IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN, et al, 

 Plaintiffs, 

vs. 

CLARE COUNTY, et al., 

 Defendants, 

BILL SCHUETTE, 

Attorney General of the State of Michigan, 

Defendant-Intervenor.

Case No. 1:09-cv-11209 

Hon. Thomas L. Ludington 

/ 

For the Plaintiffs: 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

AMERICAN CIVIL LIBERTIES UNION 

 FUND OF MICHIGAN

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824 

dkorobkin@aclumich.org

msteinberg@aclumich.org

Hugh M. Davis (P12555) 

Cynthia Heenan (P53664) 

CONSTITUTIONAL LITIGATION 

 ASSOCIATES, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

For the Defendants: 

Patrick D. Aseltyne (P23293) 

Jason D. Kolkema (P55936) 

JOHNSON, ROSATI, LABARGE, ASELTYNE 

 & FIELD, P.C. 

303 S. Waverly Rd. 

Lansing, MI 48917 

(517) 886-3800 

paseltyne@jrlaf.com

jkolkema@jrlaf.com

For the Defendant-Intervenor: 

Margaret A. Nelson (P30342) 

Ann M. Sherman (P67762) 

MICHIGAN DEPARTMENT OF 

 ATTORNEY GENERAL 

P.O. Box 30736 

Lansing, MI 48909 

(517) 373-6434 

nelsonm9@michigan.gov

shermana@michigan.gov

/ 

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.663 Filed 02/22/11 Page 1 of 29
Plaintiffs hereby move this Court to enter partial summary judgment on their claims 

against Defendants Clare County and Lawrence Kahsin. See Fed. R. Civ. P. 56(a). Plaintiffs are 

entitled to summary judgment against Clare County because Michigan’s funeral protest statute, 

M.C.L. § 750.167d, is unconstitutional, and the Lowdens were arrested as a result of the 

County’s official policy to enforce it. Plaintiffs are also entitled to summary judgment against 

Kahsin because Kahsin applied the statute in a manner that violated the Lowdens’ clearly 

established constitutional rights under the First, Fourth, and Fourteenth Amendments. Summary 

judgment may be entered as to liability alone, with the issue of damages set for a jury trial. 

In addition, because summary judgment is required against Clare County for enforcing an 

unconstitutional statute, Plaintiffs request that the Court exercise its discretion at this time to 

grant their pending motion for a declaratory judgment (Dkt. # 59) and declare the statute 

unconstitutional. See Fed. R. Civ. P. 57. 

Plaintiffs’ counsel conferred with Defendants’ counsel, explained the nature of this 

motion and its legal basis, and requested but did not obtain concurrence in the relief sought. 

A brief in support of this motion is attached. 

Respectfully submitted, 

Hugh M. Davis (P12555) 

Cynthia Heenan (P53664) 

Constitutional Litigation 

 Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

/s/ Daniel S. Korobkin 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824 

dkorobkin@aclumich.org

msteinberg@aclumich.org

Attorneys for Plaintiffs 

Dated: February 22, 2011 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.664 Filed 02/22/11 Page 2 of 29
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN, et al, 

 Plaintiffs, 

vs. 

CLARE COUNTY, et al., 

 Defendants, 

BILL SCHUETTE, 

Attorney General of the State of Michigan, 

Defendant-Intervenor.

Case No. 1:09-cv-11209 

Hon. Thomas L. Ludington 

/ 

For the Plaintiffs: 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

AMERICAN CIVIL LIBERTIES UNION 

 FUND OF MICHIGAN

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824 

dkorobkin@aclumich.org

msteinberg@aclumich.org

Hugh M. Davis (P12555) 

Cynthia Heenan (P53664) 

CONSTITUTIONAL LITIGATION 

 ASSOCIATES, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

For the Defendants: 

Patrick D. Aseltyne (P23293) 

Jason D. Kolkema (P55936) 

JOHNSON, ROSATI, LABARGE, ASELTYNE 

 & FIELD, P.C. 

303 S. Waverly Rd. 

Lansing, MI 48917 

(517) 886-3800 

paseltyne@jrlaf.com

jkolkema@jrlaf.com

For the Defendant-Intervenor: 

Margaret A. Nelson (P30342) 

Ann M. Sherman (P67762) 

MICHIGAN DEPARTMENT OF 

 ATTORNEY GENERAL

P.O. Box 30736 

Lansing, MI 48909 

(517) 373-6434 

nelsonm9@michigan.gov

shermana@michigan.gov

/ 

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR 

MOTION FOR PARTIAL SUMMARY JUDGMENT 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.665 Filed 02/22/11 Page 3 of 29
ii

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iv 

INTRODUCTION ...........................................................................................................................1 

PROCEDURAL HISTORY.............................................................................................................2 

FACTS .............................................................................................................................................3 

SUMMARY-JUDGMENT STANDARD .......................................................................................6 

ARGUMENT ...................................................................................................................................7 

I. PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT

AGAINST CLARE COUNTY BECAUSE THE FUNERAL PROTEST 

STATUTE IS UNCONSTITUTIONAL AND THE COUNTY’S POLICY

TO ENFORCE IT WAS A MOVING FORCE BEHIND THE LOWDENS’ 

ARREST. ....................................................................................................................7 

A. The Lowdens’ Constitutional Rights Were Violated Because They 

Were Arrested For Violating the Funeral Protest Statute, Which Is 

Unconstitutional On Its Face. ............................................................................8 

B. Clare County’s Policy To Enforce the Funeral Protest Statute Was a 

Moving Force Behind the Lowdens’ Arrest. .....................................................9 

1. It Was Clare County’s Official Policy To Enforce the 

Funeral Protest Statute. ...........................................................................10

2. The County’s Policy Was a Moving Force Behind the 

Lowdens’ Arrest......................................................................................12 

II. PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT

AGAINST DEFENDANT KAHSIN BECAUSE HE VIOLATED THE 

LOWDENS’ CLEARLY ESTABLISHED FIRST, FOURTH, AND 

FOURTEENTH AMENDMENT RIGHTS. .............................................................13 

A. Kahsin Violated the Lowdens’ Clearly Established First Amendment 

Rights By Enforcing the Funeral Protest Law Based on the Content of 

Their Speech. ...................................................................................................14 

B. Kahsin Violated the Lowdens’ Clearly Established Fourth Amendment 

Rights Because There Was No Reasonable Suspicion or Probable 

Cause To Believe They Were Committing Any Crime. ..................................16 

1. Kahsin Stopped the Lowdens Without Reasonable Suspicion. ..............17 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.666 Filed 02/22/11 Page 4 of 29
iii

2. Kahsin Arrested the Lowdens Without Probable Cause. ........................18 

3. There Are No Genuine Disputes of Material Fact. .................................19 

4. Qualified Immunity Should Be Denied. .................................................20 

C. Kahsin Violated the Lowdens’ Clearly Established Due Process 

Rights by Arresting Them for Violating a Statute That Was 

Unconstitutionally Vague As Applied to Them. .............................................20 

