Ohio Municipal Attorneys Association “Dude, Where’s Your Car?”Municipal Liability Update 2005
James A. Climer, Esq. MAZANEC, RASKIN, RYDER & KELLER Co. L.P.A. Co., LPA jclimer@mrrlaw.com December 16, 2005FEDERAL CLAIMS SECTION 1983 42 U.S.C. §1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. FIRST AMENDMENT Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. City of San Diego v. John Roe, 125 S.Ct. 521 (2004) A San Diego police officer was discharged for offering homemade, sexually explicit videos for sale on an on-line auction site. In particular, the officer’s videos contained footage of him in an unaffiliated police uniform engaging in sexual parodies of police work. The officer sued the police department, the City and his supervisors under §1983, alleging that his off duty, non-work related activities could not be grounds for terminating his employment. The trial court granted summary judgment to the City. Plaintiff appealed and the decision was reversed by the Ninth Circuit. The U.S. Supreme Court reversed the Ninth Circuit, holding that the police officer’s activities, though outside of the work place, and purportedly about subjects not related to his employment, had injurious effects on the mission of his employer and were not entitled to First Amendment protection. Further, the officer’s speech did not touch on “a matter of public concern,” and thus, was not subject to protection under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). Cutter v. Wilkinson, 125 S.Ct. 2113 (2005) Ohio state prisoners sued prison officials alleging denial of their right to practice their various religions due to unwarranted concerns about security in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The State officials filed a motion to dismiss which was denied by the District Court. On appeal, the State of Ohio Department of Rehabilitation and Correction challenged the constitutionality of the Act, claiming that RULIPA impermissibly advanced religion in violation of the First Amendment’s Establishment Clause. The Sixth Circuit Court of Appeals agreed with the State and reversed the trial court decision. Subsequently, the United States Supreme Court granted certiorari. Reversing the Sixth Circuit, the U.S. Supreme Court held that RULIPA did not violate the Establishment Clause. The Court found that RULIPA was compatible with the Establishment Clause because, while the RULIPA forbids the government from imposing a substantial burden on the exercise of religion of persons residing in or confined to an institution, RULIPA allowed for the government to impose burdens on the religious practice through “the least restrictive means” pursuant to “a compelling governmental interest.” The Court, therefore, found that RULIPA allowed courts to take into account the burdens a requested accommodation may impose on non-beneficiaries and the governmental institutions. Further, the Court held that RULIPA did not impermissibly advance religion by giving greater protection to religious rights than to other constitutionally protected rights and did not afford religious prisoners rights superior to those of non-religious prisoners or encourage prisoners to become religious in order to enjoy greater rights. City of Littleton, Colorado v. Z. J. Gifts D-4 LLC, 124 S.Ct. 2219 (2004) A Littleton, Colorado ordinance required that certain “adult” businesses apply for and be granted licenses. Under the ordinance, a decision by the City to deny a license could be appealed to the state district court. Z.J. Gifts declined to apply for a license and filed a facial challenge to the constitutionality of the ordinance contending that it amounted to an unconstitutional prior restraint on speech. Upon review, the United States Supreme Court rejected the City’s argument that it was sufficient for the ordinance to provide assurances of speedy access to courts for the review of adverse licensing decisions without also providing assurances of speedy court reviews. However, the Court found that the ordinance conditioned the issuance of an adult business license on simple, content-neutral, nondiscretionary criteria which were unlikely to lead to censorship. Accordingly, the Court held that Colorado’s normal judicial review processes satisfied the speedy review requirement and upheld the statute. Mezibov v. Allen , 411 F.3d 712 (6th Cir. 2005) During a criminal trial, defense counsel Mezibov filed a number of motions on behalf of his client. The motions were denied by the court and Mezibov’s client was ultimately convicted by a jury. After the criminal trial, the prosecuting attorney made several comments to the press critical of Mezibov and his handling of the case. Mezibov filed a §1983 action against the prosecuting attorney claiming that the comments were defamatory and violated the First Amendment by retaliating against Mezibov for filing the motions in the defense of his client in the criminal trial. The Sixth Circuit affirmed the trial court’s dismissal of Mezibov’s case, stating “we think the District Court was correct in its basic conclusion: in filing motions and advocating for his client in court, Mezibov was not engaged in free expression; he was simply doing his job. In that narrow capacity, he voluntarily accepted almost unconditional restraints on his personal speech rights, since his sole raison d’etre was to vindicate his client’s rights. For these reasons, we hold in the context of the courtroom proceeding, an attorney retains no personal First Amendment rights when representing his client in those proceedings.” Prime Media v. City of Brentwood, 398 F.3d 814 (6th Cir. 2005) The Sixth Circuit held that an ordinance limiting billboards to six feet in height and 120 square feet in overall size was a content-neutral restriction that was narrowly tailored to advance the City’s legitimate interests in reducing visual blight and aiding traffic safety. Furthermore, the City promulgating such a regulation need not justify particular size restrictions over others. Finally, the City was not required to meet a “less restrictive means” test applicable to other forms of speech protected by the First Amendment. Tucker v. City of Fairfield, 398 F.3d 457 (6th Cir. 2005) Union workers filed for a temporary restraining order to stop the enforcement of an ordinance prohibiting the placement of “structures” on public rights of way without prior City approval. The union workers wanted to use a 12-foot inflatable rat balloon as a means of protesting allegedly unfair labor practices. The rat balloon was temporarily secured to the ground with stakes to keep it from tipping over. After the rat balloon was used for the first time, the City amended its ordinances to specify that a structure could be "any object, whether permanent or temporary, including, but not limited to, non-public signs, that is constructed, erected or placed in a stationary location on the ground or is attached to or placed upon an object constructed, erected, or placed in a stationary location on the ground." The City’s express intent in amending its ordinances was “to further clarify that objects such as the inflatable rat are prohibited from the public right of way, whether placed there on a temporary or permanent basis.” The trial court granted a motion for a preliminary injunction prohibiting the enforcement of the ordinance. Upon review, the Sixth Circuit found that the trial court did not abuse its discretion in granting the preliminary injunction. Although permanent objects placed on public grounds have not generally been protected by the First Amendment, temporary and easily moveable objects are protected. Further, the Court observed that the City ordinance did not appear narrowly tailored as applied to the rat balloon. The Court further found that the City’s asserted governmental interest in keeping the public right of way clear and preserving the aesthetics of the community was not undermined by the presence of the inflatable rat balloon. American-Arab Anti Discrimination Committee v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005) The Sixth Circuit invalidated a City ordinance that required 30-days’ advance notice to secure a parade permit. The Court found that the ordinance’s imposition of the 30-day requirement on any group having a common purpose or goal violated the First Amendment because it was not narrowly tailored to serve the City’s significant interests in traffic safety and crowd control. The ordinance was also unconstitutional because it rendered participants in a march along public rights of way strictly liable if they proceeded without a permit, thereby chilling speech of participants who were forced to risk an arrest and/or fine for unknowingly and in good faith participating in a permitless march. Simasko v. County of Sinclair, 417 F.3d 559 (6th Cir. 2005) Plaintiff Assistant Prosecutor worked for the County for 18 years. After Plaintiff refused to support the Chief Assistant Prosecutor in a judicial race, Plaintiff received a performance evaluation for the first time from the Chief Assistant Prosecutor and one of her supporters, the County Attorney. Plaintiff was subsequently demoted and his pay was cut. Plaintiff treated the demotion as a constructive discharge and resigned. Plaintiff subsequently brought a §1983 action against the County, the County Attorney and the Chief Assistant Prosecutor, for violation of his First Amendment Rights to free speech and association. The Sixth Circuit reversed the District Court’s denial of qualified immunity to the County employees. The Court opined that Plaintiff held a County position that involved policy making and confidentiality. While the First Amendment prohibits the politically-motivated dismissal of many governmental employees, Plaintiff could be terminated for political reasons without violating the First Amendment due to the nature of his position. Further, to the extent that Plaintiff could be considered politically neutral, his termination still would not have violated the First Amendment. The Court held that the government had an interest in appointing politically loyal employees to certain positions and that such interests converged with its interest in operating an efficient work place when dealing with policy making employees. Taylor v. Keith, 338 F.3d 639 (6th Cir. 2003) In reviewing an employment retaliation claim, the Sixth Circuit addressed the issue of whether a police officer’s use of force report, which was undisclosed to the public and contained no allegation of excessive force, was protected speech under the First Amendment. In particular, the report contained details of injuries that strongly suggested the use of excessive force by another officer. The Court found that the report was “fairly considered as relating to any matter of political, social or other concern to the community” because it brought to light conduct that warranted further investigation. As such, the report touched on a matter of public concern and was protected by the First Amendment. The fact that the officer who drafted the report was speaking in his capacity as a public employee did not remove First Amendment protection, despite