ANDREW COOPERRIDER; DEANS DINER, LLC, dba Brewed v. MAGGIE WOODS, Malt Beverage Administrator with the Kentucky Department of Alcoholic…

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREW COOPERRIDER; DEANS DINER, LLC, dba
Brewed,
Plaintiffs-Appellants,
v.
MAGGIE WOODS, Malt Beverage Administrator with
the Kentucky Department of Alcoholic Beverage
Control, ANDREW G. BESHEAR, Governor of
Kentucky, RAY A. PERRY, Secretary of Public
Protection Cabinet, ALLYSON TAYLOR, Commissioner
of the Kentucky Department of Alcoholic Beverage
Control, WESLEY WARDEN DUKE, General Counsel for
the Kentucky Cabinet for Health and Family Services,
and JOSHUA NEWTON, General Counsel for the
Kentucky Department of Alcoholic Beverage Control,
in their individual and official capacities,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
│
│
│
│
│
│
│
│
│
│
│
┘
No. 24-5351
Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.
No. 3:22-cv-00016—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: February 7, 2025
Before: MOORE, CLAY, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Christopher Wiest, Theodore Roberts, CHRIS WIEST, ATTY AT LAW, PLLC,
Covington, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR, ARMSTRONG,
Cincinnati, Ohio, for Appellants. Jan M. West, J. W. Hall, GOLDBERG SIMPSON, LLC,
Prospect, Kentucky, for Appellees Maggie Woods and Allyson Taylor. Laura C. Tipton, Travis
Mayo, Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellee Andy
Beshear. T. Chad Thompson, KENTUCKY PUBLIC PROTECTION CABINET, Frankfort,
Kentucky, for Appellee Ray Perry. LeeAnne Applegate, CABINET FOR HEALTH AND
>

-- 1 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 2
FAMILY SERVICES, Frankfort, Kentucky, for Appellee Wesley Duke. Jennifer Wolsing,
KENTUCKY PUBLIC PROTECTION CABINET, Frankfort, Kentucky, for Appellee Joshua
Newton.
MOORE, J., delivered the opinion of the court in which CLAY, J., concurred, and
THAPAR, J., concurred in part. THAPAR, J. (pp. 31–44), delivered a separate opinion
concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In March 2020, Andrew Cooperrider
expressed on social media his dissatisfaction with Kentucky Governor Andrew Beshear’s actions
in response to the COVID-19 pandemic. Cooperrider, the owner of Brewed, a coffee shop and
bar in Lexington, took specific offense to Governor Beshear’s executive orders requiring masks
indoors and prohibiting indoor dining and drinking. Then, in November 2020, the Kentucky
Department of Alcoholic Beverage Control (“DABC”) suspended Brewed’s alcohol license.
Upon DABC’s official revocation of Brewed’s license in March 2022, Cooperrider filed suit
against the Governor, the DABC commissioner, and a number of other executive-branch officials
alleging First Amendment and due-process violations. According to Cooperrider, his social
media postings and the license-revocation action were connected: the Governor and DABC had
allegedly revoked Brewed’s alcohol license in retaliation for Cooperrider’s protected speech
criticizing Beshear and his COVID-19 policies. All defendants responded to the suit by moving
to dismiss. The district court granted those motions and dismissed the case. Cooperrider and
Brewed now appeal.
We hold that the district court correctly determined that the vast majority of
Cooperrider’s claims are barred by the doctrines of absolute, qualified, and sovereign immunity,
and that it correctly determined that Cooperrider’s remaining substantive-due-process claim fails
the Rule 12(b)(6) pleading standard. So we AFFIRM IN PART the dismissals. But because we
hold that the district court improperly granted qualified immunity to Appellees Beshear, Perry,
and Duke as to Cooperrider’s First Amendment retaliation claim, we REVERSE IN PART and
REMAND for further proceedings.

-- 2 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 3
I. FACTUAL BACKGROUND
A. Cooperrider’s Speech
When the COVID-19 pandemic erupted in March of 2020, Kentucky Governor Andy
Beshear declared a state of emergency and issued a number of executive orders intended to
protect the public from the spread of the disease. Ky. Exec. Order No. 2020-215 (Mar. 6, 2020)
(declaring a state of emergency); Ky. Exec. Order No. 2020-586 (July 9, 2020) (establishing a
mask mandate and prohibiting indoor food and beverage service at restaurants and bars); Ky.
Exec. Order No. 2020-986 (Nov. 18, 2020) (same). Andrew Cooperrider, the sole owner of
Brewed1, a Lexington, Kentucky coffee shop that also served beer2, took great issue with the
Governor’s actions. R. 1 (Compl. at ¶ 12) (Page ID #4). Starting in March 2020, Cooperrider
made a series of highly critical posts on social media regarding Beshear and his actions taken in
response to the pandemic. Id. at ¶ 13 (Page ID #4). Cooperrider made these posts on his own
social-media accounts as well as on Brewed’s official social-media page. Id.
B. The Enforcement Proceeding
On November 25, 2020, the DABC commenced an enforcement action against Brewed
and filed an emergency order suspending Brewed’s alcohol license.3 Id. at ¶ 18 (Page ID #5); R.
23-3 (Emer. Susp. Order at 1) (Page ID #344). The emergency-suspension order rested on “two
separate and distinct violations by the licensee”: first, Brewed’s apparent violation of the
Governor’s executive orders; and second, the establishment’s “disorderly conduct” in violation
of state law. R. 23-3 (Emer. Susp. Order at 1–2) (Page ID #344–45). The disorderly conduct
violation stemmed from an incident on November 24, 2020, when Cooperrider and Brewed
1The establishment doing business as “Brewed” is a limited liability company incorporated under the name
Deans Diner, LLC. We will refer to the establishment as Brewed for clarity.
2Brewed had two alcohol licenses in order to serve beer: an NQ4 Malt Beverage Drink License (No. 034-
NQ4-162794) and an NQ Malt Beverage Package License (No. 034-NQ-162795). R. 23-3 (Emer. Susp. Order at 2)
(Page ID #345). Both were revoked via the emergency suspension order and final revocation. For clarity, we will
refer to both licenses as “Brewed’s license” or “the alcohol license” throughout.
3Cooperrider apparently took issue with the DABC enforcement action and led a citizen effort to seek
Governor Beshear’s impeachment, resulting in a citizen petition filed with the Kentucky House of Representatives
in January 2021. R. 1 (Compl. at ¶ 19) (Page ID #5); see Lane Ball, Kentuckians petition to impeach Gov. Beshear,
WOWK Channel 13 News (Jan. 10, 2021, 11:36 PM), https://www.wowktv.com/news/kentucky/kentuckians-
petition-to-impeach-gov-beshear/.

-- 3 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 4
patrons harassed an inspector from the Lexington-Fayette County Health Department
(“LFCHD”) who had been conducting a regularly scheduled inspection at Brewed. Id. at 2–3
(Page ID #345–46). The order stated that “[t]he second basis for this Emergency Suspension
Order is independent of the first and does not rely on the Governor’s Executive Orders.” Id. at
1–2 (Page ID #344–45). DABC also served upon Cooperrider a notice of violation (“NOV”)
providing notice that the Department had initiated administrative proceedings and sought to
revoke or suspend Brewed’s alcohol license. R. 23-4 (NOV at 1) (Page ID #354).
When the Kentucky General Assembly convened its 2021 Regular Session, the
legislature passed legislation overturning Governor Beshear’s pandemic-related executive orders
and restraining the Governor’s power to issue future executive orders. R. 1 (Compl. at ¶ 21–27)
(Page ID #5–7). That legislation included House Bill 1 (“HB1”), which loosened the
requirements for indoor gathering, including in restaurants and bars; Joint House Resolution 77
(“HR77”), which ended the Governor’s orders relating to business shutdowns and capacity
restrictions; and certain provisions of House Bill 192 (the Assembly’s budget bill) (“HB192”),
which prohibited state spending over $10,000 on actions enforcing the COVID-19 executive
orders. Id.
Meanwhile, the DABC enforcement action against Brewed proceeded, and a hearing was
held on May 21, 2021. Id. at ¶ 31 (Page ID #8). Then, on March 4, 2022, DABC revoked
Brewed’s alcohol license. Id. at ¶ 35 (Page ID #9). Cooperrider appealed the revocation order in
state court. R. 8-2 (State Appeal at 1–14) (Page ID #97–110). According to Governor Beshear’s
brief, on June 4, 2024, the Fayette Circuit Court reversed DABC’s final order revoking Brewed’s
license. Beshear Br. at 6 n.2 (citing Deans Diner, LLC d/b/a Brewed v. Alcoholic Beverage
Control Bd., Civil Action No. 22-CI-00894 (Fayette Cir. Ct. June 4, 2024)). DABC appealed
that decision, and the matter is currently pending before the Kentucky Court of Appeals.
Alcoholic Beverage Control Bd. v. Deans Diner, LLC d/b/a Brewed, No. 2024-CA-0800 (Ky. Ct.
App.).

-- 4 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 5
C. The Proceedings Below
Following the revocation of Brewed’s alcohol license, Cooperrider and Brewed
(hereinafter, “Cooperrider”) quickly filed suit against Governor Beshear; Ray Perry, Secretary of
the Kentucky Public Protection Cabinet; Wesley Duke, General Counsel for the Kentucky
Cabinet for Health and Family Services; Joshua Newton, DABC General Counsel; Allyson
Taylor, DABC Commissioner; and Maggie Woods, DABC Malt Beverage Administrator. R. 1
(Compl. at ¶ 4–9) (Page ID #3). The complaint alleged violations of Cooperrider’s First
Amendment and due-process rights. Id. at ¶ 36–50 (Page ID #9–11). According to Cooperrider,
Beshear and DABC had unconstitutionally retaliated against Brewed for Cooperrider’s protected
speech criticizing the Governor’s COVID-19 policies. Id. at ¶ 38–40 (Page ID #9–10). And by
failing to discontinue the enforcement action and continuing to withhold Cooperrider’s
property—i.e, Brewed’s alcohol license—Beshear and DABC had deprived Cooperrider of both
procedural and substantive due process. Id. at 45–47 (Page ID #10–11). Cooperrider sought
both compensatory and injunctive relief against all defendants in both their personal and official
capacities.
In response to the complaint, Defendants Perry, Beshear, Duke, and Newton moved to
dismiss all claims brought against them in both their official and individual capacities. R. 7
(Perry Mot. to Dismiss); R. 8 (Beshear Mot. to Dismiss); R. 9 (Duke Mot. to Dismiss); R. 23
(Newton Mot. to Dismiss). The district court granted all four motions via a memorandum
opinion and order issued on March 23, 2023, and terminated the case as to defendants Perry,
Beshear, Duke, and Newton. R. 26 (Mem. Op. and Order I).
Defendants Woods and Taylor initially filed answers. R. 12 (Woods Answer), R. 13
(Taylor Answer). After the district court dismissed defendants Perry, Beshear, Duke, and
Newton, only Defendants Woods and Taylor remained. Woods and Taylor filed a joint motion
to dismiss. R. 27 (Taylor/Woods Mot. to Dismiss). The district court granted the motion,
dismissed both defendants from the case, and adjudged the action dismissed via a memorandum
opinion and order and accompanying final judgment on March 19, 2024. R. 33 (Mem. Op. and
Order II), R. 34 (Judgment). Cooperrider timely appealed. R. 35 (Notice of Appeal at 1) (Page
ID #500).

-- 5 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 6
II. DISCUSSION
A. Standard of Review
Via its March 23, 2023 and March 19, 2024 orders, the district court dismissed all of
Cooperrider’s claims against each Defendant. It did so pursuant to two different rules: Federal
Rule of Civil Procedure 12(b)(6), which relates to the factual sufficiency of a complaint, and
Federal Rule of Civil Procedure 12(b)(1), which relates to a complaint’s jurisdictional
sufficiency.
“We review de novo a district court’s decision to grant a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).” Middlebrooks v. Parker, 15 F.4th
784, 789 (6th Cir. 2021). “To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a facially
plausible claim requires courts to construe the complaint in a light most favorable to the plaintiff,
accept all well-pleaded factual allegations as true, and decide whether there is enough factual
content to allow ‘the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Mich. First Credit Union v. T-Mobile USA, Inc., 108 F.4th 421, 425 (6th
Cir. 2024) (quoting Iqbal, 556 U.S. at 678).
Similarly, “[w]e review de novo the district court’s ruling on a Rule 12(b)(1) motion to
dismiss.” Am. Reliable Ins. Co. v. United States, 106 F.4th 498, 504 (6th Cir. 2024). In
reviewing the district court’s dismissal for lack of subject-matter jurisdiction, we “must construe
the complaint in the light most favorable to the Plaintiffs; however, the Court need ‘not presume
the truth of factual allegations pertaining to our jurisdiction to hear the case.’” Skatemore, Inc. v.
Whitmer, 40 F.4th 727, 731–32 (6th Cir. 2022) (quoting Russell v. Lundergan-Grimes, 784 F.3d
1037, 1045 (6th Cir. 2015)). “The party invoking federal jurisdiction bears the burden of
proving that we have jurisdiction over a given claim.” Carman v. Yellen, 112 F.4th 386, 399 (6th
Cir. 2024).

