Healy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

:

Alicia T. Healy, :

: Case No. 2:22-cv-2074

Plaintiff, :

: Judge Graham

v.

:

Officer Edward Chung, et : Magistrate Judge Vascura

al.,

:

Defendants. :

OPINION & ORDER

This matter is before the Court upon cross motions for summary judgment.

Plaintiff Alicia Healy (“Healy”) seeks partial summary judgment on certain elements

of her Amended Complaint. Doc. 80. Defendants, Officer Edward Chung (“Officer

Chung” or “Chung”) and the City of Columbus (the “City”) (collectively, “Defendants”)

seek summary judgment on all claims raised in the Amended Complaint. Doc. 79. For

the reasons that follow, the Court DENIES Healy’s motion for partial summary

judgment and GRANTS Defendants’ motion for summary judgment.

Background

This case arises out of a citation for trespassing. On May 1, 2020, Healy, an

African American woman, attended a demonstration outside of the Planned

Parenthood Surgical Center (the “Surgical Center”) in Whitehall, Ohio. Among a

dozen or so demonstrators that day, Healy was a first-timer. Officer Chung, a member

of the Columbus Police Department, was working special duty as a security detail for

the Surgical Center. While Healy was walking around the building in a “Jericho

Walk,” she entered a grassy area of the premises belonging to the Surgical Center.

An individual serving as an escort for patients approached Healy and notified her

that she was not allowed on the grassy area. The escort alerted Officer Chung, who

also observed Healy on the grassy area. Officer Chung mistakenly believed that Healy

was a different African American woman who had been warned to stay off the grassy

area at a prior demonstration at the Surgical Center. Officer Chung detained and/or

arrested Healy until he could verify her identity, after which he released her with a

summons to appear in court on a citation of trespass. The charges against Healy were

eventually dismissed.

Based on the May 1, 2020, encounter, Healy filed this suit, raising three (3)

claims for monetary damages under 42 U.S.C. § 1983. First, Healy seeks relief for the

alleged “warrantless, unreasonable and unconstitutional seizure and arrest,” in

violation of her rights under the Fourth Amendment. Doc. 1, # 10. Second, Healy

seeks relief for the alleged “deprivation of her rights to freedom of speech, freedom of

assembly, and freedom of religion,” under the First Amendment. Id. Third, Healy

seeks relief for the alleged “discriminatory enforcement actions,” in violation of the

Equal Protection Clause of the Fourteenth Amendment. Id at # 10-11. Healy brings

these claims against Officer Chung in his individual and official capacities, and also

seeks to hold the City of Columbus liable for these violations pursuant to Monell v.

Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978). Such

claims against municipal entities are often referred to as Monell claims.

Defendants argue that summary judgment on all claims is appropriate

because, as to Healy’s Fourth Amendment claim, Officer Chung’s seizure of Healy

was constitutionally sound, based on the circumstances known to him at the time.

Doc. 79, # 1732. As to Healy’s First Amendment claim, Defendants argue that she

cannot establish that she was engaged in a protected activity. Id. at # 1747-48. As to

Healy’s Equal Protection claim, Defendants argue that Healy cannot show any

similarly situated comparators. Id. at # 1747. As to her Monell claims against the

City, Defendants argue that Healy has failed to “identify the specific policy or policies

which allegedly caused her injury.” Id. at # 1749. Finally, Defendants argue that

Officer Chung is entitled to qualified immunity. Id. at # 1740-43.

Healy seeks partial summary judgment, focusing primarily on her Fourth

Amendment claim and her related theory of Monell liability. Specifically, she moves

the Court to find that Healy’s arrest:

1. Violated her clearly established rights under the Fourth

Amendment to the United States Constitution;

2. Was caused by Defendant City of Columbus’ failure to

train Officer Chung on basic elements of Ohio Trespass

law; and

3. Was ratified by the City of Columbus policy-making

officials (via testimony and Rule 36 Admissions).

Doc. 80, # 1762. Both parties rely heavily on video evidence, declarations and

deposition testimony in the record.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the

evidentiary materials in the record show that there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving

party bears the burden of proving the absence of genuine issues of material fact and

its entitlement to judgment as a matter of law, which may be accomplished by

demonstrating that the nonmoving party lacks evidence to support an essential

element of its case on which it would bear the burden of proof at trial. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481,

485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Longaberger,

586 F.3d at 465. “Only disputed material facts, those ‘that might affect the outcome

of the suit under the governing law,’ will preclude summary judgment.” Daugherty v.

Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at

248). Accordingly, the nonmoving party must present “significant probative evidence”

to demonstrate that “there is [more than] some metaphysical doubt as to the material

facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The standard

of review remains the same when reviewing cross-motions for summary judgment

versus a motion filed by only one party. Hamilton Cnty. Educ. Ass'n v. Hamilton Cnty.

Bd. of Educ., 822 F.3d 831, 835 (6th Cir. 2016).

DISCUSSION

The parties agree that many material facts are undisputed and supported by

clear video evidence. To Healy, these facts show that Officer Chung committed an

unlawful arrest without probable cause, based on Healy’s race, and/or as unlawful

retaliation for her constitutionally protected exercise of free speech, and/or in

ignorance of Ohio trespass law. To Defendants, these facts show that Healy

committed a criminal trespass, Chung witnessed it, and then Chung lawfully

detained Healy based on his personal observation of criminal conduct. Indeed, the

central issue is whether the circumstances known to Chung justified the seizure of

Healy under Ohio trespass law, and so the Court begins there. However, as explained

below, the Court ultimately concludes that this central issue poses questions best

resolved by a jury.

I. Healy’s Fourth Amendment Claim.

Healy brings a Fourth Amendment claim under the first claim for relief of her

Amended Complaint. She also articulates a Monell claim, alleging that the violation

of her rights can be culpably traced to the City of Columbus based on an allegedly

unlawful policy, custom, or practice. The Monell claim is not stated as a separate

claim; rather, Healy has alleged each count against all Defendants, which includes

the City of Columbus. That said, Healy’s theory for Monell liability is closely tied to

her Fourth Amendment claim.1 Therefore, the Court will analyze Healy’s Monell

theory in the context of the Fourth Amendment claim.

1 Indeed, Healy’s motion for partial summary judgment currently before the Court addresses

only her Fourth Amendment claim and her related Monell theory. On the other hand, Healy

A. Summary Judgment is Warranted for Defendants on Healy’s Monell

Claim.

Defendants seek summary judgment on Healy’s Monell claim, in which she

argues that the City of Columbus failed to train its officers in accordance with State

v. Barksdale, 2 Ohio St. 3d 126, 443 N.E.2d 501 (1983), an Ohio case which discussed

how a business’ status as open-to-the-public implicates the boundaries of criminal

trespass. In Barksdale, the Supreme Court of Ohio held that a criminal defendant did

not commit a trespass when he entered a car lot and stole items from the cars. Id.

The Supreme Court observed that “the automobile dealer’s tacit invitation extended

[to] the general public to visit the proprietor’s lot to view the vehicles thereon was a

grant of privilege.” Id. at 128. Therefore, despite the defendant’s criminal intentions

when he entered the lot, the entry itself was lawful. Id.

Healy’s reliance on Barksdale is twofold. First, Healy argues that Chung

improperly seized her because “based on Barksdale,” she had a legal privilege to walk

across the grassy lot “until she was asked to leave.” Doc. 80, # 1774. Second, Healy

argues that Chung’s failure to recognize her privilege can be traced to his inadequate

training, thus making the City of Columbus liable pursuant to Monell v. Dep't of Soc.

Servs. of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978). On each track, Healy’s

reliance on Barksdale is misplaced.

does not appear to offer specific argument as to municipal liability for her First Amendment

and Equal Protection claims, presumably on the theory that any such liability would derive

from the same policy on which Healy focuses her argument.

As to Healy’s Fourth Amendment claim, Defendants argue that Chung

reasonably believed Healy had received sufficient notice, based on the circumstances,

and that the limited operations of the surgical center are easily distinguishable from

the car lot in Barksdale.2 Indeed, Healy does not dispute the fact that she was asked

to leave—i.e., to the extent she had any Barksdale privilege, it was revoked.

Furthermore, Healy’s contention that she could enter the grassy lot based on

Barksdale (i.e., that the Surgical Center was open to the public and thus she had

privilege) is inconsistent with her testimony which demonstrates that she knew not

to enter the Surgical Center’s property,3 but simply believed that the grassy lot was

not part of that property.

