Chris Hartman v. Jeremy Thompson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHRIS HARTMAN; SONJA DEVRIES; CARLA WALLACE, ┐
Plaintiffs-Appellants, │
│
│
v. > No. 18-5220
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JEREMY THOMPSON; JASON DRANE; BRIAN HILL, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:16-cv-00114—Gregory N. Stivers, Chief District Judge.
Argued: October 4, 2018
Decided and Filed: July 23, 2019
Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael L. Goodwin, Louisville, Kentucky, for Appellants. Charles C. Haselwood,
II, KENTUCKY STATE POLICE, Frankfort, Kentucky, for Appellees. ON BRIEF: Michael
L. Goodwin, Louisville, Kentucky, for Appellants. Charles C. Haselwood, II, KENTUCKY
STATE POLICE, Frankfort, Kentucky, for Appellees.
SUHRHEINRICH, J., delivered the opinion of the court in which BUSH, J., joined in
part and in the judgment. BUSH, J. (pp. 18–19), delivered a separate opinion concurring in part
and in the judgment. MOORE, J. (pp. 20–36), delivered a separate dissenting opinion.
No. 18-5220 Hartman et al. v. Thompson et al. Page 2
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OPINION
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SUHRHEINRICH, Circuit Judge. Chris Hartman, Sonja DeVries, and Carla Wallace
(collectively, “Plaintiffs”) are members of an organization called The Fairness Campaign. In
2015, they protested the annual Ham Breakfast at the Kentucky State Fair because it was
sponsored by the Kentucky Farm Bureau Federation (“KFB”). Plaintiffs were allowed to protest
in a designated zone. Eventually, Plaintiffs were arrested for causing a disruption, and they sued
Kentucky State Troopers Jeremy Thompson, Jason Drane, and Brian Hill (collectively,
“Defendants”) for a variety of constitutional and state law claims. The district court granted
summary judgment to Defendants. We AFFIRM.
I. BACKGROUND
On August 27, 2015, the KFB sponsored the 52nd annual Ham Breakfast at the Kentucky
State Fair. To gain admission to the Ham Breakfast, attendees had to buy two tickets—one to
get into the Fairgrounds and a separate ticket for the Breakfast.
On August 26, 2015, the day before the Ham Breakfast, The Fairness Campaign, the
American Civil Liberties Union of Kentucky, and the Jefferson County Teachers Association
(referred to here as “The Fairness Campaign”) e-mailed a joint press release. The press release
stated that The Fairness Campaign “will protest the [KFB]’s discriminatory policies at the annual
State Fair Country Ham Breakfast Thursday, August 27, 7:00 a.m. in South Wing B of the
Kentucky Exposition Center.” The Fairness Campaign described KFB’s discriminatory policies
as “anti-LGBT, anti-teacher, anti-union, anti-choice, and pro-death penalty, among others.”
Later that evening, Thompson—who oversaw general law enforcement at the
Fairgrounds—received a phone call from Fairgrounds CEO Rip Rippetoe asking him to come in
for a meeting regarding The Fairness Campaign’s press release. Thompson, Rippetoe, Dr. Mark
Lynn from the Fairgrounds’ Board of Directors, Chris Brawner from Fairgrounds’ security, and
Ellen Benzing from the Fairgrounds’ legal staff met “to determine how that protest was going to
be handled.” Kentucky Administrative Regulations (“KAR”) regarding demonstrations at the
No. 18-5220 Hartman et al. v. Thompson et al. Page 3
Fairgrounds require 72 hours’ notice to the Executive Director of the Fairgrounds. See 303 KAR
1:080(2). After the notice is received, the protestors “have to receive a permit from the
[F]airgrounds with the specifics of . . . where, [and] the number of people they’re going to have
so that the[ protestors] can be accommodated.” According to Thompson, “[t]hat was [the
Fairgrounds’] decision whether they would or would not allow” The Fairness Campaign to
protest. Even though The Fairness Campaign did not abide by 303 KAR 1:080(2) and instead
only sent out a press release, the Fairgrounds group made a “collective decision” that they would
“allow the protest even though sufficient notice had not been given according to KAR regarding
protests on [F]airgrounds property.” The group decided “to allow the protest to make it relevant
to the venue but to keep it in an area that did not disrupt any services that were going on.” After
the meeting, Thompson led the group out to the parking lot, approximately 50 feet from the
sidewalk outside South Wing B, where he suggested an area for the protest. The suggestion was
based on handicap-accessible parking because Thompson remembered from previous dealings
with The Fairness Campaign, when they had protested the event in prior years, that “there were a
few members that were with the group that were handicapped, or if not handicapped they used
assistance with canes, wheelchairs and so on.” The group agreed with Thompson’s
recommendations and flagged off the area (the “protest zone”) for The Fairness Campaign to use
the following morning.
The next morning, twenty-four members of The Fairness Campaign, including the three
Plaintiffs, arrived wearing bright orange T-shirts which “enumerated the [KFB]’s discriminatory
policies.” Thompson met Hartman in the parking lot and told Hartman that The Fairness
Campaign would be permitted to protest in the protest zone. Thompson told Hartman that inside
the protest zone The Fairness Campaign could use signs, megaphones, “the whole nine yards.”
The Fairness Campaign then went to the protest zone.
Thompson also warned The Fairness Campaign that they could not disrupt the Ham
Breakfast when they went inside. Hartman retorted, “I’m going to do what I have to do,” which
included the decision to “ramp up activities until the [KFB]’s policies were amended.”
Thompson recalled that in 2014, twenty-four members of The Fairness Campaign attended the
Ham Breakfast wearing bright yellow T-shirts. As other guests went through the buffet line, The
No. 18-5220 Hartman et al. v. Thompson et al. Page 4
Fairness Campaign stood nearby in a single-file line, alternately facing forward and backward,
for 15 to 20 minutes. The Fairness Campaign then got their breakfast and waited until the
conclusion of the invocation. When KFB President Mark Haney began introducing dignitaries
from the dais, The Fairness Campaign moved in front of the dais and again stood, alternately
facing forward and backward, in a single file line for 60 seconds. The Fairness Campaign was
not arrested for this behavior.
According to Hartman, Thompson’s warning in 2015 not to protest inside the Ham
Breakfast caused The Fairness Campaign to rethink its plan. Instead of standing in front of the
speaker’s dais, The Fairness Campaign decided they would stand silently at their assigned table
for 60 seconds. Hartman did not tell Thompson or anyone else from the Kentucky State Police
about this change in plan.
Upon leaving the protest zone, Plaintiffs presented their tickets and entered the Ham
Breakfast without restriction. The Fairness Campaign was seated together at three tables located
in the corner farthest from the front of the speakers’ dais. After the opening invocation and as
the first speaker began to address the attendees, The Fairness Campaign simultaneously rose
from their seats and stood at their three tables silently. This action led to their arrest, although
the parties dispute what happened next.
Plaintiffs maintain that immediately after they stood up, police officers approached them,
placed Hartman under arrest, and escorted him from the building. Plaintiffs contend none of the
officers asked Hartman or other Fairness Campaign members to sit down or leave before
arresting him. Thompson, however, testified he approached Hartman and asked him to sit down,
but Hartman refused to answer and did not sit down. Drane testified after Hartman was placed
into handcuffs, he picked his feet up and had to be “pack[ed] out” of the venue by the troopers.
For his part, Hartman stated that after being handcuffed, he “decided, in protest, to dead drop” in
response to Defendants’ having “jerked [him] forward” when he hesitated to accompany them.
Drane subsequently arrested Hartman for failure to disperse and disorderly conduct in the second
degree.
No. 18-5220 Hartman et al. v. Thompson et al. Page 5
After Hartman was arrested and escorted from the Ham Breakfast, Thompson returned to
the venue to find other individuals still standing at the table. Thompson testified he told them
they had to leave and that all but two women left the Breakfast. Thompson said that although he
asked one of the women to leave, she repeatedly stated she was not leaving.
DeVries testified that following Hartman’s arrest, Hill approached her and told her she
had to leave. DeVries explained to Hill that she was getting ready to leave and was waiting for
her friends. DeVries stated that Hill then placed her under arrest and escorted her from the
event. Hill, however, claimed that DeVries had already been handcuffed when Thompson asked
Hill to escort her out of the Breakfast and that Thompson instructed Hill to charge DeVries with
failure to disperse.
Wallace asserted that after Hartman was removed from the Breakfast, troopers
approached her and told her she had to leave. Before she was given a chance to respond,
Wallace contended that she was removed from the venue and placed under arrest. Thompson
arrested Wallace for failure to disperse.
The day before their trials in state court were set to begin, the Jefferson County Attorney
moved to dismiss all charges against Plaintiffs. Three judges granted the motions and dismissed
the charges.
After the charges were dismissed, Plaintiffs filed a complaint in Jefferson County Circuit
Court, asserting four constitutional violations under 42 U.S.C. § 1983: false arrest and malicious
prosecution in violation of the Fourth Amendment, and free speech and retaliatory arrest claims
in violation of the First Amendment. Plaintiffs also claimed wrongful arrest, malicious
prosecution, and battery under Kentucky law. Defendants removed the case to federal court and
moved for summary judgment. The district court granted summary judgment to Defendants on
all claims, both on the merits and on qualified immunity grounds.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo and view all facts in
the light most favorable to Plaintiffs, the non-moving parties. Brumley v. United Parcel Serv.,
No. 18-5220 Hartman et al. v. Thompson et al. Page 6
Inc., 909 F.3d 834, 839 (6th Cir. 2018). A district court must grant summary judgment when
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). There is not a dispute of material fact when the plaintiff
presents only a mere “scintilla” of evidence; there must instead be “evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
III. ANALYSIS
A. Protest Zone Outside the Ham Breakfast
Plaintiffs allege Defendants violated their First Amendment free speech rights when they
were directed to the protest zone outside of the Ham Breakfast. Although Plaintiffs did not seek
a permit as required, they do not make a facial challenge to 303 KAR 1:080. Instead, they
challenge the application of the regulation to them.
