Bernard v. Detroit Public School District et al

Filing 32

OPINION AND ORDER Granting Defendants' 22 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WAYNE BERNARD,
Plaintiff,

Case No. 12-cv-13992
Hon. Matthew F. Leitman

v.
DETROIT PUBLIC SCHOOL
DISTRICT et al.,
Defendants.
_________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF #22)
INTRODUCTION
This is a civil-rights action brought by Plaintiff Wayne Bernard (“Bernard”),
a former employee of Defendant Detroit Public School District (“DPS”). On
September 10, 2009, Bernard spoke during the public comment portion of a
meeting held by the DPS Board of Education (the “Board”). During his remarks,
Bernard announced to the Board that he was about to reveal the personal employee
identification numbers of certain DPS employees. Bernard had previously read (or
attempted to read) these numbers at earlier Board meetings, and, according to
Board President Defendant Carla Scott (“Scott”), that resulted in “havoc.” In order
to avoid another major disruption, Scott cut off Bernard before he could read the
file numbers and asked that security escort him from the room. Bernard was
1

subsequently arrested and charged with disorderly conduct and, later, with
disrupting a public meeting. Both charges were eventually dismissed.
On September 10, 2012, Bernard filed this action against DPS, Scott, and the
police officers he claims were involved in his arrest. (See the “Complaint,” ECF
#1.) Among other things, Bernard claims that Scott violated his First Amendment
rights when she cut off his remarks to the Board and that his civil rights were
violated when he was arrested and prosecuted. (See generally, id.) Defendants
have now moved for summary judgment. (See the “Motion,” ECF #22.) For the
reasons that follow, the Court GRANTS Defendants’ Motion.
FACTUAL BACKGROUND
In October 2008, Bernard worked for DPS as an aerial tower operator,
earning $15.00 per hour. (See Bernard Dep., ECF #27-1 at 14, Pg. ID 363.) In
early November 2008, DPS laid off Bernard from his job. (See id. at 13-14, Pg. ID
362-363.) Bernard says that he was told DPS eliminated his job due to “economic
necessity.” (Id. at 16, Pg. ID 365.) Bernard asserts, however, that at this same
time, other DPS employees were “receiving overtime when [Bernard] was
[purportedly] laid off for economic necessity.” (Id. at 52, Pg. ID 401.) Upset over
DPS’s budget practices, Bernard attended Board meetings and spoke during the
time allotted for public comment.

2

Defendant Carla Scott (“Scott”) was the President of the Board from 20092011. (See Scott Dep., ECF #27-2 at 7, Pg. ID 467.) According to Scott, on
several occasions during her tenure as President, Bernard would speak during the
time dedicated to public comment, and he would “read [out loud] people’s
[employee] file numbers,” which were “private numbers attached to particular
[DPS] employees.” (Id. at 19, Pg. ID 479.) Scott explained that when Bernard
disclosed, or attempted to disclose, these file numbers, he “caused [] a disturbance
at the Board meeting…People would get upset, they would start yelling…It
[would] cause[] a lot of havoc at the meetings.” (Id. at 20, Pg. ID 480.) (See also
id. at 24, Pg. ID 484 (“Every time [Bernard] attempted to read off the file numbers,
it caused a problem” in the audience).)

Scott therefore told Bernard that he

“cannot do that [i.e., publically disclose the numbers] and [she] would make him
stop, or [she] would turn off the mic[rophone]” when he attempted to read them
out loud. (Id. at 20, Pg. ID 480.) (See also id. at 23-24, Pg. ID 483-484 (“At
subsequent Board meetings, [] Bernard attempted to [read off the file numbers]
again; and [Scott] never let him. [Scott] always stopped [Bernard] from reading
the numbers”).)
On September 10, 2009, Bernard attended a Board meeting and he spoke
during the time allotted for public comment. Bernard first discussed a number of
issues without incident or interruption. (See Bernard Dep. at 46-49, Pg. ID 3953

