Michael Wood v. Chad Eubanks

RECOMMENDED FOR PUBLICATION

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

File Name: 22a0025p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

MICHAEL ANDREW WOOD,

│

Plaintiff-Appellant, │

│ No. 20-3599

v. >

│

│

CHAD EUBANKS, in his individual and official capacity │

as Sergeant of the Clark County Sheriff’s Department; │

MARIO TROUTMAN, JR., CHERISH STEIGER, MATTHEW │

YATES, JACOB SHAW, and JOSEPH JOHNSON, in their │

individual and official capacities as Deputies of the │

Clark County Sheriff’s Office, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Dayton.

No. 3:18-cv-00168—Thomas M. Rose, District Judge.

Argued: November 2, 2021

Decided and Filed: February 8, 2022

Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Sara Elizabeth Coulter, CASE WESTERN RESERVE UNIVERSITY, Cleveland,

Ohio, for Appellant. Andrew N. Yosowitz, TEETOR WESTFALL, LLC, Columbus, Ohio, for

Appellees. David J. Carey, AMERICAN CIVIL LIBERTIES UNION OF OHIO

FOUNDATION, Columbus, Ohio, for Amicus Curiae. ON BRIEF: Lynnette Dinkler,

DINKLER LAW OFFICE, LLC, Dayton, Ohio, for Appellant. Andrew N. Yosowitz, TEETOR

WESTFALL, LLC, Columbus, Ohio, for Appellees. David J. Carey, AMERICAN CIVIL

LIBERTIES UNION OF OHIO FOUNDATION, Columbus, Ohio, Elizabeth Bonham, Freda J.

Levenson, AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,

Ohio, for Amicus Curiae.

No. 20-3599 Wood v. Eubanks, et al. Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Michael Wood wore a shirt bearing the words

“Fuck the Police” to the county fair. According to Wood, the defendant police officers ordered

him to leave and escorted him from the fairgrounds because of his shirt. While leaving, Wood

made his displeasure known through numerous coarse insults levied at the police and the

fairground’s administrator. The defendants then arrested Wood for disorderly conduct. After the

charges were dismissed, Wood filed this § 1983 action against the officers, alleging false arrest

and retaliation. The district court granted summary judgment to the defendants. We reverse

because Wood’s speech was protected by the First Amendment.

I.

On July 29, 2016, Michael Wood went to the Clark County Fair wearing a shirt that said

“Fuck the Police.” Wood explained that he “wore the shirt because [he] ha[s] the constitutional

right to do so.” DE 55-2, Wood Dep., Page ID 465. While Wood had “no ill will or ill intent

against law enforcement in general,” he took issue with how some of the county’s officers had

treated him in the past. Id. Specifically, he said that Sergeant Chad Eubanks had previously

stopped him for a traffic infraction and said “something along the lines of, ‘I’ll mess you up.’”

Id. He also stated that he believed the Clark County Sheriff’s Office was “a cesspool” because

so many officers who “were not honorable servants” had been fired and “more exist[ed]” in the

department. Id. at 466. Wood also filed a Freedom of Information Act request regarding “a big

fiasco about an affair, interoffice affair” in the department. Id. at 470.

Wood said that he received a few comments about his shirt at the fair, including a woman

who made a profane gesture at him. Wood also claimed that a sheriff’s deputy yelled to him as

he passed, “Hey, Wood, I like your shirt.” Id. at 466. Wood “gave him a thumbs up” and said,

“Yeah, I thought you might.” Id.

A few hours after Wood arrived at the fair, the sheriff’s department received a call

complaining about Wood’s shirt. Deputies Jacob Shaw, Mario Troutman, and Matthew Yates

No. 20-3599 Wood v. Eubanks, et al. Page 3

approached Wood and asked him to identify himself, but Wood declined to do so. Yates

allegedly responded that the officers “know who you are.” Id. at 468. Wood attempted to record

the interaction but stopped when “Troutman started laughing and pointing and said, ‘Huh, your

light went out. You’re not recording anymore.’” Id. At that point, Wood walked away.

Several hours later, the officers were called to one of the buildings on the fairgrounds.

Shaw, Troutman, and Yates were joined by Eubanks and deputies Joseph Johnson and Cherish

Steiger. Dean Blair, the Executive Director of the Clark County Fairgrounds, allegedly

approached Wood first, saying, “Where’s this shirt? I want to see this shirt.” Id.

Troutman, Yates, and Johnson wore body cameras and filmed the subsequent events. As

Yates walked closer to Wood and Blair, two other officers entered the building from the opposite

side. Wood was no longer wearing the profane shirt, and Blair asked Wood whether he had

changed. Wood did not answer but asked Blair and the officers if he had committed a crime or

was being detained. Blair replied that he wanted Wood to leave, that Wood was “not welcome,”

and that Wood needed to get off the fairgrounds. Yates Cam #1, 00:40–45; Johnson Cam,

00:13–00:25. Wood agreed to leave if the three-dollar entrance fee was refunded. Blair gave

Wood five dollars and told him to “keep the change” and never come back. Yates Cam #1,

00:55–45. Wood replied, “I have change for you, sir,” but Blair refused to accept the money,

telling Wood that he “wouldn’t take [Wood’s] money” and didn’t “want [Wood] around.” Id. at

00:58–1:14.

