IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN and 

ROBERT LOWDEN, personal 

representative of the estate of JEAN 

LOWDEN, 

 Plaintiffs, 

 

vs. 

 

CLARE COUNTY, a municipal corporation, 

LAWRENCE KAHSIN, 

Clare County Sheriff's Deputy, in his 

individual capacity, and CALVIN 

WOODCOCK, Clare County Sheriff's 

Deputy, in his individual capacity, 

 Defendants. 

Case No. 1:09-cv-11209 

Hon. Thomas L. Ludington 

/ 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

Attorneys for Plaintiffs 

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) 

Attorneys for Plaintiffs 

Constitutional Litigation Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

Patrick A. Aseltyne (P23293) 

Jason D. Kolkema (P55936) 

Attorneys for Defendants 

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. 

303 S. Waverly Road 

Lansing, MI 48917 

(517) 886-3800 

paseltyne@jrlaf.com

jkolkema@jrlaf.com

/ 

PLAINTIFFS' RESPONSE IN OPPOSITION TO 

DEFENDANTS' MOTION FOR DISMISSAL AND JUDGMENT ON THE PLEADINGS 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 1 of 36
For the reasons stated in the accompanying brief, Plaintiffs oppose Defendants' motion 

for dismissal and judgment on the pleadings and request that said motion be denied. 

Respectfully submitted, 

/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

/s/ Hugh M. Davis with consent

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

Attorneys for Plaintiffs 

Dated: August 20, 2009 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 2 of 36
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

LEWIS LOWDEN and 

ROBERT LOWDEN, personal 

representative of the estate of JEAN 

LOWDEN, 

 Plaintiffs, 

 

vs. 

 

CLARE COUNTY, a municipal corporation, 

LAWRENCE KAHSIN, 

Clare County Sheriff's Deputy, in his 

individual capacity, and CALVIN 

WOODCOCK, Clare County Sheriff's 

Deputy, in his individual capacity, 

 Defendants. 

Case No. 1:09-cv-11209 

Hon. Thomas L. Ludington 

/ 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P48085) 

Kary L. Moss (P49759) 

Attorneys for Plaintiffs 

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) 

Attorneys for Plaintiffs 

Constitutional Litigation Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255 

conlitpc@sbcglobal.net

Patrick A. Aseltyne (P23293) 

Jason D. Kolkema (P55936) 

Attorneys for Defendants 

Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. 

303 S. Waverly Road 

Lansing, MI 48917 

(517) 886-3800 

paseltyne@jrlaf.com

jkolkema@jrlaf.com

/ 

PLAINTIFFS' BRIEF IN OPPOSITION TO 

DEFENDANTS' MOTION FOR DISMISSAL AND JUDGMENT ON THE PLEADINGS 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 3 of 36
i 

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii 

INTRODUCTION 1 

FACTS 2 

STANDARD OF REVIEW 4 

ARGUMENT 4 

I. DEFENDANTS' IMPROPERLY SUBMITTED EVIDENCE OUTSIDE 

THE PLEADINGS SHOULD BE EXCLUDED AND NOT CONSIDERED

BY THE COURT IN RULING ON THEIR MOTION. 6 

II. PLAINTIFFS' CLAIMS AGAINST CLARE COUNTY SHOULD NOT BE 

DISMISSED BECAUSE THE COMPLAINT ALLEGES FACTS WHICH

SUPPORT A PLAUSIBLE CLAIM THAT THE LOWDENS WERE 

ARRESTED PURSUANT TO A MUNICIPAL POLICY. 6 

A. Plaintiffs' Complaint Alleges Sufficient Facts To State a Plausible 

Claim That They Were Arrested Pursuant to Municipal Policy. 6 

B. Counties Are Liable Under 42 U.S.C. § 1983 Where, As Here, 

Enforcement of an Unconstitutional State Law Is Discretionary and 

They Choose To Enforce It. 9 

III. PLAINTIFFS' FACIAL CHALLENGES SHOULD NOT BE DISMISSED 

BECAUSE, ASSUMING THE FUNERAL PROTEST STATUTE IS 

FACIALLY UNCONSTITUTIONAL, IT IS UNLAWFUL FOR 

DEFENDANTS TO ENFORCE IT. 12 

IV. PLAINTIFFS' REMAINING CLAIMS SHOULD NOT BE DISMISSED 

UNDER THE QUALIFIED IMMUNITY DOCTRINE BECAUSE IT IS

CLEARLY ESTABLISHED THAT ARRESTING THE LOWDENS 

UNDER THE CIRCUMSTANCES ALLEGED IS UNLAWFUL. 14 

A. The Deputies Violated the Lowdens' Clearly Established First 

Amendment Rights by Enforcing M.C.L. § 750.167d Based on the 

Content of Their Speech. 14 

1. The Deputies' Conduct Violated the Lowdens' First Amendment 

Rights Against Content-Based and Viewpoint-Based 

Discrimination in a Public Forum. 15 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 4 of 36
ii 

2. The Deputies Are Not Entitled to Qualified Immunity Because the 

Lowdens' First Amendment Rights in This Situation Were Clearly 

Established. 19 

B. The Deputies Violated the Lowdens' Clearly Established Fourth 

Amendment Rights Because There Was No Reasonable Suspicion or 

Probable Cause To Believe They Were Committing Any Crime. 20 

1. The Lowdens' Fourth Amendment Rights Were Violated Because 

There Was No Reason To Believe They Were Committing Any 

Crime. 20 

2. The Deputies Are Not Entitled to Qualified Immunity Because the 

Lowdens' Fourth Amendment Rights in This Situation Were 

Clearly Established. 23 

C. The Deputies Violated the Lowdens' Clearly Established Due Process 

Rights by Arresting Them for Violating a Statute That Was 

Unconstitutionally Vague As Applied to Them. 24 

1. The Statute Is Unconstitutionally Vague As Applied Because No 

Person of Ordinary Intelligence Would Have Fair Notice That the 

Lowdens' Mere Presence in the Funeral Procession Would Be 

Reasonably Perceived As "Adversely Affecting" It. 24 

2. The Deputies Are Not Entitled to Qualified Immunity Because the 

Lowdens' Due Process Rights in This Situation Were Clearly 

Established. 25 

CONCLUSION 27 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 5 of 36
iii 

TABLE OF AUTHORITIES

Cases 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004) 13 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) 4, 7, 8, 9 

Ball v. Union Carbide Corp., 385 F.3d 713 (6th Cir. 2004) 5 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) 4, 8 

Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716 (7th Cir. 1998) 11 

Bockes v. Fields, 999 F.2d 788 (4th Cir. 1993) 11 

Boos v. Barry, 485 U.S. 312 (1988) 16, 18, 19, 20 

Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999) 9, 10 

Brown v. Louisiana, 383 U.S. 131 (1966) 17 

Cady v. Arenac County, __ F.3d __, 2009 WL 2253264 (6th Cir. July 30, 2009) 11

City of Ladue v. Gilleo, 512 U.S. 43 (1994) 14 

Cohen v. California, 403 U.S. 15 (1971) 18 

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) 11 

Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 

477 F.3d 807 (6th Cir. 2007) 17, 19, 20 

Devenpeck v. Alford, 543 U.S. 146 (2004) 21 

Doby v. DeCrescenzo, 171 F.3d 858 (3d Cir. 1999) 11 

Echols v. Parker, 909 F.2d 795 (5th Cir. 1990) 11 

Evers v. County of Custer, 745 F.2d 1196 (9th Cir. 1984) 11 

Frisby v. Schultz, 487 U.S. 474 (1988) 15 

Galloway v. Hadl, 548 F. Supp. 2d 1215 (D. Kan. 2008) 5 

Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000) 22, 23 

Garner v. Memphis Police Dep't, 8 F.3d 358 (6th Cir. 1993) 9, 12

Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975) 17, 18, 20 

Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009) 14, 19 

Grayned v. City of Rockford, 408 U.S. 104 (1972) 24, 25 

Greenberg v. Life Ins. Co. of Am., 177 F.3d 507 (2d Cir. 1999) 5 

Hague v. CIO, 307 U.S. 496 (1939) 15 

Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008) 11 

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) 25 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 6 of 36
iv 