More importantly, Barksdale does not change Chung’s calculus for

determining whether to seize an individual over suspicion of trespass. Healy

repeatedly refers to Chung’s ignorance of the “Barksdale principle,” i.e., “that a

2 In contrast to a car lot which “typically has no fencing, signs, or security,” Defendants

describe the Surgical Center as follows: “’No Trespassing signs surround the building… the

facility does not provide any services to walk-in patients… Every patient must have an

appointment… Prospective patients cannot even schedule their appointments on the

premises… Special duty police officers patrol the exterior to keep non-patients out of the

parking lot and off the grounds… there is a second layer of security—a locked door from the

vestibule with an intercom system for entry—which only valid patients can enter.” Doc. 79,

# 1738.

3 See, e.g., doc. 66-1, 31:3-4 (describing where demonstrators gather as “in the front and then

you can kind of be on the side.”) (emphasis supplied); id. at 32:1-5 (“So there’s a fence

that separates. So you have the parking lot and then you have the fence and then you have

the sidewalk counselor outside that sidewalk outside of that fence.”); id. at 59:21-23 (“with

the fence stop where it stopped, I guess my thoughts was that that property from there was

theirs.”); id. at 62:2-4 (explaining that she would not have crossed the grassy lot if she knew

it belonged to the Surgical Center). See also David Daubenmire Dep., doc. 65-1, 13:6-12

(“Because you knew to step across that line would be trespassing, so you didn’t do it. You

could talk to them on the sidewalk… you could try to catch them in the driveway. But we

all knew that you didn’t go on the Planned Parenthood property.”) (emphasis

supplied).

business open to the public extends a ‘tacit invitation’ (a privilege) to members of the

public to enter the property.” Doc. 80, # 1770. But Healy does not contend that this is

an irrevocable privilege; rather, she acknowledges that her privilege persisted “until

she was asked to leave.” Id. at # 1774. But as much is baked into Chung’s assessment

of whether someone committed criminal trespass. In sum, the question (for Chung)

remains the same with or without Barksdale, which is whether Healy had notice that

she was not allowed to enter the property when she did it—i.e., whether she did so

knowingly. See doc. 61-1, 66:6-12 (Chung describing process of warning trespasser

before issuing summons); cf. Logsdon v. Hains, 492 F.3d 334, 342 (6th Cir. 2007)

(“Ohio courts construe the lack-of-privilege requirement as an element of the offense

of criminal trespass, and not an affirmative defense.”).

Nor does Barksdale change the related issue before the Court as to whether

Chung reasonably believed that Healy had sufficient notice. What Healy calls the

“Barksdale principle” simply goes to the mens rea required by the cited statute for

criminal trespass.4 In the Court’s view, the degree to which the Surgical Center was

open to the public is simply a disputed fact in the totality-of-the-circumstances(-

within-Chung’s-knowledge) bucket.

4 To the extent there exists a “Barksdale principle” of precedential value, it is that a privileged

entry onto someone else’s property does not transform into a trespass after-the-fact by virtue

of the privilege-holder’s criminal conduct on the property. 2 Ohio St. 3d 126, 443 N.E.2d 501

(1983). The Supreme Court of Ohio was specifically considering whether the trespass element

of a breaking-and-entering offense was fulfilled despite the defendant’s apparently lawful

entry onto the property (a car lot during business hours). Id. In sum, Barksdale is not

uniquely relevant here except to underscore the “knowingly” element of the offense of

trespass.

As to her Monell claim, Healy cites to deposition testimony and responses to

interrogatories to argue that “none of the five police witnesses in this case were

trained on the Barksdale privilege.” Doc. 87, # 1841. But the Court agrees with the

Defendants that the evidence shows that “the Columbus Division of Police correctly

instructs its officers as to the law governing trespassers in open commercial

establishments, even if the officers do not recognize the relevant Supreme Court

opinions by name.” Doc. 85, # 1827. Indeed, Healy herself quotes Rule 30(b)(6) witness

Jacob Day stating “[I]f it’s a business that’s open to the public and someone just walks

in… then there would not be an issue with criminal trespass.” Doc. 87, # 1841. This

quotation—from an officer testifying on behalf of the city—thoroughly vitiates

Healy’s allegation of widespread municipal ignorance of what she calls the “Barksdale

principal.” Because Healy bases her Monell theory entirely on that allegation, the

Court GRANTS Defendants’ motion as to that theory.5

B. Genuine Disputes of Material Fact Preclude Summary Judgment as to

Whether Officer Chung Lawfully Seized Healy.

To prevail on a Fourth Amendment unlawful arrest claim under 42 U.S.C. §

1983, Healy must show that she was arrested without probable cause. Fridley v.

