NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0648n.06
No. 10-3520
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

VI VI AN SKOVGA RD; PER CY GROS, J R., Plaintiffs-Appellants,

v.
J EFF PEDRO, P.O.; MI KE MANNI X, P.O.; CI TY OF KETTERI

NG,
Def endants-A

ppellees.

__________________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STA TES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH O
OP INION

Before: SUTTON and WHITE , Circuit Judges; STAF F ORD, Distric t Judge. *

HELE NE N. WHITE , Circuit Judge. Plaintiffs-Appellants Vivian Skovga rd (Skovg ard)
and Percy Gros, J r. (Gros) (collec t ively , plaintiffs) are long- time anti-abor tion advocates, whose
activities outside of the Women’s Med + Center (the Center) , an abortion clinic in Ketter ing, Ohio,
include counseling , pray ing, p i ck et i ng , and distributing literature

. On Marc h 2, 2007, Alex
Kaminski (Ka minski), the Center’ s secur ity g uard, called t h e p olice to repor t that plaintiffs wer e trespas s ing on the Center’ s proper ty

. Offic ers J eff Pedro (Pedro) and Mike Mannix (Mannix) responde d to the call and ult i m ately arr ested plaintiffs. Charg es ag ainst the plaintiffs wer e later
dismiss ed when it was dete rm i n ed that they had been on the public rig ht-of-w ay adjac ent to the
Center. Plaintiffs then filed actions ag ains t the office rs, Kaminski, the company that employ ed

The Honor a

b le Wil liam H. Stafford, J r., Senior United States District J udg e for the Norther n * District of F lorida, sitting by desig nation.
1No. 10-3520

Skovgard v . Pedro Kaminski, and the City of Ketter ing (the City ). Pedro, Mannix , and the Cit y (c o l l ec t i vely , defe ndants) soug ht summary judgme nt on all of plaintiffs’ claims, which the district court g rante d. Subsequently , plaintiffs voluntarily dismiss ed their claims ag ainst the rema ining d ef en d an t s and

appea led the district cour t’s summary

judgme nt decision. We AF F IRM.

I.
A.
The district cour

t provided a c omprehe nsive and fa ir ac count of the f actua l backg round:
A. B ackg round on the Center , Kaminski, Skovga rd and G ros The Center[ ] is surrounde d on three si d es b y roadw ay s. To the south is

2 Stroop Road, which presently has a sidewalk, but has not alway s had such. To the west is Vi n ey ard Avenue , which has had a sidewalk at all times rele vant to this litigation. To the north is Wheatland Avenue (t h e l o cation of the incidents in question in this litigation), which does not have a sidewalk. I n the g rassy are a along Wheatland Avenue , there i s a fi re hy drant. Pedestrians sometimes walk on that g rassy are a to avoid tra ffic on the street.
1st Choice [S ecuri t y , I nc. (1st Choice)] provided secur ity service s for the Center, an d , assig ned Alex Kaminski as a secur ity g uard to the Center, in J anuar y 2007. The Center (which is not a party in this litigation) never advised Kaminski of the extent of its proper

ty or the exis tence of a public rig ht-of-w ay along the northern portion of the prope rty

that abuts Wheatland Ave nue.
Plaintiff Vivian Skovga

rd has been p ra y i n g, protesting and attempting to counsel women outside of the Center four day s a wee k for approximately six hours
a day , since 1989. I n so doing, she sometimes w alks along the g rass on Wheatland Avenue , stay

ing within three to four fee t of the roadw ay
. Skovga rd was arr ested numerous times, be tween 1989 and 1995, in various parts of the country (including Alabama , Kansa s and Texas) and convicted of criminal trespass in some instances, as a re s u lt of blocking acc ess to various abortion clinics. Howeve r, her onl y confr ontation with police at the.

. .Center was in “two thousand something” when she was either detained or arr ested (and then [i mmediately ] rele ased) for trespassing

Plaintiffs also refe r to the Center as the “ Haske ll Cl inic.” 2
2No. 10-3520

Skovgard v . Pedro when she walked on the Center’ s drivewa y to hand literature to a person leaving the fac ility in a ca r. Plaintiff Percy

