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Abdur-Rahim v. City of Columbus

United States District Court, S.D. Ohio, Eastern Division

December 2, 2019

ELLEN ABDUR-RAHIM, et al., Plaintiffs,
CITY OF COLUMBUS, et al., Defendants.

          Chelsey M. Vascura Magistrate Judge



         Plaintiffs 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.

         For the 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).


         On 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.)

         In 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 following:

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.


         As 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. 29:16-31:5.)

         When 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.)

         Protestors 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.)

         The 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.)

         Directly 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 ¶ 25.)

         After 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.)

         Around 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.)

         A. Plaintiff Harrison Kallner's Experience on January 30, 2017

         Kallner 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.)

         When 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 44:10-11, 21-22.)

         Kallner "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.)

         B. Plaintiff Ellen Abdur-Rahim's Experience on January 30, 2017

         After 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 70:12-13.)

         Remaining 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. 103:1-5.)

         She 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.)

         She 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.)

         C. Procedural History

         Plaintiffs 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.[1] 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 review.


         Summary 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).

         In 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).

         Here, 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)).


         Section 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 redress ....

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.)

         A. Count I: Plaintiffs Allege Officers Masters and Thiel Violated the Fourth Amendment's Prohibition on the Use of Excessive Force

         To 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)).

         Plaintiffs 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.

         1. Fourth Amendment Seizure

         In the 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).

         For 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 for crime.").

         In 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. ...

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