previous case law to the contrary. The Sixth Circuit pointed out that the context of the speech is relevant but not determinative of whether the speech is protected. Graham v. City of Mentor, 118 Fed.Appx. 27 (6th Cir. 2004). Former police officers sued a city, its police chief, its city manager and one current and one former city council president pursuant to §1983, alleging violation of their rights under the First and Fourteenth Amendments. In particular, the former police officers, while still on the force, made public allegations of corruption in the police department and claimed that they suffered retaliation as a result. The Sixth Circuit Court of Appeals held that police officers’ speech to the media on alleged corruption in the police department touched on matters of public concern. However, the police department's interest in maintaining an effective police force, free from internal division outweighed the officers' right to speak on the matters of public concern in this particular case, especially given the officers’ disruptive tactics in communicating with the press and seeking out documents to support heir claims. Blau v. Fort Thomas Public School District, 401 F.3d 381 (6th Cir. 2005) Parents challenged a school dress code on First and Fourteenth Amendment grounds. The Sixth Circuit held that the dress code did not violate the First Amendment where it did not suppress any particular message the student wanted to convey but simply interfered with her preferred mode of dress. Further, a school dress code will be evaluated under a rational basis test for substantive due process purposes, since parents do not have a fundamental right to exempt their children from school dress codes. FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Brosseau v. Haugen, 543 U.S. 194 (2004) The Supreme Court reviewed a §1983 claim of excessive force made by a suspect who was shot in the back while fleeing from a police officer. The police officers were responding to a 911 call reporting a fight at Plaintiff’s residence. The officers had knowledge that Plaintiff had a felony no-bail warrant out for his arrest on drug and other offenses. Officers arrived to find Plaintiff involved in a fight with other individuals, but Plaintiff immediately escaped. Plaintiff eventually ran back to the residence, procured his car, and attempted to drive away. One of the officers ordered Plaintiff to get out of the car, but was ignored. The officer attempted to grab the keys from Plaintiff’s car, but Plaintiff succeeded in starting the car and proceeded to drive away. The police officer fired her weapon, shooting through the rear driver’s side window and hitting Plaintiff in the back. The officer later explained that she shot Plaintiff because she was “fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Plaintiff’s] path and for any other citizens who might be in the area.” The Supreme Court specifically analyzed whether there was clearly established law regarding an officer shooting a fleeing suspect in a vehicle, for the purposes of qualified immunity. Reviewing relevant case law, the Court found that it was far from clear that the officer’s conduct violated the Fourth Amendment, therefore, the officer was entitled to qualified immunity. Hibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) The State of Nevada enacted a stop and identify law, requiring that an individual properly stopped by a police officer may be ordered to identify himself. Further, an individual’s refusal to identify himself pursuant to an officer’s request could result in the arrest of the individual. The Supreme Court found that such a requirement does not violate the Fourth Amendment. The Court recognized that it is well established that an officer may ask a suspect to identify himself during a Terry stop, it was an open question whether a suspect can be arrested and prosecuted for refusal to answer. The Court held that Terry principles permit a state to require a suspect to disclose his name in the course of a Terry stop. Further, the Court speculated that answering a request to disclose an individual’s name is not likely to violate the Fifth Amendment’s prohibition on self-incrimination because such a request is insignificant and would only be incriminating in unusual circumstances. However, the Court left open the question of whether the Fifth Amendment privilege would apply in a situation where an individual furnishing his identity would give the police a link in the chain of evidence needed to convict the individual of a separate offense. Illinois v. Caballes, 543 U.S. 405 (2005) The United States Supreme Court held that a dog sniff during a legal traffic stop does not violate the Fourth Amendment, even where there is no suspicion of drugs. The Court stated that the use of a well-trained narcotics dog that usually does not expose non-contraband items and that detects contraband that would otherwise remain hidden from public view during a lawful traffic stop generally does not implicate legitimate privacy interests protected by the Fourth Amendment. Thornton v. United States, 541 U.S. 615 (2004) A police officer attempted to pull Defendant over but before he could do so, Defendant parked and got out of his car. The police officer then parked, accosted Defendant, and arrested him for possession of drugs found in Defendant’s pocket. Incident to the arrest, the officer searched Defendant’s car and found a handgun under the driver’s seat. Defendant was charged with federal drug and firearm violations. The Defendant filed a motion to suppress but the District Court found the vehicle search valid under New York v. Belton, 453 U.S. 454 (1981) which permits the warrantless search of an automobile when a police officer makes a lawful custodial arrest of the automobile’s occupant. Defendant appealed his conviction, arguing that Belton was limited to situations where the officer initiated contact while the arrestee was still in his or her car. The Fourth Circuit affirmed. The United States Supreme Court also affirmed, finding that the Fourth Amendment allows an officer to search a vehicle’s passenger compartment as a contemporaneous incident of arrest even when the officer does not make contact with the suspect until the suspect has already left the vehicle. The Court emphasized that the Fourth Amendment allows police to search a car’s passenger compartment incident to a lawful arrest of both “occupants” and “recent occupants.” While an arrestee’s status as a “recent occupant” may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it does not turn on whether he was inside or outside of the car when the officer first initiated contact with him. Although not all contraband in the passenger compartment is likely to be accessible to a “recent occupant”, the need for a clear rule, readily understood by police and not depending on differing estimates of what items were or were not within an arrestee’s reach at any particular moment, justified for the Court its clarification of the rule announced in Belton. See also: United States v. Herndon, 393 F.3d 665 (6th Cir. 2005) Devenpeck v. Alford, 543 U.S. 146 (2004) The United States Supreme Court reviewed the “closely related” rule regarding the establishment of probable cause as developed by the First, Fifth and Ninth Circuits. The “closely related” rule states that the offense establishing probable cause must be closely related to, and based on the same conduct as, the offense identified by the arresting officer at the time of the arrest. The rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer. It also eliminates from the probable cause assessment facts that play no part in the officer’s expressed subjective reason for making the arrest and offenses that are not “closely related” to that subjective reason. The Supreme Court invalidated the “closely related” rule, holding that the state of mind of the arresting officer is irrelevant to the establishment of probable cause. It ultimately held that if probable cause existed to charge the suspect for any arrestable offense at the time of the arrest, the arrest would be valid. Muehler v. Mena, 125 S.Ct. 1465 (2005) The U.S. Supreme Court found that police officers acted reasonably by detaining a resident in handcuffs for two to three hours while the search of a home was in progress, given that the warrant sought weapons and evidence of gang membership. Even though the resident did not pose a threat to the officers and they eventually released him, the Court stated that detention of the resident was “surely less intrusive than the search itself,” and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. The Court recognized the substantial reasons law enforcement officers have in detaining an occupant during a search, including: “preventing flight in the event that incriminating evidence is found;” “minimizing the risk of harm to the officers;” and, facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.” (citing Michigan v. Summers, 452 U.S. 692 (1981). United States v. Banks, 540 U.S. 31 (2003) Police officers, executing a search warrant on a residence for cocaine, called out “police, search warrant,” rapped on the front door hard enough to be heard by officers at the back door, waited 15-20 seconds with no response, and then broke open the door. The resident, who was in the shower at the time, testified that he heard nothing until the crash of the door. The resident was arrested when drugs were found in the home by the police. The trial court denied the resident’s motion to suppress the drugs found during the search, rejecting the resident’s argument that the officers waited an unreasonably short time before forcing entry in violation of the “knock and announce” rule expressed in Fourth Amendment case law and 18 U.S.C. §3109. Upon review, the Ninth Circuit reversed, stating that, in cases where no exigent circumstances exist, officers are required to obtain an explicit refusal of admittance or lapse of “an even more substantial amount of time” before forcing entry by destruction of property. The U.S. Supreme Court reversed rejecting the idea that the Fourth Amendment imposes strict formalities in the execution of a warrant. The Court found that the officers reasonably believed that the cocaine they sought might be destroyed had they waited any longer than 15-20 seconds prior to entry. While reasonable execution of search warrants must be “fleshed out” on a case-by-case basis, the Supreme Court has largely avoided categories and protocols for searches. “Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of the circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.” U.S. v. Pennington, 328 F.3d 215 (6th Cir. 2003) The Sixth Circuit reviewed the denial of a criminal defendant’s motion to suppress crack cocaine found pursuant to the execution of a search warrant. Officers testified that, in the course of executing a search warrant, they banged on the front door and yelled “Memphis Police Department, Search Warrant.” Subsequently, the officers heard the footsteps of someone running away from the door and, 8-10 seconds after their announcement, the police forced the door open. Focusing on the time the officers waited before breaking the door down, the Court stated that no rigid rule applied to the number of seconds that must expire under the “knock and announce” rule between a demand for admittance by the police and forced entry into a home. Citing to prior Sixth Circuit rulings, the Court stated “the amount of time officers need to wait before entering a home necessarily depends on how much time it would take for a person in the house to open the door.” In this case, where officers heard someone running away from the door, a reasonable officer would consider that his request for entry had been effectively denied and that the person inside was taking some type of evasive action, including the possible destruction of contraband. Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005) Plaintiff filed a §1983 action against a City and two of its officers for unlawful entry into his house in violation of the Fourth Amendment and several other causes of action. The trial court concluded that all of Plaintiff’s federal claims were barred under Heck v. Humphrey, 512 U.S. 477 (1994), in which the U.S. Supreme Court held that §1983 plaintiffs may not advance claims that, if successful, would necessarily imply the invalidity of a prior conviction or sentence. The Sixth Circuit reversed, holding that Plaintiff’s claim of unlawful entry under the Fourth Amendment did not conflict with Plaintiff pleading no contest to a misdemeanor assault charge. United States v. Yoon, 398 F.3d 802 (6th Cir. 2005) Police officers staked out Defendant’s apartment and observed a confidential informant enter the apartment whom they had equipped with a wire. Previously, Defendant had invited the informant to his apartment. When the police heard the informant asking Defendant about quantities of marijuana and the logistics of shipping the drugs, the police forcibly entered the apartment. After finding both marijuana and cocaine on the premises, the police arrested the Defendant. Defendant moved to suppress the evidence found in the apartment because it was obtained without a warrant. The District Court denied the motion. The Sixth Circuit, relying upon the doctrine of “consent once removed,” affirmed the District Court’s decision. The Circuit held that police may make a warrantless entry into a subject’s home if 1) an undercover agent or informant entered at the express invitation of someone with authority to consent; 2) at that point probable cause for a search and/or arrest is established; and 3) the agent or informant immediately summons help from other officers. The scope of any search conducted is limited by the scope of the original consent to enter absent the existence of other exceptions to the warrant requirement. Knott v. Sullivan, 418 F.3d 561 (6th Cir. 2005) An automobile search warrant that incorrectly identifies the make, model, license number and vehicle identification number of the automobile is invalid. Further, reliance by officers on such a defective warrant precluded qualified immunity with respect to a §1983 action. “Many of the errors contained in the search warrant…would be obvious to even the most casual of observers. Indeed, the [officers’] execution of the warrant, notwithstanding these errors, reveals either a blatant disregard for the terms of the warrant or utter negligence in failing to check that the vehicle to be searched is the one identified in the warrant.” Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005) High school students subjected to strip searches after another student reported a theft of money brought a §1983 action against a police officer and teachers involved in the searches. The Sixth Circuit found that the searches violated the students’ constitutional rights, in particular because the violation of privacy (strip searches) far exceeded the school’s interest in retrieving stolen money. The Court held, however, that the Defendants were entitled to qualified immunity because federal case law on this point, particularly Sixth Circuit case law, did not “truly compel” the conclusion that the searches under the circumstances were unreasonable. FIFTH AMENDMENT No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Chavez v. Martinez, 538 U.S. 760 (2003) Plaintiff police suspect brought a §1983 claim against a police sergeant alleging that the sergeant violated his constitutional rights by subjecting him to coercive interrogation after Plaintiff had been shot by another police officer. Plaintiff arrived at a scene where police were investigating suspected narcotics activity. At some point, police conducted a pat down of Plaintiff and discovered a knife in Plaintiff’s waistband. An altercation ensued wherein Plaintiff allegedly drew a gun from a police officer’s holster and pointed it at the officers. In response, another officer shot Plaintiff several times causing Plaintiff severe injuries. Subsequently, Sgt. Chavez arrived at the scene with paramedics. Sgt. Chavez accompanied Plaintiff to the hospital and periodically attempted to interview Plaintiff while in the emergency room. During the interview, in addition to telling Sgt. Chavez “I am dying” and “I am choking,” Plaintiff admitted that he took the gun from the officer’s holster and pointed it at the police. Plaintiff also stated that he used heroin regularly. At no point was Plaintiff given Miranda warnings. However, the police did not charge Martinez with a crime and his answers were never used against him any criminal proceeding. Plaintiff filed suit against Sgt. Chavez, alleging violation of his Fifth Amendment right not to be “compelled in any criminal case to be a witness against himself,” and a Fourteenth Amendment substantive due process right to be free form coercive questioning. On motion for summary judgment, the District Court denied Sgt. Chavez’s defense of qualified immunity and entered summary judgment in favor of Plaintiff. On appeal, the Ninth Circuit Court of Appeals affirmed. On review, the U.S. Supreme Court reversed, finding that Sgt. Chavez was entitled to qualified immunity. First, the Court found that since Plaintiff was not criminally charged or involved in any criminal proceedings, his Fifth Amendment claim failed because Plaintiff was simply not “a witness against himself.” Addressing Plaintiff’s substantive due process claim, the Court found that the Sgt. Chavez’s conduct did not violate any of Plaintiff’s fundamental rights and did not otherwise shock the conscience. Lingler v. Fechko, 312 F.3d 237 (6th Cir. 2002) Defendant police chief interviewed Plaintiff officers of the Seven Hills Police Department in Ohio. Plaintiffs, in an effort to clean up the police station, had previously thrown out some old furniture. The chief discovered the furniture missing and interrogated Plaintiffs suggesting that Plaintiffs had stolen or destroyed City property. After extracting statements from Plaintiffs that they had indeed thrown out the junk furniture, the chief recommended to the mayor that Plaintiffs be suspended for 30 days and that criminal proceedings be initiated against Plaintiffs. These recommendations were rejected and no action was taken against the Plaintiffs. Nevertheless, Plaintiffs filed suit against the Chief under § 1983 for violation of their Fifth Amendment rights. The District Court entered summary judgment on behalf of the Chief, and Plaintiffs appealed. The Sixth Circuit Court of Appeals found that the Plaintiffs’ statements were not used in criminal proceedings against them and, therefore, the Fifth Amendment was not implicated. McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005) A City of Mansfield police officer was interviewed by internal police investigators regarding reports of several officers using scanners to eavesdrop on cell phone and portable phone calls made by citizens (the investigation became known as “scannergate”). During the course of two interviews, the officer made conflicting statements with regards to his own misuse of police scanners and the misuse of police scanners by other officers. As a result of the officer’s answers, the Mansfield Police Department terminated his employment. The information obtained during the officer’s interviews was also conveyed to the Holmes County prosecuting attorney. The prosecuting attorney subsequently charged the officer with falsification, obstruction of official business, and interference with civil rights. After a criminal trial, a jury convicted the officer of two counts of falsification and one count of obstructing official business, premised largely on the introduction of the statements made by the officer during the internal affairs investigations. The officer brought a §1983 action against the police department and several of its officers. In particular, the officer alleged that the police department violated his Fifth Amendment right against self-incrimination by forcing him to undergo interrogation pursuant to the internal affairs investigation and then using those statements against him in a criminal trial. The trial court granted summary judgment to the police department and the officers. The Sixth Circuit Court of Appeals reversed, citing Garrity v. New Jersey, 85 U.S. 493 (1967), holding that the use of a public employee’s compelled incriminating statements in a later prosecution for the conduct under investigation is a violation of the Fifth Amendment. The Court of Appeals found that the officer’s interrogation was clearly coerced, given that failure to cooperate could result in the officer’s termination. As such, the use of that testimony in his criminal trial was improper. Kelo v. City of New London, 125 S.Ct. 2655 (2005) A city’s exercise of eminent domain in furtherance of economic development satisfied the “public use” requirement under the takings clause of the Fifth Amendment. San Remo Hotel v. City of San Francisco, 125 S.Ct. 2491 (2005) Plaintiffs were hotel owners asserting a takings claim against the City based on an ordinance requiring Plaintiffs to pay a $567,000 fee for converting residential homes to tourist’s rooms. Initially, Plaintiffs filed in state court, but that action was stayed when Plaintiffs also filed in Federal court. The Federal trial court granted summary judgment to the City, but the Federal Court of Appeals abstained from ruling on the matter because the pending state action could moot the Federal question. Ultimately, the state court rejected Plaintiff’s various state-law takings claims and Plaintiffs returned to Federal court. At that point, the central issue became whether Plaintiffs’ Federal claims were barred by the Full Faith and Credit Clause since the Federal claims were dependent on issues identical to those previously resolved in the state court. Plaintiffs pointed out that case law interpreting the Fifth Amendment’s takings clause required them to litigate their takings claim in state court before their Federal takings claims would be ripe. They further argued that they would be effectively precluded from obtaining Federal review of their taking claims by the Full Faith and Credit Clause which generally precludes plaintiffs from re-litigating in Federal court issues that