Andrew Cooperrider v. Maggie Woods

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0026p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ANDREW COOPERRIDER; DEANS DINER, LLC, dba

│

Brewed,

│

Plaintiffs-Appellants, │

│

v. > No. 24-5351

│

│

MAGGIE WOODS, Malt Beverage Administrator with │

the Kentucky Department of Alcoholic Beverage │

Control, ANDREW G. BESHEAR, Governor of │

Kentucky, RAY A. PERRY, Secretary of Public │

Protection Cabinet, ALLYSON TAYLOR, Commissioner │

of the Kentucky Department of Alcoholic Beverage │

Control, WESLEY WARDEN DUKE, General Counsel for │

the Kentucky Cabinet for Health and Family Services, │

and JOSHUA NEWTON, General Counsel for the │

Kentucky Department of Alcoholic Beverage Control, │

in their individual and official capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.

No. 3:22-cv-00016—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: February 7, 2025

Before: MOORE, CLAY, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christopher Wiest, Theodore Roberts, CHRIS WIEST, ATTY AT LAW, PLLC,

Covington, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR, ARMSTRONG,

Cincinnati, Ohio, for Appellants. Jan M. West, J. W. Hall, GOLDBERG SIMPSON, LLC,

Prospect, Kentucky, for Appellees Maggie Woods and Allyson Taylor. Laura C. Tipton, Travis

Mayo, Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellee Andy

Beshear. T. Chad Thompson, KENTUCKY PUBLIC PROTECTION CABINET, Frankfort,

Kentucky, for Appellee Ray Perry. LeeAnne Applegate, CABINET FOR HEALTH AND

No. 24-5351 Cooperrider et al. v. Woods et al. Page 2

FAMILY SERVICES, Frankfort, Kentucky, for Appellee Wesley Duke. Jennifer Wolsing,

KENTUCKY PUBLIC PROTECTION CABINET, Frankfort, Kentucky, for Appellee Joshua

Newton.

MOORE, J., delivered the opinion of the court in which CLAY, J., concurred, and

THAPAR, J., concurred in part. THAPAR, J. (pp. 31–44), delivered a separate opinion

concurring in part and dissenting in part.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In March 2020, Andrew Cooperrider

expressed on social media his dissatisfaction with Kentucky Governor Andrew Beshear’s actions

in response to the COVID-19 pandemic. Cooperrider, the owner of Brewed, a coffee shop and

bar in Lexington, took specific offense to Governor Beshear’s executive orders requiring masks

indoors and prohibiting indoor dining and drinking. Then, in November 2020, the Kentucky

Department of Alcoholic Beverage Control (“DABC”) suspended Brewed’s alcohol license.

Upon DABC’s official revocation of Brewed’s license in March 2022, Cooperrider filed suit

against the Governor, the DABC commissioner, and a number of other executive-branch officials

alleging First Amendment and due-process violations. According to Cooperrider, his social

media postings and the license-revocation action were connected: the Governor and DABC had

allegedly revoked Brewed’s alcohol license in retaliation for Cooperrider’s protected speech

criticizing Beshear and his COVID-19 policies. All defendants responded to the suit by moving

to dismiss. The district court granted those motions and dismissed the case. Cooperrider and

Brewed now appeal.

We hold that the district court correctly determined that the vast majority of

Cooperrider’s claims are barred by the doctrines of absolute, qualified, and sovereign immunity,

and that it correctly determined that Cooperrider’s remaining substantive-due-process claim fails

the Rule 12(b)(6) pleading standard. So we AFFIRM IN PART the dismissals. But because we

hold that the district court improperly granted qualified immunity to Appellees Beshear, Perry,

and Duke as to Cooperrider’s First Amendment retaliation claim, we REVERSE IN PART and

REMAND for further proceedings.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 3

I. FACTUAL BACKGROUND

A. Cooperrider’s Speech

When the COVID-19 pandemic erupted in March of 2020, Kentucky Governor Andy

Beshear declared a state of emergency and issued a number of executive orders intended to

protect the public from the spread of the disease. Ky. Exec. Order No. 2020-215 (Mar. 6, 2020)

(declaring a state of emergency); Ky. Exec. Order No. 2020-586 (July 9, 2020) (establishing a

mask mandate and prohibiting indoor food and beverage service at restaurants and bars); Ky.

Exec. Order No. 2020-986 (Nov. 18, 2020) (same). Andrew Cooperrider, the sole owner of

Brewed1, a Lexington, Kentucky coffee shop that also served beer2, took great issue with the

Governor’s actions. R. 1 (Compl. at ¶ 12) (Page ID #4). Starting in March 2020, Cooperrider

made a series of highly critical posts on social media regarding Beshear and his actions taken in

response to the pandemic. Id. at ¶ 13 (Page ID #4). Cooperrider made these posts on his own

social-media accounts as well as on Brewed’s official social-media page. Id.

B. The Enforcement Proceeding

On November 25, 2020, the DABC commenced an enforcement action against Brewed

and filed an emergency order suspending Brewed’s alcohol license.3 Id. at ¶ 18 (Page ID #5); R.

23-3 (Emer. Susp. Order at 1) (Page ID #344). The emergency-suspension order rested on “two

separate and distinct violations by the licensee”: first, Brewed’s apparent violation of the

Governor’s executive orders; and second, the establishment’s “disorderly conduct” in violation

of state law. R. 23-3 (Emer. Susp. Order at 1–2) (Page ID #344–45). The disorderly conduct

violation stemmed from an incident on November 24, 2020, when Cooperrider and Brewed

1

The establishment doing business as “Brewed” is a limited liability company incorporated under the name

Deans Diner, LLC. We will refer to the establishment as Brewed for clarity.

2

Brewed had two alcohol licenses in order to serve beer: an NQ4 Malt Beverage Drink License (No. 034-

NQ4-162794) and an NQ Malt Beverage Package License (No. 034-NQ-162795). R. 23-3 (Emer. Susp. Order at 2)

(Page ID #345). Both were revoked via the emergency suspension order and final revocation. For clarity, we will

refer to both licenses as “Brewed’s license” or “the alcohol license” throughout.

3

Cooperrider apparently took issue with the DABC enforcement action and led a citizen effort to seek

Governor Beshear’s impeachment, resulting in a citizen petition filed with the Kentucky House of Representatives

in January 2021. R. 1 (Compl. at ¶ 19) (Page ID #5); see Lane Ball, Kentuckians petition to impeach Gov. Beshear,

WOWK Channel 13 News (Jan. 10, 2021, 11:36 PM), https://www.wowktv.com/news/kentucky/kentuckians-

petition-to-impeach-gov-beshear/.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 4

patrons harassed an inspector from the Lexington-Fayette County Health Department

(“LFCHD”) who had been conducting a regularly scheduled inspection at Brewed. Id. at 2–3

(Page ID #345–46). The order stated that “[t]he second basis for this Emergency Suspension

Order is independent of the first and does not rely on the Governor’s Executive Orders.” Id. at

1–2 (Page ID #344–45). DABC also served upon Cooperrider a notice of violation (“NOV”)

providing notice that the Department had initiated administrative proceedings and sought to

revoke or suspend Brewed’s alcohol license. R. 23-4 (NOV at 1) (Page ID #354).

When the Kentucky General Assembly convened its 2021 Regular Session, the

legislature passed legislation overturning Governor Beshear’s pandemic-related executive orders

and restraining the Governor’s power to issue future executive orders. R. 1 (Compl. at ¶ 21–27)

(Page ID #5–7). That legislation included House Bill 1 (“HB1”), which loosened the

requirements for indoor gathering, including in restaurants and bars; Joint House Resolution 77

(“HR77”), which ended the Governor’s orders relating to business shutdowns and capacity

restrictions; and certain provisions of House Bill 192 (the Assembly’s budget bill) (“HB192”),

which prohibited state spending over $10,000 on actions enforcing the COVID-19 executive

orders. Id.

Meanwhile, the DABC enforcement action against Brewed proceeded, and a hearing was

held on May 21, 2021. Id. at ¶ 31 (Page ID #8). Then, on March 4, 2022, DABC revoked

Brewed’s alcohol license. Id. at ¶ 35 (Page ID #9). Cooperrider appealed the revocation order in

state court. R. 8-2 (State Appeal at 1–14) (Page ID #97–110). According to Governor Beshear’s

brief, on June 4, 2024, the Fayette Circuit Court reversed DABC’s final order revoking Brewed’s

license. Beshear Br. at 6 n.2 (citing Deans Diner, LLC d/b/a Brewed v. Alcoholic Beverage

Control Bd., Civil Action No. 22-CI-00894 (Fayette Cir. Ct. June 4, 2024)). DABC appealed

that decision, and the matter is currently pending before the Kentucky Court of Appeals.

Alcoholic Beverage Control Bd. v. Deans Diner, LLC d/b/a Brewed, No. 2024-CA-0800 (Ky. Ct.

App.).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 5

C. The Proceedings Below

Following the revocation of Brewed’s alcohol license, Cooperrider and Brewed

(hereinafter, “Cooperrider”) quickly filed suit against Governor Beshear; Ray Perry, Secretary of

the Kentucky Public Protection Cabinet; Wesley Duke, General Counsel for the Kentucky

Cabinet for Health and Family Services; Joshua Newton, DABC General Counsel; Allyson

Taylor, DABC Commissioner; and Maggie Woods, DABC Malt Beverage Administrator. R. 1

(Compl. at ¶ 4–9) (Page ID #3). The complaint alleged violations of Cooperrider’s First

Amendment and due-process rights. Id. at ¶ 36–50 (Page ID #9–11). According to Cooperrider,

Beshear and DABC had unconstitutionally retaliated against Brewed for Cooperrider’s protected

speech criticizing the Governor’s COVID-19 policies. Id. at ¶ 38–40 (Page ID #9–10). And by

failing to discontinue the enforcement action and continuing to withhold Cooperrider’s

property—i.e, Brewed’s alcohol license—Beshear and DABC had deprived Cooperrider of both

procedural and substantive due process. Id. at 45–47 (Page ID #10–11). Cooperrider sought

both compensatory and injunctive relief against all defendants in both their personal and official

capacities.

In response to the complaint, Defendants Perry, Beshear, Duke, and Newton moved to

dismiss all claims brought against them in both their official and individual capacities. R. 7

(Perry Mot. to Dismiss); R. 8 (Beshear Mot. to Dismiss); R. 9 (Duke Mot. to Dismiss); R. 23

(Newton Mot. to Dismiss). The district court granted all four motions via a memorandum

opinion and order issued on March 23, 2023, and terminated the case as to defendants Perry,

Beshear, Duke, and Newton. R. 26 (Mem. Op. and Order I).

Defendants Woods and Taylor initially filed answers. R. 12 (Woods Answer), R. 13

(Taylor Answer). After the district court dismissed defendants Perry, Beshear, Duke, and

Newton, only Defendants Woods and Taylor remained. Woods and Taylor filed a joint motion

to dismiss. R. 27 (Taylor/Woods Mot. to Dismiss). The district court granted the motion,

dismissed both defendants from the case, and adjudged the action dismissed via a memorandum

opinion and order and accompanying final judgment on March 19, 2024. R. 33 (Mem. Op. and

Order II), R. 34 (Judgment). Cooperrider timely appealed. R. 35 (Notice of Appeal at 1) (Page

ID #500).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 6

II. DISCUSSION

A. Standard of Review

Via its March 23, 2023 and March 19, 2024 orders, the district court dismissed all of

Cooperrider’s claims against each Defendant. It did so pursuant to two different rules: Federal

Rule of Civil Procedure 12(b)(6), which relates to the factual sufficiency of a complaint, and

Federal Rule of Civil Procedure 12(b)(1), which relates to a complaint’s jurisdictional

sufficiency.

“We review de novo a district court’s decision to grant a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6).” Middlebrooks v. Parker, 15 F.4th

784, 789 (6th Cir. 2021). “To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a facially

plausible claim requires courts to construe the complaint in a light most favorable to the plaintiff,

accept all well-pleaded factual allegations as true, and decide whether there is enough factual

content to allow ‘the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.’” Mich. First Credit Union v. T-Mobile USA, Inc., 108 F.4th 421, 425 (6th

Cir. 2024) (quoting Iqbal, 556 U.S. at 678).

Similarly, “[w]e review de novo the district court’s ruling on a Rule 12(b)(1) motion to

dismiss.” Am. Reliable Ins. Co. v. United States, 106 F.4th 498, 504 (6th Cir. 2024). In

reviewing the district court’s dismissal for lack of subject-matter jurisdiction, we “must construe

the complaint in the light most favorable to the Plaintiffs; however, the Court need ‘not presume

the truth of factual allegations pertaining to our jurisdiction to hear the case.’” Skatemore, Inc. v.

