E. Stephen Dean v. Thomas K. Byerley

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0008P (6th Cir.)
File Name: 04a0008p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
E. STEPHEN DEAN,
Plaintiff-Appellant,
v.
THOMAS K. BYERLEY,
Defendant-Appellee.
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No. 02-1421
Appeal from the United States District Court
for the Western District of Michigan at Lansing.
No. 01-00040—Gordon J. Quist, District Judge.
Argued: August 1, 2003
Decided and Filed: January 8, 2004
Before: DAUGHTREY, MOORE, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Victoria V. Kremski, STATE BAR OF
MICHIGAN, Lansing, Michigan, for Appellee. E. Stephen
Dean, Piedmont, Missouri, pro se. ON BRIEF: Victoria V.
Kremski, STATE BAR OF MICHIGAN, Lansing, Michigan,
for Appellee. E. Stephen Dean, Piedmont, Missouri, pro se.
2 Dean v. Byerley No. 02-1421
MOORE, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. SUTTON, J. (pp. 29-45),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This appeal
raises an important question concerning the scope of an
individual’s right to engage in targeted residential picketing
in the wake of the Supreme Court’s decision in Frisby v.
Schultz, 487 U.S. 474 (1988). We conclude that Frisby did
not place in question an individual’s clearly established right
to engage in peaceful targeted residential picketing; rather it
carved out an exception to this right, allowing the government
to prohibit such picketing through a narrowly tailored and
applicable time, place, or manner regulation.
Plaintiff-Appellant, E. Stephen Dean (“Dean”), appeals the
district court’s order granting summary judgment to
Defendant-Appellee, Thomas K. Byerley (“Byerley”), the
Regulation Counsel and Director of Professional Standards
Division for the State Bar of Michigan. Dean filed this action
under 42 U.S.C. § 1983, alleging that Byerley violated Dean’s
First Amendment rights during a confrontation that occurred
while Dean was picketing in front of Byerley’s residence.
Dean also brought state-law claims of assault and libel and
asked the district court to exercise supplemental jurisdiction
over these claims under 28 U.S.C. § 1367(a). The district
court granted Byerley’s motion for summary judgment on the
federal claim, holding that Dean failed to establish that
Byerley acted under color of state law. The district court also
dismissed the state-law claims pursuant to 28 U.S.C.
§ 1367(c)(3).
Contrary to the district court, we conclude that Dean
created a genuine issue of material fact as to whether Byerley

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No. 02-1421 Dean v. Byerley 3
acted under color of state law. We further hold that Dean had
a constitutionally protected right to engage in targeted
picketing on the street in front of Byerley’s residence. As
result, we also reach the issue of whether Byerley is entitled
to an immunity defense. For the following reasons, we
REVERSE the district court’s grant of summary judgment
and REMAND for further proceedings consistent with this
opinion.
I. BACKGROUND
After graduating from the Thomas Cooley School of Law
at age 60, Dean submitted his application for admission to the
State Bar of Michigan in December 2000. When Dean
delivered his application to the Executive Director of the State
Bar of Michigan, Dean expressed concern that it was
incomplete and explained that he was unable to recall the
addresses of all of his prior residences. Dean alleges that
subsequently State Bar of Michigan employees repeatedly
requested additional information and refused to accept his
explanation that he had done his best to obtain the required
information, but that he could not remember the addresses of
residences he had lived in over twenty-five years ago. After
this interaction with the State Bar of Michigan employees, but
before the Bar made a decision regarding Dean’s bar
application and before Dean took the bar exam, Dean began
picketing to publicize the treatment he received from the State
Bar of Michigan employees. Initially, Dean and two
individuals hired by Dean picketed the State Bar of Michigan
building. Then, on March 27, 2001, Dean and the hired
individuals extended their picketing to Byerley’s residence.
On the morning of March 27, 2001, Dean and the hired
individuals picketed near Byerley’s residence. Dean alleges
that he and the hired individuals only picketed on the street in
front of Byerley’s residence. Byerley, on the other hand,
alleges that Dean and the hired individuals also picketed on
Byerley’s private property. The parties agree, however, that
on the morning of March 27, 2001, Dean and the hired
4 Dean v. Byerley No. 02-1421
individuals did not picket in front of any other residence in
the neighborhood.
Dean further alleges that while he and the hired individuals
were picketing near Byerley’s residence, a confrontation
occurred between Byerley and the picketers. Dean alleges
that during the confrontation, Byerley told Dean “that because
of his picketing the State Bar of Michigan and his home
[Dean] would never be allowed to practice law in the state of
Michigan. [Byerley] then stated that he was going to have
[Dean] arrested for picketing.” Second Am. Compl., Aug. 23,
2001, ¶¶ 13, 14. Dean also alleges that Byerley twice
“intentionally drove his automobile directly towards [Dean].”
Id. ¶ 11, 18. After the confrontation, Dean and the hired
individuals left the area. Since the confrontation, Dean has
not picketed near Byerley’s residence or the State Bar of
Michigan building.
Two days after the incident, on March 29, 2001, Byerley
sent Dean a letter pertaining to the confrontation. This letter
was written on State Bar of Michigan letterhead. In its
entirety, the letter reads:
As you know, you and two other individuals were
outside of my private residence on Tuesday, March 27,
2001 carrying signs. Although you have a right to
exercise your First Amendment rights on public property,
you do not have that right on private property.
On March 27 I verbally told you that you were on
private property and that if you did not immediately
leave I would call the police. This letter memorializes
that statement. You are put on formal notice that you are
never welcome on my private property and that if you
trespass again I will ask that you be arrested.
Similarly, you are notified that you are not to enter the
private property of any other State Bar of Michigan
employee or officer.

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No. 02-1421 Dean v. Byerley 5
I fully expect that you will not repeat your trespass.
Def.’s Br. in Supp. of Mot. for Summ. J., Ex. E.
On April 4, 2001, Dean commenced a pro se action against
Byerley in the United States District Court for the Western
District of Michigan. In this action, Dean brought a § 1983
claim, alleging that Byerley violated his First Amendment
rights by threatening that Dean would never practice law in
Michigan due to his picketing. Dean also brought two state-
law assault claims, alleging that Byerley committed assaults
by twice driving his car at Dean, and a state-law libel claim,
alleging that Byerley committed libel by sending to third
parties copies of his letter to Dean, in which he stated that
Dean had trespassed. In his complaint, Dean requested
approximately $2 million in compensatory and punitive
damages and “equitable relief in the form of an order from
[the district court] that Defendant refrain from interfering
with Plaintiff’s rights of free speech by threats of bodily harm
or by threat of arrest.” Second Am. Compl., Aug. 23, 2001,
¶ 45.
In August 2001, Byerley filed a motion for summary
judgment. A magistrate judge concluded that summary
judgment was proper based upon his determination that Dean
did not have a constitutionally protected right to engage in
targeted residential picketing. The magistrate judge
recommended that the district court grant summary judgment
to Byerley on Dean’s § 1983 claim, and dismiss Dean’s state-
law claims pursuant to 28 U.S.C. § 1367(c)(3). The district
court granted Byerley’s motion for summary judgment, based
instead upon its determination that Byerley did not act under
color of state law when he allegedly threatened that Dean
would not become a member of the State Bar of Michigan due
to his picketing. In making this determination, the district
court noted that Byerley was exercising the same authority
possessed by private individuals to have an individual
arrested for trespassing and to report an applicant’s conduct
to the State Bar of Michigan. The district court also
6 Dean v. Byerley No. 02-1421
dismissed Dean’s state-law claims pursuant to 28 U.S.C.
§ 1367(c)(3).
II. ANALYSIS
A. Standard of Review
This court reviews de novo the district court’s grant of
summary judgment. Waters v. City of Morristown, 242 F.3d
353, 358 (6th Cir. 2001). Summary judgment is proper when
“there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). In ruling on a motion for summary
judgment, the court must view the evidence and draw all
reasonable inferences in favor of the nonmoving party.
Waters, 242 F.3d at 358 (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Additionally, the judge must not weigh the evidence but
rather must “determine whether there is a genuine issue for
trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)) (internal quotation marks omitted). There
is a genuine issue for trial if there is sufficient “evidence on
which the jury could reasonably find for the plaintiff.” Id.
(quoting Anderson, 477 U.S. at 252) (internal quotation marks
omitted).
B. Section 1983 Claim
1. First Amendment
Dean filed this action under 42 U.S.C. § 1983, claiming
that Byerley violated Dean’s constitutionally protected right
to engage in free speech. “To prevail on a § 1983 claim, a
plaintiff must establish that a person acting under color of
state law deprived the plaintiff of a right secured by the
Constitution or laws of the United States.” Id. at 358-59.
Thus, to prevail on his § 1983 claim, Dean must prove that
Byerley violated Dean’s constitutionally protected right to