398.) Then Bernard announced to the Board that he was once again going to read
aloud the employee file numbers of the DPS employees he believed to be receiving
overtime compensation.1 (Id.)
When Bernard threatened to disclose the file numbers, Scott stopped him
and asked security to remove him from the meeting. According to Scott:
So when [Bernard] got up this time and said, “I’m going
to read these file numbers” – and the reason why he said
that [is] because he already knew that I wasn’t going to
allow him to read the file numbers because I cannot have
him inciting a riot at the Board meeting. It’s just not
going to be allowed.
Then I had him removed because, number one, I believe
the information to be private because that’s what I had
been told. Then number two is because it incites such a
disturbance at the Board meeting that – and it has – to
me, stating those numbers has nothing to do with
whatever your comment is about. You should be able to
say without giving people’s personal information out.
[….]
So that’s why I had him removed, because I just – I just
can’t have him, you know … having a huge hullabaloo. I
just didn’t want a riot at the meeting.
(Scott Dep. at 20-21, Pg. ID 480-481.)

1

It is unclear from the record whether Bernard actually had the file numbers in his
possession when he spoke to the Board on September 10, 2009. It appears, based
on his deposition testimony, that Bernard could not actually “read [the file
numbers] off because they were blackened out” on the papers he had at that time.
(Bernard Dep. at 46, Pg. ID 395; see also id. at 61, Pg. ID 410 (“[Bernard] couldn’t
read their numbers because [the numbers] were blackened out”).)
4

Bernard was escorted from the meeting by members of the Detroit Public
Schools Police Department, including (apparently) Defendants Lance Granberry
(“Granberry”) and Kelley Mays (“Mays”). As he was being escorted out of the
room, Bernard loudly told the officers to keep their hands off of him, and he
repeatedly yelled “you’re going to get sued; you’re going to get sued.” (See video
of the incident, ECF #30; see also Scott Dep. at 67-68, Pg. ID 527-28 – confirming
that Bernard was “still yelling, you know, as he was walking out.”)
Bernard says that after he was taken into the hallway, he was surrounded by
Granberry, Mays, and two other officers, Defendant Deborah Crane (“Crane”) and
Defendant Dennis Richardson (“Richardson”). (See Bernard Dep. at 69, Pg. ID
418.) Defendant Roderick Grimes (“Grimes”) supposedly stood “off on the side.”
(Id.) Bernard says that Crane then “got up in [his] face” and gave an order that he
be arrested. (Id. at 70, Pg. ID 419.) Granberry then grabbed Bernard’s arm and
Richardson handcuffed him. (See id. at 71, Pg. ID 420.) Bernard was ultimately
transported to a police station for processing. (See id. at 72-73, Pg. ID 421-422.)
At some point, Granberry purportedly told Bernard that he was being
arrested because he “raised [his] voice and [] was disorderly in the meeting.” (Id.
at 71, Pg. ID 420.) According to Bernard, Granberry said that “he [Granberry]
could hear [Bernard] all the way out in … the hallway.” (Id. at 72, Pg. ID 421.)

5

Following his arrest, Bernard was charged with disorderly conduct in
violation of the Detroit City Code. (See September 22, 2009, Warrant, ECF #27-6,
Pg. ID 556-557.) Mays was listed on the warrant as the “victim or complainant.”
(See id.) That charged was dismissed. (See Bernard Dep. at 81-82, Pg. ID 430431.) Bernard was then charged with a new offense for his conduct before the
Board: disturbing a public meeting. (See April 7, 2010, Warrant, ECF #27-7, Pg.
ID 559-560.) Mays was again listed as the “victim or complainant.” (see id.) That
charge was also subsequently dismissed. (See Bernard Dep. at 81-82, Pg. ID 430431.)
PROCEDURAL HISTORY
Bernard filed this action against DPS, Scott, Grimes, Richardson, Crane,
Mays, and Granberry on September 10, 2012. (See Compl.) The Complaint,
brought pursuant to 42 U.S.C. § 1983, includes six separate counts:
 In Count I, Bernard claims that Scott and DPS violated his First Amendment
rights when they refused to allow him to “speak publicly at the appropriate
time in a regularly scheduled meeting.” (Id. at ¶34.)
 In Count II, Bernard alleges that all Defendants brought “a false and baseless
charge against [him] [] in retaliation for [his] attempted exercise of his First
Amendment rights.” (Id. at ¶38.)
 In Count III, Bernard claims that Defendants Grimes, Richardson, Crane,
Mays, and Granberry “falsely arrest[ed] and detain[ed] [him] with no basis
in fact or law to do so.” (Id. at ¶41.)
6

