NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0008n.06
Case No. 16-2741
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ELISE HILTON, et al, Plaintiffs-Appellants,

v. CATHERINE MISH, et al., Defendants-Appellees. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: SILER, CLAY, and WHITE, Circuit Judges.
SILER , Circuit Judge. Elise and Ed Hilton, indi vidually, and as next friends of their developmentally-disabled daughter , EH (collectively, the “Hiltons”) , appeal the district court’s dismissal of their complaint. They argue that th e district court erred in three respects. They allege that Catherine Mish, City Attorney for Grand Rapids, was acting under color of state law when she sent two emails from her City email to a private individual. Second, they allege that Mish’s comments were retaliatory conduct unde r clearly established Fi rst Amendment law. Third, they allege that the district court erre d in dismissing their intentional infliction of emotional distress (“IIED”) claim. We affirm. 1

1 We assume without deciding that (1) Mish was acting under color of state law when she sent the emails and (2) the Hiltons have established a constitutional violation.Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 2 - FACTUAL AND PROCEDUR AL BACKGROUND
I. Parties At the time relevant to this case, Elise worked at the Acton Institute (“Acton”), a political think tank and advocacy group located in th e City of Grand Rapids (“City”). The City is a Michigan muni cipal corporation. As City A ttorney, Mish’s duties included:

 Acting as the legal advisor for the City and its various bodies;

 Litigating cases for the City and its bodies;

 Reviewing all contracts, bonds and other in struments for the City and its bodies;

 Issuing legal opinions when requested to do so by any of the City’s bodies and officials;

 Maintaining copies of all franchises granted by the City and all contracts and agreements entered into by the City; and

 Investigating citizen compla ints concerning, among other th ings, misapplication of the City’s funds.
II. Factual/Procedural Background In January 2012, EH 2 was a student at Hope Acad emy in Grand Rapids, a school intended to help individuals with special need s. One day at school, EH acted up and the Academy staff told her to leave the school. Afte r EH left the school, a stranger lured her into a house, and over the course of the next several days, repeatedly raped her. Eventually, EH escaped from the house and was later found in an abandoned building. The Hiltons asked the City for help. After interviewing EH and the Hiltons, a Grand Rapids Police Department (“GRPD ”) detective opined that EH w ould make a “pathetic witness” due to her mental impairments. The GRPD declin ed to investigate further, and the prosecutors declined to file charges. In 2013, the Hiltons filed a civil action in the Western District of Michigan against Hope Academy and GRPD. Among other violations, th e Hiltons alleged that GRPD violated their equal protection rights because it had refused to extend police resources to EH based on adverse

