UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

Deborah S. Hunt 

Clerk

100 EAST FIFTH STREET, ROOM 540 

POTTER STEWART U.S. COURTHOUSE 

CINCINNATI, OHIO 45202-3988 

Tel. (513) 564-7000 

www.ca6.uscourts.gov

Filed: February 08, 2022 

Mr. David Joseph Carey 

American Civil Liberties Union of Ohio Foundation 

1108 City Park Avenue, Suite 203 

Columbus, OH 43206 

Ms. Sara Elizabeth Coulter 

Case Western Reserve University School of Law 

Milton A. Kramer Law Clinic Center 

11075 E. Boulevard 

Cleveland, OH 44106 

Ms. Lynnette Dinkler 

5335 Far Hills Avenue, Suite 123 

Dayton, OH 45429 

Ms. Freda Levenson 

ACLU of Ohio Foundation 

4506 Chester Avenue 

Cleveland, OH 44103 

Mr. John Stephen Teetor 

Mr. Andrew N. Yosowitz 

Teetor Westfall 

200 E. Campus View Boulevard, Suite 200 

Columbus, OH 43235 

Re: Case No. 20-3599, Michael Wood v. Chad Eubanks, et al

Originating Case No. : 3:18-cv-00168 

Dear Counsel, 

 The court today announced its decision in the above-styled case. 

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 Enclosed is a copy of the court's opinion together with the judgment which has been entered 

in conformity with Rule 36, Federal Rules of Appellate Procedure. 

Yours very truly, 

Deborah S. Hunt, Clerk

Cathryn Lovely 

Deputy Clerk

cc: Mr. Richard W. Nagel 

Enclosures 

Mandate to issue. 

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MICHAEL ANDREW WOOD,

Plaintiff-Appellant,

v.

CHAD EUBANKS, in his individual and official capacity 

as Sergeant of the Clark County Sheriff’s Department; 

MARIO TROUTMAN, JR., CHERISH STEIGER, MATTHEW

YATES, JACOB SHAW, and JOSEPH JOHNSON, in their 

individual and official capacities as Deputies of the 

Clark County Sheriff’s Office, 

Defendants-Appellees.

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No. 20-3599

Appeal from the United States District Court for the Southern District of Ohio at Dayton.

No. 3:18-cv-00168—Thomas M. Rose, District Judge.

Argued: November 2, 2021

Decided and Filed: February 8, 2022

Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Sara Elizabeth Coulter, CASE WESTERN RESERVE UNIVERSITY, Cleveland, 

Ohio, for Appellant. Andrew N. Yosowitz, TEETOR WESTFALL, LLC, Columbus, Ohio, for 

Appellees. David J. Carey, AMERICAN CIVIL LIBERTIES UNION OF OHIO 

FOUNDATION, Columbus, Ohio, for Amicus Curiae. ON BRIEF: Lynnette Dinkler, 

DINKLER LAW OFFICE, LLC, Dayton, Ohio, for Appellant. Andrew N. Yosowitz, TEETOR 

WESTFALL, LLC, Columbus, Ohio, for Appellees. David J. Carey, AMERICAN CIVIL 

LIBERTIES UNION OF OHIO FOUNDATION, Columbus, Ohio, Elizabeth Bonham, Freda J. 

Levenson, AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, 

Ohio, for Amicus Curiae.

>

RECOMMENDED FOR PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 22a0025p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

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No. 20-3599 Wood v. Eubanks, et al. Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Michael Wood wore a shirt bearing the words 

“Fuck the Police” to the county fair. According to Wood, the defendant police officers ordered 

him to leave and escorted him from the fairgrounds because of his shirt. While leaving, Wood 

made his displeasure known through numerous coarse insults levied at the police and the 

fairground’s administrator. The defendants then arrested Wood for disorderly conduct. After the 

charges were dismissed, Wood filed this § 1983 action against the officers, alleging false arrest 

and retaliation. The district court granted summary judgment to the defendants. We reverse 

because Wood’s speech was protected by the First Amendment.

I.

On July 29, 2016, Michael Wood went to the Clark County Fair wearing a shirt that said 

“Fuck the Police.” Wood explained that he “wore the shirt because [he] ha[s] the constitutional 

right to do so.” DE 55-2, Wood Dep., Page ID 465. While Wood had “no ill will or ill intent 

against law enforcement in general,” he took issue with how some of the county’s officers had 

treated him in the past. Id. Specifically, he said that Sergeant Chad Eubanks had previously 

stopped him for a traffic infraction and said “something along the lines of, ‘I’ll mess you up.’” 

Id. He also stated that he believed the Clark County Sheriff’s Office was “a cesspool” because 

so many officers who “were not honorable servants” had been fired and “more exist[ed]” in the 

department. Id. at 466. Wood also filed a Freedom of Information Act request regarding “a big 

fiasco about an affair, interoffice affair” in the department. Id. at 470. 

Wood said that he received a few comments about his shirt at the fair, including a woman 

who made a profane gesture at him. Wood also claimed that a sheriff’s deputy yelled to him as 

he passed, “Hey, Wood, I like your shirt.” Id. at 466. Wood “gave him a thumbs up” and said, 

“Yeah, I thought you might.” Id.

A few hours after Wood arrived at the fair, the sheriff’s department received a call 

complaining about Wood’s shirt. Deputies Jacob Shaw, Mario Troutman, and Matthew Yates 

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approached Wood and asked him to identify himself, but Wood declined to do so. Yates 

allegedly responded that the officers “know who you are.” Id. at 468. Wood attempted to record 

the interaction but stopped when “Troutman started laughing and pointing and said, ‘Huh, your 

light went out. You’re not recording anymore.’” Id. At that point, Wood walked away.