 In Count IV, Bernard alleges that DPS and Defendants Grimes, Richardson,
Crane, Mays, and Granberry are liable for malicious prosecution with
respect to the criminal charges brought against him. (See id. at ¶¶43-44.)
 In Count V, Bernard asserts that Defendants Scott, Grimes, Richardson,
Crane, Mays, and Granberry conspired to generate a false police report and
wrongfully prosecute him. (See id. at ¶¶46-47.)
 Finally, in Count IV, Bernard seeks to hold DPS liable for the conduct of the
other Defendants. (See id. at ¶49.)
Defendants moved for summary judgment on October 14, 2014. (See Mot.)
Defendants claim they are entitled to qualified immunity and that Bernard has not
presented sufficient evidence to support his claims. (See id.) The Court heard oral
argument on Defendants’ Motion on April 15, 2015.
GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when he “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)) (quotations omitted). “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. However, summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251-252.
7

When reviewing the record, “the court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in its
favor.” Id. Indeed, “[c]redibility determinations, the weighing of the evidence,
and the drafting of legitimate inferences from the facts are jury functions, not those
of a judge…” Id. at 255.
ANALYSIS
A.

The Qualified Immunity Standard
All Defendants have moved for summary judgment, at least in part, on the

basis of qualified immunity.

“Under the doctrine of qualified immunity,

government officials performing discretionary functions generally are shielded
from liability from civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Dominguez v. Correctional Med. Servs., 555 F.3d 543, 549 (6th Cir.
2009) (internal citation omitted).
The qualified-immunity analysis involves a burden-shifting framework.
Defendants “bear[] the initial burden of coming forward with facts to suggest that
[they] acted within the scope of [their] discretionary authority during the incident
in question.”

Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000).

Ultimately, however, Bernard must establish that the Defendants are not entitled to
qualified immunity.

Bernard can satisfy this burden by showing that (1) “a
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constitutional right was violated,” and (2) “that the right was clearly established at
the time of the violation.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009) (internal citations omitted). The Court has discretion to decide “which
of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555
U.S. 223, 236 (2009).
A.

Scott Is Entitled to Summary Judgment on All of Bernard’s
Claims Brought Against Her
1.

Scott is Entitled to Qualified Immunity With Respect to
Bernard’s First Amendment Claim

Scott argues that she is entitled to qualified immunity with respect to
Bernard’s claim that she interfered with his right to free speech when she cut off
his address to the Board on September 10, 2009. (See Mot. at 14-17, Pg. ID 140143.) The Court agrees.
First, Scott has established that she was acting within her discretionary
authority when she stopped Bernard from speaking and had him escorted from the
room when he threatened to read the employee file numbers. Scott has presented
evidence that as President of the Board, she was authorized to order the removal of
persons like Bernard whom she believed to pose a threat to the order of the
meeting. (See Board Policy 3.20, ECF #22-3; Board Policy 3.23, ECF #22-4; and
Board Policy 3.22, ECF #22-5.) Scott has also presented evidence that Board
9

