NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0779n.06 No. 11-3123 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT EDWARD F . HAYS, ) ) P laintif f-App ellant, ) ) ON AP P EAL FR OM THE v. ) UNITED STAT ES DIS TRICT ) COURT F OR THE NORT HERN AARON BOLTON; RICHARD ) DISTRICT OF OHIO GR ASSING; VERM ILION POLICE ) DEP ARTMENT; ROBERT KISH; ) CITY OF VERMILION, ) ) Defendan ts-Appellees. )

BEFORE: SUHRHEINRICH, MOORE and CLAY, Circ uit Jud ges. SUHRHEINRICH, Circuit Judge. After a jury acquitted him of domestic violence ag ainst his daug hter, De fenda

nt-Appellant Edwar d Hay s broug ht va rious claims ag ainst those responsible for his arr est: the City of Ver milli on, the Ver

milli on Police Depa

rtment, Ver

milli on P o l i ce C h i ef Robert Kish, and Ver

milli on Police Officer s Bolton and Gra ssnig. The district court found that Offic ers Bolton and Gra ssnig wer e entitled to qualified immunit y and d i s m i s s ed eac h of Hay s’ claims. Hay s appea ls. For the r easons state d, we AF F IRM

. I. Background This case arises from the arr est and subsequent prosec ution of Def endant- Appellant Edwar d Hay s (Hay s) for dome stic violence a g ainst his then-eig hteen y ear old daug hter He ather

.No. 11-3123

Hays v . Bolton, et al. L ate on the night of Dec ember 7, 2008, Hea ther, a ng ry beca use Hay s had g rounded her for ly ing about her wher eabou t s ea rlier that night, told her pare nts that she was moving out of their home. Hea ther admitted at trial that she had previously threa tened to move out but had nonetheless continued t o l i v e wi t h h er parents. Hea ther packed her belonging s while fighting loudly with her mother and Hay s y elled at her to be quiet. When Hea ther did not s top scre aming , Hay s emer g ed from his be droom and told he r “if y ou’re g oing to le ave, y ou need to le ave, but this fig hting has to stop. Hay s put one hand on Hea ther’s shoulder and walked wit h her down the s tairs and out the door, locking the door behind her. Although Hea ther’s slip-on shoes had fallen off while being led down t he st airs, Hay s testified t hat he did not know Heather was barefoot when he locked her out of the house. T he temper ature that night was approximately nineteen de g ree s with a wind chill of fourtee n deg ree s and there was snow on the g round. Hea ther’s friend Br ie had driven to the Hay s residenc e and was waiting outside when Hay s locked her out. Although her fee t wer e one or two siz es smaller than Hea ther’s, Br ie g ave Hea ther her shoes to wea

r. Hea ther then rea liz ed that she had forg otten some of her things inside the home. At 11:35 p.m., she called the Ver milion P olice De partment, telling them: I was like, dad, I need my stuff. I f I don’t have my stuff I ’ll call a police office r over here so I can g et my clothes and he threw me out wi t h o u t an y s h o es on. I was bare foot and my

friends c ame a

nd I just need a police office r to g o g et my stuff. Dispatch radioe d Ver

milion Police Depa

rtment Offic ers Bolton and Gra ssnig to the sce n e fo r a “fa ther da ug hter domestic. The daug hter is 18, she’s loc ked out of the house at this tim e.

2No. 11-3123

Hays v . Bolton, et al. Hea ther waited in the car with Br ie until the office rs arr ived. When they did, she exit ed the

car and told them that “I had all my stuff in a y ellow bin and I had my shoes and ever y thing and like I was wea ring slippers. So then like he like pulled me downstairs and they fell off and like my bin is not there any

more, nothi ng is there

. She was upset and cry ing. Audio from the officer s’ patrol

car s rec ords Hea

ther a ffirming to the office rs that she wa s forc ibly remove d from the home: Offic er [Bolton]: How did y ou end up outside, did he g rab y ou - - Offic er [Gra ssnig]: He threw her out (ina

