# Davis v. City of Columbus

> District Court, S.D. Ohio · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10378689

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378689

## How later opinions describe it (automated extraction)

- finding the police chief to be a “final policymaker” with respect to investigations

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIMOTHY DAVIS, :
: Case No. 2:17-cv-823
Plaintiff, :
: CHIEF JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Chelsey M. Vascura
CITY OF COLUMBUS, OHIO, et al., :
:
Defendants. :

OPINION & ORDER
This matter comes before the Court on Defendant City of Columbus’s Motion for Summary
Judgment. (ECF No. 72). The Court held oral argument on this motion on June 17, 2021, at 10:00
a.m. For the reasons set forth below and orally on the record, this Court DENIES Defendant City
of Columbus’s Motion for Summary Judgment.
I. BACKGROUND
This is a federal civil rights action arising out of the September 1, 2017 arrest of Plaintiff
Timothy Davis at the Livingston Market in Columbus, Ohio. (ECF No. 26 ¶ 1). Defendants
Matthew Baker, Alan Bennett, Sean Connair, Eric Everhart, Anthony Johnson, LeVon Morefield,
Robert Reffitt, and Ryan Steele are Law Enforcement Officers with the Columbus Division of
Police (“CPD”). (ECF No. 72 at 1). Each of the Officers was involved personally in Mr. Davis’s
September 1 arrest, and each of the Officers applied force to effect that arrest. (Id.). The use of
force included physical blows to Mr. Davis’s face and torso, as well as repeated tasing. (ECF No.
26 ¶¶ 27, 35). Mr. Davis alleges that the force used to accomplish his arrest was excessive and in
violation of his Fourth Amendment rights. (Id. ¶ 67).
A. Columbus Division of Police
The Violent Crime Working Group (“Working Group”) was a former directed patrol unit
created in 2017 to apprehend “most wanted” individuals with felony warrants in CPD’s Zone 5.
(ECF No. 83 at 4, 27 (citing Hasson Dep.)). The Working Group carried out Mr. Davis’s arrest,
and all but two of the Defendant Officers were members of it.1 Mr. Davis alleges that the Working

Group maintained no criteria to join, lacked specialized training, and was composed of patrol
officers who volunteered for the assignment. (ECF No. 83 at 11 (citing Hasson Dep., Reffitt Dep.)).
Mr. Davis also states that no supervisory officer oversaw the team’s day-to-day assignments or
tactical decisions. (Id. at 12 (citing Hasson Dep., Connair Dep., Morefield Dep.)). A Lieutenant
was the de facto supervisor, but he simply oversaw administrative tasks like scheduling. (Id. at 11
(citing Hasson Dep., Connair Dep.)). The only reporting required of the patrol officers in the group
was ex post reporting of the arrests made, submitted to that same Lieutenant on an irregular basis.
(Id. at 12, 28 (citing Hasson Dep.)).
Defendant City of Columbus supports its Motion by detailing the training all CPD officers

are required to undergo. (ECF No. 72 at 10). This training includes a six-month, 1,000-hour basic
recruit training program, which exceeds Ohio’s requirements for basic law enforcement training.
(Id.). After basic training, new CPD officers also must complete the Division’s Field Officer
Training, where they spend about fifteen weeks going through one-on-one training with veteran
officers. (Id.).
In addition, the City highlights CPD’s use of force policy, codified as Directive 2.01, which
prohibits officers from using “more force than is reasonable in a particular incident.” (Id. at 15).
Before exerting force, officers are instructed to consider: (1) the “severity of the crime at issue”;

1 Officers Bennett and Steele were uniformed patrol officers, not affiliated with the Working Group, who arrived on
the scene after the Working Group Officers initiated the arrest. (ECF No. 65-2 ¶¶ 6, 9–11; ECF No. 65-9 ¶¶ 6, 30).
(2) whether the “suspect poses an immediate threat to the safety of the officer or others”; (3)
whether the “suspect is actively resisting arrest”; and (4) whether the “suspect is attempting to
evade arrest by flight.” (Id.).
The use of tasers by CPD officers is governed by Directive 2.04. The policy directs that
tasers are intended to incapacitate a “violent or potentially violent” subject’s neuromuscular and

