Wendell Shane Mackey v. Jeff Rising ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0145p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
WENDELL SHANE MACKEY,
│
Plaintiff-Appellant, │
│
v. > No. 22-2165
│
│
JEFF RISING, │
Defendant-Appellee, │
│
│
CITY OF ADRIAN, MICHIGAN; AMERITRUST GROUP, │
INC., │
Respondents. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-13408—Nancy G. Edmunds, District Judge.
Argued: October 26, 2023
Decided and Filed: July 1, 2024
Before: MOORE, READLER, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for
Appellant. Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for
Appellee and Respondents. ON BRIEF: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC,
Bingham Farms, Michigan, for Appellant. Christian C. Huffman, GARAN LUCOW MILLER,
P.C., Detroit, Michigan, for Appellee and Respondents.
No. 22-2165 Mackey v. Rising, et al. Page 2
_________________
OPINION
_________________
MURPHY, Circuit Judge. State employees do not work for the State every hour of the
day. They also undertake all sorts of private activities on their own time. Yet the Fourteenth
Amendment restricts only the actions of a “State,” and 42 U.S.C. § 1983 grants a remedy only
against those who act “under color of” a state law, custom, or the like. So what distinguishes an
employee’s state actions that trigger these provisions from the employee’s private actions that do
not? The Supreme Court recently addressed this topic in a decision about an employee’s use of
social media: Lindke v. Freed, 601 U.S. 187 (2024).
This case allows us to apply Lindke’s guidance. Jeff Rising, a real-estate agent, served
one term as a part-time City Commissioner for Adrian, Michigan. Shane Mackey, a local
resident, posted information about Rising on Facebook that Rising believed to be false. Rising
responded by calling Mackey’s mother. During this call, Mackey alleges, Rising threatened to
“hurt” him if he did not delete the post (an allegation that Rising denies). Mackey sued. He
argued that Rising’s threat of physical violence violated the First Amendment because Rising
made it in his capacity as a Commissioner to stifle Mackey’s speech. Early on in the suit, Rising
accepted the City’s insurance to pay for his defense. But he then testified that he had called
Mackey’s mother as a private citizen. According to Mackey, Rising’s use of the City’s insurance
showed that Rising had waived (or should be judicially estopped from raising) his lack-of-state-
action defense.
Mackey is wrong on both fronts. Rising served as a legislator, not a police officer. The
City of Adrian thus did not grant him any “authority” to use (or threaten) physical force on its
behalf. Id. at 198. And because the City “did not entrust” Rising with this power, his alleged
“misuse” of the power cannot qualify as state action. Id. at 199–200. Next, Rising accepted the
City’s insurance for his defense because he maintained that the insurer’s duty to defend turned
on Mackey’s allegations alone (which claimed that Rising had acted for the City). Because his
state-action defense on the merits did not conflict with his view of the insurer’s duty to defend,
No. 22-2165 Mackey v. Rising, et al. Page 3
neither waiver nor judicial estoppel apply. We thus affirm the grant of summary judgment to
Rising.
I
The small City of Adrian sits about sixty miles to the southwest of Detroit. The City’s
government includes an elected City Commission (its legislative body) made up of six
Commissioners and a Mayor. This Commission bears the responsibility to, among other things,
enact the City’s ordinances and approve the City’s budget.
In 2013, Jeff Rising decided to run for a seat on the Commission at the suggestion of a
retiring Commissioner. Rising had lived in Adrian for decades but never served in government.
He had instead built a successful real-estate business under the RE/MAX name. In November,
Adrian voters elected Rising to a four-year term as a Commissioner. In the same election, Jim
Berryman won the mayoral race. The two developed a good working relationship.
Over the next four years, Rising regularly attended the Commission’s meetings twice a
month to conduct the City’s legislative business. The City did not provide him with an office,
car, computer, or phone. He thus used his private property to perform his public duties. But the
City did give him an official Facebook account and email address. It also paid him a small
stipend ($700 after taxes) every three months.
When the next election approached in November 2017, Berryman and Rising both had to
consider whether to seek another term. Berryman chose to run for reelection as Adrian’s Mayor.
But Rising decided to leave public service.
Shane Mackey decided to run for a Commissioner seat during this 2017 election.
Leading up to the election, he became a regular at the Commission’s meetings. He had long
harbored animosity toward Berryman. Thirty years earlier, the State had convicted Mackey of
breaking into Berryman’s flower shop. Berryman v. Mackey, 935 N.W.2d 94, 97 (Mich. Ct.
App. 2019). At a meeting, Mackey accused Berryman of engineering his lengthy sentence for
this crime. See id. He also called Berryman “crooked” for decisions he made as Mayor. Id. at
97–98.
No. 22-2165 Mackey v. Rising, et al. Page 4
Apart from speaking at meetings, Mackey used the internet to criticize the Mayor and
Commissioners. He created an anonymous blog (www.exposingadrian.com) dedicated to
disclosing the Commission’s purported misdeeds. His posts alleged, among other things, that the
Commission had violated Michigan’s open-meetings law, misused funds, and awarded lucrative
contracts to “cronies.” He separately created an anonymous Facebook page (“Anyone But
Berryman”) that disparaged the Mayor and Commissioners. For example, the page’s profile
picture superimposed Berryman’s face on a picture of Adolf Hitler in a Nazi uniform.
While Rising had decided not to seek reelection, he did not escape Mackey’s ire. In a
June 2017 post, Mackey criticized all the Commissioners (including Rising) for living in the
same upscale part of Adrian. The post contained a map with a picture of each Commissioner
over that Commissioner’s home. Worried that Mackey had disclosed his address online, Rising
asked the police for extra patrols around his street.
