IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT … · 1:10 CV 02883 MEMORANDUM OF OPINION...

1 William Smith, who was initially named as a defendant, also joined in themotion. Mr. Smith was later voluntarily dismissed from the case on on 29May 2012. (Doc. 59).

IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIOEASTERN DIVISION

------------------------------------------------------

ELIZABETH GOODWIN, guardian andnext friend on behalf of David Lee Nall,et al.,

Plaintiffs,

-vs-

CITY OF PAINESVILLE, et al.,

Defendants.------------------------------------------------------

.::::::::::

CASE NO. 1:10 CV 02883

MEMORANDUM OF OPINION ANDORDER GRANTING IN PART ANDDENYING IN PART THEDEFENDANTS’ MOTION FORSUMMARY JUDGMENT

UNITED STATES DISTRICT JUDGE LESLEY WELLS

Following an encounter with the police, the plaintiffs David Lee Nall, by next

friend, and Rebecca Nall filed suit, alleging federal constitutional and state law

violations. The defendants, the City of Painesville (“Painesville”), Officer Roberto Soto,

Officer Jason Hughes, Officer Matthew Collins, and Officer Russell Tuttle, now move for

summary judgment.1 (Doc. 32). The motion is fully briefed and ready for the Court’s

consideration. For the reasons that follow, the motion is granted in part and denied in

part.

Case: 1:10-cv-02883-LW Doc #: 69 Filed: 01/13/14 1 of 37. PageID #: 2628

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I. Background

Early on 26 July 2010, plaintiff David Lee Nall, his wife plaintiff Rebecca Nall, and

a number of others were gathered at the Nalls’ apartment in Painesville, Ohio. (R. Nall

Depo., Doc. 34-1, pp. 49-50). The party was loud and drunken, and a neighbor

complained to the police. Officer Roberto Soto and Officer Jason Hughes of the

Painesville Police Department responded to the call. (Soto Aff., Doc. 32-3, ¶¶3,4). The

Nalls’ apartment was an upstairs unit accessible from an outdoor staircase at the rear of

the house. (Doc. 32-5). Upon their arrival, the officers heard yelling and commotion

coming from inside of the apartment. (Soto Aff., Doc. 32-3, ¶6). The officers knocked,

and a shirtless, shoeless Mr. Nall answered. (Soto Aff., Doc. 32-3, ¶6; R. Nall Depo.,

Doc. 34-1, pp. 61-62). The officers observed gang tattoos on his chest, hand, and face.

Mr. Nall was breathing heavily, sweating, and angry that the police were at his

apartment. (Soto Aff., Doc. 32-3, ¶¶6-8; R. Nall Depo, Doc. 34-1, pp. 61-62). Officer

Soto thought that Mr. Nall may have been in a physical altercation. (Soto Aff., Doc. 32-

3, ¶8). Mrs. Nall appeared alongside her husband. (Soto Aff., Doc. 32-3, ¶6).

The officers explained that they were responding to a report of a disturbance and

asked for identification. (Soto Aff., Doc. 32-3, ¶¶7, 9-10). Mr. Nall reportedly became

argumentative and visibly agitated. (Soto Aff., Doc. 32-3, ¶10). Officer Soto twice

advised Mr. Nall that he would be arrested for disorderly conduct if he did not calm

down. (Soto Aff., Doc. 32-3, ¶¶11, 13). After receiving assurances from Mrs. Nall that

there would be no further disturbance, the officers left. (Soto Aff., Doc. 32-3, ¶14). They

remained in the driveway, however, because the commotion continued after they had


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gone. (Soto Aff., Doc. 32-3, ¶15). At that point, according to Mrs. Nall, it was very loud

inside the apartment. (R. Nall Depo., Doc. 34-1, p. 64). Everyone was intoxicated and

“talking over top of each other.” (R. Nall Depo., Doc. 34-1, p. 64).

According to the officers, one of the Nall’s guests, Michelle Prochaska, then

exited the apartment, descended the stairs, and approached them. (Soto Aff., Doc. 32-

3, ¶18). The officers claim that Ms. Prochaska was visibly shaken and crying. (Soto Aff.,

Doc. 32-3, ¶18). She informed them that Mr. Nall had assaulted her and that he

threatened to kill everyone present including the police. (Soto Aff., Doc. 32-3, ¶19).

According to Ms. Prochaska’s affidavit, Mr. Nall pushed her down, tore off her necklace,

punched another woman, and threatened her and others. (Prochaska Aff., Doc. 32-6,

¶7). The officers claim that they continued to hear shouting and a woman yelling “David

stop!” coming from the apartment. (Soto Aff., Doc. 32-3, ¶21). They called for back-up

and returned to the apartment door, with the intention of arresting Mr. Nall for disorderly

conduct. (Soto Aff., Doc. 32-3, ¶19). They knocked, and Mr. Nall answered, still

agitated, sweaty, and out of breath. (Soto Aff., Doc. 32-3, ¶22). Officer Soto, holding his

taser behind his hip, asked Mr. Nall to come downstairs to talk. (Soto Aff., Doc. 32-3,

¶22). What happened next is the subject of significant dispute.

According to the plaintiffs, in response to Officer Soto’s request, Mr. Nall stated

that he did not have to leave his apartment, and he closed the door. (R. Nall Depo.,

Doc. 34-1, pp. 72-74). The plaintiffs claim that Mr. Nall then walked into his living room,

where several women, including Mrs. Nall were seated. (R. Nall Depo., Doc. 34-1, pp.

74-75). At this point, the plaintiffs contend, the police kicked in the apartment door. (R.


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Nall Depo., Doc. 34-1, p. 74). Officer Soto entered and approached Mr. Nall in the living

room. (R. Nall Depo., Doc. 34-1, p. 74). Mrs. Nall claims that she saw Mr. Nall turn

around to face the officer. (R. Nall Depo., Doc. 34-1, p. 74). Then, without any warning,

Officer Soto fired the taser. (R. Nall Depo., Doc. 34-1, p. 75). According to Mrs. Nall, the

taser barbs struck Mr. Nall in his chest, and he immediately dropped to the floor. (R.

Nall Depo., Doc. 34-1, p. 75). It is undisputed that electricity cycled through Mr. Nall’s

body for 21 seconds. By all accounts, this was an atypically long exposure. (See, e.g.,

Doc. 34-5, p. 28). During this time, Mr. Nall was convulsing, his body was rigid, and he

was reportedly foaming at the mouth. (Doc. 39-15, p. 5). According to Mrs. Nall, her

husband was on his back and his hands were involuntarily “curling” up under his chin.

(R. Nall Depo., Doc. 34-1, p. 75). Mr. Nall did not appear to have control over the

movement of his body. (R. Nall Depo., Doc. 34-1, pp. 75-76). Mrs. Nall testified that

throughout the tasering the officers were standing around Mr. Nall attempting to put him

in cuffs. (R. Nall Depo., Doc. 34-1, pp. 77-79).