udible). Offic er [Bolton]: - - and y ou pulled y ou outside? Hea ther: Ye s. Id

. at 8. The office rs knocked loudly on the door, rang the doorbell, and telephone d Hay s to ha ve him come to t h e door. Whil e doing s o, the officers discussed the fact that Hea ther was a resident of the home she was try

ing to e nter: Offic er [Bolton]: I t’s her house , so, she lives here

. Offic er [Gra ssnig]: Yep. Offic er [Bolton]: (I naudible) br eaking and ente ring , brea king into her

own house. Offic er [Gra ssnig]: Nope. Hea ther: I

don’t want to bre ak any

thing. Offic er [Gra ssnig]: You live here

. Hea ther: I

honestly don’t want to ca

use trouble, I

just want my

stuff. Offic er [Grassnig]: Well, that’s what we’ re say ing, y ou live here , if y ou want to g o in and g et y our stuff. Hea ther: Can y ou stop bang ing? Id

. at 10-11. Offic er Bolton then left to chec k the doors and windows around the home. He repor ted back that “eve ry

thing is locked.” Id

. at 12. Offic ers Bolton and Gra ssnig wer e standing at the front door with Hea ther whe n it was discover ed that the g ara g e door ha d since be en opene d. Hea ther proce eded into the house and the two office rs followed. Whil e the office rs sear ched the first floor for residents, Hea ther went upstairs to g ather additional belong ings from her bedroom. 3No. 11-3123

Hays v . Bolton, et al. Hay s then came out from his upstair s bedroom and objected to the office rs’ prese nce in his home. He asked whether they had broke n in, to which Offic er G rassnig responde d that they had not, and Hea ther stated that the g ara g e door wa s o p en. Offic ers Bolton and Gra ssnig asked Hay s to come down the stairs and speak with them. Hay s ag ain questioned the office rs’ authority to be in his home and he did not immediately proce ed down the ste ps toward them. The office rs then ar rested H ay s for domestic violenc e Hay s proce eded to trial and was found not g uilty

. He then broug ht suit in the fede ral District Court for the Norther

n Distr i ct o f Oh i o ag ainst the City of Ver milli on, the Ver

milli on Police Depa rtment , Ve rm illion Police Depa rtment Chief Robert Kish, and Ver milli on Police Offic ers Bolton and Gra ssnig ( c o ll e c ti v e ly , D e f e n d a n ts ) a ll e g in g w a

r r antless entry and arr est without probable

cause in violation of the Four th Amendment, municipal liability , false arr est, malicious prosec ution, and various Ohio state law violations. Aft er extensive discovery , the district court g rante d Def endants’ motion for summary judgme nt on Hay s’ claims ag ainst Offic ers Bolton and Gra ssnig, finding that they wer e entitl ed to qualified i m m u n i t y . The dist rict court also g rante d Def endants’ motion for summary judgme nt on Hay s’ rema ining claims, all of which wer e predic ated upon Offic ers B olton and Gra ssnig’ s alleg ed wr ong doing. Hay s appea ls. 1

The district court g rante d Def endants’ motion for summary judgme nt on Hay s’ state constitutional 1 claims on the additional basis that Hay s had neither opposed Def endants’ motion nor provided any evidenc e to support a state constitutional viol ation. 4No. 11-3123

Hays v . Bolton, et al. II. Analysi s A. Standard of

Review We reviewthe district c ourt’s g rant of summar y judgme nt de novo

. Knott v. Sulli van , 418 F.3d 561, 567 (6th Cir. 2005). I n doing so, we view evidenc e in the rec ord and make all rea sonable infere nces in favor of the nonmoving party

. Combs v. Int’l Ins. Co. , 354 F.3d 568, 576-77 (6th Cir. 2004) (citing Adicke

s v. S.H. Kress & Co. , 398 U.S. 144, 157 (1970))

