Mackey v. Rising

106 F.4th 552

Wendell Shane MACKEY, Plaintiff-Appellant, v. Jeff RISING, Defendant-Appellee,City of Adrian, Michigan; Ameritrust Group, Inc., Respondents.

No. 22-2165

United States Court of Appeals, Sixth Circuit

Argued: October 26, 2023

Decided and Filed: July 1, 2024

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:20-cv-13408—Nancy G. Edmunds, District Judge.

ARGUED: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellant. Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellee and Respondents. ON BRIEF: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellant. Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellee and Respondents.

Before: MOORE, READLER, and MURPHY, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

State employees do not work for the State every hour of the day. They also undertake all sorts of private activities on their own time. Yet the Fourteenth Amendment restricts only the actions of a "State," and 42 U.S.C. § 1983 grants a remedy only against those who act "under color of" a state law, custom, or the like. So what distinguishes an employee's state actions that trigger these provisions from the employee's private actions that do not? The Supreme Court recently addressed this topic in a decision about an employee's use of social media: Lindke v. Freed, 601 U.S. 187, 144 S.Ct. 756, 218 L.Ed.2d 121 (2024).

This case allows us to apply Lindke's guidance. Jeff Rising, a real-estate agent, served one term as a part-time City Commissioner for Adrian, Michigan. Shane Mackey, a local resident, posted information about Rising on Facebook that Rising believed to be false. Rising responded by calling Mackey's mother. During this call, Mackey alleges, Rising threatened to "hurt" him if he did not delete the post (an allegation that Rising denies). Mackey sued. He argued that Rising's threat of physical violence violated the First Amendment because Rising made it in his capacity as a Commissioner to stifle Mackey's speech. Early on in the suit, Rising accepted the City's insurance to pay for his defense. But he then testified that he had called Mackey's mother as a private citizen. According to Mackey, Rising's use of the City's insurance showed that Rising had waived (or should be judicially estopped from raising) his lack-of-state-action defense.

Mackey is wrong on both fronts. Rising served as a legislator, not a police officer. The City of Adrian thus did not grant him any "authority" to use (or threaten) physical force on its behalf. Id. at 198, 144 S.Ct. 756. And because the City "did not entrust" Rising with this power, his alleged "misuse" of the power cannot qualify as state action. Id. at 199-200, 144 S.Ct. 756. Next, Rising accepted the City's insurance for his defense because he maintained that the insurer's duty to defend turned on Mackey's allegations alone (which claimed that Rising had acted for the City). Because his state-action defense on the merits did not conflict with his view of the insurer's duty to defend, neither waiver nor judicial estoppel apply. We thus affirm the grant of summary judgment to Rising.

I

The small City of Adrian sits about sixty miles to the southwest of Detroit. The City's government includes an elected City Commission (its legislative body) made up of six Commissioners and a Mayor. This Commission bears the responsibility to, among other things, enact the City's ordinances and approve the City's budget.

In 2013, Jeff Rising decided to run for a seat on the Commission at the suggestion of a retiring Commissioner. Rising had lived in Adrian for decades but never served in government. He had instead built a successful real-estate business under the RE/MAX name. In November, Adrian voters elected Rising to a four-year term as a Commissioner. In the same election, Jim Berryman won the mayoral race. The two developed a good working relationship.

Over the next four years, Rising regularly attended the Commission's meetings twice a month to conduct the City's legislative business. The City did not provide him with an office, car, computer, or phone. He thus used his private property to perform his public duties. But the City did give him an official Facebook account and email address. It also paid him a small stipend ($700 after taxes) every three months.

When the next election approached in November 2017, Berryman and Rising both had to consider whether to seek another term. Berryman chose to run for reelection as Adrian's Mayor. But Rising decided to leave public service.

Shane Mackey decided to run for a Commissioner seat during this 2017 election. Leading up to the election, he became a regular at the Commission's meetings. He had long harbored animosity toward Berryman. Thirty years earlier, the State had convicted Mackey of breaking into Berryman's flower shop. Berryman v. Mackey, 327 Mich.App. 711, 935 N.W.2d 94, 97 (2019). At a meeting, Mackey accused Berryman of engineering his lengthy sentence for this crime. See id. He also called Berryman "crooked" for decisions he made as Mayor. Id. at 97-98.

