                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0208n.06

                                           No. 15-3294


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

D.D., Individually and as Father and Friend on Behalf )
of S.D.                                               )                          FILED
                                                      )                      Apr 14, 2016
        Plaintiffs-Appellees,                         )                 DEBORAH S. HUNT, Clerk
                                                      )
v.                                                    )
                                                      )
JAMES SCHEELER, Police Officer Springfield            )         ON APPEAL FROM THE
Township Police Department [Badge 246]                )         UNITED STATES DISTRICT
                                                      )         COURT FOR THE SOUTHERN
        Defendant-Appellant                           )         DISTRICT OF OHIO
                                                      )
and                                                   )
                                                      )
SPRINGFIELD TOWNSHIP, et al.                          )
                                                      )
        Defendants.                                   )
                                                      )


BEFORE:        SILER, GIBBONS, and ROGERS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. James Scheeler (Scheeler), a police officer

with the Springfield Township Police Department, challenges the district court’s denial of his

motion for summary judgment on the false arrest claim plaintiff D.D. brought on behalf of his

daughter, S.D. Scheeler argues for the first time on appeal that the facts establish he had

probable cause to arrest S.D. and is therefore entitled to qualified immunity. We proceed to

consider the merits of this claim because its resolution will materially advance the progress of

the case. Considering the facts in the light most favorable to the plaintiffs, Scheeler’s arrest of

S.D. lacked probable cause and was objectively unreasonable.
No. 15-3294
D.D. et al. v. James Scheeler, et al.
                                                 I.

       On July 28, 2012, then-fourteen-year-old plaintiff S.D. was attending a church festival

with her friend Dana Dawson (Dawson). That night, a fistfight between two boys broke out, and

police officers at the festival made an “Officer Needs Assistance” call. Scheeler, on patrol for

the Springfield Township Police Department at the time, was among the officers who responded.

He arrived at approximately 11:00 P.M. and saw a large crowd containing numerous groups of

teenagers.

       S.D. recognized one of the boys involved in the fight, and after the police broke it up, she

approached a group of officers to tell them what she had witnessed. Because the officers did not

listen to her and seemed more focused on getting the two girls to leave the festival, S.D. became

irritated. The responding officers, including Scheeler, began walking behind the crowd and

asking the festivalgoers to move toward the church parking lot exit.

       Scheeler and S.D. disagree about the circumstances of their interaction. Scheeler testified

at his deposition that he first encountered S.D. while performing crowd control measures. He

noticed that the group she was with was talking loudly and not exiting like the other groups.

S.D. drew Scheeler’s attention because she was being loud and using vulgar language. He

instructed her three or four times to leave the festival, while she continued to use vulgar language

and ultimately refused to exit. According to Scheeler, S.D. “was having a three-year-old temper

tantrum in the middle of the festival . . . causing people to stop and watch, which hindered the

rest of the people in the festival from leaving.” R. 21, Scheeler Dep., Page ID 536–37. After

advising S.D. that if she did not leave the festival she would be arrested for disorderly conduct,

Scheeler arrested her.

       S.D., however, testified that when she approached the group of officers to tell them what

she had seen, Scheeler instructed her to leave that area. She began walking away, and Scheeler


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followed her and Dawson. As she was walking away, S.D. may have said something to Dawson

along the lines of “fuck the police,” or called the police “useless” or “idiots,” but S.D. does not

remember whether she was being loud. R. 16, Dep. of S.D., Page ID 170–71. Dawson testified

that S.D. was speaking to her and that she did not believe S.D. was speaking loudly enough for

Scheeler to hear her. Though S.D. was leaving the festival as instructed, she stopped right before

the exit in order to call her sister in order to take her sister home. Scheeler told S.D. to leave,

and she said she couldn’t until she reached her sister, though she said she was willing to leave as

soon as her sister was with her. Scheeler twice asked S.D. to give him her phone and said that he

was going to break it if she did not give it to him. He then knocked S.D.’s phone out of her

hand, grabbed her left wrist, and put her in his police cruiser. Dawson’s deposition testimony

corroborates the sequence of events involving the phone, S.D.’s explanation regarding her sister,

and the arrest.