Whitmer, 40 F.4th 727, 731–32 (6th Cir. 2022) (quoting Russell v. Lundergan-Grimes, 784 F.3d

1037, 1045 (6th Cir. 2015)). “The party invoking federal jurisdiction bears the burden of

proving that we have jurisdiction over a given claim.” Carman v. Yellen, 112 F.4th 386, 399 (6th

Cir. 2024).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 7

B. Individual-Capacity Claims

We first address Cooperrider’s claims against Defendants in their individual capacities.

Cooperrider seeks damages under 42 U.S.C. § 1983 from Defendants for their alleged violations

of his First Amendment and due-process rights. The district court determined that all of

Cooperrider’s claims against Defendants in their individual capacities were barred by the

doctrines of absolute and qualified immunity. R. 26 (Mem. Op. and Order I at 12–13) (Page ID

#420–21); R. 33 (Mem. Op. and Order II at 9) (Page ID #497). We consider the district court’s

application of each form of immunity, as applied to each Defendant, in turn.

1. Absolute Immunity

The district court held that all three DABC officials against whom Cooperrider brought

suit—Newton, Woods, and Taylor—were entitled to absolute immunity for their actions taken in

furtherance of DABC’s enforcement action against Brewed. “We review a district court’s grant

of absolute immunity de novo.” Turner v. Lowen, 823 F. App’x 311, 317 (6th Cir. 2020) (citing

Moldowan v. City of Warren, 578 F.3d 351, 373–74 (6th Cir. 2009)). At the same time, “[t]he

burden of justifying absolute immunity rests on the official asserting the claim.” Harlow v.

Fitzgerald, 457 U.S. 800, 812 (1982). On appeal, Newton, Woods, and Taylor bear the burden

of proving their entitlement to absolute immunity.

a. Newton

“Absolute prosecutorial immunity . . . is a common law principle that shields a prosecutor

from § 1983 liability.” Cooper v. Parrish, 203 F.3d 937, 946 (6th Cir. 2000). The Supreme

Court has long held that prosecutors are entitled to absolute immunity for actions taken within

the scope of their duties “in initiating a prosecution and in presenting the State’s case.” Imbler v.

Pachtman, 424 U.S. 409, 430–31 (1976); see also Prince v. Hicks, 198 F.3d 607, 611 (6th Cir.

1999) (“A prosecutor is entitled to absolute immunity when that prosecutor acts ‘as an advocate

for the State’ and engages in activity that is ‘intimately associated with the judicial phase of the

criminal process.’”) (quoting Imbler, 424 U.S. at 430–31).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 8

“The Supreme Court has endorsed a ‘functional’ approach for determining whether an

official is entitled to absolute prosecutorial immunity, explaining that a court should look to ‘the

nature of the function performed, not the identity of the actor who performed it.’” Cooper, 203

F.3d at 946–47 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). This approach “focuses

on whether the prosecutor’s activities are ‘intimately associated with the judicial phase of the

criminal process.’” Id. (quoting Imbler, 424 U.S. at 430). So, under the functional approach, we

have held that “[a]bsolute immunity extends to a prosecutor’s conduct in ‘initiating a prosecution

and in presenting the [government’s] case’” as well as “the ‘administrative or investigative acts

necessary for a prosecutor to initiate or maintain the criminal prosecution.’” Rieves v. Town of

Smyrna, 959 F.3d 678, 691 (6th Cir. 2020) (first quoting Imbler, 424 U.S. at 431) (then quoting

Ireland v. Tunis, 113 F.3d 1435, 1447 (6th. Cir. 1997)).

Applying the functional approach, the Supreme Court “has extended absolute immunity

to certain others who perform functions closely associated with the judicial process.” Cleavinger

v. Saxner, 474 U.S. 193, 200 (1985). Specifically, in Butz v. Economou, the Court held that the

protections of absolute immunity extend to administrative agency officials “who are responsible

for the decision to initiate or continue a proceeding subject to agency adjudication.” 438 U.S.

478, 516 (1978)4; see also Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (stating that

absolute prosecutorial immunity “also extends beyond the criminal process to conduct in civil

proceedings where a government attorney is operating in an enforcement role in ‘initiating . . .

judicial proceedings’”) (quoting Cooper, 203 F.3d at 947). The question before us, then, is

whether Newton, DABC’s general counsel and the person responsible for initiating and

4

Cooperrider argues that Butz is inapplicable here because that case, involving the United States

Department of Agriculture, extended absolute immunity only to persons “performing adjudicatory functions within a

federal agency.” 438 U.S. at 514. Specifically, Cooperrider argues that “[t]he entirety of the analysis in Butz rests

upon the fact that significant Administrative Procedure Act protections are afforded in federal matters” such that the

same logic does not extend to state agency officials, who are not bound by the APA. Appellant Br. at 24–25. But

we squarely addressed this question decades ago in Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en banc). In

that case, we concluded that it followed from the Supreme Court’s conclusion in Butz “that state officials subject to

restraints comparable to those imposed by the Administrative Procedure Act and performing adjudicatory functions

in resolving potentially heated controversies are entitled to absolute immunity from damages liability for their

judicial acts.” Watts, 978 F.2d at 273. Driving home the point, we stated that “the case law in this circuit and

elsewhere is very clear: public policy requires absolute immunity for officials performing quasi-prosecutorial or

quasi-judicial functions, at least where protections such as those provided by the Administrative Procedure Act are

in place.” Id. at 274 (emphasis added). The protections of absolute immunity therefore apply with equal force to

state agency officials performing judicial and prosecutorial functions as they do to federal agency officials.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 9

continuing the enforcement action against Brewed, functioned in a prosecutorial role in initiating

and continuing those proceedings. See Newton Br. at 6–14. We answer that question in the

affirmative.

To determine whether an individual public official is entitled to absolute immunity, “we

examine the nature of the functions with which a particular official or class of officials has been

lawfully entrusted” and “evaluate the effect that exposure to particular forms of liability would

likely have on the appropriate exercise of those functions.” Forrester, 484 U.S. at 224. The

complaint alleges that Newton, in his role as DABC general counsel, made the discretionary

decision to initiate and continue an enforcement proceeding against Brewed. R. 1 (Compl. at

¶ 20) (Page ID #5) (stating that Newton sent emails “reflect[ing] a concerted effort to deprive

Plaintiffs of their alcohol licenses”); id. at ¶ 18, 31 (Page ID #5, 8) (referring to all Defendants,

including Newton, collectively). These allegations are supported by the fact that Newton signed

and served Brewed with the NOV, putting Cooperrider on notice that DABC had initiated an

administrative proceeding before the Alcoholic Beverage Control Board and sought to revoke or

suspend Brewed’s alcohol license. R. 23–4 (NOV at 1) (Page ID #354). And the recommended

order issued by the hearing officer lists Newton as having represented DABC at the revocation

hearing. R. 8–2 (Rec. Order at 1) (Page ID #119).

Newton’s role in the license-revocation proceeding appears to have been a

quintessentially prosecutorial one: initiating, and then litigating, an enforcement proceeding

against Brewed that resulted in an agency adjudication revoking its alcohol license. See, e.g.,

Kovacic v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 694 (6th Cir. 2013)

(holding that social workers, who “often engage in prosecutorial functions when carrying out

their duties,” are “entitled to absolute immunity when they engage in conduct ‘intimately

associated with the judicial phase of the criminal process’” such as “initiating court actions or

testifying under oath” in child-welfare proceedings) (quoting Pittman v. Cuyahoga Cnty. Dep’t

of Child. & Fam. Servs., 640 F.3d 716, 724 (6th Cir. 2011)). The critical question is whether

Newton was “functioning in an enforcement role and acting as [an] advocate[] for the state in

initiating and prosecuting judicial proceedings,” in which case he is “entitled to an absolute

immunity defense.” Cooper, 203 F.3d at 947. We conclude that Newton was.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 10

Our conclusion tracks with that of the Fifth Circuit, which addressed this very question in

Spec’s Family Partners, Ltd. v. Nettles, 972 F.3d 671 (5th Cir. 2020). There, a liquor store chain

operator brought a civil-rights action against Texas Alcoholic Beverage Commission (“TABC”)

officials who had refused to renew the business’s alcohol permits and who had advocated against

the granting of new permits for additional chain locations. Id. at 675. The Fifth Circuit

determined that the officials’ challenged conduct in placing administrative holds on permits,

protesting the granting of new permits, and making decisions regarding renewal permits “was

akin to prosecutors intimately involved in judicial proceedings and therefore ‘entitled to absolute

immunity from suit.’” Id. at 678 (quoting Disraeli v. Rotunda, 489 F.3d 628, 632 (5th Cir.

2007)). The Fifth Circuit thus held that the TABC officials “were functioning in quasi-

prosecutorial roles as the State’s advocate in a way ‘intimately associated with’ judicial

proceedings.” Id. at 679 (quoting Imbler, 424 U.S. at 431); see also Romano v. Bible, 169 F.3d

1182, 1187 (9th Cir. 1999) (holding that members of the Nevada Gaming Control Board were

entitled to absolute quasi-prosecutorial immunity from damages liability in a § 1983 action

arising from disciplinary proceedings against a former gaming licensee, where the Board acted as

a prosecutor in investigating and deciding to file a complaint against the licensee and entered

into settlement negotiations with him); Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365,

1373 (8th Cir. 1996) (holding that a child-welfare officer who initiated proceedings in state court

leading to the award of temporary protective custody of a child to the state acted in a role that

“was functionally comparable to that of a prosecutor” and thus was “absolutely immune from

liability”); Glunk v. Pennsylvania State Bd. of Med., 687 F. App’x 196, 202 (3d Cir. 2017)

(holding that prosecutors in a disciplinary proceeding brought by the state board of medicine

against a physician were absolutely immune from suit for money damages, where the proceeding

resulted in a 60-day suspension of doctor’s medical license and a fine).

Like the officials in Nettles, Newton functioned in a quasi-prosecutorial role in initiating

and prosecuting the enforcement action against Brewed. Newton exercised his discretion in

deciding to initiate the license-revocation proceeding, and then acted as an advocate for the state

in continuing to argue for the revocation of Brewed’s license, up to and including his

representation of DABC at the administrative hearing. Newton’s role was one “intimately

associated” with the agency’s adjudicatory proceedings. Imbler, 424 U.S. at 431. Newton is

No. 24-5351 Cooperrider et al. v. Woods et al. Page 11

therefore protected from damages liability under the doctrine of absolute quasi-prosecutorial

immunity. The district court did not err in dismissing Cooperrider’s claims against Newton in

his individual capacity.

b. Woods and Taylor

Like the doctrine of prosecutorial immunity, the doctrine of absolute judicial immunity

has long been recognized at common law as necessary to “shield[] judges from collateral attacks

challenging a judge’s actions taken in her official judicial capacity.” Morgan v. Bd. of Pro.

Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 518 (6th Cir. 2023). “This immunity is absolute: all

of a judge’s actions taken in an official judicial capacity are immune from suit.” Id. And as it

has for absolute prosecutorial immunity, the Supreme Court has extended the protections of

absolute judicial immunity to “non-judicial officers who perform ‘quasi-judicial’ duties.” Bush

v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (quoting Joseph v. Patterson, 795 F.2d 549, 560 (6th

Cir. 1986)). So, when the Supreme Court in Butz determined that administrative agency officials

performing quasi-prosecutorial functions were entitled to absolute immunity, it also held that

those individuals “performing adjudicatory functions within a[n] . . . agency are entitled to

absolute immunity from damages liability for their judicial acts.” Butz, 438 U.S. at 514.5

We employ the same “functional” approach in determining whether state administrative

officials performing quasi-judicial duties are entitled to absolute immunity. Forrester, 484 U.S.

at 229. Under that approach, we look to “the nature of the function being performed rather than

the identity of the actor performing it.” McKenzie, Grant, Konvalinka & Harrison, PC v. Banks

(In re McKenzie), 716 F.3d 404, 412 (6th Cir. 2013). Here, Woods and Taylor—DABC’s

commissioner and malt beverage administrator, respectively—argue that they acted in a quasi-

5

The dissent takes issue with the notion that absolute judicial immunity may extend to individuals outside

of the judicial branch. Dissent at 35. But the doctrine of quasi-judicial immunity is not a novel one. Instead, it is a

well-settled principle of law that certain non-judicial governmental officials are entitled to absolute immunity from

suit for their performance of “quasi-judicial” duties. See, e.g., Bush, 38 F.3d at 847; Joseph, 795 F.2d at 560;

Johnson v. Granholm, 662 F.2d 449, 450 (6th Cir. 1981) (per curiam); Denman v. Leedy, 479 F.2d 1097, 1098 (6th

Cir. 1973) (per curiam); Hurlburt v. Graham, 323 F.2d 723, 725 (6th Cir. 1963). So the suggestion that the

application of absolute immunity to “any official, from any branch of government” is impermissible directly

contradicts our longstanding precedent. Dissent at 35.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 12

judicial capacity when they issued the final order revoking Brewed’s alcohol license. Woods

and Taylor Br. at 11–13. We agree.

