David Holzemer v. City of Memphis ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0302p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DAVID HOLZEMER; DOWNTOWN BUGGY,
Plaintiffs-Appellees, --
LLC,
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No. 09-5086
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v.
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CITY OF MEMPHIS; COUNTY OF SHELBY;
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JEREMY DREWERY,
Defendants, -
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Defendant-Appellant. -
MONIQUE CAMPBELL,
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N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 06-02436—Samuel H. Mays, Jr., District Judge.
Argued: October 15, 2009
Decided and Filed: September 15, 2010
Before: BATCHELDER, Chief Judge; GIBBONS, Circuit Judge; MALONEY, Chief
District Judge.*
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COUNSEL
ARGUED: Timothy Taylor, GODWIN, MORRIS, LAURENZI & BLOOMFIELD,
P.C., Memphis, Tennessee, for Appellant. Joni K. Roberts, BATEMAN GIBSON,
L.L.C., Memphis, Tennessee, for Appellees. ON BRIEF: Timothy Taylor, GODWIN,
MORRIS, LAURENZI & BLOOMFIELD, P.C., Memphis, Tennessee, for Appellant.
Joni K. Roberts, William C. Bateman, Jr., BATEMAN GIBSON, L.L.C., Memphis,
Tennessee, for Appellees.
*
The Honorable Paul L. Maloney, Chief United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 2
_________________
OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Monique
Campbell appeals the district court’s denial of qualified immunity from the
plaintiff–appellees’ First Amendment retaliation claim. David Holzemer and Downtown
Buggy, LLC, sued Campbell, the City of Memphis, Shelby County, and various other
state, county, and city officials under 42 U.S.C. § 1983 for alleged violations of the First,
Fourth, Eighth, and Fourteenth amendments, under 42 U.S.C. § 1985 for an alleged
conspiracy to deprive both plaintiffs of their civil rights, and under Tennessee tort law.
With respect to Campbell, the district court dismissed or granted summary judgement
to Campbell on all claims except the § 1983 retaliation claim, for which the district court
denied qualified immunity. For the following reasons, we affirm the district court’s
determination.
I.
David Holzemer formed Downtown Buggy, LLC, with outside investors in 2003.
Downtown Buggy owned a fleet of eleven motorized, three-wheel rickshaws, designed
by Holzemer, with which it operated a taxi service for visitors to downtown Memphis.
The plaintiffs first applied for a permit to operate their buggy service in March 2003,
and, after an inspection of the buggies and a hearing, the City of Memphis Permit Office
(“Permit Office”) authorized the operation of the buggies. Downtown Buggy began
operations soon thereafter.
Sergeant Monique Campbell is a member of the Memphis Police Department
(“MPD”) who worked in the Permit Office, where she participated in the decision-
making process for granting permits and also played an investigatory and enforcement
role. The plaintiffs allege that Campbell prevented their buggy drivers from having the
same privileges and opportunities as other similarly situated transportation vehicles in
Memphis. Most relevantly, Campbell told buggy drivers that they could not pick up or
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 3
drop off patrons at the entrance to the Pyramid,1 which meant that patrons had to walk
several blocks to catch a buggy, while other transportation providers could stop directly
outside of the Pyramid to collect patrons.
In late 2003 or early 2004, while driving one of his buggies, Holzemer “happened
to cross” Memphis City Councilman Ricky Peete. Peete asked Holzemer how business
was going, and Holzemer mentioned the restriction on parking at the Pyramid. Peete
told Holzemer that he would look into the restriction, and, according to Holzemer, a
Lieutenant Knight of the MPD contacted Holzemer soon afterward to tell him that the
buggies could pick up and drop off in front of the Pyramid. The plaintiffs allege that
Knight’s arrangement was short-lived, and that several months later, Campbell again told
Downtown Buggy drivers that they could not pick up and drop off at the Pyramid.
Campbell claims that she had no knowledge of Holzemer’s conversation with Peete and
that there is no evidence that Peete contacted the Permit Office or any other official
about the restriction. Campbell also asserts that the Permit Office has no authority to
make policy regarding transportation at the Pyramid and that all such decisions were
made and enforced by the Special Events Unit of the MPD. Holzemer noted that
Campbell had told Downtown Buggy that it could not drive along the Main Street Mall,
but that issue had been resolved after he had contacted the Center City Commission.
Holzemer also stated that, in general, “[w]hen we had problems, we would talk to the
heads of the city council. . . . We would go and we would talk to the people that ran the
city and let them know exactly what was going on.” At one point, according to
Holzemer, Kevin Kane, head of the Convention and Visitors Bureau, provided Holzemer
with a letter saying that Downtown Buggy was doing a great job and told him to take it
to the Permit Office.
Downtown Buggy successfully renewed its permit in March 2004. Some time
afterward, following notification from the State of Tennessee that buggies constituted
off-road vehicles and did not require license plates, the plaintiffs returned their license
1
The Pyramid Arena was Memphis’s busiest event venue and the home of the National Basketball
Association’s Memphis Grizzlies and the University of Memphis Tigers basketball teams until late 2004,
when the FedEx Forum opened.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 4
plates to the State and operated without plates until March 2005. At that time, Campbell
and her supervisor at the Permit Office, Lilli Jackson, denied renewal of Downtown
Buggy’s permits on the ground that the buggies lacked license plates. Despite receiving
evidence of the State’s notification, Campbell and Jackson insisted that the buggies be
licensed. Downtown Buggy subsequently obtained new license plates.
