Hardaway v. City of Toledo et al
Filing
46
Memorandum Opinion and Order denying 43 Smith's Motion for summary judgment. Judge Jack Zouhary on 9/29/2015. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Beverly Hardaway,
Case No. 3:14 CV 1418
Plaintiff,
MEMORANDUM OPINION
AND ORDER DENYING
SUMMARY JUDGMENT
-vsCity of Toledo, et al.,
JUDGE JACK ZOUHARY
Defendants.
INTRODUCTION
In October 2013, seventeen-year-old M.H. called Toledo 911 from the lobby of a grocery store,
explaining that he could not gain entry to the home of his then-foster mother, Plaintiff Beverly
Hardaway. M.H. told dispatch he had called Hardaway, who told him to go to Children Services and
not return home (Doc. 44 at 0:30 – 0:34). Defendant Michael Smith, a Toledo police officer,
responded and drove M.H. to Hardaway’s home, just over a block away. During the drive, M.H. again
said that Hardaway had locked him out of the house. After talking with Hardaway, Smith arrested her
for child endangerment.
But as it happens, almost nothing M.H. said that night was true. A state trial court found
Hardaway not guilty of child endangerment, and she now sues Smith, alleging he arrested her without
probable cause and used excessive force in making the arrest. Smith responds with a Motion for
Summary Judgment (Doc. 43). For the reasons below, this Court denies the Motion.
BACKGROUND
Because this Court must focus on the facts Smith knew at the time he arrested Hardaway, the
narrative begins with Smith’s arrival at the grocery store, where M.H. climbed into his cruiser’s
backseat for the brief ride home. “When I got there he said that he was locked out. He had went home
and tried to get in and no one would let him in” (Doc. 36 at 9). M.H. explained that Hardaway had
locked him out because he had missed his curfew by an hour and a half (id. at 11, 13). M.H. claimed
he stood at the Hardaway home’s front door and knocked “continuously for an hour” (id. at 12).
During the drive, Smith guessed that M.H. suffered from some form of mental illness. “His
demeanor, um, the way he spoke. You speak to him for a minute you just kind of get the vibe that he’s
off” (id. at 15–16). Smith’s intuition was correct. According to Smith, prior to the arrest, Hardaway
revealed that M.H. is schizophrenic (id. at 36). Hardaway also mentioned M.H.’s “medication,”
though Smith denies that Hardaway further explained M.H. took psychotropics for his illness (id. at
33).
Officer Melissa Stephens arrived at the Hardaway home to assist on the call, arriving soon after
Smith (Doc. 37-1 at 4). She spoke with Smith briefly by his patrol car and learned the game plan:
“Officer Smith was going to speak with [Hardaway] and I’m more or less assisting him to speak with
her and see what happened as to why [M.H.] wasn’t in the house or to verify his story” (id.).
With M.H. still in the patrol car, the two officers approached the Hardaway home and knocked
on the front door (id.). Twenty-year-old David Rodriguez answered the door. Stephens says “the first
thing David said was you must be here about [M.H.] and I believe Officer Smith asked for the foster
mother. So he said he would get her” (id. at 5). Rodriguez invited both officers into the house and
fetched Hardaway, who appeared wearing a bathrobe (id.).
The discussion that followed occurred in the home’s front living room, where Hardaway,
Smith, and Stephens stood, with Rodriguez close by in the adjacent foyer. Hardaway and Smith tell
very different stories about what happened next.
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Hardaway is Arrested
Hardaway’s Version of Events. Hardaway consistently states she did not refuse M.H. entry
to her home, either before M.H.’s call to 911 or in Smith’s presence (see, e.g., Doc. 32 at 41). She
locks her doors every night out of habit and not because M.H. had missed curfew. “I’ve [served as a
foster parent] for 22 years and I have five [former foster children] in prison right now for murder. The
kids come back, they rob, they sleep in the back yard and I lock my door every night” (id. at 36).
However, Hardaway did know that M.H had missed curfew. She had reported that fact to
Children Services by phone (id. at 38). Because M.H. commonly missed curfew, Children Services
told Hardaway to phone the agency when he returned (id. at 39). Hardaway also called M.H.’s
biological mother because her apartment was a common stopping point for M.H. when he ran away
from his foster home or broke curfew (id. at 37).
