On November 23, 2022, the Sixth Circuit Court of Appeals decided the Burton v. City of Detroit[i], in which the court examined whether officers violated the First and Fourth Amendments for arresting a member of the Detroit Board of Police Commissioners (BOPC) at a public meeting.  The relevant facts of Burton are as follows:

Burton was elected to the BOPC in 2013 and has represented the Fifth District of Detroit in this capacity since 2014. The BOPC provides oversight for the Detroit Police Department (“DPD”). The BOPC Bylaws require that all BOPC meetings be conducted in conformity with Robert’s Rules of Order. The Bylaws further state that every commissioner who seeks to speak during a meeting must first address the Chair and speak only “upon recognition by the presiding officer[.]” (BOPC Bylaws, R. 44-2, PageID 748.)

On July 11, 2019, the BOPC held a community meeting at which Carter was the Chairperson. The parties accept as true for this motion or do not dispute the general timeline and facts that follow. Roughly twenty minutes into the meeting, Burton interrupted Carter, and said “Madam Chair.” Carter responded with “Commissioner Burton,” thereby recognizing him as required by the Bylaws. Burton then asked Carter what she would do differently as Chair. Carter responded that Burton’s comment was out of order. Burton continued speaking, asking about the BOPC’s potential policy regarding the use of facial recognition software to identify defendants, because of his views of the high rates of misidentification of black people by this software. At this point, Carter told Burton that if he continued to speak, he would be removed from the meeting.

DPD Officer LeValley then told Burton that if Burton continued speaking out of order, DPD officers would take action. Burton accused LeValley of threatening him and continued speaking, at which point Carter announced that Burton was out of order for the second time. Burton persisted, so Carter called him out of order a third and final time, and then asked LeValley to remove Burton from the meeting. DPD Officers Kyriacou and Said, at LeValley’s behest, approached Burton and asked him to leave the meeting.

But Burton, believing that he could not be forcibly removed from a BOPC meeting under the Bylaws without a majority vote from the Board members, refused to submit peacefully to arrest. An altercation occurred between Burton and the officers attempting to arrest him, with Burton yelling at the officers to stop grabbing him. While attempting to remove Burton, the officers pulled him out of his chair and in doing so, his head struck the ground. During this encounter, the community members became extremely agitated, screaming at the officers to let Burton go, filming the altercation, and attempting to follow the officers outside the meeting room.

The officers then placed Burton, handcuffed, in the back of a police car and brought him to a Detroit Detention Center. Burton inquired, multiple times, why he was arrested—specifically which statute he had violated—and none of the officers responded. Nor did the officers read Burton his Miranda Rights. Though ultimately Burton was not charged with a crime, the officers contend that he was arrested for causing a disturbance at the meeting, see Mich. Comp. Laws § 750.170, and obstructing police officers’ duties by resisting arrest, see Mich. Comp. Laws § 750.81d.[ii]

Burton filed suit against the City of Detroit, Carter and the involved police officers and alleged that they violated his rights under the First and Fourth Amendment.  The defendants filed motions for summary judgment and qualified immunity and the district court granted the motions, dismissing the suit.  Burton appealed to the Sixth Circuit Court of Appeals.

The court of appeals first noted that, to defeat the officers’ qualified immunity. Burton must satisfy a two-pronged test.  First, Burton must establish sufficient facts to show that the officers violated his rights under the First and Fourth Amendments.  Second, Burton must show that the law was clearly established such that another reasonable officer in the same situation would have known he was violating Burton’s rights.

The court of appeals first set out to determine if the officers violated Burtons rights under the Fourth Amendment by arresting him without probable cause.  The court noted the relevant legal principles and stated

Fourth Amendment seizures must be “reasonable,” which requires probable cause to believe the individual has committed a crime. Bailey v. United States, 568 U.S. 186, 192, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Arnold v. Wilder, 657 F.3d 353, 363 (6th Cir. 2011) (quoting United States v. Pearce, 531 F.3d 374, 380-81 (6th Cir. 2008)). And whether an officer has probable cause to arrest “ordinarily depends, in the first instance, on state law.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (citation omitted).[iii]

The court of appeals also stated that state law in Michigan allowed officers to make warrantless arrests if a crime or ordinance violation is committed in the officer’s presence.