Officer Soto presents an entirely different version of this event. He claims that he

was positioned outside the apartment door when he fired the taser, not inside the

apartment as the plaintiffs claim. (Soto Aff., Doc. 32-3, ¶27). Officer Soto maintains that

immediately prior to firing the taser, he informed Nall that he was under arrest. (Soto

Aff., Doc. 32-3, ¶24). He ordered Mr. Nall to come outside and stated that he would be

tasered if he did not submit. (Soto Aff., Doc. 32-3, ¶26). After Mr. Nall assumed an

aggressive posture and attempted to slam the door, Officer Soto stopped the door with

his foot. (Soto Aff., Doc. 32-3, ¶¶25-27). Soto then deployed the taser as Mr. Nall


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retreated behind the apartment door. (Soto Aff., Doc. 32-3, ¶27). Officer Soto claims

that he was not certain that the barbs had struck Mr. Nall or whether the device was

functioning properly, since Mr. Nall became obscured by the apartment door

immediately after the taser was fired. (Soto Aff., Doc. 32-3, ¶¶27, 30).

The taser barbs had, in fact, struck Mr. Nall in the chest near his heart. The taser

was functioning, and Officer Soto admits that he had been holding down the trigger for

the full 21 second duration, although he believed at the time that it was only for 10

seconds. (Soto Aff., Doc. 32-3, ¶43). Officer Soto also states that, at the time, he had

the mistaken understanding that the taser would automatically stop discharging

electricity after five seconds, even if the trigger was depressed. (Soto Aff., Doc. 32-3,

¶43).

Believing the situation to be volatile and unsure whether Nall had a weapon,

Officer Soto entered the apartment cautiously, and Officer Hughes followed. (Soto Aff.,

Doc. 32-3, ¶¶29-30). According to Officer Hughes, it took 15-20 seconds to enter the

apartment. (Hughes Aff. ¶43). Nall was being shocked the entire time, but the officers

claim they did not know it. Upon entering the living room, Officer Soto saw Nall

attempting to stand, and he claims to have believed, still erroneously, that the taser was

not functioning properly. (Soto Aff., Doc. 32-3, ¶31). Officer Soto claims that he ordered

Nall to stop resisting. (Soto Aff., Doc. 32-3, ¶31). Soto attempted to subdue Nall. (Soto

Aff., Doc. 32-3, ¶31). As he did so, he became tangled in the taser wires and received a

shock himself. (Soto Aff., Doc. 32-3, ¶31). Only then did Officer Soto realize that the


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taser had been discharging electricity since its initial deployment. Finally, Officer Soto

released the trigger.

It is undisputed that the scene inside the apartment at this point was chaotic.

People were screaming, and Mrs. Nall, quite naturally, became extremely upset seeing

her husband convulsing and foaming at the mouth apparently as a result being tasered.

(Soto Aff., Doc. 32-3, ¶32; R. Nall Depo., Doc. 34-1, p. 80). One of the Nalls’ guests

found the situation so alarming that she called 911 to report the officers’ actions. (Doc.

39-15, pp. 4-5). Nonetheless, Officers Soto and Hughes claim that they continued to

meet with active resistance from Nall as they tried to handcuff him. (Soto Aff., Doc.

32-3, ¶33). So, Officer Soto applied the taser to Mr. Nall again, though, this time, in

“drive-stun” mode, which involved a direct application of the device to Mr. Nall’s skin.

(Soto Aff., Doc. 32-3, ¶33). After receiving a second shock for five seconds, Mr. Nall

reportedly continued to resist. (Soto Aff., Doc. 32-3, ¶33). A third officer, Matthew

Collins, who had arrived on the scene at some point, assisted, and they managed to

handcuff the plaintiff, with Nall allegedly resisting all the while. (Soto Aff., Doc. 32-3,

¶33). After officers removed Mr. Nall from the apartment, the officers arrested Mrs. Nall

for disorderly conduct. Officer Hughes and Officer Ross Tuttle lifted Mrs. Nall from the

couch and removed her from the apartment. (R. Nall Depo., Doc. 34-1, p. 81).

Once Mr. Nall was outside, he became unresponsive but continued to breath.

Officer Collins observed that Mr. Nall’s breathing had changed to a “gurgling” and that

he was foaming at the mouth. (Collins Depo., Doc. 42, p.41). Paramedics were called,

the handcuffs were removed, and the officers reportedly monitored the plaintiff’s


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condition. (Soto Aff., Doc. 32-3, ¶39). Paramedics arrived and began treating Mr. Nall.

Shortly thereafter, his heart stopped. (Soto Aff., Doc. 32-3, ¶41). Paramedics

administered CPR, reviving him. Mr. Nall was hospitalized, and it was determined that

his blood alcohol level was .287. (Doc. 32-9). He also had opiates and cannabinoid in

his system. (Doc. 32-9). He remained in the hospital for over two weeks. Both Mr. and

Mrs. Nall were charged with disorderly conduct as a result of the incident, but the

charges were ultimately dismissed. (Doc. 40-7).

The plaintiffs state that Mr. Nall is now permanently disabled, allegedly as a

result of Officer Soto’s use of force against him. They claim that Mr. Nall cannot be left

alone and he requires assistance to accomplish simple tasks, such as getting dressed.

(Doc. 54-2). Through a court appointed guardian, Mr. Nall brought this section 1983

suit, in which Mrs. Nall joins as a plaintiff. Mr. Nall alleges that his civil rights were

violated when Officer Soto used excessive force to restrain him and when Officers

Hughes and Collins failed to protect him from excessive force. (Doc. 1, ¶72). Both Mr.

and Mrs. Nall allege that they were arrested without probable cause. (Doc. 1, ¶72). The

plaintiffs also bring state law causes of action, including assault and battery, false

imprisonment, malicious prosecution, intentional and negligent infliction of emotional

distress, and loss of consortium. (Doc. 1, ¶¶73-78). The plaintiffs also maintain that

Painesville is liable for their injuries.

The individual defendants have moved for summary judgment, arguing that they

are entitled to qualified immunity as to the plaintiffs’ constitutional claims. (Doc. 32).

They maintain that statutory immunity protects them from the plaintiffs’ state law claims.


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Painesville asserts that it is not liable because it did not maintain an official policy or

custom that caused any constitutional injury to the plaintiffs. Painesville further argues

that it is statutorily immune from the state law causes of action.

II. Standards

Summary judgment is warranted “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c). “In deciding a motion for summary judgment, this court views the

factual evidence and draws all reasonable inferences in favor of the nonmoving

party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000) (citing

Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 616 (6th Cir. 1998)). “In

qualified immunity cases, this usually means adopting . . . the plaintiff's version of the

facts.” Scott v. Harris, 550 U.S. 372, 378 (2007).

To prevail on a section 1983 claim, a plaintiff “must establish that a person acting

under color of state law deprived [him] of a right secured by the Constitution or laws of

the United States.” Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (citing Waters v.

City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001)). A defendant may assert “the

defense of qualified immunity, which shields government officials 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.’” Id. (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In qualified immunity cases, the

plaintiff bears this burden; he must show that the defendant is not entitled to qualified


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immunity.” Wysong v. City of Heath, 260 Fed.Appx. 848, 852 (6th Cir.2008) (citing

Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir.1991)).

When determining whether the allegedly injured party has met this burden, the

Court “typically employs a two-step analysis,” asking: “‘(1) whether, considering the

allegations in a light most favorable to the party injured, a constitutional right has been

violated, and (2) whether that right was clearly established.’” Smoak, 460 F.3d at 777

(quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005)).

III. Discussion

A. Excessive Force

Officer Soto maintains that he is entitled to qualified immunity because his use of

the taser was objectively reasonable. Objective reasonableness is determined by a

“careful balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interest against the countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S. 386, 388 (1989). The relevant factors in determining

whether the use of force was reasonable include “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers and others,

and whether he is actively resisting or attempting to evade arrest by flight.” Id. at 396.

