                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0154n.06

                                          No. 17-3571


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

VANESSA ENOCH; AVERY CORBIN,                            )
                                                                                   FILED
                                                                             Mar 23, 2018
                                                        )
       Plaintiffs-Appellees,                            )                DEBORAH S. HUNT, Clerk
                                                        )
v.                                                      )
                                                        )       ON APPEAL FROM THE
DEPUTY SHERIFF HOGAN; DEPUTY SHERIFF                    )       UNITED STATES DISTRICT
NOBLES, Badge No. 1266,                                 )       COURT FOR THE SOUTHERN
                                                        )       DISTRICT OF OHIO
       Defendants-Appellants,                           )
                                                        )                  OPINION
HAMILTON COUNTY SHERIFF’S OFFICE; JIM                   )
NEIL, County Sheriff,                                   )
                                                        )
       Defendants.                                      )



       BEFORE:        GILMAN, SUTTON, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. This interlocutory appeal of an order denying

qualified immunity to Deputy Sheriffs Hogan and Nobles arises from the denial of their Rule

12(c) motion for judgment on the pleadings. The complaint filed by Vanessa Enoch and Avery

Corbin alleges that they were taking photographs and making video recordings at an impromptu

press conference in a courthouse hallway when Defendants violated their clearly established

constitutional rights by stopping, searching, and arresting them based on their race. Accepting as

true the factual allegations in their complaint, Enoch and Corbin have plausibly alleged

violations of their clearly established First and Fourth Amendment rights.          We therefore
No. 17-3571, Enoch v. Hogan


AFFIRM the decision of the district court to deny qualified immunity to the Deputies at this

stage of the case.

                                  I.       BACKGROUND

       The following facts are alleged in the operative complaint, Plaintiffs’ First Amended

Complaint. In June 2014, Vanessa Enoch and Avery Corbin attended a pretrial hearing at the

Hamilton County Courthouse in the case of State v. Hunter, the criminal prosecution of a local

judge. Enoch was researching and reporting on the case for a small local paper; Corbin had a

personal interest in the proceedings because he had previously worked with Judge Hunter as a

bailiff. The Complaint does not allege that the Plaintiffs knew one another or that they interacted

during or after the hearing. The hearing also attracted other members of the press and public.

       After the hearing ended, Enoch and Corbin allege that they left the courtroom and went

into the hallway, where approximately twenty people gathered to record “an ‘impromptu’ press

conference.” They joined this group, using their mobile devices to “take[e] snapshots and

otherwise record[] Judge Tracie Hunter, and her lawyer, and events occurring in the public

hallway.”

       According to the Complaint, the Deputy Sheriffs Hogan and Nobles singled Enoch and

Corbin out from the group in the hallway “in substantial part” because of their race. When

Enoch left to locate a restroom, one or both of the Deputies stopped her, demanded the password

for her iPad under threat of arrest, searched it, and shortly thereafter forcibly handcuffed and

arrested her.   The Deputies also ordered Corbin to cease recording under threat of arrest,

searched his iPad, and forcibly handcuffed and arrested him. Of the entire group in the hallway,

only Enoch and Corbin, both of whom are black, were treated this way. The Complaint declares

that “[n]one of the estimated 16–18 white individuals in the hallway using their news cameras,




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cell phones or other electronic recording devices were stopped, detained, searched, handcuffed

and arrested by Defendants nor did any of them have their mobile devices searched or seized.”

       The Complaint alleges that, as the Deputies took Enoch to the sheriff’s office, they told

her “that they did not know at that time” why she was being arrested and that “they would figure

it out when they got downstairs to the office.” Enoch and Corbin were detained in the sheriff’s

office for almost ninety minutes, uncomfortably handcuffed in a manner that caused significant

pain. Enoch’s repeated requests to use a restroom were denied.

       According to the Complaint, Deputies Hogan and Nobles then charged Enoch with

disorderly conduct under Ohio Rev. Code § 2917.11, stating in the citation that she yelled at a

deputy while court was in session and that she refused to identify herself when asked.

Approximately five days later, Enoch was served with a second citation, in which the Deputies

charged her with failing to disclose information under Ohio Rev. Code § 2921.29, on the basis

that she had refused to identify herself. The Deputies also charged Corbin with disorderly

conduct under § 2917.11. Enoch and Corbin aver that the allegations in all three citations were

false. All charges were subsequently dismissed. Enoch alleges that she lost her job as a result of

being arrested and charged.