-- 6 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 7
B. Individual-Capacity Claims
We first address Cooperrider’s claims against Defendants in their individual capacities.
Cooperrider seeks damages under 42 U.S.C. § 1983 from Defendants for their alleged violations
of his First Amendment and due-process rights. The district court determined that all of
Cooperrider’s claims against Defendants in their individual capacities were barred by the
doctrines of absolute and qualified immunity. R. 26 (Mem. Op. and Order I at 12–13) (Page ID
#420–21); R. 33 (Mem. Op. and Order II at 9) (Page ID #497). We consider the district court’s
application of each form of immunity, as applied to each Defendant, in turn.
1. Absolute Immunity
The district court held that all three DABC officials against whom Cooperrider brought
suit—Newton, Woods, and Taylor—were entitled to absolute immunity for their actions taken in
furtherance of DABC’s enforcement action against Brewed. “We review a district court’s grant
of absolute immunity de novo.” Turner v. Lowen, 823 F. App’x 311, 317 (6th Cir. 2020) (citing
Moldowan v. City of Warren, 578 F.3d 351, 373–74 (6th Cir. 2009)). At the same time, “[t]he
burden of justifying absolute immunity rests on the official asserting the claim.” Harlow v.
Fitzgerald, 457 U.S. 800, 812 (1982). On appeal, Newton, Woods, and Taylor bear the burden
of proving their entitlement to absolute immunity.
a. Newton
“Absolute prosecutorial immunity . . . is a common law principle that shields a prosecutor
from § 1983 liability.” Cooper v. Parrish, 203 F.3d 937, 946 (6th Cir. 2000). The Supreme
Court has long held that prosecutors are entitled to absolute immunity for actions taken within
the scope of their duties “in initiating a prosecution and in presenting the State’s case.” Imbler v.
Pachtman, 424 U.S. 409, 430–31 (1976); see also Prince v. Hicks, 198 F.3d 607, 611 (6th Cir.
1999) (“A prosecutor is entitled to absolute immunity when that prosecutor acts ‘as an advocate
for the State’ and engages in activity that is ‘intimately associated with the judicial phase of the
criminal process.’”) (quoting Imbler, 424 U.S. at 430–31).

-- 7 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 8
“The Supreme Court has endorsed a ‘functional’ approach for determining whether an
official is entitled to absolute prosecutorial immunity, explaining that a court should look to ‘the
nature of the function performed, not the identity of the actor who performed it.’” Cooper, 203
F.3d at 946–47 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). This approach “focuses
on whether the prosecutor’s activities are ‘intimately associated with the judicial phase of the
criminal process.’” Id. (quoting Imbler, 424 U.S. at 430). So, under the functional approach, we
have held that “[a]bsolute immunity extends to a prosecutor’s conduct in ‘initiating a prosecution
and in presenting the [government’s] case’” as well as “the ‘administrative or investigative acts
necessary for a prosecutor to initiate or maintain the criminal prosecution.’” Rieves v. Town of
Smyrna, 959 F.3d 678, 691 (6th Cir. 2020) (first quoting Imbler, 424 U.S. at 431) (then quoting
Ireland v. Tunis, 113 F.3d 1435, 1447 (6th. Cir. 1997)).
Applying the functional approach, the Supreme Court “has extended absolute immunity
to certain others who perform functions closely associated with the judicial process.” Cleavinger
v. Saxner, 474 U.S. 193, 200 (1985). Specifically, in Butz v. Economou, the Court held that the
protections of absolute immunity extend to administrative agency officials “who are responsible
for the decision to initiate or continue a proceeding subject to agency adjudication.” 438 U.S.
478, 516 (1978)4; see also Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (stating that
absolute prosecutorial immunity “also extends beyond the criminal process to conduct in civil
proceedings where a government attorney is operating in an enforcement role in ‘initiating . . .
judicial proceedings’”) (quoting Cooper, 203 F.3d at 947). The question before us, then, is
whether Newton, DABC’s general counsel and the person responsible for initiating and
4Cooperrider argues that Butz is inapplicable here because that case, involving the United States
Department of Agriculture, extended absolute immunity only to persons “performing adjudicatory functions within a
federal agency.” 438 U.S. at 514. Specifically, Cooperrider argues that “[t]he entirety of the analysis in Butz rests
upon the fact that significant Administrative Procedure Act protections are afforded in federal matters” such that the
same logic does not extend to state agency officials, who are not bound by the APA. Appellant Br. at 24–25. But
we squarely addressed this question decades ago in Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en banc). In
that case, we concluded that it followed from the Supreme Court’s conclusion in Butz “that state officials subject to
restraints comparable to those imposed by the Administrative Procedure Act and performing adjudicatory functions
in resolving potentially heated controversies are entitled to absolute immunity from damages liability for their
judicial acts.” Watts, 978 F.2d at 273. Driving home the point, we stated that “the case law in this circuit and
elsewhere is very clear: public policy requires absolute immunity for officials performing quasi-prosecutorial or
quasi-judicial functions, at least where protections such as those provided by the Administrative Procedure Act are
in place.” Id. at 274 (emphasis added). The protections of absolute immunity therefore apply with equal force to
state agency officials performing judicial and prosecutorial functions as they do to federal agency officials.

-- 8 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 9
continuing the enforcement action against Brewed, functioned in a prosecutorial role in initiating
and continuing those proceedings. See Newton Br. at 6–14. We answer that question in the
affirmative.
To determine whether an individual public official is entitled to absolute immunity, “we
examine the nature of the functions with which a particular official or class of officials has been
lawfully entrusted” and “evaluate the effect that exposure to particular forms of liability would
likely have on the appropriate exercise of those functions.” Forrester, 484 U.S. at 224. The
complaint alleges that Newton, in his role as DABC general counsel, made the discretionary
decision to initiate and continue an enforcement proceeding against Brewed. R. 1 (Compl. at
¶ 20) (Page ID #5) (stating that Newton sent emails “reflect[ing] a concerted effort to deprive
Plaintiffs of their alcohol licenses”); id. at ¶ 18, 31 (Page ID #5, 8) (referring to all Defendants,
including Newton, collectively). These allegations are supported by the fact that Newton signed
and served Brewed with the NOV, putting Cooperrider on notice that DABC had initiated an
administrative proceeding before the Alcoholic Beverage Control Board and sought to revoke or
suspend Brewed’s alcohol license. R. 23–4 (NOV at 1) (Page ID #354). And the recommended
order issued by the hearing officer lists Newton as having represented DABC at the revocation
hearing. R. 8–2 (Rec. Order at 1) (Page ID #119).
Newton’s role in the license-revocation proceeding appears to have been a
quintessentially prosecutorial one: initiating, and then litigating, an enforcement proceeding
against Brewed that resulted in an agency adjudication revoking its alcohol license. See, e.g.,
Kovacic v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 694 (6th Cir. 2013)
(holding that social workers, who “often engage in prosecutorial functions when carrying out
their duties,” are “entitled to absolute immunity when they engage in conduct ‘intimately
associated with the judicial phase of the criminal process’” such as “initiating court actions or
testifying under oath” in child-welfare proceedings) (quoting Pittman v. Cuyahoga Cnty. Dep’t
of Child. & Fam. Servs., 640 F.3d 716, 724 (6th Cir. 2011)). The critical question is whether
Newton was “functioning in an enforcement role and acting as [an] advocate[] for the state in
initiating and prosecuting judicial proceedings,” in which case he is “entitled to an absolute
immunity defense.” Cooper, 203 F.3d at 947. We conclude that Newton was.

-- 9 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 10
Our conclusion tracks with that of the Fifth Circuit, which addressed this very question in
Spec’s Family Partners, Ltd. v. Nettles, 972 F.3d 671 (5th Cir. 2020). There, a liquor store chain
operator brought a civil-rights action against Texas Alcoholic Beverage Commission (“TABC”)
officials who had refused to renew the business’s alcohol permits and who had advocated against
the granting of new permits for additional chain locations. Id. at 675. The Fifth Circuit
determined that the officials’ challenged conduct in placing administrative holds on permits,
protesting the granting of new permits, and making decisions regarding renewal permits “was
akin to prosecutors intimately involved in judicial proceedings and therefore ‘entitled to absolute
immunity from suit.’” Id. at 678 (quoting Disraeli v. Rotunda, 489 F.3d 628, 632 (5th Cir.
2007)). The Fifth Circuit thus held that the TABC officials “were functioning in quasi-
prosecutorial roles as the State’s advocate in a way ‘intimately associated with’ judicial
proceedings.” Id. at 679 (quoting Imbler, 424 U.S. at 431); see also Romano v. Bible, 169 F.3d
1182, 1187 (9th Cir. 1999) (holding that members of the Nevada Gaming Control Board were
entitled to absolute quasi-prosecutorial immunity from damages liability in a § 1983 action
arising from disciplinary proceedings against a former gaming licensee, where the Board acted as
a prosecutor in investigating and deciding to file a complaint against the licensee and entered
into settlement negotiations with him); Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365,
1373 (8th Cir. 1996) (holding that a child-welfare officer who initiated proceedings in state court
leading to the award of temporary protective custody of a child to the state acted in a role that
“was functionally comparable to that of a prosecutor” and thus was “absolutely immune from
liability”); Glunk v. Pennsylvania State Bd. of Med., 687 F. App’x 196, 202 (3d Cir. 2017)
(holding that prosecutors in a disciplinary proceeding brought by the state board of medicine
against a physician were absolutely immune from suit for money damages, where the proceeding
resulted in a 60-day suspension of doctor’s medical license and a fine).
Like the officials in Nettles, Newton functioned in a quasi-prosecutorial role in initiating
and prosecuting the enforcement action against Brewed. Newton exercised his discretion in
deciding to initiate the license-revocation proceeding, and then acted as an advocate for the state
in continuing to argue for the revocation of Brewed’s license, up to and including his
representation of DABC at the administrative hearing. Newton’s role was one “intimately
associated” with the agency’s adjudicatory proceedings. Imbler, 424 U.S. at 431. Newton is

-- 10 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 11
therefore protected from damages liability under the doctrine of absolute quasi-prosecutorial
immunity. The district court did not err in dismissing Cooperrider’s claims against Newton in
his individual capacity.
b. Woods and Taylor
Like the doctrine of prosecutorial immunity, the doctrine of absolute judicial immunity
has long been recognized at common law as necessary to “shield[] judges from collateral attacks
challenging a judge’s actions taken in her official judicial capacity.” Morgan v. Bd. of Pro.
Resp. of the Sup. Ct. of Tenn., 63 F.4th 510, 518 (6th Cir. 2023). “This immunity is absolute: all
of a judge’s actions taken in an official judicial capacity are immune from suit.” Id. And as it
has for absolute prosecutorial immunity, the Supreme Court has extended the protections of
absolute judicial immunity to “non-judicial officers who perform ‘quasi-judicial’ duties.” Bush
v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (quoting Joseph v. Patterson, 795 F.2d 549, 560 (6th
Cir. 1986)). So, when the Supreme Court in Butz determined that administrative agency officials
performing quasi-prosecutorial functions were entitled to absolute immunity, it also held that
those individuals “performing adjudicatory functions within a[n] . . . agency are entitled to
absolute immunity from damages liability for their judicial acts.” Butz, 438 U.S. at 514.5
We employ the same “functional” approach in determining whether state administrative
officials performing quasi-judicial duties are entitled to absolute immunity. Forrester, 484 U.S.
at 229. Under that approach, we look to “the nature of the function being performed rather than
the identity of the actor performing it.” McKenzie, Grant, Konvalinka & Harrison, PC v. Banks
(In re McKenzie), 716 F.3d 404, 412 (6th Cir. 2013). Here, Woods and Taylor—DABC’s
commissioner and malt beverage administrator, respectively—argue that they acted in a quasi-
5The dissent takes issue with the notion that absolute judicial immunity may extend to individuals outside
of the judicial branch. Dissent at 35. But the doctrine of quasi-judicial immunity is not a novel one. Instead, it is a
well-settled principle of law that certain non-judicial governmental officials are entitled to absolute immunity from
suit for their performance of “quasi-judicial” duties. See, e.g., Bush, 38 F.3d at 847; Joseph, 795 F.2d at 560;
Johnson v. Granholm, 662 F.2d 449, 450 (6th Cir. 1981) (per curiam); Denman v. Leedy, 479 F.2d 1097, 1098 (6th
Cir. 1973) (per curiam); Hurlburt v. Graham, 323 F.2d 723, 725 (6th Cir. 1963). So the suggestion that the
application of absolute immunity to “any official, from any branch of government” is impermissible directly
contradicts our longstanding precedent. Dissent at 35.

