Appendix — Hains v. Logsdon (No. 07-1189)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-4085

[Filed July 6, 2007]

JOSEPH MICHAEL LOGSDON,

Plaintiff-Appellant,

Vv.

CHARLES HAINS and

DANIEL MCSHANE,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Ohio

at Cincinnati. No. 05-00541

S. Arthur Spiegel, Sr., District Judge.

Argued: April 26, 2007.

Decided and Filed: July 6, 2007.

Before: SUHRHEINRICH, CLAY, and ROGERS,

Circuit Judges.

2a

COUNSEL

ARGUED: Thomas W. Condit, Cincinnati, Ohio, for

Appellant. Richard Ganulin, City Solicitor’s Office for

the City of Cincinnati, Cincinnati, Ohio, for Appellees.

ON BRIEF: Thomas W. Condit, Cincinnati, Ohio, for

Appellant. Richard Ganulin, City Solicitor’s Office for

the City of Cincinnati, Cincinnati, Ohio, for Appellees.

OPINION

CLAY, Circuit Judge.

Plaintiff, Joseph Michael Logsdon, appeals the

district court’s order granting a Rule 12(b)(6) motion

brought by Defendants, Charles Hains and Daniel

McShane, and dismissing Plaintiffs § 1983 suit and

related claims. Plaintiff alleged violations of his rights

under the First, Fourth, and Fourteenth Amendments

to the U.S. Constitution, and asserted various state

law claims for violations of the Ohio Constitution and

state common law. For the reasons that follow, we

REVERSE the district court’s order and REMAND

for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff has long been “an active member of the

pro-life movement” who, specifically, engages in

sidewalk counseling and peaceful protest outside

abortion clinics in and around Cincinnati, Ohio.! (J.A.

' Because we review the district court’s grant of a Rule 12(b)(6)

motion to dismiss, we rely solely upon the allegations contained

3a

at 8) Plaintiff alleges that he has “never threatened or

committed any act of violence” while counseling or

protesting. (/d. at 9) Plaintiff admits, however, that on

several occasions, he crossed the property line of the

abortion clinics to communicate with clinic patients

and hand them literature. Accordingly, Plaintiff has

been charged with and convicted of criminal trespass

in the past. Yet, Plaintiff claims that “he has always

treated judges and prosecutors with respect, served his

sentence(s) with dignity, and complied with any

related court orders.” (/d.) Plaintiff characterizes

himself as a “regular presence” at Cincinnati Women’s

Services (“CWS”), an abortion clinic in Cincinnati.

Plaintiff admits that, on the basis of his experience at

CWS and with its President, Debi Jackson (“Jackson”),

his “regular presence” is an unwelcome presence. (/d.)

Plaintiffs § 1983 suit arose from two separate

encounters with the City of Cincinnati police. The first

occurred October 28, 2003 on the public sidewalk

outside CWS, where Plaintiff protested and counseled

clinic patients. On that day, Plaintiff hung a sign on

the neighboring property’s fence. The sign said, “God

has a plan for your baby,” and listed a telephone

number. (J.A. at 10) A clinic patient complained about

in Plaintiffs complaint. In ruling on Defendants’ motion to

dismiss, the district court took judicial notice of the transcripts of

the criminal proceeding against Plaintiff arising out of his October

2003 arrest. Logsdon v. Hains, No. 1:05-CV-00541, 2006 WL

1793243, at *2n.1(S.D. Ohio June 27, 2006) (unpublished). That

transcript was made a part of the record on appeal. Having

reviewed the transcript, we find no need to take judicial notice

inasmuch as the facts set forth therein are, in pertinent part, co-

extensive with the factual allegations in Plaintiffs complaint.

4a

Plaintiffs sign and, apparently in response to the

patient’s complaint, Jackson removed Plaintiff's sign

from the fence and “walked toward the CWS clinic

with the intention of destroying it.” (/d.) Plaintiff

demanded that Jackson return his sign, to no avail. At

that point, Plaintiff walked onto CWS property and

took back his sign from Jackson, thereafter “promptly

return{ing] to the public sidewalk.” (Ud.) Jackson

subsequently contacted the City of Cincinnati Police.

Defendant Charles Hains (“Hains”), an officer of

the Cincinnati Police Department, responded to the

scene and placed Plaintiff under arrest. Defendant

Hains did not have a warrant for Plaintiffs arrest and

did not observe the incident at issue. Additionally,

Defendant Hains refused to listen to a witness’s

account of the incident, admonishing her to “Tell it to

the judge.” (J.A. at 11) Ultimately, Defendant Hains

arrested Plaintiff for criminal trespass and disorderly

conduct. Plaintiff remained in custody for

approximately four hours, after which time he was

released on bond. Pursuant to these charges, Plaintiff

appeared in Hamilton County Municipal Court on

several occasions along with counsel. The court

conducted a bench trial on May 10, 2004, finding

Plaintiff guilty of criminal trespass, but acquitting him

of disorderly conduct. On appeal heard April 22, 2005,

the Hamilton County Court of Appeals reversed

Plaintiffs conviction for criminal trespass upon a

finding that Plaintiff was privileged to enter CWS

property to retrieve his sign. Over the course of these

proceedings, Plaintiff incurred attorney fees in excess

of $10,000, and avers that he suffered various other

5a

harms and indignities.” Plaintiff avers that Defendant

Hains acted in “malicious and/or reckless disregard of

[Plaintiffs] clearly established statutory and

constitutional rights.” (J.A. at 12)

The second encounter took place on June 18, 2004.

That day, Plaintiff again counseled clinic patients and

protested on the public sidewalk near CWS. In order to

communicate with a clinic patient arriving in the CWS

parking lot that day, Plaintiff walked into an adjacent

public park and spoke to the patient through a chain

link fence. Plaintiff describes the conversation as “not

hostile” and says it “lasted for several minutes” before

the clinic patient entered the clinic. (J.A. at 13)

Following that encounter, an employee at CWS called

the Cincinnati Police to complain of trespass by

Plaintiff. Defendant Daniel McShane (“McShane’), an

officer of the Cincinnati Police Department, responded

and placed Plaintiff under arrest for criminal trespass.

Plaintiff states that McShane had no warrant for

Plaintiffs arrest and refused to listen to a witness’s

account of the incident. Additionally, McShane was

apparently not present at the scene during Plaintiffs

encounter with the clinic patient. Defendant McShane

filed criminal trespass charges against Plaintiff, and

Plaintiff was held at the Hamilton County Justice

Center for four hours that day. On this trespass

charge, Plaintiff also appeared several times before the

* It appears that Plaintiff initially filed suit against Defendant

Hains in the Hamilton County Court of Common Pleas on October

27, 2004, asserting various state law claims. However, Plaintiff

filed a voluntary notice of dismissal without prejudice and

reserved his right to re-file those claims.

6a

Hamilton County Municipal Court along with counsel

before the court ultimately dismissed the charge on

November 3, 2004. Plaintiff states that he incurred

over $2,000 in attorney fees in relation to this charge.

Plaintiff alleges that Defendant McShane “performed

maliciously and/or in reckless disregard of [Plaintiffs]

clearly established statutory and constitutional

rights.” (J.A. at 14)

On December 8, 2005, Defendants filed a motion to

dismiss Plaintiffs § 1983 complaint for failure to state

a claim. Therein, Defendants set forth five bases for

granting their motion to dismiss: (1) that Plaintiff

failed to plead a federal constitutional claim; (2) that

qualified immunity would shield Defendants from suit;

(3) that issue preclusion applied; (4) that there existed

an insufficient justification for pendent jurisdiction;

and (5) that Plaintiff failed to adequately plead state

tort claims. Plaintiff responded with a motion to

convert Defendants’ motion to dismiss into a

proceeding for summary judgment and for discovery,

as well as a response in opposition to Defendants’

motion to dismiss.

