Westlaw Attached Printing Summary Report
for
ANDERSON, KURT D 3421749 Monday, June 30, 2003 14:34:27 Central
(C) 2003. Copyright is not claimed as to any part of the original work prepared
by a U.S. government officer or employee as part of that person's official
duties. All rights reserved. No part of a Westlaw transmission may be copied,
downloaded, stored in a retrieval system, further transmitted or otherwise
reproduced, stored, disseminated, transferred or used, in any form or by
any means, except as permitted in the Westlaw Subscriber Agreement, the Additional
Terms Governing Internet Access to Westlaw or by West's prior written agreement.
Each reproduction of any part of a Westlaw transmission must contain notice
of West's copyright as follows: "Copr. (C) 2003 West, a Thomson business.
No claim to orig. U.S. govt. works."Registered in U.S. Patent and Trademark
Office and used herein under license: KeyCite, Westlaw and WIN. WIN Natural
Language is protected by U.S. Patent Nos. 5,265,065, 5,418,948 and 5,488,725.
Request Created Date/Time: Monday, June 30, 2003 14:34:00 Central
Client Identifier: ADF
Database: FED6-ALL
Citation Text: 240 F.Supp.2d 731
Query Text: TI("PAUL WALSH")
Lines: 2241
Documents: 1
Images: 0
Walsh v. Erie County Deptartment of Job and Family Services, 240 F. Supp.
2d 731
240 F.Supp.2d 731
(Cite as: 240 F.Supp.2d 731)
United States District Court,
N.D. Ohio,
Western Division.
Paul WALSH, et al., Plaintiffs,
v.
ERIE COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES, et al., Defendants.
No. 3:01CV7588.
Jan. 22, 2003.
Parents, individually and on behalf of their six children, sued county social
workers, county agency that employed social workers, county board of commissioners,
city, city police officers, and city police chief, asserting federal civil
rights claims under ? 1983 and state constitutional and common- law tort
claims. Defendants moved for summary judgment. The District Court, Carr,
J., held that: (1) material issues of fact precluded summary judgment on
plaintiffs' claims alleging unreasonable searches and seizures; (2) defendants
were not liable for violating plaintiffs' state and federal due process rights;
(3) defendants were not entitled to qualified immunity from liability for
alleged Fourth Amendment violations; (4) city could not be held liable under
? 1983; (5) city was immune from liability for state-law claims; (6) factual
issues precluded summary judgment based on state-law immunity on claims for
false imprisonment, false arrest, assault and battery, and intentional infliction
of emotional distress; and (7) defendants were not liable for conspiracy
under either state or federal law.
Motions granted in part and denied in part.
West Headnotes
[1] Searches and Seizures 31.1
349k31.1 Most Cited Cases
Fourth Amendment applied to activities of county social workers who sought
entry into private home, without warrant or probable cause to believe that
child was at risk of imminent harm, in response to anonymous report that
home was cluttered and overcrowded and that children residing there were
developmentally delayed and without proper medical or educational care. U.S.C.A.
Const.Amend. 4.
[2] Searches and Seizures 31.1
349k31.1 Most Cited Cases
Fourth Amendment applies to all officers and agents of the state whose requests
to enter private residence, however benign or well-intentioned, are met by
a closed door. U.S.C.A. Const.Amend. 4.
[3] Searches and Seizures 31.1
349k31.1 Most Cited Cases
There is no social worker exception to the strictures of the Fourth Amendment.
U.S.C.A. Const.Amend. 4.
[4] Searches and Seizures 23
349k23 Most Cited Cases
Fourth Amendment applies to the removal of children from private home by
social workers. U.S.C.A. Const.Amend. 4.
[5] Searches and Seizures 24
349k24 Most Cited Cases
A central tenet of the Fourth Amendment is the requirement that searches
occur only pursuant to warrants issued by a neutral and detached magistrate.
U.S.C.A. Const.Amend. 4.
[6] Searches and Seizures 24
349k24 Most Cited Cases
Warrantless searches are per se unreasonable under the Fourth Amendment,
except in a few carefully delineated instances. U.S.C.A. Const.Amend. 4.
[7] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether putative consent to search
of home given by parent to police officer and county social workers was coerced,
and thus involuntary, precluding summary judgment for social workers and
police officers on unlawful entry claims asserted by parents and their children
under Fourth Amendment and Ohio Constitution. U.S.C.A. Const.Amend. 4; Ohio
Const. Art. 1, ? 14.
[8] Searches and Seizures 171
349k171 Most Cited Cases
A person can waive his or her Fourth Amendment right to be free of a warrantless
search by providing voluntary consent. U.S.C.A. Const.Amend. 4.
[9] Searches and Seizures 180
349k180 Most Cited Cases
Voluntary consent to search requires the absence of any overt act or threat
of force against person from whom consent is sought, the absence of any promises
to that person or any indication of more subtle forms of coercion that might
flaw his judgment, and the absence of any indication that person was a newcomer
to the law, mentally deficient, or unable in the face of custodial arrest
to exercise a free choice. U.S.C.A. Const.Amend. 4.
[10] Searches and Seizures 42.1
349k42.1 Most Cited Cases
Exigent circumstances may justify a warrantless entry into a home. U.S.C.A.
Const.Amend. 4.
[11] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether anonymous complaint reporting
overcrowding and clutter, poor health care for residents' children, and children's
alleged developmental disabilities, social workers' viewing of clutter allegedly
on home's front porch, and residents' attempt to leave premises after refusing
to allow social workers to inspect home provided exigent circumstances justifying
warrantless entry into private home by county social workers and police,
precluding summary judgment for social workers and police on residents' unlawful
entry claim under Fourth Amendment and Ohio Constitution. U.S.C.A. Const.Amend.
4; Ohio Const. Art. 1, ? 14.
[12] Searches and Seizures 40.1
349k40.1 Most Cited Cases
In the criminal context, the reasonableness of a governmental search requires
a showing of probable cause; the probable cause standard, however, is peculiarly
related to criminal investigations and may be unsuited to determining the
reasonableness of searches in which the government seeks to prevent the development
of hazardous conditions. U.S.C.A. Const.Amend. 4.
[13] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether need of county social workers
and police to investigate anonymous report of unsafe conditions at private
home, despite residents' objection to warrantless inspection, outweighed
residents' privacy interest in home, precluding summary judgment for social
workers and police officers on residents' claims for unlawful entry based
on special needs exception to warrant requirements under Fourth Amendment
and Ohio Constitution. U.S.C.A. Const.Amend. 4; Ohio Const. Art. 1, ? 14.
[14] Searches and Seizures 36.1
349k36.1 Most Cited Cases
When warrantless intrusion serves special nee court determining reasonableness
of entry must employ a balancing test that weighs the intrusion on the individual's
interest in privacy against the special needs that support government's program.
U.S.C.A. Const.Amend. 4.
[15] Searches and Seizures 26
349k26 Most Cited Cases
In the Fourth Amendment context, a privacy interest in the home is not minimal
or de minimis. U.S.C.A. Const.Amend. 4.
[16] Constitutional Law 82(10)
92k82(10) Most Cited Cases
Federal Constitution's protection of inherent sanctity of family is not lost
simply if parenting standards are not what some might view as ideal or even
desirable.
[17] Infants 17
211k17 Most Cited Cases
State's statutory framework for investigating allegations of child abuse
and neglect, including statute requiring county agency to investigate report
of known or suspected abuse within 24 hours, did not supersede county social
workers' obligations under Fourth Amendment so as to permit social workers'
warrantless entry into private residence that was subject of anonymous report
of unsafe conditions; report could have been investigated in accordance
with Fourth Amendment, and social worker admitted that she fulfilled her
statutory duty to commence investigation by making appointment with health
inspector to visit home. U.S.C.A. Const.Amend. 4; Ohio R.C. ? 2151.421.
[18] States 4.1(1)
360k4.1(1) Most Cited Cases
State statutes and regulations cannot displace the protections of the United
States Constitution, even when the state acts to protect the welfare of children.
[19] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether scope and intrusiveness of
search of home conducted by county social workers in investigating anonymous
report of unsafe conditions was unreasonable, precluding summary judgment
for social workers and police officers on claims for excessive search asserted
by residents under Fourth Amendment and Ohio Constitution. U.S.C.A. Const.Amend.
4; Ohio Const. Art. 1, ? 14.
[20] Searches and Seizures 23
349k23 Most Cited Cases
For a search to be reasonable, and thus lawful under the Fourth Amendment,
it must be reasonably related in scope to the circumstances which justified
the interference in the first place. U.S.C.A. Const.Amend. 4.
[21] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether residents of home that was
subject of anonymous complaint of unsafe conditions reasonably believed that
they were being detained by county social worker when they sought to leave
residence and whether sufficient basis for detaining residents existed, precluding
summary judgment for social worker on claims of unlawful detention asserted
by residents under Fourth Amendment and Ohio Constitution. U.S.C.A. Const.Amend.
4; Ohio Const. Art. 1, ? 14.
[22] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether police officer arrested homeowner
for obstruction of official business under Ohio law without probable cause,
precluding summary judgment for officer on homeowner's claims for unlawful
arrest under Fourth Amendment and Ohio Constitution. U.S.C.A. Const.Amend.
4; Ohio Const. Art. 1, ? 14; Ohio R.C. ? 2921.31.
[23] Arrest 68(4)
35k68(4) Most Cited Cases
The arrest of a person is quintessentially a "seizure" under the Fourth Amendment.
U.S.C.A. Const.Amend. 4.
[24] Arrest 63.4(1)
35k63.4(1) Most Cited Cases
For a warrantless arrest to be lawful, the officer must have probable cause
to believe that the arrestee has committed or is committing a crime. U.S.C.A.
Const.Amend. 4.
[25] Obstructing Justice 7
282k7 Most Cited Cases
Ministerial
Doing nothing in response to an officer's command is not an "act" under Ohio
statute proscribing acts which hamper or impede police officer. Ohio R.C.
? 2921.31.
[26] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether officer was justified in detaining
and frisking homeowner in the course of efforts by police officers and county
social workers to obtain warrantless entry into home to investigate anonymous
report of unsafe conditions, precluding summary judgment for officer on homeowner's
claims that detention and frisk violated his rights under Fourth Amendment
and Ohio Constitution. U.S.C.A. Const.Amend. 4; Ohio Const. Art. 1, ? 14.
[27] Arrest 63.5(4)
35k63.5(4) Most Cited Cases
Under Fourth Amendment, investigatory stop can be based on reasonable suspicion,
and a showing of probable cause is not required. U.S.C.A. Const.Amend. 4.
[28] Arrest 63.5(4)
35k63.5(4) Most Cited Cases
Agitation and nervousness of homeowner, in the face of government officials'
threats to enter home without a warrant, of being placed under arrest, and
of having his children removed does not give rise to a reasonable apprehension
that violence is likely, so as to justify Terry investigative stop. U.S.C.A.
Const.Amend. 4.
[29] Arrest 63.5(8)
35k63.5(8) Most Cited Cases
To conduct a frisk under Terry standard, officer must have a reasonable suspicion
that detainee is armed and presently dangerous to the officer or to others.
U.S.C.A. Const.Amend. 4.
[30] Constitutional Law 274(5)
92k274(5) Most Cited Cases
[30] Counties 93
104k93 Most Cited Cases
[30] Municipal Corporations 747(3)
268k747(3) Most Cited Cases
County social workers and city police officers were not liable for violating
state and federal due process rights of parents and their children on grounds
that officials deprived parents and children of liberty interest in autonomy
of family, inasmuch as social workers and officers did not seek to disrupt
family relationship or cause permanent, physical loss of association when
officers purportedly arrested father without probable cause and when social
workers and officer obtained purported involuntary consent to warrantless
entry into family's home for purposes of investigating anonymous report of
unsafe conditions; rather, due process claims were derived from, and incidental
to, officials' alleged violations of family members' Fourth Amendment rights.
U.S.C.A. Const.Amends. 4, 14; Ohio Const. Art. 1, ? 16.
[31] Constitutional Law 251.2
92k251.2 Most Cited Cases
To recover under ? 1983 for deprivation of a relationship protected by due
process, plaintiff must prove that the governmental action was directed toward
a protected aspect of that relationship and that any injury was not merely
incidental to the action taken. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. ?
1983.
[32] Constitutional Law 251
92k251 Most Cited Cases
"Due course of law" under the Ohio Constitution has the same meaning as "due
process of law" under the United States Constitution; thus, there is no
difference respecting due process of law under both constitutions. U.S.C.A.
Const.Amends. 5, 14; Ohio Const. Art. 1, ? 16.
[33] Civil Rights 214(2)
78k214(2) Most Cited Cases
Qualified immunity defense is determined on the basis of an objective standard,
whether an officer's conduct violated clearly established constitutional
rights of which a reasonable person would have known.
[34] Civil Rights 214(1)
78k214(1) Most Cited Cases
[34] Civil Rights 214(2)
78k214(2) Most Cited Cases
Court addressing qualified immunity defense must first determine whether
plaintiff has alleged a deprivation of a constitutionally protected right;
if yes, second step is to determine whether the right is so clearly established
that a reasonable official would understand that what he is doing violates
that right.
[35] Civil Rights 214(2)
78k214(2) Most Cited Cases
To find a clearly established constitutional right, for purposes of qualified
immunity defense, a district court must find binding precedent from the Supreme
Court, its Court of Appeals, or itself.
[36] Civil Rights 214(2)
78k214(2) Most Cited Cases
Under qualified immunity analysis, reasonable official test includes a factual
as well as a legal component, that of whether reasonable officer could have
believed that challenged conduct was lawful.
