Swiecicki v. Delgado

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0355p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

JEFFREY SWIECICKI,

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No. 05-4036

v.

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JOSE DELGADO, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 03-02571—Lesley Brooks Wells, District Judge.

Argued: May 31, 2006

Decided and Filed: September 15, 2006

Before: GILMAN, SUTTON, and COOK, Circuit Judges.

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COUNSEL

ARGUED: Stephen W. Gard, Cleveland, Ohio, for Appellants. Thomas R. Wolf, REMINGER &

REMINGER, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen W. Gard, Cleveland, Ohio, for

Appellants. Thomas R. Wolf, REMINGER & REMINGER, Cleveland, Ohio, for Appellee.

GILMAN, J., delivered the opinion of the court, in which COOK, J., joined. SUTTON, J.

(pp. 14-17), delivered a separate opinion concurring in part, concurring in the judgment in part and

dissenting in part.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. While attending a Cleveland Indians baseball

game, Jeffrey Swiecicki, along with several of his friends, loudly cheered for some players and

heckled others. Officer Jose Delgado, an off-duty police officer for the City of Cleveland, was in

full uniform and working for the ballpark as a security guard. He allegedly heard Swiecicki using

profane language. Delgado asked Swiecicki to halt his behavior or leave the stadium. When

Swiecicki did not respond, Delgado placed Swiecicki in the “escort position” and began leading him

out of the bleachers. In the course of leaving the stadium, Delgado arrested Swiecicki and wrestled

him to the ground. Swiecicki was later charged with and convicted of disorderly conduct and

1

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resisting arrest, but his convictions were overturned on appeal. See City of Cleveland v. Swiecicki,

149 Ohio App. 3d 77, 82 (Ohio Ct. App. 2002).

He subsequently filed an action in federal district court pursuant to 42 U.S.C. § 1983,

alleging that Delgado had violated his constitutional rights by arresting him based on the content of

his speech, had effectuated the arrest without probable cause, and had used excessive force during

the arrest. Swiecicki also raised various state-law claims. The district court granted summary

judgment to Delgado, holding that the statute of limitations had run on Swiecicki’s excessive-force

claim, that Delgado was entitled to qualified immunity on the remaining federal claims, that he was

entitled to judgment as a matter of law on the state-law claim of malicious prosecution, and that

Swiecicki’s other state-law claims should be dismissed without prejudice. For the reasons set forth

below, we REVERSE the judgment of the district court and REMAND the case for further

proceedings consistent with this opinion.

I. BACKGROUND

On September 25, 2001, Swiecicki and several of his friends attended a Cleveland Indians

baseball game at Jacobs Field. During the game, Swiecicki heckled members of both teams,

particularly those playing the left field position, and consumed two beers.

At all relevant times, Delgado, a City of Cleveland police officer, was working as a security

guard and was stationed at a tunnel near the bleachers where Swiecicki and his friends were seated.

Delgado was officially off-duty, but he was wearing his police uniform with his badge and was

carrying the weapons issued by the police department. Wilfred Labrie, a host greeter for Jacobs

Field, was assigned to a section near Delgado. Both of these men were hired to provide assistance

and to monitor the fans’ behavior.

In conjunction with Gateway Economic Development Corporation (Gateway), the owner of

Jacobs Field, the Indians promulgated various rules and regulations to govern fan behavior. The rule

relevant to the present case provides as follows:

Fan Behavior: Persons using obscene or abusive language, or engaging in any other

antisocial conduct offensive to those around them, will be asked by Cleveland

Indians personnel to cease this conduct. If the offensive conduct persists, those

involved will be subject to ejection from the ballpark.

Although the fan-behavior rule prohibits offensive or abusive language, no similar rule prohibits

loud yelling, heckling, or booing. Swiecicki admits that he led a group of fans in various heckles

and cheers. He also contends that “almost the entire bleachers were yelling.”

Around the seventh inning, both Delgado and Labrie allegedly heard loud, profane language

coming from the bleachers. Delgado claims that he heard Swiecicki yell “Branyon, you suck” and

“Branyon, you have a fat ass.” Swiecicki admits to loud heckling, but denies that he used profane

language. Although Swiecicki also denies that he was intoxicated, Delgado contends that he saw

Swiecicki with a beer in his hand at the time of the offensive comments. Labrie, however, testified

that neither the bleachers nor Swiecicki were directly visible from where Labrie and Delgado were

stationed.

Based upon Delgado’s perception of Swiecicki’s comments and realizing that Swiecicki

might be intoxicated, Delgado approached Swiecicki and told him to “cut it out.” Swiecicki did not

respond. Although no fan specifically requested that Delgado take action to stop Swiecicki’s

behavior, Delgado alleges that a man with a young daughter later thanked Delgado for asking

Swiecicki to lower his voice. After again motioning to Swiecicki to halt his behavior with no

success, Delgado told Swiecicki: “We can either do this the easy way or the hard way.” Swiecicki

No. 05-4036 Swiecicki v. Delgado Page 3

then approached Delgado. Delgado moved toward Swiecicki, grabbed his arm and shirt to place him

into the “escort position,” and led him towards the tunnel to exit the stadium.

While Delgado was escorting Swiecicki through the tunnel, Swiecicki asked Delgado “on

more than 10 occasions” what he had done to prompt Delgado’s actions. Delgado provided no

response. Swiecicki’s brother Scott, along with three other men, began to follow Delgado, also

asking Delgado what Swiecicki had done wrong. At this point, Delgado alleges that Swiecicki

jerked his arm away to break from Delgado’s grasp. Swiecicki denies any physical resistance.

Delgado then used an “arm bar” and wrestled Swiecicki to the ground, with Swiecicki hitting his

head on a door before falling to his knees. On the ground, Delgado pushed Swiecicki’s face into the

concrete and continued to apply pressure to his right arm despite Swiecicki’s pained expression.

Delgado then told Swiecicki that he was under arrest.

Swiecicki was later charged with aggravated disorderly conduct pursuant to Cleveland

Codified Ordinance § 605.03 and with resisting arrest pursuant to Cleveland Codified Ordinance

§ 615.08. He was found guilty by the Cleveland Municipal Court of the lesser-included offense of

disorderly conduct and of resisting arrest. The Ohio Court of Appeals, however, reversed his

convictions based on insufficiency of the evidence. See Swiecicki, 149 Ohio. App. 3d at 82.

Swiecicki then filed the present suit in federal district court pursuant to 42 U.S.C. § 1983,

alleging that Delgado had violated his constitutional rights by arresting him (1) based on the content

of his speech in violation of the First Amendment, (2) without probable cause in violation of the

Fourth Amendment, and (3) through the use of excessive force in violation of the Fourth

Amendment. Swiecicki also accused Delgado of assault, battery, false imprisonment, and malicious

prosecution, all in violation of Ohio law. The district court granted summary judgment in favor of

Delgado, holding that qualified immunity acts as a complete bar to all of Swiecicki’s federal claims.