Hope v. Pelzer, 536 U.S. 730 (2002) 19 

Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007) 19 

Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999) 5 

Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000) 5 

Jelovesek v. Bredesen, 545 F.3d 431 (6th Cir. 2008) 4 

Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) 5 

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577 (6th Cir. 2007) 4 

Kolender v. Lawson, 461 U.S. 352 (1983) 25 

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 

507 U.S. 163 (1993) 7

Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007) 12, 17, 26 

Lindsay v. Yates, 498 F.3d 434 (6th Cir. 2007) 4 

Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007) 14, 15, 19, 22 

Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494 (6th Cir. 2006) 5 

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

Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) 6, 8 

Newell v. Sauser, 79 F.3d 115 (9th Cir. 1996) 26 

Palmer v. City of Euclid, 402 U.S. 544 (1971) (per curiam) 24, 26 

Parsons v. City of Pontiac, 533 F.3d 492 (6th Cir. 2008) 23 

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) 6, 10 

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) 15 

Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008) 13 

Phelps-Roper v. Taft, 523 F. Supp. 2d 612 (N.D. Ohio 2007) 13 

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009) 17

Pusey v. City of Youngstown, 11 F.3d 652 (6th Cir. 1993) 11 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 15, 17 

Radvansky v. City of Olmstead Falls, 395 F.3d 291 (6th Cir. 2005) 23

Rose v. Saginaw County, 353 F. Supp. 2d 900 (E.D. Mich. 2005) 4, 11

Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007) 26 

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

Saucier v. Katz, 533 U.S. 194 (2001) 14, 19 

Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) 13 

Shqeirat v. U.S. Airways, Inc., 515 F. Supp. 2d 984 (D. Minn. 2007) 5 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 7 of 36
v 

Sinay v. Lamson & Sessions Co., 948 F.2d 1037 (6th Cir. 1991) 9 

Smith v. Goguen, 415 U.S. 566 (1974) 25 

Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001) 5 

Smith v. School Dist. No. 6, 241 Mich. 366 (1928) 10 

Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991) 10 

Sutton v. Cadillac Area Public Schools, 117 Mich. App. 38 (1982) 10 

Swiecicki v. Delgado, 463 F.3d 489 (6th Cir. 2006) 15, 20, 23, 24 

Tenney v. Brandhove, 341 U.S. 367 (1951) 13 

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005) 10

United States v. Arvizu, 534 U.S. 266 (2002) 21 

United States v. Salisbury, 983 F.2d 1369 (6th Cir. 1993) 24, 26 

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

Ward v. Rock Against Racism, 491 U.S. 781 (1989) 15 

Weiner v. Klais & Co., 108 F.3d 86 (2d Cir. 1997) 5

Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997) 12 

Wong v. City & County of Honolulu, 333 F. Supp. 2d 942 (D. Haw. 2004) 11 

Statutes 

28 U.S.C. § 2403 13 

42 U.S.C. § 1983 6, 9, 26 

M.C.L. § 750.167d passim 

M.C.L. § 764.15 10 

Court Rules 

Fed. R. Civ. P. 5.1 13 

Fed. R. Civ. P. 8 9 

Fed. R. Civ. P. 12 4, 5 

Fed. R. Civ. P. 15 9 

Fed. R. Civ. P. 24 13

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 8 of 36
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 for allegedly 

violating M.C.L. § 750.167d solely because the van they were driving happened to display signs 

critical of then-President Bush and other government officials and policies. 

Defendants in this action, Clare County and two sheriff's deputies, make no serious effort 

to defend the constitutionality of M.C.L. § 750.167d. Instead, they argue that this lawsuit should 

be dismissed because the Lowdens were not arrested pursuant to any county "policy" and 

because the deputies who arrested them are entitled to qualified immunity. 

 

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 Document 23 Filed 08/20/2009 Page 9 of 36
2 

Defendants' motion should be denied. Clare County is liable for its policy decision to 

enforce M.C.L. § 750.167d. And the deputies, in arresting the Lowdens, violated clearly 

established law under the First, Fourth, and Fourteenth Amendments. 

FACTS

On September 26, 2007, Lewis and Jean Lowden traveled to Clare County to attend the 

funeral of Corporal Todd Motley, a close family friend who was killed in action in Iraq while 

serving in the United States Army. The Lowdens had known Corporal Motley and his family for 

many years. Jean homeschooled Todd in high school, and Lewis took him on fishing and 

camping trips in the summer. Lewis and Jean were devastated by his death. (Compl. ¶¶ 13-14.) 

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

Motley's funeral service, including a funeral procession through the town of Harrison, Michigan, 

which is located in Clare County. The funeral procession through downtown Harrison was a 

widely publicized and heavily attended event. Hundreds of onlookers lined the streets to pay 

their respects to Corporal Motley. Many waved American flags and displayed signs thanking 

Corporal Motley for his service to our country. (Id. ¶¶ 15-16.) 

The Lowdens drove to the funeral in their Dodge Ram van. For several years, Lewis had 

taped homemade signs to the inside windows of his van. The signs, similar to bumper stickers, 

contained statements visible to observers outside the van. The statements on the signs were 

political in nature; most were critical of then-President Bush and government policies. The 

Lowdens had driven the van with these signs for years without incident. They were still on 

display when the Lowdens arrived for Corporal Motley's funeral. The signs did not contain any 

statements critical of the military or Corporal Motley. (Id. ¶¶ 17-19.) 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 10 of 36
3 

Upon arrival, the Lowdens were asked if they intended to drive in the funeral procession 

from the church to the burial site. They Lowdens said yes, and they were directed to a parking 

lot for all the procession vehicles. A funeral flag was placed on top of the Lowdens' van. No 

one made any comment to the Lowdens about the signs on their van. (Id. ¶ 20.) 

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

approximately two miles. Defendant Lawrence Kahsin, a Clare County Sheriff's Deputy 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 anti-government protest 

signs in its windows. Although he had no information to suggest that the 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. Defendant Calvin Woodcock, another Clare County 

Sheriff's Deputy, arrived on the scene to assist. (Id. ¶¶ 21-25.) 

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

windows. Lewis replied that it was his First Amendment right to criticize the government. 

Deputy Kahsin then asked both Jean and Lewis if they were protesting. 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. Nonetheless, Deputy Kahsin and Deputy Woodcock placed Lewis 

and Jean under arrest for violating M.C.L. § 750.167d. The police impounded their van, and the 

Lowdens were detained in jail for approximately twenty-four hours before being released on 

personal recognizance. The criminal charges against them were eventually dismissed without 

prejudice. (Id. ¶¶ 26-29.) This suit followed. 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 11 of 36
4 

STANDARD OF REVIEW

In ruling on a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal 

Rules of Civil Procedure,2 the court must consider all factual allegations in the complaint as true 

and grant the motion only if the moving party is nonetheless entitled to judgment as a matter of 

law. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). To survive the 

motion, "the complaint must contain sufficient factual matter, accepted as true, to 'state a claim 

to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The motion must be denied if the 

complaint, construed in the light most favorable to the plaintiff, entitles him to relief under any 

legal theory. Jelovesek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008); Rose v. Saginaw County, 

353 F. Supp. 2d 900, 915 (E.D. Mich. 2005). 

ARGUMENT

I. DEFENDANTS' IMPROPERLY SUBMITTED EVIDENCE OUTSIDE 

THE PLEADINGS SHOULD BE EXCLUDED AND NOT CONSIDERED

BY THE COURT IN RULING ON THEIR MOTION. 

