Northrup v. City of Toledo Police Div.

• Decision Date: 30 September 2014
• Docket Number: No. 3:12–cv–01544.,3:12–cv–01544.
• Citation: 58 F.Supp.3d 842
• Parties: Shawn NORTHRUP, Plaintiff v. CITY OF TOLEDO POLICE DIVISION, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

58 F.Supp.3d 842

Shawn NORTHRUP, Plaintiff

v.CITY OF TOLEDO POLICE DIVISION, et al., Defendants.

No. 3:12–cv–01544.

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

Filed Sept. 30, 2014.

Daniel T. Ellis, Lydy & Moan, Sylvania, OH, for Plaintiff.

Adam W. Loukx, John T. Madigan, City of Toledo, Department of Law, Toledo, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

JEFFREY J. HELMICK, District Judge.

I. Introduction

Before me is the motion of Defendants the City of Toledo Police Division, Officer David Bright, Officer Donald Comes, and Sergeant Daniel Ray, for summary judgment. (Doc. No. 24). Plaintiff Shawn Northrup opposes the Defendants' motion. (Doc. No. 38). The Defendants have filed a reply. (Doc. No. 44). For the reasons stated below, the Defendants' motion is granted in part and denied in part.

II. Background

On the evening of June 16, 2010, Northrup was walking down a street in his neighborhood, with his wife, daughter, grandson, and their Yorkshire terrier, and a handgun holstered on his right hip, when Alan Rose drove by on a motorcycle. Northrup and Rose did not know each other, but Rose stopped his motorcycle and began telling Northrup that he could not walk around in public while openly carrying a handgun. Northrup and his wife told Rose that open carry of a firearm is legal in Ohio, but the conversation quickly devolved into an argument. After a few minutes, Northrup and his family continued walking while Rose called 911. A dispatcher with the Toledo, Ohio Police Division sent Officers Comes and Bright, as well as Sergeant Ray, to investigate.

Officer Bright arrived first. He stopped and exited his car and approached Northrup and his family from behind, while on foot. The parties dispute the exact sequence of the events that took place next. Northrup testified his daughter informed him when she saw Officer Bright's car driving down the street. Northrup's cell phone was clipped to his belt, next to his holster. He took his cell phone off of his belt and accessed the camera feature in order to record the impending encounter with the officer. (Doc. No. 28 at 32–33). When Officer Bright approached, he said “excuse me” to get Northrup's attention. (Id.; Doc. No. 26 at 37). Northrup then turned toward Officer Bright with his cell phone in one hand and the dog's leash in the other. (Doc. No. 28 at 33).

Officer Bright testified he said excuse me and asked Northrup to hand the dog leash to his wife. At this point, Officer Bright states Northrup reached back to remove his cell phone. Officer Bright thought Northrup had made a “furtive movement” toward his handgun. (Doc. No. 26 at 37). Officer Bright then placed his hand on his holstered weapon and ordered Northrup to hand his cell phone and the dog leash to his wife. He ordered Northrup to turn around and place his hands above his head while he removed Northrup's gun from the holster. Officer Bright asked for and received Northrup's driver's license, before handcuffing Northrup and placing him in the back seat of his police cruiser. While Officer Bright entered Northrup's personal information into the computer in his cruiser, Sergeant Ray arrived. Sergeant Ray and Officer Bright discussed the situation before Sergeant Ray contacted the Detective Bureau to determine if Northrup could be charged with committing an offense. Following this phone call, Officer Bright issued Northrup a citation for failure to disclose personal information; this charge ultimately was dismissed following the request of a City of Toledo prosecutor.

III. Standard

A district court shall grant a party's motion for summary judgment if the movant demonstrates there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant may meet its burden by showing there is an absence of evidence to support an element of a claim on which the nonmovant has the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant has satisfied its burden, the nonmovant then must set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir.2008), and all reasonable inferences are drawn in the nonmovant's favor. Krause v. Jones, 765 F.3d 675, 678–79 (6th Cir.2014). A factual dispute is genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is material only if its resolution might affect the outcome of the case under the governing substantive law. Rogers v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir.2013).