. “Rule 56(c) mand at es the entry of summary judgme nt, afte r adequate time for discovery and upon motion, ag ainst a party who fails to make a showing sufficie nt to establish the ex istence of an element essential to that party ’s

case , and on which that party will bear the burden of

proof a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The centr al issue is “whe ther the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a jury or whether it is so one-sided that one party must pre vail as a matter of law.” Anderson v. Liberty Lobby, I nc ., 477 U.S. 242, 251-52 (1986). B. Qu alif

ied Im m uni ty The sole claim prese nted on appea l is whether the district court err ed in g ranting Def endants’ motion fo r s ummary judgme nt on Hay s’ claims ag ainst Offic ers Bolton and Grassnig , finding the office rs entitled to the protec tion of qualified immunit y . The Supreme Court has held that the 2 doctrin e of “[q] ualified immunit y balanc es two important interests—the need to hold public officia ls

Hay s’ brief

mentions no other claims and w e thus consider them waived. See A hlers v. Sche bil , 2 188 F.3d 365, 374 (6th Cir. 1999) (cla ims not raised in the plain t i ff ’s appellate brief are waived) (interna l cit at i o n s omitted). Even if we wer e to addre ss them on their merits, howeve r, Hay s’ rema ining claims fail beca use they are predic ated on the assumption , rejected infra , that Offic ers Bolton and G rassnig ’s conduc t was unlawf ul. 5No. 11-3123

Hays v . Bolton, et al.

acc ountable when they exercise p o w e r ir r e s p o n s ib ly and the need to shield officia ls from hara ssment, distraction, and liability when they perf orm their duties rea sonably .” Pearson v. Callahan , 555 U.S. 223, 231 (2009). I f an office r’s err or is entitled to the protec t i o n o f q u al i fi ed immunit y , such protec tion “applies reg ardle ss of wh ether the g overnme nt officia l’s err or is a mistake of law, a mistake of fac t, or a mistake based on mix ed question s o f l aw an d fact.” Id

. (interna l quotation marks and c itations omi tted). Whether office rs are entitled to qualified immunit y for their actions is a question of law we revie w de novo . Phillips v. Roane Cnty ., Tenn. , 534 F.3d 531, 538 (6th Cir. 2008)

. Gene rally , the first step in identify ing its applicability is to deter mine whether

“in the lig ht most favorable to the party asser

ting the injury , . . . the fac ts alleg ed show the [officers’ ] conduct violated a constitutional rig ht[ .]” Parsons v. City of Pontiac , 533 F.3d 492, 500 (6th Cir. 2008) (quoting Saucier v. Katz , 533 U.S. 194, 201 (2001) rece ded from by Pearson v. Callahan , 555 U.S. 223 (2009))

. I f a constitutional rig ht has been violated, we must then ask “whe ther the rig ht was clea rly established.” Id

. (citing Saucier , 533 U.S. at 201). “The rele vant, dispositi ve inquiry in deter mining whether a rig ht is clea rly established is whether it would be clea r to a rea sonable office r that his conduct was unlawful in the situation he confr onted.” Saucier , 533 U.S. at 202. I f nece ssary , we may clar ify the analy sis by also asking “whe ther the plaintiff offe red sufficie nt evidenc e to indica te that what the officia l alleg edly did was objectively unrea sonable in light of the clea rly established constitutional rig hts.” Parsons , 533 F.3d at 500 (citing In re Carter v. C i t y of Detroit , 408 F.3d 305, 311 n.2 (6th Cir. 2005). I n Pearson , the Supreme Court rec onsidered the two-step proce ss in Saucier and held that “while the sequenc e set forth there is often appropr iate, it sho uld no longe r be reg arde d as mandatory .” 6No. 11-3123

Hays v . Bolton, et al. Pearson , 555 U.S. at 236 (af firming , howeve r, that the Saucier sequenc e may be pref err ed beca

use “it often may be difficult to decide whether a rig ht is clea rly established without deciding prec isely what the e x isting constitutional right happe ns to be.”) ( quoting Lyons v. Xenia , 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J ., concur ring )). Post- Pearson , we have held that althoug h our Court “still [ i s ] require d to addre ss the s ame questions in conducting our qualified immunit y analy sis,

