Dean v. Byerley

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 8, 2004
• Docket: 02-1421
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Dean v. Byerley No. 02-1421 ELECTRONIC CITATION: 2004 FED App. 0008P (6th Cir.) File Name: 04a0008p.06 MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SUTTON, J. (pp. 29-45), delivered a separate dissenting opinion. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ E. STEPHEN DEAN, X - KAREN NELSON MOORE, Circuit Judge. This appeal Plaintiff-Appellant, raises an important question concerning the scope of an - - No. 02-1421 individual’s right to engage in targeted residential picketing v. - in the wake of the Supreme Court’s decision in Frisby v. > Schultz, 487 U.S. 474 (1988). We conclude that Frisby did , not place in question an individual’s clearly established right THOMAS K. BYERLEY, - Defendant-Appellee. - to engage in peaceful targeted residential picketing; rather it carved out an exception to this right, allowing the government N to prohibit such picketing through a narrowly tailored and Appeal from the United States District Court applicable time, place, or manner regulation. for the Western District of Michigan at Lansing. No. 01-00040—Gordon J. Quist, District Judge. Plaintiff-Appellant, E. Stephen Dean (“Dean”), appeals the district court’s order granting summary judgment to Argued: August 1, 2003 Defendant-Appellee, Thomas K. Byerley (“Byerley”), the Regulation Counsel and Director of Professional Standards Decided and Filed: January 8, 2004 Division for the State Bar of Michigan. Dean filed this action under 42 U.S.C. § 1983, alleging that Byerley violated Dean’s Before: DAUGHTREY, MOORE, and SUTTON, Circuit First Amendment rights during a confrontation that occurred Judges. while Dean was picketing in front of Byerley’s residence. Dean also brought state-law claims of assault and libel and _________________ asked the district court to exercise supplemental jurisdiction over these claims under 28 U.S.C. § 1367(a). The district COUNSEL court granted Byerley’s motion for summary judgment on the federal claim, holding that Dean failed to establish that ARGUED: Victoria V. Kremski, STATE BAR OF Byerley acted under color of state law. The district court also MICHIGAN, Lansing, Michigan, for Appellee. E. Stephen dismissed the state-law claims pursuant to 28 U.S.C. Dean, Piedmont, Missouri, pro se. ON BRIEF: Victoria V. § 1367(c)(3). Kremski, STATE BAR OF MICHIGAN, Lansing, Michigan, for Appellee. E. Stephen Dean, Piedmont, Missouri, pro se. Contrary to the district court, we conclude that Dean created a genuine issue of material fact as to whether Byerley

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acted under color of state law. We further hold that Dean had individuals did not picket in front of any other residence in a constitutionally protected right to engage in targeted the neighborhood. picketing on the street in front of Byerley’s residence. As result, we also reach the issue of whether Byerley is entitled Dean further alleges that while he and the hired individuals to an immunity defense. For the following reasons, we were picketing near Byerley’s residence, a confrontation REVERSE the district court’s grant of summary judgment occurred between Byerley and the picketers. Dean alleges and REMAND for further proceedings consistent with this that during the confrontation, Byerley told Dean “that because opinion. of his picketing the State Bar of Michigan and his home [Dean] would never be allowed to practice law in the state of I. BACKGROUND Michigan. [Byerley] then stated that he was going to have [Dean] arrested for picketing.” Second Am. Compl., Aug. 23, After graduating from the Thomas Cooley School of Law 2001, ¶¶ 13, 14. Dean also alleges that Byerley twice at age 60, Dean submitted his application for admission to the “intentionally drove his automobile directly towards [Dean].” State Bar of Michigan in December 2000. When Dean Id. ¶ 11, 18. After the confrontation, Dean and the hired delivered his application to the Executive Director of the State individuals left the area. Since the confrontation, Dean has Bar of Michigan, Dean expressed concern that it was not picketed near Byerley’s residence or the State Bar of incomplete and explained that he was unable to recall the Michigan building. addresses of all of his prior residences. Dean alleges that subsequently State Bar of Michigan employees repeatedly Two days after the incident, on March 29, 2001, Byerley requested additional information and refused to accept his sent Dean a letter pertaining to the confrontation. This letter explanation that he had done his best to obtain the required was written on State Bar of Michigan letterhead. In its information, but that he could not remember the addresses of entirety, the letter reads: residences he had lived in over twenty-five years ago. After this interaction with the State Bar of Michigan employees, but As you know, you and two other individuals were before the Bar made a decision regarding Dean’s bar outside of my private residence on Tuesday, March 27, application and before Dean took the bar exam, Dean began 2001 carrying signs. Although you have a right to picketing to publicize the treatment he received from the State exercise your First Amendment rights on public property, Bar of Michigan employees. Initially, Dean and two you do not have that right on private property. individuals hired by Dean picketed the State Bar of Michigan building. Then, on March 27, 2001, Dean and the hired On March 27 I verbally told you that you were on individuals extended their picketing to Byerley’s residence. private property and that if you did not immediately leave I would call the police. This letter memorializes On the morning of March 27, 2001, Dean and the hired that statement. You are put on formal notice that you are individuals picketed near Byerley’s residence. Dean alleges never welcome on my private property and that if you that he and the hired individuals only picketed on the street in trespass again I will ask that you be arrested. front of Byerley’s residence. Byerley, on the other hand, alleges that Dean and the hired individuals also picketed on Similarly, you are notified that you are not to enter the Byerley’s private property. The parties agree, however, that private property of any other State Bar of Michigan on the morning of March 27, 2001, Dean and the hired employee or officer. No. 02-1421 Dean v. Byerley 5 6 Dean v. Byerley No. 02-1421

I fully expect that you will not repeat your trespass. dismissed Dean’s state-law claims pursuant to 28 U.S.C. § 1367(c)(3). Def.’s Br. in Supp. of Mot. for Summ. J., Ex. E. II. ANALYSIS On April 4, 2001, Dean commenced a pro se action against Byerley in the United States District Court for the Western A. Standard of Review District of Michigan. In this action, Dean brought a § 1983 claim, alleging that Byerley violated his First Amendment This court reviews de novo the district court’s grant of rights by threatening that Dean would never practice law in summary judgment. Waters v. City of Morristown, 242 F.3d Michigan due to his picketing. Dean also brought two state- 353, 358 (6th Cir. 2001). Summary judgment is proper when law assault claims, alleging that Byerley committed assaults “there is no genuine issue as to any material fact and . . . the by twice driving his car at Dean, and a state-law libel claim, moving party is entitled to a judgment as a matter of law.” alleging that Byerley committed libel by sending to third Fed. R. Civ. P. 56(c). In ruling on a motion for summary parties copies of his letter to Dean, in which he stated that judgment, the court must view the evidence and draw all Dean had trespassed. In his complaint, Dean requested reasonable inferences in favor of the nonmoving party. approximately $2 million in compensatory and punitive Waters, 242 F.3d at 358 (citing Matsushita Elec. Indus. Co. damages and “equitable relief in the form of an order from v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). [the district court] that Defendant refrain from interfering Additionally, the judge must not weigh the evidence but with Plaintiff’s rights of free speech by threats of bodily harm rather must “determine whether there is a genuine issue for or by threat of arrest.” Second Am. Compl., Aug. 23, 2001, trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. ¶ 45. 242, 249 (1986)) (internal quotation marks omitted). There is a genuine issue for trial if there is sufficient “evidence on In August 2001, Byerley filed a motion for summary which the jury could reasonably find for the plaintiff.” Id. judgment. A magistrate judge concluded that summary (quoting Anderson, 477 U.S. at 252) (internal quotation marks judgment was proper based upon his determination that Dean omitted). did not have a constitutionally protected right to engage in targeted residential picketing. The magistrate judge B. Section 1983 Claim recommended that the district court grant summary judgment to Byerley on Dean’s § 1983 claim, and dismiss Dean’s state- 1. First Amendment law claims pursuant to 28 U.S.C. § 1367(c)(3). The district court granted Byerley’s motion for summary judgment, based Dean filed this action under 42 U.S.C. § 1983, claiming instead upon its determination that Byerley did not act under that Byerley violated Dean’s constitutionally protected right color of state law when he allegedly threatened that Dean to engage in free speech. “To prevail on a § 1983 claim, a would not become a member of the State Bar of Michigan due plaintiff must establish that a person acting under color of to his picketing. In making this determination, the district state law deprived the plaintiff of a right secured by the court noted that Byerley was exercising the same authority Constitution or laws of the United States.” Id. at 358-59. possessed by private individuals to have an individual Thus, to prevail on his § 1983 claim, Dean must prove that arrested for trespassing and to report an applicant’s conduct Byerley violated Dean’s constitutionally protected right to to the State Bar of Michigan. The district court also No. 02-1421 Dean v. Byerley 7 8 Dean v. Byerley No. 02-1421