have been decided at the state level Accordingly, the San Remo Plaintiffs requested that takings claims be excepted from the Full Faith and Credit Clause. The United States Supreme Court declined to create an exception to the Full Faith and Credit Clause in order to provide a federal forum for litigants seeking to advance Federal takings claims. The Court suggested that Plaintiffs could have narrowed their state claims to allow for remaining issues for Federal review, but did not do so. Further, the Court was not bothered by the possibility that Plaintiffs would necessarily litigate their Federal takings claims in state court. D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir. 2005) Restaurant and bar owners brought an action against the City to declare a City ordinance restricting smoking in enclosed public places as void and unenforceable. The Sixth Circuit found that the owners had failed to establish the City ordinance denied them an economically viable use of the property as is needed to prove that the ordinance affected a regulatory taking. Care Ambulance-Paramedics v. City of Stow, 2003-Ohio-5041 (9th Dist.) The City instituted a licensing scheme requiring private ambulance carriers operating in the City to assume the duty of dispatching emergency medical service vehicles to emergency calls. An ambulance service operator filed a complaint in mandamus requesting that the City initiate eminent domain proceedings to compensate the operator for providing services to the City without compensation as a requirement for obtaining a license. The Ninth District Court of Appeals held that eminent domain proceedings were not required. While the licensing may have caused the operator economic harm, it was not a taking because the operator did not have a constitutionally protected property interest for Fifth Amendment purposes. EIGHTH AMENDMENT Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Gray v. City of Detroit, 399 F.3d 612 (6th Cir. 2005) Decedent was arrested for trespassing and attempted assault. One of the arresting officers testified that he knew decedent was a “mental” who had been arrested before. In custody the following day, decedent appeared agitated, he was talking loudly and ranting, and he proceeded to destroy some of his holding cell, including ripping the phone from the wall and breaking the sink and toilet. Decedent was moved to a suicide cell at the precinct, though decedent had not expressed any suicidal intent. Decedent was no longer aggressive after transferring cells, but did demonstrate “mood swings all day.” Later, decedent complained of chest pains and breathing difficulties and he was moved to a hospital cell. The officers testified that decedent gave no indication of being suicidal, and no one notified personnel of decedent being suicidal. Later that day, decedent was found banging on his cell door and yelling in an agitated state. Decedent already had leg irons on and guards eventually handcuffed him behind his back. About an hour later, decedent was found hanging in his cell by a hospital gown, having slipped his handcuffs under his feet to the front of his body. The source of the hospital gown was unknown. Decedent’s estate filed a §1983 action premised on the Eighth Amendment against the city and the police officer on duty at the time of the suicide. The District Court granted summary judgment to Defendants. On appeal, the Sixth Circuit affirmed, holding that the officer was entitled to qualified immunity since there was no evidence to suggest that the officer actually knew that decedent was at risk of committing suicide. None of decedent’s complaints had been of a physical nature, and none of his behavior had been self injurious. “The only conceivable way that any individual officer would have possibly concluded that [decedent] was a suicide risk was to have obtained and appropriately pieced together the knowledge of every other officer involved in the case.” Further, the Court held that the City was not liable for deliberate indifference, given the absence of obvious and clear indications that decedent was a suicide risk, and the fact that the City’s policies had actually prevented 8 suicide attempts of pretrial detainees held in the facility in the past 20 years. Crocker v. County of Macomb, 119 F.Appx. 718 (6th Cir. 2005) County and police officers are not liable under §1983 for the suicide of a pretrial detainee where detainee did not appear suicidal and, at most, only fit a “profile” for persons most likely to commit suicide. Talal v. White, 403 F.3d 423 (6th Cir. 2005) Plaintiff was an inmate at the Tennessee Department of Corrections with an allergy to tobacco smoke. Plaintiff was housed in a non-smoking unit, but prison officials and inmates regularly smoked in the unit. Plaintiff sued under §1983, alleging that the prison violated his Eighth Amendment rights. The trial court dismissed the Plaintiff’s Eighth Amendment claim, concluding that Plaintiff failed to state a claim upon which relief could be granted. The Sixth Circuit Court of Appeals reversed the trial court’s dismissal of the Eighth Amendment Claim. The Court of Appeals found that Plaintiff had established through medical documentation that he suffered sinus problems and dizziness as a result of being subjected to tobacco smoke. Further, the prison medical staff recommended Plaintiff have a non-smoking cell mate, a recommendation which was ignored. The Court of Appeals also found that Plaintiff’s Complaint was replete with specific examples of the prison officials’ disregard for Plaintiff’s medical condition and his complaints. The Court of Appeals distinguished this case from another case involving imperfect enforcement of a non-smoking policy. Plaintiff’s allegations reflected not only knowledge, but “obdurancy and wantonness” on the part of the correction officials. The Court also remanded the issue of a related retaliation claim made by Plaintiff that was dismissed outright by the trial court. FOURTEENTH AMENDMENT No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Town of Castle Rock vs. Gonzales, 125 S.Ct. 2796 (2005) Plaintiff wife brought a civil rights action against Castle Rock, Colorado and police officers based on the officers’ repeated refusal to enforce a domestic abuse restraining order against her husband. Plaintiff alleged that Defendants’ inaction allowed her husband to kidnap and murder her three small children. Plaintiff claimed that Defendants violated her due process rights because the town’s police department allegedly had an official policy or custom of failing to respond properly to complaints of restraining order violations. The District Court granted a motion to dismiss Plaintiff’s Complaint finding that it failed to state a claim upon which relief could be granted for denial of procedural or substantive due process rights. The Tenth Circuit Court of Appeals affirmed dismissal of the substantive due process claim, but found a cognizable procedural due process claim. Upon review, the United States Supreme Court found no violation of substantive or procedural due process. First, the Court noted that where government officials have discretion to grant or deny a perceived benefit, that benefit is not a protected entitlement for due process purposes. Next, despite mandatory arrest language present in Plaintiff’s restraining order pursuant to Colorado statute (and strong legislative history to back such language), the Court found that the Colorado legislature had not deprived the police of their discretion in deciding whether to arrest an individual for an alleged violation of a restraining order. Given the existence of such police discretion, Plaintiff did not have a property interest upon which to base a due process claim. Bukowski v. City of Akron , 326 F.3d 702 (6th Cir. 2003) Lisa, a 19-year old woman with a mental disability, met a 39-year old man, Leslie Hall, over the internet. At Hall’s prompting, Lisa traveled by taxi and bus from Avoca, Pennsylvania to Akron, Ohio to visit him, without the knowledge of her parents. At Hall’s home, Hall repeatedly raped Lisa. Realizing Lisa had gone, her parents sought to find her and quickly traced Lisa’s e-mails to Hall and discovered his residence. The parents contacted the Avoca police who, in turn, contacted the Akron Police Department. The Avoca police informed the Akron police that Lisa was mentally disabled and 19 years old. Akron police were subsequently dispatched to Hall’s residence and convinced Lisa to come with them to the station. At the station, Officer Urbank assessed Lisa as being somewhat “slow,” but nevertheless felt she had some ability to take care of herself and negotiate the long trip from Avoca to Akron. Upon questioning, Lisa identified Hall as her boyfriend, spoke favorably of him but never indicated how old Hall was, that he had sex with her, or that he hurt her in any way. Further, Lisa indicated that she left Avoca to escape abuse from her parents. Officer Urbank sent Lisa to a victim’s advocate who subsequently determined (based on her interview with Lisa) that Hall posed no risk of harm to Lisa. Next, Urbank told Lisa she could stay at the police station to await her parents or go to a shelter. Lisa requested to be returned to Hall’s residence, and the Akron police complied. Subsequently, Lisa’s parents arrived in Akron and picked Lisa up from Hall’s residence. They learned that Hall had repeatedly raped Lisa, both before and after the police had picked her up. Based on these events, Lisa’s parents (“Plaintiffs”) brought suit on Lisa’s behalf against Defendants City of Akron Police Department, various officers and the city prosecutor for alleged violations of Lisa’s substantive due process rights. Upon appeal after partial denial of Defendants’ motion for summary judgment, the Sixth Circuit found that the Plaintiffs had failed to state a substantive due process claim. The Court found that Lisa did not suffer any injury while in police custody and the Court specifically found that the police had not engaged in any affirmative acts (i.e. state action) that either created or increased the risk that Lisa would be exposed to private acts of violence. By returning Lisa to Hall’s residence, the police placed Lisa in the position that they originally found her, and therefore, did not increase her vulnerability to danger. Schroder v. City of Fort Thomas, 412 F.3d 724 (6th Cir. 2005) The parents of a child killed by a speeding motorist brought a §1983 action against the City alleging substantive due process violations arising from the City’s failure to reduce and/or enforce speed limits. The Sixth Circuit Court of Appeals affirmed the District Court’s grant of summary judgment to the City. Analyzing Plaintiff’s due process claim, the Court stated the general rule that the Fifth and Fourteenth Amendments of the United States Constitution generally confer no affirmative right to governmental aid, even when such aid may be necessary to secure interests in life, liberty, or property which the government itself may not deprive. The Sixth Circuit then reviewed an exception to rule which permits a due process claim when the state