Wood asked Blair whether he “realized what [Wood was] doing [wa]s a constitutionally

protected activity.” Id. at 1:13–1:21. Blair replied, “Not in my home.” Id. Wood responded,

“Not in your home? This isn’t your home. This is public property.” Id. Eventually, Blair asked

the officers, “What [do] I have to say to him?” and reiterated to Wood, “Get off my grounds.”

Id. at 1:24–30. Wood responded, “Very well. I’ll be talking to my attorney about this.” Id. at

1:27–31.

Troutman then allegedly pushed Wood’s shoulder, and Wood said, “You ain’t pushing

me nowhere. I’ll leave.” DE 55-2, Wood Dep., Page ID 469; Yates Cam #1, 1:35–42; Johnson

Cam, 1:17–22. Wood turned and began walking toward the open door, flanked by Blair and

No. 20-3599 Wood v. Eubanks, et al. Page 4

several officers. While walking, Wood turned to face the officers and repeatedly asked whether

they had taken an oath to uphold the Constitution. Blair continued to repeat that Wood was “not

welcome in [his] house.” Yates Cam #1, 2:00–2:05. At this point, Wood told the officers not to

put their hands on him and that Troutman had committed battery.

As the officers escorted Wood outside, one of them told Wood that he had “been given an

order to vacate the property. So you’re leaving.” Troutman Cam #1, 00:32–35. Wood asked

whether that was “a lawful order.” Yates Cam #1, 2:10–18; Troutman Cam #1, 00:30–35. Blair

and Wood exited the building and continued arguing, with Wood repeatedly stating that the

fairgrounds were public property and Blair insisting that Wood leave. When Blair told Wood

that he needed to leave because he had gotten his money back, Wood replied, “Five dollars ain’t

shit to me, bro . . . Who the fuck do you think you are?” Yates Cam #1, 2:40–56; Troutman Cam

#1, 1:10–1:15. One of the officers spoke into his radio that they were “escorting . . . [Wood] to

the front gate.” Johnson Cam 2:29–35.

While walking, Wood pointed behind him and said, “Look at these thugs with badges

behind me. How many is there?” Yates Cam #1, 2:57–3:00. Spinning around, Wood counted

“1, 2, 3, 4, 5, 6 motherfuckers. Six bitch ass fucking pigs.” Id. at 3:00. Wood appeared to stop,

prompting one officer to tell him to “keep walking.” Id. at 3:01–05. Wood complied but

continued speaking. “Fucking thugs with guns that don’t uphold the United States Constitution.

Fuck all you. You dirty rat bastards.” Id. at 3:05–14; Troutman Cam #1, 3:00–31. Wood then

turned to Steiger and said, “And you, you’re a fucking thief, I’ve heard about you.” Yates Cam

#1, 3:13–17; Johnson Cam, 2:53–56.

Wood stopped at a tent to pick up his belongings, and an officer said, “this way, sir, sir.”

Yates Cam #1, 3:26–30; Troutman Cam #1, 1:44–48. Wood replied, “Fucking thugs with badges

. . . thugs with badges.” Yates Cam #1, 3:32–38; Troutman Cam #1, 1:50–2:00. As the officers

directed him forward, Wood exclaimed that “the United States Constitution doesn’t apply at the

Clark County fairgrounds, people.” Yates Cam #1, 3:40–46; Troutman Cam #1, 2:00–05.

Wood and the officers disagreed about where Wood should exit. Wood stated that he

was “going out the back gate” because he had come in that way. Yates Cam #1, 3:49–59;

No. 20-3599 Wood v. Eubanks, et al. Page 5

Troutman Cam #1, 2:07–13. The officers insisted on the front gate, and one officer told Wood

that they were “not going to walk all the way to the back gate.” Yates Cam #1, 3:55–57.

Wood replied, “Then that’s your fucking fat-ass problems, motherfucker, I’m leaving.” Id. at

3:57–4:02; Johnson Cam, 3:35–40. Wood turned and walked toward the back gate, with Blair

and all six deputies following.

The officers began discussing whether they could arrest Wood for disorderly conduct and

disturbing the peace. One officer asked another “how long [they] [were] going to allow” Wood

to keep talking. Johnson Cam, 4:00–03. That officer replied that “we could do disorderly

conduct.” Id. at 4:02–06. Blair, catching up with Wood, turned and said to the officers that

Wood was “disturbing my peace” and shouted, “Charge him!” Yates Cam #1, 4:20–22;

Troutman Cam #1, 2:37–43. One officer asked the others what they should do, commenting that

Wood was “talking the whole way out the door, he’s still talking.” Yates Cam #1, 4:40–50;

Troutman Cam #1, 3:00–05. Another officer said, “Well, make an arrest,” to which another

asked, “Make an arrest?” Yates Cam #1, 4:49–52.

Blair and Wood walked in front of the officers, continuing to argue. Troutman Cam #1,

3:15–30. Although difficult to discern from the audio, Wood asked Blair, “Have you ever

fucking served this country?,” to which Blair replied, “Yes, asshole.” Id. at 3:13–24. Wood

retorted, “Bullshit. In what? The Air Force? Fucking flyboy.” Id. Wood then turned around

and said to Troutman, “Look at this bullshit. You’re one big man ain’t you, motherfucker. You

got eight pussies with badges behind you.” Id. at 3:40–47. Blair commented, “You got a lot of

mouth.” Id. at 3:49–50. Wood replied that Troutman “wants to fucking batter [him],” and Wood

planned to press charges. Id. at 3:50–53. Blair turned to Troutman and said, “I’m your witness.

