Anthony Novak v. City of Parma, Ohio

RECOMMENDED FOR PUBLICATION

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

File Name: 22a0090p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ANTHONY NOVAK,

│

Plaintiff-Appellant, │

> No. 21-3290

│

v. │

│

CITY OF PARMA, OHIO; KEVIN RILEY and THOMAS │

CONNOR, individually and in their official capacities │

as employees of the City of Parma, Ohio, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 1:17-cv-02148—Dan A. Polster, District Judge.

Argued: April 8, 2022

Decided and Filed: April 29, 2022

Before: SUTTON, Chief Judge; THAPAR and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Donald Screen, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for

Appellant. D. John Travis, GALLAGHER SHARP, LLP, Cleveland, Ohio, for Appellees.

ON BRIEF: Donald Screen, Subodh Chandra, THE CHANDRA LAW FIRM LLC, Cleveland,

Ohio, for Appellant. D. John Travis, Richard C.O. Rezie, Zoran Balac, GALLAGHER SHARP,

LLP, Cleveland, Ohio, for Appellees. David J. Carey, AMERICAN CIVIL LIBERTIES UNION

OF OHIO FOUNDATION, Columbus, Ohio, Freda J. Levenson, AMERICAN CIVIL

LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, Ohio, Ronald London,

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, Washington, D.C., Larry H.

James, CRABBE, BROWN & JAMES, LLP, Columbus, Ohio, Alejandro V. Cortes, R. Todd

Hunt, WALTER ǀ HAVERFIELD LLP, Cleveland, Ohio, Philip K. Hartmann, FROST BROWN

TODD LLC, Columbus, Ohio for Amici Curiae.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 2

_________________

OPINION

_________________

THAPAR, Circuit Judge. Anthony Novak thought it would be funny to create a

Facebook page that looked like the Parma Police Department’s. The Department was not

amused. In fact, officers arrested Novak and prosecutors charged him with a state crime. Novak

was acquitted at trial, and he now argues his constitutional rights were violated in the ordeal.

But because the officers reasonably believed they were acting within the law, Novak can’t

recover.

I.

According to Anthony Novak, he created “The City of Parma Police Department”

Facebook account—a knockoff of the Department’s real page—to exercise his “fundamental

American right” of “[m]ocking our government officials.” R. 6, Pg. ID 1238. And mock them

he did. In less than a day, he published half-a-dozen posts “advertising” the Department’s

efforts, including free abortions in a police van and a “Pedophile Reform event” featuring a “No

means no” learning station. The page spread around Facebook. Some readers praised its

comedy. Others criticized the page or called out that it was fake. (He deleted their comments.)

And still others (nearly a dozen, in total) felt it necessary to call the police station. A few asked

if the page was real. The rest expressed confusion or alerted the police to the fake page.

Once the Department heard about the page, it sprang into action. First, officers verified

that the official page hadn’t been hacked. Then, they posted a notice on the Department’s actual

page, confirming that it was the official account and warning that the fake page was “being

investigated.” R. 123-9, Pg. ID 24596. Novak then copied that post onto his knockoff page—

allegedly “[t]o deepen his satire.” R. 6, Pg. ID 1259.

Then-Lieutenant Kevin Riley tasked Detective Thomas Connor with figuring out who ran

the knockoff page. Connor sent a letter to Facebook, asking the company to preserve all records

related to the account and take down the page. Riley issued a press release and appeared on the

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 3

nightly news, announcing an investigation and warning the public about the fake page. Novak—

worried he’d get in trouble for the page—took it down.

Yet the officers continued their investigation. Connor eventually got a search warrant for

Facebook, and he discovered that Novak was the page’s author. Unsure what sort of case they

had, Riley and Connor sought advice from Parma’s Law Director, Timothy Dobeck. Dobeck

concluded they had probable cause and could seek two more warrants: an arrest warrant from

Magistrate Judge Edward Fink and a search warrant from Judge Deanna O’Donnell. The

grounds? An Ohio law that makes it illegal to use a computer to disrupt or impair police

functions. Ohio Rev. Code § 2909.04(B). Both judges found there was probable cause and

issued the warrants.

