Petition for Writ of Certiorari — Anthony Sevy, Petitioner v. Philip Barach
Supreme Court briefOct 30, 2020
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APPENDIX
INDEX TO APPENDICES
Opinion in the United States Court of Appeals for the Sixth Circuit
(July 1, 2020) ................................................................................................... App. 1
Opinion and Order Granting in Part and Denying in Part Defendants’ Motion
for Summary Judgment in the United States District Court Eastern
District of Michigan Southern Division
(August 5, 2019)............................................................................................. App. 23
Order Denying Rehearing in the United States Court of Appeals for the Sixth
Circuit
(August 5, 2020)............................................................................................. App. 46
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NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0386n.06
Case No. 19-2038
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANTHONY SEVY,
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)
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)
)
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)
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Plaintiff-Appellee,
v.
PHILIP BARACH,
Defendant-Appellant.
FILED
Jul 01, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION
BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.
McKEAGUE, Circuit Judge. In February 2017, Anthony Sevy went to the state
courthouse in Royal Oak, Michigan to pay a parking ticket. Sevy tried to pay the $10 ticket with
his debit card, but he did not want to pay the $1.75 processing fee. So he left, went to the bank,
and returned with $10 in rolled pennies. But the court didn’t accept those coins, because under
state law it did not have to accept any coins that weren’t pure gold or silver. Sevy argued with the
clerk and two court security officers—one of whom, Philip Barach, is the appellant here. Things
escalated, and eventually Sevy was taken to the ground twice and arrested. The issue in this case
is whether the court security officers went too far and thus violated Sevy’s constitutional rights.
Sevy sued both officers under 42 U.S.C. § 1983, alleging violations of his First and Fourth
Amendment rights. The district court denied Barach qualified immunity on those claims. Barach
then filed this appeal. On the Fourth Amendment claims, Barach’s appeal comes down to factual
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disputes, which we lack jurisdiction to resolve at this interlocutory stage. On the First Amendment
claim, Barach has demonstrated that Sevy’s asserted First Amendment right was not clearly
established at the time of the alleged violation, so Barach is entitled to qualified immunity on that
claim. Therefore, we DISMISS the appeal of the district court’s judgment on the Fourth
Amendment claims for lack of jurisdiction, and we REVERSE the judgment of the district court
on the First Amendment claim.
I. Background
Anthony Sevy got a $10 parking ticket. In February 2017, he went to the state courthouse
in Royal Oak, Michigan to pay it. He tried to pay with his debit card, but the clerk told him that
would cost another $1.75, a processing fee. Sevy did not want to pay the extra fee, so he left.
He came back with $10 in rolled pennies. He went through security, where the court
security officers (after the bag set off the X-ray machine) searched the bag and saw the pennies,
but no weapons or other contraband. Apparently, Court Security Officer Philip Barach warned
Sevy that the court wouldn’t accept the coins. But Sevy went ahead anyway.
Sure enough, the clerk wouldn’t accept the pennies. As it turns out, under a longstanding
Michigan statute, the court was not required to accept coins that weren’t pure gold or silver. Mich.
Comp. Laws § 21.153. This rule was posted on a sign attached to the clerk’s window.
After the clerk told Sevy that she wouldn’t accept the coins, Court Security Officer Harold
Marshall approached and joined the clerk behind the window. The parties disagree on how exactly
the following exchange went, but all agree it was an argument. Marshall said he told Sevy to leave.
He also claimed Sevy was standing his ground but not “physically squaring off.” Sevy, for his part,
said that once he realized the clerk wouldn’t accept his coins, he asked for his ticket to be returned,
but it took a little while to get it back.
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Hearing the commotion, Barach made his way over to the window and joined Marshall,
who was now also on the same side of the window as Sevy. According to Sevy, Barach was being
aggressive with him and calling him a punk. According to Barach, Sevy was insulting both officers
and the clerk. The argument continued for a few seconds, but eventually Sevy turned to leave the
courthouse.
Here, the parties’ stories diverge even more. Start with Sevy’s version. According to him,
he was leaving the courthouse and had made it through the vestibule when Barach grabbed him
and turned him around. As Barach pushed him, Sevy initially tried to get his footing, until Barach
threw him to the ground. While on the ground, Barach choked him by grabbing the back and side
of Sevy’s neck. At one point Sevy lost consciousness. When he came to, Royal Oak police officers
arrived to help handcuff Sevy and escort him to the elevator.
Barach tells a different story. According to him, Sevy made it to the vestibule door, but
then he froze. Barach put his arm on Sevy’s back to nudge him so he’d keep walking. At that point,
Sevy turned sharply around and knocked Barach’s hand down. He took an aggressive stance and
got in Barach’s face. Barach decided to arrest Sevy, so he grabbed Sevy near his collarbone and
tried to throw him to the ground—and eventually did, after a few moments of Sevy trying to pull
away.
We can piece together some of what happened by looking at the courthouse surveillance
videos. Sevy did open the first door in the vestibule. Barach did put his hand on Sevy’s back. Sevy
did turn around after Barach put his hand on him. And shortly after Sevy turned, Barach grabbed
him, the two struggled for a few seconds, and then Barach took Sevy to the ground. But the events
unfolded quickly, and the view was partially obstructed by the door frame and a bulletin board.
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After Sevy was handcuffed, Barach and Marshall led him out of the vestibule and over to
the elevator (where he would be processed upstairs). The parties again dispute what happened next,
only this time there was no video inside the elevator to capture it. Sevy says one of the officers
threw him to the ground, knocking Sevy’s head against the side of the elevator in the process.
Barach says he threw Sevy to the ground, but only after Sevy threw his head back and slammed
Barach in the nose. Marshall says he saw Sevy thrown to the ground, but he didn’t see what caused
it because he was looking at Sevy’s feet.
Sevy was interviewed, detained for a little while, and then sent home. Shortly after, he was
charged with disorderly conduct, a charge to which he pled no contest. He then sued Barach and
Marshall in the United States District Court for the Eastern District of Michigan. Sevy asserted
several theories of recovery, including Fourth Amendment excessive force and First Amendment
retaliation. Barach and Marshall moved for summary judgment, asserting the defense of qualified
immunity.
The district court granted the motion in part and denied it in part. Sevy v. Barach, No.1713789, 2019 WL 3556706, at *12 (E.D. Mich. Aug. 5, 2019). The court granted qualified
immunity to Marshall, since he was not very involved in the use of force. Id. at *8. But the court
denied qualified immunity to Barach on the First Amendment and both Fourth Amendment claims.
Id. at *12. On the first Fourth Amendment excessive force claim, specifically the vestibule
incident, the court denied qualified immunity because it found that the crime for which Sevy was
arrested was not serious; that Sevy, unarmed and smaller than Barach, posed “little to no” threat
to Barach; and that Sevy was “at most” only passively resisting. Id. at *6–8. For the elevator
incident, because the court had to take Sevy’s version of events as true, it had to assume that Barach
threw Sevy to the ground unprovoked. Id. at *8. So the court found that Barach was not entitled to
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qualified immunity for the elevator incident. Id. On the First Amendment retaliation claim, the
court found that Barach’s use of force could reasonably have been motivated by Sevy’s protest of
the coin and debit card processing policies, leading to the conclusion that Barach was not entitled
to qualified immunity on that claim. Id. at *11. Barach timely filed this interlocutory appeal.
II. Standard of Review
We review the legal aspects of a district court’s qualified-immunity analysis de novo. Jones
v. City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020). To determine whether a government actor is
entitled to qualified immunity, we undertake a two-part inquiry: “(1) did a violation of a
constitutional right occur, and, if it did, (2) was that right clearly established at the time of the
violation?” Id. At the interlocutory stage, we view the facts in the light most favorable to the
plaintiff—here, Sevy. Coffey v. Carroll, 933 F.3d 577, 584 (6th Cir. 2019).
III. Discussion
Barach appeals the district court’s qualified-immunity denials on Sevy’s Fourth
Amendment excessive force and First Amendment retaliation claims. Sevy argues that this court
does not have jurisdiction to hear the appeal and that, in any event, Barach is not entitled to
qualified immunity. For the reasons set forth below, we hold that we lack jurisdiction over the
excessive-force claims. We also hold that we do have jurisdiction over the First Amendment
retaliation claim, and Barach is entitled to qualified immunity.
1. Jurisdiction
We have jurisdiction to review a district court’s denial of qualified immunity. 28 U.S.C.
§ 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But our jurisdiction is limited. We can
review “only purely legal questions.” McGrew v. Duncan, 937 F.3d 664, 669 (6th Cir. 2019).
Whether the district court record sets out a genuine issue of fact for trial is not one of these purely
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legal questions. Kindl v. City of Berkley, 798 F.3d 391, 398 (6th Cir. 2015) (quoting Johnson v.
Jones, 515 U.S 304, 319–20 (1995)). If a defendant wants the court to have jurisdiction over his
interlocutory appeal, he must be “willing to concede the most favorable view of the facts to the
plaintiff for purposes of the appeal.” Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020)
(quoting Barry v. O’Grady, 895 F.3d 440, 443 (6th Cir. 2018)).
The Scott v. Harris Exception. There is an exception to this jurisdictional rule, but it’s a
narrow one. The court can sometimes disregard a district court’s factual finding, but only when it
is so “blatantly contradicted by the record” that “no reasonable jury could believe it.” Scott v.
Harris, 550 U.S. 372, 380 (2007). The facts of Scott illustrate just how narrow this exception is.