[37] Civil Rights 214(4)
78k214(4) Most Cited Cases
[37] Civil Rights 214(6)
78k214(6) Most Cited Cases
It was not reasonable for county social workers and city police officers
to believe that social workers were exempt from requirements of Fourth Amendment,
given absence of clearly established law to that effect, when, in seeking
to investigate anonymous report of unsafe conditions, they gained warrantless
entry into private home through homeowner's allegedly involuntary consent,
conducted search allegedly outside scope of investigation, and allegedly
unlawfully detained residents; therefore, social workers and officers were
not entitled to qualified immunity from ? 1983 liability for alleged Fourth
Amendment violations. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[38] Civil Rights 214(4)
78k214(4) Most Cited Cases
Fourth Amendment rights of residents of private home into which county social
workers obtained access to investigate anonymous report of unsafe conditions,
without warrant and allegedly without valid consent, were clearly established
at the time of investigation, for purposes of social workers' qualified immunity
defense to ? 1983 liability for alleged violations of such rights, including
right against government entry into home without prior court approval, consent,
or exigent circumstances, right to have scope of search limited by its justification,
and right to freedom of movement absent reasonable suspicion of criminal
or other unlawful activity. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[39] Civil Rights 214(3)
78k214(3) Most Cited Cases
For purposes of qualified immunity defense, bedrock principles that the law
properly presumes are known to every agent of the state who seeks to enter
a private home, even in the name of ensuring a child's welfare, include that
government officers cannot enter a home without either prior court approval,
consent, or exigent circumstances; the scope of a search is limited by its
justification; all persons are entitled to freedom of movement absent reasonable
suspicion of criminal or other unlawful activity; no arrest can be made
without probable cause; and no search of an individual for weapons can be
undertaken unless incident to a lawful arrest or on an articulable basis
for believing he or she is armed and dangerous. U.S.C.A. Const.Amend. 4;
42 U.S.C.A. ? 1983.
[40] Civil Rights 214(4)
78k214(4) Most Cited Cases
County social workers were not entitled to qualified immunity from liability
for their alleged violations of family's Fourth Amendment rights arising
from workers' warrantless entry into private home on grounds that they had
not had training in Fourth Amendment law, inasmuch as standard for qualified
immunity was objective one, based upon what reasonable officer would have
known was required when government official sought entry into private home
to conduct investigation, and, under objective standard, state agent whose
duties took her into private homes was deemed to know about basic constitutional
constraints on her activities. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[41] Civil Rights 214(4)
78k214(4) Most Cited Cases
State law did not require county social workers to gain nonconsensual entry
into private residence to investigate anonymous and conclusory allegations
of dangerous conditions, and thus did not provide basis for extending to
social workers qualified immunity shielding them from ? 1983 liability for
their alleged violations of Fourth Amendment rights of home's residents.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[42] Civil Rights 214(6)
78k214(6) Most Cited Cases
Qualified immunity defense did not apply to shield police officers from Fourth
Amendment violations allegedly arising from actions that they took to assist
social workers in gaining access to private home to investigate anonymous
report of unsafe conditions, inasmuch as reasonable police officer could
not believe that he could arrest someone without probable cause, be unaware
of the elements of state's obstruction of justice statute, detain family
without probable cause or reasonable basis to believe that family's children
were in imminent harm, believe that consent to enter private premises could
be procured by threats and other coercive action, or search individual without
probable cause or reasonable belief that he was armed and dangerous, and
no reasonable officer could have rationally believed that anonymous phone
call provided sufficient justification to take any such actions. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. ? 1983.
[43] Civil Rights 206(4)
78k206(4) Most Cited Cases
Evidence of deliberate indifference need not be direct to support ? 1983
liability for failure to train, but there must be a causal link between failure
to train and constitutional violation, the existence of which is ascertained
by court by inquiring into whether injury would have been avoided had employee
been trained under program that was not deficient in identified respect.
42 U.S.C.A. ? 1983.
[44] Federal Civil Procedure 2491.5
170Ak2491.5 Most Cited Cases
Material issues of fact existed as to whether county agency failed to train
its social workers adequately as to constraints imposed by Fourth Amendment
when social workers were required by their duties to enter private homes,
precluding summary judgment for agency on failure to train claim asserted
under ? 1983 by residents whose Fourth Amendment rights allegedly were violated
by social workers investigating anonymous report of unsafe conditions in
residents' home. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[45] Civil Rights 206(3)
78k206(3) Most Cited Cases
Local governmental bodies may be sued under ? 1983 when the action that is
alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by
that body's officers. 42 U.S.C.A. ? 1983.
[46] Civil Rights 206(3)
78k206(3) Most Cited Cases
Under ? 1983, local governments may be sued for constitutional deprivations
visited pursuant to governmental custom, even though such a custom has not
received formal approval through the body's official decisionmaking channels.
42 U.S.C.A. ? 1983.
[47] Civil Rights 206(2.1)
78k206(2.1) Most Cited Cases
Municipal liability under ? 1983 is not based on the concept of respondeat
superior. 42 U.S.C.A. ? 1983.
[48] Civil Rights 206(3)
78k206(3) Most Cited Cases
County agency could not be held liable under ? 1983 for alleged Fourth Amendment
violations arising from social workers' actions in gaining access, without
warrant, to private residence to investigate anonymous report of unsafe conditions,
given absence of evidence that agency had official policy or custom of depriving
individuals of their Fourth Amendment rights; it was undisputed that residents'
request for search warrant was first time that a county social worker was
confronted with such a situation, and social workers testified that they
were trained to contact agency and law enforcement if denied access for inspection.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[49] Civil Rights 206(3)
78k206(3) Most Cited Cases
Even if city police chief exercised his discretion when he allegedly violated
residents' Fourth Amendment rights in the course of aiding county social
workers in gaining access to residents' home to investigate anonymous report
of unsafe conditions, he did not act as official policymaker for city in
doing so, as required to establish city's ? 1983 liability for alleged Fourth
Amendment violations. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. ? 1983.
[50] Municipal Corporations 747(1)
268k747(1) Most Cited Cases
Pursuant to Ohio's Political Subdivision Tort Liability Act, city was immune
from all state-law claims asserted by residents whose home was inspected,
without search warrant and allegedly without valid consent, in connection
with anonymous report of unsafe conditions, given residents' failure to show
that any statutory exceptions to immunity applied. Ohio R.C. ? 2744.02(A)(1),
(B).
[51] Municipal Corporations 744
268k744 Most Cited Cases
Whether an individual employee is entitled to immunity pursuant to Ohio's
Political Subdivision Tort Liability Act is a question of law. Ohio R.C.
? 2744.03.
[52] Municipal Corporations 744
268k744 Most Cited Cases
Under Ohio's Political Subdivision Tort Liability Act, immunity will attach
to the conduct of political subdivision employees if one of the exceptions
to immunity does not apply. Ohio R.C. ? 2744.03.
[53] Officers and Public Employees 116
283k116 Most Cited Cases
In the context of exception to public employee immunity under Ohio's Political
Subdivision Tort Liability Act, "malice" is the willful and intentional design
to injure or harm another, usually seriously, through conduct that is unlawful
or unjustified. Ohio R.C. ? 2744.03.
[54] Officers and Public Employees 116
283k116 Most Cited Cases
For purposes of exception to public employee immunity under Ohio's Political
Subdivision Tort Liability Act, "bad faith" includes a dishonest purpose,
conscious wrongdoing, or breach of a known duty through some ulterior motive.
Ohio R.C. ? 2744.03.
[55] Officers and Public Employees 116
283k116 Most Cited Cases
In the context of exception to public employee immunity under Ohio's Political
Subdivision Tort Liability Act, wanton misconduct may be described as a degree
greater than negligence, and the conduct is characterized by the failure
to exercise any care toward one to whom a duty of care is owed when the failure
occurs under circumstances for which the probability of harm is great and
when the probability of harm is known to the tortfeasor. Ohio R.C. ? 2744.03.
[56] Officers and Public Employees 116
283k116 Most Cited Cases
An individual acts recklessly, within the meaning of exception to public
employee immunity under Ohio's Political Subdivision Tort Liability Act,
when he does an act or intentionally fails to do an act which is in his duty
to the other to do, knowing or having reason to know of facts which would
lead a reasonable man to realize not only that his conduct creates an unreasonable
risk of physical harm to another, but also that such risk is substantially
greater than that which is necessary to make his conduct negligent. Ohio
R.C. ? 2744.03.
[57] Officers and Public Employees 119
283k119 Most Cited Cases
Because the line between wanton or reckless misconduct and ordinary negligence
can be a fine one, the issue of whether conduct was willful or wanton for
purposes of government employee's entitlement to immunity under Ohio's Political
Subdivision Tort Liability Act should be submitted to the jury for consideration
in light of the surrounding circumstances when reasonable minds might differ
as to the import of the evidence. Ohio R.C. ? 2744.03.
[58] Federal Civil Procedure 2515
170Ak2515 Most Cited Cases
Material issues of fact existed as to whether county social worker blocked
driveway of private home, thereby restraining residents' freedom of movement
without lawful justification, and whether, in doing so, she acted in reckless
manner, precluding summary judgment on residents' state-law false imprisonment
claims based on employee immunity under Ohio's Political Subdivision Tort
Liability Act. Ohio R.C. ? 2744.03.
[59] Federal Civil Procedure 2515
170Ak2515 Most Cited Cases
Factual issues existed as to whether county social worker blocked driveway
of private home, thereby restraining residents' freedom of movement without
lawful justification, and whether, in doing so, she was acting within scope
of employment, precluding summary judgment for county agency and county board
of commissioners on residents' state-law false imprisonment claims on grounds
of political subdivision immunity under Ohio's Political Subdivision Tort
Liability Act. Ohio R.C. ? 2744.02(B)(1).
[60] False Imprisonment 10
168k10 Most Cited Cases
[60] False Imprisonment 22
168k22 Most Cited Cases
To escape liability for false arrest or false imprisonment under Ohio law,
defendant has the burden of proving legal justification for his or her actions.
[61] Federal Civil Procedure 2515
170Ak2515 Most Cited Cases
Material issues of fact existed as to whether parent's arrest in connection
with home inspection being conducted by social workers lacked lawful basis
and whether, in arresting parent, police officers manifested wanton and reckless
abuse of official state power, precluding summary judgment for officers on
parent's false arrest claims on grounds that officers were immune under Ohio's
Political Subdivision Tort Liability Act. Ohio R.C. ? 2744.03.
[62] False Imprisonment 7(1)
168k7(1) Most Cited Cases
The torts of false imprisonment and false arrest in Ohio are dependent on
the lawfulness of the detention under federal constitutional standards.
[63] Federal Civil Procedure 2515
170Ak2515 Most Cited Cases
Material issues of fact existed as to whether police officers arrested and
frisked parent during incident in which social workers gained allegedly unlawful
entry into home to inspect it, whether officers committed torts of assault
and battery in doing so, and whether officers' actions were reckless, precluding
summary judgment for officers on state-law assault and battery claims on
grounds that officers were immune from liability under Ohio's Political Subdivision
Tort Liability Act. Ohio R.C. ? 2744.03.
[64] Assault and Battery 2
37k2 Most Cited Cases
Under Ohio law, an "assault" is an unlawful offer or attempt, coupled with
a present ability, to inflict an injury upon the person of another.
[65] Assault and Battery 2
37k2 Most Cited Cases
A person is subject to liability for battery under Ohio law when he acts
intending to cause a harmful or offensive contact, and when a harmful contact
results. Restatement (Second) of Torts ? 13.
[66] Assault and Battery 2
37k2 Most Cited Cases
For purposes of battery under Ohio law, contact which is offensive to a reasonable
sense of personal dignity is "offensive contact."
[67] Federal Civil Procedure 2515
170Ak2515 Most Cited Cases
Material issues of fact existed as to whether conduct of police officers
and county social workers, in allegedly threatening to take parents' children
away, arresting father, gaining unlawful entry into home, and conducting
unlawful searches of father and home rose to level of extreme and outrageous
conduct, whether mother suffered serious emotional distress as a result,
and whether officers and social workers' actions were malicious or reckless,
precluding summary judgment for officers and social workers on claim of intentional
infliction of emotional distress on grounds that they were immune from liability
under Ohio's Political Subdivision Tort Liability Act. Ohio R.C. ? 2744.03.
[68] Damages 50.10
115k50.10 Most Cited Cases
Under Ohio law, intentional infliction of emotional distress has four elements:
(1) the actor either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress
to plaintiff, (2) the conduct was so outrageous as to go beyond all possible
bounds of decency and was such that it can be considered as utterly intolerable
in a civilized community, (3) the actions were the proximate cause of plaintiff's
psychic injury, and (4) the mental anguish suffered by plaintiff is serious
and of a nature that no reasonable man could be expected to endure it.
[69] Damages 50.10
115k50.10 Most Cited Cases
For purposes of claim of intentional infliction of emotional distress under
Ohio law, "serious emotional distress" is defined as emotional injury which
is both severe and debilitating, and goes beyond trifling mental disturbance,
mere upset or hurt feelings.
[70] Conspiracy 7.5(2)
91k7.5(2) Most Cited Cases
Federal civil rights conspiracy statute requires that there be some racial
or other class-based invidiously discriminatory animus behind the conspirators'
action. 42 U.S.C.A. ? 1985(3).
[71] Conspiracy 1.1
91k1.1 Most Cited Cases
Under Ohio law, the tort of civil conspiracy requires showing of malicious
combination of two or more persons to injure another in person or property,
in a way not competent for one alone, resulting in actual damages.
[72] Conspiracy 21
91k21 Most Cited Cases
Under Ohio law, the ultimate fact of civil conspiracy is solely a question
for the jury, unless the court can say, as a matter of law, that there is
no proof tending to establish a conspiracy.
[73] Conspiracy 5
91k5 Most Cited Cases
An underlying unlawful act is required before a civil conspiracy claim can
succeed under Ohio law.