While we lack the benefit of precedent as to whether state agency commissioners who

suspend or revoke liquor licenses enjoy absolute immunity—in fact, we expressly reserved any

decision on this exact question in Flying Dog Brewery, LLLP v. Michigan Liquor Control

Comm’n, 597 F. App’x 342, 349 (6th Cir. 2015) (“We expressly do not . . . consider whether the

Hearing Commissioners who suspend or revoke liquor licenses in disciplinary cases are entitled

to quasi-judicial immunity.”)—our en banc decision in Watts v. Burkhart provides guidance.

Watts involved a Tennessee physician who brought a § 1983 action against members of the

Tennessee Board of Medical Examiners, in their individual capacities, for their roles in presiding

over an administrative hearing to determine whether Watts had prescribed controlled substances

in unsafe quantities and summarily suspending his medical license. 978 F.2d at 271.

Determining that “the quasi-judicial function exercised by the defendants in the case at bar

appears comparable to functions that have long been accorded absolute immunity at common

law” and that the members of the board were “subject to restraints and safeguards comparable to

those built into the archetypal judicial process,” we concluded that the board members were

entitled to absolute quasi-judicial immunity. Id. at 275, 278.

In the years following Watts, we have applied its logic in affording absolute immunity to

members of a state board of education for their role in overseeing administrative hearings and

adjudicating the removal of members of a county board of education, Hale v. Cody, 188 F.3d 507

(6th Cir. 1999) (table) (per curiam), as well as members of a state parole board for their role in

scheduling parole hearings and making parole determinations, Hughes v. Duncan, 93 F.4th 374,

381 (6th Cir. 2024). On the other hand, we have declined to extend the protection of absolute

immunity to members of a university faculty grievance committee for their role in handling a

faculty member’s tenure-denial grievance, Purisch v. Tennessee Tech. Univ., 76 F.3d 1414, 1422

(6th Cir. 1996); to the director of a state bar association for his alleged conduct in threatening a

picketer outside his residence, Dean v. Byerley, 354 F.3d 540, 557 (6th Cir. 2004); or to the

members of a state environmental-quality department for their actions related to the water crisis

in Flint, Michigan, Boler v. Earley, 865 F.3d 391, 416 (6th Cir. 2017).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 13

Watts and its progeny articulate a set of factors that inform our analysis as to whether an

agency official is entitled to quasi-judicial immunity. First, we look to whether the officials’

“positions are akin to that of judges.” Purisch, 76 F.3d at 1422 (quoting Watts, 978 F.2d at 278).

Second, we determine whether “the potential for vexatious lawsuits is great.” Id. Third, we

determine whether “enough safeguards exist to protect [the complainant’s] constitutional rights.”

Id. We conclude that Woods and Taylor, acting in their roles as adjudicators of DABC licensure

revocation proceedings, meet all three criteria.6

First, Woods and Taylor performed a function “normally performed by an adjudicator,”

Dean, 354 F.3d at 556. As agency heads, Woods and Taylor are authorized by statute to oversee

the conduct of administrative hearings and to delegate the power to issue recommended orders to

subordinate hearing officers. Ky. Rev. Stat. § 13B.030(1). Once a hearing officer has issued a

recommended order, the agency heads must “consider the record including the recommended

order and any exceptions duly filed to a recommended order” and determine whether to accept

the hearing officer’s recommendation, to modify it, or to reject it. Ky. Rev. Stat. § 13B.120(1)–

(2). The agency heads then issue a final order, “in writing and stated in the record”; “[i]f the

final order differs from the recommended order, it shall include separate statements of findings

of fact and conclusions of law.” Ky. Rev. Stat. § 13B.120(3). Once issued, a final order is

immediately appealable to the state circuit court. Ky. Rev. Stat. § 13B.140(1). This function—

issuing final orders in administrative adjudications following the issuance of a recommended

order by an inferior adjudicator—is analogous to that of a judge reviewing a report and

recommendation issued by a magistrate judge and making a final determination to accept,

modify, or depart from the magistrate judge’s recommendation. See Fed. R. Civ. P. 72(b). Here,

while the hearing officer directly overseeing Brewed’s license revocation hearing played the role

of a magistrate judge, Woods and Taylor, in issuing the final order—which reviewed the hearing

officer’s findings and made its own statements of fact and conclusions of law—played the role of

6

The dissent contends that we apply the three-factor Watts test in error and instead applies a six-factor test

set out by the Supreme Court in Cleavinger. Dissent at 39. But Watts, a case decided by an en banc panel of this

court, was issued seven years after Cleavinger. And, as the dissent notes, we repeatedly cited Cleavinger in coming

to our conclusion in Watts. Dissent at 39; Watts, 978 F.2d at 276. So while we are bound by Supreme Court

precedent, the subsequent Watts en banc decision provides binding precedent with respect to the applicable test for

determining an individual’s entitlement to absolute quasi-judicial immunity.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 14

the district judge. R. 8–2 (Final Order at 1–7) (Page ID #111–17). This factor therefore weighs

in favor of granting Woods and Taylor absolute quasi-judicial immunity.7

Second, the cases Woods and Taylor decide as DABC agency heads are “sufficiently

controversial that, in the absence of immunity, [they] would be subject to numerous damages

actions.” Bon-Ing, Inc. v. Hodges, 700 F. App’x 461, 464 (6th Cir. 2017). Woods and Taylor

issue orders suspending and revoking licenses to sell alcoholic beverages. Each of these orders

creates an aggrieved business owner likely to be displeased with an adverse outcome. As a

result, both agency heads’ ability to operate “would undoubtedly be hindered if they were

routinely sued for damages” for suspending and revoking alcohol licenses. Flying Dog, 597 F.

App’x at 350. So, to “assure that [Woods and Taylor] can perform [their] functions without

harassment or intimidation,” Cleavinger, 474 U.S. at 202, it is necessary that their adjudicatory

actions be shielded from vexatious damages suits. See Purisch, 76 F.3d at 1422. This factor also

weighs in favor of granting absolute immunity to Woods and Taylor.

Finally, a number of regulatory safeguards established by Kentucky law protect those

subjected to license-revocation proceedings, “tend[ing] to reduce the need for private damages

actions as a means of controlling unconstitutional conduct.” Hughes, 93 F.4th at 379 (quoting

Butz, 438 U.S. at 512). Chapter 13B of the Kentucky Revised Statutes sets forth the rules

governing administrative hearings—the right to which is guaranteed by law under Ky. Rev. Stat.

7

The dissent contends that this factor instead cuts against Woods and Taylor because “[t]he administrators

here don’t look much like judges.” Dissent at 39. In particular, the dissent emphasizes the fact that Woods and

Taylor “are state employees—subordinate to the governor” and do not have removal protections or serve fixed

terms. Id. True, although department heads are appointed by the governor for “terms not exceeding four (4) years,”

these officials “may be removed from office by the Governor for any cause the Governor deems sufficient.” Ky.

Rev. Stat. §§ 12.040(1), 63.080(1). But the fact that Woods and Taylor, as department heads, do not enjoy removal

protections does not mean that they serve any less of an adjudicatory role. Such a conclusion would be in direct

conflict with our precedent. See, e.g., Hughes, 93 F.4th at 380–81 (holding that members of the Tennessee Board of

Parole are entitled to absolute quasi-judicial immunity even though the Board members are appointed by the

governor because, unlike the prison discipline committee at issue in Cleavinger, the Board members are not “direct

subordinates of the warden who reviews their decision”) (quoting Cleavinger, 474 U.S. at 204). Here, like the

parole board members in Hughes, Woods and Taylor, although appointed by the governor to their positions, are not

direct subordinates to the governor but operate their department at their “direction and control.” Ky. Rev. Stat.

§ 12.040(1). Nor are their decisions as to the final revocation of alcohol licenses reviewable by the governor.

Regardless, in its analysis of this Watts factor, the dissent focuses on the wrong point. The test for whether

an administrative official is entitled to quasi-judicial immunity is a functional one; we ask not whether an individual

seems like a judge, but whether they act like a judge. Woods and Taylor, in issuing a final revocation order that

made its own findings of fact and conclusions of law, acted like judges in revoking Cooperrider’s license.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 15

§ 243.520—in the state, including license-revocation hearings before the DABC. Ky. Rev. Stat.

§ 13B.020(1). These rules provide extensive procedural safeguards to parties who appear at such

hearings. Prior to a hearing, the agency must provide at least twenty days of advance notice to

the parties. Ky. Rev. Stat. § 13B.050(1). That notice must include a statement advising the

parties of their right to legal counsel. Ky. Rev. Stat. § 13B.050(3)(f). At a hearing, the presiding

hearing officer must “afford all parties the opportunity to respond, present evidence and

argument, conduct cross-examination, and submit rebuttal evidence.” Ky. Rev. Stat.

§ 13B.080(4). Following a hearing, the hearing officer makes findings of facts “based

exclusively on the evidence on the record.” Ky. Rev. Stat. § 13B.090(1). The hearing officer

then drafts a recommended order, including her findings of fact, conclusions of law, and

recommended disposition of the hearing, which she submits to the agency head within sixty days

of receiving an official record of the hearing. Ky. Rev. Stat. § 13B.110(1). The recommended

order must be sent to each party, which has fifteen days to file exceptions to the

recommendations. Ky. Rev. Stat. § 13B.110(4). The agency head then issues a final order,

which must contain a statement advising parties of their appeal rights. Ky. Rev. Stat.

§ 13B.120(3). Finally, all final orders issued by agency heads are subject to judicial review in

the state circuit court. Ky. Rev. Stat. § 13B.140(1).

“Because these adversarial features of the [agency’s] hearing process ‘tend to enhance the

reliability of information and the impartiality of the decisionmaking process, there is a less

pressing need for individual suits to correct constitutional error.’” Hughes, 93 F.4th at 380

(quoting Butz, 438 U.S. at 512). And the availability of judicial review “tilts this factor toward

granting quasi-judicial immunity because any errors of [the agency heads] may be ‘largely

remediable through the appellate process.’” Flying Dog, 597 F. App’x at 352 (quoting Heyde v.

Pittenger, 633 F.3d 512, 519 (7th Cir. 2011)). These fulsome safeguards reduce the need for

private damages actions such as Cooperrider’s. See, e.g., Watts, 978 F.2d at 275–77 (holding

that the Tennessee Board of Medical Examiners was governed by adequate safeguards because it

was required to comply with Tennessee’s version of the Administrative Procedure Act).8

8

The dissent, while acknowledging that this factor “remains a close call,” reasons that this factor, too,

weighs against Woods and Taylor. Admitting that Kentucky statute provides “real procedural safeguards” to those

No. 24-5351 Cooperrider et al. v. Woods et al. Page 16

“‘[O]fficials who seek absolute immunity must squarely shoulder the burden of showing

that public policy demands an exemption [from damages liability] of that scope.’” Watts, 978

F.2d at 278 (quoting Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 784 n.15 (1st Cir.

1990)). Woods and Taylor can and do meet this burden, having shown that “their positions are

akin to that of judges,” “the potential for vexatious lawsuits is great,” and that there are “enough

safeguards” under Kentucky law to protect the constitutional rights of alcohol-license holders.

Id. They are therefore entitled to absolute immunity from damages.9 10

Cooperrider argues that our decision in Flying Dog forecloses granting absolute

immunity to Woods and Taylor. Appellant Br. at 27–28; see Flying Dog, 597 F. App’x at 352

(declining to extend absolute quasi-judicial immunity to members of the Michigan Liquor

subject to alcohol-license-revocation proceedings, the dissent nevertheless finds these safeguards inadequate to

protect licenseholders because “Taylor and Woods aren’t neutral hearing officers.” Dissent at 40. The dissent’s

main qualm appears to be that, under Kentucky’s statutory scheme, the department heads can reject or modify a

hearing officer’s recommended order, as was the case here. Ky. Rev. Stat. § 13B.120(2). But if the agency heads

modify or reject a recommended order in any way, the final order must “include separate statements of findings of

fact and conclusions of law.” Ky. Rev. Stat. § 13B.120(3). And, as discussed, the agency’s final order is

immediately appealable. So the dissent’s fears of agency heads engaging in freewheeling, partisan conduct is

vitiated by the statute’s careful, multi-level procedural structure.

