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ATION: 2004 FED App . 0169P (6th C ir.) File Name: 04a01 69p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

R HYS W IL LI AMS , a minor, by his mother and next friend, Gail Alle n, et al.; G AIL A LLEN ; D AVID A LLEN , Plaintiffs- Appellant s (02-32 00),

Z ACHARY D URB IN , a minor; B OBB I L A C ROSS , Plaintiffs- Appellant s (02-32 07),

v.

C AMBRIDGE B OARD OF E DUCATI ON , et al., Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - - - - - N Nos. 02-3200/3207

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

umbus. No. 00-00388—Algenon L. Ma rbley, District Judge.
Argued: July 31, 2003
Decided and Filed: June 4, 2004 2 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

Befor e: DAUGH TREY, MOO RE, and SUT TON, Circ uit Judges.

_________________ COUNSEL

ARGUED: James D. McNamara, Columbus, Ohio, Mark E. Jurko vac, Colu mbus , Ohio , for A ppell ants. Brian M . Ze ts , SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, Mark D. Land es, I SAAC, BRA

NT, LEDMAN &

TEETOR, Columbus, Ohio, Richard W. Ross, MEANS, B ICHI MER, BURKHOLDER & BAKER CO., Columbus, Ohio, for Appellee. ON BRI EF: James D. McNamara , Col umbus, Ohio, Mark E. Jurkovac, Rick J. Abraham, Columbus, Ohio, for Appellan ts. Bria n M. Zet s, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, Mark D. Landes, John S. Higg ins, ISAA C, BRANT, LEDMAN & TEETOR, Co lumbus, Ohio, Richard W. Ross, MEANS, B ICHI MER, BURK

HOLD ER & BAKER CO., Columbus, Ohio, for Appellee.
SUTTON, J., delivered the opinion of the court, in wh ich DAUGHTREY, J., joined. MOORE, J. (pp. 2 5- 45), delivered a separ ate opini on dissent

ing in pa rt and concurrin

g in par t.

_________________ OPINION

_________________ SUTTON, Circuit Judge. On April 20, 1999, fo urte en studentsand on e teach er were k ille d at Co lumb ine Hi gh School in Littleton, Colorado. Two students at the school, we eventually lea

rned, were responsible for the killing spree

. OnFriday, A

pril 23, 1999, three day s after Columbine, a trio of students at Cambridg e Junior Hig h School in Cambridge, Ohio reported to the Vice-Principal of the schoolNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 3

that Rhys Williams and

Zach Durbin pla

nned to commit acts of violence at the school. Rhys and

Zach had prior criminal records and both were then o n juvenile probation. After interviewingthe three students, after taking written statem ents from ea ch of the m, after in

terview ing Za ch Durbi n (the onl y
one of the two boys at school that day ) and after

consulting with probationoffice

rs, schoo l officia

ls initiated “emergency

remo v[al]”

procee dings against the t

wo studen

ts. As a re sult, juvenile parole o fficers took both s tudents in to custody

at a juvenile detention facility for the

weekend. On

the following Monday morning, the juvenile court placed both students on house arrest for several day s, and they did not return to school for ten day s in Zac h’s case and for s everal

day s in Rh

ys’ s
case. According to school officials, t he bo ys s tayed home throu gh voluntary

decision s of their

parents

. According to the boy s’ parents, the school suspended them for these periods of time. The juve

nile prosecutor ultimately did not file cha rges agains tRhy s Williams, bu t he did fil e an a ggravated menacingcharge ag ains t Zach Durbin. I n September 1999, Zach was acquitted of the cha rge.

Inthe aftermath of the arrests, the boy s and thei

r paren ts filed constitutional tort claims under 42 U.S.C. § 1983 (along

w ithsevera

l state-l aw claim s) aga

inst the re levant schoo l officia ls and law enforcement

offi cers. In particula

r, they contended

(1) that the l ocal off

icials fa iled to est

ablish probable cause for

the arrests

in violation of the F ourth Amendment

and (2) that the two boy s received school suspensions without du e process in violation of the Fou rteenth

Amendment. The district court rejected the s e claims an d severa l others a s a matter

of law. We

affirm.

I.