With warrants in hand, the officers arrested Novak, searched his apartment, and seized

his phone and laptop. He spent four days in jail before he made bond. Then prosecutors

presented the case to a grand jury, which indicted him for disrupting police functions. But a jury

later acquitted him. And after his acquittal, Novak brought dozens of claims against Riley,

Connor, and the City of Parma. In a prior appeal, we granted qualified immunity to the officers

on some claims. Novak v. City of Parma, 932 F.3d 421 (6th Cir. 2019). Now, Novak appeals the

district court’s grant of summary judgment to the defendants on the remaining claims.

II.

We review the district court’s grant of summary judgment de novo. Yates v. City of

Cleveland, 941 F.2d 444, 446 (6th Cir. 1991). Since Novak brings numerous interrelated claims,

we review them in four groups. We begin with his claims against the officers under 42 U.S.C.

§ 1983. Second, we tackle his municipal-liability claims against the City of Parma. Third, we

consider Novak’s state-law claims. And last, two miscellaneous claims.

A. Section 1983 Officer-Liability Claims

Novak brings several section 1983 claims against Lieutenant Riley and Detective Connor.

He alleges First Amendment retaliation, Fourth Amendment violations, and First Amendment

prior restraint. We address each in turn.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 4

1. Retaliation

Novak’s first set of claims alleges that the police officers retaliated against him in

violation of the First Amendment. For their part, the officers contend they are entitled to

qualified immunity.

Qualified immunity protects state officers against section 1983 claims unless (1) “they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was

clearly established at the time” of the offense. District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018) (cleaned up). And the burden lies with the plaintiff to show each prong. Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam); Cunningham v. Shelby County, 994

F.3d 761, 764–65 (6th Cir. 2021).

To meet his burden, Novak argues that Riley and Connor violated his clearly established

right to be free from retaliatory arrest. He suggests the arrest was retaliatory because the officers

based it on his Facebook page—which he argues is parody protected under the First Amendment.

But there’s no recognized right to be free from a retaliatory arrest that is supported by probable

cause. See Reichle v. Howards, 566 U.S. 658, 663 (2012). So to prevail on his claim, Novak

must show it was clearly established that the officers lacked probable cause to arrest him.

Because he hasn’t done so, the officers are entitled to qualified immunity.

Start with the basics. For probable cause to exist, “the facts and circumstances known to

the officer” must be sufficient to lead a “prudent man” to believe an offense has been committed.

Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (citation omitted). So here, we look to

whether a reasonable officer would believe each element of Ohio’s disruption statute was met.

Specifically, that Novak (1) used the computer or Internet (2) to “disrupt” or “interrupt” police

operations and (3) did so knowingly. See Ohio Rev. Code § 2909.04(B).

No one contests that Novak used a computer and the Internet to create his knockoff page.

And the officers believed that Novak’s page had “disrupted” their operations. They knew the

call center had received multiple calls about the page, and the statute imposes no lower bound on

how much disruption is required. So the officers could reasonably believe that the calls

constituted a disruption. As to the knowledge element, the officers were permitted to rely on

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 5

inferences. See United States v. Tagg, 886 F.3d 579, 587 (6th Cir. 2018). Here, the officers

inferred that Novak knew he was disrupting operations from his decisions to repost the

Department’s warning post on his own page and to delete comments that explained the page was

fake.

But there’s a catch: “[P]rotected speech cannot serve as the basis” for probable cause.

Leonard v. Robinson, 477 F.3d 347, 358 (6th Cir. 2007) (citing Sandul v. Larion, 119 F.3d 1250,

1256 (6th Cir. 1997)). While protected speech can be evidence that a speaker committed a

separate crime, the First Amendment bars its use as the sole basis for probable cause. See

Reichle, 566 U.S. at 668; see also Nieves v. Bartlett, 139 S. Ct. 1715, 1722, 1724 (2019); Novak,

932 F.3d at 431–32.

Take an example: Protest letters about the draft can support probable cause that the

protester didn’t intend to register, in violation of draft laws. Wayte v. United States, 470 U.S.