III. THE COURT SHOULD ENTER A JUDGMENT DECLARING THE 

FUNERAL PROTEST STATUTE UNCONSTITUTIONAL. .................................21 

CONCLUSION ..............................................................................................................................22 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.667 Filed 02/22/11 Page 5 of 29
iv

TABLE OF AUTHORITIES 

Cases 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................7 

Boos v. Barry, 485 U.S. 312 (1988) ...............................................................................................14 

Brown v. Texas, 443 U.S. 47 (1979) ..............................................................................................17 

Carey v. Nevada Gaming Control Bd., 279 F.3d 873 (9th Cir. 2002) .............................................8 

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ..................................................................................17 

Devenpeck v. Alford, 543 U.S. 146 (2002) ....................................................................................18 

Feathers v. Aey, 319 F.3d 843 (6th Cir. 2003) ..............................................................................20 

Frisby v. Schultz, 487 U.S. 474 (1988) ..........................................................................................14 

Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000) ..................................................................20 

Garner v. Memphis Police Dep’t, 8 F.3d 358 (6th Cir. 1993) .................................................11, 12 

Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009) ............................................................................13 

Hale v. Kart, 396 F.3d 721 (6th Cir. 2005)....................................................................................19 

Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007) ................................................................18, 21 

Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007) ...........................................................................14 

Lowden v. County of Clare (“Lowden I”), 709 F. Supp. 2d 540 (E.D. Mich. 2010) ............. passim 

Lowden v. County of Clare (“Lowden II”), 709 F. Supp. 2d 569 (E.D. Mich. 2010) ................3, 21 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).......................................7 

Meyers v. City of Cincinnati, 14 F.3d 1115 (6th Cir. 1994) ..........................................................10 

Miller v. Sanilac County, 606 F.3d 240 (6th Cir. 2010) ..................................................................7 

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) ...........................................................7, 10, 11 

Owens v. City of Independence, 445 U.S. 622 (1980) ...................................................................13 

Palmer v. City of Euclid, 402 U.S. 544 (1971) (per curiam) .........................................................20 

Parsons v. City of Pontiac, 533 F.3d 492 (6th Cir. 2008) .............................................................20 

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .....................................................................10 

Pillow v. City of Lawrenceburg, 319 F. App’x 347 (6th Cir. 2008) ..............................................16 

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009) .............................................................14 

Powers v. Hamilton County Public Defender Comm’n, 501 F.3d 592 (6th Cir. 2007) ...................8

Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005) ...............................................20 

Sandul v. Larion, 119 F.3d 1250 (6th Cir. 1997) ...........................................................................18 

Saucier v. Katz, 533 U.S. 194 (2001) ............................................................................................13 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.668 Filed 02/22/11 Page 6 of 29
v

Smith v. Goguen, 415 U.S. 566 (1974) ..........................................................................................21 

Swiecicki v. Delgado, 463 F.3d 489 (6th Cir. 2006) ......................................................................18 

Thompson v. Campbell, 81 F. App’x 563 (6th Cir. 2003) .............................................................13 

United States v. Arvizu, 534 U.S. 266 (2002) ................................................................................17 

United States v. Gross, 624 F.3d 309 (6th Cir. 2010) ....................................................................18 

United States v. Keith, 559 F.3d 499 (6th Cir. 2009).....................................................................17 

Vives v. City of New York, 524 F.3d 346 (2d Cir. 2008) ................................................................11 

Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997) ........................................8 

Statutes 

28 U.S.C. § 2201 ............................................................................................................................22 

42 U.S.C. § 1983 ..............................................................................................................................7 

M.C.L. § 750.167d .................................................................................................................1, 7, 19 

Rules 

Fed. R. Civ. P. 56 .............................................................................................................................6 

Fed. R. Civ. P. 57 ...........................................................................................................................22 

Other Authority 

Wright, Miller & Kane, Federal Practice and Procedure (3d ed.) .................................................7 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.669 Filed 02/22/11 Page 7 of 29
1

INTRODUCTION 

Lewis and Jean Lowden were engaged in completely innocent activity—attending the 

funeral of a close family friend, Corporal Todd Motley—when they were arrested and taken to 

jail for allegedly violating Michigan’s funeral protest statute, M.C.L. § 750.167d.1

 Although 

they were driving in the funeral procession at the invitation of Corporal Motley’s family and did 

nothing to disrupt the procession or funeral, the Lowdens were stopped and arrested solely 

because the van they were driving happened to display signs critical of then-President Bush and 

other government officials and policies. 

Plaintiffs brought this suit to challenge the constitutionality of the funeral protest statute 

on its face and as applied. They now seek partial summary judgment against two of the 

defendants in this case, Clare County and Sheriff’s Deputy Lawrence Kahsin. Plaintiffs are 

entitled to summary judgment against Clare County because the funeral protest statute is 

unconstitutional and the Lowdens were arrested as a result of the County’s official policy to 

 

1

 The statute provides as follows: 

A person shall not do any of the following within 500 feet of a 

building or other location where a funeral, memorial service, or 

viewing of a deceased person is being conducted or within 500 feet 

of a funeral procession or burial: 

(a) Make loud and raucous noise and continue to do so after being 

asked to stop. 

(b) Make any statement or gesture that would make a reasonable 

person under the circumstances feel intimidated, threatened, or 

harassed. 

(c) Engage in any other conduct that the person knows or should 

reasonably know will disturb, disrupt, or adversely affect the 

funeral, memorial service, viewing of the deceased person, 

funeral procession, or burial. 

M.C.L. § 750.167d(1). Violation of the statute is punishable as a felony. Id. § 750.167d(2). 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.670 Filed 02/22/11 Page 8 of 29
2

enforce it. Plaintiffs are also entitled to summary judgment against Deputy Kahsin because 

Kahsin applied the statute in a manner that violated the Lowdens’ clearly established 

constitutional rights under the First, Fourth, and Fourteenth Amendments. In addition, because 

summary judgment is required against Clare County for enforcing an unconstitutional statute, 

Plaintiffs request that the Court exercise its discretion at this time to grant their pending motion 

for a declaratory judgment (Dkt. # 59) and declare the statute unconstitutional. 

PROCEDURAL HISTORY 

The Court has already made several important rulings in this case on questions of law. 

Shortly after this action commenced, Defendants filed a motion for dismissal and judgment on 

the pleadings, which the Court denied. The County, while not defending the constitutionality of 

the funeral protest statute, argued that it could not be held liable for enforcing an unconstitutional

state law. This Court rejected that argument, holding that Plaintiffs could prevail by proving that 

the law was facially unconstitutional and the County had a policy of enforcing it. Lowden v. 

County of Clare (“Lowden I”), 709 F. Supp. 2d 540, 566-68 (E.D. Mich. 2010) (Dkt. # 52 at 43-

47). Meanwhile, the Attorney General intervened to defend the constitutionality of the statute. 