creates a perilous situation that renders citizens more vulnerable to danger at the hands of private actors. To establish this type of substantive due process claim, a plaintiff must show: 1) an affirmative act by the government that either created or increased the risk that a plaintiff would be exposed to private acts of violence, 2) a special danger to the plaintiff created by a governmental action (as distinguished from a risk that affects the public at large), and 3) the requisite governmental culpability to establish a substantive due process violation. The Court held that Plaintiffs had failed to meet any of these elements. First, management of speed limits on a street are too attenuated and indirect to count as an “affirmative act” that placed anyone at risk from a state-created peril. Second, the City’s speed limit did not create a “special danger” to a discreet class of individuals, but affected the public at large. Third, Plaintiffs failed to establish the “deliberate indifference” necessary to a substantive due process claim. Barrett v. Steubenville City Schools, 388 F.3d 967 (6th Cir. 2004) A substitute elementary public school teacher was denied permanent employment by the public school where he was teaching because his child attended a private school. The Sixth Circuit found that the teacher’s constitutionally protected right to direct the education of his child was clearly established and the school district could not deny the teacher employment because of the teacher’s exercise of his fundamentally protected right. Warren v. City of Athens, 411 F.3d 697 (6th Cir. 2005) Ostensibly because residents were complaining about increased traffic due to the recent introduction of a Dairy Queen drive thru, the City placed barricades along the adjacent road, rendering the drive thru effectively useless. Plaintiff owners of the Dairy Queen brought a §1983 action against the City and City Prosecutor alleging violation of their constitutional rights, requesting declaratory and injunctive relief. After trial, the District Court permanently enjoined the City from installing the barricades or otherwise restricting access to the Dairy Queen. Upon review, theSixth Circuit sorted through various theories of possible constitutional liability. Ultimately, the Sixth Circuit affirmed the District Court’s injunction, holding that Plaintiffs had established that the City had violated Plaintiffs’ procedural due process rights. In analyzing the procedural due process claim, the Court looked to state law as the source of Plaintiffs’ property rights. Here, the Sixth Circuit observed that the Ohio Supreme Court has long recognized that the right of access (ingress and egress) is especially important to a business abutting a public street, and deprivation thereof amounted to an infringement on a property interest. Next, the Sixth Circuit observed that denial of property requires prior notice and opportunity for a pre-deprivation hearing for due process purposes. In this case, Plaintiffs received notice, but not a pre-deprivation hearing. Given that Plaintiffs showed that the City could have granted them a pre-deprivation hearing and that it was not clear that any state remedies were available to Plaintiffs after the deprivation, the Court found that Plaintiffs had sufficiently established their procedural due process claim to support the permanent injunction. INTERLOCUTORY APPEAL Summers v. Leis, 368 F.3d 881 (6th Cir. 2003) In an interlocutory appeal from the denial of qualified immunity to its Sheriff, a County attempted to invoke the concept of “pendent appellate jurisdiction” to obtain interlocutory review of the denial of its own dispositive motion. In rejecting the County’s appeal, the Court described the limits of pendent appellate jurisdiction as follows: “Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but, may be reviewed on interlocutory appeal if those issues are "inextricably intertwined" with matters over which the appellate court properly and independently has jurisdiction. This circuit has interpreted "inextricably intertwined" to mean that the resolution of the appealable issue "necessarily and unavoidably" decides the nonappealable issue.” (Citations omitted). See also: Crockett v. Cumberland College, 316 F.3d 571 (6th Cir. 2003) POLICY Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2005) A criminal suspect brought a §1983 claim against a city, alleging that an officer acted pursuant to the city’s unwritten policy condoning the use of excessive force against suspects. The suspect pointed to the fact that the police department had reviewed the incident in question and found that the officer was justified in his use of force. The suspect, however, did not point to any other incidents or evidence to suggest that the city had a custom or policy that condoned the use of excessive force. After the city was granted summary judgment, the Sixth Circuit held that a single instance of condoning conduct is insufficient to infer a policy of deliberate indifference for the purpose of establishing a §1983 claim against the city. Monistere v. City of Memphis, 115 F.Appx. 845 (6th Cir. 2004) After a citizen claimed that Plaintiff police officers stole money from a suspect, the City of Memphis initiated an internal investigation of the complaint which included an interview and strip search of the officers accused. Plaintiff officers sued under §1983 for violation of their Fourth Amendment rights. In particular, Plaintiffs contended that the City’s employment of its Inspectional Service Bureau (“ISB”) without the benefit of any written policy that outlined the process by which the ISB was to conduct its investigations, amounted to a “custom” that would serve as the premise for Plaintiffs’ §1983 claim against the City. The trial court denied the City’s Motion for Summary Judgment and entered judgment, upon a jury verdict, in favor of Plaintiff officers. The Appellate Court affirmed, holding that the City’s practice of allowing police investigators to conduct administrative investigations into complaints without any defined parameters was a custom, essentially conveying to the investigator final decision-making authority, and the City’s unwritten custom of allowing its police investigators unfettered discretion to conduct the investigations into police misconduct directly caused the unconstitutional strip searches. TELECOMMUNICATIONS ACT City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453 (2005) An amateur radio operator brought a §1983 action against a city seeking compliance with the Telecommunications Act of 1996 (TCA) as well as an award of damages. The United States Supreme Court held that §1983 does not provide a remedy for alleged violations of the TCA. Accord: State ex rel. Wireless Income Properties v. City of Chattanooga, 403 F.3d 392 (6th Cir. 2005). PRIVILEGES Ross v. City of Memphis, 423 F.3d 596 (6th Cir. 2005) The Sixth Circuit held that a municipality may assert the attorney-client privilege even though its former employee has asserted an advice of counsel defense. STATE LAW CLAIMS I. SB 106 AMENDMENTS TO R.C. CHAPTER 2744 A. PROCEDURES
B. DEFINITIONS
C. POLITICAL SUBDIVISION IMMUNITY EXCEPTIONS
D. EMPLOYEE IMMUNITY EXCEPTIONS 1. The immunity exception for statutory liability relating to political subdivision employees has been amended in a similar fashion. “civil” liability of an employee cannot be construed to exist merely because a responsibility or mandatory duty is imposed upon an employee, because of a general authorization that an employee may sue or be sued, or because the term “shall” is used in a provision pertaining to an employee. Further, civil liability cannot be construed to exist because another statute provides for criminal liability. R.C. §2744.03(A)(6)(c); abrogating Campbell v. Burton (2001), 92 Ohio St.3d 336. E. EMPLOYEE INDEMNIFICATION
F. DAMAGES
II. RECENT OHIO CASES OF INTEREST R.C. Chapter 2744 Issues Governmental Functions – Law Enforcement Estate of Graves v. City of Circleville, 2005-Ohio-929 (4th Dist.) The Circleville Police Department arrested Copley for driving under the influence of alcohol and/or drugs, driving under a suspended license, hit and run, and failing to operate his vehicle within marked lanes. The police impounded Copley’s vehicle but, due to a paperwork error by the police, the vehicle was released to Copley from the private lot where it was stored. The next day, Copley, while intoxicated, drove his vehicle the wrong way on a divided highway striking and killing Plaintiff’s decedent. The decedent’s estate sued claiming that the City failed to perform its statutory duty to retain possession of Copley’s car until his initial court appearance. The City filed a motion for judgment on the pleadings arguing that the impoundment of Copley’s vehicle was a law enforcement activity and therefore an immune governmental function under R.C. Chapter 2744. The Plaintiff argued that the impoundment of the vehicle amounted to the operation of a parking facility, a non-immune proprietary function. The trial court rejected Plaintiff’s argument and granted the motion. The Court of Appeals affirmed. Ironically, given that the City had a statutory duty to keep Copley’s car until the date of his court appearance, the City’s failure to do so amounted to the “performance or non-performance of any law,” a governmental function under R.C. §2744.01. Further, to the extent that the impound law was specifically drafted to prevent accidents and protect people like Plaintiff’s decedent, the situation fell into the “governmental” function category of “provision or nonprovision of police *** services or protection.” R.C. §2744.01(C). Akronex rel. Christman-Resch v. Akron, 2005-Ohio-715 (9th Dist.) City's trapping and euthanization of cats found running at large equated to a law enforcement function, and thus, City's actions were covered by sovereign immunity. Governmental Functions – Roadway Design and Repairs Fodor v. City of Strongsville, 2004-Ohio-6021 (8th Dist.) Plaintiff was injured when the tire of a bicycle she was riding on a public sidewalk lodged in an open seam between a catch basin and the sidewalk. The Eighth District Court of Appeals held that the City was immune, because the open seam was the result of a design defect (a governmental function) and did not fall under the liability exception for nuisances contained in R.C. Chapter 2744. Music Centers, Inc. v. City of Cuyahoga Falls, 2004-Ohio-3703 (9th Dist.) While attempting to repair a deteriorating grate in the sidewalk in front of Plaintiff’s music store, the City discovered that the grate covered a vault under the sidewalk containing water and electrical lines. The City decided that the vault should be filled with concrete for safety reasons. Unfortunately, the concrete broke the walls of the vault, ruptured gas and water lines and caused Plaintiff’s building to be flooded. The City presented evidence that the decision to fill the vault was motivated by concerns that the sidewalk could collapse, and that it was not done for purposes of maintaining the underground utilities. Plaintiff presented no evidence to the contrary. The