Robert Kennedy v. City of Cincinnati

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0042p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

ROBERT KENNEDY,

-

Plaintiff-Appellee,

-

-

No. 09-3089

v.

,

>

-

Defendants, -

CITY OF CINCINNATI, et al.,

-

-

JEFFREY ZUCKER, Police Officer; DAVID -

-

Defendants-Appellants. -

HUDEPOHL,

N

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 07-00512—Timothy S. Black, Magistrate Judge.

Argued: December 3, 2009

Decided and Filed: February 16, 2010

*

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.

_________________

COUNSEL

ARGUED: Peter J. Stackpole, CITY OF CINCINNATI, OFFICE OF CITY

SOLICITOR, Cincinnati, Ohio, for Appellants. Steven F. Stuhlbarg, LAW OFFICE,

Cincinnati, Ohio, for Appellee. ON BRIEF: Peter J. Stackpole, CITY OF

CINCINNATI, OFFICE OF CITY SOLICITOR, Cincinnati, Ohio, for Appellants.

Steven F. Stuhlbarg, LAW OFFICE, Cincinnati, Ohio, for Appellee.

*

The Honorable James G. Carr, Chief United States District Judge for the Northern District of

Ohio, sitting by designation.

1

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 2

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. Defendants Jeffrey Zucker and David Hudepohl appeal

the denial of their motion for summary judgment based on the defense of qualified

immunity from plaintiff Robert Kennedy’s procedural due process claims brought under

42 U.S.C. § 1983. For the reasons that follow, we reverse in part and affirm in part. In

doing so, we hold that Kennedy did not have a protectable property interest in his $10

City pool token, but possessed a clearly established constitutionally-protected liberty

interest not to be banned from all City recreational property without procedural due

process.

I.

The City of Cincinnati, through the Cincinnati Recreation Commission (“CRC”),

operates swimming pools and recreation facilities. “Recreation programs and facilities

are open to all citizens regardless of race, gender, color, religion, nationality, sexual

orientation or disability.” (alteration in emphasis.) The City offers access to its

swimming pools by issuing pool tokens, which cost $10. Pool tokens, however, are not

issued automatically. The City retains “discretion to refuse to issue a token depending

on circumstances[,]” and must refuse to issue a pool token for the following seven

reasons:

[1.] The City may not issue a token to a person suspected of having

an infectious or communicable disease.

[2.] The City may not issue a token to a person with head lice or

ringworm.

[3.] The City may not issue a token to a person with an obvious

infectious wound.

[4.] The City may not issue a token to a sex offender.

[5.] The City may not issue a token to a known violent or dangerous

person.

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 3

[6.] The City may not issue a token to persons known to have violated

pool rules in the past.

[7.] The City may not issue a token to a person who is obviously high

or intoxicated.

When a pool token is issued, the new member completes and signs a membership

card, which states:

I agree to follow the rules and policies and procedures of the Cincinnati

Recreation Commission. I understand that my membership may be

revoked without a refund if I do not follow the rules.

“[M]embership card[s] [are] kept at the pool where the new member purchased the

token” and “contain[] the identifying number of the token that was purchased.” The

tokens are not transferable and may not be used by more than one person.

The CRC’s rules, policies, and procedures in effect during the relevant time

period are contained in the CRC Aquatic Division Program Brochure 2007. The rules

provide that the CRC “has the responsibility to provide a clean, pleasant, and safe

environment for public swimming.” Because “[s]ituations may occur that require

immediate corrective action[,]” the CRC grants lifeguards “full authority to act in order

to ensure the safety of swimmers.” The Brochure also contains a list of “General

Facility Rules,” including the following: “Only adults supervising children are permitted

inside [the] pool area wearing street clothes, and should remain back near the fence, not

up by the pool.”

During 2007, Jeff Brokamp was the principal of Mt. Washington Elementary

School, which is located next to Mt. Washington pool. For two days in “April or May”

of 2007, Kennedy allegedly was “staring” at children at the elementary school during a

field day. The children and teachers felt “uncomfortable” with Kennedy “standing very

close” to them. Therefore, the teachers sent two students into the school building to

inform Brokamp of the situation and their discomfort. Brokamp followed the students

into the field, watched Kennedy for a “few seconds[,]” and then approached and

introduced himself. Brokamp spoke with Kennedy for a “few minutes” and asked him

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 4

to move away from where the children were playing. Kennedy subsequently left the

area.

