Appendix — Brothers v. Summit County (No. 08-458)

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” OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED

STATES

CLAUDIA BROTHERS AND DAVID L. CORSI,

PETITIONERS

Vv.

COUNTY OF SUMMIT, OHIO, MEMBERS OF ITS COUNTY

COUNCIL AND ITS COUNTY EXECUTIVE, £7 AL.,

RESPONDENTS

On Petition For Writ of Certiorari

To The United States Court of Appeals

for the Sixth Circuit

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

Warner D. Mendenhall and

Jacquenette S. Corgan

Counsel of Record

Law Offices of Warner

Mendenhall, Inc.

190 N. Union St.

Suite 201

Akron, OH 44304

(330) 535-9160

a ae . . Ane D>)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CLAUDIA BROTHERS, et al.

Plaintiffs,

vs.

COUNTY OF SUMMIT, et al.,

Defendants.

MEMORANDUM OPINION

(Resolving Docket NO. 38)

Magistrate Judge James S. Gallas

Case No. 5:03 cv 1002

May 25, 2007

Mr. David Corsi and Ms. Claudia Brothers

have sued the County of Summit, members of its

county council, its county executive, the Summit

County Sheriff, Drew Alexander, sheriff's officials

Linda Rinear, Larry Momchilov, Kelly Fatheree, in

both their official and individual capacities, John

Does Nos. 1 through 10, and “Websites Against Child

Porn,” under 42 U.S.C. §1983 for violations of Fourth

Amendment protections, and raised state law based

claims under this court’s supplemental jurisdiction

of violations of Article I Section 14 of the Consti-

tution of the State of Ohio, severe emotional distress,

“malicious, false and defamatory statements to the

media,” and “appropriation or exploitation of Plain-

tiffs’ personalities.”' Plaintiffs’ complaint arose from

' Because the complaint has never been amended in order to

provide the names of these unidentified individuals and

an investigation commencing on March 18, 2002 by

law enforcement officers of the Summit County

Sheriffs Department which led to Mr. Corsi being

arrested on May 30, 2002, on felony charges of: child

endangering; illegal use of minor in nudity-oriented

material; voyeurism; misdemeanor offenses of en-

dangering children, and disseminating material

harmful to minors. Mr. Corsi was released on bond

and a subsequent secret indictment was issued. Law

enforcement officers created a media stir, which

plaintiffs claim damaged their reputation. In res-

ponse to the criminal charges, Mr. Corsi obtained

counsel, who on October 29, 2002, moved to suppress

evidence obtained by allegedly defective search

warrants lacking probable cause. On December 13,

2002 prior to the suppression hearing, the Summit

County Prosecutor dismissed all charges.

The County of Summit, its sheriff and the

officials served with process of the complaint have

moved for summary judgment. Under Rule 56 of the

Federal Rules of Civil Procedure granting a motion

for summary judgment is only proper when there is

no genuine issue of material fact and the moving

entities, which have been only identified as John Does and

websites, that portion of the complaint is st~icken sua sponte

by the court. See Petty v. County of Franklin, Ohio, 478 F.3d

341, 345-46 (6th Cir. 2007); Collins v. Internal Revenue

Service, 1996 WL 279180 (Table) 86 F.3d 1155 (6th Cir. May

23, 1996); Ecclesiastical Order of the Ism of Am, Inc. v. Chasin,

845 F.2d 113, 116 (6th Cir. 1988); Harris v. City of Cleveland,

190 F.R.D. 215, 217 (N_D. Ohio 1999). Plaintiffs have had

adequate time to conduct discovery and to properly identify and

serve the dismissed defendants. Accordingly, the case shall

proceed only upon the identified defendants, who are movants

in this matter.

party is entitled to judgment as a matter of law. In

determining whether there is a genuine issue of

material fact all inferences drawn from the under-

lying facts contained in affidavits, pleadings, res-

ponses to discovery requests, and depositions must

be viewed in the light most favorable to the party

opposing the motion. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct.

1348, 89 L.Ed.2d 538 (1986); United States v.

Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d

176 (1962). A court must inquire "whether the evi-

dence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court

may not make credibility determinations or weigh

the evidence when ruling on a motion for summary

judgment. Anderson, 477 U.S. at 255. The burden is

upon the movant to demonstrate the absence of a

genuine issue of material fact. Adickes v. S. H. Kress

& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970); Smith v. Hudson, 600 F.2d 60, 63 (6th

Cir. 1979), cert. dismissed 444 U.S. 986 (1979). How-

ever, the nonmoving party is obliged to produce some

evidence other than mere pleadings themselves to

demonstrate that there is a genuine issue for trial.

Celotex Corporation v. Catrett, 477 U.S. 317, 324.

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-

moving party must produce significant probative

evidence in support of the complaint to defeat the

motion for summary judgment through affidavits or

admissions on file. Moore v. Phillip Morris Cos., Inc.,

8 F.3d 335, 339-40 (6th Cir. 1993). In the final

analysis, “the threshold inquiry . . . lis] whether

there is a need for trial -- whether in other words,

there are any genuine factual issues that properly

can be resolved only by a finder of fact because they

may reasonably be resolved in favor of either party.”

Anderson, 477 U.S. at 250; Moore, 8 F.3d at 340.

Once the nonmoving party has responded, the court

must view the facts in the light most favorable to the

nonmoving party. Darrah v. City of Oak Park, 255

F.3d 301, 304 n.1 (6th Cir. 2001).

The Investigation Commences: |

Plaintiffs David Corsi and Claudia Brothers

operated KD Daycare in Northfield Center, Ohio.

The business belonged to Mr. Corsi with Ms. Bro-

‘thers serving as administrator. On or about March

18, 2002, the Summit County Sheriffs Department

received a call from Captain Jeff Buck of the Remin-

derville Police Department. Captain Buck advised

Sheriffs Department Detective Linda Rinear that a

parent had called and reported that the owners of

the KD Day Care were taking children into a private

room alone. Capt. Buck asked the Sheriffs Depart-

ment to follow up on the call. Detective Rinear began

an investigation of Mr. Corsi and KD Day Care Cen-

ter and became the lead investigator on the case.

She had received training regarding the abuse and

exploitation of children. Detecct.:ve Rinear spoke with

Jean Hollan-Vincer, from the Ohio Department of

Job and Family Services, who had regulatory over-

sight of daycares in the region, to determine what

types of complaints they had received regarding the

operation of the daycare. She provided Detective

Rinear with a list of prior complaints with their

resolutions since Mr. Corsi and Ms. Brothers had

taken over running the daycare in 1996. Among

these complaints was one from October 2000 that

Mr. Corsi was sleeping at the daycare overnight and

showering there. Ms. Hollan-Vincer stated that she

spoke with Mr. Corsi about this complaint and about

why there was a bed in the daycare, and his res-

ponse was that he occasionally stayed overnight at

the center necessitating the bed. Ms. Hollan-Vincer

further advised Mr. Corsi that it was not a good idea

to have a bed in the daycare, nor was it a good idea

to be alone with the children in the room where the

bed existed. Ms. Hollan-Vincer also told Detective

Rinear that Ms. Brothers stated that she was a re-

tired Canton school teacher and that Mr. Corsi had

claimed to be a retired executive from Timken Co.

Inspector Keith Thornton of the Summit County

Sheriffs Department followed up on this past em-

ployment information and determined Mr. Corsi was

a retired furnace worker at Timken Co., not an

executive, and that Ms. Brothers was not a retired

teacher from the Canton Schools. Defendants now

concede, though, that Ms. Brothers was a retired

Canton City School teacher.

Detective Rinear then made a call to a com:

plaining parent. The parent said that she was un-

comfortable with the owners taking her child iato a

private room. She also gave Detective Rinear the

name of two daycare employees.

Detective Rinear then contacted and met with

KD Day Care employee Latasha Thomas, who stated

that Mr. Corsi did take children into the private

room both in groups and individually. The door re-

mained shut while the children were in the room.

She believed that Mr. Corsi was teaching the chil-

dren gambling and shooting guns. Marvianne Bar-

ett, another employee of the daycare, corroborated

that this was occurring. During their interviews Ms.

;

’

Thomas and Ms. Barrett volunteered the names of

several children who had been alone with Mr. Corsi.

These names included C.M. and M.Z. After obtaining

parental consent, Detective Rinear accompanied by

Detective Rogers interviewed C.M. and M.Z. — both

of whom were in the third grade. As related in Detec-

tive Rinear’s affidavit for search warrant that was

obtained following these interviews, C.M. related to

Detectives Rinear and Rodgers the following events

referring to Mr. Corsi as Mr. Dave, and Ms. Brothers

as Ms. Claudia:

C.M. told Affiant that Mr. Dave has

sleepovers at the Daycare Center three

times a year. One was at Halloween last

year. [C.M.] told Affiant that the boys try

to scare the girls. They decorate the day-

care center and hide cameras in the ceil-

ing and record the_girls. He is in a secret

club, which Mr. Dave [Corsi] is in charge

of. Only a few boys are allowed to be in the

club. [C.M.] stated to Affiant that when

they are in the club Mr. Dave gives them

nicknames, his is “[deleted to protect iden-

tity].” Mr. Dave lets them come to his pri-

vate room where they get to play with a

play station, watch scary movies, eat can-

dy, and sit on a bed that vibrates. [C.M.]

stated to Affiant that to get candy and ex-

tra privileges, the boys in the club have to

do a lot of work for Mr. Dave. Mr. Dave

tells them to chase the girls and when

they catch them they have to hit them.

[C.M.] states Mr. Dave says that is how

they show that they like the girls.

[C.M.] stated to Affiant that in Mr.

Dave's private room there is a bed that

vibrates and has drawers underneath it.

In the drawers Mr. Dave keeps a video

camera that Mr. Dave had [C.M.] use (sic)

to go up into a craw] space in the ceiling

and video tape the girls in the bathroom

changing clothes. The videos are viewed

by the boys in the secret club, and kept in

a drawer under the bed. Mr. Dave has

quarters to make the bed vibrate. [C.M.]

sits in the middle of the bed and Mr. Dave

sits on the bed with him and makes the

bed vibrate. [C.M.] states Mr. Dave shakes

a lot and has never fallen out of the bed.

[C.M.] states that Mr. Dave sleeps in the

private room and the internet is available

on the computer.

[C.M.] stated to Affiant there is a

television, a pool, toys, and a secret door

in the ceiling with a string that pulls the

door open and ladder down to get to the

crawl space. [C.M.] stated to Affiant the

last time he [sic] Mr. Dave had him video-

tape the girls was last year around Easter.

[C.M.] stated he asked Mr. Dave four

weeks ago where the camera and the

videotapes were and Mr. Dave told him

they were still in the drawer under the

bed. [C.M.] stated to Affiant that he has

taken tapes to Mr. Dave's car and put

them on the back seat and Mr. Dave said

he was taking the tapes home. [C.M] sta-

ted to Affiant Ms. Claudia gets mad at Mr.

ON Site ts ie

m4 ee a ee ge Ul Pe ney Oy ee LE a ee

Dave when he takes pictures of the

children.

[C.M.] stated to Affiant Mr. Dave has

told him that he is not allowed to tell any-

one about the secret club or [sic] they do

together or he will not be allowed to be in

the club anymore. [C.M.] states that he is

not permitted to enter the private room

when Mr. Dave is in the room with ano-

ther boy. [C.M.] states that if any one en-

ters the room when someone else is there

with Mr. Dave they will be kicked out of

the club for good, period.

[C.M.] told Affiant he knows what his

private areas of his body are. {C.M.] calls

his penis “pickle” and stated that Mr.

Dave told this name. He states that Mr.

Dave calls a girl’s private area hamburger.

[C.M.] states the boy in the club and Mr.

Dave talks a lot about girls. [C.M.] states

he called his buttocks “bvtt,” and that he

has no other private paris. He knows a

good touch from a bad touch. No one has

ever touched his “pickle,” he has not been

asked to touch anyone else’s “pickle.” No

one has told him to touch a girl’s “ham-

burger.” Mr. Dave tells them they can

chase the girls and kiss them. Mr. Dave

has boys fight with girls and the boys have

to win or they can't be in the club. [C.M.]

drew a picture of the private room for

Affiant and labeled items drawn in the

room.(Det. Rinear Aff. 47, Ex. A-1, Docket

No. 38).

ie i hs 28. ii

C.M.’s participation in these events was allegedly

through Easter of 2001.

In Detective Rinear’s interview of the other

child, M.Z. he stated that at the daycare he is in a

secret club and that Mr. Dave was in charge of the

club; that Mr. Dave was also in charge of the girls

club; that he has never told a secret; that the private

room has a couch, toys, TV, and bed that folds up

into a couch; that he watched movies like Robin

Hood with Kevin Costner, and that Mr. Dave takes

pictures of him and the other children. Following

these interviews Detective Rinear met with Prose-

cutor Dwayne Jones and discussed the case. It was

decided that the only way to determine whether

anything was going on was to conduct a search. De-

tective Rinear prepared an affidavit outlining her

entire investigation and providing all of the infor-

mation that she had received during said investi-

gation. The affidavit was presented to Cuyahoga

Falls Municipal Judge Linda Teodosio and a search

warrant was issued for a daytime search of the day-

care center.

Prior to conducting the search, Detective Rin-

ear requested Detective Kelly Fatheree to take a

walk through of the daycare to obtain the daycare’s

layout. Detective Fatheree took a 6-year old female

child with her and posing as a prospective customer,

she was given a tour by Ms. Brothers. Detective

Fatheree provided a summary of the layout of the

center to Capt. Larry Limbert and Detective Rinear

before they executed the search warrant. Detective

Fatheree, as related in Detective Rinear’s search

warrant affidavit, stated that “across from the

toddler room is a door with the words ‘private Eye’

and a round peephole. Detective Fatheree was not

permitted to see inside this room.” (Det. Rinear Aff.

q9, Ex. A-1).

The First Search

Sheriffs officers appeared at the daycare on

May 23, 2002 around 3:40 p.m., and presented the

warrant to Ms. Brothers upon their arrival. Detec-

tive Rinear did not participate in the actual search.

Each room at the daycare was searched with the

primary focus on the office and the private rooms

described by the children. As instructed Ms. Broth-

ers unlocked the offices and staff bathroom. In the

larger office (which has the word “Private Eye” cir-

cumscribing a peephole) they found a futon, a TV, a

box of various videotapes (including PG13 and PG

movies), and computer discs. The staff bathroom at-

tached to the “private eye” office was searched and a

9 mm. Jennings handgun with a loaded magazine

was found in a drawer along with a 12” inch knife

with a sheath, and a Sports Illustrated swimsuit

calendar.

Using a ladder propped against a wall in the

staff bathroom Sheriff's detectives pushed the drop

ceiling tiles aside, and found a 6-8 foot space above

the ceiling and below the roof of the building. In the

drywall composed firewall that separated the staff

bathroom from another bathroom,a square piece had

been cut out and taped back in place. There were

what appeared to be fingerprints on the ceiling

above this piece in the wall. The officers looked

through the cutout spot and saw that they were look-

ing at the ceiling of the adjoining bathroom.

In a separate private office (the “front office”)

were found a yellow VHS video camera in a plastic

bag. While the camera was being catalogued into

evidence the detective’s face appeared on the tele-

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vision screen in the separate private office where a

detective was working. The detectives had noticed

that each bathroom had ceiling tiles with holes in

the corners. The wireless camera lens fit perfectly

into these holes with the lens pointing toward the

toilet area of the bathroom. The detectives also found

pictures of naked women that had been downloaded

from the internet in the separate “private eye” office.