Mackey “strategically waited” until weeks before the election to reveal more salacious
information about Rising. Mackey Aff., R.48, PageID 1286. In 2000, Rising had worked as an
emcee and backup dancer for a traveling show affiliated with Chippendales (the company known
for its risqué male dancers). Around 10:30 p.m. on October 14, Mackey posted on his “Anyone
But Berryman” Facebook page a picture of Rising and five men in their signature Chippendales
uniform (shirtless with a bow tie around their necks and shirt cuffs around their wrists).
Mackey’s caption to this picture accused Rising of using cocaine and affiliating with a criminal:
“Here’s our morally corrupt, former cocaine using City Commissioner Jeffrey Rising sitting next
to his convicted felon buddy John Stepansky, who robbed the China Buffet. And these nasty
people claim to take the moral high road. #CorruptPolitician #Shameful.” Facebook Page, R.48,
PageID 1401.
Rising had spent the evening relaxing at home while consuming “[t]hree or four” cans of
Miller Lite. Rising Dep., R.48, PageID 1366–67, 1377. He saw the Anyone But Berryman post
because the anonymous author tagged him. Rising assumed that Mackey ran this Facebook
page. He also knew Mackey’s mother—Alice Mackey—because she was a fellow real-estate
agent in Adrian. Rising thus responded to the post using his personal Facebook account: “Nice
No. 22-2165 Mackey v. Rising, et al. Page 5
try Shane Mackey. My past isn’t a secret. Alice Mackey get your kid in line.” Facebook Page,
R.48, PageID 1402.
On seeing this comment, Mackey responded (under the Anyone But Berryman moniker):
“So your cocaine use isn’t a secret? Then surely you’ll have no problem discussing it during the
next City Commission meeting, right? In light of Mackey’s litigation record and Berryman’s
inability to get even a PPO to stick against him, you might want to think before defaming people.
#NoMoreCocaineComissioners.” Id. Mackey posted several more comments ridiculing Rising
and Berryman over the next hour.
As the night wore on, Rising grew increasingly alarmed by Mackey’s post. He had never
used cocaine. And he had not seen John Stepansky (the alleged criminal in the picture) for years.
Rising worried that the post’s claims could harm his “reputation as a business owner in the
community.” Rising Dep., R.48, PageID 1378. He wanted Mackey to delete the post “before
thousands of people saw it.” Id. Rising did not have Mackey’s phone number, but he did have
the contact information of Adrian’s real-estate agents, including Mackey’s mother. Rising
decided to call her around 12:30 a.m. Despite the late hour, she answered.
The parties dispute what Rising said to Mackey’s mother. According to Mackey, Rising
made threats. Mackey’s mother recalled Rising stating: “You better tell that motherfucking
piece of shit son of yours that [he] better quit posting/putting on Facebook shit about me.”
Mackey Aff., R.48, PageID 1288. She responded by asking if Mackey had posted something
about Rising. Rising retorted: “He’s doing it right now and I’m telling you [he] better stop it or
somebody is going to get hurt.” Id. (emphasis omitted). According to Rising, he did not use
profanity or threaten anyone. He merely asked Ms. Mackey to convince her son to remove what
he thought were “inflammatory” and “untrue” statements about him. Rising Dep., R.48, PageID
1364, 1377. At this stage of the case, we must accept Mackey’s version of this conversation.
See Gambrel v. Knox County, 25 F.4th 391, 401 (6th Cir. 2022).
A few days later, Mackey’s mother reported Rising’s late-night call to the police. The
police opened an investigation. Ultimately, an investigator found that there was “no way to
prove what words Mr. Rising used when he made the phone call[.]” Report, R.48, PageID 1410.
No. 22-2165 Mackey v. Rising, et al. Page 6
In the ensuing months, Mackey and Rising encountered each other a few more times.
Rising skipped the next Commission meeting, but he attended the following one (his last as a
Commissioner). He asked the police to escort him to his car at the meeting’s end because
Mackey looked agitated in the audience. A month after the election (which Berryman and
Mackey both lost), Mackey also allegedly threatened Rising when they ran into each other at a
restaurant. They have not spoken since.
Roughly two years after these events, Mackey brought this suit under 42 U.S.C. § 1983over Rising’s late-night phone call to his mother. As relevant to this appeal, Mackey asserted
that Rising’s threats on the call violated the First Amendment because he made them as a city
official in retaliation for Mackey’s political criticism.
Rising (now just a private citizen) alerted Adrian of Mackey’s suit because the events had
occurred during his time as a City Commissioner. The City forwarded the complaint to its
unique insurer: the “Michigan Municipal League Liability and Property Pool” (what we will call
the “Liability Pool” for short). Michigan law allows municipalities to form and pay for a “group
self-insurance pool” that will provide insurance to them and their employees “for acts or
omissions arising out of the scope of their employment[.]” Mich. Comp. Laws § 124.5(1).
Municipalities formed the Liability Pool under this law. Adrian later joined it.
The Liability Pool sent Rising a letter noting that it had appointed lawyers to defend him.
It reasoned that its duty to defend Rising depended on the “allegations” in Mackey’s complaint
even if Rising would dispute those allegations in the suit. Letter, R.25-3, PageID 693. And the
complaint’s allegations suggested that Rising had threatened Mackey in his capacity as a City
Commissioner.
During his deposition, however, Rising opined that he had not called Mackey’s mother in
his official capacity. This testimony led Mackey to move the district court to enjoin Rising from
using the Liability Pool’s “public funds” for his defense. Mot., R.23, PageID 574. Because
Michigan law barred the City from reimbursing Rising for private conduct, Mackey reasoned,
Rising had a choice between two options: admit that he acted in his official capacity or decline
the Liability Pool’s funds. A magistrate judge denied Mackey’s motion.
