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Case: 1:16-cv-00999-SJD Doc #: 42 Filed: 08/10/18 Page: 1 of 28 PAGEID #: 1433
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Kevin Gray, :
: Case No. 1:16-cv-999
Plaintiff, :
: Judge Susan J. Dlott
v. :
: Order Granting in Part and Denying in
Jasen Hatfield, et al., : Part Defendants’ Motion for Summary
: Judgment
Defendants. :
:
This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. 36),
to which Plaintiff responded in opposition (Doc. 39) and Defendants replied (Doc. 41). For the
reasons that follow, Defendants’ Motion will be GRANTED IN PART AND DENIED IN
PART.
I. BACKGROUND1
A. Facts
This 42 U.S.C. § 1983 civil rights action arises from a late-night police stop of a driver on
purported reasonable suspicion of drunk driving. Because the accounts of the stop and
subsequent arrest vary, the Court will begin with the officers’ version of events and next turn to
Plaintiff’s version.
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Except as otherwise indicated, background facts are drawn from Defendants’ Proposed Undisputed Facts (Doc. 36-
1) to the extent those facts are admitted in Plaintiff’s response thereto (Doc. 39-1). Where the parties do not explicitly
agree on any statement of fact, the Court cites to the portion of the record providing support for the statement.
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1. Events of December 12, 2014
a. Account of Deputy Hatfield, Corporal Brockman, and Deputy Brown
On December 12, 2014, Jasen Hatfield, then a Deputy Sheriff with the Butler County
Sheriff’s Office, was working third-shift road patrol and traveling north on State Route 128 from
the Ross Township area to the City of Hamilton, Ohio. As he approached the intersection of
New London Road and State Route 128, he observed Plaintiff Kevin Gray’s vehicle make a turn
onto State Route 128. (Trial Transcript, Doc. 33-2 at PageID 632 (Hatfield testimony).) State
Route 128 is a four-lane highway with a physical divider between the north and south lanes. (Id.
at PageID 631.)
At state court trial on the subsequent charges, Deputy Hatfield described: “What drew my
attention to him with the turn was when he made the turn it was actually a wide turn. He actually
turned into the curb lane of State Route 128 and then back into the lane of travel that I was in. It
was a very wide, slow turn.” (Id. at 632.) Deputy Hatfield was “150, 200 yards” away from the
car when it was closest to him and had to apply the brakes on his car. (Id. at 632–33.) Gray was
not traveling at a high rate of speed, and Deputy Hatfield was traveling 50 miles an hour and
approaching him quickly, so he had to apply the brakes to avoid rear-ending him. (Id. at 633.)
The turn was approximately 60 feet away from Major Leagues bar. (Doc. 32-1 at PageID 156.)
Deputy Hatfield proceeded to travel north on State Route 128 two to three car lengths
behind Gray’s vehicle, and he observed marked lane violations between where Gray turned and
the upcoming intersection. (Trial Transcript, Doc. 33-2 at PageID 634.) As they approached the
intersection, the light changed from red to green, and once they got through the intersection, he
saw more marked violations. (Id.) He testified that Gray “was weaving within his lane, having
difficulty maintaining his lane” and “[h]is tires on the driver’s side actually hit the marked lanes
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every once in a while on a couple of occasions actually.” (Id. at 635.) He saw “four to [f]ive”
marked lane offenses that he believes gave him cause to stop Gray. (Id.) After these
observations, Deputy Hatfield initiated an investigatory stop; Gray eventually pulled over at Zips
Auto Body. (Id. at 637–38.)
Deputy Hatfield pulled into Zip’s Auto Body behind Gray and called in the traffic stop at
that time. (Id. at 639.) Deputy Hatfield exited his vehicle and approached the driver’s side of
Gray’s car. (Id. at 641.) Gray was rolling his window down as he approached. (Id. at 644.)
Deputy Hatfield observed a strong odor of an alcoholic beverage that was emitting from the
inside of the car. (Id. at 645.) Gray asked why he was stopped, and in speaking with him, Gray
slurred his speech and had glassy, bloodshot eyes. (Id. at 646.) When asked for his license,
Gray fumbled through his wallet to locate it. (Id.)
During this time, Deputy Hatfield noticed the passenger, Christopher Ebbing, was sitting
in the passenger seat not wearing a seatbelt. (Id.) Hatfield asked him for his license; Ebbing said
no, and Deputy Hatfield responded that in order to write him a seatbelt ticket, he needed to know
his identity. (Id. at 646–47.) Ebbing made a retort along the lines of “go back to your car and
write the fucking ticket,” and at this time, Deputy Hatfield says his attention was diverted from
Gray to Ebbing. (Id. at 647.) He approached the passenger side door, opened the door, and
asked Ebbing to get out. (Id.) Ebbing “indicated” that he wasn’t going to step out; at that point,
Deputy Hatfield reached in, grabbed Ebbing’s right arm to “escort” him out of the car. (Id.)
Ebbing resisted and pulled away, so Deputy Hatfield pulled harder. (Id.) “At that point, he was
obstructing my vehicle stop,” and Deputy Hatfield felt he had a basis to arrest Ebbing. (Id.) He
testified that the two “ended up on the ground inside the area where the passenger side door was
open and the parking lot. I was on top of Mr. Ebbing. He was struggling, pulling away from me,
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resisting. That’s when I got on my radio and indicated to dispatch that I had an individual
fighting me.” (Id. at 647–48.)
While he was trying to control Ebbing, Deputy Hatfield observed Gray fidgeting around
in between his legs and the center console area of the car, which made him “pretty nervous.” (Id.
at 648.) Once Ebbing was controlled, Deputy Bill Brown of the Butler County Sheriff’s Office
pulled up, and he got Gray out of his car. (Id.) Deputy Hatfield arrested Ebbing for obstructing
official business and placed him in the back of his patrol car. (Id. at 649.)
Deputy Brown heard Deputy Hatfield call in that he “had one fighting with him,” and
responded to the call in less than thirty seconds. (Id. at 686 (Brown testimony).) He arrived
when Deputy Hatfield was on top of Ebbing in the Zips Auto Body parking lot. (Id.) As he
exited his vehicle, Deputy Hatfield told him that there was still a driver in the car who was
moving his hands around and to check on him. (Id. at 687.) Gray was positioned with his hands
on the steering wheel when Deputy Brown approached the driver’s door window. (Id. at 688.)
Deputy Brown told the driver to step out of the vehicle. (Id.) As he stepped out, Deputy Brown
noticed a magazine and bullet on the driver’s side floorboard by Gray’s feet. (Id.) Deputy
Brown asked, “Kevin, where’s the gun?” and Gray responded that it was in the car. (Id. at 689.)
At that time, Gray was patted down and placed in handcuffs. (Id.) Deputy Brown noticed an
odor of alcohol coming off of him, as well as mumbled speech. (Id. at 692.)
At this time, Corporal Michael Brockman of the Butler County Sheriff’s Office was
arriving at the scene and he took control of Gray. (Id. at 689.) Deputy Brown then conducted a
search of the vehicle and located the firearm on the floorboard behind the passenger seat, with
the barrel pointed outward toward the passenger. (Id. at 689–91.) He also located a holster for
the gun under the driver’s seat. (Id. at 691.)
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When Corporal Brockman arrived on the scene, he placed Gray in the back of his vehicle.