There was another swimsuit type calendar in this

office as well in plain sight with scantily clad women

on it. They also recovered another video camera,

VHS videotapes, video cassette recorder, two cut

pieces of drywall from the bathroom, a Polaroid cam-

era, a film projector, a micro tape recorder, and com-

puter discs. (Search Warrant Return, Defs.’ Ex. A-3)

Finding that the computer had likely been used to

access pornography off of the internet, the decision

was made to seize the computer hard drives, as well

as items that could have been used in videos with

the children — black bullwhip, and yellow plastic

foam hammer.

The items seized were taken back to the

Sheriffs Department. Stan Smith, a forensic in-

vestigator with the Akron Police Department in-

spected the hard drive of the computer and found

hundreds of images of naked women. Officer Smith

gave these imagés to Detective Rinear and the De-

tective Bureau for use in any potential case against

Mr. Corsi.

While at KD Day Care, Mr. Corsi removed ~

dropped ceiling panels to show Detective Rinear that

the holes were due to water damage. He related that

the building’s owner had placed hoses and funnels to

catch roof leakage to run to the bathroom sinks.

Both Dets. Rogers and Rinear observed the water

marks on the ceiling tiles and the funnel with hoses

poking through the ceiling tiles.

Ms. Brothers adds that after she unlocked the

doors to allow the detectives to gain access to the

office, and the “private eye” office and the staff rest-

room within the “private eye” office she waived her

right to silence and was asked about Mr. Corsi tak-

ing pictures. Ms. Brothers responded that she and

staff members had recently obtained a video camera

that Mr. Corsi had tested with the children playing

musical chairs. She was also asked about an incident

about a child being hosed down naked and she re-

lated the incident had occurred following an incident

of diarrhea.

Mr. Corsi also claims that he was interrogated

and explained that he had cut a square from the dry-

wall fiberboard above the staff bathroom to run a

television cable and he explained that he kept the

weapons at the KD Day Care Center for protection

when he spent the nights there because he lived over

50 miles away.

Mr. Corsi’s Arrest:

Following the search of KD Day Care, Detec-

tive Rinear filed complaints sworn before a deputy

clerk of the Cuyahoga Falls Municipal Court charg-

ing Mr. Corsi with the following felonies of:

1. Child endangering between January 1, 2001

and May 31, 2001 in violation of Ohio Rev.

Code §2919.22(B)(5) involving a juvenile

under the age of 18 in a sexually oriented

manner or nudity oriented matter.

2. Disseminating material harmful to juveniles

on May 23, 2002 in violation of

§2907.31(A)(3) involving a juvenile being

allowed to review or peruse any material or

live performance that is harmful to

juveniles.

3. Voyeurism between January 1 and May 31,

2001 in violation of § 2907.08(D)(5) in-

volving surreptitious invasion of privacy of

minor children at the KD Day Care Center,

to photograph minor children in a state of

nudity for the purpose of sexual arousal or

gratification, when the caregiver is serving

in a child daycare center.

Detective Rinear also filed a complaint for a

misdemeanor offense against Mr. Corsi of endan-

gering children on May 23, 2003, by creating a sub-

stantial risk to health or safety. She related in her

incident report dated May 22, 2002 that, “[C.M.]

states David Corsi had him videotape girls changing

in the bathroom at KD Day Care through a hole in

the ceiling. He further states that Mr. Corsi permit-

ted other boys in the daycare to view the tapes.”

(Defendants’ Ex. 5, Docket No. 38). Mr. Corsi was

arrested on May 29, or May 30, 2002 and appeared

in court and was released on $100,000 personal

recognizance bond.

Press Release:

On May 29, 2002 the Sheriffs Department

issued a press release announcing Mr. Corsi’s arrest

on two counts of child endangering, one count of

disseminating matter harmful to children and one

count of voyeurism. The press release identified him

as the president and co-owner of KD Day Care

Center and gave the center's address. Some details

of the May 23 search were disclosed including the

seizure of “a loaded 9 mm. pistol, a 12” Bowie knife,

a leather bullwhip, two video cameras, a computer,

various videotapes, a television monitor, a Polaroid

camera and photos depicting nudity.” The investi-

gation was reported as continuing and the release

asked that inquiries from parents and employees be

directed to the Summit County Sheriffs Office

Detective Bureau.

The Second Search:

Detective Rinear also wanted to search Mr.

Corsi’s home in Malvern, Carroll County, Ohio. De-

tective Rinear contacted a part-time judge from Car-

roll County to discuss obtaining a search warrant of

Mr. Corsi’s residence. She had wanted to conduct the

searches simultaneously with the daycare search,

but the Carroll County Judge advised her that the

judges there would probably not permit a simul:

taneous search and would grant a search warrant

depending on what was found in the search of the

daycare.

On May 31, 2002 Detective Rinear appeared

before Judge Charles A. Johnston of the Carroll

County Court, who was not the same part-time judge

she had spoken to previously. Her affidavit was es-

sentially the same as her affidavit from the first

search including the statements attributed to C.M.

Detective Rinear though had updated the affidavit

with the following paragraphs that included the

items seized from the May 23, 2002 search of KD

Day Care:

On May 23, 2002, the Summit County

Sheriffs Office executed a court ordered

search warrant at the K-D Day Care

Center and Preschool located at 105 E.

Aurora Road, Northfield Center Township,

County of Summit, State of Ohio. The

items seized included a loaded semi-auto

pistol, bowie knife, bullwip, wireless cam-

era, Monitor and recording device, and

photographs, which depict females,

dressed in various bathing suits.(Det.

Rinear, Aff. 914, Ex. A-6, Docket No. 38).

The affidavit also mentioned the recent arrest

of Mr. Corsi and the charges; and Detective Rinear

concluded in her affidavit that in her experience oth-

er items would be found in Mr. Corsi’s home.

The warrant was issued by the court and many

items were seized from Mr. Corsi’s home including

the computer, personal organizer, “floppy” disc,

photographs and magazines, “papers,” videotapes,

films, cameras and a calendar. Nothing i incrim-

inating was uncovered. 3

Indictment by Grand ide

Detective Rinear states in her affidavit that

this case was presented to the grand jury who issued

a secret indictment and the case proceeded through

the criminal process (Affidavit, Exhibit A, 965,

Docket No. 38). Subsequently the case began to un-

ravel when one juvenile witness claimed that he

could not remember, and a parent of another child

stated that he made up the story and would not test-

ify. /d. at (66. The Summit County Prosecutor de-

cided to dismiss the charges. All items seized were

returned except a Jennings 9 mm. handgun seized

from KD Day Care Center which was destroyed with

Mr. Corsi’s consent (See Voluntary Property Sur-

render, Defendant's Ex. A-11).

Plaintiffs’ claim in the complaint under the

first count, that defendants’ actions were in clear

violation of the Fourth Amendment of the U.S.

Constitution and Article I, Section 14 of the Ohio

Constitution. In the second count, defendants are

accused of causing severe emotional] distress in

violation of state law. In the third count, defendants

are accused of causing Mr. Corsi’s false arrest in

violation of federal and state constitutional provi-

sions. In the fourth count, defendants are alleged to

have caused Mr. Corsi’s false imprisonment in vio-

lation of constitutional provisions. In the fifth count,

defendants are accused of making malicious, false

and defamatory statements to the media, published

without privilege. In the sixth count, defendants’

“bad acts” aliegedly resulted in appropriation or ex-

ploitation of Ms. Brothers and Mr. Corsi’s person-

alities and publication of their private affairs due to

- defendants’ invasion of their privacy.

Federal Claims:

Plaintiffs’ federal claims are brought under 42

U.S.C. §1983 which, “. .. merely provides a mechan-

ism for enforcing individual rights ‘secured’ else-

where, i.e. rights independently ‘secured by the Con-

stitution and laws’ of the United States. For §1983

by itself does not protect anyone against anything.”

Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct.

2268, 153 L.Ed.2d 309 (2002), quoting Chapman v.

Houston Welfare Rights Org., 441 U.S. 600, 617, 99

S.Ct. 1906, 60 L.Ed.2d 508 (1979). Section 1983

“merely provides remedies for deprivations of rights

established elsewhere.” Radvansky v. City of Olm-

sted Falls, 395 F.3d 291, 301 (6 Cir. 2005).

Plaintiffs claim in their first, third and fourth

causes of action that defendants violated their

Fourth Amendment rights. The Fourth Amendment

of the U.S. Constitution secures, “[t]he right of the

people to be secure in their persons, houses, papers,

effects, against unreasonable searches and se1-

zures...” Constitutional protections are made ap-

plicable to the states through the Fourteenth

Amendment and apply with equal force in both civil

and criminal contexts. See Camara v. Mun. Court of

San Francisco, 387 U.S. 523, 589, 87 S.Ct. 1727, 18

L.Ed.2d 930 (1967); Thomas v. Cohen, 304 F.3d 563,

569 (6 Cir. 2002), cert. denied, 538 U.S. 1032 (2003).

County of Summit and Defendants

in their Official] Capacities:

Plaintiffs contend that the County of Summit,

and its executive, council members, the Sheriff and

his officers, in their official capacities, violated plain-

tiffs’ rights under the Fourth Amendment for pro-

curing search warrants without probable cause

resulting in the arrest and imprisonment of Mr.

Corsi without probable cause, and in his humili-

ation.? With respect to the individual defendants

named in their official capacities, this action is

equivalent to a suit against the county itself. See

Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.

3099, 87 L.Ed.2d 114 (1985); Johnson v. Karnes, 868

F.3d 877 (6 Cir. 2005), 398 F.3d at 877; Knott v.

Sullivan, 418 F.3d 561, 574-75 (6 Cir. 2005); Monel/

v. Department of Social Services of City of New

York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978).

County government has long been considered

to be a form of local government equivalent to muni-

cipal government. See Lincoln Cty. v. Luning, 133

U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). The

? Plaintiffs correctly did not name the sheriffs department as a

defendant entity. The sheriffs department is not a “person” for

purposes of §1983. See Petty, 478 F.3d at 347; Batchisk v.

Summit Cty. Sheriffs Dept., 1989 WL 26084 at *1 (Ohio Ct.

App. Mar. 15, 1989) (sheriff, not sheriff's department was

entity capable of being sued).

idea that a county was a “person” under 42 U.S.C.

§1983 flowed implicitly from Monel/’s holding that a

municipality was a “person” for purposes of §1983

and that Congress intended §1983 to apply to

municipalities and “other local government units.”°

See Monell, 436 U.S. at 691; Bad. of Cty. Com’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S. Ct.

1382, 137 L.Ed.2d 626 (1997).

There is no vicarious liability under respon- —

deat superior against a government entity for the

acts of its employees. Collins v. City of Harker

Heights, Texas, 503 U.S. 115, 120, 112 S.Ct. 1061,

117 L.Ed.2d 261 (1992); and see Bd. of Cty. Com’rs of

_ Bryan Cty., 520 U.S.-at 405-09; Polk Cty. v. Dodson,

454 U.S. 312, 325-26, 201 S.Ct. 445, 453-54, 70

L.Ed.2d 509 (1981); Canton v. Harris, 489 U.S. 378,

392, 109 S.Ct. 1997, 103 L.Ed.2d 412 (1989). “[A]

municipality cannot be held liable solely because it

employs a tort-feasor.” Monell, 436 U.S. at 691, 98

S.Ct. at 2036; Alioto v. City of Shively, Ky., 835 F.2d

1173, 1175 (6m Cir. 1987). Congress did not intend a

municipality to be liable for its employees’ dis-

cretionary action unless it was the product of official

municipal policy, as established by custom or policy,

including a policy of deliberate indifference. See Co/-

lins v. City of Harker Heights, Texas, 503 U.S. 115,

* To prevail under §1983, plaintiffs must establish that a

“person” acting under color of state law deprived them of this

right secured by the Constitution. See Radvansky, 395 F.3d at

302: and see Jnyo Cty, Cal. v. Paiute-Shoshone Indians . . ., 538

U.S. 701, 708, 123 S.Ct. 1887, 155 L.Ed.2d 933 (2003) (“[§1983]

permits ‘citizen[s]’ and ‘other person(s] within the jurisdiction

of the United States to seek legal and equitable relief from

‘person(s]’ who, under color of state law, deprive them of

federally protected rights.”)

wn ae i ee ee Be YS Se ae “> Pie

118, 112 S.Ct. 1061, 1065; 117 L.Ed.2d 261 (1992);

Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Pembaur

v. City of Cincinnati, 475 U.S. 469, 477, 106 S.Ct.

1292, 1297, 89 L.Ed.2d 452 (1986); City of Canton v.

Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 1204-

05, 103 L.Ed.2d 412 (1989). The government em-

ployee’s “discretion in the exercise of particular

functions does not, without more, give rise to muni-

cipal liability based on an exercise of discretion.”

Pembauer, 475 U.S. at 481-482; Miller, 408 F.3d at

814. “The plaintiff must also demonstrate that,

through its deliberate conduct, the municipality was

the ‘moving force’ behind the injury alleged. That is,

a plaintiffs must show that the municipal action was

taken with the requisite degree of culpability and

must demonstrate a direct causal link between the

municipal action and the deprivation of federal

rights” Board of County Com ’s, 520 U.S. at 404, 117

S.Ct. at 1388.

Plaintiffs must show that the county executive

and council members participated in the decisions in

issues in some manner, or implicitly authorized,

approved or knowingly acquiesced in unconstitu-

tional conduct. Anott, 418 F.3d at 574; Bellamy v.

Bradley, 729 F.2d 416, 421 (6m Cir.), cert. denied, 469

U.S. 845 (1984). Because liability cannot be based on

respondeat superior liability, plaintiffs’ failure to

demonstrate policy or custom requires dismissal of

the county executive and council members sued in

their official capacities. See Johnson, 398 F.3d at

877-78; Petty, 478 F.3d at 347-48.

With respect to the sheriff and law enforce-

ment officers, plaintiffs contend that the alleged

deprivations were the result of “custom,” particularly

the “custom” of the Sheriffs Department’s “repu-

Se ee ee Ee

ose Te a Le, UT. eee ee

Bt 6M he a Be

oa oe a” lh ee

tation” for abuse of the Fourth Amendment, and that

commensurate with that reputation, search war-

rants were issued without probable cause and crimi-

nal charges were issued without probable cause.

Plaintiffs incorporate their allegations from their

complaint that the Summit County Sheriffs De-

partment has a “reputation” for abuse of the Fourth

Amendment (Complaint 437), that the search war-

rants were illegal and issued without probable cause

(Complaint 439), and criminal charges proceeded

against plaintiff Mr. Corsi without probable cause

and with no evidence in support of conviction (Com-

plaint 439). Plaintiffs contend based on these alleged

“customary” violations that Mr. Corsi was arrested,

jailed and humiliated before the public.

There is no factual or legal foundation for this

argument. Granted, “an act performed pursuant to a

‘custom’ that has not been formally approved by an

appropriate decisionmaker may fairly subject a

municipality to liability on a theory that the relevant

practice is so widespread as to have the force of law

(emphasis supplied).” Board of County Com rs, 520

U.S. at 404, 117 S.Ct. at 1388; Monell, 436 U.S. at

690-91, 98 S.Ct. at 2035-2036. Plaintiffs’ bare as-

sertion, however, fails to show widespread depart-

mental tolerance for Fourth Amendment violations.

