Kennedy v. City of Cincinnati

• Decision Date: 16 February 2010
• Docket Number: No. 09-3089.,09-3089.
• Citation: 595 F.3d 327
• Parties: Robert KENNEDY, Plaintiff-Appellee, v. CITY OF CINCINNATI, et al., Defendants, Jeffrey Zucker, Police Officer; David Hudepohl, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

595 F.3d 327

Robert KENNEDY, Plaintiff-Appellee, v. CITY OF CINCINNATI, et al., Defendants Jeffrey Zucker, Police Officer; David Hudepohl, Defendants-Appellants.

No. 09-3089.

United States Court of Appeals, Sixth Circuit.

Argued: December 3, 2009.

Decided and Filed: February 16, 2010.

ARGUED:

Peter J. Stackpole, City Of Cincinnati, Office of City Solicitor, Cincinnati,

Ohio, for Appellants. Steven F. Stuhlbarg, Law Office, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Peter J. Stackpole, City of Cincinnati, Office of City Solicitor, Cincinnati, Ohio, for Appellants. Steven F. Stuhlbarg, Law Office, Cincinnati, Ohio, for Appellee.

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Defendants Jeffrey Zucker and David Hudepohl appeal the denial of their motion for summary judgment based on the defense of qualified immunity from plaintiff Robert Kennedy's procedural due process claims brought under 42 U.S.C. § 1983. For the reasons that follow, we reverse in part and affirm in part. In doing so, we hold that Kennedy did not have a protectable property interest in his $10 City pool token, but possessed a clearly established constitutionally-protected liberty interest not to be banned from all City recreational property without procedural due process.

I.

The City of Cincinnati, through the Cincinnati Recreation Commission ("CRC"), operates swimming pools and recreation facilities. "Recreation programs and facilities are open to all citizens regardless of race, gender, color, religion, nationality, sexual orientation or disability." (alteration in emphasis.) The City offers access to its swimming pools by issuing pool tokens, which cost $10. Pool tokens, however, are not issued automatically. The City retains "discretion to refuse to issue a token depending on circumstances[,]" and must refuse to issue a pool token for the following seven reasons:

[1.] The City may not issue a token to a person suspected of having an infectious or communicable disease.

[2.] The City may not issue a token to a person with head lice or ringworm.

[3.] The City may not issue a token to a person with an obvious infectious wound.

[4.] The City may not issue a token to a sex offender.

[5.] The City may not issue a token to a known violent or dangerous person.

[6.] The City may not issue a token to persons known to have violated pool rules in the past.

[7.] The City may not issue a token to a person who is obviously high or intoxicated.

When a pool token is issued, the new member completes and signs a membership card, which states:

I agree to follow the rules and policies and procedures of the Cincinnati Recreation Commission. I understand that my membership may be revoked without a refund if I do not follow the rules.

"[M]embership card[s][are] kept at the pool where the new member purchased the token" and "contain[] the identifying number of the token that was purchased." The tokens are not transferable and may not be used by more than one person.

The CRC's rules, policies, and procedures in effect during the relevant time period are contained in the CRC Aquatic Division Program Brochure 2007. The rules provide that the CRC "has the responsibility to provide a clean, pleasant, and safe environment for public swimming." Because "[s]ituations may occur that require immediate corrective action[,]" the CRC grants lifeguards "full authority to act in order to ensure the safety of swimmers." The Brochure also contains a list of "General Facility Rules," including the following: "Only adults supervising children are permitted inside [the] pool area wearing street clothes, and should remain back near the fence, not up by the pool."

During 2007, Jeff Brokamp was the principal of Mt. Washington Elementary School, which is located next to Mt. Washington pool. For two days in "April or May" of 2007, Kennedy allegedly was "staring" at children at the elementary school during a field day. The children and teachers felt "uncomfortable" with Kennedy "standing very close" to them. Therefore, the teachers sent two students into the school building to inform Brokamp of the situation and their discomfort. Brokamp followed the students into the field, watched Kennedy for a "few seconds[,]" and then approached and introduced himself. Brokamp spoke with Kennedy for a "few minutes" and asked him to move away from where the children were playing. Kennedy subsequently left the area.

Ann Couzins was the pool manager for Mt. Washington pool in 2007. According to Couzins, Mark Celsor, the director of the Mt. Washington Recreation Center, had asked her to "keep an eye on" Kennedy even before he joined the pool because of the incident that occurred at Mt. Washington Elementary School. This request was also made by pool supervisor and defendant David Hudepohl, who asked Couzins "to go ahead and keep an eye on him" and to maintain a log of Kennedy's actions. Couzins testified that for "four or five days in a row" she saw Kennedy "just standing outside the gate watching the pool and looking at the kids." She described his behavior as "a little bit strange."

