               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0411n.06

                                         No. 18-3939


                         UNITED STATES COURT OF APPEALS                             FILED
                              FOR THE SIXTH CIRCUIT                           Aug 07, 2019
                                                                          DEBORAH S. HUNT, Clerk
 VIRGIL VADUVA,

        Plaintiff - Appellant,
                                                    ON APPEAL FROM THE UNITED
 v.                                                 STATES DISTRICT COURT FOR THE
                                                    SOUTHERN DISTRICT OF OHIO
 CITY OF XENIA, et al.,

        Defendants - Appellees.



BEFORE:       NORRIS, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Virgil Vaduva appeals the district court’s December 19,

2017 order granting Defendants Michael Engle, Joshua Long, Wesley Smith, Jeanne Mills, John

Caupp, Marsha Bayless, Jeffrey Osburn, and David Pazynski judgment on the pleadings, as well

as the district court’s September 4, 2018 order granting Defendant City of Xenia summary

judgment. Plaintiff’s complaint, filed pursuant to 42 U.S.C. §§ 1983, 1985(3), alleges that

Defendants enacted and enforced Xenia Codified Ordinance § 648.12, in violation of the First and

Fourteenth Amendments to the United States Constitution. For the reasons set forth below, we

AFFIRM the district court’s orders.

                                       BACKGROUND
                                      Factual Background
       Defendant City of Xenia is a small city in southwestern Ohio. In June 2013, Defendants

Michael Engle, Joshua Long, Wesley Smith, Jeanne Mills, and John Caupp were members of the

Xenia City Council, Defendant Marsha Bayless was the Mayor of Xenia, and Defendants Jeffrey
                                                     No. 18-3939


Osburn and David Pazynski were officers of the Xenia Police Department. We refer to these

Defendants as “the City,” “City Council Defendants,” and “Officer Defendants” respectively.


        On June 13, 2013, City Council Defendants voted unanimously to enact Xenia Codified

Ordinance § 648.12 and to amend Xenia Codified Ordinance § 604.01. XCO § 648.12 prohibits

“panhandling” in numerous forms and areas of the City.1 And XCO § 604.01 in part defines

“panhandling” as “[t]o request verbally, in writing, or by gesture or other actions, money, items of

value, a donation, or other personal financial assistance . . . [or to] request for a person to purchase

an item for an amount that a reasonable person would consider to be in excess of its value.”




        1
            XCO § 648.12 states, in relevant part:
                   (b) No person shall solicit for panhandling in any of the following manners:
                   (1) In any type of aggressive manner;
                   (2) On any private property in which there is any type of written notice prohibiting
                       solicitation and/or panhandling;
                   (3) On any other private property, unless the person panhandling has obtained prior
                       permission from the owner or occupant;
                   (4) From any operator or occupant of a motor vehicle or from any person entering or
                       exiting a motor vehicle;
                   (5) Within 20 feet of any pedestrians waiting in line for service or waiting in line for an
                       event;
                   (6) Within 20 feet of any pedestrians waiting in line to obtain access to a building;
                   (7) Within 20 feet of any entrance or exit of the building for any check cashing business,
                       bank, credit union, or savings and loan during the hours of operation of any of these
                       businesses;
                   (8) Within 20 feet of any automated-teller machine during its hours of operation;
                   (9) At any bus stops or bus shelters;
                  (10) In any vehicle with the right-of-way;
                  (11) In any public transportation vehicle or any public transportation facility;
                  (12) Within 20 feet of the area of the sidewalk;
                  (13) Within 20 feet of the entrance or exit of any public facility;
                  (14) On public property within 20 feet of an entrance to a building;
                  (15) On public property within 20 feet of an entrance to a parking lot;
                  (16) On a public street, by intentionally or recklessly blocking the safe or free passage of a
                       person or vehicle;
                  (17) In any manner which involves the use of false or misleading representations. . . .
                   (d) Whoever violates this section is guilty of panhandling, a misdemeanor of the fourth
                       degree. Whoever violates this sections three times or more within one year is guilty of
                       a third degree misdemeanor.