Before responding to the merits of Defendants' motion, Plaintiffs object to Defendants' 

submission of police photographs and a police incident report as exhibits to their brief. These 

are matters "outside the pleadings." Fed. R. Civ. P. 12(d). A motion for judgment on the 

pleadings tests the legal sufficiency of a complaint; it is not a vehicle for submitting evidence. In

deciding a motion under Rule 12, the district court must exclude all matters outside the 

 

2

 Defendants have filed a motion "for dismissal and judgment on the pleadings, pursuant 

to Fed.R.Civ.P. 12(b)(6) and 12(c)." (Defendants' Mot. at 1.) Inasmuch as it rests on Rule 

12(b)(6), their motion is untimely because it was not "brought prior to answering the complaint." 

Lindsay v. Yates, 498 F.3d 434, 437 n.4 (6th Cir. 2007). Defendants' motion should thus be 

treated only as a Rule 12(c) motion, although "the legal standards for adjudicating Rule 12(b)(6) 

and Rule 12(c) motions are the same." Id. n.5. 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 12 of 36
5 

pleadings. Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006). 

Defendants' exhibits should therefore be excluded.3

Defendants' argument that these exhibits should be allowed because they fall within 

"exceptions to the general rule covering matters outside the pleadings" (Defs.' Br. at 6) has no 

support in the law. Police reports, when submitted in support of a Rule 12 motion, are uniformly 

excluded as matters outside the pleadings. See, e.g., Smith v. Plati, 258 F.3d 1167, 1176 (10th 

Cir. 2001); Jacobs v. City of Chicago, 215 F.3d 758, 765-66 (7th Cir. 2000) (also excluding 

police photographs); Galloway v. Hadl, 548 F. Supp. 2d 1215, 1218 n.2 (D. Kan. 2008); Shqeirat 

v. U.S. Airways, Inc., 515 F. Supp. 2d 984, 992 (D. Minn. 2007). There is no reason to treat the 

police reports and photographs in this case any differently. 

Typically, a defendant's exhibits are permitted under Rule 12(d) only when their very 

existence is "central to the plaintiff's claim." Jackson v. City of Columbus, 194 F.3d 737, 745 

(6th Cir. 1999). Examples of such documents are the contract underlying a breach-of-contract 

claim, a fund prospectus in a securities fraud claim, an insurance policy in a dispute between 

insurer and insured, and a pension plan document in an ERISA case. See Greenberg v. Life Ins. 

Co. of Am., 177 F.3d 507, 514 (2d Cir. 1999); Weiner v. Klais & Co., 108 F.3d 86, 89 (2d Cir. 

1997); Shqeirat, 515 F. Supp. 2d at 992. Unlike those examples, the police report in a civil 

rights case "does not itself form the basis for the allegations" and therefore cannot be deemed 

part of the complaint. Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008). 

 

3

 If the court does not exclude matters outside the pleadings, it must convert Defendants' 

motion to one for summary judgment. Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 

494, 503 (6th Cir. 2006); see Fed. R. Civ. P. 12(d). Conversion would not be appropriate at this 

juncture, however, because this case is in its early stages and Plaintiffs have not had an adequate 

opportunity for discovery. See Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004). 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 13 of 36
6 

Because Defendants' police report and photographs must be excluded as matters outside 

the pleadings, the court should also exclude from consideration the "facts" Defendants 

improperly assert in their brief based on their exhibits. (See Defs.' Br. at 2-3, 17.) The only facts 

the court should consider are those alleged by Plaintiffs. 

II. PLAINTIFFS' CLAIMS AGAINST CLARE COUNTY SHOULD NOT BE 

DISMISSED BECAUSE THE COMPLAINT ALLEGES FACTS WHICH

SUPPORT A PLAUSIBLE CLAIM THAT THE LOWDENS WERE 

ARRESTED PURSUANT TO A MUNICIPAL POLICY. 

Defendants do not actually defend the constitutionality of M.C.L. § 750.167d. Instead, 

they contend that Plaintiffs' claim of municipal liability against Clare County fails for two 

reasons. First, they argue that Plaintiffs' complaint contains no factual allegations of an official 

policy as required by Monell v. Department of Social Services, 436 U.S. 658 (1978). Second, 

they argue, as a matter of law, that local enforcement of an unconstitutional state law can never 

subject a municipality to liability under 42 U.S.C. § 1983. Both these arguments are wrong. 

A. Plaintiffs' Complaint Alleges Sufficient Facts To State a Plausible 

Claim That They Were Arrested Pursuant to Municipal Policy.

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. Municipal 

policy need not be a written ordinance; it may be a "statement" or "decision" by a high-ranking 

official, such as a county sheriff or city police chief, "whose edicts or acts may fairly be said to 

represent official policy." Id. at 690, 694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 

482 (1986) (municipal liability may be imposed for a single decision by an official who 

"possesses final authority to establish municipal policy with respect to the action ordered"); 

Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1994) (same). The question in this 

case, therefore, is whether individual officers were acting entirely on their own in arresting the 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 14 of 36
7 

Lowdens for allegedly protesting Corporal Motley's funeral in violation of M.C.L. § 750.167d, 

or whether they were acting instead pursuant to a municipal policy to make arrests of that nature. 

Defendants argue that Plaintiffs failed to allege facts to support a facially plausible claim 

that their arrest was the result of any municipal policy under the Monell theory of liability. But it 

is misleading and inaccurate for Defendants to assert that Plaintiffs' claim of municipal liability 

is wholly contained within paragraphs 44 through 46 of the complaint and then argue, based on 

this assertion, that Plaintiffs "have provided nothing more than a 'formulaic recitation of the 

elements of a cause of action.'" (Defs.' Br. at 7.) The three paragraphs cited by Defendants 

contain the "legal conclusions" that "provide the framework of a complaint." Ashcroft v. Iqbal, 

129 S. Ct. 1937, 1950 (2009). Defendants have omitted from consideration the entire "Facts" 

section of Plaintiffs' complaint, which contain the "factual allegations" in support of those legal 

conclusions. Id. Factual allegations are pleaded in paragraphs 13 through 29 of the complaint 

and "plausibly give rise to an entitlement to relief." Id. 

As pleaded in the complaint, the funeral procession was a widely publicized and heavily 

attended event with hundreds of onlookers lining the streets. (Compl. ¶ 16.) Clare County 

officers were actively involved, directing funeral traffic along the procession route from the 

church to the burial site several miles away. (Id. ¶ 22.) A fellow officer notified Deputy Kahsin 

that there was a van in the procession with anti-government protest signs in its windows. (Id.) 

Deputy Kahsin stopped the van, questioned its occupants, and along with Deputy Woodcock 

arrested them for violating M.C.L. § 750.167d. (Id. ¶¶ 24-27.) 

Under the pleading standards of Rule 8(a)(2), the basis for a municipal liability claim 

need not be pleaded with factual detail or particularity. Leatherman v. Tarrant County Narcotics 

Intelligence & Coordination Unit, 507 U.S. 163 (1993). A complaint must merely plead "factual 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 15 of 36
8 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged." Iqbal, 129 S. Ct. at 1949 (emphasis added). "Determining whether a 

complaint states a plausible claim for relief will . . . be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense." Id. at 1950. 

