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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

Solomon Ellison, 

 Plaintiff, 

 v. 

Trooper Jeffrey Martin, 

 Defendant. 

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Case No. 1:17-cv-689 

Judge Michael R. Barrett 

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 

 This matter is before the Court on Defendant Trooper Jeffrey Martin’s Motion for 

Summary Judgment (Doc. 31). Plaintiff Solomon Ellison filed a Memorandum in Opposition 

(Doc. 37), to which Trooper Martin filed a Reply (Doc. 42). In this civil rights case arising from a 

lawful traffic stop, Ellison alleges Trooper Martin detained him longer than necessary and then 

arrested him without probable cause. For the reasons that follow, the Court disagrees and will 

GRANT the Motion for Summary Judgment. 

I. Background

A. Facts Underlying the Claims

 Just after 1:00 a.m. in the morning on July 10, 2016 in Mason, Ohio, Ellison was driving 

home from a movie with his fianceé, Sheena Davis. (Doc. 31-1, PageID 242.) Trooper Martin, 

an officer with the Ohio Highway Patrol, was driving in the area. When Trooper Martin turned 

on to Irwin Simpson Road, he saw the vehicle in front of him change lanes without signaling. 

(Video 1:04:09.) The vehicle next turned right onto Mason Montgomery Road without 

signaling. (Video 1:04:38.) The vehicle then weaved right over the white-striped line and 

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weaved left at least touching the yellow left lane line, before the driver finally signaled right and 

changed lanes. (Video 1:04:59, 1:05:05.) Trooper Martin pulled over the vehicle on Mason 

Montgomery Road for the traffic violations. (Video 1:05:21; Doc. 31-2, PageID 406–407.) The 

driver of the vehicle, Plaintiff Ellison, appropriately pulled to the side of the road and parked. 

 Ellison believed on the night of the incident that Trooper Martin initiated the traffic stop 

because he is African American. However, after watching the video of the traffic stop, he 

conceded that he turned right onto Mason Montgomery Road without using his turn signal. 

(Doc. 31-1, PageID 273.) He further conceded that Trooper Martin could not have known his 

race while he was driving and that the traffic stop was not racially motivated. (Id., PageID 273–

275, 304–305.) Nonetheless, Ellison’s concern on the night of the incident that the traffic stop 

was racially motivated permeated the encounter between Ellison and Trooper Martin. 

 At the beginning of the stop, Ellison rolled down his window, and Trooper Martin 

politely requested his driver’s license, proof of insurance, and registration. (Video 1:05:48.) 

Ellison immediately provided the documents, but his identification fell to the ground as he 

attempted to hand it to Trooper Martin. (Video 1:06:07.) Troop Martin later testified that he 

detected “a strong odor of an alcoholic beverage coming from the vehicle” which was a “sweet, 

fruity smell.” (Doc. 31-2, PageID 407, 464.) Ellison and Davis denied that there was any odor of 

alcohol on Ellison or in the car. (Doc. 35, PageID 1074; Doc. 31-3, PageID 685–687.) 

 When asked, Trooper Martin told Ellison that he stopped him for not using a turn signal 

and for marked lane violations. (Video 1:06:34.) Ellison expressed his belief—later proven to 

be incorrect—that Trooper Martin followed him when he left the movie theater. (Video 

1:06:43.) When Trooper Martin asked where he was headed, Ellison continued to discuss the 

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traffic violation. Ellison said “let’s get with it” and “may I have my ticket?” (Video 1:07:03.) 

Ellison repeated his request for the ticket when Trooper Martin next asked his how much he 

had to drink. (Video 1:07:09.) 

 At this point, Trooper Martin asked Ellison to step out of his vehicle. (Video 1:07:13.) 

Ellison responded that he did not want to step out of the vehicle and asked Trooper Martin call 

his supervisor. (Video 1:07:14.) Trooper Martin then opened the driver’s side vehicle door. 

(Video 1:07:16.) At some Trooper Martin grabbed his taser with his right hand after he opened 

the vehicle door. (Doc. 31-2, PageID 423.) His right arm was bent at a right angle and pointed 

towards Ellison as they continued to talk, but the video does not show where his hand or the 

taser is pointed. Ellison testified at his deposition that he could not recall whether the taser 

was pointed at him. (Doc. 35, PageID 1088–1089.) 

 Nonetheless, Ellison told Trooper Martin that he did not feel comfortable, he stated that 

he did not have a gun, and he requested multiple times that Trooper Martin call his supervisor. 

(Video 1:07:17.) Trooper Martin denied that he had to call his supervisor. (Video 1:07:24.) 

