Appendix — Hansen v. Westerville City School District

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MAUREEN HANSEN, et al.,

Plaintiffs,

-V- Case No. C-2-89-607

JUDGE SMITH

WESTERVILLE CITY SCHOOL DISTRICT

BOARD OF EDUCATION, et al.,

Defendants.

OPINION AND ORDER

Plaintiffs bring this action under 42 U.S.C. $1983 and

state law. They assert claims of deprivation of Constitutional

rights, false arrest and malicious prosecution, and assault and

battery. Plaintiffs’ base their <‘ :ms, inter alia, on defendants’

alleged misconduct in |: terfering with plaintiffs’ efforts to

oppose a local property tax levy. This matter is before the

Court on the motion for summary judgment filed by the

Board Defendants (Doc. 45)'. Also before the Court is the

Board Defendants’ motion to strike/notice of objection.”

This action concerns plaintiffs’ efforts, and the Board

Defendants’ alleged interference with plaintiffs' efforts, to

oppose proposed school property tax levies that appeared on

the ballot in May, August and November 1988. The first two

levies failed; the third passed.

A. Plaintiff McIntyre's Distribution

of Leaflets on April 27 and 28, 1988

On April 27 and 28, 1988, plaintiff Margaret

McIntyre distributed leaflets opposing the proposed levy.

She did so while on Westerville School property, viz., two

middle schools.

' The Court has already granted the Police Defendants’

summary judgment motion. The Court will, however, address or clarify

a number of matters relevant to the Police Defendants’ motion in this

opinion.

* The Board Defendants assert that the affidavits plaintiffs

submitted with their memorandum contra contain inadmissible

hearsay, legal conclusions, speculation, conclusions not based on

personal observation, and the like. The Court agrees that the affidavits

are flawed in these respects. The Court also agrees with plaintiffs,

however, that it is not necessary to literally "strike" the affidavits pr any

portions thereof. The Court will simply disregard those portions that are

improper.

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On April 27, MclIntyre handed out leaflets on a

sidewalk outside of Blendon Middle School. Board

Defendants Husarik and Hayfield eventually arrived.

McIntyre apparently gave a leaflet to Hayfield. He says that

after reading the leaflet, he told McIntyre that it violated

election laws because it did not identify the source of the

information it contained. Mclntyre avers that Husarik and

Hayfield threatened to call the police. Husarik and Hayfield

deny this. Mclntyre also alleges that Hayfield “snatched my

leaflets out of the hand of my son's girlfriend." McIntyre

affidavit, para. 9. Plaintiffs do not dispute that McIntyre

continued to distribute leaflets after Husarik and Hayfield had

gone inside the school.

The next day, on April 28, plaintiff McIntyre

again distributed leaflets, but at a different school, Walnut

Springs Middle School. McIntyre again gave Hayfield a

leaflet. Hayfield maintains that as before, he read the leaflet

and told McIntyre that the leaflet violated election laws. He

says that McIntyre said she understood the law and that she

continued to hand out leaflets. McIntyre contends that

Hayfield again threatened to call the police. MclIntyre

affidavit, para. 12.

Plaintiffs do not dispute that the Ohio Elections

Committee later found that MclIntyre's pamphlets violated

election laws.

B. The September 12, 1988

School Board Meeting

Several of plaintiffs’ claims concern plaintiff Gordon

Rood's efforts to speak at the September 12, 1988

Westerville School Board meeting.’ Plaintiffs claim that the

Board improperly interfered with Rood's free speech, and that

they later filed false criminal charges against him for

disrupting a lawful meeting.

Rood, as well as a number of the other plaintiffs,

attended the September meeting. The meeting included a

public participation period. Before the public participation

period began, Board Defendant Miller announced that the

Board would limit the public paicipation period to forty-five

minutes. Five people spoke during this period. A number of

the speakers opposed the levy. Rood did not seek to address

the board during this period. When the public speaking

period was over, Miller announced that the Board would take

a five minute break and continue with the next item on the

agenda.

After the recess, Miller again stated that the Board

would be moving on to the next item on the agenda. Plaintiff

Gordon Rood then interrupted the meeting, insisting that the

Board continue to allow spectators to speak. The Board

declined to do so. Rood then began to pace back and forth in

> Most of the September 12, 1988 Board meeting was

videotaped, and a copy of the videotape has been submitted as a joint

exhibit. The Court has viewed the tape in its entirety.

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front of the podium for more than two and one-half minutes.

In doing so, he prevented Chris Wanner, Director of Pupil

Services, from making his presentation as scheduled. in

response to Rood's conduct, the Board mistakenly voted to

adjourn the meeting.

The meeting eventually resumed. Miller then stated

that the Board would allot another fifteen minutes for public

participation after the scheduled agenda was completed.

Rood, however, again interrupted the meeting, insisting that

spectators be allowed to speak at that time. This interruption

lasted about two minutes.

During this second interruption, plaintiff Hansen

approached the podium and, without having been recognized,

began to speak. The Board ruled her out of order. She

nevertheless continued to speak. The Board permitted her to

complete her comments.

After Hansen was done, the scheduled speaker, Chris

Wanner, again tried to make his presentation. Rood,

however, interrupted Wanner and prevented him from making

his presentation by refusing to yield. After about one

minute, a Westerville City Police Officer escorted Rood from

the meeting hall.

The Board allowed an additional period of public

participation after the meeting. Rood, as well as four other

people, then addressed the Board without further incident.

Of the ten people who spoke during the public participation

period on September 12, 1988, five opposed the levy.

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Several months later, the Board filed a criminal charge

of disrupting a lawful meeting against Rood with respect to

his conduct ai the September 12 meeting. The prosecutor

provided the city of Westerville with a letter on January 6,

1989, in which he expressed his opinion that probable cause

existed to charge Rood with disrupting a lawful meeting

based on the videotape of the September 12, 1988 meeting.

After plea bargaining, Rood entered a plea of no contest to

the lesser offense of disorderly conduct. Municipal Judge

Sheward, however, found Rood not guilty after viewing the

videotape.

C. The October 24, 1988

School Board Meeting

The Board changed its public participation policy in

response to the events of the September 12, 1988 meeting.

The Board announced at its September 26, 1988 meeting

that beginning on October 10, 1988, anyone who wanted to

speak to the Board would have to complete a sign-up sheet.

The Board also stated that it would begin strictly to

observe the five minute limit for individual speakers and

the forty-five minute time limit for the participation period.

The Westerville Board of Education "Coramunique" of

September 26, 1988 and a local newspaper both announced

the new policy

Several of the plaintiffs, including Huffman and

Rood, indicate in their deposition testimony that they were

aware of and understood the policy. Plaintiffs Bresee, Ward,

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Bean, Huffman, D. Waggoner, Hansen and Rood all filed out

sign-up sheets for the public participation periods scheduled

for the October 10 or 24, 1988 meetings.

The Board implemented the policy, without incident,

at the October 10, 1988 meeting. Plaintiffs Bean, Hansen,

Huffman, Rood and D. Waggoner spoke at the October 10

meeting pursuant to the policy.

Plaintiffs Rood, Huffman, Hansen and Waggoner

attended the October 24, 1988 meeting. More people signed

up for the public participation period for that meeting than

there was time allotted. Board Defendant Miller announced

this fact to the spectators at the beginning of the public

participation period. He also told them that because of the

circumstances he would lean toward recognizing people who

had not spoken before. No one voiced an objection to

Miller's approach at that time.

Twelve speakers then addressed the Board: six who

were for the levy and six who opposed it. Miller then

announced that there was time for two more speakers. He

recognized Del Waggoner (husband of plaintiff Lou

Waggoner), an opponent of the levy, and a Mr. Sandman.

After the anti-levy person concluded his remarks,

plaintiff Huffman approached the podium and began to speak

without having been recognized. Board Defendant Miller

ruled Huffman out of order. Huffman, however, refused to

yield the podium and continued to speak. After a few

moments, Police Defendant Tiburzio approached Huffman

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and asked him several times to leave. Huffman then

voluntarily left with Tiburzio. As the two approached the

chamber doors, Tiburzio informed Huffman that he was

placing him under arrest for disrupting a lawful meeting.

As soon as Huffman and Tiburzio left the podium,

plaintiff Rood approached the podium and began to speak.

Defendant Miller ruled him out of order. Rood nevertheless

remained at the podium and continued to speak. Police

Defendant Tiburzio then approached Rood and asked him to

leave. Rood refused to do so, indicating that he wanted to

read something to the Board. Tiburzio then attempted to

lead Rood out of the chambers, holding Rood's arm. Rood

repeatedly tried to pull away from Tiburzio. He shouted "get

your paws off me" more than once.

After removing Huffman and Rood from the meeting,

Tiburzio, by that time joined by Police defendants Bailey and

Smith, arrested Rood and Huffman. The Police Defendants

charged both Rood and Huffman with disrupting a lawful

meeting, and charged Rood with an additional charge of

resisting arrest.’ There is absolutely no evidence from which a

* Rood had not signed up to speak at the October 24, 1988

Board meeting.

* To the extent it may have been unclear in the Court's previous

opinion, the Court finds that as a matter of law probable cause existed

for charging Rood with resisting arrest. This finding is based upon the

competent evidence contained in the record, including that portion of

Rood's conduct recorded on the jointly submitted videotape of the

October 25, 1988 meeting.

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reasonable trier of fact could infer that any of the Board

Defendants planned or directed the arrest of Huffman or

Rood, or the filing of charges against them in connection with

the October 24, 1988 Board meeting.

The meeting continued after Tiburzio led Rood and

Huffman away. After the last speaker finished his comments,

defendant Miller stated that the public comment portion of

the meeting was over. Plaintiffs Hansen and L. Waggoner

then tried to address the Board. Plaintiff Waggoner had not

completed a sign-up sheet as required by the Board's policy.

Miller ruled Hansen and L. Waggoner out of order.

