Williams Ex Rel. Allen v. Cambridge Board of Education

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Williams et al. v. Cambridge Nos. 02-3200/3207

ELECTRONIC CITATION: 2004 FED App. 0169P (6th Cir.) Bd. of Educ. et al.

File Name: 04a0169p.06

Before: DAUGHTREY, MOORE, and SUTTON, Circuit

Judges.

UNITED STATES COURT OF APPEALS

_________________

FOR THE SIXTH CIRCUIT

_________________ COUNSEL

RHYS WILLIAMS, a minor, by X ARGUED: James D. McNamara, Columbus, Ohio, Mark E.

his mother and next friend, - Jurkovac, Columbus, Ohio, for Appellants. Brian M. Zets,

- SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, Mark

Gail Allen, et al.; GAIL D. Landes, ISAAC, BRANT, LEDMAN & TEETOR,

- Nos. 02-3200/3207

ALLEN; DAVID ALLEN, - Columbus, Ohio, Richard W. Ross, MEANS, BICHIMER,

Plaintiffs-Appellants > BURKHOLDER & BAKER CO., Columbus, Ohio, for

,

(02-3200), Appellee. ON BRIEF: James D. McNamara, Columbus,

- Ohio, Mark E. Jurkovac, Rick J. Abraham, Columbus, Ohio,

- for Appellants. Brian M. Zets, SCHOTTENSTEIN, ZOX &

ZACHARY DURBIN , a minor; - DUNN, Columbus, Ohio, Mark D. Landes, John S. Higgins,

BOBBI LA CROSS , - ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio,

Plaintiffs-Appellants - Richard W. Ross, MEANS, BICHIMER, BURKHOLDER &

(02-3207), - BAKER CO., Columbus, Ohio, for Appellee.

-

- SUTTON, J., delivered the opinion of the court, in which

v. - DAUGHTREY, J., joined. MOORE, J. (pp. 25-45), delivered

- a separate opinion dissenting in part and concurring in part.

CAMBRIDGE BOARD OF -

EDUCATION , et al., - _________________

-

Defendants-Appellees. -

OPINION

N _________________

Appeal from the United States District Court

for the Southern District of Ohio at Columbus. SUTTON, Circuit Judge. On April 20, 1999, fourteen

No. 00-00388—Algenon L. Marbley, District Judge. students and one teacher were killed at Columbine High

School in Littleton, Colorado. Two students at the school, we

Argued: July 31, 2003 eventually learned, were responsible for the killing spree.

Decided and Filed: June 4, 2004 On Friday, April 23, 1999, three days after Columbine, a

trio of students at Cambridge Junior High School in

Cambridge, Ohio reported to the Vice-Principal of the school

1

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that Rhys Williams and Zach Durbin planned to commit acts Junior High School. Both students had previous criminal

of violence at the school. Rhys and Zach had prior criminal problems and were on juvenile probation in April 1999. Rhys

records and both were then on juvenile probation. After also had been disciplined by the school for several incidents

interviewing the three students, after taking written statements of threatening behavior.

from each of them, after interviewing Zach Durbin (the only

one of the two boys at school that day) and after consulting On Wednesday, April 21, 1999, one day after the

with probation officers, school officials initiated “emergency Columbine tragedy, the two boys went to Rhys’s house.

remov[al]” proceedings against the two students. As a result, While there, they watched television coverage of the

juvenile parole officers took both students into custody at a Columbine shootings with Rhys’s mother, Gail Allen. At

juvenile detention facility for the weekend. On the following some point that afternoon, Rhys asked his mother what she

Monday morning, the juvenile court placed both students on would do if Rhys and Zach did “something like that.” JA at

house arrest for several days, and they did not return to school 469 (Durbin Dep.).

for ten days in Zach’s case and for several days in Rhys’s

case. According to school officials, the boys stayed home Later that night Zach spoke with a classmate, Kayla

through voluntary decisions of their parents. According to the Hollins, on the telephone. According to Zach, he merely told

boys’ parents, the school suspended them for these periods of Kayla about his conversation with Rhys and Gail Allen earlier

time. The juvenile prosecutor ultimately did not file charges in the day. According to Kayla, Zach told her that he was

against Rhys Williams, but he did file an aggravated “getting sick of the way things were going” and was planning

menacing charge against Zach Durbin. In September 1999, on bringing a gun to school or bombing the school. JA at 252

Zach was acquitted of the charge. (Hollins Test.). Kayla alleged that Zach also said he would

kill the “preps” first, JA at 147 (Hollins Recorded

In the aftermath of the arrests, the boys and their parents Statement)—meaning that he would kill Sadie LePage and

filed constitutional tort claims under 42 U.S.C. § 1983 (along that Kayla would be “one of the first to go,” JA at 532

with several state-law claims) against the relevant school (Hollins Dep. I)—but that he would not hurt Katie Spittle

officials and law enforcement officers. In particular, they because he liked her, JA at 151 (Hollins Written Statement).

contended (1) that the local officials failed to establish

probable cause for the arrests in violation of the Fourth B. Friday, April 23, 1999

Amendment and (2) that the two boys received school

suspensions without due process in violation of the 1. Zach Durbin

Fourteenth Amendment. The district court rejected these

claims and several others as a matter of law. We affirm. On Friday morning of that week, two days after her

conversation with Zach, Kayla wrote a note to Sadie LePage,

I. saying that Zach “was going to bring a gun to school and

shoot us all because he was sick of bitchy preps.” JA at 152

A. Events Preceding the April 23rd Arrest (LePage Written Statement). Sadie showed the note to Katie

Spittle, another classmate. During the lunch period, Sadie

In April 1999, Rhys Williams and Zach Durbin were and Katie asked Zach whether the contents of the note were

fourteen years old and were in the eighth grade at Cambridge true, and he allegedly told them they were, a point that Zach

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disputes. After lunch, Sadie and Katie told school officials that he was talking to Rhys and they were seriously

about the threat. They first told Julie Orsini, the guidance thinking about it. Zac hates me so much because I broke

counselor, about the note that Kayla had written. Orsini up with him 1-2 months ago. And he said he was going

notified Vice-Principal William Howell about the matter and to spare Katie of all of this because he likes her.

relayed her impression that the girls were “visibly shaken up

[and] . . . feeling threatened.” JA at 576 (Howell Dep.). JA at 152.

Howell met with Sadie and Katie individually, and later

called Kayla to his office as well. All three girls spoke to And Katie said the following in her statement:

Howell about what had happened, then wrote statements in

which they described the events of that morning and their This morning in 2nd period (Band) Sadie LePage showed

interactions with Zach. In Kayla’s statement, she said the me the note. At lunch I asked Zac if it was really true,

following: and he said yes. He said him and Rhys were talking

about it. He pointed to Sadie and said she’s going first.

I talked to Zac on the phone Wednesday night & he said He said he was going to spare me, because he liked me.

he was sick of everybody, everyone was getting on his

nerves & he & Rhys Williams were talking about JA at 153.

bringing a gun to school & he was very serious about the

matter[.] [H]is other option was planting a bomb & After his meetings with the three girls and after obtaining

taking everyone out on the first (one) shot. But he had their statements, Howell contacted Assistant Superintendent

made very clear he would spare Katie Spittle because he James Spisak to inform him of the situation and to begin the

liked her. This morning I [said]to Sadie LePage I had emergency removal process with respect to Zach. Spisak

spoken to Zac & she asked what about & that is when I agreed that Zach should be removed from the school under

wrote Sadie telling her about our (mine & Zac’s) § 3313.66 of the Ohio Revised Code because of the

conversation. Half of the note is now gone. “continuing danger” he posed. In an effort to release Zach to

an adult, Howell initially tried to reach Zach’s mother, Bobbi

Id. LaCross, but she was unavailable. He then called Zach’s

probation officer, Jeffrey Hayes, who came to the school. At

Sadie said the following in her statement: roughly the same time, Howell notified Officer Randy LePage

and Detective Brian Harbin of the City of Cambridge Police

I was sitting in first period today and Kayla Hollins Department about the matter.

wrote me a note that said Zac Durbin was going to bring

a gun to school and shoot us all because he was sick of When Hayes arrived at the school, Howell briefed him

bitchy preps and he was going to start with me because about the situation, told him that the police had been notified

he hated me so much. Then it said that he said it would and showed him the three girls’ written statements. Hayes

just be easier to plant a bomb because he could get us all asked Howell “whether these [girls] were reputable students”

at once. Then in band (second period) I showed Katie because he wanted to determine “whether it was somebody

Spittle the note because I was scared and she took the trying to get even with Zach or that type of thing.” JA at 509

note to him at lunch and he said that it was really true, (Hayes Dep.). Howell confirmed the credibility of the girls’

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statements on the basis of their reputations as students. Hayes ordered Rhys’s arrest, although she admitted that she

then called his supervisor, Jean Stevens, the Chief Probation authorized his detention in a phone call with a Cambridge