Several hours later, the officers were called to one of the buildings on the fairgrounds. 

Shaw, Troutman, and Yates were joined by Eubanks and deputies Joseph Johnson and Cherish 

Steiger. Dean Blair, the Executive Director of the Clark County Fairgrounds, allegedly 

approached Wood first, saying, “Where’s this shirt? I want to see this shirt.” Id. 

Troutman, Yates, and Johnson wore body cameras and filmed the subsequent events. As 

Yates walked closer to Wood and Blair, two other officers entered the building from the opposite 

side. Wood was no longer wearing the profane shirt, and Blair asked Wood whether he had 

changed. Wood did not answer but asked Blair and the officers if he had committed a crime or 

was being detained. Blair replied that he wanted Wood to leave, that Wood was “not welcome,” 

and that Wood needed to get off the fairgrounds. Yates Cam #1, 00:40–45; Johnson Cam, 

00:13–00:25. Wood agreed to leave if the three-dollar entrance fee was refunded. Blair gave 

Wood five dollars and told him to “keep the change” and never come back. Yates Cam #1, 

00:55–45. Wood replied, “I have change for you, sir,” but Blair refused to accept the money, 

telling Wood that he “wouldn’t take [Wood’s] money” and didn’t “want [Wood] around.” Id. at 

00:58–1:14. 

Wood asked Blair whether he “realized what [Wood was] doing [wa]s a constitutionally 

protected activity.” Id. at 1:13–1:21. Blair replied, “Not in my home.” Id. Wood responded, 

“Not in your home? This isn’t your home. This is public property.” Id. Eventually, Blair asked 

the officers, “What [do] I have to say to him?” and reiterated to Wood, “Get off my grounds.” 

Id. at 1:24–30. Wood responded, “Very well. I’ll be talking to my attorney about this.” Id. at 

1:27–31.

Troutman then allegedly pushed Wood’s shoulder, and Wood said, “You ain’t pushing 

me nowhere. I’ll leave.” DE 55-2, Wood Dep., Page ID 469; Yates Cam #1, 1:35–42; Johnson 

Cam, 1:17–22. Wood turned and began walking toward the open door, flanked by Blair and 

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several officers. While walking, Wood turned to face the officers and repeatedly asked whether 

they had taken an oath to uphold the Constitution. Blair continued to repeat that Wood was “not 

welcome in [his] house.” Yates Cam #1, 2:00–2:05. At this point, Wood told the officers not to 

put their hands on him and that Troutman had committed battery.

As the officers escorted Wood outside, one of them told Wood that he had “been given an 

order to vacate the property. So you’re leaving.” Troutman Cam #1, 00:32–35. Wood asked 

whether that was “a lawful order.” Yates Cam #1, 2:10–18; Troutman Cam #1, 00:30–35. Blair 

and Wood exited the building and continued arguing, with Wood repeatedly stating that the 

fairgrounds were public property and Blair insisting that Wood leave. When Blair told Wood 

that he needed to leave because he had gotten his money back, Wood replied, “Five dollars ain’t 

shit to me, bro . . . Who the fuck do you think you are?” Yates Cam #1, 2:40–56; Troutman Cam 

#1, 1:10–1:15. One of the officers spoke into his radio that they were “escorting . . . [Wood] to 

the front gate.” Johnson Cam 2:29–35.

While walking, Wood pointed behind him and said, “Look at these thugs with badges 

behind me. How many is there?” Yates Cam #1, 2:57–3:00. Spinning around, Wood counted 

“1, 2, 3, 4, 5, 6 motherfuckers. Six bitch ass fucking pigs.” Id. at 3:00. Wood appeared to stop, 

prompting one officer to tell him to “keep walking.” Id. at 3:01–05. Wood complied but 

continued speaking. “Fucking thugs with guns that don’t uphold the United States Constitution. 

Fuck all you. You dirty rat bastards.” Id. at 3:05–14; Troutman Cam #1, 3:00–31. Wood then 

turned to Steiger and said, “And you, you’re a fucking thief, I’ve heard about you.” Yates Cam 

#1, 3:13–17; Johnson Cam, 2:53–56.

Wood stopped at a tent to pick up his belongings, and an officer said, “this way, sir, sir.” 

Yates Cam #1, 3:26–30; Troutman Cam #1, 1:44–48. Wood replied, “Fucking thugs with badges 

. . . thugs with badges.” Yates Cam #1, 3:32–38; Troutman Cam #1, 1:50–2:00. As the officers 

directed him forward, Wood exclaimed that “the United States Constitution doesn’t apply at the 

Clark County fairgrounds, people.” Yates Cam #1, 3:40–46; Troutman Cam #1, 2:00–05.

Wood and the officers disagreed about where Wood should exit. Wood stated that he 

was “going out the back gate” because he had come in that way. Yates Cam #1, 3:49–59; 

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Troutman Cam #1, 2:07–13. The officers insisted on the front gate, and one officer told Wood 

that they were “not going to walk all the way to the back gate.” Yates Cam #1, 3:55–57. 

Wood replied, “Then that’s your fucking fat-ass problems, motherfucker, I’m leaving.” Id. at 

3:57–4:02; Johnson Cam, 3:35–40. Wood turned and walked toward the back gate, with Blair 

and all six deputies following. 