Based on the factual matter contained in Plaintiffs' complaint, the following reasonable 

inferences -- informed by judicial experience and common sense -- are warranted. First, because 

Corporal Motley's funeral procession was a planned, highly publicized event on the streets of a 

small town,4

 it did not escape the notice and attention of persons whose edicts or acts may fairly 

be said to represent official policy. Second, in light of highly publicized protests at the military 

funerals of other American soldiers who had died in Iraq and the Michigan Legislature's 

enactment of a statute designed to prevent such protests (see Defs.' Br. at 12), policymakers 

determined that anyone who protested the funeral and procession of Corporal Motley should be 

stopped and arrested. Third, that decision, followed by instructions implementing it, was the 

"moving force" behind the Lowdens' arrest on September 26, 2007. Monell, 436 U.S. at 694. 

These reasonable inferences, which arise from the facts alleged, easily meet the 

"plausibility" standard under Iqbal. In that case, the complaint was dismissed because even 

though its factual allegations were "consistent with" a theory of liability, there were also "more 

likely explanations" that rendered the complaint's legal conclusions implausible. Iqbal, 129 S. 

Ct. at 1951; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007). In this case, by 

contrast, it is virtually inconceivable that sheriff's deputies directing traffic in Clare County 

would just happen to be aware of M.C.L. § 750.167d, and be prepared to make an arrest based on 

an alleged violation of that statute, unless county officials had instructed them to be on the 

 

4

 The United States Census Bureau estimates that Harrison had a 2008 population of 

1,993. See Population Finder at http://www.census.gov/. 

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9 

lookout for such violations and to make such arrests. For that reason, Defendants' argument that 

Plaintiffs failed to plead the existence of a municipal policy should be rejected.5

B. Counties Are Liable Under 42 U.S.C. § 1983 Where, As Here, 

Enforcement of an Unconstitutional State Law Is Discretionary and 

They Choose To Enforce It.

Defendants contend that Clare County cannot be liable for enforcing an unconstitutional 

state statute, but their position is undermined by two binding precedents of the Sixth Circuit. In 

Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993), the court rejected the city's 

argument that it could not be held liable for implementing an unconstitutional state statute 

authorizing the use of deadly force on nondangerous fleeing felons. Id. at 364. Although the 

statute authorized the use of deadly force in such situations, it did not require it, and it did not 

prevent the city from instituting a more restrictive deadly force policy. The city, having made a 

"deliberate choice" to authorize deadly force, was therefore liable under Monell. Id.

Similarly, in Brotherton v. Cleveland, 173 F.3d 552 (6th Cir. 1999), the Sixth Circuit held 

that a county coroner sued in his official capacity6

 could not escape Monell liability for removing 

the corneas of the plaintiff's dead husband over her objections despite the existence of a state 

statute that purportedly authorized him to do so. Id. at 562-67. As in Garner, the statute 

condoned, but did not require, the removal of corneas under such circumstances. The coroner, in 

his policymaking capacity, "voluntarily implemented a policy of corneal harvesting," even 

though he "could have chosen not to use his authority under the state statute" and "could have 

 

5

 In the event the court concludes that Plaintiffs' complaint requires more detailed factual 

allegations to meet the pleading requirements of Rule 8, Plaintiffs would request leave, pursuant 

to Rule 15(a)(2), to amend their complaint. See Iqbal, 129 S. Ct. at 1954; Sinay v. Lamson & 

Sessions Co., 948 F.2d 1037, 1041 (6th Cir. 1991). 

6

 A suit against an individual in his official capacity is equivalent to a suit against the 

entity of which he is an agent. Brotherton, 173 F.3d at 562. 

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10 

opted to act differently, or not to act." Id. at 566. He was therefore potentially liable in his 

official capacity pursuant to Monell. 

Garner and Brotherton compel a similar result here. A violation of the funeral protest 

statute is a felony, and under Michigan state law "a peace officer, without a warrant, may arrest a 

person" who commits a felony "in the peace officer's presence." M.C.L. § 764.15 (emphasis 

added). The term "may" is discretionary, unlike "shall," which is mandatory. Sutton v. Cadillac 

Area Public Schools, 117 Mich. App. 38, 42 (1982) (citing Smith v. School Dist. No. 6, 241 

Mich. 366 (1928)). In other words, no law enforcement officer or agency is required to arrest a 

person who violates M.C.L. § 750.167d. See also Town of Castle Rock, Colo. v. Gonzales, 545 

U.S. 748, 760 (2005) (noting the "well established tradition of police discretion" in enforcing 

state law). Accordingly, Clare County "could have chosen not to use [its] authority under the 

state statute," Brotherton, 173 F.3d at 566, but instead made a policy decision, "a deliberate 

choice to follow a course of action . . . made from among various alternatives," Pembaur, 475 

U.S. at 483, which led directly to the unconstitutional arrests of Lewis and Jean Lowden. 

Defendants rely primarily on a decision of the Seventh Circuit, Surplus Store & 

Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), which rejected a plaintiff's claim 

for Monell liability based on a police officer's acts pursuant to an allegedly unconstitutional state 

statute. That case did not even involve a policy decision made by a municipality or high-ranking 

official. In any event, subsequent Seventh Circuit case law has embraced the Sixth Circuit's 

distinction "between the state's command (which insulates the local government from liability) 

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11 

and the state's authorization (which does not)." Bethesda Lutheran Homes & Servs., Inc. v. 

Leean, 154 F.3d 716, 718 (7th Cir. 1998). That distinction is critical in this case.7

Defendants also cite Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993), for 

the proposition that "a city official pursues her duties as a state agent when enforcing state law or 

policy." In Pusey, however, the plaintiff did not even allege that a municipal policy existed. Id. 

at 659. Pusey is therefore not dispositive of Monell liability when there is an alleged municipal 

policy reflecting a deliberate decision to enforce a state law. In fact, a recent Sixth Circuit 

decision confirms that Pusey applies only to an individual act by a county prosecutor enforcing 

state law, whereas Brotherton and Garner govern cases involving municipal policy choices that 

result in a law enforcement act. Cady v. Arenac County, __ F.3d __, 2009 WL 2253264, at *7 

(6th Cir. July 30, 2009). Here, Plaintiffs do not allege that the individual officers' act in arresting 

the Lowdens is itself sufficient to support municipal liability. Instead, that act was the result of a 

policy choice made by Clare County to enforce M.C.L. § 750.167d. Clare County is liable for 

that policy even if it happens to be consistent with an unconstitutional state law.8

 

7

 Most other circuits to have considered the issue agree with the Sixth Circuit and would 

hold a municipality liable for its deliberate decision to enforce an unconstitutional state law. See 

Vives v. City of New York, 524 F.3d 346, 353 (2d Cir. 2008); Cooper v. Dillon, 403 F.3d 1208, 

1223 (11th Cir. 2005); Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir. 1984). 

