354 F.3d 540 (6th Cir. 2004), 02-1421, Dean v. Byerley

Docket Nº:02-1421
Citation:354 F.3d 540
Party Name:Dean v. Byerley
Case Date:January 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 540

354 F.3d 540 (6th Cir. 2004)

E. Stephen DEAN, Plaintiff-Appel2004

v.

Thomas K. BYERLEY, Defendant-Appellee.

No. 02-1421.

United States Court of Appeals, Sixth Circuit

January 8, 2004

Argued: Aug. 1, 2003.

Page 541

[Copyrighted Material Omitted]

Page 542

[Copyrighted Material Omitted]

Page 543

Victoria V. Kremski (argued and briefed), State Bar of Michigan, Lansing, MI, for Appellee.

E. Stephen Dean (argued and briefed), Piedmont, MO, pro se.

Before DAUGHTREY, MOORE, and SUTTON, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SUTTON, J. (pp. 559-68), delivered a separate dissenting opinion.

Page 544

OPINION

MOORE, Circuit Judge.

This appeal raises an important question concerning the scope of an individual's right to engage in targeted residential picketing in the wake of the Supreme Court's decision in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). We conclude that Frisby did not place in question an individual's clearly established right to engage in peaceful targeted residential picketing; rather it carved out an exception to this right, allowing the government to prohibit such picketing through a narrowly tailored and applicable time, place, or manner regulation.

Plaintiff-Appellant, E. Stephen Dean ("Dean"), appeals the district court's order granting summary judgment to Defendant-Appellee, Thomas K. Byerley ("Byerley"), the Regulation Counsel and Director of Professional Standards Division for the State Bar of Michigan. Dean filed this action under 42 U.S.C. § 1983, alleging that Byerley violated Dean's First Amendment rights during a confrontation that occurred while Dean was picketing in front of Byerley's residence. Dean also brought state-law claims of assault and libel and asked the district court to exercise supplemental jurisdiction over these claims under 28 U.S.C. § 1367(a). The district court granted Byerley's motion for summary judgment on the federal claim, holding that Dean failed to establish that Byerley acted under color of state law. The district court also dismissed the state-law claims pursuant to 28 U.S.C. § 1367(c)(3).

Contrary to the district court, we conclude that Dean created a genuine issue of material fact as to whether Byerley acted under color of state law. We further hold that Dean had a constitutionally protected right to engage in targeted picketing on the street in front of Byerley's residence. As result, we also reach the issue of whether Byerley is entitled to an immunity defense. For the following reasons, we REVERSE the district court's grant of summary judgment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

After graduating from the Thomas Cooley School of Law at age 60, Dean submitted his application for admission to the State Bar of Michigan in December 2000. When Dean delivered his application to the Executive Director of the State Bar of Michigan, Dean expressed concern that it was incomplete and explained that he was unable to recall the addresses of all of his prior residences. Dean alleges that subsequently State Bar of Michigan employees repeatedly requested additional information and refused to accept his explanation that he had done his best to obtain the required information, but that he could not remember the addresses of residences he had lived in over twenty-five years ago. After this interaction with the State Bar of Michigan employees, but before the Bar made a decision regarding Dean's bar application and before Dean took the bar exam, Dean began picketing to publicize the treatment he received from the State Bar of Michigan employees. Initially, Dean and two individuals hired by Dean picketed the State Bar of Michigan building. Then, on March 27, 2001, Dean and the hired individuals extended their picketing to Byerley's residence.

On the morning of March 27, 2001, Dean and the hired individuals picketed near Byerley's residence. Dean alleges that he and the hired individuals only picketed on the street in front of Byerley's residence. Byerley, on the other hand, alleges that Dean and the hired individuals also picketed

Page 545

on Byerley's private property. The parties agree, however, that on the morning of March 27, 2001, Dean and the hired individuals did not picket in front of any other residence in the neighborhood.