Officer of Guernsey County, alerting her to the alleged police officer. Several Cambridge police officers arrived at

threats, the girls’ statements supporting them, the girls’ Rhys’s house on Friday afternoon and informed his mother,

reputations with Howell, the credibility of their statements Gail Allen, that he had been implicated in a bomb threat. In

from Howell’s perspective, and the possible police response, Allen called the probation department. Becky

investigation. Hayes told Stevens that Rhys was not at school Masters, the probation officer with whom she spoke,

that day and that police were looking for him. He then confirmed the police officers’ report and asked Allen to bring

recommended to her that Zach be removed from the school. Rhys to the department. Allen brought Rhys to the probation

Stevens authorized Hayes to remove Zach from the school department in Byesville, where Masters and a transportation

and to take him into detention at the Guernsey County officer handcuffed and shackled Rhys. He was eventually

Juvenile Probation Department. driven with Zach to Steubenville, held for the weekend and

returned to Guernsey County for an appearance in Juvenile

At this point, Howell removed Zach from study hall and Court on Monday, April 26th.

told him about the girls’ allegations. In response, Zach

confirmed that he knew about the note and acknowledged that 3. City of Cambridge Police Officers

Rhys (in his presence) had been “joking around” when talking

to Gail Allen about the incident at Columbine, JA at 581 Captain Randy LePage and Detective Brian Harbin of the

(Howell Dep.), but denied the rest of Howell’s accusations, City of Cambridge Police Department received a call from

JA at 473 (Durbin Dep.). After the interview, Howell asked Howell on the afternoon of April 23rd. By the time they

Hayes to escort Zach from the school. While Hayes claims arrived at the school, however, Hayes and Zach had already

that he did not arrest Zach at this point, he acknowledges that departed. Because Sadie was Captain LePage’s daughter,

Zach was not at liberty to leave and that he handcuffed Zach LePage recused himself from any further involvement and

in conformity with the probation department’s policies. Harbin assumed control of the investigation. Harbin collected

Hayes signed Zach out of the school late Friday afternoon and the written statements that Howell had taken from the three

escorted him to the Guernsey County Probation Department girls, then took a statement from Howell before leaving. He

in Byesville. Upon arrival, Zach was shackled and also took more formal statements from each of the girls at the

handcuffed to a chair. Eventually, Zach was driven to the police station later that afternoon. There is no evidence that

Jefferson County Juvenile Detention Facility in Steubenville, Harbin ordered Rhys’s apprehension, but Harbin was in

where he remained over the weekend until he returned to charge of the investigation when Cambridge Police Officers

Guernsey County for his Juvenile Court appearance on arrived at Rhys’s home.

Monday, April 26th.

C. Monday, April 26th, 1999

2. Rhys Williams

On Monday, April 26th, the earliest day they could appear

Rhys was not involved with the investigation that took in juvenile court, Zach and Rhys were returned to Guernsey

place at the school on Friday, April 23rd, because he was not County. At the courthouse, they were separately interviewed

in school that day. Stevens claims that neither she nor Hayes by Harbin and later appeared together before Judge

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Urbanowicz of the Guernsey County Court of Common Pleas. “Notice of Suspension” for Zach was prepared on April 26th

Rhys and Zach both were placed under house arrest for a few in accordance with Ohio Revised Code § 3313.66, but the

days at the end of the hearing. Zach was also electronically school never took action on the notice, and it never officially

monitored as part of his house arrest. Later that week, Harbin suspended him.

transferred the results of his investigation to Roy Morris, the

Guernsey County Juvenile Prosecutor. Morris reviewed the When she did not receive any suspension papers, LaCross

information and charged Zach with making “menacing allegedly called Superintendent Thomas Lodge to inquire

threats” in violation of Ohio Revised Code § 2903.21. about receiving the papers and about the appeal process. She

Adhering to the guidelines for Guernsey County juvenile says that Lodge told her “he had got the suspension papers

proceedings, Harbin picked up a written statement of the and there was no recommendation for expulsion.” JA at 621

charge from Morris’s office, signed it, and filed it with the (LaCross Dep.). Lodge, however, claims official suspension

Clerk’s office. Morris declined to file any charges against papers for Zach did not cross his desk and that he told

Rhys because he believed probable cause did not exist that he LaCross that since no suspension was yet filed, “there’s

had committed, or was about to commit, a crime. Zach nothing to appeal at this point in time.” JA at 638 (Lodge

appeared before Judge Urbanowicz to face trial for the single Dep.). LaCross persisted and alleges that on May 21, 1999,

menacing charge on September 18, 1999 and was acquitted. she was able to obtain the original suspension papers. She

attempted to file a written appeal on May 24, 1999, but did

D. Suspension Issue not receive a hearing, as the school maintained there was no

initial suspension from which she could appeal. Howell and

Rhys and Zach stayed home from school for a period of Lodge note that a copy of the “Notice of Suspension” was

time following their appearance in juvenile court. Although indeed mailed to LaCross in late May 1999, but that without

their parents allege that Rhys and Zach were suspended, the further action the document alone did not constitute an out-of-

school disputes the point, claiming it never suspended them. school suspension.

Gail Allen acknowledges that she never received official

papers concerning a suspension for Rhys, noting that she kept E. Procedural History

him home from school in excess of a week because she

wanted to shield him from a potential backlash by his peers On March 29, 2000, Zach and his mother (Bobbi LaCross)

and because she accepted the advice of the school principal and Rhys and his parents (Gail and David Allen) filed this

who thought it would be in his best interests as a matter of lawsuit. They asserted a variety of federal-law

safety. claims—violation of the boys’ First, Fourth and Fourteenth

Amendment rights under § 1983, the existence of city and

Bobbi LaCross alleges that Howell asked Zach to sign a school customs that caused these constitutional violations and

paper concerning his suspension at the courthouse, then told the presence of a civil conspiracy to violate these rights. And

her that he planned to suspend Zach if he was convicted of the they asserted a variety of state-law claims—malicious

aggravated menacing charge. LaCross allegedly asked prosecution, false imprisonment, false arrest, defamation and

Howell about the possibility of appealing any suspension, to intentional infliction of emotional distress.

which he responded that he would mail her the necessary

papers. In his brief on appeal, however, Howell states that a

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On September 20, 2001, all of the defendants filed motions Public officials who perform discretionary functions

for summary judgment, which the district court granted. “generally are shielded from liability for civil damages

First, the court determined that the defendants had probable insofar as their conduct does not violate clearly established

cause to detain Rhys and Zach and accordingly rejected their statutory or constitutional rights of which a reasonable person

Fourth Amendment claims. Second, the court determined that would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

neither Rhys nor Zach was actually suspended from school 818 (1982). Two questions thus arise in this context: Did the

and accordingly rejected their Fourteenth Amendment claims. government officials violate a constitutional guarantee? And,

Third, the court concluded that Zach and Rhys could not if so, did the violation involve a clearly-established

substantiate their conspiracy claim. Fourth, the court rejected constitutional right of which a reasonable officer would have

the state false arrest and false imprisonment claims because been aware? See Saucier v. Katz, 533 U.S. 194, 201 (2001).

Rhys and Zach could not prove that their detentions were In the absence of an affirmative answer to both questions, the

unlawful. Fifth, the court rejected the state law claim of constitutional tort claims must be dismissed as a matter of

malicious prosecution because Harbin had reasonable law.

suspicion that Zach had engaged in menacing. Finally, the

court rejected the other claims because Rhys and Zach had A. Fourth Amendment Claim

failed to respond to the defendants’ summary-judgment

motion on them. The parties share common ground with respect to the

Fourth Amendment’s requirements in this area. As a general

On appeal, Rhys and Zach challenge the district court’s rule, a law enforcement officer may not seize an individual

resolution of their Fourth and Fourteenth Amendment claims. except after establishing probable cause that the individual

In addition, Rhys appeals his false arrest and false has committed, or is about to commit, a crime. See Beck v.

imprisonment claims, and Zach appeals his malicious- Ohio, 379 U.S. 89, 91 (1964). Probable cause means the

prosecution claim. “facts and circumstances within the officer’s knowledge that

are sufficient to warrant a prudent person, or one of

II. reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to

The customary rules for reviewing a summary-judgment commit an offense.” Michigan v. DeFillipo, 443 U.S. 31, 37

decision apply. We give de novo review to the district court’s (1979). Once “probable cause is established,” this Court has

decision. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490 added,

(6th Cir. 2002). A decision granting summary judgment is

proper where no genuine issue of material fact exists and the an officer is under no duty to investigate further or to

moving party is entitled to judgment as a matter of law. Fed. look for additional evidence which may exculpate the

R. Civ. P. 56(c). And in considering such motions, we give accused. In fact, law enforcement “is under no

all reasonable factual inferences to the nonmoving party. obligation to give any credence to a suspect’s story [or

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. alibi] nor should a plausible explanation in any sense

574, 587 (1986). require the officer to forego arrest pending further

investigation if the facts as initially discovered provide

probable cause.”