9

This conclusion is consistent with the Seventh Circuit’s decision in Killinger v. Johnson, 389 F.3d 765

(7th Cir. 2004). There, the Seventh Circuit considered the question of whether a village mayor, serving in his role as

local liquor-control commissioner, was entitled to absolute quasi-judicial immunity in a § 1983 suit brought by an

aggrieved bar owner over the suspension of his liquor license. Id. at 768. The Seventh Circuit concluded that the

mayor was so entitled, determining that the mayor was “performing a judicial function when he temporarily closed

[the bar], fined Killinger, and suspended his license.” Id. at 770. The court also noted the importance of regulatory

protections under Illinois law guiding the mayor’s exercise of authority in his role as liquor commissioner, including

notice and hearing requirements, evidentiary protections, and the availability of judicial review. Id. (citing Ill. Rev.

Stat. ch. 43, ¶ 153 (1983)).

10

As stated above, the dissent argues that we should instead apply the six factors set forth in Cleavinger in

evaluating Woods’s and Taylor’s entitlement to absolute immunity. But even if we were to evaluate this issue under

Cleavinger’s factors, we would reach the same conclusion as we reach under those set forth in Watts. Those factors

are “(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the

presence of safeguards that reduce the need for private damages as a means of controlling unconstitutional conduct;

(c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and

(f) the correctability of error on appeal.” Cleavinger, 474 U.S. at 202. The third and fourth factors arguably cut

against granting absolute immunity to Woods and Taylor, who are appointed by and removable at will by the

governor and who, in issuing final revocation orders, are not legally bound by precedent. But the first, second, fifth,

and sixth factors all favor granting absolute immunity in this circumstance: license revocation proceedings are

fraught, and DABC adjudicators need to do their jobs without threat of harassment; a multitude of safeguards protect

the due-process rights of licenseholders in revocation proceedings; license revocation proceedings are undoubtedly

adversarial; and final revocation orders are immediately appealable to the appropriate state circuit court. So while

not every factor leans in favor of granting absolute immunity to Woods and Taylor, the Cleavinger factors weigh in

favor of granting such immunity.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 17

Control Commission for their role in denying a brewery’s license to sell their beer in the state).

But as discussed above, we expressly declined in Flying Dog to address the question presented

here. Id. at 349. And the factual differences between the actions taken by the commissioners in

Flying Dog and the actions taken by Woods and Taylor distinguish the two cases. First, “[t]he

Commission’s rules . . . provide more extensive procedural safeguards to parties who appear

before the Hearing Commissioners due to liquor violations than to parties who appear before the

Administrative Commissioners on initial licensing matters.” Id. at 350. And unlike the

commissioners in Flying Dog, Wood and Taylor were required by regulation “to explain their

decisions through findings of fact and conclusions of law.” Id. at 351. Additionally, while the

licensure proceeding in Flying Dog lacked many of the adversarial characteristics of a judicial

proceeding, the license revocation hearing in this case involved the opportunity for both parties

to present evidence and argument, the presentation and examination of witnesses, and the ability

to make and record evidentiary objections. See Ky. Rev. Stat. § 13B.080(4).

Woods and Taylor exercised functions more comparable to those of judges, and were

subject to more restraints and safeguards, than the agency officials in Flying Dog. Both Woods

and Taylor are entitled to absolute immunity. Accordingly, we affirm the district court’s

dismissal of Cooperrider’s claims for damages against Woods and Taylor in their individual

capacities based on absolute immunity.

2. Qualified Immunity

The district court determined that Cooperrider’s individual-capacity claims against the

remaining Defendants—Beshear, Perry, and Duke—were barred by the doctrine of qualified

immunity. R. 26 (Mem. Op. and Order I at 13) (Page ID #421). We review the district court’s

qualified-immunity determination de novo. Adams v. Hanson, 656 F.3d 397, 401 (6th Cir.

2011).

“The doctrine of qualified immunity provides that ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Skatemore, 40 F.4th at 738 (quoting Williams v.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 18

Maurer, 9 F.4th 416, 430 (6th Cir. 2021)). “While the defendant ‘bears the burden of pleading’ a

qualified immunity defense, ‘[t]he ultimate burden of proof is on the plaintiff to show that the

defendant is not entitled to qualified immunity.’” Palma v. Johns, 27 F.4th 419, 427 (6th Cir.

2022) (quoting Estate of Hill v. Miracale, 853 F.3d 306, 312 (6th Cir. 2017)) (brackets in

original).

Because Beshear, Perry, and Duke all raised qualified-immunity defenses in their

motions to dismiss, R. 7 (Perry Mot. to Dismiss at 11) (Page ID #70), R. 8 (Beshear Mot. to

Dismiss at 16–17) (Page ID #92–93), R. 9 (Duke Mot. to Dismiss at 10–11) (Page ID #178–79),

the burden rests with Cooperrider on appeal to show that no Defendant is entitled to qualified

immunity. “To overcome a qualified immunity defense, the plaintiff must show (1) that the

defendant violated his federal rights and (2) that the ‘contours of the right’ were sufficiently clear

that ‘a reasonable offic[ial] in the defendant’s position should have known his conduct violated

that right.’” Ramsey v. Rivard, 110 F.4th 860, 866 (6th Cir. 2024) (quoting Gardenhire v.

Schubert, 205 F.3d 303, 311 (6th Cir. 2000)).

We have repeatedly cautioned, however, that “it is generally inappropriate for a district

court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v.

Campbell, 779 F.3d 421, 433 (6th Cir. 2015). Although the Supreme Court has directed that

“qualified immunity is a threshold question to be resolved at the earliest possible point in the

proceedings,” Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003), “that point is usually

summary judgment and not dismissal under Rule 12,” Wesley, 779 F.3d at 433–34. This is

because, “‘[a]bsent any factual development beyond the allegations in a complaint, a court

cannot fairly tell whether a case is “obvious” or “squarely governed” by precedent, which

prevents us from determining whether the facts of this case parallel a prior decision or not’ for

purposes of determining whether a right is clearly established.” Guertin v. State, 912 F.3d 907,

917 (6th Cir. 2019) (quoting Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch.

Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring)). Thus, “even though we retain

jurisdiction over this type of appeal, this Court generally denies qualified immunity at the motion

to dismiss stage in order for the case to proceed to discovery, so long as the plaintiff states a

plausible claim for relief.” Marvaso v. Sanchez, 971 F.3d 599, 606 (6th Cir. 2020).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 19

Here, the district court found that Cooperrider’s complaint failed plausibly to allege a

First Amendment retaliation claim, substantive-due-process claim, or procedural-due-process

claim. R. 26 (Mem. Op. and Order I at 12–13) (Page ID #420–21). Having determined that

Cooperrider failed to plead facts demonstrating the violation of any constitutional right, the

district court did not proceed to an analysis of whether the at-issue rights were clearly

established. We evaluate the district court’s determination as to each claim in turn.

a. First Amendment Retaliation

Cooperrider argues that Beshear, Perry, and Duke violated his First Amendment rights by

retaliating against him for his critical social-media activity by initiating the enforcement action

against Brewed. Appellant Br. at 15. “To prove a First Amendment retaliation claim, a plaintiff

must show: (1) he engaged in protected speech; (2) the defendant took an adverse action against

him; and (3) there is a causal connection between the protected speech and the adverse action.”

Josephson v. Ganzel, 115 F.4th 771, 783 (6th Cir. 2024). All parties agree that Cooperrider

engaged in protected speech when he wrote critically of the Governor and his administration’s

response to the COVID-19 pandemic. The question before us, then, is whether Cooperrider

adequately pleaded an adverse action taken by the Defendants—i.e., the initiation and

continuation of enforcement proceedings against Brewed and the permanent revocation of

Brewed’s alcohol license—and that the action was causally connected to Cooperrider’s protected

speech. The district court determined that the complaint failed plausibly to allege a First

Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 16–19) (Page ID #424–27). We

disagree.

First, Cooperrider adequately pleaded an adverse action: that Beshear, Perry, and Duke

directed and oversaw the enforcement proceeding against Brewed and the ultimate revocation of

Brewed’s alcohol license. For First Amendment retaliation purposes, an adverse action is one

that “would chill or silence a ‘person of ordinary firmness’ from future First Amendment

activities.” Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (en banc) (quoting

Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)). “Any adverse actions, other than

‘those that create only de minimis negative consequences,’ can ‘offend the Constitution.’”

Josephson, 115 F.4th at 787 (quoting Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir. 2021)).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 20

Critically, “[w]hether an alleged adverse action is sufficient to deter a person of ordinary

firmness is generally a question of fact.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583–84

(6th Cir. 2012). “The adverse nature of a particular action ‘will depend on context.’” Josephson,

115 F.4th at 787 (quoting Bell v. Johnson, 308 F.3d 594, 602–03 (6th Cir. 2002)). “As a result,

retaliation claims based on all but genuinely ‘inconsequential’ official actions ‘should go to the

jury.’” Id. (quoting Bell, 308 F.3d at 603).

Here, Cooperrider alleges that Beshear, Perry, and Duke chose to initiate11 and continue12

an enforcement action against Brewed, resulting in the revocation of Brewed’s license to serve

alcohol. We have repeatedly found similar actions sufficiently adverse to meet this element of a

retaliation claim. See, e.g., Josephson, 115 F.4th at 787 (holding that a school’s decision not to

renew a teacher’s contract was “a traditional example of an adverse action”); Holzemer v. City of

Memphis, 621 F.3d 512, 520 (6th Cir. 2010) (affirming the district court’s holding that a

government employee’s “dilatory tactics with respect to reissuing permits . . . amounted to

adverse acts that would deter a person of ordinary firmness from engaging in the protected

petitioning activity”); Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 725–26 (6th Cir. 2010)

(holding that an allegation that Township officials had threatened to revoke a resident’s special-

use permit was sufficient to show an adverse action at the pleading stage). The complaint’s

allegation that Defendants made the decision to commence license-revocation proceedings

11

In his brief, Governor Beshear states that Cooperrider “conceded in [his] Complaint that the institution of

the ABC enforcement action was not adverse, admitting ABC initiated the action in response to Appellants’ ‘non-

compliance with [public health] orders.’” Beshear Br. at 17 (quoting R. 1 (Compl. at ¶ 18) (Page ID #5)). The

Governor is incorrect that Cooperrider concedes this point. The complaint merely states that “Defendants instituted

an enforcement action against Plaintiff, seeking the revocation of its Alcohol Licenses . . . on or about November 25,

2020, for non-compliance with those orders.” R. 1 (Compl. at ¶ 18) (Page ID #5). And “government actions, which

standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part

by a desire to punish an individual for exercise of a constitutional right.” Thaddeus-X, 175 F.3d at 386. Here,

Cooperrider alleges that, even if in part motivated by Brewed’s failure to follow public health laws, Defendants’

decision to initiate the enforcement proceeding against Brewed was also motivated, and substantially so, by

Defendants’ desire to retaliate against him for his protected speech.

12

The district court held, and Defendants now argue on appeal, that it would be “illogical to suggest that

the continuation of [an action] that was already under way could possibly be retaliatory.” R. 26 (Mem. Op. and

Order I at 16) (Page ID #424) (quoting Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir. 2020)). But Cooperrider’s

claim is not that Defendants merely continued the ongoing enforcement action against Brewed; instead, it is that

they continued the action despite the intervening passage of legislation that should have, in Cooperrider’s view,

rendered the action baseless. And it is not illogical to suggest that the continuation of an action rendered baseless by

intervening law could have been retaliatory.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 21

against Brewed, on its face, supports a reasonable inference that Cooperrider suffered an adverse

action.

Second, the complaint contains sufficient facts demonstrating that “‘the adverse action

was motivated at least in part by [Cooperrider’s] protected conduct.’” Dye v. Off. of the Racing

Comm’n, 702 F.3d 286, 294 (6th Cir. 2012) (quoting Scarbrough v. Morgan Cnty. Bd. of Educ.,

470 F.3d 250, 255 (6th Cir. 2006)).13 To show causation, a complainant must point to “‘specific,

nonconclusory allegations’ reasonably linking her speech” to the adverse action. Bailey v. Floyd

Cnty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 144 (6th Cir. 1997) (quoting Wright v.

