(CN) - A Kentucky man who was arrested for yelling "fat slob" at a cop can take his wrongful arrest claims to trial, the 6th Circuit affirmed. The cop, who is also a city building inspector, had approved a strip mall expansion over the man's protest.
"Police officers must be more thick skinned than the ordinary citizen," the Cincinnati-based federal appeals panel said, quoting a 2003 ruling, Payne v.
Pauley, from the 7th Circuit.
Before lashing out at the Villa Hills building inspector, Kenneth Kennedy had repeatedly voiced his concern about the city's decision to approve the expansion of a strip mall near his home. In addition to complaining about the project over the phone to the building inspector, Kennedy had sued the city and the strip mall's owner, who also sold Kennedy his home.
When bulldozers and construction workers arrived near Kennedy's house on May 18, 2005, he went to the city building to air his grievance in person.
Kennedy says he confronted Joseph Schutzman outside his office at 7 a.m., saying, "Take your pick, the building [permit] is void or obsolete."
Schutzman, who is both a cop and the city building inspector, allegedly told Kennedy that pending litigation prevented him for discussing the issue and left the building.
Kennedy says Schutzman ran back inside the building after he overheard Kennedy complain about him to nearby city workers.
"That son of a bitch broke all of the zoning laws," Kennedy had said.
Schutzman arrested Kennedy for disorderly conduct when he asked the resident what he had said, and Kennedy remarked: "You're a fat slob."
After the charges against Kennedy were dropped, Kennedy sued Schutzman and several other defendants. A federal judge in Covington dismissed the charges against each of the defendants, except Schutzman.
The cop appealed, claiming that he deserved immunity, but the federal appeals panel in Cincinnati affirmed the lower court's decision on Thursday.
A three-judge panel rejected Schutzman's claim that he was entitled to arrest Kennedy because the outburst was loud enough to generate public alarm.
Since the city building was not even for open for business when Kennedy made the remarks, the risk of public disturbance was minimal.
"Even if he did yell and speak rather loudly, the volume of his voice might not have been unreasonable," Judge Karen Moore wrote for the court. "Finally, ... Kentucky law does not criminalize arguments and noise that disturb only police officers because such conduct does not risk public
alarm." (Emphasis in original.)
"Regardless of why Schutzman made the arrest, the relevant inquiry is whether an officer with no ill will toward Kennedy could have believed that he had probable cause to arrest Kennedy," she continued. "We answer no, rendering qualified immunity inappropriate on the claim of wrongful arrest."
It is well established that Kennedy had a right to be free from arrest after insulting a police officer, the court found.
Schutzman must show he had a basis for the arrest other than retaliation to justify his conduct, according to the ruling.
Since Kennedy testified in deposition that the officer seemed very upset before making the arrest, there is enough evidence to suggest that he was emotionally motivated.
"Kennedy's deposition reveals more than his own anger," Moore wrote. "Schutzman 'came running back in' to the building, 'got in [Kennedy's] face,' and arrested Kennedy immediately after Kennedy called Schutzman a 'fat slob.'"