CINCINNATI (CN) – An anti-abortion protester detained for over two days after she allegedly made bomb threats outside a Michigan abortion clinic argued on Wednesday before the Sixth Circuit there was no probable cause for officers to arrest her.
Kimberly Thames filed a civil rights lawsuit in 2016 against the city of Westland, its police chief and several police officers following her arrest outside the Northland Family Planning Center in August of that year.
Thames was arrested after a security guard at the clinic accused her of saying, “I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future.”
The 57-year-old Roman Catholic denied making the statements, but was arrested for violations of Michigan’s anti-terrorism statute and held in the Westland police station for over 49 hours before her release.
Westland police concluded there was probable cause for Thames’ arrest, but declined to charge her with a crime.
Thames alleged in her federal lawsuit that Westland and its police officers violated her First, Fourth and 14th Amendment rights, while the officers claimed they were entitled to qualified immunity.
U.S. District Judge George Caram Steeh delivered a mixed ruling in April 2018. While he granted summary judgment to the city and its Police Chief Jeff Jedrusik on all claims against them, he denied the arresting officers’ request for immunity.
Steeh also denied Thames’ motion for summary judgment on her claims.
The judge ruled that because the officers did not evacuate the abortion clinic, search in the vicinity of the clinic for a bomb, or impound Thames’ vehicle, they did not consider her statements to be a “true threat.”
Steeh, therefore, concluded “a jury question remains as to whether there was probable cause for the arrest.”
Two of the arresting officers, Sergeant Norman Brooks and Officer John Gatti, were also denied immunity for Thames’ First Amendment retaliation claim.
Judge Steeh cited the following evidence in his opinion: “(1) Sergeant Brooks who ordered the arrest, testified that ‘you can’t say anything about bombs near a facility that performs abortions,’; (2) Defendant Brooks referred to people who protest on behalf of the unborn as ‘fanatics,’; (3) Defendant Gatti told the religious sister who was protesting alongside Thames that ‘You should not be in the position you are in, you’re a disgrace, and (4) Defendant Gatti testified, ‘the comments that were made by her, it’s a very politically religiously charged issue.’”
The officers appealed Steeh’s denial of immunity. Their attorney Douglas Curlew argued Wednesday before a Sixth Circuit panel that the officers were put “between a rock and a hard place” when they decided to arrest Thames.
Curlew argued that immunity exists to protect officers in scenarios identical to the one faced by Brooks and Gatti.
U.S. Circuit Judge John Bush, a Donald Trump appointee, asked whether the credibility of the threat mattered.
“You can’t bandy certain words in a certain context,” the attorney answered.
Curlew went on to say that probable cause is not reliant on the credibility of a threat, and that the officers in this case were informed of the threat by an eyewitness.
“How would the marshals downstairs act [if they received a bomb threat]?” Curlew asked the panel of judges, adding that law enforcement officers “gotta make some tough decisions” and let detectives sort through potential charges after the arrest.
Attorney Robert Muse argued on behalf of Thames, insisting there was no probable cause to arrest his client, especially in light of the actions taken by officers after they arrived at the clinic.
“They did nothing,” the attorney said, as he reminded the panel that no bomb squad was called, and no one was evacuated from the clinic.
Judge Bush asked about the search of Thames’ vehicle, and Muse replied that it was not a “serious” search.
“They were joking about … books she had in her car,” Muse said.
Senior U.S. Circuit Judges Danny Boggs, a Ronald Reagan appointee, and Alice Batchelder, appointed by George H.W. Bush, also sat on the panel.
No timetable has been set for the court’s decision.