Illinois Dep’t of Child. & Fam. Servs., 40 F.3d 1492, 1500 (7th Cir. 1994)). Cooperrider’s

complaint does so. Accepting all well-pleaded factual allegations in the complaint as true,

Beshear, Perry, and Duke all (1) knew about Cooperrider’s critical social-media posts and

(2) decided to initiate the enforcement action against Brewed because of Cooperrider’s

comments.14 The complaint makes several allegations relating to the causation element,

including that “Defendants were each aware of, and angered by, the social media activity of the

Plaintiffs,” R. 1 (Compl. at ¶ 15) (Page ID #4); that Governor Beshear had, “in public statements

and speeches, directly addressed the speech of Plaintiffs, usually in a manner that expresse[d] his

anger at such speech,” id. at ¶ 16; that “Email communications by and between Defendants

Duke, Newton, and Taylor, in particular reflect a concerted effort to deprive Plaintiffs of their

alcohol licenses,” id. at ¶ 20 (Page ID #5); that “[i]nternal emails, communications, and

13

The district court, in determining that the complaint failed to allege causation, pointed to our holding in

Leonard v. Robinson that “[a] ‘motivating factor’ is essentially but-for cause—‘without which the action being

challenged simply would not have been taken.’” R. 26 (Mem. Op. and Order at 16) (Page ID #424) (quoting

Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir.

2002))). That holding stemmed from the Supreme Court’s decision in Mount Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977), in which the Court held that, “where constitutionally protected speech is ‘a ‘motivating

factor’’ in governmental action adverse to the plaintiff, the adverse action is unconstitutional . . . unless the same

action would have been taken ‘even in the absence of the protected conduct.’” Greene, 310 F.3d at 897 (quoting

Mount Healthy, 429 U.S. at 287). Critically, however, Leonard and Greene were both cases reviewing a district

court’s grant of summary judgment. Here, at the pleading stage, Cooperrider was required only to plausibly allege

that his speech was a motivating factor of the enforcement action. He does so. Whether or not the action would

have been taken in the absence of Cooperrider’s speech is a quintessential fact question to be inquired into during

the discovery process.

14

With respect to this allegation, which goes to Appellees’ state of mind in deciding to initiate and continue

the enforcement action against Brewed, we have noted that “[a] defendant’s motivation for taking action against the

plaintiff is usually a matter best suited for the jury.” Handy-Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir.

2012) (quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 22

witnesses have confirmed” that all Defendants “had knowledge of the existence of Brewed’s

[new and compliant public safety] plan, and deliberately chose to continue their illegal

enforcement action,” id. at ¶ 33 (Page ID #8); that “Beshear, Perry, and Duke each directed that

no . . . settlement be offered to Brewed, because the Defendants desired to punish Brewed and

Cooperrider for their First Amendment protected speech,” id. at ¶ 34 (Page ID #8–9); and that

Woods and Taylor, in revoking Brewed’s license, acted “in accord with directives they received

from Defendants Beshear, Perry, and Duke,” id. at ¶ 35 (Page ID #9). At this stage of the

proceedings, these allegations are adequate to allow a district court “to draw the reasonable

inference that the [Defendants are] liable for the misconduct alleged,” that is, that Beshear, Perry,

and Duke were substantially motivated to pursue alcohol license-revocation proceedings against

Brewed because of Cooperrider’s statements. See Iqbal, 556 U.S. at 678.

Defendants urge us to follow the lead of the district court, which decided the causation

element largely based on the gap in time between Cooperrider’s speech and the adverse action.

Beshear Br. at 19; Newton Br. at 19; Duke Br. at 14. Citing our decision in Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392 (6th Cir. 2010), the district court determined that “the long

duration between the Plaintiffs’ speech and the Defendants’ actions is a weak indicator, if any, of

causation.” R. 26 (Mem. Op. and Order I at 17) (Page ID #425); see Vereecke, 609 F.3d at 400

(“[T]he more time that elapses between the protected activity and the adverse employment

action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory

conduct to establish causality.’” (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524–

25 (6th Cir. 2008))). But Vereecke, like the rest of the cases the district court cited in support of

its conclusion,15 was decided at the summary-judgment stage. Here, at the pleading stage,

Cooperrider need only “allege[] facts ‘that would allow a jury to find that [the adverse action]

was motivated at least in part by’ [Cooperrider’s] speech.” Bright v. Gallia County, 753 F.3d

639, 653 (6th Cir. 2014) (quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).

15

The district court cited Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (upholding grant of

summary judgment where the adverse action occurred two to five months after employee filed EEOC and OCRC

charges) and Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022) (upholding grant of summary

judgment where passage of three months between employee’s complaint and his termination was a “firm indicator

of a lack of a causal link”).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 23

Cooperrider alleges that he “made ongoing posts and other speech critical of the

Governor and others . . . starting in November, 2020 and through March 24, 2022.” Appellant

Br. at 20; R. 1 (Compl. at ¶¶ 13–14) (Page ID #4). The enforcement action began on November

25, 2020. R. 1 (Compl. at ¶ 18) (Page ID #5). Cooperrider therefore claims that “mere days”

passed between his protected speech and the adverse action. Appellant Br. at 20. Whether that

claim is true is a question of fact inappropriate for resolution at this stage.

We conclude that the complaint succeeds in stating a First Amendment retaliation claim.

In coming to the opposite conclusion, the district court, by finding that almost all of

Cooperrider’s factual allegations were “conclusory,” R. 26 (Mem. Op. and Order I at 13) (Page

ID #421), fundamentally misapplied the pleading standard as articulated in Iqbal. That case and

its progeny in this court stand for the proposition that we need not accept as true “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,

556 U.S. at 678. The district court applied that proposition to find that the facts alleged in the

complaint “amount[ed] to nothing more than a ‘formulaic recitation of the elements’” of a First

Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 14) (Page ID #422) (quoting

Iqbal, 556 U.S. at 681). But the complaint contained far more than a mere recitation of the

elements of Cooperrider’s claim. It contained a number of factual allegations as to Defendants’

knowledge of Cooperrider’s highly critical speech and their decision to pursue an enforcement

proceeding against Brewed in retaliation for that speech. Whether those allegations should be

believed is a question of fact inappropriate for resolution at the pleading stage.16

Having concluded that the complaint successfully states a First Amendment retaliation

claim, we next address whether the right at issue was clearly established at the time of the

alleged violation. Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). In the

context of a motion to dismiss, “[t]he test is whether, reading the complaint in the light most

favorable to the plaintiff, it is plausible that an official’s acts violated the plaintiff’s clearly

16

As we observed in Mediacom Southeast LLC v. BellSouth Telecommunications, Inc., “[t]he district

court’s construction of Fed. R. Civ. P. 12(b)(6)—crediting the defendant’s, rather than the plaintiff’s version of

facts—unduly raises the pleading standard beyond the heightened level of Iqbal and Twombly, forcing the plaintiff’s

well-pleaded facts to be not only plausible, but persuasive. That is not the appropriate burden at this stage of the

litigation.” 672 F.3d 396, 400 (6th Cir. 2012). Similarly, here, the district court did not uniformly construe the

complaint in the light most favorable to the plaintiff in denying his First Amendment claim.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 24

established constitutional right.” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 562–63

(6th Cir. 2011). “The law is well settled in this Circuit that retaliation under color of law for the

exercise of First Amendment rights is unconstitutional.” Zilich v. Longo, 34 F.3d 359, 365 (6th

Cir. 1994). And we have “clearly stated that private citizens have a First Amendment right to

criticize public officials and to be free from retaliation for doing so.” Holzemer, 621 F.3d at 520.

We therefore conclude that the complaint plausibly alleges that Beshear, Perry, and Duke

violated Cooperrider’s clearly established right to criticize the state government without

retaliation. Accordingly, we reverse the district court’s grant of qualified immunity to Beshear,

Perry, and Duke as to Cooperrider’s First Amendment retaliation claim.

b. Substantive Due Process

Cooperrider contends that Beshear, Perry, and Duke violated his substantive-due-process

rights by arbitrarily depriving him of his property—i.e., Brewed’s alcohol license—despite the

intervening changes in Kentucky law that Cooperrider contends “completely foreclosed any of

the actions taken by Appellees after June [28], 2021.” Appellant Br. at 22 (emphasis omitted).17

The district court determined that the complaint failed to state a plausible claim that the

enforcement action was unconstitutionally arbitrary. R. 26 (Mem. Op. and Order I at 23) (Page

ID #431). We agree.

“The Due Process Clause of the Fourteenth Amendment protects citizens from

governmental deprivation of ‘life, liberty, or property, without due process of law.’” Kerchen v.

Univ. of Mich., 100 F.4th 751, 763 (6th Cir. 2024) (quoting U.S. Const. amend. XIV, § 1). The

doctrine of substantive due process commands that “governmental deprivations of life, liberty or

property are subject to limitations regardless of the adequacy of the procedures employed.”

Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (citation omitted). Among

other things, substantive due process “protects individuals against deprivations based on

17

Cooperrider also alleges “disparate treatment” in that DABC continued to pursue the enforcement action

against Brewed while settling other, similar cases such that he was unconstitutionally treated differently than

similarly situated businesses. Appellant Br. at 22 (citing Paterek v. Village of Armada, 801 F.3d 630 (6th Cir.

2015)). But it is the Equal Protection Clause, not the Due Process Clause, that “safeguards against the disparate

treatment of similarly situated individuals as a result of government action.” Paterek, 801 F.3d at 649. Cooperrider

does not raise an equal-protection claim. We therefore disregard Cooperrider’s argument as to his alleged disparate

treatment.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 25

‘arbitrary and capricious’ action,” or, in other words, “behavior from state actors that ‘shock[s]

the conscience.’” Kerchen, 100 F.4th at 763 (first quoting Bowers v. City of Flint, 325 F.3d 758,

763 (6th Cir. 2003)) (then quoting Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003)).

“When the conduct in question has been taken by an executive officer, the action violates

substantive due process only if it can be characterized as ‘arbitrary, or conscience shocking, in a

constitutional sense.’” Handy-Clay, 695 F.3d at 547 (quoting County of Sacramento v. Lewis,

523 U.S. 833, 847 (1998)). We have stated that “this characterization applies to ‘only the most

egregious official conduct, . . . conduct that is ‘so brutal and offensive that it [does] not comport

with traditional ideas of fair play and decency.’” Id. at 547–48 (first quoting Lewis, 523 U.S. at

846) (then quoting Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). This standard “sets a high

bar,” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014), and we have been careful to

emphasize that it “does not impose constitutional liability on all state actors who simply cause

harm,” Kerchen, 100 F.4th at 763.

Here, Cooperrider’s claim is that Beshear, Perry, and Duke “flagrantly ignored Kentucky

state law” in continuing the enforcement action against Brewed despite the intervening passage

of legislation. Appellant Br. at 23. Cooperrider plausibly pleaded the deprivation of a

protectable interest under the Constitution, that is, the revocation of Brewed’s alcohol license.

See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435 (6th Cir. 2005) (holding that a

holder of a liquor license has a constitutionally protected property interest in the license). The

question before us is therefore whether Beshear’s, Perry’s, and Duke’s “alleged role[s] in this

deprivation amounted to conscience-shocking behavior.” Kerchen, 100 F.4th at 763.

Even viewing the complaint in the most favorable light, we conclude that Cooperrider

fails to allege that Beshear, Perry, or Duke engaged in constitutionally arbitrary or conscience-

shocking conduct. Assuming that the three directed DABC to initiate the proceeding, the

decision to engage in disciplinary action against a state-licensed establishment found to be in

violation of state law does not shock the conscience. And the continuation of the enforcement

proceeding after the passage of HB1, HR 77, and HB192—particularly where it is unclear

whether any of the legislation was retroactive—“does not sink to the level of conscience-

shocking state action.” Gerber v. Herskovitz, 14 F.4th 500, 508 (6th Cir. 2021).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 26

“Where governmental action does not deprive a plaintiff of a particular constitutional

guarantee or shock the conscience, that action survives the scythe of substantive due process so

long as it is rationally related to a legitimate state interest.” Valot v. Se. Loc. Sch. Dist. Bd. of

Educ., 107 F.3d 1220, 1228 (6th Cir. 1997). At this stage of the litigation, Cooperrider “bear[s]

the burden to show that Defendants’ decision was not rationally related to a legitimate state

interest.” Id. He fails to carry that burden. As Beshear, Perry, and Duke all posit, Kentucky has

a legitimate governmental interest in regulating the sale of alcoholic beverages within its borders.

City of Newport v. Iacobucci, 479 U.S. 92, 96 (1986). The enforcement proceeding against

Brewed was based upon two independent violations of state alcohol regulations: Brewed’s

disregard of the Governor’s COVID-19 public-safety orders and Cooperrider’s disorderly

conduct. R. 23-3 (Emer. Susp. Order at 1–2) (Page ID #344–45). Defendants therefore had a

rational basis for pursuing the enforcement action. Because the complaint fails to state a

substantive-due-process claim, the district court correctly granted Beshear, Perry, and Duke

qualified immunity as to this claim.

c. Procedural Due Process

Finally, Cooperrider argues that he was afforded constitutionally inadequate process with

respect to the deprivation of Brewed’s alcohol license. Appellant Br. at 24. The district court

determined the complaint failed to allege a plausible procedural-due-process claim. R. 26 (Mem.