meetings were often chaotic; that when Bernard either read the employee file
numbers or attempted to do so in the past, his actions caused substantial
disruptions; and that she had Bernard removed from the September 10, 2009,
meeting because his threat to read employee file numbers created a serious risk of
causing a disturbance. (See, e.g., Scott Dep. at 19-25, Pg. ID 479-485.) Scott has
therefore established that she was exercising her discretionary authority to keep
order at Board meetings when she had Bernard removed.
Bernard counters that under the Board’s rules, Scott lacked the authority to
take this action without first issuing him a warning. (See Bernard Resp., ECF #27
at 2, Pg. ID 325.) However, the applicable Board policy unambiguously states that
“persons … [attending a meeting] shall not engage in any kind of behavior which
disrupts the school board meeting being conducted” and that the chairperson (i.e.,
Scott) “at his or her discretion shall issue one general warning before security
personnel will be directed to remove and ticket the person…” (Board Policy 3.22,
ECF #27-5 at 3, Pg. ID 554; emphasis added.) Scott plainly did not have to issue a
warning to Bernard before having him removed from the room. Furthermore, and
in any event, the Court has reviewed the video of the incident the parties have
provided (see ECF #30), and at 38:00-38:10 of that video, Scott tells Bernard that
he cannot read the file numbers, and Bernard responds that he is “not done” with
his statement to the Board, and he specifically again threatens to read the numbers.
10

Only then did Scott have Bernard escorted from the meeting. The Court construes
Scott’s statement to Bernard as a warning that he could not proceed to read the
numbers aloud. Moreover, Scott testified that she also had warned Bernard, at
multiple other meetings, that he was not allowed to read the employee file numbers
out loud. (See Scott Dep. at 20, Pg. ID 480.)
With Scott having established that she was acting within her discretionary
authority, the burden shifts to Bernard to show that Scott is not entitled to qualified
immunity. Bernard has not satisfied his burden to show that Scott’s conduct
violated a clearly established constitutional right. “A defendant cannot be said to
have violated a clearly established right unless the right's contours were
sufficiently definite that any reasonable official in the defendant's shoes would
have understood that he was violating it. In other words, existing precedent must
have placed the statutory or constitutional question confronted by the official
beyond debate.” Wenk v. O’Reilly, --- F.3d ---, 2015 WL 1652548, at *11 (6th Cir.
Apr. 15, 2015) (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)). “A
right is clearly established if there is binding precedent from the Supreme Court,
the Sixth Circuit, the district court itself, or other circuits that is directly on point.”
Id. (quoting Gaspers v. Ohio Dep’t of Youth Servs., 648 F.3d 400, 417 (6th Cir.
2011)). “The ‘clearly established law’ should not be defined ‘at a high level of
generality, since doing so avoids the crucial question whether the official acted
11

reasonably in the particular circumstances that he or she faced.’” Id. (quoting
Plumhoff, 134 S.Ct. at 2023).
Bernard has failed to show that he had a clearly established First
Amendment right to engage in speech at a public meeting – here, reading personal
employee file numbers – where that same speech had previously created serious
disturbances. Bernard has not cited a single case to the Court – much less one
from the Supreme Court, the Court of Appeals for the Sixth Circuit, or this Court –
in which any court has held that the presiding officer of a public meeting may not
prevent a speaker from engaging in speech that previously caused chaos and
disruption and that could reasonably be anticipated to cause a serious disruption
once again.
The only case Bernard does cite concerning First Amendment rights at
public meetings, McBride v. Village Michiana, 100 F.3d 457 (6th Cir. 1996), is
inapposite.

The plaintiff in McBride, a reporter, claimed that government

employees retaliated against her for her “less-than-glowing accounts of
representative democracy in Southern Michigan.”

Id. at 459.

The plaintiff-

reporter also asserted that the government officials threatened to boycott her
newspaper, urged her newspaper to take her off the government beat, and
threatened to remove her from a press table at a city council meeting. See id.
McBride, though, does not speak to the question presented here: namely, whether a
12

speaker has a First Amendment right to make statements during a public meeting
that have previously created chaos in the audience and which could be anticipated
to cause such a disturbance again.
Bernard has simply not cited any authority to support his claim that he had a
clearly established First Amendment right to engage in his proposed speech despite
(1) its prior disruptive consequences and (2) Scott’s reasonable, experienced-based
fear that the consequences would ensue once again. Such authority may exist. It is
certainly possible that courts have recognized that a person chairing a public
meeting may not silence a speaker based upon a reasonable anticipation that his
repetition of previously disruptive speech will once again be disruptive. Courts
may also have held that a meeting chair must wait until a disturbance actually
occurs before silencing a speaker. But Bernard has not directed this Court to any
such case, and it is not this Court’s obligation to conduct Bernard’s research for
him.2 Moreover, Bernard’s claimed First Amendment violation seems especially
weak in light of the fact that Scott would have allowed Bernard to make his desired
point that the Board was incurring wasteful overtime expenses if he had simply
refrained from attempting to read the personal employee file numbers.