Gros has been reg ularly

protesting and pra

y ing a t the Center since 1987. I n so doing, he walked in the g rass along Stroop Road (bef ore a sidewalk was added) and has also walked in the g rass along Wheatland Avenue “many , many times[ .]” When walking along Wheatland Avenue , Gros alway s stay s within a couple of fee t of the roadw ay
. During the twenty y ear period that he has been prese nt at the Center, the police have occa sionally been to the Center while Gros was there , but had never indi cate d to Gros that he wa s not allowed to walk on the gra ss along Wheatland Avenue , prior to the incident on Marc h 2, 2007. Gros was arr ested twice in 1987, once at the Center and once at another abortion clinic in Day ton, Ohio, and convicted both times for

disturbing the pe ace
. B. Incident at Cente r on Mar ch 2, 2007
On Marc h 2, 2007, Skovga rd arr ived at the Center around 9:30 a.m. and spent most of her time on the sidewalk along Viney ard Avenue , prior to Gros’s arr ival. When G ros arr ived, he walked in the g rassy are a along Wheatland Avenue , stay ing within three fee t of the road.[ ] Kaminski soon approa ched Gros with a threa t to call 3 the police if Gros did not g et off the g rass. When Gros i gnored him, Kaminski leane d into Gros, making phy sical contac t with him, and then acc used Gros of assaulting him. Gros rea cted by continuing to walk as befor e, while Kaminski went into the Center to c all the police de partment to repor t tha t G ros and Skovga

rd wer e tr espassing and to retrie ve a video came ra. Skovga rd then joined Gros, walking along the g rassy

are a on Wheatland Ave nue. Offic ers Pedro and Mannix arr ived s oon there afte r and i n i t i al l y spoke wit h Kamins ki. Kaminski advised the office rs that he had asked Gros and Skovga rd to leave the Center’ s proper

ty on the g rassy are a on the north side of the clinic, but they had ref used. Kaminski also informed them t h at the Center wanted Gros and Skovga rd off the g rass and back onto the sidewalk to conduct their protests. Ac co rd ing to Pedro, at this time Gros was fiftee n fee t off of Wheatland Avenue , while, at his d e p o s it io n , M a n nix testified that Gros and Skovga rd wer e approximately ten fe et into the g rassy are a when he arr ived. (This is in contra diction to the testimony of Gros and Skovga rd who stated that they alway s stay within three to four

Gros had made the decision to walk along Wheatland Avenue on this day beca use Skovga

rd 3 previously

told Gros that Kaminski had told he r that she was not allowed to walk on the g rass a nd Gros wanted to “basic ally make a statement to say [S k o v gar d ] i s not the only person that is protesting here . . . . [b] y

leaving his footprints [ in the snow alongWheatland Avenue .]”

3No. 10-3520

Skovgard v . Pedro fee t (or a couple of fee t) of the roadw ay .) The office rs believed that the edg e of the roadw ay marke d the Center’ s proper ty line. The office rs sever al times told Gros and

4 Skovga rd that they neede d to g et off the g rass and encour ag ed them to continue their protests on the sidewalk, but Gros and Skovga rd continued walking in the g rass. The office rs then stated that they would arr est Gros and Skovga rd if they did not g et off the gra ss, at wh i ch t i m e both Gros and Skovga rd t old the officers that they did not have to g et off the g rass beca use it was public rig ht-of-w ay
. Gros also mentio ned that they had been protesting on t h at p ro perty for over twenty y ear s and had never been hara ssed by the police befor e. Neve rthel es s , the office rs handcuf fed and
arr ested Gros and Skovga rd for criminal trespass, transport i n g t h em to the police station and detaining them in the City jail. Ultimately , the charg es were dism issed ag ainst Gros and Skovga rd wh en it was deter mined that they wer e protesting within the public rig ht-of-w ay
. The public rig ht-of-w ay on Wheatland Avenue extends 25 fee t from the cente rline of the road. I t is unclea

r how wide the road is or how many fee t the rig ht-of-w ay extends into the g rassy are a along Wheatland Avenue

. . . . . 5
C. Fac ts Pertaining to Municipa l L iability At his deposition, L ieutenant [ J ames] Knickle [ (Knickle )], of t he Ke ttering Police Depa

rtment, testified that Pedro and M an n ix acte d in acc ordanc e with the C i t y ’s policies, proce dures and training , in the course of the arr ests of Gros and Skovga rd, on Marc h 2, 2007. Knickle is familiar with the history o f t h e re g ular prese nce of protestors at the Center, including a mass protest in the ea rl y 1 9 90s, whe re larg e g roups blocked the door of the Center and the police made arr ests for cr i m i nal trespass. Prior to the incident involving Gros and Skovga rd, in 2007, howeve r, the City did not provide any tr aining to its office rs reg rading how to

