Filed: Aug. 13, 2008
Latest Update: Mar. 02, 2020
Summary: NOT RECOMMENDED FOR PUBLICATION File Name: 08a0492n.06 Filed: August 13, 2008 NO. 07-3483 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT KINKUS, Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT VILLAGE OF YORKVILLE, OHIO, COURT FOR THE SOUTHERN DISTRICT OF OHIO Defendant, and GARY ANDERSON; JAMES POPP Defendants-Appellants. _/ BEFORE: SUHRHEINRICH, CLAY, and COOK, Circuit Judges. SUHRHEINRICH, Circuit Judge. Defendants James Popp and Gary Anderson appeal from the dis
Summary: NOT RECOMMENDED FOR PUBLICATION File Name: 08a0492n.06 Filed: August 13, 2008 NO. 07-3483 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT KINKUS, Plaintiff-Appellee, v. ON APPEAL FROM THE UNITED STATES DISTRICT VILLAGE OF YORKVILLE, OHIO, COURT FOR THE SOUTHERN DISTRICT OF OHIO Defendant, and GARY ANDERSON; JAMES POPP Defendants-Appellants. _/ BEFORE: SUHRHEINRICH, CLAY, and COOK, Circuit Judges. SUHRHEINRICH, Circuit Judge. Defendants James Popp and Gary Anderson appeal from the dist..
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NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0492n.06
Filed: August 13, 2008
NO. 07-3483
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT KINKUS,
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
VILLAGE OF YORKVILLE, OHIO, COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Defendant,
and
GARY ANDERSON; JAMES POPP
Defendants-Appellants.
__________________________________/
BEFORE: SUHRHEINRICH, CLAY, and COOK, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Defendants James Popp and Gary Anderson appeal
from the district court’s denial of qualified immunity in this § 1983 action brought by Robert Kinkus.
The Village of Yorkville, Ohio also appeals the district court’s grant of summary judgment for
Kinkus on his municipal liability claim. For the reasons that follow, we reverse, and dismiss
Kinkus’s constitutional claims.
I. BACKGROUND
A. Facts
Yorkville is a village in the Ohio Valley with a population of about 1,200 people. At the
time of the relevant events in this case, Plaintiff Robert Kinkus (“Kinkus”) was a member of the
Yorkville Village Council and the assistant fire chief for the Yorkville Fire Department.
Kinkus was an outspoken critic of Defendant Gary Anderson (“Anderson”), Yorkville’s chief
of police, and had publicly criticized Anderson at council meetings. In particular, Anderson
criticized the Yorkville Police Department’s arrest and alleged assault of three young men, one of
whom was Kinkus’s grandson. Anderson was aware of Kinkus’s comments.
The facts giving rise to the incident in question occurred on September 18, 2004, when
weather conditions caused a flood in Yorkville. Many of Yorkville’s streets were closed to traffic
due to rising floodwaters, including Fayette Street, on which Kinkus’s residence was located. On
that day Defendant James Popp (“Popp”), a Yorkville police officer, and Yorkville fireman Jim
Bailey (“Bailey”) agreed to temporarily remove some barricades blocking Fayette Street, so that a
Yorkville resident could move her vehicle from her home. After they moved the barricades, Popp
and Bailey observed a white jeep, contrary to the barricades, park in the middle of Fayette street
directly in front of Kinkus’s residence. They decided to walk toward the jeep to determine why it
was blocking the street, and encountered Kinkus as they came near the jeep.
Kinkus claims Popp first asked how long the jeep was going to be parked in the middle of
the street. Kinkus replied that the jeep would remain parked there “[u]ntil the freaking water goes
down.” Kinkus told Bailey that his daughter stopped at the firehouse to request help during the
flood, and was told “nobody could help because they were busy.” He then said:
I’ve been here for seven or eight hours, the fire truck has been running up and down
the street, doing nothing, the guys are standing in front of the city building, and I
can’t get no help. . . . [T]he best thing for you guys to do is to get the hell back up
town, period.
At that point, Kinkus contends that the conversation ended and Popp and Bailey departed. Kinkus
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admitted that he was upset about cars driving across the street, but claims that he did not use any
profanity during the course of the conversation.1 The parties dispute whether Popp requested that
Kinkus move the jeep from its parked location. There is no dispute, however, that Kinkus did not
move the jeep from the street after his conversation with Popp.