Ann Couzins was the pool manager for Mt. Washington pool in 2007. According

to Couzins, Mark Celsor, the director of the Mt. Washington Recreation Center, had

asked her to “keep an eye on” Kennedy even before he joined the pool because of the

incident that occurred at Mt. Washington Elementary School. This request was also

made by pool supervisor and defendant David Hudepohl, who asked Couzins “to go

ahead and keep an eye on him” and to maintain a log of Kennedy’s actions. Couzins

testified that for “four or five days in a row” she saw Kennedy “just standing outside the

gate watching the pool and looking at the kids.” She described his behavior as “a little

bit strange.”

In June 2007, Kennedy purchased a pool token from the CRC for $10. During

June, Kennedy frequently used the pool token to visit the CRC operated pool in the

neighborhood of Mt. Washington. As instructed, Couzins kept a record of the pool

staff’s observations of Kennedy. Couzins did not personally see Kennedy interacting

with any of the children at the pool but noted the observations of the other lifeguards.

She testified that “all” of the lifeguards “observed [Kennedy] . . . at the pool watching

the kids[,]” and that they “all felt uncomfortable around him[.]” Couzins specifically

described how lifeguard Jenny Sallee saw Kennedy “trying to . . . throw a ball with [a

boy] or follow him into the woods[.]”1 “[M]ultiple parents at the pool” also approached

Couzins to communicate “that they felt uncomfortable with [Kennedy’s] presence” at

the pool.

On June 20, 2007, Kennedy watched a swim meet at the pool. Tamara

Kluckman-Gory, a teacher at the Hamilton County Justice Center, noticed Kennedy

observing the meet with a “fixed smile, fixed kind of a scary smile.” Kluckman-Gory

testified that mothers were concerned that Kennedy was staring at the children, and she

had heard that there was worry that “somebody at the pool . . . could be a pedophile[.]”

1

The boy and his mother lived in Kennedy’s apartment building.

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 5

She decided to “confront[]” Kennedy and walked over to speak with him. After

exchanging pleasantries, Kluckman-Gory informed Kennedy that he was “kind of

creeping some people out.” Thereafter, Kennedy “mumbled something” and left the

pool area.

On June 21, 2007, Kennedy arrived at the pool and sat on a bench approximately

six feet from it. Kennedy was wearing a shirt, shorts, and sandals; he wore a swimsuit

beneath his shorts. Hudepohl observed Kennedy reading a newspaper, but suspected he

was actually watching children in the pool.

Hudepohl called his supervisor, Jincey Yemaya, who instructed Hudepohl to

contact the police. Hudepohl called the police and asked that Kennedy be investigated

“because he was removed from the playground for lurking and staring at young kids

during recess and . . . was seen by guards following children back into the woods.”2

Cincinnati Police Officers Christine Smith and Jeffrey Zucker arrived in the Mt.

Washington School parking lot, where they were met by Hudepohl. Hudepohl informed

the officers that: (1) Kennedy was wearing street clothes in violation of CRC rules and

regulations;3 (2) he had been “lurking along the fence line” and not swimming in the

pool area; (3) parents had expressed concerns regarding Kennedy’s behavior; (4) the

principal from Mt. Washington Elementary School had banned Kennedy from “Olympic

day”; and (5) Kennedy had been seen at a swim meet, standing at the fence watching

children.

Thereafter, the officers approached Kennedy in the pool area, accompanied by

Hudepohl. Zucker questioned Kennedy for approximately fifteen minutes, during which

time Zucker informed him that the officers were there “as a precaution” because people

2

The police report indicates that the police received a statement that a 44-year-old, white male,

6'0, wearing a blue and white floral shirt and brown shorts had been seen “following the kids into the

woods, daily, [for] a wk & has been kicked out [several] times, [for] lurking[.]”

3

Kennedy argues that this fact “is irrelevant, for it is undisputed that Mr. Kennedy’s clothing is

not the reason why Mr. Kennedy’s pool pass was confiscated, and is not the reason he was ordered off of

CRC property permanently.” Moreover, Hudepohl testified that, while he has consistently approached

other individuals for violating this rule and has asked them not to return to the pool wearing street clothes,

he has never reported them to the police or banned them from the pool.