At a meeting on April 6, 2005, the Permit Office refused to issue a permit despite
the new licenses. Holzemer, accompanied by an attorney and other associates, met with
the Permit Office again the following day and received a permit several days later. As
a result of the delayed permit process, Downtown Buggy was unable to operate for two
weeks. Furthermore, the plaintiffs allege that MPD officers then began to harass their
drivers. Campbell also allegedly informed Downtown Buggy that it would no longer be
able to service patrons at the FedEx Forum, which had replaced the Pyramid as
Memphis’s premier event venue.
On the morning of July 14, 2005, Downtown Buggy’s premises were raided by
the Auto/Cargo Task Force (“Task Force”), which is made up of Federal Bureau of
Investigation and National Insurance Crime Bureau agents working with local county
and city law enforcement. The Task Force followed an anonymous tip alleging that
Downtown Buggy was altering serial numbers on the buggies to avoid getting permits
for additional buggies. Holzemer signed a consent to search the premises, allegedly
under duress. While Task Force members were confiscating the buggies, searching the
property, and frisking and detaining Holzemer, Campbell arrived at Downtown Buggy
to verify the buggies’ vehicle identification numbers following the Task Force’s
discovery of one buggy with mis-matching numbers. The plaintiffs contend that
Campbell searched Downtown Buggy’s belongings without a warrant or probable case
and “jeered at” Holzemer, telling him “he did this to himself.” Campbell stipulated, for
the purposes of summary judgment, to telling him: “I told you that you were going to do
this to yourself” and, “[a]s of this moment, you are officially shut down.” Holzemer was
taken to a police station and questioned for approximately three hours. Following the
confiscation of the buggies, Holzemer alleges that the MPD rebuffed all attempts by him
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 5
or his parents to provide documentation and secure the return of the buggies and
disallowed the use of any interim replacement buggies.
In October 2005, Holzemer discovered that warrants for his arrest had been
issued, turned himself into the MPD, and retained an attorney. All charges were
dismissed in November 2005 after a General Sessions Judge found that Tennessee Code
§ 55-5-112 (fraudulently defacing, destroying, or altering motor vehicle numbers) does
not apply to bicycle buggies. Soon thereafter, Holzemer went to the Permit Office to
reinstate the permits and to recover the buggies. Campbell referred Holzemer to
Jackson, who informed him that she could not issue permits without vehicles and
referred him to “Auto Cargo,” which in turn referred him to the impound lot. On
recovering the buggies, Holzemer discovered that they had sustained severe damage and
were unusable; he sold them for scrap.
Between December 2005 and February 2006, Holzemer met twice with Campbell
to try to secure permits for Downtown Buggy. Campbell first told him that he could not
have permits because he had no vehicles. Holzemer offered to buy new buggies, but
only if he received assurances that permits would be forthcoming. Subsequently, the
Permit Office informed him on two occasions that to receive a new permit, he would
have to reapply and provide proof that the felony charges had been dropped. In April
2006, Holzemer provided such proof to the Permit Office, which notified the City
Attorney. Holzemer alleged that when he went to the City Attorney’s Office, they had
never received the fax from the Permit Office requesting confirmation of the dropped
charges. Despite inquiring by letter and in person with the City Attorney, Holzemer
heard nothing regarding the reinstatement of the permits. He returned to the Permit
Office in January 2007 and March 2007, but Campbell repeatedly refused to speak with
him.
Holzemer and Downtown Buggy filed a complaint in federal district court on
July 12, 2006, against the State of Tennessee, Shelby County, the City of Memphis, and
various public officials, including MPD officers, county sheriff’s deputies, and other city
employees in their individual capacities. The plaintiffs filed an amended complaint on
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 6
October 26, 2006, in which they first alleged the instant claim of First Amendment
retaliation. The plaintiffs brought claims under 42 U.S.C. §§ 1981, 1983, 1985, and
1988, alleging violations of their rights under the First, Fourth, Eighth, and Fourteenth
amendments. The plaintiffs also brought a number of state law claims.
The defendants filed motions to dismiss, all of which the district court addressed
in an order entered September 25, 2007. The district court found that the statute of
limitations barred consideration of any alleged constitutional violations prior to July 12,
2005, and, therefore, dismissed all claims against the defendants arising from events
before that date. Only two claims against Campbell survived her motion to dismiss,
namely the plaintiffs’ § 1983 claim alleging retaliation for actions protected by the First
Amendment’s Petition Clause and a state tort claim for intentional infliction of
emotional distress (“IIED”).
On December 31, 2008, the district court entered an order on the four remaining
defendants’ motions for summary judgment. See Holzemer v. City of Memphis, No. 06-
2436, at 74–76 (W.D. Tenn. Dec. 31, 2008) [hereinafter Slip Op.]. The district court
granted summary judgment to Officer Drewery, the City of Memphis, and Shelby
County. With respect to Campbell’s motion, the district court granted summary
judgment on the IIED claim but denied summary judgment and qualified immunity from
the retaliation claim. Campbell timely appealed.
II.
The only issue on appeal is whether Campbell is entitled to qualified immunity
from the plaintiffs’ claim of First Amendment retaliation. The claim derives from
Holzemer’s conversation with Memphis City Councilman Ricky Peete, during which
they discussed Downtown Buggy’s troubles with parking. The plaintiffs argue that this
conversation constituted protected speech under the First Amendment’s Petition Clause,
which protects the right to “petition the Government for a redress of grievances.” U.S.
