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, Case No. 1:09-cv-11209 

 Hon. Thomas L. Ludington 

vs. Mag. Charles E. Binder 

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, 

SHERIFF GOYT (Clare County),in his individual and official capacities, 

LT. MARK McCLELLAN, in his individual capacity, SGT. WILLIAM LARSON, 

in his individual capacity, ROBERT KENT HAGER, in his individual 

capacity, Sgt. BAILEY, in his individual capacity 

 Defendants. 

_____________________________________________________________________________/ 

Michael J. Steinberg (P 48085) 

Daniel Korobkin (P 72842) 

Kary L. Moss (P 49759) 

Attorneys for Plaintiffs 

American Civil Liberties Union Fund of MI 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824; msteinberg@aclumich.org 

dkorobkin@aclumich.org; kmoss@aclumich.org 

Margaret A. Nelson (P 30342) 

Ann M. Sherman (P 67762) 

Attorneys for Interested Party 

Michigan Dept. of Attorney General 

Public Employment, Elections & Tort Div. 

P.O. Box 30736 

Lansing, MI 48909 

(517) 373-6343/Fax: (517) 373-2454 

nelsonm9@michigan.gov; 

shermana@michigan.gov

Hugh M. Davis (P 12555) 

Cynthia Heenan (P 53664) 

Co-Counsel for Plaintiffs 

Constitutional Litigation Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255/Fax: (313) 961-5999 

conlitpc@sbcglobal.net; Heenan@conlitpc.com 

Patrick A. Aseltyne (P 23293) 

Jason D. Kolkema (P 55936) 

Attorneys for Defs. Clare Cnty, Lawrence 

Kahsin and Calvin Woodcock 

303 S. Waverly Rd. 

Lansing, MI 48917 

(517) 886-3800/Fax: (517) 886-9154 

paseltyne@jrlaf.com; jkolkema@jrlaf.com 

_____________________________________________________________________________/ 

PLAINTIFFS’ FIRST AMENDED COMPLAINT

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INTRODUCTORY STATEMENT

1. This is a federal civil rights action challenging Michigan's funeral protest statute, 

M.C.L. § 750.167d, as unconstitutional on its face and as applied. 

2. On September 26, 2007, Lewis and Jean Lowden (collectively, "the Lowdens") 

traveled to Clare County, Michigan, to attend the funeral of Army Corporal Todd Motley, a close 

family friend and American soldier who was killed in Iraq. Although they were driving in the 

funeral procession at the invitation of Cpl. Motley's family and did nothing to disrupt the 

procession or funeral, the Lowdens were arrested and taken to jail for allegedly violating M.C.L. 

§ 750.167d because the van they were driving displayed signs critical of President Bush and 

other government officials and policies. 

3. M.C.L. § 750.167d(1) 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. 

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

4. In this action, Plaintiffs allege violations of the First, Fourth, and Fourteenth 

Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983. Lewis 

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Lowden brings this lawsuit on his own behalf, and Robert Lowden proceeds as personal 

representative of the estate of Jean Lowden, Lewis Lowden's late wife. 

5. Plaintiff seeks a declaration that Michigan's funeral protest law is unconstitutional 

on its face and as applied, damages, and other appropriate relief. 

JURISDICTION AND VENUE

6. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343 because this is a civil 

action seeking redress for the deprivation of rights secured by the United States Constitution. 

7. Venue is proper under 28 U.S.C. § 1391(b)(2) because the events giving rise to the 

claims asserted occurred in Clare County, which is within the Eastern District of Michigan. 

PARTIES

8. Plaintiff Lewis Lowden is 64 years old and a resident of North Star, Michigan. He 

is a veteran of the United States Army and was decorated with the Good Conduct Medal, the 

Army Achievement Medal, the National Defense Service Medal, the Reserve Components 

Achievement Medal, and the Humanitarian Service Medal. 

9. Plaintiff Robert Lowden is over 18 years old and brings this suit as personal 

representative of the estate of Jean Lowden. Prior to her death, Jean Lowden was the husband of 

Lewis Lowden for 18 years and was a resident of North Star, Michigan. Jean Lowden died on 

June 4, 2008. 

10. Defendant Clare County is a municipal corporation organized under the laws of the 

State of Michigan. The Clare County Sheriff's Department is a division or department of Clare 

County. 

