                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 08a0492n.06
                                 Filed: August 13, 2008

                                            NO. 07-3483

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ROBERT KINKUS,

               Plaintiff-Appellee,
v.                                                    ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
VILLAGE OF YORKVILLE, OHIO,                           COURT FOR THE SOUTHERN
                                                      DISTRICT OF OHIO
               Defendant,

and

GARY ANDERSON; JAMES POPP

            Defendants-Appellants.
__________________________________/

BEFORE: SUHRHEINRICH, CLAY, and COOK, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Defendants James Popp and Gary Anderson appeal

from the district court’s denial of qualified immunity in this § 1983 action brought by Robert Kinkus.

The Village of Yorkville, Ohio also appeals the district court’s grant of summary judgment for

Kinkus on his municipal liability claim. For the reasons that follow, we reverse, and dismiss

Kinkus’s constitutional claims.

                                       I. BACKGROUND

                                              A. Facts

         Yorkville is a village in the Ohio Valley with a population of about 1,200 people. At the

time of the relevant events in this case, Plaintiff Robert Kinkus (“Kinkus”) was a member of the
Yorkville Village Council and the assistant fire chief for the Yorkville Fire Department.

       Kinkus was an outspoken critic of Defendant Gary Anderson (“Anderson”), Yorkville’s chief

of police, and had publicly criticized Anderson at council meetings. In particular, Anderson

criticized the Yorkville Police Department’s arrest and alleged assault of three young men, one of

whom was Kinkus’s grandson. Anderson was aware of Kinkus’s comments.

       The facts giving rise to the incident in question occurred on September 18, 2004, when

weather conditions caused a flood in Yorkville. Many of Yorkville’s streets were closed to traffic

due to rising floodwaters, including Fayette Street, on which Kinkus’s residence was located. On

that day Defendant James Popp (“Popp”), a Yorkville police officer, and Yorkville fireman Jim

Bailey (“Bailey”) agreed to temporarily remove some barricades blocking Fayette Street, so that a

Yorkville resident could move her vehicle from her home. After they moved the barricades, Popp

and Bailey observed a white jeep, contrary to the barricades, park in the middle of Fayette street

directly in front of Kinkus’s residence. They decided to walk toward the jeep to determine why it

was blocking the street, and encountered Kinkus as they came near the jeep.

       Kinkus claims Popp first asked how long the jeep was going to be parked in the middle of

the street. Kinkus replied that the jeep would remain parked there “[u]ntil the freaking water goes

down.” Kinkus told Bailey that his daughter stopped at the firehouse to request help during the

flood, and was told “nobody could help because they were busy.” He then said:

        I’ve been here for seven or eight hours, the fire truck has been running up and down
       the street, doing nothing, the guys are standing in front of the city building, and I
       can’t get no help. . . . [T]he best thing for you guys to do is to get the hell back up
       town, period.

At that point, Kinkus contends that the conversation ended and Popp and Bailey departed. Kinkus



                                                -2-
admitted that he was upset about cars driving across the street, but claims that he did not use any

profanity during the course of the conversation.1 The parties dispute whether Popp requested that

Kinkus move the jeep from its parked location. There is no dispute, however, that Kinkus did not

move the jeep from the street after his conversation with Popp.

       No charges were brought against Kinkus on the day of the flood. Popp subsequently

discussed the altercation with Yorkville’s chief of police, Defendant Anderson. Anderson asked

Popp why he had not filed charges, and Popp explained that he was afraid of losing his job as a result

of Kinkus’s threats. Anderson assured Popp that his job was secure and described the procedure for

bringing charges. Popp completed a police report, to which a written statement from Bailey was

included, and signed a criminal complaint form in blank. In filling out the complaint, Popp left

blank the portion of the form specifying the particular charge. These materials were sent to Assistant

Belmont County Prosecutor William Thomas (“Prosecutor Thomas”) for his review.

       The prosecutor issued a criminal complaint against Kinkus, and filed it on October 21, 2004,

in the Belmont County Court, charging Kinkus with disorderly conduct under Ohio Rev. Code §

2917.11(A)(2) for his actions on the day of the flood. This provision of Ohio’s disorderly conduct

law provides that “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another

by . . . [m]aking unreasonable noise or an offensively coarse utterance, gesture, or display or

communicating unwarranted and grossly abusive language to any person.” Ohio Rev. Code §

2917.11(A)(2). Disorderly conduct is a “misdemeanor of the fourth degree” when “committed in




       1
         Kinkus’s contention that he did not use profanity is contradicted by the factual findings
of the trial court judge at Kinkus’s state court trial for disorderly conduct. The judge found that
Kinkus did use profanity during the course of the verbal exchange.