It also granted summary judgment to Delgado on the malicious-prosecution claim and dismissed the

remaining state-law claims without prejudice for lack of jurisdiction.

II. ANALYSIS

A. Standard of review

We review de novo the district court’s grant of summary judgment. Int’l Union v. Cummins,

434 F.3d 478, 483 (2006). Summary judgment is proper where there exists no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

In considering a motion for summary judgment, the district court must construe the evidence and

draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

B. The statute of limitations as applied to Swiecicki’s Fourth Amendment

excessive-force claim

Swiecicki first argues that the district court erred in holding that his Fourth Amendment

excessive-force claim was barred by the statute of limitations. The district court’s determination is

a question of law that we review de novo. Wolfe v. Perry, 412 F.3d 707, 713 (6th Cir. 2005)

(reversing a district court’s determination that the complaint was filed after the statute of limitations

had run). Because Congress did not specify a statute of limitations for claims made pursuant to

§ 1983, we must borrow the statute of limitations governing personal injury claims in Ohio. Banks

v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003) (holding that “federal courts must borrow the

statute of limitations governing personal injury actions in the state in which the section 1983 action

was brought”). The appropriate statute of limitations in this case is two years. See id. When the

No. 05-4036 Swiecicki v. Delgado Page 4

statute of limitations begins to run depends on the nature of the claim under § 1983. Heck v.

Humphrey, 512 U.S. 477, 489 (1994) (holding that a § 1983 claim for malicious prosecution does

not accrue “until the criminal proceedings have terminated in the plaintiff’s favor”).

Typically, the statute of limitations for filing an action based on excessive force begins to

run at the time the injury is discovered, which in most cases is at the time of the arrest. If, however,

a cause of action under § 1983 would necessarily imply the invalidity of the plaintiff’s underlying

criminal conviction, the statute of limitations does not begin to run until the underlying conviction

is reversed or expunged. Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir. 1999) (holding that

the statute of limitations for a criminal defendant’s § 1983 claim did not begin to run until the

underlying criminal proceedings had concluded in his favor). Swiecicki filed his complaint on

December 19, 2003, more than two years after his arrest but just over one year after his underlying

convictions were reversed. The key inquiry, then, is whether Swiecicki’s excessive-force claim

pursuant to § 1983 would have implied the invalidity of his criminal convictions.

This court has previously held, in an unpublished decision, that a claim of excessive force

does not necessarily relate to the validity of the underlying conviction and therefore may be

immediately cognizable. Hodge v. City of Elyria, 126 F. App’x 222, 225 (6th Cir. March 3, 2005)

(holding that the statute of limitations began to run at the time of arrest because “Hodge’s conviction

related to drug possession and tampering with evidence [was] wholly unrelated to excessive force.”).

The district court below seized on this holding and, with no further analysis, declared that

Swiecicki’s excessive-force claim was barred by the statute of limitations. What the district court

failed to recognize, however, is that in order to determine whether the § 1983 claim would imply the

invalidity of the offense, “the court must look both to the claims raised under § 1983 and to the

specific offenses for which the § 1983 claimant was convicted.” Hughes v. Lott, 350 F.3d 1157,

1161 n.2 (11th Cir. 2003) (emphasis added) (interpreting Heck, 512 U.S. at 487 n.6); see also Heck,

512 U.S. 487 n.6 (suggesting that the statute of limitations for a § 1983 claim based on an

unreasonable seizure would not begin to run until the plaintiff’s underlying conviction for resisting

arrest had been overturned because, in order to prevail on his § 1983 claim, the plaintiff would have

to negate an element of the particular offense for which he was convicted). Hodge is therefore not

dispositive both because it is unpublished and because the underlying offenses in Hodge were

unrelated to the claim of excessive force.

Cleveland’s resisting-arrest ordinance provides that “[n]o person, recklessly or by force,

shall resist or interfere with a lawful arrest of himself or another.” Cleveland Cod. Ord. § 615.08.

A conviction for resisting arrest thus requires that the underlying arrest be lawful. This court has

held in an unpublished opinion that such a conviction necessarily includes a finding that the police

officer did not use excessive force. See White v. Ebie, 1999 WL 775914, at *1 (6th Cir. 1999)

(analyzing the relationship between a conviction for resisting arrest pursuant to the applicable Ohio

statute and a claim of excessive force pursuant to § 1983). The White court relied on Ohio law,

which provides that an arrest is not lawful if the arresting officer uses excessive force. Id.; see also

City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975) (“[I]n the absence of excessive or

unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one

he knows, or has good reason to believe, is an authorized police officer engaged in the performance

of his duties. . . .”) (emphasis added). We agree with White’s analysis.

White and the Ohio rule of law on which it relies, then, suggest that Swiecicki’s excessive-

force claim under § 1983 would have necessarily implied the invalidity of his conviction for

resisting arrest—thus indicating that the statute of limitations did not begin to run until Swiecicki’s

convictions were overturned. In City of Cleveland v. Murad, 616 N.E.2d 1116, 1120 (Ohio Ct. App.

1992), however, the Eighth District of the Ohio Court of Appeals, which includes Cleveland, limited

the rule announced in Fraley to cases in which the excessive force by the arresting officer occurred

prior to the suspect’s resistance. Because the suspect in Murad admitted that he “resisted arrest so

No. 05-4036 Swiecicki v. Delgado Page 5

forcefully that it took three officers and a civilian to subdue him,” the court concluded that the

suspect “himself was the cause of the force used in his arrest.” Id.

The Murad court thus upheld the suspect’s conviction for resisting arrest, rejecting the

argument that his resistance preceding the force used to arrest him was justifiable. Id.; see also City

of Columbus v. Purdie, Nos. 84AP-127 & 84AP-128, 1984 Ohio App. LEXIS 11679, at *8-9 (Ohio

Ct. App. Nov. 29, 1984) (unpublished) (upholding a defendant’s conviction for resisting arrest where

“the use of force [by police] was in response to the conduct of defendant”) (emphasis added). In

other words, Murad implies that in some cases a resisting-arrest conviction may stand even if

excessive force was used after the suspect’s resistance.

