Introduction

This appeal arises at the intersection of First Amendment access claims, public recording disputes, and qualified immunity doctrine in the unique context of a state tax tribunal’s adjudicatory proceedings. Christopher Hicks, a frequent attendee who insisted on recording proceedings, was removed from two Ohio Board of Tax Appeals hearings following disruptions and, days later, was indefinitely banned from attending adjudicatory hearings as a member of the public. Hicks sued under 42 U.S.C. § 1983, alleging that the ban and related restrictions violated his First and Fourteenth Amendment rights.

The district court granted Hicks partial summary judgment against individual Board officials—Executive Director Kathleen Crowley and Board members David R. Harbarger (Chair), Jasmine Clements (Vice Chair), and Jeffrey Caswell—rejecting their qualified-immunity defense as to the indefinite ban. On interlocutory appeal, the Sixth Circuit reversed. The court held that, as of December 9, 2021 (the date of the ban), the unlawfulness of banning Hicks from other people’s quasi-judicial administrative tax hearings was not clearly established. The panel intentionally did not decide whether a constitutional right was actually violated; it resolved the case solely on the “clearly established” prong of qualified immunity.

The decision signals a stringent insistence on context-specific precedent for overcoming qualified immunity when public access to administrative adjudications is at stake, and it narrows the path for damages liability in similar disputes even where injunctive relief may remain viable.

Summary of the Opinion

• Narrow question on appeal: The panel considered only whether the Board officials’ conduct (issuing an indefinite ban on Hicks’s public attendance at adjudicatory hearings) was “clearly unlawful” as of December 9, 2021. The court did not address whether any constitutional right was actually violated.
• Qualified immunity framework: Qualified immunity shields officials unless (1) they violated a federal right and (2) the unlawfulness was clearly established at the time. The parties limited the appeal to the second prong.
• Holding: Hicks failed to identify controlling authority or a robust consensus of persuasive authority establishing a clearly established right to attend others’ quasi-judicial administrative tax hearings. District-court decisions (especially unpublished ones) are insufficient; one out-of-circuit court of appeals decision is too thin to establish a right for Sixth Circuit purposes.
• Context matters: Even if some access rights exist for government meetings or judicial proceedings, Hicks did not show that those cases address the specific setting here—public access to adjudicatory hearings of a state tax appeals board, where privacy interests and quasi-judicial functions may differ materially from legislative meetings or traditional judicial proceedings.
• Result: Reversal of the district court’s denial of qualified immunity to the individual Board officials as to the ban. The Sixth Circuit expressly left open whether a constitutional violation occurred and did not disturb other parts of the district court’s rulings not before it.

Background and Procedural History

The Ohio Board of Tax Appeals adjudicates state tax disputes. It generally opens both its nonadjudicatory “business” meetings and adjudicatory hearings to the public but subjects adjudicatory hearings to a no-recording rule due to potential discussion of private information. The Board instead permits note-taking and post-proceeding audio or transcript requests.

• October 20, 2021: Hicks, appearing as a party, recorded despite the hearing officer’s instruction to stop. The hearing was canceled and not rescheduled.
• December 2, 2021: Hicks attempted to attend and record hearings as a member of the public. The hearings were being held virtually. After being directed to dial in, he announced he was recording; when he refused to stop, the Board staff canceled the meeting.
• December 6, 2021: Hicks entered an ongoing hearing, approached the bench, and disputed the no-recording rule. The transcript shows the hearing officer repeatedly asked him to step away; state troopers escorted him out and the Board recessed.
• December 9, 2021: The Board issued an indefinite ban on Hicks’s attendance at adjudicatory hearings as a member of the public. The ban did not extend to business meetings and did not bar him from hearings when he appeared as a party.

Hicks sued the Board and its officials under § 1983, alleging First and Fourteenth Amendment violations, including access and recording restrictions, lack of process for the ban, and retaliation. The district court dismissed the Board itself (not a “person” under § 1983), granted summary judgment to the members on pre-ban actions, but ruled for Hicks on the permanent ban and rejected qualified immunity for the officials in their personal capacities. The officials appealed the denial of qualified immunity.

