Leonard v. Robinson

• Decision Date: 02 February 2007
• Docket Number: No. 05-1728.,05-1728.
• Citation: 477 F.3d 347
• Parties: Thomas LEONARD, Plaintiff-Appellant, v. Stephen ROBINSON, in his individual capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

477 F.3d 347

Thomas LEONARD, Plaintiff-Appellant, v. Stephen ROBINSON, in his individual capacity, Defendant-Appellee.

No. 05-1728.

United States Court of Appeals, Sixth Circuit.

Argued: June 2, 2006.

Decided and Filed: February 2, 2007.

ARGUED:

Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant. Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee.

ON BRIEF:

Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant.

Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee.

Before: BOGGS, Chief Judge; and KEITH and SUTTON, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which KEITH, J., joined. SUTTON, J. (pp. 363-68), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Chief Judge.

Thomas Leonard appeals the judgment of the district court granting summary judgment to the defendant, Stephen Robinson, in this civil rights action resulting from Leonard's arrest at a township board meeting. The district court dismissed the case, holding that Robinson was entitled to qualified immunity on claims for wrongful arrest and that Leonard could not make out a prima facie case on his claim for First Amendment retaliation in violation of his civil rights. We reverse both holdings. The district court's application of state law to Leonard's conduct overlooked the First Amendment and its evaluation of Leonard's retaliation claim ignored evidence indicating that Robinson did have an improper motive. We hold that 1) no reasonable officer would have found probable cause to arrest Leonard solely for uttering "God damn" while addressing the township board because the First Amendment protects this sort of uninhibited debate, and 2) Leonard's retaliation claim survives summary judgment because Robinson's motive for the arrest is a genuine issue of material fact in dispute.

I

This case presents the question of whether an arrest for obscenity, vulgarity, or disturbing the peace, when based upon speech and not conduct, is valid when it occurs during a democratic assembly where there is no evidence that the individual arrested was out of order and some evidence of improper motive by the arresting officer. With due regard to the procedural disposition of the case, the facts are here recounted in the light most favorable to Leonard.

Leonard's wife Sarah operates a towing company called Leonard's Auto Works. Auto Works was the exclusive towing company for the township of Montrose, Michigan until around 2000. At that time, the Montrose Township Chief of Police, Charles Abraham, was promoting his own plan with the city board to extend township police jurisdiction to include the city of Montrose as well as the surrounding township. Agnes Johnson, Sarah Leonard's mother, was a member of the City Council and opposed Abraham's plan. Abraham asked Sarah to lobby her mother in support of the plan. In return, he offered, Auto Works could continue to tow for the Township. When Sarah refused, Auto Works lost its business with the Township. Sarah sued the Township and Chief Abraham in Genesee County Circuit Court under 42 U.S.C. § 1983 for violating her First Amendment rights. The case was removed to federal court and settled in February 2003. Leonard v. Montrose, No. 02-71084 (E.D.Mich. Feb. 11, 2003) (stipulation dismissing case). As a result of the lawsuit, according to Leonard, Chief Abraham hated him and his wife.

Before the settlement, on October 15, 2002, Thomas, Sarah, and their child attended a Township Board meeting. Officer Robinson testified that he was ordered by Chief Abraham to attend the meeting. Thomas Leonard believes that Abraham ordered Robinson to attend so that he might arrest Sarah in retaliation for her suit against him. Much of the meeting was recorded on videotape. When he arrived, Robinson took his seat at the back of the meeting hall because he "do[esn't] really like anyone behind [him]." Near the beginning of the meeting, Robinson was asked by another attendee why he, a police officer, was present. Robinson lied in response—he did not disclose that the Chief had ordered him to attend. Instead, he said, "I'd like to see what's going on."

Later in the meeting, during the portion known as Citizen Time, Sarah addressed the council about the actions the Township had taken that had affected her business: Auto Works was not selected for several police car repair contracts, even though it was the low bidder, and Auto Works was no longer called to tow wrecked municipal vehicles. When she finished, Thomas Leonard was recognized by the Township Supervisor, Don Papineau. Thomas arose and spoke:

LEONARD: It's not right and you guys know it. We want an answer. We're sick and tired of getting screwed. You guys are screwing us and we know it. We're sitting, the attorneys are sitting here, he hasn't read about it, nobody knows nothing about it. I'm sick of it.

PAPINEAU: I, I disagree that we screwed Leonard's [Auto Works] or—

LEONARD: You do? Do it right now.