A synthesis of these cases indicates that we must consider the nature and extent, if any, of

Swiecicki’s resistance, paying particular attention to whether Swiecicki’s alleged resistance occurred

prior to the alleged use of excessive force by Delgado. If, as Swiecicki claims, Delgado’s use of

force was essentially unprovoked, the rule from White, 1999 WL 775914, at *1, provides that the

statute of limitations did not begin to run until Swiecicki’s convictions were overturned by the Ohio

Court of Appeals. Ohio law, as interpreted by White, explicitly provides that a lawful arrest is a

necessary element of a conviction for resisting arrest. Id. On that basis, Swiecicki’s excessive-force

claim pursuant to § 1983 would have necessarily implied the invalidity of his conviction for resisting

arrest because if the amount of force used was unlawful, an essential element of the underlying

offense for resisting arrest would have been negated. See Heck, 512 U.S. at 487 n.6 (explaining that

a plaintiff cannot bring a § 1983 claim if he would have to negate an element of the underlying

offense for which he has been convicted). The statute of limitations, under Swiecicki’s version of

the facts, therefore did not begin to run until the Ohio Court of Appeals invalidated his convictions.

On the other hand, if Swiecicki did in fact jerk his arm away from Delgado’s grasp, the

analysis from Murad suggests that the statute of limitations for Swiecicki’s excessive-force claim

began to run at the time of his arrest. The key question is one of timing. If Swiecicki resisted (i.e.,

jerked his arm away), and if the resistance occurred before the use of force by Delgado, his

conviction for resisting arrest would not be called into question even if he later recovered on a

§ 1983 excessive-force claim. Under these circumstances, the statute of limitations would have

began to run at the moment of Swiecicki’s arrest. See Shamaeizadeh, 182 F.3d at 396.

Our evaluation of the statute-of-limitations issue, however, requires us to consider the facts

as Swiecicki has alleged them. See id., 182 F.3d at 395-96 (noting that the Seventh, Eighth, and

Eleventh Circuits have created a general exception to the Heck doctrine for Fourth Amendment

unreasonable-search claims brought against state officials pursuant to § 1983, but that the Sixth

Circuit employs a case-by-case approach). In order for Swiecicki to prevail on his § 1983

excessive-force claim as he has alleged it, he must prove that Delgado employed excessive force

without provocation. Success on his § 1983 claim prior to the invalidation of his conviction by the

Ohio Court of Appeals, therefore, would have necessarily implied the invalidity of his conviction

for resisting arrest. See White, 1999 WL 775914, at *1; Fraley, 324 N.E.2d at 740. If Swiecicki had

brought his excessive-force claim before such reversal, the district court would have had to dismiss

it as Heck-barred. See Heck, 512 U.S. at 487 n.6 (“In order to prevail in this § 1983 action, he would

have had to negate an element of the offense of which he has been convicted . . . . [T]he § 1983

action will not lie.”). We therefore hold that the statute of limitations for Swiecicki’s excessive-

force claim did not begin to run until the Ohio Court of Appeals overturned his conviction.

We recognize, as Judge Sutton points out in his concurrence on this issue, that some

excessive-force claims would not necessarily imply the invalidity of a conviction for resisting arrest.

On these particular facts, however, that is not the case. The specific language of the Cleveland

resisting-arrest ordinance (requiring that the arrest be lawful in order to convict) in combination with

the applicable Ohio caselaw (where a finding of excessive force invalidates the lawfulness of an

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arrest) dictates the result here. Swiecicki’s success on his excessive-force claim would therefore

necessarily imply the invalidity of his Ohio state-court conviction for resisting arrest. Thus, the

statute of limitations did not begin to run until Swiecicki’s state-court conviction was overturned.

C. Delgado’s status as a state actor

The district court also held that Delgado was not acting under color of state law until he

actually placed Swiecicki under arrest. Swiecicki, on the other hand, argues that Delgado was acting

under color of state law during the entire incident, and that the district court erroneously relied on

disputed material facts in making its decision.

“To state a claim under § 1983, the plaintiff . . . must show that the alleged violation was

committed by a person acting under color of state law.” Redding v. St. Eward, 241 F.3d 530, 532

(6th Cir. 2001). Delgado, to be liable under § 1983, must have exercised power made possible

“only because [he was] clothed with the authority of state law.” Id. at 533 (citations and quotation

marks omitted).

Whether a police officer like Delgado was acting under the color of state law poses a difficult

question that depends on “the nature of the act performed, not the clothing of the actor or even the

status of being on duty . . . .” Id. (citation and quotation marks omitted). Relevant considerations

include whether the officer flashed a badge, identified himself as an officer, or arrested (or

threatened to arrest) someone. Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir. 2005)

(holding that an off-duty police officer acted under color of state law when he threatened a citizen

with arrest at a local festival).

The parties agree that Delgado was off-duty at the time of the incident, even though he was

wearing his police uniform and carrying his official weapons. As indicated by Redding, however,

the nature of the act, rather than Delgado’s clothing, informs the state-actor analysis. Redding, 241

F.3d at 533. We must therefore consider Delgado’s behavior during the course of the incident,

making sure to view the facts in the light most favorable to Swiecicki at this stage of the case. See

Matsushita, 475 U.S. at 587.

Swiecicki alleges that Delgado used police procedures and was therefore a state actor during

the entire incident. According to Swiecicki and several witnesses, Delgado grabbed Swiecicki by

the shirt and arm to escort him, and Delgado himself admits that he put Swiecicki in the “escort

position” before forcibly removing him from the bleachers. The district court failed to acknowledge

Swiecicki’s version of the facts, holding that “[a]lthough Officer Delgado may have been acting as

a private actor when he began escorting Jeffrey Swiecicki out of the stadium pursuant to the rules

and regulations of Jacobs Field, he asserted his official state power when he placed Jeffrey Swiecicki

under arrest.” Despite this broad pronouncement, the district court never articulated why it

concluded that Delgado was not a state actor when he first escorted Swiecicki out of the stands.

Here, we believe the record establishes that Delgado was a state actor from the beginning

of the incident in question because he “presented himself as a police officer.” Parks, 395 F.3d at

652. Our conclusion is based not only on Delgado’s attire, badge, and weapons, but also on the fact

that Delgado told Swiecicki that “[w]e can either do this the easy way or the hard way.” We

recognize that these words, standing alone, would not necessarily rise to the level of a threatened

arrest. After all, if a private citizen like Labrie, or a fellow Indians fan, had warned Swiecicki in a

similar manner, no threat of arrest would have been present. And if Delgado had simply asked

Swiecicki to calm down or risk being ejected from the game, we would be unable to conclude that

Delgado acted under color of state law. See Watkins v. Oaklawn Jockey Club, 183 F.2d 440, 443

(8th Cir. 1950) (holding that an off-duty deputy sheriff who worked as a security guard at a race

No. 05-4036 Swiecicki v. Delgado Page 7

track was not acting under color of state law when he ejected a patron because the deputy sheriff

acted in the same manner that a civilian employee of the track would have acted).