Ultimately, the district court granted Defendants’

motion to dismiss. In its order dismissing Plaintiffs

case, the district court reasoned as follows:

[Plaintiffs] Fourth Amendment claims clearly

relate to his arrests, and his First Amendment

claims are grounded in the theory that his

arrests impeded his freedom of expression and

of assembly. Should the arrests be supported by

probable cause, then none of Plaintiffs

constitutional claims survive. Having reviewed

7a

this matter, the Court finds the arresting

officers, in relying on testimony of a reliable

witness and finding [Plaintiff] at the scene of

the alleged trespass, reasonably believed that

Plaintiff committed trespass. Accordingly the

Officers had probable cause.

Logsdon, 2006 WL 1793243, at *4. Additionally, the

district court found that even if it erred in finding no

constitutional violations, Defendants were each

protected by the doctrine of qualified immunity. Jd. at

*8. Specifically, the district court opined that

Defendant “Hains was clearly reasonable in arresting

[Plaintiff,]” and that Defendant McShane “at worst...

reasonably misapprehended the law governing the

circumstances he discovered.” /d. Plaintiff timely

appealed the district court’s order.

DISCUSSION

PLAINTIFF’S FEDERAL CONSTITUTIONAL

CLAIMS

A. Standard of Review

We review de novo the district court’s grant of a

Rule 12(b)(6) motion. Petty v. County of Franklin,

Ohio, 478 F.3d 341, 345 (6th Cir. 2007); Bloch v. Ribar,

156 F.3d 673, 677 (6th Cir. 1998). Reviewing the

district court’s decision on a motion to dismiss, we

construe the plaintiffs complaint liberally, in

plaintiffs favor, accepting all factual allegations as

true and drawing all reasonable inferences in favor of

the plaintiff. Gazette v. City of Pontiac, 41 F.3d 1061,

1064 (6th Cir. 1994) (citing Westlake v. Lucas, 537 F.2d

8a

857, 858 (6th Cir. 1976)). If, after doing so, we find

that the plaintiff failed to state a claim for relief, we

will affirm the district court’s grant. Id. However,

“(t]he district court’s dismissal of a civil rights

complaint on a 12(b)\(6) motion is scrutinized with

special care.” Jd. Finally, we review de novo the

district court’s finding of qualified immunity. Bloch,

156 F.3d at 677 (citing O’Brien v. City of Grand

Rapids, 23 F.3d 990, 998 (6th Cir. 1994)).

B. Qualified Immunity and Plaintiff's Fourth

Amendment Claims

Plaintiff contends that the district court erred in

dismissing his § 1983 suit inasmuch as his complaint

states a claim for violations of his Fourth Amendment

right to be free from unreasonable searches and

seizures. The district court granted Defendants’ Rule

12(b)(6) motion to dismiss, finding that Defendants

each had probable cause to arrest Plaintiff and, at any

rate, were protected by qualified immunity. Having

“scrutinized with special care” the district court’s order

dismissing Plaintiffs claims, we hold that the district

court erred in granting Defendants’ motion to dismiss

Plaintiffs Fourth Amendment claims.

Qualified immunity shields “government officials

performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). As a threshold matter, we first consider

whether “the facts alleged show the officer’s conduct

violated a constitutional right.” Saucier v. Katz, 533

9a

U.S. 194, 201 (2001). Uf, upon review, we determine

that the officer in question violated the claimant’s

constitutional rights, we proceed to a second question:

whether at the time of the alleged violation that right

was “clearly established.” Jd. Accepting Plaintiff's

factual allegations as true and drawing all reasonable

inferences in his favor, we find that the district court

erred in dismissing Plaintiffs Fourth Amendment

claims against Defendants Hains and McShane. We

approach the question within the framework of

qualified immunity analysis, and first conclude that,

on the facts alleged, Defendants Hains and McShane

each violated the Fourth Amendment in arresting

Plaintiff absent a warrant inasmuch as they lacked

probable cause. See Saucier, 533 U.S. at 201.

The Fourth Amendment protects the right of

individuals to be free from improper arrest and

detention. U.S. Const. amend. IV (“The right of people

to be secure in their persons . . . against unreasonable

seizures . . . shall not be violated.”). “|A] warrantless

arrest by a law officer is reasonable under the Fourth

Amendment where there is probable cause to believe

that a criminal offense has been or is being

committed,” Devenpeck v. Alford, 543 U.S. 146, 152

(2004), and the “validity of the arrest does not depend

on whether the suspect actually committed a crime.”

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).

Accordingly, “[iJn order for a wrongful arrest claim to

succeed under § 1983, a plaintiff must prove that the

police lacked probable cause.” Fridley v. Horrighs, 291

F.3d 867, 872 (6th Cir. 2002) (citing Painter v.

Robertson, 185 F.3 d 557, 569 (6th Cir. 1999)).

10a

“Probable cause exists if the facts and

circumstances known to the officer warrant a prudent

man in believing that the offense has been committed.”

Henry v. United States, 361 U.S. 98, 102 (1959); see

also Beck v. Ohio, 379 U.S. 89, 91 (1964); Illinois v.

Gates, 462 U.S. 213, 238 (1983). The inquiry “depends

upon the reasonable conclusion to be drawn from the

facts known to the arresting officer at the time of the

arrest,” Devenpeck, 543 U.S. at 152, where supported

by “reasonably trustworthy information.” Beck, 379

U.S. at 91. No overly-burdensome duty to investigate

applies to officers faced with the prospect of a

warrantless arrest. In initially formulating probable

cause, they need not “investigate independently every

claim of innocence.” Gardenhire v. Schubert, 205 F.3d

303, 318 (6th Cir. 2000). And after the officer

determines, on the basis of the facts and circumstances

known to him, that probable cause exists, the officer

has no further duty to investigate or to search for

exculpatory evidence. Ahlers v. Schebil, 188 F.3d 365,

371 (6th Cir. 1999); Criss v. City of Kent, 867 F.2d 259,

263 (6th Cir. 1988). However, the initial probable

cause determination must be founded on “both the

inculpatory and exculpatory evidence” known to the

arresting officer, Gardenhire, 205 F.3d at 318

(emphasis in original); Estate of Dietrich v. Burrows,

167 F.3d 1007, 1012 (6th Cir. 1999), and the officer

“cannot simply turn a blind eye toward potentially

exculpatory evidence.” Ahlers, 188 F.3d at 372; see also

id. at 371 (noting that officers may not “make hasty,

unsubstantiated arrests with impunity”); Fridley, 291

F.3d at 873 (“The officer may not ignore information

which becomes available in the course of routine

investigations.”). “In general, the existence of probable

cause in a § 1983 action presents a jury question,

lla

unless there is only one reasonable determination

possible.” Fridley, 291 F.3d at 872 (quotation marks

omitted).

“Whether an officer is authorized to make an arrest

ordinarily depends, in the first instance on state law.”

