Lawsuit Document Included in this Article – Sonya Brown Sues Former and Current Council Members – Private Citizen – City Employees

Written by John Face

The document below is the actual lawsuit and is a public record being shared for your consumption.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SONYA KENETTE BROWN,
Plaintiff, COMPLAINT and JURY
DEMAND
v Case No.:
Hon.
CITY OF ALBION,
ALBERT SMITH, individually and in his official capacity as City Council Member for
the City of Albion, GLENIANE REID, individually and in her official capacity as City
Council Member for the City of Albion, SHANE WILLIAMSON, individually and in his
official capacity as City Council Member for the City of Albion, DAVID ATCHISON,
individually and in his official capacity as the Mayor of the City of Albion, SCOTT
KIPP, individually and in his official capacity as Chief of Public Safety for the City of
Albion, JASON KERN, individually and in his official capacity as the Deputy Chief of
Public Safety for the City of Albion, CULLEN HARKNESS, individually and in his
official capacity as City Attorney for the City of Albion, NICOLE WYGANT,
individually and in her official capacity as Detective/Sergeant for the City of Albion
Department of Public Safety, and BRUCE NELSON, in his individual capacity,
Defendants,

Eric J. Sheppard, P71914
Attorney for Plaintiff
2109 Hamilton Road, Suite 206
Okemos MI 48864
Ph: 517-618-1580
Fx: 517-913-6321
ericsheppard16@gmail.com

NOW COMES, the Plaintiff, Sonya Kenette Brown, by and through her attorney,
Eric J. Sheppard, and for her Complaint against the above-named Defendants and their
employees, agents, and successors in office, states as follows:
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INTRODUCTION

This is a case involving violations of the First Amendment, Fourteenth
Amendment, and Fourth Amendment – where Defendants engaged in an unlawful search,
conspired to retaliate against Plaintiff, and violated Plaintiff’s clearly established First
Amendment and Fourth Amendment rights – after Plaintiff engaged in protected political
speech involving a matter of public concern that was made in Plaintiff’s capacity as a
private citizen.
This case also involves an unconstitutional city charter provision, which was
weaponized to maliciously prosecute Plaintiff, without probable cause, in retaliation for
Plaintiff’s protected political speech, and in violation of Plaintiff’s clearly established
First Amendment and Fourth Amendment rights.
Finally, this case involves a municipal policy or custom of Defendants through
the unconstitutional city charter provision, and Defendants’ deliberate conduct, which
was the moving force that caused Plaintiff to be subjected to the deprivation of Plaintiff’s
clearly established First Amendment and Fourth Amendment rights. Kentucky v Graham,
473 US 159 (1985); Bd of Cty Comm’rs of Bryan Cty, Okl v Brown, 520 US 397 (1997);
City of St Louis v Praprotnik, 485 US 112 (1988).
Defendants are not entitled to qualified immunity for their conduct that violated
Plaintiff’s clearly established First Amendment and Fourth Amendment rights.
And political subdivisions of the state have no Eleventh Amendment protection
from suit in federal court. Moor v County of Alameda, 411 US 693 (1973); Northern Ins
Co of New York v Chatham County, Ga, 126 S Ct 1689 (2006).
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This case is brought under 42 USC § 1983, which provides that: Every person
who, under color of any statute, ordinance, regulation, custom or usage, of any
State…subjects, or causes to be subjected, any citizen of the United States…to the
deprivation of any rights, privileges, or immunities secured by the Constitution…shall be
liable to the party injured in an action at law.
Section 1983 is not itself a source of substantive rights; rather, it provides a
procedural vehicle for vindicating rights conferred by the United States Constitution or
federal statute. Albright v Oliver, 510 US 266 (1994).
A municipality or other local government body is a “person” under 42 USC §
1983, which may be held liable if the plaintiff can identify a municipal policy or custom
that caused the plaintiff’s injury. Bd of the County Comm’s of Bryan County v Brown,
520 US 397 (1997).
The plaintiff must identify a constitutional injury, a policy attributable to the
municipality or other local government body, and a causal relationship between that
policy and the claimed injury. City of Los Angeles v Heller, 475 US 796 (1986).
And a “policy” includes a “policy statement, ordinance, regulation, or decision
officially adopted and promulgated” by the government entity. Monell v Dep’t of Soc
Servs, 436 US 658 (1978).
First Amendment and Fourteenth Amendment
General Principles
This case involves protected free speech under the First Amendment.
The First Amendment to the United States Constitution provides that “Congress
shall make no law…abridging the freedom of speech.” US Const, Am I.
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The First Amendment applies to government action in the State of Michigan
through the Fourteenth Amendment. NAACP v Claiborne Hardware Co, 458 US 886
(1982).
The First Amendment applies to municipal governments. [“a government,
including a municipal government vested with state authority, ‘has no power to restrict
expression because of its message, its ideas, its subject matter or its content.’” Reed v
Town of Gilbert, Arizona, 135 S Ct 2218 (2015) (quoting Police Dep’t of Chicago v
Mosley, 408 US 92 (1972).
The First Amendment demands that courts “give the benefit of the doubt to
speech, not censorship.” Federal Election Comm’n v Wisconsin Right to Life, Inc, 551
US 449 (2007).
“If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.” Texas v Johnson, 491 US 397; 109 S Ct 2533
(1989).
“The hallmark of the protection of free speech is to allow ‘free trade in ideas’ –
even ideas that the overwhelming majority of people might find distasteful or
discomforting.” Virginia v Black, 538 US 343; 123 US 1536 (2003).
“Speech may not be banned on the ground that it expresses ideas that offend.”
Matal v Tam, 582 US __; 137 S Ct 1744 (2017).
And “speech cannot be restricted simply because it is upsetting or arouses
contempt.” Snyder v. Phelps, 562 US 443 (2011).
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“Speech is often provocative and challenging…[But it] is nevertheless protected
against censorship or punishment, unless shown likely to produce a clear and present
danger of a serious substantive evil that rises far above public inconvenience, annoyance
or unrest.’” City of Houston, Tex. v Hill, 482 US 451, 461; 107 S Ct 2502; 96 LEd2d 398
(1987) citing Terminiello v Chicago, 337 US 1, 4; 69 S Ct 894; 93 LEd 1131 (1949);
Leonard v Robinson, 477 F3d 347 (ED Mich., 2007).
“The government may not regulate [speech] based on hostility—or favoritism—
towards the underlying message expressed.” RAV v City of Saint Paul, Minnesota, 505
US 377, 386; 112 S Ct 2538; 120 L Ed 2d 305 (1992).
The government may not engage in a particular invidious kind of content
discrimination known as viewpoint discrimination. Rosenberger v Rector & Visitors of
Univ of Va, 515 US 819 (1995); Am Freedom Def Initiative v Suburban Movility Auth for
Reg’l Transp, 978 F3d 481 (6th Cir 2020).
“The First Amendment permits restrictions upon the content of speech in a few
limited areas, which are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality.” Black, 538 US at 358- 359.
The First Amendment applies to spoken words as well as electronic
communications. Id.; Packingham v North Carolina, 137 S Ct 1730 (2017).
And a State cannot punish citizens for engaging in constitutionally protected
speech. Wright v State of Georgia, 373 US 284 (1963); Johnson v State of Virginia, 373
US 61 (1963); Cox v State of Louisiana, 379 US 536 (1965); Brown v State of Louisiana,
383 US 131 (1966); Shuttlesworth v City of Birmingham, 394 US 147 (1969).
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Political Speech
The First Amendment is an important part of our system of self-government. It
specifically allows for the people “to petition the government for a redress of
grievances.” US Const, Am I. Near v Minnesota, 283 US 697 (1931).
And political speech is “at the core of what the First Amendment is designed to
protect.” Virginia v Black, 538 US 343 (2003).
Whatever differences may exist about interpretations of the First Amendment,
there is practically universal agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs. This, of course, includes discussions
of the candidates, structures, and forms of government, the manner in which government
is operated or should be operated, and all such matters relating to political processes.
Mills v Alabama, 384 US 214 (1966); Stromberg v California, 283 US 359 (1931) (“The
maintenance of the opportunity for free political discussion to the end that government
may be responsive to the will of the people and that changes may be obtained by lawful
means, an opportunity essential to the security of the Republic, is a fundamental principle
of our constitutional system”).
The First Amendment reflects “a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials.” NY Times Co v Sullivan, 376 US 254 (1964) (citing Terminiello v
Chicago, 337 US 1 (1949) and De Jonge v Oregon, 299 US 353 (1937).
Courts have recognized that the First Amendment “protects a significant amount
of verbal criticism and challenge directed at police officers. ‘Speech is often provocative
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and challenging…[But it] is nevertheless protected against censorship or punishment,
unless shown likely to produce a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance or unrest.’” City of Houston, Tex. v
Hill, 482 US 451, 461; 107 S Ct 2502; 96 LEd2d 398 (1987) citing Terminiello v
Chicago, 337 US 1, 4; 69 S Ct 894; 93 LEd 1131 (1949).
“One of the prerogatives of American citizenship is the right to criticize public
men and measures.” Baumgartner v. United States, 322 U.S. 665, 673–674 (1944). See
also Cohen v. California, 403 U.S. 15, 18 (1973); West Virginia State Bd. of Ed. v.
Barnette, 319 U.S. 624, 638 (1943).
In line with that concept, the United State Supreme Court has “repeatedly
invalidated laws that provide the police with unfettered discretion to arrest individuals for
words or conduct that annoy or offend them.” Hill, 482 U.S. at 465; Id. at 465 n.15
(listing examples).
Hill rejected the enforcement of a Houston law prohibiting speech that
“interrupt[s]” police. 482 U.S. at 462–463. To the contrary, “[t]he freedom of individuals

* * to oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police state.” [See
also Nieves v Bartlett, 139 SCt 1715 (2019) (Gorsuch, J., concurring in part) (“If the state
could use these laws not for their intended purposes but to silence those who voice
unpopular ideas, little would be left of our First Amendment liberties, and little would
separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”) Id.
at 1736.
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Qualified Immunity, the First Amendment, and Probable Cause to Arrest

Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
“Thus, a defendant 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.” Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011) (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)); see also Moderwell v. Cuyahoga
County, 997 F.3d 653, 659–660 (6th Cir. 2021); District of Columbia v. Wesby, 138 S.
Ct. 577, 589 (2018) (cleaned up).
“Once raised, the plaintiff bears the burden of showing that a defendant is not
entitled to qualified immunity.” Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011)
(citing Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006)); Rivas- Villegas v.
Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam); Cunningham v. Shelby County, 994 F.3d
761, 764–65 (6th Cir. 2021).
On summary judgment, a court views the factual evidence and draws all
reasonable inferences in favor of the non-moving party; but when a defendant raises the
defense of qualified immunity in a motion for summary judgment, the plaintiff must
show that those facts and inferences would allow a reasonable juror to conclude that the
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defendant violated a clearly established constitutional right. Barton v. Martin, 949 F.3d
938, 947 (6th Cir. 2020).
A government official’s conduct violates clearly established law when, at the time
of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (cleaned up); Anderson v Creighton, 483
US 635 (1987) [“The central concept is that of “fair warning.” Kinney v Weaver, 367 F3d
337 (5th Cir 2004) (en banc) (quoting Hope v Pelzer, 536 US 730 (2002)].
“To be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent.” Wesby, 138 S. Ct. 577, 589 (2018).
There does not need to be “a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at
741 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“The ‘clearly established’ standard also requires that the legal principle clearly
prohibit the officer’s conduct in the particular circumstances before him.” Wesby, 138 S.
Ct. at 590.
The Supreme Court has “repeatedly stressed that courts must not ‘define clearly
established law at a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she
faced.’” Id. (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).
“A rule is too general if the unlawfulness of the officer’s conduct ‘does not follow
immediately from the conclusion that [the rule] was firmly established.”’ Id. (quoting
Anderson, 483 U.S. at 641).
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But “there can be the rare ‘obvious case,’ where the unlawfulness of the officer’s
conduct is sufficiently clear even though existing precedent does not address similar
circumstances.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
“Thus, when ‘no reasonable . . . officer could have concluded’ that the challenged
action was constitutional, the Supreme Court has held that there does not need to be a
case directly on point.” Moderwell, 997 F.3d at 660 (quoting Taylor v. Riojas, 141 S. Ct.
52, 53 (2020)); see also McCoy v. Alamu, 141 S. Ct. 1364 (2021).
To defeat qualified immunity, a plaintiff must show that government officials
violated the plaintiff’s First Amendment rights and that their actions were objectively
unreasonable in light of clearly established law. Powers v Northside Indep Sch Dist, 951
F3d 298 (5th Cir 2020).
And “officials can still be on notice that their conduct violates established law
even in novel factual circumstances.” Hope, 536 US at 741 [“[A] general constitutional
rule already identified in the decisional law may apply with obvious clarity to the specific
conduct in question, even though the very action in question has [not] previously been
held unlawful.” (quoting Anderson, 483 US at 640)].
The doctrine of qualified immunity does not always require the plaintiff to cite
binding case law involving identical facts.
An official who commits a patently “obvious” violation of the Constitution is not
entitled to qualified immunity. Hope, 536 US at 745.
There is no recognized right to be free from a retaliatory arrest that is supported
by probable cause. Reichle v. Howards, 566 U.S. 658, 663 (2012).
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But in order for an arrest to survive constitutional scrutiny, the government
officials must have had probable cause to believe that the person arrested committed the
offense charged. Hunter v Bryant, 502 US 224; 112 SCt 534 (1991).
For probable cause to exist, “the facts and circumstances known to the officer”
must be sufficient to lead a “prudent man” to believe an offense has been committed.
Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (citation omitted).
Probable cause is an issue of fact for the jury to resolve if there are any genuine
issues of material fact that are relevant to the inquiry. St John v Hickey, 411 F3d 762 (6th
Cir 2005).
Further, “protected speech cannot serve as the basis” for probable cause. Leonard
v. Robinson, 477 F.3d 347, 358 (6th Cir. 2007) (citing Sandul v. Larion, 119 F.3d 1250,
1256 (6th Cir. 1997)) [an officer may not base his or her probable cause determination on
speech protected by the First Amendment].
While protected speech can be evidence that a speaker committed a separate
crime, the First Amendment bars its use as the sole basis for probable cause. See Reichle,
566 U.S. at 668; see also Nieves v. Bartlett, 139 S. Ct. 1715, 1722, 1724 (2019); Novak v
City of Parma, 932 F.3d at 431–32.
And if the freedom of speech secured by the First Amendment includes the right
to curse at a public official, then it surely includes the right to say “[get] rid of” a public
official. Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942) (“‘You are a God
damned racketeer’ and ‘a damned Fascist’”); Sandul v. Larion, 119 F.3d 1250, 1255 (6th
Cir. 1997) (“In 1990 when [the defendant] was arrested for his use of the ‘f – word,’ it
was clearly established that speech is entitled to First Amendment protection.”); Buffkins
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v. City of Omaha, 922 F.2d 465, 467 (8th Cir. 1990) (“I will have a nice day, asshole.”)