The Court rejected the Attorney General’s arguments as well, finding that the statute was likely 

unconstitutional on its face under the overbreadth doctrine of the First Amendment and the 

vagueness doctrine of the Fourteenth Amendment. Id. at 551-65 (Dkt. # 52 at 16-41). 

In addition to allowing the case to proceed on Plaintiffs’ facial claims against the County, 

the Court denied Defendants’ motion to dismiss Plaintiffs’ as-applied claims against the two 

police officers who arrested the Lowdens, Lawrence Kahsin and Calvin Woodcock. Id. at 550-

51, 555, 564-65 (Dkt. # 52 at 15, 23-24, 39-41). Although the Court concluded that a reasonable 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.671 Filed 02/22/11 Page 9 of 29
3

officer might not know that the statute was invalid on its face, the Court held that the manner in 

which Kahsin applied the law in this case—assuming the facts alleged in the complaint were 

true—violated the Lowdens’ First, Fourth, and Fourteenth Amendment rights under clearly 

established law. Id. at 550 (Dkt. # 52 at 14-15). 

Finally, in a subsequent decision after supplemental briefing, the Court decided that it 

would exercise its discretion to entertain Plaintiffs’ motion for a declaratory judgment on the 

constitutionality of the funeral protest statute. Lowden v. County of Clare (“Lowden II”), 709 F. 

Supp. 2d 569 (E.D. Mich. 2010) (Dkt. # 58). Plaintiffs’ motion for a declaratory judgment (Dkt. 

# 59) remains pending. 

FACTS 

The rulings described above were made on the pleadings alone. Although in some cases 

discovery reveals that a plaintiff’s most serious allegations are not supported by the evidence, in 

this case the exact opposite is true. Now that discovery is complete, all the material facts alleged 

in Plaintiffs’ complaint are supported by record evidence and are not subject to genuine dispute. 

On September 26, 2007, the small town of Harrison, Michigan, was host to a funeral and 

a funeral procession for Corporal Todd Motley, a soldier from Clare County who had been killed 

in action in Iraq while serving in the United States Army. (Am. Compl. and Answer,2

 Ex. A, 

¶¶ 18, 21; Lowden Dep., Ex. B, at 18.) The event was widely publicized in advance, and local 

law enforcement officials mobilized to provide security and direct traffic. (Am. Compl. and 

Answer, Ex. A, ¶ 21; Goyt Dep., Ex. C, at 7, 11-13.) 

 

2

 “Am. Compl. and Answer” refers to Plaintiffs’ First Amended Complaint (Dkt. # 69), 

its supporting Declaration of Lewis Lowden (Ex. A), and Defendants’ Answer (Dkt. # 76 and 

Ex. A). 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.672 Filed 02/22/11 Page 10 of 29
4

Clare County Sheriff Jeffery Goyt and Clare County Prosecutor Norman Gage were 

concerned by recent news stories about an unpopular church group from Kansas that staged 

protests near military funerals. (Goyt Dep., Ex. C, at 9; Gage Dep., Ex. D, at 13-14.) They had 

also recently learned that the Michigan Legislature had enacted a criminal statute to deter such 

protests. (Goyt Dep., Ex. C, at 10; Gage Dep., Ex. D, at 13-14.) They discussed the matter, and 

Sheriff Goyt asked Prosecutor Gage to locate the statute so it could be provided to the police 

officers who would be on duty at the funeral and procession. (Goyt Dep., Ex. C, at 10, 20; Gage 

Dep., Ex. D, at 14-16.) Prior to the Motley funeral, Goyt and Gage held a briefing where they 

distributed copies of the statute. (Goyt Dep., Ex. C, at 13, Kahsin Dep., Ex. E, at 8-9, 34.) 

Deputy Kahsin was at the briefing. (Kahsin Dep., Ex. E, at 8-11, 34.) 

Lewis Lowden and his wife Jean Lowden were devastated by Corporal Motley’s death. 

(Am. Compl. and Answer, Ex. A, ¶ 19.) They had known Corporal Motley and his family for 

many years. (Am. Compl. and Answer, Ex. A, ¶ 19; Lowden Dep., Ex. B, at 13.) Jean 

homeschooled Todd in high school, and Lewis took him on fishing and camping trips in the 

summer. (Am. Compl. and Answer, Ex. A, ¶ 19; Lowden Dep., Ex. B, at 13.) Lewis was 

himself a U.S. Army veteran, and he had encouraged Todd to serve in the Armed Forces. 

(Lowden Dep., Ex. B, at 14.) 

Corporal Motley’s family invited the Lowdens to attend and to participate in Corporal 

Motley’s funeral service and funeral procession. (Am. Compl. and Answer, Ex. A, ¶ 20; Lowden 

Dep., Ex. B, at 15.) The procession through downtown Harrison was a heavily attended event. 

(Am. Compl. and Answer, Ex. A, ¶ 21; Lowden Dep., Ex. B, at 19.) Hundreds of onlookers 

lined the streets to pay their respects to Corporal Motley. (Am. Compl. and Answer, Ex. A, ¶ 21; 

Lowden Dep., Ex. B, at 19.) Many waved American flags and displayed signs thanking Corporal 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.673 Filed 02/22/11 Page 11 of 29
5

Motley for his service to our country. (Am. Compl. and Answer, Ex. A, ¶ 21; Kahsin Dep., Ex. 

E, at 38-39; Procession Photographs, Ex. F.) 

The Lowdens drove to the funeral in their Dodge Ram van. (Am. Compl. and Answer, 

Ex. A, ¶ 22; Lowden Dep., Ex. B, at 15.) For several years, Lewis had taped homemade signs 

to the inside windows of his van. (Am. Compl. and Answer, Ex. A, ¶ 23; Lowden Dep., Ex. B, 

at 15-16.) The signs, similar to bumper stickers, contained statements visible to observers 

outside the van. (Am. Compl. and Answer, Ex. A, ¶ 23; Van Photographs, Ex. G.) The 

statements on the signs were political in nature; most were critical of then-President Bush and 

government policies. (Am. Compl. and Answer, Ex. A, ¶ 23; Kahsin Dep., Ex. E, at 37, 42; Van 

Photographs, Ex. G; Van Signs, Ex. H.) The Lowdens had driven the van with these signs for 

years without incident. (Am. Compl. and Answer, Ex. A, ¶ 23; Lowden Dep., Ex. B, at 16.) 

They were still on display when the Lowdens arrived for Corporal Motley’s funeral. (Am. 

Compl. and Answer, Ex. A, ¶ 24; Lowden Dep., Ex. B, at 17-18.) The signs did not contain any 

statements critical of the military or Corporal Motley. (Am. Compl. and Answer, Ex. A, ¶ 24; 

Lowden Dep., Ex. B, at 75; Van Signs, Ex. H.) No one at the funeral made any comment to the 

Lowdens about the signs on their van. (Am. Compl. and Answer, Ex. A, ¶ 25; Lowden Dep., Ex. 