       S.D. was arrested for disorderly conduct in violation of Ohio Rev. Code § 2917.11(A).

This statute provides, in relevant part:

       (A) No person shall recklessly cause inconvenience, annoyance, or alarm to
       another by doing any of the following:
               ...
       (2) Making unreasonable noise or an offensively coarse utterance, gesture, or
       display or communicating unwarranted and grossly abusive language to any
       person;

       (3) Insulting, taunting, or challenging another, under circumstances in which that
       conduct is likely to provoke a violent response;

       (4) Hindering or preventing the movement of persons on a public street, road,
       highway, or right-of-way, or to, from, within, or upon public or private property,
       so as to interfere with the rights of others, and by any act that serves no lawful and
       reasonable purpose of the offender;

       (5) Creating a condition that is physically offensive to persons or that presents a
       risk of physical harm to persons or property, by any act that serves no lawful and
       reasonable purpose of the offender.



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Ohio Rev. Code § 2917.11(A). Under Ohio law, to be reckless, a person must act “with heedless

indifference to the consequences,” in “disregard[ing] a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain nature.” Id. at

§ 2901.22(C). S.D.’s resulting juvenile court case was dismissed because she “complete[d]

thirty hours of community service . . . and an anger management assessment.”                R. 22-1,

Magistrate Order, Page ID 727.

       On July 19, 2013, plaintiff D.D. filed a complaint on behalf of his daughter, S.D., against

Scheeler and Springfield Township under 42 U.S.C. §§ 1983 and 1988, the Fourth, Fifth, Eighth,

and Fourteenth Amendments of the United States Constitution, and Article I, §§ 1, 2, 9 and 14 of

the Constitution of the State of Ohio. Among other claims, D.D. alleged that Scheeler’s conduct

constituted false arrest/imprisonment.      The defendants’ answer raised, among others, the

defenses of qualified and statutory immunity.

       The defendants moved on November 17, 2014 for summary judgment. Their motion

states that they are “entitled to absolute immunity, qualified immunity, and judgment as a matter

of law” and that “Officer Scheeler maintains he is entitled to qualified immunity with respect to

Plaintiff’s § 1983 claims because his interaction with [S.D] did not constitute any violation of a

clearly established constitutional right.” R-22, Mot. For Summ. J., Page ID 701–02, 721.

       The district court granted the defendants’ motion as to all of D.D.’s claims except for the

false arrest claim against Scheeler. D.D. v. Scheeler, No. 1:13-cv-504, 2015 WL 892387, at *14

(S.D. Ohio Mar. 3, 2015). The court held that Scheeler failed to carry his summary judgment

burden by demonstrating that he had probable cause to arrest S.D. Id. at *8. Rejecting his

argument that the disposition of S.D.’s juvenile court case established probable cause, thus

barring her false arrest claim, the district court further noted that “[n]either party further briefed




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D.D. et al. v. James Scheeler, et al.
the issue of whether the facts of this case establish that the Officer had probable cause to arrest

S.D. for disorderly conduct.” Id. The court specifically pointed to Scheeler’s failure to address

false arrest in his qualified immunity argument and stated that “therefore, the Court will not

engage in an independent assessment.” Id. n.3. Scheeler timely appealed.

                                                  II.

       Though “[a] denial of summary judgment on the issue of qualified immunity is

immediately appealable,” Cochran v. Gilliam, 656 F.3d 300, 305 (6th Cir. 2011), our jurisdiction

in such cases is limited to pure questions of law. See Harrison v. Ash, 539 F.3d 510, 517 (6th

Cir. 2008). Since D.D. and S.D. argue that the district court did not deny Scheeler qualified

immunity with regard to the false arrest claim because he never requested it, it is a threshold

question whether we have jurisdiction over Scheeler’s appeal.

