GORDON J. QUIST, District Judge.
Plaintiff, Randal Ritchie, has sued various defendants in these consolidated cases based primarily on four 2010 incidents, three of which occurred during Coldwater Community Schools board meetings and the fourth of which occurred on school property. In his initial Complaint in case number 1:11-CV-530, Ritchie sued Coldwater Community Schools (School District), the Coldwater Community School Board (School Board), current and former School Board members, the current School District Superintendent, and the former School District Superintendent, alleging claims under 42 U.S.C. § 1983 for violation of Ritchie's First and Fourteenth Amendment rights and a state law claim for violation of the Michigan Open Meetings Act (OMA), M.C.L. § 15.261 et seq. Thereafter, Ritchie amended his Complaint twice, omitting certain claims and adding others. In addition, the parties stipulated to dismiss most of the School Board members. On July 11, 2012, 2012 WL 2862037, the Court entered an Opinion and Order granting in part and denying in part Defendants' Motion to Dismiss the Second Amended Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c).
Following the Court's rulings and additional stipulated dismissals, the following claims and Defendants remain in case number 1:11-CV-530: (1) Count I, alleging that School Board President Robin Iveson, former Superintendent David Disler, and the School Board violated Ritchie's First Amendment rights by cutting him off during the public comment portion of the May 24, 2010 School Board meeting; (2) Count II, alleging that Disler and the School Board interfered with Ritchie's First Amendment right to attend the July 12, 2010 School Board meeting by approving a police officer's June 11, 2010 verbal order banning Ritchie from the Administrative Services Center;
In case number 1:11-CV-616, Ritchie initially sued the City of Coldwater and Corporal Mark Miller. Ritchie subsequently amended his Complaint to add Corporal Patricia Johnson, Officer Nicholas Thornton, and Officer Eastmead as Defendants. In Count I of his Amended Complaint, Ritchie alleges that Corporal Miller — the police officer who issued the
Defendants in both cases have filed Motions for Summary Judgment requesting dismissal of all of Ritchie's claims. For the reasons set forth below, the Court will grant both motions in part and deny them in part.
Ritchie resides in Branch County, Michigan, and within the Coldwater Community Schools school district. Ritchie's children attended schools within the School District until the fall of 2010.
On April 22, 2010, Ritchie's daughter, who was in the Fourth grade at Jefferson Elementary School, told Ritchie that her teacher, Mrs. Renner, had pulled or tugged on her hair, causing her pain, as the class was preparing to take a math test. (Ritchie Dep. at 54-55, Coldwater Defs.' Br. Supp. Mot. Ex. A.) The following day, Ritchie took his daughter to the Coldwater Police Department (CPD) to report the hair-pulling incident as an assault and battery. (Id. at 67; Incident/Investigation Report, Pl.'s 530 Resp. Br. Ex. 6.)
Dissatisfied with Sgt. VandenHout's investigation, Ritchie pursued his complaint through other avenues outside the CPD, including the Michigan State Police, the Branch County Sheriff's Department, and Child Protective Services, but all declined to investigate. (Id. at 82, 84.) Ritchie also pursued the matter with the Branch County Prosecutor's office, which declined to pursue charges but advised Ritchie to take his concerns to the School Board or other agencies. (Ritchie Aff. ¶ 21, Pl.'s 530 Resp. Br. Ex. 9.)
On April 26, Ritchie accompanied his daughter on a school field trip. During the lunch break, a bus driver complained to Ritchie that Mrs. Renner had denied lunch to a student who forgot to bring a lunch from home. (Ritchie Aff. ¶ 5.) Ritchie found the student, who was then eating a lunch she had received from someone else, and asked the student and her para-professional questions about how Mrs. Renner denied the student a lunch. (Id. ¶ 9.) Later that day, Ritchie reported the lunch incident to the Michigan State Police, who, in turn, advised Mr. Bower that they did not intend to pursue Ritchie's complaint against Mrs. Renner. (Bower Aff. ¶ 14; Ritchie Aff. ¶ 9.) In a meeting the following day, Mr. Bower reminded Ritchie that he should avoid Mrs. Renner. (Bower Aff. ¶ 13.) On May 7, 2010, Disler notified Richie that he was to limit his contact with school employees to Pete Rogovich — Legg Middle School Assistant Principal — Mr. Bower, and Disler. (Letter from Disler to Ritchie of 5/7/10, Pl.'s 530 Resp. Br. Ex. 15.)
In early May, Ritchie sought out other parents who had concerns about Mrs. Renner. During a conversation with Scott Etoll on May 1, 2010, Mr. Etoll told Ritchie about how Etoll had once used force against a teacher who was beating his brother. (Ritchie Dep. at 114-15.) In response, Ritchie commented that there was a time in this country when a person could shoot someone who had hurt his child and the community would back him. (Id. at 113.) A few days later, the Etolls reported to Mr. Bower that Ritchie had been to their home on two occasions trying to enlist the Etolls to make claims against Mrs. Renner, that Ritchie had told them that he owned guns and knew how to use them, that Ritchie would not leave until they ordered him to do so, and that Ritchie appeared aggravated or aggressive. (Bower Aff. ¶ 20.) Mr. Etoll also told Mr. Bower about Ritchie's statement about a person shooting someone who harmed his child, although Mr. Etoll apparently said that Ritchie had referred to shooting a
In mid-May, School Board President Robin Iveson gave Ritchie permission to speak at the May 19, 2010 School Board meeting for up to five minutes, as permitted by School Board policy. Ritchie attended the meeting but chose not to speak because the meeting was limited to a specific issue. (Ritchie Dep. at 147-49.)