5 As noted supra, Healy does not state a standalone Monell claim, and does not offer any other

argument regarding municipal liability for her First Amendment and Equal Protection

claims. Therefore, judgment is warranted for the City of Columbus on all three (3) claims in

the Amended Complaint. To the extent Healy is stating a claim against Officer Chung in his

official capacity, this conclusion extends to grant summary judgment on the same.

“[I]ndividuals sued in their official capacities stand in the shoes of the entity they represent.”

Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v. Graham, 473 U.S. 159,

165 (1985)). Accordingly, “[a] suit against an individual in his official capacity is the

equivalent of a suit against [that] governmental entity.” Matthews v. Jones, 35 F.3d 1046,

1049 (6th Cir. 1994) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 68 (1989)).

Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). Probable cause exists where, based on

the facts and circumstances known to the arresting officer, “there is a ‘fair probability’

that the individual to be arrested has either committed or intends to commit a crime.”

Id. (citing Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir.2001)).

Officer Chung cited Healy for criminal trespass under § 2311.21(A)(1) of the

City of Columbus’ municipal code, which provides:

(A) No person, without privilege to do so, shall do any of the

following:

(1) Knowingly enter or remain on the land or premises

of another;

Columbus, Ohio, Code of Ordinances § 2311.21. Healy’s argument is that Officer

Chung did not have probable cause because Healy, attending that day for her first

time, “had no idea who owned the lot, and was never warned by anyone,” and thus

lacked the requisite mens rea for the offense. Doc. 87, # 1835. Defendants point out

that Healy’s assertions “might be relevant to her defense against the criminal

charges,” but that Chung “needed only a reasonable basis to believe that she had

knowingly trespassed.” Doc. 79, # 1734.

Defendants summarize the facts known to Officer Chung, arguing that the

circumstances sufficiently established a reasonable basis for Healy to be seized: “The

grassy lot belonged to Planned Parenthood. Healy was not a patient at the facility.

There was a No Trespassing sign on the west wall of the facility. A volunteer from

Planned Parenthood warned her that she was trespassing. Officer Chung personally

saw her while she was still on the grass.” Doc. 85, # 1819.

The video evidence appears to support this summary, to an extent. Specifically,

Defendants have submitted two exhibits from Healy’s deposition. Exhibit 006 is a 26-

second video appearing to have been recorded with a cell phone camera from the

sidewalk where the demonstrators were located. The video shows Healy walking on

the grassy lot toward the camera. She is approached by a volunteer escort, later

identified as Carolyn Heck (“Heck”), who tells her that she cannot be on the grass.6

Heck appears to turn and address someone off-camera (understood to be Officer

Chung). Though Healy acknowledges Heck, and they appear to exchange some

words,7 Healy continues walking in the same direction as she was before she was

approached, until she appears to reach the sidewalk.

A second video shows the same events from a different angle. That video,

Exhibit 008 to Healy’s deposition, appears to be a compilation of footage from the

demonstration. After opening with music over a text graphic which says “COACH

Dave LIVE!”, the video cuts to more cell phone footage, showing Heck as she

approaches Healy. The clip begins with the camera situated near the entrance of the

parking lot, viewing the encounter between Heck and Healy through the parking lot

at a diagonal angle (relative to the perspective of Exhibit 006), and continues as the

person filming moves down the sidewalk toward the same vantage point as Exhibit

006. Both clips end at the point when Healy appears to reach the sidewalk, with Heck

returning to the parking lot.

6 What is actually said is inaudible, but Healy does not dispute the substance of the

communication. See doc. 74, # 1481.

7 Again, mostly inaudible.

Though Exhibit 006 is just the single brief clip, Exhibit 008 continues with

additional clips of footage. The next clip, beginning at 00:28 in Exhibit 008, shows

Officer Chung in the parking lot approaching the sidewalk. As he approaches, he

appears to point at someone off-camera and then makes a beckoning gesture. He then

steps onto the sidewalk and grabs Healy’s arm, which is outstretched with her palm

toward him, and escorts her a few feet into the parking lot. Though the parties dispute

whether Healy was arrested or merely detained, they appear to agree that, at this

point, Healy was seized (i.e., detained, at least).