PAPINEAU: Yes, sir, I do.

LEONARD: (inaudible)

PAPINEAU: I disagree with that.

LEONARD: Well, that's good. That's why you're in a God damn lawsuit —

Thomas then sat down. After he had taken his seat, Papineau said, "Hey, do not use the Lord's name in vain." Leonard responded, "I'll do whatever I want, Don, just like you." At that point, Officer Robinson entered the conversation:

ROBINSON: (inaudible)

LEONARD: You stay out of it. I'm not talking to you.

ROBINSON: (inaudible)

LEONARD: No, you come in here, you come here —

ROBINSON: No, I come here as a police officer.

LEONARD: No, you didn't. Don't give me a hard time.

ROBINSON: If I'm going to (inaudible) I'm going to take you with me.

LEONARD: I'm ready to go, so, let's go.

Robinson took Leonard outside the meeting room and placed him under arrest. Leonard was transported to the police station and charged with violations of Michigan Compiled Laws §§ 750.167 (disorderly person) and 750.337 (obscenity). He was released after a one-hour detention. One month later the citation was voided and dismissed.

On June 6, 2003, Leonard filed this action against Robinson in his personal capacity in the United States District Court for the Eastern District of Michigan, alleging that Robinson, under color of law, violated his Fourth Amendment right to be free of unreasonable seizure. The complain also raised three state law torts: battery, false arrest, and false imprisonment. Robinson filed a motion for summary judgment on November 20, 2003. He argued that he was entitled to qualified immunity on the constitutional allegations and that the state law claims must be dismissed because the arrest was supported by probable cause. To bolster this claim, Robinson cited two additional Michigan statutes that Leonard may have violated, Michigan Compiled Laws §§ 750.103 (cursing and swearing) and 750.170 (disturbance of lawful meetings). Leonard filed a response to the motion, defending his claims under a First Amendment retaliation theory and generally asserting the same grounds he does here on appeal.

On May 4, 2005, the district court granted the motion for summary judgment and dismissed the case. Leonard v. Robinson, No. 03-72199, slip op. at 26 (E.D.Mich.) [hereinafter D. Ct. Op.]. The district court held that Robinson did not violate the Fourth Amendment because he had probable cause to arrest Leonard. Id. at 7. The court declined to exercise supplemental jurisdiction over the state law claims. D. Ct. Op. at 27 n. 17. The court found that even though Michigan Compiled Laws § 750.337 (criminalizing indecent language in the presence of women or children) had been invalidated by the Michigan Supreme Court, other statutes, criminalizing conduct for which Leonard had not been charged, supported the arrest, viz., §§ 750.103 (swearing), 750.170 (disturbing a meeting), and 750.167 (disorderly person). Therefore, based upon these statutes, Robinson had probable cause to arrest Leonard because he had violated the plain language of those statutes and Robinson was "to enforce laws until and unless they are declared unconstitutional." D. Ct. Op. at 12. See also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (holding that an officer's subjective reason for making an arrest need not include the criminal offense that later establishes probable cause).

The district court denied Leonard's First Amendment retaliation claim by holding that there was no "causal connection between Plaintiff's protected speech and his arrest." D. Ct. Op. at 25. The court held that our precedents "recognize[] a permissible inference of retaliatory motive in only a particular category of cases: namely, those cases where all of the possible grounds for arrest arise solely during the course of a citizen's encounter with a police officer." Id. at 23 (citing McCurdy v. Montgomery County, 240 F.3d 512 (6th Cir.2001) and Greene v. Barber, 310 F.3d 889 (6th Cir.2002)). The court refused to make reasonable inferences favorable to Leonard's claims. Instead, it ignored his allegations regarding Robinson's motive for the arrest, the previous lawsuit by Leonard's wife, and Robinson's inconsistent statements and held that "there is absolutely no evidence of any improper motive." D. Ct. Op. at 22. The district court concluded that it was illegal to "use[] objectionable language and become[] somewhat belligerent during a public meeting," id. at 27, and that Leonard should have just calmed down and not made a federal case of it.

II

We review a grant of summary judgment on qualified immunity grounds de novo "because application of this doctrine is a question of law." McCloud v. Testa, 227 F.3d 424, 428 (6th Cir.2000) (internal quotation and citations omitted). See also Armstrong v. City of Melvindale, 432 F.3d 695, 698 (6th Cir.2006). Summary judgment is appropriate where "the pleadings,...