240 F.3d 512

ENGEL, Circuit Judge,
dissenting.
I respectfully but strongly dissent. My dissent is based upon several premises which I think are flawed in the majority’s rationale. <
First, I dissent from the majority’s conclusion that “no reasonable jury could conclude that Office Cole had probable cause to believe that McCurdy presented a risk of physical harm either to himself, others or the property of others” and that “generously granting Officer Cole the benefit of all inferences and doubts, Officer Cole at best presumed that McCurdy presented a risk of harm either to himself, another or the property of another because he appeared to be intoxicated.” That statement does not fairly represent the record nor Officer Cole’s testimony.
The proofs before the court contained objective and credible facts from which a reasonable police officer could find probable cause to believe that McCurdy presented a risk of physical harm under the statute cited. Officer Cole testified that he found McCurdy outside at 5:00 a.m. He and his companions were not only intoxicated, but also acted as if they wanted to fight the police officer and perhaps each other. He testified that McCurdy used profanity when speaking to him. Based McCurdy’s intoxication, his unprovoked disorderly mannerism toward the officer, and the time of day, the officer concluded that he presented a risk of harm to himself. The jury agreed.
The majority focuses on Officer Cole’s testimony he could only “speculate” on the “one of a million things” that might occur if he did not arrest McCurdy. Bear in mind “one of a million things” is not the same as “one in a million” chance that he might do injury to himself and others. How could any police officer know exactly which particular injury a man at that time of day in an intoxicated condition after having been drinking most of the night, might do, whether he might get in a fight with a third party, whether he might stagger into the street in front of a truck, whether he might fall off a bridge, or as Officer Cole said “any one of a million things.”
The majority in this case is requiring a high degree of specificity from the officer to support his conclusion that McCurdy presented a risk of harm. Merely because the officer could not predict which of the million things McCurdy might do does not render the arrest without probable cause. While conviction under the Ohio disorderly conduct while intoxicated statute clearly requires something more than intoxication alone, the evidence required under Ohio case law need not be as specific as the majority contends.
In this latter respect I am particularly concerned about the court’s rebanee upon State v. Pennington, No.1988CA00137, 1998 WL 818632 (Ohio App. Nov. 16,1998), and State v. Jenkins, No. L-97-1303, 1998 WL 161190 (Ohio App. March 31, 1998). The majority’s reliance on these two cases is seriously flawed. Both Pennington and Jenkins were published two years after the incident in question and would not be proper authority for judging Officer Cole’s qualified immunity in any event. Second, Pennington and Jenkins were decisions of an intermediate court of appeals of Lucas County (Jenkins) and Stark County (Pennington) when in fact this case arose in Hamilton County.
Of even more serious concern, each of the cited cases contain a prominent notice that Rule 2 of the Ohio Supreme Court Rules for the Reporting of Opinions imposes restrictions and limitations on the use of unpublished opinions. Rule 2(G)(2) provides that unpublished opinions are not controbing even in the judicial district in which the opinion was rendered. This impacts upon our decision here in at least two respects. First, neither Pennington nor Jenkins is acceptable authority for the posture of Ohio’s interpretation of the act in question by the very terms of Rule 2. Second, if they did properly reflect Ohio law, they did not do so at the time of the event here. If the officer’s culpability is based upon his understanding of Ohio law at the time of the offense, it is totaby unfair to conclude that he ought reasonably to have anticipated this would be the law which he should then have obeyed two years before its issuance and which should have prompted him not to act as he did.
The majority might better have looked to published Ohio cases for guidance on interpretation of the Ohio disorderly conduct while intoxicated statute. In State v. Parks, 56 Ohio App.3d 8, 564 N.E.2d 747 (Ohio App.1990), overruled on other grounds, State v. Jenkins, 75 Ohio App.3d 63, 598 N.E.2d 872 (Ohio App.1991), the court held that the defendant’s act of sitting peaceably in the passenger seat of a car that was parked in a driveway in an intoxicated state did not create the kind of risk of physical harm to himself that was intended to be encompassed by R.C. 2917.11(B)(2). The' court rejected the state’s argument that the defendant’s refusal to get out of the car presented a risk of harm because he might have been injured when the police assisted him out of the car. The court determined that this entirely passive conduct was not the kind of foreseeable consequence envisioned by the statute. Parks, 564 N.E.2d at 750.
Under published Ohio law the foreseeability of the risk of harm requires the exercise of professional judgment. In Knapp v. Gurish, 44 Ohio App.3d 57, 541 N.E.2d 121 (Ohio App.1989), the defendant police officer was sued for faihng to arrest an intoxicated person under the statute. The court observed that “the duty to arrest a person for disorderly conduct while intoxicated is necessarily discretionary.” Id. at 123.
R.C. 2917.11(B)(2) requires that a police officer assess the condition of the intoxicated person and determine whether his condition poses a risk of harm to himself or others. This assessment requires an exercise of professional judgment that is essential to the proper implementation of the statute.