598, 612–13 (1985). There, the protected speech—the protest letters—is only evidence that the

protester is engaging in unprotected conduct that itself constitutes a crime (refusing to register

for the draft). The protest letters are not themselves the criminal conduct.

Novak argues that the officers’ probable-cause determination is based solely on protected

speech. Appellant’s Br. 45; see Novak, 932 F.3d at 431 (“The sole basis for probable cause to

arrest Novak was his speech.”). Whether Novak’s satirical posts were protected parody is a

question of fact. Novak, 932 F.3d at 428. But Novak didn’t just post fake event advertisements

mocking the police department. He also modeled his page after the Department’s, using the

same profile picture. He deleted comments that let on his page wasn’t the official one. And

when the Department tried to clarify that Novak’s page was imitating its own, he copied the

official page’s clarification post word for word.1

1

We recognize that our prior opinion in this case suggested that Novak’s speech was the only source of

probable cause for the officers. See Novak, 932 F.3d at 431. But we now review the question at summary judgment,

where our review is no longer limited to Novak’s complaint. And though Novak’s Facebook activity and its

consequences form the sole basis for probable cause (since he didn’t do anything else, like hack into the

Department’s page), it’s possible that not all of his Facebook activity was protected speech. While it’s reasonable

for Novak to argue that deleting comments and copying the Department’s clarification post were speech—

specifically, efforts to “deepen his satire,” R. 6, Pg. ID 1259—it was similarly reasonable for the officers to view

those activities as unprotected conduct.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 6

Whether these actions—deleting comments that made clear the page was fake and

reposting the Department’s warning message—are protected speech is a difficult question. After

all, impersonating the police is not protected speech. See United States v. Alvarez, 567 U.S. 709,

721 (2012); see also id. at 735 (Breyer, J., concurring); id. at 748 (Alito, J., dissenting); United

States v. Chappell, 691 F.3d 388, 393–94 (4th Cir. 2012). And for good reason—one can easily

imagine the mayhem that a scam IRS or State Department website could cause.2

But while probable cause here may be difficult, qualified immunity is not. That’s

because qualified immunity protects officers who “reasonably pick[] one side or the other” in a

debate where judges could “reasonably disagree.” Citizens in Charge, Inc. v. Husted, 810 F.3d

437, 443 (6th Cir. 2016). That’s just what the officers did—they reasonably found probable

cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly

establishes deleting comments or copying the official warning is protected speech. So even with

Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of

Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.

What’s more, the officers had good reason to believe they had probable cause. Both the

City’s Law Director and the judges who issued the warrants agreed with them. Reassurance

from no fewer than three other officials further supports finding that the officers “reasonably,”

even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned

up). That’s enough to shield Riley and Connor from liability.

Thus, the officers are entitled to qualified immunity on Novak’s retaliation claims.

2. Fourth Amendment

The same analysis guides our consideration of Novak’s Fourth Amendment claims.

Search, Seizure, and Arrest. Novak argues that the officers lacked probable cause for his

arrest, the search of his apartment, and the seizure of his phone and laptop. Yet our precedent

2

Indeed, even if a savvy scammer interspersed his fake website with parody, the criminal law would

prevail. Someone purporting to represent the State Department could end up on the hook for impersonating a

government agency, if the fake site was a misleading copycat of the real one. And a hacker who replaced the IRS

homepage with the tagline “No taxes due this year” could still be convicted based on his conduct—hacking into a

government website.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 7

offers a “complete defense” against these claims when officers relied on a magistrate judge’s

warrant. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (arrest); see Tlapanco v. Elges,

969 F.3d 638, 649 (6th Cir. 2020) (search and seizure). And here, the officers obtained warrants

from Magistrate Judge Fink and Judge O’Donnell before committing these alleged violations.

But this defense has two exceptions. The first covers cases when an officer provides

false information to obtain a warrant. Sykes, 625 F.3d at 305. To establish this defense, Novak

must show that (1) the officers knowingly or recklessly made false statements or significant

omissions; and (2) those “statements or omissions were material, or necessary, to the finding of

probable cause.” Id. (cleaned up).