“When asked why he assumed that the Center’ s proper ty line was at the edg e of the street, 4 Pedro testified that ‘all of my prior understandin g an d t raining told me that basica lly proper ty is proper ty

. I f

. . . a person’ s proper ty is basica lly the established proper ty line, that the edg e of the g rass lea ding up to the side walk and e very thing inside that is their prope rty .’”
“A hand-ske tched draw ing from the Ketter ing City Eng ineer indicates that the rig ht-of-w ay 5 extends approximately 14.5 fee t into the g rassy are a on either side of Wheatland Avenue

. Howeve r, Gros testi fies that the C ity En gi n ee r d i d not know how wide the street was, when he prepa red the sketch, so the numbers on the sketch would appea r to b e es t i m ates. The Plaintiffs also point to photogr aphs contained in the rec ord, which wer e taken in the course of a survey of the proper ty , but there is no indication in the photogr aphs of how many fee t the rig ht-of-w ay extends into the g rass.”

4No. 10-3520

Skovgard v . Pedro identify or handle trespass issues at the Center. After acknow ledg ing that protestors wer e arr ested for criminal trespass, during the mass protest at the Center in the ear ly 1990s, Knickle wa s questioned about training with reg ard to trespass issues. A pertinent pa

rt of his deposition rea ds: Q Okay . So it’s fair to say that dating back sa

y – at least say

to the 1 9 9 0s which is when I know a lot of that activity happene d, criminal t respa ss wa s a ch arg e that the – or si tuation that the pol ice and the Ke ttering courts had to de al with?
A Correc t. Q An d d o y o u rec all any specific training that th e [ C ] i t y o f Ketter ing ever g ave to the police office rs dealing with trespassissues at that clinic? For example, wher e are the proper ty lines, wher e ar e t h e protester s allowed to walk, wher e can’ t they walk. Sometimes there [are] sidewalks along some side of the clinic. Other side of the clinic, there are no sidewalks. I ’ve just thrown a lot at y ou but do y ou rec all any kind of training to addre ss that location in particula r wit h the history

of protest then?
A Prior to this i ncident in 2007, no.
L ieutenant Knickle testified that, althoug h the City did not conduct any training specific to trespass issues at the Center, it had conducte d training specific to the Center on the “log istics of how we wer e go i n g to respond if we wer e require d to make mass arr ests and – specific ally , y o u k n ow, what the logistics would be if we broug ht in buses and the u se of flex cuff s versus reg

ular handcuf

fs and how we would proce ss personnel.”
Pedro confirms Knickle’ s testimony in stating that, prior to the incident in Marc h 2007, he never re ce i v ed any training or instruction about how to handle protestors at the Center, except on the occa sion of the mass protest in the ear ly 1990s when the City instructed him on how to handle the unique aspec ts of that anticipated event. He also rec eived no training or instruction about the proper ty lines or public rig ht-of-w ay around the Center. L ikewise, M an n i x had rec eived no training reg arding public rig hts-of-wa y or proper

ty lines, or any training perta inin g to handling issues specific to the Center, with the exception of the instructions pertinent to the ear lier mass protest, as descr ibed by Pedro. As to other police training , both office rs had attended basic peac e offi cer training , as well as in-servic e training provided by

the City

.

5No. 10-3520

Skovgard v . Pedro

Wit h reg ard to the incident in Ma rch 2007, L ieutenant Knickle followed up on the same by talking with Of fi ce r P ed ro and visiti ng the site in question. He conclude d that the office rs had acte d in acc ordanc e with the City ’s p o l i cies and proce dures when they made the ar re sts in question. Soon there afte r, the City provided its police office rs with an aer ial photogr aph of the proper ty surrounding the Center. The City als o p ro v i d ed its office rs instruction conce rning the Center’ s proper ty boundarie s and how they rela ted to making arr ests for c riminal trespass.
B.
On Marc h 3, 2008, plaintiffs filed suit ag ainst Pedro, Mannix , 1st Choi ce , and Kaminski, alleg ing (1) war

rantless, unrea sonable, and unconstitutional seizure and detention, in violation of the
Four th Amendment; (2) depriva tion of the fre edoms of speec h and assembly and reta liation for the

ex er ci s e o f speec h, in violation of the First Amendment; (3) depriva tion of liberty without du e
proce ss of law, in violation of the Fifth and Four teenth Amendments; and (4) false arr est, false imprisonment, and malicious pro s ec ution in violation of Ohio law. Plaintiffs filed a separ ate suit