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 6

were concerned Kennedy was “child watching.” While Zucker spoke with Kennedy,

Smith queried her computer to check whether Kennedy had any outstanding warrants or

whether he was listed as a sexual predator in Hamilton County. From her search, Smith

determined that Kennedy was not listed as a sexual predator and had no current warrants.

Zucker asked a few more questions regarding why Kennedy was at the pool, and then

terminated his investigation because his “basis for any reasonable suspicion to stop Mr.

Kennedy had ceased, because [he] had no crime that [he] could verify had been

committed, nor could [he] identify one that [was] being committed or [was] going to be

committed.” The officers subsequently asked Hudepohl how he wanted to proceed.

Hudepohl informed the officers that Kennedy would be banned from Mt.

Washington pool for the rest of the season, and that he would like the officers to retrieve

the pool token from Kennedy. Thereafter, Zucker approached Kennedy and told him

that Hudepohl, acting as an agent of CRC, was requesting that Kennedy surrender his

pool pass. In addition, Zucker informed Kennedy that Hudepohl was barring him from

“CRC property in Mt. Washington, i.e., the ball fields and the pool area, as well as Mt.

Washington School.”4 In response, Kennedy surrendered his pool pass and apparently

left Mt. Washington pool without incident.

On February 14, 2008, Kennedy filed an amended complaint in the Southern

District of Ohio, alleging that defendants Zucker, Hudepohl, and the City of Cincinnati

violated his constitutional rights by confiscating his property, and by restricting his

liberty, without due process of law.5 In addition, Kennedy pleaded a state law claim of

defamation, contending that Hudepohl defamed him by falsely implying that he had

engaged in serious sexual misconduct. On October 16, 2008, defendants moved for

summary judgment, arguing that they were entitled to qualified immunity because

4

Kennedy asserts that he was banned from “all municipal land and facilities operated by the

Cincinnati Recreation Commission[,]” not just the CRC grounds located in Mt. Washington. He supports

this claim with his affidavit, the testimony of Officer Smith that Zucker typed a computer entry stating that

Kennedy was “banned from CRC property,” and a copy of the incident report stating Kennedy was

“banned from CRC properties[.]”

5

Kennedy filed his first complaint on July 2, 2007, but did not name Hudepohl as a defendant at

that time. In addition to adding Hudepohl as a defendant in his amended complaint, Kennedy also

dismissed his claims against Smith, who was named as a defendant in the original complaint.

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 7

Kennedy failed to show that his clearly established rights were violated. On January 12,

2009, the district court granted summary judgment for the City of Cincinnati but denied

summary judgment for Zucker and Hudepohl, finding that “access to the public pools

constitutes a cognizable property interest” and that genuine issues of material fact exist

as to what process Kennedy was afforded regarding the revocation of his pool pass.6

Defendants Zucker and Hudepohl filed this interlocutory appeal on January 21,

2009.

II.

We must first consider whether we have jurisdiction to address defendants’

interlocutory appeal. 28 U.S.C. § 1291 limits our jurisdiction to “final decisions of the

district courts of the United States . . . .” Id. “A district court’s denial of qualified

immunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to the extent

that it turns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 309

(6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). A defendant

raising a qualified immunity defense “may not appeal a district court’s summary

judgment order insofar as that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995);

see also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is

denied qualified immunity may file an interlocutory appeal with this Court only if that

appeal involves the abstract or pure legal issue of whether the facts alleged by the

plaintiff constitute a violation of clearly established law.”). Nevertheless, that the

district court here denied defendants’ motion for summary judgment on the ground that

genuine issues of material fact exist does not necessarily preclude our jurisdiction over

defendants’ appeal. Rather, we have recognized that, “regardless of the district court’s

reasons for denying qualified immunity, we may exercise jurisdiction over the . . .

appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685, 689-90

6

The City of Cincinnati was dismissed as a defendant by the district court pursuant to Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 8

(6th Cir. 1999) (en banc) (internal quotation marks and citation omitted); see also Turner

v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).

