Hils v. Davis

Decision Date14 March 2022
Docket Number1:21cv475
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
PartiesDan Hils, et al., Plaintiffs, v. Gabriel Davis, et al., Defendants.

Dan Hils, et al., Plaintiffs,

Gabriel Davis, et al., Defendants.

No. 1:21cv475

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

March 14, 2022


Michael R. Barrett United States District Judge

This matter is before the Court upon Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2); Defendants' Motion to Dismiss (Doc. 14); Plaintiffs' Motion for Leave to File a Supplement to their Memorandum in Opposition to the Motion to Dismiss (Doc. 17); and Defendants' Supplemental Motion to Dismiss (Doc. 19). These motions have been fully briefed. (Doc. 11, 12, 15, 16, 18, 20, 21).

As a preliminary matter, Plaintiffs have filed a Motion for Leave to File a Supplement to their Memorandum in Opposition to the Motion to Dismiss (Doc. 17), which seeks to address the qualified immunity argument raised by Defendants in their Motion to Dismiss. Because the Court does not reach the issue of qualified immunity, Plaintiffs' Motion for Leave is DENIED as MOOT.


Plaintiffs Dan Hils, Charles Knapp, Ken Byrne, and Adarryl Burch are current employees of the Cincinnati Police Department.

Defendants Gabriel Davis and Ikechuckwu Ekeke are employees of the Citizen Complaint Authority (“CCA”). (Id., ¶¶7, 8). The CCA is a department within the City of


Cincinnati. The CCA is responsible for investigating complaints of police misconduct. Defendant Davis is the Director of the CCA and Defendant Ekeke is an investigator with the CCA. (Id., ¶¶7, 8).

Knapp, Byrne, and Burch, were the subjects of citizen complaints before the CCA. (Doc. 1, ¶¶ 3-5). In his role as president of the Fraternal Order of Police, Lodge #69 (“FOP”), Hils represented the officers during the CCA's investigation of these complaints. (Doc. 1, ¶ 2). Hils became concerned with the “selective recording technique” used by Ekeke during interviews with officers. (Id., ¶ 13). According to the Complaint, Ekeke would turn off the CCA recording device at various times, which resulted in material, exculpatory statements made by the officers not being recorded. (Id.) In response, Hils began to make his own recordings of the interviews with the CCA. (Id., ¶ 15). However, when Hils has attempted to record the interviews, Ekeke and Davis terminated the interviews and threatened the officers with discipline for recording the interviews. (Id., ¶ 16). Plaintiffs have attached a script to their Complaint which contains the CCA policy regarding recording. (Doc. 1, PAGEID 9). It appears that this script was used during interviews with officers, and the officers were told:

At this time, I'm advising you that CCA does not permit any persons who are being interviewed or representatives of those persons to make their own recordings of witness interviews or utilize personal recording devices during the interview


Plaintiffs claim Defendants' no-recording policy violates their First Amendment right to record public officials in the performance of their duties. (Id., ¶¶ 23-24). Plaintiffs also bring a First Amendment retaliation claim, claiming that Defendants retaliated against Plaintiffs for their assertion of their rights. (Id., ¶¶ 27-29). Plaintiffs' claims are brought


pursuant to 42 U.S.C. § 1983.

In their Motion for Temporary Restraining Order and Preliminary Injunction, Plaintiffs seek an order enjoining Defendants from “preventing the tape or video recording by Plaintiff Hils in any City of Cincinnati City Complaint Authority matter in which he is representing any City of Cincinnati Police Officer, or the tape or video recording by any other Plaintiff of an interview before the City of Cincinnati City Complaint Authority in which that Plaintiff is the subject of the investigation;” and enjoining Defendants “from taking any adverse action against any of the Plaintiffs solely due to their tape or video recording proceedings before the City of Cincinnati City Complaint Authority.” (Doc. 2)

In their original Motion to Dismiss, Defendants move pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiffs' claims. Defendants argue: (1) Plaintiffs lack standing to challenge the CCA recording policy because they have not suffered any cognizable injury; (2) Plaintiffs have raised claims which constitute labor disputes subject to the exclusive jurisdiction of the Ohio State Employment Relations Board (“SERB”); (3) Plaintiffs have failed to state a claim upon which relief may be granted because there is no First Amendment right to record CCA interviews; and (4) Davis and Ekeke, are entitled to qualified immunity.