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Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (citations Durbin was going to bring a gun to school and shoot us all

omitted). At the same time, officers must consider the totality because he was sick of bitchy preps”; (2) “he said it would

of the evidence “known to them” when considering probable just be easier to plant a bomb because he could get us all at

cause, and in cases where they have both inculpatory and once”; and (3) “[Zach] was talking to Rhys and they were

exculpatory evidence they must not ignore the exculpatory seriously thinking about it.” According to Kayla Hollins:

evidence in order to find probable cause. Id. at 372. A “mere (1) “I talked to Zac on the phone Wednesday night & he said

suspicion” of criminality will not suffice. United States v. he was sick of everybody, everyone was getting on his nerves

Harris, 255 F.3d 288, 292 (6th Cir. 2001). & he & Rhys Williams were talking about bringing a gun to

school”; and (2) “he was very serious about the matter [;] his

The rub in this case is whether probation officers Hayes and other option was planting a bomb & taking everyone out on

Stevens—the two primary defendants with respect to this the first (one) shot.” According to Katie Spittle: (1) “At

claim—had probable cause to take Zach and Rhys into lunch I asked Zac if [the note] was really true, and he said

custody on Friday, April 23, 1999. In the district court’s yes. He said him and Rhys were talking about it”; and

view, the “information conveyed in the girls’ written (2) “[h]e pointed to Sadie, and said she’s going first.”

statements was sufficient for the Defendants to have had more

than a ‘mere suspicion’ of Williams’ and Durbin’s alleged Only after Howell vouched for the girls’ credibility, and

criminal activities.” Williams v. Cambridge Bd. of Educ., 186 indeed only after Hayes queried whether the girls could be

F. Supp. 2d 808, 816 (S.D. Ohio 2002). In response to this trusted, did Hayes credit this version of the events. In view

conclusion, plaintiffs argue that because Hayes and Stevens of Howell’s position as Vice-Principal, Hayes was justified in

relied on vague statements the girls made to Vice-Principal trusting Howell’s assessment of the three girls’ credibility and

Howell and did not test the reliability of the statements in respecting Howell’s superior position for doing so. On top

themselves, they did not have probable cause to detain either of this information, Howell separately met with Zach, who

of them. confirmed that he knew about the original note, but denied the

remainder of Howell’s accusations, contending that Rhys (in

The problem with this argument is that Hayes and Stevens his presence) had been “joking around” when they discussed

did not merely accept the girls’ three statements at face value. the Columbine incident with Gail Allen.

After two of the girls spoke to the guidance counselor, Julie

Orsini, about the threats, she passed along the information to On this record, the officers’ investigation sufficed for the

Vice-Principal Howell and explained that the girls “were task at hand. The question is not whether Zach made these

visibly shaken up; that—that they were feeling threatened threats but whether the defendants had probable cause to

because they had had a correspondence with Zach Durbin believe that he had made them. In the aftermath of

concerning threats to them.” JA at 576 (Howell Dep.). Columbine, the corroborated statements of three girls whom

Howell in turn spoke to all three girls, then asked each of Vice-Principal Howell deemed trustworthy permissibly

them to write statements about what had happened. The three cemented the probation officers’ probable cause

girls all conveyed the same essential information to Howell, determination—regardless of whether the concern was a

and their written statements matched their oral statements. shooting/bomb threat or criminal menacing and regardless of

The contents of the statements were anything but “kids will whether the suspect himself denied making those threats. At

be kids” material. According to Sadie LePage: (1) “Zac a minimum, the acknowledged statements established

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probable cause of aggravated menacing, particularly in the not change matters. An arrest grounded in probable cause

environment of that sobering week. See Ohio Rev. Code does not become invalid merely because the State chooses not

Ann. § 2903.21 (“No person shall knowingly cause another to to prosecute the individual or a jury opts for acquittal. See

believe that the offender will cause serious physical harm to Criss v. City of Kent, 867 F.2d 259, 262 & n.1 (6th Cir.

the person or property of another person . . . . Whoever 1988).

violates this section is guilty of aggravated menacing.”); see

also Cohen v. Dubuc, No. 3:99-CV-2566(EBB), 2000 WL B. Fourteenth Amendment Claim

1838351, at *4 (D. Conn. Nov. 28, 2000) (police officer had

probable cause to arrest a high school student after three Plaintiffs separately argue that the school officials violated

independent witnesses gave statements that, two days after the their due-process rights in suspending them without notice

Columbine tragedy, they heard the student make threatening and a hearing. We disagree.

comments about “shooting up” the school).

While the Due Process Clause applies to children and to

Separately, Rhys Williams and his parents argue that the public schools, the Supreme Court has long made clear that

second-hand references to him in the girls’ statements did not the procedural requirements of the Clause have considerably

establish probable cause for his arrest. “A close review of the less force when applied to discipline meted out by school

girls’ statements,” they argue, “reveals that these students officials to students under their care. Unlike juvenile criminal

made no claim that they had seen or heard [him] do anything proceedings, for example, hearings in connection with short

. . . [and] only reported that [Zach] told them he had ‘spoken school suspensions need not “afford the student the

to Rhys about it.’” Williams Br. at 33. They also claim that opportunity to secure counsel, to confront and cross-examine

Kayla’s conduct—first reciting her story in a note to a friend witnesses supporting the charge, or to call his own witnesses

two days after her initial conversation with Zach, then trying to verify his version of the incident.” Goss v. Lopez, 419 U.S.

to tear up the note, then becoming afraid when her story 565, 583 (1975). Imposing such formalities on a school

began to spread—shows she exaggerated her accusations. suspension proceeding would “not only make it too costly as

a regular disciplinary tool but also destroy its effectiveness as

The evidence, however, cannot be so readily parsed. While part of the teaching process.” Id. Before suspending a

we acknowledge that it is easier to dispense with Zach student for ten days or less, as a result, all that a school

Durbin’s claim than it is to resolve Rhys’s claim as a matter official must do is give (1) adequate notice of the charge

of law, the girls’ statements confirm that Rhys was indeed against the student, (2) an explanation of the evidence

connected to the matter. Just as importantly, Zach himself supporting the charge and (3) an opportunity for the student

confirmed to Vice-Principal Howell that he and Rhys were to respond. See id. at 581; Martin v. Shawano-Gresham Sch.

involved in all of the relevant conduct—whether one labels Dist., 295 F.3d 701, 706 (7th Cir. 2002) (“[U]nder Goss

the conduct a plan of violence, a threat of violence or an students have a right to only minimal process.”); Donovan v.

immature (but menacing) joke gone awry. Having concluded Ritchie, 68 F.3d 14, 17–18 (1st Cir. 1995) (applying these

that probable cause existed for the one boy that Friday requirements to a temporary school suspension that also

afternoon, it was reasonable as a matter of law for the barred participation in athletics and school activities, yet

probation officers to conclude that it existed for the other. noting that under Goss, “the mere fact other sanctions are

That Rhys was not eventually charged with menacing does added to a short suspension does not trigger a requirement for

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a more formal set of procedures”); C.B. ex rel. Breeding v. Q. He was allowed to go to school that entire week,

Driscoll, 82 F.3d 383, 386–87 (11th Cir. 1996) (noting that, correct? He was not under suspension? From April 26

in the short school-suspension context, “the process provided on, he was not under suspension, was he?

need consist only of ‘oral or written notice of the charges

against [the student] and, if he denies them, an explanation of A. No, he was not under suspension.

the evidence the authorities have and an opportunity [for the

student] to present his side of the story’”) (quoting Goss, 419 Q. So he just chose not to go to school that week?

U.S. at 582); Signet Constr. Corp. v. Borg, 775 F.2d 486, 490

(2d Cir. 1985) (citing Goss for the proposition that A. I guess a lot of us chose that he did not go that week.

“[s]ituations may occur where, given the burden a normal

proceeding would impose, the nature of the interests at stake, Q. How come?

the time limit for state action, and other circumstances, an A. I called the principal and asked about the work he’s

informal non-judicial hearing will suffice”). going to miss and whether to—I told her I was going to

Measured by these requirements, each plaintiff’s claim fails leave him out of school for a few days, this and that, and

as a matter of law—first because neither boy was in fact she said she’s not telling him not to come to school, but

suspended and second because, with respect to Zach, even if she would advise or suggest it would be a good thing that

he had been suspended, the process given him was all the he didn’t for the safety.

process that was due. We consider each claim in turn. JA at 437 (Allen Dep.).

1. Rhys Williams On this record, the district court correctly rejected this due

In the district court’s view, Rhys Williams and his parents process claim as a matter of law. Rhys’s mother

could not challenge the validity of the procedures used to acknowledged that her son was not suspended by the school

impose a suspension on Rhys because the school never district and that the decision to keep him home was hers, not

suspended him. We agree. the principal’s. Even if this decision came with the

principal’s support, that fact does not lay the necessary

Rhys and his parents claim that he “was kept out of school predicate for this claim—that the school district in fact

for a period of several days” following his court appearance. imposed a suspension.

