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Lowden v. County of Clare

March 26, 2010


The opinion of the court was delivered by: Thomas L. Ludington United States District Judge

Honorable Thomas L. Ludington


The claims in this case highlight the delicate balance between "[t]he ability of government . . . to shut off discourse solely to protect others from hearing it," Cohen v. California, 403 U.S. 15, 21 (1971), and the highly valued right to free speech embodied in the First Amendment. In the last several years, to spread the message of their church, members of the Westboro Baptist Church have picketed funerals of American soldiers by, for example, holding signs that say, "Thank God for Dead Soldiers." See generally Phelps-Roper v. Strickland, 539 F.3d 356, 359 (6th Cir. 2008). Members of the Westboro Baptist Church believe that American soldiers are being killed in Iraq and Afghanistan because America tolerates homosexuality. Id.

In 2006, the U.S. Congress enacted the Respect for America's Fallen Heroes Act, 38 U.S.C. § 2413, followed by the Respect for the Funerals of Fallen Heroes Act, 18 U.S.C. § 1388. The first act prohibits demonstrations within federal cemeteries without prior approval; within 300 feet of a federal cemetery sixty minutes before, after, and during a funeral; and within 150 feet of a route of ingress or egress sixty minutes before, after, and during a funeral. 38 U.S.C. § 2413(a). The second act applies outside of federal cemeteries and prohibits disruption of military funerals within 300 feet of a military funeral sixty minutes before, after, and during the funeral; and within 150 feet of a route of ingress or egress sixty minutes before, after, and during the funeral. 18 U.S.C. § 1388(a). A violation of either federal statute is punishable by a fine, up to one year imprisonment, or both.

18 U.S.C. §§ 1387, 1388(b).

Soon after enactment of the federal laws, many states, including Michigan, enacted laws of their own. See Mich. Comp. Laws § 750.167d. The Michigan funeral protest statute applies to funerals, memorial services, viewings of deceased persons, funeral processions, and burials. Id. The statute prohibits within 500 feet of each of those events, continuing to "[m]ake loud and raucous noise . . . after being asked to stop," making a "statement or gesture that would make a reasonable person . . . feel intimidated, threatened, or harassed," and engaging in conduct that the person "knows or should reasonably know will disturb, disrupt, or adversely affect the funeral [or related event]." Id. § 750.167d(1).*fn1 A violation of the statute is a felony and punishable by up to two years imprisonment. Id. §§ 750.167(2), 750.168.

In this case, Plaintiffs challenge the "adversely effect" language of the Michigan statute, its application to an area within 500 feet of a funeral or related event, and its application to funeral processions. Plaintiffs' claims arise from the arrests of Lewis and Jean Lowden during a funeral procession for an American soldier and close family friend of the Lowdens. En route from the church to the cemetery with a procession flag on their vehicle, the Lowdens were arrested for violating the Michigan funeral protest statute when their vehicle had handmade political signs in the windows that were critical of government policies and then-U.S. President George W. Bush.


On April 1, 2009, Plaintiffs Lewis Lowden and Robert Lowden ("Plaintiffs") filed the instant complaint against Defendants Clare County ("the County"), and Sheriff Deputies Lawrence Kahsin and Calvin Woodcock ("Deputies Kahsin and Woodcock"). Plaintiff Robert Lowden is the personal representative of the estate of Jean Lowden. Plaintiffs allege facial and as-applied challenges to Mich. Comp. Laws § 750.167d ("the Michigan funeral protest statute"), based on the arrest of Lewis and Jean Lowden ("the Lowdens") during a funeral procession on September 26, 2007.

Plaintiffs' complaint alleges four counts pursuant to 42 U.S.C. § 1983, including: (1) violations of the First Amendment based on overbreadth; (2) violations of the Due Process Clause of the Fourteenth Amendment based on vagueness; (3) violations of the Fourth Amendment; and (4) municipal liability for violations of the First, Fourth, and Fourteenth Amendments. Plaintiffs seek a declaration that the Lowdens' First, Fourth, and Fourteenth Amendment rights were violated by Defendants; a declaration that the Michigan funeral protest statute is unconstitutional on its face; compensatory damages for, inter alia, attorney's fees incurred to defend criminal charges and fees to recover the Lowdens' van from an impound lot; and costs and attorney's fees pursuant to 42 U.S.C. § 1988.