IV. Analysis

Northrup alleges the Defendants violated (1) his First Amendment right to symbolic speech; (2) his right to bear arms under the Second Amendment to the United States Constitution and Article I, section 4 of the Ohio Constitution ; and (3) his Fourth Amendment protections against unreasonable searches and seizures and use of excessive force. He also alleges state law claims of assault, battery, wrongful arrest, and malicious prosecution.

In his complaint, Northrup alleges his Fifth and Fourteenth Amendment rights were violated when “Officer Bright violated Mr. Northrup's right to bear arms and deprived him of liberty without due process of law when he seized him for exercising that right absent any lawful justification or probable cause.” (Doc. No. 1 at 13). Though coached in due process terms, the substance of Northrup's allegation is that he was seized unlawfully. Therefore, I will evaluate this allegation in the context of his Fourth Amendment claims. See Albright v. Oliver, 510 U.S. 266, 273–74, 277, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Fourth Amendment, and not substantive due process, provides a basis for claims of arrest without probable cause).

In his opposition brief, Northrup argues the Defendants violated Ohio Revised Code § 2921.52, which criminalizes a “sham legal process,” and asserts a claim against Officer Bright for “vindictive enforcement.” (Doc. No. 38 at 30–32). Northrup did not include either of these claims in his complaint or file a motion to amend his complaint in the nearly two years between the initiation of this action and the Defendants' filing of their summary judgment motion. I will not consider these claims, as a plaintiff may not assert new legal claims for the first time in opposition to a summary judgment motion. Tucker v. Union of Needletrades, Industrial, and Textile Emp., 407 F.3d 784, 788–89 (6th Cir.2005) ; Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir.2007).

A. Section 1983 and Qualified Immunity

To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove the defendant deprived the plaintiff of a right protected by the Constitution or laws of the United States while acting under the color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). State laws “cannot create federal constitutional rights actionable under § 1983.” Wilson v. Morgan, 477 F.3d 326, 332 (6th Cir.2007) (citing Harrill v. Blount Cnty., 55 F.3d 1123, 1125–26 (6th Cir.1995) ).

The doctrine of qualified immunity shields state actors from § 1983 liability based upon their discretionary acts. Anderson v. Creighton, 483 U.S. 635, 638–40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Once the defendant raises the qualified immunity defense, the plaintiff bears the burden of proving (1) he was deprived of a constitutionally-protected right (2) that was “so clearly established that a reasonable officer would understand that his or her actions would violate that right.” Thomas v. Cohen, 304 F.3d 563, 569 (6th Cir.2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ); see also Anderson, 483 U.S. at 640, 107 S.Ct. 3034 (“[I]n the light of pre-existing law[,] the unlawfulness [of the official's actions] must be apparent.”).

B. Officer Comes

The Defendants argue they are entitled to summary judgment on all of Northrup's claims against Officer Comes because his only involvement in this incident was to talk to Rose by telephone about what happened between Rose and Northrup. Northrup does not dispute Officer Comes's testimony that he had no involvement with the arrest and offers no evidence to show Officer Comes played any role at all in the alleged violation of Northrup's rights. I conclude the Defendants have shown the absence of any dispute of material fact and are entitled to summary judgment on all claims against Officer Comes as a matter of law.

C. First Amendment

Northrup alleges the Defendants violated “his right to symbolic speech when Officer Bright seized and harassed Mr. Northrup without probable cause and based solely upon his openly carrying a holstered firearm.” (Doc. No. 1 at 12). He contends he “was engaged in symbolic speech by openly carrying a firearm in a holster” and that this “expressed his opinion that Ohioans should exercise their fundamental right to bear arms and educate[d] the public that open carry is permissible in Ohio.” (Id. ). Defendants contend Northrup's First Amendment claim fails because (1) he was not engaged in protected speech and (2) even if Northrup's conduct constitutes protected speech, there is no evidence Officer Bright intended to retaliate against Northrup because of his speech. (Doc. No. 44 at 2–3). Defendants are entitled to qualified immunity on Northrup's First Amendment claim because he fails to show he was deprived of a constitutionally-protected right.

The First Amendment prohibits government officials from retaliating against an individual for the individual's protected speech. Hartman v. Moore, 547 U.S. 250, 256,...