Smith does not suggest that Hardaway created a substantial risk to M.H.’s safety by (for
example) not searching for M.H. on her own. In the past, when M.H. failed to return home, Hardaway
would drive around Toledo visiting M.H.’s normal haunts. But because these nighttime trips took her
to notoriously dangerous housing complexes, Children Services specifically ordered Hardaway not to
seek out M.H. in this way. Instead, she should wait for M.H. to call for a ride, then tell M.H. to head
to Children Services where he would be picked up (see id. at 31–32).
Despite her phone calls, Hardaway had no luck locating M.H. Before she went to sleep, she
gave Rodriguez permission to let M.H. in the house. She instructed Rodriguez to wake her when M.H.
returned, so she could give him medication (Doc. 35 at 16, 18). Rodriguez stayed up late playing
video games (id. at 17). Hardaway says she did not want M.H. taken to Children Services (Doc. 32
at 39); she wanted him home.
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But Hardaway claims she never had the chance to tell Smith any of this. When the officers
arrived, she initially panicked. The police had brought M.H. home in the past after he had run away.
But officers would always bring M.H. to the door. This time, Smith and Stephens were alone.
“[W]hen I saw the officers for the first time and no [M.H.] I thought maybe they were coming to bear
some bad news” (id. at 40).
Rodriguez recounts what happened next. Smith “instantly” asked “what is all this about you
not letting [M.H. in?]” (Doc. 35 at 19). Hardaway began to explain that she had not refused to let
M.H. in the house, but Smith “cut[] her off” and called her a “liar” (id.). Hardaway asked Smith to call
a nearby district police station to confirm M.H.’s history of running away from home and breaking
curfew, but Smith again cut her off (id.). “Then [the discussion] came to a point where my ma said
Dave, could you bring his meds to me, please? And [Smith’s] like don’t bring me a fucking thing”
(id.).
Smith never asked if Hardaway would let M.H. back in the house. Hardaway says the closest
statement Smith made to such a request occurred as Hardaway tried to explain that she had not locked
M.H. out. Smith then said, “how’s about I go get [M.H.] so you can lie to his face” (Doc. 32 at 41).
At that point, Rodriguez approached Smith, saying (Doc. 35 at 21):
[W]ell, excuse me Officer, maybe you’re just not understanding. That’s when [Smith]
kind of just lost it. He turned around and put his finger so close to my face that it could
have kinetic energy between us, you know, he’s almost touching me. . . . that’s when
he [said], ‘you get fucking back, this is none of your damn business.’
Hardaway told Rodriguez to take a step back, which he did, and Hardaway asked Smith for his
badge number (id. at 21–22):
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[A]s soon as my ma says I need all your information, [Smith said] ‘oh, oh, yeah? Well,
you’re under arrest for child endangerment.’ And that’s when he goes over there, he
yanks her up from her arm, pushes her into her [living room’s] glass tables and makes
[the decorative glass that sat on the table] chime, I don’t know, she got all types of
glass everywhere.
Hardaway says that, immediately after she told Smith she was “not intimidated” by him, Smith
grabbed her under her armpit (Doc. 32 at 43–44, 51, 53–54, 79–80). Hardaway did not resist (Doc.
35 at 25; Doc. 37 at 14). She noticed her cut leg after she had been booked into the Lucas County Jail
(Doc. 32 at 47). Bruising to her armpit area developed later (see id. at 48).
Throughout this confrontation, Officer Stephens stood next to Smith. She confirms that
Hardaway and Smith’s discussion was brief, agreeing that “Ms. Hardaway didn’t really say much
when [Stephens was] in her presence” (Doc. 37 at 8). Stephens could not recall Hardaway refusing
custody of M.H. (id. at 12). And contrary to Smith’s testimony, Stephens does not recall Hardaway
telling officers that M.H. should be sent to Children Services (id. at 24).
Instead of refusing M.H. entry to the house, Stephens says Hardaway asked “several times” if
she could “explain her side,” stating M.H. “was not being honest” with the officers (id. at 9, 11, 16,
18). Stephens says Smith responded that “he would bring [M.H.] in and let her say that [M.H.] was
a liar to h[is] face” (id. at 18). Smith never allowed Hardaway a chance to explain her side of the story
(see id. at 19).