ag ainst the City , alleg ing ina dequate training and/or failure to disc ipline the police office rs, which
resulted in the alleg ed First, Four th, Fifth, and Four

teenth Amendment violations. The district court
consolidated the c ases.
Def endants filed a mot ion for summ ary judgme nt on all of pl aintif fs ’ cl ai m s
. The dist rict

court g rante d this motion, concluding that (1) Pedro and Mannix had probable cause to arr est plaintiffs; (2) plaintiffs had waived their First Amendm en t retaliation claims; (3) plaintiffs’ First
Amendment rig hts wer e not violated beca use Pedro and Mannix had probable cause to arr est them; (4) plaintiffs could not preva il on their Four teenth Amendment due proce ss claims beca use the
Four th Am en d m en t , and not the Four teenth Amendment, establishes proce dural protec tions with

respe ct to the criminal justice sy stem; (5) it was unnece ssary to deter mine whether defe ndants wer e

6No. 10-3520

Skovgard v . Pedro entitled to qualified immunit y ; (6) the City wa s n o t l i able for a failure to train Pedro and Mannix
beca use plaintiffs could not show that a constitutional violation had occur red; (7) the City was not
liable for a failure to discipline or investiga te beca use it did take steps to investiga te the situation and

to train its office rs reg arding the rig ht-of-w ay at the Center afte r the alleg ed incident; (8) there wer e

no fac ts prese nted to indicate that Pedro and Mannix deser ved punishment g iven that they had “neve r been trained on tresspass/boundary issues at t he C enter ”; and (9) Pedro and Mannix wer e entitl ed

to immu n i t y o n plaintiffs’ st ate law claims beca use t hey did not act with a “malicious purpose, in
bad fa ith, or in a wanton or r eckle ss manner.”
Plaintiffs then filed a motion asking the district court to dismiss with prejudice their fede ral
claims and dismiss without prejudice their state claims ag ainst defe ndants 1st Choice and Kaminski.
The district court g rante d the motion, there by terminating plaintiffs’ case
. Plaintiffs timely appea led
the district court’s summar y judgme nt decision.

II.
A.
Plaintiffs claim that their “F ourth Amendment rig hts wer e violated when they wer e arr ested
for criminal trespass on Marc h 2, 2007 beca use [p] laintiffs wer e alway s in the public rig ht of way , neither” Pedro, Mannix , nor Kaminski “had any knowledg e to the contra ry or any knowledg e about
the boundarie s of the proper ty ,” and Pedro and Mannix “f ai l ed in their duty to investiga te further
afte r [ p]l aintiffs i nformed them about [ p]l aintiffs[’] long history of protesting in that same area in
full view of ev e r

y o ne.” Def

endants arg ue that plaintiffs’ Four th Amendment rig hts wer e not violated
beca use Pedro a

nd Mannix had proba

ble ca use to arr est plaintiffs for c riminal trespass.

7No. 10-3520

Skovgard v . Pedro “We revie w the district court’s g rant of summary judgme nt de novo.” Rodr i g u ez v. Passinault , 637 F.3d 675, 680 (6th Cir. 2011) (italics omitted). Summary judgme nt is appropr iate
wher e the pleading s, depositions, answe rs to interrog atories, admissions on file, and aff idavits show
“that there is no g enuine dispute as to any materia l fac t and [t hat] the movant is entitled to judgme nt

as a ma tter of law .” F ed. R. Civ. P. 56(a).
The Four th Amendment g uara

ntees “that g overnme nt officia ls may not subject citizens to

sear ches or seizure s w it

h o u t p roper authorization,” and there fore “[a] person who has been the victim

o f an u n l aw fu l arr est or wrong ful seizure under the color of law has a claim based on [t h i s Amendment.]” Brooks v. Rothe , 577 F.3d 701, 706 (6th Cir. 2009). “[A] war rantless arr est by a law
office r i s rea sonable under t he Fourth Amendment where there is probable cause to believe that a criminal offe nse has been or is being committed.” Dev enpec k v. Alford , 543 U.S. 146, 152 (2004).
“The validity of the arr est does not depend on whether the suspect actua lly committed a crime