Ninth District Court of Appeals rejected Plaintiff’s argument that the presence of the water and electrical lines meant that the City was engaged in the non-immune proprietary function of “maintaining a utility.” Instead, the Court held that, in attempting to repair the sidewalk, the City was engaged in a governmental function. Immunity Exceptions – Motor Vehicles Colbert v. City of Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319 Two police officers were tailing a pair of subjects who were suspected of having just completed a drug deal. The officers’ patrol car was struck by a motorist who then sued alleging negligence. The officers argued that their activities qualified as an “emergency call,” which required the motorist to show willful or wanton misconduct in order to hold the city liable under R.C. §2744.02(B)(1). The Supreme Court agreed finding that virtually any call to duty amounts to an “emergency call” regardless of whether it involves an inherently dangerous situation, and it affirmed summary judgment granted to the city. Rutledge v. O'Toole, 2005-Ohio-1010 (8th Dist.) Brunswick police officers transported Plaintiff in a police cruiser after another police department arrested Plaintiff on an outstanding warrant and delivered Plaintiff to Brunswick’s custody. During transport, the Brunswick cruiser was hit by a drunk driver. Plaintiff sued Brunswick for his injuries, alleging negligence on the part of the Brunswick officer. The trial court granted summary judgment to Brunswick, finding that its officers were on an “emergency call” and that the city was therefore immune from liability in the absence of willful or wanton misconduct. The appellate court affirmed finding that transporting Plaintiff constituted an "emergency call" because it was a situation which required a response by the Brunswick officer and was required by his professional obligation. Further, Plaintiff presented no evidence of willful or wanton misconduct. Byrd v. Kirby, 2005-Ohio-1261 (10th Dist.) A collision occurred between a City of Columbus police cruiser and automobile driven by Plaintiff, resulting in injuries to Plaintiff and his daughter and the death of Plaintiff’s wife. On an emergency call, the Columbus officer drove into an intersection against the lights. The officer had the cruiser lights and sirens on and was traveling in excess of the speed limit, though he did slow to check oncoming traffic before entering the intersection. Unseen by the officer, Plaintiff suddenly appeared from the side, colliding with the cruiser. Plaintiff pled no contest to a citation for failure to yield. Plaintiff sued the city and the police officer. The trial court found that the city and the officer were both entitled to immunity. The appellate court affirmed stating that the fact that the officer had his lights and siren on, as a matter of law, indicated that his behavior was neither willful nor wanton. The Court further found that the mere fact that the officer exceeded the speed limits raised no issue of reckless misconduct since Ohio law permits officers on emergency calls to do so. Carder v. Kettering, 2004-Ohio-4260 (2nd Dist.) On an emergency call, a police officer was driving over 80 m.p.h. in a 35 m.p.h. residential zone in an oncoming traffic lane and up a hill that limited his visibility as well as the visibility of oncoming traffic. In a lawsuit arising out of a collision, the appellate court found that a genuine issue of material fact existed as to whether the police officer was reckless in his conduct, even though he was traveling with lights and siren. Fitzpatrick v. Spencer, 2004-Ohio-1940 (2nd Dist.) Reversing a grant of summary judgment to a police officer, the Second District Court of Appeals found that a material issue of fact existed as to whether a police officer’s operation of a cruiser while responding to an emergency call constituted reckless or wanton misconduct. The accident occurred at an intersection where each parties’ view was obstructed by a tractor trailer and a Winnebago. Witnesses offered several conflicting statements as to whether the officer sounded an air horn or slowed down when proceeding through the intersection prior to the accident. Given the conflicting testimony, the Court found that a jury needed to determine whether the measures that the officer took upon entering the intersection were sufficient to protect the public. Snyder v. Townsend, 2005-Ohio-5267 (3rd Dist.) Defendant owned two chickens. Plaintiff was driving on a road running by Defendant’s property and saw the two chickens on the side of the road. Plaintiff slowed down, moved to the center of the road and honked her horn to scare the chickens away. Suddenly, Plaintiff heard a thump and there was one less chicken in the world. Plaintiff and her insurance company sued the Defendant for damage to Plaintiff’s car. Defendant, appealed the trial court’s judgment against him, arguing that Plaintiff failed to maintain an assured clear distance from his chickens in violation of R.C. §4511.21(A). The Third District Court of Appeals pointed out that the Plaintiff’s unrebutted testimony indicated that the two chickens were off to the side of the road when she passed them. The Court stated, “(Plaintiff) subsequently heard something impact her automobile. (Plaintiff’s testimony), in essence, establishes that the smash up was a fowl suicide.” The Court further distinguished the instant case from those cases in which the livestock is traversing the traveled part of the roadway well before impact. The Court then affirmed the trial court’s judgment. Immunity Exceptions – Proprietary Functions Copeland v. City of Cincinnati, 2005-Ohio-1179 (1st Dist. 2005) A child was alleged to have been sexually assaulted by other children in a day camp operated by the City in a City-operated community center. The child’s mother brought a negligence action against the City and its employees. The First District Court of Appeals, reversed summary judgment in favor of the City. In doing so, the Court found that the City was engaged in a “proprietary function” which subjected it to an immunity exception under R.C. Chapter 2744. Without much explanation, the Court distinguished the operation of a day camp from the operation of an indoor recreation facility which is defined as a “governmental function” under statute. Trustees of Nimishillen Twp. v. State ex rel Groffre Investments, 2004-Ohio-3371 (5th Dist.) A Township sanitary sewer line was installed in a way that infringed upon the flow of a storm water sewer line and caused flooding to Plaintiff’s property. The Fifth District Court of Appeals stated that the case involved the maintenance of a sewer system and, therefore, amounted to a non-immune proprietary function under Ohio’s immunity statute. The Court does not, however, explain how it determined the problem to be a maintenance problem rather than a design issue which would be a an immune governmental function. Immunity Exceptions – Nuisances Jenks v. City of Barberton, 2005-Ohio-995 (9th Dist.) Plaintiff, a 79-year old woman, was walking with an exercise class on a sidewalk in the City of Barberton, when she tripped and fell due to a 3-3/4 inch height difference between connecting pieces of sidewalk. The Ninth District found that the defect was open and obvious and that the City’s statutory duty to maintain its sidewalks did not create liability in instances where a defect was open and obvious. The Court also pointed out that while Plaintiff tripped on the defect, 17 other people who Plaintiff was walking with did not, “which indicates that they all noticed and avoided the condition, therefore, [Plaintiff] was responsible for taking appropriate measures to protect herself.” Jones v. City of Kettering, 2005-Ohio-1932 (2nd Dist.) Plaintiff, confined to a wheelchair, complained to the City about the condition of a curb ramp on a street corner. The following day, the City sent a construction inspector to look at the ramp and the inspector determined that the ramp was “potentially dangerous.” Four days later, Plaintiff, having no alternative route, used the ramp and fell from his wheelchair breaking his collarbone. The Second District Court of Appeals held that the City did not violate its duty to keep the sidewalk in repair when it did not immediately make repairs to the ramp. “A city cannot be expected to immediately make repairs to a single curb ramp; it takes time for decisions to be made and implemented.” Hallowell v. County of Athens, 2004-Ohio-4257 (4th Dist.) For the knowledge of a political subdivision’s employee to be imputed to the political subdivision, that knowledge must be within the scope and responsibilities of that particular employee. Plaintiff sustained injuries as a result of a tree branch falling onto a road. A County employee, working for the Solid Waste Department (not the Engineering Department) saw the hazard, but did not report it to anyone else in the County. Plaintiff attempted to link the Solid Waste employees’ knowledge to the County to establish a claim of nuisance. The Fourth District found that since the employee did not work for the Engineering Department, the department normally in charge of addressing such hazards, the knowledge could not be imputed to the County, and therefore the County did not know about the hazard and could not be held liable for failure to remedy the situation. Dolis v. City of Tallmadge, 2004-Ohio-4454 (9th Dist.) Plaintiff, employee of the City Service Department, was hit by a car while directing traffic around a department backhoe which was removing a salt spill from a roadway. Plaintiff filed suit claiming that the City’s supervisors required Plaintiff to direct traffic by himself at night without proper safety equipment. Plaintiff alleged that the City failed to keep the roadway safe, open, in repair, and free from nuisance, and further alleged that the City committed a workplace intentional tort. The Ninth District Court of Appeals found that the City was immune from Plaintiff’s claims because Plaintiff did not establish that the conditions affected the regular and ordinary course of traffic so as to qualify for the nuisance exception listed at R.C. §2744.02(B)(3). Further, even though the City was obligated to safeguard its employees under R.C. Chapter 4101, that Chapter of the Revised Code did not expressly impose liability on political subdivisions and therefore did not implicate the immunity exception to immunity set forth at R.C. §2744.02(B)(5). Supensky v. City of Oakwood, 2005-Ohio-2859 (2nd Dist.) A fifteen-year old girl, goofing off with a group of her friends, grabbed a stop sign pole and swung around it causing the pole to break and fall on her leg. The girl brought an action against the City claiming that the stop sign was a nuisance affecting the sidewalk and roadway. The Second District Court of Appeals affirmed the trial court’s grant of immunity to the City. Specifically, the Court held the exception to immunity for nuisances, R.C. §2744.02(B)(3), only applied in cases involving “ordinary traffic.” The Court agreed that swinging on a stop sign, while perhaps ordinary for teenagers, was not a