Robert Kennedy v. City of Cincinnati ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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ROBERT KENNEDY,
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Plaintiff-Appellee,
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No. 09-3089
v.
,
>
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Defendants, -
CITY OF CINCINNATI, et al.,
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JEFFREY ZUCKER, Police Officer; DAVID -
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Defendants-Appellants. -
HUDEPOHL,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 07-00512—Timothy S. Black, Magistrate Judge.
Argued: December 3, 2009
Decided and Filed: February 16, 2010
*
Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.
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COUNSEL
ARGUED: Peter J. Stackpole, CITY OF CINCINNATI, OFFICE OF CITY
SOLICITOR, Cincinnati, Ohio, for Appellants. Steven F. Stuhlbarg, LAW OFFICE,
Cincinnati, Ohio, for Appellee. ON BRIEF: Peter J. Stackpole, CITY OF
CINCINNATI, OFFICE OF CITY SOLICITOR, Cincinnati, Ohio, for Appellants.
Steven F. Stuhlbarg, LAW OFFICE, Cincinnati, Ohio, for Appellee.
*
The Honorable James G. Carr, Chief United States District Judge for the Northern District of
Ohio, sitting by designation.
1
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 2
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OPINION
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GRIFFIN, Circuit Judge. Defendants Jeffrey Zucker and David Hudepohl appeal
the denial of their motion for summary judgment based on the defense of qualified
immunity from plaintiff Robert Kennedy’s procedural due process claims brought under
42 U.S.C. § 1983. For the reasons that follow, we reverse in part and affirm in part. In
doing so, we hold that Kennedy did not have a protectable property interest in his $10
City pool token, but possessed a clearly established constitutionally-protected liberty
interest not to be banned from all City recreational property without procedural due
process.
I.
The City of Cincinnati, through the Cincinnati Recreation Commission (“CRC”),
operates swimming pools and recreation facilities. “Recreation programs and facilities
are open to all citizens regardless of race, gender, color, religion, nationality, sexual
orientation or disability.” (alteration in emphasis.) The City offers access to its
swimming pools by issuing pool tokens, which cost $10. Pool tokens, however, are not
issued automatically. The City retains “discretion to refuse to issue a token depending
on circumstances[,]” and must refuse to issue a pool token for the following seven
reasons:
[1.] The City may not issue a token to a person suspected of having
an infectious or communicable disease.
[2.] The City may not issue a token to a person with head lice or
ringworm.
[3.] The City may not issue a token to a person with an obvious
infectious wound.
[4.] The City may not issue a token to a sex offender.
[5.] The City may not issue a token to a known violent or dangerous
person.
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 3
[6.] The City may not issue a token to persons known to have violated
pool rules in the past.
[7.] The City may not issue a token to a person who is obviously high
or intoxicated.
When a pool token is issued, the new member completes and signs a membership
card, which states:
I agree to follow the rules and policies and procedures of the Cincinnati
Recreation Commission. I understand that my membership may be
revoked without a refund if I do not follow the rules.
“[M]embership card[s] [are] kept at the pool where the new member purchased the
token” and “contain[] the identifying number of the token that was purchased.” The
tokens are not transferable and may not be used by more than one person.
The CRC’s rules, policies, and procedures in effect during the relevant time
period are contained in the CRC Aquatic Division Program Brochure 2007. The rules
provide that the CRC “has the responsibility to provide a clean, pleasant, and safe
environment for public swimming.” Because “[s]ituations may occur that require
immediate corrective action[,]” the CRC grants lifeguards “full authority to act in order
to ensure the safety of swimmers.” The Brochure also contains a list of “General
Facility Rules,” including the following: “Only adults supervising children are permitted
inside [the] pool area wearing street clothes, and should remain back near the fence, not
up by the pool.”
During 2007, Jeff Brokamp was the principal of Mt. Washington Elementary
School, which is located next to Mt. Washington pool. For two days in “April or May”
of 2007, Kennedy allegedly was “staring” at children at the elementary school during a
field day. The children and teachers felt “uncomfortable” with Kennedy “standing very
close” to them. Therefore, the teachers sent two students into the school building to
inform Brokamp of the situation and their discomfort. Brokamp followed the students
into the field, watched Kennedy for a “few seconds[,]” and then approached and
introduced himself. Brokamp spoke with Kennedy for a “few minutes” and asked him
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 4
to move away from where the children were playing. Kennedy subsequently left the
area.