Williams Br. at 24. And they observe that Vice-Principal

Howell wrote a memo on April 23, 1999 indicating that 2. Zach Durbin

“suspension papers for Zach and Rhys” had been prepared. The district court likewise rejected Zach Durbin’s due

Id. at 42. At the same time, however, they concede that “it process claim on the ground that the school merely initiated

appears that the suspension was never signed or filed.” Id. at a formal suspension procedure against Zach but never

24. And, most pertinently, Rhys’s mother acknowledged in followed through on it. We again agree, and add that, even if

her deposition that Rhys in fact was not suspended. Zach did receive an informal suspension, he received all of

the process to which Goss entitles him.

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Bd. of Educ. et al. Bd. of Educ. et al.

According to Zach’s mother (Bobbi LaCross), on Monday, student is criminally convicted of a charge. See generally

April 26th, Howell told her “Zach was going to be suspended; Ohio Rev. Code Ann. § 3313.66. Had Zach been found guilty

but if he was found not guilty [of the aggravated menacing of aggravated menacing, there is no reason to believe his

charge], then the suspension would be canceled.” JA at 617 “Notice of Suspension” would not have crossed Lodge’s desk,

(LaCross Dep.). LaCross interpreted this statement to mean setting the official school-district suspension process on its

that the school had imposed a ten-day suspension on Zach, proper course. On this record, we agree with the district court

which was “to be served immediately.” Durbin Br. at 15. that the school never issued the suspension, even if it did

There is little doubt that at this point suspension papers were initiate the suspension process, and accordingly this due-

prepared, Howell asked Zach to sign them, and it is fair to process claim should be dismissed.

infer from the record that Howell at least expected that a

formal suspension would be issued. But even if one assumes that the record creates a fact

dispute about whether Zach received an informal suspension,

At some point after this initial conversation between his procedural due-process rights were not violated. “[I]n

Howell and LaCross, she asked Superintendent Lodge for the connection with a suspension of ten days or less,” Goss

suspension paperwork so that she could file an appeal of the requires only “that the student be given oral or written notice

suspension, as authorized by Ohio law. See Ohio Rev. Code of the charges against him and, if he denies them, an

Ann. § 3313.66(D)–(E). Consistent with Howell’s previous explanation of the evidence that authorities have and an

statement to LaCross regarding the status of Zach’s opportunity to present his side of the story.” 419 U.S. at 581.

suspension, Lodge told her “there’s nothing to appeal at this The decision also provides that “[t]here need be no delay

point in time.” JA at 638 (Lodge Dep.). between the time ‘notice’ is given and the time of the hearing.

In the great majority of cases the disciplinarian may

The school eventually gave LaCross the prepared informally discuss the alleged misconduct with the student

suspension papers—though well after Zach had already minutes after it has occurred.” Id. at 582. Here, after taking

returned to school and not because the school actually written statements from the three girls, Howell called Zach to

followed through on the suspension, but because LaCross his office for questioning. He informed Zach of the

asked to see the proposed papers. Because Zach was found allegations against him and asked Zach for an explanation.

not guilty of the criminal charge of aggravated menacing in No doubt, there was little delay, if any, between the notice

September 1999, no suspension was ever issued (and none Zach received and his chance to respond, but under Goss that

appears on his record), no formal papers were served on Zach was all that was required. See 419 U.S. at 582; Kaelin v.

and his family, and no formal suspension procedures were Grubbs, 682 F.2d 595, 602 n.9 (6th Cir. 1982).

followed.

Nor was there a violation of Zach’s right to a hearing.

While the school district’s suspension policy stipulates that Again, Goss points the way. It explains that the student must

adequate notice and an opportunity for an informal hearing be “be[] given an opportunity to explain his version of the facts

given to a student before a suspension is issued, see Ohio at this discussion,” and the student should “be told what he is

Rev. Code Ann. § 3313.66(A), it nowhere stipulates when accused of doing and what the basis of the accusation is.”

and how school administrators are to suspend students. Nor 419 U.S. at 582. As this Court has observed, “‘informal give-

does it prohibit conditioning a suspension on whether a and-take between student and disciplinarian’ will satisfy the

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Bd. of Educ. et al. Bd. of Educ. et al.

procedural due process requirements for a suspension lasting reviewing the tenure decision. Rather, the issue is whether

for ten days or less.” Buchanan v. City of Bolivar, 99 F.3d Purisch was afforded the process due to protect his property

1352, 1359 (6th Cir. 1996) (quoting Goss, 419 U.S. at 584). right to a fair tenure review process”); Pro-Eco, Inc. v. Bd. of

Once Howell informed him of the allegations, Zach was given Comm’rs, 57 F.3d 505, 514 (7th Cir. 1995) (“Section 1983

a chance to respond. He explained the nature of his affords relief only if the Constitution is offended, and a

conversation with Rhys and Gail Allen on April 23rd, violation of a state procedural statute does not offend it.”).

admitted that Rhys (in Zach’s presence) had been “joking

around” about Columbine, and admitted that he knew about In the end, Goss establishes the minimal procedural

Kayla’s note. After this conversation, Zach may well have requirements necessary to protect a student in the context of

believed that the information before Howell did not suffice to a short-term school suspension. The notice Howell gave Zach

suspect him of trying to bomb the school or shoot its students. was satisfactory under Goss because Howell, as the relevant

But he cannot claim that he was denied the kind of “informal disciplinarian, discussed the alleged misconduct with Zach,

give-and-take between student and disciplinarian” that Goss who was given a chance to respond. Though expeditious and

requires for a ten-day suspension from school. Goss, 419 assuredly informal in nature, Zach received the rudimentary

U.S. at 584. process required by Goss when the suspension is ten days or

less. Suspended or not, in other words, Zach’s Fourteenth

Zach’s argument that his due-process rights were violated Amendment due-process rights were not violated.

because he did not receive written notice, see Ohio Rev. Code

Ann. § 3313.66(A)(1), and LaCross’s argument that she did C. State Law Claims

not receive written notice within one day of the supposed

suspension, see Ohio Rev. Code Ann. § 3313.66(D), are Rhys and Zach also appeal their state law claims. Rhys

unavailing. While they may be relevant state-law claims, they appeals his false arrest and false imprisonment claims, saying

do not affect our interpretation of the Fourteenth Amendment simply that they “rise or fall entirely on the issue of probable

because the liberty interest to which Zach’s due-process rights cause. For that reason, the facts and analysis . . . regarding

attach is his interest in his continued education, not his [his] . . . Fourth Amendment claims apply equally to these

interest in written notice. See Martin, 295 F.3d at 706 (noting claims under Ohio law.” Williams Br. at 43.

that in the context of a school suspension that allegedly did

not conform to provisions of state law, “failure to conform As to the false arrest claim, Hayes and Stevens, as

with the procedural requirements guaranteed by state law employees of a political subdivision performing a

does not by itself constitute a violation of federal due governmental function, are immune from tort liability unless

process” and that Goss has established the minimal due Rhys can show their “(a) . . . acts or omissions were

process required in the context of a short-term suspension); manifestly outside the scope of the employee’s employment

Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir. or official responsibilities; (b) [their] acts or omissions were

1996) (noting that in the context of an allegedly unfair tenure with malicious purpose, in bad faith, or in a wanton or

review, “[v]iolation of a state’s formal procedure [] does not reckless manner; [or] (c) [c]ivil liability is expressly imposed

in and of itself implicate constitutional due process concerns. upon [them] by a section of the Revised Code.” Ohio Rev.

. . . [T]he issue . . . is not whether [school administrators] Code Ann. § 2744.03(A)(6)(a)–(c). Rhys has not provided

conformed [with the school’s] . . . grievance procedure in any evidence that these defendants acted with malice, bad

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Bd. of Educ. et al. Bd. of Educ. et al.

faith or in a wanton or reckless manner. And because we III.

have already concluded that Hayes and Stevens had probable

cause to arrest and detain Rhys and Zach, the probation For the foregoing reasons, the district court’s decision is

officers’ actions were within the scope of their employment affirmed.

and in good faith.

As to the false imprisonment claim, Rhys must show Hayes

and Stevens confined him intentionally without lawful

privilege and against his consent in a limited area for a

nontrivial period of time. See Feliciano v. Krieger, 362

N.E.2d 646, 647 (Ohio 1977); see also Witcher v. City of

Fairlawn, 680 N.E.2d 713, 715 (Ohio Ct. App. 1996). The

detention must be “purely a matter between private parties for

a private end” in which there is no intention of bringing an

individual before a court. Rogers v. Barbera, 164 N.E.2d

162, 164 (Ohio 1960). Hayes and Stevens did not falsely

imprison Rhys because they confined him in accordance with

Ohio law.

Zach also appeals his malicious prosecution claim. To

prevail, he must establish “(1) malice in instituting or

continuing the prosecution, (2) lack of probable cause and

(3) termination of the prosecution in favor of the accused.”

Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio

1990). Officer Harbin is the only defendant who instituted a

prosecution in this case—charging Zach with aggravated

menacing, which requires proof that one knowingly caused

another to believe the offender would cause serious harm.

Ohio Rev. Code Ann. § 2903.21. Zach acknowledges that

Harbin’s complaint against him “included these elements and

further alleged that Zachary threatened the life of Sadie

LePage, as well as the lives of other students, with a gun or a

bomb.” Durbin & LaCross Br. at 28. Though the prosecution

ultimately terminated in Zach’s favor, Zach has failed to

allege any facts that demonstrate Harbin acted with malice

toward him in commencing this prosecution.