Id. at 123.
The majority studiously avoids consideration of McCurdy’s abusive language in their consideration of probable cause under the statute. Yet, as noted in State v. Butler, 63 Ohio App.3d 157, 578 N.E.2d 485 (Ohio App.1989), a defendant’s use of profanity may be considered for purposes of determining disorderly conduct under the statute. Butler, 578 N.E.2d at 488. In Butler the court found the evidence sufficient to support a conviction under R.C. § 2917.11(B)(1), the section regarding offensive conduct as opposed to a risk of harm. The evidence presented was similar to the evidence in this case: the defendant smelled of alcohol, had slurred speech, talked very loudly, berated the police, was very antagonistic towards the officers, and used profanity towards the officers. 578 N.E.2d at 486-87.
Officers must be tolerant of abusive language. Nevertheless, McCurdy’s abusive language (and make no mistake about it, it was abusive from the start), even if protected by the First Amendment generally, was nonetheless belligerent. Given the overall circumstances it could reasonably have induced an officer in Cole’s position to conclude under Ohio law, as it was then known, that there was a risk of actual harm. The objectively reasonable police officer, which is our measure here, certainly had a right to consider such language not only as indicative of McCurdy’s intoxication, but also of his frame of mind. There are happy drunks and there are mad drunks. Officer Cole could reasonably conclude that McCurdy in his then condition and combative frame of mind, did in fact present the danger requisite under the Ohio statute.
Even assuming that the two unpublished cases cited by the majority might somehow accurately reflect Ohio’s interpretation of its statute, they fail to support the majority’s construction in any event. In Jenkins, the defendant was found passed out and slumped over the steering wheel of a car which was stolen, and was arrested for disorderly conduct under TMC 509.03(b)(2). The court observed that the statute he was arrested under, like OHIO Rev.Code Ann. § 2917.11(B)(2) (the statute at issue in this case), required “some affirmative conduct” on the part of the defendant beyond merely being intoxicated in public. Jenkins, 1998 WL 161190 at *6. The court specifically held that “the officer had probable cause to arrest and search appellant for disorderly conduct where appellant parked his car to obstruct traffic flow into a carry-out store. Appellant created a risk of harm to himself and others as well as to any car which may have entered that driveway.” Id. at *7. Thus, Jenkins’ conviction was affirmed in that case in all events.
In Pennington, supra, the appellant resisted efforts of police to talk to him after the police responded to a call which asserted that the appellant was “pounding on the door and refusing to leave.” When they called out “stop, police” Pennington continued to run until he was caught and knocked down and subdued and thereafter arrested by officers who noted that he “smelled of alcohol, staggered, and his speech was slurred and his eyes were glassy.” That court found that there was no evidence that appellant “was placing himself at risk by running, other than he was running in a bad neighborhood. We find such evidence is legally insufficient to sustain a conviction under the subsection of O.R.C. § 2917.11 charged in the case sub judice.” Although there was in the judgment of that court insufficient evidence of disorderly conduct, the court of appeals found nonetheless that Pennington’s arrest was lawful: “when applying the objective test, to the facts in the instant appeal, based upon the nature of the trouble call, the time of the day, and the personal observations of the officers at the scene, we find a reasonable police officer would have believed appellant’s conduct constituted a violation of O.R.C. § 2917.11(A)(2). Despite our decision in I, supra, there was insufficient evidence of disorderly conduct by intoxication as charged in the complaint, we find the appellant’s arrest was nonetheless lawful.”
Whether to arrest or not is a judgment call made on the spot by the officer, and accordingly the evidence supporting the officer’s probable cause determination does not require the same degree of specificity as the evidence to support a conviction beyond a reasonable doubt.
The jury in this case was properly instructed on the elements of risk of physical harm, and the definition of risk as a significant as opposed to a remote possibility. While the evidence of disorderly conduct might not have been very strong, there was some evidence. Because it cannot be said that there was a complete absence of fact to support the jury’s verdict that the arrest was supported by probable cause, this Court should affirm. See Pouillon v. City of Owosso, 206 F.3d 711, 719 (6th Cir.2000).
I also disagree with the majority’s view in Part B of the opinion that the district court erred in granting Officer Cole’s motion for qualified immunity on the First Amendment claim. I find this a more difficult question but believe it is mooted out by the specific findings of the trial court and the jury in all events.
The majority holds that the district court erred in its conclusion that when Officer Cole acted, it was not clearly established that the First Amendment prohibited an officer from effectuating an otherwise valid arrest if that officer was motivated in part by a desire to retaliate against the arrestee’s assertion of First Amendment rights. The majority reasons that because it was well-established then that McCurdy had a constitutional right to challenge verbally Officer Cole’s surveillance, the district court erred in granting Officer Cole qualified immunity on the retaliation claim.