Ritchie and his wife both spoke during the regular School Board meeting on May 24, 2010. Prior to the meeting, Mrs. Renner, through her husband, requested that if Ritchie made any complaints or charges about Mrs. Renner during the public comment time, the School Board pursue the matter in a closed session as authorized by the OMA. See M.C.L. § 15.268(a) (permitting a public body to meet in closed session to consider charges brought against a public officer, employee, or staff member if such person requests a closed session). During the meeting, Ritchie's wife, Nisha, addressed the School Board about the incident involving her daughter and complained about the investigation by Mr. Bower and Disler and how the School District had treated Ritchie in response to his complaints. (Pl.'s 530 Resp. Br. Ex. 13.) As Nisha was commenting about the risk assessment that Disler had requested the CPD to perform, Iveson interrupted and stated that the OMA and board policy required that Nisha's allegations be addressed in a closed session because Mrs. Renner had requested that complaints against her be addressed in a closed session. A few speakers later, Ritchie addressed the School Board. Initially, Ritchie attempted to play a secretly recorded audio recording of his conversations with Disler and Mr. Bower. Disler and Iveson told Ritchie to stop the recording shortly after Ritchie began to play it. Disler told Ritchie that the recording was inaudible, that his use of the recording was inappropriate, and that Ritchie should speak if he had something to say. Without mentioning Mrs. Renner by name, Ritchie then complained about Disler's refusal to investigate his complaint about Mrs. Renner. Shortly thereafter, Iveson interrupted Ritchie and told him that the OMA and board rules required that his allegations be addressed in a closed session because the employee involved in his allegations had requested a closed meeting. Ritchie denied making any allegation about Mrs. Renner or that his comments were in tandem with his wife's comments. Ritchie and Disler then argued about whether Ritchie's comments concerned an employee, after which Ritchie explained that his comments concerned Disler's handling of his complaint. Ritchie attempted to continue his comments, but Iveson cut him off and invoked a closed session. Ritchie then walked away from the podium and Disler responded to Ritchie's comments. After Disler finished his comments, Ritchie returned to the podium and finished speaking. (Id.)
On Friday, June 11, 2010, Ritchie went to the School District's Administrative Services Center (ASC) to obtain some documents in connection with a School Board
Ritchie began to drive away but turned around when he saw a CPD officer drive into the ASC parking lot. (Id. at 180, 342.) Ritchie exited his truck and had a conversation with the CPD officer, Corporal Miller. Corporal Miller told Ritchie that the issue of obtaining documents was not a police matter and that the matter was finished. (Id. at 183.) As Ritchie was leaving, Corporal Miller called Ritchie back and told him to stop making these calls to the police. Eventually, Corporal Miller told Ritchie that he was free to go, but Ritchie responded that he did not want to leave. (Id.) Corporal Miller then asked Disler, who was standing nearby, whether Disler wanted Ritchie on the school property, to which Disler responded "no." (Id. at 187-88.) Hearing Disler's response, Ritchie turned to leave. Corporal Miller followed Ritchie, telling him to leave the property. When Ritchie responded that he did not hear what Corporal Miller said, Corporal Miller told Ritchie to leave the property and never return. Ritchie asked Corporal Miller whether his instruction was a police order, and Corporal Miller responded that it was. (Id. at 184-85, 188, 190; Disler Dep. at 119-20, Pl.'s 616 Resp. Br. Ex. 3.)
Following the June 11 incident, Corporal Miller sent an email to other CPD officers notifying them that Ritchie had been "trespassed" from the ASC and that Ritchie was subject to arrest for trespassing if he entered the property. (Email from Miller to CPD of June 12, 2010, Pl.'s 530 Resp. Br. Ex. 22.) Corporal Miller noted that Disler had given the trespass order on behalf of the School District. (Id.) Consistent with Corporal Miller's order to Ritchie, on June 18, 2010, Disler notified School Board members that Ritchie was prohibited from entering the ASC building, which effectively precluded Ritchie from attending the July 12, 2010 School Board meeting at the ASC. (Disler June 18, 2010 Mem., Pl.'s 530 Resp. Br. Ex. 23.)
Ritchie attended the open portion of the School Board meeting on June 14, 2009, which was held at an elementary school. Ritchie spoke during the public comment portion of the meeting without incident. Ritchie did not attend the monthly School Board meeting on July 12, 2010 at the ASC because of the police order threatening him with arrest if he entered the ASC. (Ritchie Aff. ¶ 33.)
On August 4, 2010, Ritchie met with Dr. Tina Kerr, who became the new Superintendent on July 1, 2010. Prior to the meeting, Kerr contacted Deputy Director Bartell of the CPD to inform him that she had invited Ritchie to the ASC for a meeting. Kerr advised Deputy Director Bartell that she would notify him if Ritchie's current restrictions would be altered in the future. (Pl.'s 530 Resp. Br. Ex. 24.) During the meeting, Kerr lifted the ban on Ritchie's access to the ASC. (Ritchie Aff. ¶ 35.) Subsequently, Ritchie attended the monthly School Board meeting held on
On September 7, 2010 — the first day of school — Ritchie picketed near Jefferson Elementary School, but off school property. (Ritchie Aff. ¶ 39.) As Ritchie picketed, CPD officers approached him and stated that they were investigating a complaint by the School District that Ritchie was trespassing on school property. (Id. ¶ 40.)
On September 27, 2010, Ritchie learned that a complaint and warrant had been issued against him for allegedly trespassing on school property on September 7, 2010. Ritchie immediately turned himself in to the authorities, waived arraignment, and posted bond. (Id. ¶ 41.) That evening, Ritchie went to the ASC to attend the monthly School Board meeting. Prior to the meeting, Iveson and Kerr instructed Jackie Lyon, a school secretary, to call the police based on the CPD no trespassing order if Ritchie appeared at the meeting. (Iveson Dep. at 29-30, Pl.'s 530 Resp. Br. Ex. 33.) As Ritchie was sitting quietly waiting to speak during the public comment period, Kerr instructed Ms. Lyon to call the CPD and notify them that Ritchie was at the meeting and subject to an arrest warrant. At one point, Kerr spoke to the dispatcher and said that she could not believe that Ritchie had already been picked up, booked, and released. (Pl.'s 530 Resp. Br. Ex. 28.) The dispatcher advised Kerr that Ritchie had in fact been booked and released on the charge. Kerr advised the dispatcher that the School District had a "no trespassing" on Ritchie, and the dispatcher responded that she could send an officer to arrest Ritchie if that were the case. (Id.) Kerr acknowledged that the meeting was a public board meeting, but she wanted the officer's interpretation of the situation. (Id.) Officer Nicholas Thornton and Corporal Patricia Johnson were dispatched to the meeting. Kerr told Officer Thornton that she thought Ritchie was going to make a scene during the public comment portion of the meeting because that was his "M O." (Pl.'s 530 Resp. Br. Ex. 31.) Kerr acknowledged that it was a public meeting, but she told Officer Thornton that she would rather not have Ritchie at the meeting. (Id.) Kerr did not tell Officer Thornton that Ritchie had her prior permission to attend the meeting. (Kerr Dep. at 125.) Officer Thornton responded that he had no problem arresting Ritchie based on the information from Kerr. As Ritchie was sitting in the meeting, Kerr approached him and asked him to speak with CPD officers in the hallway. Ritchie complied and left the room. Ritchie told Officer Thornton that he had a right to attend the public meeting and that he had a letter from Kerr stating that he was allowed to be on school property. (Thornton Dep. at 57.) Officer Thornton handcuffed Ritchie after he refused to leave the meeting and arrested him for trespassing.