Plaintiffs’ free speech claim fails because they sued the wrong parties. Nothing in the
record establishes that Drane or Hill was involved with the creation or enforcement of the protest
zone. Therefore, the district court properly granted summary judgment to them on Plaintiffs’
free speech claim.
As for Thompson, § 1983 requires that the defendant “subjects, or causes to be subjected”
a United States citizen to the deprivation of a constitutional right. 42 U.S.C. § 1983. Thompson
did not “cause” the protest zone to occur. He recommended its placement in response to a
request from the Fairgrounds’ Board. At bottom, Thompson did not have the legal authority to
make the decision to put Plaintiffs in the protest zone. That authority rested with the Executive
Director of the Kentucky State Fair. See 303 KAR 1:080(1)(p). As Thompson testified in his
deposition, “[t]hat was [the Fairgrounds’] decision whether they would or would not allow [the
protest]. That was . . . governing how the fairgrounds operates once they receive these types of
notifications from anyone.” Therefore, Thompson did not “subject” or “cause to be subjected”
Plaintiffs to the protest zone and cannot be liable on the free speech claim.
No. 18-5220 Hartman et al. v. Thompson et al. Page 7
Yet, even if we assume the decision had been Thompson’s, there was no constitutional
violation. A First Amendment claim depends on three inquiries: (1) whether speech is protected;
(2) “the nature of the forum” in which the speech occurs; and (3) whether the government’s
restriction on speech satisfies the relevant forum’s associated constitutional standard. Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); S.H.A.R.K. v. Metro Parks
Serving Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007). Thompson concedes that the conduct at
issue is protected speech, so we focus only on the latter two concerns.
1. Type of Forum
There are four types of speech fora: nonpublic, public, designated public, and limited
public. Pleasant Grove City v. Summum, 555 U.S. 460, 469–70 (2009); Miller v. City of
Cincinnati, 622 F.3d 524, 534–35 (6th Cir. 2010). Plaintiffs assert their speech took place on the
sidewalks outside of the Fairgrounds entirely. According to Plaintiffs, that means their speech
took place in a traditional public forum and any restrictions are subject to strict scrutiny.
However, Plaintiffs do not identify any evidence in the record to support this position.
Defendants counter that the protest zone was inside the Fairgrounds in a parking lot, so it
was in a limited public forum. Defendants are right. The public cannot access the Fairgrounds
unless they pay admission. See 303 KAR 1:050. The protest zone was inside the Fairgrounds,
approximately 50 feet from the sidewalk outside South Wing B. Therefore, the district court
correctly identified the protest zone as inside of a limited public forum. See Heffron v. Int'l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (“The Minnesota State Fair is a
limited public forum in that it exists to provide a means for a great number of exhibitors
temporarily to present their products or views, be they commercial, religious, or political, to a
large number of people in an efficient fashion.”); cf. Parks v. City of Columbus, 395 F.3d 643,
652 (6th Cir. 2005) (holding that arts festival open to the public at no charge on streets of
downtown Columbus was traditional public forum).
2. Level of Scrutiny
In a limited public forum, the government “is not required to and does not allow persons
to engage in every type of speech.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106
No. 18-5220 Hartman et al. v. Thompson et al. Page 8
(2001). The government may restrict speech so long as the restrictions are viewpoint neutral and
“reasonable in light of the purpose served by the forum.” Miller, 622 F.3d at 535 (quoting Good
News Club, 533 U.S. at 106–07) (internal quotation marks omitted). Viewpoint discrimination is
a more “egregious” form of content discrimination. Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 829 (1995). It occurs when speech is restricted because of the speaker’s
viewpoint on the topic—i.e., but for the perspective of the speaker, the speech would normally
be permissible. See, e.g., Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384(1993) (holding school violated free speech clause by denying church access to school premises
to show film solely because film had a religious viewpoint).
a. Viewpoint neutrality
Plaintiffs contend that they were moved to the protest zone because they were protesting
the alleged discriminatory policies of the KFB. In their view, Thompson targeted them because
of their viewpoint, while Defendants allowed others engaged in political speech to roam freely
with signs bearing political messages. These arguments fail for three reasons.
First, the Fairgrounds had a legitimate, viewpoint-neutral reason for designating a protest
zone for a large group of people. The Fairgrounds regulations allow demonstrations unless a
demonstration unreasonably and substantially interferes with (1) patron safety; (2) “[t]he orderly
movement of vehicle and pedestrian traffic”; or (3) the “normal functions” of the Fairgrounds.
303 KAR 1:080(2)(b)(1)–(3). Thompson suggested that the protest zone be located away from
the sidewalk in front of South Wing B because 2,000 people needed to enter for the Ham
Breakfast. As Thompson explained, the goal is to prevent large groups from “interfer[ing] with
folks walking in” because “we can’t afford to [allow pedestrians to] back up into traffic” and
affect ingress and egress. Nothing in that explanation is troubling. See, e.g., Heffron, 452 U.S.
at 654 (recognizing that “managing the flow of the crowd” is an “important concern” and
holding “that the State’s interest in confining distribution, selling, and fund solicitation activities
to fixed locations [within the Minnesota State Fair] is sufficient to satisfy the requirement that a
place or manner restriction must serve a substantial state interest”).
No. 18-5220 Hartman et al. v. Thompson et al. Page 9
Second, nothing in the record supports Plaintiffs’ contention that they were moved
because of their viewpoint. Thompson testified that the protest area “was not reserved for [T]he
Fairness Campaign, [it] was reserved for anyone who designated themselves a protestor.”
Thompson continued:
If you sent an email, a protest notification, regardless of whom it was for or
against, from a Kentucky State Police perspective you would have been treated as
a protestor and been placed in a protest area. . . . The cause and name is absolutely
irrelevant. . . . If you send an email that you’re a protestor, you will be treated as
such.
(Emphasis added). In short, every self-identified protestor would have been placed in a protest
zone. This meets the Supreme Court’s instruction that a government’s action is viewpoint
neutral when it treats everyone the same. E.g., Christian Legal Soc’y Chapter of the Univ. of
Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 694 (2010) (“It is, after all, hard to
imagine a more viewpoint-neutral policy than one requiring all student groups to
accept all comers.”).
Third, Plaintiffs have not identified other protestors that remained on the sidewalk; rather,
they vaguely assert that others were protesting in the area without providing any detail as to the
actions of these individuals that were allegedly protesting. The only evidence in the record
regarding other people on the sidewalk comes from Thompson, who testified multiple times that
he did not remember any specific signs on the sidewalk. Even taking these facts in the light most
favorable to Plaintiffs, we cannot say that other protestors of a different viewpoint were allowed
on the sidewalk while Plaintiffs were not.1 See Williamson v. Aetna Life Ins. Co., 481 F.3d 369,
378–79 (6th Cir. 2007) (holding that the party opposing summary judgment is required to point
to evidence in the record that creates an issue of fact).
In sum, Defendants had a viewpoint-neutral rationale for the protest zone.
1Plaintiffsdo not challenge the Fairgrounds regulations on their face, claiming that any and all restrictions
on speech in the Fairgrounds violate the Constitution. Instead, Plaintiffs raise only an as-applied challenge, which
requires them to show that the regulation was unconstitutional in application to them. However, as stated above,
they provide no evidence proving that other large groups were allowed to remain on the sidewalk to protest.
No. 18-5220 Hartman et al. v. Thompson et al. Page 10
b. Reasonable in light of purpose served by forum
We next examine whether the protest zone was “reasonable in light of the purpose served
by the forum.” Miller, 622 F.3d at 535. Plaintiffs assert that even if the protest zone was
viewpoint neutral, the requirement that protestors indicate their intent to protest before being
placed in the protest zone was arbitrary and unreasonable. According to Plaintiffs, the
distinction between those registering to protest and those who simply show up and do so
arbitrarily favors those who do not register.
The district court did not conduct this analysis. Instead, it said simply, “[i]t appears that
Thompson’s testimony is the only evidence in the record that bears on the issue of viewpoint
neutrality.” We see no error in this conclusion. Plaintiffs, who bear the burden of proof, make
only the cursory statement that “[a]ny such distinction, based on who issues a press release, and
who does not, is not reasonably related to any legitimate government interest.” Again, they cite
no legal authority for this proposition, and it is not our job to construct a legal argument for
them. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997).
Regardless, Thompson’s actions were reasonable. Consider the facts here. The
Fairgrounds identifies certain fixed locations around the Kentucky State Fair for large
demonstrations. 303 KAR 1:080(1). The person or group seeking to demonstrate must apply at
least 72 hours in advance. 303 KAR 1:080(2). However, if there is a function at a location “with
respect to which no areas for . . . demonstrations have been above designated,” one may be
temporarily assigned. 303 KAR 1:080(1)(p). Plaintiffs did not submit a timely application, yet
the Fairgrounds Board still took steps to accommodate them, and Thompson recommended a
protest zone 50 feet from the entrance to South Wing B. In the protest zone, Plaintiffs could
speak. They could hold signs. They could have megaphones. They could convey their message
to anyone and everyone entering the Ham Breakfast. The only thing they had to do was walk
50 feet across the street—to an area that was equipped with handicapped restrooms for one of
their members in a wheelchair, no less—to complain about the Kentucky Farm Bureau. This
reasonable accommodation did not violate the First Amendment.
No. 18-5220 Hartman et al. v. Thompson et al. Page 11
B. Events Inside South Wing B at the Ham Breakfast
We turn next to the events inside South Wing B at the Ham Breakfast. This is a private
forum, so the rules of engagement between law enforcement and the public are different.