Novak says that in seeking an arrest warrant from Magistrate Judge Fink, Connor offered

false information (that people called thinking the page was real) and left out important context

(that Novak’s only act was speech, and that the page was a parody or joke). He argues that this

negates the officers’ warrant defense.3

Yet Novak doesn’t show that Connor actually provided any false information or

misrepresented the nature of the calls. He complains that Connor was inconsistent: Connor told

Magistrate Judge Fink that “[p]eople believed [Novak’s page] was real,” yet later admitted in his

deposition that none of the callers in fact thought that. R. 107-1, Pg. ID 19128–32. So according

to Novak, Connor misled the magistrate judge. But the call transcripts reveal that some of the

callers thought the page might be real. Perhaps Connor’s statement could be considered an

exaggeration, but not an outright falsehood.

As to Connor’s omissions about the nature of Novak’s page, it’s true that Connor called

the page a “fake” Facebook account rather than a “joke” or “parody” account. And he likewise

did not specify that the “posts” he complained of in his warrant affidavits were speech.

But neither of these claimed falsities was material to Magistrate Judge Fink’s probable-

cause determination. Indeed, Magistrate Judge Fink remembered that people called because they

were confused, not because they thought the page was real. And he noted that it was the fact the

3

Because Judge O’Donnell relied on Magistrate Judge Fink’s prior probable-cause determination to issue

the search warrant, Novak argues the same false statements and omissions tainted this second warrant as well.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 8

calls occurred at all—rather than their content—that grounded his disruption analysis. Further,

Connor’s portrayals of Novak’s Facebook page as “fake” rather than “parody” and “posts” rather

than “speech” were just that—portrayals. It wasn’t Connor’s job to supply the law, it was his

responsibility to supply the facts. And as Magistrate Judge Fink explained, he would have made

the same decision even if he had read the entire Facebook page himself. So Novak can’t show

that these statements were material to the magistrate judge’s probable-cause determination. This

exception to the warrant defense does not apply.

Nor does the second exception. That one applies if “the warrant is so lacking in indicia

of probable cause, that official belief in the existence of probable cause is unreasonable.”

Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989). But as discussed above, the

question of probable cause is a close one. So even if the warrants were not supported by

probable cause, reliance on them was far from unreasonable. Thus, the officers are entitled to a

“complete defense” on these claims. Sykes, 625 F.3d at 305.

Malicious Prosecution. Novak also alleges malicious prosecution under section 1983.

To prevail, Novak must first show that the officers participated in or influenced the decision to

criminally prosecute him. Id. at 308. And because we construe participation in light of

traditional “tort causation principles,” the officers must have done more than passively

cooperate. Id. at 308 n.5. Instead, Novak must show that the officers aided in the decision to

prosecute. Id.

They did not. A prosecutor’s independent charging decision typically breaks the causal

chain for malicious-prosecution purposes. Id. at 316. The only exception is when an officer

could “reasonably foresee that his misconduct”—read, false statements—would result in an

independent decision to prosecute the plaintiff. Id. (citation omitted). Here, the prosecutor

independently decided to charge Novak. He reviewed the content of Novak’s Facebook page

along with the police report, heard from Connor that the police had received a handful of calls

about the page, and determined that the page was not protected speech. And Novak does not

argue on appeal that the police report included any false statements. Nor does he contend that

the prosecutor relied on false statements from Connor in deciding to prosecute him. So there

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 9

was no misconduct at play here to maintain the causal chain through the prosecutor’s

independent decision to bring a case against Novak.4

A plaintiff can also show that an officer “participated” by alleging that an officer

deliberately or recklessly gave false testimony at trial. Johnson v. Moseley, 790 F.3d 649, 655

(6th Cir. 2015). Novak says that happened here—he alleges that Connor lied to the jurors by

telling them Novak’s Facebook page interrupted his work on another case. Specifically, he told

them he had to postpone a DNA swab and missed a pretrial conference.