No charges were brought against Kinkus on the day of the flood. Popp subsequently
discussed the altercation with Yorkville’s chief of police, Defendant Anderson. Anderson asked
Popp why he had not filed charges, and Popp explained that he was afraid of losing his job as a result
of Kinkus’s threats. Anderson assured Popp that his job was secure and described the procedure for
bringing charges. Popp completed a police report, to which a written statement from Bailey was
included, and signed a criminal complaint form in blank. In filling out the complaint, Popp left
blank the portion of the form specifying the particular charge. These materials were sent to Assistant
Belmont County Prosecutor William Thomas (“Prosecutor Thomas”) for his review.
The prosecutor issued a criminal complaint against Kinkus, and filed it on October 21, 2004,
in the Belmont County Court, charging Kinkus with disorderly conduct under Ohio Rev. Code §
2917.11(A)(2) for his actions on the day of the flood. This provision of Ohio’s disorderly conduct
law provides that “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another
by . . . [m]aking unreasonable noise or an offensively coarse utterance, gesture, or display or
communicating unwarranted and grossly abusive language to any person.” Ohio Rev. Code §
2917.11(A)(2). Disorderly conduct is a “misdemeanor of the fourth degree” when “committed in
1
Kinkus’s contention that he did not use profanity is contradicted by the factual findings
of the trial court judge at Kinkus’s state court trial for disorderly conduct. The judge found that
Kinkus did use profanity during the course of the verbal exchange.
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the presence of any law enforcement officer.” Ohio Rev. Code § 2917.11(E)(2), (E)(3)(c).2 Kinkus
was presented with a criminal summons, and was not arrested or jailed as a result of the criminal
complaint.3
The case proceeded to a bench trial in the Northern Division County Court of Belmont
County, Ohio, and Kinkus was acquitted of the disorderly conduct charge. In its decision dismissing
the case, the court found that on the day of the flood, Kinkus was acting in his private capacity–rather
than official capacity–as an assistant fire chief and Yorkville councilperson. The court further found
that Kinkus “parked on the road, used vulgarity addressed to [Popp] who was simply trying to help
the situation, questioned [Popp] if he had a ‘f___ing’ problem, advised [Popp] that this was “my god
damn street,” and admitted that his actions were to protect his own home and not necessarily the
community itself or at large.” The court found, however, that because Kinkus’s words did not
constitute “fighting words,” the court could “not find the evidence sufficient in this case beyond a
reasonable doubt that [Kinkus] has committed a criminal act.”
B. Procedural History
On October 11, 2005, Kinkus filed suit under 42 U.S.C. § 1983 against Popp, Anderson, and
Yorkville. Kinkus’s complaint raised claims of Fourth Amendment malicious prosecution against
Popp, First Amendment retaliatory prosecution against Popp and Anderson, and a municipal liability
2
A fourth-degree misdemeanor carries a potential jail term of up to thirty days and a fine
of up to $250.00. Ohio Rev. Code §§ 2929.24(A)(4); 2929.28(A)(2)(a)(iv).
3
Because the disorderly conduct charge was a misdemeanor, a grand jury was not required
to pass judgment on whether there was probable cause to charge. See City of Cleveland Heights
v. Perryman,
457 N.E.2d 926, 930 (Ohio Ct. App. 1983) (“[A] misdemeanor complaint can be
issued by a prosecutor or a law enforcement officer without grand jury involvement.”).
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claim against Yorkville.4
On January 10, 2006, Kinkus moved for partial summary judgment against Popp on his First
Amendment retaliation claim and Fourth Amendment malicious prosecution claim. The district
court granted the motion, finding that: (1) Popp filed a disorderly conduct charge against Kinkus
without probable cause; (2) Prosecutor Thomas’s independent decision to prosecute Kinkus was not
conclusive evidence of probable cause; and (3) Kinkus’s statements toward Popp on the day of the
flood were protected by the First Amendment because they did not rise to the level of “fighting
words.” Kinkus v. Village of Yorkville,
453 F. Supp. 2d 1009 (S.D. Ohio 2006). The district court
did not, however, resolve the issue of whether Popp and Anderson acted with retaliatory intent when
they caused Kinkus to be prosecuted. The Defendants’ motion for reconsideration was denied.
Kinkus v. Village of Yorkville, No. C2-05-930,
2007 WL 539535 (S.D. Ohio Feb. 15, 2007).
Kinkus moved for summary judgment against Popp and Anderson on his retaliation claim
and against Yorkville on the municipal liability claim. Popp and Anderson moved for summary
judgment, arguing that they were entitled to qualified immunity, and Yorkville moved for summary
judgment on the municipal liability claim.
