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U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:20-cv-03431-ALM-KAJ

Alsaada et al v. City of Columbus et al Assigned to: Chief Judge Algenon L. Marbley Referred to: Magistrate Judge Kimberly A. Jolson Cause: 42:1983 Civil Rights Act

Date Filed: 07/08/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Tamara Alsaada

represented by Edward Reilley Forman Marshall and Forman LLC 250 Civic Center Drive Suite 480 Columbus, OH 43215 614-463-9790 Fax: 614-463-9780 Email: eforman@marshallforman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chanda L. Brown WALTON + BROWN, LLP 395 E. Broad Street Suite 200 Columbus, OH 43215-3844 614-636-3476 Fax: 614-636-3453 Email: cbrown@waltonbrownlaw.com ATTORNEY TO BE NOTICED

Frederick Martin Gittes The Gittes Law Group 723 Oak Street Columbus, OH 43205 614-222-4735 Email: fgittes@gitteslaw.com ATTORNEY TO BE NOTICED

Helen M. Robinson Marshall and Forman 250 Civic Center Drive Suite 480 Columbus, OH 43215 614-463-9790 Fax: 614-463-9780 Email: hrobinson@marshallforman.com ATTORNEY TO BE NOTICED
James Donald McNamara 88 East Broad Street Suite 1350 Columbus, OH 43215-4525 614-464-2770 Fax: 614-464-0043 Email: psilbach@yahoo.com ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro The Gittes Law Group 723 Oak Street Columbus, OH 43205 614-222-4735 Fax: 614-221-9655 Email: jvardaro@gitteslaw.com ATTORNEY TO BE NOTICED
John Spenceley Marshall Marshall and Forman, LLC 250 Civic Center Drive Suite 480 Columbus, OH 43215-5296 614-463-9790 Fax: 614-463-9780 Email: jmarshall@marshallforman.com ATTORNEY TO BE NOTICED
Louis Abraham Jacobs Marshall and Morrow LLC 177 19th Street, Apt. 9C Oakland, CA 94612-4642 614-203-1255

Plaintiff Demetrius Burke

Fax: 510-250-9007 Email: LAJOhio@aol.com ATTORNEY TO BE NOTICED
Madeline Jean Rettig Marshall & Forman LLC 250 Civic Center Dr. Columbus, OH 43215 (614) 463-9790 Fax: (614) 463-9780 Email: mrettig@marshallforman.com ATTORNEY TO BE NOTICED
Samuel Micah Schlein Marshall and Forman LLC 250 Civic Center Drive Suite 480 Columbus, Oh 43215 614-463-9790 Fax: 614-463-9780 Email: sschlein@marshallforman.com ATTORNEY TO BE NOTICED
Sean L Walton , Jr. Walton + Brown, LLP. 395 E. Broad St. Suite 210 Columbus, OH 43215 614-636-3476 Fax: 614-636-3453 Email: swalton@waltonbrownlaw.com ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff Bernadette Calvey

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff Stephanie Garlock

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff Andrew Fahmy

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff Talon Garth

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff
Eva Heyer TERMINATED: 09/28/2020

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address)

Plaintiff Randy Kaigler

ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Rebecca Lamey

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Nadia Lynch

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Aleta Mixon

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Darrell Mullen

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Heather Wise

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address)

Plaintiff Mahir Ali

ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson

Plaintiff S.L.C., a minor

(See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jennifer Eidemiller

Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Holly Hahn

Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address)

Plaintiff Bryan Hazlett

ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes

Plaintiff Justin Horne

(See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kurghan Horn

Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Terry D. Hubby, Jr.

Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address)

Plaintiff Elizabeth Koehler

ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown

Plaintiff Mia Mogavero

(See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Leeanne Pagliaro

Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Torrie Ruffin

Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address) LEAD ATTORNEY

Plaintiff Amanda Weldon

ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall (See above for address)

Plaintiff Summer Schultz

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Reilley Forman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Spenceley Marshall

V. Defendant City of Columbus

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chanda L. Brown (See above for address) ATTORNEY TO BE NOTICED
Frederick Martin Gittes (See above for address) ATTORNEY TO BE NOTICED
Helen M. Robinson (See above for address) ATTORNEY TO BE NOTICED
James Donald McNamara (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Paul Vardaro (See above for address) ATTORNEY TO BE NOTICED
Louis Abraham Jacobs (See above for address) ATTORNEY TO BE NOTICED
Madeline Jean Rettig (See above for address) ATTORNEY TO BE NOTICED
Samuel Micah Schlein (See above for address) ATTORNEY TO BE NOTICED
Sean L Walton , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips Columbus City Attorney's Office 77 North Front Street, 4th Fl.

Columbus, OH 43215 614-645-6959 Fax: 614-645-6949 Email: wmphillips@columbus.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury Columbus City Attorney's Office 77 North Front Street Columbus, OH 43215 614-645-6945 Fax: 614-645-6949 Email: avtanoury@columbus.gov ATTORNEY TO BE NOTICED
Andria C. Noble Columbus City Attorney's Office 77 N. Front Street Columbus, OH 43215 614-645-7385 Fax: 614-724-2650 Email: acnoble@columbus.gov ATTORNEY TO BE NOTICED
Janet R Hill Arbogast Columbus City Attorney Civil Division 90 W. Broad St. Room 200 Columbus, OH 43215 614-645-7385 Fax: 614-645-6949 Email: jrhillarbogast@columbus.gov ATTORNEY TO BE NOTICED
Michael R. Halloran Columbus City Attorney's Office 77 N. Front St. 4th Floor Columbus, OH 43215 614-645-6939 Fax: 614-645-6949 Email: mrhalloran@columbus.gov ATTORNEY TO BE NOTICED

Defendant Chief Thomas Quinlan in his individual and official capacities
Defendant Sergeant David Gitlitz in his individual and official capacities

Stephen Jeffrey Steinberg Columbus City Attorney's Office 77 N. Front Street Columbus, OH 43215 614-645-8930 Email: sjsteinberg@columbus.gov ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address)

Defendant Officer Shawn Dye in his individual and official capacities
Defendant Officer Thomas Hammel in his individual and official capacities

ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Officer Holly Kanode in his individual and official capacities
Defendant

Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED

Officer Kenneth Kirby in his individual and official capacities
Defendant John Doe in his individual and official capacities TERMINATED: 09/28/2020 Defendant Jane Doe in his individual and official capacities TERMINATED: 09/28/2020 Defendant Officer Michael Eschenburg in his individual and official capacities

represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer Franklin Lucci in his individual and official capacities TERMINATED: 03/10/2021
Defendant John and Jane Doe, #1-30 in his individual and official capacities

Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED
represented by Westley Matthew Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alana Valle Tanoury (See above for address) ATTORNEY TO BE NOTICED
Andria C. Noble (See above for address) ATTORNEY TO BE NOTICED
Janet R Hill Arbogast (See above for address) ATTORNEY TO BE NOTICED
Michael R. Halloran (See above for address) ATTORNEY TO BE NOTICED
Stephen Jeffrey Steinberg (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Defendant Fraternal Order of Police, Capital City Lodge No. 9

represented by Lathan Lipperman Hunter, Carnahan, Shoub, Byard Harshman 3360 Tremont Road Suite 230 Columbus, OH 43221 614-442-5626 Fax: 614-442-5625 Email: lipperman@hcands.com ATTORNEY TO BE NOTICED

Date Filed 07/08/2020 07/08/2020 09/16/2020 10/12/2020
10/29/2020 11/04/2020 11/05/2020
12/07/2020

# Docket Text

COMPLAINT with JURY DEMAND against All Defendants, filed

1

by Tamara Alsaada. (Attachments: # 1 Civil Cover Sheet) (Forman,

Edward) (Entered: 07/08/2020)

Filing fee for cv action: $ 400.00, receipt number 0648-7544372. (er) (Entered: 07/08/2020)

AMENDED COMPLAINT against All Defendants, filed by Tamara

2

Alsaada. (Forman, Edward) (Entered: 09/16/2020)

3 WAIVER OF SERVICE Returned Executed. Waiver sent to City of Columbus, Thomas Quinlan, David Gitlitz, Shawn Dye, Michael Eschenburg and Thomas Hammel on 9/17/2020; answer due 11/16/2020. (Marshall, John) Modified as to which defendants owe answer on 10/29/2020 (er). (Entered: 10/12/2020)

Set/Reset Deadlines: City of Columbus, Thomas Quinlan, David Gitlitz, Shawn Dye, Michael Eschenburg and Thomas Hammel answer due 11/16/2020. (er) (Entered: 10/29/2020)

4 ANSWER to 2 Amended Complaint filed by All Defendants.
(Phillips, Westley) (Entered: 11/04/2020)

5 NOTICE of Appearance by Janet R Hill Arbogast for Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan (Arbogast, Janet) (Entered: 11/05/2020)

MOTION for Preliminary Injunction by Plaintiffs Mahir Ali, Tamara

6

Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller,

Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan

Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr.,

12/08/2020 12/16/2020 01/15/2021
01/15/2021 01/21/2021
01/22/2021

Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Forman, Edward) (Entered: 12/07/2020)

NOTICE of Appearance by Andria C. Noble for Defendants City of

7

Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas

Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas

Quinlan (Noble, Andria) (Entered: 12/08/2020)

9

ORDER Setting Hearing on Motion 6 MOTION for Preliminary

Injunction : Motion Hearing set for 2/22/2021 10:00 AM in

GoToMeeting before Chief Judge Algenon L. Marbley. Signed by

Chief Judge Algenon L. Marbley on 12/16/2020. (cw) (Entered:

12/16/2020)

10 RESPONSE in Opposition re 6 MOTION for Preliminary Injunction filed by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan. (Attachments: # 1 Exhibit Ex. C, # 2 Exhibit Ex. E, # 3 Exhibit Ex. F, # 4 Exhibit Ex. H, # 5 Exhibit Ex. I, # 6 Exhibit Ex. J, # 7 Exhibit Ex. K, # 8 Exhibit Ex. L, # 9 Exhibit Ex. M, # 10 Exhibit Ex. N) (Tanoury, Alana) (Entered: 01/15/2021)

11 MOTION for Leave to File Flash Drive with Audio-Visual Exhibits by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan. (Tanoury, Alana) (Entered: 01/15/2021)

12 Unopposed MOTION for Extension of Time to File Response/Reply New date requested 2/8/2021. by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Schlein, Samuel) (Entered: 01/21/2021)

13 NOTATION ORDER granting 12 Motion for Extension of Time to

File Response/Reply re 6 MOTION for Preliminary Injunction Replies due by 2/8/2021. Signed by Magistrate Judge Kimberly A. Jolson on 1/22/21. (jr) (Entered: 01/22/2021)

01/26/2021

14 MOTION to Intervene by Intervenor Defendant Fraternal Order of Police, Capital City Lodge No. 9. (Attachments: # 1 Answer of Intervenor-Defendant FOP, # 2 Exhibit Exhibit A - FOP and City of Columbus CBA, # 3 Exhibit Exhibit B - FOP and Franklin County CBA, # 4 Exhibit Exhibit C - Division Directive 1.01, # 5

02/02/2021 02/02/2021 02/08/2021
02/15/2021
02/17/2021

Exhibit Exhibit D - U.S. v. City of Columbus, # 6 Exhibit Exhibit E - Shreve v. Franklin County) (Lipperman, Lathan) (Entered: 01/26/2021)

16 ORDER granting 11 Motion for Leave to File. Signed by Chief Judge Algenon L. Marbley on 2/2/2021. (cw) (Entered: 02/02/2021)

***Defendants' have provided the Clerk a flash drive containing exhibits in Support of their Response in Opp to Plaintiffs' 11 Motion for Preliminary Injunction. (er) (Entered: 02/02/2021)

17 REPLY to Response to Motion re 6 MOTION for Preliminary Injunction filed by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Vardaro, Jeffrey) (Entered: 02/08/2021)

RESPONSE in Opposition re 14 MOTION to Intervene filed by

18

Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette

Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock,

Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn,

Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler,

Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell

Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer

Schultz, Amanda Weldon, Heather Wise. (Marshall, John) (Entered:

02/15/2021)

19 MOTION for Leave to Manually file Exhibits by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Marshall, John) Modified text on 2/22/2021 (jlk). (Entered: 02/17/2021)

02/18/2021 02/18/2021 02/19/2021
02/19/2021
02/19/2021
02/19/2021

20 REPLY to Response to Motion re 14 MOTION to Intervene filed by Intervenor Defendant Fraternal Order of Police, Capital City Lodge No. 9. (Lipperman, Lathan) (Entered: 02/18/2021)

21 ORDER SETTING Status Conference for 2/19/2021 04:00 PM in GoToMeeting before Chief Judge Algenon L. Marbley. Signed by Chief Judge Algenon L. Marbley on 2/18/2021. (cw) (Entered: 02/18/2021)

DEPOSITION of Andrew Ginther taken on January 27, 2021 by

22

Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette

Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock,

Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin

Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler,

Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell

Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer

Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered:

02/19/2021)

23 DEPOSITION of David B. Griffith Jr. taken on January 25, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Attachments: # 1 Exhibit) (Brown, Chanda) (Entered: 02/19/2021)

24 DEPOSITION of Jennifer Knight taken on February 2, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/19/2021)

25 DEPOSITION of Mark Lang taken on January 25, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Attachments: # 1 Exhibit 5, 12, # 2 Exhibit 15, 17, 22, 24) (Brown, Chanda) (Entered: 02/19/2021)

02/19/2021 02/19/2021 02/19/2021 02/19/2021 02/19/2021

26 DEPOSITION of Duane Mabry taken on February 3, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Brown, Chanda) (Entered: 02/19/2021)
27 DEPOSITION of Paul Ohl taken on January 26, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/19/2021)
28 DEPOSITION of Thomas Quinlan taken on February 5, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 9, # 4 Exhibit 38, # 5 Exhibit 39, # 6 Exhibit Signature Letter) (Brown, Chanda) (Entered: 02/19/2021)
29 DEPOSITION of Michael Woods taken on February 4, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/19/2021)
30 NOTICE OF FILING DEPOSITION of Andrew Ginther, David Griffith, Jennifer Knight, Mark Lang, Duane Mabry, Paul Ohl, Thomas Quinlan, Michael Woods by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie

02/19/2021 02/21/2021 02/21/2021 02/21/2021 02/22/2021

Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/19/2021)
31 STIPULATION of Authenticity of Exhibits for Preliminary Injunction Hearing by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Vardaro, Jeffrey) (Entered: 02/19/2021)
32 NOTICE by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise of Filing of Attached Declaration of Alexandria Goddard (Attachments: # 1 Declaration of Alexandria Goddard) (Vardaro, Jeffrey) (Entered: 02/21/2021)
33 DEPOSITION of Kenneth Kuebler taken on January 26, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Attachments: # 1 Exhibit 17, # 2 Exhibit 19, # 3 Exhibit 20, # 4 Exhibit Signature letter) (Brown, Chanda) (Entered: 02/21/2021)
34 NOTICE OF FILING DEPOSITION of Kenneth Kuebler by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/21/2021)
35 STIPULATION of Authenticity of Defendants' Exhibits for Preliminary Injunction Hearing by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan. (Tanoury, Alana) (Entered: 02/22/2021)

02/22/2021 02/23/2021 02/23/2021 02/23/2021 02/23/2021 02/23/2021

Minute Entry for proceedings held before Chief Judge Algenon L.
Marbley: Motion Hearing held on 2/22/2021 re 6 MOTION for Preliminary Injunction; Plaintiff calls M. Walsh; M Moses; B. Calvey; T. Ruffin; Mayor Ginther; A. Cairns (Court Reporter: Shawna Evans) (bc) (Entered: 02/26/2021)
36 DEPOSITION of Paul Weiner taken on February 9, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
37 DEPOSITION of Smith Weit taken on February 16, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
38 DEPOSITION of Bela Bernhardt taken on January 25, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
39 DEPOSITION of Jennifer Edwards taken on February 9, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
40 DEPOSITION of Anthony Johnson taken on February 16, 2021 by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock,

02/23/2021 02/23/2021 02/24/2021
02/24/2021 02/25/2021

Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
41 NOTICE OF FILING DEPOSITION of Paul Weiner, Smith Weir, Bela Bernhardt, Jennifer Edwards and Anthony Johnson by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Brown, Chanda) (Entered: 02/23/2021)
Minute Entry for proceedings held before Chief Judge Algenon L.
Marbley: Motion Hearing held on 2/23/2021 re 6 MOTION for Preliminary Injunction; Plaintiff calls R. Lamey; A. Mixon; A. Fahmy; R. Wenning (Court Reporter: Shawna Evans) (bc) (Entered: 02/26/2021)
42 NOTICE by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise re 32 Notice (Other),, of Filing of Attached Corrected Declaration of Alexandria Goddard (Attachments: # 1 Corrected Declaration of Alexandria Goddard) (Vardaro, Jeffrey) (Entered: 02/24/2021)
Minute Entry for proceedings held before Chief Judge Algenon L.
Marbley: Motion Hearing held on 2/24/2021 re 6 MOTION for Preliminary Injunction; Cross of R. Winning; Plaintiff calls T. Quinlan on cross; N. Lynch; T. Hubby; (Court Reporter: Lahana DuFour a.m., Shawna Evans p.m.) (bc) (Entered: 02/26/2021)
Minute Entry for proceedings held before Chief Judge Algenon L.
Marbley: Motion Hearing held on 2/25/2021 re 6 MOTION for Preliminary Injunction; Plaintiff calls L. Pagels; B. Hazlett; M. Garrison; S. Schultz; K. Merchant; S. Carlock (Court Reporter: Lahana DuFour a.m., Shawna Evans p.m.) (bc) (Entered: 02/26/2021)

02/26/2021

Minute Entry for proceedings held before Chief Judge Algenon L.

03/01/2021 03/02/2021 03/10/2021 03/10/2021 03/10/2021
03/15/2021

Marbley: Motion Hearing held on 2/26/2021 re 6 MOTION for Preliminary Injunction; Cross of S. Carlock; Plaintiff calls D. Bardus; Defendant calls Mayor Ginther; D. Hamon; P. Ohl; Plaintiff REST (Court Reporter: Shawna Evans) (bc) (Entered: 02/26/2021)

Minute Entry for proceedings held before Chief Judge Algenon L. Marbley: Motion Hearing held on 3/1/2021; Def call B. Summerville; A. Johnson; D. Mabry (Court Reporter: Lahana DuFour) (bc) (Entered: 03/02/2021)

Minute Entry for proceedings held before Chief Judge Algenon L. Marbley: Motion Hearing held on 3/2/2021; Cross of D. Mabry; Def call S. Weir; Def REST (Court Reporter: Lahana DuFour a.m. Shawna Evans p.m.) (bc) (Entered: 03/02/2021)

STIPULATION of Dismissal by Plaintiff Tamara Alsaada. (Marshall,

43

John) (Entered: 03/10/2021)

44 NOTICE of Testimony From Defendant's City's Managing Agents and Designees under FED.R.CIV.P. 30(b)(6) by Plaintiff Tamara Alsaada (Marshall, John) Modified text on 3/24/2021 (jlk). (Entered: 03/10/2021)

45 NOTICE OF DEPOSITION TRANSCRIPT DESIGNATIONS AND IDENTIFICATION OF PREVIOUSLY FILED AFFIDAVITS AND EXHIBITS by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan (Tanoury, Alana) Modified text on 3/24/2021 (jlk). (Entered: 03/10/2021)

46 Transcript of Motion for Preliminary Injunction Proceedings VOLUME I of VII - held on February 22, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.

03/15/2021 03/15/2021

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
47 Transcript of Motion for Preliminary Injunction Proceedings VOLUME II OF VII - held on February 23, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
48 Transcript of Motion for Preliminary Injunction Proceedings VOLUME III OF VII - held on February 24, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)

03/15/2021 03/15/2021 03/15/2021

49 Transcript of Motion for Preliminary Injunction Proceedings VOLUME IV OF VII - held on February 25, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
50 Transcript of Motion for Preliminary Injunction Proceedings VOLUME V OF VII - held on February 26, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
51 Transcript of Motion for Preliminary Injunction Proceedings VOLUME VI OF VII - held on March 1, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before

03/15/2021 03/15/2021

the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
52 Transcript of Motion for Preliminary Injunction Proceedings VOLUME VII of VII - held on March 2, 2021, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614-719-3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 4/5/2021. Redacted Transcript Deadline set for 4/15/2021. Release of Transcript Restriction set for 6/14/2021. (Evans, Shawna) (Entered: 03/15/2021)
53 Unopposed MOTION for Order to Make Transcript Available and Defer Cost by Plaintiffs Mahir Ali, Tamara Alsaada, Demetrius Burke, Bernadette Calvey, Jennifer Eidemiller, Andrew Fahmy, Stephanie Garlock, Talon Garth, Holly Hahn, Bryan Hazlett, Eva Heyer, Kurghan Horn, Justin Horne, Terry D. Hubby, Jr., Randy Kaigler, Elizabeth Koehler, Rebecca Lamey, Nadia Lynch, Aleta Mixon, Mia Mogavero, Darrell Mullen, Leeanne Pagliaro, Torrie Ruffin, S.L.C., a minor, Summer Schultz, Amanda Weldon, Heather Wise. (Vardaro, Jeffrey) (Entered: 03/15/2021)

03/16/2021 03/17/2021 03/17/2021 03/19/2021 03/29/2021 03/29/2021 03/30/2021
03/30/2021 03/31/2021
04/05/2021

54 NOTICE of Hearing: Pretrial Conference set for 3/30/2021 @ 10:15 AM in Teleconference before Magistrate Judge Kimberly A. Jolson. (jr) (Entered: 03/16/2021)
55 Post Preliminary Injunction Hearing Scheduling Order. Signed by Chief Judge Algenon L. Marbley on 3/17/2021. (cw) (Entered: 03/17/2021)
56 ORDER denying 53 Motion Regarding Availability and Cost of Transcript. Signed by Chief Judge Algenon L. Marbley on 3/17/2021. (cw) (Entered: 03/17/2021)
57 RULE 26(f) REPORT by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Thomas Quinlan. (Tanoury, Alana) (Entered: 03/19/2021)
59 PLAINTIFFS' POST-HEARING ON PRELIMINARY INJUNCTION BRIEF by Tamara Alsaada. (Marshall, John) Modified text on 4/2/2021 (jlk). (Entered: 03/29/2021)
60 DEFENDANTS' POST-PRELIMINARY INJUNCTION HEARING BRIEF by City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Thomas Quinlan. (Tanoury, Alana) Modified text on 4/2/2021 (jlk). (Entered: 03/29/2021)
61 NOTICE of AMENDED 60 BRIEF by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Thomas Quinlan of Filing Corrected Post-Preliminary Injunction Hearing Brief (Attachments: # 1 DEFENDANTS CORRECTED POST-PRELIMINARY INJUNCTION HEARING BRIEF) (Tanoury, Alana) Modified text on 4/2/2021 (jlk). (Entered: 03/30/2021)
Minute Entry for proceedings held before Magistrate Judge Kimberly A. Jolson: Initial Pretrial Conference held on 3/30/2021. (jr) (Entered: 03/30/2021)
62 MEMORANDUM OF FIRST PRETRIAL CONFERENCE: Joinder of Parties due by 10/29/2021. Motions to Amend due by 10/29/2021. Discovery due by 4/1/2022. Clawback Agreement Deadline due by 7/1/2021. Dispositive motions due by 5/1/2022. Primary Expert due by 11/12/2021. Rebuttal Expert due by 2/10/2022. Settlement Demand due by 5/3/2022. Response to Settlement Demand due by 6/3/2022. Mediation Deadline: 7/2022. Signed by Magistrate Judge Kimberly A. Jolson on 3/31/2021. (daf) (Entered: 03/31/2021)
63 Reply by Plaintiff Tamara Alsaada. (Marshall, John) (Entered: 04/05/2021)

04/05/2021 04/26/2021
04/30/2021 04/30/2021 05/06/2021

64 Reply Brief by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Thomas Quinlan. (Tanoury, Alana) (Entered: 04/05/2021)

65 NOTICE by Defendants City of Columbus, Shawn Dye, Michael Eschenburg, David Gitlitz, Thomas Hammel, Holly Kanode, Kenneth Kirby, Franklin Lucci, Thomas Quinlan re 10 Response in Opposition to Motion, NOTICE OF FILING OF AFFIDAVIT OF MARK E. LANG (Attachments: # 1 Affidavit Affidavit of Mark E. Lang) (Tanoury, Alana) (Entered: 04/26/2021)

ORDER granting 6 Motion for Preliminary Injunction. Signed by

66

Chief Judge Algenon L. Marbley on 4/30/2021. (cw) (Entered:

04/30/2021)

ORDER granting 14 Motion to Intervene. Signed by Chief Judge

67

Algenon L. Marbley on 4/30/2021. (cw) (Entered: 04/30/2021)

68 ORDER denying as moot 19 Motion for Leave to File. Signed by Chief Judge Algenon L. Marbley on 5/6/2021. (cw) (Entered: 05/06/2021)

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 Case: 2:20-cv-03431-ALM-KAJ Doc #: 1 Filed: 07/08/20 Page: 1 of 81 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TAMARA K. ALSAADA; DEMETRIUS

:

BURKE; BERNADETTE CALVEY; STEPHANIE :

CARLOCK; ANDREW FAHMY; TALON

:

GARTH; EVA HEYER; RANDY KAIGLER; :

REBECCA LAMEY; NADIA LYNCH; ALETA :

MIXON; DARRELL MULLEN; and HEATHER :

WISE,

:

:

Plaintiffs,

:

:

v.

:

:

THE CITY OF COLUMBUS; CHIEF THOMAS :

QUINLAN, in his individual and official capacities; :

SERGEANT DAVID GITLITZ, in his individual :

and official capacities; OFFICER SHAWN DYE, :

in his individual and official capacities; OFFICER :

THOMAS HAMMEL, in his individual and official :

capacities; OFFICER HOLLY KANODE, in her :

individual and official capacities; OFFICER

:

KENNETH KIRBY, in his individual and official :

capacities; and JOHN and JANE DOE, Nos. 1-30, :

in their individual and official capacities,

:

:

Defendants.

:

Civil Action No.2:20cv3431 JUDGE MAGISTRATE JUDGE
JURY DEMAND ENDORSED HEREON

COMPLAINT

I. Preliminary Statement 1. On May 25, 2020, the killing of George Floyd, who was being arrested for
allegedly passing a counterfeit $20 bill to buy cigarettes, by then Minneapolis Police Department Officer Derek Chauvin was live-streamed over the Internet for eight minutes and 46 seconds and later televised around the world.

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2. Starting on May 28, 2020, in Columbus, Ohio, Plaintiffs, along with hundreds of thousands in cities, states, and countries, took to the streets to demonstrate against excessive use of force by police, saying the names of Black men and women who had recently been killed by police or vigilantes; chanting that “Black Lives Matter,” “No Justice, No Peace,” “I can’t breathe,” “Hands up, Don’t Shoot,” and “Whose Streets? Our Streets”; and expressing their outrage at the militarization of police forces, the disparate impact on minority communities of law enforcement priorities, and a pattern or practice of governments at all levels tolerating systemic racism and failing to adopt effective policies or implement adequate training, supervision, and discipline of law enforcement officers.
3. Plaintiffs and other demonstrators in Columbus comprised a multi-racial group, informally brought together by Black community leaders and activists primarily through the use of social media and dedicated to nonviolent protest, including civil disobedience of traffic, parade, and mass-gathering regulations, to generate urgent widespread public attention to the historic and continuing police violence directed overwhelmingly at communities and people of color condoned by mostly white police supervisors and administrators.
4. The goals of Plaintiffs and other demonstrators included engendering serious, effective, and immediate actions to bring a halt to the endemic racism infecting America’s law enforcement and justice systems and the general tolerance of excessive force routinely administered by police officers against arrestees, regardless of innocence or guilt, and especially against citizens who question an officer’s actions.
5. On May 28, 2020, Plaintiffs and other demonstrators in Columbus exercised their rights of assembly and expression by gathering downtown.
6. Defendants Sergeant and Officers were angered by the civil disobedience they observed, the message of the protests, and the criticisms and denunciation they heard.
2

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7. Defendants Sergeant and Officers had received minimal and ineffective training from Defendants City and Chief and were subject to vague, ineffective, and rarely enforced policies regarding the need to handle protesters without using force or using the least amount of non-lethal force necessary.
8. Defendants Sergeant and Officers instead responded to the protests with excessive use of force, including pepper spraying, tear gassing, and assaulting with physical force and rubber bullets or wooden pellets, and flash-bang grenades against nonviolent protestors who were standing in the streets, from which vehicular traffic had already been blocked and eliminated by police, or on sidewalks, chanting, and holding signs and posing no threat of violence or property destruction, and typically without giving audible warnings to their targets.
9. Defendants Sergeant and Officers either criticized, often profanely, the protestors for their chants, signs, and civil disobedience or heard, without commenting, other Officers do so while using excessive force.
10. Defendants Sergeant and Officers purposely used excessive force to punish one or more Plaintiffs and other demonstrators, to deter them from continuing to protest and others from joining a protest with which they disagreed, and to reclaim the streets.
11. Defendants Sergeant and Officers maliciously prosecuted one or more Plaintiffs to punish them and deter other demonstrators from continuing to protest.
12. Just the month before, Defendants had exercised restraint when demonstrators, some of whom openly carried weapons and engaged in hate speech while violating statewide social-distancing and mask mandates, protested the COVID-19 lockdown at and around the Statehouse.
13. Despite the excessive use of force earlier on May 28, 2020, the overwhelming majority of the demonstrators remained nonviolent, fled from the toxic chemicals, and left, sought medical assistance, or tried to regroup at a safe distance.
3

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14. After Defendants needlessly escalated and provoked protestors, there were sporadic incidents of property destruction or harassment of law enforcement officers by throwing objects, but none of these actions caused serious injury to officers, and none of them were committed by or reasonably could have been attributed to the Plaintiffs and other nonviolent demonstrators.
15. After Defendants had escalated their force against non-violent protestors, triggering property destruction by others, they authorized more police and mutual-aid law enforcement personnel to use greater force against the remaining demonstrators, who were injured even though the overwhelming majority of them were not engaged in any violence toward police or property destruction.
16. On May 29 and 30, a similar dynamic occurred; a curfew from 10:00 p.m. to 6:00 p.m. was imposed on May 30; and public indignation at the broadcasts on social media and local and national television of the demonstrations and reports and pictures or video sent to reportcpd@columbus.gov ultimately convinced the Columbus Mayor, who had initially falsely described what had been happening and excused the police use of force, to limit the use of tear gas and, on June 1, 2020, denounce excessive force by police officers.
17. Plaintiffs have suffered injuries to their civil rights and their bodies, and they reasonably expect to exercise, and are unwilling to refrain from exercising, their fundamental rights to assemble, protest, travel, and live freely within and around Columbus in the future.
18. Plaintiffs seek declaratory and injunctive relief; compensatory damages for injuries; punitive damages from Defendants Chief, Sergeant, and Officers; and attorneys’ fees and costs for violations of their Fourth and Fourteenth Amendments rights to be free from excessive use of force and malicious prosecution; their First and Fourteenth Amendments rights to peaceably assemble and exercise freedom of expression; and/or their Ohio common-law right not to battered or maliciously prosecuted and/or injured by the gross negligence of police
4

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officers, caused by the failure of Defendants City of Columbus and Chief to adopt effective policies and adequately train, supervise, and discipline police officers. II. Jurisdiction and Venue
19. This Court has jurisdiction over this action by virtue of 28 U.S.C. §§ 1331 (federal question); 1343 (civil rights); and 1367 (supplemental jurisdiction).
20. Declaratory, equitable, and injunctive relief is sought pursuant to 28 U.S.C. §§ 2201; 2202; 42 U.S.C. § 1983; and the common law of the State of Ohio.
21. Under 42 U.S.C. § 1983 and the common law of the State of Ohio, compensatory damages may be awarded against all Defendants and punitive damages be awarded against Defendants Chief, Sergeant, and Officers.
22. Costs and attorneys’ fees may be awarded pursuant to 42 U.S.C. § 1988, Fed. R. Civ. P. 54, and the common law of the State of Ohio.
23. Venue lies in this forum pursuant to 28 U.S.C. § 1391(b) and S.D. Civ. R. 82.1 because the claims arose in Franklin County, Ohio where Defendant City of Columbus is located and operates the Division of Police, headed by Defendant Chief, which empowered Defendants Chief, Sergeant, and Officers to use force. III. Parties
24. Plaintiff Tamara K. Alsaada is an African-American female and a citizen of the State of Ohio residing in Franklin County, Ohio; serves in the position of Lead Organizer for the Juvenile Justice Coalition, a non-profit organization committed to improving Ohio’s juvenile justices system; was the founder and is the Organizing Director of People’s Justice Project, a non-profit organization organizing working people and people of color to lead the fight for safe, healthy, equitable lives by opposing mass incarceration, and has facilitated Heal Columbus, a web site focused on restructuring the Division of Police and involving community oversight; has been actively involved in criminal justice reform for more than 15 years; received the 2017
5

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YWCA Women of Achievement award; and has published several books on topics related to her work.
25. Plaintiff Demetrius Burke is an African-American male and a citizen of the State of Ohio residing in Franklin County Ohio.
26. Plaintiff Bernadette Calvey is a 21-year-old Caucasian female, a university student, and a citizen of the State of Ohio residing in Franklin County Ohio.
27. Plaintiff Stephanie Carlock is a 21-year-old Caucasian female; graduated from The Ohio State University in December 2019; worked for Defendant City as an employee of the Columbus Women’s Commission before she was indefinitely laid off due to the COVID-19 pandemic; currently works full-time at a Columbus nonprofit organization; and is a citizen of the State of Ohio residing in Franklin County Ohio.
28. Plaintiff Andrew Fahmy is a 23-year-old male and a citizen of the State of Ohio residing in Franklin County, Ohio.
29. Plaintiff Talon Garth is an African-American male and a citizen of the State of Ohio residing in Franklin County Ohio.
30. Eva Heyer is a Caucasian female, age 19, and a citizen of the State of Ohio residing in Franklin County, Ohio.
31. Plaintiff Randy Kaigler is an African-American male and a citizen of the State of Ohio residing in Franklin County, Ohio.
32. Plaintiff Rebecca Lamey is a Caucasian and Mexican female and a citizen of the State of Ohio residing in Franklin County, Ohio.
33. Plaintiff Nadia Lynch is a Caucasian Female and a citizen of the State of Ohio residing in Franklin County Ohio.
6

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34. Plaintiff Aleta Mixon is a 39-year-old African-American female who is the single mother of four children, employed as a nurse’s aide, and a citizen of the State of Ohio residing in Franklin County Ohio
35. Plaintiff Darrell Mullen is a Caucasian male and a citizen of the State of Ohio residing in Franklin County, Ohio.
36. Plaintiff Heather Wise is a Caucasian female and a citizen of the State of Ohio residing in Franklin County, Ohio.
37. Defendant City of Columbus is a political subdivision of the State of Ohio pursuant to Chapter 2744, Ohio Revised Code; at all times material to this Complaint, the employer of Defendant Chief, Sergeant, and Officers; established policies on and trained, supervised, and disciplined, or failed to do so, its Sergeant and Officers in the use of force during demonstrations and retaliating for speech they hated; and entered into agreements with other entities to provide mutual-aid law enforcement personnel under its general direction.
38. Defendant Thomas Quinlan, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police as its Chief; is being sued in his individual and official capacities; convened Division leadership after the May 25, 2020 killing of George Floyd to prepare for mass protests in Columbus; without imposing any enforceable or meaningful restraints on the use of non-lethal force authorized Defendants Sergeant and Officers to use such force; continuously monitored the mass protests starting on May 28, 2020, in Columbus; knew that Defendants Sergeant and Officers had used excessive force; has not provided effective policies and adequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; was a ‘person’ under 42 U.S.C. §1983 who acted under color of law; and provided general direction to mutual-aid law enforcement personnel from other entities.
7

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39. Defendant Sergeant David Gitlitz, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
40. Defendant Officer Shawn Dye, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
41. Defendant Officer Thomas Hammel, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
42. Defendant Holly Kanode, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in her individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
8

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43. Defendant Officer Kenneth Kirby, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
44. Defendants John or Jane Doe, at all times material to this Complaint, were police officers or mutual-aid law enforcement personnel whose identities are not currently known; they are being sued in both their individual and official capacities; are employees of the Defendant City of Columbus, Ohio or a mutual-aid law enforcement entity; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they hated; and each is a “person” under 42 U.S.C. §1983 who acted under color of law. IV. Facts
A. Societal Background 45. For years, African-Americans have been the victims of police and vigilante use of deadly excessive force, and Plaintiffs and the other demonstrators have said the victims’ names during their protests. 46. Those names include Tamir Rice, a 12-year-old African-American killed in 2015 by a Cleveland Police Officer when the child was carrying a pellet gun; Breonna Taylor, an African-American Emergency Medical Technician, shot eight times on March 13, 2020, by officers of the Louisville Metro Police Department who were executing a no-knock warrant at her residence; Michael Brown, an unarmed African-American teenager, fatally shot in 2014 by a
9

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Ferguson, Missouri police officer; Eric Garner, an African-American whose cry, “I can’t breathe,” was repeated by George Floyd, fatally choked in 2014 by a New York City police officer who was arresting him for selling loose cigarettes; Philando Castile, an African-American elementary school cafeteria worker shot five times during a 2016 traffic stop by a St. Paul, Minnesota police officer; and Trayvon Martin and Ahmaud Arbery, young African-Americans killed by vigilantes, one of whom was a former police officer.
47. Since the May 28-June 3, 2020 Columbus protests, the list has grown. https://www.cbsnews.com/news/say-their-names-list-people-injured-killed-police-officerinvolved-incidents/
48. While in a handful of cases, discipline had been meted out and prosecutions pursued, most of the police officers were not disciplined, let alone successfully prosecuted; indeed, when George Floyd was killed there had been no police discipline meted out for Breonna Taylor’s death.
49. The widespread dissemination of the May 25, 2020 video of Officer Chauvin killing George Floyd coupled with the killing of Breonna Taylor and the history reflected in those names, caused an eruption of public revulsion about police use of excessive force on African-Americans and other minorities.
50. Social media facilitated the scheduling of demonstrations. B. Defendants’ Preparation for Demonstrations 51. Defendants knew by May 26, 2020, that demonstrations would occur in downtown Columbus.
10

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52. Defendants knew that the group Black Lives Matter would call for such demonstrations.
53. Defendants knew that Black Lives Matter is an organized movement dedicated to non-violent civil disobedience in protest of incidents of police brutality against AfricanAmericans, which began in 2013 when activists uses the hashtag #BlackLivesMatter on social media after the acquittal of George Zimmerman in the shooting death of African-American teen Trayvon Martin in February 2012, and was nationally recognized for street demonstrations following the Brown and Garner deaths.
54. Defendant City and Chief monitored social media communications to and from Black Lives Matter and were aware, before the evening of May 28, 2020, that Black Lives Matter was encouraging a non-violent protest in Columbus.
55. Many of Plaintiffs and other protestors were affiliated with, identified with, and/or were inspired by the Black Lives Matter movement, dressing in clothing with the group’s name or initials, and using chants, such as “Black Lives Matter”; “I Can’t Breathe”; “No Justice, No Peace”; and “Hands up, Don’t Shoot,” which were associated with the group.
56. Many Columbus police officers and their supervisors, along with some mutual-aid law enforcement personnel, nurse an abiding hatred of the Black Live Matters movement, believing that it hurts the image of police and functions as a limitation on the prerogative of police to use force in keeping peace, protecting property, and preserving law and order.
57. Many Columbus police officers and their supervisors, along with some mutual-aid law enforcement personnel, resent the chant “Black Lives Matter” and prefer “Blue Lives
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Matter” and/or “All Lives Matter,” slogans that dismiss and deny the existence and importance of systemic racism in policing.
58. Anticipating the Columbus protests, many Columbus police officers and their supervisors, along with some mutual-aid law enforcement personnel, decided to use their assignments to exact revenge on the Black Lives Matter group and chill the exercise of association and freedom of expression by protestors.
59. One tactic used by Defendants City and Chief was to have Columbus Police Officers declare that a peaceful, nonviolent protest in the streets of Columbus had become an emergency and then order the protestors to disperse, using projectile weapons and caustic chemical agents to enforce that order.
60. Defendants City and Chief had adopted a policy, training Columbus Police Officers on that policy, to use that tactic in response to large protests.
61. Failure to disperse when ordered by a law enforcement officer is, under R.C. 2917.04, a minor misdemeanor, unless the order is given in an emergency, when the crime becomes a fourth-degree misdemeanor.
62. Under R.C. 2917.04(B), “Nothing in this section requires persons to disperse who are peaceably assembled for a lawful purpose.”
63. Defendants City and Chief have not emphasized in that policy or training the alternative to use of non-lethal force of citing and/or arresting protestors who do not disperse.
64. Defendants City and Chief have not emphasized in that policy or training a means for Columbus Police Officers to differentiate peaceable assembly for a lawful purpose from an actual emergency.
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65. Defendant City’s Division of Police has a history of excessive use of force and other abuses of their authority in response to nonviolent demonstrations and expressive conduct by those with whom police officers and their superiors disagree.
66. For example, on June 17, 2017, when Black Lives Matter became involved with a protest at the Columbus Pride Parade, police officers raced to the scene with pepper-spray canisters already drawn.
67. Only weeks later, on July 7, 2017, when protestors with disabilities, many of them in wheelchairs, peacefully occupied Senator Rob Portman’s Columbus office to urge him to vote against a federal health care bill supported by President Trump (who is supported publicly and privately by many police officers because he opposes any form of accountability for police abuses), Columbus Police Officers arrived at the scene, claiming there was an emergency call for assistance, and forcibly arrested the peaceful protestors using excessive force, including knocking over wheelchairs and carrying some protestors with mobility issues out of the building.
68. The following year, on July 11, 2018, Stephanie Clifford (also known as Stormy Daniels), the adult film star who was paid hush money by President Trump to conceal an affair, visited a Columbus strip club on a publicity tour embarrassing to the President, and several Columbus police officers targeted Daniels for arrest because of her status as an anti-Trump political symbol and arrested other women working at the club because of their association with Daniels and to cover up their retaliatory motive.
69. Social media message board posts among Columbus Police Officers celebrated the arrests as a blow against President Trump’s critics.
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70. In contrast, Columbus police officers have peacefully monitored protests and other expressive events in downtown Columbus with whose messages they are neutral or sympathetic, including the recent protests at the Ohio statehouse against COVID-19-related closures and the intense mass protests and public rallies in 2011 by public employee unions (including their own) against the effort to restrict collective bargaining rights.
71. Despite knowing about this history of Defendant City’s Division of Police and the negative feelings towards Black Lives Matter of its officers and their superiors, Defendants City and Chief took no specific precautions against excessive use of force in handling the protests.
72. Defendants City and Chief ensured that Columbus Police Officers were armed with batons, pepper spray, tear gas canisters, flash-bang grenades, and/or weapons that could shoot rubber bullets or wooden pellets.
73. Defendants City and Chief characterized such weapons as “non-lethal” and encouraged their use as an alternative to Tasers and guns and/or rifles that used regular bullets, despite knowing that these “non-lethal” weapons, while less lethal than officers’ service weapons, still have the potential to cause death or serious injury, especially (though not exclusively) when used without appropriate precautions
74. The way Columbus Police Officers and mutual-aid law enforcement personnel used such weapons posed a significant risk of serious and harmful bodily injury to nonviolent protestors.
75. Batons are hard, ergonomic sticks designed to inflict pain and, when applied with the usual force, will break bones and cause concussions and internal bleeding.
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76. Pepper spray is a chemical compound that irritates the target’s eyes, causing a burning sensation, pain, and temporary blindness; inflicts shortness of breath by burning the target’s lungs; and interferes with breathing by irritating the respiratory system, which, during the protests, was already a concern because of the COVID-19 pandemic.
77. Tear gas canisters contain a chemical weapon, colloquially known as mace, which causes severe eye and respiratory pain, skin irritation, bleeding, and blindness.
78. The use of tear gas in warfare is prohibited by international treaties. 79. Long-lasting effects of tear gas can include development of respiratory illnesses, and and the canisters can be delivered with such force that they cause severe bruising, loss of eyesight, and/or skull or bone fractures. 80. Flash-bang grenades, which are also known as stun grenades, are explosive devices that emit both an extremely loud bang, usually with higher decibels than a jet engine at full throttle, and ultra-bright light to disorient their targets. 81. Flash-bang grenades cause temporary blindness and pain to the retina, impaired hearing, and/or disruption of the inner-ear fluid and consequent loss of balance. 82. Rubber bullets, technically kinetic impact projectiles, are hard rubber or rubbercoated projectiles that can be fired at the same velocity as bullets from standard weapons or riot guns. 83. Rubber bullets are intended to cause pain without serious injury, but they typically cause not only contusions, abrasions, and hematomas, but also bone fractures. 84. Rubber bullets are not designed to be safely shot point-blank or at a target’s head, but it is well known that law enforcement officers often disregard this instruction.
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85. Wooden pellets are dowel-shaped rods sliced into small, bullet-sized projectiles to be fired at the same velocity as bullets.
86. Like rubber bullets, wooden pellets are intended to cause pain without serious injury, but they typically cause typically cause bone fractures as well as contusions, abrasions, and hematomas.
87. Wooden pellets can also splinter and infect areas where their targets are hit. 88 While they are not designed to be safely shot point-blank or at a target’s head, officers frequently do so anyway. C. Days and Nights of Police Rage 89. Over the course of the demonstrations on May 28, 29, and 30 and June 1, 2, and 3, Columbus Police Officers beat peaceful protestors and bystanders; pepper-sprayed without provocation and at point blank range protestors and observers, including United States Congresswoman Joyce Beatty, City Council President Shannon Hardin, and County Commissioner Kevin Boyce; lobbed and/or shot tear gas canisters without provocation; fired rubber bullets or wooden pellets and flash-bang grenades directly at vulnerable body areas of protestors, as truly and accurately reflected in a video posted at https://www.youtube.com/watch?time_continue=5&v=vZaoz9ZRVOc&feature=emb_title and shown below; and targeted identified journalists and individuals providing medical assistance. A true and accurate copy of that video is provided below (double click to play or click the link).
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90. The targeting of identified journalists was done to eliminate eye-witness reports and photographs or videos of police engaging in use of excessive force and retaliating against protestors for the content and urgency of their expression.
91. A tactic used by Columbus Police Officers is “kettling,” where groups of nonviolent protestors are boxed in, typically by using commands, bicycles, horses, and/or lines of police, and moved from one place to another, even though the protestors were unwilling or, due to other protestors or physical barriers, unable to move, and then arresting them for resisting, obstructing, and/or failing to disperse.
92. Apart from assembling and chanting or holding signs in the middle of streets or other locations Columbus Police Officers wanted them to abandon, these groups of protestors were not violating, as reflected in the true and accurate pictures below, any laws, threatening violence, destroying any property, or hampering traffic.
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93. Another tactic used by Columbus Police Officers was collective punishment: responding to any action by an isolated individual who threw a water bottle, harassed or taunted an officer, or engaged in property destruction by indiscriminately pepper-spraying or teargassing a group of obviously different protestors who had not engaged in any such conduct.
94. The “kettling” and collective punishment created a chaotic situation among the protestors which Columbus Police Officers then used as an excuse for additional force including
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using force against protestors who moved to assist others who had been subjected to excessive force.
95. Defendant Chief knew that such tactics were being used to provoke demonstrators and justify arrests, but he did not intervene to limit their use.
96. To the contrary, Defendant Chief excused the targeting of identifiable journalists by falsely claiming that they had been difficult to identify and force was used in a fast-moving situation where officers were being assaulted “pelted with bottles and rocks.”
97. The false claims of Defendant Chief to excuse misconduct were intended to be taken by Columbus Police Officers, and were in fact taken, as a form of approval and condonation of their tactics and an invitation to continue and escalate them.
98. Photographs and videos taken at the scene demonstrate that journalists, who were wearing hats and hoodies bearing the name of their newspaper, were targeted even though nothing was being thrown at the police, the protestors were not out of control, and the situation was not fast-moving.
99. The way Defendants Sergeant and Officers routinely pepper-sprayed demonstrators who were not engaging in violent behavior is accurately illustrated by the picture below:
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© Getty
100. Social media contained first-hand accounts of excessive use of force; for example, https://www.facebook.com/permalink.php?story_fbid=1686026474878930&id=1000041478178 93 accurately reported about tear gas on May 30, 2020: “I experienced a traumatic event today. I was participating in a BLM protest with hundreds of other people today in downtown Columbus. We were yelling chants & marching around the statehouse on the sidewalks but nothing more as we were told this would be a peaceful demonstration. Then bike cops show up. All of them had gas masks on. People started getting uneasy. A SWAT truck drives by, yelling people to stay off the road. But other than people crossing on the crosswalk, no one was on the streets nor blocking the traffic. More cops on horseback show up. People starts murmuring. More police cars show up & park in the middle of a busy street. Police officers start unloading and gearing up. People were yelling ‘what are you doing? We’re not doing anything wrong!’ First rounds of tear gas goes off in the crosswalk area. People start screaming
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and yelling others to run. People were coughing and crying from the effects of the gas (there were children & seniors in the group). People were handing out water to those who needed to rinse their face. Another round of gas goes off. This time, ON THE SIDEWALK. Not on the roads, but directly on the sidewalk. People were running, jumping over the fence, falling on the ground & running for their lives. This is when my friend and I were impacted and we had to rinse our faces off with water for several minutes. We decided that it was getting too dangerous and left shortly afterwards. We weren’t attacking the police. We weren’t vandalizing/looting any properties. No protester had weapons on them. So tell me, why did we get maced?”
101. Corroborating that report is a video housed at https://www.youtube.com/watch?time_continue=30&v=AswhNfIjqG4&feature=emb_title accurately showing the tear-gassing of a group of protestors and police on horseback moving the protestors. A true and accurate copy of the video is provided below (double click to play or click the link).
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102. Reflecting the animus toward medical helpers are two accurate videotapes of Columbus Police Officers on May 30, 2020, chasing a clearly-marked helper down an alley where she had gone to help a protestor; the first posted on Twitter, (1) https://twitter.com/OncoKaty/status/1266816739444166656?ref_src=twsrc%5Etfw%7Ctwcamp %5Etweetembed%7Ctwterm%5E1266873339542470656&ref_url=https%3A%2F%2Fwww.col umbusnavigator.com%2Fcolumbus-police-protests%2F by Katy@OncoKaty asks, “Tell me, @ColumbusPolice what part of this is protect or serve? We were treating people in an alley and you gleefully chased us and sprayed another medic from a distance of inches and LAUGHED about it. #columbusprotest #ColumbusOhio,” with the second posted on Twitter, (2) https://twitter.com/SAColumbus/status/1266867613872857094, with the message: “Yet another disgusting example of what Ginther shamefully called ‘exceptional restraint’ - a Columbus PD officer point-blank spraying a street medic who is trying to help another protester screaming in pain (out of frame). #BlackLivesMatter #columbusprotest #georgefloyd. True and accurate copies of both videos are reflected below (double click to play or follow the links).
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(2)

103. One

May

30,

2020

video,

posted

at

https://twitter.com/lalaitskelcey2/status/1266821476122058752 by @lalaitskelcey2, accurately

“shows Columbus police macing a woman as she walks away from them. Absolutely

disgusting.” A true and accurate copy of that video is reflected below (double click to play or

follow the link).

