                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0879n.06

                                            No. 13-3543                                    FILED
                                                                                     Oct 08, 2013
                           UNITED STATES COURT OF APPEALS
                                                                                DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


TANEA WILSON, next Friend for Minor, T.W.,                  )
                                                            )
        Plaintiff-Appellee,                                 )
                                                            )
v.                                                          )   ON APPEAL FROM THE UNITED
                                                            )   STATES DISTRICT COURT FOR
KEVIN MARTIN, in his official capacity as Chief of          )   THE NORTHERN DISTRICT OF
Police; CHARLES H. GODFREY, in his individual               )   OHIO
and official capacities as City of Lima Police Officer;     )
CITY OF LIMA, Through the City of Lima Police               )
Department,                                                 )
                                                            )
        Defendants,                                         )
                                                            )
NATHAN GARLOCK, in his individual and official              )
capacities as City of Lima Police Officer; MATTHEW          )
WOODWORTH, in his individual and official                   )
capacities as City of Lima Police Officer; SCOTT            )
BOETTIGER, in his individual and official capacities        )
as City of Lima Police Officer,                             )
                                                            )
Defendants-Appellants.                                      )



        Before: COLE, KETHLEDGE, and STRANCH, Circuit Judges.

        KETHLEDGE, Circuit Judge. City of Lima police officers arrested and detained T.W., an

11 year-old girl, after she extended both middle fingers toward two police officers. She later brought

this lawsuit under 42 U.S.C. § 1983, claiming violations of her rights under the First and Fourth

Amendments. The officers moved to dismiss T.W.’s claims on qualified-immunity grounds. The

district court granted the motion as to some claims, but denied it as to T.W.’s claims for false arrest,
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T.W. v. Martin and Garlock, et al.

false imprisonment, unlawful seizure and detention, and retaliation. The officers now challenge the

denial. We reject their arguments and affirm.

                                                 I.

        In reviewing the district court’s decision whether to dismiss T.W.’s claims under Rule

12(b)(6), we take her allegations in the complaint as true. See Kottmyer v. Maas, 436 F.3d 684, 688

(6th Cir. 2006).

        By way of background, in January 2008 a Lima police officer stormed the residence of

T.W.’s mother, Tarika Wilson, in search of a criminal suspect. During the incident, T.W.’s mother

was unarmed and huddled with her five children, including T.W. Apparently by accident       perhaps

in a crossfire   the officer shot T.W.’s mother and 14 month-old brother. T.W.’s mother died; her

brother survived. In response, T.W.’s family filed a wrongful-death lawsuit against the officers

involved.

        About three years later, Officer Nathan Garlock responded to a dispatch about a street fight

in Lima. Upon arriving he saw a group of youths, including T.W., walking in the street. The youths

were no longer fighting. T.W. broke away from them to walk home. As she did so, she extended

both of her middle fingers toward Officer Garlock’s car. In response, Garlock yelled at T.W.:

“Come here. Come here right now or you’re gonna end up being handcuffed.” T.W. told Garlock

that her grandmother had forbidden her to speak to the police. He replied, “I don’t care what your

grandma says, come here.” T.W. continued to walk home. Garlock pursued T.W. and yelled again,

“Hey, when I tell you to stop, you stop!” Garlock then grabbed T.W. from behind, pulled her hands

behind her, and pushed her forward to place her under arrest. Officer Matthew Woodworth joined

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and helped Garlock to handcuff T.W. The two officers, both much larger than T.W., pulled her to

the police cruiser.

       Garlock and Woodworth then drove T.W. to the police station. There, Garlock told Officer

Scott Boettiger that T.W. was “Tarika Wilson’s daughter.” At Boettiger’s direction, Garlock charged

T.W. with persistent disorderly conduct.

       This lawsuit and appeal followed.

                                                  II.

        We review de novo the district court’s denial of qualified immunity. Hayden v. Green, 640

F.3d 150, 153 (6th Cir. 2011). Qualified immunity shields government officials from liability for

civil damages. “Determinations of qualified immunity require us to answer two questions: first,

whether the officer violated a constitutional right; and second, whether that right was clearly

established in light of the specific context of the case.” Id.

                                                  A.

       We first consider T.W.’s claims based upon the Fourth Amendment. A citizen’s right to be

free from arrest without probable cause is clearly established. Leonard v. Robinson, 477 F.3d 347,

355 (6th Cir. 2007). T.W. alleges that Officers Garlock, Woodworth, and Boettiger violated that

right when they arrested and detained her without probable cause for doing so. The officers respond

that T.W. should have stopped walking away when Garlock ordered her to, and that her failure to

do so “resulted in probable cause sufficient to justify her arrest,” Def. Br. at 6.

       Probable cause is “reasonable grounds for belief” that a crime has been committed. United

States v. Padro, 52 F.3d 120, 122 23 (6th Cir. 1995). The officers say they had probable cause to

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think that T.W. committed three offense here. The first two are disorderly conduct in violation of

O.R.C. § 2917.11(A)(2) and (A)(3). But even the officers concede that “profanity alone is

insufficient to establish criminal behavior,” Def. Br. at 14; instead, to violate either of these sections,

a person must use profanity recklessly, “in a situation where violence is a likely result.” Id. It is

true, as the officers point out, that an obscene gesture towards a police officer may amount to

disorderly conduct, “depending on the circumstances.” State v. Wood, 112 Ohio App. 3d 621, 628

(1996). But the circumstances here, as alleged in the complaint at least, are that an 11 year-old girl

raised her middle fingers toward an adult male police officer. Those circumstances did not create

a situation where violence was a likely result. (And if violence had resulted, the officers would be

facing more claims than they are now.) T.W.’s gesture was crude, not criminal; and the officers were

patently without probable cause to arrest her for it.

        The third offense for which the officers say there was probable cause was “obstructing

official business” in violation of O.R.C. § 2921.21(A). The violation here, the officers say, was

T.W.’s failure to stop walking away when Garlock told her to stop. Suffice it to say that           again

based on the allegations in the complaint      the officers had no legal basis to order T.W. to stop in

the first place. Thus, at this stage of the litigation, the officers are not entitled to qualified immunity

as to T.W.’s claims for false arrest, false imprisonment, and unlawful seizure and detention.

                                                    B.

        The officers also argue that they are entitled to qualified immunity as to T.W.’s claim that

they arrested her in retaliation for her family’s wrongful-death lawsuit concerning her mother’s

death. To state a § 1983 claim for retaliation, a plaintiff must plead that “(1) the plaintiff engaged

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in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff that would

deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse

action was motivated at least in part by the plaintiff’s protected conduct.” Fritz v. Charter Twp. of

Comstock, 592 F.3d 718, 723 (6th Cir. 2010) (internal quotation marks omitted). Only the third

prong is at issue here: the officers say that they arrested T.W. not in retaliation for the wrongful-

death suit, but because they had probable cause to arrest her. As explained above, however, T.W.’s

complaint alleges facts showing otherwise. Hence the district court was correct to deny qualified

immunity as to this claim as well.

        Finally, for the reasons stated by the district court, we agree that Officer Boettiger is not

entitled to qualified immunity at this stage of the litigation.

        The district court’s judgment is affirmed.




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