in a murder, and they had reason to believe he was hurt stabbing his victim 56 times. They found him bleeding, hiding under a table in the basement. The search was valid. People v Porter, 37 A.D.3d 1165, 829 N.Y.S.2d 305 (4th Dept. 2007).*<\/p>\n

Defendant’s Alford <\/em>guilty plea waived his search issue. State v. Montgomery, 2007 Ohio 439, 2007 Ohio App. LEXIS 388 (2d Dist. February 2, 2007).*<\/p>\n

Officer had probable cause for a stop after pulling up next to defendant’s car and seeing him drinking beer with a foam head from a glass. State v. Davis, 2007 Ohio 408, 2007 Ohio App. LEXIS 359 (8th Dist. February 1, 2007)* (Well, duh!).<\/p>\n","protected":false},"excerpt":{"rendered":"

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