       We have jurisdiction to consider the district court’s denial of summary judgment because

Scheeler broadly argued that he was entitled to qualified immunity on all of S.D.’s claims based

on the first prong of the qualified immunity analysis and because his argument that he had

probable cause to arrest S.D. is identical to the argument he would make under the first prong of

a qualified immunity analysis.          When conducting a qualified immunity analysis, we first

determine whether the plaintiff has shown that the defendant violated her constitutionally

protected right. Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir. 1996). In the

introduction to his motion for summary judgment, Scheeler stated that “he is entitled to qualified

immunity with respect to Plaintiff’s § 1983 claims because his interaction with [S.D.] did not

constitute any violation of a clearly established constitutional right.” R. 22, Mot. for Summ. J.,




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No. 15-3294
D.D. et al. v. James Scheeler, et al.
Page ID 702. Thus, Scheeler based his qualified immunity claim entirely on the argument that

he did not violate the Constitution.1

        Scheeler then argued in the false arrest section of his motion that he had probable cause

to arrest S.D. If Scheeler had specifically referred to qualified immunity in the false arrest

section of his motion, he would have made the exact same argument under the first step of the

qualified immunity analysis as he actually made in the false arrest section of his motion: that his

actions did not violate S.D.’s constitutional rights because he had probable cause to arrest her.

See Robertson v. Lucas, 753 F.3d 606, 618 (6th Cir. 2014) (“To state a Fourth Amendment false

arrest claim, a plaintiff must ‘prove that the arresting officer lacked probable cause to arrest the

plaintiff.’” (quoting Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005))).

Therefore, contrary to S.D.’s argument, Scheeler did “come forward with facts” regarding why

he is entitled to qualified immunity on the false arrest claim when he both stated that he was

entitled to qualified immunity on all claims because he did not violate any of S.D.’s

constitutional rights and then provided specific reasons why the arrest in particular did not

violate the Constitution. Accordingly, the district court’s determination that he did not have

probable cause as a matter of law can be immediately appealed because it was in effect a

determination that he did not establish as a matter of law that he satisfied the first prong of a

qualified immunity analysis.

        Additionally, this case can be distinguished from Mingus v. Butler, 591 F.3d 474 (6th Cir.

2010). In Mingus, the defendant in her answer asserted qualified immunity in response to the

plaintiff’s Eighth Amendment and Fourteenth Amendment claims, but in her motion for

summary judgment, she asserted qualified immunity only with respect to the Eighth Amendment

1
  Even in the excessive force section of his motion for summary judgment—in which he specifically engaged in a
qualified immunity analysis—Scheeler argued only that his actions did not violate the Constitution and did not argue
that the right was not clearly established.


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No. 15-3294
D.D. et al. v. James Scheeler, et al.
claim. Id. at 478, 483–84. Regarding the Fourteenth Amendment claim, she argued only that the

plaintiff’s claim did not survive rational basis review. Id. Based on the general rule that

appellate courts do not consider issues raised for the first time on appeal, we held that we lacked

jurisdiction to consider the defendant’s appeal of the denial of summary judgment on the

Fourteenth Amendment claim because the issue of qualified immunity was not properly before

the court. Id. at 483–84. However, unlike Scheeler, the defendant in Mingus did not broadly

state in her motion for summary judgment that she was entitled to qualified immunity on all of

the plaintiff’s constitutional claims because she did not commit any constitutional violation. See

No. 08-2286, R. 38 (Butler Motion for Summary Judgment).

       While the difference between Scheeler’s case and Butler’s case is close, the fact that

Scheeler stated generally that he is entitled to qualified immunity on all claims because he did

not commit any constitutional violation permits us to construe the district court’s ruling that he

did not establish that he had probable cause as a matter of law as effectively ruling that he did

not establish as a matter of law that he satisfied the first prong of the qualified immunity analysis

for the false arrest claim. Therefore, we have jurisdiction to review the denial of summary

judgment on the false arrest claim to the extent that the arguments on appeal do not dispute the

district court’s determination that a genuine issue of material fact exists. See Johnson v. Jones,

515 U.S. 304, 313 (1995).

                                                III.