Plaintiffs were arrested after they stood up, in unison, at the start of the program. Because
Plaintiffs’ remaining claims, including false arrest, First Amendment retaliation, malicious
prosecution, retaliatory arrest, and battery, depend on whether Defendants had probable cause to
arrest them at that moment, we turn to probable cause first.
Probable Cause. An officer has probable cause to arrest an individual if “the facts and
circumstances within the officers’ knowledge [are] sufficient to warrant a man of reasonable
caution to believe that an offense had been, was being, or was about to be committed.” Fox v.
Desoto, 489 F.3d 227, 236 (6th. Cir. 2007) (citing Brinegar v. United States, 338 U.S. 160, 175–
76 (1949)). To determine whether probable cause exists, we consider only “the facts known to
the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
The offense establishing probable cause need not be “closely related to, and based on the same
conduct as, the offense identified by the arresting officer at the time of arrest.” 2 Id. at 153(internal quotations omitted). Nor does an officer’s subjective motivation invalidate an
otherwise lawful arrest based on probable cause. Arkansas v. Sullivan, 532 U.S. 769, 771–72
(2001).
Plaintiffs were arrested for failure to disperse pursuant to Ky. Rev. Stat. § 525.160.3
Hartman was also arrested for disorderly conduct in the second degree pursuant to Ky. Rev. Stat.
2The district court predicted that the Kentucky Supreme Court would adopt this holding from Devenpeck.
See also Warren v. Lexington-Fayette Urban Cty. Gov’t Police Dep’t, No. 5:16-140-DCR, 2017 WL 2888716, at *6
(E.D. Ky. July 6, 2017), appeal dismissed, No. 17-5898, 2017 WL 5461670 (6th Cir. Oct. 2, 2017) (“It is therefore
reasonable to predict that the Supreme Court of Kentucky would also conclude that an officer has probable cause to
arrest as long as he has probable cause [to] arrest for any offense, consistent with Devenpeck.”). The district court
determined that this holding would apply to the state law torts of false arrest and malicious prosecution. Plaintiffs
have forfeited any challenge to this conclusion by failing to make any argument about it in their brief. Island Creek
Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018). Consequently, we will also assume that the Kentucky
Supreme Court would apply Devenpeck to the state law torts.
3A person is guilty of failure to disperse “if he participates with two (2) or more persons in a course of
disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, and intentionally
refuses to disperse when ordered to do so by a peace officer or other public servant engaged in executing or
enforcing the law.” Ky. Rev. Stat. § 525.160.
No. 18-5220 Hartman et al. v. Thompson et al. Page 12
§ 525.060.4 The district court ruled that Defendants had probable cause to arrest DeVries for
failure to disperse because she disobeyed an order to leave. We see no error in the district
court’s conclusion that Defendants had probable cause to believe DeVries had failed or would
fail to disperse. The undisputed evidence is that DeVries failed to comply immediately with
Defendants’ order. Therefore, a reasonable officer would have probable cause to believe she
failed to disperse. However, there is a dispute of facts regarding Hartman and Wallace—they
contend they were never given a warning to disperse, and Defendants disagree. The district
court sidestepped the factual dispute and instead found that the officers had probable cause to
arrest all three Plaintiffs under Ky. Rev. Stat. § 525.150 for disrupting a lawful meeting. We
agree with the district court’s conclusion.
An individual is guilty of disrupting a meeting or procession in the second degree if,
“with intent to prevent or disrupt a lawful meeting, procession, or gathering, [1] he or she does
any act tending to obstruct or interfere with it physically or [2] makes any utterance, gesture, or
display designed to outrage the sensibilities of the group.” Ky. Rev. Stat. § 525.150. As the
statute’s commentary explains, “[i]f the intent to disrupt the meeting is present, the conduct in
question need not constitute disorderly conduct per se.” Ky. Rev. Stat. § 525.150, cmt.
Plaintiffs admit that they intended to draw attention away from the speaker. See Ky. Rev.
Stat. § 525.150. Thus, their actions violated the statute two times over. First, they performed an
act “tending to obstruct or interfere” with a private event when they stood in synchronization just
as the first speaker for the speaking portion of the program was about to begin. Second, this
same act was also a “display designed to outrage the sensibilities of the group” because the
group’s “uniform”—a bright orange T-shirt—listed Plaintiffs’ grievances with KFB’s policies.
Id.
4Section 525.060 provides: “A person is guilty of disorderly conduct in the second degree when in a public
place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he:
(a) Engages in fighting or in violent, tumultuous, or threatening behavior;
(b) Makes unreasonable noise;
(c) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to
a fire, hazard, or other emergency; or
(d) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.”
No. 18-5220 Hartman et al. v. Thompson et al. Page 13
Plaintiffs assert that § 525.150 does not apply to their silent protest because they “did
nothing to prevent or disrupt the [H]am [B]reakfast.” Defendants dispute this contention.
Thompson testified that “[t]here were a variety of people that walked up to me that thanked me
because they could not see when [The Fairness Campaign] stood up.” However, even taking the
facts in the light most favorable to Plaintiffs and assuming that no one was actually obstructed,
Plaintiffs still violated the statute. The statute criminalizes “any act tending to obstruct or
interfere” with a meeting. “Tending” to do something is different from actually doing it. See,
e.g., CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/tending
(defining “tending” as “to be likely to behave in a particular way or have a particular
characteristic”); MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/tending
(defining “tend” as “to exhibit an inclination”). So long as Plaintiffs’ protest tended to draw
attention away from the speaker, their conduct was covered by the statute.
Moreover, an officer has probable cause to arrest if he has sufficient knowledge to
believe that a crime is about to be committed. Fox, 489 F.3d at 236. Thompson knew that the
previous year at the Ham Breakfast, members of The Fairness Campaign entered after the
invocation, walked in front of the speaker’s dais while KFB President, Mark Haney, was
speaking, and formed a single-file line for 60 seconds. He also knew, based on his conversation
with Hartman an hour before his arrest, that The Fairness Campaign planned to “ramp up” its
activities from the previous year. Considering these facts, Thompson had reason to believe that
The Fairness Campaign was going to do something more than forming a wall in front of the
speaker for 60 seconds. That action would certainly tend to obstruct or interfere physically with
the Ham Breakfast in violation of Ky. Rev. Stat. § 525.150.
Finally, Plaintiffs assert that standing in silent demonstration against a speaker or position
“is an age old form of political speech at public meetings.” That may be true at a public meeting.
However, Plaintiffs knew that the Ham Breakfast was a private, ticketed event. And most
importantly, Plaintiffs did not seek a total silent demonstration. They were unequivocal that their
intention was to draw attention to themselves and away from the speaker. As the commentary to
Ky. Rev. Stat. § 525.150 explains, “[t]he gist of KRS 525.150 is the intent of the actor rather
than the nature of the physical act or the content of the utterance.” Considering Plaintiffs’
No. 18-5220 Hartman et al. v. Thompson et al. Page 14
clearly expressed intent and Defendants’ knowledge of that intent, Defendants had probable
cause to make the arrests.
With probable cause established, the remaining claims fall like a house of cards.
1. Section 1983 and State False Arrest
Plaintiffs assert § 1983 and state false arrest claims. A plaintiff making a claim of false
arrest must show the officers lacked probable cause to arrest him or her. Robertson v. Lucas, 753
F.3d 606, 615 (6th. Cir. 2014). Thus, if an officer has probable cause to arrest, Plaintiffs cannot
maintain an action for false arrest. This is also true of Plaintiffs’ state law claim for false arrest.
See Dunn v. Felty, 226 S.W.3d 68, 71 (Ky. 2007). Here, Defendants had probable cause to arrest
Plaintiffs, so the district court correctly granted summary judgment to Defendants on the § 1983
and state law false arrest claims.
2. First Amendment Retaliation
Plaintiffs also claim that they were arrested in retaliation for the content of their speech.5
A claim of First Amendment retaliation requires proof that: “(1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person
of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal
connection between” the first two elements, i.e. “the adverse action was motivated at least in part
by the plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)
(en banc).
The district court ruled that probable cause defeated Plaintiffs’ claim for retaliatory
arrest, relying on Hartman v. Moore, 547 U.S. 250, 265–66 (2006) and Marcilis v. Township of
5Plaintiffs cite Cohen v. California, 403 U.S. 15 (1971), for the proposition that they may not be arrested
based on the content of their speech. Cohen does not help their cause. There, the petitioner was convicted for
wearing a jacket with the words “Fuck the Draft” plainly visible in the Los Angeles Municipal Court. Id. at 16. The
petitioner wore the jacket to make his opposition to the Vietnam War known. Id. However, he did not engage in
any conduct that would lend itself to probable cause for his arrest under California law. Id. at 16–17. The Supreme
Court concluded that “the State may not, consistently with the First and Fourteenth Amendments, make the simple
public display here involved of this single four-letter expletive a criminal offense.” Id. at 26. Here, as explained
above, Defendants had probable cause to arrest them under Ky. Rev. Stat. § 525.150, which addresses conduct.
Plaintiffs’ actions were not merely speech, as in Cohen.
No. 18-5220 Hartman et al. v. Thompson et al. Page 15
Redford, 693 F.3d 589, 604 (6th. Cir. 2012). Hartman established that a plaintiff claiming
retaliatory prosecution must plead and prove a lack of probable cause for the prosecution. 547
U.S. at 265–66. Subsequent to Hartman, this Court applied the lack of probable cause
requirement to retaliatory arrest cases. See Marcilis, 693 F.3d at 604 (applying Hartman and
holding that defendant police officers were entitled to summary judgment on retaliatory arrest
claim because officers had probable cause for the arrest). As stated above, Defendants had
probable cause to arrest Plaintiffs. Therefore, the district court correctly concluded that
Defendants were entitled to summary judgment on the First Amendment retaliation claims.