But neither these exhibits nor any others provided to the Court reveal how

much time passed between Healy walking through the grassy lot and Officer Chung

seizing her, nor what occurred during that interval.8 Nor do they show Healy’s actions

before the video clips which start with her already in the middle of the grassy lot.9

Witness statements establish genuine disputes of material fact surrounding these

areas of ambiguity. For example, Heck testified in her deposition that she witnessed

Healy walking the opposite direction, “off the sidewalk” (doc. 70-1, 31:13-14) going

8 Healy’s response when asked, in her deposition, how much time passed between the end of

the first clip and the start of the second clip in Exhibit 008: “It seemed like it happened pretty

quickly. I mean, it looks like I was still walking around, so I’m—I’m not sure. Maybe a minute

or two. I don’t know.” Doc. 66-1, 66:14-20.

9 Notably, under § 2311.21(A)(1), a criminal trespass occurs when the offender (knowingly)

enters or remains on the property of another without privilege. Therefore, if Healy was

already in the grassy lot when she learned for the first time that it belonged to the Surgical

Center, she would not be guilty of trespass under (A)(1) unless she remained on the property

or entered the property again. But even if Healy did not remain and never did enter the

property again (i.e., is factually innocent of the cited offense), Chung can still prevail by

persuading the jury that his contrary belief was reasonable under the circumstances. See

Rayfield v. City of Grand Rapids, Michigan, 768 F. App'x 495, 506 (6th Cir. 2019) (“[O]fficers

are not required to conduct further investigations to disprove possible affirmative defenses

or to corroborate a suspect's proclaimed innocence.”).

“from Main Street onto the grassy lot” (id. at 30:5-6) and that Healy was “walking

back and forth” (id. at 58:18) on the grassy area. She further testified that “After I

warned her and she refused to move, I turned around and walked away… and went

to [Officer Chung] and said she’s trespassing.” Id. at 32:3-6.10 Though these

observations are not fully reflected in the video footage—which begins with Healy

already in the middle of the grassy lot, moving toward Main Street, rather than away

from it—neither are they necessarily refuted by the brief clip.11 Healy, for her part,

submitted a declaration, stating, “Contrary to the testimony of Carolyn Heck and

Officer Chung, my walk through the grassy lot from the back alley to the Main Street

sidewalk was steady and uninterrupted, with no stopping and backtracking (i.e., no

back and forth or retracing of my steps).” Doc. 82, # 1795.

10 Among the particular factual ambiguities weighing on this question is the nature of what

Heck communicated to Chung, and the sequence of events at that time. Chung’s declaration

states that Heck approached him while he was seated in his vehicle and “told [him] that a

woman was trespassing on Planned Parenthood property.” Doc. 79-1, # 1756. When Chung

looked up, he saw “a woman trespassing on the grassy area.” Id. Due to the gaps in the video

footage (see Exhibit 008 to Healy’s deposition), we see Heck turn back toward the parking lot

only after Healy exits the grassy area onto the sidewalk, but we do not see Heck cross the

parking lot to address Chung, nor how long that takes. Regardless, this timeline suggests

that when Chung looked up and saw Healy on the grass, he may have—depending on what

Heck communicated to him—understood Healy to have re-entered or to have remained on

the grass in spite of Heck’s admonition to her.

11 As illustrated in Heck’s deposition:

Q: Is it your testimony that at some point she stopped and stood still [in the

grassy area]?

A: At some point, yes… Whether it was on that video or not, but, yes, she did

stop and stand still.

Q: All right. Are you suggesting that you saw her on that grassy area a second

time?

A: Or before that.

Doc. 70-1, 59:7-15.

In other words, there is a substantial and genuine dispute of material facts,

requiring resolution from a factfinding jury. Probable cause is a legal determination—

i.e., for the court rather than the jury—only when “the historical facts are

undisputed.” Gerics v. Trevino, 974 F.3d 798, 805 (6th Cir. 2020). The historical facts

here are variously disputed, thus precluding the Court from making such a

determination without balancing it precariously upon wobbly factual assumptions.

Therefore, to the extent the parties’ cross motions rely on the issue of probable cause

breaking in their favor, they must be denied. This conclusion trickles down and

likewise precludes neat resolution of when or whether Officer Chung’s seizure of

Healy evolved from a detention to an arrest, and the legal significance thereof.

Healy’s motion seeks summary judgment on three propositions of law, all of which

depend on the Court concluding that Chung violated her Fourth Amendment rights.

Because the Court cannot so conclude on this record, Healy’s motion is DENIED.

Defendants’ motion is DENIED to the extent that it relies on the Court concluding

that Officer Chung’s seizure of Healy was justified. Nevertheless, the Court concludes

that Officer Chung is entitled to qualified immunity.