Waggoner responded by acknowledging that she was out of

order. Police Defendant Tiburzio eventually approached

Hansen and Waggoner and asked them to leave. They

complied and left without incident

Once outside the meeting, the Police Defendants

apparently prevented number of the plaintiffs to reentering.°

In June 1989 a jury found plaintiffs Huffman and

Rood not guilty on all charges stemming from the October

24, 1988 Board meeting

© To the extent it may not have been clear in the previous

opinion, the Court finds that given the disruptive behavior of Rood.

Huffman, Hansen and Waggoner. a reasonable officer in the

circumstances would not believe that his actions violated plaintiffs’

clearly established rights.

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D. The Street Protest of

October 29, 1988

Plaintiffs argue that the Board Defendants were

somehow responsible for or involved in the actions of Police

Defendant Ross on October 29, 1988. On that day, plaintiffs

Carl Huffman and Jerry Bresee were demonstrating against

the tax levy at the corner of Schrock Road and State Street.

Ross approached the two in responding to a dispatch. The

dispatch indicated that several individuals were creating a

disturbance at that location.

The Court finds that there is absclutely no evidence

from which any rational trier of fact could infer a connection

between any of the Board Defendants and the conduct of

Ross on October 29, 1988.

I]

The procedure for granting summary judgment is

found in Fed. R. Civ. P. 56(c), which provides:

The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to

interrogatories and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter

of law.

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The evidence must be viewed in the light most favorable to

the nonmoving party. Adickes v. Kress & Co., 398 U.S. 144

(1970). Summary judgment will not lie if the dispute about a

material fact is genuine; "that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Summary judgment is appropriate, however, if the

opposing party fails to make a showing sufficient to establish

the existence of an element essential to that party's case and

on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also

Matsushita Electric industrial Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574 (1986).

The Sixth Circuit Court of Appeals has recognized

that Liberty Lobby, Celotex and Matsushita have effected "a

decided change in summary judgment practice," ushering in a

"new era" in summary judgments. Street v. JC. Bradford &

Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in

Street identified a number of important principles applicable

in new era summary judgment practice. For example,

complex cases and cases involving state of mind issues are

not necessarily inappropriate for summary judgment. id. at

1479. in addition, in responding to a summary judgment

motion, the nonmoving party "cannot rely on the hope that

the trier of fact will disbelieve the movant's denial of a

disputed fact, but must 'present affirmative evidence in order

to defeat a properly supported motion for summary

judgment." Id. (quoting Liberty Lobby, 477 U.S. at 257).

The nonmoving party must adduce more than a scintilla of

evidence to overcome the summary judgment motion. id. it is

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not sufficient for the nonmoving party to merely "show that

there is some metaphysical doubt as to the material facts.’

Id. (quoting Matsushita, 475 U.S. at 586). Moreover,

"(t]he trial court no longer has a duty to search the entire

record to establish that it is bereft of a genuine issue of

material fact." id. That is, the nonmoving party has an

affirmative duty to direct the court's attention to those

specific portions of the record upon which it seeks to rely to

create a genuine issue of material fact.

I].

A.

The Board Defendants first argue that they are

entitled to summary judgment on plaintiffs’ claim of "civil

conspiracy." They assert that plaintiffs have not pleaded such

a claim with requisite particularity in the complaint, and that

there is, in any event, no evidence to support such a claim.

The Court agrees that the complaint does not fairly

plead a conspiracy claim. More importantly, however,

plaintiffs have adduced nothing more than unsupported

innuendos and conclusory allegations with respect to their

conspiracy claim. The Police Defendants are entitled to

summary judgment in connection with plaintiffs’ claim of civil

conspiracy.

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The Board Defendants next argue that they are

entitled to summary judgment with respect to the claims

arising out of the events of April 27 and 28, 1988. As the

Board Defendants correctly point out, even according to

plaintiff McIntyre's account of the incident, Board Defendants

Husarik and Hayfield did not threaten to arrest or prosecute

McIntyre. Rather, they allegedly told her they were going to

call the police. plaintiffs do not dispute that McIntyre did not

stop handing out leaflets after the alleged threat, but

continued to remain on the school property passing out her

materials as long as she desired. There is no evidence that the

incidents "chilled" her speech in any way.’ It is not disputed

the police were never called to the scene on either occasion.

The alleged "grabbing" of pamphlets likewise did not

seem to interfere with MclIntyre's activities. it apparently did

not cause her to run out of pamphlets. Furthermore,

McIntyre alleges that the pamphlets were grabbed not from

her, but from her son's girlfriend. MclIntyre's son's girlfriend

is not a plaintiff in this action.

Lastly, although perhaps not dispositive of this issue,

it is worth noting that the Ohio Elections Commission

ultimately ruled that MclIntyre's leaflets did, in fact, violate

the law. Under these circumstances, the Court concludes

that plaintiffs have failed to come forward with sufficient

evidence to establish any constitutional violation in

connection with the events of April 27 and 28, 1988. The

” Indeed, the undisputed evidence demonstrates that McIntyre's

political activities have remained extensive.

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Board defendants are therefore entitled to summary judgment

on all of plaintiffs' claims arising from these incidents.

C.

The Board Defendants next argue that they are

entitled to summary judgment with respect to plaintiffs’ claims

that the Police Defendants barred them from reentering the

meeting after the arrest of Huffman and Rood. The Court

agrees that plaintiffs have failed to adduce any competent

evidence linking the Board Defendants with the Police

Defendants’ decision to prevent some of the plaintiffs from

reentering the meeting. Defendants are therefore entitled to

summary judgment in connection with these claims.

D.

The Board Defendants also contend that summary

judgment should be granted in their favor on claims arising

from the October 29, 1988 street protest. The Court finds

that there is no evidence to link the Board Defendants with

this incident. They are therefore entitled to summary

judgment with respect to plaintiffs’ claims arising from this

incident.

E.

The Board Defendants further assert that as a matter

of law, the Board's public participation policy was a

constitutionally valid time, place and manner regulation. The

Court finds that there is no evidence that the policy was

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discriminatorily applied. indeed, the undisputed evidence

shows that the Board was careful to give equal time to pro-

and anti-levy forces during the public participation period. it

is also worth noting that the Board gave many of plaintiffs

ample Opportunity to speak at other Board meetings. There

is no evidence that the Board Defendants prevented plaintiffs

from utilizing other avenues of expression.*

It cannot seriously be argued that the policy did not

serve a compelling governmental interest in preserving order

at the Board meetings. Even if the Court were to conclude

that the policy was flawed in some respect,’ it would

nevertheless find that there is no evidence that any such flaw

was the reason plaintiffs were prevented from speaking at the

October 24, 1988 meeting. In particular, the Court finds

that as a matter of law, the forty-five minute time limit and

the limit of five minutes per person were constitutionally valid

regulations. The Court also fails to detect any per se

constitutional infirmity with Miller's decision to give

preference to people who had not yet spoken. Plaintiffs have

not introduced any evidence that Miller did not choose people

who had not yet addressed the Board. For all of these

* The plaintiffs stress the importance of the October 24, 1988

Board meeting, pointing out that it was the last meeting before the

November election, and that it was televised. This is undercut

somewhat by plaintiffs’ failure to allege that they were unable to

themselves secure, during this period, access to air time on the same

channel that broadcast the meetings.

"It appears that the policy required prospective speakers to

provide a brief outline of their comments.

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reasons, the Board Defendants are entitled to summary

judgment on this issue.

F.

The Board Defendants also contend that they are

entitled to summary judgment on plaintiffs’ false arrest claims.

Specifically, the Board Defendants maintain that there is no

evidence to support plaintiffs’ allegation that the Board was

somehow involved with or responsible for Pdlice Defendant

Tiburzio's decision to arrest plaintiffs Huffman and Rood.

Plaintiffs rely heavily on a hand motion or "signal"

Husarik apparently gave Tiburzio. This signal for help,

however, falls far short of evidence that the arrests were

prearranged. Plaintiffs have failed to adduce any competent

evidence that any of the Board Defendants were either

involved in or responsible for Tiburzio's decision to arrest

Huffman and Rood. The Board Defendants are therefore

entitled to summary judgment on these claims.

G.

The Board Defendants further argue that they should

be granted summary judgment on _ plaintiffs’ malicious

prosecution claims relating to the charge filed against Rood in

connection with the September 12, 1988 meeting. The Board

Defendants maintain that Miller relied upon the advice of

counsel in bringing the charge of disrupting a lawful meeting,

and that there was, in any event, probable cause for such a

charge.

The Court has viewed the jointly submitted videotape

of the September 12, 1988 Board meeting. The Court finds

that there was, as a matter of law, probable cause for the

filing of a charge against Rood for disrupting a lawful

meeting. See O.R.C. §2917.12.

Ohio courts recognize “advice of counsel" as a

defense to claims of malicious prosecution. See Bacon v.

Patera, 772 F.2d 259, 265 (6th Cir. 1985) (applying Ohio

law); Donohue v. Burd, 722 F.Supp. 1507, 1520 (S.D.

Ohio 1989) (same); Killilea v. Sears, Roebuck & Co., 27

Ohio App. 3d 163, 499 N.E.2d 1291 (1985).

Advice of a lawyer is a complete defense

to an action for malicious prosecution if the

defendant made a full, fair and complete

disclosure to a lawyer of all the material facts of

which the defendant had knowledge, necessary

to obtain accurate legal advice, and tending to

prove or disprove the criminal charge, and if the

criminal case was filed thereafter in reliance and

in good faith on the advice of that lawyer.

Donohue, 722 F.Supp. at 1520.

The Court further finds that the undisputed

evidence conclusively establishes that the charge was filed

with the advice of counsel after a full, fair and complete

disclosure. For the above reasons, the Board Defendants

are entitled to summary judgment on plaintiffs’ malicious

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prosecution claims arising from the charge filed against Rood

for disrupting the September 12, 1988 Board meeting.