Plaintiffs do not mention Hartman or Marcilis, and we have no duty to make an argument
distinguishing these cases for them. We would be remiss, however, if we did not address the
Supreme Court’s recent decision: Nieves v. Bartlett, 139 S. Ct. 1715, 1721 (2019) held that
“probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech
protected by the First Amendment.” The Court noted that in First Amendment retaliation cases,
“it is particularly difficult to determine whether the adverse government action was caused by the
officer’s malice or the plaintiff’s potentially criminal conduct,” and thus, “[b]ecause of the ‘close
relationship’ between the two claims, their related causal challenge should lead to the same
solution: The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of
probable cause for the arrest.” Id. at 1724 (citations omitted).6
As Nieves makes clear, if there is a showing of probable cause, a retaliatory arrest claim
fails. Because we affirm the presence of probable cause, Defendants are therefore entitled to
summary judgment on the merits of the retaliatory arrest claim. See id. at 1728.
3. Section 1983 and State Malicious Prosecution
A claim for malicious prosecution under § 1983 requires: (1) that the defendant “ma[d]e,
influence[d], or participate[d] in the decision to prosecute” the plaintiff; (2) a lack of probable
6We note that the Nieves Court held “that the no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged
in the same sort of protected speech had not been.” Id. at 1727. Here Plaintiffs have not put forth any objective
evidence that similarly situated individuals at the Breakfast had been allowed to engage in similarly disruptive
activities without arrest.
No. 18-5220 Hartman et al. v. Thompson et al. Page 16
cause for the criminal prosecution; (3) the plaintiff suffered a deprivation of liberty as a
consequence of the legal proceeding; and (4) the criminal proceedings were resolved in the
plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th. Cir. 2010).
Plaintiffs do not show the first necessary element of the § 1983 malicious prosecution
claim. They assert only that their prosecution was “initiated by the citations and arrests issued
by the [D]efendants against the [P]laintiffs.” These conclusory allegations contain no evidence
that Defendants participated beyond the initial arrest. Case law in this Circuit is clear that a state
trooper is not liable for malicious prosecution by simply sending a police report to the
prosecutor’s office after an arrest. Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir.
2002); see also McKinley v. City of Mansfield, 404 F.3d 418, 444 (6th Cir. 2005) (“Skousen . . .
clearly forecloses a malicious prosecution claim based solely on officers’ turning over evidence
to the prosecuting authorities.”). Therefore, the district court properly granted summary
judgment to Defendants on the § 1983 malicious prosecution claim.
The elements of malicious prosecution are slightly different for the state law claim, which
requires a plaintiff to prove that
1) the defendant initiated, continued, or procured a criminal . . . proceeding. . .
against the plaintiff;
2) the defendant acted without probable cause;
3) the defendant acted with malice, which, in the criminal context, means seeking
to achieve a purpose other than bringing an offender to justice . . . ;
4) the proceeding . . . terminated in favor of the person against whom it was
brought; and
5) the plaintiff suffered damages as a result of the proceeding.
Martin v. O’Daniel, 507 S.W.3d 1, 11–12 (Ky. 2016), as corrected (Sept. 22, 2016), reh’g
denied (Feb. 16, 2017).
The district court ruled that Defendants failed on the state malicious prosecution claim
for two reasons: Defendants had probable cause to arrest, and they did not act with malice. We
agree with the district court’s conclusion. As stated above, Defendants had probable cause to
No. 18-5220 Hartman et al. v. Thompson et al. Page 17
arrest Plaintiffs.7 Therefore, Plaintiffs cannot prove the second element—that Defendants acted
without probable cause.
Additionally, Defendants did not act with malice. Under Kentucky law, an officer acts
with malice when he “seek[s] to achieve a purpose other than bringing an offender to justice.”
Martin, 507 S.W.3d at 11. Malice may be inferred from a lack of probable cause. Massey v.
McKinley, 690 S.W.2d 131, 133 (Ky. Ct. App. 1985) (citing Sweeney v. Howard, 442 S.W.2d
865 (Ky. 1969)). Plaintiffs assert only that we should infer malice because they were arrested
without probable cause. However, Defendants had probable cause to arrest Plaintiffs under Ky.
Rev. Stat. § 525.150, so we will not make that inference. Moreover, Thompson’s actions after
Plaintiffs left the Breakfast show no malice. He met with The Fairness Campaign members in
the parking lot and told them that they would still be allowed to protest outside. He even offered
to put the flags back up around the protest zone after they had been knocked down.
In summary, the district court properly granted summary judgment to Defendants on the
malicious prosecution claims.
4. Battery
Finally, Hartman alleges that Thompson and Drane used excessive force during his arrest.
Under Kentucky law, an “officer making an arrest may use such force as may be necessary to
make the arrest but no more.” City of Lexington v. Gray, 499 S.W.2d 72, 74 (Ky. 1973); see also
Ky. Rev. Stat. § 503.090(1). As stated above, Defendants had probable cause to arrest Hartman.
And it is undisputed that Hartman “decided, in protest, to dead drop” by picking his feet up and
forcing the Troopers to carry him out of the Ham Breakfast. When Kentucky State Troopers had
to pick up Hartman and carry him out, they used as much force as necessary. Therefore,
Hartman loses on his battery claim.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
7The language in the Kentucky version of the tort is different than the § 1983 version. In Kentucky, the
defendant need only have “acted without probable cause.” Id. at 11. This is different from the § 1983 version, in
which the lack of probable cause is tied to the criminal prosecution. Sykes, 625 F.3d at 308.
No. 18-5220 Hartman et al. v. Thompson et al. Page 18
______________________________________________________
CONCURRING IN PART AND IN THE JUDGMENT
______________________________________________________
JOHN K. BUSH, Circuit Judge, concurring in part and concurring in the judgment.
I agree with the reasoning of the majority opinion in all but one particular. I write separately to
express the limits of my rationale for finding that Defendants had probable cause to arrest
Plaintiffs.
First, it is unnecessary to address (as did the district court) whether Defendants had
probable cause to arrest Sonja DeVries for failure to disperse under Kentucky Revised Statutes
§ 525.160. See Majority Op. at 12. Instead, the arrest was permitted based on Kentucky Revised
Statutes § 525.150. The latter statute prohibits a person from, “with intent to prevent or disrupt a
lawful meeting, procession, or gathering,” either “do[ing] any act tending to obstruct or interfere
with it physically or mak[ing] any utterance, gesture, or display designed to outrage the
sensibilities of the group.” The majority opinion concludes that Defendants had probable cause
to arrest all three Plaintiffs under § 525.150, and I agree with that conclusion.
My position in this regard stems from the principle that probable cause is a determination
to be made in light of all “the facts and circumstances within the officers’ knowledge.” Fox v.
DeSoto, 489 F.3d 227, 236 (6th Cir. 2007) (citation omitted); see Beck v. Ohio, 379 U.S. 89, 91
(1964). Because we may consider everything the officers knew at the time they arrested
Plaintiffs, we need not determine whether Plaintiffs’ standing at the back of the room, wearing
brightly colored T-shirts, would alone “warrant a man of reasonable caution to believe that an
offense had been, was being, or was about to be committed.” Fox, 489 F.3d at 236 (citation
omitted); see Majority Op. at 12–14. Here, the totality of everything Defendants knew satisfies
the probable-cause standard, so we need not decide whether anything less than that totality
would do so.
Defendants knew that the previous year, Plaintiffs had stood in a line at the front of the
room, between the audience and the speaker, for sixty seconds. They knew that, like the
previous year, Plaintiffs again came in a group to the Ham Breakfast. What is more, Hartman
No. 18-5220 Hartman et al. v. Thompson et al. Page 19
had told Thompson that he would “do what [he had] to do” and planned to “ramp up [his]
activities.” R. 17-1, Hartman Dep. 32:4–6. Thus, when Defendants saw Plaintiffs stand up as a
group, they could reasonably believe—at minimum—that Plaintiffs had the “intent to prevent or
disrupt a lawful meeting, procession, or gathering” and were about to commit actions “tending to
obstruct or interfere with it physically.”1 Ky. Rev. Stat. § 525.150; see Majority Op. at 13. This
reasonable belief is all we need to affirm the district court’s holding that probable cause
supported the arrests.
Therefore, I would not reach whether Plaintiffs’ standing in the back wearing bright T-
shirts could alone support a probable-cause finding. For the same reason, I would not reach
whether Defendants had probable cause to arrest Plaintiffs under the second disjunctive element
of the statute, which proscribes “making any utterance, gesture, or display designed to outrage
the sensibilities of the group.” Ky. Rev. Stat. § 525.150.
In all other respects, I join Judge Suhrheinrich’s well reasoned majority opinion.
1The Dissent suggests that Officer Hill, who arrested DeVries, may not have known about what Hartman
told Thompson regarding a plan to “ramp up . . . activities.” See Dissent at 26–27. But Hill testified, and Plaintiffs
do not dispute, that Thompson told him in a briefing session before the Ham Breakfast that “there was a group there
that was possibly going to protest and I think last year they like stood up in front of everybody so we might be
looking at similar acts, but we weren’t sure.” R. 17-7, Hill Dep. 15:18–21 (emphasis added). Therefore, according
to undisputed testimony, Hill was in possession of enough facts to reasonably believe that Plaintiffs were about to
again stand between the audience and the speakers—or do more, because, as Hill testified, Defendants “weren’t
sure” what Plaintiffs’ plans were. A reasonable officer could believe that such conduct would tend to obstruct or
interfere with the event physically in violation of § 525.150.