                                                 -3-
the presence of any law enforcement officer.” Ohio Rev. Code § 2917.11(E)(2), (E)(3)(c).2 Kinkus

was presented with a criminal summons, and was not arrested or jailed as a result of the criminal

complaint.3

       The case proceeded to a bench trial in the Northern Division County Court of Belmont

County, Ohio, and Kinkus was acquitted of the disorderly conduct charge. In its decision dismissing

the case, the court found that on the day of the flood, Kinkus was acting in his private capacity–rather

than official capacity–as an assistant fire chief and Yorkville councilperson. The court further found

that Kinkus “parked on the road, used vulgarity addressed to [Popp] who was simply trying to help

the situation, questioned [Popp] if he had a ‘f___ing’ problem, advised [Popp] that this was “my god

damn street,” and admitted that his actions were to protect his own home and not necessarily the

community itself or at large.” The court found, however, that because Kinkus’s words did not

constitute “fighting words,” the court could “not find the evidence sufficient in this case beyond a

reasonable doubt that [Kinkus] has committed a criminal act.”

                                       B. Procedural History

       On October 11, 2005, Kinkus filed suit under 42 U.S.C. § 1983 against Popp, Anderson, and

Yorkville. Kinkus’s complaint raised claims of Fourth Amendment malicious prosecution against

Popp, First Amendment retaliatory prosecution against Popp and Anderson, and a municipal liability




       2
         A fourth-degree misdemeanor carries a potential jail term of up to thirty days and a fine
of up to $250.00. Ohio Rev. Code §§ 2929.24(A)(4); 2929.28(A)(2)(a)(iv).
       3
         Because the disorderly conduct charge was a misdemeanor, a grand jury was not required
to pass judgment on whether there was probable cause to charge. See City of Cleveland Heights
v. Perryman, 457 N.E.2d 926, 930 (Ohio Ct. App. 1983) (“[A] misdemeanor complaint can be
issued by a prosecutor or a law enforcement officer without grand jury involvement.”).

                                                  -4-
claim against Yorkville.4

       On January 10, 2006, Kinkus moved for partial summary judgment against Popp on his First

Amendment retaliation claim and Fourth Amendment malicious prosecution claim. The district

court granted the motion, finding that: (1) Popp filed a disorderly conduct charge against Kinkus

without probable cause; (2) Prosecutor Thomas’s independent decision to prosecute Kinkus was not

conclusive evidence of probable cause; and (3) Kinkus’s statements toward Popp on the day of the

flood were protected by the First Amendment because they did not rise to the level of “fighting

words.” Kinkus v. Village of Yorkville, 453 F. Supp. 2d 1009 (S.D. Ohio 2006). The district court

did not, however, resolve the issue of whether Popp and Anderson acted with retaliatory intent when

they caused Kinkus to be prosecuted. The Defendants’ motion for reconsideration was denied.

Kinkus v. Village of Yorkville, No. C2-05-930, 2007 WL 539535 (S.D. Ohio Feb. 15, 2007).

       Kinkus moved for summary judgment against Popp and Anderson on his retaliation claim

and against Yorkville on the municipal liability claim. Popp and Anderson moved for summary

judgment, arguing that they were entitled to qualified immunity, and Yorkville moved for summary

judgment on the municipal liability claim.

       On March 13, 2007, the district court: (1) denied Popp’s and Anderson’s motions for

qualified immunity on the retaliation claims; (2) granted summary judgment for Kinkus on the

retaliation claim against Anderson; (3) denied Kinkus summary judgment on his retaliation claim

against Popp; (4) denied Yorkville’s motion for summary judgment on the municipal liability claim;



       4
        Kinkus also alleged that the acts of the Defendants “constituted an unlawful civil
conspiracy to violate [his] rights.” The district court docket indicates that on March 16, 2007,
Kinkus moved for the dismissal of his civil conspiracy claim without prejudice. The parties have
not addressed this claim on appeal.

                                                -5-
and (5) granted summary judgment for Kinkus on the municipal liability claim. Kinkus v. Village

of Yorkville, 476 F. Supp. 2d 829 (S.D. Ohio 2007).