B, at 20-21.) 

Following a church service, the Lowdens entered the funeral procession and drove for 

one to two miles. (Am. Compl. and Answer, Ex. A, ¶ 26; Lowden Dep., Ex. B, at 21, 61.) 

Deputy Kahsin, who was directing funeral traffic along the procession route, was informed by a 

fellow officer at a different location that there was a van in the funeral procession with antigovernment protest signs in its windows. (Am. Compl. and Answer, Ex. A, ¶ 27; Kahsin Dep., 

Ex. E, at 12; Bailey Dep., Ex. I, at 12-13.) Although he had no information to suggest that the 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.674 Filed 02/22/11 Page 12 of 29
6

Lowdens’ participation in the funeral procession had caused any disruption or disturbance, 

Deputy Kahsin ordered the Lowdens to pull over to the side of the road. (Am. Compl. and 

Answer, Ex. A, ¶ 29; Lowden Dep., Ex. B, at 21-22; Kahsin Dep., Ex. E, at 12-16, 41; Hager 

Dep., Ex. J, at 35.) 

Deputy Kahsin approached the Lowdens’ van and asked Lewis why he had signs in his 

windows. (Am. Compl. and Answer, Ex. A, ¶ 31.) Lewis replied that it was his First 

Amendment right to criticize the government. (Am. Compl. and Answer, Ex. A, ¶ 31.) Deputy 

Kahsin then asked both Jean and Lewis if they were protesting. (Am. Compl. and Answer, Ex. 

A, ¶ 31.) They both replied that they were not protesting and that they were there to attend the 

funeral because they were like family to Corporal Motley. (Am. Compl. and Answer, Ex. A, ¶ 

31.) Nonetheless, Deputy Kahsin placed Lewis and Jean under arrest for allegedly violating the 

funeral protest statute, M.C.L. § 750.167d. (Am. Compl. and Answer, Ex. A, ¶ 32; Kahsin Dep., 

Ex. E, at 22-24, 40.) 

After arresting the Lowdens, Kahsin took their van into police custody and searched it. 

(Kahsin Dep., Ex. E, at 27-28.) The Lowdens were detained in jail for approximately 24 hours 

before being released on personal recognizance. (Am. Compl. and Answer, Ex. A, ¶ 33; Lowden 

Dep., Ex. B, at 28, 30.) The criminal charges against them were eventually dismissed. (Am. 

Compl. and Answer, Ex. A, ¶ 34; Lowden Dep., Ex. B, at 30.) This suit followed. 

SUMMARY-JUDGMENT STANDARD 

A motion for summary judgment must be granted if the movant shows that “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). “Where the record taken as a whole could not lead a rational trier of 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.675 Filed 02/22/11 Page 13 of 29
7

fact to find for the non-moving party,” there is no genuine dispute of material fact. Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central inquiry is 

“whether the evidence presents a sufficient disagreement to require submission to a jury or 

whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 251-52 (1986). Partial summary judgment may be entered for a 

plaintiff as to liability alone, with the issue of damages proceeding to trial. 10B Wright, Miller 

& Kane, Federal Practice and Procedure § 2736 (3d ed.). 

ARGUMENT 

I. PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY 

JUDGMENT AGAINST CLARE COUNTY BECAUSE THE 

FUNERAL PROTEST STATUTE IS UNCONSTITUTIONAL AND 

THE COUNTY’S POLICY TO ENFORCE IT WAS A MOVING 

FORCE BEHIND THE LOWDENS’ ARREST. 

The liability of counties and other municipal entities under 42 U.S.C. § 1983 is governed 

by Monell v. Department of Social Services, 436 U.S. 658 (1978). Under Monell, if an “action 

pursuant to official municipal policy of some nature caused a constitutional tort,” then the 

municipality is liable as the wrongdoer. Id. at 691. “To succeed on a municipal liability claim, a 

plaintiff must establish that his or her constitutional rights were violated and that a policy or 

custom of the municipality was the ‘moving force’ behind the deprivation of the plaintiff’s 

rights.” Miller v. Sanilac County, 606 F.3d 240, 254-55 (6th Cir. 2010). 

In this case, the Lowdens’ constitutional rights were violated because the statute they 

were arrested for violating, M.C.L. § 750.167d, is facially unconstitutional. Summary judgment 

should be entered against Clare County because its official policy was to enforce the statute and 

that policy was a moving force behind the Lowdens’ arrest. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.676 Filed 02/22/11 Page 14 of 29
8

A. The Lowdens’ Constitutional Rights Were Violated Because They 

Were Arrested For Violating the Funeral Protest Statute, Which 

Is Unconstitutional On Its Face. 

The first question under the Monell doctrine is whether the Lowdens’ constitutional rights 

were violated. See Powers v. Hamilton County Public Defender Comm’n, 501 F.3d 592, 606-07 

(6th Cir. 2007) (describing two-pronged inquiry for municipal liability). It is unlawful to enforce 

a facially unconstitutional statute, Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 193 

(6th Cir. 1997), and if a statute is unconstitutional a person “suffer[s] constitutional injury by 

being arrested under [its] authority,” Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 880 

(9th Cir. 2002). Here, it is undisputed that the Lowdens were arrested for violating the funeral 

protest statute. (Am. Compl. and Answer, Ex. A, ¶ 32; Kahsin Dep., Ex. E, at 11, 28, 40.) 

Therefore, assuming the funeral protest statute is unconstitutional, the Lowdens’ constitutional 

rights were violated when they were arrested under its authority. 

The constitutionality of the funeral protest statute has already been the subject of 

exhaustive briefing in this case, both by Plaintiffs and by the Attorney General as DefendantIntervenor. For the sake of brevity, therefore, Plaintiffs hereby incorporate by reference the 

arguments set forth on pages 7-25 of their brief in support of their motion for partial judgment on 

the pleadings (Dkt. # 31) and in their two reply briefs on the same motion (Dkt. ## 43, 51). 

After argument and briefing from both sides, this Court agreed with all of Plaintiffs’ 

arguments challenging the facial validity of the statute and has found that the statute is likely 

unconstitutional on its face. See Lowden I, 709 F. Supp. 2d at 551-65 (Dkt. # 52 at 16-41). 

Addressing Plaintiffs’ facial challenge under the vagueness doctrine of the Fourteenth 

Amendment, the Court ruled that “Plaintiffs have made a compelling case that the Michigan 

statute is unconstitutionally vague both because it does not provide ordinary people with fair 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.677 Filed 02/22/11 Page 15 of 29
9

warning of what conduct is prohibited and also does not provide adequate direction to law 

enforcement.” Id. at 554 (Dkt. # 52 at 22). As to Plaintiffs’ First Amendment challenge, the 

Court concluded that “it is likely that the Michigan funeral protest [statute] is unconstitutionally 

overbroad on its face in violation of the First Amendment.” Id. at 564 (Dkt. # 52 at 38). 