See Thomas v. City of Chattanooga, 398 F.3d 426,

429 (6 Cir. 2005); Doe v. Claibourne Cty., 103 F.3d

495, 507 (6» Cir. 1996).4 An isolated incident does

* There are at least four avenues a plaintiff may take to prove

the existence of a municipality's illegal policy or custom. The

plaintiff can look to (1) the municipality's legislative enact-

ments or official agency policies: (2) actions taken by officials

with final decision-making authority: (3) a policy of inadequate

training or supervision: or (4) a custom of tolerance or

not establish an official municipal policy. Board of

County Com rs, 520 U.S. at 405, 117 S.Ct. at 1389;

City of Oklahoma City v. Tuttle, 471 U.S. 808, 824,

105 S.Ct. 2422, 2436, 85 Ed.2d 791 (1985).

Essentially plaintiffs allege a lack of corrective

response from supervisory personnel. The Sixth Cir-

cuit has articulated the requirements for a claim on

the basis of an “inaction theory” where an unwritten

custom of tolerating federal rights violations is en-

trenched. See Doe v. Claiborne County, 103 F.3d

495, 507-08 (6: Cir. 1996), Thomas v. City of Chat-

tanooga, 398 F.3d 426, 429 (6 Cir. 2005), cert.

denied, 126 S.Ct. 338, 163 L.Ed.2d 50 (2005). Plain-

tiffs must show:

(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 un-

constitutional 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 “mov-

ing force” or direct causal link in the

constitutional deprivation. .

Thomas, 398 F.3d at 429; Doe, 103 F.3d at 508; and

see City of Canton, 489 U.S. at 388-89; Pembaur v.

City of Cincinnati, 475 U.S. at 480.

Plaintiffs rely on the deposition testimony

from Detective Rinear and Inspector Thornton which

they claim exhibits bias toward finding inculpatory

acquiescence of federal rights violations. Thomas, 398 F.3d at

429, citing Mone//, 436 U.S. at 694.

information an¢ downplaying exculpatory evidence.

Plaintiffs find Uetective Rinear’s statement, “Just

because ... you don’t find something doesn’t mean

that it didn’t happen.” ( Det. Rinear Dep. at 140) to

be abhorrent as well as Inspector Thornton’s view

that incriminating items “could be there one day and

not there another day.” (Thurton Dep. at 73). These

statements are intended as evidence of custom or

policy to obtain search warrants without probable

cause.

Plaintiffs fail to produce evidence of a clear

and persistent pattern other than their bare state-

ment of “reputation.” They have not put forth evi-

dence of previous complaints. Plaintiffs have shown

no custom or policy of seeking criminal charges with-

out probable cause. They have shown no custom or

policy of humiliating Mr. Corsi.

Plaintiffs appear to be arguing that there was

notice on the part of the county due to statements

from defendant Larry Momchilov, whom plaintiffs

claim was Detective Rinear’s supervisor, that there

was no probable cause to search Mr Corsi’s residence

in Carroll County.5 In plaintiffs’ version of events

; The transcribed text, to which defendants express no

objection reads:

Larry: Yes he could. See our problem is that we went

there with a search warrant and we confiscated everything out

of there. We don’t know if he, let’s say is not involved in any of

the kiddy porn.

Geri Yea.

Larry: You know then that is fine. But if he is involved

in kiddy porn, if you want. to call it that, then he has taken it

out of there and taken it some place else. We did not have

enough evidence to go to his residence in Carroll County to do a

search of his residence. If we had just a trace, we would did a

Detective Rinear apparently overrode the authority

of her supervisors followed by their acquiescence

since no effort was made by the county to quash the

search warrant process once instigated by Detective

Rinear. While this construction of events arguably

shows notice and tacit approval (steps 2 and 3 from

Doe and Thomas), it fails to show a clear and persis-

tent pattern or that there was a custom or policy

that had a direct causal link to the second search.

Accordingly, plaintiffs, under their “reputation”

theory have established no “custom” or policy on

which to hold the the County of Summit, liable for

the actions of its employees.

Federal Claims - Individual Capacity:

Government officials may be “held liable in

their personal capacity for actions they take in their

official capacity.” Hafer v. Melo. 502 U.S. 21, 27, 112

S. Ct. 358, 116 L.Ed. 2d 301 (1991); Mitchell v.

Chapman, 348 F.3d 811, 832 (6m Cir. 2003). Defen-

dants as sued in their personal or individual capa-

city contend that are shielded from plaintiffs’ claim

of Fourth Amendment violations of their civil) rights

due to qualified immunity. Qualified immunity pro-

tects government officials from individual liability

due to performance of discretionary functions unless

plaintiff asserts the official violated a “clearly estab-

lished statutory or constitutional rights of which a

reasonable person would have known.” Har/ow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,

73 L.Ed.2d 396 (1982); Knott, 418 F.3d at 571.

In this circuit, a three step approach has

emerged for evaluating the affirmative defense of

search warrant to go down there and search his residence, we

didn't have it so we couldn't go there. (Plaintiffs’ Ex. 3A, pg. 4).

qualified immunity. See Haynes v. City of Circleville,

Ohio, 474 F.3d 357, 362 (6m Cir. 2007); Perez v.

Oakland Cty., 466 F.3d 416, 436 (J. Moore con-

curring/dissenting 6tn Cir. 2006); Sample v. Bailey,

409 F.3d 689, 696 n. 3 (6 Cir. 2005); Feathers v.

Aey, 319 F.3d 843, 848 (6 Cir. 2003). First, the court

considers whether the evidence in light most favor-

able to the plaintiff shows a constitutional night has

been violated. lf no constitutional] or statutory rights

have been violated then that official must be dis-

missed at this threshold step obviously became no

civil rights violation has occurred. St. John v.

Hickey, 411 F.3d 762, 768 (6m Cir. 2005); Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d

272 (2001). Second, the court considers, if a violation

has been demonstrated, whether the right was clear-

ly established. Haynes, 474 F.3d at 362. The rele-

vant, dispositive inquiry in determining whether a

right is clearly established is whether it would be

clear to a reasonable officer that his conduct was

unlawful in the situation he confronted. Sample v.

Bailey, 409 F.3d 689, 698 (6m Cir. 2005), quoting

Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151,

150 L.Ed.2d 272 (2001); Knott, 418 F.3d at 571. The

third step is “whether the plaintiff offered sufficient

evidence to indicate that what the official did was

objectively unreasonable in light of clearly estab-

lished constitutional rights.” Haynes, 474 F.3d at

362; Swiecicki v. Delgado, 463 F.3d 489, 498 (6t» Cir.

2006). “[I]f the right is clearly established, the con-

duct at issue would also be objectively unreason-

able,” the second and third steps would be col-lapsed,

“in an effort to avoid duplicative analysis.” Haynes,

474 F.3d at 362; Swiecicki, 463 F.3d at 498. The bur-

den is on the plaintiff to demonstrate that the official

._» ee ea ee, Se

is not entitled to qualified immunity. Haynes, 474

F.3d at 362; Painter v. Robertson, 185 F.3d 557, 567

(6 Cir. 1999).

Sheriff Drew Alexander:

_ Sheriff.Drew Alexander contends he was not

involved in the criminal prosecution, did not enter

the daycare center or Mr. Corsi’s home, and com:

mitted no act against plaintiffs. Plaintiffs allege that

the Sheriff is liable because he has the right of

control.‘ Just as the county could not be held liable

for the actions of its employees under respondeat

superior, a government supervisory employee, like a

county sheriff, cannot be held liable when sued in an

individual or personal capacity for the actions of

employees over whom there was supervisory auth:

ority. See Shehee v. Luttrell, 199 F.3d 295, 300 (6a

Cir. 1999); Leary v. Daeschner, 349 F.3d 888, 903

(6c Cir. 2003); Dunn v. Tennessee, 697 F.2d.121, 128

(6 Cir.1982), cert. denied, 460 U.S. 1060 (1983).

Liability for supervision exists under §1983 only

when “the supervisor encouraged the specific inci-

dent of misconduct or in some other way directly

participated in it,” or “at least implicitly authorized,

approved or knowingly acquiesced in the unconsti-

tutional Conduct of the offending subordinate.”

Leary, at 903, quoting Bellamy v. Bradley, 729 F.2d

° Plaintiffs’ Exhibit No. 5 is listed as a May 29, 2002 press

release by Summit County Sheriff Drew Alexander. Although

this press release purports to be an announcement for the

sheriff, it concludes by requesting all media inquiries to

Inspector Keith W. Thornton. Plaintiffs do not attempt to

attribute this press release to the sheriff himself, so there is no

argument that the sheriff is personally responsible for the

plaintiffs allegations of humiliation and defamation.

416, 421 (6 Cir.), cert. denied, 469 U.S. 845 (1984);

and see Jones v. Reynolds, 438 F.3d 685, 689- 90 (6x

Cir. 2006); Miller v. Calhoun County, 408 F.3d 803,

817 n. 3 (6m Cir. 2005)(“Because §1983 liability can-

not be imposed under theory of respondeat superior,

proof of personal involvement is required for the

supervisor to incur personal liability.”). Plaintiffs

have not shown that Sheriff Alexander violated

plaintiffs constitutional rights, and summary judg-

ment will be entered in the sheriff's favor.

Summit County Executive and Council Members:

The complaint did not specify the capacity the

county executive and council members were sued,

but defendants assert the defense of qualified im-

munity with respect to all claims. Accordingly, since

this defense only applies in matters where suit has

been brought under individual capacity, it must be

presumed that defendants interpret the complaint as

raising individual capacity claims against these

county officials. See Moore v. City of Harriman, 272

F.3d 769, 772 (6u Cir 2001); Abdur-Rahman v. Mich-

igan Dept. of Corrections, 65 F.3d 489, 491 (6u Cir.

1995). Plaintiffs assertion of liability is premised on

respondeat superior. Again, plaintiffs must show

personal involvement by at least encouraging, im-

plicitly authorizing or approving the activities or

knowingly acquiescing in unconstitutional conduct of

subordinates. See Bellamy v. Bridley, 729 F.2d at

421; Miller v. Calhoun County, 408 F.3d at 817 n. 3;

Knott v. Sullivan, 418 F.3d at 574 (County Com-

missioner had no involvement in invalid search

warrants executed by sheriffs deputies). Con:

sequently, summary judgment dismissing the

Summit County executive and council members is

appropriate in their persona] capacities since

plaintiffs have come forward with no evidence of

personal involvement.

Detective Kelly Fatheree:

Detective Fatheree did not sign affidavit or

charges and did not participate in Mr. Corsi’s arrest.

Detective Rinear had asked Detective Fatheree to

take a walk through the KD Day Care to provide

information on its ’ayout prior to executing a search

warrant. On May 22, 2002 Detective Fatheree took a

young girl with her posing as a prospective customer

and requested a tour of the facility. Plaintiff Ms.

Brothers showed Detective Fatheree around the

facility. Following her tour she provided a layout of

the facility to Detective Rinear and Sergeant Larry

Limbert. Detective Linear and Sergeant Limbert

later took part in the search of the facility on May

23, 2002.

It is well-established under both the Fourth

Amendment and the state constitution that an

undercover law enforcement officer may use ruse to

gain consent to conduct a warrantless search of

home or office. See Marvland v. Macon, 472 U.S. 463,

469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d. 370 (1985);

Lewis v. U.S., 385 U.S. 206, 210-11, 87 S.Ct. 424,

427, 17 L.Ed.2d 312 (1965); U.S. v. Pollard, 215 F.3d

643, 648 (6 Cir. 2000), cert. denied, 531 U.S. 999

(2000); U.S. v. Baldwin, 621 F.2d 251, 252-53 (6 Cir.

1980); State v. Posey, 40 Ohio St.3d 420, 534 N.E.2d

61 (1988). “What a person normally exposes to the

public . . . is not a subject of Fourth Amendment

Protection.” Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct.

507, 511, 19 L.Ed.2d 576 (1976). Consequently, “[a]

government agent, in the same manner as a private

person, may accept an invitation to do business and

may enter upon the premises for the very purposes

contemplated by the occupant.” Lewis, 385 U.S. at

211, 87 S.Ct. at 427; Maryland, 472 U.S. at 470, 105

S.Ct. at 2782. Accordingly, there was no violation of

any right under the Fourth Amendment by Detective

Fatheree’s conduct.

Captain Larry Momchilov:

Defendants state that Captain Larry Mom-

chilov supervised the search of Mr. Corsi’s home in

Malvern, Carroll County, Ohio on a warrant issued

by Judge Johnson in the Carroll County Court. Cap-

tain Momchilov did not participate in obtaining the

warrant or in Mr. Corsi’s arrest. Plaintiffs do not

contest these facts and have not overcome the legal

principle that “an officer may ‘rely on a judicially

secured warrant for immunity from an action for

illegal search and seizure unless the warrant is so

lacking in indicia of probable cause, that official

belief in the existence of probable cause is un-

reasonable.” Sinick v. County of Summit, 76 Fed.

Appx. 675, 680 (6m Cir. Sep. 24, 2003), quoting

Yancey v. Carroll Ct., 876 F.2d 1238, 1243 (6m Cir.

_ 1989), citing Malley v. Briggs, 475 U.S. 335, 344, 106

S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Plaintiffs point out that Captain Momchilov

had stated that there was a lack of probable cause to

search Mr. Corsi’s home (See footnote 5, Plaintiffs’

Ex. 3A, pg. 4). Defendants argue that these state-

ments were made in context of explanation of why

the home and daycare could not be searched simul-

taneously and prior to opportunity for complete re-

view of the seizure inventory from the daycare.

(Defs.’ Reply pg. 2, Docket No. 64). Defendants’ un-

sworn explanation cannot be accepted, but it is

unnecessary.

Plaintiffs make the groundless leap from these

statements to the conclusion that somehow Detective

Rinear was missupervised and misguided by Captain

Momchilov in submitting an application for search

which omitted material facts and was made in reck-

less disregard for truth, and Captain Momchilov

knew this and permitted Detective Rinear to pro-

ceed. Defendants concede that Captain Momchilov at

least was aware of Detective Rinear’s undertaking to

secure a search warrant for the search of Mr. Corsi’s

home. Plaintiffs do not allege, however, that the cap-

tain had additiona] knowledge not possessed by De-

tective Rinear of any discrediting facts or infor-

mation. Whether or not he had reservations, under

these circumstances, presents a claim derivative to

that against Detective Rinear. Plaintiffs have at best

shown only that Captain Momchilov had subjective

reservations without showing that the affidavit for

the search warrant was objectively so lacking in

indicia of probable cause, that official belief in the

existence of probable cause was unreasonable.

Plaintiffs next focus on Captain Momchilov’s state-

ments or approval of statements made in the May

29, 2004 press release about Mr. Corsi and Ms.

Brothers and statements to “random callers” made to

the Sheriffs Department. In the complaint plaintiffs’

claim the defendants knowingly and voluntarily con-

tinued to report falsehoods to the media and others

regarding Mr. Corsi and his business and that these

defamatory and slanderous statements resulted in

exploitation of plaintiffs’ personality causing out-

rage, mental suffering, shame and humiliation to

plaintiffs. (Complaint ¢432-33). From a Consti-

tutional standpoint, there is no basis for asserting a

claim of defamation or humiliation as a claim for

constitutional violation under the Fourth Amend-

ment.