C. Officer Chung is Entitled to Qualified Immunity.

Would it be apparent to a reasonable officer that Chung’s conduct was unlawful

in the situation he confronted? See Anderson v. Creighton, 483 U.S. 635, 640 (1987)

(“[I]n the light of pre-existing law the unlawfulness must be apparent,” for qualified

immunity to fall away). Because the factual disputes do not prevent the Court from

answering this question in the negative, neither are they an impediment to the

Court’s determination that Officer Chung is entitled to qualified immunity on Healy’s

Fourth Amendment claim.

Under the doctrine of qualified immunity, government actors are shielded from

civil liability in the performance of their duties 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). Qualified

immunity “gives ample room for mistaken judgments” by protecting “all but the

plainly incompetent or those who knowingly violate the law.” Johnson v. Moseley, 790

F.3d 649, 653 (6th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Courts use a two-step inquiry to analyze qualified immunity: (1) whether the

government official’s conduct violated a constitutional right, and (2) whether that

right was clearly established at the time of the alleged violation. Pearson v. Callahan,

555 U.S. 223, 232 (2009).

In this case, the Court’s conclusion above—that factual disputes preclude

determination of whether Healy’s Fourth Amendment rights were violated—is

likewise applicable as to the first step of the qualified immunity theory. And while a

finding of a genuine dispute of material fact on the underlying claim will often

prevent full adjudication of a corresponding qualified immunity defense, the unique

facts of this case enable the Court to find Chung’s qualified immunity defense to be

intact, valid, and effective. See Jackson v. Hoylman, 933 F.2d 401 (6th Cir. 1991)

(stating qualified immunity doctrine “allow[s] government officials to perform their

discretionary duties without constant fear that each time they act they will be forced

to defend themselves in a civil suit.”).

Healy argues, “in the absence of probable cause to believe that Healy was

trespassing… Chung violated clearly established law by arresting her.” Doc. 83, #

1812. More specifically, Healy argues that, under clearly established law, Chung

could not disregard the potentially exculpatory statements from bystanders

explaining that Healy had never been to the Surgical Center before. Id. at # 1813

(citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 305 (6th Cir. 2005)). In

support of this argument, Healy cites Logsdon v. Hains as a case which clearly

established that an officer “may not off-handedly disregard potentially exculpatory

information made readily available by witnesses on the scene.” 492 F.3d 334, 343 (6th

Cir. 2007).

In Logsdon, a man demonstrating outside of an abortion clinic was arrested

(on public property) for criminal trespass after he had entered the clinic parking lot

to retrieve his antiabortion sign which a member of the clinic had removed from a

neighboring fence. Id. The Sixth Circuit reversed the District Court’s dismissal of the

plaintiff-demonstrator’s ensuing § 1983 action because, under a liberal construction,

“there [was] a set of facts consistent with the pleadings in which [d]efendants violated

[p]laintiff’s Fourth Amendment rights.” Id. But the defendant officers in Logsdon

were responding to a call from a member of the clinic reporting the trespass, and the

fact that the officers did not personally witness the alleged trespass strongly informed

the court’s determination that the officers’ disregard of the on-scene witnesses—

among the only apparent sources of information in the absence of officers’ firsthand

observations—may have violated the Fourth Amendment rights of the plaintiff.

Officer Chung, on the other hand, personally witnessed the apparent trespass.

Therefore, the Court finds Skovgard v. Pedro, 448 F. App'x 538 (6th Cir. 2011) is the

better guide for the instant case. In Skovgard, another case involving antiabortion

demonstrators being cited for criminal trespass, the plaintiff-demonstrators were

arrested for trespassing on a grassy area which the defendant-officers mistakenly

believed to be part of the clinic’s property, but it was in fact public property. Id.

However, “unlike in Logsdon,” the defendant officers in Skovgard “personally

observed the alleged trespassers in the area believed to be private property.” Id. at

547. Similarly, here, Chung personally observed Healy on actual private property,

believing that she had prior notice that she lacked privilege to be there.

The Skovgard court held that the defendant-officers were entitled to qualified

immunity despite “failing to further investigate the boundaries of the public right-of-

way.” Id. In the instant case, however, Chung conducted relevant investigation—not

as to the property lines, but as to Healy’s identity, because Chung (mistakenly)

believed Healy was someone else. Though Healy argues that Chung disregarded12 the

statements of bystanders trying to explain Healy’s innocence, his attempts to verify

Healy’s identity were essentially an effort at investigating those statements.13

12 In his deposition, Chung testified that he could hear the demonstrators shouting, but did

not recall hearing any specific statements. Doc. 61-1, 55:11-13.