DeFillippo, 443 U.S. at 36. Defendants each arrested

Plaintiff for criminal trespass.’ In Ohio, an individual

commits criminal trespass by “(k]nowingly enter[ing]

or remain[ing] on the land or premises of another”

absent “privilege to do so.” Ohio Rev. Code

§ 2911.21(A)(1). The Ohio Code defines “privilege” as

“an immunity, license, or right conferred by law,

bestowed by express or implied grant, arising out of

status, position, office, or relationship, or growing out

of necessity.” Id. at § 2901.01(A)(12). Ohio courts

construe the lack-of-privilege requirement as an

element of the offense of criminal trespass, and not an

affirmative defense. State v. Newell, 689 N.E.2d 513,

514 (Ohio Ct. App. 1994) (“In a criminal trespass

charge, the state is required to prove lack of

privilege.”); State v. Keegan, 588 N.E.2d 928, 929 (Ohio

Ct. App. 1990) (classifying absence of privilege as an

“essential element of trespass”). Accordingly,

Defendants had probable cause to arrest Plaintiffif, on

the basis of the facts known to them, they could

* Defendant Hains additionally charged Plaintiff with disorderly

conduct. Yet, on appeal, the respective parties do not rely on the

disorderly conduct charge to establish or to challenge the

constitutionality of Plaintiffs arrest. Accordingly, we examine

each of Plaintiffs claims with reference to the crimiial trespass

charge alone.

12a

reasonably conclude that Plaintiff knowingly entered

CWS’s property without privilege.

At the time Defendant Hains arrested Plaintiff,

Hains knew only that Jackson called the Cincinnati

Police to complain that Plaintiff had entered the CWS

property.‘ Upon arriving at the scene, Defendant

Hains refused to listen to an eyewitness account of the

incident, directing the witness to “Tell it to the judge.”

Although Plaintiff admits that he knowingly entered

the premises of CWS to retrieve his sign on October

28, 2003, on the facts alleged in Plaintiffs complaint,

Defendant Hains did not observe this conduct, nor did

Plaintiff admit such conduct to Defendant Hains at the

scene. Similarly, the facts and circumstances known to

Defendant McShane, as alleged in Plaintiffs

complaint, were that “someone at CWS called the City

of Cincinnati Police Division alleging that [Plaintiff]

had trespassed.” (J.A. at 13) Like Hains, McShane did

not witness the alleged trespass. Also like Hains,

Defendant McShane declined to hear a sidewalk

counselor’s “attempted explanation” of the incident.

(Id. at 12-13)

Reading Plaintiffs complaint in the light most

favorable to him, Defendants failed to reasonably

determine whether they had probable cause. In the

course of initially assessing whether probable cause to

arrest Plaintiff existed, Defendants respectively

* Expressly, Plaintiff's complaint alleges, “Jackson proceeded to

call the City of Cincinnati Police Division to report that [Plaintiff]

had committed a crime and to seek police intervention.” (J.A. at

10)

13a

“turn[ed] a blind eye” to potentially exculpatory

evidence when they refused to listen to the witnesses

at the scene. A prudent officer must draw reasonable

conclusions from the facts and circumstances known to

him as supported by “reasonably trustworthy

information.” See Beck, 379 U.S. at 91. It appears that

Defendants deliberately excluded from a totality of

known facts and circumstances information that might

bear on the accuracy, reliability, or trustworthiness of

the report that Plaintiff had trespassed on CWS’s

property. To that extent, Defendants did not act as

“prudent officer[s]” and their conclusions cannot be

deemed “reasonable.” Rather, potentially conflicting

explanations from these eyewitnesses would have

informed Defendants’ probable cause analyses, giving

them reason to question the reliability of reports that

Plaintiff had committed criminal trespass.° Cf. Ahlers,

188 F.3d at 370. Although cur Circuit’s precedent

“does not mandate that law enforcement operatives

should conduct quasi-trials as a necessary predicate to

the warrantless arrest” of suspects, Painter, 185 F.3d

at 571 n. 21, it does require that warrantless arrest

follow consideration of the totality of the

circumstances reasonably known to the arresting

° It is worth noting that on the facts alleged in Plaintiff's

complaint, the CWS employee reporting Plaintiffs alleged

criminal trespass on the second occasion did not actually witness

the event, but rather relied upon the report of a CWS client. The

presumption of reliability often afforded eyewitness accounts

would therefore not apply with equal force to the CWS employee

reporting the second incident. See Ahlers, 188 F.3d at 370 (noting

that “since eyewitnesses’ statements are based on firsthand

observations, they are generally entitled to a presumption of

reliability and veracity”).

l4a

officers. Because officers initially assessing probable

cause to arrest may not off-handedly disregard

potentially exculpatory information made readily

available by witnesses on the scene, there is a set of

facts consistent with the pleadings in which

Defendants violated Plaintiffs Fourth Amendment

rights. See Gardenhire, 205 F.3d at 318; Ahlers, 188

F.3d at 371-72; cf. Painter, 185 F.3d at 571.

At oral argument, Defendants argued that officers

need not entertain any exculpatory evidence to the

contrary when they receive a call from a “reliable

source” reporting purportedly criminal activity.

Defendants’ argument is undermined as a result of

Defendants’ failure to offer a persuasive explanation of

what constitutes a “reliable source.” For purposes of

this discussion, we shall limit our definition of reliable

source to someone with respect to whom there is no

apparent reason to question the person’s reliability.

Probable cause assessments depend on the totality of

the circumstances known to the officer. Here, the

totality should have encompassed readily available

eyewitness accounts, but did not because Defendants

refused to listen. We express no opinion as to whether,

where the totality of the circumstances consists solely

of a report of criminal activity from a reliable source,

probable cause exists to arrest. That case is not before

us.° Even assuming that CWS constitutes a “reliable

° On some conceivable set of facts, a call from a reliable source,

standing alone, may be sufficient to establish probable cause.

Although not directly on point, Ahlers is instructive. There, a

victim’s “accusation that she had been sexually assaulted by [the

§ 1983 plaintiff], standing alone, was sufficient to establish

15a

source” here, Defendants deliberately disregarded

available evidence and, consequently, failed to

reasonably formulate probable cause. Accordingly,

Defendants’ argument has no merit in this case.

Our conclusion is only that sufficient facts have

been alleged to avoid dismissal on the pleadings. We

conclude that Plaintiff has stated a claim that

Defendants lacked probable cause to arrest Plaintiff

and, therefore, that they violated Plaintiffs Fourth

Amendment rights.

We next consider whether Plaintiffs rights were

“clearly established.” Saucier, 533 U.S. at 207. On this

point, we determine “whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Jd. at 202. Qualified

immunity cannot be invoked to shield an officer from

liability where “in light of pre-existing law, the

unlawfulness” of his conduct was “apparent.” Anderson

vu. Creighton, 483 U.S. 635, 640 (1987). Pre-existing

law need not address the very question at hand;

rather, “[t]he contours of the right must be sufficiently

clear.” Center for Bio-Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807, 830 (6th Cir. 2007). In June

2004, “the law was clearly established that, absent

probable cause to believe that an offense had been

committed, was being committed, or was about to be

committed, officers may not arrest an individual.”

Gardenhire, 205 F.3d at 313 (quoting Dietrich, 167

F.3d at 1012) (internal quotation marks omitted).

probable cause,” where there was no apparent reason to question

the reliability of that accusation. 188 F.3d at 370.

16a

There has been no sea change in this body of law since

Plaintiffs arrest in June 2004. As a result, the district

court erred in finding Defendants protected by

qualified immunity.

We note that on remand, after sufficient discovery,

the district court quite obviously retains its discretion

to entertain motions for summary judgment. Without

the benefit of discovery, we express no opinion on the

ultimate merits of Plaintiffs case. We simply find,

having “scrutinized” Plaintiffs case “with special care,”

that the district court improvidently dismissed

Plaintiffs claims. See Gazette, 41 F.3d at 1064.

Accordingly, we reverse the district court’s dismissal

of Plaintiffs Fourth Amendment claims.

C. Qualified Immunity and Plaintiffs First

Amendment Claims

Plaintiff additionally alleged violations of his rights

under the First Amendment. Before the district court,

Plaintiff denied asserting a First Amendment

retaliation action. Rather, he claimed to challenge

“Defendants’ actions in removing him from the public

sidewalk, when he had done nothing wrong, [as] a per

se violation of his First Amendment freedoms.”