A. Events P receding

the April 2 3rd Arre st

InApril 1999 , Rhy s Williams a nd Z ach Durbin were fourteen years old and were in the eighth gra de at Cambr idge 4 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

JuniorHigh School. Both students had previous criminal problems and wer e on juven ile proba tion in Apr

il 1999. Rh ys also had been disciplined by the school for sever

al incide nts of threatening behavior.

On Wedn esd ay, April 21, 1999, one da y after th e Columbine trage dy, the two boys went to R hys’s house. While there, t

hey watche d te le vision coverage of the Columbine shootings with Rhys’s mother, Gai l Al len. At

some point th at afternoon, Rhys a sked his mother what she would do if Rhys and Z ach did “somethinglike that.” JA at 469 (Durbin Dep.).

Later that n ight Z ach spok

e with a c lassmate , Kay la Hollins, onthe telep

hone. Ac cording

to Zach, he mer

ely told Kay la about his conversation with Rhys and Ga il Allen earlier inthe day. Ac cording to Kay la, Zach told her that he was “getting sick of the way thing s were going” and was planning

onbringing

a gun to school or bombing the school. JA at 252 (Hollins Test.). Kayla

alleged that Zach also said he would kill th e “preps” first, JA at 147 (Hollins Recorded Statement)—meaningthat he wo uld kill Sadie LePage a

nd that Kayla would be “one o f the first to go,” JA at 532 (Hollins Dep. I)—but that he would not hu rt K atie Spittl e because he like d her, JA

at 151 (Hollins Written Statement).

B. Friday, April 23, 1999

1. Zach Dur

bin

OnFriday mor

ning of that week, two days after her conversation

with Zach, Kay

la wrote a note to Sadie LePage, saying that Zach “was going

to bring a gu n to school and shootus all because he was sick of bitchy pr eps.” JA at

152 (LePage Written Sta

tement). Sadie showed the noteto Katie Spittle, another classmate. During the lunch period, Sa

die and Katie asked Za

ch whether the c ontents of the n ote were true, an d he alle gedly

told them they were , a

point that ZachNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 5

disputes. After lunch, Sadie and Katie told school off ici als about the thre at. They

first told Julie Or sini, the guidance

couns elor, about the

note that

Kay la had wr

itten. Or sin i notified Vice-Principal William Howell about the matter and relaye d her impression that

the girls were “visibly

shaken up [and] . . . feeling threatened.” JA at 576 (H owell Dep.). Howell met with S a die and Katie individually, and la ter called Kay la to his of

fice as well. Al l three girls spoke to Howell about wha

t had happ ened, the

n wrote st

atements in whichthey descr

ibed t he eve nts of tha

t morning

and their interactions with Zach. In K ayla’s stateme

nt , she said the follo wing:

Italked to Zac on the phone

Wednesda

y ni ght & he

said he was sick of every

body, e very

one was g etting on his

nerves & he & Rhy s Williams were talking about bringing a gun to school & he was very

serious about the matter[.] [H]is othe r op tion was planting a bomb & taking every

one out on

the first (one) shot. B ut he had made very

clear h e would

spare K atie Spittle because he liked her. This morning I [said] t o Sadie LePage I had spokento Zac

& she asked what

about & that is when I wroteSadie tel ling her about our

(mi ne & Za c’s) conversation. Half of the note is now gone.

Id.

Sadie sai d the following in h er state ment:

Iwa s s it ti ng in fi rs t p er io d t od ay a nd Kayla Hollins wroteme a notethat said Zac Durbin was going to bring

a gun to sc hool and shoot us all because he was sick of bitchy preps and he was go ing to start with me bec ause he hated me so much. Then it sa id that he said it would just be easie r to plant a

bomb because

he could get us all at once. Then in band

(second period)I sh owed Kat ie S pittle the note because I was scared and she took t h e note to him at lunch and he said that it was rea lly true
, 6 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

that he was ta

lking to Rh

ys a nd th ey were se

riously thinking about it. Zac hates me so much be cause

I broke up with him 1-2 months ago. And he said he was going to spare Katie of all of this because he likes her.

JA at 152.