No. 22-2165 Mackey v. Rising, et al. Page 7
The district court later granted summary judgment to Rising. It concluded that he had
acted as a private citizen when he made the alleged threats. Mackey v. Rising, 2022 WL
17325916, at *4 (E.D. Mich. Nov. 29, 2022). It also rejected Mackey’s argument that Rising
could not raise his state-action defense because he chose to accept the Liability Pool’s funds.
See id. at *3. We review this decision de novo. See Waters v. City of Morristown, 242 F.3d 353,
358 (6th Cir. 2001).
II
Mackey raises two general arguments on appeal. He first claims that a dispute of fact
exists over whether Rising acted in his capacity as a City Commissioner when he called
Mackey’s mother. He next claims that Rising cannot raise his state-action defense because of
Rising’s choice to accept legal representation from the Liability Pool. Both arguments lack
merit.
A. Did Rising call Mackey’s mother as a “state actor”?
Mackey asserts a § 1983 claim against Rising for violating his “freedom of speech” under
the First Amendment. The constitutional and statutory parts of Mackey’s claim both contain a
“state action” element. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928–29 (1982). As a
constitutional matter, the Fourteenth Amendment expanded the First Amendment to cover the
speech-suppressing actions of a “State.” U.S. Const. amend. XIV, § 1. Yet the First
Amendment still does not reach a private party’s efforts to stifle speech. See Manhattan Cmty.
Access Corp. v. Halleck, 587 U.S. 802, 808 (2019). As a statutory matter, § 1983 allows
plaintiffs to sue a defendant who “subjects” them “to the deprivation” of their “rights” if the
defendant acts “under color of any statute, ordinance, regulation, custom, or usage, of any
State[.]” 42 U.S.C. § 1983. Yet this text likewise does not reach a private defendant’s actions.
See Lindke, 601 U.S. at 194.
1. What distinguishes “state” action from “private” action?
The Supreme Court has long interpreted these constitutional and statutory state-action
requirements in an “identical” way. Id. at 195 (quoting Lugar, 457 U.S. at 929). Because States
No. 22-2165 Mackey v. Rising, et al. Page 8
today often hire full-time public staff to carry out their functions, “state action is easy to spot”
most of the time. See id.; West v. Atkins, 487 U.S. 42, 49–50 (1988). That said, courts often
confront two different (yet equally “difficult”) state-action problems. Lindke, 601 U.S. at 195–
96.
The first arises from the States’ traditional practice of hiring ostensibly private parties
(such as doctors) to perform public services (such as the provision of medical care to prisoners).
See West, 487 U.S. at 43–44; see also Filarsky v. Delia, 566 U.S. 377, 385 (2012). When do
these private parties qualify as state actors under the Constitution and § 1983? The Supreme
Court has adopted various tests (a public-function test, a state-compulsion test, and a nexus text)
to answer this question. See Lugar, 457 U.S. at 939. We need not consider any of these tests
here.
This case instead concerns the second state-action problem. See Lindke, 601 U.S. at 196.
All agree that Adrian City Commissioners like Rising qualify as “state actors.” Cf. Lozman v.
City of Riviera Beach, 585 U.S. 87, 91–92 (2018); Bogan v. Scott-Harris, 523 U.S. 44, 46–48
(1998). But state officials have private lives. So how should we distinguish their official
conduct (which falls within the Fourteenth Amendment and § 1983) from their “personal”
conduct (which falls outside those provisions)? Screws v. United States, 325 U.S. 91, 111 (1945)
(plurality opinion).
The Supreme Court in Lindke recently addressed this question in the social-media
context. 601 U.S. at 190–91. There, a city manager wrote posts about both family matters and
job-related matters on his personal Facebook page. Id. at 191–93. In comments to some of these
posts, a city resident criticized the city’s response to the COVID pandemic. Id. at 193. The
manager deleted these comments and later blocked the resident from commenting on his
Facebook page. Id. The resident sued, alleging that this conduct violated the First Amendment.
Id. The Court thus had to consider whether the city manager had operated his Facebook page as
a private citizen or city official. Id. Ultimately, it adopted a two-part test to determine whether
the manager had spoken for the city in his social-media posts. Id. at 191. First, the manager
must have “possessed actual authority to speak on the State’s behalf” in the social-media posts.
No. 22-2165 Mackey v. Rising, et al. Page 9
Id. Second, the manager must have “purported to exercise that authority when he spoke on
social media.” Id.Outside the social-media context, our court—and the Supreme Court—have long
followed a similar two-part test. When asking whether a challenged action qualified as state
action, we described the “the controlling issue” as whether an official “possessed state authority”
to take the action “and whether [the official] purported to act under that authority” on the specific
occasion. Dean v. Byerley, 354 F.3d 540, 553 (6th Cir. 2004); see Griffin v. Maryland, 378 U.S.
130, 135 (1964). The Supreme Court in Lindke seemingly tailored this general test to the
specific social-media context. See, e.g., 601 U.S. at 191, 194, 197, 201, 203, 204. It also
cautioned that courts should apply a “fact-intensive inquiry” when answering state-action
questions and recognized the “rapidly changing” nature of social media. Id. at 197. Given this
caution, we need not decide on the precise formulation that governs here. Under either
formulation, Rising did not possess state authority to threaten violence against Mackey or his
mother.
