Harcz, Jr. et al v. Boucher et al

Filing 47

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

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

PAUL JOSEPH HARCZ, JR., et al.,
Plaintiffs,
v.

Case No. 1:17-CV-112

BRODY BOUCHER, et al.,

HON. GORDON J. QUIST

Defendants.
/
OPINION
Plaintiffs, a group of seven individuals, most of whom are disabled, wanted to attend an
event celebrating the anniversary of the passage of the Americans with Disabilities Act (ADA) at
the Michigan State Capitol Building in Lansing. Plaintiffs, however, were not pleased with certain
aspects of the celebration—particularly that one event sponsor paid disabled employees less than
the minimum wage and that the Michigan State Capitol was not ADA-compliant. Therefore,
Plaintiffs sought “to protest, and to hand out leaflets communicating their opinions.” (ECF No. 1
at PageID.20.) Event organizers, aware of Plaintiffs’ plans and concerned that Plaintiffs would
disrupt the event, notified the Michigan State Police (MSP), who agreed that no suspected protestor
would be admitted.

The MSP personnel delivered on their assurances and physically barred

Plaintiffs from entering the event. In addition, they arrested Plaintiff Paul Harcz.
Plaintiffs have sued the event organizers, Michigan Association of Centers for Independent
Living (MACIL) and Handicapper Advocacy Alliance, Inc. (HAAI), various MSP officers, and
the Facilities Director for the Michigan State Capitol (State Defendants), pursuant to 42 U.S.C. §
1983.

Plaintiffs allege violations of their free speech and assembly rights under the First

Amendment and their right to equal protection under the Fourteenth Amendment. In addition,
Plaintiff Harcz alleges claims of false arrest and imprisonment and malicious prosecution under
both the Fourth Amendment and state law.
All Defendants have moved for dismissal and/or summary judgment. MACIL has filed a
motion to dismiss; the State Defendants have filed a motion to dismiss, or in the alternative, for
summary judgment; and HAAI has filed a motion for summary judgment. The motions are fully
briefed, and the Court heard oral argument on November 2, 2017.
The Court will grant all Defendants’ motions and dismiss Plaintiffs’ complaint.
I.

Background

In the autumn of 2014, interested parties began to plan an event to celebrate the 25th
anniversary of the ADA, to be held the following autumn on the grounds of the Michigan State
Capitol, a public forum. The event was advertised as “free and open to the public.” (ECF No. 1
at PageID.7.) The Michigan State Capitol Committee issued a permit to Ellen Weaver to conduct
the event on September 17, 2015, on the East Lawn, North and South side, and the East steps and
walks of the Capitol Grounds. (Id.; ECF No. 37-6.) Plaintiff Harcz was involved in planning the
event. He and other Plaintiffs had expressed concern that a private sponsor of the event paid
disabled employees less than minimum wage and that the Capitol itself was not ADA-compliant.
(ECF No. 1 at 8.) Plaintiffs expressed these concerns to Sara Grivetti, who represented MACIL
and was the chief organizer of the event. Grivetti subsequently alerted others that there could be
protests at the event. (Id.)
Plaintiffs allege that Ellen Weaver represented HAAI in planning the event and expressed
concern to an MSP officer about protestors who might arrive on a Road to Freedom bus. Plaintiffs
allege that Grivetti and Weaver each made calls to the State Defendants expressing concern about

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protestors and that on the day of the event, “Grivetti and Weaver told Sgt. Held that they did not
want protestors to disrupt the event.” (Id. at PageID.10.) Sgt. Held assured them that the MSP
would exclude any suspected protestor from the event. (Id.) Plaintiffs, most of whom are disabled,
allege that they simply wanted to attend the event to “pass out leaflets, have conversations with
others at the event, and participate in a peaceful, open dialogue about issues facing people with
disabilities.” (Id. at PageID.2.)
On the day of the event, some Plaintiffs gathered at a nearby corner, carrying a banner for
the National Federation of the Blind, signs with messages, and leaflets they intended to distribute.
Sgt. Held approached and told the group that they could not go beyond the Austin Blair statue,
which is located on the Capitol Grounds and within the permitted event area, because the event
was private and the organizers did not want a disturbance. (Id. at PageID.11.) The situation came
to a head as the group attempted to approach the event and were barred by the MSP officers.
Plaintiffs told the officers that they were invited to, and wanted to, attend the event, but that the
officers prevented Plaintiffs from entering both by physically blocking passage and, subsequently,
placing metal barricades in front of Plaintiffs. (Id. at PageID.13.)
Plaintiff Harcz eventually attempted to get around the barricades. Harcz, who is legally
blind, claimed he used his cane and hands to feel his way around and past the barricade. The State
Defendants claim that Harcz “became physical, charged the barrier, and resisted and obstructed a
police officer.” (Id. at PageID.14–15; ECF No. 43 at PageID.583.) Harcz claims that “[a]t no
point” did he use his cane or body as a weapon or “assault, batter, wound, resist, obstruct, oppose,
or endanger the officers.” (ECF No. 1 at PageID.15.) Harcz was subsequently arrested, held in
the State Capitol building for the duration of the event, and ultimately charged with a felony which
alleged that Harcz “did assault, batter, wound, resist, obstruct, oppose, or endanger” the officers