(See

Bernard Dep. at 46-49, Pg. ID 395-398 (where Bernard testifies that he was able to

2

This Court makes no holding as to whether Bernard had a First Amendment right
to engage in his proposed speech. The Court holds only that Bernard has failed to
carry his burden to establish that he had a clearly-established right to engage in the
speech.
13

speak to the Board on other topics without interruption during the meeting in
question).) Bernard has not cited any authority to support his argument that he had
a First Amendment right to disclose personal employee information as part of his
effort to comment on the public issue of overtime expenses.3
Because Bernard has not met his burden to show that Scott violated a
clearly-established constitutional right, Scott is entitled to qualified immunity on
Bernard’s claim that Scott violated his First Amendment rights.
2.

Bernard Has Produced No Evidence Scott Was Involved in His
Arrest and/or Prosecution in Any Way

In addition to alleging that Scott violated his First Amendment rights,
Bernard also seeks to hold Scott liable for his arrest and prosecution, and for
conspiring with the other Defendants to have him arrested and prosecuted. But
Bernard has not presented any evidence connecting Scott to his arrest or
prosecution.

3

In his brief, Bernard argues that the employee numbers were public information.
(See Resp. Br. at 3, Pg. ID 326.) Bernard says that DPS gave him the numbers in
response to a Freedom of Information Act (“FOIA”) request. (See id.) But
Bernard has not identified sufficient evidence to support his claim that the numbers
were public information. Indeed, Bernard admitted during his deposition that the
numbers were blacked out on many documents that he received from DPS in
response to his FOIA requests. (See Bernard Dep. at 61-62, Pg. ID 410-11 – noting
that “[a]ll the ones I had were blackened out” – and at 22 & 46, Pg. ID 371 & 395.)
While there are ambiguous portions of Bernard’s testimony that arguably indicate
that he may have received a limited number of documents from DPS in which the
employee numbers were listed (see Bernard Dep. at 22, Pg. ID 371), there is no
evidence that DPS knowingly or intentionally provided the numbers to Bernard nor
that DPS ever acknowledged that the numbers were public information.
14

Scott testified that when she asked security to remove Bernard from the
meeting, she did not intend for Bernard to be arrested, and she explained that if he
was arrested, “something else [must have] happened” either during or after security
removed him. (Scott Dep. at 56, Pg. ID 516.) There is no evidence in the record
that Scott asked security to arrest Bernard. Indeed, Bernard confirmed that he only
heard Scott call for security and that he never heard her ask security to arrest him.
(See Bernard Dep. at 66, Pg. ID 415.) And nothing links Scott to the decision to
file charges against Bernard. As Bernard has produced no evidence that Scott had
anything to do with his arrest or prosecution, Scott is entitled to summary
judgment on each of the other claims brought against her.
B.

Defendant Grimes is Entitled to Summary Judgment on All Claims
Brought Against Him
Bernard has brought claims related to his arrest and prosecution against

Grimes, the Chief of the Detroit Public Schools Police Department. Bernard
argues that “Chief Grimes command[ed] the arrest” and that the officers who
arrested Bernard “were told to arrest [him] by their superior, The Chief [i.e.,
Grimes].” (Bernard Br. at 13, Pg. ID 336.) But this argument is flatly contradicted
by Bernard’s own deposition testimony. During his deposition, Bernard testified
that Grimes did not arrest him and did not give the order that he be arrested. (See
Bernard Dep. at 67-68, Pg. ID 416-417.) In fact, Bernard testified that had “no
personal knowledge of any conduct by [] Grimes” related to his arrest. (Id. at 68,
15

Pg. ID 417.) Bernard further identified Defendant Crane, not Grimes, as the
officer who gave the order to have him arrested. (See, e.g., id. at 70, Pg. ID 419.)
Because Bernard has not identified any evidence in the record tying Grimes to his
arrest or prosecution, Grimes is entitled to summary judgment on each of the
claims brought against him.
C.