                                           II. ANALYSIS

        On appeal, Popp and Anderson argue that the district court erred in denying them qualified

immunity, and in granting Kinkus summary judgment on his municipal liability claim.

        We review a district court’s denial of qualified immunity de novo. Gregory v. City of

Louisville, 444 F.3d 725, 742 (6th Cir. 2005). We analyze claims of qualified immunity using a

three-part test, which requires us to determine: (1) whether a constitutional right was violated; (2)

whether that right was clearly established and one of which a reasonable person would have known;

and (3) whether the official’s action was objectively unreasonable under the circumstances. Williams

v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc). Summary judgment is granted when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

              A. Fourth Amendment Malicious Prosecution Claim against Popp

        Popp argues he should have been granted qualified immunity on the malicious prosecution

claim because there was no Fourth Amendment violation. We agree, because Popp did not make

the decision to charge Kinkus, and there is no proof in the record that Kinkus presented false

information to the prosecutor.

        This Court has held that a police officer cannot be liable for Fourth Amendment malicious

prosecution when he did not make the decision to bring charges, as long as the information he

submitted to the prosecutor is truthful. See Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th


                                                   -6-
Cir. 2002) (holding that a police officer “cannot be held liable for malicious prosecution when he did

not make the decision to prosecute [the plaintiff]”); see also McKinley v. City of Mansfield, 404 F.3d

418, 444 (6th Cir. 2005) (“Skousen, in which the plaintiff alleged that a police officer had falsely

accused her, clearly forecloses a malicious prosecution claim based solely on officers’ turning over

evidence to the prosecuting authorities.”).

        Popp had no role in choosing to prosecute Kinkus. Prior to Prosecutor Thomas’s charging

decision, Popp’s actions consisted only of completing a police report, signing a blank criminal

complaint form that did not recommend any particular charge, and soliciting a written report from

Bailey. These documents were ultimately forwarded to Prosecutor Thomas for his discretionary

review of the evidence and charging discretion. No evidence suggests Popp ever consulted with or

pressured Prosecutor Thomas to file charges.5

        Moreover, Popp’s police report did not contain false information. The police report stated that

Kinkus yelled and directed vulgarities at Popp and Bailey as they sought to inquire as to why the jeep

was completely blocking Fayette Street. These facts were substantiated by the factual findings of the

trial judge at Kinkus’s criminal trial, which are subject to collateral estoppel. See Fridley v. Horrighs,

291 F.3d 867, 875 (6th Cir. 2002) (providing that collateral estoppel applies when “the law of

collateral estoppel in the state in which the issue was litigated would preclude relitigation of such


        5
          The facts of Skousen are substantially similar. In Skousen, the plaintiff was charged
and acquitted of domestic assault, and later filed a § 1983 claim alleging Fourth Amendment
malicious prosecution against the investigating officer. The actions of the police officer
defendant consisted of completing a police report detailing his investigation of an alleged assault
involving the plaintiff, and then submitting the police report and a medical report to the
prosecutor’s office. Skousen, 305 F.3d at 525. We found that the plaintiff’s malicious
prosecution claim failed because she “offered no evidence . . . supporting her claim that [the
defendant] caused her to be prosecuted,” and there was “no evidence that [the defendant] made
or even was consulted with regard to the decision to prosecute [the plaintiff].” Id. at 529.

                                                   -7-
issue, and [] the issue was fully and fairly litigated in state court”). The facts surrounding the incident

were fully and fairly litigated in the state criminal proceeding, and among the witnesses who testified

were Popp, Bailey, and Kinkus. Furthermore, the facts concerning Kinkus’s speech on the day of the

flood were necessary to the state court’s determination of whether Kinkus committed disorderly

conduct. See Bentley v. Grange Mut. Cas. Ins. Co., 694 N.E.2d 526, 530 (Ohio Ct. App. 1997)

(providing that under Ohio law, collateral estoppel applies to facts that: “(1) [were] actually and

directly litigated in the prior action, (2) [were] passed upon and determined by a court of competent

jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity

with a party to the prior action”).

        Thus, Kinkus cannot contest the accuracy of Popp’s police report which served as the basis

for Prosecutor Thomas’s decision to bring the disorderly conduct charge. Since Popp supplied only

truthful information to Prosecutor Thomas, he cannot be subject to a malicious prosecution claim.