engage in free speech and that Byerley acted under color of When construing a statute, we must look at the whole law state law. and effectuate the legislature’s intent. Richards v. United States, 369 U.S. 1, 11 (1962). As the Supreme Court has The parties dispute whether Dean had a constitutionally instructed, “We believe it fundamental that a section of a protected right to engage in targeted picketing on the street in statute should not be read in isolation from the context of the front of Byerley’s residence. The district court did not reach whole Act. . . . ‘[W]e must not be guided by a single sentence this issue and instead granted Byerley’s motion for summary or member of a sentence, but [should] look to the provisions judgment based upon its finding that Byerley did not act of the whole law, and to its object and policy.’”2 See id. under color of state law. On appeal, Dean argues that, in the (citations omitted); see also Owasso Indep. Sch. Dist. v. absence of an applicable time, place, or manner restriction, Falvo, 534 U.S. 426, 434 (2002). Therefore, the ban on Dean had a constitutionally protected right to engage in private residential picketing contained in § 423.9f must be targeted residential picketing. See Appellant’s Br. at 16. read in conjunction with the rest of the statutory section in Byerley counters that Dean did not have a constitutionally which it appears, and the Act as a whole. The Supreme Court protected right to engage in targeted residential picketing, has stated that “the meaning of statutory language, plain or regardless of whether there is an applicable time, place, or not, depends on context.” Holloway v. United States, 526 manner restriction. See Appellee’s Br. at 18-20. U.S. 1, 7 (1999) (internal quotation marks omitted); see also Textron Lycoming Reciprocating Engine Div., Avco Corp. v. We agree with the parties that there is no applicable UAW, 523 U.S. 653, 657 (1998). Reading the Act in its Michigan statute that bans all targeted residential picketing. entirety reveals that the ban on private residential picketing It is true that § 423.9f of the Michigan Code provides that applies only to labor picketing. The preamble declares that “[i]t shall be unlawful . . . to engage in picketing a private the Act regulates the behavior of employees and employers residence by any means or methods whatever: Provided, That engaged in labor disputes. Mich. Comp. Laws § 423 pmbl. picketing, to the extent that the same is authorized under The preamble states that the Act is constitutional provisions, shall in no manner be prohibited.” Mich. Comp. Laws § 423.9f. We conclude, however, that this AN ACT to create a commission relative to labor provision is not applicable to the instant case. This statutory disputes, and to prescribe its powers and duties; to section appears in a chapter of the Michigan Code regulating provide for the mediation and arbitration of labor labor and employment as part of the Employment Relations disputes, and the holding of elections thereon; to regulate Commission Act 176 of 1939 (“Act”).1 Id. No Michigan the conduct of parties to labor disputes and to require the court has issued a reported decision addressing the scope of parties to follow certain procedures; to regulate and limit the ban on private picketing contained in § 423.9f, so we must the right to strike and picket; to protect the rights and interpret this statutory section in order to determine whether privileges of employees, including the right to organize it is applicable to this case.

2 In fact, the Michigan Supreme Court has stated that the preamb le may be considered when interpreting the scope a nd purp ose of a statute. 1 Ma lcolm v. City of East Detroit, 468 N.W .2d 4 79, 4 84 (Mich. 19 91), cited Section 423 .9f was not part of the original Act, but was added as with app rova l in King v. Ford Motor Credit Co., 668 N.W.2d 357, 362-63 1947 Mich. Pub. Acts. 318 and became effective October 11, 1947. (Mich. Ct. App. 200 3). No. 02-1421 Dean v. Byerley 9 10 Dean v. Byerley No. 02-1421

and engage in lawful concerted activities; to protect the violation of the First and Fourteenth Amendments.3 rights and privileges of employers; to make certain acts Dissenting Op. at 41-42. Therefore, the dissent proposes that unlawful; and to prescribe means of enforcement and we read the statute broadly, as applicable to all targeted penalties for violations of this act. residential picketing. Id. We decline to interpret § 423.9f in the manner recommended by the dissent. While federal See id. Additionally, the other sections of the Act govern courts often narrowly construe statutes in order to avoid employment relations by creating an employment relations striking them down on their face, we may not broadly commission, prescribing rules for collective bargaining and construe a state statute in order to prevent the same result. It labor disputes, and defining unfair labor practices. See would be tantamount to judicial legislation and would raise generally id. § 423. Finally, the other clauses of § 423.9f serious federalism concerns if we, a federal court, were to make it clear that the statutory section applies only to labor broadly construe § 423.9f to criminalize conduct that the picketing. Section 423.9f provides: Michigan Legislature did not make criminal.4 It shall be unlawful (1) for any person or persons to hinder or prevent by mass picketing, unlawful threats or 3 force the pursuit of any lawful work or employment, The dissent states that “the M ichigan Legislature sure ly could have taken the view that a statute that proscribes all residential picketing on a ll (2) to obstruct or interfere with entrance to or egress from topics of speech was not only fair — because it would avoid favoring one any place of employment, (3) to obstruct or interfere with subject of speech over another — but it was the only choice ava ilable .” free and uninterrupted use of public roads, streets, Dissenting Op. at 41 (emph asis added). The dissent reasons that under highways, railways, airports, or other ways of travel or Carey v. Brown, 447 U.S. 455 (1980), and Frisby v. Schultz, 487 U.S. 474 conveyance, or (4) to engage in picketing a private (1988), a law that bans o nly reside ntial labo r picke ting wou ld be unco nstitutional. Carey and Frisby, howe ver, were decided more than residence by any means or methods whatever: Provided, thirty years after § 423.9f was enacted. That picketing, to the extent that the same is authorized under constitutional provisions, shall in no manner be 4 In fact, the Michigan S upreme Court has stated that “[b]ecause prohibited. Violation of this section shall be a courts are wary of creating crim es, penal statutes are to be strictly misdemeanor and punishable as such. construed.” People v. Gilbert, 324 N.W .2d 834, 843 (Mich. 1982 ). The dissent characterizes his effort to read § 423.9f broadly as a Id. (emphases added). The title of the Act, the preamble, the refusal to accept a narrowing interpretation of the this provision. other sections of the Act, and the surrounding clauses in the Dissenting Op. at 42. As our analysis makes clear, § 423.9 only applies to labor picke ting. M oreo ver, no ne of the cases cited b y the dissent particular statutory section under consideration all clearly support his effort to read § 423.9f in a manner that would criminalize indicate that § 423.9f applies only to only labor picketing and more conduct than is actually prohibited by the statute. not to all private residential picketing. In Frisby v. Schultz, 485 U.S. 474, 481-82 (1988), the Supreme Co urt accepted the district court’s construction of the antipicketing ordinance at The dissent contends that if § 423.9f is read as applicable issue as not including an implied exception for labor picketing. The only to labor picketing, then the statute is unconstitutional, as ordinance banned all residential picketing, without exce ption. Schultz v. Frisby, 619 F. Supp . 792, 794 (E.D . Wis. 1985). An earlier version of the it would amount to a content-based prohibition of speech, in ordinance did in fact contain an exception for labor picketing, as an attempt to comply with a Wisconsin statute that specifies picketing is a perm issible labor activity. The city, however, repealed the earlier version of the ordinance–containing the exception for labor picketing–due to concerns that the ordinance violated the First Amendment by No. 02-1421 Dean v. Byerley 11 12 Dean v. Byerley No. 02-1421

Furthermore, because § 423.9f is not applicable to the instant case, it would be overreaching for us to comment on its discriminating against sp eech based upon its co ntent. Schultz v. Frisby, constitutionality at this time. 807 F.2d 1339, 1342 (7th Cir. 1986). The district court rejected the plaintiffs’ argument that the newer version of the ordinance m ust contain Dean was not engaged in labor picketing when the an implied exception for labor picketing in order to comply with the confrontation at issue occurred; therefore, § 423.9f does not W isconsin statute. Sch ultz, 619 F . Supp. at 79 6. The district court apply to Dean’s conduct. The dissent asserts that Dean was pointed out that the legislative history clearly indicated that the ordinance did not co ntain such an exception. Id. The Supreme Court’s acceptance engaged in labor picketing because he “was picketing about of this refusal to imply an exception to the antipicketing ordinance did not a matter related to labor and employment.” Dissenting Op. at increase the scope of conduct prohibited by the ordinance, for the 38. Dean picketed to protest the treatment that he received ordinance already banned all targeted residential picketing. from the State Bar of Michigan employees. That Dean’s In Boo s v. Barry, 485 U.S. 312, 332-34 (1988), the Supreme Co urt ability to obtain a law license in Michigan may affect his held that two provisions of the District of Columbia Code d id not combine to create an Equal Protection Clause violation. Section 22-1115 limited future employability does not convert his protest into labor individuals’ right to congregate within 500 feet of an emba ssy regardless picketing. The dissent cites no authority for his overly of the message they sought to convey, and § 22-1116 stated that § 22- expansive definition of labor picketing. 1115 did no t prohibit labo r picke ting. Id. at 333 -34. The Supreme Court accepted a narrowing constructio n of § 22-1115 as only prohibiting Byerley has not identified any other Michigan law that bans “congregations that threaten the security or peace of an embassy.” Id. at residential picketing. Thus, proper resolution of this dispute 333. Therefore, the Supreme Court construed § 22-1115 as prohibiting individuals from engaging in violent congregations within 500 feet of an turns on whether there is a constitutionally protected right to emb assy, regardless of the message they sought to convey, and allowing engage in targeted residential picketing in the absence of an all peaceful congregations. The Supreme Court then determined that applicable time, place, or manner restriction. § 22-11 16 does not protect violent labor congregations; therefore, the statutes did not treat labor and nonlabor picketing differently. Id. The Over sixty years ago, the Supreme Court declared that use Supreme Court’s refusal to read the labor picketing exception contained of the streets for assembly and communication is a right held in § 22 -1116 broadly so as to authorize violent labor picketing did not increase the scope of conduct prohibited by the ordinance, for § 22-1115 by U.S. citizens pursuant to the First Amendment. Hague v. already banned all violent congregations. Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939). The Finally, in United States v. Seeger, 380 U.S. 163, 165-66 (19 65), the Supreme Court has also declared that “as a general matter Supreme Court broadened the conscientious-objector exception contained peaceful picketing and leafletting are expressive activities in the Universal Military Training and Service Act. Interpreting the Act involving ‘speech’ protected by the First Amendment.” in this manner actually lessened the rang e of co nduc t deem ed criminal, rather than increased it. United States v. Grace, 461 U.S. 171, 176 (1983). Although The dissent cites these cases as supp ort for his effort to read § 423.9f the Supreme Court has recognized that the government may broadly, in a manner that would criminalize more cond uct than is actually regulate this use of the streets to ensure general comfort and prohibited by the statute. The Suprem e Co urt, how ever, has expressly order, the Court has warned that the government must not use held that retroactive application o f judicially expanded criminal statutes such regulations to abridge or deny that right. Hague, 307 violates due p rocess. Bouie v. City of Colum bia, 378 U.S. 347, 352-54 (1964); see also R ogers v. Te nnessee, 532 U.S. 451, 45 6-460 (200 1). U.S. at 516. The Supreme Court considers streets and Nothing in the cases cited by the dissent indicates that the Supreme Court sidewalks to be public fora for purposes of First Amendment has retreated from this position. Dean is not being prosecuted for violating § 423 .9f; therefore, this case does not implicate the due process concerns present in Bouie and Rog ers. Nevertheless, Bouie and Rog ers strongly counsel against instituting a practice of broadly interpreting criminal statutes so as to avoid constitutional infirmity. No. 02-1421 Dean v. Byerley 13 14 Dean v. Byerley No. 02-1421