                                                            2
                                                    No. 18-3939


         On February 13, 2015, Plaintiff, seeking to challenge the constitutionality of XCO

§ 648.12, solicited donations on the sidewalk outside of the entrance to Xenia City Hall. Plaintiff

solicited donations by holding a sign that read, “HELP THE POOR NEED $ FOOD,” and asking

passersby if they could spare a few dollars. Plaintiff stated to several passersby that that he would

give any donations he received to a local charity. Officer Defendants subsequently issued Plaintiff

a citation for violating XCO § 648.12(b)(13), which prohibits panhandling “[w]ithin 20 feet of the

entrance or exit of any pubic facility.”2


         Plaintiff was convicted following a jury trial. On appeal, Plaintiff argued that his conviction

should be vacated because he did not engage in “panhandling” as defined by XCO § 604.01.

Specifically, Plaintiff argued that in order to constitute “panhandling,” an individual must solicit

donations for personal use, rather than for charity. The appellate court agreed, and vacated

Plaintiff’s conviction on the grounds that the trial court’s jury instructions did not state that

Plaintiff must have solicited donations for personal use, rather than for charity. The state declined

to re-prosecute Plaintiff, and the case against him was dismissed. Plaintiff does not intend to solicit

donations for personal use in the future.

                                               Procedural History
         On February 9, 2017, Plaintiff filed a complaint against Defendants in the United States

District Court for the Southern District of Ohio. Plaintiff’s complaint, filed pursuant to 42 U.S.C.

§§ 1983, 1985(3),3 alleges in relevant part (1) that City Council Defendants voted to enact XCO

§ 648.12, (2) that Officer Defendants enforced XCO § 648.12 by issuing Plaintiff a citation for


         2
           Plaintiff filmed many of his interactions with passersby as well as his interactions with Officer Defendants;
the video can be found at http://vimeo.com/119646554. At the beginning of the video, Plaintiff stated that he would
give any donations he received to a local charity.
         3
           42 U.S.C. § 1985(3) provides a cause of action for certain conspiracies to deprive an individual of his or
her constitutional rights. See, e.g., Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir. 1992).

                                                           3
                                           No. 18-3939


violating XCO § 648.12(b)(13), (3) that the City enacted XCO § 648.12, which is unconstitutional

on its face and as applied, and (4) that the City enforced XCO § 648.12 by executing an unlawful

policy or custom, all in violation of the First and Fourteenth Amendments to the United States

Constitution.


        Defendants filed a motion for judgment on the pleadings. On December 19, 2017, the

district court granted the motion with respect to City Council Defendants and Officer Defendants,

but denied the motion with respect to the City. Adopting a magistrate judge’s report and

recommendation, the district court reasoned that City Council Defendants are entitled to legislative

immunity against Plaintiff’s claims, and that Officer Defendants are entitled to qualified immunity

against Plaintiff’s claims.


        The City filed a motion for summary judgment. On September 4, 2018, the district court

granted the motion. The district court reasoned that Plaintiff lacks standing to challenge the

constitutionality of XCO § 648.12 on its face or as applied, and that Plaintiff failed to demonstrate

deliberate indifference in furtherance of his claim that the City executed an unlawful policy or

custom. Accordingly, the case was dismissed.


        This appeal followed.
                                          DISCUSSION
   I.      Standard of Review
        We review a district court’s order granting judgment on the pleadings de novo. Hindel v.

Husted, 875 F.3d 344, 346 (6th Cir. 2017). We accept as true all well-pleaded factual allegations

of the non-moving party, but need not accept as true unwarranted factual inferences or legal

conclusions. Jackson v. Prof’l Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017). Judgment on the




                                                 4
                                            No. 18-3939


pleadings should be granted when no material issue of fact exists and the moving party is entitled

to judgment as a matter of law. Id.


