Jeffrey Swiecicki v. Jose Delgado

While attending a Cleveland Indians baseball game, Jeffrey Swiecicki, along with several of his friends, loudly cheered for some players and heckled others. Officer Jose Delgado, an off-duty police officer for the City of Cleveland, was in full uniform and working for the ballpark as a security guard. He allegedly heard Swiecicki using profane language. Delgado asked Swiecicki to halt his behavior or leave the stadium. When Swiecicki did not respond, Delgado placed Swiecicki in the "escort position" and began leading him out of the bleachers. In the course of leaving the stadium, Delgado arrested Swiecicki and wrestled him to the ground. Swiecicki was later charged with and convicted of disorderly conduct and resisting arrest, but his convictions were overturned on appeal. See City of Cleveland v. Swiecicki, 149 Ohio App.3d 77, 82, 775 N.E.2d 899 (Ohio Ct.App.2002).

He subsequently filed an action in federal district court pursuant to 42 U.S.C. § 1983, alleging that Delgado had violated his constitutional rights by arresting him based on the content of his speech, had effectuated the arrest without probable cause, and had used excessive force during the arrest. Swiecicki also raised various state-law claims. The district court granted summary judgment to Delgado, holding that the statute of limitations had run on Swiecicki's excessive-force claim, that Delgado was entitled to qualified immunity on the remaining federal claims, that he was entitled to judgment as a matter of law on the state-law claim of malicious prosecution, and that Swiecicki's other state-law claims should be dismissed without prejudice. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

On September 25, 2001, Swiecicki and several of his friends attended a Cleveland Indians baseball game at Jacobs Field. During the game, Swiecicki heckled members of both teams, particularly those playing the left field position, and consumed two beers.

At all relevant times, Delgado, a City of Cleveland police officer, was working as a security guard and was stationed at a tunnel near the bleachers where Swiecicki and his friends were seated. Delgado was officially off-duty, but he was wearing his police uniform with his badge and was carrying the weapons issued by the police department. Wilfred Labrie, a host greeter for Jacobs Field, was assigned to a section near Delgado. Both of these men were hired to provide assistance and to monitor the fans' behavior.

In conjunction with Gateway Economic Development Corporation (Gateway), the owner of Jacobs Field, the Indians promulgated various rules and regulations to govern fan behavior. The rule relevant to the present case provides as follows:

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.

Although the fan-behavior rule prohibits offensive or abusive language, no similar rule prohibits loud yelling, heckling, or booing. Swiecicki admits that he led a group of fans in various heckles and cheers. He also contends that "almost the entire bleachers were yelling."

Around the seventh inning, both Delgado and Labrie allegedly heard loud, profane language coming from the bleachers. Delgado claims that he heard Swiecicki yell "Branyon, you suck" and "Branyon, you have a fat ass." Swiecicki admits to loud heckling, but denies that he used profane language. Although Swiecicki also denies that he was intoxicated, Delgado contends that he saw Swiecicki with a beer in his hand at the time of the offensive comments. Labrie, however, testified that neither the bleachers nor Swiecicki were directly visible from where Labrie and Delgado were stationed.

Based upon Delgado's perception of Swiecicki's comments and realizing that Swiecicki might be intoxicated, Delgado approached Swiecicki and told him to "cut it out." Swiecicki did not respond. Although no fan specifically requested that Delgado take action to stop Swiecicki's behavior, Delgado alleges that a man with a young daughter later thanked Delgado for asking Swiecicki to lower his voice. After again motioning to Swiecicki to halt his behavior with no success, Delgado told Swiecicki: "We can either do this the easy way or the hard way." Swiecicki then approached Delgado. Delgado moved toward Swiecicki, grabbed his arm and shirt to place him into the "escort position," and led him towards the tunnel to exit the stadium.

While Delgado was escorting Swiecicki through the tunnel, Swiecicki asked Delgado "on more than 10 occasions" what he had done to prompt Delgado's actions. Delgado provided no response. Swiecicki's brother Scott, along with three other men, began to follow Delgado, also asking Delgado what Swiecicki had done wrong. At this point, Delgado alleges that Swiecicki jerked his arm away to break from Delgado's grasp. Swiecicki denies any physical resistance. Delgado then used an "arm bar" and wrestled Swiecicki to the ground, with Swiecicki hitting his head on a door before falling to his knees. On the ground, Delgado pushed Swiecicki's face into the concrete and continued to apply pressure to his right arm despite Swiecicki's pained expression. Delgado then told Swiecicki that he was under arrest.