13 The parties do not dispute that Healy stated her name to Officer Chung approximately 1

minute into their encounter, but Chung did not hear it. Doc. 79-1, # 1757. On the other hand,

Healy does not dispute that she withheld information that he requested “because [she]

In sum, much like Sixth Circuit concluded as to the defendant-officers in

Skovgard, and keeping in mind qualified immunity’s “ample room for mistaken

judgments” (Johnson v. Moseley, 790 F.3d at 653), a reasonable person in Officer

Chung’s position “would not have thought that he was acting unlawfully.” Skovgard,

448 F. App'x at 547. To the extent that Chung was acting on a mistaken belief as to

Healy’s identity, the law has not clearly established that a good faith mistake is

unlawful and fatal to his qualified immunity, especially when his conduct in response

constituted reasonable efforts at dispelling such a mistake. Therefore, Chung is

entitled to qualified immunity on Healy’s Fourth Amendment claim.

II. First Amendment Retaliation.

Defendants argue that summary judgment is warranted on Healy’s § 1983

claim alleging a First Amendment violation. In her complaint, Healy alleges that

Chung’s conduct “constituted retaliation against Healy for the manner and content

of her speech.” Doc. 53, # 284. To prevail on a claim of First Amendment retaliation,

Healy must show: (1) that she was engaged in a constitutionally protected activity;

(2) that the Defendants took adverse action against her, causing her to “suffer an

injury which would likely chill a person of ordinary firmness from continuing to

engage in that activity”; and (3) that the adverse action was motivated in part by her

constitutionally protected conduct. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).

Defendants argue that Healy’s claim cannot clear the first hurdle because,

regardless of the content of her speech, she does not have a constitutional right to

believed [she] had done nothing wrong and [she] did not want to share any more personal

information with him.” Doc. 82, # 1795.

trespass on private property. Doc. 79, # 1748. Defendants point out that Healy did

not respond to their argument that she had no constitutional right to trespass on

private property, and that the cases she cited regarding First Amendment claims

involved public property. Doc. 85, # 1826. Despite the clear allegation of “retaliation”

in her complaint, Healy retreats from characterizing her claim as one for retaliation

and instead rearticulates her First Amendment claim in the summary judgment

briefing as alleging an impermissible regulation of speech in a public forum: “absent

the Fourth Amendment violation, [Healy] would have completed the Jericho Walk

and continued the peaceful exercise of her First Amendment freedoms.” Doc. 83, #

1809.

Healy’s desire to avoid the ordinary 3-part retaliation inquiry is

understandable, given the obstacles it poses to her claim. She does not respond to

Defendants’ argument as to the first part, to wit, that she has no constitutionally

protected right to trespass. See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir.

1999) (“[W]hether a plaintiff's speech is ‘protected’ depends on where he is.”). While

the Court agrees with the Defendants that Healy had no First Amendment right to

express herself on private property,14 it finds that her claim ultimately fails on the

second part. Spotting Healy the first factor—that her constitutionally protected

activity was speaking on the public sidewalk before and after she entered the grassy

area—the Court is not persuaded (and Healy has not attempted to persuade) that

14 The Court departs from the Defendants’ position which contends that this finding is

dispositive. Defendants have not identified case law in this circuit which requires that a

plaintiff alleging First Amendment retaliation show that they were engaged in a protected

activity at the moment of the adverse action.

seizing someone for trespassing on private property would deter a person of ordinary

firmness from continuing to engage in speaking on public property.

Furthermore, Healy spent much of her detention continuing to do what she

stated she went to the Surgical Center to do: praying and trying to deter women from

having abortions. The video evidence shows Healy continuing to pray in the parking

lot while Chung attempts to identify her. This likewise weakens the argument that

the adverse action was motivated by her protected conduct. See also Skovgard, 448

F. App'x at 548 (no evidence of retaliatory motive where officers encouraged

demonstrators to continue demonstration elsewhere). Though Healy points to the fact

that other (non-demonstrating) individuals occasionally traversed the grassy area

without consequence, many more demonstrators exercised the same protected

conduct without consequence. Thus, this evidence demonstrates that Chung was in

fact motivated by Healy’s (apparent) criminal trespass. Healy does not dispute that

Chung (mistakenly) believed that Healy had been to the Surgical Center before and

had been warned that she could not enter the Surgical Center’s property.