On March 13, 2007, the district court: (1) denied Popp’s and Anderson’s motions for
qualified immunity on the retaliation claims; (2) granted summary judgment for Kinkus on the
retaliation claim against Anderson; (3) denied Kinkus summary judgment on his retaliation claim
against Popp; (4) denied Yorkville’s motion for summary judgment on the municipal liability claim;
4
Kinkus also alleged that the acts of the Defendants “constituted an unlawful civil
conspiracy to violate [his] rights.” The district court docket indicates that on March 16, 2007,
Kinkus moved for the dismissal of his civil conspiracy claim without prejudice. The parties have
not addressed this claim on appeal.
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and (5) granted summary judgment for Kinkus on the municipal liability claim. Kinkus v. Village
of Yorkville,
476 F. Supp. 2d 829 (S.D. Ohio 2007).
II. ANALYSIS
On appeal, Popp and Anderson argue that the district court erred in denying them qualified
immunity, and in granting Kinkus summary judgment on his municipal liability claim.
We review a district court’s denial of qualified immunity de novo. Gregory v. City of
Louisville,
444 F.3d 725, 742 (6th Cir. 2005). We analyze claims of qualified immunity using a
three-part test, which requires us to determine: (1) whether a constitutional right was violated; (2)
whether that right was clearly established and one of which a reasonable person would have known;
and (3) whether the official’s action was objectively unreasonable under the circumstances. Williams
v. Mehra,
186 F.3d 685, 691 (6th Cir. 1999) (en banc). Summary judgment is granted when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A. Fourth Amendment Malicious Prosecution Claim against Popp
Popp argues he should have been granted qualified immunity on the malicious prosecution
claim because there was no Fourth Amendment violation. We agree, because Popp did not make
the decision to charge Kinkus, and there is no proof in the record that Kinkus presented false
information to the prosecutor.
This Court has held that a police officer cannot be liable for Fourth Amendment malicious
prosecution when he did not make the decision to bring charges, as long as the information he
submitted to the prosecutor is truthful. See Skousen v. Brighton High Sch.,
305 F.3d 520, 529 (6th
-6-
Cir. 2002) (holding that a police officer “cannot be held liable for malicious prosecution when he did
not make the decision to prosecute [the plaintiff]”); see also McKinley v. City of Mansfield,
404 F.3d
418, 444 (6th Cir. 2005) (“Skousen, in which the plaintiff alleged that a police officer had falsely
accused her, clearly forecloses a malicious prosecution claim based solely on officers’ turning over
evidence to the prosecuting authorities.”).
Popp had no role in choosing to prosecute Kinkus. Prior to Prosecutor Thomas’s charging
decision, Popp’s actions consisted only of completing a police report, signing a blank criminal
complaint form that did not recommend any particular charge, and soliciting a written report from
Bailey. These documents were ultimately forwarded to Prosecutor Thomas for his discretionary
review of the evidence and charging discretion. No evidence suggests Popp ever consulted with or
pressured Prosecutor Thomas to file charges.5
Moreover, Popp’s police report did not contain false information. The police report stated that
Kinkus yelled and directed vulgarities at Popp and Bailey as they sought to inquire as to why the jeep
was completely blocking Fayette Street. These facts were substantiated by the factual findings of the
trial judge at Kinkus’s criminal trial, which are subject to collateral estoppel. See Fridley v. Horrighs,
291 F.3d 867, 875 (6th Cir. 2002) (providing that collateral estoppel applies when “the law of
collateral estoppel in the state in which the issue was litigated would preclude relitigation of such
5
The facts of Skousen are substantially similar. In Skousen, the plaintiff was charged
and acquitted of domestic assault, and later filed a § 1983 claim alleging Fourth Amendment
malicious prosecution against the investigating officer. The actions of the police officer
defendant consisted of completing a police report detailing his investigation of an alleged assault
involving the plaintiff, and then submitting the police report and a medical report to the
prosecutor’s office.
Skousen, 305 F.3d at 525. We found that the plaintiff’s malicious
prosecution claim failed because she “offered no evidence . . . supporting her claim that [the
defendant] caused her to be prosecuted,” and there was “no evidence that [the defendant] made
or even was consulted with regard to the decision to prosecute [the plaintiff].”
Id. at 529.
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issue, and [] the issue was fully and fairly litigated in state court”). The facts surrounding the incident
were fully and fairly litigated in the state criminal proceeding, and among the witnesses who testified
were Popp, Bailey, and Kinkus. Furthermore, the facts concerning Kinkus’s speech on the day of the
flood were necessary to the state court’s determination of whether Kinkus committed disorderly
conduct. See Bentley v. Grange Mut. Cas. Ins. Co.,
694 N.E.2d 526, 530 (Ohio Ct. App. 1997)
(providing that under Ohio law, collateral estoppel applies to facts that: “(1) [were] actually and
directly litigated in the prior action, (2) [were] passed upon and determined by a court of competent
jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity
with a party to the prior action”).