No. 18-5220 Hartman et al. v. Thompson et al. Page 20
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. The majority today concludes
that although Kentucky State Police Trooper Jeremy Thompson determined where The Fairness
Campaign would protest and decided how to implement the Kentucky State Fair’s regulations,
Thompson cannot be liable under 42 U.S.C. § 1983. The majority also determines that the
officers had probable cause to arrest Plaintiffs for disrupting a meeting, thereby foreclosing
Plaintiffs’ claims for false arrest and First Amendment retaliation. For the following reasons, I
respectfully dissent.
I. PROTEST ZONE RESTRICTION
The majority first concludes, without any suggestion or argument from the Defendants,
that because “Thompson did not have the legal authority to make the decision to put Plaintiffs in
the protest zone,” but, rather, merely “recommended [the zone’s] placement in response to a
request from the Fairgrounds’ Board,” Thompson cannot be liable under 42 U.S.C. § 1983.
True, a defendant is liable under § 1983 only if he either “subjects” a plaintiff to a constitutional
violation or causes the plaintiff “to be subjected” to a constitutional violation. 42 U.S.C. § 1983.
However, although the Kentucky State Fair Board initially determined that, pursuant to
303 Kentucky Administrative Regulation 1:080, The Fairness Campaign could demonstrate,
Thompson decided where the protest zone would be located and, critically, Thompson had
discretion regarding who, precisely, would be placed in that zone. See R. 17-5 (Thompson Dep.
at 26) (Page ID #405) (explaining that he decided where the protest zone would be placed); id. at
49, 51 (Page ID #428, 430) (noting that the zone “was reserved for anyone who designated
themselves a protestor” and that “[i]f you sent an email, a protest notification, . . . from a
Kentucky State Police perspective you would have been treated as a protestor and been placed in
a protest area” (emphasis added)). Similarly, although the regulation at issue applied to
“demonstrations,” Thompson offered the sole explanation for the protest zone and, in doing so,
consistently referred to “protests,” rather than demonstrations. See id. As explained in further
detail below, the word “protest,” rather than “demonstration,” describes an intent to speak
No. 18-5220 Hartman et al. v. Thompson et al. Page 21
against a particular cause or event, thereby implicating possible viewpoint discrimination. When
a police officer enforces a policy in a way that, as he individually understands it, arguably
violates the Constitutional rights of protestors, I do not see how he has not allegedly “subjected”
those individuals to Constitutional violations or “cause[d]” those individuals “to be subjected” to
Constitutional violations. 42 U.S.C. § 1983. Having determined that Thompson was a correctly
named defendant, I turn to the merits of Plaintiffs’ First Amendment claim.
Plaintiffs contend that, by forcing them to protest in the designated protest zone,
Thompson violated their free speech rights under the First Amendment. Courts addressing First
Amendment speech claims focus on three inquiries: (1) whether the communication at issue “is
speech protected by the First Amendment”; (2) “the nature of the forum” in which the speech
occurs; and (3) “whether the justifications for exclusion from the relevant forum satisfy the
requisite standard.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797
(1985). As the majority correctly notes, this case turns on the second and third inquiries.
Assuming that the protest zone was located in a “limited public forum” under the second inquiry,
in order to succeed on their claim Plaintiffs must show that their exclusion to the protest zone
was viewpoint discriminatory or unreasonable “in light of the purpose served by the forum.” See
Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009); accord Miller v. City of Cincinnati,
622 F.3d 524, 534–35 (6th Cir. 2010). I believe Plaintiffs have sufficiently established both
alternative elements to survive summary judgment.
Viewpoint discrimination occurs “[w]hen the government targets not subject matter, but
particular views taken by speakers on a subject” and is thus “an egregious form of content
discrimination.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
For instance, in Lamb’s Chapel v. Center Moriches Union Free School District, the Court found
unconstitutional a school’s regulation which prohibited individuals from using its facilities to
discuss family issues from a religious perspective while permitting non-religious discussions on
the same topic. 508 U.S. 384, 393–94 (1993). In the current case, Thompson explained that the
protest area was designed “for anyone who designated themselves a protestor.” R. 17-5 at 49
(Page ID #428). When asked what he understood a “protest” to entail, he explained: “if you
show up and your cause is contrary to an event that’s being held inside and you are
No. 18-5220 Hartman et al. v. Thompson et al. Page 22
demonstrating your views that are to the contrary and you’re doing that in some demonstrative
way, then you’re obviously protesting. There’s a variety of ways you can protest.” Id. at 49–50
(Page ID #428–29) (emphasis added).
Viewed in the light most favorable to Plaintiffs, this comment––made by the officer in
charge of enforcing the Board’s regulation––raises a genuine dispute of material fact as to the
viewpoint neutrality of the restriction. Specifically, as articulated by Thompson, individuals who
appeared to speak in favor of the KFB’s policies would not be placed in the protest area, because
their views would not be “contrary to an event” taking place in the South Wing. See id.Furthermore, although the regulation at issue (303 Kentucky Administrative Regulations 1:080)
uses the word “demonstrations,” Defendants have repeatedly characterized the restriction as
focusing on “protests,” a word that naturally refers to individuals who are against a certain issue
or policy, rather than in favor of it. See, e.g., Appellees Brief at 6, 8, 11; R. 17 at 27 (Defs. Mot.
Summ. J.) (Page ID #101) (describing the designated area as a “protest area”); see also Protest,
Oxford English Dictionary (3d ed. 2018) (defining the common meaning of protest as “any
action, act, or statement expressing (emphatic) objection to or dissent from something”); Protest,
Merriam-Webster Unabridged (2016) (defining a protest as “a solemn declaration of disapproval:
a formal or public remonstrance”). Defendants’ counsel also repeatedly referred to this area as a
“protest zone” during oral argument, thus reinforcing this particular interpretation. The natural
outcome of such a restriction––and Thompson’s decision to implement it against the Plaintiffs––
is to distinguish among speakers based on the viewpoint they espouse; even in a limited public
forum, this cannot withstand constitutional scrutiny. See Lamb’s Chapel, 508 U.S. at 394(“[T]he First Amendment forbids the government to regulate speech in ways that favor some
viewpoints or ideas at the expense of others.” (quoting City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 804 (1984))).
Additionally, even if the regulation were written and applied to Plaintiffs in a viewpoint-
neutral way, I would still conclude that Plaintiffs had sufficiently established a constitutional
violation because, as articulated by Thompson, the regulation was not “reasonably related to the
purpose of the forum.” Miller v. City of Cincinnati, 622 F.3d 524, 536 (6th Cir. 2010); see also
Pleasant Grove City, 555 U.S. at 470. Neither Defendants nor the district court addressed the
No. 18-5220 Hartman et al. v. Thompson et al. Page 23
reasonableness of the restriction imposed on Plaintiffs, and it is unclear from either this record or
Defendants’ briefing what purpose the forum was meant to achieve. There are, of course,
conceivable purposes served by the fairgrounds or the protest area during the Kentucky State
Fair, including ensuring that the greatest number of people can efficiently and safely pass
through the vendor areas inside and outside the South Wing. In the context of reasonable time,
place, and manner restrictions, the Supreme Court has recognized the government’s substantial
interest in crowd control at a heavily attended event. See Heffron v. Int’l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 649–50, 654 (1981) (determining that the state had a
substantial interest in restricting leafleting to a specific area during the ticketed Minnesota State
Fair based, in part, on the need to maintain crowd control given the large number of attendees
and exhibitors). However, even assuming that the “purpose” of the forum included efficient
crowd control, the regulations in place in 2015 are not “reasonable” in light of that purpose.
As Thompson testified, the Board’s restriction in August 2015 applied only to those who
had designated themselves as “protestors.” R. 17-5 at 49 (Thompson Dep.) (Page ID #428).
During oral argument, counsel for Defendants reinforced this reasoning when he explained that if
individuals arrived to explain that they were in favor of the KFB but had not designated
themselves as protestors, they would not have been required to go to the protest area.
This distinction––between individuals who designate themselves as protestors and those
who do not––is not “reasonably related to the purpose of the forum.” Miller, 622 F.3d at 536.
Efficient crowd control is necessarily undermined if, despite failing to alert the fairgrounds of
their intent to protest, a group is permitted to demonstrate on the sidewalk outside the South
Wing and thus trigger the same concerns raised by The Fairness Campaign’s actions. Again,
counsel for Defendants made this explicit when, during oral argument, he noted that since 2015,
The Fairness Campaign has not announced their intent to protest and have been permitted to
engage in the exact same actions on the sidewalk outside the South Wing.
This court’s decision in Miller v. City of Cincinnati is instructive. In Miller, we affirmed
a grant of a preliminary injunction restraining the city from enforcing its regulation that required
private organizations to secure a city official’s sponsorship to hold expressive activities in city
hall, but did not require the official actually to attend the organization’s event. 622 F.3d at 536.
No. 18-5220 Hartman et al. v. Thompson et al. Page 24
Noting that the purpose of the forum (city hall) was to allow city officials to exercise their
responsibilities under the City Charter, we concluded that although the regulation was facially
viewpoint neutral, the restriction “b[ore] little relationship” to the purpose of the forum, since
officials were not required to attend the events they sponsored. Id.; see also City of Ladue v.
Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions from an otherwise legitimate regulation of a
medium of speech . . . may diminish the credibility of the . . . rationale for restricting speech in
the first place.”); Saieg v. City of Dearborn, 641 F.3d 727, 738 (6th Cir. 2011) (“[E]ven when a
regulation promotes a government interest that would be achieved less effectively absent the
regulation, the government’s interest may still be insubstantial if the regulation burdens
substantially less speech than is necessary to further the government’s interest.”); Ridley v. Mass.