[Smith ex rel Smith v Mt Pleasant Public Schools, 285 F Supp 2d 987 (ED Mich 2003) –
finding a state law that permitted school discipline for “verbal assault” unconstitutional
(“However, the policy’s language also would allow curtailment of speech that questions
the wisdom or judgment of school administrators and their policies, or challenges the
viewpoints of students in strong or even insulting terms. For instance, student
commentary questioning the competence of a teacher, or advocating that a school
district employee should be fired, or criticizing a fellow student as morally bereft, or
complaining that a coach gives more playing time to an inferior athlete because of
personal favoritism, all can be found to threaten the dignity or well-being of the targets of
the criticism, who undoubtedly would take offense at the comments. As the Third Circuit
notes, however, “[t]he Supreme Court has held time and again, both within and outside of
the school context, that the mere fact that someone might take offense at the content of
speech is not sufficient justification for prohibiting it.” Saxe v State College Area School
District, 240 F3d 200 (3d Cir 2001)] (emphasis added).
The focus must be on the facts within the government’s knowledge at the moment
of the arrest or charge [the probable cause inquiry focuses on facts within the arresting
officer’s knowledge at the time of the arrest; Hunter v Bryant, 502 US 224; 112 SCt 534
(1991).
And a trial court is required to consider the facts in the light most favorable to the
plaintiff for a summary judgment motion. Champion v Outlook Nashville, Inc, 380 F3d
893 (6th Cir 2004).
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Public Employee and Speech as a Matter of Public Concern
Public employees do not surrender all of their First Amendment rights by reason
of their employment. Garcetti v Ceballos, 126 S Ct 1951 (2006).
Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a private citizen addressing matters of public concern.
Pickering v Board of Ed of Township High School Dist 205, Will Cty, 391 US 563
(1968); Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United
States v. Treasury Employees, 513 U. S. 454, 466 (1995).
[Pickering and the cases decided in its wake identify two inquiries to guide interpretation
of the constitutional protections accorded to public employee speech. The first requires
determining whether the employee spoke as a citizen on a matter of public concern. Id. at
If the answer is no, the employee has no First Amendment cause of action based on
his or her employer’s reaction to the speech. See Connick, supra, at 147. If the answer is
yes, then the possibility of a First Amendment claim arises. The question becomes
whether the relevant government entity had an adequate justification for treating the
employee differently from any other member of the general public. See Pickering, 391 U.
S., at 568. This consideration reflects the importance of the relationship between the
speaker’s expressions and employment. A government entity has broader discretion to
restrict speech when it acts in its role as employer, but the restrictions it imposes must be
directed at speech that has some potential to affect the entity’s operations].
The First Amendment limits the ability of a public employer to leverage the
employment relationship to restrict, incidentally or intentionally, the liberties employees
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enjoy in their capacities as private citizens. See Perry v. Sinder- mann, 408 U. S. 593,
597 (1972).
So long as employees are speaking as citizens about matters of public concern,
they must face only those speech restrictions that are necessary for their employers to
operate efficiently and effectively. See, e.g., Connick, supra, at 147 (Our responsibility is
to ensure that citizens are not deprived of fundamental rights by virtue of working for the
government).
The First Amendment protects some expressions related to the speaker’s job.
Givhan v. Western Line Consol School Dist,, 439 U. S. 410, 414 (1979). [As the Court
noted in Pickering: Teachers are, as a class, the members of a community most likely to
have informed and definite opinions as to how funds allotted to the operation of the
schools should be spent. Accordingly, it is essential that they be able to speak out freely
on such questions without fear of retaliatory dismissal. 391 U. S., at 572. The same is true
of many other categories of public employees.]
Employees who make public statements outside the course of performing their
official duties retain some possibility of First Amendment protection because that is the
kind of activity engaged in by citizens who do not work for the government. The same
goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing
politics with a co-worker, see Rankin, 483 U. S. 378.
Speech involves a matter of public concern when it can be “fairly considered
as relating to any matter of political, social, or other concern to the community.” Connick
v Myers, 461 US 138 (1983) [“subject of general interest and of value and concern to the
public.” City of San Diego v Roe, 543 U.S. 77, 84 (2004) (per curiam)].
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To resolve the public/private distinction, we look to the “content, form, and
context of a given statement, as revealed by the whole record.” Mosholder v Barnhardt,
679 F.3d 443, 449–50 (6th Cir. 2012) (quoting Connick, 461 U.S. at 147–48).
And in undertaking that analysis, we set aside the shocking and no doubt painful
aspects of any comments that are made. For whether speech is shocking or inappropriate
is irrelevant to whether it concerns a public matter. Rankin v McPherson, 483 U.S. 378,
387 (1987).
The First Amendment is not so fragile that its guarantees rise or fall with the
pronouns a speaker selects.
And expressions of opinion, even distasteful ones, do not become matters of
personal interest simply because they are phrased in the first person or reflect a personal
desire. See, e.g., Rankin, 483 U.S. at 381 (holding that an employee’s statement to a coworker that, “if they go for him again, I hope they get him,” in reference to the
assassination attempt on President Reagan, was speech on a matter of public concern)
[Instead of commenting on a personal grievance, the poster remarked on a “subject of
general interest and of value and concern to the public.” Lane v. Franks, 573 U.S. 228,
241 (2014) (describing a “subject of legitimate news interest”); see also Roe, 543 U.S. at
Said differently, the posts addressed a “subject” one could envision “stepping up to
the microphone” to discuss in the traditional public square. See Dambrot v. Central Mich.
Univ., 55 F.3d 1177, 1188 (6th Cir. 1995) (quoting Dambrot v. Central Mich. Univ., 839
F. Supp. 477, 487 (E.D. Mich. 1993))].
Further, the “public concern/private interest analysis does not require that a
communication be utterly bereft of private observations or even expressions of private
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interest.” Mosholder, 679 F.3d at 450–51 (citing Perry v. McGinnis, 209 F.3d 597, 609
(6th Cir. 2000)); see also Westmoreland v. Sutherland, 662 F.3d 714, 719 (6th Cir. 2011)
(holding that it is not “necessary for the entire expression to address matters of public
concern, as long as some portion of the speech does” (citation omitted)). Rather, the
relevant question is whether the communication “touches ‘upon matters only of personal
interest.’” Mosholder, 679 F.3d at 450 (quoting Connick, 461 U.S. at 147).
Moreover, speech need not be communicated to the general public to be on a
matter of public concern. See Handy-Clay, 695 F.3d at 544. [Keep in mind that the very
genesis behind Facebook and other social media platforms is to allow one the opportunity
to share messages and opinions with a wide audience. That reality, in fact, has made
social media perhaps the primary venue for exchanging ideas on public issues. See
Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017) (referring to social media
as “the modern public square”).
Whether one’s public expression comes from the ink of a quill pen, the stroke of a
keyboard, or the tapping of an iPhone, that expression is entitled to First Amendment
protection under the same strictures. See Id. at 1735–36.
Fourth Amendment
General Principles
This case also involves the Fourth Amendment.
This case involves an unlawful search of an electronic device and the social media
messenger accounts of City of Albion government officials, which implicates the Fourth
Amendment of the United States Constitution.
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The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures.” US
Const, Amend IV; United States v Jones, 565 US 400 (2012).
“The Fourteenth Amendment, as now applied to the States, protects the citizen
against the State itself and all of its creatures.” West Virginia State Bd of Educ v Barnette,
319 US 624 (1943).
Government officials are state actors for purposes of the Fourth Amendment and
are subject to the constitutional prohibition on unreasonable searches and seizures. New
Jersey v TLO, 469 US 325 (1985); Andrews v Hickman County, Tennessee, 700 F3d 845
(6th Cir 2012) [Fourth Amendment’s restrictions on unreasonable searches extended to
the “activities of civil as well as criminal authorities.” citing New Jersey v TLO; Id.].
And the Fourth Amendment applies when the government acts in its capacity as
an employer. Treasury Employees v Von Raab, 489 US 656 (1989).
Further, individuals do not lose their Fourth Amendment rights merely because
they work for the government instead of a private employer. O’Connor v Ortega, 480 US
709 (1987) [“non-investigatory, work-related purpose[e]” or for the “investigation[n] of
work-related misconduct”].
A Fourth Amendment search “occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.” Kyllo v United States, 533
US 27 (2001); California v Ciraolo, 47 US 207 (1986); Florida v Riley, 488 US 445
(1989) [upholding search where governmental officials, lawfully in a public place, do not
conduct unlawful searches, by observing things in plain view] [The Fourth Amendment
protects certain expectations of privacy. Katz v United States, 389 US 347 (1967)].
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“As a general matter, ‘warrantless searches are presumptively unreasonable,’
Horton v. California, 496 U.S. 128, 133 (1990)…” Braam v. Carr, 20-1059 (7th Cir June
21, 2022).
“The Fourth Amendment prohibits only unreasonable searches. The
reasonableness of a search depends on the totality of the circumstances, including the
nature and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations.” Id. at 310.
Assessing reasonableness under the totality of the circumstances requires “a
balancing of individual privacy interests and legitimate state interests to determine the
reasonableness of the category of warrantless search that is at issue.” Birchfield v. North
Dakota, 136 S.Ct. 2160, 2185 n.8 (2016); see also Wyoming v. Houghton, 526 U.S. 295,
299-300 (1999).
Fourth Amendment Standing
Because the Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,”
U.S. Const. amend. IV (emphasis added), Fourth Amendment rights are said to be
“personal.” Rakas v. Illinois, 439 U.S. 128, 133 (1978) (citation omitted).
So a defendant must show that “his own” rights were “infringed.” Byrd v. United
States, 138 S. Ct. 1518, 1526 (2018) (quoting Rakas, 439 U.S. at 133).
Courts use “standing” as a “shorthand” for this requirement. Id. at 1530.
And a defendant has standing only if he has a Fourth Amendment interest in the
property searched. Byrd, 138 S. Ct. at 1530.
This interest can either be a property or a privacy interest. Id. at 1526.
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When an individual “seeks to preserve something as private,” and his or her
expectation of privacy is “one that society is prepared to recognize as reasonable,” then
official intrusion into that sphere generally qualifies as a search and requires a warrant
supported by probable cause. Smith v Maryland, 442 US 735 (1979). (emphasis added).
“In City o f Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216
(2010), the United States Supreme Court assumed, without deciding, that citizens do have
a reasonable expectation of privacy in their text messages, but upheld a police
department’s review of an officer’s text messages as reasonable under the Fourth
Amendment.” State v Hinton, 179 Wash 2d 862 (2014); [see also People v Katzman, 330
Mich App 128 (2019) (distinguishing Hinton because there was a lawful search warrant
in Katzman).
“Several lower courts have held that people have an expectation of privacy under
the Fourth Amendment in the content stored on their cell phones, including text
messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008); United States
v. Finley, 477 F.3d 250, 259 (5th Cir. 2007); United States v. Davis, 787 F. Supp. 2d
1165, 1170 (D. Or. 2011); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D.
Fla. 2009). Other courts have found a privacy interest in text messages stored by a service
provider. See Missouri v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012); State v.
Bone, 12-34 (La. App. 5 Cir. 09/11/12); 107 So. 3d 49,63-67. Fewer courts have
addressed the privacy interests of a sender when police access a sender’s text messages on
a recipient’s device. Compare State v. Patino, No. P1-10-1155A, slip op. (R.I. Super. Ct.
Sept. 4, 2012) (finding sender had reasonable expectation of privacy in sent text
messages accessed by police during search of recipient’s cell phone), with Fetsch v. City
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of Roseburg, 2012 WL 6742665 (D. Or. Dec. 31, 2012) (finding sender had no
reasonable expectation of privacy in text messages once sent to a third party).” Hinton,
supra.
Probable Cause to Arrest
“Probable cause exists when all of the facts known by a police officer ‘are
sufficient for a reasonable person to conclude that the suspect had committed, or was in
the process of committing, an offense.’” Texas v. Kleinert, 855 F.3d 305, 316 (5th Cir.
2017) (quoting United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc)).
Courts look to whether a reasonable officer would believe each element of the
offense of arrest for the case. Logsdon v Hains, 492 F3d 334 (6th Cir 2007).
Fourth Amendment and Qualified Immunity
“[T]he fact that a neutral magistrate has issued a warrant authorizing the allegedly
unconstitutional search or seizure does not end the inquiry into objective reasonableness.”
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).
Even when officers obtain an arrest warrant from a magistrate, we ask “whether a
reasonably well-trained officer in [the defendants’] position would have known that his
affidavit failed to establish probable cause and that he should not have applied for a
warrant.” Jennings v. Joshua Indep. Sch. Dist., 877 F.2d 313, 317 (5th Cir. 1989)
(quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)).
“Defendants will not be immune if, on an objective basis, it is obvious that no
reasonably competent officer would have concluded that a warrant should issue.” Malley,
475 U.S. at 341.
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A reasonably well-trained officer would have understood that arresting a city
council member for private electronic messages, which were protected speech, clearly
violates the First Amendment.
“A government official may not base her probable cause determination on an
‘unjustifiable standard,’ such as speech protected by the First Amendment.” Mink v.
Knox, 613 F.3d 995, 1003–04 (10th Cir. 2010) (quoting Wayte v. United States, 470 U.S.
598, 608 (1985)). See also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 2006)
(“[A]n officer may not base his probable-cause determination on speech protected by the
First Amendment.”).
Legal Violations and Requested Relief
Defendants acted outside of the scope of their authority and violated Plaintiff’s
clearly established rights under the First Amendment and Fourth Amendment.
Plaintiff’s words and conduct in this case constitute protected speech under the
First Amendment. Reno v ACLU, 521 US 844; 117 S Ct 2329 (1997); Kaplan v
California, 413 US 115; 93 S Ct 2680 (1973); James v Meow Media, Inc, 300 F3d 683
(6th Cir 2002).
Plaintiff’s words and conduct in this case did not present some grave and
imminent threat that the government has the power to prevent. Near v Minnesota ex rel
Olson, 283 US 697; 51 S Ct 625 (1931).
Plaintiff’s words and conduct in this case did not constitute fighting words.
Chaplinsky v New Hampshire, 315 US 568; 62 S Ct 766 (1942).
Plaintiff’s words and conduct in this case were not speech that was integral to
criminal conduct. Giboney v Empire Storage & Ice Co, 336 US 490; 69 S Ct 684 (1949).
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Plaintiff’s words and conduct in this case did not constitute defamation. New York
Times Co v Sullivan, 376 US 254; 84 S Ct 710 (1964).
Plaintiff’s words and conduct in this case did not constitute incitement to
imminent lawlessness. Brandenburg v Ohio, 395 US 444; 89 S Ct 1827 (1969).
Plaintiff’s words and conduct in this case did not constitute fraud. Virginia Bd of
Pharmacy v Virginia Citizens Consumer Council, Inc, 425 US 748; 96 S Ct 1817 (1976).
Plaintiff’s words and conduct in this case were not child pornography. New York v
Ferber, 458 US 747; 102 S Ct 3348 (1982).
Plaintiff’s words and conduct in this case were not vulgar, lewd, indecent, or
obscene. Bethel School District No 403 v Fraser, 478 US 675; 106 S Ct 3159 (1986);
Miller v California, 413 US 15; 93 S Ct 2607 (1973).
Plaintiff’s words and conduct in this case were not part of any school-sponsored
activity. Hazelwood School District v Kuhlmeier, 484 US 260; 108 S Ct 562 (1988).
Plaintiff’s words and conduct in this case did not advocate illegal drug use. Morse
v Frederick, 551 US 593; 127 S Ct 2618 (2007).