       Scheeler’s appeal presents another potential barrier to our review, because he failed to

argue to the district court that the facts of the incident with S.D. establish that he had probable

cause to arrest her. As the district court noted, “[n]either party further briefed the issue of




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D.D. et al. v. James Scheeler, et al.
whether the facts of this case establish that the Officer had probable cause to arrest S.D.” D.D.,

2015 WL 892387, at *8. Nonetheless, we may still elect to consider this argument on the merits.

       Generally, “a federal appellate court does not consider an issue not passed upon below.”

Singleton v. Wulff, 428 U.S. 106, 120 (1976).        There are certain circumstances, however,

permitting departure from the general rule. We may hear new issues involving “exceptional

cases or particular circumstances,” where application of the general rule “would produce a plain

miscarriage of justice,” or when considering the unraised issue aids “an over-arching purpose

beyond that of arriving at the correct result in an individual case.” In re Morris, 260 F.3d 654,

664 (6th Cir. 2001) (quoting Pinney Dock & Transp. Co. v. Penn Central Corp., 838 F.2d 1445,

1461 (6th Cir. 1988); Foster v. Barilow, 6 F.3d 405, 408 (6th Cir. 1993)). In addition, our

precedent instructs us to address an issue when it is “presented with sufficient clarity and

completeness and its resolution will materially advance the progress of . . . litigation.” Morris,

260 F.3d at 664 (quoting Pinney Dock, 838 F.3d at 1461). Factors relevant to this analysis

include the completeness of the briefing and record, the duration of the litigation, and judicial

economy.     Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 446 (6th Cir. 2012); Doe v.

Sundquist, 106 F.3d 702, 707 (6th Cir. 1997); Foster, 6 F.3d at 407.

       Because whether the facts establish probable cause for S.D.’s arrest has been briefed, the

factual record does not need expansion, and a decision on the merits will save judicial resources,

we proceed to consider the merits of Scheeler’s claim.

                                               IV.

       We review de novo a district court’s denial of summary judgment based on qualified

immunity. United Pet Supply, Inc. v. City of Chattanooga, Tenn., 768 F.3d 464, 478 (6th Cir.

2014). A court properly grants summary judgment when “the movant shows that there is no




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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When reviewing a grant of summary judgment, the appellate court

must view the evidence and draw all reasonable inferences in favor of the non-moving party.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-

moving party, however, “must do more than simply show that there is some metaphysical doubt

as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita,

475 U.S. at 586–87).

       Under section 1983, a plaintiff may bring “a cause of action against any person who,

under color of state law, deprives an individual of any right, privilege or immunity secured by

the Constitution and federal law.”      McKnight v. Rees, 88 F.3d 417, 419 (6th Cir. 1996);

42 U.S.C. § 1983. Section 1983 claims are subject to the affirmative defense of qualified

immunity, which protects “government officials performing discretionary functions . . . 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.” Barker v. Goodrich, 649

F.3d 428, 433 (6th Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a

defendant raises a qualified immunity defense, the burden shifts to the plaintiff to prove that the

government official is not entitled to qualified immunity. Id. (quoting Ciminillo v. Streicher,

434 F.3d 461, 466 (6th Cir. 2006)). Thus, the government official “is entitled to qualified

immunity on summary judgment unless the facts, when viewed in the light most favorable to the

plaintiff, would permit a reasonable juror to find that (1) the defendant violated a constitutional

right; and (2) the right was clearly established.” Regets v. City of Plymouth, 568 F. App’x 380,

386 (6th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).




                                                -9-
No. 15-3294
D.D. et al. v. James Scheeler, et al.
       Here, the plaintiffs’ section 1983 claim alleges false arrest in violation of S.D.’s Fourth

Amendment rights. To state a claim of false arrest, a plaintiff must “prove that the arresting

officer lacked probable cause to arrest” her. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.