The officers began discussing whether they could arrest Wood for disorderly conduct and 

disturbing the peace. One officer asked another “how long [they] [were] going to allow” Wood 

to keep talking. Johnson Cam, 4:00–03. That officer replied that “we could do disorderly 

conduct.” Id. at 4:02–06. Blair, catching up with Wood, turned and said to the officers that 

Wood was “disturbing my peace” and shouted, “Charge him!” Yates Cam #1, 4:20–22; 

Troutman Cam #1, 2:37–43. One officer asked the others what they should do, commenting that 

Wood was “talking the whole way out the door, he’s still talking.” Yates Cam #1, 4:40–50; 

Troutman Cam #1, 3:00–05. Another officer said, “Well, make an arrest,” to which another 

asked, “Make an arrest?” Yates Cam #1, 4:49–52. 

Blair and Wood walked in front of the officers, continuing to argue. Troutman Cam #1, 

3:15–30. Although difficult to discern from the audio, Wood asked Blair, “Have you ever 

fucking served this country?,” to which Blair replied, “Yes, asshole.” Id. at 3:13–24. Wood 

retorted, “Bullshit. In what? The Air Force? Fucking flyboy.” Id. Wood then turned around 

and said to Troutman, “Look at this bullshit. You’re one big man ain’t you, motherfucker. You 

got eight pussies with badges behind you.” Id. at 3:40–47. Blair commented, “You got a lot of 

mouth.” Id. at 3:49–50. Wood replied that Troutman “wants to fucking batter [him],” and Wood 

planned to press charges. Id. at 3:50–53. Blair turned to Troutman and said, “I’m your witness. 

That’s bullshit.” Id. at 3:53–58. Wood continued to insist that Troutman had “touched [him]” 

and asked whether they knew “what the legal definition of battery is.” Id. at 3:57–4:00. Blair 

repeated, “You got a lot of mouth, boy.” Id. at 4:00–03. Wood retorted, shouting “Do you know 

what the legal definition of battery is, motherfucker? Then try to find out.” Id. at 4:03–08.

At that point, the officers arrested Wood for disorderly conduct. On the way to the jail, 

an officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but you 

want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. He was charged with 

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disorderly conduct, Ohio Rev. Code Ann. § 2917.11(A)(2), and obstructing official business, 

§ 2921.31. The prosecutor later dismissed both charges, apparently because the “State [was]

unable to locate necessary lay witnesses to [the] incident in time for trial” to show that Wood’s 

“words and conduct amounted to ‘fighting words’” under the First Amendment. DE 6-6, Pretrial 

Rev. Form, Page ID 84; DE 35, Prosecutor Email, Page ID 262.

Wood filed this 42 U.S.C. § 1983 action against all six officers involved in his arrest 

(Eubanks, Shaw, Troutman, Yates, Johnson, and Steiger), alleging numerous constitutional 

violations. The defendants moved for summary judgment, and the magistrate judge 

recommended granting the motion as to all but two of Wood’s claims—unlawful arrest and First 

Amendment retaliation. Wood v. Eubanks, R. & R., No. 3:18-CV-168, 2020 WL 635652, at *16 

(S.D. Ohio Feb. 11, 2020). The district court disagreed in part, concluding that the officers were 

protected by qualified immunity on the false arrest claim and that there was insufficient evidence 

of retaliation, so the court granted summary judgment to the defendants on all claims. Wood v. 

Eubanks, 459 F. Supp. 3d 965, 980 (S.D. Ohio 2020). Wood timely appealed the dismissal of his 

false arrest and retaliation claims.

II.

We review a grant of summary judgment de novo. Randolph v. Ohio Dep’t of Youth 

Servs., 453 F.3d 724, 731 (6th Cir. 2006). Summary judgment is proper if “there is no genuine 

dispute as to any material fact” and “the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). We view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III.

Wood’s first claim is for false arrest. “To prevail on a false arrest claim under § 1983, ‘a 

plaintiff must prove that the arresting officer lacked probable cause to arrest the plaintiff.’” 

Tlapanco v. Elges, 969 F.3d 638, 652 (6th Cir. 2020) (brackets and internal quotation marks 

omitted). Therefore, “[a] showing of ‘probable cause provides a complete defense to a claim of 

false arrest.’” Id. (internal quotation marks omitted). An officer is entitled to qualified immunity 

if he reasonably believed that the arrest was lawful, even if that belief was erroneous. Barton v. 

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Martin, 949 F.3d 938, 950 (6th Cir. 2020). “[S]tate law defines the offense for which an officer 

may arrest a person, while federal law dictates whether probable cause existed for an arrest.” 

Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir. 2011). Because there was no probable 

cause to arrest Wood for his conduct, and because Wood’s right to be free from arrest was 

clearly established, the officers are not entitled to qualified immunity.

A.

Wood was arrested for disorderly conduct, Ohio Rev. Code Ann. § 2917.11(A)(2), and 

obstructing official business, § 2921.31. The only issue is whether the officers had probable 

cause to arrest Wood for disorderly conduct.1 Ohio’s statute “requires two elements to commit 

disorderly conduct.” Osberry v. Slusher, 750 F. App’x 385, 394 (6th Cir. 2018) (internal 

citations omitted). “First, a person must ‘recklessly cause inconvenience, annoyance, or alarm to 

another,’” and “[s]econd, the person must cause this disturbance by engaging in specific 

enumerated conduct.” Id. Here, the alleged specific enumerated conduct is “[m]aking 

unreasonable noise or an offensively coarse utterance, gesture, or display or 

communicating unwarranted and grossly abusive language to any person.” Ohio Rev. Code Ann. 

§ 2917.11(A)(2).

Ohio’s statute “requires two elements to commit disorderly conduct.” Osberry v. 

Slusher, 750 F. App’x 385, 394 (6th Cir. 2018) (internal citations omitted). “First, a person must 

‘recklessly cause inconvenience, annoyance, or alarm to another,’” and “[s]econd, the person 

must cause this disturbance by engaging in specific enumerated conduct.” Id. Here, the alleged 

specific enumerated conduct is “[m]aking unreasonable noise or an offensively coarse utterance, 

gesture, or display or communicating unwarranted and grossly abusive language to any person.” 