Ann Couzins was the pool manager for Mt. Washington pool in 2007. According
to Couzins, Mark Celsor, the director of the Mt. Washington Recreation Center, had
asked her to “keep an eye on” Kennedy even before he joined the pool because of the
incident that occurred at Mt. Washington Elementary School. This request was also
made by pool supervisor and defendant David Hudepohl, who asked Couzins “to go
ahead and keep an eye on him” and to maintain a log of Kennedy’s actions. Couzins
testified that for “four or five days in a row” she saw Kennedy “just standing outside the
gate watching the pool and looking at the kids.” She described his behavior as “a little
bit strange.”
In June 2007, Kennedy purchased a pool token from the CRC for $10. During
June, Kennedy frequently used the pool token to visit the CRC operated pool in the
neighborhood of Mt. Washington. As instructed, Couzins kept a record of the pool
staff’s observations of Kennedy. Couzins did not personally see Kennedy interacting
with any of the children at the pool but noted the observations of the other lifeguards.
She testified that “all” of the lifeguards “observed [Kennedy] . . . at the pool watching
the kids[,]” and that they “all felt uncomfortable around him[.]” Couzins specifically
described how lifeguard Jenny Sallee saw Kennedy “trying to . . . throw a ball with [a
boy] or follow him into the woods[.]”1 “[M]ultiple parents at the pool” also approached
Couzins to communicate “that they felt uncomfortable with [Kennedy’s] presence” at
the pool.
On June 20, 2007, Kennedy watched a swim meet at the pool. Tamara
Kluckman-Gory, a teacher at the Hamilton County Justice Center, noticed Kennedy
observing the meet with a “fixed smile, fixed kind of a scary smile.” Kluckman-Gory
testified that mothers were concerned that Kennedy was staring at the children, and she
had heard that there was worry that “somebody at the pool . . . could be a pedophile[.]”
1
The boy and his mother lived in Kennedy’s apartment building.
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 5
She decided to “confront[]” Kennedy and walked over to speak with him. After
exchanging pleasantries, Kluckman-Gory informed Kennedy that he was “kind of
creeping some people out.” Thereafter, Kennedy “mumbled something” and left the
pool area.
On June 21, 2007, Kennedy arrived at the pool and sat on a bench approximately
six feet from it. Kennedy was wearing a shirt, shorts, and sandals; he wore a swimsuit
beneath his shorts. Hudepohl observed Kennedy reading a newspaper, but suspected he
was actually watching children in the pool.
Hudepohl called his supervisor, Jincey Yemaya, who instructed Hudepohl to
contact the police. Hudepohl called the police and asked that Kennedy be investigated
“because he was removed from the playground for lurking and staring at young kids
during recess and . . . was seen by guards following children back into the woods.”2
Cincinnati Police Officers Christine Smith and Jeffrey Zucker arrived in the Mt.
Washington School parking lot, where they were met by Hudepohl. Hudepohl informed
the officers that: (1) Kennedy was wearing street clothes in violation of CRC rules and
regulations;3 (2) he had been “lurking along the fence line” and not swimming in the
pool area; (3) parents had expressed concerns regarding Kennedy’s behavior; (4) the
principal from Mt. Washington Elementary School had banned Kennedy from “Olympic
day”; and (5) Kennedy had been seen at a swim meet, standing at the fence watching
children.
Thereafter, the officers approached Kennedy in the pool area, accompanied by
Hudepohl. Zucker questioned Kennedy for approximately fifteen minutes, during which
time Zucker informed him that the officers were there “as a precaution” because people
2
The police report indicates that the police received a statement that a 44-year-old, white male,
6'0, wearing a blue and white floral shirt and brown shorts had been seen “following the kids into the
woods, daily, [for] a wk & has been kicked out [several] times, [for] lurking[.]”
3
Kennedy argues that this fact “is irrelevant, for it is undisputed that Mr. Kennedy’s clothing is
not the reason why Mr. Kennedy’s pool pass was confiscated, and is not the reason he was ordered off of
CRC property permanently.” Moreover, Hudepohl testified that, while he has consistently approached
other individuals for violating this rule and has asked them not to return to the pool wearing street clothes,
he has never reported them to the police or banned them from the pool.