Plaintiff’s words and conduct in this case were not a “true threat” as defined under
state and federal jurisprudence. (“encompass[ing] those statements where the speaker
means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals”).
Plaintiff’s words and conduct in this case were not communication made “for the
purpose of issuing a threat, or with knowledge that the communication will be viewed as
a threat,” and could not possibly be considered a true threat under state and federal law.
Virginia v Black, 538 US 343 (2003); People v Gerhard, COA: 354369 (Mich App
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2021), Published June 24, 2021; In re JP, 330 Mich App 1; 944 NW2d 422 (2019);
Elonis v United States, 575 US 723; 135 S Ct 2001 (2015); People v Osantowski, 274
Mich App 593; 736 NW2d 289 (2007).
And Plaintiff did not otherwise threaten, intimidate, harass, or coerce any person
in this case.
Plaintiff is not being investigated for, and has not been charged with: (a)
terroristic threats under MCL 750.543m and MCL 750.543b(a), (b) transmitting in
interstate commerce “any communication containing any threat…to injure the person of
another” under 18 USC § 875(c), or (c) any other state or federal crime involving threats
or intimidation or any other violation of law.
And Plaintiff’s words and conduct do not constitute any other category of
unprotected speech under state or federal law.
Further, Defendants committed First Amendment retaliation against Plaintiff.
Thaddeus-X v Blatter, 175 F3d 378 (6th Cir 1999).
Further, Defendants illegally searched Plaintiff’s social media account, where
Plaintiff had a protected privacy interest and a reasonable expectation of privacy in such
social media account, in violation of the Fourth Amendment.
Further, Defendants arrested and maliciously prosecuted Plaintiff, without
probable cause, and in retaliation for Plaintiff’s protected speech, in violation of the First
Amendment and Fourth Amendment.
Further, Defendants had an official municipal policy that was unconstitutional
on its face and as applied (city charter section 5.8), had an unofficial custom and
practice that was unconstitutional – with actual or constructive knowledge from
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those at the policy making level (city charter section 5.8; illegally searching Plaintiff’s
social media account; voting to hire and hiring a special prosecutor to prosecute Plaintiff
for Plaintiff’s exercise of free speech), acted with deliberate indifference and failed to
train and supervise its employees where there was an obvious need to train and
supervise (in First Amendment law and precedent and Fourth Amendment law and
precedent). Further, the decisions or acts of the final policy makers for this case, even a
single decision to take unlawful action by such municipal policy makers, are
unconstitutional and give rise to liability for Defendants. Monell v City of New York City
Dep’t of Social Servs, 436 US 658 (1978); Pembaur v City of Cincinnati, 475 US 469
(1986); City of Canton v Harris, 489 US 378 (1989); Burgess v Fischer, 735 F3d 462
(6th Cir 2013). This violated Plaintiff’s clearly established rights.
Further, there is no sufficient post-deprivation remedy sufficient to absolve
Defendants of its constitutional violations in this case. Parratt v Taylor, 451 US 527; 101
S Ct 1908 (1981).
Further, the city charter section 5.8 is an unconstitutional policy, procedure,
custom, and practice, as applied to Plaintiff and facially.
Further, Defendants conspired to violate Plaintiff’s First Amendment and Fourth
Amendment rights. 42 USC § 1985.
This case seeks to protect and vindicate statutory and fundamental, clearly
established constitutional rights.
Plaintiff brings a civil rights action under the First Amendment and Fourth
Amendment and Fourteenth Amendment to the United States Constitution and 42 USC §
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1983 and for other statutory and constitutional violations, challenging Defendants’ acts,
policies, practices, customs, and procedures, which deprived Plaintiff of her rights.
Plaintiff brings this action for money damages in the amount of 5 million
dollars – for compensatory and punitive damages – for Plaintiff’s sustained and
continued injuries, including but not limited to, pain and suffering, mental anguish, fright,
shock, embarrassment, humiliation, mortification, damage to reputation, disruption of
personal life, loss of enjoyment of the ordinary pleasures of living, medical conditions,
post traumatic stress, loss of employment, and other damages known and unknown, as
well as the following:
A. prospective injunctive and declaratory relief compelling Defendants to comply
with federal law and to end a continuing and ongoing violation of federal law and
Plaintiff’s clearly established rights, including, but not limited to, violation of
Plaintiff’s First Amendment rights and violation of Plaintiff’s Fourth Amendment
rights. Ex Parte Young, 209 US 123; 28 S Ct 441 (1908); S & M Brands, Inc v
Cooper, 527 F 3d 500 (6th Cir 2008)
B. a declaration that Defendants acted unconstitutionally and violated Plaintiff’s
clearly established rights by Defendants’ continuing and ongoing violation of
federal law, including, but not limited to, violation of Plaintiff’s First Amendment
rights and violation of Plaintiff’s Fourth Amendment rights
C. a declaration that the section of the city charter 5.8 be declared unconstitutional
D. for changes to the policies, practices, customs, and procedures of Defendants
regarding punishing citizens and city council members for constitutionally
protected speech
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E. for changes to the policies, practices, customs, and procedures of Defendants
regarding warrantless and suspicionless searches of an electronic device and
social media accounts
F. for an award of reasonable costs of litigation, including attorney fees and costs,
pursuant to 42 USC § 1988 and other applicable law
JURISDICTION AND VENUE
This case arises under the Constitution and laws of the United States and of the
State of Michigan.
Jurisdiction is conferred on the Honorable Court pursuant to 28 USC § 1331, 28
USC § 1343, 42 USC § 1983, 42 USC § 1985, 42 USC § 1986, 42 USC § 1988, and other
Federal and State laws and regulations – to redress violations of federal statutes and state
law.
The Honorable Court has supplemental jurisdiction regarding state law claims
pursuant to 28 USC § 1367 because the state claims arise out of the same nexus of facts
and events.
This case arises from events that occurred in Calhoun County, which is in the
Southern District. 28 USC § 102(b).
The Honorable Court has subject matter jurisdiction pursuant to Article III of the
United States Constitution, 28 USC § 1331 and 28 USC § 1343(a)(1), (2), (3), and (4).
Declaratory relief and injunctive relief is authorized pursuant to the Declaratory
Judgment Act, 28 USC § 2201 and 28 USC § 2202, by Rule 57 and Rule 65 of the
Federal Rules of Civil Procedure, by the All Writs Act, 28 USC § 1651, and by the
general legal and equitable powers of this court.
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Plaintiff’s claims for damages are authorized pursuant to 42 USC § 1983, 42 USC
2000d-7, and by the general legal and equitable powers of this court.
The amount in controversy exceeds the jurisdictional minimum of $75,000.00.
Venue is appropriate pursuant to 28 USC § 1391. The individual defendants are
residents in the State in which this district is located and a substantial part of the events or
omissions giving rise to the claims occurred in this district.
Plaintiff’s claims are timely filed within the applicable statute of limitations. Heck
v Humphrey, 512 US 477; 114 SCt 2364 (1994); Shamaeizadeh v Cunigan, 182 F3d 391
(6th Cir 1999).
PARTIES
Plaintiff is a citizen of the United States, a citizen of the State of Michigan, and is
domiciled in Calhoun County, Michigan.
Defendant, City of Albion, is a municipal entity, which is located in Calhoun
County, Michigan. City of Albion is established and organized under, and pursuant to,
the laws of the State of Michigan, with the authority to sue and be sued in its own name.
City of Albion has functions that include, but are not limited to, organizing, operating,
staffing, training, and supervising the staff and governing members of the City of Albion.
City of Albion is responsible for the managing, adopting, implementing, and enforcing of
all procedures, policies, customs, and practices, including, but not limited to the City of
Albion Charter and Code of Ordinances. City of Albion Department of Public Safety is a
municipal subdivision and administrative arm of the City of Albion. Padilla v Twp of
Cherry Hill, 110 F App’x 272 (3rd Cir 2004). Further, at all times relevant, City of
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Albion acted and continues to act under color of state law. City of Albion violated
Plaintiff’s clearly established constitutional rights.
Defendant, Albert Smith, was a City of Albion council member during all relevant
times, and is an adult resident of the State of Michigan. Smith is being sued in his
individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Smith was an agent or employee of City of Albion and
acted or failed to act within the scope, course, and authority of his employment. Smith is
responsible for the organizing, operating, staffing, training, and supervising the staff and
agents of the City of Albion. Smith is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
Ordinances. At all times relevant, Smith acted under color of law. Smith violated
Plaintiff’s clearly established constitutional rights.
Defendant, Gleniane Reid, was a City of Albion council member during all
relevant times, and is an adult resident of the State of Michigan. Reid is being sued in her
individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Reid was an agent or employee of City of Albion and
acted or failed to act within the scope, course, and authority of her employment. Reid is
responsible for the organizing, operating, staffing, training, and supervising the staff and
agents of the City of Albion. Reid is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
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Ordinances. At all times relevant, Reid acted under color of law. Reid violated Plaintiff’s
clearly established constitutional rights.
Defendant, Shane Williamson, was a City of Albion council member during all
relevant times, and is an adult resident of the State of Michigan. Williamson is being sued
in his individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Williamson was an agent or employee of City of Albion
and acted or failed to act within the scope, course, and authority of his employment.
Smith is responsible for the organizing, operating, staffing, training, and supervising the
staff and agents of the City of Albion. Williamson is responsible for the managing,
adopting, implementing, and enforcing of all City of Albion procedures, policies,
customs, and practices, including, but not limited to, the City of Albion Charter and Code
of Ordinances. At all times relevant, Williamson acted under color of law. Williamson
violated Plaintiff’s clearly established constitutional rights.
Defendant, David Atchison, was a City of Albion council member during all
relevant times, and is an adult resident of the State of Michigan. Atchison is being sued in
his individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Atchison was an agent or employee of City of Albion and
acted or failed to act within the scope, course, and authority of his employment. Atchison
is responsible for the organizing, operating, staffing, training, and supervising the staff
and agents of the City of Albion. Atchison is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
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Ordinances. At all times relevant, Atchison acted under color of law. Atchison violated
Plaintiff’s clearly established constitutional rights.
Defendant, Scott Kipp, was the City of Albion Chief of Public Safety during all
relevant times, and is an adult resident of the State of Michigan. Kipp is being sued in his
individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Kipp was an agent or employee of City of Albion and
acted or failed to act within the scope, course, and authority of his employment. Kipp is
responsible for the organizing, operating, staffing, training, and supervising the staff and
agents of the City of Albion. Kipp is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
Ordinances. At all times relevant, Kipp acted under color of law. Kipp violated Plaintiff’s
clearly established constitutional rights.
Defendant, Jason Kern, was the City of Albion Deputy Chief of Public Safety
during all relevant times, and is an adult resident of the State of Michigan. Kern is being
sued in his individual and official capacity for declaratory and injunctive relief and for
money damages. At all times relevant, Kern was an agent or employee of City of Albion
and acted or failed to act within the scope, course, and authority of his employment. Kern
is responsible for the organizing, operating, staffing, training, and supervising the staff
and agents of the City of Albion. Kern is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
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Ordinances. At all times relevant, Kern acted under color of law. Kern violated Plaintiff’s
clearly established constitutional rights.
Defendant, Cullen Harkness was the City of Albion City Attorney during all
relevant times, and is an adult resident of the State of Michigan. Harkness is being sued
in his individual and official capacity for declaratory and injunctive relief and for money
damages. At all times relevant, Harkness was an agent or employee of City of Albion and
acted or failed to act within the scope, course, and authority of his employment. Harkness
is responsible for the organizing, operating, staffing, training, and supervising the staff
and agents of the City of Albion. Harkness is responsible for the managing, adopting,
implementing, and enforcing of all City of Albion procedures, policies, customs, and
practices, including, but not limited to, the City of Albion Charter and Code of
Ordinances. At all times relevant, Harkness acted under color of law. Harkness violated
Plaintiff’s clearly established constitutional rights.
Defendant, Nicole Wygant, was a Detective/Sergeant for the City of Albion
Department of Public Safety during all relevant times, and is an adult resident of the State
of Michigan. Wygant is being sued in her individual and official capacity for declaratory
and injunctive relief and for money damages. At all times relevant, Wygant was an agent
or employee of City of Albion and acted or failed to act within the scope, course, and
authority of his employment. Wygant is responsible for the organizing, operating,
staffing, training, and supervising the staff and agents of the City of Albion. Wygant is
responsible for the managing, adopting, implementing, and enforcing of all City of
Albion procedures, policies, customs, and practices, including, but not limited to, the City
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of Albion Charter and Code of Ordinances. At all times relevant, Wygant acted under
color of law. Wygant violated Plaintiff’s clearly established constitutional rights.
Defendant, Bruce Nelson, is an adult resident of the State of Michigan. Nelson
conspired with the other defendants to violate Plaintiff’s clearly established rights.
STATEMENT OF FACTS
On November 3, 2016, Plaintiff was duly elected to serve a four-year term as a
council member for the City of Albion.
Between November 2016 and November 2018, Plaintiff served as a council
member for the City of Albion.
Plaintiff was an outspoken and dedicated public servant.
By November 2018, Plaintiff was also the Mayor Pro Tem for the City of Albion.
In November 2018, Garrett Brown was the serving Mayor for the City of Albion.
In November 2018, LaTonya Rufus was the serving City Manager for the City of
Albion.
Rufus began serving as the city manager on or about October 2018.
In November 2018, Defendant, Albert Smith, was a serving council member for
the City of Albion.
In November 2018, Defendant, Gleniane Reid, was a serving council member for
the City of Albion.
In November 2018, Defendant, Shane Williamson, was a serving council member
for the City of Albion.
In November 2018, Defendant, David Atchison, was the incoming Mayor for the
City of Albion.
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In November 2018, Defendant, Scott Kipp, was the serving Chief of Public Safety
for the City of Albion.
In November 2018, Defendant, Jason Kern, was the serving Deputy Chief of
Public Safety for the City of Albion.
In November 2018, Defendant, Cullen Harkness, was the serving City Attorney
for the City of Albion.
In November 2018, Defendant, Nicole Wygant, was a serving member of the City
of Albion Department of Public Safety, upon information and belief.
In November 2018, Defendant, Bruce Nelson, was a citizen residing in the City of
Albion.
In November 2018, Plaintiff, Mayor Garrett Brown, and LaTonya Rufus were
friends who socialized together and spoke and communicated with each other outside of
their respective roles as council member/Mayor Pro Tem (Plaintiff), Mayor (Garrett
Brown), and City Manager (Rufus).
In October 2018, Plaintiff, Garrett Brown, and LaTonya Rufus set up and
established a Facebook Messenger Group Chat.
Facebook Messenger is a proprietary instant messaging application and platform
developed by Meta Platforms and originally developed as Facebook Chat in 2008.
Facebook Messenger, through Meta, is a private platform that is used to send
messages and exchange photographs, videos, stickers, audio, and files, which also
supports voice and video calling.
October-November 2018
Garrett Brown created the Facebook Messenger Group Chat on October 22, 2018.
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Garrett Brown, LaTonya Rufus, and Plaintiff were the three participants of the
Facebook Messenger Group Chat.
At all times relevant to this case, Plaintiff accessed the Facebook Messenger
Group Chat through her private cellular phone, which was not issued through the City of
Albion and not connected to the City of Albion in any way.
In October 2018, Garrett Brown was the soon to be outgoing mayor for the City
of Albion, with David Atchison being elected as mayor for the City of Albion.
