Kennedy v. City of Villa Hills

• Citation: 635 F.3d 210
• Decision Date: 24 March 2011
• Docket Number: No. 09–6442.,09–6442.
• Parties: Kenneth O. KENNEDY, Plaintiff–Appellee,v.CITY OF VILLA HILLS, KENTUCKY et al., Defendants,Joseph Schutzman, Individually, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

635 F.3d 210

Kenneth O. KENNEDY, Plaintiff–Appellee,

v.CITY OF VILLA HILLS, KENTUCKY et al., Defendants,Joseph Schutzman, Individually, Defendant–Appellant.

No. 09–6442.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2011.Decided and Filed: March 24, 2011.

ARGUED: Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, P.L.L.C., Covington, Kentucky, for Appellant. Charles H. Schaffner, Covington, Kentucky, for Appellee. ON BRIEF: Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, P.L.L.C., Covington, Kentucky, for Appellant. Charles H. Schaffner, Covington, Kentucky, for Appellee.Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Kenneth O. Kennedy was embroiled in a zoning dispute about the expansion of a strip mall next to his home. In May 2005, he approached Joseph Schutzman, a police officer and building inspector, in the Villa Hills city building. Refusing to speak to Kennedy, Schutzman left the city building. Kennedy told nearby city workers in the building that “that son of a bitch [Schutzman] broke all of the zoning laws.” Schutzman ran back inside and twice asked Kennedy what he had said. Kennedy then called Schutzman a “fat slob,” and Schutzman responded by arresting Kennedy for disorderly conduct. After the criminal case was resolved in his favor, Kennedy sued several defendants, including Schutzman, alleging various claims, including wrongful and retaliatory arrest.

The district court granted summary judgment to all defendants except Schutzman, who has appealed the district court's denial of qualified immunity. Viewing the facts favorably to Kennedy, we assume that his outburst was not unreasonably loud and did not threaten to generate public alarm. Because a reasonable officer could not have believed that he had probable cause to arrest Kennedy under the circumstances that Kennedy has described, we AFFIRM the denial of qualified immunity on Kennedy's Fourth Amendment claim of wrongful arrest. Moreover, because a factfinder could determine that the personal insults motivated Schutzman to arrest Kennedy, we also AFFIRM the denial of qualified immunity on Kennedy's First Amendment claim of retaliatory arrest. Accordingly, we REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Since 1989, Kennedy has lived at 2821 Amsterdam Road in Villa Hills, Kentucky. Although he had assumed that the property was zoned for residential use, it is apparently zoned instead for commercial use. Kennedy learned of the zoning problem when an abutting strip mall announced its plan to expand. The strip mall obtained a building permit from Joseph Schutzman, who is both a police officer and a building inspector for the City of Villa Hills, Kentucky (“City”). In December 2004, Kennedy briefly conversed with Schutzman by phone to express opposition to the project. Later, Kennedy sued the strip mall's owner, the company from which he purchased his home, and the City in state court.

When bulldozers and construction workers arrived to begin construction on May 18, 2005, Kennedy went to the Villa Hills city building to confront Schutzman. When Kennedy arrived at 7:00 a.m., he stood in the hallway outside Schutzman's office and told Schutzman to “[t]ake your pick, the building [permit] is void or obsolete.” R. 22 (Kennedy Dep. at 72). Kennedy's voice “[p]robably” was raised. Id. at 73. Schutzman responded that the pending lawsuit prevented him from discussing the issue with Kennedy, and then Schutzman left the building and exited into a parking lot. Still upset, Kennedy spoke with the three city workers who were standing in an adjacent area of the building and who had “probably heard what [Kennedy had] said” to Schutzman. Id. at 74. Kennedy told them that “[t]hat son of a bitch broke all of the zoning laws.” Id. at 78. Kennedy “[p]robably” voiced the insult “rather loudly.” Id. at 79.