Thus, Kinkus cannot contest the accuracy of Popp’s police report which served as the basis
for Prosecutor Thomas’s decision to bring the disorderly conduct charge. Since Popp supplied only
truthful information to Prosecutor Thomas, he cannot be subject to a malicious prosecution claim.
See
McKinley, 404 F.3d at 444 (holding that the defendant could not be liable for malicious
prosecution where the plaintiff “present[ed] no evidence suggesting that defendants conspired with,
influenced, or even participated in, [the prosecutor]’s decision to bring charges against him”); Darrah
v. City of Oak Park,
255 F.3d 301, 312 (6th Cir. 2001) (dismissing the plaintiff’s contention that the
defendant police officer caused the state court to find probable cause because “based on the facts
alleged by [the plaintiff] and the information in the police report, there is no indication that [the
defendant]’s report misled the court in any way”)
Accordingly, the district court erred in denying Popp qualified immunity on the malicious
prosecution claim and granting summary judgment for Kinkus on that claim.
B. First Amendment Retaliatory Prosecution Claim against Popp and Anderson
-8-
Popp and Anderson argue they should have been granted qualified immunity on the First
Amendment retaliatory prosecution claims because there was not a constitutional violation. We
agree.
An essential element of a First Amendment retaliatory prosecution claim is retaliatory animus.
See Hartman v. Moore,
547 U.S. 250, 260 (2006) (providing that “the plaintiff in a
retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury”);
Bloch v. Ribar,
156 F.3d 673, 678 (6th Cir. 1998) (providing that a plaintiff must prove in a First
Amendment retaliation claim that “the adverse action was motivated at least in part as a response to
the exercise of the plaintiff's constitutional rights”).6 Here, Kinkus clearly cannot succeed in proving
the animus element as to either Popp or Anderson. As previously explained, there can be no animus
under McKinley. See
McKinley, 404 F.3d at 444.
With respect to Popp, there can be no animus because the allegations in his police report were
true, and we are collaterally estopped from reaching any different conclusion. Contrary to the district
court’s conclusion, the one-month lapse between the incident and the disorderly conduct charge does
not suggest animus. There is not a shred of evidence in the record to support the district court’s
speculation that Anderson “could have relayed to [] Popp the various disparaging comments that
[Kinkus] made regarding the Yorkville police.”
Kinkus, 476 F. Supp. 2d at 838. Such speculation
does not allow Kinkus to avoid summary judgment.
6
To prove a First Amendment retaliation claim, a plaintiff must also demonstrate that he
was engaged in a constitutionally protected activity and that an adverse action caused him to
suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in
that activity.
Bloch, 156 F.3d at 678. In a First Amendment retaliatory prosecution claim, a
plaintiff must prove “want of probable cause.”
Hartman, 547 U.S. at 265; see also Barnes v.
Wright,
449 F.3d 709, 719 (6th Cir. 2006).
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As for Anderson, there is no animus because there is no evidence in the record that he ordered
or ever suggested that Popp lie in the police report. Thus, contrary to the district court’s conclusion,
it is immaterial that Anderson testified that the charges were brought against Kinkus “only in part”
because of statements he made previously regarding the Yorkville Police Department. There is no
evidence in the record that he instructed Popp to lie. And, again, a state court trial judge found that
the information Popp provided to the prosecutor was true.
Accordingly, the district court erred in denying Popp and Anderson qualified immunity on the
retaliatory prosecution claim and granting summary judgment for Kinkus on his claim against
Anderson, because no First Amendment violation lies under Kinkus’s version of the facts. See
Saucier v. Katz,
533 U.S. 194, 201 (“If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified immunity.”).
C. Municipal Liability Claim against Yorkville
Defendants request that we exercise “pendent appellate jurisdiction” to dismiss the municipal
liability issues. We do, because absent any constitutional violation, there can be no municipal
liability. See Brennan v. Twp. of Northville,
78 F.3d 1152, 1158 (6th Cir. 1996).7 Furthermore, even
7
The dissent asserts that we cannot entertain the municipal liability claim. However,
Yorkville gave notice that it is a party to the appeal, given that Yorkville is listed as a party in the
caption of the notice of appeal. See Fed. R. App. P. 3(c)(1)(A) (providing that a party’s notice of
its intent to take the appeal is sufficient if the party is named “in the caption or body of the
notice”). Second, the notice of appeal “designate[d] the judgment . . . being appealed” under
Fed. R. App. P. 3(c)(1)(B) by referencing the district court’s March 13, 2007 final judgment. In
that decision, the district court, inter alia, granted summary judgment for Kinkus on the
municipal liability claim.