Swiecicki was later charged with aggravated disorderly conduct pursuant to Cleveland Codified Ordinance § 605.03 and with resisting arrest pursuant to Cleveland Codified Ordinance § 615.08. 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, however, reversed his convictions based on insufficiency of the evidence. See Swiecicki, 149 Ohio App.3d at 82, 775 N.E.2d 899.

Swiecicki then filed the present suit in federal district court pursuant to 42 U.S.C. § 1983, alleging that Delgado had 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. Swiecicki also accused Delgado of assault, battery, false imprisonment, and malicious prosecution, all in violation of Ohio law. The district court granted summary judgment in favor of Delgado, holding that qualified immunity acts as a complete bar to all of Swiecicki's federal claims. It also granted summary judgment to Delgado on the malicious-prosecution claim and dismissed the remaining state-law claims without prejudice for lack of jurisdiction.

We review de novo the district court's grant of summary judgment. Int'l Union v. Cummins, 434 F.3d 478, 483 (2006). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. The statute of limitations as applied to Swiecicki's Fourth Amendment excessive-force claim

Swiecicki first argues that the district court erred in holding that his Fourth Amendment excessive-force claim was barred by the statute of limitations. The district court's determination is a question of law that we review de novo. Wolfe v. Perry, 412 F.3d 707, 713 (6th Cir.2005) (reversing a district court's determination that the complaint was filed after the statute of limitations had run). Because Congress did not specify a statute of limitations for claims made pursuant to § 1983, we must borrow the statute of limitations governing personal injury claims in Ohio. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003) (holding that "federal courts must borrow the statute of limitations governing personal injury actions in the state in which the section 1983 action was brought"). The appropriate statute of limitations in this case is two years. See id. When the statute of limitations begins to run depends on the nature of the claim under § 1983. Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a § 1983 claim for malicious prosecution does not accrue "until the criminal proceedings have terminated in the plaintiff's favor").

Typically, the statute of limitations for filing an action based on excessive force begins to run at the time the injury is discovered, which in most cases is at the time of the arrest. If, however, a cause of action under § 1983 would necessarily imply the invalidity of the plaintiff's underlying criminal conviction, the statute of limitations does not begin to run until the underlying conviction is reversed or expunged. Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir.1999) (holding that the statute of limitations for a criminal defendant's § 1983 claim did not begin to run until the underlying criminal proceedings had concluded in his favor). Swiecicki filed his complaint on December 19, 2003, more than two years after his arrest but just over one year after his underlying convictions were reversed. The key inquiry, then, is whether Swiecicki's excessive-force claim pursuant to § 1983 would have implied the invalidity of his criminal convictions.

This court has previously held, in an unpublished decision, that a claim of excessive force does not necessarily relate to the validity of the underlying conviction and therefore may be immediately cognizable. Hodge v. City of Elyria, 126 Fed.Appx. 222, 225 (6th Cir.2005) (holding that the statute of limitations began to run at the time of arrest because "Hodge's conviction related to drug possession and tampering with evidence [was] wholly unrelated to excessive force."). The district court below seized on this holding and, with no further analysis, declared that Swiecicki's excessive-force claim was barred by the statute of limitations. What the district court failed to recognize, however, is that in order to determine whether the § 1983 claim would imply the invalidity of the offense, "the court must look both to the claims raised under § 1983 and to the specific offenses for which the § 1983 claimant was convicted." Hughes v. Lott, 350 F.3d 1157, 1161 n. 2 (11th Cir.2003) (emphasis added) (interpreting Heck, 512 U.S. at 487 n. 6, 114 S.Ct. 2364); see also Heck, 512 U.S. 487 n. 6, 114 S.Ct. 2364 (suggesting that the statute of limitations for a § 1983 claim based on an unreasonable seizure would not begin to run until the plaintiff's underlying conviction for resisting arrest had been overturned because, in order to prevail on his § 1983 claim, the plaintiff would have to negate an element of the particular offense for which he was convicted). Hodge is therefore not dispositive both because it is unpublished and because the underlying offenses in Hodge were unrelated to the claim of excessive force.