H.

The Board Defendants next argue that they are

entitled to summary judgment on_ plaintiffs' malicious

prosecution claim arising out of the charges filed in

connection with the October 24, 1988 Board meeting. These

charges were filed by the Police Defendants.

The Court finds that plaintiffs have failed to adduce

any competent evidence from which a reasonable trier of fact

could infer that any of the Board Defendants either directed

Or were otherwise involved in the filing of the criminal

charges against Rood or Huffman stemming from the October

24, 1988 Board meeting. Moreover, the Court has already

found that probable cause existed for the filing of these

charges. The Board defendants are therefore entitled to

summary judgment on these claims.

The Board Defendants also maintain that they are

entitled to immunity under O.R.C. §§2744.03(A)(1),(2)

and (3)'", and 2744.03 (A) (6)''. The Court finds that the

That section provides in relevant part:

(A) Ina civil action brought against a political subdivision or

an employee of a political subdivision to recover damages for injury,

death, or loss to persons or property allegedly caused by any act or

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omission in connection with a governmental or proprietary function, the

following defenses may be asserted to establish non-liability:

(1) The political subdivision is immune from liability if the

employee involved was engaged in the performance of a judicial,

quasi-judicial, prosecutorial, legislative, or quasi-legislative function.

(2) The political subdivision is immune from liability if the

conduct of the employee involved, other than negligent conduct, that

gave rise to the claim was required by law or authorized by law, or if the

conduct was necessary or essential to the exercise of powers of the

political subdivision of the employee.

(3) The political subdivision is immune from liability if the

action or failure to act by the employee involved that gave rise to the

claim of liability was within the discretion of the employee with respect

to policy-making, planning, or enforcement powers by virtue of the

office or position of the employee.

'l hat section states in relevant part:

In a civil action brought against a political subdivision or an

employee of a political subdivision to recover damages for injury, death,

or loss to persons or property allegedly caused by any act or omission in

connection with a governmental or proprietary function, the

following defenses or immunities may be asserted to establish

nonliability:

(6) in addition to any immunity or defense referred to in

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

division, the employee is immune from liability unless one of the

following applies:

(a) His acts or omissions were manifestly outside the

scope of his employment or official responsibility,

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\

complained-of conduct clearly falls within the purview of

O.R.C. §2744.03.

Furthermore, plaintiffs have failed to adduce any

competent evidence to controvert the Board Defendants’

assertions that they did not act recklessly, in bad faith, or with

malice. The Court finds that there is no evidence in the

record from which a rational trier of fact could infer that any

of the Board defendants acted with this level of culpability.

The Board Defendants are therefore entitled to the immunity

afforded by O.R.C. §§2744.03(A) (1), (2) and (3), and

2744.03(A)(6) as a matter of law. immunity under these

sections applies only to plaintiffs' state law claims.’

The plaintiffs concede that to the extent an underlying

claim does not exist, a party cannot recover damages ‘for

emotional distress. The Board Defendants are entitled to

summary judgment on plaintiffs’ claims of emotional

distress because plaintiffs’ underlying claims are subject -to

dismissal on other grounds.

(b) His acts or omissions were with malicious purpose, in

bad faith, or in a wanton or reckless manner,

(c) Liability is expressly imposed upon the employee by a

section of the Revised Code.

'? The Board Defendants concede that immunity under O.R.C.

§ 2744.03(A) (6) does not, by definition, apply to plaintiffs’ claims of

malicious prosecution.

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K.

Plaintiffs also concede that they may not recover

punitive damages against any of the Board Defendants in

their official capacities. The Board Defendants are therefore

entitled to summary judgment to the extent the complaint

asserts such a claim.

L.

The Board Defendants next argue that defendants

Miller, Hayfield and TUHusarik are entitled to qualified

immunity. Plaintiffs have sued these defendants in their

individual capacities.

The perimeters of the qualified immunity defense as

it currently exists were established in Harlow v. Fitzgerald,

457 U.S. 800 (1982). Under Harlow, government officials

are immune from liability for civil damages insofar as their

conduct does not violate clearly established constitutional or

statutory rights of which a reasonable person would have

known. 457 U.S. at 818. Whether an official will prevail in

his qualified immunity defense depends upon the objective

reasonableness of his conduct as measured by reference to

clearly established law. Id. The qualified immunity

standard is purely objective, and the official's subjective state

of mind is irrelevant. Davis v. Scherer, 468 U.S. 183 (1984).

Whether the law at the time of the alleged action was clearly

established in favor of the plaintiff and whether the defendant

is protected by qualified immunity are questions of law for the

A-2]

court to decide. Ohio Civil Service Employees Assoc. v.

Seiter, 858 F.2d 1171 (6th Cir. 1988)

——— a

"[W]hether an official protected by qualified immunity

may be personally liable for an allegedly unlawful official

action generally turns on the ‘objective Jegal reasonableness’

of the action, ... assessed at the time it was taken."

Anderson v. Creighton, 483 U.S. 635, 639 (1986) (quoting

Harlow v. Fitzgerald, 457 U.S. at 819, 818)

The Operation of this standard, however, depends

substantially upon the level of generality at which the relevant

| ljegal rule" is to be identified. For example, the right to due

process of law is quite clearly established by the Due

Process Clause, and thus there is a sense in which any action

that violates that Clause (no matter how unclear it may be

that the particular action is a violation) violates a clearly

established right. Much the same could be said of any other

constitutional or statutory violation. But if the test of

"clearly established law" were to be applied at this level of

generality, it would bear no relationship to the "objective

legal reasonableness" that is the touchstone of Harlow.

Plaintiffs would be able to convert the rule of qualified

immunity that our cases plainly establish into a rule of

virtually unqualified liability simply by alleging violation of

extremely abstract rights. Harlow would be transformed

from a guarantee of immunity into a rule of pleading. Such

an approach, in sum, would destroy the balance that our

cases strike between the interests in vindication of citizens’

constitutional rights and in public officials’ effective

performance of their duties, by making it impossible for

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Be Rcd) MY ibe eve lca a

officials [to] anticipate when their conduct may give rise to

liability for damages. . . . It should not be surprising,

therefore, that our cases establish that the right the official is

alleged to have violated must have been "clearly established"

in a more particularized, and hence a more relevant, sense:

The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in

question has previously been held unlawful, . . . but it is to

say that in light of pre-existing law the unlawfulness must be

apparent.

An nV. Crei n, 483 U.S. at 639-40 (cites,

quotes and footnote omitted). Thus, "the proper inquiry is

not whether the claimed right existed in the abstract, but

whether a reasonable official would have known that the

challenged conduct violated that right." Gossman v. Allen,

950 F.2d 338, 341 (6th Cir. 1991).

The Court finds that in the circumstances presented in

this case, reasonable officials in the positions of Miller,

Hayfield and Husarik would not believe that there actions

violated any clearly established rights the plaintiffs may have

had. it is not sufficient that plaintiffs First and Fourth

Amendment rights may have existed in the abstract. The

Court holds that Miller, Hayfield and Husarik are entitled to

qualified immunity as a matter of law.

M.

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The Board Defendants also assert that defendant

Miller is entitled to absolute legislative immunity for claims

pertaining to the manner in which he conducted the subject

Board meetings. The Board Defendants admit, however, that

the U.S. Supreme Court has never expressly afforded this

immunity in this kind of case. Because Miller is entitled to

summary judgment on other grounds, the Court declines to

reach this issue. If it were to reach the issue, however, this

Court would be inclined to extend immunity to the

circumstances presented in this case. See Collison v. Gott,

895 F.2d 994, 1005-10 (4th Cir. 1990) (concurring

opinion by Wilkinson, J.).

N.

The Board Defendants next argue that the defendant

Board is entitled to summary judgment because plaintiffs have

failed to state a claim against the Board under Monell v.

Dept. of Social Services, 436 U.S. 658 (1978). The Board is

entitled to summary judgment on other grounds, so it is not

necessary to reach this issue. The Court would note,

however, that Miller was arguably acting pursuant to a Board

policy, namely the public participation policy. On the other

hand, there is no evidence that the conduct of Hayfield and

Husarik was pursuant to any custom or policy of the Board.

Lastly, the Board Defendants assert that defendants

Miller, Hayfield and Husarik are entitled to summary

judgment with respect to plaintiffs' claims for punitive

A-24

damages. The Court finds that plaintiffs have failed to

adduce competent evidence from which a rational trier of fact

could infer that defendants Miller, Hayfield or Husarik acted

with callous or reckless disregard for plaintiffs' rights. These

defendants are therefore entitled to summary judgment on

plaintiffs’ punitive damages claims.

IV.

Based on the foregoing, the Board Defendants’

motion for summary judgment (Doc. 45) is GRANTED. The

clerk shall enter a final judgment in favor of all defendants,

against plaintiffs, dismissing plaintiffs’ complaint with

prejudice. Costs shall be taxed against plaintiffs.

IT IS SO ORDERED.

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

A-25

Nos. 93-323 1/3303

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MAUREEN HANSEN, et al., )

) ON APPEAL FROM

) THE UNITED

Plaintiffs-Appellants, ) STATES DISTRICT

) COURT FOR THE

) SOUTHERN

) DISTRICT OF OHIO

Vv. )

)

)

WESTERVILLE CITY SCHOOL )

DISTRICT, BOARD OF )

EDUCATION, )

)

Defendants-Appellees. )

BEFORE: NELSON, SUHRHEINRICH and BATCH-

ELDER, Circuit Judges.

PER CURIAM. This is a civil rights case, based in

part upon alleged First Amendment violations, in which the

plaintiffs appeal from a summary judgment in favor of the

defendants. Upon de nova review, we conclude that summary

judgment was not appropriate with respect to two of the

plaintiffs' claims -- one arising from the alleged exclusion of

opponents of a school tax levy from a public meeting of the

B-]

defendant school board, and the other based on the alleged

confiscation of literature opposing the levy. We shall affirm

the judgment of the district court as to the plaintiffs’

remaining claims.