In June 2007, Kennedy purchased a pool token from the CRC for $10. During June, Kennedy frequently used the pool token to visit the CRC operated pool in the neighborhood of Mt. Washington. As instructed, Couzins kept a record of the pool staff's observations of Kennedy. Couzins did not personally see Kennedy interacting with any of the children at the pool but noted the observations of the other lifeguards. She testified that "all" of the lifeguards "observed [Kennedy] ... at the pool watching the kids[,]" and that they "all felt uncomfortable around him[.]" Couzins specifically described how lifeguard Jenny Sallee saw Kennedy "trying to ... throw a ball with [a boy] or follow him into the woods[.]"¹ "[M]ultiple parents at the pool" also approached Couzins to communicate "that they felt uncomfortable with [Kennedy's] presence" at the pool.

On June 20, 2007, Kennedy watched a swim meet at the pool. Tamara Kluckman-Gory, a teacher at the Hamilton County Justice Center, noticed Kennedy observing the meet with a "fixed smile, fixed kind of a scary smile." Kluckman-Gory testified that mothers were concerned that Kennedy was staring at the children, and she had heard that there was worry that "somebody at the pool ... could be a pedophile[.]" She decided to "confront[]" Kennedy and walked over to speak with him. After exchanging pleasantries, Kluckman-Gory informed Kennedy that he was "kind of creeping some people out." Thereafter, Kennedy "mumbled something" and left the pool area.

On June 21, 2007, Kennedy arrived at the pool and sat on a bench approximately six feet from it. Kennedy was wearing a shirt, shorts, and sandals; he wore a swimsuit beneath his shorts. Hudepohl observed Kennedy reading a newspaper, but suspected he was actually watching children in the pool.

Hudepohl called his supervisor, Jincey Yemaya, who instructed Hudepohl to contact the police. Hudepohl called the police and asked that Kennedy be investigated "because he was removed from the playground for lurking and staring at young kids during recess and ... was seen by guards following children back into the woods."² Cincinnati Police Officers Christine Smith and Jeffrey Zucker arrived in the Mt. Washington School parking lot, where they were met by Hudepohl. Hudepohl informed the officers that: (1) Kennedy was wearing street clothes in violation of CRC rules and regulations;³ (2) he had been "lurking along the fence line" and not swimming in the pool area; (3) parents had expressed concerns regarding Kennedy's behavior; (4) the principal from Mt. Washington Elementary School had banned Kennedy from "Olympic day"; and (5) Kennedy had been seen at a swim meet, standing at the fence watching children.

Thereafter, the officers approached Kennedy in the pool area, accompanied by Hudepohl. Zucker questioned Kennedy for approximately fifteen minutes, during which time Zucker informed him that the officers were there "as a precaution" because people were concerned Kennedy was "child watching." While Zucker spoke with Kennedy, Smith queried her computer to check whether Kennedy had any outstanding warrants or whether he was listed as a sexual predator in Hamilton County. From her search, Smith determined that Kennedy was not listed as a sexual predator and had no current warrants. Zucker asked a few more questions regarding why Kennedy was at the pool, and then terminated his investigation because his "basis for any reasonable suspicion to stop Mr. Kennedy had ceased, because [he] had no crime that [he] could verify had been committed, nor could [he] identify one that [was] being committed or [was] going to be committed." The officers subsequently asked Hudepohl how he wanted to proceed.

Hudepohl informed the officers that Kennedy would be banned from Mt. Washington pool for the rest of the season, and that he would like the officers to retrieve the pool token from Kennedy. Thereafter, Zucker approached Kennedy and told him that Hudepohl, acting as an agent of CRC, was requesting that Kennedy surrender his pool pass. In addition, Zucker informed Kennedy that Hudepohl was barring him from "CRC property in Mt. Washington, i.e., the ball fields and the pool area, as well as Mt. Washington School."⁴ In response, Kennedy surrendered his pool pass and apparently left Mt. Washington pool without incident.

On February 14, 2008, Kennedy filed an amended complaint in the Southern District of Ohio, alleging that defendants Zucker, Hudepohl, and the City of Cincinnati violated his constitutional rights by confiscating his property, and by restricting his liberty, without due process of law.⁵ In addition, Kennedy pleaded a state law claim of defamation, contending that Hudepohl defamed him by falsely implying that he had engaged in serious sexual misconduct. On October 16, 2008, defendants...