scrutiny, and the Court has limited the government’s ability Appellee’s Br. at 18-20. For example, Byerley quotes the to restrict First Amendment rights in such public fora. Grace, following passage from Frisby: 461 U.S. at 177. The type of focused picketing prohibited by the In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Brookfield ordinance is fundamentally different from Court discussed the limits on the government’s ability to more generally directed means of communication that regulate use of streets for assembly and communication. The may not be completely banned in residential areas. In Court upheld against a facial challenge an ordinance adopted such cases “the flow of information [is not] into . . . by Brookfield, Wisconsin “that completely bans picketing household[s], but to the public.” Here, in contrast, the ‘before or about’ any residence.” Id. at 476. The Court picketing is narrowly directed at the household, not the admonished that streets are traditional public fora; therefore, public. The type of picketers banned by the Brookfield regulations of assembly and communication on streets must ordinance generally do not seek to disseminate a message satisfy the appropriate level of scrutiny. Id. at 481. As the to the general public, but to intrude upon the targeted Court stated, resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader In these quintessential public for[a], the government may communicative purpose, their activity nonetheless not prohibit all communicative activity. For the State to inherently and offensively intrudes on residential enforce a content-based exclusion it must show that its privacy. regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that Appellee’s Br. at 19 (quoting Frisby, 487 U.S. at 486) end. . . . The State may also enforce regulations of the (citations omitted). Byerley acknowledges that Frisby does time, place, and manner of expression which are content- not preclude “targeted residential picketing in the absence of neutral, are narrowly tailored to serve a significant an ordinance or state law prohibiting it,” but nonetheless government interest, and leave open ample alternative asserts that targeted residential picketing is not channels of communication. constitutionally protected. Appellee’s Br. at 20. In essence, Byerley argues that if targeted picketing “may be banned Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ outright under First Amendment precedent, then the activity Ass’n, 460 U.S. 37, 45 (1983)). The Court adopted a is inherently unworthy of constitutional protection.” Id. narrowing construction of the ordinance at issue and concluded that it only banned targeted picketing directed at a Contrary to Byerley’s argument, Supreme Court precedent single residence. Id. at 482-83. The Court then held that the makes it clear that citizens have the constitutional right to use ordinance, narrowly construed, satisfied the scrutiny streets for assembly and communication. See Hague, 307 applicable to time, place, and manner regulations. Id. at 487- U.S. at 515-16. Although the government may restrict that 88. right through appropriate regulations, that right remains unfettered unless and until the government passes such Byerley points to passages in Frisby discussing the regulations. See id. at 516. While there are passages in government’s interest in protecting the privacy of the home to Frisby that discuss the government’s interest in protecting the support his argument that there is no constitutionally privacy of the home, Frisby does not support the proposition protected right to engage in targeted residential picketing. that the right to residential privacy automatically trumps the No. 02-1421 Dean v. Byerley 15 16 Dean v. Byerley No. 02-1421

right to engage in targeted residential picketing. See Frisby, picketing and Byerley threatened that he would have the 487 U.S. at 486-88. Rather, those passages in Frisby address picketers arrested.5 A reasonable finder of fact could one of the requirements for upholding time, place, and conclude that such conduct, if it actually occurred, would manner regulations, i.e., that the regulations “serve a “deter a person of ordinary firmness” from the exercise of the significant government interest.” Id. at 481 (quoting Perry, right at issue. See id. Additionally, a reasonable finder of 460 U.S. at 45) (internal quotation marks omitted). fact could conclude that the timing of events demonstrates a Therefore, we conclude that the First Amendment protects the causal connection between Dean’s engaging in protected right to engage in peaceful targeted residential picketing in conduct and Byerley’s retaliation. Because Michigan has not the absence of a narrowly tailored time, place, or manner passed an applicable time, place, or manner restriction, Dean regulation that meets the requirements laid down in Frisby. had a constitutionally protected right to engage in peaceful targeted picketing in front of Byerley’s residence. Retaliation 2. Retaliation Claim against Dean for exercising that right would violate Dean’s First Amendment rights. Thus, Dean has presented evidence Dean has created a genuine issue of material fact as to supporting the first requirement of his § 1983 claim. whether Byerley violated Dean’s First Amendment rights during the March 27, 2001 confrontation. While Dean does 3. Under Color of State Law not explicitly label his claim as one of retaliation, his allegation that Byerley threatened that Dean would never To satisfy the second requirement of his § 1983 claim, practice law in the state of Michigan due to his picketing and Dean must show that Byerley acted under color of state law. his allegation that Byerley threatened to have the picketers The Supreme Court has held that “[t]he traditional definition arrested make it clear that Dean is asserting a garden-variety of acting under color of state law requires that the defendant retaliation claim. This court has held that a § 1983 claim can in a § 1983 action have exercised power ‘possessed by virtue be predicated upon a state official’s retaliation against an of state law and made possible only because the wrongdoer is individual for exercising his or her First Amendment rights. Thaddeus-X v. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999) 5 (en banc). “A retaliation claim essentially entails three The dissent contends that these threats do not constitute sufficient elements: (1) the plaintiff engaged in protected conduct; adverse action because Byerley sent a letter to Dean two days after the (2) an adverse action was taken against the plaintiff that incident, which stated that Byerley only objected to Dean picketing on Byerley’s private property, and because during a hearing on August 15, would deter a person of ordinary firmness from continuing to 2001, Dean stated that he withdrew his bar application voluntarily and not engage in that conduct; and (3) there is a causal connection due to fear that Byerley would b lock it. Dissenting Op . at 44-45. T hese between elements one and two — that is, the adverse action develop ments, which occurred after the March 27, 2001 incident, are not was motivated at least in part by the plaintiff’s protected controlling because at the time Dean cea sed picketing, he could have conduct.” Id. at 394. reaso nably thought that Byerley would carry out these threats. Mo reover, the dissent’s assertion that the March 29, 2001 letter removed any fear of further adverse action is a factual finding that this court should not make When the confrontation occurred, Dean was allegedly in the first instance. Finally, the second prong of our three-part test for picketing on the street in front of Byerley’s residence, which evaluating retaliation claims requires the plaintiff to allege that “an is conduct protected by the First Amendment. Dean alleges adverse action was taken against the plaintiff that would deter a person of that during the confrontation, Byerley threatened that Dean ordinary firmness from continuing to engage in that conduct.” Thaddeu s- would never practice law in the state of Michigan due to his X v. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999) (en banc). This prong has been satisfied here. No. 02-1421 Dean v. Byerley 17 18 Dean v. Byerley No. 02-1421

clothed with the authority of state law.’” West v. Atkins, 487 controlling issue is whether Byerley possessed state authority U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. and whether Byerley purported to act under that authority. 299, 326 (1941)). The Supreme Court has further held that See id. “[s]tate employment is generally sufficient to render the defendant a state actor.” Id. at 49 (quoting Lugar v. Byerley possessed state authority pursuant to his status as Edmondson Oil Co., 457 U.S. 922, 936 n.18 (1982)). Thus, Regulation Counsel for the State Bar of Michigan.6 Dean has “[i]t is firmly established that a defendant in a § 1983 suit acts presented evidence that Byerley purported to act under that under color of state law when he abuses the position given to state authority. In his complaint, Dean alleged that during the him by the State.” Id. at 49-50 (citing Monroe v. Pape, 365 March 27, 2001 confrontation, Byerley stated “that because U.S. 167, 172 (1961)). of [Dean’s] picketing the State Bar of Michigan and [Byerley’s] home [Dean] would never be allowed to practice The district court granted Byerley’s motion for summary law in the state of Michigan.” Second Am. Compl., Aug. 23, judgment based upon its finding that Byerley did not act 2003, ¶ 13. Then, on March 29, 2001, Byerley sent a letter on under color of state law. The district court found that “[i]n State Bar of Michigan letterhead, pertaining to the March 27, expressing his anger towards [Dean’s] conduct, [Byerley] was 2001 confrontation. In that letter, Byerley stated that if Dean not performing some duty of his office or exercising his trespassed on Byerley’s property again, Byerley would official responsibilities. Rather, [Byerley’s] conduct was that request that Dean be arrested. The letter further stated that of a private citizen.” Dist. Ct. Op. at 3. The district court Dean was “not to enter the private property of any other State found that Byerley merely asserted his right to seek to have Bar of Michigan employee or officer.” Def’s Br. in Supp. of Dean arrested for trespassing on private property and his right Mot. for Summ. J., Ex. E. to report a complaint to the State Bar of Michigan regarding Dean’s character and fitness. The district court concluded Additionally, Byerley has never explicitly denied Dean’s that all persons possess these rights, and thus that Byerley did allegation that Byerley acted under color of state law. In his not need state authority to act as he did. answer, Byerley responded to Dean’s allegation that Byerley acted under color of state law by admitting “that Plaintiff’s The Supreme Court has held, however, that a defendant in allegations against Defendant arise from Defendant’s status a § 1983 action may still act under color of state law even as Regulation Counsel for the State Bar of Michigan.” though a private citizen could have taken the same action as Answer to First Am. Compl., June 20, 2001, ¶ 6. In neither that taken by the defendant. Griffin v. Maryland, 378 U.S. Byerley’s motion for summary judgment and his brief in 130, 135 (1964). More specifically, the Supreme Court has held that “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. 6 It is irrelevant that he might have taken the same action had In his brief in support of his mo tion for summ ary jud gment, Byerley adm its that the State Bar of Michigan is an agency of the Michigan he acted in a purely private capacity or that the particular Supreme Court. Def.’s Br. in Supp . of M ot. for Summ . J. at 12. action which he took was not authorized by state law.” Id. Additiona lly, this court has concluded that the State Bar of Michigan is a Thus, the fact that Byerley could have made a private report state agency in similar circumstances. Dubuc v. Michigan Bd. of Law on Dean’s character or privately sought a trespass action is Exam ’rs, 342 F.3d 6 10, 615 (6th Cir. 2003 ) (holding State Bar of not controlling, and it was inappropriate for the district court M ichigan is a state agency when it acts “for purposes of promulgating rules relating to Bar mem bersh ip and determining whethe r to grant or to grant summary judgment on that basis. Rather the deny Bar applications”). No. 02-1421 Dean v. Byerley 19 20 Dean v. Byerley No. 02-1421

support of that motion nor his two supplemental briefs in 1998). First, “[f]or officials whose special functions or support of that motion does Byerley deny that he was acting constitutional status requires complete protection from suit, under color of state law. Finally, on appeal, Byerley does not we have recognized the defense of ‘absolute immunity.’” even argue that he was not acting under color of state law.7 Harlow, 457 U.S. at 807. For example, the Supreme Court Because Dean presented evidence demonstrating that Byerley has recognized the defense of absolute immunity for acted under color of state law and because Byerley has never legislators performing legislative functions, judges argued to the contrary, the district court should not have performing judicial functions, prosecutors performing granted summary judgment based upon its finding that prosecutorial functions, and the President of the United States Byerley did not act under color of state law. in his official capacity. Id.; see also Holloway v. Brush, 220 F.3d 767, 774-75 (6th Cir. 2000) (en banc). The defense of C. Immunity absolute immunity provides a shield from liability for acts performed erroneously, even if alleged to have been done 1. Absolute Immunity maliciously or corruptly. Watts v. Burkhart, 978 F.2d 269, 272 (6th Cir. 1992) (en banc); see also Lomaz, 151 F.3d at Even if the plaintiff in a § 1983 claim establishes that the 497. Second, “[g]overnment officials who perform defendant violated his federal rights under color of state law, discretionary functions are generally entitled to qualified the defendant may raise an immunity defense. See Harlow v. immunity and are protected from civil damages so long as Fitzgerald, 457 U.S. 800, 806-07 (1982).8 The Supreme ‘their conduct does not violate clearly established statutory or Court has recognized two kinds of immunity defenses. Id. at constitutional rights of which a reasonable person would have 807; see also Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir. known.’” Pray v. City of Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995) (quoting Harlow, 457 U.S. at 818); see also Toms v. Taft, 338 F.3d 519, 524 (6th Cir. 2003). The district court 7 Byerley’s only argument on appeal regarding whether he was acting did not address these immunity defenses because it concluded under co lor of state law is as follows: that Dean failed to establish a § 1983 claim.9 II. Was Defendant Acting Under Color of State Law? Dean is correct that Byerley acknowledged in his answer Although Byerley does not expressly argue on appeal that that the only reason Dean was at Byerley’s house on the morning of March 27, 2001 was because of his status as Regulation he is entitled to the defense of absolute immunity, he does Counsel for the State Bar, and that Dean’s allegations arose from rely on case law addressing the scope of absolute immunity the events of that morning. and quotes a long passage from one of those cases pertaining Even if Byerley was acting under color of state law, Dean’s to absolute immunity. 10 Appellee’s Br. at 29. Also, Byerley claims would be barred by governm ental immunity. Appellee’s Br. at 25.

8 9 In his appellate brief, Byerley lumps together his assertions that he The district co urt held that Dean failed to establish that Byerley is entitled to Eleventh Amendment immunity, absolute immunity, and acted under color of state law. qualified immunity. Because Dean sued Byerley in Byerley’s individual 10 capacity, Eleventh Amendment immunity does not shield Byerley from On page 29 of his appellate brief, Byerley quotes the following Dean’s dam ages claims. B yerley’s asse rtions that he is entitled to passage from Watts v. Bu rkhart: abso lute immunity and qualified immunity — which when app licable The immunity of participants in the judicial process stems not protect public officials sued in their individual capacity from damages from the “location” of the jud icial process in one branch of claims — will be discussed in more detail in Sections II.C.1 and C.2. government or another . . . but from the “characteristics” of the No. 02-1421 Dean v. Byerley 21 22 Dean v. Byerley No. 02-1421

expressly raised the defense of absolute immunity during the from liability in § 1983 actions because state-law immunities hearing on his motion for summary judgment, after which the cannot be used to defeat § 1983 claims. Dubuc v. Michigan parties both submitted supplemental briefs on the issue. Bd. of Law Exam’rs, 342 F.3d 610, 617 (6th Cir. 2003). Summ. J. Hr’g Tr. at 5-7; R. at 56-57. Because Byerley may Nonetheless, Byerley argued he is entitled to absolute be asserting the defense of absolute immunity, we will immunity because the “Supreme Court of Michigan delegated address the issue. to the State Bar of Michigan the responsibility to investigate the Character and Fitness of all applicants to the Bar . . . [and “The burden of justifying absolute immunity rests on the t]his is an inherently judicial function.” Def.’s Second official asserting the claim.” Harlow, 457 U.S. at 812; see Supplemental Br. in Supp. of Mot. for Summ. J. at 2. also Lomaz, 151 F.3d at 497. Therefore, Byerley had the burden of proving that he is entitled to absolute immunity. The cases cited by Byerley in his appellate brief are During the hearing on Byerley’s motion for summary relevant to the scope of Byerley’s immunity in this action, but judgment, Byerley argued that “[t]he Supreme Court of the they do not support his assertion that he is entitled to the State of Michigan in Rule 15 of the rules concerning the State defense of absolute immunity. Appellee’s Br. at 29 (citing Bar of Michigan, granted absolute immunity to state bar staff Watts, 978 F.2d 269; Ginger v. Circuit Court, 372 F.2d 621 for conduct arising out of the performance of their duties.” (6th Cir.), cert. denied, 387 U.S. 935 (1967)). In both Watts Summ. J. Hr’g Tr. at 5. Later, in his supplemental brief, and Ginger, this court held that the absolute immunity that Byerley conceded that state rule 15 is irrelevant to the scope protects judicial officers engaged in judicial functions also of his immunity in this action because the scope of immunity protects other state officials engaged in adjudicative in a § 1983 action is determined by federal law. Def’s Second functions. Watts, 978 F.2d at 272-73; Ginger, 372 F.2d at Supplemental Br. in Supp. of Mot. for Summ. J. at 12; see 625. The holdings in both cases, however, were predicated also Howlett v. Rose, 496 U.S. 356, 376 (1990); Wood v. upon findings that the defendant state officials were engaged Strickland, 420 U.S. 308, 314 (1975). Byerley was correct to in adjudicative functions. See Watts, 978 F.2d at 275-76 retreat from his reliance on state rule 15 because the Supreme (holding that members of the Tennessee Board of Medical Court has held that state-law immunities are irrelevant in Examiners were entitled to absolute immunity for actions § 1983 actions. Howlett, 496 U.S. at 376. Furthermore, in a taken during proceedings to suspend plaintiff’s medical recent decision, this court held explicitly that state rule 15 license because the suspension proceedings were adjudicative does not immunize employees of the State Bar of Michigan in nature and appropriate procedural safeguards were in place); Ginger, 372 F.2d at 625 (holding that members of the Grievance Committee of the State Bar of Michigan were entitled to absolute immunity for actions taken during process. One of these characteristics is that the controversies proceedings to revoke plaintiff’s law license because the with which the process deals are often “intense,” and the loser, disbarment proceedings were adjudicative in nature). When given an op portunity to do so, will frequently charge the participants in the process with unconstitutional animus; deciding whether state officials are entitled to absolute “[a]bsolute immunity is thus necessary to assure that judges, immunity, courts must conduct a functional analysis. advocates, and witnesses can perform their respective functions Holloway, 220 F.3d at 774; Lomaz, 151 F.3d at 497. without harassment or intimidation.” “A bsolute imm unity is Immunity is determined by the “nature of the function desig ned to free the judicial process from the hara ssmen t and performed, not the identity of the actor who performed it.” intimidation asso ciated with litigation.” Appellee’s Br. at 29 (quoting Wa tts, 978 F.2d at 273) (citations omitted). No. 02-1421 Dean v. Byerley 23 24 Dean v. Byerley No. 02-1421

Holloway, 220 F.3d at 774 (quoting Buckley v. Fitzsimmons, dealt with the judge in her adjudicative capacity. Id. at 260. 509 U.S. 259, 269 (1993)) (internal quotation marks omitted). However, we also determined that absolute immunity did not shield the judge from liability for her statements to the media In Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), because speaking to the media about a litigant does not cert. denied, 523 U.S. 1075 (1998), we discussed the factors preserve the integrity of the judicial process, and instead that courts must consider when determining whether an act is merely informs the public of the judge’s views. Id. at 261. judicial in nature, and thus protected by absolute immunity. 11 First, the court must consider whether the function is In this case, the actions Byerley allegedly took in response normally performed by an adjudicator. Id. at 255. However, to Dean’s picketing are not functions normally performed by even if an act is not normally performed by an adjudicator, an adjudicator nor are they related to functions normally the court should look to the act’s relation to a general function performed by an adjudicator. Although Byerley was normally performed by an adjudicator. Id. “This functional employed as Regulation Counsel for the State Bar of approach examines the ‘nature’ and ‘function’ of the act, not Michigan and although the Bar is merely an extension of the the act itself.” Id. Second, the court must consider whether Michigan Supreme Court for purposes of deciding whether to the plaintiff dealt with the defendant in the defendant’s grant or deny Bar applications, it is clear on the record as it adjudicative capacity. now stands that Byerley was not performing an adjudicative function during the March 27, 2001 confrontation.12 Dean In Barrett, this court was faced with the question of alleges that in response to his picketing, Byerley threatened whether a judge was entitled to absolute immunity from that Dean would never practice law in the state of Michigan liability for actions she took in response to a litigant’s public and threatened to have the picketers arrested. Neither of these criticism of her. Id. at 253. The judge sent letters to actions are related to the decision of whether to grant or deny prosecutors stating that the litigant was harassing her. Those Dean’s Bar application. While reporting an applicant’s letters prompted an investigation of the litigant. The judge conduct to the police and the Bar might be related to the also made statements to the news media accusing the litigant functions normally performed by an adjudicator, the actions of stalking her. We determined that absolute immunity Dean alleges that Byerley took were of a different function shielded the judge from liability for her letters to the and nature. Byerley’s alleged actions were in the form of a prosecutors because the judge was attempting to preserve the threat for the purpose of intimidating Dean so that Dean integrity of the judicial process, which is a function related to would cease picketing. Byerley’s alleged actions were not in those normally performed by an adjudicator. Id. at 258-59. the form of a statement to the police for the purpose of Furthermore, the litigant’s harassment stemmed from the reporting conduct by Dean that was unlawful, or in the form judge’s adverse decision against him; therefore, the litigant of a statement to the Bar for the purpose of reporting conduct by Dean that reflected adversely on Dean’s character. Because Byerley has failed to demonstrate in any way that he 11 Although Barrett addresses the scope of the absolute immunity that shields judges engaged in judicial functions, its analysis also applies to the scope of the absolute immunity that shields other public officials engaged 12 in adjudicative functions. See Barrett, 130 F.3d at 255-57 . This is Since we conclude that Byerley was not performing an adjudicative because the scope o f absolute immunity depends upon the function function during the March 27, 2001 confrontation, we do not need to performed by the d efendant, not the identity of the defendant. Watts v. reach the question of whether Dean de alt with B yerley in an adjudicative Burkhart, 978 F.2d 26 9, 275-76 (6th Cir. 1992) (en banc). capacity. No. 02-1421 Dean v. Byerley 25 26 Dean v. Byerley No. 02-1421

was engaged in an adjudicative function when he allegedly immunity questions at the earliest possible stage of the retaliated against Dean, Byerley is not entitled to summary litigation, “[s]ummary judgment is not appropriate if there is judgment based upon the defense of absolute immunity. a genuine factual dispute relating to whether [Byerley] committed acts that allegedly violated clearly established 2. Qualified Immunity rights.” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir.), cert. denied, 534 U.S. 1071 (2001); Mays v. City of Dayton, Byerley has expressly raised the defense of qualified 134 F.3d 809, 813 (6th Cir.), cert. denied, 524 U.S. 942 immunity. Appellee’s Br. at 27. Byerley argues that his (1998). alleged threats during the March 27, 2001 confrontation did not violate Dean’s clearly established federal rights because On appeal, Dean argues that Byerley’s alleged actions targeted residential picketing is not a constitutionally during the March 27, 2001 confrontation violated his clearly protected activity. In Byerley’s view, Frisby established that established First Amendment rights. Appellant’s Br. 16-19. there is no right to engage in targeted residential picketing. In his complaint, Dean alleged that Byerley threatened that Appellee’s Br. at 28. Although Dean does not expressly Dean would never practice law in the state of Michigan due refute Byerley’s defense of qualified immunity in his to his picketing, and that this threat referred to Dean’s appellate brief, Dean repeatedly argues that, in the absence of picketing in front of Byerley’s house as well as to Dean’s a time, place, or manner restriction, citizens have a picketing at the State Bar of Michigan building. In his constitutionally protected right to engage in targeted complaint, Dean also alleged that Byerley threatened to have residential picketing. Also, during the hearing on Byerley’s the picketers arrested. At the hearing on Byerley’s motion for motion for summary judgment, Dean expressly refuted summary judgment, Dean presented a sworn deposition from Byerley’s defense of qualified immunity. Summ. J. Hr’g. Tr. Larry Doolittle (“Doolittle”), one of the hired picketers, at 14-18. detailing the March 27, 2001 confrontation.13 In his complaint, Dean further alleged that Byerley’s threats chilled This court conducts a three-step analysis of qualified his desire to continue picketing and that he has not picketed immunity claims. near Byerley’s residence or the State Bar of Michigan building since the confrontation. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation 13 In a sworn dep osition taken on June 19, 2001, Doolittle testified involved a clearly established constitutional right of about the March 27, 20 01 confrontation. Although Doolittle did not hear which a reasonable person would have known. Third, we Byerley’s alleged statement that Dean would never practice law due to his determine whether the plaintiff has offered sufficient picketing, Doolittle did confirm several aspects of Dean’s version of the evidence to indicate that what the official allegedly did confrontation. Doolittle Dep., June 19 , 200 1, at 28. More specifically, was objectively unreasonable in light of the clearly Do olittle stated that De an and the two hired individuals only picketed on the street, that Byerley almost hit Dean with his car, and that Byerley established constitutional rights. threatened to have the picketers arrested if they did not leave. Id. at 19- 20, 31. Doolittle also testified that during the confrontation, he heard Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quotation Byerley whisper something to Dean and that afterwards, Dean exclaimed, omitted). Although the policy of this circuit is to resolve “Did you hear what he said? You’ll never practice law in Michigan as long as you’re picketing.” Id. at 28. No. 02-1421 Dean v. Byerley 27 28 Dean v. Byerley No. 02-1421

As discussed in Part II. B. 1. above, Dean had a the State Bar of Michigan building. Finally, Byerley’s constitutionally protected right to engage in peaceful targeted March 29, 2001 letter, which clarified that Byerley only residential picketing, in the absence of an applicable time, objected to Dean’s picketing on Byerley’s private property, place, or manner regulation, and retaliation against Dean for could not undo the previous constitutional violation. Because exercising that right would violate Dean’s First Amendment Dean demonstrated that he had a clearly established rights. Therefore, Dean has satisfied the first hurdle constitutional right and pointed to evidence that shows that necessary to survive summary judgment based upon qualified Byerley violated that right, Byerley is not entitled to summary immunity by pointing to evidence showing that Byerley judgment based upon the defense of qualified immunity. 14 violated Dean’s First Amendment rights. The Sixth Circuit precedent holding that a § 1983 claim can be predicated upon III. CONCLUSION retaliation for exercising First Amendment rights and the Supreme Court precedent holding that peaceful picketing is Dean had a constitutionally protected right to engage in constitutionally protected predate the March 27, 2001 peaceful targeted residential picketing in the absence of a confrontation, and thus the right to engage in peaceful narrowly tailored and applicable time, place, or manner targeted residential picketing, free from such retaliation, was regulation prohibiting such picketing. The district court erred clearly established at the time of the confrontation. See in granting summary judgment to Byerley on the basis of its Thaddeus-X, 175 F.3d 378. Therefore, Dean has satisfied the determination that Byerley did not act under color of state law second hurdle necessary to survive summary judgment based during the March 27, 2001 confrontation. Additionally, we upon qualified immunity by showing that the constitutional conclude that Byerley is not entitled to summary judgment right was clearly established. Finally, through his complaint based either on the defense of absolute immunity or on the and Doolittle’s deposition, Dean has presented evidence that defense of qualified immunity. Consequently, we Byerley’s alleged conduct was objectively unreasonable in REVERSE the district court’s grant of summary judgment light of Dean’s clearly established First Amendment rights. and REMAND for further proceedings consistent with this Therefore, Dean has satisfied the third hurdle necessary to opinion. survive summary judgment based upon qualified immunity by pointing to evidence showing that what Byerley did was objectively unreasonable in light of clearly established constitutional rights. Byerley’s only arguments supporting his assertion that he is entitled to qualified immunity are that targeted residential picketing is not protected by the First Amendment, and that 14 his March 29, 2001 letter demonstrates that he only objected Additiona lly, we note that even if Byerle y were entitled to the defense of qua lified imm unity, the defense would only shield him from to Dean’s picketing on Byerley’s private property. As liability for Dean’s claim for damages, not from Dean’s claim for discussed in Part II. B. 1. above, Dean had a clearly equitab le relief, and thus would no t end the action. This court ha s held established right to engage in peaceful targeted residential that the defense of qualified immunity only bars claims for civil damages picketing in the absence of a narrowly tailored time, place, or against officers in their individ ual cap acities, no t claims for equitable manner restriction. Also, Byerley never disputes, nor could relief. Flagner v. Wilkinson, 241 F.3d 475 , 483 (6th C ir.), cert. denied, 534 U.S. 1071 (200 1); Littlejohn v. R ose, 768 F.2d 76 5, 772 (6th Cir. he dispute, that Dean had a clearly established right to picket 198 5), cert. denied, 475 U.S. 104 5 (1986 ). No. 02-1421 Dean v. Byerley 29 30 Dean v. Byerley No. 02-1421