The plaintiffs, residents of Westerville, Ohio, were

members of an organization called Citizens Against Tax

Waste ("CATW"). This organization opposed a series of tax

levies proposed by the Westerville City School District Board

of Education.

On April 27, 1988, the board held an informational

meeting at a local school. When they arrived at the meeting,

defendants Ernest Husarik, superintendent of schools, and J.

Michael Hayfield, assistant superintendent, encountered

plaintiff Margaret McIntyre. With help from her teenage son

and his girlfriend, Mrs. McIntyre was distributing flyers

opposing the latest levy proposal. The distribution took place

in front of a school building. Dr. Husarik and Mr. Hayfield

allegedly "snatched" some flyers from one of the teenagers

and informed Mrs. McIntyre that the flyers violated Ohio's

election laws.’ They also told Mrs. McIntyre that it was

' The flyer was later held to be in violation of Ohio Rev. Code

§3599.09 because it did not include the name and address of the

organization or person responsible for it. In 1993 the Ohio Supreme

Court ruled that this statute did not violate Mrs. MclIntyre's free speech

rights. McIntyre V. Ohio Elections Comm'n, 67 Ohio St.3d 391, 618

N.E.2d 152 (1993). The United States Supreme Court has since granted

certiorari in the case. 114 5. Ct. 1047, 62 U.S.L.W. 3550 (Feb. 22,

1994).

B-2

illegal to distribute her materials on school property and that

she must leave the premises. The school officials are said to

have threatened to call the police, but did not do so. Mrs.

McIntyre continued to distribute the materials, and she left

when the board meeting began. A similar incident took place

a day later.

At a public meeting of the school board held on

September 12, 1988, Dr. Donald Miller, the then president of

the board, announced that 45 minutes would be allotted for

public participation. Each speaker, he said, would be given

five minutes. (Although the board had not previously limited

public comment at its meetings, controversy over the

proposed levies had recently led to unusually high attendance;

the August meeting had evidently run until after midnight,

and as many as 60 people had spoken at that meeting.) Only

five members of the public were initially recognized to speak

on September 12, but because each of them spoke for more

than five minutes, they consumed all the allotted time. At the

end of the 45 minutes Dr. Miller announced the conclusion of

the public participation period.

Following a recess, Dr. Miller stated that the board

would move to the next item on the agenda. At this point

Gordon Rood, one of the plaintiffs, insisted that additional

spectators be permitted to address the board. (Mr. Rood

himself had not asked to be heard during the public

participation period.) Dr. Miller ruled Mr. Rood out of order,

but Rood continued to pace about the podium and declaim

loudly, insisting that "we'll talk until we're heard."

B-3

After a temporary adjournment, Dr. Miller announced

that the board would allow an additional 15 minutes for

public comment at the end of the meeting. Mr. Rood again

interrupted and announced that the meeting would not

continue until the people who wished to speak were

permitted to do so.

At this point plaintiff Maureen Hansen approached the

podium and began to speak without having been recognized.

Although ruled out of order, she continued to talk. The board

allowed her to complete her remarks. Following Ms.

Hansen's comments, Mr. Rood again objected to the board's

proceeding to the next agenda item. Westerville City Police

Officer Richard Tiburzio, one of the defendants, then ejected

Mr. Rood from the meeting for a time.

An additional opportunity for public participation was

provided at the conclusion of the meeting, with five more

speakers, including Mr. Rood, addressing the board. Of the

11 spectators who were heard that night, at least five were

members of CATW.

Several months later, City of Columbus Chief

Prosecutor James Fais watched a videotape of the September

12 meeting and concluded that there was a basis for charging

Gordon Rood with disturbing a meeting in violation of Ohio

Rev. Code §2917.12. Based on this conclusion, Dr. Miller

filed such a charge in a state court. Mr. Rood entered a plea

of no contest to a reduced charge of disorderly conduct, but

the state court ultimately acquitted him, based primarily on its

B-4

review of the videotape. Mr. Rood now contends that Dr.

Miller's filing of the charge constituted malicious prosecution.

Prior to a public board meeting scheduled for October

24, 1988, the board made arrangements to have Officer

Tiburzio present. According to Officer Tiburzio, Dr. Husarik

indicated that he wanted to make sure that there was no

breach of the peace and that there were no problems between

pro-levy and anti-levy people. The plaintiffs allege that

Husarik and Tiburzio agreed in advance on a hand signal that

would indicate that Tiburzio was to remove somebody from

the meeting. Officer Tiburzio denies that they pre-arranged

any hand signals, and there is no evidence that they did so.

According to Mr. Rood, Dr. Miller phoned him prior

to the October 24 meeting and indicated that "he would allow

all persons who wanted to speak the opportunity to address

the Board on October 24, 1988." Dr. Miller has neither

confirmed nor denied that he gave Mr. Rood this assurance.

The board had instituted a new public participation

policy under which the floor would be open for 45 minutes of

public comment and those who wished to speak would be

required to sign up in advance. The plaintiffs knew of this

procedure and understood that compliance was necessary in

order to be recognized to speak. Except for Jerry Bresee, all

of the plaintiffs attended the October 24 meeting; most of

them were wearing CATW buttons.

Because of the large number of people who had

signed up to speak, Board President Miller announced at the

B-5

beginning of the public comment period that there was

insufficient time to accommodate everyone. Preference, he

said, would be given to those who had not spoken at a

previous board meeting.

After 47 minutes of public comment, during which

time 11 people addressed the board, Dr. Miller announced

that time would permit only two more speakers. He

identified Del Waggoner, a CATW member and husband of

one of the plaintiffs, and Jack Sandman, a levy supporter, as

the two who would be recognized. Upon the conclusion of

Mr. Waggoner's remarks, but before Mr. Sandman had

spoken, plaintiff Carl "Pete" Huffman took the podium to ask

a question. Mr. Huffman requested two minutes, and

although ruled out of order, he refused to yield. Dr. Husarik

motioned for Officer Tiburzio, who radioed for backup from

the police department. Officer Tiburzio then approached Mr.

Huffman, escorted him out, and placed him under arrest for

disturbing a lawful meeting. A jury subsequently acquitted

Mr. Huffman.

Immediately following Mr. Huffman's departure, Mr.

Rood, who had not signed up to speak, took the podium and

refused to yield. Officer Tiburzio placed his hand on Rood's

arm to guide him from the meeting. Mr. Rood pulled away

from Officer Tiburzio and yelled "Get your paws off me" as

the two left the room. In the foyer outside the auditorium

Mr. Rood struggled with Officer Tiburzio and several other

police officers, including Randall Bailey and Ted Smith.

Officers Bailey and Smith have both been named as

defendants. Mr. Rood was arrested for disturbing a lawful

B-6

TTR TY

meeting and for resisting arrest. He too was subsequently

acquitted by a jury.

Several of the plaintiffs had followed Huffman and

Rood to the foyer. After the arrests were made, they returned

to the meeting as Jack Sandman was completing his

statement. Plaintiff Maureen Hansen then approached the

podium and asked that everyone who had signed up to speak

be permitted to do so at the end of the meeting. She was

ruled out of order, and Officer Tiburzio escorted her from the

room. As Ms. Hansen left the auditorium, several of the.

plaintiffs left the meeting for a second time to observe the

activities in the foyer.

The group then reentered the auditorium and plaintiff

Lou Waggoner took the podium. She was ruled out of order,

and three police officers escorted her to the foyer, followed

again by several of the plaintiffs. The plaintiffs allege that

Officer Tiburzio asked those who were in the foyer, including

several who had not spoken at all during the meeting, to leave

the building. He allegedly threatened them with arrest if they

reentered the meeting. The plaintiffs thereupon left the

building.

The final episode at issue in this action occurred on

October 29, 1988, when plaintiffs Carl Huffman and Jerry

Bresee carried placards at a busy intersection in Westerville

protesting Huffman's treatment at the hands of the police and

the school board. They allege that while they were carrying

their signs, defendant Police Officer Don Ross and another

unidentified officer approached them in a threatening manner

B-7

and demanded that they identify themselves. They were not

arrested.

In July of 1989, 12 plaintiffs filed this action in the

United States District Court for the Southern District of

Ohio. Named as defendants were the school board and its

members; Officers Tiburzio, Smith, Bailey, and Ross; and the

City of Westerville. The complaint alleged violations by all

defendants of 42 U.S.C. §1983, based on alleged violations of

the plaintiffs' rights under the First, Fourth, and Fourteenth

Amendments of the United States Constitution; false arrest

and malicious prosecution by the board and Officer Tiburzio

with regard to Rood and Huffman; assault and battery by

Officers Tiburzio, Smith, and Bailey against Mr. Rood; and

assault and battery by Officer Ross against Mr. Huffman and

Mr. Bresee.

On February 19, 1993, the district court entered

summary judgment in favor of all defendants as to all counts.

Eleven of the plaintiffs have appealed the district court's

order.

To prevail on a motion for summary judgment, the

moving party must "show that there is no genuine issue as to

any material fact and that the . . . party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary

judgment is appropriate against a party who, having been

? Plaintiff Lewis Hinkle did not appeal. Plaintiff Mcintyre died

during the pendency of the appeal, and her husband, Joseph McIntyre,

has been substituted for her as an appellant.

B-8

called upon to do so, fails to come forward with evidence

tending to establish a disputed element of that party's case.

See Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986).

This court reviews summary judgment proceedings de nova,

making all reasonable inferences in favor of the nonmoving

party. EEOC v. Univ. of Detroit, 904 F.2d 331, 334 (6th Cir.

1990).

B

We turn first to the claims against the police officers

and the City of Westerville. The officers are charged with

having committed the state-law torts of assault and battery,

false arrest, and malicious prosecution, in addition to having

violated the plaintiffs' federal constitutional rights under the

First and Fourth Amendments, as made applicable to the

states by the Fourteenth Amendment.