On the question of whether the use of force was reasonable, the Court takes a

flexible approach. There is no “magical on/off switch” in the determination whether an

officer's conduct constituted excessive force. See Scott, 550 U.S. at 382. The Sixth

Circuit has looked to a variety of other factors in this context, including “the demeanor of


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the suspect,” and “the size and stature of the parties involved,” Solomon v. Auburn Hills

Police Dep't, 389 F.3d 167, 174 (6th Cir. 2004), whether the suspect was fighting with

the police, Untalan v. City of Lorain, 430 F.3d 312, 317 (6th Cir. 2005), and whether he

was intoxicated and noncompliant, Monday v. Oullette, 118 F.3d 1099, 1104-05 (6th Cir.

1997). Depending on the circumstances, other factors could be relevant. Davenport v.

Causey, 521 F.3d 544, 551-52 (6th Cir. 2008). There is no “easy-to-apply legal test in

the Fourth Amendment context.” Scott, 550 U.S. at 383. Rather, the Court must look to

the “factual and practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003).

In the present case, Officer Soto maintains his actions were objectively

reasonable because Mr. Nall physically assaulted a woman; Mr. Nall threatened to harm

others; after being warned to stop his aggressive behavior, he refused to comply with

police orders; he assumed an aggressive stance with the officers; he challenged police

with clenched fists; and he slammed the door on officers as he fled into the apartment;

he was under the influence of alcohol and drugs. In the Court’s view, material facts are

in dispute as to whether Officer Soto’s use of force was reasonable.

First, on the question whether Mr. Nall was a threat to the safety of the officers or

others, the defendants rely on Ms. Prochaska’s assertion that Mr. Nall had assaulted

her and had threatened to harm others as justification for the decision to use the taser.

Ms. Prochaska’s affidavit indicates that after leaving the apartment, she told officers that

Mr. Nall had assaulted her, struck another woman in the face, and threatened to harm

others. (Doc. 32-6). The officers attest that Ms. Prochaska told them essentially the


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same thing. (Soto Aff., Doc. 32-3,¶19; Hughes Aff. ¶17). It was on that basis that the

officers made the initial decision to intervene.

The plaintiffs for their part have not provided any affirmative evidence that Ms.

Prochaska did not report the alleged assault to the officers as they claim. And it would

be difficult for them to do so, since neither of the Nalls was present when Prochaska

spoke to the police, and Mr. Nall remembers nothing that occurred that night. However,

the Court is convinced that it is still a question for a jury whether the officers reasonably

perceived Mr. Nall as a threat based on Prochaska’s statement. This is for a number of

reasons. First, courts take pause in a situation such as this, “when the knowledge of the

events or occurrences on which the action is based lies exclusively within the control of

the party moving for summary judgment.” 10A Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 2726 (3d ed.); See, e.g.,

Lancaster v. Ohio River Co., 446 F. Supp. 199, 201 (N.D. Ill. 1978) (“[O]n issues such

as negligence, especially when the basic facts are within the defendant's exclusive

control, credibility questions are important issues which should be presented and

preserved for decision by the ultimate fact finder.”). This Court agrees with the view that

“‘there is a justifiable judicial fear of the injustice which could result from judgment

based on affidavits asserting facts that are, because of their nature, incapable of being

effectively controverted.’” Id. (quoting John A. Bauman, A Rationale of Summary

Judgment, 33 Ind.L.J. 467, 492 (1958)).

While this “judicial fear” may not be a sufficient reason by itself to deny summary

judgment, a number of other factors support denying the motion. For instance, although


12

the plaintiffs present no evidence directly contradicting the claim that Prochaska

reported an assault or a threat of violence, they have presented some evidence by

which a rational jury might conclude that there was no assault. Mrs. Nall, who was

present in the apartment at the time that the alleged assault occurred, was unaware of

the incidents of violence alleged by Ms. Prochaska. (R. Nall Depo., Doc. 34-1, pp. 64-

65). During her deposition, Mrs. Nall stated that she did not believe that Mr. Nall

threatened Ms. Prochaska. (R. Nall Depo., Doc. 34-1, p. 66). Moreover, there is

evidence that the officers themselves may not have believed there was a threat or an

assault on anyone, since Mr. Nall was not arrested on that basis. After Ms. Prochaska

exited the apartment and reported to the officers that Mr. Nall had assaulted her, the

officers returned to the Nalls’ back door with the intention of arresting Mr. Nall on a

charge of disorderly conduct, not assault. (Soto Depo. Doc. 34-3, 56-57). And, after the

officers successfully restrained Mr. Nall and removed him from his apartment, they in

fact arrested him for disorderly conduct, not for assault.

Further, the plaintiffs have raised colorable issues as to the credibility of both Ms.

Prochaska and Officer Soto. Ordinarily, the “prospect of challenging a witness'[s]

credibility is not alone enough to avoid summary judgment.” Dugan v. Smerwick

Sewerage Co., 142 F.3d 398, 406 (7th Cir.1998). However, “‘summary judgment is not

appropriate where the opposing party offers specific facts that call into question the

credibility of the movant's witnesses.’” Dawson v. Dorman, 528 F. App'x 450, 452 (6th

Cir. 2013) (quoting TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1158

(Fed.Cir. 2004)); see 10A Wright, Miller & Cooper, Federal Practice and Procedure §


2 The Prochaska affidavit bears the date June 7, 2001, but this is assumed to be atypographical error, since, as the plaintiffs point out, it would predate the eventsin this case. The defendants do not dispute that Prochaska actually signed theaffidavit on June 7, 2011.

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2726 (“Clearly, if the credibility of the movant's witnesses is challenged by the opposing

party and specific bases for possible impeachment are shown, summary judgment

should be denied and the case allowed to proceed to trial[.]”).

In this instance, the plaintiffs point out that Ms. Prochaska’s affidavit was signed

on 7 June 2011,2 one day after she had been charged with operating a vehicle under

the influence (OVI) in Painesville Municipal Court. (Doc. 32-6). Two days later, the OVI

charge was voluntarily dismissed by the city attorney. (Doc. 54-6). If presented with this

information, a rational jury could conclude that Ms. Prochaska is not credible because

she exchanged her statement for favorable treatment in municipal court.

With respect to Officer Soto’s credibility, the plaintiffs point out that it is the official

policy of the Painesville Police to record all citizen encounters. (Doc. 40-8). In this

instance, Officer Soto did not activate his recording device when he confronted Mr. Nall.

Officer Soto stated that had he triggered the device, an audio recording of the incident

would have been available, which could have resolved many of the factual questions in

this case. (Doc. 34-3, p. 10). When asked why he did not start the tape, Officer Soto

claimed that he could not remember, (Doc. 34-3, p. 45), but he thought that the

equipment might have been broken. (Doc. 34-3, p. 8). However, if it had been broken at

that time, Officer Soto did not make a record of it. (Doc. 34-3, p. 8). Notably, the

plaintiffs also provide evidence to show that Officer Soto had previously been warned

about his failure to use his recording device during another citizen encounter. (Doc. 39-


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3). Given this apparent pattern, a rational jury could conclude that Officer Soto’s failure

to activate the tape reflects adversely on his credibility. And, to further bolster their

challenge to Soto’s credibility, the plaintiffs assert that Officer Soto had previously been

reprimanded for stealing a marijuana pipe out of evidence. (Doc. 39-2). In the Court’s

view, the plaintiffs have provided sufficient grounds for impeaching both Prochaska and

Soto, making summary judgment inappropriate.