       Enoch and Corbin filed this § 1983 suit against Deputies Hogan and Nobles, the

Hamilton County Sheriff’s Office, and County Sheriff Jim Neil, along with four other employees

of the Sheriff’s Office who have since been dismissed from the case. The Complaint alleges

violations of the Plaintiffs’ constitutional rights under the First and Fourth Amendments, as

incorporated through the Fourteenth Amendment, as well as of state tort law. The Defendants

filed a motion for judgment on the pleadings under Rule 12(c), claiming qualified immunity

among other defenses. The district court concluded that the Defendants were not entitled to




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No. 17-3571, Enoch v. Hogan


qualified immunity as a matter of law at this stage of the case. Deputy Sheriffs Hogan and

Nobles appealed.

                                     II.       ANALYSIS

       A.      Jurisdiction

       Although appellate courts may generally review only “final decisions” of district courts,

28 U.S.C. § 1291, we recognize an exception to this rule for orders denying qualified immunity.

Though such denials do not conclude proceedings in the district court, they are nonetheless

immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “[T]his exception is a

narrow one. A denial of a claim of qualified immunity is immediately appealable only if the

appeal is premised not on a factual dispute, but rather on ‘neat abstract issues of law.’” Phillips

v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008) (quoting Johnson v. Jones, 515 U.S. 304,

317 (1995)). Such an abstract legal issue is generally presented when the parties’ only dispute

on appeal is “whether the legal norms allegedly violated by the defendant were clearly

established at the time of the challenged actions.” Mitchell, 472 U.S. at 528.

       As a preliminary matter, Enoch and Corbin argue that we lack jurisdiction over this

appeal because the Deputies’ arguments turn on disputed facts. See Johnson, 515 U.S. at 319–

20; McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006). They rely on qualified

immunity cases arising at the summary judgment stage. “Although an officer’s entitlement to

qualified immunity is a threshold question to be resolved at the earliest possible point, that point

is usually summary judgment and not dismissal under Rule 12.” Courtright v. City of Battle

Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quoting Wesley v. Campbell, 779 F.3d 421, 433–34

(6th Cir. 2015)). In this case, the Deputies raised qualified immunity in their motion for

judgment on the pleadings under Rule 12(c).




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No. 17-3571, Enoch v. Hogan


       We review a judgment on the pleadings “using the same de novo standard of review

employed for a motion to dismiss under Rule 12(b)(6).” Tucker v. Middleburg-Legacy Place,

L.L.C., 539 F.3d 545, 549 (6th Cir. 2008). In conducting our review, we accept the opposing

party’s factual allegations and draw all reasonable inferences in their favor, “[b]ut we ‘need not

accept as true legal conclusions or unwarranted factual inferences.’” JPMorgan Chase Bank,

N.A. v. Winget, 510 F.3d 577, 581–82 (6th Cir. 2007) (quoting Mixon v. Ohio, 193 F.3d 389, 400

(6th Cir. 1999)); see also Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th

Cir. 2011) (synthesizing the requirements laid out in Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), regarding survival of a motion to dismiss

under Rule 12(b)(6)). Judgment on the pleadings should be granted only if, subject to these

conditions, “no material issue of fact exists and the party making the motion is entitled to

judgment as a matter of law.” Tucker, 539 F.3d at 549 (quoting JPMorgan Chase Bank,

510 F.3d at 582).

       Because “there cannot be any disputed questions of fact” in our review of this Rule 12(c)

motion and, at this stage, “our review solely involves applying principles of law to a given and

assumed set of facts,” this case falls outside the parameters of Johnson, and we may properly

exercise jurisdiction. Barnes v. Winchell, 105 F.3d 1111, 1114 (6th Cir. 1997). We therefore

turn to the substance of Defendants’ qualified immunity arguments.

       B.      Qualified Immunity

       “Qualified immunity protects government officials performing discretionary functions

unless their conduct violates a clearly established statutory or constitutional right of which a

reasonable person in the official’s position would have known.” Boler v. Earley, 865 F.3d 391,

416 (6th Cir. 2017) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).