Smith’s Version of Events. Smith says he began his conversation with Hardaway by asking
if she knew where her foster son was; she replied M.H. had run away. Smith told Hardaway that was
not true because M.H. was sitting in the back of his patrol car because he was locked out (Doc. 36 at
26–27). Smith suggested “I can bring [him in the house] and we can straighten it out” (id. at 27). “She
said not to bring him in, that she wanted him to go to” Children Services (id.) (emphasis added).
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“[S]he refused [to let M.H. into the house.] She said that he didn’t need to come in, he needed to go
to” Children Services (id. at 28) (emphasis added). Smith insisted Hardaway had to take custody of
her foster son; Children Services was not an option (id. at 28–29).
Hardaway continued to refuse custody (id. at 31). She asked Smith to call a police district
station to confirm M.H. had a history of running away from home (id. at 32). She also told Rodriguez
to retrieve M.H.’s medication -- Rodriguez did -- though Smith did not ask and was not told what type
of medication M.H. took (id. at 32–33). Smith denies that, at this point, he cussed at Rodriguez (see
id.).
Hardaway and Smith then briefly discussed M.H.’s mental illness. Smith testified that
Hardaway said M.H. suffered from schizophrenia and “that he had medication” (id. at 35–36). After
learning of M.H.’s illness, Smith said “that would be even more reason not to keep him locked out”
(id. at 36–37).
Smith eventually “cut off” Hardaway after she continued to ask him to call the police district
station (id. at 38). She had become “mildly aggressive,” raising her voice (id. at 40). He then
presented Hardaway with her choice for a final time: “I had basically put it point blank to her that you
have to take possession of him or you will be charged” (id. at 41). “[S]he told me that she didn’t care,
I don’t intimidate her, she knows a lawyer” (id. at 42).
Smith arrested Hardaway (id. at 43). As Smith touched her to apply handcuffs, she became
startled, lost her balance, and began to fall, but Smith kept her from falling by holding on to her arm
(id. at 43–44). At the same time, Rodriguez began to approach Smith in an aggressive posture; Smith
told Rodriguez to “get the fuck back” (id. at 50, 51, 54–55). Smith denies lifting Hardaway by the
armpit and dragging her into the living room coffee table. Stephens likewise recalls no use of force
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(Doc. 37 at 13, 19). Stephens did not see Hardaway struggle with Smith or lose her balance during
the arrest (id. at 14–15).
STANDARD OF REVIEW
Summary judgment is appropriate where there is “no genuine dispute as to any material fact”
and the moving party “is entitled to judgment as a matter of law.” Federal Civil Rule 56(a). The court
must draw all inferences from the record in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court may not
weigh the evidence or determine the truth of any matter in dispute. Rather, the court determines only
whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). The doctrine of
qualified immunity shields from civil liability government officials who perform discretionary
functions if “their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Champion v. Outlook Nashville, Inc., 380 F.3d 893,
900 (6th Cir. 2004) (quotation marks omitted).
DISCUSSION
Fourth Amendment Seizure
Hardaway stipulated to dismissal of the Complaint’s malicious prosecution claim (see Doc. 28).
Even so, Smith’s Motion addresses probable cause in the context of that dismissed claim (see, e.g.,
Doc. 43 at 10, citing Worley v. Columbia Gas of Ky., Inc., 491 F.2d 256, 262 (6th Cir. 1973)). To the
extent his Motion depends on the legal premise that Hardaway can only present her case to a jury if she
makes a “clear showing” that Smith lacked probable cause, that legal error is reason enough to deny
summary judgment. The “clear showing” standard is a product of Kentucky malicious prosecution case
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law, not federal law. See Puckett v. Clark, 410 S.W.2d 154, 157 (Ky. 1966) (explaining that because
“public policy favors the exposure of crime, and malicious prosecution actions are not favored in the
law, a plaintiff has the burden of making a clear showing of no probable cause”).
Still, this Court has reviewed the record in light of Hardaway’s unreasonable seizure claim and
case law relevant to that claim. “Whether that arrest was constitutionally valid depends . . . upon
whether, at the moment the arrest was made, the officers had probable cause to make it -- whether at
that moment the facts and circumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had
committed or was committing an offense.” Beck v. State of Ohio, 379 U.S. 89, 91 (1964).