2 EH was a minor at the time of the in cidents set forth in the complaint.Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 3 - considerations of EH’s intellect ual disability. In 2016, the distri ct court granted the City’s and GRPD’s motion to dismiss. In early 2014, Acton applied to the City for real and person al property tax exemptions that the City initially denied. During this disput e, Donald E. Zerial, an attorney, attended City board meetings and advocated for Acton’s tax ex emptions. He also regularly contacted City officials, including Mish, to express his support of Acton. In March 2015, Zerial sent an ema il to Julie Hoogland, the Editor of the Grand Rapids
Press , stating: I think it would be a worth-while inve stment for the Grand Rapids Press and Mlive to make on behalf of the West Michigan community to have a reporter attending these meetings and do a Press re view for all of your faithful readers. To this email, Zerial attach ed an advertisement for an upcoming lecture at Acton. The advertisement also promoted other Acton events, including an event entitled “The Scarlet Cord – The Evils of Sex Trafficking with Pam Alderman and Elise Hilton.” Mish was apparently copied on the email at her City-provided email address. About an hour after receiving the email, Mish responded to Zerial personally: Perhaps you should ask the Acton Institute why they think they should be exempt from paying real property taxes? And why are they suing the City of Grand Rapids to demand their valuable govern ment handout of that real property tax exemption? For an institute that proclaims the below political message, it seems to me that they are entirely hypocritical in throwing an absolute hi ssy fit because they didn’t get the government handout that they believe they are “entitled” to. A few hours later, Mish sent Zerial another email: I find this particularly ironic. . . .if you scroll down on the attachment you sent me, and get to upcoming events, you see this entry: April 29–Acton Art Series–The Scarlet Cord - The Evils of Sex Trafficking with Pam Alderman and Elise HiltonCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 4 - Elise Hilton is a staff member of Acton In stitute here in GR. Her daughter, at the age of 15-16 or thereabout s, ran away from home (ran away from her “alternative” high school in downtown GR). She wandered the streets of downtown Grand Rapids, acting as a prostitu te in exchange for heroin, cocaine, alcohol and so forth. Her father talked to her on her cell phone and asked where she was / asked her to come home. She re fused to come home and refused to tell her father where she was. The police fi nally found her after many days of her escapades in trading sex for drugs. And the result? Ms Elise Hilton the Act on hypocrite dares to sue the City of Grand Rapids blaming the GRPD for the fa ct that her daughter ran away from home to become a crack and heroin whor e. Currently pending litigation. Case No. 1:13-CV-00727, assigned to the Hon. Paul Ma loney, U.S. District Court for the Western District of Michigan. Appare ntly, Ms. Hilton the Acton hypocrite believes that the government is the cause of her family’s woes. Therefore, the government owes them a pile of money! It must be the police department’s fault, and she and her husband Ed believe they are owed money for this! The young woman did not run away from ho me to become a crack and heroin whore because of anything done by the City of Grand Rapids or the GRPD. We did not raise her and did not influence he r life choices in this regard. The hypocrisy of the Acton Institu te and its employees is simply amazing. Beware that you are dealing with hypocrites, sir. A year after sending the email, in April 2016, To m E. Gantert, Managing Editor of Michigan Capital Confidential, sent a Freedom of Inform ation Act (“FOIA”) request to the City for information related to the Acton dispute. In re sponse to this request, th e City provided the above email chain to