But we are required to consider all of the relevant circumstances. See Parks, 395 F.3d at 652

(“[A]ll of these factors combined create the presumption of state action.”). Rather than calmly

asking Swiecicki to leave the stadium, Delgado, while wearing his uniform and carrying his official

weapons, threatened Swiecicki and forcibly removed him from the bleachers. This evidence,

combined with the fact that Delgado was hired by Jacobs Field to intervene “in cases requiring

police action” suggests that his warning to Swiecicki amounted to a threat of arrest. Delgado

apparently believed, moreover, that the incident was one requiring “police action” because he

approached Swiecicki before Labrie had a chance to further investigate. In sum, this was more than

a case in which a civilian employed by the Indians peaceably ejected an unruly fan from a baseball

game—a procedure clearly contemplated by the rules and regulations of Jacobs Field. Delgado, in

full police uniform, forcibly removed Swiecicki in the escort position.

All of this evidence, when considered together, indicates that Delgado was acting under color

of state law at the time he removed Swiecicki from the bleachers. See id. at 652 (holding that the

off-duty police officer was a state actor because he was in uniform, identified himself as an officer,

and threatened arrest); see also Villegas v. City of Gilroy, 363 F. Supp.2d 1207, 1213 (N.D. Cal.

2005) (holding that an off-duty police officer who ejected citizens from a festival held at a public

park acted under color of state law because her presence was intended to give “some air of authority

as a police officer” and because she had “an active hand assisting in enforcing [the] dress code

policy by intimidating Plaintiffs into leaving the festival.”) (quotation marks omitted). But see

Herrera v. Chisox Corp., No. 93 C 4279, 1995 WL 599065, at *5-6 (N.D. Ill. Oct. 6, 1995)

(unpublished) (holding that off-duty deputy sheriffs did not act under color of state law when they

allegedly arrested Herrera at a Chicago Whitesox game because the deputy sheriffs were not wearing

their uniforms, did not carry official weapons, filed a Whitesox incident report rather than an arrest

report, and did not accompany officers of the Chicago Police Department who took Herrera to the

police station).

Delgado’s status as a state actor continued as he escorted Swiecicki through the tunnel. After

removing Swiecicki from the bleachers, Delgado formally placed Swiecicki under arrest, wrestled

him to the ground using the arm-bar technique, and attempted to handcuff him. Such actions were

clearly carried out “with the authority of state law.” Redding, 241 F.3d at 533. We therefore hold

that Delgado was a state actor for the duration of the incident. See Layne v. Sampley, 627 F.2d 12,

13 (6th Cir. 1980) (holding that the question of whether someone acted under the color of state law

may be determined as a matter of law unless there remain unanswered questions of fact for the jury

to decide).

D. The law of qualified immunity

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

because application of this doctrine is a question of law.” McCloud v. Testa, 97 F.3d 1536, 1541

(6th Cir. 1996). 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.”

Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004).

In determining whether a law enforcement officer is shielded from civil liability due to

qualified immunity, this court typically employs a two-step analysis: “(1) whether, considering the

allegations in a light most favorable to the party injured, a constitutional right has been violated, and

(2) whether that right was clearly established.” Estate of Carter v. City of Detroit, 408 F.3d 305,

310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In addition to the two

steps listed above, this court occasionally performs a third step in the qualified immunity analysis.

No. 05-4036 Swiecicki v. Delgado Page 8

See Estate of Carter, 408 F.3d at 311 n.2 (“Panels of this court occasionally employ a three-step

qualified immunity analysis, as opposed to the two-step analysis set forth here. . . . [B]oth the

two-step approach and the three-step approach can be said to capture the holding of [Saucier].”)

(citations omitted). When utilized, this third step requires inquiry into “whether the plaintiff offered

sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in

light of the clearly established constitutional rights.” Champion, 380 F.3d at 905 (citation and

quotation marks omitted).

The Supreme Court since Saucier has continued to use the two-step approach to qualified

immunity, but this court has noted that “the three-step approach may in some cases increase the

clarity of the proper analysis.” See Estate of Carter, 408 F.3d at 311 n.2. If, on the other hand, the

case at issue “is one of the many cases where, if the right is clearly established, the conduct at issue

would also be objectively unreasonable,” then this court has “collapse[d] the second and third

prongs” in an effort to “avoid duplicative analysis.” Caudill v. Hollan, 431 F.3d 900, 911 n.10 (6th

Cir. 2005).

Throughout the analysis, the burden is on Swiecicki to show that Delgado is not entitled to

qualified immunity. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (“Once the

qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials

are not entitled to qualified immunity.”). The district court in the present case utilized the typical

two-step analysis and assumed that Swiecicki’s constitutional rights were violated, but concluded

that Delgado was nevertheless entitled to qualified immunity. On appeal, Swiecicki claims that

Delgado (1) did not have probable cause to make the arrest, and (2) violated his clearly established

First Amendment rights by arresting Swiecicki based on the content of his speech.

1. Swiecicki’s probable-cause claim

In order for the arrest to survive constitutional scrutiny, Delgado must have had probable

cause to believe that Swiecicki committed the offenses charged. See Hunter v. Bryant, 502 U.S. 224,

228 (1991) (holding that the defendant officers were entitled to qualified immunity “if a reasonable

officer could have believed that probable cause existed” to make the arrest). In determining whether

Delgado had probable cause to arrest Swiecicki for disorderly conduct, we must decide whether, “at

that moment [of the arrest], the facts and circumstances within [his] knowledge and of which [he]

had reasonably trusty information were sufficient to warrant a prudent man in believing that the

[arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).

Probable cause is an issue of fact for the jury to resolve if there are any genuine issues of

material fact that are relevant to the inquiry. See St. John v. Hickey, 411 F.3d 762, 770 (6th Cir.

2005) (holding that genuine issues of material fact precluded summary judgment on qualified

immunity grounds). An officer may not base his probable-cause determination on speech protected

by the First Amendment. See Sandul v. Larion, 119 F.3d 1250, 1256 (6th Cir. 1997). But to the

extent that probable cause existed for either of Swiecicki’s charges (disorderly conduct or resisting

arrest), the arrest was lawful with respect to the probable-cause requirement. See Lyons v. City of

Xenia, 417 F.3d 565, 573-75 (6th Cir. 2005) (granting qualified immunity to the defendant officers

on the plaintiff’s probable-cause claim).

The offense of disorderly conduct is defined in the City of Cleveland Code, with the relevant

portions set forth below:

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605.03 Disorderly Conduct; Intoxication

...

(b) No person, while voluntarily intoxicated shall do either of the following:

(1) In a public place or in the presence of two or more persons, engage in

conduct likely to be offensive or to cause inconvenience, annoyance, or alarm

to persons of ordinary sensibilities, which conduct the offender, if he were

not intoxicated, should know is likely to have such effect on others. . . .

Cleveland Cod. Ord. § 605.03. Section 605.03 therefore requires that Delgado not only had

probable cause to believe that Swiecicki was engaging in offensive or alarming behavior, but also

that he was intoxicated. See id.