11. Defendant Lawrence Kahsin is, or was at all times relevant to this Complaint, a 

Clare County Sheriff's Deputy. He is being sued in his individual capacity. 

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12. Defendant Calvin Woodcock is, or was at all times relevant to this Complaint, a 

Clare County Sheriff's Deputy. He is being sued in his individual capacity. 

13. Defendant Sheriff Goyt was at all times relevant to this First Amended Complaint, 

the Sheriff of Clare County. He is being sued in his individual and official capacities. He 

directed the preparations for the role that the Sheriff’s Department would play, particularly in the 

funeral procession from the Stocking Funeral Home to the cemetery. 

14. Defendant Lt. Mark McClellan, at all relevant times was an employee of the Clare 

County Sheriff’s Department. He is being sued in his individual capacity. He had operational 

control of the Sheriff’s Department personnel involved in the funeral and the procession. 

15. Defendant Sgt. William Larson, at all relevant times was an employee of the Clare 

County Sheriff’s Department. He is being sued in his individual capacity. He assisted Lt. Mark 

McClellan with the operational control of the Sheriff’s Department personnel at the funeral and 

at the procession. 

16. Defendant Robert Kent Hager, at all relevant times was a deputy with the Clare 

County Sheriff’s Department. He is being sued in his individual capacity. On September 26, 

2007, he was working in traffic control and observed Plaintiffs’ van containing what he 

considered to be anti-government signs. He contacted Sgt. Bailey. He later assisted Deputy 

Kahsin with the arrest by taking photographs and searching the vehicle. 

17. Defendant Sgt. Bailey, at all relevant times was a Sgt. with the Clare County 

Sheriff’s Department. He is being sued in his individual capacity. He received the information 

about Plaintiffs’ van from Deputy Hager and contacted deputy Kahsin regarding said van, 

causing deputy Kahsin to stop it. 

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FACTS

18. On September 26, 2007, the Lowdens traveled to Clare County to attend the funeral 

of Corporal Todd Motley, a close family friend who was killed in action in Iraq at the age of 23 

while serving in the United States Army. 

19. The Lowdens had known Cpl. Motley and his family for approximately fifteen 

years. Jean Lowden homeschooled Cpl. Motley in high school, and Lewis Lowden took Cpl. 

Motley on fishing and camping trips in the summer. The Lowdens were devastated by Cpl. 

Motley's death. 

20. Cpl. Motley's family invited the Lowdens to attend and to participate in Cpl. 

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

which is located in Clare County. 

21. The funeral procession through downtown Harrison was a widely publicized and 

heavily attended event. According to local media reports, hundreds of onlookers lined the streets 

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

Cpl. Motley for his service to our country. 

22. On the day of the funeral, the Lowdens drove to Harrison in their 1995 white Dodge 

Ram van. 

23. For several years, Lewis Lowden 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 the 

President and government policies. The Lowdens had driven the van with these signs for many 

years without incident. 

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24. The signs were still on display from inside the Lowdens' van when they arrived for 

Cpl. Motley's funeral. The signs did not contain any statements critical of the military or Cpl. 

Motley. 

25. Upon arriving at the Motleys' church, 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. 

26. Following the church service, the Lowdens entered the funeral procession and 

proceeded slowly in their vehicle for approximately two miles. 

27. According to a police report, Deputy Kahsin was directing funeral traffic at the 

corner of Cranberry Lake Road and Clare Avenue. At approximately 2:30 p.m., Deputy Kahsin 

was advised 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. 

28. On information and belief, Deputy Kahsin was not advised by anyone of a 

disruption or disturbance caused by Lowdens' participation in the funeral procession, nor did any 

such disruption or disturbance occur. 

29. When the Lowdens' van reached Deputy Kahsin's location, Deputy Kahsin ordered 

Lewis Lowden, who was driving, to pull over. Lewis Lowden pulled over as directed. 

30. Deputy Woodcock arrived on the scene to assist Deputy Kahsin. 

31. Deputy Kahsin asked Lewis Lowden why he had signs in his windows. Lewis 

Lowden replied that it was his First Amendment right to criticize the government. Deputy 

Kahsin then asked both Jean and Lewis Lowden if they were protesting. They both replied that 

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they were not protesting and that they were there to attend the funeral because they were like 

family to Cpl. Motley. 

