First and Fourth Amendment Claims Over Arrest at Protest of Police Chief Can Go Forward

From the decision earlier this month by Judge F. Kay Behm (E.D. Mich.) in Rideout v. Shelby Twp.:

This case arises from Rideout's arrest after a series of protests against the Shelby Township Chief of Police, Robert Shelide, a defendant here. On June 16, 2020, Chief Shelide was suspended for thirty days after having made multiple posts on a Twitter Account using a pseudonym supporting racist ideals and endorsing police brutality. On July 1, 2020, July 15, 2020, and July 20, 2020, Rideout participated in protests against Shelide. On the evening of July 20, 2020, local media interviewed Rideout, who criticized Shelide's return from suspension and called for his resignation.

According to the SAC [Second Amended Complaint], in response to Rideout's criticisms, the named Defendants worked together to retaliate against him for exercising his constitutional rights under the First Amendment. Rideout alleges that Shelide and the police officer defendants colluded to conduct a pretextual investigation of his activities on July 20, 2020 to fabricate a misdemeanor charge of violating Mich. Comp. Laws § 257.602 (failure to comply with the order or direction of a police officer) and presented false or misleading facts to the prosecutor's office. No other protester was arrested for their participation in the July 20, 2020 protests/demonstrations.

The SAC alleges that Defendant Ermir Villa's police report, which served as the basis for the warrant, was untruthful and failed to include exculpatory evidence. The SAC further alleges that Villa, the other Defendant officers, and Shelide were all aware at the time the arrest warrant was obtained that Rideout sought to cooperate with officers at the protest, asked for more time to disperse the crowd, and the officer on the ground granted that request. Despite this knowledge, Defendants colluded to omit this information from the presentation of evidence to the prosecutor and magistrate who issued the warrant.

In 2021, Rideout filed a motion to dismiss the charges based on a lack of probable cause and insufficient evidence. After an evidentiary hearing, the state court judge dismissed the charges, ruling:

a) "I would note just as an aside, that I thought it was somewhat unusual—somewhat unusual for the Defendant ("Rideout") to be charged after the fact and arrested several days later rather than the date of the alleged incident, which typically would be the case and was the case on some of these other matters."

b) "As I've indicated, I spent a lot of time looking at the videos. The video shows a—a number of times where the Defendant, Mr. Rideout, did discuss issues with the police officers involved. It did seem like he was trying to control the crowd; control the participants. At one point, directing 6 them off of the roadway, and it did appear that he was at—at certain times assisting the police officers. I did see that he was, in fact, thanked by one of the police officers for that assistance."

c) "I just did not feel that there was sufficient evidence under the circumstances to sustain the charge and to go to trial on the matter."

d) Case was dismissed.

The court allowed plaintiff's First Amendment claim to go forward:

Although probable cause generally will defeat a § 1983 First Amendment retaliation claim, two exceptions exist where, as here, the defendant officers are being sued in their official capacity. For the first exception to apply, the Supreme Court held that (1) there must be an "official municipal policy of intimidation"; (2) the municipality must have "formed a premeditated plan" to retaliate against the plaintiff; (3) the plaintiff must present "objective evidence of a policy motivated by retaliation"; (4) there must be "little relation" between the protected speech and the offense that led to the arrest; and (5) the protected speech must be "high in the hierarchy of First Amendment values," such as the freedom to petition. Lozman v. City of Riviera Beach (2018). The second exception applies where "a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been," the existence of probable cause will not preclude a First Amendment retaliation claim. Nieves v. Bartlett (2019).

Rideout's SAC alleges that he was the only protestor at the July 20, 2020 protest who was arrested, despite the fact that multiple protestors engaged in the same actions as he did. The SAC further alleges that Defendants' investigation of him was initiated as a pretext to execute their plan to retaliate against him and intimidate him for exercising his First Amendment rights to protest Shelide. This suggests that Rideout's retaliation claim falls within the exception outlined in Lozman and the motion to dismiss Count I is denied for this reason. Moreover, as discussed below, the SAC has sufficiently alleged a lack of probable cause such that a claim would also survive on this basis.

And the court held the same about the Fourth Amendment claim:

[This claim] is based solely on the Fourth Amendment, not the First Amendment and thus, the above-described exceptions do not apply. And claims for false arrest and false imprisonment fail when there is probable cause to support the arrest.

Rideout alleges that Defendants "omitted crucial, known details of the protest, including that Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more time to disperse protesters from the street." Rideout points out that a facially valid warrant is not always sufficient to merit summary judgment or dismissal in an action brought pursuant to § 1983 when evidence exists that a defendant intentionally misled or intentionally omitted information at a probable cause hearing for an arrest or a search warrant provided that the misleading or omitted information is critical to the finding of probable cause. [Rideout] asserts that Defendant Vila left "exculpatory evidence" out of his police report when submitting his warrant request, namely that Rideout sought to cooperate and was granted more time to disperse the crowd by an officer and that Defendants knew this. Defendants contend that the court should reject Rideout's contention because the video of the protest shows that he did not obey police commands and, therefore, there is probable cause to support the arrest warrant.

A police officer has probable cause to arrest a suspect if the "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." "Generally, probable cause exists when the police have 'reasonably trustworthy information . sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Moreover, an officer is required to "consider the totality of the circumstances," and cannot look only at the evidence of guilt while ignoring all exculpatory evidence when assessing probable cause. "In general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible."

Even considering the evidence offered by Defendants (which in the view of the court is not inconsistent with [Plaintiff's] allegations .), neither party offers any type of analysis regarding probable cause and whether the evidence that "Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more to time to disperse protesters from the street" would alter the probable cause analysis. In these circumstances, viewing the evidence in the light most favorable to Rideout, and given that the video does not contradict [Rideout's claims], the court cannot say there is only one reasonable determination possible regarding probable cause, and thus the complaint has sufficiently alleged a lack of probable cause.