Ohio Rev. Code Ann. § 2917.11(A)(2). 

The Ohio Supreme Court has clearly established that a person may not be punished for 

disorderly conduct “unless the words spoken are likely, by their very utterance, to inflict injury 

1Defendants did not raise the obstruction charge as a basis for summary judgment. And, although they

argued probable cause existed to arrest Wood for disorderly conduct and littering, § 3767.32(A), because Wood 

“threw his refunded money on the ground,” DE 31, Mot. for Summ. J., Page ID 205, 208, the district court did not 

address the littering argument and the defendants do not press it on appeal. 

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or provoke the average person to an immediate retaliatory breach of the peace.” State v. 

Hoffman, 387 N.E.2d 239, 242 (Ohio 1979). In other words, the statute “require[s] that the 

speech in question constitute ‘fighting words.’” D.D. v. Scheeler, 645 F. App’x 418, 425 (6th 

Cir. 2016) (citing City of Cincinnati v. Karlan, 314 N.E.2d 162, 164 (Ohio 1974)). Fighting 

words—as defined by the Supreme Court in Chaplinsky v. New Hampshire—are words that “by 

their very utterance inflict injury or tend to incite an immediate breach of the peace.” 315 U.S. 

568, 572 (1942). So Wood “could only act with the required mental state for this crime—

recklessness—if ‘with heedless indifference to the consequences,’ []he engaged in conduct or 

speech likely ‘to inflict injury or provoke the average person to an immediate retaliatory breach 

of the peace.’” Osberry, 750 F. App’x at 394 (quoting Goodwin, 781 F.3d at 333). “The 

question is whether, under the circumstances, it is probable that a reasonable police officer would 

find [the] language and conduct annoying or alarming and would be provoked to want to respond 

violently.” Goodwin v. City of Painesville, 781 F.3d 314, 333 (6th Cir. 2015) (quoting Warren v. 

Patrone, 600 N.E.2d 344, 345 (Ohio Ct. App. 1991)). 

We have explained that, since the Chaplinsky decision, its “‘fighting words’ doctrine has 

become ‘very limited.’” Greene v. Barber, 310 F.3d 889, 896 (6th Cir. 2002) (quoting Sandul v. 

Larion, 119 F.3d 1250, 1255 (6th Cir. 1997)). While calling a city marshal “a God damned 

racketeer” and “a damned Fascist” constituted fighting words in Chaplinsky, “[s]tandards of 

decorum have changed dramatically since 1942, . . . and indelicacy no longer places speech 

beyond the protection of the First Amendment.” Id. at 895–96 (citation omitted). “The fighting 

words exception is very limited because it is inconsistent with the general principle of free 

speech recognized in our First Amendment jurisprudence.” Baskin v. Smith, 50 F. App’x 731, 

736 (6th Cir. 2002). Therefore, “profanity alone is insufficient to establish criminal behavior.” 

Wilson v. Martin, 549 F. App’x 309, 311 (6th Cir. 2013); see also D.D., 645 F. App’x at 425 

(“Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or 

even shouting, of distasteful words.”); United States v. Gustafson, 30 F.3d 134 (Table), 1994 WL 

276883, at *3 (6th Cir. 1994) (“The [Ohio] cases are clear that use of profanity alone or 

generalized derogatory statements are insufficient to support a conviction for disorderly 

conduct.”). 

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Further, both the Supreme Court and this court have made clear that “police officers 

. . . ‘are expected to exercise greater restraint in their response than the average citizen.’” Barnes 

v. Wright, 449 F.3d 709, 718 (6th Cir. 2006) (quoting Greene, 310 F.3d at 896). “Police officers

are held to a higher standard than average citizens, because the First Amendment requires that 

they ‘tolerate coarse criticism.’” D.D., 645 F. App’x at 425 (quoting Kennedy, 635 F.3d at 216); 

see also City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The freedom of individuals 

verbally to oppose or to challenge police action without thereby risking arrest is one of the 

principal characteristics by which we distinguish a free nation from a police state.”).

Against that backdrop, the defendants argue that they had probable cause to arrest Wood 

for disorderly conduct because “[h]is language consisted of personally abusive epithets” that 

“constitute fighting words.” CA6 R. 26, Appellees’ Br., at 26. Wood referred to all six officers 

as, variously, “thugs with badges,” “fucking thugs with guns,” and “fucking thugs with badges.” 

Yates Cam #1, 2:57–3:10, 3:32–38; Troutman Cam #1, 3:00–31. Wood deployed 

“motherfuckers” more than once. Yates Cam #1, 3:00, 3:57–4:02; Johnson Cam, 3:35–40; 

Troutman Cam #1, 3:40–47, 4:03–08. Other insults included “six bitch ass fucking pigs,” “fuck 

all you,” “dirty rat bastards,” and “eight pussies with badges.” Yates Cam #1, 3:00, 3:05–14, 

3:57–4:02; Troutman Cam #1, 3:00–31, 3:40–47; Johnson Cam, 3:35–40. In addition to his 

general commentary about the officers, Wood spoke to four people specifically. To Blair, Wood 

said, “Who the fuck do you think you are,” called Blair a “fucking flyboy,” and asked whether 

Blair knew what “the legal definition of battery is motherfucker.” Troutman Cam #1, 1:10–1:15; 

3:13–24; 4:03–08. Wood at one point called Steiger, “a fucking thief.” Yates Cam #1, 3:13–17; 

Johnson Cam 2:53–56. Wood also said to one of the officers, “Then that’s your fucking fat-ass 

problems, motherfucker.” Yates Cam #1, at 3:57–4:02. And shortly before Wood was arrested, 

he turned to Troutman and said, “You’re one big man ain’t you, motherfucker.” Troutman Cam 

#1, 3:40–47. 

