Kennedy v. City of Villa Hills, Ky.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0073p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KENNETH O. KENNEDY,

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Plaintiff-Appellee,

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No. 09-6442

v.

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Defendants, -

CITY OF VILLA HILLS, KENTUCKY et al.,

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JOSEPH SCHUTZMAN, Individually, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 07-00122—David L. Bunning, District Judge.

Argued: January 20, 2011

Decided and Filed: March 24, 2011

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING,

P.L.L.C., Covington, Kentucky, for Appellant. Charles H. Schaffner, Covington,

Kentucky, for Appellee. ON BRIEF: Jeffrey C. Mando, ADAMS, STEPNER,

WOLTERMANN & DUSING, P.L.L.C., Covington, Kentucky, for Appellant. Charles

H. Schaffner, Covington, Kentucky, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Kenneth O. Kennedy was embroiled

in a zoning dispute about the expansion of a strip mall next to his home. In May 2005,

he approached Joseph Schutzman, a police officer and building inspector, in the Villa

1

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 2

Hills city building. Refusing to speak to Kennedy, Schutzman left the city building.

Kennedy told nearby city workers in the building that “that son of a bitch [Schutzman]

broke all of the zoning laws.” Schutzman ran back inside and twice asked Kennedy

what he had said. Kennedy then called Schutzman a “fat slob,” and Schutzman

responded by arresting Kennedy for disorderly conduct. After the criminal case was

resolved in his favor, Kennedy sued several defendants, including Schutzman, alleging

various claims, including wrongful and retaliatory arrest.

The district court granted summary judgment to all defendants except

Schutzman, who has appealed the district court’s denial of qualified immunity. Viewing

the facts favorably to Kennedy, we assume that his outburst was not unreasonably loud

and did not threaten to generate public alarm. Because a reasonable officer could not

have believed that he had probable cause to arrest Kennedy under the circumstances that

Kennedy has described, we AFFIRM the denial of qualified immunity on Kennedy’s

Fourth Amendment claim of wrongful arrest. Moreover, because a factfinder could

determine that the personal insults motivated Schutzman to arrest Kennedy, we also

AFFIRM the denial of qualified immunity on Kennedy’s First Amendment claim of

retaliatory arrest. Accordingly, we REMAND the case for further proceedings

consistent with this opinion.

I. BACKGROUND

Since 1989, Kennedy has lived at 2821 Amsterdam Road in Villa Hills,

Kentucky. Although he had assumed that the property was zoned for residential use, it

is apparently zoned instead for commercial use. Kennedy learned of the zoning problem

when an abutting strip mall announced its plan to expand. The strip mall obtained a

building permit from Joseph Schutzman, who is both a police officer and a building

inspector for the City of Villa Hills, Kentucky (“City”). In December 2004, Kennedy

briefly conversed with Schutzman by phone to express opposition to the project. Later,

Kennedy sued the strip mall’s owner, the company from which he purchased his home,

and the City in state court.

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 3

When bulldozers and construction workers arrived to begin construction on May

18, 2005, Kennedy went to the Villa Hills city building to confront Schutzman. When

Kennedy arrived at 7:00 a.m., he stood in the hallway outside Schutzman’s office and

told Schutzman to “[t]ake your pick, the building [permit] is void or obsolete.” R. 22

(Kennedy Dep. at 72). Kennedy’s voice “[p]robably” was raised. Id. at 73. Schutzman

responded that the pending lawsuit prevented him from discussing the issue with

Kennedy, and then Schutzman left the building and exited into a parking lot. Still upset,

Kennedy spoke with the three city workers who were standing in an adjacent area of the

building and who had “probably heard what [Kennedy had] said” to Schutzman. Id. at

74. Kennedy told them that “[t]hat son of a bitch broke all of the zoning laws.” Id. at

78. Kennedy “[p]robably” voiced the insult “rather loudly.” Id. at 79.

The building was small, and Schutzman presumably overheard Kennedy’s

comment because Schutzman “came running back in[side],” “got in [Kennedy’s] face,”

and asked Kennedy twice what he had said. Id. “You’re a fat slob,” Kennedy

responded, “probably” yelling. Id. at 78, 80. Schutzman arrested Kennedy for

disorderly conduct. The citation that Schutzman wrote mentions “verbal abuse in front

of public works employees” and describes Kennedy as “highly agitated,” but it does not

mention how loudly Kennedy spoke. R. 22-4 (Citation). It also observed that the

“building was not open for business.” Id.