In October 2018, Plaintiff was a serving city council member for the City of
Albion.
In October 2018, LaTonya Rufus had just become the City Manager for the City
of Albion.
The Facebook Messenger Group Chat functionality allows for group participants
to make voice calls to one another and to send written messages to one another.
The entire Facebook Messenger Group Chat between Garrett Brown, LaTonya
Rufus, and Plaintiff – from its creation until its last message – is attached as Exhibit 1.
(Facebook Messenger Group Chat, Exhibit 1).
Exhibit 1 must be taken as a collective whole for the background and context of
the verbal conversations and the written communication between Garrett Brown,
LaTonya Rufus, and Plaintiff between October 22, 2018 (creation of Facebook
Messenger Group Chat) and November 30, 2018 (last written message of the Facebook
Messenger Group Chat).
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All verbal conversations and all written communication from Exhibit 1 took
place outside of any work hours for Garrett Brown, LaTonya Rufus, and Plaintiff in their
capacity as Mayor, City Manager, and council member/Mayor Pro Tem.
All verbal conversations and all written communication from Exhibit 1
constituted personal time for Garrett Brown, LaTonya Rufus, and Plaintiff.
None of the verbal conversations and written communication from Exhibit 1
constituted any formal meeting or formal business for the City of Albion.
Garrett Brown, LaTonya Rufus, and Plaintiff were speaking as private citizens,
and in their capacity as private citizens, for all verbal and all written communication from
Exhibit 1.
Exhibit 1 starts with two audio calls, equivalent to a phone call, between Garrett
Brown, LaTonya Rufus, and Plaintiff on October 22, 2018.
The second audio call started at 9:16 p.m. and ended at 10:47 p.m.
Again, these calls took place outside of any work hours for Garrett Brown,
LaTonya Rufus, and Plaintiff in their capacity as Mayor, City Manager, and council
member/Mayor Pro Tem.
Plaintiff does not recall the substance of each and every verbal conversation via
audio call that took place between Garrett Brown, LaTonya Rufus, and Plaintiff as part of
Exhibit 1.
Exhibit 1 has a screenshot of a “List of Members in City of Lanthrup Village,”
with the name of Dr. Sheryl Mitchell, PhD, listed as City Administrator.
The City of Lanthrup Village website indicates that Sheryl Mitchell Theriot
started work as Lathrup Village’s city administrator on Monday, April 2, 2018.
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“Previously, she served for nearly four years as the city manager for the community of
Albion.” (https://lathrup-mi.municodemeetings.com/directory-listing/sheryl-mitchelltheriot-0, last visited on December 21, 2022). (Reader view of webpage, Exhibit 2).
Sheryl Mitchell was the City Manager for the City of Albion prior to LaTonya
Rufus becoming the City Manager.
Exhibit 1 continues with audio calls on October 23, 2018 and October 24, 2018.
While all audio calls and written communication that makes up Exhibit 1 were
conducted in the personal capacity of Garrett Brown, LaTonya Rufus, and Plaintiff, the
subject matter of some of the audio calls and written communication that makes up
Exhibit 1 were matters of public concern, including, but not limited to, topics and
subjects relevant to the City of Albion and City of Albion officials.
Exhibit 1 continues with a post from Plaintiff on October 25, 2018, which shows
a screenshot of a Facebook post from Justin Seidler, “What. What’s going on?,” with
replies as shown from Leslie Keller Dick, John Face, and Sheryl Mitchell.
Exhibit 1 continues with a screenshot of the continued replies from the Facebook
post from Justin Seidler, with Leslie Keller Dick posting a message saying “[She] didn’t
start the fire…what else do I have to say?” and posting a YouTube clip of the Billy Joel
song “We Didn’t Start the Fire.”
John Face replies, “Leslie Keller Dick are you sure” and Sheryl Mitchell replies
with a screenshot post with text that states, “What you do makes a difference, and you
have to decide what kind of difference you want to make,” which is a quote attributed to
Dr. Jane Goodall.
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Exhibit 1 continues with a Plaintiff written response, “Sheryl is out of line!!! I’m
sick of her. What does that even mean? [emoji].”
Exhibit 1 continues with a written response from Garrett Brown, “She basically
saying that you are going to be treated like you treat others.”
Exhibit 1 continues with a written response from LaTonya Rufus, “Fyk her. Lol.”
Exhibit 1 continues with a written response from Garrett Brown, “I her case I
assume she feels wronged by LaTonya’s comments so her and Louis’s bs is warranted,”
then “*In.”
Exhibit 1 continues with a written response from Plaintiff, “I’m with LaTonya
[emoji] Fyk her.”
Exhibit 1 continues with a written response from Plaintiff, “Why is karma taking
wo so long? She is being professionally unethical.”
Exhibit 1 continues with a written response from Garrett Brown, “It’s just
piling.”
For background and context of this conversation from October 25, 2018 between
Garrett Brown, LaTonya Rufus, and Plaintiff, Sheryl Mitchell was the former city
manager for the City of Albion and the successor of the sitting City Manager LaTonya
Rufus.
John Face was a local blogger and owner of the City News Watch Blog, which
frequently published articles on topics and subjects relevant to the City of Albion.
John Face is closely linked to council member Shane Williamson, Mayor David
Atchison, and Chief of Public Safety Scott Kipp, all Defendants for this case.
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The October 25, 2018 exchange between Garrett Brown, LaTonya Rufus, and
Plaintiff was about the posting by Leslie Keller Dick and Sheryl Mitchell, which Garrett
Brown, LaTonya Rufus, and Plaintiff all perceived as taking a swipe at, and insulting,
LaTonya Rufus, who had just started as City Manager for the City of Albion.
The deeper background and context is that Garrett Brown, LaTonya Rufus, and
Plaintiff believed that former city manager Sheryl Mitchell was not sufficiently doing her
job and not acting as a watchdog for the residents of the City of Albion.
Plaintiff believed that Sheryl Mitchell was part of a pattern of corruption amongst
City of Albion officials.
Exhibit 1 continues with an audio call on October 18, 2018 at 11:18 a.m.
Exhibit 1 continues on November 7, 2018 with a Facebook Uniform Resource
Locator (URL) link and then a message underneath that says, “Attachment Unavailable.”
Plaintiff does not recall the substance of the Facebook URL link and unavailable
attachment.
Exhibit 1 continues with an audio call from November 7, 2018 started by
LaTonya Rufus.
Exhibit 1 continues with a written message from LaTonya Rufus on November 7,
2018, which states, “He would get paid $460,000.”
For background and context of this written message from LaTonya Rufus on
November 7, 2018, there was a verbal discussion about former city manager Sheryl
Mitchell revising the employment contract for Chief of Public Safety Scott Kipp to
include a provision that Scott Kipp would receive a $460,000.00 payout in the event that
Scott Kipp was forced out and removed from office.
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This was Plaintiff’s understanding of the contract revision that Sheryl Mitchell
implemented for Scott Kipp.
Plaintiff viewed this contract revision as a parting gift to Scott Kipp from Sheryl
Mitchell – and part of the pattern of corruption for City of Albion officials.
So when LaTonya Rufus states, “He would get paid $460,000,” this is what is
being referenced.
Exhibit 1 continues with another audio call from November 7, 2018.
Exhibit 1 continues on November 9, 2018, with a written message from LaTonya
Rufus that says, “My bad. I’m so sorry.”
Garrett Brown answers, “No problem [emoji]” and Plaintiff responds, “No
worries! It’s cool.”
Plaintiff does not recall the background and context of these written messages
from November 9, 2018.
Exhibit 1 continues with a written message from LaTonya Rufus, which says “Y
would he send that” and a written response from Plaintiff that says, “We got u, Ms.
Rufus! [emoji]” and “Crazy and wishful thinking…”
For background and context of these written messages from November 9, 2018,
Chief of Public Safety Scott Kipp had still been sending emails out through the City of
Albion that listed Scott Kipp as the Interim City Manager for the City of Albion, even
though LaTonya Rufus had been named and was serving as the City Manager for the City
of Albion.
Plaintiff and Garrett Brown and LaTonya Rufus found Scott Kipp’s continued use
of the title “Interim City Manager” disrespectful to LaTonya Rufus.
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Accordingly, Plaintiff and Garrett Brown and LaTonya Rufus were talking about
their feelings regarding Scott Kipp’s disrespectful actions.
Exhibit 1 continues with Garrett Brown stating, “The “[emojis]” were directed at
Scott.
Exhibit 1 then continues with Plaintiff’s written response, “Get rid of him! He’s
untrustworthy.”
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” is the baseline
subject that formulated an unlawful search of a cellular phone and social media account,
a criminal charge and loss of liberty for Plaintiff, a not guilty verdict for Plaintiff in the
Calhoun County 10th District Court, and this federal Complaint.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” was written in
a group chat with Garrett Brown and LaTonya Rufus – in Plaintiff’s individual capacity
as a private citizen.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” was not a
directive to anyone.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” was not a
directive to do anything.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” was protected
political speech, written in Plaintiff’s capacity as a private citizen, from a private cell
phone, during non-work hours, in non-work capacity regarding Plaintiff’s role as a city
council member for the City of Albion, and was made regarding a matter of public
concern, specifically allegations that Chief of Public Safety Scott Kipp was rude,
insubordinate, and was undermining City Manager LaTonya Rufus (see above with Scott
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Kipp continuing to claim to be Interim City Manager in emails), as well as allegations
that Scott Kipp owed hundreds of dollars in unpaid cell phone bills associated with the
City of Albion, and that LaTonya Rufus believed that Scott Kipp was monitoring the
phone of LaTonya Rufus. (Council Memorandum, Exhibit 3; Statement from Plaintiff,
Exhibit 4; Formal Complaint from Plaintiff, Exhibit 5; Addendum, Exhibit 6).
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” constitutes
the free discussion of governmental affairs. [This, of course, includes discussions of the
candidates, structures, and forms of government, the manner in which government is
operated or should be operated, and all such matters relating to political processes. Mills v
Alabama, 384 US 214 (1966)]; Supra.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” is clearly
established as protected political speech.
As written by Plaintiff in Exhibit 3, Plaintiff’s written response of “Get rid of
him! He’s untrustworthy” was not a directive to do anything.
Plaintiff’s written response of “Get rid of him! He’s untrustworthy” was a
reminder that City Manager LaTonya Rufus was the person that had administrative
authority over personnel, including terminating employees that are insubordinate and/or
in debt to the City of Albion.
It is noteworthy that City Manager LaTonya Rufus had just started her position as
City Manager on or about October 2018.
Plaintiff has been on record with all of this information and background and
context from the moment that Plaintiff discovered that her private Facebook Messenger
messages were being distributed to the public.
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Beyond a throw-away reference to Attachment 3, none of the background and
context of any of Plaintiff’s protected speech ever made its way into the subsequent
Thrun Report (infra) and the 2-page police report against Plaintiff (infra), which
constitute the basis of the criminal charge that was eventually waged against Plaintiff by
Defendants.
Exhibit 1 continues with a screenshot of Chief of Public Safety Scott Kipp
talking about his use of “Interim City Manager” in emails, with Scott Kipp’s response,
“That was off the remote desk top. I rarely ever use it.”
Exhibit 1 continues with a written message from LaTonya Rufus saying “BS”
then “[thumbs up emoji] 2.”
Exhibit 1 continues with Plaintiff posting an emoji and then Plaintiff’s written
response, “Isn’t the personal phone bill enough to terminate Scott?…And Corisha?…Has
the labor atty responded to your inquiry?.”
For continued background and context, Caresha Kendrick was the administrative
assistant of Chief of Public Safety Scott Kipp on or about November of 2018.
Kendrick was also a part-time human resources employee for the City of Albion.
Exhibit 1 continues with a written response from LaTonya Rufus, “Not yet…I’m
just upset at the mess.”
Exhibit 1 continues with Plaintiff’s written response, “Scott needs to go, Ms.
Rufus. One less worry!…He knew he wasn’t paying his bill!! And he should’ve known
about Carisha! That’s bs…Sheryl is gone and there’s a new Sheriff in town! [emoji].”
For continued background and context, Plaintiff and LaTonya Rufus are
discussing, in their personal capacity, allegations that Chief of Public Safety Scott Kipp
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has engaged in misconduct regarding City of Albion issued cellular phones and the
payment of bills associated with those cellular phones, which is a matter of public
concern and protected political speech.
Exhibit 1 continues with a written statement from LaTonya Rufus, “He claims
Bonnie didn’t tell him…That heifer called me…I’m sick of them.”
Exhibit 1 continues with a written response from Plaintiff, “Bonnie didn’t tell
him what? He knew he wasn’t paying his bill…Sheryl is about to have her own plate full
with this ICMA complaint [emoji].”
For background and context, Plaintiff is referencing an International City/County
Management Association (ICMA) complaint associated with former City of Albion City
Manager Sheryl Mitchell.
Exhibit 1 continues with a written response from LaTonya Rufus, “Bonnie and
Scott both claimed he paid it…I’m sick of this mess…They are all liars.”
Exhibit 1 continues with Plaintiff’s written response, “Where’s the receipts?
Proof? Who owes then?” and the written response from LaTonya Rufus, “It should be in
the system.”
Exhibit 1 then continues with a screenshot of an email that Scott Kipp sent to
Plaintiff regarding a traffic collision that Plaintiff was involved in where Plaintiff was
rear-ended, with Plaintiff stating, “Fyi….our police dept is a joke!”
Plaintiff then states, “Fyi…I didn’t have much to tell him because I still don’t
know what happened from my own recollection. Hell, I was hit. The end. [emojis].”
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For background and context, Plaintiff is referring to a vehicle collision that
occurred in Plaintiff’s own personal vehicle, on Plaintiff’s private time, but where there
was a response from the City of Albion Department of Public Safety.
Plaintiff did not believe that the City of Albion Department of Public Safety
response was adequate.
Plaintiff then states, “Fyi, Marcola’s son hit me. It’s good enough. We are
working it out.”
Plaintiff then attaches another screenshot of a text conversation between Plaintiff
and Scott Kipp.
Exhibit 1 continues on November 12, 2018 at 6:31 p.m. with LaTonya Rufus and
her written statement that, “I’m in the house.”
Exhibit 1 continues with a screenshot of an email exchange between LaTonya
Rufus and Scott Kipp regarding Scott Kipp using “Interim City Manager” in his title
while emailing on a City of Albion account.
Exhibit 1 continues with an audio call started by Garrett Brown on Saturday,
November 17, 2018 at 9:45 a.m., which ends at 9:46 a.m.
Exhibit 1 continues with an audio call started by Garrett Brown on November 28,
2018 at 9:44 p.m. – non-work hours – which ended at 9:51 p.m.
Exhibit 1 concludes with a written message from Plaintiff on November 30, 2018
that says, “Ms. Rufus, please call Cullen. He’s a snake but he is not going to risk losing
his license for Kipp, Sheryl, or anybody else. [emoji] He will give you your legal options
on dealing with Kipp.”
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January 2019
In January 2019, a formal investigation occurred regarding LaTonya Rufus and
allegations that LaTonya Rufus misused or embezzled City of Albion funds.
Thomas Mead, then financial director/treasurer for the City of Albion, discovered
a credit card issued by the City of Albion that Mead believed contained suspicious
charges.