Ellison again denied that he had been drinking. (Video 1:07:27.) Trooper Martin and Ellison 

continued to go back and forth with Trooper Martin stating that he wanted Ellison to step out 

of the car and Ellison stating that he did not “feel safe or comfortable.” (Video 1:07:28.) Ellison 

told his fiancée, Sheena Davis, that she should call 911. (Video 1:07:33.) Trooper Martin stated 

that he was the one “in control right here,” but he agreed that Davis could call 911. (Video 

1:07:34.) While Ellison continued to request a supervisor and state that he did not feel 

comfortable, Trooper Martin told Ellison that he “could exit the vehicle” or Trooper Martin 

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“would pull [him] out of the vehicle.” (Video 1:07:42.)1 

 The two men then began to talk over each other at a faster pace for the next twentyfive seconds or so. (Video 1:07:46.) Trooper Martin ordered Ellison to exit the vehicle at least 

five times. Ellison did not comply, but instead he stated that he did not want to be shot or 

tased. Trooper Martin reached in to undo the seat belt buckle after Ellison verified that he did 

not have a gun. (Video 1:08:02; Doc. 31-2, PageID 430.) As Ellison then stepped out of the 

vehicle, Davis can be heard telling the 911 operator their location. (Video 1:08:07.) Trooper 

Martin patted down Ellison with his consent after Ellison again denied having a weapon. (Video 

1:08:26.) When Ellison suggested that Davis “get out of the car,” Trooper Martin instructed her 

to stay in the vehicle. (Video 1:08:48.) Ellison continued to ask Trooper Martin to call a 

supervisor and gestured with his hands as he spoke. (Video 1:09:07.) 

 Trooper Martin then asked Ellison to face him so he could “take a look at your eyes and 

make sure [he] could drive.” (Video 1:09:20.) Ellison responded with a raised voice in 

frustration: 

I haven’t been fucking drinking, man. I haven’t had one fucking drink. Call the 

supervisor. I asked you that three times. I asked you nicely. 

(Video 1:09:21.) Ellison gestured up and down with both arms, and then moved his left arm 

(from the elbow) up and down rapidly as he yelled, “I asked you that three times.” (Id.) Davis 

told Ellison to “calm down” at that time because he “sound[ed] agitated.” (Doc. 31-3, PageID 

618.) She was concerned for Ellison’s safety and did not “want the officer to do anything to 

1

 Ellison believed based on conversations he had had with officers from the Hamilton County Sheriff’s Office that a 

law enforcement officer had to call a supervisor if he requested it. (Doc. 31-1, PageID 284–285.) He requested the 

presence of supervisor, or other officers via the 911 call, because he wanted to deescalate the situation and 

reduce the threat he felt from Trooper Martin. (Id., PageID 294–296.) 

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him” because Ellison was agitated. (Id.) 

 Trooper Martin arrested Ellison and placed him in handcuffs after his outburst. (Video 

1:09:33.) Ellison did not resist the arrest, but he continued to verbally argue with Trooper 

Martin for more than one minute. (Video 1:09:34.) Trooper Martin placed Ellison, who was 

handcuffed, in his cruiser. (Video 1:11:20.) Trooper Martin testified that he arrested Ellison for 

disorderly conduct at that time because Ellison was displaying “signs of aggression[,]” “being 

loud[,]” and “impeding [his] investigation.” (Doc. 31-2, PageID 409– 411.) 

 Deputies from the Warren County Sheriff’s Office arrived at the scene in response to the 

911 call around the time that Trooper Martin placed Ellison in his cruiser. Trooper Martin then 

spoke to Davis in the vehicle. He asked her if she or Ellison had been drinking. (Video 1:13:46.) 

Davis stated that neither of them had anything to drink. (Video 1:13:54.) Trooper Martin told 

Davis that Ellison had been arrested for disorderly conduct and driving while intoxicated 

because, in part, Trooper Martin smelled alcohol in the vehicle and on Ellison’s breathe. (Video 

1:14:02.) He asked if Davis would take a portable breathalyzer test so he could be sure she was 

safe to drive the vehicle. (Video 1:14:19.) The test results indicated that she had not had 

anything to drink. (Video 1:16:45.) Trooper Martin requested Ellison to take a portable 

breathalyzer test, he consented, and his test also confirmed that he had not been drinking 

alcohol. (Video 1:18:33, 1:19:30.) 

 Trooper Martin released Ellison without charging him after the negative tests and after 

he learned there was no room for Ellison at the Warren County jail. (Video 1:17:41, 1:24:06; 

Doc. 31-2, PageID 512.) When Trooper Martin asked why he had “made a big deal” about 

getting out of the vehicle, Ellison responded that he had a “intrinsic fear” of police based on 

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previously “being brutalized” by police officers. (Video 1:23:18.) 