[74] Conspiracy 1.1
91k1.1 Most Cited Cases
Under Ohio law, "malice" involved in tort of civil conspiracy is that state
of mind under which a person does a wrongful act purposely, without a reasonable
or lawful excuse, to the injury of another.
[75] Conspiracy 13
91k13 Most Cited Cases
In a civil conspiracy under Ohio law, the acts of coconspirators are attributable
to each other.
[76] Conspiracy 7.5(2)
91k7.5(2) Most Cited Cases
Discussion between police officers and county social workers about possibly
charging father with obstruction of official business and authorizing social
workers to sign complaint, due to father's refusal to allow social workers
to inspect home without search warrant in response to anonymous report of
unsafe conditions, did not support claim for civil conspiracy under Ohio
law, particularly when there was no evidence that social workers agreed to
father's arrest as alternative to obtaining search warrant.
*740 Kurt D. Anderson, Fauver, Tattersall & Gallagher, Elyria, OH, for
Plaintiffs.
Gary A. Lickfelt, Sandusky, OH, Joan C. Szuberla, Spengler Nathanson, Toledo,
OH, Terry R. Griffith, Office of the Prosecuting Attorney, Sandusky, OH,
Hilary S Taylor, Weston, Hurd, Fallon, Paisley & Howley, Gary A. Vick,
Jr., Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Defendants.
AMENDED ORDER
CARR, District Judge.
This is a civil rights case arising from the search of the home of the plaintiffs,
Paul and Linda Walsh, who bring individually and as parents on behalf of
their six children, against caseworkers Nycola Darnold and Lana Brown and
their employer, the Erie County, Ohio, Department of Job and Family Services
(ECDJFS), the Erie County Board of Commissioners (the "Board"), the City
of Vermilion, Ohio (the "City"), and three Vermilion police officers, Corporal
Rick Riggs, Sergeant Jeffrey Chandler, and Chief of Police Robert A. Kish.
Plaintiffs assert federal claims under 42 U.S.C. ? 1983 and state constitutional
and common-law tort claims. Jurisdiction arises under 28 U.S.C. ?? 1331
and 1367.
Pending are motions by all defendants for summary judgment. For the following
reasons, summary judgment shall be: 1) granted in part and denied in part
with regard to the caseworkers, ECDJFS, and the Board; 2) granted in part
and denied in part with regard to Sergeant Chandler and Chief Kish; and
3) granted in favor of Corporal Rick Riggs and the City of Vermilion.
BACKGROUND
On February 20, 2001, ECDJFS received an anonymous report of poor conditions
at the plaintiffs' residence; namely, that the home was cluttered and overcrowded
and the children were developmentally delayed and without proper medical
or educational care. ECDJFS assigned defendant social worker Nycola Darnold
to the case. After Darnold learned of the complaint, she telephoned Matthew
Work, an inspector with the Erie County Board of Health, to coordinate a
visit to the Walsh residence.
ECDJFS case workers are trained to assume that any report of adverse conditions
is true, and thereon to begin an investigation. Regardless of whether the
report contains specific information, caseworkers assume that there is an
imminent danger of harm to children on the premises.
Section 2151.421(F)(1) of the Ohio Revised Code states: "the public children
services agency shall investigate, within twenty-four hours, each report
of known or suspected child abuse or child neglect ...." By telephoning Work
and making an appointment for the next day, Darnold began an investigation
into the Walsh home and the condition of the children.
Around 3:45 p.m. the next day, February 21, 2001, Darnold and codefendant
caseworker Lana Brown met Work outside the Walsh home. They approached the
house; as they did so, they observed two five gallon buckets of a drywall
compound, *741 several boxes of clothes, and about 150 TTY devices (deaf
telephones) located on the porch. In their opinion, the presence of these
items confirmed the allegation in the anonymous report that the home was
"cluttered."
When Mrs. Walsh answered the door, Darnold introduced herself and explained
that ECDJFS had received an anonymous complaint that the children were living
in unsafe conditions. Darnold told Mrs. Walsh that it was part of her job
to enter the home and ensure the children's safety. According to Mrs. Walsh,
Darnold stated that the caseworkers would be in trouble with their supervisors
if they were not allowed inside the home to complete the investigation.
Mrs. Walsh refused to let the county workers into her home. She telephoned
her husband, who was at work. Mrs. Walsh took a cordless telephone to the
porch so Mr. Walsh could speak with Darnold. Mr. Walsh asked Darnold if
the county workers had a search warrant.
According to Darnold, she explained to Mr. Walsh that she did not have a
warrant but that she had an anonymous report and she needed to see if the
children were safe in the home within a mandated time frame. According to
Mr. Walsh, Darnold told him that if the plaintiffs refused access, Darnold
would declare an emergency and forcibly remove the children from the home.
Mr. Walsh told Darnold that he was coming home. The county workers left
to make other house visits.
Around 4:30 p.m., Darnold, Brown, and Work returned to the Walsh residence.
According to the caseworkers, when Mr. Walsh arrived, he spoke to an attorney,
who was affiliated with the Home School Legal Defense Association, a national
organization providing advice and counsel to families who, like the plaintiffs,
elect to home school their children. After speaking with the lawyer, Mr.
Walsh told Darnold and Brown that he was not going to let them in the house
without a search warrant. Darnold then called her administrator at ECDJFS
to tell him that Mr. Walsh was demanding a search warrant. Darnold then
called the Vermilion Police.
According to Mr. Walsh, when he again asked for a search warrant, Darnold
insisted that she did not need a warrant and that she could remove the children
if the plaintiffs refused to cooperate. Mr. Walsh also claims Darnold warned
Mr. Walsh that he would face citations for any conditions found in the home.
At some point, the plaintiffs agreed to allow Darnold to observe the children
on the enclosed porch. According to Darnold, observing the children on the
porch in their winter coats did not enable her to assess whether they were
developmentally delayed. Thus, she asserted that she still needed access
to the home to complete her investigation.[FN1]
FN1. The record does not indicate on what basis Darnold could, during the
course of an interview, determine that one or more of the plaintiffs' six
children was developmentally delayed. Nor does it indicate the basis for
that or any other aspect of the anonymous tip.
Defendant Vermilion Police Sergeant Chandler arrived while the caseworkers
were inspecting the children. A short while later, defendant Vermilion Police
Corporal Rick Riggs arrived.
While Darnold was inspecting the children, Sgt. Chandler told Mrs. Walsh
that it was Darnold's job to ensure the children were safe and that the inspection
of the home did not have to be a "big deal" and was "routine."
According to Mr. Walsh, Sgt. Chandler told him: "If you make us go through
the hassle of getting a warrant, rest assured we will cite you for anything
we find in the *742 home." Sgt. Chandler also allegedly warned that if the
plaintiffs did not allow the caseworkers into the home, Mr. Walsh could be
arrested for obstruction of official business.
In light of the plaintiffs' continuing refusal to permit Darnold and Brown
to inspect the home, Darnold again called her supervisor. He advised Darnold
to call an Erie County assistant prosecutor, who, in turn, advised Darnold
to obtain a search warrant. Meanwhile, Mr. Walsh also spoke again to his
attorney.
Between 5:30 and 6:00 p.m., the defendants left the Walsh residence to try
to obtain a search warrant. The parties dispute whether Mr. Walsh knew the
defendants were leaving to obtain a search warrant (and thus, planning to
return). Mr. Walsh asserts that he did not know the defendants planned on
coming back to his home with a search warrant.
While preparing an affidavit for a search warrant at the Vermilion Police
Department, Chief Kish, gave Brown a radio, told her to return to the Walsh
residence, and to let him know if the plaintiffs attempted to leave. Chief
Kish then contacted Judge Wakefield of the Vermilion Municipal Court to obtain
an "administrative" warrant.
Driving Darnold's automobile, Brown returned to the Walsh residence and
parked on the road in front of the house. She observed the children and
parents entering a van; according to Mr. Walsh, the family was leaving to
go to a function at their church.
Brown radioed Chief Kish to notify him that it appeared that the family
was about to leave the premises. She claims that the car was not blocking
the plaintiffs' driveway. Mr. Walsh disputes this assertion, and testified
that the family could not depart because Darnold's car was in front of their
driveway. He claims Brown told him: "If you want to leave, you will have
to ram me!" Brown denies having made this statement. She testified that
she told Mr. Walsh that she was not trying to block him or prevent him from
leaving. She told Mr. Walsh that the police were on their way and they were
obtaining a search warrant.
The police received Brown's call while they were still preparing an affidavit
for a search warrant. After the call, Darnold, Work, Sgt. Chandler, and
Chief Kish returned to the Walsh home.
According to Mr. Walsh, when Sgt. Chandler arrived, he yelled: "This has
gone on long enough! I am taking you into custody for obstruction of official
business." Sgt. Chandler then placed Mr. Walsh spread-eagle on Darnold's
car and frisked him.
When Mr. Walsh stated that he did not want to be arrested, Chief Kish, according
to Mr. Walsh, stated, "Listen, if you just let them into the house, I am
sure we can work that out."
Mr. Walsh understood Chief Kish's statement to mean that he would not be
arrested if he allowed the caseworkers to conduct an inspection of the home.
Walsh claims that he was afraid that if he were arrested, his wife would
be helpless to confront the police. If she refused the search, then she
would also be arrested and the children could be removed from the plaintiffs'
custody. Mr. Walsh claims that because he had no other choice, he allowed
the caseworkers into the house.
Chief Kish acknowledges that charges of obstructing official business were
probably mentioned during his conversation with Mr. Walsh. Chief Kish testified:
"All I knew is I talked to him and I explained that there's steps that could
be taken and I said, 'All we want to do is get in the house,' and we had
a conversation. I don't *743 remember all the words, all the details."
(Kish Dep. at 55).
Darnold and Brown claim they did not hear the conversation between Chief
Kish and Walsh, but it was their understanding that Mr. Walsh consented to
their entry of the home.
Mr. Walsh, Darnold, Brown, Work, and Sgt. Chandler then entered the residence.
Believing Mr. Walsh when he said, in response to whether he had any firearms,
that there were no weapons in the home, Sgt. Chandler remained in the living
room during the county employees' inspection.
Darnold's inspection encompassed cupboards, drawers, the refrigerator, and
locked cabinets, which Mr. Walsh opened at her request. Darnold determined
that there were enough beds for the children, there was an adequate food
supply, and that knives and chemicals were stored out of the children's reach.
She testified, however, that the house was so cluttered, they had to walk
single file.
Work testified that some boxes and paper were stacked on top of an electric
heater, some electrical boxes had exposed wiring, and a water heater vent
pipe was too close to insulation.
Brown took photographs in the house, though Mr. Walsh claims he had asked
her not to.
At the end of the inspection, Darnold concluded that there were no significant
hazards. She told Mr. Walsh that she would send a list of suggestions for
eliminating the clutter. Mr. Walsh was not taken into custody. The defendants
took no further action against them.
In November, 2001, the plaintiffs brought this suit, which asserts six causes
of action.
Count One, brought under ? 1983 and the Ohio Constitution, claims that defendants
deprived plaintiffs of their rights under the United States and Ohio Constitutions
to be secure in their persons and home against unreasonable searches and
seizures and their liberty interests in the integrity and autonomy of their
family.
Count Two, also brought under ? 1983, alleges ECDJFS, the Board, the City,
and Chief Kish failed to provide proper training for the other individual
defendants and to promulgate and implement policies designed to protect the
civil rights of families subject to allegations of child abuse or neglect.
Count Three, likewise brought under ? 1983, alleges that Darnold, Brown,
Corporal Riggs, Sgt. Chandler, and Chief Kish acted pursuant to official
policies when they: 1) conducted the warrantless search of plaintiffs' home;
2) threatened to arrest Mr. Walsh and remove the children if the plaintiffs
did not consent to that search; and 3) blocked the Walsh vehicle and prevented
their departure. According to the complaint, these policies are promulgated
by ECDJFS, the Board, and the City and are deliberately indifferent to the
constitutional rights of families subject to allegations of child abuse or
neglect.
Counts Four, Five, Six, and Seven assert state law claims of false arrest,
assault, battery, and intentional infliction of emotional distress.
Count Eight asserts a federal and state conspiracy charge.
Darnold, Brown, ECDJFS, and the Board ("County Defendants") and Sgt. Chandler,
Corporal Riggs, Chief Kish, and the City ("City Defendants") move this court
for summary judgment on all counts.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who 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 *744 burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The moving party always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions
of the record which demonstrate the absence of a genuine issue of material
fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving
party who "must set forth specific facts showing that there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations.
It is insufficient "simply [to] show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e)
"requires the nonmoving party to go beyond the [unverified] pleadings" and
present some type of evidentiary material in support of its position. Celotex,
477 U.S. at 324, 106 S.Ct. 2548.
In deciding the motion for summary judgment, the evidence of the non-moving
party will be accepted as true, all doubts will be resolved against the moving
party, all evidence will be construed in the light most favorable to the
non- moving party, and all reasonable inferences will be drawn in the non-moving
party's favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.
451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall
be rendered only if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION
? 1983 Claims
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom
or usage, of any State or Territory, ... subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
The individual defendants, in their capacity as ECDJFS caseworkers and police
officers of the City of Vermilion, acted under color of state law. Therefore,
the question is whether their actions violated the plaintiffs's Fourth and
Fourteenth Amendment rights.
A. Fourth Amendment Claims
The Fourth Amendment provides that "the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated" and that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized."