We reach that conclusion without proceeding past the first element: Did a state statute,
ordinance, regulation, custom, or usage give the defendant the “actual” or “state” “authority” to
engage in the relevant conduct? Id. at 191; Dean, 354 F.3d at 553. This element requires courts
to identify the “nature of the act” that the plaintiff challenges, Stengel v. Belcher, 522 F.2d 438,
441 (6th Cir. 1975) (citation omitted), and to compare that act with the state-assigned
“responsibilities” of the official who committed it, Lindke, 601 U.S. at 199. The state official
possesses the authority to take a challenged action only if the action meaningfully relates to the
official’s “governmental status” or the “performance of his duties.” Waters, 242 F.3d at 359.
This test produces some easy answers. Most obviously, a state employee’s conduct will
meet the test if a state regulation tasked the employee with engaging in the specific conduct at
issue. Consider our oft-cited decision in Stengel. There, a police officer shot three bar patrons
while attempting to end a middle-of-the-night bar fight. 522 F.2d at 440. Although the officer
was off-duty and out of uniform, “police department regulations” vested him with the
authority—indeed, the duty—to stop crime “24 hours a day.” Id. at 441. And state officials later
approved the officer’s force as consistent with these regulations. Id.
No. 22-2165 Mackey v. Rising, et al. Page 10
But things are not always so simple. In some situations, an official might possess the
required state authority even if the State did not permit the conduct. In other situations, an
official might not possess this state authority even if the State did permit it.
Begin with the first set of situations: A state official’s conduct can qualify as state action
even if the “particular action which he took” (say, a police officer’s use of excessive force) “was
not authorized by state law” (say, because it violated a State’s use-of-force regulations). Griffin,
378 U.S. at 135; see Screws, 325 U.S. at 111 (plurality opinion). Ever since Monroe v. Pape,
365 U.S. 167 (1961), the Supreme Court has held that § 1983 covers state actors when they
exercise authority delegated by the State—“whether they act in accordance with their authority
or misuse it.” Id. at 172. Or, as Lindke put it, state officials can satisfy the Court’s “actual
authority” test even if they go beyond (or “[m]isuse”) the power that the State has entrusted
them. 601 U.S. at 199 (quoting Classic, 313 U.S. at 326). Even before Lindke, our cases made
the same point when they noted that officers can engage in state action if their conduct arose
from an “apparent duty” of their office or “ostensible state authority[.]” Waters, 242 F.3d at 359
(emphases added). We interpret these statements—consistent with Lindke—to cover fact
patterns when an official exercises state authority but exceeds the scope of the delegation. 601
U.S. at 200.
So what distinguishes the misuse of authority from the absence of authority? The
Supreme Court has offered little guidance on this subject. But it has clarified that we must look
beyond whether the State has permitted the “particular action” that a plaintiff challenges. Id.
(quoting Griffin, 378 U.S. at 135) (emphasis added). We must instead ask whether the State has
delegated the general “type of authority” that an official exercised. Id. Our cases about police
officers prove this point. We often hold that the police engaged in state action when they
purported to exercise law-enforcement powers—without stopping to ask whether their actions
violated state regulations on, say, using force. See Kalvitz v. City of Cleveland, 763 F. App’x
490, 495–96 (6th Cir. 2019); Barkovic v. Hogan, 505 F. App’x 496, 500 (6th Cir. 2012);
McGuire v. City of Royal Oak, 295 F. App’x 736, 738–39 (6th Cir. 2008); Parks v. City of
Columbus, 395 F.3d 643, 652 (6th Cir. 2005); Memphis, Tenn. Area Loc., Am. Postal Workers
No. 22-2165 Mackey v. Rising, et al. Page 11
Union v. City of Memphis, 361 F.3d 898, 903–04 (6th Cir. 2004); Layne v. Sampley, 627 F.2d 12,
13 (6th Cir. 1980).
Turn to the second set of situations: A state official’s conduct might qualify as private
action even if the State gave the official the authority to engage in the conduct in an abstract
sense. States authorize (that is, permit) public and private parties alike to do many things. They,
for example, permit their residents to file defamation suits against those that make false
statements about them. Yet this state “authorization” does not transform all private citizens into
state actors whenever they pursue defamation claims. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 53–54 (1999); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164–65 (1978). And that
rule applies even if the plaintiffs are state officials who threaten private defamation suits “to
safeguard their personal reputations.” Meadows v. Enyeart, 627 F. App’x 496, 501 (6th Cir.
2015); see How v. City of Baxter Springs, 217 F. App’x 787, 791–96 (10th Cir. 2007); Gritchen
v. Collier, 254 F.3d 807, 812–14 (9th Cir. 2001). To create state action, then, a State must do
more than permit all parties (public and private alike) to engage in the conduct at issue. The
State must instead entrust a party with “state authority.” Dean, 354 F.3d at 553.
This distinction matters. Even if a State permits a state official (like a “private citizen”)
to engage in certain conduct, the conduct will not qualify as state action if it falls outside the
duties that the State has tasked the official to perform and if instead the State has permitted
anyone to engage in the activity. Redding v. St. Eward, 241 F.3d 530, 533 (6th Cir. 2001). So a
state-agency official did not engage in state action when he participated in political activities.
See Libertarian Party of Ohio v. Husted, 831 F.3d 382, 390–91, 396–97 (6th Cir. 2016). The
political activities (such as public-records requests) had nothing to do with his duties for the
agency, and any private person could have engaged in them. Id. at 396–97. Similarly, a city
alderman did not engage in state action while committing domestic abuse even though he
sometimes asked the police to search for his victim. See Waters, 242 F.3d at 355–57, 359–60.