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 6
were concerned Kennedy was “child watching.” While Zucker spoke with Kennedy,
Smith queried her computer to check whether Kennedy had any outstanding warrants or
whether he was listed as a sexual predator in Hamilton County. From her search, Smith
determined that Kennedy was not listed as a sexual predator and had no current warrants.
Zucker asked a few more questions regarding why Kennedy was at the pool, and then
terminated his investigation because his “basis for any reasonable suspicion to stop Mr.
Kennedy had ceased, because [he] had no crime that [he] could verify had been
committed, nor could [he] identify one that [was] being committed or [was] going to be
committed.” The officers subsequently asked Hudepohl how he wanted to proceed.
Hudepohl informed the officers that Kennedy would be banned from Mt.
Washington pool for the rest of the season, and that he would like the officers to retrieve
the pool token from Kennedy. Thereafter, Zucker approached Kennedy and told him
that Hudepohl, acting as an agent of CRC, was requesting that Kennedy surrender his
pool pass. In addition, Zucker informed Kennedy that Hudepohl was barring him from
“CRC property in Mt. Washington, i.e., the ball fields and the pool area, as well as Mt.
Washington School.”4 In response, Kennedy surrendered his pool pass and apparently
left Mt. Washington pool without incident.
On February 14, 2008, Kennedy filed an amended complaint in the Southern
District of Ohio, alleging that defendants Zucker, Hudepohl, and the City of Cincinnati
violated his constitutional rights by confiscating his property, and by restricting his
liberty, without due process of law.5 In addition, Kennedy pleaded a state law claim of
defamation, contending that Hudepohl defamed him by falsely implying that he had
engaged in serious sexual misconduct. On October 16, 2008, defendants moved for
summary judgment, arguing that they were entitled to qualified immunity because
4
Kennedy asserts that he was banned from “all municipal land and facilities operated by the
Cincinnati Recreation Commission[,]” not just the CRC grounds located in Mt. Washington. He supports
this claim with his affidavit, the testimony of Officer Smith that Zucker typed a computer entry stating that
Kennedy was “banned from CRC property,” and a copy of the incident report stating Kennedy was
“banned from CRC properties[.]”
5
Kennedy filed his first complaint on July 2, 2007, but did not name Hudepohl as a defendant at
that time. In addition to adding Hudepohl as a defendant in his amended complaint, Kennedy also
dismissed his claims against Smith, who was named as a defendant in the original complaint.
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 7
Kennedy failed to show that his clearly established rights were violated. On January 12,
2009, the district court granted summary judgment for the City of Cincinnati but denied
summary judgment for Zucker and Hudepohl, finding that “access to the public pools
constitutes a cognizable property interest” and that genuine issues of material fact exist
as to what process Kennedy was afforded regarding the revocation of his pool pass.6
Defendants Zucker and Hudepohl filed this interlocutory appeal on January 21,
2009.
II.
We must first consider whether we have jurisdiction to address defendants’
interlocutory appeal. 28 U.S.C. § 1291 limits our jurisdiction to “final decisions of the
district courts of the United States . . . .” Id. “A district court’s denial of qualified
immunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to the extent
that it turns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 309
(6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). A defendant
raising a qualified immunity defense “may not appeal a district court’s summary
judgment order insofar as that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995);
see also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is
denied qualified immunity may file an interlocutory appeal with this Court only if that
appeal involves the abstract or pure legal issue of whether the facts alleged by the
plaintiff constitute a violation of clearly established law.”). Nevertheless, that the
district court here denied defendants’ motion for summary judgment on the ground that
genuine issues of material fact exist does not necessarily preclude our jurisdiction over
defendants’ appeal. Rather, we have recognized that, “regardless of the district court’s
reasons for denying qualified immunity, we may exercise jurisdiction over the . . .
appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685, 689-90
6
The City of Cincinnati was dismissed as a defendant by the district court pursuant to Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 8
(6th Cir. 1999) (en banc) (internal quotation marks and citation omitted); see also Turner
v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
As we recognized in Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 403 (6th
Cir. 2007):
Language in our earlier decisions interpreting Johnson suggests that
where, as here, the appellant fails to concede the facts as alleged by the
appellee, this court is completely deprived of jurisdiction over the
appellant’s interlocutory appeal. See Berryman, 150 F.3d at 563 (“If . . .