Const. amend. I. They further allege that Campbell’s actions frustrating Downtown
Buggy’s operation and preventing permit renewals were in retaliation for their
petitioning activity. Campbell asserts on appeal that Holzemer’s casual, spontaneous
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 7
conversation with Peete was not protected petitioning activity and, therefore, no
constitutional violation occurred. She further argues that if the conversation were
protected petitioning, she would be entitled to qualified immunity because that right was
not clearly established.
“Government officials who perform discretionary functions are generally
protected from liability for civil damages as long as their conduct does not violate
‘clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Sallier v. Brooks, 343 F.3d 868, 878 (6th Cir. 2003) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Because such a decision involves solely a
question of law, we review the district court’s denial of qualified immunity de novo.
Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005).
We have developed a three-step analysis for reviewing district court decisions
on qualified immunity. See Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).
First, we determine whether, based upon the applicable law, the facts
viewed in the light most favorable to the plaintiff 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. (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)). Although
we are not bound to follow the sequence of this inquiry, see Pearson v. Callahan,
129 S. Ct. 808, 813 (2009), we believe that this case would benefit from the traditional
sequence outlined in Saucier v. Katz, 533 U.S. 194 (2001), and Feathers. Because of the
nature of the constitutional right at issue, “there would be little if any conservation of
judicial resources to be had by beginning and ending with a discussion of the ‘clearly
established’ prong” because it would be “difficult to decide whether a right is clearly
established without deciding precisely what the constitutional right happens to be.”
Pearson, 129 S. Ct. at 818 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir. 2005)).
Therefore, we first address whether Holzemer’s conversation with Peete constitutes
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 8
constitutionally protected petitioning, and, finding that it is, we then examine whether
that right was clearly established at the time the events took place. In conducting our
review, we view the facts in the light most favorable to the plaintiffs. Siggers-El, 412
F.3d at 699.
The district court found:
A reasonable city official would know that shutting down or threatening
to shut down a person’s private business in retaliation for that person’s
seeking redress with the City government would violate that person’s
constitutional right to petition the government. No city official “could,
as a matter of law, reasonably have believed that [such action] was
lawful.”
Slip Op. at 26 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Campbell,
however, contends that Holzemer’s conversation with Peete was not protected
petitioning activity under the First Amendment and that the record demonstrates that she
was merely “doing her job” because she did not reissue permits to an individual who was
ineligible for them. We find that requesting assistance from a city councilman—whether
in writing or in person—constitutes petitioning activity entitled to the protection of the
Petition Clause of the First Amendment. Consequently, Holzemer and Downtown
Buggy have a right to be free from retaliation for exercising that right. Because we find
no constitutional distinction between an oral and written petition for redress, we also find
that a reasonable city official would have known that retaliation for seeking such
assistance from a local, elected official is unlawful.
A.
In order to affirm the district court’s denial of qualified immunity, we must find
that, “[t]aken in the light most favorable to [the plaintiffs], . . . the facts alleged show
[Campbell’s] conduct violated a constitutional right.” Saucier, 533 U.S. at 201. We
have recognized that “government retaliation for filing a petition violates the literal
language of the Petition Clause.” Gable v. Lewis, 201 F.3d 769, 772 (6th Cir. 2000).
We have also clearly stated that private citizens have a First Amendment right to
criticize public officials and to be free from retaliation for doing so. Zilich v. Longo, 34
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 9
F.3d 359 (6th Cir. 1994) (finding a violation of the First Amendment for retaliation by
a mayor against an individual who had publicly criticized the mayor). However, the
plaintiffs’ protected activity falls somewhere between these two long-accepted
principles—that is, plaintiffs specifically allege that Campbell violated the plaintiffs’
right to be free from retaliation for the exercise of their right to petition the government
for redress via Holzemer’s conversation with Peete.2 Thus, our review is limited to this
smaller subsection of the First Amendment right.
We have held that a plaintiff alleging First Amendment retaliation “must prove
that 1) he engaged in protected conduct, 2) the defendant took an adverse action that
would deter a person of ordinary firmness from continuing to engage in that conduct, and
3) the adverse action was taken at least in part because of the exercise of the protected
conduct.” Siggers-El, 412 F.3d at 699 (citing Thaddeus-X v. Blatter, 175 F.3d 378, 393
(6th Cir. 1999) (en banc)). This inquiry is intensely context-driven: “Although the
elements of a First Amendment retaliation claim remain constant, the underlying
concepts that they signify will vary with the setting—whether activity is ‘protected’ or
an action is ‘adverse’ will depend on context.” Thaddeus-X, 175 F.3d at 388. The
district court found that Holzemer’s request of Peete constituted protected petitioning
activity; that there was sufficient evidence in the record to lead a reasonable jury to
conclude that Campbell knew of Holzemer’s conversation with Peete and frustrated his
business activities because of it; and that a reasonable jury could find that Campbell’s
dilatory tactics with respect to reissuing permits and her strong statements at the July
2005 raid of Downtown Buggy’s premises amounted to adverse acts that would deter a
person of ordinary firmness from engaging in the protected petitioning activity. Slip Op.
at 18–26. Campbell disputes all of these determinations.
2
It should be noted that Holzemer’s conversation with Peete was not the only potential petitioning
activity in which Holzemer engaged. The plaintiffs produced evidence that Holzemer spoke with other
city officials about the parking problems. Holzemer and an associate, Brian Reed, also contacted the
Tennessee Department of Public Safety (“DPS”) in Nashville to help resolve a dispute with Campbell
regarding whether the buggies needed to have license plates.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 10
1.
We begin by determining whether Holzemer’s request for assistance constitutes
petitioning activity protected by the Petition Clause. See Campbell v. PMI Food Equip.