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and “knew or had reason to know [they] were performing [their] duties.” (Id. at PageID.16.) Harcz
alleges that four of the officers filed false police reports and that videos show the reports were
inaccurate. (Id. at PageID.16-17.)
Defendant Sgt. Henriquez testified at a preliminary examination in Harcz’s state criminal
case, and his testimony was consistent with the State Defendants’ claims in their motion. The state
judge found probable cause that Harcz obstructed the officers by failing to comply, but Harcz
argues that there was a lack of evidence and that the judge’s determination was “[in error] and
based on false and misleading evidence.” (Id. at PageID.19.) Harcz further alleges that there was
no crime because the police officers’ commands, themselves, were unlawful, and it is not a crime
to disobey unlawful orders. Ultimately, the charges against Harcz were dropped before trial. (Id.
at PageID.19.)
II.

Motion Standard

Defendants’ motions invoke different standards. MACIL has filed a motion to dismiss
pursuant to Rule 12(b)(6), HAAI has filed a motion for summary judgment pursuant to Rule 56,
and the State Defendants have filed a motion to dismiss, or in the alternative, for summary
judgment. Because the Court considers only the pleadings and materials permitted on a motion to
dismiss, the Court confines its analysis of all motions to the Rule 12(b)(6) standard. See Frisch v.
Nationwide Mut. Ins. Co., 553 F. App’x 477, 481 (6th Cir. 2014) (“In ruling on a motion to dismiss,
this Court may consider [only] the [c]omplaint and any exhibits attached thereto, public records,
items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so
long as they are referred to in the [c]omplaint and are central to the claims contained therein.”
(internal quotation marks omitted) (alterations in original)).

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In deciding a motion to dismiss, the Court must determine whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face” when deciding whether to
dismiss a case under Fed. R. Civ. P. 12(b)(6). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 1974 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Although the
plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556,
127 S. Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the
pleader is entitled to relief.” Id. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
III.

Discussion

A. The Private Defendants, MACIL and HAAI
A claim under 42 U.S.C. § 1983 “‘must satisfy two elements: 1) the deprivation of a right
secured by the Constitution or laws of the United States and 2) the deprivation was caused by a
person acting under color of state law.’” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)
(quoting Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995)). Therefore, a plaintiff cannot
typically bring a § 1983 case against a private party. Id.
There are three primary tests to determine whether a private party acts under color of state
law. None of them is alleged by Plaintiffs. Id. at 591. Rather, Plaintiffs argue that MACIL and
HAAI are liable via an exception to the three tests which applies when there is a conspiracy
between the private party and a state actor. Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir.
2000) (“If a private party has conspired with state officials to violate constitutional rights, then that