Kennedy first brought suit for his arrest in Kenton Circuit Court on May 8, 2006.

The defendants removed the case to the United States District Court for the Eastern

District of Kentucky, which dismissed the civil suit because Kennedy’s criminal case

was unresolved. On June 18, 2007, the criminal case was dismissed, and Kennedy again

sued the City and Schutzman in his individual capacity in Kenton Circuit Court.

Kennedy alleged wrongful arrest under the Fourth Amendment, retaliatory arrest in

violation of the First Amendment,1 violations of the Eighth and Fourteenth

1

Although the complaint does not mention the First or Fourth Amendments, Kennedy’s

allegations fairly raise the claims of wrongful arrest under the Fourth Amendment and of retaliatory arrest

for Kennedy’s exercise of his First Amendment rights. The complaint alleges that the City, “through its

police officer, JOSEPH SCHUTZMAN, because of the Plaintiff’s filing suit and pursuing his legitimate

claims, retaliated against the Plaintiff by falsely swearing and having him arrested for a misdemeanor

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 4

Amendments, and several state-law torts: false arrest/imprisonment, intentional

infliction of severe emotional distress, malicious prosecution, defamation (libel and

slander), and abuse of process. The defendants once again removed the case to the

United States District Court for the Eastern District of Kentucky.

The district court granted summary judgment to the City because a municipality

is not liable for the actions of an employee if the employee had no “history of illegal or

retaliatory arrests” and the municipality had no reason to suspect that “allowing a police

officer to serve as a building inspector would lead to the violation of its citizens’

constitutional rights.” R. 28 (Dist. Ct. Op. at 7). Schutzman sought summary judgment

on the basis of qualified immunity, which the district court denied. With respect to the

claim of Fourth Amendment wrongful arrest, the district court reasoned that a jury

should resolve the factual dispute about the volume of Kennedy’s outburst. With respect

to the claim of First Amendment retaliation, the district court identified a question of fact

concerning Schutzman’s reason for arresting Kennedy. The arrest may have been

“motivated by the[] history” of conflict between the two men or “by the content – not

the volume – of the speech in question,” in which case the arrest was retaliatory and

unconstitutional. Id. at 13–16. The district court disposed of the remaining state-law

and federal constitutional claims on their merits.

Schutzman, the only remaining defendant, has appealed the denial of qualified

immunity. Pursuant to the collateral-order doctrine, the district court’s denial of

qualified immunity to Schutzman is a final order over which this court has appellate

jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “Interlocutory review is

permitted where a defendant argues merely that his alleged conduct did not violate

clearly established law. . . . This is a legal question and is independent from the question

charge for which he [JOSEPH SCHUTZMAN] had no credible evidence.” R. 1-2 (Compl. ¶ 12 (bracketed

text in original)). It also states that Schutzman, “in violation of [§ 1983] . . . , did conspire to harass and

intimidate the Plaintiff . . . , thereby depriving him of his constitutional rights, by the use of threats of

physical arrest, false imprisonment, force and retaliation.” Id. at ¶ 18. Finally, it asserts that Schutzman

sought “to punish and retaliate against the Plaintiff for his legitimate inquiries and complaints against the

[City] and JOSEPH SCHUTZMAN.” Id. at ¶ 20.

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 5

of whether there are triable issues of fact.” Everson v. Leis, 556 F.3d 484, 496 (6th Cir.

2009).