 B. Procedural Posture

 Ellison filed this suit against Trooper Martin on October 13, 2017. (Doc. 1.) He asserted 

a claim for violation of his First and Fourth Amendment rights pursuant to 42 U.S.C. § 1983. 

(Id.) Trooper Martin filed a timely Answer. (Doc. 6.) Following discovery, Trooper Martin filed 

the pending Motion for Summary Judgment arguing that he is entitled to judgment as a matter 

of law on the basis of qualified immunity. The Motion is fully briefed and ready for 

adjudication. 

II. Summary Judgment Standard

 Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” The moving party has the burden of showing an 

absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 

317, 325 (1986). Once the moving party has met its burden of production, the nonmoving party 

cannot rest on his pleadings, but must present significant probative evidence in support of his 

complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248–249 (1986). 

 In reviewing a summary judgment motion, courts are required to view the facts and 

draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. 

Harris, 550 U.S. 372, 378 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

In the qualified immunity context, “‘this usually means adopting ... the plaintiff’s version of the 

facts,’ unless the plaintiff’s version is ‘blatantly contradicted by the record, so that no 

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reasonable jury could believe it.’” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 565 (6th Cir. 

2013) (quoting Scott, 550 U.S. at 378, 380). 

III. Analysis

A. Section 1983 and Qualified Immunity Standards 

 Section 1983 creates no substantive rights, but merely provides remedies for 

deprivations of rights established elsewhere. Suttle v. Oklahoma City, 471 U.S. 808, 816 (1985). 

“Section 1983 has two basic requirements: (1) state action that (2) deprived an individual of 

federal statutory or constitutional rights.” Flint v. Ky. Dep’t of Corrs., 270 F.3d 340, 351 (6th Cir. 

2001). In this case, Ellison alleges a violation of his First and Fourth Amendment rights. The 

First Amendment protects “freedom of speech.” U.S. Const. amend. I. The Fourth Amendment 

protects people from “unreasonable searches and seizures.” U.S. Const. amend. IV. 

 Trooper Martin asserts the defense of qualified immunity. Qualified immunity shields 

“government officials performing discretionary functions . . . from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

The Sixth Circuit has explained: 

To determine whether a government official is entitled to qualified immunity, we 

consider the two-part test described in Saucier v. Katz, which asks whether “a 

constitutional right would have been violated on the facts alleged” and, if so, 

whether the right was “clearly established.” 533 U.S. 194, 200–01, 121 S.Ct. 

2151, 150 L.Ed.2d 272 (2001). We are free to address the second question first, 

analyzing whether the constitutional right that purportedly prohibited a 

defendant’s conduct was clearly established, without addressing whether there 

was a constitutional violation at all. Pearson v. Callahan, 555 U.S. 223, 236, 129 

S.Ct. 808, 172 L.Ed.2d 565 (2009). 

Occupy Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014) (footnote omitted). 

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 “Qualified immunity is applicable unless the official’s conduct violated a clearly 

established constitutional right.” Pearson, 555 U.S. at 232. “[A] defendant cannot be said to 

have violated a clearly established right unless the right’s contours were sufficiently definite 

that any reasonable official in the defendant’s shoes would have understood that he was 

violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–779 (2014); see also Durham v. Nu’Man, 97 

F.3d 862, 866 (6th Cir. 1996) (“A right is not considered clearly established unless it has been 

authoritatively decided by the United States Supreme Court, the Court of Appeals, or the 

highest court of the state in which the alleged constitutional violation occurred.”). The plaintiff 

bears the burden of proving both elements of the Saucier test. Although qualified immunity is 

an affirmative defense that must be raised by a defendant, once an official raises the defense 

“the burden is on the plaintiff to demonstrate that the official [is] not entitled to qualified 

immunity.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). “[W]here the legal 

question of qualified immunity turns upon which version of the facts one accepts, the jury, not 

the judge, must determine liability.” Henry v. City of Flint, Mich., 814 F. App’x 973, 980 (6th Cir. 

2020) (citation omitted). 

B. Fourth Amendment Claims 

 1. Traffic Stop Detention and the Field Sobriety Test

 Ellison makes the preliminary argument that Trooper Martin did not have a reasonable 

suspicion to detain him longer than was necessary to issue the citation for the traffic 

infractions. The Fourth Amendment prohibits traffic stops without probable cause that a traffic 

violation occurred, and it prohibits the continuation of a traffic stop to conduct a field sobriety 

test without reasonable suspicion that the driver was impaired. Throckmorton, 681 F.3d at 860. 