. . . we

are fre e to consider those questions in whateve r order is appropr iate in light of the issues befor e us.” Moldowan v. City of W

arren , 573 F.3d 309, 333 ( 6th Cir. 2009). Hay s claims the district cou rt er red in finding Offic ers Bolton and Gra ssnig entitled to qualified immunit y beca

use they violated his Four th Amendment rig ht ag ainst unrea sonable sear ch and seizure when they conducte d a non-conse nsual sear ch of his home and arres t ed h i m without probable cause . As explained mor e fully below, we find that the office rs’ conduct wa s rea sonable and af firm the district cour

t’s dismiss al of Ha

y s’ Four th Amendment claims. 1. Of fi cer s Bolton and Gr assnig enter ed the Hays residence wi th Heather ’s apparent consent Gene rally , the Four

th Amendment protec ts individuals from war rantless sear ches of their homes and possessions. Illinois v. Rodriguez , 497 U.S. 177, 181 (1990). The Four th Amendment’s protec tion does not apply

. I f consent is g iven by one who has actua l or appar ent authority over the item or place to be sear ched. United States v. Caldwell , 518 F.3d 426, 429 (6th Cir. 2008). “When

o n e p erson consents to a sear ch of proper ty owned by another , the consent is valid if ‘the fac ts available to the office r at the moment

. . . war rant a man of rea sonable caution in the belief that the

7No. 11-3123

Hays v . Bolton, et al. consenting party had authority over the premises.’” United States v. Jenk ins , 92 F.3d 430, 436 (6th Cir. 1996) (quoting Rodriguez , 497 U.S. at 188). We f ind tha t there is ample evidenc e to suppor t the district c ourt’s conclusion that Hea ther had appar ent authority to consent to a war rantless entry into the Hay s residenc e. At approximately 11:35 p.m. on a below- fre ezing nig ht in the middle of the wint er, Heathe r called 911 repr esenting that Hay s had “thr[own] [ her] out w ithout any shoes on.” She c alled with the express re quest that

a police office r be dispatched to the scene to “g o g et [her] stuff.” Id

. Wh en Of fi ce rs Bolton and Gra ssnig arr ived, Hea

ther maintained that her fathe r h ad “pulled [her] downstairs” and that she ended up outside be cause Hay s had “g rab[bed]” her, “ threw,” and “pulled” her out. Thoug h g iven multipl e opportunities to do so, Hea ther never indicated that she had ostensibly “moved out” of the Hay s residenc e. Hea ther stood by without objection while Offic ers Bolton and Gra ssnig, who had been sent to the Hay s residenc e pursuant to Hea ther’s reque st, attempted to g ain entry into the home. She did
not corr ect the office rs when they twice- men t i o n ed that she lived at the residenc e. Although she asked the office rs to “stop bang ing” on the door, she did not tell them she no longe r wa nted to g et into the house. Id

. at 11. I ndeed, when the g ara g e door was discovere d to be partially open, Hea ther led them inside. As the district court rec og nized, Hea ther had no problem with the office rs following her in (in fac t, she testified she believed they would do so) and only becam e “u p s et ” wh en “they started a rre sting [her] father .” We have held that “mag ic words” are not nece ssary for eff ective consent; rathe r, the totality of the circ umstances, including a party ’s non-ver bal conduct, should be considere d in de termining 8No. 11-3123

Hays v . Bolton, et al. wh et h er consent exis ts. See United States v. Carter , 378 F.3d 584, 588 (6th Cir. 2004) (finding
consent “conside ring th[ e] testimony and all [of] the circ umstances ” w h e r e an ordinary citizen would have rec og nized that assent had been g iven). Her e, the totality of the circ umstances sug g ested that Hea ther was a fo rc i bly remove d co-te nant wit h authority to consent to a warra ntless sear ch of the residenc e. Even assuming Hea ther was no longe r a resident and l ac k ed t he actua l authority to consent to a sear ch, we conclude that she display ed appar ent authority sufficie nt to justify Offic ers Bolton and G rassnig ’s conduc t under the F ourth Amendment. 3

a. Hays’ object ion to the off icer s’ presence did not wi thdraw Heather ’s consent und er clear ly established l aw Hay s arg ues that even assuming Hea ther had appar ent authority to g ive the office rs consent to enter the Hay s residenc e, his objection to their prese nce withdrew Hea ther’s consent and invalidated his subsequent arr est. His arg ument rests upon a seminal Supreme Court case