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Bd. of Educ. et al. Bd. of Educ. et al.

_____________________________________________ Zach have presented several genuine issues of material fact

concerning the circumstances of their arrests and suspensions,

DISSENTING IN PART, CONCURRING IN PART which would permit a reasonable jury to find in their favor.

_____________________________________________ At this stage of the litigation, we are charged only with the

task of assessing whether such a quantum of evidence has

KAREN NELSON MOORE, Circuit Judge, dissenting in been proffered and not with the responsibility to balance such

part, concurring in part. I respectfully dissent from Parts II.A evidence against facts to the contrary. As a result, I would

and II.B of the majority’s opinion. The tragic destruction at hold that the grant of summary judgment was improper with

Columbine High School in Littleton, Colorado etched respect to Rhys’s and Zach’s § 1983 Fourth Amendment

devastating images of adolescent rage run amok onto the claims against Jeffrey Hayes (“Hayes”) and Jean Stevens

national consciousness. The realization that the perpetrators (“Stevens”) and their § 1983 Fourteenth Amendment claims

of this violence were young teenagers crystallized latent fears against William Howell (“Howell”) and Thomas Lodge

that a new danger had emerged from within our own (“Lodge”).3

communities. In the weeks of national introspection that

followed, parents, students, and educators alike expressed

anxiety that copycat incidents were imminent and stood 3

I concur with the majority’s holding to the extent that it affirms the

vigilant against their occurrence. While I do not discount the district court’s grant of summary jud gment as to several other claims

reality that such an environment left these school and law asserted by Rhys and Zach. First, neither plaintiff appealed the grant of

enforcement officials with little choice but to make summary judgment with regards to the following claims: intentional

unenviable judgments under enormous pressure,1 I cannot infliction of emotional distress, defamation, violation of First Amendment

rights in contravention of § 1983, conspiracy to violate § 1983 , and the

conclude that post-Columbine trepidation over copycat crimes existence and enforcement of school and city policies that proxim ately

systematically discounts real factual disputes over the caused the violation of constitutional rights. Notably, neither plaintiff

violations of these students’ constitutional rights.2 Rhys and argued on appeal that an officially executed or tolerated custom or policy

directly led to and was proximately linked with unconstitutional behavior.

See Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993),

cert. denied, 510 U.S. 117 7 (1994 ). Thus, the plaintiffs are not appealing

1 the central claims against the institutional defendants. Litigants waive any

In fact, the Columbine sc hool district, the Jefferson Co unty Sheriff’s claims or defenses that they do not raise in their appellate briefs. Bickel

Departm ent, and the parents of the two Columbine killers have all been v. Korean Air Lines Co., 96 F.3d 151 , 153 (6th Cir. 1996).

sued for their failure to act upon real and credible threats. See Castaldo Second, Rhys’s and Zach’s § 198 3 Fo urth Amendm ent claims against

v. Stone, 192 F. Supp. 2d 1124 (D. Colo. 2001). The existence of such the school official and police department defendan ts fail as a matter of

cases should not, however, deprive students of legal redress for law because those defendants never “arrested” Rhys or Zach. “[A] person

constitutional infractions by schoo ls, police, and other local officials. has been ‘seized’ within the m eaning of the Fourth Amendment only if,

2

in view of all the circumstances surrounding the incident, a reaso nable

At least one other federal court vindicated the efforts of police person would have believed that he was not free to leave.” United States

officers following a threat in the wake o f the Columb ine tragedy in a case v. Mende nha ll, 446 U .S. 544, 554 (198 0). No police officers were present

that is distinguishable o n the facts and o bviously not binding on this at the school when Zach was arrested. Additionally, although Zach was

panel. See Cohen v. Dubuc, No. 3:99-CV -2566 (EBB), 200 0 W L literally “detained” by the school officials, none of the school official

1838351, at *4-6 (D . Conn. No v. 28, 2000) (the arresting officers defendants arrested or seized Zach such that they violated his F ourth

themselves interviewed the witnesses, revealing an actual date of attack, Amendm ent rights. See Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010,

and the threats were more coherent and violent). 1013 (7th C ir. 199 5) (“O nce un der the contro l of the school, students’

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I. BACKGROUND FACTS others in the past by prevaricating. It was only after the lunch

period that Sadie and Katie finally decided to inform school

I explicate my understanding of the facts because part of officials of the threat, approaching the school’s guidance

my disagreement with the majority stems from our somewhat counselor, Julie Orsini, who in turn contacted Vice-Principal

divergent interpretations of the record, particularly the facts William Howell.

surrounding Zach’s arrest. After the phone call on

Wednesday, April 21, 1999, during which Zach allegedly told Howell then took the lead role in “investigating” the

Kayla Hollins about his plan to kill the “preps” and incident. He met with Sadie and Katie before eventually

implicated Rhys in the process, Kayla made no mention of the calling Kayla to his office. All three girls wrote statements in

phone call to her parents, to her friends, or to school which they described the events of that morning and their

authorities for nearly two days. Kayla first discussed the interactions with Zach. Howell did not investigate the

alleged contents of the phone call in a note written to Sadie veracity of their claims; he instead assumed that the girls were

Le Page on Friday, April 23, 1999. A few hours and several telling the truth. He never saw the note that Kayla had

class periods later, the girls approached Zach and asked him written. At some point after he spoke with the girls, Howell

whether the note’s contents were true, allegedly receiving an began the process of “emergency removing” Zach from the

affirmative answer. Zach disputes that he confirmed the school, Howell contacted Assistant Superintendent James

note’s veracity, and before he had a chance to read the note, Spisak (“Spisak”), who agreed that Zach needed to be

Kayla ripped the note in two, allegedly because she did not transferred out of the school because of a “continuing danger”

want Zach to read the note and because she did not want him that Zach posed. See Ohio Rev. Code § 3313.66(C).

to get in trouble. In her testimony at Zach’s trial, she

intimated that the note and the following drama were jokes, After failing to reach Zach’s mother, Howell called Hayes,

and that she did not expect or want Zach to get arrested. Zach’s probation officer, so that Howell could release Zach to

Other facts bolster the conclusion that Kayla may have an adult. Hayes and Howell spoke twice before Hayes arrived

fabricated or embellished her conversation with Zach; Kayla at the school, and during the second phone call, Howell

was reported to exaggerate at times and had caused trouble for informed Hayes of the girls’ claims that Zach had threatened

them with violence. Either before going to the school or

while in transit, Hayes spoke with Stevens, his supervisor and

the Chief Probation Officer of Guernsey County, and

movement and location are subject to the ordering and direction of erroneously informed her that two of their juvenile probation

teachers and administrators.”). Furtherm ore, with regards to R hys’s “clients” were implicated in a bomb threat. Hayes mentioned

arrest, summary judgment was app ropriate for all the defend ants, except that the Cambridge police had begun an investigation, but

for de fendant Steve ns, as on ly Stevens was involved in Rhys’s arrest.

Third, the district court properly granted summary judgment on

Hayes did not name any officers, and he later testified that he

Rhys’s and Zach’s § 1983 F ourteenth Amendm ent claims against the did not see any police officers when he arrived at the school.

Probation Department defendants (Hayes, Stevens) and the Cambridge

Police Department defendants (LePage, Harbin, City of Cambridge) Upon arrival, Hayes met with Howell, who informed Hayes

because they have no authority over suspensions in the Cambridge about the statements of the three girls. Hayes asked Howell

schools. “whether these [girls] were reputable students,” because he

Fourth, I concur fully with the majority’s discussion of the state-law

claims.

wanted to determine “whether it was somebody trying to get

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Bd. of Educ. et al. Bd. of Educ. et al.

even with Zach or that type of thing.” Hayes Dep. at 21.4 The “joking around” consisted of Rhys asking his mother

However, Hayes never spoke with girls; he did not assess the what she would do if he and Zach perpetrated an act like the

girls’ credibility himself, nor did he conduct an in-depth tragedy that befell Columbine, but it did not include any

investigation. Hayes testified that his decision to seize Zach indication that Zach or Rhys intended to harm anyone. Zach

was based on the girls’ written statements, Howell’s stated that he did not “joke around” with Rhys’s mother. The

understanding of the contents of Kayla’s torn note, Howell’s majority believes that Zach informed Howell about Rhys’s

intuitions about Zach, and Hayes’s belief, shaped primarily by “joking around.” However, Zach’s deposition does not

Howell, that the girls were reputable sources. However, indicate that he told Howell that either he or Rhys had been

Hayes did not learn that Kayla had a reputation, even among joking around with Rhys’s mother. His deposition testimony

her friends, for embellishment of the truth, nor did he learn about his discussion with Howell is as follows:

that Kalya had disciplinary problems in the past.

Q: Tell me what happened when you got to the office.