Furthermore, the cases cited by Defendants in footnote 9 of their brief do not support their 

position. Bockes v. Fields, 999 F.2d 788 (4th Cir. 1993), involves local implementation of a 

mandatory state policy. In Doby v. DeCrescenzo, 171 F.3d 858 (3d Cir. 1999), the court 

discussed the issue but ultimately declined to decide it. The court in Wong v. City & County of 

Honolulu, 333 F. Supp. 2d 942 (D. Haw. 2004), distinguishes between a general policy to 

enforce all state laws and a deliberate choice to enforce a specific statute. And Echols v. Parker, 

909 F.2d 795 (5th Cir. 1990), is a case about attorney's fees, not municipal liability. 

8

 Defendants are incorrect to reason that Clare County is not liable under the Fourth 

Amendment because "the legality of an arrest necessarily depends upon the facts and 

circumstances presented in each case." (Defs.' Br. at 10.) Municipal liability will lie so long as 

(1) Plaintiffs were stopped and arrested in violation of the Fourth Amendment and (2) municipal 

policy was the moving force behind those arrests. See, e.g., Harper v. City of Los Angeles, 533 

F.3d 1010, 1027 (9th Cir. 2008); Rose v. Saginaw County, 353 F. Supp. 2d 900, 916, 922-23 

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12 

III. PLAINTIFFS' FACIAL CHALLENGES SHOULD NOT BE DISMISSED 

BECAUSE, ASSUMING THE FUNERAL PROTEST STATUTE IS 

FACIALLY UNCONSTITUTIONAL, IT IS UNLAWFUL FOR 

DEFENDANTS TO ENFORCE IT. 

Defendants' second argument in support of their motion is that Plaintiffs' facial 

challenges to M.C.L. § 750.167d must be dismissed.9

 Again, Defendants do not defend the 

facial constitutionality of the statute. Dismissal is required, they say, because a facial challenge 

attacks the language of a statute, and the defendants in this case did not actually write M.C.L. § 

750.167d. They have no "particular interest" in the statute, and thus will "leave it to the 

Michigan Attorney General's Office" to defend its facial constitutionality. (Defs.' Br. at 13.) 

Defendants offer no legal authority to support this argument, and there is none. 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). Because Defendants Kahsin and Woodcock, acting under 

color of law, arrested the Lowdens for allegedly violating the challenged statute, they are 

potentially liable for their actions. See Leonard v. Robinson, 477 F.3d 347, 356 (6th Cir. 2007) 

(denying qualified immunity to officer who arrested plaintiff for allegedly violating facially 

invalid state laws). And as previously discussed, Clare County is liable for unlawful arrests 

caused by its policy of enforcing the statute. See Garner, supra. 

Defendants' arguments to the contrary do not hold water. First, it is irrelevant that 

Defendants did not actually draft the statute Plaintiffs challenge. If that were the test for a facial 

 

(E.D. Mich. 2005). Because Plaintiffs have stated a claim that they were stopped and arrested in 

violation of the Fourth Amendment as a result of Clare County municipal policy, Defendants' 

motion should be denied as to Plaintiffs' Fourth Amendment municipal liability claim. 

9

 Defendants mistakenly state that Plaintiffs' facial challenges "have been asserted against 

the individual Defendants alone." (Defs.' Br. at 11 (emphasis added).) Plaintiffs assert a claim 

that M.C.L. § 750.167d is unconstitutional on its face. This claim runs against Clare County 

inasmuch as enforcement of the statute was municipal policy. 

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13 

challenge to a statute, then there would be no facial challenges because legislators are absolutely 

immune from civil liability for their legislative acts. Tenney v. Brandhove, 341 U.S. 367 (1951). 

Second, Defendants' professed lack of any "particular interest in the contested statute" 

does not entitle them to judgment on the pleadings. Plaintiffs, of course, do have a "particular 

interest" in a facially unconstitutional statute not being enforced against them by Defendants. 

Third, although Defendants may prefer that the Attorney General defend the statute, the 

Attorney General is not a party to this case. The State of Michigan may intervene as of right. 

28 U.S.C. § 2403(b); Fed. RR. Civ. P. 5.1(c), 24(a)(1). Whether the Attorney General actually 

becomes a party to this litigation, however, has no bearing on whether Defendants are entitled to 

judgment on the pleadings with regard to Plaintiffs' facial challenges to M.C.L. § 750.167d. 

Because Defendants' brief does not actually argue that M.C.L. § 750.167d is facially 

constitutional, Plaintiffs join Defendants in reserving argument on their facial challenges for a 

later stage of this case. (See Defs.' Br. at 13 n.6.) For now it should be sufficient to note that 

Defendants are not entitled to judgment on the pleadings with regard to the facial challenges 

simply because they do not wish to litigate that issue.10

 

10 It is unclear why Defendants disclaim "arguments related to the facial constitutionality" 

of the statute but then proceed to cite Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008), 

for the proposition that the Sixth Circuit upheld the constitutionality of a "similar" statute. 

(Defs.' Br. at 13.) Whatever their rationale, the Ohio statute upheld in Phelps-Roper is different 

from M.C.L. § 750.167d in at least three very important respects. First, the Ohio statute does not 

make it illegal to "adversely affect" a funeral -- the very provision of the Michigan statute the 

Lowdens were arrested for allegedly violating, and the very language Plaintiffs now challenge as 

facially vague and overbroad. Second, the Sixth Circuit upheld the Ohio statute's 300-foot buffer 

zone, whereas the buffer zone under the Michigan statute is 500 feet -- a buffer-zone area the 

Sixth Circuit has previously held is unconstitutionally overbroad. See Anderson v. Spear, 356 

F.3d 651, 657-63 (6th Cir. 2004). Third, although the Sixth Circuit upheld the Ohio statute's 

stationary buffer zone, it specifically did not rule on the provision of the Ohio statute governing 

moving funeral processions. In fact, that provision had been declared facially unconstitutional 

by a federal district court months before the Lowdens were arrested. See Phelps-Roper v. Taft, 

523 F. Supp. 2d 612, 620 (N.D. Ohio Mar. 23, 2007). Cf. Schenck v. Pro-Choice Network, 519 

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14 

IV. PLAINTIFFS' REMAINING CLAIMS SHOULD NOT BE DISMISSED 

UNDER THE QUALIFIED IMMUNITY DOCTRINE BECAUSE IT IS

CLEARLY ESTABLISHED THAT ARRESTING THE LOWDENS 

UNDER THE CIRCUMSTANCES ALLEGED IS UNLAWFUL. 

In examining Defendants' qualified immunity defense, the court must "construe the 

plaintiff's complaint liberally, in plaintiff's favor, accepting all factual allegations as true and 

drawing all reasonable inferences in favor of the plaintiff." Logsdon v. Hains, 492 F.3d 334, 340 

(6th Cir. 2007). If "'it would be clear to a reasonable officer that his conduct was unlawful in the 

situation he confronted,'" then qualified immunity must be denied. Grawey v. Drury, 567 F.3d 

302, 314 (6th Cir. 2009) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). In this case, the 

law was clearly established at the time of the Lowdens' arrest that the deputies' actions as alleged 

in the complaint were unlawful under the First, Fourth, and Fourteenth Amendments. Qualified 

immunity is therefore not warranted at this stage, and the court should deny Defendants' motion. 

A. The Deputies Violated the Lowdens' Clearly Established First 

Amendment Rights by Enforcing M.C.L. § 750.167d Based on the 

Content of Their Speech.

At the heart of this lawsuit is Plaintiffs' claim that the Lowdens were stopped and arrested 

for exercising their First Amendment right to publicize their political beliefs. "Most Americans 

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

an 8- by 11-inch sign expressing their political views." City of Ladue v. Gilleo, 512 U.S. 43, 58 

(1994). Although Deputies Kahsin and Woodcock argue that they stopped and arrested the 

Lowdens in a good-faith effort to enforce a state statute making it unlawful to "adversely affect" 

a funeral (see Defs.' Br. at 17), their enforcement of that statute based on the content of the 

Lowdens' speech was unconstitutional under clearly established First Amendment law. 