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Ellison concedes that the traffic stop was justified because he turned onto Mason Montgomery 

Road at a traffic light without signaling. Ohio Revised Code § 4511.39 requires that a driver 

signal before changing lanes or making a turn. Ellison disputes, however, the length of the 

traffic stop and whether Trooper Martin had reasonable suspicion to conclude that he was 

driving while impaired. 

 As part of the initial traffic stop, Trooper Martin had authority to “check[] the driver’s 

license, determin[e] whether there [were] outstanding warrants against the driver, and 

inspect[] the automobile’s registration and proof of insurance.” Rodriguez v. U.S., 575 U.S. 348, 

355 (2015). “These checks serve the same objective as enforcement of the traffic code: 

ensuring that vehicles on the road are operated safely and responsibly.” Id. Additionally, he 

was lawfully permitted to ask “traffic-related questions” and questions about Ellison’s “identity, 

business and travel plans.” United States v. Potts, No. 97-6000, 1999 WL 96756, at *4 (6th Cir. 

Feb. 2, 1999); see also United States v. Ellis, 497 F.3d 606, 613–614 (6th 2007) (“Trooper Topp 

was justified in asking the occupants general questions of who, what, where, and why regarding 

their 3:23 a.m. travel.”) Finally, Trooper Martin had the right to “order the driver to get out of 

the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches 

and seizures.” Arizona v. Johnson, 555 U.S. 323, 331 (2009) (quoting Pennslyvania v. Mimms, 

434 U.S. 106, 111, n. 6 (1977)).2

 An officer does not need separate justification to remove the 

2

 Ellison argues that Trooper Martin ordered him out of the car, not as part and parcel of the traffic stop, but in 

order to effectuate the field sobriety test without reasonable suspicion. This argument fails legally. Supreme 

Court caselaw “foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the 

actual motivations of the individual officers involved.” Whren v. United States, 517 U.S. 806, 813 (1996). Trooper 

Martin’s subjective intentions are irrelevant to the Fourth Amendment analysis. See, e.g., Scheffler v. Lee, 752 F. 

App’x 239, 244 (6th Cir. 2018) (stating that it did not matter if an officer subjectively believed he had probable 

cause); United States v. Parks, 414 F.Supp.3d 1044, 1049 (N.D. Ohio 2019) (stating that the subjective intention of 

the officer completing the pat-down of a driver is irrelevant). 

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driver from the vehicle. United States v. Pacheco, 841 F.3d 384, 390 (6th Cir. 2016). 

 Although Trooper Martin had the authority to order Ellison out of his vehicle as part of 

the traffic stop, Trooper Martin could not continue the detention of Ellison to conduct a field 

sobriety test without reasonable suspicion that he was driving under the influence of alcohol. 

In fact, Trooper Martin acknowledged at his deposition that he did not have to give Ellison a 

field sobriety test in order to issue a ticket to Ellison for the traffic violations. (Doc. 31-2, 

PageID 506.) The Sixth Circuit has explained the reasonable suspicion standard as follows: 

Although less demanding than the probable-cause standard, the reasonablesuspicion standard still requires more than a mere hunch. It requires specific 

and articulable facts, which, taken together with rational inferences from those 

facts, reasonably warrant the continued detention of a motorist after a traffic 

stop. In conducting a reasonable-suspicion analysis, reviewing courts must look 

at the totality of the circumstances of each case to see whether the detaining 

officer has a particularized and objective basis for suspecting legal wrongdoing, 

while bearing in mind that officers are permitted to draw on their own 

experience and specialized training to make inferences from and deductions 

about the cumulative information available to them. This totality-of-thecircumstances inquiry requires courts to determine whether the individual 

factors, taken as a whole, give rise to reasonable suspicion, even if each 

individual factor is entirely consistent with innocent behavior when examined 

separately. 

Green, 681 F.3d at 860–861 (cleaned up). Therefore, the Court must examine whether there 

were specific, objective facts giving rise to reasonable suspicion. 

 Ellison points out that he pulled over upon seeing the cruiser lights and immediately 

provided the requested identification documents. He directly answered Trooper Martin’s initial 

questions. He did not dispute issuance of a traffic violation ticket for not signaling before he 

turned. He asserts that the video demonstrates that he understood Trooper Martin’s questions 

and did not slur his speech in responding to those questions. He also cooperated and followed 

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directions after he exited the vehicle by allowing Trooper Martin to pat him down.3 

 On the other hand, Trooper Martin points to factors that support a finding of reasonable 

suspicion including the time and day of the stop, the location of the stop, erratic driving, the 

odor of alcohol, Ellison’s demeanor and coordination. The traffic stop took place around 1:00 

a.m. on the weekend in a commercial area. Ellison admits that he failed to signal a turn, and 

the video shows that he made other marked lane violations, all in the span of about one 

minute. Trooper Martin testified that he smelled the odor of alcohol, and consistent with that, 

he asked Ellison how much he had to drink as part of his opening set of questions. Trooper 

Martin testified that Ellison dropped his identification as he was handing it to him to review. 