II. ANALYSIS

We “review the denial of summary judgment on grounds of qualified immunity

de novo because application of this doctrine is a question of law. But to the extent that

there is disagreement about the facts, . . . we must review the evidence in the light most

favorable to the Plaintiff, taking all inferences in his favor.” Swiecicki v. Delgado, 463

F.3d 489, 497 (6th Cir. 2006) (internal citations, quotation marks, and alteration marks

removed; ellipses in original), abrogated on other grounds by Wallace v. Kato, 549 U.S.

384 (2007). Kennedy bears the burden “to show that [Schutzman] is not entitled to

qualified immunity.” Id. at 498.

“In civil damage actions arising out of government officials’ performance of

discretionary functions, the officials are generally entitled to qualified immunity from

suit ‘insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Greene v.

Barber, 310 F.3d 889, 894 (6th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Pearson v. Callahan recently restated the test for determining whether an

official is entitled to qualified immunity. 555 U.S. 223, 129 S. Ct. 808 (2009). “First,

a court must decide whether the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right. Second, . . . the court must decide whether the right

at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.”

Id. at 815–16 (internal citations omitted). After Pearson, courts may “exercise their

sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.”

Id. at 818.

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 6

A. Fourth Amendment Claim of Wrongful Arrest2

For purposes of this appeal, Schutzman concedes that a genuine issue of material

fact exists about the amount of noise that Kennedy made, and therefore whether

Schutzman violated Kennedy’s constitutional right to be free from wrongful arrest. At

stake is the second question: whether Kennedy’s constitutional right to be free from

wrongful arrest in these circumstances was clearly established such that Schutzman

should have known of it. We conclude that Kennedy’s right was clearly established.

“[A]n arresting agent is entitled to qualified immunity if he or she could

reasonably (even if erroneously) have believed that the arrest was lawful, in light of

clearly established law and the information possessed at the time by the arresting agent.”

Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir.), cert. denied, 554 U.S. 903 (2008).

Thus, even if a factual dispute exists about the objective reasonableness of the officer’s

actions, a court should grant the officer qualified immunity if, viewing the facts

favorably to the plaintiff, an officer reasonably could have believed that the arrest was

lawful. For Kennedy to defeat qualified immunity, his right “must have been ‘clearly

established’ in a . . . particularized . . . sense: The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). That courts adopt

different “verbal formulation[s] of the controlling standard” is irrelevant so long as the

conduct that they prohibit is “not distinguishable in a fair way from the facts presented

in the case at hand.” Saucier v. Katz, 533 U.S. 194, 202–03 (2001), receded from on

other grounds by Pearson, 129 S. Ct. 808. “[G]eneral statements of the law are not

inherently incapable of giving fair and clear warning,” and it is not necessary that “the

very action in question ha[ve] previously been held unlawful.” Hope v. Pelzer, 536 U.S.

2

Kennedy’s response brief does not expressly challenge Schutzman’s request for qualified

immunity on the Fourth Amendment claim. “This court,” however, “cannot be forced to reverse the

district court due merely to the []appellees’ failure to respond to the []appellant’s arguments.” Leary v.

Daeschner, 228 F.3d 729, 741 n.7 (6th Cir. 2000). Thus, appellees do not waive claims by failing to

respond to appellants’ arguments on appeal. Id. (“[The cross-appellant] cites cases for the proposition that

appellants who do not raise an argument on appeal waive that argument, but he cites no such cases

suggesting the same is true for appellees. Indeed, this court can affirm the district court on any basis

supported by the record.”).

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 7

730, 740–41 (2002) (internal quotation marks omitted). “[N]otable factual distinctions”

between prior decisions and the facts of a case do not resurrect qualified immunity “so

long as the prior decisions gave reasonable warning that the conduct then at issue

violated constitutional rights.” Id. at 740 (internal quotation marks omitted).