 

U.S. 357 (1997) (upholding 15-foot "fixed buffer zones" around abortion clinics but striking 

down 15-foot "floating buffer zones" around persons seeking access to the clinics). 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 22 of 36
15 

1. The Deputies' Conduct Violated the Lowdens' First 

Amendment Rights Against Content-Based and ViewpointBased Discrimination in a Public Forum. 

The Supreme Court has developed the "public forum" doctrine to scrutinize government 

restrictions on free speech. "In places which by long tradition or by government fiat have been 

devoted to assembly and debate, the rights of the state to limit expressive activity are sharply 

circumscribed." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). 

Such places include public streets, which "have immemorially been held in trust for the use of 

the public, and, time out of mind, have been used for purposes of assembly, communicating 

thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 

(1939). In a public forum, the government may impose reasonable regulations on the "time, 

place, and manner" of expression, "but only if they are justified without reference to the content 

of the regulated speech." R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (internal quotation 

marks omitted).11 "Content-based regulations are presumptively invalid." Id. at 382. 

Assuming for the sake of argument that M.C.L. § 750.167d is on its face a reasonable 

"time, place, and matter" regulation,12 a content-based application of that statute in a public 

forum is plainly impermissible. Facially constitutional statutes are always open to as-applied 

challenges. See Frisby v. Schultz, 487 U.S. 474, 488 (1988). And the Sixth Circuit has held that 

individual law enforcement officers violate the First Amendment when they enforce a facially 

neutral statute based on the content of a person's speech. See Logsdon v. Hains, 492 F.3d 334, 

346 (6th Cir. 2007); Swiecicki v. Delgado, 463 F.3d 489, 501 (6th Cir. 2006). In other words, 

 

11 "Time, place, and manner" restrictions also must be narrowly tailored to serve a 

significant governmental interest and leave open ample alternative channels for communication. 

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). 

12 As noted supra, Plaintiffs intend to challenge the facial validity of M.C.L. § 750.167d 

at a later stage of this case. 

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16 

even if the Michigan statute's ban on conduct adversely affecting a funeral is facially contentneutral, police may not, consistent with the First Amendment, determine that a particular person 

driving down the street is violating the statute because of the subject-matter or viewpoint of that 

person's speech. That is exactly what happened in this case. 

The Lowdens, like everyone else in the funeral procession, were driving slowly and 

peacefully from the church to the burial site. (Compl. ¶ 21.) No one complained about the 

Lowdens' van, and it caused no noticeable disturbance or disruption of the funeral procession. 

(Id. ¶¶ 20, 23.) The funeral flag on the van indicated that they were invited guests. (Id. ¶ 20.) 

Many people along the procession route waved American flags and displayed their own signs 

thanking Corporal Motley for his service to this country. (Id. ¶ 16.) It was only when police 

learned that the Lowdens' van displayed anti-government protest signs that the Lowdens were 

stopped. (Id. ¶¶ 22, 24.) Deputy Kahsin, despite having no information that the Lowdens were 

causing any trouble, immediately interrogated them about the signs in their van. (Id. ¶¶ 23, 26.) 

Despite the Lowdens' insistence that they had been invited to the funeral and were not there to 

protest, Kahsin and Woodcock placed them under arrest. (Id. ¶¶ 27-28.) 

From these facts it is reasonable to conclude that Defendants' actual enforcement of 

M.C.L. § 750.167d was neither content- nor viewpoint-neutral.13 Regarding content, it is 

obvious that during Corporal Motley's funeral procession the public display of messages 

covering certain topics was allowed, whereas others were forbidden. Signs with messages about 

Corporal Motley were permitted; political commentary was not. 

 

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

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

485 U.S. 312, 319 (1988). 

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17 

As for viewpoint, the Lowdens were targeted because the messages on their signs 

contained anti-government views. In a public forum, viewpoint-based regulation of speech is 

always forbidden. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009); see also

R.A.V., 505 U.S. at 384 ("the government may proscribe libel" but may not proscribe "only libel 

critical of the government"). On the facts alleged, the Lowdens were stopped because the 

messages on their signs were anti-government.14

Defendants offer three related explanations for these events in an attempt to justify the 

deputies' conduct. First, they argue that they were "entitle [sic] to consider the possibility of an 

adverse reaction by others" to the messages on the Lowdens' signs. (Defs.' Br. at 18.) Second, 

they argue that the Lowdens' signs were not protected by the First Amendment because they 

were "fighting words." (Id.) Third, they argue that it was permissible for the deputies to 

consider the content of the Lowdens' speech in order to determine whether it would "adversely 

affect" the funeral. (Id. at 21.) These arguments are meritless. 

First Amendment law soundly rejects the "heckler's veto." One's peaceful expression of a 

political opinion cannot be suppressed merely because others, "unprovoked except by the fact of 

the constitutionally protected demonstration itself, . . . might react with disorder or violence." 

Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966). In Glasson v. City of Louisville, 518 F.2d 

899 (6th Cir. 1975), the Sixth Circuit held that police officers could not confiscate and destroy a 

peaceful demonstrator's sign criticizing the President simply because it "unintentionally evoked a 

 

14 The complaint also supports a claim of First Amendment retaliation: "Plaintiffs' 

allegations, if proven at trial, could be taken by a reasonable jury to support their claim that 

Defendants were motivated to detain them in part because of their constitutionally protected 

speech." Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821-23 (6th Cir. 

2007); see also Leonard v. Robinson, 477 F.3d 347, 361-62 (6th Cir. 2007). Because Plaintiffs' 

complaint so clearly supports a claim of content- and viewpoint-based discrimination, it is 

unnecessary to dwell at length on a separate retaliation claim. 

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18 

hostile reaction from others." Id. at 905. In this case, too, the deputies were not permitted to 

stop and arrest the Lowdens merely because their signs might hypothetically cause an "adverse 

reaction by others" later during the procession. 

There is also no way to construe the Lowdens' conduct as "fighting words." Fighting 

words are "those personally abusive epithets which, when addressed to the ordinary citizen, are, 

as a matter of common knowledge, inherently likely to provoke a violent reaction." Cohen v. 

California, 403 U.S. 15, 20 (1971). Only a "personal insult" "directed to the person of the 

hearer" can be construed as fighting words. Id. (internal quotation marks omitted). And the 

speech must be "an invitation to exchange fisticuffs" likely to "incite an immediate breach of the 

peace." Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (internal quotation marks 

omitted). The messages on the Lowdens' van were political statements, not personal insults 

directed at anyone present at Corporal Motley's funeral. Signs pasted to the inside of a van's 

windows containing messages generally critical of the government are not inherently likely to 

provoke an immediate violent reaction. Certainly no reasonable observer of the Lowdens, 

driving in the funeral procession with a funeral flag on display, would view their conduct as an 

invitation to exchange fisticuffs. The fighting words doctrine does not apply. 

Lastly, insofar as Defendants argue that the deputies properly considered the content of 

the Lowdens' speech because they were motivated by a content-neutral desire to prevent the 

funeral from being "adversely affected" by it, the Supreme Court has rejected that argument as 

well. In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down an ordinance banning 

displays within 500 feet of an embassy that bring a foreign government into disrepute. In 

defending the ordinance, the government argued that the ban was not content-based because its 

justification -- protecting the dignity of foreign diplomats -- was a content-neutral concern over 

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19 

the "secondary effects" of some kinds of speech. The Court was not persuaded: "The emotive 

impact of speech on its audience is not a 'secondary effect.'" Id. at 321. Here, too, the deputies 

were not permitted to determine that some kinds of speech "adversely affect" a funeral. That is 

precisely the type of content-based enforcement of law the First Amendment forbids. 

