William Fambrough v. City of E. Cleveland, Ohio

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 26a0276p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ WILLIAM FAMBROUGH; LEGACY COMMUNICATIONS, │ LLC, │ Plaintiffs-Appellants, > No. 25-3300 │ │ v. │ │ CITY OF EAST CLEVELAND, OHIO; MICHAEL LEON │ SMEDLEY, in his individual capacity; SCOTT GARDNER, │ Chief of Police, in his individual capacity; JOHN DOES │ I–X, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:22-cv-00992—Bridget Meehan Brennan, District Judge. Argued: February 4, 2026 Decided and Filed: October 1, 2026 Before: KETHLEDGE, Chief Judge; BUSH and NALBANDIAN, Circuit Judges. _________________ COUNSEL ARGUED: Benjamin A. Field, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Kenneth D. Myers, CITY OF EAST CLEVELAND, East Cleveland, Ohio, for Appellees. ON BRIEF: Benjamin A. Field, Caroline Grace Brothers, INSTITUTE FOR JUSTICE, Arlington, Virginia, Jeffrey Rowes, INSTITUTE FOR JUSTICE, Austin, Texas, for Appellants. Kenneth D. Myers, CITY OF EAST CLEVELAND, East Cleveland, Ohio, for Appellees.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 2 _________________ OPINION _________________ NALBANDIAN, Circuit Judge. Sound trucks and the First Amendment. It’s a familiar pairing. And it’s what we have here, a case also implicating the thorny causal inquiries that often emerge in First Amendment retaliation claims. William Fambrough, a politically active resident of East Cleveland, Ohio, alleges that East Cleveland officials retaliated against him for criticizing the City’s administration and campaigning for a mayoral challenger. Fambrough’s primary method of campaigning: broadcasting political messages from his sound truck as he drove around the city. The City’s response: citing him for parking and noise violations, impounding his truck, and prosecuting him for the noise violation. Fambrough brings several claims under 42 U.S.C. § 1983 against the City of East Cleveland, Brandon King (the mayor), Michael Smedley (King’s chief of staff), and Scott Gardner (the police chief). He alleges First Amendment retaliation and prior-restraint claims, a Fourth Amendment unreasonable-seizure claim, and a Fourteenth Amendment selective- enforcement claim. The district court resolved all claims in the defendants’ favor, some at the motion-to-dismiss stage and others at summary judgment. Fambrough now appeals. We revive some of his retaliation claims. At the heart of these claims are the Hartman and Nieves rules requiring that the plaintiff plead and prove the absence of probable cause. Because the district court erred when applying those rules, we reverse its dismissal of the retaliation claims against King and Smedley. But we affirm its grant of summary judgment for Gardner on qualified-immunity grounds, and we vacate its grant of summary judgment for the City to address whether municipal policy directly caused the constitutional violation. We affirm the district court on the other claims. City law sufficiently cabins officials’ permitting discretion. Fambrough forfeited his selective-enforcement claims on appeal. And the impoundment of Fambrough’s sound truck, which served a community-caretaking function and was carried out in accordance with standardized criteria, was a reasonable seizure.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 3 I. This is a fact-intensive case with a record revealing hazy memories and many factual contradictions among the defendants. Because Fambrough is challenging the district court’s resolution of the motions to dismiss and motions for summary judgment against him, and because we won’t be granting Fambrough summary judgment on any claims, we’ll describe the disputed facts in the light most favorable to Fambrough. See Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Fambrough has lived in the City of East Cleveland, Ohio since 2006 and has been active in local politics. He has run for office and supported the political campaigns of others. As part of his political advocacy, he has used a step van (registered to his company and the other plaintiff in this case, Legacy Communications, LLC) as a sound truck, equipping it with speakers to play pre-recorded political messages as he drives it around the city. He regularly parked a sound truck in his driveway between 2006 and 2021 without any issues. And his active participation in local politics made him a known quantity. City officials, including mayor Brandon King and his chief of staff, Michael Smedley, had for years known about Fambrough’s recurrent use of a sound truck for political advocacy. In spring 2021, City Councilor Juanita Gowdy decided to challenge King in the upcoming mayoral primary set for September. Fambrough and Gowdy had been friends and political allies since 2019, both part of a group referred to by some in the City’s administration as “dissidents” because of their criticism of the King administration. So Fambrough threw himself into helping Gowdy’s campaign—a decision that put him back on City officials’ radar. Later