As we recognized in Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 403 (6th

Cir. 2007):

Language in our earlier decisions interpreting Johnson suggests that

where, as here, the appellant fails to concede the facts as alleged by the

appellee, this court is completely deprived of jurisdiction over the

appellant’s interlocutory appeal. See Berryman, 150 F.3d at 563 (“If . . .

the defendant disputes the plaintiff’s version of the story, the defendant

must nonetheless be willing to concede the most favorable view of the

facts to the plaintiff for purposes of the appeal.”). Subsequent cases,

however, have rejected that approach and clarified that we may consider

a pure question of law, despite the defendants’ failure to concede the

plaintiff’s version of the facts for purposes of the interlocutory appeal:

“If . . . aside from the impermissible arguments regarding disputes of

fact, the defendant also raises the purely legal question of whether the

facts alleged . . . support a claim of violation of clearly established law,

then there is an issue over which this court has jurisdiction.” Estate of

Carter, 408 F.3d at 310 (internal quotations and citation omitted); see

also Smith v. Cupp, 430 F.3d 766, 772 (6th Cir. 2005); but see McKenna

v. City of Royal Oak, et al., 469 F.3d 559, 561 (6th Cir. 2006) (holding

this court lacks jurisdiction to consider interlocutory appeal where

appellant relies solely on disputed facts).

We therefore conclude that we have jurisdiction to consider whether, accepting

as true the facts alleged by Kennedy, defendants are entitled to qualified immunity from

Kennedy’s claim of a due process violation. See Mehra, 186 F.3d at 689-90 (instructing

that this court has jurisdiction to consider whether facts, as alleged by plaintiff, entitle

defendant to summary judgment); Berryman, 150 F.3d at 562 (same).

III.

The Due Process Clause of the Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property, without due process of law[.]”

U.S. CONST. amend. XIV § 1. For Kennedy to prevail on his procedural due process

claim, he must show that he was deprived of a constitutionally-protected property or

liberty interest and that the deprivation occurred without due process. Zinermon v.

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 9

Burch, 494 U.S. 113, 125 (1990). “To have a property interest in a benefit, a person

clearly must have more than an abstract need or desire for it. He must, instead, have a

legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

Because he paid $10 to purchase the pool token, Kennedy claims he has “an enforceable

entitlement to the token,” which amounts to a property interest deserving of due process

protection. Although the parties dispute whether revocation of Kennedy’s pool pass was

meant to ban him only from Mt. Washington grounds or from all CRC properties, as

noted above, we must assume as true all facts alleged by plaintiff.

However, even assuming that Kennedy was banned from all CRC properties that

were generally open to the public, Kennedy cites no Ohio authority establishing a right

to enter CRC properties or a constitutionally-protected property interest in his pool pass.

See Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006) (explaining

that the question of whether a constitutionally-protected property interest exists is often

a question of state law). Kennedy’s reliance upon three cases in which the United States

Supreme Court or this court found a cognizable property interest is misplaced because

those cases involved significant interests related to an individual’s ability to engage in

an occupation or to provide sustenance to his family. See Barry v. Barchi, 443 U.S. 55,

64 (1978) (a horse trainer has a cognizable property interest in a horse trainer’s license

sufficient to invoke the protection of the Due Process Clause); Dixon v. Love, 431 U.S.

105, 112 (1977) (“Due Process Clause applies to the deprivation of a [truck] driver’s

license by the State[.]”); Banks v. Block, 700 F.2d 292, 297 (6th Cir. 1983) (food stamp

recipients have a cognizable interest in benefits during their unexpired certification

period). These heightened interests are clearly distinguishable from a $10 recreational

pool pass.

In this regard, the Supreme Court has recognized that, “[the] range of interests

protected by procedural due process is not infinite.” Ingraham v. Wright, 430 U.S. 651,

672 (1977) (internal quotation marks and citation omitted). A protected property interest

generally “must be more than [a] de minimis” interest. Omosegbon v. Wells, 335 F.3d

668, 674 (7th Cir. 2003). See, e.g., Laney v. Farley, 501 F.3d 577, 584 (6th Cir. 2007)

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 10

(finding “a one day in-school suspension to be a de minimis deprivation”); Gillard v.

