United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. JUDGE
Ellen Abdur-Rahim and Harrison Kallner (collectively
"Plaintiffs") have filed a Motion for Partial
Summary Judgment (ECF No. 64). Defendants City of Columbus,
Interim Chief of Police Thomas Quinlan, Lieutenant Jeffrey
Lipp, Officer Justin Masters, and Officer John Thiel
(collectively "Defendants") have filed a Motion for
Summary Judgment (ECF No. 63). Both parties have responded
and replied (ECF Nos. 69, 70, 71, 72). Therefore, the
parties' motions are ripe for review.
following reasons, the Court DENIES
Plaintiffs' Motion for Partial Summary Judgment (ECF No.
64) and GRANTS in PART and DENIES in PART
Defendants' Motion for Summary Judgment (ECF No. 63).
January 27, 2017, President Trump issued Executive Order
13769, which, among other changes to immigration policies and
procedures, banned individuals of seven countries from
entering the United States for 90 days. This Executive Order
is commonly known as President Trump's "Muslim
Ban." The Columbus Division of Police learned from
social media that more than 1, 900 people planned to protest
the Muslim Ban at the Ohio Statehouse on January 30, 2017,
(Pls.' Mot. Partial Summ. J., Ex. 2, ECF No. 64-2.)
Protest organizers named the demonstration "Rally for
the 99%." (Answer at 16, ECF No. 33.)
response to the number of people expected to attend the
demonstration, Lieutenant Lipp, the incident commander for
the planned protest, developed an incident action plan. (Lipp
Aff. At ¶¶ 7, 9, ECF No. 63-20; Pls.' Mot.
Partial Summ. J., Ex 2.) This plan detailed the protocol for
patrolling the demonstration. (Id.) According to the
Incident Action Plan, the Columbus Division of Police's
mission was "to provide a safe environment for those
expressing their [First] Amendment rights, to maintain the
safe flow of vehicular and pedestrian traffic, to prevent
civil disorder, and to protect people and property."
(pls.' Mot. Partial Summ. J., Ex. 2.) The Incident Action
Plan stated that "[f]he Division will take appropriate
enforcement actions as necessary to achieve the assigned
mission." (Id.) The Incident Action Plan
contained "enforcement notes," which stated the
If the crowd becomes violent or confrontational, there are
obvious violations of the law, and it is no longer possible
to safely provide basic police and fire services to the area,
the dispersal order will be given. The order will be made
over the PA of a cruiser and/or bullhorn. The dispersal order
will be given at least two times, and more if practical. If
the crowd fails to disperse from the affected area, officers
will be directed to guide protestors from the area. Chemical
mace may be used, as directed by the Incident Commander or
designee, for protestors. Other chemical agents or munitions
may be deployed if necessary.
expected, the Rally for the 99% demonstration began at the
Ohio Statehouse around 6:00 p.m. on January 30, 2017.
(Kallner Dep. 28:4-9, ECF No. 63-31; Masters Dep.
124:16-125:3, ECF No. 63-32.) Plaintiffs arrived separately
at the Ohio Statehouse around 6:00 p.m. (Abdur-Rahim Dep.
45:21-46:23, ECF No. 63-30; Kallner Dep. 21:2-22:4.) There,
the protestors peacefully chanted and sang until about 7:30
p.m. (Kallner Dep. 28:4-19; Masters Dep. 124:16- 125:3.) The
group then began a planned march from the Statehouse to the
Franklin County Court of Common Pleas. (Kallner Dep.
the protestors marched south toward the Franklin County
courthouses, some began "flooding the streets."
(Kallner Dep. 30:18-19.) In cruisers and on foot, police
officers tried to keep protestors on the sidewalk instead of
in the streets, but their efforts were unsuccessful and
protestors marched in the streets. (Id.) Around 7:45
p.m., Columbus public buses were "advised to pull off
High Street because protestors occupied the roadway."