Specifically, the Court found that “Plaintiffs’ argument that the statute prohibits a substantial 

amount of protected conduct is persuasive, particularly given the vagueness of the term 

‘adversely affects,’” id. at 557 (Dkt. # 52 at 26); that “it is likely that the . . . statute is not content 

neutral,” id. at 560 (Dkt. # 52 at 31-32); that “it is likely that the . . . statute is not narrowly 

tailored,” id. at 563 (Dkt. # 52 at 37); and that “[i]t is likely that the statute does not leave open 

ample alternatives for communication,” id. (Dkt. # 52 at 38). 

The Court has not yet made a definitive ruling on the constitutionality of the statute, but 

now that discovery is complete and there are no genuine disputes of fact, Plaintiffs’ facial 

challenge is ripe for adjudication. The Court should find that the statute is unconstitutional on its

face and that the Lowdens were deprived of their constitutional rights when they were arrested 

for violating it. 

B. Clare County’s Policy To Enforce the Funeral Protest Statute Was 

a Moving Force Behind the Lowdens’ Arrest. 

Not only were the Lowdens’ constitutional rights violated by their arrest under a facially 

unconstitutional statute, Plaintiffs have also alleged—and now proved—that municipal policy 

was a moving force behind the arrest. Through the directives of its sheriff and prosecutor, Clare 

County’s official policy was to enforce the funeral protest statute. Based on this policy, Deputy 

Kahsin arrested the Lowdens. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.678 Filed 02/22/11 Page 16 of 29
10

1. It Was Clare County’s Official Policy To Enforce the 

Funeral Protest Statute. 

Municipal policy need not be a written ordinance; it may be a “statement” or “decision” 

by a high-ranking official, such as a sheriff or prosecutor, “whose edicts or acts may fairly be 

said to represent official policy.” Monell, 436 U.S. at 690, 694. In Pembaur v. City of 

Cincinnati, 475 U.S. 469 (1986), the Supreme Court held that municipal liability may be 

imposed for a single decision by an official—in that case, the county prosecutor—who 

“possesses final authority to establish municipal policy with respect to the action ordered.” Id. at 

482. As the Sixth Circuit explained in Meyers v. City of Cincinnati, 14 F.3d 1115 (6th Cir. 

1994): 

The requirement that a municipality’s wrongful actions be a 

“policy” is not meant to distinguish isolated incidents from general 

rules of conduct promulgated by city officials. It is meant to 

distinguish those injuries for which the government as an entity is 

responsible under § 1983 from those injuries for which the 

government should not be held accountable. 

Id. at 1117 (quotation marks and citation omitted). 

The question in this case, therefore, is whether Deputy Kahsin was acting entirely on his 

own in arresting the Lowdens for violating the funeral protest statute, or whether he was acting 

instead pursuant to a municipal policy to make arrests of that nature. In denying the County’s 

motion to dismiss, this Court agreed with Plaintiffs that it was plausible that high-ranking county 

officials “whose edits or acts may fairly be said to represent official policy” knew about Corporal 

Motley’s funeral in advance, had concerns about the possibility of protests at the funeral, and 

therefore decided that anyone who protested should be stopped and arrested under Michigan’s 

new funeral protest statute. Lowden I, 709 F. Supp. 2d at 566-68 (Dkt. # 52 at 43-47.) In fact, 

that is exactly what happened. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.679 Filed 02/22/11 Page 17 of 29
11

Clare County Sheriff Jeffery Goyt and Clare County Prosecutor Norman Gage had final 

policymaking authority with respect to law enforcement issues in the county. (Gage Dep., Ex. D, 

at 9, 27-28; Kahsin Dep., Ex. E, at 34-35.) They were both concerned by recent news stories 

about an unpopular church group from Kansas that staged protests near military funerals. (Goyt 

Dep., Ex. C, at 9; Gage Dep., Ex. D, at 13-14.) They had also recently learned that the Michigan 

Legislature had enacted a criminal statute to deter such protests. (Goyt Dep., Ex. C, at 10; Gage 

Dep., Ex. D, at 13-14.) They discussed the matter, and Sheriff Goyt asked Prosecutor Gage to 

locate the statute so it could be provided to the police officers who would be on duty at Corporal 

Motley’s funeral and procession. (Goyt Dep., Ex. C, at 10, 20; Gage Dep., Ex. D, at 14-17.) 

Shortly before the funeral, Goyt and Gage held a briefing where they distributed copies of the 

statute. (Goyt Dep., Ex. C, at 13; Kahsin Dep., Ex. E, at 8-9, 34.) Goyt made a brief speech 

introducing the purpose of the briefing, and Gage advised the police officers in attendance that 

they could enforce the funeral protest statute (Kahsin Dep., Ex. E, at 34; Defs.’ Resp. to Pls.’ 

Interrogs., Ex. K, at 3). The officers in attendance, including Deputy Kahsin, reasonably 

concluded that it was the County’s policy to enforce the funeral protest statute. (Kahsin Dep., 

Ex. E, at 10; Hager Dep., Ex. J, at 15.) 

Thus, this is not a case in which an individual officer made an unconstitutional arrest and 

a plaintiff is seeking municipal liability based solely on a theory of respondeat superior. See 

Monell, 436 U.S. at 691. It is a case in which high-ranking municipal officials with final 

policymaking authority made a conscious decision to enforce an unconstitutional statute. See

Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993); Vives v. City of New York, 524 

F.3d 346 (2d Cir. 2008). That decision is a “policy” under Monell and Pembaur, and Clare 

County is liable for the constitutional torts caused by that policy. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.680 Filed 02/22/11 Page 18 of 29
12

2. The County’s Policy Was a Moving Force Behind the 

Lowdens’ Arrest. 

Finally, in addition to proving that Clare County had an unconstitutional policy, Plaintiffs 

must demonstrate a causal relationship between the policy and the Lowdens’ arrest—in other 

words, that the policy was a “moving force” behind the violation of their constitutional rights. 

See Garner, 8 F.3d at 364-65 (concluding that police department’s unconstitutional policy 

authorizing deadly force against nondangerous fleeing felons caused the death of plaintiff’s son). 

In this case, the “moving force” element is easily satisfied and undisputed. Shortly 

before the Motley funeral, Sheriff Goyt and Prosecutor Gage held a briefing where they 

distributed copies of the new funeral protest statute and advised the police officers in attendance 

that they could enforce the funeral protest statute. (Goyt Dep., Ex. C, at 13; Kahsin Dep., Ex. E, 

at 8-9, 34; Defs.’ Resp. to Pls.’ Interrogs., Ex. K, at 3.) Deputy Kahsin was at the briefing. 