And Katie

said the f ollowing in her sta tement:

This morning in 2n d peri od (Ban d) Sad ie LePage showed

me t he note. A t lunch I asked Za c if it was really

true,

a nd he said yes. He

said him and Rhys wer e talkin g about it. He pointed to Sadie and said she’s going first. He said he was going to spare me, because he liked me.

JA at 153.

After his meetings with the three girls and af t er obtaining their statemen ts, Howel l contacted Assistant Superintendent James Spisakto inform h im of the si

tuation a nd to begin the

eme r gency

removal process with respect to Zac h. Spisak agreed that Za ch should b e remove d from the school under § 3313.66 of the Ohio Revised Code because of the “continuing danger” he posed. In a n effor t to relea se Zach t

o
anadult, Howell initially tried to reac h Zach’s mother, Bobbi La Cross, but s he was u navai lable . He th en call ed Za ch’ s probationoffice

r, Jeffre y H ayes, who c ame to the school. At roughly th e s am e t im e, Ho we ll no ti fi ed Of fi ce r R an dy LeP age and Detective Brian Harbin of the City of Cambridge Police Department about the matter.

When Hay es arrive d at the sc hool, How ell brief

ed him about the situation, told him that the police had been notified and showed him the three girls’ written statements. Hay es asked Howell “ whether these [g irls] were re

putable students” because he wanted to de te rmine “whether it was somebody trying to get e ven with Zach or that type of thing .” JA at 509 (Hay es Dep.) . Howell

confirmed the credibi lity of the g irls’Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 7

statemen ts on the basis of their reputations as students. Hayes thencalled his supervisor, Jean Stevens, the Chief Probation Officer of Guernsey

County, alerting he

r to the alleged threats, the gir

ls’ state ments supp orting t

hem, the g

irls’ rep utations with Howe ll, the cr edibility of their s tatement s fromHowell’ s perspe ctive, a nd the poss ib l e police investigation. Hayes

told Stevens thatRhys was not at school that day andthat police were looking for him. He then recommended

to h er that Za

ch be re moved fr om the school. Stevens authorize d Hay

es to remove Zac

h from the s chool and to take hi m in to detent ion at the

Guernse y Co unty Juvenile Probation Department.

At th is po in t, Ho we ll re mo ve d Z ac h f ro m s tu dy hal l and tol d him about the girls’ allegations. I n response, Zach confirmed

that he knew about

the note and acknowledged that Rh ys (in his presence) had been “joking a round” when

talking to Gail Allen about the incident at Columbine, JA at 581 (Howell Dep.), b ut den ied the r

est of Howell’s ac cusation s, JA at 473 (Durbin Dep.). After the interview, Howell asked Hayes to escort Zach from the school. While Hay es claims that he did not

arrest Zach at this point, heacknowledges that Zach was not at libert y to leave and that he handcuffed Z ach inconform

ity w iththe probation depart ment’s po licies. Hayes signed Zach out of

the school late Friday

afternoon and escorted him to the Guernsey County Probation Department i n Byesville. Upon a rrival, Zach was shackled a nd handcuffed

to a chair. Eventually , Zach was drive n t o the Jefferson County Juvenile Detention Facility in Steubenville, where he rema

ined over the wee kend until

he retur ned to Guernsey County for his Juve

nile Court ap pearance on Monday, April 26th.

2. Rhys Will iams

Rh ys was not involved with the in ve stigation that took place at the school on Friday , April 23rd, because he was not insc ho ol th at da y. Stevens claims that neither she nor Hay es 8 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

ordered Rhys’s arre st, al thoug h she admitted that she author ized his deten tion in a ph one cal l wit h a Cam bridge police office

r. Se veral Cambridge police officers arr ived at Rhys’s house on Friday

afternoon and in formed his mother, Gai l Al len , t hat he h ad b een im pl ica ted in a bo mb th rea t. In response, Allen called the probation department. Becky Masters, the probation officer with whom she spoke, confirmed

the police officers’ report and aske d Allen to bring Rh ys to the department. Allen brought Rhys to the probation department in

Byesville, whe

re Masters and a transportation officer handcuf fed and shackled

Rhy s. He was ev entually drive n withZach to Steubenville, held for the weekend a nd returned to Guernsey County

for an a ppeara nce in Juve

nile Court on Monday, April 26th.