Bernard Claims Against DPS Fail as a Matter of Law
In his Complaint, Bernard brings at least two claims against DPS:

“Prosecution Without Probable Cause” (Count IV) and “Municipal Liability”
(Count VI). Bernard also appears to name all Defendants, including DPS, in his
claim for “retaliatory prosecution” (Count II). But Bernard “cannot base his claims
against [DPS] solely on the individual defendants’ conduct because respondeat
superior is not available as a theory of recovery under section 1983.’” Vereecke v.
Huron Valley School Dist., 609 F.3d 392, 403 (6th Cir. 2010) (internal quotation
marks omitted) (refusing to apply respondeat superior liability to school district
under 42 U.S.C. § 1983); see also Jenkins v. Rock Hill Local School Dist., 513
F.3d 580, 589 (6th Cir. 2008) (“The district court also did not err in granting
summary judgment to the School Board…because there is no respondeat superior
liability in actions under § 1983”). Instead of relying on the conduct of the
individual Defendants, “[t]o hold [DPS] liable, [Bernard] must: “(1) identify [a]
[DPS] policy or custom, (2) connect the policy to [DPS], and (3) show that his
16

particular injury was incurred due to the execution of that policy.” Vereecke, 609
F.3d at 403.
Here, Bernard’s claims against DPS fail in all three respects. Bernard’s
Complaint does not identify a “policy or custom” related to his arrest and
prosecution, does not allege any facts that would support a connection between
such a policy and DPS, and does not allege that his injuries were incurred due to
the execution of such a policy. Likewise, he has offered no evidence on any of
these three required elements of his claims against DPS. Accordingly, Bernard’s
claims against DPS fail as a matter of law.
D.

The Remaining Officer Defendants (Richardson, Crane, Mays, and
Granberry) Are Entitled to Summary Judgment
Defendants Richardson, Crane, Mays, and Granberry (the “Officer

Defendants”) have also moved for summary judgment on all of Bernard’s claims.
(See Mot. at 17-24, Pg. ID 143-150.) They argue that they are entitled to qualified
immunity and, in addition, that Bernard’s claims fail due to a lack of evidence.
The Court agrees that Bernard’s claims against the Officer Defendants fail for one
or both of these reasons.
1.

The Officer Defendants Are Entitled to Qualified Immunity on
Bernard’s “Retaliatory Prosecution” Claim (Count II)

In Count II of his Complaint, titled “Retaliatory Prosecution,” Bernard
claims that the acts of all the Defendants, including the Officer Defendants, “in
17

bringing a false and baseless charge against [him] were in retaliation for [his]
attempted exercise of his First Amendment rights to petition the [Board].”
(Compl. at ¶38.) This count, therefore, relates to the Officer Defendants’ alleged
role in Bernard’s arrest and prosecution. The Officer Defendants argue that they
are entitled to qualified immunity from this claim. (See Mot. at 19-20.) The Court
agrees.
First, to the extent that each of the Officer Defendants participated in the
arrest and prosecution of Bernard, they were acting within the scope of their
discretionary authority. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002) (“there can be no doubt that [a police officer] was acting in his discretionary
capacity when he arrested [the plaintiff]”); Edwards v. Shanley, 666 F.3d 1289,
1294 (11th Cir. 2012) (“It is undisputed that [the police officers] were acting
within their discretionary authority while tracking and arresting [the plaintiff]”).
Bernard counters that while such functions may ordinarily fall within the scope of
an officer’s discretionary authority, that is not the case here because, Bernard
claims, the Officer Defendants were ordered to arrest him. (See Resp. Br. at 13, Pg.
ID 336.) But Bernard cites no authority for the proposition that an officer loses the
protection of qualified immunity if he is implementing an order from a superior.
Thus, the burden shifts to Bernard to show that “a constitutional right was
violated,” and (2) “that the right was clearly established at the time of the
18

violation.” Chappell, 585 F.3d at 907. But, for all the reasons stated above with
respect to Scott, Bernard has failed to carry his burden to show that he had a
clearly established First Amendment right to read the employee file numbers
during the meeting given the past disruption and chaos that reading those numbers
had caused.