Gantert. Gantert forwarded the email to Elise. After receiving the email, the Hiltons filed the instant three- count lawsuit. In Counts 1 and 2, the Hiltons alleged First Amendment reta liation claims under 42 U. S.C. § 1983. Count 1 alleged that Mish violated the Hiltons’ First Am endment right to seek legal redress and Count 2 alleged that Mish violated Elise’s First Amendmen t right of association w ith her employer. In Count 3, the Hiltons brought a claim for IIED under Michigan law. The City and Mish filed a motion to dismiss all counts for failure to state a claim. The district court granted the motion holding: (1) Mish acted as an i ndividual rather than in her capaci ty as City Attorney when sheCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 5 - responded to the email; (2) Mish was entitled to qualified immunity becau se her actions did not violate the Hiltons’ First Amendment rights; (3) the City was not liable because the Hiltons failed to properly allege a constitutional violatio n; and (4) the Hiltons’ II ED allegations did not rise to the level of intent ional or reckless action. STANDARD OF REVIEW We review de novo a district court’s grant of a motion to dismiss. Laborers’ Local 265 Pension Fund v. iShares Tr. , 769 F.3d 399, 403 (6th Cir. 2014). To survive a motion to dismiss, a claim’s “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all of the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citation omitted). DISCUSSION
I. Violation of Clearly Estab lished Constitutional Law The Hiltons argue that Mish violated thei r clearly established First Amendment rights when she sent the email, thus making her ineligible for qualified immunity. “Under the doctrine of qua lified immunity, ‘governme nt officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or cons titutional rights of which a reasonable person would have known.’” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Once a defendant raises the qualified immunity defense, the burden shifts to the plaintiff to demonstr ate that the defendant violated a right so clearly established “that ev ery ‘reasonable official w ould have understood that what [s]he [was] doing viol ate[d] that right.’” Ashcroft v. al-Kidd , 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)).Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 6 - There are two steps in the qualified immunity an alysis. First, “[t]he court must determine whether the ‘facts alleged show the officer’s conduct violated a c onstitutional right.’” 3 Cass v. City of Dayton , 770 F.3d 368, 374 (6th Cir. 2014) (quoting Saucier v. Katz , 533 U.S. 194, 201 (2001)). If the plaintiff establishes a constitu tional violation, the court must then determine “whether that right was ‘c learly established.’” Id. (quoting Saucier , 533 U.S. at 201). In accordance with Pearson v. Callahan , 555 U.S. 223, 236 (2009), we will only address the second step of the qualified immunity analysis: whether the vi olation was clearly established. The Supreme Court recently reiterated the very narrow scope of a “clearly established law” stating: “[C]learly established law” should not be defined “at a high le vel of generality.” As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Otherwise, “[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” White v. Pauly , 137 S. Ct. 548, 552 (2017) (internal citations omitted). With this narrow scope in mind, we cannot fi nd that Mish was put on notice that sending an email to a private individual with no authority over the Hiltons would constitute “an adverse action that would likely deter a pe rson of ordinary firmness from continuing to engage in the protected conduct.” Bloch, 156 F.3d at 678. To overcome qualified immunity, the Hiltons rely on three cases as evidence of a clearly established adverse action: (1) Fritz v. Charter Twp. of Comstock , 592 F.3d 718 (6th Cir. 2010); (2) Barrett v. Harrington , 130 F.3d 246 (6th Cir. 1997); and (3) Bloch , 156 F.3d 673. However,