Detective Linda Kay Rinear:

Detective Linda Kay Rinear is the central

figure in this matter. She is responsible for the

search warrants on KD Day Care, Mr. Corsi’s resi-

dence and she signed the affidavits against Mr. Corsi

to e.able nis arrest and the subsequent criminal

prosecution. Defendants maintain that Detective

Rinear is excused from Fourth Amendment violation

because she discussed each search warrant with

prosecutors, she provided the state courts with

detailed information including facts that might lead

the state court to deny the search request. Further,

with regard to the criminal complaints against Mr.

Corsi, Detective Rinear claims that this was auth-

orized by the Cuyahoga Falls Prosecutor, Duane

Jones (Aff. 9919, 58-59, Ex. A-1).

To begin with, the prosecutor’s involvement

does not break the chain of causation. See Jones v.

City of Chicago, 856 F.2d 985, 993-94 (7 Cir. 1998).

“[A] prosecutor’s decision to charge, a grand jury’s

decision to indict, a prosecutor’s decision not to drop

charges but to proceed to trial — none of these decis-

ions will shield a police officer who deliberately sup-

plied misleading information that influenced the

decision.” /d.; DeLoach v. Bevers, 922 F.2d 618, 621

(10m Cir. 1990). This flows from the underlying legal

principle that judicial scrutiny of a warrant does not

confer absolute immunity on the complaining police

officer but only qualified immunity pending on the

objective reasonableness of the application. See US.

v. Leon, 468 U.S. 897, 922 and n. 23, 104 S.Ct. 3405,

82 L.Ed.2d 677 (1984); Malley v Briggs, 475 U.S.

335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)

(extending Leon)’.“Defendants will not be immune if,

on an objective basis, it is obvious that no reasonably

competent officer would have concluded that a war-

rant should issue: but if officers of reasonable com-

petence could disagree on this issue, immunity

should be recognized.” MaJ/ey, 475 U.S. at 341.

Malley and Leon followed Franks v. Delaware where

the implicit legal rule that a warrant cannot be

based on deliberate falsehood or reckless disregard

of the truth was unfortunately required to be made

redundantly explicit. Ja, 438 U.S. 154, 171, 88 S.Ct.

2674, 2684, 57 L.Ed.2d 667 (1978).

First Search Warrant:

With respect to the initial search, plaintiffs

[sic] concede that Detective Rinear had spoken with

a parent who was “uncomfortable” with their child

” As explained in Ma/J/ey judicial review of an arrest warrant

also does not break the chain of causation.:“In Leon, we stated

that “our good-faith inquiry is confined to the objectively

ascertainable question whether a reasonably well-trained

officer would have known that the search was illegal despite

the magistrate's authorization.” 468 U.S., at 922, n. 23, 104

S.Ct., at 3420, n. 23. The analogous question in this case is

whether a reasonably well-trained officer in petitioner's

position would have known that his affidavit failed to establish

probable cause and that he should not have applied for the

warrant. If such was the case, the officer's application for a

warrant was not objectively reasonable, because it created the

unnecessary danger of an unlawful arrest. It is true that-in an

ideal system an unreasonable request for a warrant would be

harmless, because no judge would approve it. But ours is not an

ideal system, and it is possible that a magistrate, working

under docket pressures, will fail to perform as a magistrate

should. We find it reasonable to require the officer applying for

the warrant to minimize this danger by exercising reasonable

professional judgment.” (footnotes omitted) Malley v. Briggs,

475 US. at 345-346, 106 S.Ct. at 1098.

being taken into a private room, that Mr. Corsi’s

individualized attention given to children was cor-

roborated by daycare employees, and that Detective

Rinear had interviewed two children who attended

the daycare (C.M. and M.Z.). Further, plaintiffs can-

not deny there was at least the appearance of a lack

of credibility following the efforts to verify Mr. Corsi

and Ms. Brothers’ prior employment. The investi-

gating officers cannot be faulted for being given in-

correct information by Canton City Schools’ person-

nel.

The Fourth Amendment’s prohibition against

unreasonable searches has long been recognized to

apply to commercial premises, especially when the

property is searched for contraband or evidence of a

crime. See New York v. Burger, 482 U.S. 691, 699,

724,107 S.Ct. 2636, 2642, 2655, 96 L.Ed.2d 601

(1987); Donovan v. Dewey, 452 U.S. 594, 598 n.6,

101 S.Ct. 2534, 2538 n.6, 69 L.Ed.2d 262 (1981). The

Fourth Amendment requires that, “[t]he linvesti-

gating and supervising] officer must establish prob-

able cause to believe the crime has been committed

and that evidence is likely to be found at the place to

be searched; must articulate specific items that can

be seized, and a specific place to be searched; [and]

must obtain the warrant from a magistrate judge. . .

Groh v. Ramirez 540 U.S. 551, 568, 124 S.Ct. 1284,

1296, 157 S.Ct. 1068 (2004). As defined in J//inois v.

Gates:

[P]robable cause requires only a proba-

bility or substantial chance of criminal

activity, not an actual showing of such

activity. By hypothesis, therefore innocent

behavior frequently will provide the basis

for a showing of probable cause: to require

”

otherwise would be to sub si/entio impose

a drastically more rigorous definition of

probable cause than the security of our

citizens demands . . . In making a deter-

mination of probable cause the relevant

inquiry is not whether particular conduct

is “innocent” or “guilty,” but the degree of

suspicion that attaches to particular types

of non-criminal acts. (citation omitted).

Id., 462 U.S. 213, 245 n.13, 103 S.Ct. 2317, 76

L.Ed.2d 527 (1983).

There clearly was articulable probable cause

for the search of the daycare premises for evidence of

child pornography, and all requirements under the

Fourth Amendment were met.

Plaintiffs, however, dwell upon the argument

that C.M.’s statements to the detective concerned

events that occurred 14 months earlier. “[A] warrant

is stale if the probable cause, while sufficient at

some period in the past is now insufficient as to

evidence at a specific location.” U.S. v. Aboud, 438

F.3d 554, 572 (6m Cir. 2006); U.S. v. Jackson, 470

F.3d 299, 308 (6 Cir. 2006). The [court] should

consider the defendant's course of conduct, the

nature and duration of the offense, the nature of the

relevant evidence, and any corroboration of the infor-

mation.” U.S. v. Gardner, 463 F.3d 445, 471 (6: Cir.

2006): Jackson, 470 F.3d at 308. There is, however,

no “bright line test” for determining when probable

cause has become stale. U.S. v. Koelling, 992 F.2d

817, 822 (8 Cir. 1993). Staleness is based on the

variables of the character of the crime, whether the

criminal is nomadic, perishability or transferability

of the items to be seized and whether the criminal

activity occurs at a transient or fixed location. See

U.S. v. Spikes, 158 F.3d 913, 923 (6 Cir. 1998).

With regard to allegations of child porno-

graphy, the courts have found probable cause was

not stale because it is presumed that such material

is securely retained by the suspect. See U.S. v. Som-

mage, ~ F.3d. -, 2007 WL 1052456 *3 (8m Cir. 2007);

U.S. v. Koelling, 992 F.2d at 823 (pedofile [sic]

presumed to maintain pornography collection); U.S.

v. Hay, 231 F.3d 630, 636 (9» Cir. 2000) (information

that was six months old was not stale); U.S. v. Lacy,

119 F.3d 742, 746 (9m Cir. 1997) (information that

was 10 months old was not stale). Since there is no

“bright line” standard for measuring staleness and

case law has permitted use of evidence as old as 10

months old in child pornography prosecutions, then

plaintiffs have not demonstrated a constitutional

violation.

Detective Rinear’s affidavit did not end there.

There was evidence of continuing investigation and

suspicious activity based on interviews with former

and current daycare employees, and another child

M.Z. (See Det. Rinear Affidavit for Search Warrant

194-5, 8, Ex. A-1). Plaintiffs have not shown that a

Fourth Amendment constitutional right has been

violated under the standard set out in US. v. Spikes.

The contraband was presumably in a fixed location

where Mr. Corsi would have access at his daycare

abode (investigation showed he slept and showered

there) and pornography was not perishable, and

likely to be retained.

Probable Cause for Arrest:

As made “abundantly clear” in the Fourth

Amendment, arrest warrants may only issue upon

“probable cause”. AA/ers v. Schebil, 188 F.3d 365, 37

(6m Cir. 1999); Vakilian v. Shaw, 335 F.3d 509, 517

(6 Cir. 2003); and see Dunaway v. New York, 442

U.S. 200, 216,99 S.Ct. 2248, 2258, 60 L.Ed.2d 824

(1979). Probable cause to arrest exists when at the

moment the arrest was made, “the facts and circum:

stances within [the arresting officer's] knowledge

and of which they had reasonably trustworthy infor-

mation were sufficient to warrant a prudent man in

believing that the [suspect] had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89,

91, 85 S.Ct. 223, 225,13 L.Ed.2d 142 (1964); Hunter

v. Bryant, 502 U.S. 224, 228,112 S.Ct 534, 537, 116

L.Ed.2d 589 (1991).

Commensurate with this, is the requirement

from Franks v. Delaware, that the warrant for arrest

not be obtained by deliberate falsehood or reckless

disregard of the truth. See Franks, 438 U.S. 154;

Vakilan, 335 F.3d at 517; Ab/ers v. Schebi/, 188

F.3d at 373. The general rule is “lolnce probable

cause is established, an officer is under no duty to

investigate further or look for additional evidence

which may exculpate the accused.” Ad/ers, 188 F.3d

at 371. Under this rule an officer, “is under no obli-

gation to give any credence to a suspect’s story [or

alibi] nor should a plausible explanation in any

sense require the officer to forego arrest pending

further investigation if the facts as initially discov-

ered provide probable cause.” /d., quoting Criss v.

City of Kent, 867 F.2d 259, 263 (6 Cir. 1988). How-

ever, balanced against this, “an officer cannot look

only at the evidence of guilt while ignoring all ex-

culpatory evidence.” Gardenhire v. Schubert, 205

F.3d 303, 318 (6m Cir. 2000); Humphrey v. Mabry, -

F.3d -, 2007 WL 957354 *14 (6m Cir. 2007). Thus an

officer cannot rely on evidence which is contradicted

by direct observation. Humphrey, at *14; Fisher v.

Harden, 398 F.3d 837, 843 (6 Cir.), cert. denied, -

U.S. -, 126 S.Ct. 838, 163 L.Ed.2d 706 (2005).

Detective Rinear filed affidavits in Cuyahoga

Falls Municipal Court and obtained a judicially is-

sued warrant for his arrest. Ms. Brothers and Mr.

Corsi argue that the officer knew that the holes in

the ceilings were to allow hoses to run through the

ceiling tiles to divert the water from roof leakage,

that the handgun and knife were located in a locked.

private back room that was not accessible to the chil:

dren (Brothers Aff. pg. 4, Corsi Aff. pg. 2, Docket No.

60). Mr. Corsi stated that he knew of no pictures of

naked females on his computer and that he was a-

ware only that there was only a Sports Illustrated

swimsuit model stored on the computer (Corsi Aff.

pg. 1). Mr. Corsi’s affidavit also adds that the video

camera that fit the ceiling holes was a recent pur-

chase and was not there at the time of the “ima-

ginary events described by” C.M. (Corsi Aff. pg. 2).

None of the circumstances descril 2d by plaintiffs is

exculpatory, even when considered with the absence

of a vibrating bed, pool, and pull-down ladder from

the ceiling. Plaintiffs quibble over Detective Rinear’s

affidavit for arrest which stated that the handgun

was in an unlocked drawer which was accessible to

the children (See Affidavit for Arrest, Ex. A-4, Doc”

ket No. 38). They do not deny that there was no lock

on the drawer, and Detective Rinear was not re-

quired to accept their explanation that the room was

kept locked at all times to negate a reasonable belief

in the child endangering charge. After all, one of the

daycare employees had expressed her concern that

Mr. Corsi was teaching the children “about shooting

guns.” (Det. Rinear Aff. for Search Warrant 45, Ex.

A-1)

The more serious charges arose from C.M.’s

statement indicating voyeurism - i.e., disseminating

matter harmful to juveniles, voyeurism, and child

endangering in production of sexually-oriented ma-

terial. C.M.’s statement was not discredited given

the discovery of the video camera and the ceiling

holes, despite plaintiffs’ plausible explanations. The

facts do not demonstrate that Detective Rinear had

turned a blind eye toward exculpatory evidence. The

investigation indicated that child pornography was

being produced at this location and the presence of

young children, physica] setting and extant means of

production uncovered at the daycare would lend

themselves to this endeavor. Other informants had

reported that Mr. Corsi had taken children individ-

ually into a private room and closed and locked the

door (Det. Rinear Aff. for Search Warrant 415, Defs.’

Ex. A-1). M.Z. had reported that there was a secret

club for boys atid that Mr. Corsi teok pictures of him

and other children (Aff. for Search Warrant 418).

Further a parent had complained of her suspicions-

the “spe cial treatment” Mr. Corsi gave her son and

Mr. Corsi’s defiance of her instruction that her two

years old son was not permitted to be alone with Mr.

Corsi. Reportedly, Mr. Corsi had ta-ken her son into

a private room for four hours. This parent also com-

plained that while changing her son's diapers and

wiping his private area, her son complained that the

area hurt (Aff. for Search Warrant 943, 11). Plain-

tiffs have not shown an intent to mislead in the ob-

taining lof] the arrest warrant. No Fourth Amend-

ment violation has been demonstrated. “The Consti-

tution does not guarantee that only the guilty will be

arrested.” Baker v. McCollan, 443 U.S. 137, 145, 99

S.Ct. 2689, 61 L.Ed.2d 433 (1979).

Moreover, with respect to the bona fideness of

the officer's actions, the standard of objective reason-

ableness “defines the qualified immunity accorded

an officer whose request for a warrant allegedly

cause an unconstitutional arrest.” Mad/ey v. Briggs,

475 U.S. 344-45, 106 S.Ct. at 1098. “Only where the

warrant application is so lacking in indicia of prob-

able cause as to render official belief in its existence

unreasonable .. ., will the shield of immunity be

lost.” Jd. Under these circumstances it would not be

clear to a reasonable officer that her conduct was un-

lawful. Accordingly, presuming alternatively that

there was an unconstitutional arrest in violation of

Mr. Corsi’s Fourth Amendment rights, the belief was

objectively reasonable that probable cause for the

arrest existed.

Second Search Warrant:

Following the search of the daycare center and

Mr. Corsi’s arrest, a search warrant was obtained for

his home. Plaintiffs argue that even if the initial

search warrant of the daycare center were based on

probable cause, the inconsistencies that became ap-

parent in C.M.’s story after the first search of the

daycare should have precluded the subsequent

search of Mr. Corsi’s home. Plaintiffs contend that

Detective Rinear omitted material facts in reckless

disregard of the truth in the search warrant affidavit

and she therefore could not be shielded by qualified

immunity. Plaintiffs contend that the search of Mr.