         Similarly, we review a district court’s order granting summary judgment de novo. Hyland

v. HomeServices of Am., Inc., 771 F.3d 310, 316 (6th Cir. 2014). We draw all reasonable inferences

in favor of the non-moving party, but need not draw strained and unreasonable inferences. Audi

AG v. D’Amato, 469 F.3d 534, 545 (6th Cir. 2006). Summary judgment should be granted when

there is no genuine dispute as to any material fact and the moving party is entitled to judgment as

a matter of law. Hyland, 771 F.3d at 316.

   II.      Analysis
         We will address Plaintiff’s claims against each set of Defendants in turn.
         A. City Council Defendants
         Plaintiff’s complaint alleges that City Council Defendants violated the First and Fourteenth

Amendments by “pass[ing] and sign[ing] into effect” XCO § 648.12, “[t]he effect of [which] was

to restrict panhandling in all but extremely limited areas.” (RE 1, Complaint, PageID # 5.) The

district court held that City Council Defendants are entitled to legislative immunity against

Plaintiff’s claims. We agree.


         Local legislators sued in their individual capacities may invoke absolute legislative

immunity to insulate themselves from liability for certain actions. Smith v. Jefferson Cty. Bd. of

Sch. Comm’rs, 641 F.3d 197, 218 (6th Cir. 2011). This immunity “attaches to all actions taken in

the sphere of legitimate legislative activity.” R.S.S.W., Inc. v. City of Keego Harbor, 397 F.3d 427,

437 (6th Cir. 2005) (quotation omitted). And passing an ordinance is a “purely legislative act.” Id.

at 438; see also Tucker v. City of Richmond, 388 F.3d 216, 224 (6th Cir. 2004); Shoultes v Laidlaw,




                                                  5
                                                     No. 18-3939


886 F.2d 114, 117 (6th Cir. 1989). Thus, City Council Defendants are entitled to legislative

immunity against Plaintiff’s claims.


         Plaintiff argues that City Council Defendants are not entitled to legislative immunity

because passing an unconstitutional ordinance is not within the sphere of legitimate legislative

activity, and that the district court erred by “focus[ing] on the nature of the act [rather than] the

unconstitutionality of the ordinance.” (Reply Brief for Appellant at 12.) Yet, to the contrary,

“whether an act is legislative turns on the nature of the act, rather than on the motive or intent of

the official performing it.”4 Canary v. Osborn, 211 F.3d 324, 329 (6th Cir. 2000) (quotation

omitted); see also Collins v. Vill. of New Vienna, 75 F. App’x 486, 488 (6th Cir. 2003) (per curiam).

Thus, the constitutionality of XCO § 648.12 is not relevant to this legislative immunity analysis.

See, e.g., Smith, 641 F.3d at 218 (“Even if the Board did not have the power to abolish the

alternative school under Tennessee law, the Board members may still enjoy legislative immunity

as individuals in federal court for their legislative actions, sound or unsound.”); Shoultes, 886 F.2d

at 117–18 (“While the ordinance subsequently was held invalid, it was passed by a properly

constituted legislative body, which was empowered to pass zoning regulations. Accordingly, we

hold that the Mayor and Council members are shielded from suit by absolute legislative

immunity.”).




         4
            In Haskell v. Washington Twp., 864 F.2d 1266, 1278 (6th Cr. 1988), this Court appeared to hold otherwise,
stating that “absolute [legislative] immunity does not extend to even traditionally legislative actions of officials taken
either in bad faith, because of corruption, or primarily in furtherance of personal instead of public interests.” However,
the Supreme Court’s subsequent decision in Bogan v. Scott-Harris, 523 U.S. 44 (1998), “made clear that the
determination of whether an act[] is ‘legislative’ must be made without regard to the legislators’ subjective intent.”
Canary v. Osborn, 211 F.3d 324, 329 (6th Cir. 2000). The rationale for this rule is straightforward: “[T]he threat of
liability,” including liability based on a judge’s or jury’s determination of legislators’ subjective intent, “may
significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison.” Smith,
641 F.3d at 219 (quotation omitted).