The case turned on how a motorist was driving during a car chase. Id. at 378-79. According to the
motorist, he was driving safely—slowing for turns and intersections, using his turn signal, not
running anybody off the road, and maintaining control of the vehicle. Id. at 379. The problem was
that there was a video capturing the whole scene. Id. And the video told “quite a different story”:
it showed the motorist “racing down narrow, two-lane roads” at “shockingly fast” speeds,
“swerv[ing] around more than a dozen other cars, cross[ing] the double-yellow line,” and forcing
cars off the road, among other things. Id. The video rendered the motorist’s version of events
“visible fiction,” “so utterly discredited by the record that no reasonable jury could have believed
him.” Id. at 380–81. So the Supreme Court considered the facts “in the light depicted by the
videotape.” Id. at 381. We’ve since elaborated on how narrow the Scott holding is: “only ‘where
the trial court’s determination that a fact is subject to reasonable dispute is blatantly and
demonstrably false’ based on irrefutable evidence such as clear video footage, ‘a court of appeals
may say so, even on interlocutory appeal.’” Kindl, 798 F.3d at 399 (quoting Moldowan v. City of
Warren, 578 F.3d 351, 370 (6th Cir. 2009)).
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Barach argues that his case falls under the Scott exception. As in Scott, here there were
video cameras recording the scene. Barach claims these videos clearly contradict the district
court’s factual accounts of the vestibule incident, especially its finding that whether Sevy actively
resisted arrest was subject to reasonable dispute. His argument is focused on three key alleged
errors in the district court’s factfinding.
First, Barach takes issue with the district court’s conclusion that Sevy was not physically
aggressive at the window. According to Barach, the videos clearly show Sevy “turn and step
toward Ofc. Barach in obvious anger.” Appellant Br. at 25. But the record does not clearly
contradict the district court’s account. According to Officer Marshall, Sevy was not squaring off
or being physically aggressive—he was simply standing his ground. The videos show Sevy
addressing Barach, but they do not show Sevy raising his hands or making any other motions that
would render the district court’s conclusion that he wasn’t physically aggressive “visible fiction.”
See Scott, 550 U.S. at 380–81.
Second, Barach claims the district court failed to realize that Sevy was physically assaultive
toward Barach when they entered the vestibule. Specifically, he claims that as Sevy was leaving,
he stopped, froze, turned suddenly, knocked Barach’s hand down, and took an aggressive stance.
But the videos again do not clearly support this account enough to trigger the Scott exception. For
one, the view of the vestibule is at least partially obstructed by the door in both videos. And while
we see Sevy turn around after Barach placed his hand on Sevy’s back, it is not clear whether the
events unfolded exactly as Barach describes. This again is hardly the type of clearly contradicting
video evidence that was available in Scott.
Third and finally, Barach claims the videos clearly show Sevy actively resisting arrest in
the vestibule. He gives three reasons. First, Barach argues Sevy refused to follow an order to leave.
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But Sevy denies this, and the videos do not have any audio, so they cannot clearly contradict Sevy’s
account. Second, Barach argues Sevy was physically resistive by knocking Barach’s hand down
and getting in Barach’s face. But as we’ve already said, the videos do not clearly show this. Third,
Barach argues that Sevy struggled against Barach before Barach ultimately took him down. But
the video footage of this part is obstructed on both fronts—in one angle by Barach’s back, in the
other by the door and a bulletin board. Thus, there is not enough to say the videos clearly contradict
the district court’s conclusion that Sevy was merely struggling to get his bearings before the
takedown.
Vestibule Incident. So Barach does not satisfy the Scott exception. And he never concedes
Sevy’s view of the facts for purposes of his appeal. See Adams, 946 F.3d at 948.1 True, there have
been cases where we’ve exercised jurisdiction even though the defendant never conceded the
plaintiff’s version of the facts. See Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 602 n.5 (6th
Cir. 2005); Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002). But that was only when the factual
disputes were “minor,” Beard, 402 F.3d at 602 n.5, or resolving the factual disputes wasn’t
necessary to resolving the legal question—in other words, the factual issues were discrete from
the legal ones, Phelps, 286 F.3d at 298. If, on the other hand, the factual disputes are “crucial to”
the appeal, then we must dismiss for lack of jurisdiction. Adams, 946 F.3d at 951.
Although Judge Readler would reach the merits of qualified immunity for the Fourth Amendment claim, we reiterate
that under Adams, there are only “two narrow circumstances in which an interlocutory appeal record may contain
some dispute of fact.” Adams, 946 F.3d at 948. One is the Scott exception. Id. The other is when the defendant, “despite
disputing a plaintiff’s version of the story, is ‘willing to concede the most favorable view of the facts to the plaintiff
for purposes of the appeal.’” Id. (quoting Barry v. O’Grady, 895 F.3d 440, 443 (6th Cir. 2018)). “[O]therwise, we
cannot entertain the defendant’s arguments, no matter how meritorious they may be.” Phelps v. Coy, 286 F.3d 295,
298 (6th Cir. 2002); see also Barry, 895 F.3d at 445. And Barach does not concede Sevy’s version of the facts on the
Fourth Amendment claim for purposes of his appeal. See Appellant Br. at 24–25 (“The District Court committed four
significant legal errors in its conclusion that Ofc. Barach is not entitled to qualified immunity for this claim. Three
errors were factual errors that are plainly contradicted by the record, and those errors underly the fourth error in
application of the Graham standard.”).
1
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Here, the factual disputes are crucial to Barach’s appeal. Consider, for instance, the issue
of whether Sevy disobeyed orders to leave the courthouse. The parties dispute whether this
occurred. And our excessive-force cases look to whether the plaintiff disobeyed the officer’s
orders. See Eldridge v. City of Warren, 533 F. App’x 529, 535 (6th Cir. 2013) (noting that
“noncompliance” can amount to active resistance if paired with “something more,” such as “verbal
hostility”). So to resolve the issue of whether a constitutional violation occurred, we’d need to
resolve whether Sevy disobeyed orders to leave. Factual disputes like this are crucial to Barach’s
appeal on this Fourth Amendment claim. And for that reason, we lack jurisdiction to hear it.
Adams, 946 F.3d at 951.
Elevator Incident. One last note. The district court also concluded that Barach was not
entitled to qualified immunity for excessive force used during the elevator incident. Sevy, 2019
WL 3556706, at *8. On appeal, Barach focuses his briefing on the vestibule incident. But no
matter, because we have no trouble concluding that the factual disputes are crucial to any appeal
involving the elevator incident—the whole issue comes down to the disputed question of whether
Sevy did anything to provoke Barach throwing him down. We lack jurisdiction to review that issue
as well.
2. First Amendment Retaliation
That leaves the First Amendment retaliation claim. To prove a claim of First Amendment
retaliation, plaintiffs must demonstrate “(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected
conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). If the plaintiff shows that the
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protected conduct was at least a substantial or motivating factor behind the defendant’s adverse
action, then the burden shifts to the defendant to show he would have taken the same action even
if the plaintiff had not engaged in protected conduct. Smith v. Campbell, 250 F.3d 1032, 1037 (6th
Cir. 2001).
We begin by noting that Sevy would have an uphill battle in showing causation. For one,
it appears that he engaged in a mix of protected and unprotected activity. He argues he paid in
pennies to protest the debit card processing fee. Symbolic protest is protected activity. See Hurley
v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995); Texas v. Johnson,
491 U.S. 397, 413 (1989). He could also criticize the court officers for enforcing the processing
fee and the coin rule—that, too, would be protected activity. See Barrett v. Harrington, 130 F.3d
246, 264 (6th Cir. 1997). But disorderly conduct is not protected activity. See Hagedorn v. Cattani,
715 F. App’x 499, 506 (6th Cir. 2017). And Sevy pled no contest to disorderly conduct. A mix of
protected speech and unprotected conduct makes the causation issue, to borrow a word from a
previous case, “thorny.” Novak v. City of Parma, 932 F.3d 421, 430–31 (6th Cir. 2019).
Add to that the legal framework. First Amendment retaliation claims often involve
retaliatory arrests. But to establish a retaliatory arrest, plaintiffs generally must prove that the
arresting officer lacked probable cause. Nieves v. Bartlett, 139 S. Ct. 1715, 1721–23 (2019);
Hartman v. Thompson, 931 F.3d 471, 484–85 (6th Cir. 2019). On appeal in this case, Sevy does
not argue that Barach lacked probable cause to arrest him. That means his retaliation claim is not
based on the arrest itself. Rather, Sevy’s claim is based on the allegedly excessive force Barach
used in carrying out the arrest. This certainly seems like a case where it would be “particularly
difficult to determine whether the adverse government action was caused by the officer’s malice
or the plaintiff’s potentially criminal conduct.” Nieves, 139 S. Ct. at 1724.
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Regardless, we need not untie this Gordian knot, because Sevy’s asserted First Amendment
right was not clearly established.2 Recall that to overcome qualified immunity, Sevy must show
that (1) Barach violated his constitutional rights, and (2) his right was clearly established at the
time of the alleged violation. Jones, 947 F.3d at 913. A right is “clearly established” when the
alleged conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In other
words, the right is clearly established if someone in Barach’s position should reasonably have
known—based on existing law—that the conduct violated Sevy’s First Amendment rights. See
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).
But it’s not clear whether Sevy even had a viable First Amendment claim on his excessiveforce retaliation theory, let alone whether his First Amendment rights were clearly established
under existing law. For one, Graham v. Connor held that “all claims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” 490 U.S. 386, 395 (1989). Read
broadly, this could mean that all excessive-force claims must be evaluated under the Fourth
Amendment. Indeed, “[m]ultiple lower federal courts . . . have extended Graham to preclude First
Amendment claims based on alleged excessive force employed during an arrest.” Price v. Elder,
175 F. Supp. 3d 676, 679 (N.D. Miss. 2016) (collecting cases).
Barach makes the argument that Sevy’s First Amendment right was not violated. But we need not even reach this
issue because, under the same reasoning, we conclude that Sevy’s right was not clearly established. See McNeal v.