Bay Transp. Auth., 390 F.3d 65, 87–88 (1st Cir. 2004) (determining that the defendants’
justification for the restriction––protecting children from particular advertisements––was
undermined, in part, because “there is evidence that the MBTA’s rejection of these
advertisements does not actually serve the alleged purpose”). Because Plaintiffs’ placement in
the protest area is not “reasonably related to the purpose of the forum,” I would conclude that
such confinement violated their First Amendment rights.
Finally, although the majority does not reach this issue, I would hold that Thompson1 is
not entitled to qualified immunity for excluding Plaintiffs from the protest zone. Specifically, by
applying the regulation against Plaintiffs in a way that was either viewpoint discriminatory
(protestors v. non-protestors) or unreasonable in light of the purpose of the forum (self-
designated protestors v. non-designated protestors), Thompson violated Plaintiffs’ clearly
established constitutional rights in such a way that “every reasonable official would understand
that what he is doing is unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)
(internal quotation marks omitted). It is clearly established, both by the Supreme Court and in
1Plaintiffs have not identified any evidence suggesting that the other individually named defendants,
Trooper Jason Drane and Trooper Brian Hill, were involved in the decision to move Plaintiffs to the protest area, or
that they interacted with Plaintiffs in any way prior to Plaintiffs’ entrance into the breakfast. Rather, Thompson
testified that he did not observe any other officer, besides himself, interact with Plaintiffs before the breakfast began,
R. 17-5 at 95 (Thompson Dep.) (Page ID #474), and Drane explained that he did not order any member of The
Fairness Campaign to move to a different location, R. 17-8 at 5–6 (Drane Dep.) (Page ID #651–52). Because
Plaintiffs “must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted
constitutional right,” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011) (internal quotation
marks omitted), Drane and Hill are entitled to qualified immunity on this claim.
No. 18-5220 Hartman et al. v. Thompson et al. Page 25
this Circuit, that even in limited public fora, regulations on speech must be viewpoint neutral and
reasonable; because Thompson’s actions fail this basic and well-established standard, he is not
entitled to qualified immunity. See Lamb’s Chapel, 508 U.S. at 390.
II. WRONGFUL ARREST CLAIMS
The majority also dismisses Plaintiffs’ claims for wrongful arrest predicated on their
arrests for failure to disperse and (for Chris Hartman) disorderly conduct during the Ham
Breakfast. Specifically, the majority concludes that (1) Defendants had probable cause to arrest
Sonja DeVries for failure to disperse and (2) although there was a genuine issue of material fact
as to whether Defendants had probable cause to arrest Chris Hartman and Carla Wallace for
failure to disperse, Defendants nonetheless had probable cause to arrest them for an entirely
different crime: disrupting a public meeting pursuant to Kentucky Revised Statutes 525.150.
I disagree with both conclusions.
A. DeVries Arrest for Failure to Disperse
Plaintiffs asserting a claim of false arrest must show the officers lacked probable cause to
arrest them. See Wesby, 138 S. Ct. at 585–86; Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir.
2014). An officer has probable cause to arrest an individual if “the facts and circumstances
within the officers’ knowledge [are] sufficient to warrant a [person] of reasonable caution to
believe that an offense had been, was being, or was about to be committed.” Fox v. DeSoto, 489
F.3d 227, 236 (6th Cir. 2007) (citing Brinegar v. United States, 338 U.S. 160, 175–76 (1949)).
“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the
facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146,
152 (2004).
DeVries was arrested for failure to disperse pursuant to Kentucky Revised Statutes
525.160. “A person is guilty of failure to disperse if he participates with two (2) or more persons
in a course of disorderly conduct likely to cause substantial harm or serious inconvenience,
annoyance or alarm, and intentionally refuses to disperse when ordered to do so by a peace
officer or other public servant engaged in executing or enforcing the law.” Ky. Rev. Stat. Ann.
525.160.
No. 18-5220 Hartman et al. v. Thompson et al. Page 26
The district court determined that because DeVries stated she was “waiting for a friend”
when an officer ordered her to leave the breakfast, there was probable cause to arrest her for
failure to disperse. R. 31 at 7–8 (Op.) (Page ID #770–71). However, when viewed in the light
most favorable to Plaintiffs, DeVries did not refuse to follow Hill’s orders; rather, she stated she
was “getting ready to leave,” suggesting she was, in fact, going to comply with Hill’s directive.
R. 17-3 at 24–25 (DeVries Dep.) (Page ID #264–65). Instead of providing DeVries any time to
comply, Hill immediately arrested her.
Second, even if Hill had probable cause to believe that DeVries’s statement constituted a
refusal to leave, Hill lacked probable cause under the other provisions of Kentucky Revised
Statutes 525.160. Specifically, to be arrested for failure to disperse, an individual must be
engaged in “disorderly conduct likely to cause substantial harm or serious inconvenience,
annoyance or alarm.” Disorderly conduct, in turn, requires a person in a public place to, among
other things, “[c]reate[ ] a hazardous or physically offensive condition by any act that serves no
legitimate purpose.” Ky. Rev. Stat. Ann. 525.060. Even assuming the breakfast constituted a
“public place,”2 Plaintiffs claim that at the time of DeVries’s arrest they were standing in the
back of a large venue, there were 2,000 people present, no one was sitting behind them, and
DeVries was standing for approximately thirty seconds before she was arrested. See R. 17-1 at
33 (Hartman Dep.) (Page ID #156); R. 17-3 at 25 (DeVries Dep.) (Page ID #265). And although
Defendants assert that the officers had probable cause to believe that DeVries was about to
engage in actions necessitating a request to disperse, it is not clear on this record whether Hill––
the arresting officer––was aware that Hartman had told Thompson he intended to “ramp up” the
protests. See 17-7 at 15 (Hill Dep.) (Page ID #633) (explaining that Thompson had told him that
2Under Kentucky Revised Statutes 525.010(3), a “public place” is “a place to which the public or a
substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools,
places of amusements, parks, places of business, playgrounds, and hallways, lobbies, and other portions of
apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed
to occur in a public place if it produces its offensive or proscribed consequences in a public place.” Defendants
repeatedly assert that the breakfast was a private event that was not open to the public. See Appellees Brief at 9, 20,
26 n.2; cf. Maloney v. Commonwealth, 489 S.W.3d 235, 241 (Ky. 2016) (determining that a person’s porch was
“open at least to limited access by the general public”); Thompson v. Commonwealth, No. 2015-CA-001930-MR,
2018 WL 1687692, at *2–3 (Ky. Ct. App. April 6, 2018) (determining that the driveway outside a home was
sufficiently open to the public to constitute a “public place” and affirming denial of a directed verdict); but see
Hendricks v. Commonwealth, 865 S.W.2d 332, 334–35 (Ky. 1993) (concluding that a city’s prohibition on nudity in
“public places” applied to a private establishment that was open to any individual who paid a door fee).
No. 18-5220 Hartman et al. v. Thompson et al. Page 27
there was a group “that was possibly going to protest” but not detailing Hartman’s conversation
with Thompson); King v. Harwood, 852 F.3d 568, 582 (6th Cir. 2017) (noting that, when
conducting a qualified-immunity analysis, courts must examine only the facts that each officer
knows).3
Finally, there is no evidence in the record that anyone in the KFB was actually annoyed
or offended by DeVries’s actions; rather, Thompson testified that no one from the KFB played
any role in how he and the other officers dealt with the volunteers. R. 17-5 at 70 (Thompson
Dep.) (Page ID #449); see also Commentary, Ky. Rev. Stat. Ann. 525.060 (1974) (“[A] person
may not be arrested for disorderly conduct as a result of activity which annoys only the police.”);
accord Kennedy v. City of Villa Hills, 635 F.3d 210, 215–16 (6th Cir. 2011) (“Kentucky law
does not criminalize arguments and noise that disturb only police officers because such conduct
does not risk public alarm.”); see also R. 17-7 at 6–7 (Hill Dep.) (Page ID #624–25) (explaining
that Hill did not recall that the speaker stopped talking when Plaintiffs stood up and explaining
he did not remember whether anyone from the surrounding tables got up and moved). Taken in
the light most favorable to DeVries, a reasonable jury could determine that standing up silently
in the back of a large, heavily populated room does not create “a hazardous or physically
offensive” condition, Ky. Rev. Stat. Ann. 525.060, and standing for thirty seconds is not a
serious inconvenience or annoyance, particularly when it does not block anyone’s view,
Ky. Rev. Stat. Ann. 525.160; cf. United States v. Edmundson, 405 F. App’x 964, 966 (6th Cir.
2010) (determining that a person had engaged in actions likely to alarm his neighbors under
Kentucky Revised Statutes 525.060 when he screamed at the top of his lungs that someone was
trying to kill him); Nails v. Riggs, 195 F. App’x 303, 309 (6th Cir. 2006) (concluding that there
was a genuine issue of material fact as to whether the plaintiff’s action of requesting car keys
from an officer and “gesticulating erratically” would create a hazardous or physically offensive
condition); Commonwealth v. Jones, 880 S.W.2d 544, 546 (Ky. 1994) (concluding sufficient
3The Concurrence notes that Hill was aware of The Fairness Campaign’s protest the previous year and that
the officers were not “sure” what would happen at the 2015 event. Concurrence at 19 n.1. However, as explained in
further detail below, at the time DeVries was arrested in 2015, it would have been apparent that the protestors were
not engaging in similar (or more severe) conduct as the 2014 protest.
No. 18-5220 Hartman et al. v. Thompson et al. Page 28
evidence existed to convict a suspect for disorderly conduct after she screamed obscenities
during a parade).