On March 17, 2010, the Court held a hearing on three dispositive motions now before the Court. First, on July 30, 2009, Deputies Kahsin and Woodcock and the County filed a motion to dismiss or for judgment on the pleadings [Dkt. # 20]. Defendants seek dismissal of Plaintiffs' claims against Deputies Kahsin and Woodcock based on qualified immunity, dismissal of Plaintiffs' facial challenges because the County and Deputies Kahsin and Woodcock are not proper Defendants to a facial challenge, and dismissal of Plaintiffs' municipal liability claim against the County based on the absence of a municipal policy. Plaintiffs filed a response [Dkt. # 23] on August 20, 2009; and Defendants filed a reply [Dkt. # 27] on August 31, 2009.

In lieu of a hearing on Defendants' motion on September 24, 2009, the parties attended a status conference. At the conference, it was resolved that a forty-five day stay of the scheduling order was justified to allow the parties an opportunity to investigate settlement while still framing the constitutional issues. A follow-up conference was scheduled for, and held on, November 20, 2009. At the conference, Plaintiffs' counsel expressed the intent to imminently file a motion for judgment on the pleadings. The parties agreed that the most expeditious and cost-effective route to resolution of the case would favor holding a hearing on Defendants' pending motion in conjunction with Plaintiffs' anticipated motion.

Subsequently, Plaintiffs filed a motion for partial judgment on the pleadings [Dkt. # 31] on November 24, 2009. Plaintiffs seek a declaration that the Michigan funeral protest statute is unconstitutional on its face and challenge Deputies Kahsin and Woodcock's assertions of qualified immunity. In light of the relief Plaintiffs sought, a determination that the Michigan statute is unconstitutional on its face, Michigan Attorney General Michael Cox was invited to intervene within sixty days pursuant to 28 U.S.C. § 2403(b) to defend the constitutionality of the Michigan statute.

On January 29, 2010, the Attorney General accepted the invitation to intervene and filed a motion for summary judgment [Dkt. # 39]. The briefing of Plaintiffs' motion and the Attorney General's motion overlaps. In sum, Defendants filed a response to Plaintiffs' motion [Dkt. # 42] on February 8, 2010; Plaintiffs filed a combined reply to Defendants' response and a response to the Attorney General's motion [Dkt. # 43] on February 12, 2010; the Attorney General filed a combined response to Plaintiffs' motion and reply to Plaintiffs' response to its motion [Dkt. # 47] on February 25, 2010; and Plaintiffs filed a reply to the Attorney General's response to their motion [Dkt. # 51] on March 4, 2010.

As will be further explained below, Deputies Kahsin and Woodcock are not entitled to qualified immunity on Plaintiffs' Fourth Amendment cause of action or as-applied Fourteenth and First Amendment causes of action. However, they are entitled to qualified immunity on Plaintiffs' Fourteenth and First Amendment facial challenges to the Michigan funeral protest statute because it was not clearly established that the statute is unconstitutional, if it is in fact unconstitutional. In light of the resolution of Plaintiffs' facial challenges to the statute on the basis of qualified immunity, it appears that the Court may not reach the question of whether the Michigan statute is unconstitutional on its face. The propriety of the Court exercising its discretion to determine the constitutionality of the statute has not been framed or briefed. Thus, the Court will invite the parties to brief the issue. Finally, the County is not entitled to dismissal of Plaintiffs' claims against it because Plaintiffs plead sufficient facts to plausibly suggest an actionable municipal policy.


The applicable standard of review varies as to each of the pending motions and each will be explained prior to review of the facts. First, Defendants have framed their motion as a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), and a motion for judgment on the pleadings brought pursuant to Federal Rule of Civil Procedure 12(c). Similarly, Plaintiffs' motion for partial judgment on the pleadings is brought pursuant to Rule 12(c). The parties agree that "the legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same." Lindsay v. Yates, 498 F.3d 434, 437 n.4 (6th Cir. 2007).

In considering a Rule 12(c) motion, "all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." 5C Wright & Miller, Federal Practice & Procedure § 1368. Thus, when considering a Rule 12(c) motion brought by a defendant, "[t]he court must construe the complaint in a light most favorable to the plaintiff." Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). "Factual allegations must be enough to raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true. . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, - - - U.S. - - - -, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "Facial plausibility" requires the plaintiff to include sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In contrast, when the plaintiff moves for judgment on the pleadings, the motion should be granted if, "on the undenied facts alleged in the complaint and assuming as true all the material allegations of fact in the answer, the plaintiff is entitled to judgment as a matter of law." See United States v. Blumenthal, 315 F.2d 351, 352 (3d Cir. 1963); Hous. Auth. Risk Retention Group, Inc. v. Chicago Hous. Auth., 378 F.3d 596, 600 (7th Cir. 2004). In other words, if a defendant's answer admits, alleges, or fails to deny facts which, taken as true, would entitle a plaintiff to relief on one or more claims supported by the complaint, then the plaintiff's Rule 12(c) motion should be granted. See Nat'l Metro. Bank v. United States, 323 U.S. 454, 456-57 (1945).

