A man who called a cop a “fat slob” and consequently was arrested for disorderly conduct can move ahead with a retaliatory arrest claim against the officer.

The U.S. Court of Appeals for the 6th Circuit ruled on March 24 that Kenneth Kennedy could proceed with his lawsuit against Villa Hills, Ky., police officer Joseph Schutzman, who arrested Kennedy after the two got into an argument at the Villa Hills municipal building. The city of Villa Hills’ disorderly conduct charges against Kennedy were thrown out in 2007.

In affirming a lower court, the appeals court denied summary judgment to Schutzman and determined that Kennedy had a viable argument that the officer was not entitled to qualified immunity because he arrested Kennedy in retaliation for exercising his free speech rights. The city was previously dismissed from the case.

Kennedy was involved in a zoning dispute with the city over the pending construction of a strip mall next to his home, according to the appeals court decision. In 2005, when bulldozers and construction workers arrived on the site to begin construction of the mall, he went to the Villa Hills city building to speak with Schutzman, who also was a building inspector and had approved the project. Schutzman refused to speak to Kennedy and left the building. Kennedy then loudly declared to nearby city workers in the building that “that son of a bitch broke all of the zoning laws.”

At that point, Schutzman ran back into the building and twice asked Kennedy what he had said. Kennedy responded by calling Schutzman a “fat slob.” Schutzman then arrested Kennedy. The events took place before the building had opened for business.

After the criminal case against Kennedy was dismissed, Kennedy sued the city, Schultzman and other defendants for wrongful and retaliatory arrest. The appeals court found that it was reasonable to conclude that Kennedy’s outbursts did not provide probable cause for his arrest and that, therefore, awarding summary judgment to the officer was in error.

The court also found that Kennedy demonstrated at this stage in the case that the First Amendment protected his conduct and that the officer could not claim qualified immunity against a lawsuit. The appeals panel remanded the case to the district court.

Representing Kennedy was Charles Schaffner, a Covington, Ky., attorney.

Representing Schutzman was Jeffrey Mando of Adams, Stepner, Woltermann & Dusing in Covington, Ky.

“I’m puzzled here why the 6th Circuit wouldn’t find that [Schutzman] was entitled to qualified immunity,” Mando said. “It is designed to protect an officer who made a mistake.”
Leigh Jones can be contacted at ljones@alm.com .