Mead had tracked the suspicious credit card transactions to LaTonya Rufus, then
City Manager for the City of Albion.
On or about January 22, 2019, Defendant Mayor David Atchison placed LaTonya
Rufus on administrative leave, based upon LaTonya Rufus not turning in moving expense
receipts and the allegations of improper conduct against LaTonya Rufus.
Defendant City Attorney Cullen Harkness communicated the matter of the
suspicious credit card transactions and allegations against LaTonya Rufus to the Calhoun
County Sheriff’s Office.
And on January 28, 2019, then Sheriff Matthew Saxton contacted Calhoun
County Sheriff Officer Steven Hinkley to begin a formal investigation against LaTonya
Rufus for allegations of embezzlement.
Calhoun County Sheriff Officer Steven Hinkley conducted a detailed
investigation into the allegations of embezzlement by LaTonya Rufus. (Hinkley report,
Exhibit 7).
Exhibit 7 is relevant to this Complaint because of the directives and actions taken
by Defendant City Attorney Cullen Harkness and Defendant Chief of Public Safety Scott
Kipp for the City of Albion.
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Contemporaneous to LaTonya Rufus being placed on administrative leave by city
council on January 24, 2019, City Attorney Cullen Harkness (Harkness) directed Chief of
Public Safety Scott Kipp (Kipp) to confiscate the City of Albion issued cellular phone
and laptop computer from LaTonya Rufus.
Kipp confiscated the City of Albion issued cellular phone and laptop computer
from LaTonya Rufus on or about January 23, 2019, upon information and belief.
Thomas Mead references Kipp’s actions in confiscating the City of Albion issued
cellular phone and laptop computer in the Hinckley report that is Exhibit 7. See page 7,
paragraph 2; page 12, paragraph 5.
Pursuant to Kipp’s own statement in Exhibit 7, on January 23, 2019, Harkness
directed Kipp to confiscate the City of Albion issued cellular phone and laptop computer
from LaTonya Rufus.
On January 23, 2019, Kipp travelled to the personal home of LaTonya Rufus and
confiscated the City of Albion issued cellular phone and laptop computer from LaTonya
Rufus. Exhibit 7; page 13, paragraph 5.
Pursuant to Kipp’s statement in Exhibit 7, Kipp received the passcode for the city
issued cellular phone and began searching through the cellular phone, without any search
warrant. Riley v California, 573 US 373 (2014). Exhibit 7, page 13, paragraph 6; page
14, paragraph 2.
Pursuant to Kipp’s statement in Exhibit 7, Kipp “worked administratively and
talked with [City Attorney Harkness].” Id. at paragraph 2.
Kipp reported that text messages and phone contacts were deleted from the city
issued cellular phone that Kipp confiscated from LaTonya Rufus. Id.
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Kipp advised that Harkness instructed Kipp to use applications on the city issued
cellular phone that was confiscated from LaTonya Rufus to attempt to recover the deleted
text messages.
Kipp continued his warrantless search of the city issued cellular phone
confiscated from LaTonya Rufus, at the direction of City Attorney Harkness. Carpenter v
United States, 138 SCt 2206 (2018).
Exhibit 7 states, “[Kipp] advised he was instructed to use some applications on
the phone in an attempt to recover the deleted text messages. [Kipp] advised he believes
he used four different apps. Three were trial apps and one he paid for. [Kipp] indicated he
remembered that one of the phone apps was “Phone Rescue.” [Kipp] advised he was
unable to recover any of the deleted text messages.” Exhibit 7, page 14, paragraph 2.
Exhibit 7 continues, “[Kipp] advised that during his administrative inspection of
the Albion City phone, he accessed Rufus’s (sic) Facebook Messenger and he discovered
several different messages between Rufus, Sonia Brown (sic) [Plaintiff] and Garrett
Brown. [Kipp] advised that Sonia Brown (sic) was a council member and Garrett Brown
was the mayor of the City of Albion until December 31, 2018. He advised that those
messages were relating to personnel issues and he said he screenshotted those messages
on his cell phone and showed me those messages. It appeared that they had been
discussing personnel issues on the private Facebook Messenger and I asked Kipp to send
me those screenshots, which he did. I will add them to the RMS report and I will scan
them into RMS.” Exhibit 7, page 14, paragraph 4.
There is no legal justification, under any warrant exception, to Kipp’s warrantless
search of the cellular phone that was confiscated from LaTonya Rufus, which was
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directed by City Attorney Cullen Harkness. See Riley v California, supra; see Carpenter
v United States, supra; United States v Lichtenberger, 786 F3d 478 (6th Cir 2015).
And it was the warrantless and unlawful search described in Exhibit 7 that
discovered the private Facebook Messenger Group Chat messages between Plaintiff,
Garrett Brown, and LaTonya Rufus (Exhibit 1), which formulates the violation of
Plaintiff’s clearly established rights for this case.
Plaintiff had and has a reasonable expectation of privacy in the private Facebook
Messenger Group Chat messages that Plaintiff sent to Garrett Brown and LaTonya Rufus,
which were obtained unlawfully by Kipp and Harkness. Hinton, supra.
For the record, Officer Hinkley ultimately obtained a search warrant through his
investigation and recommended charges against LaTonya Rufus for embezzlement.
LaTonya Rufus was ultimately charged with felony embezzlement and pleaded
guilty to misdemeanor embezzlement and was sentenced to probation and to pay
restitution.
On January 23, 2019, upon information and belief, Defendant. Albert Smith, filed
a written request for a recall petition pursuant to MCL 168.955 – in effort to remove
Plaintiff from office as a city council member for the City of Albion.
Defendant, Albert Smith, used language in the recall petition that he filed, which
alleged that Plaintiff violated City of Albion Charter Section 5.8 by sending an electronic
message directing City Manager LaTonya Rufus to remove Scott Kipp from head of
Albion’s public safety department.
This was false. Plaintiff never directed anyone to do anything in the private
Facebook Messenger messages that she sent in November 2018.
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But Defendant, Albert Smith, received leaked information from an unknown
source; and Defendant, Albert Smith, filed a petition to recall and remove Plaintiff from
office as a city council member of the City of Albion.
Defendant, Albert Smith, later withdrew his recall petition that he filed on January
23, 2019.
February 2019
Upon information and belief, information regarding private Facebook Messenger
messages sent between Plaintiff, Garrett Brown, and LaTonya Rufus, between October
2018 and November 2018, leaked to John Face, the local Albion blogger.
Plaintiff does not know the exact source of who leaked information, but Plaintiff
has surmised that Kipp leaked this information to John Face, as Kipp was the one who
unlawfully searched the City of Albion issued cellular phone that Kipp confiscated from
LaTonya Rufus on January 23, 2019.
On February 19, 2019, Plaintiff became aware that Plaintiff’s private Facebook
Messenger messages sent between Plaintiff, Garrett Brown, and LaTonya Rufus were
leaked to John Face.
On February 19, 2019, Plaintiff had a phone conversation with Defendant Jason
Kern.
Defendant Kern advised Plaintiff that Defendant Scott Kipp had accessed the City
of Albion cellular phone and the private Facebook Messenger messages between Plaintiff
and Garrett Brown and LaTonya Rufus without a search warrant.
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Defendant Kern was well-aware that Kipp’s warrantless search of this cellular
phone from LaTonya Rufus, which was directed by Defendant Cullen Harkness, was a
violation of the law and unlawful.
But Defendant Kern did nothing to publicly stop the unlawful actions of
Defendant Kipp and Defendant Harkness.
In email exchanges between Plaintiff and Defendant Harkness, Defendant
Harkness asserts that Defendant Harkness asked Defendant Kipp to look at the cellular
phone from LaTonya Rufus for text messages only, which would still be an unlawful
warrantless search.
But Defendant Kipp’s statement to Officer Steven Hinkley was that Defendant
Kipp “worked administratively and talked to the city attorney” and that “during his
administrative inspection of the Albion City phone, [Kipp] accessed Rufus’s Facebook
Messenger and he discovered several different messages between Rufus, Sonia Brown
(sic) and Garrett Brown.” Exhibit 7, page 14, paragraphs 2 and 4.
The only conclusion to be drawn is that Defendant Kipp unlawfully searched the
cellular phone of LaTonya Rufus, and unlawfully accessed the private Facebook
Messenger messages between Plaintiff and Garrett Brown and LaTonya Rufus, at the
direction of Defendant Cullen Harkness.
On February 25, 2019, John Face published an article via City Watch News,
which stated, “3rd Precinct Council member Sonya Brown has had recall petition
language filed with the Calhoun County Clerk’s office. It’s alleged that council member
Brown advocated for firing of Albion Department of Public Safety Chief Scott Kipp. The
allegations of this violation of City Charter are based on messages between City Manager
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LaTonya Rufus, Ms. Brown, and with Garrett Brown a part of the conversation yet not
commenting. These are very serious charges and a breach of public trust. The City
Charter forbids Council members advocating for or against an employee of the city. I
have attached a copy of the messages which are interesting at best. Stay tuned for
tomorrow for more information.”
John Face then published a pdf attachment, which contains a portion of the private
Facebook Messenger Messages between Plaintiff and Garrett Brown and LaTonya Rufus
from October 2018 through November 2018. (Screenshot of City Watch News Facebook
post from John Face, Exhibit 8; pdf file with portion of messages, Exhibit 9).
On February 25, 2019, Defendant, Bruce Nelson, filed a recall petition against
Plaintiff, which used identical language to the recall petition that Defendant, Albert
Smith, filed on January 23, 2019. (Recall Petition, Exhibit 10).
The leaking of the private Facebook Messenger messages, the multiple recall
petitions filed against Plaintiff, and John Face publishing the hit piece and City Watch
News article against Plaintiff were all part of a coordinated effort against Plaintiff – by
Defendant Albert Smith, by Defendant David Atchison, by Defendant Scott Kipp, and by
Defendant Bruce Nelson.
Between February 22, 2019 and February 26, 2019, Plaintiff exchanged emails
with Defendant Cullen Harkness and labor attorney Chelsea Ditz.
Defendant Harkness and attorney Ditz both denied knowing how Defendant Kipp
accessed Plaintiff’s private Facebook Messenger messages.
March 2019
On March 1, 2019, a special city council meeting was held.
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Plaintiff made public comments about the leaking of the private Facebook
Messenger messages and the allegations against Plaintiff.
Portions of the special city council meeting are available on YouTube:
https://www.youtube.com/watch?v=izo74wWDcRM&t=98s (last visited on December
28, 2022).
Plaintiff also submitted her concerns about the warrantless and unlawful search of
the LaTonya Rufus cellular phone to the Michigan State Police and to the Michigan
Attorney General’s Office.
Plaintiff also sought to appoint a different interim city manager than Defendant
Scott Kipp, who had gone back to his role as interim city manager for the City of Albion.
However, a majority of the City of Albion city council voted to retain Defendant
Scott Kipp as interim city manager.
May 2019
On November 24, 2018, members of the Albion Department of Public Safety
(ADPS) were involved in an event where members of ADPS punched and pepper sprayed
a mentally ill 13-year old boy.
This event received media attention. (Reader view article, Exhibit 11).
Plaintiff was outspoken about her distaste with Defendant Kipp’s response to this
event.
A city council meeting was held on May 6, 2019, where Plaintiff made public
comments regarding the ADPS event as described above.
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Plaintiff’s comments can be viewed on YouTube.
(https://www.youtube.com/watch?v=iNKZKVK1pug, last viewed on December 28,
2022).
A special city council meeting was called on May 13, 2019.
Plaintiff made public comments about the ADPS event as described above at this
special meeting.
Plaintiff’s comments can be viewed on YouTube.
(https://www.youtube.com/watch?v=PyWJ9Xsh6pA, last viewed on December 28,
2022).
August 2019
On August 13, 2019, Defendant Kipp submitted a formal complaint against
Plaintiff.
Defendant Kipp alleged that Plaintiff was harassing and defaming Defendant
Kipp. (Kipp Complaint, Exhibit 12).
Plaintiff formally responded to Exhibit 12 with Plaintiff’s Council Memorandum,
Exhibit 3.
While continuing to serve in city council, Plaintiff made a motion to investigate
Defendant Kipp’s harassment complaint.
Defendant Kipp’s complaint against Plaintiff was a hit piece, and it came right in
the midst of election season and the recall petition and recall election that Plaintiff was
facing.
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November 2019
On November 8, 2019, Plaintiff was voted out of office as a member of city
council through the recall petition effort.
Unfortunately for Plaintiff, the efforts of Defendant Albert Smith, Defendant
David Atchison, Defendant Scott Kipp, and Defendant Bruce Nelson worked to vote
Plaintiff out of office.
Defendant Albert Smith secured more votes than Plaintiff in the recall election.
December 2019
After Plaintiff was voted out of office, Defendant Kipp attempted to rescind his
harassment complaint against Plaintiff – further evidence that the harassment complaint
was nothing but a political play in effort to try to remove Plaintiff from the city council.
On December 2, 2019, the City of Albion city council voted to proceed with an
investigation against Plaintiff – even though Plaintiff had been voted out of office.
The City of Albion city council voted to hire attorney Timothy Gardner of the
Thrun Law Firm to conduct an investigation into Defendant Kipp’s harassment
complaint.
Plaintiff voluntarily met with attorney Timothy Gardner for an interview on
December 30, 2019.
January 2020
Attorney Timothy Gardner conducted additional interviews on January 8, 2020,
January 13, 2020, January 21, 2020, and January 22, 2020.
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February 2020
On February 21, 2020, attorney Timothy Gardner submitted his report and
conclusions. (Thrun Report, Exhibit 13).
The Thrun Report concluded the following: (a) Plaintiff did not commit
harassment or defamation against Defendant Kipp, (b) Plaintiff’s conduct in sending
private Facebook Messenger messages (Exhibit 1) constituted a violation of City of
Albion Charter 5.8 and City of Albion Code of Ordinances 1-28 (Ethics).
Plaintiff agrees that Plaintiff did not commit any defamation or harassment
against Defendant Kipp.
Plaintiff denies all allegations that Plaintiff violated any City of Albion charter
section or City of Albion ordinances, as alleged in the Thrun Report.
The Thrun Report is a myopic document, which contains virtually no background
and context for any private Facebook Messenger messages that Plaintiff sent to Garrett
Brown and LaTonya Rufus, despite the fact that Plaintiff provided all documentation and
background and context of such messages to attorney Timothy Gardner.
The Thrun Report contains a passing reference to Attachment 3, which is one
public statement that Plaintiff made in response to allegations that Plaintiff “directed”
anyone or anything with Plaintiff’s private Facebook Messenger message from
November 2018 that said, “Get rid of him! He’s untrustworthy.”
The Thrun Report does not provide any analysis of explanation of Plaintiff’s
written response in Attachment 3.
Much of the Thrun Report’s 14 pages contain the cut and pasted language from
the City of Albion Charter and Code of Ordinances.
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The Thrun Report also does not contain any discussion or analysis of the First
Amendment, which is a gross omission.
The Thrun Report contains shoddy factual and legal analysis.
The Thrun Report provides two lines regarding Plaintiff’s position on Plaintiff’s
own words: “In regards to the Facebook Messenger messages (See Attachment 4),
Councilwoman Brown alleges that then City Manager LaTonya Rufus was telling
Councilwoman Brown about Chief Kipp owing hundreds of dollars to the City for unpaid
cellphone bills. Ms. Brown indicated that she reminded Ms. Rufus that only the City
Manager could hire/fire a City employee.”