3. City of Cambridge Police Officers
Captain Randy L ePage and Detective Br ian Harbin of the City of Cambridge Police Department rece ived a call from Howell on the afternoon of April 23rd. By the time they arrived at the school, howev er, Hay es and Zach had alrea

dy departed. Because Sadie w as Cap tain LePage’ s daughter, LePage recused hi mself

from any fur

ther involvement and Ha rbin assumed control of the investigation. Harbin col lecte d the written statem en ts that Howell had taken from the three girls, then took a statement from Howell before leaving. He also took more formal statements from each of the girls at the police station later

that afternoon. There is no evidence that Harbin ordere d Rhy s’s a

pprehe nsion, but H arbin wa s in charge of the investigation when C ambri dge Police Officers arrived at Rhys’ s home.

C. Monday, April 26th, 1999

OnMonday, April 26th, the earliest day

they could appe ar inju ve ni le co ur t, Za ch an d R hys were re turned to Guernsey Co un ty. At

the courthouse, they

were separately

interviewed by Harbin a

nd later appear ed to g ether b efore J udgeNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 9

Urbanowicz of the Guernsey County Court of Co mmo n Ple as. Rh ys and Zach both were

placed u nder hou se arrest for a few da ys at the e nd of the he aring. Zach was also e lectron ically monitored

as part of his house arrest. Late r that we ek, Har

bin transferred

the results of

his investigation to Roy Morris, the Guernsey Co un ty J uv enile Prosecutor. Morris reviewed the informationand ch arged Zach with makin g “ mena cing threats” in violation of Ohio Revised Code § 2903.21. Adh eringto the gu

idelines f or Guer nsey County juvenil e procee dings, Harbin picked up a written statement of the charge from Morris’s office, signed it, and filed it with the Clerk’s office. Morris declined to file any ch arges agains t Rh ys because he believed probable cause di d not exist that he had committed, or was about to commit, a crime. Zach appeared before Judge Urbanowicz to face trial for the single menacing charge

on September 18, 1999 and was acquitted.

D. Suspension Iss ue

Rhys and Zach stay

ed home from school for a period of time following

their appearance in juvenile court. Alth ough their parents allege that Rhys and Za ch were suspended, the school disputes the point, cla iming it ne

ver suspe nded them

. Gail Allen acknowledges that she never r eceived offici a l papers concerning a suspension for Rhy s, noting that she kept him home from school in excess of a week bec aus e she wanted to shield him from a potential backlash by h is p eers and because she accepted the a dvice of the school principal who thought it would be in his best interests as a matter of

sa fe ty.

Bobbi L aCros s alleges that Howell asked Za ch to sign a paper concerning his suspension at the cour thouse, then told her that he planned to suspend Zach if he was convicted of the aggrav ate d

menacing charge . LaCross allegedly asked Howell about the possibility of appealing any suspension, to whichhe responded that he would mail her thenece ssary papers. In his

brief on appeal, however , Howell s tates tha t a 10 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

“Notice of

Suspension” for Zach was prepar ed onApril 26th inacco rdance w ith Ohio Revised Code § 3313.66, but the school never took action on the notice, and it never of ficially suspended him.

When she di d

notreceiv e any

suspension papers , LaCross allege dl y called Superintendent Thomas Lodg e to inquire about receiving the papers a

nd about the appea

l proces s. She

sa ys th at Lo dge told her “he had got the suspension pa pers and there was no recommendation for expulsion.” JA at 621 (LaCross Dep.). Lodge , however, claims official suspension papers for Zach did not cross his desk a

nd that he

told LaCr oss that si nce no suspension was yet filed, “there’s nothing to appea

l at this poi

nt in tim e.” J A at 63 8 (Lodge Dep.). LaCr

oss persi sted and alleges that on May 21, 1999, she wa s able to obtain the original suspension papers. She attempted to file a written appeal on May 24, 199 9, but did not receive a

hearing, as the school

maintained there was no initial suspension from which she could app eal. How ell and L odge note that a copy of the “Notice of Suspens ion” wa s indeed mailed to L

aCross in lateMay 1999, but that without further action the document

alone didnot constitute an out-ofschool suspension.