(Kahsin Dep., Ex. E, at 8-11, 34.) Based on this briefing, Kahsin reasonably understood that it 

was the policy of the County to enforce the statute. (Kahsin Dep., Ex. E, at 10.) And when he 

enforced the statute by arresting the Lowdens, he did so based on what he learned at the briefing. 

(Kahsin Dep., Ex. E, at 11.) 

In sum, the County’s highest ranking law enforcement officials made a decision to 

enforce the funeral protest statute at Todd Motley’s funeral, leading directly to the arrest of 

Lewis and Jean Lowden. That statute is unconstitutional on its face. Clare County, therefore, is 

liable for the arrest. Partial summary judgment should issue. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.681 Filed 02/22/11 Page 19 of 29
13

II. PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY 

JUDGMENT AGAINST DEFENDANT KAHSIN BECAUSE HE 

VIOLATED THE LOWDENS’ CLEARLY ESTABLISHED FIRST, 

FOURTH, AND FOURTEENTH AMENDMENT RIGHTS. 

This lawsuit is a challenge to the funeral protest statute both on its face and as applied. 

With respect to Plaintiffs’ facial challenge, the Lowdens’ constitutional rights were violated by 

their arrest under the funeral protest statute because it is always unlawful to enforce a facially 

unconstitutional statute and a person arrested under the authority of such a statute suffers a 

constitutional injury. (See supra p. 8.) This Court has already ruled that Deputy Kahsin is 

“entitled to qualified immunity on Plaintiffs’ facial challenges” because it was not “clearly 

established,” at the time of the Lowdens’ arrest, that the funeral protest statute was 

unconstitutional on its face. Lowden I, 709 F. Supp. 2d at 550 (Dkt. # 52 at 14) (emphasis 

added). Therefore, liability on Plaintiffs’ facial challenges runs only against the County, which 

cannot claim qualified immunity. See Owens v. City of Independence, 445 U.S. 622, 638 (1980).

Plaintiffs’ surviving claims against Deputy Kahsin, by contrast, are based on the manner 

and circumstances in which he applied the statute—and more specifically, whether that 

particular application of the statute violated the Lowdens’ clearly established constitutional 

rights under the First, Fourth, and Fourteenth Amendments. See, e.g., Thompson v. Campbell, 81 

F. App’x 563, 569 (6th Cir. 2003) (analyzing facial and as-applied challenges as “distinct 

constitutional claim[s]”). Qualified immunity must be denied “‘if it would be clear to a 

reasonable officer that his conduct was unlawful in the situation he confronted.’” Grawey v. 

Drury, 567 F.3d 302, 314 (6th Cir. 2009) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). 

At the same time this Court determined Kahsin was entitled to qualified immunity on Plaintiffs’ 

facial challenges, the Court held that Kahsin is “not entitled to qualified immunity on Plaintiffs’ 

as applied claims because . . . it was clearly established that enforcing the Michigan statute in the 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.682 Filed 02/22/11 Page 20 of 29
14

factual circumstances that are alleged violated Plaintiffs’ constitutional rights.” Id. (Dkt. # 52 at 

15) (emphases added). 

Now that discovery is complete, the only remaining question is whether the “factual 

circumstances . . . alleged” are actually what happened. In fact, the record reveals that there is 

no genuine dispute that Plaintiffs’ material allegations are true. Thus, not only must qualified 

immunity be denied, Plaintiffs are entitled to a judgment of liability as a matter of law. 

A. Kahsin Violated the Lowdens’ Clearly Established First 

Amendment Rights By Enforcing the Funeral Protest Law Based 

on the Content of Their Speech. 

As with Plaintiffs’ facial challenge, their as-applied claims under the First Amendment 

have been briefed by both sides. For the sake of brevity, therefore, Plaintiffs hereby incorporate 

by reference the legal arguments set forth on pages 14-20 of their brief in opposition to 

Defendants’ motion for dismissal and judgment on the pleadings (Dkt. # 23). 

To summarize, it is clearly established that even facially valid “time, place, and manner” 

laws may not be enforced based on the content or viewpoint of a person’s speech. See Frisby v. 

Schultz, 487 U.S. 474, 488 (1988) (facially constitutional statutes are always open to as-applied 

challenges); Logsdon v. Hains, 492 F.3d 334, 346 (6th Cir. 2007) (qualified immunity denied 

where facially neutral law was enforced based on the content of speech). Thus, even if it was 

reasonable for Kahsin to presume that the funeral protest statute was constitutional on its face, it 

was clearly established that he could not enforce that statute on based on the content or 

viewpoint of the Lowdens’ signs.3

 This Court agreed, and—based on the facts alleged—denied 

 

3

 Regulation of speech based on content excludes certain subject matters, whereas 

viewpoint discrimination favors a particular position about a given subject. Boos v. Barry, 485 

U.S. 312, 319 (1988). In a public forum, content-based discrimination is presumptively 

unconstitutional, and viewpoint-based discrimination is always forbidden. Pleasant Grove City 

v. Summum, 129 S. Ct. 1125, 1132 (2009). 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.683 Filed 02/22/11 Page 21 of 29
15

Kahsin’s bid for qualified immunity on Plaintiffs’ as-applied First Amendment claims. Lowden 

I, 709 F. Supp. 2d at 565 (Dkt. # 52 at 41). 

As discovery has revealed, those facts are not in dispute. Kahsin was directing traffic 

along the route of the funeral procession when he was informed by another officer that there was 

a van in the funeral procession with anti-government protest signs in its windows. (Am. Compl. 

and Answer, Ex. A, ¶ 27; Kahsin Dep., Ex. E, at 8, 12; Bailey Dep., Ex. I, at 12-13.) Although 

Kahsin had no information to suggest that the Lowdens were engaged in any disruptive or 

improper conduct, he ordered the Lowdens to pull over to the side of the road. (Am. Compl. and 

Answer, Ex. A, ¶ 29; Lowden Dep., Ex. B, at 21-22; Kahsin Dep., Ex. E, at 12-16, 41; Hager 

Dep., Ex. J, at 35.) Kahsin’s decision to stop the Lowdens was based on the fact that their van 

had a lot of signs which appeared to have an anti-government bent. (Kahsin Dep., Ex. E, at 16.) 

After stopping the van, Kahsin questioned Lewis Lowden about the signs. (Am. Compl. 

and Answer, Ex. A, ¶ 31; Kahsin Dep., Ex. E, at 19.) Lewis replied that he and Jean were not 

protesting and were close to the Motley family, and that the signs were his First Amendment 

right to criticize the government. (Am. Compl. and Answer, Ex. A, ¶ 31; Kahsin Dep., Ex. E, at 

17, 19.) Kahsin nonetheless arrested the Lowdens for violating the funeral protest statute. (Am. 