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Case: 2:20-cv-03431-ALM-KAJ Doc #: 1 Filed: 07/08/20 Page: 26 of 81 PAGEID #: 26 104. The true and accurate copy of the picture below, which was posted by
KRobPhoto, gives a sense of how Columbus Police Officers used pepper spray to punish, here on May 30, 2020, walking up to a protester and spraying her in the face for being on South High Street while Congresswoman Beatty was nearby:
105. Columbus Police Officers pushing and pepper spraying protestors on the other side of a barrier on May 28, 2020, is accurately depicted at https://www.youtube.com/watch?time_continue=26&v=npXL2-NT1Zs&feature=emb_title. A true and accurate copy of that video is provided below (double click to play or click the link).
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106. The earlier portion of the nonviolent protests on May 28, 2020, is accurately depicted in the video at https://youtu.be/AB6LmkmLnUI which shows peaceful protestors sitting in the middle of a street when a phalanx of Columbus Police Officers on bicycles suddenly and without warning pepper spray them. A true and accurate copy of that video is provided below (double click to play or click the link).
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107. On May 29, 2020, Columbus Police Officers walked their bicycles, used them to block off a group of protestors, and then pepper-sprayed protestors, as accurately depicted on the video at https://www.youtube.com/watch?v=thjbZhftL_A. A true and accurate copy of that video is provided below (double click to play or click the link).
108. In addition to the injuries described below that each Plaintiff suffered from being mistreated by Columbus Police Officers, all plaintiffs suffered fear, frustration, anger, emotional distress, and/or humiliation, as a proximate cause of being mistreated.
D. Defendant City and Chief Knew of the Need for Effective Training, Supervision, and Discipline to Curb Police Use of Excessive Force and Retaliation for Associations or Expression Officers Hated.
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109. According to the police tracking website https://mappingpoliceviolence.org, during the years 2013 through 2019, Columbus Police Officers killed at a rate of 7.3 per 100,000 residents, which was the highest rate of any department in the State of Ohio and more than double the rate in Cleveland, Ohio.
110. During that period, Columbus Police Officers killed 27 African-Americans, including in 2016 Henry Green, age 23, who was killed by plainclothes officer in the predominantly Black neighborhood of South Linden, and three months later, 13-year-old Tyre King.
111. African-Americans make up 28% of the population of the City of Columbus, but during that period constituted half (varying between 49% and 53% since 2013) of the use-offorce incidents.
112. Defendant City and Chief were aware of these statistics and, while claiming to believe that most of the individual uses of force were justified, still knew Columbus Police Officers were engaging in a troubling pattern of mistreating African-Americans.
113. Despite this knowledge, Defendant City and Chief did not take specific steps to address what appeared to be mistreatment of African-Americans.
114. In order to become a Columbus Police Officer, applicants need only have a high school diploma or GED, be 20 years of age or older, have a valid driver’s license, and be a U.S. citizen.
115. Upon hire, Columbus Police Officers receive an initial salary of $58,947.20 per year, which steadily increases over their first four years of service, with officers who have worked for the department for more than 48 months receiving an annual salary of $90,230.40.
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116. In addition to their salary, Columbus Police Officers receive a generous benefits package which includes paid training, college tuition reimbursement, life insurance, individual and family health insurance, vision and dental plans, and a significant pension package through the Ohio Police and Fire Pension Fund.
117. In addition to pay and benefits, Columbus Police Officers have the option to provide security and traffic control services, usually referred to as “special duty pay,” at the rate of $54.00 per hour, which services are a condition for a parade permit and outdoor events and are typically provided by Columbus Police Officers.
118. The training received by Columbus Police Officers is based on the notion that being a police officer is an extremely dangerous profession, and stresses their security and safety above all else, especially their ability to use force whenever they feel threatened or perceive a threat to another.
119. Although being an actual patrol officer is a relatively dangerous profession, with average deaths of 13.7 per 100,000 employees, according to the Bureau of Labor Statistics, it is nowhere nearly as dangerous as common occupations such as roofers (51.5), farmers (24.7). truck drivers (26.0), and groundskeepers (18.6); indeed, with fatal injuries in the amount of 44.3 per 100,000, trash and recycling collectors’ jobs are more than three times as dangerous as a patrol officer’s job.
120. A reliable 2020 study demonstrates that only 4% of a police officer’s time is generally spent on handling violent crime. https://www.nytimes.com/2020/06/19/upshot/unrestpolice-time-violent-crime.html
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121. Defendant City has resisted appointing a civilian review board for police officer activities; instead, all citizen complaints against officers are handled by the Columbus Police Division’s Internal Affairs Bureau.
122. The Internal Affairs Bureau routinely dismisses citizen complaints against its officers as unfounded, almost always believing the statements of officers over that of citizens.
123. The Internal Affairs Bureau is motivated to dismiss citizen complaints as unfounded because finding against the Officer or Officers might subject the City to civil liability.
124. Even when citizen complaints of violence are sustained, over the years the Columbus Police Division has meted out disproportionately minor discipline for violent acts, such as written reprimand and short suspensions.
125. In turn, this custom of failing to discipline establishes standards which the union for Columbus Police Officers invoke to persuade arbitrators to reverse serious discipline as inconstant with past disciplinary standards.
126. Defendant City and Chief know that it is nearly impossible to fire a Columbus Police Officer for use of excessive force.
127. Per their union contract with Defendant City, Columbus Police Officers are indemnified for any damages (except punitive damages) awarded due to a claim of excessive force, and Defendant City provides free legal representation to officers accused of excessive force.
128. Defendant City and Chief knew before the demonstrations which started on May 28, 2020, that Columbus Police Officers faced little or no disincentive from engaging in
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excessive use of force and regularly failed to comply with the letter or spirit of training and policies on use of force, handling demonstrations, and retaliating for speech they hated.
129. Within the Columbus Police Division, it is an unspoken rule that, regardless of whatever violent acts a police officer may witnesses another officer doing, criminal charges will not be brought against that officer.
130. In the City of Columbus, misdemeanor offenses are prosecuted by the Columbus City Attorney, and felony offenses are prosecuted by the Franklin County Prosecutor’s Office.
131. Both the Columbus City Attorney’s Office and the Franklin County Prosecutor’s Office have an unwritten rule that no criminal charges are to be brought against police officers for acts of violence committed against citizens while in uniform.
132. This unwritten rule applies regardless of the egregiousness of the offense or the strength of the evidence of the officer committing the offenses.
133. Incidents of violence which would cause a regular citizen to be charged with assault, battery, or other crimes of violence are not charged against police officers for the sole reason that they are police officers.
134. It is common knowledge among Columbus Police Officers that, with the possible exception of deadly violence videotaped by citizens, they are immune from any prosecution for acts of violence committed within the City of Columbus.
135. The combination of a toothless disciplinary policy, indemnification from civil liability, and practical immunity from criminal prosecution, creates a perfect storm in which Columbus Police Officers know that there will nearly always be no repercussions to them for violent acts.
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136. With regard to all but one recent police killings (a shooting of a white woman by an African-American officer), the Columbus Police Division did not issue significant discipline for any of the officers involved, and no criminal charges were filed against the officers.
137. For example, in April of 2017, one of the officers who shot Henry Green, Officer Zachary Rosen, was caught on videotape stomping on the head of a handcuffed and helpless African-American suspect who was lying on the sidewalk.
138. Despite the fact that Officer Rosen had plainly committed an act of felonious assault that could have killed or grievously injured the suspect, the Columbus City Attorney’s Office and Franklin County Prosecutor’s office declined to bring criminal charges against Officer Rosen solely because of the fact he was a police officer.
139. On June 14, 2017, then-Columbus Police Chief Kim Jacobs determined that an appropriate punishment for Officer Rosen stomping on the head of a helpless individual was a 24-hour suspension and recommended this punishment to Columbus Public Safety Director Ned Pettus.
140. In July of 2017, Public Safety Director Pettus rejected the recommendation of Chief Jacobs and terminated Officer Rosen’s employment.
141. Infuriated that one of their members had been terminated for kicking a helpless African-American suspect in the head, the Columbus Fraternal Order of Police (“FOP”) Lodge No. 9 unanimously approved a no-confidence vote in Columbus Mayor Andrew Ginther, Public Safety Director Pettus, and then-City Council President Zach Klein.
142. In announcing the no-confidence vote, FOP President Jason Pappas stated: “We want to send the message that we’ve lost faith. It demonstrates to those individuals that we no
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longer have confidence in their ability to lead. Unless they make significant changes by funding us and staffing us and supporting our officers who are out there day in and day out, that we will not have confidence in their ability to lead us or this city.”
143. In March 2018, an arbitrator rescinded Safety Director Pettus’s termination and reinstated Officer Rosen to his patrol officer position with full back pay.
144. In May 2018, Defendant City paid a $30,000.00 settlement to the individual whose head Officer Rosen had stomped on.
145. This settlement came from public tax dollars, not from Officer Rosen, Defendant City provided free legal representation to Officer Rosen throughout the process.
146. To eliminate the pattern or practice of excessive use of force and retaliating for speech they hated by Defendant City Police Officers and mutual aid law enforcement personnel cooperating with them, structural reform, modified policies, and civilian monitoring should, in addition to other policies and practices that may be deemed necessary after further discovery of the facts, include:
a. Creation of a civilian review board empowered, funded, and staffed to receive complaints from individuals who believe they have been the victims of excessive use of force and/or retaliation for their speech; to investigate those complaints; and to recommend discipline which the Director of the Department of Public Safety must mete out absent clear and convincing evidence that the Board based the recommendation on inaccurate facts. b. Prohibition of the use by Defendant City Division of Police and/or mutual aid law enforcement personnel cooperating with the Division of tear gas, rubber
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bullets, wooden pellets, pepper spray, flashbang grenades, kettling, chokeholds, strangleholds, no-knock warrants, and pressure or weight on the neck, back, or hip of a prone suspect. c. Maintenance of body and vehicle cameras in good working order and use of those cameras during any interaction with a civilian. d. Prominent display of badge numbers and/or identity cards whenever a police officer interacts with the public. e. Recognition that individuals legitimating displaying “press,” “media,” “reporter,” “paramedic,” “medic,” or similar words and/or symbols are permitted to be present in a position enabling them to record at protests and/or to intervene to assist individuals who appear to have been injured and that all individuals, regardless of their occupation or non-violent activity, are permitted to record at protests or whenever an police officer interacts with the public. f. Commitment to affirmative action in recruitment, selection, retention, and promotion to ensure that at all ranks minority officers have more than a token presence. g. Training and adoption of policies on the use of batons, Tasers, firearms, and physical force that emphasize use of the least force necessary and then only after de-escalation and disengagement have been attempted, a clearly understood oral warning given, and a purpose other than punishing the target exists, with deadly force as the very last resort after other efforts to prevent serious bodily injury or death have been exhausted, and, unless imminent serious bodily injury
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or death is reasonably perceived, never to prevent flight or property damage, and expose how stereotyping, implicit bias, and racism affect an officer’s perception of an individual and the level of threat that individual poses. h. Contracting with and/or employing unarmed intervention specialists required to be used in responding to calls involving intoxication, drug use or abuse, mental health crises, teenagers or children, vandalism, and/or the homeless. i. Mandating that (i) any officer who witnesses what he or she believes in good faith to be an excessive use of force or retaliation must stop or attempt to stop another officer from that use of force or retaliation and report in detail within 24 hours that conduct to both the Division Chief and the Internal Affairs Bureau, and explain what steps the officer took to intervene in use of force or retaliation; and that (ii) any officer who uses force must prepare and file with superiors an incident report within eight hours detailing the amount of force used, his or her perception of the justification for that force to be used, the known or suspected injury to the suspect, the witnesses to that use of force, and any recordings from body and vehicle cameras, cell telephones, and/or other surveillance cameras. j. Inventory of Division equipment, assessing which equipment is more appropriate for use by the military during war than by police officers, and discarding such equipment. k. Screening applicants to determine whether they have been suspected of using excessive force in employment, military, and/or social settings and either
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affirmatively ensure that the suspicion was unfounded or reject the applicant, and re-screen officers every three years for psychological fitness. l. Documenting each suspected use of excessive force by an officer; placing a copy of the suspicion, investigation, and resolution in the officer’s file and preserving for ten years in a separate file the original or an electronic counterpart along with exhibits, drawings, recordings, and other evidence; making the entire file available to the Civilian Review Board and any prospective employer; and considering the entire file in making retention, assignment, and/or promotion decisions. m. Engaging in focused deterrence of serious crime by analyzing the specific blocks in neighborhoods and known individuals who have engaged in criminal activity and can reasonably be anticipated to do so again and allocating enforcement priority and referrals for social services accordingly. n. Scheduling meetings in predominantly minority neighborhoods to listen to civilian concerns; to acknowledge that past law enforcement practices, starting with the roots of modern policing in Southern States as slave patrols and later the enforcement of Jim Crow segregation, proceeding through acquiescence in lynching, racist mobs, and/or Ku Klux Klan activities, and culminating in the disproportionate focus on minorities in the war on drug use and abuse and related traffic stops, have created a rift which must be healed; and to discuss steps which might contribute to that healing.
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o. Payment for individual officers to have professional liability insurance but then requiring an officer to pay any premium increase attributed to that officer’s improper use of force and/or retaliation and conditioning continued employment on being insured. p. Appoint and pay for the employment of an independent monitor to oversee and ensure the successful implementation of the above steps. E. Mistreatment of Plaintiff Tamara K. Alsaada 147. On May 30, 2020, Ms. Alsaada, in her position as Organizing Director for the People’s Justice Project, showed up to a Black Lives Matter rally organized in front of the Ohio Statehouse with the goal of helping to lead the rally and to advocate for police reform. 148. Ms. Alsaada did not plan the event; however, given her role in the community she was looked at to help provide a voice for the event. 149. While Ms. Alsaada and other members of the People’s Justice Project were speaking on the microphone, protestors at the rally came to Ms. Alsaada and informed her that protestors were being arrested by Columbus Police Officers without justification. 150. Again, due to her role as a respected community organizer, even serving on Mayor Ginther’s Community Safety Advisory Commission, Ms. Alsaada and others walked over to the intersection of Broad and High to help resolve any pending conflicts. 151. Ms. Alsaada saw Deputy Chief Michael Woods standing near the intersection, who she knew from her time on the Mayor’s Community Safety Advisory Commission. 152. Ms. Alsaada noticed there were lines of police officers at the intersection on bicycles, on horseback, and in riot gear.
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153. Ms. Alsaada asked Deputy Chief Woods who was being arrested, and he informed her that no one was being arrested.
154. Ms. Alsaada asked Deputy Chief Woods to have the officers clear a path so that she could walk through and continue to address the topic of arrestees, and he subsequently had the officers allow her through.
155. As Ms. Alsaada and others walked through the line of officers in order to continue peacefully discussing any arrestees, Columbus Police Officers without notice, without any warning, and without any provocation, began to assault Ms. Alsaada and others with an onslaught of pepper spray.
156. Ms. Alsaada fell to the ground due to the assault and was unable to breathe or see. 157. Ms. Alsaada was carried to the corner of road and High where she was administered medical attention by volunteer medics. 158. Ms. Alsaada and numerous others suffered injuries and trauma due to the unprovoked assault by Columbus Police Officers. F. Mistreatment of Plaintiff Demetrius Burke 159. On Wednesday, June 3, 2020, late at night, Mr. Burke was inside his apartment near the intersection of East Starr Avenue and North 9th Street when he heard sirens and a commotion outside. 160. Mr. Burke’s motorcycle was then parked in his apartment complex’s parking lot. 161. Because he was concerned that whatever was going on outside would cause damage to his motorcycle, Mr. Burke went outside to get his motorcycle and move it to a garage provided by his apartment complex.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 1 Filed: 07/08/20 Page: 40 of 81 PAGEID #: 40 162. When he reached his motorcycle, Mr. Burke observed police officers walking
north on North 9th Street and decided to ask the officers what was going on. 163. Because he is an African-American male, Mr. Burke was concerned that the
police would act violently towards him and so he turned on his cellphone camera and filmed as he approached the officers.
164. Mr. Burke was aware that the City of Columbus had imposed a 10:00 p.m. curfew on all residents in public areas and so he was careful to remain on his own property and not step into the street while approaching the Columbus Police Officers.
165. Mr. Burke’s cellphone video clearly shows that he remained on the grass at all times and did not enter the street.
166. Below is a true and accurate copy of that video (double click to play or click 20200603_003718.mp4).
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167.

When he

was

within

speaking distance

of the Columbus

Police Officers,

Mr. Burke asked,

“What’s

happening”?

168. A

Columbus Police

Officer,

later

identified

as

Defendant Kenneth

Kirby, approached

Mr. Burke and

answered, “I’m

sure you know

you’re out after

curfew, right?”

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169. Mr. Burke responded, “I live right here, I’m on my property.” 170. Defendant Kirby then said, “You’re standing on the street, come here.” 171. Mr. Burke protested that he was “right here, I’m on the grass.” 172. Defendant Kirby then stated that “it doesn’t matter, you’re under arrest” and falsely told another officer that Mr. Burke was standing in the street. 173. An officer then used a zip tie to restrain Mr. Burke’s hands behind his back. 174. Mr. Burke was then transported to a nearby fire station being used to process individuals who had been arrested during the George Floyd protests. 175. From the fire station, Mr. Burke was taken to the Jackson Pike Correctional center, where he was placed in a cell with other arrested individuals. 176. In the cell where Mr. Burke was detained, there were many individuals who had been arrested for issues not related to the protest, including felonies and violent crimes. 177. During his time in the cell, Mr. Burke witnessed an intensely violent fight, which was terrifying and put him at risk of physical harm. 178. Mr. Burke remained in the cell until early afternoon when his friend posted bail for him. 179. On Tuesday, June 9, 2020, Mr. Burke’s curfew violation charges were dismissed as part of the blanket dismissal of curfew violations. G. Mistreatment of Plaintiff Bernadette Calvey 180. On May 30, 2020, Ms. Calvey was in the Short North area, accompanied by a roommate.
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181. Although Ms. Calvey had not intended to participate in a protest, she and her roommate were walking in the vicinity of Second Avenue and High Street when they heard protestors nearby.
182. They walked in the direction of the protests to see what was going on and potentially join the protest since they agreed with the message against police brutality and racism.
183. Ms. Calvey was aware that there had been a curfew imposed that evening, but it was approximately 9:00 p.m., she was not far from her residence, and the curfew would not start for another hour.
184. As Ms. Calvey approached the protest, it appeared peaceful, though Columbus Police Officers were massed in the street approximately 50 feet away from where she was standing.
185. The Columbus Police Officers were shouting at the protestors and began firing projectiles at them at close range.
186. Within moments of approaching the protest, Ms. Calvey was struck in the face by a projectile that, upon information and belief, was a wooden pellet.
187. The wooden pellet split open her chin and caused excruciating pain. 188. The round that hit Ms. Calvey in the hand had been directly fired at her with the intention of hitting her and had not been “skip-fired” off the ground.
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190. Ms. Calvey and her roommate fled down a side alley, where she received water and bandages from a group of protestors.
191. Ms. Calvey was forced to miss two days of work due to her facial injury and remained unable to chew solid food for approximately a week due to the pain in her jaw.
192. The projectile wound has created a prominent scar on Ms. Calvey’s chin, which appears to be permanent.
H. Mistreatment of Plaintiff Stephanie Carlock 193. In the late afternoon of Saturday, May 30, 2020, near the Statehouse, around Broad and High Streets, Ms. Carlock joined friends who were protesting against police brutality and racism. 194. When Ms. Carlock arrived at the protest, non-emergency traffic had been rerouted, and she and others were standing stationary in the crosswalk across High Street. 195. Many Columbus Police Officers were there dressed in riot gear, but no announcements were made and no orders were given. 196. While Ms. Carlock was standing stationary in the crosswalk, a Columbus Police Officer in riot gear sprayed her in the face with pepper spray at close range with no provocation, causing Ms. Carlock intense pain and affecting her vision. 197. Columbus Police Officers began pushing the crowd of people in which Ms. Carlock was standing with their riot shields and telling them to leave. 198. A van rolled up and many Columbus Police Officers or Franklin County Sheriff’s Office Deputies left the van and began firing projectiles at the crowd.
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199. Ms. Carlock and her companions then moved to the Statehouse lawn, but mounted Columbus Police Officers approached and used their horses to push the crowd out of the Statehouse area.
200. Ms. Carlock moved onto Broad Street and began walking east, with mounted Columbus Police Officers following the crowd and using their horses to push it further down Broad Street.
201. Ms. Carlock and her companions reached the intersection of Broad Street and Fifth Street and were standing on the sidewalk, next to the plaque recognizing the site of the first Wendy’s restaurant.
202. Columbus Police Officers were still pushing the crowd, and Ms. Carlock and others were asking them where they wanted the protestors to go.
203. Instead of answering and directing the crowd, the mounted Columbus Police Officers rode their horses onto the sidewalk and began pushing their horses into the crowd.
204. Ms. Carlock was struck by the legs of horses purposely being ridden into her and other protestors.
205. Ms. Carlock and others in the crowd continued to walk to the next corner, at which point they were confronted by Columbus Police Officers on bicycles.
206. These officers cornered the crowd against a building, on the sidewalk, and deployed tear gas, causing Ms. Carlock to choke and cough and have difficulty breathing.
207. Ms. Carlock and others asked the officers why they were tear-gassing a peaceful crowd on a sidewalk, and, instead of answering, the officers laughed while the protestors choked on the gas.
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208. Ms. Carlock fled and rejoined protestors in another area. 209. The following evening, Sunday, May 31, at around 8 p.m., Ms. Carlock and a friend went to the Short North area of Columbus, walking down High Street toward downtown, on the sidewalk, seeking to join another protest against police brutality and racism. 210. Ms. Carlock was aware there was a curfew of 10:00 p.m. that evening, but it was still 40 minutes before curfew (approximately 9:20 p.m.), when the group she was in approached the intersection of High Street and Spring Street. 211. Ms. Carlock and the protestors she had joined were peaceful, walking on the public sidewalk, and not disobeying any orders from law enforcement. 212. As Ms. Carlock neared Spring Street, a black van pulled up and Columbus Police Officers in riot gear jumped out. 213. Without warning, the officers began shooting projectiles and tear gas at the crowd. 214. Ms. Carlock was once again exposed to tear gas, affecting her breathing and causing her to choke and cough. I. Mistreatment of Plaintiff Andrew Fahmy 215. On June 1, 2020, Mr. Fahmy and a friend went to downtown Columbus to participate in the protests. 216. They arrived at the Statehouse at 7:00 p.m. and then participated in a march north on High Street along with several thousand other protestors. 217. Eventually, at approximately 10:20 p.m., the march reached the intersection of Lane Avenue and High Street just north of The Ohio State University.
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218. By the time the march had reached Lane Avenue, the number of marchers had dwindled considerably and the march seemed to be coming to an end.
219. As the marchers approached Lane Avenue on High Street, Columbus Police Officers wearing riot gear approached the marchers from the south.
220. When the Columbus Police Officers were within approximately 15 feet of the remaining marchers, they began spraying pepper spray.
221. The pepper spraying caused the remaining marchers to run in all directions. 222. Mr. Fahmy retreated east on Lane Avenue along with many other marchers. 223. The Columbus Police Officers then formed a line across Lane Avenue approximately 200 feet east of High Street facing east. 224. Mr. Fahmy and other protestors got out their phones and began filming the Columbus Police Officers, who were approximately 20 feet away. 225. None of the protestors was behaving violently or throwing anything at the Columbus Police Officers. 226. Mr. Fahmy then observed the Columbus Police Officers preparing to fire tear gas canisters. 227. Before Mr. Fahmy could move out of the way, the Columbus Police Officers shot tear gas canisters directly into the crowd. 228. Mr. Fahmy was hit in the leg with a canister, which fractured his fibula, causing severe pain, and requiring treatment; true and accurate pictures of his injuries, including an x-ray of the fracture, are shown below.
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J. Mistreatment of Plaintiff Talon Garth 229. On May 31, 2020, Mr. Garth attended a downtown protest of police abuse. 230. In the early evening, along with hundreds of other protestors, Mr. Garth was standing in the street at the intersection of Broad and High Streets. 231. That intersection and several blocks had long been closed that evening to vehicular traffic. 232. While Mr. Garth was standing at the intersection, a Columbus Division of Police Armored Vehicle with the word acronym SWAT painted on the side pulled into the intersection and stopped. 233. After the armored SWAT vehicle stopped, a team of officers disembarked from it. 234. The SWAT officers began to tell the crowd standing at Broad and High Street to move. 235. Prior to the arrival of the SWAT officers, the protest at Broad and High had been peaceful, with no violence or attacks on property. 236. Prior to the arrival of the SWAT officers, protestors at Broad and High had maintained a good relationship with Ohio Highway Patrol Officers stationed at the Statehouse. 237. Because there was no vehicular traffic on Broad or High Streets, there was no reason for the protestors to be removed from the streets. 238. After being told to move, Mr. Garth and more than 100 other protestors close to the SWAT officers sat down on the street in an act of passive resistance. 239. Mr. Garth was then approximately ten feet away from the SWAT Officers.
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240. At this point, a few individuals in the back of the huge crowd, who were not among those sitting close to the SWAT officers, threw several water bottles at them.
241. It was obvious that the bottles had not been thrown by Mr. Garth or any of the protestors sitting in front of the SWAT officers.
242. Nevertheless, the SWAT Officers immediately took deliberate aim and began firing wooden pellets directly into the peaceful seated protestors who were sitting directly in front of them.
243. The wooden pellets were around the size of pill bottles. 244. Mr. Garth was struck by a total of ten wooden pellets, one on each knee, four on his right leg, one on his right thigh, one in the arm, and one in the back of his head. 245. A wooden pellet also struck Mr. Garth in the foot, fracturing his fourth metatarsal bone. 246. True and accurate pictures of his leg and foot injuries are below.
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247. Mr. Garth had to seek medical attention for his fractured foot and has been required to wear a walking boot while it heals.
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248. In addition to breaking his foot, the wooden pellets caused severe lacerations to his shins and other parts of his body, many of which are likely to cause permanent scarring.
249. As a proximate result of his injuries, Mr. Garth has been unable to work since the incident and has suffered significant lost income.
K. Mistreatment of Plaintiff Eva Heyer 250. Around 7:00 p.m. on May 28, 2020, Ms. Heyer joined a group of protestors in a march from the King-Lincoln area of Columbus to downtown Columbus, where she and approximately 100 other protestors continued protesting in the intersection of Broad and High. 251. At approximately 8:35 p.m., shortly after the group arrived at that intersection, Columbus Police Officers in regular uniforms of white shirts and trousers formed a line north of the intersection to prevent protestors from marching north up High. 252. Columbus Police Officers had blocked off the intersection with four vehicles and were also blocking sidewalks north of the intersection. 253. Prior to the arrival of the Columbus Police Officers, the protest has been peaceful. 254. Upon their arrival, though, some of the Columbus Police Officers became aggressive with protestors, and, as truly and accurately depicted in the video posted at https://www.youtube.com/watch?v=npXL2-NT1Zs pepper spray was used on small sections of the protestors and one protestor was punched. A true and accurate copy of that video is provided below (double click to play or click the link).
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255. Because of the placement of the police cars and the way streets and sidewalks were blocked, protestors began to feel that they were being pinned in the intersection.
256. At around 10:00 p.m., most of the Columbus Police Officers who had been keeping order were replaced with Officers wearing riot gear.
257. Columbus Police Officers then announced that an emergency had been declared and the protestors had to disperse.
258. From what Ms. Heyer observed, the vast majority of the protestors had remained peaceful, shouting chants, including profanity, singing, carrying protest signs, and making gestures such as keeping their hands up or sitting down.
259. Two African-American protestors had megaphones and were leading the chants and singing.
260. One of the chants was, “Whose streets? Our streets.” 57

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261. Apart from the desire of Columbus Police Officers to regain control of the streets, there was no apparent emergency.
262. Traffic on Broad and High had long been diverted. 263. Columbus Police Officers had blocked off the intersection with four vehicles and were also blocking sidewalks north of the intersection. 264. The sidewalks south of the intersection were crowded with protestors and complying with the dispersal order was difficult due to the crowds being wedged in and unable to move. 265. Ms. Heyer observed Columbus Police Officers shaking pepper-spray cans and expected that they were going to use them on the protestors. 266. Because she was directly in the line of fire, Ms. Heyer removed her contact lenses and put them in her pocket. 267. Ms. Heyer was pepper-sprayed and, though she blocked most of it with the sign she was carrying, was hit in her eyes and moved to the rear for medical attention. 268. Protestors soon reported hearing a Columbus Police Officer point at the two African-American protestors with megaphones and telling the Officers to neutralize them. 269. A call came for “white” protestors to link arms into a human chain to shield the two African-American protestors. 270. Ms. Heyer re-entered the intersection to join the human chain, and she stood about a foot away from a Columbus Police Officer. 271. At that time, Ms. Heyer was linking arms with other protestors, and neither she nor they were touching Columbus Police Officers or pushing forward.
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272. The Columbus Police Officer in front of Ms. Heyer raised his pepper-spray can less than three feet away from her eyes and sprayed her.
273. The pepper spray hurt Ms. Heyer so much that she bent over to touch her face and eyes and protestors helped her move to sit down and get medical attention; her eyes were completely swollen shut, and she could not see for ten minutes or so.
274. Ms. Heyer attended another day of protest on May 30, 2020 on Broad Street downtown, where she was ultimately injured by wooden pellets shot at and/or near protestors who were standing and chanting about twenty-feet away from a line of police.
L. Mistreatment of Plaintiff Randy Kaigler 275. On Friday, May 29, 2020, at approximately 7:30 p.m., Plaintiff Kaigler was driving through downtown Columbus when he observed a peaceful protest in process near the intersection of Broad and High Streets. 276. Because he believed in the message of the protest, Mr. Kaigler decided to join it, parking his car and proceeding on foot towards the intersection of Broad and High Streets. 277. While walking to the protest, Mr. Kaigler observed a group of Columbus Police Officers standing on Broad Street across the street from the Ohio Statehouse. 278. The Columbus Police Officers observed by Mr. Kaigler did not appear to be engaged in crowd-control activities or carrying crowd-control paraphernalia but rather were milling around a cruiser with ample room in the street to move. 279. When Mr. Kaigler observed the Columbus Police Officers, Broad Street was closed to vehicle traffic and officers and protestors were in the street. 280. The protest was loud but peaceful.
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281. Upon seeing the Columbus Police Officers, Mr. Kaigler decided to make a political statement: he walked within approximately five feet of them, stopped and raised his arms in a “hands up, don’t shoot” position and stated to the officers “I can’t breathe.”
282. The “hands up, don’t shoot” gesture originated at protests after the August 9, 2014, shooting of Michael Brown in Ferguson, Missouri, and displayed a common sign of submission which communicated that a suspect was not presenting a threat and, like Brown’s alleged conduct, should not be shot.
283. The statement “I can’t breathe” is a reference to the 2014 killing of Eric Garner and 2020 killing of George Floyd.
284. The Columbus Police Officers who observed and heard Mr. Kaigler knew the origin and meaning of those phrases.
285. The sun was out, and the area around Mr. Kaigler was well lit. 286. Mr. Kaigler did not have any sort of weapon, and his empty hands were clearly visible to the officers. 287. Mr. Kaigler’s political statement did not cause any alarm or concern about their safety for the group of Columbus Police Officers; indeed, when Mr. Kaigler was pepper-sprayed, the other Columbus Police Officers appeared nonchalant. 288. After Mr. Kaigler made his statement, one of the officers, later identified as Defendant Gitlitz, casually drew a canister of mace or pepper spray and, without audible warning, sprayed Mr. Kaigler directly in the face at point blank range. 289. This true and accurate copy of a photograph posted by @Cheesemaman accurately depicts Defendant Gitlitz pepper-spraying Mr. Kaigler:
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290. After he was sprayed, Mr. Kaigler was blinded, could not breathe, and was in intense pain.
291. Other protestors around Mr. Kaigler assisted him to a first-aid station, where his eyes were rinsed.
M. Mistreatment of Plaintiff Rebecca Lamey 292. On May 31, 2020, Ms. Lamey, along with two friends, participated in a peaceful protest for hours. 293. At 7:54 p.m., Columbus Police Officers abruptly decided to stop the protest. 294. At that point, Ms. Lamey and other protestors were on their knees, with their hands up, on the sidewalk. 295. Columbus Police Officers ordered the protestors to leave and appeared to be ready to use force against them. 296. Protestors started running in fear of the force, with some getting knocked down and trampled. 297. Ms. Lamey and her two friends hung back to avoid getting separated or knocked down. 298. Ms. Lamey was filming on her cellphone, which she was holding well above her waist, and walking backwards while keeping an eye on her friends. 299. A Columbus Police Officer turned the corner and, without warning, shot a wooden pellet at Ms. Lamey, hitting her hand, knocking the cellphone to the ground.
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300. When Ms. Lamey bent over to pick up her cellphone, she was shot four more

times; around the same time, her friend was hit by wooden pellets in the back of the head, neck,

and upper arm.

301. Based on the location where the wooden pellet hit Ms. Lamey, it must have been

directly fired at her, rather than “skip-fired” off the ground.

302. Ms. Lamey and a friend ran to a building half a block away, and he left the stairs

there to get some ice for her injury.

303. Moments after the friend returned with the ice and applied it to Ms. Lamey’s

hand, he screamed, “Get behind the pillar!,” as several unmarked vans approached.

304. The van doors opened and two Columbus Police Officers opened fire with

wooden pellets on Ms. Lamey, her friend, and two others, striking them.

305. A true and accurate video of the moment Ms. Lamey was hit by the wooden

pellets

(double

click

to

play

or

click

https://www.dropbox.com/s/dmu6uucrkhxmkim/Video.MOV?dl=0) and true and accurate

pictures of the swelling on Ms. Lamey’s hand and wrist and a wooden pellet which had been

fired by Columbus Police Officers are below.

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306. The swelling took so long to go down and the pain remained so bad that Ms. Lamey went to an Emergency Room a few days later, had X-rays, and learned that no bones were broken.
307. Ms. Lamey has not yet recovered the full use of her hand. N. Mistreatment of Plaintiff Nadia Lynch 308. On Saturday, May 30, 2020, at approximately 11:30 a.m., Ms. Lynch was attending the protest at the intersection of Broad and High Streets in downtown Columbus. 309. The intersection had been taken over by Columbus Police Officers, who had formed a box at the intersection with lines of officers facing protestors.
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310. The intersection had long been closed to vehicular traffic that afternoon, and many Columbus Police Officers were milling around in the middle of the street.
311. The Columbus Police Officers facing the protestors were wearing black helmets, black gas masks, and black military style tactical clothing.
312. Ms. Lynch stepped up to greet other protestors on the other side of the police line, taking a photo of other protestors and displaying the sign she had brought to the event.
313. Columbus Police Officers then began forming a line with their bicycles right next to Ms. Lynch, and she realized she was in a bad position.
314. Ms. Lynch then decided to go around and started walking back to her group of friends.
315. Ms. Lynch was grabbed by the backpack she was wearing by Defendant Officer Holly Kanode and thrown down to the ground, causing her head to hit the ground.
316. Three or more officers began to attack Ms. Lynch. 317. Ms. Lynch laid there, while they placed her hands behind her back and zip-tied them. 318. Before using force on her, no officer ever said anything to Ms. Lynch or yelled any commands. 319. All of these events took place in an open, well lit, and relatively calm area. 320. Ms. Lynch did not at any time pose a threat to a police officer or resist arrest. 321. Ms. Lynch was grabbed so quickly that, even if an order had been given to her, she would not have had time to comply with it.
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322. Ms. Lynch was then arrested and taken to Jackson Pike where she was slated and spent two hours in jail before she bonded out.
323. Ms. Lynch suffered physical injuries due to the assault and damage to her physical property.
324. Defendant Kanode had Ms. Lynch arrested for disorderly conduct and resisting arrest and later formally filed those criminal charges.
325. In order to charge Ms. Lynch with resisting arrest, Defendant Kanode falsely swore, under oath, that Ms. Lynch grabbed an officer and took him to the ground.
326. In addition to her false charges, Officer Kanode further submitted a police report with the ludicrous claim that Ms. Lynch had grabbed an unknown Officer by his riot gear and threw him to the ground.
327. Video footage of the incident conclusively and accurately shows that Ms. Lynch never engaged in any such conduct and that Officer Kanode’s account was a complete fabrication.
328. In order to charge Ms. Lynch with disorderly conduct, Defendant Kanode falsely swore, under oath, that Ms. Lynch had thrown water-filled bottles at police officers.
329. Video footage of the incident conclusively and accurately shows that Ms. Lynch never engaged throwing bottles; a true and accurate copy of the video is shown below (double click to play or click https://www.dropbox.com/s/nr6t9y2ph8yydv7/IMG_0113.mov?dl=0).
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330. When she charged Ms. Lynch, Defendant Kanode was aware that she had used

excessive force in arresting her.

331. Defendant Kanode falsified criminal charges to justify and cover up her excessive

use of force against Ms. Lynch.

332. When she falsified charges against Ms. Lynch, Defendant Kanode was aware that

being convicted of a charge involving an assault on an officer could lead to significant

imprisonment, a large fine, and a debilitating criminal record.

O.

Mistreatment of Plaintiff Aleta Mixon

333. On the evening of Friday, May 29, 2020, Ms. Mixon was aware that her oldest

daughter, who is 20 years old, was attending a protest against police brutality in downtown

Columbus.

334. After dropping a younger daughter at a different event, Ms. Mixon learned that

the protests her oldest daughter was attending might become dangerous.

335. Ms. Mixon unsuccessfully attempted to contact her daughter by telephone and

drove toward downtown Columbus.

336. Ms. Mixon had trouble driving to the vicinity where she believed her daughter

was and ultimately, around 9:00 p.m., parked her car on State Street, near the Ohio Statehouse.

337. Ms. Mixon left her vehicle to attempt to find her daughter and saw that Columbus

Division of Police officers in riot gear were massing in the street.

338. Ms. Mixon approached a white female officer who was not in riot gear and was

standing separate from the officers who were massing and began to ask the female officer for

assistance in locating her daughter.

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339. As the female officer was about to reply to her request, a white male Columbus Police officer charged toward her and sprayed her in the face with pepper spray.
340. The female officer confronted the male officer and said words to the effect of, “Why the fuck did you do that? She was just asking for help.”
341. Ms. Mixon began screaming from the pain of the pepper spray and calling for relief.
342. Two white male officers then approached and sprayed Ms. Mixon again. 343. Ms. Mixon fell to a seated position on the ground from the effects of the pepper spray, and she was sitting out of the street, on the sidewalk, still calling for help. 344. One of the white male officers continued spraying her, and she attempted to stand. 345. As Ms. Mixon attempted to stand up, the officer shoved her off the sidewalk and over the curb. 346. Ms. Mixon felt intense pain and a snap in her leg. 347. The officer who had shoved Ms. Mixon then stood over her and told her, “That’s what you get for your protest, bitch,” and he stepped hard on her knee, before walking away. 348. Another white male officer who had not been involved in the use of excessive force arrived and assisted Ms. Mixon, calling an ambulance and giving her advice for dealing with the effects of the spray. 349. Ms. Mixon was transported to Grant Hospital, where she was given X-rays and told she needed emergency surgery due to critical tears in a major tendon in her leg. 350. The X-rays also showed that Ms. Mixon’s kneecap had been shattered, with multiple fractures in the bone.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 1 Filed: 07/08/20 Page: 71 of 81 PAGEID #: 71 351. Ms. Mixon’s surgery was delayed until May 31, 2020, due to the urgent medical
needs of others injured in the protests. 352. Ms. Mixon was hospitalized until Tuesday, June 2, 2020, after which she was
released, with significant restrictions on her mobility. 353. Ms. Mixon is uncertain whether she will recover full use of her leg, and she
expects to be unable to work for a period of several months or longer; true and accurate picture of her leg post-surgery, including permanent scarring, is shown below.
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P. Mistreatment of Plaintiff Darrell Mullen 354. On Tuesday, June 2, 2020, at around 1:30 a.m., Darrell Mullen was walking by himself northbound on the sidewalk on the east side of North High Street. 355. Mr. Mullen was walking home from a friend’s house on Oakland Avenue to his residence on Findley Avenue. 356. On May 30, 2020, Columbus Mayor Andrew Ginther had issued an executive order instituting a city-wide curfew which required most residents to remain indoors from 10 p.m. to 6 a.m. and was to remain in effect until he rescinded it. 357. The executive order stated that being outside in violation of the curfew was an unspecified degree misdemeanor. 358. As of the time that Mr. Mullen was walking home, North High Street was deserted. 359. Near the intersection of High Street and Oakland Avenue, Mr. Mullen observed four or five police cars drive past him going northbound on High Street. 360. Upon observing the police cars, Mr. Mullen made no effort to flee and continued walking northbound on High Street. 361. Mr. Mullen then observed at least one of the police cars execute a U-turn and drive towards him. 362. Again, Mr. Mullen made no attempt to flee and watched the police vehicle drive up to him. 363. At this point, a Columbus Police Officer, later identified as Thomas Hammel, got out of the police cruiser and began running at Mr. Mullen.
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364. At no time did any Columbus Police Officer order Mr. Mullen to stop, give Mr. Mullen any verbal commands, or inform Mr. Mullen that he was under arrest.
365. Instead, Officer Hammel violently tackled Mr. Mullen, taking him face down on the sidewalk, and then applied pressure to the back of his head, grinding his face into the pavement.
366. Shortly after that tackling, two more officers got on top of Mr. Mullen and began striking his back and legs with their knees.
367. Mr. Mullen was quickly handcuffed, but officers continued to apply pressure to his back and legs, with Officer Hammel continuing to apply pressure to the back and side of his neck, pushing his face into the ground and preventing him from talking.
368. When he was finally able to talk, Mr. Mullen told the officers that he had just been walking home, and Officer Hammel replied, “I know exactly where you live, is your girlfriend out of jail yet?”
369. As a proximate result of the excessive use of force, Mr. Mullen suffered facial abrasions, bruising, and a significant injury to his leg that left him unable to walk.
370. A true and accurate picture of his facial injuries is below:
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371. Mr. Mullen was then charged with violating curfew and taken to jail. 372. Because of his leg injury, when Mr. Mullen arrived at the jail he was checked out by a nurse, who placed him in a wheelchair and recommended x-rays.
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373. When Mr. Mullen was released later that day at approximately 1:00 p.m., he was released on crutches.
374. Mr. Mullen was not charged with resisting arrest. 375. All charges against Mullen were subsequently dismissed. 376. Mr. Mullen has been unable to use his injured leg and as a result has been unable to work or care for himself. 377. On Friday, June 5, 2020, a lawsuit was filed against Defendant City alleging that the indefinite, city-wide curfew was unconstitutional. 378. Hours after the lawsuit was filed, Mayor Ginther rescinded the curfew. 379. On Tuesday, June 9, Columbus City Attorney Zach Klein dismissed all criminal charges for curfew violations brought under Mayor Ginther’s executive order, which included the criminal charge brought against Mr. Mullen. Q. Mistreatment of Plaintiff Heather Wise 380. On June 21, 2020, Ms. Wise went to downtown Columbus to participate in the protests. 381. During previous incidents, Ms. Wise had been subjected to violence at the hands of Columbus Police Officers, however on her June 21, 2020 visit downtown she was subjected to especially gratuitous violence. 382. At the corner of Broad and High, Ms. Wise was standing with a group of protestors who were holding shields to protect themselves from any potential police violence.
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383. Columbus Police Officers on bicycles approached the protestors and began to use their bodies as well as their bicycles as weapons against the protestors, physically assaulting the peaceful protestors.
384. Ms. Wise was standing there at the intersection of Broad and High as Columbus Police Officers began pepper spraying the peaceful protestors.
385. As some people dispersed, Ms. Wise was standing next to a Black woman who was being pepper sprayed and attempted to shield her.
386. While attempting to protect her fellow peaceful protestor, Ms. Wise was assaulted by a Columbus Police Officer who used the space in between his thumb and index finger to press his hand into her throat and push her back.
387. Near the same time, Ms. Wise was being assaulted by a Columbus Police Officer who was pushing his bicycle into her and others.
388. Ms. Wise and others fell to the ground and Columbus Police Officers continued pepper spraying them as they lay there attempting to cover themselves.
389. Columbus Police Officers then pulled out a vial of a brown liquid that they began pouring into the eyes and faces of Ms. Wise and others.
390. Ms. Wise suffered bruising across her arms and legs in addition to injuries suffered from the pepper spray and the unknown substance. V. CLAIMS FOR RELIEF
A. First Count: Violation of Fourth and Fourteenth Amendment Rights 391. Paragraphs 1 through 390 above are realleged and incorporated herein.
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392. By using excessive force, Defendants Sergeant and Officers violated the privacy and bodily integrity protected by the Fourth and Fourteenth Amendments of one or more Plaintiffs.
393. By their deliberate indifference to the policies, training, supervision, and discipline needed to prevent police officers and mutual aid law enforcement personnel from using excessive force in circumstances similar to those involving the protests, Defendants City of Columbus and Chief caused the deprivation of civil rights and injuries to one or more Plaintiffs and thereby violated the Fourth and Fourteenth Amendments.
B. Second Count: Violation of First and Fourteenth Amendment Rights 394. Paragraphs 1 through 390 above are realleged and incorporated herein. 395. By punishing one or more Plaintiffs for assembling and exercising their freedom of expression and attempting to discourage assembly and expression of Plaintiffs and other protestors, Defendants Sergeant and Officers violated their rights under the First and Fourteenth Amendments. 396. By their deliberate indifference to the policies, training, supervision, and discipline needed to prevent police officers and mutual aid law enforcement personnel from retaliating against speakers and speech they hated, Defendants City of Columbus and Chief caused one or more Plaintiffs to be punished for assembling and exercising their freedom of expression and caused the officers’ attempt to discourage assembly and expression of one or more Plaintiffs and other protestors, and thereby violated the First and Fourteenth Amendments. C. Third Count: Gross Negligence 397. Paragraphs 1 through 390 above are realleged and incorporated herein. 398. By their willful, wanton, and reckless acts or omissions, including but not limited to, using excessive force, punishing protestors for their assembly and speech, seeking to discourage protestors, and/or failing to adopt effective policies or adequately train, supervise,
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and discipline police officers, Defendants Chief, Sergeant, and Officers committed gross negligence in dereliction of their duty to preserve and protect the citizens and residents of the City of Columbus.
D. Fourth Count: Battery 399. Paragraphs 1 through 390 above are realleged and incorporated herein. 400. By their willful, wanton, and reckless acts or omissions, including but not limited to, engaging in, authorizing, and ratifying excessive force and unlawful arrest and seizure, Defendants Chief, Sergeant, and Officers committed battery under the common law of the State of Ohio. E. Fourth Count: Malicious Prosecution 401. Paragraphs 1 through 390 above are realleged and incorporated herein. 402. By initiating criminal prosecutions against when there was a lack of probable cause for criminal prosecution by falsely concocting such cause and depriving Plaintiffs Nadia Lynch and Demetrius Burke of liberty before the prosecution was resolved in their favor, Defendants Kanode and Kirby, acting with ill will toward protestors and the protest, violated Ms. Lynch’s and Mr. Burke’s rights under the Fourth and Fourteenth Amendments and the common law of the State of Ohio. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand judgment against the Defendants, jointly and severally, a. declaring that they have violated their civil rights and/or Defendants Chief, Sergeant, and Officers have been grossly negligent toward them and/or one or more Defendants Officers maliciously prosecuted them;
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b. ordering such equitable relief as will make them whole for Defendants’ unlawful

conduct and ensure prospectively that they are protected from future similar conduct; costs; and

reasonable attorneys’ fees;

c. awarding compensatory and, against Defendants Chief, Sergeant, and Officers,

punitive damages in excess of $25,000; and

d. granting such other relief as the Court may deem appropriate.