the defendant disputes the plaintiff’s version of the story, the defendant
must nonetheless be willing to concede the most favorable view of the
facts to the plaintiff for purposes of the appeal.”). Subsequent cases,
however, have rejected that approach and clarified that we may consider
a pure question of law, despite the defendants’ failure to concede the
plaintiff’s version of the facts for purposes of the interlocutory appeal:
“If . . . aside from the impermissible arguments regarding disputes of
fact, the defendant also raises the purely legal question of whether the
facts alleged . . . support a claim of violation of clearly established law,
then there is an issue over which this court has jurisdiction.” Estate of
Carter, 408 F.3d at 310 (internal quotations and citation omitted); see
also Smith v. Cupp, 430 F.3d 766, 772 (6th Cir. 2005); but see McKenna
v. City of Royal Oak, et al., 469 F.3d 559, 561 (6th Cir. 2006) (holding
this court lacks jurisdiction to consider interlocutory appeal where
appellant relies solely on disputed facts).
We therefore conclude that we have jurisdiction to consider whether, accepting
as true the facts alleged by Kennedy, defendants are entitled to qualified immunity from
Kennedy’s claim of a due process violation. See Mehra, 186 F.3d at 689-90 (instructing
that this court has jurisdiction to consider whether facts, as alleged by plaintiff, entitle
defendant to summary judgment); Berryman, 150 F.3d at 562 (same).
III.
The Due Process Clause of the Fourteenth Amendment provides that no state
shall “deprive any person of life, liberty, or property, without due process of law[.]”
U.S. CONST. amend. XIV § 1. For Kennedy to prevail on his procedural due process
claim, he must show that he was deprived of a constitutionally-protected property or
liberty interest and that the deprivation occurred without due process. Zinermon v.
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 9
Burch, 494 U.S. 113, 125 (1990). “To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must, instead, have a
legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
Because he paid $10 to purchase the pool token, Kennedy claims he has “an enforceable
entitlement to the token,” which amounts to a property interest deserving of due process
protection. Although the parties dispute whether revocation of Kennedy’s pool pass was
meant to ban him only from Mt. Washington grounds or from all CRC properties, as
noted above, we must assume as true all facts alleged by plaintiff.
However, even assuming that Kennedy was banned from all CRC properties that
were generally open to the public, Kennedy cites no Ohio authority establishing a right
to enter CRC properties or a constitutionally-protected property interest in his pool pass.
See Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006) (explaining
that the question of whether a constitutionally-protected property interest exists is often
a question of state law). Kennedy’s reliance upon three cases in which the United States
Supreme Court or this court found a cognizable property interest is misplaced because
those cases involved significant interests related to an individual’s ability to engage in
an occupation or to provide sustenance to his family. See Barry v. Barchi, 443 U.S. 55,
64 (1978) (a horse trainer has a cognizable property interest in a horse trainer’s license
sufficient to invoke the protection of the Due Process Clause); Dixon v. Love, 431 U.S.
105, 112 (1977) (“Due Process Clause applies to the deprivation of a [truck] driver’s
license by the State[.]”); Banks v. Block, 700 F.2d 292, 297 (6th Cir. 1983) (food stamp
recipients have a cognizable interest in benefits during their unexpired certification
period). These heightened interests are clearly distinguishable from a $10 recreational
pool pass.
In this regard, the Supreme Court has recognized that, “[the] range of interests
protected by procedural due process is not infinite.” Ingraham v. Wright, 430 U.S. 651,
672 (1977) (internal quotation marks and citation omitted). A protected property interest
generally “must be more than [a] de minimis” interest. Omosegbon v. Wells, 335 F.3d
668, 674 (7th Cir. 2003). See, e.g., Laney v. Farley, 501 F.3d 577, 584 (6th Cir. 2007)
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 10
(finding “a one day in-school suspension to be a de minimis deprivation”); Gillard v.
Norris, 857 F.2d 1095, 1098 (6th Cir. 1988) (finding a police officer’s three-day
suspension from work to be a de minimis deprivation of property not deserving of due
process protection). Here, although Kennedy arguably had a property interest in his $10
pool pass of which the City deprived him, “the nature of [that] interest” is de minimis
when viewed against the background of reason, Supreme Court case law, and this court’s
past decisions. Roth, 408 U.S. at 571. Accordingly, we hold that Kennedy did not have
a property interest “sufficient to invoke the procedural protections of the Due Process
Clause.” Meachum v. Fano, 427 U.S. 215, 224 (1976).