None of his conduct, including his requests to the police, arose from his “responsibility as an
alderman.” Id. at 360. Rather, the police helped him find the victim (his purported “friend”) in
the same way they would help any “citizen” search for missing “relatives[.]” Id. Likewise, a
police officer did not engage in state action when she called 911 on a suspect who repeatedly
No. 22-2165 Mackey v. Rising, et al. Page 12
knocked on the door in the middle of the night. Redding, 241 F.3d at 531–33. Anyone has the
power to call 911, and the officer did not perform any law-enforcement duties during this
encounter. Id. at 533; see also Blackwell v. Allen, 2022 WL 17832191, at *8 (6th Cir. Dec. 21,
2022); Burris v. Thorpe, 166 F. App’x 799, 802 (6th Cir. 2006); Corder v. Metro. Gov’t of
Nashville & Davidson County, 1990 WL 33708, at *3 (6th Cir. Mar. 27, 1990) (per curiam).
That said, we must not take any analogy to private conduct too far. If the State does
assign an official a duty to engage in an action as part of the official’s state job responsibilities,
“[i]t is irrelevant that he might have taken the same action had he acted in a purely private
capacity[.]” Griffin, 378 U.S. at 135. The conduct will still qualify as state action even though
the official could have performed the same task as a private party. See Dean, 354 F.3d at 553.
For example, although any private person can complain to a state bar about an attorney, a bar
official engages in state action if he makes a complaint while undertaking his official bar-related
duties. See id.
2. Did Rising’s conduct meet these state-action standards?
These principles foreclose Mackey’s claim. The City of Adrian did not give Rising the
authority to engage in the conduct that Mackey challenges in this suit. See Lindke, 601 U.S. at
198; Dean, 354 F.3d at 553. Our path to that conclusion starts by identifying the “nature of the
act” at issue. Stengel, 522 F.2d at 441 (citation omitted). Recall that, shortly before the
November 2017 election, Mackey published a Facebook post that described Rising as a “corrupt”
politician and claimed that he had used cocaine and associated with a robber. Facebook Page,
R.48, PageID 1401. Rising reacted to this post by calling Mackey’s mother late at night. During
this call, Rising allegedly threatened “Mackey and his family with bodily harm” by stating that
“somebody is going to get hurt” if Mackey did not delete his critical commentary. Appellant’s
Br. 48; Mackey Aff., R.48, PageID 1288. Mackey argues that Rising’s threat of physical
violence violated the First Amendment because Rising made the threat in response to Mackey’s
political speech.
We thus must ask whether the alleged threat of violence qualified as the “type of
authority” that the City vested in Rising as a City Commissioner. Lindke, 601 U.S. at 200.
No. 22-2165 Mackey v. Rising, et al. Page 13
While the question whether a particular task falls within an official’s duties often requires
“careful attention” to the governing state regulations or customs, id., we find the answer obvious
in this case. Rising served in Adrian’s “legislative” body. Adrian City Charter § 4.1. Unlike
police officers, legislators generally lack the power to wield the State’s monopoly on the use of
force. See Wilson v. Price, 624 F.3d 389, 393 (7th Cir. 2010); Waters, 242 F.3d at 356–57, 359–
60.
Mackey also points to no Adrian-specific “statute, ordinance, regulation, custom, or
usage” that might compel a different result here. 42 U.S.C. § 1983. Adrian gave its
Commissioners the power to perform typical legislative tasks for the City (such as passing
ordinances and budgets). Rising could not even perform these tasks alone. Rather, the
Commission needed a “quorum” (defined as a “majority”) “for the transaction of business at all
commission meetings[.]” Adrian City Charter § 6.5; cf. Waters, 242 F.3d at 360. The City, by
contrast, assigned its city administrator the authority “[t]o see that all laws and ordinances are
enforced[.]” Adrian City Charter § 4.10(b). And it did not permit Commissioners to “give
orders” to the City’s administrative staff; Commissioners instead had to communicate with the
executive branch exclusively through its city administrator. Id. § 4.7. Rising thus testified that
he was not “carrying out” his “duties” as a City Commissioner either when he used his personal
Facebook account to comment on Mackey’s post or when he later called Mackey’s mother about
it. Rising Dep., R.48, PageID 1393. He instead made this call to protect his “reputation as a
business owner” in Adrian. Id., PageID 1378. Rising was not even seeking reelection at this
time.
Nor can Mackey fall back on the claim that Rising’s threat of violence qualifies as a
“misuse” of the power that the City allowed him to exercise on its behalf. Lindke, 601 U.S. at
200. Even if the divide between the misuse of power and the absence of power can be difficult
to draw, we see no difficulty here. Mackey identifies no legislative power that Rising’s alleged
threat could conceivably fall under. Critically, Mackey agrees that Rising threatened only
physical harm—not the types of harm that legislators might inflict. For example, Mackey does
not claim that Rising threatened to enact a harmful ordinance (or initiate a costly legislative
investigation) as payback for the criticism. Cf. Meadows, 627 F. App’x at 501; see also Evans v.
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United States, 504 U.S. 255, 260–61 (1992). Mackey also does not claim that Rising ordered the
police to remove Mackey during a Commission meeting under its rules of procedure.
Cf. Lozman, 585 U.S. at 91–92. Mackey instead claims that, apart from any official legislative
task, Rising threatened to physically assault Mackey during a middle-of-the-night phone call.
Cf. Blackwell, 2022 WL 17832191, at *7–9. Rising lacked any power to make this type of threat
on the City’s behalf. And “one cannot misuse power one does not possess.” Wilson, 624 F.3d at
393; see Lindke, 601 U.S. at 200.
Even if Rising lacked the power to use force for the City, Mackey responds, Rising had
the power to speak to residents on the City’s behalf outside official meetings. To support this
claim, Mackey notes that Rising testified that he used his personal cellphone interchangeably to
make both government and private calls. Rising distinguished between the two types of calls
based on “the topic of the conversation[.]” Rising Dep., R.48, PageID 1390. And because the
“topic” of Rising’s conversation with Mackey’s mother concerned Mackey’s criticisms of
Rising’s service as a Commissioner, Mackey concludes that Rising must have spoken to her in
his official capacity.