Op. and Order I at 20) (Page ID #428). We agree.

To establish a procedural-due-process claim in a § 1983 action, “plaintiffs must establish

three elements: (1) that they have a life, liberty, or property interest protected by the Due Process

Clause of the Fourteenth Amendment . . . , (2) that they were deprived of this protected interest

within the meaning of the Due Process Clause, and (3) that the state did not afford them adequate

procedural rights prior to depriving them of their protected interest.” Hahn v. Star Bank, 190

F.3d 708, 716 (6th Cir.1999). As discussed above, Cooperrider’s claim satisfies the first two

prongs of this test because, in revoking Brewed’s liquor license, the government deprived him of

property in which he had a constitutionally protected right. See Keego Harbor, 397 F.3d at 435.

The only question before us is whether Cooperrider was afforded adequate process prior to the

deprivation.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 27

Cooperrider does not dispute that he received notice and an opportunity to be heard prior

to the revocation of Brewed’s alcohol license. See R. 1 (Compl. at ¶ 31) (Page ID #8)

(acknowledging that Cooperrider was granted a hearing in front of the DABC prior to the

revocation of Brewed’s license). Cooperrider nevertheless argues that he was denied adequate

process because Defendants’ “personal animus permeated the end decision, rendering the result

[of the hearing] invalid.” Appellant Br. at 24. In support of this argument, Cooperrider cites

Williams v. Pennsylvania, a case in which the Supreme Court held that “under the Due Process

Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal

involvement as a prosecutor in a critical decision regarding the defendant’s case.” 579 U.S. 1, 8

(2016). There, the Court found a procedural-due-process violation where a state supreme court

justice, who as a district attorney had given approval to seek the death penalty against an

individual, failed to recuse himself and participated in the state supreme court’s decision to

reverse a state postconviction court’s grant of relief. Id. at 14. In so finding, the Court pointed

to its prior holdings that “an unconstitutional potential for bias exists when the same person

serves as both accuser and adjudicator in a case.” Id. at 8 (citing In re Murchison, 349 U.S. 133,

136–37 (1955)).

Williams is materially distinguishable. Here, although the complaint alleges that Beshear,

Perry, and Duke directed the enforcement action against Brewed, it fails to allege that any of the

three were involved in adjudicating the proceeding. In fact, Cooperrider admits that “there are

no claims asserted against the hearing officer” who adjudicated the revocation hearing.

Appellant Br. at 26. And the complaint fails otherwise to allege that any adjudicatory official

had “significant, personal involvement in a critical decision in [Cooperrider’s] case g[iving] rise

to an unacceptable risk of actual bias.” Williams, 579 U.S. at 14.18 The complaint therefore fails

to state a plausible claim of any procedural-due-process violation. The district court properly

18

To the extent that Cooperrider’s procedural-due-process claim stems from the alleged personal animus of

Woods and Taylor, as discussed in Part II.B.1.b, all claims against Woods and Taylor in their individual capacities

are barred by the doctrine of absolute immunity.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 28

granted qualified immunity to Beshear, Perry, and Duke as to Cooperrider’s procedural-due-

process claim.19

C. Claims Against Defendants in their Official Capacities

We next turn to Cooperrider’s claims against Defendants in their capacities as officers of

the Commonwealth of Kentucky. Cooperrider seeks injunctive relief in the form of an order

directing Defendants to cease the alleged ongoing violation of his First Amendment and due-

process rights. But in his complaint, Cooperrider identifies only one alleged ongoing violation:

the continued seizure of Brewed’s alcohol license. The district court was therefore correct to

dismiss Cooperrider’s official-capacity First Amendment and procedural-due-process claims.

1. Sovereign Immunity

The district court held that the doctrine of sovereign immunity barred Cooperrider’s First

Amendment and procedural-due-process claims against all Defendants in their official capacities.

R. 26 (Mem. Op. and Order I at 7) (Page ID #415). We review de novo a district court’s finding

that a defendant is entitled to sovereign immunity. Stanley v. W. Mich. Univ., 105 F.4th 856, 863

(6th Cir. 2024).

The Eleventh Amendment to the United States Constitution bars actions “against states

unless they consent to be sued or Congress, pursuant to a valid exercise of its power,

unequivocally expresses its intent to abrogate sovereign immunity.” Ashford v. Univ. of Mich.,

89 F.4th 960, 969 (6th Cir. 2024). That bar also applies to “state officers acting in their official

capacity” and “entities acting on behalf of the state.” Id. And “[a]lthough the text does not

explicitly say so, Eleventh Amendment immunity precludes suits brought against a State by its

own citizens.” Stanley, 105 F.4th at 863.

19

In conjunction with his argument that Cooperrider fails to state either a procedural- or substantive-due-

process claim, Governor Beshear argues that, even if Cooperrider had “set forth plausible due process claims,” we

should abstain from adjudicating Cooperrider’s due-process claims under the doctrine of Younger abstention.

Beshear Br. at 29–31 (citing Younger v. Harris, 401 U.S. 37 (1979)). According to Beshear, if we were to find

“error in the District Court’s ruling that Appellants have not raised cognizable procedural and substantive due

process claims, any such error is harmless because Younger abstention applies.” Id. at 31. But we find no error in

the district court’s rulings as to Cooperrider’s due-process claims. Accordingly, we need not reach this final point.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 29

There are exceptions to the sovereign-immunity bar, including, as relevant here, the

narrow exception recognized in Ex parte Young, 209 U.S. 123 (1908). That exception provides

that “suits against state officials seeking equitable relief for ongoing violations of federal law are

not barred by the Eleventh Amendment.” Mich. Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862,

867 (6th Cir. 2000). “But the Ex parte Young exception applies only when a plaintiff seeks and

clearly alleges ‘prospective’ equitable relief to stop ‘a continuing violation of federal law.’”

Josephson, 115 F.4th at 782 (quoting Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63

F.4th 510, 515 (6th Cir. 2023)). As a result, we “need only conduct a ‘straightforward inquiry

into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S 261, 296 (1997)).

We agree with the district court that sovereign immunity bars Cooperrider’s First

Amendment retaliation and procedural-due-process claims against Beshear, Perry, Duke,

Newton, Woods, and Taylor in their official capacities. The alleged violations underlying both

claims have concluded. With respect to the First Amendment claim, Defendants “finished”

retaliating against Cooperrider for his speech when they permanently revoked Brewed’s alcohol

license, and the complaint fails to allege any anticipated future acts of retaliation. With respect

to the procedural-due-process claim, the allegedly inadequate process of which Cooperrider

complains—that is, the process afforded him prior to the revocation of Brewed’s license—

concluded when the license was revoked. The complaint does not allege the ongoing violation of

his First Amendment or procedural-due-process rights.

We also agree with the district court that sovereign immunity does not apply to bar

Cooperrider’s substantive-due-process claim. “[S]tate officials may commit ‘ongoing’ violations

when they unconstitutionally retain possession of a person’s identifiable property.” Mikel v.

Quin, 58 F.4th 252, 257 (6th Cir. 2023). Here, the complaint alleges that Defendants violated

Cooperrider’s substantive-due-process rights by revoking Brewed’s alcohol license and seeks

prospective relief in the form of the reissuance of that license. That allegation falls squarely

within the Ex parte Young exception.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 30

2. Substantive Due Process

Because Cooperrider’s substantive-due-process claim falls within the Ex parte Young

exception, the doctrine of sovereign immunity does not bar Cooperrider from pursuing injunctive

relief against Defendants in their official capacities if he plausibly states a claim of the violation

of his substantive-due-process rights. As discussed in Part II.B.2.b, however, the complaint fails

to state adequately a substantive-due-process claim. So the district court properly dismissed

Cooperrider’s substantive-due-process claim against Defendants in their official capacities.

III. CONCLUSION

The district court correctly determined that Newton, Woods, and Taylor were entitled to

the protection of absolute quasi-prosecutorial and quasi-judicial immunity. It also correctly

determined that Beshear, Perry, and Duke were entitled to the protection of qualified immunity

for Cooperrider’s due-process claims because the complaint failed to state a plausible claim of

any due-process violation. And it correctly applied the doctrine of sovereign immunity to bar

Cooperrider’s claims against all Defendants in their official capacities. But the district court

erred in determining that Cooperrider failed to state a plausible First Amendment retaliation

claim and in granting qualified immunity to Beshear, Perry, and Duke on that claim.

We therefore AFFIRM the district court as to its dismissal of Newton, Woods, and

Taylor on the basis of absolute immunity; as to its grant of qualified immunity to Beshear, Perry,

and Duke on Cooperrider’s procedural- and substantive-due-process claims; and as to its

dismissal of Cooperrider’s claims against all Defendants-Appellees in their official capacities.

But we REVERSE the district court as to its dismissal of Beshear, Perry, and Duke on qualified-

immunity grounds as to Cooperrider’s First Amendment retaliation claim and REMAND for

further consideration consistent with this opinion.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 31

____________________________

CONCURRENCE / DISSENT

____________________________

THAPAR, Circuit Judge, concurring in part and dissenting in part. If the First

Amendment means anything, it means citizens have a right to criticize the government. But

when Andrew Cooperrider spoke out against COVID-19 restrictions, the government broke that

cardinal rule. It took away his ability to earn a living—all because it didn’t like his speech.

I join much of the majority’s analysis. But I write separately because I respectfully

disagree with its decision to grant absolute immunity to Taylor and Woods.

I.

The idea that the First Amendment should protect a person’s right to criticize the

government isn’t new. At the Founding, states ratified the Bill of Rights because they wanted to

protect citizens from government persecution. The debates about ratification prove this point.

To Federalist supporters of the Constitution, there was no need to protect specific rights. 2 The

Debates in the Several State Conventions on the Adoption of the Federal Constitution 337–47

(Jonathan Elliot ed., 1827) (statements of James Wilson). Why? The Constitution granted the

government only express powers, which didn’t include the ability to censor private citizens. But

Anti-Federalists disagreed. They feared that the federal government might overreach and try to

censor ideas it didn’t like. See David Yassky, Eras of the First Amendment, 91 Colum. L. Rev.

1699 (1991). So they persuaded the Federalists to include an amendment protecting a person’s

ability to speak out against the federal government. Id. After all, even the Federalists agreed

that people would continue to disagree. As James Madison put it in Federalist No. 10, “[a]s long

as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will

be formed.” The Federalist No. 10, at 73 (James Madison) (Clinton Rossiter ed., 2003). Over

the last two centuries, that ideal has guided courts’ interpretation of the First Amendment. See

Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).

Explicitly political speech, as Judge Bork explained, is always protected. Id. at 26.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 32

Since the Founding, some of our nation’s most regrettable moments have come when the

government ignored the First Amendment’s constraints. One early black mark came just a

decade after states ratified the Constitution. When citizens criticized President John Adams, the

Adams administration indicted Americans under the Sedition Act. Wendell Bird, New Light on

the Sedition Act of 1798: The Missing Half of the Prosecutions, 34 L. & Hist. Rev. 541, 544

(2016). Representative Matthew Lyon was the first victim. He published two letters to

newspaper editors attacking President Adams’ “continual grasp for power” and his unbounded

thirst for “ridiculous pomp, foolish adulation, and selfish avarice.” Francis Wharton, State Trials

of the United States During the Administrations of Washington and Adams 333 (Burt Franklin

ed., 1970). Lyon’s political speech resulted in a political prosecution and a conviction. While

Lyon and his compatriots lost the battle against censorship, they soon won the war. The

indictments enraged legislators throughout the young country, inspired the Kentucky and

Virginia Resolutions, and sparked a groundswell of support for free speech. And the American

people ousted President Adams and relegated the Sedition Act to the dustbin of history. See

Frank Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 907 (1989) (discussing

President Jefferson’s subsequent pardons for all individuals convicted under Alien and Sedition

Acts).