Logsdon, 2006 WL 1793243, at *4. As the district court

correctly noted, Plaintiffs “First Amendment claims

are grounded in the theory that his arrests impeded

his freedom of expression and of assembly.” Jd. The

district court therefore concluded that “[s]hould the

arrests be supported by probable cause, then none of

Plaintiffs constitutional claims survive.” Id. Because

the district court erred in granting Defendants’ motion

to dismiss Plaintiffs Fourth Amendment claims, the

l7va

district court’s basis for dismissing Plaintiffs First

Amendment claims is no longer valid. Examining

Plaintiffs First Amendment claims de novo, with

reference to other plausible theories, we reverse the

district court’s dismissal of Plaintiffs First

Amendment claims.

We begin by considering whether Defendants

violated Plaintiffs constitutional rights. See Saucier,

533 U.S. at 201. On appeal, Plaintiff does little to

clarify how Defendants violated his First Amendment

rights. Plaintiff does not argue that Defendants

arrested him in retaliation for his exercise of speech,

nor could he, having disavowed this argument before

the district court.’ Rather, Plaintiff cites Frisby v.

Schultz, 487 U.S. 474 (1988) and Pouillon v. City of

Owosso, 206 F.3d 711 (6th Cir. 2000), apparently in

support of an argument that the state impermissibly

regulated speech conducted in a public forum.

Frisby v. Schultz concerned a facial First

Amendment challenge to a city ordinance that banned

all picketing “before or about’ any residence.” 487 U.S.

’ We note that, had Plaintiff asserted a claim that Defendants

retaliated against him in response to his exercise of free speech,

Plaintiff would have preserved yet another potentially favorable

path to make out a First Amendment violation, or at least to

survive motions for summary judgment. See generally Center for

Bio-Ethical Reform, 477 F.3d at 820-24; see also id. at 823-24

(concluding that genuine issues of material fact remained as to

officers’ motivation in effecting a lengthy detention of pro-life

activists); McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th

Cir. 2001) (arrest absent probable cause constitutes adverse action

of sufficient consequence to form the basis of a retaliation claim).

18a

at 476. There, the plaintiffs were abortion protestors

who sought to picket on a public street in front of an

abortion provider’s home, and who were prevented

from picketing after the city adopted the prohibitive

ordinance. Id. The Supreme Court in Frisby analyzed

the plaintiffs challenge under the public forum

doctrine, first acknowledging that the ordinance

restricted speech in a “traditional public forum”

inasmuch as it prevented protest on public streets and

sidewalks. Id. at 479-81. The Frisby court next

observed that the appropriate level of scrutiny depends

on whether the ordinance is content-neutral in

marking the bounds of permissible speech. Jd. at 481.

Finding the city’s ordinance to be content-neutral, the

court went on to consider “whether the ordinance is

‘narrowly tailored to serve a significant government

interest’ and whether it ‘leave[s] open ample

alternative channels of communication.” Jd. at 482

(quoting Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45 (1983)). Construing the

ordinance narrowly, the court ultimately upheld the

ordinance, finding that it preserved adequate

alternative channels of communication, and that it

served the significant government interest of

protecting residential privacy. Id. at 484.

In Pouillon v. City of Qwosso, police arrested the

plaintiff, an anti-abortion protestor, purportedly for

“refusing a lawful police order’ to move, and

‘obstructing passage to a public building.” 206 F.3d

711, 713 (6th Cir. 2000). There, the plaintiff had been

protesting abortion on the steps of city hall when

officers instructed him to move because he “was

obstructing entry to and egress from city hall.” Id. at

714. Plaintiff refused. Jd. Police then arrested him,

19a

took him into custody, and subsequently booked and

charged him under a city ordinance that prohibits

interference with police in the conduct of their duties.

Id. The plaintiff in Pouillon brought a § 1983 suit

against the officers alleging violations of his First and

Fourth Amendment rights. /d. at 713-14. With respect

to his First Amendment claim, the plaintiff argued

that in arresting him for refusing to move his protest

off the city hall steps, “the officers’ restriction of his

freedom of speech, even if construed as a time, place,

and manner regulation, was not a reasonable one.” Id.

at 714.

We concluded in Pouillon that the city hall steps

were a traditional public forum and, accordingly, that

“protest on the steps of city hall could not be prohibited

altogether.” Jd. at 717. We then went on to consider

“whether requiring [the plaintiff] to move to the

sidewalk was a reasonable time, place, and manner

restriction that .. . left open ample alternative

channels of communication.” /d. at 717-18. Because

the plaintiff had previously been harassed while

protesting on the streets, and allegedly had stopped

protesting on the street for that reason, we found that

a question of fact remained as to whether the

requirement to move to the sidewalk left open ample

alternative channels of communication to the plaintiff,

or alternatively “inhibit[ed] his protest.” Jd. at 718. We

additionally noted an open question of fact as to

“whether [the plaintiffs] protest . . . was impeding

access to city hall such that it was reasonable to

require him to move.” /d. at 717.

In the instant case, Plaintiff averred that he

engaged in anti-abortion protest and counseling from

20a

the public sidewalk and public park adjoining the CWS

property, both quintessentially public fora. See Perry

Educ. Ass’n, 460 U.S. at 45 (“[S]treets and parks...

‘have immemorially been held in trust for the use of

the public, and, time out of mind, have been used for

purposes of assembly, communicating thoughts

between citizens, and discussing public questions.”)

(quoting Hague v. Comm. for Indus. Org., 307 U.S.

496, 515 (1939)). On the facts alleged in Plaintiff's

complaint, Defendants each removed Plaintiff from the

public fora, thereby causing him to cease his protest

and counseling, ostensibly for violating Ohio’s criminal

trespass law. In public fora, “[r]leasonable time, place

and manner regulations are permissible, and a

content-based prohibition must be narrowly drawn to

effectuate a compelling state interest.” Perry Educ.

Ass’n, 460 U.S. at 46. Plaintiffs complaint alleges that

Defendants each “[dJemonstrat [ed] a blatant bias

against [Plaintiff] and in favor of doing whatever CWS

wanted.” (J.A. at 11, 13) Construing Plaintiffs

complaint liberally, Plaintiff alleges that Defendants

were motivated by the content of his speech in

removing him from the public forum, and not by any

purported criminal trespass. Accordingly, Plaintiffhas

stated a claim that Defendants violated his First

Amendment rights by restricting his speech on the

basis of content.

Next, we consider whether qualified immunity

applies to the alleged First Amendment violation, and

we specifically look to “whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier, 533 U.S. at 202. It

has long been the case that content-based regulations

of the citizen’s right to engage freely in speech in

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quintessential public fora presumptively violate the

First Amendment. See Perry Educ. Ass’n, 460 U.S. at

46; see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382

(1992) (“The First Amendment generally prevents

government from proscribing speech . . . because of

disapproval of the ideas expressed. Content-based

regulations are presumptively invalid.”) (internal

citations omitted). The contours of the First

Amendment public forum doctrine are sufficiently

clear. Here, Defendants ostensibly arrested Plaintiff

for violating Ohio’s criminal trespass law. However, if

instead, as Plaintiff appears to allege, Defendants

arrested him because of the content of his speech, then

Defendants acted in violation of the First Amendment

in ways that should have been clear to a reasonable

officer. Viewing the allegations in the light most

favorable to Plaintiff, the district court erred in

dismissing Plaintiffs First Amendment claims. We

reverse because Plaintiff stated a claim, but express no

opinion as to whether Plaintiff will ultimately succeed

on his claim following discovery.