On October 25, Ritchie appeared at the monthly School Board meeting at the ASC and sat quietly while waiting for an opportunity to speak during the public comment portion of the meeting. (Ritchie Aff. ¶ 44.) During a recess, Kerr approached Ritchie and advised him that he was trespassing. Ritchie responded that it was a public meeting and then questioned President
On October 27, 2010, the CPD issued a letter to Ritchie apologizing for arresting him at the September 27 and October 25 meetings and acknowledging Ritchie's right to attend the School Board meetings under the OMA. (Letter from Pehrson to Ritchie of 10/27/10, Pl.'s 530 Resp. Br. Ex. 36.) The following day, the City attorney requested dismissal of the charges against Ritchie arising out of the September 27 and October 25 arrests.
Summary judgment is appropriate if 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. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).
At the outset, the Court addresses Defendants' argument that the School Board is not a proper defendant. Defendants argued in their opening brief that the School Board is entitled to summary judgment on Counts I through IV of the Second Amended Complaint because Ritchie cannot demonstrate that the alleged constitutional deprivations were caused by a custom or policy of the School Board. In their reply, Defendants argued for the first time that the School Board should also be dismissed because it is not a governmental entity that can be sued.
The Court declines to consider the latter argument because Defendants failed to raise it in their opening summary judgment brief. As the Sixth Circuit has stated, "[i]ssues raised for the first time in a reply brief are not properly before this court." United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir.1993); see also Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) (noting that "we have found issues to be waived when they are raised for the first time in motions requesting reconsideration or in replies to responses"). Such issues are deemed waived. Blandford v. Exxon Mobil Corp., 483 Fed. Appx. 153, 161 (6th Cir.2012) (citing Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir.2010)). This rule applies in district court proceedings as well. See PNC Bank, Nat'l Ass'n v. Tyre Works-Hoffman, LLC, No. 1:12-cv-07499, 2013 WL 678145, at *4 n. 2 (N.D.Ill. Feb. 25, 2013) ("Usually, arguments raised for the first time in a reply brief are waived."); Steele v. Heard, 487 B.R. 302, 316 n. 20 (S.D.Ala.
In Count I, Ritchie alleges that Disler and Iveson violated his First Amendment rights by cutting him off as he attempted to speak during the public comment portion of the May 24, 2010 School Board meeting. Disler and Iveson argue that they are entitled to qualified immunity on this claim.
As set forth in the prior Opinion, when opened to the public, a school board meeting is a limited public forum for discussion of school-related issues. Featherstone v. Columbus City Sch. Dist. Bd. of Educ., 92 Fed.Appx. 279, 282 (6th Cir. 2004) (citing City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp't Relations Comm'n, 429 U.S. 167, 175-76, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976)); see also Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747,
Iveson and Disler contend that they did not violate Ritchie's First Amendment rights because the audio recording was unintelligible, and allowing Ritchie to play the tape was a waste of the School Board's time and may have violated the law.
(School Board Bylaws § 1370, attached to Iveson Aff. Defs.' Br. Supp. Ex. L.)
The Court concludes that Defendants did not violate Ritchie's rights by refusing to allow him to continue playing an audio recording that Ritchie himself concedes was unintelligible. Allowing Ritchie to play the tape would have been a waste of time, and Disler thus appropriately told Ritchie to address the School Board by speaking. Moreover, the School Board policy is a valid time, place, or manner regulation. Nonetheless, the issue is whether Defendants applied the policy with an intent to suppress Ritchie's viewpoint. See Monteiro, 436 F.3d at 404 (noting that "if Perkins-Auguste acted with an intent to suppress Monteiro's speech on the basis of viewpoint, she violated clearly established law and is not entitled to qualified immunity"); Timmon, 633 F.Supp.2d at 463 ("A defendant's motive is a question of fact that must be determined by a jury, but to survive summary judgment Plaintiff must present sufficient evidence to allow a jury to find that Defendants intended to silence her viewpoint." (internal citation omitted)).
The evidence in the record suffices to create a genuine issue of fact as to whether Iveson and Disler intended to silence Ritchie's viewpoint when they cut him off. Although Defendants contend that Ritchie was complaining about Mrs. Renner, a reasonable jury could conclude that Ritchie was complaining about Disler's
Iveson and Disler contend that Ritchie cannot show that his First Amendment rights were violated because, even after being interrupted, Ritchie continued to speak and expressed his disdain for the administration in general and Disler in particular. Iveson and Disler further note that when Ritchie finished his first speech he told the School Board that he had nothing more to say, and when he finished speaking the second time did not indicate that he had more to say. Nonetheless, an issue of fact remains as to whether Defendants precluded Ritchie from expressing his views. Disler and Iveson both interrupted Ritchie's first speech and told him that he would have to pursue his complaint in a closed session. Although Ritchie continued his speech when he spoke the second time, an issue of fact remains as to whether Ritchie was continuing his prior interrupted comments or simply responding to Disler's comments. Therefore, Iveson and Disler are not entitled to qualified immunity on Count I.
A governmental entity, such as the School Board, can be found liable under § 1983 only where the entity itself causes the constitutional violation at issue. See Monell v. New York Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). "It is only when the `execution of the government's policy or custom ... inflicts the injury' that the municipality may be held liable under § 1983." Springfield v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 1119, 94 L.Ed.2d 293 (1987) (O'Connor, J., dissenting) (quoting Monell, 436 U.S. at 694, 98 S.Ct. at 2037). Therefore, the School Board may be liable under § 1983 only if its policy or custom caused the alleged constitutional injury. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. For a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe v. Claiborne Cnty., 103 F.3d 495, 509 (6th Cir.1996). A "policy" includes a "policy statement, ordinance,
Ritchie contends that he has presented sufficient evidence to show that his First Amendment injury was caused by the School Board's informal policy of automatically cutting off dissenters critical of a staff member merely because the staff person has requested a closed session. Ritchie's evidence in this regard consists of anecdotal evidence from Audrey Burgher, a former principal in the School District, describing a former superintendent's reaction to her complaint about a male teacher's inappropriate relationship with a female student, as well as other administrators' unwillingness to investigate or take action on her complaints regarding teacher misconduct. (Burgher Aff. ¶¶ 4, 7-9, 12, 14, Pl.'s 530 Resp. Br. Ex. 2.) Ritchie also offers an affidavit from former board member Ronald Smith, who states that he recalls "persons ... whose speech was cut off when attempting to criticize staff," but he has "never heard anyone cut off while making positive comments about staff." (Smith 2d Aff. ¶¶ 15-16, Pl.'s 530 Resp. Br. Ex. 1.) In a transcript of a recorded interviewed attached to a prior affidavit, however, Mr. Smith states that he could only remember one person prior to Ritchie who was cut off for using a staff member's name. (Smith 1st Aff. & Tr. at 9, Pl.'s 530 Resp. Br. Ex. 3.) Mr. Smith also stated that the School Board tended to ignore or minimize parent complaints regarding staff members. (Id. at 8.) The Court finds this evidence insufficient to establish either an official policy or custom that was "so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (internal quotation marks and citation omitted). The experiences Ms. Burgher relates in her affidavit did not pertain to School Board meetings. Moreover, although Smith describes his perceptions of the School Board's attitude toward parent complaints regarding staff, he cites only one other situation (without providing specifics) in which a speaker was cut off for using a staff member's name.