Mackey’s “topic of conversation” approach to state action commits an error that the
Supreme Court highlighted in Lindke. Mackey puts the “focus on appearance” by asking
whether Rising purported to talk about something government related. 601 U.S. at 199. Yet, as
Lindke explained in the social-media context, “[t]he appearance and function of the social-media
activity are relevant at the second step, but they cannot make up for a lack of state authority at
the first.” Id. at 198. Here, too, Rising skips over the first crucial question: Was Rising
“possessed of state authority”? Id. at 199 (quoting Griffin, 378 U.S. at 135). Mackey does not
even attempt to identify some “statute, ordinance, regulation, custom, or usage” that gave Rising
the authority to be the official voice of Adrian during phone calls with residents. Id. at 200(quoting 42 U.S.C. § 1983). He merely assumes that Adrian gave Rising the power to speak to
residents on the City’s behalf based on Rising’s testimony that he spoke about government topics
over the phone. Yet Rising cannot “conjure the power of the State through his own efforts”;
Mackey must point to a source delegating this power to him. Id. at 199.
No. 22-2165 Mackey v. Rising, et al. Page 15
Besides, even if we accept Mackey’s claim that the City gave Rising “some authority” to
speak to residents (say, about the status of pending legislation), Mackey must show that the
speech he challenges fell within Rising’s “bailiwick” as a Commissioner. Id. That is, for state
action to exist, the state—or here, a state actor—must bear responsibility for “the specific
conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)
(emphasis added). For two reasons, Mackey falls short here too. First, he suggests that we
should consider what motivated Rising to make the call: Mackey’s Facebook post. Yet Mackey
wrote this post as part of his own political campaign for a Commission seat to influence the
election. Mackey does not even try to explain why Rising’s response to this political activity
concerns official legislative business. Second, it is Rising’s speech that counts for the state-
action test, not Mackey’s. We, for example, refused to treat an official’s threat to bring a
defamation suit as state action even when the official alleged that citizens had made false claims
about his government service. See Meadows, 627 F. App’x at 497–98, 501; see also Viola v.
Yost, 2023 WL 6222366, at *2 (6th Cir. June 12, 2023); Gritchen, 254 F.3d at 812–14. Because
the defamation suit did not fall within the official’s duties, it did not matter whether the topic of
the suit did so. The same logic applies here: Whether or not Mackey’s political Facebook posts
motivated Rising’s call, Rising’s alleged threat of violence in response did not fall within his
“bailiwick” as a Commissioner. Lindke, 601 U.S. at 199.
Mackey fares no better with his reliance on our cases about police officers. Those
officers can act in their official capacities even when they use physical coercion (or the threat of
coercion) while off the clock. See Kalvitz, 763 F. App’x at 495–96; Barkovic, 505 F. App’x at
500; McGuire, 295 F. App’x at 738–39; Layne, 627 F.2d at 13. Yet States normally give these
officers the power to use force for the States in the exercise of their law-enforcement tasks. So
these cases typically turn on the second element of the state-action inquiry: Did an officer
“purport to use” the delegated “authority” when engaging in the challenged force? Lindke, 601
U.S. at 201; see Dean, 354 F.3d at 553. On the one hand, we have held that police officers
purported to use that authority when they, for example, allegedly “announced themselves as
officers” and placed the plaintiff “under arrest.” Kalvitz, 763 F. App’x at 496. On the other
hand, we have held that a police officer did not purport to use this authority when, for example,
he broke up a late-night fight at a Waffle House without identifying himself. Neuens v. City of
No. 22-2165 Mackey v. Rising, et al. Page 16
Columbus, 303 F.3d 667, 669–71 (6th Cir. 2002); see also Newell v. Huepenbecker, 814
F. App’x 114, 116–17 (6th Cir. 2020); Morris v. City of Detroit, 789 F. App’x 516, 518 (6th Cir.
2019).
This debate is beside the point here. We need not consider the second element of the
state-action test to reject Mackey’s claim because he cannot get past its first element. Whether
or not Rising purported to act in his official capacity, Adrian did not give him any authority to
use (or threaten) physical force on its behalf. Lindke, 601 U.S. at 198; Dean, 354 F.3d at 553.
So the City “cannot ‘fairly be blamed’” for Rising’s alleged threat to harm Mackey. Lindke, 601
U.S. at 199 (quoting Lugar, 457 U.S. at 936).
Lastly, Mackey alleges that he at least created a factual dispute over whether Rising made
the threat in his official capacity. Admittedly, we often send cases to a jury when the question
whether a defendant engaged in state action turns on a dispute about the historical facts (such as
a dispute about what a police officer said). See Layne, 627 F.2d at 13; see also Kalvitz, 763
F. App’x at 496; Barkovic, 505 F. App’x at 500. At the same time, the ultimate (or mixed)
question whether those historical facts rise to the level of “state action” within the meaning of the
Constitution and § 1983 qualifies as a “legal issue” for the court. Neuens, 303 F.3d at 670; see
Yassin v. Weyker, 39 F.4th 1086, 1089 n.2 (8th Cir. 2022) (citing cases); cf. U.S. Bank Nat’l
Ass’n v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396 n.4 (2018). And here, even after we resolve
all disputes about the historical facts in Mackey’s favor, we still must reach the “legal”
conclusion that Rising’s alleged threat of force was not state action. Neuens, 303 F.3d at 670.
B. Can Rising raise his state-action defense?
Even if Rising could have relied on the state-action defense at the outset, Mackey next
claims that Rising’s conduct during the litigation bars him from relying on the defense now.