-- 11 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 12
judicial capacity when they issued the final order revoking Brewed’s alcohol license. Woods
and Taylor Br. at 11–13. We agree.
While we lack the benefit of precedent as to whether state agency commissioners who
suspend or revoke liquor licenses enjoy absolute immunity—in fact, we expressly reserved any
decision on this exact question in Flying Dog Brewery, LLLP v. Michigan Liquor Control
Comm’n, 597 F. App’x 342, 349 (6th Cir. 2015) (“We expressly do not . . . consider whether the
Hearing Commissioners who suspend or revoke liquor licenses in disciplinary cases are entitled
to quasi-judicial immunity.”)—our en banc decision in Watts v. Burkhart provides guidance.
Watts involved a Tennessee physician who brought a § 1983 action against members of the
Tennessee Board of Medical Examiners, in their individual capacities, for their roles in presiding
over an administrative hearing to determine whether Watts had prescribed controlled substances
in unsafe quantities and summarily suspending his medical license. 978 F.2d at 271.
Determining that “the quasi-judicial function exercised by the defendants in the case at bar
appears comparable to functions that have long been accorded absolute immunity at common
law” and that the members of the board were “subject to restraints and safeguards comparable to
those built into the archetypal judicial process,” we concluded that the board members were
entitled to absolute quasi-judicial immunity. Id. at 275, 278.
In the years following Watts, we have applied its logic in affording absolute immunity to
members of a state board of education for their role in overseeing administrative hearings and
adjudicating the removal of members of a county board of education, Hale v. Cody, 188 F.3d 507
(6th Cir. 1999) (table) (per curiam), as well as members of a state parole board for their role in
scheduling parole hearings and making parole determinations, Hughes v. Duncan, 93 F.4th 374,
381 (6th Cir. 2024). On the other hand, we have declined to extend the protection of absolute
immunity to members of a university faculty grievance committee for their role in handling a
faculty member’s tenure-denial grievance, Purisch v. Tennessee Tech. Univ., 76 F.3d 1414, 1422
(6th Cir. 1996); to the director of a state bar association for his alleged conduct in threatening a
picketer outside his residence, Dean v. Byerley, 354 F.3d 540, 557 (6th Cir. 2004); or to the
members of a state environmental-quality department for their actions related to the water crisis
in Flint, Michigan, Boler v. Earley, 865 F.3d 391, 416 (6th Cir. 2017).

-- 12 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 13
Watts and its progeny articulate a set of factors that inform our analysis as to whether an
agency official is entitled to quasi-judicial immunity. First, we look to whether the officials’
“positions are akin to that of judges.” Purisch, 76 F.3d at 1422 (quoting Watts, 978 F.2d at 278).
Second, we determine whether “the potential for vexatious lawsuits is great.” Id. Third, we
determine whether “enough safeguards exist to protect [the complainant’s] constitutional rights.”
Id. We conclude that Woods and Taylor, acting in their roles as adjudicators of DABC licensure
revocation proceedings, meet all three criteria.6
First, Woods and Taylor performed a function “normally performed by an adjudicator,”
Dean, 354 F.3d at 556. As agency heads, Woods and Taylor are authorized by statute to oversee
the conduct of administrative hearings and to delegate the power to issue recommended orders to
subordinate hearing officers. Ky. Rev. Stat. § 13B.030(1). Once a hearing officer has issued a
recommended order, the agency heads must “consider the record including the recommended
order and any exceptions duly filed to a recommended order” and determine whether to accept
the hearing officer’s recommendation, to modify it, or to reject it. Ky. Rev. Stat. § 13B.120(1)–
(2). The agency heads then issue a final order, “in writing and stated in the record”; “[i]f the
final order differs from the recommended order, it shall include separate statements of findings
of fact and conclusions of law.” Ky. Rev. Stat. § 13B.120(3). Once issued, a final order is
immediately appealable to the state circuit court. Ky. Rev. Stat. § 13B.140(1). This function—
issuing final orders in administrative adjudications following the issuance of a recommended
order by an inferior adjudicator—is analogous to that of a judge reviewing a report and
recommendation issued by a magistrate judge and making a final determination to accept,
modify, or depart from the magistrate judge’s recommendation. See Fed. R. Civ. P. 72(b). Here,
while the hearing officer directly overseeing Brewed’s license revocation hearing played the role
of a magistrate judge, Woods and Taylor, in issuing the final order—which reviewed the hearing
officer’s findings and made its own statements of fact and conclusions of law—played the role of
6The dissent contends that we apply the three-factor Watts test in error and instead applies a six-factor test
set out by the Supreme Court in Cleavinger. Dissent at 39. But Watts, a case decided by an en banc panel of this
court, was issued seven years after Cleavinger. And, as the dissent notes, we repeatedly cited Cleavinger in coming
to our conclusion in Watts. Dissent at 39; Watts, 978 F.2d at 276. So while we are bound by Supreme Court
precedent, the subsequent Watts en banc decision provides binding precedent with respect to the applicable test for
determining an individual’s entitlement to absolute quasi-judicial immunity.

-- 13 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 14
the district judge. R. 8–2 (Final Order at 1–7) (Page ID #111–17). This factor therefore weighs
in favor of granting Woods and Taylor absolute quasi-judicial immunity.7
Second, the cases Woods and Taylor decide as DABC agency heads are “sufficiently
controversial that, in the absence of immunity, [they] would be subject to numerous damages
actions.” Bon-Ing, Inc. v. Hodges, 700 F. App’x 461, 464 (6th Cir. 2017). Woods and Taylor
issue orders suspending and revoking licenses to sell alcoholic beverages. Each of these orders
creates an aggrieved business owner likely to be displeased with an adverse outcome. As a
result, both agency heads’ ability to operate “would undoubtedly be hindered if they were
routinely sued for damages” for suspending and revoking alcohol licenses. Flying Dog, 597 F.
App’x at 350. So, to “assure that [Woods and Taylor] can perform [their] functions without
harassment or intimidation,” Cleavinger, 474 U.S. at 202, it is necessary that their adjudicatory
actions be shielded from vexatious damages suits. See Purisch, 76 F.3d at 1422. This factor also
weighs in favor of granting absolute immunity to Woods and Taylor.
Finally, a number of regulatory safeguards established by Kentucky law protect those
subjected to license-revocation proceedings, “tend[ing] to reduce the need for private damages
actions as a means of controlling unconstitutional conduct.” Hughes, 93 F.4th at 379 (quoting
Butz, 438 U.S. at 512). Chapter 13B of the Kentucky Revised Statutes sets forth the rules
governing administrative hearings—the right to which is guaranteed by law under Ky. Rev. Stat.
7The dissent contends that this factor instead cuts against Woods and Taylor because “[t]he administrators
here don’t look much like judges.” Dissent at 39. In particular, the dissent emphasizes the fact that Woods and
Taylor “are state employees—subordinate to the governor” and do not have removal protections or serve fixed
terms. Id. True, although department heads are appointed by the governor for “terms not exceeding four (4) years,”
these officials “may be removed from office by the Governor for any cause the Governor deems sufficient.” Ky.
Rev. Stat. §§ 12.040(1), 63.080(1). But the fact that Woods and Taylor, as department heads, do not enjoy removal
protections does not mean that they serve any less of an adjudicatory role. Such a conclusion would be in direct
conflict with our precedent. See, e.g., Hughes, 93 F.4th at 380–81 (holding that members of the Tennessee Board of
Parole are entitled to absolute quasi-judicial immunity even though the Board members are appointed by the
governor because, unlike the prison discipline committee at issue in Cleavinger, the Board members are not “direct
subordinates of the warden who reviews their decision”) (quoting Cleavinger, 474 U.S. at 204). Here, like the
parole board members in Hughes, Woods and Taylor, although appointed by the governor to their positions, are not
direct subordinates to the governor but operate their department at their “direction and control.” Ky. Rev. Stat.
§ 12.040(1). Nor are their decisions as to the final revocation of alcohol licenses reviewable by the governor.
Regardless, in its analysis of this Watts factor, the dissent focuses on the wrong point. The test for whether
an administrative official is entitled to quasi-judicial immunity is a functional one; we ask not whether an individual
seems like a judge, but whether they act like a judge. Woods and Taylor, in issuing a final revocation order that
made its own findings of fact and conclusions of law, acted like judges in revoking Cooperrider’s license.

-- 14 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 15
§ 243.520—in the state, including license-revocation hearings before the DABC. Ky. Rev. Stat.
§ 13B.020(1). These rules provide extensive procedural safeguards to parties who appear at such
hearings. Prior to a hearing, the agency must provide at least twenty days of advance notice to
the parties. Ky. Rev. Stat. § 13B.050(1). That notice must include a statement advising the
parties of their right to legal counsel. Ky. Rev. Stat. § 13B.050(3)(f). At a hearing, the presiding
hearing officer must “afford all parties the opportunity to respond, present evidence and
argument, conduct cross-examination, and submit rebuttal evidence.” Ky. Rev. Stat.
§ 13B.080(4). Following a hearing, the hearing officer makes findings of facts “based
exclusively on the evidence on the record.” Ky. Rev. Stat. § 13B.090(1). The hearing officer
then drafts a recommended order, including her findings of fact, conclusions of law, and
recommended disposition of the hearing, which she submits to the agency head within sixty days
of receiving an official record of the hearing. Ky. Rev. Stat. § 13B.110(1). The recommended
order must be sent to each party, which has fifteen days to file exceptions to the
recommendations. Ky. Rev. Stat. § 13B.110(4). The agency head then issues a final order,
which must contain a statement advising parties of their appeal rights. Ky. Rev. Stat.
§ 13B.120(3). Finally, all final orders issued by agency heads are subject to judicial review in
the state circuit court. Ky. Rev. Stat. § 13B.140(1).
“Because these adversarial features of the [agency’s] hearing process ‘tend to enhance the
reliability of information and the impartiality of the decisionmaking process, there is a less
pressing need for individual suits to correct constitutional error.’” Hughes, 93 F.4th at 380
(quoting Butz, 438 U.S. at 512). And the availability of judicial review “tilts this factor toward
granting quasi-judicial immunity because any errors of [the agency heads] may be ‘largely
remediable through the appellate process.’” Flying Dog, 597 F. App’x at 352 (quoting Heyde v.
Pittenger, 633 F.3d 512, 519 (7th Cir. 2011)). These fulsome safeguards reduce the need for
private damages actions such as Cooperrider’s. See, e.g., Watts, 978 F.2d at 275–77 (holding
that the Tennessee Board of Medical Examiners was governed by adequate safeguards because it
was required to comply with Tennessee’s version of the Administrative Procedure Act).8
8The dissent, while acknowledging that this factor “remains a close call,” reasons that this factor, too,
weighs against Woods and Taylor. Admitting that Kentucky statute provides “real procedural safeguards” to those