See McKinley, 404 F.3d at 444 (holding that the defendant could not be liable for malicious

prosecution where the plaintiff “present[ed] no evidence suggesting that defendants conspired with,

influenced, or even participated in, [the prosecutor]’s decision to bring charges against him”); Darrah

v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001) (dismissing the plaintiff’s contention that the

defendant police officer caused the state court to find probable cause because “based on the facts

alleged by [the plaintiff] and the information in the police report, there is no indication that [the

defendant]’s report misled the court in any way”)

        Accordingly, the district court erred in denying Popp qualified immunity on the malicious

prosecution claim and granting summary judgment for Kinkus on that claim.

      B. First Amendment Retaliatory Prosecution Claim against Popp and Anderson


                                                   -8-
         Popp and Anderson argue they should have been granted qualified immunity on the First

Amendment retaliatory prosecution claims because there was not a constitutional violation. We

agree.

         An essential element of a First Amendment retaliatory prosecution claim is retaliatory animus.

See Hartman v. Moore, 547 U.S. 250, 260 (2006) (providing that “the plaintiff in a

retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury”);

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (providing that a plaintiff must prove in a First

Amendment retaliation claim that “the adverse action was motivated at least in part as a response to

the exercise of the plaintiff's constitutional rights”).6 Here, Kinkus clearly cannot succeed in proving

the animus element as to either Popp or Anderson. As previously explained, there can be no animus

under McKinley. See McKinley, 404 F.3d at 444.

         With respect to Popp, there can be no animus because the allegations in his police report were

true, and we are collaterally estopped from reaching any different conclusion. Contrary to the district

court’s conclusion, the one-month lapse between the incident and the disorderly conduct charge does

not suggest animus. There is not a shred of evidence in the record to support the district court’s

speculation that Anderson “could have relayed to [] Popp the various disparaging comments that

[Kinkus] made regarding the Yorkville police.” Kinkus, 476 F. Supp. 2d at 838. Such speculation

does not allow Kinkus to avoid summary judgment.



         6
         To prove a First Amendment retaliation claim, a plaintiff must also demonstrate that he
was engaged in a constitutionally protected activity and that an adverse action caused him to
suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in
that activity. Bloch, 156 F.3d at 678. In a First Amendment retaliatory prosecution claim, a
plaintiff must prove “want of probable cause.” Hartman, 547 U.S. at 265; see also Barnes v.
Wright, 449 F.3d 709, 719 (6th Cir. 2006).

                                                  -9-
        As for Anderson, there is no animus because there is no evidence in the record that he ordered

or ever suggested that Popp lie in the police report. Thus, contrary to the district court’s conclusion,

it is immaterial that Anderson testified that the charges were brought against Kinkus “only in part”

because of statements he made previously regarding the Yorkville Police Department. There is no

evidence in the record that he instructed Popp to lie. And, again, a state court trial judge found that

the information Popp provided to the prosecutor was true.

        Accordingly, the district court erred in denying Popp and Anderson qualified immunity on the

retaliatory prosecution claim and granting summary judgment for Kinkus on his claim against

Anderson, because no First Amendment violation lies under Kinkus’s version of the facts. See

Saucier v. Katz, 533 U.S. 194, 201 (“If no constitutional right would have been violated were the

allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

                        C. Municipal Liability Claim against Yorkville

        Defendants request that we exercise “pendent appellate jurisdiction” to dismiss the municipal

liability issues. We do, because absent any constitutional violation, there can be no municipal

liability. See Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir. 1996).7 Furthermore, even


        7
           The dissent asserts that we cannot entertain the municipal liability claim. However,
Yorkville gave notice that it is a party to the appeal, given that Yorkville is listed as a party in the
caption of the notice of appeal. See Fed. R. App. P. 3(c)(1)(A) (providing that a party’s notice of
its intent to take the appeal is sufficient if the party is named “in the caption or body of the
notice”). Second, the notice of appeal “designate[d] the judgment . . . being appealed” under
Fed. R. App. P. 3(c)(1)(B) by referencing the district court’s March 13, 2007 final judgment. In
that decision, the district court, inter alia, granted summary judgment for Kinkus on the
municipal liability claim.

        Further, in ruling on the municipal liability claim we avoid the needless waste of judicial
resources by holding that there can be no municipal liability absent an actual constitutional
violation at the hands of either Popp or Anderson. See City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986) (“If a person has suffered no constitutional injury at the hands of [an] individual

                                                  -10-
if there had been a constitutional violation, there was no custom or policy, because, in the first place,

Prosecutor Thomas–not Anderson–made the decision to prosecute Kinkus. Yorkville cannot be held

liable under a theory of vicarious liability. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691

(1978) (holding that a municipality cannot be liable on a respondeat superior theory).