(Lipp Aff. at ¶ 16.)
had gathered at the footsteps of the Franklin County Court of
Common Pleas by 7:53 p.m. (Id. at ¶ 18.) There,
the protestors occupied Mound Street, which blocked vehicles
from traveling between South High Street and Front Street.
(Id.) Around 7:57 p.m., the protestors then began
marching back toward the Statehouse. (Defs.' Mot. Summ.
J., Ex. B, ECF No. 63.) They occupied the northbound lanes of
High Street, which stopped traffic. (Id., Ex. A.)
protestors arrived at the intersection of South High Street
and State Street (the "Intersection") around 8:14
p.m. (Id., Ex. B.) Approximately 150 to 300
protestors remained in the Intersection, completely blocking
traffic in all directions. (Masters Dep. 127:18-20; Lipp Aff.
at ¶ 21.) They did not have a permit or permission to
obstruct any street. (Lipp Aff. at ¶ 40.)
south of the Intersection, police staged a small field force
across all of South High Street's lanes. (Lipp Aff. at
¶ 34.) From 8:20 p.m. to 9:00 p.m., Lieutenant Lipp and
other police personnel gave dispersal orders over
cruiser-loudspeakers and bullhorns. (Id. at
¶¶ 24-25.) The dispersal orders advised the
protestors who remained in the Intersection that: they were
violating Ohio law, there was an emergency situation, the law
required them to clear the Intersection or be subject to
arrest, and police may deploy chemical agents if protestors
did not disperse. (Id. at ¶ 24; Defs.' Mot.
Summ. J., Ex. B.) Despite the repeated dispersal orders, many
protestors remained in the Intersection. (Lipp Aff. at ¶
protestors refused to leave the Intersection, Lieutenant Lipp
was concerned individual arrests might escalate the situation
from non-violent to violent. (Id. at ¶¶
26-27.) He also knew that mass arrests were infeasible.
(Id. at ¶ 26.) So, around 8:42 p.m., Lieutenant
Lipp requested additional officers and supervisors to respond
to the Intersection. (Id. at ¶ 30.) He then
directed officers to don their gas masks in front of the
protestors to gain compliance. (Id. at ¶ 32.)
The tactic was unsuccessful, and protestors remained in the
Intersection. (Id.) Lieutenant Lipp decided pepper
spray (also referred to as "mace") was necessary
but chose to wait to deploy any until additional officers
arrived at the scene. (Id. at ¶ 33.)
9:04 p.m., Lieutenant Lipp advised officers to use a
two-second spray of mace over the heads of the protestors who
remained in the Intersection to clear it. (Id. at
¶¶ 40, 45.) Police officers deployed pepper spray
at 9:04 p.m. (Lipp Aff. at ¶ 45; Masters Dep. 163:1-15.)
By 9:24 p.m., all protestors had cleared the Intersection and
nearby roadways. (Lipp Aff. at ¶ 46.) There were no
injuries other than to those who were sprayed with mace.
(Defs.' Mot. Summ. J., Ex. 5 at 6, 9, ECF No. 63-25.) No
arrests were made. (Id.)
Plaintiff Harrison Kallner's Experience on January 30,
joined the group of protestors outside of the Statehouse and
marched with the group until they returned to the
Intersection. (Kallner Dep. 23:15-17, 33:5-7.) There, Kallner
stood on a trashcan on the sidewalk of the Intersection's
southeast corner for about thirty minutes. (Kallner Dep.
40:11-14; 42:13-16.) Kallner was roughly fifteen feet from
where the police were preparing to deploy pepper spray on the
protestors in the Intersection. (Id. at 42:8-10.)
While standing on the trashcan, Kallner held a sign, took
photos, and recorded videos of the demonstration.
(Id. at 40:13-14; 42:20-22.) Although police
repeatedly ordered the protestors in the Intersection to
disperse from 8:15 p.m. to 9:00 p.m., Kallner testified he
did not hear any of those orders. (Id. at 42:7.)
police began deploying mace over the crowd of protestors in
the Intersection, Kallner remained on the trashcan.