But the Thrun report makes no other reference to Plaintiff’s position and
explanation and then just concludes, without analysis, that Plaintiff’s “Get rid of him!”
comment “had the practical effect of ordering Ms. Rufus to remove Chief Kipp from his
position as the City’s Chief of Public Safety, which violated Section 5.8 of the City
Charter.” (Thrun Report, page 12).
The Thrun Report’s shoddy conclusion is totally false.
Section 5.8 of the City of Albion Charter states, “The council members shall not
individually direct the appointment or removal of any administrative officer or employee
of the city and shall deal with the administrative service of the city only through the city
manager, as to officers and employees made responsible to him.”
Section 5.8 of the City of Albion Charter also states, “There shall be no standing
committees of the council.”
Section 5.8 of the City of Albion Charter is unconstitutionally vague and
overbroad, as explained below, both facially and as applied to Plaintiff.
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But the word “direct” is not defined anywhere in the City of Albion Charter of
City of Albion Code of Ordinances.
A common dictionary definition of the word “direct” has the definitions: (a) to
cause to turn, move, or point undeviatingly or to follow a straight course, (b) to regulate
the activities or course of. (https://www.merriam-webster.com/dictionary/direct, last
visited December 29, 2022).
A directive is an action and not simply words.
While Plaintiff may have had a private opinion that Defendant Kipp should no
longer be employed by the City of Albion, it is undisputed that Plaintiff took no actions
to remove Defendant Kipp from his employment as Chief of Public Safety for the City of
Albion.
LaTonya Rufus took no actions to remove Defendant Kipp from his employment
as Chief of Public Safety for the City of Albion.
No other person took any actions to remove Defendant Kipp from his
employment as Chief of Public Safety for the City of Albion.
Plaintiff did not “cause to move” any process to remove Defendant Kipp from his
employment as Chief of Public Safety for the City of Albion.
Plaintiff did not regulate the activities or the course of any removal of Defendant
Kipp from his employment as Chief of Public Safety for the City of Albion.
Plaintiff was expressing Plaintiff’s opinion in a private Facebook Messenger
Group Chat, after hours, and in Plaintiff’s individual capacity as a private citizen, which
is protected political speech.
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Plaintiff’s subjective intent and the background and context of the statement, “Get
rid of him!” must be taken into account – and the Thrun Report disregarded such factors
without analysis.
The Thrun Report does not even mention the fact that this communication of “Get
rid of him!” was made from a private device, outside of work hours, during Plaintiff’s
private time, and not in any capacity as Plaintiff’s role as a city council member.
The Thrun Report does not contain the remainder of the messages from Exhibit 3
of this Complaint, which demonstrate the insubordination and disrespect from Defendant
Kipp towards LaTonya Rufus, which formulated the basis of Plaintiff’s private opinion in
her written response to say, “Get rid of him!”
The Thrun Report is a facile document.
The Thrun Report has material omissions regarding background and context and
the intent of any statements made between Plaintiff, Garrett Brown, and LaTonya Rufus.
In sum, the Thrun Report is an extremely poor representation of the history and
background between Plaintiff and all of the named defendants for this case.
However, the Thrun Report constitutes the factual and legal basis for the criminal
complaint that was ultimately waged against Plaintiff by the named defendants.
March 2020
On March 16, 2020, Defendant Albert Smith, Defendant Gleniane Reid,
Defendant Shane Williamson, and Defendant David Atchison all voted to hire a special
prosecutor to criminally prosecute Plaintiff based upon the shoddy and false conclusions
from the Thrun Report.
The named defendants for this case caused Plaintiff to be prosecuted.
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Attorney Patrick O’Keefe was ultimately hired as special prosecutor.
May 2020
On May 14, 2020, Defendant Cullen Harkness contacted Defendant Nicole
Wygrant, who was a Detective/Sergeant for the City of Albion Department of Public
Safety.
Defendant Harkness “requested that [Defendant Wygrant] generate a report
number in reference to SONYA BROWN violating the Charter. Specifically section 2.5
(Penalties for violations of charter) and 2.8 (Restrictions on powers of the council) of the
Charter). (Police Report, Exhibit 14).
In taking this action, Defendant Harkness participated in and influenced the
decision to criminally prosecute Plaintiff.
Defendant Harkness did more than just passive cooperation.
Defendant Harkness aided in the decision to criminally prosecute Plaintiff.
Further, Exhibit 14 is a two page document, where page 1 is just the “Incident
Location,” “Incident Offenses,” “Officers Involved,” and “Incident People.”
Page 2 of Exhibit 14 is one sentence long.
Defendant Wygrant failed to ever speak with or interview Plaintiff.
Defendant Wygrant did not even attempt to speak with or interview Plaintiff.
Exhibit 14 does not contain any of Plaintiff’s public comments or public
statements or responses to the “Get rid of him!” written response in the private Facebook
Messenger message sent in November 2018.
The material omissions of any of Plaintiff’s public comments or public statements
or responses is relevant to any examining magistrate’s determination of probable cause to
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issue an arrest warrant and the criminally charge Plaintiff and infringe upon Plaintiff’s
liberty.
June 2020
On June 1, 2020, Defendant David Atchison filed a Complaint in the Calhoun
County 37th Circuit Court, Case No.: 20-1114-NZ, the Honorable Sarah S. Lincoln
presiding, where Defendant Atchison alleged that Plaintiff was defaming Defendant
Atchison. (Defamation Complaint, Exhibit 15).
Defendant’s Atchison’s defamation lawsuit against Plaintiff was baseless and
lacked all merit; and it was ultimately dismissed.
Defendant Atchison’s lawsuit shows a pattern of using the legal system as a
sword against one’s political enemies (Plaintiff) – just as Defendant Atchison conspired
with other named Defendants and voted for criminal prosecution against Plaintiff.
On June 16, 2020, special prosecutor Patrick O’Keefe signed a warrant request to
criminally prosecute Plaintiff for an allegation that Plaintiff violated City of Albion
Charter Section 5.8. (Misdemeanor Complaint, Exhibit 16).
Plaintiff had to be arraigned for this allegation of criminal misconduct and
violation of the law.
Plaintiff was placed on bond conditions with the 10th District Court for Calhoun
County, Case Number 20-205559-OM, the Honorable Michelle L. Richardson presiding.
Plaintiff suffered loss of liberty through being placed on trial and having bond
conditions imposed, which limited Plaintiff’s freedom of movement and limited
Plaintiff’s actions.
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City of Albion Charter
The City of Albion Charter is found by visiting:
https://library.municode.com/mi/albion/codes/code_of_ordinances (last visited on
December 29, 2022).
Chapter 2 is “Definitions and General Provisions,” which states in Section 2.5:
“Any person found guilty of an act constituting a violation of this charter may be
punished by a fine which, in addition to court costs charged to him, shall not exceed five
hundred dollars ($500.00) or imprisonment for not more than ninety (90) days, or both
such fine and imprisonment, in the discretion of the court. This section shall not operate
to limit or prejudice the power to remove officers or discharge employees as provided in
this charter.”
Section 2.5 of the City of Albion Charter is what would be commonly referred to
as a penalty provision for any city code of ordinances.
But Section 2.5 is not contained within the “offenses” section of the City of
Albion Code of Ordinances, which governs crimes against a person, against property,
against public order, etc.
Instead, Section 2.5 is contained within the “Definitions and General Provisions”
section of the City of Albion Charter.
Under the apparent interpretation of the Defendant City Attorney Harkness, this
means that any “act constituting a violation of this charter” would subject an individual to
criminal penalties and sanctions.
For example, Chapter 26 of the City of Albion Cod of Ordinances, with is a part
of the City of Albion Charter, deals with Cable Communications.
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Section 26-33 Meetings states, in pertinent part, “Generally. It shall be the duty of
the CATV committee to hold meetings as frequently as may be necessary, at least
quarterly, in order to carry out the various functions of the committee as outlined in
section 26-32.”
Under Defendant City Attorney Harkness’ interpretation of the City of Albion
Code, if the CATV committee failed to “hold meetings as frequently as may be
necessary, at least quarterly,” all of the CATV committee could be criminally prosecuted
for such action or inaction.
Such interpretation would lead to countless examples of absurd results.
But in Plaintiff’s case, Plaintiff was criminally prosecuted for allegations that
Plaintiff violated Chapter 5 of the City of Albion Charter, which deals with City Council.
The above-referenced interpretation of the City of Albion Charter, to interpret it
to allow the criminal prosecution of any alleged violation of any Charter provision, is the
starting point for the unconstitutionality of the City of Albion Charter as applied to
Plaintiff, and Section 5.8 facially and as applied to Plaintiff.
Further, Section 5.8 of the City of Albion Charter does not define the word
“direct” and sweeps up far too much protected speech under the First Amendment.
Defamation
Because Defendant Kipp alleged that Plaintiff committed defamation against
Defendant Kipp, and because the Thrun Report did a shoddy factual and legal analysis of
this issue, it is important to demonstrate precisely why Plaintiff did not commit
defamation against Defendant Kipp and why all of Plaintiff’s private Facebook
Messenger messages were protected political speech.
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“The elements of a cause of action for defamation are: “(1) a false and
defamatory statement concerning the plaintiff; (2) an unprivileged communication to a
third party; (3) fault amounting to at least negligence on the part of the publisher; and (4)
either actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication.” Rouch v. Enquirer & News of Battle Creek, 440
Mich. 238, 251, 487 N.W.2d 205, 211 (1992) (citing Locricchio v. Evening New Ass’n,
438 Mich. 84, 115-16, 476 N.W.2d 112 (1991)).”
“A plaintiff must plead a defamation claim with specificity. Royal Palace Homes,
Inc. v. Channel 7 of Detroit, 197 Mich. App. 48, 52, 495, N.W.2d. 392, 394 (Mich. Ct.
App. 1992). The plaintiff cannot rely on general, conclusory allegations to support a
defamation claim, but must specifically identify the statements alleged to be defamatory.
Id. at 52-54, 57, 495 N.W.2d. at 394-95.”
“To prevail in a defamation claim, a plaintiff who is considered to be a “public
official” or “public figure” must prove that the defendant acted with “actual malice”
when publishing the alleged defamatory material. New York Times v. Sullivan, 376 U.S.
254, 279-280, 84 S. Ct. 710, 726 (1964).
A defendant acts with “actual malice” when he acts “with knowledge that [the
statement] was false or with reckless disregard of whether it was false . . .” Id. at 280, 710
S. Ct. at 726.
In Rosenblatt v. Baer, the Supreme Court elaborated on who is a “public official”
for purposes of the New York Times malice standard, providing: “It is clear . . . that the
‘public official’ designation applies at the very least to those among the hierarchy of
government employees who have, or appear to the public to have, substantial
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responsibility for or control over the conduct of governmental affairs.” Rosenblatt v.
Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 676 (1966).
The Court further provided that the analysis of whether a plaintiff is a public
official depends upon the following: Where a position in government has such apparent
importance that the public has an independent interest in the qualifications and
performance of the person who holds it, beyond the general public interest in the
qualifications and performance of all government employees . . . the New York Times
malice standard[] apply.Id. at 86, 86 S. Ct. at 676.”
There is no doubt that Defendant Scott Kipp, as the Chief of Public Safety for the
City of Albion, is and was a public official for all relevant purposes of any defamation
allegation against Plaintiff.
Plaintiff did not act with malice in anything that Plaintiff said or did.
Plaintiff did not say anything untruthful about Defendant Kipp.
Plaintiff never made any public or private statement, which were then published,
which were either false or with reckless disregard of the truthfulness of such statements.
Even the Thrun Report correctly points out that no statements that Plaintiff ever
made about Defendant Kipp amounted to defamation.
And there is no defamation regarding this case.
Further, substantial truth is an absolute defense to any defamation claim. Collins
v Detroit Free Press, 245 Mich App 27; 627 NW2d 5 (2001); Masson v New York
Magazine, 501 US 496 (1991).
Further, opinion and fair comment privileges apply to defamation claims. Gertz v
Robert Welch, Inc, 418 US 323 (1974).
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Further, in Michigan, only allegations of “crimes of moral turpitude” and
“infamous crimes” can be the basis of a defamation claim. Lakin v Rund, 318 Mich App
127 (2016).
For all of the above-listed reasons, Plaintiff did not commit any defamation
against Defendant Kipp.
Plaintiff also did not commit any defamation against Defendant Atchison.
Criminal case against Plaintiff
Plaintiff was criminally prosecuted, without probable cause, for allegations, that
Plaintiff violated Section 5.8 of the City of Albion Charter.
Plaintiff had to retain legal counsel to fight the false allegations against her.
The charges against Plaintiff, and the criminal trial against Plaintiff, were all very
public, which led to humiliation, suffering, and reputational damage to Plaintiff, among
other damages. (Media articles, Exhibit 17).
Prior to trial, Plaintiff filed a motion to dismiss the case based upon the
unconstitutional nature of the ordinance. (Motion, Exhibit 18).
In Plaintiff’s motion that is Exhibit 18, Plaintiff’s legal counsel asserted that
Plaintiff may not have standing to assert a Fourth Amendment violation; but this issue
was never actually litigated and reduced to a valid judgment in the criminal case; and it
accordingly has no collateral estoppel impact on this 42 USC § 1983 lawsuit. [Donovan v
Thames, 105 F3d 219 (6th Cir 1997); Sigley v Kuhn, 205 F3d 1341 (6th Cir 2000);
Lichton v American Universal Ins Co, 435 Mich 408 (1990).
Plaintiff’s trial took place on July 27, 2022.
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The jury deliberated for approximately 20 minutes before returning a unanimous
verdict of not guilty for Plaintiff. (Court Sheet, Exhibit 19; Article, Exhibit 20).
Count I: First Amendment Violation (Against All Defendants)
(First Amendment; Article I. Section 5 of Michigan Const; 42 USC § 1983)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 423 of this
Complaint.
The First Amendment to the United States Constitution protects Plaintiff’s private
Facebook Messenger messages that Plaintiff sent in November 2018.
And Article I, Section 5 of the Michigan Constitution of 1963 protects Plaintiff’s
private Facebook Messenger messages that Plaintiff sent in November 2018.
Defendants are “persons” under 42 USC § 1983.
And Defendants are not entitled to qualified immunity. Kisela v Hughs, 548 US
_; 138 S Ct 1148 (2018). Supra.
The Supreme Court has recognized that the First Amendment’s protections extend
to individual and collective speech “in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S.
609, 622 (1984).
Accordingly, speech is generally protected under the First Amendment unless it
falls within one of the narrow categories of unprotected speech. Id.
In this case, for the reasons discussed above, Plaintiff was engaging in protected
political speech.
And Plaintiff’s speech does not fall into any of the narrow categories of
unprotected speech.
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Defendants unlawfully conspired to criminally prosecute Plaintiff, without
probable cause, because Defendants did not like the content of Plaintiff’s speech – as
Plaintiff was speaking negatively about Defendant Kipp and the Albion Department of
Public Safety.
Plaintiff was speaking in her capacity as a private citizen, on Plaintiff’s private
time, from Plaintiff’s private device, not in any capacity as a city council member, and
was speaking on a matter of public concern, namely insubordination, disrespect, and
corruption from Defendant Kipp.