Consequently, I would conclude that there are at least genuine issues of material fact as to
whether Hill lacked probable cause to arrest DeVries for failing to disperse. Furthermore, based
on the above-cited case law, because no reasonably competent officer would have found
probable cause given these facts, I would find that Hill is not entitled to qualified immunity.
Wesby, 138 S. Ct. at 584; United States v. Abdi, 463 F.3d 547, 557 (6th Cir. 2006) (“It is a well-
settled principle of constitutional jurisprudence that an arrest without probable cause constitutes
an unreasonable seizure in violation of the Fourth Amendment.” (internal quotation marks
omitted)).
B. Arrests for Disruption of a Meeting
As noted above, rather than rely on Plaintiffs’ arrests for failure to disperse or disorderly
conduct, the district court and the majority instead conclude that Defendants had probable cause
to arrest Plaintiffs for an entirely separate crime: disrupting a meeting or procession under
Kentucky Revised Statutes 525.150. R. 31 (Order at 8–9) (Page ID #771); see also Devenpeck,
543 U.S. at 153–54 (concluding that because an officer’s subjective motivation does not
invalidate an otherwise lawful arrest based on probable cause, the Court would reject a rule
requiring “that the offense establishing probable cause [ ] be ‘closely related’ to, and based on
the same conduct as, the offense identified by the arresting office at the time of arrest”).
Although I have serious reservations about a district court’s authority to raise an alternative basis
for a plaintiff’s arrest for the first time in an order granting summary judgment to a defendant4,
I also believe the majority is incorrect on the merits.
4In this case, for instance, Plaintiffs had no opportunity before summary judgment was ordered to respond
to the possible applicability of Kentucky Revised Statutes 525.150. Furthermore, because Defendants did not rely
upon the statute in their motion for summary judgment, Plaintiffs were not on any reasonable notice regarding this
basis for summary judgment. Although Devenpeck permits officers to point to other statutes to support a finding of
probable cause, 543 U.S. at 152, it is not clear that courts, rather than parties, may locate and examine these
alternative crimes sua sponte. This is particularly true if the alternative offense forms the basis for an order granting
summary judgment against the plaintiffs.
No. 18-5220 Hartman et al. v. Thompson et al. Page 29
In Kentucky, a person disrupts a meeting or procession in the second degree if, “with
intent to prevent or disrupt a lawful meeting, procession, or gathering, he or she does any act
tending to obstruct or interfere with it physically or makes any utterance, gesture, or display
designed to outrage the sensibilities of the group.” Ky. Rev. Stat. Ann. 525.150. Citing no case
law, the district court determined probable cause existed primarily due to Hartman’s earlier
comment to Thompson that the protestors intended to “ramp up” their protests, as well as
Thompson’s knowledge of their protest in 2014. See R. 31 at 9 (Op.) (Page ID #772).
Defendants likewise contend that they were not required to wait for Plaintiffs to disrupt the
meeting, asserting instead that there was probable cause to believe that Plaintiffs were about to
disrupt the meeting. Appellees Brief at 20. Such speculative assumptions are insufficient to
support a finding of probable cause.
Although Hartman told Thompson they intended to “ramp up” the protests, it is unclear
whether Hartman was referring to their protests outside or inside the breakfast. Furthermore,
even if Plaintiffs did intend to ramp up their protest within the breakfast, none of their actions at
the breakfast that morning confirmed this. Specifically, the previous year, the protestors not only
stood near the buffet line in an organized line for approximately fifteen to twenty minutes, but
also walked out of the breakfast and into the lobby in order to reenter the venue later at the front
of the stage. R. 17-1 at 23 (Hartman Dep.) (Page ID #146). In contrast, in 2015, Plaintiffs did
not protest near the buffet line, but rather entered the breakfast and were seated at the back of the
room. Id. at 33 (Page ID #156). They did not walk into the lobby before the beginning of the
event and were instead stationed “along the wall that abutted the back of the auditorium.” Id.
Finally, Plaintiffs rose in unison when the first speaker began to address the crowd. Id. at 35–36
(Page ID #158–59). Rather than wait any period of time to observe whether Plaintiffs would
begin to walk toward the stage, speak loudly, or engage in any other type of physical
interference, Plaintiffs were prematurely arrested, despite the fact that Plaintiffs did not block
anyone’s view to the stage. R. 17-1 at 33 (Page ID #156). Even with Thompson’s knowledge of
their past protests, none of the circumstances in 2015 suggested that Plaintiffs intended to do
anything more than stand silently in the back of a heavily attended event for a few seconds or,
even more innocuously, simply stand up to leave the venue, a common tactic taken by protestors
during public meetings. Without more, there was insufficient evidence suggesting that Plaintiffs’
No. 18-5220 Hartman et al. v. Thompson et al. Page 30
actions obstructed or interfered with––or were about to obstruct or interfere with––the breakfast
“physically.” See McCurdy v. Montgomery County, 240 F.3d 512, 519 (6th Cir. 2001)
(concluding that an officer lacked probable cause to arrest an individual for public intoxication in
part because the officer testified “he could only ‘speculate’ on the ‘one of a million things’ that
might occur if he did not arrest” the suspect).
Defendants also lacked probable cause to arrest Plaintiffs under the second provision of
Kentucky Revised Statutes 525.150, which describes individuals engaged in “utterance[s],
gesture[s], or display[s] designed to outrage the sensibilities of the group.” Setting aside the
questionable constitutionality of such a provision, the limited commentary on this statute
suggests that “KRS 525.150 is aimed at that conduct which is likely to produce imminent
violence.” Ky. Rev. Stat. Ann. 525.150, cmt. (emphasis added). There is no evidence in the
record, and Defendants have never contended, that Plaintiffs’ actions caused or were likely to
produce imminent violence. Furthermore, Plaintiffs were permitted to enter the event without
incident, despite wearing t-shirts that enumerated the contested policies of the KFB. There is no
evidence that anyone besides Defendants considered Plaintiffs’ presence or their silent protest to
be “offensive” to the “sensibilities of the group.”5
Along with having insufficient evidence to arrest Plaintiffs for this offense, the fact that
Kentucky Revised Statutes 525.150 is a misdemeanor further reinforces the deficiencies of the
arrests. Under Kentucky and federal law, officers are permitted to arrest Plaintiffs for a
misdemeanor if the offense was “committed in his or her presence.” Ky. Rev. Stat. Ann.
431.005(1)(d) (emphasis added); see also Ky. Rev. Stat. Ann. 431.015(1)(b)(3) (permitting an
officer to conduct a warrantless arrest, rather than issue a citation, if (1) the misdemeanor is
“committed in his or her presence” and (2) the misdemeanor is “[a]n offense in which the
defendant refuses to follow the peace officer’s reasonable instructions”); Atwater v. City of Lago
5AlthoughPlaintiffs all conceded that, by wearing the same color t-shirts and standing up in unison, they
intended for people to notice them, Wallace also explained that their intent was to educate the public as to the KFB’s
policies. Education is hardly something designed to enrage the sensibilities of a group, particularly if the message
being conveyed is one Plaintiffs contend very few people in attendance were aware of. See, e.g., R. 17-1 at 34–35
(Hartman Dep.) (Page ID #157–58) (explaining that they wore the same color t-shirts to draw attention to the
group); R. 17-3 at 19 (DeVries Dep.) (Page ID #259) (same); R. 17-4 at 16 (Wallace Dep.) (Page ID #316) (same);
R. 17-4 at 44 (Wallace Dep.) (Page ID #344) (explaining that the primary point of their demonstration was to
educate the public about the policies, rather than persuade people who support the policies to change their minds).
No. 18-5220 Hartman et al. v. Thompson et al. Page 31
Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.”). Thompson testified that he understood this limitation.
R. 17-5 at 128 (Thompson Dep.) (Page ID #507). As noted above, merely standing silently in
the back of a large auditorium does not physically interfere with a meeting and none of
Plaintiffs’ actions constituted a “display designed to outrage the sensibilities of the group.”
Thus, even if Defendants believed that Plaintiffs’ actions would soon devolve into an unlawful
obstruction, I do not believe that this suspicion, without more, permitted them to arrest Plaintiffs
for a misdemeanor without a warrant. Furthermore, because no reasonable officer could
conclude, under these circumstances, that Plaintiffs were committing a misdemeanor in the
presence of Defendants, I would deny Hill, Thompson, and Drane qualified immunity.
III. FIRST AMENDMENT RETALIATION
Along with asserting that Defendants lacked probable cause to arrest them, Plaintiffs
contend their arrests constituted First Amendment retaliation. R. 1-2 ¶¶ 21, 33 (Am. Compl.)
(Page ID #14–16). In order to assert a claim for retaliatory arrest, a plaintiff must show:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two––that is, the adverse action was motivated at least in part
by the plaintiff’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Notably, while the Supreme
Court has recently clarified that, with an important caveat,6 “[t]he presence of probable cause
should generally defeat a First Amendment retaliatory arrest claim,” Nieves v. Bartlett, 139 S. Ct.
1715, 1726 (2019), because I conclude that Defendants lacked probable cause to arrest the
Plaintiffs, my analysis focuses on the elements established in Thaddeus-X.
6As the majority notes, the Supreme Court in Nieves held that, notwithstanding the general rule that
probable cause defeats a claim for a retaliatory arrest under the First Amendment, “the no-probable-cause
requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves, 139 S. Ct. at
1727. Because I conclude that Defendants lacked probable cause to arrest Plaintiffs, I need not rely on this
exception to the Nieves holding.
No. 18-5220 Hartman et al. v. Thompson et al. Page 32
A. Protected Conduct
As for the first prong, engaging in a protest would generally be considered “protected
conduct.” Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th Cir.