Cleveland's resisting-arrest ordinance provides that "[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another." Cleveland Cod. Ord. § 615.08. A conviction for resisting arrest thus requires that the underlying arrest be lawful. This court has held in an unpublished opinion that such a conviction necessarily includes a finding that the police officer did not use excessive force. See White v. Ebie, 1999 WL 775914, at *1 (6th Cir.1999) (analyzing the relationship between a conviction for resisting arrest pursuant to the applicable Ohio statute and a claim of excessive force pursuant to § 1983). The White court relied on Ohio law, which provides that an arrest is not lawful if the arresting officer uses excessive force. Id.; see also City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735, 740 (Ohio 1975) ("[I]n the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties. . . .") (emphasis added). We agree with White's analysis.

White and the Ohio rule of law on which it relies, then, suggest that Swiecicki's excessive-force claim under § 1983 would have necessarily implied the invalidity of his conviction for resisting arrest — thus indicating that the statute of limitations did not begin to run until Swiecicki's convictions were overturned. In City of Cleveland v. Murad, 84 Ohio App.3d 317, 616 N.E.2d 1116, 1120 (Ohio Ct.App.1992), however, the Eighth District of the Ohio Court of Appeals, which includes Cleveland, limited the rule announced in Fraley to cases in which the excessive force by the arresting officer occurred prior to the suspect's resistance. Because the suspect in Murad admitted that he "resisted arrest so forcefully that it took three officers and a civilian to subdue him," the court concluded that the suspect "himself was the cause of the force used in his arrest." Id.

The Murad court thus upheld the suspect's conviction for resisting arrest, rejecting the argument that his resistance preceding the force used to arrest him was justifiable. Id.; see also City of Columbus v. Purdie, Nos. 84AP-127 & 84AP-128, 1984 WL 6005, 1984 Ohio App. LEXIS 11679, at *8-9 (Ohio Ct.App. Nov. 29, 1984) (unpublished) (upholding a defendant's conviction for resisting arrest where "the use of force [by police] was in response to the conduct of defendant") (emphasis added). In other words, Murad implies that in some cases a resisting-arrest conviction may stand even if excessive force was used after the suspect's resistance.

A synthesis of these cases indicates that we must consider the nature and extent, if any, of Swiecicki's resistance, paying particular attention to whether Swiecicki's alleged resistance occurred prior to the alleged use of excessive force by Delgado. If, as Swiecicki claims, Delgado's use of force was essentially unprovoked, the rule from White, 1999 WL 775914, at *1, provides that the statute of limitations did not begin to run until Swiecicki's convictions were overturned by the Ohio Court of Appeals. Ohio law, as interpreted by White, explicitly provides that a lawful arrest is a necessary element of a conviction for resisting arrest. Id. On that basis, Swiecicki's excessive-force claim pursuant to § 1983 would have necessarily implied the invalidity of his conviction for resisting arrest because if the amount of force used was unlawful, an essential element of the underlying offense for resisting arrest would have been negated. See Heck, 512 U.S. at 487 n. 6, 114 S.Ct. 2364 (explaining that a plaintiff cannot bring a § 1983 claim if he would have to negate an element of the underlying offense for which he has been convicted). The statute of limitations, under Swiecicki's version of the facts, therefore did not begin to run until the Ohio Court of Appeals invalidated his convictions.

On the other hand, if Swiecicki did in fact jerk his arm away from Delgado's grasp, the analysis from Murad suggests that the statute of limitations for Swiecicki's excessive-force claim began to run at the time of his arrest. The key question is one of timing. If Swiecicki resisted (i.e., jerked his arm away), and if the resistance occurred before the use of force by Delgado, his conviction for resisting arrest would not be called into question even if he later recovered on a § 1983 excessive-force claim. Under these circumstances, the statute of limitations would have began to run at the moment of Swiecicki's arrest. See Shamaeizadeh, 182 F.3d at 396.

Our evaluation of the statute-of-limitations issue, however, requires us to consider the facts as Swiecicki has alleged them. See id., 182 F.3d at 395-96 (noting that the Seventh, Eighth, and Eleventh Circuits have created a general exception to the Heck doctrine for Fourth Amendment unreasonable-search claims brought against state officials pursuant to § 1983, but that the Sixth Circuit employs a case-by-case approach). In order for Swiecicki to prevail on his § 1983 excessive-force claim as he has alleged it, he must prove that Delgado employed excessive force without provocation. Success on his § 1983 claim prior to the invalidation of his conviction by the Ohio Court of Appeals, therefore, would have necessarily implied the invalidity of his conviction for resisting arrest. See White, 1999 WL 775914, at *1; Fraley, 324 N.E.2d at 740. If Swiecicki had brought his excessive-force claim before such reversal, the district court would have had to dismiss it as Heck-barred. See Heck, 512 U.S. at 487 n. 6, 114 S.Ct. 2364 ("In order to prevail in this § 1983 action, he would have had to negate an element of the offense of which he has been convicted. . . . [T]he § 1983 action will not lie."). We therefore hold that the statute of limitations for Swiecicki's excessive-force claim did not begin to run until the Ohio Court of Appeals overturned his conviction.