(Id. at 704 (Brockman testimony).) Corporal Brockman noticed a strong odor of alcohol
emitting from the back of his cruiser. (Id.) Gray kept apologizing for his friend. (Id.)
Deputy Hatfield had a conversation with Gray while he was in the back of Corporal
Brockman’s vehicle. (Doc. 33-2 at PageID 649 (Hatfield testimony).) While he spoke with him,
Deputy Hatfield could smell a heavy odor of alcohol coming from him and observed slurred
speech and glassy, bloodshot eyes. (Id. at 650.) Deputy Hatfield asked if he had been drinking
that evening, and he said he had “five or six drinks.” (Id.) Gray was placed under arrest at that
time based on Deputy Hatfield’s observations, the heavy odor of alcohol, and Gray’s admission.
(Id. at 650.) Deputy Hatfield said it was obvious Gray was intoxicated: “just in speaking with
him in the short time that I did. It doesn’t take much common sense to know when someone’s
intoxicated.” (Id. at 650–51.)
Corporal Brockman transported Gray to the Sheriff’s headquarters. (Id. at 704–05
(Brockman testimony).) Once at the jail, Deputy Hatfield read the BMV 2255 form to Gray and
asked him to submit to a breathalyzer test. (Id. at 654–56, 673–74 (Hatfield testimony).) Gray
refused the test.
b. Account of Plaintiff
On the other hand, Gray’s version of events accounts a responsible designated driver
helping a drunk friend. Plaintiff attended a work Christmas party at Dave & Busters in
Springdale, Ohio on December 11, 2014, the day before he was arrested. Gray was at the
function from around 3:00 p.m. for about three hours, during which time he consumed three
bourbons, appetizers, and a full dinner. (Gray Dep., Doc. 32-1 at PageID 118, 121, 183–85.) He
went home after the event and went to bed around 10 or 10:30 p.m. (Id. at 185.) Gray had no
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other drinks that evening or in the early morning of December 12 prior to being pulled over by
Deputy Hatfield. (Id. at 182.)
Around 2:20 a.m. on December 12, Gray received a phone call from his friend, Ebbing,
who was intoxicated and unable to drive himself home from a bar – Major Leagues in Hamilton,
Ohio. (Trial Transcript, Doc. 33-3 at PageID 737–38 (Gray testimony).) Gray got up, got
dressed, and headed out to pick Ebbing up. (Id.) Major Leagues was closed when Gray arrived,
so he waited for Ebbing to exit. (Id. at 739.) While he was waiting for Ebbing, Gray realized
that his gun, for which he had a concealed carry license at that time, was accessible to the
passenger. (Id.) He dropped the magazine from the gun and put the gun behind the passenger
side seat, so it was out of reach, and he put the magazine underneath the driver’s seat. (Id.)
Leaving the bar, Gray made a right-hand turn, the only way you can leave the bar, onto
southbound State Route 128, or Pyramid Hill Boulevard. (Id.) After about 20 to 30 yards of
travel, there is a turn lane north of the concrete island. (Id.) Gray proceeded into the turn lane,
put on his turn signal, and made a left-hand turn into the continuous northbound lane of traffic on
State Route 128. (Id.) Based on the placement of the concrete median, Gray’s turn took him
into the far lane of travel on northbound State Route 128. (Id. at 740.) With his turn signal still
on, Gray merged back into the left lane of northbound State Route 128 and proceeded to a stop
light about sixty yards away. (Id. at 740–41.) When he made his turn, there was “not another
car in sight.” (Gray Dep., Doc. 32-1 at PageID 154.)
Gray came to a complete stop at the traffic light at the intersection of State Route 128 and
Pershing Avenue for about eight seconds when he noticed a police car coming up on him at a
rapid pace. (Trial Transcript, Doc. 33-3 at PageID 741 (Gray testimony).) Once through the
intersection, another concrete median separates the north and southbound lanes of traffic. (Id. at
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742.) As Gray drove past the concrete median, Deputy Hatfield activated his overhead lights to
initiate a traffic stop. (Id. at 743.) Gray proceeded to the first available location where he felt
safe to stop, Zips Auto Body at the intersection of B Street and Millikin Avenue. (Id.) Gray
pulled into the parking lot, brought the car to a stop, and lowered his window, anticipating
Deputy Hatfield to approach his side of the vehicle. (Gray Dep., Doc. 32-1 at PageID 158; Trial
Transcript, Doc. 33-3 at PageID 744 (Gray testimony).) Deputy Hatfield approached the vehicle
on the passenger side. (Doc. 33-3 at PageID 744 (Gray testimony).) After Deputy Hatfield
asked for Ebbing’s identification, Gray leaned over to Deputy Hatfield and informed him that
there was a gun in the vehicle. (Id.) Deputy Hatfield responded by telling Gray to “shut up and
keep your fucking hands on the steering wheel.” (Gray Dep., Doc. 32-1 at PageID 159.) Deputy
Hatfield made no other statements to Gray at the scene: he was not asked to produce his license,
registration, or insurance, and at no point did Gray admit he had consumed alcohol that evening.
(Id. at 174.)
Gray testified that at that point, Gray “ripped my passenger out of [my] vehicle and threw
him to the ground.” (Trial Transcript, Doc. 33-3 at PageID 744 (Gray testimony).) According to
Ebbing, Deputy Hatfield approached the vehicle from the passenger side, demanded his
identification, and when Ebbing asked what crime he committed, Deputy Hatfield demanded
identification again. (Doc. 32-2 at PageID 267.) Deputy Hatfield told Ebbing he was not
wearing his seatbelt and then pulled him out of the car and jumped on his back. (Id.)
According to Gray, Deputy Brown arrived at the scene, and “[t]he next thing I know, my
door is opened, I’m asked to step out of the vehicle, and turn around and place my hands on the –
on the vehicle. At that point in time I was patted down, handcuffed, and sat down behind my
vehicle.” (Doc. 33-3 at PageID 745 (Gray testimony).) Deputy Brown asked Gray where the
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gun was as he was getting out of the car. (Gray Dep., Doc. 32-1 at PageID 171.) Gray then sat
behind his car for a couple of minutes. (Id. at 172.) Corporal Brockman then arrived on the
scene. (Doc. 33-2 at PageID 701.) Gray was placed in the back of Corporal Brockman’s cruiser.
(Trial Transcript, Doc. 33-2 at PageID 701 (Brockman testimony).) Gray did not have a
conversation with Deputy Hatfield while in the back of Corporal Brockman’s cruiser. (Doc. 33-
3 at PageID 744–45.) He never admitted to drinking five or six drinks, and no field sobriety tests
were performed on the scene. (Id. at 745–46.) Gray was transported to the Butler County Jail
and refused a breathalyzer test.
2. Gray’s Criminal Trial and Corporal Brockman’s Dash Camera Footage
Plaintiff was charged with operating a vehicle while under the influence, a first degree
misdemeanor, in violation of Ohio Rev. Code § 4511.19(A)(1)(a); improper handling of firearms
in a motor vehicle, a fifth degree felony, in violation of Ohio Rev. Code § 2923.16(D)(1);
improper handling of firearms in a motor vehicle, a first degree misdemeanor, in violation of
Ohio Rev. Code § 2923.16(E)(1); marked lanes, a minor misdemeanor, in violation of Ohio Rev.
Code § 4511.33(A); and improper turn, a minor misdemeanor, in violation of Ohio Rev. Code §
4511.36. (Case No. CR2015-01-0041 Butler County Common Pleas Court).
The charges against Gray proceeded to trial in February 2016. (Doc. 33-2 and 33-3.)
During discovery prior to trial, Gray’s criminal attorney requested videos taken the night of