In support of this position, the majority relies on Bloch v. Ribar, 156 F.3d 673 (6th Cir.1998). In Bloch a rape victim and her husband filed a § 1983 retaliation claim against a sheriff who they alleged had violated their constitutional rights by issuing a press release discussing the sensitive details of rape in retaliation for the plaintiffs’ exercise of their first amendment right to criticize public officials. Id. at 678. We reversed the district court’s grant of qualified immunity to the sheriff. We reasoned that the right to criticize public officials was clearly established, as was the principle that a public official’s retaliation against an individual for exercising First Amendment rights is a violation of § 1983. Id. at 682-83.
There are two problems with the majority’s reliance on Bloch. First, Bloch had not been decided at the time Officer Cole arrested McCurdy. Officer Cole’s arrest of McCurdy occurred in 1996. Bloch was not decided until 1998. Under the doctrine of qualified immunity “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This means that the applicable law must have been clearly established at the time the action occurred. Id. “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know1 that the law forbade conduct not previously identified as unlawful.” Id.
Second, Bloch involved a sheriffs press release. It did not involve an arrest. Even if we accepted that the law articulated in Bloch was clearly established in 1996, the retaliatory action alleged in Bloch did not arise in the context of an arrest.
As noted in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the operation of the qualified immunity standard depends substantially upon the level of generality at which the relevant “legal 'rule” is to be identified. Id. at 639, 107 S.Ct. 3034. The contours of the right the official is alleged to have violated must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 640, 107 S.Ct. 3034. Qualified immunity does not turn on whether the very action in question has previously been held unlawful, but the unlawfulness must be apparent in the light of pre-existing law. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). It is not a matter of trying to figure out at the scene just what F— words or other epithets amount to or do not amount to “fighting words” by legal precedent, or determining in a judicial post-mortem whether they should.
The relevant pre-existing law on the issue of retaliation is found in Mt. Healthy City School Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy involved a school board’s decision not to rehire a teacher in retaliation for his exercise of constitutionally protected speech. Because Mt. Healthy did not involve a police officer’s decision to arrest, an obligation at the core of the officer’s responsibilities, and necessarily made on the spot without the luxury of investigation, it was not apparent that Mt. Healthy would govern the police officer’s conduct.
Whether a plaintiff may recover for a deprivation of First Amendment rights caused by an allegedly retaliatory arrest which the officer had probable cause to effect was not a matter of clearly established law in 1996. Indeed, it is still an issue that is subject to debate in the federal courts. The majority cites no Supreme Court or published Sixth Circuit cases discussing retaliation claims in the context of an arrest, and I am aware of none. The defendants raised the argument that .no retaliation claim may be brought if the arrest is supported by probable cause in Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir.1999), but the validity of this position was not ruled on because there was a previous finding that there was no probable cause. Id. at 1013. We did consider this issue in an unpublished case, Sandul v. Larion, 52 F.3d 326 (Table), 1995 WL 216919 (6th Cir.1995). In San-dul we suggested that if the officers had probable cause to support the arrest, then-actual motives were irrelevant. Id. at *4 (quoting Criss v. City of Kent, 867 F.2d 259 (6th Cir.1988)). Recognizing that San-dul is no more authoritative than many of the cases cited by the majority, it nonetheless well illustrates the uncertain posture of the law at the time of the events involved here.
Because the federal courts are still disputing the issue of retaliation in the context of an arrest, it can hardly be said that it should have been apparent to Officer Cole in 1996, that he could not arrest an individual, even though he had probable cause to effect the arrest, if the individual’s protected speech at the time had any impact on the officer’s decision to arrest.
Mt. Healthy counsels affirmance here even though Officer Cole may in fact have been influenced by the foul and abusive language employed by Mr. McCurdy. Particularly relevant is the Supreme Court’s observation that some incidents inevitably remain on the minds of those responsible for making decisions. “A rule of causation which focuses solely on whether protected conduct played a part, substantial or otherwise, in a decision not to rehire could place an employee in a better position as a result of the exercise of a constitutionally protected conduct than he would have occupied had he done nothing.” Mt. Healthy, 429 U.S. at 285, 97 S.Ct. 568. Applying that principle to the case here, it is even more disturbing that a drunk using offensive and foul language in the course of a Terry stop, could for that reason alone under the pretense of First Amendment protected speech, intimidate and goad a police officer into believing that he dare not do what he conceives to be his duty lest somehow he violate that drunk’s constitutional rights. As Justice Rehnquist stated: “The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in that conduct.” Mt. Healthy, 429 U.S. at 285-86, 97 S.Ct. 568. Certainly an individual should not be arrested because of constitutionally protected offensive language. But the same individual ought not to be able, by using offensive language, to prevent a police officer from assessing his conduct, and reaching a decision to arrest him, simply because the offensive language makes the police officer more certain of the correctness of his decision. See Mt. Healthy, 429 U.S. at 286, 97 S.Ct. 568. I do not believe that the Supreme Court, in creating the qualified immunity doctrine, intended to so hobble a police officer in the course of his duties.

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