Mackey notes that the Michigan Constitution allows cities to collect and spend taxpayer dollars
exclusively for public (not private) purposes. See Mich. Const. art. 7, §§ 21, 26. He adds that
Michigan law allows a city to pay for the defense of an official only if a suit involves the
official’s “conduct in the course of employment with” the city or “actions taken on behalf of the”
city. Mich. Comp. Laws § 691.1408(3). Given these provisions, Mackey argues that the
No. 22-2165 Mackey v. Rising, et al. Page 17
Liability Pool (and Adrian) could pay for Rising’s defense only if he called Mackey’s mother as
a City Commissioner. So Mackey believes that Rising’s decision to accept the Liability Pool’s
help prohibits him from later claiming that he called Mackey’s mother in his personal capacity.
To support this theory, Mackey invokes two equitable doctrines: waiver and judicial estoppel.
But neither applies.
1. Did Rising “waive” his state-action defense?
Mackey first argues that Rising waived any right to assert a state-action defense by
accepting the Liability Pool’s funds. Under the well-known doctrine of “waiver” (in contrast to
“forfeiture”), a party cannot assert a right in a suit if the party has intentionally relinquished the
right. See Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022) (citing United States v. Olano,
507 U.S. 725, 733 (1993)); Bannister v. Knox Cnty. Bd. of Ed., 49 F.4th 1000, 1011–12 (6th Cir.
2022).
This type of relinquishment can occur in different ways. Often, parties “explicitly” waive
their rights through their statements. Robertson v. U.S. Bank, N.A., 831 F.3d 757, 761 (6th Cir.
2016). We have held, for example, that a party waived an argument by disavowing it in an
appellate brief. See Bannister, 49 F.4th at 1011. For some legal rights (especially in the criminal
context), the law mandates this type of express waiver. See Carson v. United States, 88 F.4th
633, 645–46 (6th Cir. 2023). So criminal defendants cannot give up the right to a jury trial
unless they (not their lawyers) personally effect this waiver. See New York v. Hill, 528 U.S. 110,
114 (2000).
Other times, though, parties can “constructively” waive their rights through their conduct.
Robertson, 831 F.3d at 761. This type of waiver generally requires a party to take actions
inconsistent with the right. See Carson, 88 F.4th at 646. We have held, for example, that a party
waived the right to challenge an arbitration agreement’s validity by demanding that the other side
arbitrate a dispute under the agreement. See PolyOne Corp. v. Westlake Vinyls, Inc., 937 F.3d
692, 697–701 (6th Cir. 2019); see also Schwebke v. United Wholesale Mortg., LLC, 96 F.4th
971, 975–77 (6th Cir. 2024). And we have suggested that a party may waive the right to remove
a suit from state court to federal court by “filing a cross-claim or permissive counterclaim” in the
No. 22-2165 Mackey v. Rising, et al. Page 18
state-court proceedings. Robertson, 831 F.3d at 761; cf. Lapides v. Bd. of Regents of Univ. Sys.
of Ga., 535 U.S. 613, 618–24 (2002). Because Rising does not dispute that our law would
likewise permit this type of constructive waiver in this state-action context, we can assume the
point.
Still, Mackey has failed to show that Rising either explicitly or constructively waived his
state-action defense. For starters, Mackey makes no claim that Rising expressly said anything
suggesting that he abandoned this defense. Rather, Rising raised the defense at every stage. In
his answer, Rising denied the complaint’s allegations that he had acted “under color of state
law.” Compl., R.1, PageID 3; see Answ., R.5, PageID 17. When responding to Mackey’s
motion to enjoin the use of public funds for his defense, Rising again reiterated his view that he
“was not acting under color of state law when he called [Mackey’s] mother.” Resp., R.25,
PageID 661. And, of course, he successfully moved for summary judgment on this precise state-
action ground.
Next, Rising did not constructively abandon his state-action argument by engaging in
conduct that conflicted with his assertion of the argument. To be sure, Rising convinced the
Liability Pool to pay for his defense. The Liability Pool also had a duty to help Rising only if the
“litigation” concerned his “conduct in the course of employment with” the City. Mich. Comp.
Laws § 691.1408(3). But Rising has consistently maintained that the Liability Pool’s duty to
assist him under Michigan law depended on the factual allegations in Mackey’s complaint—not
the real-world facts that Rising sought to prove in discovery. And Mackey cannot dispute that
his complaint’s allegations triggered the Liability Pool’s duty to defend Rising: It expressly
pleaded that Rising had called Mackey’s mother in his official capacity. Indeed, if Mackey had
argued the contrary (that his complaint did not plausibly plead these facts), he would have all but
admitted that the court should dismiss his § 1983 claim for failing to satisfy its state-action
element.
Background principles of Michigan insurance law support Rising’s view that he could
both ask the Liability Pool to defend him and assert that he did not call Mackey’s mother in his
official capacity. An insurer must defend an insured in Michigan whenever the complaint’s
allegations (if accepted) “arguably” fall within an insurance policy. Matouk v. Mich. Mun.
No. 22-2165 Mackey v. Rising, et al. Page 19
League Liab. & Prop. Pool, 907 N.W.2d 853, 858 (Mich. Ct. App. 2017) (citation omitted);
Radenbaugh v. Farm Bureau Gen. Ins. Co. of Mich., 610 N.W.2d 272, 275 (Mich. Ct. App.
2000); Royce v. Citizens Ins., 557 N.W.2d 144, 146–47 (Mich. Ct. App. 1996). This duty to
defend exists even if evidence later shows that the complaint made “groundless” allegations.