Because Bernard has not demonstrated that his arrest and/or

prosecution interfered with a clearly-established First Amendment right, the
Officer Defendants are entitled to qualified immunity on Bernard’s First
Amendment retaliatory prosecution claim.
Moreover, even if the Officer Defendants were not entitled to qualified
immunity on this claim, it would still fail for lack of evidence. As described
below, there is simply no evidence that any of the Officer Defendants participated
in his prosecution as Bernard claims.
2.

The Officer Defendants Are Entitled to Qualified Immunity on
Bernard’s “False Arrest/False Imprisonment” Claim (Count III)

In Count III of his Complaint, Bernard claims that the Officer Defendants
“falsely arrest[ed] and detain[ed] [him] with no basis in fact or law to do so.”
(Compl. at ¶41.) The Officer Defendants are entitled to qualified immunity on this
claim as well.
“An arresting agent is entitled to qualified immunity if he or she could
reasonably (even if erroneously) have believed that the arrest was lawful, in light
of clearly established law and the information possessed at the time by the
19

arresting agent.” Everson v. Leis, 556 F.3d 484, 499 (6th Cir. 2009). An arrest is
lawful if supported by probable cause to believe that the arrestee has committed a
crime. See, e.g., United States v. Cunningham, 520 Fed. App’x 413, 416 (6th Cir.
2013) (suspect’s “arrest was lawful because it was supported by probable cause”).
Here, the Officer Defendants could reasonably have concluded that they had
probable cause to arrest Bernard for disturbing the peace and/or disturbing the
Board meeting.
First, the officers could reasonably have relied on Scott’s determination that
Bernard was out of order for attempting to publicly reveal the personal employee
file numbers. Indeed, the Sixth Circuit has recognized that a reasonable officer
may have probable cause to believe that a speaker is disturbing a public meeting
when he “is determined to be out of order by the individual chairing the assembly.”
Leonard v. Robinson, 477 F.3d 347, 361 (6th Cir. 2007). Second, the officers
witnessed Bernard continue to loudly proclaim “you’re going to get sued, you’re
going to get sued” as he was being escorted into the hallway, and the officers were
on the receiving end of Bernard’s insistence that they keep their hands off of him
as they were forced to escort him from the meeting.

Given all of these

circumstances – Scott’s determination that Bernard was out of order for attempting
to read the personal file numbers and Bernard’s hostile reaction to the officers’

20

attempt to remove him – the officers could reasonably have concluded that
probable cause existed to arrest Bernard.
Bernard counters that he is not guilty of disturbing the peace or disturbing
the meeting – a conclusion that, he insists, is bolstered by the short video snippet
from the meeting that the parties provided to the Court. (See ECF #30.) But the
question with respect to the Officer Defendants’ qualified immunity defense is not
whether Bernard was guilty of disturbing the meeting; rather, the question is
whether the officers could reasonably have concluded that probable cause existed
to believe that Bernard had committed that crime. See, e.g., Regets v. City of
Plymouth, 568 Fed. App’x 380, 390 (6th Cir. 2014) (concluding defendant police
officers were “entitled to qualified immunity [on false arrest claim] because they
could have reasonably believed probable cause existed”). The answer to that
question is yes because the video depicts Bernard engaging in conduct that could
have led a reasonable officer to conclude that there was probable cause that
Bernard was disturbing the peace and/or the meeting.

Thus, the Officer

Defendants are entitled to qualified immunity with respect to Bernard’s false arrest
claim.

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3.