We have routinely protected the use of profanity when unaccompanied by other conduct 

that could be construed as disorderly. See Sandul, 119 F.3d at 1255 (“[T]he use of the ‘f-word’ 

in and of itself is not criminal conduct.”). In Greene v. Barber, we explained that whether the 

plaintiff had “a constitutionally protected right” to call police officer Lt. Barber “an ‘asshole’ and 

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castigate him as ‘stupid’ . . . depend[ed] on the time, place, and manner in which Mr. Greene [the 

plaintiff] so expressed himself.” 310 F.3d at 895. While “[i]t [wa]s clear that the Constitution 

gave Mr. Greene no license to interrupt the transaction of public business by loud 

animadversions on Lt. Barber’s personality and mental capacity,” we held that “standing alone, 

the fact that Mr. Greene’s remarks were unflattering to Lt. Barber clearly gave Barber no license 

to abridge Greene’s freedom to speak as he did.” Id. We held that “Mr. Greene’s 

characterization of Lt. Barber as an ‘asshole’ was not egregious enough to trigger application of 

the ‘fighting words’ doctrine” because “it is hard to imagine Mr. Greene’s words inciting a 

breach of the peace by a police officer whose sworn duty it was to uphold the law.” Id. at 896. 

Likewise, we held in D.D. v. Scheeler that saying “fuck the police” and referring to officers as 

“useless” and “idiots” “did not rise to the level of ‘fighting words’” in part because the epithets 

were “no worse than the speech protected” in a previous case, were not “beyond ‘coarse 

criticism,’” and were not “designed to provoke” the officer. 645 F. App’x at 420, 425–27. 

We have held that similar speech is protected by the First Amendment when unaccompanied by 

other conduct,2 which is consistent with the rule that “[f]its of rudeness or lack of gratitude may 

violate the Golden Rule” but are not “illegal,” “punishable[,] or for that matter grounds for a 

seizure.” Cruise-Gulyas v. Minard, 918 F.3d 494, 495 (6th Cir. 2019) (extending middle finger 

to police officer provided no legal basis to stop plaintiff). 

We have been equally clear that behavior involving more than mere epithets provides 

probable cause for a disorderly conduct arrest. In Harris v. United States, a man approached a 

Drug Enforcement Agency agent in an airport and said, “I don’t appreciate you and your 

2

See Cruise-Gulyas, 918 F.3d at 496; Hagedorn v. Cattani, 715 F. App’x 499, 506 (6th Cir. 2017) (calling

officer “asshole” and “idiot” were not fighting words); Wilson, 549 F. App’x at 311 (officers “patently without 

probable cause to arrest” an “11 year-old girl [who] raised her middle fingers toward an adult male police officer” 

because “[t]hose circumstances did not create a situation where violence was a likely result”); Kennedy, 635 F.3d at 

211, 218 n.5 (calling officer a “son of a bitch” and a “fat slob” “seems to be the type [of speech] that the First 

Amendment protects” because “[e]ven crass language used to insult police officers does not fall within the ‘very 

limited’ unprotected category of ‘fighting words’” (quoting Greene, 310 F.3d at 892–93, 896)); Zulock v. Shures, 

441 F. App’x 294, 305–07 (6th Cir. 2010) (no probable cause to arrest man for disorderly conduct under Ohio law 

where man said “‘fuck you’ four or five times” to police officer while holding knife); Leonard v. Robinson, 

477 F.3d 347, 351, 359 (6th Cir. 2007) (telling elected officials “that’s why you’re in a God damn lawsuit” “was not, 

as a matter of law ‘likely to cause a fight’” (citation omitted)); Barnes, 449 F.3d at 718 (“using [foul] language, 

cussin’, ranting and raving about [a] prior [dispute]” to police officer does not constitute fighting words because 

even such strong language “is accorded the full protection of the First Amendment”); Sandul, 119 F.3d at 1252, 

1256 (shouting “fuck you” and extending middle finger to abortion protesters was protected by First Amendment).

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monkeys following me and if you keep it up I’ll rip your head off.” 422 F.3d 322, 325 (6th Cir. 

2005). Another officer who overheard the comment approached the man and he pushed her. 

Speech aside, “by threatening the officers with physical violence and by making threatening 

gestures,” the man “provided [the officers] with the necessary probable cause to charge him with 

disorderly conduct.” Id. at 330; see also Gustafson, 30 F.3d 134, at *3 (sufficient evidence to 

support judgment that defendant was guilty of disorderly conduct where he “waved his finger 

approximately one inch from the faces of [the officers] after being warned to stop”); Hagedorn v. 

Cattani, 715 F. App’x 499, 506 (6th Cir. 2017) (probable cause to arrest a woman because her 

tirade was “inappropriately loud” and disturbed neighbors, but not because she employed 

profanities). Similarly, we have repeatedly held that the state can punish an “individual whose

act of speaking, by virtue of its time and manner, plainly obstructed ongoing police activity 

involving a third party.” King v. Ambs, 519 F.3d 607, 614 (6th Cir. 2008); see also Schliewe v. 

Toro, 138 F. App’x 715, 721–23 (6th Cir. 2005) (“[I]n this case it is abundantly clear that Mr. 

Schliewe was arrested for bleeding on those around him and threatening Officer Toro, regardless 

of the fact that he used profanity.”). 