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No. 02-1421 Dean v. Byerley 7
1Section 423 .9f was not part of the original Act, but was added as
1947 Mich. Pub. Acts. 318 and became effective October 11, 1947.
engage in free speech and that Byerley acted under color of
state law.
The parties dispute whether Dean had a constitutionally
protected right to engage in targeted picketing on the street in
front of Byerley’s residence. The district court did not reach
this issue and instead granted Byerley’s motion for summary
judgment based upon its finding that Byerley did not act
under color of state law. On appeal, Dean argues that, in the
absence of an applicable time, place, or manner restriction,
Dean had a constitutionally protected right to engage in
targeted residential picketing. See Appellant’s Br. at 16.
Byerley counters that Dean did not have a constitutionally
protected right to engage in targeted residential picketing,
regardless of whether there is an applicable time, place, or
manner restriction. See Appellee’s Br. at 18-20.
We agree with the parties that there is no applicable
Michigan statute that bans all targeted residential picketing.
It is true that § 423.9f of the Michigan Code provides that
“[i]t shall be unlawful . . . to engage in picketing a private
residence by any means or methods whatever: Provided, That
picketing, to the extent that the same is authorized under
constitutional provisions, shall in no manner be prohibited.”
Mich. Comp. Laws § 423.9f. We conclude, however, that this
provision is not applicable to the instant case. This statutory
section appears in a chapter of the Michigan Code regulating
labor and employment as part of the Employment Relations
Commission Act 176 of 1939 (“Act”).1 Id. No Michigan
court has issued a reported decision addressing the scope of
the ban on private picketing contained in § 423.9f, so we must
interpret this statutory section in order to determine whether
it is applicable to this case.
8 Dean v. Byerley No. 02-1421
2In fact, the Michigan Supreme Court has stated that the preamb le
may be considered when interpreting the scope and purp ose of a statute.
Ma lcolm v. City of East Detroit, 468 N.W .2d 4 79, 484 (Mich. 19 91), cited
with app rova l in King v. Ford Motor Credit Co., 668 N.W.2d 357, 362-63
(Mich. Ct. App. 200 3).
When construing a statute, we must look at the whole law
and effectuate the legislature’s intent. Richards v. United
States, 369 U.S. 1, 11 (1962). As the Supreme Court has
instructed, “We believe it fundamental that a section of a
statute should not be read in isolation from the context of the
whole Act. . . . ‘[W]e must not be guided by a single sentence
or member of a sentence, but [should] look to the provisions
of the whole law, and to its object and policy.’”2 See id.
(citations omitted); see also Owasso Indep. Sch. Dist. v.
Falvo, 534 U.S. 426, 434 (2002). Therefore, the ban on
private residential picketing contained in § 423.9f must be
read in conjunction with the rest of the statutory section in
which it appears, and the Act as a whole. The Supreme Court
has stated that “the meaning of statutory language, plain or
not, depends on context.” Holloway v. United States, 526
U.S. 1, 7 (1999) (internal quotation marks omitted); see also
Textron Lycoming Reciprocating Engine Div., Avco Corp. v.
UAW, 523 U.S. 653, 657 (1998). Reading the Act in its
entirety reveals that the ban on private residential picketing
applies only to labor picketing. The preamble declares that
the Act regulates the behavior of employees and employers
engaged in labor disputes. Mich. Comp. Laws § 423 pmbl.
The preamble states that the Act is
AN ACT to create a commission relative to labor
disputes, and to prescribe its powers and duties; to
provide for the mediation and arbitration of labor
disputes, and the holding of elections thereon; to regulate
the conduct of parties to labor disputes and to require the
parties to follow certain procedures; to regulate and limit
the right to strike and picket; to protect the rights and
privileges of employees, including the right to organize

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No. 02-1421 Dean v. Byerley 9
and engage in lawful concerted activities; to protect the
rights and privileges of employers; to make certain acts
unlawful; and to prescribe means of enforcement and
penalties for violations of this act.
See id. Additionally, the other sections of the Act govern
employment relations by creating an employment relations
commission, prescribing rules for collective bargaining and
labor disputes, and defining unfair labor practices. See
generally id. § 423. Finally, the other clauses of § 423.9f
make it clear that the statutory section applies only to labor
picketing. Section 423.9f provides:
It shall be unlawful (1) for any person or persons to
hinder or prevent by mass picketing, unlawful threats or
force the pursuit of any lawful work or employment,
(2) to obstruct or interfere with entrance to or egress from
any place of employment, (3) to obstruct or interfere with
free and uninterrupted use of public roads, streets,
highways, railways, airports, or other ways of travel or
conveyance, or (4) to engage in picketing a private
residence by any means or methods whatever: Provided,
That picketing, to the extent that the same is authorized
under constitutional provisions, shall in no manner be
prohibited. Violation of this section shall be a
misdemeanor and punishable as such.
Id. (emphases added). The title of the Act, the preamble, the
other sections of the Act, and the surrounding clauses in the
particular statutory section under consideration all clearly
indicate that § 423.9f applies only to only labor picketing and
not to all private residential picketing.
The dissent contends that if § 423.9f is read as applicable
only to labor picketing, then the statute is unconstitutional, as
it would amount to a content-based prohibition of speech, in
10 Dean v. Byerley No. 02-1421
3The dissent states that “the M ichigan Legislature sure ly could have
taken the view that a statute that proscribes all residential picketing on all
topics of speech was not only fair — because it would avoid favoring one
subject of speech over another — but it was the only choice ava ilable .”
Dissenting Op. at 41 (emph asis added). The dissent reasons that under
Carey v. Brown, 447 U.S. 455 (1980), and Frisby v. Schultz, 487 U.S. 474
(1988), a law that bans o nly reside ntial labo r picke ting wou ld be
unco nstitutional. Carey and Frisby, however, were decided more than
thirty years after § 423.9f was enacted.
4In fact, the Michigan S upreme Court has stated that “[b]ecause
courts are wary of creating crim es, penal statutes are to be strictly
construed.” People v. Gilbert, 324 N.W .2d 834, 843 (Mich. 1982 ).
The dissent characterizes his effort to read § 423.9f broadly as a
refusal to accept a narrowing interpretation of the this provision.
Dissenting Op. at 42. As our analysis makes clear, § 423.9 only applies
to labor picke ting. M oreo ver, no ne of the cases cited b y the dissent
support his effort to read § 423.9f in a manner that would criminalize
more conduct than is actually prohibited by the statute.
In Frisby v. Schultz, 485 U.S. 474, 481-82 (1988), the Supreme Co urt
accepted the district court’s construction of the antipicketing ordinance at
issue as not including an implied exception for labor picketing. The
ordinance banned all residential picketing, without exception. Schultz v.
Frisby, 619 F. Supp . 792, 794 (E.D . Wis. 1985). An earlier version of the
ordinance did in fact contain an exception for labor picketing, as an
attempt to comply with a Wisconsin statute that specifies picketing is a
perm issible labor activity. The city, however, repealed the earlier version
of the ordinance–containing the exception for labor picketing–due to
concerns that the ordinance violated the First Amendment by
violation of the First and Fourteenth Amendments.3
Dissenting Op. at 41-42. Therefore, the dissent proposes that
we read the statute broadly, as applicable to all targeted
residential picketing. Id. We decline to interpret § 423.9f in
the manner recommended by the dissent. While federal
courts often narrowly construe statutes in order to avoid
striking them down on their face, we may not broadly
construe a state statute in order to prevent the same result. It
would be tantamount to judicial legislation and would raise
serious federalism concerns if we, a federal court, were to
broadly construe § 423.9f to criminalize conduct that the
Michigan Legislature did not make criminal.4

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No. 02-1421 Dean v. Byerley 11
discriminating against sp eech based upon its co ntent. Schultz v. Frisby,
807 F.2d 1339, 1342 (7th Cir. 1986). The district court rejected the
plaintiffs’ argument that the newer version of the ordinance m ust contain
an implied exception for labor picketing in order to comply with the
W isconsin statute. Sch ultz, 619 F. Supp. at 79 6. The district court
pointed out that the legislative history clearly indicated that the ordinance
did not co ntain such an exception. Id. The Supreme Court’s acceptance
of this refusal to imply an exception to the antipicketing ordinance did not
increase the scope of conduct prohibited by the ordinance, for the
ordinance already banned all targeted residential picketing.
In Boo s v. Barry, 485 U.S. 312, 332-34 (1988), the Supreme Co urt
held that two provisions of the District of Columbia Code d id not combine
to create an Equal Protection Clause violation. Section 22-1115 limited
individuals’ right to congregate within 500 feet of an emba ssy regardless
of the message they sought to convey, and § 22-1116 stated that § 22-
1115 did no t prohibit labo r picke ting. Id. at 333 -34. The Supreme Court
accepted a narrowing construction of § 22-1115 as only prohibiting
“congregations that threaten the security or peace of an embassy.” Id. at
333. Therefore, the Supreme Court construed § 22-1115 as prohibiting
individuals from engaging in violent congregations within 500 feet of an
emb assy, regardless of the message they sought to convey, and allowing
all peaceful congregations. The Supreme Court then determined that
§ 22-11 16 does not protect violent labor congregations; therefore, the
statutes did not treat labor and nonlabor picketing differently. Id. The
Supreme Court’s refusal to read the labor picketing exception contained
in § 22 -1116 broadly so as to authorize violent labor picketing did not
increase the scope of conduct prohibited by the ordinance, for § 22-1115
already banned all violent congregations.
Finally, in United States v. Seeger, 380 U.S. 163, 165-66 (19 65), the
Supreme Court broadened the conscientious-objector exception contained
in the Universal Military Training and Service Act. Interpreting the Act
in this manner actually lessened the range of co nduc t deem ed criminal,
rather than increased it.
The dissent cites these cases as supp ort for his effort to read § 423.9f
broadly, in a manner that would criminalize more cond uct than is actually
prohibited by the statute. The Suprem e Co urt, however, has expressly
held that retroactive application o f judicially expanded criminal statutes
violates due p rocess. Bouie v. City of Colum bia, 378 U.S. 347, 352-54
(1964); see also R ogers v. Te nnessee, 532 U.S. 451, 45 6-460 (200 1).
Nothing in the cases cited by the dissent indicates that the Supreme Court
has retreated from this position. Dean is not being prosecuted for
violating § 423 .9f; therefore, this case does not implicate the due process
concerns present in Bouie and Rog ers. Nevertheless, Bouie and Rog ers
strongly counsel against instituting a practice of broadly interpreting
12 Dean v. Byerley No. 02-1421
criminal statutes so as to avoid constitutional infirmity.
Furthermore, because § 423.9f is not applicable to the instant
case, it would be overreaching for us to comment on its
constitutionality at this time.
Dean was not engaged in labor picketing when the
confrontation at issue occurred; therefore, § 423.9f does not
apply to Dean’s conduct. The dissent asserts that Dean was
engaged in labor picketing because he “was picketing about
a matter related to labor and employment.” Dissenting Op. at
38. Dean picketed to protest the treatment that he received
from the State Bar of Michigan employees. That Dean’s
ability to obtain a law license in Michigan may affect his
future employability does not convert his protest into labor
picketing. The dissent cites no authority for his overly
expansive definition of labor picketing.
Byerley has not identified any other Michigan law that bans
residential picketing. Thus, proper resolution of this dispute
turns on whether there is a constitutionally protected right to
engage in targeted residential picketing in the absence of an
applicable time, place, or manner restriction.
Over sixty years ago, the Supreme Court declared that use
of the streets for assembly and communication is a right held
by U.S. citizens pursuant to the First Amendment. Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939). The
Supreme Court has also declared that “as a general matter
peaceful picketing and leafletting are expressive activities
involving ‘speech’ protected by the First Amendment.”
United States v. Grace, 461 U.S. 171, 176 (1983). Although
the Supreme Court has recognized that the government may
regulate this use of the streets to ensure general comfort and
order, the Court has warned that the government must not use
such regulations to abridge or deny that right. Hague, 307
U.S. at 516. The Supreme Court considers streets and
sidewalks to be public fora for purposes of First Amendment