The Supreme Court has rejected the proposition that the Fourth Amendment
offers no protection against government entry into a home unless the entry
is to conduct a "search" for or "seizure" of the fruits or instrumentalities
of crime. In Camara v. Municipal Court, 387 U.S. 523, 526, 87 S.Ct. 1727,
18 L.Ed.2d 930 (1967), the Court found that an administrative inspection
for possible violations of a city's housing code was a "significant intrusion
[ ] *745 upon the interests protected by the Fourth Amendment." The Court
explained:
It is surely anomalous to say that the individual and his private property
are fully protected by the Fourth Amendment only when the individual is suspected
of criminal behavior. For instance, even the most law-abiding citizen has
a very tangible interest in limiting the circumstances under which the sanctity
of his home may be broken by official authority, for the possibility of criminal
entry under the guise of official sanction is a serious threat to personal
and family security.
Id. at 530-31, 87 S.Ct. 1727; see also Michigan v. Tyler, 436 U.S. 499,
506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) ("Searches for administrative purposes,
like searches for evidence of crime, are encompassed by the Fourth Amendment.").
[1] The County defendants' principal argument in opposition to plaintiffs'
? 1983 claims is that the Fourth Amendment was not applicable to the activities
of their social worker employees. In light of the Supreme Court's decision
Wyman, Comm'r of New York Dep't of Social Servs. v. James, 400 U.S. 309,
91 S.Ct. 381, 27 L.Ed.2d 408 (1971), the County defendants argue, entries
into private home by child welfare workers involve neither searches nor seizures
under the Fourth Amendment, and thus can be conducted without either a warrant
or probable cause to believe that a child is at risk of imminent harm.
The defendants misread Wyman.
At issue in that case was a regulation promulgated by the State of New York
as part of its program of providing aid to dependent children (payments to
families who qualified for welfare). The regulation required social workers
to make an initial home visit and subsequent periodic visits for public financial
aid to begin, and thereafter to continue. The Supreme Court concluded that,
in view of the underlying benefits extended to the families receiving welfare,
a caseworker's entry was not a "search by the New York social service agency
in the Fourth Amendment meaning of the term." Id. at 317, 91 S.Ct. 381.
In reaching this conclusion, the Court considered: the public interest
in insuring that state tax monies are spent on their proper objects and encouraging
welfare recipients to return to self-sufficiency; the limited scope of the
entry and its consensual nature; the fact that the recipients were entitled
to advance notice; and the fact that all welfare recipients were subjected
to the entries, which thus were not based on individualized suspicion of
wrongdoing. Id. at 318-23, 91 S.Ct. 381. The Court also pointed out that
there was no suggestion that the caseworker's visit had "as its purpose the
obtaining of information as to criminal activity", id. at 321, 91 S.Ct. 381,
and "is not a criminal investigation, does not equate with a criminal investigation,
and ..., is not in aid of any criminal proceeding." Id. at 323, 91 S.Ct.
381.
In light of these considerations, the Court concluded:
[T]he visitation is not forced or compelled, and [ ] the beneficiary's denial
of permission is not a criminal act. If consent to the visitation is withheld,
no visitation takes place. The aid then never begins or merely ceases, as
the case may be. There is no entry of the home and there is no search.
Id. at 317-18, 91 S.Ct. 381.
The circumstances of the recipients of state aid in Wyman differ significantly
and substantially from those of the plaintiffs in this case. In Wyman the
persons objecting to an intrusion into their homes had affirmatively sought
a benefit to which they were not, ab initio, entitled: financial *746 support
for their children. The state can lawfully condition the receipt of such
benefits on various conditions, including comprehensive disclosure of the
applicant's financial status. In addition, the state can lawfully take steps,
such as periodic inspections of recipients' homes, to ensure that fraud is
not occurring, and that the recipients remain entitled to continued benefits.
Under Wyman, diminished privacy can be deemed a quid pro quo for receiving
state welfare payments. The Court emphasized that the entry in Wyman, in
contrast to the entry in Camara, was not forced or compelled; instead, it
was accepted along with the state's financial support. Id. at 317, 91 S.Ct.
381.
Here, in contrast, the plaintiffs were not seeking anything from or asking
anything of the state. They did not want the state to interfere with them
or their family or to disturb them or their children. They wanted nothing
from the state except to be able to enjoy their fundamental right to be left
alone.
Moreover, the refusal to allow the home inspection in Wyman would result
simply in termination of benefits. In this case, the plaintiffs were threatened
with arrest (indeed, a jury could find that Mr. Walsh had been arrested,
albeit briefly) and removal of their children. These are far more drastic
consequences than a mere loss of state welfare monies.
The inspection in this case, unlike that involved in Wyman, had, as well,
the overtones of a criminal, or at least quasi-criminal investigation. It
was made clear to Mr. Walsh that if he continued to resist the demands for
entry, and such entry were to occur anyway, he could expect to be cited for
any "violations" that might be observed. Though not mentioned by the defendants
during their efforts to persuade the plaintiffs to let them into their home,
there was also the prospect of possible prosecution for contributing to the
abuse or neglect of a child under the broadly worded provisions of O.R.C.
?? 2919.22(A), (B)(1).[FN2]
FN2. O.R.C. ? 2919.22 provides:
(A) No person, who is the parent, guardian, custodian, person having custody
or control, or person in loco parentis of a child under eighteen years of
age or a mentally or physically handicapped child under twenty-one years
of age, shall create a substantial risk to the health or safety of the child,
by violating a duty of care, protection, or support ....
(B) No person shall do any of the following to a child under eighteen years
of age or a mentally or physically handicapped child under twenty-one years
of age:
(1) Abuse the child; ....
The confines of Wyman are narrow. Reyes v. Edmunds, 472 F.Supp. 1218, 1224
(D.Minn.1979) ("The majority opinion in Wyman v. James is not without conceptual
problems, and, in view of the vigorous, persuasive three-judge dissenting
opinions, the holding must be restricted to the boundaries imposed by the
facts to avoid glaring inconsistency with prior search and seizure cases.").
To suggest that the Fourth Amendment plays no role in the circumstances presented
in this case is to extend Wyman far beyond those narrow confines. To accept
the defendants' claims about the reach of Wyman would give the state unfettered
and absolute authority to enter private homes and disrupt the tranquility
of family life on nothing more than an anonymous rumor that something might
be amiss.
[2][3][4] Despite the defendants' exaggerated view of their powers, the
Fourth Amendment applies to them, as it does to all other officers and agents
of the state whose requests to enter, however benign or well- intentioned,
are met by a closed door. There is, the defendants' understanding and assertions
to the contrary notwithstanding, no social worker exception *747 to the strictures
of the Fourth Amendment. See e.g., Roska v. Peterson, 304 F.3d 982, 989
(10th Cir.2002) (warrantless no-knock entry violated Fourth Amendment absent
exigency of imminent danger to child's welfare); Calabretta v. Floyd, 189
F.3d 808, 816 (9th Cir.1999) ( "[Wyman ] does not hold that the social worker
may enter the home despite the absence of consent or exigency."); Lenz v.
Winburn, 51 F.3d 1540, 1547 (11th Cir.1995) (even though social worker's
intrusion was motivated by concern for child's welfare, "and not as part
of any investigation, the search falls within the ambit of the Fourth Amendment.");
Franks v. Smith, 717 F.2d 183, 186 (5th Cir.1983) ("A section 1983 action
can also lie against others, such as social workers, where actions by them
were taken in their official capacity as state employees."); U.S. v. Salome,
1994 WL 542098, *2 (D.Kan.) ("There is no specific 'children's welfare' exception
to the Fourth Amendment's warrant requirement.");Katz v. New Hampshire Div.
of Children and Youth Services, 1994 WL 255230, *8 (D.N.H.); State v. Boggess,
115 Wis.2d 443, 340 N.W.2d 516, 521 n. 9 (1983); State in Interest of A.R.,
937 P.2d 1037, 1040 (Utah App.1997) ("the Fourth Amendment's prohibition
on unreasonable searches and seizures applies whenever an investigator, be
it a police officer, a DCFS employee, or any other agent of the state, responds
to an alleged instance of child abuse, neglect, or dependency."); In re
Diane P., 110 A.D.2d 354, 494 N.Y.S.2d 881, 883-85 (App.Div.1985); In re
Robert P., 61 Cal.App.3d 310, 132 Cal.Rptr. 5, 11-12 (1976); New Jersey
Div. of Youth & Family Servs. v. B.W. & V.W., 165 N.J.Super. 492,
398 A.2d 611, 613 (N.J.Juv. & tlineDom.Rel.Ct.1978).[FN3]
FN3. If defendants' claim that the Fourth Amendment does not apply to their
entries and inspections of private homes were well-founded, they would also
be entitled to remove children without regard to the Fourth Amendment. Just
as, however, the Fourth Amendment restricts entries and inspections into
private homes, it applies also to the removal of children by social workers.
See, e.g., Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir.2000);
Wallis v. Spencer, 202 F.3d 1126, 1137 n. 8 (9th Cir.2000); Tenenbaum v.
Williams, 193 F.3d 581, 601-06 (2d Cir.1999); J.B. v. Washington County,
127 F.3d 919, 928-31 (10th Cir.1997).
Plaintiffs advance four theories on which a Fourth Amendment violation might
be found. They are entitled to proceed on each of their claims.
1. Warrantless Search of the Home/ Unlawful Entry
[5][6] A central tenet of the Fourth Amendment is the requirement that searches
occur only pursuant to warrants issued by a neutral and detached magistrate.
Warrantless searches are per se unreasonable under the Fourth Amendment,
except in a few carefully delineated instances. Katz v. United States, 389
U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is so, because
[a]n essential purpose of a warrant requirement is to protect privacy interests
by assuring citizens subject to search or seizure that such intrusions are
not the random or arbitrary acts of government agents. A warrant assures
the citizen that the intrusion is authorized by law, and that it is narrowly
limited in its objectives and scope. A warrant also provides the detached
scrutiny of a neutral magistrate, and thus ensures an objective determination
whether an intrusion is justified in any given case.
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 621-22, 109 S.Ct.
1402, 103 L.Ed.2d 639 (1989).
Having not complied with the warrant requirement, the defendants must show
that an exception to the warrant requirement *748 authorized their entry
into plaintiffs' home. See United States v. Rohrig, 98 F.3d 1506, 1514-
1515 (6th Cir.1996) ("In the absence of a warrant authorizing the officers'
entry into Defendant's home, the Government must overcome the presumption
that this entry was unreasonable."). A reasonable jury could find that the
defendants could not meet that burden.
a. Consent
[7][8] A person can waive his or her Fourth Amendment right to be free of
a warrantless search by providing voluntary consent. In United States v.
Van Shutters, 163 F.3d 331, 335 (6th Cir.1998), the Sixth Circuit explained:
It is well-established that a warrantless search by law enforcement officials
will be upheld if a detainee has voluntarily consented to the search. The
government has the burden of demonstrating that consent was 'freely and voluntarily
given,' and was not the result of coercion, duress, or submission to a claim
of authority. The proper analysis for determining the voluntariness of a
detainee's consent is to consider the 'totality of the circumstances' of
the alleged consent.
[9] Voluntary consent requires
the absence of any overt act or threat of force against the defendant; the
absence of any promises to the defendant or any indication of "more subtle
forms of coercion that might flaw his judgement"; ... [and] the absence
of any indication that the defendant was a "newcomer to the law, mentally
deficient, or unable in the face of custodial arrest to exercise a free choice;
...."
United States v. Crowder, 62 F.3d 782, 787 (6th Cir.1995) (citations omitted).
Darnold and Brown argue that they understood that Mr. Walsh had given consent
to the search of plaintiffs' home. Under the totality of circumstances in
this case, however, a reasonable jury could find that any putative consent
given by Mr. Walsh was coerced by references to removal of the children if
opposition continued; detention of the family; frisk of the father; the
number, office, and power of the county officials and city officers present;
and the apparent (or, at least threatened) arrest of Mr. Walsh for obstruction
of official business.
Were the jury to find that some or all of these circumstances made the putative
consent involuntary, such consent could not have lawfully opened the door
to the social workers and police officer. In view of the assertions by Darnold
that the she could and would declare an emergency and remove the children,
and Brown's alleged blocking of the plaintiffs' driveway, there was, moreover,
no rational basis for any belief on the social workers' part that Mr. Walsh
had given voluntary consent. Their conduct was, a jury could find, as coercive
in its effects as the statements and actions of the police defendants.
b. Exigent Circumstances
[10][11] Exigent circumstances may also justify a warrantless entry into
a home. The Sixth Circuit has characterized the situations in which warrantless
entries are justified as lying within one of four general categories: 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. Rohrig, 98 F.3d 1506, 1515 (6th Cir.1996);
United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994).
The Supreme Court has most frequently cited the "risk of danger" exigency
for warrantless entries in cases where the government is acting in something
other than a traditional law enforcement capacity. For instance, in Michigan
v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Court
recognized *749 that a "burning building clearly presents an exigency of
sufficient proportions to render a warrantless entry 'reasonable.' " Similarly,
in Camara, the Court noted:
[N]othing we say today is intended to foreclose prompt inspections, even
without a warrant, that the law has traditionally upheld in emergency situations.
See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29
S.Ct. 101, 53 L.Ed. 195 [(1908)] (seizure of unwholesome food); Jacobson
v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643
[(1905)] (compulsory smallpox vaccination); Compagnie Francaise De Navigation
a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 22 S.Ct. 811, 46
L.Ed. 1209 [(1902)] (health quarantine); Kroplin v. Truax,lain 119 Ohio
St. 610, 165 N.E. 498 [(1929)] (summary destruction of tubercular cattle).
On the other hand, in the case of most routine area inspections, there is
no compelling urgency to inspect at a particular time or on a particular
day. Moreover, most citizens allow inspections of their property without
a warrant. Thus, as a practical matter and in light of the Fourth Amendment's
requirement that a warrant specify the property to be searched, it seems
likely that warrants should only be sought after entry is refused unless
there has been a citizen complaint or there is other satisfactory reason
for securing immediate entry.