                                                            6
                                                  No. 18-3939


        Accordingly, we hold that City Council Defendants are entitled to judgment on the

pleadings based on legislative immunity.5

        B. Officer Defendants

        Plaintiff’s complaint alleges that Officer Defendants violated the First and Fourteenth

Amendments by “issu[ing] [a] citation” to Plaintiff for violating XCO § 648.12(b)(13) “and

prepar[ing] a report to support the citation,” with “utter and wanton disregard for the law.” (RE 1,

PageID # 6.) The district court held that Officer Defendants are entitled to qualified immunity

against Plaintiff’s claims. We agree.

        Local government officials sued in their individual capacities may invoke qualified

immunity to insulate themselves from liability for certain actions. Rafferty v. Trumbull County,

915 F.3d 1087, 1093 (6th Cir. 2019). This immunity “shields government officials . . . from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Cahoo v. SAS Analytics

Inc., 912 F.3d 887, 897 (6th Cir. 2019) (quotation omitted). At the motion to dismiss or judgment

on the pleadings stage, the test is “whether, reading the complaint in the light most favorable to

the plaintiff, it is plausible that an official’s acts violate the plaintiff’s clearly established

constitutional right.” Id. at 899 (quotation omitted). This test can be broken down into two steps.

Id. at 897. First, “do the facts alleged show that the [official’s] conduct violated a constitutional

right?” Id. (quotation omitted). And second, “is the right clearly established?” Id. (quotation

omitted). We may address the steps in either order, and begin with the second step.




        5
          This legislative immunity analysis applies equally to Plaintiff’s § 1983 and § 1985(3) claims. See Tenney
v. Brandhove, 341 U.S. 367, 379 (1951); see also Krause v. Rhodes, 471 F.2d 430, 453–54 (6th Cir. 1972), rev’d on
other grounds by Scheuer v. Rhodes, 416 U.S. 232 (1974).


                                                        7
                                           No. 18-3939


        Regardless of whether the facts alleged show that the official’s conduct violated a

constitutional right, “officials should generally receive qualified immunity when enforcing

properly enacted laws.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 441 (6th Cir. 2016); see

also Risbridger v. Connelly, 275 F.3d 565, 573–74 (6th Cir. 2002); Wolfel v. Morris, 972 F.2d 712,

719–20 (6th Cir. 1992). This is because, in such cases, the official’s conduct “typically satisfies

the core inquiry . . . that the immunity doctrine was designed to test,” “the objective

reasonableness of [the] official’s conduct.” Citizens in Charge, 810 F.3d at 441 (quotation

omitted); see also Andrews v. Hickman County, 700 F.3d 845, 853 (6th Cir. 2013) (“The doctrine

[of qualified immunity] focuses on ‘the objective reasonableness of an official’s conduct, as

measured by reference to clearly established law’ . . . .”). “Any other approach would place risky

pressures on public officials to second-guess legislative decisions.” Citizens in Charge, 810 F.3d

at 442. Officials faced with a statute of questionable validity “would find themselves forced to

choose between applying the law (and subjecting themselves to monetary liability) or declining to

do so (and subjecting themselves to a mandamus lawsuit),” which “is not a recipe for good

government.” Id.


       However, “[t]he enforcement of a presumptively valid law . . . does not automatically

entitle officials to qualified immunity.” Id. For instance, some laws may be “grossly and flagrantly

unconstitutional.” Id. (quotation omitted). In such cases, “any reasonable offic[ial] would decline

to enforce them,” and officials that do enforce them would not be entitled to qualified immunity.