Healy’s arguments to the contrary are unpersuasive. Despite expressly

pleading a retaliation theory in her amended complaint (doc. 53), Healy argues in her

opposition brief that “a retaliatory state of mind should not be required.” Doc. 83, #

1810. She cites to Logsdon v. Hains in support of her theory that the unlawful arrest

itself violated her First Amendment rights, “which could not be exercised from the

back of a police cruiser.” Id. (citing 492 F.3d 334, 344-46 (6th Cir. 2007)). In Logsdon,

the Sixth Circuit observed that the defendant-officers “removed [p]laintiff from the

public fora, thereby causing him to cease his protest and counseling.” Id. But,

contrary to Healy’s no-retaliation-necessary-theory, the court in Logsdon further

observed that “Construing [p]laintiff's complaint liberally, [p]laintiff alleges that

[d]efendants were motivated by the content of his speech in removing him

from the public forum, and not by any purported criminal trespass.” Id. (emphasis

supplied). So, Logsdon is of no support to Healy’s bid to avoid showing retaliatory

intent.15

Healy also cites Pouillon v. City of Owosso for the proposition that, in “a

traditional public forum,” the government’s “regulations of time, place and manner of

expression,” must be “content neutral” and “narrowly tailored to serve a significant

government interest and leave open ample alternative channels of communication.”

Doc. 83, # 1810 (quoting 206 F.3d 711, 715 (6th Cir. 2000)). This argument is easily

disposed of, because the grassy area that was regulated was not a public forum,

traditionally or otherwise.

In sum, Healy has failed to state a claim for First Amendment retaliation, nor

any other cognizable theory of a First Amendment violation. Therefore, the Court

GRANTS Defendant’s motion for summary judgment on that claim.

15 Nor does Logsdon rebut Defendants’ argument that Healy had no protected right to

trespass, thus dooming her claim on the first step. Though the plaintiff in Logsdon was

arrested for trespass, and he indisputably entered the clinic property, the Sixth Circuit

observed that the criminal trespass conviction was reversed on a state appellate finding that

he had privilege to enter the property to retrieve his sign. 492 F.3d at 338. Thus, while the

Logsdon court allowed the First Amendment claim to proceed, it did so upon the

distinguishing fact of the plaintiff’s legally-established privilege to be on the property.

III. Healy’s Equal Protection Claim.

Defendants seek summary judgment on Healy’s § 1983 claim based on the

Equal Protection clause of the Fourteenth Amendment. Under the Equal Protection

Clause, government actors may not “make distinctions which either burden a

fundamental right, target a suspect class, or intentionally treat one differently from

others similarly situated without any rational basis for the difference.” Radvansky v.

City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005).

Defendants argue that Healy, who is African-American, has failed to identify

any similarly-situated comparators who received better treatment. Healy does not

address this claim, nor Defendants’ argument in opposition, in any of the briefing

submitted. Her Amended Complaint states that demonstrators at the Surgical Center

“would regularly observe people walking across the grassy lot without incident and

undisturbed by PP Surgical Center security guards [or] the security guard would

simply inform them that they were not allowed on that property… but would not

otherwise interfere with or arrest them.” Doc. 53, # 281. But, as Defendants point out,

Healy has not provided any evidence of the characteristics of other individuals

traversing the grassy lot, thus omitting a necessary component of her Equal

Protection claim. The Court cannot permit Healy to argue to a jury that her treatment

was discriminatory in the absence of any evidence distinguishing Healy from those

who allegedly traversed the grassy area without incident. Since Healy has failed to

fulfill her burden on this claim, the Court GRANTS Defendants’ motion for summary

judgment as to the same.

CONCLUSION

The Court finds that Defendants are entitled to summary judgment. As a

matter of law, Healy cannot prevail on her claims under the First Amendment and

the Equal Protection Clause. Neither can she prevail on her Monell theory of

municipal liability for the alleged constitutional violations. Finally, while factual

disputes prevent determination of whether Healy’s Fourth Amendment rights were

violated, the Court finds that Officer Chung is entitled to qualified immunity.

Therefore, Defendants’ motion for summary judgment is GRANTED, and Plaintiff’s

motion for partial summary judgment is DENIED.

IT IS SO ORDERED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: October 31, 2025