usual and ordinary means of travel for the purposes of municipal liability. McQuaide v. Board of Commissioners of Hamilton County, 2003-Ohio-4420 (1st Dist.) A teenage driver and eleven of her friends (piled into the same car) decided to “hill hop” their vehicle on a “hump” in a road. The driver had previously passed over the hump at a normal rate of speed without incident, but approached the hump a second time, deliberately driving significantly faster than the posted speed limit. Subsequently, the driver lost control of the vehicle and struck a utility pole. One of the passengers suffered fatal injuries. The decedent’s estate brought an action alleging nuisance against, inter alia, the County. The First District Court of Appeals, affirming summary judgment granted to the County, found that decedent’s estate had failed to establish that the “hump” was a danger to ordinary traffic. The Court pointed out that the driver’s previous encounter with the hump, going at a normal rate of speed, proved that it was not a danger to ordinary traffic. Immunity Exceptions – Negligence on Public Grounds Keller v. Foster Wheel Energy Corp., 2005-Ohio-4821 (10th Dist.) A firefighter brought an action against a City for damages arising from the death of his wife due to asbestos exposure, allegedly from work clothes the firefighter brought home. The Tenth District held that the negligence as well as the injury must occur within or on the grounds of a public building in order to invoke the immunity exception listed at R.C. §2744.02(B)(4). Because the alleged exposure occurred at home, the injury did not occur on public grounds, and the City was immune. Kennerly v. Montgomery County Board of Commissioners, 2004-Ohio-4258 (2nd Dist.) A mother brought a wrongful death action against a county after her son was murdered by a detainee who removed an electronic home monitoring restraint and escaped home detention. The Second District Court of Appeals found that the immunity exception listed at R.C. §2744.02(B)(4) for negligence occurring within or on the grounds of governmental buildings did not apply. The Court held that the exemption for detention facilities governed. Furthermore, the murder did not take place within or on the grounds of a governmental building. Finally, the Court applied the public duty rule and held that decedent’s mother had failed to establish that the County owed her son a special duty. Opatken v. City of Youngstown, 2003-Ohio-1072 (7th Dist.) Plaintiff brought an action against the City for injuries he sustained when he fell down some stairs of an abandoned governmental building. The Court held that the exception to immunity listed under R.C. §2744.02(B)(4) pertaining to negligence that occurs within or on the grounds of buildings used for governmental functions does not apply if the government is not actually using the building. Immunity Exceptions – Statutory Liability Pope v. Trotwood-Madison City School District Board of Education, 2004-Ohio-1314 (2nd Dist.) Following the death of a middle school student during “open gym” the child’s estate brought a negligence action against the school district and the basketball coach that supervised “open gym.” Among other things, the estate alleged that the coach should have been certified in CPR. The estate argued that the coach was trained but not certified in CPR and the school district was therefore in violation of Ohio Administrative Code regulations requiring that coaches have CPR certification. The Court held that the regulation did not expressly impose liability upon the school district as required by the pertinent immunity exception under R.C. Chapter 2477. Vinicky v. Pristas, 2005-Ohio-5196 (8th Dist.) A high school student brought an action against a school board of education alleging, inter alia, civil hazing. Reviewing the Trial Court’s denial of the Board’s motion for judgment on the pleadings, the Eighth District Court of Appeals found that R.C. §2307.44 expressly provides for civil liability against schools for failure to prevent hazing. As civil liability is expressly provided under R.C. §2307.44; Plaintiff’s claims of hazing fall under the exception to immunity pertaining to express imposition of liability on political subdivisions by statute. R.C. §2744.02(B)(5). Thayer v. West Carrollton Board of Education, 2004-Ohio-3921 (2nd Dist.), infra. Dolis v. City of Tallmadge, 2004-Ohio-4454 (9th Dist.), supra Alternative Liability Theories – Intentional Torts Terry v. Ottawa County Board of MRDD, 2002-Ohio-7299 (6th Dist.) Employees of a County MRDD Board filed claims against the Board alleging that it intentionally required its employees to work in an unhealthy workplace that contained toxic substances (mold and sludge). The trial court granted summary judgment to the Board because R.C. Chapter 2744 provides immunity for workplace intentional torts. The Sixth District Court of Appeals upheld the summary judgment reasoning that, intentional conduct aside, the employees were clearly alleging conduct defined as a governmental function R.C. Chapter 2744 for which no exceptions to immunity applied. The Court further observed that a workplace intentional tort does not arise out of the employment relationship and, therefore, the exemption for actions relating to employment matters provided by R.C. §2744.09 did not apply. Thayer v. West Carrollton Board of Education, 2004-Ohio-3921 (2nd Dist.) Plaintiff employee filed an action against the Board of Education, the school superintendent and several individual school board members. Plaintiff made workplace intentional tort claims against the Defendants because of the presence of toxic mold at the work place. The Second District Court of Appeals, affirming summary judgment granted to the School Board stated that Plaintiff’s claims were barred by immunity under R.C. Chapter 2744. Specifically, the Court held that the immunity exception for negligence occurring within or on the grounds of governmental buildings (R.C. §2744.02(B)(4)) did not apply because an intentional tort is not comparable to a negligence action. The Court further found that the frequenter statute, R.C. §4101.11, did not expressly impose liability upon political subdivisions as required by the immunity exception set forth at R.C. §2744.02(B)(5). Defenses – Discretion – Policy/Enforcement Powers Theobald v. Bd. of Cty. Cmrs. of Hamilton Cty., Ohio, 332 F.3d 414 (6th Cir. 2003) The decision of a police officer to defer towing an abandoned vehicle parked within feet of the traveled portion of a highway is the exercise of discretion with respect to enforcement powers and the political subdivision employing the officer is therefore immune from liability pursuant to the defense set forth at R.C. §2744.03(A)(3). Exempt Actions – Contracts/Promissory Estoppel Hortman v. City of Miamisburg, 2005-Ohio-2862 (2nd Dist.) Plaintiff property owners attended meetings with City officials wherein the officials promised that certain trees on Plaintiffs’ property would not be touched or destroyed during a road improvement project adjacent to Plaintiffs’ property. Plaintiffs subsequently signed a work permission agreement that specifically authorized the City to enter Plaintiffs’ property for the purpose of performing all necessary work, including tree and brush removal in accordance with the improvement plans. When the project was performed, Plaintiffs’ trees were destroyed, and Plaintiffs subsequently filed a cause of action against the City, which included a claim of promissory estoppel. Reversing summary judgment granted to the City, the Second District Court of Appeals found that even though government entities are generally not subject to principles of estoppel in the exercise of governmental functions, estoppel is nevertheless applicable to government agencies in contract situations. The Court also noted that the City was not immune from the promissory estoppel claim by virtue of immunity because immunity under Chapter 2744 did not extend to contractual liability. Exempt Actions – Employment Matters Terry v. Ottawa County Board of MRDD, 2002-Ohio-7299 (6th Dist.), supra. Interlocutory Appeal Jacksonv. City of Columbus, 2004-Ohio-546 (10th Dist.) The April 9, 2003 amendment to R.C. §2744.02(C) reinstating a right of interlocutory appeal from decisions denying immunity to political subdivisions was found to be inapplicable to causes of action accruing prior to the effective date of the amendments. There are a number of opinions to the contrary from other judicial districts. Query: does the term “accrued” contained in the effective date section of the legislation refer to the original cause of action or the order from which the right of appeal arises? Sobiski v. Cuyahoga County Department of Children and Family Services, 2004-Ohio-6108 (8th Dist.) The Eighth District Court of Appeals heard an appeal from an interlocutory order denying immunity to a children services agency and its employees. While the majority opinion does not address the issue of appealability, a dissenting judge argues that the appellate court lacked jurisdiction to hear the appeal because Plaintiff’s claim accrued prior to the April 9, 2003 amendments to R.C. Chapter 2744 which reinstated the right to take interlocutory appeals from adverse immunity decisions. Wright v. Peyton, 2005-Ohio-5468 (5th Dist.) The Fifth District Court of Appeals found that the final order provision under R.C. §2744.02(C) did not apply to causes of action that accrued prior to the enactment of the provision on April 9, 2003. Martynyszyn v. Budd, 2004-Ohio-4824 (7th Dist.) Denial of federal qualified immunity does not give rise to a right of interlocutory appeal in state court. Statute of Limitations Gnezda v. City of North Royalton, 2004-Ohio-1678 (8th Dist.) The specific two year statute of limitations provided by R.C. §2744.04(A) for actions against political subdivisions and their employees prevails over other generalized statutes of limitation. Public Duty Yates v. Mansfield Board of Education, 102 Ohio St.3d 205, 2004-Ohio-2491 While not central to the holding of the case, the Court mentions in a footnote that the public duty rule continues to be a viable legal concept despite the misguided decisions of several Courts of Appeal to the effect that the rule was abolished by the advent of R.C. Chapter 2744. Cook v. Montgomery County, 2004-Ohio-3780 (2nd Dist.) A suspect was indicted for kidnapping and domestic violence. The suspect posted bond and was released on electronic home detention. The suspect subsequently evaded the detention and murdered three people. In an action brought by the estates of the decedents, the Second District Court of Appeals held, inter alia, that the public duty rule was still viable in Ohio. In doing so, the Court relied upon comments made by the Ohio Supreme Court in Yates v. Mansfield Bd. of Edn., 102 Ohio St.3d 205 (2004). Applying the public duty rule, the Court found that the Complaint did not indicate that the defendants had assumed an affirmative duty to act on decedents’ behalf, and therefore, the Complaint failed to state a claim under the special duty exception of the public duty rule. Kennerly