sensory nervous system, or to elicit pain compliance via an electrical current. (ECF No. 83 at 13
(citing Directive 2.04 & Van Dop Dep.)). CPD patrol officers undergo taser training annually.
Officers are trained to “[u]se the shortest duration of . . . exposure objectively reasonable to
accomplish lawful objectives, and reassess the subject’s behavior before initiating or continuing
the exposure.” (Id. at 15 (citing Selected Taser Training Slides)). Further, officers are instructed
that extended use of tasers can “be avoided or reduced by ‘controlling/cuffing under power,’”
which refers to the practice of handcuffing a subject during or immediately following the use of a
taser. (Id.).
Mr. Davis notes that the City’s taser policy does not provide guidance as to the maximum

number of cycles an officer is permitted to use once he has deployed the taser, nor does it address
when multiple deployments are warranted, reasonable, or safe. (Id. at 14 (citing Vehr Expert
Dep.)). Put differently, he alleges inadequate training on the cumulative risk of prolonged or
repeated exposure to tasing. (Id. at 21–22 (citing Bennett Dep., Taylor Dep.)).
B. Mr. Davis’s September 1, 2017 Arrest
Mr. Davis was on the Working Group’s “most wanted” list because he had outstanding
misdemeanor and felony warrants in Ohio and Kentucky, as well as a previous conviction for
aggravated robbery and kidnapping. (ECF No. 72 at 2–3). The Working Group Officers knew of
prior incidents where Mr. Davis had assaulted a CPD officer and a Kentucky state trooper. (Id.).
To locate and arrest Mr. Davis, Officer Morefield was tracking him on Facebook. (Id. at
3). On September 1, 2017, Mr. Davis posted an offer on Facebook to “jailbreak” Amazon
Firesticks. (Id.). Officer Morefield, posing as a civilian woman, responded to Mr. Davis’s post that
(s)he was interested in the offer. Through the conversation, Officer Morefield learned that Mr.
Davis would be at Livingston Market later that day. (Id.).

When the Working Group Officers learned that Mr. Davis would be at Livingston Market,
they divided into two teams in separate vehicles. (ECF No. 72 at 4). After purchasing a few items,
Mr. Davis states that he looked to see if the woman had arrived but saw no cars in the parking lot.
(ECF No. 83 at 3). The Officers, however, had seen him. The first group—those wearing black
tactical vests that read “POLICE” in large white lettering on the front and back—went into the
market first. The other Working Group Officers followed. (ECF No. 72 at 4).
There is substantial disagreement as to the circumstances of Mr. Davis’s arrest. The City
describes Mr. Davis’s “active, vigorous, long-lasting resistance.” (Id. at 5). Mr. Davis pleads that
he did nothing to resist arrest and that the Officers exerted unreasonable force by punching,

kicking, and tasing him. (ECF No. 26 ¶¶ 28, 37). Mr. Davis recalls that he was punched on the left
side of his face without warning by a person he perceived to be a stranger in a black hoodie. (ECF
No. 83 at 1). Mr. Davis describes being “bull-rushed” by a group he did not perceive as police
officers but later learned were Officers Morefield, Johnson, Everhart, and Connair. (Id.). Rather
than informing Mr. Davis he was under arrest, the four Officers proceeded to punch and beat him,
he alleges. (Id. (citing video evidence)). The Officers’ use of force report and testimony indicate
at least seven elbow strikes, five knee strikes, nine kicks, five punches each to the face and back,
two punches to the ribs using handcuffs, hair pulling, and eleven taser cycles on a close-quarter
probe deployment and drive-stun mode. (Id. at 2). At some point, Mr. Davis says that his pants
came down and exposed his genitals. (Id. (citing video evidence)). Mr. Davis claims also that an
Officer placed him in a headlock and stated: “Watch out buddy, you’re about to go to sleep.” (Id.
at 6 (citing video evidence)).
Bystanders recorded at least some of the arrest. One such bystander, Michael Woodson-
Levey, testified that he did not hear any voices identifying the Officers as CPD or instructing Mr.

Davis that he was under arrest. (Id. at 4 (citing Woodson-Levey Dep.)). Mr. Woodson-Levey did
hear the Officers command Mr. Davis to “stop resisting,” but not until after they had been
“tussling” with Mr. Davis for some time. (Id.). Mr. Woodson-Levey never observed Mr. Davis
engage in any aggressive behavior, physically or otherwise. (Id.).
Mr. Davis alleges that Officers Connair and Johnson performed separate takedowns to
bring him to the ground, where the Officers continued to strike, punch, kick, and stomp on him.
(Id. at 5–6, 7 (citing Connair Use of Force Rep., Johnson Dep., & video evidence)). An Officer
can be heard on video saying: “Put your hands behind your back, bitch.” (Id. at 8).
As Officer Bennett arrived, the other Officers directed him to “tase the motherfucker.” (Id.