Finally, Ellison refused to directly answer some questions posed to him, was argumentative and 

incorrect about his purported right to have a supervisor at the scene, and refused multiple 

requests to exit the vehicle. 

 On summary judgment, the Court must resolve all factual disputes in favor of the nonmoving part, Ellison, so long as the dispute is not conclusively resolved by the video. The video 

does not show if Ellison or Trooper Martin is responsible for allowing Ellison’s identification to 

fall to the ground. The video also is not probative as to whether there was an odor of alcohol 

3

 Ellison also relies on the conclusion of his expert, Michael Lyman, Ph.D., who opined that the “common 

violation” of failure to use a turn signal did not standing alone provide suspicion that the driver was impaired. 

(Doc. 36, PageID 1141.) However, Lyman’s opinion on whether Trooper Martin had reasonable suspicion is not 

admissible. It is the role of the Court to define a legal term such as reasonable suspicion and the role of the 

factfinder to determine if the facts satisfy the definition. See Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 

1994) (“It is the responsibility of the court, not testifying witnesses, to define legal terms.); Morgan v. Westhoff, 

No. 05-73583, 2006 WL 2474010, at *2 (E.D. Mich. Aug. 18, 2006) (not allowing experts to testify as to whether an 

officer had probable cause). In at least two prior cases, Dr. Lyman was precluded from testifying about the 

reasonableness of an officer’s conduct because that determination is the ultimate legal determination for a jury. 

See Gough v. Louisville Jefferson Cnty. Metro Gov’t, No. 3:12-cv-849, 2016 WL 4535663, at *2 (W.D. Ky. Aug. 30, 

2016); Alvarado v. Oakland Cnty., 809 F. Supp. 2d 680, 689–691 (E.D. Mich. 2011). 

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emanating from Ellison or his vehicle. On this latter issue, Ellison and Davis both deny drinking 

or that the there was an odor of alcohol in the vehicle. The Sixth Circuit has instructed that “an 

officer’s unsupported and contested observations regarding a driver’s signs of impairment are 

called into question when a subsequent blood or urine test shows that the driver was not 

actually impaired.” Green, 681 F.3d at 863. Here, Trooper Martin’s credibility in testifying that 

he smelled alcohol is called into question in light of the undisputed fact that Ellison and Davis 

both tested 0.00 on the breathalyzer test. 

 Nonetheless, based on the remaining undisputed facts, it was reasonable for Trooper 

Martin to conclude that he had at least a reasonable suspicion that Ellison was impaired. Ohio 

court have identified numerous factors an officer can consider in making the decision to 

conduct a field sobriety test including the time and day of the stop, the location of the stop, 

erratic driving, bloodshot eyes, the odor of alcohol, the suspect’s demeanor, and any admission 

of drinking. Ohio v. Evans, 127 Ohio App. 3d 56, 711 N.E.2d 761, 766 n.2 (1998); see also

Bradley v. Reno, No. 4:12CV00890, 2014 WL 4955948, at *5 (N.D. Ohio Sept. 30, 2014) (quoting 

Evans), aff'd, 632 F. App'x 807 (6th Cir. 2015). Several of these factors were present. Trooper 

Martin witnessed Ellison commit several traffic violations in just over one minute during the 

overnight hours in an area with multiple alcohol-serving restaurants. Ellison did not answer 

standard questions such as where he was headed and whether he had been drinking. He stated 

that Trooper Martin should “get with it” and asked for his ticket. He was argumentative by 

repeatedly insisting that Trooper Martin call a supervisor after Trooper Martin declined to do 

so. Finally, he refused repeated commands to exit the vehicle before finally cooperating. These 

specific, articulable facts made it reasonable for Trooper Martin to extend the traffic stop in 

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order to conduct a field sobriety test. That Trooper Martin’s reasonable suspicion that Ellison 

was impaired was proven to be incorrect is not relevant. A government official “will not be 

liable for mere mistakes in judgment, whether the mistake is one of fact or one of law.” Hicks 

v. Scott, 958 F.3d 421, 433 (6th Cir. 2020) (quotation omitted). “Qualified immunity therefore 

limits success in such suits to only those situations in which no reasonable officer, of all the 

universe of reasonable officers, would make a given decision.” Henry, 814 F. App'x at 979.