The defendants also support their claim that Mr. Nall presented a threat to the

safety of the officers and those inside the apartment based on the affidavit of Officer

Hughes. The plaintiffs do not challenge Officer Hughes’s credibility. Nor do they directly

challenge his claim that he believed Mr. Nall to be a threat based on Ms. Prochaska’s

report of an assault. Nonetheless, it is the Court’s view that whether the officers

reasonably perceived Mr. Nall as a threat is still a jury question. As with Officer Soto,

Officer Hughes’ claim that he perceived Nall as a threat is undercut by the fact that Nall

was not arrested for assault. Moreover, as discussed above, given the defendants’

exclusive control over information relating to whether Prochaska reported Nall as a

threat, the questions as to Soto’s and Prochaska’s credibility, and the numerous

disputed facts elsewhere in this case, Officer Hughes’ untested affidavit should not be

allowed to carry the day for the defendants. In the Court’s view the evidence is not “so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986). Rather, “the evidence presents a sufficient

disagreement to require submission to a jury.” Id. Therefore, a jury must decide whether


15

the police reasonably perceived Mr. Nall as a threat to their safety and the safety of

others.

Furthermore, even if it were determined that the officers reasonably perceived

Mr. Nall as a threat and Officer Soto’s initial decision to deploy the taser was justified as

a matter of law, summary judgment would still be inappropriate because, as discussed

below, the facts are in dispute as to whether the officers’ subsequent actions were

objectively reasonable. To begin with, it is not clear whether Mr. Nall disobeyed police

orders, since he may not have been ordered to do anything. Officer Soto claims that

during his second visit to the back door, he told Mr. Nall that he was under arrest and

ordered him to come out of the apartment. (Soto Aff., Doc. 32-3, ¶¶24,26). The officers

also claim that Mr. Nall acted aggressively toward them at that point. According to the

plaintiffs, however, when the officers made their second visit, Officer Soto only “asked

[Mr. Nall] to come outside.” (R. Nall Depo., Doc. 34-1, pp. 71-73). Mr. Nall responded, “I

don’t have to step outside.” (R. Nall, Depo. p. 72). That, according to Mrs. Nall, was the

full extent of the conversation. (R. Nall, Depo. p. 74-75). At that point, Mrs. Nall claims

that Mr. Nall closed the door and stepped into the living room. (R. Nall, Depo. p. 74).

According to Mrs. Nall, the officers never informed Mr. Nall that he was under arrest. (R.

Nall, Depo. p. 77). In the Court’s view, Mrs. Nall’s testimony calls into question the

officers’ claim that Mr. Nall disobeyed their orders or acted aggressively.

The defendants argue that Mrs. Nall’s testimony on this point should be rejected

because she was inside the apartment hosting a number of rowdy guests and she

would have been unable to see or hear what was happening outside the apartment.


16

(See Doc. 60, p. 6). The Court declines to decide on the veracity of Mrs. Nall’s

testimony. On a motion for summary judgment, the Court is not permitted to weigh the

evidence or make credibility determinations. Anderson, 477 U.S. at 249. This is for a

jury to decide, and it will be up to the defendants to make their case at trial.

Further, it is disputed whether Mr. Nall fled from the police or attempted to evade

arrest. Soto claims that Mr. Nall was fleeing behind the door when he fired the taser.

Mrs. Nall asserts otherwise, claiming that after the police kicked in the door, Officer Soto

fired the taser at Mr. Nall, without warning, while he stood in her living room. (R. Nall

Depo., Doc. 34-1, p. 74). To further potentially undermine Soto’s factual claims that Mr.

Nall fled, the plaintiffs persuasively argue the physical configuration of the apartment

and the location where the taser barbs struck Mr. Nall’s body, which are beyond

dispute, could be construed as more consistent with their version of events. (Plaintiffs’

Opposition, Doc. 54, pp. 17-18). The plaintiffs point out that Mr. Nall was struck slightly

right of center on the chest with one of the taser barbs. They further point out that the

door to the apartment opens inward and swings to the left. In order to reach the living

room, where the defendants claim he was fleeing, Mr. Nall had to first close the

apartment door, at least partially, and turn to his right. Unless Mr. Nall for some reason

turned to his left and backed his way into the living room (which no one claims that he

did), a jury might find it incredible that the taser barbs struck Mr. Nall on his right side. In

the Court’s view, the facts are in dispute on the question of whether Mr. Nall was fleeing

from the police.


17

While the events leading up the deployment of the taser are disputed, there is no

question that Officer Soto administered an initial shock to Mr. Nall lasting 21 seconds. It

is the defendants’ position that the 21 second application should be viewed as

reasonable mistake on the part of Officer Soto, because after discharging the taser, he

could not see Mr. Nall, who was retreating behind the door and into the apartment. As a

result, Officer Soto was not sure if the taser barbs had struck Mr. Nall. Officer Soto

claims that he entered the apartment cautiously and slowly because he was faced with

a potentially dangerous situation. He states that he simply did not realize that Mr. Nall

was being shocked as he made his prolonged entry. Under the circumstances, the

defendants claim this was a reasonable mistake on Officer Soto’s part.

It is true that officers are permitted to make reasonable mistakes, Smith v.

Freland, 954 F.2d 343, 347 (6th Cir. 1992), and Officer Soto may have made one.

However, it is too early to say whether he did, because, as already noted, Mrs. Nall

provides evidence that directly contradicts Soto’s version of events. Based on Mrs.

Nall’s deposition testimony, a rational jury could conclude not only that Soto saw Mr.

Nall when the taser was fired but that he saw the taser barbs strike him in the chest.

Mrs. Nall testified to the following: Nall declined Soto’s request to come outside; Nall

closed the door; Soto and Hughes entered the apartment and walked into living room;

Mr. Nall was unarmed; Nall turned around to face Soto; Soto fired the taser without

warning; the taser barbs struck Mr. Nall in the chest; and Mr. Nall immediately dropped

to the floor. It is undisputed that a shock was administered for 21 seconds. (R. Nall

Depo, Doc. 34-1, pp. 72-76). There is also evidence that during this time, Mr. Nall’s


18

arms were rigid, he was convulsing uncontrollably, and he was foaming at the mouth.

While Officer Soto seemed to have believed that the taser was not functioning properly,

Officer Collins was aware that it was. Collins stated that before he had even entered the

apartment, he could heard the “popping” of the taser, and Mrs. Nall claims to have

heard the taser emitting a “buzzing” sound. (Collins Depo., Doc. 42, p. 39; R. Nall Depo,

Doc. 34-1, pp. 72-76). It is undisputed that when the taser is being deployed it makes a

very loud distinctive sound as it is outputting electrical current. As a consequence, a jury

could reasonably conclude that Soto knew that Nall had been struck by the taser barbs

and knew that he was receiving a shock for the entire 21 second duration.