(citing video evidence)). Officer Bennett tased Mr. Davis eleven times. Mr. Davis was subjected
to a total of fifty-five seconds of tasing, all of which occurred over the course of one minute and
twenty-eight seconds. (Id. at 9 (citing Bennett Taser Rep.)).
Eventually, Mr. Davis was placed in handcuffs and arrested. In the transport van, Mr. Davis
remembers fading in and out of consciousness (Id. at 10). Mr. Davis claims he told an Officer, “I
can’t breathe,” to which the Officer responded: “Oh, stop it. Well then maybe you shouldn’t have
fought like an asshole.” (Id. (citing video evidence)). A video at the police station shows Mr. Davis
being carried inside, bloodied, hogtied, and seemingly unconscious. (Id. at 2).
Mr. Davis suffered from multiple abrasions, contusions, and lacerations. He required five
days of inpatient treatment at Grant Hospital. (Id. at 11 (citing hospital and jail medical records)).
Staff at the hospital found blood in both of Mr. Davis’s ear canals and damage to his sinuses. He
also was diagnosed with acute kidney failure. (Id.). Mr. Davis continued to experience rib pain and
trouble breathing for months, ultimately leading to diagnosis of a broken rib. (Id.).

C. CPD Investigation
After Mr. Davis’s arrest, CPD completed a “Use of Force Report” and later an “Internal
Affairs Investigative Summary.” (ECF No. 68-10; ECF No. 68-11). Both involved investigating
witnesses and reviewing the video footage. (ECF No. 86 at 13–14). The use of force report found
that none of the Officers violated CPD policy. It further observed that CPD’s use of force policy
closely tracks the Supreme Court’s objective reasonableness test in Graham v. Connor, 490 U.S.
386 (1989), indicating its constitutionality. (ECF No. 72 at 14). The Internal Affairs investigation
sustained one allegation of excessive force (by Officer Reffitt), but the Deputy Chief overturned
it. (ECF No. 83 at 32 (citing Bash Rep.)). Only the use of profanity was deemed out of policy. (Id.

(citing Echenrode Mem.)).
II. STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Berryman v.
SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s purpose in
considering a summary judgment motion is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence,” in favor of the nonmovant; evidence that is “merely
colorable” or “not significantly probative” will not defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the Court
with law and argument in support of its motion, as well as identifying the relevant portions of “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation omitted). If this initial
burden is satisfied, the burden then shifts to the nonmovant to set forth specific facts showing that
there is a genuine issue for trial. Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
In considering the factual allegations and evidence presented in a motion for summary
judgment, the Court “views factual evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). Even so, “[t]he mere existence of a scintilla of evidence to support [the
nonmovant’s] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [nonmovant].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995);
see also Anderson, 477 U.S. at 251.
III. LAW & ANALYSIS
The parties have stipulated to the dismissal of some of Mr. Davis’s original claims. (ECF
No. 64; ECF No. 71). The remaining federal claims arise under 42 U.S.C. § 1983 and allege that
each of the Officers violated Mr. Davis’s Fourth Amendment right to be free from excessive force.
Mr. Davis also asserts a federal claim under 42 U.S.C. § 1983 against the City. (ECF No. 26 ¶¶
67–68). The City moves for summary judgment on the claims against it. (ECF No. 72 at 3).2

2 The City recognizes that its arguments also bear on Mr. Davis’s official capacity claims against the Officers, insofar
as official capacity claims are treated as actions against the government employer. (ECF No. 72 at 18).
A. Municipal Liability Under Section 1983
Mr. Davis seeks relief for excessive force by his arresting Officers, in violation of his
constitutional rights and 42 U.S.C. § 1983. Section 1983 creates a civil cause of action for
deprivation of federal rights by any person acting under color of law; but it does not establish full
respondeat superior liability for actions of municipal employees. Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690–91 (1978). Rather, the employee’s action must “fairly be said to represent
official policy” of the local government. Id. at 694.
To prevail on a Section 1983 claim, an aggrieved party first must have suffered a
constitutional injury. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). The City assumes,
for purposes of this motion only, that Mr. Davis has met the injury requirement and that the
Officers did violate his Fourth Amendment rights. (ECF No. 72 at 7).
Municipal liability for such an injury attaches in any of four ways. “[T]he plaintiff may
prove: ‘(1) the existence of an illegal official policy or legislative enactment; (2) that an official
with final decision making authority ratified illegal actions; (3) the existence of a policy of

inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence
of federal rights violations.’” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019)
(quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)).
Whichever of the four routes is taken, “a plaintiff must demonstrate a close causal
connection between the policy and the injuries suffered as well.” Johnson v. Hardin Cty., 908 F.2d
1280, 1285 (6th Cir. 1990). In other words, “the municipal action [must be] the moving force
behind the injury of which the plaintiff complains.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397,
405 (1997).3