II. PLAINTIFF’S STATE LAW CLAIMS

A. Standard of Review

This Court reviews a district court’s grant of a Rule

12(b)(6) motion de novo, as set forth in Section I.A,

supra. See Petty, 478 F.3d at 345; Bloch, 156 F.3d at

677.

B. State Law Tort Claims

The district court held that Plaintiffs state law

claims of false arrest, false imprisonment, and

22a

malicious prosecution could not be sustained because

each of those claims required a showing that Plaintiff

had been unlawfully detained. We reverse the district

court’s dismissal of Plaintiff's state law claims.

We agree with the district court that each of those

claims in some way required proof of unlawful

detention. First, to succeed on a claim of malicious

criminal prosecution, an Ohio claimant must show

three elements: “(1) malice in instituting or continuing

the prosecution, (2) lack of probable cause, and (3)

termination of the prosecution in favor of the accused.”

Trussell v. Gen. Motors Corp., 559 N.E.2d 732, syllabus

(Ohio 1990) (emphasis added). Second, “[flalse

imprisonment occurs when a person confines another

intentionally ‘without lawful privilege and against his

consent within a limited area for any appreciable time,

however short.” Bennett v. Ohio Dep't of Rehab. &

Corr., 573 N.E.2d 633, 636 (Ohio 1991) (emphasis

added). Third, the essential elements for a false arrest

claim in Ohio are “indistinguishable from a claim for

false imprisonment in that each claim requires proof

that one was intentionally confined . . . without lawful

justification.” Evans v. Smith, 646 N.E.2d 217, 225

(Ohio 1994) (emphasis added). Because we conclude

that Plaintiffs complaint states a claim that

Defendants unlawfully arrested Plaintiff, we reverse.

C. State Law Constitutional Claims

Finally, Plaintiff also alleged violations of the Ohio

State Constitution in his complaint-specifically, of

Article I, Sections 11 and 14. The district court below

never squarely addressed Plaintiffs state

constitutional claims. On appeal, Plaintiff merely

23a

argues that if this Court finds Plaintiff stated a claim

for violations of the U.S. Constitution, then the “state

law claims” should be reinstated on remand. (PI.’s Br.

at 28) Article I, Section 11 of the Ohio Constitution is

interpreted in lockstep with the First Amendment to

the U.S. Constitution. Eastwood Mall, Inc. v. Slanco,

626 N.E.2d 59, 61 (Ohio 1994). Additionally, Ohio

courts have read Article I, Section 14 of the Ohio

Constitution “to protect the same interests and in a

manner consistent with the Fourth Amendment to the

United States Constitution.” State v. Andrews, 565

N.E.2d 1271, 1273 n. 1 (Ohio 1991). As previously set

forth, Plaintiff stated a claim against Defendants for

violations of the First and Fourth Amendment.

Accordingly, on remand, the district court should

consider Plaintiffs contention that Defendants

violated Article I, Section 11 and Article I, Section 14

of the Ohio Constitution.

CONCLUSION

For the above reasons, we REVERSE the district

court’s order and REMAND for further proceedings

consistent with this opinion.

24a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-4085

[Filed July 6, 2007]

JOSEPH MICHAEL LOGSDON,

Plaintiff-Appellant,

V.

CHARLES HAINS and

DANIEL MCSHANE,

Defendants-Appellees.

Nee Nee eee eee Se”

Before: SUHRHEINRICH, CLAY, and ROGERS,

Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED

that the judgment of the district court is REVERSED

and the case is REMANDED for further proceedings

consistent with this Court’s opinion

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ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. 1:05-CV-00541

[Filed June 27, 2006]

JOSEPH MICHAEL LOGSDON,

Plaintiff,

Vv.

CHARLES HAINS, et al.,

Defendants.

)

)

)

)

)

)

)

)

ORDER

This matter is before the Court on Defendants

Charles Hains and Daniel McShane’s Motion to

Dismiss and Memorandum in Support (doc. 6),

Plaintiffs Memorandum Opposing Defendants’

Motions to Dismiss (doc. 7), and Defendants’ filing of

state court transcripts (doc. 9). Also before the Court

are Plaintiffs Motion for Order to Convert Defendants’

Motion to Dismiss to a Proceeding for Summary

Judgment and Publishing a Discovery Order (doc. 10),

Defendants’ Response in Opposition (doc. 12), and

Plaintiff's Reply (doc. 14). Finally, before the Court are

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Plaintiffs Motion for Leave to File a Supplemental

Memorandum Addressing the Preclusion Argument in

Defendants’ Rule 12(b)(6) Motion (doc. 11) and

Defendants’ Response in Opposition (doc. 13). For the

reasons indicated herein, the Court GRANTS

Defendants’ Motion to Dismiss and DISMISSES this

matter from the Court’s docket.

I. BACKGROUND

In his Complaint for Money Damages, Plaintiff,

Joseph Logsdon (“Logsdon”), alleges ten causes of

action against Defendant Cincinnati Police Officers

Charles Hains and Daniel McShane in their individual

capacities (doc. 1). Logsdon’s claims arise from his

arrests on two separate dates at Cincinnati Women’s

Services, a clinic that provides lawful abortions (ld.).

Plaintiff Logsdon has for many years protested outside

of local Cincinnati abortion clinics (Id.). He has a

history of arrest and conviction related to his protests,

usually for criminal trespass, for which he had eight

prior convictions (Id.). Logsdon describes himself as a

“regular presence” at the Cincinnati Women’s Services

clinic and acknowledges that “he has known for many

years that he is not welcome on CWS property”(Id.).

A. The October 2003 Incident

On October 28, 2003, Plaintiff Logsdon was

protesting on the public sidewalk in front of Cincinnati

Women’s Services and had placed a sign on a fence

that borders the clinic’s parking lot (Id.). It is

undisputed that the clinic’s director, Debi Jackson,

removed the sign from the neighboring fence and

walked toward the clinic, through the clinic’s parking

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lot, with the intention of throwing the sign away (Id.).

Plaintiff claims that after repeatedly demanding that

Jackson return his sign, Plaintiff walked into the clinic

parking lot, took the sign away from Jackson, and

returned to his sidewalk protest (Id.). Jackson then

called the police (Id.). Defendant Officer Hains

responded to the call, arrested Logsdon, and charged

him with criminal trespass and disorderly conduct

(Id.). Plaintiff remained in the Hamilton County

Justice Center for approximately four hours and was

released on bond (Id.).

Plaintiffs Complaint notes that Officer Hains was

not present for the interaction between Jackson and

Plaintiff, and that Hains did not, himself, witness a

crime (Id.). In addition, Plaintiff contends that Officer

Hains knew or should have known that Plaintiff

Logsdon’s entry onto the clinic's property was

privileged (Id.). Further, Plaintiff claims that Officer

Hains responded to a fellow protestor who attempted

to tell Hains what she had seen with, “Tell it to the

judge” (Id.).

B. The June 2004 Incident

On June 18, 2004, Plaintiff Logsdon was again

protesting on the public sidewalk in front of the

Cincinnati Women’s Services clinic (Id.). According to

the Complaint, Logsdon walked into the public park

contiguous to the clinic’s parking lot to talk, through

the chain link fence separating the properties, to a

woman who was in the clinic parking lot (Id.). Plaintiff

claims that he did not, at any point during this

exchange, enter the clinic property (Id.). Plaintiff

Logsdon contends that someone from the clinic staff

29a

called the police alleging that Plaintiff had trespassed

onto clinic property and Defendant McShane

responded to the call (Id.). According to the Complaint,

Officer McShane, without a warrant, arrested

Logsdon, placed him in handcuffs and transported him

to the Hamilton County Justice Center, where he was

charged with criminal trespass and remained in

custody for approximately four hours until his release

on bond (Id.). As before, Plaintiff Logsdon notes in his

Complaint that the arresting officer was not present

for the incident and had not himself witnessed a crime

(Id.). In addition, Plaintiff contends that Officer

McShane ignored the attempts of a fellow protestor to

provide their account of what had transpired (Id.).