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party qualifies as a state actor and may be held liable pursuant to § 1983.”). There need not be an
express agreement, and the alleged conspirators need not know the details of the plan: “[a]ll that
must be shown is that there was a single plan, that the alleged coconspirator shared in the general
conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.” Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985); see also
Memphis, Tenn. Area Local Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 905–06
(6th Cir. 2004). Specifically, Plaintiffs argue that MACIL and HAAI, through their alleged
representatives, Sarah Grivetti and Ellen Weaver, respectively, conspiratorially planned to exclude
Plaintiffs from the event, and that the police did exclude them in furtherance of the conspiracy,
causing injury.
In this Court’s judgment, the exception would swallow the rule under Plaintiffs’ rationale.
Speaking with police officers about a possible concern is not a “meeting of the minds” sufficient
to establish a conspiracy. See Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008)
(quoting Adickes v. S.H. Kress & Co., 389 U.S. 144, 158, 90 S. Ct. 1598, 1609 (1970)). There
must have been an agreement with a shared objective. Memphis, 361 F.3d at 905–06. Plaintiffs
merely allege that Grivetti and Weaver spoke with, and alerted the police that there may be
protestors at the event and that they did not want their event to be disrupted.
An event host, acting with a permit, has “the first Amendment right[] . . . to effectively
convey the message of its event.” Startzell, 533 F.3d at 198. As well, the government “has an
interest in ensuring that a permit-holder can use the permit for the purpose for which it was
obtained.” Id. Accordingly, the ADA event organizers appropriately expressed their concern to
the police that their right to speak could be at risk from disruptive protestors. Plaintiffs’ allegations
fail to show that the organizers’ conversations with the MSP officers constituted a meeting of the

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minds as to approaches, if any, the police should take. To hold otherwise could create a chilling
effect and scare private citizens from reaching out to police with their concerns.
In sum, Plaintiffs failed to allege a sufficient factual basis to establish that MACIL and
HAAI conspired with the police to exclude Plaintiffs from the ADA event. Therefore, Plaintiffs
cannot sue private actors MACIL and HAAI pursuant to § 1983.
Accordingly, Plaintiffs’ claims against Defendants MACIL and HAAI will be dismissed.
B. First and Fourteenth Amendment Claims—Qualified Immunity
The State Defendants assert that they are entitled to qualified immunity on Plaintiffs’ free
speech and equal protection claims. “Under the doctrine of qualified immunity, ‘government
officials performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Phillips v. Roane Cnty., 534 F.3d 531, 538
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). Once a
defendant raises the qualified immunity defense, the burden shifts to the plaintiff to demonstrate
that the defendant officer violated a right so clearly established “that every ‘reasonable official
would have understood that what he [was] doing violate[d] that right.’” Ashcroft v. al-Kidd, 563
U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640,
107 S. Ct. 3034, 3039 (1987)). The analysis entails a two-step inquiry. Martin v. City of
Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). First, the court must “determine if the facts
alleged make out a violation of a constitutional right.” Id. (citing Pearson v. Callahan, 555 U.S.
223, 232, 129 S. Ct. 808, 815–16 (1982). Second, the court asks if the right at issue was “‘clearly
established’ when the event occurred such that a reasonable officer would have known that his
conduct violated it.” Id. (citing Pearson, 555 U.S. at 232, 129 S. Ct. at 816). A court may address

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these steps in any order. Id. (citing Pearson, 555 U.S. at 236, 129 S. Ct. at 818. Thus, an officer
is entitled to qualified immunity if either step of the analysis is not satisfied. See Citizens in
Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016).
In order for a right to be clearly established, it must be established “in a ‘particularized’
sense so that the ‘contours’ of the right are clear to a reasonable official.” Reichle v. Howards,
566 U.S. 658, 665, 132 S. Ct. 2088, 2094 (2012) (quoting Anderson v. Creighton, 483 U.S. 635,
640, 107 S. Ct. 3034, 3039 (1987)). “[T]he clearly established law must be ‘particularized’ to the
facts of the case,” and “in the light of pre-existing law the unlawfulness must be apparent.” White
v. Pauly, -- U.S. --, 137 S. Ct. 548, 552 (2017) (quoting Anderson, 483 U.S. at 540, 107 S. Ct. at
3049). In order for a reasonable official to understand that he or she could violate a clearly
established right, the courts “do not require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741,
131 S. Ct. at 2083.
“[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.” Arrington-Bey v. City of Bedford
Heights, 858 F.3d 988, 993 (6th Cir. 2017) (quoting White, 137 S. Ct. at 551). In Arrington-Bey,
the court noted that the Supreme Court has “reminded us” that existing precedent must clearly
establish the unlawfulness of the particular conduct, and a high level of generality will not do. Id.
at 992–93. This Court is particularly cognizant of these exacting standards. In a fairly recent case
involving the issue of whether police participation in a private individual’s seizure of a vehicle
constituted state action, this Court held that the defendant officers were not entitled to qualified
immunity because the Sixth Circuit’s prior case law clearly established that the officers’ conduct
was unlawful. On appeal, a unanimous Sixth Circuit panel affirmed. Middaugh v. City of Three