. . . .” Michigan v. D eFillippo , 443 U.S. 31, 36 ( 1979). As a result, “in order for a wrong ful arr est claim

to succe ed under [42 U.S.C.] § 1983, a plaintiff must prove that the police lacke d probable cause .” Fridley v. H

orrighs , 291 F.3d 867, 872 ( 6th Cir. 2002).
“Probable cause exis ts if the fac ts and circ umstances known to the office r war rant a prudent

man in be lieving that the offe nse has been committed.” Logsdon v

. Hains , 492 F.3d 334, 341 (6th
Cir. 2007) (quoting Henry v. United States , 361 U.S. 98, 102 (1959)) (interna l quotations omitted).
The probable cause inquiry “‘de pends upon the rea sonable conclusion to be draw n from the fac ts
known to the arr esting office r at the time of the arr est,’ wher e supported by ‘re asonably trustworthy
information.’” Id. (citation omitted). An office r who intends to execute a war rantless arr est is not

8No. 10-3520

Skovgard v . Pedro tasked with an “over ly -burde nsome duty to investiga te.” Id

. I n initially deter mining probable cause ,

an office r need not “investig ate independe ntly ever y claim of innocenc e.” Id. (citing Gardenhire v. Schubert , 205 F.3d 303, 318 (6th Cir. 2000)). “And afte r the office r deter mines, on the basis of the
fac ts and circ umstances known to him, that probable cause exis ts, the office r has no further duty to investiga te or to sear ch for exculpatory evidenc e.” Id. Howeve r, the office r’s initial probable cause deter mination must be based on both “ inculpatory and exculpatory evidenc e known to [hi m] ,” and
the office r “ca

nnot simply turn a blind ey e toward potentially exculpatory evidenc e.” Id. (citations
and interna l quotations omi tted).
Authorization for an arr est ty pically depends on state law. Id. Her e, Ped ro an d M annix

arr ested plaintiffs for criminal trespass. I n Ohi o, an individual commits criminal trespass by “[k] nowing ly enter [i ng ] or rema in[ ing] on the land or premises of another ” absent “privileg e to do
so.” Ohio Rev. Code § 2911.21(A)( 1). The Ohio Code define s “privileg e” as “an immunit y , license,

or rig ht confe rre d by law, bestowed by express or implied g rant, arising out of status, position, office ,

or rela tionship, or g rowing out of nece ssity .” Id. § 2901.01(A)( 12). “Ohio courts construe the lackof-pr ivilege require ment as an ele m en t o f t h e offe nse of criminal trespass, and not an aff irmative
defe nse.” Logsdon , 492 F.3d at 342; see also State v. Newell , 93 Ohio App.3d 609, 639 N.E.2d 513, 514 (1994).
B.
Pedro and Ma

nnix would have had probable cause to a rre st pla intiffs if, on the basis of the
fa ct s known to them, they could have rea sonably conclude d that plaintiffs knowing ly enter ed o r

rema ined on the Center’ s proper ty without privileg e. I t is undisputed that plaintiffs wer e protesting

9No. 10-3520

Skovgard v . Pedro in a gra ssy are a that rea sonably appea red to be part of the Center’ s proper ty , and that did not have

a sidewalk indicating a public rig ht-of-w ay
. Pedro arr ived on the scene in response to a repor t that

two persons wer e ref

using to leave the Center’ s proper ty

. He spoke to Kaminski outside the Center,
and Kaminski stated that “he and the owner or repr esenta tive of the building wanted [t he two
individuals on the g rass] to be remove d from the g rassy are a
. . .[, but that they could continue their
protest on] the sidewalk.” Kaminski also told Pedro that he had asked plaintiffs to leave the g rassy

are a, and that they ref

used to do so. Pedro testified that when Kaminski said that he and the owner wanted plaintiffs remove d from the proper ty , he motioned toward the Center and Pedro saw a fema le staff member (the Center’ s d i re ctor is fema le) standing ins ide t he doorway

. Pedro also “vag uely 6

reme mber[ed] [Kaminski sa y ing that he and Gros] had bumped into eac h other, or in the course of [Kaminski] advising [Gros] to le ave, that they had made very

slight phy sical conta ct.” He did not

g ive serious a ttention to Kaminski’s complaint, however.
Pedro further testified that at the time, “he made a rea sonable assumption that the [C enter ’s]

proper ty lines wer e the edg e of the g rass o n t h e north end of the proper ty , and then the sidewalk along the east side of the street and [t he] sidewalk along the south side of the stree t

