O'Brien et al v. Mason, City of et al

Filing 37

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARCIA O'BRIEN and
RICHARD O'BRIEN,
Plaintiffs,
Case No. 1:16-CV-391
v.
HON. GORDON J. QUIST
CITY OF MASON and MARK
RECKLING, sued in his individual
capacity,
Defendants.
/
OPINION
This case arises out of the arrest of Plaintiff Marcia O’Brien. Plaintiff Richard O’Brien is
Marcia’s husband. Plaintiffs allege that the arresting officer, Defendant Mark Reckling, violated
their First and Fourth Amendment rights and that the City of Mason is liable for failure to properly
train Reckling and other officers. Defendants moved for summary judgment and asserted the
defense of qualified immunity. Oral argument was heard on June 20, 2017. For the following
reasons, the Court will grant Defendants’ motion.
FACTS
On August 29, 2015, at approximately 11:17 p.m., City of Mason Police Officers Mark
Reckling and Alex Thompson responded to a call regarding trespassing at the Quality Dairy in
Mason, Michigan. A music festival was either ongoing or had recently ended. Officer Joe
Fairbotham was already in the parking lot of the Quality Dairy and had made contact with Jaime
McKnight, an African American male, and several other individuals. Thompson parked his

vehicle about 25 feet away from Fairbotham and McKnight and went to assist Fairbotham in
handling the group. Reckling stayed with the vehicle.
The Plaintiffs walked by the Thompson-Fairbotham-McKnight group shortly after
Thompson and Reckling arrived. As they walked by, Richard said, “I see you have got the only
African American person in town tonight.” (ECF No. 30-8 at PageID.450.) The couple continued
walking and stopped at the corner of Maple and Parks street. Marcia then turned around and started
walking back towards the crowd. (ECF No. 30-2 at PageID.345.) Richard stayed at the corner of
Park and Maple. (Id.) Marcia stopped near Thompson’s police cruiser (roughly 20 feet from the
crowd), and Reckling approached her almost immediately. (Id.) Reckling told Marcia to leave.
After she refused to leave, Reckling told Richard that Marcia and Richard should go home. (Id.)
Reckling took Marcia by the arm in the “escort position” and turned her around to get her to walk
away. (ECF No. 30-4 at PageID.388.) Marcia spun free, telling Reckling that “he can’t grab her
like that.” (ECF No. 30-2 at PageID.345.)
After another verbal exchange, Reckling handcuffed and put Marcia into the back of the
police vehicle. Reckling wrote Marcia a citation for resisting and obstructing a city official:
Sec. 42-2. Resistance and obstruction of city officials prohibited.
(a) No person shall willfully obstruct, resist or oppose the performance of duties by
someone the person knows or reasonably should have known to be a city police or
any other authorized official of the city.
(b) As used in this section, "obstruct" includes the use or threatened use of physical
interference or force or knowing failure to comply with a lawful command
(Mason Ord., Part 2, Ch. 22, Art. II, Sec. 22-34.) It is undisputed that Richard stayed a distance
away from Marcia’s confrontation with Reckling.
The officers’ accounts of the interaction differ from Marcia and Richard’s only in
characterizing Marcia as having been “loud and boisterous” when she was speaking with Reckling.
During discovery, Marcia made a F.R.Civ.P. 36 admission that she had been loud and boisterous.
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(ECF No. 23-11 at PageID.196.) Marcia testified in her deposition that she was not yelling at
Reckling and that she did not make a commotion at the crime scene.

(ECF No. 30-2 at

PageID.346.) However, Marcia’s Rule 36 admission controls: “A matter admitted under [Rule 36]
is conclusively established unless the court, on motion, permits the admission to be withdrawn or
amended.” Fed. R. Civ. P. 36(b). “Further, such conclusive admissions ‘cannot be overcome at
the summary judgment stage by contradictory affidavit testimony or other evidence in the record.’”
Goodson v. Brennan, No. 16-5023, 2017 WL 1857270, at *3 (6th Cir. May 8, 2017) (quoting
Williams v. Wells Fargo Bank, N.A., 560 F. App’x. 233, 244 (5th Cir. 2014)).
Marcia later admitted responsibility for a civil infraction of noise violation and paid a $130
fine. The cited ordinance is § 22.34, which provides:
The following acts, among others, are declared to be loud, disturbing, injurious, and
unnecessary noises in violation of this article; but this enumeration shall not be
deemed to be exclusive:
.
(3) Yelling, shouting, etc. Yelling, shouting, hooting, whistling or singing on the
public streets, particularly between the hours of 10:00 p.m. and 7:00 a.m. or at any
time or place so as to annoy or disturb the quiet, comfort or repose of persons in
any office, or in any dwelling, hotel or other type of residence, or of any persons in
the vicinity.
(Mason Ord., Part 2, Ch. 22, Art. II, Sec. 22-34.)
CLAIMS AGAINST THE CITY
In Counts I and III, Plaintiffs allege that the City of Mason is liable under Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because
the City “has failed to train its officers in the proper procedure when citizens wish to observe the
police officer in the performance of their duties.” (ECF No. 30 at PageID.325.)
“The inadequacy of police training only serves as a basis for § 1983 liability ‘where the
failure to train amounts to deliberate indifference to the rights of persons with whom the police