        Accordingly, the district court erred in denying Yorkville summary judgment on the municipal

liability claim and granting summary judgment for Kinkus on that claim.

                                        III. CONCLUSION

        For the reasons stated above, we REVERSE the district court’s denial of qualified

immunity to Popp on the malicious prosecution claim, REVERSE the district court’s denial of

qualified immunity to Popp and Anderson on the retaliation claims, REVERSE the district

court’s grant of summary judgment for Kinkus on his malicious prosecution claim against Popp

and his retaliatory prosecution claim against Anderson, REVERSE the district court’s grant of

summary judgment for Kinkus on Kinkus’s municipal liability claim against Yorkville, and

DISMISS Kinkus’s claims for malicious prosecution, retaliation, and municipal liability.




police officer, the fact that [municipal policy or custom] might have authorized [a constitutional
violation] is quite beside the point.”); Floyd v. City of Detroit, 518 F.3d 398, 411 (6th Cir. 2008)
(“Where a court determines that no violation of the plaintiff’s constitutional rights occurred,
obviously the governmental entity cannot be liable . . . for developing a [policy or] custom that
led to a constitutional violation.”).


                                                  -11-
       CLAY, Circuit Judge, dissenting. While I agree with the majority that there is

insufficient evidence in the record to support Plaintiff Robert Kinkus’ (“Kinkus”) Fourth

Amendment malicious prosecution claim, I do not share the majority’s view that Defendants,

James Popp (“Popp”) and Gary Anderson (“Anderson”), should have been granted qualified

immunity on Kinkus’ First Amendment retaliatory prosecution claim. I am also troubled by the

majority’s sua sponte decision to reverse the district court’s grant of summary judgment to Kinkus

on his municipal liability claim against the Village of Yorkville (the “Village”), given that we lack

jurisdiction to review this issue on appeal. Accordingly, I respectfully dissent.

                                                   I.

       We review a district court’s denial of qualified immunity de novo. Logsdon v. Hains, 492

F.3d 334, 340 (6th Cir. 2007). Qualified immunity is an affirmative defense that shields

government officials performing discretionary functions “from liability for civil damages insofar

as their conduct does not violate clearly established federal statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

accord Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). To determine whether qualified

immunity applies for particular state officials, we employ a two-step analysis. See Scott v. Harris,

127 S. Ct. 1769, 1774 (2007). First, we must consider whether, “[t]aken in the light most

favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated

a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no constitutional right

would have been violated were the allegations established, there is no necessity for further

inquiries concerning qualified immunity.” Id. However, “if a violation could be made out on a

favorable view of the parties’ submissions, the next, sequential step is to ask whether the right


                                                  -12-
was clearly established.” Id. The ultimate focus of this second inquiry is to determine whether

the official “had fair notice that her conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam); see also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 905 (6th

Cir. 2004) (requiring the plaintiff to provide “sufficient evidence to indicate that what the official

allegedly did was objectively unreasonable in light of clearly established constitutional rights”). If

the law at the time of the official’s conduct “did not clearly establish that the [official’s] conduct

would violate the Constitution, the [official] should not be subject to liability or, indeed, even the

burdens of litigation.” Brosseau, 543 U.S. at 198.

       Applying this qualified immunity framework to the facts of this case, I would find that

Popp and Anderson are not entitled to qualified immunity on Kinkus’ First Amendment

retaliatory prosecution claim. However, because there is a genuine issue of material fact

regarding whether Popp and Anderson had a retaliatory intent when filing their criminal complaint

against Kinkus, I would reverse the district court’s grant of summary judgment in favor of Kinkus

on this claim and remand the case for trial.

                                                  A.

       “The threshold inquiry a court must undertake in a qualified immunity analysis is whether

plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730,

736 (2002). Construing the facts in the light most favorable to Kinkus, I would find that he has

sufficiently alleged that Popp and Anderson violated his First Amendment rights by filing the

criminal complaint in retaliation for his vulgar comments to Popp on September 18, 2004 and his

prior criticism of the Yorkville Police Department.