. ” This assumption was based on “[his] prior understanding and training that

. . . . [ i ] f an individual or a person’ s proper

ty is basically

the established pr operty

line, that the edg e of the g rass leading up to

Melissa Goode (Goode), the Center’ s direc tor, testified t hat s he observed Pedro speaking 6 with plaintiffs, but did not app ro ac h P ed ro beca use she had not seen what had transpired. Goode also stated that Kaminski came into her office and told her that he had called the police beca use he had walked out to ask Gros to move awa y from the g rass and Gros “shoved him or pushed him out of his way .” Kaminski did not ask for Goode’ s permission to call t h e p o l i ce , but Goode did not repr imand him for doing so, and she did not subsequently speak to the of

fice rs about the matter

. 10No. 10-3520

Skovgard v . Pedro the sidewalk and ever

y thing inside that is thei r p ro perty .” Pedro testified that during his police training on the issue of criminal trespass, he was taug ht that a business proper ty would g ener ally be
surrounde d by

a par king lot, which w ould come “out to the e dg e of ty pically a g rassy

are a lea ding up to a public sidewa lk, and that would extend the boundarie s of the prope rty .”
After talking with Kaminski, Pedro went to speak to Gros, who was walking back and forth in the g rassy

are a while holding a cross. Acc ording to Pedr o, Gros wa s approximately fiftee n fee t
from the edg e of the g rass. Skovga rd was also walking in the g rassy are a close to Gros. Pedro asked plaintiffs to move to the sidewalk, and Gros ref used to do so. Pedro asked plaintiffs to move three

more times, and Gros ref

used eac h time. Although Pedro direc ted his comments at plaintiffs, “Gr os 7
did all the talking.” Pedro rec alled Gros say ing that they had a rig ht to walk on the ease ment and that they had been protesting at t h e C enter for a long time while Skovga rd “wa s in the backg round supporting what [] Gros had to say .” After Pedro’s third reque st that they move to the sidewalk, Gros
asked to see a judge. Plaintiffs also ref used to provide their identification car ds to Pedro. Pedro ultimately informed plaintiffs tha t if they did not want to move to the sidewalk, Pedro would have

to arr est them beca

use the pro p er t y o wner wanted them remove d from the proper ty

. He then

proce eded to arr est Gros. Prior to leaving the scene , Pedro put Gros’s cr o s s i n t h e front seat of
Gros’s ve hicle and a ssisted Gros in secur ing his ve hicle, which w as par ked outside the Center

.

Skovga rd testified that she did not hear either office r say that she had the option to move to 7 the sidewalk, but acknow ledg ed that she may have been distracted beca use she was “ca lling her husband and talking to him” during her interac tion with the office rs. Gros admitted that Pedro told him at least once that he could “p i ck et i n t h e s tree t” and stated that Pedro just wanted Gros and Skovga rd to “g et off the g rass.”
11No. 10-3520

Skovgard v . Pedro Mannix arr ived toward the end of Pedro ’s co n v ersa tion with plaintiffs. He observe d plaintiffs standing on the g rass, approximately ten fee t from the roadw ay
. Mannix hear d Kaminski

say that he wanted Skovga rd arr ested beca

use she had previously been trespassing on the proper ty

. Whil e Pedro arr ested Gros, Mannix asked Skovga rd “if she was g oing to

. . . g et off the proper ty and

on th e s i d ew al k .” Skovga rd responded t hat “she didn’t have to, she was allowed to be where she
was.” Mannix testified that his understanding reg arding the Center’ s proper ty lines was consistent
with Pedro’s, as he believed that the Center’ s proper ty encompa ssed the g ras s y are a along Wheatland
Avenue and stopped at the roadw ay
. Be cause both office rs believed that Skovga rd was trespassing , Pedro made the decision to arr est her, and Mannix eff ecte d the arr est. Mannix then place d Skovga rd
in the pol ice c ar a

nd secur ed Skovg ard’ s car . He a lso retrieve d Skovga rd’s purse from her

car for
her. Shortly afte r the arr est, Kaminski met Pedro and Mannix at the police station upon their reque st and sig ned the c riminal complaints ag ainst plaintiffs. Thus, the dispute focuse s on whether Pedro and Mannix wer e require d to de termine wher e the public rig ht of way ended befor e eff ecting the arr ests. Be cause the law does not clea rly require
such a de termination, Pedro and Ma nnix are entitled to qualified immunity

.