387 U.S. at 539, 87 S.Ct. 1727 (emphasis supplied).
Defendants argue their entry into the home, even absent voluntary consent,
was reasonable under the circumstances. They point to: the anonymous complaint
about clutter, poor health care, overcrowding, and the childrens' alleged
developmental disabilities; the alleged clutter on the front porch; and
the plaintiffs' attempt to leave. These circumstances, the defendants argue,
created an "emergency situation" that led Darnold and Brown reasonably to
believe the Walsh children were in danger of imminent harm. Thus, their
inspection, they contend, was reasonable under the circumstances.
The circumstances defendants rely on, however, do not provide a showing
of imminent or likely harm sufficient to justify warrantless entry under
the exigent circumstances exception. On the record before the court, the
anonymous tip simply did not provide reason to believe that the children
were at such risk of harm or injury that immediate action was necessary.
The complaint gave no indication of the caller's basis for the allegation--it
might equally have been based on personal observation, neighborhood rumor,
malicious gossip, or personal animosity. The report's anonymity left it,
moreover, without any basis for assessing the caller's veracity.
Observation of the "clutter" on the front porch did not remedy these deficiencies.
At most, it may have suggested that someone in the chain of communication
(the length of which was unknown) may, on some unspecified, and possibly
remote occasion, have seen what he or she considered to be inadequate housekeeping.
Who might have made that observation and formed that conclusion, and when
and under what circumstances he or she did so were, and remain, utterly unknown.
More importantly, there is nothing inherently unusual or dangerous about
cluttered premises, much less anything about such vaguely described conditions
that could manifest imminent, or even possible danger or harm to young children.
If household "clutter" justifies warrantless entry and threats of removal
of children and arrest or citation of their parents, few families are secure
and few homes are safe *750 from unwelcome and unjustified intrusion by state
officials and officers.[FN4]
FN4. Indeed, the trauma of uninvited intruders and the disruption they cause
may well be more harmful to the welfare of a family's children than any amount
of clutter, disarray, or disorder. At least that is, in effect, what plaintiffs
allege in their claim for intentional infliction of emotional distress.
As the Sixth Circuit concluded in Rohrig, "the cases finding exigent circumstances
uniformly cite the need for prompt action by government personnel, and conclude
that delay to secure a warrant would be unacceptable under the circumstances."
98 F.3d at 1517. Defendants have not provided any evidence that the delay
resulting from the time needed to obtain a search warrant would have placed
any of the children at any risk of any harm whatsoever. They have failed
to show that any exigency that justified warrantless entry was necessary
to protect the welfare of the plaintiffs' children. In this case a rational
jury could find that "no evidence indicates that [plaintiffs' children were]
in immediate threat of death or severe physical harm--indeed, the evidence
points to the opposite conclusion" and a lack of "sufficient exigent circumstances
to relieve the state actors here of the burden of obtaining a warrant."
Roska v. Peterson, 304 F.3d 982, 990 (10th Cir.2002).
c. Special Needs
[12][13] In the criminal context, the reasonableness of a governmental search
requires a showing of probable cause. See, e.g., Skinner, 489 U.S. at 619,
109 S.Ct. 1402. The probable cause standard, however, "is peculiarly related
to criminal investigations" and may be unsuited to determining the reasonableness
of searches where the "Government seeks to prevent the development of hazardous
conditions." National Treasury Employees v. Von Raab, 489 U.S. 656, 667-68,
109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (internal quotation marks and citations
omitted).
As the Supreme Court stated in Board of Education v. Earls, 536 U.S. 822,
122 S.Ct. 2559, 2564, 153 L.Ed.2d 735 (2002):
"In limited circumstances, the Government's need to discover such latent
or hidden conditions, or to prevent their development, is sufficiently compelling
to justify the intrusion on privacy entailed by conducting such searches
without any measure of individualized suspicion." Von Raab, 489 U.S. at
668, 109 S.Ct. 1384. Therefore, in the context of safety and administrative
regulations, a search unsupported by probable cause may be reasonable "when
'special needs, beyond the normal need for law enforcement, make the warrant
and probable-cause requirement impracticable.' " Griffin v. Wisconsin, 483
U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).
See also Ferguson v. City of Charleston, 532 U.S. 67, 79, 121 S.Ct. 1281,
149 L.Ed.2d 205 (2001) (stating that public officials can justify warrantless
searches with reference to a special need "divorced from the State's general
interest in law enforcement").
[14] Where an intrusion serves special needs, a court must "employ[ ] a
balancing test that weigh[s] the intrusion on the individual's interest in
privacy against the 'special needs' that support[ ] the program." Ferguson,
532 U.S. at 78, 121 S.Ct. 1281; see also Von Raab, 489 U.S. at 665, 109
S.Ct. 1384 (court is "to balance the individual's privacy expectations against
the Government's interests to determine whether it is impractical to require
a warrant or some level of individualized suspicion in the particular context.").
Defendants urge this court to apply the "special needs" balancing test to
conclude *751 that the plaintiffs' privacy interest in their home was minimal
compared to the county's compelling interest in securing entry over their
objection to determine whether the anonymous report had any validity.
[15] A privacy interest in the home is not minimal or de minimus. The Supreme
Court has long held that citizens have an especially strong expectation of
privacy in their homes. See, e.g.; United States v. United States District
Court, 407 U.S. 297, 312, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ( "[P]hysical
entry into the home is the chief evil against which the ... Fourth Amendment
is directed."); Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190,
2 L.Ed.2d 1332 (1958) ("Such action invades the precious interest in privacy
summed up in the ancient adage that a man's house is his castle.").
[16] In addition, the Supreme Court has recognized the inherent sanctity
of the family and its entitlement to constitutional protection. See, e.g.,
Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)
(citations omitted) ("The integrity of the family unit has found protection
in the Due Process Clause of the Fourteenth Amendment ... the Equal Protection
Clause of the Fourteenth Amendment ... and the Ninth Amendment"). The Constitution's
protection is not lost simply if parenting standards are not what some might
view as ideal or even desirable. See, e.g., Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("The fundamental liberty
interest of natural parents in the care, custody, and management of their
child does not evaporate simply because they have not been model parents....").
[17] Against these fundamental rights, the defendants contend that Ohio's
statutory framework for learning about and investigating allegations of child
abuse and neglect supersede their obligations under the Fourth Amendment.
They point principally to ? 2151.421 of the Ohio Revised Code as authority
for their warrantless entry into and search of the plaintiffs' home.
That statute imposes a duty on county agencies to investigate a report of
known or suspected child abuse within twenty-four hours of receiving the
report.
Defendants, however, cannot read this statute as allowing a warrantless
search under the circumstances in this case. Defendants could have followed
the confines of the statute and investigated the report by following proper
Fourth Amendment procedure.
Furthermore, Darnold admits that by making an appointment with the health
inspector, she commenced an investigation--thus fulfilling her statutory
duty.
[18] To the extent that ? 2151.421(F)(1) and other provisions of the Ohio
Administrative Code provided by the defendants might be viewed as leaving
no role for the Fourth Amendment, defendants' argument cannot be sustained.
State statutes and regulations cannot displace the protections of the United
States Constitution. If that is defendants' premise, it is entirely erroneous,
even when the state acts to protect the welfare of children. Cf, Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001)
(restrictions on tobacco advertising within 1,000 foot radius of a school
impermissibly contravened the First Amendment).
There can be no doubt that the state can and should protect the welfare
of children who are at risk from acts of abuse and neglect. There likewise
can be no doubt that occasions arise calling for immediate response, even
without prior judicial approval. But those instances are the exception.
Otherwise child welfare workers would have a free pass into any home in *752
which they have an anonymous report of poor housekeeping, overcrowding, and
insufficient medical care and, thus, a perception that children may be a
some risk.
This is not to say that the defendants could have done nothing in response
to the phone call. They could, as they did, contact the plaintiffs to request
their help in resolving any questions they may have had as a result of the
phone call. But once the plaintiffs declined to be responsive, the defendants
were obligated by the Constitution to depart, and to leave the plaintiffs
alone and in peace until such time as more information was learned from other,
and more trustworthy sources. If, at that point, the plaintiffs refused
to cooperate, defendants had several options, including filing of an abuse
or neglect complaint and seeking an emergency removal order pursuant to OHIO
R. JUV. PROC. 13. Having elected to forego those options, the defendants,
a reasonable jury could find, violated the Fourth Amendment when they went
into the plaintiffs' home without either a warrant or sufficient justification
to conduct a warrantless entry.
2. Excessive Search
[19][20] Plaintiffs also allege the scope and intrusiveness of defendants'
search exceeded restrictions imposed by the Fourth Amendment. For a search
to be reasonable, and thus lawful under the Fourth Amendment, it must be
"reasonably related in scope to the circumstances which justified the interference
in the first place." New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct.
733, 83 L.Ed.2d 720 (1985).
In addition to observing whatever could be seen in plain view, the defendants
had Mr. Walsh open cupboards, drawers, the refrigerator, and locked cabinets.
The defendants have not met their burden of showing that he did so voluntarily.
A rational jury could, in any event, find that he did so as a result of the
same coercive pressures that would support a finding that his consent to
the entry into the family home was involuntary.
Absent valid consent, a search of cupboards, drawers, the refrigerator,
and locked cabinets was, a rational jury could find, excessive, and exceeded
any legitimate protective purpose that might have been pursued on the basis
of the anonymous phone call. Nothing in that call indicated that the children
were endangered by something, such as drugs or firearms, that might have
been concealed in those areas. There was, accordingly, no basis to look
there, and thereby intensify the intrusion into the plaintiffs' privacy.
Even if the entry could be sustained on the basis of exigent circumstances,
the scope of the ensuing search was, in Fourth Amendment terms, a general
search, conducted at the whim and controlled solely by the discretion of
the defendants. This is precisely the kind of general search, an "exploratory
rummaging in a person's belongings," Coolidge v. New Hampshire, 403 U.S.
443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971), that "the Framers of the
Fourth Amendment most strongly opposed." Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564, (1995) (citing W. Cuddihy,
The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation
at Claremont Graduate School)) (O'Connor, J., dissenting).
Therefore, defendants' motion for summary judgment as to plaintiffs' excessive
search claim is denied.
3. Unlawful Detention
[21] Plaintiffs also allege that, by blocking their vehicle, defendants
prohibited their departure and unlawfully detained their freedom of movement
in violation of the Fourth Amendment.
*753 The Supreme Court held in United States v. Mendenhall, 446 U.S. 544,
554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980):
[A] person has been "seized" within the meaning of the Fourth Amendment only
if, in view of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave. Examples of circumstances
that might indicate a seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen, or the
use of language or tone of voice indicating that compliance with the officer's
request might be compelled.
The Court also stated that a "person is seized only when, by means of physical
force or a show of authority, his freedom of movement is restrained." Id.
at 553, 100 S.Ct. 1870.
Plaintiffs allege that Darnold's vehicle blocking their driveway, combined
with Brown's statement that the police were coming with a search warrant,
caused them reasonably to apprehend that their freedom of movement was curtailed.
A reasonable jury could agree with this contention, and find that the plaintiffs
had been detained.
A reasonable jury could also conclude that there was no sufficient basis
for detaining the plaintiffs, because the detention was based on an entirely
speculative suspicion, rather than articulable facts, that the plaintiffs
intended to flee. Even if the plaintiffs had desired to get away from the
social workers and police officers and their demands that they be allowed
to go into their home without a warrant, the defendants had no legitimate
basis for detaining them. The information on which the defendants were acting--the
anonymous phone call--did not provide a reasonable basis for concluding that
the children were in any imminent danger. Absent such basis, the defendants
could not lawfully control the plaintiffs' freedom of movement. A social
worker cannot place a family under house arrest simply on the basis of an
anonymous report of bad parenting and her observation of "clutter" on a front
porch.
Defendants' motion for summary judgment as to plaintiffs' unlawful detention
claim is denied.
4. Arrest, Unlawful Detention, and Frisk of Mr. Walsh
Plaintiffs also allege that the arrest (or, were a jury to find that he
had not been arrested, the detention) and frisk of Mr. Walsh without a warrant
violated his Fourth Amendment rights.
a. Arrest
[22] Mr. Walsh claims that Sergeant Chandler stated: "I am taking you into
custody for obstruction of official business." Thereafter, Sergeant Chandler
placed Mr. Walsh against defendant Darnold's automobile and gave him a "pat-
down" or frisk. Brown testified: "The officer had said something to the
effect of he was being arrested, or whichever terminology he used." (Brown
Dep. at 37). Brown also testified that Chandler "started to Mirandize him."
(Id. at 38). Darnold testified: "When I arrived .... Mr. Walsh was spread
on my vehicle with an officer patting him down. And I remember overhearing
the officer reading the rights." (Darnold Dep. at 108). This evidence,
if credited despite Sgt. Chandler's contention that he had not arrested Mr.
Walsh, would support a rational jury's finding that Sgt. Chandler had arrested
Mr. Walsh.
[23][24] The arrest of a person is "quintessentially a seizure" under the
Fourth Amendment. *754Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1980). For a warrantless arrest to be lawful, the officer
must have probable cause to believe that the arrestee has committed or is
committing a crime. See, e.g., Criss v. City of Kent, 867 F.2d 259, 262
(6th Cir.1988).
Were the jury to find that Sgt. Chandler had arrested Mr. Walsh, it could
also find that he did not have probable cause to do so for the crime of obstruction
of justice.
Ohio Rev.Code ? 2921.31, entitled "Obstructing official business," provides:
(A) No person, without privilege to do so and with purpose to prevent, obstruct,
or delay the performance by a public official of any authorized act within
the public official's official capacity, shall do any act that hampers or
impedes a public official in the performance of the public official's lawful
duties.
[25] The statute requires some "act that hampers or impedes" a police officer.
Doing nothing in response to an officer's command is not an "act" under ?