3 The City proposes another “essential element,” drawn from its reading of the caselaw: “a sufficient culpable mental
state on the part of the municipality itself with respect to that [improper] policy or custom.” (ECF No. 72 at 6–7).
The City moves for summary judgment, stating that Mr. Davis’s claims against it fail on
all four Monell theories. The Court will review each in turn below. The question at the summary
judgment phase is whether Mr. Davis has produced sufficient evidence for a reasonable jury to
find in his favor.
B. Monell Theories

1. Illegal Official Policy
When proceeding under the first Monell theory of liability, a plaintiff can show that there
were “formal rules or understandings—often but not always committed to writing—that [were]
intended to, and [did], establish fixed plans of action to be followed under similar circumstances
consistently and over time.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986). Because
liability extends to understandings in addition to written policies, “a city may be liable under
Monell for a policy of permitting constitutional violations regardless of whether the policy is
written.” Wright v. City of Euclid, 962 F.3d 852, 880 (6th Cir. 2020) (internal quotation omitted);
see also Monell, 436 U.S. at 691 (“Although not authorized by written law, such practices . . .

could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of
law.”) (internal quotation omitted). Mr. Davis’s case implicates the written taser policy and, more
importantly, the gaps therein.
The City maintains that Mr. Davis cannot identify any legislative enactment or official
policy that directs, allows, or encourages CPD officers to use excessive force. (ECF No. 72 at 15).
CPD does have general directives to limit force to what is “reasonable in a particular incident,” as

However, the case that the City cites for this proposition, Brown, makes clear that “Section 1983 itself ‘contains no
state-of-mind requirement independent of that necessary to state a violation’ of the underlying federal right.” 520 U.S.
397, 405 (1997) (quoting Daniels v. Williams, 474 U.S. 327, 330 (1986)). The “culpability” element proposed by the
City is subsumed by either (1) the “intentional[ity]” inherent in a claim under Monell theories one and two, see id.; or
(2) the “deliberate indifference” aspect of a claim under Monell theories three and four. See id. at 406–07. In short, if
Mr. Davis sets forth a complete claim under a Monell theory, he also has established culpability.

guided by the Supreme Court’s objective reasonableness test in Graham, 490 U.S. 386. (ECF No.
72 at 15 (quoting Directive 2.01)). But it is not this general directive that Mr. Davis challenges as
allowing excessive force. Mr. Davis points to CPD’s taser policy, memorialized in Directive 2.04.
While the taser policy does contain general directions to minimize the number and duration of
exposures and to evaluate the objective reasonableness of each trigger pull, (Id. at 15–16; ECF No.

86 at 2), it fails to include any guidance as to the maximum number of cycles an officer is permitted
to use once he has deployed his taser or to provide a benchmark of reasonableness for officers to
reference. (ECF No. 83 at 13 (citing Vehr Expert Dep.)). Again, Mr. Davis is challenging the gap
in specific guidance, not the overarching principles that police officers are asked to apply.
Mr. Davis’s injuries cast doubt on CPD’s choice to forego any firm benchmark on repeated
taser use. He has produced expert evidence that his prolonged exposure risked serious injury or
death and, as such, was “outside of professional law enforcement standards.” (Id. at 16 (citing
Taylor Expert Rep.)). Yet CPD’s investigations found no violation of Directive 2.01, Directive
2.04, or any other excessive force rule; on the contrary, they concluded that Mr. Davis’s treatment

was permitted by CPD policy. (Id. at 23). Mr. Davis has identified a report of the Police Executive
Research Forum and a Sixth Circuit decision that potentially put CPD on notice of deficiencies in
its taser policy years before the arrest. (Id. at 22 (discussing 2011 PERF Electronic Control Weapon
Guidelines and Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir. 2015))).4 And he has
deposed the Officers involved to confirm that the taser policy did not define when exposure