Corsi's residence proceeded on virtually the same

affidavit that Detective Rinear had provided for the

earlier search with only a change in the address of

the premises to be searched and the addition of the

statements that: “based on 11 years experience,

people who commit the type of crimes outlined in

this affidavit secrete items as memorabilia in their —

homes; Mr. Corsi had been arrested; and that evi-

dence to support the charges was believed to exist at

Mr. Corsi’s residence (Affidavit 4915-17, Ex. A-6).

Plaintiffs maintain that the resubmission of the

same “facts” in the second affidavit constituted reck-

less disregard of the truth by Detective Rinear’s fail-

ure to provide exculpatory information concerning

the inconsistencies between C.M.’s story and dis-

coveries made during the first search. Plaintiffs do

not explain what this exculpatory information was,

but presumably it was a lack of uncovering a vib-

rating bed in a private room, pool in the room, and

secret door in the ceiling with a pull-down ladder

(See Det. Rinear Affidavit 47, Ex. 4-6). Plaintiffs al-

so focus on Detective Rinear’s deposition testimony

about her prior consultation with a part-time judge

from Carroll County, who advised her to wait until

after the daycare center had been searched to obtain

more evidence, and “depending on what we found in

the daycare center, the judges down there would

most likely probably not give us a search warrant for

his residence at the same time.” (Det. Rinear Depo.,

pg. 121). 3

The first question is whether plaintiffs have

demonstrated a violation of the Fourth Amendment.

Case law generally has overstepped the first step of

qualified immunity analysis and proceeded directly

to the second step of qualified immunity whether the

warrant application was not lackimg in indicia of

probable cause as to render official behef in sts exis-

tence unreasonable pursuant to Malley v. Briggs.

See Jd., 475 U.S. at 343-45. Turning to the question

of whether there was a constitutional] violation under

the Fourth Amendment, the touchstone for the exis:

tence of probable cause is whether under the to-

tality-of-the- circumstances, “there is a fair prob-

ability that contraband or evidence of a crime will be

found in a particular place.” J//inois v. Gates, 462

U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

“When the affidavit is based on information from an

informant, the informant’s reliability, veracity, and

basis for knowledge are relevant to whether the

affidavit provided probable cause to support the

- search.” U.S. v. Solomon, 432 F.3d 824, 827 (8m Cir.

2005); and see U.S. v. Smith, 783 F.3d 648, 650-51

(6 Cir. 1986). As stressed in Gates under “relevant

consideration in the totality-of-the circumstances

analysis .. . a deficiency in one may be compensated

for, in determining the overall reliability of a tip, by

a strong showing as to the other, or by some other

indicia of reliability.” Gates, 462 U.S. at 233.

One court has stated that, “[t]he Constitution

makes no distinction between arrest and search war-

rants. It simply provides, ‘no warrants shall issue

but upon probable cause supported by oath or af-

firmation and particularly describing the person or

things to be seized.” US. v. Stephenson 490 F.Supp.

625, 627 (E.D..Mich. 1979). In practice, though, in

Ohio an affidavit for arrest is cursory and relatively

devoid of details consisting of the officer’s summary

of the accusations, whereas affidavits for search

warrants are expected io be detailed to allow for

judicial scrutiny. When an affidavit lacks any indicia

of the informant’s reliability, as this one did, there

must be “substantial independent police corrobo-

ration.” U.S. v. Frazier, 423 F.3d 526, 532 (6m Cir.

2005).

C.M.’s statement was the core of this investi-

gation and he had stated, “that he has taken tapes to

Mr. Dave's car and put them on the back seat and

Mr. Dave said he was taking the tapes home.” (Det.

Rinear Aff. for Search Warrant 97, Ex. A-6, Docket

No. 38). There was corroborative evidence of the

veracity of C.M.’s statement included from the disco-

very of a bullwhip, wireless video camera, monitor,

recording device, and photographs of women in

bathing suits.(Det. Rinear Aff. 914, Ex. A-6). Detec-

ive Rinear explained-in her affidavit that sexually

explicit materials consisting of photographs in

magazines are used for lowering inhibitions of chil-

ren (Det. Rinear Aff. for Search Warrant 413C, Ex.

A-6), The presence of young children, and extant

means of video and audio production uncovered at

the daycare provided “substantial independent police

corroboration” of child pornography to establish

C.M.’s reliability. See U.S. v. Frazier, 423 F.3d at

532.

C.M.’s statement was central] to the second

search, and plaintiffs argue that there constitutional

rights were abridged by the officer’s failure to specify

inconsistencies from direct observation such as the

lack of the vibrating bed, poo] and pull-down ladder.

What plaintiffs may be attempting to claim is that in

effect. the affidavit gave C.M.’s statement a more

favorable “spin” by omitting specific mention of any

inconsistencies that would have negative implica-

tions on this child’s credibility, and arguably, cont-

rary to the Fourth Amendment, that judge was

denied the opportunity to assess whether probable

cause existed based on the “totality-of-the circum-

stances.” However, as set out in Mays v. City of

Dayton, in order to establish the failure to include

potentially exculpatory information in violation of

Franks v. Delaware, and defeat qualified immunity

the plaintiff first must make “a substantial prelim-

inary showing that a false statement knowingly and

intentionally or with disregard for the truth was

included by the affiant in the warrant affidavit.” /d..,

134 F.3d 809, 815 (6 Cir. 1998). Applying the Har-

Jow standard, “an allegation of malice is not suf-

ficient to defeat immunity if the defendant acted in

an objectively reasonable manner.” Ma//ey, 475 U:S.

at 341; Myers v. Morris, 810 F.2d 1437, 1457 (8 Cir.

1987), abrogated on other grounds, Burns v. Reed,

500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 |

(1991); Snel/ v. Tunnell, 920 F.2d 673, 698 (10 Cir.

1990). Subjective bad faith by an officer alone will

not defeat qualified immunity if the officer’s conduct

was objectively reasonable. Sne//, 920 F.2d at 698;

Myers, 810 F.2d at 1457: and see Ma//ey, 475 U.S. at

345- 346, 106 S.Ct. at 1098 (quoted in footnote 7).

The approach to such situations must be tempered

with reason, “[b]ut at some point, an officer's know-

ledge of false information may defeat a finding of ob-

jective reasonableness.” Sne// at 698. “Perjury is not

objectively reasonable conduct.” Myers, 810 F.3d. at

1457. This naturally applies to omissions of informa:

tion from affidavits as well. Mays, 134 ¥.3d at 815.

As in Myers v. Morris, plaintiffs contend that

a child’s story was incredible. As a matter of law,

deception by a child informant does not directly

transfer to the attesting officer. See Myers, 810 F.2d

at 1457. As stated in Franks v. Delaware, “\|t|he deli-

berate falsity or reckless disregard whose impeach-

ment is permitted today is only that of the affiant,

not of any nongovernmental informant.” /d., 438

U.S. at 171; Myers, 810 F.2d at 1458. Rather the

plaintiffs must show that the arresting officer knew

his informant was lying. Myers, 810 F2d at 1458.

Plaintiffs refer to Detective Rinear’s deposition

where she stated that she believed C.M.. This is not

favorable to plaintiffs’ burden : Further, the remarks

cited earlier from Detective Rinear and Inspector

Thornton show that at least subjectively the officers

believed that the vibrating bed and pool could have

been removed in the period following C.M.’s state-

ment. The prior search also had uncovered sexually

oriented materia] of nude adult females which con-

firmed reports from day-care center staff, holes in

the ceilings over bathrooms and showers which ap-

peared to be positioned to view the toilet and shower

areas of the room, and a video camera was found

which fit the holes found in the ceiling tiles and

transmitted a picture to a television monitor in Mr.

Corsi’s office. (See Supplemental Arrest Report, Ex.

A-6). These facts do not present a substantial pre-

liminary showing of false statement by the affiant.

Plaintiffs’ burden is to make a strong preliminary

showing that Detective Rinear’s omissions were

made “with an intention to mislead.” Ha/e v. Kart,

396 F.3d 721, 726 (6u Cir. 2005); Mays, 134 F.3d at

816. Consequently plaintiffs have failed to meet the

required showing that the affiant had an intention to

mislead by excluding critical evidence from the af-

fidavit. See Mays, 134 F.3d at 816.8 It was certainly

: Secondly, plaintiffs are required to establish that the

allegedly false statement “was necessary for finding of probable

cause.” Mays, 134 F.3d at 815: Franks, 438 U.S. at 155-56, 98

S.Ct. at 2676-77; and see Gregory v. City of Louisville, 444 F.3d

725, 758 (6u Cir. 2006), cert. denied, - U.S. -, 127 S.Ct. 962, 166

L.Ed.2d 707 (2007). Under this structure, “[t}he inquiry does

not continue if the court finds that the exclusion of the

reasonable for the officers to believe that this

incriminating evidence had been secreted at Mr.

Corsi’s home.

Plaintiffs debate the timing of Detective

Rinear’s claims about the discovery of nude adult

female images downloaded on the daycare’s com:

puter because plaintiffs claim that these were

discovered later after the computer had been re-

moved and its contents subsequently examined.

However, there was not mention of these in the

affidavit for the second search warrant. Detective

Rinear referred only to the females in swimsuits

photographs. (Det. Rinear Aff. 414, Defs.’ Ex. A-6).

Accordingly, defendants prevail on their motion for

summary judgment.with respect to alleged violation

of Fourth Amendment protections.

State Claims:

Plaintiffs raise claims under the state consti-

tution, and five (but in reality four) state torts of in-

tentional infliction of emotional distress, false arrest,

false imprisonment, defamation, and “un-warranted

appropriation or exploitation of the Plaintiffs’ per-

sonalities.” Defendants maintain that Ohio’s Polli-

tical Subdivision Tort Liability Act bars recovery

allegedly false statement does not result in the lack of probable

cause.” Mays, 134 F.3d at 815. The court understands that as a

general rule that “lalbsent this first preliminary showing, the

district court may not engage in the second inquiry related to

probable cause” Hale v. Kart, 396 F.3d 721, 726 (6u Cir. 2005).

Only when the prelaminary showing of the affiant engaging in

“deliberate falsehood” or “reckless disregard of the truth” in

omitting information, must the court “consider the affidavit

including the omitted portions and determine whether probable

cause still exists.” Ha/e, 396 F.3d at 226; U.S. v. Atkin, 107

F.3d 1213, 1217 (6m Cir. 1997)

from the County of Summit and its agents against

plaintiffs’ supplemental claims based on state law.

“A federal court exercising supplemental jurisdiction

over state law claims [under 28 U.S.C. §1367] is

bound to apply the law of the forum state to the

same extent as if it were exercising its diversity

jurisdiction.” Super Sulky, Inc., v. U.S. Trotting

Ass‘n., 174 F.3d 733, 744 (6th Cir. 1999); Chandler v.

Speciality Tires of America (Tennessee), Inc., 283

F.3d 818, 823 (6 Cir. 2002). The federal court is to

“apply state law in accordance with the controlling

decisions of the state supreme court.” Moore v. De-

troit School Reform Bd., 293 F.3d 352, 359 (6m Cir.

2002), cert. denied, 537 U.S. 1226 (2003): Thrifty

Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6 Cir.

2001). When the state’s highest court has not de-

cided the issue, the federal court must ascertain the

state law from “all relevant data.” Garden City

Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130

(6 Cir. 1995) quoting Bailey v. V & O Press Co., 770

F.2d 601, 604 (6m Cir. 1985); and see Rousey v. U.S.,

115 F.3d 394, 397 (6 Cir. 1997); Ellis ex rel. Pen-

dergrass v. Cleveland Mun. School Dist., 455 F.3d

690, 698 (6tn Cir. 2006). All relevant data includes

the state’s intermediate court decisions, restate-

ments of law, law review commentaries and decis-

ions from other jurisdictions on the “majority” rule.

Rousey, 115 F.3d at 397; American and Foreign Ins.

Co. v. Bolt, 106 F.3d 155, 158 (6 Cir. 1997). How-

ever, before addressing defendants’ defenses, a

special note is necessary with respect to the claims of

false arrest/imprisonment.

Defendants misread Counts 3 and 4 of the

Complaint as raising claims for false arrest and false

imprisonment under state law. Both claims are

clearly raised under the Fourth Amendment to the

U.S. Constitution. However, plaintiffs accede to this

argument and respond only with arguments based

on state law. (Plaintiffs’ Response pg. 19°20, Docket

No. 60). There can be only one recovery where a

state remedy both comports with due process and

serves to vindicate infringement of constitutional

rights. See Braley v. City of Pontiac, 906 F.3d 220,

223-26 (6» Cir. 1990), citing Parratt v. Taylor, 451

U.S. 527 (1981); Wilson v. Beebe, 770 F.2d 578 (6

Cir. 1985). The Sixth Circuit has found that state

tort actions for false arrest and false imprisonment

vindicated Fourth Amendment rights. Bra/ey, 906

F.3d at 224. Accordingly, there is no cause to hesi-

tate in treating these allegations of false arrest and

false imprisonment as matters governed by state

law. The Court shall accordingly accede to convert

these claims and consider them only as pendent

state matters.®

State Constitution:

The particular provision of Ohio’s Bill of

Rights at issue in this matter concerns Article I, §14

governing searches and seizures, which reads:

The right of the people to be secure in

their persons, houses, papers, and pos:

sessions, against unreasonabie searches

° Naturally the case could have proceeded under arguments

raised under the Fourth Amendment concerning probable

cause to arrest (See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13

L.Ed.2d 142 (1964); Gardenhire v. Schubert, 205 F.3d 303 (6u

Cir. 2000); Hadvansky v. City of Olmsted Falls, 395 F.3d 291,

301-10 (6m Cir. 2005)), and false imprisonment. ( See Frantz v.

Village of Bradford, 245 F.3d 869, 875 (6m Cir. 2001), overruled

on other grounds, Thacker v. City of Columbus, 328 F.3d 244

(6u Cir. 2003)).

and seizures shall not be violated; and no

warrant shall issue, but upon probable

cause, supported by oath or affirmation,

particularly describing the place to be

searched and the person and things to be

seized.

Plaintiffs’ reliance on this state constitutional

provision requires a determination of whether

Article I, Section 14 of Ohio's constitution is se)f-

executing in order to consider it an actionable claim.

“A constitutional provision is self-executing when it

is complete in itself and becomes operative without

the aid of supplemental or enabling legislation. A

provision is not'self executing if its terms duly cons-

trued indicate that it is not to become operative

without supplemental or enabling legislation.” State

ex rel. Russell v. Bliss, 156 Ohio St. 147, 151,46 0.0.

3, 5, 101 N.E.2d 289, 291 (1951), quoting former 16

Corpus Juris Secundum, Constitutional Law §48;

and see State v. Williams, 88 Ohio St.3d 513, 521-24,

728 N.E. 2d 342, 353-355 (2000). State jurisprudence

has long-recognized that the state’s bill of rights is

self-executing and requires no legislative or statu-

tory authority to support or implement it. See Zx

parte Berman, 86 Ohio App.411, 417, 87 N.E.2d 716,

720, 42 0.0. 13, 54 Ohio L.Abs. 327 (1949); 16 OdAzo

Jurisprudence 3d, Constitutional Law §90 (2005).

While Ohio's Supreme Court acknowledges that

the state may impose greater restrictions on police

activity under its state constitution, it has nonethe-

less determined that “Section 14, Article I of the

Ohio Constitution affords protections that are co-

extensive with those provided by the Fourth Amend-

ment|.]” State v. Robinette, 80 Ohio St.3d 234, 238,

245, 685 N.E.2d 762, 766- 67, 771, 1997-Ohio-343

(1997); and see State v. Pierce, 124 Ohio App.3d 592,

596, 709N.E.2d 203, 206 (10 App. Dist. 1998).