But Novak does not support this allegation. Instead, he merely points out that the DNA

swab’s and pretrial conference’s original dates aren’t marked in Connor’s log, and asserts that

they were scheduled for a different day—thus implying that Connor lied that he had other

obligations the day he worked on Novak’s case. Not quite a smoking gun. And more

importantly, not enough to support anything beyond “negligence or innocent mistake,” even

assuming Connor got the dates wrong at all. Id. (quoting Robertson v. Lucas, 753 F.3d 606, 617

n.7 (6th Cir. 2014)). The district court properly granted summary judgment for the officers on

Novak’s malicious-prosecution claim.

3. Prior Restraint

Novak next argues that the officers violated the First Amendment by imposing prior

restraints on his speech. A prior restraint is an administrative or judicial order that forbids

certain speech ahead of when that speech is planned to take place. Alexander v. United States,

509 U.S. 544, 550 (1993). It may also include threats of prosecution or an “order to a private

party to take a specific action” when an officer acts with government authority. Novak, 932 F.3d

at 433. Because the right to speak without censorship lies at the core of the First Amendment,

prior restraints face a “heavy presumption against” validity. Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 70 (1963).

4

Malicious-prosecution claims also require three other elements, one of which is the absence of probable

cause. Thompson v. Clark, 142 S. Ct. 1332, 1337–38 (2022); Sykes, 625 F.3d at 308–09. Because we resolve

Novak’s claim on the first element, we need not discuss the rest here.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 10

Novak claims that three actions constitute unlawful prior restraints: (1) Riley’s television

interview announcing the investigation of Novak’s page; (2) the seizure of his phone and laptop;

and (3) Connor’s letter to Facebook. But none of these acts meets the definition of a prior

restraint.5

First, Riley’s interview. Novak claims that Lieutenant Riley “publicly threatened to

criminally prosecute” the Facebook page’s author. Appellant’s Br. 47. And he’s right that “the

threat of invoking legal sanctions” may be an unlawful prior restraint. See Bantam Books,

372 U.S. at 67. But Novak provides no facts to support his claim. While he references a

television interview and a press release, he does not point to any record evidence of a threat. By

contrast, the officers point out that while Riley did announce a criminal investigation into the

page, the interview’s focus was to “warn the public” that the page was fake and “to stop any

continued interruption at the communication center.” R. 95-1, Pg. ID 5508. Indeed, even Novak

admitted in his deposition that Riley didn’t threaten criminal prosecution in his interview. So

Novak has presented no dispute of fact as to whether there was even a threat.

Second, the seizure. On this front, Novak argues that the officers “effected a classic prior

restraint” by “block[ing] virtually all channels of communication that would otherwise have been

available to Novak.” Appellant’s Br. 48. In support of this argument, he cites the Supreme

Court’s decision in City of Ladue v. Gilleo, 512 U.S. 43 (1994). In Gilleo, the Court expressed

skepticism of laws that “foreclose an entire medium of expression” like picketing, distributing

pamphlets, or displaying residential signs. Id. at 55–56. But the opinion did not classify such

restrictions as prior restraints. And more importantly, it’s irrelevant here. Seizing Novak’s

phone and laptop did not block all channels of communication. Indeed, the seizure didn’t even

block him from using Facebook. Novak remained free to borrow friends’ electronics or to use a

library computer if he wished to continue his social-media antics. So taking his phone and

laptop imposed no prior restraint on Novak’s speech.

5

Novak argues that the goal of these actions was as much to prevent future speech as to punish past speech.

That may be true, but the problem for him is that the officers’ actions don’t amount to a prior restraint. So even if

they were entirely aimed at censoring the content of future posts on the page, his claim can’t succeed.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 11

Last, Detective Connor’s letter to Facebook. In this letter—sent soon after the Parma

Police Department discovered Novak’s page—Connor asked Facebook to retain records related

to the page in anticipation of a search warrant. Connor then wrote: “It is further requested that

this account be taken down or suspended immediately.” R. 98-5, Pg. ID 6413. That’s all. No

demand; no threat. Indeed, Connor himself testified that he didn’t have “any expectation”

whether Facebook would comply with his request. R. 107-1, Pg. ID 19171. So the letter was a

far cry from an “order” under our prior-restraint doctrine; it was a mere request. See Novak, 932

F.3d at 433. What’s more, by the time Facebook got around to considering the request, Novak

had deleted the page himself. The letter thus failed to have any effect at all on Novak’s ability to

speak, since he removed the page of his own accord.