that spring, King says he received a phone call from a resident who complained about Fambrough’s sound truck and someone else’s box truck being parked in a residential area. So King sent the complaint downstream, telling either Smedley or someone in the police department to handle it. Scott Gardner, the City’s police chief, recalls a meeting during this time between himself, police captain Kenneth Lundy, and the City’s law department. Gardner went to the law department to seek guidance on enforcing Section 351.11 of the East Cleveland Code of Ordinances (E.C.C.O.) given that it was rarely enforced, and he was concerned about selectively  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 4 enforcing it against Fambrough. In fact, City records show that since 2018 (as far back as the City’s produced records go), it had enforced § 351.11 (the Parking Ordinance) by issuing a citation only four times before enforcing it against Fambrough. The Parking Ordinance, passed in 1998, provides that “[n]o person shall park a truck, commercial tractor, trailer, semi-trailer, a motor home or recreational vehicle on a roadway or driveway at any time in front of or alongside property used for residential purposes except in case of a breakdown of such vehicle, or for loading and unloading purposes.” E.C.C.O. § 351.11.1 Willa Hemmons, the City’s law director, told Gardner it was fine to enforce the ordinance. Hemmons also “was immediately aware that [Gardner’s] inquiry was connected to Mr. Fambrough’s truck, even before [Gardner] mentioned him,” and recited the ordinance from memory. R.104-6, Gardner Decl., PageID 3440. On May 14, Smedley sent a text message in a group chat with Gardner and police commander Larry McDonald asking if the “box truck” had been dealt with; McDonald responded, “[h]aving it checked now.” R.104-21, Ex. 15, PageID 3919. That day, City police officer Mark Allen went to Fambrough’s home and cautioned him that parking his sound truck in his driveway violated the Parking Ordinance. Allen let Fambrough off with a warning, telling him he had three days to move the truck or else it might be towed. Three days later, McDonald told Allen to return to Fambrough’s home and deliver a letter with Gardner’s signature that contained just the text of the Parking Ordinance. Allen returned to Fambrough’s home, this time with a light-duty tow truck. Fambrough’s truck was still parked in his driveway. Allen handed him the letter and tried to tow Fambrough’s truck, but the tow truck couldn’t get the job done. So Allen allowed Fambrough to move his truck, and Fambrough parked it one hour outside the city. Fambrough wanted to use his truck to support Gowdy’s campaign. But E.C.C.O. § 509.15 (the Noise Ordinance) prohibited playing sound systems on public roads “in a manner or at a volume as to disturb the quiet, comfort or repose of other persons” without “a valid 1“Truck” is defined as “[e]very motor vehicle . . . designed and used to carry property,” E.C.C.O. § 301.01, which, as acknowledged by Captain Lundy, includes pickup trucks. So apparently you can’t park your Ford F-150 or Toyota Tacoma in your own driveway in East Cleveland.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 5 permit.”2 And to receive a valid permit, Fambrough had to comply with the process set forth in E.C.C.O. § 311.02 (the Permit Ordinance).3 The process required submitting an application, 2Violating the Noise Ordinance is a criminal misdemeanor. See E.C.C.O. §§ 501.99, 509.99. The Noise Ordinance provides in relevant part: “(a) No person shall play any radio, music player such as a ‘boom box’, tape cassette, disc player or television, audio system or musical instrument, or any other type of sound service upon any public road, street, highway or private property in this municipality in a manner or at a volume as to disturb the quiet, comfort or repose of other persons. An exception is made for organized events which have received a valid permit from the city as set forth in § 311.02 and any other applicable section. ... (c) In addition to the penalty as set forth in § 509.99, the following additional penalty applies[: a $100 fine for first offense, $200 fine for second offense, and $300 fine and three days in jail for third or subsequent offense.] (d) Upon conviction for a violation of this section, the sound device used during the commission of the offense shall be subject to seizure and payment of a judgment.” 