Key Points

  • The Sixth Circuit declined to extend the Hartman and Nieves no-probable-cause rules to retaliation claims based on enforcement of minor civil parking infractions.
  • The panel reversed dismissal of First Amendment retaliation claims against Mayor Brandon King and Chief of Staff Michael Smedley.
  • Police Chief Scott Gardner received qualified immunity because he acted as a conduit for the mayor's office's directives rather than out of personal retaliatory motive.
  • The court vacated summary judgment for the city on Monell liability and remanded for determination of final policymaker status.
  • The panel affirmed the Fourth Amendment ruling, finding the impoundment served a community-caretaking function under standardized criteria.

A Sixth Circuit panel on Thursday revived First Amendment retaliation claims brought by an East Cleveland, Ohio, man who alleged city officials targeted him with parking citations and impounded his truck after he used a sound truck to campaign for a mayoral challenger.

The three-judge panel reversed the dismissal of claims against Mayor Brandon King and his chief of staff Michael Smedley, holding that neither the Supreme Court's Hartman rule for retaliatory prosecutions nor its Nieves rule for retaliatory arrests applies to enforcement of minor civil parking infractions. The court affirmed qualified immunity for Police Chief Scott Gardner, finding he acted as a conduit for the mayor's office rather than out of personal retaliatory motive.

Writing for the panel, Judge Nalbandian said the court was unwilling to import the no-probable-cause requirement into the civil enforcement context. "We decline to extend either Hartman or Nieves to the parking-related actions here," he wrote, in an opinion joined by Chief Judge Kethledge and Judge Bush.

William Fambrough had lived in East Cleveland since 2006 and had used a sound truck for political advocacy for years without incident. In spring 2021, when city councilor Juanita Gowdy announced she would challenge King in the mayoral primary, Fambrough threw himself into her campaign, broadcasting messages like "It's time for a change, elect Juanita Gowdy" and "No more lying, no more stealing" as he drove around the city.

According to the opinion, city officials quickly turned their attention to Fambrough. Smedley regularly called Gardner to discuss Fambrough's campaigning and "implied that he wanted [Gardner] and the police department to do something to stop Mr. Fambrough," the court recounted. Gardner estimated he received 15 to 20 such calls, sometimes with Smedley providing updates on the specific location of Fambrough's truck.

The attention struck Gardner as unusual. The mayor's office was not this attentive even in homicide cases, the court noted, and Gardner thought it odd to devote so much attention to permitting and parking issues given that the city had only about 50 officers and "serious crime problems."

On August 9, 2021, Smedley called Gardner "extremely upset" and cursed at him for being "incompetent" and failing to "take care of" Fambrough's truck. Gardner then emailed the entire police department: "Please, find this vehicle and tow it. Cite the operator with disturbing the peace and loud music. Please contact me as soon as this is complete to claim a surprise."

Officers located Fambrough's truck parked on the street outside his home on August 18, issued him a parking citation, and impounded the vehicle. A noise citation followed. The truck sustained roughly $6,000 in damage during the tow and sat inoperable for the rest of the campaign.

The city later prosecuted Fambrough for violating the noise ordinance. According to the opinion, assistant law director Heather McCollough told Fambrough's attorney that though her office was typically willing to resolve minor noise complaints, Fambrough needed to "stand down" from making complaints about the police department and public-records requests. She said a deal might be possible now that King had won reelection. Fambrough pleaded no contest to a reduced charge of disorderly conduct.

The court distinguished between the different types of adverse actions Fambrough alleged. For the noise prosecution, Hartman's no-probable-cause rule applies. For the noise citation, Nieves governs because issuing a citation "is more like an arrest than a prosecutor's decision to bring charges." But for the parking citation and impoundment, neither framework applies.

Nalbandian offered three reasons for declining to extend the probable-cause requirement to parking enforcement. First, unlike arrests where "protected speech is often a wholly legitimate consideration for officers," whether a vehicle violates parking rules "is wholly independent of anything its owner has said." Second, the common-law analogs point in different directions, with wrongful civil proceedings requiring lack of probable cause but abuse of process not requiring it. Third, "the ease with which an official could resort to enforcing minor civil infractions as a tool of retaliation counsels against extending the no-probable-cause rule."

The court noted that "the typical catalogue of municipal ordinances touches nearly every aspect of daily life" and that an official "need only pick a target because the search for a violation won't be hard." Small-dollar fines make such enforcement unlikely to be contested. "These conditions are the natural habitat of retaliation," Nalbandian wrote.

The panel vacated summary judgment for the city on Fambrough's municipal liability claim, finding genuine disputes about whether officials had probable cause to enforce the noise ordinance. The city could not produce records of noise complaints it claimed were logged in its computer-aided dispatch system. The court remanded for the district court to determine which city officials were final policymakers and whether their decisions directly caused the constitutional violation.

The panel affirmed summary judgment for the city on Fambrough's Fourth Amendment claim, finding the impoundment served a community-caretaking function and was conducted under standardized criteria. It also affirmed rejection of his facial challenge to the city's permitting ordinance, finding the standards sufficiently cabin official discretion.

Lawyers for Fambrough and his company Legacy Communications included Benjamin A. Field of the Institute for Justice. Kenneth D. Myers represented the city.

The case now returns to the Northern District of Ohio for further proceedings on the retaliation claims against King, Smedley, and the city.