Id.; see also Risbridger, 275 F.3d at 573. As an example, in Leonard v. Robinson, 477 F.3d 347,

359 (6th Cir. 2007), this Court held that “no reasonable police officer would believe” that three

Michigan statutes were constitutional as applied to the defendant’s arrest of the plaintiff for

engaging in “political speech during a democratic assembly.”


                                                 8
                                                     No. 18-3939


         In this case, Officer Defendants were enforcing a properly enacted ordinance when they

issued Plaintiff a citation for soliciting donations for charity on the sidewalk in front of Xenia City

Hall. Indeed, Plaintiff, seeking to challenge the constitutionality of XCO § 648.12, affirmatively

asked Officer Defendants to issue him a citation for violating the ordinance. Thus, Officer

Defendants are entitled to qualified immunity against Plaintiff’s claims unless XCO § 648.12 is

“grossly and flagrantly unconstitutional.” Citizens in Charge, 810 F.3d at 442 (citation omitted).

         Plaintiff argues that it is, and analogizes this case to Speet v. Schuette, 726 F.3d 867, 870

(6th Cir. 2013), in which this Court held that Michigan’s “anti-begging statute” violated the First

Amendment on its face. However, the statute at issue in Speet was significantly broader than XCO

§ 648.12. Michigan’s anti-begging statute prohibited “begging in a public place,” Mich. Comp.

Laws § 750.167(1)(h), and this Court reasoned that it could not be read to “limit its constitutional

effect;” rather, it “simply ban[ned] an entire category of activity that the First Amendment

protects.” Speet, 726 F.3d at at 879. In contrast, XCO § 648.12 prohibits “panhandling” in 17

specific forms and areas of the City. While one might argue that the 17 specific prohibitions in

XCO § 648.12 effectively ban an entire category of activity that the First Amendment protects,

whether that argument would be successful is unclear, particularly in light of this Court’s frequent

acknowledgment that “facial overbreadth has not been invoked when a limiting construction has

been or could be placed on the challenged statute.” Id. Thus, XCO § 648.12 is not grossly and

flagrantly unconstitutional, and Officer Defendants are entitled to qualified immunity against

Plaintiff’s claims.6


         6
            To be sure, since the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), which
clarified the proper analysis for whether a law is content-based or content-neutral, several courts have held various
types of anti-solicitation laws to be unconstitutional. See, e.g., Cutting v. City of Portland, 802 F.3d 79 (1st Cir. 2015);
Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015); Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015).
However, each of these cases, including Reed, was decided after February 13, 2015, the date on which Officer
Defendants cited Plaintiff for violating XCO § 648.12. And whether Plaintiff’s constitutional rights were clearly

                                                             9
                                                    No. 18-3939


         Accordingly, we hold that Officer Defendants are entitled judgment on the pleadings based

on qualified immunity.7

         C. The City

             i. Plaintiff’s Challenges to the Constitutionality of XCO § 648.12

         Plaintiff’s complaint alleges that XCO § 648.12, both on its face and as applied, is an

unconstitutional restriction on his First Amendment right to solicit donations for charity.8 The

district court held that Plaintiff lacks standing to challenge the constitutionality of XCO § 648.12

on its face or as applied. We agree.

         “The irreducible constitutional minimum of standing contains three elements:” (1) “the

plaintiff must have suffered an injury in fact” that is both “concrete and particularized” and “actual

or imminent,” (2) “there must be a causal connection between the injury and the conduct

complained of,” and (3) “it must be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision” of the court. Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747,

752 (6th Cir. 2018) (quotation omitted). However, “plaintiffs who have standing to bring a

damages claim do not necessarily have standing to bring a claim for injunctive relief” or a claim

for declaratory relief. Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n.1 (6th Cir. 2014). Rather,

plaintiffs seeking injunctive or declaratory relief must show “actual present harm or a significant

possibility of future harm.” Grendell v. Ohio Supreme Court, 252 F.3d 828, 833 (6th Cir. 2001)

(quotation omitted).