Detailed Analysis

Precedents and Authorities the Panel Relied On

• District of Columbia v. Wesby, 583 U.S. 48 (2018): Qualified immunity protects officials unless the legal principle is “clearly established” and sufficiently specific such that “every reasonable official” would understand the conduct to be unlawful in the particular circumstances. The opinion applies Wesby’s insistence on context and specificity.
• Ashcroft v. al-Kidd, 563 U.S. 731 (2011): A right is clearly established only if prior decisions have placed the constitutional question “beyond debate.” The panel quotes and applies this formulation.
• Hidden Village, LLC v. City of Lakewood, 734 F.3d 519 (6th Cir. 2013): The plaintiff must point to controlling authority or a robust consensus of persuasive authority to defeat qualified immunity. The panel uses this as the Sixth Circuit framing of al-Kidd.
• Ohio Civil Service Employees Ass’n v. Seiter, 858 F.2d 1171 (6th Cir. 1988): A “mere handful” of decisions from other courts cannot create a clearly established right in the Sixth Circuit.
• Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011): Many courts of appeals do not treat district-court decisions as capable of clearly establishing federal law for qualified immunity purposes.
• Bell v. City of Southfield, 37 F.4th 362 (6th Cir. 2022): The plaintiff bears the burden of defeating qualified immunity; unpublished district-court opinions “do not clearly establish anything.”
• Stewart v. City of Euclid, 970 F.3d 667 (6th Cir. 2020), and Eugene D. ex rel. Olivia D. v. Karman, 889 F.2d 701 (6th Cir. 1989): One or two out-of-circuit cases are insufficient to amount to a “robust consensus” in the Sixth Circuit.
• Trump v. CASA, Inc., 606 U.S. 831, 858 n.17 (2025): Quoted for the proposition that district-court opinions lack precedential force even within the same district. The panel uses this to discount reliance on district-court decisions.
• United States v. Kincaide, 119 F.4th 1074 (6th Cir. 2024), and Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986): When assessing a claimed public right of access to proceedings, courts consider (1) historical openness and (2) whether openness plays a positive role in the functioning of the process—the “experience and logic” test. The panel invokes this framework to highlight that Hicks’s authorities did not address the specific type of proceeding at issue.

The Court’s Legal Reasoning

1. Scope of review and burden: Reviewing de novo, and viewing the evidence in the light most favorable to the officials, the court emphasized that Hicks bore the burden to show that the ban’s unlawfulness was clearly established on December 9, 2021.
2. No controlling authority: Hicks cited no Supreme Court or Sixth Circuit case recognizing a public First Amendment right to attend other people’s quasi-judicial tax adjudications, nor a due process entitlement governing bans from such hearings. The district court likewise relied on non-controlling authority.
3. No robust consensus: Hicks offered seven decisions scattered across jurisdictions—six district-court decisions (three unpublished) and one out-of-circuit court of appeals decision. Under Sixth Circuit law, that “mere handful” does not amount to a robust consensus capable of clearly establishing a right. Unpublished district-court decisions “do not clearly establish anything,” and even published district-court opinions lack precedential force to do the work that clearly established law requires.
4. Right defined at the proper level of specificity: Even crediting some generalized access principles, Hicks failed to show precedent addressing the specific right he asserted: public attendance at other people’s quasi-judicial state tax hearings. Many of his authorities concerned school boards, legislatures, or city councils (legislative or limited-public-forum settings) or general courthouse access. Those contexts do not map neatly onto administrative, case-specific tax adjudications that may involve confidential information and different institutional roles. Under Wesby and al-Kidd, the right must be particularized; general statements about access or recording in different forums are not enough.
5. Experience-and-logic framework: The panel referenced the Press-Enterprise/Kincaide test to underscore that Hicks had not anchored his access claim in the relevant doctrinal inquiry: historical openness and functional benefits of public access to the specific kind of proceeding. Without cases applying that test to comparable administrative tax adjudications, the unlawfulness of the ban could not be “beyond debate.”
6. Conclusion: Because Hicks did not marshal controlling authority or a robust consensus addressing the specific setting, the officials were entitled to qualified immunity on the damages claim arising from the indefinite ban.

Impact and Implications

Although nonprecedential, the opinion meaningfully influences practice in at least five ways:

• Heightened specificity for access claims against administrative tribunals: Plaintiffs must tie asserted public access rights to the precise proceeding type—here, quasi-judicial tax adjudications—and ideally through Supreme Court or Sixth Circuit precedent applying the Press-Enterprise “experience and logic” test. Legislative-meeting cases or general courthouse-access decisions likely will not suffice.
• Limited value of district-court authority for clearly established law: Within the Sixth Circuit, district-court opinions (especially unpublished ones) and one-off out-of-circuit appellate decisions will generally be inadequate to defeat qualified immunity.
• Qualified immunity shields damages, not necessarily injunctive relief: The reversal concerns personal-capacity damages only. Even if officials are immune from damages, plaintiffs may still pursue prospective relief in official-capacity suits (subject to sovereign immunity doctrines not discussed here). Practitioners should calibrate litigation strategies accordingly.
• Administrative agencies can maintain orderly proceedings: Agencies with reasonable no-recording rules and decorum requirements—particularly where sensitive information may be discussed—retain significant leeway, at least absent controlling authority to the contrary. Still, agencies should build clear, content-neutral policies and provide fair process before imposing bans to minimize constitutional risk.
• Developing the “experience and logic” record matters: Future litigants seeking public access to administrative adjudications should marshal historical evidence of openness and expert testimony or legislative materials showing how public attendance positively contributes to the adjudicative function in the specific field.