“[P]re-existing law” must, however, make “the unlawfulness . . . apparent.” Anderson,

483 U.S. at 640.

In the context of qualified immunity, preexisting, clearly established law refers

to “binding precedent from the Supreme Court, the Sixth Circuit, the district court itself,

or other circuits that is directly on point.” Holzemer v. City of Memphis, 621 F.3d 512,

527 (6th Cir. 2010) (internal quotation marks omitted); see Pearson, 129 S. Ct. at

822–23 (finding a doctrine clearly established because three federal courts of appeals

and two state supreme courts had unanimously accepted it, even though the circuit in

which the conduct occurred had not done so). At the same time, “‘[w]hether an officer

is authorized to make an arrest ordinarily depends, in the first instance, on state law.’”

Leonard v. Robinson, 477 F.3d 347, 354 (6th Cir. 2007) (quoting Michigan v.

DeFillippo, 443 U.S. 31, 36 (1979)). Put differently, state law defines the offense for

which an officer may arrest a person, while federal law dictates whether probable cause

existed for an arrest. See, e.g., Devenpeck v. Alford, 543 U.S. 146, 151–53 (2004) (using

constitutional probable-cause standards when a plaintiff had been arrested for an alleged

violation of state law and sued under § 1983 for unlawful arrest).

Based on how the Kentucky statute defines disorderly conduct, we conclude that

an officer could not reasonably believe that he had probable cause to arrest Kennedy.

The statute provides that “[a] person is guilty of disorderly conduct . . . when[,] in a

public place and with intent to cause public inconvenience, annoyance, or alarm, or

wantonly creating a risk thereof, he,” among other options, “[m]akes unreasonable

noise.” Ky. Rev. Stat. § 525.060(1)(b). Commentary to the statute explains that

“‘[r]easonable’ in this context depends upon the time, place, nature[,] and purpose of the

noise.” It also clarifies that “public alarm”

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 8

is not intended to include conduct which disturbs the peace and quiet of

any “one” person. . . . [T]he statute requires public alarm as

distinguished from private alarm. For example, a person may not be

arrested for disorderly conduct as a result of activity which annoys only

the police. The statute is not intended to cover the situation in which a

private citizen engages in argument with the police so long as the

argument proceeds without offensively coarse language or conduct which

intentionally or wantonly creates a risk of public disturbance.3

Ky. Rev. Stat. § 525.060 cmt. (emphasis added).

Here, the district court found the volume of Kennedy’s speech indeterminate in

part because the lawyers for the defense pressed Kennedy about the volume of his

speech before Kennedy “equivocally agree[d] that his insults to Schutzman were spoken

loudly.” R. 28 (Dist. Ct. Op. at 11). Although we believe that the structure of the

deposition does not make Kennedy’s concession any less meaningful, the actual

admissions, viewed in Kennedy’s favor, were meager. He admitted that he “[p]robably”

said “[t]hat son of a bitch broke all of the zoning laws” “rather loudly,” and that he

“probably did” “yell” when calling Schutzman a “fat slob.” R. 22 (Kennedy Dep. at

78–80). Construing these probabilities in the light most favorable to Kennedy, we

conclude that a genuine issue of material fact remains about whether Kennedy yelled or

spoke loudly at all. Even if he did yell and speak rather loudly, the volume of his voice

might not have been unreasonable. Finally, as the commentary to § 525.060 makes

clear, Kentucky law does not criminalize arguments and noise that disturb only police

officers because such conduct does not risk public alarm. Accord Payne v. Pauley, 337

F.3d 767, 777 (7th Cir. 2003) (holding that, under Illinois law, “[p]olice officers must

be more thick skinned than the ordinary citizen and . . . must not conceive that every

threatening or insulting word, gesture, or motion amounts to disorderly conduct”

(internal quotation marks omitted)). Indeed, because the First Amendment requires that

police officers tolerate coarse criticism, the Constitution prohibits states from

criminalizing conduct that disturbs solely police officers. See, e.g., City of Houston v.

Hill, 482 U.S. 451, 461–63 (1987) (“[T]he First Amendment protects a significant

3

The latter part of this passage purports to describe subsection (a) of § 525.060(1). However, the

phrase that it is describing, “public alarm,” is located in a clause that applies to every subsection.