-- 15 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 16
“‘[O]fficials who seek absolute immunity must squarely shoulder the burden of showing
that public policy demands an exemption [from damages liability] of that scope.’” Watts, 978
F.2d at 278 (quoting Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 784 n.15 (1st Cir.
1990)). Woods and Taylor can and do meet this burden, having shown that “their positions are
akin to that of judges,” “the potential for vexatious lawsuits is great,” and that there are “enough
safeguards” under Kentucky law to protect the constitutional rights of alcohol-license holders.
Id. They are therefore entitled to absolute immunity from damages.9 10
Cooperrider argues that our decision in Flying Dog forecloses granting absolute
immunity to Woods and Taylor. Appellant Br. at 27–28; see Flying Dog, 597 F. App’x at 352
(declining to extend absolute quasi-judicial immunity to members of the Michigan Liquor
subject to alcohol-license-revocation proceedings, the dissent nevertheless finds these safeguards inadequate to
protect licenseholders because “Taylor and Woods aren’t neutral hearing officers.” Dissent at 40. The dissent’s
main qualm appears to be that, under Kentucky’s statutory scheme, the department heads can reject or modify a
hearing officer’s recommended order, as was the case here. Ky. Rev. Stat. § 13B.120(2). But if the agency heads
modify or reject a recommended order in any way, the final order must “include separate statements of findings of
fact and conclusions of law.” Ky. Rev. Stat. § 13B.120(3). And, as discussed, the agency’s final order is
immediately appealable. So the dissent’s fears of agency heads engaging in freewheeling, partisan conduct is
vitiated by the statute’s careful, multi-level procedural structure.
9This conclusion is consistent with the Seventh Circuit’s decision in Killinger v. Johnson, 389 F.3d 765
(7th Cir. 2004). There, the Seventh Circuit considered the question of whether a village mayor, serving in his role as
local liquor-control commissioner, was entitled to absolute quasi-judicial immunity in a § 1983 suit brought by an
aggrieved bar owner over the suspension of his liquor license. Id. at 768. The Seventh Circuit concluded that the
mayor was so entitled, determining that the mayor was “performing a judicial function when he temporarily closed
[the bar], fined Killinger, and suspended his license.” Id. at 770. The court also noted the importance of regulatory
protections under Illinois law guiding the mayor’s exercise of authority in his role as liquor commissioner, including
notice and hearing requirements, evidentiary protections, and the availability of judicial review. Id. (citing Ill. Rev.
Stat. ch. 43, ¶ 153 (1983)).
10As stated above, the dissent argues that we should instead apply the six factors set forth in Cleavinger in
evaluating Woods’s and Taylor’s entitlement to absolute immunity. But even if we were to evaluate this issue under
Cleavinger’s factors, we would reach the same conclusion as we reach under those set forth in Watts. Those factors
are “(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the
presence of safeguards that reduce the need for private damages as a means of controlling unconstitutional conduct;
(c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and
(f) the correctability of error on appeal.” Cleavinger, 474 U.S. at 202. The third and fourth factors arguably cut
against granting absolute immunity to Woods and Taylor, who are appointed by and removable at will by the
governor and who, in issuing final revocation orders, are not legally bound by precedent. But the first, second, fifth,
and sixth factors all favor granting absolute immunity in this circumstance: license revocation proceedings are
fraught, and DABC adjudicators need to do their jobs without threat of harassment; a multitude of safeguards protect
the due-process rights of licenseholders in revocation proceedings; license revocation proceedings are undoubtedly
adversarial; and final revocation orders are immediately appealable to the appropriate state circuit court. So while
not every factor leans in favor of granting absolute immunity to Woods and Taylor, the Cleavinger factors weigh in
favor of granting such immunity.

-- 16 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 17
Control Commission for their role in denying a brewery’s license to sell their beer in the state).
But as discussed above, we expressly declined in Flying Dog to address the question presented
here. Id. at 349. And the factual differences between the actions taken by the commissioners in
Flying Dog and the actions taken by Woods and Taylor distinguish the two cases. First, “[t]he
Commission’s rules . . . provide more extensive procedural safeguards to parties who appear
before the Hearing Commissioners due to liquor violations than to parties who appear before the
Administrative Commissioners on initial licensing matters.” Id. at 350. And unlike the
commissioners in Flying Dog, Wood and Taylor were required by regulation “to explain their
decisions through findings of fact and conclusions of law.” Id. at 351. Additionally, while the
licensure proceeding in Flying Dog lacked many of the adversarial characteristics of a judicial
proceeding, the license revocation hearing in this case involved the opportunity for both parties
to present evidence and argument, the presentation and examination of witnesses, and the ability
to make and record evidentiary objections. See Ky. Rev. Stat. § 13B.080(4).
Woods and Taylor exercised functions more comparable to those of judges, and were
subject to more restraints and safeguards, than the agency officials in Flying Dog. Both Woods
and Taylor are entitled to absolute immunity. Accordingly, we affirm the district court’s
dismissal of Cooperrider’s claims for damages against Woods and Taylor in their individual
capacities based on absolute immunity.
2. Qualified Immunity
The district court determined that Cooperrider’s individual-capacity claims against the
remaining Defendants—Beshear, Perry, and Duke—were barred by the doctrine of qualified
immunity. R. 26 (Mem. Op. and Order I at 13) (Page ID #421). We review the district court’s
qualified-immunity determination de novo. Adams v. Hanson, 656 F.3d 397, 401 (6th Cir.
2011).
“The doctrine of qualified immunity provides that ‘government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Skatemore, 40 F.4th at 738 (quoting Williams v.

-- 17 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 18
Maurer, 9 F.4th 416, 430 (6th Cir. 2021)). “While the defendant ‘bears the burden of pleading’ a
qualified immunity defense, ‘[t]he ultimate burden of proof is on the plaintiff to show that the
defendant is not entitled to qualified immunity.’” Palma v. Johns, 27 F.4th 419, 427 (6th Cir.
2022) (quoting Estate of Hill v. Miracale, 853 F.3d 306, 312 (6th Cir. 2017)) (brackets in
original).
Because Beshear, Perry, and Duke all raised qualified-immunity defenses in their
motions to dismiss, R. 7 (Perry Mot. to Dismiss at 11) (Page ID #70), R. 8 (Beshear Mot. to
Dismiss at 16–17) (Page ID #92–93), R. 9 (Duke Mot. to Dismiss at 10–11) (Page ID #178–79),
the burden rests with Cooperrider on appeal to show that no Defendant is entitled to qualified
immunity. “To overcome a qualified immunity defense, the plaintiff must show (1) that the
defendant violated his federal rights and (2) that the ‘contours of the right’ were sufficiently clear
that ‘a reasonable offic[ial] in the defendant’s position should have known his conduct violated
that right.’” Ramsey v. Rivard, 110 F.4th 860, 866 (6th Cir. 2024) (quoting Gardenhire v.
Schubert, 205 F.3d 303, 311 (6th Cir. 2000)).
We have repeatedly cautioned, however, that “it is generally inappropriate for a district
court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v.
Campbell, 779 F.3d 421, 433 (6th Cir. 2015). Although the Supreme Court has directed that
“qualified immunity is a threshold question to be resolved at the earliest possible point in the
proceedings,” Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003), “that point is usually
summary judgment and not dismissal under Rule 12,” Wesley, 779 F.3d at 433–34. This is
because, “‘[a]bsent any factual development beyond the allegations in a complaint, a court
cannot fairly tell whether a case is “obvious” or “squarely governed” by precedent, which
prevents us from determining whether the facts of this case parallel a prior decision or not’ for
purposes of determining whether a right is clearly established.” Guertin v. State, 912 F.3d 907,
917 (6th Cir. 2019) (quoting Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch.
Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring)). Thus, “even though we retain
jurisdiction over this type of appeal, this Court generally denies qualified immunity at the motion
to dismiss stage in order for the case to proceed to discovery, so long as the plaintiff states a
plausible claim for relief.” Marvaso v. Sanchez, 971 F.3d 599, 606 (6th Cir. 2020).

-- 18 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 19
Here, the district court found that Cooperrider’s complaint failed plausibly to allege a
First Amendment retaliation claim, substantive-due-process claim, or procedural-due-process
claim. R. 26 (Mem. Op. and Order I at 12–13) (Page ID #420–21). Having determined that
Cooperrider failed to plead facts demonstrating the violation of any constitutional right, the
district court did not proceed to an analysis of whether the at-issue rights were clearly
established. We evaluate the district court’s determination as to each claim in turn.
a. First Amendment Retaliation
Cooperrider argues that Beshear, Perry, and Duke violated his First Amendment rights by
retaliating against him for his critical social-media activity by initiating the enforcement action
against Brewed. Appellant Br. at 15. “To prove a First Amendment retaliation claim, a plaintiff
must show: (1) he engaged in protected speech; (2) the defendant took an adverse action against
him; and (3) there is a causal connection between the protected speech and the adverse action.”
Josephson v. Ganzel, 115 F.4th 771, 783 (6th Cir. 2024). All parties agree that Cooperrider
engaged in protected speech when he wrote critically of the Governor and his administration’s
response to the COVID-19 pandemic. The question before us, then, is whether Cooperrider
adequately pleaded an adverse action taken by the Defendants—i.e., the initiation and
continuation of enforcement proceedings against Brewed and the permanent revocation of
Brewed’s alcohol license—and that the action was causally connected to Cooperrider’s protected
speech. The district court determined that the complaint failed plausibly to allege a First
Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 16–19) (Page ID #424–27). We
disagree.
First, Cooperrider adequately pleaded an adverse action: that Beshear, Perry, and Duke
directed and oversaw the enforcement proceeding against Brewed and the ultimate revocation of
Brewed’s alcohol license. For First Amendment retaliation purposes, an adverse action is one
that “would chill or silence a ‘person of ordinary firmness’ from future First Amendment
activities.” Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (en banc) (quoting
Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)). “Any adverse actions, other than
‘those that create only de minimis negative consequences,’ can ‘offend the Constitution.’”
Josephson, 115 F.4th at 787 (quoting Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir. 2021)).

-- 19 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 20
Critically, “[w]hether an alleged adverse action is sufficient to deter a person of ordinary
firmness is generally a question of fact.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583–84
(6th Cir. 2012). “The adverse nature of a particular action ‘will depend on context.’” Josephson,
115 F.4th at 787 (quoting Bell v. Johnson, 308 F.3d 594, 602–03 (6th Cir. 2002)). “As a result,
retaliation claims based on all but genuinely ‘inconsequential’ official actions ‘should go to the
jury.’” Id. (quoting Bell, 308 F.3d at 603).
Here, Cooperrider alleges that Beshear, Perry, and Duke chose to initiate11 and continue12
an enforcement action against Brewed, resulting in the revocation of Brewed’s license to serve
alcohol. We have repeatedly found similar actions sufficiently adverse to meet this element of a
retaliation claim. See, e.g., Josephson, 115 F.4th at 787 (holding that a school’s decision not to
renew a teacher’s contract was “a traditional example of an adverse action”); Holzemer v. City of
Memphis, 621 F.3d 512, 520 (6th Cir. 2010) (affirming the district court’s holding that a
government employee’s “dilatory tactics with respect to reissuing permits . . . amounted to
adverse acts that would deter a person of ordinary firmness from engaging in the protected
petitioning activity”); Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 725–26 (6th Cir. 2010)
(holding that an allegation that Township officials had threatened to revoke a resident’s special-
use permit was sufficient to show an adverse action at the pleading stage). The complaint’s
allegation that Defendants made the decision to commence license-revocation proceedings
11In his brief, Governor Beshear states that Cooperrider “conceded in [his] Complaint that the institution of
the ABC enforcement action was not adverse, admitting ABC initiated the action in response to Appellants’ ‘non-
compliance with [public health] orders.’” Beshear Br. at 17 (quoting R. 1 (Compl. at ¶ 18) (Page ID #5)). The
Governor is incorrect that Cooperrider concedes this point. The complaint merely states that “Defendants instituted
an enforcement action against Plaintiff, seeking the revocation of its Alcohol Licenses . . . on or about November 25,
2020, for non-compliance with those orders.” R. 1 (Compl. at ¶ 18) (Page ID #5). And “government actions, which
standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part
by a desire to punish an individual for exercise of a constitutional right.” Thaddeus-X, 175 F.3d at 386. Here,
Cooperrider alleges that, even if in part motivated by Brewed’s failure to follow public health laws, Defendants’
decision to initiate the enforcement proceeding against Brewed was also motivated, and substantially so, by
Defendants’ desire to retaliate against him for his protected speech.
12The district court held, and Defendants now argue on appeal, that it would be “illogical to suggest that
the continuation of [an action] that was already under way could possibly be retaliatory.” R. 26 (Mem. Op. and
Order I at 16) (Page ID #424) (quoting Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir. 2020)). But Cooperrider’s
claim is not that Defendants merely continued the ongoing enforcement action against Brewed; instead, it is that
they continued the action despite the intervening passage of legislation that should have, in Cooperrider’s view,
rendered the action baseless. And it is not illogical to suggest that the continuation of an action rendered baseless by
intervening law could have been retaliatory.

