Thames v. City of Westland

KIMBERLEY THAMES, Plaintiff-Appellee/Cross-Appellant, v. CITY OF WESTLAND, et al., Defendants-Appellants/Cross-Appellees.

Case No. 18-1576

Case No. 18-1608

Case No. 18-1695

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

December 6, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0594n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal, four police officers, in their individual capacities, appeal the district court's denial of qualified immunity from claims of false arrest, retaliatory arrest in violation of freedom of speech and religion, and denial of equal protection. The plaintiff cross-appeals the denial of her motion for summary judgment on those claims and separately appeals the grant of summary judgment to the City and its Police Chief, certified for appeal under Federal Rule of Civil Procedure 54(b). We AFFIRM in part, REVERSE in part, and REMAND for entry of judgment consistent with this opinion.

I.

On Saturday morning, August 27, 2016, Kimberley Thames, a 57-year old, Roman Catholic, pro-life activist, stood with three other people—an elderly woman who appeared to be a Catholic nun, and a wheelchair-bound man with his wife—on the public sidewalk outside Northland Family Planning, an abortion clinic. Thames was holding a two-foot-by-two-foot sign with a photo and handwritten words, advocating pro-life beliefs and protesting abortion. While many Northland Clinic employees knew Thames as an occasional protestor, the Clinic's security guard, Robert Parsley, apparently did not. He was standing somewhere near her when she engaged him in conversation, beginning with her offer that she was praying for him and praying that he would find a different job. But, at some point, there was discussion of bombs. Thames said that Parsley raised the topic of bombs, telling her that there had been bombings and threats at abortion clinics, but Parsley says that Thames initiated it and said something like: "I prophesy bombs are going to fall and they're going to fall in the near future"; "I prophesy bombs are going to fall and they're going to fall on you people"; and "bombs, bombs on America, and bombs will blow up this building."

At the end of this conversation, Thames left in her car (she says to use a restroom) but Parsley reported Thames's statements to a clinic employee, Mary Guilbernat, who immediately called 911. The dispatcher sent four City of Westland police officers to the Clinic: John Gatti, Jason Soulliere, Adam Tardif, and Sergeant Norman Brooks.¹ These are the defendants here.

When Thames returned to resume her protesting, the police were there. Officer Gatti had arrived first and interviewed Parsley and Guilbernat. Both identified Thames as the person who made the statements. Parsley also told Officer Gatti that Thames fled when he tried to take her photo, saying: "I tried to make contact [with Thames] via photo. . . . [M]ost of them they don't mind getting photoed, but she has a problem with giving me a photo."² When Officer Soulliere approached Thames and asked if she had made a bomb threat, Thames denied it but would not tell Officer Soulliere what she had said to Parsley; instead, she talked around Officer Soulliere's questions, repeating that she had not made any threat, objecting that she did not know what shecould have said that Parsley had misconstrued, and blaming Parsley, saying that he had first mentioned bombings at abortion clinics.

Souilliere: Did you tell someone there was going to be a bombing?

Thames: Noo-oh. . . . I didn't say anything like that.

Soulliere: Well there's several cops coming this way so I need to know why you said what you said - - and what you said.

Thames: Uh, I think you should ask him [Parsley] because I think he's misrepresenting something that I must have said. I certainly - -

Soulliere: Well what did you say?

Thames: I didn't say that.

Soulliere: Well, what did you say?

Thames: I didn't say that.

Soulliere: Well, I understand that.

Thames: I didn't say that. I don't really know.

Soulliere: But what did you say?

Thames: What would I have said that would have made him [Parsley] say such a thing?

Soulliere: Well, I don't know. That's why we're here to investigate because he said that you said there is going to be a bombing.

Thames: I did not say that.

Soulliere: This is a pretty serious threat.

Thames: Right, and I think, I think he [Parsley] has an issue.

Soulliere: So, what did you say to him?

Thames: I didn't say that. I wasn't - -

Soulliere: Ma'am, I understand that you didn't say that to him. But what did you say? Can we get to the bottom of this?

Thames: I do not know. I do not know.

Soulliere: Ok, you don't know what you said to him?

Thames: I do not know what he's referring to. Period. I do not know.

Soulliere: Well what did you say to him?

Thames: I didn't really say anything.

[The nun walked over to intervene in this conversation.]

