Sixth Circuit Holds that Police Must Protect Free Expression of Unpopular Views

Curlew, DougThe “freedom of speech” protected by the First Amendment encompasses both actual speech and expressive conduct.  R.A.V. v. City of St. Paul, Minn. (S.Ct. 1992).  Embodied within the concept of “free speech” is recognition that advocates of unpopular views must be protected, even though their speech may provoke anger in persons who hear it.  Terminiello v. City of Chicago (S.Ct. 1949).  When a speaker passes the bounds of mere argument the point of seeking to incite a riot, police may intervene against the speaker for the protection of public safety, Feiner v. New York (S.Ct. 1951), but this threshold is reached only where the speaker’s advocacy “is directed to inciting or producing eminent lawless action and is likely to incite or produce such action.”  Hess v. Indiana (S.Ct. 1973).  “Government officials may not exclude from public places persons engaged in peaceful expressive activities solely because the government actor fears, dislikes, or disagrees with the views those persons express.” Wood v. Moss (S.Ct. 2014).

In two recent opinions, the United States Court of Appeals for the Sixth Circuit has addressed this balance between free speech and public safety.  In Occupy Nashville v. Haslam (2014), protestors seeking to bring “attention to disparities in wealth and power in the United States” established a 24-hour-a-day protest encampment on the plaza of a public war memorial in Nashville, Tennessee.  As the days passed and the number of protestors grew, problems arose dealing with human waste and trash, together with “an increase in the number of assault complaints and damage to public property.”  After three weeks, State officials decided to address these problems by imposing a curfew under which “the plaza would close to the public from 10:00 p.m. until 6:00 a.m. daily.”  Protestors arrested for attempting to continue their 24-hour-a-day protest in defiance of the curfew sued the officials for violating the protestors’ First Amendment rights.  The Sixth Circuit held that the officials could not be found liable to the protestors, because there is no clearly established constitutional right to occupy public space for an indefinite period and no “unfettered right to threaten the health and safety of the public or the security of public property.”

In Bible Believers v. Wayne County (2015), law enforcement officials also invoked public safety concerns to justify ouster of Christian “evangelists” from a public Arab cultural festival.  The evangelists targeted the many Muslim attendees with a provocative, anti-Islamic speech and signs (particularly insulting the Muslim prophet Mohammed), while carrying a severed pig’s head on a stick through the crowd.  Some festival attendees threw bottles and other objects at the evangelists.  The deputy chief of the sheriff’s department asked the evangelists to leave, with justification that he did not have enough officers at the event to protect the evangelists from the crowd.  He warned the evangelists they would be ticketed for disorderly conduct if they refused to leave.

After originally approving the sheriff’s actions, the Sixth Circuit re-heard the case and found the sheriff to have violated the evangelists’ First Amendment rights.  The Court held that law enforcement officials have an obligation to protect those who publicly express an unpopular viewpoint from the hostile reaction of those upset by the message.  In this instance the sheriff’s course of action allowed the hostile crowd to silence the evangelists.  Citing the previous Sixth Circuit case of Glasson v. City of Louisville (1975), the Court admonished that “a police officer has the duty not to ratify and effectuate a heckler’s veto.”

The lesson to be drawn from the Occupy Nashville and Bible Believers opinions is that concerns for public safety cannot justify the complete silencing of a speaker in a public forum.  The cases fail to provide any “bright line” to discern when public safety concerns become sufficiently compelling to justify restriction of speech, but a total exclusion such as effectively occurred in the Bible Believers case will almost certainly be rejected by the courts, even where a compelling public safety concern exists.

The Occupy Nashville decision confirms that health and safety concerns can justify limited restrictions that do not entirely prevent a speaker from continued speech or expressive conduct in a public forum the speaker has chosen.  The Supreme Court has long recognized that content-based regulation of speech in a public forum is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.”  Perry Ed. Ass’n. v. Perry Local Educators Ass’n (1983).  Yet “reasonable time, place or manner restrictions on expression are constitutionally acceptable.”  Clark v. Community for Creative Non-Violence (S.Ct. 1984).  The over-night exclusion of speakers from the plaza in Occupy Nashville was sufficiently narrow in its time-frame and scope.

Conversely, the effectively total exclusion of the evangelists in the Bible Believers case was not.  The Bible Believers opinion admonishes that law enforcement officers must protect the right of speakers to express unpopular views in their chosen public forum, even though this might require affirmative intervention by law enforcement officers against those who oppose the speakers. Law enforcement officials must seek alternatives that maintain public safety, while still allowing provocative speakers to speak.