We recognize, as Judge Sutton points out in his concurrence on this issue, that some excessive-force claims would not necessarily imply the invalidity of a conviction for resisting arrest. On these particular facts, however, that is not the case. The specific language of the Cleveland resisting-arrest ordinance (requiring that the arrest be lawful in order to convict) in combination with the applicable Ohio caselaw (where a finding of excessive force invalidates the lawfulness of an arrest) dictates the result here. Swiecicki's success on his excessive-force claim would therefore necessarily imply the invalidity of his Ohio state-court conviction for resisting arrest. Thus, the statute of limitations did not begin to run until Swiecicki's state-court conviction was overturned.

The district court also held that Delgado was not acting under color of state law until he actually placed Swiecicki under arrest. Swiecicki, on the other hand, argues that Delgado was acting under color of state law during the entire incident, and that the district court erroneously relied on disputed material facts in making its decision.

"To state a claim under § 1983, the plaintiff . . . must show that the alleged violation was committed by a person acting under color of state law." Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir.2001). Delgado, to be liable under § 1983, must have exercised power made possible "only because [he was] clothed with the authority of state law." Id. at 533 (citations and quotation marks omitted).

Whether a police officer like Delgado was acting under the color of state law poses a difficult question that depends on "the nature of the act performed, not the clothing of the actor or even the status of being on duty . . . ." Id. (citation and quotation marks omitted). Relevant considerations include whether the officer flashed a badge, identified himself as an officer, or arrested (or threatened to arrest) someone. Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir.2005) (holding that an off-duty police officer acted under color of state law when he threatened a citizen with arrest at a local festival).

The parties agree that Delgado was off-duty at the time of the incident, even though he was wearing his police uniform and carrying his official weapons. As indicated by Redding, however, the nature of the act, rather than Delgado's clothing, informs the state-actor analysis. Redding, 241 F.3d at 533. We must therefore consider Delgado's behavior during the course of the incident, making sure to view the facts in the light most favorable to Swiecicki at this stage of the case. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Swiecicki alleges that Delgado used police procedures and was therefore a state actor during the entire incident. According to Swiecicki and several witnesses, Delgado grabbed Swiecicki by the shirt and arm to escort him, and Delgado himself admits that he put Swiecicki in the "escort position" before forcibly removing him from the bleachers. The district court failed to acknowledge Swiecicki's version of the facts, holding that "[a]lthough Officer Delgado may have been acting as a private actor when he began escorting Jeffrey Swiecicki out of the stadium pursuant to the rules and regulations of Jacobs Field, he asserted his official state power when he placed Jeffrey Swiecicki under arrest." Despite this broad pronouncement, the district court never articulated why it concluded that Delgado was not a state actor when he first escorted Swiecicki out of the stands.

Here, we believe the record establishes that Delgado was a state actor from the beginning of the incident in question because he "presented himself as a police officer." Parks, 395 F.3d at 652. Our conclusion is based not only on Delgado's attire, badge, and weapons, but also on the fact that Delgado told Swiecicki that "[w]e can either do this the easy way or the hard way." We recognize that these words, standing alone, would not necessarily rise to the level of a threatened arrest. After all, if a private citizen like Labrie, or a fellow Indians fan, had warned Swiecicki in a similar manner, no threat of arrest would have been present. And if Delgado had simply asked Swiecicki to calm down or risk being ejected from the game, we would be unable to conclude that Delgado acted under color of state law. See Watkins v. Oaklawn Jockey Club, 183 F.2d 440, 443 (8th Cir.1950) (holding that an off-duty deputy sheriff who worked as a security guard at a race track was not acting under color of state law when he ejected a patron because the deputy sheriff acted in the same manner that a civilian employee of the track would have acted).

