Civil Rights – Retaliatory arrest – Probable cause

Where a plaintiff has moved for reconsideration of the dismissal of her retaliatory arrest claim, that motion must be denied because there was probable cause for the arrest.

“When Plaintiff was a member of the City of Albion’s City Council, she sent text messages to the city manager encouraging her to ‘get rid of’ the city’s chief of public safety, Scott Kipp. However, the city’s charter prohibited council members from individually directing the appointment or removal of city employees. The charter also provided for criminal penalties for acts violating the charter. After Kipp complained to the mayor that Plaintiff was harassing him, the city council hired a law firm to investigate Plaintiff. The law firm did not find sufficient evidence of harassment, but it concluded that Plaintiff had violated the charter by directing the city manager to fire Kipp. The city council then hired a special prosecutor to prosecute Plaintiff for violating the charter. A prosecutor did so and she was acquitted.

“In a previous opinion, the Court granted Defendants’ motion to dismiss some of Plaintiff’s claims. Among other things, the Court concluded that the city had probable cause to order the prosecution of Plaintiff, which defeated her claim of retaliatory prosecution.

“The Court concluded that Defendants had probable cause to prosecute and arrest Plaintiff, which defeats her malicious prosecution claim. Probable cause ‘should generally defeat’ a claim for retaliatory arrest. Nieves v. Bartlett , 139 S. Ct. 1715, 1727 (2019). However, Plaintiff argues that it does not defeat her claim, citing Lozman v. City of Riviera Beach , 585 U.S. 87 (2018).

“The Court is not persuaded that Lozman or the exception in Nieves apply here. Accordingly, the Court will deny the motion for reconsideration.

“Defendants argue that the city is not liable because Plaintiff has not shown a violation of her constitutional rights.

“In response, Plaintiff apparently contends that her rights were violated when the city council voted to prosecute her for telling the city manager to ‘get rid of’ Kipp. In particular, she contends that the prosecution violated her rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment because the city’s charter was unconstitutionally overbroad and vague. The Court disagrees.

“For the foregoing reasons, the Court will deny Plaintiff’s motion for reconsideration and grant Defendants’ motion for summary judgment. Defendants’ motion resolves the remaining claims in the case, so the Court will enter a judgment dismissing the case.”

Brown v. City of Albion; MiLW 03-108009, 11 pages; U.S. District Court for the Western District of Michigan; Jarbou, J.

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