OF COUNSEL: Louis A. Jacobs (002101) (LAJOhio@aol.com) 177 19th St., Apt. 9C Oakland, CA 94612 (614) 203-1255 Fax (614) 463-9780

Respectfully submitted,
By: /s/ Edward R. Forman___ Edward R. Forman (0076651) (eforman@marshallforman.com) John S. Marshall (0015160) (jmarshall@marshallforman.com) Madeline J. Rettig (0098816) (mrettig@marshallforman.com) Helen M. Robinson (0097070) (hrobinson@marshallforman.com) Samuel M. Schlein (0092194) (sschlein@marshallforman.com) MARSHALL & FORMAN LLC 250 Civic Center Dr., Suite 480 Columbus, Ohio 43215-5296 (614) 463-9790 Fax (614) 463-9780

Frederick M. Gittes (0031444) (fgittes@gitteslaw.com) Jeffrey P. Vardaro (0081819) (jvardaro@gitteslaw.com) The Gittes Law Group 723 Oak St. Columbus, OH 43205 Phone: (614) 222-4735 Fax: (614) 221-9655
Sean L. Walton (0088401) (swalton@waltonbrownlaw.com)

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Chanda L. Brown (0081076) (cbrown@waltonbrownlaw.com) Walton + Brown, LLP 395 E. Broad Street, Suite 200 Columbus, Ohio 43215 T: (614) 636-3476 F: (614) 636-3453 James D. McNamara (0002461) (psilbach@yahoo.com) 88 E. Broad Street, Suite 1350 Columbus, OH 43215 (614) 464-2770
JURY DEMAND Plaintiffs demand a trial by jury on all issues and defenses triable to a jury.
By: /s/ Edward R. Forman___ Edward R. Forman (0076651)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TAMARA K. ALSAADA; MAHIR ALI;

:

DEMETRIUS BURKE; BERNADETTE CALVEY;:

STEPHANIE CARLOCK; S.L.C., a minor;

:

JENNIFER EIDEMILLER; ANDREW FAHMY; :

TALON GARTH; HOLLY HAHN, BRYAN

:

HAZLETT; JUSTIN HORN; KURGHAN HORN; :

TERRY D. HUBBY, Jr.; RANDY KAIGLER; :

ELIZABETH KOEHLER; REBECCA LAMEY; :

NADIA LYNCH; MIA MOGAVERO; ALETA :

MIXON; DARRELL MULLEN; LEEANNE

:

PAGLIARO; TORRIE RUFFIN; SUMMER

:

SCHULTZ; AMANDA WELDON; and

:

HEATHER WISE,

:

:

Plaintiffs,

:

:

v.

:

:

THE CITY OF COLUMBUS; CHIEF THOMAS :

QUINLAN, in his individual and official capacities; :

SERGEANT DAVID GITLITZ, in his individual :

and official capacities; OFFICER SHAWN DYE, :

in his individual and official capacities; OFFICER :

MICHAEL ESCHENBURG, in his individual and :

official capacities; OFFICER THOMAS

:

HAMMEL, in his individual and official capacities; :

OFFICER HOLLY KANODE, in her individual :

and official capacities; OFFICER KENNETH

:

KIRBY, in his individual and official capacities; :

OFFICER FRANKLIN LUCCI, in his individual :

and official capacities; and JOHN and JANE DOE, :

Nos. 1-30, in their individual and official capacities, :

:

:

Defendants.

:

Civil Action No. 2:20cv3431 CHIEF JUDGE MARBLEY MAGISTRATE JUDGE JOLSON
JURY DEMAND ENDORSED HEREON

FIRST AMENDED COMPLAINT

I. Preliminary Statement

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1. On May 25, 2020, the killing of George Floyd, who was being arrested for allegedly passing a counterfeit $20 bill to buy cigarettes, by then Minneapolis Police Department Officer Derek Chauvin was live-streamed over the Internet for eight minutes and 46 seconds and later televised around the world.
2. Starting on May 28, 2020, in Columbus, Ohio, Plaintiffs, along with hundreds of thousands in cities, states, and countries, took to the streets to demonstrate against excessive use of force by police, saying the names of Black men and women who had recently been killed by police or vigilantes; chanting that “Black Lives Matter,” “No Justice, No Peace,” “I can’t breathe,” “Hands up, Don’t Shoot,” and “Whose Streets? Our Streets”; and expressing their outrage at the militarization of police forces, the disparate impact on minority communities of law enforcement priorities, and a pattern or practice of governments at all levels tolerating systemic racism and failing to adopt effective policies or implement adequate training, supervision, and discipline of law enforcement officers.
3. Plaintiffs and other demonstrators in Columbus comprised a multi-racial group, informally brought together by Black community leaders and activists primarily through the use of social media and dedicated to nonviolent protest, including civil disobedience of traffic, parade, and mass-gathering regulations, to generate urgent widespread public attention to the historic and continuing police violence directed overwhelmingly at communities and people of color condoned by mostly White police supervisors and administrators.
4. The goals of Plaintiffs and other demonstrators included engendering serious, effective, and immediate actions to bring a halt to the endemic racism infecting America’s law enforcement and justice systems and the general tolerance of excessive force routinely administered by police officers against arrestees, regardless of innocence or guilt, and especially against citizens who question an officer’s actions.
5. On May 28, 2020, Plaintiffs and other demonstrators in Columbus exercised their rights of assembly and expression by gathering downtown.
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6. Defendants Sergeant and Officers were angered by the civil disobedience they observed, the message of the protests, and the criticisms and denunciation they heard.
7. Defendants Sergeant and Officers had received minimal and ineffective training from Defendants City and Chief and were subject to vague, ineffective, and rarely enforced policies regarding the need to handle protesters without using force or using the least amount of non-lethal force necessary.
8. Defendants Sergeant and Officers instead responded to the protests with excessive use of force, including kettling, pepper spraying, tear gassing, smoke bombs, and assaulting with physical force, sonic cannon, batons, horses, bicycles, and rubber and wooden bullets, or bean bag rounds and flash-bang grenades against nonviolent protestors who were standing in the streets, from which vehicular traffic had already been blocked and eliminated by police, or on sidewalks, chanting, and holding signs and posing no threat of violence or property destruction, typically without giving audible warnings to their targets, and targeting clearly-identifiable journalists, medical assistants, and legal observers who were there peaceably to assist protestors.
9. Defendants Sergeant and Officers either criticized, often profanely, the protestors for their chants, signs, and civil disobedience or heard, without commenting, other Officers do so while using excessive force.
10. Defendants Sergeant and Officers purposely used excessive force to punish one or more Plaintiffs and other demonstrators, to deter them from continuing to protest and others from joining a protest with which they disagreed, and to reclaim the streets.
11. Defendants Sergeant and Officers maliciously prosecuted one or more Plaintiffs to punish them and deter other demonstrators from continuing to protest and some purposely covered their names and badge numbers with tape to avoid being identified when they used excessive force or retaliated for speech they resented.
12. Just the month before, Defendants had exercised restraint when demonstrators, some of whom openly carried weapons and engaged in hate speech while violating statewide
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social-distancing and mask mandates, protested the COVID-19 lockdown at and around the Statehouse.
13. Despite the excessive use of force earlier on May 28, 2020, the overwhelming majority of the demonstrators remained nonviolent, fled from the toxic chemicals, and left, sought medical assistance, or tried to regroup at a safe distance.
14. After Defendants needlessly escalated and provoked protestors, there were sporadic incidents of property destruction or harassment of law enforcement officers by throwing objects, but none of these actions caused serious injury to officers, and none of them was committed by or reasonably could have been attributed to the Plaintiffs and other nonviolent demonstrators.
15. After Defendants had escalated their force against non-violent protestors, triggering property destruction by others, they authorized more police and mutual-aid law enforcement personnel to use greater force against the remaining demonstrators, who were injured even though the overwhelming majority of them were not engaged in any violence toward police or property destruction.
16. On May 29 and 30, a similar dynamic occurred; a curfew from 10:00 p.m. to 6:00 a.m. was imposed on May 30; and public indignation at the broadcasts on social media and local and national television of the demonstrations and reports and pictures or video sent to reportcpd@columbus.gov ultimately convinced the Columbus Mayor, who had initially falsely described what had been happening and excused the police use of force, to limit the use of tear gas and, on June 1, 2020, denounce excessive force by police officers.
17. Plaintiffs have suffered injuries to their civil rights and their bodies, and they reasonably expect to exercise, and are unwilling to refrain from exercising, their fundamental rights to assemble, protest, travel, and live freely within and around Columbus in the future.
18. Plaintiffs seek declaratory and injunctive relief; compensatory damages for injuries; punitive damages from Defendants Chief, Sergeant, and Officers; and attorneys’ fees
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and costs for violations of their Fourth and Fourteenth Amendments rights to be free from excessive use of force and malicious prosecution; their First and Fourteenth Amendments rights to peaceably assemble and exercise freedom of expression; and/or their Ohio common-law right not to be battered or maliciously prosecuted and/or injured by the gross negligence of police officers, and/or their Ohio statutory right to recover damages inflicted by a criminal act caused by the failure of Defendants City of Columbus and Chief to adopt effective policies and adequately train, supervise, and discipline police officers. II. Jurisdiction and Venue
19. This Court has jurisdiction over this action by virtue of 28 U.S.C. §§ 1331 (federal question); 1343 (civil rights); and 1367 (supplemental jurisdiction).
20. Declaratory, equitable, and injunctive relief is sought pursuant to 28 U.S.C. §§ 2201; 2202; 42 U.S.C. § 1983; and the common law of the State of Ohio.
21. Under 42 U.S.C. § 1983 and the statutory and common law of the State of Ohio, compensatory damages may be awarded against all Defendants and punitive damages may be awarded against Defendants Chief, Sergeant, and Officers.
22. Costs and attorneys’ fees may be awarded pursuant to 42 U.S.C. § 1988, Fed. R. Civ. P. 54, and the common law of the State of Ohio.
23. Venue lies in this forum pursuant to 28 U.S.C. § 1391(b) and S.D. Civ. R. 82.1 because the claims arose in Franklin County, Ohio where Defendant City of Columbus is located and operates the Division of Police, headed by Defendant Chief, which empowered Defendants Chief, Sergeant, and Officers to use force. III. Parties
24. Plaintiff Tamara K. Alsaada is an African-American female and a citizen of the State of Ohio residing in Franklin County, Ohio; serves in the position of Lead Organizer for the Juvenile Justice Coalition, a non-profit organization committed to improving Ohio’s juvenile justices system; was the founder and is the Organizing Director of People’s Justice Project, a
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non-profit organization organizing working people and people of color to lead the fight for safe, healthy, and equitable lives by opposing mass incarceration, and has facilitated Heal Columbus, a web site focused on restructuring the Division of Police and involving community oversight; has been actively involved in criminal justice reform for more than 15 years; received the 2017 YWCA Women of Achievement award; and has published several books on topics related to her work.
25. Plaintiff Mahir Ali is a 34-year-old, dark-skinned Somali-American male; a resident of Franklin County, Ohio; works as a truck driver; and occupies a leadership position in the local Somali community.
26. Plaintiff Demetrius Burke is an African-American male and a citizen of the State of Ohio residing in Franklin County, Ohio.
27. Plaintiff Bernadette Calvey is a 21-year-old White female, a university student, and a citizen of the State of Ohio residing in Franklin County, Ohio.
28. Plaintiff Stephanie Carlock is a 21-year-old White female; graduated from The Ohio State University in December 2019; worked for Defendant City as an employee of the Columbus Women’s Commission before she was indefinitely laid off due to the COVID-19 pandemic; currently works full-time at a Columbus nonprofit organization; and is a citizen of the State of Ohio residing in Franklin County, Ohio.
29. Plaintiff S.L.C. is a minor, suing through his legal guardian, Plaintiff Justin Horn; a cousin of Plaintiff Kurghan Horn; and a citizen of the State of Ohio residing in Hamilton County, Ohio.
30. Plaintiff Jennifer Eidemiller is a 25-year-old White female; works as a Resource and Communications Coordinator at a Central Ohio nonprofit organization committed to ending sexual violence; and is a citizen of the State of Ohio residing in Franklin County, Ohio.
31. Plaintiff Andrew Fahmy is a 24-year-old Middle Eastern male and a citizen of the State of Ohio residing in Franklin County, Ohio.
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32. Plaintiff Talon Garth is an African-American male and a citizen of the State of Ohio residing in Franklin County, Ohio.
33. Plaintiff Holly Hahn is a White female, age 47, and a citizen of the State of Ohio residing in Franklin County, Ohio.
34. Plaintiff Bryan Hazlett is a White male, age 40, a citizen of the State of Ohio, and a resident of Franklin County, Ohio.
35. Plaintiff Justin Horn is a 44-year-old White male, the legal guardian of his nephew, Plaintiff S.L.C., and father of Plaintiff Kurghan Horn; and a citizen of the State of Ohio residing in Hamilton County, Ohio.
36. Plaintiff Kurghan Horn is a 27-year-old White male, son of Plaintiff Justin Horn and cousin of Plaintiff S.L.C.; and a citizen of the State of Ohio residing in Hamilton County, Ohio.
37. Plaintiff Terry D. Hubby, Jr., is a 31-year-old African-American male and a citizen of the State of Ohio, residing in Franklin County, Ohio.
38. Plaintiff Randy Kaigler is an African-American male and a citizen of the State of Ohio residing in Franklin County, Ohio.
39. Plaintiff Elizabeth Koehler is a 32-year-old White female and citizen of the State of Ohio who resides in Franklin County, Ohio.
40. Plaintiff Rebecca Lamey is a White and Mexican female and a citizen of the State of Ohio residing in Franklin County, Ohio.
41. Plaintiff Nadia Lynch is a White female and a citizen of the State of Ohio residing in Franklin County, Ohio.
42. Plaintiff Mia Mogavero is a White female and a citizen of the State of Ohio residing in Franklin County, Ohio.
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43. Plaintiff Aleta Mixon is a 39-year-old African-American female who is the single mother of four children, employed as a nurse’s aide, and a citizen of the State of Ohio residing in Franklin County, Ohio
44. Plaintiff Darrell Mullen is a White male and a citizen of the State of Ohio residing in Franklin County, Ohio.
45. Plaintiff Leeanne Pagliaro, who is Plaintiff Summer Schultz’s wife, is a 28-yearold White female and a citizen of the State of Ohio residing in Franklin County, Ohio.
46. Plaintiff Torrie Ruffin is an African-American female and a citizen of the State of Ohio residing Franklin County. Ohio.
47. Plaintiff Summer Schultz, who is Plaintiff Leeanne Pagliaro’s wife, is a 32-yearold White female and a citizen of the State of Ohio residing in Franklin County, Ohio.
48. Plaintiff Amanda Weldon is a 24-year-old White female; graduated from The Ohio State University in 2018; works in property management; resides in downtown Columbus in Franklin County, Ohio; and is a citizen of the State of Ohio.
49. Plaintiff Heather Wise is a White female and a citizen of the State of Ohio residing in Franklin County, Ohio.
50. Defendant City of Columbus is a political subdivision of the State of Ohio pursuant to Chapter 2744, Ohio Revised Code; at all times material to this Complaint, the employer of Defendant Chief, Sergeant, and Officers; established policies on and trained, supervised, and disciplined, or failed to do so, its Sergeant and Officers in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and entered into agreements with other entities to provide mutual-aid law enforcement personnel under its general direction.
51. Defendant Thomas Quinlan, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police as its Chief; is being sued in his individual and official capacities; convened Division leadership after the May 25, 2020 killing of
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George Floyd to prepare for mass protests in Columbus; without imposing any enforceable or meaningful restraints on the use of non-lethal force authorized Defendants Sergeant and Officers to use such force; continuously monitored the mass protests starting on May 28, 2020, in Columbus; knew that Defendants Sergeant and Officers had used excessive force; has not provided effective policies and adequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; was a ‘person’ under 42 U.S.C. §1983 who acted under color of law; and provided general direction to mutual-aid law enforcement personnel from other entities.
52. Defendant Sergeant David Gitlitz, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
53. Defendant Officer Shawn Dye, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
54. Defendant Officer Michael Eschenburg, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive
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amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
55. Defendant Officer Thomas Hammel, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
56. Defendant Officer Holly Kanode, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in her individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
57. Defendant Officer Kenneth Kirby, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
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58. Defendant Officer Franklin Lucci, at all times material to this Complaint, was employed by Defendant City of Columbus in its Division of Police; is being sued in his individual and official capacities; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and was a “person” under 42 U.S.C. §1983 who acted under color of law.
59. Defendants John or Jane Doe, at all times material to this Complaint, were police officers whose identities are not currently known; they are being sued in both their individual and official capacities; are employees of the Defendant City of Columbus, Ohio; used or tolerated the use by other officers of an excessive amount of force; received inadequate training, supervision, and/or discipline by or on behalf of Defendant City of Columbus in the use of force during demonstrations and retaliating for speech they opposed and/or resented; and each is a “person” under 42 U.S.C. §1983 who acted under color of law. IV. Facts
A. Societal Background 60. For years, African-Americans have been the victims of police and vigilante use of deadly excessive force, and Plaintiffs and the other demonstrators have said the victims’ names during their protests. 61. Those names include Tamir Rice, a 12-year-old African-American killed in 2015 by a Cleveland Police Officer when the child was carrying a pellet gun; Breonna Taylor, an African-American Emergency Medical Technician, shot eight times on March 13, 2020, by officers of the Louisville Metro Police Department who were executing a no-knock warrant at her residence; Michael Brown, an unarmed African-American teenager, fatally shot in 2014 by a Ferguson, Missouri police officer; Eric Garner, an African-American whose cry, “I can’t
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breathe,” was repeated by George Floyd, fatally choked in 2014 by a New York City police officer who was arresting him for selling loose cigarettes; Philando Castile, an African-American elementary school cafeteria worker shot five times during a 2016 traffic stop by a St. Paul, Minnesota police officer; and Trayvon Martin and Ahmaud Arbery, young African-Americans killed by vigilantes, one of whom was a former police officer.
62. Since the May 28-June 3, 2020 Columbus protests, the list has grown. https://www.cbsnews.com/news/say-their-names-list-people-injured-killed-police-officerinvolved-incidents/
63. While in a handful of cases, discipline had been meted out and prosecutions pursued, most of the police officers were not disciplined, let alone successfully prosecuted; indeed, when George Floyd was killed there had been no police discipline meted out for Breonna Taylor’s death.
64. The widespread dissemination of the May 25, 2020 video of Officer Chauvin killing George Floyd coupled with the killing of Breonna Taylor and the history reflected in those names, caused an eruption of public revulsion about police use of excessive force on African-Americans and other minorities.
65. Social media facilitated the scheduling of demonstrations. B. Defendants’ Preparation for Demonstrations 66. Defendants knew by May 26, 2020, that demonstrations would occur in downtown Columbus. 67. Defendants knew that the group Black Lives Matter would call for such demonstrations.
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68. Defendants knew that Black Lives Matter is an organized movement dedicated to non-violent civil disobedience in protest of incidents of police brutality against AfricanAmericans, which began in 2013 when activists used the hashtag #BlackLivesMatter on social media after the acquittal of George Zimmerman in the shooting death of African-American teen Trayvon Martin in February 2012, and was nationally recognized for street demonstrations following the Brown and Garner deaths.
69. Defendants City and Chief monitored social media communications to and from Black Lives Matter and were aware, before the evening of May 28, 2020, that Black Lives Matter was encouraging a non-violent protest in Columbus.
70. Many of the Plaintiffs and other protestors were affiliated with, identified with, and/or inspired by the Black Lives Matter movement, dressing in clothing with the group’s name or initials, and using chants, such as “Black Lives Matter”; “I Can’t Breathe”; “No Justice, No Peace”; and “Hands up, Don’t Shoot,” which were associated with the group.
71. Many Columbus Police Officers and their supervisors, along with some mutualaid law enforcement personnel, nurse an abiding hatred of the Black Live Matters movement, believing that it hurts the image of police and despising the movement’s goals and actions seeking to limit the prerogative of police to use force in any manner and amount they wish.
72. Many Columbus Police Officers and their supervisors, along with some mutualaid law enforcement personnel, resent the chant “Black Lives Matter” and prefer “Blue Lives Matter” and/or “All Lives Matter,” slogans that dismiss and deny the existence and importance of systemic racism in policing.
73. Anticipating the Columbus protests, many Columbus police officers and their supervisors, along with some mutual-aid law enforcement personnel, decided to use their
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assignments to exact revenge on the Black Lives Matter group and chill the exercise of association and freedom of expression by protestors.
74. One tactic used by Defendants City and Chief was to have Columbus Police Officers declare that a peaceful, nonviolent protest in the streets of Columbus had become an emergency and then order the protestors to disperse, using projectile weapons and caustic chemical agents to enforce that order.
75. Defendants City and Chief had adopted a policy, training Columbus Police Officers on that policy, to use that tactic in response to large protests.
76. Failure to disperse when ordered by a law enforcement officer is, under R.C. 2917.04, a minor misdemeanor, unless the order is given in an emergency, when the crime becomes a fourth-degree misdemeanor.
77. Under R.C. 2917.04(B), “Nothing in this section requires persons to disperse who are peaceably assembled for a lawful purpose.”
78. Defendants City and Chief have not emphasized in that policy or training the alternative to use of non-lethal force of citing and/or arresting protestors who do not disperse.
79. Defendants City and Chief have not emphasized in that policy or training a means for Columbus Police Officers to differentiate peaceable assembly for a lawful purpose from an actual emergency.
80. Defendant City’s Division of Police has a history of excessive use of force and other abuses of their authority in response to nonviolent demonstrations and expressive conduct by those with whom police officers and their superiors disagree.
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81. For example, on January 30, 2017, nearly two thousand protestors against the Muslim Ban by President Trump came to the Ohio Statehouse and, after a peaceful rally, began to march south on High Street to the Franklin County Court of Common Pleas.
82. During the march and upon their arrival, protestors overflowed the sidewalks, and, after more protesting, they used the High Street to march back toward the Statehouse.
83. Columbus Police Officers then ordered approximately 300 protestors to disperse. 84. Pepper spray or mace was used to disperse the protestors and gratuitously administered directly in the face and eyes of one or more protestors who were not actively resisting arrest. 85. On June 17, 2017, when Black Lives Matter became involved with a protest at the Columbus Pride Parade, police officers raced to the scene with pepper-spray canisters already drawn. 86. Only weeks later, on July 7, 2017, when protestors with disabilities, many of them in wheelchairs, peacefully occupied Senator Rob Portman’s Columbus office to urge him to vote against a federal health care bill supported by President Trump (who is supported publicly and privately by many police officers because he opposes any form of accountability for police abuses), Columbus Police Officers arrived at the scene, claiming there was an emergency call for assistance, and forcibly arrested the peaceful protestors using excessive force, including knocking over wheelchairs and carrying some protestors with mobility issues out of the building. 87. The following year, on July 11, 2018, Stephanie Clifford (also known as Stormy Daniels), the adult film star who was paid hush money by President Trump to conceal an affair, visited a Columbus strip club on a publicity tour embarrassing to the President, and several Columbus Police Officers targeted Daniels for arrest because of her status as an anti-Trump
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political symbol and arrested other women working at the club because of their association with Daniels and to cover up their retaliatory motive.
88. Social media message board posts among Columbus Police Officers celebrated the arrests as a blow against President Trump’s critics.
89. In contrast, Columbus Police Officers have peacefully monitored protests and other expressive events in downtown Columbus with whose messages they are neutral or sympathetic, including the recent protests by an overwhelmingly White group at the Ohio Statehouse against COVID-19-related closures, where many protestors were armed with rifles and carried ammunition, and the intense mass protests and public rallies in 2011 by public employee unions (including their own) against the effort to restrict collective bargaining rights.
90. Despite knowing about this history of Defendant City’s Division of Police and the negative feelings towards Black Lives Matter of its officers and their superiors, Defendants City and Chief took no specific precautions against excessive use of force in handling the protests.
91. Defendants City and Chief ensured that Columbus Police Officers were armed with batons, pepper spray, tear gas canisters, sonic cannons, smoke bombs or grenades, flashbang grenades, and/or weapons that could shoot rubber and wooden bullets or bean bag rounds.
92. Defendants City and Chief characterized such weapons as “non-lethal” and encouraged their use as an alternative to Tasers and guns and/or rifles that used regular bullets, despite knowing that these “non-lethal” weapons, while less lethal than officers’ service weapons, still have the potential to cause death or serious injury, especially (though not exclusively) when used without appropriate precautions
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93. The way Columbus Police Officers, Deputies, and mutual-aid law enforcement personnel used such weapons posed a significant risk of serious and harmful bodily injury to nonviolent protestors.
94. Batons are hard, ergonomic sticks designed to inflict pain and, when applied with the usual force, will break bones and cause concussions and internal bleeding.
95. Pepper spray is a chemical compound that irritates the target’s eyes, causing a burning sensation, pain, and temporary blindness; inflicts shortness of breath by burning the target’s lungs; and interferes with breathing by irritating the respiratory system, which, during the protests, was already a concern because of the COVID-19 pandemic.
96. Tear gas canisters contain a chemical weapon, colloquially known as mace, which causes severe eye and respiratory pain, skin irritation, bleeding, and blindness.
97. The use of tear gas in warfare is prohibited by international treaties. 98. Long-lasting effects of tear gas can include development of respiratory illnesses, and the canisters can be delivered with such force that they cause severe bruising, loss of eyesight, and/or skull or bone fractures. 99. Tear gas has also been linked with painful disruptions to the menstrual cycle of female protestors, including a heavier flow at abnormal intervals with more intense cramping, and unexpected spotting by those with IUDs (intrauterine device). 100 Flash-bang grenades, which are also known as stun grenades, are explosive devices that emit both an extremely loud bang, usually with higher decibels than a jet engine at full throttle, and ultra-bright light to disorient their targets. 101. Flash-bang grenades cause temporary blindness and pain to the retina, impaired hearing, and/or disruption of the inner-ear fluid and consequent loss of balance.
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102. Rubber bullets, technically kinetic impact projectiles, are hard rubber or rubbercoated projectiles that can be fired at the same velocity as bullets from standard weapons or riot guns.
103. Rubber bullets are intended to cause pain without serious injury, but they typically cause not only contusions, abrasions, and hematomas, but also bone fractures.
104. Rubber bullets are not designed to be safely shot point-blank or at a target’s head, but it is well known that law enforcement officers often disregard this instruction.
105. Wooden bullets are dowel-shaped rods sliced into projectiles the size of pill bottles to be fired at the same velocity as bullets.
106. Like rubber bullets, wooden bullets are intended to cause pain without serious injury, but they typically cause bone fractures as well as contusions, abrasions, and hematomas.
107. Wooden bullets can also splinter and infect areas where their targets are hit. 108. While wooden bullets are not designed to be safely shot point-blank or at a target’s head, officers frequently do so anyway. 109. Bean bag rounds consist of nylon or other fabric sacks filled with lead shot and fired at high speed from 12-gauge shotguns. 110. Officers are trained to aim for “green” (thigh or leg) or “yellow” (stomach) zones of the body, while avoiding the “red” (face or groin) zone, though they frequently target the head. 111. A bean bag round spreads to hit a one square inch area of the target where it is intended to cause a muscle spasm; however, the bean bag round often causes a fracture or concussion.
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112. Smoke bombs, grenades, or canisters consist of a device loaded with white phosphorus and an internal bursting mechanism.
113. Smoke bombs, grenades, or canisters are typically thrown indiscriminately into or near a group.
114. Upon detonation, a brilliant yellow flame is emitted and produces a large amount of white smoke or phosphorus pentoxide.
115. A chemical irritant can be added to smoke bombs, grenades, or canisters, though the ones used by Defendants appear to have produced pure smoke.
116. The smoke obscures the vision of individuals by creating a fog, irritates eyes, and affects the breathing of individuals nearby the deployed smoke bombs, grenades, or canisters.
117. Sonic cannons, known by the acronym LRAD for “Long Range Acoustic Device,” emit focused soundwaves over a long distance, inflict pain, and can cause permanent or long-term damage to an individual’s hearing.
118. A normal conversation level is 60 dB (decibels), a lawn mower averages 90 dB, the pain threshold for the average person is 103 dB, and an LRAD’s maximum continuous volume is 162 dB.
119. Columbus Police Officers were provided protective ear plugs when sonic cannons were used on protestors.
C. Days and Nights of Police and Deputy Rage 120. Over the course of the demonstrations on May 28, 29, and 30 and June 1, 2, and 3, Columbus Police Officers beat peaceful protestors and bystanders; pepper-sprayed without provocation and at point blank range protestors and observers, including United States Congresswoman Joyce Beatty, City Council President Shannon Hardin, and County
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Commissioner Kevin Boyce; lobbed and/or shot tear gas canisters without provocation; fired rubber or wooden bullets and flash-bang grenades directly at vulnerable body areas of protestors, as truly and accurately reflected in a video posted at https://www.youtube.com/watch?time_continue=5&v=vZaoz9ZRVOc&feature=emb_title and shown below; and targeted identified journalists and individuals providing medical assistance. A true and accurate copy of that video is provided below (double click to play or click the link).
121. The targeting of identified journalists was done to eliminate eye-witness reports and photographs or videos of police engaging in use of excessive force and retaliating against protestors for the content and urgency of their expression.
122. A tactic used by Defendants is “kettling,” where groups of nonviolent protestors are boxed in, typically by using commands, bicycles, horses, and/or lines of police, and moved from one place to another, even though the protestors were unwilling or, due to other protestors or physical barriers, unable to move, and then arresting them for resisting, obstructing, and/or failing to disperse.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 21 of 118 PAGEID #: 103 123. Apart from assembling and chanting or holding signs in the middle of streets or
other locations Defendants wanted them to abandon, these groups of protestors were not violating, as reflected in the true and accurate pictures below, any laws, threatening violence, destroying any property, or hampering traffic.
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124. Another tactic used by Defendants was collective punishment: responding to any action by an isolated individual who threw a water bottle, harassed or taunted an officer, or engaged in property destruction by indiscriminately pepper-spraying or tear-gassing a group of obviously different protestors who had not engaged in any such conduct.
125. The “kettling” and collective punishment created a chaotic situation among the protestors which Defendants then used as an excuse for additional force including using force against protestors who moved to assist others who had been subjected to excessive force.
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126. Defendant Chief knew that such tactics were being used to provoke demonstrators and justify arrests, but he did not intervene to limit their use.
127. To the contrary, Defendant Chief excused the targeting of identifiable journalists by falsely claiming that they had been difficult to identify and force was used in a fast-moving situation where officers were being assaulted, “pelted with bottles and rocks.”
128. The false claims of Defendant Chief to excuse misconduct were intended to be taken by Columbus Police Officers, and were in fact taken, as a form of approval and condonation of their tactics and an invitation to continue and escalate them.
129. Photographs and videos taken at the scene demonstrate that journalists, who were wearing hats and hoodies bearing the name of their newspaper, were targeted even though nothing was being thrown at the police, the protestors were not out of control, and the situation was not fast-moving.
130. The way Defendants Sergeant and Officers routinely pepper-sprayed demonstrators who were not engaging in violent behavior is accurately illustrated by the picture below; a true and accurate depiction of Defendants’ aggressive conduct appears in the video posted at https://www.youtube.com/watch?v=npXL2-NT1Zs, where pepper spray was used on small sections of the protestors and one protestor was punched by Defendant Lucci. A true and accurate copy of that video is provided below (double click to play or click the link):
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© Getty
131. Social media contained first-hand accounts of excessive use of force; for example, https://www.facebook.com/permalink.php?story_fbid=1686026474878930&id=1000041478178
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93 accurately reported about tear gas on May 30, 2020: “I experienced a traumatic event today. I was participating in a BLM protest with hundreds of other people today in downtown Columbus. We were yelling chants & marching around the statehouse on the sidewalks but nothing more as we were told this would be a peaceful demonstration. Then bike cops show up. All of them had gas masks on. People started getting uneasy. A SWAT truck drives by, yelling people to stay off the road. But other than people crossing on the crosswalk, no one was on the streets nor blocking the traffic. More cops on horseback show up. People starts murmuring. More police cars show up & park in the middle of a busy street. Police officers start unloading and gearing up. People were yelling ‘what are you doing? We’re not doing anything wrong!’ First rounds of tear gas goes off in the crosswalk area. People start screaming and yelling others to run. People were coughing and crying from the effects of the gas (there were children & seniors in the group). People were handing out water to those who needed to rinse their face. Another round of gas goes off. This time, ON THE SIDEWALK. Not on the roads, but directly on the sidewalk. People were running, jumping over the fence, falling on the ground & running for their lives. This is when my friend and I were impacted and we had to rinse our faces off with water for several minutes. We decided that it was getting too dangerous and left shortly afterwards. We weren’t attacking the police. We weren’t vandalizing/looting any properties. No protester had weapons on them. So tell me, why did we get maced?”
132. Corroborating that report is a video housed at https://www.youtube.com/watch?time_continue=30&v=AswhNfIjqG4&feature=emb_title, accurately showing the tear-gassing of a group of protestors and police on horseback moving the protestors. A true and accurate copy of the video is provided below (double click to play or click the link).
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133. Reflecting the animus toward medical helpers are two accurate videotapes of Columbus Police Officers on May 30, 2020, chasing a clearly-marked medic down an alley where she had gone to help a protestor; the first posted on Twitter, (1) https://twitter.com/OncoKaty/status/1266816739444166656?ref_src=twsrc%5Etfw%7Ctwcamp %5Etweetembed%7Ctwterm%5E1266873339542470656&ref_url=https%3A%2F%2Fwww.col umbusnavigator.com%2Fcolumbus-police-protests%2F by Katy@OncoKaty asks, “Tell me, @ColumbusPolice what part of this is protect or serve? We were treating people in an alley and you gleefully chased us and sprayed another medic from a distance of inches and LAUGHED about it. #columbusprotest #ColumbusOhio,” with the second posted on Twitter, (2) https://twitter.com/SAColumbus/status/1266867613872857094, with the message: “Yet another disgusting example of what Ginther shamefully called ‘exceptional restraint’ - a Columbus PD officer point-blank spraying a street medic who is trying to help another protester screaming in pain (out of frame). #BlackLivesMatter #columbusprotest #georgefloyd. True and accurate copies of both videos are reflected below (double click to play or follow the links).
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134. One

May

30,

2020

video,

posted

at

https://twitter.com/lalaitskelcey2/status/1266821476122058752 by @lalaitskelcey2, accurately

“shows Columbus police macing a woman as she walks away from them. Absolutely

disgusting.” A true and accurate copy of that video is reflected below (double click to play or

follow the link).