-- 20 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 21
against Brewed, on its face, supports a reasonable inference that Cooperrider suffered an adverse
action.
Second, the complaint contains sufficient facts demonstrating that “‘the adverse action
was motivated at least in part by [Cooperrider’s] protected conduct.’” Dye v. Off. of the Racing
Comm’n, 702 F.3d 286, 294 (6th Cir. 2012) (quoting Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 255 (6th Cir. 2006)).13 To show causation, a complainant must point to “‘specific,
nonconclusory allegations’ reasonably linking her speech” to the adverse action. Bailey v. Floyd
Cnty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 144 (6th Cir. 1997) (quoting Wright v.
Illinois Dep’t of Child. & Fam. Servs., 40 F.3d 1492, 1500 (7th Cir. 1994)). Cooperrider’s
complaint does so. Accepting all well-pleaded factual allegations in the complaint as true,
Beshear, Perry, and Duke all (1) knew about Cooperrider’s critical social-media posts and
(2) decided to initiate the enforcement action against Brewed because of Cooperrider’s
comments.14 The complaint makes several allegations relating to the causation element,
including that “Defendants were each aware of, and angered by, the social media activity of the
Plaintiffs,” R. 1 (Compl. at ¶ 15) (Page ID #4); that Governor Beshear had, “in public statements
and speeches, directly addressed the speech of Plaintiffs, usually in a manner that expresse[d] his
anger at such speech,” id. at ¶ 16; that “Email communications by and between Defendants
Duke, Newton, and Taylor, in particular reflect a concerted effort to deprive Plaintiffs of their
alcohol licenses,” id. at ¶ 20 (Page ID #5); that “[i]nternal emails, communications, and
13The district court, in determining that the complaint failed to allege causation, pointed to our holding in
Leonard v. Robinson that “[a] ‘motivating factor’ is essentially but-for cause—‘without which the action being
challenged simply would not have been taken.’” R. 26 (Mem. Op. and Order at 16) (Page ID #424) (quoting
Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir.
2002))). That holding stemmed from the Supreme Court’s decision in Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977), in which the Court held that, “where constitutionally protected speech is ‘a ‘motivating
factor’’ in governmental action adverse to the plaintiff, the adverse action is unconstitutional . . . unless the same
action would have been taken ‘even in the absence of the protected conduct.’” Greene, 310 F.3d at 897 (quoting
Mount Healthy, 429 U.S. at 287). Critically, however, Leonard and Greene were both cases reviewing a district
court’s grant of summary judgment. Here, at the pleading stage, Cooperrider was required only to plausibly allege
that his speech was a motivating factor of the enforcement action. He does so. Whether or not the action would
have been taken in the absence of Cooperrider’s speech is a quintessential fact question to be inquired into during
the discovery process.
14With respect to this allegation, which goes to Appellees’ state of mind in deciding to initiate and continue
the enforcement action against Brewed, we have noted that “[a] defendant’s motivation for taking action against the
plaintiff is usually a matter best suited for the jury.” Handy-Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir.
2012) (quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).

-- 21 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 22
witnesses have confirmed” that all Defendants “had knowledge of the existence of Brewed’s
[new and compliant public safety] plan, and deliberately chose to continue their illegal
enforcement action,” id. at ¶ 33 (Page ID #8); that “Beshear, Perry, and Duke each directed that
no . . . settlement be offered to Brewed, because the Defendants desired to punish Brewed and
Cooperrider for their First Amendment protected speech,” id. at ¶ 34 (Page ID #8–9); and that
Woods and Taylor, in revoking Brewed’s license, acted “in accord with directives they received
from Defendants Beshear, Perry, and Duke,” id. at ¶ 35 (Page ID #9). At this stage of the
proceedings, these allegations are adequate to allow a district court “to draw the reasonable
inference that the [Defendants are] liable for the misconduct alleged,” that is, that Beshear, Perry,
and Duke were substantially motivated to pursue alcohol license-revocation proceedings against
Brewed because of Cooperrider’s statements. See Iqbal, 556 U.S. at 678.
Defendants urge us to follow the lead of the district court, which decided the causation
element largely based on the gap in time between Cooperrider’s speech and the adverse action.
Beshear Br. at 19; Newton Br. at 19; Duke Br. at 14. Citing our decision in Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392 (6th Cir. 2010), the district court determined that “the long
duration between the Plaintiffs’ speech and the Defendants’ actions is a weak indicator, if any, of
causation.” R. 26 (Mem. Op. and Order I at 17) (Page ID #425); see Vereecke, 609 F.3d at 400
(“[T]he more time that elapses between the protected activity and the adverse employment
action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory
conduct to establish causality.’” (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524–
25 (6th Cir. 2008))). But Vereecke, like the rest of the cases the district court cited in support of
its conclusion,15 was decided at the summary-judgment stage. Here, at the pleading stage,
Cooperrider need only “allege[] facts ‘that would allow a jury to find that [the adverse action]
was motivated at least in part by’ [Cooperrider’s] speech.” Bright v. Gallia County, 753 F.3d
639, 653 (6th Cir. 2014) (quoting Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010)).
15The district court cited Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (upholding grant of
summary judgment where the adverse action occurred two to five months after employee filed EEOC and OCRC
charges) and Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022) (upholding grant of summary
judgment where passage of three months between employee’s complaint and his termination was a “firm indicator
of a lack of a causal link”).

-- 22 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 23
Cooperrider alleges that he “made ongoing posts and other speech critical of the
Governor and others . . . starting in November, 2020 and through March 24, 2022.” Appellant
Br. at 20; R. 1 (Compl. at ¶¶ 13–14) (Page ID #4). The enforcement action began on November
25, 2020. R. 1 (Compl. at ¶ 18) (Page ID #5). Cooperrider therefore claims that “mere days”
passed between his protected speech and the adverse action. Appellant Br. at 20. Whether that
claim is true is a question of fact inappropriate for resolution at this stage.
We conclude that the complaint succeeds in stating a First Amendment retaliation claim.
In coming to the opposite conclusion, the district court, by finding that almost all of
Cooperrider’s factual allegations were “conclusory,” R. 26 (Mem. Op. and Order I at 13) (Page
ID #421), fundamentally misapplied the pleading standard as articulated in Iqbal. That case and
its progeny in this court stand for the proposition that we need not accept as true “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,
556 U.S. at 678. The district court applied that proposition to find that the facts alleged in the
complaint “amount[ed] to nothing more than a ‘formulaic recitation of the elements’” of a First
Amendment retaliation claim. R. 26 (Mem. Op. and Order I at 14) (Page ID #422) (quoting
Iqbal, 556 U.S. at 681). But the complaint contained far more than a mere recitation of the
elements of Cooperrider’s claim. It contained a number of factual allegations as to Defendants’
knowledge of Cooperrider’s highly critical speech and their decision to pursue an enforcement
proceeding against Brewed in retaliation for that speech. Whether those allegations should be
believed is a question of fact inappropriate for resolution at the pleading stage.16
Having concluded that the complaint successfully states a First Amendment retaliation
claim, we next address whether the right at issue was clearly established at the time of the
alleged violation. Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). In the
context of a motion to dismiss, “[t]he test is whether, reading the complaint in the light most
favorable to the plaintiff, it is plausible that an official’s acts violated the plaintiff’s clearly
16As we observed in Mediacom Southeast LLC v. BellSouth Telecommunications, Inc., “[t]he district
court’s construction of Fed. R. Civ. P. 12(b)(6)—crediting the defendant’s, rather than the plaintiff’s version of
facts—unduly raises the pleading standard beyond the heightened level of Iqbal and Twombly, forcing the plaintiff’s
well-pleaded facts to be not only plausible, but persuasive. That is not the appropriate burden at this stage of the
litigation.” 672 F.3d 396, 400 (6th Cir. 2012). Similarly, here, the district court did not uniformly construe the
complaint in the light most favorable to the plaintiff in denying his First Amendment claim.

-- 23 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 24
established constitutional right.” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 562–63
(6th Cir. 2011). “The law is well settled in this Circuit that retaliation under color of law for the
exercise of First Amendment rights is unconstitutional.” Zilich v. Longo, 34 F.3d 359, 365 (6th
Cir. 1994). And we have “clearly stated that private citizens have a First Amendment right to
criticize public officials and to be free from retaliation for doing so.” Holzemer, 621 F.3d at 520.
We therefore conclude that the complaint plausibly alleges that Beshear, Perry, and Duke
violated Cooperrider’s clearly established right to criticize the state government without
retaliation. Accordingly, we reverse the district court’s grant of qualified immunity to Beshear,
Perry, and Duke as to Cooperrider’s First Amendment retaliation claim.
b. Substantive Due Process
Cooperrider contends that Beshear, Perry, and Duke violated his substantive-due-process
rights by arbitrarily depriving him of his property—i.e., Brewed’s alcohol license—despite the
intervening changes in Kentucky law that Cooperrider contends “completely foreclosed any of
the actions taken by Appellees after June [28], 2021.” Appellant Br. at 22 (emphasis omitted).17
The district court determined that the complaint failed to state a plausible claim that the
enforcement action was unconstitutionally arbitrary. R. 26 (Mem. Op. and Order I at 23) (Page
ID #431). We agree.
“The Due Process Clause of the Fourteenth Amendment protects citizens from
governmental deprivation of ‘life, liberty, or property, without due process of law.’” Kerchen v.
Univ. of Mich., 100 F.4th 751, 763 (6th Cir. 2024) (quoting U.S. Const. amend. XIV, § 1). The
doctrine of substantive due process commands that “governmental deprivations of life, liberty or
property are subject to limitations regardless of the adequacy of the procedures employed.”
Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (citation omitted). Among
other things, substantive due process “protects individuals against deprivations based on
17Cooperrider also alleges “disparate treatment” in that DABC continued to pursue the enforcement action
against Brewed while settling other, similar cases such that he was unconstitutionally treated differently than
similarly situated businesses. Appellant Br. at 22 (citing Paterek v. Village of Armada, 801 F.3d 630 (6th Cir.
2015)). But it is the Equal Protection Clause, not the Due Process Clause, that “safeguards against the disparate
treatment of similarly situated individuals as a result of government action.” Paterek, 801 F.3d at 649. Cooperrider
does not raise an equal-protection claim. We therefore disregard Cooperrider’s argument as to his alleged disparate
treatment.

-- 24 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 25
‘arbitrary and capricious’ action,” or, in other words, “behavior from state actors that ‘shock[s]
the conscience.’” Kerchen, 100 F.4th at 763 (first quoting Bowers v. City of Flint, 325 F.3d 758,
763 (6th Cir. 2003)) (then quoting Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003)).
“When the conduct in question has been taken by an executive officer, the action violates
substantive due process only if it can be characterized as ‘arbitrary, or conscience shocking, in a
constitutional sense.’” Handy-Clay, 695 F.3d at 547 (quoting County of Sacramento v. Lewis,
523 U.S. 833, 847 (1998)). We have stated that “this characterization applies to ‘only the most
egregious official conduct, . . . conduct that is ‘so brutal and offensive that it [does] not comport
with traditional ideas of fair play and decency.’” Id. at 547–48 (first quoting Lewis, 523 U.S. at
846) (then quoting Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). This standard “sets a high
bar,” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014), and we have been careful to
emphasize that it “does not impose constitutional liability on all state actors who simply cause
harm,” Kerchen, 100 F.4th at 763.
Here, Cooperrider’s claim is that Beshear, Perry, and Duke “flagrantly ignored Kentucky
state law” in continuing the enforcement action against Brewed despite the intervening passage
of legislation. Appellant Br. at 23. Cooperrider plausibly pleaded the deprivation of a
protectable interest under the Constitution, that is, the revocation of Brewed’s alcohol license.
See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435 (6th Cir. 2005) (holding that a
holder of a liquor license has a constitutionally protected property interest in the license). The
question before us is therefore whether Beshear’s, Perry’s, and Duke’s “alleged role[s] in this
deprivation amounted to conscience-shocking behavior.” Kerchen, 100 F.4th at 763.
Even viewing the complaint in the most favorable light, we conclude that Cooperrider
fails to allege that Beshear, Perry, or Duke engaged in constitutionally arbitrary or conscience-
shocking conduct. Assuming that the three directed DABC to initiate the proceeding, the
decision to engage in disciplinary action against a state-licensed establishment found to be in
violation of state law does not shock the conscience. And the continuation of the enforcement
proceeding after the passage of HB1, HR 77, and HB192—particularly where it is unclear
whether any of the legislation was retroactive—“does not sink to the level of conscience-
shocking state action.” Gerber v. Herskovitz, 14 F.4th 500, 508 (6th Cir. 2021).

-- 25 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 26
“Where governmental action does not deprive a plaintiff of a particular constitutional
guarantee or shock the conscience, that action survives the scythe of substantive due process so
long as it is rationally related to a legitimate state interest.” Valot v. Se. Loc. Sch. Dist. Bd. of
Educ., 107 F.3d 1220, 1228 (6th Cir. 1997). At this stage of the litigation, Cooperrider “bear[s]
the burden to show that Defendants’ decision was not rationally related to a legitimate state
interest.” Id. He fails to carry that burden. As Beshear, Perry, and Duke all posit, Kentucky has
a legitimate governmental interest in regulating the sale of alcoholic beverages within its borders.
City of Newport v. Iacobucci, 479 U.S. 92, 96 (1986). The enforcement proceeding against
Brewed was based upon two independent violations of state alcohol regulations: Brewed’s
disregard of the Governor’s COVID-19 public-safety orders and Cooperrider’s disorderly
conduct. R. 23-3 (Emer. Susp. Order at 1–2) (Page ID #344–45). Defendants therefore had a
rational basis for pursuing the enforcement action. Because the complaint fails to state a
substantive-due-process claim, the district court correctly granted Beshear, Perry, and Duke
qualified immunity as to this claim.
c. Procedural Due Process
Finally, Cooperrider argues that he was afforded constitutionally inadequate process with
respect to the deprivation of Brewed’s alcohol license. Appellant Br. at 24. The district court
determined the complaint failed to allege a plausible procedural-due-process claim. R. 26 (Mem.
Op. and Order I at 20) (Page ID #428). We agree.
To establish a procedural-due-process claim in a § 1983 action, “plaintiffs must establish
three elements: (1) that they have a life, liberty, or property interest protected by the Due Process
Clause of the Fourteenth Amendment . . . , (2) that they were deprived of this protected interest
within the meaning of the Due Process Clause, and (3) that the state did not afford them adequate
procedural rights prior to depriving them of their protected interest.” Hahn v. Star Bank, 190
F.3d 708, 716 (6th Cir.1999). As discussed above, Cooperrider’s claim satisfies the first two
prongs of this test because, in revoking Brewed’s liquor license, the government deprived him of
property in which he had a constitutionally protected right. See Keego Harbor, 397 F.3d at 435.
The only question before us is whether Cooperrider was afforded adequate process prior to the
deprivation.