(Id. at 44:2-4.) He "could feel some 
stinging on [his] face and  was coughing" from the
initial deployment of pepper spray. (Id. at 55:5-7.)
As the crowd began dispersing, Kallner climbed down from the
trashcan, left the sidewalk, and ran into the Intersection
"in the opposite direction of the crowd."
(Id. at 44: 7-12.) That is, he ran from the
Intersection's southeast corner toward its northwest
corner. (Kallner Dep., Ex. B.) While in the Intersection,
"there was a police officer that was standing close to
[him]." (Kallner Dep. 44:17-18; 45:3-5.) "[U]pset
and confused," Kallner asked the officer, who was later
identified as Officer Thiel, "[w]hy are you fucking
spraying us?" (Id. at 46:9; 44:19-20.) As
Officer Thiel and Kallner stood "in the middle of the
street," Officer Thiel "held out his arm and
sprayed [Kallner] in the face." (Id. at
"was in a lot of pain" and "scream[ed] for
help." (Id. at 51:20-21.) Other protestors
assisted Kallner to the sidewalk and gave him water and
breast milk to flush out his eyes. (Id. at
51:20-52:15.) Kallner then went into an ambulance.
(Id. at 52.15-22.) The medic let him sit for a few
minutes to calm down but did not treat him. (Id.)
Kallner exited the ambulance, having regained his sight, and
received a ride home. (Id. at 56:2-4; 53:17-18.) His
pain lasted about twenty-four hours. (Id. at
58:11-13.) His clothes were ruined. (Id. at 59:3-9.)
He has since stopped attending street protests because of the
incident. (Id. at 59:16-60:3.)
Plaintiff Ellen Abdur-Rahim's Experience on January 30,
marching from the Statehouse to the Franklin County
courthouses and back, Abdur-Rahim stood with the crowd in the
Intersection. (Abdur-Rahim Dep. 65, 67-68.) Abdur-Rahim was
in the "front line" of the crowd, directly north of
the line of police officers. (Id. at 64:23-65:1.)
She admits that from about 8:15 p.m. to 9:00 p.m., police
issued dispersal orders but many people, including herself,
chose to stay in the Intersection. (Id. at
67:12-15.) Abdur-Rahim told other protestors that the police
were going to pepper spray the group. (Id. at
70:11-12.) But the crowd-as well as Abdur-Rahim-"did
[not] want to leave the streets." (Id. at
in the Intersection and close to the line of police officers,
Abdur-Rahim stood behind a large banner when the first round
of pepper spray was deployed. (Defs.' Mot. Summ. J., Ex.
T, Ex. U, ECF Nos. 63-16, 63-17.) She had her face covered
with her hijab. (Id.) Abdur-Rahim testified,
however, that the pepper spray "seeped through [her
hijab] because it [was] cotton." (Abdur-Rahim Dep.
then turned in the opposite direction and started slowly
moving "to get away from the pepper spray."
(Defs.' Mot. Summ. J., Ex V, ECF No. 63-18; Abdur-Rahim
Dep. 75:19-76:17, 90:18-20.) Officers begin moving north in
to the Intersection to clear the remaining protestors out of
the street. (Defs.' Mot. Summ J., Ex. C.) Officer Masters
used his left hand to give Abdur-Rahim a shove on the
shoulder and then sprayed mace in her face. (Id.;
Abdur-Rahim Dep. 76:8-9.) Abdur-Rahim then walked towards the
sidewalk to "find some type of relief."
(Id. at 76:13.) Her "body was burning,"
particularly her left eye. (Id. at 80:16-19.)
reunited with her friends on the sidewalk and then attempted
to wash her face in a pizza shop restroom. (Id. at
77:1-3; 79:3-19.) This did not relieve the pain.
(Id. at 79:20.) Next, she attempted to get help from
an EMT who stated he did not have anything to help her.
(Id. at 84:11-16.) Finally, she obtained a ride to a
friend's house. (Id. at 84:21-85:18.)