Group, 509 F.3d 776, 789 (6th Cir. 2007) (“The threshold question in a right-to-petition
case under the First Amendment caselaw of this and other circuits is . . . ‘whether the
plaintiff’s conduct deserves constitutional protection.’” (quoting Reichert v. Draud, 701
F.2d 1168, 1170 (6th Cir. 1983))).
“The plain language of the First Amendment makes clear that a ‘petition’ triggers
the amendment’s protections. Campbell, 509 F.3d at 789 (citation omitted). The
Petition Clause protects petitioning of “all departments of the Government,” and a
private citizen’s business interest can be the subject of a constitutionally protected
petition. Gable, 201 F.3d at 771; see also E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc. (Noerr), 365 U.S. 127, 139 (1961) (“A construction of the Sherman Act
that would disqualify people from taking a public position on matters in which they are
financially interested would . . . deprive the people of their right to petition in the very
instances in which that right may be of the most importance to them.”).
Admittedly, the context in this case—a private businessman attempting to operate
his business within the permit and policy landscape of local government—is one that we
rarely encounter. See Thaddeus-X, 175 F.3d at 390 & n.6. In the relatively few cases
in which we have addressed Petition Clause retaliation claims, the plaintiffs’ petitions
generally have triggered some formal mechanism of redress such as a grievance process
or lawsuit, while our cases addressing formal and informal verbal complaints
traditionally have come before us as Free Speech Clause cases. For example, in
Thaddeus-X, we found that a prisoner who filed grievances against prison officials
exercised his right to petition. Id. at 395–96 & n.10. And, in Gable, the protected
petitioning activity was an “official written complaint” of sex discrimination lodged with
a state agency. 201 F.3d at 770. The Supreme Court has found informal letters to the
President, a protest including placards and singing, and a publicity campaign “ostensibly
directed toward influencing government action” to constitute protected petitioning
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 11
activity. See McDonald, 472 U.S. at 485; Noerr, 365 U.S. at 144;United Mine Workers
v. Pennington, 381 U.S. 657, 670 (1965) (finding that the Petition Clause protects “a
concerted effort to influence public officials”); Edwards v. South Carolina, 372 U.S. 229
(1963) (finding a protest against laws promoting racial discrimination in the State of
South Carolina to be protected petitioning activity).
Only two circuits have specifically addressed informal, oral petitions. In
Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006), the Seventh Circuit addressed the
issue of oral petitions in the prison context. The Pearson court reasoned:
We are . . . unconvinced that the form of expression—i.e., written or
oral—dictates whether constitutional protection attaches. [The
defendant] acknowledges that a prison grievance is protected . . . and
even goes so far as to admit that Pearson’s complaints would likely have
been protected if he had reduced them to writing on an official grievance
form. But we decline to hold that legitimate complaints lose their
protected status simply because they are spoken. Nothing in the First
Amendment itself suggests that the right to petition for redress of
grievances only attaches when the petitioning takes a specific form.
Id. at 741 (emphasis added); accord Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C.
2007); Palermo v. Coos County Dep’t of Corr., No. 08-cv-109-JL, 2008 WL 4200102,
at *5 (D.N.H. Sept. 11, 2008). The plaintiffs argue that Pearson should control this case
for similar reasons. It is clear that had Holzemer “reduced” his complaint to writing and
submitted it to Peete’s office or to the city council at large, his request would have been
a protected petition for redress. See McDonald, 472 U.S. at 485 (addressing two letters
to the President as petitions). Furthermore, the plaintiffs allege that Holzemer received
a call from an MPD officer removing the ban on parking near the Pyramid shortly after
his discussion with Peete. Thus, if these facts are true, it appears that Peete treated the
request as a petition. Moreover, this kind of informal petitioning is consistent with the
Supreme Court’s jurisprudence on lobbying and protesting as protected petitioning
activity. See Pennington, 381 U.S. at 670; Noerr, 365 U.S. at 138; Edwards, 372 U.S.
at 235–36. Holzemer’s request of Peete is merely lobbying on the local level. Holzemer
stated, “When we had problems, we would talk to the heads of the city council. . . . We
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 12
would go and we would talk to the people that ran the city and let them know exactly
what was going on.”
The Third Circuit has considered oral petitions in the public-employment
context. See Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007); San Filippo v.
Bongiovanni, 30 F.3d 424 (3d Cir. 1994). The San Filippo court distinguished between
informal and formal petitions and concluded that “communications that are not petitions”
should be addressed under the Free Speech retaliation case law of Connick v. Myers, 461
U.S. 138 (1983). The court stated:
[N]either the United States nor the several states are required to
recognize as a “petition” whatever particular communication is so
characterized by one who chooses to protest governmental acts or
omissions. But when government—federal or state—formally adopts a
mechanism for redress of those grievances for which government is
allegedly accountable, it would seem to undermine the Constitution’s
vital purposes to hold that one who in good faith files an arguably
meritorious “petition” invoking that mechanism may be disciplined for
such invocation by the very government that in compliance with the
petition clause has given the particular mechanism its constitutional
imprimatur.
San Filippo, 30 F.3d at 442. In a subsequent case, the Third Circuit stated that “[f]ormal
petitions are defined by their invocation of a formal mechanism of redress.” Foraker,
501 F.3d at 236. The Foraker court also implied in dicta that informal petitions do not
enjoy the same degree of the Petition Clause’s protection as formal petitions. See id. at
237–38.