II. PROCEDURAL HISTORY

As a result of the October 2003 incident, Logsdon

was tried for disorderly conduct and trespassing before

Judge Lisa Allen of the Hamilton County Municipal

Court.’ Judge Allen denied Logsdon’s repeated motions

to dismiss the trespassing case against him, rejecting

Logsdon’s argument that his retrieval of his poster was

privileged under the law. However, Judge Allen found

Logsdon not guilty of disorderly conduct. On the

trespassing conviction, Judge Allen fined Logsdon

‘ The Court takes judicial notice of the cited proceedings, and the

transcripts of the proceedings put into evidence by Defendants.

A.G. Reeves v. Weiss, 119 F.2d 472, 474 (6th Cir. 1941) (Court may

take judicial notice of proceedings in a related case).

30a

$100 and court costs, placed him on probation, and

ordered him to stay away from the clinic.’

Logsdon appealed his sentence. Judge Mark

Painter, of the First Appellate District of the Ohio

Court of Appeals, reversed Logsdon’s trespassing

conviction, finding that Plaintiff was privileged to

enter the clinic property for the short time that he did

in order to retrieve his sign. Ohio v. Joseph Logsdon,

160 Ohio App.3d 517, No. C-040405, 2005-Ohio-1875,

(Ohio Ct. App., April 22, 2005). Judge Painter

commented that the “whole matter was blown way out

of proportion,” and that the incident should have

ended after the initial confrontation. Jd.

The incident did not end then, nor was the conflict

put to rest subsequent to Judge Painter’s decision.

Having successfully challenged his criminal conviction,

Plaintiff filed the instant Complaint on August 16,

2005, challenging the legality of his arrests both in

October 2003 and June 2004, seeking monetary

damages and attorney fees (doc. 1). Plaintiff alleges

that Defendant Officers denied him his federal and

state constitutional free speech rights, his federal

constitutional right to assembly, his federal and state

constitutional rights to be free from unreasonable

search and seizure, and are liable to him for false

* Judge Allen sentenced Logsdon on June 1, 2004, but stayed

execution pending appeal. Despite the stay of the sentence, Judge

Allen told Defendant, “I just want you to stay away [from the

clinic].” Defendant obviously interpreted the stay of his sentence

to permit him to return to the clinic, where some seventeen days

later Officer McShane arrested him.

3la

arrest, false imprisonment, and malicious prosecution

(Id.).

On December 8, 2005, Defendants Hains and

McShane filed the present Motion to Dismiss, arguing

that Plaintiff has failed to state a claim upon which

relief may be granted, that Defendants are entitled to

qualified immunity from suit on the federal claims and

to statutory immunity on the state claims (doc. 6).

Plaintiff filed his Memorandum in Opposition to

Defendants’ Motion to Dismiss (doc. 7).

tl. APPLICABLE LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6)

requires the Court to construe the complaint in the

light most favorable to the plaintiff, Block v. Ribar,

156 F.3d 673, 677 (6th Cir. 1998), accept as true all the

Complaint’s factual allegations, Broyde v. Gotham

Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and

determine whether “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 45-46 (1957). See also Ziegler v.

IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir.

2001). A court’s decision to grant a motion to dismiss

may not be based upon a disbelief of the Complaint’s

factual allegations. Miller v. Currie, 50 F.3d 373, 377

(6th Cir. 1995) (courts should neither weigh evidence

nor evaluate the credibility of witnesses). Instead, in

its scrutiny of the complaint, the Court must construe

all well-pleaded facts liberally in favor of the party

opposing the motion. Scheuer v. Rhedes, 416 U.S. 232,

236 (1974) (overruled on other grounds). Indeed, “[a]

court may dismiss a complaint only if it is clear that no

32a

relief could be granted under any set of facts that could

be proved consistent with the allegations.” Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984). The question

before the Court considering a motion to dismiss is

“not whether [the] plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to

support the claims.” Scheuer v. Rhodes, 416 U.S. 232,

236 (1974).

The admonishment to liberally construe the

plaintiffs claim when evaluating a Rule 12(b)(6)

dismissal does not relieve a plaintiff of his obligation

to satisfy federal notice pleading requirements and

allege more than bare assertions of legal conclusions.

Wright, Miller & Cooper, Federal Practice and

Procedure: § 1357 at 596 (1969).” In practice, a

complaint ... must contain either direct or inferential

allegations respecting all of the material elements [in

order] to sustain a recovery under some viable legal

theory.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d

1101, 1106 (7th Cir. 1984) (quoting In Re: Plywood

Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981)).

IV. DEFENDANTS’ MOTION TO DISMISS

Defendants move to dismiss Plaintiffs Complaint

on the following grounds: (1) Plaintiffs failure to plead

a federal constitutional claim; (2) the Officers’

assertion that they are entitled to qualified immunity

from suit; (3) issue preclusion; (4) lack of justification

for pendent jurisdiction; and (5) failure to adequately

plead state tort claims (doc. 6).

33a

A. Defendants’ Attack on Plaintiff's

Constitutional Claims

Plaintiff Logsdon claims that his Fourth and

Fourteenth Amendment rights to be free from

unreasonable searches and seizures were violated

when the two officers arrested him without a warrant

(doc. 1). As a result of his arrests, he alleges he was

prevented from continuing his protest on October 28,

2003, and June 18, 2004; thus giving rise to a violation

of his First Amendment rights to freedom of speech

and freedom of assembly (Id.).

Defendants argue that Plaintiff fails to allege a

First Amendment retaliation claim, as the officers

were alleged merely to have responded to telephone

calls, and the officers are not alleged to have acted

with malice (doc. 6). Defendants further argue that the

Complaint fails to allege that the officers arrested

Logsdon without probable cause (Id.). Defendants

argue that Plaintiff is precluded from relitigating the

issue of lack of probable cause before this Court based

on the fact that Logsdon’s motion to dismiss the

trespassing case against him was litigated before the

state court judge, and denied (Id.).

Plaintiff responds that he has not alleged

retaliation for First Amendment activity, but rather

has simply alleged that Defendants’ actions in

removing him from the public sidewalk, when he had

done nothing wrong, was a per se violation of his First

Amendment freedoms in violation of clearly

established law (doc. 7). Plaintiff further argues that

the two arrests were unreasonable and unsupported by

probable cause (Id.). He argues Defendants witnessed

34a

no crimes, and deliberately disregarded the testimony

of other protesters (Id.). Plaintiff argues that

Defendants’ citation to the transcript from the state

court proceeding “goes outside the record and beyond

the allegations in the Complaint by flirting with a

preclusion argument with respect to ‘probable cause”

(Id.).

1. The Trial Court Did Not Consider the

Issue of Probable Cause.

Although the state trial court denied Logsdon’s

motion to dismiss the criminal complaint against him,

therefore giving credence to the propriety of the

October 2003 arrest, the state trial court never

explicitly addressed the question of probable cause.

The issue of probable cause was not actually litigated,

and no state court issued a final decision on the

specific question. Hollins v. Massanari, 49 Fed. Appx.

533, 535 (6th Cir. 2002) (issue preclusion only applies

if “the issue was actually litigated and decided in the

prior action”) (quoting Hammer v. Immigration and

Naturalization Serv., 195 F.3d 836, 840 (6th Cir.

1999)). The court’s review in the state matter

pertained to Logsdon’s actions and not those of the

arresting officers. For this reason the Court does not

find that issue preclusion is applicable here.