C.
I n deter mining the applicability of qualified immunit y , we inquire whether : (1) “[t] aken in

t h e l ight most favor able to the party asser ting the injury , do the fac ts alleg ed show the office r’s
conduct violated a

constitutional right[;] ” and ( 2) wa s the rig ht “‘c lear ly established’ to the extent
that a reasonable person in the officer’ s position would know t hat t he conduct complained of was unlawful.” Bletz v. Gribble , 641 F.3d 743, 750 (6th Cir. 2011) (citation omitted). “F or a rig ht to be

12No. 10-3520

Skovgard v . Pedro clea rly established, the contours of the rig ht must be sufficie ntly clea r that a rea sonable officia l
would understand that what he is doing violates that rig ht.” Leonard v. Robinson , 477 F.3d 347, 355 (6t h C i r. 2007) (citation and internal quotation marks omitted). “A rig ht is clea rly established if
there is binding prec edent from the Supreme Court, the Six th Circuit, the district court itself, or other
circ uits that is direc tly on point.” Risbridger v. Connelly , 275 F.3d 565, 569 (6th Cir. 2002) (citation omitted). “This is not to say that an officia l action is protec ted by qualified immunit y unless the very action in question has previously been held unlawful, but it is to say that in light of pre- exis ting law
the unlawfulne ss must be appar ent.” W ilson v. Layne , 526 U.S. 603, 615 (1999) (citations omitted).
Public officia ls cou l d “st ill be on notice that their conduct violates established law even in novel
fac tual circ umstances.” Hope v. Pelzer , 536 U.S. 730, 741 (2002). Courts may use their discretion

to deter mine which prong of the test t o ad d re ss first. Pearson v. Callahan , 555 U.S. 223, 236 (2009).
The Supreme Court has never addre ssed whether in criminal trespass case s, office rs, as part
of the probable cause inquiry , must conduct an additional investiga tion wher e the alleg ed trespasse rs claim they are on a public rig ht-of-w ay
. The Fifth and Seventh Circuits, howeve r, h ave expli citly
conclude d that office rs have no duty to inve stiga te the boundarie s of a public rig ht-of-w ay prior to making an arr est for crimin al trespass when they rec eive rea sonably trustworthy information that

cer tain persons are trespassing on private proper ty and actua lly see these persons on the proper ty in question. See Bodzin v. City of Dallas , 768 F.2d 722, 724-25 (5th Cir. 1985); Kelley v. Myle r , 149
F.3d 641, 646-47 (7th Cir. 1998). Although we have not y et decide d a case that is fac tually simil ar

13No. 10-3520

Skovgard v . Pedro to Bodzin , Kelley , or the insta n t ca s e, we h ave relied on Kelley for the proposition that “a duty to investiga te is no part of the probable cause deter mination.” Gardenhire , 205 F.3d a t 322-23.
Pedro and Mannix arr est ed p laintiffs for criminal trespass on the basis of their training , observa tions, and the information provided by Kaminski. Unlike in Logsdon , they had per sonally
observe d the allege d trespasse rs i n the area believed to be private proper ty . Be cause a reasonable person in the of

fice rs’ position would not ha ve thought that he wa s acting unlawfully by failing to
further investiga

te t he boundaries of the publ i c ri g ht-of-w ay befor e arresting plaintiffs, Pedro and
Mannix are entitled to qualified immunity on plaintiffs’ F ourth Amendment c laims.
III.
Plaintiffs also arg ue that their First Amendment rights of fre edom of spee ch and a ssembly

wer e violated “whe n they wer e remove d from the public rig ht of way while peac efully protesting
th e r e
. ” Def

endants contend that no First Amendment violations occur red beca use Pedro and Manni x had proba ble ca use to arr est plaintiffs for c riminal trespass.
“B eca use of the importance of uninhibited, robust, and wide-ope n debate on public issues,”
the Supreme Court has “tra ditionall y s ubjected restric tions on public issue picketing to car eful scrutiny .” Frisby v. Schultz , 487 U.S. 474, 479 (1988) (citation and interna l quotations omi tted). “‘[T]im e out of mind’ public streets and sidewalks have been used for public assembly and debate , the hallmarks of a traditional public forum.” Id. at 480 (citation omitted) (alter ation in orig inal). I n these fora , “[t] he State may
. . . enforce reg ulations of the time, place , and manner of expression
which are content-ne utral, are narr owly tailored to serve a signific ant g overnme nt interest, and leave