 Finally, this case is distinguishable from the primary case relied upon by Ellison, Green v. 

Throckmorton. There, the judge denied qualified immunity to the police officer on the basis 

that a jury could find facts under which the officer’s suspicion of driver impairment was “plainly 

incompetent.” 681 F.3d at 864. The driver there committed two minor traffic infractions—a 

lane violation and failure to dim high beams in the face of oncoming traffic—but it was a wet 

night with poor visibility, she was driving on unfamiliar roads, and she gave a rational 

explanation for why she had improperly used her high beams while driving. Id. The driver in 

Green also did not fail to answer the officer’s questions, was not argumentative, and did not 

refuse a command. Id. at 856–857 (explaining the driver’s cooperation). Conversely, Ellison 

seemed unaware that he made several traffic violations, he made them on a night without 

visibility problems, and his demeanor was argumentative throughout most of the traffic stop. 

Trooper Martin’s suspicion of driver impairment was not plainly incompetent. 

 For these reasons, the Court concludes that Trooper Martin has qualified immunity on 

the Ellison’s Fourth Amendment claim to the extent Ellison alleged that Trooper Martin 

unlawfully extended the traffic stop and attempted to conduct a field sobriety test. 

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 2. Probable Cause Determination

 Next, Ellison argues that he was arrested without probable cause in violation of the 

Fourth Amendment. See Williams ex rel. Allen v. Cambridge Bd. of Educ., 370 F.3d 630, 636 (6th 

Cir. 2004) (“A law enforcement officer may not seize an individual except after establishing 

probable cause that the individual has committed, or is about to commit, a crime.”); Crockett v. 

Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (“[A]ny arrest without probable cause 

violates the Fourth Amendment.”). Trooper Martin arrested Ellison for disorderly conduct and 

impaired driving, before deciding to release him without charges. In moving for summary 

judgment, Trooper Martin argues that is entitled to qualified immunity because he had 

probable cause to arrest Ellison for those two offenses, plus for obstruction of official business 

or failure to comply with a lawful order. 

 “Probable cause exists if the facts and circumstances known to the arresting officer 

justify a prudent man in believing that a crime has been committed.” Logsdon v. Hains, 492 

F.3d 334, 341 (6th Cir. 2007) (citation omitted). Whether an officer had probable cause is 

analyzed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 

vision of hindsight.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) 

(citation omitted). “[A]n arresting agent is entitled to qualified immunity if he or she could 

reasonably (even if erroneously) have believed that the arrest was lawful, in light of clearly 

established law and the information possessed at the time by the arresting agent.” Harris v. 

Bornhorst, 513 F.3d 503, 511 (6th Cir. 2008). The focus is on the facts the officer knew at the 

time of the arrest, but his subjective state of mind is irrelevant. See Devenpeck v. Alford, 543 

U.S. 146, 153 (2004). In fact, “an arresting officer’s ‘subjective reason for making the arrest 

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need not be the criminal offense as to which the known facts provide probable cause.’” United 

States v. Harness, 453 F.3d 752, 755 (6th Cir. 2006) (quoting Devenpeck, 543 U.S. at 153). An 

officer cannot be liable for a Fourth Amendment violation so long as there was probable cause 

to make an arrest for any offense, even if not on the offense charged by the officer. 

 The existence of probable cause is generally a question for the jury, but the Court still 

must examine whether “there is only one reasonable determination possible based on the 

evidence produced by the parties.” Snyder v. Kohl’s Dept. Stores, Inc., 580 F. App’x. 458, 462 

(6th Cir. 2014) (quotation omitted). Probable cause is a legal question for the Court if the facts 

are not in dispute. Penn v. Bergtold, 803 F. App’x 900, 903 (6th Cir. 2020) (citing, in part, Hale v. 

Kart, 396 F.3d 721, 728 (6th Cir. 2005)). The right to be free from arrest without probable 

cause was clearly established in 2016 for purposes of a qualified immunity analysis. See, e.g.,

Radvansky v. City of Olmsted Falls, 395 F.3d at 311 (establishing that the Fourth Amendment 

prohibits “a law enforcement officer may not seize an individual except after establishing 

probable cause”) (citation omitted). 

 The Court starts by examining whether Trooper Martin had probable cause to arrest 

Ellison for disorderly conduct. The disorderly conduct statute in Ohio states as follows: 

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to 

another by doing any of the following: 

(1) Engaging in fighting, in threatening harm to persons or property, or in violent 

or turbulent behavior; [or] 

(2) Making unreasonable noise or an offensively coarse utterance, gesture, or 

display or communicating unwarranted and grossly abusive language to any 

person; . . . . 