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No. 02-1421 Dean v. Byerley 13
scrutiny, and the Court has limited the government’s ability
to restrict First Amendment rights in such public fora. Grace,
461 U.S. at 177.
In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme
Court discussed the limits on the government’s ability to
regulate use of streets for assembly and communication. The
Court upheld against a facial challenge an ordinance adopted
by Brookfield, Wisconsin “that completely bans picketing
‘before or about’ any residence.” Id. at 476. The Court
admonished that streets are traditional public fora; therefore,
regulations of assembly and communication on streets must
satisfy the appropriate level of scrutiny. Id. at 481. As the
Court stated,
In these quintessential public for[a], the government may
not prohibit all communicative activity. For the State to
enforce a content-based exclusion it must show that its
regulation is necessary to serve a compelling state
interest and that it is narrowly drawn to achieve that
end. . . . The State may also enforce regulations of the
time, place, and manner of expression which are content-
neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative
channels of communication.
Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983)). The Court adopted a
narrowing construction of the ordinance at issue and
concluded that it only banned targeted picketing directed at a
single residence. Id. at 482-83. The Court then held that the
ordinance, narrowly construed, satisfied the scrutiny
applicable to time, place, and manner regulations. Id. at 487-
88.
Byerley points to passages in Frisby discussing the
government’s interest in protecting the privacy of the home to
support his argument that there is no constitutionally
protected right to engage in targeted residential picketing.
14 Dean v. Byerley No. 02-1421
Appellee’s Br. at 18-20. For example, Byerley quotes the
following passage from Frisby:
The type of focused picketing prohibited by the
Brookfield ordinance is fundamentally different from
more generally directed means of communication that
may not be completely banned in residential areas. In
such cases “the flow of information [is not] into . . .
household[s], but to the public.” Here, in contrast, the
picketing is narrowly directed at the household, not the
public. The type of picketers banned by the Brookfield
ordinance generally do not seek to disseminate a message
to the general public, but to intrude upon the targeted
resident, and to do so in an especially offensive way.
Moreover, even if some such picketers have a broader
communicative purpose, their activity nonetheless
inherently and offensively intrudes on residential
privacy.
Appellee’s Br. at 19 (quoting Frisby, 487 U.S. at 486)
(citations omitted). Byerley acknowledges that Frisby does
not preclude “targeted residential picketing in the absence of
an ordinance or state law prohibiting it,” but nonetheless
asserts that targeted residential picketing is not
constitutionally protected. Appellee’s Br. at 20. In essence,
Byerley argues that if targeted picketing “may be banned
outright under First Amendment precedent, then the activity
is inherently unworthy of constitutional protection.” Id.
Contrary to Byerley’s argument, Supreme Court precedent
makes it clear that citizens have the constitutional right to use
streets for assembly and communication. See Hague, 307
U.S. at 515-16. Although the government may restrict that
right through appropriate regulations, that right remains
unfettered unless and until the government passes such
regulations. See id. at 516. While there are passages in
Frisby that discuss the government’s interest in protecting the
privacy of the home, Frisby does not support the proposition
that the right to residential privacy automatically trumps the

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No. 02-1421 Dean v. Byerley 15
right to engage in targeted residential picketing. See Frisby,
487 U.S. at 486-88. Rather, those passages in Frisby address
one of the requirements for upholding time, place, and
manner regulations, i.e., that the regulations “serve a
significant government interest.” Id. at 481 (quoting Perry,
460 U.S. at 45) (internal quotation marks omitted).
Therefore, we conclude that the First Amendment protects the
right to engage in peaceful targeted residential picketing in
the absence of a narrowly tailored time, place, or manner
regulation that meets the requirements laid down in Frisby.
2. Retaliation Claim
Dean has created a genuine issue of material fact as to
whether Byerley violated Dean’s First Amendment rights
during the March 27, 2001 confrontation. While Dean does
not explicitly label his claim as one of retaliation, his
allegation that Byerley threatened that Dean would never
practice law in the state of Michigan due to his picketing and
his allegation that Byerley threatened to have the picketers
arrested make it clear that Dean is asserting a garden-variety
retaliation claim. This court has held that a § 1983 claim can
be predicated upon a state official’s retaliation against an
individual for exercising his or her First Amendment rights.
Thaddeus-X v. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999)
(en banc). “A retaliation claim essentially entails three
elements: (1) the plaintiff engaged in protected conduct;
(2) an adverse action was taken against the plaintiff that
would deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) there is a causal connection
between elements one and two — that is, the adverse action
was motivated at least in part by the plaintiff’s protected
conduct.” Id. at 394.
When the confrontation occurred, Dean was allegedly
picketing on the street in front of Byerley’s residence, which
is conduct protected by the First Amendment. Dean alleges
that during the confrontation, Byerley threatened that Dean
would never practice law in the state of Michigan due to his
16 Dean v. Byerley No. 02-1421
5The dissent contends that these threats do not constitute sufficient
adverse action because Byerley sent a letter to Dean two days after the
incident, which stated that Byerley only objected to Dean picketing on
Byerley’s private property, and because during a hearing on August 15,
2001, Dean stated that he withdrew his bar application voluntarily and not
due to fear that Byerley would block it. Dissenting Op . at 44-45. T hese
develop ments, which occurred after the March 27, 2001 incident, are not
controlling because at the time Dean cea sed picketing, he could have
reaso nably thought that Byerley would carry out these threats. Mo reover,
the dissent’s assertion that the March 29, 2001 letter removed any fear of
further adverse action is a factual finding that this court should not make
in the first instance. Finally, the second prong of our three-part test for
evaluating retaliation claims requires the plaintiff to allege that “an
adverse action was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct.” Thaddeu s-
X v. Blatter, 175 F.3d 378, 394-95 (6th Cir. 1999) (en banc). This prong
has been satisfied here.
picketing and Byerley threatened that he would have the
picketers arrested.5 A reasonable finder of fact could
conclude that such conduct, if it actually occurred, would
“deter a person of ordinary firmness” from the exercise of the
right at issue. See id. Additionally, a reasonable finder of
fact could conclude that the timing of events demonstrates a
causal connection between Dean’s engaging in protected
conduct and Byerley’s retaliation. Because Michigan has not
passed an applicable time, place, or manner restriction, Dean
had a constitutionally protected right to engage in peaceful
targeted picketing in front of Byerley’s residence. Retaliation
against Dean for exercising that right would violate Dean’s
First Amendment rights. Thus, Dean has presented evidence
supporting the first requirement of his § 1983 claim.
3. Under Color of State Law
To satisfy the second requirement of his § 1983 claim,
Dean must show that Byerley acted under color of state law.
The Supreme Court has held that “[t]he traditional definition
of acting under color of state law requires that the defendant
in a § 1983 action have exercised power ‘possessed by virtue
of state law and made possible only because the wrongdoer is

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No. 02-1421 Dean v. Byerley 17
clothed with the authority of state law.’” West v. Atkins, 487
U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)). The Supreme Court has further held that
“[s]tate employment is generally sufficient to render the
defendant a state actor.” Id. at 49 (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 n.18 (1982)). Thus,
“[i]t is firmly established that a defendant in a § 1983 suit acts
under color of state law when he abuses the position given to
him by the State.” Id. at 49-50 (citing Monroe v. Pape, 365
U.S. 167, 172 (1961)).
The district court granted Byerley’s motion for summary
judgment based upon its finding that Byerley did not act
under color of state law. The district court found that “[i]n
expressing his anger towards [Dean’s] conduct, [Byerley] was
not performing some duty of his office or exercising his
official responsibilities. Rather, [Byerley’s] conduct was that
of a private citizen.” Dist. Ct. Op. at 3. The district court
found that Byerley merely asserted his right to seek to have
Dean arrested for trespassing on private property and his right
to report a complaint to the State Bar of Michigan regarding
Dean’s character and fitness. The district court concluded
that all persons possess these rights, and thus that Byerley did
not need state authority to act as he did.
The Supreme Court has held, however, that a defendant in
a § 1983 action may still act under color of state law even
though a private citizen could have taken the same action as
that taken by the defendant. Griffin v. Maryland, 378 U.S.
130, 135 (1964). More specifically, the Supreme Court has
held that “[i]f an individual is possessed of state authority and
purports to act under that authority, his action is state action.
It is irrelevant that he might have taken the same action had
he acted in a purely private capacity or that the particular
action which he took was not authorized by state law.” Id.
Thus, the fact that Byerley could have made a private report
on Dean’s character or privately sought a trespass action is
not controlling, and it was inappropriate for the district court
to grant summary judgment on that basis. Rather the
18 Dean v. Byerley No. 02-1421
6In his brief in support of his mo tion for summ ary judgment, Byerley
adm its that the State Bar of Michigan is an agency of the Michigan
Supreme Court. Def.’s Br. in Supp. of M ot. for Summ . J. at 12.
Additionally, this court has concluded that the State Bar of Michigan is a
state agency in similar circumstances. Dubuc v. Michigan Bd. of Law
Exam ’rs, 342 F.3d 6 10, 615 (6th Cir. 2003 ) (holding State Bar of
M ichigan is a state agency when it acts “for purposes of promulgating
rules relating to Bar mem bership and determining whethe r to grant or
deny Bar applications”).
controlling issue is whether Byerley possessed state authority
and whether Byerley purported to act under that authority.
See id.
Byerley possessed state authority pursuant to his status as
Regulation Counsel for the State Bar of Michigan.6 Dean has
presented evidence that Byerley purported to act under that
state authority. In his complaint, Dean alleged that during the
March 27, 2001 confrontation, Byerley stated “that because
of [Dean’s] picketing the State Bar of Michigan and
[Byerley’s] home [Dean] would never be allowed to practice
law in the state of Michigan.” Second Am. Compl., Aug. 23,
2003, ¶ 13. Then, on March 29, 2001, Byerley sent a letter on
State Bar of Michigan letterhead, pertaining to the March 27,
2001 confrontation. In that letter, Byerley stated that if Dean
trespassed on Byerley’s property again, Byerley would
request that Dean be arrested. The letter further stated that
Dean was “not to enter the private property of any other State
Bar of Michigan employee or officer.” Def’s Br. in Supp. of
Mot. for Summ. J., Ex. E.
Additionally, Byerley has never explicitly denied Dean’s
allegation that Byerley acted under color of state law. In his
answer, Byerley responded to Dean’s allegation that Byerley
acted under color of state law by admitting “that Plaintiff’s
allegations against Defendant arise from Defendant’s status
as Regulation Counsel for the State Bar of Michigan.”
Answer to First Am. Compl., June 20, 2001, ¶ 6. In neither
Byerley’s motion for summary judgment and his brief in