E. Procedural History

OnMarch 29, 2000, Zach a nd his mother (B obbi L aCross) and Rhys and his parent s (Gail and Davi d Allen) f iled this la wsuit. They asser ted a variety

of fed eral-la

w claims—violation of the boys’ F irst, Fourth and Fou rteent h Amendment

rights u nde r § 1983, the existence of city a nd school customs tha

t caused these constitutiona

l viol ations and the presenc e of a ci

vil conspira

cy to violate these rights. And they asserte d a varie

ty o f state- law cla

ims —malicious prosecution, false imprisonmen t, false a rrest, defamation

and intentional infliction of emotional distress.Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 11

OnSeptembe

r 20, 2001 , all of the de fendant s filed motions for sum ma ry judgment, which the district court granted. First, the court determined that the d efe ndants ha d probab le

cause to detain Rhys and Z ach

and acc ordingl

y r ejecte d their Fourth Amendment claims. Second, the court determined that neither Rhys nor Za

ch was actually

suspended from

s chool and acco rdingly r

ejected their Fourteenth Amendment cl aims

. Third, t he court concluded that Zach and Rhy s could not substantia te their conspiracy

claim. Fourth, the court rejected the state false arrest an d fals e imprison ment clai ms becau se Rhy s and Zach could not prove that their detention s wer e unlawfu l. Fifth, th e court rejec ted the state law claim of

ma licious prosecution because Harbin had rea sonab l e suspicion that Zach had engaged in mena cing . Finally, the court rejected the other claims because Rhy s and Zach had failed to respon

d to the de fendant s’ summa ry -ju dgment motion on them.

Onappea l, R hys and Z ach challenge the district court’s resolutionof their F ourth and Fourtee nth Amend

ment clai ms. Inad di ti on , R hys appea ls his fals e arre st and fa lse imprisonmentclaims, a nd Zach appea

ls his malic iousprosecution claim.

II.

The customary rules f

or review i ng a summary-judgment decisionapply. We give

de novo review to the district court’s decision. Sperle v. Mich. Dep’t of C orr. , 297 F.3d 483, 490 (6th Cir. 2002) . A decis ion gra nting sum

mary judgmen t is proper where no genuine issue

of material fact exists and the moving party

is entitle d to judgment as a matter of law. Fed. R. Civ. P. 56(c). And in considering such motions, we give all reasona

ble fac tu al i nf

er en ce s t o t he no nm ov in g p ar ty. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). 12 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

Public o ffic ials who perform discretionary functions “gene rally are shielded from liab ility for civil damages insofar as their co nduct does not violate clearly established statutory or consti tutional r ights of which a reasonable person would have known.” Harlow v. F itzgeral d , 457 U.S. 800, 818 (1982). Two questions thus arise in t his context: Did the government

officials violate a constitutional gu aran te e? And, if so, did the

violation i

nvolve a c learly

-establi s he d constitutional right of which a reasona ble officer would have been aw are? See Sauc ier v. Katz , 533 U.S. 194, 201 (2001). Inthe absence of an affirmative answer to both questions, the constitutional tort claims must be dismissed as a matter of law.

A. Four th Ame ndment C laim

The parti es share common ground with respect to the Fourth Amendment’s requirements in this area. As a general

ru le
, a law enforcement officer ma y not seize an individual except after establishing probable cause tha t the indi v idual has committed , or is abo

ut t o commit, a crime. See Beck v. Ohio
, 379 U.S. 89, 91 (196 4). Pro bable cause means the “facts and circumstances within the officer’s knowledge that

are sufficient to warrant a prudent person, or one of

reasona ble caution, in believing, in the circumstances shown, that the suspe ct has committed, is committing , or is abo

ut to commit anoffense.” Michigan v. DeFillipo , 443 U.S. 31, 37 (1979). Once “probable cause is established,” this Court has added,

anoffice r is under no duty to investigate fur

ther or to look for additional evide nc e which may e xculpate the accused. In fact, law enf orce m ent “is under no obligation

to give any

credence to a suspect’s story [or alibi] nor should a plausibl e exp lanation in any sense require the o ff

icer to forego arrest pe nding further investigation

if the fa cts as init ia l ly discovered pr

ovide probable cause.”Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 13

Ahlersv. Schebil , 188 F.3d 365, 371 (6th Cir. 1999) (citations omitted). At the same time, of ficers m ust consider the totali ty of the evidence “known to

them”when con sidering

probable cause, and in c ases w

here they have both inculpatory a nd exculpatory

evidenc e they

must n ot ignore the exculpatory evidence inorder to find probable cause. Id

. at 372. A “mere suspicion” of criminality will not suffice. United S tates v. Harris , 255 F.3d 288, 292 (6th Cir. 2001).