Abdur-Rahim experienced pain and burning from the pepper
spray and her mental health has since suffered. (Id.
at 94:16-18, 96:6-23.)
assert three causes of action in their Third Amended
Complaint. They bring two Section 1983 claims against all
Defendants for violating Plaintiffs' First Amendment
rights to be free from retaliation and Fourth Amendment
rights to be free from excessive force. Plaintiffs' also
bring state law claims for assault and battery against
Officers Masters and Thiel. On July 12, 2019, Defendants
moved for summary judgment on all of Plaintiffs' claims.
On July 16, 2019, Plaintiffs moved for summary judgment on
their excessive force claims against Officers Masters and
Thiel and their assault and battery claims. The parties have
fully briefed those cross-motions; thus, they are ripe for
judgment is appropriate "if the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The movant has the burden of establishing that there
are no genuine disputes of material fact, which may be
accomplished by demonstrating that the non-moving party lacks
evidence to support an essential element of its case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Barnhart v. Pickrel, Schaeffer & Ebeling
Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). To avoid
summary judgment, the non-movant "must do more than
simply 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 (1986); accord
Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir.
1993). "[S]ummary judgment will not He if the dispute
about a material fact is 'genuine,' that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
evaluating a motion for summary judgment, the evidence must
be viewed in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59(1970); see Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (stating that the court
must draw all reasonable inferences in favor of the nonmoving
party and must refrain from making credibility determinations
or weighing evidence). Further, the existence of a mere
scintilla of evidence in support of the nonmoving party's
position will not be sufficient; there must be evidence on
which the jury reasonably could find for the nonmoving party.
Anderson, 477 U.S. at 251; see Copeland v.
Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also
Matsushita, 475 U.S. at 587-88 (finding reliance upon
mere allegations, conjecture, or implausible inferences to be
insufficient to survive summary judgment).
the parties have filed cross-motions for summary judgment.
When both parties seek to resolve a case with cross-motions
for summary judgment, the legal standard does not change.
Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 3
87 (6th Cir. 2016). Each party, as a movant for summary
judgment, bears the burden of establishing that no genuine
issue of material fact exists and that it is entitled to a
judgment as a matter of law. Id. Therefore, the fact
that one party fails to satisfy that burden on its own Rule
56 motion does not automatically indicate that the opposing
parties have satisfied the burden and should be granted
summary judgment on the other motion. In reviewing
cross-motions for summary judgment, courts must evaluate each
motion's merits and view all facts and inferences in the
light most favorable to the non-moving party. Wiley
v. United States, 20 F.3d 222, 224 (6th Cir.
1994) (citing Taft Broad, v. United States, 929 F.2d
240, 248 (6th Cir. 1991)).
1983 provides in relevant part the following:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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
42 U.S.C. § 1983. A prima facie case under
Section 1983 requires (1) conduct by an individual acting
under color of state law, and (2) this conduct must deprive
the plaintiff of rights secured by the Constitution or laws
of the United States. Day v. Wayne Cty. Bd. of
Auditors, 749 F.2d 1199, 1202 (6th Cir. 1984) (citing
Parratt v. Taylor, 451 U.S. 527, 535 (1981)).
Section 1983 merely provides a vehicle for enforcing
individual rights found elsewhere and does not of itself
establish any substantive rights. See Gonzaga Univ. v.
Doe, 536 U.S. 273, 285 (2002). Plaintiffs specifically
assert that Defendants violated the Fourth Amendment's
prohibition on excessive force and the First Amendment's
right to speak, protest, and assemble. (Third Am. Compl.,
¶¶ 86-87, 92-93.)
Count I: Plaintiffs Allege Officers Masters and Thiel
Violated the Fourth Amendment's Prohibition on the Use of
analyze excessive force claims brought under Section 1983,
courts must first identify the specific constitutional right
that has allegedly been infringed. See Graham v.
Connor, 490 U.S. 386 (1989). If the plaintiff was free
when the incident occurred and the officer used force to
arrest or seize the plaintiff, then the claim is analyzed
under the Fourth Amendment's reasonableness standard.
