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From the decision taken by Justice F. Kay Beam (ED Mich.) earlier this month Rideout vs. Shelby Twp.:

This case arose out of Rideout’s arrest following a series of protests against Shelby Township Police Chief Robert Shield, who is charged here. On June 16, 2020, Chief Shelaid was suspended for thirty days after he made several posts on his Twitter account using a pseudonym that supported racist ideals and endorsed police brutality. On July 1, 2020, July 15, 2020, and July 20, 2020, Rideout participated in the anti-Shilide protests. On the evening of July 20, 2020, local media interviewed Redout, who criticized Shilaid’s return from suspension and called for his resignation.

According to Sack [Second Amended Complaint]In response to Rideout’s criticism, the named defendants worked together to retaliate against him for exercising his First Amendment constitutional rights. Rideout alleges that Shelide and the police officer’s accusers colluded to conduct a pretext investigation into his activities on July 20, 2020 to frame a misdemeanor charge of violating Mich’s company. Statutes § 257.602 (failure to comply with the order or direction of a police officer) and providing false or misleading facts to the prosecutor’s office. No other protester was arrested for participating in the July 20, 2020 protests and demonstrations.

SAC claims that the police report submitted by accused Ermir Vela, which served as the basis for the arrest warrant, was untruthful and did not contain exculpatory evidence. SAC also alleges that Vela, the co-defendant officers, and Schild were all aware at the time of obtaining the arrest warrant that Rideout sought to cooperate with the officers at the protest, requested more time to disperse the crowd, and the officer was on the scene. Earth agreed to this request. Despite this knowledge, the defendants colluded to omit this information from the presentation of evidence to the prosecutor and the judge who issued the arrest warrant.

In 2021, Rideout filed a motion to dismiss the charges based on lack of probable cause and insufficient evidence. After an evidentiary hearing, a state court judge dismissed the charges, ruling:

A) “I would like to point out as an aside, that I thought it was somewhat unusual – somewhat unusual for a defendant to be charged (“walked out”) after the fact and arrested several days later rather than on “The alleged incident, which would normally be the case, and that would have been the case in some of these other matters.”

b) “As I indicated, I spent a lot of time watching the videos. The video shows – several times where the defendant, Mr Rideout, discussed the issues with the police officers involved. It appears that he was trying to control the crowd, control the participants. At some point, he ran 6 of them off the road, and it appears he was – at certain times assisting police officers. “I saw that it was, in fact, one of the police officers thanked her for the help.”

c) “I did not feel that there was sufficient evidence in the circumstances to support the charge and go to trial on this matter.”

d) The case was dismissed.

The court allowed the plaintiff’s First Amendment claim to proceed:

Although probable cause will generally defeat a 1983 First Amendment retaliation claim, there are two exceptions where, as here, the defendant officers are being sued in their official capacity. To apply the first exception, the Supreme Court held that (1) there must be a “formal municipal policy of intimidation”; (2) the municipality must have “developed a premeditated plan” to retaliate against the plaintiff; (3) The plaintiff must provide “objective evidence of a retaliation-driven policy”; (4) there must be a “minimal connection” between the protected expression and the crime that led to the arrest; and (5) the protected speech must be “high in the hierarchy of First Amendment values,” such as the freedom to petition. Lozman v. City of Riviera Beach (2018). The second exception applies when “the plaintiff presents objective evidence that he was arrested when there were no similarly situated individuals who did not engage in the same type of protected speech,” the existence of probable cause will not preclude a First Amendment retaliation claim. Nevis v. Bartlett (2019).

Rideout’s SAC claims he was the only protester at the July 20, 2020 protest to be arrested, despite the fact that many protesters participated in the same actions he did. SAC also alleges that Defendant’s investigation into him was initiated as a pretext to carry out their plan to retaliate and intimidate him for exercising his First Amendment rights to protest Shelide. This indicates that Rideout’s claim for retaliation falls within the exception described in Lozman The proposal to dismiss the First Count was rejected for this reason. Furthermore, as discussed below, SAC sufficiently alleged lack of probable cause such that the claim also stands on that basis.

The Court ruled the same thing regarding the Fourth Amendment claim:

[This claim] It relies only on the Fourth Amendment, not the First Amendment, and therefore, the above exceptions do not apply. False arrest and false imprisonment claims fail when there is probable cause to support the arrest.

Rideout alleges that the defendants “omitted important and well-known details of the protest, including that Plaintiff sought to cooperate with officers at the scene, directed protesters off the street himself on behalf of the police, and, most importantly, obtained permission from officers at the scene.” the incident”. “More time to disperse protesters from the street.” Rideout points out that a prima facie valid arrest warrant is not always sufficient to merit summary judgment or disposition in a Section 1983 action when there is evidence that the defendant intentionally misrepresented or intentionally omitted information at a probable cause hearing. An arrest or search warrant provided that misleading or omitted information is critical to finding probable cause. [Rideout] He asserts that defendant Vela left “exculpatory evidence” from his police report when filing the arrest warrant application, namely that Rideout sought to cooperate and an officer gave him more time to disperse the crowd and that defendants were aware of this. The defendants assert that the court should dismiss Rideout’s claim because video of the protest shows that he did not obey police orders and, therefore, there is probable cause to support the arrest warrant.

A police officer has probable cause to arrest a suspect if “the facts and circumstances known to the officer are sufficient to justify a reasonable person, or a reasonably prudent person, in believing, in the circumstances shown, that the suspect has committed, or is about to commit, a crime.” “In general, probable cause exists when police have “reasonably trustworthy information.” sufficient to justify a reasonable man’s belief that the petitioner had committed or was committing a crime.” Furthermore, the officer must “consider the totality of the circumstances,” and cannot look solely at the evidence of guilt while ignoring all evidence of innocence in evaluating probable cause. “In general “The existence of probable cause in an action under Section 1983 raises a question for the jury, unless there is only one reasonable decision possible.”

Even considering the evidence adduced by the defendants (which in the eyes of the court was not inconsistent with… [Plaintiff’s] allegations.) Neither party offered any type of analysis as to probable cause and whether the evidence was that “Plaintiff sought to cooperate with officers at the scene, directed protesters to get off the street himself on behalf of the police, and, most importantly, obtained “The permission of officers on the scene for a longer period to disperse protesters from the street” would change the probable cause analysis. In the circumstances, the evidence is viewed in the light most appropriate to the riding, provided the video is not inconsistent [Rideout’s claims]the court cannot say that there is only one possible reasonable determination regarding probable cause, and thus the complaint has sufficiently alleged the absence of probable cause.

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