2010) (quoting Voyticky, 412 F.3d at 677). Probable cause is “reasonable grounds for belief,

supported by less than prima facie proof but more than mere suspicion.” Id. at 306 (quoting

United States v. McClain, 444 F.3d 556, 562 (6th Cir. 2005)). The officer can lawfully arrest the

plaintiff so long as there is probable cause to arrest her for some crime, even if the crime for

which there is probable cause is different from the stated crime of arrest. Devenpeck v. Alford,

543 U.S. 146, 153, 155 (2004) (“[The officer’s] subjective reason for making the arrest need not

be the criminal offense as to which the known facts provide probable cause.”). To determine

whether Scheeler had probable cause to arrest S.D., we consider the totality of the circumstances

and whether what he knew at the moment of arrest was sufficient to lead a prudent person to

believe S.D. had committed an offense. Sykes, 625 F.3d at 306 (quoting Hinchman v. Moore,

312 F.3d 198, 204 (6th Cir. 2002)).

       Scheeler alleges two potential crimes he had probable cause to believe S.D. committed:

disorderly conduct and obstructing official business. We must examine each of these offenses to

determine whether there was probable cause. See Devenpeck, 543 U.S. at 153, 155. “[S]tate law

defines the offense for which an officer may arrest a person, while federal law dictates whether

probable cause existed for an arrest.” Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 215 (6th

Cir. 2011). Viewing the facts in the light most favorable to the plaintiffs, Scheeler did not have

probable cause to arrest S.D. for either of these offenses.




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                                                     A.

       First, Scheeler lacked probable cause to arrest S.D. for disorderly conduct under Ohio

Rev. Code § 2917.11(A). Scheeler analogizes S.D.’s conduct to two Ohio cases, where one

plaintiff “shout[ed] obscenities in a retail establishment in the presence of customers,” and

another “loudly protest[ed] a driver’s arrest and had to be escorted away” twice from the scene of

an accident. R. 23, Appellant Br., at 27 (citing State v. Twyman, No. 19086, 2002 WL 1483576,

at *5 (Ohio Ct. App. July 12, 2002); State v. Fant, 607 N.E.2d 548 (Ohio Ct. App. 1992)). The

cases Scheeler cites are inapposite. In Twynman, an unpublished case, the extremely agitated

plaintiff screamed repeated obscenities at a police officer and behaved in such a manner that the

police officer thought he was going to assault him. 2002 WL 1483576, at *1–2. In Fant, the

plaintiff interfered with an arrest in progress. 607 N.E.2d at 549. Under the plaintiffs’ version of

the facts, S.D. was not speaking to Scheeler or loudly enough for him to hear her, and she simply

stood near the festival exit in order to call her sister. This conduct did not give Scheeler probable

cause to arrest S.D.

       Ohio’s disorderly conduct statute and the First Amendment require more than the

uttering, or even shouting, of distasteful words.       They require that the speech in question

constitute “fighting words.” City of Cincinnati v. Karlan, 314 N.E.2d 162, 164 (Ohio 1974).

(“[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or

opprobrious spoken words may seem to be, their utterance may not be made a crime unless they

are fighting words.”). Moreover, there can be no disorderly conduct “[w]here the language is not

threatening, does not constitute ‘fighting words’ and is not likely by its very utterance to inflict

injury or provoke the average person to immediate retaliatory breach of peace.” State v. Wood,

679 N.E.2d 735, 739 (Ohio Ct. App. 1996) (citation omitted).




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       Police officers are held to a higher standard than average citizens, because the First

Amendment requires that they “tolerate coarse criticism.” Kennedy, 635 F.3d at 216; see, e.g.,

City of Houston v. Hill, 482 U.S. 451, 461–63 (1987) (“The freedom of individuals verbally to

oppose or to challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.”) In City of Kent v.

Kelley, the Ohio Supreme Court held that the words “stay away from the fucking door” and “get

the fuck out of here” spoken in the presence of a police officer were not fighting words, because

they were “not descriptive of a particular person and directed to that person” nor were they

“epithets likely to provoke the average person to retaliation.” 337 N.E.2d 788, 789–90 (Ohio

1975) (holding that this language did not violate a local disorderly conduct ordinance) (citation

omitted).