Norris, 857 F.2d 1095, 1098 (6th Cir. 1988) (finding a police officer’s three-day

suspension from work to be a de minimis deprivation of property not deserving of due

process protection). Here, although Kennedy arguably had a property interest in his $10

pool pass of which the City deprived him, “the nature of [that] interest” is de minimis

when viewed against the background of reason, Supreme Court case law, and this court’s

past decisions. Roth, 408 U.S. at 571. Accordingly, we hold that Kennedy did not have

a property interest “sufficient to invoke the procedural protections of the Due Process

Clause.” Meachum v. Fano, 427 U.S. 215, 224 (1976).

IV.

Kennedy next claims his ban from CRC properties deprived him of his liberty

interest to enter certain public spaces, as guaranteed by the Due Process Clause of the

Fourteenth Amendment. In City of Chicago v. Morales, 527 U.S. 41 (1999), the United

States Supreme Court addressed Chicago’s “Gang Congregation Ordinance,” which

prohibited “criminal street gang members” from “loitering” in public places. Id. at 45-46

(internal quotation marks omitted). In addressing the overbreadth doctrine, Justice

Stevens, writing for the plurality, stated:

[T]he freedom to loiter for innocent purposes is part of the “liberty”

protected by the Due Process Clause of the Fourteenth Amendment. We

have expressly identified this “right to remove from one place to another

according to inclination” as “an attribute of personal liberty” protected

by the Constitution. Williams v. Fears, 179 U.S. 270, 274 (1900); see

also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972). Indeed, it

is apparent that an individual’s decision to remain in a public place of his

choice is as much a part of his liberty as the freedom of movement inside

frontiers that is “a part of our heritage[,]” Kent v. Dulles, 357 U.S. 116,

126 (1958), or the right to move “to whatsoever place one’s own

inclination may direct” identified in Blackstone’s Commentaries. 1 W.

Blackstone, Commentaries on the Laws of England 130 (1765).

Id. at 53-54 (footnotes omitted). See also Anthony v. Texas, 209 S.W.3d 296, 307-08

(Tx. Ct. App. 2006) (holding plaintiff “clearly had a liberty interest [to enter a public]

park.”).

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 11

Assuming that Kennedy’s version of the facts are true, defendants have barred

Kennedy from entering any property deemed a part of the City of Cincinnati’s

recreational system, which presumably encompasses more than its public pools, and

certainly encompasses more than Mt. Washington pool. “The City’s action is

reminiscent of a partial banishment, which serves to expel [Kennedy] from certain

portions of City property[.]” Doe v. City of Lafayette, 377 F.3d 757, 780 (7th Cir. 2004)

(en banc) (Williams, J., dissenting) (citing Smith v. Doe, 538 U.S. 84, 98 (2003))

(discussing banishment as a measure historically recognized as punishment). Thus, it

is clear that Kennedy had a liberty interest “to remain in a public place of his choice”

and that defendants interfered with this interest. Morales, 527 U.S. at 54.

V.

At oral argument, Kennedy’s counsel conceded that his client had not sufficiently

alleged a procedural due process claim against Hudepohl. In light of this concession,

we reverse the part of the district court’s order denying Hudepohl qualified immunity

on the alleged constitutional violation of Kennedy’s due process rights. Kennedy’s state

law claim of defamation against Hudepohl was not raised in this interlocutory appeal and

may proceed in the district court. Thus, below we limit our discussion to the part of the

district court’s order denying Zucker qualified immunity.

VI.

“We 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). “The doctrine protects all but the plainly incompetent

or those who knowingly violate the law.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.

2008) (internal quotation marks and citations omitted). When the defendant raises a

defense of qualified immunity, the plaintiff bears the burden of demonstrating that the

defendant is not entitled to such immunity. Silberstein v. City of Dayton, 440 F.3d 306,

311 (6th Cir. 2006).

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 12

“Through the use of qualified immunity, the law shields ‘government officials

performing discretionary functions . . . from civil damages liability as long as their

actions could reasonably have been thought consistent with the rights they are alleged

to have violated.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir.

2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). In determining

whether a defendant is entitled to qualified immunity, the court makes two inquiries:

(1) “[t]aken in the light most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional right[,]” and (2) was the right

clearly established to the extent that a reasonable person in the officer’s position would

know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201

(2001). Although Saucier mandated that these questions be addressed in order, that

requirement has since been relaxed. See Pearson v. Callahan, — U.S. — , 129 S. Ct.

808, 818 (2009) (“On reconsidering the procedure required in Saucier, we conclude that,

while the sequence set forth there is often appropriate, it should no longer be regarded

as mandatory.”).

