Kennedy v. City of Villa Hills, Ky.

Citations: 635 F.3d 210; 2011 U.S. App. LEXIS 5985; 2011 WL 1045445Docket: 09-6442

Court: Court of Appeals for the Sixth Circuit; March 24, 2011; Federal Appellate Court

Original Court Document: View Document

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Kenneth O. Kennedy, the plaintiff, engaged in a zoning dispute regarding the expansion of a nearby strip mall and confronted Joseph Schutzman, a police officer and building inspector, at the Villa Hills city building in May 2005. After Schutzman refused to speak with him and left the building, Kennedy expressed his frustration to other city workers, making derogatory remarks about Schutzman. In response, Schutzman returned and arrested Kennedy for disorderly conduct. Following the resolution of the criminal case in Kennedy's favor, he filed a lawsuit against multiple defendants, including Schutzman, alleging wrongful and retaliatory arrest. The district court granted summary judgment to all defendants except Schutzman, who appealed the denial of qualified immunity.

The court affirmed the denial of qualified immunity on Kennedy's Fourth Amendment wrongful arrest claim, stating that a reasonable officer could not have believed there was probable cause for the arrest based on Kennedy's description of events. Additionally, the court upheld the denial of qualified immunity on Kennedy's First Amendment retaliatory arrest claim, noting that a factfinder could conclude that Schutzman was motivated by Kennedy's personal insults. The case was remanded for further proceedings. Kennedy's background included living at his home in Villa Hills since 1989 and discovering a zoning issue when the strip mall announced its expansion, which prompted his conflict with Schutzman.

Kennedy made derogatory comments about zoning law violations, which were overheard by Schutzman, who confronted Kennedy and subsequently arrested him for disorderly conduct. Schutzman's citation described Kennedy as "highly agitated" but did not specify the volume of his remarks. Kennedy filed a lawsuit on May 8, 2006, which was initially dismissed due to his unresolved criminal case. After the criminal case was dismissed on June 18, 2007, Kennedy refiled, alleging wrongful arrest and various violations of constitutional and state laws. The defendants removed the case to federal court, where the City was granted summary judgment based on lack of evidence of prior misconduct by Schutzman. Schutzman sought qualified immunity, which the district court denied, citing unresolved factual disputes regarding the motivations for Kennedy's arrest. The court noted that a jury should determine whether the arrest was retaliatory or based on the content of Kennedy's speech. Schutzman appealed the denial of qualified immunity, and the appellate court has jurisdiction under the collateral-order doctrine. The review of the denial is conducted de novo, while factual disputes are assessed in favor of Kennedy, who carries the burden of proof regarding Schutzman's entitlement to qualified immunity.

In Pearson v. Callahan, the test for qualified immunity was clarified, requiring courts to first determine if the plaintiff's allegations constitute a violation of a constitutional right and then assess whether that right was 'clearly established' at the time of the defendant’s conduct. Courts now have discretion to address these prongs in any order suitable to the case.

In the appeal concerning a Fourth Amendment claim of wrongful arrest, Schutzman acknowledged a factual dispute regarding the noise made by Kennedy, which raises questions about whether a constitutional violation occurred. The critical issue is whether Kennedy's right to be free from wrongful arrest was clearly established. The court concluded that it was.

An arresting officer may claim qualified immunity if they reasonably believed the arrest was lawful based on the established law and available information, even if that belief was mistaken. For Kennedy to overcome this immunity, the violation of his right must be sufficiently clear that a reasonable official would recognize the action as unlawful. Courts’ varying formulations of legal standards do not negate the clarity of prohibitions against certain conduct, and previous cases do not need to mirror the current situation precisely to provide fair notice.

Preexisting law regarding qualified immunity is defined by binding precedents from relevant courts that address similar issues. The authority to make an arrest is primarily governed by state law, while federal law assesses the existence of probable cause. In this case, the Kentucky statute on disorderly conduct indicates that an officer could not reasonably believe there was probable cause to arrest Kennedy, as the definition of 'unreasonable noise' is context-dependent and does not encompass conduct causing alarm to a single individual.

The district court determined that the volume of Kennedy's speech was indeterminate, noting that his admissions during the deposition were limited. Kennedy acknowledged he "probably" shouted certain insults, which raises a potential factual dispute regarding whether he yelled or spoke loudly. Even if he did, the court suggested that such volume might not be deemed unreasonable. Under Kentucky law, specifically KRS 525.060, noise that only disturbs police officers does not constitute a criminal offense, as it does not pose a risk of public alarm. The First Amendment protects individuals’ rights to criticize police actions without fear of arrest, emphasizing that trained officers should exercise restraint. In Kennedy’s case, since only city employees were present and the building was closed to the public, the risk of public alarm was minimal. The court highlighted that prior Kentucky cases interpreting the unreasonable-noise statute were not analogous to Kennedy's situation, particularly contrasting it with Commonwealth v. Jones, where the circumstances involved public disruption. The court concluded that, when viewing the facts in favor of Kennedy, a reasonable officer could not have found probable cause for his arrest based on the evidence presented.

An officer lacked probable cause to arrest Kennedy based on the facts presented. In comparison to *Collins v. Commonwealth*, where the defendant's behavior constituted disorderly conduct due to offensive language used in a residential area at night, Kennedy's outburst occurred during the day at a city building and lacked the same potential for public alarm. Unlike Collins, Kennedy did not disturb third parties or pose a risk to individuals nearby. The court concluded that the unreasonable noise provision did not support a probable cause finding for Kennedy's conduct. Furthermore, the district court noted that the jury could perceive Kennedy's arrest as motivated by insults directed at Schutzman rather than unreasonable noise, making the inquiry into the officer's motives irrelevant for a wrongful arrest claim under the Fourth Amendment. Consequently, qualified immunity was deemed inappropriate, and the district court's denial of Schutzman’s summary judgment motion on this claim was affirmed.

In addressing the First Amendment retaliatory arrest claim, motive became significant. The elements of a retaliation claim include engagement in protected conduct, an adverse action that deters continued conduct, and a causal link between the two. Schutzman did not challenge the first element and conceded the second, leaving only the question of whether Kennedy's speech motivated the arrest. Kennedy must also show that his right to be free from retaliatory arrest was clearly established. Given the challenges in proving motive, circumstantial evidence may suffice to suggest retaliatory intent, shifting the burden to Schutzman to prove he would have acted similarly regardless of Kennedy's protected activity.

Barnes limits the application of Hartman to wrongful arrest claims only when arrest and prosecution occur simultaneously. In contrast, Kennedy's case presents a standard retaliation claim, as he was arrested by Schutzman before any prosecutorial action. The direct link between Schutzman’s alleged hostility and Kennedy's arrest indicates that Kennedy may not need to prove the absence of probable cause to succeed. If lack of probable cause is deemed a necessary element, Kennedy can still prevail due to Fourth Amendment analysis showing Schutzman lacked probable cause. Kennedy's speech, even if offensive, is protected under the First Amendment and does not qualify as 'fighting words.' Schutzman's argument regarding the ambiguity of his motives is not persuasive since Kennedy's deposition demonstrates a clear context where Schutzman reacted to Kennedy's insult with immediate arrest. The evidence suggests that Kennedy’s speech was a motivating factor in the arrest, supporting his claim. It is established that retaliatory arrests based on constitutionally protected speech violate Section 1983. The conclusion affirms the district court's denial of qualified immunity to Schutzman regarding Kennedy's wrongful and retaliatory arrest claims and remands for further proceedings.