2007). In response, Defendants asserted in their motion for summary judgment that Plaintiffs did
not have a First Amendment right to protest within a private venue and, therefore, were not
conceivably engaged in “protected conduct.” See R. 17 at 32–37 (Defs. Mot. Summ. J.) (Page
ID #106–11). Although Defendants failed to reiterate this argument on appeal (and have
therefore conceivably waived it), I believe it nonetheless fails as a matter of law. First, although
a person may arguably be removed from private property based on the content of their speech,
see United States v. Kokinda, 497 U.S. 720, 725–26 (1990) (“The Government, even when acting
in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints,
as does a private business”), Defendants have not demonstrated that the KFB’s sponsorship of
the event turned what was otherwise state-owned land––the South Wing––into private property.
Defendants point to a sponsorship agreement between the KFB and the Board for support, but
(1) that agreement dealt with the Pride of the Counties Exhibit that the KFB sponsored, not the
breakfast; and (2) the agreement explained only that the KFB was an exclusive sponsor of the
event. It was therefore not a “lease” and did not provide that the KFB was otherwise permitted
to exclude individuals; rather, the Board retained the responsibility to “produce” the event. See
R. 17-1 at 1–3 (Sponsorship Agreement) (Page ID #185–87). The KFB’s lack of complete
control over the event is further shown by the fact that it was the Board and the Defendants, not
the KFB, that determined that Plaintiffs would be removed from the venue and prohibited from
protesting at the breakfast. See, e.g., R. 17-5 (Thompson Dep. at 70) (Page ID #449) (testifying
that the KFB played no role in determining how the Board and Thompson dealt with The
Fairness Campaign). Because the Board maintained control over the breakfast and opened up
the event to discussion of a particular topic––the KFB breakfast agenda––at most the breakfast
constituted a limited public forum that was being monitored by Defendants.
Second, to the extent the KFB had an exclusive permit to hold the breakfast, Defendants
were still not permitted to exclude Plaintiffs from this limited public forum based on the
viewpoint of Plaintiffs’ speech. Although some cases have found that private, permitted events
No. 18-5220 Hartman et al. v. Thompson et al. Page 33
in otherwise public fora may exclude individuals based on the viewpoint of their speech in
certain circumstances, these cases are distinguishable. See Hurley v. Irish-American Gay,
Lesbian and Bisexual Grp. of Bos., Inc., 515 U.S. 557, 559 (1995) (determining that
Massachusetts’s law prohibiting discrimination in public accommodations violated the First
Amendment when it “require[d] private citizens who organize a parade to include among the
marchers a group imparting a message the organizers do not wish to convey”); Sistrunk v. City of
Strongsville, 99 F.3d 194, 196, 198–99 (6th Cir. 1996) (discussing Hurley and determining that
the City did not violate the plaintiff’s First Amendment rights when the city “permit[ed] the
Bush-Quayle ’92 Committee to exclude members of the public from a traditional public forum
based on the content of their speech,” including instructing a person to remove their pro-Clinton
button).
The decisions in Sistrunk and Hurley were based in large part on the plaintiff’s level of
involvement in the expressive activity of the parade and political rally. See Hurley, 515 U.S. at573–74 (noting that Massachusetts’s law would require the parade organizers to place
individuals in the parade); Sistrunk, 99 F.3d at 199–200 (explaining that the organizers “sought
to assemble in order to convey a pro-Bush message to the media by use of pro-Bush speakers
and largely pro-Bush attendees,” and that requiring the Committee to permit an individual who
supported a contrary message “would alter the message the organizers sent to the media and
other observers”). Unlike participants in a parade or rally (who are often actively involved in
creating and reinforcing the message of the sponsoring group), Plaintiffs were merely audience
members of an organization-sponsored event in which various political views and opinions were
expressed. Furthermore, unlike a participant in a parade, Plaintiffs silently stood in the back of
the event and did not block anyone’s view to the stage. See McGlone v. Metro. Gov’t of
Nashville, 749 F. App’x 402, 407 (6th Cir. 2018) (distinguishing Sistrunk by noting that the
McGlone plaintiffs were not attempting to participate in a pro-LGBT event and providing, as a
counter-example, “a MAGA-hatted man claiming a First Amendment right to stand behind
Hillary Clinton at a campaign rally”). Consequently, to the extent Defendants’ argument is even
reviewable, it does not render Plaintiffs’ protest in the Ham Breakfast non-protected conduct.
No. 18-5220 Hartman et al. v. Thompson et al. Page 34
B. Adverse Action
As to the second prong, there can be no serious dispute that arresting a person is an
“adverse action [which] would deter a person of ordinary firmness from continuing to engage in
that conduct.” Thaddeus-X, 175 F.3d at 394; see also Springboro, 477 F.3d at 822 (determining
that a two and one-half hour detention by the police was sufficiently adverse).
C. Causal Connection & Discriminatory Motive
To meet the last element of First Amendment retaliatory arrest, Plaintiffs must identify
sufficient evidence showing that their arrests were “motivated at least in part by the plaintiff’s
protected conduct.” Thaddeus-X, 175 F.3d at 394. Importantly, “[b]ecause direct evidence of
motive is difficult to produce, claims involving proof of a defendant’s intent seldom lend
themselves to summary disposition and circumstantial evidence may provide sufficient evidence
of retaliatory intent to survive summary judgment.” Kennedy, 635 F.3d at 218 (internal
quotation marks omitted).
Although Defendants contend that they arrested and removed Plaintiffs from the venue
due only to their physical disruption, see Appellees Brief at 33–34, I believe that evidence in the
record supports a contrary conclusion. First, Thompson explained that an individual was
engaged in a “protest” if he or she “show[s] up and [their] cause is contrary to an event that’s
being held inside and [they] are demonstrating [their] views that are to the contrary and [they’re]
doing that in some demonstrative way, then [they’re] obviously protesting.” R. 17-5 at 49–50
(Thompson Dep.) (Page ID #428–29). Thompson explained repeatedly that he arrested Plaintiffs
because they were being disruptive due to their protest, i.e., due to actions which were “contrary
to” the KFB breakfast. See id. at 85 (Page ID #464) (testifying that he told Hartman “I’m
promising you, if you protest inside, it’s not going to be good. Your protest area is outside”); id.
at 103 (Page ID #482) (explaining that in order to disrupt a meeting, “[i]t can simply be you are
contrary to the decorum of an event or to a room, especially when you have been forewarned that
there would not be any type of protest permitted inside this venue”). Furthermore, Thompson
had been to the breakfast in 2014 and received The Fairness Campaign’s press release; he was
thus aware of The Fairness Campaign’s viewpoint vis à vis the KFB. See id. at 29–30 (Page ID
No. 18-5220 Hartman et al. v. Thompson et al. Page 35
#408–09); R. 17-2 at 1–2 (The Fairness Campaign Announcement) (Page ID #239–40).
Similarly, both Hill and Drane testified that they were aware of Plaintiffs’ intent to “protest” and
that The Fairness Campaign had previously protested the breakfast (and thus the KFB) in 2014.
See R. 17-7 at 15 (Hill Dep.) (Page ID #633) (explaining that “I think last year they like stood up
in front of everybody”); R. 17-8 at 8 (Drane Dep.) (Page ID #654). As noted above, unlike the
word “demonstrate,” “protest” implies an intention to speak against a particular cause or event.
Even more suggestive of a viewpoint discriminatory motive is Defendants’ own brief.
Specifically, in asserting that Defendants had probable cause to arrest Plaintiffs for disrupting a
meeting, Defendants explain the disruption in terms of Plaintiffs’ offensive message.
See Appellees Brief at 9 (“[T]he disruption functioned as a strategic attempt to promote a protest
at the expense of both KFB and the sensibilities of persons who had gathered for the breakfast
instead of the aims of The Fairness Campaign.”); id. (“[T]he group was out of order, interfering
with, and obstructing KFB’s objectives.”); id. at 20 (explaining that Plaintiffs were “creating an
unjustified distraction by standing with the signage of bright orange t-shirts all of which
highlighted KFB’s disputed policies” and noting Plaintiffs were “engaging in a group protest that
was competing with and out of order for KFB’s program”).
Considered in the light most favorable to Plaintiffs, this evidence supports an inference of
discriminatory motive based on the viewpoint of Plaintiffs’ speech. Put simply, there are
genuine issues of material fact as to whether Defendants would have arrested individuals who
stood up to express a message which was supportive of the KFB, rather than engaging in a
“protest” against the breakfast. Consequently, Defendants have also not illustrated “that [they]
would have taken the same action in the absence of the protected activity.” Springboro,
477 F.3d at 821 (internal quotation marks omitted); id. at 823–24 (concluding that although the
officers would have stopped the plaintiffs’ car regardless of their anti-abortion speech, once the
officers had determined the plaintiffs did not pose a security risk, their extended detention was
unwarranted). Furthermore, because “it is well-established that a public official’s retaliation
against an individual exercising his or her First Amendment rights is a violation of § 1983,”
Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997), I would not extend qualified immunity
to Defendants. See also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 111–12 (2001)
No. 18-5220 Hartman et al. v. Thompson et al. Page 36
(affirming the Court’s previous holding “that speech discussing otherwise permissible subjects
cannot be excluded from a limited public forum on the ground that the subject is discussed from
a [disfavored] viewpoint”).
IV. CONCLUSION
For all the reasons stated above, I respectfully dissent. Because I believe Thompson was
a correctly named Defendant and that there are genuine issues of material fact regarding whether
Plaintiffs’ placement in the protest zone was constitutional under the First Amendment, I would
allow this claim to proceed to trial. Furthermore, because Plaintiffs have established genuine
issues of material fact regarding their arrests during the Ham Breakfast, as well as Defendants’
motives in making the arrests, I would reverse the district court’s order dismissing Plaintiffs’
wrongful arrest and First Amendment retaliation claims.