       S.D.’s testimony, corroborated by her friend Dawson, is that she was not addressing

Scheeler with her speech. She may have used the word “fuck,” but for this word to qualify as a

fighting word unprotected by the First Amendment, it must have been personally directed at

Scheeler, beyond “coarse criticism,” and designed to provoke him. Taking the facts in the light

most favorable to S.D., her speech did not satisfy any of these requirements. She spoke to

Dawson, not to Scheeler, negating any intent to provoke, and what she said was no worse than

the speech protected in Kelley. S.D.’s speech did not establish probable cause for her arrest for

disorderly conduct.

       The next question is whether any other aspect of S.D.’s conduct establishes probable

cause for her disorderly conduct arrest. As Scheeler argues, Ohio Rev. Code § 2917.11(A) also

prohibits “creating a condition that presents a risk of physical harm to person . . . by any act that

serves no lawful and reasonable purpose of the offender.” Ohio Rev. Code § 2917.11(A)(5).




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“Physical harm to person means any injury, illness, or other physiological impairment, regardless

of its gravity or duration.” City of Marion v. McGlothan, No. 9-77-2, 1977 WL 199588, at *4

(Ohio Ct. App. June 28, 1977). Construing the facts in the light most favorable to S.D., there is

no evidence that her remaining at the festival, instead of immediately exiting, created a risk of

physical harm to others. Under these facts, Scheeler did not have probable cause to arrest S.D.

for disorderly conduct.

                                                B.

       The Ohio offense of obstructing official business provides for criminal liability for a

person who “without privilege to do so and with purpose to prevent, obstruct, or delay the

performance by a public official of any authorized act within the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance of the

public official’s lawful duties.” Ohio Rev. Code § 2921.31(A). Thus, the elements of the

offense are: “(1) the performance of an unprivileged act (2) with the purpose of preventing,

obstructing or delaying the performance by a public official of an authorized act within his

official capacity (3) which hampers or impedes the public official in the performance of his

lawful duties.” Lyons v. City of Xenia, 417 F.3d 565, 573 (6th Cir. 2005) (citation omitted).

With respect to the element of “purpose to obstruct,” “[a] person acts purposely when it is his

specific intention to cause a certain result.” N. Ridgeville v. Reichbaum, 677 N.E.2d 1245, 1249

(Ohio Ct. App. 1996). The statute also requires an affirmative act that interrupts police business;

“[a] person may not be convicted of the offense simply by doing nothing.” Lyons, 417 F.3d at

573–74 (citing State v. McCrone, 580 N.E.2d 468, 470–71 (Ohio Ct. App. 1989)).                 The

unprivileged act must actually hamper or impede the public official in the performance of his

duties, and “there must be some substantial stoppage of the officer’s progress.”          State v.

Wellman, 879 N.E.2d 215, 219 (Ohio Ct. App. 2007) (citation omitted).


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        Taking the facts in the light most favorable to the plaintiffs, there is no evidence that S.D.

intended to impede Scheeler’s crowd control measures by staying within the festival grounds.

Rather, S.D. told Scheeler multiple times that she was waiting to leave the festival until she

could reach her younger sister and willing to depart as soon as her sister was with her. Because

S.D. lacked the purpose of obstructing Scheeler, and she informed him of her reason for

remaining at the festival, he lacked probable cause to arrest her for obstructing official business.

                                                 C.

        Scheeler argued in his motion for summary judgment and in his appellate brief that the

disposition of S.D.’s juvenile court case establishes, as a matter of law, that Scheeler had

probable cause to arrest S.D. The documents he cites, however, do not establish that S.D.

admitted to or was convicted of disorderly conduct. The district court persuasively distinguished

this case from our decision in Bolden v. City of Euclid, No. 13-4397, 2014 WL 6871655 (6th Cir.