Gray’s arrest and was told by the Butler County Sheriff’s Office that none existed. (Doc. 1-2 at
PageID 23; Doc. 1-3 at PageID 24.) Yet, during trial, Deputy Hatfield testified—in contrast to
his prior testimony that none of the incident was preserved because “we don’t have videos in our
cars”—that Corporal Brockman’s camera was equipped with a dash camera, but that he did not
believe anything that was captured was “pertinent.” (Trial Transcript, Doc. 33-2 at PageID 651
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(Hatfield testimony); Suppression Hearing Transcript, Doc. 37-2 at PageID 1098 (Brockman
testimony).) Corporal Brockman later testified that he told Deputy Hatfield that he had a video
of the incident and “he passed it on. I always had it. It was just a fact of locating it.” (Trial
Transcript, Doc. 33-3 at PageID 727.)
As it turns out, Corporal Brockman was issued a camera in 2005, which had been in his
cruiser since the car was issued in 2011, and he routinely recorded traffic stops with his camera.
(Hatfield Dep., Doc. 32-3 at PageID 385; Doc. 33-2 at PageID 709, 736.) Deputy Hatfield
testified that Corporal Brockman would routinely play cruiser camera videos at the police
academy as well as while teaching. (Hatfield Dep., Doc. 32-3 at 392.) He would also play the
videos in his home. (Id.)
Corporal Brockman routinely recorded traffic stops using his camera, and when the video
tapes had gone all the way to the end, he would take them home and store them on a shelf in his
basement. (Doc. 32-4 at PageID 448.) Although he testified that it “wasn’t a secret” he had this
camera, Sheriff Jones and Chief Deputy Dwyer claim they were unaware that he had a dash
camera in his vehicle. (Id.; Jones Dep., Doc. 32-5 at PageID 502; Dwyer Dep., Doc. 32-8 at
PageID 585.) Corporal Brockman was disciplined regarding his failure to properly store the
video.
After the existence of the dash camera was revealed at trial, Corporal Brockman retrieved
the video from his home and brought it to court. (Doc. 33-3 at PageID 722.) He testified that the
computer system in his vehicle requires him to manually input the date and time each time he
starts the recorder with his cell phone. (Id. at 722–23.) He did this on the morning of Gray’s
arrest. (Id. at 722.) Corporal Brockman also testified that the relevant segment does not have
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audio, because he used the wrong settings that day. (Id. at 723.) The video was played at trial.
(Id. at 725–26.)2
The Court has reviewed the dash camera video that has been submitted into evidence in
this case. (Doc. 34.) It contains three separate video segments. The first video segment is the
relevant segment. It contains a menu screen where a date and time are shown being entered, 12-
11-2014 and 22:48. The video then cuts to a seconds-long shot of what looks to be a house.
That feed contains audio. The video then cuts to a gray, fuzzy screen, then a gray screen, then to
a roadway view of a car driving on a road at a date and time stamp of 12-12-14 and 02:54:23.
The Court can hear some noise in the background at a low volume, which sounds like an engine
and pulsing or siren sound. At about 02:56:04 a.m., the Court noticed a siren sound faintly in the
background as the cruiser approaches a scene with emergency vehicles. Most audibly, at about
02:56:26, in pulling into Zips parking lot, the Court hears a siren chirp. The car then pulls into
the parking lot, where the cruiser is stopped. Lights from at least two other cruisers can be seen
flashing. The cruiser parks, with the camera and dash facing parked cars away from the scene of
the arrest. No individuals are within view. At 3:00:05, the feed cuts to a gray fuzzy screen, then
a plain gray screen, for mere seconds. The feed resumes to a feed of the cruiser dash camera
looking at the same scene at 3:06:17 on the scene. We see an officer in front of a car with a
flashlight around 03:07:09 and then a police cruiser pulls into the parking lot around 03:10:08
followed by an officer emerging from the car. At 03:18:26, the car starts to move and the feed
cuts to a gray fuzzy screen, then a gray screen. The entire segment lasts about 21 minutes.
2
It is unclear to the Court, based upon a review of the Trial Transcript, whether the video played at trial included a
blue screen six seconds after 3:00 a.m. and the blue screen lasted for a period of six minutes. The video was played
for six minutes at trial, but beyond that the record is unclear on that point. (See id. at PageID 722–27.)
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Gray was acquitted of the charges brought by Deputy Hatfield. At jury trial, Gray was
convicted of improper handling a firearm in a motor vehicle in violation of Ohio Rev. Code §
2923.16(E)(1) for failure to promptly inform a law enforcement officer of his handgun, a charge
that was added by the prosecutor’s office while the case was at the grand jury. (Doc. 33-3 at
PageID 750.)
3. Investigation Regarding Deputy Hatfield
In June of 2015, Butler County Prosecutor, Mike Gmoser, raised concerns with Sheriff
Jones about whether Deputy Hatfield conducts impermissible and pretextual searches and
overcharges individuals to acquire overtime hours from court proceedings. (Doc. 1-4 at PageID
24–25.) In response, Sheriff Jones and Chief Deputy Anthony Dwyer tasked the detective
division of their office with investigating the concerns raised by Prosecutor Gmoser. (Dwyer
Dep., Doc. 32-8 at PageID 543.)
The investigation conducted by the Sheriff’s office looked at Deputy Hatfield’s arrests
beginning the day after the incident with Gray. (Id. at 566.) During the course of the
investigation, no one did any statistical analysis of Deputy Hatfield’s charging habits as
compared with other officers. (Id. at 571; Jones Dep., Doc. 32-5 at PageID 499.) The
investigation confirmed concerns with Deputy Hatfield’s conduct, referring to his use of
overtime as “extraordinary.” (Doc. 32-7.) However, it did not find anything to support criminal
allegations and determined that those allegations were unsubstantiated. (Id.) The investigation
noted that it “appears that there is a widely held belief that Deputy Hatfield does not like to plead
out cases and files charges that ‘most officers’ would not file in order to obtain court overtime;
however, nobody we have spoken to can provide us with any evidence to support this belief.”
(Id. at 526.) Deputy Hatfield’s supervisors were purportedly instructed to monitor his criminal
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charges going forward. (Id. at 524.) However, Corporal Brockman, Deputy Hatfield’s direct
supervisor, testified that he was never instructed to monitor the tickets Deputy Hatfield was
writing. (Doc. 32-4 at PageID 430, 445–46.) Moreover, Chief Deputy Dwyer and Sheriff Jones
were unable to identify anyone responsible for monitoring Deputy Hatfield’s charging habits
following the conclusion of the investigation. (Jones Dep., Doc. 32-5 at PageID 494; Dwyer
Dep., Doc. 32-8 at PageID 572.) Chief Deputy Dwyer met with Deputy Hatfield to address
concerns and counsel Deputy Hatfield on issues involving the case that precipitated Prosecutor
Gmoser’s letter.
C. Procedural History
Plaintiff initiated this civil action on October 12, 2016 by filing a Complaint against
Deputy Hatfield, Corporal Brockman and Butler County Sheriff Richard K. Jones, as well as
John Does 1-10 of the Butler County Sheriff’s Department. (Doc. 1.) In his Complaint, Plaintiff
asserts the following causes of action:
Count 1: Unlawful seizure, arrest, and detention by Deputy Hatfield in violation of 42