The details of Zach’s arrest are critical. There are several

nontrivial disputes concerning the few minutes preceding A: We went in Mr. Howell’s office, and he closed the

Zach’s arrest, the significance of which plays no small role in door, and Mr. Howell told me that there had been a

my decision to dissent. Howell called Zach into his office note circulating and three girls came to the office

and questioned him about the girls’ accusations. Howell with the note and told him that I was — me and

stated: “When questioning Zach in the office, he had Rhys said we was going to blow up the school.

indicated that he was joking around and the statement was,

You know how Rhys is.” Joint Appendix (“J.A.”) at 581 Q: Do you know what he was talking about when he

(Howell Dep.). Howell also testified that Zach confirmed the said that?

contents of the note, although Howell gave contradictory

testimony about whether he ever saw the note or showed it to A: I knew what he was talking about after he said a

Zach. Compare J.A. at 594 (Howell Dep.) with J.A. at 296 note was circulating.

(Zach Durbin Trial, Howell Test.) (“[T]hey [the girls] stated

that Zach had written a note but I never was able to resurface Q: You knew what three girls he was talking about?

the note.”). A: Yeah.

For his part, Zach disclaimed that he had made any threats. Q: What did you say to that?

Zach stated in his deposition that Rhys had been “joking

around” with his mother, Gail Allen, when Rhys and Zach A: He just kept going on with the story and then — I

were discussing the Columbine incident with Allen several was like, no, that’s not true. And then he just kept

hours before Zach and Kayla’s telephone call. J.A. at 469-70. going on and then he asked me, he said, do you have

anything to say, and then I started telling him what

really happened about me being at Rhys’s house and

4 then my conversation with Kayla, and then that’s

Hayes was deposed on May 3, 200 1. His deposition does not appear

in the Joint Appendix, but a copy of the deposition is a part of the official

district court record.

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Bd. of Educ. et al. Bd. of Educ. et al.

when Jeff [Hayes] was like, “I’ve heard enough. Set II. RHYS’S AND ZACH’S § 1983 CLAIMS

down your books.”

Rhys and Zach assert two separate § 1983 claims based

J.A. at 473-74 (Durbin Dep.) (emphasis added). Zach stated upon alleged violations of their Fourth and Fourteenth

clearly in his deposition that he never told Howell that he had Amendment rights. I believe that the genuine issues of

joked with Kayla about “doing something like the kids did at material fact attendant to both claims require the reversal of

Columbine.” J.A. at 474. the district court’s grant of summary judgment.

During a second phone call with Stevens before Hayes A. The Fourth Amendment Claims

entered Howell’s office, Hayes reported that he had taken

statements from three girls whom he found to be reputable, Recognizing that all evidence and inferences from that

prompting Stevens to approve Zach’s “arrest.” At some evidence must be taken in a light most favorable to Rhys and

point, Hayes went into Howell’s office, but it is not clear at Zach, I believe that it is patently clear that there is a genuine

what point during Howell’s questioning of Zach this issue of material fact concerning whether or not Hayes and

occurred. It is also uncertain whether Hayes, as the actual Stevens had probable cause to arrest them.5 Probable cause

arresting officer, actually heard Zach admit that he had made means the “facts and circumstances within the officer’s

the threats, if Zach ever said such a thing. Hayes did not knowledge that are sufficient to warrant a prudent person, or

corroborate Howell’s assertion that Zach admitted to making one of reasonable caution, in believing, in the circumstances

the threats. Furthermore, Hayes never asked Zach to recount shown, that the suspect has committed, is committing, or is

his view of the day’s events. Hayes later stated: “I’m not the about to commit an offense.” Criss v. City of Kent, 867 F.2d

one that’s going to be investigating. I didn’t want him to say 259, 262 (6th Cir. 1988) (quoting Michigan v. DeFillippo,

anything to me. I never want the kid to say anything to me 443 U.S. 31, 37 (1979)). “The Fourth Amendment . . .

that, you know, I might have to testify against him or necessitates an inquiry into probabilities, not certainty.”

something like that. He did profess his innocence to me.” United States v. Strickland, 144 F.3d 412, 415 (6th Cir.

Hayes Dep. at 35-36. After some undefined but brief period 1998). In analyzing an officer’s actions, we must look at the

of time, during which Zach tried to exculpate himself, Hayes totality of the circumstances from a reasonable officer’s

told Zach to set down his books, and then Hayes arrested

Zach.

5

Zach can assert a § 198 3 Fo urth Amendme nt claim against b oth

Rhys was not involved with any aspect of the investigation Hayes and S tevens, under theories of direct and supervisory liability,

that took place at the school on Friday, April 23, as he was whereas Rhys can pursue his § 198 3 Fo urth Amendme nt claim only

absent from school. Neither Hayes nor Stevens observed against Stevens based upon supervisory liability. Hayes arrested Zach and

another probation officer, Becky Ma sters, arrested Rh ys; Stevens ordered

Rhys or spoke with the girls about Rhys. Rhys’s name the arrest of both in her capacity as the supervisor of both probation

became entwined in these events only because of Kayla’s officers. The supervisor of a violating party may be liable for that party’s

note, as neither Howell nor Zach recalled that Rhys’s name violation of a third person ’s constitutional rights, if the supervisor

came up in the conversation in Howell’s office. “encouraged the specific incident of misconduct or in some other way

directly participated in it.” Bellamy v. Bradley, 729 F.2d 416 , 421 (6th

Cir. 198 4). It is not disputed that Stevens “at least implicitly authorized,

approved or knowingly acquiesced” in the detention of bo th students. Id.

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Bd. of Educ. et al. Bd. of Educ. et al.

perspective at the time of the arrest so as to avoid the effect of only thirdhand (Hayes spoke with Howell about Kayla’s note,

hindsight bias. Klein v. Long, 275 F.3d 544, 550 (6th Cir. which recounted the alleged conversation with Zach from the

2001). The arresting officer does not need to demonstrate that night before, during which Rhys’s name was briefly

prima facie proof exists before arresting a suspect, but the mentioned). Hayes did nothing further to investigate Rhys’s

officer’s underlying motivation for the arrest must be based involvement, nor did Stevens order him to do so. Hayes did

on something more than mere suspicion. See United States v. not speak to the girls, nor did he confirm Rhys’s involvement

Bennett, 905 F.2d 931, 934 (6th Cir. 1990). in the threat. While the girls did believe that Zach had

personally indicated the veracity of his threat, no comparable

Even though an officer does not have to search for evidence existed as to Rhys. The only evidence linking Rhys

balancing evidence after establishing that probable cause to the threat was Kayla’s note, which Hayes never saw, and

existed, an officer must consider all evidence, including Kayla’s statements, which Hayes never took. Both of these

exculpatory evidence, before making a probable cause were tangential pieces of evidence, as Kayla never actually

determination. Officers cannot make “hasty, unsubstantiated spoke with Rhys, a fact that Hayes never uncovered.

arrests with impunity.” Ahlers v. Schebil, 188 F.3d 365, 371

(6th Cir. 1999). Nor can they “simply turn a blind eye One could conclude that it was impossible for Stevens to

towards potentially exculpatory evidence known to them.” believe that probable cause existed based upon the extremely

Id. at 372. Furthermore, there can be no probable cause for an limited evidence gathered by Hayes, who had neglected to

arrest when it is based upon an officer’s reliance on vague speak with or observe the accused, to test the allegations of

information from a source of untested reliability. Wong Sun the principal witnesses, or to investigate Rhys’s involvement

v. United States, 371 U.S. 471, 482 (1963). In general, the more than superficially. Hayes relied on hearsay information

question of probable cause is one for the jury, unless it is clear about a student who was not even in attendance in school and

that only one reasonable determination is possible. Crockett whose name became intertwined in this web of events only

v. Cumberland College, 316 F.3d 571, 581 (6th Cir. 2003). because of Kayla’s note. Hayes then relayed this data to

Stevens. From that limited information, Stevens authorized

1. Rhys’s § 1983 Fourth Amendment Claim Against a detention. As the Supreme Court has said, there can be no

Stevens probable cause for an arrest where it is based upon an

officer’s reliance on vague information from a source of

Considering all available evidence and inferences from that untested reliability. Wong Sun, 371 U.S. at 482.

evidence in the light most favorable to Rhys, a reasonable Consequently, I believe that there is a genuine issue of

jury could conclude that the facts and circumstances of which material fact concerning whether Stevens had probable cause

Stevens was aware did not justify Rhys’s arrest because to order the arrest of Rhys.

Stevens relied blindly upon Hayes’s recommendations,

without confirming that Hayes had tested the allegations of 2. Zach’s § 1983/Fourth Amendment Claim Against

the three students, investigated the incident beyond accepting Hayes and Stevens

Howell’s version of the events, or even spoken with Rhys.