3 The elements to sufficiently state a retali ation claim are: (1) the Hiltons engaged in constitutionally-protected conduc t; (2) the defendant took an a dverse action that would likely deter a person of ordinary firmness from con tinuing to engage in th e protected conduct; and (3) the adverse action was motivated at least in part by the Hiltons’ protected conduct. Bloch v. Ribar , 156 F.3d 673, 678 (6th Cir. 1998).Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 7 - each is distinguishable. In Fritz , the plaintiff opposed the Township’s actions. 592 F.3d at 725. After this opposition, the Township Supervisor made statements about the plaintiff to her employer and encouraged her employer to terminate her employment. Id. at 728. We held that a “person of ordinary firmness would be deterred from engaging in protect ed conduct, if as a result, a public official encouraged her empl oyer to terminate the person’s contract” because “few aspects of one’s life are more important than gainful employment.” Id. at 726–28. Relying on this case, the Hiltons argue th at Mish’s alleged defamatory st atements constituted an adverse action similar to the alleged defamatory statements in Fritz . However, this greatly oversimplifies Fritz

. Fritz does not stand for the propositi on that defamatory statemen ts alone are sufficient. Instead, the defamatory statements and the enco uragement of termination were sufficient. Id. at 727 (“[T]hese potentially defamatory statements we re not of such a character that they amounted to an adverse action taken on their own.”). In this case, the Hiltons fail to allege a similar action to that of affecting their employment.
In Barrett , the plaintiff alleged that a state-c ourt judge retaliated against him for investigating the j udge. 130 F.3d at 262. In the alleged re taliation, the judge is sued statements to the media that the plaintiff was stalking her. Id. Most importantly, we did not address whether the judge’s statements to the media constituted an advers e action—the only issue in this appeal. Instead, we considered whether the plai ntiff’s engagement in protected conduct was a substantial or motivating factor in th e judge’s statements to the media. Id. at 262–63. However, even putting that aside, Barrett is distinguishable from this case because the judge issued the statements to the public through medi a. In this case, Mish’s ema ils were only sent to a private individual.Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 8 - In Bloch , the plaintiff alleged that in response to newspaper articl es that were critical of the sheriff’s progress in investig ating a rape of the plaintiff, the sheriff held a public press conference. 156 F.3d at 676. In this press conference, the sher iff allegedly re leased highly embarrassing details of the rape that the plai ntiff had not even disclosed to her husband. Id. We held that the plaintiff adequately alleged an ad verse action because the sh eriff’s right to respond to the criticism did not extend to the releas e of irrelevant, humiliating, and confidential information. Id. at 681. However, Bloch is distinguishable from this case because the information was released in a publ ic press conference as opposed to sending an email to a single individual that was never disclose d to the public until a year later. Accordingly, even assuming that Mish’s co nduct violated the Hiltons’ constitutional rights, none of our precedents clearly establishe d this violation. The district court therefore appropriately granted qualif ied immunity to Mish.
II. Municipal Liability The Hiltons also argue that the district cour t erred in dismissing the City. Specifically, the Hiltons argue that the City is liable for Mish ’s conduct under a theory of municipal liability.