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 9

amount of verbal criticism and challenge directed at police officers. . . . The freedom of

individuals verbally to oppose or challenge police action without thereby risking arrest

is one of the principal characteristics by which we distinguish a free nation from a police

state.”); Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring)

(“[A] properly trained officer may reasonably be expected to exercise a higher degree

of restraint than the average citizen, and thus be less likely to respond belligerently to

fighting words.” (internal quotation marks omitted)); Arnett v. Myers, 281 F.3d 552, 560

(6th Cir. 2002) (“It is well-settled that the freedom to criticize public officials and

expose their wrongdoing is a fundamental First Amendment value . . . .”). Based on the

evidence currently before this court, only city employees heard Kennedy speak and the

city building was “not open for business” at the time, R. 22-4 (Citation), which

minimizes any risk of public alarm. Given the context of the arrest as Kennedy has

portrayed it, a reasonable officer could not conclude that Kennedy’s outburst provided

probable cause for his arrest.

Cases interpreting Kentucky Revised Statute § 525.060 do not alter this

conclusion. This court recently called the case law interpreting the statute “very sparse,”

Nails v. Riggs, 195 F. App’x 303, 311–12 (6th Cir. 2006) (unpublished opinion), and

only two Kentucky cases prior to the date of Kennedy’s arrest mentioned the

unreasonable-noise provision. Neither involved facts similar to Kennedy’s

circumstances. In Commonwealth v. Jones, “a mother, who was accompanied by four

infant children,” complained to a police officer that the defendant was “shouting

obscenities at the military components of [a] parade.” 880 S.W.2d 544, 544 (Ky. 1994).

The defendant then “called the officer a ‘Nazi pig motherfucker’” and was thereupon

arrested and charged with disorderly conduct in violation of § 525.060(1)(b) and (d). Id.

at 545. Following the defendant’s criminal conviction and appeal, the Kentucky

Supreme Court held that sufficient evidence supported the jury’s guilty verdict because

the officer had testified that the defendant’s “volume of speech [was] greater than a

normal speaking voice” and the defendant had admitted that she was “yelling.” Id. at

545–46. Application of the statute varies by context, and the court reasoned that

“[c]ontent, volume[,] and surrounding circumstances may be considered together when

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 10

making a determination of reasonableness.” Id. at 546; cf. Swiecicki, 463 F.3d at

499–500 (concluding that an officer lacked probable cause to arrest a fan at a baseball

stadium for violating a city ordinance because the venue “encourages fans to cheer and

make noise, meaning that loud or even rowdy behavior was commonplace at games”).

The risk of public alarm was greater in Jones than in this case because here only three

city employees—and no members of the public—were present in the city building. The

posture of the case also differs: perhaps Kennedy’s admissions could support a jury

verdict against him, but, in a qualified-immunity analysis at the summary-judgment

stage, we are constrained to view the facts favorably to Kennedy. Once we do so, there

is no basis on these facts on which an officer could conclude that he had probable cause

to arrest Kennedy.

Similarly, in Collins v. Commonwealth, No. 2002-CA-001991-MR, 2004 WL

315035, at *1 (Ky. Ct. App. Feb. 20, 2004) (unpublished opinion), the defendant was

convicted of disorderly conduct after he “yelled and cursed at his girlfriend to leave the

premises” of his trailer and defied officers’ repeated requests that he remain in his trailer.

The court of appeals affirmed because the defendant had used “offensively coarse

language” at 2:39 a.m. in a residential trailer park when “there was no reasonable

purpose for the noise.” Id. In contrast, here Kennedy’s outburst was not at night, and

it occurred at a city building rather than a residential trailer park. Kennedy used coarse

language, and, in light of the preexisting litigation and the instructions that prohibited

the city employees from speaking to Kennedy, see R. 22 (Kennedy Dep. at 64–65, 72,

75), the exchange was purposeless. Yet Kennedy did not pose the risk of public alarm

that Collins did. There were no third parties, such as Collins’s girlfriend, whom an arrest

would protect. There were also no third parties, such as the other trailer-park residents,

whom Kennedy disturbed. In sum, the cases interpreting the unreasonable-noise

provision do not show that Kennedy’s conduct—viewed in the light most favorable to

him—provided probable cause on which to believe that Kennedy had violated Kentucky

law.