1. State Claims

The only claim involving Officer Ross is an alleged

assault and battery against plaintiffs Jerry Bresee and Carl

Huffman. Bresee and Huffman allege that Officer Ross

approached them in a "threatening" manner and demanded to

know their names. They say he held his nightstick in his hand,

but they do not assert that he touched them, made a motion

as if to touch them, or threatened to touch them.

Under Ohio law, tortious assault is a willful threat or

attempt to harm which reasonably places another in fear of

harmful contact. The threat or attempt must be coupled with

B-9

a definitive act by one with the apparent ability to do the

harm. Smith v. John Deere Co., 83 Ohio App.3d 398, 406,

614 N.E.2d 1148, 1154 (Franklin Co. 1993).

The plaintiffs have identified neither all actual threat

reasonably placing them in fear of harm nor an accompanying

definitive act. No reasonable trier of fact could find that the

holding of a nightstick constituted assault. In the absence of

any evidence that Officer Ross acted maliciously, recklessly,

or in bad faith, moreover, he is immune from liability in any

event. See Ohio Rev. Code § 2744.03(A)(6). The district

court properly granted summary judgment in favor of Officer

Ross.

We next consider a claim by Gordon Rood that his

treatment at the hands of Officers Tiburzio, Bailey, and Smith

after the meeting of October 24 constituted assault and

battery. Mr. Rood stated that the officers were "very rough

with [him]" and that he was pushed into a wall and forced

down to his knees. Witnesses state that they saw the police

"jostle," "attack," or "shove" him. He claimed he suffered

"great pain" and that be still suffers pain from the attack; the

doctor who examined him concluded that he had pulled some

muscles.

The police do not deny using force to arrest Mr.

Rood, but they maintain that it was necessary to effectuate

the arrest. They contend that Mr. Rood was "struggling" and

"out of control" and that they had to use force to restrain

him. Mr. Rood admits that he pulled away from Officer

Tiburzio, that he yelled "get your paws off me," and that he

B-10

"struggled" with the police, but he insists that he never tried

to escape or harm them.

Mr. Rood has not offered any evidence to show that

the officers acted maliciously, recklessly, or in bad faith. On

the contrary, the evidence suggests that the officers, faced

with an admittedly “struggling” arrestee, responded in an

entirely proper manner. Although there is a dispute as to how

much Mr. Rood struggled and how forceful the police were,

the undisputed facts compel the conclusion that the police are

immune from liability by reason of O.R.C. §2744.03(A)(6).

Summary judgment was proper as to this claim.

Plaintiff Raymond Brown was knocked down by the

police as they were pursuing Mr. Rood, and plaintiff Margie

Bean claims that one of the officers stepped on her foot.

Neither Brown nor Bean claims that the police acted

intentionally, and there is no evidence of any actionable

misconduct in this respect.

Finally, Gordon Rood and Carl Huffman assert claims

of false arrest and malicious prosecution against Officer

Tiburzio. These claims stem from the events at the October

24 school board meeting, when Tiburzio charged Mr. Rood

with resisting arrest and charged both Mr. Rood and Mr.

Huffman with disturbing a lawful meeting in violation of Ohio

Rev. Code §2917.12. (Mr. Rood was also charged with --

and later acquitted of -- disturbing the September 12

meeting, but Officer Tiburzio dic not arrest Mr. Rood on

September 12 and was not involved in any way with the filing

of that charge.)

B-11

The elements of malicious prosecution are (1) malice

in instituting or continuing the prosecution, (2) lack of

probable cause, and (3) termination of the prosecution in

favor of the accused. 7russell v. General Motor Corp., 53

Ohio St. 3d 142, 144, 559 N.E. 2d 732, 735 (1990). To

maintain an action for false arrest, a plaintiff must show that

he was unlawfully detained. Harvey v. Horn, 33 Ohio App.3d

24, 27, 514 N.E.2d 452, 454 (Franklin Co. 1986). In

determining whether an officer had probable cause to make

an arrest and file criminal charges, his conduct is to be

analyzed ill light of the facts or circumstances known to him

at the time. McFinley V. Bethesda Oak Hasp., 79 Ohio

App.3d 613, 616-17, 607 N.E.2d 936, 939 (Hamilton Co.

1992). The existence of a reasonable basis to believe that a

crime has been committed is sufficient to defeat claims of

malicious prosecution and false arrest. See id. at 620, 607

N.E.2d at 941. See also State v. McCrone, 63 Ohio App.3d

831, 835-36, 580 N.E.2d 468, 471 (Lorain Co. 1989);

Melanowski v. Judy, 102 Ohio St. 153, 156, 131 NE. 360,

361(1921). The issue is not whether a crime was actually

committed, but whether a reasonable basis existed for

believing the accused guilty of the crime. McFinley, 79 Ohio

App.3d at 617, 607 N.E. 2d at 939.

In the case at bar it is undisputed that Mr. Rood and

Mr. Huffman both held forth during the October 24 meeting

after having been ruled out of order repeatedly, and their

conduct unquestionably "interfere[d] with the due conduct of

[the] meeting.” See Ohio Rev. Code §2917.12. Our review

of the videotape of the meeting persuades us that the

B-12

existence of probable cause to arrest and prosecute both men

for disturbing a meeting is beyond dispute.

We also conclude as a matter of law that probable

cause existed to arrest and prosecute Mr. Rood for resisting

arrest. He admits that he pulled his arm away from Officer

Tiburzio, told him to "get your paws off me," and struggled

with the arresting officers. Summary judgment was proper as

to the claims of false arrest and malicious prosecution against

Officer Tiburzio.

r 42 U.S.C. § 1983

We next turn to the plaintiffs’ constitutional claims

against the police officers and the city, raised under 42 U.S.C.

§ 1983. First, Gordon Rood contends that Officers Tiburzio,

Bailey, and Smith used excessive force in arresting him on

October 24, thereby violating his Fourth Amendment right to

be free of unreasonable seizures. The district court found for

the police officers on the ground of qualified immunity. We

agree that the officers were entitled to summary judgment as

to this claim, but we do not reach the qualified immunity

issue, having concluded as a matter of law that the plaintiffs

failed to establish that the officers’ conduct violated their

constitutional rights.

Claims that police officers used excessive force in the

course of an arrest are analyzed under a 1 l reasonableness"

standard. Graham v. Connor, 490 U.S. 386, 395 (1 989).

Assessment of the reasonableness of the force used is an

objective inquiry that depends on the "facts and

B-13

circumstances of each particular case, including the severity

of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officers or others, and

whether he [was] actively resisting arrest." /d. at 396.

Taking the evidence in the light most favorable to Mr.

Rood, we assume that he did not try to escape policy

custody; certainly his acquittal on a charge of resisting arrest

would support that finding. He admits, nevertheless, that he

pulled away from officers and "struggled" with them. Mr.

Rood claims that the officers pulled his arms up behind his

back and shoved him against a wall, causing him pain.

Although this degree of force may have been unnecessary in

hindsight, we conclude as a matter of law that it was not

unreasonable.

"The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight. . . . With

respect to a claim of excessive force, the same standard of

reasonableness at the moment applies: Not every push or.

shove, even if it may later seem unnecessary in the peace of a

judge's chambers,’ violates the Fourth Amendment. The

calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second

judgments -- in circumstances that are tense, uncertain, and

rapidly evolving -- about the amount of force that is

necessary in a particular situation. id. at 396-97 (citations

omitted).

B-14

No reasonable juror could find, tinder the

circumstances presented here, that an arresting officer acted

unreasonably by pulling an admittedly struggling suspect's

arms behind his back and pushing him against a wall. The

district court properly granted summary judgment to Officers

Tiburzio, Bailey, and Smith and the City of Westerville as to

this claim.

Next, eight of the plaintiffs -- Sue Bresee, Margie

Bean, Raymond Brown, Jack Keller, Margaret Mcintyre,

Maureen Hansen, Lou Waggoner, and Carolyn Ward --

maintain that after they left the October 24 meeting, Officer

Tiburzio prevented them from reentering and thereby violated

their First Amendment rights. They allege that Officer

Tiburzio identified them by their "CATW" buttons as people

who would not be allowed in the meeting.

The plaintiffs had a right to attend this public meeting

of the local school board. A school board meeting, when

opened to the public, is a limited public forum for discussion

‘of subjects relating to the operation of the schools. See

Madison Joint Sch. Dist. V. Wisconsin Employment

Relations Comm'n, 429 U.S. 167, 175 (1976). Although the

government may place limitations on the time, place and

manner of access to such forums, the restrictions must be con

lent neutral and narrowly tailored to serve a significant

governmental interest. See Perry Education Ass'n V. Perry

Local Educators’ Ass'n, 460 U.S. 37, 45-46 (1983).

> This is the only claim raised by seven of the plaintiffs.

B-15

[U]nder the .. . First Amendment . . . government

may not grant the use of a forum to people whose views it

finds acceptable, but deny use to those wishing to express less

favored or more controversial views ... . Selective

exclusions from a public forum may not be based on content

alone, and may not be justified by reference to content alone."

Police Dept. of Chicago V. Mosley, 408 U.S. 92, 96 (1972).

When a school board sits publicly to conduct public business

and to hear the views of citizens, it may not discriminate

among speakers on the basis of the content of their speech.

See Madison Joint Sch. Dist., 429 U.S. at 176.

In the instant case, it is clear that the school board had

opened the meeting to the public and had solicited public

comments at the meeting, albeit for a limited period of time.

If, as the plaintiffs allege, Officer Tiburzio excluded the

plaintiffs from the meeting solely because they wore buttons

indicating their association with Citizens Against Tax Waste,

his action would be an impermissible content-based

restriction on the plaintiffs’ nght to express themselves in a

public forum.