2921.31. Columbus v. Michel, 55 Ohio App.2d 46, 47, 378 N.E.2d 1077 (Ohio
App.1978) (refusal to open apartment door not an "act"). In addition, the
officer must be in the performance of an "authorized act." That requirement
cannot be met where the officer's act is not authorized by law. See State
v. Gillenwater, 1998 WL 150354, *5 (Ohio App.) ("we do not believe that the
legislature intended the obstructing official business statute, R.C. 2921.31,
to punish individuals who decide not to submit to a Terry stop and frisk.").
In this case a jury could, moreover, find that there was no lawful basis
for arresting Mr. Walsh because, for the reasons discussed in the preceding
sections of this opinion, there was no lawful authority for the defendants'
actions. At most, the jury could find, Mr. Walsh refused to allow the defendants
to enter without a warrant, and sought to leave with his family. Under the
circumstances of this case, neither act violated Ohio law.
Thus, defendants' motion for summary judgement is denied as to Mr. Walsh's
Fourth Amendment claim based on his arrest for obstructing justice.
b. The Stop or Unlawful Detention
[26] The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), made clear that a detention need not go so far as to
be an actual arrest to be a "seizure" for purposes of the Fourth Amendment.
The Court explained: "It must be recognized that whenever a police officer
accosts an individual and restrains his freedom to walk away, he has 'seized'
that person." The Court elaborated on the definition of a "stop" in Mendenhall:
"a person has been 'seized' within the meaning of the Fourth Amendment only
if, in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave." 446 U.S. at 554,
100 S.Ct. 1870.
[27] An investigatory stop can be based on reasonable suspicion; a showing
of probable cause is not required:
[I]n justifying the particular intrusion the police officer must be able
to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. The scheme
of the Fourth Amendment becomes meaningful only when it is assured that at
some point the conduct of those charged with enforcing the laws can be subjected
to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness
of a particular search or seizure in light of the particular circumstances.
And in making that assessment it is imperative that the facts be judged against
an objective standard: would the *755 facts available to the officer at
the moment of the seizure or the search "warrant a man of reasonable caution
in the belief" that the action taken was appropriate?
Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (citations omitted).
While disputing Mr. Walsh's contention that he was arrested, the City defendants
do not argue that he was not detained, in Fourth Amendment terms, when he
was placed against Darnold's car. They argue, rather that, because Mr. Walsh
seemed very agitated, nervous, and angry, any such detention was lawful.
Sergeant Chandler points out that Mr. Walsh continuously went in and out
of his home, and Sgt. Chandler did not know if Mr. Walsh was doing so to
arm himself with a knife or a gun. Also, Sgt. Chandler claims he was suspicious
when the plaintiffs attempted to leave. By stopping and frisking Mr. Walsh,
Chandler claims he was acting in the best interests of himself, the other
officers, the social workers, and the Walsh family.
In response, plaintiffs assert that Sgt. Chandler acted without reasonable
suspicion, based on legitimate, articulable facts, that Mr. Walsh was about
to commit a crime and was armed and dangerous.
[28] The plaintiffs are correct: Sgt. Chandler points to no facts that
would justify a reasonable officer in the belief that Mr. Walsh was, or was
about to become armed and dangerous. The record evinces no prior acts of
violence, much less armed violence on his part. Agitation and nervousness
in the face of threats to enter a home without a warrant, be placed under
arrest, and have one's children removed does not give rise to a reasonable
apprehension that violence is likely. Had Sgt. Chandler had any actual,
as opposed to speculative, concerns about Mr. Walsh's re-entry into the home
to retrieve a weapon, he could have asked, as he later did on entering the
premises, whether there were any firearms in the house. Had he done so,
he would have been told that there were no guns on the premises--which sufficed
to relieve Sgt. Chandler's apprehensions once he and the social workers were
in the house. Sgt. Chandler remained in the living room while the social
workers, accompanied by Mr. Walsh, conducted their search of the other rooms.
In light of this evidence, a rational jury could find that Sgt. Chandler's
expressed concerns about the possibility that Mr. Walsh was armed and dangerous
were unfounded or not credible. In which case, it could properly return
a verdict in favor of Mr. Walsh on his claim of unlawful detention in violation
of the Fourth Amendment.
Therefore, defendants' motion for summary judgment on this claim is denied.
c. Frisk
[29] Under the Terry standard, to conduct a frisk, the officer must have
a reasonable suspicion that the detainee is "armed and presently dangerous
to the officer or to others." Id. at 23-24, 88 S.Ct. 1868.
As the Court stated in Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct.
338, 62 L.Ed.2d 238 (1979):
The Terry case created an exception to the requirement of probable cause,
an exception whose "narrow scope" this Court "has been careful to maintain."
Under that doctrine a law enforcement officer, for his own protection and
safety, may conduct a patdown to find weapons that he reasonably believes
or suspects are then in the possession of the person he accosted. Nothing
in Terry can be understood to allow generalized "cursory search for weapons"
or, indeed, any search whatever for anything but weapons. The "narrow scope"
of the Terry exception does not permit a frisk *756 for weapons on less than
reasonable belief or suspicion directed at the person to be frisked ....
Mr. Walsh alleges that Sergeant Chandler frisked him while Mr. Walsh was
spread-eagled on Darnold's automobile. As noted above, Sergeant Chandler
argues Mr. Walsh seemed agitated and he did not know if Mr. Walsh had fetched
a knife or a gun in one of his trips in and out of his house. Therefore,
Chandler argues he was acting in the best interests of himself, the other
officers, the social workers, and the Walsh children.
For the reasons enunciated in the preceding section, a jury could find in
favor of Mr. Walsh and against Sgt. Chandler as to this claim. If the detention
was not lawful, neither was the frisk.
Thus, defendants' summary judgment motion as to plaintiffs' claim that Chandler's
frisk violated Mr. Walsh's Fourth Amendment rights is denied.
B. Fourteenth Amendment
[30] The Supreme Court has recognized some of the most important personal
bonds necessary for the protection of individual freedom "are those that
attend the creation and sustenance of a family." Roberts v. United States
Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The Court
has consistently recognized rights involving private family life as worthy
of special constitutional protection. See, e.g., Moore v. City of Cleveland,
431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ("The Constitution
protects the sanctity of the family precisely because the institution of
the family is deeply rooted in this Nation's history and tradition.").
Plaintiffs claim that Mr. Walsh's arrest and detention and ensuing compelled
consent to the search of the family home violated the family's constitutional
interest in the inviolability of their family unit. They assert that the
defendants required Mr. Walsh to choose between his personal freedom and
the inviolability of his family, on the one hand, and consenting involuntarily
to an unconstitutional warrantless search, on the other. Therefore, plaintiffs
assert, the defendants intentionally and unlawfully drove a wedge between
Mr. Walsh and his family to compel him to let them into the family home.
The Sixth Circuit has not delineated the elements of a claim for breach
of the right of family integrity and autonomy. The First Circuit has, however,
concluded that "to establish a violation of a right to familial associational
privacy, the state action must be directly aimed at the parent-child relationship."
Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991). As that court explained
the precedents:
could be divided into two categories of constitutional protections. Under
the first category, substantive due process has been applied to prevent government
interference in certain particularly private decisions. Regarding the second
category, the Court has recognized that there is a liberty interest in "preventing
government interference with the rearing of young children." This second
category is implicated whenever the state directly seeks to change or affect
the parent-child relationship. State action that affects the parental relationship
only incidentally, however, even though the deprivation may be permanent,
as in the case of unlawful killing by the police, is not sufficient to establish
a violation of an identified liberty interest.
Id. (citations omitted).
Plaintiffs allege a deprivation of their liberty interest in the autonomy
of their family. This claim, is, however, derived from and incidental to
defendants' violations of plaintiffs' Fourth Amendment rights. Plaintiffs
have provided no evidence that defendants intentionally acted to diminish
or deprive them of their familial *757 relationship with each other. Thus,
plaintiffs do not have a cognizable claim for interference with the parent-child
relationship because the defendants' conduct was not directed specifically
toward disrupting the family relationship.
Moreover, plaintiffs have not suffered a permanent, physical loss of association.
As the court concluded in Divergilio v. Skiba, 919 F.Supp. 265, 269 (E.D.Mich.1996):
If the Sixth Circuit would be unwilling to recognize a cause of action for
deprivation of the parent-child relationship in a case of wrongful death,
where the relationship has been irrevocably severed incidental to the family
member's death, the Court cannot conceive recognition of the cause of action
for the incidental diminution in quality of the protected relationship alleged
in this case.
[31] Not every tort at common law implicates a constitutional remedy. To
recover under ? 1983 for deprivation of a protected relationship, a plaintiff
must prove that the governmental action was directed toward a protected aspect
of that relationship and that any injury was not merely incidental to the
action taken. Id. Absent a showing of directed state action, there is no
constitutional claim.
Therefore, defendants' motion as to plaintiff's Fourteenth Amendment claim
is granted.
C. Ohio Constitution
Plaintiffs argue the violations of the Fourth and Fourteenth Amendments
of the federal Constitution also violate Article I, ?? 14 and 16 of the Ohio
Constitution.
In State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997), the
Supreme Court of Ohio stated: where the provisions are similar and no persuasive
reason for a differing interpretation is presented, this court has determined
that protections afforded by Ohio's Constitution are coextensive with those
provided by the United States Constitution. The language of Section 14,
Article I of the Ohio Constitution and the Fourth Amendment is virtually
identical. Accordingly, this court has interpreted Section 14, Article I
of the Ohio Constitution as affording the same protection as the Fourth Amendment.
[32] Likewise, "due course of law" under ? 16 of the Ohio Constitution has
the same meaning as "due process of law" under the federal Constitution.
Thus, there is no difference respecting due process of law in the Constitution
of the United States and that of Ohio. 17 Oh Jur Constitutional ? 490 (West
2002).
Because plaintiffs' claims based on the Ohio Constitution use the same analysis
as the Fourth Amendment and Fourteenth Amendment claims noted above, defendants'
motions are therefore denied on the ? 14 claim and granted on the ? 16 claim.
D. Qualified Immunity
[33] The defendants argue that, even if they committed one or more federal
constitutional violations, they are entitled to the defense of qualified
immunity. This defense, as the Supreme Court made clear in Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), is determined on
the basis of an objective standard: namely whether an officer's conduct
violated clearly established constitutional rights of which a reasonable
person would have known.
[34] Under the Harlow standard, a court must first determine whether the
plaintiff has alleged a deprivation of a constitutionally protected right.
Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
If so, "then the second step is to determine whether the right is so 'clearly
established' that a 'reasonable official' would understand that what he is
*758 doing violates that right." Brennan v. Township of Northville, 78 F.3d
11, 1154 (6th Cir.1996) (quoting Anderson v. Creighton, 483 U.S. 635, 640,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
[35] To find a clearly established constitutional right, a district court
must find binding precedent from the Supreme Court, its court of appeals,
or itself. Ohio Civil Serv. Employees Ass'n. v. Seiter, 858 F.2d 1171, 1177
(6th Cir.1988).
Plaintiffs' allegations, if true and accepted by the jury, establish several
Fourth Amendment violations. Therefore, the remaining issue is whether the
Fourth Amendment rights violated by the defendants were so clearly established
that a reasonable government official would understand that his or her conduct
violated that right.
[36] The reasonable official test includes a factual as well as a legal
component:
The relevant question ... is the objective (albeit fact-specific) question
whether a reasonable officer could have believed [defendants'] warrantless
search to be lawful, in light of clearly established law and the information
the searching officers possessed. [Defendants'] subjective beliefs about
the search are irrelevant.
Anderson, 483 U.S. at 641, 107 S.Ct. 3034.
1. Darnold, Brown, Chandler, and Kish
[37] Darnold and Brown argue a reasonable caseworker would have believed
her actions to have been lawful. In support of this contention, they assert
that: they were required by Ohio law to investigate all complaints within
twenty-four hours; they were trained to consider all reports as true and,
therefore, the Walsh children were in imminent danger of harm; they entered
the Walsh home under the reasonable impression that Mr. Walsh consented to
the inspection; they were not trained in Fourth Amendment law; and the
law is unclear whether a social worker must obtain a search warrant to investigate
allegations of child abuse.
Defendants Chandler and Kish argue they are entitled to qualified immunity
because state law required the social workers to investigate a report of
suspected child abuse within twenty-four hours. Therefore, any searches
or seizures are protected by qualified immunity because a reasonable officer
could have reasonably believed that plaintiffs were interfering with a statutorily
mandated investigation.
In essence, both the County and City defendants claim that it was reasonable
for them to believe that social workers are exempt from the requirements
of the Fourth Amendment. To be able to rely on such exemption, the defendants
must show that it was clearly established at the time of their investigation
and ensuing actions.
This they cannot do, because neither the Supreme Court nor the Sixth Circuit
has addressed whether there is a social worker exception to the Fourth Amendment.
Therefore, it was not reasonable for defendants to conclude that social workers
are not required to comply with Fourth Amendment.
[38][39] Even if the defendants have no obligation to show that a social
worker exemption was clearly established, so that they could rely on such
exemption as a defense to their actions, any claim by them that the plaintiffs'
rights were not clearly established is unavailing. Basic and applicable
Fourth Amendment principles were clearly articulated and firmly embedded
in our constitutional jurisprudence well before the events giving rise to
this suit: government officers cannot enter a home without either prior court
approval, consent, or exigent circumstances; the scope of a search is limited
by its justification; *759 all persons are entitled to freedom of movement
absent reasonable suspicion of criminal or other unlawful activity; no arrest
can be made without probable cause; and no search of an individual for weapons
can be undertaken unless incident to a lawful arrest or on an articulable
basis for believing he or she is armed and dangerous. These are bedrock
principles that the law properly presumes are known to every agent of the
state who seeks to enter a private home--even in the name of ensuring a child's
welfare.