U.S.C. § 1983;
Count 2: Supervisory liability by Sheriff Jones in violation of 42 U.S.C. § 1983;
Count 3: Failure to train by Sheriff Jones in violation of 42 U.S.C. § 1983;
Count 4: Inadequate supervision by Sheriff Jones and Does 1-10 in violation of 42 U.S.C.
§ 1983;
Count 5: Ratification by Sheriff Jones in violation of 42 U.S.C. § 1983;
Count 6: False arrest by Deputy Hatfield in violation of 42 U.S.C. § 1983;
Count 7: Spoliation of evidence by all Defendants; and
Count 8: Intentional infliction of emotional distress.
On March 15, 2018, Defendants filed a Motion for Summary Judgment (Doc. 36) as to all
claims. Plaintiff responded in opposition, but conceded summary judgment on Counts 2, 3, 4,
and 6. (Doc. 39 at PageID 1312.) For the reasons that follow, material disputes of fact preclude
summary judgment on Counts 1 and 5 and the Motion will be DENIED as to those claims. As
to Count 7, summary judgment will be GRANTED with respect to Sheriff Jones and DENIED
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with respect to Corporal Brockman and Deputy Hatfield. Finally, summary judgment for
Defendants will be GRANTED as to Count 8 and conceded Counts 2, 3, 4, and 5.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
judgment is appropriate if “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
showing that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663
F.3d 806, 811 (6th Cir. 2011). The evidence, together with all inferences that can permissibly be
drawn therefrom, must be read in the light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 585–87; Provenzano, 663 F.3d at 811.
The movant may support a motion for summary judgment with affidavits or other proof
or by exposing the lack of evidence on an issue for which the nonmoving party will bear the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986). In responding to
a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go
beyond the pleadings and “present affirmative evidence in order to defeat a properly supported
motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The Court’s task is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. A genuine issue for trial exists
when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id.
at 252. “The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
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III. ANALYSIS
A. Fourth Amendment Claims
Gray asserts a claim of unlawful seizure, arrest, and detention in violation of 42 U.S.C. §
1983 against Deputy Hatfield. He claims that both the initial stop of his car and subsequent
arrest violate his right to be free from unreasonable searches and seizures. Section 1983 creates
a cause of action to remedy constitutional violations as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States . . . 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. To prevail on a claim under 42 U.S.C. § 1983, Plaintiff must prove that “(1) a
person, (2) acting under color of state law, (3) deprived the plaintiff of a federal right.” Berger v.
City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001).
Deputy Hatfield raises the defense of qualified immunity, which “shields government
officials from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harmon v. Hamilton Cty., 675 F. App’x 532, 536-37 (6th Cir. 2017) (internal quotations and
citations removed). “The plaintiff carries the burden of proof to show that the defendant is not
entitled to qualified immunity.” Id. at 537. “In determining whether a law enforcement officer
is shielded from civil liability due to qualified immunity, this court typically employs a two-step
analysis: ‘(1) whether, considering the allegations in a light most favorable to the party injured, a
constitutional right has been violated, and (2) whether that right was clearly established.’” Id.
(quoting Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006).) “These questions may be answered
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in either order.” Id. If the answer to either one is “[no] then qualified immunity protects the
officer from civil damages.” Id.
1. Traffic Stop
The Court will first consider whether Deputy Hatfield is protected by qualified immunity
for the initial traffic stop. “A person who has been the victim of an unlawful arrest or wrongful
seizure under the color of law has a claim based on the Fourth Amendment guarantee that
government officials may not subject citizens to searches or seizures without proper
authorization.” Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009) (citing U.S. Const. amend.
IV). The Fourth Amendment requires that a traffic stop “not be ‘unreasonable’ under the
circumstances.” Whren v. U.S., 517 U.S. 806, 810 (1996). However, the constitutional
reasonableness of a traffic stop under the Fourth Amendment does not depend upon the “actual
motivations of the individual officers involved.” Id. at 813. A police officer may stop a car with
probable cause to believe a civil traffic infraction has occurred or with reasonable suspicion of
ongoing criminal activity. U.S. v. Blair, 524 F.3d 740, 748, 750 (6th Cir. 2008).
Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may stop a vehicle based on
reasonable suspicion of an ongoing crime. A Terry stop “must be supported by specific and
articulable facts that would ‘warrant a man of reasonable caution in the belief that the action
taken was appropriate.’” Blair, 524 F.3d at 750 (citing Terry, 392 U.S. at 21–22).) In other
words, “[t]he officer must be able to articulate more than an ‘inchoate and unparticularized
suspicion or hunch’ of criminal activity.” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 124
(2000).) “Additionally, the stop must be justified at its inception, and it must be reasonably
related in scope to the circumstances which justified the interference in the first place.” Id. The
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Court must consider the totality of the circumstances to determine the validity of a Terry stop.
Id.
Deputy Hatfield argues that the undisputed facts demonstrate that he had reasonable
suspicion that Gray was driving while intoxicated, justifying the stop. In support of his position,
he cites the following: it was 2:50 a.m., Gray was driving within close proximity to a bar, he
witnessed Gray make a “wide” turn, fail to maintain his lane of travel, and weave from lane mark
to lane mark. Although acknowledging that weaving alone would not support reasonable
suspicion, he claims that all of these factors together give rise to reasonable suspicion of an
intoxicated driver under Ohio law. See Green v. Thockmorton, 681 F.3d 853, 864 (6th Cir. 2012)
(question of fact as to whether officer had reasonable suspicion driver was driving under the
influence prior to administering field sobriety tests and finding that traffic violations alone are
relevant to the totality-of-the-circumstances inquiry but not dispositive of driver impairment).
In response, Plaintiff raises both disputes of fact and issues of credibility. He disputes
that he failed to maintain his lane of travel or weaved from lane mark to lane mark. He contends
that if he were weaving, the exterior of his tires would be damaged from the places in the road in
which there was a median. He also calls into question the credibility of Deputy Hatfield, citing
discrepancies in his Narrative Report of the incident. The Narrative Report leaves out any
indication that he was weaving or having trouble maintaining his lane. Rather, it states that
Deputy Hatfield observed Plaintiff make “an improper U-turn in the roadway in front of me” and
that he had to “apply my brakes to keep from hitting the vehicle and once behind the vehicle I
activated my overhead lights in the area of the Columbia Bridge.” (Doc. 1-1 at PageID 20.)
Deputy Hatfield was trained to prepare a Narrative Report with all relevant facts, yet seemingly
16
omitted important details about what he observed the early morning of December 12, 2014.3
(See Doc. 33-2 at PageID 660 (Hatfield testimony).)
Based upon these factual discrepancies and credibility issues, the Court cannot determine
whether Plaintiff was weaving or committing lane violations during the time shortly before he
was pulled over. If Plaintiff’s version of events were believed, a reasonable jury could determine
that Deputy Hatfield lacked reasonable suspicion that Gray was driving under the influence of
alcohol. As such, the Court cannot conclude that Deputy Hatfield is entitled to qualified
immunity at this time.
2. Arrest
Next, the Court will consider whether Deputy Hatfield had probable cause to arrest the
Plaintiff for driving under the influence of alcohol.4 However, as resolution of this question
turns on disputed testimony, the question is properly determined by a jury. “[P]robable cause for
an arrest . . . depends on whether, at the moment the arrest was made, . . . the facts and
circumstances within [the officers’] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the [defendant] had
committed or was committing an offense.” Kinlin v. Kline, 749 F.3d 573, 577 (6th Cir. 2014)
(citing U.S. v. Harness, 453 F.3d 752, 754 (6th Cir. 2006)) (internal quotations removed).
Whether probable cause exists is a difficult, fact-specific determination:
3
The Court limited its discussion of its concerns about Deputy Hatfield’s credibility to only facts regarding
reasonable suspicion but notes that there are other credibility issues which will be addressed infra.
4
Deputy Hatfield alternatively argues in a one-sentence footnote that he had probable cause to arrest Plaintiff for
improper handling of a firearm in violation of Ohio Rev. Code § 2923.16(D)(1), which prohibits knowingly
transporting or having a loaded handgun in a motor vehicle, if at the time of that transportation or possession, that
person is under the influence of alcohol, a drug of abuse, or a combination of them. Deputy Hatfield stated in his
Narrative Report that a .40 caliber Glock handgun was found with one bullet in the chamber in the rear of the
vehicle where the driver was reaching and a full magazine in the floorboard. (Doc. 1-1 at PageID 20.) Because
there is a question of fact as to whether Plaintiff was under the influence of alcohol that evening, the Court cannot
determine whether Deputy Hatfield had probable cause to arrest Plaintiff for violation of possessing a firearm while
under the influence of drugs or alcohol in violation of Ohio Rev. Code § 2923.16(D)(1). That is a question for the
jury.
17
The probable-cause standard is incapable of precise definition or quantification