-- 26 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 27
Cooperrider does not dispute that he received notice and an opportunity to be heard prior
to the revocation of Brewed’s alcohol license. See R. 1 (Compl. at ¶ 31) (Page ID #8)
(acknowledging that Cooperrider was granted a hearing in front of the DABC prior to the
revocation of Brewed’s license). Cooperrider nevertheless argues that he was denied adequate
process because Defendants’ “personal animus permeated the end decision, rendering the result
[of the hearing] invalid.” Appellant Br. at 24. In support of this argument, Cooperrider cites
Williams v. Pennsylvania, a case in which the Supreme Court held that “under the Due Process
Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal
involvement as a prosecutor in a critical decision regarding the defendant’s case.” 579 U.S. 1, 8
(2016). There, the Court found a procedural-due-process violation where a state supreme court
justice, who as a district attorney had given approval to seek the death penalty against an
individual, failed to recuse himself and participated in the state supreme court’s decision to
reverse a state postconviction court’s grant of relief. Id. at 14. In so finding, the Court pointed
to its prior holdings that “an unconstitutional potential for bias exists when the same person
serves as both accuser and adjudicator in a case.” Id. at 8 (citing In re Murchison, 349 U.S. 133,
136–37 (1955)).
Williams is materially distinguishable. Here, although the complaint alleges that Beshear,
Perry, and Duke directed the enforcement action against Brewed, it fails to allege that any of the
three were involved in adjudicating the proceeding. In fact, Cooperrider admits that “there are
no claims asserted against the hearing officer” who adjudicated the revocation hearing.
Appellant Br. at 26. And the complaint fails otherwise to allege that any adjudicatory official
had “significant, personal involvement in a critical decision in [Cooperrider’s] case g[iving] rise
to an unacceptable risk of actual bias.” Williams, 579 U.S. at 14.18 The complaint therefore fails
to state a plausible claim of any procedural-due-process violation. The district court properly
18To the extent that Cooperrider’s procedural-due-process claim stems from the alleged personal animus of
Woods and Taylor, as discussed in Part II.B.1.b, all claims against Woods and Taylor in their individual capacities
are barred by the doctrine of absolute immunity.

-- 27 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 28
granted qualified immunity to Beshear, Perry, and Duke as to Cooperrider’s procedural-due-
process claim.19
C. Claims Against Defendants in their Official Capacities
We next turn to Cooperrider’s claims against Defendants in their capacities as officers of
the Commonwealth of Kentucky. Cooperrider seeks injunctive relief in the form of an order
directing Defendants to cease the alleged ongoing violation of his First Amendment and due-
process rights. But in his complaint, Cooperrider identifies only one alleged ongoing violation:
the continued seizure of Brewed’s alcohol license. The district court was therefore correct to
dismiss Cooperrider’s official-capacity First Amendment and procedural-due-process claims.
1. Sovereign Immunity
The district court held that the doctrine of sovereign immunity barred Cooperrider’s First
Amendment and procedural-due-process claims against all Defendants in their official capacities.
R. 26 (Mem. Op. and Order I at 7) (Page ID #415). We review de novo a district court’s finding
that a defendant is entitled to sovereign immunity. Stanley v. W. Mich. Univ., 105 F.4th 856, 863
(6th Cir. 2024).
The Eleventh Amendment to the United States Constitution bars actions “against states
unless they consent to be sued or Congress, pursuant to a valid exercise of its power,
unequivocally expresses its intent to abrogate sovereign immunity.” Ashford v. Univ. of Mich.,
89 F.4th 960, 969 (6th Cir. 2024). That bar also applies to “state officers acting in their official
capacity” and “entities acting on behalf of the state.” Id. And “[a]lthough the text does not
explicitly say so, Eleventh Amendment immunity precludes suits brought against a State by its
own citizens.” Stanley, 105 F.4th at 863.
19In conjunction with his argument that Cooperrider fails to state either a procedural- or substantive-due-
process claim, Governor Beshear argues that, even if Cooperrider had “set forth plausible due process claims,” we
should abstain from adjudicating Cooperrider’s due-process claims under the doctrine of Younger abstention.
Beshear Br. at 29–31 (citing Younger v. Harris, 401 U.S. 37 (1979)). According to Beshear, if we were to find
“error in the District Court’s ruling that Appellants have not raised cognizable procedural and substantive due
process claims, any such error is harmless because Younger abstention applies.” Id. at 31. But we find no error in
the district court’s rulings as to Cooperrider’s due-process claims. Accordingly, we need not reach this final point.

-- 28 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 29
There are exceptions to the sovereign-immunity bar, including, as relevant here, the
narrow exception recognized in Ex parte Young, 209 U.S. 123 (1908). That exception provides
that “suits against state officials seeking equitable relief for ongoing violations of federal law are
not barred by the Eleventh Amendment.” Mich. Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862,
867 (6th Cir. 2000). “But the Ex parte Young exception applies only when a plaintiff seeks and
clearly alleges ‘prospective’ equitable relief to stop ‘a continuing violation of federal law.’”
Josephson, 115 F.4th at 782 (quoting Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tenn., 63
F.4th 510, 515 (6th Cir. 2023)). As a result, we “need only conduct a ‘straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,
645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S 261, 296 (1997)).
We agree with the district court that sovereign immunity bars Cooperrider’s First
Amendment retaliation and procedural-due-process claims against Beshear, Perry, Duke,
Newton, Woods, and Taylor in their official capacities. The alleged violations underlying both
claims have concluded. With respect to the First Amendment claim, Defendants “finished”
retaliating against Cooperrider for his speech when they permanently revoked Brewed’s alcohol
license, and the complaint fails to allege any anticipated future acts of retaliation. With respect
to the procedural-due-process claim, the allegedly inadequate process of which Cooperrider
complains—that is, the process afforded him prior to the revocation of Brewed’s license—
concluded when the license was revoked. The complaint does not allege the ongoing violation of
his First Amendment or procedural-due-process rights.
We also agree with the district court that sovereign immunity does not apply to bar
Cooperrider’s substantive-due-process claim. “[S]tate officials may commit ‘ongoing’ violations
when they unconstitutionally retain possession of a person’s identifiable property.” Mikel v.
Quin, 58 F.4th 252, 257 (6th Cir. 2023). Here, the complaint alleges that Defendants violated
Cooperrider’s substantive-due-process rights by revoking Brewed’s alcohol license and seeks
prospective relief in the form of the reissuance of that license. That allegation falls squarely
within the Ex parte Young exception.

-- 29 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 30
2. Substantive Due Process
Because Cooperrider’s substantive-due-process claim falls within the Ex parte Young
exception, the doctrine of sovereign immunity does not bar Cooperrider from pursuing injunctive
relief against Defendants in their official capacities if he plausibly states a claim of the violation
of his substantive-due-process rights. As discussed in Part II.B.2.b, however, the complaint fails
to state adequately a substantive-due-process claim. So the district court properly dismissed
Cooperrider’s substantive-due-process claim against Defendants in their official capacities.
III. CONCLUSION
The district court correctly determined that Newton, Woods, and Taylor were entitled to
the protection of absolute quasi-prosecutorial and quasi-judicial immunity. It also correctly
determined that Beshear, Perry, and Duke were entitled to the protection of qualified immunity
for Cooperrider’s due-process claims because the complaint failed to state a plausible claim of
any due-process violation. And it correctly applied the doctrine of sovereign immunity to bar
Cooperrider’s claims against all Defendants in their official capacities. But the district court
erred in determining that Cooperrider failed to state a plausible First Amendment retaliation
claim and in granting qualified immunity to Beshear, Perry, and Duke on that claim.
We therefore AFFIRM the district court as to its dismissal of Newton, Woods, and
Taylor on the basis of absolute immunity; as to its grant of qualified immunity to Beshear, Perry,
and Duke on Cooperrider’s procedural- and substantive-due-process claims; and as to its
dismissal of Cooperrider’s claims against all Defendants-Appellees in their official capacities.
But we REVERSE the district court as to its dismissal of Beshear, Perry, and Duke on qualified-
immunity grounds as to Cooperrider’s First Amendment retaliation claim and REMAND for
further consideration consistent with this opinion.

-- 30 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 31
____________________________
CONCURRENCE / DISSENT
____________________________
THAPAR, Circuit Judge, concurring in part and dissenting in part. If the First
Amendment means anything, it means citizens have a right to criticize the government. But
when Andrew Cooperrider spoke out against COVID-19 restrictions, the government broke that
cardinal rule. It took away his ability to earn a living—all because it didn’t like his speech.
I join much of the majority’s analysis. But I write separately because I respectfully
disagree with its decision to grant absolute immunity to Taylor and Woods.
I.
The idea that the First Amendment should protect a person’s right to criticize the
government isn’t new. At the Founding, states ratified the Bill of Rights because they wanted to
protect citizens from government persecution. The debates about ratification prove this point.
To Federalist supporters of the Constitution, there was no need to protect specific rights. 2 The
Debates in the Several State Conventions on the Adoption of the Federal Constitution 337–47
(Jonathan Elliot ed., 1827) (statements of James Wilson). Why? The Constitution granted the
government only express powers, which didn’t include the ability to censor private citizens. But
Anti-Federalists disagreed. They feared that the federal government might overreach and try to
censor ideas it didn’t like. See David Yassky, Eras of the First Amendment, 91 Colum. L. Rev.
1699 (1991). So they persuaded the Federalists to include an amendment protecting a person’s
ability to speak out against the federal government. Id. After all, even the Federalists agreed
that people would continue to disagree. As James Madison put it in Federalist No. 10, “[a]s long
as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will
be formed.” The Federalist No. 10, at 73 (James Madison) (Clinton Rossiter ed., 2003). Over
the last two centuries, that ideal has guided courts’ interpretation of the First Amendment. See
Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
Explicitly political speech, as Judge Bork explained, is always protected. Id. at 26.

-- 31 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 32
Since the Founding, some of our nation’s most regrettable moments have come when the
government ignored the First Amendment’s constraints. One early black mark came just a
decade after states ratified the Constitution. When citizens criticized President John Adams, the
Adams administration indicted Americans under the Sedition Act. Wendell Bird, New Light on
the Sedition Act of 1798: The Missing Half of the Prosecutions, 34 L. & Hist. Rev. 541, 544
(2016). Representative Matthew Lyon was the first victim. He published two letters to
newspaper editors attacking President Adams’ “continual grasp for power” and his unbounded
thirst for “ridiculous pomp, foolish adulation, and selfish avarice.” Francis Wharton, State Trials
of the United States During the Administrations of Washington and Adams 333 (Burt Franklin
ed., 1970). Lyon’s political speech resulted in a political prosecution and a conviction. While
Lyon and his compatriots lost the battle against censorship, they soon won the war. The
indictments enraged legislators throughout the young country, inspired the Kentucky and
Virginia Resolutions, and sparked a groundswell of support for free speech. And the American
people ousted President Adams and relegated the Sedition Act to the dustbin of history. See
Frank Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 907 (1989) (discussing
President Jefferson’s subsequent pardons for all individuals convicted under Alien and Sedition
Acts).
Another shameful moment came as America barreled towards civil war. Taking a page
from the Adams administration, authorities in the South prosecuted individuals who criticized
slavery. In one such incident, North Carolina convicted Reverend Daniel Worth for circulating a
book that spoke out against slaveowners. Case of Rev. Daniel Worth, N.Y. Times, Apr. 5, 1860,
https://www.nytimes.com/1860/04/05/archives/case-of-rev-daniel-worth-conviction-and-
sentence-of-imprisonment.html. The Reverend faced imprisonment for his speech. Michael
Kent Curtis, The 1859 Crisis over Hinton Helper’s Book, the Impending Crisis: Free Speech,
Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68
Chi.-Kent L. Rev. 1113, 1159 (1993). Although a North Carolina jury found Worth guilty,
history vindicated his cause. Slavery and suppressing speech went together. As Frederick
Douglass observed, “Slavery cannot tolerate free speech.” Frederick Douglass, “A Plea for
Freedom of Speech in Boston,” Dec. 9, 1860. Persecuting people who spoke out against slavery
was wrong then, and in history’s cold light, appears even more abhorrent now.