So Novak’s prior-restraint claim against Lieutenant Riley and Detective Connor fails as

well.

B. Municipal Liability

But Novak didn’t just sue the officers. He also sued the City of Parma under a theory of

municipal liability. To show that Parma is liable under section 1983, Novak can’t just show he

suffered a constitutional injury inflicted solely by a City employee. Instead, he must show both

that he suffered an injury and that the alleged violation was caused by the City’s policy or

custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). There are four avenues to

make such a claim: official policy or legislation; action authorized by a designated

decisionmaker; failure to train or supervise employees; or a custom of acquiescence in rights

violations. Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019). Novak pursues all

but the official-policy path. But even assuming Novak suffered a constitutional violation (no

small assumption, as discussed above), none of his arguments is persuasive.

Authorized Action. Municipal liability attaches to actions taken by a city’s authorized

policymakers only when those actions set official municipal policy. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 477, 481–83 (1986). And as with any municipal-liability claim, that

policy must have caused the plaintiff’s alleged injury. Monell, 436 U.S. at 691.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 12

Novak argues that Parma’s Law Director, Timothy Dobeck, set the City’s official policy

when he determined that Riley and Connor had probable cause to continue investigating Novak.

And he contends that because Dobeck had the final say over the City’s legal opinions, his advice

to the officers set Parma’s policy on the matter. See Bible Believers v. Wayne County, 805 F.3d

228, 260 (6th Cir. 2015) (en banc). But by Novak’s lights, every city prosecutor would “set

policy” for the municipality several times a day, every time he assessed probable cause. And

that cannot be the case.

This argument also overstates Dobeck’s role in both municipal decisionmaking and

Novak’s alleged violations. The Supreme Court in Pembaur was careful to distinguish mere

“advice” from “orders.” 475 U.S. at 484–85. And here, neither Dobeck nor the officers

considered his probable-cause determination an order to keep investigating Novak. Cf. id. at 485

(declining to “disingenuously label[] the Prosecutor’s clear command mere ‘legal advice’”). Yet

even if Dobeck had made the final municipal determination that the officers had probable cause

to arrest Novak, the judges’ independent determinations eliminate the causal connection. Id. at

484 (noting that a prosecutor’s command that officers forcibly enter “directly caused the

violation of petitioner’s Fourth Amendment rights”). For both of these reasons, Novak’s

authorized-action theory fails.6

Failure to Train. A municipality may be liable for failing to train its police officers only

if (1) the officers’ training “is inadequate to the tasks that the officers must perform”; (2) this

inadequacy stems from the municipality’s “deliberate indifference” to the constitutional rights at

issue; and (3) the inadequacy “actually caused,” or “closely relate[s] to,” the claimed violation.

Roell v. Hamilton County, 870 F.3d 471, 487 (6th Cir. 2017) (cleaned up). Here, Novak claims

that Parma should have trained its officers “that pure speech is not a crime” save for a few

exceptions. Appellant’s Br. 59.

Novak’s claim can survive summary judgment if he points to evidence that Parma

“fail[ed] to provide any training on key duties with direct impact” on free-speech issues.

6

Below, Novak also argued that the officers were considered policymakers under this theory of municipal

liability. But as he makes no such argument on appeal, he has abandoned it. See Boyd v. Ford Motor Co., 948 F.2d

283, 284 (6th Cir. 1991).

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 13

Gregory v. City of Louisville, 444 F.3d 725, 754 (6th Cir. 2006). He says that’s the case because

Parma officers’ only First Amendment training covered protests. There was no discussion of the

complexities of parody or other forms of protected speech. What Novak fails to appreciate is

that the intricacies of parody are not part of the officers’ “key duties” the way protest

management is. So there was no duty to further train them here.