The rub in this cas e is whether probation officers Hay es and Stevens—the tw o p ri ma ry d ef endants w

ith respe ct to this claim—had

probable cause to take Zac h and Rhy s into

c ustody on Friday, A

pril 23, 1999. In the district court’s view, the “i nform ation conve yed in the gi rl s’ written statemen ts was sufficient for

the Defendants to have had more thana ‘mere

suspicion ’ of William s’ and Du rbin ’s alle ged criminal activities.” Williams v. Cambridge Bd. of Educ. , 186 F. Supp. 2d 808, 816 (S.D. Ohio 2 002). In re sponse to t his conclusion, plai ntiffs argue that because Ha yes and Stevens reliedon vague statements the girls made to Vice -Principa l Howell and did no t test the r

eliability of the sta

tements themselve s, they

did not hav e probab le cause to detain either of them.

The problem with this argument is thatHayes a

nd Stevens did not mere ly a

ccept th e girls ’ three statements at face value. After two of the girls spoke to the g uid ance co

unselor, Julie Orsini, about the

threats, she passe d along

the infor mation to Vic e-Principal Howell and explained that the girls “were visibly shaken u

p; that—th at the y were

feeling threatened because they had had a

co rres pondenc e with Z ach Dur bin concerning

threats to them.” JA at 576 (Howell Dep.). Howe ll in turn spoke to all three girls, then asked each of themto write statements about what had happened. The three girls all conveye d the same essential informat ion to Howe ll, and their wr itten stat ements ma

tched the ir oral st

atements

. The contents of the statements were any thing but “kids wil l be kids” mat e rial. According to Sadie L ePage: (1) “Zac 14 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

Dur bin was going to bring a g

un to school and shoot us al l because he was si ck of bitchy

preps”; (2) “he

said it wou

ld just be easier to p la nt a bomb because he could get us all at once”; and ( 3) “[Zach] was talking to Rhy s and they wer e seriously thinking about it.” According to Kay la Ho ll ins: (1) “I talked to Za

c onthe phone Wednesday night & he said he was sick

of every body, every

one was getting on his nerves & he & R hys Williams were talking about bringing a gun to school”; and (2) “he was very serious about

the matte r [;] his other option was planting a bomb & taking every one out on the first (one) shot.” According to Katie Spittle: (1) “At lunchI asked Za

c if [the note] was really true , and h e said ye s. He said hi m and Rhys were talking about it”; and (2) “[h]e pointed to Sadie, and said she’s going first.”
Only after Howell vouched for the g irls’ cr edibility, and indeed only after H ayes quer

ied whe ther the girls could be trusted, did Hayes

credi t this version of the events. In view of Howell’s position as Vice-Pr incipal, Hay

es was jus tified in trusting Howell’ s assessment of the three girls’ credibility and inrespecting Howell’s superior position for doing so. On top of this information, Howell separately met with Zach, who confirmed

that he knew about

the original note, but denied the remainder

of Howel l’s acc

usations, contendingthat Rhy s (in his presence) had been

“joking around” when they discussed the Columbine incident with Gail Allen.

Onthis record, the of

ficers ’ investigation sufficed for the task at hand. T

he questi on is not wh ether Z ach made these threats but whether the defendants had p rob able ca use to b elieve that he ha

d made the

m. In t he afte rma th o f Columbine, the corroborated statements of three girls whom Vice-Principal Howell de emed tru stworthy permissib ly

cemen ted the probat ion officers’ probable caus e determination—re gardle ss of whether the concer n was a shooting /bomb threat or criminal menacing and re gardless of whether the suspe ct himself

denied ma

king thos e threa

ts. At

a min imum, the acknowledged statements establishedNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 15