Douglas J. Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

In the Wake of Two Recent Rulings, Attorneys Offer Advice to Law Enforcement on Avoiding Liability

MACPlogoJim Acho, Doug Curlew and Jennifer Richards, all attorneys in our Livonia office, co-wrote an article highlighting two recent cases that impact law enforcement agencies. The article was published in the Michigan Association of Chiefs of Police’s publication Michigan Police Chiefs.

The article, “Unfavorable Outcome Affects Law Enforcement” summarizes two recent cases from the United States Court of Appeals for the Sixth Circuit that resulted in rulings against law enforcement agencies. The first case deals with whether officers were justified in failing to obtain a warrant and whether the use of tear gas was excessive force during an all-night standoff. The second case deals with whether tight handcuffs constituted excessive force. The article includes advice on what law enforcement should do to avoid liability in similar situations.

Jim Acho focuses his practice on sports and entertainment law, labor and employment law, law enforcement defense and plaintiff’s personal injury. He may be reached at (734) 261-2400 or jacho@cmda-law.com. Doug Curlew focuses his practice on law enforcement defense, litigation and appeals and insurance defense. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com. Jennifer Richards focuses her practice on appeals, law enforcement defense, municipal law and insurance defense. She may be reached at (734) 261-2400 or jrichards@cmda-law.com.

Litigation: How to be Better Prepared

Curlew, DougUnder the American legal system, there is no realm of human activity that fails to spawn litigation. The financial cost of a potential judgment is easily recognized. Less understood is the cost of time, energy, and resources (financial and human) of the litigation process itself. Even the defendant who avoids judgment by “winning” his case will still have expended resources that the law generally affords no avenue to recover.

The primary protection against both a potential judgment and the cost of litigation is insurance. Every individual, organization, and enterprise should obtain insurance coverage adequate to encompass both the scope of their activities and the potential dollar amount of liabilities that might arise from those activities. Be attentive to your policy terms and ask questions of your insurance agent. Ultimately, it is the responsibility of you as the insured, not your insurer, to choose the correct coverage.

Even with insurance, however, other preventative steps should be taken. Being attentive to avoid and remedy liability risks in advance is an obvious measure. When potential liability incidents do occur, however, other steps will aid your defense counsel to protect your interests.

First, be alert to incidents that may result in legal claims against you or your enterprise. If these occur, do not wait for a claim to be filed. Notify your insurer and your attorney immediately.

Second, retaining complete information about any incident posing the potential for litigation is critical. This is true even for information that may impact your defense in a negative manner. There are legal penalties for destruction of evidence, even in civil cases. More importantly, your defense attorney needs to know as many facts about the incident as possible and as soon as possible, in order to best prepare your defense. Relevant records kept in the general course of business, together with any special reports of a particular incident, should be kept and provided to defense counsel as soon as possible. The same is true for any video, photographic, or audio records.

Any participants in an incident, together with non-participating witnesses, should be identified whenever possible. Documentation of their observations is best obtained early, given the frailties of human memory. This should be done even before any actual claim is filed against you. Again, these should be provided to defense counsel as quickly as possible.

Finally, recognize that your attorney will need continued communication and cooperation through the litigation process. The best defense is proactive, not reactive. The efforts of your attorney to develop a general strategy for your defense and to pursue specific tactics in support of that strategy are dependent upon your cooperation in promptly providing information and evidentiary materials. Moreover, the legal system imposes deadlines for certain activities required of parties to litigation. Prompt response to requests from your attorney for information is critical to meeting these deadlines. Lines of communication must be available and open at all times.

Litigation may prove unavoidable. It always entails unwelcome costs and burdens. These can be reduced, however, if you are prepared.

Douglas Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Officer and Public Safety Justify Force Against Recklessly Fleeing Motorists

Recent decisions issued by the U.S. Supreme Court and the U.S. Sixth Circuit Court of Appeals have clarified the law regarding the force police officers may use to stop a person attempting to flee from police by driving away in a motor vehicle. The Supreme Court had previously established in Tennessee v. Garner (1985) that officers can apply potentially deadly force to stop a fleeing suspect if the officer has probable cause to believe that the suspect poses a threat of serious physical harm to the officer or others. In Garner, however, the suspect was on foot. Subsequently, the Supreme Court approved an officer’s use of injurious force in the form of colliding his police vehicle against the car of a fleeing suspect to end a high-speed chase. Now the Court has addressed the applicability of these principles to the shooting of a suspect fleeing in a car.