IV.
Kennedy next claims his ban from CRC properties deprived him of his liberty
interest to enter certain public spaces, as guaranteed by the Due Process Clause of the
Fourteenth Amendment. In City of Chicago v. Morales, 527 U.S. 41 (1999), the United
States Supreme Court addressed Chicago’s “Gang Congregation Ordinance,” which
prohibited “criminal street gang members” from “loitering” in public places. Id. at 45-46
(internal quotation marks omitted). In addressing the overbreadth doctrine, Justice
Stevens, writing for the plurality, stated:
[T]he freedom to loiter for innocent purposes is part of the “liberty”
protected by the Due Process Clause of the Fourteenth Amendment. We
have expressly identified this “right to remove from one place to another
according to inclination” as “an attribute of personal liberty” protected
by the Constitution. Williams v. Fears, 179 U.S. 270, 274 (1900); see
also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972). Indeed, it
is apparent that an individual’s decision to remain in a public place of his
choice is as much a part of his liberty as the freedom of movement inside
frontiers that is “a part of our heritage[,]” Kent v. Dulles, 357 U.S. 116,
126 (1958), or the right to move “to whatsoever place one’s own
inclination may direct” identified in Blackstone’s Commentaries. 1 W.
Blackstone, Commentaries on the Laws of England 130 (1765).
Id. at 53-54 (footnotes omitted). See also Anthony v. Texas, 209 S.W.3d 296, 307-08
(Tx. Ct. App. 2006) (holding plaintiff “clearly had a liberty interest [to enter a public]
park.”).
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 11
Assuming that Kennedy’s version of the facts are true, defendants have barred
Kennedy from entering any property deemed a part of the City of Cincinnati’s
recreational system, which presumably encompasses more than its public pools, and
certainly encompasses more than Mt. Washington pool. “The City’s action is
reminiscent of a partial banishment, which serves to expel [Kennedy] from certain
portions of City property[.]” Doe v. City of Lafayette, 377 F.3d 757, 780 (7th Cir. 2004)
(en banc) (Williams, J., dissenting) (citing Smith v. Doe, 538 U.S. 84, 98 (2003))
(discussing banishment as a measure historically recognized as punishment). Thus, it
is clear that Kennedy had a liberty interest “to remain in a public place of his choice”
and that defendants interfered with this interest. Morales, 527 U.S. at 54.
V.
At oral argument, Kennedy’s counsel conceded that his client had not sufficiently
alleged a procedural due process claim against Hudepohl. In light of this concession,
we reverse the part of the district court’s order denying Hudepohl qualified immunity
on the alleged constitutional violation of Kennedy’s due process rights. Kennedy’s state
law claim of defamation against Hudepohl was not raised in this interlocutory appeal and
may proceed in the district court. Thus, below we limit our discussion to the part of the
district court’s order denying Zucker qualified immunity.
VI.
“We review the denial of summary judgment on grounds of qualified immunity
de novo because application of this doctrine is a question of law.” McCloud v. Testa, 97
F.3d 1536, 1541 (6th Cir. 1996). “The doctrine protects all but the plainly incompetent
or those who knowingly violate the law.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.
2008) (internal quotation marks and citations omitted). When the defendant raises a
defense of qualified immunity, the plaintiff bears the burden of demonstrating that the
defendant is not entitled to such immunity. Silberstein v. City of Dayton, 440 F.3d 306,
311 (6th Cir. 2006).
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 12
“Through the use of qualified immunity, the law shields ‘government officials
performing discretionary functions . . . from civil damages liability as long as their
actions could reasonably have been thought consistent with the rights they are alleged
to have violated.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir.
2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). In determining
whether a defendant is entitled to qualified immunity, the court makes two inquiries:
(1) “[t]aken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional right[,]” and (2) was the right
clearly established to the extent that a reasonable person in the officer’s position would
know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201
(2001). Although Saucier mandated that these questions be addressed in order, that
requirement has since been relaxed. See Pearson v. Callahan, — U.S. — , 129 S. Ct.
808, 818 (2009) (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded
as mandatory.”).