In Monell v. New York , the Supreme Court held that mu nicipalities can be subject to direct liability under § 1983 only when the action of the municipality itself can be said to have caused the harm. 436 U.S. 658, 690 (1978). “[I]t is when execution of a government’s policy or custom, whether made by its lawmak ers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983.” Id. at 694. “At the very least, there mu st be an affirmative link between the policy and the particular Cons titutional violation alleged.” Oklahoma City v. Tuttle , 471 U.S. 808, 823 (1985). Municipal liability is “limited to acts . . . . which the municipality hasCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 9 - officially sanctioned or ordered.” Pembaur v. City of Cincinnati , 475 U.S. 469, 479 (1986). It attaches “only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Id. at 481. The Hiltons allege that “Mish had ultimate au thority to represent the City in litigation and make decisions for how to perform those dutie s. As such, because she was an ultimate decisionmaker for how to perform these functions , her actions have the force and effect of policymaking, and, therefore, municipal liability w ill lie.” However, the facts set forth in the complaint fail to establish either that the City’s official polic y giving Mish th e authority to litigate cases “is responsible for [the] deprivat ion of [the Hiltons’ First Amendment] rights,” Monell , 436 U.S. at 690–91, or that the City “officially sanctioned or ordered” Mish to send the allegedly defamatory comments in the email. Pembaur , 475 U.S. at 479. At most, the City’s policy giving Mish the authority to litigate cases on its behalf allowed Mish to respond to criticism of litigation strategy of a pending case. However, the policy did not sanction or order Mish to defame the Hiltons to third parties, a nd the complaint contains no competent allegations to the contrary. Therefore, the “affirmative link between the policy and the [] Constitutional violation” is missing, and accord ingly, the complaint fails to plead facts that would support municipal liability. Tuttle , 471 U.S. at 823.
III. Intentional Infliction of Emotional Distress The Hiltons argue that the district cour t erred in dismissing their IIED claim. Specifically, the Hiltons argue that “Mish made this statement in a public document subject to production under FOIA” and that “[i] t was reasonably foreseeable th at this statement would get back to the Hiltons.”Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 10 - For a claim of IIED, plaintiffs must allege (1) extreme and outrage ous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. See Hayley v. Allstate Ins. Co. , 686 N.W.2d 273, 276 (Mich. Ct. App. 2004). “The conduct complained of must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and ut terly intolerable in a civilized community.’” Id. (quoting Graham v. Ford , 604 N.W.2d 713, 716 (Mich. Ct. App. 1999)). “The test to determine whether a pers on’s conduct was extreme and outrageous is whether recitation of the facts of the case to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”” Lewis v. LeGrow , 670 N.W.2d 675, 689 (Mich. Ct. App. 2003) . “Th[is] question should be presented to the jury if reasonable minds may differ regarding whet her the conduct was, indeed, extreme and outrageous.” Burke v. Detroit Pub. Sch., No. 262983, 2006 WL 1156366, at *12 (Mich. Ct. App. May 2, 2006). But, a defendant may not be held “liable for mere insults , indignities, threats, annoyances, petty oppressions, or other trivialities.” Lewis , 670 N.W.2d at 689 (quoting Doe v. Mills, 536 N.W.2d 824, 833 (Mich. Ct. App. 1995)). In this case, the portions of the email ca lling EH a “crack and heroin whore” are the closest statements to “extreme and outrageous c onduct,” as the rest of Mish’s email provides factual background to the lawsui t initiated by the Hiltons. Al though such statements are certainly shameful and inappropr iate, especially coming from a public official, we cannot find these statements actionable because they were only intended to be seen by a single unrelated third party through a private email, and the Hi ltons only became aware of the statements by chance roughly a year after they were made. U nder the circumstances presented by this case, Mish’s conduct does not clear the high bar for “outrageous” c onduct set by Michigan law. See,Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 11 - e.g. , Graham v. Ford , 604 N.W.2d 713, 716 (Mich. Ct. App. 1999) (finding “inconsiderate and thoughtless” conduct non-actionable in a lawsu it where the defendant allegedly made many racially insensitive comments). AFFIRMED

.Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 12 - HELENE N. WHITE, Circuit Judge, concurri ng in part and dissenting in part. I agree that the Hiltons cannot establish munici pal liability and therefor e the district court properly dismissed the claims against the Cit y. However, I dissent from the majority’s conclusions that the law was not clearly established at the time Mish sent the emails and that Mish’s emails failed to meet the threshold re quired to constitute outrageous conduct. A. First Amendment Retaliation At the motion to dismiss stage, it is at l east plausible that Mish was acting as City Attorney when she sent the ema ils from her official email acc ount. One of he r explic it duties was to litigate cases on behalf of the city. (Dkt . 9-3 at Page ID 87–88). Therefore, an “apparent duty of [Mish’s] job” would be to support any of the City’s litigati on strategies when criticized. See Waters v. City of Morristown, TN , 242 F.3d 353, 359 (6th Cir. 2001). Further, an attorney often represents her client’s view of a litigation matter to persons or entities other than the court. Here, Mish did not communicate her view of a case to a colleague, for example, but rather to a private attorney and community activist whom sh e knew communicated with the press. Finally,Mish was the lead counsel for the department handling the EH litigation. A governmentemployed lawyer making extrajudicial statements about her client’s pend ing litigation is acting in connection with the authority of her office. See Filarsky v. Delia , 566 U.S. 377, 383 (2012) (“Anyone whose conduct is ‘fairly a ttributable to the state’ can be sued as a state actor under § 1983.”) (citing Lugar v. Edmonson Oil Co. , 457 U.S. 922, 937 (1982)). Therefore, the district court erred in finding Mish was not acting under color of state law. The Hiltons’ complaint alleges two Fi rst Amendment retaliation claims under 42 U.S.C. § 1983. The first count alleges that Mish sent a defamatory email, in her official capacity as Grand Rapids’s attorn ey, in retaliation for plaintiffs’ lawsuit against the city and itsCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 13 - police department. The second count alleges that Mish sent her email in retaliation for Elise Hilton’s advocacy on behalf of, an d association with, her employe r, a non-profit think tank that was engaged in a tax dispute with the city at th e time the email was sent. To sufficiently state a retaliation claim, the Hiltons must allege: (1) they engaged in constitutionally protected conduct; (2) the defendant took an adverse action that w ould likely deter a person of ordinary firmness from continuing to engage in the protected conduct; and (3) the adverse action was motivated at least in part by the Hilt ons’ protected conduct. Bloch v. Ribar , 156 F.3d 673, 678 (6th Cir. 1998). The Hiltons engaged in constitutionally pr otected conduct in fili ng their action against Hope Academy and the GRPD. See California Motor Transp. Co. v. Trucking Unlimited , 404 U.S. 508, 510 (1972) (“Certainly the right to petition extends to al l departments of the Government. The right of access to the courts is indeed but one asp ect of the right of petition.”); see also Smith v. Arkansas State Highway Emp. Local 1315 , 441 U.S. 463, 464 (“The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his govern ment for redress of grievances.”). Mish took an adverse action by writing and sending the ema ils, and such actions would likely deter a person of ordinary firmness from c ontinuing to engage in the protected conduct. Bloch , 156 F.3d at 678. The Hiltons explain: Would a citizen still choose to associate with Acton if they knew that, in response for doing so, the City Attorney would re lease information a bout their daughter’s rape investigation? Would she still choos e to file a lawsuit if she knew that in response the City Attorney would contact private individuals and claim, falsely, that their daughter was a “crack and heroin whore?” Would she still speak about the dangers of sex trafficking if she kne w the City Attorney would state, in a publicly available document, that their daughter was “on an escapade trading sex for drugs?” The answ er is a resounding no. (Appellants’ Br. at 32–33).Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 14 - Although the district court ne ver addressed Mish’s motivati on to send the emails, it is plausible that Mish was “motivated at least in part” by Elise Hilton’s asso ciation with Acton and the Hiltons’ suit against GR PD. Mish both refers to the Acton property tax dispute and describes the events underlying the Hiltons’ suit against GRPD in great detail. (Dkt. 11-1 at Page ID 449) (“Perhaps you should ask the Acton Institute why they think they should be exempt from paying real property taxes? And why they are suing the City of Grand Rapids to demand their valuable government handout of that real property tax exemption?”); ( Id. at Page ID 450) (“Ms. Elise Hilton the Acton hypocrite dares to sue th e City of Grand Rapids . . .”). The Hiltons sufficiently stated a claim ag ainst Mish for First Amendment retaliation.
B. Qualified Immunity To overcome Mish’s defense of qualified i mmunity, the Hiltons must show that her alleged conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Distinguishing the cases relied on by the Hiltons, the majority concludes that “none of our precedents clearly established” a violation of the Hilton’s constitutional rights. I disagree.
In Fritz v. Charter Township of Comstock , 592 F.3d 718 (6th Cir. 2010), the plaintiff opposed the Township’s actions by attending public meetings and voicing her concern about what she believed were procedural errors. Id. at 720. After this opposition, the Township Supervisor made statements about the plaintiff to her employer, including mildly or potentially defamatory ones about her standing in the commun ity, and encouraged her employer to terminate her employment as an independent insurance agent. Id. at 725. The majority observes that Fritz does not stand for the proposition that defamatory statements are per se sufficient to establish an ad verse action. Maj. op. at p. 7. This is correct.Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 15 - However, Fritz makes clear that statements by a public official, defamatory or not, may be an adverse action depending on th eir nature. The court in Fritz simply found that any defamation that occurred under those facts was “not of such a character” as to itself be an adverse action.
See 592 F.3d at 727 (“The kinds of statements—both defamatory and not—that have been interpreted as adverse actions for the purposes of a retaliation claim are of a fundamentally different character than Plaintiff’s allegations th at Defendant Hudson falsely stated that she was violating ordinances and that there was a petition against her in the neighborhood.”). The court noted the type of statements that are objectio nable and potentially actionable are generally “highly embarrassing” and/or “i mpugn Plaintiff’s character.” Id. (citing Bloch , 156 F.3d at 679– 81). Here, Mish’s statements were highly emba rrassing and impugn both EH’s character and that of her parents. The Hiltons thus allege a constitutional violation that is clearly established by Fritz