Several courts have rejected caseworker demands for qualified immunity from
Fourth Amendment claims. Most recently, in Roska v. Peterson, 304 F.3d 982,
998-1000 (10th Cir.2002) (citing Franz v. Lytle, 997 F.2d 784, 791-92 (10th
Cir.1993)), the Tenth Circuit, after rejecting the contention that there
is a "special needs" exception to the warrant requirement in cases involving
the removal of children from their homes, also rejected the defendants' assertion
of qualified immunity. Accord, Calabretta v. Floyd, 189 F.3d 808, 815-16(9th
Cir.1999); Katz v. New Hampshire Div. of Children and Youth Services, 1994
WL 255230, *9 (D.N.H.); Chavez v. Board of County Comm'rs of Curry County,
130 N.M. 753, 31 P.3d 1027, 1035 (N.M.App.2001).
[40] Defendants Darnold and Brown assert that they are entitled to prevail
on their claim of qualified immunity because they had not had training in
Fourth Amendment law. That subjective basis for their ignorance about and
actions in violation of the Fourth Amendment does not relieve them of the
consequences of that ignorance and those actions. As noted, the standard
is objective, not subjective: qualified immunity is related to what a reasonable
official would have known, not what an individual defendant did or did not
know. Objectively viewed, a state agent whose duties take her into private
homes is deemed to know about the basic constitutional constraints on her
activities.
[41] The defendants' contention that they had been trained to act and were
acting in response to the command of Ohio law is equally unavailing. As
discussed above, the statute and regulations on which they claim to rely
mandate investigations only. Nothing in Ohio law compels or authorizes nonconsensual
entry into a private residence on the basis of an anonymous and conclusory
allegation of allegedly dangerous conditions. Ohio law did not require the
defendants to act as they did, and they cannot take refuge behind their misapplication
of that law to avoid liability to the plaintiffs.
The fact that there is no Sixth Circuit precedent on the question of the
extent to which social workers are or are not covered by the Fourth Amendment
is not a basis for extending immunity to them. As noted, the basic doctrines
are well-fixed in our constitutional jurisprudence. The absence of a decision
directly on point is immaterial:
[A] prior case on all fours is not necessary; a public official may not
manufacture immunity by inventing exceptions to well settled doctrines for
which the case law provides no support. It evidences no lack of concern
for the victims of child abuse or lack of respect for the problems associated
with its prevention to observe that child abuse is not sui generis in this
context. The Fourth Amendment case law has been developed in a myriad of
situations involving very serious threats to individuals and society, and
we find no suggestion there that the governing principles should vary depending
on the court's assessment of the gravity of the societal risk involved.
We find no indication that the principles developed in the emergency situation
cases we have heretofore discussed *760 will be ill suited for addressing
cases like the one before us.
Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087,
1094 (3rd Cir.1989). Accord, Roska, supra, 304 F.3d at 998 ("[O]fficials
can still be on notice that their conduct violates established law even in
novel factual circumstances.... [T]he salient question ... is whether the
state of the law ... gave [defendants] fair warning that their alleged [actions
were] unconstitutional.") (citing Hope v. Pelzer, 536 U.S. 730, ----, 122
S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002)); But see Ross v. State of Ala.,
15 F.Supp.2d 1173, 1183 (M.D.Ala.1998) (state of law under Fourth Amendment
not clearly settled where caseworker was required by law to conduct the investigation).
[42] The defendant officers, Sgt. Chandler and Chief Kish, cannot reasonably
claim that they, as reasonable law enforcement officers, would not reasonably
have known basic Fourth Amendment doctrines relating to arrests, detentions,
and searches. No reasonable officer could believe that he could arrest someone
without probable cause, be unaware of the elements of the obstruction of
justice statute, detain a family without probable cause or a reasonable basis
to believe that its children were in imminent harm, believe that consent
to enter private premises could be procured by threats and other coercive
action, or search an individual without probable cause or a reasonable belief
that he was armed and dangerous. No reasonable officer, moreover, could
have rationally believed that the anonymous phone call provided sufficient
justification to take any of those actions.
The claims of defendants Darnold, Brown, Chandler, and Kish of qualified
immunity are therefore denied.
2. Riggs
Because plaintiffs have not established that Defendant Riggs violated any
clearly established constitutional right, his motion for summary judgement
is granted.[FN5]
FN5. Plaintiffs have also failed to provide any evidence that defendant Riggs
violated any state laws. Therefore, the motion on behalf of Riggs is granted
in its entirety.
Failure to Train
Plaintiffs allege that ECDJFS, the Board, the City, and Chief Kish failed
to provide proper training to their employees and failed to promulgate policies
designed to protect civil rights. With regard to ECDJFS, I agree; with
regard to the Board, the City, and Chief Kish, I disagree.
In Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989), the Supreme Court stated that "there are limited circumstances in
which an allegation of a 'failure to train' can be the basis for liability
under ? 1983." More specifically,
the inadequacy of police training may serve as the basis for ? 1983 liability
only where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact.... Only where a
municipality's failure to train its employees in a relevant respect evidences
a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming
be properly thought of as a city 'policy or custom' that is actionable under
? 1983.
Id. at 388-89, 109 S.Ct. 1197 (citations omitted).
[43] Evidence of deliberate indifference need not be direct:
[I]t may happen that in light of the duties assigned to specific officers
or employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights,
that the policymakers *761 of the city can reasonably be said to have been
deliberately indifferent to the need.
Id. at 390, 109 S.Ct. 1197.
There must, however, be a causal link between failure to train and the constitutional
violation. To ascertain this link, a court must ask, "[w]ould the injury
have been avoided had the employee been trained under a program that was
not deficient in the identified respect?" Id. at 391, 109 S.Ct. 1197.
[44] Plaintiffs allege ECDJFS did not train its caseworkers in applicable
Fourth Amendment principles. That contention can hardly be disputed in light
of testimony by Darnold and Brown that they were not trained in Fourth Amendment
law, much less understood its restraints on their conduct. Any agency that
expects to send its employees routinely into private homes has a fundamental
obligation to ensure that those employees understand the constitutional limits
on their authority. Thus, because the duties assigned to ECDJFS caseworkers
make the need for Fourth Amendment training obvious, and because Darnold
and Brown's lack of training is closely related to their violation of plaintiffs'
constitutional rights, the motion for summary judgment on plaintiffs' failure
to train claim against ECDJFS is denied.
The motions for summary judgment on behalf of the Board, the City, and Chief
Kish, however, are granted. Plaintiffs have provided no evidence that any
of these three defendants had policies that were deliberately indifferent
to the constitutional rights of plaintiffs or that the City or Chief Kish
inadequately trained the City's police officers or that any such inadequacy
led to the plaintiffs' constitutional injuries.
Official Policies
Plaintiffs' third cause of action alleges defendants Darnold, Brown, Chandler,
Riggs, and Kish acted pursuant to official policies, plans, and training
when they entered the Walsh home without a warrant, arrested Mr. Walsh, and
blocked the Walsh driveway. Because the individual defendants were acting
pursuant to official policy, plaintiffs assert that the Board, ECDJFS, the
City, and Chief Kish authorized and approved the conduct and are therefore
liable for any constitutional violations.
[45][46] Local governmental bodies may be sued under ? 1983 where "the
action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated
by that body's officers." Monell v. Dep't of Social Servs., 436 U.S. 658,
690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Furthermore, local governments
"may be sued for constitutional deprivations visited pursuant to governmental
'custom' even though such a custom has not received formal approval through
the body's official decisionmaking channels." Id. at 690, 98 S.Ct. 2018;
citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598,
26 L.Ed.2d 142 ("Congress included customs and usages [in ? 1983] because
of the persistent and widespread discriminatory practices of state officials....
Although not authorized by written law, such practices of state officials
could well be so permanent and well settled as to constitute a 'custom or
usage' with the force of law.").
[47] Municipal liability, however, is not based on the concept of respondeat
superior:
Congress did not intend municipalities to be held liable unless action pursuant
to official municipal policy of some nature caused a constitutional tort.
In particular, we conclude that a municipality cannot be held liable solely
because it employs a tortfeasor--or, in other *762 words, a municipality
cannot be held liable under ? 1983 on a respondeat superior theory.
* * * * * *
It is when execution of a government's policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is
responsible under ? 1983.
Monell, 436 U.S. at 691, 694, 98 S.Ct. 2018.
[48] Plaintiffs allege that ECDJFS caseworkers are not trained in Fourth
Amendment law, but, instead, they are trained to "persuade" parents to surrender
access to their homes by warning that refusal would result in removal of
the children, citations for conditions in the home, or other police action.
Plaintiffs have provided no evidence, however, that ECDJFS has an official
policy or custom of depriving individuals of their Fourth Amendment rights.
It is undisputed that the plaintiffs' request for a search warrant was the
first time an ECDJFS caseworker was confronted with this situation. Furthermore,
both Darnold and Brown testified that they are trained to contact the agency
and law enforcement if they are denied access for an inspection. Thus, there
is no evidence that ECDJFS had an official policy or custom to deprive individuals
of their constitutional rights to gain access to their homes.
[49] Plaintiffs also argue that because Chief Kish is a policy maker, the
City is liable for his constitutional violations.
In City of St. Louis v. Praprotnik, 485 U.S. 112, 113, 108 S.Ct. 915, 99
L.Ed.2d 107 (1988), a plurality of the Supreme Court held that an "official
policy" is a policy adopted by someone with final policymaking authority
with respect to the action ordered.
The Court in Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986), explained how an official policymaker can be liable:
Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.
The fact that a particular official--even a policymaking official--has discretion
in the exercise of particular functions does not, without more, give rise
to municipal liability based on an exercise of that discretion.
The Supreme Court's illustration in Pembaur demonstrates how narrowly the
law defines "final policymaker":
For example, the County Sheriff may have discretion to hire and fire employees
without also being the county official responsible for establishing county
employment policy. If this were the case, the Sheriff's decisions respecting
employment would not give rise to municipal liability.... Instead, if county
employment policy was set by the Board of County Commissioner, only that
body's decision would provide a basis for county liability.
This would be true even if the Board left the Sheriff discretion to hire
and fire employees and the Sheriff exercised that discretion in an unconstitutional
manner; the decision to act unlawfully would not be a decision of the Board.
However, if the Board delegated its power to establish final employment policy
to the Sheriff, the Sheriff's decision would represent county policy and
could give rise to municipal liability.
475 U.S. at 483 n. 12, 106 S.Ct. 1292.
Defendant Kish's position is similar to that of the county sheriff, whom
the Supreme Court in Pembaur gave as an example of an official who is not
a final decisionmaker. Thus, even if Kish exercised his *763 discretion
to violate plaintiffs' Fourth Amendment rights, his was not a decision of
the City of Vermilion.
Thus, because plaintiffs cannot prove that the City and County entity defendants
can be liable through a respondeat superior theory, and they have not provided
evidence that the County or City entity defendants had a custom or practice
of depriving individuals of their Fourth Amendment rights, the County and
City defendants' motions are hereby granted on this claim.
State Law Claims: Counts IV--VII:
Plaintiffs assert various state law claims against County and City defendants.
Raising immunity as a defense, defendants seek judgment on these claims.
A. Ohio's Immunity Statute
[50] The Political Subdivision Tort Liability Act, codified in O.R.C. Chapter
2744, prescribes a three-tiered analysis for determining whether a political
subdivision is immune from liability.
First, ? 2744.02(A)(1) sets forth the general rule of immunity:
Except as provided in division (B) of this section, a political subdivision
is not liable in damages in a civil action for injury, death, or loss to
a person or property allegedly caused by an act or omission of the political
subdivision or an employee of the political subdivision in connection with
a governmental or proprietary function.
Once immunity is established, the second tier of analysis is whether any
of the five exceptions to immunity in ? 2744.02(B) apply. These include:
(1) negligent operation of a motor vehicle by political subdivision employees
while in the scope of their employment; (2) negligent performance of acts
by employees with respect to proprietary functions of political subdivisions;
(3) failure to keep public roadways in repair and free from nuisance; (4)
negligence of employees within or on the grounds of government buildings;
and (5) liability expressly imposed on the subdivision by a section of the
Revised Code.
Under the third tier of analysis, immunity can be reinstated if the political
subdivision can successfully argue that one of the defenses of O.R.C. ? 2744.03
applies.
In this case, the City is immune from all state law claims. Plaintiffs
have failed to demonstrate that any exceptions apply to the City. ECDJFS
and the Board are immune from all claims except the claims for false arrest,
as discussed below.
Section 2744.03 also provides immunity limitations for employees of political
subdivisions. That section provides, in part:
(6) * * * [T]he employee is immune from liability unless one of the following
applies:
(a) The employee's acts or omissions were manifestly outside the scope of
the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner;
(c) Liability is expressly imposed upon the employee by a section of the
Revised Code.
[51][52] Whether an individual employee is entitled to immunity is a question
of law. Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992).
Immunity will attach to the conduct of political subdivision employees if
one of the exceptions does not apply. Miller v. Leesburg, 87 Ohio App.3d
171, 175, 621 N.E.2d 1337 (1993).
B. False Arrest/False Imprisonment
Plaintiffs allege defendant Brown falsely arrested the Walsh family by blocking
their driveway with Darnold's automobile *764 and preventing their freedom
of movement. Mr. Walsh also claims defendants Chandler and Kish falsely
arrested him by detaining and arresting him. Plaintiffs claim defendants
ECDJFS, the Board, and the City are vicariously liable for the acts of the
individual defendants.
1. Defendant Brown
[53][54][55][56][57][58] Plaintiffs argue defendant Brown lost her immunity
by acting maliciously, in bad faith, or in a wanton or reckless manner.[FN6]
The County Defendants argue that Brown did not act in such an egregious manner
so as to lose her immunity; more importantly, defendants argue plaintiffs
cannot prove a claim of false arrest.