Accordingly, while plaintiffs’ state constitutional

claims are actionable, they have been resolved in

defendants’ favor under the preceding analysis of

plaintiffs’ allegations of Fourth Amendment

violations.

County of Summit-Governmental Immunity

Pursuant to Ohio’s Political Subdivision Tort

Liability Act there is a shield provided against politi-

cal subdivision liability under §2744.02(A). Defend-

ants maintain that they are so shielded. The Ohio

Legislature enacted Chapter 2744 in order to provide

immunity to political subdivisions inciuding counties

(See Ohio Rev. Code §2744.01(F)) for the acts per-

formed through their employees.'* Ohio Rev. Code

§2744.02(A)(1) provides in relevant part:

Except as provided in division (B) of this

section, a political subdivision is not liable

in damages in a civil action for injury,

death, or loss to persons or property al-

legedly caused by any act or omission of

the political subdivision or an employee of

the political subdivision in connection

with a governmental or proprietary

function.!!

'0 Ohio Rev. Code §2744.01(F), defines a political subdivision

as, “a municipal corporation, township, county or school dis-

trict, or other body corporate and politic responsible for govern-

mental activities in a geographic area smaller than that of the

state.”

'' The Court notes that identical language appears current

version of §2744.02(A)(1) effective 4/9/2003.

Plaintiffs counter that an exception exists to

governmental immunity for proprietary functions:

.. . [P]olitical subdivisions are liable for

injury, death, or loss to person or property

_ caused by the negligent performance of

acts by their employees with respect to the

negligent performance of acts by their em-

ployyees with respect to proprietary func:

tions of a political subdivision. Ohio Rev.

_ Code §2744.02(B)(2).

Plaintiffs maintain that the acts of issuing

press releases and providing “unverified informa-

tion” to callers was a proprietary function of the

Sheriffs Department. Plaintiffs contend that

communications by law enforcement officers to the

public via press release or in responding to questions

over the telephone is a proprietary function since it

involves “activities that are customarily engaged in

by nongovernmental persons.” See Ohio Rev. Code

§2744.01(G)(1)(b).12

12 12 Ohio Rev. Code §2744.01 G(1) defines a proprietary

function as exclusive of any governmental function and in

subsections (b)(2)(a) through e identifies the following non-

exclusive activities:

(a) The operation of a hospital by one or more political sub-

divisions;

(b) The design, construction, reconstruction, renovation, repair,

maintenance, and operation of a public cemetery other than a

township cemetery;

including but not limited to, a light, gas, power, or heat plant, a

railroad, a busline or other transit company, an airport, and a

municipal corporation water supply system:

(d) The maintenance, destruction, operation, and upkeep of a

sewer system,

(e) The operation and control of a public stadium, auditorium,

civic or social center, exhibition hall,

This contention presents an abrupt mistaken

shift in focus for plaintiffs because as explained

earlier, the Sheriffs Department is not a party nor is

it suz juris (See footnote 2). Presumably then, the ob-

jects of the plaintiffs’ argument are the county and

its sheriff. However, the sheriff is an employee and

not a political subdivision, and as such the focus of

the following analysis is the County of Summit.!%

Resolution of the immunity question requires

a “three-tiered” analysis under Ohio law. See Cater

v. City of Cleveland, 83 Ohio St.3d 24, 28, 697

N.E.2d 610 (1998); Butler v. Jordan, 92 Ohio St.3d

arts and crafts center, band or orchestra, or off-street parking

facility. Mead

Ohio Rev. Code §22744.01(G)(b)(2)(a)-(e).

13 This Court views the sheriff as an employee of the political

subdivision, i.e., county. Ohio Rev. Code §2744.01(B) defines

employee to include “any elected or appointed official of a

political subdivision.” See Waggoner v. Carsey,129 Ohio App.3d

79,83, 716 N.E.2d 1225 (1998); Simpson v. White, 1997 WL

86313 (Ohio App 12 Dist); Young v. Summit Cty., 67 Ohio

App.3d 661, 663-64, 588 N.E.2d 169 (9th Dist. 1990), appeal

dismissed, 55 Ohio St.3d 705, 562 N.E.2d 898 (Table 1990).

Alternatively, Ohio’s Tenth Appellate District has recognized

the “sheriffs department” as an extension of the “county.” See

Williams v. Franklin County, Ohio Sheriffs Dept., 84 Ohio

App. 3d 826, 619 N.E.2d 23 (10u Dist. 1992), appeal dismissed

66 Ohio St.3d 1485, 612 N.E.2d 1242 (Table 1993); Twinev. —

Franklin Cty. Sheriffs Dept. 68 Ohio App.3d 51, 587 N.E.2d

411 (10 Dist. 1990);. Ohio's Twelfth District has accorded the

“Sheriffs Office” recognition as “a body corporate and politic.”

Jones v. Franklin Cty. Sheriffs Dept., 1999 WL 527782 (12

Dist. 1999). But see Saunders v. McFaul, 71 Ohio App.3d 46,

593 N.E.2d 24 (8 Dist. 1990), (finding sheriff was not included

in definition of “political subdivision”, but not next considering

whether sheriff was an “employee”.

343, 357, 750 N.E.2d 554 (2001); Greene Cty. Agri-

cultural Soc. v. Liming, 89 Ohio St.3d 551, 733

N.E.2d 1141 (2000); Ry// v. Columbus Fireworks

Display Co., Inc., 95 Ohio St.3d 467, 469-70, 769

N.E.2d 372 (2002). The first tier is to determine

whether the County of Summit engaged in a govern-

mental function. Ay//, 95 Ohio St. 3d at 469; Greene

Cty. Agricultural Soc., 89 Ohio St.3d at 557. Law

enforcement services are considered a government

function. See Ohio Rev. Code §2744.01(C)(2)(a); Haas

v. Hayslip, 51 Ohio St. 2d 135,136, 5 0.0.3d 110, 364

N.E.2d 1376. 1377-78 (1977), overruled on other

grounds, Haver/ack v. Portage Homes, Inc., 2 Ohio

St.3d 26, 442 N.E.2d 749 (1982) .

Because it is undisputed that the county is a

political subdivision, the gencral rule of immunity

from damages applies. See Ay//, 95 Ohio St.3d at

469. Only, “. . . when the political subdivision at is-

sue is not one of the bodies specifically mentioned

within R.C. 2744.01(F), the exceptions to immunity

of R.C. 2744.02(B) shouldbe construed in a way that

leads to a finding of immunity for only the central

core functions of the political subdivision.” Greene

Cty. Agricultural Soc., 89 Ohio St.3d at 560. When

the body politic is not specifically identified by stat-

ute then subsequent legal analysis must focus on the

specific activity, which in Greene Cty. Agricultura!

Soc. was the “proprietary function” of a livestock

competition even though the agricultural society

performed a governmental function of education. /d.,

89 Ohio St.3d at 555- 56, 559-60. A county, on the

other hand, is specifically identified in Ohio Rev.

Code §2744.01(F), so, conversely, immunity is not

constrained to the “central core function,” and should

be given broad sway. Compare /d., 89 Ohio St. at

560.

Plaintiffs apparently construe the functions

involved as responding to telephone calls and issuing

press releases, as a proprietary function of the coun-

ty. Plaintiffs could narrow these asserted functions

further to the alleged acts of slanderous statements

and written libel.!4 The provision of police services,

though, by statute is a “governmental function” for

which there is immunity. See Ohio Rev. Code

§2744.01(C)(2)Ma); §2744.02(A)(1). Plaintiffs appear

to be leveraging their position by the lack of a speci-

fic definition of what constitutes police service. How-

ever the roles [sic] of statutory construction requires

that the words be given their ordinary and natural

meaning unless the statute indicates that the legis-

lature intended an alternative meaning. Laymen v.

Woo, 78 Ohio St.3d 485, 487, 678 N.E.2d 1217, 1997

- Ohio - 195 (1997); Thompson Elec., Inc. v. Bank

One, 37 Ohio St.3d 259, 264, 525 N.E.2d 761 (1988).

The goal is to give effect to the legislature’s inten-

tion. See Cline v. Ohio Bur. of Motor Vehicles, 61

Ohio St.3d 93, 97, 573 N.E.2d 77 (1991).

Aside from the fact that it is well-established

that police services are a governmental and not a

'* See A&B Abell Elevator Co., Inc., v. Columbus/Central Ohio

Bldg. & Construction Trades Council, 73 Ohio St.3d 1, 7 (1995),

pointing out that plaintiffs defamation claim was in fact a

claim for libel, “a false written publication made with some

degree of fault, reflecting injuriously on a person's reputation,

or exposing a person to public hatred, contempt, ridicule or

shame or disgrace, or affecting a person adversely in his or her

trade, business, or profession.”

proprietary function,'® state caselaw has viewed the

provision or nonprovision of police services under

Ohio Rev. Code §2744.01(C)(2)(a) expansively. See

Estate of Graves v. City of Circleville, 2005 WL

503372, 2005- Ohio- 929 (Ohio App. 4 Dist.) (Muni-

cipal impoundment of motor vehicle following arrest

for driving under influence of alcohol and/or drugs);

Haas v. Hayslip, 51 Ohio St.2d at 135 (alleged inten-

tional shooting by municipal plaintiffs and negligent

employment of police officers by city). McCloud v.

Nimmer, 76 Ohio App.3d at 535 (municipal off-duty

officer's gun discharged and accidentally injured of-

ficer’s friend during impromptu demonstration of

disarming techniques). Schoenfield v. Navarre, 164

Ohio App.3d 571, 843 N.E.2d 234, 238, 2005-Ohio-

6407 (2005) (immunity from wrongful death action

following suicide of “suspicious” individual who had

been questioned after purchasing a firearm); Maggio

v. City of Warren, 2006 WL 3772258 *5-6, 2006-

Ohio-6880 (Ohio app. 11 Dist.) (¢mmunity for home-

owners assault, battery, false arrest, malicious

prosecution and intentional and negligent infliction

of emotional distress claims arising from police in-

trusion to capture fleeing suspect hiding in home).

More to the point, police service has also included

release of an expunged criminal record to news

media containing embarrassing information. Vi//a v.

Village of Elmore, 2005 WL 3440787 *6, 2005-Ohio-

6649 (Ohio App. 6 Dist.). In that matter, the village

released the personne! file of a discharged police of-

'S See McCloud v. Nimmer, 72 Ohio App.3d 533, 538, 595

N.E.2d 492 (1991). Haas v. Akron, 51 Ohio St.2d 135, 364

N.E.2d 1376 (1977), overruled on other grounds, Haverlack v.

Portage Homes, Inc., 2 Ohio St.3d 26, 442 N.E.2d 749 (1982).

ficer containing subpoenas relating to expunged

criminal charges against the former officer. /d.,

912-13, 15. The state appellate court found im-

munity because this related to the provision of police

services. Jd., 435. It is apparent that police services

covers a broad range of activities associated with the

performance or nonperformance of police work.

The second of the three tiers is the point at

which there is resolution of whether any exception to

_ the general rule of immunity is found in Ohio Rev.

Code §2744.02(B)(1)-(5). See Greene Cty. Agricul-

tural Soc., 89 Ohio St.3d at 557; Ry//, 95 Ohio St.3d

at 470. Plaintiffs appear to contend that the “pro-

prietary function” exception of Ohio Rev. Code

§2744.02(B)(2) is applicable, but again, police

services are by definition governmental.

As for the third tier under this structured an-

alysis, it is at this point where defenses under Ohio

Rev. Code §2744.03 are considered. Review becomes

necessary only when one of the listed exceptions is

found under the second tier. Jd. Accordingly, giving

police services its ordinary and natural meaning,

defendant County of Summit is immune from suit

under Ohio’s Political Subdivision Tort Liability Act

from plaintiffs’ allegations of police misconduct in

issuing press releases and providing “unverified in-

formation” to callers. Aside from the challenge to the

constitutionality of Ohio Rev. Code §2744.02(A)(1),

which shal] be addressed later, plaintiffs present no

other basis to overcome governmental immunity.'®

torts asserted by plaintiffs. £.g., false arrest /impris.nment.

Vasquez v. Village of Windham, 2006 WL 3478417, 2006 - Ohio

- 6342 (Ohio App. 11 Dist.); Ziegler v. Mahoning Cty. Sheriff's

Dept., 137 Ohio App.3d 831, 739 N.E 2d 1237 (2000); defame:

County of Summit - Employees

Sheriff, County Councilmembers and County

Executive:

Plaintiff has shown no involvement by the

county’s governing officials. With respect to the

sheriff, Ohio Revised Code §311.05 limits the Sher-

iffs responsibility for the actions of his deputies to

instances where he orders the action taken, has prior

knowledge, participates in acts in reckless disregard

or ratifies the neglect of duty or misconduct of the

deputy. The sheriff cannot be held liable for damages

arising out of a deputy sheriff's warrantless arrest

where there is no indication that the sheriff was

directly involved in any way with the arrest. See

Ridgeway v. Union Cty. Comm'rs, 775 F Supp. 1105

(S.D. Ohio 1991). Plaintiffs have failed to establish

respondeat superior within these statutory cons-

traints and consequently summary judgment must

be granted in favor of Sheriff Alexander in his indi-

vidual capacity with regard to state law-based

claims.

With respect to the governing members of

county government, there is no legal authority which

would hold them liable in a personal or individual

capacity to respond out of their personal funds for

tortious actions of subordinates. Moreover, plaintiffs

have not alleged any personal involvement in the

ation, Dennis v. Coventry Local School Dist. Bd. of Ed., 2006

WL 1540840, 2006 - Ohio - 2847 (Ohio App. 9 Dist.); Jones v.

Franklin Ctv. Sheriffs Office, 1999 WL 527782 (Ohio App. 12

Dist.); invasion of privacy, Villa v. Village of Elmore, 2005 WL

3440787 (Ohio App. 6 Dist.); intentional infliction of emotional

distress, Maggio v. City of Warren, 2006 WL,3772258, 2006 -

Ohio - 6880 (Ohio App. 11 Dist); Ramey v. Mudd, 154 Ohio

App.3d 582, 798 N.E.2d 57 (2003).

torts alleged of county council or the county exec-

utive. Given that the county itself is shielded by im-

munity under Ohio Rev. Code §2744.02(A)(1), plain-

tiffs have failed to overcome defendants’ motion for

summary judgment regarding these individuals.

False Arrest and False Imprisonment:

Plaintiffs have conceded to defendants that

the elements of the torts of both false arrest and

false imprisonment are indistinguishable and re-

quire: first, that the person conducting an arrest or

detention had no authority to do so; and second, that

the arrest or detention was not conducted according

to proper legal procedures. See Feliciano v. Kreiger,

50 Ohio St.2d 69, 71, 4 0.0.3d 158, 362 N.E.2d 646

(1977); Rogers v. Barbera, 170 Ohio St.2d 241, 243-

44, 164 N.E.2d 162 (1960) (false arrest and false

imprisonment are indistinguishable); and see Thack-

er v. City of Columbus, 328 F.3d 244, 261 (6 Cir.