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No. 02-1421 Dean v. Byerley 19
7Byerley’s only argument on appeal regarding whether he was acting
under co lor of state law is as follows:
II. Was Defendant Acting Under Color of State Law?
Dean is correct that Byerley acknowledged in his answer
that the only reason Dean was at Byerley’s house on the morning
of March 27, 2001 was because of his status as Regulation
Counsel for the State Bar, and that Dean’s allegations arose from
the events of that morning.
Even if Byerley was acting under color of state law, Dean’s
claims would be barred by governm ental immunity.
Appellee’s Br. at 25.
8In his appellate brief, Byerley lumps together his assertions that he
is entitled to Eleventh Amendment immunity, absolute immunity, and
qualified immunity. Because Dean sued Byerley in Byerley’s individual
capacity, Eleventh Amendment immunity does not shield Byerley from
Dean’s damages claims. B yerley’s asse rtions that he is entitled to
abso lute immunity and qualified immunity — which when app licable
protect public officials sued in their individual capacity from damages
claims — will be discussed in more detail in Sections II.C.1 and C.2.
support of that motion nor his two supplemental briefs in
support of that motion does Byerley deny that he was acting
under color of state law. Finally, on appeal, Byerley does not
even argue that he was not acting under color of state law.7
Because Dean presented evidence demonstrating that Byerley
acted under color of state law and because Byerley has never
argued to the contrary, the district court should not have
granted summary judgment based upon its finding that
Byerley did not act under color of state law.
C. Immunity
1. Absolute Immunity
Even if the plaintiff in a § 1983 claim establishes that the
defendant violated his federal rights under color of state law,
the defendant may raise an immunity defense. See Harlow v.
Fitzgerald, 457 U.S. 800, 806-07 (1982).8 The Supreme
Court has recognized two kinds of immunity defenses. Id. at
807; see also Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir.
20 Dean v. Byerley No. 02-1421
9The district co urt held that Dean failed to establish that Byerley
acted under color of state law.
10On page 29 of his appellate brief, Byerley quotes the following
passage from Watts v. Bu rkhart:
The immunity of participants in the judicial process stems not
from the “location” of the jud icial process in one branch of
government or another . . . but from the “characteristics” of the
1998). First, “[f]or officials whose special functions or
constitutional status requires complete protection from suit,
we have recognized the defense of ‘absolute immunity.’”
Harlow, 457 U.S. at 807. For example, the Supreme Court
has recognized the defense of absolute immunity for
legislators performing legislative functions, judges
performing judicial functions, prosecutors performing
prosecutorial functions, and the President of the United States
in his official capacity. Id.; see also Holloway v. Brush, 220
F.3d 767, 774-75 (6th Cir. 2000) (en banc). The defense of
absolute immunity provides a shield from liability for acts
performed erroneously, even if alleged to have been done
maliciously or corruptly. Watts v. Burkhart, 978 F.2d 269,
272 (6th Cir. 1992) (en banc); see also Lomaz, 151 F.3d at
497. Second, “[g]overnment officials who perform
discretionary functions are generally entitled to qualified
immunity and are protected from civil damages so long as
‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pray v. City of Sandusky, 49 F.3d 1154, 1157 (6th
Cir. 1995) (quoting Harlow, 457 U.S. at 818); see also Toms
v. Taft, 338 F.3d 519, 524 (6th Cir. 2003). The district court
did not address these immunity defenses because it concluded
that Dean failed to establish a § 1983 claim.9
Although Byerley does not expressly argue on appeal that
he is entitled to the defense of absolute immunity, he does
rely on case law addressing the scope of absolute immunity
and quotes a long passage from one of those cases pertaining
to absolute immunity.10 Appellee’s Br. at 29. Also, Byerley

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No. 02-1421 Dean v. Byerley 21
process. One of these characteristics is that the controversies
with which the process deals are often “intense,” and the loser,
given an op portunity to do so, will frequently charge the
participants in the process with unconstitutional animus;
“[a]bsolute immunity is thus necessary to assure that judges,
advocates, and witnesses can perform their respective functions
without harassment or intimidation.” “A bsolute imm unity is
desig ned to free the judicial process from the hara ssment and
intimidation asso ciated with litigation.”
Appellee’s Br. at 29 (quoting Watts, 978 F.2d at 273) (citations omitted).
expressly raised the defense of absolute immunity during the
hearing on his motion for summary judgment, after which the
parties both submitted supplemental briefs on the issue.
Summ. J. Hr’g Tr. at 5-7; R. at 56-57. Because Byerley may
be asserting the defense of absolute immunity, we will
address the issue.
“The burden of justifying absolute immunity rests on the
official asserting the claim.” Harlow, 457 U.S. at 812; see
also Lomaz, 151 F.3d at 497. Therefore, Byerley had the
burden of proving that he is entitled to absolute immunity.
During the hearing on Byerley’s motion for summary
judgment, Byerley argued that “[t]he Supreme Court of the
State of Michigan in Rule 15 of the rules concerning the State
Bar of Michigan, granted absolute immunity to state bar staff
for conduct arising out of the performance of their duties.”
Summ. J. Hr’g Tr. at 5. Later, in his supplemental brief,
Byerley conceded that state rule 15 is irrelevant to the scope
of his immunity in this action because the scope of immunity
in a § 1983 action is determined by federal law. Def’s Second
Supplemental Br. in Supp. of Mot. for Summ. J. at 12; see
also Howlett v. Rose, 496 U.S. 356, 376 (1990); Wood v.
Strickland, 420 U.S. 308, 314 (1975). Byerley was correct to
retreat from his reliance on state rule 15 because the Supreme
Court has held that state-law immunities are irrelevant in
§ 1983 actions. Howlett, 496 U.S. at 376. Furthermore, in a
recent decision, this court held explicitly that state rule 15
does not immunize employees of the State Bar of Michigan
22 Dean v. Byerley No. 02-1421
from liability in § 1983 actions because state-law immunities
cannot be used to defeat § 1983 claims. Dubuc v. Michigan
Bd. of Law Exam’rs, 342 F.3d 610, 617 (6th Cir. 2003).
Nonetheless, Byerley argued he is entitled to absolute
immunity because the “Supreme Court of Michigan delegated
to the State Bar of Michigan the responsibility to investigate
the Character and Fitness of all applicants to the Bar . . . [and
t]his is an inherently judicial function.” Def.’s Second
Supplemental Br. in Supp. of Mot. for Summ. J. at 2.
The cases cited by Byerley in his appellate brief are
relevant to the scope of Byerley’s immunity in this action, but
they do not support his assertion that he is entitled to the
defense of absolute immunity. Appellee’s Br. at 29 (citing
Watts, 978 F.2d 269; Ginger v. Circuit Court, 372 F.2d 621
(6th Cir.), cert. denied, 387 U.S. 935 (1967)). In both Watts
and Ginger, this court held that the absolute immunity that
protects judicial officers engaged in judicial functions also
protects other state officials engaged in adjudicative
functions. Watts, 978 F.2d at 272-73; Ginger, 372 F.2d at
625. The holdings in both cases, however, were predicated
upon findings that the defendant state officials were engaged
in adjudicative functions. See Watts, 978 F.2d at 275-76
(holding that members of the Tennessee Board of Medical
Examiners were entitled to absolute immunity for actions
taken during proceedings to suspend plaintiff’s medical
license because the suspension proceedings were adjudicative
in nature and appropriate procedural safeguards were in
place); Ginger, 372 F.2d at 625 (holding that members of the
Grievance Committee of the State Bar of Michigan were
entitled to absolute immunity for actions taken during
proceedings to revoke plaintiff’s law license because the
disbarment proceedings were adjudicative in nature). When
deciding whether state officials are entitled to absolute
immunity, courts must conduct a functional analysis.
Holloway, 220 F.3d at 774; Lomaz, 151 F.3d at 497.
Immunity is determined by the “nature of the function
performed, not the identity of the actor who performed it.”