When a court is presented with a Rule 12(b)(6) or 12(c) motion, "it may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to the defendant's motion to dismiss, so long as they are referred to in the [c]omplaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). If other "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). Plaintiffs contend that the Court should exclude police photographs and a police incident report that Defendants submitted as exhibits to their motion. Defendants assert that the evidence is referred to in Plaintiffs' complaint and is properly considered. However, at the hearing, Defendants conceded that the evidence is not material at this juncture. The same conclusion is reached by the Court and the evidence will be excluded on that basis.

Finally, the Attorney General has brought a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Generally, under Rule 56(c), a court must review all of the pleadings and evidence in the record to determine whether it can conclude that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." However, the Attorney General asserts that the factual circumstances surrounding the Lowdens' arrests are not material to a determination of whether the Michigan funeral protest statute is unconstitutional on its face. Plaintiffs do not dispute this proposition, and Defendants, whether wisely or not, have disclaimed any interest in whether or not the Michigan statute is constitutional. Under these circumstances, the facts surrounding the Lowdens' arrests need not be considered in a discussion of the constitutionality of the statute. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992) (noting that a statute "may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.").


On September 26, 2007, the Lowdens traveled to Clare County in their 1995 white Dodge Ram van to attend the funeral of Corporal Todd Motley, a soldier who was killed in action in Iraq while serving in the United States Army. The funeral and procession through the downtown area of the town of Harrison was widely publicized and hundreds of onlookers lined the streets to pay their respects to Corporal Motley. The windows of the Lowdens' van had signs taped to the inside that were similar to bumper stickers and visible to observers outside the van. The stickers contained statements that were political in nature, and most were critical of then-U.S. President George W. Bush and his administration's policies. A funeral flag, identifying the vehicle as a participant in the procession, was placed either on the outside of the van or on the inside dashboard, like many other vehicles.

At approximately 2:30 p.m., Deputy Kahsin was advised by a fellow officer at a different location that there was a van in the funeral procession with anti-government protest signs in its windows. When the Lowdens' van reached Deputy Kahsin's location, Deputy Kahsin ordered Lewis Lowden, who was driving, to pull over, Lewis Lowden pulled over as directed, and Deputy Woodcock arrived on the scene to assist Deputy Kahsin. Deputy Kahsin asked Lewis Lowden why he had signs in his windows, Lewis Lowden replied that it was his First Amendment right to criticize the government, Deputy Kahsin then asked both Jean and Lewis Lowden if they were protesting, and the Lowdens both replied that they were not protesting and that they were there to attend the funeral because they were like family to Corporal Motley.

Plaintiffs' complaint contains the following additional allegations: The Lowdens had known Corporal Motley and his family for approximately fifteen years. In particular, Jean Lowden homeschooled Corporal Motley in high school, and Lewis Lowden took Corporal Motley on fishing and camping trips in the summer. The Lowdens were devastated by Corporal Motley's death. Corporal Motley's family invited the Lowdens to attend and to participate in Corporal Motley's funeral service, including the funeral procession. Many onlookers waved American flags and displayed signs thanking Corporal Motley for his service to our country.

Upon arriving at the church service, the Lowdens were asked if they intended to drive in the funeral procession from the church to the burial site, the Lowdens said yes, and they were directed to a parking lot for all the procession vehicles. No comments were made to the Lowdens about the homemade signs on their van, which Lewis Lowden had been taping to the inside windows of the van for years. Following the church service, the Lowdens entered the funeral procession and proceeded slowly in their vehicle for approximately two miles. When Deputy Kahsin stopped the Lowdens, he had not been advised by anyone of a disruption or disturbance caused by the Lowdens' participation in the funeral procession, nor did any such disruption or disturbance occur.

Ultimately, the Lowdens were detained in jail for approximately twenty-four hours before being released on personal recognizance. Jean Lowden, who was fifty-six years old, had serious medical conditions that made her arrest and detention physically painful and distressing. The Lowdens were both forced to endure the humiliation of being arrested in the middle of the funeral procession, and they could not attend the burial service of Corporal Motley as they had planned. The criminal charges against the Lowdens were eventually dismissed without prejudice.


Whether Deputies Kahsin and Woodcock are entitled to qualified immunity is a question that was first framed by their motion filed on July 30, 2009. While Defendants have certainly been accommodating as to the timing of the resolution of their motion, Deputies Kahsin and Woodcock are entitled to consideration of the defense without further delay. After consideration of the qualified immunity defense, whether the Court should grant declaratory relief regarding the constitutionality of the Michigan funeral protest statute will be considered, followed by whether Plaintiffs can proceed on any municipal policy claims against the County.