into percentages because it deals with probabilities and depends on the totality of
the circumstances. See [Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76
L.Ed.2d 527 (1983) ]; Brinegar [v. United States, 338 U.S. 160, 175, 69 S. Ct.
1302, 93 L. Ed. 1879 (1949) ]. We have stated, however, that “[t]he substance of
all the definitions of probable cause is a reasonable ground for belief of guilt,”
ibid. (internal quotation marks and citations omitted), and that the belief of guilt
must be particularized with respect to the person to be searched or seized, Ybarra
v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L.Ed.2d 238 (1979). Maryland v.
Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L.Ed.2d 769 (2003). “In general,
the existence of probable cause in a § 1983 action presents a jury question, unless
there is only one reasonable determination possible.” Pyles v. Raisor, 60 F.3d
1211, 1215 (6th Cir. 1995).
Kinlin, 749 F.3d at 577–78. An officer may have probable cause to arrest when, under the totality
of the circumstances, the undisputed facts show the driver made an unsafe lane change, smelled
of alcohol, admitted to consuming alcohol, and thrice refused a field sobriety test. Id. at 579-80.5
The testimony in this case is contradictory. To highlight a few of those discrepancies,
Plaintiff testified that he had three bourbon drinks at a work function the early evening prior to
December 12, but nothing to drink thereafter or in the morning of December 12. He claims he
interacted with Deputy Hatfield only briefly, did not slur his speech, and never was asked for his
identification. In contrast, Deputy Hatfield testified he smelled alcohol and observed Gray’s
glassy, bloodshot eyes, and mumbled speech upon initially speaking with Gray. After restraining
Ebbing, Deputy Hatfield had a conversation with Gray while he was detained in the back of
Corporal Brockman’s cruiser. He claims Gray smelled of alcohol, slurred his speech, had glassy,
bloodshot eyes, and admitted to consuming “five or six drinks.” This, he claims, gave him ample
probable cause to arrest Gray for driving under the influence of alcohol in violation of Ohio law.6
5
The exclusionary rule does not apply to civil § 1983 cases; thus, even if the Court determines the initial traffic stop
was unconstitutional, there is no basis upon which to exclude the evidence of what occurred after in considering
whether there was probable cause to arrest Gray. Turk v. Comerford, 488 Fed. App’x 933, 944 (6th Cir. 2012).
6
In his Motion for Summary Judgment, Deputy Hatfield argues that Plaintiff’s refusal of a breathalyzer should be
considered in the Court’s probable cause analysis. See Bailey v. City of Howell, 643 Fed. App’x 589, 595–96 (6th
Cir. 2016) (officer had probable cause to arrest for drunk driving where undisputed facts established officer
observed the driver leave a club at two o’clock in the morning, observed careless driving, watery, blood-shot eyes,
18
The Court finds it concerning that the alleged conversation between Deputy Hatfield and
Gray in the back of Corporal Brockman’s cruiser may or may not have occurred, depending upon
which witness one believes. Such a conversation may have been recorded by Corporal
Brockman’s police cruiser camera – that footage, however, is strangely absent from the cruiser
cam (and the subject of the spoliation charge) and lacks full audio. Plaintiff also argues that the
sequence of events as described by Deputy Hatfield cannot be plausible within the corresponding
timeframe, an argument he supports with expert testimony by Jack Holland.7 The Court does not
need to refer to an expert opinion testimony, however, as the sequence of events plainly conflict
with the sequence of events as Plaintiff testified.
There are also significant issues with Deputy Hatfield’s credibility. Deputy Hatfield’s
Narrative Report describes a different version of events than what both he and other witnesses
testify; for example, he claims he observed Gray make an illegal U-turn, smelled a “very strong
odor of alcohol and marijuana emitting from the vehicle,” and observed “furtive movements” by
the passenger and driver prior to pulling them over. (Doc. 1-1 at PageID 20) (emphasis added).
Deputy Hatfield did not include the odor of marijuana in his subsequent descriptions of what he
observed. (See Doc. 33-2.) In his Narrative Report, Deputy Hatfield claimed that Gray admitted
to drinking “six or seven beers” prior to being stopped. (Id. at PageID 21.) However, the alleged
admission has varied; for example, at the criminal trial, Deputy Hatfield testified that Gray
admitted to having “five or six drinks.” (Doc. 33-2 at PageID 650 (Hatfield testimony).) In
and heard the driver say he had recently consumed alcohol, refused a breath test, and smelled of intoxicants.) In
Bailey, the driver was offered a breath test prior to being arrested. Id. at 592. In this case, Deputy Hatfield did not
give Gray the opportunity to take a breath test, or any other field sobriety test, prior to being arrested. Thus, this
argument is not dispositive.
7
Plaintiff relies upon Mr. Holland’s expert report and testimony but has neglected to provide the C.V. of Mr.
Holland to the Court such that the Court can assess Mr. Holland’s experience and credentials in assessing whether
he is qualified to testify as an opinion witness. The Court, therefore, does not rely upon this report in making its
determination.
19
addition, Deputy Hatfield describes the gun that was retrieved from Gray’s vehicle as being
loaded; however, Deputy Brown, who recovered the weapon, refutes this fact. (Id. at PageID
694, 696 (Brown testimony).)
Significant factual questions and credibility issues abound which preclude a holding that
Deputy Hatfield is entitled to qualified immunity on the unlawful arrest claim. If believed,
Plaintiff’s testimony would establish that Deputy Hatfield lacked probable cause to arrest him for
driving under the influence of alcohol. As such, the Court will deny summary judgment to
Deputy Hatfield.
B. Ratification
Gray alleges that Sheriff Jones ratified Deputy Hatfield’s actions by allowing his criminal
case to go forward in state court despite being on notice of concerns regarding Deputy Hatfield’s
conduct from Prosecutor Gmoser. A municipality is not liable for the conduct of its non-policy
making employees who act contrary to the policies of the municipality. Turner v. City of Taylor,
412 F.3d 629, 639 (6th Cir. 2005). A municipality may be liable for the unconstitutional
decision of its policymaking employees, however, if it ratifies those decisions. City of St. Louis v.
Prapotnik, 485 U.S. 112, 127 (1988). Ratification can occur when a policymaker fails
meaningfully to investigate the acts of the officer.8 Williamson v. Scioto Twp. Trustees, No.
2:13-CV-683, 2014 WL 4388266, at *13 (S.D. Ohio Sept. 5, 2014). Failing meaningfully to
investigate may include the lack of any investigation or an investigation that is not designed to
uncover what actually happened. Id.
8
Ratification also occurs when an individual with policymaking authority issues a final decision affirming a
subordinate’s decision on the merits and adopts it as municipal policy. Id. However, there has been no evidence or
argument under this theory of ratification in this case.
20
Plaintiff argues that Sheriff Jones was on notice of issues with Deputy Hatfield
overcharging individuals as of the date of Prosecutor Gmoser’s July 2015 letter. Plaintiff argues
that investigation was not designed to obtain meaningful results, as the investigation reviewed
arrests beginning the day after his arrest and included no statistical analysis or comparison of
Deputy Hatfield’s charging habits. During the course of the investigation, Sheriff Jones’s
officers noted a widely-held belief that Deputy Hatfield overcharges suspects. At the conclusion
of the investigation, supervisors were instructed to supervise and monitor Deputy Hatfield;
however, no meaningful supervision has actually been performed by any supervisors, including
Corporal Brockman, Chief Dwyer, and Sheriff Jones.
Defendant responds that Prosecutor Gmoser’s letter did not involve the arrest of Gray on
December 12, 2014, nor did it involve Gray’s subsequent criminal prosecution. In any event, the
Sheriff’s Office investigated the allegations of overcharging and those claims were
unsubstantiated. Chief Dwyer met with Deputy Hatfield to discuss charging concerns in a
specific case and counseled him regarding the matter.
The Court finds that whether the Sheriff’s office conducted a “meaningful investigation”
into Deputy Hatfield’s conduct is a question for the jury. Although the letter that put the Sheriff
on notice did not specifically mention Gray, the subject matter of the concerns—overcharging
suspects to obtain overtime—is certainly applicable here, where Plaintiff asserts he was
improperly charged. Plaintiff has offered evidence that the timing and method of the
investigation may not have been designed to produce meaningful results. If the jury were to
conclude that no meaningful investigation was conducted, it could also conclude that had one
been conducted, the state court prosecution of Gray may not have gone forward. The jury, not
the Court, must make this determination. Summary judgment on this claim, therefore, is denied.
21
C. Intentional Infliction of Emotional Distress
Defendants argue they are entitled to summary judgment on Plaintiff’s intentional
infliction of emotional distress claim because there is no evidence of extreme and outrageous
conduct or that Plaintiff suffered from severe mental anguish. Under Ohio law, a claim of
intentional infliction of emotional distress requires a plaintiff to prove:
(1) that the actor intended to cause emotional distress or knew or should have
known that his actions would result in serious emotional distress to the plaintiff;