That’s bullshit.” Id. at 3:53–58. Wood continued to insist that Troutman had “touched [him]”

and asked whether they knew “what the legal definition of battery is.” Id. at 3:57–4:00. Blair

repeated, “You got a lot of mouth, boy.” Id. at 4:00–03. Wood retorted, shouting “Do you know

what the legal definition of battery is, motherfucker? Then try to find out.” Id. at 4:03–08.

At that point, the officers arrested Wood for disorderly conduct. On the way to the jail,

an officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but you

want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. He was charged with

No. 20-3599 Wood v. Eubanks, et al. Page 6

disorderly conduct, Ohio Rev. Code Ann. § 2917.11(A)(2), and obstructing official business,

§ 2921.31. The prosecutor later dismissed both charges, apparently because the “State [was]

unable to locate necessary lay witnesses to [the] incident in time for trial” to show that Wood’s

“words and conduct amounted to ‘fighting words’” under the First Amendment. DE 6-6, Pretrial

Rev. Form, Page ID 84; DE 35, Prosecutor Email, Page ID 262.

Wood filed this 42 U.S.C. § 1983 action against all six officers involved in his arrest

(Eubanks, Shaw, Troutman, Yates, Johnson, and Steiger), alleging numerous constitutional

violations. The defendants moved for summary judgment, and the magistrate judge

recommended granting the motion as to all but two of Wood’s claims—unlawful arrest and First

Amendment retaliation. Wood v. Eubanks, R. & R., No. 3:18-CV-168, 2020 WL 635652, at *16

(S.D. Ohio Feb. 11, 2020). The district court disagreed in part, concluding that the officers were

protected by qualified immunity on the false arrest claim and that there was insufficient evidence

of retaliation, so the court granted summary judgment to the defendants on all claims. Wood v.

Eubanks, 459 F. Supp. 3d 965, 980 (S.D. Ohio 2020). Wood timely appealed the dismissal of his

false arrest and retaliation claims.

II.

We review a grant of summary judgment de novo. Randolph v. Ohio Dep’t of Youth

Servs., 453 F.3d 724, 731 (6th Cir. 2006). Summary judgment is proper if “there is no genuine

dispute as to any material fact” and “the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). We view the evidence and draw all reasonable inferences in favor of the non-

moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III.

Wood’s first claim is for false arrest. “To prevail on a false arrest claim under § 1983, ‘a

plaintiff must prove that the arresting officer lacked probable cause to arrest the plaintiff.’”

Tlapanco v. Elges, 969 F.3d 638, 652 (6th Cir. 2020) (brackets and internal quotation marks

omitted). Therefore, “[a] showing of ‘probable cause provides a complete defense to a claim of

false arrest.’” Id. (internal quotation marks omitted). An officer is entitled to qualified immunity

if he reasonably believed that the arrest was lawful, even if that belief was erroneous. Barton v.

No. 20-3599 Wood v. Eubanks, et al. Page 7

Martin, 949 F.3d 938, 950 (6th Cir. 2020). “[S]tate law defines the offense for which an officer

may arrest a person, while federal law dictates whether probable cause existed for an arrest.”

Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir. 2011). Because there was no probable

cause to arrest Wood for his conduct, and because Wood’s right to be free from arrest was

clearly established, the officers are not entitled to qualified immunity.

A.

Wood was arrested for disorderly conduct, Ohio Rev. Code Ann. § 2917.11(A)(2), and

obstructing official business, § 2921.31. The only issue is whether the officers had probable

cause to arrest Wood for disorderly conduct.1 Ohio’s statute “requires two elements to commit

disorderly conduct.” Osberry v. Slusher, 750 F. App’x 385, 394 (6th Cir. 2018) (internal

citations omitted). “First, a person must ‘recklessly cause inconvenience, annoyance, or alarm to

another,’” and “[s]econd, the person must cause this disturbance by engaging in specific

enumerated conduct.” Id. Here, the alleged specific enumerated conduct is “[m]aking

unreasonable noise or an offensively coarse utterance, gesture, or display or

communicating unwarranted and grossly abusive language to any person.” Ohio Rev. Code Ann.

§ 2917.11(A)(2).

Ohio’s statute “requires two elements to commit disorderly conduct.” Osberry v.

Slusher, 750 F. App’x 385, 394 (6th Cir. 2018) (internal citations omitted). “First, a person must

‘recklessly cause inconvenience, annoyance, or alarm to another,’” and “[s]econd, the person

must cause this disturbance by engaging in specific enumerated conduct.” Id. Here, the alleged

specific enumerated conduct is “[m]aking unreasonable noise or an offensively coarse utterance,

gesture, or display or communicating unwarranted and grossly abusive language to any person.”

Ohio Rev. Code Ann. § 2917.11(A)(2).

The Ohio Supreme Court has clearly established that a person may not be punished for

disorderly conduct “unless the words spoken are likely, by their very utterance, to inflict injury

1Defendants did not raise the obstruction charge as a basis for summary judgment. And, although they

argued probable cause existed to arrest Wood for disorderly conduct and littering, § 3767.32(A), because Wood

“threw his refunded money on the ground,” DE 31, Mot. for Summ. J., Page ID 205, 208, the district court did not

address the littering argument and the defendants do not press it on appeal.