Campbell argues that San Filippo and Foraker stand for the principle that a
“petition” must invoke some formal grievance mechanism. We disagree. While the San
Filippo court holds that once a government entity recognizes a communication as a
petition, it is bound to treat it as such, it does not hold the reverse to be law. San Filippo
stands for the unsurprising proposition that once formal mechanisms have been
employed, they enjoy Petition Clause protection. Moreover, in distinguishing between
informal/Free Speech and formal grievances/Petition Clause claims, the Third Circuit
relied upon purpose and audience: “[W]hen one files a ‘petition’ one is not appealing
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 13
over government’s head to the general citizenry: When one files a ‘petition’ one is
addressing government and asking government to fix what, allegedly, government has
broken or has failed in its duty to repair.” San Filippo, 30 F.3d at 442 (emphasis added);
accord Foraker, 501 F.3d at 237 (“Whereas the Free Speech Clause protects the right
to wide-open debate, the Petition Clause encompasses only activity to a government
audience. This distinction correlates to the separate analysis for each clause.”). Within
this framework, Holzemer’s request to Peete falls squarely under the protections of the
Petition Clause. Holzemer’s request was aimed directly at a city councilman and
involved no public complaint or statement. Holzemer sought solely assistance in
removing the impediments, apparently put in place by the MPD and Permit Office, to
conducting his business. According to Holzemer, shortly after he lodged his informal
request with Peete, an officer called him to inform him that Downtown Buggy was
authorized to access the Pyramid. That is, as alleged, the repair followed the request for
a fix. Moreover, the informal nature of Holzemer’s petition and the apparent solution
is not inconsistent with the informal interactions of local businessmen and local
governments. Thus, even under San Filippo and Foraker, Holzemer’s request for
assistance from Peete falls within the meaning and purpose of the Petition Clause.
Furthermore, San Filippo and Foraker restricted their holdings to the public
employment context, in which restrictions on First Amendment retaliation claims have
been much more limited due to the government’s unique role as employer. See id.; see
also Waters v. Churchill, 511 U.S. 661, 674 (1994) (“[C]onstitutional review of
government employment decisions must rest on different principles than review of
speech restraints imposed by the government as sovereign . . . because the speech
interferes with the government’s operation. Speech by private people can do the same,
but this does not allow the government to suppress it.”). In Foraker, the court expressed
concern about turning all internal informal complaints to supervisors into
constitutionally protected speech and found the Foraker petition unprotected because the
employee–petitioner had informally complained to his supervisor as his employer rather
than “as a governmental agency.” 501 F.3d at 247 (emphasis added). In the context of
petitioning by a private citizen like Holzemer, this informal up-the-chain-of-command
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 14
concern is absent and, thus, the formal-grievance requirement is unnecessary. See
Gable, 201 F.3d at 771 (“Since the reason for the [“public concern”] test is missing in
the present [non-employment] case . . . the test should not be applied here.”).
In arguing that the law of this court requires a petition to trigger a formal
mechanism for grievances, Campbell also relies heavily upon a recent case of ours that
cited Foraker in addressing Ohio’s tort of malicious interference with the right to
petition the government. See Campbell, 509 F.3d at 776. Although Campbell cited
Foraker’s discussion of formal mechanisms of redress, the opinion did not outline the
scope of the Petition Clause in this circuit because the plaintiffs in that case “did not
petition the government and they took no affirmative steps to do so.” Id. at 789–90. As
the district court in the instant case observed, the Campbell court merely found that
“inaction by the plaintiffs could not be protected action and could not be construed as
a petition to the government.” Slip Op. at 18. Thus we have never held that an
individual must trigger a formal mechanism for filing a grievance in order to enjoy the
protections of the First Amendment’s Petition Clause and we decline to do so today. We
hold that Holzemer’s request for government assistance was protected petitioning
activity.
Because his petitioning fell under the protections of the First Amendment,
Holzemer and Downtown Buggy have a right to be free from retaliation for engaging in
that protected activity: “[R]etaliation by public officials against the exercise of First
Amendment rights is itself a violation of the First Amendment.” Zilich, 34 F.3d at 364
(citation omitted); see also Smith v. Ark. State Highway Employees Local 1315, 441 U.S.
463, 465 (1979) (per curiam) (noting that public employees “surely can . . . petition
openly, and [be] protected by the First Amendment from retaliation for doing so.”).
Therefore the plaintiffs’ allegations of retaliation, if proven, would constitute a violation
of the plaintiffs’ constitutional rights.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 15
2.
We must next consider whether Campbell “took an adverse action that would
deter a person of ordinary firmness from continuing to engage in that conduct.” Siggers-
El, 412 F.3d at 699 (citing Thaddeus-X, 175 F.3d at 393). “Whether a retaliatory action
is sufficiently severe to deter a person of ordinary firmness from exercising his or her
rights is a question of fact.” Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002). Our
First Amendment retaliation cases demonstrate that the harassment necessary to rise to
a level sufficient to deter an individual is not extreme. See Siggers-El, 412 F.3d at 701
(“[S]ince there is no justification for harassing people for exercising their constitutional
rights, [the deterrent effect] need not be great in order to be actionable.” (citations
omitted)). We have held that the adverse-action requirement “is intended to weed out
only inconsequential actions, and is not a means whereby solely egregious retaliatory
acts are allowed to proceed past summary judgment.” Thaddeus-X, 175 F.3d at 398.
Therefore, “if a reasonable trier of fact could conclude that a retaliatory act would deter
a person from exercising his rights, then the act may not be dismissed at the summary
judgment stage.” Siggers-El, 412 F.3d at 701 (citation omitted).