Further, in ruling on the municipal liability claim we avoid the needless waste of judicial
resources by holding that there can be no municipal liability absent an actual constitutional
violation at the hands of either Popp or Anderson. See City of Los Angeles v. Heller,
475 U.S.
796, 799 (1986) (“If a person has suffered no constitutional injury at the hands of [an] individual
-10-
if there had been a constitutional violation, there was no custom or policy, because, in the first place,
Prosecutor Thomas–not Anderson–made the decision to prosecute Kinkus. Yorkville cannot be held
liable under a theory of vicarious liability. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691
(1978) (holding that a municipality cannot be liable on a respondeat superior theory).
Accordingly, the district court erred in denying Yorkville summary judgment on the municipal
liability claim and granting summary judgment for Kinkus on that claim.
III. CONCLUSION
For the reasons stated above, we REVERSE the district court’s denial of qualified
immunity to Popp on the malicious prosecution claim, REVERSE the district court’s denial of
qualified immunity to Popp and Anderson on the retaliation claims, REVERSE the district
court’s grant of summary judgment for Kinkus on his malicious prosecution claim against Popp
and his retaliatory prosecution claim against Anderson, REVERSE the district court’s grant of
summary judgment for Kinkus on Kinkus’s municipal liability claim against Yorkville, and
DISMISS Kinkus’s claims for malicious prosecution, retaliation, and municipal liability.
police officer, the fact that [municipal policy or custom] might have authorized [a constitutional
violation] is quite beside the point.”); Floyd v. City of Detroit,
518 F.3d 398, 411 (6th Cir. 2008)
(“Where a court determines that no violation of the plaintiff’s constitutional rights occurred,
obviously the governmental entity cannot be liable . . . for developing a [policy or] custom that
led to a constitutional violation.”).
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CLAY, Circuit Judge, dissenting. While I agree with the majority that there is
insufficient evidence in the record to support Plaintiff Robert Kinkus’ (“Kinkus”) Fourth
Amendment malicious prosecution claim, I do not share the majority’s view that Defendants,
James Popp (“Popp”) and Gary Anderson (“Anderson”), should have been granted qualified
immunity on Kinkus’ First Amendment retaliatory prosecution claim. I am also troubled by the
majority’s sua sponte decision to reverse the district court’s grant of summary judgment to Kinkus
on his municipal liability claim against the Village of Yorkville (the “Village”), given that we lack
jurisdiction to review this issue on appeal. Accordingly, I respectfully dissent.
I.
We review a district court’s denial of qualified immunity de novo. Logsdon v. Hains,
492
F.3d 334, 340 (6th Cir. 2007). Qualified immunity is an affirmative defense that shields
government officials performing discretionary functions “from liability for civil damages insofar
as their conduct does not violate clearly established federal statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982);
accord Dorsey v. Barber,
517 F.3d 389, 394 (6th Cir. 2008). To determine whether qualified
immunity applies for particular state officials, we employ a two-step analysis. See Scott v. Harris,
127 S. Ct. 1769, 1774 (2007). First, we must consider whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated
a constitutional right.” Saucier v. Katz,
533 U.S. 194, 201 (2001). “If no constitutional right
would have been violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.”
Id. However, “if a violation could be made out on a
favorable view of the parties’ submissions, the next, sequential step is to ask whether the right
-12-
was clearly established.”
Id. The ultimate focus of this second inquiry is to determine whether
the official “had fair notice that her conduct was unlawful.” Brosseau v. Haugen,
543 U.S. 194,
198 (2004) (per curiam); see also Champion v. Outlook Nashville, Inc.,
380 F.3d 893, 905 (6th
Cir. 2004) (requiring the plaintiff to provide “sufficient evidence to indicate that what the official
allegedly did was objectively unreasonable in light of clearly established constitutional rights”). If
the law at the time of the official’s conduct “did not clearly establish that the [official’s] conduct
would violate the Constitution, the [official] should not be subject to liability or, indeed, even the
burdens of litigation.”
Brosseau, 543 U.S. at 198.
Applying this qualified immunity framework to the facts of this case, I would find that
Popp and Anderson are not entitled to qualified immunity on Kinkus’ First Amendment
retaliatory prosecution claim. However, because there is a genuine issue of material fact
regarding whether Popp and Anderson had a retaliatory intent when filing their criminal complaint
against Kinkus, I would reverse the district court’s grant of summary judgment in favor of Kinkus
on this claim and remand the case for trial.
A.