Nonetheless, the Court concludes that there is sufficient evidence to create an issue of fact regarding the School Board's liability. "A single act by a `decisionmaker possess[ing] final authority to establish municipal policy with respect to the action ordered' may suffice in demonstrating [a] policy or custom." Cady v. Arenac Cnty., 574 F.3d 334, 345 (6th Cir. 2009) (first alteration in original) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986)). As School Board President, Iveson was responsible for running School Board meetings, including applying School Board policies and rules during meetings. (Iveson Dep. at 9.) Acting for the School Board, Iveson applied the policy as the basis for cutting off Ritchie's speech. Under these circumstances, a reasonable jury
In Count II, Ritchie alleges that Disler interfered with his right to attend the July 12, 2010 School Board meeting at the ASC by approving Corporal Miller's June 11, 2010 order that Ritchie not return to the ASC. The Court previously held that Ritchie stated a claim because he alleged that Disler "authorized, acquiesced in and/or tacitly approved the order and threat of arrest when specific inquiry was made by the issuing police officer to Defendant Disler." (7/11/12 Opinion at 21.) The Court also concluded that Disler was not entitled to qualified immunity.
The record evidence shows that after Ritchie refused to leave the ASC parking lot on June 11, 2010, Corporal Miller simply asked Disler whether he wanted Ritchie on the property and Disler responded "no." Under these circumstances, there is no basis to conclude that Disler understood Corporal Miller's inquiry to extend beyond the present circumstances to future School Board meetings. In other words, Corporal Miller's inquiry did not suggest a permanent ban on Ritchie's access to the ASC. It was not until Ritchie asked Corporal Miller to repeat himself that Corporal Miller told Ritchie never to return to the ASC.
Disler contends that he is entitled to summary judgment because the evidence shows that Corporal Miller was solely responsible for the order banning Ritchie from the ASC and that Disler did not authorize an order instructing Ritchie never to return. Disler further notes that he did not prohibit Ritchie from returning to the ASC property and that Ritchie never asked Disler or the School Board to have the CPD rescind the order. Finally, Disler argues that he is entitled to qualified immunity.
Although Corporal Miller had the lawful authority to order Ritchie to leave the ASC premises when Disler confirmed that he wanted Ritchie to leave, Corporal Miller exceeded that authority by issuing an order that precluded Ritchie from exercising his clearly established First Amendment rights to attend and speak at public School Board meetings at the ASC. See Madison Joint Sch. Dist., 429 U.S. at 175, 97 S.Ct. at 426; see also Berlickij v. Town of Castleton, 248 F.Supp.2d 335, 344 (D.Vt. 2003) ("Berlickij has a First Amendment right not to be excluded from a forum that is generally held open to the public."). A reasonable government official in Disler's position would have recognized that Corporal Miller had no basis to ban Ritchie, who had committed no crime, from the ASC for all purposes. In an analogous situation, the Sixth Circuit observed that "[a]ny competent
Based on the foregoing facts, Ritchie has presented sufficient evidence to establish a First Amendment violation by Disler. The law is well established that a governmental official can be held liable under § 1983 for failure to intercede to prevent a constitutional violation if he had reason to know that a violation was occurring and had a realistic opportunity to prevent the harm. See Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997) (noting in the context of use of excessive force that a police officer may be held liable for failing to intervene "when (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring"). Ritchie has shown that Disler had reason to know that the order violated Ritchie's constitutional rights and had both the opportunity and means to prevent the harm by instructing Corporal Miller or the CPD to rescind the order, at least in part, to correct the constitutional violation. Moreover, while bystander or failure to intervene cases most often occur in excessive force cases involving police or corrections officers, see id., the Court finds no reason why this basis of liability should not extend to other types of cases in which a defendant has both the opportunity and means to prevent a constitutional violation. See Wright v. Hedgepeth, No. C 09-4358 CW (PR), 2012 WL 4556632, at *3 (N.D.Cal. Sept. 30, 2012) (noting that if an individual who denies "a prisoner's appeals had the authority and opportunity to prevent an ongoing constitutional violation, [the prisoner] may be able to establish liability by alleging that they knew about an existing or impending violation and failed to prevent it"); Kohn v. Sch. Dist. of City of Harrisburg, 817 F.Supp.2d 487, 507-08 (M.D.Pa.2011) (concluding that the defendant-elected school board members could be held liable for constitutional violations caused by another governing body
Disler argues that even if he had authority to countermand Corporal Miller's order, he is entitled to qualified immunity because he reasonably believed that Ritchie threatened the physical safety of people on School District property. Defendants have presented no evidence that Corporal Miller's order arose out of, or was directed at, concerns that Ritchie posed a threat to others. In fact, Disler testified that his intention was simply to have Ritchie removed from the ASC for that particular day. (Disler Dep. at 92-93.) Moreover, as set forth below in the discussion regarding the September 27 and October 25 School Board meetings, there is significant evidence in the record that Ritchie was never disruptive or disrespectful at the School Board meetings he attended and did 3700 not engage in threatening behavior.