(2) that the conduct complained of has been so outrageous in character and
extreme in degree as to go beyond all bounds of decency; (3) that the conduct
proximately caused the plaintiff’s injury; and (4) that the mental anguish suffered
by the plaintiff is serious and of a nature that no reasonable person could be
expected to endure it.
Day v. Nat’l Elec. Contractors Ass’n, 82 F. Supp. 3d 704, 709 (S.D. Ohio 2014) (citing Ashcroft
v. Mt. Sinai Medical Ctr., 68 Ohio App.3d 359, 588 N.E.2d 280, 284 (1990).)
Plaintiff argues in conclusory fashion that the alleged violation of his constitutional rights
exceeds the bounds of decency and is utterly intolerable. He broadly cites two pages of his
Answers to Interrogatories, in which he states that he has suffered from anxiety, depression,
isolation, stress, a loss of sleep, loss of self-confidence, lack of focus, anger, and emotional
distress, resulting in his demotion at work, and that he has not seen a physician to address these
issues. (Doc. 33-1 at PageID 612, 614.) Plaintiff’s conclusory allegations are insufficient
evidence to support his claim.
“While Ohio does not require expert medical testimony to support an intentional
infliction of emotional distress claim, a plaintiff must at least provide some evidence beyond his
or her own testimony.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1111 (6th
Cir. 2008) (citing Buckman-Peirson v. Brannon, 159 Ohio App.3d 12, 822 N.E.2d 830, 841
(2004).) See also Daniels v. City of Wyoming, No. 1:15-CV-507, 2016 WL 524356, at *7 (S.D.
22
Ohio Feb. 10, 2016) (bare allegations that plaintiff suffered from mental anguish are not
sufficient to support that alleged emotional anguish was severe and debilitating). As in Talley,
Plaintiff’s own assertions do not provide evidence of serious emotional distress.9 The claim is
appropriately dismissed.
D. Spoliation
Plaintiff claims that Defendants altered cruiser camera footage from Corporal
Brockman’s vehicle, which amounts to spoliation.10 The video could have included potentially
exculpatory evidence, or at the very least, evidence that proves or disproves whether Deputy
Hatfield had a conversation with Plaintiff while Plaintiff was held in the back of Corporal
Brockman’s cruiser. There are several issues with the video: the video includes a gray screen in
the middle that seems to be missing approximately six minutes, the audio is turned down, and
Plaintiff argues that the video currently in evidence may be different than the one presented in
the state court trial.
A claim for spoliation under Ohio law, an intentional tort, requires proof of five elements:
(1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the
defendant that the litigation exists or is probable; (3) willful destruction of the evidence by the
defendant designed to disrupt the plaintiff's case; (4) disruption of the plaintiff's case; and (5)
damages proximately caused by the defendant's actions. Gliatta v. Tectum, Inc., 211 F. Supp. 2d
992, 1011 (S.D. Ohio 2002). There is no dispute that Deputy Hatfield and Corporal Brockman,
who participated in the arrest of Plaintiff and responded to the scene, were aware of criminal
9
Because this is dispositive, the Court will not address the Defendants’ argument that the alleged conduct does not
arise to “extreme and outrageous” conduct under the law.
10
Although the Court will find that the spoliation charge against Deputy Hatfield and Corporal Brockman may
proceed, the record lacks evidence of Sheriff Jones intentionally destroying evidence in this case. Summary
judgment for him on this record is therefore appropriate.
23
charges against the Plaintiff and had knowledge that those charges would involve litigation. The
issue is whether there was willful destruction of evidence.
The Court is troubled by the record in this case concerning Corporal Brockman’s dash
camera video. The Court has observed that there is a seeming lapse in time in the middle of the
video from 3:00:05, when the feed cuts to a gray fuzzy screen, then a plain gray screen for a
couple of seconds, then resumes at 3:06:17 on the scene. There seems to be no explanation for
this. In addition, despite Corporal Brockman testifying that he forgot to turn on audio the day of
the incident, the Court has observed audio in the background of the video, most notably at
2:56:04 and 2:56:26 a.m.
Plaintiff also argues that at trial, the blank, blue screen in the video dash camera feed
appeared for over six minutes and then cuts to Corporal Brockman’s cruiser driving away at 3:06
a.m. Plaintiff contends that the video now in evidence with this Court is different than the video
presented at trial. Based on a comparison of the trial transcript to the Court’s own observations,
the Court agrees there are seeming differences, enough so that a question of fact exists. At trial,
Corporal Brockman testified that at 03:00, about six seconds after 3 a.m., he saw a “blue screen.”
(Doc. 33-3 at PageID 726.) There is no blue screen in the video now in evidence at 03:00:06.
The video in evidence shows approximately twenty minutes of footage from that morning, and at
3:00:05 on the video clock, the feed cuts to a fuzzy gray screen followed by a plain gray screen,
then the feed returns at 3:06:17 on the video clock.
The content of the video and late disclosure of the video raise issues of willfulness. The
video’s existence was revealed at the criminal trial on this matter by Deputy Hatfield in direct
contradiction to prior testimony by Deputy Hatfield. Further, Corporal Brockman testified that
he forgot to record sound, but the Court could observe some sound on the video feed.
24
In moving for summary judgment, Defendants argue that Corporal Brockman’s cruiser
video was not altered in any way.11 As has been noted, there is evidence to the contrary which
precludes summary judgment. However, the Court will briefly address the evidence brought
forward by Defendants. Defendants broadly cite to a letter from Prosecutor Gmoser with various
attachments, a lengthy investigation file from the Butler County Sheriff’s Office regarding the
video, and the video itself. (See Doc. 36 at PageID 919.) In moving for summary judgment, the
Defendant must identify specific evidence to support its position that there is no dispute of
material fact. The Court has no obligation to sift through nearly one-hundred pages to find
Defendants’ supporting evidence. See Emerson v. Novartis Pharms. Corp., 446 F. App’x 733,
735–36 (colorfully recognizing that district judges are not required to track down facts and
arguments not presented by the parties because judges are not “like pigs, hunting for truffles”).
Regardless, the documents cited by Defendants lead to more questions than answers.
Defendants rely upon an in-house assessment by Prosecutor Gmoser and the Systems
Administrator and Technical Advisor for the Butler County Prosecutor’s Office, Brad Schafer,
for the conclusion that the video was not altered. Prosecutor Gmoser states that he reviewed the
tape from start to finish and listened to the audio. He notes that the VHS tape is old technology
and that his “technician tells me that VHS is nearly impossible to corrupt without leaving a trace
unless extreme measures are taken to cut and splice the tape for which there is no evidence.”
(Doc. 35-2 at PageID 804.) He explains that the recording device has three measurements on the
tape that cannot be altered and that the six minutes did not result from that period of time being
erased. (Id.) Although it did not take a “rocket scientist” to determine the tape was not
11
Defendants also argue Plaintiff admits Corporal Brockman did not record evidence of Plaintiff’s arrest in response
to his Proposed Undisputed Facts. In viewing the video, the Court interprets this to mean the video did not record
the actual incident of the arrest, because the camera is facing away from the scene. The video speaks for itself.
25
adulterated, Prosecutor Gmoser asked his technician to review whether the absence of audio
could be accounted for by adulteration and “his expert opinion is that no audio alteration or
adulteration took place concerning the tape.” (Id. at 805.) He understands that “Brockman was
under the mistaken belief that audio would be recorded when he activated his overhead lights
which actually required another switch to activate…” (Id.) He attaches a summary of Mr.
Schafer’s conclusions. (Id. at 806–07.)
The Court is without sufficient information to evaluate Prosecutor Gmoser’s and Mr.
Schafer’s conclusions that the dash camera video was not altered. They are seemingly offered
as expert testimony, but the Court has not been provided with Curricula Vitae of either nor have
Defendants moved to qualify an opinion witness. In addition, both Prosecutor Gmoser and Mr.
Schafer make credibility assessments of the Corporal, but those credibility issues are
appropriately resolved by a jury. Thus, the Court will not treat these individuals as opinion
witnesses and does not afford their conclusions much weight.
In its own review of the video and trial transcript, the Court is left with serious questions
about the facts underpinning Corporal Brockman’s dash camera video. The Court finds there is
evidence, that if believed by a jury, could support evidence of spoliation. These factual matters
must be resolved by a jury.
E. State Law Immunity
Defendants raise the defense of state law immunity under Ohio Rev. Code §
2744.03(A)(6), which states that political subdivision employees are entitled to immunity when
their activities concern governmental or proprietary functions, except where they act with a
“malicious purpose, in bad faith, or in a wanton or reckless manner.” Id. § 2744.03(A)(6)(b). As
set forth in Gill v. Kovach, 729 F. Supp. 2d 925, 943–44 (N.D. Ohio 2010):
26
Malice is “that state of mind under which a person’s conduct is characterized by