4 The PERF policy guidelines stated that multiple taser applications resulting in “exposure longer than 15 seconds
(whether continuous or cumulative) may increase the risk of serious injury or death and should be avoided.” (ECF No.
83 at 22). The Goodwin decision held a continuous 26-second taser application to be unreasonable. (Id.). Mr. Davis
was subjected to 55 seconds of tasing in near-continuous fashion, with as little as 1 to 3 seconds between most of the
5-second cycles. (Id. at 9 (citing Bennett Taser Rep.)).
becomes extended or repeated so as to violate the general rules on excessive force. (Id. at 21 (citing
Bennett Dep.)).
This Court finds that Mr. Davis has produced sufficient evidence such that a reasonable
jury could find CPD’s taser policy deficient and permissive of excessive force. At this stage, Mr.
Davis also is entitled to the reasonable inference that an adequate taser policy would have been

followed by the Officers who arrested him, such that the policy deficiency may be considered the
moving force behind his injuries.
2. Ratification
A plaintiff also can establish municipal liability by showing that the municipality ratified
the acts of its employees through failing to investigate meaningfully and to punish allegations of
unconstitutional conduct. Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1247–48 (6th Cir. 1989).
The Sixth Circuit has cautioned, however, that “mere acquiescence in a single discretionary
decision by a subordinate is not sufficient to show ratification. Otherwise, [a municipality] would
be liable for all of the discretionary decisions of its employees, and this would be indistinguishable

from respondeat superior liability.” Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir.
1993) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Instead, ratification
“requires affirmative approval of a particular decision made by a subordinate.” Id.
First, Mr. Davis states that CPD’s investigations into the Officers’ use of force ended with
affirmative approval of their actions in Mr. Davis’s arrest. (ECF No. 83 at 32). Even the lone use
of force initially deemed unreasonable by Sergeant Johnson’s investigation was overturned and,
as was the case with all other allegations of force against Mr. Davis, approved by a final
policymaker, the Police Chief. (Id.). See also Wright v. City of Canton, 138 F. Supp. 2d 955, 966
(N.D. Ohio Apr. 9, 2001) (“Under Ohio Revised Code § 737.12, the chief of police is the final
policymaker with respect to investigations that do not result in disciplinary action.”). The only
conduct CPD supervisors deemed “out of policy” and subject to discipline was the profanity the
Officers uttered during the arrest. (ECF No. 83 at 32 (citing Echenrode Mem.)). Mr. Davis has cast
doubt on the thoroughness and objectivity of the investigations by noting that several of the
eyewitnesses offered by the Officers to support their account later testified in favor of Mr. Davis’s

version of events. (Id. at 34–35 (citing Alzeban Dep., Woodson-Levey Dep.)). He also has
suggested that the investigations ignored the cumulative effects of the Officers’ force and failed to
press Officer Bennett for the justification behind each additional trigger pull. (Id. at 35–36 (citing
Van Dop Mem. & Bennett Dep.)).
The City views Mr. Davis’s theory as nothing more than a post-hoc rationalization. It
argues that an investigation occurring after the fact cannot be a moving force in causing the
constitutional violation. (ECF No. 72 at 14). The question, however, is not whether the ratification
caused the injury. It is whether the misconduct that caused the injury was ratified through a failure
to investigate, such that it may be considered official policy. See Wright, 138 F. Supp. 2d at 966

(citing Leach, 891 F.2d 1241). There is no dispute that the City’s investigations found no
wrongdoing by the Officers and confirmed that the use of force against Mr. Davis was consistent
with CPD policy. Moreover, the officials who received and accepted the reports were not mere
factfinders, as the City argues. (ECF No. 86 at 12). The officials were making decisions on whether
the Officers’ conduct fell withing CPD policy and whether the Officers should face potential
discipline. See Wright, 138 F. Supp. 2d at 966 (finding the police chief to be a “final policymaker”
with respect to investigations).
Second, Mr. Davis points to CPD’s history of investigations as evidence of a custom or
practice of ratifying unconstitutional conduct, including in his case. He presents evidence of
numerous excessive force complaints filed against some of the Working Group Officers—twelve
against Officer Johnson and twenty against Officer Connair—that without fail were resolved in
favor of the Officers. (Id. at 33 (citing reports of CPD Internal Affairs Bureau)). This history of
inadequate discipline, Mr. Davis argues, was another moving force behind his constitutional
injury. (Id. at 36).