The facts are also in dispute as to whether Mr. Nall continued to resist throughout

the officers’ attempts to restrain him. According to Officer Soto, during the 21 seconds

(or at least a portion of the 21 seconds for which Soto claims to have been present) that

Mr. Nall was being shocked, he refused to put his arms behind his back, he attempted

to stand, and he resisted the officer’s other attempts to restrain him. (Soto Aff., Doc. 32-

3, ¶31). Officer Soto also states that in other instances he had seen suspects fight

through taser applications. (Soto Aff., Doc. 32-3, ¶30). He believed that Mr. Nall was

doing just that. (Soto Aff., Doc. 32-3, ¶30). In the Court’s view, the plaintiffs have

provided sufficient evidence to challenge these assertions. The plaintiffs maintain that

Mr. Nall was not willfully resisting; rather, they contend that he was physically unable to

comply because of the effects of the taser. The plaintiffs indicate, and the defendants

concede, that the taser training materials state that an individual being tasered is often

unable to control his arms. (Doc. 39-11). According to the training manual, the subject


19

can “go rigid during incapacitation.” (Doc. 39-11). The plaintiffs also provide evidence

indicating that 87% of the human subjects tasered in the back were unable or had

severe difficulty completing physical tasks while subjected to the effects of a taser.

(Doc. 54-4, pp. 6-7).

In this instance, Officer Hughes observed that Mr. Nall’s arms had become rigid

during the 21 second interval. (Hughes Depo, Doc. 44, pp. 32-33). And consistent with

the scientific literature, he admitted that Mr. Nall may have been physically incapable of

compliance at that time. (Hughes Depo, Doc. 44, p. 33). Officer Collins also admitted

that Mr. Nall may not have been physically capable of obeying their commands. (Collins

Depo, Doc. 42, p. 52). In addition, one of the Nall’s guests that evening, Robin

McKenzie, observed that Mr. Nall was unable to put his hands behind his back

“because of the shock.” And, Mrs. Nall testified that “he wasn’t resisting, he was

convulsing.” Therefore, the plaintiffs have provided sufficient evidence to create a

factual dispute as to whether Mr. Nall was fighting through the first taser application and

resisting arrest.

Finally, it is undisputed that Officer Soto applied the taser for an additional 5

seconds. The defendants claim that he did so because Mr. Nall continued to resist even

after the first 21 seconds. In the Court’s view, the facts are in dispute as to whether this

was the case. Given the evidence of Mr. Nall’s physical state and his inability to comply

throughout the first application, the Court is reluctant to accept the defendants’ claim

that Mr. Nall continued to resist and that the second application was objectively

reasonable.


20

Based on the evidence discussed above, it is the Court’s opinion that the

plaintiffs have established facts, which, if accepted by a jury, demonstrate that Mr. Nall’s

clearly established rights were violated. For a right to be clearly established, “[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Russo v. City of Cincinnati, 953

F.2d 1036, 1042 (6th Cir.1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639

(1987)). “Although it need not be the case that ‘the very action in question has been

previously held unlawful, . . . in the light of pre-existing law the unlawfulness must be

apparent.’ ” Id. (quoting Anderson, 483 U.S. at 640). An action's unlawfulness can be

apparent from direct holdings, from specific examples described as prohibited, or from

the general reasoning that a court employs. Hope v. Pelzer, 536 U.S. 730, 739-41

(2002).

In this instance, the question is whether an intoxicated misdemeanant, who had

not been placed under arrest and who had neither fled nor resisted, had a right not to be

tased twice in his own home for a total of 26 seconds, as of 26 June 2010. Review of

the case law answers the question in the affirmative.

The Sixth Circuit has observed that “the right to be free from physical force when

one is not resisting the police is a clearly established right.” Wysong, 260 Fed.App’x at

856. In this case, based on the plaintiffs’ version of events, the most that can be inferred

is that Mr. Nall was passively resisting when he failed to produce his hands for cuffing.

Even this is a stretch, however, since he may have been physically incapable of

compliance. In the Court’s view, Mr. Nall’s interest in being free from a prolonged taser


3 The Court rejects the defendants’ contention that other potential crimes, includingresisting arrest, assault, menacing, and unlawful restraint, should inform theanalysis. As described supra, pp. 10-19, the facts underlying these crimes are indispute.

21

application clearly outweighs law enforcement’s interest in subduing a non-resisting

suspect. See Shreve v. Jessamine Cnty. Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006)

(suspect’s interest in being free from multiple baton strikes to the head outweighed

government interest in ending suspect’s passive resistance). Further, law enforcement’s

interest is diminished in this instance, because the crime at issue, disorderly conduct, is

relatively minor.3 See Thacker v. Lawrence County, 182 F. App’x 464, 472 (6th Cir.

2006) (“The crime of disorderly conduct is not a violent or serious crime, and this fact

weighs in favor of using less force in arresting [a suspect].”).

Further, the Sixth Circuit has specifically held that “the gratuitous or excessive

use of a taser [ ] violate[s] a clearly established constitutional right.” Landis v. Baker,

297 F. App'x 453, 463 (6th Cir. 2008) (citing Hickey v. Reeder, 12 F.3d 754, 757 (8th

Cir. 1993) (“a stun gun inflicts a painful and frightening blow, which temporarily

paralyzes the large muscles of the body, rendering the victim helpless” and its use

without a legitimate reason might violate the 8th amendment); see also Kijowski v. City

of Niles, 372 F. App'x 595, 601 (6th Cir. 2010) (police officer “could not reasonably have

believed that use of a Taser on a non-resistant subject was lawful.”). In Landis, the court

held that a suspect’s clearly established constitutional rights were violated, when

officers tasered him three times in succession, using drive stun mode, where the

suspect had already been restrained. Landis, 297 F. App’x at 463. While the facts of

that case appear even more egregious than those of this case, since the suspect was


22

face down in a pool of water, it nonetheless should have put the defendants on notice

that tasering a suspect for a total of 26 seconds, where the suspect had not fled,

resisted, or posed a safety threat, would violate a constitutional right.

This right should have been apparent from analogous cases cited by the plaintiff

as well. For instance, in Shreve, a panel of the Sixth Circuit held that striking an

incapacitated suspect multiple times with a baton was a violation of a clearly established

right. Shreve, 453 F.3d at 687. In Baker v. City of Hamilton, 471 F.3d 601 (6th Cir.

2006), officers violated a clearly established right when they struck a compliant suspect

in the head with an asp. The Court disagrees with the defendants’ argument that these

cases do not clearly delineate Mr. Nall’s rights since they do not involve a taser. These

cases are sufficiently analogous because they teach that it is objectively unreasonable

to use gratuitous force on a compliant suspect who did not pose a safety risk to others.

Finally, while the defendants point to the chaos and commotion inside the

apartment both before and after their entry, “general bedlam does not necessarily justify

the use of force against any particular individual.” Kijowski, 372 F. App'x at 600. And,

“[e]ven if a situation is ‘tense, uncertain, and rapidly evolving,’ that does not innoculate

an officer from a charge that he crossed the line from subduing an individual to

assaulting him.” Lawler v. City of Taylor, 268 Fed.Appx. 384, 387 (6th Cir. 2008)

(quoting Graham, 490 U.S. at 397). Although it is undisputed that Mr. Nall was, as the

defendants put it, “sweaty, shirtless, intoxicated, agitated, and argumentative,” they

provide no legal precedent that would justify an extended taser application on a suspect

in such a condition, where the suspect is not resisting and posed no safety risk.


23

Therefore, the plaintiff has provided facts by which a rational jury could find that

Mr. Nall’s clearly established constitutional rights were violated.