Dean further alleges that while he and the hired individuals were picketing near Byerley's residence, a confrontation occurred between Byerley and the picketers. Dean alleges that during the confrontation, Byerley told Dean "that because of his picketing the State Bar of Michigan and his home [Dean] would never be allowed to practice law in the state of Michigan. [Byerley] then stated that he was going to have [Dean] arrested for picketing." Second Am. Compl., Aug. 23, 2001, pp 13, 14. Dean also alleges that Byerley twice "intentionally drove his automobile directly towards [Dean]." Id. ¶ 11, 18. After the confrontation, Dean and the hired individuals left the area. Since the confrontation, Dean has not picketed near Byerley's residence or the State Bar of Michigan building.

Two days after the incident, on March 29, 2001, Byerley sent Dean a letter pertaining to the confrontation. This letter was written on State Bar of Michigan letterhead. In its entirety, the letter reads:

As you know, you and two other individuals were outside of my private residence on Tuesday, March 27, 2001 carrying signs. Although you have a right to exercise your First Amendment rights on public property, you do not have that right on private property.

On March 27 I verbally told you that you were on private property and that if you did not immediately leave I would call the police. This letter memorializes that statement. You are put on formal notice that you are never welcome on my private property and that if you trespass again I will ask that you be arrested. Similarly, you are notified that you are not to enter the private property of any other State Bar of Michigan employee or officer. I fully expect that you will not repeat your trespass.

Def.'s Br. in Supp. of Mot. for Summ. J., Ex. E.

On April 4, 2001, Dean commenced a pro se action against Byerley in the United States District Court for the Western District of Michigan. In this action, Dean brought a § 1983 claim, alleging that Byerley violated his First Amendment rights by threatening that Dean would never practice law in Michigan due to his picketing. Dean also brought two state-law assault claims, alleging that Byerley committed assaults by twice driving his car at Dean, and a state-law libel claim, alleging that Byerley committed libel by sending to third parties copies of his letter to Dean, in which he stated that Dean had trespassed. In his complaint, Dean requested approximately $2 million in compensatory and punitive damages and "equitable relief in the form of an order from [the district court] that Defendant refrain from interfering with Plaintiff's rights of free speech by threats of bodily harm or by threat of arrest." Second Am. Compl., Aug. 23, 2001, ¶ 45.

In August 2001, Byerley filed a motion for summary judgment. A magistrate judge concluded that summary judgment was proper based upon his determination that Dean did not have a constitutionally protected right to engage in targeted residential picketing. The magistrate judge recommended that the district court grant summary judgment to Byerley on Dean's § 1983 claim, and dismiss Dean's state-law claims pursuant to 28 U.S.C. § 1367(c)(3). The district court granted Byerley's motion for summary judgment, based instead upon its determination that Byerley did

Page 546

not act under color of state law when he allegedly threatened that Dean would not become a member of the State Bar of Michigan due to his picketing. In making this determination, the district court noted that Byerley was exercising the same authority possessed by private individuals to have an individual arrested for trespassing and to report an applicant's conduct to the State Bar of Michigan. The district court also dismissed Dean's state-law claims pursuant to 28 U.S.C. § 1367(c)(3).

II. ANALYSIS

A. Standard of Review

This court reviews de novo the district court's grant of summary judgment. Waters v. City of Morristown, 242 F.3d 353, 358 (6th Cir. 2001). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Waters, 242 F.3d at 358 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Additionally, the judge must not weigh the evidence but rather must "determine whether there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted). There is a genuine issue for trial if there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505) (internal quotation marks omitted).

B. Section 1983 Claim

1. First Amendment

Dean filed this action under 42 U.S.C. § 1983, claiming that Byerley violated Dean's constitutionally protected right to engage in free speech. "To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived the plaintiff of a right secured by the Constitution or laws of the United States." Id. at 358-59. Thus, to prevail on his § 1983...

To continue reading

FREE SIGN UP