The building was small, and Schutzman presumably overheard Kennedy's comment because Schutzman “came running back in[side],” “got in [Kennedy's] face,” and asked Kennedy twice what he had said. Id. “You're a fat slob,” Kennedy responded, “probably” yelling. Id. at 78, 80. Schutzman arrested Kennedy for disorderly conduct. The citation that Schutzman wrote mentions “verbal abuse in front of public works employees” and describes Kennedy as “highly agitated,” but it does not mention how loudly Kennedy spoke. R. 22–4 (Citation). It also observed that the “building was not open for business.” Id.

Kennedy first brought suit for his arrest in Kenton Circuit Court on May 8, 2006. The defendants removed the case to the United States District Court for the Eastern District of Kentucky, which dismissed the civil suit because Kennedy's criminal case was unresolved. On June 18, 2007, the criminal case was dismissed, and Kennedy again sued the City and Schutzman in his individual capacity in Kenton Circuit Court. Kennedy alleged wrongful arrest under the Fourth Amendment, retaliatory arrest in violation of the First Amendment, ¹ violations of the Eighth and Fourteenth Amendments, and several state-law torts: false arrest/imprisonment, intentional infliction of severe emotional distress, malicious prosecution, defamation (libel and slander), and abuse of process. The defendants once again removed the case to the United States District Court for the Eastern District of Kentucky.

The district court granted summary judgment to the City because a municipality is not liable for the actions of an employee if the employee had no “history of illegal or retaliatory arrests” and the municipality had no reason to suspect that “allowing a police officer to serve as a building inspector would lead to the violation of its citizens' constitutional rights.” R. 28 (Dist. Ct. Op. at 7). Schutzman sought summary judgment on the basis of qualified immunity, which the district court denied. With respect to the claim of Fourth Amendment wrongful arrest, the district court reasoned that a jury should resolve the factual dispute about the volume of Kennedy's outburst. With respect to the claim of First Amendment retaliation, the district court identified a question of fact concerning Schutzman's reason for arresting Kennedy. The arrest may have been “motivated by the[ ] history” of conflict between the two men or “by the content—not the volume—of the speech in question,” in which case the arrest was retaliatory and unconstitutional. Id. at 13–16. The district court disposed of the remaining state-law and federal constitutional claims on their merits.

Schutzman, the only remaining defendant, has appealed the denial of qualified immunity. Pursuant to the collateral-order doctrine, the district court's denial of qualified immunity to Schutzman is a final order over which this court has appellate jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “Interlocutory review is permitted where a defendant argues merely that his alleged conduct did not violate clearly established law.... This is a legal question and is independent from the question of whether there are triable issues of fact.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir.2009).

II. ANALYSIS

We “review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law. But to the extent that there is disagreement about the facts, ... we must review the evidence in the light most favorable to the Plaintiff, taking all inferences in his favor.” Swiecicki v. Delgado, 463 F.3d 489, 497 (6th Cir.2006) (internal citations, quotation marks, and alteration marks removed; ellipses in original), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Kennedy bears the burden “to show that [Schutzman] is not entitled to qualified immunity.” Id. at 498.

“In civil damage actions arising out of government officials' performance of discretionary functions, the officials are generally entitled to qualified immunity from suit ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Greene v. Barber, 310 F.3d 889, 894 (6th Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Pearson v. Callahan recently restated the test for determining whether an official is entitled to qualified immunity. 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was ‘clearly established’ at the time of [the] defendant's alleged misconduct.” Id. at 815–16 (internal citations omitted). After Pearson, courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818.

A. Fourth Amendment Claim of Wrongful Arrest²

For purposes of this appeal, Schutzman concedes that a genuine issue of material fact exists about the amount of noise that Kennedy made, and therefore whether Schutzman violated Kennedy's constitutional right to be free from wrongful arrest. At stake is the second question: whether Kennedy's constitutional right to be free from wrongful arrest in these circumstances was clearly established such that Schutzman should have known of it. We conclude that Kennedy's right was clearly established.

“[A]n arresting agent is entitled to qualified immunity if he or she could reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly established law and the information possessed at the time by the arresting agent.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir.), cert. denied, 554 U.S. 903, 128 S.Ct. 2938, ...