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether
plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer,
536 U.S. 730,
736 (2002). Construing the facts in the light most favorable to Kinkus, I would find that he has
sufficiently alleged that Popp and Anderson violated his First Amendment rights by filing the
criminal complaint in retaliation for his vulgar comments to Popp on September 18, 2004 and his
prior criticism of the Yorkville Police Department.
To demonstrate a retaliatory prosecution in violation of the First Amendment, a plaintiff
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must establish that: (1) he or she engaged in constitutionally protected activity; (2) the defendant
brought criminal charges, for which there was an absence of probable cause, against the plaintiff;
and (3) the defendant’s criminal prosecution of the plaintiff was motivated, at least in part, as a
response to the plaintiff’s exercise of his or her constitutional rights. See Hartman v. Moore,
547
U.S. 250, 256 (2006); Center for Bio-Ethical Reform, Inc. v. City of Springboro,
477 F.3d 807,
821 (6th Cir. 2007); Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc); Bloch v.
Ribar,
156 F.3d 673, 678 (6th Cir. 1998). When viewed in the light most favorable to Kinkus, the
parties’ submissions establish each of these elements.
First, Kinkus’ vulgar comments to Popp on September 18, 2004 and his prior criticisms of
the Yorkville Police Department clearly constitute protected speech under the First Amendment.
It is well-established that “the First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.” City of Houston v. Hill,
482 U.S. 451, 461 (1987); see
also
id. at 462-63 (“The freedom of individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal characteristics by which we distinguish a free
nation from a police state.”); McCurdy v. Montgomery County,
240 F.3d 512, 520 (6th Cir. 2001)
(“Since the day the ink dried on the Bill of Rights, ‘[t]he right of an American citizen to criticize
public officials and policies . . . is central to the meaning of the First Amendment.” (quoting
Glasson v. City of Louisville,
518 F.2d 899, 904 (6th Cir. 1975))). This criticism need not be
polite and is protected even if it employs rude and vulgar language. See Cohen v. California,
403
U.S. 15, 25-26 (1971) (finding that a state cannot criminalize the use of the expression “fuck the
draft”); Barnes v. Wright,
449 F.3d 709, 718 (6th Cir. 2006) (finding that the plaintiff’s use of
“strong” language, including words such as “damn”, when confronted by police officers, was
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constitutionally protected speech); Greene v. Barber,
310 F.3d 889, 895-96 (6th Cir. 2002)
(finding that the plaintiff’s characterization of police officer as an “asshole” and “stupid” was
constitutionally protected speech);
McCurdy, 240 F.3d at 520 (finding it “well-established that
[the plaintiff had a constitutional right to challenge verbally” a police officer’s authority by telling
the officer that he didn’t have to do the “shit” that the officer was ordering him to do); Sandal v.
Larion,
119 F.3d 1250, 1255 (6th Cir. 1997) (finding that the plaintiff’s shouting of “fuck you” at
abortion protestors was constitutionally protected speech).
Second, the criminal complaint filed against Kinkus lacked any vestige of probable cause.
Probable cause for filing a criminal complaint only exists “if the facts and circumstances known
to the officer warrant a prudent man in believing that the offense has been committed.” Henry v.
United States,
361 U.S. 98, 102 (1959); accord Beck v. Ohio,
379 U.S. 89, 91 (1964); Brinegar v.
United States,
338 U.S. 160, 175-76 (1949);
Logsdon, 492 F.3d at 341. The criminal complaint in
this case charged Kinkus with violating Ohio Rev. Code § 2917.11(A)(2), by claiming that
Kinkus:
Did recklessly cause inconvenience, annoyance, or alarm to another by making
unreasonable noise or an offensively coarse utterance, gesture, or display or
communicating unwarranted and grossly abusive language to any person.
J.A. at 633. The Ohio Supreme Court, however, has clarified that Ohio Rev. Code §
2917.11(A)(2) only prohibits the use of “fighting words,” i.e., those which “are likely, by their
very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach
of the peace.” State v. Hoffman,
387 N.E.2d 239, 242 (Ohio 1979); accord State v. Dotson,
727
N.E.2d 957, 302-03 (Ohio Ct. App. 1999); see also Chaplinsky v. New Hampshire,
315 U.S. 568,
571-72 (1942) (establishing the now rather limited “fighting words” exception to the First
-15-
Amendment’s broad protection of speech). No reasonable person considering the facts known to
Popp and Anderson at the time they filed the criminal complaint would conclude that Kinkus’
abusive and vulgar comments constituted “fighting words.” Thus, as the state trial court
accurately concluded, there was no probable case to support the filing of the disorderly conduct
complaint against Kinkus.