The plaintiffs point to three adverse actions taken by Campbell: 1) the statements
Campbell made during the raid; 2) Campbell’s purposeful delay in granting permit
renewals; and 3) Campbell’s withholding of exculpatory evidence from the prosecution
of Holzemer for vehicle registration violations. Campbell disputes the district court’s
finding that any of her actions were adverse and argues that the effective closure of
Downtown Buggy’s operations was caused by actions over which she had no control and
in which she did not participate. She argues that it was the felony charges and the
confiscation and subsequent destruction of the buggies that rendered Downtown Buggy
ineligible for permit renewal. However, we find that, viewing the conflicting facts in the
light most favorable to the plaintiffs, there is sufficient evidence to permit a reasonable
trier of fact to find that Campbell engaged in delay tactics and hostility toward the
plaintiffs and that Campbell’s actions could deter a person of ordinary firmness from
further exercising his right to petition local government officials.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 16
According to Holzemer’s business associate, Brian Reed, Campbell had a
conversation with Reed and Holzemer in her office in 2005 during which she told them
not to talk to other people in the Permit Office and that she did not care what the state
or city council said because she was “like [their] mama” and was the one who made
decisions. Reed stated that the permits were only issued after a third meeting with
Campbell, this time with an attorney present, and that Campbell’s supervisor had issued
the permits on that occasion over Campbell’s recommendation not to do so. Reed also
alleged that, on one visit, Campbell said, “Don’t say anything else to me, or I am going
to slam you on the floor, handcuff you, and take your (expletive) upstairs kicking and
screaming. The best thing for you to do is leave this office and don’t say anything else
to me.” Additionally, Holzemer claims that, after the criminal charges against him were
dismissed in late November 2005, “[e]very time [Downtown Buggy] went to talk to
Sergeant Campbell . . . she would throw her hands up in the air and make these
ridiculous sounds, like ahe, ahe, ahe, and you couldn’t talk to her.” Such behavior might
deter citizens from petitioning city council if petitioning would lead to a failure to obtain
necessary renewal permits and the de facto closure of their business. Finally,
Campbell’s statements during the raid—“as of this point you’re officially shut down”
and “I told you you would do it to yourself”—were sufficiently hostile, as alleged, to act
as a deterrent to further petitioning.
Campbell argues that there was no adverse action because the plaintiffs were not
actually deterred from seeking redress. That the plaintiffs themselves were not deterred,
without more, is not sufficient to prove a lack of adverse action. We have previously
stated that “the issue is whether a person of ordinary firmness would be deterred, not
whether the [plaintiff] himself actually was deterred.” Harris, 513 F.3d at 519 (citation
omitted). Campbell further submits that no adverse action could have been taken
because Holzemer was not entitled to a permit renewal and so could suffer no
constitutional deprivation by not receiving one. This argument also fails. Although
Campbell is correct that Holzemer had no constitutional property interest in the permit
because it was a benefit within the city’s discretion to grant or deny, see BPNC, Inc. v.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 17
Taft, 147 F. App’x 525, 530 (6th Cir. 2005), there are constitutional limitations to that
discretion:
[The government] may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests—especially, his interest
in freedom of speech. For if the government could deny a benefit to a
person because of his constitutionally protected speech or associations,
his exercise of those freedoms would in effect be penalized and inhibited.
Rutan v. Republican Party, 497 U.S. 62, 72 (1990) (citation omitted). It is for the trier
of fact to determine whether Campbell withheld the government benefit of permit
renewal based on proper or improper grounds or in any way acted to frustrate the
plaintiffs’ right to petition the government. We therefore find that, for the purposes of
withstanding the motion for summary judgment, the second element of the retaliation
claim satisfied.
3.
We now consider whether the alleged adverse action “was taken at least in part
because of the exercise of the protected conduct.” Siggers-El, 412 F.3d at 699 (citation
omitted). We have noted that a “‘motivating factor’ . . . is one without which the action
being challenged simply would not have been taken.” Greene v. Barber, 310 F.3d 889,
897 (6th Cir. 2002). The question, then, is whether the plaintiffs presented sufficient
evidence to establish an inference that Holzemer’s request of Peete was a “motivating
factor” in Campbell’s alleged harassment and dilatory actions. The district court found
that, “[r]eading all facts and drawing all inferences in the light most favorable to
Plaintiffs, a reasonable juror could infer from the chronology of events that Campbell
knew about and was motivated by Holzemer’s conversation with Councilman Peete.”
Slip Op. at 25. Campbell contends that this inference is too attenuated.
“[P]roof of an official’s retaliatory intent rarely will be supported by direct
evidence of such intent. . . . Accordingly, claims involving proof of a [defendant’s]
intent seldom lend themselves to summary disposition.” Bloch, 156 F.3d at 682
(quotation marks omitted). Consequently, circumstantial evidence may provide
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 18
sufficient evidence of retaliatory intent to survive summary judgment. See Harris, 513
F.3d at 519–20. The plaintiffs argue that temporal proximity provides the necessary
circumstantial evidence. “In analyzing the facts in temporal proximity cases, we have
always looked at the totality of the circumstances to determine whether an inference of
retaliatory motive could be drawn.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392,
401 (6th Cir. 2010). We have found that “the temporal proximity between . . . filing . . .
grievances and the [adverse action] provides some circumstantial support for a causal
connection” but have been reluctant to find that such evidence without more can
demonstrate “that the filing of grievances was a substantial or motivating factor.” Smith
v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001). More recently, in the employment
context, we summarized our case law on the weight given to temporal proximity in First
Amendment retaliation cases “as recognizing the possibility that, on a particular set of
facts, extremely close temporal proximity could permit an inference of retaliatory
motive, but also recognizing that often evidence in addition to temporal proximity is
required to permit the inference.” Vereecke, 609 F.3d at 401.