32. Nonetheless, Deputy Kahsin and Deputy Woodcock placed Lewis Lowden and Jean 

Lowden under arrest for violating M.C.L. § 750.167d and impounded their van. 

33. The Lowdens were detained in jail for approximately twenty-four hours before 

being released on personal recognizance. Jean Lowden, who was 56 years old, had serious 

medical conditions that made her arrest and detention physically painful and distressing. The 

Lowdens were both forced to endure the humiliation of being arrested in the middle of the 

funeral procession, and they could not attend the burial service of Cpl. Motley as they had 

planned. Their pecuniary damages include attorney's fees to defend against unconstitutional 

criminal charges and fees to recover their van from an impound lot. 

34. The criminal charges against the Lowdens were eventually dismissed without 

prejudice. 

COUNT ONE

VIOLATION OF THE FIRST AMENDMENT 

RIGHT TO FREEDOM OF SPEECH 

35. The First Amendment to the United States Constitution prohibits abridgement of the 

freedom of speech, and the First Amendment is incorporated against the States by the Fourteenth 

Amendment. Persons violating the First Amendment under color of state law are liable at law 

and in equity under 42 U.S.C. § 1983. 

36. M.C.L. § 750.167d is facially invalid under the overbreadth doctrine of the First 

Amendment because it prohibits a substantial amount of protected speech. 

37. M.C.L. § 750.167d is also unconstitutional as applied in this case because the 

Lowdens were arrested for actually engaging in constitutionally protected speech. 

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38. Defendant Kahsin, acting under color of state law, violated the Lowdens' clearly 

established rights under the First Amendment by arresting them for engaging in constitutionally 

protected speech. 

39. Defendant Woodcock, acting under color of state law, violated the Lowdens' clearly 

established rights under the First Amendment by arresting them for engaging in constitutionally 

protected speech. 

COUNT TWO

VIOLATION OF THE VAGUENESS 

DOCTRINE OF THE DUE PROCESS CLAUSE 

OF THE FOURTEENTH AMENDMENT 

40. The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution prohibits States from enforcing unconstitutionally vague laws. Persons violating the 

Due Process Clause under color of state law are liable at law and in equity under 42 U.S.C. 

§ 1983. 

41. M.C.L. § 750.167d is facially invalid under the vagueness doctrine of the Due 

Process Clause of the Fourteenth Amendment because it fails to provide a person of ordinary 

intelligence fair notice of what is prohibited and because it is so standardless that it authorizes or 

encourages arbitrary and discriminatory enforcement. 

42. Defendant Kahsin, acting under color of state law, violated the Lowdens' clearly 

established rights under the Due Process Clause by arresting them for violating a law that was 

void for vagueness. 

43. Defendant Woodcock, acting under color of state law, violated the Lowdens' clearly 

established rights under the Due Process Clause by arresting them for violating a law that was 

void for vagueness. 

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COUNT THREE

VIOLATION OF THE FOURTH AMENDMENT 

RIGHT TO BE FREE FROM UNREASONABLE 

SEARCHES AND SEIZURES 

44. The Fourth Amendment to the United States Constitution prohibits unreasonable 

searches and seizures, and the Fourth Amendment is incorporated against the States by the 

Fourteenth Amendment. Persons violating the Fourth Amendment under color of state law are 

liable at law and in equity under 42 U.S.C. § 1983. 

45. Defendant Kahsin, acting under color of state law, violated the Lowdens' clearly 

established rights to be free from unreasonable searches and seizures by stopping their van 

without probable cause to believe that they had violated M.C.L. § 750.167d and without 

reasonable suspicion that they had violated M.C.L. § 750.167d. 

46. Defendant Kahsin, acting under color of state law, violated the Lowdens' clearly 

established rights to be free from unreasonable searches and seizures by arresting them without 

probable cause. 

47. Defendant Woodcock, acting under color of state law, violated the Lowdens' clearly 

established rights to be free from unreasonable searches and seizures by arresting them without 

probable cause. 

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COUNT FOUR

MUNICIPAL LIABILITY FOR VIOLATION OF 

THE FIRST, FOURTH, AND FOURTEENTH 

AMENDMENTS 

48. Under 42 U.S.C. § 1983, municipal defendants are "persons" liable for their 

unconstitutional policies, customs, and practices. 