135. The true and accurate copy of the picture below, which was posted by KRobPhoto, gives a sense of how Columbus Police Officers used pepper spray to punish, here on May 30, 2020, walking up to a protester and spraying her in the face for being on South High Street while Congresswoman Beatty was nearby:
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136. Columbus Police Officers pushing and pepper spraying protestors on the other side of a barrier on May 28, 2020, is accurately depicted at https://www.youtube.com/watch?time_continue=26&v=npXL2-NT1Zs&feature=emb_title. A true and accurate copy of that video is provided below (double click to play or click the link).
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137. The earlier portion of the nonviolent protests on May 28, 2020, is accurately depicted in the video at https://youtu.be/AB6LmkmLnUI which shows peaceful protestors sitting in the middle of a street when a phalanx of Columbus Police Officers on bicycles suddenly and without warning pepper spray them. A true and accurate copy of that video is provided below (double click to play or click the link).
138. On May 29, 2020, Columbus Police Officers walked their bicycles, used them to block off a group of protestors, and then pepper-sprayed protestors, as accurately depicted on the
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video at https://www.youtube.com/watch?v=thjbZhftL_A. A true and accurate copy of that video is provided below (double click to play or click the link).
139. In addition to the injuries described below that each Plaintiff suffered from being mistreated by Columbus Police Officers, all plaintiffs suffered fear, frustration, anger, emotional distress, and/or humiliation, as a proximate cause of being mistreated.
D. Defendants City and Chief Knew of the Need for Effective Training, Supervision, and Discipline to Curb Police Use of Excessive Force and Retaliation for Associations or Expression Officers Hated.
140. According to the police tracking website https://mappingpoliceviolence.org, during the years 2013 through 2019, Columbus Police Officers killed at a rate of 7.3 per 100,000 residents, which was the highest rate of any department in the State of Ohio and more than double the rate in Cleveland, Ohio.
141. During that period, Columbus Police Officers killed 27 African-Americans, including in 2016 Henry Green, age 23, who was killed by plainclothes officer in the predominantly Black neighborhood of South Linden, and three months later, 13-year-old Tyre King.
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142. African-Americans make up 28% of the population of the City of Columbus, but during that period constituted half (varying between 49% and 53% since 2013) of the use-offorce incidents.
143. Defendants City and Chief were aware of these statistics and, while claiming to believe that most of the individual uses of force were justified, still knew Columbus Police Officers were engaging in a troubling pattern of mistreating African-Americans.
144. Despite this knowledge, Defendants City and Chief did not take specific steps to address what appeared to be mistreatment of African-Americans.
145. In order to become a Columbus Police Officer, applicants need only have a high school diploma or GED, be 20 years of age or older, have a valid driver’s license, and be a U.S. citizen.
146. Upon hire, Columbus Police Officers receive an initial salary of $58,947.20 per year, which steadily increases over their first four years of service, with officers who have worked for the Division for more than 48 months receiving an annual salary of $90,230.40.
147. In addition to their salary, Columbus Police Officers receive a generous benefits package which includes paid training, college tuition reimbursement, life insurance, individual and family health insurance, vision and dental plans, and a significant pension package through the Ohio Police and Fire Pension Fund.
148. In addition to pay and benefits, Columbus Police Officers have the option to provide security and traffic control services, usually referred to as “special duty pay,” at the rate of $54.00 per hour, which services are a condition for a parade permit and outdoor events and are typically provided by Columbus Police Officers.
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149. The training received by Columbus Police Officers is based on the notion that being a police officer is an extremely dangerous profession, and stresses their security and safety above all else, especially their ability to use force whenever they feel threatened or perceive a threat to another.
150. Although being an actual patrol officer is a relatively dangerous profession, with average deaths of 13.7 per 100,000 employees, according to the Bureau of Labor Statistics, it is nowhere nearly as dangerous as common occupations such as roofers (51.5), farmers (24.7). truck drivers (26.0), and groundskeepers (18.6); indeed, with fatal injuries in the amount of 44.3 per 100,000, trash and recycling collectors’ jobs are more than three times as dangerous as a patrol officer’s job.
151. A reliable 2020 study demonstrates that only 4% of a police officer’s time is generally spent on handling violent crime. https://www.nytimes.com/2020/06/19/upshot/unrestpolice-time-violent-crime.html
152. Defendant City has resisted appointing a civilian review board for police officer activities; instead, all citizen complaints against officers are handled by the Columbus Police Division’s Internal Affairs Bureau.
153. The Internal Affairs Bureau routinely dismisses citizen complaints against its officers as unfounded, almost always believing the statements of officers over that of citizens.
154. The Internal Affairs Bureau is motivated to dismiss citizen complaints as unfounded because finding against the Officer or Officers might subject the City to civil liability.
155. Even when citizen complaints of violence are sustained, over the years the Columbus Police Division has meted out disproportionately minor discipline for violent acts, such as written reprimand and short suspensions.
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156. In turn, this custom of failing to discipline establishes standards which the union for Columbus Police Officers invoke to persuade arbitrators to reverse serious discipline as inconstant with past disciplinary standards.
157. Defendants City and Chief know that it is nearly impossible to fire a Columbus Police Officer for use of excessive force.
158. Per their union contract with Defendant City, Columbus Police Officers are indemnified for any damages (except punitive damages) awarded due to a claim of excessive force, and Defendant City provides free legal representation to officers accused of excessive force.
159. Defendants City and Chief knew before the demonstrations which started on May 28, 2020, that Columbus Police Officers faced little or no disincentive from engaging in excessive use of force and regularly failed to comply with the letter or spirit of training and policies on use of force, handling demonstrations, and retaliating for speech they hated.
160. Within the Columbus Division of Police, it is an unspoken rule that, regardless of whatever violent acts a police officer may witness another officer doing, criminal charges will not be brought against that officer.
161. In the City of Columbus, misdemeanor offenses are prosecuted by the Columbus City Attorney, and felony offenses are prosecuted by the Franklin County Prosecutor’s Office.
162. Both the Columbus City Attorney’s Office and the Franklin County Prosecutor’s Office have an unwritten rule or custom that no criminal charges are to be brought against police officers for acts of violence committed against citizens while in uniform.
163. This unwritten rule or custom applies regardless of the egregiousness of the offense or the strength of the evidence of the officer committing the offenses and reflects, among
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other pressures, a conflict of interest that prosecutors have with relying on police witnesses to prosecute other crimes and not wanting to antagonize them by prosecuting their crimes; the perceived political power of police unions and elected status of the City Attorney and Franklin County Prosecutor; and the barriers victims of acts of violence by police officers confront in reaching grand jurors and, if they have any criminal record or suspicious conduct, persuading trial jurors.
164. Incidents of violence which would cause a regular citizen to be charged with assault, battery, or other crimes of violence are not charged against police officers for the sole reason that they are police officers.
165. It is common knowledge among Columbus Police Officers that, with the possible exception of deadly violence videotaped by citizens, they are immune from any prosecution for acts of violence committed within the City of Columbus.
166. The combination of a toothless disciplinary policy, indemnification from civil liability, and practical immunity from criminal prosecution, creates a perfect storm in which Columbus Police Officers know that there will nearly always be no repercussions to them for violent acts.
167. With regard to all but one recent police killing (a shooting of a White woman by an African-American officer), the Columbus Division of Police did not issue significant discipline for any of the officers involved, and no criminal charges were filed against the officers.
168. For example, in April of 2017, one of the officers who shot Henry Green, Officer Zachary Rosen, was caught on videotape stomping on the head of a handcuffed and helpless African-American suspect who was lying on the sidewalk.
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169. Despite the fact that Officer Rosen had plainly committed an act of felonious assault that could have killed or grievously injured the suspect, the Columbus City Attorney’s Office and Franklin County Prosecutor’s office declined to bring criminal charges against Officer Rosen solely because of the fact he was a police officer.
170. On June 14, 2017, then-Columbus Police Chief Kim Jacobs determined that an appropriate punishment for Officer Rosen stomping on the head of a helpless individual was a 24-hour suspension and recommended this punishment to Columbus Public Safety Director Ned Pettus.
171. In July of 2017, Public Safety Director Pettus rejected the recommendation of Chief Jacobs and terminated Officer Rosen’s employment.
172. Infuriated that one of their members had been terminated for kicking a helpless African-American suspect in the head, the Columbus Fraternal Order of Police (“FOP”) Lodge No. 9 unanimously approved a no-confidence vote in Columbus Mayor Andrew Ginther, Public Safety Director Pettus, and then-City Council President Zach Klein.
173. In announcing the no-confidence vote, FOP President Jason Pappas stated: “We want to send the message that we’ve lost faith. It demonstrates to those individuals that we no longer have confidence in their ability to lead. Unless they make significant changes by funding us and staffing us and supporting our officers who are out there day in and day out, that we will not have confidence in their ability to lead us or this city.”
174. In March 2018, an arbitrator rescinded Safety Director Pettus’s termination and reinstated Officer Rosen to his patrol officer position with full back pay.
175. In May 2018, Defendant City paid a $30,000.00 settlement to the individual whose head Officer Rosen had stomped on.
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176. This settlement came from public tax dollars, not from Officer Rosen, and Defendant City provided free legal representation to Officer Rosen throughout the process.
177. To eliminate the pattern or practice of excessive use of force and retaliating for speech they hated by Defendant City Police Officers, structural reform, modified policies, and civilian monitoring should, in addition to other policies and practices that may be deemed necessary after further discovery of the facts, include:
a. Creation of a civilian review board empowered, funded, and staffed to receive complaints from individuals who believe they have been the victims of excessive use of force and/or retaliation for their speech; to investigate those complaints; and to recommend discipline which the Director of the Department of Public Safety must mete out absent clear and convincing evidence that the Board based the recommendation on inaccurate facts. b. Prohibition of the use by Defendant City Division of Police and/or mutual aid law enforcement personnel cooperating with the Division of tear gas, rubber or wooden bullets, sonic cannons, bean bag rounds, smoke bombs, grenades, or cannisters, pepper spray, flashbang grenades, kettling, chokeholds, strangleholds, no-knock warrants, and pressure or weight on the neck, back, or hip of a prone suspect. c. Maintenance of body and vehicle cameras in good working order and use of those cameras during any interaction with a civilian. d. Prominent display of badge numbers and/or identity cards whenever a police officer interacts with the public.
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e. Recognition that individuals legitimating displaying “press,” “media,” “reporter,” “paramedic,” “medic,” “legal observer,” or similar words and/or symbols are permitted to be present in a position enabling them to observe and record at protests and/or to intervene to assist individuals who appear to have been injured and that all individuals, regardless of their occupation or non-violent activity, are permitted to record at protests or whenever an police officer interacts with the public. f. Commitment to affirmative action in recruitment, selection, retention, and promotion to ensure that, at all ranks, minority officers have more than a token presence. g. Training and adoption of policies on the use of batons, Tasers, firearms, and physical force that emphasize use of the least force necessary and then only after de-escalation and disengagement have been attempted, a clearly understood oral warning given, and a purpose other than punishing the target exists, with deadly force as the very last resort after other efforts to prevent serious bodily injury or death have been exhausted, and, unless imminent serious bodily injury or death is reasonably perceived, never to prevent flight or property damage, and expose how stereotyping, implicit bias, and racism affect an officer’s perception of an individual and the level of threat that individual poses. h. Contracting with and/or employing unarmed intervention specialists required to be used in responding to calls involving intoxication, drug use or abuse, mental health crises, teenagers or children, vandalism, and/or the homeless.
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i. Mandating that (i) any officer who witnesses what he or she believes in good faith to be an excessive use of force or retaliation must stop or attempt to stop another officer from that use of force or retaliation and report in detail within 24 hours that conduct to both the Division Chief and the Internal Affairs Bureau, and explain what steps the officer took to intervene in use of force or retaliation; and that (ii) any officer who uses force must prepare and file with superiors an incident report within eight hours detailing the amount of force used, his or her perception of the justification for that force to be used, the known or suspected injury to the suspect, the witnesses to that use of force, and any recordings from body and vehicle cameras, cell telephones, and/or other surveillance cameras. j. Inventory of Division equipment, assessing which equipment is more appropriate for use by the military during war than by police officers, and discarding such equipment. k. Screening applicants to determine whether they have been suspected of using excessive force in employment, military, and/or social settings and either affirmatively ensure that the suspicion was unfounded or reject the applicant, and re-screen officers every three years for psychological fitness. l. Documenting each suspected use of excessive force by an officer; placing a copy of the suspicion, investigation, and resolution in the officer’s file and preserving for ten years in a separate file the original or an electronic counterpart along with exhibits, drawings, recordings, and other evidence; making the entire file available to the Civilian Review Board and any prospective employer; and
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considering the entire file in making retention, assignment, and/or promotion decisions. m. Engaging in focused deterrence of serious crime by analyzing the specific blocks in neighborhoods and known individuals who have engaged in criminal activity and can reasonably be anticipated to do so again and allocating enforcement priority and referrals for social services accordingly. n. Scheduling meetings in predominantly minority neighborhoods to listen to civilian concerns; to acknowledge that past law enforcement practices, starting with the roots of modern policing in Southern States as slave patrols and later the enforcement of Jim Crow segregation, proceeding through acquiescence in lynching, racist mobs, and/or Ku Klux Klan activities, and culminating in the disproportionate focus on minorities in the war on drug use and abuse and related traffic stops, have created a rift which must be healed; and to discuss steps which might contribute to that healing. o. Payment for individual officers to have professional liability insurance but then requiring an officer to pay any premium increase attributed to that officer’s improper use of force and/or retaliation and conditioning continued employment on being insured. p. Appoint and pay for the employment of an independent monitor to oversee and ensure the successful implementation of the above steps. E. Mistreatment of Plaintiff Tamara K. Alsaada
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178. On May 30, 2020, Ms. Alsaada, in her position as Organizing Director for the People’s Justice Project, showed up to a Black Lives Matter rally organized in front of the Ohio Statehouse with the goal of helping to lead the rally and to advocate for police reform.
179. Ms. Alsaada did not plan the event; however, given her role in the community she was looked at to help provide a voice for the event.
180. While Ms. Alsaada and other members of the People’s Justice Project were speaking on the microphone, protestors at the rally came to Ms. Alsaada and informed her that protestors were being arrested by Columbus Police Officers without justification.
181. Again, due to her role as a respected community organizer, even serving on Mayor Ginther’s Community Safety Advisory Commission, Ms. Alsaada and others walked over to the intersection of Broad and High to help resolve any pending conflicts.
182. Ms. Alsaada saw Deputy Chief Michael Woods standing near the intersection, who she knew from her time on the Mayor’s Community Safety Advisory Commission.
183. Ms. Alsaada noticed there were lines of police officers at the intersection on bicycles, on horseback, and in riot gear.
184. Ms. Alsaada asked Deputy Chief Woods who was being arrested, and he informed her that no one was being arrested.
185. Ms. Alsaada asked Deputy Chief Woods to have the officers clear a path so that she could walk through and continue to address the topic of arrestees, and he subsequently had the officers allow her through.
186. As Ms. Alsaada and others walked through the line of officers in order to continue peacefully discussing any arrestees, Columbus Police Officers without notice, without any
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warning, and without any provocation, began to assault Ms. Alsaada and others with an onslaught of pepper spray.
187. Ms. Alsaada fell to the ground due to the assault and was unable to breathe or see. 188. Ms. Alsaada was carried to the corner of Broad and High where she was administered medical attention by volunteer medics. 189. Ms. Alsaada and numerous others suffered injuries and trauma due to the unprovoked assault by Columbus Police Officers. F. Mistreatment of Plaintiff Mahir Ali 190. On May 30, 2020, Mr. Ali was peacefully protesting police brutality and racial injustice in Downtown Columbus, near the intersection of Cleveland Avenue and Broad Street. 191. As Mr. Ali was involved in the peaceful protest, Columbus Police Officers formed a line and began moving towards Mr. Ali and other protestors. 192. A Columbus Police Officer singled out and targeted Mr. Ali by approaching him and attempting to pepper spray him. 193. Mr. Ali was able to evade most of the pepper spray and, as he did, he yelled out, “Hands up! Don’t shoot!”, repeatedly in an attempt to avoid becoming the victim of any police brutality. 194. Mr. Ali then noticed one Columbus Police Officer, who appeared to be a supervisor or commanding officer, instruct another officer to shoot Mr. Ali. 195. That officer then aimed at Mr. Ali and shot him in the left leg with a rubber bullet. 196. After getting shot, Mr. Ali was able to gather himself and found a parked car that he then used to shield and protect him from the Columbus Police Officers who had targeted him.
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197. While hiding behind this parked car, Mr. Ali witnessed Columbus Police Officers shoot two other peaceful protestors, a male and a female, who happened to be riding bikes.
198. Mr. Ali continued to hide and protect himself while he witnessed Columbus Police Officers attack other protestors.
199. Mr. Ali was able to call his wife and, after approximately 15 minutes, Mr. Ali’s wife was able to locate and rescue him.
200. Mr. Ali then went home and attempted to treat his bruises and muscle aches. G. Mistreatment of Plaintiff Demetrius Burke 201. On Wednesday, June 3, 2020, late at night, Mr. Burke was inside his apartment near the intersection of East Starr Avenue and North 9th Street when he heard sirens and a commotion outside. 202. Mr. Burke’s motorcycle was then parked in his apartment complex’s parking lot. 203. Because he was concerned that whatever was going on outside would cause damage to his motorcycle, Mr. Burke went outside to get his motorcycle and move it to a garage provided by his apartment complex. 204. When he reached his motorcycle, Mr. Burke observed police officers walking north on North 9th Street and decided to ask the officers what was going on. 205. Because he is an African-American male, Mr. Burke was concerned that the police would act violently towards him and so he turned on his cellphone camera and filmed as he approached the officers. 206. Mr. Burke was aware that the City of Columbus had imposed a 10:00 p.m. curfew on all residents in public areas and so he was careful to remain on his own property and not step into the street while approaching the Columbus Police Officers.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 44 of 118 PAGEID #: 126 207. Mr. Burke’s cellphone video clearly shows that he remained on the grass at all
times and did not enter the street. 208. Below is a true and accurate copy of that video (double click to play or click
20200603_003718.mp4).
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209. When he was within speaking distance of the Columbus Police Officers, Mr. Burke asked, “What’s happening”?
210. A Columbus Police Officer, later identified as Defendant Kenneth Kirby, approached Mr. Burke and answered, “I’m sure you know you’re out after curfew, right?”
211. Mr. Burke responded, “I live right here, I’m on my property.” 212. Defendant Kirby then said, “You’re standing on the street, come here.” 213. Mr. Burke protested that he was “right here, I’m on the grass.” 214. Defendant Kirby then stated that “it doesn’t matter, you’re under arrest” and falsely told another officer that Mr. Burke was standing in the street. 215. An officer then used a zip tie to restrain Mr. Burke’s hands behind his back. 216. Mr. Burke was then transported to a nearby fire station being used to process individuals who had been arrested during the George Floyd protests. 217. From the fire station, Mr. Burke was taken to the Jackson Pike Correctional Center, where he was placed in a cell with other arrested individuals. 218. In the cell where Mr. Burke was detained, there were many individuals who had been arrested for issues not related to the protest, including felonies and violent crimes. 219. During his time in the cell, Mr. Burke witnessed an intensely violent fight, which was terrifying and put him at risk of physical harm. 220. Mr. Burke remained in the cell until early afternoon when his friend posted bail for him. 221. On Tuesday, June 9, 2020, Mr. Burke’s curfew violation charges were dismissed as part of the blanket dismissal of curfew violations. H. Mistreatment of Plaintiff Bernadette Calvey
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222. On May 30, 2020, Ms. Calvey was in the Short North area, accompanied by a roommate.
223. Although Ms. Calvey had not intended to participate in a protest, she and her roommate were walking in the vicinity of Second Avenue and High Street when they heard protestors nearby.
224. They walked in the direction of the protests to see what was going on and potentially join the protest since they agreed with the message against police brutality and racism.
225. Ms. Calvey was aware that there had been a curfew imposed that evening, but it was approximately 9:00 p.m., she was not far from her residence, and the curfew would not start for another hour.
226. As Ms. Calvey approached the protest, it appeared peaceful, though Columbus Police Officers were massed in the street approximately 50 feet away from where she was standing.
227. The Columbus Police Officers were shouting at the protestors and began firing projectiles at them at close range.
228. Within moments of approaching the protest, Ms. Calvey was struck in the face by a projectile that, upon information and belief, was a wooden bullet.
229. The wooden bullet split open her chin and caused excruciating pain. 230. The round that hit Ms. Calvey in the face had been directly fired at her with the intention of hitting her and had not been “skip-fired” as a “knee-knocker” off the ground.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 47 of 118 PAGEID #: 129 231. A true and accurate picture of her injury the morning after is below:
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232. Ms. Calvey and her roommate fled down a side alley, where she received water and bandages from a group of protestors.
233. Ms. Calvey was forced to miss two days of work due to her facial injury and remained unable to chew solid food for approximately a week due to the pain in her jaw.
234. The projectile wound has created a prominent scar on Ms. Calvey’s chin, which appears to be permanent.
I. Mistreatment of Plaintiff Stephanie Carlock 235. In the late afternoon of Saturday, May 30, 2020, near the Statehouse, around Broad and High Streets, Ms. Carlock joined friends who were protesting against police brutality and racism. 236. When Ms. Carlock arrived at the protest, non-emergency traffic had been rerouted, and she and others were standing stationary in the crosswalk across High Street. 237. Many Columbus Police Officers were there dressed in riot gear, but no announcements were made and no orders were given. 238. While Ms. Carlock was standing stationary in the crosswalk, a Columbus Police Officer in riot gear sprayed her in the face with pepper spray at close range with no provocation, causing Ms. Carlock intense pain and affecting her vision. 239. Columbus Police Officers began pushing the crowd of people in which Ms. Carlock was standing with their riot shields and telling them to leave. 240. A van rolled up and many Columbus Police Officers or Franklin County Sheriff’s Office Deputies left the van and began firing projectiles at the crowd.
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241. Ms. Carlock and her companions then moved to the Statehouse lawn, but mounted Columbus Police Officers approached and used their horses to push the crowd out of the Statehouse area.
242. Ms. Carlock moved onto Broad Street and began walking east, with mounted Columbus Police Officers following the crowd and using their horses to push it further down Broad Street.
243. Ms. Carlock and her companions reached the intersection of Broad Street and Fifth Street and were standing on the sidewalk, next to the plaque recognizing the site of the first Wendy’s restaurant.
244. Columbus Police Officers were still pushing the crowd, and Ms. Carlock and others were asking them where they wanted the protestors to go.
245. Instead of answering and directing the crowd, the mounted Columbus Police Officers rode their horses onto the sidewalk and began pushing their horses into the crowd.
246. Ms. Carlock was struck by the legs of horses purposely being ridden into her and other protestors.
247. Ms. Carlock and others in the crowd continued to walk to the next corner, at which point they were confronted by Columbus Police Officers on bicycles.
248. These officers cornered the crowd against a building, on the sidewalk, and deployed tear gas, causing Ms. Carlock to choke and cough and have difficulty breathing.
249. Ms. Carlock and others asked the officers why they were tear-gassing a peaceful crowd on a sidewalk, and, instead of answering, the officers laughed while the protestors choked on the gas.
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251. The following evening, Sunday, May 31, at around 8 p.m., Ms. Carlock and a friend went to the Short North area of Columbus, walking down High Street toward downtown, on the sidewalk, seeking to join another protest against police brutality and racism.
252. Ms. Carlock was aware there was a curfew of 10:00 p.m. that evening, but it was still 40 minutes before curfew (approximately 9:20 p.m.), when the group she was in approached the intersection of High Street and Spring Street.
253. Ms. Carlock and the protestors she had joined were peaceful, walking on the public sidewalk, and not disobeying any orders from law enforcement.
254. As Ms. Carlock neared Spring Street, a black van pulled up and Columbus Police Officers in riot gear jumped out.
255. Without warning, the officers began shooting projectiles and tear gas at the crowd.
256. Ms. Carlock was once again exposed to tear gas, affecting her breathing and causing her to choke and cough.
J. Mistreatment of Plaintiff S.L.C. 257. On May 30, 2020, S.L.C. traveled from Hamilton County, with his uncle, Plaintiff J. Horn, to downtown Columbus, Ohio, where they met his cousin, Plaintiff K. Horn, and his cousin’s girlfriend. 258. Prior to traveling to Columbus, Mr. C. had created hand-drawn signs with “Black Lives Matter” and the names of some of the victims of police brutality. 259. Mr. C. was intending to protest peacefully by holding his hand-drawn signs. 260. Mr. C. and his family joined a group of peaceful protestors.
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261. After being there less than 15 minutes, Mr. C. witnessed Columbus Police Officers throw tear gas canisters at another group of peaceful protestors, and he and Plaintiff K. Horn went over to help the protestors who had been tear-gassed.
262. They moved the injured protestors to a different location because Columbus Police Officers were throwing tear-gas canisters all around the area.
263. In the commotion of helping the other injured protestors, Mr. C. got disconnected from his family and then joined another group of protestors who were walking and carrying signs peacefully.
264. While in the middle of this group of protestors, Columbus Police Officers threw four canisters of tear gas into Mr. C.’s group.
265. The tear gas reached Mr. C.’s eyes, causing a severe burning sensation. 266. There was no one there to offer medical assistance, so Mr. C. ran from the area where he was struck with tear gas, sat down on a sidewalk, and applied water to his eyes until the pain subsided slightly. 267. Mr. C. was able to reconnect with his family and decided to continue his peaceful protest with his cousin. 268. Mr. C. witnessed Plaintiff K. Horn get struck in the leg with a wooden bullet while trying to run from tear gas in the area. 269. Mr. C. observed Plaintiff K. Horn during this entire period, and Plaintiff K. Horn did not act violently or aggressively in any way before being struck. 270. Mr. C. and his uncle, Plaintiff J. Horn, returned home to Hamilton County the evening of May 30, 2020, and did not return again for any protests. K. Mistreatment of Jennifer Eidemiller
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271. On May 30, 2020, in the early evening, Ms. Eidemiller, who resides near where protests were taking place in downtown Columbus, decided to join the peaceful protests against police brutality.
272. Ms. Eidemiller had been protesting with others for around ten minutes when she found herself on Third Street.
273. Ms. Eidemiller began to cross the street legally by remaining in the crosswalk. 274. When Ms. Eidemiller reached the sidewalk, though, she and a group of other peaceful protestors were pepper-sprayed at point-blank range. 275. Ms. Eidemiller’s vision was temporarily impaired, and the pain in her eyes was terrible. 276. The Columbus Police Officer who sprayed Ms. Eidemiller sprayed everyone in the area collectively and indiscriminately. 277. Ms. Eidemiller also witnessed officers on horseback attacking peaceful protestors. 278. Ms. Eidemiller was taken by medics who immediately provided care for her at the scene. 279. After being treated by the medics and given instructions on how to self-treat her injuries, Ms. Eidemiller went home and followed those instructions in order to cope with the effects of the chemical spray on her body. 280. The next morning, May 31, 2020, Ms. Eidemiller returned to downtown Columbus, along with two friends, in order to continue to peacefully protest police brutality. 281. As they approached the scene of protests already taking place, they noticed a group of protestors and organizers in the intersection of Broad and High Streets, near the east side of the intersection.
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282. Ms. Eidemiller proceeded to lock arms with them and chant out calls for justice. 283. Protestors stood there peacefully for approximately 30 minutes. 284. Columbus Police Officers then announced that they would begin using chemical weapons if protestors did not leave the area. 285. As the protestors were attempting to disperse, Columbus Police Officers used various chemical weapons. 286. Ms. Eidemiller was pepper-sprayed three or four times at close range by a Columbus Police Officer. 287. Medics again treated Ms. Eidemiller at the scene and instructed her on how she could deal with the pain, impaired vision, and headache from the chemical spray once she got home. L. Mistreatment of Plaintiff Andrew Fahmy 288. On June 1, 2020, Mr. Fahmy and a friend went to downtown Columbus to participate in the protests. 289. They arrived at the Statehouse at 7:00 p.m. and then participated in a march north on High Street along with several thousand other protestors. 290. Eventually, at approximately 10:20 p.m., the march reached the intersection of Lane Avenue and High Street just north of The Ohio State University. 291. By the time the march had reached Lane Avenue, the number of marchers had dwindled considerably and the march seemed to be coming to an end. 292. As the marchers approached Lane Avenue on High Street, Columbus Police Officers wearing riot gear approached the marchers from the south.
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293. When the Columbus Police Officers were within approximately 15 feet of the remaining marchers, they began spraying pepper spray.
294. The pepper spraying caused the remaining marchers to run in all directions. 295. Mr. Fahmy retreated east on Lane Avenue along with many other marchers. 296. The Columbus Police Officers then formed a line across Lane Avenue approximately 200 feet east of High Street facing east. 297. Mr. Fahmy and other protestors got out their phones and began filming the Columbus Police Officers, who were approximately 20 feet away. 298. None of the protestors were behaving violently or throwing anything at the Columbus Police Officers. 299. Mr. Fahmy then observed the Columbus Police Officers preparing to fire tear gas canisters. 300. Before Mr. Fahmy could move out of the way, the Columbus Police Officers shot tear gas canisters directly into the crowd. 301. Mr. Fahmy was hit in the leg with a canister, which fractured his fibula, causing severe pain, and requiring treatment. 302. True and accurate pictures of his injuries, including an x-ray of the fracture, are shown below.
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M. Mistreatment of Plaintiff Talon Garth 303. On May 31, 2020, Mr. Garth attended a downtown protest of police abuse. 304. In the early evening, along with hundreds of other protestors, Mr. Garth was standing in the street at the intersection of Broad and High Streets. 305. That intersection and several blocks had long been closed that evening to vehicular traffic. 306. While Mr. Garth was standing at the intersection, a Columbus Division of Police Armored Vehicle with the word acronym SWAT painted on the side pulled into the intersection and stopped. 307. After the armored SWAT vehicle stopped, a team of officers disembarked from it. 308. The SWAT officers began to tell the crowd standing at Broad and High Street to move. 309. Prior to the arrival of the SWAT officers, the protest at Broad and High had been peaceful, with no violence or attacks on property. 310. Prior to the arrival of the SWAT officers, protestors at Broad and High had maintained a good relationship with Ohio Highway Patrol Officers stationed at the Statehouse. 311. Because there was no vehicular traffic on Broad or High Streets, there was no reason for the protestors to be removed from the streets. 312. After being told to move, Mr. Garth and more than 100 other protestors close to the SWAT officers sat down on the street in an act of passive resistance. 313. Mr. Garth was then approximately ten feet away from the SWAT Officers. 314. At this point, a few individuals in the back of the huge crowd, who were not among those sitting close to the SWAT officers, threw several water bottles at them.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 58 of 118 PAGEID #: 140 315. It was obvious that the bottles had not been thrown by Mr. Garth or any of the
protestors sitting in front of the SWAT officers. 316. Nevertheless, the SWAT Officers immediately took deliberate aim and began
firing wooden bullets directly into the peaceful seated protestors who were sitting directly in front of them.
317. The wooden bullets were around the size of pill bottles. 318. Mr. Garth was struck by a total of ten wooden bullets, one on each knee, four on his right leg, one on his right thigh, one in the arm, and one in the back of his head. 319. A wooden bullet also struck Mr. Garth in the foot, fracturing his fourth metatarsal bone. 320. True and accurate pictures of his leg and foot injuries are below.
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321. Mr. Garth had to seek medical attention for his fractured foot and has been required to wear a walking boot while it heals.
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322. In addition to breaking his foot, the wooden bullet caused severe lacerations to his shins and other parts of his body, many of which are likely to cause permanent scarring.
323. As a proximate result of his injuries, Mr. Garth has been unable to work since the incident and has suffered significant lost income.
N. Mistreatment of Plaintiff Holly Hahn 324. At approximately 7:30 p.m. on May 30, 2020, Ms. Hahn traveled west from Italian Village towards the protest that was taking place at the intersection of High Street and the I-670 cap. 325. Ms. Hahn’s intention that day was to videotape the interactions of protestors with the police. 326. Around 8:00 p.m., Ms. Hahn arrived at the intersection of High and Russell Streets just as protestors there were being pushed north by Franklin County Sheriff’s Deputies in SWAT uniforms. 327. Ms. Hahn stood on the sidewalk at the southeast side of the intersection and began filming the protestors who were backing up High Street. 328. Shortly after Ms. Hahn began filming, SWAT Officers executed their surrounding maneuver on Russell Street. 329. Ms. Hahn did not hear any order to leave the area. 330. In reviewing the videotape recording she made, Ms. Hahn heard that order; however, the noise and chaos where she was standing rendered it inaudible to her at the time. 331. Ms. Hahn was tackled to the ground, maced directly in the face at close range, and handcuffed.
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332. While Ms. Hahn was handcuffed and blinded on the street, a Columbus Police Officer approached her, told her to look at him, and then stated, “You should be ashamed of yourself. You shouldn’t be here, you should be at home making cookies.”
333. Ms. Hahn was placed in a police wagon for several hours, where her hands were handcuffed behind her back, she was not given water, mace remained on her face, and Columbus Police Officers then transported her to an emergency room where she was examined for a concussion, treated for chemical burns, had her face cleansed and took a shower, and given a CT scan.
334. Ms. Hahn was given a citation for a minor misdemeanor count of failing to disperse by Officer Michael Laird, stating that on the 30th day of May, Ms. Hahn knowingly failed to comply with the order of a law enforcement officer or public official to disperse from the scene of a riot and defining riot as five or more persons participating in a course of disorderly conduct, specifically throwing rocks and bricks at police officers and interfering with another’s arrest.
335. On June 23, 2020, the charge against Ms. Hahn was dismissed. 336. Previously, on May 28, 2020, Ms. Hahn had gone to the protest taking place near the intersection of Broad and High Streets, arriving around 8:30 p.m. 337. Ms. Hahn’s intent in attending the protest was to video the interactions of the protestors and the police, and she paid special attention to individuals who seemed to be in agitated conversations with police officers. 338. Ms. Hahn found herself towards the front of the protest near a police line and filming an African-American female who was being vocally aggressive to a police officer.
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339. While Ms. Hahn was filming, something happened to her right that caught her attention, and she saw a group of Columbus Police Officers quickly move towards the protestors.
340. One Columbus Police Officer knocked her cellphone out of Ms. Hahn’s hand. 341. Nearly simultaneously, another Columbus Police Officer then pepper-sprayed Ms. Hahn in the left side of her face, blinding her in one eye. 342. Columbus Police Officers then grabbed Ms. Hahn by her ponytail and wrist and began to take her to the ground. 343. As Ms. Hahn was going down, out of her right eye she observed a Columbus Police Officer stomping on her phone. 344. While Ms. Hahn was being taken down, the Columbus Police Officer who had her wrist began screaming at her to “turn it.” 345. Because of a prior medical issue, Ms. Hahn’s wrist bones are fused, and she is unable to turn the wrist; however, she was able to partially use the wrist to break her fall. 346. When Ms. Hahn landed on the ground, her fused wrist was partially under her body and a Columbus Police Officer was trying to pull it from under her and yelling at her to turn it. 347. Ms. Hahn attempted to tell the Columbus Police Officer that she could not turn the wrist because it was fused. 348. The Columbus Police Officer then grabbed Ms. Hahn by the ponytail, used it as a handle to slam her face on the ground, and then handcuffed her. 349. After being handcuffed, Ms. Hahn was placed in the back of a police car for three hours.
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350. Ms. Hahn was then released and told that she would be receiving an “indictment” in the mail.
351. Ms. Hahn was never charged with any crime as a result of the events of the evening of May 28, 2020.
352. The pepper spray continued to irritate her eye and the she suffered pain, bruises, and headaches from the physical force used by Columbus Police Officers.
O. Mistreatment of Plaintiff Bryan Hazlett 353. On May 30, 2020, Mr. Hazlett and a friend decided to attend a downtown protest that was occurring near the I-670 Cap over High Street by the intersection of Goodale and High Streets. 354. At approximately 6:30 p.m., Mr. Hazlett and his friend arrived in the Short North and parked near the intersection of High Street and First Avenue. 355. Before heading south to join the protest, Mr. Hazlett and his friend spent time locating another friend who was meeting up with them. 356. After locating the other friend, Mr. Hazlett and his group began walking towards the protest on High Street, which was taking place near the intersection of West Poplar Avenue and High Street, arriving around 8:00 p.m. 357. Upon Mr. Hazlett’s arrival, he observed approximately 20 Franklin County Sheriff’s Deputies forming a line across High Street, took a picture of the line of officers, and a true and accurate copy of that picture is below.
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358. After arriving at the protest, Mr. Hazlett held a sign and participated in chants. 359. Shortly after his arrival, Franklin County Sheriff’s Deputies played a recording telling protestors to leave. 360. Mr. Hazlett took the recording to mean that protestors should get off the street and onto the sidewalk, and he retreated to the sidewalk on the south side of the street. . 361. Unbeknownst to Mr. Hazlett, the Franklin County Sheriff’s Deputies forming the line were SWAT officers assisted by Columbus Police Officers. 362. The SWAT officers were on the scene as part of planned maneuver to surround, attack, and arrest the protestors on High Street. 363. As part of the SWAT team’s plan, coordinated in advance with Columbus Police Division SWAT and officers, the SWAT officers stationed at the I-670 Cap were to advance
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north on High Street, driving the protestors north by showering them with glass from broken windows, directly shooting them with wooden bullets, and spraying them with tear gas and pepper spray.
364. While the SWAT officers were driving the protestors north on High Street, a large number of other SWAT officers were to take up positions east and west of High Street on Russell Street, and, when the protestors on High Street were driven close to Russell Street, the SWAT officers were to come running out on High Street and take the protestors from the rear.
365. As part of the plan, it was decided in advance that all of the individuals trapped in the street were to be targeted by wooden bullets, violently tackled to the ground, and peppersprayed directly in the face, regardless of whether they resisted arrest or posed any danger to the SWAT officers.
366. This plan was not made in the heat of the battle or a split-second decision but was calmly created ahead of time.
367. The Deputies and Officers concocted a pretext for this plan, telling the media that an officer-in-distress call came from protestors allegedly throwing water bottles and rocks at them.
368. The officer-in-distress call had actually been made around 6:30 p.m., two hours prior to the actions of the SWAT team.
369. Defendants determined in advance that they would make no distinction between individuals throwing objects at Columbus Police Officers or mutual-aid law enforcement personnel and those engaged in peaceful protesting, videotaping the events, serving as medics or reporters, and/or residing in the neighborhood.
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370. Franklin County Sheriff’s Office Sergeant Ray DeBolt, whose officers were also involved in the surrounding operation, admitted that he had no idea whether the people surrounded on the street were protestors or rioters: “I can’t tell who’s a protester and who’s a rioter at that point.”
371. Instead of making an effort to determine which individuals had actually engaged in violence towards the police, Defendants decided in advance to inflict group punishment, with all individuals present on the street being shot with wooden bullets, violently tackled, and pepper-sprayed at close range.
372. By May 30, 2020, Defendants had seen videos of Columbus Police Officers engaging in unnecessary violence against protestors, including the assault of a United States Congresswoman; were aware that the Officers were undertrained and incapable of engaging in constitutional crowd control; and took no remedial steps, including reconsidering the weaponry used by the Columbus Police Officers and mutual aid law enforcement personnel cooperating with them.
373. Further, Defendants knew by then that some of Columbus Police Officers and mutual aid law enforcement personnel cooperating with them were incapable of keeping their cool during demonstrations and were prone to violence.
374. Nevertheless, such officers were placed in a position where they would be directly interacting with protestors.
375. Defendants also then knew that Columbus Police Officers were routinely disregarding the requirement that wooden bullets be skip-fired and instead were directly firing them at protestors.
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376. Despite that knowledge, Defendants continued to equip Columbus Police Officers with wooden bullet launchers knowing they would be misused.
377. After Mr. Hazlett had retreated, he observed that SWAT Officers opened fire with wooden bullets at the second-floor windows of buildings along High Street, shattering the windows and causing glass to rain down on Mr. Hazlett and other protestors standing on the sidewalk.
378. The SWAT Officers intended to not only inflict pain on the protestors but also to cause property damage which could be blamed on the protestors and then justify additional use of violence.
379. In order to avoid the falling glass, Mr. Hazlett walked to the curb of the sidewalk. 380. Columbus Police Officers or mutual-aid law enforcement personnel were then marching up the street direct-firing wooden bullets at any protestors they saw, and protestors in the street were being pushed towards Russell Street. 381. Approximately ten of the protestors had been in the middle of the street with sheets of plywood in front of them to block flying wooden bullets. 382. As Columbus Police Officers or mutual-aid law enforcement personnel marched toward them, the protestors picked up their sheets of plywood and began walking backwards north on High Street while using the plywood to block flying wooden bullets. 383. Mr. Hazlett realized as the protestors were being herded towards Russell Street that serious danger lurked, and he began to look around for his friend, a younger female, to tell her that they needed to get out of there right away. 384. When Mr. Hazlett located his friend, she was one of the protestors walking backwards with the sheets of plywood.
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385. Mr. Hazlett then stepped off the sidewalk into the street to get his friend and drag her out of the situation.
386. As soon as Mr. Hazlett left the sidewalk, he was hit in the shin by a wooden bullet.
387. Mr. Hazlett continued into the street, ran up to his friend, and yelled, “We need to get the fuck out of here.”
388. Just as Mr. Hazlett was entering the street, cruisers driven by Columbus Police Officers or mutual-aid law enforcement personnel increased their rate of speed and drove directly toward the group of protestors walking backward, only veering off to the side at the last second.
389. Thinking that they were about to be hit by the cars, the protestors immediately dropped the sheets of plywood and ran north.
390. At just this moment, SWAT Officers hiding on both sides of Russell Street ran onto High Street and attacked both the protestors running from the street and individuals who were on the sidewalk or trying to cross High Street at the crosswalk.
391. Implementing their prearranged plan for group punishment, Columbus Police Officers and/or mutual-aid law enforcement personnel methodically pepper-sprayed fleeing protestors in the face at close range and, while the protestors could not see, other Officers violently tackled the protestors to the ground.
392. To inflict pain and teach the protestors a lesson, SWAT Officers even peppersprayed protestors while they were helplessly restrained on the ground.
393. One particularly excited SWAT Officer launched himself like a bowling ball into a group of individuals crossing High Street, knocking at least three of them to the ground.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 70 of 118 PAGEID #: 152 394. Along with the rest of the protestors in the middle of the street, Mr. Hazlett ran
from the onrushing police cars. 395. As can be seen in the below videos (double click to play or click the links), which
truly and accurately reflect the events, before he had taken more than a couple of steps Mr. Hazlett was pepper-sprayed in the face at point-blank range by an officer as Mr. Hazlett raised his hand in the air. https://www.dropbox.com/s/nr6t9y2ph8yydv7/IMG_0113.mov?dl=0 and https://www.dropbox.com/s/u954qu086ecsn9m/06-052020%20officers%20tackling%20protesters%20in%20the%20Short%20North.mp4?dl=0.
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396. After he was hit by the pepper spray, Mr. Hazlett was completely blinded, staggered forward several steps, and then began to pull up.
397. As the officers from Russell Street ran out to arrest protestors, one officer, later identified as Defendant Columbus Police Officer Michael Eschenburg, Badge Number 2734, hung back awaiting the opportunity to violently attack a protestor.
398. Defendant Eschenburg harbored animosity and anger towards what the protestors stood for and wanted to impress other Columbus Police Officers with his body-slamming a protestor.
399. As is reflected on the video, Defendant Eschenburg waited to target a protestor who had been sprayed in the face with pepper spray and blinded.
400. As Mr. Hazlett stumbled after being pepper sprayed, Defendant Eschenburg observed that Mr. Hazlett had been sprayed in the face with pepper spray and was now a helpless target, and he then lined up Mr. Hazlett for a body slam.
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401. As can be seen in the video, Defendant Eschenburg never attempted a tackle or an arm-bar takedown; instead, he kept himself aligned with Mr. Hazlett’s front.
402. Defendant Eshenburg is a large, muscular man who was fully dressed in protective tactical gear and equipped with both lethal and less-than-lethal weaponry.
403. Defendant Eschenburg had been trained in numerous forms of physical combat. 404. Defendant Eschenburg was among 50 or more SWAT Officers, all as fully dressed, armed, and trained as he was. 405. Mr. Hazlett is considerably smaller than Defendant Eschenburg; was wearing a tshirt, shorts, and tennis shoes; had no combat training; and was completely blinded by pepper spray. 406. As can be seen in the video, after Defendant Eschenburg had lined Mr. Hazlett up, he charged towards him, making no effort to tackle Mr. Hazlett or take him to the ground, and, instead, bent down to hit Mr. Hazlett in his midsection. 407. After hitting Mr. Hazlett in the midsection, Defendant Eschenburg physically picked Mr. Hazlett up in the air and then jumped forward, throwing Mr. Hazlett on his back with Defendant Eschenburg’s full weight on him. 408. As Defendant Eschenburg had planned, Mr. Hazlett’s primary point of contact with the pavement was his back and neck area, and that maneuver easily could have caused a broken neck and permanent paralysis. 409. After being pepper-sprayed and slammed to the ground, Mr. Hazlett was completely disoriented, and he curled up in the fetal position on the pavement. 410. Several Columbus Police Officers then converged on Mr. Hazlett as he was lying in the street.
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411. In response to Columbus Police Officers yelling at Mr. Hazlett to give them his arm, he told them that his arm was injured and that he was blinded.
412. One Columbus Police Officer then kicked or kneed him in the back, and another sprayed him in the face with pepper spray at point blank range.
413. Mr. Hazlett’s hands were then placed in handcuffs and taken to the curb. 414. Columbus Police Officers took Mr. Hazlett to a makeshift police station where he remained for six hours and was then transported to the Franklin County Jail at Jackson Pike. 415. Mr. Hazlett was bleeding, injured, and still covered with pepper spray, and the jail staff at Jackson Pike refused to admit him. 416. After the jail refused to accept Mr. Hazlett, he was taken back to downtown Columbus where he was given a citation for a fourth-degree misdemeanor count of failing to disperse and dropped off on the street. 417. In a great deal of pain from his leg injury, Mr. Hazlett limped through downtown up to the Short North to get his car. 418. On June 16, 2020, the criminal charge against Mr. Hazlett was dismissed. P. Mistreatment of Plaintiff Justin Horn 419. On May 30, 2020, around 5:30 p.m., Mr. J. Horn arrived in downtown Columbus with the intent to peacefully protest police brutality and racial injustice. 420. Mr. J. Horn was accompanied by his son, Kurghan Horn; his nephew, a 16-yearold minor, Plaintiff S.L.C.; and his son’s significant other. 421. After they parked they walked toward the protest.
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422. After being at the protest for about five minutes, which up until Columbus Police Officers’ order to disperse had been peaceful, Mr. J. Horn’s son was tear-gassed and shot with a wooden bullet, and Plaintiff S.L.C. was tear-gassed.
423. Mr. J. Horn walked to where Columbus Police Officers were standing in front of the protestors, and he began videotaping their bombarding protestors.
424. Mr. J. Horn videotaped for approximately an hour. 425. As he started to walk away, Mr. J. Horn was tackled by Columbus Police Officers, and his shoulder was dislocated. 426. Mr. J. Horn screamed in pain and anger at the Columbus Police Officers, and one officer popped his shoulder back into the socket. 427. Columbus Police Officers then pulled Mr. J. Horn’s arm behind his back and handcuffed him. 428. Mr. J. Horn remained in pain and asked for medical care. 429. Columbus Police Officers told Mr. J. Horn that it always hurts when a shoulder is dislocated. 430. For four hours Mr. J. Horn remained handcuffed and in pain. 431. Columbus Police Officers told Mr. J. Horn that he would be released on his own recognizance if he signed away the right to any medical care. 432. Columbus Police Officers transported Mr. J. Horn to a holding facility, speeding up and then quickly braking so that his body bounced around, and he cried out in pain. 433. Ultimately, Mr. J. Horn sought medical care and was diagnosed with a closed displaced fracture of the proximal end of his left humerus. 434. Mr. J. Horn was prescribed a lengthy rehabilitation period which he has started.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 76 of 118 PAGEID #: 158 435. The fracture continues to cause Mr. J. Horn pain; a true and accurate
representation of Mr. J. Horn’s back injury sustained from being tackled by the officers is shown below.
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436. On May 30, 2020, Mr. K. Horn was watching a live-feed on social media and saw Columbus Police Officers indiscriminately throwing tear gas at peaceful protestors.
437. Mr. K. Horn had prior limited first-aid training and felt the need to go to the protests and provide whatever assistance he could.
438. Mr. K. Horn headed to downtown Columbus with his friends and family members, including Plaintiffs J. Horn and S.L.C..
439. They parked near The Garden, a Short North store, on High Street. 440. They began helping individuals who had been tear-gassed and were hurt. 441. They then approached near the front of the protest and witnessed Columbus Police Officers laughing at the protestors. 442. Columbus Police Officers in a vehicle then ordered everyone to disperse and suddenly began throwing tear gas canisters. 443. One of the canisters of tear gas was thrown towards Mr. K. Horn. 444. As Mr. K. Horn picked up the canister to move it away from him, a Columbus Police Officer shot him with an object in the back of his left thigh. 445. Mr. K. Horn started to retreat, and Columbus Police Officers continued to throw tear gas canisters. 446. Mr. K. Horn lost contact with his family and friends in the chaos that ensued. 447. Mr. K. Horn witnessed a Columbus Police Officer grasp a protestor, take her mask off, and then pepper-spray her in the face. 448. Ultimately, Mr. K. Horn was hit by wooden and/or rubber bullets over a dozen times.
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449. Mr. Horn sustained painful injuries to his left thigh from one or more rubber bullets.
450. The picture below truly and accurately reflects the bruise on his thigh caused by one or more rubber bullets.
R. Mistreatment of Plaintiff Terry D. Hubby, Jr. 451. On the evening of May 29, 2020, Mr. Hubby joined the ongoing protests in downtown Columbus. 452. When Mr. Hubby arrived at the protest, the air was already filled with chemical agents, causing a burning sensation in his eyes and on his skin. 453. At approximately 9:00 p.m., Mr. Hubby and his companions arrived at the intersection of State Street and High Street where they stood on the sidewalk at the corner. 454. None of the people with or near Mr. Hubby was doing anything except peacefully protesting, chanting slogans, and observing a large crowd of Columbus Police Officers massed in the street.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 79 of 118 PAGEID #: 161 455. Mr. Hubby had his mobile phone in his hand and was filming the scene at the
intersection. 456. Without prior warning, Columbus Police Officers opened fire on the crowd Mr.
Hubby was in with projectile weapons, including rubber and wooden bullets. 457. A loud announcement was made by the Columbus Police Officers as they opened
fire, stating that crowd control devices were about to be deployed. 458. There was no time between when the announcement and when the projectiles
began to hit the crowd in which anyone could safely disperse or avoid the projectiles. 459. A true and accurate reflection and audio of what occurred was captured on the
video below (double click to play or click the link): https://www.dropbox.com/s/rlzcry9zbhshkcx/IMG_0119%20%281%29.mov?dl=0.
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460. Mr. Hubby was immediately struck by a wooden bullet which broke his kneecap, causing him excruciating pain.
461. Mr. Hubby fell to the ground as additional projectiles continued striking protestors and the area around them on the sidewalk.
462. Mr. Hubby was assisted by other protestors, including one who fashioned a splint, and they carried him away from the area where he had been shot.
463. The other protestors did all of this while attempting to protect Mr. Hubby and themselves from further injury as Columbus Police Officers continued to fire on them.
464. Unable to walk or safely seek medical attention, Mr. Hubby waited for nearly an hour until a friend was able to transport him to Grant Hospital.
465. X-rays administered at the hospital revealed that Mr. Hubby’s kneecap had been shattered and he needed surgery.
466. The next day, May 30, Mr. Hubby underwent knee surgery, and a number of screws and a metal plate were placed in and around his knee.
467. Mr. Hubby was hospitalized for an additional two days. 468. Mr. Hubby is recovering from his severe knee injury and will need long-term rehabilitation to restore his mobility. 469. Mr. Hubby has Type 1 Diabetes, which makes any restriction of blood flow to his extremities dangerous, and he has been informed that his injury and the need to insert the screws and plate in his knee has greatly increased the likelihood that his leg will require amputation in the future. S. Mistreatment of Plaintiff Randy Kaigler
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470. On Thursday, May 28, 2020, at approximately 7:30 p.m., Plaintiff Kaigler was driving through downtown Columbus when he observed a peaceful protest in process near the intersection of Broad and High Streets.
471. Because he believed in the message of the protest, Mr. Kaigler decided to join it, parking his car and proceeding on foot towards the intersection of Broad and High Streets.
472. While walking to the protest, Mr. Kaigler observed a group of Columbus Police Officers standing on Broad Street across the street from the Ohio Statehouse.
473. The Columbus Police Officers observed by Mr. Kaigler did not appear to be engaged in crowd-control activities or carrying crowd-control paraphernalia but rather were milling around a cruiser with ample room in the street to move.
474. When Mr. Kaigler observed the Columbus Police Officers, Broad Street was closed to vehicular traffic and officers and protestors were in the street.
475. The protest was loud but peaceful. 476. Upon seeing the Columbus Police Officers, Mr. Kaigler decided to make a political statement: he walked within approximately five feet of them, stopped and raised his arms in a “hands up, don’t shoot” position and stated to the officers “I can’t breathe.” 477. The “hands up, don’t shoot” gesture originated at protests after the August 9, 2014, shooting of Michael Brown in Ferguson, Missouri, and displayed a common sign of submission which communicated that a suspect was not presenting a threat and, like Brown’s alleged conduct, should not be shot. 478. The statement “I can’t breathe” is a reference to the 2014 killing of Eric Garner and 2020 killing of George Floyd.
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479. The Columbus Police Officers who observed and heard Mr. Kaigler knew the origin and meaning of those phrases.
480. The sun was out, and the area around Mr. Kaigler was well lit. 481. Mr. Kaigler did not have any sort of weapon, and his empty hands were clearly visible to the officers. 482. Mr. Kaigler’s political statement did not cause any alarm or concern about their safety for the group of Columbus Police Officers; indeed, when Mr. Kaigler was pepper-sprayed, the other Columbus Police Officers appeared nonchalant. 483. After Mr. Kaigler made his statement, one of the officers, later identified as Defendant Gitlitz, casually drew a canister of mace or pepper spray and, without audible warning, sprayed Mr. Kaigler directly in the face at point blank range. 484. This true and accurate copy of a photograph posted by @Cheesemaman at https://twitter.com/Cheesemaman/status/1266788762295717888, accurately depicts Defendant Gitlitz pepper-spraying Mr. Kaigler:
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485. After he was sprayed, Mr. Kaigler was blinded, could not breathe, and was in intense pain.
486. Other protestors around Mr. Kaigler assisted him to a first-aid station, where his eyes were rinsed.
T. Mistreatment of Plaintiff Elizabeth Koehler 487. During late May and early June of 2020, Ms. Koehler attended numerous protests in the downtown area of Columbus. 488. Ms. Koehler was often pepper-sprayed as part of a group after Columbus Police Officers demanded that protestors leave the street. 489. On at least six occasions, Ms. Koehler was pepper-sprayed when she was standing on the sidewalk after the streets had been cleared. 490. On May 30, 2020, Ms. Koehler was attending a protest near the intersection of Broad and High Streets. 491. Columbus Police Officers had then established a barricade across Broad Street near Third Avenue, and Broad and High Streets were completely blocked to vehicular traffic around their intersection. 492. Columbus Police Officers wished to use violence against the protestors because they harbored animosity towards the political message of the protestors. 493. To manufacture an opportunity for that violence, throughout the day Columbus Police Officers would periodically move west down Broad Street from their barricade and clear the street of protestors by pepper-spraying them, driving them back to the sidewalks on both sides of the street.
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494. Because Broad Street was blocked off, there was no danger and no reason for Broad Street to be cleared of protestors.
495. In herding the protestors, Columbus Police Officers intended to provoke them into fighting back, which the Officers would then use to justify increased violence.
496. At approximately 5:00 p.m., Ms. Koehler was driven to the sidewalk by Columbus Police Officers using pepper spray as part of their periodic street clearing.
497. Ms. Koehler was then positioned on the sidewalk on the south side of Broad Street in front of the Ohio Statehouse.
498. Broad Street was then completely clear, and Columbus Police Officers had returned to behind their barricade.
499. Ms. Koehler observed a Black female enter the street from the opposite (north) side of Broad.
500. It is part of the ethos of many protestors that White protestors are supposed to place themselves between Columbus Police Officers and Black protestors in the expectation that that Columbus Police Officers are far less likely to use force on White individuals; consequently, Ms. Koehler entered the street intending to place herself between the police and the Black woman.
501. After Ms. Koehler had taken five or six steps into the street, a Columbus Police Officer fired a tear gas canister directly at her, hitting her in the leg.
502. When the tear gas canister was shot at Ms. Koehler, there were no other individuals in her vicinity that could possibly have been a target and an ample clear area in the street for Columbus Police Officers to fire a canister without hitting a person.
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U. Mistreatment of Plaintiff Rebecca Lamey 504. On May 31, 2020, Ms. Lamey, along with two friends, participated in a peaceful protest for hours. 505. At 7:54 p.m., Columbus Police Officers abruptly decided to stop the protest. 506. At that point, Ms. Lamey and other protestors were on their knees, with their hands up, on the sidewalk. 507. Columbus Police Officers ordered the protestors to leave and appeared to be ready to use force against them. 508. Protestors started running in fear of the force, with some getting knocked down and trampled. 509. Ms. Lamey and her two friends hung back to avoid getting separated or knocked down. 510. Ms. Lamey was filming on her cellphone, which she was holding well above her waist, and walking backwards while keeping an eye on her friends. 511. A Columbus Police Officer turned the corner and, without warning, shot a wooden bullet at Ms. Lamey, hitting her hand, knocking the cellphone to the ground. 512. When Ms. Lamey bent over to pick up her cellphone, she was shot four more times; around the same time, her friend was hit by wooden bullet in the back of the head, neck, and upper arm. 513. Based on the location where the wooden bullet hit Ms. Lamey, it must have been directly fired at her, rather than “skip-fired” off the ground. 514. Ms. Lamey and a friend ran to a building half a block away, and he left the stairs there to get some ice for her injury.
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515. Moments after the friend returned with the ice and applied it to Ms. Lamey’s

hand, he screamed, “Get behind the pillar!,” as several unmarked vans approached.