To defeat a claim of qualified immunity, the plaintiff must show (1) that the official’s conduct


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No. 17-3571, Enoch v. Hogan


violated a constitutional right, and (2) that the right was clearly established at the time of the

violation. Id. Combining the test for qualified immunity with the standard for a 12(c) motion,

the Deputies are entitled to qualified immunity if, accepting all the factual allegations in the

Complaint as true and drawing all reasonable inferences in Plaintiffs’ favor, Enoch and Corbin

have not plausibly alleged that the Deputies’ actions violated their clearly established First and

Fourth Amendment rights.

        The factual allegations in the Complaint boil down to this: Plaintiffs Enoch and Corbin,

both of whom are black, joined a sizable group of people recording newsworthy events in a

courthouse hallway.     No rule forbade them from doing so.        Deputies Hogan and Nobles,

“apparently motivated in substantial part by race,” singled out Enoch and Corbin, searched their

belongings, and forcibly arrested them. None of the white individuals who were recording the

same events in the same group were treated similarly. During transit to the County Sheriff’s

Office, the Deputies admitted to Enoch that they “did not know” why she was being arrested.

They then issued citations to both Enoch and Corbin, falsely alleging violations of two Ohio

laws.

               1.      Fourth Amendment

        We consider first whether Enoch and Corbin have plausibly alleged a violation of their

clearly established Fourth Amendment rights with regard to their claims of unreasonable search

and seizure, false arrest, and malicious prosecution.

        The Deputy Sheriffs raise only one defense to all of these claims—that they were

enforcing a courthouse rule. According to the Deputies, Enoch and Corbin violated Local Rule

33(D)(6) of the Hamilton County Court of Common Pleas by recording in the courthouse




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No. 17-3571, Enoch v. Hogan


hallway without having previously secured permission to do so.1 The Deputies argue that

because they were entitled to take action upon witnessing a violation of courthouse rules, the

searches, arrests, and prosecutions were all lawful and constitutional.

         Because Local Rule 33(D)(6) is not mentioned in the Complaint, we may consider this

additional argument only to the extent that it challenges the Complaint’s “legal conclusions or

unwarranted factual inferences.” See JPMorgan Chase Bank, 510 F.3d at 582 (quoting Mixon,

193 F.3d at 400). By its text, Local Rule 33(D)(6) prohibits recording “in any courtroom or

hearing room, jury room, judge’s chambers or ancillary area (to be determined in the sole


1
 The Hamilton County Court of Common Pleas Local Rule 33(D)(6), titled “Cell Phones, Cameras, Pagers, Laptop
Computers, and Other Electronic Devices,” is available at https://hamiltoncountycourts.org/index.php/common-
pleas-local-rule-33. The rule provides, in its entirety:
    a.   Unless otherwise permitted in accordance with Rule 30 of these Local Rules, the operation of any
         cellular or portable telephone, camera (still or video), pager, beeper, computer, radio, or other
         sound or image recording or transmission device is prohibited in any courtroom or hearing room,
         jury room, judge’s chambers or ancillary area (to be determined in the sole discretion of the Court)
         without the express permission of the Court. All such devices must be turned off in the above-
         listed areas at all times.
    b.   Duly licensed attorneys and their paralegals/assistants appearing in court, courthouse employees,
         public safety officers, authorized contractors and vendors, court staff, and any others authorized by
         the Court are exempt from the prohibition set forth above unless ordered by the Court.
    c.   Any person or persons violating this Rule are subject to sanctions for contempt and or criminal
         prosecution, and may be ejected from any restricted area described above or from the courthouse,
         and any item or device operated in violation of this Rule may be confiscated by court staff or
         courthouse security personnel and held until the offending person(s) leave(s) the courthouse. In no
         event shall the Court or any court or security personnel be liable for damage to any device
         confiscated and/or held in accordance with this Rule.
The cross-referenced Rule 30, titled “Media Coverage of Court Proceedings,” is                           available   at
https://hamiltoncountycourts.org/index.php/common-pleas-local-rule-30. Subsection (A) provides:
         Requests for permission to broadcast, televise, photograph, or otherwise record proceedings in the
         courtroom shall be made in writing to the Judge or the Judge’s designated courtroom employee.
         Such a request shall be made on the appropriate application form available through the Court
         Administrator. Such applications should be made as far in advance as is reasonably possible but in
         no event later than 30 minutes prior to the courtroom session to be recorded. The Judge involved
         may waive the advance notice provision for good cause. All applications shall become part of the
         record of the proceedings.
The remaining subsections of Rule 30 are not relevant to this case. They cover the judge’s response to recording
requests; arrangements to pool resources, including by sharing a single video camera and using the court’s audio
system; and specific prohibitions on filming confidential communications, objecting witnesses, and jurors.