2. Plaintiffs Claims Turn on Probable

Cause

All of Plaintiffs present claims arise from the

alleged impropriety of his arrest. His Fourth

Amendment claims clearly relate to his arrests, and

his First Amendment claims are grounded in the

35a

theory that his arrests impeded his freedom of

expression and of assembly. Should the arrests be

supported by probable cause, then none of Plaintiffs

constitutional claims survive. Having reviewed this

matter, the Court finds the arresting officers, in

relying on testimony of a reliable witness and finding

Logsdon at the scene of the alleged trespass,

reasonably believed that Plaintiff committed trespass.

Accordingly the Officers had probable cause.

“A police officer has probable cause if there is a fair

probability that the individual to be arrested has

either committed or intends to commit a crime.”

Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)

(internal quotation and citations omitted). Officers

determine the existence of probable cause based on the

facts and circumstances that are both within their

knowledge at the time of the arrest and are sufficient

to inform a “prudent person, or one of reasonable

caution,” that the suspect “has committed, is

committing, or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The

law accepts the risk that officers may stop and even

arrest the innocent. J/linois v. Wardlow, 528 U.S. 119,

126 (2000). “Indeed the Fourth Amendment accepts

that risk . . . persons arrested and detained on

probable cause to believe they have committed a crime

may turn out to be innocent.”/d. Finally, a warrantless

arrest for a misdemeanor does not violate Fourth

Amendment rights where probable cause _ is

established. Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001).

36a

3. The October 2003 Incident: Plaintiffs

Entry Ultimately Determined

Privileged

Plaintiff argues Defendant Hains improperly

arrested him in October 2003, for trespass, by failing

to listen to the testimony of his fellow protesters and

for failing to ascertain that his entry onto the clinic

property was privileged. In Ohio, criminal trespass, a

fourth degree misdemeanor, is codified in the Ohio

Revised Code Section 2911.21, providing in relevant

part that “No person, without privilege to do so, shall

. . . [k] nowingly enter or remain on the land or

premises of another.” Privilege encompasses

“Immunity . . . growing out of necessity.” Ohio Rev.

Code § 2901.01.

The Court finds two Sixth Circuit cases instructive

here. First, in Estate of Dietrich v. Burrows, 167 F.3d

1007 (6th Cir. 1999), the court held that the arresting

officers did not have probable cause when they knew

of “facts and circumstances that conclusively

established, at the time of [the arrest]” that the

suspect had an affirmative defense to the crime for

which he was detained. /d. at 1012. Next, in Painter v.

Robertson, 185 F.3d 557 (6th Cir. 1999), the court held

that determinations of probable cause include “facts

and circumstances establishing a_ statutorily

legitimated affirmative justification for the suspected

criminal act .” Jd. at 570, citing Dietrich, 167 F.3d at

1013-14. However, the Painter court made two critical

clarifications about its holding: first, it held that an

officer “may not ignore information known to him

which proves that the suspect is protected by an

affirmative legal justification.” Id. at 571. Second, the

37a

court stated in a footnote that it was emphatically not

requiring

that law enforcement operatives should conduct

quasi-trials as a necessary predicate to the

warrantless arrests of perpetrators . .. Rather,

this court . . . merely resolves that, where a

reasonable officer would conclusively know that

an investigative target’s behavior is protected

by a legally cognizable affirmative defense, that

officer lacks a legal foundation to arrest that

person for that behavior (Id. at n. 21).

Thus, as noted by the Sixth Circuit, “it is clear that a

police officer is not required to inquire into facts and

circumstances in an effort to discover if the suspect

has an affirmative defense.” Fridley, 291 F.3d at 873.

Indeed, and relevant here, the court held that “[e]ven

if circumstances suggest that a suspect may have an

affirmative defense, if a reasonable officer would not

‘conclusively know’ that the suspect is protected by the

defense, then he is free to arrest the suspect provided

that there is probable cause to do so.” Id.

Thus, the inquiry becomes whether Officer Hains

had probable cause to arrest Logsdon based on the

phone call from the clinic and whether a reasonable

officer would “conclusively know” that Logsdon would

be protected against a charge of criminal trespass with

a defense of privilege to enter to recover his property.

The Court finds under the circumstances presented

here, Officer Hains ‘had probable cause to arrest

Logsdon based on the phone call from the clinic. Where

a citizen-informant is also the apparent victim of a

38a

crime in question, her report is entitled to great weight

when determining the existence of probable cause. See,

e.g., Adams v. Williams, 407 U.S. 143, 147 (1972)

(information provided to police by victims of crime

should not be thwarted by “subtleties of the hearsay

rule”); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.

1999) (“An eyewitness identification will constitute

sufficient probable cause unless, at the time of the

arrest, there is an apparent reason for the officer to

believe that the eyewitness was lying, did not

accurately describe what he had seen, or was in some

fashion mistaken regarding his recollection of the

confrontation.”). In 2003, the Sixth Circuit observed

that the court “has consistently upheld arrests that

were predicated upon witness identifications.” Banks

v. Kentucky State Police, 57 Fed .Appx. 242 (6th Cir.

2003) (finding “ample probable cause” for arrest of

suspect for domestic violence based on call from

victim). Here the facts and circumstances within

Officer Hain’s knowledge were sufficient to lead a

person of reasonable caution to conclude Plaintiff had

trespassed. Officer Hains responded to a call for help

at a location that has been the target of trespass

offenders, including Plaintiff, on numerous occasions.

Officer Hains was not responding to an anonymous tip,

and there was no question Plaintiff had been on the

property. Officer Hains was not unreasonable in

concluding that Plaintiff had trespassed.°

* See, United States of America v. Reed, 220 F.3d 476 (6th Cir.

2000), where the Defendant argued, in reliance on Washington v.

Blair, 827 P.2d 356 (Wa. 1992), that the officers needed to have

concluded prior to the arrest for trespassing whether he was

privileged to enter or remain on the property. /d. at 479. The

39a

Should Officer Hains have conclusively known that

Logsdon’ s trespass was privileged under common law

principles? The Court cannot impose such a burden on

the Officer here, as even the state trial court judge

erred on the question. Privilege encompasses

“immunity . . . growing out of necessity.” Ohio Rev.

Code § 2901.01. A reasonable officer might have found

it not a necessity for Logsdon to retrieve his poster.

Officer Hains was entitled to give little credence to

Logsdon’s fellow protestors and encourage them to

take their testimony to the judge. Hains had a legal

foundation for the arrest based on probable cause, and

Hains was not required to conduct a quasi-trial in

order to determine that Logsdon’s trespass was

technically privileged.

Sixth Circuit rajected the reasoning of Washington, finding that

it “was based upon a requirement negating the affirmative

defense of privilege prior to arresting a person for trespass. This

Circuit does not require such an added inquiry to the probable

cause determination.” Id. (emphasis added). Judge Gilman, in his

dissent, took issue with this characterization of the Washington

state decision and presented Virginia and Maryland state court

decisions to support his interpretation that the requirement was,

instead, that the officer must have “probable cause to believe that

the defendant was on the property without a legitimate purpose

at the time of his arrest.” Jd. at 480-81. Interestingly, however,

Judge Gilman presented a hypothetical scenario that serves to

bolster Officer Hains’s position in the instant case: “[L]et us

assume that [the] apartment manager had informed the officers

that Reed was trespassing. The officers would then have had

probable cause to arrest Reed for criminal trespass. . . . [They]

would have had probable cause to arrest and would not have had

to dispel every innocent explanation.” Jd. at 482.

40a

For these reasons, the Court concludes that

Plaintiff fails to state federal constitutional claims

against Officer Hains.

4. The June 2004 Incident

The June 2004 incident presents a closer case. In

this incident, Logsdon did not actually enter the

property. Officer McShane responded to a call for help

from the clinic alleging that Logsdon had trespassed.