516. The van doors opened and two Columbus Police Officers opened fire with

wooden bullets on Ms. Lamey, her friend, and two others, striking them.

517. A true and accurate video of the moment Ms. Lamey was hit by the wooden

bullets

(double

click

to

play

or

click

the

link

https://www.dropbox.com/s/dmu6uucrkhxmkim/Video.MOV?dl=0) and true and accurate

pictures of the swelling on Ms. Lamey’s hand and wrist and a wooden bullet which had been

fired by Columbus Police Officers are below.

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518. The swelling took so long to go down and the pain remained so bad that Ms. Lamey went to an Emergency Room a few days later, had X-rays, and learned that no bones were broken.
519. Ms. Lamey has not yet recovered the full use of her hand. V. Mistreatment of Plaintiff Nadia Lynch 520. On Saturday, May 30, 2020, at approximately 11:30 a.m., Ms. Lynch was attending the protest at the intersection of Broad and High Streets in downtown Columbus. 521. The intersection had been taken over by Columbus Police Officers, who had formed a box at the intersection with lines of officers facing protestors. 522. The intersection had long been closed to vehicular traffic that afternoon, and many Columbus Police Officers were milling around in the middle of the street.
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523. The Columbus Police Officers facing the protestors were wearing black helmets, black gas masks, and black military style tactical clothing.
524. Ms. Lynch stepped up to greet other protestors on the other side of the police line, taking a photo of other protestors and displaying the sign she had brought to the event.
525. Columbus Police Officers then began forming a line with their bicycles right next to Ms. Lynch, and she realized she was in a bad position.
526. Ms. Lynch then decided to go around and started walking back to her group of friends.
527. Ms. Lynch was grabbed by the backpack she was wearing by Defendant Officer Holly Kanode and thrown down to the ground, causing her head to hit the ground.
528. Three or more officers began to attack Ms. Lynch. 529. Ms. Lynch lay there, while they placed her hands behind her back and zip-tied them. 530. Before using force on her, no officer ever said anything to Ms. Lynch or yelled any commands. 531. All of these events took place in an open, well lit, and relatively calm area. 532. Ms. Lynch did not at any time pose a threat to a police officer or resist arrest. 533. Ms. Lynch was grabbed so quickly that, even if an order had been given to her, she would not have had time to comply with it. 534. Ms. Lynch was then arrested and taken to Jackson Pike where she was slated and spent two hours in jail before she bonded out. 535. Ms. Lynch suffered physical injuries due to the assault and damage to her physical property.
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536. Defendant Kanode had Ms. Lynch arrested for disorderly conduct and resisting arrest and later formally filed those criminal charges, which were dismissed on June 15, 2020, with bond and fees refunded.
537. In order to charge Ms. Lynch with resisting arrest, Defendant Kanode falsely swore, under oath, that Ms. Lynch grabbed an officer and took him to the ground.
538. In addition to her false charges, Officer Kanode further submitted a police report with the ludicrous claim that Ms. Lynch had grabbed an unknown Officer by his riot gear and threw him to the ground.
539. Video footage of the incident conclusively and accurately shows that Ms. Lynch never engaged in any such conduct and that Officer Kanode’s account was a complete fabrication.
540. In order to charge Ms. Lynch with disorderly conduct, Defendant Kanode falsely swore, under oath, that Ms. Lynch had thrown water-filled bottles at police officers.
541. Video footage of the incident conclusively and accurately shows that Ms. Lynch never engaged throwing bottles; a true and accurate copy of the video is shown below (double click to play or click https://www.dropbox.com/s/nr6t9y2ph8yydv7/IMG_0113.mov?dl=0).
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542. When she charged Ms. Lynch, Defendant Kanode was aware that she had used excessive force in arresting her.
543. Defendant Kanode falsified criminal charges to justify and cover up her excessive use of force against Ms. Lynch.
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544. When she falsified charges against Ms. Lynch, Defendant Kanode was aware that being convicted of a charge involving an assault on an officer could lead to significant imprisonment, a large fine, and a debilitating criminal record.
W. Mistreatment of Mia Mogavero 545. On the morning of May 30, 2020, Ms. Mogavero and several friends arrived at the protest against police brutality and racial injustice taking place outside the Ohio Statehouse. 546. Ms. Mogavero and her friends started marching peacefully around Broad and High Streets. 547. Columbus Police Officers started shoving anyone who was close to the intersection. 548. Columbus Police Officers who were on horseback began riding their horses onto the sidewalk, pushing protestors back, and injuring some. 549. Ms. Mogavero observed all of this occurring and witnessed her friend, Ellen “Hana” Abdur-Rahim, get pepper-sprayed at close range. 550. Ms. Mogavero and her friends ran for cover and turned down Pearl Alley, where they noticed medics who were there to assist protestors. 551. As Ms. Mogavero helped Ms. Abdur-Rahim and several other protestors receive medical attention, they noticed approximately ten Columbus Police Officers create a “wall” and begin marching down the alley. 552. Protestors who were being treated and the medics began to leave from the alley. 553. Ms. Mogavero saw a Columbus Police Officer attempt to grab a young Black child who was attempting to move his bicycle which appeared to be stuck.
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554. Ms. Mogavero responded by attempting to help him move the bicycle, and the Columbus Police Officer threw her to the ground.
555. Upon hitting the ground, Ms. Mogavero’s head bounced off the pavement. 556. Ms. Mogavero was then pepper-sprayed by the Columbus Police Officer while she lay there still on the ground, defenseless, unarmed, and suffering from what was later diagnosed as a concussion. 557. Ms. Mogavero’s friend attempted to help her off of the ground, and a Columbus Police Officer pepper-sprayed the friend at close range. 558. As a proximate result of the excessive force, Ms. Mogavero suffered a concussion and chemical burns on her left arm, on the left side of her face, and on her neck. X. Mistreatment of Plaintiff Aleta Mixon 559. On the evening of Friday, May 29, 2020, Ms. Mixon was aware that her oldest daughter, who is 20 years old, was attending a protest against police brutality in downtown Columbus. 560. After dropping a younger daughter at a different event, Ms. Mixon learned that the protests her oldest daughter was attending might become dangerous. 561. Ms. Mixon unsuccessfully attempted to contact her daughter by telephone and drove toward downtown Columbus. 562. Ms. Mixon had trouble driving to the vicinity where she believed her daughter was and ultimately, around 9:00 p.m., parked her car on State Street, near the Ohio Statehouse. 563. Ms. Mixon left her vehicle to attempt to find her daughter and saw that Columbus Division of Police officers in riot gear were massing in the street.
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564. Ms. Mixon approached a White female officer who was not in riot gear and was standing separate from the officers who were massing and began to ask the female officer for assistance in locating her daughter.
565. As the female officer was about to reply to her request, a White male Columbus Police officer charged toward her and sprayed her in the face with pepper spray.
566. The female officer confronted the male officer and said words to the effect of, “Why the fuck did you do that? She was just asking for help.”
567. Ms. Mixon began screaming from the pain of the pepper spray and calling for relief.
568. Two White male officers then approached and sprayed Ms. Mixon again. 569. Ms. Mixon fell to a seated position on the ground from the effects of the pepper spray, and she was sitting out of the street, on the sidewalk, still calling for help. 570. One of the White male officers continued spraying her, and she attempted to stand. 571. As Ms. Mixon attempted to stand up, the officer shoved her off the sidewalk and over the curb. 572. Ms. Mixon felt intense pain and a snap in her leg. 573. The officer who had shoved Ms. Mixon then stood over her and told her, “That’s what you get for your protest, bitch,” and he stepped hard on her knee, before walking away. 574. Another White male officer who had not been involved in the use of excessive force arrived and assisted Ms. Mixon, calling an ambulance and giving her advice for dealing with the effects of the spray.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 97 of 118 PAGEID #: 179 575. Ms. Mixon was transported to Grant Hospital, where she was given X-rays and
told she needed emergency surgery due to critical tears in a major tendon in her leg. 576. The X-rays also showed that Ms. Mixon’s kneecap had been shattered, with
multiple fractures in the bone. 577. Ms. Mixon’s surgery was delayed until May 31, 2020, due to the urgent medical
needs of others injured in the protests. 578. Ms. Mixon was hospitalized until Tuesday, June 2, 2020, after which she was
released, with significant restrictions on her mobility. 579. Ms. Mixon is uncertain whether she will recover full use of her leg, and she
expects to be unable to work for a period of several months or longer; a true and accurate picture of her leg post-surgery, including permanent scarring, is shown below.
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Y. Mistreatment of Plaintiff Darrell Mullen 580. On Tuesday, June 2, 2020, at around 1:30 a.m., Darrell Mullen was walking by himself northbound on the sidewalk on the east side of North High Street. 581. Mr. Mullen was walking home from a friend’s house on Oakland Avenue to his residence on Findley Avenue. 582. On May 30, 2020, Columbus Mayor Andrew Ginther had issued an executive order instituting a city-wide curfew which required most residents to remain indoors from 10 p.m. to 6 a.m. and was to remain in effect until he rescinded it. 583. The executive order stated that being outside in violation of the curfew was an unspecified degree misdemeanor. 584. As of the time that Mr. Mullen was walking home, North High Street was deserted. 585. Near the intersection of High Street and Oakland Avenue, Mr. Mullen observed four or five police cars drive past him going northbound on High Street. 586. Upon observing the police cars, Mr. Mullen made no effort to flee and continued walking northbound on High Street. 587. Mr. Mullen then observed at least one of the police cars execute a U-turn and drive towards him. 588. Again, Mr. Mullen made no attempt to flee and watched the police vehicle drive up to him. 589. At this point, a Columbus Police Officer, later identified as Thomas Hammel, got out of the police cruiser and began running at Mr. Mullen.
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590. At no time did any Columbus Police Officer order Mr. Mullen to stop, give Mr. Mullen any verbal commands, or inform Mr. Mullen that he was under arrest.
591. Instead, Officer Hammel violently tackled Mr. Mullen, taking him face down on the sidewalk, and then applied pressure to the back of his head, grinding his face into the pavement.
592. Shortly after that tackling, two more officers got on top of Mr. Mullen and began striking his back and legs with their knees.
593. Mr. Mullen was quickly handcuffed, but officers continued to apply pressure to his back and legs, with Officer Hammel continuing to apply pressure to the back and side of his neck, pushing his face into the ground and preventing him from talking.
594. When he was finally able to talk, Mr. Mullen told the officers that he had just been walking home, and Officer Hammel replied, “I know exactly where you live, is your girlfriend out of jail yet?”
595. As a proximate result of the excessive use of force, Mr. Mullen suffered facial abrasions, bruising, and a significant injury to his leg that left him unable to walk.
596. A true and accurate picture of his facial injuries is below:
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597. Mr. Mullen was then charged with violating curfew and taken to jail. 598. Because of his leg injury, when Mr. Mullen arrived at the jail, he was checked out by a nurse, who placed him in a wheelchair and recommended x-rays.
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599. When Mr. Mullen was released later that day at approximately 1:00 p.m., he was released on crutches.
600. Mr. Mullen was not charged with resisting arrest. 601. All charges against Mr. Mullen were subsequently dismissed. 602. Mr. Mullen has been unable to use his injured leg and as a result has been unable to work or care for himself. 603. On Friday, June 5, 2020, a lawsuit was filed against Defendant City alleging that the indefinite, city-wide curfew was unconstitutional. 604. Hours after the lawsuit was filed, Mayor Ginther rescinded the curfew. 605. On Tuesday, June 9, Columbus City Attorney Zach Klein dismissed all criminal charges for curfew violations brought under Mayor Ginther’s executive order, which included the criminal charge brought against Mr. Mullen. Z. Mistreatment of Plaintiff Leeanne Pagliaro 606. On the morning of Saturday, May 30, 2020, Ms. Pagliaro headed to downtown Columbus from her home in the Olde Town East area of Columbus with her wife, Plaintiff Summer Schultz, and an African-American female friend to participate in peaceful protests against the killing of George Floyd and general police misconduct disproportionately inflicted upon people of color. 607. Ms. Pagliaro, her wife, and her friend intentionally decided to go to the protests in the morning with the hope of avoiding any potential conflicts or problems from the police that they heard happened to peaceful protesters who demonstrated later during the evenings and/or after dark.
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608. They arrived downtown at approximately 11:00 a.m., parked on Long Street and headed toward Broad and High Streets.
609. They stopped in the front of the Statehouse on the east side of Broad Street to listen to speakers.
610. There was a crowd of people on the Statehouse lawn listening to speakers on a stage and people casually walking around and assembling in the general area of Broad and High Streets.
611. Ms. Pagliaro remained on the east side of High Street while Plaintiff Schultz and her friend crossed to the west side of High Street to take pictures of the Statehouse and of the crowd listening to speakers on the lawn.
612. Plaintiff Schultz and her friend then returned to join Ms. Pagliaro. 613. While they were initially standing on a sidewalk crowded with protestors, they were forced onto the side when the protestors started marching. 614. Ms. Pagliaro noticed more Columbus Police Officers were arriving, including units that looked like SWAT teams, and the Officers started forming a line across High Street. 615. Ms. Pagliaro heard some type of commotion nearby, some protestors began to scream loudly, and she became separated from her wife and friend. 616. Columbus Police Officers were standing with their bicycles in front of the crowd and close to Ms. Pagliaro, but she purposely did not talk or speak to the police at all. 617. Ms. Pagliaro was kneeling in front of other protesters but was being pushed so she had to stand up to avoid being trampled. 618. She was pushed up to the line of Columbus Police Officers on bicycles, but she did not make physical contact with them or speak to them.
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619. Ms. Pagliaro watched Columbus Police Officers pull, without provocation, a woman over the bikes and then repeatedly punched her head into the ground.
620. Without any warning, Columbus Police Officers turned and sprayed Ms. Pagliaro directly in the face from less than three feet away with what she believes was pepper spray, and she felt her eyes burn, started coughing, and found it difficult to breathe.
621. She was dragged out of the crowd by strangers who took her to a medical station. 622. While Ms. Pagliaro was receiving medical attention, she was again, without warning, sprayed directly in the face by a different Columbus Police Officer using a substance that she came to believe was pepper spray. 623. By then, Ms. Pagliaro’s eyes were burning badly and watering, she could not breathe, she continued to cough, and her throat was hurting. 624. Ms. Pagliaro did not know where her wife and friend were. 625. Ms. Pagliaro and others moved away from the medic station, her wife called her, and they reunited at the medic station. 626. When Ms. Pagliaro could finally open her eyes, the group moved away from the medic station to let others be treated and they were sprayed again. 627. Ms. Pagliaro, Ms. Schultz, and others helped pull protesters out of the crowd who had been sprayed and helped them get to medic stations. 628. Someone in the group looked to see what time it was and remarked, “Wow, it’s not even noon yet,” or words to that effect. 629. Ms. Pagliaro left the downtown area and returned home with the people she arrived with.
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630. Ms. Pagliaro felt the spray in her eyes and throat long after she had left downtown.
631. The spray remained on her clothes and book bag even after cleaning. 632. Ms. Pagliaro was shocked, disappointed, and in a state of disbelief because of the mistreatment she had received from Columbus Police Officers when she had purposely not uttered a word to them or done anything to provoke being pepper-sprayed the first time, let alone the second and third times. AA. Mistreatment of Plaintiff Torrie Ruffin 633. Ms. Ruffin attended the protests in downtown Columbus near the Statehouse each day from May 30, 2020, until approximately June 5, 2020. 634. Around 11:00 a.m. on May 30, 2020, at the intersection of Broad and High Streets, Ms. Ruffin had linked arms with other protestors and stood in front of Columbus Police Officers. 635. Ms. Ruffin observed several Columbus Police Officer snipers standing on top of buildings surrounding the protests. 636. Ms. Ruffin was in the second row of the linked protestors; in front of her, she observed Columbus Police Officers using their bikes to force protestors to move. 637. Without prior warning or a dispersal order, Columbus Police Officers began pepper-spraying the group of linked protestors. 638. A Columbus Police Officer who sprayed Ms. Ruffin was standing a few feet away from her face, and Ms. Ruffin had to remove herself from the group to flush out her eyes while sitting on the sidewalk.
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639. Ms. Ruffin then joined a large group of protestors sitting on the curb of the sidewalk next to parked Columbus Police Officer cruisers, where protestors were sitting and chanting, “This is a peaceful protest,” in front of the Officers.
640. Columbus Police Officers then approached the group and pepper-sprayed them without prior warning or an order to disperse.
641. Columbus Police Officers pepper-sprayed downwards, towards the faces of the protestors, including Ms. Ruffin.
642. Ms. Ruffin started coughing and crying as the pepper-spray rained down upon her eyes and face.
643. Ms. Ruffin experienced a burning sensation and had to flush her eyes out again. 644. Ms. Ruffin then crossed the street and continued protesting on the sidewalk. 645. Columbus Police Officers then approached her group on the sidewalk with their horses, using the horses to push the protestors who were standing on the sidewalk up against the nearby buildings. 646. At that point, there were virtually no protestors in the streets, and Ms. Ruffin and other protestors were on the sidewalk. 647. Columbus Police Officers began deploying tear-gas and smoke bombs against the protestors. 648. The onslaught of tear-gas and smoke bombs continued for more than five minutes. 649. Columbus Police Officers then drove through the streets and ordered the protestors to disperse, threatening arrest for failure to disperse.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 107 of 118 PAGEID #: 189 650. Columbus Police Officers continued to use tear-gas and smoke bombs to get
protestors to leave the downtown area, and the video below fairly and accurately depicts what Ms. Ruffin observed (double click to play or click the link). https://www.dropbox.com/s/e0arxn2syb3j5cm/IMG_2051%20%281%29.MOV?dl=0.
651. Ms. Ruffin’s exposure to the pepper-spray, tear gas, and smoke bombs caused her to choke, cry, cough, and experience breathing issues.
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652. On Saturday, May 30, 2020, at about 11:00 a.m., Ms. Schultz headed toward downtown Columbus from her home in the Olde Town East area of Columbus with her wife, Plaintiff Leeanne Pagliaro, and an African-American female friend to participate in peaceful demonstrations against the killing of George Floyd and police misconduct in general that is disproportionately inflicted upon people of color.
653. They intentionally decided to go to the protests in the morning with the hope of avoiding any potential conflicts or problems from the police that they heard happened to peaceful protesters who demonstrated later during the evenings and/or after dark.
654. They arrived downtown around 11:15 a.m. and parked on East Long Street. 655. They walked to where peaceful demonstrators had gathered, near Broad and High Streets. 656. They walked down the east side of High Street and stopped in front of the Ohio Statehouse. 657. Protestors were gathered on the Statehouse lawn listening to speakers, some sitting and some standing, and all were peaceful. 658. Ms. Schultz and her friend wanted to take pictures of the Statehouse and the protestors, so they decided to cross to the west side of High Street to get a better picture. 659. As they were taking pictures, Ms. Schultz noticed more Columbus Police Officers were arriving. 660. Within about five minutes, the number of Columbus Police Officers had increased considerably, and Ms. Schultz noticed there were police snipers on the scene. 661. Columbus Police Officers with bicycles started to form a line blocking the intersection of High and Broad Streets.
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662. Ms. Schultz and her friend returned to the other side of High Street where Plaintiff Pagliaro was located.
663. Ms. Schultz could hear that something was happening near Broad and High Streets.
664. All of a sudden, her throat felt closed up, her eyes started burning, and she realized something was being sprayed at her.
665. It was difficult to see and to hear, and in the confusion she was separated from Ms. Pagliaro.
666. Columbus Police Officers on bicycles lined up next to the sidewalk where she was standing, and they eventually brought their bikes onto the sidewalk.
667. Columbus Police Officers told protestors to get on the sidewalk, but there was not enough room for everyone to fit.
668. As protestors were trying to get on the sidewalk, something was again sprayed, and Ms. Schultz was sprayed in the face.
669. Ms. Schultz’s eyes were burning, and someone rinsed them with saline and a milk of magnesia solution.
670. Protestors tried to get on the sidewalk as instructed by the Columbus Police Officers, but they spilled into the street near the corner of Broad and High Streets.
671. Ms. Schultz saw Columbus Police Officers grab a young African-American male – he appeared to be a boy or a teenager – by his shirt and attempt to pull him over a bike.
672. White protestors attempted to shield the child from the Columbus Police Officers to protect him, because the police were not acting as aggressively toward White people.
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673. Ms. Schultz was approximately ten feet from the line of Columbus Police Officers, and it was still difficult to see and breathe.
674. Ms. Schultz and others turned to leave and move away from the street and Columbus Police Officers, and she heard protestors repeating, “Walk, do not run; walk, do not run.”
675. Ms. Schultz walked away from Columbus Police Officers with her back turned to them and the street.
676. Ms. Schultz was suddenly hit with something so forceful that it knocked her off her feet to the ground, and, when she tried to get up, she could not.
677. Ms. Schultz tried to stand on her feet again, stumbled, and could not get up; she was disoriented, in pain, and could barely see.
678. Ms. Shultz felt someone pull her up and help her walk and soon realized that she knew the person.
679. The person helped Ms. Schultz walk down Broad Street past a tall building with scaffolding (the Rhodes Office Tower), toward Third Street, and down an alley.
680. Ms. Schultz used her cell phone to call her wife, Plaintiff Pagliaro, and she answered.
681. Ms. Schultz was reunited with her wife and friend, and they left downtown. 682. Ms. Schultz believes all of the events from the time they arrived downtown until the time they left took place within about 30 to 45 minutes. 683. Ms. Schultz later realized that she had been shot in the buttocks with wooden bullets. 684. Ms. Schultz was in significant pain from being shot.
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Case: 2:20-cv-03431-ALM-KAJ Doc #: 2 Filed: 09/16/20 Page: 111 of 118 PAGEID #: 193 685. Ms. Schultz could not sit down comfortably for days, was forced to lie on her
side, applied ice to reduce the swelling, used over-the-counter pain medication, and took Epsom salt baths to alleviate the pain and swelling.
686. The wooden bullets left a large round indentation on her buttocks that turned blue with obvious bruising and swelling, and Plaintiff Pagliaro took pictures on the day of the incident and periodically thereafter; a true and accurate copy of one of those pictures is below.
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687. Ms. Schultz was in pain for more than a week, and bruises, which were the size of a disk or hockey puck, were visible for weeks.
688. Ms. Schultz remains disturbed about being shot with wooden bullets while peacefully walking away from the police; suffering the smell of tear gas and inhaling pepper spray while she was peaceably protesting; hearing the sound of protestors screaming; and the unprovoked abuse by Columbus Police Officers that she witnessed against other peaceful protesters on the May 30, 2020.
CC. Mistreatment of Plaintiff Amanda Weldon 689. On the morning of May 30, 2020, Ms. Weldon and her roommate headed downtown for an organized protest against police brutality and racism. 690. While attending the event and peacefully protesting, Ms. Weldon was asked to stand in the front line of a group of protestors to protect the minorities standing behind her as police armed in riot gear began to line the streets. 691. Many protestors believed that Columbus Police Officers would be less likely to use excessive force against White protestors than Black protestors and called for White protestors to stand between Columbus Police Officers and Black protestors. 692. Ms. Weldon neither acted violently nor showed any aggression. 693. While peacefully protesting in front of other protestors, Ms. Weldon was maced twice and pepper-sprayed once by Columbus Police Officers. 694. On June 1, 2020, Ms. Weldon was attending a protest near the intersection of North High Street and Lane Avenue. She was approached by a Columbus Police Officer who hopped out his cruiser and pointed, without shooting, what she assumed was a real gun at her. 695. Ms. Weldon was terrified by that incident.
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696. Ms. Weldon witnessed Columbus Police Officers inflicting pain on peaceful protestors and was horrified by what she saw.
697. Ms. Weldon also observed a female protestor, who was handcuffed and lying on the ground, be pepper-sprayed by a Columbus Police Officer.
698. The way in which Ms. Weldon was mistreated and the incidents of excessive use of force she observed generated so much anxiety and fear of being harmed that she became physically ill, including vomiting after the incident on June 1, and discontinued going to protests.
DD. Mistreatment of Plaintiff Heather Wise 699. On June 21, 2020, Ms. Wise went to downtown Columbus to participate in the protests. 700. During previous incidents, Ms. Wise had been subjected to violence at the hands of Columbus Police Officers, however on her June 21, 2020 visit downtown she was subjected to especially gratuitous violence. 701. At the corner of Broad and High, Ms. Wise was standing with a group of protestors who were trying to protect themselves from any potential police violence. 702. Columbus Police Officers on bicycles approached the protestors and began to use their bodies as well as their bicycles as weapons against the protestors, physically assaulting the peaceful protestors. 703. Ms. Wise was standing there at the intersection of Broad and High as Columbus Police Officers began pepper spraying the peaceful protestors. 704. As some people dispersed, Ms. Wise was standing next to a Black woman who was being pepper-sprayed and attempted to shield her.
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705. While attempting to protect her fellow peaceful protestor, Ms. Wise was assaulted by a Columbus Police Officer who used the space in between his thumb and index finger to press his hand into her throat and push her back.
706. Near the same time, Ms. Wise was being assaulted by a Columbus Police Officer who was pushing his bicycle into her and others.
707. Ms. Wise and others fell to the ground and Columbus Police Officers continued pepper spraying them as they lay there attempting to cover themselves.
708. Columbus Police Officers then pulled out a vial of a brown liquid that they began pouring into the eyes and faces of Ms. Wise and others.
709. Ms. Wise suffered bruising across her arms and legs in addition to injuries suffered from the pepper spray and the unknown substance. V. CLAIMS FOR RELIEF
A. First Count: Violation of Fourth and Fourteenth Amendment Rights 710. Paragraphs 1 through 709 above are realleged and incorporated herein. 711. By using excessive force, Defendants Sergeant and Officers violated the privacy and bodily integrity protected by the Fourth and Fourteenth Amendments of one or more Plaintiffs. 712. By their deliberate indifference to the policies, training, supervision, and discipline needed to prevent police officers and mutual aid law enforcement personnel from using excessive force in circumstances similar to those involving the protests, Defendants City of Columbus and Chief caused the deprivation of civil rights and injuries to one or more Plaintiffs and thereby violated the Fourth and Fourteenth Amendments. B. Second Count: Violation of First and Fourteenth Amendment Rights 713. Paragraphs 1 through 709 above are realleged and incorporated herein.
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714. By punishing one or more Plaintiffs for assembling and exercising their freedom of expression and attempting to discourage assembly and expression of Plaintiffs and other protestors, Defendants Sergeant and Officers violated their rights under the First and Fourteenth Amendments.
715. By their deliberate indifference to the policies, training, supervision, and discipline needed to prevent police officers and mutual aid law enforcement personnel from retaliating against speakers and speech they hated, Defendants City of Columbus and Chief caused one or more Plaintiffs to be punished for assembling and exercising their freedom of expression and caused the officers’ attempt to discourage assembly and expression of one or more Plaintiffs and other protestors, and thereby violated the First and Fourteenth Amendments.
C. Third Count: Gross Negligence 716. Paragraphs 1 through 709 above are realleged and incorporated herein. 717. By their willful, wanton, and reckless acts or omissions, including but not limited to, using excessive force, punishing protestors for their assembly and speech, seeking to discourage protestors, and/or failing to adopt effective policies or adequately train, supervise, and discipline police officers, Defendants Chief, Sergeant, and Officers committed gross negligence in dereliction of their duty to preserve and protect the citizens and residents of the City of Columbus and Franklin County. D. Fourth Count: Battery 718. Paragraphs 1 through 709 above are realleged and incorporated herein. 719. By their willful, wanton, and reckless acts or omissions, including but not limited to, engaging in, authorizing, and ratifying excessive force and unlawful arrest and seizure, Defendants Chief, Sergeant, and Officers committed battery under the common law of the State of Ohio. E. Fifth Count: Malicious Prosecution 720. Paragraphs 1 through 709 above are realleged and incorporated herein.
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721. By initiating criminal prosecutions when there was a lack of probable cause for criminal prosecution, falsely concocting such cause, and depriving Plaintiffs Nadia Lynch and Demetrius Burke of liberty before the prosecutions were resolved in their favor, Defendants Kanode and Kirby, acting with ill will toward protestors and the protest, violated Ms. Lynch’s and Mr. Burke’s rights under the Fourth and Fourteenth Amendments and the common law of the State of Ohio.
F. Civil Action for Damages from Criminal Act 722. Paragraphs 1 through 709 above are realleged and incorporated herein. 723. By their willful, wanton, and reckless acts or omissions constituting criminal acts, including the battery prohibited by R.C. 2903.13 and the knowing interference with Plaintiffs’ civil rights prohibited by R.C. 2921.45, Defendants Chief, Sergeant, and Officers are liable under R.C. 2307.60 for injuries by conduct made criminal. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand judgment against the Defendants, jointly and severally, a. declaring that they have violated their civil rights and/or Defendants Chief, Sergeant, and Officers have been grossly negligent toward them and inflicted injuries by conduct made criminal and/or one or more Defendants Officers maliciously prosecuted and battered them; b. ordering such equitable relief as will make them whole for Defendants’ unlawful conduct and ensure prospectively that they are protected from future similar conduct; costs; and reasonable attorneys’ fees; c. awarding compensatory and, against Defendants Chief, Sergeant, and Officers, punitive damages in excess of $25,000; and d. granting such other relief as the Court may deem appropriate.
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OF COUNSEL: Louis A. Jacobs (002101) (LAJOhio@aol.com) 177 19th St., Apt. 9C Oakland, CA 94612 (614) 203-1255 Fax (614) 463-9780

Respectfully submitted,
By: /s/ Edward R. Forman Edward R. Forman (0076651) (eforman@marshallforman.com) John S. Marshall (0015160) (jmarshall@marshallforman.com) Madeline J. Rettig (0098816) (mrettig@marshallforman.com) Helen M. Robinson (0097070) (hrobinson@marshallforman.com) Samuel M. Schlein (0092194) (sschlein@marshallforman.com) MARSHALL & FORMAN LLC 250 Civic Center Dr., Suite 480 Columbus, Ohio 43215-5296 (614) 463-9790 Fax (614) 463-9780
Frederick M. Gittes (0031444) fgittes@gitteslaw.com Jeffrey P. Vardaro (0081819) jvardaro@gitteslaw.com The Gittes Law Group 723 Oak St. Columbus, OH 43205 Phone: (614) 222-4735 Fax: (614) 221-9655
Sean L. Walton (0088401) Chanda L. Brown (0081076) Walton + Brown, LLP 395 E. Broad Street, Suite 200 Columbus, Ohio 43215 T: (614) 636-3476 F: (614) 636-3453 swalton@waltonbrownlaw.com cbrown@waltonbrownlaw.com
James D. McNamara (0002461) 88 E. Broad Street, Suite 1350 Columbus, OH 43215 (614) 464-2770 psilbach@yahoo.com
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JURY DEMAND Plaintiffs demand a trial by jury on all issues and defenses triable to a jury.
By: /s/ Edward R. Forman Edward R. Forman (0076651)
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 Case: 2:20-cv-03431-ALM-KAJ Doc #: 66 Filed: 04/30/21 Page: 1 of 88 PAGEID #: 5671

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TAMARA K. ALSAADA, et al., Plaintiffs,
v. CITY OF COLUMBUS, et al.,
Defendants.

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:

Case No. 2:20-cv-3431

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:

CHIEF JUDGE ALGENON L. MARBLEY

:

:

Magistrate Judge Kimberly A. Jolson

:

:

:

OPINION & ORDER

I. INTRODUCTION..............................................................................................................................................2 II. BACKGROUND ................................................................................................................................................4
A. THE HISTORY OF POLICING ..............................................................................................................................4 B. THE KILLING OF GEORGE FLOYD.....................................................................................................................8 C. POLICIES AND PROCEDURES OF THE COLUMBUS DIVISION OF THE POLICE ......................................................9
1. Use of Force Policy ..................................................................................................................................10 2. Chemical Irritants ....................................................................................................................................11 3. Impact Munitions......................................................................................................................................13 4. Bikes, Horses, and Kettling ......................................................................................................................14 D. THE PROTESTS ...............................................................................................................................................14 1. Thursday, May 28, 2020 ...........................................................................................................................15 2. Friday, May 29, 2020 ...............................................................................................................................20 3. Saturday, May 30, 2020............................................................................................................................28 4. Sunday, May 31, 2020 ..............................................................................................................................36 5. Monday, June 1, 2020...............................................................................................................................39 6. Sunday, June 21, 2020 (Father’s Day Demonstration) ............................................................................41 7. CPD’s Characterization of the Protests ...................................................................................................44
III. STANDARD OF REVIEW .............................................................................................................................45 IV. LAW & ANALYSIS.........................................................................................................................................46
A. THE FLOYD CASE LAW ................................................................................................................................46 B. STANDING TO SEEK INJUNCTIVE RELIEF ....................................................................................................47 C. MOOTNESS ....................................................................................................................................................56
1. Capable of Repetition Yet Evading Review ..............................................................................................57 2. Voluntary Cessation Doctrine ..................................................................................................................58 D. FACTORS FOR PRELIMINARY-INJUNCTIVE RELIEF.....................................................................................59 1. Likelihood of Success on the Merits .........................................................................................................59 a. The Fourth Amendment (Excessive Force)...............................................................................................59 b. First Amendment (Retaliation) .................................................................................................................74 c. Municipal Liability under Monell ............................................................................................................77 (1) Illegal Official Policy or Legislative Enactment ......................................................................................78 (3) Failure to Supervise and Discipline .........................................................................................................79 (4) Custom or Tolerance of Acquiescence......................................................................................................81 (5) Finding on Monell Factors.......................................................................................................................84 2. Irreparable Harm .....................................................................................................................................84 3. Balance of the Equities .............................................................................................................................85
V. CONCLUSION.................................................................................................................................................88