Regarding Ritchie's claim against the School Board, Ritchie has presented sufficient evidence to create an issue of fact as to whether the School Board adopted and ratified Corporal Miller's order as an official policy, either directly or by its approval of Disler's decision to maintain the order to bar Ritchie from attending the July 12 meeting. "If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988) (plurality opinion). As noted above, Disler advised the School Board that the order was in place against Ritchie and would preclude him from attending the July 12 meeting. Moreover, Ritchie has presented evidence showing that the School Board considered the order to be a valid bar to Ritchie's attendance of School Board meetings. For example, Iveson — who ran School Board meetings — testified that based on the no trespassing order, she authorized Jackie Lyon to call the police if Ritchie showed up at the September 27 meeting. (Iveson Dep. at 28-29.) As the Supreme Court has explained, a policy is not limited to formal rules adopted by legislative bodies, but may include a single decision by an authorized decisionmaker.
Pembaur, 475 U.S. at 481, 106 S.Ct. at 1299 (footnote omitted). Based on the foregoing evidence, a reasonable jury could conclude that the School Board adopted the order — which caused the constitutional violation — as its official policy.
Ritchie alleges in Counts III and IV that Kerr violated his First Amendment rights by having CPD officers forcibly remove him from the September 27 and October 25, 2010 School Board meetings. As the Court has previously noted, Ritchie had a right to attend and speak at School Board meetings so long as he was not creating a disturbance. Hansen v. Westerville City Sch. Dist. Bd. of Educ., Nos. 93-3231, 93-3303, 1994 WL 622153, at *8 (6th Cir. Nov. 7, 1994) (per curiam); see also Green v. Nocciero, 676 F.3d 748, 754 (8th Cir.2012) ("But having chosen to conduct its business in public and to hear citizen views, the Board could not deny access to the meeting and, while it could limit the subject matter of citizen comments, it could not discriminate against a speaker based on his viewpoint.") (citing City of Madison, 429 U.S. at 176, 97 S.Ct. at 426-27); cf. Leonard v. Robinson, 477 F.3d 347, 361 (6th Cir.2007) (holding that "no reasonable officer would find that probable cause exists to arrest a recognized speaker at a chaired public assembly based solely on the content of his speech (albeit vigorous or blasphemous) unless and until the speaker is determined to be out of order by the individual chairing the assembly").
It is undisputed that Ritchie was not creating a disturbance at either meeting at the time Kerr requested CPD officers to remove Ritchie.
Relying on many of the same cases the Court has previously distinguished as inapplicable in the First Amendment context, see, e.g. Cole v. Buchanan Cnty. Sch. Bd., 328 Fed.Appx. 204, 207 (4th Cir.2009); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir.1999), Defendants argue that Kerr had a valid basis to remove Ritchie from the meetings because Kerr determined that Ritchie presented a "clear and present danger" to those attending the meeting and she therefore had Ritchie removed "for reasons narrowly tailored
(Id. at 24-25.)
Defendants argue that Ritchie has not shown that Kerr acted pursuant to School Board policy or custom in having Ritchie removed from the meetings. Defendants emphasize that the School Board, rather than Kerr, possesses final policy making authority for the school. See M.C.L. § 380.11a(3), (5). The Court concludes that Ritchie has presented sufficient evidence to create an issue of fact whether his removal from the September 27 and October 25 meetings was caused by School Board policy. As explained above, there is sufficient evidence to allow a reasonable jury to conclude that the School Board ratified or adopted the CPD's no trespassing order as its own policy. Iveson testified that she relied on the order in authorizing a secretary to call the police if Ritchie appeared at the September 27 meeting. See Ross v. United States, 910 F.2d 1422, 1430 (7th Cir.1990) ("Where a particular course of action is authorized by a municipality's authorized decisionmakers, it represents a policy rightly attributed to the governmental entity, and in such a case there is no need to resort to proof of the policy's multiple applications to attribute its existence to the municipality."). Therefore, the Court will deny the School Board summary judgment on Counts III and IV.
In its July 11, 2012, Opinion, the Court concluded that Ritchie stated a valid claim against the School Board under Section 11 of the OMA based on a November 22, 2010 regular School Board meeting. Ritchie alleged that during the public meeting the board adjourned to meet in "executive session" to "consider material exempt from discussion or disclosure by state or federal statute." M.C.L. § 15.268(h). Ritchie alleges that during the closed meeting, the School Board discussed a proposed resolution to ban Ritchie from entering all school property and took an informal poll of the School Board members, which turned out to be 4-3 against the resolution. This Court concluded that Ritchie stated a valid claim because he alleged that the closed meeting involved a quorum of the School Board and the meeting involved deliberations and an informal poll on a matter of public policy.
Pursuant to Section 8 of the OMA, a public body may meet in a closed session to deliberate various matters, including "material exempt from discussion or disclosure by state or federal law." M.C.L. § 15.268(h). Such material includes a written legal opinion within the attorney-client privilege. Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich.App. 459, 467, 425 N.W.2d 695, 699 (1988). Although deliberations concerning matters covered by Section 8 "may take place in closed session, all actual votes and decisions must be made in an open meeting." Titus v. Shelby Charter Twp., 226 Mich.App. 611, 616, 574 N.W.2d 391, 393 (1998).
The record evidence shows that the School Board entered into an executive session during the November 22, 2010 meeting to consider a matter covered by the attorney-client privilege — specifically, a written legal opinion addressing the possibility of obtaining an order prohibiting Ritchie from accessing school property.
The other remaining OMA claim is against Iveson under Section 13. Section 13(1) of the OMA provides that "[a] public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500 total, plus court costs and actual attorney fees to a person... bringing the action." M.C.L. § 15.273(1). Section 3(5) of the OMA provides that "[a] person shall be permitted to address a meeting of a public body under rules established by the public body." M.C.L. § 15.263(5). Ritchie contends that Iveson violated this section by interrupting him during the May 24, 2010 meeting.
Defendants contend that Iveson is entitled to summary judgment on this claim because Ritchie has not shown that Iveson intended to violate the OMA. Defendants argue that the evidence shows that Iveson intended to comply with the OMA.
In order to prove a violation under Section 13, a defendant "must have a subjective desire to violate the OMA or knowledge that the offender is committing an act violative of the OMA." People v. Whitney, 228 Mich.App. 230, 255-56, 578 N.W.2d 329, 341 (1998). Based on the evidence in the record, the Court concludes that whether Iveson violated the OMA during the May 24 meeting and Iveson's subjective intent or desire are issues for the jury. As discussed above regarding Count I, the evidence is sufficient to permit a reasonable jury to conclude that Ritchie was not complaining about Mrs. Renner and that Disler and Iveson improperly interrupted his comments. This same evidence, combined with Ritchie's statement that he was not complaining about Mrs. Renner would allow a reasonable jury to infer that Iveson knew that she was violating the OMA by cutting off Ritchie's comments. Therefore, the Court will deny summary judgment to Iveson on Count IX.