established “turns on the federal constitutional, statutory, and case law existing at the time of the challenged action.”
Rodgers v. Jabe, 43 F.3d 1082, 1085 (6th Cir. 1995) (emphasis added).
         7
          This qualified immunity analysis applies equally to Plaintiff’s § 1983 and § 1985(3) claims. See Vakilian
v. Shaw, 335 F.3d 509, 521 (6th Cr. 2003).
         8
            For the first time on appeal, Plaintiff also argues that XCO § 648.12 is unconstitutionally vague. However,
Plaintiff forfeited this argument by not raising it before the district court. See Pittman v. Experian Info. Sols., Inc.,
901 F.3d 619, 630 n.6 (6th Cir. 2018).


                                                          10
                                                    No. 18-3939


         Plaintiff’s facial and as-applied challenges to the constitutionality of XCO § 648.12 seek

injunctive and declaratory relief, i.e., relief on a “forward-going basis.” Brent v. Wayne Cty. Dep’t

of Human Servs., 901 F.3d 656, 675 (6th Cir. 2018); see also Women’s Med. Prof’l Corp. v.

Voinovich, 130 F.3d 187, 193 (6th Cir. 1997) (“If a statute is unconstitutional as applied, the State

may continue to enforce the statute in different circumstances where it is not unconstitutional, but

if a statute is unconstitutional on its face, the State may not enforce the statute under any

circumstances.”). Specifically, Plaintiff seeks “[e]quitable relief, including, without limitation, an

order preliminarily and permanently enjoining the City of Xenia . . . from enforcing XCO § 648.12

until it is repealed or amended to conform with the 1st Amendment to the United States

Constitution.” (RE 1, PageID # 9.) Accordingly, Plaintiff must show “actual present harm or a

significant possibility of future harm” resulting from the City’s continued enforcement of XCO

§ 648.12. Brent, 901 F.3d at 675 (quotation omitted). Plaintiff has not met this burden. For

instance, Plaintiff has not alleged that he intends in the future to engage in conduct that XCO

§ 648.12 currently prohibits, such as soliciting donations for personal use on the sidewalk outside

the entrance of Xenia City Hall. Thus, Plaintiff lacks standing to challenge the constitutionality of

XCO § 648.12 on its face or as applied.9

         Plaintiff argues that he has standing to challenge the constitutionality of XCO § 648.12

“because he was cited and prosecuted for exercising his constitutional right to collect donations

for charity.” (Brief for Appellant at 46.) But this past injury “is not an adequate injury in fact to




         9
            That Plaintiff challenges the constitutionality of XCO § 648.12 on First Amendment overbreadth grounds
does not alter this conclusion, as “a party asserting an overbreadth challenge still must show an injury in fact to
challenge the provision.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 985 (6th Cir. 2012). Moreover,
Plaintiff’s challenges to the constitutionality of XCO § 648.12 allege that the ordinance is an unconstitutional
restriction on his First Amendment right to solicit donations for charity. Yet, as discussed above, XCO § 648.12 does
not restrict Plaintiff’s right to solicit donations for charity. In order to constitute “panhandling,” an individual must
solicit donations for personal use. State v. Vaduva, 66 N.E.3d 212, 218–19 (Ohio Ct. App. 2016).

                                                          11
                                                No. 18-3939


confer standing for declaratory and injunctive relief.” Grendell, 252 F.3d at 832; see also Barber

v. Miller, 809 F.3d 840, 849 (6th Cir. 2015) (“Though [the plaintiff] has standing to sue under

§ 1983 for past harms, he must demonstrate separate standing to seek declaratory or injunctive

relief focused on prospective harm.”). To be sure, past injury “might be ‘evidence bearing on

whether there is a real and immediate threat of repeated injury.’” Grendell, 252 F.3d at 833