hatred, ill will or spirit of revenge” or “a conscious disregard for the rights and
safety of other persons that has a great probability of causing substantial harm.”
Preston v. Murty, 32 Ohio St.3d 334, 336, 512 N.E.2d 1174 (1987). Bad faith is
“a dishonest purpose, conscious wrongdoing or breach of a known duty by some
ulterior motive or ill will characterized by fraud.” Kalain v. Smith, 25 Ohio St.3d
157, 159 n. 1, 495 N.E.2d 572 (1986). Wanton conduct is the failure to exercise
any care whatsoever toward one to whom a duty of care is owed under the
circumstances in which there is a great probability of resulting harm. Hawkins v.
Ivy, 50 Ohio St.2d 114, 117–18, 363 N.E.2d 367 (1977). An act is committed
recklessly if it is done “with knowledge or reason to know of facts that would lead
a reasonable person to believe that the conduct creates an unnecessary risk of
physical harm and that such risk is greater than necessary to make the conduct
negligent.” Caruso v. State, 136 Ohio App.3d 616, 621, 737 N.E.2d 563 (Ohio
App. Ct. 2000).
There exists a presumption of immunity for officers engaging in official duties.

Knox v. Hetrick, No. 91102, 2009 WL 792357, *3 (Ohio App. Ct. Mar. 26, 2009).
A plaintiff must produce sufficient evidence to rebut the presumption of
immunity. Cook v. City of Cincinnati, 103 Ohio App.3d 80, 91, 658 N.E.2d 814
(1995).
The only potential remaining claim for state law immunity is the spoliation claim. The
Court finds that there are material issues of fact surrounding the video itself that preclude a
finding of statutory immunity under Ohio law. If Plaintiff’s version of events is believed, there
is evidence that Deputy Hatfield and Corporal Brockman acted with wanton or reckless behavior,
as evidenced by Deputy Hatfield’s testimony refuting the existence of a dash camera video prior
to the criminal trial in this case. There is evidence of Corporal Brockman’s wanton behavior in
failing to disclose the dash camera video and storing it in his basement, and subsequently
revealing the existence to Deputy Hatfield prior to alerting the Court. There is also testimony
about the dash camera video lacking audio, when the Court can hear audio in the background.
However, the factual underpinnings of whether the video footage was altered must be presented
to, and decided by, a jury. See Family Service Ass. of Steubenville v. Wells Township, No. 2:12-
cv-135, 2014 WL 11516089, at *10 (S.D. Ohio 2014) (granting summary judgment on spoliation
claim for city and chief but denying immunity on spoliation claim for police officer where there
27
was evidence from which a jury could infer that the officer’s conduct in destroying notes was
wanton and reckless). Thus, the Court cannot conclude that either Deputy Hatfield or Corporal
Brockman is entitled to statutory immunity at this time. That question is for the jury.
IV. CONCLUSION
The Court, having reviewed the parties’ pleadings and in accordance with the reasons
stated herein, DENIES Defendants’ Motion for Summary Judgment as to the Fourth
Amendment and ratification claim, and GRANTS the motion as to the supervisory liability,
failure to train, inadequate supervision, false arrest, and intentional infliction of emotional
distress claims. The Court GRANTS summary judgment to Sheriff Jones on the spoliation
claim, but DENIES summary judgment to Deputy Hatfield and Corporal Brockman on the
spoliation claim.
IT IS SO ORDERED.
S/Susan J. Dlott____________
Judge Susan J. Dlott
United States District Court
28