Defendants contend that Ritchie's punitive damage claims against the School Board must be dismissed because they are not available as a matter of law. Ritchie wisely does not dispute this point because the Supreme Court has held that a plaintiff may not recover punitive damages against municipalities in a § 1983 lawsuit. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981); see also Long v. Fulton Cnty. Sch. Dist., 807 F.Supp.2d 1274, 1290 (N.D.Ga.2011) ("FDSD, a public school district, undoubtedly falls within the scope of [City of Newport]."). Therefore,
In Count I of his Amended Complaint, Ritchie alleges that Corporal Miller violated his constitutional rights in several respects by issuing the June 11, 2010 no trespassing order. The Court interprets Ritchie's Amended Complaint to allege that the order violated Ritchie's fundamental right to travel, his substantive due process right to be free from arbitrary and capricious government action, and his First Amendment rights to access publicly available information and to access the ASC in order to attend the July 12, 2010 School Board meeting. As the Court understands Ritchie's response, however, Ritchie limits the theories of his claim to violation of his right to intrastate travel and violation of his First Amendment rights of access to publicly-available records and to access the ASC to attend School Board meetings.
Ritchie's claim fails to the extent it relies on a right to intrastate travel. As the Sixth Circuit has explained, the right to intrastate travel is limited to "the right to travel locally through public spaces and roadways." Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002). Ritchie does not claim that Corporal Miller's order interfered with his right to travel through public spaces and roadways. Instead, Ritchie's claim is that the order prevented him from accessing the ASC — a specific government building. Ritchie cites no authority for the proposition that the right to travel, whether interstate or intrastate, includes the right to access particular government buildings or offices. To the contrary, courts have held that the right to travel does not encompass the right to access particular government property. For example, in Thompson v. Ashe, 250 F.3d 399 (6th Cir.2001), the Sixth Circuit rejected the plaintiff's claim that a public housing authority's no-trespass policy, which precluded the plaintiff from accessing a housing development, infringed his right of interstate travel. The court observed that "[t]he no-trespass policy restricts Thompson's travel only with regard to his being on [the defendant's] property. Thompson's inability to visit twelve housing developments in Knoxville obviously does not burden his right to travel interstate." Id. at 406. Similarly, in Hannemann v. Southern Door County School District, 673 F.3d 746 (7th Cir. 2012), the Seventh Circuit held that an indefinite ban barring the plaintiff from school property did not violate the plaintiff's right to intrastate travel. The court observed that "[t]he right to intrastate travel protects the right to move from place to place, not the right to access certain public places." Id. at 757. The Hannemann court cited Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir.2008), in which the court held that "a municipality's decision to limit access to its facilities does not interfere with the right to free movement." Id. at 76. The Williams court noted that cases concerning the right to intrastate travel pertain to the freedom of movement "between places otherwise open to their presence." Id. The court thus observed that "it would distort the
Defendants also contend that Ritchie's claim fails to the extent he alleges that the order violated his First Amendment right to obtain or view public documents and information from the ASC, such as public notices and minutes. Ritchie's First Amendment claim in this regard relies on the OMA's requirement that a public body, such as a school district, make notices, minutes, and other documents available for inspection by the public. See M.C.L. §§ 15.264, 15.269.
Although the First Amendment "protects the people's right to know that their government acts fairly," Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir.2002), there is no freestanding right under the First Amendment to access records or information within the government's possession.
To the extent Ritchie suggests that he may premise a First Amendment claim on the OMA's disclosure requirements, his argument must fail. As the Sixth Circuit has recently observed, "a violation of state law does not necessarily create a constitutional violation." Moore v. Mitchell, 708 F.3d 760, 798 (6th Cir. 2013); cf. United States v. Beals, 698 F.3d 248, 264 (6th Cir.2012) (holding that a defect in warrant under state law does not require suppression in a federal criminal proceeding because the state-law defect did not violate the Fourth Amendment). Courts that have considered First Amendment claims similar to Ritchie's claim in this case — premised on state open meetings or freedom of information acts — have concluded that state disclosure laws do not create First Amendment rights. For example, in Shero v. City of Grove, No. 05-CV-0137-CVE-PJC, 2006 WL 3196270 (N.D.Okla. Nov. 2, 2006), aff'd, 510 F.3d 1196 (10th Cir.2007), the plaintiff alleged that the defendants' denial of his request for city council packets violated his First Amendment right to petition the government. The court rejected the argument, noting that "it is well-settled that there is no general First Amendment right of access to all sources of information within governmental control," id. at *3 (internal
As for the remaining aspect of Ritchie's First Amendment claim, Ritchie has a First Amendment right to attend and speak at School Board meetings. See id. ("Berlickij has a First Amendment right not to be excluded from a forum that is generally held open to the public."). Because the ASC is the regular site of School Board meetings, Ritchie's right to attend and speak at those meetings necessarily included a limited right to access the ASC to attend the meetings. Because Corporal Miller's order banned Ritchie from entering the ASC for all purposes, the order violated Ritchie's First Amendment rights.
The City Defendants argue that Corporal Miller's order was lawful because City of Coldwater Ordinance § 660.03 authorized Miller to issue the order at Disler's request. The Ordinance provides, in pertinent part: "Any person who is on the grounds of a private, public or parochial school, or a building thereof, shall leave when requested to do so by the principal, assistant principal or other person responsible for the building, without the necessity of reasons being assigned for such request to leave." (City Defs.' Br. Supp. Mot. Ex. M.) Defendants are correct that Ordinance 660.03 provided a valid basis for Corporal Miller to order Ritchie from the ASC property when Disler confirmed that he wanted Ritchie to leave. However, even if the Ordinance arguably provided a valid basis for a broader continuing order banning Ritchie from the ASC,
Defendants also contend that Ritchie has no claim against Corporal Miller because Disler authorized the order, and all parties recognized that only Disler or another authorized school representative could rescind the order. As the Sixth
Finally, regarding Defendants' assertion that Corporal Miller is entitled to qualified immunity, the Court concludes that Corporal Miller is entitled to qualified immunity only with regard to the alleged violations of Ritchie's right of intrastate travel violation and denial of access to information and documents under the First Amendment, as Corporal Miller's actions did not violate clearly established constitutional rights of which a reasonable police officer would have been aware. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). However, for the foregoing reasons, Corporal Miller is not entitled to qualified immunity insofar as Ritchie alleges that the order violated his right to attend School Board meetings at the ASC.