2003) (applying two-prong test to allegations of false

arrest). Defendant employees argue that there was

no false arrest/imprisonment because there was

probable cause to arrest. Whether there is probable

cause to arrest, however, is not the appropriate line

of inquiry. See Zhacker, 328 F.3d at 261. State law

holds with respect to false arrest’s twin , false im-

prisonment, that “[flalse imprisonment per se is not

concerned with good or bad faith, malicious motive,

want of probable cause on the part of the prosecuting

witness, or the officer causing the imprisonment. If

the imprisonment was lawful, it is not the less law-

ful that any or all of the foregoing elements existed.”

Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E.

451 (Syllabus 42) (1918); Durbin v. Ohio State High-

way Patrol, 83 Ohio App.3d 693, 697, 615 N.E.2d 694

(1992); Tucker v. Kroger Co., 133 Ohio App.3d 140,

726 N.E.2d 1111 (1999). Substituting detention or

arrest for “imprisonment” in the foregoing passage

serves to refine the elements of false arrest.

As noted in Rogers, “[a] suit for false arrest or

false imprisonment is the proper action where the

aggrieved party is arrested without legal process, or

under a void process; but where the process on which

the arrest is made is regular on its face, but is sued

out maliciously and without probable cause, the re-

medy is an action for malicious prosecution.” Jd. 170

Ohio St. at 244, quoting 22 Am. Jur. 353, false im-

prisonment §§2-3 (1939). This point has also been

phrased that “an action for false imprisonment can-

not be maintained where the wrong complained of is

imprisonment in accordance with the judgment or-

der of a court, unless it appears that such judgment

or order is void.” Dieh/ v. Friester, 37 Ohio St. 473,

475 (1882); Bennett v. Ohio Dept. of Rehab. & Corr.,

60 Ohio St.3d 107, 111, 573 N.E.2d 633 (1991). Thus,

an arrest in accordance with a facially valid warrant

is a complete defense. See Brinkman, 97 Ohio St.

171 (syllabi §4-6). Plaintiffs have not shown that the

arrest warrant was “void.” Consequently, there is no

genuine issue of material fact with respect to the al-

legations of false arrest/ imprisonment.

Defamation:

Defamation has two forms in Ohio, liable [sic]

and slander. Slander refers to spoken defamatory

words while liable refers to written matters or mat-

ters broadcast on radio and television. See Elsass v.

Tabler, 131 Ohio App.3d 66, 70-71, 721 N.E.2d 503

(1999); Sweitzer v. Outlet Comm., Inc., 133 Ohio

App.3d 102, 108, 726 N.E.2d 1084 (1999); Perez v.

Scripps- Howard Broadcasting Co., 35 Ohio St.3d

215, 520 N.E.2d 198 (1988). This tort has four ele-

ments: “a false and defamatory statement concern-

ing another; unprivileged publication to a third par-

ty: fault amounting to at least negligence by the pub-

lisher; actionability of the statement irrespective of a

special harm or the existence of a special harm.” Ak-

ron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv.,

Inc., 81 Ohio App.3d 591, 601, 611 N.E.2d 955, 962

(1992) quoting 3 Restatement of the Law2d Torts

§558, pg. 155 (1977); and see Jackson v. City of Col-

umbus, 194 F.3d 737, 757 (6m Cir. 1999). Plaintiffs

present the affidavit of Ms. Brothers to support this

claim with the following allegations:

In the Affidavit for Search Warrant

of KD Day Care, Detective Rinear said

that I had given false information to Hol-

land-Vincer concerning my status as a re-

tired teacher when she stated “Claudia

Brothers was not found as an employee of

the Canton School District.” The Affidavit

is a matter of public record and was used

as a source for media information that was

highly publicized much to my embarras-

sment.

The Sheriffs department gave false

and misleading information to the media

when they stated that David’s mis-

demeanor of child endangering involved

having a loaded 9 mm pistol and a 12-inch

knife in the unlocked drawer in a private

office accessible to the children of the day

care center.” I had unlocked those rooms

for the detectives. They were in a private

bathroom used exclusively by myself and

David Corsi. Only he and I had the keys to

that bathroom because we kept cleaning

agents that could be dangerous to kids in

that room.

| I was also embarrassed by the Af-

fidavit’s statement “that Mr. Corsi and

Ms. Brothers are personally involved with

each other and like to take bus trips for

recreation.” This statement resulted in

publication of my private affairs with

which the public had no legitimate con-

cern. These statements led to further hu-

miliation when the media reported that I

was Corsi’s “live-in girlfriend.” David and

I are long term friends and business part-

ners.

Due to the release of the affidavit

for search, I was subjected to being photo-

graphed and videotaped by local media

without my permission at my business, in

my car, and at municipal and county

courts. Reporters attempted to interview

me in person and by telephone, interrupt-

ing the performance of my duties as Ad-

ministrator of KD Day Care and disrupt-

ing my personal life.

The outrageous false statements in

the affidavit and the arrest and jailing of

my friend and business partner had a

devastating emotional impact on me.

Some parents called after the arrest

to say that the Sheriffs Department had

interviewed their children. Linda Rinear

claims that so called confidentials exist for

every interview. Yet no confidentials exist

for interviews of a mother Helen Gorze-

lancik, the Ferrara children, or the Wod-

arcyk’s child. The parents expressed to me

that they knew nothing like what was re-

ported in the press had ever happened and

that their children were happy at the day

care. Several of the children from the a-

bove fa:nilies and several of the children

who were interviewed such as the Christ-

ley child still attend before school pro-

grams, after schoo] programs and summer

programs at the day care.

The actions of the Summit County

Sheriffs department over the following six

months left everything David and I had

built in the business in ruins. The busi-

ness has never recovered from the false

allegations made against David. My hife-

long reputation as a caring, competent

teacher and caregiver for children was

severely damaged.

(Brothers Aff., Docket No. 60). Plaintiffs also refer to

deposition testimony in their responsive brief from

Capt. Momchilov and non-party Inspector

Thornton. ‘7

The first alleged defamatory act is the state-

ment in the affidavit for search warrant concerning

Ms. Brothers’ allegedly falsified employment history.

The defendants raise the defense of qualified privi-

lege. Privilege exists when publication is “fairly

made by a person in the discharge of some public or

'” The court does not believe it is plaintiffs’ intent to argue that

the deposition testimony constituted defamation and moreover

statements made in depositions during pending litigation are

absolutely privileged. See Palmer v. Pheils, 2004 WL 2940815

*6, 2004 - Ohio - 6975 (Ohio App. 5 Dist.).

private duty, whether legal or moral, or in the con-

duct of his own affairs, in matters where his interest

is concerned.” HaAn v. Kotten, 43 Ohio St.2d 237,

244, 331 N.E.2d 713 (1975). Thus, “where circum:

stances exist, or are reasonably believed by the

defendant to exist, which casts on him the duty of

making a communication to assert another person to

whom he makes such communication in the perfor-

mance of such duty, or whether the person is so

situated that it becomes right in the interests of so-

ciety that he should tell third persons certain facts,

which he in good faith proceeds to do, . . .” the com-

munication is qualifiedly privileged. Hahn at 245-

246 and see Davis v. City of Cleveland, 2004 WL

2829027 *7 (Ohio App. 8 Dist.). In general, a police

officer's allegedly defamatory statement made dur-

ing the course of an investigation is at least protect-

ed by qualified privilege. See Black v. Cleveland

Police Dept., 96 Ohio App. 3d 84 (1994); Davis v.

Warrensville Heights, 1998 WL 12337 (Ohio App. 8

Dist.). The essential elements of a qualified commun-

ication are good faith, an interest to be upheld, a

statement limited in scope to this purpose, a proper

occasion and publication in a proper manner and the

proper parties only.” Hahn, supra., Davis v. City of

Cleveland, supra; Sharma v. Hummer, 2001 WL

460281 *6, (Ohio App. 6 Dist.). There is no question

that Detective Rinear’s statement in her affidavit

presented to the court to obtain a search warrant is

so privileged. Moreover, the public has an interest in

the investigation as it concerned while not a “public

school” as in Sharma, but certainly a daycare center

which is open to the public and is certainly just as

vital a part of the community and concerning the

public safety. Plaintiffs argue only that malice be

inferred from the proof of lack of probable cause

citing Melanowski v. Judy, 102 Ohio St. 153, 155,

131 N.E. 360 (1921). However, as explained prev-

iously in discussing the Fourth Amendment claims,

there was probable cause and plaintiffs have cer-

tainly failed to establish a genuine issue of material

fact regarding the claim that malice should be infer-

red because the deputies had lacked probable cause

to search and to arrest. The fact that the officers con-

veyed erroneous information gathered in their in-

vesttigation does not overcome the qualified privi-

lege.

Next plaintiffs claim that the “Sheriffs De-

partment” misinformed the media concerning the

location of the loaded 9 .mm pistol and 12-inch knife

as located in an accessible private office as opposed

to an inaccessible private bathroom. Again there is

the qualified privilege of reporting on matters of

public concern during the pending criminal investi-

gation. See Sharma v. Hummer, 2001 WL 460281 at

*6-7. McCartney v. Oblates of St. Francis deSales, 80

Ohio App.3d 345, 609 N.E.2d 216 (1992). To over-

come this the plaintiff must show actual malice un-

der its common law definition of “ill will, hatred, a

spirit of revenge, or a conscious disregard of the

right and safety of the other persons which has great

probability of causing substantial harm.” Varanese

v. Gall, 35 Ohio St.3d 78, 79, 518 N.E.2d 1177

(1988); Preston v. Murty, 32 Ohio St.3d 334, 512

N.E.2d 1174 (1987). The deposition testimony offered

by plaintiffs supports defendants’ position that their

statements were made with the belief that the gun

and knife were “accessible.” This evidence clearly

does not demonstrate “actual malice” to overcome

the qualified privilege.

As for the statement of personal involvement

between plaintiffs, plaintiffs have not met their

burden of establishing by clear and convincing evi-

dence that the alleged statements at issue were

false. See Dale v. Ohio Civ. Serv. Empl. Assn., 57

Ohio St.3d 112, 114 (1991); Lansdowne v. Beacon

Journal Pub. Co., 32 Ohio St.3d 176, 178-81 (1987).

Eg. Dennis v. Coventry Local School Dist. Bd. of

Ed., 2006 WL 150840 *7, 2006 - Ohio - 2847 (Ohio

App. 9 Dist.) (plaintiff failed to show statements by

school board to press concerning allegations of inap-

propriate sexual] conduct with students on overnight

field trip constituted malicious purpose, bad faith, or

conduct of a wanton or reckless manner).

Invasion of privacy appropriation of personalities:

In Housch v. Peth, the Ohio Supreme Court

recognized for the first time the tort of invasion of

privacy but included only three of its forms, wrongful

appropriations of one’s name or likeness, publication

of embarrassing private facts, and intrusion upon se-

‘clusion. Jd@., 165 Ohio St. 35, 59 0.0. 60, 1383 N.E.2d

340 (1956). Plaintiffs allege the appropriation of

personalities, the first form of invasion of privacy. As

explained in Aestatement of Torts, appropriation is

the use of plaintiffs name or likeness to advertise

defendants’ business or product, or in a poncommer-

cial setting makes use of the name or likeness for

defendants’s own purposes and benefit. Restatement

(Second) of Torts §652C(b) Comment (1977). The

restatement goes on to explain that while the tort

generally occurs in a commercial setting, commercial

use is not an element, and illustrates this point with

an example of a situation of a private detective im-

personating another to gain confidential information

which would not have otherwise been disclosed. /d,,

Illus. Nothing in plaintiffs’ affidavits establishes this

allegation to demonstrate a factual basis for appro-

priation of plaintiffs’ personalties.

However the complaint does go on to state

that these actions resulting in a publication of plain-

tiffs’ private affairs to the public in matters in which

the public had no legitimate concern — the second

form of invasion of privacy. See Sustin v. Fee, 16

Ohio St.2d 143, 23 0.0.3d 182, 431 N.E.2d 992

(1982); Restatement (Second) of Torts §652B. Report:

ing arrest charges and matters in the public record

is not a revelation of secret or private concerns. See

Haynik v. Zimlich, 30 Ohio Misc.2d 16, 21-22, 508

N.E.2d 195, 200 (C.P. Cuyahoga Ct. 1986).

- The tort of public disclosure requires (1) pub-

licity of a public nature, not private; (2) that the dis-

closure concerned facts about the plaintiffs private

life not his public life; (3) that the publicized matter

would be highly offensive and objectionable to a

reasonable person of ordinary sensibility; (4) that the

disclosure was intentional, not negligent, and (5)

that the publicized matter must. not be a legitimate

concern to the public. Ai//ilea v. Sears, Roebuck &

Co., 27 Ohio App.3d 163, 166-67, 499 N.E.2d 1291

(1985); Early v. The Toledo Blade, 130 Ohio App.3d

302, 342, 720 N.E.2d 107 (1998).

The first statement concerning the allegedly

-false information given to Ms. Holland- Vincer was

not a private matter but concerned the state’s regu-

latory oversight of daycare centers and results of this

state employee’s investigation into Ms. Brothers’

background. It thus was a matter of public concern.

The same holds true with the presence of the loaded

handgun and 12-inch knife at the daycare especially

given the plaintiffs evidence that the sheriff's depu-

ties believed that the firearm was accessible to the

children. This establishes that the publication was

made at most negligently and not intentionally. The

third allegation concerning the relationship between

Mr. Corsi and Ms. Brothers was as alleged in Detec-

tive Rinear’s affidavit to obtain a search warrant.

Public concern existed since the officer was demon-

strating a nexus between Mr. Corsi and Ms. Broth-

ers due to her alleged involvement with Mr. Corsi as

a possible accessory in the contraband the officers

were searching [sic]. Moreover the invasion of priva-

cy must intrude into a truly private matter, and not

a matter which plaintiff has made public. See Po/-

lack v. Rashid, 117 Ohio App.3d 361, 369, 690

N.E.2d 903 (1996). Detective Rinear obtained this in

formation from Ms. Hollan-Vincer of the Department

of Human Services who oversaw the daycare and

had conducted regulatory inspections. (See Det.

Rinear Aff. for Search Warrant, 912, ex. A-1, Docket

No. 38). Thus, the matter had not been truly private.

Thus it is a revelation that Ms. Brothers also was

under criminal investigation. Finally, the allegations

concerning the missing confidential investigative

reports in no way support a claim for invasion of

privacy.

Intentional Infliction of Emotional Distress:

Plaintiffs argue that they suffered intentional

infliction of emotional] distress because their private

lives were revealed to the public, that they suffered

from false statements which destroyed their repute-

tion as caregivers, and that they were the victims of

an investigation by defendants who are proceeding

without probable cause and who knew that this

would hurt plaintiffs. A claim of intentional infliction

of emotional] distress (ITED) requires defendant to

show, “(1) that the defendant intended to cause the

plaintiff serious emotional distress, (2) that the

defendant's conduct was extreme and outrageous,

and (3) that the defendant’s conduct was the proxi-

mate cause of plaintiff's serious emotional distress.”

Phung v. Waste Mept., Inc., 71 Ohio St.3d 408, 410,

644 N.E.2d 286 (1994); Reamsnyder v. Jaskolski, 10

Ohio St.3d 150, 462 N.E.1d 392 (1984). Ohio’s Su-

preme Court has stressed that IIED, as defined in

Yeager v. Local Union 20, 6 Ohio St.3d 369, 453

N.E.2d 666 (1983), and Reamsnyder v. Jaskolski,

supra, requires conduct “so outrageous in character,

and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious

and utterly intolerable in a civilized community.”