The City retorts that since these investigations found no wrongdoing, Mr. Davis has failed
to show prior unconstitutional uses of force. (ECF No. 86 at 12). This argument is self-fulfilling,
given that Mr. Davis is challenging the legitimacy of those investigations. The large number of
complaints—and their unanimous disposition in favor of the Officers—together permit a
reasonable inference that there were at least some instances of actual wrongdoing that went
unpunished and even were approved.5 At this stage, such inferences are to be drawn in favor of
Mr. Davis.
Accordingly, this Court finds that there is a genuine issue of material fact as to whether an
official with final policymaking authority ratified unconstitutional conduct in Mr. Davis’s arrest,

particularly by failing to investigate fully and to punish adequately those individuals responsible
for the use of excessive force.
3. Inadequate Training or Supervision
Inadequate police training or supervision may serve as the basis for Section 1983 liability
“where the failure to train amounts to deliberate indifference to the rights of persons with whom
the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Supreme
Court in City of Canton indicated that failure to provide adequate training justifies a finding of

5 To support this inference, Mr. Davis’s Amended Complaint acknowledges the City’s 1999 pattern or practice
investigation by the Department of Justice, which resulted in a finding that the City had tolerated excessive force
through inadequate training, supervision, investigation, and discipline of police officers. (ECF No. 26 ¶ 61). What
weight to give this investigation is a matter for the jury.
deliberate indifference where there are foreseeable serious consequences from the lack of
instruction. Id. at 390. Liability can attach from a single violation,6 in which case the Sixth Circuit
has held that the training must be “‘so reckless or grossly negligent that future police misconduct
is almost inevitable or would properly be characterized as substantially certain to result.’” Harvey
v. Campbell Cty., 453 F. App’x 557, 567 (6th Cir. 2011) (quoting Hays v. Jefferson Cty., 668 F.2d

869, 874 (6th Cir. 1982)). And as with the other theories under Monell, liability for inadequate
training or supervision attaches only where municipal policies are the moving force behind the
constitutional violation.
In summary, to succeed on an inadequate training claim, a plaintiff must prove: “(1) that
a training program is inadequate to the tasks that the officers must perform; (2) that the inadequacy
is the result of the City’s deliberate indifference; and (3) that the inadequacy is closely related to
or actually caused the plaintiff’s injury.” Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016)
(internal quotation omitted). The Court will review those elements below.
(a) Inadequacy of Training or Supervision

The City argues that the training and supervision of its police officers was neither lacking
nor inadequate. (ECF No. 72 at 9). On the contrary, the City contends that CPD thoroughly trained
and supervised its officers on the use of force. (Id.). In support, the City details the extensive
training required of all would-be CPD officers and highlights CPD’s ongoing training program
after hiring—both of which meet or exceed the standards established by the State and for
accreditation. (Id. at 10). The City argues that Mr. Davis makes only general allegations of

6 Another situation justifying a conclusion of deliberate indifference is where the city fails to act in response to a
pattern of constitutional violations by its officers. See Brown, 520 U.S. at 407–08. It does not appear that Mr. Davis
alleges these circumstances. References to any pattern of violations in Mr. Davis’ opposition to summary judgment
are under the ratification theory of Monell liability. (ECF No. 83 at 31–37).
purportedly deficient training, rather than pointing to any specific deficiencies or inadequacies in
CPD’s use of force training or supervision. (Id.).
In fact, Mr. Davis highlights four categories of training and supervision that he believes
were inadequate. First, Mr. Davis notes the absence of specialized training for the Working Group.
The mission of the Working Group was to apprehend “most wanted” individuals with outstanding

arrest warrants for violent felonies. (Id. at 2). Yet Mr. Davis states, and the Officers corroborate,
that CPD provided no specialized training or instruction, beyond the CPD basic training, on how
to accomplish these arrests safely and legally. (ECF No. 83 at 27 (citing Hasson Dep.)).
Second, Mr. Davis alleges that supervision of the Working Group broke from established
protocols. At the time of Mr. Davis’s arrest, the CPD Supervisor’s Manual included a policy (1.00)
titled “Command and Administrative Decision Levels,” which states that certain tactical decisions
are not to be made at any level lower than Sergeant. (Id.). But Mr. Davis has established a record
rife with evidence that Officer Everhart, a patrol officer, routinely was making tactical decisions
for the Working Group. (Id. at 27–28 (citing Hasson Dep., Connair Dep., Morefield Dep.)). And

