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By Holt Hackney
In a majority decision, the 6th
U.S. Circuit Court of Appeals has held that a police officer wasn’t entitled
to qualified immunity when he evicted a fan for heckling a player at a
Cleveland Indians baseball game. The fan, Jeffery Swiecicki, sued the
officer for violation of his constitutional right to free speech.
Incident Recap
The incident occurred on Sept. 25, 2001, when Swiecicki and several of his
friends attended an Indians game at Jacobs Field. During the game, the
plaintiff heckled left fielders from both teams and consumed two beers. City
of Cleveland police officer Jose Delgado was in Swiecicki’s section working
as a security guard. While Delgado was wearing his uniform and badge, he was
officially off duty.
Jacobs Field is governed by the following rule pertaining to fan behavior:
“Persons using obscene or abusive language, or engaging in any other
antisocial conduct offensive to those around them, will be asked by
Cleveland Indians personnel to cease this conduct. If the offensive conduct
persists, those involved will be subject to ejection from the ballpark.”
Delgado claimed he heard Swiecicki yell, “Branyon, you suck” and “Branyon,
you have a fat ass” during the game. He also claimed that he saw that
Swiecicki had a beer in his hand at the time of the allegedly offensive
comments, a fact that was in dispute. Regardless, Delgado approached
Swiecicki and told him to “cut it out.” After he got no response from
Swiecicki, Delgado told him, “We can do this the easy way or the hard way.”
A few seconds later, Delgado grabbed the plaintiff by the arm and began
escorting him toward the stadium exit.
Swiecicki claimed that he asked Delgado “on more than 10 occasions” what he
had done to prompt his actions. Further, the plaintiff’s brother and his
friend followed behind the two, also asking what Swiecicki had done.
The two parties dispute what happened next. Delgado claimed Swiecicki jerked
his arm away, and Swiecicki claimed that he put up no physical resistance.
Either way, the plaintiff was slammed to the ground as Delgado arrested him.
 After
the incident, Swiecicki was charged with aggravated disorderly conduct
pursuant to Cleveland Codified Ordinance § 605.03 and with resisting arrest
pursuant to Cleveland Codified Ordinance § 615.08. While he was found guilty
by the Cleveland Municipal Court of the lesser-included offense of
disorderly conduct and of resisting arrest, the Ohio Court of Appeals
reversed his convictions based on insufficiency of the evidence.
The plaintiff then sued Delgado in civil court, claiming he “violated his
constitutional rights by arresting him (1) based on the content of his
speech in violation of the First Amendment, (2) without probable cause in
violation of the Fourth Amendment, and (3) through the use of excessive
force in violation of the Fourth Amendment.” In ruling for Delgado, the
district court found that “qualified immunity” acts as a “complete bar” to
the federal claims. Swiecicki appealed.
In Appeals
One of the first determinations the appeals court sought to make was whether
Delgado was a state actor “during the entire incident.” The panel confirmed
the defendant’s status, not only because of his “presentation” (uniform,
badge and weapons), but also because of his statement: “We can do this the
easy way or the hard way.”
To determine whether the defendant was shielded by qualified immunity, the
appeals court considered whether “a constitutional right had been violated”
and “whether that right was clearly established. Estate of Carter v. City of
Detroit, 408 F. 3d 305, 310-11 (6th Cir. 2005) (6th Cir. 2005) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001).
“In addition to the two steps listed above, this court occasionally performs
a third step in the qualified immunity analysis. See Estate of Carter, 408
F.3d at 311 (‘Panels of this court occasionally employ a three-step
qualified immunity analysis, as opposed to the two-step analysis set forth
here. ... [B]oth the two-step approach and the three-step approach can be
said to capture the holding of [Saucier].’) When utilized, this third step
requires inquiry into ‘whether the plaintiff offered sufficient evidence to
indicate that what the official allegedly did was objectively unreasonable
in light of the clearly established constitutional rights.’ Champion, 380
F.3d at 905 (citation and quotation marks omitted). The Supreme Court since
Saucier has continued to use the two-step approach to qualified immunity,
but this court has noted that ‘the three-step approach may in some cases
increase the clarity of the proper analysis.’ See Estate of Carter, 408 F.3d
at 311.”
The district court had concluded that Delgado did have “probable cause” to
approach the plaintiff and ultimately make the arrest based on his
“disorderly conduct.” An appeals court disagreed, pointing to Swiecicki’s
testimony that he was not “inappropriately loud or offensive” and the fact
that “no one actually complained about his behavior.” It found that the lack
of clarity meant there were genuine issues of fact left unresolved, and it
thus reversed the grant of qualified immunity on the Fourth Amendment claim.
Next, the court turned to whether Delgado violated the plaintiff’s First
Amendment rights to free speech when he arrested him. Delgado claimed that
those rights were not available because Jacobs Field is a private park.
The panel, however, noted that the plaintiff wasn’t challenging “the
authority of Jacobs Field officials to eject him from the game,” instead
challenging “Delgado’s decision as a state actor to threaten and later
actually arrest him for an alleged violation of city ordinances.” Thus, it
held that the First Amendment protections applied. Swiecicki v. Delgado; 6th
Cir.; No. 05-4036; 9/15/06.
Holt Hackney
is the editor of Sports Litigation Alert (www.sportslitigationalert.com).
This article has been reprinted with the permission of Hackney Publications.
For more information, e-mail
info@sportslitigationalert.com. |
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