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Rivers, 629 F. App’x 710 (6th Cir. 2015). Subsequently, the Supreme Court vacated the judgment
and remanded to the Sixth Circuit for further consideration in light of Mullenix v. Luna, __ U.S.
__, 136 S. Ct. 305 (2015) (per curiam). Piper v. Middaugh, 136 S. Ct. 2408 (2016). On remand,
the same panel concluded that the law was not clearly established because there was “sufficient
daylight between the Officers’ conduct . . . and the conduct in [the prior Sixth Circuit cases]” such
that they did not “‘apply with obvious clarity to [this] specific conduct.’” Middaugh v. City of
Three Rivers, 684 F. App’x 522, 530 (6th Cir. 2017) (quoting Hope v. Pelzer, 536 U.S. 730, 741,
122 S. Ct. 2508, 2516 (2002) (alteration in original)).
As explained more fully below, the Court’s qualified immunity analysis begins, and ends,
with the second step because the law, particularly in the Sixth Circuit, was not so clearly
established that the State Defendants had fair notice that their actions were unlawful.
The First Amendment “offers sweeping protection that allows all manner of speech to enter
the marketplace of ideas.” Bible Believers v. Wayne Cnty, 805 F.3d 228, 243 (6th Cir. 2015). “It
is also common ground, however, that the First Amendment does not guarantee the right to
communicate one’s views at all times and places or in any manner that may be desired.” Heffron
v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 2564 (1981).
To determine whether a plaintiff’s First Amendment free speech rights have been violated, courts
apply a three-step analysis. First, the court determines whether the conduct in question is protected
speech. Second, the court identifies the nature of the forum, i.e., whether it is public or nonpublic.
Third, the court asks “whether the justifications for exclusion from the relevant forum satisfy the
requisite standard.” Saieg v. City of Dearborn, 641 F.3d 727, 734–35 (6th Cir. 2011) (quoting
Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439, 3446
(1985)).

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There is no dispute that Plaintiffs’ speech concerning ADA issues is protected by the First
Amendment or that the Capitol grounds is a public forum. See ACT-UP v. Walp, 755 F. Supp.
1281, 1287 (M.D. Pa. 1991) (“In general, the grounds and buildings of state and federal capitol
complexes and similar buildings have consistently been held to be public fora.”) (citing cases).
Thus, any restriction on speech must have been either a reasonable time, place, and manner
regulation or “narrowly drawn to accomplish a compelling governmental interest.” Saieg, 641
F.3d at 734 (quoting United States v. Grace, 461 U.S. 171, 177, 103 S. Ct. 1702, 1707 (1983)). A
time, place, and manner restriction must be content neutral, narrowly tailored to serve a significant
government interest, and leave open ample alternatives of communication. Id. at 735.
The restriction at issue here is the MSP officers’ decision to prevent Plaintiffs from
accessing the event beyond the Austin Blair statue. 1 Although Plaintiffs argue that the MSP
officers targeted Plaintiffs solely because of their speech, Plaintiffs’ own allegations belie this
assertion. That is, Plaintiffs allege that Weaver and Grivetti told Defendants Boucher, Held, and
Henriquez that protestors were planning to attend the event and they were concerned that the
protestors would disrupt the event. (ECF No. 1 at PageID.9–10.) Plaintiffs further allege that
Defendant Held told Plaintiffs that they would not be allowed past the Austin Blair statue because
the event organizers did not want a disturbance. (Id. at PageID.11.) As Plaintiffs describe it, the
MSP officers limited Plaintiffs’ access in order to prevent a disturbance, not because they
disagreed with the content of Plaintiffs’ speech. Plaintiffs admit that they were permitted to remain
on the Capitol Grounds and that they were not precluded from expressing themselves from the
Austin Blair statue—within the designated event area. Thus, the only viable inference arising from
Plaintiffs’ factual allegations is that the MSP officers limited Plaintiffs’ access in order to prevent

1

A police officer’s orders and commands affecting speech are reviewed under the same rubric as written ordinances
or regulations. See Pouillon v. City of Owosso, 206 F.3d 711, 713, 717–18 (6th Cir. 2000).