What’s more, Novak cannot show that deficiencies in training caused the alleged

constitutional violations. Indeed, the officers were trained to contact the Law Department

(namely, Dobeck) when difficult questions arose. That’s just what they did: Riley and Connor

looked to Dobeck for advice before pursuing a case. Once he assured them of probable cause,

they obtained independent warrants for Novak’s arrest and the search of his apartment from two

different judges. As the district court pointed out, it strains belief to think an introductory primer

on the First Amendment would have led the officers to a different conclusion than three trained

lawyers. So Novak can’t show that any failure to train actually caused or closely relates to his

objections.

Custom. Finally, Novak contends that Parma had an established custom and pattern of

“indifference to protected speech in criminal investigations.” Appellant’s Br. 57. And he runs

through a list of cases where Parma had to reverse course over protected-speech claims. But he

does not explain how this list of cases could form a “clear and persistent pattern” so strong that it

resembles official policy condoned by the City. Thomas v. City of Chattanooga, 398 F.3d 426,

432 (6th Cir. 2005). Perhaps unsurprising, since it’s a “heavy burden” to show municipal

liability based on custom. Id. at 433. Novak doesn’t even suggest (as he must) that this pattern

resulted from a deliberate choice “from among various alternatives” that amounts to an unwritten

“legal institution.” Doe v. Claiborne County ex rel. Claiborne Cnty. Bd. of Educ., 103 F.3d 495,

507–08 (6th Cir. 1996) (cleaned up). Nor does he explain how that policy—despite independent

warrants from Magistrate Judge Fink and Judge O’Donnell—caused a constitutional violation.

See Thomas, 398 F.3d at 429 (quoting Doe, 103 F.3d at 508). He simply argues that “Parma

should have known better.” Appellant’s Br. 58. This is not enough to support a finding of

municipal liability, so we affirm.

No. 21-3290 Anthony Novak v. City of Parma, Ohio Page 14

C. State-Law Claims

Novak brings a jumble of state-law claims against the defendants as well. But Ohio law

provides the officers statutory immunity so long as they didn’t act “with malicious purpose, in

bad faith, or in a wanton or reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(b). To find this

exception applicable, Ohio courts have looked for “intent to harm,” “a complete lack of care,” or

“an intentional deviation from a definite rule of conduct.” Henderson v. City of Euclid,

No. 101149, 2015 WL 114601, at *11 (Ohio Ct. App. Jan. 8, 2015). And here, the burden lies

with Novak to identify specific facts that undermine the officers’ immunity. See Szefcyk v.

Kucirek, No. 15CA010742, 2016 WL 228601, at *3 (Ohio Ct. App. Jan. 19, 2016).

Novak has not done so. He argues the officers are liable since they acted with “a

malicious state of mind.” Appellant’s Br. 62. Ohio law defines that concept as a “willful and

intentional design to do injury, or the intention or desire to harm another, usually seriously,

through unlawful or unjustified conduct.” Schoenfield v. Navarre, 843 N.E.2d 234, 239 (Ohio

Ct. App. 2005) (cleaned up). As we have discussed at length above, the officers’ conduct may

have been lawful and justified by probable cause. But even if it wasn’t, the officers’ mistaken

understanding of First Amendment law is far from intentional harm.

Novak identifies several pieces of evidence that he argues show the officers acted with

malice. He points out that Connor said he “didn’t care about Novak’s First Amendment rights”

and argues that Connor lied to Magistrate Judge Fink, to the grand jury, and at trial. R. 123,

Pg. ID 24409. We examine each of these in turn.

In context, Connor’s deposition testimony specified that he wasn’t focused on First

Amendment concerns because it “wasn’t the focus of [his] investigation.” R. 107-1, Pg. ID

19148. But failure to spot the issue doesn’t offer evidence for a jury to conclude that Connor

acted with a “desire to harm” Novak, as required to show malicious intent. Schoenfield,

843 N.E.2d at 239 (citation omitted). At most, it shows negligence.

Novak next says Connor misled Magistrate Judge Fink to obtain a warrant for his arrest.

The purported lies? That callers believed the page was real, and that Connor didn’t specify the

posts were speech and the page was a parody. But as discussed above, none of these statements

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misrepresented the facts in this case. The call transcripts support Connor’s assertion that some

people thought the page might be real. And describing the facts as “posts” on a “fake” page

rather than “speech” on a “parody” page was merely his portrayal. It cannot support a finding of

malice.

According to Novak, Connor’s grand-jury testimony also evinces his malicious intent.

Connor testified before the grand jury that Lieutenant Riley told him about Novak’s Facebook

page and said that “now the police department including the 911 call center and city hall were

getting inundated with phone calls” about the account. R. 86-1, Pg. ID 4431. Connor also

testified that he had listened to the calls to “the 911 dispatch center,” and he found that “people

honest to God believed” that the Department had published the posts and that “this was real

information.” Id. at 4432.

Novak takes issue with these statements because, according to him, the call center was

hardly “inundated” by the few calls it received about the page. And he says it was misleading to

say the calls came to the 911 dispatch center when no one actually called 911. But that cherry-

picks Connor’s testimony. Immediately after saying that Riley told him the call center was

“inundated,” Connor specified that there were just 11 calls. Id. at 4431–32. And though it was

the non-emergency dispatch line, not 911, that received phone calls about the page, Connor

simply noted that the calls had come in to the “911 dispatch center”—he didn’t say people had

called 911. This was entirely accurate, since both 911 calls and non-emergency calls go to the

same dispatch center.

Novak’s last objection is about the nature of the calls. He argues that Connor

misrepresented their content by saying that callers “honest to God believed” the page was real.

Id. at 4432. But this is closer to mischaracterization than misrepresentation. The transcripts

show that most callers were confused, wondering whether the real page had been hacked and

asking the dispatcher to confirm the Department hadn’t posted the things they’d seen. Certainly,

it was a stretch for Connor to say people thought the content of Novak’s posts was real. But

without more, these inconsistencies can’t support a jury finding that Connor intended to harm

Novak.

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Connor’s trial testimony is no more help. As discussed above, Novak has not shown that

Connor was anything but truthful, or at most negligent, in discussing his scheduling conflicts on

another case (the DNA swab and pretrial conference). So this final piece of evidence does little

for Novak in his quest to show malice.

Thus, Novak’s state-law claims likewise fail.

D. Miscellaneous Claims

Privacy Protection Act. Throughout this litigation, Novak has maintained a claim under

the Privacy Protection Act, which bars certain searches and seizures of work-product materials.

See 42 U.S.C. § 2000aa(a). But on this appeal, Novak fails to develop any argument suggesting

we should reverse the district court’s grant of summary judgment to the defendants. So he has

forfeited this claim. See Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 621 (6th Cir. 2013)

(“Issues adverted to in a perfunctory manner, without some effort to develop an argument, are

deemed forfeited.”).

Conspiracy. Novak also began his suit alleging Riley, Connor, and an unnamed

individual conspired to violate his rights. In our prior appeal, we noted that Novak would need

to provide more facts to maintain his conspiracy argument. Novak, 932 F.3d at 436–37. As the

district court found below, Novak failed to do so. And he makes no mention of the claim on

appeal. So we affirm the district court. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.

1991).

* * *

Little did Anthony Novak know when he launched “The City of Parma Police

Department” page that he’d wind up a defendant in court. So too for the officers who arrested

him. At the end of the day, neither got all they wanted—Novak won’t be punished for his

alleged crime, and the defendants are entitled to summary judgment on Novak’s civil claims.

But granting the officers qualified immunity does not mean their actions were justified or

should be condoned. Indeed, it is cases like these when government officials have a particular

obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two

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appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And

from the beginning, any one of the officials involved could have allowed “the entire story to turn

out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common

Sense (Oct. 19, 2021). Unfortunately, no one did.

Because the law compels it, we affirm.