While Wood’s speech was profane, the circumstances did not create a situation where 

violence was likely to result. None of the officers reacted with violence or appeared to view 

Wood’s words as “an invitation to exchange fisticuffs.” Texas v. Johnson, 491 U.S. 397, 409 

(1989); see also Cohen v. California, 403 U.S. 15, 20 (1971) (speech not fighting words where 

there was “no showing that anyone who saw Cohen was in fact violently aroused or that 

appellant intended such a result”); Bible Believers v. Wayne Cnty., 805 F.3d 228, 246 (6th Cir. 

2015) (en banc) (concluding that derogatory speech about Islam did not qualify as fighting 

words, in part, because “the average individual attending the Festival did not react with violence, 

and of the group made up of mostly adolescents, only a certain percentage engaged in bottle 

throwing when they heard the proselytizing”). “And if violence had resulted, the officers would 

be facing more claims than they are now.” Wilson, 549 F. App’x at 311. 

We therefore conclude that the First Amendment protected Wood’s speech and thus his 

disorderly conduct arrest lacked probable cause. This conclusion is consistent with those of 

other circuits to have considered similar issues. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 

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2003) (“[T]he First Amendment protects even profanity-laden speech directed at police officers. 

Police officers reasonably may be expected to exercise a higher degree of restraint than the 

average citizen and should be less likely to be provoked into misbehavior by such speech.” 

(citing City of Houston, 482 U.S. at 461)); United States v. Poocha, 259 F.3d 1077, 1082 (9th 

Cir. 2001) (holding that yelling “fuck you” at an officer was not likely to provoke a violent 

response and “[c]riticism of the police, profane or otherwise, is not a crime”); Buffkins v. City of 

Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (plaintiff’s “use of the word ‘asshole’ could not 

reasonably have prompted a violent response from the arresting officers”).

Relying on Ohio state court decisions applying Chaplinsky, defendants contend (and the 

district court agreed) that swearing at a police officer, alone, constitutes disorderly conduct. See, 

e.g., State v. Wood, 679 N.E.2d 735, 740 (Ohio 1996) (telling a police officer “‘fuck you,’ either

verbally or via an extended digit,” could “constitute fighting words”). Although Ohio’s state law 

appears discordant with our own, see, e.g., Sandul, 119 F.3d at 1255–56; Wilson, 549 F. App’x at 

310; Cruise-Gulyas v. Minard, 918 F.3d 494, 496 (6th Cir. 2019), cert. denied, 140 S. Ct. 116 

(2019), our caselaw requires that—for the purposes of examining a claim of qualified immunity 

from a § 1983 cause of action—we turn only to federal court precedent for evaluating whether 

police officers have probable cause to effectuate an arrest, see Kennedy, 635 F.3d at 215 (“[S]tate 

law defines the offense for which an officer may arrest a person, while federal law dictates 

whether probable cause existed for an arrest.”); Sandul, 119 F.3d at 1256 (holding that 

“protected speech cannot serve as the [sole] basis for a violation” of any statute).

The defendants also argue that “Wood committed disorderly conduct while continually 

yelling and cursing at Dean Blair, a civilian.” CA6 R. 26, Appellees’ Br., at 37. The defendants 

cite a portion of the exchange where Wood appeared to question Blair’s military service, but the 

defendants do not argue that questioning a person’s military credentials amounts to fighting 

words.3 Rather, they focus on Wood’s use of curse words, his proximity to Blair, and his 

“hostile and agitated” demeanor. Id. at 38. 

3Nor could they raise this argument now because they did not press it in the district court.

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As an initial matter, although the defendants refer to Blair as a civilian, they do not 

challenge the district court’s determination that “Blair is a quasi-state official, acting as the 

Executive Director of the Clark County Fairgrounds.” Wood, 459 F. Supp. 3d at 977 n.3. As for 

the profanity, Wood called Blair a “fucking flyboy” and, like the officers, a “motherfucker.” 

Troutman Cam #1, 3:13–24; 4:03–08. These words alone do not provide probable cause to arrest 

Wood for disorderly conduct. As for Wood’s proximity to Blair, it was Blair who followed 

Wood, matching his pace as Wood headed toward the fairgrounds exit. And when Wood asked 

Blair whether he knew “what the legal definition of battery is, motherfucker,” Blair was walking 

ahead of Wood, with Troutman between them, and they were discussing whether Troutman had 

touched Wood. Troutman Cam #1, 4:03–08. Wood did not step closer to Blair or make any 

gesture that could be construed as threatening. Neither proximity nor Wood’s demeanor 

provided probable cause for arrest.

Regarding the claim that the officers had probable cause to arrest Wood for “yelling” and 

“screaming” at Blair, the defendants provide no further argument or any case citations as to how 

that constituted disorderly conduct. Forfeiture aside, see United States v. Johnson, 440 F.3d 832, 

846 (6th Cir. 2006), the claim is meritless. Even assuming, as the defendants argue, that the 

“level of noise [Wood] was making could itself violate Section (A)(2),” under the statute’s clear 

language, “a disorderly conduct charge against h[im] can stand only if []he ‘recklessly caused 

inconvenience, annoyance, or alarm’ by ‘unreasonably’ making the noise.” Goodwin, 781 F.3d 

at 333–34 (quoting Ohio Rev. Code Ann. § 2917.11(A)(2)).