Apart from speaking at meetings, Mackey used the internet to criticize the Mayor and Commissioners. He created an anonymous blog (www.exposingadrian.com) dedicated to disclosing the Commission's purported misdeeds. His posts alleged, among other things, that the Commission had violated Michigan's open-meetings law, misused funds, and awarded lucrative contracts to "cronies." He separately created an anonymous Facebook page ("Anyone But Berryman") that disparaged the Mayor and Commissioners. For example, the page's profile picture superimposed Berryman's face on a picture of Adolf Hitler in a Nazi uniform.

While Rising had decided not to seek reelection, he did not escape Mackey's ire. In a June 2017 post, Mackey criticized all the Commissioners (including Rising) for living in the same upscale part of Adrian. The post contained a map with a picture of each Commissioner over that Commissioner's home. Worried that Mackey had disclosed his address online, Rising asked the police for extra patrols around his street.

Mackey "strategically waited" until weeks before the election to reveal more salacious information about Rising. Mackey Aff., R.48, PageID 1286. In 2000, Rising had worked as an emcee and backup dancer for a traveling show affiliated with Chippendales (the company known for its risqué male dancers). Around 10:30 p.m. on October 14, Mackey posted on his "Anyone But Berryman" Facebook page a picture of Rising and five men in their signature Chippendales uniform (shirtless with a bow tie around their necks and shirt cuffs around their wrists). Mackey's caption to this picture accused Rising of using cocaine and affiliating with a criminal: "Here's our morally corrupt, former cocaine using City Commissioner Jeffrey Rising sitting next to his convicted felon buddy John Stepansky, who robbed the China Buffet. And these nasty people claim to take the moral high road. #CorruptPolitician #Shameful." Facebook Page, R.48, PageID 1401.

Rising had spent the evening relaxing at home while consuming "[t]hree or four" cans of Miller Lite. Rising Dep., R.48, PageID 1366-67, 1377. He saw the Anyone But Berryman post because the anonymous author tagged him. Rising assumed that Mackey ran this Facebook page. He also knew Mackey's mother—Alice Mackey—because she was a fellow real-estate agent in Adrian. Rising thus responded to the post using his personal Facebook account: "Nice try Shane Mackey. My past isn't a secret. Alice Mackey get your kid in line." Facebook Page, R.48, PageID 1402.

On seeing this comment, Mackey responded (under the Anyone But Berryman moniker): "So your cocaine use isn't a secret? Then surely you'll have no problem discussing it during the next City Commission meeting, right? In light of Mackey's litigation record and Berryman's inability to get even a PPO to stick against him, you might want to think before defaming people. #NoMoreCocaineComissioners." Id. Mackey posted several more comments ridiculing Rising and Berryman over the next hour.

As the night wore on, Rising grew increasingly alarmed by Mackey's post. He had never used cocaine. And he had not seen John Stepansky (the alleged criminal in the picture) for years. Rising worried that the post's claims could harm his "reputation as a business owner in the community." Rising Dep., R.48, PageID 1378. He wanted Mackey to delete the post "before thousands of people saw it." Id. Rising did not have Mackey's phone number, but he did have the contact information of Adrian's real-estate agents, including Mackey's mother. Rising decided to call her around 12:30 a.m. Despite the late hour, she answered.

The parties dispute what Rising said to Mackey's mother. According to Mackey, Rising made threats. Mackey's mother recalled Rising stating: "You better tell that motherfucking piece of shit son of yours that [he] better quit posting/putting on Facebook shit about me." Mackey Aff., R.48, PageID 1288. She responded by asking if Mackey had posted something about Rising. Rising retorted: "He's doing it right now and I'm telling you [he] better stop it or somebody is going to get hurt." Id. (emphasis omitted). According to Rising, he did not use profanity or threaten anyone. He merely asked Ms. Mackey to convince her son to remove what he thought were "inflammatory" and "untrue" statements about him. Rising Dep., R.48, PageID 1364, 1377. At this stage of the case, we must accept Mackey's version of this conversation. See Gambrel v. Knox County, 25 F.4th 391, 401 (6th Cir. 2022).

A few days later, Mackey's mother reported Rising's late-night call to the police. The police opened an investigation. Ultimately, an investigator found that there was "no way to prove what words Mr. Rising used when he made the phone call[.]" Report, R.48, PageID 1410.

In the ensuing...