-- 32 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 33
All in all, American history shows that those who suppress critical speech are often on
the wrong side of the Constitution. It’s easy to think that we would never repeat yesterday’s sins
today. Perhaps because it seemed so far-fetched, for much of the last century, government
censorship was relegated to law-school hypotheticals. For example, then-Associate Justice
William Rehnquist once hypothesized what would happen if the government tried to crack down
on reports related to a spreading pandemic. William H. Rehnquist, The First Amendment:
Freedom, Philosophy, and the Law, 12 Gonz. L. Rev. 1, 15–17 (1976). While he wasn’t sure
how courts would rule, he explained such repression would be “stark and dramatic,” and was
thankful courts hadn’t had to confront such an issue. Id. at 17. Justice Rehnquist figured that the
government’s “real motive” would be to cover up its own mistakes and repress those who
pointed them out. Id.
II.
Enter Andrew Cooperrider. As the majority notes, Cooperrider owns Deans Diner, LLC,
which does business as “Brewed.” Brewed is a small business that sells coffee and beer. It’s a
place where people come together to talk, drink, and enjoy one another’s company.
So when Kentucky Governor Andy Beshear issued executive orders that forced
businesses to close during COVID, Brewed and Cooperrider were hit hard. Cooperrider couldn’t
serve his patrons. And with no patrons, Cooperrider couldn’t earn a living. For many white-
collar workers, Governor Beshear’s COVID restrictions offered an opportunity to fire up Zoom
and work from home. For Cooperrider, like so many other small business owners and blue-
collar workers, those restrictions threatened his ability to earn a living.
Cooperrider took to social media to criticize the government’s policies. He didn’t like
that the Commonwealth of Kentucky shut down businesses, sent police officers into churches to
block Easter Sunday celebrations, and silenced protestors. In his view, COVID didn’t warrant
closing restaurants and shuttering bars. He criticized many state officials for saying otherwise.
His civic involvement was deep and passionate. He even tried to institute a citizen campaign
against the governor.

-- 33 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 34
According to Cooperrider, the state government didn’t appreciate his dissenting views.
So Kentucky sought to strip Cooperrider’s alcohol license because he allegedly hadn’t complied
with executive orders prohibiting indoor dining during COVID. Cooperrider alleges that the
government not only knew about his comments but came after him and his livelihood because of
them. And he says that although the government settled similar disagreements over COVID
restriction compliance with other individuals, it refused to settle with him because of his critical
comments. Ultimately, even though the initial hearing officer didn’t recommend revoking
Cooperrider’s license, the Kentucky Department of Alcoholic Beverage Control disagreed.
Kentucky stripped Cooperrider and Brewed of the ability to serve alcohol.
III.
Despite the persecution Cooperrider faced, the majority relies on a theory of absolute
immunity to find that Cooperrider can’t hold two state executive officials responsible for their
actions. But the majority’s wrong to do so: Absolute immunity applies to judicial, not executive
officials.
A.
Absolute judicial immunity is strong but necessary medicine. Indeed, for more than a
century, American courts have recognized that the need to protect “judicial independence” and
reduce “vexatious litigation” about judges’ motives can merit a break from the general principle
that each man is liable for his own wrongdoing. Judicial immunity is “as old as the law, and its
maintenance is essential to the impartial administration of justice.” Randall v. Brigham, 74 U.S.
(7 Wall.) 523, 536 (1869). It’s important because such immunity prevents litigation about
judges’ motives, preserves “judicial independence,” and avoids “vexatious litigation.” Bradley
v. Fisher, 80 U.S. (13 Wall.) 335, 348, 354 (1872). Thus, for generations, courts have found that
judicial immunity applied to only judges and those acting as judges in courts, like officers
conducting courts-martial. See Scott A. Keller, Qualified and Absolute Immunity at Common
Law, 73 Stan. L. Rev. 1337, 1357–58 (2021). It’s true that executive officers had other
immunities. See id. at 1358. But judicial immunity is a stiff tonic for a particular ill—not one
that courts lightly apply to people outside the judiciary.

-- 34 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 35
Here, though, the majority opinion takes a different approach. In sizing up the actions of
two executive officials in Kentucky’s Department of Alcoholic Beverage Control (Taylor and
Woods)—who aren’t judges—the majority reasons that both officials should receive “quasi-
judicial” immunity.
The majority’s reasoning suggests that any official, from any branch of government,
could enjoy judicial immunity if he looks enough like a judge.1 But that’s not how American
law treats executive officers or defines judicial immunity.
B.
The Supreme Court has set out a multi-factor test to determine whether individuals
deserve absolute immunity. A court is supposed to probe several elements, including: (a) the
need to ensure that the individual can perform his functions without harassment or intimidation;
(b) the presence of safeguards that reduce the need for private damages actions to control
unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent;
(e) the adversary nature of the process; and (f) the correctability of error on appeal. Butz v.
Economou, 438 U.S. 478, 512 (1978); Cleavinger v. Saxner, 474 U.S. 193, 202 (1985). All told,
the Court has explained that these factors help us assess how similar the relevant actor is to a
judge—and whether he should enjoy absolute immunity. Cleavinger, 474 U.S. at 202.
Like many balancing tests, courts applying Butz and Cleavinger consider both the
number of factors supporting a particular side and make a holistic evaluation of a party’s
situation. See, e.g., Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 597 F. App’x
342, 352 (6th Cir. 2015).
1Contrary to the majority’s view, our precedent doesn’t demand we regularly extend absolute immunity
outside the judiciary. Maj. Op. at 11 n.5. The Supreme Court has explained that it has been “quite sparing in [its]
recognition of absolute immunity,” and has declined “to extend it any further than its justification would warrant.”
Burns v. Reed, 500 U.S. 478, 487 (1991) (citations omitted). While there’s no doubt our caselaw has at times
recognized quasi-judicial immunity, the mere fact that we’ve said some officials deserve quasi-judicial immunity in
the past doesn’t mean we need to say these actors do, too. Instead, we should follow the Court’s guidance: officials
who seek “absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing
that public policy requires an exemption of that scope.” Butz v. Economou, 438 U.S. 478, 506 (1978). Judicial
immunity is the exception, not the rule, and requires a strong showing from the parties claiming judge-like
protections. Burns, 500 U.S. at 487. Applying those principles, courts must be careful before extending such
immunity.

-- 35 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 36
Here, the factors indicate that neither Woods nor Taylor deserves absolute judicial
immunity.
1.
Understanding why requires a brief overview of the state agency and proceedings at
issue. Woods and Taylor are executive officials in Kentucky’s Department of Alcoholic
Beverage Control. At the time, Woods was the malt beverage administrator and Taylor was (and
still is) the Commissioner, which means they’re two of the three members on the Department’s
three-member board. (The third member, the distilled spirits administrator, isn’t at issue.)
As board members, Woods and Taylor wield significant powers. Relevant here, they can
revoke alcohol licenses for licensees who violate state statutes or regulations. These violations
include selling illegal beverages on licensed premises, making false statements in a license
application, failing to pay license fees, being convicted of a felony or a misdemeanor attributable
to the use of intoxicating beverages, not paying excise taxes, operating or permitting the
operation of gambling on licensed premises, or selling drugs on licensed premises. Ky. Rev.
Stat. Ann. § 243.500.
When revoking a license, the board must give the licensee a statement of the causes for
its proposed revocation. Id. § 243.520. The board can revoke a license only after a hearing is
held in accordance with Kentucky’s general rules for agency hearings. See id. § 13B.125. Once
an order of revocation is final, the Board must give notice to the licensee and owner of the
licensed premises. Id. § 243.530. Then, the licensee must turn over his license. Id.
How do Woods and Taylor fit into this case? Together, they issued the final order
revoking Cooperrider’s license. And Taylor issued the emergency suspension order that
originally deprived Cooperrider of his alcohol license.
2.
Woods and Taylor don’t merit judicial immunity. Why? Three out of six Cleavinger
factors cut in Cooperrider’s favor. A fourth arguably does as well. All told, Woods and Taylor
serve as prosecutor and decisionmaker, aren’t safe from political influence, and don’t follow

-- 36 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 37
precedent. Thus, both by counting factors and through a holistic analysis, these individuals
aren’t much like judges at all.
Start with the first factor. Courts assess the need to ensure that the individual can
perform his functions without harassment or intimidation. Cleavinger, 474 U.S. at 202. Here,
there’s no dispute that state officials making alcohol licensing decisions should be able to do
their jobs without facing harassment. They decide cases that “are every bit as fractious as those
which come to court.” Butz, 438 U.S. at 513. So the first factor cuts against Cooperrider.
Next, consider the second factor, the presence of safeguards that reduce the need for
private damages to control unconstitutional conduct. Here, there are some safeguards. There’s a
right to discovery, to compel witnesses, and to conduct cross-examination. See generally Ky.
Rev. Stat. Ann. § 13B.080. That’s significant. But, just as in Cleavinger, board members like
Woods and Taylor are “not truly independent.” 474 U.S. at 206. Why? The board, the same
body responsible for prosecuting violations of state laws and regulations, decides whether those
alleged violations have actually taken place. In other words, the board serves as both prosecutor
and decisionmaker. And, as in Cleavinger, that means the “members [have] no identification
with the judicial process of the kind and depth that has occasioned absolute immunity.” Id.
Thus, this factor tilts towards Cooperrider.2
So does the third prong. Here, the question is whether Woods and Taylor have
“insulation from political influence.” Id. at 202. Courts analyzing whether someone is insulated
from political influence apply a functional approach. See, e.g., Williams v. City of Montgomery,
742 F.2d 586, 589 (11th Cir. 1984). They look at whether the individuals are appointed, who
makes the appointments, and whether the appointees serve for a defined period or at the pleasure
of a political actor. See id. Here, the governor appoints the board members. Ky. Rev. Stat. Ann.
§ 241.015. What’s more, the beverage administrator and commissioner serve at the governor’s
pleasure and can be removed without cause.3 Id. § 63.080. And the beverage administrator
2While the majority asserts that a “multitude” of safeguards protect litigants, Maj. Op. at 16 n.10, the fact
that a political appointee can override a neutral decisionmaker who tried to use those safeguards indicates the
protections don’t count for much.
3In addition, Cooperrider alleges that the governor can reverse board determinations.

-- 37 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 38
serves at the commissioner’s pleasure. They lack the same safeguards against political influence
Cleavinger prioritized. As in Cleavinger, the board isn’t a “neutral and detached” hearing body
because it’s made up of individuals appointed and removable at will by the governor. 474 U.S.
at 203 (citation omitted). What’s more, Cooperrider alleges that the board overrode the hearing
officer, and neither Woods nor Taylor have rebutted that point on appeal or provided transcripts
from the hearing itself. Thus, taking Cooperrider’s allegation at face value, the license
revocation process here wasn’t free of politics.
The fourth prong also favors Cooperrider. See id. at 202. In Butz, the Court explained
that precedent is one feature of the judicial process that “tend[s] to enhance the reliability of
information and impartiality of the decisionmaking process.” 438 U.S. at 512. In Kentucky, the
Department conducts revocation proceedings “in accordance with KRS Chapter 13B.” Ky. Rev.
Stat. Ann. § 241.060(6). Chapter 13B, in turn, does not mention precedent as a relevant rule of
decision. What’s more, precedent played no role in the proceedings here. Thus, unlike when
precedent is vital to underlying proceedings, the dispute here lacked a key “check[] on malicious
action” by the board members. Butz, 438 U.S. at 512.
The fifth prong cuts against Cooperrider. Here, courts look at whether the administrative
process is adversarial. Cleavinger, 474 U.S. at 202. This one is. Why? Because an individual’s
right to notice, chance to respond and present testimony, cross-examine witnesses, and so on, are
all indicators of adversariness. Id. at 206. And here, Cooperrider had the chance to do all those
things. Thus, the process was adversarial.
Finally, courts consider whether any error was correctable on appeal. Cooperrider’s case
presents a close call on this prong. While some judicial review of the board’s decision is
available, it is “confined to the record” absent fraud or misconduct. Ky. Rev. Stat. Ann.
§ 13B.150. Thus, claims of bias, conflict of interest, and prejudice can’t be examined by a
reviewing court unless they’re in the record made before the board. And while our court has
noted in other cases that the availability of judicial review is material, the court’s review there
wasn’t “confined to the record.” See Flying Dog Brewery, 597 F. App’x at 352. Or the process
in question had considerable procedural protections within the administrative agencies
themselves, such as a board comprised of independent decisionmakers. See Hughes v. Duncan,