From Wood’s telling, Blair ordered him removed from the fairgrounds based on his 

“Fuck the Police” shirt. Blair followed Wood to the exit and continued to argue with him. Blair 

then offered to serve as Troutman’s “witness” if Wood pursued battery charges against 

Troutman. While Wood may have spoken at an elevated volume, nothing in this record indicates 

that anyone complained. Cf. Hagedorn, 715 F. App’x at 506 (finding sufficient basis for arrest 

where officer “provided evidence” of neighbor’s complaint “which would allow a reasonable 

person to believe that [the plaintiff] was guilty of making unreasonable noise . . . despite the 

protected nature of her speech”). Given these facts, Wood’s conduct was not “sufficiently 

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reckless and unreasonable to allow an officer to reasonably believe there was probable cause to 

arrest h[im].” Goodwin, 781 F.3d at 334. 

The case presenting the most similar facts to this one is Henry v. City of Flint, 814 F. 

App’x 973 (6th Cir. 2020). There, a man and officer engaged in a heated argument stemming 

from the officer’s investigation of a neighboring abandoned house. The man called the officer a 

number of profane names, including “asshole,” “smart butt,” “dumbass,” “motherfucker,” “punk 

motherfucker,” and “bitch,” in addition to telling the officer to “get the fuck on,” “fuck you,” and 

to “do your damn job.” Id. at 975–77. The case involved a factual dispute as to whether the 

neighbor turned on a light during the kerfuffle because “[a]bsent the light being turned on as a 

possible sign of disturbance to others, there was no ground for believing there was a basis for 

arresting [the plaintiff]—other than his profanity and verbal abuse of the officers, which we have 

clearly held is not, standing alone, a basis for an arrest.” Id. at 981 (citing Greene, 310 F.3d at 

896–97; Kennedy, 635 F.3d at 215–16). We denied summary judgment to the officer because 

absent the light, “a reasonable jury could find that no reasonable officer could have thought there

was such a disturbance, rather than simply a belligerent, profane, and uncooperative person.” Id. 

at 982. In the absence of any evidence that Wood was unreasonably loud, there was no probable 

cause to arrest Wood for his profanities alone.

Finally, the defendants argue that there was probable cause to arrest Wood for disorderly 

conduct because Wood “defied the Deputies’ orders” when he insisted on exiting through the 

back gate rather than the front. CA6 R. 26, Appellees’ Br., at 26. But they provide no further 

argument or any case citations on this point, rendering it forfeited. See Johnson, 440 F.3d at 846. 

And, regardless, refusing to follow police instructions constitutes obstructing official business, 

Ohio Rev. Code Ann. § 2921.3, which the defendants did not pursue either in the district court or 

on appeal.

For these reasons, the officers lacked probable cause when they arrested Wood.

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B.

The officers are not entitled to qualified immunity if the constitutional right they violated 

“was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 

731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Wood’s right to be 

free from arrest under these circumstances was clearly established at the time. 

In Henry v. City of Flint, we denied qualified immunity because “there was no ground for 

believing there was a basis for arresting [the plaintiff]—other than his profanity and verbal abuse 

of the officers, which we have clearly held is not, standing alone, a basis for an arrest.” 814 F. 

App’x at 981. Henry was decided in 2020, so the defendants contend it cannot clearly establish 

Wood’s right to be free from arrest in 2016. But Henry did not represent a change in the law. 

Henry relied on our decisions in Greene v. Barber and Kennedy v. City of Villa Hills, which we 

decided in 2002 and 2011, respectively. Id. at 982. In Greene, we held that the plaintiff’s “right 

not to be arrested for insulting a police officer [was] ‘clearly established.’” 310 F.3d at 897. 

The same goes for Kennedy. Although the plaintiff in that case “used coarse language,” he “did 

not pose [a] risk of public alarm” because there were “no third parties . . . whom an arrest would 

protect” or whom the plaintiff disturbed. 635 F.3d at 217. We said then that “the First 

Amendment requires . . . police officers [to] tolerate coarse criticism,” and “[e]ven crass 

language used to insult police officers does not fall within the ‘very limited’ unprotected 

category of ‘fighting words.’” Id. at 214, 216, 218 n.5. 

Beyond Greene and Kennedy, we had already made clear by 2016 that profanity alone is 

insufficient to constitute fighting words under Ohio’s disorderly conduct statute. See D.D., 645 

F. App’x at 425, 427 (denying qualified immunity to officer on false arrest claim because

“Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or 

even shouting, of distasteful words,” and “no competent officer would have found probable 

cause to arrest [the plaintiff]”); Leonard, 477 F.3d at 359 (“The Supreme Court has held that a 

state may not make a ‘single four-letter expletive a criminal offense.’” (quoting Cohen, 403 U.S. 

at 26)); McCurdy v. Montgomery Cnty., 240 F.3d 512, 515, 520 (6th Cir. 2001) (finding that 

plaintiff’s “right to challenge verbally” officer’s conduct, including stating “what the fu*k do 

you want” and “what the fu*k is your job,” was “well-established”); Sandul, 119 F.3d at 1256 

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(denying qualified immunity because there should be “little doubt in the mind of a reasonable 

officer that the mere words and gesture ‘f—k you’ are constitutionally protected speech”); City 

of Houston, 482 U.S. at 462–63 & n.12 (“The freedom of individuals verbally to oppose or 

challenge police action without thereby risking arrest is one of the principal characteristics by 

which we distinguish a free nation from a police state,” a “conclusion [that] finds a familiar echo 

in the common law.”). Given this backdrop, it was clearly established in 2016 that there was no 

probable cause to arrest Wood for disorderly conduct. 

IV.

Wood also asserts a First Amendment retaliation claim. To prevail, Wood must 

demonstrate three elements: (1) “that he engaged in constitutionally protected speech,” (2) “that 

he suffered an adverse action likely to chill a person of ordinary firmness from continuing to 

engage in protected speech,” and (3) “that the protected speech was a substantial or motivating 

factor in the decision to take the adverse action.” Westmoreland v. Sutherland, 662 F.3d 714, 

718 (6th Cir. 2011).4 The district court granted summary judgment to the defendants after 

concluding that Wood had not suffered an adverse action and “there [wa]s no evidence of 

retaliatory animus from Defendants based on Plaintiff’s t-shirt.” Wood, 459 F. Supp. 3d at 978.