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discretion of the Court) without the express permission of the Court.” The scope of Rule 33 does

not present a purely legal question because the text of the rule is not dispositive. The enumerated

list of covered areas does not include hallways, nor are hallways necessarily an “ancillary area.”

The invocation of “the sole discretion of the Court” further muddies the waters because it

appears that judges must make periodic determinations as to what constitutes an ancillary area—

and perhaps, as the magistrate judge tentatively opined, as to what constitutes any of the areas in

the list. Whether such judicial determinations were made and what areas of the courthouse they

covered at what times are factual, not legal, questions. Enoch and Corbin plausibly alleged the

relevant factual information by stating in their Complaint that “[d]uring that pretrial hearing, the

presiding judge specifically restricted all court attendees from using their electronic devices

inside the courtroom during the official court proceedings. At that time, the presiding judge

issued no such prohibition as to use of electronic devices in the hallways of the courthouse.”

       We must accept Enoch and Corbin’s factual allegation as true. JPMorgan Chase Bank,

510 F.3d at 581. Our Fourth Amendment analysis proceeds on the assumption that Enoch and

Corbin were searched, arrested, and prosecuted because of their race and despite violating

neither Local Rule 33(D)(6) nor the Ohio statutes referenced in their citations.

       We analyze the Deputies’ interactions with Enoch and Corbin under the standard for

brief, investigative stops that was laid out in Terry v. Ohio, 392 U.S. 1 (1968). The Terry

standard, however, does not govern the entirety of the interactions. Even assuming for the sake

of argument that the initial stops of Enoch and Corbin were brief and investigative in nature,

probable cause was required for the arrests and prosecutions that followed those stops. See Sykes

v. Anderson, 625 F.3d 294, 305, 308 (6th Cir. 2010). Terry is nonetheless a useful beginning

point for our analysis because the level of suspicion required for a Terry stop is “‘obviously less’




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No. 17-3571, Enoch v. Hogan


than is necessary for probable cause.” Navarette v. California, 134 S. Ct. 1683, 1687 (2014)

(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Thus, if the Deputies cannot satisfy the

Terry standard, they necessarily cannot satisfy the probable cause standard that governs the

remainder of their actions.

       To make an investigative stop under Terry, a law enforcement officer must have “a

particularized and objective basis for suspecting the particular person stopped of criminal

activity.” Id. (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). The Complaint

alleges that the Deputies stopped and searched Enoch and Corbin because of their race and

despite the fact that their behavior was entirely lawful. It has been the law of this circuit for

decades that “the reasonable suspicion requirement for an investigative detention cannot be

satisfied when the sole factor grounding the suspicion is race.” United States v. Avery, 137 F.3d

343, 354 (6th Cir. 1997). Enoch and Corbin therefore plausibly allege that they were victims of

an unconstitutional search and seizure.

       Because individualized suspicion is less demanding than probable cause, see Navarette,

134 S. Ct. at 1687, the same race-related facts necessarily do not satisfy the higher probable

cause standard.    As a general matter, arrest and prosecution without probable cause are

unconstitutional. See Sykes, 625 F.3d at 305, 308 (explaining that a false arrest claim lies only if

“the arresting officer lacked probable cause to arrest the plaintiff” and that the requisite

constitutional violation underlying a malicious prosecution claim is “a lack of probable cause for

the criminal prosecution”). The Deputies’ only response on this point is that they had probable

cause to believe that Enoch and Corbin were violating Local Rule 33(D)(6), a new factual

allegation that we disregard for the reasons already explained. The Deputies do not advance any

other arguments as to why the facts alleged do not suffice to establish the requisite elements of




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No. 17-3571, Enoch v. Hogan


Enoch and Corbin’s claims. Enoch and Corbin therefore have plausibly alleged violations of

their Fourth Amendment rights.