Compare Criss, 867 F.2d at 262; Ahlers, 188 F.3d at 372. The circumstances surrounding Zach’s arrest undoubtedly

When Hayes called Stevens, Rhys was not at school, and present a closer call, but ultimately I believe that the district

Hayes’s knowledge of Rhys’s potential involvement came

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Bd. of Educ. et al. Bd. of Educ. et al.

court’s grant of summary judgment was in error.6 Much of While Howell testified that Zach admitted making threats

the same rationale that supports my reasoning regarding against Kayla, but that Zach was only “joking around” in

Rhys’s claim against Stevens applies here. Hayes arrived at making such intimidations, Zach denies ever having made

the school mistakenly believing that the school was handling such threats. The existence of this factual dispute highlights

an impending bomb threat, a misunderstanding that he two problems with the majority’s holding. First, Zach

conveyed to Stevens. Relying solely on Howell’s own disputes that he ever admitted threatening Kayla. Zach told

limited investigation and Howell’s belief that the girls were Howell that in his conversation with Kayla he merely

“reputable and believable,” Hayes performed no additional recounted the details of an innocuous conversation with

investigation, foregoing an opportunity to assess for himself Rhys’s mother. In his deposition, Zach declared that he did

the girls’ credibility and to discover that at least one of the not confirm the veracity of the ripped note’s contents to

girls had a reputation for exaggeration. Howell. It is not for this court to decide whether Zach or

Howell is more believable; rather, we must assume that

A sharp difference between Zach’s and Rhys’s arrests is Zach’s story is true for the purposes of reviewing the district

that Hayes did actually speak with Zach. Hayes had an court’s grant of summary judgment. Second, even if Zach did

opportunity to assess Zach’s behavior and his credibility, but make such an admission, there is no evidence that Hayes

Hayes declined to hear Zach’s recounting of events, mainly heard it, and thus it could not have informed his probable

out of a belief that this would protect Zach. This deprived cause determination. As the arresting officer, it is Hayes’s

Hayes of the ability to make a grounded determination that he probable cause calculus, and not Howell’s, with which we

had probable cause to arrest Zach. I do not endorse a should be concerned. The majority appears to focus on

wholesale rule that law enforcement officials investigating a Howell’s determination of the trustworthiness of the three

crime or a threat of a crime must always speak with the girls, but it is Hayes’s probable cause determination, not

alleged perpetrator before determining that probable cause Howell’s, that is the focus of this case. Neither Howell nor

exists, particularly when sufficient inculpatory evidence is Hayes suggest that Zach admitted to having made the threats

apparent to the arresting officer. See Klein v. Long, 275 F.3d in Hayes’s presence or that Howell told Hayes about the

544, 551 (6th Cir. 2001) (holding that officers had probable supposed “confession” before Hayes decided to arrest Zach.

cause to arrest without questioning the suspect when officers

responded to a domestic violence 911 call and immediately There is no doubt that Hayes was faced with a difficult and

saw a visibly upset and bleeding woman who told the officers delicate choice. He arrived at the school and was told by

that her husband had physically harmed her). Nonetheless, Vice-Principal Howell that Zach, who had a history of prior,

when sufficient inculpatory evidence is not immediately albeit nonviolent, juvenile delinquency, had threatened

obvious, an arresting officer has done little to investigate the several students two days after the Columbine disaster.

threats allegedly made by the accused, and the officer has not However, Hayes, as a probation officer, had little experience

spoken with the principal accusers, the determination of in investigating crimes or potential crimes. See Hayes Dep.

probable cause is undermined. at 25 (“We don’t normally investigate things. We are asked

to act on an emergency basis . . . . That’s why I wanted to see

what these statements said, to see if it was, you know,

6

For simplicity’s sake, Stevens and Hayes are grouped together in possibly believable, and then we would call on law

this discussion, because both are liable for H ayes’s actions. enforcement to investigate it . . . .”); see also United States v.

Nos. 02-3200/3207 Williams et al. v. Cambridge 37 38 Williams et al. v. Cambridge Nos. 02-3200/3207

Bd. of Educ. et al. Bd. of Educ. et al.

Guzman, 75 F.3d 1090, 1096 (6th Cir.), cert. denied, 519 U.S. claimed that her high school violated her Fourth Amendment

906 (1996) (“Law enforcement officers naturally reach rights by strip searching her without probable cause as part of

conclusions based on their training and experience.”). He did an investigation into allegations that she had been consuming

not ask Howell to describe in more depth the chain of events drugs at the school. Id. at 882. A fellow student first alerted

that led to Zach’s emergency removal. He did not inquire of the principal to the problem by claiming that she had

Howell about the bases for Howell’s determination that the witnessed the plaintiff and a friend ingesting drugs in class.

girls were telling the truth. He did not interview any of the The principal verified that the accusing student had no

students involved, either the girls or Zach, to make his own animosity towards the plaintiff, ruling out any ulterior

assessment of their reliability. He did not investigate whether motives of the accuser, and then launched a multiday

Zach even had access to weapons that would allow him to investigation of the plaintiff. He approached several of the

carry through the alleged threat. Hayes did not make another plaintiff’s teachers, who corroborated her strange behavior

attempt to contact Zach’s parents or to keep Zach at the and reported a note that the plaintiff wrote in which she

school until his parents could be reached, despite the fact that referred to drug use. The principal also collected information

there was no suggestion that Zach would have engaged in any from the school’s guidance counselor, the plaintiff’s aunt, and

violence waiting for his parents at the school. This was not a the friend’s father, all of whom expressed concern that both

situation in which Howell or another member of his staff students may have been taking drugs. The principal acted

observed Zach make a threat or commit any act of violence or only when the student who first made the allegation again

in which multiple warning signs about Zach’s behavior and approached him and complained for the second time that the

history made his alleged threat more likely. By analogy, it plaintiff was ingesting drugs in class. Id. at 883.

would surprise the reasonable person if the police could have

probable cause to arrest him or her based solely upon hearsay, We held that reasonable suspicion — the standard set forth

where no observable evidence supported an allegation of in New Jersey v. T.L.O. — did exist for the strip search in

wrongdoing and the police failed to question either the Williams. Based upon T.L.O.’s analogy to the reasonable-

accuser or the accused, but instead relied on the statement of suspicion standard set forth in Terry v. Ohio, 392 U.S. 1

a third party to whom the accuser recounted the hearsay. (1968), we wrote, “We can correlate the allegations of a

student, implicating a fellow student in unlawful activity, to

Our decision in Williams v. Ellington, 936 F.2d 881 (6th the case of an informant’s tip,” which by itself meets the

Cir. 1991), provides some contrast about the level of threshold for reasonable suspicion. Williams, 936 F.2d at

investigation that must take place before school officials can 888. Yet, when “there is concern that students will be

act, although the legal question in Williams concerned motivated by malice and falsely implicate other students in

probable cause to search as opposed to probable cause to wrongdoing, that type of situation would be analogous to [an]

arrest. See New Jersey v. T.L.O., 469 U.S. 325, 341-42 anonymous tip,” which does not establish reasonable

(1985) (establishing that a student search “does not require suspicion in the absence of further investigation. Id. at 888-

strict adherence to the requirement that searches be based on 89. We upheld the lower court’s dismissal of the plaintiff’s

probable cause” and stating that a search will satisfy a suit in Williams because in addition to the complaining

“reasonableness” requirement “when there are reasonable student’s “tip,” which the principal determined was not borne

grounds for suspecting that the search will turn up evidence” of malice, the principal uncovered strong evidence during his

of an illegality). In Williams, the plaintiff, a teenage girl,

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Bd. of Educ. et al. Bd. of Educ. et al.

ensuing investigation, including the suspicions of the B. Fourteenth Amendment Claims

plaintiff’s family that she was using drugs.

The majority also errs in its determination that summary

Juxtaposing the events in Williams with the facts of this judgment was proper as to the § 1983 Fourteenth Amendment

case demonstrates the insufficiency of the investigation of claims. The Fourteenth Amendment’s guarantee of

Zach’s threat. Both Howell and Hayes satisfied themselves procedural due process requires that, for a suspension of no

that neither Kayla nor the other girls leveled these accusations more than ten days, a school administration give a student

against Zach out of malice; accordingly, Kayla’s allegations notice of the charge(s) against him, an explanation of the

may be best analogized to an informant’s tip. While these evidence underlying those charges, and an opportunity to

allegations may have created a reasonable suspicion for attend a hearing during which the student can present a

Howell or Hayes to search Zach for weapons, without further defense. Goss v. Lopez, 419 U.S. 565, 581 (1975); see also

investigation, they did not present “facts and circumstances Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000) (citing

. . . sufficient to warrant a prudent person, or one of Goss for principle that students cannot be suspended without

reasonable caution, in believing, in the circumstances shown, an opportunity for a hearing). In general, the hearing, which

that the suspect has committed, is committing, or is about to can be informal, should occur before the student is removed

commit an offense.” Criss, 867 F.2d at 262. Unlike the from the school, although this is not necessary for a procedure

principal in Williams, Hayes did not engage in any further to pass constitutional muster. Buchanan v. City of Bolivar, 99

investigation of Zach or his threats. Hayes did not necessarily F.3d 1352, 1359 (6th Cir. 1996).8 The parties chiefly

need to spend days investigating the incident before

concluding that he had probable cause, but Hayes could have

conducted at least some minimal level of investigation in a violation involved a clearly established right of which a reasonable officer

short period of time that afternoon. Taking into account the would have known; and 3) whether the plaintiff adduced sufficient facts

totality of all the facts and circumstances of which Hayes was to prove that the officer’s actions were unreaso nable in light of the

aware, there are enough factual disputes to permit a constitutional right. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).