(quotation omitted). But in this case, the likelihood of that repeated injury is drastically diminished

by the fact that the XCO § 648.12 does not prohibit the conduct for which Plaintiff was cited and

prosecuted. Cf. Sumpter v. Wayne County, 868 F.3d 473, 491 (6th Cir. 2017) (“The likelihood of

future injury [in the form of group strip searches] is further diminished by the fact that defendants

have changed their official policy to prohibit group strip searches.”).

           ii. Plaintiff’s Claim that the City Executed an Unlawful Policy or Custom

       Plaintiff’s complaint alleges that the City violated the First and Fourteenth Amendments

by “fail[ing] to train it[s] police officers . . . in the area of the public’s constitutional right to

freedom of speech.” (RE 1, PageID # 6.) The district court held that Plaintiff did not demonstrate

a genuine issue of material fact regarding whether the City was deliberately indifferent to

violations of its citizens’ rights. We agree.

       “A plaintiff may . . . hold a municipal entity liable under § 1983 for the entity’s own

wrongdoing.” Baynes v. Cleland, 799 F.3d 600, 620 (6th Cir. 2015). In order to hold a municipal

entity liable under § 1983, “a plaintiff must show: (1) a deprivation of a constitutional right; and

(2) that the municipal entity is responsible for that deprivation” by virtue of an “official policy or

custom.” Id. (quotation omitted). A municipality is not entitled to legislative or qualified immunity.

See Richko v. Wayne County, 819 F.3d 907, 914 (6th Cir. 2016). We begin with the second element,

whether the City is responsible for the alleged violation by virtue of an official policy or custom.



                                                    12
                                             No. 18-3939


        “To show the existence of a municipal policy or custom leading to the alleged violation, a

plaintiff can identify: (1) the municipality’s legislative enactments or official policies; (2) actions

taken by officials with final decision-making authority; (3) a policy of inadequate training or

supervision; or (4) a custom of tolerance or acquiescence of federal violations.” Baynes, 799 F.3d

at 621. “Each of these different approaches to liability requires a different analysis, [although] each

seeks to answer the same fundamental question: did the municipality cause the harm or did an

individual actor?” Morgan v. Fairfield County, 903 F.3d 553, 565 (6th Cir. 2018). For instance,

when the harm is the result of a failure to train, we apply “‘rigorous requirements of culpability

and causation’—holding a municipality liable if it has been deliberately indifferent to

constitutional rights.” Id. (quotation omitted). In contrast, when the harm is the result of “the

straightforward carrying out of a municipal policy or custom, the determination of causation is

easy.” Id. at 566.

        In this case, Plaintiff alleges only that his harm is the result of a failure to train.

Accordingly, we apply “‘rigorous requirements of culpability and causation’—holding a

municipality liable if it has been deliberately indifferent to constitutional rights.” Id. at 565.

“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Baynes, 799 F.3d at 621 (quotation

omitted). Deliberate indifference also requires that “[t]he violated right . . . be clearly established

because a municipality cannot deliberately shirk a constitutional duty unless that duty is clear.”

Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 995 (6th Cir. 2017); see also Sumpter,

868 F.3d at 490 n.8. But see Garner v. Memphis Police Dep’t, 8 F.3d 358, 366 (6th Cir. 1993).

And as discussed above, Officer Defendants did not violate Plaintiff’s clearly established

constitutional rights because, at the time that they issued Plaintiff a citation for soliciting donations



                                                   13
                                             No. 18-3939


for charity, they were enforcing a properly enacted ordinance that was not grossly and flagrantly

unconstitutional. Thus, there is no genuine dispute of material fact regarding whether the City is

responsible for the alleged violation of Plaintiff’s constitutional rights.

       Accordingly, we hold that the City is entitled to summary judgment with regard to

Plaintiff’s challenges to the constitutionality of XCO § 648.12 based on lack of standing, and is

entitled to summary judgment with regard to Plaintiff’s claim that the City executed an unlawful

policy or custom based on failure to demonstrate deliberate indifference.

                                          CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s orders.




                                                  14