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them from disturbing the event, not because they disagreed with the content of Plaintiffs’ speech.
See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754 (1989) (“The
government’s purpose is the controlling consideration. A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an incidental effect on some speakers
or messages but not others.”) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48, 106
S. Ct. 925, 929–30 (1986)); see also Marcavage v. City of Philadelphia, 481 F. App’x 742, 746
(3d Cir. 2012) (“While the officers did necessarily consider the content of Marcavage’s speech
when deciding to impose restrictions on him that would separate his counter-protest from event
participants, this does not make the restrictions content-based.”).
As for the validity of the restriction, Plaintiffs fail to cite any case from the Supreme Court
or the Sixth Circuit addressing the issue: whether police officers may take preemptive action to
ensure a permit-holder’s right to convey its message at its own event without disruption from
protestors, even though the protestors have not yet disturbed the event and may never do so. Are
police officers allowed to intervene in order to preserve the peace and prevent disruption of a
permitted event? Can the police act on the event organizer’s stated fear that there may be a
disturbance? Maybe not because such preemptive action may be instigated despite the unknown
fact of whether there was a true threat of a disturbance. Or, in order to be safe from a § 1983 claim,
do the police officers have to wait in order to be absolutely sure that a disturbance of a permitted
meeting may occur? Maybe not because having to break up a disturbance after it has started risks
injury to the police as well as attendees at the permitted event. Who do the police believe regarding
the threat of a disturbance, and what do they do about it—act or wait? And if there is a disturbance
and injuries after the warning by event organizers, do the officers risk liability to those in

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attendance for not having protected their right to free speech and personal safety? This is a
“Damned if you do, and damned if you don’t” scenario.
The cases Plaintiffs cite address different issues. For example, Saieg v. City of Dearborn,
641 F.3d 727 (6th Cir. 2011), dealt with a restriction permitting leafletting only from a booth at a
festival covering an eight-block area. Id. at 730–32. The court had no reason to address the
competing First Amendment interests of the permit-holder and others seeking to convey a message
within the permitted area. Similarly, Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2013),
concerned the validity of a rule prohibiting solicitation other than from a booth at a fair held in a
park. Id. at 818. Bays did not consider a permit-holder’s First Amendment right to convey its
message in an effective manner. Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015),
decided by the Sixth Circuit after the events in the instant case occurred, involved the same festival
at issue in Saieg, but considered the application of the “heckler’s veto” doctrine, which typically
comes into play when the police silence a speaker in response to an angry, hostile crowd that
disagrees with the speaker’s message. Id. at 234. The instant case does not involve a “heckler’s
veto.”
Parks v. Finan, 385 F.3d 694 (6th Cir. 2004), and Parks v. City of Columbus, 395 F.3d 643
(6th Cir. 2005), two cases brought by the same plaintiff, involved circumstances more similar to
those in the instant case, but still are not similar enough to have afforded Defendants fair warning
that their conduct was unlawful. In Parks v. Finan, Parks sought to preach and distribute religious
material on the Ohio State Capitol grounds on two separate occasions. Both times, state police
officers told Parks that he would have to leave the grounds because he did not have a permit as
required by state regulations. 385 F.3d at 696–97. On the first occasion, another group that had
obtained a permit was conducting a rally on the grounds, but there was no indication that Parks

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disturbed the group’s event, the group did not complain about Parks, and the group’s permit did
not give it the exclusive right to use any portion of the grounds. Id. at 696. The presence of a
permit-holder played no part in the court’s analysis: “There is no indication in the record that
Parks disrupted POET’s [the group] rally or that the POET organizers felt that Parks’s presence
imposed upon the protest.”

2

Id. at 705. In Parks v. City of Columbus, Parks attended an arts

festival wearing a sign bearing a religious message. The arts festival was open to the public and
was held pursuant to a non-exclusive permit issued by the city. 395 F.3d at 645–46. As Parks was
distributing religious literature within the permitted area, a police officer told Parks that the event
sponsor did not want Parks at the event, and instructed Parks to move beyond the barricade. Id. at
646. The Sixth Circuit concluded that the officer’s exclusion of Parks violated Parks’s First
Amendment rights. In particular, the court noted that “Parks’s speech was not interfering with the
permit holder’s message,” and the city failed to show why the permit-holder wanted Parks removed
or that the permit-holder had a policy against distribution of literature during the event. Id. at 652,
654. Parks v. City of Columbus would control in this case if the MSP officers had acted at their
own behest. But this is not what Plaintiffs allege. Plaintiffs allege that the MSP officers acted
because the event organizers—who were aware that Plaintiffs were upset with certain aspects of
the event—were concerned that Plaintiffs would disrupt it. Thus, no Sixth Circuit case gave the
State Defendants “fair warning.” Baynes v. Cleland, 799 F.3d 600, 612–13.

