The 6th U.S. Circuit Court of Appeals has held that a police officer was not entitled to qualified immunity when he evicted a fan for heckling a player at a Chicago Indians baseball game. The fan, Jeffery Swiecicki, sued the officer for violation of his constitutional right to free speech.
The incident occurred on September 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’s yell “Branyon, you suck” and “Branyon, you have a fat ass” during the game. He also claimed that he saw 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 ten 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 claiming Swiecicki jerked his arm away, and Swiecicki claiming that he put up no physical resistance. Either way, the plaintiff was slammed to the ground as Delgado arrested him.
Criminal charges against Swiecicki were ultimately dropped or dismissed.
The plaintiff 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, (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.
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 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).
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
Attorneys of Record: (for appellants) Stephen W. Gard of Cleveland, Ohio. Thomas R. Wolf of Reminger & Reminger in Cleveland, Ohio.