Finally, unlike the majority,8 I find that the parties’ pleadings reasonably suggest that Popp
and Anderson filed the criminal complaint, at least in part, in retaliation for Kinkus’
constitutionally protected vulgar comments on September 18, 2004 and as possible retribution for
his prior criticism of the Yorkville Police Department. Indeed, the record reflects that both Popp
and Anderson were aware of and not happy about Kinkus’ prior criticisms of the police
department and about Kinkus’ disrespectful comments during the flooding emergency on
September 18, 2004. Moreover, the criminal complaint filed against Kinkus focused exclusively
upon Kinkus’ vulgar speech as the basis for the disorderly conduct charge. See J.A. at 633
(accusing Kinkus of “recklessly caus[ing] inconvenience, annoyance, or alarm to another by
making unreasonable noise or an offensively coarse utterance, gesture, or display or
communicating unwarranted and grossly abusive language to any person” (emphasis added)). In
light of this history between the parties and the criminal complaint’s targeting of Kinkus’
8
The majority’s analysis of this issue is misguided, particularly with respect to the
majority’s conclusion that there was no retaliatory animus on the part of Popp and Anderson
because the allegations in the criminal complaint are true. See Majority Op. at 10. Whether the
charges in the complaint are true is irrelevant to whether the complaint was filed for a retaliatory
purpose. Indeed, accepting the truth of the charges in the complaint only confirms that Popp and
Anderson were likely filing the complaint in retaliation for Kinkus’ vulgar comments on the
night of the flooding. That the complaint targets Kinkus’ offensive, but constitutionally
protected, speech does not undermine, but rather affirms Kinkus’ contention that the filing of the
complaint was motivated by his exercise of First Amendment rights.
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protected speech, I would find that Kinkus has alleged facts, which, if true, demonstrate a
violation of the First Amendment.
B.
The second question in the qualified immunity analysis is whether the rights allegedly
violated were clearly established at the time of Popp and Anderson’s conduct. See
Saucier, 533
U.S. at 201. “This inquiry, it is vital to note, must be undertaken in light of the specific context of
the case, not as a broad general proposition.” Id.; accord
Scott, 127 S. Ct. at 1774; see also
Wilson v. Layne,
526 U.S. 603, 615 (1999) (“[T]he right allegedly violated must be defined at the
appropriate level of specificity before a court can determine if it was clearly established.”). If the
area of law “is one in which the result depends very much on the facts of each case,” it is likely
that the right, considered in light of the specific context, will not be deemed “clearly established.”
Brosseau, 543 U.S. at 201. In other words, for a right to be clearly established “[t]he contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987); accord Feathers v.
Aey,
319 F.3d 843, 848 (6th Cir. 2003). “This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law the unlawfulness must be apparent.”
Anderson, 483
U.S. at 640.
In the instant case, I would find that the First Amendment rights allegedly violated by
Popp and Anderson were clearly established at the time of their conduct. The First Amendment
freedom to criticize police officials without fear of prosecution had been firmly established for
several years prior to the filing of the criminal complaint against Kinkus in 2004. See, e.g., Hill,
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482 U.S. at 461 (“[T]he First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.”); Terminello v. City of Chicago,
337 U.S. 1, 4 (1949) (“[A]
function of free speech under our system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. . . . That is why freedom of speech, though
not absolute, is nevertheless protected against censorship or punishment, unless it is shown likely
to produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.”);
McCurdy, 240 F.3d at 520 (“There can be no doubt that
the freedom to express disagreement with state action, without fear of reprisal based on the
expression, is unequivocally among the protections provided by the First Amendment.”); Barrett
v. Harrington,
130 F.3d 246, 264 (6th Cir. 1997) (“[I]t is well established that a public official’s
retaliation against an individual exercising his or her First Amendment rights is a violation of §
1983.”). Any reasonable police officer should have known that charging Kinkus with disorderly
conduct in retaliation for his critical speech, as Popp and Anderson did in this case, would violate
Kinkus’ First Amendment rights. Accordingly, I would hold that Popp and Anderson are not
entitled to qualified immunity with respect to Kinkus’ retaliatory prosecution claim.
C.
While I would reject Popp and Anderson’s requests for qualified immunity, I would
nevertheless reverse the district court’s ultimate grant of summary judgment in favor of Kinkus on
his retaliatory prosecution claim. A grant of summary judgment is proper only “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(c). In the instant case, however, there is a disputed issue of material fact regarding
Kinkus’ retaliatory prosecution claim, namely Popp’s and Anderson’s intent in filing the
disorderly conduct complaint. Kinkus alleges that this criminal complaint was retaliation for his
criticism of the police. Popp and Anderson claim that the complaint was a legitimate response to
the disorderly behavior of Kinkus during the flooding emergency. As disputes “involving proof a
defendant’s intent seldom lend themselves to summary disposition,” Center for Bio-Ethical
Reform, 477 F.3d at 823 (quoting
Bloch, 156 F.3d at 682), I would reverse the district court’s
grant of summary judgment to Kinkus on this claim and remand the case for trial so that a jury
could resolve this disputed issue of material fact.