Ohio Rev. Code § 2917.11. 

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 Trooper Martin arrested Ellison for disorderly conduct after Ellison’s outburst when 

Trooper Martin attempted to examine his eyes as part of a field sobriety test. Ellison became 

angry, used profane language, raised his voice to a scream, and waived his arms directly in front 

of Trooper Martin. Ellison argues that Trooper Martin lacked probable cause to arrest him for 

disorderly conduct because he did not use fighting words. A person cannot be convicted for 

disorderly conduct based on their speech alone “unless the words spoken are likely, by their 

very utterance, to inflict injury or provoke the average person to an immediate retaliatory 

breach of the peace.” Ohio v. Hoffman, 57 Ohio St. 2d 129, 387 N.E.2d 239, 242 (1979). 

“Fighting words are those which by their very utterance inflict injury or tend to incite an 

immediate breach of the peace.” Ohio v. Thompson, 95 Ohio St. 3d 264, 767 N.E.2d 251, 255 

(2002) (internal quotation and citation omitted). Vulgar or profane language about the 

situation generally, as opposed to vulgar or profane language directed to the police officer, is 

not likely to be considered fighting words. Middletown v. Carpenter, No. CA2006-01-004, 2006 

WL 1972061, at *2, 2006-Ohio-3625, at ¶¶ 15–16 (Ohio App. 2006). The Sixth Circuit confirmed 

this year that “profanity and verbal abuse” of police officers, standing alone, is not sufficient to 

justify an arrest. Henry, 814 F. App’x at 981. 

 The problem with Ellison’s argument is that the arrest for disorderly conduct was not 

based on vulgar language alone. “[V]ulgar language, when accompanied by aggressive 

behavior, can be sufficient for a disorderly conduct conviction based on ‘turbulent behavior.’” 

Middletown v. Carpenter, 2006 WL 1972061, at *3, 2006-Ohio-3625, ¶ 17 (Ohio App. 2006). 

“The word, ‘turbulent,’ in the context of Ohio's disorderly conduct statute, refers to tumultuous 

behavior or unruly conduct characterized by violent disturbance or commotion.” Carr v. 

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Bradley, No. CIV.A. 2:07-CV-01053, 2009 WL 937145, at *8 (S.D. Ohio Apr. 2, 2009) (quoting 

Ohio v. Reeder, 18 Ohio St. 3d 25, 27, 479 N.E.2d 280 (1985)). 

 Trooper Martin faced a situation which had escalated from a routine traffic stop to an 

agitated confrontation. Ellison initially did not directly respond to routine questions about 

where he was going and whether he had been drinking. He next refused repeated requests, 

then commands, to exit his vehicle before he finally complied. He repeatedly challenged, in an 

increasingly quarrelsome manner, Trooper Martin’s authority to conduct the traffic stop 

without a supervisor. Finally, when Trooper Martin attempted to use the flashlight to check his 

eyes, Ellison became aggressive, using profane language, shouting, and gesturing with his arms 

in close proximity to Trooper Martin. Ellison’s outburst prompted Davis to tell him to “calm 

down.”4

 Even Ellison testified during his deposition that he was “angry” at that moment and 

that “someone looking at that behavior would consider it to [have been] aggressive or in some 

way threatening.” (Doc. 31-1, PageID 318.) 

 Although these facts present a close question, the Court concludes as a matter of law 

that Trooper Ellison had probable cause to arrest Ellison for disorderly conduct. It was 

reasonable for Trooper Martin to believe that Ellison was engaged in turbulent behavior that 

recklessly caused annoyance or alarm to another. Because Trooper Martin had probable cause 

to arrest Ellison for disorderly conduct, the Court need not and does not consider whether 

Trooper Martin also had probable cause to arrest Ellison for impaired driving, obstruction, or 

4

 To be clear, Davis was supportive of her fiancé in her testimony and critical of Trooper Martin. It is fair to say 

that she was concerned that Trooper Martin would overreact to Ellison’s outburst. (Doc. 31-3, PageID 618.) That 

does not change that fact that Trooper Martin could have reasonably believed based on Davis’s comment that she 

was disturbed by Ellison’s outburst. 

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failure to comply with an order. 

 It follows that Trooper Martin is entitled to qualified immunity on the Fourth 

Amendment claim for false arrest. Moreover, even if Trooper Ellison lacked probable cause, he 

still would be entitled to qualified immunity for his reasonable belief that he had probable 

cause. “[L]aw enforcement officials who reasonably but mistakenly conclude that probable 

cause is present are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal 

quotation and citation omitted); see also Goodwin v. City of Painesville, 781 F.3d 314, 333 (6th 

Cir. 2015) (“The qualified immunity doctrine requires that probable cause determinations, even 

if wrong, are not actionable as long as such determinations pass the test of reasonableness.”) 

