(CN) – Before being banned from a city pool, a Cincinnati man should have been given the chance to defend himself against allegations that he was lurking and staring at children as they swam, the 6th Circuit ruled.
The court allowed Robert Kennedy to pursue a constitutional claim against the police officer who confiscated his pool pass.
Parents and teachers had complained to David Hudepohl, the Mt. Washington pool supervisor, that they “felt uncomfortable” with Kennedy’s presence at the pool, which is near an elementary school.
Hudepohl told the lifeguards to “keep an eye” on Kennedy. One lifeguard allegedly reported that she “observed [Kennedy] … at the pool watching the kids,” and saw him “trying to … throw a ball with [a boy] or follow him into the woods.”
For “four or five days in a row,” the pool manager said she saw Kennedy “just standing outside the gate watching the pool and looking at the kids.” She described his behavior as “a little bit strange.”
As other lifeguards and children’s parents reported similar complaints, Hudepohl asked police to investigate.
Officer Jeffrey Zucker questioned Kennedy and determined that no crime had been committed, and that Kennedy wasn’t a registered sex offender.
Hudepohl nonetheless decided to ban Kennedy from the pool and surrounding city property, and had Zucker confiscate his pool pass.
Kennedy sued the city, Zucker and Hudepohl in federal court, claiming they violated his constitutional right to move freely on public property. He also accused Hudepohl of defaming him by falsely implying he was a pedophile.
The district court granted summary judgment to the city, but allowed the claims against Zucker and Hudepohl.
On appeal, the Cincinnati-based panel allowed half of the constitutional claims against Zucker to proceed. (Kennedy’s attorney had conceded that his client didn’t allege a sufficient due-process claim against Hudepohl.)
Judge Richard Griffin said Kennedy didn’t have a protectable liberty interest in the $10 city pool token, “but possessed a clearly established constitutionally protected liberty interest not to be banned from all city recreational property without procedural due process.”
The court reversed in part and remanded.