In Plumhoff v. Rickard, 134 S.Ct. 2012 (2014), addressed an “excessive force” claim arising from the death of a suspect who drove recklessly away from a traffic stop, rather than comply with directions to exit his vehicle. The suspect swerved through traffic at speeds exceeding 100 miles per hour, with the original officer and others in pursuit. When finally cornered after spinning his car into a parking lot, the suspect collided with two police vehicles and attempted to escape by driving away in reverse, forcing officers who had exited their vehicles to jump out of his way. Before the suspect could exit the parking lot, three officers fired a total of fifteen gun shots into the vehicle, fatally wounding the suspect.

The Supreme Court held that a police officer’s act of shooting in an attempt “to terminate a dangerous high-speed car chase that threatens the lives of officers or innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing suspect at risk of serious injury or death.” Moreover, once an officer begins shooting “at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Because the suspect in Plumhoff had continued trying to drive away during the entire “10-second span when all the shots were fired,” the suspect had “never abandoned his attempt to flee,” and the officers were justified in firing all fifteen shots.

Subsequently, in Cass v. City of Dayton (decided October 16, 2014), the U.S. Sixth Circuit applied the Plumhoff ruling in the circumstance where a suspected drug dealer attempted to drive away from a police drug sting. In doing so, the suspect struck two officers, knocking one officer on the ground and striking the hand of the other such that the officer’s gun inadvertently fired. Hearing the gunshot and assuming other officers to be in peril, the officer on the ground fired a single shot that missed the suspect driver and killed the vehicle passenger. Although the officers were disciplined for violating departmental policy, the Sixth Circuit found no constitutional violation. Relying on Plumhoff and earlier Sixth Circuit precedents, the Court held that the officers “were not required to step aside and let the [suspect vehicle] escape, particularly after it had struck two of their fellow officers.” Although the officers who had already been struck were not in danger of being struck again, “no reasonable officer would say that the night’s peril had ended at that point,” because there were other officers on the scene, and the suspect had shown “a willingness to injure officers trying to prevent him from fleeing.”

These cases establish that officers may properly use deadly force in the form of shooting a suspect if the suspect’s attempt to flee police threatens the safety of officers or the general public. It can be expected that the Plumhoff decision will have a significant impact upon future cases involving the fatal shooting of suspects by police. The shooting of a suspect whose flight in a motor vehicle jeopardizes the safety of officers or the public can be reasonable under constitutional standards.

Douglas Curlew is an attorney in our Livonia office where he concentrates his practice on appeals, premises liability and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Insureds and Insurers Must Carefully Read their Insurance Policies

In two seminal opinions, Wilkie v Auto-Owners Ins. Co. and Rory v Continental Ins. Co., the Michigan Supreme Court emphatically confirmed that insurance contracts are to be enforced by the courts “as written.”  The parties to an insurance contract remain free to waive or modify the terms of the contract by mutual consent, but one party cannot demand enforcement of an insurance contract, contrary to the mutually agreed terms, based upon that party’s unilateral belief that the contract has a meaning different than what the mutually agreed terms actually provide.  In particular, the insured is bound by the agreed terms, despite the reality that most insureds must accept their insurance contracts as offered by an insurer, with no genuine opportunity to negotiate the coverage terms.

Yet under these mandates, both the insured and the insurer must be careful to read the insurance contract between them.  An insurer is obligated to know the terms of their insurance policy and will be bound to those terms, even if they fail to read them.  On the other hand, in the absence of fraud by the insured, the insurer is equally bound to the terms of the insurance policy; the insurer must specifically describe those exclusions and conditions in the policy in unambiguous terms.  Ambiguous terms in an insurance policy (i.e., terms that are capable of conflicting interpretations based upon the words used) may be interpreted against the insurer, if there is no demonstrable, external evidence that the insured and insurer had mutually agreed to one particular meaning for the ambiguous term.

Insurance sales and claims representatives need to be particularly aware of the actual language of the insurance policies with which they deal because the policy terms may prove overly generalized or even ambiguous in specific factual situations.  This is particularly true because policy terms are often drafted by the Insurance Services Office (an association of insurers that develops standard policy forms) rather than an individual insurer.  Insurers, as much as their insured, are at risk of finding their expectations regarding the meaning of terms of an insurance policy rejected by the courts if these expectations are not based upon a careful reading of the language of the insurance contract.


Douglas Curlew, an attorney in our Livonia office, concentrates his practice on appeals, premises liability and insurance law.  He can be reached at (734) 261-2400 or dcurlew@cmda-law.com.