Matouk, 907 N.W.2d at 858 (citation omitted). So an insured does not confess to a complaint’s
allegations of misconduct simply by arguing that those allegations trigger an insurer’s duty to
defend. And Rising’s acceptance of the Liability Pool’s funds (which depended on the alleged
facts) did not conflict with his state-action defense (which depended on the actual facts). He thus
did not engage in any inconsistent conduct that could have “constructively” waived this defense.
Robertson, 831 F.3d at 761.
Mackey’s responses do not change things. He first argues that Michigan’s general
insurance-law principles cannot apply in this public-employee context because of the laws
barring cities from paying for their employees’ defense in suits against them in their private
capacities. We have found no cases that support his reading of Michigan law. Yet we need not
enter this state-law debate. For waiver purposes, it is enough that Rising has always maintained
the same position: that he did not act under color of state law, but that the Liability Pool must
assist him because of the complaint’s allegations that he did. Perhaps Rising misreads state law.
Perhaps not. But that (alleged) error would not show that he intentionally relinquished his state-
action defense. See Morgan, 596 U.S. at 417. So it would not establish waiver.
Mackey next argues that he at least created a genuine issue of material fact over a
question about Rising’s state of mind: Did Rising knowingly decide to abandon his state-action
defense by accepting the Liability Pool’s funds? Mackey thus suggests that a jury must resolve
this waiver question. But the case he cites involved a state-law waiver issue. See Chrysler
Credit Corp. v. H & H Chrysler-Plymouth-Dodge, Inc., 927 F.2d 270, 274 (6th Cir. 1991). It is
not obvious that the same principles should apply to Mackey’s federal-law waiver claim. A jury,
for example, does not decide whether a party has “waived” the right to move for judgment as a
matter of law under Federal Rule of Civil Procedure 50 by failing to seek that relief before the
case goes to the jury. See Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 426 (6th Cir.
2004). In that context, moreover, we have held that waiver presents a mixed question of law and
No. 22-2165 Mackey v. Rising, et al. Page 20
fact and that we review de novo a district court’s ultimate waiver conclusion. See id.; see also
Schwebke, 96 F.4th at 973–74. In all events, the standard of review does not matter here. Even
if we treat waiver as a pure question of fact, Rising’s acceptance of the Liability Pool’s
assistance would not permit any reasonable factfinder to conclude that he knowingly abandoned
his state-action defense.
2. Does judicial estoppel bar Rising’s state-action defense?
Mackey alternatively argues that the district court should have judicially estopped Rising
from raising his state-action defense. The equitable doctrine that goes by “judicial estoppel”
prohibits a litigant from convincing a court to adopt one position at one time and then seeking
the opposite position at a later time. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
We typically apply judicial estoppel when a party takes conflicting positions across different
cases. See Mirando v. U.S. Dep’t of Treasury, 766 F.3d 540, 545–48 (6th Cir. 2014). But the
Supreme Court has suggested that it can apply at different “phase[s]” of a single case. Pegram v.
Herdrich, 530 U.S. 211, 227 n.8 (2000). We can assume the point. Mackey invokes this use of
estoppel, claiming that Rising has taken inconsistent positions in this case. At an early stage,
Rising successfully rebuffed Mackey’s request that the court enjoin Rising from using the
Liability Pool’s funds on the ground that Michigan law reserved those funds for city employees
acting in their official capacity. At the summary-judgment stage, though, Rising asserted that he
did not call Mackey’s mother in his official capacity.
Although three factors guide our judicial-estoppel inquiry, we need not go past the first
one here. The first factor requires Mackey to show that Rising’s summary-judgment position
“clearly” contradicted his earlier position. New Hampshire, 532 U.S. at 750 (citation omitted).
Because we apply judicial estoppel cautiously, we must reject the doctrine as long as Rising has
arguably reconciled his two allegedly inconsistent positions. See Lorillard Tobacco Co. v.
Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757–58 (6th Cir. 2008); see also Griffith v. Wal-
Mart Stores, Inc., 135 F.3d 376, 382 (6th Cir. 1998). And he has easily reconciled those
positions for the reasons we have explained. Rising successfully defended against Mackey’s
motion to enjoin him from using public funds because Mackey’s own allegations suggested that
he had acted as a City Commissioner. He later successfully obtained summary judgment
No. 22-2165 Mackey v. Rising, et al. Page 21
because the undisputed evidence showed that he had acted in his personal capacity. The first
position depended on allegations; the second on proof. Rising’s positions thus lacked any
“inconsistency,” let alone a “clear inconsistency.” Lorillard, 546 F.3d at 758; cf. Butler v.
United Healthcare of Tenn., Inc., 764 F.3d 563, 570 (6th Cir. 2014).
Mackey counters with another state-law argument. When finding no inconsistency
between Rising’s two positions, he says, the district court misread the Michigan appellate court’s
decision in Matouk. Matouk held that the Liability Pool’s duty to defend a city employee in a
§ 1983 case did not arise merely because the complaint contained one conclusory allegation that
the employee had acted in his official capacity. 907 N.W.2d at 863–64. The court reasoned that
the duty to defend does not depend on the “labels” that the plaintiff uses in a complaint. Id. at
863 (citation omitted). According to Mackey, this analysis means that the court must determine
the actual facts when deciding whether an insurer has a duty to defend. Again though, we fail to
see how this state-law argument supports Mackey’s judicial-estoppel claim. Even if Rising
misread Matouk, that (alleged) error would not show that he took inconsistent positions. And
regardless, it is Mackey who misreads Matouk. The case held only that a court must look to the
“complaint as a whole” when deciding whether an insurer has a duty to defend. Id. (citation
omitted). But it still looked only to the complaint’s “allegations”—not to actual facts outside the
complaint. Id.
We affirm.