In Count V, Ritchie alleges that Officers Thornton and Eastmead and Corporal Johnson violated his Fourth Amendment right to be free from unreasonable seizures by arresting him without probable cause. "Probable cause is defined as `reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.'" United States v. Smith, 182 F.3d 473, 477 (6th Cir.1999) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990)). In assessing probable cause in the context of a warrantless arrest, a police officer need not "investigate independently every claim of innocence." Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.2000). Once an officer determines that the facts and circumstances give rise to probable cause, the officer has no further duty to investigate or to search for exculpatory evidence. Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir.1999). However, in making the initial probable cause determination, the officer must consider "both the inculpatory and exculpatory evidence" known to the arresting officer. Gardenhire, 205 F.3d at 318 (emphasis in original). This means that the officer's probable cause determination must include "`facts and circumstances establishing a statutorily legitimated affirmative justification for the suspected criminal act.'" Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir.2002) (quoting Painter v. Robertson, 185 F.3d 557, 570 (6th Cir.1999)). Police officers are not required to conduct "quasi-trials" as a prerequisite to a warrantless arrest, but they cannot ignore information that would alert a reasonable officer that the suspect's behavior is protected by a legally cognizable affirmative defense. Id. "[W]hen we refer to whether an officer would conclusively know that the defendant is protected by an affirmative defense, we have focused entirely on the facts and circumstances known to the officer at the time of the arrest; not on the officer's knowledge, or lack thereof, of the statute that provides the defense. Knowledge of the statute is imputed to the police officer." Pritchard v. Hamilton Twp. Bd. of Trs., 424 Fed.Appx. 492, 506 (6th Cir. 2011) (italics added). Probable cause is an
Defendants contend that they are entitled to summary judgment because they were authorized to arrest Ritchie under Ordinance 660.03. Defendants argue that they were authorized to arrest Ritchie once Kerr asked Ritchie to leave and he refused to do so. Contrary to Defendants' argument, however, Ritchie's evidence creates an issue of fact as to whether Defendants lacked probable cause to arrest Ritchie. First, there is no evidence that Kerr asked Ritchie to leave, at least at the September 27 meeting, as required by the Ordinance. But even if she had requested him to do so, the officers still lacked probable cause to arrest Ritchie. As set forth above, Ritchie had a right, both under the First Amendment and the OMA, to attend the public School Board meeting unless he was creating a disturbance. It is undisputed that prior to the time Kerr summoned Defendants to the ASC, Ritchie was not creating a disturbance. In fact, during the September 27 meeting, Kerr told Officer Thornton that Ritchie's M.O. was that he was going to create a scene during the public comment portion, not that he was creating, or had already created, a scene. Moreover, Kerr expressed to Officer Thornton her hesitation in having the police remove Ritchie because the meeting was a public meeting. Ritchie also asserted to Officer Thornton that he had a right under the OMA to attend the public meeting. Finally, for the reasons set forth above, in arresting Ritchie, Defendants could not reasonably rely on Corporal Miller's no-trespassing order or on Kerr's statements that she did not want Ritchie on the premises.
Defendants also argue that they are entitled to qualified immunity. Under these facts, however, no reasonable police officer would have believed that he could have arrested Ritchie, even if Kerr had asked Ritchie to leave the meeting. Cf. Leonard, 477 F.3d at 361 (holding that no reasonable officer would have concluded that probable cause existed to arrest a recognized speaker at a public meeting based solely on his speech unless and until the individual chairing the meeting determined the speaker to be out of order). Defendants argue that Ordinance 660.03 had not been invalidated and is not so grossly unconstitutional that any reasonable person would know that it was flawed. Defendants are correct that, on its face, the Ordinance is not invalid. However, reasonable police officers would have known that Ordinance 660.03, or any trespassing law, cannot be used to remove a person from a public meeting if that person has not disturbed the meeting or been declared out of order. Finally, Defendants should have been aware that the OMA gave Ritchie the right to attend the public meeting.
Defendants contend that they are entitled to summary judgment on Ritchie's First Amendment claims in Count IV. Ritchie alleges that Defendants violated his First Amendment rights by participating in his removal from the School Board meetings. Ritchie had a First Amendment right to attend the meetings. Defendants argue that it was not their job to determine the constitutionality of the decision to have Ritchie removed from the meeting. As discussed above, however, Defendants cannot shirk liability by pointing the finger at Kerr. Defendants had an obligation to determine whether their own
Defendants further contend that they are entitled to qualified immunity, but this argument fails because reasonable police officers would have known that they could not have arrested Ritchie unless he was creating a disturbance at the meetings. Defendants' reliance on Green v. Nocciero, 676 F.3d 748 (8th Cir.2012), is misplaced because Green is distinguishable from this case. In Green, the court held that the police officers were entitled to qualified immunity because they reasonably relied on information from the school's head of security that the plaintiff was being disruptive and had refused to leave the meeting. Id. at 751. There is no such evidence in this case.
Count II of the Amended Complaint pertains to the City of Coldwater. The grounds for the claim are not entirely clear. On one hand, Ritchie appears to allege that the City is liable simply for passing Ordinance 600.03 and/or failing to amend it to include a provision stating that it is not applicable to school meetings that are open to the public. On the other hand, Ritchie appears to allege that Ordinance 600.03 was the moving force behind the alleged constitutional deprivations. The City moves for summary judgment on Count II, arguing that the mere existence of Ordinance 600.03 does not result in a constitutional violation. The City concedes that the Ordinance could be applied in an unconstitutional manner, but it contends that if a constitutional violation occurred, it was caused by school officials, rather than the City's police officers.