McShane found Logsdon near the clinic, gave credence

to the clinic’s charge that Logsdon trespassed, and

arrested Logsdon.

Taking into consideration the facts and

circumstances in Officer McShane’s knowledge that

day, the Court again concludes that his actions were

not objectively unreasonable, although McShane was

ultimately mistaken. McShane, like Hains, confronted

circumstances in which a repeat offender was near the

premises again. The Court does not find that McShane

was objectively unreasonable in granting credence to

the phone caller over Logsdon. As the Wardlow Court

indicated, officers may arrest innocent people and still

be within the law. Illinois v. Wardlow, 528 U.S. 119,

126 (2000). This is one such case.

B. Defendants Imvoke the Doctrine of

Qualified Immunity

Officers Hains and McShane assert that they are

entitled to qualified immunity against the federal

claims lodged by Plaintiff (doc. 6). Under the doctrine

of qualified immunity, “government officials

performing discretionary functions generally are

4la

shielded from liability for civil damages insofar as

their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The focus of the inquiry ts

“whether the officer had fair notice that her conduct

was unlawful” and the concept of reasonableness “is

judged against the backdrop of the law at the time of

the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004)

The Sixth Circuit utilizes a three-part test to

analyze claims of qualified immunity: whether the

facts, viewed in the light most favorable to the

plaintiff, demonstrate that a constitutional or

statutory violation has occurred; whether the violation

concerned a clearly established right of which a

reasonable person would have known; whether the

plaintiff has offered sufficient evidence to indicate that

the alleged act was objectively unreasonable in light of

the clearly established constitutional or statutory

_ right. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.

2003).

The Court first must address whether Plaintiff

Logsdon has alleged facts which, when viewed in the

light most favorable to him, demonstrate the Officers’

conduct violated his First and Fourth Amendment

rights. As indicated above, the viability of Plaintiff's

claims relies on whether the Officers had probable

cause to arrest him. The Court has already found that

both Officer Hains and McShane had probable cause.

As such, the facts do not show that a constitutional

violation has occurred.

42a

However, even if the Court has erred in such

determination, the Court is confident that a reasonable

officer would not necessarily have understood that

arresting Logsdon would amount to a constitutional

violation, and Plaintiff has failed to offer evidence

showing that his arrest was objectively unreasonable.”

Qualified immunity shields an officer from suit when

she makes a decision that, even if constitutionally

deficient, reasonably misapprehends the law governing

the circumstances she confronted.” Jd. citing Saucier

v. Katz, 533 U.S. 194, 206 (2001). Here, Officer Hains

was clearly reasonable in arresting Logsdon, as

evidenced by the state trial court’s decision that in no

way threw into question the validity of the arrest and

which actually found Logsdon guilty of trespassing. As

for Officer McShane, the case is closer, but at worst,

McShane reasonably misapprehended the law

governing the circumstances he discovered. Indeed his

arrest of Logsdon may even fall within the “hazy

border” between the permitted and proscribed, but as

such, it is not a clearly established violation, and

McShane is entitled to qualified immunity.

C. Plaintiff's State Law Claims

Having thus dismissed Plaintiff's federal claims,

the Court finds that its conclusion that Defendants

had probable cause to arrest Logsdon similarly results

in the disposition of his state law claims for false

arrest, false imprisonment, and malicious prosecution.

Trussell v. General Motors Corp, 53 Ohio St.3d 142,

559 N.E.2d 732 (Ohio, 1990) (lack of probable cause

necessary element of the tort of malicious prosecution);

Bennett v. Ohio Dept. Of Rehabilitation and

Correction, 60 Ohio St.3d 107, 109, 573 N.E.2d 633

43a

(Ohio, 1991) (claim for false imprisonment requires

showing of confinement without lawful privilege);

Barnes v. Meijer Dept. Stores, No. CA2003-09-246,

2004 Ohio App. LEXIS 1528, *8 (Ohio Ct. App., April

5, 2004) (elements for false imprisonment and false

arrest are the same, both require showing of the

unlawfulness of the detention). Defendants lawfully

arrested Logsdon based on their finding of probable

cause that he had trespassed.

W. OTHER PENDING MOTIONS

This Order dismissing the case addresses the issues

raised by Plaintiff in both his Motion for Order to

Convert Defendants’ Motion to Dismiss to a

Proceeding for Summary Judgment and Publishing a

Discovery Order (doc. 10), and his Motion for Leave to

File a Supplemental Memorandum Addressing the

Preclusion Argument in Defendants’ Rule 12(b)(6)

Motion (doc. 11). As for the former motion, the Court

took judicial notice of the trial court transcript and

sentencing, which effectively resulted in _ its

disposition; as for the latter, the Court rejected

Defendant’s Preclusion argument. In any event, the

dismissal of this case terminates these pending

motions.

VI. CONCLUSION

Having reviewed this matter, the Court finds that

Plaintiff has not adequately alleged a constitutional

claim under any theory because the officers had

probable cause to arrest him for trespassing. The

Court further finds the Defendants are entitled to

qualified immunity, as Plaintiff has not alleged a

44a

clearly established constitutional violation under the

facts of this case.

Plaintiff is a regular at the clinic. Plaintiff is an

admitted chronic trespass offender. The reality is that

his actions set up the course of events underlying his

Complaint. The Court is not disposed to serve as a

forum for a litigant who sets up a conflict situation,

and then seeks to benefit from it by suing law

enforcement officers who arrive on the scene to ensure

order.

Accordingly, for the reasons indicated herein, the

Court GRANTS Defendants’ Motion to Dismiss (doc.

6), DENIES Plaintiffs Motion for Order to Convert

Defendants’ Motion to Dismiss to a Proceeding for

Summary Judgment and Publishing a Discovery Order

(doc. 10), and DENIES AS MOOT Plaintiff's Motion for

Leave to File a Supplemental Memorandum

Addressing the Preclusion Argument in Defendants’

Rule 12(b)(6) Motion (doc. 11).

SO ORDERED.

Dated: June 27, 2006

/s/S. Arthur Spiegel

S. Arthur Spiegel

United States Senior District Judge

45a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case Number: 1:05-cv-00541

[Filed June 27, 2006]

JOSEPH MICHAEL LOGSDON

Plaintiff(s)

Vv.

CHARLES HAINS, et al.

Defendant(s)

a a a a a

JUDGMENT IN A CIVIL CASE

Decision by Court: This action came to trial or

hearing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

... the Court GRANTS Defendants’ Motion to Dismiss

(doc. 6), DENIES Plaintiffs Motion for Order to

Convert Defendants’ Motion to Dismiss to a

Proceeding for Summary Judgment and Publishing a

Discovery Order (doc. 10), and DENIES AS MOOT

Plaintiffs Motion for Leave to File a Supplemental

Memorandum Addressing the Preclusion Argument in

Defendants’ Rule 12(b)(6) Motion (doc. 11).

6/27/06

46a

James Bonini, Clerk

s/Kevin Moser

Kevin Moser

Deputy Clerk

47a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-4085

[Filed December 13, 2007]

JOSEPH MICHAEL LOGSDON,

Plaintiff-Appellant,

Vv.

CHARLES HAINS AND

DANIEL MCSHANE

Defendants-Appellees.

Nee Ne eee eee ee”

ORDER

BEFORE: SUHRHEINRICH, CLAY, and ROGERS,

Circuit Judges.

The court having received a petition for rehearing

en banc, and the petition having been circulated not

only to the original panel members but also to all other

active judges of this court, and no judge of this court

having requested a vote on the suggestion for

rehearing en banc, the petition for rehearing has been

referred to the original! panel.

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The panel has further 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. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk