NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0093n.06
Case No. 18-1116
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PAUL JOSEPH HARCZ, JR., ELEANOR ) FILED CANTER, BRIAN DIAN, MARK EAGLE, ) Feb 26, 2019 TERRY EAGLE, DAVID ROBINSON, and ) DEBORAH S. HUNT, Clerk JOSEPH SONTAG, ) ) Plaintiffs-Appellants, ) ) v. ) ) ON APPEAL FROM THE UNITED BRODY BOUCHER, JASON WILLIAMS, ) STATES DISTRICT COURT FOR JEFF HELD, EDWIN HENRIQUEZ, BRIAN ) THE WESTERN DISTRICT OF GEORGE, RYAN DAVIS, STEPHEN ) MICHIGAN THOMAS, KEVIN COOK, VINCENT ) MUNOZ, DAN BROCKLEHURST, all ) defendants sued in their personal capacities, ) MICHIGAN ASSOCIATION OF CENTERS ) FOR INDEPENDENT LIVING, ) HANDICAPPER ADVOCACY ALLIANCE, ) INC., ) ) Defendants-Appellees. )
BEFORE: SILER, COOK, and BUSH, Circuit Judges.
COOK, Circuit Judge. The state police prevented Paul Joseph Harcz and a group of
disability-rights advocates from entering an event celebrating the passage of the Americans with
Disabilities Act (“ADA”) on the Michigan State Capitol grounds, first stopping them at a
checkpoint and eventually arresting Harcz for attempting to force his way into the event. The Case No. 18-1116, Harcz, et al. v. Boucher, et al.
group sued several state officers and the private event planners, alleging First and Fourteenth
Amendment violations under 42 U.S.C. § 1983. Harcz also alleged claims of false arrest, false
imprisonment, and malicious prosecution under the Fourth Amendment and state law. The district
court dismissed all claims on the pleadings. We AFFIRM dismissal of the claims against the
private defendants and the Fourteenth Amendment claim against all defendants. But because the
appellants plausibly allege First Amendment violations against the state defendants and the case
requires further factual development to resolve qualified immunity, we REVERSE dismissal of
the First Amendment claim and Harcz’s individual claims.
I.
In 2014, private parties began planning an event to commemorate the twenty-fifth
anniversary of the ADA. They secured a permit to hold the celebration on the east side of the
Michigan State Capitol on September 17, 2015, and advertised the event as “free and open to the
public.” The plaintiffs-appellants in this case, most physically disabled, knew about the event;
Harcz, in fact, directly participated in its planning, serving on the accommodations committee.
Though eager to celebrate the ADA anniversary, the plaintiffs also harbored misgivings
about certain aspects of the celebration. In particular, they questioned the propriety of the
sponsorship by an employer said to pay disabled employees sub-minimum wages and choosing as
the venue the State Capitol building that—in their opinion—violated the ADA. They relayed these
concerns to Sara Grivetti, the event’s chief organizer and CEO of the Michigan Association of
Centers for Independent Living (“MACIL”), who then speculated with fellow event planners that
the plaintiffs might protest and disrupt the event.
In the days leading up to the celebration, the organizers notified the Michigan State Police
that protestors might disrupt the event. Grivetti spoke with an officer about the plaintiffs’ objection
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to one of the event’s sponsors and expressed concern about disruption. She also communicated
with the facilities director for the Capitol about potential protests. Ellen Weaver, another event
planner and representative for the Handicapper Advocacy Alliance, Inc. (“HAAI”), similarly
contacted the police and expressed concern about disruption from protestors. The plaintiffs allege
that on the morning of the event, Grivetti and Weaver met with the police and again communicated
their desire to prevent disruption. They allege that the police “agreed” with Grivetti and Weaver
that officers would exclude suspected protestors from the event and prevent them from passing
beyond the Austin Blair statue on the Capitol grounds.
On the day of the event, the plaintiffs assembled on a street corner adjacent to the Capitol
carrying handmade signs, a banner, and leaflets for distribution. An officer approached and told
them they could not pass the statue. The plaintiffs insisted that they did not want to cause a
disturbance and merely sought to “peacefully . . . share their views on issues important to them.”
When the group of about fifteen to twenty attempted to enter the event, the police blocked their
path. Later, the officers erected metal barricades across the sidewalk leading up to the event,
approximately 130 feet from the stage, preventing the plaintiffs from entering.
Harcz, legally blind and using a walking stick, eventually attempted to circumvent the
barricades. Following a scuffle, the police arrested Harcz and held him in the Capitol for the
duration of the ADA celebration. In state court, a judge found probable cause that Harcz obstructed
the officers, but the prosecutor dropped Harcz’s felonious assault charge before trial.
The plaintiffs filed this action in district court against individual police officers, the Capitol
facilities director, MACIL, and HAAI, alleging First and Fourteenth Amendment violations under
42 U.S.C. § 1983. Harcz also alleged claims of false arrest, false imprisonment, and malicious
prosecution against several officers under the Fourth Amendment and state law. The various
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defendants moved to dismiss and for summary judgment, and the district court dismissed all claims
under Federal Rule of Civil Procedure 12(b)(6).
The district court addressed the plaintiffs’ claims in three parts. It first found that the
plaintiffs could not sustain a § 1983 claim against the private defendants, MACIL and HAAI,
because they failed to allege facts showing a civil conspiracy with the police. Second, it held that
qualified immunity protected the state defendants because “sufficient daylight” existed between
the circumstances of the ADA event and those in similar cases on which the defendants might have
relied. Finally, it dismissed Harcz’s individual claims, independently finding that his actions
provided adequate grounds for probable cause supporting arrest. The plaintiffs appealed.
II.
We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6). Bridge
v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 358 (6th Cir. 2012). To survive a motion to dismiss, a
plaintiff must “allege[] facts that ‘state a claim to relief that is plausible on its face’ and that, if
accepted as true, are sufficient to ‘raise a right to relief above the speculative level.’” Handy-Clay
v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We must read the complaint
“in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
A. Conspiracy Between the Private and State Defendants
The district court dismissed the appellants’ claims against the private defendants, MACIL
and HAAI, because it found that the appellants failed to allege sufficient facts to establish a
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conspiracy between the private and state defendants. On de novo review, we agree that the
complaint fails to allege facts supporting the reasonable inference, absent speculation, that the
private defendants conspired with the police to violate the appellants’ rights.
A § 1983 claim must satisfy two requirements, plausibly stating: “1) the deprivation of a
right secured by the Constitution or laws of the United States and 2) [that] the deprivation was
caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir.
2003) (quoting Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995)). The appellants here
contend that the private defendants fall under a state-action exception whereby “[i]f a private party
has conspired with state officials to violate constitutional rights, then that party qualifies as a state
actor and may be held liable pursuant to § 1983.” Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th
Cir. 2000) (emphasis added).
Two or more individuals conspire when they agree to injure another by unlawful action.
Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985). To prevail on a civil conspiracy claim, a
plaintiff must show “[1] that there was a single plan, [2] that the alleged coconspirator shared in
the general conspiratorial objective, and [3] that an overt act was committed in furtherance of the
conspiracy that caused injury to the complainant.” Id. at 944. “[P]leading requirements governing
civil conspiracies are relatively strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008).
The complaint alleges that Grivetti and Weaver independently contacted the police to
express concern about disruption in the days leading up to the event, that Grivetti and Weaver then
met with Sgt. Jeff Held of the state police on the morning of the event, and that Sgt. Held “agreed
with [Grivetti and Weaver] that [he] would cause the [police] to exclude anyone that they believed
were protestors from the ADA event.” R. 1, PageID 9–11. In dismissing the appellants’ claims
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against MACIL and HAAI, the district court reasoned that the allegations in the complaint failed
to make out an agreement with a shared objective. We agree.
The appellants have not pleaded facts sufficient to nudge their conspiracy theory beyond
the speculative. True, the complaint alleges more than the conclusory allegations we routinely
deem deficient. See, e.g., Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 563–64 (6th Cir.
2011) (“The only paragraph in which [the plaintiff] discusses conspiracy is vague and consists
primarily of legal conclusions . . . .”); Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir.
2009) (plaintiff’s conspiracy claims each “offer[ed] nothing more than one conclusory
allegation”). But the allegations still fail to support the inference that the private and state
defendants engaged in a single plan of action. See Hooks, 771 F.2d at 944. Though the appellants
use the word “agreed” in their complaint, the substantive allegations describe Grivetti and Weaver
merely relaying their concerns about disruption to the police. See Twombly, 550 U.S. at 555
(stating that the complaint must contain “more than labels and conclusions”). Indeed, the
complaint itself supports the inference that the state defendants formed their plan to handle
protestors independently, alleging that the police developed an “operational plan” and made the
decision to deploy officers on their own, before meeting with Grivetti and Weaver on the day of
the event. R. 1, PageID 10. The police officers’ decision to inform Grivetti and Weaver about
their plan—without soliciting any input whatsoever—does not rise to the level of conspiracy.
Furthermore, the district court rightly noted that imposing liability on the private
defendants here might deter private citizens from reaching out to the police with concerns. Even
reading the complaint in the light most favorable to the appellants, Grivetti and Weaver did little
more than contact the police and then check in with them before the start of the event. We cannot
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impose liability here without sending a clear message to think twice before notifying the police
about a concern.
We affirm the dismissal of the § 1983 claims against MACIL and HAAI.
B. Qualified Immunity on the Alleged First Amendment Violation
The district court held that qualified immunity protected the state defendants against the
appellants’ claims because the available precedent failed to clearly establish the unlawfulness of
their actions at the ADA event. We disagree in part. Because the appellants plausibly allege a
First Amendment violation and the case requires further factual development to evaluate whether
the state defendants acted reasonably and competently under the circumstances, we reverse
dismissal of the First Amendment claim.
Although we endeavor to resolve qualified immunity “at the earliest possible stage,”
Hunter v. Bryant, 502 U.S. 224, 227 (1991), “it is generally inappropriate for a district court to
grant a 12(b)(6) motion to dismiss on the basis of qualified immunity,” Wesley v. Campbell, 779
F.3d 421, 433 (6th Cir. 2015) (collecting cases). Moreover, we have decided cases considering
analogous First Amendment issues well after the pleading stage. See, e.g., Saieg v. City of
Dearborn, 641 F.3d 727, 730 (6th Cir. 2011) (reversing grant of summary judgment to city because
its restriction on distributing material at a public festival violated pastor’s free speech rights);
Parks v. City of Columbus, 395 F.3d 643, 645–47 (6th Cir. 2005) (reversing denial of
demonstrator’s preliminary injunction after bench trial because the city violated his speech rights
by excluding him from a public festival); see also Startzell v. City of Philadelphia, 533 F.3d 183,
205 (3d Cir. 2008) (affirming grant of summary judgment to city because it enforced a valid speech
restriction against protestors at a public festival). This case presents no reason to depart from that
consistent practice. At this stage, the appellants plausibly allege a First Amendment violation
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because they claim that the state defendants prevented them from accessing a traditional public
forum to exercise their speech rights before they posed any concrete threat of disruption.
Qualified immunity shields the discretionary actions of government officials so long “as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
qualified immunity inquiry proceeds in two familiar steps, the first asking whether the plaintiff
alleged facts in the complaint that make out a constitutional violation and the second asking
whether existing precedent “clearly established” the right at the time of the alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). To violate a clearly established right, courts “do
not require a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Constitutional violation. When read in the light most favorable to the appellants, the
complaint plausibly alleges that the state defendants, without a compelling justification, violated
their First Amendment rights by blocking access to the event. “The First Amendment offers
sweeping protection that allows all manner of speech to enter the marketplace of ideas.” Bible
Believers v. Wayne Cty., 805 F.3d 228, 243 (6th Cir. 2015) (en banc). Three considerations
underlie any determination of whether a defendant violates a plaintiff’s First Amendment rights:
(1) “whether the plaintiff’s conduct is protected speech”; (2) “the nature of the forum”; and
(3) “whether the justifications for exclusion from the relevant forum satisfy the requisite standard.”
Saieg, 641 F.3d at 734–35 (citations omitted). Here, the parties agree that the appellants engaged
in protected speech and that the Michigan State Capitol grounds constitute a public forum. We
focus, then, on the defendants’ justification for the restriction. In a traditional public forum, the
government may impose reasonable time, place, and manner restrictions on speech “as long as the
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restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest,
and leave open ample alternative channels of communication.’” United States v. Grace, 461 U.S.
171, 177 (1983) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983)).
The state defendants argue that stopping the appellants at the Austin Blair statue constituted
a reasonable time, place, and manner restriction serving the acceptable purposes of “crowd control
and public safety” and preventing a “heckler’s veto.” See Hill v. Colorado, 530 U.S. 703, 719–20
(2000); Parks v. Finan, 385 F.3d 694, 698–706 (6th Cir. 2004). But, at the pleading stage, the
complaint defeats these asserted interests, averring that the small group of protestors sought to
“peacefully . . . share their views” and “did not intend to make a disturbance.” R. 1, PageID 11–
13. And the defendants here “must do more . . . than ‘assert[] interests [that] are important in the
abstract.’” See Saieg, 641 F.3d at 736–37 (quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S.
622, 664 (1994)) (rejecting asserted government crowd control and safety interests when
government restricted only some of the numerous activities implicating those interests). Accepting
the complaint’s allegations as true—as we must—the appellants posed no threat of disruption
before the police excluded them from the event. Thus, when the police imposed the restriction,
the asserted interests of crowd control, safety, and preventing a heckler’s veto “[were] merely
‘conjectural,’ as opposed to ‘real.’” Id.
The state defendants argue that video evidence submitted in support of their motion to
dismiss supplies proof of disruptive conduct by the appellants justifying the restriction. 1 But the
videos show only the appellants’ conduct well after the police denied them access to the event.
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They therefore fail to support the conclusion that the appellants caused or intended to cause a
disturbance before the police excluded them.
Absent a significant government interest, the state defendants could not be said to be
enforcing a reasonable time, place, and manner restriction when they denied the appellants access
to a traditional public forum.2 See Grace, 461 U.S. at 177; Saieg, 641 F.3d at 740 (“The
requirements for a time, place, and manner restriction are conjunctive.”). Thus, the complaint
sufficiently alleges a First Amendment violation.
Clearly established right. Accepting the allegations in the complaint, precedent clearly
established that the state defendants violated the appellants’ First Amendment rights. Over ten
years before the events in this case, Parks established that “one’s constitutionally protected rights”
do not “disappear because a private party is hosting an event that remain[s] free and open to the
public.” 395 F.3d at 652; see also Teesdale v. City of Chicago, 690 F.3d 829, 834 n.1 (7th Cir.
2012) (citing Parks); Gathright v. City of Portland, 439 F.3d 573, 578–79 (9th Cir. 2006) (same).
As a result, cases stretching back decades requiring that a significant government interest support
a valid time, place, and manner restriction controlled here. See Perry Educ. Ass’n., 460 U.S. at 45
(collecting cases). In addition, previous decisions of this court and the Supreme Court clarify that
the government must demonstrate the reality of an asserted interest when justifying speech
restrictions and that mere conjecture will not suffice. See Turner, 512 U.S. at 664; Saieg, 641 F.3d
at 736–37; Bays v. City of Fairborn, 668 F.3d 814, 823–24 (6th Cir. 2012).
2 Although the absence of a significant government interest alone defeats the validity of the state defendants’ purported time, place, and manner restriction at this stage, Saieg, 641 F.3d at 740, we note that the questions of content neutrality, narrow tailoring, and ample alternative channels of communication remain open. - 10 - Case No. 18-1116, Harcz, et al. v. Boucher, et al.
Moreover, Startzell v. Philadelphia, an analogous case that the district court discussed at
length, provided a blueprint for proper police action under the circumstances. See 533 F.3d at
198–99. There, the officers allowed protestors to enter a permitted event held in a public forum
and imposed a constitutionally-permissible restriction only after “protestors move[d] from
distributing literature and wearing signs to disruption of the permitted activities.” Id. at 199.
Accepting the appellants’ allegations as true, these cases placed the state defendants’ constitutional
violation beyond debate. See al-Kidd, 563 U.S. at 741. We therefore reverse dismissal of the
appellants’ First Amendment claim.
C. The Alleged Fourteenth Amendment Violation
Because the appellants abandon their Fourteenth Amendment claim on appeal by making
no standalone equal protection argument, we affirm dismissal of that claim. See Boyd v. Ford
Motor Co., 948 F.2d 283, 284 (6th Cir. 1991).
D. Harcz’s Individual Claims
Finally, the district court dismissed Harcz’s individual state and federal claims of false
arrest, false imprisonment, and malicious prosecution, finding that his actions provided adequate
grounds to establish probable cause supporting arrest. Viewing the complaint and available
materials in the light most favorable to Harcz, we disagree and reverse.
The officers renew their argument, rejected by the district court, that the state court’s
probable cause finding collaterally estops Harcz from contesting probable cause in this § 1983
action. See Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987) (“[W]here the state affords
an opportunity for an accused to contest probable cause at a preliminary hearing and the accused
does so, a finding of probable cause by the examining magistrate or state judge should foreclose
relitigation of that finding in a subsequent § 1983 action.”), overruled on other grounds by Frantz
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v. Vill. of Bradford, 245 F.3d 869, 874 (6th Cir. 2001). But as the district court correctly observed,
a prior probable cause finding does not prevent a plaintiff from relitigating probable cause where
the plaintiff claims that the witness who testified at the state proceeding misstated or knowingly
misrepresented the facts used to establish probable cause. Darrah v. City of Oak Park, 255 F.3d
301, 311 (6th Cir. 2001). Here, Harcz has done just that, alleging that “Sgt. Edwin Henriquez
. . . provided false and misleading testimony at the probable-cause hearing.” R. 1, PageID 23.
A plaintiff can bring malicious prosecution claims against police officers if the plaintiff
alleges, as Harcz does, that a misleading police report influenced the state court’s determination
of probable cause for arrest and prosecution. See Darrah, 255 F.3d at 312; Fox v. DeSoto, 489 F.3d
227, 237 (6th Cir. 2007); R. 1, PageID 23. Like all of Harcz’s individual claims, a malicious
prosecution claim requires the absence of probable cause, Fox, 489 F.3d at 237, and a probable
cause determination depends on whether, at the moment of arrest, “the facts and circumstances
within [the officers’] knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the petitioner had committed or was
committing an offense,” Beck v. Ohio, 379 U.S. 89, 91 (1964). If the court independently finds
that probable cause supported prosecution, the plaintiff cannot make out a malicious prosecution
claim regardless of any alleged false statements made by an officer. Darrah, 255 F.3d at 312.
Whether probable cause exists presents a jury question “unless there is only one reasonable
determination possible.” See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir.
2005) (quoting Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000)).
The district court reviewed video evidence submitted in support of the defendants’ motion
to dismiss and found that Harcz’s actions supplied ample grounds to establish probable cause in
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support of arrest, thus defeating each of his claims.3 Harcz argues to the contrary—that his
blindness explains his physical behavior at the ADA event and that he did not threaten violence or
pose a risk of harm. He alleges that while feeling around the barricade with his cane, the police
“grabbed [him] by one arm and pulled [him] across.” R. 1, PageID 15. Viewed in the light most
favorable to Harcz, the videos fail to conclusively rebut that explanation. The district court
acknowledged as much when it stated: “[w]hether [Harcz] was aggressively pushing against the
police officers, or the officers initiated the physical contact by aggressively pulling him through
and handcuffing him, is not readily apparent in the videos.” R. 47, PageID 630. Nor do the videos
clearly show Harcz battering officers with his cane. With more than one reasonable determination
possible, the probable cause finding should not occur at the pleading stage. See Radvansky,
395 F.3d at 302. We reverse dismissal of Harcz’s individual state and federal claims.
Moreover, in light of our First Amendment holding, Michigan law entitled Harcz to resist
his alleged unlawful arrest. People v. Moreno, 814 N.W.2d 624, 628 (Mich. 2012) (“[T]he right
to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our
state’s common law.”). Assuming the truth of the appellants’ allegations—that the police
restricted their access before they posed a concrete threat of disruption and that Harcz did not batter
the officers—Moreno protects Harcz’s refusal to obey police orders.
Because the district court resolved Harcz’s individual claims with an independent probable
cause finding, it failed to reach the officers’ governmental immunity defense to the state-law
3 The appellants do not dispute the district court’s reliance on the video evidence. Moreover, at the motion to dismiss stage we may review “items appearing in . . . exhibits attached to [a] defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The videos meet these criteria. - 13 - Case No. 18-1116, Harcz, et al. v. Boucher, et al.
claims and qualified immunity arguments regarding the Fourth Amendment claims. We remand
to the district court to make determinations on those issues in the first instance.
III.
In sum, we AFFIRM dismissal of the claims against the private defendants, AFFIRM
dismissal of the Fourteenth Amendment claim, and REVERSE dismissal of the First Amendment
claim and Harcz’s individual claims.
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