Anthony Sevy v. Philip Barach

The Sixth Circuit reversed the district court’s denial of qualified immunity to Respondent Barach on the basis that Petitioner’s right to be free from the use of retaliatory force by a security officer was not clearly established. Petitioner claimed that the Respondent retaliated against Petitioner with the use of force in response to Petitioner’s symbolic protest of the 17.5% service fee charged by the 44th District Court in Royal Oak, Michigan. Thus, summary judgment was granted to Respondent on the claim of First Amendment Retaliation notwithstanding that: (1) Respondent violated Petitioner’s constitutional rights, and (2) Petitioner’s right was clearly established at the time of the violation. Three questions are presented:

1. Does the First Amendment, which prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, apply when a government official uses physical force against an individual in response to that individual’s protected act of symbolic protest?

2. Does Graham v. Connor, which held that all excessive force claims against law enforcement officers should be analyzed under the Fourth Amendment and its reasonableness standard, preclude First Amendment retaliation claims that involve retaliatory force by a court security officer?

3. Does an individual have a recognized right to protest, verbally and symbolically, the acts of government officials such that a reasonable officer would know not to use force against an individual in retaliation for the exercise of that speech?