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Case: 1:16-cv-00999-SJD Doc #: 42 Filed: 08/10/18 Page: 1 of 28 PAGEID #: 1433

IN THE UNITED STATES DISTRICT COURT

1. Events of December 12, 2014

a. Account of Deputy Hatfield, Corporal Brockman, and Deputy Brown

Auto Body. (Id. at 637–38.)

Gray fumbled through his wallet to locate it. (Id.)

fighting me.” (Id. at 647–48.)

the gun under the driver’s seat. (Id. at 691.)

intoxicated.” (Id. at 650–51.)

Corporal Brockman transported Gray to the Sheriff’s headquarters. (Id. at 704–05

refused the test.

Deputy Hatfield. (Id. at 182.)

car in sight.” (Gray Dep., Doc. 32-1 at PageID 154.)

and refused a breathalyzer test.

2. Gray’s Criminal Trial and Corporal Brockman’s Dash Camera Footage

misdemeanor, in violation of Ohio Rev. Code § 4511.19(A)(1)(a); improper handling of firearms

improper handling of firearms in a motor vehicle, a first degree misdemeanor, in violation of

4511.36. (Case No. CR2015-01-0041 Butler County Common Pleas Court).

Transcript, Doc. 33-3 at PageID 727.)

videos in his home. (Id.)

3. Investigation Regarding Deputy Hatfield

Dep., Doc. 32-8 at PageID 543.)

asserts the following causes of action:

Count 1: Unlawful seizure, arrest, and detention by Deputy Hatfield in violation of 42

claims. Plaintiff responded in opposition, but conceded summary judgment on Counts 2, 3, 4,

Defendants will be GRANTED as to Count 8 and conceded Counts 2, 3, 4, and 5.

II. SUMMARY JUDGMENT STANDARD

the record.” Fed. R. Civ. P. 56(c)(3).

A. Fourth Amendment Claims

a cause of action to remedy constitutional violations as follows:

officer from civil damages.” Id.

relevant to the totality-of-the-circumstances inquiry but not dispositive of driver impairment).

(See Doc. 33-2 at PageID 660 (Hatfield testimony).)

immunity at this time.

Whether probable cause exists is a difficult, fact-specific determination:

The probable-cause standard is incapable of precise definition or quantification

The testimony in this case is contradictory. To highlight a few of those discrepancies,

with the sequence of events as Plaintiff testified.

694, 696 (Brown testimony).)

uncover what actually happened. Id.

Corporal Brockman, Chief Dwyer, and Sheriff Jones.

specific case and counseled him regarding the matter.

C. Intentional Infliction of Emotional Distress

Defendants argue they are entitled to summary judgment on Plaintiff’s intentional

intentional infliction of emotional distress requires a plaintiff to prove:

evidence to support his claim.

the state court trial.

issue is whether there was willful destruction of evidence.

2:56:04 and 2:56:26 a.m.

then the feed returns at 3:06:17 on the video clock.

Schafer’s conclusions. (Id. at 806–07.)

witnesses and does not afford their conclusions much weight.

must be resolved by a jury.

E. State Law Immunity

“malicious purpose, in bad faith, or in a wanton or reckless manner.” Id. § 2744.03(A)(6)(b). As

Malice is “that state of mind under which a person’s conduct is characterized by

There exists a presumption of immunity for officers engaging in official duties.

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