We find that the plaintiffs produced evidence that, if true, creates an inference
that Campbell’s hostility and obfuscatory actions toward the plaintiffs arose from
Holzemer’s decision to bypass the Permit Office and Campbell by going to Peete and
other city officials. While temporal proximity is key circumstantial evidence in this
case, it is not the only evidence presented by the plaintiffs to support this inference. A
rational jury could infer that Campbell’s actions constituted retaliation from a
combination of the chronological events between 2003 and 2007—e.g., denying,
granting, and again denying access to the Pyramid and, later, the FedEx Forum—and
Campbell’s alleged statements to Holzemer and Reed during the raid and in Downtown
Buggy’s interactions with the Permit Office regarding permit renewals.
Campbell argues that she never had knowledge of Holzemer’s conversation with
Peete, and, therefore, it could not have been a motivating factor for any actions she
allegedly took against the plaintiffs. The plaintiffs, however, presented evidence that,
if true, demonstrates that Campbell was aware that Holzemer and Downtown Buggy had
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 19
sought the help of other public officials and was displeased that Holzemer had gone over
her head. For example, Reed stated that Campbell warned Downtown Buggy not to
contact other city officials about the permit renewal. Additionally, Holzemer continued
to contact city officials throughout 2004 and 2005, after his initial conversation with
Peete. At one point, Holzemer allegedly received a letter from a city leader commending
Downtown Buggy’s services to the community and was instructed to take the letter to
the Permit Office. While these incidents do not demonstrate that Campbell knew of
Holzemer’s request of Peete specifically, they do suggest that the Permit Office—and,
therefore, Campbell—knew of Holzemer’s petitioning activity. Moreover, soon after
Holzemer spoke with Peete, Downtown Buggy received permission to operate near the
Pyramid. Neither Campbell nor the Permit Office interfered with this arrangement until
several months later, when Downtown Buggy was again denied access to profitable
downtown locations.
Finally, Campbell argues that she had multiple grounds upon which to deny the
plaintiffs a permit based on city ordinances and that these grounds prove that the adverse
act of non-renewal would have occurred regardless of any alleged retaliation. The
record before us, however, is devoid of any evidence that Campbell actually relied on
any of those other, alleged grounds. The issue in a First Amendment retaliation claim
is the grounds actually relied upon, not those that might have been relied upon by some
other government agent in a similar situation, and plaintiffs need only show that the
action was taken “at least in part because of the exercise of the protected conduct.”
Siggers-El, 412 F.3d at 699. Furthermore, even assuming that the record contained some
evidenec that non-renewal of the plaintiffs’ permit was based solely on their alleged
retaliatory actions, such as her involvement in the July raid, the threats alleged in Reed’s
affidavit, or the refusal to help facilitate permit renewal after November 2005, when all
felony charges against Holzemer had been dropped.
In summary, we find that Holzemer’s request for help from a city councilman
regarding difficulties that he was having operating his business constitutes a “petition”
for the purposes of the First Amendment’s Petition Clause. We find no distinction
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 20
between oral and written grievance when what was requested orally would clearly
constitute a petition if reduced to writing. Additionally, we find that the plaintiffs
produced evidence sufficient, if true, to support a claim of retaliation for exercising that
right to petition.
B.
Having found a constitutional violation, we must next determine whether that
right was clearly established at the time of the violation, Pearson, 129 S. Ct. at 818, and
whether the defendant acted objectively unreasonably “in light of the clearly established
constitutional rights,” Feathers, 319 F.3d at 848 (citation omitted). “For a right to be
clearly established, the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Leonard v.
Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (citation and internal quotation marks
omitted). “A right is clearly established if there is binding precedent from the Supreme
Court, the Sixth Circuit, the district court itself, or other circuits that is directly on
point.” Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002) (citation omitted).
However, “[t]his 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 light of pre-existing law the unlawfulness must be apparent.” Wilson v. Layne, 526
U.S. 603, 615 (1999) (quoting Anderson, 483 U.S. at 640). A public official could “still
be on notice that [his] conduct violates established law even in novel factual
circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). We must determine,
therefore, whether a reasonable city official could have believed that retaliating against
a local businessman because he sought the help of a local elected official “was lawful,
in light of clearly established law and the information the [official] possessed.” See
Wilson, 526 U.S. at 615.
We find that the case law of this court and of the Supreme Court demonstrates
that the right to petition a local, elected representative for assistance in dealing with local
government agencies was clearly established at the time that the relevant events took
place and that a reasonable local official would have known that retaliating against a
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 21
citizen exercising that right is unlawful. Moreover, a reasonable city official would have
known that the Constitution prohibits retaliation for a citizen’s exercise of his First
Amendment right to Free Speech, whether that speech takes written, oral, or another
form. See, e.g., Jenkins, 513 F.3d at 588 (“[T]he right to criticize public officials is
clearly protected by the First Amendment.”); see also Thomas v. Collins, 323 U.S. 516,
530 (1945) (“It was not by accident or coincidence that the rights to freedom in speech
and press were coupled in a single guaranty with the rights of the people peaceably to
assemble and to petition for redress of grievances. All these, though not identical, are
inseparable.”). Therefore, Campbell should have known that Holzemer’s underlying
conversation with Peete—whether it is categorized as protected petitioning or as free
speech activity—was an exercise of his First Amendment rights, and, therefore, any
retaliation against him for the exercise of those rights would constitute a constitutional
violation.