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No. 02-1421 Dean v. Byerley 23
11Although Barrett addresses the scope of the absolute immunity that
shields judges engaged in judicial functions, its analysis also applies to the
scope of the absolute immunity that shields other public officials engaged
in adjudicative functions. See Barrett, 130 F.3d at 255-57 . This is
because the scope o f absolute immunity depends upon the function
performed by the defendant, not the identity of the defendant. Watts v.
Burkhart, 978 F.2d 26 9, 275-76 (6th Cir. 1992) (en banc).
Holloway, 220 F.3d at 774 (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 269 (1993)) (internal quotation marks omitted).
In Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997),
cert. denied, 523 U.S. 1075 (1998), we discussed the factors
that courts must consider when determining whether an act is
judicial in nature, and thus protected by absolute immunity.11
First, the court must consider whether the function is
normally performed by an adjudicator. Id. at 255. However,
even if an act is not normally performed by an adjudicator,
the court should look to the act’s relation to a general function
normally performed by an adjudicator. Id. “This functional
approach examines the ‘nature’ and ‘function’ of the act, not
the act itself.” Id. Second, the court must consider whether
the plaintiff dealt with the defendant in the defendant’s
adjudicative capacity.
In Barrett, this court was faced with the question of
whether a judge was entitled to absolute immunity from
liability for actions she took in response to a litigant’s public
criticism of her. Id. at 253. The judge sent letters to
prosecutors stating that the litigant was harassing her. Those
letters prompted an investigation of the litigant. The judge
also made statements to the news media accusing the litigant
of stalking her. We determined that absolute immunity
shielded the judge from liability for her letters to the
prosecutors because the judge was attempting to preserve the
integrity of the judicial process, which is a function related to
those normally performed by an adjudicator. Id. at 258-59.
Furthermore, the litigant’s harassment stemmed from the
judge’s adverse decision against him; therefore, the litigant
24 Dean v. Byerley No. 02-1421
12Since we conclude that Byerley was not performing an adjudicative
function during the March 27, 2001 confrontation, we do not need to
reach the question of whether Dean de alt with Byerley in an adjudicative
capacity.
dealt with the judge in her adjudicative capacity. Id. at 260.
However, we also determined that absolute immunity did not
shield the judge from liability for her statements to the media
because speaking to the media about a litigant does not
preserve the integrity of the judicial process, and instead
merely informs the public of the judge’s views. Id. at 261.
In this case, the actions Byerley allegedly took in response
to Dean’s picketing are not functions normally performed by
an adjudicator nor are they related to functions normally
performed by an adjudicator. Although Byerley was
employed as Regulation Counsel for the State Bar of
Michigan and although the Bar is merely an extension of the
Michigan Supreme Court for purposes of deciding whether to
grant or deny Bar applications, it is clear on the record as it
now stands that Byerley was not performing an adjudicative
function during the March 27, 2001 confrontation.12 Dean
alleges that in response to his picketing, Byerley threatened
that Dean would never practice law in the state of Michigan
and threatened to have the picketers arrested. Neither of these
actions are related to the decision of whether to grant or deny
Dean’s Bar application. While reporting an applicant’s
conduct to the police and the Bar might be related to the
functions normally performed by an adjudicator, the actions
Dean alleges that Byerley took were of a different function
and nature. Byerley’s alleged actions were in the form of a
threat for the purpose of intimidating Dean so that Dean
would cease picketing. Byerley’s alleged actions were not in
the form of a statement to the police for the purpose of
reporting conduct by Dean that was unlawful, or in the form
of a statement to the Bar for the purpose of reporting conduct
by Dean that reflected adversely on Dean’s character.
Because Byerley has failed to demonstrate in any way that he

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No. 02-1421 Dean v. Byerley 25
was engaged in an adjudicative function when he allegedly
retaliated against Dean, Byerley is not entitled to summary
judgment based upon the defense of absolute immunity.
2. Qualified Immunity
Byerley has expressly raised the defense of qualified
immunity. Appellee’s Br. at 27. Byerley argues that his
alleged threats during the March 27, 2001 confrontation did
not violate Dean’s clearly established federal rights because
targeted residential picketing is not a constitutionally
protected activity. In Byerley’s view, Frisby established that
there is no right to engage in targeted residential picketing.
Appellee’s Br. at 28. Although Dean does not expressly
refute Byerley’s defense of qualified immunity in his
appellate brief, Dean repeatedly argues that, in the absence of
a time, place, or manner restriction, citizens have a
constitutionally protected right to engage in targeted
residential picketing. Also, during the hearing on Byerley’s
motion for summary judgment, Dean expressly refuted
Byerley’s defense of qualified immunity. Summ. J. Hr’g. Tr.
at 14-18.
This court conducts a three-step analysis of qualified
immunity claims.
First, we determine whether, based upon the applicable
law, the facts viewed in the light most favorable to the
plaintiffs show that a constitutional violation has
occurred. Second, we consider whether the violation
involved a clearly established constitutional right of
which a reasonable person would have known. Third, we
determine whether the plaintiff has offered sufficient
evidence to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly
established constitutional rights.
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quotation
omitted). Although the policy of this circuit is to resolve
26 Dean v. Byerley No. 02-1421
13In a sworn dep osition taken on June 19, 2001, Doolittle testified
about the March 27, 20 01 confrontation. Although Doolittle did not hear
Byerley’s alleged statement that Dean would never practice law due to his
picketing, Doolittle did confirm several aspects of Dean’s version of the
confrontation. Doolittle Dep., June 19 , 200 1, at 28. More specifically,
Do olittle stated that De an and the two hired individuals only picketed on
the street, that Byerley almost hit Dean with his car, and that Byerley
threatened to have the picketers arrested if they did not leave. Id. at 19-
20, 31. Doolittle also testified that during the confrontation, he heard
Byerley whisper something to Dean and that afterwards, Dean exclaimed,
“Did you hear what he said? You’ll never practice law in Michigan as
long as you’re picketing.” Id. at 28.
immunity questions at the earliest possible stage of the
litigation, “[s]ummary judgment is not appropriate if there is
a genuine factual dispute relating to whether [Byerley]
committed acts that allegedly violated clearly established
rights.” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir.),
cert. denied, 534 U.S. 1071 (2001); Mays v. City of Dayton,
134 F.3d 809, 813 (6th Cir.), cert. denied, 524 U.S. 942
(1998).
On appeal, Dean argues that Byerley’s alleged actions
during the March 27, 2001 confrontation violated his clearly
established First Amendment rights. Appellant’s Br. 16-19.
In his complaint, Dean alleged that Byerley threatened that
Dean would never practice law in the state of Michigan due
to his picketing, and that this threat referred to Dean’s
picketing in front of Byerley’s house as well as to Dean’s
picketing at the State Bar of Michigan building. In his
complaint, Dean also alleged that Byerley threatened to have
the picketers arrested. At the hearing on Byerley’s motion for
summary judgment, Dean presented a sworn deposition from
Larry Doolittle (“Doolittle”), one of the hired picketers,
detailing the March 27, 2001 confrontation.13 In his
complaint, Dean further alleged that Byerley’s threats chilled
his desire to continue picketing and that he has not picketed
near Byerley’s residence or the State Bar of Michigan
building since the confrontation.

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No. 02-1421 Dean v. Byerley 27
As discussed in Part II. B. 1. above, Dean had a
constitutionally protected right to engage in peaceful targeted
residential picketing, in the absence of an applicable time,
place, or manner regulation, and retaliation against Dean for
exercising that right would violate Dean’s First Amendment
rights. Therefore, Dean has satisfied the first hurdle
necessary to survive summary judgment based upon qualified
immunity by pointing to evidence showing that Byerley
violated Dean’s First Amendment rights. The Sixth Circuit
precedent holding that a § 1983 claim can be predicated upon
retaliation for exercising First Amendment rights and the
Supreme Court precedent holding that peaceful picketing is
constitutionally protected predate the March 27, 2001
confrontation, and thus the right to engage in peaceful
targeted residential picketing, free from such retaliation, was
clearly established at the time of the confrontation. See
Thaddeus-X, 175 F.3d 378. Therefore, Dean has satisfied the
second hurdle necessary to survive summary judgment based
upon qualified immunity by showing that the constitutional
right was clearly established. Finally, through his complaint
and Doolittle’s deposition, Dean has presented evidence that
Byerley’s alleged conduct was objectively unreasonable in
light of Dean’s clearly established First Amendment rights.
Therefore, Dean has satisfied the third hurdle necessary to
survive summary judgment based upon qualified immunity by
pointing to evidence showing that what Byerley did was
objectively unreasonable in light of clearly established
constitutional rights.
Byerley’s only arguments supporting his assertion that he
is entitled to qualified immunity are that targeted residential
picketing is not protected by the First Amendment, and that
his March 29, 2001 letter demonstrates that he only objected
to Dean’s picketing on Byerley’s private property. As
discussed in Part II. B. 1. above, Dean had a clearly
established right to engage in peaceful targeted residential
picketing in the absence of a narrowly tailored time, place, or
manner restriction. Also, Byerley never disputes, nor could
he dispute, that Dean had a clearly established right to picket
28 Dean v. Byerley No. 02-1421
14Additiona lly, we note that even if Byerle y were entitled to the
defense of qua lified imm unity, the defense would only shield him from
liability for Dean’s claim for damages, not from Dean’s claim for
equitab le relief, and thus would no t end the action. This court has held
that the defense of qualified immunity only bars claims for civil damages
against officers in their individ ual cap acities, no t claims for equitable
relief. Flagner v. Wilkinson, 241 F.3d 475 , 483 (6th C ir.), cert. denied,
534 U.S. 1071 (200 1); Littlejohn v. R ose, 768 F.2d 76 5, 772 (6th Cir.
198 5), cert. denied, 475 U.S. 104 5 (1986 ).
the State Bar of Michigan building. Finally, Byerley’s
March 29, 2001 letter, which clarified that Byerley only
objected to Dean’s picketing on Byerley’s private property,
could not undo the previous constitutional violation. Because
Dean demonstrated that he had a clearly established
constitutional right and pointed to evidence that shows that
Byerley violated that right, Byerley is not entitled to summary
judgment based upon the defense of qualified immunity.14
III. CONCLUSION
Dean had a constitutionally protected right to engage in
peaceful targeted residential picketing in the absence of a
narrowly tailored and applicable time, place, or manner
regulation prohibiting such picketing. The district court erred
in granting summary judgment to Byerley on the basis of its
determination that Byerley did not act under color of state law
during the March 27, 2001 confrontation. Additionally, we
conclude that Byerley is not entitled to summary judgment
based either on the defense of absolute immunity or on the
defense of qualified immunity. Consequently, we
REVERSE the district court’s grant of summary judgment
and REMAND for further proceedings consistent with this
opinion.