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I. INTRODUCTION But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for rights.1 The document to which Nobel Laureate, Dr. Martin Luther King, Jr., referred is the First Amendment to the United States Constitution. Unfortunately, some of the members of the Columbus Police Department had no regard for the rights secured by this bedrock principle of American democracy. This case is the sad tale of police officers, clothed with the awesome power of the state, run amok. Because cell phones captured last year’s police killing of George Floyd, the world stopped. Last year’s protests in the aftermath of Mr. Floyd’s death reignited the flashpoint around which this case revolves—the accessibility and protection of constitutional rights. Dr. King’s words serve as a reminder that progress is not linear and that history is both a collective diary and a mirror. As this Court will explore in detail below, the march continues. This matter comes before the Court on Plaintiffs’ Motion for a Preliminary Injunction. (ECF No. 6). Defendants oppose. (ECF No. 10). Plaintiffs are twenty-six individuals who joined protests or were proximate to protests during summer 2020.2 Defendants are the City of Columbus, Deputy Chief of Police Thomas Quinlan, Sergeant David Gitlitz, Officer Shawn Dye, Officer Thomas Hammel, Officer Holly Kanode, Officer Kenneth Kirby, Officer Michael Eschenburg, and John and Jane Does #1-30—i.e., officers whose identities are not yet known.
1 Martin Luther King, Jr., I’ve Been to the Mountaintop (April 3, 1968), http://kingencyclopedia.stanford.edu/ encyclopedia/documentsentry/ive_been_to_the_mountaintop. 2 Plaintiffs are: (1) Tamara Alsaada; (2) Demetrius Burke; (3) Bernadette Calvey; (4) Stephanie Carlock; (5) Andrew Fahmy; (6) Talon Garth; (7) Randy Kaigler; (8) Rebecca Lamey; (9) Nadia Lynch; (10) Aleta Mixon; (11) Darrell Mullen; (12) Heather Wise; (13) Mahir Ali; (14) S.L.C., a minor; (15) Jennifer Eidemiller; (16) Holly Hahn; (17) Bryan Hazlett; (18) Justin Horne; (19) Kurghan Horn; (20) Terry D. Hubby, Jr.; (21) Elizabeth Koehler; (22) Mia Mogavero; (23) Leeanne Pagliaro; (24) Torrie Ruffin; (25) Amanda Weldon; and (26) Summer Schultz.
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Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs move for a
preliminary injunction:
(1) restraining Defendants from using non-lethal force, including tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling, on nonviolent protestors to enforce dispersal orders, traffic laws, such as clearing the streets or sidewalks, and/or misdemeanors that were not committed with actual or imminently threatened physical harm or property destruction;
(2) requiring Defendants to recognize that, for purposes of the injunction, “nonviolent protestors” includes individuals who are chanting, verbally confronting police, sitting, holding their hands up when approaching police, occupying streets or sidewalks, and/or passively resisting police orders;
(3) requiring Defendants to enforce dispersal orders, traffic laws, such as clearing the streets or sidewalks, or misdemeanor enforcement, to the extent practicable, through citations or arrests, based on probable cause that an individual has committed a violation;
(4) prohibiting the Defendants from the infliction of pain to punish or deter “nonviolent protestors” and limiting infliction of pain on any protestor when incidental to a use of force necessary for preventing crimes committed with actual or imminently threatened physical harm or property destruction and/or arresting, based on probable cause, an individual who allegedly committed such an offense;
(5) requiring Defendants to ensure that body and vehicle cameras are in good working order and used during every interaction with “nonviolent protestors” and badge numbers and/or identity cards are prominently displayed in each such interaction, even when riot gear is being worn;
(6) requiring Defendants to recognize that individuals legitimately displaying “press,” “media,” “reporter,” “paramedic,” “medic,” “legal observer,” or similar words and/or symbols are permitted to be present in a position enabling them to record at protests and/or to intervene to assist individuals who appear to have been injured and that all individuals, regardless of their occupation or nonviolent activity, are permitted to record at protests or whenever any police officer interacts with the public; and
(7) requiring the City of Columbus (hereinafter “City”) and its Division of Police (“CPD”) to request that mutual aid law enforcement personnel cooperating with them adhere to the foregoing restraints or standards on the use of non-lethal force and enforcement, infliction of pain, cameras and identification, and recognition of “nonviolent protestors” and individuals assisting or observing them.
(ECF No. 6 at 1–2).
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This Court held a preliminary injunction hearing, which lasted from February 22 to March 2, 2021. Subsequently, the parties submitted their post-hearing briefing and replies. (ECF Nos. 59, 61, 63, 64). Defendants oppose injunctive relief, asserting lack of standing, mootness, and a failure to meet the familiar four preliminary injunction prongs. For the reasons that follow, this Court GRANTS Plaintiffs’ Motion for a Preliminary Injunction. (ECF No. 6).
II. BACKGROUND A. The History of Policing An 1871 New York Times article on the history of policing wrote: “The personnel of the force is an excellent one, though there are of course some decided exceptions, as in all large bodies of men.”3 The history of policing in the United States presents, as history is wont to do, uncomfortable truths upon which this Court pauses to reflect. As the nascent colonies matured, a concerted effort to surveil society’s goings-on developed. Night watches, constables, and sheriffs were a mix of ad hoc vigilante groups and those with more institutional legitimacy.4 It was 1631 Boston that created the idea of the so-called Boston Watch (also known as “The Court”; “Town Watch”; and “citizen Watchmen”). These citizen Watchmen were organized as a “military guard” to surveil and punish infractions. Everything from wearing “extravagant boots,” to northeastern Indian tribes engaging in sacred cultural traditions, to infamous accusations of witchcraft, became punishable at the hands of the Town Watch.5 New York followed suit in 1845, establishing a police force of 800 men.6 The recruits were told that
3 The New-York Police, N.Y. TIMES, June 4, 1871, at 8. 4 Edward H. Savage, A Chronological History of the Boston Watch and Police (from 1631 to 1865) 11 (Boston, 1865). 5 Id. 6 See Raymond W. Kelly, Police Dep’t City of New York, The History of the New York City Police Department 5, https://www.ncjrs.gov/pdffiles1/Digitization/145539NCJRS.pdf. The first reported police shooting took place in 1858 in New York City, when an unarmed Irish immigrant named John Hollis was shot with an officer’s personal firearm while attempting to flee.
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“the prevention of crime [was] the most important object.”7 And “[b]y the late 1880s, all major U.S. cities had municipal police forces in place.”8
In the Antebellum South, formal policing took its earliest form in slave patrols. By 1822, the slave patrol system in South Carolina was 100-members strong.9 During the 1830s, New Orleans adopted a militaristic police force to control slaves.10 These slave patrols had three primary
functions: (1) to chase down, apprehend, and return to their owners, runaway slaves; (2) to provide
a form of organized terror to deter slave revolts; and (3) to maintain a form of discipline for slaveworkers who were subject to summary justice, outside of the law, if they violated plantation rules.11
After the Civil War, chattel slavery ended formally, but the legal and economic subjugation of Black Americans endured, as slave codes gave way to Black Codes.12 The two codes were so similar it is a wonder that the copy-and-paste functionality was only invented more recently.13
Confederate defeat also initiated the convict-lease system—which reified the societal synonymization of blackness with criminality.14 Of course, ratification of the Reconstruction
Amendments, i.e., the Thirteenth, Fourteenth, and Fifteenth Amendments, did not create de jure
7 Id. 8 Samuel Walker, Popular Justice, A History of American Criminal Justice 49–80 (2d ed. 1998). Olivia B. Waxman, How the U.S. Got Its Police Force, TIME (May 18, 2017), https://time.com/4779112/police-history-origins. 9 Walker, Popular Justice at 52. 10 Dennis C. Rousey, Policing the Southern City: New Orleans 1805−1889 (1996). 11 Gary Potter, The History of Policing in the United States, Part 1, E. Ky. Univ. Police Stud. (June 25, 2013), https://plsonline.eku.edu/insidelook/history-policing-united-states-part-1. 12 See Chelsea Hansen, Slave Patrols: An Early Form of American Policing, Nat’l Law Enf’t Museum, (July 10, 2019), https://lawenforcementmuseum.org/2019/07/10/slave-patrols-an-early-form-of-american-policing (“After the Civil War, Southern police departments often carried over aspects of the patrols . . . includ[ing] systematic surveillance, the enforcement of curfews, and even notions of who could become a police officer.”). 13 Id. 14 Angela Davis, Policing the Black Man 11, 12 (Pantheon Books 1st ed. 2017) (“Convict leasing, the practice of ‘selling’ the labor of state and local prisoners to private interests for state profit . . . The presumptive identify of black men as ‘slaves’ evolved into the presumptive identity of ‘criminal,’ and we have yet to fully recover from this historical frame.”).
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or de facto equity. Rather, Jim Crow laws took the place of the Black Codes—lasting until recently: 1968.15
In the American West, law officers such as the Texas Rangers committed violence against indigenous persons, Mexicans, and Mexican-Americans in Texas.16 In California, so-called “vigilance committees” terrorized Chinese immigrants; some such committees acted with legal authority, arresting, trying, and eventually executing people.17
In the North, the development of policing as we know it today was intimately bound up with the policing of “undesirable” immigrant groups and free or freed Blacks in the swelling cities.18 In cities like Boston, Chicago, and New York, nineteenth-century police participated in strike-breaking and perpetrated election fraud in the service of political machines of the day.19
As history books turned from black-and-white to full color, the role of law enforcement in society remained fraught. The organizational structure of police departments grew increasingly dependent on technology such as the two-way radio and surveillance devices. Televisions aired police barring Black students from integrating Little Rock Central High School; they showed that peaceful protests for civil rights were met with police violence and arrests, fire hoses, and dog
15 See Jim Crow Laws, History (updated Mar. 26, 2021), https://www.history.com/topics/early-20th-century-us/jimcrow-laws. 16 Jill Lepore, The Invention of the Police, New Yorker (July 13, 2020), https://www.newyorker.com/ magazine/2020/07/20/the-invention-of-the-police (noting that immigration from Ireland and German contributed to the emergence of urban policing in major American cities). 17 Id. 18 See Potter, The History of Policing (observing that one of primary focuses of police in the 1830s and 1840s was the surveillance of immigrants); Robinson, Black Bodies on the Ground at 555 (opining that “police departments had a function of controlling immigrants with brute force and brutality”); Lawrence M. Friedman, Crime and Punishment in American History 66–73 (1993) (recounting the “professionalization” of the system of criminal justice during the nineteenth century). 19 Potter, The History of Policing; see also Lepore, The Invention of the Police.
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attacks.20 Riots that erupted after instances of police brutality or discrimination occurred with
regularity in American cities during the 1960s.21
Technology did not just bring the struggle for equity to those seemingly unaffected by
injustice. It also thrust officer conduct into scrutiny’s spotlight. The 1985 Philadelphia Police
Department bombing targeted a rowhome inhabited by a Black separatist group, killing eleven
people and destroying sixty-one homes (a formal municipal apology came just in 2020).22 The
brutal police beating of Rodney King in 1991—and the acquittal of police officers on all charges
of excessive force—precipitated riots across the United States. The 1993 law-enforcement siege
in Waco, Texas, was broadcast live for weeks on end.
That brings us to today. Police occupy an interesting role in our societal consciousness.
Children play cops-and-robbers and dream of becoming a police officer when grown. And law
enforcement is an ever-present topic in songs,23 musical theater,24 television,25 and movies.26
20 Id.; see also Jeremy Gray, Bull Connor Used Fire Hoses, Police Dogs on Protestors, Birmingham News (May 3, 1963), https://www.al.com/birmingham-news-stories/2013/05/bull_connor_used_fire_hoses_po.html. 21 Potter, The History of Policing. 22 Lindsey Norward, The Day Philadelphia Bombed Its Own People, Vox (Aug. 15, 2019), https://www.vox.com/thehighlight/2019/8/8/20747198/philadelphia-bombing-1985-move; John Ismay, 35 Years After MOVE Bombing that Killed 11, Philadelphia Apologizes, N.Y. Times (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/us/ philadelphia-bombing-apology-move.html. 23 Hip-hop artist KRS-One’s “Sound of da Police” likens modern-day policing to that of an overseer of the antebellum south:
[] Officer, Officer, Officer! Yeah, officer from overseer. You need a little clarity? Check the similarity! The overseer rode around the plantation. The officer is off patrolling all the nation. The overseer could stop you what you’re doing. The officer will pull you over just when he’s pursuing. The overseer had the right to get ill. And if you fought back, the overseer had the right to kill. The officer has the right to arrest. And if you fight back they put a hole in your chest! Woop! They both ride horses. After 400 years, I’ve got no choices! KRS-ONE, Sound of Da Police (Jive Records 1993); see also 2Pac, Trapped (Interscope Records 1991); Rick James, Mr. Policeman (Motown Records 1981); Gil Scott-Heron, No-Knock (Ace Records 2014). 24 Javert, the inspector in Victor Hugo’s theatrical version of Les Misérables, acted with impudence and displayed a total lack of empathy; for example, without any investigation into the circumstances, he adjudged innocent Fantine guilty without inquiring into the circumstances, stating: “She will answer for her actions when you make a full report. You can rest assured, Monsieur, that she will answer to the court.” Les Misérables, Fantine’s Arrest, on Les Misérables: The Complete Symphonic Recording (First Night Records 2004). In the cinematographic adaptation of West Side Story, Officer Krupke is a perennial thorn-in-the-side of the protagonists, though is hapless and doles out empty threats. West Side Story (Mirisch Pictures 1961). 25 The Andy Griffith Show (CBS); Brooklyn Nine-Nine (Fox); Live PD (A&E Network). 26 The Trial of the Chicago Seven (Amblin Entertainment 2020); Turner & Hooch (Touchstone Pictures 1989); Die Hard (Gordon Company 1988).
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Despite a shift toward community policing, new dark chapters have been drafted in this institution’s history books.27 And they continue to be drafted.
B. The Killing of George Floyd Against this backdrop, Columbus, Ohio, the United States, and our international neighbors are fighting dual battles: a horrifying and deadly pandemic and grappling with historical vestiges and present displays of racial hatred. Neither has a panacea. Both have wrought and revealed substantial division in our communities. 2020 was a precedent-setting year. Many of us wish we could erase the year from our minds and calendars. But last year remains indelible, particularly as it proved a tragic flashpoint between the COVID-19 pandemic and deep-seated racism. Analogous to how the television brought the Civil Rights Movement into living rooms, cell phones immortalizing the killings of unarmed black citizens bring these intimate final moments to our palms. On May 25, 2020, George Floyd, a Black American, presented a counterfeit $20 bill at a convenience store. Police arrived. Moments later, Mr. Floyd showed no signs of life. After Officer Derek Chauvin kneeled on Mr. Floyd’s neck for approximately nine minutes and 29 seconds, Mr. Floyd died.28 “I can’t breathe”—a cry for help gasped by an incalculable number of Americans dying at the hands of government officials, including Mr. Floyd—became an international rallying cry.29
27 Today’s stop-and-frisk programs, employed on massive scales throughout American society, may be but a modernday version of enforcement of the Black Codes. Davis, Policing the Black Man at 43. Robinson, Black Bodies on the Ground, at 559 (noting that the Black Code allowed the stopping of Black people in public to search for weapons and “[i]f a Black [person] refused to stop on demand and was on horseback, the colonist was authorized to shoot to kill”). 28 Nicholas Bogel-Burroughs, 8 Minutes, 46 Seconds Became a Symbol in George Floyd’s Death. The Exact Time Is Less Clear, N.Y. Times, June 18, 2020 (“The precise length of time that Mr. Floyd was pinned beneath the officer’s knee, however, is no longer as exact.”). 29 Al Goodman, David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times, June 13, 2015 (“The chokehold. The swarm of officers. The 11 pleas for breath”); Doha Madani, 2 ExDeputies Indicted on Manslaughter Charge in Death of Javier Ambler, NBC News, Mar. 30, 2021 (“Ambler is also
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Days after the killing, protests began across the nation, and Columbus, Ohio was no exception. Most of the demonstrations occurred between May 28 and June 21, 2020, with further protests on either end of that period in response to deaths of other Americans at the hands of law enforcement. (ECF No. 1 ¶ 47).
C. Policies and Procedures of the Columbus Division of the Police Before this Court today are protestors desiring to engage in their rights guaranteed by the Constitution, without fear of retaliation by police officers’ use of tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling. The heart of Plaintiffs’ Motion for Preliminary Injunction is that apart from assembling, chanting, or holding signs in the middle of streets or other locations that Columbus police officers wanted them to abandon, Plaintiffs were not violating any laws, threatening violence, destroying any property, or hampering traffic. (ECF No. 6; see also ECF No. 1 ¶ 92). Rather than responding appropriately to an isolated incident—such as a protestor throwing a water bottle—Plaintiffs allege that officers engaged in collective punishment by indiscriminately pepper-spraying, tear-gassing, or shooting wooden bullets at a group of obviously different protestors who had not engaged in any such conduct; and, what is more, sometimes failed to give audible warnings or adequate time to disperse before resorting to less-lethal force. (ECF No. 1 ¶ 93). The term “less-lethal force” is a term of art that refers to munitions, projectiles, and the use of physical force that officers might use to restrain or compel movement (but not intended to cause
heard telling the deputies he had congestive heart failure”); Stacia Glenn, Tacoma’s ‘Can’t Breathe’ Case: Manuel Ellis’ Family Demands Answers After He Was Killed While Being Restrained by Police, Seattle Times, June 4, 2020; Meagan Flynn, Another Black Man Who Died in Custody Told Officer, ‘I Can’t Breathe.’ One Responded, ‘I don’t Care.’ Wash. Post, June 11, 2020 (“Officers also suggested aloud on multiple occasions that Scott was only pretending to be unconscious, only “acting” like he was”); Anita Hassan, When Byron Williams Died Saying, ‘I Can’t Breathe,’ Few Protested. Now His Family Is Fighting for Justice, NBC News, June 18, 2020 (telling officers “I can’t breathe” at least 17 days before dying); Lee Sanderlin & Michael Hewlett, ‘Help Me,’ John Neville Pleaded, Winston-Salem J., July 9, 2020 (“The officers didn’t let him go, one of them telling him at least twice “Come on, buddy, if you can talk, you can breathe,” according to three independent sources familiar with the investigation.”).
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death). Less-lethal force is intended to create temporary and minimal pain in order “to gain
compliance, restore order, [or] temporarily incapacitate dangerous persons.” (ECF No. 26-2 at 83).
Indeed, the Columbus Division of Police (“CPD”) has various policies dictating which of these
crowd-control tactics officers may use and under what circumstances they may use them.30 This
Court heard from multiple departmental personnel, including from Mayor Andrew Ginther,
Defendant Deputy Chief Quinlan, and several officers on the proper use of force and less-lethal
weapons.31
1. Use of Force Policy
CPD policies define “use of force” as: “The exertion of energy or the actions of personnel
in the performance of their duties used to direct or control another’s movements or actions. A use
of force may be implemented to control resistive or aggressive behavior toward the involved
personnel, other personnel, third parties, or property.” (Pl.’s Ex. 8 ¶ 1(A) (emphasis added)).32
To determine if force is authorized in a crowd-control scenario, a 2017 CPD training
manual instructs officers to “identify[] and isolate[e]” unlawful behavior from lawful behavior.
(Pl.’s Ex. 12 at 10).33 CPD officers are trained to be “mentally prepared to use force.” (Mabry Dep.
30 CPD’s Emergency Operations and the Directives Manuals provide instructions with respect to field force operations, including riot gear, civil disturbance tactics, and operating guidelines for riot-control munitions. (See generally Pl.’s Ex. 5). 31 Witness and Defendant Thomas Quinlan is the Deputy Chief at the Columbus Division, Support Services Division, and has been with the division for thirty-two years. He served previously as Chief of the Columbus Division of Police. 32 In addition, there are eight levels of force the Division of Police follows. Level 0 is officer presence, verbal, and non-verbal commands, flashbangs, baton rounds, and the use of the Long Range Acoustic Device (“LRAD”) warning tone; Level 1 is empty hand control, grounding techniques, and joint manipulations; Level 2 is chemical spray; Level 3 is electronic device, such as a taser; Level 4 is “hard empty hand control,” e.g., strike, punch, kick; Level 5 is use of an impact weapon, e.g., baton or flashlight; Level 6 is a police K-9 bite; Level 7 is less-lethal weapons, such as beanbags or multiple baton rounds; and Level 8 is deadly force. 33 CPD trains lieutenants to use five tactics in crowd-control scenarios: (1) monitor; (2) contain; (3) block; (4) disperse; and (5) arrest. (ECF No. 26-2 at 24). To “monitor” is to “[w]atch the crowd’s progress and development . . . [to] gauge their intent.” (Id. at 25). To “contain” refers to “[p]erimter control,” and “[c]onsists of restraining a large number of individuals within the area, containing any further aggressive activity. (Id. at 26). To “block” amounts to a “[p]hysical denial of a crowd’s advance upon an area or facility,” and is deployed via riot formations or barricades. (Id. at 27). To “disperse” is to “fragment a crowd,” but officers are warned “that this technique may spread lawlessness rather than
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at 147). Even seemingly innocent behavior by a demonstrator—e.g., bringing gas masks, oven mitts, backpacks, bandanas, or half masks—might conceal unlawful intent. (Pl.’s Ex. 14; ECF No. 26-3 at 32). Likewise, a 2020 training to new CPD supervisors instructed that not all protestors standing with their hands raised are peaceful. And children, the elderly, and individuals with disabilities might be used to control the protestors’ message to maximize shock and awe. (Mabry Dep. at 164). Signs made with heavy sticks or written or verbal statements (e.g., “Fuck the Police, Pigs Must Die”) carry the potential for a violent crowd. (ECF No. 26-3 at 32).
Other indicia officers are trained to notice are whether the chants are “calm” and “structured” (demonstrating “good behavior”) or “erratic,” “excessively loud,” or “not organized” (demonstrating “bad behavior”). (Id. (instructing that good behavior is where laws are obeyed; bad behavior is where laws are not obeyed)).
2. Chemical Irritants Columbus police officers used dispersal irritants, including pepper spray and CS gas (“tear gas”), with regularity during the 2020 protests. (Pl.’s Ex. 149 (providing instructions on use); Pl.’s Ex. 141 (showing scores of individuals coughing, apparently experiencing the effects of a chemical spray); Pl.’s Ex. 126 (officers on bikes, spraying congregants); Pl’s Ex. 110-B (protestors yelling “hands up, don’t shoot,” followed by officers spraying the crowd); Pl.’s Ex. 117 (officers spraying); Pl.’s Ex. 105 (same)). CPD policy on the use of these sprays is memorialized in Directive 2.04, “Chemical Intermediate Weapons Regulations,” and subsequent implementing amendments. (Pl.’s Ex. 9). The policy requires officers to provide notifications before deploying irritants. Typically, an
reduce it[,] so it is important to control the escape routes.” Dispersing also includes proclamations, shows of force, use of riot formations, and chemical or specialty munitions that are done upon the order of a ranking person. (Id. at 28).
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officer should first give three warnings, but, as Deputy Chief Quinlan testified, “[t]hat’s not always possible.” (ECF No. 48 at 51). Further, “[t]he notifications should be made in a manner which the participants in the crowd should reasonably be able to hear and understand.” (Pl.’s Ex. 16 ¶ 5(a)). The use of chemical spray should only “be directed at the persons participating in the violent conduct, not at the group in general.” (Id. ¶ 6).
These dispersal irritants are sometimes deployed by a hand-thrown canister or by direct spraying. Pepper spray is deployed through spray canisters or Mark-9 propellant systems designed to disperse larger crowds. Tear gas is often deployed through canisters, rolled, thrown, or placed near the crowd to-be-dispersed. “The use of a chemical irritant deployed by a gas gun or a chemical irritant grenade being thrown or rolled requires the approval of a lieutenant or higher authority.” (Pl.’s Ex. 16). After deploying a chemical irritant, law enforcement personnel should “make a reasonable effort to decontaminate exposed persons once the situation is under control,” such as by flushing the individual’s eyes with freshwater or seeking medical attention. (Id. ¶ 7).
In the wake of the Columbus protests, Mayor Ginther instructed then-Chief Quinlan34 to change departmental policy on the use of force, reflected in Amended Directive 2.04. (ECF No. 46 at 184). “The changes include prohibiting the use of tear gas to disperse a crowd and prohibiting the use of chemical spray to disperse a non-aggressive, non-violent crowd.”35 (ECF No. 10; Quinlan Aff. ¶ 14). But the exceptions are significant (and arguably swallow the rule). For instance, a key exception allows officers to use chemical irritants to clear a congregation from a traffic way, i.e., “every street or highway” that congregants “have no legal right of access to or from.” (Quinlan
34 In January 2021, Mayor Ginther demoted then-Chief Quinlan, stating that the latter had lost the faith and trust of the community and proved unable to change the culture of the division of the police. (ECF No. 46 at 150). 35 On November 11, 2020, Columbus City Attorney Zach Klein and Defendant Chief Quinlan announced “a recent policy change issued by the Columbus Division of Police related to the process of arresting and incarcerating individuals who commit nonviolent misdemeanors, such as theft or trespassing.” (ECF No. 6 at 18).
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Aff. ¶ 14 (citing O.R.C. § 4511.01(CC)).36 In addition, the trigger for officers’ use of force is if the crowd is violent, aggressive, or resistive. But these terms are not crisply defined in CPD’s use of force policy or elsewhere. As Deputy Chief Kuebler explained in his deposition:
Q. Is there something in the division’s policies that explains what it means for protestors who are in the street to be aggressive? A. That remains very unclear to us in the division. (Kuebler Dep. 148:15-19).
3. Impact Munitions Wooden baton rounds, also known as knee knockers, are less-lethal projectiles loaded in a rotary gun and are designed to avoid a hand-to-hand scenario. (Pl.’s Ex. 122; Pl.’s Ex. 5). These launchers look like a regular assault rifle to the untrained eye, except they fire wooden projectiles in a 4.8-inch casing. (See ECF No. 26-2 at 86; Pl.’s Ex. 6). CPD’s grenadier37 trainer John Gagnon is responsible for training the officers on how these munitions are deployed. A 40 mm wood baton rotary gun fires three wooden pellets at once, while the 37 mm gun fires five wooden pellets. (Id.). Since the 40 mm fires two fewer knee knockers than its counterpart, when using a 40 mm gun, Officer Gagnon states in a training video: “We just have to fire more of them.” (Pl.’s Ex. 149). Under CPD policy, the knee knockers should be skip-fired on the ground in front of protestors, from a distance of 30–50 feet, rather than direct-fired. (Pl.’s Ex. 149 (“[W]ith the old 37 mm, we direct-fired them often . . . But our policy is that they are not to be direct-fired.”); see also ECF No. 48 at 21–22 (“[A] weapon that is designed to . . . skip-fire them downrange.”)). The
36 An additional change required officers working in civil unrest situations, like protests, to wear traffic vests over their riot gears, and mark helmets and vests with badge numbers. The body-worn cameras must be mounted on the traffic vest. (Quinlan Aff. ¶ 15). 37 A grenadier is an officer “specifically designated for the throwing of grenades and operating less lethal grenade launchers and sometimes assault operations. Grenadiers may also often lead entry into a crowd” by using “less lethal munitions. (ECF No. 26-2 at 81).
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skip-fire policy allows for a more effective crowd-control device; as Officer Gagnon noted, directfiring targets an individual, but skip-firing could “hit him, and him, and him, and maybe bounce over and deter more people. So, the effective use of this is on the ground, in front of the crowd.” (Pl.’s Ex. 149). Next, officers are also trained on where a knee knocker round should be aimed on the recipient’s body. (Pl.’s Ex. 149 (stating that the spine and kidney areas should not be intentionally targeted; conversely, hard-bony areas like the knees, elbows, and shoulders “could cause an injury . . . so [it’s] okay to hit th[ose areas], but we’re not targeting them . . . not trying to cause a permanent injury.”)).
4. Bikes, Horses, and Kettling Officers also effectuate crowd control dispersals with bikes, horses, or physical shows of force. Notably, CPD bike training instructs officers to use bikes as a barrier between the protestors and police officers, with the bikes turned sideways. But evidence from the hearing indicated this rule was often flouted, sometimes apparently with the go-ahead of a higher-up. (See Pl.’s Ex. 105 (showing officers riding bikes forward into protestors repeating, “Get out of the road”); ECF No. 48 at 64; see also id. at 193 (“As multiple protestors began taking over High Street from the east sidewalk, they began to close in on the backside of the bike squad, so the squad had to fall back and reposition and make a bike barricade at the south side of the intersection across High Street.”)).
D. The Protests Here, the protests began in earnest on May 28, 2020, and lasted throughout the spring and summer, including June 21 (“The Father’s Day Demonstration”). Witnesses who attended the protests characterized the demonstrations as both peaceful and tense. Multiple witnesses testified to their physical and emotional injuries suffered at the hands of CPD officers while exercising their fundamental rights to assemble and protest. (ECF No. 1 ¶ 17). Others—including officers and a
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TV reporter witness—testified differently, contending that the use of force matched the threat the demonstrators posed. The submitted evidence both supports and undermines these testimonies.
1. Thursday, May 28, 2020 On May 28, 2020, Plaintiffs and other demonstrators in Columbus gathered downtown and throughout the city to generate widespread public attention to past and continuing police violence directed overwhelmingly at communities and individuals of color. (ECF No. 1 ¶ 3). An incident action plan (“IAP”) “specifies the goals for [CPD] . . . and additional direction for the field force units.” (Pl.’s Ex. 2 (citing Weekley Aff. ¶ 3)). The Columbus Division of Police did not have an IAP for the first day of protests but made one for the following days. (Pl.’s Ex. 1 (citing Woods Aff. ¶¶ 4–5)). In addition, the Division received reports that there would be two protests the evening of May 28: one at Livingston and Lockbourne and the other downtown. (Id. ¶¶ 6–7). At the preliminary injunction hearing, Plaintiff Terry Dean Hubby, Jr. testified that he and a coworker spontaneously joined the protests on May 28 after getting off of work at a warehouse near Livingston and Lockbourne. (ECF No. 48 at 215). Mr. Hubby made a sign with markers and poster boards that other protestors had brought—his sign read, “American Refugee,” a term which connotes a sense of alienation and foreignness some citizens experience while in their own country. (Id. at 217). Mr. Hubby testified that no protestors were blocking traffic, though some demonstrated in the street, nor did he observe any conflict between protestors and police. (See also Woods Aff. ¶ 7 (“I saw protestors blocking the street. We were able to clear the street with no uses of force and no arrests.”)). Downtown, crowds were larger, and clashes between congregants and police, more frequent. (Id. ¶ 9 (“Because of the scope of the unrest, I ordered more officers downtown and had
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them put on riot gear.”)). Officer Anthony Johnson testified that he was dispatched downtown around 2:00 p.m. (ECF No. 51 at 68 (discussing the atmosphere near Broad and High Street)). He recalled an unruly and disobedient crowd, holding signs that said things like, “Defund the police,” or “‘F’ the police.” (ECF No. 51 at 69 (recalling orders to disperse were unheeded or answered with, “fuck you, and fuck the police”)). Mr. Johnson recalled that protestors surrounded his and other officers’ cruisers. (ECF No. 51 at 75). After telling congregants to leave and stop banging on the cruiser, the officers deployed the Mark 9, or pepper spray. (ECF No. 51 at 76 (“[A] Mark 9 is a big canister of pepper spray meant to disperse large crowds”); Pl.’s Ex. 145).38
Officer Johnson joined a police barricade line at the northern part of the Broad and High Street intersection, facing south. It was still daylight. “At this point[,] they got much more violent. They began like throwing objects at us[,] such as rocks, bricks, and water bottles. People were walking up to us with bottles and opening them and throwing, like, unknown liquids on us, yelling in our face.” (ECF No. 51 at 79; see also Woods Aff. ¶ 13 (stating protestors ignored a dispersal order, though they had a clear exit)). A senior member of the department ordered officers to change into riot gear; the crowd continued to grow; and this standoff continued. (ECF No. 51 at 82; ECF No. 50 at 184 (stating May 28 was the first day that SWAT deployed)).
By 6:00 or 7:00 p.m., “[t]hings were definitely tense,” with a heavy police presence, according to witness Kayla Merchant. (ECF No. 49 at 149, 153 (“Mostly it was, you know, just people doing general protesting activities.”)). Maxwell Garrison, a student at Ohio State University and assistant campus editor of The Lantern, who documented the protest near the corner of Broad and High Street, agreed that much of the evening was nonviolent. (ECF No. 49 at 91–92, 94 (testifying that he arrived around 9:40 or 9:45 p.m. and witnessed three or four water bottles thrown
38 Officer Johnson’s body-cam footage, running from about 8:00 p.m.–9:15 p.m. on May 28.
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from deep in the crowd towards the police officers); see also ECF Nos. 23, 24 (recalling that there were a couple of hundred protestors near Broad and High Street by 9:30 p.m.)).
Bryant Somerville, a Channel 10 WBNS (“10TV”) reporter, arrived at Broad and High Street to report on the protests on May 28, 2021.39 He arrived a little after 8:00 p.m. and left around 12:30 a.m. Friday morning. He described a tense atmosphere with police clad in riot gear and about ten feet in front of them, a line of protestors. He testified: “There w[as] chanting[], there w[as] yelling, there was a lot of yelling. Raised voices. But as far as the term peaceful protesting goes, it was peaceful . . . Everybody has a voice[,] and they were letting it be heard.” (ECF No. 51 at 9).
The tension rose as the night drew on. Mr. Somerville said that protestors “rows and rows deep” threw objects at officers, including bottles of water, jugs of water and milk, shoes, and small-grade fireworks, characterizing the throwing as “frequent.” (Id. at 11). Mr. Somerville continued, recalling that protestors would sometimes get right in the officers’ faces. (See generally Defs.’ Ex. 24 (recording bottles and jugs of water thrown at the police, as well as officers spraying the crowd with irritants)). Officers, Mr. Somerville said, showed restraint. (Id. at 12 (“They were very, what I would consider, very calm.”)).
Witness Rachel Wenning recalls demonstrators throwing water bottles toward the police at an estimated rate of one per minute. (ECF No. 47 at 147). But most of the water bottles hit the ground, another protestor, or flew over the officers’ heads. (Id.). Ms. Wenning did not see any water bottle hit an officer without the officer hitting it down first, nor did she observe any visible injuries caused by the water bottles. (Id. at 148 (explaining the throwing was not “constant”)). Ms. Merchant agreed: though she did not see any behavior from the protestors that would have justified the deployment of chemical agents, she did witness a couple of water bottles thrown towards the
39 Mr. Somerville took two videos, one on May 28, 2020 (Defs.’ Ex. 24) and another on May 29. (Defs.’ Ex. 25).
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officers. But, similarly, she did not observe any bottles hit the officers. (Id. at 49; see also Pl.’s Ex. 122 (showing a water bottle thrown towards the officers, hitting the ground before the police line)).
Throughout the hour and fifteen minutes that Mr. Garrison, the student journalist, was present, he observed that CPD’s “pepper[-]spraying became a bit more frequent. On the protest side of it, not much changed.” (ECF No. 49 at 96; ECF No. 47 at 150 (“[T]here were people who started to be pepper[-]sprayed by the police.”)). To flee the pepper spray, Ms. Wenning ran from Broad and High Street towards the intersection of High Street and State Street, where there were 40 or 50 protestors in the street and on the sidewalk. Around that same time—between 9:00 or 10:00 p.m.—Duck Bardus, a volunteer street medic, set up a medic station to treat those injured by chemical agents.40 But within twenty minutes, the station itself was sprayed, rendering it useless for treatment purposes.
Closer to 11:00 p.m., there were “hundreds” of people downtown still. (ECF No. 51 at 21). Mr. Somerville repeatedly described what he viewed as a game of cat-and-mouse: “These protestors would go places[,] and police would respond.” (Id.).
A troubling video shows an electric scooter hurled from deep in the crowd of congregants towards the line of officers around 10:00 p.m. A few police officers blunted the scooter’s impact mid-air. (Id. at 95; see also Defs.’ Ex. 26 (showing scooter hurled towards officers at 1:17:10 into
40 Duck Bardus is a volunteer street medic—a term used to refer to people who have completed a 20-hour training that covers first aid, CPR, and some other tailored training around typical injuries seen in protest environments. (ECF No. 50 (explaining he typically goes to protests to look for ailments like dehydration, hypothermia, or asthma attacks)). Since his certification in 2016, Mr. Bardus has provided first-aid for a range of protestors, including those with whom he disagreed politically. (ECF No. 50 at 31 (recalling providing aid at a conservative rally to an individual who was face down on the Statehouse lawn)). Mr. Bardus attended multiple days of protest to serve as a street medic; he was not there to protest. (ECF No. 50 at 33 (“My red pack is red and says first aid on it. I try to be as loud and obnoxious about that as I can [to distinguish himself]”)). Typically, the medics operate in a buddy system, where one is treating injured folks, and the other is standing sentinel to assess any incoming dangers.
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video, followed by officers spraying the crowd with irritants); Defs.’ Ex. 29 (showing officers’ protest-related injuries, including a May 28 injury from a scooter thrown by a protestor)).41
Around that same time at Broad and High Street, a surveillance camera video shows a line of officers (some with bikes, some mounted on horses, nearly all in riot gear) facing protestors who are sitting in the street. (Pl.’s Ex. 113; see generally Pl.’s Ex. 144). An officer, presumably with some sort of authority, waves her hand, prompting the others to move the police line forwards, now more than a foot away from the sitting protestors. Officers spray the demonstrators’ faces with a chemical irritant, causing one individual to crawl away in pain. (Pl.’s Ex. 113; see Pl.’s Exs. 119, 120, 121 (same)).
By midnight, a body-worn camera video shows a handful of protestors in the street or on the sidewalk at the intersection of West State and High Street. (Pl.’s Exs. 122, 122-A). CPD officers stand facing the demonstrators. (Id.). Some protestors shout various invectives at the officers; others throw water bottles towards the officers in riot gear, with the visible ones landing before the line of officers. Six or seven protestors kneel or stand in the street with their hands in the air—in the familiar, “hands up, don’t shoot” position. Four minutes later, an officer throws, apparently unprompted, a flashbang device. (Pl.’s Ex. 122). Two men remain in the street after the explosion, and officers throw another device. Fifty seconds later, officers say, “knockers, knockers, knockers,” and an officer fires wooden projectiles at the individuals remaining in the street. Additional riot gear is handed out to officers, and an emergency announcement to leave the area sounds.
41 Officer Johnson himself was hit with an electronic scooter. (ECF No. 51 at 82 (“The weight and the force of the scooter kind of wrenched my arm back resulting in me tearing my rotator cuff and suffering a back sprain and a neck sprain”); see also id. at 84 (“[A] majority of the individuals there were not peaceful, meaning they weren’t listening to our commands, they were screaming at us, throwing stuff at us and throwing stuff on us.”) (emphasis added); Pl.’s Ex. 75 (injury report)).
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Also, around midnight, Ms. Wenning and other protestors saw the officers line up side-byside with shields, from which she deduced, “they were probably going to come down the street and force everyone out of the street.” (ECF No. 47 at 156). Indeed, an officer’s body camera footage captured a dispersal order, roughly transcribed as follows: “This is an emergency. The area must be cleared. If you remain in the area, you will be subject to arrest, and chemical agents may be used against you. You must leave the area now.” (Pl.’s Ex. 122). Mr. Somerville of 10TV said that there were multiple announcements over the loudspeakers telling protestors to leave the area. (ECF No. 51 at 13).
After hearing the dispersal order, Ms. Wenning and others walked westward, into an alley “to get away.” (ECF No. 47 at 157 (“I was walking away, so I felt I was leaving the area.”)). Once she and others got into the alley, she “heard a clink and . . . another like really loud explosion from another flashbang that had been thrown into the alley. And that one had tear gas in it because I inhaled some of it.” (Id. at 156 (stating that the tear gas was “very thick,” making it difficult to “breathe in or out”); see also Pl.’s Exs. 122, 122A (taken at the intersection of State and High Street, appearing to show direct-fired projectiles); Pl.’s Ex 122 (showing an officer throwing a device into an alleyway near State Street and Front Street)).42
2. Friday, May 29, 2020 On May 29, the Division of Police changed its staffing levels to a phase-two mobilization, with all sworn personnel working 12-hour shifts. (Woods Aff. ¶¶ 21, 26, 30). That day, Deputy Chief Quinlan also met telephonically with major city chiefs around the country, including the Minneapolis police chief. (ECF No. 48 at 122). Mr. Quinlan stated: “[W]e had information from the FBI that people were being paid to create chaos or damage or vandalism or looting . . . . [W]e
42 The video also shows a flash-bang device deployed at 4:07 and again at 4:25 against protestors standing in the street.
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had a meeting with major city chiefs [about] what was occurring all across the country and started to get an indication that we needed to be on high alert.” (ECF No. 48 at 122, 127). Officer Ohl, a member of the Columbus Division of Police in the SWAT section, recalled that his team was dispatched to the protests on May 29 “[t]o support field-force operations.” (ECF No. 50 at 189).
The evening proved to be a terrible one, with Plaintiff Mixon’s and Plaintiff Hubby’s experiences serving as microcosms. Neither Ms. Mixon nor Mr. Hubby was there to create chaos, damage, vandalism, or to loot. Yet, both suffered lasting physical and emotional harm. In summary, Plaintiff Hubby had his kneecap shattered by a CPD-deployed projectile at State and High Street about an hour and a half before Plaintiff Mixon was repeatedly pepper-sprayed and had her knee broken by a separate group of Columbus police officers.
a. Plaintiff Terry Dean Hubby, Jr. After spontaneously attending the previous day’s protest, Plaintiff Hubby returned to the protest—this time, downtown—on May 29 around 8:45 or 9:00 p.m. (ECF No. 48 at 219–20). There was not much traffic, and “about a hundred” protestors were “just chanting and holding signs.” (Id. at 221–22). Mr. Hubby did not see any destruction of property, violence, or vandalism. A video he recorded shows what happened subsequently. Plaintiff Hubby is walking along the sidewalk of State Street and High Street. (Pl.’s Ex. 133). All the sounds characteristic of a modernday protest are present: honking, screaming, yelling, and sirens. Plaintiff Hubby approaches the corner and stands on the sidewalk. Shortly after reaching the corner, he is struck and injured by a projectile. (Id.). The timing is critical. The video reveals that the police begin to shoot less-lethal projectiles while the CPD loud system sounds a dispersal order. In other words, there was no time for protestors to react. (ECF
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No. 48 at 226–27 (stating that only Plaintiff Hubby heard a dispersal announcement after he was hit)). The projectile rendered Plaintiff Hubby unable to stand. (Id. at 225–26 (“It kind of felt like a hammer or like a steel bat or something was hitting it . . . [My knee] was broken into many little pieces . . . It kind of looked like a puzzle.”)). A group of twelve Good Samaritans, strangers to Plaintiff Hubby, dragged him around the corner, out of the way of the raining munitions. (Id. at 233 (“Q. How could you tell they were still shooting? A. Because you could hear the shots.”)). The protestors-turned-medics fashioned a splint for Mr. Hubby’s knee before obtaining a rental bicycle and transforming it into a gurney so that he could be transported without over-exerting his knee. (Id. at 234 (“As they were running, a helicopter was following us.”)).
Eventually, Mr. Hubby was transported to the hospital and had surgery, resulting in twenty pins and a plate in his knee. Plaintiff Hubby, a 31-year-old man, no longer can walk more than a half-mile without significant pain—an improvement from his condition for the first four to five months post-shooting, when he was unable to walk at all. His knee swells regularly. His balance suffers. (Pl.’s Ex. 77 (containing photographs from February 2021 of injury)). As to whether Plaintiff Hubby would attend a future protest, he answered: “No sir . . . I just don’t think it’s a good idea now.” (ECF No. 48 at 38).
b. Plaintiff Aleta Mixon Plaintiff Mixon, a patient support assistant, traveled to the vicinity of the Statehouse in the evening, around 9:00 p.m. (ECF No. 47 at 58). She was not there to protest. Instead, she was attempting to locate her daughter, a 21-year-old who joined the demonstrations. Plaintiff Mixon approached a female officer in riot gear, asking if the officer would assist her in locating her daughter. Plaintiff Mixon recounted the following: Q. Okay. You mention you saw a female officer. Did you approach her?
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A. Yes, sir, I did . . . I noticed that there was a female officer that was in riot gear. She had one of the helmets on[,] but her face shield was raised up. And her fade was blond[,] kind of like mine. So[,] I approached her[,] and I asked her if she could assist me with helping me find my daughter. The female asked me did I know where she was located, and I told her the last location of me speaking with her was on Broad and High, on the corner of Broad and High Street.
Q. So[,] what happened after . . . .
A. Before the conversation could continue, I noticed that someone was coming up from my left side . . . I noticed that it was a male officer that sprayed me with mace as I slightly turned my face. And I began to ask why did he do that. I could hear the female officer say . . . why the fuck did you do that? She was just asking for help. She was asking me to help her find her baby. She just wanted help finding her daughter.
Q. Okay. [T]ell us what happened next.
A. Then the officers started to -- the female officer eventually left with her colleagues. I didn’t see her or hear her anymore. And the male officers then began to ask me to leave. And I just was very concerned with finding my daughter. So, as authorities, I thought they would assist me in helping me find my daughter. So[,] I just was very concerned and asking the male officers if they could help me find my daughter, that I repetitively said that I just wanted to find my baby. And I was not there, for the record, to protest at all. I just wanted to find my daughter.
(Id. at 67–68).
This treatment worsened. She kept seeking help, but the officers “seemed to not care . . .
They told me to leave. They just kept telling me to leave. Eventually I was beginning to . . . leave
as one of the male officers pushed me.” (Id. at 70). She continued to try to depart the area, an effort
which officers continued to thwart. Near West Broad Street and High Street, Plaintiff Mixon
recalled:
[O]fficers were – they were following me and just telling me to leave as I was already walking and leaving. So[,] I turned around just to tell them like I was just wanting help in finding my daughter, I just wanted to find my baby, that’s it; I wasn’t here to protest. And as I was walking, one of the officers sprayed me from behind again [hitting the right side of her face]. I proceeded to run into now the street on West Broad Street[,] where there w[ere] several officers. And I began to run to them screaming for help. And as I was running screaming for help, I kind of like ran through because I saw -- I ran through the crowd of officers screaming for help. As I was screaming for help, I began to scream[,] I’m leaving. So[,] I was telling the officers I was leaving.
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[After being sprayed a second time,] I noticed that the officers w[ere] chasing me . . . So[,] I let them know I was obeying their commands. So[,] I ran back to the sidewalk. (Id. at 71–72 (emphasis added)). The second spraying was painful. Her eyes burned, and her vision blurred. She was unable to continue her search for her daughter. She sat down on the sidewalk, between High Street and Third Street, screaming for help. She discerned two officers were walking towards her in riot gear; she hoped help was on the way at last. Instead, CPD officers sprayed her again—now, for the third time. (Id. at 73). Immobilized on the street curb, she tried to stand up. But this awful tale was still far from over: And one of the officers pushed me down so hard off the curb. And once again, pardon my language, Your Honor, and members of the court, he stomped on my kneecap, my left kneecap, and stated to me, That’s what you get for being down here, you black, protesting bitch.43 That’s what the fuck you get for being down here, you black protesting bitch . . . . I began to scream, You broke my leg – that he broke my leg, basically, because I felt a snap and intense pain. It happened so quickly that the next thing you know, I was getting snatched back up onto the sidewalk[,] where people began to try to help me walk and get away. (ECF No. 47 at 74–75). A 22-second video introduced at the hearing shows a portion of these events. (Pl.’s Ex. 101). In it, Plaintiff Mixon is shown near two or three officers. She walks away. The individual recording provides narration of increased urgency: “This lady has done nothing. This lady has done nothing. They have done nothing wrong.” (Id.). At this point, Plaintiff Mixon is peppersprayed while walking away from the officers, stumbles into the street while an officer continues in pursuit. The narrated video continues: “They have done nothing wrong. They did nothing wrong. Are you kidding me?” (Pl.’s Ex. 101).
43 There was some ambiguity as to whether the officer said, “you black bitch” or if he omitted the word “black.” (Compare ECF No. 47 at 74, with id. at 99). Either way, that statement is atrocious.
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A body camera video shows the same events, timestamped at 10:08 p.m. (Pl.’s Ex. 147). Plaintiff Mixon approaches the officers, yelling repeatedly and unmistakably that she is trying to find her daughter—imploring that they help. An officer shakes a can of chemical spray as Plaintiff Mixon draws near. A separate officer pushes her away. While Plaintiff Mixon tells the bodycamera-wearing officer, “I just want to find my daughter. I don’t think all officers are bad,” a separate officer comes and pushes her away again. (Id.).
Approximately one minute into the body camera video, Plaintiff Mixon is heard screaming after being sprayed from behind. The officers continue east on Broad Street, spraying individuals who are standing still or walking away from them. Approximately 2 minutes and 5 seconds into the video, Plaintiff Mixon can be seen and heard falling from the sidewalk into the street. An officer to her left then sprays her with chemical spray while she is on the ground and pushes her from behind as she attempts to stand. The officer whose body-worn camera is recording walks past Ms. Mixon as she states that her leg is broken and asks for help. He returns at approximately 3 minutes, 20 seconds into the video as Plaintiff Mixon is speaking to another officer, Officer Frank Leeman, who is assisting her with her injuries.
Plaintiff Mixon is heard, pleading, while surrounded by officers: I don’t want to die. I don’t want to die. I don’t want to die. I just came to find my daughter . . . I don’t want to die. I don’t want to die. I don’t want to die. Please, Frank, don’t let me die. Please, Frank. Please, Frank, Please. Please, Frank. I can’t see. Please help me . . . Frank, Frank, I can’t see, Frank. I don’t think all officers are bad . . . Please. Please . . . I just came to find my daughter. (Pl.’s Ex. 147). Plaintiff Mixon never located her daughter. But, she recalls: “[S]omehow she ended up finding me.” (ECF No. 47 at 81). Ms. Mixon was then taken to the hospital, where she had emergency surgery on her knee and was hospitalized for five days. (Pl.’s Ex. 73 (showing her scar)). Whether she would attend, or perhaps, more accurately, be in the vicinity of a protest again,
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Ms. Mixon testified that she would not: “If I wasn’t afraid of police officers before, I’m nervous about them now.” (ECF No. 47 at 89).
c. Other Events on May 29 Elsewhere on May 29, there was, indeed, the sort of chaos and vandalism that then-Chief Quinlan feared. Testimony from CPD officers evinced their difficulty in controlling a growing protest. Officer Johnson arrived during daylight on May 29 to a “much more organized” crowd “with like fatigue-style clothing, tactical-style clothing on, backpacks full of, like, items with frozen water bottles now, meaning they went downtown with frozen water bottles, chunks of rocks in their backpacks, gas masks.” (ECF No. 51 at 90). SWAT-team member Officer Ohl recalled arriving downtown around 9:00 or 9:30 p.m., where individuals were graffitiing the Ohio Supreme Court building. (ECF No. 50 at 188 (testifying those individuals ran away when the officers turned their lights and sirens on)). Commander Smith Weir testified to the looting from that evening. (ECF No. 52 at 129). Mr. Somerville of 10TV arrived downtown around 5:30 p.m. and departed at 8:00 p.m. He recalled seeing protestors throwing objects at the police and officers pepper-spraying the crowd near Broad and High Street. (ECF No. 51 at 29). Mr. Somerville testified at the hearing: “[A]nytime I saw pepper spray used, it was as a measure to control the crowd[,] and it was not unwarranted.” (Id. at 30). Yet, in his video from the day prior, he is recorded saying: “Oh, wow, we’ve just been pepper[-]sprayed for no reason.” (Defs.’ Ex. 24 (at 46:29)). In terms of which came first—protestors throwing items towards police or police spraying protestors with irritants and munitions—the record is mixed. Commander Weir testified that the use of crowd-control devices followed protestorinvolved violence: “[N]othing would happen when they weren’t throwing things and objects,
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whatever. But obviously[,] at different times[,] there would be objects thrown at our officers, and that’s when we would authorize the use of mace to move the crowd or try to disperse the crowd . . . [I]f the crowd is being peaceful, we’re not using mace.” (ECF No. 52 at 131–32). Mr. Somerville’s recordings also show numerous standoffs between police and protestors, each with a familiar pattern of congregants throwing objects (water bottles or milk jugs, and rarely, fireworks) and the police engaging in direct and indiscriminate firing of munitions and chemical irritants. (Defs.’ Exs. 24, 25). Other times, the timing was reversed: “Every time [the officers] spray, more and more bottles come their way.” (Defs.’ Ex. 24).
Other evidence points towards the department’s reflexive reliance on pepper spray. A body-worn camera video that evening shows a CPD supervisor stating to the officers that “the group at Broad and High is going to move. They’re not going to stay there . . . Tell them to move . . . We are going to move them by any means necessary⸺reasonably necessary. Everybody got that? Get your mace ready.” (Pl.’s Ex. 123-A).
There were multiple other instances of the use of less-lethal tactics without apparent provocation. One video shows a SWAT officer deploying chemical spray against two people standing on the sidewalk, who appear to be recording the officers on their phones. (Pl.’s Ex. 107). A body-worn camera at the corner of Broad and Front Street shows a supervisor directing officers that they will use a Mark-9 chemical spray against the protestors nearby “on the bang,” i.e., once an officer activated a noise signal. (Pl.’s Exs. 110-A, 110-B, 123-C). A video at the intersection of Broad and High Street shows an officer throwing a dispersal device into protestors standing in the street; much of the crowd flees, and two additional munitions follow. (Pl.’s Ex. 115; see also Pl.’s Ex. 116 (throwing an explosive device towards protestors holding signs)).
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The same group of officers who were told to “get [their] mace ready” at roll call are now mounted on bikes, riding into individuals standing on the sidewalk while screaming at them to “move.” (Pl.’s Ex. 123-B). The body-camera-wearing officer sprays chemical irritants at random, hitting individuals standing peacefully on the sidewalk—and then yells, “clear the area!” (Id.). Some sprayed individuals have their hands up and are asking why they are being sprayed. All of these individuals were standing on the sidewalk. (Pl.’s Ex. 123-B; see also Pl.’s Ex. 123-C (explosive devices and large amounts of chemical spray); Pl.’s Ex. 110-B (same event); Pl.’s Ex. 125 (throwing a grenade across Broad Street toward the sidewalk, while another officer deploys chemical spray at a car); Pl.’s Ex. 126 (spraying protestors directly in the face with chemical irritants)).
Plaintiff Torrie Ruffin, a special education teacher’s assistant, summarized the night of May 29 well: “[T]here was peaceful protesting going on, there was some police aggression and some police push towards the protestors. And the situation turned, I guess, chaotic or dangerous.” (ECF No. 46 at 125 (summarizing her friends’ recounting)).
3. Saturday, May 30, 2020 On May 30, Governor Mike DeWine called in the National Guard; Mayor Ginther declared a State of Emergency and instituted a 10:00 p.m. curfew. (Quinlan Aff. ¶ 7). The tension of the last two days continued. (Pl.’s Ex. 103 (officers firing projectiles, striking individuals); Pl.’s Ex. 104 (bowling tear gas canister into crowd); Pl.’s Ex. 108 (spraying kneeling individuals on May 30 or 31); Pl.’s Ex. 112 (spraying irritants directly at individuals who are fleeing a prior deployment of spray); Pl.’s Ex.117 (similar); Pl.’s Ex.118 (similar); Pl.’s Ex. 114 (similar, including against a woman using a mobility device); Pl.’s Exs. 136, 137 (similar, including spraying those fleeing or turning to flee); Pl.’s Ex. 127 (officers on horses deploying tear gas, with
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others spraying individuals on sidewalks); Pl.’s Ex. 141 (recording High and Broad Street in the afternoon, showing scores of individuals coughing, evidently fleeing the deployment of a chemical irritant); Pl.’s Ex. 142 (firing projectiles at crowd on street and sidewalk, with a videographer tackled by an officer); Pl.’s Ex. 42 (using bicycle to shove woman who has been yelling, and then using chemical spray against her)).
In one of the more shocking series of events, an officer grabs a man’s gas mask off of his head from behind, while, notably, the man was walking away. The man reacts and fights back; other officers tackle him to the ground. (Pl.’s Exs. 127, 128, 138).
At 12:10 p.m., a body-worn camera shows the officer who grabbed the gas mask off of the individual’s head celebrating; he fist-bumps another officer and giggles gleefully: “I took his mask off . . . He didn’t like it.” (Pl.’s Ex. 138).
This Court heard similar stories from other witnesses and Plaintiffs present on May 30, reviewed below.
a. Plaintiff Summer Schultz Plaintiff Summer Schultz, a master-maker artist, attended the protests on High Street, around 10:30 a.m., with her wife, Leanne, and friend, Tori. (ECF No. 49 at 118). The atmosphere was “beautifully painful,” with an overwhelming sense of community. (Id. at 119). Law enforcement presence was large and included rooftop sharpshooters, bicycle officers, and “[a]rmy Reserve or military people.” (Id. at 120). The trio listened to speeches on the lawn at the Statehouse before hearing “people screaming.” (Id. at 121–22). Ms. Schultz, who has sensitive lungs, started coughing and deduced that officers began spraying some sort of chemical irritant. She does not recall any comprehensible order to disperse, but only a “muffled” speaker atop a “Hummer-looking police vehicle.” (Id.). In
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memorable language, Plaintiff Schultz describe the speaker as sounding “a lot like how Charlie Brown’s phone conversations sound. We couldn’t make it out.” (Id. at 141; see also id. at 123 (“[A]ll the protestors were looking at each other like[,] what did they say, did you hear that . . . And nobody could make it out”)).
Though Plaintiff Schultz noted no hostile protesting, she was hit by the first of what would be three sprayings of a chemical irritant. (ECF No. 49). Soon thereafter, Plaintiff Schultz was standing in Broad Street, and officers deployed another two rounds of spray, at least one of which hit her in the face. (Id. at 127 (“Like split second, as soon as you open your eyes, it burns.”)). It was then that Plaintiff Schultz was struck with some projectile—which turned out to be a knee knocker—bringing her to the ground. (Pl.’s Ex. 67 (showing injury)).
Plaintiff Schultz did not attend any more protests afterward. She “was very scared to go back.” (ECF No. 49 at 133). Instead, she offered her support to the protests in other ways, such as having conversations with people or dropping off water to demonstrators. (Id.). When advising her friends on whether to attend protests, she “urged them against it.” (Id.).
b. Plaintiff Torrie Ruffin Plaintiff Torrie Ruffin and a few friends attended the protest downtown just after 10:00 a.m. (ECF No. 46 at 105 (“It was a very peaceful, powerful moment.”)). Later, she and her friends joined a sit-in protest in the street, by the intersection of Broad and High Street, chanting, “this is a peaceful protest.” (Id.). Two or three officers came by with mace and sprayed the faces of the sitting protestors, hitting Ms. Ruffin. She received no order to leave the street. (Id. at 111). Plaintiff Ruffin fled to cleanse her eyes, face, and throat from the spray. Later that day, Ms. Ruffin and other demonstrators stood in a crosswalk chanting, linked arm-in-arm. (Id. at 110). Bicycle officers arrived “to actually push and physically move us to the
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side to allow more officers to come in . . . And then there was another mass spraying of pepper spray into the protestors’ faces.” (ECF No. 46 at 110–11).
She did not observe any physically aggressive behavior from the protestors preceding either spraying.
At some point that day, Plaintiff Ruffin recalled sitting on a curb when horse-mounted officers started walking through the crowd; officers in riot gear placed things in the middle of the street before running away. “And then there were . . . smoke bombs that ended up going off.” (ECF No. 46 at 116 (explaining that officers also threw smoke bombs onto the sidewalk)).
Plaintiff Ruffin testified that she observed a young woman who was recording while talking to a bicycle officer; the officer sprayed the woman with pepper spray “directly point-blank in the eyes. She turned for a second. She came back up and said something to him[,] and he sprayed her point-blank in the eyes again.” (Id. at 116). A similar event occurred moments later. She saw a man with a gas mask “calmly walking” away. (Id. at 117). “And there’s an officer that ran from behind him, ran up to him, seemingly hit him on the head, pulled his mask off and then took pepper spray and was spraying into his mask, into the guy’s face.” (Id. at 117). A police truck then drives by, ordering the congregants to leave the area.
c. Plaintiff Bryan Hazlett Plaintiff Bryan Hazlett attended the protest to accompany a friend around 7:30 p.m. Upon arrival along High Street, he noted a “quite peaceful” crowd; “just a bunch of people standing around, hands up, don’t shoot chants, stuff like that.” (ECF No. 49 at 51; id. at 53 (“When we first got down there, there was really nothing much going on, just a wall of police.”)). As the hour drew on, officers “started firing wooden bullets,” prompting protestors to get “plywood to protect themselves from said wood bullets and tear gas canisters.” (Id. at 53; Defs.’ Ex. 52 (same); ECF
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No. 49 at 61 (stating the knee knockers were “everywhere” on the ground)). Some protestors threw water bottles at officers, but Mr. Hazlett did not observe any other objects thrown. In addition, a “piercing siren,” ordering protestors to disperse, was sounding. (ECF No. 49 at 60). Mr. Hazlett said he was unsure why there was a dispersal order, as the protest was primarily peaceful and there was no effective curfew. Nevertheless, he entered the street to reunite with his friend (she had gone into the street to protest earlier); he intended to depart afterward.
But, as Plaintiff Hazlett enters the intersection of Russell Street and High Street, a video shows CPD officers chasing several individuals and body slamming them to the ground, including Mr. Hazlett; an officer also sprays him with a chemical irritant. (Pl.’s Exs. 135, 139). Mr. Hazlett provides a summary of what transpired:
I was tear[-]gassed. That was painful. And then I got hit by the police officer, dropped to the ground. That was extremely painful . . . I curled up in the fetal position to protect my face and then to which the officer said[,] give me your arm[,] and then another officer circled back around, tear[-]gassed me again, and at that point[,] I had given up my arm[,] and then they basically were just kneeing me and elbowing me and shoving my head into the ground and then they zip[-]tied my hands behind my back. My leg was bleeding. My face was burning. That was about it. (ECF No. 49 at 68). Mr. Hazlett was then arrested. (Id.). Whether Mr. Hazlett would attend another protest: “I don’t think I would . . . It was a horrible experience.” (Id. at 72).
d. Witness Michael Andrew Moses Witness Michael Andrew Moses attended the protests on May 30 around 9:00 p.m. “[S]onically,” he recalled, “it was an overwhelming environment.” (ECF No. 46 at 32). There was about a half-football-field buffer between the officers, clad in armor and holding shields, and the protestors. (Id. at 32). While the scene was largely peaceful—and he did not observe protestors throwing any bottles, rocks, or other items—the atmosphere was “chaotic.” (Id. at 33). Mr. Moses
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heard a “garbled” and “muffled” bullhorn command. (Id. at 32, 37, 58). Other protestors gestured to the confused congregants that the police wanted them to start moving north. Minutes after moving north, Mr. Moses was surprised to almost immediately feel two projectiles of some kind hit him in quick succession: one on his left ribs and the other on his back. He ran away from the scene to a coffeeshop doorway. He “heard a whole lot of boots marching directly their way,” and Mr. Moses was grabbed by his right wrist and arm, forced down to the ground, hitting his face and right shoulder. (Id. at 36). He was cuffed, put into a vehicle with a handful of other seized individuals, and went through processing at Jackson Pike Corrections Center. (Pl.’s Ex. 65 (showing his injuries)).
As to whether he would attend a protest again: “In general, no.” (ECF No. 46 at 44). e. Plaintiff Bernadette Calvey
Plaintiff Bernadette Calvey, a nurse’s assistant, attended the protest in the Short North area with her friend, arriving around 9:00 p.m. at the intersection of High Street and Second or Third Street. (ECF No. 46 at 61–62 (“Protestors were yelling or chanting Black Lives Matter or specific names . . . [officers] were in riot gear lined up across the street.”)). At this point, Plaintiff Calvey was standing on the sidewalk and had not yet even joined in the actual protest. (Id. at 63 (“I was . . . there for a very short period of time . . . I hadn’t joined the protestors . . . I didn’t step into the street where the other protestors were. I was just observing from the sidewalk.”)).
Though Plaintiff Calvey did not observe any protestor-police confrontations, she noticed police officers shouting; CPD personnel then fired projectiles at demonstrators at close range. (Id. at 62). Ms. Calvey, still on the sidewalk, was struck in the face by a projectile, a wooden pellet, which split open her chin. (Id. at 64 (“It hit me directly like dead center on my chin.”)). A white powder also exploded, which temporarily blinded her. She and others fled into an alley, at which
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point she heard a police bullhorn order the protestors’ dispersal. (Id. at 237). She did not hear any announcement to leave before she was struck in the face. (Pl.’s Ex. 132 (video); Pl.’s Ex. 62 (picture of chin injury); Pl.’s Ex. 55 (police report)).
Whether Ms. Calvey would attend a protest again: “I would definitely be hesitant. This was my first protest, and I was there for less than five minutes and ended up getting shot in the face . . . but I don’t want to say I would never attend one again because I don’t want to be scared off.” (ECF No. 46 at 73).
f. Plaintiff Nadia Lynch Plaintiff Nadia Lynch, a billing and savings analyst, joined the protests near the Statehouse in the morning, around 10:45 or 11:00 a.m., with her sister. She testified to the protestors’ “unity” and “lifted spirits.” (ECF No. 48 at 181). Closer to noon, Plaintiff Lynch was walking toward the sidewalk at High and Broad Street when an officer pulls her by her backpack, tackles her to the ground, and arrests her. (Pl.’s Ex. 148; ECF No. 48 at 182 (“I couldn’t tell you the reason I was arrested. And as soon as I went down, I didn’t know what crime I had committed”); Pl.’s Ex. 71 (arrest sheet)). And she testified that she did not hear any instruction to disperse from the traffic way prior to being arrested. (ECF No. 48 at 189–90). Plaintiff Lynch was then placed in what she described as “a paddy wagon,” was taken to a police substation where she and others were ziptied, sat outside in the sun for five to six hours, and then transported on a sheriff’s bus to Jackson Pike Corrections Center for slating, sitting in a holding cell for about half an hour or so. (Id. at 187). She did not attend any more protests after her arrest. (Id. at 199).
g. Plaintiff Stephanie Carlock Plaintiff Stephanie Carlock traveled to the protests downtown around 4:00 p.m. (ECF No. 49 at 185). By 5:15 p.m., she and others were standing arm-in-arm in the High Street crosswalk,
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facing south; the police were standing in front of that group, with just a three-foot separation between the groups. The officers “in sync all reached for their pepper spray” and sprayed the protestors “point-blank in the face,” causing “[a] really intense burning pain.” (Id. at 191). She retreated to the sidewalk, pouring milk into her eyes to ease the pain. A dispersal announcement sounded, “[b]ut then a moment later[,] [officers in riot gear] started throwing tear gas canisters,” causing Plaintiff Carlock and others to retreat further south towards the Statehouse. (Id. at 193). She observed some protestors throwing water bottles towards police officers, prompting other protestors to urge them to stop.
Later, she and other demonstrators sat in the road as a form of protest at the intersection of Fifth and Broad Street. (Id. at 197). An officer told them to get out of the street and onto the sidewalk, so some of the group, Plaintiff Carlock included, stood up and dispersed to the sidewalk. But some of the horse-mounted officers “started pushing into the crowd . . . physically [running] into some of us.” (Id.). The demonstrators’ questions of what to do—now that they had complied with the order to disperse from the street—went unanswered. Instead, the officers “herded” the group south, where they met another line of officers blocking the street, thus trapping the protestors. (Id.). Officers then threw a tear gas canister at the group on the sidewalk, and “it was almost impossible to get out of that spot we were in.” (Id. at 199). The protestors fled toward the only point of egress: an alleyway in which a delivery truck was parked, thus allowing for a bottleneck of one person at a time to squeeze through. (ECF No. 49 at 201 (“They hadn’t communicated anything after they said to get up on the sidewalk despite us asking what they wanted us to do. They didn’t provide any further instruction.”)).
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Ms. Carlock attended additional protests in late summer and early fall, including a “gathering of remembrance” for Breonna Taylor, a 27-year-old Black medical worker who was shot and killed in her own apartment by Louisville, Kentucky police.44 (Id. at 213).
4. Sunday, May 31, 2020 Lea Pagels, an investigator and litigation specialist at the Ohio Public Defenders, attended most days of last year’s protests, including May 31, as a legal observer for the National Lawyers Guild. (ECF No. 49 at 4). She testified to seeing police use force against protestors “[u]nder a wide range of circumstances. I saw them use chemical weapons, bicycles, fists, flashbangs on people on sidewalks, on streets, in groups, alone.” (Id. at 5). The most common less-lethal dispersal technique she observed was pepper spray, followed by knee-knockers. “And then more increasingly throughout the summer[,] I saw [officers’] bicycles being used as weapons.” (Id.). Although she testified to mostly peaceful crowds, she recalled bottles of water thrown. (Id. at 22; Defs.’ Ex. 41 (showing protestors throwing bottles, and officers shooting projectiles indiscriminately at 57:27)). Ms. Pagels arrived downtown, near the intersection of Broad and High Street, early evening on Sunday, with her fellow legal observer, Chris Noble. (ECF No. 49 at 7). Much of her testimony was devoted to discussing a woman to whom she referred as “the woman in white.” (Id.). A video Ms. Pagels recorded shows the woman in white sitting in the middle of West Broad Street. (Pl.’s Ex. 102-A; ECF No. 49 at 9). The witness recounted: I observed the woman in white . . . sitting there peacefully . . . I observed the camouflaged officers point a gun at her. At the time[,] I didn’t know what was in the gun . . . I saw an officer spray her in the face with pepper spray at what I would consider point-blank range . . . her body is quite limp. (ECF No. 49 at 9–10).
44 Richard A. Oppel, Jr., Derrick Bryson Taylor, and Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, N.Y. Times, Apr. 26, 2021, https://www.nytimes.com/article/breonna-taylor-police.html.
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Stills taken from a video show officers spraying the woman in white at point-blank range. (Pl.’s Ex. 68). Another video Ms. Pagels took shows an officer standing in a bus shelter, apparently shooting an unknown projectile towards the woman in white. (Pl.’s Ex. 102-B (narrating “Oh, my God, they’re going to shoot her again . . . She’s injured.”)). In both videos, a police recording ordering congregants’ dispersal is heard plainly. (Pl.’s Exs. 102-A, 102-B).
An officer dressed in military combat gear pivots his attention toward Ms. Pagels and Mr. Noble. He begins shooting projectiles at the pair of fleeing legal observers. (Pl.’s Ex. 102-B (narrating, “I’m getting shot at right now”)). The noise from the rotary gun echoes; Ms. Pagels yells to Mr. Noble, “Stay with me, Chris. Stay with me.” (Id.). Ms. Pagels likened what she experienced to a video game, recalling “ducking,” “dodging,” “avoiding officers . . . spring[ing] out from alleys with their guns,” and “zigzagging our way as best as we could to safety.” (ECF No. 49 at 28; see also id. at 48 (“Most terrifying experience . . . I definitely suffered from PTSD.”)).
When asked if she would encourage or discourage others from attending a protest, Ms. Pagels stated that she would advise nobody with underlying health conditions to attend, given the use of chemical agents. (Id. at 31 (recalling that those with respiratory conditions suffered especially)). She also would encourage prospective protestors to understand “the violence that they might endure” from law enforcement. (Id. at 31).
Around 5:00 p.m., Plaintiff Rebecca Lamey traveled with a friend to the area near the Statehouse, around Broad and High Street. (ECF No. 47 at 13). There was a bit of “idle time,” interspersed with demonstrators shouting, chanting, and kneeling. (Id.; see also id. at 9 (“Some people were obviously maybe a little bit louder than others. But it was, overall, I would say pleasant.”)). The atmosphere began to change when the demonstrations divided into two. (Id. at 12 (“A lot of [the officers] were already wearing their riot gear, but a lot of them were starting to
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put their gas masks on. It started to become more apparent that violence was the language they were wanting to speak that day.”)).
At 7:50 p.m., the now-familiar automated dispersal order sounded. (Pl.’s Ex. 130 (“This is an emergency situation . . . Please leave the area.”); see ECF No. 47 at 14 (emphasizing there was not any direct order to depart)).
At 7:52 p.m., a defense exhibit video shows this same intersection—Broad and High Street—with several demonstrators standing atop a truck, brandishing guns. (Defs.’ Ex. 41 (at 52:32)). Ms. Lamey did not recall seeing the truck or these individuals atop it. The video also shows a different young man throwing something like a water bottle towards the officers, who were wearing riot gear. (Id.).
A video recorded by a surveillance camera, stationed at the corner of Broad Street and High Street, shows SWAT officers firing projectiles and tear gas into a crowd that soon after disperses. (Pl.’s Ex. 109; see also ECF No. 47 at 15). Ms. Lamey, fearful of being trampled, stepped to the side to avoid the dispersing crowd.
At 7:54 p.m.—four minutes after Plaintiff Lamey first recalls hearing the dispersal announcement—she was struck by one of these munitions while walking on the sidewalk. (Id. at 15). Specifically, a SWAT officer turned the corner and fired his rotary gun; one knee knocker struck Plaintiff Lamey on the hand; she was struck four more times on her inner thighs, left hip, and buttock. (Pl.’s Exs. 146, 130, 130-A; Defs.’ Ex. 36 (showing a screenshot of Pl.’s Ex. 140)). It is unclear whether the projectile was direct- or skip-fired. (Pl.’s Ex. 130 (video of incident); Pl.’s Ex. 131 (similar); Defs.’ Ex. 46)).
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Later, the above-mentioned surveillance camera video also shows a tactical van driving south on High Street, firing projectiles at protestors on either side, while SWAT officers continue to fire projectiles north at individuals on High Street.
Photojournalist for The Columbus Dispatch, Adam Cairns, arrived at the intersection of Broad and High Street in his professional capacity around 9:15 p.m., bearing his press badge. (ECF No. 46 at 230). A photo Mr. Cairns took, timestamped at 9:44 p.m., shows an officer who appears full faced to his camera. Mr. Cairns testified that the officer yelled in Mr. Cairns’ direction to leave, and as Mr. Cairns turned to leave, he was struck in the cheek with a wooden projectile.
5. Monday, June 1, 2020 Plaintiff Andrew Fahmy, a personal banker, joined the protests downtown, near Broad and High Street, the evening of June 1 at 5:00 p.m. (See generally ECF No. 47; id. at 105 (“People were not really organized . . . .”)). Later, the protestors marched north on High Street; Mr. Fahmy, and his friend who accompanied him, followed. (Id. at 109). By 9:45 p.m., Plaintiff Fahmy ended up near High and Lane, close to Ohio State’s campus. At 10:20 p.m., five to ten police cruisers, mostly SUVs, drove northbound on High Street. (Id. at 113). The officers were wearing riot gear, corralling the crowd from the south. Within a few minutes, Mr. Fahmy “saw like a yellow mist and streams of pepper spray, and I saw people kind of -- a couple of people like hit the ground and were screaming, and a couple of people were trying to pour water in their eyes.” (Id. at 114). Mr. Fahmy did not hear any orders to disperse, nor any orders relating to curfew. (Id. at 115 (“No, not at all”); id. at 135–36 (“I would have heard it over the chants.”)).
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Within a few minutes, tensions continued to rise, and protestors continued to protest. (ECF No. 47 at 118 (“[A] lot of the protestors were yelling . . . .”)). Officers in riot gear were positioned on one side of the street, and the protestors, roughly 20 or 30 feet away, opposite the police.
Shortly after 10:27 p.m., Plaintiff Fahmy was struck by a canister of tear gas a few inches above his left ankle, which “felt like . . . a big . . . 20-pound dumbbell.” (Id. at 119; Pl.’s Ex. 134B (video taken by witness); Pl.’s Ex. 134-A (same incident from a different angle)). Mr. Fahmy sought medical attention a few days after, and the injury proved to be a severe break. (Compare ECF No. 47 at 126 (stating he was in a boot for two-and-a-half-months), and Pl.’s Ex. 76 (x-ray of fracture), with ECF No. 48 at 28 (Deputy Chief Quinlan testifying that he would be surprised if being hit by a tear gas canister could fracture a bone)).
Mr. Fahmy has been invited to subsequent protests, and he has responded with: “a hard no . . . my personal experience was very negative.” (ECF No. 47 at 128).
Witness Maeve Walsh, a student journalist for the Ohio State student newspaper, The Lantern, covered the protests on location that evening, June 1. (ECF No. 46 at 11). Just as Mr. Fahmy testified, the protest began downtown, near the Statehouse, and terminated closer to the Ohio State’s campus. (Id.). She was joined by her two colleagues, Max Garrison and Sarah Szilagy. (Id. at 11–12 (estimating 200 protestors and 20 officers)). The trio arrived around 9:00 or 9:30 p.m. (Id. at 11). Part of the newspaper protocol is for the student-journalists to identify themselves as much as possible. Thus, Ms. Walsh and her colleagues donned their press badges, a Lantern sweatshirt, and a Lantern hat. (Id. at 13). She did not observe any acts of violence by the protestors.
The curfew came at 10:00 p.m. Around 10:25 p.m., officers approached the student journalists in riot gear, ordering them to depart. Ms. Walsh tells the officers that she and her
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colleagues were members of the media and thus exempt from the 10:00 p.m. curfew. A video taken by Ms. Walsh near High Street and Lane Avenue shows how this interaction unfolded.
An officer approaches the students and says, “Leave, or you’re going to jail. Leave, or you’re going to jail.” (Pl.’s Ex. 140-A). Ms. Walsh replies, “We’re members of the press,” and thus exempt from curfew, to which the officer replies, “I don’t care.” (Id.). At this point, the crowd of protestors had diminished significantly, and a dozen or so officers now outnumber the three students. The students begin to retreat while reminding the officers of their press pass. Seconds later, an officer fires pepper spray at the students. The students run into an alley. The officers continue to pepper spray the journalists’ necks and backs. (Pl.’s Ex. 140-B). The next day, at the June 2 CPD roll call, the incident commander alluded to the prior day’s events: “Reporters are not subject to a curfew. And that should have been clear from the start.” (Pl.’s Ex. 25).
Ms. Walsh continued to cover the protests as a journalist. But she took precautions, including donning a facemask with a plastic film to protect her eyes against pepper spray.
6. Sunday, June 21, 2020 (Father’s Day Demonstration) Protests continued in Columbus throughout early June. Renewed protests began mid-June, particularly after Rayshard Brooks, a 27-year-old Black man—was shot and killed by Atlanta Police Department officers on June 12, 2020. In addition, Mayor Ginther and then-Chief Quinlan announced a change in CPD policy, limiting the use of chemical sprays for crowd-control scenarios. (Quinlan Aff. ¶¶ 12–13 (“CPD policies now prohibit officers from using chemical spray on a violent, non-aggressive crowd, even if they fail to leave the street.”) (emphasis added); ECF No. 48 at 14 (“I understood that they would only use pepper spray against people who were being violent.”); id. at 66 (same); id. at 71 (speculating officers did not “get the memo”)).
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Mr. Bardus, the street medic who rendered aid to the injured throughout the spring and summer, returned to the protests to do the same on June 21, around 11:00 a.m., near High Street, south of Broad Street. (ECF No. 50 at 63 (observing about 50 protestors, mostly on the sidewalk)). Ms. Wenning also returned to the demonstrations on June 21 around 3:30 p.m. as a legal observer for the National Lawyers Guild. (ECF No. 47 at 170, 175).
At Broad and High Street, she saw a dozen officers standing in the intersection, facing the protestors, who were standing all along the southern edge of the intersection. (Id. at 170). Some protestors at the front were holding reflective material in an apparent artistic protest to symbolize police violence-reflecting police violence. (ECF No. 50 at 68).
Commander Weir spoke into his radio and instructed officers to “clear High Street.” (ECF No. 47 at 171; ECF No. 50 at 66). In attempts to do so, bicycle-mounted officers strike the protestors and push them back. Mr. Bardus put it more directly:
So[,] they showed up on their bikes[,] and they shoved folks out of the street toward the sidewalk. They turned their bikes sideways and basically pushed people. I remember one protestor, a woman, fell in the street, and the officer continued to push her with his bike while she was on the ground. (ECF No. 50 at 66). Some officers implemented Commander Weir’s order to clear High Street, but with the bicycles facing forwards, not sideways. A video shows an officer repeating, in an aggressively monotone voice: “Get out of the road,” while riding forward into the crowd of stationary protestors, who pled with him to stop and were crying out in pain. He and other officers engaged in some hand-to-hand combat with the protestors. (Pl.’s Ex. 105 (with one officer remarking, apparently, “bitch” after pushing a protestor backward, into the ground)). The use of bicycles in this manner is a tactic that Mayor Ginther testified was not compliant with the old or new policies. Deputy Chief Quinlan agreed impliedly but would not go so far as to say that the technique shown
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in the above-mentioned video was inconsistent with training. (ECF No. 48 at 64). Mr. Quinlan testified: “[O]ur bike training is designed to use a barrier between the protestors and police officers. Typically[,] the way I see it done is the bikes are turned sideways. [In the video played at the hearing, the bicycle,] looks like it’s more forward[-]facing. The other bikes appear to be sideways. That’s more the technique.” (Id.).
Most importantly, despite CPD’s newly implemented prohibition on the use of chemical irritants on non-aggressive individuals, such sprayings continued. (Pl.’s Exs. 105, 106).
Ms. Wenning recalled from June 21: “I remember seeing this protestor get pepper[-] sprayed in the face[,] and then they turned around[,] and there was a medic right there [who] flushed their eyes . . . and then the protestor turned back around and immediately got sprayed again directly in the face.” (ECF No. 47 at 174).
Mr. Bardus remembered similarly: “Basically, the group that got sprayed was farther south, closer to State [S]treet and High, and there was another group sprayed closer to High and Broad.” (ECF No. 55 at 66; id. at 68 (“I’m sort of ping-ponging between folks who need to have their eyes flushed.”); id. at 68–69 (describing “big arc[h]ing sprays of mace”)).
Before both of these crowd-control devices were deployed—the use of bikes and the spray—Mr. Bardus did not hear any order given to the protestors standing on the sidewalk. He also did not witness the protestors do anything violent against the officers. (ECF No. 50 at 67).
Ms. Wenning’s outlook on attending protests changed after attending last year’s demonstrations. (ECF No. 47 at 176). She testified:
[T]here are definitely times now where I will know that a protest is happening, and I feel like I should not go or I decide not to go because I don’t want to risk getting sprayed or getting tear gassed . . . [A]fter I was tear gassed on the 28th – and then also we didn’t talk about this date, but two days afterward, I think on the 30th, I was also exposed to some tear gas on that day -- I had like spotting in between periods which I have heard my friends report as well. And that really frightened me. That made me think there was damage done
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to my body from tear gas. So[,] there are times that I have not gone to events, protests, because I thought something like that could happen.