Compl. and Answer, Ex. A, ¶ 32; Kahsin Dep., Ex. E, at 28.) Kahsin based his arrest of the 

Lowdens on the signs alone. (Kahsin Dep., Ex. E, at 40.) According to Kahsin, the signs were 

not appropriate for a funeral. (Kahsin Dep., Ex. E, at 45.) Although nearby spectators waved 

American flags and displayed their own signs thanking Corporal Motley for his service to the 

country, Kahsin did not consider those displays to be a violation of the funeral protest statute and 

would not have taken action against the Lowdens had their signs been supportive of Motley as 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.684 Filed 02/22/11 Page 22 of 29
16

opposed to unsupportive of the government. (Am. Compl. and Answer, Ex. A, ¶ 21; Kahsin 

Dep., Ex. E, at 35-40, 46-47; Procession Photographs, Ex. F.) 

This evidence demonstrates, beyond any genuine dispute, that Kahsin stopped and 

arrested the Lowdens based on the content and viewpoint of their speech in violation of their 

First Amendment rights. Furthermore, these rights were clearly established and no “facts exist 

that would be material to the analysis of qualified immunity.” Lowden I, 709 F. Supp. 2d at 565 

(Dkt. # 52 at 41). Plaintiffs are therefore entitled to summary judgment on their as-applied First 

Amendment claim. 

B. Kahsin Violated the Lowdens’ Clearly Established Fourth 

Amendment Rights Because There Was No Reasonable Suspicion 

or Probable Cause To Believe They Were Committing Any Crime. 

 Kahsin is liable for at least two separate violations of the Lowdens’ clearly established 

Fourth Amendment rights. First, he pulled the Lowdens out of the funeral procession without 

reasonable suspicion. Second, he arrested the Lowdens without probable cause.4

 Kahsin has 

already conceded that Plaintiffs’ complaint “stated a claim with respect to the allegations in 

support of their Fourth Amendment claim related to the absence of probable cause and that 

genuine issues of material fact exist for determination by this Court at a later date.” (Dkt. # 26 at

¶ 6.) However, no material facts have arisen during discovery that would change the Fourth 

Amendment analysis at the summary-judgment stage. Consequently, qualified immunity should 

be denied, and summary judgment should be entered on Plaintiffs’ Fourth Amendment claims. 

 

4

 Kahsin is also liable for his unlawful search and seizure of the Lowdens’ van as an 

incident to their unlawful arrest. See Pillow v. City of Lawrenceburg, 319 F. App’x 347, 351 

(6th Cir. 2008) (“The search-incident-to-arrest exception to the warrant requirement applies only 

when the police already have probable cause prior to the search” and “[o]nly where incident to a 

valid arrest . . . .” (emphasis added)). Kahsin acknowledges he had no justification for searching 

and seizing the van independent of having arrested its occupants for allegedly violating the 

funeral protest statute. (Kahsin Dep., Ex. E, at 27-28.) Therefore, because the arrest was 

unconstitutional, the resulting search and seizure of the van was unlawful as well. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.685 Filed 02/22/11 Page 23 of 29
17

1. Kahsin Stopped the Lowdens Without Reasonable Suspicion. 

A brief investigatory stop violates the Fourth Amendment unless it is “supported by 

reasonable suspicion to believe that criminal activity may be afoot,” “justified by some objective 

manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United 

States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted). In this case, 

Kahsin pulled the Lowdens’ van out of the procession for an investigatory stop. (Am. Compl. 

and Answer, Ex. A, ¶ 29; Kahsin Dep., Ex. E, at 12-13, 16.) When deposed, Kahsin gave two 

different explanations for why he did so, neither of which holds water. 

First, Kahsin claimed he stopped the Lowdens because he believed their van “to be 

disruptive and kind of suspicious in nature.” (Kahsin Dep., Ex. E, at 13.) However, Kahsin 

acknowledged that the Lowdens were not disruptive—they were not honking their horn, 

communicating with others along the procession route, or otherwise disturbing the peace; and 

there had been no complaints from the general public about the Lowdens’ conduct. (Kahsin 

Dep., Ex. E, at 40-41.) As for the van being “kind of suspicious in nature,” it is well established 

that an officer’s statement that someone “looked suspicious” does not satisfy the reasonable 

suspicion standard. See Brown v. Texas, 443 U.S. 47, 52 (1979); United States v. Keith, 559 F.3d 

499 (6th Cir. 2009). 

Second, Kahsin testified that he stopped the van because it had a lot of signs taped to the 

inside of its windows that appeared to have an anti-government bent. (Kahsin Dep., Ex. E, at 

16.) These facts, too, fail to justify even a brief investigatory stop; neither the funeral protest 

statute nor any other law prohibits driving peacefully in a funeral procession with signs that 

criticize the government. See City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994) (“Most Americans 

would be understandably dismayed . . . to learn that it was illegal to display from their window 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.686 Filed 02/22/11 Page 24 of 29
18

an 8- by 11-inch sign expressing their political views.”). In sum, Kahsin could “point to [no] 

specific, articulable facts that gave rise to a ‘reasonable suspicion’ that the [Lowdens were] 

engaged in criminal activity.” United States v. Gross, 624 F.3d 309, 315 (6th Cir. 2010). 

2. Kahsin Arrested the Lowdens Without Probable Cause.

A warrantless arrest violates the Fourth Amendment unless it is supported by probable 

cause to believe a crime “has been or is being committed,” a standard more demanding that 

reasonable suspicion and one that “depends upon the reasonable conclusion to be drawn from the 

facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 

152 (2002). Notably, the Sixth Circuit has repeatedly held that speech protected by the First 

Amendment cannot serve as probable cause for an arrest—even when the arresting officer claims 

to have identified a statute that he believes covers the speech in question. See Leonard v. 

Robinson, 477 F.3d 347, 361 (6th Cir. 2007); Swiecicki v. Delgado, 463 F.3d 489, 499 (6th Cir. 

2006); Sandul v. Larion, 119 F.3d 1250, 1256 (6th Cir. 1997). 

In this case, shortly after Kahsin made the decision to pull the Lowdens out of the funeral 

procession, he made the decision to arrest them. (Kahsin Dep., Ex. E, at 21-23.) Even assuming 

Kahsin’s decision to pull the Lowdens out of the funeral procession was supported by reasonable 

suspicion, he learned nothing during his brief subsequent investigation to establish the probable 

cause required for a full-fledged custodial arrest. (Kahsin Dep., Ex. E, at 16-23.) Kahsin’s only 

purported basis for arresting the Lowdens was that there were anti-government signs taped to the 

inside windows of their van, which he believed violated the funeral protest statute. (Kahsin 

Dep., Ex. E, at 16, 27-28, 36-40.) But the Lowdens’ anti-government signs were not prohibited 

by the funeral protest statute, as there was no evidence they were disrupting, disturbing, or 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.687 Filed 02/22/11 Page 25 of 29
19

adversely affecting the funeral procession. See M.C.L. § 750.167d(1)(c). They were therefore 

not probable cause for arrest. 