Another shameful moment came as America barreled towards civil war. Taking a page

from the Adams administration, authorities in the South prosecuted individuals who criticized

slavery. In one such incident, North Carolina convicted Reverend Daniel Worth for circulating a

book that spoke out against slaveowners. Case of Rev. Daniel Worth, N.Y. Times, Apr. 5, 1860,

https://www.nytimes.com/1860/04/05/archives/case-of-rev-daniel-worth-conviction-and-

sentence-of-imprisonment.html. The Reverend faced imprisonment for his speech. Michael

Kent Curtis, The 1859 Crisis over Hinton Helper’s Book, the Impending Crisis: Free Speech,

Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68

Chi.-Kent L. Rev. 1113, 1159 (1993). Although a North Carolina jury found Worth guilty,

history vindicated his cause. Slavery and suppressing speech went together. As Frederick

Douglass observed, “Slavery cannot tolerate free speech.” Frederick Douglass, “A Plea for

Freedom of Speech in Boston,” Dec. 9, 1860. Persecuting people who spoke out against slavery

was wrong then, and in history’s cold light, appears even more abhorrent now.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 33

All in all, American history shows that those who suppress critical speech are often on

the wrong side of the Constitution. It’s easy to think that we would never repeat yesterday’s sins

today. Perhaps because it seemed so far-fetched, for much of the last century, government

censorship was relegated to law-school hypotheticals. For example, then-Associate Justice

William Rehnquist once hypothesized what would happen if the government tried to crack down

on reports related to a spreading pandemic. William H. Rehnquist, The First Amendment:

Freedom, Philosophy, and the Law, 12 Gonz. L. Rev. 1, 15–17 (1976). While he wasn’t sure

how courts would rule, he explained such repression would be “stark and dramatic,” and was

thankful courts hadn’t had to confront such an issue. Id. at 17. Justice Rehnquist figured that the

government’s “real motive” would be to cover up its own mistakes and repress those who

pointed them out. Id.

II.

Enter Andrew Cooperrider. As the majority notes, Cooperrider owns Deans Diner, LLC,

which does business as “Brewed.” Brewed is a small business that sells coffee and beer. It’s a

place where people come together to talk, drink, and enjoy one another’s company.

So when Kentucky Governor Andy Beshear issued executive orders that forced

businesses to close during COVID, Brewed and Cooperrider were hit hard. Cooperrider couldn’t

serve his patrons. And with no patrons, Cooperrider couldn’t earn a living. For many white-

collar workers, Governor Beshear’s COVID restrictions offered an opportunity to fire up Zoom

and work from home. For Cooperrider, like so many other small business owners and blue-

collar workers, those restrictions threatened his ability to earn a living.

Cooperrider took to social media to criticize the government’s policies. He didn’t like

that the Commonwealth of Kentucky shut down businesses, sent police officers into churches to

block Easter Sunday celebrations, and silenced protestors. In his view, COVID didn’t warrant

closing restaurants and shuttering bars. He criticized many state officials for saying otherwise.

His civic involvement was deep and passionate. He even tried to institute a citizen campaign

against the governor.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 34

According to Cooperrider, the state government didn’t appreciate his dissenting views.

So Kentucky sought to strip Cooperrider’s alcohol license because he allegedly hadn’t complied

with executive orders prohibiting indoor dining during COVID. Cooperrider alleges that the

government not only knew about his comments but came after him and his livelihood because of

them. And he says that although the government settled similar disagreements over COVID

restriction compliance with other individuals, it refused to settle with him because of his critical

comments. Ultimately, even though the initial hearing officer didn’t recommend revoking

Cooperrider’s license, the Kentucky Department of Alcoholic Beverage Control disagreed.

Kentucky stripped Cooperrider and Brewed of the ability to serve alcohol.

III.

Despite the persecution Cooperrider faced, the majority relies on a theory of absolute

immunity to find that Cooperrider can’t hold two state executive officials responsible for their

actions. But the majority’s wrong to do so: Absolute immunity applies to judicial, not executive

officials.

A.

Absolute judicial immunity is strong but necessary medicine. Indeed, for more than a

century, American courts have recognized that the need to protect “judicial independence” and

reduce “vexatious litigation” about judges’ motives can merit a break from the general principle

that each man is liable for his own wrongdoing. Judicial immunity is “as old as the law, and its

maintenance is essential to the impartial administration of justice.” Randall v. Brigham, 74 U.S.

(7 Wall.) 523, 536 (1869). It’s important because such immunity prevents litigation about

judges’ motives, preserves “judicial independence,” and avoids “vexatious litigation.” Bradley

v. Fisher, 80 U.S. (13 Wall.) 335, 348, 354 (1872). Thus, for generations, courts have found that

judicial immunity applied to only judges and those acting as judges in courts, like officers

conducting courts-martial. See Scott A. Keller, Qualified and Absolute Immunity at Common

Law, 73 Stan. L. Rev. 1337, 1357–58 (2021). It’s true that executive officers had other

immunities. See id. at 1358. But judicial immunity is a stiff tonic for a particular ill—not one

that courts lightly apply to people outside the judiciary.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 35

Here, though, the majority opinion takes a different approach. In sizing up the actions of

two executive officials in Kentucky’s Department of Alcoholic Beverage Control (Taylor and

Woods)—who aren’t judges—the majority reasons that both officials should receive “quasi-

judicial” immunity.

The majority’s reasoning suggests that any official, from any branch of government,

could enjoy judicial immunity if he looks enough like a judge.1 But that’s not how American

law treats executive officers or defines judicial immunity.

B.

The Supreme Court has set out a multi-factor test to determine whether individuals

deserve absolute immunity. A court is supposed to probe several elements, including: (a) the

need to ensure that the individual can perform his functions without harassment or intimidation;

(b) the presence of safeguards that reduce the need for private damages actions to control

unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent;

(e) the adversary nature of the process; and (f) the correctability of error on appeal. Butz v.

Economou, 438 U.S. 478, 512 (1978); Cleavinger v. Saxner, 474 U.S. 193, 202 (1985). All told,

the Court has explained that these factors help us assess how similar the relevant actor is to a

judge—and whether he should enjoy absolute immunity. Cleavinger, 474 U.S. at 202.

Like many balancing tests, courts applying Butz and Cleavinger consider both the

number of factors supporting a particular side and make a holistic evaluation of a party’s

situation. See, e.g., Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 597 F. App’x

342, 352 (6th Cir. 2015).

1

Contrary to the majority’s view, our precedent doesn’t demand we regularly extend absolute immunity

outside the judiciary. Maj. Op. at 11 n.5. The Supreme Court has explained that it has been “quite sparing in [its]

recognition of absolute immunity,” and has declined “to extend it any further than its justification would warrant.”

Burns v. Reed, 500 U.S. 478, 487 (1991) (citations omitted). While there’s no doubt our caselaw has at times

recognized quasi-judicial immunity, the mere fact that we’ve said some officials deserve quasi-judicial immunity in

the past doesn’t mean we need to say these actors do, too. Instead, we should follow the Court’s guidance: officials

who seek “absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing

that public policy requires an exemption of that scope.” Butz v. Economou, 438 U.S. 478, 506 (1978). Judicial

immunity is the exception, not the rule, and requires a strong showing from the parties claiming judge-like

protections. Burns, 500 U.S. at 487. Applying those principles, courts must be careful before extending such

immunity.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 36

Here, the factors indicate that neither Woods nor Taylor deserves absolute judicial

immunity.

1.

Understanding why requires a brief overview of the state agency and proceedings at

issue. Woods and Taylor are executive officials in Kentucky’s Department of Alcoholic

Beverage Control. At the time, Woods was the malt beverage administrator and Taylor was (and

still is) the Commissioner, which means they’re two of the three members on the Department’s

three-member board. (The third member, the distilled spirits administrator, isn’t at issue.)

As board members, Woods and Taylor wield significant powers. Relevant here, they can

revoke alcohol licenses for licensees who violate state statutes or regulations. These violations

include selling illegal beverages on licensed premises, making false statements in a license

application, failing to pay license fees, being convicted of a felony or a misdemeanor attributable

to the use of intoxicating beverages, not paying excise taxes, operating or permitting the

operation of gambling on licensed premises, or selling drugs on licensed premises. Ky. Rev.

Stat. Ann. § 243.500.

When revoking a license, the board must give the licensee a statement of the causes for

its proposed revocation. Id. § 243.520. The board can revoke a license only after a hearing is

held in accordance with Kentucky’s general rules for agency hearings. See id. § 13B.125. Once

an order of revocation is final, the Board must give notice to the licensee and owner of the

licensed premises. Id. § 243.530. Then, the licensee must turn over his license. Id.

How do Woods and Taylor fit into this case? Together, they issued the final order

revoking Cooperrider’s license. And Taylor issued the emergency suspension order that

originally deprived Cooperrider of his alcohol license.

2.

Woods and Taylor don’t merit judicial immunity. Why? Three out of six Cleavinger

factors cut in Cooperrider’s favor. A fourth arguably does as well. All told, Woods and Taylor

serve as prosecutor and decisionmaker, aren’t safe from political influence, and don’t follow

No. 24-5351 Cooperrider et al. v. Woods et al. Page 37

precedent. Thus, both by counting factors and through a holistic analysis, these individuals

aren’t much like judges at all.

Start with the first factor. Courts assess the need to ensure that the individual can

perform his functions without harassment or intimidation. Cleavinger, 474 U.S. at 202. Here,

there’s no dispute that state officials making alcohol licensing decisions should be able to do

their jobs without facing harassment. They decide cases that “are every bit as fractious as those

which come to court.” Butz, 438 U.S. at 513. So the first factor cuts against Cooperrider.

Next, consider the second factor, the presence of safeguards that reduce the need for

private damages to control unconstitutional conduct. Here, there are some safeguards. There’s a

right to discovery, to compel witnesses, and to conduct cross-examination. See generally Ky.

Rev. Stat. Ann. § 13B.080. That’s significant. But, just as in Cleavinger, board members like

Woods and Taylor are “not truly independent.” 474 U.S. at 206. Why? The board, the same

body responsible for prosecuting violations of state laws and regulations, decides whether those

alleged violations have actually taken place. In other words, the board serves as both prosecutor

and decisionmaker. And, as in Cleavinger, that means the “members [have] no identification

with the judicial process of the kind and depth that has occasioned absolute immunity.” Id.

Thus, this factor tilts towards Cooperrider.2

So does the third prong. Here, the question is whether Woods and Taylor have

“insulation from political influence.” Id. at 202. Courts analyzing whether someone is insulated

from political influence apply a functional approach. See, e.g., Williams v. City of Montgomery,

742 F.2d 586, 589 (11th Cir. 1984). They look at whether the individuals are appointed, who

makes the appointments, and whether the appointees serve for a defined period or at the pleasure

of a political actor. See id. Here, the governor appoints the board members. Ky. Rev. Stat. Ann.

§ 241.015. What’s more, the beverage administrator and commissioner serve at the governor’s

pleasure and can be removed without cause.3 Id. § 63.080. And the beverage administrator

2

While the majority asserts that a “multitude” of safeguards protect litigants, Maj. Op. at 16 n.10, the fact

that a political appointee can override a neutral decisionmaker who tried to use those safeguards indicates the

protections don’t count for much.

3

In addition, Cooperrider alleges that the governor can reverse board determinations.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 38

serves at the commissioner’s pleasure. They lack the same safeguards against political influence

Cleavinger prioritized. As in Cleavinger, the board isn’t a “neutral and detached” hearing body

because it’s made up of individuals appointed and removable at will by the governor. 474 U.S.

at 203 (citation omitted). What’s more, Cooperrider alleges that the board overrode the hearing

officer, and neither Woods nor Taylor have rebutted that point on appeal or provided transcripts

from the hearing itself. Thus, taking Cooperrider’s allegation at face value, the license

revocation process here wasn’t free of politics.

The fourth prong also favors Cooperrider. See id. at 202. In Butz, the Court explained

that precedent is one feature of the judicial process that “tend[s] to enhance the reliability of

information and impartiality of the decisionmaking process.” 438 U.S. at 512. In Kentucky, the

Department conducts revocation proceedings “in accordance with KRS Chapter 13B.” Ky. Rev.

Stat. Ann. § 241.060(6). Chapter 13B, in turn, does not mention precedent as a relevant rule of

decision. What’s more, precedent played no role in the proceedings here. Thus, unlike when

precedent is vital to underlying proceedings, the dispute here lacked a key “check[] on malicious

action” by the board members. Butz, 438 U.S. at 512.

The fifth prong cuts against Cooperrider. Here, courts look at whether the administrative

process is adversarial. Cleavinger, 474 U.S. at 202. This one is. Why? Because an individual’s

right to notice, chance to respond and present testimony, cross-examine witnesses, and so on, are

all indicators of adversariness. Id. at 206. And here, Cooperrider had the chance to do all those

things. Thus, the process was adversarial.

Finally, courts consider whether any error was correctable on appeal. Cooperrider’s case

presents a close call on this prong. While some judicial review of the board’s decision is

available, it is “confined to the record” absent fraud or misconduct. Ky. Rev. Stat. Ann.

