Argued: June 20, 2019
from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:17-cv-02148-Dan A.
Polster, District Judge.
D. Strang, GALLAGHER SHARP LLP, Columbus, Ohio, for
Chandra, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for
D. Strang, Monica A. Sansalone, GALLAGHER SHARP LLP,
Columbus, Ohio, for Appellants.
Chandra, Patrick S. Kabat, THE CHANDRA LAW FIRM LLC,
Cleveland, Ohio, for Appellee.
Before: MERRITT, THAPAR, and READLER, Circuit Judges.
THAPAR, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
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
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
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, . . .