To the extent Ritchie alleges that the City is liable simply for passing the ordinance or failing to amend it to include a provision stating that it is not applicable to public school meetings, Ritchie's claim fails because such conduct does not give rise to a constitutional violation. The Ordinance is not facially invalid, nor is there any reason to conclude that the Ordinance, standing alone, violates Ritchie's rights. On the other hand, as the City concedes, the Ordinance may be applied in such a way that a constitutional violation results. Contrary to the City's assertion, however, Ritchie has presented sufficient evidence to show that school officials and the City's police officers engaged in conduct that resulted in constitutional violations. In this regard, Ritchie has demonstrated a basis to hold the City liable for the alleged violations because the Ordinance constitutes a policy of the City that was the moving force behind all of the alleged constitutional violations by its police officers. Moreover, Ritchie has presented evidence that the City, through its police department, adopted Corporal Miller's unlawful order as its official policy or custom when, on June 25, 2010, Deputy Director and Internal Affairs Inspector Bartell reiterated the order instead of repealing it. In fact, the evidence shows that the City's police department recognized the order as a continuing ban on Ritchie's access to the ASC under all circumstances. The City's police department continued to recognize and enforce the unlawful order when its officers subsequently arrested Ritchie at the September and October School Board judgment on Count II
Ritchie also asserts a claim against the City in Count III pertaining to the Fourth Amendment violations. For the reasons cited with regard to Count II, the Court also concludes that the City is not entitled to summary judgment on Count III.
Although Defendants do not specifically address Ritchie's claim for declaratory relief in their Motion for Summary Judgment, the Court has reviewed it and concludes that the claim should be dismissed. In Count VIII, Ritchie seeks a declaratory judgment that Ordinance 660.03 is unconstitutionally vague or overbroad. Ritchie further seeks a ruling that Ordinance 660.03 expressly conflicts with the OMA. Ritchie requests that the Court declare the Ordinance void.
"[A]n enactment is void for vagueness if its prohibitions are not clearly defined." 600 Marshall Entm't Concepts, LLC v. City of Memphis, 705 F.3d 576, 586 (6th Cir.2013) (internal quotation marks omitted). Ordinance 660.03 is not unconstitutionally vague or overbroad. Its commands are simple and clear — a person on school grounds must leave when requested to do so by the school official responsible for the building. Moreover, contrary to Ritchie's lone allegation regarding vagueness, (see Am. Compl. ¶ 105), Ordinance 660.03 is not directly concerned with speech.
Ritchie's overbreadth argument also fails. In an overbreadth challenge, "[l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). "To show that a statute is unconstitutionally overbroad, plaintiffs must demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally." Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622, 627 (6th Cir.2010) (quoting Connection Distrib. Co. v. Holder, 557 F.3d 321, 336 (6th Cir.2009) (en banc) (internal quotation marks and alterations in original omitted)). A law will be deemed overbroad and facially invalid only if it proscribes a substantial amount of constitutionally protected speech as compared to the law's "plainly legitimate sweep." Phelps-Roper v. Strickland, 539 F.3d 356, 360 (6th Cir.2008) (citing Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003)). The Supreme Court has observed that invalidation on overbreadth grounds is "[r]arely, if ever," appropriate where the challenged law or regulation "is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)." Hicks, 539 U.S. at 124, 123 S.Ct. at 2199.
Ritchie's overbreadth challenge is not appropriate in this case because Ritchie does not challenge the Ordinance as burdening the expressive conduct of others, but instead alleges that it is unlawful as applied to his own First Amendment activity. See de la O v. Hous. Auth. of City of El Paso, 417 F.3d 495, 505-06 (5th Cir.2005) (noting the inapplicability of an overbreadth challenge because the plaintiff's claim "is predicated on her own supposed injury resulting from the alleged unconstitutionality of the HACEP
Finally, as for Ritchie's allegation that the Ordinance is void because it expressly conflicts with the OMA, there is no support for such a conclusion. Although the Ordinance may be applied in a manner contrary to the OMA by unlawful exclusion of persons from open school board meetings, the Ordinance covers substantially more conduct that is not covered by the OMA. Moreover, the OMA does not supersede the Ordinance, as Ritchie alleges, because the Ordinance does not "relate to requirements for meetings of local public bodies to be open to the public." M.C.L. § 15.261(2).
In Count VII, Ritchie alleges state law claims for false arrest and malicious prosecution. Defendants argue that they are entitled to summary judgment on these claims on the basis of governmental immunity. Ritchie did not address these claims in his response. During the hearing on the instant motions, Ritchie's counsel explained that he did not address the false arrest and malicious prosecution claims due to page constraints. However, Ritchie could have requested an extension of the page limitations, as other parties have done in these cases.
Ritchie's failure to address Defendants' governmental immunity argument in his response constitutes a waiver of any argument he may have. See Mitchell v. ConAgra Foods, Inc., 448 Fed.Appx. 911, 914 (11th Cir.2011) (holding that the plaintiffs waived their argument by failing to respond to the defendant's motion for summary judgment); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir.1995) (stating that a non-movant's failure to respond to a motion for summary judgment "constitutes an admission by the non-movant that there are no disputed issues of genuine fact warranting a trial").
Even absent a waiver by Ritchie, the Court concludes that Defendants are entitled to summary judgment on Ritchie's state law claims on the basis of governmental immunity. A lower-ranking official who seeks governmental immunity for an intentional tort must show (1) that his acts were undertaken during the course of employment and he was acting, or reasonably believed he was acting, within the scope of his employment; (2) the acts were undertaken in good faith, or were not undertaken with malice, and (3) the acts were discretionary, as opposed to ministerial. Odom v. Wayne Cnty., 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008). "Good faith" is a subjective test, under which a defendant is subject to liability only if he acted with "malicious intent." Id. at 482, 760 N.W.2d at 229. There is no issue that Defendants were acting in the course of their employment as police officers when they arrested Ritchie, nor is there any dispute that Defendants' acts were discretionary and not ministerial. As for the remaining factor, the Court concludes
For the foregoing reasons, in case number 1:11-CV-530, the Court will grant in part and deny in part the School District Defendants' Motion for Summary Judgment. The motion will be granted as to Ritchie's OMA claim in Count VI against the School Board and his claim for punitive damages against the School Board and denied in all other respects. The case will continue on the claims against Iveson, Disler, and the School Board in Count I; the claims against Disler and the School Board in Count II; the claims against Kerr and the School Board in Counts III and IV; and the claim against Iveson in Count IX.
In case number 1:11-CV-616, the Court will grant in part and deny in part the City Defendants' Motion for Summary Judgment. The motion will be granted as to Ritchie's state-law claims of false arrest and malicious prosecution in Count VII and his request for a declaratory judgment in Count VIII and denied in all other respects. The case will continue on the claim against Corporal Miller in Count I, limited to a violation of Ritchie's First Amendment right to attend the July 12, 2010 School Board meeting; the claims in Counts IV and V against Officers Thornton and Eastmead and Corporal Johnson; and the claims in Counts II and III against the City, to the extent Ritchie alleges municipal liability for the claims against the individual Defendants in Counts I, IV and V.
An Order consistent with this Opinion will issue.