In seeking help from a city councilman, Holzemer’s petitioning activity reflects
the very origins of the Petition Clause. See Noerr, 365 U.S. at 137 (“In a representative
democracy such as this, these branches of government act on behalf of the people and,
to a very large extent, the whole concept of representation depends upon the ability of
the people to make their wishes known to their representatives.”); see also Gable,
201 F.3d at 770–71 (“[H]istorically the right of ‘petition’ was confined to seeking
legislative or judicial relief.” (citation omitted)). In Gable, we found that the Supreme
Court has recognized the broader scope of the Petition Clause by “clearly establish[ing]
that the submission of complaints and criticisms to nonlegislative and nonjudicial public
agencies like a police department constitutes petitioning activity protected by the petition
clause.” 201 F.3d at 771. We have also determined that, unlike in the public
employment context, there is no “public concern” requirement for private citizens who
petition their government. Id. at 772. Thus, Campbell should have known that any
“submission of complaints or criticisms” to either the Permit Office or to a city
councilman in furtherance of a private business interest constitutes constitutionally
protected petitioning activity.
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 22
Similarly, our case law clearly establishes that Campbell was on notice that
retaliation for any petitioning activity is unlawful. Id. (“[G]overnment retaliation for
filing a petition violates the literal language of the Petition Clause.”); see also Zilich,
34 F.3d at 365 (“The law is well settled in this Circuit that retaliation under color of law
for the exercise of First Amendment rights is unconstitutional, and ‘retaliation claims
have been asserted in various factual scenarios.” (citations omitted)).
Our case law thus demonstrates that the right to petition a local legislative
representative for assistance with economic interests was clearly established when
Holzemer spoke to Peete about Downtown Buggy’s problems. We agree with the
Seventh Circuit that “[n]othing in the First Amendment itself suggests that the right to
petition for redress of grievances only attaches when the petitioning takes a specific
form.” Pearson, 471 F.3d 741. We therefore likewise “decline to hold that legitimate
complaints lose their protected status simply because they are spoken” or “that the form
of expression—i.e., written or oral—dictates whether constitutional protection attaches.”
Id.
The Supreme Court has interpreted the Petition Clause to encompass more than
a written petition. In Edwards v. South Carolina, the Supreme Court found that a
peaceable demonstration that included holding placards and singing triggered the First
Amendment’s Free Speech, Petition, and Association clauses. 372 U.S. at 235–36. The
Court characterized the petitioning activity as “peaceably express[ing] their grievances
to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.”
Id. at 235 (internal quotation marks omitted). Like Holzemer, the Edwards petitioners
did not trigger a formal grievance mechanism, nor did they submit a formal written
complaint. Nevertheless, they successfully expressed their dissatisfaction with South
Carolina’s discriminatory laws to the government of South Carolina by placard and by
spoken word.
Similarly, Holzemer’s petitioning activity is nothing more or less than the local
equivalent of lobbying activity that the Supreme Court has repeatedly affirmed as
constitutionally protected petitioning activity. In a series of antitrust cases, the Supreme
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 23
Court held that lobbying and publicity campaigns by industry groups constitutes
protected petitioning activity. See Cal. Motor Transp. Co. v. Trucking Unltd., 404 U.S.
508, 510–11 (1972) (affirming Noerr and Pennington); Pennington, 381 U.S. at 670
(finding that the Petition Clause protects “a concerted effort to influence public
officials”); Noerr, 365 U.S. at 138 (finding a publicity campaign to influence
government constitutes protected petitioning). The Noerr Court found that the “mere
solicitation of government action with respect to the passage and enforcement of laws”
was petitioning activity not subject to the restrictions of the Sherman Act unless that
petitioning was a sham. Id. Requesting help from a city councilman in the enforcement
of local permit regulations is the equivalent in the local government context. See also
Pearson, 471 F.3d at 741 (“[I]t is possible that J-pod prisoners eschewed the formal
grievance process precisely because prison staff welcomed direct complaints. To then
hold that those staff have a free pass to retaliate on the basis of such complaints—which
would be protected if reduced to writing—makes no sense.”).
Therefore, “[n]o reasonable official could possibly believe that it is
constitutionally permissible to retaliate” against a private citizen by frustrating the
operation of his business simply because he sought help from his locally elected
representative. See id. And, no reasonable officer could believe that retaliation for the
exercise of a First Amendment right is permitted when that exercise takes the form of
speech but is not permitted when the same expression is written. Moreover, even though
we have not previously acknowledged the lack of distinction between oral and written
petitions in interpreting the scope of the Petitions Clause, the plaintiffs allege a violation
of clearly established First Amendment rights under the Free Speech Clause. See Zilich,
34 F.3d at 365 (“The law is well settled in this Circuit that retaliation under color of law
for the exercise of First Amendment rights is unconstitutional.” (citations omitted)).
Therefore, Campbell cannot avail herself of the excuse that just speaking with a public
official is not constitutionally protected petitioning activity. Holzemer’s underlying
conduct—speech—is protected regardless of whether it is categorized as a formal
petition or a citizen’s free speech. Consequently, officers of reasonable competence in
No. 09-5086 Holzemer, et al. v. City of Memphis, et al. Page 24
Campbell’s shoes would have known that her actions, if as alleged, were unlawful
retaliation, and we find that Campbell is not entitled to qualified immunity.
III.
For the foregoing reasons, we affirm the district court’s denial of qualified
immunity.