— Georgia Following Def

endants’ motion for summary judgme nt in this case , Hea ther submit t ed a sworn 3 aff idavit in which she claimed she did not consent to Offic ers Bolton and Gra ssnig enter ing the Hay s residenc e and she did not tell the office rs that her fathe r had drag g ed her down the steps. The district court struck the aff

idavit beca

use it materia lly contra dicted Hea ther’s deposition testimony , rely ing on Reid v. Sears, Roebuc k and Co ., 790 F.2d 453, 460 (6th Cir. 1986) (holding that a par ty cannot cre ate a g enuine issue of materia l fac t by filing a post-motion for summary judgme nt a ffidavit that materia lly contra dicts his or her prior testi mony ). Hay s arg ues t hat Reid ’s hol ding is inapplicable beca use it reg arde d the aff

idavit of a party himself and not a mere testify ing witness. Whether Reid is in fac t so limit ing is a matter we need not decide , for eve n i f we we re to consider Hea ther’s statement, it does not cre ate a g enuine issue of materia l fac t to overc ome summary judgme nt. Whil e Hea ther claims she g ave no c onsent to enter the Hay s residenc e, for example, she does not c ontest her statements to the 911 dispatcher or her non-ver bal conduct that formed the basis for the district court’s ruling that she had provided appar ent consent. M o re o v er , even if Hea ther never told the off ic e r s h er fathe r dragged her outside—as she claims in the aff idavit—the office rs still had probable cause to arr est Hay s based, inter alia , on the fre ezing tempera tures outside and Hea ther’s insistence that she had be en thrown out of the house. 9No. 11-3123

Hays v . Bolton, et al.

v. Randolph , 547 U.S. 103 (2006)—a nd an unpublished decision by thi s C o u rt

– – Un ited States v. Tatman , 397 F. App’ x 152 (6th Cir. 2010)—interpre ting it. Neit h er Randolf nor Tatman espouses a principle that would strip Offic ers Bolton and Gra ssnig from g overnme ntal immunit y in this case . I n Randolf , the Supreme Court he ld tha t a cotenant who is phy sically prese nt and objects to a police office r’s entry preva ils over a co-te nant who g rants permission for a sear ch. Randolph , 547 U.S. at 106. The decision specific ally cabins an objecting co-te nant’s power , howeve r, g iving him e ffe ct only when he voiced his objection as part of the initial discussion of consent to enter the premises. Randolph , 547 U.S. at 1 2 1 (“ [ When] a potential defe ndant with self-inter est in objecting is in fact at the door and objec ts, the co-tena nt’s permission does not suffice for a rea sonable sear ch, wher eas the potential objector, near by but not invited to take p art in the threshold colloquy , loses out.”). Thus, Randolph limit s, clea rly and succinc tly , an objecting co-tena nt’s ability to vitiate the previously g iven consent o f h i s co-tenant to situations wher e the objecting co-te nant voices his complaint befor e the sear ch or entry has taken place

. Id

. The Supreme Court itself noted that so long as no foul play was involved in “re mov[ ing] the potentially objecting tenant from the entra nce for the sake of avoiding a possible objection,” there is prac tical value to its brig ht-line distinction “re cog nizi ng the co-te nant’s permission when there is no fellow occupa

nt on hand” befor e the sear ch commence s. Id

. The Court explained that common

s en s e j u stified its formalism, noting that “it would needle ssly limit the capa city of the police to

re s p o n d t o o stensibly leg itimate opportunities in the field if we wer e to hold that rea sonablene s s require d the pol ice to take affirma tive steps to find a p o tentially objecting co-te nant before acting

