Executive Summary

Why this case matters

Grady v. Cratsenburg is an important operational case for distinguishing protected recording and criticism from conduct that independently supplies probable cause. It arose at a volatile, late-night shooting scene where officers had established a perimeter around a residence believed to contain the shooter.

Daniel and Shatina Grady approached the scene while recording officers on their phones and questioning police authority. According to the facts accepted for the appeal, they moved within a perimeter officers were attempting to maintain and repeatedly refused orders to back away.

The Gradys were arrested and later prosecuted under Michigan law for assaulting, resisting, or obstructing officers. A jury eventually acquitted them. They then pursued a First Amendment retaliatory-arrest theory, arguing that officers arrested them because they criticized and recorded police while other observers were left alone.

The Sixth Circuit held that probable cause defeated the retaliation claim. The court rejected the Gradys’ reliance on other bystanders because those observers had remained outside the police perimeter and had not refused officers’ commands. They therefore were not similarly situated comparators for the narrow exception recognized in Nieves v. Bartlett.

Core holding

Protected speech or recording does not immunize a person from arrest when independent conduct supplies probable cause. Under Nieves, other non-arrested observers are useful comparators only if they engaged in materially similar arrest-generating conduct.

The Active Shooting Scene

Shortly after midnight on May 26, 2020, the Washtenaw County Sheriff’s Office received a report of shots fired near Peachcrest Street in Ypsilanti Township, Michigan.

Officers traced the investigation to a residence where they believed the shooter had fled. They established what the Sixth Circuit described as a rudimentary perimeter while officers investigated and attempted to secure the scene.

Daniel and Shatina Grady lived nearby. The residence at the center of the investigation belonged to their daughter. They approached officers while recording on their phones and questioned the officers’ authority and conduct.

Unlike other people observing the scene from farther away, the Gradys entered the area officers were attempting to keep clear. Officers repeatedly directed them to back up.

The Gradys did not comply with the commands. After repeated warnings, officers arrested them. The arrests escalated into a physical struggle.

The Gradys were criminally charged under Michigan law, including assaulting, resisting, or obstructing officers. They were later acquitted at trial.

Operational context matters

This was not a passive sidewalk-recording encounter. Officers were responding to a reported shooting shortly after midnight, believed a shooter might be inside a nearby residence, and were attempting to maintain a security perimeter around the investigation.

Recording, Criticism, and Protected Expression

The Gradys recorded officers and verbally challenged their authority. Those activities implicated First Amendment interests.

The Sixth Circuit did not hold that officers were free to arrest people simply because they recorded or criticized police. To the contrary, the court acknowledged that police may not use otherwise lawful arrest authority as a pretext to retaliate against protected expression.

But the presence of protected speech does not remove conduct from ordinary criminal-law analysis. The central question became whether officers had probable cause based on conduct independent of the Gradys’ viewpoint or recording activity.

Doctrinal point

A right to speak, criticize, observe, or potentially record police does not include a right to physically enter a restricted operational area or refuse lawful scene-control commands.

The Police Perimeter and Commands to Back Away

The officers’ commands were tied to an active shooting investigation and the perimeter surrounding the residence where the suspected shooter was believed to have gone.

The Gradys argued that nearby bystanders were also watching officers but were not arrested. The record, however, showed a critical distinction: those people remained well outside the perimeter and did not repeatedly refuse orders to back away.

The Sixth Circuit treated that difference as legally material. The Gradys’ arrests were linked not merely to their presence, criticism, or recording, but to entering the restricted area and refusing commands connected to scene security.

Field rule

When limiting a recorder’s movement, officers should tie commands to an objectively identifiable perimeter, hazard, tactical need, evidence concern, or safety issue. The order should regulate conduct and location—not the recorder’s viewpoint or camera.

Probable Cause and the Retaliatory-Arrest Claim

Under the Supreme Court’s decision in Nieves v. Bartlett, the existence of probable cause generally defeats a First Amendment retaliatory-arrest claim.

The district court had already concluded that officers possessed probable cause to arrest the Gradys for failing to comply with lawful commands during the active investigation.

The Sixth Circuit therefore focused on whether the Gradys could fit within Nieves’s narrow exception for circumstances in which officers typically exercise their discretion not to make arrests, but allegedly arrest a particular person because of protected speech.

Because probable cause existed, the Gradys needed objective evidence showing that similarly situated people who engaged in the same conduct but did not engage in the protected expression were not arrested.

Probable-cause rule

Once probable cause exists for conduct independent of protected expression, a retaliatory-arrest plaintiff ordinarily cannot proceed unless the plaintiff satisfies the narrow Nieves exception or another applicable doctrine.

Why the Nieves Exception Did Not Apply

The Gradys pointed to other observers who were present at the scene, did not criticize police, and were not arrested. The district court regarded those observers as sufficiently similar to allow the retaliation claim to proceed.

The Sixth Circuit disagreed. The comparison must account for the conduct that actually generated probable cause.

The other bystanders remained outside the perimeter and obeyed police commands. The Gradys, by contrast, entered the restricted area and repeatedly refused to back away.

Because the comparators had not engaged in the same arrest-generating behavior, their non-arrest did not provide objective evidence that officers selectively arrested the Gradys because of their protected speech.

The Gradys offered no other objective evidence sufficient to satisfy the Nieves exception. The general rule therefore applied, and probable cause defeated their retaliatory-arrest claim.

Comparator rule

For a Nieves comparison to be meaningful, the proposed comparator must be similarly situated with respect to the conduct giving rise to probable cause—not merely present at the same event.

What Grady Does—and Does Not—Establish

Important limits

Grady does not establish a new Sixth Circuit right to record police.
The principal appellate issue was retaliatory arrest under Nieves v. Bartlett, not whether passive public recording is protected.
The court accepted that recording and criticism can implicate First Amendment interests.
The arrests were supported by probable cause tied to entering an active-scene perimeter and refusing lawful commands.
The case does not authorize officers to create arbitrary perimeters solely to prevent recording.
Other observers were not similarly situated because they stayed outside the perimeter and complied with police directions.
The Gradys’ later acquittal did not retroactively eliminate probable cause existing at the time of arrest.
The decision should be read alongside Sixth Circuit cases addressing whether and when a distinct right to record police is clearly established.

Agency Guidance

1. Separate speech from conductCriticism and recording may be protected. Crossing a lawful perimeter or refusing a lawful safety command is a separate issue.

2. Make the perimeter objectively clearUse barriers, positioning, verbal directions, or other objective indicators so observers understand where they may lawfully remain.

3. Explain the command when feasibleTie movement restrictions to the shooting scene, tactical hazard, evidence area, suspect location, traffic danger, or other legitimate operational need.

4. Do not target the cameraIf similarly situated people are permitted to remain, do not move or arrest one person merely because that person is recording or criticizing officers.

5. Use true comparators consistentlyPeople who engage in the same location-based or obstructive conduct should generally be treated consistently regardless of viewpoint.

6. Document repeated commandsReports and body-camera evidence should preserve the location, wording, timing, warnings, and response to scene-control commands.

7. Do not confuse acquittal with lack of probable causeProbable cause is assessed based on facts known at the time of arrest and is a lower standard than proof beyond a reasonable doubt.

8. Supervisor review should identify the arrest-generating conductBefore approving enforcement against a recorder, identify the specific conduct supporting probable cause independently of speech or recording.

Primary Sources and Further Reading

Published Sixth Circuit opinion: Grady v. Cratsenburg, 170 F.4th 995 (6th Cir. 2026).

Supreme Court retaliatory-arrest framework: Nieves v. Bartlett, 587 U.S. 391 (2019).