pr obabl e cause of aggra

vated menacing, particularly in the environment

of that sobering week

. See Ohio Rev. Code Ann. § 2903.21 (“No person shall knowingly cause another

to believe that

the offender will cause serious phy sical ha rm to the person or property

of another person . . . . Whoever violates t his section is

guilty of agg ravate d menaci

ng.”) ; see also Cohen v. Dubuc , No. 3:99- CV-2 566( EBB ), 20 00 WL 1838351, at *4 (D. Conn. Nov. 28, 2000) (police officer had probable cause to arrest a high school student after thr e e independent

w itnesses g ave statements that, two day s after the Co lu mb in e t ra ge dy, they hear d the student make threatening comments about “shooting up” the school).
Separate ly, R hys Williams and his parents arg ue that the second-hand

refer ences to him in the gi rls’ stat ements did

not establish probable cause for his arrest. “A

close review of the g irl s’ statemen

ts,” they argue , “reve als that these stude nts made no claim that they had see nor heard [him] do anything

. . . [and] only reported that [Zac h] told them he had

‘spoken to Rhys about it.’” Williams Br. at33. They also cla im that Kayla’s conduct—

first reciting her stor y in a note to a friend two day s after her initia

l conversation wit

h Zach, then

trying to tear up t

he note , then becoming afraid when her story began to sprea d—shows she exagg erated her acc usations.

The evidence, however, cannot be so readi ly parsed. While

we ac knowledge that it is easier to dispense with Zac h Durbin’s claim thanit is to resolve Rhys’s cla im as a matter of law, the girls’ statem ents co nfirm that Rhys was indeed connected

to the matt

er. Just as i

mportantl y, Z ach him s elf confirmed

to Vice-Principal Howel l that he and Rhys were involved in all of the relev ant condu ct—whether one la

bels the conduct a plan of v io lence, a threat of violence or an immature (b ut me na ci ng ) j ok e g on e a wr y. Having concluded that probable cause existed for the one boy that Fr iday afternoon, it was r easonable as a matter of law for the probation of

ficers to conclude that it existed for the other. That Rhys was not eventually charged with menacing doe s 16 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

notchang e matters. An arr est gro unded in probable

cause does notbecome i

nvalid merely bec ause the State chooses not to prosec ute the individual or a jury opts for a cquittal. See Criss v. Ci ty of Ken t , 867 F.2d 259, 262 & n.1 (6th Cir. 1988).

B. Fourt eenth Am endment Claim

Plaintiffs separately

argue that the school officials violated their due-proc ess ri ghts in suspending them without notice and a hearing. We disagre e.

While the Due Process Clause applies to c hi ldren an d to p ublic sc hools, the Supreme Court has long made clear that the procedu

ral req uiremen ts of the Cl ause have considera bly less force when appl ied to discipline meted out by school officia ls to students under their care. Unlike juvenile criminal proceedi n gs, for example, hearings in connection with short school suspensions need not “afford the student the opportuni ty to secure counsel, to confront and cross-examine witnesses supportin

g the charge, or to call his own witnesses to verify his version of the incident.” Goss v. Lopez , 419 U.S. 565, 5 8 3 (1975). Imposing such for malities on a school suspension proceeding

would “no t only

make it too costly as

a regula r discipli nary tool but als o destroy

its effectiveness

as part of the teach ing process.” Id . Befor e susp endin g a studentfor ten day s or less, as a result, all that a school official must do is g iv e (1) adequ ate no tice o f the ch arge agains tthe s tudent, (2) an explanation of the evidence supporting the charge and (3) an opportun ity for the student to respond. See id

. at 581; Martin v. Shawano-Gresham Sch. Dist.
, 295 F.3d 701, 706 (7th Cir. 2002) (“[U]nder Goss studentshave a right

to only minimalprocess .”); Donovan v. Ritchie
, 68 F.3d 14 , 17–18 (1 st Cir. 1995 ) (apply in g these requirem ent s to a temporary school sus

pension that also barred participation in athletics and s chool activities, yet noti ng that under Goss , “the mere fact other sanctions are added to a short suspension does not trigger a requirement forNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 17

a more for mal se t of

procedu res”); C.B. ex rel. Breeding v. Driscoll
, 82 F.3d 383, 386–87 (11th Cir. 1996) (noting tha t, inthe short

school-s uspension context, “the process provided need consist only of ‘oral or w ritten notice of the charges agains t[the student] and, if he denies them, an explanationof the evidence the authorities have and an opportunity [for the student] to present

his side of the story’”) ( quot ing Goss , 419 U.S. at 582); Signet Constr. Corp. v. Borg , 775 F.2d 486, 490 (2d Cir. 198 5 ) (cit ing Goss for the proposition that “[s]i tua tions may occur

where, given the burden a norma l proceeding

would impose, the nature of the interests at stake, the time limit for state action, and other circ ums tances, an informal non-judicial hearing will suffice”).