As discussed above, the first step in the qualified immunity analysis is to determine whether

Swiecicki has sufficiently alleged a constitutional violation. In determining whether Delgado had

probable cause to arrest Swiecicki, we must focus only on those facts within Delgado’s knowledge

at the moment Swiecicki was arrested. See Hunter, 502 U.S. at 228 (holding that the probable-cause

inquiry focuses on facts within the arresting officer’s knowledge at the time of the arrest). We are

still required, however, to consider the facts in the light most favorable to Swiecicki. See Champion,

380 F.3d at 900.

Swiecicki argues that his heckling was not so offensive as to give Delgado probable cause

to believe that Swiecicki was violating the disorderly conduct ordinance. He denies that he used

profane language, and he further argues that the content (i.e., the underlying message) of his speech

would have been protected by the First Amendment even if profane. See Chaplinsky v. New

Hampshire, 315 U.S. 568, 572 (1942) (holding that the only type of language denied First

Amendment protection is fighting words); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 386

(1992) (clarifying Chaplinsky and holding that even though a particular “mode of speech” (such as

fighting words) may not be protected by the First Amendment, “the underlying message” still

receives First Amendment protection). Delgado therefore lacked probable cause to arrest Swiecicki

if Delgado based his decision on protected speech. See Sandul, 119 F.3d at 1256 (holding that an

officer could not rely solely on protected speech to establish probable cause). The record suggests

such a motivation because Delgado himself indicated that he responded to Swiecicki’s “foul”

language.

Even though Delgado did not have probable cause to arrest Swiecicki based on the content

of his speech, we next consider whether the manner of Swiecicki’s speech was sufficient to lead

Delgado to believe that probable cause existed. The district court held that “a reasonable police

officer could have . . . believed that there was probable cause based on Jeffrey Swiecicki’s loud and

rowdy manner to support an arrest for aggravated disorderly conduct.” Because a genuine issue of

material fact exists as to Swiecicki’s manner of speech, this legal conclusion by the district court is

not supported by the record. Swiecicki denies that his behavior was inappropriately loud or

offensive, and the parties agree that no one actually complained about his behavior. Although

Swiecicki admits that he was leading the crowd of hecklers, the record establishes that the fans were

“really excited” at that particular game and that almost everyone in the stands was shouting. Jacobs

Field, moreover, encourages fans to cheer and make noise, meaning that loud or even rowdy

behavior was commonplace at games. See Swiecicki, 149 Ohio App.3d at 81.

Taking the facts and circumstances in the light most favorable to Swiecicki, Delgado did not

have probable cause to believe that the manner of Swiecicki’s speech rose to a level prohibited by

the disorderly conduct ordinance. See Spokane v. McDonough, 79 Wash.2d 351 (Wash. 1971)

(interpreting a similar statute and holding that conduct that is offensive to a person of ordinary

No. 05-4036 Swiecicki v. Delgado Page 10

sensibilities in one setting might be perfectly acceptable in other settings). We therefore have no

need to consider whether Delgado had probable cause to believe that Swiecicki was intoxicated.

Turning to Swiecicki’s other offense, Cleveland’s resisting-arrest ordinance provides: “No

person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another.”

Cleveland Cod. Ord. § 615.08(a). Delgado alleges that Swiecicki jerked his arm away while

Delgado was escorting him out of the stadium, but Swiecicki claims that his protests were verbal

only. Rather than taking the facts in the light most favorable to Swiecicki, the district court held that

Swiecicki’s arm movement could have been interpreted by a reasonable officer as an attempt to

resist arrest. The district court thus improperly concluded that Delgado was entitled to qualified

immunity.

Cleveland’s resisting-arrest ordinance requires a lawful arrest on the underlying charge in

order to sustain a conviction for resisting arrest. Cleveland Cod. Ord. § 615.08. The above analysis

indicates that a genuine issue of material fact exists as to whether Delgado had probable cause to

arrest Swiecicki for the underlying offense of disorderly conduct. Swiecicki’s Fourth Amendment

right to be free from an arrest without probable cause was clearly established at the time of his arrest

in 2001. We therefore reverse the district court’s grant of qualified immunity to Delgado on this

Fourth Amendment claim.

2. Swiecicki’s First Amendment claim

Swiecicki also alleges that Delgado impermissibly arrested him for saying “Branyon, you

suck” and “Branyon, you have a fat ass,” and for verbally protesting his arrest. The district court

acknowledged that “[i]f Officer Delgado arrested Jeffrey Swiecicki even partially because of the

content of his speech, then Officer Delgado would have violated Jeffrey Swiecicki’s constitutional

right to freedom of speech.” After assuming without discussion that Swiecicki had alleged sufficient

facts to demonstrate a constitutional violation, the court went on to hold that the right was not clearly

established.

In so doing, the district court failed in its duty to resolve the preliminary issue of the

constitutional violation before proceeding to the second step of the qualified immunity analysis. See

Saucier, 533 U.S. at 201 (“[I]f a [constitutional] violation could be made out on a favorable view

of the parties’ submissions, the next, sequential step is to ask whether the right was clearly

established.”) (emphasis added). Although we could remand the case in order for the district court

to properly determine this issue, we instead will make the determination ourselves in light of the

completeness of the record and in the interests of judicial economy. See Beaty v. United States, 937

F.2d 288, 291 (6th Cir. 1991) (opting to resolve an issue not decided below because “the record is

complete, and it would be a waste of everyone’s time to remand to the district court what can be

decided now as a matter of law”).

Delgado first argues that Swiecicki’s First Amendment protections did not apply in Jacobs

Field, which he alleges is a private park. In support of this proposition, Delgado contends that the

game ticket was a license that Jacobs Field could revoke at will, and that a private entity acting on

its own cannot deprive a citizen of First Amendment rights. We are not persuaded. Swiecicki does

not challenge either the fan-behavior rule or the authority of Jacobs Field officials to eject him from

the game. Instead, he challenges Delgado’s decision as a state actor to threaten and later actually

arrest him for an alleged violation of city ordinances. We therefore hold that Swiecicki’s First

Amendment protections apply.

No. 05-4036 Swiecicki v. Delgado Page 11

a. Swiecicki’s heckling

The Supreme Court in Chaplinsky held that “fighting words” receive very limited First

Amendment protection because they “are of such slight social value as a step to the truth that any

benefit that may be derived from them is clearly outweighed by the social interest in order and

morality.” 315 U.S. at 572. Fighting words were defined in Chaplinsky as “those by which their

very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. In R.A.V., the

Supreme Court clarified the scope of First Amendment protection afforded fighting words when it

held that because the underlying message expressed by the fighting words is protected by the First

Amendment even though the “nonspeech” element is not, any government regulation must be

content-neutral. 505 U.S. at 386. With regard to government regulation, this court has previously

held that unless the speech in question constitutes fighting words, it cannot serve as the basis for a

violation of municipal ordinances. See Sandul, 119 F.3d at 1256. The First Amendment therefore

provides expansive protection of Swiecicki’s speech unless he uttered fighting words.