. In Barrett v. Harrington , 130 F.3d 246 (6th Cir. 1997), the plaintiff alleged that a statecourt judge retaliated against hi m for investigating the judge. Specifically, the defendant judge told two reporters that the pl aintiff was stalking her. Id. at 262. The court found the defendant judge was not entitled to qualif ied immunity: “Harrington’s stat ements to the press fail the objective legal reasonableness te st because her conduct violated clearly established First Amendment rights of which a person in her position would have been cognizant.” Id. at 264. The majority emphasizes that Mish’s emails we re only sent to a private individual, while the defendant judge spoke to a reporter. Maj. op . at p. 7. However, although the defendant judge likely assumed that her comments would be dissem inated to others throu gh the two reporters she spoke to, Mish should have assumed the same when she sent her email to a local attorney andCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 16 - community activist, whom she knew kept in contact with the press. In fa ct, the Hilt ons allege Zerial forwarded the communi cation to the press the same day he received it. Further, although the actions of third parties can influence damages attributable to tortious conduct (i.e., A makes a defamatory co mment to B, B disseminates broadly), it does not follow that third-party exacerbation of the damage is an element of the tort itself. In other words, Mish made a defamatory statement to Zerial and that was the constitutional tort: it is irrelevant to liability if Zerial caused more damage to the Hiltons by disseminating the statement or influencing the press to widely disseminate it. Finally, in Bloch , a sheriff embarrassed a rape vict im who was critical of him by releasing embarrassing details abou t her assault at a press conference. This court held that the plaintiff adequately alleged an adverse action becau se the sheriff’s right to respond to criticism did not extend to the release of irrelevant , humiliating, and confidential information. 156 F.3d at 681. As in Barrett , that the sheriff released information to the press was not crucial to the court’s ruling; it was dissemination to a third party fo r the purpose of embarrassing or humiliating the person who had criticized him. See id. at 683 (“[Defendant] clearly had a right to respond to [plaintiffs’] criticism, but if the [plaintiffs] can prove that the intimate details of the rape were released in order to re taliate against their criticism, a r easonable officer should have known that the action violated the [plainti ffs’] rights and therefore cannot benefit from the doctrine of qualified immunity.”). Moreover, in Bloch , the defendant’s disclosure was of truthful information, but this court held that it could be re taliatory if intended to embarrass plaintiffs. Id. at 683. Here, the HiltonsCase No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 17 - allege that not only did Mish release informati on about a rape victim, but that she released incendiary, accusative information that sh e knew, or should have known, was false. 1
Under Fritz , Barrett , and Bloch , Mish’s emails constitute an adverse action under clearly established law. She is therefore not entitled to qualified immunity. C. Intentional Infliction of Emotional Distress As the majority concedes, the question wh ether a person’s conduct was extreme and outrageous “should be presented to the jury if reasonable minds ma y differ regarding whether the conduct was, indeed, extreme and outrageous.” Burke v. Detroit Pub. Sch., No. 262983, 2006 WL 1156366, at *12 (Mich. Ct. App. May 2, 2006). The majority finds Mish’s emails “shameful and inappropriate,” but nonactiona ble because “they were only in tended to be seen by a single unrelated third party through a private email, and the Hiltons only became aware of the statements by chance roughly a year after they were made.” Maj. op. at p. 10. I disagree. Mish was a senior public offici al responsible for representing the city, who allegedly had access to a fifteen-year-old rape vi ctim’s investigative and medical reports. She then sent a message to a member of the public falsely accusing 2 the minor victim of having engaged in promiscuous and criminal conduct, s uggesting that her parent s were at fault, and

1 The Hiltons allege that Mish had access to the investigation records both generally in her capacity as City Attorney and specifically given that the records were part of pending litigation against the city and t hus knew, or had reason to know, that EH was below the age of consent and thus could not have consented to sexu al activity. (Dkt. 1 at Page ID 1–16). Further, the investigation records show th at Mish’s allegations about EH were untrue because EH was taken to a YWCA for a rape k it and toxicology screen, and she later went to a hospital. ( Id. ). The toxicology screen was negative (e.g., she te sted negative for heroin and cocaine). ( Id. ).

2 Cf. Mich. Comp. Laws Ann. § 600.2911(1) (“Word s imputing a lack of chastity to any female or male are actionable in themselves and subject the person w ho uttered or published them to a civil action for the slander in the sa me manner as the uttering or publishing of words imputing the commission of a criminal offense.”).Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.

- 18 - recommending that the recipient reconsider his relationship with the victim’s mother (or her employer). By contemporary standards, such an email would be regarded by most as shocking and indecent. Assuming the truth of the factual allegations in plaintiffs’ complaint, reasonable jurors could find that “the conduct wa s, indeed, extreme and outrageous.” Therefore, the Hiltons have stated a claim against Mish for intentional infliction of emotional distress.