(internal quotation and citation omitted); Slusher v. Delhi Twp., Ohio, No. 1:08-cv-273, 2009 WL 

2145608, at *10–11 (S.D. Ohio July 14, 2009) (finding qualified immunity even though officers 

lacked probable cause to make disorderly conduct arrest). Ellison has not met his burden of 

proof, and Trooper Martin is entitled to qualified immunity. 

C. First Amendment Claim

 Ellison also argues that Trooper Martin arrested him in retaliation for his protected 

speech and in violation of the First Amendment. “[T]he First Amendment protects a significant 

amount of verbal criticism and challenge directed at police officers.” City of Houston, Tex. v. 

Hill, 482 U.S. 451, 461. “The freedom of individuals verbally to oppose or challenge police 

action without thereby risking arrest is one of the principal characteristics by which we 

distinguish a free nation from a police state.” Id. at 462–463. The “right to be free from 

retaliatory arrest after insulting an officer was clearly established” before Ellison’s arrest in 

2016. See Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 219 (6th Cir. 2011). “Nonaggressive 

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questioning of police officers is constitutionally protected” so long as the conduct does “not 

cross the line into fighting words or disorderly conduct.” Patrizi v. Huff, 690 F.3d 459, 467 (6th 

Cir. 2012). 

 A plaintiff seeking to prove retaliatory arrest must prove three elements: 

A retaliation claim essentially entails three elements: (1) the plaintiff engaged in 

protected conduct; (2) an adverse action was taken against the plaintiff that 

would deter a person of ordinary firmness from continuing to engage in that 

conduct; and (3) there is a causal connection between elements one and two—

that is, the adverse action was motivated at least in part by the plaintiff's 

protected conduct. 

Kennedy, 635 F.3d at 217. A motivating factor is a “but for” cause. Id. “Proximity in time can 

support an inference of a causal link.” Scheffler v. Lee, 752 F. App'x 239, 253 (6th Cir. 2018). 

 In 2019, the Supreme Court settled a dispute in existing case law and held that “[t]he 

plaintiff pressing a retaliatory arrest claim [also] must plead and prove the absence of probable 

cause for the arrest.” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019); see also Hartman v. 

Thompson, 931 F.3d 471, 484 (6th Cir. 2019) (following Nieves).5 It is not necessary to wade 

deeply into the weeds on the interplay between probable cause and retaliatory motives for an 

arrest before Nieves. It suffices to explain that the Supreme Court instructed in 2012 that 

because the law was “not clearly established that an arrest supported by probable cause could 

give rise to a First Amendment violation[,]” then officers who made an arrest with probable 

cause were entitled to qualified immunity on a retaliatory arrest claim. Reichle v. Howards, 566 

5

 The Supreme Court added a narrow caveat not applicable here for “circumstances where officers have probable 

cause to make arrests, but typically exercise their discretion not to do so.” Id. at 1727. “[T]he no-probable-cause 

requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise 

similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. Ellison makes 

the bald argument that the Nieves exception applies here, but the Court does not find the argument compelling in 

the absence of persuasive reasoning. 

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U.S. 658, 670 (2012). The Sixth Circuit has followed and applied Reichle by granting qualified 

immunity to officers accused of retaliatory arrests when probable cause was proven. See, e.g.,

Novak v. City of Parma, 932 F.3d 421, 429 (6th Cir. 2019) (“If the officers did have probable 

cause, . . . they are entitled to qualified immunity.”); Phillips v. Blair, 786 F. App'x 519, 529 (6th 

Cir. 2019) (“Without controlling authority clearly establishing a First Amendment right to be 

free from a retaliatory arrest otherwise supported by probable cause, we also reverse the 

denial of qualified immunity on this claim.”); Marshall v. City of Farmington Hills, 693 F. App’x 

417, 426–427 (6th Cir. 2017) (finding that officers who had probable cause were entitled to 

qualified immunity on a retaliatory arrest claim). 

 The Court concluded above that Trooper Martin had probable cause to arrest Ellison for 

disorderly conduct. As such, Ellison cannot establish a retaliatory arrest claim as a matter of 

law, and Trooper Martin is entitled to qualified immunity. 

IV. Conclusion

 In light of the foregoing, it is hereby ORDERED that Defendant’s Motion for Summary 

Judgment (Doc. 31) is GRANTED. 

 IT IS SO ORDERED. 

 s/Michael R. Barrett _ 

Michael R. Barrett, Judge 

United States District Court 

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