14No. 10-3520

Skovgard v . Pedro open ample alterna tive channe ls of communication.” Pouillon v. City of Owosso , 206 F.3d 711, 715 (6th Cir. 2000) (c itation and internal quotations omitted).
I n Logsdon , the only case that is potentially on point, the plaintiff “eng ag ed in anti-abor tion
protest and counseling from the public sidewalk and public park adjoining [a clinic’s] proper ty , both quintessentially public fora ,” and a lleg ed that office rs remove d him “ from the public fora , there by causing him to cea se his protest and counseling , ostensibly for v i o l at i n g Ohi o’s criminal trespass
law.” 492 F.3d at 345-46. The plaintiff also claimed that the office rs demonstrated “a blatant bias

ag ainst [t he plaintiff] a

nd in f avor of doing whateve r [t he clinic] wa nted.” Id. at 346. Be cause we had alre ady deter

mined that the office rs lacke d probable cause to arr est the plaintiff, and beca use we liberally construed the plaintiff’s complaint, we conclude d that the plaintiff had “stated a claim that [t he office rs] violated his First Amendment rig hts by restric ting his speec h on the basis of content.”
Id. We did not express any opinion as to whether the plaintiff would “ultimately succe ed on hi s claim following discovery .” Id. Logsdon does not control here

. The office rs in Logsdon attempted to destroy the plaintiff’s sign a nd arr ested him immediately upon arr iving on the sc ene. T he cour t construed the pla intiff’s complaint as alleg ing that the defe ndant office rs wer e “motivated by the content of his speec h” and
“not by any purported criminal trespass.” Id

. Her e, Pedro and Mannix encour ag ed p l ai n t iffs to
continue their protest on the sidewalks border ing the Center, steering plaintiffs awa y from a location

t he office rs thought was private proper ty to the public rig ht-of-w ay , and assisted plaintiffs wi t h locking up their signs afte r arr esting them. Be cause there is no evidenc e that Pedro and Mannix wer e

15No. 10-3520

Skovgard v . Pedro motivated by their desire to deter plaintiffs’ s p eec h rathe r than their belief that plaintiffs wer e trespassing , plaintiffs’ F irst Amendment claims fa il.
C. Finally , plaintiffs arg ue that “re asonable minds could conclude that the policies, prac tices[,] and poli ce training (or l ac k t h er eo f) by the C ity of Kettering wer e the ‘moving forc e’ behind” t he alleg ed constitutional violations committed by Pedro and Mannix

. They cl ai m that “the City

conce ded that it had never trained i t s police forc e on issue[s] of criminal trespass and First
Amendment [r] ights,” and that, throug h its Rule 3 0 (b )(6) witness, “the City openly ratified and

approve d of the c onduct of . . . Pedro a nd Mannix . . . .”
The seminal case on municipal liability und er § 1983 is Monell v. Departme nt of Social
Servic es , 436 U.S. 658 (1978), wher e the Supreme Court held that muni ci p alities can be sued
direc tly under § 1983 if the action of the municipality itself can be said to have cause d the harm,
such as wher e “the action that is alleg ed t o b e u n co nstitut ional implements or executes a policy
statement, ordinanc e, reg ulation, or decision officia lly adopted and promulg ated by that body ’s
office rs.” Id. at 690. Municipal liability for the actions of employ ees may not be based on a theory
of responde at superior, but it can be predic ated upon g rounds other than expli ci t ex pressions of
officia l policy

. Id. at 690-91, 694. Subsequently , in City of Canton v. Harris , 489 U.S. 378 (1989), the Court held that “[o] nly
wher e a municipality ’s failure to trai n its employ ees in a rele vant respe ct evidenc es a ‘deliber ate
indiffer ence ’ to the rig hts of its inhabitants can such a shortcoming be proper ly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id

. at 389. “To establish delibera te indiffer ence ,

16No. 10-3520

Skovgard v . Pedro the plaintiff ‘must show prior instances of unconstitutional conduct demons t ra t i n g that the [m unicipality ] ha[d] ignor ed a history of abuse and was clea rly on notice that the t ra i ning in this particula r are a was defic ient and likely to cause injury .’” Miller v. Sanilac Cnty ., 606 F.3d 240, 255 (6th Cir. 2010) (citing Fisher v. Harden , 398 F.3d 837, 849 (6th Cir. 2005)). A failure to investiga te

or the ratifica

tion of illega l acts can constitute evidenc e of an officia l “p o l i cy o f d elibera te
indiffer ence

. ” Leach v. Shelby Cnty. Sheriff , 891 F.2d 1241, 1248 (6th Cir. 1989); see also Marche se
v. Lucas , 758 F.2d 181, 188 ( 6th Cir. 1985).
The e vidence here does not in any way support a finding of delibera te i ndiffer ence
. Thus,
the City is not liable to plaintiffs under theories o f fa i l u re t o t rain or failure to discipline or investiga te.
III.
For the aboveme ntione d reasons, we AF F IRM the district court’s g rant of summary judgme nt to defenda

nts.

17