       To demonstrate a retaliatory prosecution in violation of the First Amendment, a plaintiff


                                                 -13-
must establish that: (1) he or she engaged in constitutionally protected activity; (2) the defendant

brought criminal charges, for which there was an absence of probable cause, against the plaintiff;

and (3) the defendant’s criminal prosecution of the plaintiff was motivated, at least in part, as a

response to the plaintiff’s exercise of his or her constitutional rights. See Hartman v. Moore, 547

U.S. 250, 256 (2006); Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807,

821 (6th Cir. 2007); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); Bloch v.

Ribar, 156 F.3d 673, 678 (6th Cir. 1998). When viewed in the light most favorable to Kinkus, the

parties’ submissions establish each of these elements.

       First, Kinkus’ vulgar comments to Popp on September 18, 2004 and his prior criticisms of

the Yorkville Police Department clearly constitute protected speech under the First Amendment.

It is well-established that “the First Amendment protects a significant amount of verbal criticism

and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987); see

also id. at 462-63 (“The freedom of individuals verbally to oppose or challenge police action

without thereby risking arrest is one of the principal characteristics by which we distinguish a free

nation from a police state.”); McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th Cir. 2001)

(“Since the day the ink dried on the Bill of Rights, ‘[t]he right of an American citizen to criticize

public officials and policies . . . is central to the meaning of the First Amendment.” (quoting

Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975))). This criticism need not be

polite and is protected even if it employs rude and vulgar language. See Cohen v. California, 403

U.S. 15, 25-26 (1971) (finding that a state cannot criminalize the use of the expression “fuck the

draft”); Barnes v. Wright, 449 F.3d 709, 718 (6th Cir. 2006) (finding that the plaintiff’s use of

“strong” language, including words such as “damn”, when confronted by police officers, was


                                                 -14-
constitutionally protected speech); Greene v. Barber, 310 F.3d 889, 895-96 (6th Cir. 2002)

(finding that the plaintiff’s characterization of police officer as an “asshole” and “stupid” was

constitutionally protected speech); McCurdy, 240 F.3d at 520 (finding it “well-established that

[the plaintiff had a constitutional right to challenge verbally” a police officer’s authority by telling

the officer that he didn’t have to do the “shit” that the officer was ordering him to do); Sandal v.

Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (finding that the plaintiff’s shouting of “fuck you” at

abortion protestors was constitutionally protected speech).

       Second, the criminal complaint filed against Kinkus lacked any vestige of probable cause.

Probable cause for filing a criminal complaint only exists “if the facts and circumstances known

to the officer warrant a prudent man in believing that the offense has been committed.” Henry v.

United States, 361 U.S. 98, 102 (1959); accord Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v.

United States, 338 U.S. 160, 175-76 (1949); Logsdon, 492 F.3d at 341. The criminal complaint in

this case charged Kinkus with violating Ohio Rev. Code § 2917.11(A)(2), by claiming that

Kinkus:

       Did recklessly cause inconvenience, annoyance, or alarm to another by making
       unreasonable noise or an offensively coarse utterance, gesture, or display or
       communicating unwarranted and grossly abusive language to any person.

J.A. at 633. The Ohio Supreme Court, however, has clarified that Ohio Rev. Code §

2917.11(A)(2) only prohibits the use of “fighting words,” i.e., those which “are likely, by their

very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach

of the peace.” State v. Hoffman, 387 N.E.2d 239, 242 (Ohio 1979); accord State v. Dotson, 727

N.E.2d 957, 302-03 (Ohio Ct. App. 1999); see also Chaplinsky v. New Hampshire, 315 U.S. 568,

571-72 (1942) (establishing the now rather limited “fighting words” exception to the First


                                                  -15-
Amendment’s broad protection of speech). No reasonable person considering the facts known to

Popp and Anderson at the time they filed the criminal complaint would conclude that Kinkus’

abusive and vulgar comments constituted “fighting words.” Thus, as the state trial court

accurately concluded, there was no probable case to support the filing of the disorderly conduct

complaint against Kinkus.