3Violating the Permit Ordinance is a criminal misdemeanor. See E.C.C.O. § 303.99. The Permit Ordinance provides in relevant part: “(a) Permit required. No person or persons shall parade or hold a procession, or attempt to parade or hold a procession, in or upon any of the streets, park or public grounds of the city without first obtaining a permit therefor. ... (c) Permit issuance and approval. Any person or persons desiring to parade or hold a procession in or upon any street, park or public ground of the city for any purpose whatsoever shall . . . obtain from the Mayor a permit therefor, which shall be issued only upon and after the approval by the Chief of Police and the Mayor. (d) Form of application. Each application for a permit shall be made out in duplicate. Each copy shall be signed by the applicant and shall be in such form as the Mayor shall prescribe. Such application shall be filed with the Mayor at least five days prior to the date upon which the parade is to be held. (e) [$1 permit application fee] (f) Form of permit. Each permit . . . shall be in such form as the Mayor shall prescribe. (g) Permit refusal or revocation. The Mayor may refuse to issue a parade permit if the applicant or group or organization or persons represented by the applicant, shall have previously violated provisions of a similar permit, or shall have violated any city ordinance or laws of the state or of the United States in connection with a previous parade or procession held within the city. The Mayor may also refuse to issue a parade permit if: (1) The time, place, size or conduct of the parade including the assembly areas and route of march would unreasonably interfere with the public convenience and safe use of the streets and highways. (2) The parade would require the diversion of so great a number of police officers to properly police the line of movement, assembly area and areas contiguous thereto so as to deny normal police protection to the municipality.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 6 subject to the mayor’s and police chief’s approval based on the ordinance’s criteria. E.C.C.O. § 311.02. So Fambrough went to city hall on June 28 to get a sound-device permit. King’s assistant gave him an unsigned permit application form, which contained signature lines for the mayor and police chief, and directed him to obtain Gardner’s signature—Fambrough understood this to mean that King’s approval was implied. That same day, Fambrough obtained Gardner’s signature. But no one ever told Fambrough that he still needed King’s signature. And in any event, he didn’t pay the required $1 fee. See E.C.C.O. § 311.02(e). From June 28 until August, Fambrough used his sound truck to campaign for Gowdy once or twice a week, sometimes being joined by other cars to form a caravan while his truck broadcast messages. He describes his sound truck as the centerpiece of Gowdy’s campaign. And he would broadcast messages like, “It’s time for a change, elect Juanita Gowdy,” or “No more lying, no more stealing.” During his drives around the city, he regularly encountered police officers without incident; they didn’t stop him or tell him that his broadcasting was too loud. And, because of Officer Allen’s May visit, he parked the truck no more than a few hours in his driveway on days he was campaigning, then returned it to a parking spot one hour away. During Gowdy’s campaign, Smedley regularly called Gardner to discuss Fambrough’s campaigning efforts and “implied that he wanted [Gardner] and the police department to do something to stop Mr. Fambrough.” R.104-6, PageID 3438. Gardner estimated that he received 15 to 20 such calls, sometimes with Smedley providing updates on the specific location of Fambrough’s truck. Smedley also told Captain Lundy to enforce the Noise and Parking Ordinances against Fambrough. So on July 27, after Fambrough had used his truck for Gowdy’s (3) The parade route of march or assembly areas would unreasonably interfere with the movement of police vehicles, firefighting equipment or ambulance service to other areas of the municipality. (4) The parade would unreasonably interfere with another parade for which a permit has been issued. (5) The information contained in the application is found to be false, misleading or incomplete in any material detail. (6) An emergency such as a fire or storm would prevent the proper conduct of the parade.”  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 7 campaign at least four times, Gardner—at Smedley’s insistence—had Captain Lundy and Officer Allen go to Fambrough’s home to tell him that he needed a permit to continue using his sound truck. And potential enforcement actions against Fambrough were a topic of discussion in several city cabinet meetings attended by King, Smedley, Gardner, Hemmons, and assistant law director Heather McCollough. All the attention City officials gave Fambrough struck Gardner as unusual. The mayor’s office wasn’t this attentive even in homicide cases. And considering that the City had around only 50 police officers at the time and had “serious crime problems,” Gardner thought it was odd to devote this much attention to permitting and parking issues. Id. at PageID 3442. According to King and Smedley, their focus on Fambrough stemmed from several noise complaints they’d received about Fambrough’s truck. These complaints were made personally to King and Smedley, and they talked to each other about the complaints. Typically, the East Cleveland Police Department (ECPD) created a data trail in the computer-aided dispatch (CAD) system when residents called in complaints to the police and when officers were dispatched, arrived