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come into contact.’” Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) (quoting City of Canton
v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204 (1989)). “To establish deliberate indifference,
the plaintiff ‘must show prior instances of unconstitutional conduct demonstrating that the [City]
has ignored a history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury.’” Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 573 (6th
Cir. 2016) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)).
Qualified Immunity
Plaintiffs rely on a single instance in which the Michigan Court of Appeals found that
Reckling detained a person without reasonable suspicion in violation of the Fourth Amendment.
See People v. Reynolds, No. 310781, 2012 WL 6097341 (Mich. Ct. App. Dec. 6, 2012). But the
fact that “a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability
on the city, for the officer's shortcomings may have resulted from factors other than a faulty
training program.” City of Canton v. Harris, 489 U.S. 378, 390–91, 109 S. Ct. 1197, 1206 (1989)
(citing City of Springfield v. Kibbe, 480 U.S. 257, 268, 107 S. Ct. 1114, 1120 (1987)). Furthermore,
the arrest at issue in Reynolds did not implicate any First Amendment defense; Reckling suspected
the arrestee to have been responsible for graffiti. Reynolds, 2012 WL 6097341, at *2. Thus,
Plaintiffs fail to create a genuine issue of material fact on Monell liability.
CLAIMS AGAINST RECKLING
Counts I and IV allege that Plaintiffs were retaliated against for the exercise of First
Amendment rights. (ECF No. 1 at PageID.7, 9.) First Amendment retaliation claims have three
elements:

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(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.
Kennedy v. City of Villa Hills, 635 F.3d 210, 217 (6th Cir.2011) (footnote omitted) (quoting
Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc)).
Count II alleges malicious prosecution and Count III alleges false arrest and false
imprisonment, all in violation of the Fourth Amendment. To succeed on a malicious prosecution
claim, a plaintiff must prove:
(1) a criminal prosecution was initiated against the plaintiff, and the defendant
made, influenced, or participated in the decision to prosecute;
(2) there was a lack of probable cause for the criminal prosecution;
(3) the plaintiff suffered a deprivation of liberty, as understood under Fourth
Amendment jurisprudence, apart from the initial seizure; and
(4) the criminal proceeding was resolved in the plaintiff's favor.
Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017) (citing Sykes v. Anderson, 625 F.3d 294 (6th
Cir. 2010)). Similarly, “[a] plaintiff bringing a constitutional claim for false arrest under the Fourth
Amendment bears the burden to prove ‘that the arresting officer lacked probable cause to arrest
the plaintiff.’” Sinclair v. Lauderdale Cnty., 652 F. App'x 429, 433 (6th Cir. 2016) (quoting
Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005)).
Defendants argue that they are entitled to qualified immunity. A plaintiff’s claim survives
the defense of qualified immunity at summary judgment if (1) “the facts alleged make out a
violation of a constitutional right” and (2) “the right at issue was ‘clearly established’ when the
event occurred such that a reasonable officer would have known that his conduct violated it.”
Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing Pearson v.
Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009)). The Court can address these issues in
any order. Id.
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When conducting the first part of the qualified immunity analysis, “the Court considers
only the facts that were knowable to the defendant officers.” White v. Pauly, ____ U.S. ___, 137
S. Ct. 548, 550 (2017) (citing Kingsley v. Hendrickson, 576 U.S. ___, 135 S. Ct. 2466, 2474
(2015)). Because this is a motion for summary judgment, those facts are viewed in the light most
favorable to Plaintiffs. Id.
“[F]or a right to be clearly established, ‘existing precedent must have placed the statutory
or constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix v. Luna,
___ U.S. ___, 136 S. Ct. 305, 308 (2015)). “‘[C]learly established law’ may not be defined at []
‘a high level of generality.’” Arrington-Bey v. City of Bedford Heights, No. 16-3317, 2017 WL
2432389, at *3 (6th Cir. Feb. 24, 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct.
2074, 2084 (2011)). “The Supreme Court recently reminded us that a plaintiff must identify a case
with a similar fact pattern that would have given ‘fair and clear warning to officers’ about what
the law requires.” Id. (quoting White, 137 S. Ct. at 552).
Fourth Amendment Claims
Defendants argue that Reckling had probable cause to arrest and prosecute Marcia. In
Michigan, a police officer may make a warrantless arrest where “[a] felony, misdemeanor, or
ordinance violation is committed ... in the officer's presence.” M.C.L. § 764.15(a). “For probable
cause to arrest to exist, the ‘facts and circumstances within the officer's knowledge’ must be
‘sufficient to warrant a prudent person ... in believing ... that the suspect has committed, is
committing or is about to commit an offense.’” Stricker v. Twp. of Cambridge, 710 F.3d 350, 362
(6th Cir. 2013) (quoting Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003)). “[S]tate
law defines the offense for which an officer may arrest a person, while federal law dictates whether
probable cause existed for an arrest.” Kennedy, 635 F.3d at 215. The Sixth Circuit has, at times,