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 11

Finally, the district court observed that “the jury could conclude that Kennedy

was arrested for insulting Schutzman as opposed to making ‘unreasonable noise.’” R.

28 (Dist. Ct. Op. at 13). Unless discriminatory motive forms part of the cause of action

itself, Poe v. Haydon, 853 F.2d 418, 430 (6th Cir. 1988), the question whether a

plaintiff’s right was clearly established is objective, rendering irrelevant the official’s

motives, Mitchell, 472 U.S. at 517 (“Harlow v. Fitzgerald, 457 U.S. 800 (1982), . . .

purged qualified immunity doctrine of its subjective components . . . .”). Regardless of

why Schutzman made the arrest, the relevant inquiry is whether an officer with no ill

will toward Kennedy could have believed that he had probable cause to arrest Kennedy.

We answer no, rendering qualified immunity inappropriate on the claim of wrongful

arrest. For these reasons, we therefore AFFIRM the district court’s denial of

Schutzman’s motion for summary judgment with respect to the Fourth Amendment

claim of wrongful arrest.

B. First Amendment Claim of Retaliatory Arrest

In contrast to its role in the Fourth Amendment context, motive is relevant to

Kennedy’s claim that Schutzman arrested Kennedy in retaliation for Kennedy’s exercise

of his First Amendment rights.

A retaliation claim essentially entails three elements: (1) the plaintiff

engaged in protected conduct; (2) an adverse action was taken against the

plaintiff that would deter a person of ordinary firmness from continuing

to engage in that conduct; and (3) there is a causal connection between

elements one and two—that is, the adverse action was motivated at least

in part by the plaintiff's protected conduct.4

4

The Sixth Circuit has not decided whether lack of probable cause is an element in wrongful-

arrest claims after the Supreme Court’s ruling in Hartman v. Moore, 547 U.S. 250 (2006), which made lack

of probable cause an element for claims of malicious prosecution. Leonard, 477 F.3d at 355. Hartman

was about inducement to prosecute, which involves causal chains that are “usually more complex than . . .

in other retaliation cases.” Id. at 261.

We applied Hartman to claims of retaliatory prosecution and wrongful arrest in Barnes v. Wright,

449 F.3d 709, 717–20 (6th Cir. 2006). In Barnes, Hartman’s “concerns regarding the intervening actions

of a prosecutor d[id] not apply” to the plaintiff’s retaliatory-prosecution claim because the arresting

officers initiated grand jury proceedings themselves. Id. at 720. Because Hartman said that retaliatory-

prosecution claims “usually”—not always—involve complex causal chains, however, the absence of

probable cause was still an element for the claim of retaliatory prosecution. The absence of probable cause

was also an element for the claim of wrongful arrest because that claim was factually interrelated to the

allegedly retaliatory prosecution in two ways. First, the arresting agents initiated grand jury proceedings

against the plaintiff. Second, they arrested the plaintiff only after the grand jury had indicted him. Thus,

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 12

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). “A ‘motivating

factor’ is essentially [a] but-for cause . . . .” Leonard, 477 F.3d at 355. For purposes of

asserting qualified immunity, Schutzman has waived any challenge to the first element

by omitting it from his opening brief.5 Thaddeus-X, 175 F.3d at 403 n.18. Schutzman

conceded the second element in the district court and has not contested it on appeal. The

only question remaining about whether Kennedy’s constitutional right was violated is

whether Kennedy’s speech motivated the arrest. To defeat Schutzman’s qualified-

immunity defense, Kennedy must also demonstrate that his right to be free from

retaliatory arrest in such a context was clearly established.