on scene, cleared a scene, or initiated an action (like a citation or traffic stop) on their own. But because King and Smedley received the complaints directly, there’s no guarantee the complaints were logged in the CAD system. King can’t recall specifics about any complaints relevant to the Gowdy campaign—all the complaints he recalls in any detail had occurred earlier. But Smedley recalls one person by name who had called him to complain. Gardner spoke to the same person, who complained about the content of Fambrough’s messages and told Gardner that the messages were “obscene.” R.104-8, Gardner Dep., PageID 3541. Gardner also says he saw other noise complaints against Fambrough in the CAD system. But in response to Fambrough’s public-records request, the City failed to produce any evidence that the complaints were ever logged in the CAD system. Events came to a head in August. On August 9, Smedley called Gardner. Smedley was “extremely upset” and cursed at Gardner for being “incompetent” and failing to “take care of” Fambrough’s truck. R.104-6, PageID 3442. So he told Gardner he wanted the “utmost enforcement as possible.” R.104-8, PageID 3540.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 8 That same day, Gardner sent the following email to the entire ECPD: Please be advised that there is a vehicle with loudspeakers that are [sic] broadcasting political messages. I am getting an influx of complaints from the residents of the Forest Hills area. Please, find this vehicle and tow it. Cite the operator with disturbing the peace and loud music. Please contact me as soon as this is complete to claim a surprise. R.104-22, Ex. 16, PageID 3921. Officers were also instructed at a daily briefing to ticket and tow Fambrough’s truck. And Captain Lundy issued a directive, typically reserved for serious crimes, to officers to be on the lookout for Fambrough’s truck. Acting on these directions, Officers Majercik and Wood located Fambrough’s truck parked on the street outside his home on the afternoon of August 18. When the officers arrived, they didn’t see anybody there. But Fambrough’s daughter alerted Fambrough that the police were there with a tow truck, so Fambrough went to speak with the officers. Soon after, Gowdy and around ten others arrived at Fambrough’s home. Around five other officers also stopped by the scene at various points in time. Wood told Fambrough that his van was parked illegally under the Parking Ordinance and issued him a citation. Wood also told Fambrough that his van would be towed. Fambrough protested along with others, including Gowdy, Gowdy’s campaign manager, and Fambrough’s daughter. They offered to drive the van away or remove the expensive sound equipment from the van, but the police refused. Around this time, Majercik radioed Gardner to tell him that they’d located Fambrough’s truck. Gardner told him to issue Fambrough a noise citation, referencing five complaints they’d received and that he says he saw in the CAD system. Fambrough “tried to show” Majercik his sound device permit, but Majercik said, “this is coming from the brass.” R.104-2, Fambrough Decl., PageID 3377. So Majercik issued Fambrough a misdemeanor citation for violating the Noise Ordinance. The tow company began to tow Fambrough’s truck, which was in fine working condition at the time. Fambrough could see that they were damaging it and objected, but to no avail. The tow crew finished the job and drove off. The next day, Fambrough retrieved his truck from the  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 9 impound lot after paying an $80 fee to the City and $448 to the towing company. But the truck had received roughly $6,000 in damage: The ignition no longer turned over, and the exhaust system was in pieces—some parts hanging, others fallen off completely. The truck sat inoperable for the rest of the campaign. Assistant law director McCollough handled the prosecution against Fambrough for violating the Noise Ordinance. When deciding that the prosecution should go forward, McCollough based her decision on the noise complaints in the CAD system, complaints made directly to the mayor’s office, and a complaint from her executive assistant. Her executive assistant had told McCollough that she heard Fambrough’s “really loud” broadcasts occurring late at night from her “high-rise apartment building.” R.104-15, McCollough Dep., PageID 3767, 3788. But because it was a minor noise violation, McCollough didn’t gather any other evidence. In September, Fambrough’s attorney and McCollough had a phone call to discuss resolving the citation before the court hearing. McCollough told Fambrough’s attorney that though her office was typically willing to resolve minor issues like noise complaints, they would treat Fambrough differently. She wasn’t inclined to resolve the matter favorably with him because he needed to “stand down.” R.104-5, Robinson Decl., PageID 3434. Why did McCollough want him to stand down? Well, she gave the following reasons on the call: Fambrough making complaints about the