49. Upon information and belief, the unconstitutional acts of Defendants Kahsin and 

Woodcock were undertaken pursuant to a policy, custom, or practice of Defendant Clare County 

and its Sheriff's Department of enforcing M.C.L. § 750.227 in violation of the First Amendment. 

50. Upon information and belief, the unconstitutional acts of Defendants Kahsin and 

Woodcock were undertaken pursuant to a policy, custom, or practice of Defendant Clare County 

and its Sheriff's Department of enforcing M.C.L. § 750.227 in violation of the vagueness 

doctrine of the Due Process Clause of the Fourteenth Amendment. 

51. Upon information and belief, the unconstitutional acts of Defendants Kahsin and 

Woodcock were undertaken pursuant to a policy, custom, or practice of Defendant Clare County 

and its Sheriff's Department of conducting unreasonable searches and seizures in violation of the 

Fourth Amendment. 

RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests that this Court: 

a. assert jurisdiction over this matter; 

b. declare that Plaintiff's and his late wife's rights under the First, Fourth, and 

Fourteenth Amendments were violated by Defendants; 

c. declare M.C.L. § 750.167d unconstitutional on its face; 

d. award compensatory damages to Plaintiff in his individual capacity and as personal 

representative of his wife's estate; 

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e. award costs and attorney's fees pursuant to 42 U.S.C. § 1988; and 

f. grant or award such other relief that this Court deems just and proper. 

Respectfully submitted, 

_s/Hugh M. Davis_______________ 

 Hugh M. Davis (P 12555) 

Cynthia Heenan (P 53664) 

Co-Counsel for Plaintiffs 

Constitutional Litigation Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255/Fax: (313) 961-5999 

conlitpc@sbcglobal.net; 

Heenan@conlitpc.com 

 - and- 

_s/Michael J. Steinberg___________

Michael J. Steinberg (P 48085) 

Daniel Korobkin (P 72842) 

Kary L. Moss (P 49759) 

Attorneys for Plaintiffs 

American Civil Liberties Union Fund of MI 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824; msteinberg@aclumich.org 

dkorobkin@aclumich.org; 

kmoss@aclumich.org 

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JURY DEMAND

 Plaintiff demands a jury trial. 

Respectfully submitted, 

_s/Hugh M. Davis_______________ 

 Hugh M. Davis (P 12555) 

Cynthia Heenan (P 53664) 

Co-Counsel for Plaintiffs 

Constitutional Litigation Associates, P.C. 

450 W. Fort St., Ste. 200 

Detroit, MI 48226 

(313) 961-2255/Fax: (313) 961-5999 

conlitpc@sbcglobal.net; 

Heenan@conlitpc.com 

 - and- 

_s/Michael J. Steinberg___________

Michael J. Steinberg (P 48085) 

Daniel Korobkin (P 72842) 

Kary L. Moss (P 49759) 

Attorneys for Plaintiffs 

American Civil Liberties Union Fund of MI 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6824; msteinberg@aclumich.org 

dkorobkin@aclumich.org; 

kmoss@aclumich.org 

Dated: October 8, 2010 

F:\Cases\Lowden, Lewis\08-023 (C-R)\Pldgs\1st Amended Complaint.docx 

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CERTIFICATE OF SERVICE

 I hereby certify that on 10/8/10, I electronically filed the foregoing document with the 

Clerk of the Court for the Eastern District of Michigan using ECF system which will send 

notification of such filing to the following registered participants of the ECF system as listed on 

the Court’s Notice of Electronic Filing: 

Patrick Aseltyne paseltyne@jrlaf.com 

Jason Kolkema jkolkema@jrlaf.com; klafraugh@jrlaf.com 

Margaret Nelson nelsonm9@michigan.gov; toddw1@michigan.gov; albrol@michigan.gov 

Michael Steinberg msteinberg@aclumich.org; bbove@aclumich.org 

Daniel Korobkin dkorobkin@aclumich.org 

Ann Sherman shermana@michigan.gov; toddw1@michigan.gov; albrol@michigan.gov 

 

By: s/Jillian R. Rosati 

 Jillian R. Rosati 

F:\Cases\Lowden, Lewis\08‐023 (C‐R)\Pldgs\1st Amended Complaint.docx

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