B. Municipal Liability

The plaintiffs also maintain that the City of Painesville should be held liable for

the actions of Officer Soto. A municipality such as Painesville cannot be held liable

under § 1983 on a theory of respondeat superior. Rather, a plaintiff must prove that the

municipality’s policy or custom caused the injury. Monell v. Dept. Of Soc. Sec. Srvcs.,

436 U.S. 658, 690-91 (1978). In this instance, the plaintiffs approach this issue from two

angles, arguing first that a failure to train on the part of Painesville “amounts to a

deliberate indifference to the rights of persons with whom the police come in contact,”

City of Canton, Ohio v. Harris, 498 U.S. 378, 388 (1989); and second that the city

ratified Officer Soto’s unconstitutional actions. Under either approach, the plaintiffs

argue they can prove that it was Painesville’s policy or custom that caused Mr. Nall’s

injuries. As discussed below, the plaintiffs have failed to demonstrate Painesville’s

liability on a failure to train theory. However, the Court concludes that the plaintiffs’

ratification theory has merit.

a. Failure to Train

In order to succeed on a Section 1983 claim based on a failure-to-train theory,

the plaintiff must show that (1) the training was inadequate for the tasks performed; (2)

the inadequacy was the result of the municipality's deliberate indifference; and (3) the


4 Most notably, in the Court’s view, Officer Soto did not receive proper trainingsince he now plainly admits that he did not understand how to use his taser.Officer Soto mistakenly believed that the device would automatically stopdischarging electricity after 5 seconds even though the trigger was depressed.This misunderstanding was not isolated to Officer Soto, since Chief Hageradmitted that he was aware of a number of Painesville police officers who heldthis misconception. It is reasonable to infer that this widespreadmisunderstanding among officers came as a result of inadequate training.

24

inadequacy was closely related to or actually caused the injury at issue. Ellis v.

Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006).

It is the plaintiffs’ burden to demonstrate that training was inadequate. Harvey v.

Campbell Cnty., Tenn., 453 F. App'x 557, 566 (6th Cir. 2011). In the present case, the

plaintiffs set forth sufficient evidence to show that training in the use of the taser by

Painesville was inadequate in a number of respects.4 The problem for the plaintiffs,

however, is that they have failed to show that the inadequacy of the training program

resulted from a “deliberate indifference” on Painesville’s part. There are two ways the

plaintiffs could have done so. First, they “could [have] show[n] deliberate indifference

through evidence of prior instances of unconstitutional conduct demonstrating that the

[municipality] had notice that the training was deficient and likely to cause injury but

ignored it.” Harvey v. Campbell Cnty., Tenn., 453 F. App'x 557, 562-63 (6th Cir. 2011)

(citing Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008). “Alternatively,

plaintiffs could show deliberate indifference through evidence of a single violation of

federal rights, accompanied by a showing that the [municipality] had failed to train its

employees to handle recurring situations presenting an obvious potential for such a

violation.” Id.


25

In the present case, the plaintiffs fail to address either alternative, and the Court

is left with little choice but to reject their argument. Although it appears that Chief Hager

was aware that the training program was deficient with respect to the apparently

widespread misunderstanding that the taser would stop discharging electricity after five

seconds even if the trigger remained depressed, there is no evidence that prior

instances of unconstitutional conduct had occurred as a result of this deficiency. It is not

sufficient that Painesville knew the training to be inadequate; rather the plaintiff must

provide evidence of “[a] pattern of similar constitutional violations by untrained

employees . . . to demonstrate deliberate indifference.” Connick v. Thompson, 131 S.

Ct. 1350, 1360 (2011). The plaintiffs have failed to demonstrate that Painesville was

deliberately indifferent to the inadequacies of its training program.

b. Ratification

The plaintiffs alternatively, and successfully, argue that Painesville may be liable

for excessive force on a ratification theory. A municipality ratifies – and therefore

“causes”– the unconstitutional acts of its employees, when it fails to meaningfully

investigate and punish allegations of unconstitutional conduct. See Leach v. Shelby

County Sheriff, 891 F.2d 1241 (6th Cir.1990); Marchese v. Lucas, 758 F.2d 181 (6th

Cir.1985); To prove liability by ratification, the plaintiffs must show that “(1) a final

municipal policymaker approved an investigation . . . (2) . . . so inadequate as to

constitute a ratification of the[ ] alleged” constitutional violation. Wright v. City of Canton,

Ohio, 138 F. Supp. 2d 955, 966 (N.D. Ohio 2001)


26

In this instance, there is no question that an investigation was conducted and that

it was approved by Chief Hager, a final municipal policymaker. The question, therefore,

is whether the investigation was so inadequate to constitute a ratification of Officer

Soto’s actions.

Chief Hager ordered Lieutenants Lynch and Waterman to conduct an

investigation, which the defendants describe as follows:

Lynch came up with issues that needed to be addressed and looked into it furtherfrom the reports of the involved officers. Lynch and Hager discussed gettinginformation from Soto’s taser to determine whether a policy violation hadoccurred, or whether there was a training issue involved in the incident. Hagertasked Lynch and Waterman with gathering all the necessary informationbecause Lynch had the ability to get the taser information from the unit andWaterman had the ability and flexibility with his schedule to talk to the officers.There was a coordinated effort to investigate whether discipline was warranted.

Hager came to his decision not to discipline Officer Soto based on his review ofthe incident report, conversations with Lynch and Waterman on what they foundor what they learned, and statements from witnesses.

(Doc. 60, p. 21). In the Court’s view, Painesville failed to meaningfully investigate

the Nall incident. Given the outcome of this police encounter and the inordinate length

of time that Mr. Nall was tasered, it was incumbent on Painesville to come to a clear

understanding of what happened that night. The plaintiffs provide two pieces of

evidence showing that it did not. First, as noted by the plaintiffs, Lt. Lynch did not listen

to a recording of the 911 call placed during the incident by Robin McKenzie, one of the

Nalls’ guests. Second, Painesville failed to conduct any forensic analysis that would

confirm Officer Soto’s claim that Mr. Nall was retreating behind the apartment door

when the taser barbs struck him in the chest. As noted supra, the plaintiffs present

evidence showing that a jury may find it difficult to reconcile Officer Soto’s claim with the


27

actual, physical configuration of the Nall apartment. Further, Ms. McKenzie’s

contemporaneous call to 911 might have resolved some of the inconsistencies in the

parties’ respective stories. As Lt. Lynch himself noted, the 911 call “could be useful in

the proper situation.” (Doc. 34-5, p. 62). In light of the severity of the outcome of this

incident, it is the Court’s opinion that this was the proper situation. These lapses in

conjunction with an absence of any written records relating to the investigation seriously

call its adequacy into question.

Painesville, for its part, argues that it is not liable because a municipality ratifies

unconstitutional conduct only where it “completely fails” to investigate, under Marchese

v. Lucas, 758 F.2d 181, 188-89 (6th Cir. 1985). The Court disagrees. Although there

was a complete failure to investigate the excessive force claims in Marchese, that case

did not set a limit, as such, to this theory of liability, and courts of this jurisdiction have

not been so constrained. For instance, the Wright court concluded that a police

investigation subsequent to allegations of excessive force was inadequate, where an

investigation was conducted and relevant officers were interviewed, but the investigator

critically failed to interview the emergency room doctor who had initially examined the

plaintiff and reported the plaintiff’s injuries. Wright, 138 F.Supp. 2d 966-67. The Wright

court accordingly held that this investigation was “not designed to discover what actually

happened.” Id. at 966.

In another excessive force case, Rush v. City of Mansfield, 771 F. Supp. 2d 827

(N.D. Ohio 2011), there was an investigation following allegations of excessive force.