2

The defendants in Parks v. Finan argued that the Sixth Circuit’s decision in Sistrunk v. City of Strongsville, 99 F.3d
194 (6th Cir. 1996), was controlling. In Sistrunk, the defendant city issued a permit for a Bush-Quayle ’92 campaign
rally. The permit gave the organization and its members and invitees exclusive use of the premises for a limited time,
and provided that the committee was authorized to restrict use of the premises by invitation. Members of the public
were invited to attend, but were required to obtain admission tickets. Id. at 196. Citing Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338 (1995), the court analogized the political rally to
a parade that sought to convey a message as a cohesive unit. Id. at 198–99. The court in Parks distinguished Sistrunk
because no organization had been granted an exclusive permit to use the grounds for a limited period, and, in contrast
to Sistrunk, police officers, rather than an exclusive permit-holder, determined the messages that should be excluded.
Id. at 704–05. In the instant case, Defendants do not argue that the ADA event, which was open to the public, was
akin to a parade or a political rally held to convey a collective message such that Sistrunk would apply.

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Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008) is perhaps closest on the facts.
In Startzell, the City of Philadelphia issued a permit to a group called Philly Pride to hold a gay
pride festival known as OutFest. The festival was held in an area bordered by several streets and
included “stages and dance areas, sport and amusement areas, a flea market, and paying vendors
from various organizations,” all of which was free and open to the public. Id. at 189. Members
of an organization known as Repent America and led by Michael Marcavage sought to attend
OutFest to convey their message that homosexuality is sinful. Prior to the festival, the city rejected
Philly Pride’s request to exclude Marcavage’s group from the event area because the event was an
open street event. Id. at 189–90. After entering the event, the protestors stood near the main stage,
where they began to make noise. When the program began, the police instructed the protestors to
move farther up the block, and the protestors complied. Shortly thereafter, the police again told
the protestors to move because they were blocking access to vendor booths. The protestors refused
to move and were arrested. Id. at 191.
On appeal from summary judgment in favor of the city, the Third Circuit began its analysis
by clarifying that it was not holding that Philly Pride “had a correlative right to exclude from the
OutFest those who h[e]ld contrary, indeed antagonistic, viewpoints,” simply because the city had
granted Philly Pride a permit. Id. at 193. Citing Parks v. City of Columbus, the court observed
that “OutFest took place in the streets and sidewalks of Philadelphia, an undisputed quintessential
public forum,” and “[t]he issuance of a permit to use this public forum does not transform its status
as a public forum.” Id. at 196. However, the court also recognized that police officers are not
without authority to enforce valid permits: “The principle of content neutrality does not divest
police officers of the ability to enforce valid permits and to ensure that permitted speech is allowed
to take place.” Id. at 198. Thus, the court explained, although Marcavage and his group had a

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First Amendment right to convey their message in a public forum, their rights were not superior to
those of the permit-holder:
The right of free speech does not encompass the right to cause disruption,
and that is particularly true when those claiming protection of the First Amendment
cause actual disruption of an event covered by a permit. The City has an interest in
ensuring that a permit-holder can use the permit for the purpose for which it was
obtained. This interest necessarily includes the right of police officers to prevent
counter-protestors from disrupting or interfering with the message of the permit–
holder. Thus, when protestors move from distributing literature and wearing signs
to disruption of the permitted activities, the existence of a permit tilts the balance
in favor of the permit-holders.
Id at 198–99.
Although Startzell suggests that, when a permitted event held in a public forum is open to
the public, police officers cannot limit or deny protestors access to the event space unless actual
disruption occurs, a subsequent unreported case from the Third Circuit indicates that Startzell
should not be read as establishing an absolute rule allowing inclusion. In Marcavage v. City of
Philadelphia, 481 F. App’x 742 (3d Cir. 2012), Marcavage again sued the City of Philadelphia for
violating his rights to convey his message condemning homosexuality at four separate events.
Marcavage claimed that the city violated his rights when police officers moved his group away
from event participants outside of the boundaries of the permitted areas in order to keep the peace
and avoid physical confrontations. Id. at 744–45. Marcavage sought to distinguish Startzell on
several grounds, including that he was not being disruptive. The court said that even if Marcavage
was not being as disruptive as he had been in Startzell, the amount of disruption was “merely a
difference of degree,” but, it added, “[i]n any event, police officers are not required to wait for
actual disorder before imposing minimal restrictions.” Id. at 748 (citing ACORN v. St. Louis Cnty.,
930 F.2d 591, 596 (8th Cir. 1991) (“[t]he government need not wait for accidents to justify safety