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No. 02-1421 Dean v. Byerley 29
______________
DISSENT
______________
SUTTON, Circuit Judge, dissenting. I see this case
differently. In Frisby v. Schultz, 487 U.S. 474 (1988), the
Supreme Court rejected a First and Fourteenth Amendment
challenge to a city ordinance that imposed a “complete ban”
on “targeted residential picketing” because (among other
reasons) it can “scarcely be doubted” that this medium of
communication is “offensive and disturbing,” because this
type of picketing is directed at “captive audience[s]” who “are
presumptively unwilling to receive” the message, and because
such picketing invariably “invade[s] residential privacy.” Id.
at 487–88. Consistent with Frisby, the State of Michigan
makes it unlawful “to engage in picketing a private residence
by any means or methods whatever.” Mich. Comp. Laws
§ 423.9f. On this record and under these circumstances, I fail
to see how E. Stephen Dean can tenably claim that Thomas
Byerley violated his constitutional rights, much less violated
his clearly established constitutional rights, when Byerley
objected to Dean’s targeted residential picketing of his home
on the morning of March 27, 2001. Add to this the
undisputed fact that Byerley wrote Dean a letter two days
after the picketing (but before the filing of this lawsuit)
confirming he had “a right to exercise [his] First Amendment
rights” in permissible ways, and it becomes difficult to
understand why Mr. Dean ought to be able to make a $2
million federal case out of this incident. In my view, the
district court properly rejected Dean’s federal claims as a
matter of law, and accordingly I respectfully dissent.
I. BACKGROUND
While a considerable number of ambiguities cloud this pro
se lawsuit, two things are clear: E. Stephen Dean had an
unsatisfying experience in submitting his application to
become a member of the Michigan Bar, and he believes that
30 Dean v. Byerley No. 02-1421
the defendant in this case, Thomas Byerley, sought to curb his
efforts to engage in targeted residential picketing of Byerley’s
house over his Bar application. In order to explain my
perspective on this case, the background to both points
deserves some elaboration.
Dean is a graduate of the Thomas Cooley School of Law.
In December 2000, he submitted his application for admission
to the State Bar of Michigan. As he was delivering the
application to the State Bar, he expressed concern to the
Executive Director of the Bar that his application was not
entirely complete. As a 60-year-old law-school graduate, he
explained that he was unable to identify each of his places of
residence over the course of his life and that he was
concerned that the omissions might prejudice his efforts to
gain admission to the Bar. When questioned by a Magistrate
at the hearing on Byerley’s motion for summary judgment,
Dean recounted what he had told the Executive Director in
the following words.
DEAN: I’m really concerned and what I’m concerned
about is not withholding anything, but, my gosh, I can’t
remember where I was 3 years ago and an apartment
number or something like that, and that has me a little
nervous. . . . The people at the bar handling this stuff are
under 30. Try explaining to somebody 25 years old . . .
that you don’t remember where you lived. They think
you’re crazy. I said, but if it’s 40 or 41 years ago it can
be tough. He said, oh, don’t worry about that; I took the
bar when I was in my 50s . . . they’ll work with you.
Well, that isn’t what I got from the bar. I got no phone
calls, you know, where were you and—I’d leave off a
couple of months someplace. I’ve lived in several states.
And they keep—first, they would ignore it for a couple
of weeks and then they would write back the same old,
same old, as if I were refusing to cooperate with them.
THE COURT: So they were trying to get information to
complete your application that they felt you ought to

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No. 02-1421 Dean v. Byerley 31
provide and you were having difficulty remembering the
information that you needed to provide.
DEAN: They were refusing to accept my up-
front—before I handed in the application, the attachment
to it, that I’ve done my absolute best but it’s difficult to
remember 38 or 40 or 25 years ago an exact address.
I’ve done my utmost here.
***
THE COURT: All right. And then this dialogue went on
between you and the staff members at the bar and
eventually that led to your beginning this picketing?
DEAN: That’s correct.
Summ. J. Hr’g Tr. at 38–39.
At some point after these exchanges with employees of the
Michigan Bar, but before the State had acted on his Bar
application and before he took the Bar exam, Dean began
picketing about his application and about the treatment he had
received from employees of the Michigan Bar. In his first
protest, in March 2001, Dean hired two individuals to assist
him in picketing the Michigan State Bar Building about the
treatment he had received in submitting his Bar application.
He paid each picketer $10 an hour.
Dean eventually extended his picketing to the residence of
Thomas Byerley, the Regulation Counsel and Director of the
Professional Standards Division for the Michigan Bar.
Among other things, the Professional Standards Division
oversees the Michigan Bar’s Character and Fitness
Department. Members of the Department investigate the
backgrounds of all State Bar applicants and assess whether
they have the requisite character and fitness to practice law in
Michigan. They then submit their findings to the Board of
32 Dean v. Byerley No. 02-1421
Law Examiners, which makes the ultimate admission
decisions about each application.
Dean arrived at the Byerley residence on the morning of
March 27, 2001, and brought with him the two mercenary
picketers he had employed in earlier demonstrations. No
sidewalk runs in front of Byerley’s home. Therefore,
according to Dean, he and his colleagues picketed on the
public street in front of the Byerley home and solely on that
part of the street in front of that home. According to Byerley,
the protestors also demonstrated on his property.
When Byerley left his home for work that morning, a
confrontation occurred. According to the allegations of the
complaint, Byerley (1) threatened to have Dean arrested for
illegal picketing and (2) told Dean he would never practice
law in the State of Michigan due to his illegal picketing.
After this confrontation and after Byerley had proceeded to
work, Dean and the two other protesters left. Since then,
Dean has not picketed Byerley’s home or the State Bar
Building.
Two days after this incident, on March 29, 2001, Byerley
sent a letter to Dean about his picketing. In full, the letter
reads as follows:
As you know, you and two other individuals were
outside of my private residence on Tuesday, March 27,
2001 carrying signs. Although you have a right to
exercise your First Amendment rights on public property,
you do not have that right on private property.
On March 27 I verbally told you that you were on
private property and that if you did not immediately
leave I would call the police. This letter memorializes
that statement. You are put on formal notice that you are
never welcome on my private property and that if you
trespass again I will ask that you be arrested.

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No. 02-1421 Dean v. Byerley 33
Similarly, you are notified that you are not to enter the
private property of any other State Bar of Michigan
employee or officer.
Def.’s Br. in Supp. of Mot. for Summ. J., Ex. E.
Rather than respond to this letter or seek to clarify his
authority to continue picketing, Dean filed this pro se
complaint for $2 million against Byerley on April 4, 2001.
He brought the claim in the United States District Court for
the Western District of Michigan, contending that Byerley:
(1) had violated his First (and Fourteenth) Amendment rights
and 42 U.S.C. § 1983 by threatening to arrest Dean or
retaliate against him for his residential picketing; (2) had
committed a state-law assault by driving his car at Dean; and
(3) had committed state-law libel by sending a letter to Dean
claiming he had been trespassing. Dean sought $2 million in
damages.
In July 2001, during discovery in the case, Dean voluntarily
withdrew his Michigan State Bar application. At a motions
hearing before a Magistrate on August 15, 2001, he said, “I
withdrew [my Michigan State Bar application] because I
thought it was best, and my letter of withdrawal to the bar
stated this—not verbatim, Judge—but that I felt it would be
best for me to get this lawsuit behind me before I went on
with my application to the bar and, therefore, I’m
withdrawing it at this time.” Tr. of Aug. 15, 2001 Magistrate
Mot. Hr’g at 9. At this hearing, in response to questions from
the Magistrate, Dean clarified that he was not alleging that
Byerley actually did anything to prevent him from being
admitted to the Bar or that he would do that. Id. at 8. And he
confirmed that he had not withdrawn his application because
of fears that Byerley would block the application. Id. at 9–10.
(Dean apparently has since become a member of the Missouri
Bar.)
In August 2001, Byerley filed a Motion for Summary
Judgment, which the Magistrate recommended granting. In
34 Dean v. Byerley No. 02-1421
the Magistrate’s view, Dean did not have a constitutional
right to picket Byerley’s residence in light of the Supreme
Court’s decision in Frisby v. Schultz, 487 U.S. 474 (1988),
which upheld a content-neutral ordinance barring focused
residential picketing. Accordingly, the Magistrate
recommended that the court dismiss Dean’s § 1983 claim and
not retain supplemental jurisdiction over his state-law claims.
The district court agreed with this recommended
disposition of the case but for different reasons. It concluded
that Dean’s § 1983 claim failed as a matter of law because
Byerley did not act under color of state law when he allegedly
threatened Dean that he would not become a member of the
Michigan Bar if he continued picketing at his home. Among
other reasons for reaching this conclusion, the district court
noted that Byerley did not have actual authority to reject or
approve Dean’s Bar Application. The court also dismissed
Dean’s state-law claims for lack of supplemental jurisdiction.
Dean responded with this appeal.
II. ANALYSIS
To obtain relief under § 1983, Dean must demonstrate that
(1) a person acting under color of state law (2) deprived him
of a right protected by either the Constitution or laws of the
United States. See Waters v. City of Morristown, 242 F.3d
353, 359 (6th Cir. 2001). In seeking $2 million in civil
damages against Byerley in his individual capacity, Dean
faces one more hurdle. He must show that the constitutional
claim upon which he relies was “clearly established” at the
time of the incident. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). As this Court has put it: “[T]he question is whether
any officer in the defendant’s position, measured objectively,
would have clearly understood that he was under an
affirmative duty to have refrained from such conduct.”
Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994). State
officials thus are “entitled to qualified immunity [when] their
decision was reasonable, even if mistaken.” Pray v. City of