ECPD, making public records requests, asking for a copy of the City’s charter, and inquiring about election ordinances. And though she conveyed her “concern[]” about Fambrough’s involvement in Gowdy’s mayoral candidacy, she thought a deal possible now that King had won reelection. Id. Two days later at the court hearing, McCollough told Fambrough and his attorney that she couldn’t guarantee lenient treatment in the future if he continued to “cause problems ‘downtown.’” Id. at PageID 3435. She told Fambrough that he shouldn’t expect any favors if he makes himself an “annoyance” by constantly making complaints and public records requests. R.104-15, PageID 3774. In the face of McCollough’s threats, Fambrough agreed to a plea of no contest to a reduced charge of disorderly conduct and paid $99 in fees and court costs. As they  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 10 were leaving the courtroom, McCollough told Fambrough “to watch himself and mind his own business going forward.” R.104-5, PageID 3436. B. Fambrough’s operative complaint brings five counts against the City and over ten individual defendants under 42 U.S.C. § 1983. On appeal, Fambrough seeks to revive some claims against only King, Smedley, Gardner (the Individual Defendants), and the City. So we’ll limit our discussion to those claims. Count One is a First Amendment retaliation claim against the Individual Defendants. Fambrough alleges that each either directed or ratified the decisions of others to retaliate by ordering police officers to enforce the Parking and Noise Ordinances against him, with the reason for the retaliation being Fambrough’s support for Gowdy and criticism of the City. And Count Two is a First Amendment retaliation claim against the City, which mirrors Count One and alleges that the retaliation was the City’s official policy with the Individual Defendants as some of the relevant policymakers. Count Three is a First Amendment prior-restraint claim against the City. Fambrough alleges that the Noise and Permit Ordinances together operate as an unconstitutional prior restraint because the Permit Ordinance vests unduly broad discretion in the mayor and police chief. Count Four is a Fourteenth Amendment selective-enforcement claim against the Individual Defendants and the City for enforcing the Parking and Noise Ordinances against Fambrough. And Count Five is a Fourth Amendment unreasonable-seizure claim against the City based on the August impoundment of Fambrough’s truck. At the motion-to-dismiss stage, the district court dismissed Count One against King and Smedley and Count Four against King. Then after discovery and cross-motions for summary judgment, the court resolved the remainder of the claims in favor of the City, Smedley, and  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 11 Gardner. Fambrough now appeals, asking us to reverse the district court’s motion-to-dismiss and summary-judgment rulings.4 II. We review the district court’s dismissal and summary-judgment grant de novo. Wilson v. Gregory, 3 F.4th 844, 855 (6th Cir. 2021); Luis v. Zang, 833 F.3d 619, 625 (6th Cir. 2016). The district court dismissed the retaliation claims (Count One) against King and Smedley and the selective-enforcement claim (Count Four) against King. In reviewing those dismissals, we “accept the complaint’s well-pleaded factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor.” Zang, 833 F.3d at 626. A complaint can overcome a Rule 12(b)(6) motion only when it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). And even though the parties completed discovery, we limit our review to “the complaint itself” because “we cannot decide that a complaint was worthy of proceeding to discovery against one party by considering evidence uncovered during discovery against another.” Agema v. City of Allegan, 826 F.3d 326, 332 (6th Cir. 2016). The district court resolved all other claims on summary judgment, so a different standard applies to those claims. The central issue at summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary judgment is proper only if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When the nonmoving party presents evidence genuinely disputing the movant’s evidence, the court must accept the nonmoving party’s evidence as true. See Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir. 2010). And the court must draw reasonable inferences from the facts 4The defendants argue that Fambrough forfeited his claims against the Individual Defendants because Fambrough’s opening brief doesn’t distinguish between their potential liability, instead discussing them as a whole. But that’s an overstatement. Fambrough divides his arguments on the Individual Defendants’ liability between claims that the district court resolved on the pleadings and those it resolved at summary judgment. And when addressing the claims against King and Smedley, to the extent Fambrough fails to distinguish between them he does so only because the district court applied the same legal reasoning to both. So we don’t find forfeiture on the defendants’ desired basis.