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Novak v. City of Parma

United States Court of Appeals, Sixth Circuit

July 29, 2019

Anthony Novak, Plaintiff-Appellee,
City of Parma; Kevin Riley, Individually and in his Official Capacity as an Employee of the City of Parma, Ohio; Thomas Connor, Individually and as an Employee of the City of Parma, Ohio, Defendants-Appellants.

          Argued: June 20, 2019

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cv-02148-Dan A. Polster, District Judge.


          Steven D. Strang, GALLAGHER SHARP LLP, Columbus, Ohio, for Appellants.

          Subodh Chandra, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Steven D. Strang, Monica A. Sansalone, GALLAGHER SHARP LLP, Columbus, Ohio, for Appellants.

          Subodh Chandra, Patrick S. Kabat, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.

          Before: MERRITT, THAPAR, and READLER, Circuit Judges.



         Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department's official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a "Pedophile Reform event," at which pedophiles would receive honorary police commissions.

         Novak's page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a "most gullible person on Facebook" standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

         Novak's Facebook page was either a protected parody in the great American tradition of ridiculing the government or a disruptive violation of state law. Maybe both. At this stage, we decide only whether the officers are entitled to qualified immunity. For some of Novak's claims they are, but for others they are not.


         This case comes to us after a motion to dismiss, so we take the facts as Novak alleges them and draw reasonable inferences in his favor. Courtright v. City of Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016). Novak created a "farcical Facebook account" designed to look like the police department's official page. R. 6, Pg. ID 1239. The page was up for twelve hours and published several posts. Among the posts was a recruitment advertisement that "strongly encourag[ed] minorities to not apply." Id. at 1250. Novak also posted an apology from the department for "neglecting to inform the public about an armed white male who robbed a Subway sandwich shop," while promising to bring to justice an "African American woman" who was loitering outside the Subway during the robbery. Id.

         The page was polarizing. Some of its about 100 followers thought it was "the funniest thing ever." Id. at 1253. Others were angry. And yet others were confused, wondering whether this was the actual Parma police official Facebook page. A handful of people were so angry or confused that they called the police station. In all, the station received twelve minutes of calls. Others continued to enjoy the page, which soon "became a platform for a wide range of citizens to air their grievances about the Department." Id. at 1259. The officers later testified that they worried the page would confuse the public and that the "likely result is that people would call." Id. at 1271.

         One of the page's audiences-the Parma Police Department-did not find the page funny. Once the officers got wind of Novak's page, they "all stopped what [they] were doing to take a look at it, and a couple of [them] tried to figure out who did it." Id. at 1253. One officer said they "just wanted it down." Id. at 1254. They took several steps to make that happen.

         A Facebook battle ensued. First, the department posted a warning on its official Facebook page. The warning alerted the public to the fake page and assured them that the matter was "currently being investigated." Id. at 1255-56. Then Novak reposted the exact same warning on his own page. He claims he did this to "deepen his satire." Id. at 1259. For the same reason, Novak deleted "pedantic comments" on his page explaining that the page was fake, as these "clumsy explication[s]" only "belabored the joke." Id. at 1253.

         After that, the conflict moved offline and into the real world. Officer Kevin Riley assigned Officer Thomas Connor to the case and tasked him with finding out who ran the page. So Connor sent a letter to Facebook requesting that the page be shut down immediately. He also sent an email to a different Facebook representative asking that the page be taken down. The police also informed local news outlets of the investigation. The case of the fake police page even appeared on the nightly news. At that point, Novak decided to delete his creation. He had heard of the department's investigation and was worried about the consequences.

         Though Novak was done posting, the police department was not done investigating. They still wanted to find the person behind the laptop. So Connor subpoenaed records from Facebook. Riley directed Connor to go further and obtain a search warrant for Facebook. Novak alleges that Connor made several "material misrepresentations and omissions" to obtain that warrant. Id. at 1260. The warrant still issued, and Facebook disclosed that Novak was the one behind the fake account.

         Once the department realized that Novak was the cyber culprit, Riley directed Connor to obtain two more warrants-one to search Novak's apartment and one to arrest him. The warrants said that Novak unlawfully impaired the department's functions, in violation of Ohio Rev. Code § 2909.04(B). Novak responds that, other than twelve minutes of phone calls to the department, the police department suffered no disruption to its functions. And Novak claims the officers were unaware of the twelve minutes of call time when they obtained the warrants. But, once again, the warrants still issued, and the department arrested Novak. The case went to trial, and Novak was acquitted.

         After he was acquitted of the criminal charge, Novak sued the City of Parma and Officers Riley and Connor. He alleged (in over thirty claims) that the city and its officers violated his constitutional and statutory rights under federal and Ohio law. The defendants moved to dismiss his thirty-plus claims. The district court granted the motion in part and denied it in part, with twenty-six claims left standing. On appeal, the police claim that qualified immunity shields them from Novak's lawsuit. We review de novo whether the officers are entitled to qualified immunity and issues "inextricably intertwined" with that question. Courtright, 839 F.3d at 517- 18, 523.


         Qualified immunity protects government officials like the Parma police officers from being liable for money damages if their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine balances "the need to hold public officials accountable when they exercise power irresponsibly" with "the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009).

         Officers Riley and Connor are entitled to qualified immunity "unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time." District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation marks omitted). For a right to be "clearly established," the "constitutionality of the officer's conduct" must have been "beyond debate" in the "particular circumstances before him." Id. at 589-90 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has cautioned that "clearly established" must not be defined "at a high level of generality." Id. at 590. Instead, we must be sensitive to the fact that police officers work in the real world, which is often messier than law books would have us believe. Nieves v. Bartlett, 139 S.Ct. 1715, 1725 (2019) ("Police officers conduct approximately 29, 000 arrests every day-a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving." (internal quotation marks and citation omitted)). So when it comes to holding police officers liable for heat-of-the-moment decisions they make in the line of duty, abstract legal principles will not do the trick.

         On both the facts and the law, specificity is our guiding light. But we must also be mindful of the stage of the proceedings. This case reaches us early, after a motion to dismiss. And while we always hope to resolve qualified immunity claims at the earliest possible point in the litigation, we cannot resolve such claims when we need more factual development to do so. Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (noting that an appeal of a denial of qualified immunity must be "premised not on a factual dispute, but rather on 'neat abstract issues of law'" (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995))). We consider each of Novak's claims under these standards.

         III. Retaliation

         Novak argues that the officers retaliated against him because of his protected speech. The retaliation claim turns on two issues: (1) whether Novak's Facebook page was a parody and (2) whether the Parma police had probable cause to arrest Novak for his page. Because resolving both issues involves questions of fact, the claim survives. Greene v. Barber, 310 F.3d 889, 898 (6th Cir. 2002) ("Because of the fact-intensive nature of the requisite inquiry, . . . ...

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