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held that “[d]etermining whether probable cause existed, ‘presents a jury question, unless there is
only one reasonable determination possible.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291,
302 (6th Cir. 2005) (quoting Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000)). At other
times, the Sixth Circuit treats probable cause as a question of law. See McKenna v. Edgell, 617
F.3d 432, 441 (6th Cir. 2010) (collecting inconsistent cases).
Marcia’s guilty plea to the noise violation bars the Fourth Amendment claim. “In
Michigan, it is ‘well established that a conviction, unless procured by fraud or unfair means, is
conclusive evidence of probable cause.’” Fox v. Michigan State Police Dep't, 173 F. App'x 372,
378 (6th Cir. 2006) (quoting Blase v. Appicelli, 195 Mich. App. 174, 178, 489 N.W.2d 129, 131
(1992)). Moreover, the parties stipulated that Marcia was “loud and boisterous” when interacting
with Reckling while the other officers were interacting with others who were only six to seven
steps away. (ECF No. 23-11 at PageID.196.) Marcia also refused to leave the scene when asked
to do so. This amounts to probable cause to arrest Marcia for obstruction and for the noise violation
ordinance, which prohibits “[y]elling, shouting, hooting, whistling or singing on the public streets,
particularly between the hours of 10:00 p.m. and 7:00 a.m.. or at any time or place so as to annoy
or disturb the quiet, comfort or repose of … any persons in the vicinity.”
First Amendment Claims 1
Marcia’s Claim
Marcia’s First Amendment claim fails because she has not cited a case clearly establishing
a First Amendment right to observe the police. A number of circuits have addressed the existence
of a First Amendment right to observe and record the police activity, and some have found that

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At oral argument, Plaintiff’s counsel relied on King v. Ambs, 519 F.3d 607 (6th Cir. 2008) for a number of
propositions. That case was not cited in Plaintiff’s briefs, and, in any event, does not support their arguments. The
court in King found the disruptive behavior at issue to be unprotected by the First Amendment, and that the defendant
officers were entitled to qualified immunity.

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right to be clearly-established. See, e.g., Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014); ACLU of
Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d 1332, 1333
(11th Cir. 2000). But the Sixth Circuit has yet to join those courts, and the only district courts in
the Sixth Circuit to address that issue have found otherwise. See Williams v. City of Paris, No. 5:
15-108-DCR, 2016 WL 2354230, at *4 (E.D. Ky. May 4, 2016); Crawford v. Geiger, 131 F. Supp.
3d 703, 715 (N.D. Ohio 2015), aff'd in part, rev’d in part and remanded, 656 F. App’x 190 (6th
Cir. 2016); see also Fields v. City of Philadelphia, 166 F. Supp. 3d 528 (E.D. Pa. 2016).
Richard’s Claim
Count IV alleges, “Defendant Reckling arrested and confined Mrs. O’Brien in retaliation
of her husband’s comment and not for any lawful reason.” (ECF No. 1 at PageID.10.) Defendants
moved for summary judgment because Richard provides no evidence that any Defendant actually
took an adverse action against him. (ECF No. 23 at PageID.102-03.) Richard relies on Thompson
v. North American Stainless, LP, 562 U.S. 170, 131 S. Ct. 863 (2011). There, the Supreme Court
thought “it obvious that a reasonable worker might be dissuaded from engaging in protected
activity if she knew that her fiancé would be fired” in retaliation for that activity. Id. at 174, 131
S. Ct. at 868. This case is not relevant because the Defendants’ confrontation with Marcia was not
an ongoing matter that would affect Richard in the slightest.
Assuming for the sake of argument that Thompson’s logic applies in the § 1983 context,
Reckling is still entitled to qualified immunity. “If a defendant can show that he would have taken
the same action in the absence of the protected activity, he is entitled to prevail on summary
judgment.” Garcia v. Thorne, 520 F. App’x 304, 310 (6th Cir. 2013) (citing Thaddeus–X, 175
F.3d at 399. Here, Reckling had probable cause to arrest Marcia, and arrested her only after she

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approached the group a second time and engaged in loud and boisterous conduct while the police
officers, going about their duties, were engaged with Mr. McKnight.
CONCLUSION
For the foregoing reason, the Court will grant Defendants’ motion for summary judgment
in its entirety.
An order consistent with this Opinion will enter.

Dated: June 29, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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