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 12 in the nonmoving party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007). If, after viewing the evidence in the light most favorable to the nonmoving party, a reasonable jury still couldn’t return a verdict for the nonmoving party, then the movant is entitled to summary judgment. See Anderson, 477 U.S. at 248. For the retaliation claims, the Individual Defendants assert qualified immunity as a defense. To overcome this defense, Fambrough must show that (1) the Individual Defendants violated a federal statutory or constitutional right and (2) the unlawfulness of their conduct was clearly established at the time. District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018). As against King and Smedley, Fambrough’s burden is “not high at the 12(b)(6) stage: Reading the complaint in the light most favorable to the plaintiff, it need only be ‘plausible’ that an official’s acts violated a clearly established constitutional right.” MacIntosh v. Clous, 69 F.4th 309, 315 (6th Cir. 2023). The unlawfulness of conduct is clearly established when, “at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation modified) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This generally means that the plaintiff must “identify a case where an officer acting under similar circumstances was held to have violated” the law. City of Escondido v. Emmons, 586 U.S. 38, 43 (2019) (per curiam) (quoting Wesby, 583 U.S. at 64). So “general propositions of law are generally (though not always) insufficient to clearly establish a right,” Rhodes v. Michigan, 10 F.4th 665, 679 (6th Cir. 2021), because “abstract legal principles” typically don’t put the legality of the official’s conduct “beyond debate in the particular circumstances before him,” Novak v. City of Parma (Novak I), 932 F.3d 421, 426 (6th Cir. 2019) (citation modified). But Fambrough need not point to a case “on all fours with the instant fact pattern to form the basis of a clearly established right.” Vanderhoef v. Dixon, 938 F.3d 271, 278 (6th Cir. 2019) (citation modified). What matters is whether “every reasonable official would interpret [then-existing precedent] to establish the particular rule the plaintiff seeks to apply.” Wesby, 583 U.S. at 63.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 13 III. A. We’ll start with Fambrough’s First Amendment retaliation claims, which he seeks to revive against the Individual Defendants and the City. In a First Amendment retaliation claim, the plaintiff must prove that (1) he engaged in activity protected by the First Amendment; (2) the defendant caused the plaintiff to be subjected to an adverse action that would likely deter a person of ordinary firmness from continuing his protected activity; and (3) the defendant’s decision to subject the plaintiff to that adverse action was motivated, at least in part, by the plaintiff’s protected activity. Novak I, 932 F.3d at 427; see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). 1. The defendants don’t dispute that Fambrough has satisfied the first two elements. In other words, they don’t dispute that the First Amendment protects Fambrough’s political speech and that the actions taken against him were sufficiently adverse. Instead, Fambrough’s retaliation claims turn on the third element. Generally, the Mt. Healthy test governs the third element. Nieves v. Bartlett, 587 U.S. 391, 404 (2019); Thaddeus-X, 175 F.3d at 399; see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–87 (1977). This test requires the plaintiff to first show that his protected conduct was a substantial or motivating factor in the defendant’s decision to cause the adverse action. Frenchko v. Monroe, 160 F.4th 784, 803 (6th Cir. 2025). Then the burden shifts to the defendant, who must show that he would’ve made the same decision in the absence of the plaintiff’s protected conduct. See id. (quoting Mt. Healthy, 429 U.S. at 287). “[I]f the same decision would have been reached absent [the plaintiff’s] protected speech,” there was no retaliation. Nieves, 587 U.S. 391 at 399 (internal quotations omitted) (quoting Mt. Healthy, 429 U.S. at 285). But the type of adverse action affects how we analyze the third element and whether the Mt. Healthy test governs. Fambrough bases his retaliation claims on four adverse actions:  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 14 the parking citation; his truck’s impoundment; the noise citation; and the noise prosecution. How we characterize these adverse actions is central to what Fambrough must prove to recover on his retaliation claims. That’s because the Supreme Court, in Hartman and Nieves, has said that when the adverse action is a prosecution or arrest, a plaintiff must plead and prove the absence of probable cause supporting the prosecution or arrest. Nieves, 587 U.S. at 402 (arrests); Hartman v. Moore, 547 U.S. 250, 265–66 (2006) (prosecutions). Though the Hartman and Nieves no-probable- cause rules both burden plaintiffs