A "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The privilege serves the purpose of, early in litigation, preventing suits from progressing because qualified immunity is immunity from suit, not merely a defense to liability. See id. at 200-201. Qualified immunity provides "that 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." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once raised, the plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2001) (citation omitted).

The Sixth Circuit undertakes a three step analysis to determine whether an official is entitled to immunity:

First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.

Id. at 901. See Pearson v. Callahan, - - - U.S. - - - -, 129 S.Ct. 808, 818 (2009) (finding that "[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand").

With regard to the second step, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted). See Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993) ("In determining whether a constitutional right is clearly established, the court must first look to decisions of the U.S. Supreme Court, then to decisions of the Sixth Circuit, and, finally to decisions of other circuits."). "This standard requires the courts to examine the asserted right at a relatively high level of specificity," and "on a fact-specific, case-by-case basis." Cope v. Heltsley, 128 F.3d 452, 458-59 (6th Cir. 1997).

Generally, there are two ways in which a plaintiff may show that "officers were on notice that they were violating a 'clearly established' constitutional right." Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005). First, "where the violation was sufficiently 'obvious' under the general standards of constitutional care . . . the plaintiff need not show 'a body' of 'materially similar' case law." Id. (quoting Brousseau v. Haugen, 543 U.S. 194, 199 (2004)). Second, the violation may be shown "by the failure to adhere to a 'particularized' body of precedent that 'squarely govern[s] the case. . . ." Id. (quoting Brousseau, 543 U.S. at 201).

In general, Defendants contend that this is not an "obvious case," in which the general standards of constitutional care would have given Deputies Kahsin and Woodcock "fair notice" that their conduct was unlawful, nor is there a single case or body of cases that squarely govern the circumstances of this case. In contrast, Plaintiffs assert that the constitutional law in existence at the time of the Lowdens' arrest made it sufficiently clear that the Michigan funeral protest statute was unconstitutional such that it was unreasonable for Deputies Kahsin and Woodcock to rely on the statute in making an arrest and to arrest the Lowdens under the particular circumstances.

Plaintiffs assert that officers are not entitled to qualified immunity when they unreasonably rely on unconstitutional statutes, even if the particular statute in question has not been previously so adjudicated. Plaintiffs rely primarily on Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 879-82 (9th Cir. 2002) and Lawrence v. Reed, 406 F.3d 1224, 1231-33 (10th Cir. 2005). In Carey, the plaintiff brought a Fourth Amendment claim after being arrested for violating a Nevada "stop-and-identify" statute. 279 F.3d at 879. The court found that the defendant-officer had probable cause to arrest the plaintiff, but also that the plaintiff's "constitutional claim does not stem from an absence of probable cause to arrest, but from the alleged unconstitutionality of the statutes justifying the arrest." Id. at 879-80 (quotations omitted). The court determined that the defendant was not entitled to qualified immunity because "a reasonable officer in [the defendant's] position would have known that Carey had a clearly established Fourth Amendment right not to identify himself, and that the Nevada statutes at issue, like the statutes in [two other Ninth Circuit cases], were unconstitutional to the extent they allowed Carey to be arrested for exercising his rights." Id. at 881. The court also noted that the U.S. Supreme Court has "consistently recognized that a person detained pursuant to Terry "is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." Id. (collecting U.S. Supreme Court cases).

Plaintiffs assert that the same approach was followed by the Tenth Circuit in Lawrence v. Reed, in which the plaintiff sued a police chief for "seizing her property without a warrant or a hearing." 406 F.3d at 1229. The police chief claimed he was entitled to qualified immunity because he acted pursuant to the city's "derelict vehicle" ordinance. Id. at 1231. The court rejected that defense because the police chief "should have known that the ordinance was unconstitutional." Id. at 1233. The court explained that "some statutes are so obviously unconstitutional that we will require officials to second-guess the legislature and refuse to enforce an unconstitutional statute -- or face a suit for damages if they don't." Id. The court cited several cases, including a Tenth Circuit case, that established that a state must provide an individual with notice and a hearing when it deprives an individual of property by impounding a vehicle. Id.

Plaintiffs contend that the Sixth Circuit has adopted the same reasoning in Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007). In Leonard, the plaintiff was arrested for using the phrase "God damn" at a township board meeting and brought a claim for unlawful arrest in violation of the probable cause requirement of the Fourth Amendment. Id. at 352. The defendant police officer asserted the qualified immunity defense, citing several statutes the plaintiff allegedly violated. Id. at 356-59. The Sixth Circuit decided against the officer, holding that "the laws cited by [the defendant] are either facially invalid, vague, or overbroad when applied to speech . . . at a democratic assembly where the speaker is not out of ...

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