the record does not show that the Working Group Officers consulted with supervisors for tactical
advice. (Id. at 29). All of this was known to the higher levels of command, but the structure
persisted until after Mr. Davis’s arrest. (Id. at 12, 31 (citing Hasson Dep.)).
Third, Mr. Davis refers back to the inappropriate use of tasers, noting that CPD officers are
not trained on how to limit extended use of a taser. Mr. Davis procured testimony from Officer
Bennett that he was not trained on how to determine the appropriateness of using multiple taser
cycles. (Id. at 25 (citing Bennett Dep.)). Defendants’ expert corroborated that decisions about the
number of cycles are left to officers in the field. (Id. at 26 (citing Vehr Expert Dep.)).
Fourth, Mr. Davis alleges that the Working Group failed to review or monitor internally its
Officers’ conduct. Rather, the Working Group Officers continued to report to chains of command
in their originating divisions, which resulted in their uses of force being reviewed by separate
outside supervisors. (Id. at 12 (citing Hasson Dep.)). Only after Mr. Davis’s arrest was a
supervisory officer added to the Working Group. (Id.).

Accordingly, Mr. Davis has created a genuine issue of material fact as to whether CPD’s
training and supervision was adequate for the tasks to be performed. It is for the jury to determine
whether the baseline CPD training and looser chain of command were adequate to meet the
Working Group’s mission of apprehending known violent felons. The same is true for whether the
general use of force directives were sufficient to avoid excessive use of repeated taser cycles.
(b) Deliberate Indifference
A municipality can be found deliberately indifferent in its training or supervision through
“‘a single violation of federal rights, accompanied by a showing that [the municipality] has failed
to train its employees to handle recurring situations presenting an obvious potential’ for a

constitutional violation.” Shadrick v. Hopkins Cty., 805 F.3d 724, 739 (6th Cir. 2015) (quoting
Brown, 520 U.S. at 409). This method of proving deliberate indifference towards inadequate
training is available “‘in a narrow range of circumstances’ where a federal rights violation ‘may
be a highly predictable consequence of a failure to equip [employees] with specific tools to handle
recurring situations.’” Id. (alteration in original) (quoting Brown, 520 U.S. at 409).
Mr. Davis alleges that CPD did not provide any specialized training to its Working Group
Officers regarding excessive force when apprehending potentially violent suspects. (ECF No. 83
at 27 (citing Hasson Dep.)). The Working Group was composed of volunteer recruits, without any
requirements to join. (ECF No. 83 at 11 (citing Reffitt Dep., Hasson Dep.)). And though all CPD
officers receive basic training on the proper use of force, including with a taser (ECF No. 72 at 9–
10), these Working Group Officers would be engaging repeatedly in arrests likely to require greater
than usual force. In light of the Working Group’s mission to apprehend suspects with active
warrants for violent felonies, a reasonable jury could find that the lack of any specialized training
indicates deliberate indifference under City of Canton and its progeny. See City of Canton, 489

U.S. at 390 (“[I]t may happen that in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.”). The allegations here also illustrate notice as to
deficiencies in the taser training (ECF No. 83 at 22) and a foreseeable risk of rendering a suspect
unable to comply with commands, thereby prompting the officer to continue tasing a suspect
beyond justifiable limits. (Id. at 24).
With regard to supervision, the Working Group was composed of volunteers who were not
answerable to anyone other than their regular patrol supervisors, who had limited insight on

Working Group activities. Mr. Davis states that the Working Group Officers were placed in a
disjointed chain of command whereby Lieutenant Hasson was the de facto “supervisor,” but only
for administrative matters. (ECF No. 83 at 11, 27 (citing Hasson Dep., Connair Dep.)). This
arrangement meant that review was accomplished by multiple chains of external officers, but none
internal to the Working Group. (Id. at 12, 27 (citing Hasson Dep.)). Given the dearth of direct
supervision and review, a jury reasonably could find deliberate indifference, premised again upon
foreseeable consequences. Cf. Ouza v. City of Dearborn Heights, 969 F.3d 265, 289 (6th Cir. 2020)
(failure to evaluate, review, or monitor police officers’ conduct could amount to deliberate
indifference).
(c) Causation
A plaintiff finally must prove “that the inadequacy is closely related to or actually caused
the plaintiff’s injury.” Plinton v. Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (internal
quotation omitted). The “closely related to” and “actually caused” phrases come from City of
Canton. This is a higher standard than “be[ing] able to point to something the city ‘could have