3. There Are No Genuine Disputes of Material Fact. 

Plaintiffs are entitled to summary judgment as to liability on their Fourth Amendment 

claims because the facts are undisputed. “When no material dispute of fact exists, probable 

cause determinations are legal determinations that should be made by a court.” Hale v. Kart, 396 

F.3d 721, 728 (6th Cir. 2005). Such claims go to the jury only when there are “disputed factual 

issues underlying probable cause,” id. (emphasis added), which is not the case here. 

It is possible that Kahsin will raise one fact that appears to be in dispute: whether the 

Lowdens’ funeral flag was on the top of their van, as Lewis maintains (Lowden Dep., Ex. B, at 

64-65), or inside the van and visible behind the windshield, as Kahsin states (Kahsin Dep., Ex. E, 

at 49-50). Although this dispute may be genuine, it is hardly material. First, although Kahsin 

testified that he did not see the funeral flag in the front windshield before he initiated the stop, he 

also testified that he would have pulled the van over in any event. (Kahsin Dep., Ex. E, at 49.) 

Therefore, he cannot claim that the investigatory stop was an innocent mistake that would not 

have occurred had Kahsin known prior to the stop that the Lowdens had a funeral flag. Second, 

after stopping the Lowdens, Kahsin did see that they had a funeral flag—but he arrested them 

anyway. Bizarrely, Kahsin claims that seeing the funeral flag made him more suspicious that the 

Lowdens were interlopers. (Kahsin Dep., Ex. E, at 50.) This explanation is senseless. Even if 

the funeral flag were in the Lowdens’ windshield and not on the top of the van, that would not 

justify their arrest. 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.688 Filed 02/22/11 Page 26 of 29
20

4. Qualified Immunity Should Be Denied. 

The Sixth Circuit routinely denies qualified immunity in cases of warrantless arrests 

without probable cause because it is clearly established that such arrests are unconstitutional. 

See Parsons v. City of Pontiac, 533 F.3d 492, 504 (6th Cir. 2008); Radvansky v. City of Olmsted 

Falls, 395 F.3d 291, 310 (6th Cir. 2005); Gardenhire v. Schubert, 205 F.3d 303, 313 (6th Cir. 

2000). Investigatory stops without reasonable suspicion are also unconstitutional under clearly 

established law. Feathers v. Aey, 319 F.3d 843, 850 (6th Cir. 2003). 

In this case, Kahsin’s actions were “objectively unreasonable” in light of both the facts 

known to him at the time of the arrest and the law clearly established at that time. See id. at 851. 

The Lowdens were exhibiting no conduct that could be reasonably construed as criminal. Their 

presence in the funeral procession was causing no disturbance or alarm, and Kahsin’s only basis 

for singling them out was their political speech. It would therefore be clear to a reasonable 

officer that stopping and arresting them, under the funeral protest statute or any other authority, 

was a violation of their rights against unreasonable searches and seizures. Plaintiffs are therefore 

entitled to partial summary judgment on their Fourth Amendment claims. 

C. Kahsin Violated the Lowdens’ Clearly Established Due Process 

Rights by Arresting Them for Violating a Statute That Was 

Unconstitutionally Vague As Applied to Them. 

Lastly, in arresting the Lowdens under the funeral protest statute, Kahsin violated their 

clearly established due process rights. This Court has already agreed with Plaintiffs that the facts 

alleged in their complaint support an as-applied vagueness claim: 

[E]ven if a statute is not impermissibly vague on its face, it is 

subject to a due process challenge when its application in a 

particular case “failed to give a person of ordinary intelligence fair 

notice that his contemplated conduct is forbidden,” quoting Palmer 

v. City of Euclid, 402 U.S. 544, 545 (1971) (per curiam). Here, an 

ordinary person would not understand how a law against 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.689 Filed 02/22/11 Page 27 of 29
21

“adversely affecting” a funeral prohibits close friends of the 

deceased from driving peacefully in a funeral procession simply 

because homemade political signs are taped to the inside windows 

of their car. Viewing the facts in the light most favorable to 

Plaintiffs, a reasonable officer could not have concluded that the 

statute gave the Lowdens fair notice that such conduct was 

forbidden. Leonard, 477 F.3d at 359. Notably, Deputies Kahsin 

and Woodcock have yet to advance any facts to undercut 

Plaintiffs’ version of the events. 

Lowden I, 709 F. Supp. 2d at 555 (Dkt. # 52 at 23-24).5

Now that discovery is complete, Kahsin has still not advanced any facts to undercut 

Plaintiffs’ version of the events. To the contrary, it is undisputed that Kahsin arrested the 

Lowdens, close friends of the deceased who were driving peacefully in the funeral procession, 

simply because homemade political signs were taped to the inside windows of their van. (Kahsin 

Dep., Ex. E, at 40-41.) According to Kahsin: “I did not believe they were appropriate.” (Kahsin 

Dep., Ex. E, at 45.) That, of course, is the essence of arbitrary and standardless enforcement. 

See Smith v. Goguen, 415 U.S. 566, 573-75 (1974). Plaintiffs are therefore entitled to partial 

summary judgment on their as-applied vagueness claim. 

III. THE COURT SHOULD ENTER A JUDGMENT DECLARING THE 

FUNERAL PROTEST LAW UNCONSTITUTIONAL. 

Following supplemental briefing (Dkt. ## 54-57), this Court ruled that it “will exercise 

discretion to entertain Plaintiffs’ request for declaratory relief.” Lowden II, 709 F. Supp. 2d at 

583 (Dkt. # 58 at 20). Plaintiffs’ motion for a declaratory judgment on the constitutionality of 

the funeral protest statute remains pending. (See Dkt. # 59.) Now that the issues have been fully 

briefed and the facial validity of the statute is squarely before the Court, Plaintiffs request that 

 

5

 Plaintiffs’ legal argument and authority in support of their vagueness-as-applied claim 

are set forth on pages 24-26 of their brief in opposition to Defendants’ motion for dismissal and 

judgment on the pleadings (Dkt. # 23). 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.690 Filed 02/22/11 Page 28 of 29
22

the Court exercise its discretion at this time to grant their pending motion and declare the statute 

unconstitutional. See 28 U.S.C. § 2201(a); Fed. R. Civ. P. 57. 

CONCLUSION 

For the reasons stated above, Plaintiffs request that the Court enter a judgment of liability 

against Defendants Clare County and Lawrence Kahsin and declare Michigan’s funeral protest 

statute unconstitutional. 

Respectfully submitted, 

Hugh M. Davis (P12555) 

Cynthia Heenan (P53664) 

Constitutional Litigation 

 Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

/s/ Daniel S. Korobkin 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824 

dkorobkin@aclumich.org

msteinberg@aclumich.org

Attorneys for Plaintiffs 

Dated: February 22, 2011 

Case 1:09-cv-11209-TLL-CEB ECF No. 81, PageID.691 Filed 02/22/11 Page 29 of 29