-- 38 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 39
93 F.4th 374, 380 (6th Cir. 2024). Those protections are absent here. All told, this factor is a
close call, but tilts towards Cooperrider.
On balance, three of the Butz and Cleavinger factors favor Cooperrider, two cut against
him, and one is a close call. In such a circumstance, we “call this close question in favor” of
Cooperrider. Flying Dog, 597 F. App’x at 352.
3.
Rather than apply Cleavinger, the majority turns to Watts v. Burkhart. 978 F.2d 269 (6th
Cir. 1992) (en banc).4 But Watts is not to the contrary. There, our en banc court considered
whether quasi-judicial absolute immunity protected members of a state medical licensing board
that revoked a physician’s license. We conducted an exhaustive survey of caselaw about quasi-
judicial immunity dating to 1771. Id. at 272. And, applying Cleavinger’s factors, we concluded
that the medical board consisted of “independent professionals” who are “at least as independent,
one would assume, as state judges.” Id. at 276. Thus, absolute immunity protected the medical
licensing board.
Watts involves a different state, different board, and different rules. In each case, we
must conduct the Cleavinger analysis anew. Two of Watts’ factors are relevant here. Start with
the first factor, which Watts said required looking at whether someone is “akin to” a judge. Id. at
278. The administrators here don’t look much like judges. In the past, courts have reserved that
label for officials who have removal protections, serve fixed terms, and aren’t employees of a
party to the case. See, e.g., Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1422 (6th Cir. 1996).
Here, both Taylor and Woods are state employees—subordinate to the governor. They don’t
have removal protections and don’t serve fixed terms. Thus, they don’t look much like judges at
all. What’s more, merely focusing on the power to sit at the helm of administrative hearings
4While the majority views Watts as applying a hard-and-fast test, see Maj. Op. at 13 n.6, Watts just applied
the test laid out in Cleavinger. After all, as an intermediate appellate court, the Watts court couldn’t have departed
from Supreme Court precedent. Agostini v. Felton, 521 U.S. 203, 207 (1997). Nor did Watts purport to do that.
Instead, after analyzing and applying Cleavinger, it merely remarked in passing on a test the First Circuit set out in
Bettencourt v. Bd. of Registration In Med. of Com. of Mass., 904 F.2d 772 (1st Cir. 1990), which it viewed as
consistent with Cleavinger. Watts, 978 F.2d at 278. And, at bottom, this court can’t depart from the Supreme
Court’s clear direction that we should apply Cleavinger.

-- 39 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 40
risks expanding absolute immunity’s strong medicine. And at a minimum, courts should not
extend absolute immunity to state officials in the absence of “the most convincing showing that
the immunity is necessary.” Imbler v. Pachtman, 424 U.S. 409, 434 (1983) (White, J.,
concurring in judgment). Taylor and Woods haven’t made that showing.5
Watts’s third prong also cuts towards Cooperrider, although it remains a close call. The
majority says “a number of” regulatory safeguards protect individuals subjected to Kentucky’s
proceedings. Maj. Op. at 14. These include notice and a right to legal counsel, among others.
See Ky. Rev. Stat. §§ 13B.020(1), 13B.050(3)(f), 13B.080(4), 13B.090(1), 13B.110(1)–(4),
13B.120(3). These are real procedural safeguards. But here, Taylor and Woods aren’t neutral
hearing officers. Woods, after all, reports to Taylor, and both report to the governor. There’s no
“structure insuring the adjudicator’s independent judgment on the evidence, free from outside
influences.” Joseph v. Patterson, 795 F.2d 549, 558 (6th Cir. 1986), abrogated on other grounds
by Kalina v. Fletcher, 522 U.S. 118 (1997). A litany of procedural safeguards related to a
hearing don’t mean much if the hearing doesn’t affect the decision. Thus, the majority is wrong
to focus on a “careful, multi-level procedural structure.” Maj. Op. at 16 n.8.
Taken together, a close look at Kentucky’s procedures suggests that, even under the
majority’s reading of Watts, Cooperrider has shown the officials shouldn’t get absolute
immunity.
4.
Taylor and Woods claim that since they’re also partly prosecutors, they are entitled to the
absolute immunity our court normally affords to prosecutors. But Taylor and Woods are not
entitled to that immunity either. While there’s little doubt that prosecutors can enjoy absolute
immunity if they’re responsible for initiating prosecution, that immunity applies only if their
5In response, the majority attempts to differentiate between whether an official “seems” like a judge or
“act[s]” like a judge. Maj. Op. at 14 n.7. However, the relevant test is whether, applying Cleavinger, a particular
official measures up. Here, because these officials are appointed by the governor, are removable, and don’t have set
terms, they fail the Cleavinger test. Hughes v. Duncan is not to the contrary. 93 F.4th 374, 381 (6th Cir. 2024).
There, this court considered and explained that the Tennessee parole board was “comprised of seven members
serving six-year terms. Although the members are appointed by the governor, the Board is ‘autonomous in
structure.’” Id. at 380 (quotation omitted). Here, the board is not comprised of members serving terms for a definite
number of years, and while they may serve up to four years, they are removable at will.

-- 40 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 41
“decision to proceed with a case is subject to scrutiny in the proceeding itself.” Butz, 438 U.S. at
516. As the Supreme Court outlined in Butz, a respondent needs the chance to “present his
evidence to an impartial trier of fact and obtain an independent judgment as to whether the
prosecution is justified.” Id. But that didn’t happen here, since Taylor and Woods were also the
final deciders as to whether Cooperrider could keep his alcohol license. Taylor and Woods
served as judge, jury, and enforcer. That combination of executive and judicial functions is
concerning, to say the least. Cf. The Federalist No. 47, at 298 (James Madison) (Clinton
Rossiter ed., 2003). To cloak its exercise with absolute immunity would be alarming.
IV.
Besides its ruling on absolute immunity, I join the majority opinion. The majority
correctly follows Supreme Court precedent in (1) holding that the district court erred in finding
that the defendants deserved qualified immunity and (2) finding that Cooperrider didn’t plausibly
plead a substantive due process violation under Supreme Court precedent. I write separately to
emphasize several points.
A.
First, qualified immunity. Qualified immunity is less potent than absolute immunity. It
doesn’t protect officials from suits seeking injunctive relief, and even when it does apply, it
shields defendants from liability for monetary damages only if “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Clearly established” means that the
law is so clear at the time of an incident that every reasonable officer would understand that his
conduct broke the law. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). While qualified
immunity isn’t quite as robust as the absolute variety, it’s still potent.
1.
I agree with the majority that the defendants do not enjoy qualified immunity. But I
disagree with the idea that timing has anything to do with the decision. While the majority
correctly holds that the district court erred in finding that the defendants deserved qualified

-- 41 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 42
immunity, it’s important to remember that courts have the power to evaluate qualified immunity
claims at the motion to dismiss stage.
In recent years, the timing of qualified immunity determinations has generated
considerable confusion. On the one hand, judges have explained that an officer’s “entitle[ment]
to qualified immunity is a threshold question to be resolved at the earliest possible point.”
Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003). And we’ve said the motion to dismiss stage
is just such a moment. Brown v. Giles, 95 F.4th 436, 441 (6th Cir. 2024). On the other hand,
other judges have reasoned that the appropriate point is “usually summary judgment and not
dismissal.” See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015). The majority falls
into this latter camp, asserting that it’s inappropriate to make such a determination at the motion
to dismiss stage.
But that’s incorrect. How so? Qualified immunity isn’t a factual question. Instead, at
the motion to dismiss stage, a court should accept the facts in the plaintiff’s complaint as true and
consider whether the defendant violated clearly established constitutional rights. See Kollaritsch
v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 626 (6th Cir. 2019); Marvaso v. Sanchez, 971
F.3d 599, 614 (6th Cir. 2020) (Nalbandian, J., dissenting). That’s a classic legal issue, which is
why courts can review it on an interlocutory appeal. See, e.g., Johnson v. Jones, 515 U.S. 304,
317 (1995). Thus, the mere fact that a pleading sits at the motion to dismiss stage doesn’t mean
this court can’t resolve a qualified immunity defense. It can—and often should.
B.
Finally, Cooperrider’s substantive due process claim. After the majority applied the
doctrines of absolute, qualified, and sovereign immunity, it determined Cooperrider had only one
claim left: his argument that the defendants ignored state law and deprived him of a protectable
liberty interest in violation of the Constitution when they took away his alcohol license. This
claim survived this far because qualified immunity only shields the defendants from monetary
damages, and Cooperrider seeks injunctive relief on this front. Flagner v. Wilkinson, 241 F.3d
475, 483 (6th Cir. 2001).

-- 42 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 43
The majority was correct to conclude that Cooperrider’s substantive due process claims
fall short. Why? He failed to plead a claim that the enforcement scheme was unconstitutionally
arbitrary or conscience-shocking.
I agree that Cooperrider failed to state a claim on which relief could be granted, but write
separately to emphasize that substantive due process is a judge-made doctrine that, if used at all,
should apply only to rights well-grounded in American history and tradition.
Substantive due process, of course, is an oxymoron. Leave it to lawyers to figure that a
constitutional provision regulating the process by which substantive rights can be infringed
places substantive constraints on government. As John Hart Ely famously remarked, substantive
due process is “a contradiction in terms—sort of like ‘green pastel redness.’” John Hart Ely,
Democracy and Distrust 18 (1980). Yet according to the judge-made doctrine of substantive due
process, some government conduct is illegal regardless of whether the Fifth or Fourteenth
Amendment’s procedural guarantees were violated. Washington v. Glucksberg, 521 U.S. 702
(1997). Although the Supreme Court has found that plaintiffs may bring claims based on
violations of their supposed substantive due process rights, any deviation from the Constitution’s
text should be minimal. That’s why any substantive due process right must be “deeply rooted in
this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Id. (citations
omitted). Asserted “rights” that fail this test—much less those that are “entirely unknown in
American law”—don’t pass muster. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215,
231 (2022). A claim’s “novelty” provides “reason enough to doubt that ‘substantive due
process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 (1993). The Glucksberg framework
provides a key limiting principle for an atextual doctrine that’s not grounded in law. Cf. L. W. by
& through Williams v. Skrmetti, 73 F.4th 408, 416 (6th Cir. 2023).
V.
During the coronavirus pandemic, Americans turned to their national, state, and local
governments for help. We “sought answers less from ourselves, our friends, and our neighbors
and more from central authorities.” Neil Gorsuch & Janie Nitze, How Covid-19 Restrictions

-- 43 of 44 --

No. 24-5351 Cooperrider et al. v. Woods et al. Page 44
Created Winners and Losers, National Review, https://www.nationalreview.com/2024/08/how-
covid-era-government-restrictions-damaged-the-rule-of-law/.
While fifteen days to slow the spread sounded harmless enough, for Cooperrider, the
resulting months-long lockdowns were anything but. Federal and state officials forced millions
of Americans to forgo the things that make life healthy, happy, and fulfilling—like going to
coffeeshops and bars. In doing so, the lockdowns caused mental health disorders,6 increased
speech delays in children,7 and led to a dramatic rise in chronic conditions that, combined with
non-COVID factors, killed more Americans under the age of 45 than the virus.8
On the economic front, the government’s response to COVID harmed people like Mr.
Cooperrider. While white-collar folks could work from the comfort of their living room, service
workers and others were forced to stay home, and thus, effectively laid off.9 Understandably
frustrated with the inequity and what he believed were the government’s disastrous policies,
Cooperrider spoke out. And if the government retaliated against him for it, he should have his
day in court.
* * *
With these caveats, I respectfully concur in the majority’s opinion except as to its
analysis of whether Woods and Taylor enjoy absolute immunity.
6Ibtihal Ferwana & Lav R. Varshney, The Impact of COVID-19 Lockdowns on Mental Health Patient
Populations in the United States, Nature (Mar. 7, 2024).
7Poll Shows Increase in Hearing, Speech, and Language Referrals, More Communication Challenges in
Young Children, ASHA (Apr. 30, 2023).
8Staff of H. Comm. On Oversight, 118th Cong., Rep. on After Action Review of the COVID-19 Pandemic:
The Lessons Learned and a Path Forward 218 (2024).
9Charles Bliam & Joel Kotkin, The Virus’s Uneven Path, City Journal (May 29, 2020), available at
https://www.city-journal.org/article/the-viruss-uneven-path.

-- 44 of 44 --