§ 13B.150. Thus, claims of bias, conflict of interest, and prejudice can’t be examined by a

reviewing court unless they’re in the record made before the board. And while our court has

noted in other cases that the availability of judicial review is material, the court’s review there

wasn’t “confined to the record.” See Flying Dog Brewery, 597 F. App’x at 352. Or the process

in question had considerable procedural protections within the administrative agencies

themselves, such as a board comprised of independent decisionmakers. See Hughes v. Duncan,

No. 24-5351 Cooperrider et al. v. Woods et al. Page 39

93 F.4th 374, 380 (6th Cir. 2024). Those protections are absent here. All told, this factor is a

close call, but tilts towards Cooperrider.

On balance, three of the Butz and Cleavinger factors favor Cooperrider, two cut against

him, and one is a close call. In such a circumstance, we “call this close question in favor” of

Cooperrider. Flying Dog, 597 F. App’x at 352.

3.

Rather than apply Cleavinger, the majority turns to Watts v. Burkhart. 978 F.2d 269 (6th

Cir. 1992) (en banc).4 But Watts is not to the contrary. There, our en banc court considered

whether quasi-judicial absolute immunity protected members of a state medical licensing board

that revoked a physician’s license. We conducted an exhaustive survey of caselaw about quasi-

judicial immunity dating to 1771. Id. at 272. And, applying Cleavinger’s factors, we concluded

that the medical board consisted of “independent professionals” who are “at least as independent,

one would assume, as state judges.” Id. at 276. Thus, absolute immunity protected the medical

licensing board.

Watts involves a different state, different board, and different rules. In each case, we

must conduct the Cleavinger analysis anew. Two of Watts’ factors are relevant here. Start with

the first factor, which Watts said required looking at whether someone is “akin to” a judge. Id. at

278. The administrators here don’t look much like judges. In the past, courts have reserved that

label for officials who have removal protections, serve fixed terms, and aren’t employees of a

party to the case. See, e.g., Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1422 (6th Cir. 1996).

Here, both Taylor and Woods are state employees—subordinate to the governor. They don’t

have removal protections and don’t serve fixed terms. Thus, they don’t look much like judges at

all. What’s more, merely focusing on the power to sit at the helm of administrative hearings

4

While the majority views Watts as applying a hard-and-fast test, see Maj. Op. at 13 n.6, Watts just applied

the test laid out in Cleavinger. After all, as an intermediate appellate court, the Watts court couldn’t have departed

from Supreme Court precedent. Agostini v. Felton, 521 U.S. 203, 207 (1997). Nor did Watts purport to do that.

Instead, after analyzing and applying Cleavinger, it merely remarked in passing on a test the First Circuit set out in

Bettencourt v. Bd. of Registration In Med. of Com. of Mass., 904 F.2d 772 (1st Cir. 1990), which it viewed as

consistent with Cleavinger. Watts, 978 F.2d at 278. And, at bottom, this court can’t depart from the Supreme

Court’s clear direction that we should apply Cleavinger.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 40

risks expanding absolute immunity’s strong medicine. And at a minimum, courts should not

extend absolute immunity to state officials in the absence of “the most convincing showing that

the immunity is necessary.” Imbler v. Pachtman, 424 U.S. 409, 434 (1983) (White, J.,

concurring in judgment). Taylor and Woods haven’t made that showing.5

Watts’s third prong also cuts towards Cooperrider, although it remains a close call. The

majority says “a number of” regulatory safeguards protect individuals subjected to Kentucky’s

proceedings. Maj. Op. at 14. These include notice and a right to legal counsel, among others.

See Ky. Rev. Stat. §§ 13B.020(1), 13B.050(3)(f), 13B.080(4), 13B.090(1), 13B.110(1)–(4),

13B.120(3). These are real procedural safeguards. But here, Taylor and Woods aren’t neutral

hearing officers. Woods, after all, reports to Taylor, and both report to the governor. There’s no

“structure insuring the adjudicator’s independent judgment on the evidence, free from outside

influences.” Joseph v. Patterson, 795 F.2d 549, 558 (6th Cir. 1986), abrogated on other grounds

by Kalina v. Fletcher, 522 U.S. 118 (1997). A litany of procedural safeguards related to a

hearing don’t mean much if the hearing doesn’t affect the decision. Thus, the majority is wrong

to focus on a “careful, multi-level procedural structure.” Maj. Op. at 16 n.8.

Taken together, a close look at Kentucky’s procedures suggests that, even under the

majority’s reading of Watts, Cooperrider has shown the officials shouldn’t get absolute

immunity.

4.

Taylor and Woods claim that since they’re also partly prosecutors, they are entitled to the

absolute immunity our court normally affords to prosecutors. But Taylor and Woods are not

entitled to that immunity either. While there’s little doubt that prosecutors can enjoy absolute

immunity if they’re responsible for initiating prosecution, that immunity applies only if their

5

In response, the majority attempts to differentiate between whether an official “seems” like a judge or

“act[s]” like a judge. Maj. Op. at 14 n.7. However, the relevant test is whether, applying Cleavinger, a particular

official measures up. Here, because these officials are appointed by the governor, are removable, and don’t have set

terms, they fail the Cleavinger test. Hughes v. Duncan is not to the contrary. 93 F.4th 374, 381 (6th Cir. 2024).

There, this court considered and explained that the Tennessee parole board was “comprised of seven members

serving six-year terms. Although the members are appointed by the governor, the Board is ‘autonomous in

structure.’” Id. at 380 (quotation omitted). Here, the board is not comprised of members serving terms for a definite

number of years, and while they may serve up to four years, they are removable at will.

No. 24-5351 Cooperrider et al. v. Woods et al. Page 41

“decision to proceed with a case is subject to scrutiny in the proceeding itself.” Butz, 438 U.S. at

516. As the Supreme Court outlined in Butz, a respondent needs the chance to “present his

evidence to an impartial trier of fact and obtain an independent judgment as to whether the

prosecution is justified.” Id. But that didn’t happen here, since Taylor and Woods were also the

final deciders as to whether Cooperrider could keep his alcohol license. Taylor and Woods

served as judge, jury, and enforcer. That combination of executive and judicial functions is

concerning, to say the least. Cf. The Federalist No. 47, at 298 (James Madison) (Clinton

Rossiter ed., 2003). To cloak its exercise with absolute immunity would be alarming.

IV.

Besides its ruling on absolute immunity, I join the majority opinion. The majority

correctly follows Supreme Court precedent in (1) holding that the district court erred in finding

that the defendants deserved qualified immunity and (2) finding that Cooperrider didn’t plausibly

plead a substantive due process violation under Supreme Court precedent. I write separately to

emphasize several points.

A.

First, qualified immunity. Qualified immunity is less potent than absolute immunity. It

doesn’t protect officials from suits seeking injunctive relief, and even when it does apply, it

shields defendants from liability for monetary damages only if “their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Clearly established” means that the

law is so clear at the time of an incident that every reasonable officer would understand that his

conduct broke the law. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). While qualified

immunity isn’t quite as robust as the absolute variety, it’s still potent.

1.

I agree with the majority that the defendants do not enjoy qualified immunity. But I

disagree with the idea that timing has anything to do with the decision. While the majority

correctly holds that the district court erred in finding that the defendants deserved qualified

No. 24-5351 Cooperrider et al. v. Woods et al. Page 42

immunity, it’s important to remember that courts have the power to evaluate qualified immunity

claims at the motion to dismiss stage.

In recent years, the timing of qualified immunity determinations has generated

considerable confusion. On the one hand, judges have explained that an officer’s “entitle[ment]

to qualified immunity is a threshold question to be resolved at the earliest possible point.”

Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003). And we’ve said the motion to dismiss stage

is just such a moment. Brown v. Giles, 95 F.4th 436, 441 (6th Cir. 2024). On the other hand,

other judges have reasoned that the appropriate point is “usually summary judgment and not

dismissal.” See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015). The majority falls

into this latter camp, asserting that it’s inappropriate to make such a determination at the motion

to dismiss stage.

But that’s incorrect. How so? Qualified immunity isn’t a factual question. Instead, at

the motion to dismiss stage, a court should accept the facts in the plaintiff’s complaint as true and

consider whether the defendant violated clearly established constitutional rights. See Kollaritsch

v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 626 (6th Cir. 2019); Marvaso v. Sanchez, 971

F.3d 599, 614 (6th Cir. 2020) (Nalbandian, J., dissenting). That’s a classic legal issue, which is

why courts can review it on an interlocutory appeal. See, e.g., Johnson v. Jones, 515 U.S. 304,

317 (1995). Thus, the mere fact that a pleading sits at the motion to dismiss stage doesn’t mean

this court can’t resolve a qualified immunity defense. It can—and often should.

B.

Finally, Cooperrider’s substantive due process claim. After the majority applied the

doctrines of absolute, qualified, and sovereign immunity, it determined Cooperrider had only one

claim left: his argument that the defendants ignored state law and deprived him of a protectable

liberty interest in violation of the Constitution when they took away his alcohol license. This

claim survived this far because qualified immunity only shields the defendants from monetary

damages, and Cooperrider seeks injunctive relief on this front. Flagner v. Wilkinson, 241 F.3d

475, 483 (6th Cir. 2001).

No. 24-5351 Cooperrider et al. v. Woods et al. Page 43

The majority was correct to conclude that Cooperrider’s substantive due process claims

fall short. Why? He failed to plead a claim that the enforcement scheme was unconstitutionally

arbitrary or conscience-shocking.

I agree that Cooperrider failed to state a claim on which relief could be granted, but write

separately to emphasize that substantive due process is a judge-made doctrine that, if used at all,

should apply only to rights well-grounded in American history and tradition.

Substantive due process, of course, is an oxymoron. Leave it to lawyers to figure that a

constitutional provision regulating the process by which substantive rights can be infringed

places substantive constraints on government. As John Hart Ely famously remarked, substantive

due process is “a contradiction in terms—sort of like ‘green pastel redness.’” John Hart Ely,

Democracy and Distrust 18 (1980). Yet according to the judge-made doctrine of substantive due

process, some government conduct is illegal regardless of whether the Fifth or Fourteenth

Amendment’s procedural guarantees were violated. Washington v. Glucksberg, 521 U.S. 702

(1997). Although the Supreme Court has found that plaintiffs may bring claims based on

violations of their supposed substantive due process rights, any deviation from the Constitution’s

text should be minimal. That’s why any substantive due process right must be “deeply rooted in

this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Id. (citations

omitted). Asserted “rights” that fail this test—much less those that are “entirely unknown in

American law”—don’t pass muster. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215,

231 (2022). A claim’s “novelty” provides “reason enough to doubt that ‘substantive due

process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 (1993). The Glucksberg framework

provides a key limiting principle for an atextual doctrine that’s not grounded in law. Cf. L. W. by

& through Williams v. Skrmetti, 73 F.4th 408, 416 (6th Cir. 2023).

V.

During the coronavirus pandemic, Americans turned to their national, state, and local

governments for help. We “sought answers less from ourselves, our friends, and our neighbors

and more from central authorities.” Neil Gorsuch & Janie Nitze, How Covid-19 Restrictions

No. 24-5351 Cooperrider et al. v. Woods et al. Page 44

Created Winners and Losers, National Review, https://www.nationalreview.com/2024/08/how-

covid-era-government-restrictions-damaged-the-rule-of-law/.

While fifteen days to slow the spread sounded harmless enough, for Cooperrider, the

resulting months-long lockdowns were anything but. Federal and state officials forced millions

of Americans to forgo the things that make life healthy, happy, and fulfilling—like going to

coffeeshops and bars. In doing so, the lockdowns caused mental health disorders,6 increased

speech delays in children,7 and led to a dramatic rise in chronic conditions that, combined with

non-COVID factors, killed more Americans under the age of 45 than the virus.8

On the economic front, the government’s response to COVID harmed people like Mr.

Cooperrider. While white-collar folks could work from the comfort of their living room, service

workers and others were forced to stay home, and thus, effectively laid off.9 Understandably

frustrated with the inequity and what he believed were the government’s disastrous policies,

Cooperrider spoke out. And if the government retaliated against him for it, he should have his

day in court.

* * *

With these caveats, I respectfully concur in the majority’s opinion except as to its

analysis of whether Woods and Taylor enjoy absolute immunity.

6

Ibtihal Ferwana & Lav R. Varshney, The Impact of COVID-19 Lockdowns on Mental Health Patient

Populations in the United States, Nature (Mar. 7, 2024).

7

Poll Shows Increase in Hearing, Speech, and Language Referrals, More Communication Challenges in

Young Children, ASHA (Apr. 30, 2023).

8

Staff of H. Comm. On Oversight, 118th Cong., Rep. on After Action Review of the COVID-19 Pandemic:

The Lessons Learned and a Path Forward 218 (2024).

9

Charles Bliam & Joel Kotkin, The Virus’s Uneven Path, City Journal (May 29, 2020), available at

https://www.city-journal.org/article/the-viruss-uneven-path.