No. 20-3599 Wood v. Eubanks, et al. Page 8

or provoke the average person to an immediate retaliatory breach of the peace.” State v.

Hoffman, 387 N.E.2d 239, 242 (Ohio 1979). In other words, the statute “require[s] that the

speech in question constitute ‘fighting words.’” D.D. v. Scheeler, 645 F. App’x 418, 425 (6th

Cir. 2016) (citing City of Cincinnati v. Karlan, 314 N.E.2d 162, 164 (Ohio 1974)). Fighting

words—as defined by the Supreme Court in Chaplinsky v. New Hampshire—are words that “by

their very utterance inflict injury or tend to incite an immediate breach of the peace.” 315 U.S.

568, 572 (1942). So Wood “could only act with the required mental state for this crime—

recklessness—if ‘with heedless indifference to the consequences,’ []he engaged in conduct or

speech likely ‘to inflict injury or provoke the average person to an immediate retaliatory breach

of the peace.’” Osberry, 750 F. App’x at 394 (quoting Goodwin, 781 F.3d at 333). “The

question is whether, under the circumstances, it is probable that a reasonable police officer would

find [the] language and conduct annoying or alarming and would be provoked to want to respond

violently.” Goodwin v. City of Painesville, 781 F.3d 314, 333 (6th Cir. 2015) (quoting Warren v.

Patrone, 600 N.E.2d 344, 345 (Ohio Ct. App. 1991)).

We have explained that, since the Chaplinsky decision, its “‘fighting words’ doctrine has

become ‘very limited.’” Greene v. Barber, 310 F.3d 889, 896 (6th Cir. 2002) (quoting Sandul v.

Larion, 119 F.3d 1250, 1255 (6th Cir. 1997)). While calling a city marshal “a God damned

racketeer” and “a damned Fascist” constituted fighting words in Chaplinsky, “[s]tandards of

decorum have changed dramatically since 1942, . . . and indelicacy no longer places speech

beyond the protection of the First Amendment.” Id. at 895–96 (citation omitted). “The fighting

words exception is very limited because it is inconsistent with the general principle of free

speech recognized in our First Amendment jurisprudence.” Baskin v. Smith, 50 F. App’x 731,

736 (6th Cir. 2002). Therefore, “profanity alone is insufficient to establish criminal behavior.”

Wilson v. Martin, 549 F. App’x 309, 311 (6th Cir. 2013); see also D.D., 645 F. App’x at 425

(“Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or

even shouting, of distasteful words.”); United States v. Gustafson, 30 F.3d 134 (Table), 1994 WL

276883, at *3 (6th Cir. 1994) (“The [Ohio] cases are clear that use of profanity alone or

generalized derogatory statements are insufficient to support a conviction for disorderly

conduct.”).

No. 20-3599 Wood v. Eubanks, et al. Page 9

Further, both the Supreme Court and this court have made clear that “police officers

. . . ‘are expected to exercise greater restraint in their response than the average citizen.’” Barnes

v. Wright, 449 F.3d 709, 718 (6th Cir. 2006) (quoting Greene, 310 F.3d at 896). “Police officers

are held to a higher standard than average citizens, because the First Amendment requires that

they ‘tolerate coarse criticism.’” D.D., 645 F. App’x at 425 (quoting Kennedy, 635 F.3d at 216);

see also City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The freedom of individuals

verbally to oppose or to challenge police action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free nation from a police state.”).

Against that backdrop, the defendants argue that they had probable cause to arrest Wood

for disorderly conduct because “[h]is language consisted of personally abusive epithets” that

“constitute fighting words.” CA6 R. 26, Appellees’ Br., at 26. Wood referred to all six officers

as, variously, “thugs with badges,” “fucking thugs with guns,” and “fucking thugs with badges.”

Yates Cam #1, 2:57–3:10, 3:32–38; Troutman Cam #1, 3:00–31. Wood deployed

“motherfuckers” more than once. Yates Cam #1, 3:00, 3:57–4:02; Johnson Cam, 3:35–40;

Troutman Cam #1, 3:40–47, 4:03–08. Other insults included “six bitch ass fucking pigs,” “fuck

all you,” “dirty rat bastards,” and “eight pussies with badges.” Yates Cam #1, 3:00, 3:05–14,

3:57–4:02; Troutman Cam #1, 3:00–31, 3:40–47; Johnson Cam, 3:35–40. In addition to his

general commentary about the officers, Wood spoke to four people specifically. To Blair, Wood

said, “Who the fuck do you think you are,” called Blair a “fucking flyboy,” and asked whether

Blair knew what “the legal definition of battery is motherfucker.” Troutman Cam #1, 1:10–1:15;

3:13–24; 4:03–08. Wood at one point called Steiger, “a fucking thief.” Yates Cam #1, 3:13–17;

Johnson Cam 2:53–56. Wood also said to one of the officers, “Then that’s your fucking fat-ass

problems, motherfucker.” Yates Cam #1, at 3:57–4:02. And shortly before Wood was arrested,

he turned to Troutman and said, “You’re one big man ain’t you, motherfucker.” Troutman Cam

#1, 3:40–47.