Kott, 590 F. App’x 566, 569 (6th Cir. 2014) (“One does not forfeit a qualified immunity defense by making arguments
that, if accepted, establish the defense.”). This issue requires us simply to look at existing law; we do not need to
resolve any factual disputes. That makes this the type of “pure question of law” over which we have jurisdiction. “In
determining the scope of our jurisdiction, we ‘separate an appellant’s reviewable challenges from its unreviewable.’”
Adams, 946 F.3d at 948 (quoting Diluzio v. Village of Yorkville, 796 F.3d 604, 610 (6th Cir. 2015)). We thus have
jurisdiction over this reviewable challenge, even though we lack jurisdiction over other parts of Barach’s appeal.
2
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Although the case law does not require a “case directly on point” for a right to be clearly
established, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Kisela, 138 S. Ct. at 1152 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)). Sevy has not pointed us to any Supreme Court or Sixth Circuit cases (nor are we aware
of any) establishing his right to recover—on a First Amendment retaliation theory—for excessive
force used in executing an arrest otherwise supported by probable cause. Nor has he established a
“consensus of cases of persuasive authority.” See Wilson v. Layne, 526 U.S. 603, 617 (1999). He
cites only two unpublished district court decisions. Two of these cases do not a consensus make.
See id. at 616–17. Therefore, Sevy’s First Amendment right was not clearly established, so Barach
is entitled to qualified immunity on that claim. See Pearson v. Callahan, 555 U.S. 223, 242 (2009)
(holding that courts can “determine the order of decisionmaking” in the qualified-immunity
analysis).
Judge Moore concludes otherwise, reasoning that Sevy’s right to protest was clearly
established, and a reasonable officer would have known not to use physical force in retaliation.
But this is not a case about physical force in isolation. Rather, the issue is whether the use of
excessive force in executing an arrest supported by probable cause can amount to a First
Amendment, rather than a Fourth Amendment, violation. This is at least an open question, see
Graham, 490 U.S. at 395, and existing precedents do not answer that question “beyond debate” in
Sevy’s favor, see Kisela, 138 S. Ct. at 1152. Thus, Sevy’s First Amendment right to recover under
this hybrid theory is not clearly established.
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IV. Conclusion
For these reasons, we DISMISS the appeal for lack of jurisdiction over the Fourth
Amendment excessive-force claims. We also hold that Barach is entitled to qualified immunity on
the First Amendment claim, and so we REVERSE the district court’s denial of summary judgment
to Barach on that claim.
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority that we lack jurisdiction to consider Defendant-Appellant Philip Barach’s
challenges to the district court’s denial of qualified immunity for Plaintiff-Appellee Anthony
Sevy’s Fourth Amendment excessive-force claims. I dissent from the majority regarding the
district court’s denial of qualified immunity for the First Amendment claim because the majority
misapplies our caselaw addressing what constitutes a clearly established right for qualified
immunity purposes.
Qualified immunity protects “government officials from liability for civil damages ‘unless
a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was “clearly established” at the time of the challenged conduct.’” Wood v. Moss,
572 U.S. 744, 757 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The critical
focus is whether a reasonable officer would have “had fair notice that [his] conduct was unlawful
. . . at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). The “contours” of the right must be
“sufficiently clear [so] that a reasonable official would understand that what he is doing violates
that right.” Guertin v. Michigan, 912 F.3d 907, 932 (6th Cir. 2019) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)), cert. denied, 140 S. Ct. 933 (2020). To demonstrate that a
right is clearly established, a plaintiff does not need to identify a case that is “on all fours” or
“directly on point,” a case in which we have addressed the “prior, ‘precise situation,’” or a case in
which we concluded that “the very action in question has previously been held unlawful.” Id.
(citations omitted). In other words, “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Importantly, we have reiterated the Supreme Court’s observation that “[t]he easiest cases don’t
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even arise,” meaning that plaintiffs are not penalized for failing to locate a closely analogous case
when the official’s conduct is beyond the pale. Guertin, 912 F.3d at 933 (quoting United States v.
Lanier, 520 U.S. 259, 271 (1997)); see also Lanier, 520 U.S. at 263, 271 (reversing the Sixth
Circuit and concluding that a judge would have been on notice that sexually assaulting employees
violated their constitutional rights).
Sevy’s First Amendment rights to protest and criticize government officials is clearly
established such that a reasonable officer would know that he could not use any force to retaliate
against an individual for the exercise of that speech. Ample precedent shows that Sevy has a First
Amendment right to protest, verbally and symbolically, the acts of government officials and to
criticize those officials—this is not a close question. See Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., Inc., 515 U.S. 557, 569 (1995) (symbolic speech); Cohen v. California, 403
U.S. 15, 26 (1971) (protest in a courthouse corridor); Greene v. Barber, 310 F.3d 889, 895 (6th
Cir. 2002) (utilizing crude language to criticize officers); Barrett v. Harrington, 130 F.3d 246, 264
(6th Cir. 1997) (criticizing public officials). Given the clarity of Sevy’s First Amendment rights,
a reasonable officer cannot claim that they would be surprised to learn that the use of physical
force in retaliation for the exercise of those First Amendment rights was a constitutional violation.
Moreover, the standard for whether an officer’s action amounted to retaliation was decided twenty
years ago in Thaddeus-X v. Blatter: whether the action “would ‘deter a person of ordinary
firmness’ from the exercise of the right at stake.” 175 F.3d 378, 396 (6th Cir. 1999) (en banc).
Officers are more than capable of predicting whether their actions would meet that standard in the
absence of a decision addressing identical action, particularly given the wide variety of conduct
we have assessed under that standard. See, e.g., Arnett v. Myers, 281 F.3d 552, 560 (6th Cir. 2002)
(concluding that the removal of duck blinds amounted to retaliatory action in the First Amendment
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context). In short, it should not take a previous case holding that officers may not choke
individuals in retaliation for their exercise of free speech, such as protest and public criticism of
officers, to conclude that Sevy’s rights were clearly established. This case is a prime example of
“the easiest cases don’t even arise.” Guertin, 912 F.3d at 933 (quoting Lanier, 520 U.S. at 271).
For these reasons, I concur in the majority opinion’s resolution of Barach’s appeal of the
district court’s denial of qualified immunity for Sevy’s Fourth Amendment claim, and I dissent
from the resolution of Barach’s appeal of the district court’s denial of qualified immunity for the
First Amendment retaliation claim.
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CHAD A. READLER, Circuit Judge, concurring in part and in the judgment.
Agreeing fully with the majority opinion’s resolution of Anthony Sevy’s First Amendment claim,
I write separately to address Officer Philip Barach’s challenge to Sevy’s Fourth Amendment claim.
Unlike the majority opinion, I would reach the merits of that challenge.
In characterizing our interlocutory jurisdiction over the denial of qualified immunity, we
sometimes say our mandate is to review law, but not facts. Leary v. Livingston County, 528 F.3d
438, 441 (6th Cir. 2008). Consider an appeal challenging the legal determination that the plaintiff’s
facts demonstrate a violation of a clearly established constitutional right, meaning the defendant is
not entitled to qualified immunity. Jones v. City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020).
These legal conclusions are the bread and butter of our interlocutory qualified immunity
jurisdiction, and they are reviewable in the ordinary course.
Compare that circumstance to an appeal challenging only the record compiled at summary
judgment, which must be viewed in the light most favorable to the non-moving party. See Fed R.
Civ. Proc. 56(c). We ordinarily will not resolve these factual disputes so long as the plaintiff’s
version of events has some support in the record. Scott v. Harris, 550 U.S. 372, 380 (2007). In
other words, we lack jurisdiction in this interlocutory posture over attacks aimed solely at the facts
established by the plaintiff. Johnson v. Jones, 515 U.S. 304, 313 (1995) (explaining that a
defendant may appeal the denial of qualified immunity only “to the extent that” the appeal “turns
on an issue of law”).
In reality, however, most arguments in this setting include features of both law and fact.
Take, for instance, a case in which a district court draws factual inferences in denying on legal
grounds at summary judgment a claim for qualified immunity. What part of that decision is
eligible for interlocutory review? We have sometimes said that any factual inferences are insulated
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from review, Romo v. Largen, 723 F.3d 670, 673–74 (6th Cir. 2015), yet we have acknowledged
that this approach may be at odds with Supreme Court precedent. See DiLuzio v. Village of
Yorkville, 796 F.3d 604, 609 (6th Cir. 2015) (acknowledging but declining to decide whether Romo
is inconsistent with Plumhoff v. Rickard, 572 U.S. 765, 777 (2014)); see also Romo, 723 F.3d at
678 (Sutton, J., concurring) (construing Supreme Court precedent to permit interlocutory review
of a district court’s factual inferences). And we have routinely performed at least a perfunctory
review of those factual inferences at summary judgment to ensure they are not “blatantly
contradicted by the record” such that “no reasonable jury could believe [them].” Scott, 550 U.S.
at 380. Otherwise, we risk working from a fictitious version of events in assessing a defendant’s
entitlement to qualified immunity. See DiLuzio, 796 F.3d at 609 (describing these often-implicit
conclusions by the district court as “legal aspect[s] of the district court’s factual determinations”
at summary judgment).