on the permissi o n t hey had alre ady rec eived.” Id

. at 122. A simple application of this principle 10No. 11-3123

Hays v . Bolton, et al. shows that Officer s Bolton and Gra ssnig wer e leg ally entitled to sear ch the Hay s residenc e when Hea th er, the only tenant with actua l or appar ent authority over the premises to participa te in the threshold colloquy

reg arding entra

nce the rein, g rante d them permission to do so. Four y ear s afte r Randolph and two y ear s after the events in this case , our Court decide d. I n that case , Tatman’s wife had appar ent authorit y to allow office rs to sear ch her husband’s home within which she no longe r lived. Tatman , 397 F. App’x at 156. Tatman was standing upstairs when the office rs crosse d the threshold to his home and he immediately objected to the sheriff ’s prese nce befor e any sear ch was conduct ed

. Id

. The sheriff nonetheless conducte d a sear ch of Tatman’s residenc e and a

rre sted him for dom estic vi olence

. Id

. Considering the see mingly arbitra ry nature

o f R andolph ’s holding, we conclude d that the Supreme Court “did not intend [i ts] ‘at the d o o r’ lang uag e to be talismanic.” Id

. at 161. We thus held that, beca use Tatman was a phy sically prese nt co-te nant who objected to a sear ch the office r had not y et commence d, his objection invalidated any consent Tatman’s wife had g iven. Id

. at 162-63. “Tha t he voiced this objection from the top, rathe r than the foot, of his stairc ase,” we r easone d, “does not c hang e this fac t.” Id . at 162. Rely ing on Tatman , Hay s contends t h at h i s o bjection to Offic ers Bolton and Gra ssnig’ s prese nce in his home withdraws any consent Hea ther had to a llow the police entr y . We rejec t this arg ument and find Tatman unpersua sive for at least two rea sons. To beg in, Tatman was not decide d until two y ear s after the events in this case . See Tatma n , s u p r a . An unpublished case not y et in exis tence cannot possibly supply the “cle arly established” constitutional rig ht an office r must violate
to disqualify himself of g overnme ntal immunit y . See Parsons , 533 F.3d at 500 (citing Saucier , 533 U.S. at 201) (holding that if an office r’s conduct is found to have violated a constitutional rig ht, we 11No. 11-3123

Hays v . Bolton, et al. must ask “whe ther the rig ht was cl ea rl y established.”)

. Requiring police office rs to exercise clairvoy ance , rathe r than a rea sonable understanding of exis ti n g l aw , i s a dang erous and unwise prec edent we decline to se t. Fur thermore , even if Offic ers Bolton and Gra ssnig could somehow be require d to understand Randolph as Tatman had not y et interpre ted it, Tatman is fac tually distinguishable from the instant

case and its holding inapposite. Although Tatman found that a co-te nant could eff ectively withdraw
consent to sear ch from the top of a stairca se beca use Randolph did not require him to be literally “at the door,” Tatman , 397 F. App’ x at 161-63, Tatman objected befor e the sear ch beg an. Id

. at 156. Her e, Hay s’ obj ection came after police had enter ed his home. Thus, the s ituation here is one we did not addre ss in Tatman , i.e., whether a co-te nant can withdraw his fellow tenant’s valid consent afte r a leg itimate se arc h has alre ady beg un. I n Randolph , which was clea rly established law w hen these events took place , the Supreme Court an s we red the question with a resounding “no.” Randolph , 547 U.S. at 121. Whil e Tatman clar if i ed R andolph on other points, nothing in that decision undermines this clea rly established principle. I n sum, althoug h Hay s cites Randolph in support of his arg ument in this case , Randolph ’s holding makes clea r that Hay s’ purported objection

came too late to withdraw or otherwise invalidate his daug hter’s consent for Offic er s Bo lton and Gra ssnig to enter the home. For t h es e re as o ns, we aff irm the district court’s judgme nt that the office rs’ ong oing acc eptanc e of Hea ther’s consent to e nter the Hay s residenc e wa s rea sonable, did
not violate Hay s’ clea

rly established co n s t i t u t i o nal rig hts, and is protec ted under the doctrine of qualified immunity

.

