UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ WENDELL SHANE MACKEY, │ Plaintiff-Appellant, │ │ v. > No. 22-2165 │ │ JEFF RISING, │ Defendant-Appellee, │ │ │ CITY OF ADRIAN, MICHIGAN; AMERITRUST GROUP, │ INC., │ Respondents. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:20-cv-13408—Nancy G. Edmunds, District Judge.

Argued: October 26, 2023

Decided and Filed: July 1, 2024

Before: MOORE, READLER, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellant. Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellee and Respondents. ON BRIEF: Issa Ghaleb Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellant. Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for Appellee and Respondents. No. 22-2165 Mackey v. Rising, et al. Page 2

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OPINION _________________

MURPHY, Circuit Judge. State employees do not work for the State every hour of the day. They also undertake all sorts of private activities on their own time. Yet the Fourteenth Amendment restricts only the actions of a “State,” and 42 U.S.C. § 1983 grants a remedy only against those who act “under color of” a state law, custom, or the like. So what distinguishes an employee’s state actions that trigger these provisions from the employee’s private actions that do not? The Supreme Court recently addressed this topic in a decision about an employee’s use of social media: Lindke v. Freed, 601 U.S. 187 (2024).

This case allows us to apply Lindke’s guidance. Jeff Rising, a real-estate agent, served one term as a part-time City Commissioner for Adrian, Michigan. Shane Mackey, a local resident, posted information about Rising on Facebook that Rising believed to be false. Rising responded by calling Mackey’s mother. During this call, Mackey alleges, Rising threatened to “hurt” him if he did not delete the post (an allegation that Rising denies). Mackey sued. He argued that Rising’s threat of physical violence violated the First Amendment because Rising made it in his capacity as a Commissioner to stifle Mackey’s speech. Early on in the suit, Rising accepted the City’s insurance to pay for his defense. But he then testified that he had called Mackey’s mother as a private citizen. According to Mackey, Rising’s use of the City’s insurance showed that Rising had waived (or should be judicially estopped from raising) his lack-of-state- action defense.

Mackey is wrong on both fronts. Rising served as a legislator, not a police officer. The City of Adrian thus did not grant him any “authority” to use (or threaten) physical force on its behalf. Id. at 198. And because the