Defendant Kipp and Defendant Harkness unlawfully searched the cellular phone
of LaTonya Rufus, without a warrant, and discovered the private Facebook Messenger
Messages that Plaintiff wrote.
Defendants conspired to initiate a recall petition against Plaintiff, which was
unfortunately successful in November 2019.
Defendant Kipp filed a baseless harassment and defamation complaint with the
City of Albion.
Defendants conspired to investigate Plaintiff for the baseless claims that Plaintiff
harassed and defamed Defendant Kipp and that Plaintiff “directed” the removal of
Defendant Kipp, in violation of an obscure section of the City of Albion Charter. See
City of Albion Charter Section 5.8.
Defendants conspired to hire a special prosecutor to criminally prosecute Plaintiff.
Defendant Harkness actively participated in the prosecution of Plaintiff.
An arrest warrant was issued against Plaintiff.
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And Plaintiff lost her liberty and freedom and was put on trial, which resulted in a
swift and unanimous verdict of not guilty.
In this case, Defendants intentionally, without legal authority, and under color of
state law, violated Plaintiff’s clearly established rights by illegally investigating and
prosecuting Plaintiff for Plaintiff’s protected speech.
Defendants violated Plaintiff’s clearly established rights in violation of 42 USC §
1. As a direct and proximate result of Defendants’ actions, Plaintiff has suffered, and
  continues to suffer, severe emotional distress, among other damages, in an amount to be
  proven at trial.
Defendants acted with reckless, wanton, or callous indifference to Plaintiff’s
protected constitutional rights, which entitles Plaintiff to punitive damages in an amount
appropriate to punish Defendants and to make an example of them to the community.
Plaintiff is entitled to compensatory damages for Defendants’ violation of
Plaintiff’s constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard,
565 US 118 (2012).
Plaintiff is entitled to punitive damages for Defendants’ reckless or callous
indifference to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
Plaintiff is entitled to recover costs, including reasonable attorney fees, pursuant
to 42 USC § 1988.
And Plaintiff is entitled to prospective injunctive and declaratory relief and a
permanent injunction prohibiting further violations of Plaintiff’s First Amendment rights.
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Count II: First Amendment Retaliation (Against All Defendants)
(First Amendment; 42 USC § 1983)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 450 of this
Complaint.
For the reasons set forth above, Plaintiff was engaged in constitutionally protected
activity through her words and conduct.
It is well established that the First Amendment’s protection of freedom of speech
includes “both the right to speak freely and the right to refrain from speaking at all.”
Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing W. Va. St. Bd. of Educ. v. Barnette,
319 U.S. 624, 633–34 (1943)).
As a necessary corollary to protect that fundamental right, the “right of free
speech includes . . . the right to be free from retaliation by a public official for the
exercise of that right.” Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 499 (4th Cir. 2005) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676,
685 (4th Cir. 2000)).
To establish a claim for First Amendment retaliation, Plaintiff must put forth
sufficient evidence that: (1) she engaged in protected First Amendment activity; (2)
Defendants took some action that adversely affected Plaintiff’s First Amendment rights;
and (3) there was a causal relationship between her protected activity and Plaintiff’s
actions. Id.
This case started with the unlawful and warrantless search of the cellular phone
belonging to LaTonya Rufus.
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Defendant Kipp, at the direction of Defendant Harkness, unlawfully searched the
applications on LaTonya Rufus’ cellular phone, which contained the Facebook
Messenger application.
Plaintiff has a protected privacy interest in the private Facebook Messenger
messages that Plaintiff sent to LaTonya Rufus and Garrett Brown, to which Defendant
Kipp unlawfully accessed, copied, and the released to third parties.
Plaintiffs assert that Defendant Kipp and Defendant Harkness acted without any
proper cause or legal justification. State v Hinton; Riley v California; Carpenter v United
States; supra.
Plaintiff complained about the policy and practice and custom of the warrantless
search of the cellular phone of LaTonya Rufus and the warrantless search of the private
Facebook Messenger account.
When Plaintiff complained about the policy and practice and custom of the
warrantless search of the cellular phone of LaTonya Rufus and the warrantless search of
the private Facebook Messenger account, Defendants retaliated against Plaintiff and
violated Plaintiff’s constitutional rights.
In this case, Plaintiff was engaged in pure speech and political speech for her
criticism of the government officials (Defendant Kipp and others) and when Plaintiff was
challenging the warrantless search of the cellular phone of LaTonya Rufus and the
warrantless search of the private Facebook Messenger account. Supra.
Further, Defendants’ decision to engage in a baseless investigation and to
criminally prosecute Plaintiff was motivated primarily by Plaintiff’s protected pure
speech and political speech – in criticism of government officials and in challenging the
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warrantless search of the cellular phone of LaTonya Rufus and the warrantless search of
the private Facebook Messenger account, which is constitutionally protected activity.
In this case, Plaintiff was engaged in protected speech, Defendants engaged in a
political investigation and political prosecution against Plaintiff, which adversely affected
Plaintiff’s ability to speak out and criticize public officials and challenge unlawful
government action such as unlawful searches.
Further, there is a clear causal connection between Plaintiff’s protected speech
and Defendants’ unlawful investigation and criminal prosecution against Plaintiff.
Accordingly, Defendants have engaged in First Amendment retaliation against
Plaintiff and are liable to Plaintiff.
In engaging in First Amendment retaliation against Plaintiff, Defendants acted
with reckless, wanton, or callous indifference to Plaintiff’s protected constitutional rights,
which entitles Plaintiff to punitive damages in an amount appropriate to punish
Defendants and to make an example of them to the community.
Plaintiff is entitled to compensatory damages for Defendants’ violation of
Plaintiff’s constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard,
565 US 118 (2012).
Plaintiff is entitled to punitive damages for Defendants’ reckless or callous
indifference to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
Plaintiff is entitled to recover costs, including reasonable attorney fees, pursuant
to 42 USC § 1988.
And Plaintiff is entitled to prospective injunctive and declaratory relief and a
permanent injunction prohibiting further violations of Plaintiff’s First Amendment rights.
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Count III: Monell liability (Against All Defendants)
(First Amendment; Fourth Amendment; 42 USC § 1983)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 471 of this
Complaint.
A local government entity may not be sued under 42 USC § 1983 on a respondeat
superior theory of liability.
But a local government entity may be subject to §1983 liability for: (a) the
existence of an illegal official policy or legislative enactment, (b) that an official with
final decision making authority ratified illegal actions, (c) the existence of a policy of
inadequate training or supervision, or (d) the existence of a custom of tolerance or
acquiescence of federal rights violations. Burgess v Fischer, 735 F3d 462 (6th Cir 2013);
City of Canton v Harris, 489 US 378; 109 S Ct 1197 (1989); Monell v New York Dep’t
Soc Servs, 436 US 658; 98 S Ct 2018 (1978).
“Policy” refers to “official policy, a deliberate choice of a guiding principal or
procedure made by the municipal official who has final authority regarding such matters.
Corwin v City of Independence Mo, 829 F3d 695 (8th Cir 2016).
For a policy that is unconstitutional on its face, a plaintiff needs no other evidence
than a statement of the policy and its exercise. Szabla v City of Brooklyn, Minn, 486 F3d
85 (8th Cir 2007).
In this case, the City of Albion Charter Section 5.8 is unconstitutional on its face
and as applied to Plaintiff.
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Overbroad
“A law “is unconstitutionally overbroad when there exists a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.'" United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 361 (6th Cir.1998) (quoting Leonardson v. City of East Lansing, 896 F.2d 190, 195 (6th Cir.1990)); see Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson County, Tenn., 274 F.3d 377, 387 (6th Cir.2001) ("A law is overbroad under the First Amendment if itreaches a
substantial number of impermissible applications’ relative to the law’s legitimate sweep.”)
(quoting New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113
(1982)).
The overbreadth doctrine exists “to prevent the chilling of future protected
expression.” Staley v. Jones, 239 F.3d 769, 779 (6th Cir.2001). See Bd. of Airport
Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500
(1987); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d
394 (1985).
“Therefore, any law imposing restrictions so broad that it chills speech outside the
purview of its legitimate regulatory purpose will be struck down.” Deja Vu, 274 F.3d at
387.
The overbreadth doctrine is “strong medicine” that is used “sparingly and only as
a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830
(1973).
However, it is also “intentionally broad in scope.” Staley, 239 F.3d at 779.
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“Facial challenges to overly broad statutes are allowed not primarily for the
benefit of the litigant, but for the benefit of society — to prevent the statute from chilling
the First Amendment rights of other parties not before the court.” Sec’y of State of Md. v.
Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).
Thus, “[i]n order for a statute to be found unconstitutional on its face on
overbreadth grounds, `there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before
the court.'” Leonardson, 896 F.2d at 195 (quoting City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); see Triplett Grille,
Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir.1994).
Vague
The void-for-vagueness doctrine finds its roots in the Due Process Clause, as well
as the First Amendment.
“Under the First Amendment, `speakers are protected from arbitrary and
discriminatory enforcement of vague standards.'” King Enterprises, 215 F.Supp.2d at 917
(quoting Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S.Ct. 2168, 141
L.Ed.2d 500 (1998)).
Due process requires that this Court hold a statute, ordinance, or resolution void
for vagueness “if its prohibitive terms are not clearly defined such that a person of
ordinary intelligence can readily identify the applicable standard for inclusion and
exclusion.” United Food, 163 F.3d at 358-59. See Grayned v. City of Rockford, 408 U.S.
104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
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Not only do “[v]ague laws … trap the innocent by not providing fair warning,” but
laws that fail to provide explicit standards guiding their enforcement “impermissibly
delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
application.” Id. at 108-09, 92 S.Ct. 2294; Leonardson, 896 F.2d at 196.
“The absence of clear standards guiding the discretion of the public official vested
with the authority to enforce the enactment invites abuse by enabling the official to
administer the policy on the basis of impermissible factors.” United Food, 163 F.3d at
359; Leonardson, 896 F.2d at 198.
In the context of the First Amendment’s protection of speech, the mischief that
can be caused by vague statutes and rules is well-known:
Quite simply, “the danger of censorship and of abridgment of our precious First
Amendment freedoms is too great where officials have unbridled discretion over a
forum’s use.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct.
1239, 43 L.Ed.2d 448 (1975).
We will not presume that the public official responsible for administering a
legislative policy will act in good faith and respect a speaker’s First Amendment rights;
rather, the vagueness “doctrine requires that the limits the [government] claims are
implicit in its law be made explicit by textual incorporation, binding judicial or
administrative construction, or well- established practice.” City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988).
Section 5.8 of the City of Albion Charter must be evaluated to determine whether
they can be read to prohibit protected speech, and whether they contain sufficient
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standards to allow application and enforcement in a uniform, nonarbitrary manner
without leaving undue discretion in the enforcing official to decide if certain speech
violates their provisions.” [from Smith ex rel. Smith v. Mount Pleasant Public Sch., 285
F.Supp.2d 987 (E.D. Mich. 2003)].
Plaintiff adopt the legal reasoning and rationale, in full, of the Smith ex rel Smith v
Mt Pleasant Public Schools case.
In this case, Section 5.8 of the City of Albion Charter does not make clear that
any violation would render one subject to criminal prosecution.
There is no penalty provision to Chapter 5 of the City of Albion Charter.
Criminal ordinances that comprise the City of Albion Code of Ordinances, which
is part of the Charter, are in Chapter 58 entitled “Offenses and Miscellaneous
Provisions.”
The community would have fair warning that a violation of Chapter 58 would
lead to criminal sanctions.
But not Chapter 5 of the City of Albion Charter, which addresses regulations for
City Council.
Under Defendants’ version and interpretation of the City of Albion Charter, the
entire City of Albion council would be subject to criminal prosecution and up to 90 days
in jail if the entire City Council did not meet in the established council chambers and hold
at least 2 regular meetings in each month. See Section 5.6(a).
Would city council’s failure to hold 2 regular meetings each month be a strict
liability offense?
Would there be a mens rea requirement to establish a violation of Section 5.6(a)?
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Is there a willfulness or intentional conduct element in order to violate Section
5.6(a)?
All of these outstanding questions lead to the conclusion that Section 5.8 and
Section 5.6 cannot be construed to confer criminal sanctions for any such violation of
these sections of the Charter.
Such interpretation reaches a substantial number of impermissible applications
relative to the law’s legislative sweep. New York v Ferber, 458 US 747 (1982).
Further, the word “direct” is not defined in Section 5.8.
It is unknown whether “direct” refers to actions or whether the word “direct” can
reference words alone.
Plaintiff asserts that “direct” is an action and not simply words.
One simply does not know the answer to this question, and the 10th District
Court’s struggle to draft a jury instruction for Plaintiff’s jury trial shows the
constitutional issues with the language of Section 5.8.
Further, Section 5.8 has arbitrary and discriminatory enforcement.
To Plaintiff’s knowledge, Section 5.8 has never been used to criminally prosecute
anyone in the entire history of the ordinance, which was enacted in 1998, upon
information and belief.
Plaintiff asserts that Section 5.8 will never be used to criminally prosecute anyone
ever again.
In this case, Defendants weaponized Section 5.8 of the City of Albion Charter, an
unconstitutional policy, to investigate Defendants’ political enemy (Plaintiff) and to
politically prosecute Plaintiff.
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That is the type of arbitrary and discriminatory enforcement that renders Section
5.8 unconstitutional.
Further, Section 5.8 invites abuse by enabling the officials to administer the
policy on the basis of impermissible factors. Smith ex rel Smith; supra.
And Plaintiff’s case is the quintessential example of abusing such an ordinance, as
Plaintiff was investigated and politically prosecuted by Plaintiff’s political enemies.
Accordingly, Defendants are liable under Monell and its progeny.
Further, Defendants are final policy makers whose decisions are not subject to
review by another official or governmental body. McMillian v Monroe County, 520 US
781 (1997).
Defendants enacted the unconstitutional policy of Section 5.8 and the punishment
provision of the City of Albion Charter.
The unconstitutional policies violated Plaintiff’s constitutional rights.
Accordingly, Defendants are liable under Monell and its progeny.
Further, §1983 claims for failure to train employees requires proof that: (a) the
training practices were inadequate, (b) the local government entity was deliberately
indifferent to the rights of others in adopting them, such that the ‘failure to train reflects a
deliberate or conscious choice by the local government entity, and (c) the alleged
deficiency in the training procedures actually caused the plaintiff’s injury. City of
Canton; Id.
Plaintiffs must also prove that “the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights,
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that the policymakers of the [local government entity] can reasonably be said to have
been deliberately indifferent to the need.” Id.
In this case, Defendants violated Plaintiff’s First Amendment rights and Fourth
Amendment rights – by unconstitutionally infringing upon Plaintiff’s ability to criticize
government officials and to complain about unconstitutional search and seizures – and by
unlawfully engaging in a warrantless search of the cellular phone of LaTonya Rufus,
whereby Defendant Kipp and Defendant Harkness accessed the private Facebook
Messenger account to which Plaintiff had a protected privacy interest in such account.
There was an obvious need to train employees on First Amendment law and
Fourth Amendment law, particularly in light of the Rilvey v California and Carpenter v
United States cases.
The inadequacy of the training by Defendants was so likely to result in the
violation of constitutional rights, which is precisely what happened to Plaintiff in this
case.
Further, the customs and practices of the unlawful search that occurred in this
case, amount to policy for Defendants.
