Brian Menge was a detective for the Highland Park Police Department in Michigan. Menge was terminated from employment and subsequently sued the City, resulting in a settlement. On April 3, 2023, at a televised City council meeting, council members discussed Menge and his potential return to City employment. In the video, council member Khursheed Ash-Shafii said that he opposed “bringing back an officer who sued the City. This officer was caught stealing from the forfeiture fund.” Ash-Shafii also stated that “if you watch the police and fire commission meeting about a week and a half ago, you’ll know who it is.” Ash-Shafii said that Menge “was no good then, and no good now” and he was “against bringing him back here.” Mayor Glenda McDonald asked Ash-Shafii if he had any evidence that Menge was stealing from the forfeiture fund, and Ash-Shafii replied, “I have evidence of that. It was given to me by the former administration, if you’d like to have it.” McDonald asked for Ash-Shafii to provide her with the evidence, stating that he was making “an accusation that could get us sued, because you accused a man of stealing without any evidence.” The video segment ended with Ash-Shafii agreeing to provide McDonald evidence to support his statements. Menge asked City council to retract or correct Ash-Shafii’s statement; they refused.
Menge sued the City and each of the council members for retaliating against him in violation of the First Amendment. Menge claimed that Ash-Shafii’s statements were made in response to the lawsuit he filed against the City. The Court determined that Menge failed to state a retaliation claim against the individual council members – apart from Ash-Shafii – because he did not claim that any of them took adverse employment action against him. Menge alleged that only Ash-Shafii made defamatory statements about him, and therefore, there was no basis for his claims against the remaining council members. Notably, Ash-Shafii did not join in the motion to dismiss, and so Menge’s retaliation claim against him was presumably unaffected by this decision.
The Court then considered the City’s motion. Menge asserted several theories of liability for the City regarding First Amendment retaliation. Menge made a Monell claim, by which a municipality can be held liable for the actions of its representatives where (1) a representative violated a federal right of the plaintiff; (2) the representative acted under color of state law; and (3) the municipality’s policy or custom caused the violation to happen. The first two elements were easily met. Menge alleged violations of his federal First Amendment rights by elected City officials at an official meeting. Regarding the third element, Menge argued that the City council’s failure to retract or correct Ash-Shafii’s statements constituted a City policy of inaction, resulting in a violation of his constitutional rights. The Court disagreed, as prior case law required that Menge establish a “clear and persistent pattern of unconstitutional conduct by municipal employees.” Since Menge alleged only a single instance of inaction, he did not state a retaliation claim under this theory. The Court granted the motion to dismiss for all participating Defendants with regard to Menge’s First Amendment retaliation claim.
Menge v. City of Highland Park, Case No. 23-11339, 2024 WL 3220719 (E.D. Mich., 2024).