(Id. at 177—76).

7. CPD’s Characterization of the Protests

Much of the testimony and evidence presented in the briefing and at the hearing

demonstrated that CPD approached last year’s protests differently than if the protests had not been

about police brutality. This is evident in then-Chief Quinlan’s June 2, 2020 roll call speech to

officers: “And with the situation when we’re the focus of the protest, we can’t afford to be the ones

that create that provocation. We just can’t . . . It’s a lot easier when they’re protesting something

else.” (Pl.’s Ex. 25 (emphasis added); see also Pl.’s Ex. 4 (citing Thomas Quinlan Aff. ¶ 6)).

He echoed this position at the hearing: “They were against the police . . . I just know

officers were concerned for their safety[,] and they were against the police.” (ECF No. 48 at 89;

but see ECF No. 46 at 10, 28, 60, 103 (stating these witnesses are not members of any antipolice

groups); ECF No. 47 at 58, 142, 103 (same); ECF No. 49 at 4, 51, 117, 184 (same)).

This Court engaged in the following colloquy with Mr. Quinlan:

THE COURT:

Chief, you indicated that you advised our officers who were going

to be the police presence at the protest that there was a national movement that was an

antipolice movement. Did I characterize that correctly? And if not, tell me how you

characterized it.

THE WITNESS: Yes, Your Honor. When I talked to officers, I said that these are – these times are different than protests we typically deal with. We typically deal with protestors on two sides[,] and we’re in the middle trying to keep the two opposing sides separate to keep [the] peace. In this case, there [are] no two sides. It was protestors facing police to have their voices heard about systemic racism in this country and in Columbus and that they were speaking out about that and that we were the focus of the protest activity. So[,] that changed the dynamics.

(ECF No. 48 at 103–04).

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Commander Weir agreed, testifying that on May 28, the first substantive day of the protests: “[B]ecause the protests were anticipated to be antipolice protests, we didn’t necessarily want to be very visible.” (ECF No. 52 at 104).
CPD’s conduct revealed that officers conflated the spark of the protests (i.e., Mr. Floyd’s murder) with the effects of the protest (i.e., chants that criticized police and police brutality). It is understandable why an officer might take personally profane and provocative chants. (ECF No. 47 at 95 (“[O]ther people were yelling stuff like fuck you.”); ECF No. 51 at 71 (“They were saying fuck you[,] and fuck the police.”); ECF No. 52 at 127 (“[T]here was a bunch of [All Cops Are Bastards (“ACAB”)] graffiti all around there.”)). But what is not comprehensible is why she would then let that dictate her treatment of individuals exercising their First Amendment right, no matter how unkind their chants and signs might be. (ECF No. 47 at 74–75 (“That’s what you get for being down here you black protesting bitch.”)).
What separates our nation from some others is the ability to criticize our leaders and those bearing the imprimatur of state authority without fear of retribution. Typically, police are the ones who protect and ensure that this cherished right remains unencumbered. That is not what occurred last summer.
III. STANDARD OF REVIEW Four factors control the Court’s discretion to grant a preliminary injunction: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Hall v. Edgewood Partners Ins. Ctr., Inc., 878 F.3d 524, 526–27 (6th Cir. 2017). While a strong likelihood of success is the crucial factor, all four must be balanced
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rather than treated as prerequisites. McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d

453, 459 (6th Cir. 1997). Irreparable harm is nearly as crucial as the success factor: “Our frequently

reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable

injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

22–24 (2008). “The loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

IV. LAW & ANALYSIS

This Court begins its legal analysis with a reminder from the Ninth Circuit:

Demonstrations can be expected when the government acts in highly controversial ways[] or other events occur that excite or arouse the passions of the citizenry. The more controversial the occurrence, the more likely people are to demonstrate. Some of these demonstrations may become violent. The courts have held that the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.

Collins v. Jordan, 110 F.3d 1363, 1372 (9th Cir. 1996) (citation omitted).

A.

The Floyd Case Law

Since the last year’s protests in the wake of George Floyd’s killing, there have been no

fewer than seventy-three cases exploring how these protests shine a light on existing First

Amendment or Fourth Amendment principles. (“Floyd Caselaw”).45

45 See, e.g., Abay v. City of Denver, 445 F. Supp. 3d 1286, 1292 (D. Colo. 2020) (granting the temporary restraining order and noting: “Officers used physical weapons and chemical agents to prevent not just peaceful demonstration, but also the media’s ability to document the demonstrations and plaintiffs’ and third parties’ ability to offer aid to demonstrators.”); Goyette v. City of Minneapolis, No. 20-CV-1302 (WMW/DTS), 2020 WL 3056705, at *1 (D. Minn. June 9, 2020) (dismissing the case absent allegation of immediacy of harm); Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150, 1157 (D. Or. 2020) (granting a temporary restraining order, finding that while there was destruction, these plaintiffs only engaged in peaceful and non-destructive protest and that officers might have been substantially motivated by an intent to interfere with plaintiffs’ constitutionally protected expression); Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, 466 F. Supp. 3d 1206, 1210 (W.D. Wash. 2020) (finding a “clear showing” of a likelihood of success on the merits of the First Amendment claim because Plaintiffs demonstrated that the officers’ actions—in the use of less-lethal crowd-control tactics, such as tear gas and pepper spray—were substantially motivated by Plaintiffs’ conduct and also had a chilling effect on the First Amendment activity); Anti Police-Terror Project v. City of Oakland, 477 F. Supp. 3d 1066, 1069 (N.D. Cal. 2020).
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Each case in the Floyd Caselaw presents a similar tale: protestors gather near buildings of

community significance, such as state capitol buildings, courthouses, and police stations, to

express their horror and outrage at the killings of Black Americans at the hands of police officers;

violence occurs at the hands of demonstrators and officers alike; most demonstrators chant, sing,

and exercise a number of nonviolent and constitutionally protected activities; other demonstrators

serve as an accelerant, engage in violence, and ignore police commands; at various points, officers

protecting municipal, federal, and private properties are subject to threats, projectiles, and

sometimes violence; dispersal orders or instructions for how to comply with police orders are

either unheard, unprovided, or unheeded; police deploy less-lethal munitions, resulting in injuries

to violent, nonviolent, and compliant protestors as well as passersby.

As our sister courts have noted, there are several prevailing legal principles from the Floyd

Caselaw. First, all individuals have a First Amendment right to protest the actions of government

officials, including police officers, without fear for their safety. Second, police officers, almost by

definition, operate in an intense and volatile workplace context. Third, the Floyd Caselaw arises

in unprecedented times that have upended life; the pandemic has also reminded us of the structural,

unequal access to healthcare, particularly for Black, brown, indigenous, and rural communities,

those with pre-existing illnesses or stigmatized health profiles, and those with mobility limitations.

Finally, the Floyd Caselaw courts have recognized an inherent difficulty in drawing an enforceable

line that is sensitive to officers’ ability to quell violence and prevent the destruction of property

without crossing the line into chilling free speech and abusing those who wish to exercise it.

B.

Standing to Seek Injunctive Relief

Defendants challenge the existence of standing to seek injunctive relief, arguing that

Plaintiffs have not shown a real and immediate threat of future harm. (ECF No. 61-1 at 7). The

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doctrine of standing arises from Article III of the Constitution, which gives federal courts jurisdiction over cases and controversies. U.S. CONST. art. III § 2; see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992). The basic elements of standing are: (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560–61. To win declaratory or injunctive relief, a plaintiff “must show actual present harm or a significant possibility of future harm.” Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001).
1. Injury in Fact An injury in fact must be concrete, particularized, actual, and imminent. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Put another way, the “threatened injury must be ‘certainly impending’ to constitute injury in fact, and ‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting another source); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”). Defendants rely on City of Los Angles v. Lyons, where the plaintiff sought an injunction against the City of Los Angeles to ban the use of chokeholds in certain circumstances. 461 U.S. 95, 97–98 (1983). In Lyons, LAPD officers placed Mr. Lyons in a chokehold during a routine traffic stop, which rendered Mr. Lyons unconscious and caused damage to his larynx. Id. at 97. On the initial remand, the district court found that officers stopped Mr. Lyons for a traffic infringement without provocation or legal justification, the officers applied a
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department-authorized chokehold. Id. at 99 (summarizing the district court’s finding that the use
of chokeholds in this manner “is unconscionable in a civilized society”).
Mr. Lyons sought injunctive relief. The Supreme Court found that Mr. Lyons failed to
demonstrate a case or controversy to justify his requested relief. That is, he was unable to establish
standing, absent proof of some real and immediate, rather than conjectural or hypothetical, injury
or threatened injury. Id. at 101. “Nothing” in the police’s policy “suggest[ed] that the chokeholds
. . . [were] authorized absent some resistance or other provocation,” the Court explained. Id. at
106. Mr. Lyons could not show that another encounter with the police was likely, nor could he
demonstrate: (1) that all police officers in Los Angeles always choke any citizen with whom they
happen to have an encounter; or (2) that the City ordered or authorized police officers to act in
such manner. Id. at 106, 110. Accordingly, the Lyons court reasoned that because no city policy
authorized officers to use illegal chokeholds, “it is surely no more than speculation . . .
that Lyons himself will again be involved in one of those unfortunate instances, or that he will be
arrested in the future and provoke the use of a chokehold.” See id. at 108.46
46 While Lyons became a seminal case on the mootness doctrine, courts often rely upon it to assess standing. Indeed, the Sixth Circuit has recently applied Lyons in election-law cases. See Shelby Advocates for Valid Elections v. Hargett, 947 F.3d 977 (6th Cir. 2020), cert. denied, ––– U.S. ––––, (2020); Memphis A. Philip Randolph Inst. v. Hargett, 978 F.3d 378, 387 (6th Cir. 2020). In Shelby Advocates, an organizational plaintiff and four individual plaintiffs alleged “a variety of election administration problems,” including that “election workers [were] poorly trained, sometimes distributing the wrong ballots . . . , sometimes recording the wrong address when registering a voter, and once distributing a poll book without redacting voters’ personal information.” Shelby Advocates for Valid Elections, 947 F.3d at 980. Echoing Lyons, the court found that the plaintiffs failed to allege imminent harm because there was no evidence that “Shelby County election officials always make these mistakes” or that “the government entities ordered the election workers to make any such mistakes.” Id. at 981 (emphasis added).
In Memphis A. Philip Randolph Institute, plaintiffs challenged Tennessee’s statutory scheme governing absentee voting, particularly the signature verification procedures. Memphis A. Philip Randolph Inst., 978 F.3d at 378. Affirming the district court’s order denying the plaintiffs’ motion for a preliminary injunction, the Sixth Circuit found that the plaintiffs had not clearly demonstrated that they face an actual, concrete, particularized, and imminent threat of harm. Unlike in Lyons, where the plaintiff had a concrete past injury resulting from government conduct, in Memphis A. Philip Randolph Institute, the plaintiffs could not cite with certainty or specificity any past erroneous rejection of absentee ballots. The Memphis A. Philip Randolph Institute plaintiffs also failed to overcome declarations from state election officials detailing the procedures implemented to protect against human errors in the signature verification process. For example, a mandatory training video instructed election officials to accept all but the most
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Even when there is a concrete past harm such as in Lyons, the Sixth Circuit heeds the Supreme Court’s directive that “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Grendell, 252 F.3d at 832 (quoting Lyons, 461 U.S. at 102, 103). In Grendell, for example, the Sixth Circuit reviewed a case against the Ohio Supreme Court. Plaintiffs sought injunctive relief, contending that the Ohio Supreme Court Practice Rule XIV § 5 was unconstitutional on its face. Absent evidence of a real and immediate threat of repeated injury, Mr. Grendell’s prior injury (i.e., being previously sanctioned by the Ohio Supreme Court) did not establish an adequate injury in fact to confer standing,.
As is relevant to this case, this Court draws the following principles from the Sixth Circuit’s interpretation of Lyons. First, an absence of a concrete past injury proves fatal to proving standing. Second, the alleged unlawful conduct must be pursuant to some policy, practice, or functional equivalent, and Plaintiffs’ past injuries must have stemmed from these policies or procedures. Third, there must be a non-speculative threat of repetition.
Here, Defendants do not contest the existence of a past injury, so this Court’s standing determination will focus on the second and third questions.
a. Policy, Practice, or Functional Equivalent Recall that the Supreme Court found in Lyons that because nothing in the policy of the Los Angeles police suggested that chokeholds were authorized absent some resistance or other provocation by the arrestee or other suspect, Mr. Lyons had not established a “real and immediate threat” that he would be stopped and choked again. Lyons, 461 U.S. at 105, 110. Evidence of
obviously inconsistent signatures. Before any ballot was rejected, three trained election officials, including an administrator, must agree that the signature on the absentee ballot does not match the signature in the voter registration records. Given the training and protections practiced by state officials, the Sixth Circuit found it far from inevitable that an absentee ballot will be incorrectly rejected due to an inconsistent signature.
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relatively few instances of violations by individual police officers, “without any showing of a deliberate policy on behalf of the named defendants,” does not provide a basis to seek equitable relief. Id. at 104.
Therefore, in this case, Plaintiffs must show more than a few instances of alleged excessive force or retaliatory treatment. Instead, Plaintiffs must put forth specific facts establishing a deliberate policy of the City authorizing such misconduct. Daubenmire v. City of Columbus, No. 2:04-CV-01105, 2008 WL 4758677, at *10 (S.D. Ohio Oct. 24, 2008). Short of an official written policy authorizing the contested conduct, the question is whether anyone with policymaking authority authorizes its officers to act in such a manner. Curtis v. City of New Haven, 726 F.2d 65, 68 (2d Cir. 1984).
Here, Plaintiffs identify two written policies or practices and multiple instances of encouragement or authorization from senior departmental personnel sanctioning the contested conduct. Cf. Lyons, 461 U.S. at 106 (stating that Mr. Lyons did not have standing in part because he failed to show that the City ordered or authorized the LAPD to place him in a chokehold).
(i) Written Policies or Practices First, CPD’s use of force directive allows for an exertion of energy to direct or control “resistive or aggressive behavior toward the involved personnel, other personnel, third parties, or property.” (Pl.’s Ex. 8). Use of chemical spray is a Level 2 use of force, and striking, punching, or kicking is a Level 4. (Id.). Second, and relatedly, CPD’s Amended Directive 2.04 (“Amended Directive”) revised departmental policies on the use of chemical irritants on non-aggressive protestors. (Defs.’ Ex. 44 at 4). Chemical spray may be used to gain control of “a physically aggressive/resistive subject, to prevent escape, or to prevent or stop the commission of a criminal offense.” (Pl.’s Ex. 9 at 1). But
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“it should be directed at the persons participating in the violent or aggressive conduct, not at the group in general.” (Id.). Importantly, the Amended Directive states: “Failure to leave a street or move, by itself, shall not justify the use of chemical spray against a non-aggressive[,] non-violent crowd.” (Id. at 5). Indicia of violence or aggression include: (1) stopping or impeding the movement of individuals not engaged in the protest; (2) trapping an occupied vehicle; or (3) impeding emergency personnel.
The Amended Directive contains a large carveout: “Sworn personnel may use chemical irritants to clear a congregation of people from a controlled-access highway or to prevent a congregation of people from entering a controlled-access highway,” which, as statutorily defined, refers to “every street or highway.”47 (Id.).
(ii) Encouragement or Authorization In addition to these written policies, Plaintiffs also point to a host of orders given from CPD senior personnel during last year’s protests as evidence of a policy, practice, or functional equivalent. The hearing revealed verbal orders by CPD higher-ups which point to a pattern of police behavior applying excessive force to protestors and congregants who not physically resisting, destroying property, or threatening to do so. This Court reviews two such examples. On May 29, 2020, a body-worn camera video from that evening shows a CPD supervisor instructing bicycle officers that “the group at Broad and High is going to move. They’re not going to stay there . . . We are going to move them by any means necessary⸺reasonably necessary. Everybody got that? Get your mace ready.” (Pl.’s Ex. 123-A). These officers ride their bicycles into congregants standing on the sidewalk and spray chemical irritants at random.
47 “Controlled-access highway,” statutorily defined, means “every street or highway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at some points only and in such manner as may be determined by the public authority having jurisdiction over such street or highway.” O.R.C. § 4511.01(CC).
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Similarly, recall that the Father’s Day Demonstration on June 21, 2020, occurred after the Amended Directive 2.04 in the use of chemical irritants became operative. Commander Weir instructed officers to “clear High Street” of protestors. One video shows officers push, shove, and spray protestors standing in the street. A separate video shows an officer indiscriminately spraying congregants, including some standing on fleeing toward the sidewalk. (Pl.’s Ex. 106).
Unlike in the Sixth Circuit’s review of the voting-law cases where it found the training of election staff to be adequate, here, there are questions of the adequacy of CPD training on the definition of when a crowd or individuals are “violent,” “aggressive,” and “resistive.”
Deputy Chief Kuebler admitted the vagueness: Q. Is there something in the division’s policies that explains what it means for protestors who are in the street to be aggressive? A. That remains very unclear to us in the division. (Kuebler 148:15—19). This definitional gap is important since an officer is permitted only to use chemical spray, for example, against a violent, aggressive, or resistive individual. In addition, neither the Directives nor the training relating to the use of wood projectiles and the use of bicycles to shove protestors has been amended at all. Under existing guidelines, CPD can order demonstrators to “clear the area,” and officers can treat that order as encompassing sidewalks as well as streets and use their discretion as to whether protestors are leaving fast enough. Plaintiffs have plausibly alleged that the officers’ use of force on protestors and passersby at last year’s protest was conducted pursuant to a formal policy or its functional equivalent, regular and routine practice, and even encouragement. Cf. Lyons, 461 U.S. at 110 n.9 (“The dissent does not . . . point to any written or oral pronouncement by the LAPD or any evidence showing a pattern
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of police behavior that would indicate that the official policy would permit the application of [chokeholds on suspects who refrained from engaging in unlawful conduct].”).
Based on the written policies and the verbal commands, this Court finds that Plaintiffs’ allegations of unlawful police conduct are premised upon unlawful policies and practices, since the use of force policy and Amended Directive 2.04 still allow for the repeated and indiscriminate use of chemical spray, wooden projectiles, and physical force on large swaths of people—not just on those involved in violence or aggression.
b. Future Harm “Despite being harmed in the past, the [plaintiffs] must still show that the threat of injury in the future is ‘certainly impending’ or that it presents a ‘substantial risk’ of recurrence for the court to hear their claim for prospective relief.” Clapper, 568 U.S. at 414 n.5. Plaintiffs have alleged that the unreasonable deployment of less-lethal force is likely to be re-deployed in the future. Conversely, Defendants, relying on Lyons, argue that Plaintiffs cannot establish standing by presenting evidence that CPD used the alleged policies against them in the past. Several Plaintiffs and witnesses declared their intention to attend future demonstrators relating to police reform and the treatment of police brutality. Their fear that they will be subjected to an allegedly illegal action is more than subjective. This is not Lyons, where a future risk was found to arise from an isolated incident of abuse. Rather, Plaintiffs introduced evidence of the Defendants’ ongoing, sustained pattern of conduct that resulted in numerous injuries to protestors and congregants. “[T]he possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.” Thomas v. Cnty. of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992) (internal quotation marks omitted).
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Ms. Pagels, a witness who attended most days of the protest, observed repeated instances of excessive force: “Under a wide range of circumstances[,] I saw them use chemical weapons, bicycles, fists, flashbangs on people on sidewalks, on streets, in groups, alone.” (ECF No. 49 at 5). The most common less-lethal dispersal technique she observed was pepper spray, followed by knee-knockers. And then more increasingly, “throughout the summer[,] I saw [officers’] bicycles being used as weapons.” (ECF No. 49 at 5).
In other words, CPD’s use of less-lethal force on non-aggressive individuals is not, to borrow the Sixth Circuit’s terminology, “vanishingly rare.” Hearring v. Sliwowski, 806 F.3d 864, 868 (6th Cir. 2015) (reviewing Lyons). And as the Supreme Court said in Lyons: “It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions.” Lyons, 461 U.S. at 107 n.8. An encounter with CPD at a demonstration, and thus with CPD policies, is likely to occur much more frequently than the speculation Mr. Lyons bore. Thus, Plaintiffs have standing to seek injunctive relief. Thus, Plaintiffs have satisfied the injuryin-fact requirement. See Samaha v. City of Minneapolis, No. 20-cv-01715, 2021 WL 931243, at *8 (D. Minn. Mar. 11, 2021) (“Plaintiffs are not required to divine the date when the next controversy will spark widespread outrage in this community. The Court finds that Plaintiffs have standing.”).
2. Causation and Redressability In addition to the injury-in-fact requirement, a plaintiff must also satisfy the causation and redressability requirements of standing. Plaintiffs have established causation because the alleged excessive force and retaliation is fairly traceable to the City’s actions. Under the redressability requirement, a plaintiff must show a likelihood that the requested relief will redress the alleged injury. Plaintiffs seek an injunction restraining CPD’s use of less-lethal force on nonviolent
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protesters to enforce dispersal orders. This requested relief is directly tied to the injuries

Plaintiffs—all nonviolent protestors, observers, and passersby sustained last summer.

Thus, this Court finds that Plaintiffs have demonstrated a concrete past injury of being

subjected to less-lethal force, pursuant to CPD’s policies and procedures and that the specter of

repetition is concrete and non-speculative. A favorable decision would redress these concerns.

C.

Mootness

Defendants further assert that Plaintiffs’ Motion for Preliminary Injunction is moot because

they did not seek injunctive relief back in May or June of 2020 when the alleged unconstitutional

conduct occurred. (ECF No. 61-1 at 10). In the months that have followed the protests, Defendants

contend that much of Plaintiffs’ claim for injunctive relief has become moot due to changes the

City has made to CPD Directives and the City Code. (Id.).

“In addition to requiring that a party have standing, the Constitution’s case or controversy

requirement mandates that a claim must not become moot prior to the court’s decision on the

merits.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). A case becomes moot

when either the “issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Id. (internal citations omitted). To determine mootness, “the question is

not whether the precise relief sought at the time the application for an injunction was filed is still

available. The question is whether there can be any effective relief.” Nw. Envtl. Def. Ctr. v.

Gordon, 849 F.2d 1241, 1244—45 (9th Cir. 1988). If a course of action is mostly completed, but

modifications can be made that could alleviate the harm suffered by the plaintiff’s injury, the issue

is not moot. Tyler v. Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000). A case becomes moot “only

when it is impossible for a court to grant any effectual relief whatever to the prevailing

party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quotation marks omitted). The party alleging

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mootness bears a “heavy burden” to establish that a court can provide no effective relief. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (quoting Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).
Below, this Court reviews two mootness doctrines: (1) the capable of repetition yet evading review doctrine; and (2) the voluntary cessation doctrine. Both are often referred to as “exceptions” to the mootness doctrine. See Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar, 787 F.2d 12, 16 (6th Cir.1986) (referring to the voluntary cessation doctrine as an exception to the mootness doctrine); see also Gottfried v. Medical Planning Servs., Inc., 280 F.3d 684, 693 (6th Cir. 2002)) (referring to the capable of repetition yet evading review doctrine as an exception to the mootness doctrine).
1. Capable of Repetition Yet Evading Review The capable of repetition, yet evading review exception to the mootness doctrine applies where: “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Coal. for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 470, 473 (6th Cir. 2004) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).The Supreme Court has further stated that it has been “unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Honig v. Doe, 484 U.S. 305, 320, (1988) (citing Lyons, 461 U.S. at 105–06). This Court finds that there is a reasonable expectation that the same complaining parties, Plaintiffs, would be subject to the same action again. Ms. Pagels, a witness who attended most days of the protest, observed repeated instances of less-lethal force deployed on non-violent congregants: “Under a wide range of circumstances[,] I saw them use chemical weapons, bicycles,
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fists, flashbangs on people on sidewalks, on streets, in groups, alone.” (ECF No. 49 at 5). As long police killings are met with public outrage and protest—and as long as CPD relies upon less-lethal force to disperse non-violent congregants—there remains a reasonable likelihood that Plaintiffs will face the same challenged conduct again.48
2. Voluntary Cessation Doctrine Further, voluntary cessation of conduct moots a claim only in limited and narrow circumstances. As explained by the Supreme Court: The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways. A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Of course[,] it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (simplified).49 Defendants contend that because Plaintiffs did not seek injunctive relief back in June when the alleged unconstitutional conduct occurred, much of their claim for injunctive relief has become moot. (ECF No. 10 at 12). Further, in the six months that followed the protests, CPD amended its directives with respect to the use of chemical irritants to (according to Mayor Ginther) facilitate better trust and relations with the community. Consequently, Defendants argue that this voluntary change in enforcement tactics moot Plaintiffs’ claims as well.
48 Eric Lagatta, Protests Continue Sunday in Downtown Columbus for Ma’Khia Bryant, Others Killed by Police, Columbus Dispatch (Apr. 25, 2021), https://www.dispatch.com/story/news/2021/04/25/protests-continue-sundaycolumbus-makhia-bryant/7377610002. 49 See Brownback v. King 141 S. Ct. 740, 748 (2021) (using a “cleaned up” parenthetical).
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This mootness argument fails. Even acknowledging that the department amended its

directives, much of Plaintiffs’ Complaint centers on not just the department’s written policies but

also how those policies are implemented in practice.

Thus, there is a live issue of whether Defendants have a policy, practice, or custom of using

excessive force and retaliatory infliction of pain on peaceful protestors.

D.

Factors for Preliminary-Injunctive Relief

1. Likelihood of Success on the Merits

Plaintiffs argue that Defendants use of non-lethal, or less-lethal, crowd-control tactics

violate their Fourth Amendment right to be free from excessive force and their First Amendment

right to protest without retaliation. Plaintiffs also allege that the Defendants are liable for violations

of Plaintiffs’ constitutional rights under a theory of municipal liability, under Monell v.