We have routinely protected the use of profanity when unaccompanied by other conduct

that could be construed as disorderly. See Sandul, 119 F.3d at 1255 (“[T]he use of the ‘f-word’

in and of itself is not criminal conduct.”). In Greene v. Barber, we explained that whether the

plaintiff had “a constitutionally protected right” to call police officer Lt. Barber “an ‘asshole’ and

No. 20-3599 Wood v. Eubanks, et al. Page 10

castigate him as ‘stupid’ . . . depend[ed] on the time, place, and manner in which Mr. Greene [the

plaintiff] so expressed himself.” 310 F.3d at 895. While “[i]t [wa]s clear that the Constitution

gave Mr. Greene no license to interrupt the transaction of public business by loud

animadversions on Lt. Barber’s personality and mental capacity,” we held that “standing alone,

the fact that Mr. Greene’s remarks were unflattering to Lt. Barber clearly gave Barber no license

to abridge Greene’s freedom to speak as he did.” Id. We held that “Mr. Greene’s

characterization of Lt. Barber as an ‘asshole’ was not egregious enough to trigger application of

the ‘fighting words’ doctrine” because “it is hard to imagine Mr. Greene’s words inciting a

breach of the peace by a police officer whose sworn duty it was to uphold the law.” Id. at 896.

Likewise, we held in D.D. v. Scheeler that saying “fuck the police” and referring to officers as

“useless” and “idiots” “did not rise to the level of ‘fighting words’” in part because the epithets

were “no worse than the speech protected” in a previous case, were not “beyond ‘coarse

criticism,’” and were not “designed to provoke” the officer. 645 F. App’x at 420, 425–27.

We have held that similar speech is protected by the First Amendment when unaccompanied by

other conduct,2 which is consistent with the rule that “[f]its of rudeness or lack of gratitude may

violate the Golden Rule” but are not “illegal,” “punishable[,] or for that matter grounds for a

seizure.” Cruise-Gulyas v. Minard, 918 F.3d 494, 495 (6th Cir. 2019) (extending middle finger

to police officer provided no legal basis to stop plaintiff).

We have been equally clear that behavior involving more than mere epithets provides

probable cause for a disorderly conduct arrest. In Harris v. United States, a man approached a

Drug Enforcement Agency agent in an airport and said, “I don’t appreciate you and your

2See Cruise-Gulyas, 918 F.3d at 496; Hagedorn v. Cattani, 715 F. App’x 499, 506 (6th Cir. 2017) (calling

officer “asshole” and “idiot” were not fighting words); Wilson, 549 F. App’x at 311 (officers “patently without

probable cause to arrest” an “11 year-old girl [who] raised her middle fingers toward an adult male police officer”

because “[t]hose circumstances did not create a situation where violence was a likely result”); Kennedy, 635 F.3d at

211, 218 n.5 (calling officer a “son of a bitch” and a “fat slob” “seems to be the type [of speech] that the First

Amendment protects” because “[e]ven crass language used to insult police officers does not fall within the ‘very

limited’ unprotected category of ‘fighting words’” (quoting Greene, 310 F.3d at 892–93, 896)); Zulock v. Shures,

441 F. App’x 294, 305–07 (6th Cir. 2010) (no probable cause to arrest man for disorderly conduct under Ohio law

where man said “‘fuck you’ four or five times” to police officer while holding knife); Leonard v. Robinson,

477 F.3d 347, 351, 359 (6th Cir. 2007) (telling elected officials “that’s why you’re in a God damn lawsuit” “was not,

as a matter of law ‘likely to cause a fight’” (citation omitted)); Barnes, 449 F.3d at 718 (“using [foul] language,

cussin’, ranting and raving about [a] prior [dispute]” to police officer does not constitute fighting words because

even such strong language “is accorded the full protection of the First Amendment”); Sandul, 119 F.3d at 1252,

1256 (shouting “fuck you” and extending middle finger to abortion protesters was protected by First Amendment).

No. 20-3599 Wood v. Eubanks, et al. Page 11

monkeys following me and if you keep it up I’ll rip your head off.” 422 F.3d 322, 325 (6th Cir.

2005). Another officer who overheard the comment approached the man and he pushed her.

Speech aside, “by threatening the officers with physical violence and by making threatening

gestures,” the man “provided [the officers] with the necessary probable cause to charge him with

disorderly conduct.” Id. at 330; see also Gustafson, 30 F.3d 134, at *3 (sufficient evidence to

support judgment that defendant was guilty of disorderly conduct where he “waved his finger

approximately one inch from the faces of [the officers] after being warned to stop”); Hagedorn v.

Cattani, 715 F. App’x 499, 506 (6th Cir. 2017) (probable cause to arrest a woman because her

tirade was “inappropriately loud” and disturbed neighbors, but not because she employed

profanities). Similarly, we have repeatedly held that the state can punish an “individual whose

act of speaking, by virtue of its time and manner, plainly obstructed ongoing police activity

involving a third party.” King v. Ambs, 519 F.3d 607, 614 (6th Cir. 2008); see also Schliewe v.

Toro, 138 F. App’x 715, 721–23 (6th Cir. 2005) (“[I]n this case it is abundantly clear that Mr.

Schliewe was arrested for bleeding on those around him and threatening Officer Toro, regardless

of the fact that he used profanity.”).

While Wood’s speech was profane, the circumstances did not create a situation where

violence was likely to result. None of the officers reacted with violence or appeared to view

Wood’s words as “an invitation to exchange fisticuffs.” Texas v. Johnson, 491 U.S. 397, 409

(1989); see also Cohen v. California, 403 U.S. 15, 20 (1971) (speech not fighting words where

there was “no showing that anyone who saw Cohen was in fact violently aroused or that

appellant intended such a result”); Bible Believers v. Wayne Cnty., 805 F.3d 228, 246 (6th Cir.