Here, Burton was arrested for disturbing a public meeting.  The court stated

Section 750.170 makes it a misdemeanor to “make or excite any disturbance or contention . . . at any . . . public meeting where citizens are peaceably and lawfully assembled[.]” Mich. Comp. Laws § 750.170. It is undisputed that the BOPC community meeting was a public meeting where citizens were assembled. Id. Michigan courts have defined a “disturbance,” in the context of the statute, as “[a]ny act causing annoyance, disquiet, agitation, or derangement to another, or interrupting his peace[.]” People v. Weinberg, 6 Mich. App. 345, 149 N.W.2d 248, 251 (Mich. Ct. App. 1967) (quoting Black’s Law Dictionary 563 (4th ed., 1951)); see People v. Rice-White, No. 350250, 2021 Mich. App. LEXIS 417, 2021 WL 220801, at *2 (Mich. Ct. App. Jan. 21, 2021) (finding that “disturbance” includes “an interruption of peace and quiet; a violation of public order and decorum”)[iv]

Applying the above law to the facts of Burton’s case, it was noted that Burton continued to speak and “caused an annoyance and agitation,” even after Carter told Burton three times that he was out of order and after the police officer told him he would be removed from the meeting if continued to speak.  The court also stated that Burton’s conduct “interrupted the peace and quiet” of the meeting and “violated public order and decorum.”  The police officers stated that they arrested Burton because he “disturbed the ability of the public body to conduct their business in an orderly fashion” by refusing to allow Carter to continue the meeting by his interruption and by resisting arrest.  Based upon the above reasons, the court of appeal held that the officers had probable cause to arrest Burton for disrupting the public meeting.

Burton argued that, since Roberts Rules of Order were not followed according to BOPC procedure, that the officers lacked probable cause to arrest him.  Specifically, Roberts Rules would have required the Board members to vote to remove him from the meeting.  The court of appeals stated

[W]e have never recognized that parliamentary meeting rules supersede validly enacted state law. Regardless of whether the Rules were followed or not, Burton disturbed the meeting and therefore violated state law, providing the Officials with probable cause to arrest him.[v]

The court further held that since the officers had probable cause to arrest Burton for disturbing the meeting, they also had probable cause to arrest him for resisting arrest when he caused an altercation as officer arrested him, screamed at the officers, and had to be pulled from his chair.

As such, Burton failed to meet the first prong of the test to defeat qualified immunity, as the officers did not violate his rights under the Fourth Amendment.

The court of appeal then examined whether the officers violated Burton’s rights under the First Amendment by arresting him in retaliation for exercising his right to free speech.  The court first noted the legal principles relevant to this issue and stated

Under the First Amendment, government officials may not subject an individual, like Burton, to retaliatory actions when the individual engages in protected speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). To establish a retaliation claim, Burton must show “(1) that [he] was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of [his] constitutional rights.Paige v. Coyner, 614 F.3d 273, 277-78 (6th Cir. 2010) (citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).[vi]

The court noted that both plaintiff and defendants agree that the first two elements of the First Amendment claim were met in Burton’s case.  The dispute was regarding the third element regarding whether the arrest was motivated, at least in part, due to Burton’s exercise of his constitutional rights.  The court of appeals held that Burton cannot meet the third element because the officers had probable cause to arrest him.  The court of appeals cited the Supreme Court case, Nieves v. Bartlett[vii], in which the Supreme Court held that

[A] plaintiff’s retaliatory arrest claim fails as a matter of law because there was probable cause to arrest the plaintiff.  As Nieves makes clear, if there is a showing of probable cause, a retaliatory arrest claim fails.” Hartman v. Thompson, 931 F.3d 471, 484-85 (6th Cir. 2019).[viii]

While, generally, probable cause to arrest will defeat a retaliatory arrest claim, in Nieves, the Supreme Court did discuss an exception to this rule.  Specifically, the Court stated

Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. In such cases, an unyielding requirement to show the absence of probable cause could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___, 138 S. Ct. 1945, 201 L. Ed. 2d 342, at 352.[ix]

Thus, if an officer had probable cause to arrest a person, but ordinarily does not arrest for that offense, the officer may be subject to a retaliatory arrest claim under the First Amendment, as there would be evidence that the arrest was intended to suppress speech.  However, this exception did not apply in Burton’s case, as officers typically do make arrests for disturbing public meetings and resisting arrest.

As such, the court held that since the officers had probable cause to arrest Burton, his First Amendment claim failed, and he did not meet the first prong of the test to defeat the officers’ qualified immunity.

The court of appeals also noted that the claim against the City of Detroit also failed because Burton failed to establish an underlying constitutional violation.

Therefore, the court of appeals affirmed the decision of the district court granting summary judgment in favor of the officers and the city.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 22-1222 (6th Cir. Decided November 23, 2022 Unpublished)

[ii] Id. at 2-4

[iii] Id. at 7 (emphasis added)

[iv] Id. at 7-8

[v] Id. at 9 (emphasis added)

[vi] Id. at 11 (emphasis added)

[vii] 139 S. Ct. 1715 (2019)

[viii] Burton at 11

[ix] Nieves, 139 S. Ct. at 1727

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