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No. 02-1421 Dean v. Byerley 35
Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995) (quoting Castro
v. United States, 34 F.3d 106, 112 (2d Cir. 1994)).
There are two ways to construe Dean’s objection to
Byerley’s conduct, and neither of them suffices to establish a
cognizable § 1983 claim in this instance. One possibility is
that Dean believed Byerley sought to prevent him from
picketing on the morning of March 27th. But this theory
cannot succeed in view of the “color of state law”
requirement. As a staff member of the Michigan State Bar,
Byerley clearly did not have, or appear to have, authority to
prevent Dean from picketing on his property or on the street
in front of his property. He is not a law enforcement officer;
Dean knew he was not a law enforcement officer; and Dean
thus cannot say that Byerley was acting under color of state
law in this respect during their confrontation on the morning
of March 27th.
The second possibility, and the more probable one, is that
Dean believed Byerley’s conduct amounted to a threat of
retaliation if Dean continued to picket. That is to say, Dean
complains that Byerley threatened to undermine his efforts to
become a member of the State Bar if Dean continued
picketing at the Byerley home. A retaliation claim under
§ 1983 consists of three elements: (1) the plaintiff engaged in
constitutionally protected conduct (here, conduct protected by
the First Amendment); (2) the defendant took “an adverse
action” against the plaintiff that would deter “a person of
ordinary firmness” from continuing to engage in the conduct;
and (3) the adverse action was in some way motivated by the
plaintiff’s protected conduct. Thaddeus-X v. Blatter, 175 F.3d
378, 386, 394 (6th Cir. 1999) (en banc).
Dean cannot satisfy the first or second prong of this test.
As Frisby v. Shultz, 487 U.S. 474 (1988) makes clear, his
targeted residential picketing on the morning of March 27,
2001 did not amount to constitutionally protected conduct.
And in view of Byerley’s letter of March 29, 2001 (which
removed any threat of retaliation) and in view of Dean’s
36 Dean v. Byerley No. 02-1421
decision voluntarily to abandon his Michigan Bar application
(which eliminated anything to retaliate against), Dean cannot
tenably claim that “a person of ordinary firmness” would have
been dissuaded from engaging in legitimate speech by this
incident.
A. Dean Did Not Have a Clearly-Established
Constitutional Right To Engage In Targeted
Residential Picketing.
At issue in Frisby was a residential picketing ordinance
enacted by the town of Brookfield, Wisconsin. The ordinance
made it “unlawful for any person to engage in picketing
before or about the residence or dwelling of any individual”
and was designed to “protec[t] and preserv[e] the home” by
ensuring “that members of the community enjoy in their
homes . . . a feeling of well-being, tranquility, and privacy.”
487 U.S. at 477. The Town Board also believed that “the
practice of picketing before or about residences and dwellings
causes emotional disturbance and distress to the occupants . . .
[and] has as its object the harassing of such occupants.” Id.
In reviewing the ordinance, the Court first determined that
it was “content neutral,” which is to say it banned all
residential picketing regardless of the subject matter of the
speech. Id. at 481–82. The Court then applied the familiar
time-place-and-manner test applicable to content-neutral
regulations of speech in traditional public fora. Writing for
the Court, Justice O’Connor first reasoned that the ordinance
left open “alternative channels of communication” as it
applied only to picketing directly in front of a single
residence. Id. at 483–84. She then explained that the
ordinance served a “significant government interest” because
“‘the State’s interest in protecting the well-being, tranquility,
and privacy of the home is certainly of the highest order in a
free and civilized society.’” Id. at 484 (quoting Carey v.
Brown, 447 U.S. 455, 471 (1980)). That was particularly true
in the context of a ban on targeted residential picketing, she
added, given the importance of “protect[ing]” “unwilling

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No. 02-1421 Dean v. Byerley 37
listener[s]” in their own homes. Id. at 484–85. Lastly, she
concluded that the ordinance was “narrowly tailored to
protect only unwilling recipients of the communications”
because “the type of picketers banned by the Brookfield
ordinance generally do not seek to disseminate a message to
the general public, but to intrude upon the targeted resident,
and to do so in an especially offensive way.” Id. at 485–86.
The means-end fit between the objectives of the ordinance
and the methods of furthering them sufficed, the Court
observed, since the “devastating effect of targeted picketing
on the quiet enjoyment of the home is beyond doubt.” Id. at
486. See id. (“To those inside . . .[,] the home becomes
something less than a home when and while the picketing . . .
continue[s] . . . . [The] tensions and pressures may be
psychological, not physical, but they are not, for that reason,
less inimical to family privacy and truly domestic
tranquility.”) (internal quotations omitted).
Fifteen years after Frisby, it is difficult to understand how
Mr. Dean can claim that he had a constitutional right, let
alone a “clearly established” constitutional right, to engage in
what he acknowledges was targeted residential picketing of
the Byerley home on the morning of March 27th. That
conclusion seems not just improbable but impossible in the
aftermath of Frisby, a decision that to my knowledge
uniformly has been followed by the lower courts in the last
decade and a half.
Making the parallels between this case and Frisby more
salient still is the existence of a Michigan statute that, like the
ordinance in Frisby, specifically bans residential picketing.
As the majority points out, the parties’ briefs in the district
court and in this Court seemed to assume that Michigan does
not ban targeted residential picketing. Apparently, in the
State’s view of this dispute, the existence of Frisby as well as
the general prohibition against trespassing on private property
sufficed to reject this constitutional claim. Appellee Br. at 20,
23–24. When this line of thinking was challenged at oral
argument, counsel for Byerley insisted that Michigan law
38 Dean v. Byerley No. 02-1421
does prohibit such picketing but did not offer any specific
authority to support this proposition.
Further review confirms that a Michigan statute does
prohibit private residential picketing. Under Mich. Comp.
Laws § 423.9f, “[i]t shall be unlawful . . . to engage in
picketing a private residence by any means or methods
whatever: Provided, That picketing, to the extent that the
same is authorized under constitutional provisions, shall in no
manner be prohibited.” Violations of the section are treated
as a misdemeanor. Id.
The majority concludes that this provision does not apply
here because it should be construed to apply only to picketing
regarding labor-related matters. Maj. Op. at 9. I disagree
with that conclusion. Dean was picketing about a matter
related to labor and employment—namely, his effort to
become a lawyer in the State of Michigan and his effort to be
available for employment in that profession. When
individuals attempt to become members of the legal
profession, as when they are regulated in the profession, they
are involved in a matter of labor—or at least employment.
That is particularly true here in view of Dean’s apparent claim
that employees of the Michigan Bar showed an age bias
against him in discussing his application with them.
The provision, at any rate, plainly covers all forms of
picketing, whether employment-related or not. While the
provision appears in a chapter of the Michigan Code labeled
“Labor Disputes and Employment Relations,” the statute by
its terms applies to all residential picketing: It refers to all
“picketing” of any “private residence” and “by any means or
methods whatever.” Id. A statute that comes with these
kinds of explicit directions leaves no room for
discretion—whether that discretion is invoked on the basis of
the title of the law or its preamble. For neither the title of a
statute nor the preamble of a bill has the capacity to impose
a limitation that the statute explicitly removes. See Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“The title of a

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No. 02-1421 Dean v. Byerley 39
statute . . . cannot limit the plain meaning of the text.”)
(quotation omitted); Price v. Forrest, 173 U.S. 410, 427
(1899) (“Although a preamble has been said to be a key to
open the understanding of a statute, we must not be
understood as adjudging that a statute, clear and unambiguous
in its enacting parts, may be so controlled by its preamble as
to justify a construction plainly inconsistent with the words
used in the body of the statute.”); Browder v. Int’l Fidelity
Ins. Co., 321 N.W.2d 668, 673 (Mich. 1982) (“A basic rule of
statutory construction is that where the Legislature uses
certain and unambiguous language, the plain meaning of the
statute must be followed.”); King v. Ford Motor Credit Co.,
668 N.W.2d 357, 363 (Mich. Ct. App. 2003) (“The preamble
can neither limit nor extend the meaning of a statute which is
clear. Similarly, it cannot be used to create doubt or
uncertainty.”) (quoting 2A Norman J. Singer, Sutherland
Statutory Construction § 47:04, at 224 (6th ed. 2000)).
Nor does the preamble or title of this law—even if one of
them could alter the plain meaning of the statute—lead to a
different conclusion. The preamble (as amended in 1947
when the residential picketing ban was added) says only that
the bill is designed generally to “limit the right to strike and
picket.” Mich. Comp. Laws § 423 pmbl. It does not restrict
the provision to picketing on labor or employment matters,
even though other portions of the preamble discuss subjects
of the law in the limited context of labor and employment. Id.
Likewise, while this anti-picketing legislation was enacted in
an amendment to a piece of legislation with a labor and
employment title, that fact tells us nothing about whether the
legislature chose—as its words clearly indicate—to extend the
ban to all forms of picketing rather than just some.
The surrounding legislative text of the provision also fails
to change matters. Once again, it seems doubtful that
surrounding text by itself ever could alter language as plain as
this. See Field v. Mans, 516 U.S. 59, 67 (1995) (cautioning
that a contextual inference “should not be elevated to the level
of interpretive trump card”); Conn. Nat’l Bank v. Germain,
40 Dean v. Byerley No. 02-1421
503 U.S. 249, 253–54 (1992) (“[A] court should always turn
to one, cardinal canon before all others[,] . . . that a legislature
says in a statute what it means and means in a statute what it
says there. When the words of a statute are unambiguous,
then, this first canon is also the last: judicial inquiry is
complete.”) (internal quotations and citations omitted);
Browder v. Int’l Fidelity Ins. Co., 321 N.W.2d 668, 673
(Mich. 1982) (“A basic rule of statutory construction is that
where the Legislature uses certain and unambiguous
language, the plain meaning of the statute must be
followed.”).
This context-based argument also raises more interpretive
questions than it answers. While two of the four prohibited
activities covered by § 423.9f specifically relate to labor-and-
employment picketing, two of them do not—thus removing
the very inference the majority invokes. In full, the text
reads:
It shall be unlawful (1) for any person or persons to
hinder or prevent by mass picketing, unlawful threats or
force the pursuit of any lawful work or employment,
(2) to obstruct or interfere with entrance to or egress from
any place of employment, (3) to obstruct or interfere with
free and uninterrupted use of public roads, streets,
highways, railways, airports, or other ways of travel or
conveyance, or (4) to engage in picketing a private
residence by any means or methods whatever: Provided,
That picketing, to the extent that the same is authorized
under constitutional provisions, shall in no manner be
prohibited. Violation of this section shall be a
misdemeanor and punishable as such.
(Emphasis added.) In view of the legislature’s decision to
specify a labor-and-employment orientation as to some
prohibitions, but not as to others, the customary rule of
interpretation is to assume that the legislature meant to give
force to the differential language. See Russello v. United
States, 464 U.S. 16, 23 (1983); Cherry Growers, Inc. v.