       Finally, unlike the majority,8 I find that the parties’ pleadings reasonably suggest that Popp

and Anderson filed the criminal complaint, at least in part, in retaliation for Kinkus’

constitutionally protected vulgar comments on September 18, 2004 and as possible retribution for

his prior criticism of the Yorkville Police Department. Indeed, the record reflects that both Popp

and Anderson were aware of and not happy about Kinkus’ prior criticisms of the police

department and about Kinkus’ disrespectful comments during the flooding emergency on

September 18, 2004. Moreover, the criminal complaint filed against Kinkus focused exclusively

upon Kinkus’ vulgar speech as the basis for the disorderly conduct charge. See J.A. at 633

(accusing Kinkus of “recklessly caus[ing] inconvenience, annoyance, or alarm to another by

making unreasonable noise or an offensively coarse utterance, gesture, or display or

communicating unwarranted and grossly abusive language to any person” (emphasis added)). In

light of this history between the parties and the criminal complaint’s targeting of Kinkus’


       8
         The majority’s analysis of this issue is misguided, particularly with respect to the
majority’s conclusion that there was no retaliatory animus on the part of Popp and Anderson
because the allegations in the criminal complaint are true. See Majority Op. at 10. Whether the
charges in the complaint are true is irrelevant to whether the complaint was filed for a retaliatory
purpose. Indeed, accepting the truth of the charges in the complaint only confirms that Popp and
Anderson were likely filing the complaint in retaliation for Kinkus’ vulgar comments on the
night of the flooding. That the complaint targets Kinkus’ offensive, but constitutionally
protected, speech does not undermine, but rather affirms Kinkus’ contention that the filing of the
complaint was motivated by his exercise of First Amendment rights.

                                                -16-
protected speech, I would find that Kinkus has alleged facts, which, if true, demonstrate a

violation of the First Amendment.

                                                  B.

       The second question in the qualified immunity analysis is whether the rights allegedly

violated were clearly established at the time of Popp and Anderson’s conduct. See Saucier, 533

U.S. at 201. “This inquiry, it is vital to note, must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Id.; accord Scott, 127 S. Ct. at 1774; see also

Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[T]he right allegedly violated must be defined at the

appropriate level of specificity before a court can determine if it was clearly established.”). If the

area of law “is one in which the result depends very much on the facts of each case,” it is likely

that the right, considered in light of the specific context, will not be deemed “clearly established.”

Brosseau, 543 U.S. at 201. In other words, for a right to be clearly established “[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); accord Feathers v.

Aey, 319 F.3d 843, 848 (6th Cir. 2003). “This is not to say that an official action is protected by

qualified immunity unless the very action in question has previously been held unlawful, but it is

to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483

U.S. at 640.

       In the instant case, I would find that the First Amendment rights allegedly violated by

Popp and Anderson were clearly established at the time of their conduct. The First Amendment

freedom to criticize police officials without fear of prosecution had been firmly established for

several years prior to the filing of the criminal complaint against Kinkus in 2004. See, e.g., Hill,


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482 U.S. at 461 (“[T]he First Amendment protects a significant amount of verbal criticism and

challenge directed at police officers.”); Terminello v. City of Chicago, 337 U.S. 1, 4 (1949) (“[A]

function of free speech under our system of government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition of unrest, creates dissatisfaction with

conditions as they are, or even stirs people to anger. . . . That is why freedom of speech, though

not absolute, is nevertheless protected against censorship or punishment, unless it is shown likely

to produce a clear and present danger of a serious substantive evil that rises far above public

inconvenience, annoyance, or unrest.”); McCurdy, 240 F.3d at 520 (“There can be no doubt that

the freedom to express disagreement with state action, without fear of reprisal based on the

expression, is unequivocally among the protections provided by the First Amendment.”); Barrett

v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (“[I]t is well established that a public official’s

retaliation against an individual exercising his or her First Amendment rights is a violation of §

1983.”). Any reasonable police officer should have known that charging Kinkus with disorderly

conduct in retaliation for his critical speech, as Popp and Anderson did in this case, would violate

Kinkus’ First Amendment rights. Accordingly, I would hold that Popp and Anderson are not

entitled to qualified immunity with respect to Kinkus’ retaliatory prosecution claim.

                                                  C.

       While I would reject Popp and Anderson’s requests for qualified immunity, I would

nevertheless reverse the district court’s ultimate grant of summary judgment in favor of Kinkus on

his retaliatory prosecution claim. A grant of summary judgment is proper only “if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.


                                                 -18-
R. Civ. P. 56(c). In the instant case, however, there is a disputed issue of material fact regarding

Kinkus’ retaliatory prosecution claim, namely Popp’s and Anderson’s intent in filing the

disorderly conduct complaint. Kinkus alleges that this criminal complaint was retaliation for his

criticism of the police. Popp and Anderson claim that the complaint was a legitimate response to

the disorderly behavior of Kinkus during the flooding emergency. As disputes “involving proof a

defendant’s intent seldom lend themselves to summary disposition,” Center for Bio-Ethical

Reform, 477 F.3d at 823 (quoting Bloch, 156 F.3d at 682), I would reverse the district court’s

grant of summary judgment to Kinkus on this claim and remand the case for trial so that a jury

could resolve this disputed issue of material fact.