       Those rights were clearly established. “For a right to be clearly established, the contours

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

doing violates that right.” Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010)

(quoting Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007)). As of June 2014, the

published precedent of this court made clear that an officer may not stop, much less arrest and

prosecute, an individual on the basis of her race. We held in United States v. Johnson, 620 F.3d

685, 688 n.1, 692–96 (6th Cir. 2010), and again in United States v. Beauchamp, 659 F.3d 560,

564, 570–71 (6th Cir. 2011), that officers did not have the requisite reasonable suspicion to

conduct an investigative stop of black men who (among other factors) were out late at night in

high-crime areas and attempted to avoid interactions with police officers. In the situation at

hand, the Deputies had even less reason to suspect Enoch and Corbin of criminal activity.

On the facts alleged, there was nothing suspicious about the time, location, or nature of their

actions.

       Enoch and Corbin have plausibly alleged violations of their clearly established Fourth

Amendment rights. The Deputies are not entitled to qualified immunity as a matter of law on

these counts of the Complaint.

               2.     First Amendment

       Enoch and Corbin also claim that the Deputies unconstitutionally infringed upon their

First Amendment free speech rights. Plaintiffs alleged that they were part of a group of media

members and private individuals recording events of public importance—an “‘impromptu’ press

conference” held by the attorney representing a local judge in criminal proceedings. Enoch is

herself a member of the press.


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No. 17-3571, Enoch v. Hogan


       The Deputies raise two defenses to this claimed constitutional violation. First, they argue

again that they were enforcing courthouse rules. As explained, we disregard this new factual

allegation at this stage of the litigation and accept Enoch and Corbin’s allegation that they had

violated no rule or law. Second, the Deputies argue that there is no clearly established First

Amendment right to record. But that issue is not dispositive in this case. We have long and

clearly held that newsgathering “qualif[ies] for First Amendment protection.” Boddie v. Am.

Broad. Cos., 881 F.2d 267, 271 (6th Cir. 1989) (quoting Branzburg v. Hayes, 408 U.S. 665, 681

(1972)). “[W]ithout some protection for seeking out the news, freedom of the press could be

eviscerated.” Branzburg, 408 U.S. at 681. And while trial-related newsgathering may be

subjected to reasonable restrictions and limitations, see Richmond Newspapers v. Virginia,

448 U.S. 555, 581 n.18 (1980), this case must proceed under the assumption that no rule was

violated here. The Deputies could not constitutionally prevent Enoch and Corbin from or punish

them for gathering news about matters of public importance when their actions violated neither

rules nor laws. Enoch and Corbin have therefore plausibly alleged a violation of their First

Amendment rights.

       Those rights were clearly established. Decades ago, the Supreme Court established with

clarity that the First Amendment protects the rights of both the media and the general public to

attend and share information about the conduct of trials, “where their presence historically has

been thought to enhance the integrity and quality of what takes place.” Id. at 578. The Court

linked the right of access to another fundamental First Amendment right, explaining that “[t]he

explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would

lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.”

Id. at 576–77. The same logic necessitates finding a constitutional violation in this case, where




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No. 17-3571, Enoch v. Hogan


Enoch and Corbin’s access to a press conference held immediately after a hearing was foreclosed

on the basis of their race.

        The Supreme Court has likewise been clear for more than fifty years that state officials

may not enforce rules or regulations that implicate First Amendment rights in a racially

discriminatory manner.        In a case involving two black protestors who refused to leave a

segregated library, the Supreme Court explained:

        A State or its instrumentality may, of course, regulate the use of its libraries or
        other public facilities. But it must do so in a reasonable and nondiscriminatory
        manner, equally applicable to all and administered with equality to all. . . . [I]t
        may not invoke regulations as to use—whether they are ad hoc or general—as a
        pretext for pursuing those engaged in lawful, constitutionally protected exercise
        of their fundamental rights.

Brown v. Louisiana, 383 U.S. 131, 143 (1966). Here too, on the facts alleged, state officials

purported to enforce state law in a racially discriminatory manner, stopping and arresting black

citizens for engaging in behavior that was both protected by the First Amendment and permitted

for their white counterparts.

        Based on the Complaint, the Deputy Sheriffs violated Enoch and Corbin’s clearly

established First Amendment rights.        The Deputies are therefore not entitled to qualified

immunity as a matter of law on this count of the Complaint.

                                   III.      CONCLUSION

        Enoch and Corbin have plausibly alleged violations of their clearly established First and

Fourth Amendment rights.         We therefore AFFIRM the district court’s denial of qualified

immunity and REMAND the case to the district court for further proceedings consistent with

this opinion.




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