I do not think it can presently be determined whether Hayes and Stevens

reasonable jury to conclude that Hayes, and Stevens through are entitled to qualified immunity because “[s]ummary judgment is not

her supervisory role, violated Zach’s Fourth Amendment app ropriate if there is a genuine factual dispute relating to whether the

rights by arresting him without probable cause.7 defendants committed acts that allegedly violated clearly established

rights.” Dickerson v. McClellan, 101 F.3d 115 1, 11 58 (6th Cir. 19 96); see

also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (“Summary

judgment is not ap propriate if there is a genuine factual dispute relating

7 to whether the defendants committed acts that allegedly violated clearly

Because I believe that Rhys’s and Zach’s Fourth Amendment claims

should proceed beyond the summary judgment stage, Hayes’s and established rights.”) (quotation omitted).

Stevens’s qualified immunity argum ents mu st be taken into acco unt. 8

Pub lic officers who perform discretionary functions “generally are Under Ohio state law, a school board m ay suspend any student up

shielded from liability for civil damages insofar as their conduct does not to ten days, but it must give stud ents written notice of the inten tion to

violate clearly established statuto ry or co nstitutional rights of which a suspend and m ust pro vide students with an opportunity to appear at an

reasonable person would have known.” Ha rlow v. Fitzgerald , 457 U.S. informal hearing and challenge the reason for the intended suspension.

800, 818 (1982). The applicability of qualified immunity depends on: 1) See Ohio Rev. Code § 3313.66(A)(1)-(2). The Cambridge Board of

whether the facts viewed in a light mo st favorable to the plaintiffs Education established its own suspension and removal guidelines under

dem onstrate that a constitutional violation occurred; 2) whether the the auspices of § 3313.66(A). Under these procedures, a student may be

Nos. 02-3200/3207 Williams et al. v. Cambridge 41 42 Williams et al. v. Cambridge Nos. 02-3200/3207

Bd. of Educ. et al. Bd. of Educ. et al.

disagree over whether either student actually was suspended fact become evident. The absence of any paperwork

and not whether either student received adequate notice. The regarding Rhys’s suspension does not conclusively suggest

defendants do not contest the lack of notice because they that no suspension existed, particularly given Howell’s

argue that the parents of Rhys and Zach voluntarily kept them inconsistent testimony regarding both the existence of

from school during the ten days they were allegedly suspension paperwork and his intent to suspend the two

suspended. Because I would hold that a genuine dispute of students. Furthermore, Rhys’s mother did not keep Rhys out

material fact exists regarding whether or not the school of school solely because she alone feared a backlash against

actually suspended the two students, I would reverse the Rhys; the principal, Mrs. Smith, advised her to keep Rhys out

district court. of school. It seems doubtful that the principal of the school

would advocate a student missing ten days of school or even

1. Rhys tolerate a student missing such a long period of time in the

absence of some formal or informal suspension.

Taking the evidence in a light most favorable to Rhys,

summary judgment should not have been granted. The 2. Zach

majority points to some pieces of evidence that cut against

Rhys’s claim. Rhys never received any paperwork regarding Zach presents even more evidence of a genuine factual

a suspension, a fact that Howell and Lodge latch onto as proof dispute regarding the existence of a suspension. Bobbi

that no suspension ever existed. Additionally, Rhys’s mother LaCross, his mother, never received official notice of the

stated that part of the reason for Rhys’s absence was her suspension, yet on April 26, Howell made Zach sign a paper

reluctance to expose him to any backlash from his peers. regarding the suspension and told LaCross “that Zach was

However, when one views the evidence in a light most going to be suspended; but if he was found not guilty, then

favorable to Rhys, as we must, genuine disputes of material the suspension would be canceled.” J.A. at 617 (LaCross

Dep.). LaCross asked Howell about appealing the

suspension, and he responded that he would mail her the

papers. After failing to receive the papers, LaCross called

suspended by the Superintendent or a principal for up to ten days so long Lodge several times to complain; her conversations with him

as there is notice of and opportunity for a preliminary hearing before the

suspension is meted out. During this hea ring the student must have a “full

suggested that Lodge had seen the suspension papers and was

opportunity” to state why he or she should not be suspended. However, frustrated that LaCross had not obtained them yet. Upon

this preliminary hearing is no t required if “a clear and present danger finally receiving the papers, long after the suspension period

exists.” W ithin one schoo l day after the suspension, the principal must had ended, LaCross tried to appeal, only to be told that there

notify the student’s parents about the reason for the suspension and notify was nothing to appeal because no suspension had ever issued.

them of their right to appeal. Then, a student may file a written appe al to

the Superintendent within five days. The Superintendent can upho ld the

This sequence of events creates a factual dispute about

suspension, reduce it, or reverse it co mple tely, but if he chooses to whether the school officials either suspended Rhys and Zach

maintain the suspension, the student then has the opportunity further to without notice or constructively suspended them, by telling

appeal the suspension to the B oard o f Education within five days. their parents that they were suspended, but not moving

Additiona lly, for “emergency removal,” a principal must provide a through the formal suspension process.

hearing concerning the removal “[a]s soon as practicable after a removal

in excess of twenty-four (24) clock hours but within three (3) school

days.” J.A. at 348 (Cam bridge Bd. of Educ . Procedures).

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Bd. of Educ. et al. Bd. of Educ. et al.

The majority also reasons that summary judgment was its analysis, that Howell’s testimony about Zach’s

proper because even assuming that a suspension existed, the “confession” is an accurate description of what actually

school satisfied the Goss due process requirements by giving occurred, but this presumption turns the summary judgment

Zach proper notice, an explanation of the evidence supporting standard on its head; we must assume, for purposes of

the charge, and an opportunity for Zach to respond. Maj. Op. summary judgment, that Zach’s story, not Howell’s, is the

at 20-22. The majority reaches this conclusion based upon correct one. Zach claimed that Howell did not give him much

the brief conversation Zach and Howell had in Howell’s of an opportunity to defend himself, because Hayes arrested

office shortly before Zach was arrested. I cannot concur for Zach before he could fully explain. While an “informal give-

two reasons. First, whatever the limited notice and and-take between students and disciplinarian,” Goss, 419 U.S.

opportunity for objection given to Zach, it occurred in the at 584, may constitute enough process to satisfy Goss, the

context of Zach’s emergency removal, not his alleged parties dispute precisely how much informal conversation

suspension. Howell questioned Zach to determine whether occurred between Zach and Howell. It is the place of the jury,

Zach should be emergency removed from the school. and not this court, to reconcile these conflicting testimonies

Emergency removal is different than suspension; the former regarding whether Zach had enough of an opportunity to

involves an immediate, limited duration expulsion from defend himself to satisfy Goss. Consequently, I do not agree

school, whereas the latter results in a longer absence from that the district court should have granted summary judgment

school. See J.A. at 348 (Cambridge Bd. of Educ. Procedures). to the defendants.

While Howell may have given Zach the required process with

regard to the emergency removal, the emergency removal III. CONCLUSION

reached its end point before Zach learned of his ten-day

suspension. Assuming, as we must, that Howell actually The issue presented to this court is not whether Rhys and

suspended Zach conditioned upon the result of Zach’s trial, Zach should ultimately prevail on the merits in their action

Howell afforded Zach no opportunity to review the evidence against the defendants. The issue is whether, taking all the

or respond to the charges that prompted the ten-day evidence in the record and the inferences from that evidence

suspension. The purposes of Goss would be defeated if a in the light most favorable to Rhys and Zach, genuine

school were permitted to institute multiple suspension disputes of material fact exist that would permit a reasonable

proceedings against a student, even if based upon the same jury to find in their favor. Whereas the majority assumes

incident, but only allowed the student to defend him or herself facts to be true that are actually disputed, I believe that

once. genuine issues of material fact surround Rhys’s Fourth

Amendment claim against Stevens, Zach’s Fourth

Second, there is a factual dispute over how much of an Amendment claims against both Hayes and Stevens, and both

opportunity Zach had to respond to the charges and evidence students’ Fourteenth Amendment claims against Howell and

brought against him in the emergency removal “proceeding.” Lodge. The district court thus erred in granting the

While Howell suggests that Zach had a chance to respond and defendants’ motion for summary judgment. The school,

admitted to making threats, Zach presents a completely police, and probation officials faced excruciatingly difficult

different recollection of the events of that afternoon. Zach decisions amidst the fear-drenched penumbra of Columbine,

stated in his deposition that he denied ever making the threats but in the presence of genuine issues of material fact, it is the

to Kayla. The majority again assumes, as it does throughout task of the fact-finder to evaluate the significance of these

Nos. 02-3200/3207 Williams et al. v. Cambridge 45

Bd. of Educ. et al.

contextual factors to the determination of probable cause and

the decision to suspend the students. For these reasons, I

respectfully dissent.