15

regulations.”)). Thus, Marcavage suggests, albeit in dicta, that police officers need not wait for a
disruption before imposing some restrictions on speech.
One other consideration is worth noting with regard to whether the law was clearly
established on the instant facts. The Supreme Court has observed that “consideration of a forum’s
special attributes is relevant to the constitutionality of a regulation since the significance of the
governmental interest must be assessed in light of the characteristic nature and function of the
particular forum involved.” Heffron, 452 U.S. at 650–51, 101 S. Ct. at 2565. The Court explained:
[I]t is clear that there are significant differences between a street and the
fairgrounds. A street is continually open, often uncongested, and constitutes not
only a necessary conduit in the daily affairs of a locality’s citizens, but also a place
where people may enjoy the open air or the company of friends and neighbors in a
relaxed environment. The Minnesota Fair, as described above, is a temporary event
attracting great numbers of visitors who come to the event for a short period to see
and experience the host of exhibits and attractions at the Fair. The flow of the
crowd and demands of safety are more pressing in the context of the Fair. As such,
any comparisons to public streets are necessarily inexact.
Id. at 651, 101 S. Ct. at 2566.
Most of the cases discussed above—Saieg, Bays, Bible Believers, Parks v. City of
Columbus, and Startzell—involved festivals and celebrations that took place in the open streets
and on park grounds and, thus, were able to accommodate many speakers communicating different
messages. In contrast, the East half of the Michigan Capitol Grounds, the area covered by the
permit where the temporary ADA event was held, is a much more compact venue, leaving less
space for discordant speakers without a likely disruption of the event and few alternatives for
accommodating such speakers, such as telling them to move up the block, as in Startzell. 3 The
foregoing cases did not address venues with similar attributes and under similar circumstances,

3

One of the persons blocked from joining the main crowd at the ADA event was carrying a bullhorn.

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and thus, would not have made clear to the MSP officers that they were violating Plaintiffs’ rights
by limiting their access to the event.
Plaintiffs’ equal protection claim is subject to dismissal for similar reasons. The Equal
Protection Clause of the Fourteenth Amendment is “essentially a direction that all persons
similarly situated be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439, 105 S. Ct. 3249, 3254 (1985). To establish an equal protection claim, “a plaintiff must
adequately plead that the government treated the plaintiff disparately as compared to similarly
situated persons and that such disparate treatment either burdens a fundamental right, targets a
suspect class, or has no rational basis.” Ctr. For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d
365, 379 (6th Cir. 2011) (internal quotation marks omitted). In Count II, Plaintiffs allege that the
State Defendants’ speech restrictions “prevented plaintiffs from expressing a message based on its
content and viewpoint, thereby denying the use of a forum to those whose views defendants found
unacceptable.” (ECF No. 1 at PageID.21.) When, as here, a plaintiff’s equal protection claim
mirrors a First Amendment claim, the claims rise and fall together. See Vukadinovich v. Bartels,
853 F.2d 1387, 1391–92 (7th Cir. 1988); World Outreach Conference Ctr. v. City of Chicago, 234
F. Supp. 3d 904, 914 (N.D. Ill. 2017) (noting that the plaintiff’s First Amendment and equal
protection claim “merely present[ed] different legal theories in support of the same relief based on
the same conduct”). In any event, for the reasons set forth above, the Court concludes that the law
was not clearly established such that a reasonable officer in the State Defendants’ position would
have known that his actions were objectively unreasonable. See Scott v. Clay Cnty., 205 F.3d 867,
877 (6th Cir. 2000).
In sum, the Court emphasizes that it has not made a determination of the merits of
Plaintiffs’ First Amendment and equal protection claims, but instead disposes of the State

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Defendants’ qualified immunity argument on the “clearly established” prong. And, because the
Court finds “sufficient daylight” between the circumstances in the instant case and those in the
cases discussed above, such that they did not provide obvious clarity to the State Defendants
regarding the lawfulness of their actions, qualified immunity is appropriate. Middaugh, 684 F.
App’x at 530.
C.