Contrary to the law of this circuit, the district court improperly considered the facts in the

light most favorable to Delgado rather than to Swiecicki in determining that Delgado was entitled

to qualified immunity. See Champion, 380 F.3d at 900. The district court, for example, relied on

Delgado’s testimony that there was a man with a young girl who appeared to be disturbed by

Swiecicki’s comments, and that the man thanked the officer for requesting that Swiecicki stop

heckling the players. Based on this testimony, the district court held that Delgado’s actions were

reasonable given the “loudness and disruptiveness of [Swiecicki’s] heckling and the apparent

discomfort of other patrons.”

Swiecicki contends, however, that he was heckling in a manner similar to other fans at the

game, and he maintains that he did not use profane language. Delgado’s interaction with the man

and his young daughter is similarly disputed, with Swiecicki claiming that there were no children

seated near him in the bleachers. The district court clearly erred in basing its holding on facts

disputed by Swiecicki.

If, as Swiecicki alleges, Delgado arrested him based on the content of his heckling, then the

arrest constituted a violation of Swiecicki’s First Amendment rights. See Sandul, 119 F.3d at 1256.

There is also no evidence in the record that Swiecicki’s heckling rose to the level of fighting words.

Branyon, the player who was the subject of Swiecicki’s comments, apparently did not hear

Swiecicki’s jeers. Nor is there any evidence that other fans, even if they were offended by the jeers,

were incited to become violent. See Chaplinsky, 315 U.S. at 572. Because his heckling did not

provoke the type of lawless action referred to in Chaplinsky, the First Amendment provided

protection for Swiecicki’s words.

Based on our conclusion that a genuine issue of material fact exists as to whether Delgado

committed a constitutional violation in arresting Swiecicki, we now consider whether Swiecicki’s

First Amendment protection was clearly established at the time of the arrest. Chaplinsky, 315 U.S.

at 572, plainly held that speech does not lose its First Amendment protection unless it constitutes

fighting words. This court’s decision in Sandul, 119 F.3d at 1256, similarly makes clear that the

content of Swiecicki’s speech could not serve as the basis for a violation of Cleveland’s disorderly

conduct ordinance. Swiecicki’s First Amendment right to free speech was thus clearly established

at the time of Delgado’s actions in question. We therefore reverse the grant of qualified immunity

awarded to Delgado on this issue.

b. Swiecicki’s verbal protests

With regard to Swiecicki’s verbal protests during his forcible removal from the game and

subsequent arrest, this court held in McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th Cir.

2001), that “[t]here can be no doubt that the freedom to express disagreement with state action,

No. 05-4036 Swiecicki v. Delgado Page 12

without fear of reprisal based on the expression, is unequivocally among the protections provided

by the First Amendment.” “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.” City of Houston v. Hill, 482 U.S. 451, 462-63 (1987).

On the basis of McCurdy, Hill, and the discussion above regarding Chaplinsky, Swiecicki’s

verbal protests during his arrest are protected by the First Amendment unless they rose to the level

of fighting words. See also Barnes v. Wright, ___ F.3d ___, 2006 U.S. App. LEXIS 13610, at *19

(6th Cir. June 2, 2006) (holding that in order to state a successful First Amendment retaliation claim

under § 1983, the plaintiff must prove a lack of probable cause for his arrest). Police officers like

Delgado, moreover, “are expected to exercise greater restraint in their response than the average

citizen.” Id. (citation and quotation marks omitted). Delgado does not challenge these general

tenets. Instead, he claims that his decision to arrest Swiecicki was not based on Swiecicki’s verbal

protests.

In holding that “there were grounds for the resisting arrest charge that involved physical

action and had nothing to do with the content of Jeffrey Swiecicki’s speech,” the district court took

as true Delgado’s testimony that Swiecicki physically jerked his arm away from Delgado. The

district court in doing so failed to consider Swiecicki’s contention that he did not pull his arm away

during the arrest and that Delgado instead acted in response to Swiecicki’s verbal protests. If based

on Swiecicki’s version of the facts, in which no physical resistance occurred, the arrest could only

have been the result of Swiecicki’s speech—thus constituting a constitutional violation. See

McCurdy, 240 F.3d at 512, 515 (holding that an officer violated the plaintiff’s First Amendment

rights where the arrest was based on the plaintiff’s verbal challenge of “what the f**k do you

want?”); see also Greene v. Barber, 310 F.3d 889 (6th Cir. 2002) (holding that the First

Amendment prohibited a police officer from retaliating against a plaintiff who called him an

a**hole).

Given the relatively tame nature of Swiecicki’s verbal protests in comparison to those in

McCurdy and Greene, one might reasonably question whether Delgado’s decision to arrest

Swiecicki was based on Swiecicki’s protests alone. We are nevertheless required to accept

Swiecicki’s version of the facts at the summary judgment stage of this case, which leaves his verbal

protests as the only basis for Delgado’s actions. Because Delgado would have lacked probable

cause to arrest Swiecicki under these circumstances, and because Swiecicki’s right to verbally

protest his arrest was clearly established at the time of the arrest in question, we reverse the district

court’s grant of qualified immunity regarding Swiecicki’s First Amendment claim.

E. The dismissal of Swiecicki’s state-law claims

In addition to his claims for the alleged constitutional violations brought pursuant to § 1983,

Swiecicki brought several state-law claims. The district court granted summary judgment to

Delgado on the malicious prosecution claim and declined to maintain supplemental jurisdiction over

the remaining state-law claims, dismissing the latter without prejudice.

Ohio has set forth the elements of a malicious prosecution claim as follows: (1) malice in

instituting (or continuing) the prosecution, (2) lack of probable cause, and (3) termination of the

action in favor of the defendant. Trussell v. General Motors Corp., 559 N.E.2d 732, 735 (Ohio

1990) (clarifying the law on malicious prosecutions). The district court, relying on the second

element, granted summary judgment in Delgado’s favor because it had earlier held that Delgado had

probable cause for Swiecicki’s arrest.

Because we hold today that Swiecicki has raised a genuine issue of material fact as to

whether Delgado had probable cause to arrest him, only the first and third elements remain:

No. 05-4036 Swiecicki v. Delgado Page 13

(1) malice in instituting or continuing the prosecution, and (3) termination of the action in favor of

the defendant. Id. at 735. Swiecicki’s convictions were reversed on appeal, which leaves only the

malice element. As to this last element, Ohio law permits a jury to infer malice if it finds that

Delgado acted for any improper purpose. See Criss v. Springfield Twp., 564 N.E.2d 440, 443 (Ohio

1990) (“If the basis for prosecution cannot be shown, those who made the decision will appear to

have acted with no basis—that is, maliciously.”). We therefore reverse the dismissal of Swiecicki’s

malicious prosecution claim.