But we are required to consider all of the relevant circumstances. See Parks, 395 F.3d at 652 ("[A]ll of these factors combined create the presumption of state action."). Rather than calmly asking Swiecicki to leave the stadium, Delgado, while wearing his uniform and carrying his official weapons, threatened Swiecicki and forcibly removed him from the bleachers. This evidence, combined with the fact that Delgado was hired by Jacobs Field to intervene "in cases requiring police action" suggests that his warning to Swiecicki amounted to a threat of arrest. Delgado apparently believed, moreover, that the incident was one requiring "police action" because he approached Swiecicki before Labrie had a chance to further investigate. In sum, this was more than a case in which a civilian employed by the Indians peaceably ejected an unruly fan from a baseball game — a procedure clearly contemplated by the rules and regulations of Jacobs Field. Delgado, in full police uniform, forcibly removed Swiecicki in the escort position.

All of this evidence, when considered together, indicates that Delgado was acting under color of state law at the time he removed Swiecicki from the bleachers. See id. at 652 (holding that the off-duty police officer was a state actor because he was in uniform, identified himself as an officer, and threatened arrest); see also Villegas v. City of Gilroy, 363 F.Supp.2d 1207, 1213 (N.D.Cal.2005) (holding that an off-duty police officer who ejected citizens from a festival held at a public park acted under color of state law because her presence was intended to give "some air of authority as a police officer" and because she had "an active hand assisting in enforcing [the] dress code policy by intimidating Plaintiffs into leaving the festival.") (quotation marks omitted). But see Herrera v. Chisox Corp., No. 93 C 4279, 1995 WL 599065, at *5-6 (N.D.Ill. Oct.6, 1995) (unpublished) (holding that off-duty deputy sheriffs did not act under color of state law when they allegedly arrested Herrera at a Chicago Whitesox game because the deputy sheriffs were not wearing their uniforms, did not carry official weapons, filed a Whitesox incident report rather than an arrest report, and did not accompany officers of the Chicago Police Department who took Herrera to the police station).

Delgado's status as a state actor continued as he escorted Swiecicki through the tunnel. After removing Swiecicki from the bleachers, Delgado formally placed Swiecicki under arrest, wrestled him to the ground using the arm-bar technique, and attempted to handcuff him. Such actions were clearly carried out "with the authority of state law." Redding, 241 F.3d at 533. We therefore hold that Delgado was a state actor for the duration of the incident. See Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980) (holding that the question of whether someone acted under the color of state law may be determined as a matter of law unless there remain unanswered questions of fact for the jury to decide).

We will "review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law." McCloud v. Testa, 97 F.3d 1536, 1541 (6th Cir.1996). But "to the extent that there is disagreement about the facts, . . . we must review the evidence in the light most favorable to the Plaintiff[], taking all inferences in [his]favor." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004).

In determining whether a law enforcement officer is shielded from civil liability due to qualified immunity, this court typically employs a two-step analysis: "(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established." Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (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 n. 2 ("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].") (citations omitted). 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 n. 2. If, on the other hand, the case at issue "is one of the many cases where, if the right is clearly established, the conduct at issue would also be objectively unreasonable," then this court has "collapse[d] the second and third prongs" in an effort to "avoid duplicative analysis." Caudill v. Hollan, 431 F.3d 900, 911 n. 10 (6th Cir.2005).

Throughout the analysis, the burden is on Swiecicki to show that Delgado is not entitled to qualified immunity. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006) ("Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity."). The district court in the present case utilized the typical two-step analysis and assumed that Swiecicki's constitutional rights were violated, but concluded that Delgado was nevertheless entitled to qualified immunity. On appeal, Swiecicki claims that Delgado (1) did not have probable cause to make the arrest, and (2) violated his clearly established First Amendment rights by arresting Swiecicki based on the content of his speech.

In order for the arrest to survive constitutional scrutiny, Delgado must have had probable cause to believe that Swiecicki committed the offenses charged. See Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (holding that the defendant officers were entitled to qualified immunity "if a reasonable officer could have believed that probable cause existed" to make the arrest). In determining whether Delgado had probable cause to arrest Swiecicki for disorderly conduct, we must decide whether, "at that moment [of the arrest], the facts and circumstances within [his] knowledge and of which [he] had reasonably trusty information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

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. See St. John v. Hickey, 411 F.3d 762, 770 (6th Cir.2005) (holding that genuine issues of material fact precluded summary judgment on qualified immunity grounds). An officer may not base his probable-cause determination on speech protected by the First Amendment. See Sandul v. Larion, 119 F.3d 1250, 1256 (6th Cir.1997). But to the extent that probable cause existed for either<