2015) (en banc) (concluding that derogatory speech about Islam did not qualify as fighting

words, in part, because “the average individual attending the Festival did not react with violence,

and of the group made up of mostly adolescents, only a certain percentage engaged in bottle

throwing when they heard the proselytizing”). “And if violence had resulted, the officers would

be facing more claims than they are now.” Wilson, 549 F. App’x at 311.

We therefore conclude that the First Amendment protected Wood’s speech and thus his

disorderly conduct arrest lacked probable cause. This conclusion is consistent with those of

other circuits to have considered similar issues. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir.

No. 20-3599 Wood v. Eubanks, et al. Page 12

2003) (“[T]he First Amendment protects even profanity-laden speech directed at police officers.

Police officers reasonably may be expected to exercise a higher degree of restraint than the

average citizen and should be less likely to be provoked into misbehavior by such speech.”

(citing City of Houston, 482 U.S. at 461)); United States v. Poocha, 259 F.3d 1077, 1082 (9th

Cir. 2001) (holding that yelling “fuck you” at an officer was not likely to provoke a violent

response and “[c]riticism of the police, profane or otherwise, is not a crime”); Buffkins v. City of

Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (plaintiff’s “use of the word ‘asshole’ could not

reasonably have prompted a violent response from the arresting officers”).

Relying on Ohio state court decisions applying Chaplinsky, defendants contend (and the

district court agreed) that swearing at a police officer, alone, constitutes disorderly conduct. See,

e.g., State v. Wood, 679 N.E.2d 735, 740 (Ohio 1996) (telling a police officer “‘fuck you,’ either

verbally or via an extended digit,” could “constitute fighting words”). Although Ohio’s state law

appears discordant with our own, see, e.g., Sandul, 119 F.3d at 1255–56; Wilson, 549 F. App’x at

310; Cruise-Gulyas v. Minard, 918 F.3d 494, 496 (6th Cir. 2019), cert. denied, 140 S. Ct. 116

(2019), our caselaw requires that—for the purposes of examining a claim of qualified immunity

from a § 1983 cause of action—we turn only to federal court precedent for evaluating whether

police officers have probable cause to effectuate an arrest, see Kennedy, 635 F.3d at 215 (“[S]tate

law defines the offense for which an officer may arrest a person, while federal law dictates

whether probable cause existed for an arrest.”); Sandul, 119 F.3d at 1256 (holding that

“protected speech cannot serve as the [sole] basis for a violation” of any statute).

The defendants also argue that “Wood committed disorderly conduct while continually

yelling and cursing at Dean Blair, a civilian.” CA6 R. 26, Appellees’ Br., at 37. The defendants

cite a portion of the exchange where Wood appeared to question Blair’s military service, but the

defendants do not argue that questioning a person’s military credentials amounts to fighting

words.3 Rather, they focus on Wood’s use of curse words, his proximity to Blair, and his

“hostile and agitated” demeanor. Id. at 38.

3Nor could they raise this argument now because they did not press it in the district court.

No. 20-3599 Wood v. Eubanks, et al. Page 13

As an initial matter, although the defendants refer to Blair as a civilian, they do not

challenge the district court’s determination that “Blair is a quasi-state official, acting as the

Executive Director of the Clark County Fairgrounds.” Wood, 459 F. Supp. 3d at 977 n.3. As for

the profanity, Wood called Blair a “fucking flyboy” and, like the officers, a “motherfucker.”

Troutman Cam #1, 3:13–24; 4:03–08. These words alone do not provide probable cause to arrest

Wood for disorderly conduct. As for Wood’s proximity to Blair, it was Blair who followed

Wood, matching his pace as Wood headed toward the fairgrounds exit. And when Wood asked

Blair whether he knew “what the legal definition of battery is, motherfucker,” Blair was walking

ahead of Wood, with Troutman between them, and they were discussing whether Troutman had

touched Wood. Troutman Cam #1, 4:03–08. Wood did not step closer to Blair or make any

gesture that could be construed as threatening. Neither proximity nor Wood’s demeanor

provided probable cause for arrest.

Regarding the claim that the officers had probable cause to arrest Wood for “yelling” and

“screaming” at Blair, the defendants provide no further argument or any case citations as to how

that constituted disorderly conduct. Forfeiture aside, see United States v. Johnson, 440 F.3d 832,

846 (6th Cir. 2006), the claim is meritless. Even assuming, as the defendants argue, that the

“level of noise [Wood] was making could itself violate Section (A)(2),” under the statute’s clear

language, “a disorderly conduct charge against h[im] can stand only if []he ‘recklessly caused

inconvenience, annoyance, or alarm’ by ‘unreasonably’ making the noise.” Goodwin, 781 F.3d

at 333–34 (quoting Ohio Rev. Code Ann. § 2917.11(A)(2)).