Plaintiff Harcz’s Individual Claims
Plaintiff Harcz has alleged both federal and state law claims against certain police officers

based on his arrest and subsequent prosecution. He alleges false arrest, false imprisonment, and
malicious prosecution. An arrest without probable cause is an unreasonable seizure in violation
of the Fourth Amendment. Ingram v. City of Columbus, 185 F.3d 579, 592–93 (6th Cir. 1999).
“To determine whether an officer had probable cause to arrest an individual, we examine the events
leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to probable cause.” Maryland v. Pringle, 540
U.S. 366, 371, 124 S. Ct. 795, 800 (2003) (internal quotation marks omitted). Analyzing probable
cause must be done “from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (citations omitted)
(internal quotation marks omitted). Lack of probable cause is a required element in a malicious
prosecution claim.

Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010). Malicious

prosecution claims can be brought against police officers if a plaintiff alleges that a misleading
police report influenced the state court’s determination of probable cause for arrest and
prosecution. See Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001); Adams v. Metiva,
31 F.3d 375, 388 (6th Cir. 1994).

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Defendants argue that Plaintiff Harcz is collaterally estopped from challenging probable
cause because the preliminary hearing for the state criminal charge against him resulted in a finding
of probable cause. See Darrah, 255 F.3d at 310–11 (citing Coogan v. City of Wixom, 820 F.2d
170, 175 (6th Cir. 1987) (“where the state affords an opportunity for an accused to contest probable
cause at a preliminary hearing and the accused does so, a finding of probable cause by the
examining magistrate or state judge should foreclose relitigation of that finding in a subsequent §
1983 action”)).
“[W]e must apply the state law of collateral estoppel when deciding whether the state
court’s determination of probable cause at the preliminary hearing has preclusive effect in [a] §
1983 action.” Id. at 311 (citing Haring v. Prosise, 462 U.S. 306, 313, 103 S. Ct. 2368, 2373
(1983)). Michigan law applies issue preclusion when 1) the parties are identical between the two
cases; 2) the earlier proceeding resulted in a valid, final judgment; 3) the same issue was actually
litigated and determined in the earlier proceeding; 4) the party against whom collateral estoppel is
asserted had a full and fair opportunity to litigate the issue in the earlier proceeding. Id. (citing
People v. Gates, 434 Mich. 146, 156–57, 452 N.W.2d 627, 630–31 (1990)).
The issue presented here is different. Harcz alleges that the officers made false statements
to the state judge and in their police reports; he does not dispute that the state court found probable
cause. Id. Therefore, collateral estoppel does not apply. “However, if this court finds that there
was probable cause to prosecute [a plaintiff], regardless of any alleged false statements made by
[an officer], then [plaintiff] cannot make out a malicious prosecution claim under the Fourth
Amendment.” Id. at 312.

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The video evidence does not clearly show Harcz trying to hit anyone, 4 but it does show
Harcz feeling around the barricades and asking a fellow protestor whether he was filming before
Harcz declared, “Fuck it, I’m going through.” Harcz felt around the barricade and attempted to
walk through. Whether he was aggressively pushing against the police officers, or the officers
initiated the physical contact by aggressively pulling him through and handcuffing him, is not
readily apparent in the videos. What is readily apparent in the videos is that Harcz was angry and
prepared to resist the officers and their orders to stay behind the barricade.
Harcz argues that it is lawful for a citizen to disobey unlawful orders. That does not mean
that a person who disagrees with a police officer is free to assault or batter that officer in the
process. When viewing these facts from the perspective of a reasonable officer on the scene, rather
than with the benefit of 20/20 hindsight, Harcz’s actions provided adequate grounds to establish
probable cause for the police officers to arrest him. Harcz’s yelling, aggressive use of his walking
cane, clearly-expressed intent to push through, and attempting to push through the officers
provided adequate grounds to arrest, detain, and initiate a prosecution against him.
Accordingly, Harcz’s individual claims will be dismissed.
IV.

Conclusion

For the foregoing reasons, the Court will grant Defendants’ motions and dismiss Plaintiffs’
complaint.
An Order consistent with this Opinion will enter.
Dated: January 2, 2018

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

4

He did aggressively poke his walking cane at the barricade in an unreasonable manner and may have made contact
with an officer, but viewing the facts most favorably to Harcz, it is not apparent that he was intending to hit the officers.

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