Because direct evidence of motive is difficult to produce, “claims involving proof

of a defendant’s intent seldom lend themselves to summary disposition” and

“circumstantial evidence may provide sufficient evidence of retaliatory intent to survive

summary judgment.” Holzemer, 621 F.3d at 525–26 (internal quotation marks and

alterations removed). “Once a plaintiff raises an inference that the defendant’s conduct

was motivated in part by plaintiff's protected activity, the burden shifts and [the]

defendant,’” to obtain summary judgment, must “demonstrate that [he] would have taken

the same action in the absence of the protected activity.” Ctr. For Bio-Ethical Reform,

Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (internal quotation marks

omitted).

Barnes governs the applicability of Hartman to claims of wrongful arrest only when prosecution and arrest

are concomitant.

Unlike the plaintiff in Barnes, Kennedy has raised an ordinary retaliation claim. Following the

commonplace pattern for allegedly retaliatory arrests, Schutzman arrested Kennedy prior to any

prosecutorial or grand jury involvement. The straightforward connection between Schutzman’s alleged

animus and the arrest that he effectuated suggests that Kennedy may not need to demonstrate a lack of

probable cause to succeed on his claim of wrongful arrest. See, e.g., CarePartners LLC v. Lashway, 545

F.3d 867, 877 n.7 (9th Cir. 2008) (limiting Hartman to retaliatory-prosecution actions in which the absence

of probable cause is “need[ed] to ‘bridge’ a causation gap”). We defer resolution of this question,

however, because it does not decide this appeal. If the absence of probable cause is not an element, then,

as explained below, Kennedy should prevail because he satisfies the three actual elements. If the absence

of probable cause is an element, then Kennedy still should prevail because the Fourth Amendment analysis

shows that Schutzman lacked probable cause for the arrest. See Leonard, 477 F.3d at 355 (declining to

decide whether probable cause is an element for the same reason).

5

In any event, Kennedy’s speech seems to be the type that the First Amendment protects. Even

crass language used to insult police officers does not fall within the “very limited” unprotected category

of “fighting words.” Greene, 310 F.3d at 892–93, 896 (holding that a § 1983 plaintiff did not use fighting

words when he told a police officer “you’re really being [an] asshole” and “if that’s how you feel you’re

really stupid” (alteration in original)).

No. 09-6442 Kennedy v. City of Villa Hills, Kentucky et al. Page 13

Schutzman admits that Kennedy was angry with him, but argues that the

evidence is silent about Schutzman’s own motives. If a plaintiff’s motives can create an

inference about the defendant’s motives, then, says Schutzman, plaintiffs could eliminate

the defense of qualified immunity simply by threatening a lawsuit before being arrested.

We need not address Schutzman’s argument because we disagree with Schutzman’s

interpretation of the record. Kennedy’s deposition reveals more than his own anger.

Schutzman “came running back in” to the building, “got in [Kennedy’s] face,” and

arrested Kennedy immediately after Kennedy called Schutzman a “fat slob.” R. 22

(Kennedy Dep. at 79, 81). At the summary-judgment stage, this evidence suffices to

show that the content of Kennedy’s speech may have been a motivating factor for

Schutzman to arrest Kennedy.

Finally, Kennedy’s right to be free from retaliatory arrest after insulting an

officer was clearly established. See Greene, 310 F.3d at 897 (“[The officer] should have

known that an arrest undertaken at least in part as retaliation for a constitutionally

protected insult to the officer’s dignity would be impermissible unless it could be shown

that the officer would have made the arrest even in the absence of any retaliatory

motive.”); Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (“[T]he First

Amendment right to criticize public officials is well-established . . . . Furthermore, it is

well-established that a public official’s retaliation against an individual exercising his

or her First Amendment rights is a violation of § 1983.”). Motivation may be difficult

to ascertain after the fact, but once the factfinder determines that protected speech

motivated the arrest, the illegality of the arrest becomes readily “apparent.” Anderson,

483 U.S. at 640.

III. CONCLUSION

We AFFIRM the district court’s denial of qualified immunity to Schutzman on

Kennedy’s Fourth Amendment claim for wrongful arrest and on his First Amendment

claim for retaliatory arrest. We REMAND for further proceedings.