[A]n officer does not have to investigate independently every claim of innocence. But,
this axiom does not suggest that an officer has no duty to investigate an alleged crime
before making an arrest. A police officer has probable cause only when he discovers
reasonably reliable information that the suspect has committed a crime. And, in
obtaining such reliable information, an officer cannot look only at the evidence of guilt
while ignoring all exculpatory evidence. Rather, the officer must consider the totality
of the circumstances, recognizing both the inculpatory and exculpatory evidence, before
determining if he has probable cause to make an arrest.
Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000) (emphases in original) (citations omitted).
Probable cause is generally a jury question “unless there is only one reasonable determination
possible.” Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (quotation marks omitted).
“Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on
state law.” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Smith arrested Hardaway for recklessly
“creat[ing] a substantial risk to the health or safety” of M.H. “by violating a duty of care, protection,
or support” she owed M.H. as his foster mother. OHIO REV. CODE § 2919.22(A); see also State v.
O’Brien, 30 Ohio St. 3d 122, 125 (1987) (explaining the offense includes a recklessness mens rea not
mentioned in the statute).
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Two possible bases exist for Smith’s probable cause determination: “Plaintiff’s failure to let
[M.H.] back into the home” (Doc. 43 at 5), or M.H.’s statements to dispatch and to Smith to the effect
that Hardaway locked him out of the house and told him not to return because he broke curfew (see id.
at 4).
Hardaway’s conversation with the officers does not compel summary judgment. Hardaway
denies that she refused to take custody of M.H. Her version of events creates a jury question as to
whether, based on Smith’s discussion with Hardaway, a reasonably prudent officer would believe
Hardaway had recklessly placed M.H. in harm’s way. Smith ignores this version of events. For
purposes of the unreasonable seizure claim, his Motion entirely depends on the officers’ testimony.
Here is the version of events which Smith’s Motion ignores: Upon meeting Hardaway, Smith
immediately and angrily accused her of locking M.H. out of her home. Hardaway denied that
accusation and tried to explain that M.H. had lied to Smith. Smith replied with a sarcastic offer to fetch
M.H. so that Hardaway could lie to his face. According to Stephens, Smith never allowed Hardaway
a chance to explain herself. Even though Smith knew M.H. was schizophrenic, he refused to consider
the type of medication M.H. took. And far from asking Hardaway “point blank” to let M.H. into the
house or be arrested, Smith arrested Hardaway immediately after she asked for his badge number and
told him she was not intimidated by him, without ever asking Hardaway to take custody of M.H. Other
than Smith, no one on the scene testified that Hardaway refused custody of M.H. And while it is true
in a literal sense that Hardaway “fail[ed] to let [M.H.] back into the home” before she was arrested (id.
at 5), that was only because Smith quickly arrested Hardaway.
Hardaway’s version of events does not resemble either of the two cases Smith cites as support
for summary judgment (see id. at 12). In State v. Morton, 138 Ohio App. 3d 309, 313 (2000), the court
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rejected a sufficiency-of-the-evidence challenge to a child endangerment conviction, noting the
defendant locked a three-week-old child “in a van for thirty to forty minutes on a hot summer day” on
the reckless assumption that another adult or child had removed the newborn from the van and was
tending to the baby. See also City of Cleveland v. Kazmaier, 2004-Ohio-6420, ¶ 18 (Ct. App.)
(affirming child endangerment conviction of defendant who forced a mother and daughter out of a
home into “sub-freezing temperatures and locked the door to prevent re-entry”).
Here, Smith does not argue that Hardaway’s habit of locking her doors at night is reckless.
Smith instead relies on his recollection that Hardaway refused to take custody of M.H. and admitted
to locking him out for missing curfew. Hardaway’s testimony contradicts both of those allegations.
On Hardaway’s version of events, Smith did not have reasonably trustworthy information that showed
a “strong possibility that [M.H.] would suffer a detriment to his . . . health” because of something
Hardaway did. City of Eastlake v. Corrao, 2003-Ohio-2373, ¶ 17 (Ct. App.) (emphasis in original).
M.H.’s statements to Smith do not compel summary judgment. That leaves Smith’s
undisputed testimony about his conversations with M.H., who told Smith that Hardaway locked him
out of the house for missing curfew. Eyewitness or victim testimony “will constitute sufficient
probable cause unless, at the time of the arrest, there is an apparent reason for the officer to believe that
the eyewitness [or victim] was lying, did not accurately describe what he had seen, or was in some
fashion mistaken regarding his recollection of the confrontation.” Ahlers v. Schebil, 188 F.3d 365, 370
(6th Cir. 1999) (quotation marks omitted); see also Doc. 45 at 15.