2. The Deputies Are Not Entitled to Qualified Immunity Because 

the Lowdens' First Amendment Rights in This Situation Were 

Clearly Established. 

Because Defendants have raised the affirmative defense of qualified immunity, the court 

must determine whether the First Amendment rights discussed above were clearly established 

such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation 

he confronted." Saucier, 533 U.S. at 202. To defeat qualified immunity, a plaintiff need not 

identify "a case with the exact same fact pattern or even fundamentally similar or materially 

similar facts." Grawey, 567 F.3d at 313 (internal quotation marks omitted). "Even when 

confronting a novel factual situation, a reasonable officer is 'on notice' that his conduct violates 

clearly established constitutional rights if the state of the law at the time of the alleged 

deprivation provides 'fair warning' that his actions are unconstitutional." Humphrey v. Mabry, 

482 F.3d 840, 852 (6th Cir. 2007) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). 

Here, First Amendment law clearly establishes that the deputies' conduct as alleged in the 

complaint was unconstitutional. In Logsdon, 492 F.3d 334, an anti-abortion protester alleged 

that his arrest for trespassing lacked probable cause and was based on the content of his speech. 

The Sixth Circuit, explaining that "[i]t has long been the case that content-based regulations of 

the citizen's right to engage freely in speech in quintessential public fora presumptively violate 

the First Amendment," ruled that qualified immunity must be denied. Id. at 346.15

 

15 The same holds true under a First Amendment retaliation theory. In Center for BioEthical Reform, 477 F.3d 807 (6th Cir. 2007), anti-abortion activists were detained by the police 

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20 

Qualified immunity should be denied in this case, too, because the deputies were on 

notice that content- and viewpoint-based suppression of speech are unlawful. It was also clearly 

established that they could not arrest a speaker based on a potential "heckler's veto," Glasson, 

518 F.2d at 905, that no reasonable officer in their position would have thought the Lowdens' 

conduct qualified as "fighting words," see Swiecicki, 463 F.3d at 501, and that the content of 

their speech could not form the basis for a determination that it would "adversely affect" the 

funeral, Boos, 485 U.S. at 321. Their only potential defenses involve questions of fact. 

B. The Deputies Violated the Lowdens' Clearly Established Fourth 

Amendment Rights Because There Was No Reasonable Suspicion or 

Probable Cause To Believe They Were Committing Any Crime.

In addition to violating the First Amendment, the deputies violated the Lowdens' Fourth 

Amendment rights by stopping them without reasonable suspicion and arresting them without 

probable cause. Assuming the truth of the allegations in Plaintiffs' complaint and drawing all 

reasonable inferences in their favor, there was absolutely no evidence the Lowdens were 

violating any law, including M.C.L. § 750.167d. The Fourth Amendment's reasonable suspicion 

and probable cause standards are clearly established, and no reasonable officer in the deputies' 

position would think that either a stop or an arrest was warranted. 

1. The Lowdens' Fourth Amendment Rights Were Violated 

Because There Was No Reason To Believe They Were 

Committing Any Crime. 

The deputies' conduct in this case must satisfy two separate standards of the Fourth 

Amendment. Deputy Kahsin could order the Lowdens to pull over for a brief investigatory stop 

only if he had a "reasonable suspicion to believe that criminal activity may [have been] afoot," 

 

for three hours, and they sued on a First Amendment retaliation claim. The Sixth Circuit, noting 

that the right to be free from police retaliation for the exercise of constitutional rights is clearly

established, concluded that the dispositive issue was the intent of the police officers -- a classic 

question of fact for the jury. Id. at 824. Qualified immunity was denied. Id. at 825. 

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21 

"justified by some objective manifestation" that the Lowdens were, or were about to be, 

"engaged in criminal activity." United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal 

quotation marks omitted). Then, Kahsin and Woodcock could make a warrantless arrest of the 

Lowdens only if there was "probable cause" to believe they had committed or were committing a 

crime, an inquiry that "depends upon the reasonable conclusion to be drawn from the facts 

known to the arresting officer[s] at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 

152 (2004). Neither standard was met in this case.

Defendants assert that the deputies were justified in stopping and arresting the Lowdens 

for violating M.C.L. § 750.167d because subsection (1)(c) of that statute prohibits, among other 

things, conduct that the person knows or should reasonably know will "adversely affect" a 

funeral procession. (Defs.' Br. at 17.) Defendants' brief is notable for the fact that it never 

explains why or how the mere presence of a van with homemade signs taped to the inside of its 

windows could "adversely affect" a funeral. Defendants state that the display was a "distraction" 

and "completely out of context for the setting," and that the Lowdens' van "stood out as an oddity 

from all other vehicles in the procession" (id.), but this is not what the statute prohibits.16

 

Defendants also argue that the Lowdens "could have just as easily left their signs at home" (id.), 

but this fact, too, has no relevance to whether the Lowdens' conduct adversely affected the 

funeral procession. 

The Plaintiffs' complaint contains no articulable facts that would warrant a reasonable 

suspicion by Deputy Kahsin that the Lowdens were committing a crime. A funeral flag was on 

display on top of their van, indicating that they were approved participants in the procession. 

(Compl. ¶ 20.) They were not honking their horn, driving erratically, or engaged in any 

 

16 To support these statements Defendants improperly refer the court to exhibits outside 

the pleadings. See Argument I, supra. 

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22 

abnormal conduct. No one complained about the van. Kahsin had no information that the 

Lowdens adversely affected the funeral procession in any way. (Id. ¶ 23.) He stopped the van 

because it had signs in its windows. 

Even assuming, for the sake of argument, that stopping the van was not a violation of the 

Fourth Amendment, the deputies learned nothing during their subsequent investigation to 

establish the probable cause required for a full-fledged custodial arrest. The arrest was lawful 

only if a prudent person would be warranted in believing the Lowdens were committing a crime; 

the probable cause inquiry depends upon the reasonable conclusion to be drawn from the facts 

known at the time of the arrest. Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007). The 

deputies, upon interrogating the Lowdens, learned that they were not protesting and were driving 

in the funeral procession because they were like family to Corporal Motley. (Compl. ¶ 26.) 

Although the deputies were not required to believe the Lowdens' statements, they also obtained 

no additional information to suggest the Lowdens were violating M.C.L. § 750.167d. 

The Sixth Circuit has held that a police officer "must consider the totality of the 

circumstances, recognizing both the inculpatory and exculpatory evidence, before determining if 

he has probable cause to make an arrest." Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 

2000). If most evidence points to innocence, the police "cannot look only at the evidence of guilt 

while ignoring all exculpatory evidence." Id. In this case, the Lowdens were driving slowly in

the funeral procession with a funeral flag on their van; they told the police that they were not 

protesting and were at the funeral because they were like family to the deceased; the police had 

no information to suggest the Lowdens were lying; and the funeral procession was proceeding 

normally. Considering the totality of the circumstances, the mere presence of political signs 

taped to the inside of the Lowdens' van did not give the deputies probable cause to arrest them. 

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23 

"In general, the existence of probable cause in a § 1983 action presents a jury question, 

unless there is only one reasonable determination possible." Parsons v. City of Pontiac, 533 F.3d 

492, 502 (6th Cir. 2008) (internal quotation marks omitted). Based on the facts alleged, this is 

not a case in which the only reasonable determination with respect to probable cause is one that 

favors the arresting officers. A jury could easily find that the information known to the deputies 

when they arrested the Lowdens falls well short of the probable cause standard. See id. at 503. 

2. The Deputies Are Not Entitled to Qualified Immunity Because 

the Lowdens' Fourth Amendment Rights in This Situation 

Were Clearly Established. 