Equally true, even in cases where there are genuine disputes over material facts, we do not
dismiss the appeal on jurisdictional grounds merely because the defendant made some factual
arguments or used aspects of her own factual account in mounting a legal argument for qualified
immunity. Id. at 610 (citing Wenk v. O’Reilly, 783 F.3d 585, 599 (6th Cir. 2015)). Doing otherwise
is a disservice to the Court and the parties. After all, more expansive jurisdiction maximizes
qualified immunity protections for officials acting in good faith. It further guides and develops
the law surrounding the constitutional questions before us. And it focuses future proceedings by
identifying the controlling law and key disputes for trial. Barry v. O’Grady, 895 F.3d 440, 449
(6th Cir. 2018) (Sutton, J., dissenting).
2. All of this is to say that, at the very least, we must be careful on interlocutory appeal to
separate reviewable arguments from non-reviewable ones. DiLuzio, 796 F.3d at 610. Yet to my
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eye, the majority opinion has not followed this sound approach. Deeming all of Barach’s Fourth
Amendment arguments as turning on purely factual disputes, the majority opinion concludes that
we do not have jurisdiction over any of Barach’s challenges to the district court’s denial of
qualified immunity.
The majority opinion believes this result is required by Adams v. Blount County, 946 F.3d
940 (6th Cir. 2020). There, we seemed to suggest that a defendant must concede the plaintiff’s
version of events as a pre-requisite for our interlocutory jurisdiction. Id. at 948. But that
suggestion would be a considerable extension of Johnson—one that cuts squarely against the
common practice across the circuits, including this one. Johnson, of course, was the paradigmatic
example of a fact-based appeal—the defendant went so far as to concede any legal argument in
the event the appellate courts accepted the plaintiff’s version of events. 515 U.S. at 307–09. Not
so for Barach. He asserts, among other things, that the district court erred “in its application of the
legal standard” to Sevy’s version of events. That is, Barach contends that he employed reasonable
force in arresting Sevy, as measured by Graham v. Connor, 490 U.S. 386 (1989), even on Sevy’s
version of events. That bread-and-butter legal argument is one we should entertain.
The majority opinion nonetheless denies jurisdiction over that claim because factual
disputes are “crucial” to Barach’s appeal. Adams, 946 F.3d at 951. Facts, of course, are crucial to
every case. How crucial depends on context. Sometimes they are crucial because they are
outcome-determinative. That was the case in Johnson. Where a defendant concedes that adopting
the plaintiff’s version of the facts demonstrates the violation of a clearly established constitutional
right, the Court is left essentially with a factual dispute, making the facts crucial to the outcome.
See Johnson, 515 U.S. at 313–14.
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But in other cases, the facts are important, perhaps even crucial in a sense, yet leave for the
Court a legal issue appropriate for interlocutory resolution. Consider that in nearly every qualified
immunity appeal, the parties tell different stories. And each party’s view of the facts often bleeds
into her portrayal of the law. We in turn are left to resolve whether a clearly established
constitutional violation occurred based upon the plaintiff’s account of the facts, something the
defendant rarely if ever concedes. If this run-of-the-mill scenario constitutes a “crucial” factual
dispute that extinguishes our interlocutory jurisdiction, the Johnson exception would quickly
become the general rule.
Rather than dismissing Barach’s appeal for lack of jurisdiction, we should undertake the
traditional qualified immunity analysis. Accepting Adams’s instruction to determine whether a
factual dispute is “crucial,” we should ask whether the plaintiff’s version of events establishes the
violation of a clearly established constitutional right, another way of asking whether accepting the
plaintiff’s version of events is outcome-determinative (or “crucial”). If the defendant maintains
that adopting the plaintiff’s view of events is not outcome-determinative, as Barach does here, a
“pure question of law” remains for resolution. Adams, 946 F.3d at 948. I would therefore reach
the merits of Barach’s Graham argument.
3. Turning to that argument, to resolve whether a government actor is entitled to qualified
immunity, we undertake a two-part inquiry: (1) did a violation of a constitutional right occur, and,
if it did, (2) was that right clearly established at the time of the violation? Jones, 947 F.3d at 913.
At issue here is the Fourth Amendment’s prohibition against excessive force in making an arrest.
Whether Barach disobeyed a clear constitutional command in arresting Sevy is resolved by
considering the totality of the circumstances. Those circumstances include “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,
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and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396. We view the facts objectively “from the perspective of a reasonable
officer on the scene,” employing a “measure of deference to the officer’s on-the-spot judgment”
about the force necessary under the circumstances. Reich v. City of Elizabethtown, 945 F.3d 968,
978 (6th Cir. 2019); Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).
Accepting the district court’s view of the facts, Sevy prevails on all three Graham factors.
Start with the severity of the crime at issue, disorderly conduct. Under Michigan law, it is a minor
offense. York v. City of Detroit, 475 N.W.2d 346, 349 (Mich. 1991). Now the threat that Sevy
posed to Barach and Marshall. On the one hand, Sevy was younger than either officer. But on the
other, he was smaller, alone, and unarmed (save for a bag of pennies). On balance, those factors
arguably undermine a finding that Sevy posed a threat to the officers. See Solomon v. Auburn Hills
Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004) (holding that the court “must consider the size and
stature of the parties involved” in assessing the Graham threat factor). Finally, we consider
whether Sevy offered any resistance. All agree a heated exchanged occurred between Sevy,
Barach, and Marshall. All also agree Sevy swore loudly at the officers, drawing the attention of
court patrons. But Sevy contests that he refused lawful orders to leave the courthouse. To Sevy’s
mind, he could not leave until the clerk returned his parking ticket. And while Sevy did spin
around in the vestibule, he claims that maneuver came at the hands of Barach, who physically
turned Sevy. Though I have doubts about Sevy’s version of events, I do not see reversible error
in the inferences drawn by the district court.
All told, assuming the truth of Sevy’s record-supported account, Sevy was not actively
resisting the officers. It follows that a reasonable jury could find that Barach violated Sevy’s
clearly established Fourth Amendment right not to be subjected to a takedown maneuver while
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offering no resistance to an attempted arrest. Smith v. City of Troy, 874 F.3d 938, 945 (6th Cir.
2017). Sevy deserves the chance to make his case to a jury.
*
*
*
*
*
It is not our place to determine whether Sevy’s account is correct. But it is our place,
indeed our duty, to measure that account against the applicable legal standard. I would thus resolve
Barach’s appeal rather than dismiss it for purported jurisdictional defects.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY SEVY,
Plaintiff,
Case No. 17-13789
Honorable Laurie J. Michelson
Magistrate Judge Anthony P. Patti
v.
PHILIP BARACH and
HAROLD MARSHALL,
Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [45]
Anthony Sevy went to court to pay a $10 parking ticket. He tried to pay with his debit card.
The clerk told him that a $1.75 service fee applied to debit card transactions. Believing this to be
an outrageous fee, Sevy refused to pay and left.
To express his displeasure with the debit card fee, Sevy returned to the courthouse with
$10 in rolled pennies. But the clerk would not accept Sevy’s pennies. Sevy was again displeased.
He began to argue with the clerk, which attracted the attention of Court Security Officers Philip
Barach and Harold Marshall. Sevy was ultimately arrested after a struggle with Barach and
Marshall in the court’s vestibule. Moments later, another altercation took place in an elevator while
Barach and Marshall escorted Sevy to a holding cell. Sevy eventually pleaded no contest to a
charge of disturbing the peace in state court and paid a fine.
In time, Sevy sued Barach and Marshall. He alleged that they arrested him unlawfully, used
excessive force, and retaliated against him for protesting against the court’s payment policies.
Now, Barach and Marshall move for summary judgment on all of Sevy’s claims. Some survive,
some do not.
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I.
At around 12:30 pm on February 13, 2017, Anthony Sevy appeared at the 44th District
Court in Royal Oak, Michigan to pay a $10 parking ticket. (ECF No. 45-10, PageID.851, 862.)
Sevy tried to pay the ticket with his debit card. (ECF No. 45-4, PageID.698.) But the clerk, Sylvia
Mathis, told him that a $1.75 convenience fee would apply to the debit card transaction. (ECF No.
45-4, PageID.698–99.) Sevy “thought that was ridiculous,” declined to pay, and decided to leave.
(ECF No. 45-4, PageID.699.) But before he left, Sevy asked Mathis if the court would accept
change. (ECF No 45-4, PageID.700.) She said it could accept rolled coin. (ECF No. 45-10,
PageID.862.) Sevy briefly stopped at home and then proceeded to his bank, where he withdrew
$10 in rolled pennies. (ECF No. 45-4, PageID.701–2.)
Sevy’s return trip to the courthouse is the source of this suit. The return trip lasted about
five minutes and resulted in Sevy’s arrest. But neither Sevy nor the court security officers that
arrested him agree on exactly what happened. What follows are the parties’ versions, interposed
with the scene depicted by the court’s security cameras.
The security camera captured Sevy’s return to the court around 1:07 pm. (ECF No. 45-6.)
Philip Barach and Harold Marshall, court security officers, noticed an anomaly when they x-rayed
Sevy’s bag. (ECF No. 45-2, PageID.520–21.) Barach searched Sevy’s bag and discovered his
rolled pennies but no contraband. (Id.) Barach recalls warning Sevy that the court would not accept
payment in pennies, to which he remembers Sevy replying, “[t]hey’ll fucking take ‘em because
they wouldn’t take my credit card.” (ECF No. 45-2, PageID.521.) Sevy also remembers discussing
the pennies with Barach. (ECF No. 45-4, PageID.702.)
Sevy proceeded to the counter at around 1:08. (ECF No. 45-4, PageID.702–3; ECF No. 456.) Mathis, who had told Sevy about the debit card fee, was still there. Sevy gave Mathis his
2
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parking ticket and tried to pay with his pennies, but Mathis refused to accept them. (ECF No. 454, PageID.703.) She explained that the pennies Sevy slid through the payment slot were not
properly identifiable. (ECF No. 45-10, PageID.862.) Within a minute, Marshall joined Mathis
behind the window that separated her from Sevy. (ECF No. 45-6.)