II.
In addition to my concerns about the majority’s qualified immunity analysis, I am
disturbed by the majority’s decision to sua sponte pronounce a holding on an issue—whether the
Village should be entitled to summary judgment on Kinkus’ municipal liability claim—that was
not raised in Popp and Anderson’s notice of appeal nor properly asserted by them in their briefs.
Rule 3(c) of the Federal Rules of Appellate Procedure provides that a party’s “notice of
appeal must . . . designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.
3(c)(1)(B). This rule, whose requirements are “jurisdictional in nature,” Smith v. Barry,
502 U.S.
244, 248 (1992); accord Torres v. Oakland Scavenger Co.,
487 U.S. 312, 314-315 (1988),
“limit[s] this Court’s appellate review to issues designated in the notice of appeal.” United States
v. Glover,
242 F.3d 333, 335 (6th Cir. 2001). In particular, “[i]f an appellant . . . chooses to
designate specific determinations in his notice of appeal—rather than simply appealing from the
entire judgment—only the specified issues may be raised on appeal.” McLaurin v. Fischer, 768
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F.2d 98, 102 (6th Cir. 1985); accord United States v. Univ. Mgmt. Servs., Inc.,
191 F.3d 750, 756
(6th Cir. 1999) (Suhrheinrich, J.); Caldwell v. Moore,
968 F.2d 595, 598 (6th Cir. 1992)
(Suhrheinrich, J.) (“Under Rule 3(c)[,] where a notice of appeal specifies a particular order, only
the specified issues related to that order may be raised on appeal.”).
In the instant case, Popp and Anderson’s notice of appeal states:
Notice is hereby given that Defendants James Popp (“Popp”) and Gary Anderson
(“Anderson”) hereby appeal to the United States Court of Appeals for the Sixth
Circuit from this Court’s final judgments 1) denying Popp and Anderson’s motion
for summary judgment on the basis of qualified immunity entered in this action on
[March 13, 2007] and 2) granting of Plaintiff’s summary judgment on his First and
Fourth Amendment claims, entered in this action on [September 28, 2006] and
which became final when this Court denied Popp and Anderson’s motion for
summary judgment on the basis of qualified immunity on March 13, 2007 and was
incorporated in the judgment entered on March 13, 2007.
J.A. at 55. While the notice does list the Village as a party to the appeal in its caption, it does not
indicate that Defendants are appealing the district court’s ruling regarding the Village’s municipal
liability. Rather, this notice clearly limits the appeal to the district court’s denial of Popp and
Anderson’s motions for qualified immunity and its grant of summary judgment to Kinkus on his
First and Fourth Amendment claims against them. Consequently, under our precedent, the issue
of the Village’s municipal liability is not properly within our appellate jurisdiction for this case.
Even if we could construe the notice of appeal as permitting us to consider the issue of the
Village’s municipal liability on appeal, I would still find the majority’s discussion of it to be
improper because of Popp and Anderson’s failure to properly raise this issue in their arguments on
appeal. This issue of the Village’s municipal liability was not raised in Popp and Anderson’s
initial brief, but rather appeared for the first time in their reply to Kinkus’ response brief. Kinkus
was never afforded an opportunity to defend the district court’s decision on this point and the
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issue was never discussed at oral argument. Under our longstanding precedent, such an
issue—even if we had jurisdiction to consider it—should have been deemed waived. See, e.g.,
Scottsdale Ins. Co. v. Flowers,
513 F.3d 546, 553 (6th Cir. 2008) (collecting cases); Novosteel SA
v. United States,
284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a
reply brief does not suffice; reply briefs reply to arguments made in the response brief—they do
not provide the moving party with a new opportunity to present yet another issue for the court’s
consideration. Further the non-moving party ordinarily has no right to respond to the reply brief,
at least not until oral argument. As a matter of litigation fairness and procedure, then, we must
treat [such issues] as waived.”). Moreover, it is not clear that Popp or Anderson even have
standing to raise such an issue as it concerns the liability of the Village, as opposed to their own
individual liability, for the alleged infringement upon Kinkus’ constitutional rights. Accordingly,
I would not express any opinion with respect to this issue and would leave intact the district
court’s summary judgment decision regarding the Village’s municipal liability.
III.
For the foregoing reasons, I respectfully dissent.
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