As to the first element, the defendants do not contest that Wood’s shirt was 

constitutionally protected speech, nor could they. Wood’s “Fuck the Police” shirt was clearly 

protected speech. “It is well-established that ‘absent a more particularized and compelling 

reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, 

make the simple public display of a four-letter expletive a criminal offense.’” Sandul, 119 F.3d 

at 1254–55 (alterations omitted) (quoting Cohen, 403 U.S. at 26). 

On the second element, Wood demonstrated that he suffered an adverse action because 

the police officers escorted him out of the fairgrounds. Although we have held that a Fourth 

Amendment seizure amounts to an adverse action, Cruise-Gulyas, 918 F.3d at 497, Wood does 

4The Supreme Court recently announced an additional requirement, holding that “a plaintiff must plead and

prove the absence of probable cause for the arrest” to sustain a First Amendment retaliation claim. Nieves v. 

Bartlett, 139 S. Ct. 1715, 1724–25 (2019). As we have concluded, Wood satisfied this requirement because 

probable cause did not exist for Wood’s arrest.

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not challenge the magistrate’s determination—which the district court adopted—that he was not 

seized until the moment of arrest. See R. & R., 2020 WL 635652, at *8; Wood, 459 F. Supp. 3d 

at 980. To determine whether removing Wood from the fairgrounds was an adverse action, we 

consider whether the action “would ‘deter a person of ordinary firmness’ from the exercise of the 

right at stake.” Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc) (citation 

omitted); see also Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (applying same standard 

outside of prison context). 

We have “emphasize[d] that while certain threats or deprivations are so de minimis that 

they do not rise to the level of being constitutional violations, this threshold 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. While “[m]ere 

threats . . . are generally not sufficient to satisfy the adverse action requirement,” Mitchell v. 

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004), acts that are more than a “petty slight[] or 

minor annoyance[]” suffice, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). 

See Benison v. Ross, 765 F.3d 649, 660 (6th Cir. 2014) (withholding an educational transcript); 

Paeth v. Worth Twp., 483 F. App’x 956, 963 (6th Cir. 2012) (issuing a stop work order); 

Campbell v. Mack, 777 F. App’x 122, 135 (6th Cir. 2019) (over-tightening a detainee’s 

handcuffs); see also Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 n.8 (1990) (noting 

that the First Amendment “already protects state employees . . . from even an act of retaliation 

as trivial as failing to hold a birthday party for a public employee . . . when intended to punish 

her for exercising her free speech rights” (internal quotation marks and citation omitted)). Here, 

police officers removed Wood from a public event under armed escort. That act was neither 

“‘inconsequential’ as a matter of law,” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 585 (6th 

Cir. 2012), nor just a “petty slight[] or minor annoyance[],” Burlington N. & Santa Fe Ry. Co., 

548 U.S. at 68. Wood satisfies the adverse action element.

Finally, the facts are in dispute as to whether Wood’s shirt “was a substantial or 

motivating factor in the decision to take the adverse action.” Westmoreland, 662 F.3d at 718. 

While the defendants argue that they removed Wood from the fairgrounds because he was 

filming people, Wood alleges that Blair walked up to him flanked by the defendants and yelled 

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“Where’s this shirt? I want to see this shirt.” DE 55-2, Wood Dep., Page ID 468. As the 

officers surrounded Wood and escorted him from the building, one of them said to Wood, 

“You’ve been given an order to vacate the property. So you’re leaving.” Troutman Cam #1, 

00:32–35. While walking Wood through the fairgrounds, with Wood repeatedly questioning 

whether the defendants had taken an oath to uphold the Constitution, one of the officers said they 

were “escorting . . . [Wood] to the front gate.” Johnson Cam 2:29–35. And while en route to 

jail, one officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but 

you want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. A reasonable jury, 

considering these facts, could conclude the officers were motivated to surround Wood and 

require him to leave in part because he wore a shirt that said “Fuck the Police.” We reverse the 

grant of summary judgment to the defendants on this claim.

V.

Wood used strong language to criticize the defendants. But “[o]ne of the prerogatives of 

American citizenship is the right to criticize public men and measures—and that means not only 

informed and responsible criticism but the freedom to speak foolishly and without moderation.” 

Cohen, 403 U.S. at 26 (quoting Baumgartner v. United States, 322 U.S. 665, 673–74 (1944)). 

“[T]he First Amendment recognizes, wisely we think, that a certain amount of expressive 

disorder not only is inevitable in a society committed to individual freedom, but must itself be 

protected if that freedom would survive.” City of Houston, 482 U.S. at 472. Wood’s speech, 

while coarse, was constitutionally protected. We reverse the grant of summary judgment and 

remand the case for further proceedings consistent with this opinion.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 20-3599

MICHAEL ANDREW WOOD,

Plaintiff - Appellant,

v.

CHAD EUBANKS, in his individual and official capacity as 

Sergeant of the Clark County Sheriff’s Department; MARIO 

TROUTMAN, JR., CHERISH STEIGER, MATTHEW 

YATES, JACOB SHAW, and JOSEPH JOHNSON, in their 

individual and official capacities as Deputies of the Clark 

County Sheriff’s Office, 

Defendants - Appellees.

Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the district court’s grant of summary 

judgment to defendants is REVERSED and REMANDED for further proceedings consistent with the 

opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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