12No. 11-3123

Hays v . Bolton, et al.

2. Of fi cer s Bolton an d Grassnig had p robable cause to arr est Hays for dom estic violence Finally , Hay s arg ues that even if police could rea sonably have sear ched his home, they lacke d probable cause to a

rre st him for domestic violence. We do not a g ree . “[A] war rantless arr est by a law office r is rea sonable under the Four th Amendment wher e there is probable cause to believe that

a criminal offe nse has been or is being committed.” Dev enpec k v. Alford , 543 U.S. 146, 152 (2004). Whether proba

ble ca use is pr esent “depe nds upon the rea sonable conclusion to be dra wn from the fac ts known to the arr esting office r at the time of the arr est.” Id

. We have held that once an office r has sufficie nt probable cause , he has no duty to conduct a further investiga tion. Klein v. Long , 275 F.3d 544, 551 (6th Cir. 2001). Moreove r, in the domestic violence context, police office rs need only have a belief in the probability t h at an o ff en s e was committed, even if they lack proof of ever y element of

the cr ime. Thacker v . City of Col umbus , 328 F.3d 244, 256 ( 6th Cir. 2003). Under Ohio law, domestic viol en ce i s co mmitt ed when a person “knowing ly cause [s] or attempt[s] to cause phy sical harm to a family or household member.” Ohio Rev. Co de Ann. § 2919.25(A) (West 2010). Where a police office r has “re asonable g rounds to believe the offe nse of domestic violence

. . . has been committed a nd rea sonable cause to be lieve that a particula r person is g uilty of committing the offe nse, it is the pref err ed course of action in [Ohio] that the office r arr est and deta in . . . .” Ohio Rev. Code Ann. § 2935.03( B) (3)( b) (West 2011). Apply ing the fac ts of this case to the do m es t i c violence standard under Ohio law, it was

rea sonable for Offic ers Bolton and Grassnig t o believe that Hay s intended to cause phy sical harm
to his daug hter. Hea ther called 9 1 1 fo r o ff i ce r assistance afte r her fathe r “thre w [her] out of the

13No. 11-3123

Hays v . Bolton, et al. house,” wit h o u t any shoes at near ly midnight in the middle of the winter with sub-fre ezing tempera tures and snow on the g round. When the office rs ar rived at the scene , Hea ther ag ree d that her fathe r had “g rab[bed],” “thre w,” and “pulled” her outside and that her shoes had come off as he did so. She was visibly upset. Once the office rs wer e inside, Hay s ref used to come down the stairs or explain his conduct. Whil e Hay s makes much of the fac t that Hea ther neither compl ai n ed of nor exhibi ted any injuries, this is hardly dispositi ve. Under Ohio law, the intent to cau s e a fa m i l y or household member phy sical harm is sufficie nt to constitute domestic viole n ce . S ee Ohio Rev. Code Ann. § 2919.25(A) (West 2010). Whether or not such harm actua lly ca m e t o pass, either when Hay s forc ibly threw Hea

ther out of the house or when he locked her outside bare foot, is immaterial. Hay s also arg ues that the office rs must not have believed that Hay s was an ag g ressor beca use they allowed Hea ther to g ather her things from a room near by while they stay ed downstairs. Wit hout comment

on the wisdom of this decision, this too fails to demonstrate that Hay s lacke d the intent to harm his daug hter. I ndeed, Offic er Bolton testified that he and Offic er Gra ssnig “still had ey es on [Heather]” when she went upstairs to g et her things. I n sum, Hea ther’s repr esenta tions to the 911 dispatcher and to Offic ers Bolton and Gra ssnig, the extremely cold wea

ther, the fac t that Hea

ther had been thrown outside with no shoes, and Hay s’ ref usal to explain his conduct supports the o ff i cers’ decision to arr est him for domestic violence. Under these straig htf

o r w a r d circ umstances, the office rs’ conduct did not violate Hay s’ constitutional rig hts, much less clea

rly establish ed p rotec tions. Acc ording ly , we aff irm the district court’s

14No. 11-3123

Hays v . Bolton, et al. judgme nt that Offic ers Bolton and Gra ssnig had probable cause to arr est Hay s and that their conduct is protected by

the doctrine of qualified immunity

. III. Conclusi on For the rea sons set forth here in, we AF F IRM the district court’s g rant of Def endants’ motion for summary

judgme nt.