with the same obligation, they differ in that the Supreme Court has recognized two exceptions to the no-probable-cause rule only for retaliatory arrests. See, e.g., Petsche v. Hruby, 172 F.4th 475, 484 (6th Cir. 2026); Brown v. City of Albion, 136 F.4th 331, 338 (6th Cir. 2025). And Fambrough doesn’t argue for an extension of the retaliatory-arrest exceptions to retaliatory prosecutions. First, the Nieves exception. Under this exception, the Nieves no-probable-cause rule doesn’t apply in “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” like with jaywalking, and the plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves, 587 U.S. at 406–07. In such circumstances, probable cause would do “little to prove or disprove the causal connection between animus and injury.” Id. at 407. And though the exception is a “slim” one, evidence outside of “virtually identical and identifiable comparators” can suffice. Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (per curiam). Second, the Lozman exception. This exception states that if the plaintiff presents objective evidence of a premeditated municipal policy to retaliate or intimidate the plaintiff by arresting him for conduct unrelated to his protected activity, then the Nieves no-probable-cause rule doesn’t apply. Lozman v. City of Riviera Beach, 585 U.S. 87, 99–101 (2018); City of Albion, 136 F.4th at 338. And as we’ve held, when a plaintiff sues both individual officers and a municipality, this exception is available only for official-capacity claims or claims against the municipality. Frenchko, 160 F.4th at 803; Novak I, 932 F.3d at 429.  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 15 If the plaintiff doesn’t show the absence of probable cause—or, for retaliatory-arrest claims, meet one of the exceptions—then the claim fails. See Lozman, 585 U.S. at 97. But if the plaintiff can show the lack of probable cause or meet an exception, then the default Mt. Healthy test governs the third element of the retaliation claim as usual. Id. 2. The parties disagree on whether the Hartman or Nieves no-probable-cause rules apply to the adverse actions in this case. Fambrough says that neither rule applies; his claim is just an application of Mt. Healthy. And the defendants say that the Hartman rule governs because it applies broadly to “law enforcement situations” not involving arrests. Appellee Br. at 15. But neither view is correct. i. In resolving this disagreement, we’ll start with the citation and prosecution under the Noise Ordinance. McCollough’s decision to prosecute the noise violation is firmly in Hartman territory. So the Hartman no-probable-cause rule applies to that adverse action, without the availability of exceptions. But the noise citation is an adverse action independent of the prosecutor’s decision to pursue charges. Though, in this case, the noise citation was paired with a prosecution, that won’t happen in every case. A local prosecutor’s first involvement with a citation might be to dismiss it. But, in the meantime, the plaintiff is sufficiently deterred from continuing to engage in his protected conduct. See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (making a traffic stop and issuing a ticket is an adverse action); Thaddeus-X, 175 F.3d at 398 (only actions that are “de minimis” or “inconsequential” fail to rise to the level of an adverse action). The facts here—officers cited Fambrough during the heat of an election, but the citation wasn’t resolved until after the election—show why a defendant might stand to gain from just a citation, only to have it later dismissed. We’ve applied a no-probable-cause rule to criminal citations, but we haven’t clearly answered whether it’s the Hartman or Nieves version that governs. In Hall v. Navarre, the  No. 25-3300 Fambrough v. City of E. Cleveland, Ohio Page 16 police arrested and cited the plaintiff for two criminal offenses, disorderly conduct and disobeying an officer’s lawful order. 118 F.4th 749, 753 (6th Cir. 2024). The charges against the plaintiff were later dismissed. Id. For the plaintiff’s retaliation claim against the officer who had issued the citation (but who hadn’t arrested the plaintiff), we described the adverse action as “issuing the citation” and applied the no-probable-cause rule to the claim without specifying whether we were applying Hartman or Nieves. Id. at 759; see also Watson v. Boyd, 119 F.4th 539, 550–55 (8th Cir. 2024) (applying Nieves to evaluate whether the arresting officer had probable cause for five of the nine citations he had issued). In this case, we think that the Nieves, not the Hartman, version of the rule applies to the noise citation. In the respect that matters here—how the action affects the causal inquiry, Nieves, 587 U.S. at 399–402—issuing a citation is more like an arrest than a prosecutor’s decision to bring charges. Like arrests, no prosecutor was necessarily involved. Hartman imposed the no- probable-cause rule to retaliatory prosecutions based on the “longstanding presumption of regularity accorded to prosec