From Wood’s telling, Blair ordered him removed from the fairgrounds based on his

“Fuck the Police” shirt. Blair followed Wood to the exit and continued to argue with him. Blair

then offered to serve as Troutman’s “witness” if Wood pursued battery charges against

Troutman. While Wood may have spoken at an elevated volume, nothing in this record indicates

that anyone complained. Cf. Hagedorn, 715 F. App’x at 506 (finding sufficient basis for arrest

where officer “provided evidence” of neighbor’s complaint “which would allow a reasonable

person to believe that [the plaintiff] was guilty of making unreasonable noise . . . despite the

protected nature of her speech”). Given these facts, Wood’s conduct was not “sufficiently

No. 20-3599 Wood v. Eubanks, et al. Page 14

reckless and unreasonable to allow an officer to reasonably believe there was probable cause to

arrest h[im].” Goodwin, 781 F.3d at 334.

The case presenting the most similar facts to this one is Henry v. City of Flint, 814 F.

App’x 973 (6th Cir. 2020). There, a man and officer engaged in a heated argument stemming

from the officer’s investigation of a neighboring abandoned house. The man called the officer a

number of profane names, including “asshole,” “smart butt,” “dumbass,” “motherfucker,” “punk

motherfucker,” and “bitch,” in addition to telling the officer to “get the fuck on,” “fuck you,” and

to “do your damn job.” Id. at 975–77. The case involved a factual dispute as to whether the

neighbor turned on a light during the kerfuffle because “[a]bsent the light being turned on as a

possible sign of disturbance to others, there was no ground for believing there was a basis for

arresting [the plaintiff]—other than his profanity and verbal abuse of the officers, which we have

clearly held is not, standing alone, a basis for an arrest.” Id. at 981 (citing Greene, 310 F.3d at

896–97; Kennedy, 635 F.3d at 215–16). We denied summary judgment to the officer because

absent the light, “a reasonable jury could find that no reasonable officer could have thought there

was such a disturbance, rather than simply a belligerent, profane, and uncooperative person.” Id.

at 982. In the absence of any evidence that Wood was unreasonably loud, there was no probable

cause to arrest Wood for his profanities alone.

Finally, the defendants argue that there was probable cause to arrest Wood for disorderly

conduct because Wood “defied the Deputies’ orders” when he insisted on exiting through the

back gate rather than the front. CA6 R. 26, Appellees’ Br., at 26. But they provide no further

argument or any case citations on this point, rendering it forfeited. See Johnson, 440 F.3d at 846.

And, regardless, refusing to follow police instructions constitutes obstructing official business,

Ohio Rev. Code Ann. § 2921.3, which the defendants did not pursue either in the district court or

on appeal.

For these reasons, the officers lacked probable cause when they arrested Wood.

No. 20-3599 Wood v. Eubanks, et al. Page 15

B.

The officers are not entitled to qualified immunity if the constitutional right they violated

“was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Wood’s right to be

free from arrest under these circumstances was clearly established at the time.

In Henry v. City of Flint, we denied qualified immunity because “there was no ground for

believing there was a basis for arresting [the plaintiff]—other than his profanity and verbal abuse

of the officers, which we have clearly held is not, standing alone, a basis for an arrest.” 814 F.

App’x at 981. Henry was decided in 2020, so the defendants contend it cannot clearly establish

Wood’s right to be free from arrest in 2016. But Henry did not represent a change in the law.

Henry relied on our decisions in Greene v. Barber and Kennedy v. City of Villa Hills, which we

decided in 2002 and 2011, respectively. Id. at 982. In Greene, we held that the plaintiff’s “right

not to be arrested for insulting a police officer [was] ‘clearly established.’” 310 F.3d at 897.

The same goes for Kennedy. Although the plaintiff in that case “used coarse language,” he “did

not pose [a] risk of public alarm” because there were “no third parties . . . whom an arrest would

protect” or whom the plaintiff disturbed. 635 F.3d at 217. We said then that “the First

Amendment requires . . . police officers [to] tolerate coarse criticism,” and “[e]ven crass

language used to insult police officers does not fall within the ‘very limited’ unprotected

category of ‘fighting words.’” Id. at 214, 216, 218 n.5.

Beyond Greene and Kennedy, we had already made clear by 2016 that profanity alone is

insufficient to constitute fighting words under Ohio’s disorderly conduct statute. See D.D., 645

F. App’x at 425, 427 (denying qualified immunity to officer on false arrest claim because

“Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or

even shouting, of distasteful words,” and “no competent officer would have found probable

cause to arrest [the plaintiff]”); Leonard, 477 F.3d at 359 (“The Supreme Court has held that a

state may not make a ‘single four-letter expletive a criminal offense.’” (quoting Cohen, 403 U.S.

at 26)); McCurdy v. Montgomery Cnty., 240 F.3d 512, 515, 520 (6th Cir. 2001) (finding that

plaintiff’s “right to challenge verbally” officer’s conduct, including stating “what the fu*k do

you want” and “what the fu*k is your job,” was “well-established”); Sandul, 119 F.3d at 1256

No. 20-3599 Wood v. Eubanks, et al. Page 16

(denying qualified immunity because there should be “little doubt in the mind of a reasonable

officer that the mere words and gesture ‘f—k you’ are constitutionally protected speech”); City

of Houston, 482 U.S. at 462–63 & n.12 (“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,” a “conclusion [that] finds a familiar echo

in the common law.”). Given this backdrop, it was clearly established in 2016 that there was no

probable cause to arrest Wood for disorderly conduct.

IV.