Sevy continued to speak with Mathis. Marshall describes the conversation between Sevy
and Mathis as “an argument” but notes that Sevy never did anything physically aggressive. (ECF
No. 45-3, PageID.594.) And though Marshall recalls other employees being startled or concerned
by the dispute between Sevy and Mathis, he admits “it doesn’t appear” from security footage that
two nearby employees were concerned. (ECF No. 45-3, PageID.595.)
Marshall returned to the lobby from behind the counter between 1:09 and 1:10. (ECF No.
45-6.) He told Sevy that the court did not have to accept coin as payment. (ECF No. 45-3,
PageID.596.) And at 1:09:40, surveillance footage shows both Sevy and Marshall pointing toward
a sign explaining that, under Mich. Comp. Laws § 21.153, the court is not required to accept
payment in coin unless the coins are pure gold or silver. (ECF No. 45-3, PageID.587; ECF No. 456.) For a moment, the trio argued about whether the court was required to accept coin, until
Marshall directed Sevy to “get out.” (ECF No. 45-3, PageID.587.) Marshall describes Sevy as
“standing his ground” but not “physically squaring off.” (ECF No. 45-3, PageID.588.)
Barach approached the counter around 1:10 pm. (ECF No. 45-6.) He listened to Sevy’s
complaints and advised him to mail in the fine. (ECF No. 45-2, PageID.524–25.) Barach says Sevy
told him, “[y]ou know what, [Mathis] can suck my dick, [Marshall] can suck my dick, and you
can suck my dick.” (ECF No. 45-2, PageID.526.) Mathis, too, heard Sevy “yelling ‘suck’ among
other things in a very loud voice.” (ECF No. 45-10, PageID.862.) Eventually, Barach instructed
Sevy “[t]hat’s enough, pal. Time to go.” (ECF No. 45-2, PageID.525.)
3
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Sevy’s recollection differs. Once Sevy realized that the clerk would not accept his change,
he asked for his ticket back. (ECF No. 45-4, PageID.704.) He thinks it took Mathis between fifteen
seconds and a few minutes to return the ticket. (ECF No. 45-4, PageID.704–5.) During that time,
Sevy was “upset” and “going back and forth with the guard.” (ECF No. 45-4, PageID.705.) Sevy
describes one of the guards as “very aggressive” and says the guard called him a “punk” or “punk
bitch.” (Id.) And Sevy remembers exclaiming, “[t]his is ridiculous, I’m paying with legal tender,
call the police.” (Id.)
The court’s security camera captured the physical interactions between Barach and Sevy
at the counter. At 1:10:02, Barach reached in front of Sevy to grab a bag or other object. (ECF No.
45-3, PageID.597; ECF No. 45-6.) Barach gestured for Sevy to leave at 1:10:05. (ECF No. 45-3,
PageID.598; ECF No. 45-6.) Less than ten seconds later, Sevy turned to leave. (ECF No. 45-6.)
Barach and Sevy disagree about what took place next.
In Barach’s version, Sevy was never going to leave. Barach watched Sevy walk straight to
the vestibule door. (ECF No. 45-2, PageID.539.) When Sevy reached it, he “froze” while “making
abusive statements.” (ECF No. 45-2, PageID.538–539.) So Barach put his left arm “towards
[Sevy’s] spine” to “give him a little nudge” and “guide him out the door.” (ECF No. 45-2,
PageID.539.) But Sevy “twisted around” and “knocked [Barach’s] left hand down.” (ECF No. 452, PageID.540.) And then Sevy assumed a “defensive . . . combative stance.” (ECF No. 45-2,
PageID.552.) Seeing Sevy’s “aggressive stance,” Barach “felt [Sevy] was not going to leave” and
decided to arrest him for disorderly conduct. (ECF No. 45-2, PageID.542.) To perform the arrest,
Barach “grabb[ed] for [Sevy’s] jacket or his collar” to “throw him to the ground.” (ECF No. 45-2,
PageID.543.) Barach “attempted to throw [Sevy] down,” but Sevy “kept pulling away.” (ECF No.
45-2, PageID.548.) Once Sevy was on the ground, Barach and Marshall handcuffed him. (Id.)
4
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Sevy tells a different version. According to Sevy, he was leaving the courthouse when
Barach grabbed his arm and neck. (ECF No. 45-4, PageID.709, 712.) Sevy “[i]nitially” resisted
and “tried to get [his] grounds,” but Barach “thr[ew him] to the ground.” (ECF No. 45-4,
PageID.706, 710, 713.) While Sevy lay face down on the ground, Barach held the “[b]ack and
side” of his neck and choked him. (ECF No. 45-4, PageID.714.) Sevy asked “[w]hy are you
choking me?” (ECF No. 45-4, PageID.715.) Between five and ten seconds after Barach threw Sevy
down, Marshall arrived. (ECF No. 45-4, PageID.713.) Marshall helped Barach hold Sevy down,
and Barach handcuffed Sevy. (ECF No. 45-4, PageID.714–15.) Sevy soon lost consciousness.
(ECF No. 45-4, PageID.715.) Within a minute or two, three or four Royal Oak police officers
appeared in the vestibule. (ECF No. 45-4, PageID.716.) Eventually, more arrived. (ECF No. 45-4,
PageID.718.) Royal Oak police officers picked Sevy up and took him to the elevator. (ECF No.
45-4, PageID.717–18.)
The security footage largely squares with Sevy’s version. The footage shows Sevy leaving
the counter and walking across the lobby towards the exit, stopping briefly to pick up a piece of
paper he dropped. (ECF No. 45-3, PageID.599; ECF No. 45-6.) He reached the vestibule door and
started to exit. (ECF No. 45-6) At that moment, Barach pushed Sevy through the vestibule door,
and Sevy spun around. (Id.) Barach then placed his left hand on Sevy’s neck, pushed Sevy
backwards towards the outer door, and tried to take him to the ground. (Id.) Marshall soon entered
the vestibule. (Id.) With Marshall’s help, Barach pushed Sevy down. (Id.) The officers then
handcuffed Sevy. (Id.) The entire episode lasted less than a minute.
Soon after handcuffing Sevy, Barach and Marshall had Sevy standing up and were taking
him back inside the lobby from the vestibule. (Id.) Barach guided Sevy towards the elevator. (Id.)
The three entered the elevator at 1:11:28. (Id.)
5
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Another altercation occurred inside the elevator. Like the prior encounter, the parties tell
different stories; unlike the prior encounter, there is no video footage. According to Sevy, someone
“threw [him] to the ground” in the elevator, and he hit his head on the side of the elevator in the
process. (ECF No. 45-4, PageID.718.) However, Sevy does not know which officer was
responsible. (Id.) Yet Barach remembers throwing Sevy to the ground. (ECF No. 45-2,
PageID.530.) Barach says he did so because Sevy “leaned up back and slammed his head against
the bridge of [Barach’s] nose” for “no reason.” (ECF No. 45-2, PageID.530, 550.) However, a
police officer who interviewed Barach right after the incident did not observe any injuries on
Barach’s face. (ECF No. 45-10, PageID.852.) For his part, Marshall was in the elevator as well,
and remembers Sevy was “using his body as leverage” to resist the officers’ attempts to move him.
(ECF No. 45-3, PageID.613.) But Marshall did not see what caused Barach to “put [Sevy] on his
butt” because his eyes were “focused on [Sevy’s] feet” to prevent being kicked. (ECF No. 45-3,
PageID.611–12.)
Viewing the security camera footage from outside the elevator, others in the lobby realized
there was a problem inside the elevator. At 1:11:33.50, three individuals in the lobby turned their
heads towards the elevator. (ECF No. 45-6.) Two of them rushed towards it and opened the
elevator door. (Id.) One entered at 1:11:39.26 while the other stayed in the lobby. (Id.) Seconds
later, another court security officer and one uniformed police officer stepped onto the elevator.
(Id.) And a few minutes later, additional police officers arrived in the lobby. (Id.)
Soon after the elevator ride, Sevy’s involvement with Barach and Marshall ceased. Sevy
was placed in a holding cell, searched, and interviewed. (ECF No. 45-4, PageID.707.) After about
an hour, Sevy was released. (ECF No. 45-4, PageID.707–8.) However, his legal troubles
continued.
6
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A few weeks later, a 44th District Court judge issued a warrant for Sevy’s arrest on charges
of assaulting or obstructing a public officer, Mich. Comp. Laws § 750.479, and disturbing the
peace, Mich. Comp. Laws § 750.170. (ECF No. 45-12, PageID.876–77.) The day after Sevy
learned about the warrant, he turned himself in at the 44th District Court and was released on bond.
(ECF No. 45-4, PageID.741.) Eventually, the prosecutor dismissed the charge of assaulting or
obstructing a public officer. (ECF No. 45-13, PageID.879) But Sevy pleaded no contest to the
charge of disturbing the peace and paid a fine. (ECF No. 45-13, PageID.881.)
Aggrieved by his ordeal, Sevy sued Barach and Marshall under 42 U.S.C. § 1983. Now,
Barach and Marshall move for summary judgment on all counts.
II.
Summary judgment is appropriate when “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). To evaluate a
motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). But if a videotape shows what happened, then the Court must view “the facts in the
light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007).
III.
Sevy brings several claims against Barach and Marshall. Sevy says the officers violated his
Fourth Amendment rights by using excessive force to make an unlawful arrest. And Sevy alleges
the officers used force in retaliation for Sevy’s protest against the court’s payment policies,
violating the First Amendment.