Department of Social Services, 436 U.S. 658, 691 (1978).

a. The Fourth Amendment (Excessive Force)

Plaintiffs contend that they have a strong likelihood of success on their claim that CPD’s

use of excessive force was violative of the Fourth Amendment. (ECF No. 6 at 23). Defendants

retort CPD’s use of force did not constitute a seizure because the protestors were free to leave—

in fact, they were ordered to do so, thereby demonstrating that Plaintiffs cannot succeed on their

Fourth Amendment claims and must rely instead upon the substantive Due Process Clause of the

Fourteenth Amendment. This Court reviews these arguments below. First, it considers whether a

seizure has occurred under the Fourth Amendment. After determining that it has, this Court

analyzes the reasonableness of force applied.

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(1) Seizure Violation of the Fourth Amendment requires an intentional acquisition of physical control. Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989). Thus, the threshold question this Court must resolve is: Has there been a seizure? The arrest of a suspect indisputably constitutes a seizure. Circumstances falling short of an arrest also might constitute a seizure, where an “officer, by means of physical force or show of authority, terminates or restrains [someone’s] freedom by movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254—55 (2007) (internal citations omitted). Such a seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” Brower, 489 U.S. at 597 (emphasis omitted). At the outset, this Court notes that Defendants’ reliance on Torres v. Madrid, 141 S. Ct. 989, 991 (2021), is misplaced. In that case, the issue was whether the application of physical force is a seizure if the force hits the targeted individual but fails to stop the person. Id. at 995. The Supreme Court said yes: “The application of physical force to the body of a person with the intent to restrain is a seizure, even if the force does not succeed in subduing the person.” Id. at 993. Defendants attempt to draw from this case a different principle—namely, that no seizure ever occurs unless an officer manifests an intent to restrain the subject. (ECF No. 61-1 at 14; ECF No. 64 at 2 n.2). But this is not what the Supreme Court held. Chief Justice Roberts even said as much: This approach improperly erases the distinction between seizures by control and seizures by force. In all fairness, we too have not always been attentive to this distinction when a case did not implicate the issue . . . But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule . . . Unlike a seizure by force, a seizure by acquisition of control involves either a voluntary submission to a show of authority or the termination of movement. Id. at 1001. Accordingly, the Court held in Torres that a woman was seized when officers shot her, despite her failure to yield to that force, as it amounted to a seizure by force given the officers’
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intent to restrain. Defendants ignore this distinction and instead argue that any circumstance lacking an intent to restrain falls outside the ambit of the Fourth Amendment entirely.50 That misreads Torres and aggressively narrows Fourth Amendment jurisprudence.
This case deals with both seizures by force and seizures by control. Defendants do not deny that Plaintiff Hazlett and Plaintiff Lynch were seized (by force) when they were arrested. An arrest, of course, is the quintessential seizure.
The rub here is whether other circumstances (falling short of an arrest) amounted to a seizure by the acquisition of control.
A constitutionally cognizable seizure can occur in crowd-control scenarios. Nelson v. City of Davis is instructive. 685 F.3d 867, 872 (9th Cir. 2012). There, a partygoing college student was shot in the eye by a pepper ball projectile fired from the weapon of a university officer attempting to clear an apartment complex of 1,000 partygoers. Such a large gathering created crowd-control difficulties and gridlock. Id. (recalling a partygoer described the event as “the biggest party in history”). The Nelson defendants issued a verbal order to disperse but lacked any means of amplifying their voices to a meaningful level. As their crowd-dispersal strategies proved unsuccessful, the officers found themselves overwhelmed by the crowd, including some individuals who threw bottles at a police vehicle. Some partygoers were attempting to leave the party, but police blocked their means of egress and did not provide any additional instructions on how to leave; the partygoers also raised their hands to show their willingness to comply. There was no audible warning or notice prior to shooting projectiles towards the partyers.
50 Because of the facts presented here, this Court hesitates to ignore the Torres Court’s language: “We do not accept the dissent’s invitation to opine on matters not presented here—pepper spray, flash-bang grenades, lasers, and more.” Id. at 998.
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Whether a constitutionally cognizable seizure by control can occur in protest scenarios is
a murkier landscape. The question before this Court is: Was there a seizure by control when the
police used less-lethal force, including pepper spray, tear gas, and physical force, to disperse—
rather than detain—activists, protestors, and congregants? Some courts answer this question in the affirmative51 and others in the negative.52 Others do not answer it at all and instead assume the Fourth Amendment applies.53 But there is a body of authority suggesting that the use of a chemical
agent or other less-lethal crowd control tactics over a demonstrating crowd constitutes a seizure
within the meaning of the Fourth Amendment. This Court finds three cases persuasive.
Predating the Floyd Caselaw are two instructive cases: Marbet v. City of Portland, No. CV
02-1448-HA, 2003 WL 23540258, at *10 (D. Or. Sept. 8, 2003), and Jennings v. City of Miami,
No. 07-23008-CIV, 2009 WL 413110, at *8 (S.D. Fla. Jan. 27, 2009). Within the Floyd Caselaw,
Downes-Covington v. Las Vegas Metropolitan Police Department, No. 220CV01790, 2020 WL
7408725, at *10 (D. Nev., Dec. 17, 2020) is useful. As analyzed below, in the cases, the courts
considered similar facts and reasoned that officers’ use of chemical irritants and physical force
could amount to a constitutionally redressable seizure.
First, the District Court of Oregon in Marbet reviewed officers’ use of force on
demonstrators protesting the policies of President George W. Bush while the president spoke at a
51 Lamb v. City of Decatur, 947 F. Supp. 1261, 1267 (C.D. Ill. 1996) (concluding that the officers’ use of pepper spray on protestors could support a finding of excessive force that constitutes a seizure); Marbet v. City of Portland, No. CV 02–1448–HA, 2003 WL 23540258, at *10 (“By physically moving certain plaintiffs and circumscribing the area of movement of other plaintiffs, defendants seized plaintiffs within the meaning of the Fourth Amendment.”); Jennings v. City of Miami, No. 07-23008-CIV, 2009 WL 413110, at *8 (S.D. Fla. Jan. 27, 2009); Coles v. City of Oakland, No. C03-2961 TEH, 2005 WL 8177790, at *2 (N.D. Cal. Apr. 27, 2005). 52 Dundon v. Kirchmeier, No. 1:16-cv-406, 2017 WL 5894552, at *20 (D.N.D. Feb. 7, 2017), aff’d mem. 701 F. App’x 538 (8th Cir.) (per curiam) (speculating no seizure occurred because the protestors were never arrested or affirmatively detained by the police). 53 Quraishi v. St. Charles Cnty., Missouri, 986 F.3d 831, 840 (8th Cir. 2021) (“This court did not consider whether the use of chemical agents alone is a seizure.”); Ellsworth v. City of Lansing, 34 F. Supp. 2d 571 (W.D. Mich. 1998), aff’d, 205 F.3d 1340 (2000); Edrei v. City of New York, 254 F. Supp. 3d 565, 574 (S.D.N.Y. 2017), aff’d sub nom. Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018).
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hotel in downtown Portland. Marbet, 2003 WL 23540258, at *10. The Portland Police Bureau used a loudspeaker to order protestors to move back 120 feet; plaintiffs and protestors allegedly ignored several orders to move, prompting officers to deploy pepper spray and move the crowd with force. Officers later fired rubber bullets at the demonstrators. In denying the motion to dismiss, the court reasoned that officers’ show of physical force and use of pepper spray each amounted to a seizure:
Defendants used pepper spray and physical force to achieve [the dispersal order]. Clearly[,] the effect of defendants’ actions was to control plaintiffs’ movement. Additionally, certain plaintiffs assert that they were physically prevented from leaving an area cordoned off by the police. By physically moving certain plaintiffs and circumscribing the area of movement of other plaintiffs, defendants seized plaintiffs within the meaning of the Fourth Amendment. Id. at 10. Thus, it found dispositive that officers acted intentionally to restrain plaintiffs’ freedom of movement. The Marbet court relied upon Lamb v. City of Decatur, 947 F. Supp. 1261, 1265 (C.D. Ill. 1996), which reviewed the City of Decatur’s motion for summary judgment in an action arising out of a demonstration, where officers sprayed pepper spray into the crowd of demonstrators. Lamb, 947 F. Supp. at 1265 (“This is not a typical excessive force case where the police were struggling with a fleeing felon or a rebellious prisoner. Instead, the police were monitoring a peaceful, lawful[,] and constitutionally protected demonstration.”). It denied summary judgment, reasoning that the complaint alleged facts that could support a finding of excessive force that constituted a seizure under the Fourth Amendment. Second, in Jennings, the Southern District of Florida found that plaintiffs sufficiently alleged that a seizure occurred where protestors alleged that they were peacefully observing, filming, or protesting when police opened fire on the demonstrators with tear gas, pepper spray,
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shotgun-based projectiles, and other weapons.54 Jennings, 2009 WL 413110, at *7. The police officers began marching shoulder-to-shoulder, continuing to fire projectiles at the peaceful demonstrators and observers. The court found a seizure occurred because officers’ tactic as “herding,” creating “a large encirclement perimeter,” and used riot-clad officers to form “a skirmish line to force the demonstrators in a desired direction” evinced an intentional government termination of protestors’ freedom of movement. Id.
Third, in accord with Jennings is a recent Floyd Caselaw action, Downes-Covington, where the District of Nevada reviewed a suit similar to the one presented here: demonstrators sought injunctive relief after being subjected to less-lethal force while protesting in the wake of Mr. Floyd’s death. A video documenting the event showed protestors retreating from a tank, which was flanked by two officers. Despite a dispersal order, some demonstrators were blocked: “[T]hey could not go forward over the freeway and could not go backward because police were blocking them.” Downes-Covington, 2020 WL 7408725, at *9. Protestors, in the video, are seen retreating away from the Interstate-15 on-ramp, mostly walking on the sidewalk, although due to the size of the crowd, some trickle onto the street where other officers are stationed. Id. While retreating, officers by the tank are seen firing some chemical irritant. The court found a cognizable seizure because the use of a tank corralling the protestors away from the on-ramp, while two or more officers blocked the street, suggested that protestors were seized. Id.
54 The Jennings court relied on Coles. Coles v. City of Oakland, No. C03-2961 TEH, 2005 WL 8177790, at *2 (N.D. Cal. Apr. 27, 2005). In Coles, the plaintiffs were demonstrators, legal observers, videographers, journalists, and dockworkers who were protesting the Iraq war. The Coles plaintiffs alleged that police officers fired projectiles into the crowd, charged the plaintiffs with motorcycles, and hit the plaintiffs with clubs. Id. They also alleged that the police herded them from the port area to the West Oakland BART station, a distance of more than a mile. Id. Defendants filed a motion to dismiss the plaintiffs’ Fourth Amendment claims, arguing that plaintiffs had not alleged a seizure. Id. at *4. The Coles court, relying in part on Marbet, found that plaintiffs had in fact been seized and noted that Defendants did more than just order the plaintiffs to disperse but “left Plaintiffs with only one available path by which to leave the scene and applied physical force to ensure that Plaintiffs followed that path.” Id. at *10.
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Thus, a constitutionally redressable seizure can occur where officers use physical force to prevent protestors from coming any closer, such as by herding protestors, forming a skirmish line, or failing to provide a means of egress—where such governmental action is intentional and results in the termination of freedom of movement. Jennings, 2009 WL 413110, at *9 (finding a seizure where officers clad in riot gear aligned in a skirmish line to force demonstrators in the desired direction through the use of excessive force); see also Rauen v. City of Miami, No. 06-21182-CIV, 2007 WL 686609, at *8 (S.D. Fla. Mar. 2, 2007) (“Plaintiffs’ freedom of movement was terminated by the deliberate use of force and skirmish lines to herd and then encircle Plaintiffs in an area in which they otherwise would not have been.”).
This Court now asks whether the type of force used—chemical agents, less-lethal projectiles such as wooden knockers, and physical force—militates in favor of finding that a seizure occurred. The dispositive question is one of control: Did the police control Plaintiffs’ and protestors’ movement through the use of force intentionally applied? See Florida v. Bostick, 501 U.S. 429, 435–36 (1991) (determining whether a seizure has occurred implicates the “coercive effect of the encounter” with police). Relevant factors that weigh in favor of a finding of a seizure of a person include the officer’s tone of voice, whether the officer displayed a weapon or handcuffs, wore a uniform, touched the individual without permission, or threatened or physically intimidated him. Id.
Plaintiffs allege that throughout last summer’s protests, they were peacefully observing, providing medical aid, or protesting when Defendants, often clad in riot gear, exercised an indiscriminate use of chemical irritants, physical force, and other weapons. Given that the standard for injunctive relief is a likelihood of success, the Court finds that the evidence and testimony from
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last year’s protests—explored summarily—suggest that Plaintiffs have met their burden as to the elements of a Fourth Amendment claim.
Here, some protestors were subject to physical force and less-lethal projectiles without a means of escape or egress, as Ms. Carlock’s testimony shows. She and other protestors complied with orders to leave the street for the sidewalk. Once they got up on the sidewalk, Ms. Carlock recalled being “herded” by horse-mounted officers who “started pushing into the crowd.” (ECF No. 49 at 198). The protestors—again, now on the sidewalk—asked: “[W]hat do you want us to do, what are you doing, where are we allowed to go, like, where should we stand . . . And there was no response that we got from them.” (Id.). Towards Fifth Street, there were non-mounted police officers blocking the cross street and the mounted officers on the other side. (Id. at 198–99). The group of fifteen protestors was “pinned . . . into that small area.” (Id. at 199). Officers threw a tear gas canister toward the protestors on the sidewalk. (Id. at 199 (“And it was almost impossible to get out of that spot we were in.”)). The group ran into an alley that had mostly been blocked off by a delivery truck, permitting just one person at a time to squeeze between the alley wall and the truck. Ms. Wenning’s testimony is of similar legal import. She recalled walking away in an alley after hearing a dispersal order. (ECF No. 47 at 157 (“I was walking away, so I felt I was leaving the area.”)). Yet, a tear gas canister was thrown into the alley into which she dispersed.
These circumstances are on all fours with Nelson—where officers deploy force and order dispersal but without a means of egress. Such restraint on movement amounts to a seizure. Nelson, 685 F.3d at 882–83 (“Additionally, there is nothing in the record that indicates that the group was told prior to the shooting how they should comply with the dispersal orders (particularly when the officers were blocking their primary means of egress) or that force would be used against them if they did not behave in a particular manner.”).
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CPD’s show of force during the Father’s Day Demonstration resulted in a similar termination of freedom. Mr. Bardus testified:
So[,] they showed up on their bikes[,] and they shoved folks out of the street toward the sidewalk. They turned their bikes sideways and basically pushed people. I remember one protest[o]r, a woman, fell in the street, and the officer continued to push her with his bike while she was on the ground. Several officers continued to hamper their efforts by shoving them with their bikes. (ECF No. 50 at 66). Ms. Ruffin testified similarly, stating that bicycle officers came to “push and physically move us to the side to allow more officers to come in.” (ECF No. 46 at 110–11). A body-worn camera video shows a CPD supervisor instructing officers that “the group at Broad and High is going to move. They’re not going to stay there . . . Tell them to move . . . We are going to move them by any means necessary – reasonably necessary. Everybody got that? Get your mace ready.” (Pl.’s Ex. 123-A). Moments later, these same officers, now mounted on bikes, ride into individuals standing on the sidewalk, spraying chemical irritants broadly, without provocation. (Pl.’s Exs. 123-A, 123-B). Unfortunately, this use of bicycles was not the only way CPD exerted physical force. Recall that Ms. Mixon testified as follows: “And one of the officers pushed me down so hard off the curb . . . he stomped on my kneecap.” (ECF No. 47 at 74–75). It is not fatal to the sufficiency of the Fourth Amendment claim that Plaintiffs were not completely immobilized by CPD’s use of force. Rather, what is required is that a person’s freedom of movement had been terminated, not that the person’s movement itself had been terminated. Yelverton v. Vargo, 386 F. Supp. 2d 1224 (M.D. Ala. 2005) (“[Defendant’s] pepper[-]spraying of [Plaintiff] constituted a seizure even though it did not stop him.”). Even if a “citizen is able to walk or hobble away,” a seizure still lies, so long as there was an intentional application of physical force. Jennings, 2009 WL 413110, at *7. The impact that chemical irritants and less-lethal
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projectiles, such as tear gas, pepper spray, and knee knockers had on the congregants also support Plaintiffs’ argument that they were seized. Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1163 (9th Cir. 2011) (explaining that pepper spray is “‘intermediate force’ that, while less severe than deadly force, nonetheless present[s] a significant intrusion upon an individual’s liberty interests”).
Accordingly, even absent an arrest, the use of chemical spray and less-lethal projectiles can amount to is a cognizable restraint under the Fourth Amendment where the “clear[]” effect of officers’ use of pepper spray “was to control plaintiffs’ movement.” Marbet, 2003 WL 23540258, at *10; see also Hamilton v. City of Olympia, 687 F. Supp. 2d 1231, 1241 (W.D. Wash. 2009) (“[H]is freedom of movement was terminated in both instances after he was sprayed with pepper spray.”). Here, the impact of the pepper spray often literally rendered the protestor unable to move freely. And the evidence establishes much more than a minimal intrusion on the protestors’ bodily integrity; many of the protestors suffered disorientation or were otherwise physically impacted. (ECF No. 47 at 114 (recalling that sprayed protestors hit the ground and were screaming); Pl.’s Ex. 113 (showing a pepper-sprayed individual crawling away)).
Projectiles like knee knockers also denied protestors of their movement. Plaintiff Hubby was standing on the sidewalk when, without audible warning, he was hit with a wooden munition. His knee went numb, and he was unable to stand independently, prompting about a dozen demonstrators to fashion a rental bicycle into a gurney to transport Mr. Hubby. (ECF No. 48 at 234). Plaintiff Schultz was also hit with a knee knocker, which brought her to the ground. (ECF No. 49 at 127). She recalled: “I was struck with something so hard that it brought me to the ground. I went to get back up and I couldn’t . . . I went to take a step with my right leg[,] and it just dropped from underneath me. It was kind of like dead-legged . . . Every time I tried to get up, I would fall back down.” (Id. at 127–28). A friend swung Ms. Schultz’s right arm over her shoulder and helped
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transport her to an alleyway. (Id.; see also ECF No. 49 at 28 (recalling “ducking,” “dodging” officers shooting projectiles at them while complying with a dispersal order)).
This Court finds that Plaintiffs’ allegations are sufficient to set forth a likelihood of success on the merits that the deployment of less-lethal munitions constituted physical force that temporarily restrained the protestors. See Pluma v. City of New York, No. 13 CIV. 2017 LAP, 2015 WL 1623828, at *4 (S.D.N.Y. Mar. 31, 2015) (same). The intentionality requirement of the Fourth Amendment seizure analysis is fulfilled since there is no dispute that the protestors were the target of police conduct when the officers held out their hands and sprayed the protestors indiscriminately. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006) (quoting Fisher v. City of Memphis, 234 F.3d 312, 318 (6th Cir. 2000)) (“[W]e emphasized that police officers seize those persons who are the ‘deliberate object of their exertion of force.’”). Regardless of officers’ motives, their application of force terminated the protestors’ freedom of movement and constituted a seizure under the Fourth Amendment.
(2) Reasonableness of Force A seizure results in a constitutional violation only if it is unreasonable. Graham v. Connor, 490 U.S. 386, 394 (1989). The reasonableness of a particular use of force should be judged from the perspective of a reasonable officer on the scene—not with the benefit of hindsight. Graham, 490 U.S. at 396. In addition, the Sixth Circuit has determined that a police officer may be responsible for another officer’s use of excessive force if the officer: (1) actively participated in the use of excessive force; (2) supervised the officer who used excessive force; or (3) owed the victim a duty of protection against the use of excessive force. Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011).
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The objective reasonableness of a seizure depends upon a balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).55
Three factors must be used in determining the degree of force employed: (1) the nature or “severity” of the crime for which the suspect is charged; (2) whether the suspect poses any threat to the officers or others; and (3) whether the suspect has attempted or is likely to attempt to flee officers or to resist arrest. Whether the officer had other means of force available is not relevant to the inquiry. Lyons v. City of Xenia, 417 F.3d 565, 576 (6th Cir. 2005). The question is whether a reasonable officer would have known the actions used were objectively unreasonable, not that there existed a less intrusive means.56
The first factor, the severity of the crime at issue, weighs heavily in Plaintiffs’ favor and against the use of force employed by the officers. Testimonial, video, and pictorial evidence establish that most congregants were peacefully protesting, observing, reporting, passing by, or providing medical aid when they fell victim to the use of these less-lethal munitions. The protests were mostly peaceful—the incident commander for CPD said as much on June 2, 2020: “99% of these people are peaceful . . . whether they’re yelling stuff at you or not, that’s still peaceful there if they’re not threatening you.” (Pl.’s Ex. 25). Even those Plaintiffs that were committing crimes— e.g., failure to disperse—were committing a minor misdemeanor under O.R.C. § 2917(d). While a legally punishable offense, failure to disperse is a minor infraction that justifies raised voices,
55 Prior to Garner and Graham, most § 1983 excessive-force cases were litigated under the substantive due process “shocks the conscience” theory. Defendants contend that the Fourth Amendment is inapposite here and that Plaintiffs must instead proceed under the Fourteenth Amendment. 56 While courts, including the Sixth Circuit, offer considerable deference to the apparent need for officers to make split-second judgments concerning the level of force necessary, scholarly commentary has questioned how much deference should be paid, particularly when the totality of the circumstances suggest there was time for thoughtful reflection. Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006).
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not raised weapons. See Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, 466 F. Supp. 3d 1206, 1215 (W.D. Wash. 2020) (“At most, this evidence shows that Plaintiffs, and many protestors alike, were engaging in minor property crime and offered only passive resistance at the time they were attacked.”). That CPD felt the need to clear the streets might be legitimate. But in the absence of an actual exigency, these traffic concerns cannot legitimize the application of force when it is not otherwise justified. Nelson, 685 F.3d at 880.
Moving to the second Graham factor, the threat analysis must be based on objective factors and not merely “a simple statement by an officer that he fears for his safety or the safety of others.” Nelson, 685 F.3d at 880. In this case, the protests were not overwhelmingly dangerous scenarios for officers clad in riot gear and armed with guns and other munition-deploying devices. And there is no allegation that these Plaintiffs engaged in any sort of destructive or harmful behavior aimed at the police. (Cf. Defs.’ Exs. 30—40, 56 (showing property damage but without any connection to the Plaintiffs or witnesses here)). “These are peaceful demonstrators, journalists, and medics who have been targeted with extreme tactics meant to suppress riots, not to suppress demonstrations.” Abay v. City of Denver, 445 F. Supp. 3d 1286, 1292 (D. Colo. 2020). Under the Plaintiffs’ allegations, the security threat posed by the protest was low. On the other hand, recent events in Washington, D.C., and across the nation emphasize the need for robust security, particularly of governmental buildings—which, of course, tend to be the locus of First Amendment activity. But the current record still presents unanswered questions as to whether the level of force applied was reasonable.
Third, the factors that justify the use of force must be weighed against the degree of intrusion posed by the particular type of force to determine if the use in the particular instance was reasonable. The totality of the circumstances suggests objective unreasonableness: the disparity
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between the threat posed by the protest and the degree of force is wide, and the Defendants have not pointed to the existence of a specific exigent circumstance justifying the use of non-lethal force. There is no evidence that the officers reasonably believed that Plaintiffs posed a risk to the officers or any other persons, and the group engaged in passive resistance, at most, by failing to disperse immediately if and when such an order was given.
Many of these instances of force were without provocation or applied at random and indiscriminately. A video from May 30 shows a CPD officer deploying chemical spray against individuals who already appear to be suffering from a prior deployment of chemical spray. It shows officers in riot gear spray one individual in the intersection at point-blank range, and then the same officer pivots and sprays another individual in her face. (Pl.’s Ex. 112; see also Pl.’s Ex.117 (horsemounted officers hurling tear gas canisters into the crowd; bicycle officers spraying chemical irritants at point-blank range); Pl.’s Ex.118 (same, from a different angle)). Another video shows a SWAT officer deploying chemical spray at point-blank range against two people standing on the sidewalk. (Pl.’s Ex. 107).
There is a mountain of evidence that some protestors were confronted with less-lethal munitions while trying to follow police orders to leave the demonstrations. (See, e.g., Pl.’s Ex. 137 (walking away while sprayed); Pl.’s Ex. 128 (spraying individuals as they walk away); Pl.’s Ex. 147 (spraying individuals standing still or walking away); Pl.’s Ex. 101 (spraying Plaintiff Mixon while she walks on the sidewalk away from the officers); ECF No. 47 at 157 (“I was walking away, so I felt I was leaving the area,” before being subjected to tear gas)). See also Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150, 1155 (D. Or. 2020) (finding a strong likelihood of success on the merits where tear gas was used against protestors trying to follow police orders and leave the demonstrations). Furthermore, the video evidence of police conduct shows that most of
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the officers had ample time for reflection, often while the officers are actually talking with the tobe-sprayed individual. (See Pl.’s Exs. 140-A, 140-B (ignoring journalists’ statements that they were exempt from curfew); ECF No. 46 at 230 (striking a journalist with a wooden munition, though he bore his press badge)).
Also militating strongly against a finding of reasonable force is that CPD routinely failed to give coherent dispersal instructions to protestors. Accordingly, Defendants’ reliance on Dundon v. Kirchmeier, No. 1:16-CV-406, 2017 WL 5894552, at *18 (D.N.D. Feb. 7, 2017), aff’d, 701 F. App’x 538 (8th Cir. 2017) is unpersuasive. There, Plaintiffs could have complied with lawful commands to disperse. Dispersal orders were either not provided or unintelligible. Witnesses testified to “muffled,” “garbled,” and “not very clear” orders preceding the deployment of sprays, munitions, or the exercise of physical force. (ECF No. 46 at 65; ECF No. 47 at 157; ECF No. 46 at 32, 37, 58).
Other times, the dispersal orders were given contemporaneously with the use of less-lethal crowd control devices. For a dispersal order to be meaningful, officers generally must give time for a dispersal order to be heeded before the use of force. (ECF No. 48 at 219–20 (stating that, at any rate, that he did not hear any message)). Similarly, Ms. Lamey was struck with a knee knocker four minutes after first hearing the dispersal announcement. Four minutes is not enough time for congregants to comply with officers’ orders. Officers sometimes rode their horses or bikes into crowds while giving a dispersal order—a constitutionally deficient dispersal order given that there was little time to comply. This, too, tracks Nelson’s logic. A dispersal order given moments before the exercise of force demonstrates a likelihood of success on whether there was an unreasonable use of force. Nelson, 685 F.3d at 881 (noting the object of the police force “certainly could not have been expected to comply with instructions that were never given to him.”).
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While it is undisputed that there were individuals hurling both bottles and provocative expletives at officers, Defendants do not allege that Plaintiffs were among them. Nor do Defendants claim that the individuals causing the problems were so numerous that the two categories of demonstrators were indistinguishable. The application of force to Plaintiffs, therefore, could not have been justified by the government’s interest in stopping any disorderly behavior. Nor, even if this Court were to consider all the demonstrators as a single entity, was the desire to clear the area a sufficient justification for employing the force used by the government— the firing of less-lethal force, resulting in this instance in serious and permanent injuries to multiple individuals. This force resulted in substantially more than a minimal intrusion and was not justified by the governmental interest in dispersing a group of peaceful protestors and congregants who could most likely be dispersed by less forceful means.
This Court, therefore, concludes that the force used by the government was unreasonable and resulted in a violation of the Plaintiffs’ Fourth Amendment rights. Defendants’ conduct— specifically, the reliance on the use of less-lethal force during the protests—is so excessive as to constitute a violation of constitutional rights, thus raising the specter of imposing liability under § 1983. Nelson, 685 F.3d at 874. There may later be questions of qualified immunity to grapple with, but Plaintiffs have established a strong likelihood of success that Defendants engaged in excessive force contrary to the Fourth Amendment. Abay v. City of Denver, 445 F. Supp. 3d 1286, 1292 (D. Colo. 2020) (finding strong a likelihood of excessive force in protestor after Mr. Floyd’s killing).
b. First Amendment (Retaliation) “[T]he First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.” McCutcheon v. Fed. Election Comm’n, 572
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U.S. 185, 203 (2014). “Organized political protest is a form of ‘classically political speech.’” Don’t Shoot Portland, 465 F. Supp. 3d at 1155 (quoting Boos v. Barry, 485 U.S. 312, 318 (1988)). And this protection includes criticism of public officials even when it is “vehement, caustic, and sometimes unpleasantly sharp.” Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007) (internal citations omitted).
To establish a First Amendment retaliation claim, plaintiffs must show that: (1) they were engaged in a constitutionally protected activity; (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct. Martin v. Brown-Clark, 76 F. App'x 701, 706 (6th Cir. 2003). At this stage, Plaintiffs have made a clear showing of all three elements.
First, Plaintiffs show that they were engaged in the constitutional right to protest police brutality. They exercised their right in public fora. On this record, their protests have been passionate but peaceful, and they must thus be protected even if they stand in opposition to the police. The video and testimonial evidence reveal as much. Both parties agree that some demonstrators were violent, launching objects at the police. This, no doubt, poses a serious threat to officer life and safety. But, as to these protestors, per Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996): “[T]he proper response to potential and actual violence is for the government to ensure an adequate police presence, and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.” 110 F.3d at 1372.
Second, CPD’s use of less-lethal crowd-control weapons has surely chilled speech. Exposure to tear gas and pepper spray is extremely painful, as are projectiles lobbed into the crowd,
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which resulted in lasting and serious physical injuries. Though “less lethal,” these devices have been sufficient to deter some protestors from protesting again. “Ordinary firmness” is an objective standard that will not “allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity.” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999).
Third, Plaintiffs have demonstrated a likelihood of success on the merits that the nature of the protests was a substantial or motivating factor in CPD’s use of less-lethal force on nonviolent protestors. CPD characterized the protests as antipolice, and division personnel echoed that message throughout the duration of the protests. Recall then-Chief Quinlan’s June 2, 2020 roll call speech to officers: “And if you go one step too far one way, you end up aggravating or provoking a situation. And with the situation when we’re the focus of the protest, we can’t afford to be the ones that create that provocation. We just can’t . . . It’s a lot easier when they’re protesting something else.” (Pl.’s Ex. 25 (emphasis added); Pl.’s Ex. 4 (citing Quinlan Aff. ¶ 6) (“The police were the focus of the protests.”)). This attitude seeped its way into the treatment of individuals in the vicinity of the protest, most notably, Plaintiff Mixon, the non-protestor who traveled downtown to find her 21-year-old daughter. Ms. Mixon testified that a CPD officer pushed her off of the curb, stomped on her left kneecap [breaking it], and stated to her: “That’s what you get for being down here, you black, protesting bitch.” (ECF No. 47 at 74–75).
The use of force on nonviolent protestors and congregants raises a serious question if officers acted in reaction to the protests’ antipolice message and aimed to intimidate protestors to deter such speech. This is especially so because the allegations and evidence submitted appear to show that at least some Plaintiffs—peaceful protestors or passersby—were targeted and not inadvertently hit.
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This evidence supports a finding that Plaintiffs have made a showing of a likelihood of success of the merits on their First Amendment claim.
c. Municipal Liability under Monell Local governments may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by employees or agents under a respondeat superior theory of liability. See Monell, 436 U.S. at 691. “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. A municipality can therefore be held liable when it unconstitutionally “implements or executes a policy statement, ordinance, regulation, or decision officially adopted by that body’s officers.” Id. at 690; DePiero v. City of Macedonia, 180 F.3d 770, 786 (6th Cir. 1999).57 To demonstrate Monell liability, one must: (1) identify the policy or custom; (2) connect the policy to the governmental entity; and (3) show causality—i.e., that an injury of a constitutional magnitude occurred because of that policy or custom’s execution. Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (internal citations omitted).58 Of these, courts’ analyses hinge on the proof of an illegal policy or custom. There are four ways a plaintiff may prove the existence of a municipality’s illegal policy or custom: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision-making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of
57 The term “policy” has been defined broadly as a deliberate choice to follow a course of action made from various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Arsan v. Keller, 784 F. App’x 900, 917 (6th Cir. 2019). 58 Defendants contend that Plaintiffs have failed to identify a policy or custom that authorizes officers to use excessive force against nonviolent protestors or to retaliate against them based on their assembly and expression. (ECF No. 10 at 23). Defendants further argue that even if Plaintiffs could identify such a policy or custom, their claims against the City would still fail because they cannot establish causation or culpability sufficient for municipal liability.
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tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). Each of these four sub-prongs is addressed, in turn, below:
(1) Illegal Official Policy or Legislative Enactment The easiest (and thus rarest) sort of Monell case is one where there is a written unconstitutional policy. Defendants argue that Plaintiffs do not identify any written policy that directs or allows Columbus police officers to use excessive force of any kind or to retaliate against protestors on the basis of their speech and assembly. (ECF No. 10 at 23). Plaintiffs acknowledge that they do not challenge “a single, particular City or CPD policy.” (ECF No. 6 at 19). While Plaintiffs do cite numerous policies, which they characterize as problematic or illegal, Plaintiffs focus primarily on the remaining three sub-prongs of municipal liability, and this Court follows suit.
(2) Actions by Officials with Final Decision-Making Authority & Ratification The second type of Monell liability involves a showing of an illegal policy or custom by demonstrating that an official with final decision-making authority ratified illegal actions. Lipman v. Budish, 974 F.3d 726, 747 (6th Cir. 2020). To establish a § 1983 claim against a municipality based on the ratification theory, a municipal official with the final policymaking authority must approve the subordinate’s decision and the basis for it. Killinger v. Johnson, 389 F.3d 765, 772 (7th Cir. 2004). The ratification theory of municipal liability does not require proof of a pattern or custom. Wilson v. Louisville-Jefferson Cnty. Metro Gov’t & Brett Hankison, No. 3:19-CV-00739CRS, 2020 WL 981717, at *2, 2020 U.S. Dist. LEXIS 34437, at *4–6 (W.D. Ky. Feb. 26, 2020). Instead, ratification of a single violative act is enough for municipal liability to attach. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). An official acting with the final decision-making authority may ratify the unconstitutional acts of its employees in two ways. The first is through
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“affirmative approval of a particular decision made by a subordinate.” Feliciano v. City of Cleveland, 988 F.2d 649, 650 (6th Cir. 1993). The second is by “failing to meaningfully investigate and punish allegations of unconstitutional conduct.” Wright v. City of Euclid, 962 F.3d 852, 882 (6th Cir. 2020); see also Wilson, 2020 WL 981717, at *2 (“[T]he Sixth Circuit has held that municipal liability may attach when an official with final decision-making authority and a duty to know and act upon unconstitutional conduct fails to investigate or correct the unconstitutional conduct.”).
Here, Plaintiffs assert that then-Chief Quinlan was the final policymaker on police practices and provided the “marching orders” to quell the protests, rather than just to prevent a riot—and that resulted in their constitutional violations. As for proof, Plaintiffs claim that in Columbus, a pattern or practice has long existed of flouting the letter or spirit of CPD policies against excessive use of force, favoring the right to protest, or racially discriminating. What happened to Plaintiffs and other protestors went beyond that pattern or practice because the then-Chief issued the policies the officers were implementing against Plaintiffs and other protestors.
Assuming Plaintiffs’ allegations are true—that police were armed with military-grade equipment and had a green light to spray pepper spray, deploy tear gas, and fire wooden pellets to inflict pain as a deterrent—then, the consistency of officers’ alleged actions supports the assertion that officers were implementing CPD customs or policies. In other words, this Court finds that Plaintiffs have shown a likelihood of success on the merits of a Monell claim, insofar as it is premised upon ratification of illegal actions by officials with final decision-making authority.
(3) Failure to Supervise and Discipline Plaintiffs assert that Columbus police officers received minimal and ineffective training from Defendants City and CPD Chief and were subject to vague, ineffective, and rarely enforced
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policies regarding the need to handle protestors without using force or using the least amount of non-lethal force necessary. (ECF No. 6 at 4). This is essentially an allegation of omission—that Defendants had a “custom” of failing to supervise and discipline. A custom, for purposes of Monell liability, must “be so permanent and well settled as to constitute a custom or usage with the force of law.” Monell, 436 U.S. at 691. It must reflect a course of action deliberately chosen from among various alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985).
This contention, Defendants retort, is also unsupported. True, Defendants admit that inadequate police training and supervision can demonstrate an improper policy or custom for purposes of municipal liability—but only when the purported failures to train or supervise amount to deliberate indifference to the rights of persons with whom the police come into contact. (ECF No. 10 at 27). Defendants insist that Plaintiffs cannot show that the training or supervision of Columbus police officers was, or is, lacking or inadequate because all officers receive extensive training, which includes instruction on community diversity and the inappropriateness of biasedbased profiling. With respect to the use of chemical spray, sworn officers are not permitted to carry chemical spray until training and qualification standards have been satisfied. (ECF No. 10 at 28).
Plaintiffs identify multiple deficiencies and inadequacies in CPD’s use-of-force or civil disorder and crowd control training or supervision. For example, the crowd-control training instructed that not all protestors standing with their hands raised were peaceful, that children and the elderly were pawns and shields, that volunteers distributing water on a hot day were fomenting violence, and that protestors wearing protective gear for fear of CPD force were “not actually nonviolent,” so officers needed to be “mentally prepared to use force” against them. (Mabry Aff. ¶¶ 5278−81, 5287−88). CPD’s directives and instructions for its officers to collectively punish
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nonviolent demonstrators, even though using the force they had been trained to use, was palpably excessive.
As to discipline, even though the Mayor and then-Chief admitted officers’ video-recorded conduct was improper, there have been zero reports by officers of excessive force by others during the protests, zero disciplinary actions or criminal charges for excessive force, and zero efforts to relieve violent officers from duty or to remove them from special response teams. (ECF No. 63 at 8).
Plaintiffs have also demonstrated a likelihood of success on the merits of Monell liability based upon failure to supervise or discipline.
(4) Custom or Tolerance of Acquiescence Finally, to proceed on an “inaction theory” of liability—i.e., a custom or tolerance of acquiescence—a plaintiff must show: (1) the existence of a clear and persistent pattern of [illegal activity]; (2) notice or constructive notice on the part of the [defendant]; (3) the [defendant’s] tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and (4) that the [defendant’s] custom was the ‘moving force’ or direct causal link in the constitutional deprivation. Stanfield v. Lima, 727 F. App’x 841, 851 (6th Cir. 2018) (quoting another source). One instance of potential misconduct is insufficient to show a clear and persistent pattern of constitutional violations. Stewart v. City of Memphis, 788 F. App’x 341, 347 (6th Cir. 2019). Such a pattern, however, is shown by “enough similar incidents” sufficient to put officials on notice that persons “would be subject to constitutional deprivation” if the problem is not remedied. See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989). For instance, in Lipman v. Budish, the Sixth Circuit held that allegations of six different instances in which county officials interviewed a potential child abuse victim in the presence of her alleged abusers
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were “enough to draw the reasonable inference that this custom [of interviewing potential abuse victims in the presence of their alleged abusers] was widespread throughout [the County Division of Children and Family Services] and known to policymakers within the county.” 974 F.3d 726, 748 (6th Cir. 2020). Therefore, the court decided these allegations were sufficient to survive a motion to dismiss. Id.
The required showing is that the “evidence must show that the need to act is so obvious” that the “conscious decision not to act” amounts to a “policy of deliberate indifference” toward the Plaintiffs’ constitutional rights. Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 508 (6th Cir. 1996). Deliberate indifference requires “proof that a municipal actor disregarded a known or obvious consequence of his action.” Miller v. Calhoun Cnty., 408 F.3d 803, 815 (6th Cir. 2005). This “requires proof that the municipality was aware of prior unconstitutional actions by its employees and failed to take corrective measures.” Id.
In the present case, Plaintiffs allege that the City has an unwritten policy, practice, or custom of condoning the use of excessive force against some protestors, such as those protesting police violence. They argue specifically that the use of excessive force and the quelling of speech by police during peaceful protests demonstrated Defendants’ deliberate indifference in the policies, training, supervision, and discipline needed to prevent officers and mutual-aid law enforcement personnel from violating constitutional rights. This alleged failure to investigate or discipline, or to make any meaningful policy reforms, suggests a conscious choice to allow the pattern of alleged conduct to continue.
Plaintiffs also allege that Defendants’ custom of acquiescence was the cause of their injuries. The Sixth Circuit has held that a municipality’s failure to act in the face of obvious
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constitutional violations is properly treated as the cause of subsequent, similar violations. Leach, 891 F.2d at 1248.
Defendants state that Plaintiffs have failed to provide any evidence of a pattern or practice of CPD using excessive force on nonviolent protestors or retaliating against them on the basis of their speech and assembly. As a legal matter, Defendants concede that a failure to discipline or investigate can demonstrate a municipal policy or custom “if the plaintiff can show that the municipality historically failed to investigate or discipline similar conduct such that the municipality’s inaction represents an unofficial custom or tolerance.” (ECF No. 10 at 25 (citing Bear v. Del. Cnty., Case No. 2:14-cv-00043, 2016 U.S. Dist. LEXIS 6537, at *38 (S.D. Ohio Jan. 20, 2016))). But Defendants assert that Plaintiffs’ claim still is insufficient because, per Sherrod v. Williams, “an after-the-fact approval of an officer’s conduct cannot logically be the moving force behind the constitutional violation.” 2019 U.S. Dist. LEXIS 8915, at *70−71 (S.D. Ohio Jan. 15, 2019) (citing another source).
Accepting Plaintiffs’ allegations as true, it is at least plausible that CPD’s alleged failure to act on city officials’ knowledge of potential constitutional violations over the course of several days of protests was the “moving force” behind subsequent violations of the same type. Therefore, in addition to the “ratification” theory of liability, Plaintiffs have also adequately pled all four elements of the “inaction theory” of municipal liability under Monell.
Thus, even though the mayor and then-Chief Quinlan admitted officers’ video-recorded conduct was improper, there have been zero reports by officers of excessive force by others during the protests, zero disciplinary actions or criminal charges for excessive force, and zero efforts to relieve violent officers from duty or remove them from special response teams. (ECF No. 59).
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(5) Finding on Monell Factors The video and testimonial evidence presented by Plaintiffs suggests that police have used physical violence, tear gas, and pepper spray against peaceful protestors without provocation, and city officials have done nothing or not enough to condemn and correct these actions. This evidence leads to the inference that Plaintiffs have a likelihood of success in establishing that unconstitutional conduct by police was carried out pursuant to an official policy or custom.
2. Irreparable Harm Irreparable harm is nearly as crucial as the success factor: “Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22−24. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Here, Defendants argue that: (1) it is likely that Plaintiffs will again be subject to the alleged unconstitutional conduct; (2) their delay in seeking an injunction further undercuts their argument that they will suffer irreparable harm without it; (3) when a defendant voluntarily ceases the alleged offending conduct, a cognizable danger of recurrent violation is not shown; and (4) Plaintiffs have not shown irreparable injury because they do not actually attempt to enjoin unconstitutional policies (this basically appears to be an overbreadth argument). (ECF No. 10 at 34). This Court finds that Plaintiffs have demonstrated irreparable harm. Protests combatting police brutality against Black Americans have proven cumulative. Protests are inherently ongoing, and it is often difficult to tell where one protest ends and the next begins. There is nothing in the record that indicates that upon another protest, Plaintiffs will not experience further constitutional deprivations and physical harm at the hands of the police. Indeed, Plaintiffs and witnesses have
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attended multiple protests and were twice subject to problematic police treatment. Because “a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001).
3. Balance of the Equities When considering the third factor, the balance of equities, a court “must balance the competing claims of injury” and “consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotations omitted). Police officers are often faced with dangerous and rapidly evolving situations while trying to enforce the law and maintain the safety of the public. And, societally, we have determined it is important that police officers have non-lethal options to use to protect themselves and the public when necessary. Most protests tend to have an element of violence or destruction—and even when nonviolent, they are, by definition, disruptive. The locus of First Amendment activity often is public buildings, the risk of a protest overflowing—intentionally or not—into the citadels of republican democracy is nontrivial. Recent events—including the January 6 attempted insurrection at Capitol Hill, the breach of Governor Inslee’s mansion in Washington on the same day, the December 2020 armed breakin to the Oregon state capitol, armed protestors rallying inside the Michigan Statehouse last May, a recent break-into Bellingham City Hall—reify the extent to which many of us rely on police officers to keep our communities and those who serve the government safe. But the relief that Plaintiffs request leaves open all lawful options for police to use reasonable force when necessary to defend against a threat and to make arrests when supported by probable cause. And any possible benefit police officers could gain from deploying chemical agents, projectiles, or striking weapons
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against demonstrators who pose no threat and are not resisting lawful commands is outweighed by the irreparable harm peaceful protestors could face.
4. Public Interest The final factor, the public interest, also weighs in favor of an injunction. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). Because the Plaintiffs have established a likelihood of success on the merits of their constitutional claims, an injunction to prevent further irreparable constitutional harm is in the public interest.
5. Scope of Preliminary Injunction Having found that a preliminary injunction is warranted, this Court turns to the scope of the injunctive relief. This Court hereby ORDERS the following: (1) Defendants are restrained from using non-lethal force, including tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling, on nonviolent protestors to enforce dispersal orders, traffic laws, such as clearing the streets or sidewalks, and/or misdemeanors, that were not committed with actual or imminently threatened physical harm or property destruction; (2) Defendants are required to recognize that, for purposes of the injunction, “nonviolent protestors” includes individuals who are chanting, verbally confronting police, sitting, holding their hands up when approaching police, occupying streets or sidewalks, and/or passively resisting police orders;
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(3) Defendants may only enforce dispersal orders, traffic laws, such as clearing the streets or sidewalks, or misdemeanor enforcement, to the extent practicable, through citations or arrests, based on probable cause that an individual has committed a violation;
(4) Defendants are prohibited from using the infliction of pain to punish or deter “nonviolent protestors” and are directed to limit infliction of pain on any protestor when incidental to a use of force necessary for preventing crimes committed with actual or imminently threatened physical harm or property destruction and/or arresting, based on probable cause, an individual who allegedly committed such an offense;
(5) Defendants must ensure that body and vehicle cameras are in good working order and used during every interaction with “nonviolent protestors” and badge numbers and/or identity cards are prominently displayed in each such interaction, even when riot gear is being worn;
(6) Defendants must recognize that individuals legitimately displaying “press,” “media,” “reporter,” “paramedic,” “medic,” “legal observer,” or similar words and/or symbols are permitted to be present in a position enabling them to record at protests and/or to intervene to assist individuals who appear to have been injured and that all individuals, regardless of their occupation or nonviolent activity, are permitted to record at protests or whenever any police officer interacts with the public; and
(7) The City of Columbus and its Division of Police must request that mutual aid law enforcement personnel to cooperate with them adhere to the foregoing restraints or standards on the use of non-lethal force and enforcement, infliction of pain, cameras and identification, and recognition of “nonviolent protestors” and individuals assisting or observing them.
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V. CONCLUSION For the reasons set forth above, this Court GRANTS Plaintiffs’ Motion for Preliminary Injunction because: (1) they have standing to sue and the matter is not moot; (2) they have demonstrated a likelihood of success on their Fourth Amendment excessive-force claim, FirstAmendment retaliation claim, and the municipal-liability factors under Monell; (3) they have established irreparable injury because protests, especially against police brutality, are inherently ongoing; (4) the balance of the equities tilts in Plaintiffs’ favor; and (5) the public interest weighs in favor of an injunction because it seeks to prevent the violation of constitutional rights. IT IS SO ORDERED.

DATED: April 30, 2021

ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT JUDGE

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