The Officer Defendants Are Entitled to Summary Judgment on
Bernard’s “Prosecution Without Probable Cause” Claim (Count
IV)

Bernard alleges in Count IV of his Complaint that the Officer Defendants
“knew that [he] had not disrupted or acted disorderly” at the Board meeting and
that the criminal charges against him therefore “constitut[ed] malicious
prosecution.” (Compl. at ¶¶ 43-44.) This claim fails for a lack of evidence.
To prevail on a 42 U.S.C. § 1983 malicious prosecution
claim premised on a violation of the Fourth Amendment,
a plaintiff must prove four things: (1) the defendant
made, influenced, or participated in the decision to
prosecute the plaintiff; (2) there was a lack of probable
cause for the prosecution; (3) as a consequence of the
prosecution, the plaintiff suffered a deprivation of liberty,
as understood in Fourth Amendment jurisprudence, apart
from the initial seizure; and (4) the criminal proceeding
was resolved in the plaintiff's favor.
Halasah v. City of Kirtland, Ohio, 574 Fed. App’x 624, 631 (6th Cir. 2014) (citing
Sykes v. Anderson, 625 F.3d 294, 308-309 (6th Cir. 2010)). The Sixth Circuit has
“long held that a police officer who did not make the decision to prosecute cannot
be held liable for malicious prosecution.” Id.
Here, Bernard has not come forward with any evidence that any of the
Officer Defendants made, influenced, or participated in the decision to prosecute
him, or that they interacted or consulted with the city prosecutor in any way related
to the charges brought against him.

See Skousen v. Brighton High School, 305

F.3d 520, 529 (6th Cir. 2002) (granting state trooper summary judgment on
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malicious prosecution claim where plaintiff “offered no evidence…supporting her
claim that [the trooper] caused her to be prosecuted” or that the trooper “had
anything to do with [her] prosecution…after he submitted his report to the
prosecutor's office”). Indeed, the entirety of Bernard’s argument supporting his
malicious prosecution claim is less than a single sentence, with no citation to any
evidence in the record:
In this case before the Court there was a criminal
prosecution commenced against Bernard for allegedly
disturbing the peace and the Defendants clearly
influenced the prosecutorial decision against him.
(Resp. Br. at 21-22, Pg. ID 344-345; emphasis added).

Such a conclusory

statement without any citation to the record is plainly insufficient to save Bernard’s
malicious prosecution claim. For these reasons, Bernard’s malicious prosecution
claim against the Officer Defendants fails.
4.

The Officer Defendants Are Entitled to Summary Judgment on
Bernard’s Claim for Conspiracy (Count V)

In Count V of his Complaint, Bernard alleges that the Officer Defendants
engaged in a conspiracy to “generat[e] a false [police] report” and “continu[e] [his]
prosecution on the basis of disrupting a public meeting after the original charge of
disorderly conduct was dismissed.” (Compl. at ¶¶ 46-47.) This claim fails for a
lack of evidence.

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Bernard has not presented the Court any evidence that the police report he
references in his Complaint actually contained any false statements.

Indeed,

Bernard failed to even attach the police report as an exhibit to response to the
Officer Defendants’ motion, and neither the report nor its contents are part of the
record before the Court. Nor has Bernard presented any evidence that the Officer
Defendants conspired to “continue” his prosecution after the original charge was
dismissed. As discussed in detail above, there is simply no evidence in the record
that the Officer Defendants played any role in the decision to prosecute Bernard at
any time.
The only evidence of a conspiracy that Bernard identifies is his own
testimony that the Officer Defendants supposedly told him in 2007 – two years
before the underlying incident here – that they were going to “get him.” (See
Bernard Dep. at 84-87, Pg. ID 433-436.) But this stray comment, made years
before Bernard was arrested, is not nearly enough to establish the existence of the
conspiracy that Bernard alleges.
CONCLUSION
For all of the reasons stated above, IT IS HEREBY ORDERED that
Defendants’ Motion for Summary Judgment (ECF #22) is GRANTED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: May 6, 2015
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on May 6, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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