In their supplemental Motion to Dismiss, Defendants explain that concurrent with this lawsuit, the FOP filed a charge with SERB alleging that based on the same set of events, the City committed an unfair labor practice by preventing the FOP “from recording interviews.” (Doc. 11-1). Defendants explain further that on December 2, 2021, the City and the FOP entered into a settlement agreement resolving the unfair labor practice charge. (See Doc. 19-1). According to Defendants, the CCA has stopped using the


“script” or “policy” which was attached as Exhibit A to Plaintiffs' Complaint, and the settlement clarifies the recording policies and practices of the CCA. (Doc. 1, PAGEID 9). Defendants have filed a copy of the settlement agreement between the City and the FOP, which provides that the City agrees to the following: . . .

2. Should the Citizen Complaint Authority choose to conduct an interview of an FOP member, the CCA will utilize at least one recording device that will always be activated when the FOP member enters the room for their CCA interview.
3. With respect to the operation of its recording devices, no CCA recording device will be turned off until the interview is concluded, unless the Investigator announces a break in the interview. Before any recording is stopped, the Investigator shall advise all parties the recording is being stopped and note the start and stop time on the record. Investigators will refrain from asking questions during any break in recording.
4. Upon their request, FOP members will be provided a copy of the recording following the conclusion of their CCA interview.

(Doc. 19-1, PAGEID 160). Defendants argue that as a result of this settlement, Plaintiffs' constitutional claims for declaratory and injunctive relief are now moot.


1. Preliminary injunction standard

“Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.” D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326 (6th Cir. 2019) (citing Benisek v. Lamone, 138 S.Ct. 1942, 1943-44 (2018)). These four factors are “to be balanced, not prerequisites that must be met.” Jones v. City of Monroe, 341 F.3d 474,


476 (6th Cir. 2003) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1984)).

However, as the Sixth Circuit has recently explained:

“When a party seeks a preliminary injunction on the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will be the determinative factor.'” [City of Pontiac Retired Emps. Ass'n v.] Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)). In addition to demonstrating a likelihood of success on the substantive claims, a plaintiff must also show a likelihood of success of establishing jurisdiction. Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018). If a plaintiff cannot show a likelihood of jurisdiction, then the court will deny the preliminary injunction. Id.

Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021). Here, Defendants have raised two jurisdictional challenges: standing and mootness. The Court will address those challenges before turning to a likelihood of success on the substantive claims.

2. Article III Mootness

Defendants maintain that Plaintiffs' claims for or injunctive and declaratory relief are moot because the settlement agreement legally binds the City to its new policies; and there is no basis for a belief that the City will revert to the now defunct recording policy. Plaintiffs respond that the settlement between the FOP and the City does not provide them with the relief they seek because it does not permit the officers to record the interviews and it does not prohibit retaliation against Plaintiffs. Plaintiffs also point out that the Complaint seeks money damages which are not addressed by the change in policy.

As the Sixth Circuit has recently reiterated: “Mootness is a high hurdle. The government must show that a court could order no ‘effectual relief whatever' for the plaintiffs' injury.” Vitolo v. Guzman, 999 F.3d 353, 359 (6th Cir. 2021) (quoting Chafin v.


Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013); see also Ramsek v. Beshear, 989 F.3d 494, 499 (6th Cir. 2021) (“To assess whether a case is moot, we ask ‘whether the relief sought would, if granted, make a difference to the legal interests of the parties.'”) (quoting McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).

“Voluntary cessation of the alleged illegal conduct does not, as a general rule, moot a case and ‘deprive the tribunal of power to hear and determine the case.'” Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019) (quoting Los Angeles Cty. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). “Voluntary cessation will only moot a case where there is ‘no reasonable expectation that the alleged violation will recur,' and ‘interim...

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