Although the time for oral expression had already

enacd when the exclusion allegedly occurred, the plaintiffs’

wearing of CATW buttons constituted a "silent, passive

expression of opinion." See Zinker v. Des Moines Indep.

Community Sch. Dist., 393 U.S. 503, 508 (1969). Such a

symbolic act is protected by the Free Speech Clause of the

First Amendment. See id. at 505. Notwithstanding the

expiration of the time for speeches by members of the public,

B-16

the plaintiffs had a right to attend and to wear CATW

buttons.

The district court dismissed this claim on the ground

of qualified immunity. Under the qualified immunity defense,

"government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Giving the plaintiffs the benefit of all reasonable inferences,

we must determine "whether an objectively“reasonable officer

could have believed [the defendant's conduct] to be lawful, in

light of the clearly established law and the information the. . .

officers possessed." Hall v. Shipley, 932 F.2d 1147,

1151(6th Cir. 1991) (quoting Anderson v. Creighton, 483

U.S. 635, 641(1987)).

It was well established in 1988, when the cause of

action arose, that members of the public had a right to attend

a public school board meeting. See Madison Joint Sch. Dist.,

429 U.S. at 176; Mosley, 408 U.S. at 96. A reasonable

police officer in the position of Officer Tiburzio would have

known that he could not exclude members of the public from

a school board meeting solely on the basis of their

viewpoints. Therefore, we conclude that summary judgment

should have been denied as to the claims against Officer

Tiburzio arising from his alleged exclusion of the plaintiffs

from the October 24 meeting .*

The district court acted properly in granting summary

judgment in favor of the City of Westerville as to this claim.

A municipality cannot be held liable for the acts of an

individual employee or official unless the individual acted

pursuant to an official policy of the defendant body. Monell

V. Dept. of Social Services, 436 U.S. 658, 691(1978). To

establish municipal liability for an injury resulting from a

municipal policy, moreover, the plaintiffs "'must identify the

policy, connect the policy to the city itself and show that the

particular injury was incurred because of the execution of that

policy."" Coogan v. City of Wixom, 820 F.2d 170, 176 (6th

Cir. 1987) (quoting Bennett V. City of Slidell, 728 F.2d 762,

767 (Sth Cir. 1984) (en banc), cert. denied, 472 U.S. 1016

(1985)). The plaintiffs have not produced any evidence

indicating that Officer Tiburzio's decision to exclude people

from the board meeting was part of a city policy of restricting

access to public meetings.

Finally, the plaintiffs claim that the police and the

school board conspired to prevent them from expressing their

views. An action for civil conspiracy may be brought under

42 U.S.C. §1983. Adickes v. S. H. Kress & Co., 398 U.S. 144

(1970).

* The plaintiffs have not alleged any facts indicating that the

school board was involved in a decision to exclude them from the

meeting. To the extent the complaint raises such a claim, summary

judgment in favor of the school board was proper.

B-18

"A civil conspiracy is an agreement

between two or more persons to injure another

by unlawful action. . . . All that must be shown is

that there was a single plan, that the alleged

coconspirator shared in the — general

conspiratorial objective, and that an overt act

was committed in furtherance of the conspiracy

that caused injury to the complainant." Hooks v.

Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985).

A complaint alleging a civil rights conspiracy must be

supported by specific facts showing the "existence and scope

of the alleged conspiracy." Slotnick v. Staviskey, 560 F.2d

31,33(1st Cir. 1977), cert. denied, 434 U.S. 1077 (1978).

Nothing in the record of the case at bar supports a claim that

the police conspired in any way to deprive the plaintiffs of

their constitutional rights. Summary judgment was proper as

to the police defendants and the City of Westerville on the

claim of civil conspiracy.

c.

We next consider the plaintiffs’ claims against the

school board members in their individual and official

capacities. An action against a government official in his

official capacity is an action against the governmental entity

he represents. See Kentucky V. Graham, 473 U.S. 159. 166

(1985). A municipality is a "person" subject to suit under 42

U.S.C. § 1983. Monell, 436 U.S. at 690. Ohio's local school

boards are treated as "municipalities" as far as amenability to

B-19

suit is concerned. See Mit. Healthy City Sch. Dist. Rd. of

Educ. v. Doyle, 429 U.S. 274, 280-81 (1977) (Ohio local

school board is effectively a municipality, not a state, for

Eleventh Amendment purposes).

As to Margaret MclIntyre's claim that Dr. Husarik and

Mr. Hayfield violated her First Amendment right to distribute

literature opposing the school levy, it is not alleged that the

acticns of Husarik and Hayfield on the evening of April 24

were part of a school board "policy" of discouraging the

distribution of campaign literature. See Coogan V. City of

Wixtom, 820 F.2d at 176. We therefore construe this

particular claim as one against Hayfield and Husarik in their

individual capacities only.

To state a claim under 42 U.S.C. § 1983, the plaintiff

must establish that (1) the defendants acted under color of

state law and (2) the officials' conduct deprived the plaintiffs

of a right secured by the Constitution or a federal statute.

West v. Atkins, 487 U.S. 42, 48 (1988). A public official acts

under color of state law when he has "exercised power

‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state

law." Id. at 49 (quoting United States v. Classic, 313 U.S.

299, 326 (1941)).

There is a genuine issue of material fact as to whether

Hayfield or Husarik acted under color of state law during

their confrontation with Mrs. Mcintyre. In this confrontation,

which apparently took ple-e on school property, Hayfield and

Husarik, who were public school officials, allegedly took

B-20

Mrs. MclIntyre's flyers, told her to leave the school property,

and threatened to call the police if she did not comply. A

reasonable juror could conclude that the men were

undertaking to act in an official capacity.

An issue of fact also remains whether the defendants’

conduct deprived Mrs. McIntyre of her First Amendment

right to free speech. Mrs. McIntyre sought to communicate

her views about a public matter. This kind of communication

"is entitled to the greatest constitutional protection." Glasson

V. City of Louisville, 518 F.2d 899, 904 (6th Cir.), cert.

denied, 423 U.S. 930 (1975). The government may not seize

presumptively protected expressive materials without a prior

determination that the speech is unlawful. See Fort Wayne

Books, Inc. v. Indiana, 489 U.S. 46, 66-67 (1989) (seizure of

books inappropriate prior to judicial determination of

obscenity).

The facts alleged in this case bear some similarity to

those in Glasson V. City of Louisville. In Glasson, police

officers seized a poster from Ms. Glasson because it was

critical of the President of the United States. We held that the

police officers’ actions deprived Ms. Gilasson of her First

Amendment right because they interfered with her expressive

activity on the basis of the content of her speech. Similarly,

Mrs. McIntyre alleges that the defendants’ conduct interfered

with the expression of her political views and that the

interference was motivated by the content of her speech.

A threat to call the police made for the purpose of

dissuading Mrs. McIntyre from expressing her views on the

B-21

levy could have had a chilling effect on the exercise of her

First Amendment rights. Where one is threatened with arrest

or prosecution for exercising his right to expression, thereby

chilling the exercise of that right, a constitutional violation

may occur even without an arrest or prosecution. See

NAACP V. Button, 371 U.S. 415, 433 (1963) ("The threat of

sanctions may deter [the exercise of First Amendment

freedoms] almost as potently as the actual application of

sanctions"); Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.

1994) (police officer violated plaintiff's First Amendment

rights by issuing citations and warnings with motive of

deterring plaintiff's expressive activity).

We note that in order to succeed at trial on such a

theory, Mrs. McIntyre will have to establish that her

expression was in fact deterred or chilled by the defendants’

conduct. "Allegations of a subjective ‘chill’ are not an

adequate substitute for a claim of specific present objective

harm or a threat of specific future harm Laird V. Tatum,

408 U.S. at 13. See also Macko v. Byron, 760 F.2d 95, 97

(6th Cir. 1985) (§1983 plaintiff must establish an actual

constitutional violation, not merely a threat of violation).

Moreover, she must establish that the defendants threatened

to call the police because of the content of her message and

not merely because they were concerned about a violation of

election laws. See Sloman v. Tadlock, 21 F.3d at 1469-70

(defendant's motive is relevant to ascertaining whether his

conduct violated First Amendment); Mozzochi v. Borden, 959

F.2d 1174, 1179 (2nd Cir. 1992) (same).

B-22

Dr. Husarik and Mr. Hayfield argue that to the extent

that their conduct may have violated Mrs. Mclntyre's

constitutional rights, they are protected by the doctrine of

qualified immunity. We disagree. Mrs. MclIntyre's right to

distribute political literature was clearly established at the

time of these events. We conclude that a reasonable school

official would have known that he could not interfere with a

citizen's campaign efforts against a tax levy by confiscating

her materials and threatening to call in the police.

Gordon Rood maintains that the action of Dr. Miller,

president of the school board, in filing charges of disrupting

the September 12 meeting constituted malicious prosecution.

But charges filed in good faith and in reliance on the advice

of a prosecuting attomey who is aware of the known material

facts cannot form the basis of a claim of malicious

prosecution. See

Donohoe v. Burd, 722 F. Supp. 1507, 1520 (S.D.

Ohio 1989), affd, 923 F.2d 854 (6th Cir. 1991). In the case

at bar Columbus chief prosecutor James Fais viewed the

videotape of the September 12 meeting, independently

concluded that there was probable cause to file charges

against Mr. Rood, and so advised Dr. Miller. Dr. Miller filed

the charge in reliance on this advice. Although Mr. Rood was

ultimately acquitted, the state court judge found it to be "a

borderline case" -- and the advice of the prosecutor would

‘provide a complete defense to the malicious prosecution

claim in any event.

B-23

The plaintiffs challenge the Board's policy of limiting

the number of speakers, limiting the duration of their

comments, and giving preference to new speakers. We

conclude that this policy was a permissible content-neutral

restriction on the time, manner, and place of the plaintiffs’

speech and did not violate the plaintiffs’ First Amendment

rights. Where regulation of speech is content neutral, is

narrowly tailored to serve a significant governmental interest,

and leaves open ample alternative avenues for

communication, it is constitutionally valid. Clark V.