______________ the defendant in this case, Thomas Byerley, sought to curb his efforts to engage in targeted residential picketing of Byerley’s DISSENT house over his Bar application. In order to explain my ______________ perspective on this case, the background to both points deserves some elaboration. SUTTON, Circuit Judge, dissenting. I see this case differently. In Frisby v. Schultz, 487 U.S. 474 (1988), the Dean is a graduate of the Thomas Cooley School of Law. Supreme Court rejected a First and Fourteenth Amendment In December 2000, he submitted his application for admission challenge to a city ordinance that imposed a “complete ban” to the State Bar of Michigan. As he was delivering the on “targeted residential picketing” because (among other application to the State Bar, he expressed concern to the reasons) it can “scarcely be doubted” that this medium of Executive Director of the Bar that his application was not communication is “offensive and disturbing,” because this entirely complete. As a 60-year-old law-school graduate, he type of picketing is directed at “captive audience[s]” who “are explained that he was unable to identify each of his places of presumptively unwilling to receive” the message, and because residence over the course of his life and that he was such picketing invariably “invade[s] residential privacy.” Id. concerned that the omissions might prejudice his efforts to at 487–88. Consistent with Frisby, the State of Michigan gain admission to the Bar. When questioned by a Magistrate makes it unlawful “to engage in picketing a private residence at the hearing on Byerley’s motion for summary judgment, by any means or methods whatever.” Mich. Comp. Laws Dean recounted what he had told the Executive Director in § 423.9f. On this record and under these circumstances, I fail the following words. to see how E. Stephen Dean can tenably claim that Thomas Byerley violated his constitutional rights, much less violated DEAN: I’m really concerned and what I’m concerned his clearly established constitutional rights, when Byerley about is not withholding anything, but, my gosh, I can’t objected to Dean’s targeted residential picketing of his home remember where I was 3 years ago and an apartment on the morning of March 27, 2001. Add to this the number or something like that, and that has me a little undisputed fact that Byerley wrote Dean a letter two days nervous. . . . The people at the bar handling this stuff are after the picketing (but before the filing of this lawsuit) under 30. Try explaining to somebody 25 years old . . . confirming he had “a right to exercise [his] First Amendment that you don’t remember where you lived. They think rights” in permissible ways, and it becomes difficult to you’re crazy. I said, but if it’s 40 or 41 years ago it can understand why Mr. Dean ought to be able to make a $2 be tough. He said, oh, don’t worry about that; I took the million federal case out of this incident. In my view, the bar when I was in my 50s . . . they’ll work with you. district court properly rejected Dean’s federal claims as a Well, that isn’t what I got from the bar. I got no phone matter of law, and accordingly I respectfully dissent. calls, you know, where were you and—I’d leave off a couple of months someplace. I’ve lived in several states. I. BACKGROUND And they keep—first, they would ignore it for a couple of weeks and then they would write back the same old, While a considerable number of ambiguities cloud this pro same old, as if I were refusing to cooperate with them. se lawsuit, two things are clear: E. Stephen Dean had an unsatisfying experience in submitting his application to THE COURT: So they were trying to get information to become a member of the Michigan Bar, and he believes that complete your application that they felt you ought to No. 02-1421 Dean v. Byerley 31 32 Dean v. Byerley No. 02-1421

provide and you were having difficulty remembering the Law Examiners, which makes the ultimate admission information that you needed to provide. decisions about each application. DEAN: They were refusing to accept my up- Dean arrived at the Byerley residence on the morning of front—before I handed in the application, the attachment March 27, 2001, and brought with him the two mercenary to it, that I’ve done my absolute best but it’s difficult to picketers he had employed in earlier demonstrations. No remember 38 or 40 or 25 years ago an exact address. sidewalk runs in front of Byerley’s home. Therefore, I’ve done my utmost here. according to Dean, he and his colleagues picketed on the public street in front of the Byerley home and solely on that *** part of the street in front of that home. According to Byerley, the protestors also demonstrated on his property. THE COURT: All right. And then this dialogue went on between you and the staff members at the bar and When Byerley left his home for work that morning, a eventually that led to your beginning this picketing? confrontation occurred. According to the allegations of the complaint, Byerley (1) threatened to have Dean arrested for DEAN: That’s correct. illegal picketing and (2) told Dean he would never practice law in the State of Michigan due to his illegal picketing. Summ. J. Hr’g Tr. at 38–39. After this confrontation and after Byerley had proceeded to work, Dean and the two other protesters left. Since then, At some point after these exchanges with employees of the Dean has not picketed Byerley’s home or the State Bar Michigan Bar, but before the State had acted on his Bar Building. application and before he took the Bar exam, Dean began picketing about his application and about the treatment he had Two days after this incident, on March 29, 2001, Byerley received from employees of the Michigan Bar. In his first sent a letter to Dean about his picketing. In full, the letter protest, in March 2001, Dean hired two individuals to assist reads as follows: him in picketing the Michigan State Bar Building about the treatment he had received in submitting his Bar application. As you know, you and two other individuals were He paid each picketer $10 an hour. outside of my private residence on Tuesday, March 27, 2001 carrying signs. Although you have a right to Dean eventually extended his picketing to the residence of exercise your First Amendment rights on public property, Thomas Byerley, the Regulation Counsel and Director of the you do not have that right on private property. Professional Standards Division for the Michigan Bar. On March 27 I verbally told you that you were on Among other things, the Professional Standards Division private property and that if you did not immediately oversees the Michigan Bar’s Character and Fitness leave I would call the police. This letter memorializes Department. Members of the Department investigate the that statement. You are put on formal notice that you are backgrounds of all State Bar applicants and assess whether never welcome on my private property and that if you they have the requisite character and fitness to practice law in trespass again I will ask that you be arrested. Michigan. They then submit their findings to the Board of No. 02-1421 Dean v. Byerley 33 34 Dean v. Byerley No. 02-1421

Similarly, you are notified that you are not to enter the the Magistrate’s view, Dean did not have a constitutional private property of any other State Bar of Michigan right to picket Byerley’s residence in light of the Supreme employee or officer. Court’s decision in Frisby v. Schultz, 487 U.S. 474 (1988), which upheld a content-neutral ordinance barring focused Def.’s Br. in Supp. of Mot. for Summ. J., Ex. E. residential picketing. Accordingly, the Magistrate recommended that the court dismiss Dean’s § 1983 claim and Rather than respond to this letter or seek to clarify his not retain supplemental jurisdiction over his state-law claims. authority to continue picketing, Dean filed this pro se complaint for $2 million against Byerley on April 4, 2001. The district court agreed with this recommended He brought the claim in the United States District Court for disposition of the case but for different reasons. It concluded the Western District of Michigan, contending that Byerley: that Dean’s § 1983 claim failed as a matter of law because (1) had violated his First (and Fourteenth) Amendment rights Byerley did not act under color of state law when he allegedly and 42 U.S.C. § 1983 by threatening to arrest Dean or threatened Dean that he would not become a member of the retaliate against him for his residential picketing; (2) had Michigan Bar if he continued picketing at his home. Among committed a state-law assault by driving his car at Dean; and other reasons for reaching this conclusion, the district court (3) had committed state-law libel by sending a letter to Dean noted that Byerley did not have actual authority to reject or claiming he had been trespassing. Dean sought $2 million in approve Dean’s Bar Application. The court also dismissed damages. Dean’s state-law claims for lack of supplemental jurisdiction. Dean responded with this appeal. In July 2001, during discovery in the case, Dean voluntarily withdrew his Michigan State Bar application. At a motions II. ANALYSIS hearing before a Magistrate on August 15, 2001, he said, “I withdrew [my Michigan State Bar application] because I To obtain relief under § 1983, Dean must demonstrate that thought it was best, and my letter of withdrawal to the bar (1) a person acting under color of state law (2) deprived him stated this—not verbatim, Judge—but that I felt it would be of a right protected by either the Constitution or laws of the best for me to get this lawsuit behind me before I went on United States. See Waters v. City of Morristown, 242 F.3d with my application to the bar and, therefore, I’m 353, 359 (6th Cir. 2001). In seeking $2 million in civil withdrawing it at this time.” Tr. of Aug. 15, 2001 Magistrate damages against Byerley in his individual capacity, Dean Mot. Hr’g at 9. At this hearing, in response to questions from faces one more hurdle. He must show that the constitutional the Magistrate, Dean clarified that he was not alleging that claim upon which he relies was “clearly established” at the Byerley actually did anything to prevent him from being time of the incident. Harlow v. Fitzgerald, 457 U.S. 800, 818 admitted to the Bar or that he would do that. Id. at 8. And he (1982). As this Court has put it: “[T]he question is whether confirmed that he had not withdrawn his application because any officer in the defendant’s position, measured objectively, of fears that Byerley would block the application. Id. at 9–10. would have clearly understood that he was under an (Dean apparently has since become a member of the Missouri affirmative duty to have refrained from such conduct.” Bar.) Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994). State officials thus are “entitled to qualified immunity [when] their In August 2001, Byerley filed a Motion for Summary decision was reasonable, even if mistaken.” Pray v. City of Judgment, which the Magistrate recommended granting. In No. 02-1421 Dean v. Byerley 35 36 Dean v. Byerley No. 02-1421

Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995) (quoting Castro decision voluntarily to abandon his Michigan Bar application v. United States, 34 F.3d 106, 112 (2d Cir. 1994)). (which eliminated anything to retaliate against), Dean cannot tenably claim that “a person of ordinary firmness” would have There are two ways to construe Dean’s objection to been dissuaded from engaging in legitimate speech by this Byerley’s conduct, and neither of them suffices to establish a incident. cognizable § 1983 claim in this instance. One possibility is that Dean believed Byerley sought to prevent him from A. Dean Did Not Have a Clearly-Established picketing on the morning of March 27th. But this theory Constitutional Right To Engage In Targeted cannot succeed in view of the “color of state law” Residential Picketing. requirement. As a staff member of the Michigan State Bar, Byerley clearly did not have, or appear to have, authority to At issue in Frisby was a residential picketing ordinance prevent Dean from picketing on his property or on the street enacted by the town of Brookfield, Wisconsin. The ordinance in front of his property. He is not a law enforcement officer; made it “unlawful for any person to engage in picketing Dean knew he was not a law enforcement officer; and Dean before or about the residence or dwelling of any individual” thus cannot say that Byerley was acting under color of state and was designed to “protec[t] and preserv[e] the home” by law in this respect during their confrontation on the morning ensuring “that members of the community enjoy in their of March 27th. homes . . . a feeling of well-being, tranquility, and privacy.” 487 U.S. at 477. The Town Board also believed that “the The second possibility, and the more probable one, is that practice of picketing before or about residences and dwellings Dean believed Byerley’s conduct amounted to a threat of causes emotional disturbance and distress to the occupants . . . retaliation if Dean continued to picket. That is to say, Dean [and] has as its object the harassing of such occupants.” Id. complains that Byerley threatened to undermine his efforts to become a member of the State Bar if Dean continued In reviewing the ordinance, the Court first determined that picketing at the Byerley home. A retaliation claim under it was “content neutral,” which is to say it banned all § 1983 consists of three elements: (1) the plaintiff engaged in residential picketing regardless of the subject matter of the constitutionally protected conduct (here, conduct protected by speech. Id. at 481–82. The Court then applied the familiar the First Amendment); (2) the defendant took “an adverse time-place-and-manner test applicable to content-neutral action” against the plaintiff that would deter “a person of regulations of speech in traditional public fora. Writing for ordinary firmness” from continuing to engage in the conduct; the Court, Justice O’Connor first reasoned that the ordinance and (3) the adverse action was in some way motivated by the left open “alternative channels of communication” as it plaintiff’s protected conduct. Thaddeus-X v. Blatter, 175 F.3d applied only to picketing directly in front of a single 378, 386, 394 (6th Cir. 1999) (en banc). residence. Id. at 483–84. She then explained that the ordinance served a “significant government interest” because Dean cannot satisfy the first or second prong of this test. “‘the State’s interest in protecting the well-being, tranquility, As Frisby v. Shultz, 487 U.S. 474 (1988) makes clear, his and privacy of the home is certainly of the highest order in a targeted residential picketing on the morning of March 27, free and civilized society.’” Id. at 484 (quoting Carey v. 2001 did not amount to constitutionally protected conduct. Brown, 447 U.S. 455, 471 (1980)). That was particularly true And in view of Byerley’s letter of March 29, 2001 (which in the context of a ban on targeted residential picketing, she removed any threat of retaliation) and in view of Dean’s added, given the importance of “protect[ing]” “unwilling No. 02-1421 Dean v. Byerley 37 38 Dean v. Byerley No. 02-1421

listener[s]” in their own homes. Id. at 484–85. Lastly, she does prohibit such picketing but did not offer any specific concluded that the ordinance was “narrowly tailored to authority to support this proposition. protect only unwilling recipients of the communications” because “the type of picketers banned by the Brookfield Further review confirms that a Michigan statute does ordinance generally do not seek to disseminate a message to prohibit private residential picketing. Under Mich. Comp. the general public, but to intrude upon the targeted resident, Laws § 423.9f, “[i]t shall be unlawful . . . to engage in and to do so in an especially offensive way.” Id. at 485–86. picketing a private residence by any means or methods The means-end fit between the objectives of the ordinance whatever: Provided, That picketing, to the extent that the and the methods of furthering them sufficed, the Court same is authorized under constitutional provisions, shall in no observed, since the “devastating effect of targeted picketing manner be prohibited.” Violations of the section are treated on the quiet enjoyment of the home is beyond doubt.” Id. at as a misdemeanor. Id. 486. See id. (“To those inside . . .[,] the home becomes something less than a home when and while the picketing . . . The majority concludes that this provision does not apply continue[s] . . . . [The] tensions and pressures may be here because it should be construed to apply only to picketing psychological, not physical, but they are not, for that reason, regarding labor-related matters. Maj. Op. at 9. I disagree less inimical to family privacy and truly domestic with that conclusion. Dean was picketing about a matter tranquility.”) (internal quotations omitted). related to labor and employment—namely, his effort to become a lawyer in the State of Michigan and his effort to be Fifteen years after Frisby, it is difficult to understand how available for employment in that profession. When Mr. Dean can claim that he had a constitutional right, let individuals attempt to become members of the legal alone a “clearly established” constitutional right, to engage in profession, as when they are regulated in the profession, they what he acknowledges was targeted residential picketing of are involved in a matter of labor—or at least employment. the Byerley home on the morning of March 27th. That That is particularly true here in view of Dean’s apparent claim conclusion seems not just improbable but impossible in the that employees of the Michigan Bar showed an age bias aftermath of Frisby, a decision that to my knowledge against him in discussing his application with them. uniformly has been followed by the lower courts in the last decade and a half. The provision, at any rate, plainly covers all forms of picketing, whether employment-related or not. While the Making the parallels between this case and Frisby more provision appears in a chapter of the Michigan Code labeled salient still is the existence of a Michigan statute that, like the “Labor Disputes and Employment Relations,” the statute by ordinance in Frisby, specifically bans residential picketing. its terms applies to all residential picketing: It refers to all As the majority points out, the parties’ briefs in the district “picketing” of any “private residence” and “by any means or court and in this Court seemed to assume that Michigan does methods whatever.” Id. A statute that comes with these not ban targeted residential picketing. Apparently, in the kinds of explicit directions leaves no room for State’s view of this dispute, the existence of Frisby as well as discretion—whether that discretion is invoked on the basis of the general prohibition against trespassing on private property the title of the law or its preamble. For neither the title of a sufficed to reject this constitutional claim. Appellee Br. at 20, statute nor the preamble of a bill has the capacity to impose 23–24. When this line of thinking was challenged at oral a limitation that the statute explicitly removes. See Pa. Dep’t argument, counsel for Byerley insisted that Michigan law of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“The title of a No. 02-1421 Dean v. Byerley 39 40 Dean v. Byerley No. 02-1421

statute . . . cannot limit the plain meaning of the text.”) 503 U.S. 249, 253–54 (1992) (“[A] court should always turn (quotation omitted); Price v. Forrest, 173 U.S. 410, 427 to one, cardinal canon before all others[,] . . . that a legislature (1899) (“Although a preamble has been said to be a key to says in a statute what it means and means in a statute what it open the understanding of a statute, we must not be says there. When the words of a statute are unambiguous, understood as adjudging that a statute, clear and unambiguous then, this first canon is also the last: judicial inquiry is in its enacting parts, may be so controlled by its preamble as complete.”) (internal quotations and citations omitted); to justify a construction plainly inconsistent with the words Browder v. Int’l Fidelity Ins. Co., 321 N.W.2d 668, 673 used in the body of the statute.”); Browder v. Int’l Fidelity (Mich. 1982) (“A basic rule of statutory construction is that Ins. Co., 321 N.W.2d 668, 673 (Mich. 1982) (“A basic rule of where the Legislature uses certain and unambiguous statutory construction is that where the Legislature uses language, the plain meaning of the statute must be certain and unambiguous language, the plain meaning of the followed.”). statute must be followed.”); King v. Ford Motor Credit Co., 668 N.W.2d 357, 363 (Mich. Ct. App. 2003) (“The preamble This context-based argument also raises more interpretive can neither limit nor extend the meaning of a statute which is questions than it answers. While two of the four prohibited clear. Similarly, it cannot be used to create doubt or activities covered by § 423.9f specifically relate to labor-and- uncertainty.”) (quoting 2A Norman J. Singer, Sutherland employment picketing, two of them do not—thus removing Statutory Construction § 47:04, at 224 (6th ed. 2000)). the very inference the majority invokes. In full, the text reads: Nor does the preamble or title of this law—even if one of them could alter the plain meaning of the statute—lead to a It shall be unlawful (1) for any person or persons to different conclusion. The preamble (as amended in 1947 hinder or prevent by mass picketing, unlawful threats or when the residential picketing ban was added) says only that force the pursuit of any lawful work or employment, the bill is designed generally to “limit the right to strike and (2) to obstruct or interfere with entrance to or egress from picket.” Mich. Comp. Laws § 423 pmbl. It does not restrict any place of employment, (3) to obstruct or interfere with the provision to picketing on labor or employment matters, free and uninterrupted use of public roads, streets, even though other portions of the preamble discuss subjects highways, railways, airports, or other ways of travel or of the law in the limited context of labor and employment. Id. conveyance, or (4) to engage in picketing a private Likewise, while this anti-picketing legislation was enacted in residence by any means or methods whatever: Provided, an amendment to a piece of legislation with a labor and That picketing, to the extent that the same is authorized employment title, that fact tells us nothing about whether the under constitutional provisions, shall in no manner be legislature chose—as its words clearly indicate—to extend the prohibited. Violation of this section shall be a ban to all forms of picketing rather than just some. misdemeanor and punishable as such.