Concerning the dismissal of the remaining state-law claims, such a dismissal was in

accordance with the usual course of proceedings in this circuit. See Brandenburg v. Hous. Auth. of

Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (“[T]he usual course is for the district court to dismiss the

state-law claims without prejudice if all federal claims are disposed of on summary judgment.”).

But because we are reversing the grant of summary judgment on Swiecicki’s federal claims, we also

reverse the dismissal of Swiecicki’s other state-law claims. The district court will now need to

reconsider whether it should exercise jurisdiction over the various state-law claims in light of our

holding. See 28 U.S.C. § 1367(c)(3) (outlining the circumstances in which a district court can

decline to exercise supplemental jurisdiction).

III. CONCLUSION

For a baseball fan to make a “federal case” out of being ejected from a game may well strike

many as a colossal waste of judicial resources. A jury might well agree. But this is the type of case

where the ultimate result is totally dependent on whose version of the facts one believes. Under

these circumstances, the grant of summary judgment to the police officer on the basis of qualified

immunity is inappropriate. We therefore REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with this opinion.

No. 05-4036 Swiecicki v. Delgado Page 14

__________________________________________________

CONCURRING IN PART, CONCURRING IN THE

JUDGMENT IN PART AND DISSENTING IN PART

__________________________________________________

SUTTON, Circuit Judge, concurring in part, concurring in the judgment in part and

dissenting in part. I agree with the court’s disposition of Swiecicki’s false-arrest claim and write

separately to express some reservations about the disposition of the other two counts—the

excessive-force and free-speech claims.

At first blush, it would seem to me, the district court correctly rejected Swiecicki’s

excessive-force claim as a matter of law because it was time barred. The statute of limitations for

an excessive-force claim generally runs from the date of the abusive police conduct. That is not the

case, however, if success on the § 1983 claim would “necessarily imply the invalidity of his

conviction” for resisting arrest. Heck v. Humphrey, 512 U.S. 477, 487 (1994). The question, then,

is whether Heck applies: If it does, then the § 1983 action is not time barred (because Swiecicki

would have no obligation to file a suit that Heck prohibits him from filing); if it does not, then the

§ 1983 action is time barred (because Swiecicki would have no excuse for delaying the filing of his

lawsuit).

Under Heck, the salient question is whether the § 1983 claim “necessarily” implies the

invalidity of the state-court conviction. See Hill v. McDonough, 126 S. Ct. 2096, 2103–04 (2006)

(“[T]he injunction Hill seeks would not necessarily foreclose the State from implementing the lethal

injection sentence under present law, and thus it could not be said that the suit seeks to establish

‘unlawfulness [that] would render a conviction or sentence invalid.’”) (quoting Heck, 512 U.S. at

486). As a matter of sheer logic, one may bring a successful excessive-force claim without having

to establish that the resisting-arrest charge was unlawful: An officer could legitimately arrest a

suspect but use excessive force in bringing the suspect to the station. And as a matter of state-court

precedent, Ohio law permits exactly that type of excessive-force claim, namely one that follows a

lawful arrest. See City of Cleveland v. Murad, 616 N.E.2d 1116, 1120 (Ohio Ct. App. 1992)

(recognizing that an excessive-force claim and a resisting-arrest conviction may co-exist in some

settings); City of Columbus v. Purdie, Nos. 84AP-127 & 84AP-128, 1984 WL 6005, at *3 (Ohio Ct.

App. Nov. 29, 1984) (same).

Under these circumstances, the question is not whether Swiecicki’s claim, “as he has alleged

it” as a matter of fact, Maj. Op. at 5, would imply the invalidity of his state-court conviction. One

could always write a complaint so that success on its “allegations” would negate a state-court

conviction. In this case Swiecicki could have brought an utterly unrelated § 1983 action concerning

the lack of medical care he received in prison and yet still could have “alleged” that his claim arose

from a false arrest. The question rather is the relationship between the elements of the state

conviction and the elements of the § 1983 claim. Heck, 512 U.S. at 487 n.6 (explaining that a Fourth

Amendment claim of a defendant convicted in state court for resisting arrest would necessarily

imply the invalidity of that conviction because “to prevail in this § 1983 action, he would have to

negate an element of the offense of which he has been convicted”) (emphasis added). In this

instance, because some excessive-force claims would not imply the invalidity of an Ohio conviction

for resisting arrest, it follows that Swiecicki’s excessive-force claim did not “necessarily imply the

invalidity of his conviction” for resisting arrest. Id. at 487.

But even if the focus were on Swiecicki’s claim “as he has alleged it,” Maj. Op. at 5, that

would not help Swiecicki here. He did not condition his excessive-force claim on any one period

of time during his encounter with Delgado or on the assumption that he had not resisted arrest. In

full, his complaint said, “On or about the evening of September 25, 2001 Defendant JOSE

No. 05-4036 Swiecicki v. Delgado Page 15

DELGADO deliberately and intentionally used excessive and unreasonable force and violence upon

the person of Plaintiff JEFFREY SWIECICKI.” JA 11. And he could prevail on this claim whether

he resisted arrest or not. See Murad, 616 N.E.2d at 1120; Purdie, 1984 WL 6005, at *3.

This circuit (in an unpublished decision) and several other circuits (in published decisions)

have held that excessive-force claims may proceed in the face of a Heck challenge despite the

existence of an outstanding conviction for resisting arrest. See Sigley v. Kuhn, Nos. 98-3977,

99-3531, 2000 WL 145187, at *4 (6th Cir. Jan. 31, 2000) (“Sigley’s section 1983 action attempts

to prove that Kuhn used unreasonable and excessive force subsequent to Sigley’s arrest and

resistance. Nothing in that determination invalidates the underlying criminal conviction for resisting

arrest.”); Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999) (“[W]hether

[plaintiff] resisted arrest . . . is a question separate and distinct from whether the police officers

exercised excessive or unreasonable force in effectuating his arrest.”); Nelson v. Jashurek, 109 F.3d

142, 146 (3d Cir. 1997) (holding that excessive-force claim was not Heck barred because “it is

possible for a finding that the defendant was resisting arrest to coexist with a finding that the police

used excessive force to subdue him”) (internal quotation marks and brackets omitted).