Community for Creative Non-Violence, 468 U.S. 288, 293

(1984). In this case, the board's policy did not limit speech

based on its content. ll speakers during the public

participation period were required to comply with the policy,

regardless of their viewpoint. The regulation affected the

timing of the speech, not its content. The plaintiffs also had

ample opportunity to express their views to the board.

CATW members spoke at most school board meetings in

1988, and several levy opponents spoke during the October

meetings.

Although the board instituted its new policy in late

1988, when there was significant controversy over the levies,

there is no evidence that the policy was aimed only at CATW

members. The policy was adopted after a series of board

meetings at which an unusually large number of people

wished to speak. Some of the meetings were disrupted, and

others ran on at great length The policy did not

disproportionately limit the right of members of any particular

group to speak.

B-24

The government has a significant interest in the

orderly and efficient conduct of its business. See Grayned v.

City of Rockford, 408 U.S. 104, 119 (1972) (city has

compelling interest in undisrupted school session); Jones V.

Heyman, 888 F.2d 1328, 1333 (11th Cir. 1989) (mayor's

interest in controlling the agenda and preventing the

disruption of public meetings is significant governmental

interest); Madison Joint Sch. Dist., 429 U.S. at 176 n8

("Plainly, public bodies may confine their meetings to

specified subject matter .. . ."), Wright V. Anthony, 733 F.2d

575, 577 (8th Cir. 1984) (public hearing procedure limiting

speech time to five minutes per speaker was a valid time,

place, and manner restriction that served a significant

governmental interest in conserving time and allowing others

opportunity to speak).

"We are dealing not with words uttered on the street

to anyone who chooses or chances to listen; we are dealing

with meetings of the Norwalk City Council, and with speech

that is addressed to that Council. Principles that apply to

random discourse may not be transferred without adjustment

to this more structured situation. . . . [A] city Council

meeting is . . . a governmental process with a governmental

purpose. The Council has an agenda to be addressed and

dealt with. Public forum or not, the usual first amendment

antipathy to content-oriented control of speech cannot be

imported into the Council chambers intact."

White V. City Of Norwalk, 900 F.2d 1421, 1425 (9th

Cir. 1990).

B-25

The public participation policy at issue in the instant

case restricted the number of speakers and the amount of

time each person could speak, but it did not limit the content

of the speech or restrict the full range of expressive activity

available outside the board meeting. The policy left open

ample alternative opportunities for communication. The

board held several meetings to hear public comment, and

citizens were free to write or speak to board members outside

the board meetings.

Other courts have upheld policies comparable to the

one with which we are concerned here. See Jones v.

Heyman, 888 F.2d at 1334 (upholding plaintiff's expulsion

from city commissioner's meeting because plaintiff failed to

follow established public participation procedures); Wright v.

Anthony, 733 F.2d at 577 (upholding five-minute limit on

public comments during a hearing). We conclude that the

policy in this case was a permissible restriction on speech.

Mr. Huffman and Mr. Rood clearly violated the policy, and

the board did not act improperly by having them removed.

As to the remaining incidents -- Officer Tiburzio's

preventing several of the plaintiffs from reentering the

meeting, the arrests on October 24, and Officer Ross’ alleged

assault on October 29 -- there is no evidence linking the

board to these events. The district court acted properly in

granting summary judgment to the school board and its

members as to all claims.

Ill

B-26

The judgment entered by the district court is

REVERSED as to the claim that Officer Tiburzio improperly

excluded plaintiffs from a public board meeting and as to the

claims against defendants Hayfield and Husarik regarding

seizure of the fliers. The judgment is AFFIRMED as to all

other claims and all other defendants. The case is

REMANDED to the district court for further proceedings

not inconsistent with this opinion.

B-27

93-3231. crc\933231 . nfp November 3, 1994

Hansen V. Westerville, 933231/3303 (Heard 5-12-94)

ALICE M. BATCHELDER, Circuit Judge,

concurring in part and dissenting in part: Although I

concur in most of this opinion, I must respectfully dissent

from the finding that Dr. Husarik and Mr. Hayfield are not

entitled to qualified immunity for their actions in regard to

their confrontations with Mrs. McIntyre prior to the April 27

and April 28, 1988, informational meetings. The majority

concludes that there are genuine issues of fact which prevent

the granting-ef summary judgment on qualified immunity

grounds, particularly the issue of whether the defendants’

conduct actually deprived Mrs. MclIntyre of her First

Amendment right to free speech. I would hold that it did not,

and that, although the conduct of these defendants was

probably reprehensible, it was not unconstitutional.

It is undisputed that on each of these occasions these

defendants took only some of MclIntyre's pamphlets, that on

at least one of these evenings they took no pamphlets from

Mcintyre herself, that they merely threatened to call the

police but did not do so, and that neither of these defendants

had either the power or the authority actually to arrest or

prosecute McIntyre. The majority analyzes these facts under

NAACP V. Button, 371 U.S. 415 (1963); Glasson V. City of

Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S.

930 (1975); and Sloman V. Tadlock, 21 F.3d 1462 (9th Cir.

B-28

1994). I believe that there are crucial distinctions between

this case and each of those cited.

The principle from NAACP v. Button which the

majority applies to this case is the Supreme Court's statement

that "[t]he threat of sanctions may deter [the exercise of First

Amendment freedoms] almost as potently as the actual

application of sanctions." 371 U.S. at 433. But in that case

the Court was not addressing the actions of someone who

threatens to call the police. The quoted language is part of a

paragraph which addresses a statute's inhibitory effect, and in

that regard, the Court said,

The objectionable quality of vagueness

and overbreadth does not depend upon absence

of fair notice to a criminally accused or upon

unchanneled delegation of legislative powers,

but upon the danger of tolerating, in the area of

First Amendment freedoms, the existence of a

penal statute susceptible of sweeping and

improper application. These freedoms are

delicate and vulnerable, as well as supremely

precious in our society. The threat of sanctions

may deter their exercise almost as potently as the

actual application of sanctions. Because First

Amendment freedoms need breathing space to

survive, government may regulate in the area

only with narrow specificity.

Id. (citations omitted). Here, the action which the

majority describes as a threat of sanctions is the mere threat,

B-29

which was never carried out, by two school board members

to call the police. This is simply not comparable to a statute

which, if applied to plaintiff, would operate as sanction.

The majority opines that the facts in Glasson V. City

of Louisville bear some similarity to the facts here. I

disagree. In Glasson, it was the police who seized the

plaintiffs only poster. Not only was the plaintiff in Glasson

left without any graphic representation of the point of view

she sought to express, she was deprived of it by the law

enforcement authorities themselves, who had the power to

arrest her if she resisted. But in the case before us, it is

undisputed that only some of Mclntyre's pamphlets were

taken by the defendants, the defendants were not police or

other law enforcement officers, and although the defendants

threatened to call the police if McIntyre continued to pass out

the leaflets, she did continue her activity, but they did not call

the police.

Finally, in Sloman v. Tadlock, the Ninth Circuit

addressed claims against both a police defendant and a

civilian defendant. The defendant police officer in that case,

motivated by the content of the plaintiff's political speech, had

participated in the arrest of the plaintiff, who was not

violating any law at the time. 21 F.3d at 1466. The court held

that qualified immunity was not warranted because a

reasonable jury could have found that the plaintiff's political

activity was the motivating factor in the officer's decision to

issue warnings and citations, that the warnings and citations

were groundless, and that the officer's conduct had chilled the

plaintiff's expression. Id. at 1470. The court further held that

B-30

the civilian defendant had actually signed a citizen's

complaint that led to the arrest of the plaintiff, and that there

were genuine issues as to whether the civilian defendant had

acted in concert with the police and whether the civilian was

motivated by the content of the plaintiff's political speech. Id.

at 1474. But in the case before us, the defendants neither

could issue warnings and citations nor did anything

whatsoever to cause a warning or citation to be issued by the

police.

I do not question that Mclntyre's conduct was

protected by the First Amendment. While I disagree with the

majority's apparent disregard for the fact that the pamphlets

Mclntyre was passing out were in clear violation of an Ohio

law which has not, even today, been held to be

unconstitutional,’ I do not believe that issue is dispositive

here. And / assume, for purposes of this analysis, that

defendants Husarik and Hayfield were clothed with state

authority. What I cannot accept is the conclusion that these

defendants' actions reasonably should have been viewed by

them as violating MclIntyre's First Amendment rights.

McIntyre does not allege that the defendants left her with

insufficient literature to cover the meetings effectively, and as

noted above, she does not allege that she stopped passing out

the literature either evening. The majority cites no precedent,

and I have found none, that would support a holding that

these school board members should have known that if they

' The issue has been argued before the United States Supreme

Court but no decision as of this date has been issued.

B-31

took any of MclIntyre's materials they were violating her First

Amendment rights.

Neither can I join in the majority's view that a threat

to call the police, even when made by public school officials

on public school property, is equivalent to a threat of arrest

or prosecution, such that these school board members should

have known that when they threatened to call the police they

were violating MclIntyre's First Amendment rights. It is, after

all, the duty and function of the police to determine whether

an arrest should be made or citations issued. I think we set

an alarming precedent when we acknowledge the potential

for § 1983 liability for merely calling the police. And in this

case, the majority agrees that these officials may be found

liable merely for threatening to call the police. In short, since

I do not believe that any reasonable school board official

should have known that when he took some of her leaflets

and threatened to call the police, regardless of his motives in

doing so, he was violating MclIntyre's First Amendment

rights, 7 would affirm the district court's judgment granting

qualified immunity to these defendants. ;

B-32

Nos. 93-323 1/3303

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MAUREEN HANSEN, et al.,

Plaintiffs- Appellants,

JOSEPH MCINTYRE; LEWIS

HINKLE,

)

)

)

)

)

)

)

Plaintiffs, )

)

v. ) ORDER

)

WESTERVILLE CITY SCHOOL )

DISTRICT, BOARD OF )

EDUCATION, ET AL. )

)

Defendants-Appellees, )

)

CITY OF WESTERVILLE, )

)

)

)

)

)

)

)

Defendant,

ACLU OF OHIO

FOUNDATION, INC.,

Amicus Curiae

C-]

BEFORE: NELSON, SHURHEINRICH, and

BATCHELDER, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and less than a majority of the judges having

favored the suggestion, the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

C-2

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[1-97

you were going to be arrested?