The court concluded that this investigation was inadequate, because the investigator

“failed to interview any relevant law enforcement official” and instead “allowed the police


5 The plaintiffs do not oppose the defendants’ claim that Officer Tuttle wasnot present while Mr. Nall was being tasered. Therefore, summaryjudgment will be granted as to the plaintiffs’ claim that Officer Tuttle failedto protect Mr. Nall from excessive force.

28

officers to prepare statements a few days later.” The court also concluded that the

investigator made no attempt to determine whether it was appropriate to use a SWAT

team without any independent investigation ahead of time. Id. at 863.

The present case is on all fours with Wright and Rush. Similar to those cases,

Painesville failed to investigate facts that are critical to understanding the event in

question. By overlooking the 911 tape and the inconsistencies between Officer Soto’s

claims and the physical layout of the Nall apartment, Painesville conducted a one-sided

investigation “not designed to discover what actually happened.” Therefore, Mr. Nall’s

excessive force claims may proceed against Painesville.

C. Failure to Protect from Excessive Force

The plaintiffs maintain that Officers Hughes, Collins, and Tuttle are liable for their

failure to protect Mr. Nall from Soto’s application of force.5 Under certain circumstances,

police officers can be held liable for failure to protect a person from the use of excessive

force. See Durham v. Nu'Man, 97 F.3d 862, 866 (6th Cir.1996). A police officer who fails

to act to prevent the use of excessive force may be held liable when (1) the officer

observed or had reason to know that excessive force would be or was being used, and

(2) the officer had both the opportunity and the means to prevent the harm from

occurring. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).

In the present case, the plaintiffs have presented evidence by which a rational

jury could conclude that Officers Hughes and Collins failed to protect Mr. Nall from


29

excessive force. As described above, the facts viewed in favor of the plaintiffs establish

that Officer Soto’s use of force was not reasonable under the circumstances. Officer

Hughes was present while Soto applied the taser to Mr. Nall, and Officer Collins was

present for part of that time. (Doc. 44, p. 26; Doc. 42, pp. 39-40). Officer Collins stated

that he knew electricity was flowing, because he heard the device making a distinctive

clattering sound. (Doc. 42, p. 39). While the taser was being administered, both officers

were attempting to wrestle Mr. Nall’s arms into a position where he could be

handcuffed. Both conceded that at that time Mr. Nall may not have been capable of

responding to a verbal command to put his hands behind his back. During this time, Mr.

Nall was reportedly convulsing and foaming at the mouth. Based on this evidence, the

officers observed or had reason to know that excessive force was being used. Further,

although it is not exactly clear at what point during the tasering that Officer Collins

entered the apartment, there is reason to believe that both officers had the opportunity

and means to prevent Soto’s prolonged application of force.

D. Warrantless Entry

Where, as here, the police enter a private residence without a warrant, their

actions are presumed unreasonable under the Fourth Amendment to the United States

Constitution. Payton v. New York, 445 U.S. 573, 586 (1980). However, a warrantless

entry may be justified by exigent circumstances. There are four general categories of

exigent circumstances: (1) hot pursuit of a fleeing felon, (2) imminent destruction of

evidence, (3) the need to prevent a suspect's escape, and (4) a risk of danger to the

police or others. United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994).


30

In this case, the defendants argue that the hot pursuit exception applies. “[T]he

key to the hot pursuit exception is ‘that a suspect may not defeat an arrest which has

been set in motion in a public place ... by the expedient of escaping to a private place.’”

United States v. Santana, 427 U.S. 38, 43 (1976). “Typically, hot pursuit involves a

situation where a suspect commits a crime, flees and thereby exposes himself to the

public, attempts to evade capture by entering a dwelling, and the emergency nature of

the situation necessitates immediate police action to apprehend the suspect.”

Cummings v. City of Akron, 418 F.3d 676, 686 (6th Cir. 2005).

In Santana, the police spotted an individual suspected of a drug crime standing in

the doorway to her home with a brown paper bag in her hand. Santana, 427 U.S. at 40.

The officers approached, identifying themselves, and the suspect retreated into the

vestibule of her home. Id. The officers followed her inside, apprehended her, and

discovered drugs in the paper bag. Id. at 40-41. In determining whether the arrest was

justified, the Court decided that by standing at the threshold of her home, the suspect

“was as exposed to public view, speech, hearing, and touch as if she had been standing

completely outside her house.” Id. at 42 (citing Hester v. United States, 265 U.S. 57, 59,

(1924). As a consequence, the Court held that the suspect had no reasonable

expectation of privacy at that moment. Id. The Court further determined that officers’

entry into the home without a warrant was justified by the doctrine of “hot pursuit,”

because there was a reasonable expectation that the suspect would destroy evidence if

the police did not act quickly. Id. at 42-43. The Court held that the arrest was justified.

In Cummings, a panel of the Sixth Circuit, distinguished Santana. In that case,

the suspect opened his door slightly at the request of the police. Cummings, 418 F.3d at


31

679. Wishing to end his conversation with the police, the suspect attempted to close the

door. Id. He was prevented from doing so, however, because the officer had stuck his

foot in the doorway. Id. The officers pushed the door open and entered. Id. The suspect

was arrested after officers struck him with fists and batons and sprayed him with pepper

spray. Id. at 680. In considering the constitutionality of the warrantless entry, the

Cummings court concluded that the suspect had not exposed himself to the public,

because he opened his door only slightly and in response to the police. Id. at 686. The

court reasoned that “unlike the situation in Santana, [the officers] did not attempt to

arrest [the suspect] until after he tried to shut the door, at which point he clearly

indicated that he did not wish to be exposed to the public.” Id.

The facts of this case are largely indistinguishable from Cummings, in that Mr.

Nall opened his door at the request of the police, explained that he did not want to talk

to them, and attempted to close the door. Also like Cummings, Officer Soto stuck his

foot in the doorway, and attempted to arrest Mr. Nall. Therefore, as was the case in

Cummings, the hot pursuit exception does not apply here because the arrest did not

begin in a public place. And, the exception is further inapplicable because it depends on

the existence of an underlying felony. Id. (“[I]f there is no underlying felony, the ‘hot

pursuit of a fleeing felon’ exception to the warrant requirement is untenable.”). In this

case, there was no felony. The underlying charge was disorderly conduct, a

misdemeanor. Finally, the need to act quickly which existed in Santana, is not present

here. As described above, the facts are in dispute as to whether Mr. Nall posed a safety

threat to anyone.


32

E. Lack of Probable Cause to Arrest

It is undisputed that during the incident, an emotional Mrs. Nall was cursing and

screaming at the officers despite their orders that she stop. They arrested her for

disorderly conduct. She was charged under Ohio Revised Code § 2917.11(A)(2), which

states that “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to

another by . . . [m]aking unreasonable noise or an offensively coarse utterance, gesture,

or display or communicating unwarranted and grossly abusive language to any person.”

The charge was ultimately dismissed in municipal court. Mrs. Nall contends that there

was no probable cause to arrest for this offense.

The defendants seek qualified immunity and argue that probable cause to arrest

did exist. Specifically, they assert that Mrs. Nall continued to scream at officers even

after she was ordered to stop several times; that she got off the couch several times

and approached the officers, contrary to their orders; and that they felt inconvenienced,

annoyed, and alarmed by Mrs. Nall as a result. Mrs. Nall does not dispute that she

yelled at the officers, but she maintains that she never moved from the couch or

approached the officers. Therefore, because the facts are viewed in favor of the non-

moving party, it is assumed that Mrs. Nall remained seated on the couch as she yelled

at the officers.

