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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0745%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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.

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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

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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.

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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

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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.

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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

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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

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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

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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)).

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“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.

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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)

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“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”).

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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.

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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

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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).

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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.

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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

28a

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.

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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.

48a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0745%3A2. Public record. Not legal advice.