In moving for summary judgment, Barach and Marshall say three defenses entitle them to
prevail. One, Sevy abandoned his unlawful arrest claim. Two, Heck v. Humphrey bars Sevy from
7
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recovering on the unlawful arrest and retaliation claims. And three, qualified immunity shields the
officers from liability.
A.
Consider, first, abandonment. Barach and Marshall think Sevy’s unlawful arrest claim fails
as a matter of law because, “[b]y virtue of [Sevy’s no contest] plea, [he] has acknowledged that
the Defendants had probable cause to arrest him.” (ECF No. 45, PageID.486–488.) And thus, Heck
applies. (Id.) The officers say Sevy, in his response, did not address these arguments. (ECF No.
52, PageID.1310.) So they think Sevy abandoned his unlawful arrest claim. (Id.)
A plaintiff abandons a claim if the defendant moves for summary judgment on it and the
plaintiff fails to address it in his response. See, e.g., Brown v. VHS of Mich., Inc., 545 F. App’x
368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir.
2011); Hamilton Cty. Bd. of Comm’rs v. Nat’l Football League, 491 F.3d 310, 319–20 (6th Cir.
2007).
Sevy abandoned his unlawful arrest claim because he failed to respond to Barach and
Marshall’s arguments in favor of summary judgment. True, Sevy’s response once describes his
arrest as “unlawful.” (ECF No. 50, PageID.949.) But even there Sevy avoids any substance of the
officers’ arguments explaining why summary judgment on the unlawful arrest claims is proper.
The officers insist Heck and its principles bar Sevy’s unlawful arrest claim. (ECF No. 45,
PageID.486–488.) And the officers cite both the facts and law showing why they prevail. (Id.)
Tellingly, Sevy does nothing to rebut the officers’ Heck argument. But he does contest whether
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Heck applies to his retaliation claim. (Compare ECF No. 45, PageID.488–489 with ECF No. 50,
PageID.963.) Thus, Sevy abandoned his unlawful arrest claim against both Barach and Marshall.1
B.
Barach and Marshall argue Sevy’s retaliation claim fails for a different reason: Heck v.
Humphrey, 512 U.S. 477 (1994).
Under Heck, a person who has been convicted or sentenced cannot sue under § 1983 if
success would “necessarily imply the invalidity of his conviction or sentence.” 512 U.S. at 487;
see also Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006) (explaining that Heck prevents a
plaintiff from bringing a claim if success would negate an element of the underlying offense),
abrogated on other grounds by Wallace v. Kato, 549 U.S. 384 (2007). The Supreme Court
explained that Heck’s rule promotes “finality and consistency” by limiting “opportunities for
collateral attack” on criminal judgments. 512 U.S. at 485. However, a person can sue under § 1983
if their suit and conviction or sentence “are consistent with one another,” even if the civil and
criminal cases arise from the same set of facts. Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir.
2010). This makes sense because a challenge that is consistent with a conviction or sentence cannot
be used to undermine or mount a collateral attack on the criminal judgment.
And in the Sixth Circuit, Heck does not apply to civil plaintiffs who were “precluded as a
matter of law from seeking habeas redress.” Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d
592, 601 (6th Cir. 2007) (internal quotations omitted). Thus, a civil plaintiff who paid a fine for a
1
Barach and Marshall also say Sevy abandoned his claims against Marshall. (ECF No. 52,
PageID.1310.) But Sevy’s response referenced Marshall’s personal conduct repeatedly. (See, e.g.,
ECF No. 50, PageID.943, 946, 948, 959, 961.) The brief claims “Marshall join[ed] in and the two
Defendants slam[med] Mr. Sevy to the ground and handcuff[ed] him.” (ECF No. 50, PageID.948.)
Because Sevy expressly sought relief against Marshall throughout his response, he did not abandon
his excessive force or retaliation claims against Marshall. See Am. Broad. Co. v. Blackwell, 479
F. Supp. 2d 719, 733 (S.D. Ohio 2006).
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building code violation was not Heck barred from challenging the city’s actions, regardless of the
violation, because the plaintiff was “never ‘in custody’ and was never eligible for habeas review.”
Embassy Realty Invs., LLC v. City of Cleveland, 877 F. Supp. 2d 564, 575 (N.D. Ohio 2012)
(internal quotations omitted).
In this case, Sevy’s retaliation claim clears any Heck bar. For one, Sevy’s First Amendment
retaliation claim is consistent with his no contest plea. Sevy says Barach and Marshall used force
against him because of his protected speech, not that they arrested him for it (or that he was
eventually charged and convicted of a minor offense as a pretext). (See ECF No. 50, PageID.960.)
Thus, because Sevy might have been both lawfully arrested for disturbing the peace and yet
unlawfully subjected to force because of his speech, his First Amendment retaliation claim is
consistent with his conviction. In addition, Sevy could not seek habeas review after he pleaded no
contest and paid a fine because he was never in custody and so was precluded from challenging
his conviction by way of a petition for a writ of habeas corpus. Thus, Heck does not bar his § 1983
claim for First Amendment retaliation.
C.
Next, Barach and Marshall say qualified immunity defeats Sevy’s remaining claims. An
official enjoys qualified immunity if he or she “reasonably believe[d] that his or her conduct
complie[d] with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009). Qualified immunity is
designed both to protect from liability those officials who perform their duties reasonably and to
allow the public to hold irresponsible officials accountable. Id. at 231.
Officials are entitled to qualified immunity “unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’”
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S.
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658, 664 (2012)). A right is clearly established if it was “sufficiently clear” at the time of the
officer’s conduct such that every “reasonable official would understand that what he is doing” is
unlawful. Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). And precedent is
“sufficiently clear” if “every reasonable official would interpret it to establish the particular rule
the plaintiff seeks to apply” in the “particular circumstances before him.” Id. at 590. But “a case
directly on point” is not required. Id. (quoting al-Kidd, 563 U.S at 741.) Courts can decide which
prong to apply first “in light of the circumstances” of each case. Pearson, 555 U.S. at 236.
To decide whether Barach and Marshall are entitled to qualified immunity, the Court must
accept Sevy’s version. See Saucier v. Katz, 533 U.S. 194, 201 (2001). So at this point, Sevy enjoys
“the benefit of all reasonable factual inferences from the record,” and the Court decides “only
whether the officers are entitled to judgment as a matter of law.” Krause v. Jones, 765 F.3d 675,
679 (6th Cir. 2014).
1.
The vestibule incident. The Fourth Amendment protects citizens against officers’ use of
excessive force. Roell v. Hamilton Cty., Ohio/Hamilton Cty. Bd. of Cty. Comm’rs, 870 F.3d 471,
480 (6th Cir. 2017). When analyzing excessive force claims, “the question is whether the officers’
actions are objectively reasonable in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989)
(internal quotation omitted). And whether the force used during a seizure is objectively reasonable
“depends on the totality of the circumstances, including 1) the severity of the crime, 2) whether
the suspect poses an immediate threat to the safety of the officers or others, and 3) whether he is
actively resisting arrest or attempting to evade arrest by flight.” Ciminillo v. Streicher, 434 F.3d
461, 467 (6th Cir. 2006) (citing Graham, 490 U.S. at 396).
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Barach’s Use of Force. In this case, taking the facts in the light most favorable to Sevy, all
Graham factors weigh against Barach.
First, Sevy’s crime was minor. He pleaded no contest to a misdemeanor—disturbing a
lawful meeting in violation of Mich. Comp. Laws § 750.170. (ECF No. 45-13, PageID.879.)
Offenses like disturbing the peace are generally not serious enough to justify the use of substantial
force. See, e.g., Goodwin v. City of Painesville, 781 F.3d 314, 322 (6th Cir. 2015) (holding that a
jury could find that disorderly conduct under Tennessee law is not a serious offense when deciding
whether an officer used excessive force); Carpenter v. Bowling, 276 F. App’x 423, 426 (6th Cir.
2008) (determining that an officer must use relatively little force to make an arrest for disorderly
conduct in Ohio because it is neither violent nor serious).
Second, on Sevy’s version he posed little to no threat. Barach and Marshall outnumbered
Sevy. They were both taller than him. (ECF No. 45-4, PageID.711.) Barach knew Sevy was
unarmed because he screened Sevy for weapons when Sevy entered the courthouse. (See ECF No.
45-3, PageID.582.) Sevy was not physically aggressive at the counter. (See ECF No. 45-3,
PageID.589–91) Nearby bystanders did not appear concerned. (See ECF No. 45-3, PageID.594–
95.) And nothing in the video shows Sevy placing the officers in any real danger. (See ECF No.
45-6; ECF No. 45-7.) Indeed, the video shows Sevy walking toward the courthouse exist—
consistent with Barach’s instruction to leave—in the moments before Barach first placed his hand
on Sevy. (See ECF No. 45-7.) So given Sevy’s testimony, plus the video, Sevy posed little threat.
Third, Sevy was not actively resisting before Barach took him down. Active resistance
requires “physically struggling with, threatening, or disobeying officers.” Rudlaff v. Gillispie, 791
F.3d 638, 641 (6th Cir. 2015) (quoting Cockrell v. City of Cincinnati, 468 F. App’x 491, 495 (6th
Cir. 2012)). It does not include “being compliant” or “having done nothing to resist.” Id. (internal
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quotations omitted). And verbal hostility constitutes active resistance only if it is “the final straw
in a series of consciously-resistive acts,” Goodwin, 781 F.3d at 326 (internal quotations omitted),
or otherwise paired with “something more” like noncompliance, Eldridge v. City of Warren, 533
F. App’x 529, 535 (6th Cir. 2013).
In this case, Sevy was complying with the officers’ instructions when Barach used force.
Sevy does admit to a verbal back and forth with the officers at the counter. (ECF No. 45,
PageID.705.) So the officers told him “you’ve got to leave.” (ECF No. 45-4, PageID.704.)
Crucially, Sevy says he “proceeded to leave” and “walk[ed] out the door” as soon as the clerk
returned his ticket. (ECF No. 45-4, PageID.706.) And the security camera confirms as much. The
video shows Sevy leaving immediately after a brief verbal exchange with the officers. (ECF No.
45-6.) Only as Sevy is about to open the vestibule door did Barach place his hand on Sevy’s
shoulder. (ECF No. 45-7.) At that moment, Sevy stopped and turned around. (Id.) Then Barach
started to push Sevy out of the courthouse and take him down. (Id.) In the context of Sevy’s
compliance with the officers’ instructions, Sevy’s verbal jabs do not constitute active resistance.
Strongest for Barach is that Sevy admits he “[i]nitially” resisted the takedown maneuver.
(ECF No. 45-4, PageID.713.) But Sevy’s admitted resistance happened only after he was “getting
thrown around like an animal.” (Id.) So Sevy did not resist prior to Barach’s use of force. See
Lubelan, 476 F.3d at 406 (instructing courts to “view excessive force claims in segments”). And
even if Sevy tried to “get [his bearings]” during the arrest (ECF No. 45-4, PageID.710), the video
does not show that Sevy resisted any arrest. (ECF No. 45-7). Thus, on Sevy’s version, corroborated
by video, Sevy was, at most, a passive resister.
Finally, Barach pushes back on Sevy’s version of events. Barach points to his testimony in
the record, coupled with the opinion of a defense expert who opined that Sevy was never going
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leave, to bolster Barach’s speculation that Sevy was never going to comply with Barach’s
instructions. (See ECF No. 45, PageID.481.) But at this stage, the Court accepts Sevy’s version as
true. See See v. City of Elyria, 502 F.3d 484, 489–90 (6th Cir. 2007). So Barach’s version of events
does not alter the result.
Altogether, Barach’s use of force against a passively resisting suspect points to a
constitutional violation. Drawing all reasonable inferences in Sevy’s favor, his crime was minor,
he posed no threat, and his verbal hostility, absent any other evidence of resistance, did not rise to
the level of active resistance. And yet, Barach applied so much force that Sevy lost consciousness
and defecated in his pants. (ECF No. 45-4, PageID.706; ECF No. 50-6, PageID.1297.) So on
Sevy’s version of the facts, Barach’s conduct was objectively unreasonable.
That leaves the clearly established prong. Sevy was a nonviolent, passively resisting
suspect. At the time, Sixth Circuit precedent clearly established his right “to be free from
unnecessary pain knowingly inflicted during an arrest.” Kent v. Oakland Cty., 810 F.3d 384 (2016);
St. John v. Hickey, 411 F.3d 762, 774 (6th Cir. 2005), abrogated on other grounds by Marvin v.
City of Taylor, 509 F.3d 234, 246 n.6 (6th Cir. 2007). So every reasonable officer would have
known not to use a takedown maneuver, see McCaig v. Raber, 515 F. App’x 551, 555–56 (6th Cir.
2013), or a chokehold, see Griffith v. Coburn, 473 F.3d 650, 659–60 (6th Cir. 2007), on him. And
yet Sevy says Barach took him down and choked him. (ECF No. 45-4, PageID.706, 710.) The
security footage and even (to an extent) Barach’s testimony is consistent with Sevy’s account. (See
ECF No. 45-2, PageID.544, 548; ECF No. 45-7.) Thus, at the time the events occurred, Barach’s
conduct violated clearly established Sixth Circuit precedent. See, e.g., Oliver v. Greene, 613 F.
App’x 455, 459 (6th Cir. 2015) (affirming denial of qualified immunity to defendant prison guard
where the video did not blatantly contradict the plaintiff’s claim that he did not create a threat and
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that the defendant therefore “needlessly injured him by way of excessive force when he took him
to the ground, choked him, and repeatedly punched him in the face.”).
In sum, Barach is not entitled to qualified immunity as a matter of law.
Marshall’s Use of Force. Marshall, however, is entitled to qualified immunity. There is “a
de minimis level of [force] with which the Constitution is not concerned.” Hanson v. Madison Cty.
Det. Ctr., 736 F. App’x 521, 530 (6th Cir. 2018) (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.21
(1979)). So “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.” Id. (quoting Graham, 490 U.S. at 396). Here,
Sevy alleges only that Marshall “join[ed] in and the two Defendants slam[med] Mr. Sevy to the
ground and handcuff[ed] him.” (ECF No. 50, PageID.948.) But the security footage shows that
Marshall’s push—the only possible basis for Sevy’s use of the word “slam”—barely contacted
Sevy and lasted mere seconds (ECF No. 45-7). See id. (reasoning that a “split-second” push was
de minimis); see also Leary v. Livingston Cty., 528 F.3d 438, 443 (6th Cir. 2008) (finding that an
officer’s use of force was de minimis because the plaintiff “did not suffer any objectively verifiable
injury”). And Sevy does not even remember it; he says Marshall only got involved “[w]hen I’m
on the ground.” (ECF No. 45-4, PageID.712.) On this record, Marshall’s use of force was de
minimis.
2.
The elevator incident. Sevy claims Barach used excessive force against him in the elevator.
A pre-trial detainee has a Fourth Amendment right to be free of “unprovoked and unnecessary
blow[s].” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 538–39 (6th Cir. 2015) (quoting McDowell v.
Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)). For example, shoving a nonviolent, restrained
detainee “so that he fell and hit the wall and cement floor” violates the detainee’s clearly
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established Fourth Amendment rights. Id. at 539; see also Phelps v. Coy, 286 F.3d 295, 301–2 (6th
Cir. 2002).
Sevy’s version of events is murky. Sevy remembers someone, possibly Barach, possibly
Marshall, possibly Royal Oak Police Officers, leading him into an elevator. (ECF No. 45-4,
PageID.717.) Inside the elevator, Sevy remembers “four to seven police officers” present,
potentially including Barach and Marshall. (ECF No. 45-4, PageID.718.) Next thing he knew,
someone threw him to the ground, threw his head against the wall, and told him to “chill out.” (Id.)
Eventually, someone picked him up by his handcuffs and led him out of the elevator. (ECF No.
45-4, PageID.719.) Sevy thinks the force could have been applied by Barach, Marshall, both, or
Royal Oak Police officers—he cannot recall. (Id.)
Barach, however, has a better memory of the elevator ride. Barach says he “threw [Sevy]
back on the ground.” (ECF No. 45-2, PageID.530.) But Barach says he only did so after Sevy
“leaned up back and slammed his head against the bridge of my nose.” (Id.) Marshall was also in
the elevator and remembers Barach taking Sevy to the ground, but Marshall did not see if Sevy
head-butted Barach. (See ECF No. 45-3, PageID.610–611.)
In short, credit Barach’s account and qualified immunity is appropriate; credit Sevy and it
is not. That is because Barach admits he threw Sevy to the ground, Sevy says he was thrown down
without provocation, there is no video footage of the elevator’s interior, and Marshall claims not
to have seen the entire exchange. Thus, on the present record, it is not possible to discern whether
Sevy surrendered in the elevator without resistance, or whether Sevy fought back as Barach
suggests. Moreover, Sevy’s lack of recall about which officer threw him down does not shield
Barach from liability. See Fazica v. Jordan, 926 F.3d 283, 291–92 (2019). Because the facts that
determine qualified immunity require a credibility determination, a jury must decide whether
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Barach is entitled to qualified immunity. See Baynes v. Cleland, 799 F.3d 600, 610 (6th Cir. 2015);
Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007).
3.
The retaliation claim. Barach and Marshall also insist qualified immunity shields them
from liability on Sevy’s retaliation claim. Consider first whether the right in question was clearly
established. Sevy says he had a clearly established right to protest the debit card fee and criticize
court policies and personnel without being subjected to the officers’ use of a chokehold and
takedown maneuver.
The right “to criticize public officials is well-established and supported by ample case law.”
McCurdy v. Montgomery Cty., Ohio, 240 F.3d 512, 520 (6th Cir. 2001) (quoting Berrett v.
Harrington, 130 F.3d 246, 264 (6th Cir. 1997)), abrogated on other grounds by Barnes v. Wright,
449 F.3d 709 (6th Cir. 2006). So retaliation against an individual for criticizing public officials
violates the individual’s clearly established rights. See id.; Kennedy v. City of Villa Hills, Ky., 635
F.3d 210, 219 (6th Cir. 2011) (finding that the “right to be free from retaliatory arrest after insulting
an officer was clearly established”); see also Cook v. Greenleaf Twp., No. 16-cv-14060, 2018 WL
2219642, at *6–7 (E.D. Mich. May 15, 2018) (denying qualified immunity when “a citizen was
physically assaulted after making comments critical of public officials” because the officers were
“on notice that assaulting individuals for exercising their First Amendment rights is clearly
unconstitutional”).
Moreover, Sevy has a clearly established right to protest public policies in the courthouse.
See Cohen v. California¸ 403 U.S. 15, 26 (1971). And he has a clearly established right to make
his protest using symbolic speech. See Hurley v. Irish-American Gay, Lesbian, and Bisexual Grp.
of Bos., 515 U.S. 557, 569 (1995). For his symbolic speech to receive First Amendment protection,
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Sevy must carry a slight burden to show that his symbolism conveyed “a particularized message”
likely to be understood by those who viewed it. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d
381, 388 (6th Cir. 2005) (citing Spence v. State of Washington, 418 U.S. 405, 411 (1974) (per
curiam)).
Sevy says he “symbolically protested the 17.5% service . . . fee by returning with $10 in
rolled pennies.” (ECF No. 50, PageID.959.) And the record offers enough evidence to show Barach
and Marshall received the message. Marshall met Sevy during Sevy’s first visit to the courthouse
and recalls that Sevy was “angry because he didn’t want to pay a service fee with a credit card.”
(ECF No. 45-3, PageID.581.) When Sevy returned to the courthouse, Barach noticed the pennies.
(ECF No. 45-2, PageID.521.) Barach then advised Sevy that the court would not accept them. (Id.)
Sevy replied “[t]hey’ll fucking take ‘em because they wouldn’t take my credit card.” (Id.) Sevy
also yelled about his “right” to pay in coin, and Marshall recalled Sevy referencing the
“Constitution” during his time at the counter. (ECF No. 45-3, PageID.585, 636.) Added up, the
evidence allows for the inference that Sevy’s attempt to pay his ticket with $10 in rolled pennies
conveyed a particularized criticism of court policy that the officers likely understood. So Sevy’s
First Amendment rights were clearly established.
Turn next to whether Sevy’s Constitutional right was violated. To show a violation of his
First Amendment rights, Sevy must establish that (1) he “engaged in protected conduct;” (2) an
“adverse action was taken against [him] . . . [,]” and (3) “there is a causal connection between
elements one and two—that is, the adverse action was motivated at least in part by [his] protected
conduct.” Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) (quoting Thaddeus–X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
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Every reasonable officer would know Sevy engaged in protected conduct. As just
mentioned, Sevy’s protest against the debit card fee and his verbal attacks against the officers are
protected by the First Amendment. The officers disagree. They say qualified immunity is
appropriate, even on Sevy’s version of events, because Sevy’s day in court was light on civic
protest and heavy on disorderly conduct.
True, the First Amendment does not protect all speech. For example, the First Amendment
does not protect “[f]ighting words” that “by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” Barnes, 449 F.3d at 717 (quoting Greene v. Barber, 310 F.3d 889,
896 (6th Cir. 2002)). But individuals have the right “verbally to oppose or challenge police action.”
Id. (quoting City of Houston, Tex. v. Hill, 482 U.S. 451, 462–63 (1987)). And they do not have to
use the Queen’s English when they do so. See Lewis v. City of New Orleans, 415 U.S. 130, 134
(1974); Cohen, 403 U.S. at 19, 26; Hagedorn v. Cattani, 715 F. App’x 499, 506 (6th Cir. 2017)
(noting that an individual has the right to call a police officer an “asshole” and an “idiot”).
Moreover, “a properly trained officer may reasonably be expected” to know the difference between
fighting words and protected speech and respond appropriately. Hill, 482 U.S. at 462 (quoting
Lewis, 415 U.S. at 135 (Powell, J., concurring)).
Barach and Marshall should have known that Sevy’s verbal “back and forth” with court
personnel included protected speech. (ECF No. 45, PageID.705.) The evidence reasonably
supports the inference that the back and forth was part of Sevy’s protest over the debit card fee
and court policies. Sevy said it was “ridiculous” that the court refused his coins because he was
“paying with legal tender.” (ECF No. 45-4, PageID.705.) And Marshall remembers Sevy saying
“[y]ou gotta take it, it’s my right, this is bullshit.” (ECF No. 45-3, PageID.585–86.) In giving voice
to his criticism, Sevy was free to employ profanity to articulate his message.
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Admittedly, Sevy may also have engaged in disorderly conduct. That is not protected by
the First Amendment. See, e.g., Hartman v. Thompson, — F.3d —, No. 18-5220, 2019 WL
3297198, at *8 n.5 (6th Cir. July 23, 2019); Hagedorn, 715 F. App’x at 506; Swiecicki, 463 F.3d
at 499. But Sevy no longer challenges the lawfulness of his arrest, nor does he argue that he was
arrested in retaliation for his protest. Instead, his retaliation claim depends on the officers’ use of
force. Thus, his claim survives even if Sevy was disorderly at some point during his visit.
Second, Sevy needs to show that the officers took an adverse action against him that would
“deter a person of ordinary firmness” from engaging in protected conduct. Maben, 887 F.3d at 266
(quoting Thaddeus–X, 175 F.3d at 396). Sevy points to the officers’ use of excessive force. And
excessive force would easily deter a person of ordinary firmness from criticizing or protesting the
court, especially since something less intrusive, like a mere traffic stop, also counts as an adverse
action. See Cruise-Gulyas, 918 F.3d at 497 (citing Center for Bio-Ethical Reform, Inc. v. City of
Springboro, 477 F.3d 807, 822, 824 (6th Cir. 2007)) (finding that at least as far back as 2007 a
seizure counts as an adverse action). To reiterate, taking Sevy’s version as true—and his version
is consistent with the video—Sevy was “grabbed and forcefully thrown to the ground,”
“assaulted,” and “strangled unconscious” by Barach. (ECF No. 45-4, PageID.706, 708.) It is also
not disputed that Sevy defecated during his arrest. (See ECF No. 50-6, PageID.1296.) So Barach’s
force counts as an adverse action.
However, Sevy cannot establish that Marshall took an adverse action against him. Sevy’s
briefing defined the adverse action as Sevy being “choked, wrestled around the vestibule, and
slammed to the ground.” (ECF No. 50, PageID.960.) But as explained above, Marshall’s role in
the takedown and chokehold was de minimis. Indeed, Sevy does not remember that Marshall was
involved at all—even after watching the video. (See ECF No. 45-4, PageID.712.) So the minimal
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force Marshall applied would not deter a person of ordinary firmness from engaging in protected
conduct. Thus, Sevy cannot establish a First Amendment claim against Marshall.
That leaves a causal connection between the protest and Barach’s use of force. The plaintiff
bears the initial “burden of establishing that his protected conduct was a motivating factor behind
any harm,” which can be satisfied with circumstantial evidence. Maben, 887 F.3d at 267 (quoting
Thaddeus–X, 175 F.3d at 399). Then, “[i]f the defendant can show that he would have taken the
same action in the absence of the protected activity, he is entitled to prevail on summary
judgment.” Id. (quoting Thaddeus–X, 175 F.3d at 399)
Temporal proximity between protected conduct and retaliatory acts supports “an inference
of retaliatory motive.” King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012). And while tight
temporal proximity alone can meet the plaintiff’s burden, more is also sometimes required. See
Vereecke v. Huron Valley School Dist., 609 F.3d 392, 401 (6th Cir. 2010); Hazel v. Quinn, 933 F.
Supp. 2d 884, 889 (E.D. Mich. 2013). Where more is required, courts look to “the totality of the
circumstances to determine whether an inference of retaliatory motive could be drawn” from
temporal proximity. Vereecke, 609 F.3d at 401.
Once a plaintiff adduces sufficient evidence of motive, the burden of production shifts to
the defendants. See Maben, 887 F.3d at 268. A defendant who has “done little more than deny the
allegations put forth” by the plaintiff fails to meet their burden. Id. (quoting Thaddeus–X, 175 F.3d
at 399); see Hazel, 933 F. Supp. 2d at 890 (finding a defendant’s unsupported assertion insufficient
to establish a lack of causation at the summary judgment stage).
In this case, Sevy has adduced sufficient evidence to show that his protected conduct
motivated Barach’s use of force. The short time between the protected conduct and the adverse
action allow for an inference of motive. Only minutes elapsed between the time Sevy produced his
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PageID.1345
Page 22 of 23
pennies and the takedown. Moreover, Sevy says Barach “[gave] me a hard time the second I
walked in the door” and called Sevy a “punk” because Sevy wanted to pay with change. (ECF No.
45-4, PageID.768.) These statements support a reasonable inference that Sevy’s protest motivated
Barach’s adverse action. And earlier in the day when Sevy tried to pay his fine by debit card, he
had no trouble with the court security officers. So, based on the totality of the circumstances, a
jury could infer that Sevy’s speech caused Barach to use force against him from.
For his part, Barach resists that conclusion by insisting he had probable cause to arrest Sevy
for disorderly conduct. Otherwise, he has done little more than deny Sevy’s allegations. While
Barach’s claim that he had probable cause to arrest might matter in a retaliatory arrest case, see
Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019), it does little to help rebut Sevy’s claim that Barach
retaliated by using excessive force. So Barach’s final argument is unpersuasive.
Taking the facts in Sevy’s favor, Sevy establishes that Barach violated his First
Amendment rights. Coupled with the fact that Sevy’s rights were clearly established at the time,
Barach is not entitled to qualified immunity on Sevy’s First Amendment claim. But Marshall is.
IV.
For the reasons stated above, Sevy abandoned his unlawful arrest claim but did not abandon
his other claims against Marshall. Yet Marshall is entitled to qualified immunity on Sevy’s
remaining claims. However, Barach is not entitled to qualified immunity on Sevy’s claims of
excessive force and First Amendment retaliation. Accordingly, the defendants’ motion for
summary judgment is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
Date: August 5, 2019
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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Page 23 of 23
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, August 5, 2019, using the Electronic Court Filing system.
s/William Barkholz
Case Manager
23
App. 45
Case: 19-2038
Document: 33-1
Filed: 08/05/2020
Page: 1
No. 19-2038
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 05, 2020
DEBORAH S. HUNT, Clerk
ANTHONY SEVY,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff-Appellee,
v.
PHILIP BARACH,
Defendant-Appellant.
ORDER
BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case. The petition then was circulated to the full
court. No judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
App. 46
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.