Shamaeizadeh v. Cunigan, 182 F.3d 391 (6th Cir. 1999), which involved a § 1983 Fourth

Amendment claim arising from an illegal search, does not point to a contrary conclusion. Consistent

with Heck, Shamaeizadeh recognizes that “a prisoner seeking to challenge an allegedly

unconstitutional [act] in a § 1983 claim must show that a decision in his favor would not imply the

invalidity of his outstanding conviction.” 182 F.3d at 398. Shamaeizadeh could not satisfy this

burden because “the only evidence [against him in his criminal trial] . . . was evidence

discovered . . . during the allegedly illegal search.” Id. Because success in his § 1983 claim would

undermine the only evidence that could potentially prove the central elements of the criminal charge

against him, “it would not have been possible, while criminal proceedings . . . were pending, to

determine whether a decision on Shamaeizadeh’s claim would imply the invalidity of his potential

conviction.” Id.

Swiecicki does not face the same problem. While he has alleged that Delgado’s force was

unprovoked (because he did not resist the arrest), the fact remains that he need not prove that

allegation to prevail on his § 1983 claim. A jury would not need to believe all of Swiecicki’s factual

allegations to find in his favor on the excessive-force claim: It could find that even if Swiecicki had

resisted arrest, Delgado still used excessive force in response.

While the court’s approach does not seem consistent with Heck, I must acknowledge that

there is something awkward about saying the Heck bar should not apply here. Had Swiecicki been

forced to file his § 1983 action before the completion of his successful direct criminal appeal

regarding the resisting-arrest charge, he plainly would have been forced to file a diminished version

of his claim. True enough, he could still prevail on that claim. But he would have been required

to show that the officer’s use of force exceeded what a reasonable officer would do in quieting an

individual resisting arrest, as opposed to showing only that the force exceeded what a reasonable

officer would do in arresting someone who did not resist arrest. It is difficult to imagine any litigant

preferring to file the one claim over the other. In this setting, Heck also seems to force litigants to

split their claims—bringing the excessive-force claim immediately while awaiting success on

challenging the resisting-arrest conviction before bringing a false-arrest claim. Perhaps the answer

is that equitable tolling should govern situations like this one. Either way, these considerations

prompt me to concur in, rather than dissent from, the court’s judgment on this claim.

As for Swiecicki’s First Amendment claim, I strain to see how Swiecicki has raised a

cognizable claim of First Amendment retaliation, as opposed to false arrest or excessive force.

Swiecicki made two relevant statements: he criticized Cleveland Indians’ outfielder Russell

Branyon, and he questioned Delgado why he was being removed from his seat in the stadium. It

No. 05-4036 Swiecicki v. Delgado Page 16

strains credulity to believe that Delgado was retaliating against Swieciciki for criticizing one of the

Indians. Rarely does an inning in a baseball game go by (particularly during a losing season)

without some fan expressing frustration with his team. And nothing in the record suggests that

Delgado saw himself as Branyon’s knight errant. As in virtually any debate about whether one fan’s

exuberance is at the expense of another’s enjoyment, words will be involved and so will their

volume. But when, as here, the ticket to the ball game explained that any fan could be removed if

he “use[d] obscene or abusive language, or engag[ed] in any other antisocial conduct offensive to

those around [him],” JA 46, and when it is difficult to understand how a jury legitimately could infer

that Delgado removed Swiecicki in retaliation for the content of his speech, it seems to diminish

rather than uplift the First Amendment to apply it in this setting. See JA 70 (Delgado “saw

[Swiecicki] being disorderly and loud”); JA 86–87 (another employee said Swiecicki’s language

“sounded foul and abusive” to him and testified that he intended “[t]o see who” had made the

remarks “and to tell him to quit” “[b]ecause we don’t allow foul and abusive language in the Jacobs

Field, because it’s a family oriented venue”).

Independent of the question whether Delgado had probable cause to arrest Swiecicki (which

clearly presents a jury question), I also am hard pressed to understand how Swiecicki’s repeated

question—“What did I do wrong?” JA 122—shows that the decision to arrest him established a

cognizable free-speech retaliation claim. During most encounters with the police, individuals

exchange words with an officer, and the phrase “What did I do wrong?” is perhaps one of the most

frequent. Consider an everyday traffic stop. Of course, Swiecicki had a right to ask the question.

But no less importantly, the officer still had a right to arrest him without incurring the risk of a

§ 1983 free-speech claim or, worse, undertaking the precaution of inserting ear plugs in escorting

every unruly fan out of a stadium.

Our circuit’s cases also seem to be one step removed from the innocuous setting of this case.

In Greene v. Barber, 310 F.3d 889 (6th Cir. 2002), in contrast to this dispute, the plaintiff presented

evidence that his speech had motivated the officer’s actions. See id. at 892 (“Well, Lt. Barber

became very arrogant, you know, very very arrogant with me, like, look I don’t have to answer your

questions, this is the way we do it. You don’t like it, you know, that’s just like too bad. So I

responded to him, you know, you’re really being [an] asshole. And he took great exception to

that. . . . He said to me, ‘You can’t talk to me like that in my building.’ . . . I said to him—I

responded, I said, ‘What do you mean I can’t talk to you like this in your building.’ I said, ‘This

is . . .’—this is—‘I’m exercising my freedom of speech.’ I said, ‘This is the United States of

America and we have freedom of speech here and if you don’t like it you should move to another

country.’ . . . [He answered], ‘Well, not in my building,’ again, very adamantly. ‘Not in my

building,’ just like that. And that’s when I told him, I said, ‘Well, if that’s how you feel you’re

really stupid.’ And that’s when he turned to me and said, ‘You’re under arrest.’”).

McCurdy v. Montgomery County, 240 F.3d 512 (6th Cir. 2001), offers still less support for

Swiecicki’s claim. It holds only that it is clearly established that individuals may verbally challenge

an officer’s authority. Id. at 520. McCurdy did not have before it, and thus did address, the question

whether the suspect’s words motivated the officer’s actions—because the district court had not

addressed that question. See id. (“Because the district court did not address whether McCurdy’s

arrest was at least partially motivated by protected conduct, we remand for further proceedings.”);

see also Doyle v. McFadden, Nos. 04-4253, 04-4367, 2006 WL 1479047, at *2 (6th Cir. May 26,

2006) (“The McCurdy court remanded the case, as the district court had failed to inquire about

whether speech was a motivating factor in the arrest.”).

At any rate, “What did I do wrong?” offers a poor analogy to the provocative speech at issue

in that case. See id. at 515–16 (“McCurdy . . . demanded [of Officer Cole], ‘what the fu*k do you

want?’” and “exclaimed ‘what the fu*k is your job?’” and stated that “he did not have to do ‘sh*t’

that Officer Cole ordered.”). It is one thing to say that the plaintiff’s protestations in McCurdy might

No. 05-4036 Swiecicki v. Delgado Page 17

have established a triable issue of fact about free-speech retaliation on remand (the case settled

before the trial court could decide the issue); it is quite another to say that “What did I do wrong?”

definitively does so.