v. Montgomery County Board of Commissioners, 2004-Ohio-4258 (2nd Dist.), supra. Malicious Prosecution State v. Brown, 99 Ohio St. 3d 3, 2003-Ohio-3931 Sec. 14, Art. I of the Ohio Constitution provides greater protections than the Fourth Amendment to the United States Constitution. Accordingly, a custodial arrest for a minor misdemeanor which violates Ohio statutes, while not in violation of the Fourth Amendment, nevertheless warrants suppression of evidence as a sanction under Sec. 14, Art. I of the Ohio Constitution. Can this case be used in a state law false arrest/malicious prosecution action to support a claim that police officers acted with the type of bad faith, wanton, reckless or malicious misconduct required to impose individual liability under R.C. Ch. 2744? Belknap v. Moss, 2005-Ohio-1255 (11th Dist.) A former criminal defendant tried on distinct criminal charges may bring an action for malicious prosecution even where he was convicted on some, but not all, charges. Where the probable cause for the separate charges is unrelated, their ultimate disposition is similarly unrelated for the purposes of malicious prosecution. Carman v. Ensalaco, 2003-Ohio-5093 (2nd Dist.) Even where criminal defendant’s conviction is reversed on appeal, the jury’s conviction establishes probable cause for the prosecution. Thus, the criminal defendant may not later sue for malicious prosecution. Public Records State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807 Photographs of police officers maintained by police departments are exempted from disclosure under the Ohio Public Records Act as peace officer residential and familial information. State ex rel Dispatch Printing Company v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384 State employee home addresses are not “records” subject to disclosure under the Public Records Act. The Ohio Supreme Court reasoned that, to the extent that an item does not serve to document the activities of a public office, the item is not a public record and need not be disclosed pursuant to the Public Records Act. State ex rel Cincinnati Inquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581 Where a judge has ordered the sealing of criminal case records after a dismissal or acquittal, a member of the public does not have a constitutional right of access to those records. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 104 Ohio St.3d 399, 2004-Ohio-6557 Police reports containing references to initial reports of suspected child abuse and/or neglect are exempt from disclosure under the Ohio Public Records Act due to the confidentiality provisions set forth in R.C. §2151.421. State ex rel Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884 The personal notes of a City investigator taken during a pre-disciplinary conference with an employee were not “public records” subject to the Public Records Act. The Ohio Supreme Court likened the investigator’s notes to judge’s notes kept during the course of a trial, which are kept for the judge’s own convenience and are not official records. Further, the investigator’s notes were not kept as part of the City’s official records and other City officials did not have access to these notes. State ex rel Cincinnati Enquirer v. Cincinnati Board of Education, 99 Ohio St.3d 6, 2003-Ohio-2260 The Board of Education, in interviewing applicants for a school superintendent position, requested that five applicant finalists bring application materials with them to Board interviews. The applicants provided the materials to the Board during their interviews, conducted in executive session, upon the condition that the materials would not be left with the Board and would be returned to the applicants at the close of the interviews. The Cincinnati Enquirer made a public records request for those applicant materials, but was denied. The Ohio Supreme Court held that the materials were not “kept” by the Board and therefore, were not “public records” within the meaning of the Public Records Act. City of Toledo v. Spicuzza, 2005-Ohio-4875 (6th Dist.) In a criminal proceeding, a criminal defendant may only obtain discovery pursuant to Criminal Rule 16, and may not rely on the public records laws to obtain information from law enforcement officials. Keller v. City of Columbus, 2003-Ohio-5599 (10th Dist.) Any provision in a collective bargaining agreement that establishes a schedule for the destruction of public records is unenforceable if it conflicts with or fails to comport with all of the dictates of the Public Records Act. Public Bidding Cementech v. City of Fairlawn, 2005-Ohio-1709 (9th Dist.) In violation of its own bidding procedures, the City awarded a construction contract to a company that did not offer the lowest and best bid. Cementech, the company that did offer the lowest and best bid and won at trial on the issue of liability, attempted to recover damages in the form of lost profits. The trial court limited damages to bid preparation costs. The Ninth District found that Cementech was entitled to receive damages for lost profits, and that such an award would not violate public policy, rejecting the theory that tax payers would essentially be paying “twice” for the same project. Ohio Municipal Attorneys Association “Dude, Where’s Your Car?” Municipal Liability Update 2005
James A. Climer, Esq. MAZANEC, RASKIN, RYDER & KELLER Co. L.P.A. Co., LPA jclimer@mrrlaw.com December 16, 2005FEDERAL CLAIMS SECTION 1983 42 U.S.C. §1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. FIRST AMENDMENT Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. City of San Diego v. John Roe, 125 S.Ct. 521 (2004) A San Diego police officer was discharged for offering homemade, sexually explicit videos for sale on an on-line auction site. In particular, the officer’s videos contained footage of him in an unaffiliated police uniform engaging in sexual parodies of police work. The officer sued the police department, the City and his supervisors under §1983, alleging that his off duty, non-work related activities could not be grounds for terminating his employment. The trial court granted summary judgment to the City. Plaintiff appealed and the decision was reversed by the Ninth Circuit. The U.S. Supreme Court reversed the Ninth Circuit, holding that the police officer’s activities, though outside of the work place, and purportedly about subjects not related to his employment, had injurious effects on the mission of his employer and were not entitled to First Amendment protection. Further, the officer’s speech did not touch on “a matter of public concern,” and thus, was not subject to protection under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). Cutter v. Wilkinson, 125 S.Ct. 2113 (2005) Ohio state prisoners sued prison officials alleging denial of their right to practice their various religions due to unwarranted concerns about security in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The State officials filed a motion to dismiss which was denied by the District Court. On appeal, the State of Ohio Department of Rehabilitation and Correction challenged the constitutionality of the Act, claiming that RULIPA impermissibly advanced religion in violation of the First Amendment’s Establishment Clause. The Sixth Circuit Court of Appeals agreed with the State and reversed the trial court decision. Subsequently, the United States Supreme Court granted certiorari. Reversing the Sixth Circuit, the U.S. Supreme Court held that RULIPA did not violate the Establishment Clause. The Court found that RULIPA was compatible with the Establishment Clause because, while the RULIPA forbids the government from imposing a substantial burden on the exercise of religion of persons residing in or confined to an institution, RULIPA allowed for the government to impose burdens on the religious practice through “the least restrictive means” pursuant to “a compelling governmental interest.” The Court, therefore, found that RULIPA allowed courts to take into account the burdens a requested accommodation may impose on non-beneficiaries and the governmental institutions. Further, the Court held that RULIPA did not impermissibly advance religion by giving greater protection to religious rights than to other constitutionally protected rights and did not afford religious prisoners rights superior to those of non-religious prisoners or encourage prisoners to become religious in order to enjoy greater rights. City of Littleton, Colorado v. Z. J. Gifts D-4 LLC, 124 S.Ct. 2219 (2004) A Littleton, Colorado ordinance required that certain “adult” businesses apply for and be granted licenses. Under the ordinance, a decision by the City to deny a license could be appealed to the state district court. Z.J. Gifts declined to apply for a license and filed a facial challenge to the constitutionality of the ordinance contending that it amounted to an unconstitutional prior restraint on speech. Upon review, the United States Supreme Court rejected the City’s argument that it was sufficient for the ordinance to provide assurances of speedy access to courts for the review of adverse licensing decisions without also providing assurances of speedy court reviews. However, the Court found that the ordinance conditioned the issuance of an adult business license on simple, content-neutral, nondiscretionary criteria which were unlikely to lead to censorship. Accordingly, the Court held that Colorado’s normal judicial review processes satisfied the speedy review requirement and upheld the statute. Mezibov v. Allen , 411 F.3d 712 (6th Cir. 2005) During a criminal trial, defense counsel Mezibov filed a number of motions on behalf of his client. The motions were denied by the court and Mezibov’s client was ultimately convicted by a jury. After the criminal trial, the prosecuting attorney made several comments to the press critical of Mezibov and his handling of the case. Mezibov filed a §1983 action against the prosecuting attorney claiming that the comments were defamatory and violated the First Amendment by retaliating against Mezibov for filing the motions in the defense of his client in the criminal trial. The Sixth Circuit affirmed the trial court’s dismissal of Mezibov’s case, stating “we think the District Court was correct in its basic conclusion: in filing motions and advocating for his client in court, Mezibov was not engaged in free expression; he was simply doing his job. In that narrow capacity, he voluntarily accepted almost unconditional restraints on his personal speech rights, since his sole raison d’etre was to vindicate his client’s rights. For these reasons, we hold in the context of the courtroom proceeding, an attorney retains no personal First Amendment rights when representing his client in those proceedings.” Prime Media v. City of Brentwood, 398 F.3d 814 (6th Cir. 2005) The Sixth Circuit held that an ordinance limiting billboards to six feet in height and 120 square feet in overall size was a content-neutral restriction that was narrowly tailored to advance the City’s legitimate interests in reducing visual blight and aiding traffic safety. Furthermore, the City promulgating such a regulation nee |