Practical Takeaways for Agencies and Litigants

• For agencies:
  • Adopt written, content-neutral time/place/manner rules for adjudicatory hearings, including clear no-recording provisions when sensitive information is likely to be discussed.
  • Provide alternative access mechanisms (e.g., note-taking, post-hearing audio or transcripts) and make those pathways public and predictable.
  • Use calibrated responses before imposing bans (warnings, temporary suspensions, and an appeals process), and document disruptions thoroughly.
  • When banning an individual, define scope and duration, articulate reasons tied to disruption or rule violations, and offer a process for review or reinstatement to mitigate due process concerns.
• For plaintiffs:
  • To overcome qualified immunity, gather controlling authority (Supreme Court or Sixth Circuit) or a robust, cross-circuit consensus addressing the same proceeding type (administrative adjudication of tax disputes) and the same restriction (public attendance bans, not just recording limits).
  • Frame the right at the precise level of generality the court demands: not “public access to government meetings,” but “public access to quasi-judicial administrative tax hearings.”
  • Consider pursuing prospective relief to shape agency practices even where damages are barred.
  • Develop an “experience and logic” record specific to the tribunal and subject matter, including historical evidence that such hearings have been open and how public access meaningfully improves adjudicative integrity.

Complex Concepts Simplified

• Qualified immunity: A doctrine shielding government officials from personal liability for damages unless existing law clearly established that their specific conduct was unlawful at the time. It does not bar injunctive or declaratory relief.
• Clearly established law: Requires precedents that put the unlawfulness “beyond debate” for the particular facts. General principles or far-removed analogies don’t suffice; the right must be particularized to the context.
• Controlling vs. persuasive authority: Controlling authority (Supreme Court or Sixth Circuit decisions) binds courts in the Sixth Circuit. Persuasive authority (out-of-circuit or district-court decisions) may inform but generally cannot “clearly establish” a right unless there is a robust, consistent body across circuits.
• Robust consensus: A strong, consistent line of decisions across multiple courts of appeals addressing materially similar facts. A “mere handful” of cases is too thin.
• Press-Enterprise “experience and logic” test: Used to assess claimed First Amendment access rights to proceedings. Courts ask (1) whether the process has historically been open and (2) whether openness positively enhances the process. This test is distinct from forum analysis used for speech rights in public spaces.
• Quasi-judicial administrative hearings: Agency proceedings that resemble court adjudications (e.g., taking evidence, applying law to facts to resolve disputes) and may involve sensitive or confidential information. They are not the same as legislative or policy-making meetings.
• § 1983 “person” requirement: State agencies are often not “persons” under § 1983 for damages claims. Here, the Board was dismissed on that ground; the case proceeded against officials, triggering qualified immunity issues.
• “Not recommended for publication” decisions: Nonprecedential within the circuit but often provide persuasive guidance to lower courts and practitioners about how the circuit applies established doctrines to new facts.

Conclusion

The Sixth Circuit’s decision in Hicks v. Crowley reaffirms a demanding approach to the “clearly established” requirement in qualified immunity, particularly when plaintiffs seek to extend public access doctrines into the specialized realm of quasi-judicial administrative tax adjudications. The panel held that Hicks did not identify controlling authority or a robust consensus recognizing a constitutional right for members of the public to attend other people’s tax hearings—and therefore the individual officials could not be subjected to damages liability for imposing an indefinite ban.

Crucially, the court left open whether a constitutional violation occurred. The opinion does not endorse indefinite bans or no-recording rules; it simply concludes that any unlawfulness was not clearly established as of December 9, 2021. Going forward, litigants pressing access claims in administrative adjudications must build records under the Press-Enterprise “experience and logic” framework and anchor their arguments in controlling or near-uniform authority. Agencies, for their part, should craft transparent, content-neutral rules and fair processes for enforcement. In that sense, even as a nonprecedential ruling, Hicks offers a clear roadmap: specificity governs, district-court authority rarely suffices, and the path around qualified immunity runs through carefully matched, controlling precedent.