FN6. "Malice" is the willful and intentional design to injure or harm another,
usually seriously, through conduct that is unlawful or unjustified. Cook
v. City of Cincinnati, 103 Ohio App.3d 80, 90, 658 N.E.2d 814 (1995); Piro
v. Franklin Twp., 102 Ohio App.3d 130, 139, 656 N.E.2d 1035 (1995). "Bad
faith" includes a dishonest purpose, conscious wrongdoing, or breach of a
known duty through some ulterior motive. Cook, 103 Ohio App.3d at 90-91,
658 N.E.2d 814; Piro, 102 Ohio App.3d at 139, 656 N.E.2d 1035.
"Wanton" misconduct may be described as a degree greater than negligence.
Ruth v. Jennings, 136 Ohio App.3d 370, 375, 736 N.E.2d 917 (1999). The conduct
is characterized by "the failure to exercise any care toward one to whom
a duty of care is owed when the failure occurs under circumstances for which
the probability of harm is great and when the probability of harm is known
to the tortfeasor." Id. (citations omitted). An individual acts "recklessly"
when he "does an act or intentionally fails to do an act which is in his
duty to the other to do, knowing or having reason to know of facts which
would lead a reasonable man to realize, not only that his conduct creates
an unreasonable risk of physical harm to another, but also that such risk
is substantially greater than that which is necessary to make his conduct
negligent." Id. (citations omitted)
Because the line between wanton or reckless misconduct and ordinary negligence
can be a fine one, "the issue of whether conduct was willful or wanton should
be submitted to the jury for consideration in light of the surrounding circumstances
when reasonable minds might differ as to the import of the evidence." Brockman
v. Bell, 78 Ohio App.3d 508, 517, 605 N.E.2d 445 (1992).
As the Supreme Court of Ohio explained in Rogers v. Barbera, 170 Ohio St.
241, 243, 164 N.E.2d 162 (1960):
In a false arrest, false imprisonment exists, but the detention is by reason
of an asserted legal authority to enforce the processes of the law .... In
false imprisonment, the essence of the tort consists in depriving the plaintiff
of his liberty without lawful justification; and the good intention of the
defendant does not excuse, nor does his evil intention create, the tort.
See also Feliciano v. Kreiger, 50 Ohio St.2d 69, 71, 362 N.E.2d 646 (1977)
("False imprisonment has been succinctly defined in the following manner:
'to confine one intentionally without lawful privilege and against his consent
within a limited area for any appreciable time, however short.' " (citations
omitted)).
If Brown blocked the driveway, she restrained plaintiffs' freedom of movement
without lawful justification. Also, a jury could find her actions to have
been reckless, especially in light of the alleged threats to declare an emergency,
remove the children, and order citations against the plaintiffs if they did
not cooperate with the investigation.
Thus, there is a question of fact whether Brown acted recklessly and whether
she falsely imprisoned the plaintiffs. Her motion for summary judgment is
therefore denied.
2. The Board and ECDJFS
[59] Plaintiffs argue the Board and ECDJFS do not enjoy political subdivision
immunity because they fall within the exception *765 in ? 2744.02(B)(1) for
negligent operation of a motor vehicle by an employee within the scope of
employment.
Defendants have failed to address this allegation, and a jury could reasonably
find that Brown was acting within the scope of her employment when she blocked
the plaintiffs' driveway. Summary judgment on this claim is, therefore,
denied.
3. Chandler and Kish
[60][61] To escape liability for false arrest or false imprisonment, the
defendant has the burden of proving legal justification for his or her actions.
Isaiah v. Great Atlantic & Pacific Tea Co., 111 Ohio App. 537, 541, 174
N.E.2d 128 (1959).
Chandler and Kish argue they were legally justified in seizing Mr. Walsh,
and thus deserve summary judgment, because he looked nervous and agitated,
he repeatedly went inside and out of the home, and he attempted to leave
the premises.
[62] The tort of false imprisonment and arrest in Ohio are dependent on
the lawfulness of the detention under federal constitutional standards.
Harvey v. Horn, 33 Ohio App.3d 24, 28, 514 N.E.2d 452 (1986).
For the reasons previously stated with regard to plaintiffs' Fourth Amendment
claims, a reasonable jury could conclude that plaintiff's arrest lacked any
lawful basis. Furthermore, given the apparent lack of lawful basis, a reasonable
juror could conclude that Chandler and Kish manifested a wanton and reckless
abuse of official state power. They are, therefore, not immune for these
acts under state law.
C. Assault and Battery
[63] Plaintiffs allege defendants Darnold, Brown, and Chandler committed
the tort of assault by intentionally putting plaintiffs in apprehension of
an imminent battery. Plaintiffs also allege defendants committed a battery
against Mr. Walsh because his arrest and frisk constituted an unwarranted
and unlawful touching without his consent.
[64] An assault is an unlawful offer or attempt, coupled with a present
ability, to inflict an injury upon the person of another. Daniel v. Maxwell,
176 Ohio St. 207, 208, 198 N.E.2d 657 (1964) (citing 5 Oh Jur (2d), Assault
and Battery ? 2).
[65][66] A person is subject to liability for battery when he acts intending
to cause a harmful or offensive contact, and when a harmful contact results.
Love v. City of Port Clinton, 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988)
(citing Restatement (Second) of Torts ? 13 (1965)). Contact which is offensive
to a reasonable sense of personal dignity is offensive contact. Id.
Plaintiffs have provided no evidence as to how Darnold and Brown could be
liable for these torts. Thus, Darnold and Brown's motion for summary judgment
as to these claims is granted.
Chandler and Kish's motion for summary judgment on the assault and battery
claim, however, is denied. There are facts in dispute as to whether Chandler
and Kish arrested Mr. Walsh. An unlawful arrest would involve an unlawful
touching. Also, placing Mr. Walsh on Darnold's automobile and frisking him
are undoubtedly offensive to a reasonable sense of personal dignity.
Moreover, given the apparent complete lack of lawful authority--there was
neither probable cause for an arrest nor a reasonable basis for believing
Mr. Walsh was armed--a jury could find that Chandler's actions were reckless.
Thus, Chandler is not entitled to immunity under state law for the assault
and battery claim. Likewise, Kish is not entitled to immunity for the assault
claim.
*766 D. Intentional Infliction of Emotional Distress
[67] Plaintiffs allege defendants' actions were intentional and outrageous,
thereby intentionally inflicting emotional distress on the plaintiffs.
[68] Intentional infliction of emotional distress has four elements:
1) the actor either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress
to the plaintiff;
2) the conduct was so outrageous as to go "beyond all possible bounds of
decency" and was such that it can be considered as "utterly intolerable in
a civilized community,"
3) the actions were the proximate cause of plaintiff's psychic injury; and
4) the mental anguish suffered by plaintiff is serious and of a nature that
"no reasonable man could be expected to endure it."
Pyle v. Pyle 11 Ohio App.3d 31, 34, 463 N.E.2d 98 (1983).
Defendants argue their conduct does not rise to the level of extreme and
outrageous to make them liable.
"Extreme and outrageous" conduct has been described as occurring in cases
"in which the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'
" Yeager v. Local Union 20, Teamsters Chauffeurs, Warehousemen & Helpers
of America, 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983). A reasonable juror,
being apprized of the pertinent Fourth Amendment legal doctrines, including
the basic sanctity of the home and the right to be free from unjustified
intrusion, and, as well, the constitutional protection otherwise given to
the family, could view the threats of taking the children away, the arrest,
ensuing entry into the home, and the searches of Mr. Walsh and the family
home to have been outrageous.
Defendants also argue that plaintiffs have failed to meet their burden of
showing that they suffered serious emotional distress.
[69] "Serious emotional distress" is defined as "emotional injury which
is both severe and debilitating." Paugh v. Hanks, 6 Ohio St.3d 72, 78, 451
N.E.2d 759 (1983). The definition goes beyond "trifling mental disturbance,
mere upset or hurt feelings." Id. Serious emotional distress may be found
"where a reasonable person, normally constituted, would be unable to cope
adequately with the mental distress engendered by the circumstances of the
case." Id. A non-exhaustive litany of some examples of serious emotional
distress should include traumatically induced neurosis, psychosis, chronic
depression, or phobia. Id.
Plaintiffs allege that Linda Walsh has suffered severe emotional distress.
Her affidavit states that when she is at home, she is overcome with fear,
nervousness, and claustrophobia. She claims that, an uncontrollable fear
of the police coming to take her children away has caused her to move to
another county. Mr. Walsh has also testified that Mrs. Walsh has spells
of anxiety and "panic attacks," causing her to move to another county.
Defendants argue plaintiffs' claim must fail because Mrs. Walsh has not
received a medical diagnosis of physical or psychological injury. Ohio courts
have concluded, however, that "[p]roof of serious emotional distress may
be offered in the form of expert medical testimony, but expert opinion is
not indispensable. Lay witnesses acquainted with the plaintiff may also
testify to significant changes that they have observed in the emotional or
habitual makeup of the plaintiff." *767Uebelacker v. Cincom Systems, Inc.,
48 Ohio App.3d 268, 276, 549 N.E.2d 1210 (1988); see also Powell v. Grant
Med. Ctr., 148 Ohio App.3d 1, 6, 771 N.E.2d 874 (2002) (noting that "expert
medical testimony is not indispensable to a claim of serious emotional distress").
In Uebelacker, the court found an issue of fact as to whether the plaintiff
suffered serious emotional injury based on the affidavit of his wife of twenty-
six years, who testified he "was highly emotional, moody, tearful, forgetful,
distrusting of others, compulsive, uncommunicative and unsupportive." Id.
With the evidence construed in plaintiffs' favor, they have established
that the emotional distress allegedly suffered by Mrs. Walsh is sufficiently
severe and debilitating to support this claim. Because there is evidence
of severe emotional injury, its seriousness is a question of fact for the
jury.
Also, a jury could find defendants' actions malicious or reckless; defendants
are therefore not entitled to immunity on this claim.
Conspiracy
Plaintiffs also allege that defendants entered into a conspiracy, under
federal and state law, to violate plaintiffs' state and federal constitutional,
statutory, and common law rights.
Plaintiffs do not allege a federal basis for the conspiracy charge. The
civil rights conspiracy statute, 42 U.S.C. ? 1985(3), on which, presumably,
plaintiffs base their federal conspiracy claim, provides:
If two or more persons in any State or Territory conspire or go in disguise
on the highway or on the premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges or immunities under the laws
....
[70] Section 1985(3) requires that there be some racial or other class-
based invidiously discriminatory animus behind the conspirators' action.
United Brotherhood of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29,
103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). Plaintiffs have alleged the existence
of a conspiracy, but their complaint does not claim that the alleged conspiracy
had a racial or otherwise class-based, discriminatory animus.
Because plaintiffs do not provide another source for a federal conspiracy
claim, defendants' motion for summary judgment is granted as to this claim.
[71][72][73][74][75][76] Under Ohio law, the tort of civil conspiracy is
"a malicious combination of two or more persons to injure another in person
or property, in a way not competent for one alone, resulting in actual damages."
Le Fort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 126, 512 N.E.2d
640 (1987). The ultimate fact of conspiracy is solely a question for the
jury, unless the court can say, as a matter of law, that there is no proof
tending to establish a conspiracy. Liston v. Statler, 9 Ohio App. 398, 401
(1917). An underlying unlawful act is required before a civil conspiracy
claim can succeed. Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 N.E.2d
481 (1996). The malice involved in this tort is "that state of mind under
which a person does a wrongful act purposely, without a reasonable or lawful
excuse, to the injury of another." Pickle v. Swinehart, 170 Ohio St. 441,
443, 166 N.E.2d 227 (1960). Also, in a conspiracy, the acts of coconspirators
are attributable to each other. Williams v. Aetna Fin. Co., 83 Ohio St.3d
464, 476, 700 N.E.2d 859 (1998).
Chief Kish stated in his deposition that charging Mr. Walsh with obstruction
of official business was an alternative discussed with the caseworkers at
the Vermilion police station. (Kish Dep. at 41) He *768 also stated that
the caseworkers spoke to their supervisors and the prosecutors office. Kish
then stated: "At some point it did come up where I know they were authorized
to sign the charge for obstructing." (Id. at 42).
Plaintiffs argue this testimony is sufficient to establish that the police
and caseworkers intentionally cooperated and conspired in a plan to detain
the Walsh family unlawfully and to apply coercive pressure on Mr. Walsh to
compel his consent to a warrantless search.
The record, however, does not support such a contention. A discussion between
the police and caseworkers about possibly charging Mr. Walsh with obstruction
of official business and authorizing the caseworkers to sign a complaint
do not support a claim of unlawful conspiracy. There is, in any event, no
evidence in the record that Darnold and Brown agreed to arrest Mr. Walsh
as an alternative to obtaining a search warrant.
The defendants' motions for summary judgment on the conspiracy claims are
granted.
CONCLUSION
It is, therefore,
ORDERED THAT:
1. The County defendants' motion for summary judgment be, and the same hereby
is, denied as to plaintiffs' ? 1983 Fourth Amendment claims, the failure
to train claim against ECDJFS, and the state law claims of false arrest/false
imprisonment and intentional infliction of emotional distress; and
2. The County defendants' motion for summary judgment be, and the same hereby
is, granted as to the remaining claims.
3. The City defendants' motion be, and the same hereby is, denied as to plaintiffs'
? 1983 Fourth Amendment claims and their state law claims of false arrest/false
imprisonment, assault, battery, and intentional infliction of emotional distress;
and
4. The City defendants' motion be, and the same hereby is, granted as to
all claims against Rick Riggs, all claims against the City, and the remaining
claims.
So ordered.
240 F.Supp.2d 731
END OF DOCUMENT