The surrounding legislative text of the provision also fails (Emphasis added.) In view of the legislature’s decision to to change matters. Once again, it seems doubtful that specify a labor-and-employment orientation as to some surrounding text by itself ever could alter language as plain as prohibitions, but not as to others, the customary rule of this. See Field v. Mans, 516 U.S. 59, 67 (1995) (cautioning interpretation is to assume that the legislature meant to give that a contextual inference “should not be elevated to the level force to the differential language. See Russello v. United of interpretive trump card”); Conn. Nat’l Bank v. Germain, States, 464 U.S. 16, 23 (1983); Cherry Growers, Inc. v. No. 02-1421 Dean v. Byerley 41 42 Dean v. Byerley No. 02-1421

Agric. Mktg. & Bargaining Bd., 610 N.W.2d 613, 622 (Mich. the law should be construed to contain an exception for labor Ct. App. 2000). picketing—the mirror image of the problem we have here. Id. at 481–82. Thus, in Frisby, the Court accepted one narrowing Nor does adherence to the plain terms of this statute lead to interpretation of the law (making it applicable only to targeted an “absurd result,” which is the only other possible residential picketing) and rejected one narrowing explanation for disregarding words as clear as these. See, interpretation of the law (making it applicable to residential e.g., United States v. Rodgers, 466 U.S. 475, 484 (1984) picketing on all topics, whether labor-related or not). In the (plain language controls unless it leads to “absurd” results); same year the Court decided Frisby, it hewed to this path in Brandon Charter Township v. Tippett, 616 N.W.2d 243, 246 Boos v. Barry, 485 U.S. 312 (1988). There, too, the Court (Mich. Ct. App. 2000) (same). After all, the Michigan accepted a narrowing interpretation of a District of Columbia Legislature surely could have taken the view that a statute that criminal law prohibiting persons from congregating near proscribes all residential picketing on all topics of speech was embassies (making the law applicable only to violent not only fair—because it would avoid favoring one subject of protests), id. at 331, and rejected a narrowing interpretation of speech over another—but it was the only choice available. A the law (making the law applicable to all protests, whether law that banned residential picketing when, and only when, labor-related or not), id. at 333. Cf. United States v. Seeger, the message of the demonstrator concerns labor would be 380 U.S. 163, 176 (1965) (broadening the interpretation of patently unconstitutional. See Carey v. Brown, 447 U.S. 455 “Supreme Being”—an awesome task to be sure—to “avoid[] (1980) (invalidating a restriction on picketing that applied to imputing to Congress an intent to classify different religious all subjects, except labor, as impermissibly content based); beliefs, exempting some and excluding others”). Frisby, supra (upholding ban on targeted residential picketing because, among other reasons, the ban was content neutral). Informed by Frisby’s (and Boos’s) example of minimizing Far from being unusual to include a complete ban on targeted rather than accentuating the potential infirmities of a law, I residential picketing in a bill about labor and employment would follow a similar course here. The statute at issue issues, then, it was the only choice the Michigan Legislature makes it unlawful “to engage in picketing a private residence had. by any means or methods whatever.” In the confines of this straightforward language, the statute cannot be narrowed to In the face of Brown and Frisby and in the face of the ban “picketing a private residence on matters of labor and general prohibition against content-based regulations of employment by any means or methods whatever”—which is speech, the doctrine of constitutional avoidance resolves any not what the statute says (or even suggests) and which no rule remaining doubts about the meaning of this law. Indeed, in of construction with which I am familiar permits. An Frisby itself, which also involved a criminal law, 487 U.S. at alternative approach would not only create a potential 477, the Court applied the same doctrine in construing the law constitutional claim in this case against Mr. Byerley but at issue to apply just to targeted residential picketing. Id. at would also invalidate the Michigan residential picketing 482 (“The precise scope of the ban is not further described statute—a two-for-the-price-of-one constitutional ruling that within the text of the ordinance, but in our view the ordinance cannot coexist with the salutary premises of the constitutional is readily subject to a narrowing construction that avoids avoidance doctrine. constitutional difficulties.”). And in Frisby, the Court also accepted “the lower courts’ conclusion that the Brookfield This is all the more true in a qualified immunity setting ordinance is content neutral” and rejected an argument that where the question is not just whether Dean had a right to No. 02-1421 Dean v. Byerley 43 44 Dean v. Byerley No. 02-1421

picket Byerley’s home, but also whether that right was clearly B. Dean Did Not Suffer An Adverse Action established in March 2001. See Sanatana v. Calderon, 342 That Would Deter A Person Of Ordinary F.3d 18, 30 (1st Cir. 2003) (Because “any ruling by us on the Firmness. constitutional right question would be premised on our best judgment about the application [of a state law,] . . . . the best In addition to failing to show that he was engaged in way for us to reconcile our competing obligations of faithful constitutionally protected conduct, Dean also has failed to application of the federal law of qualified immunity and show that Byerley took an “adverse action” against him that respect for the primacy of [state law] is to focus on the second would deter “a person of ordinary firmness” from continuing step of the qualified immunity analysis—the clearly to engage in the challenged conduct. Recall that just two days established question.”). When the United States Supreme after this confrontation and before this lawsuit was filed, Court has upheld a “complete ban” on targeted residential Byerley sent Dean a letter indicating that he was free “to picketing, when the State of Michigan has made it “unlawful exercise [his] First Amendment rights” so long as he did so . . . to engage in picketing a private residence by any means on public, not private, property. In the aftermath of this letter, or methods whatever,” and when no court has previously which Dean does not deny receiving and to which Dean never interpreted the scope of this seemingly straightforward text, responded, the fact dispute of whether Dean picketed on it seems plain that Dean did not have a clearly-established private or public property becomes irrelevant. The letter right to picket Byerley’s residence. See Saucier v. Katz, 533 makes clear that the picketing could continue, just not on U.S. 194, 206 (2001) (“Qualified immunity operates . . . to Byerley’s property. No rational juror could read this letter to ensure that before they are subjected to suit, officers are on say that Dean would still be at risk (from Byerley at least) by notice that their conduct is unlawful.”); Anderson v. continuing to picket on public property. Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be sufficiently clear that a reasonable official Had Byerley followed through on his alleged threats, to be would understand that what he is doing violates that right.”); sure, his acts would have constituted “adverse action” of a Santana, 342 F.3d at 30–31 (holding that a state employee’s constitutional magnitude. See, e.g., Hoover v. Radabaugh, Fourteenth Amendment due process right to retain her job 307 F.3d 460 (6th Cir. 2002) (terminating a public employee was not clearly established because a property right was not is an adverse action); Farmer v. Cleveland Public Power, 295 clearly established under Puerto Rico law); Young v. F.3d 593, 602 (reducing a public employee’s job Harrison, 284 F.3d 863, 868–69 (8th Cir. 2002) (holding that responsibilities is an adverse action). But Byerley did not an evicted hotel guest’s Fourth Amendment right to be free deny or obstruct Dean’s Bar application or have Dean from a warrantless search of his hotel room was not clearly arrested. He allegedly just threatened to do so, then retracted established because his continuing interest in the hotel room the threat two days later. was not clearly established under South Dakota law). Cf. Spruytte v. Walters, 753 F.2d 498, 510–11 (6th Cir. 1985) Marginalizing his claim still further (and mooting his claim (denying prison officials qualified immunity for due process for injunctive relief), Dean concedes that he withdrew his Bar violations where the meaning of a state regulation creating the application voluntarily, not because of fears that Byerley property right was clearly established). would block it. Never to my knowledge has this Court found “adverse action” with respect to events as inconsequential as these. And, indeed, the extension of § 1983 to this setting serves to “trivialize the First Amendment” rather than to No. 02-1421 Dean v. Byerley 45

reinforce it. See Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir. 1999) (“[A]llowing constitutional redress for every minor harassment may serve to trivialize the First Amendment.”); id. at 522 (“A deliberate attempt to discredit [a public official], especially if initiated in retaliation for her actions in investigating the fire department, is perhaps an inappropriate and unfortunate occurrence, but on the facts of this case, it is not the type of ‘adverse action’ against which the First Amendment protects. It is not the equivalent of being fired by a government employer for expressing protected views.”); Thaddeus-X, 175 F.3d at 398 (recognizing that “certain threats or deprivations are so de minimis that they do not rise to the level of being constitutional violations” and that the courts may “weed out” such “inconsequential actions”); Davidian v. O’Mara, No. 99-5423, 2000 WL 377342, at *4 (6th Cir. Apr. 7, 2000) (being temporarily denied access to public information was not an adverse action); Neier v. City of Pemberville, No. 99-3104, 2000 WL 32008, at *4 (6th Cir. Jan. 4, 2000) (a threat made by defendant “that plaintiff would lose his job unless he dropped his [] claim” was not an adverse action where “[p]laintiff realized that [defendant] was without authority to carry out such a threat and plaintiff does not allege that [defendant] made an effort to have him terminated”). Like the district court before us (and the Magistrate as well), I believe that Dean’s First Amendment claim fails as a matter of law. As these views have garnered a majority of one, I respectfully dissent.