Plaintiff asserts that the Defendants, who ratified the customs and practices of the
unlawful phone search, had actual or constructive knowledge of the unlawful search
customs and practices. Deaton v Montgomery County, 989 F2d 885 (6th Cir 1993).
Accordingly, Defendants are liable under Monell and its progeny.
In engaging in Monell liability against Plaintiff, Defendants acted with reckless,
wanton, or callous indifference to Plaintiff’s protected constitutional rights, which entitles
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Plaintiff to punitive damages in an amount appropriate to punish Defendants and to make
an example of them to the community.
Plaintiff is entitled to compensatory damages for Defendants’ violation of
Plaintiff’s constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard,
565 US 118 (2012).
Plaintiff is entitled to punitive damages for Defendants’ reckless or callous
indifference to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
Plaintiff is entitled to recover costs, including reasonable attorney fees, pursuant
to 42 USC § 1988.
And Plaintiff is entitled to prospective injunctive and declaratory relief and a
permanent injunction prohibiting further violations of Plaintiff’s First Amendment rights.
Count IV: Malicious Prosecution (Against Defendants City of Albion, Smith, Reid,
Williamson, Atchison, Kipp, Kern, Harkness, and Wygant)
(Fourth Amendment; 42 USC § 1983)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 534 of this
Complaint.
The Fourth Amendment guarantees the right to be free from unjust prosecution.
Jackson v City of Cleveland, 925 F3d 793 (6th Cir 2019).
The tort of malicious prosecution remedies injuries associated not with the
absence of legal process but with the wrongful institution of legal process.
A valid claim for malicious prosecution requires a plaintiff to allege facts
showing: “(1) a criminal prosecution was initiated against the plaintiff and the defendant
made, influenced, or participated in the decision to prosecute; (2) there was no probable
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cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the
plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the
criminal proceeding was resolved in the plaintiff’s favor.” Robertson v. Lucas, 753 F.3d
606, 616 (6th Cir. 2014).
The Sixth Circuit has noted that, while malice is not required, a defendant’s
participation in the prosecution must be “deliberate–i.e., given with knowledge of, or
reckless disregard for, its falsity.
‘Allegations of negligence or innocent mistake are insufficient.’” Johnson v.
Moseley, 790 F.3d 649, 655 (6th Cir. 2015) (citations omitted).
“A ‘reckless disregard for the truth’ is demonstrated by showing that the officers .
. . had obvious reasons to doubt the accuracy of the information reported, or failed to
inform the judicial officer of facts they knew would negate probable cause.” Beauchamp
v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003).
“Providing reports, affidavits, or other investigative materials containing
falsehoods, omissions, or misstatements to a prosecutor can constitute participation when
(1) those materials formed the basis of the charge, and (2) the falsehoods, omissions, or
misstatements were made deliberately or with reckless disregard for the truth.” Meeks v
City of Detroit, 727 F App’x 171 (6th Cir 2018).
In this case, it is undisputed that the named defendants initiated a criminal
prosecution was initiated against Plaintiff.
Defendants Smith, Reid, Williamson, and Atchison all voted to hire a special
prosecutor in order to criminally prosecute Plaintiff.
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Defendants Kipp and Kern participated and acquiesced in the unlawful search of
the cellular phone of LaTonya Rufus, which revealed the private Facebook Messenger
messages that formulated the allegations that Plaintiff violated Section 5.8 of the City of
Albion Charter.
Then Defendants Kipp and Kern conspired with Defendants Smith, Reid,
Williamson, and Atchison to push for an investigation and prosecution of Plaintiff.
Defendant Harkness directed Defendant Kipp to unlawfully search the cellular
phone of LaTonya Rufus.
Defendant Harkness then conspired with Defendants Kipp and Kern and Smith,
and Reid, and Williamson, and Atchison to investigate and criminally prosecute Plaintiff.
Defendant Harkness then actively initiated the criminal complaint and police
report against Plaintiff with Defendant Wygant.
Defendant Wygant then swore to and procured an arrest warrant against Plaintiff.
The investigative materials provided to the examining magistrate for this case,
which was the two page police report (and potentially attached Thrun Report), contained
material omissions: namely the full set of text messages between Plaintiff and Garrett
Brown and LaTonya Rufus, which showed the insubordination and disrespect from
Defendant Kipp toward LaTonya Rufus, thus providing background and context to the
written statement from Plaintiff, “Get rid of him!”
The investigative materials provided to the examining magistrate for this case,
which was the two page police report (and potentially attached Thrun Report), contained
additional material omissions: the public statements and public responses and public
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comments made by Plaintiff (except the Attachment 3) giving her explanation and intent
and background and context of the situation.
The investigative materials provided to the examining magistrate for this case,
which was the two page police report (and potentially attached Thrun Report), contained
additional material omissions: the fact that the “Get rid of him!” written statement was
made at a private residence, from a private device, during non-work hours, in Plaintiff’s
capacity as a private citizen, and on a matter of public concern, which was protected
political speech (no mention of the First Amendment in the Thrun Report).
The investigative materials provided to the examining magistrate for this case,
which was the two page police report (and potentially attached Thrun Report), contained
additional material omissions: that the private Facebook Messenger messages, including
the “Get rid of him!” message, were retrieved through an unlawful and warrantless search
of the cellular telephone of LaTonya Rufus.
Next, there was no probable cause for the criminal prosecution against Plaintiff.
“[P]rotected speech cannot serve as the basis” for probable cause. Leonard v.
Robinson, 477 F.3d 347, 358 (6th Cir. 2007) (citing Sandul v. Larion, 119 F.3d 1250,
1256 (6th Cir. 1997)) [an officer may not base his or her probable cause determination on
speech protected by the First Amendment].
While protected speech can be evidence that a speaker committed a separate
crime, the First Amendment bars its use as the sole basis for probable cause. See Reichle,
566 U.S. at 668; see also Nieves v. Bartlett, 139 S. Ct. 1715, 1722, 1724 (2019); Novak v
City of Parma, 932 F.3d at 431–32.
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And if the freedom of speech secured by the First Amendment includes the right
to curse at a public official, then it surely includes the right to say “[get] rid of” a public
official. Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942) (“‘You are a God
damned racketeer’ and ‘a damned Fascist’”); Sandul v. Larion, 119 F.3d 1250, 1255 (6th
Cir. 1997) (“In 1990 when [the defendant] was arrested for his use of the ‘f – word,’ it
was clearly established that speech is entitled to First Amendment protection.”); Buffkins
v. City of Omaha, 922 F.2d 465, 467 (8th Cir. 1990) (“I will have a nice day, asshole.”)
Further, Section 5.8 of the City of Albion Charter is an unconstitutional
ordinance, both facially and as applied to Plaintiff.
There can be no probable cause to prosecute based upon an unconstitutional
ordinance.
Further, Plaintiff was deprived of liberty beyond the initial seizure for this case.
Plaintiff had to participate in pretrial release and suffered a loss of liberty and
restriction of movement while awaiting trial. Miller v Maddox, 866 F3d 386 (6th Cir
2017).
Finally, the criminal proceeding was resolved in Plaintiff’s favor, with the swift
and decisive not guilty verdict after approximately 20 minutes of deliberation.
In engaging in malicious prosecution against Plaintiff, Defendants acted with
reckless, wanton, or callous indifference to Plaintiff’s protected constitutional rights,
which entitles Plaintiff to punitive damages in an amount appropriate to punish
Defendants and to make an example of them to the community.
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Plaintiff is entitled to compensatory damages for Defendants’ violation of
Plaintiff’s constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard,
565 US 118 (2012).
Plaintiff is entitled to punitive damages for Defendants’ reckless or callous
indifference to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
Plaintiff is entitled to recover costs, including reasonable attorney fees, pursuant
to 42 USC § 1988.
And Plaintiff is entitled to prospective injunctive and declaratory relief and a
permanent injunction prohibiting further violations of Plaintiff’s First Amendment rights.
Count V: Conspiracy to Interfere with Civil Rights (Against All Defendants)
(42 USC § 1985)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 568 of this
Complaint.
42 USC § 1985 provides, in pertinent part:
(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway
or on the premises of another, for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the laws; or if two or more persons
conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled
to vote, from giving his support or advocacy in a legal manner, toward or in favor of the
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election of any lawfully qualified person as an elector for President or Vice President, or
as a Member of Congress of the United States; or to injure any citizen in person or
property on account of such support or advocacy; in any case of conspiracy set forth in
this section, if one or more persons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or more of the
conspirators.
The standard for proving a civil conspiracy was set forth by the Sixth Circuit in
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985):
A civil conspiracy is an agreement between two or more persons to injure another
by unlawful action.
Express agreement among all the conspirators is not necessary to find the
existence of a civil conspiracy.
Each conspirator need not have known all of the details of the illegal plan or all of
the participants involved.
All that must be shown is that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that an overt act was
committed in furtherance of the conspiracy that caused injury to the complainant. Id.; see
also Gillispie, 2020 WL 5629677, at *40.
“[T]o be successful in claiming a conspiracy to violate the plaintiff’s
constitutional rights, the plaintiff “must show that (1) a single plan existed, (2) the
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conspirators shared a conspiratorial objective to deprive the plaintiff[ ] of [his or her]
constitutional rights [or federal statutory rights], and (3) an overt act was committed in
furtherance of the conspiracy that caused the injury” to the plaintiff.” Gillispie, 2020 WL
5629677, at *40 (citing Jackson v. City of Cleveland, 925 F.3d 793, 817 (6th Cir. 2019),
cert. denied, ––– U.S. ––––, 140 S. Ct. 855 (Jan. 13, 2020) (internal quotation marks
omitted); Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011)); see also Marvaso
v. Sanchez, 971 F.3d 599, 606 (6th Cir. 2020) (describing the elements of a §1983
conspiracy claim); Weser, 965 F.3d at 516 (same).
In this case, as demonstrated above, all named defendants had a single plan: to
oust Plaintiff from city council and to make sure that Plaintiff stayed away from city
council by criminally prosecuting Plaintiff and tarnishing Plaintiff’s reputation in the
community.
All named defendants shared the objective of this single plan.
All named defendants committed an overt act in furtherance of this conspiracy:
Kipp by conducting the unlawful search, Harkness by directing the unlawful search, Kipp
by filing the harassment and defamation complaint, Defendant Nelson for initiating the
recall petition with Defendant Smith, the city council defendants by initiating a political
investigation against Plaintiff and by voting to hire an investigator to investigate the
bogus claims and by voting to hire a special prosecutor to prosecute Plaintiff, Defendant
Harkness for initiating the formal police report against Plaintiff, Defendant Wygant for
initiating the criminal complaint and obtaining the arrest warrant to criminally prosecute
Plaintiff.
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In engaging in a conspiracy against Plaintiff, Defendants acted with reckless,
wanton, or callous indifference to Plaintiff’s protected constitutional rights, which entitles
Plaintiff to punitive damages in an amount appropriate to punish Defendants and to make
an example of them to the community.
Plaintiff is entitled to compensatory damages for Defendants’ violation of
Plaintiff’s constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard,
565 US 118 (2012).
Plaintiff is entitled to punitive damages for Defendants’ reckless or callous
indifference to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
Plaintiff is entitled to recover costs, including reasonable attorney fees, pursuant
to 42 USC § 1988.
And Plaintiff is entitled to prospective injunctive and declaratory relief and a
permanent injunction prohibiting further violations of Plaintiff’s First Amendment rights.
Count VII: Policy is Unconstitutional (Against All Defendants)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 584 of this
Complaint.
For the reasons stated above, sections of Defendants’ Section 5.8 of the City of
Albion Charter is unconstitutional on their face and as applied to EB.
Plaintiffs seek an order declaring Section 5.8 of the City of Albion Charter to be
unconstitutional.
Plaintiffs further seek an injunction preventing Defendants from enforcing
Section 5.8 of the City of Albion Charter as a criminal offense.
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Count VIII: Policy and Custom is Unconstitutional in Violation of Fourth
Amendment (Against All Defendants)
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 588 of this
Complaint.
For the reasons stated above, the policy and custom of searching cellular phones
of employees without a search warrant is unconstitutional and in violation of the Fourth
Amendment and the Michigan Constitution.
Plaintiffs seek an order declaring the policy and custom of searching cellular
phones of employees without a search warrant to be unconstitutional.
Plaintiffs further seek an injunction preventing Defendants from further searching
cellular phones of employees without a search warrant.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests the Honorable Court to:
A. Grant Plaintiff damages in the amount of 5 million dollars, as described above
and below
B. Grant Plaintiff compensatory damages for Defendants’ violation of Plaintiff’s
constitutional rights. Carey v Piphus, 435 US 247 (1978); Minneci v Pollard, 565
US 118 (2012).
C. Grant Plaintiff punitive damages for Defendants’ reckless or callous indifference
to Plaintiff’s federally protected rights. Smith v Wade, 461 US 30 (1983).
D. Grant Plaintiff costs, including reasonable attorney fees, pursuant to 42 USC §
1988 and any other state or federal law.
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E. Declare and making a finding that Defendants acted outside the scope of their
authority in prosecuting Plaintiff, in violation of Plaintiff’s First Amendment
rights.
F. Declare and make a finding that Defendants engaged in First Amendment
retaliation against Plaintiff.
G. Declare and make a finding that Defendants are responsible for Monell liability,
as stated above.
H. Grant Plaintiff prospective injunctive and declaratory relief and a permanent
injunction prohibiting further violations of Plaintiff’s First Amendment rights.
I. Compel Defendants to make changes to their policies, practices, customs, and
procedures by stopping the unlawful First Amendment violations and retaliating
against private citizens who engage in constitutionally protected political speech.
Implementing such changes will not impose undue fiscal and administrative
burdens upon Defendants. Matthews v Eldridge, 424 US 319 (1976).
J. Issue an order declaring that Section 5.8 of the City of Albion Charter to be
unconstitutional, facially and as applied to Plaintiff
K. Grant an injunction preventing Defendants from enforcing Section 5.8 of the City
of Albion Charter to criminally prosecute any individual
L. Issue an order declaring the warrantless search of an employee’s cellular phone
policy and custom to be unconstitutional
M. Grant an injunction preventing Defendants from implementing the
unconstitutional warrantless search of employees’ phones policy and custom, and
N. Grant any other relief as just and equitable.
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Dated: December 30, 2022 /s/ Eric J. Sheppard
By: Eric J. Sheppard, P71914
Attorney for Plaintiff
2109 Hamilton Road, Suite 206
Okemos MI 48864
Ph: 517-618-1580
Fx: 517-913-6321
ericsheppard16@gmail.com
I DECLARE UNDER THE PENALTIES OF PERJURY THAT THE COMPLAINT HAS
BEEN EXAMINED BY ME AND THAT ITS CONTENTS ARE TRUE TO THE BEST OF
MY INFORMATION, KNOWLEDGE, AND BELIEF.
Dated: December 30, 2022 /s/ Sonya Brown
By: Sonya Brown
JURY DEMAND
Plaintiff hereby demands a trial by jury.
Dated: December 30, 2022 /s/ Eric J. Sheppard
By: Eric J. Sheppard, P71914
Attorney for Plaintiff
2109 Hamilton Road, Suite 206
Okemos MI 48864
Ph: 517-618-1580
Fx: 517-913-6321
ericsheppard16@gmail.com

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