Here, after Zucker questioned Kennedy for approximately fifteen minutes, he
determined that his “basis for any reasonable suspicion to stop Mr. Kennedy had ceased,
because [he] had no crime that [he] could verify had been committed, nor could [he]
identify one that [was] being committed or [was] going to be committed.” Zucker
informed Hudepohl of this fact, but Hudepohl still asked Zucker to confiscate Kennedy’s
pool pass and to order him off the premises. Zucker fully complied with this request,
and, arguably, ordered Kennedy to not enter any CRC property for an indefinite period
of time.
Zucker avers that he should be immune from suit because he was following the
orders of Hudepohl, an agent of the municipal pool. However, “since World War II, the
‘just following orders’ defense has not occupied a respected position in our
jurisprudence, and officers in such cases may be held liable under § 1983 if there is a
reason why any of them should question the validity of that order.” O’Rourke v. Hayes,
378 F.3d 1201, 1210 n.5 (11th Cir. 2004) (internal quotations marks and citation
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 13
omitted). Regardless of the authority Hudepohl possessed, Zucker was not “relieve[d]
. . . of his responsibility to decide for himself whether to violate clearly established
constitutional rights[.]” Id. at 1210. “[U]nder the Supremacy Clause, public officials
have an obligation to follow the Constitution even in the midst of a contrary directive
from a superior or in a policy.” N.N. ex rel. S.S. v. Madison Metro. Sch. Dist., — F.
Supp. 2d —, 2009 WL 4067779, at *6 (W.D. Wis. Nov. 24, 2009). See, e.g., Glasson
v. City of Louisville, 518 F.2d 899, 903-04 (6th Cir. 1975) (officer that was following
police chief’s order was not immune from suit). Thus, viewing the facts alleged in the
light most favorable to Kennedy, we conclude that Zucker violated Kennedy’s
constitutional rights by banning him from all City recreational property without due
process of law.
We must therefore determine whether Kennedy’s right to lawfully remain in
public spaces was clearly established. “[I]n the ordinary instance, to find a clearly
established constitutional right, a district court must find binding precedent by the
Supreme Court, its court of appeals or itself.” Ohio Civil Serv. Employees Ass’n v.
Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988). Yet, to be “clearly established” there need
not be a prior case deciding that “the very action in question has previously been held
unlawful[.]” Anderson, 483 U.S. at 640. In McCloud, we noted that if courts required
prior precedent on the specific facts at issue in the pending case, “qualified immunity
would be converted into a nearly absolute barrier to recovering damages against an
individual government actor. . . .” McCloud, 97 F.3d at 1557. “[G]eneral statements of
the law are not inherently incapable of giving fair and clear warning, and in other
instances a general constitutional rule already identified in the decisional law may apply
with obvious clarity to the specific conduct in question[.]” United States v. Lanier, 520
U.S. 259, 271 (1997).
It is apparent that Kennedy had a clearly established right to remain on public
property based on the Supreme Court’s holdings in Fears, 174 U.S. at 274,
Papachristou, 405 U.S. at 164, Kent, 357 U.S. at 126, and Morales, 527 U.S. at 53-54.
“[T]he preexisting law was sufficient to provide the defendant with ‘fair warning’ that
No. 09-3089 Kennedy v. City of Cincinnati, et al. Page 14
his conduct was unlawful.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)
(quoting Lanier, 520 U.S. at 270-71). Any competent government official, particularly
a police officer, should have realized that he cannot deprive a person, who has not
committed a crime or violated some regulation, nor was likely to do so, of access to
public grounds without due process of law. Therefore, we hold that for purposes of
defendants’ motion for summary judgment, Kennedy possessed a constitutionally-
protected liberty interest to use municipal property open to the public and that depriving
him of his liberty interest, without procedural due process, constituted a violation of a
clearly established constitutional right.7
VII.
For these reasons, we affirm in part, and reverse in part, the judgment of the
district court, and remand for further proceedings consistent with this opinion.
7
As the district court noted, “entry of judgment regarding qualified immunity must await the
jury’s resolution of the disputed facts as to the process afforded.” Moreover, the scope and duration of
Kennedy’s ban from CRC grounds, as well as whether or not the facts support a revocation for good cause
under the pool’s rules, remain in dispute. Therefore, the trier of fact will need to resolve these genuine
issues of material fact before a final determination regarding qualified immunity can be made.