15No. 11-3123

Hays v . Bolton, et al. KA REN NELSO N MOORE, Circuit Judge, concurring in the judgme nt. I ag ree with the majority that Hea ther Hay s had appar ent authority to consent to Offic ers Gra ssnig’ s and Bolton’s entry into the Hay s household. I am unconvince d that the office rs did not there afte r violate Edwar d Hay s’s Four

th Amendment rig hts by ref using to leave the house afte r he objected to their prese nce, howeve r. See Georgia v. Randolph , 547 U.S. 103, 122–23 (2006). Be cause Randolph is unclea r as to when a tenant must object in order to overr ide a co-te nant’s consent, and beca use our subsequent clar ification of the issue in United States v. Tatman , 397 F. App’x 152, 16 0

– 6 2 (6 t h Cir. 2010), postdates the eve nts at the Hay s household that led to this litigation, I can concur in the majority ’s holding that Gra ssnig and Bolton are entitled to qualified immunit y on the g rounds that the contours of the rig ht identified in Randolph were n ot clea rly established at the time. The majority ’s discussion of the scope of Randolph is thus unnece ssary . Be cause I also believe that it is incorre ct, I must briefly

respond. T o the extent that the majority rea ds Randolph as holding that Hay s must have obj ec t ed befor e the office rs enter ed his home in order to revoke Hea ther’s previously g iven consent, I disag ree for the rea sons expl ained in Tatman

. See 397 F. App’ x at 160–63; see also Gates v . Tex. Dep’ t of Protective & Regulatory Servs. , 537 F.3d 404, 426 (5th Cir. 2008) (following Randolph , “[i] t is only

a small step to conclude that a phy sically prese nt co-oc cupant may revoke or withdraw the consent g iven by another occupa

nt” afte r police have enter ed). Assuming that the majority ’s descr iption of Randolph as holding that a co-te nant’s objection is ineffe ctive “af ter a leg itimate sear ch has alre ady beg un” m ea n s something other t han “after the pol ice have entered,” I still question the s oundness

16No. 11-3123

Hays v . Bolton, et al. of this standard. I t is unclea r at what point afte r the police enter a residenc e that a sear ch beg ins for the purposes of

this view of Randolph

. Read in context, the better understanding of Randolph ’s “fine line” rule, 547 U.S. at 121, is that a tena

nt c annot revoke a co- tenant’s pr eviously g iven conse nt for the police to enter or sear ch

a residenc e once the police have alre ady discovere d contra band or once probable cause for an arr est has been established; simil arly , an absent tenant cannot later arg ue that a sear ch within the residenc e to which a co-te nant consente d was unlaw fu l if the g overnme nt seeks to use evidenc e discovere d during that sear ch. The Court explained that the p u rp o s e of this rule was to alig n the holding in Randolph with Illinois v. Rodriguez , 497 U.S. 177 (1990), and United States v. Matlock , 415 U.S. 164 (1974), which held that evidenc e seized in a war rantless sear ch of the defe ndant’s residenc e was admissible at trial when a third party with actua l or appar ent common authority had consente d to the

sear ch, as well as to clar ify that office rs are not requi red “to take aff irmative steps to find a potentially objecting co-te nant befor e acting o n the permission they had alre ady rec eived.” R a n d o l p h , 5 4 7 U.S. at 121–22. Neither purpose is undermined by requiring office rs to heed th e objection of a co-te nant who arr ives on the scene once the police have alre ady enter ed the house but prior to the seizure of

evidenc e. Wit h these observa tions, I concur in the judgme nt aff irming the dis t ri ct court’s g rant of summary judgme nt on qualified-immunity g rounds.

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