Nun: Why don't you have them both come together? Why don't you call them both here?

Thames: Do I need an attorney? Because - -Soulliere: Or you can just talk to me about what happened.

. . . [some repeated denials, rebuttals, and talking over each other]

Soulliere: Alright, well you won't even tell me what you said to him, so - -

Thames: It wasn't something for me to say that could be misconstrued.

Soulliere: Well, I've already explained to you what we've been called here for - -

Thames: I understand and it's a false call, sir.

Soulliere: Well, you won't even tell me what you said to him.

Thames: There is nothing I said that should be even misconstrued as such.

During this continued exchange, Thames explained to the officers that no one else had heard her conversation with Parsley. That is, clinic employee Mary Guilbernat did not hear the conversation with Parsley, but more importantly, Thames said that the nun did not actually hear it either.

Based on Parsley's accusation, including his written statement, and Thames's evasiveness with Officer Soulliere, Sergeant Brooks, the senior officer at the scene, ordered Thames arrested for making a terrorist threat in violation of M.C.L. § 750.543m, the section of the "Michigan Anti-Terrorism Act" titled "Making Terrorist Threat or False Report of Terrorism." Sergeant Brooks testified at his deposition in this case about his reasoning for the arrest:

Question: Are you aware that . . . at the scene, according to the video and Officer Gatti's testimony, the complaining witness [Parsley] says [that Thames said], 'I prophesy bombs, I prophesy bombs are going to fall and they're going to fall in the near future'?

. . .

And what does the complaining witness [Parsley] say in that written statement that my client [Thames] allegedly said?

. . .

Brooks: [Reading the written statement:] She said, 'Bombs, bombs on America and bombs will blow up this building.'

Question: Those aren't the same words he [Parsley] told to Officer Gatti [at the scene] as far as you understand; is that right?

Brooks: I don't know the exact verbiage that - - that he [Parsley] said to Officer Gatti. My - - there's only one word that concerns me in this whole thing and that's 'bombs.' Just like you can't yell 'fire' in a crowded theater, you can't say anything about bombs near a facility that performs abortions.

When this questioning continued:

Question: So what was the information - - back up - - was the information that Officer Gatti relayed to you [regarding Parsley's accusations that Thames had threatened a bombing] - - was that your basis for ordering the - - directing the arrest of my client [Thames]?

Brooks: The information that I was provided by Officer Gatti [i.e., Parsley's report of Thames's statements], and then Officer Soulliere also - - I talked to him briefly, and he was advising me that your client [Thames] was being very evasive and not answering any questions concerning her conversation with the security guard [Parsley].

Question: What specifically was the information that you relied on to direct the arrest of my client?

Brooks: Well, as I just stated, the information from Officer Gatti that the security guard had been told by her [Thames] that there was going to be bombs dropped or placed or somehow bombs were going to affect that facility and the fact that Officer Soulliere said that she [Thames] basically refused to say anything to him in regards to the conversation she and the security guard had. She was being very evasive.

Later in this deposition, Thames's attorney asked Sgt. Brooks about the fact that, while recording the events at the scene, one of the officers' field microphones recorded Brooks saying: "Anybody who has anything to do with this whole thing, they're fanatics." Sgt. Brooks answered that he was not referring to any one side of the abortion debate and that he meant a "fanatic" as just being someone who is extremely zealous on a certain topic—that is, he claimed that he was not favoring either position but meant both sides of the abortion issue were "fanatics." Thames has argued that this comment is proof of Brooks's animus against her beliefs and the motive for her arrest.

Back at the scene: when Officer Soulliere arrested and handcuffed Thames, she sought assistance from the nun, who intervened, claiming she had not heard Thames make any bomb threat, implied that Parsley was lying, and then harangued Soulliere, Gatti, and Brooks because they were not arresting the clinic's owner and employees for "killing God's children," were instead protecting "a Nazi concentration camp," and were "wrong" and "evil" for "abid[ing] by the Supreme Court's law" rather than "God's law." Eventually, Officer Gatti, clearly frustrated, retorted to the nun: "You shouldn't be in the position you are. You're a disgrace."

Meanwhile, Officer Halaas was called away to another location and had to remove Thames from his cruiser to Soulliere's cruiser. The video revealed his aggravation:

Halaas: [To

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