                                                  II.

       In addition to my concerns about the majority’s qualified immunity analysis, I am

disturbed by the majority’s decision to sua sponte pronounce a holding on an issue—whether the

Village should be entitled to summary judgment on Kinkus’ municipal liability claim—that was

not raised in Popp and Anderson’s notice of appeal nor properly asserted by them in their briefs.

       Rule 3(c) of the Federal Rules of Appellate Procedure provides that a party’s “notice of

appeal must . . . designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.

3(c)(1)(B). This rule, whose requirements are “jurisdictional in nature,” Smith v. Barry, 502 U.S.

244, 248 (1992); accord Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-315 (1988),

“limit[s] this Court’s appellate review to issues designated in the notice of appeal.” United States

v. Glover, 242 F.3d 333, 335 (6th Cir. 2001). In particular, “[i]f an appellant . . . chooses to

designate specific determinations in his notice of appeal—rather than simply appealing from the

entire judgment—only the specified issues may be raised on appeal.” McLaurin v. Fischer, 768


                                                 -19-
F.2d 98, 102 (6th Cir. 1985); accord United States v. Univ. Mgmt. Servs., Inc., 191 F.3d 750, 756

(6th Cir. 1999) (Suhrheinrich, J.); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir. 1992)

(Suhrheinrich, J.) (“Under Rule 3(c)[,] where a notice of appeal specifies a particular order, only

the specified issues related to that order may be raised on appeal.”).

       In the instant case, Popp and Anderson’s notice of appeal states:

       Notice is hereby given that Defendants James Popp (“Popp”) and Gary Anderson
       (“Anderson”) hereby appeal to the United States Court of Appeals for the Sixth
       Circuit from this Court’s final judgments 1) denying Popp and Anderson’s motion
       for summary judgment on the basis of qualified immunity entered in this action on
       [March 13, 2007] and 2) granting of Plaintiff’s summary judgment on his First and
       Fourth Amendment claims, entered in this action on [September 28, 2006] and
       which became final when this Court denied Popp and Anderson’s motion for
       summary judgment on the basis of qualified immunity on March 13, 2007 and was
       incorporated in the judgment entered on March 13, 2007.

J.A. at 55. While the notice does list the Village as a party to the appeal in its caption, it does not

indicate that Defendants are appealing the district court’s ruling regarding the Village’s municipal

liability. Rather, this notice clearly limits the appeal to the district court’s denial of Popp and

Anderson’s motions for qualified immunity and its grant of summary judgment to Kinkus on his

First and Fourth Amendment claims against them. Consequently, under our precedent, the issue

of the Village’s municipal liability is not properly within our appellate jurisdiction for this case.

       Even if we could construe the notice of appeal as permitting us to consider the issue of the

Village’s municipal liability on appeal, I would still find the majority’s discussion of it to be

improper because of Popp and Anderson’s failure to properly raise this issue in their arguments on

appeal. This issue of the Village’s municipal liability was not raised in Popp and Anderson’s

initial brief, but rather appeared for the first time in their reply to Kinkus’ response brief. Kinkus

was never afforded an opportunity to defend the district court’s decision on this point and the


                                                  -20-
issue was never discussed at oral argument. Under our longstanding precedent, such an

issue—even if we had jurisdiction to consider it—should have been deemed waived. See, e.g.,

Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (collecting cases); Novosteel SA

v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a

reply brief does not suffice; reply briefs reply to arguments made in the response brief—they do

not provide the moving party with a new opportunity to present yet another issue for the court’s

consideration. Further the non-moving party ordinarily has no right to respond to the reply brief,

at least not until oral argument. As a matter of litigation fairness and procedure, then, we must

treat [such issues] as waived.”). Moreover, it is not clear that Popp or Anderson even have

standing to raise such an issue as it concerns the liability of the Village, as opposed to their own

individual liability, for the alleged infringement upon Kinkus’ constitutional rights. Accordingly,

I would not express any opinion with respect to this issue and would leave intact the district

court’s summary judgment decision regarding the Village’s municipal liability.

                                                 III.

       For the foregoing reasons, I respectfully dissent.




                                                 -21-
