After Plaintiff “Criticized the City Manager …, the Manager Complained About Him to the Police.”

From yesterday’s decision in Blackwell v. Nocerini, written by Sixth Circuit Judge Eric Murphy and joined by Chief Judge Jeffrey Sutton and Judge John Bush:

After Mark Blackwell criticized the city manager of a small Michigan city, the manager complained about him to the police. Two officers convinced a prosecutor to charge Blackwell with stalking. But a judge acquitted him.

Blackwell then sued the manager and officers for violating the First Amendment by inducing this prosecution in retaliation for his political speech. The district court held that his complaint alleged enough facts to rebut the city officials’ qualified-immunity defense at the pleading stage. The officials now appeal. We agree that Blackwell plausibly pleaded that the officials sought to prosecute him in retaliation for his speech and without probable cause that he had committed a crime….

Because this case reaches us at the pleading stage, we must accept the allegations in Blackwell’s complaint as true. We summarize the facts relying solely on those allegations, keeping in mind that the evidence developed in discovery may refute them down the road.

In 2018, many people complained about the “divisive and hostile” work environment for public employees in the City of Wayne, Michigan. Because the poor environment had led to low morale and high turnover, the City hired a human-resources expert to investigate the complaints. This expert allegedly confirmed much of the concerns. His findings pointed the fault at Wayne’s City Manager: Lisa Nocerini. She allegedly showed favoritism toward some employees and a lack of respect toward others.

Blackwell, a Wayne resident, obtained the expert’s report. He began to call for Nocerini’s termination during the public-comment period of City Council meetings. Unhappy with this criticism, Nocerini allegedly tried to convince Wayne’s then-existing police chief to charge Blackwell with a crime. This police chief refused.

In December 2018, however, the chief resigned. Nocerini convinced the City Council to appoint Ryan Strong as the interim chief.

At a City Council meeting in January 2019, Blackwell reiterated that many city employees had resigned due to morale issues and again called for the City Council to fire Nocerini. Nocerini responded by renewing her efforts to get the police to charge Blackwell. She told Chief Strong about two alleged incidents from 2016. During the first, Blackwell watched Nocerini and “may have taken photos” of her while she publicly campaigned for a tax increase to support the police and fire departments. During the second, Blackwell followed Nocerini’s car for a few blocks as she drove to city hall. Apart from these two incidents, Nocerini also told Strong that Blackwell often loitered with others in the city hall’s parking lot after City Council meetings. Nocerini allegedly never reported these things to the police until after the January 2019 meeting at which Blackwell criticized her.

Because Strong sought Nocerini’s support to become the permanent police chief, he asked Lieutenant Finley Carter to investigate Blackwell. Carter discussed Nocerini’s claims with other city personnel but could find no additional evidence of wrongdoing. Carter decided to recommend charges anyway. At the urging of Nocerini and Strong, he asked the Wayne County Prosecutor’s Office to file a criminal complaint against Blackwell.

In March 2019, prosecutors charged Blackwell with disturbing a lawful meeting and with stalking. Yet the prosecution dismissed the disturbing-a-meeting charge before trial. And a state court found Blackwell not guilty of the stalking charge after a bench trial. The court concluded that Blackwell had not done “anything out of the norm” or “outside city property” and that Nocerini could not reasonably have felt “emotionally distressed” from his conduct….

The court concluded that Blackwell’s case could proceed because he “pleaded allegations plausibly suggesting the ‘absence of probable cause’ for the charges brought against him”:

The City Officials … argue that the complaint pleads facts suggesting that they had probable cause to charge Blackwell with a misdemeanor stalking offense. The Michigan legislature has defined stalking as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to” have such feelings. For an action to qualify as “harassment,” a defendant must direct the action “toward a victim[.]”Such harassing actions can include “repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer” this distress. But “constitutionally protected activity” cannot count as harassment. A defendant must also engage in a “course of conduct” of prohibited harassment, which means that the defendant must have undertaken “a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.”

Under the complaint’s version of events, no “‘reasonable and prudent’ person” would believe that any of Blackwell’s three alleged actions qualified as harassment. Two of those actions occurred in 2016—years before the City Officials pursued the stalking charge. These actions could not reasonably have caused Blackwell [presumably meaning Nocerini -EV] to “suffer emotional distress[.]”

As for the first, Nocerini once spotted Blackwell driving two cars behind her as she went to work. But city hall sits on “a main access road,” so many people drive on this road. And Nocerini noticed Blackwell behind her only once.

As for the second, Blackwell allegedly once watched Nocerini campaign in public and “may have taken photos” of her. But it is not unusual for citizens to watch public officials campaign in public spaces. And again, this activity happened only once. Further, the long gap between these 2016 actions and the more recent actions undercuts the claim that Blackwell engaged in a “pattern of conduct” revealing a “continuity of purpose” to harass Nocerini.

This conclusion leaves Nocerini’s concerns that Blackwell more recently gathered “in the parking lot of city hall with other individuals after City Council meetings or while city hall was open for business.” Yet Blackwell’s lawful presence on public property—by itself—is not conduct “directed toward” Nocerini that could qualify as “harassment” under Michigan law. And no reasonable person would “suffer emotional distress” from Blackwell’s mere presence in a public place. In sum, once we accept the complaint’s allegations as true, we can understand why the state court allegedly found that Blackwell had not done “anything out of the norm” and that Nocerini could not reasonably “feel emotionally distressed” from his conduct….

[Blackwell] suggests that much of this conduct—for example, taking pictures of a public official or loitering at city hall—qualified as protected First Amendment activity independent of his criticism of Nocerini. If true, the First Amendment and Michigan law would both insulate that conduct from criminal sanction. Yet we can save these First Amendment questions for later. Blackwell’s alleged “stalking” conduct would not fall within the state law’s definition of “harassment” whether or not the First Amendment protected it. So no reasonable officer could believe that there was a “substantial chance” that Blackwell had engaged in the stalking of Nocerini.

And the court concluded that the facts as alleged by Blackwell would have constituted a violation of clearly established First Amendment law, and (if accepted) would thus defeat the qualified immunity defense:

It would have been “obvious” to any reasonable officer that the three incidents that allegedly led the City Officials to pursue charges against Blackwell did not establish probable cause that he had engaged in stalking.

The City Manager resigned in  Timothy E. Galligan represents Blackwell.

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