Here, after Zucker questioned Kennedy for approximately fifteen minutes, he

determined that his “basis for any reasonable suspicion to stop Mr. Kennedy had ceased,

because [he] had no crime that [he] could verify had been committed, nor could [he]

identify one that [was] being committed or [was] going to be committed.” Zucker

informed Hudepohl of this fact, but Hudepohl still asked Zucker to confiscate Kennedy’s

pool pass and to order him off the premises. Zucker fully complied with this request,

and, arguably, ordered Kennedy to not enter any CRC property for an indefinite period

of time.

Zucker avers that he should be immune from suit because he was following the

orders of Hudepohl, an agent of the municipal pool. However, “since World War II, the

‘just following orders’ defense has not occupied a respected position in our

jurisprudence, and officers in such cases may be held liable under § 1983 if there is a

reason why any of them should question the validity of that order.” O’Rourke v. Hayes,

378 F.3d 1201, 1210 n.5 (11th Cir. 2004) (internal quotations marks and citation

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 13

omitted). Regardless of the authority Hudepohl possessed, Zucker was not “relieve[d]

. . . of his responsibility to decide for himself whether to violate clearly established

constitutional rights[.]” Id. at 1210. “[U]nder the Supremacy Clause, public officials

have an obligation to follow the Constitution even in the midst of a contrary directive

from a superior or in a policy.” N.N. ex rel. S.S. v. Madison Metro. Sch. Dist., — F.

Supp. 2d —, 2009 WL 4067779, at *6 (W.D. Wis. Nov. 24, 2009). See, e.g., Glasson

v. City of Louisville, 518 F.2d 899, 903-04 (6th Cir. 1975) (officer that was following

police chief’s order was not immune from suit). Thus, viewing the facts alleged in the

light most favorable to Kennedy, we conclude that Zucker violated Kennedy’s

constitutional rights by banning him from all City recreational property without due

process of law.

We must therefore determine whether Kennedy’s right to lawfully remain in

public spaces was clearly established. “[I]n the ordinary instance, to find a clearly

established constitutional right, a district court must find binding precedent by the

Supreme Court, its court of appeals or itself.” Ohio Civil Serv. Employees Ass’n v.

Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988). Yet, to be “clearly established” there need

not be a prior case deciding that “the very action in question has previously been held

unlawful[.]” Anderson, 483 U.S. at 640. In McCloud, we noted that if courts required

prior precedent on the specific facts at issue in the pending case, “qualified immunity

would be converted into a nearly absolute barrier to recovering damages against an

individual government actor. . . .” McCloud, 97 F.3d at 1557. “[G]eneral statements of

the law are not inherently incapable of giving fair and clear warning, and in other

instances a general constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question[.]” United States v. Lanier, 520

U.S. 259, 271 (1997).

It is apparent that Kennedy had a clearly established right to remain on public

property based on the Supreme Court’s holdings in Fears, 174 U.S. at 274,

Papachristou, 405 U.S. at 164, Kent, 357 U.S. at 126, and Morales, 527 U.S. at 53-54.

“[T]he preexisting law was sufficient to provide the defendant with ‘fair warning’ that

No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 14

his conduct was unlawful.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)

(quoting Lanier, 520 U.S. at 270-71). Any competent government official, particularly

a police officer, should have realized that he cannot deprive a person, who has not

committed a crime or violated some regulation, nor was likely to do so, of access to

public grounds without due process of law. Therefore, we hold that for purposes of

defendants’ motion for summary judgment, Kennedy possessed a constitutionally-

protected liberty interest to use municipal property open to the public and that depriving

him of his liberty interest, without procedural due process, constituted a violation of a

clearly established constitutional right.7

VII.

For these reasons, we affirm in part, and reverse in part, the judgment of the

district court, and remand for further proceedings consistent with this opinion.

7

As the district court noted, “entry of judgment regarding qualified immunity must await the

jury’s resolution of the disputed facts as to the process afforded.” Moreover, the scope and duration of

Kennedy’s ban from CRC grounds, as well as whether or not the facts support a revocation for good cause

under the pool’s rules, remain in dispute. Therefore, the trier of fact will need to resolve these genuine

issues of material fact before a final determination regarding qualified immunity can be made.