done’ to prevent the unfortunate incident,” which “virtually every” plaintiff under Section 1983
will be able to do. City of Canton, 489 U.S. at 392.
Mr. Davis argues there is causation between CPD’s training and the injuries he sustained.
The taser policy does not mandate a limit or provide a definition of “prolonged exposure” to a
taser. Nor does CPD training provide guidance as to when repeated tasering is considered unsafe
or high-risk to the subject. (ECF No. 83 at 14 (citing Vehr Expert Dep., Van Dop Dep.)). Here,
Officer Bennett allegedly applied the taser to Mr. Davis almost continuously for a minute and a
half, even though Mr. Davis represents that he was not resisting arrest and that the taser already
had produced the desired effect of submission. (Id. at 20). Additionally, the Working Group

Officers received no use of force training above basic CPD requirements, despite their specialized
mission making it particularly likely that these Officers would use higher levels of force. At this
stage, Mr. Davis is entitled to an inference that, had the Officers been trained properly on use of
force generally and prolonged taser use specifically, the constitutional injury would have been
avoided.
Mr. Davis’s expert, having evaluated the Working Group’s supervision practices, also
found causation from the irregular chain of command. The expert concluded that the absence of a
supervisor resulted in a poor arrest plan where bystanders would be at risk, giving cover for
additional force to be used against Mr. Davis. (Id. at 28–29 (citing Taylor Expert Rep.)).
This Court finds that there is a genuine issue of material fact as to whether CPD’s training
or supervision was a moving force in Mr. Davis’s constitutional injuries. See also Brown, 520 U.S.
at 409–10 (holding that a “high degree of predictability may also support an inference of
causation—that the municipality’s indifference led directly to the very consequence that was so
predictable”); Ouza, 969 F.3d 265 at 289 (same).

In summary, Mr. Davis has raised serious questions about the adequacy of CPD’s training
and supervision on use of force. If the inadequacies are proven, it likely was foreseeable that they
would result in constitutional violations. Accordingly, this Court finds that Mr. Davis’s Monell
claims for inadequate training and supervision also must survive summary judgment.
4. Custom of Tolerance or Acquiescence of Federal Rights Violations
Lastly, a plaintiff may plead municipal liability under Monell by demonstrating the
existence of a custom of tolerance or acquiescence to the violation of constitutional rights. The
Sixth Circuit has identified four factors that a plaintiff must prove in order to establish a custom
of tolerance or acquiescence: “(1) the existence of a clear and persistent pattern of illegal activity;

(2) notice or constructive notice on the part of the defendant; (3) the defendant’s tacit approval of
the unconstitutional conduct, such that their deliberate indifference in their failure to act can be
said to amount to an official policy of inaction; and (4) that the defendant’s custom was the moving
force or direct causal link in the constitutional deprivation.” Stanfield v. Lima, 727 F. App’x 841,
851 (6th Cir. 2018) (internal quotation omitted). Failure to investigate can constitute a custom of
tolerance rising to the level of deliberate indifference. See Leach, 891 F.2d at 1247–48.
Mr. Davis’s custom theory overlaps with his ratification theory, wherein he argues that the
history of superficial investigations into unconstitutional use of force demonstrates a practice of
ratifying unconstitutional conduct. (ECF No. 83 at 32–34). Mr. Davis identifies the 1999
Department of Justice investigation (ECF No. 26 § 61) and the history of complaints against
several Officers involved in his arrest (ECF No. 83 at 33) as putative proof of a clear pattern of
inadequate investigation into excessive force. The federal investigation would have put the City
on notice, as would the citizen complaints about the Officers. In accepting the investigatory reports
and their findings, the City would have given tacit approval to officers’ misconduct. And a jury
reasonably could conclude that the pattern of inadequate investigation allowed officers—including
those who arrested Mr. Davis—to perpetuate misconduct without fear of discipline, such that
causation is satisfied. Consistent with the analysis in Section II.B.2, supra, this Court finds that a
lack of meaningful investigations into unconstitutional use of force would permit a reasonable jury
to find a custom of tolerance or acquiescence in CPD towards the same.
IV. CONCLUSION
For the reasons set forth above, this Court DENIES Defendant City of Columbus’s Motion
for Summary Judgment (ECF No. 72).
IT IS SO ORDERED. ;
ALGENON FV. MARBLE
CHIEF UNITED STATES DISTRICT JUDGE
DATED: September 27, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378689. Public record. Not legal advice.