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No. 02-1421 Dean v. Byerley 41
Agric. Mktg. & Bargaining Bd., 610 N.W.2d 613, 622 (Mich.
Ct. App. 2000).
Nor does adherence to the plain terms of this statute lead to
an “absurd result,” which is the only other possible
explanation for disregarding words as clear as these. See,
e.g., United States v. Rodgers, 466 U.S. 475, 484 (1984)
(plain language controls unless it leads to “absurd” results);
Brandon Charter Township v. Tippett, 616 N.W.2d 243, 246
(Mich. Ct. App. 2000) (same). After all, the Michigan
Legislature surely could have taken the view that a statute that
proscribes all residential picketing on all topics of speech was
not only fair—because it would avoid favoring one subject of
speech over another—but it was the only choice available. A
law that banned residential picketing when, and only when,
the message of the demonstrator concerns labor would be
patently unconstitutional. See Carey v. Brown, 447 U.S. 455
(1980) (invalidating a restriction on picketing that applied to
all subjects, except labor, as impermissibly content based);
Frisby, supra (upholding ban on targeted residential picketing
because, among other reasons, the ban was content neutral).
Far from being unusual to include a complete ban on targeted
residential picketing in a bill about labor and employment
issues, then, it was the only choice the Michigan Legislature
had.
In the face of Brown and Frisby and in the face of the
general prohibition against content-based regulations of
speech, the doctrine of constitutional avoidance resolves any
remaining doubts about the meaning of this law. Indeed, in
Frisby itself, which also involved a criminal law, 487 U.S. at
477, the Court applied the same doctrine in construing the law
at issue to apply just to targeted residential picketing. Id. at
482 (“The precise scope of the ban is not further described
within the text of the ordinance, but in our view the ordinance
is readily subject to a narrowing construction that avoids
constitutional difficulties.”). And in Frisby, the Court also
accepted “the lower courts’ conclusion that the Brookfield
ordinance is content neutral” and rejected an argument that
42 Dean v. Byerley No. 02-1421
the law should be construed to contain an exception for labor
picketing—the mirror image of the problem we have here. Id.
at 481–82. Thus, in Frisby, the Court accepted one narrowing
interpretation of the law (making it applicable only to targeted
residential picketing) and rejected one narrowing
interpretation of the law (making it applicable to residential
picketing on all topics, whether labor-related or not). In the
same year the Court decided Frisby, it hewed to this path in
Boos v. Barry, 485 U.S. 312 (1988). There, too, the Court
accepted a narrowing interpretation of a District of Columbia
criminal law prohibiting persons from congregating near
embassies (making the law applicable only to violent
protests), id. at 331, and rejected a narrowing interpretation of
the law (making the law applicable to all protests, whether
labor-related or not), id. at 333. Cf. United States v. Seeger,
380 U.S. 163, 176 (1965) (broadening the interpretation of
“Supreme Being”—an awesome task to be sure—to “avoid[]
imputing to Congress an intent to classify different religious
beliefs, exempting some and excluding others”).
Informed by Frisby’s (and Boos’s) example of minimizing
rather than accentuating the potential infirmities of a law, I
would follow a similar course here. The statute at issue
makes it unlawful “to engage in picketing a private residence
by any means or methods whatever.” In the confines of this
straightforward language, the statute cannot be narrowed to
ban “picketing a private residence on matters of labor and
employment by any means or methods whatever”—which is
not what the statute says (or even suggests) and which no rule
of construction with which I am familiar permits. An
alternative approach would not only create a potential
constitutional claim in this case against Mr. Byerley but
would also invalidate the Michigan residential picketing
statute—a two-for-the-price-of-one constitutional ruling that
cannot coexist with the salutary premises of the constitutional
avoidance doctrine.
This is all the more true in a qualified immunity setting
where the question is not just whether Dean had a right to

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No. 02-1421 Dean v. Byerley 43
picket Byerley’s home, but also whether that right was clearly
established in March 2001. See Sanatana v. Calderon, 342
F.3d 18, 30 (1st Cir. 2003) (Because “any ruling by us on the
constitutional right question would be premised on our best
judgment about the application [of a state law,] . . . . the best
way for us to reconcile our competing obligations of faithful
application of the federal law of qualified immunity and
respect for the primacy of [state law] is to focus on the second
step of the qualified immunity analysis—the clearly
established question.”). When the United States Supreme
Court has upheld a “complete ban” on targeted residential
picketing, when the State of Michigan has made it “unlawful
. . . to engage in picketing a private residence by any means
or methods whatever,” and when no court has previously
interpreted the scope of this seemingly straightforward text,
it seems plain that Dean did not have a clearly-established
right to picket Byerley’s residence. See Saucier v. Katz, 533
U.S. 194, 206 (2001) (“Qualified immunity operates . . . to
ensure that before they are subjected to suit, officers are on
notice that their conduct is unlawful.”); Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (“The contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”);
Santana, 342 F.3d at 30–31 (holding that a state employee’s
Fourteenth Amendment due process right to retain her job
was not clearly established because a property right was not
clearly established under Puerto Rico law); Young v.
Harrison, 284 F.3d 863, 868–69 (8th Cir. 2002) (holding that
an evicted hotel guest’s Fourth Amendment right to be free
from a warrantless search of his hotel room was not clearly
established because his continuing interest in the hotel room
was not clearly established under South Dakota law). Cf.
Spruytte v. Walters, 753 F.2d 498, 510–11 (6th Cir. 1985)
(denying prison officials qualified immunity for due process
violations where the meaning of a state regulation creating the
property right was clearly established).
44 Dean v. Byerley No. 02-1421
B. Dean Did Not Suffer An Adverse Action
That Would Deter A Person Of Ordinary
Firmness.
In addition to failing to show that he was engaged in
constitutionally protected conduct, Dean also has failed to
show that Byerley took an “adverse action” against him that
would deter “a person of ordinary firmness” from continuing
to engage in the challenged conduct. Recall that just two days
after this confrontation and before this lawsuit was filed,
Byerley sent Dean a letter indicating that he was free “to
exercise [his] First Amendment rights” so long as he did so
on public, not private, property. In the aftermath of this letter,
which Dean does not deny receiving and to which Dean never
responded, the fact dispute of whether Dean picketed on
private or public property becomes irrelevant. The letter
makes clear that the picketing could continue, just not on
Byerley’s property. No rational juror could read this letter to
say that Dean would still be at risk (from Byerley at least) by
continuing to picket on public property.
Had Byerley followed through on his alleged threats, to be
sure, his acts would have constituted “adverse action” of a
constitutional magnitude. See, e.g., Hoover v. Radabaugh,
307 F.3d 460 (6th Cir. 2002) (terminating a public employee
is an adverse action); Farmer v. Cleveland Public Power, 295
F.3d 593, 602 (reducing a public employee’s job
responsibilities is an adverse action). But Byerley did not
deny or obstruct Dean’s Bar application or have Dean
arrested. He allegedly just threatened to do so, then retracted
the threat two days later.
Marginalizing his claim still further (and mooting his claim
for injunctive relief), Dean concedes that he withdrew his Bar
application voluntarily, not because of fears that Byerley
would block it. Never to my knowledge has this Court found
“adverse action” with respect to events as inconsequential as
these. And, indeed, the extension of § 1983 to this setting
serves to “trivialize the First Amendment” rather than to

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No. 02-1421 Dean v. Byerley 45
reinforce it. See Mattox v. City of Forest Park, 183 F.3d 515,
521 (6th Cir. 1999) (“[A]llowing constitutional redress for
every minor harassment may serve to trivialize the First
Amendment.”); id. at 522 (“A deliberate attempt to discredit
[a public official], especially if initiated in retaliation for her
actions in investigating the fire department, is perhaps an
inappropriate and unfortunate occurrence, but on the facts of
this case, it is not the type of ‘adverse action’ against which
the First Amendment protects. It is not the equivalent of
being fired by a government employer for expressing
protected views.”); Thaddeus-X, 175 F.3d at 398 (recognizing
that “certain threats or deprivations are so de minimis that
they do not rise to the level of being constitutional violations”
and that the courts may “weed out” such “inconsequential
actions”); Davidian v. O’Mara, No. 99-5423, 2000 WL
377342, at *4 (6th Cir. Apr. 7, 2000) (being temporarily
denied access to public information was not an adverse
action); Neier v. City of Pemberville, No. 99-3104, 2000 WL
32008, at *4 (6th Cir. Jan. 4, 2000) (a threat made by
defendant “that plaintiff would lose his job unless he dropped
his [] claim” was not an adverse action where “[p]laintiff
realized that [defendant] was without authority to carry out
such a threat and plaintiff does not allege that [defendant]
made an effort to have him terminated”).
Like the district court before us (and the Magistrate as
well), I believe that Dean’s First Amendment claim fails as a
matter of law. As these views have garnered a majority of
one, I respectfully dissent.

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