A. Well, again, it was sort of like echo, you

know.

Q. So they both said it?

A. What one said, the other seemed to repeat.

Q. And then about going in and calling the

police, did they both say that or just one of them?

A. I'm not sure if Hayfield or Husarik said it,

because at that point I had almost quit listening to

them, because other people were coming in, and I was

talking to other people as they were coming in, because

they were reaching for the fliers.

So like I said, they were both walking right

together, and one says, "We're going in to call the

police." And I says, "Okay. Please do," or something

like that. "I'll be" - - "I'm right here."

Q. So you don't recall which one said it or if

both of them said it?

A. It might have been the same case where they

both said it.

Q. You're not sure one way or the other?

But to the best of my memory, one of them

said it, if not both. But they did say "we," so --

Q. Did you remain on the premises after they

D-1

]

2

3

4

5

6

7

8

9

RQ BRO RQ RDO RO mw eet

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A. Yes, I did.

Q. Did you continue to distribute the leafiets?

A. Yes, I did.

Q. So it really didn't make any difference to

you what they were saying, did it?

A. Well, they had a right to their opinion, I

suppose.

Q. But it wasn't going to stop you from doing

what you wanted to do?

Q. Was it?

A. No, it didn't.

Q. In fact, you did it the next night?

A. That's right.

Thereupon, a document was marked for the

purpose of identification as McIntyre Deposition

Exhibit No. 2.

BY MR. BURNES:

Q. Mrs. MclIntyre, I'm going to hand you what's

been marked as McIntyre Deposition Exhibit No. 2.

I'll note for the record that at the top

handwritten is "Exhibit A," and that -- or actually --

D-2

ee ee ee

I-120

1 A. Just two nights.

2 MR. VAILE: That's what he meant.

> @& And, in fact, Mrs. McIntyre, you, after

4 April 27th and 28th, continued to attend board

5 meetings, did you not?

66 «6A. Yes.

ee Continued to seek to speak to the Board in

8 public participation?

S A. Yes.

10 Q. And Dr. Husarik was at those meetings,

11 correct?

2 A. Yes.

3 ®. Mike Hayfield was at those meetings,

14 correct?

ae 2 Yes.

16 Q. That didn't stop you from trying to speak to

17 ‘the Board?

18 A. No.

19 Q. And you actively campaigned against the

20 August 1988 levy?

, > ie Yes.

m6 6]. And you actively campaigned against the

23 November '88 levy?

74 SCA. Yes.

D-3

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hRwWNK OO WA AKAN hWN — CO

I-12]

Q. And didn't -- The fact that Hayfield and

Husarik had done these things that you said they did on

April 27th and 28th didn't have any effect upon your

willingness in wanting to go out and do those things,

did it?

A. Well, I continued to go to the meetings.

Q. The question is that, your opposition -- And

you were actively working in opposition to not only the

May levy but the August levy and the November levy of

the Westerville Board of Education; correct?

A. That's night.

Q. And when we say "you actively did that," you

campaigned; you handed out leaflets; you talked to

people; you went to meetings; you, I'm sure, did other

thing in opposition to the levy. Correct?

A. That's correct.

Q. And you did all of that despite being --

feeling threatened by Husarik and Hayfield on April

27th, 28th; correct?

A That's correct.

Q. Can you tell me one thing that you didn't do

because you felt threatened by Husarik and/or Hayfield?

A. You want to clarify that?

Q. Uh-huh. I'm trying to determine whether

omen aunt wn

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bBwNK CHO MAI ANA WN OC

what the effect of this feeling threatened was, and

part of that, I'm asking you if there's anything at all

that you didn't do after April 27th, 28th because of

what you alleged Dr. Husarik and Mr. Hayfield did on

those two dates.

A. The threat and the embarrassment was already

there the 27th and 28th. They -- Life goes on.

Q. My question is: Is there anything that you

didn't do; anything that you said, “Well, gee, I'd like

to do this," or, "I should do this," or, “I usually do

this, but I'm not going to do that now because I feel

threatened because of what Husarik and/or Hayfield did

to me on April 27th and 28th, 1988"?

A. Not to my knowledge.

Q. And, in fact, you not only opposed the three

levies in 1988 but you also ran for the Board of

Education in 1989; correct?

A. That's true.

Q. And you also led an effort to repeal the

levy that was passed in 1988, did you not?

MR. VAILE: I'm going to object relative to

the relevancy as far as the -- that period of time is

concerned.

MR. BURNES: So noted

D-5

1-122

Oo AeA NM fh WN —

hwWNORK OO WA KHAN Lh WN — CO

I-13]

'88. No. It was '89.

Q Okay.

A I'm sorry.

Q. So then it was --

A We've been talking about '88, so --

Q That's fine. So you found out about the

charge being filed in 1989, then?

Someone from the newspaper called me.

I'm trying to focus on the year now. It was

'89.

And to your recollection, you found out very

shortly after the charge was filed, within days?

A Probably, yes.

Q. And after receiving notification that the

charge had been filed, you continued in your efforts to

repeal the levy and to oppose the levy that was placed

on the ballot in 1989 and to run for board office;

correct?

A. That's correct.

Q. And, Mrs. McIntyre, you filed a number of

charges against a number of people alleging election

law violations, did you not?

A

Q

1989?

A

Q

A. That's correct.

D-6

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BRO RO RQ wee es

Ne CO CO WON AU hWN — OC

23

No

>

Ill-24

No.

Q. Now, after -- Strike that.

Where was Mr. Huffman seated in respect to

you during this meeting?

A. On the other side of the aisle, I believe.

Q. Approximately how many feet from you?

A. Seven.

Q. Did you talk to him at all before he got up

and attempted to speak at this meeting?

A. No.

Q. How far were you from the podium, to the

best of your recollection?

A. Two and a half, three feet.

Q. Was there anything between you and the

podium?

A. No.

Q. So were you sitting in the front row, then?

A. Yes.

Now, tell me --

You were in the meeting at the time that the

police officer approached Mr. Huffman at the podium?

A. Yes.

Q. Tell me what you recall happening.

A. What specifically?

Oo wmON KHAN hwW NY —

er ee ee ee ee ee ee

IlI-85

of them?

A. Both.

Q. And was that one night or both?

A. Both.

Q. And what did they do to attempt to

confiscate the other leaflets?

A. They asked me to give them to them.

Q. Anything else that they did to attempt to

confiscate them?

A. Well, they reached out to take them.

Q. Both of them?

A. Hayfield, the first night; and Husarik, the

second.

Q. Also alleges that they threatened you and

the others with action including criminal prosecution

and arrest.

Who were the others that were threatened?

A. My son and the friend who was with him.

Q. And let's talk about Blendon. Were they --

Were your son and his -- What's her name? Tiffany?

A. Yes.

Q. Did someone threaten them with action

including criminal prosecution and arrest?

A. My daughter was with me the night at Walnut,

D-8

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WN NN NY HN — = SE SS eS eS

hWNOK OO WOH AUN WN — CO

III-84

Do you have any facts or information that

any board member or employee of the board of Education,

which you understand to include Dr. Husarik and

Mr. Hayfield, engaged in any vandalism to your house?

A. No proof, no.

Q. Is it your contention that any of these

individuals did engage in vandalism to your house?

A. No.

Q. Referring you -- And I believe you still

have the complaint in front of you. Referring you to

page 4, paragraph 14, it alleges that defendants

grabbed many of the leaflets and attempted to

confiscate the others.

Did this -- First of all, did both Hayfield

and Husarik grab leaflets from you?

A. No. just Hayfield.

Q. And did that occur both nights or just the

one night?

A. Just the one night.

Q. And which was that? at Blendon or Walnut

Springs?

A. Blendon.

Q. And as far as attempting to confiscate the

others, was that both Hayfield and Husarik or just one

WwW bd

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oS

IV-15

with Officer Tiburzio other than what you have explained

today?

A. Personal contact?

Q. Yeah.

a. No.

Q. Okay. Anything that makes you believe that

you -- that you have a claim against him?

A. Other than his violation of my nghts.

Q. Which was what you have just described; is

that correct?

A. Yes.

Q. Okay. After that evening, have you

continued to be active in activities involving the

school board?

A. What do you mean?

Q. Whether it be school levies or otherwise.

Well, you just ran for school board, did you not?

A. Yes.

Q. o the fact that Officer Tiburzio told you

to leave didn't keep you from running for school board.

A. That was three years ago.

Q. Okay. Was this last election, was that the

first time you've run?

A. No, I ran in '89.

D-10

IV-15

Q. You ran in '89 also. Have you continued to

go in to school board meetings?

A. Not as frequently.

Q. But you do go?

A. Yes.

Q. Okay. do you -- have you continued to state

your opinions or beliefs concerning issues involving the

school board?

A. Yes.

Q In terms of stating your opinions and

belief, has that included speaking at school board

meetings?

A. On occasion, yes

Q. Okay. In what other manner have you stated

your opinions and beliefs?

A. Quite often the newspaper calls me and asks

me On -- my Opinion on certain issues.

Q. Okay. So you've stated your opinion in

several public forums, whether it be school board

meetings or in the newspapers, you've stated your

opinions to other people, I assume, outside of school

board meetings?

A Yes.

Q. Okay. And in campaigning, I assume that

D-11