Wood also asserts a First Amendment retaliation claim. To prevail, Wood must

demonstrate three elements: (1) “that he engaged in constitutionally protected speech,” (2) “that

he suffered an adverse action likely to chill a person of ordinary firmness from continuing to

engage in protected speech,” and (3) “that the protected speech was a substantial or motivating

factor in the decision to take the adverse action.” Westmoreland v. Sutherland, 662 F.3d 714,

718 (6th Cir. 2011).4 The district court granted summary judgment to the defendants after

concluding that Wood had not suffered an adverse action and “there [wa]s no evidence of

retaliatory animus from Defendants based on Plaintiff’s t-shirt.” Wood, 459 F. Supp. 3d at 978.

As to the first element, the defendants do not contest that Wood’s shirt was

constitutionally protected speech, nor could they. Wood’s “Fuck the Police” shirt was clearly

protected speech. “It is well-established that ‘absent a more particularized and compelling

reason for its actions, a State may not, consistently with the First and Fourteenth Amendments,

make the simple public display of a four-letter expletive a criminal offense.’” Sandul, 119 F.3d

at 1254–55 (alterations omitted) (quoting Cohen, 403 U.S. at 26).

On the second element, Wood demonstrated that he suffered an adverse action because

the police officers escorted him out of the fairgrounds. Although we have held that a Fourth

Amendment seizure amounts to an adverse action, Cruise-Gulyas, 918 F.3d at 497, Wood does

4The Supreme Court recently announced an additional requirement, holding that “a plaintiff must plead and

prove the absence of probable cause for the arrest” to sustain a First Amendment retaliation claim. Nieves v.

Bartlett, 139 S. Ct. 1715, 1724–25 (2019). As we have concluded, Wood satisfied this requirement because

probable cause did not exist for Wood’s arrest.

No. 20-3599 Wood v. Eubanks, et al. Page 17

not challenge the magistrate’s determination—which the district court adopted—that he was not

seized until the moment of arrest. See R. & R., 2020 WL 635652, at *8; Wood, 459 F. Supp. 3d

at 980. To determine whether removing Wood from the fairgrounds was an adverse action, we

consider whether the action “would ‘deter a person of ordinary firmness’ from the exercise of the

right at stake.” Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc) (citation

omitted); see also Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (applying same standard

outside of prison context).

We have “emphasize[d] that while certain threats or deprivations are so de minimis that

they do not rise to the level of being constitutional violations, this threshold is intended to weed

out only inconsequential actions, and is not a means whereby solely egregious retaliatory acts are

allowed to proceed past summary judgment.” Thaddeus-X, 175 F.3d at 398. While “[m]ere

threats . . . are generally not sufficient to satisfy the adverse action requirement,” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004), acts that are more than a “petty slight[] or

minor annoyance[]” suffice, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

See Benison v. Ross, 765 F.3d 649, 660 (6th Cir. 2014) (withholding an educational transcript);

Paeth v. Worth Twp., 483 F. App’x 956, 963 (6th Cir. 2012) (issuing a stop work order);

Campbell v. Mack, 777 F. App’x 122, 135 (6th Cir. 2019) (over-tightening a detainee’s

handcuffs); see also Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 n.8 (1990) (noting

that the First Amendment “already protects state employees . . . from even an act of retaliation

as trivial as failing to hold a birthday party for a public employee . . . when intended to punish

her for exercising her free speech rights” (internal quotation marks and citation omitted)). Here,

police officers removed Wood from a public event under armed escort. That act was neither

“‘inconsequential’ as a matter of law,” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 585 (6th

Cir. 2012), nor just a “petty slight[] or minor annoyance[],” Burlington N. & Santa Fe Ry. Co.,

548 U.S. at 68. Wood satisfies the adverse action element.

Finally, the facts are in dispute as to whether Wood’s shirt “was a substantial or

motivating factor in the decision to take the adverse action.” Westmoreland, 662 F.3d at 718.

While the defendants argue that they removed Wood from the fairgrounds because he was

filming people, Wood alleges that Blair walked up to him flanked by the defendants and yelled

No. 20-3599 Wood v. Eubanks, et al. Page 18

“Where’s this shirt? I want to see this shirt.” DE 55-2, Wood Dep., Page ID 468. As the

officers surrounded Wood and escorted him from the building, one of them said to Wood,

“You’ve been given an order to vacate the property. So you’re leaving.” Troutman Cam #1,

00:32–35. While walking Wood through the fairgrounds, with Wood repeatedly questioning

whether the defendants had taken an oath to uphold the Constitution, one of the officers said they

were “escorting . . . [Wood] to the front gate.” Johnson Cam 2:29–35. And while en route to

jail, one officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but

you want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. A reasonable jury,

considering these facts, could conclude the officers were motivated to surround Wood and

require him to leave in part because he wore a shirt that said “Fuck the Police.” We reverse the

grant of summary judgment to the defendants on this claim.

V.

Wood used strong language to criticize the defendants. But “[o]ne of the prerogatives of

American citizenship is the right to criticize public men and measures—and that means not only

informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Cohen, 403 U.S. at 26 (quoting Baumgartner v. United States, 322 U.S. 665, 673–74 (1944)).

“[T]he First Amendment recognizes, wisely we think, that a certain amount of expressive

disorder not only is inevitable in a society committed to individual freedom, but must itself be

protected if that freedom would survive.” City of Houston, 482 U.S. at 472. Wood’s speech,

while coarse, was constitutionally protected. We reverse the grant of summary judgment and

remand the case for further proceedings consistent with this opinion.