Aldini v. Johnson, 609 F.3d 858, 865 (6th Cir. 2010)
(citation omitted). If the officer did not arrest or seize
the plaintiff, then the claim will be analyzed under the
Fourteenth Amendment's substantive due process component.
Ciminillo v. Stretcher, 434 F.3d 461, 465 (6th Cir.
2006); see also Dunigan v. Nobel, 390 F.3d 486, 492
n.7 (6th Cir. 2004) ("Absent a seizure, an individual
injured as a result of police misconduct may pursue a
substantive due process claim."). "Thus, in
determining whether to apply the Fourth or the Fourteenth
Amendment to [the plaintiffs] excessive-force claim, the
proper inquiry is whether [the plaintiff] was seized."
Id. (citing Cry. of Sacramento v. Lewis,
523 U.S. 833, 842-43 (1998)).
and Defendants both move for summary judgment regarding
Plaintiffs' claim that the individual defendant officers
used excessive force against Plaintiffs. The parties disagree
as to whether the officers "seized" Plaintiffs, as
the Fourth Amendment employs the term.
Fourth Amendment Seizure
Fourth Amendment context, a person is seized when an officer,
"by means of physical force or show of authority,
terminates or restrains [the person's] movement through
means intentionally applied." United States v.
Jones, 673 F.3d 497, 501 (6th Cir. 2012) (quoting
Brendlin v. California, 551 U.S. 249, 254 (2007)). A
seizure can occur without actual physical restraint if,
"in view of all circumstances surrounding the incident,
a reasonable person would have believed that he was not free
to leave." Michigan v. Chesternut, 486 U.S.
567, 573 (1998) (internal quotation marks omitted). In
addition, an individual must actually yield to the show of
authority to be seized within the meaning of the Fourth
Amendment. Brendlin, 551 U.S. at 254; see United
States v. Johnson, 620 F.3d 685, 690 (6th Cir. 2010);
California v. Hodari D., 499 U.S. 621, 626 (1991)
(noting a seizure "requires either physical
force . .. or, where that is absent,
submission to the assertion of authority.")
(emphasis in original).
example, in Ciminello v. Streicher, a police officer
shot the plaintiff with a beanbag propellent, told him to
remain on the ground, and then instructed him to report to
other officers nearby. 434 F.3d 461, 463-64 (6th Cir. 2006).
The Sixth Circuit found that the officers had seized the
plaintiff and thus, the district court properly analyzed his
excessive force claim under the Fourth Amendment.
Id. at 466. The Sixth Circuit noted that the
plaintiff was "the direct target of police conduct"
and the type of force used indicated that the defendant
"intended to stop [the plaintiff] from coming any
closer." Id. at 465-66 (citing Claybrook v.
Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (noting
that "the authorities could not 'seize' any
person other than the one who was a deliberate object of
their exertion of force")). The Sixth Circuit also noted
that the fact "[t]hat [the plaintiff] was not eventually
placed in handcuffs or taken to the police station does not
preclude a determination that he was seized."
Id. at 466; see also Terry v. Ohio, 392
U.S. 1, 16 (1967) ("It is quite plain that the Fourth
Amendment governs 'seizures' of the person which do
not eventuate in a trip to the station house and prosecution
contrast, in McKeawn v. Hairston, our sister
district court found that when an officer moved a woman out
of his way with physical force, he did not seize her. No.
05-73244, 2007 U.S. Dist. LEXIS 43490, at *9 (E.D. Mich. June
15, 2007). The court stated that "there [was] no
evidence that an objective person in [the plaintiffs]
position would have believed she was restrained,
i.e., she was not free to leave." Id.
Distinguishing Ciminillo, the court noted that
"the physical force was not accompanied by an effort to
restrain or apprehend [the plaintiff.]" Id. at
*8; see also Ellsworth v. City of Lansing, No.
99-1045, 2000 U.S. App. LEXIS 2049, at *5 (6th Cir. Feb. ...