Reamsnyder, 10 Ohio St.3d at 153. The allegations

in the amended complaint fail to rise to a claim of

ITED.

Plaintiffs have not shown intent to cause ser-

jous emotional distress that would exceed the dist-

ress associated generally with being the focus of

criminal investigation and prosecution. Further the

defendant employees acted with probable cause and

pursuant to judicially issued search warrants and

Mr. Corsi’s arrest was upon the prosecutor's consent.

The evidence offered by plaintiffs simply does

not demonstrate outrageous and extreme conduct

beyond the bounds of decency. See Hoe v. Heap, 2004

WL 1109849 *29, 2004 -Ohio - 2504 (Ohio App. 10

Dist.) (involving substantially a more egregious situ:

ation where the ITED claim was not sustained by

facts showing that a male juvenile was falsely ac-

cused of being a convicted sex offender by parents of

other diving team members in an effort to exclude

him from diving team activities.

Employee Immunity:

Ohio's Political Subdivision Tort Liability Act

in §2744.03(A)(6) provides employees immunity from

liability unless acts or omissions were “manifestly

outside the scope of the employee’s employment or

official responsibilities,” or were “with malicious pur-

pose, in bad faith, or in a wanton or reckless man-

ner.” 18

“Malice” has been defined as “the willful

and intentional design to do injury orthe

intention or desire to harm another, usu-

ally seriously, through conduct which is

unlawful or unjustified.” Cook v. City of

Cincinnati, 103 Ohio App.3d 80, 90- 91,

658 N.E.2d 814 (Ohio Ct.App.1995) citing

Jackson v. Butler Cty. Bd. of Comm'rs., 76

Ohio App.3d 448, 602 N.E.2d 363 (Ohio

Ct.App.1991). “Bad faith,” on the other

hand, is defined as “a dishonest purpose,

conscious wrongdoing, the breach of a

known duty through some ulterior motive

or il] will, as in the nature of fraud, or an

actual intent to mislead or deceive an-

other.” /d. “Wanton misconduct” is

'8 In addition to any immunity or defense referred to in division

(A)(7) of this section and in circumstances not covered by that

division or sections 3314.07 and 3746.24 of the Revised Code,

the employee is immune from liability unless one of the

following applies:

(a) the employee's acts or omissions were manifestly outside the

scope of the employee’s employment or official responsibilities.

(b) The employee's acts or omissions were with malicious

purpose, in bad faith, or in a wanton or reckless manner;

Ohio Rev. Code §2744.03(A)(6)(a) and (b) (Anderson

2000)(Identical to current version effective 4-9-2003).

characterized by “the failure to exercise

any care whatsoever.” Cook, 103 Ohio

App.3d at 90-91, 658 N.E.2d 814 citing

Fabrey v. McDonald Police Dept., 70 Ohio

St.3d 351, 356, 639 N.E.2d 31, 35 (Ohio

1994) (“mere negligence is, not converted

into wanton misconduct unless the evi-

dence establishes a disposition to perver-

sity on the part of the tortfeasor.”); Haw-

kins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d

367 (Ohio 1977). “Reckless conduct” occurs

when a person “does an act or intention-

ally fails to do an act which it is his duty

to the other to do, knowing or having reas-

on to know of facts which would lead a

reasonable man to realize, not only that

his conduct creates an unreasonable risk

of physical harm to another, but also that

such risk is substantially greater than

that which is necessary to make his con-

duct negligent.” Thompson v. McNeill, 53

Ohio St.3d 102, 104-105, 559 N.E.2d 705

(Ohio 1990).

Davis v. City of East Cleveland, Ohio, 2006 WL

753129, *14 (N.D. Ohio 2006)

Defendant employees have established that

these actions were not manifestly outside the scope

of employment or official responsibilities with regard

to the searches and Mr. Corsi’s arrest.

Further a matter raised by plaintiffs, but not

appearing in their affidavits concerned a press re-

lease. The press release announced Mr. Corsi’s ar-

rest on two counts of child endangering, one count of

disseminating matter harmful to children and one

count of voyeurism. It also included the results of the

search including a “loaded” 9 mm pistol, a 12-inch

Bowie knife, a leather bullwhip, two video cameras,

a computer, various videctapes, a television monitor

and various photos depicting nudity. All these state-

ments were true. Plaintiffs’ complain, however, that

the press release did not place these revelations in a

proper “context” for the public because it failed to

mention that no pictures of nude children were

found, that the whip was used as a toy by the chil-

dren pretending to be Indiana Jones and that the

gun and knife were a locked room not used by the

children.

The issuance of a press release by government

officials is action under Ohio Rev. Code

§2744.03(A)(6)(a) as within “the scope of the employ-

ee’s employment or official responsibilities.” The

state courts have relied on the Supreme Court’s

recognition in Barr v. Mateo, 360 U.S. 546 (1959),

yet the issuance of a press release by a high public

officials has become standard ... practice .. . with

many government agencies” and “in the line of duty.

Id. at 574-75. See Whiting v. Coyne, 1996 WL

492266 at *2-3 (Ohio App. 8 Dist.). Plaintiffs shown

lsic] that Captain Momchilov's actions were with

malicious purpose, in bad faith or wanton or con-

ducted in a reckless manner to except this from a

general grant of immunity under subpart b of

§2244.03(A)(6). Assuming plaintiffs are attempting

to assert that Captain Momchilov was negligent and

consequently defamatory, plaintiffs must prove neg-

ligence by clear and convincing evidence. See Parry

v. Mohawk Motors of Michigan, Inc., 236 F.3d 299,

312 (6» Cir. 2000); Landsdowne v. Beacon Journal

Pubzg. Co. 32 Ohio St.3d 176, 512 N.E.2d 979, 984

(1987); Garrett v. Fisher Titus Hospital, 318

”

F.Supp.2d 562, 577 (N.D. Ohio 2004). They have

failed on this point also.

Plaintiffs again outside of their affidavits com:

plain about the conversations between the public a-

bout their daycare or them personally and sheriffs

deputies. Plaintiffs have attached pages of trans-

cribed conversations without indicating where any

defamation occurred. It is not the court’s function to

peruse the record and independently ascertain the

point, if any, that defamation allegedly occurred.

In any event, plaintiffs have failed to demon-

strate “wilfulness or reckless misconduct that in-

volve[s] an ‘intentional deviation from clear duty or

from a definite rule of conduct, a deliberate purpose

not to discharge some duty necessary to safety, or

purposely doing wrongful acts with knowledge or

appreciation of the likelihood of resulting injury.”

Tighe v. Diamond, 149 Ohio St. 520, 527 (1948);

Vasquez v. Village of Windham, 2006 WL 3478417

*7, 2006 - Ohio- 6342 (Ohio App. 11 Dist.). The evid-

ence presented by plaintiffs does not demon-strate

that the investigation, searches, or arrest were con-

ducted with perversion of will or perverse discharge

for known risk of the possibility of injury which

resulted. See Vasquez, supra. Accordingly, there is

no genuine issue of material fact which obstructs the

defendant employees’ claims of immunity under

Ohio's Political Subdivision Tort Liability Act.

Constitutionality of Ohio’s Political Subdivision

liability Act:

Plaintiffs counter that this court should follow

the dicta from Butler v. Jordan, 92 Ohio St.3d 354,

750 N.E.2d 554 (2001), to the effect that Chapter

2744 violates the state constitution.!9

Again, he [sic] federal court in exercising

supplemental jurisdiction must predict how the state

court would decide a case “based on ‘all relevant

data’ including such dicta.” Chandler, 283 F.3d at

824; Garden City Osteopathic Hosp. v. HBE Corp.,

A5 F.3d 1126, 1130 (6 Cir. 1995). All relevant data,

though, also includes lower state court rulings.

Chendler, at 824. The lower state courts have found

the dicta from Butlerthat Chapter 2744 is uncon-

stitutional to be neither binding nor persuasive.

State court decisions have: pointed out that legis-

'9 his constitutional challenge triggers inquiry on the need to

comply with Ohio Rev. Code §2721.12(A), the state declaratory

judgment statute. In Cicco v. Stockmaster, 89 Ohio St.3d. 95,

728 N.E.2d 1006 (2000), Ohio’s Supreme Court found that a

state trial court lacked jurisdiction under the former version of

this declaratory judgement [sic] statute to consider the

constitutionality of a statute on motion for summary judgement

without a prior presentation of the issue in the complaint or

amended complaint and without notifying the Ohio Attorney

General of the constitutional challenge as required under this

statute. Ja., 89 Ohio St. 3d at 95, 728 N.E.2d at 1067 (syllabus).

Whether plaintiffs are required to amend in order to assert

their constitutional challenge would require examination of

whether the state law is substantive, which a federal] court

must apply, in exercising its diversity or supplemental

jurisdiction, or whether it is simply a matter of procedure,

which federal law governs under the Zriedoctrine. See Erie

Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.

1188(1938). Federal district court decisions have brushed aside

the state requirement as a “procedural” matter. See Be// v.

Marinko, 235 F. Supp.2d 772, 780 (N.D. Ohio 2002); Kammeyer

v. City of Sharonville, 311 F. Supp.2d 653, 661-62 (S.D. Ohio

2003). Hence no amendment of the complaint to include a

declaratory judgment claim will be necessary

lative enactments enjoy a presumption of validity

and constitutionality( Adamsky v. Buckeye Local

School Dist., 73 Ohio St.3d 360, 361, 653 N.E.2d 212

(1995)); that only three justices agreed in But/er's

plurality decision that Chapter 2744 violates Article

I Section 16 of the Ohio Constitution, as applying

only to the “state” and not its “political subdivisions;”

noted that the state supreme court had held that

Article I Section 16 granted the General Assembly

constitutional authority to pass legislation granting

immunity to political subdivisions; and noted that

among them no state appellate court has followed

the plurality’s dicta. See Bundy v. Five Rivers Met-

roparks, 152 Ohio App. 3d 426, 787 N.E.2d 1279 (2in

Dist. 2003); Thompson v. Bagley, 2005 WL 940872

(Ohio App. 3d Dist. Apr 25, 2005); Ratcliff v. Darby,

2002 WL 31721942 (Ohio App. 4t Dist. Dec. 2, 2002):

Eischen v. Stark Cty. Bd. of Comm’s., 2002 WL

31831395 (Ohio App. 5u Dist. Dec. 16, 2002); Walker

v. Jefferson Cty. 2003 WL 21505472 (Ohio App. 7

Dist. Jun 25, 2003); Shadoan v. Summit Cty. Chil-

dren Services Bd., 2003 WL 22438893 (Ohio App. 9

Dist. Jan. 16, 2002); Spencer v. Lakeview School

Dist., 2004 WL 2803302 (Ohio App. 11u Dist. Sep.

30, 2004). Accordingly this court disagrees with the

position expressed in Kammeyer, 311 F. Supp. 2d

653, 661-63 (S.D. Ohio 2003) and Owensby v. City of

Cincinnati, 385 F. Supp. 2d 626, 629- 30 (S.D. Ohio

2004), to adhere to Butler's dicta that Chapter 2744

is unconstitutional, as the best prediction of how the

Ohio Supreme Court will address this issue based on

“all relevant data” including dicta when directly con-

fronted, especially considering that the dicta is a

minority position. See Zillis ex rel. Pendergrass v.

Cleveland Mun. School Dist., 455 F.3d 690, 697-98

(6m Cir. 2006).

Plaintiffs’ allegations do not establish clear

and convincing evidence of negligence in order to.

make the press release defamation without regard to

the statutory immunity.

CONCLUSION

For the foregoing reasons the defendants’

motion for summary judgment is granted, judgment

is entered for defendants and the case is dismissed.

s/James S. Gallas

United States Magistrate Judge

Dated: May 25, 2007

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NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

File Name: 08a0170n.06

Filed: March 27, 2008

No. 07-3840

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLAUDIA BROTHERS; DAVID L. CORSI,

Plaintiffs-Appellants,

v. .

COUNTY OF SUMMIT, Members of its County

Council and its County Executive; DREW

ALEXANDER, Summit County Sheriff Officer, In

his individual and official capacity; LINDA K.

RINEAR, Summit County Sheriff Officer, In her

individual and official capacity: L. MOMCHILOV,

Summit County Sheriff Officer, In his individual and

official capacity; KELLY FATHEREE, Summit

County Sheriff Officer, In her individual and official

capacity; JOHN DOE, 1 through 10, Supervisors,

Summit County Sheriffs Officers, In their individual

and official capacities,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO

OPINION

BEFORE: COLE, GIBBONS, and ROGERS, Circuit

Judges.

R. GUY COLE, JR. - Plaintiffs-Appellants Claudia

Brothers and David L. Corsi brought suit against the

County of Summit, members of its County Council

and its County Executive, and the following persons

in their individual and official capacities: Summit

County Sheriff Drew Alexander and Summit County

Sheriff Deputies Linda K. Rinear, Larry Momchilov,

and Kelly Fatheree (collectively, Defendants), al-

leging a Fourth Amendment violation, via 42 U.S.C.

§ 1983, and pendent state law claims of intentional

infliction of emotional distress, false arrest, false im-

prisonment, and defamation.”° Plaintiffs assert that

Defendants’ investigation of Plaintiffs’ daycare facili-

ty, prompted by complaints of improper conduct be-

tween Corsi and several of the children at the day-

care, and Corsi’s subsequent arrest irreparably

damaged their reputations and business.

Defendants moved for summary judgment,

asserting that 1) Defendants are immune from

Plaintiffs’ § 1983 claim and that, in any event,

Defendants did not violate Plaintiffs’ Fourth Amend-

ment rights; and 2) pursuant to Ohio’s Political Sub-

division Tort Liability Act, Defendants are immune

from Plaintiffs’ pendent state law claims. Magistrate

Judge James Gallas granted Defendants’ motion for

summary judgment, concluding that Plaintiffs failed

to demonstrate thatDefendants violated their rights

and that Defendants are also immune from Plain-

tiffs’ federal and state law claims. Plaintiffs now

appeal the district court’s judgment.

Applying a de novo standard of review, as we

must, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.

2 The district court struck sua sponte the portion of the

complaint naming the John Doe defendants, finding that

Appellants had adequate time to conduct discovery and to

properly identify and serve these unnamed defendants, yet

failed to do so. Appellants do not appeal this decision.

1999) (en banc), we conclude that the district court’s

well-reasoned and thorough opinion supports the

judgment in favor of Defendants and that the is-

suance of a detailed written opinion from this Court

would be unduly repetitious. Accordingly, the judg-

_ ment rendered by the district court is affirmed on

the basis of the reasoning set forth in its May 25,

2007 opinion.

FILED

Jul 10, 2008

LEONARD GREEN, Clerk

No. 07-3840

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLAUDIA BROTHERS, ET AL..,

Plaintiffs-Appellants,

COUNTY OF SUMMIT, MEMBERS OF ITS

COUNTY COUNCIL AND TS COUNTY

EXECUTIVE, ET AL.,

Defendants-Appellees.

ORDER

BEFORE: COLE, GIBBONS, and ROGERS,

Circuit Judges.

The court having received a petition for

rehearing en banc, and the petition having been

circulated not only to the original panel members

but also to all other active judges of this court, and

no judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.