Here, for at least three reasons, reasonable minds could differ about whether M.H.’s statements
were “reasonably trustworthy”: M.H was a child, Smith had no evidence corroborating M.H.’s
accusation and, most important, Smith was told before the arrest that M.H. was schizophrenic. See
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Wesley v. Campbell, 779 F.3d 421, 429, 430, 432 (6th Cir. 2015); see also Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005) (explaining that a prudent officer should consider the
uncorroborated allegations of an “an interested party involved in a contentious dispute . . . in a skeptical
light” in the course of considering an arrest). Hardaway has presented a jury question on whether
Smith had probable cause to arrest her.
Smith is not entitled to qualified immunity as a matter of law. Smith raises qualified immunity
defenses to both remaining claims. But he does not develop a qualified immunity argument with
respect to the unreasonable-seizure claim. He has forfeited any such argument for purposes of
summary judgment. Cf. United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006). Further, the
argument would fail at this stage. The relevant right was clearly established at the time of Hardaway’s
arrest. See Gardenhire, 205 F.3d at 313. And it is objectively unreasonable for a police officer to
credit the uncorroborated claims of a child who the officer knows to be schizophrenic, while at the
same time refusing the child’s custodian a chance to explain her side of the story or asking the
custodian to accept custody of the child before placing her under arrest. See Estate of Dietrich v.
Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999).
Fourth Amendment Excessive Force
A police officer’s right to make an arrest “carries with it the right to use some degree of
physical coercion or threat thereof to effect” the arrest. Graham v. Connor, 490 U.S. 386, 396 (1989).
Whether police use of force is reasonable depends on “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether [t]he [suspect] is
actively resisting arrest or attempting to evade arrest by flight.” Id. This Court considers each factor
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“from the perspective of a reasonable officer on the scene,” and may not engage in second-guessing
through hindsight. Miller v. Sanilac Cnty., 606 F.3d 240, 251, 256 (6th Cir. 2010).
Smith does not argue the force he used to arrest Hardaway was necessary to overcome a danger
Hardaway posed to Smith or Stephens. Rather, Smith contends a reasonable officer would think that
amount of force appropriate because M.H.’s “well being was threatened . . . as a result of being locked
out of the house by the plaintiff, . . . [and because] Mr. Rodriguez intended to physically interfere with
the arrest of the plaintiff” (Doc. 43 at 8–9).
The first argument is meritless -- throughout the confrontation, M.H. sat in the back of Smith’s
patrol car, and Smith does not explain why yanking a foster mother into a table is necessary to protect
a foster child already in police custody away from the scene of the confrontation. The second argument
ignores a key factual dispute -- Rodriguez says he approached Smith with the intention of explaining
M.H.’s history of running away. Smith then told Rodriguez to “get the fuck back.” Hardaway
followed up by telling Rodriguez to leave the room, which he did. She then asked for Smith’s badge
number. According to Rodriguez and Hardaway, only then did Smith grab Hardaway. Accepting
Hardaway’s version of events, Rodriguez did not attempt to interfere with Hardaway’s arrest. A jury
could find that the force Smith applied was excessive under the circumstances, when Hardaway had
not resisted arrest, Rodriguez had walked away from the confrontation before the arrest, and the alleged
crime was relatively minor.
“[T]he right to be free from physical force when one is not resisting the police is a clearly
established right.” Goodwin v. City of Painesville, 781 F.3d 314, 328 (6th Cir. 2015) (quotation marks
omitted). If a jury accepts Hardaway’s version of events, a reasonable officer in “Smith’s position
could [not] have believed that force was necessary to protect [M.H. or] himself” (Doc. 43 at 9).
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“Where, as here, the legal question of qualified immunity turns upon which version of the facts one
accepts, the jury, not the judge, must determine liability.” Gradisher v. City of Akron, 794 F.3d 574,
586 (6th Cir. 2015) (quotation marks omitted).
CONCLUSION
For these reasons, this Court denies Smith’s Motion for Summary Judgment (Doc. 43).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
September 29, 2015
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