To determine whether the officers had probable cause to arrest Mrs. Nall on

these facts, the Court “must look to the law of the jurisdiction at the time of the

occurrence.” Ingram v. City of Columbus, 185 F.3d 579, 594 (6th Cir. 1999). The Court

considers whether at the time of arrest “the facts and circumstances within [the officers’]

knowledge and of which they had reasonably trustworthy information were sufficient to


33

warrant a prudent man in believing that the [arrestee] had committed or was committing

an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). In Ohio, a police officer does not

reasonably feel inconvenience or annoyance when confronted by “an individual[ ] yelling

in an outdoor, public place,” because police officers “must handle rowdy individuals on a

daily basis.” State v. Smith, 2002-Ohio-5994, 150 Ohio App. 3d 45, 49, 779 N.E.2d 776,

779 (2002). In addition, “under most circumstances, cursing at an officer does not in and

of itself constitute disorderly conduct unless it was a situation where appellant's

language was likely to incite violence or encourage disobedience to legitimate police

orders.” State v. Robison, 83 Ohio App. 3d 337, 340, 614 N.E.2d 1109, 1111 (1992).

In the present case, it is undisputed that Mrs. Nall was yelling and cursing. As the

above cases point out, this is generally not enough to create probable cause to arrest.

Other than Officer Hughes vague assertion that he subjectively felt “threatened” by

everyone in the apartment, there is nothing to suggest that Mrs. Nall in particular said

anything threatening to the officers or that her language was likely to “incite violence or

encourage disobedience to legitimate police orders.” Although Mrs. Nall refused to

follow orders and stop yelling, there is a question as to whether those police orders

were “legitimate,” since the facts are in dispute as to whether the officers’ presence in

the apartment was legally justified.

Further, for Mrs. Nall’s conduct to be construed as “disorderly,” her yelling had to

be unreasonable and to have recklessly caused inconvenience or annoyance to the

officers. Since the officers’ presence in the apartment may have been legally unjustified

and the officers’ use of force on Mr. Nall may have been objectively unreasonable, a

jury could conclude that Mrs. Nall’s emotional response was anything but unreasonable.


34

The clearly established law of Ohio should have placed the officers on notice that a

disorderly conduct arrest must be predicated on unreasonable noise that recklessly

causes annoyance. In this instance, the facts are unresolved as to whether this was the

case.

The defendants argue that Thacker v. Lawrence Co., 182 Fed.Appx. 464, 2006

WL 1359971 (6th Cir. 2006) controls here. In that unpublished opinion, a panel of the

Sixth Circuit held that an officer had probable cause to arrest for disorderly conduct

under the “turbulent behavior” portion of the statute, where the suspect “(1) raised his

voice, (2) swore at the deputies, (3) continued to swear at them after he was asked to

calm down, and (4) was visibly upset.” Id. at 470. Notably, in this instance, Mrs. Nall

was not charged with “turbulent behavior” under Ohio Revised Code § 2917(A)(1).

Rather, she was charged under § 2917(A)(2), with “making an unreasonable noise,”

which makes Thacker inapplicable in this instance.

However, even if Mrs. Nall had been charged under § 2917(A)(1) and Thacker

did apply, that case is distinguishable from the present case. The difference here is that

the police encounter took place within a private residence, and, as discussed above, it

is not clear whether the officers had a legal right to be there or take the actions they did.

Therefore, the Court is not prepared to rule as a matter of law that Mrs. Nall’s loud

verbal protests made from her couch should have constituted a criminal behavior in the

eyes of a reasonable officer.

The defendants also move for summary judgment on the plaintiffs’ claim that Mr.

Nall was arrested without probable cause. The plaintiffs do not oppose the motion in this

respect. Therefore, summary judgment will be granted as to this claim.


35

F. State Law Immunity

Finally, the individual defendants assert statutory immunity pursuant to R.C.

2744.03. Under Ohio law it is presumed that a municipal employee is immune from

liability. Cook v. Cincinnati, 103 Ohio App. 3d 80, 90, 658 N.E.2d 814, 821 (1995).

However, a plaintiff can rebut that presumption by showing that any of the following

exceptions apply:

(a) the employee’s acts or omissions were manifestly outside the scope of theemployee’s employment or official responsibilities;(b) The employee’s acts or omissions were with malicious purpose, in bad faith,or in a wanton or reckless manner;(c) Civil liability is expressly imposed upon the employee by a section of theRevised Code.

R.C. § 2744(A)(6). In this instance, the plaintiffs argue that the second exception

applies, because the defendants acted “in a wanton or reckless manner.” In Ohio,

wanton or reckless conduct is “perversely disregarding a known risk, or acting or

intentionally failing to act in contravention of a duty, knowing or having reason to know

of facts which would lead a reasonable person to realize such conduct creates an

unreasonable risk of harm substantially greater than the risk necessary to make the

conduct negligent.” Chesher v. Neyer, 477 F.3d 784, 797 (6th Cir.2007).

Viewing the facts in favor of the plaintiffs, the Court concludes that Officer Soto

acted “in a wanton or reckless manner” when he tased Mr. Nall without warning for 26

seconds in his own home, where Mr. Nall had not fled, resisted, or been told he was

under arrest. Officer Soto should have known that his actions created a risk of harm that

was substantially greater than necessary under the circumstances. Although the

defendants contend that the taser is generally considered safe when applied for 10-15


36

seconds, they offer no evidence to show that a longer exposure is safe. Further, the 21-

second application went well beyond Painesville’ policy to reassess the subject after 15

seconds. Therefore, given the disputed facts as to whether Officer Soto’s actions were

objectively reasonable, the question of recklessness is one that must be submitted to a

jury. See Alley v. Bettencourt, 134 Ohio App. 3d 303, 315, 730 N.E.2d 1067, 1075

(1999).

As for Officers Hughes and Collins, the plaintiffs have also established facts

demonstrating a perverse disregard of a known risk. Again, with the evidence construed

in favor of the non-moving party, the officers had reason to know that excessive force

was being used on Mr. Nall, but they failed to intervene despite having had the

opportunity to do so.

The City of Painesville also asserts statutory immunity. Under Ohio law, political

subdivisions are generally not liable for injury or death to persons in connection with the

political subdivision’s performance of a governmental or proprietary function. Howard v.

Miami Twp. Fire. Div., 119 Ohio St. 3d 1, 3 (2008). The plaintiffs do not dispute that the

City of Painesville is a political subdivision under the statute or that their injuries are

connected with Painesville’s performance of a governmental function. While there are

exceptions to this general rule of immunity, the plaintiffs have not demonstrated that any

of them apply in this instance. As a consequence, summary judgment is granted as to

the plaintiffs’ state law claims against the City of Painesville.


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IV. Conclusion

For the above-stated reasons, the defendants’ motion for summary judgment is

granted in part and denied in part. The motion is granted with respect to the claims that

Officer Tuttle failed to protect Mr. Nall from excessive force and that Mr. Nall was

arrested without probable cause. The motion is also granted with respect to the

plaintiffs’ state law claims against the City of Painesville. The defendants’ motion for

summary judgment is denied in all other respects.

IT IS SO ORDERED. /s/Lesley Wells UNITED STATES DISTRICT JUDGE

Date: 13 January 2014


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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT … · 1:10 CV 02883 MEMORANDUM OF OPINION...

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