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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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

1

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

3

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

4

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.

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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.

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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).

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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

9

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

11

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

12

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

13

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-

14

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

15

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

16

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).

17

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.”)

18

7
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-

19

Se ee ee Ee

ose Te a Le, UT. eee ee

Bt 6M he a Be

oa oe a” lh ee

E

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

20

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.

21

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

22

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).

23

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

24

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3
4
|
q
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=
=
4
+
a
g

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.

25

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

26

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

27

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.

28

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

29

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)

30

(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.

31

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

”

32

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

33

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

35

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

36

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

37

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

38

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

39

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).

40

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

41

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

42

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

43

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)

44

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

45

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)).

46

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

47

(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.

48

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;

(c) The establishment, maintenance, and operation of a utility.
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,

49

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

51

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.”

52

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).

53

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.'®

'© Ohio's courts have shielded governmental units from the
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:

54

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).

55

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,

56

7

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-

57

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

58

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-

59

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.).

60

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

61

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.

62

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,,

63

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-

64

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

65

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.

66

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).

67

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

68

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

”

69

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,

70

750 N.E.2d 554 (2001), to the effect that Chapter
2744 violates the state constit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0285%3A2. Public record. Not legal advice.