## Facts

- Jeffrey Swiecicki attended a Cleveland Indians game at Jacobs Field, loudly cheered and heckled players, and drank two beers.
- Jose Delgado, a City of Cleveland police officer, worked stadium security while off duty but wore a full police uniform, displayed a badge, and carried department-issued weapons.
- Delgado allegedly heard Swiecicki use profanity, told him to stop or leave, and when Swiecicki did not respond, placed him in an “escort position” and began removing him from the bleachers.
- During the removal, Delgado arrested Swiecicki and wrestled him to the ground.
- Swiecicki was charged with disorderly conduct and resisting arrest, convicted in municipal court, and later had the convictions reversed on appeal.

## Issues

1. Whether Delgado acted under color of state law for purposes of 42 U.S.C. § 1983 while working off-duty stadium security in full police uniform.
2. Whether the § 1983 excessive-force claim was time-barred under the proper accrual rule.
3. Whether Delgado was entitled to qualified immunity on claims that Swiecicki was arrested because of protected speech (First Amendment) and without probable cause (Fourth Amendment).
4. Whether summary judgment was proper on the state-law malicious prosecution claim given the reversal of Swiecicki’s criminal convictions.
5. Whether dismissal without prejudice of remaining state-law claims was proper in light of the federal claims’ disposition.

## Decision

- The Sixth Circuit reversed the district court’s grant of summary judgment and remanded.
- The court held that, on the record construed in Swiecicki’s favor, Delgado’s conduct could be found under color of state law.
- The court held the excessive-force claim was not time-barred under the correct accrual analysis.
- The court held qualified immunity was not available at summary judgment because factual disputes could support findings that Delgado arrested Swiecicki based on protected speech and without probable cause.
- The court held summary judgment on the Ohio malicious prosecution claim was improper because the criminal case terminated in Swiecicki’s favor when his convictions were reversed.
- The court left the remaining state-law claims for reconsideration on remand in connection with supplemental jurisdiction.

## Legal Principles

- An off-duty police officer may act under color of state law when using indicia of official authority (e.g., uniform, badge, weapons) and exercising police power.
- A plaintiff can defeat qualified immunity at summary judgment by showing (1) facts that would establish a constitutional violation and (2) that the right was clearly established at the time.
- Arresting an individual based solely on the content of protected speech violates clearly established First Amendment law; profanity and heckling are protected absent recognized exceptions such as fighting words.
- Arrest without probable cause violates clearly established Fourth Amendment law; material disputes about conduct and resistance can preclude summary judgment on probable cause and qualified immunity.
- For § 1983 claims, limitations and accrual are governed by the forum state’s personal-injury limitations period and federal accrual principles; a claim accrues when the plaintiff knew or had reason to know of the injury.
- Under Ohio law, favorable termination is an element of malicious prosecution; reversal of a conviction can satisfy that element.

## Conclusion

The Sixth Circuit reinstated Swiecicki’s federal claims and his Ohio malicious prosecution claim because the record contained material factual disputes about speech-based motive, probable cause, and the circumstances of force, and because the excessive-force claim was timely under proper accrual principles.


Swiecicki v. Delgado, 463 F.3d 489 (6th Cir. 2006)