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 id. at 504; Radvansky v. City of Olmstead Falls, 395 F.3d 291, 310 (6th Cir. 2005); 

Gardenhire, 205 F.3d at 313. As previously discussed, Plaintiffs need not identify a case with a 

materially similar fact pattern; the issue is "whether the officers' alleged actions were objectively 

unreasonable in light of the clearly established right." Radvansky, 395 F.3d at 310. In this case, 

the Lowdens were exhibiting no conduct that could be reasonably construed as "adversely 

affecting" a funeral. The deputies' actions in stopping them for further questioning and then 

arresting them for violating M.C.L. § 750.167d were therefore objectively unreasonable. 

Cases such as this one that involve both Fourth Amendment and First Amendment claims 

are particularly unsuited to qualified immunity. Only a person's conduct, not his speech, can be 

the basis for a finding of probable cause. Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 

2006). In Swiecicki, the plaintiff was arrested for "disorderly conduct" at a baseball game 

because he heckled a player on the field. The disorderly conduct statute in that case -- which is 

similar to the "adversely affect" provision of M.C.L. § 750.167d -- prohibited "'conduct likely to 

be offensive or to cause inconvenience, annoyance, or alarm.'" Id. at 499. The plaintiff admitted 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 31 of 36
24 

to some heckling but insisted there was nothing offensive or inappropriate about his conduct. Id. 

The Sixth Circuit ruled that this was a question of fact for the jury, and qualified immunity was 

denied. Id. at 500. The result in this case should be no different. 

C. The Deputies Violated the Lowdens' Clearly Established Due Process 

Rights by Arresting Them for Violating a Statute That Was 

Unconstitutionally Vague As Applied to Them.

In the unlikely event the deputies had probable cause to believe the Lowdens were 

violating M.C.L. § 750.167d, that statute's prohibition on "adversely affecting" a funeral is so 

vague that its application in this case violates due process as a matter of law. "It is a basic 

principle of due process that an enactment is void for vagueness if its prescriptions are not 

clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Even 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." Palmer v. City of Euclid, 402 U.S. 544, 545 (1971) (per curiam) (internal 

quotation marks omitted); see also United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir. 

1993) (holding "multiple voting" statute void for vagueness as applied). Although Plaintiffs 

reserve argument on whether M.C.L. § 750.167d is facially unconstitutional under the vagueness 

doctrine,17 it certainly cannot be applied to the Lowdens' conduct in this case consistent with the 

Due Process Clause. 

1. The Statute Is Unconstitutionally Vague As Applied Because 

No Person of Ordinary Intelligence Would Have Fair Notice 

That the Lowdens' Mere Presence in the Funeral Procession 

Would Be Reasonably Perceived As "Adversely Affecting" It.

The vagueness doctrine protects three "important values," Grayned, 408 U.S. at 108, all 

of which point to the conclusion that M.C.L. § 750.167d is unconstitutionally vague as applied in 

 

17 See Argument III, supra. 

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25 

this case. First, the statute lacks "sufficient definiteness [so] that ordinary people can understand

what conduct is prohibited." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Ordinary people 

would not understand a law against "adversely affecting" funerals to prohibit 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.

Second, the statute lacks "reasonably clear guidelines for law enforcement officials and 

triers of fact in order to prevent arbitrary and discriminatory enforcement." Smith v. Goguen, 

415 U.S. 566, 573 (1974) (internal quotation marks omitted). The risk of arbitrary and 

discriminatory enforcement is manifest, for the term "adversely affect" authorized and even 

encouraged Deputies Kahsin and Woodcock to arrest persons whose otherwise innocent conduct 

they think adversely affects a funeral. 

Third, because the statute "abuts upon sensitive areas of basic First Amendment 

freedoms" and thereby "operates to inhibit the exercise of those freedoms," Grayned, 408 U.S. at 

109, a "more stringent vagueness test should apply," Hoffman Estates v. Flipside, Hoffman 

Estates, Inc., 455 U.S. 489, 499 (1982). Here, the vagueness of the "adversely affects" provision 

directly impacted the Lowdens' freedom of speech and inhibited the exercise of that freedom. 

2. The Deputies Are Not Entitled to Qualified Immunity Because 

the Lowdens' Due Process Rights in This Situation Were 

Clearly Established. 

Defendants make no argument that M.C.L. § 750.167d should survive Plaintiffs' 

vagueness challenge, either on its face or as applied. Instead, they argue that Kahsin and 

Woodcock are entitled to qualified immunity because of "special dilemmas" that "arise from an 

officer's duty to enforce the law under these circumstances." (Defs.' Br. at 19.) They argue that 

the deputies should be granted qualified immunity because they were entitled to presume that 

M.C.L. § 750.167d was constitutional. 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 33 of 36
26 

Defendants expect too much of the qualified immunity doctrine. If an individual officer 

were entitled to qualified immunity on a vagueness-as-applied claim simply because no court 

had previously ruled that particular statute unconstitutionally vague as applied to those particular 

circumstances, qualified immunity would entirely swallow 42 U.S.C. § 1983. That is not the 

rule. See Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996) (denying qualified immunity in 

vagueness-as-applied challenge). 

Vagueness-as-applied necessarily requires the court to examine whether, in the particular 

case before it, the challenged statute failed to give a person of ordinary intelligence fair notice 

that his contemplated conduct was forbidden. Palmer, 402 U.S. at 545. Qualified immunity 

simply asks whether a reasonable officer, in that same situation and given the state of the law at 

that time, would know that the statute could not be validly enforced in those circumstances. In 

fact, the qualified immunity inquiry "turns on whether reasonable officers could disagree about 

whether [their] conduct is illegal, not on whether they know the precise constitutional reason why

it is not lawful." Russo v. City of Bridgeport, 479 F.3d 196, 212 (2d Cir. 2007). 

In this case, that standard is met. The meaning and contours of the void-for-vagueness 

doctrine are clearly established. See Palmer, 402 U.S. at 545; Salisbury, 983 F.2d at 1378. 

Although M.C.L. § 750.167d has not been ruled unconstitutionally vague by any court, the 

vagueness doctrine is sufficiently clear such that no reasonable officer could conclude that the 

statute gave the Lowdens fair notice that their conduct was forbidden. See Leonard v. Robinson, 

477 F.3d 347, 359 (6th Cir. 2007) ("[V]iewing the facts in the light most favorable to the 

plaintiff, no reasonable police officer would believe that any of the . . . Michigan statutes relied 

upon . . . are constitutional as applied . . . ." (emphasis added)). Consequently, qualified 

immunity should be denied on Plaintiffs' as-applied vagueness claim. 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 34 of 36
27 

CONCLUSION

 For the reasons stated above, Defendants' motion should be denied. 

Respectfully submitted, 

/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

/s/ Hugh M. Davis with consent

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

Attorneys for Plaintiffs 

Dated: August 20, 2009 

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 35 of 36
CERTIFICATE OF SERVICE

I hereby certify that on August 20, 2009, I electronically filed the foregoing paper with 

the Clerk of the Court using the ECF system which will send notification of such filing to the 

following: 

Michael J. Steinberg msteinberg@aclumich.org

Cynthia Heenan conlitpc@sbcglobal.net

Hugh M. Davis conlitpc@sbcglobal.net

Patrick A. Aseltyne paseltyne@jrlaf.com

Jason D. Kolkema jkolkema@jrlaf.com

/s/ Daniel S. Korobkin 

Daniel S. Korobkin (P72824) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824 

dkorobkin@aclumich.org

Case 1:09-cv-11209-TLL-CEB Document 23 Filed 08/20/2009 Page 36 of 36