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Hastings v. Hubbard

June 16, 2006


The opinion of the court was delivered by: Magistrate Judge Sharon L. Ovington

(by consent of the parties)



Plaintiff John P. Hastings brings this case through counsel under 42 U.S.C. §1983 claiming that Defendant Brian Hubbard, a Police Officer of the Clearcreek Township, Ohio Police Department, violated his rights under the United States Constitution.

This case is presently before the Court upon remand from the United States Court of Appeals. Further proceedings remain necessary because the Court of Appeals affirmed the denial of qualified immunity to Defendant Hubbard. As a result, three federal claims remain pending, each arising under the Fourth Amendment to the United States Constitution: (1) Officer Hubbard seized Mr. Hastings without reasonable suspicion; (2) Officer Hubbard arrested Mr. Hastings without probable cause; and (3) Officer Hubbard used excessive force to effect Mr. Hastings' seizure and arrest.

Despite denying Officer Hubbard the protection of qualified immunity, the Court of Appeals' decision left open the possibility that collateral estoppel may prevent Mr. Hastings from re-litigating certain factual admissions supporting his no-contest plea in the Warren County, Ohio Court of Common Pleas. Specifically, the Court of Appeals "express[ed] no opinion on how the plaintiff's no-contest plea might alter the qualified immunity analysis or impact a motion for summary judgment on remand." (Doc. #64 at 11). Taking this lead, Officer Hubbard has filed a presently pending Second Motion for Summary Judgment (Doc. #72) arguing, "Plaintiff is barred from contesting probable cause for the seizure by his criminal plea in an Ohio court and that the amount of force used to conduct the seizure was constitutionally reasonable." Mr. Hastings disagrees, for reasons to be discussed.


When denying Officer Hubbard's first Motion for Summary Judgment, the undersigned Judicial Officer reviewed the factual background surrounding Officer Hubbard's seizure and arrest of Mr. Hastings. That factual review is incorporated herein by reference. (Doc. #58, §III; see also Doc. #64). The record has changed significantly from time of Officer Hubbard's first Motion for Summary Judgment, because it now contains evidence concerning the state criminal proceedings against Mr. Hastings.

The record contains the Entry, signed by the trial judge, documenting Mr. Hastings' no-contest plea to failure to comply with order of a police officer. (Doc. #72, Exhibit A-2). Mr. Hastings was represented by counsel during the plea hearing. (Doc. #72, Exh. A-3).

A review of the plea-hearing transcript reveals that prior to the plea proceedings, a grand jury in state court had indicted Mr. Hastings on one count of Felonious Assault and on another count not described during the plea hearing. (Doc. #72, Exh. A-3 at 3, 10, 16). The prosecuting attorney informed the trial judge that the parties had reached a plea agreement wherein the Felonious Assault charge in the indictment would be amended to the charge of failure to comply with order of a police officer, a first degree misdemeanor. (Doc. #72, Exh. A-2; see Exh. A-3 at 3).

Under Ohio law, failure to comply with order of a police officer is prohibited as follows:

No person shall fail to comply with any lawful order or direction of any police officer with authority to direct, control, or regulate traffic.

Ohio Rev. Code §2921.331(A). The trial judge explained to Mr. Hastings that this offense, as charged in the amended indictment, was a first degree misdemeanor, see Ohio Rev. Code §2921.331(C)(2), subjecting him to a possible sentence of up to six months incarceration and a fine up to $1,000.00. (Doc. #72, Exh. A-3 at 6). Mr. Hastings, through his attorney, waived any defect of service or defect in the amended indictment. (Doc. #72, Exh. A-3 at 5-6).

The trial judge explained to Mr. Hastings the import of his no-contest plea as follows:

The plea of no contest means that you are not contesting the allegations of the amendment. And in all but a very small number of cases the allegations of a complaint are sufficient to state the offense and, if they do state the offense, then there is going to be a finding of guilty, so it at that particular point amounts to a plea of guilty.... (Doc. #72, Exh. A-3 at 7). Under Ohio law, "a no contest plea is an admission of the truth of the facts underling the criminal charge." Walker v. R. Schaeffer, 854 F.2d 138, 153 (6th Cir. 1988) (citing and explaining parenthetically State v. Pernell, 47 Ohio St.2d 261 (1976)).

Also during the plea hearing, the prosecuting attorney described the charge and factual allegations in the amended indictment as follows:

[O]n or about October 11, 1998, in Warren County, Ohio, the Defendant now before the court, John Hastings, Sr., did fail comply with a lawful order or direction of a police officer vested with authority to direct, control or regulate traffic, this in violation of the statute called failure to comply with order or signal of police officer, Section 2921.33.1(A) of the Ohio Revised Code, a misdemeanor of the first degree.

Very briefly, with regard to the facts, this did occur during the afternoon of October 11, 1998, about 4:50 in the afternoon or so. The Defendant was on a motorcycle that was involved in an accident at the corner of State Route 73 and 48 in Clearcreek Township, Warren County, Ohio. He received injuries from that.

He moved himself and his motorcycle onto the parking lot at the Clearcreek Auto Sales, which is on a corner at that intersection. The officer came after that, Officer Brian Hubbard of the Clearcreek Township police department, who was vested to control and regulate traffic. He was in a cruiser and a marked uniform on that date. He asked Mr. Hastings to come towards him from across the parking lot so he could investigate the accident. Mr. Hastings did move his motorcycle towards the officer at a slow rate of speed, but failed to stop in front of the officer and was driving past the officer and bumped into the officer with his motorcycle. The officer did receive some injuries, although not serious physical harm as defined in the Ohio Revised Code. (Doc. #72, Exh. A-3 at 14-15).

When asked by the trial judge for comment about the facts, Mr. Hastings' attorney stated, "I think there was a dispute as to the bumping into, but as to him going past the officer ...

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