Dec. 8, 2014). The court reasoned that unlike the juvenile in Bolden who admitted to his charge,

“S.D. did not testify that her completion of [the anger management and community service]

criteria and the dismissal of her case constituted an admission of the disorderly conduct charge.”

D.D., 2015 WL 892387, at *7. We adopt the analysis and conclusions of the district court on

this issue.

                                                 V.

        The plaintiffs have cleared the first hurdle of the qualified immunity test by showing that,

taking the facts in the light most favorable to them, Scheeler violated S.D.’s Fourth Amendment

rights by arresting her without probable cause. Scheeler, however, is immune from suit if this

constitutional right was not clearly established at the time of her arrest such that it would have

been clear to a reasonable officer that Scheeler’s conduct was unlawful.            Saucier v. Katz,

533 U.S. 194, 202 (2001). Since it is “clearly established that arrests without probable cause


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violate[] the Constitution,” Parsons, 533 F.3d 492, 504 (6th Cir. 2008), the key question is

whether Scheeler’s “actions were objectively unreasonable in light” of S.D.’s Fourth

Amendment rights. Id. at 503 (quoting Radvansky v. City of Olmstead Falls, 395 F.3d 291, 310

(6th Cir. 2005)).

       Though the doctrine of qualified immunity “protects all but the plainly incompetent or

those who knowingly violate the law,” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009)

(citation omitted), “a reasonably competent public official should know the law governing his

conduct.” Harlow, 457 U.S. at 819. It may “seem unduly harsh to have an expectation that law

enforcement officers should know the intricacies of criminal statutes”; however, an ignorance of

the law defense in the qualified immunity context “might foster ignorance of the law or, at least,

encourage feigned ignorance of the law.” Pritchard v. Hamilton Twp. Board of Trs., 424 F.

App’x 492, 506, 506 n.9 (6th Cir. 2011) (citation omitted).

       S.D.’s conduct did not violate either of the statutes Scheeler has proffered. Under the

plaintiffs’ version of the facts, her speech did not rise to the level of “fighting words” and was

not unreasonably loud. S.D.’s failure to leave the festival also did not obstruct official business,

because she lacked the required purpose element. Scheeler’s arrest of S.D. was unreasonable

because no competent officer would have found probable cause to arrest S.D. See Leonard v.

Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (“We will not grant immunity to a defendant if no

reasonably competent peace officer would have found probable cause.”) (citation omitted).

Scheeler therefore is not entitled to qualified immunity on S.D.’s false arrest claim.

                                                VI.

       Though Scheeler raises a number of other issues, ranging from statutory immunity to

punitive damages, we lack jurisdiction over those claims. “Pendent [appellate] jurisdiction may




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D.D. et al. v. James Scheeler, et al.
be exercised only when the immunity issues absolutely cannot be resolved without addressing

the nonappealable collateral issues.” Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th

Cir. 2015) (quoting Archie v. Lanier, 95 F.3d 438, 443 (6th Cir. 1996)).        Here, qualified

immunity can be resolved without considering these issues, and we have specifically held that an

order denying statutory immunity under chapter 2744 of Ohio’s Revised Code “does not qualify

as a collateral order.” Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 605 (6th Cir.

2005).

                                              VII.

         For the foregoing reasons, we affirm the district court’s denial of summary judgment on

plaintiffs’ false arrest claim.




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No. 15-3294
D.D. et al. v. James Scheeler, et al.
       ROGERS, Circuit Judge, concurring. Except in unusual circumstances not present here,

we should not reverse a district court judgment based on arguments not raised in the district

court. Considering such an argument not raised below can be justified today only because we

are not reversing the district court, but rather rejecting the appellant's alternative argument.

Doing so precludes the possibility of a second interlocutory appeal from a district court denial of

a second motion for summary judgment. But this rationale does not extend to situations where

we accept the appellant’s new argument. Litigants should understand that our willingness to

consider an argument not presented below in this case depends on our contemporaneous

determination to reject the argument.




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