Measured by these re quirements, each pl aintif f’s clai m fails

as a matter of law—first because neither boy was in fact suspended

and second because, with respect to Za ch, even if he had been suspen ded, the process given him was all the process that was due. We consider each cla im in turn.
1. Rhys Willi ams

Inthe district court’s view, Rhys Williams and his pare nts could not chall enge the validit y of theprocedu

res used to imposea suspension on Rhys because the sc hool never suspended him. We agree.

Rh ys and his parents claim that he “was kept out of school for a period of several day s” following his court appearance. Willi ams Br. at 24. And they observe that Vice-Principal Howell wrote a memo on April 23 , 19 99 indicating that

“ suspens ion papers for Zach and Rhy s” had been prepared. Id. at 42. At the same ti

me, however , they

conced e that “it appears that the suspension was never signed or filed.” Id . at 24. And, most perti

nently , Rhy s’s mother

acknowl edged

in her deposition that Rhys in fact wa s not suspended. 18 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

Q. He was allowed to go to scho o l that entire week,

correct? He was not under suspension? From April 26 on, he was not under suspension, was he?

A. No, he was not under suspension.
Q. So he just chose not to go to school that week?

A. Iguess a lot of

us chose t

hat he did not go that week.
Q. How come?

A. Icalled the principal and asked about the work he’s goingto miss and whet

her to—I told her I was goi ng to leave him out of

school for a few

days, this and that, and she said she’s not telling him notto come to school, but she would advise or

suggest it would be a

good thing that he di dn ’t fo r t he sa fe ty. JA at 437 (Allen Dep.).

Onthis record, the district court correctly r

ejecte d this due process claim as a matt er of law. Rhys’ s mother acknowledged

that her son was not

suspended by the school districtand

that the d ecision to keep him home was h ers, not the principa

l’s. Even

if this dec isio n cam e with the princi pal’s support, that fact does not lay the necessary predica te for this c laim—that

the schoo l district in fac t imposed a suspension.

2. Zach D urbin

The district c ourt likew ise reje cted Z ach Dur

bin’s du e process claim on the ground that the school merely initiated

a formal suspension

pro cedure against Za

ch but never followed through on it. We agai

n agre e, and a

dd that, e ven if Zach did receive an informal suspen s ion, he received all of the process to which Goss entitles him.Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 19

According

to Zach’s mother (Bobbi L aCross), on Mo nd ay, April26th, Howell told her “Zach was g oing to be suspended; butif he was found not guilty [of the aggravated menac ing charge], then the suspension would be cancele d.” JA at617 (LaCross Dep.). LaCross interpreted this statementto mean that the schoo l h ad imposed a ten-day suspension on Zach, whichwas “to be served immediately .” Durb in Br. at 15. There is little doubt that at this point suspension papers were prepared, Howell a sk ed Z ach to sig n them, an

d it is fair

to infer from the record that Howell at leas t ex pected t hat a formal suspension would be issued.

At some point after this initial conversation betwe en Howell and LaCro ss, s he ask ed Sup erint enden t Lodge for the suspension paperwork so that she could file an appeal of the suspension, as authorized by Ohio law. See Ohio Rev. Code Ann. § 3313.66(D)–(E). Consistent with Howell’s previous statement to LaCross rega

rding the status of Zach’s suspension, Lod

ge told her “there ’s nothing

to appea l at this point in time.” JA at 638 (Lodge Dep.).

The s c hool eventually g ave LaCross the prepa red

s us pensionpapers—though well after Z ach had already returned to school a

nd not because

the schoo l actuall

y f ollowed through on the suspension, but because L aCros s asked to see the prop osed pap ers. Because Za ch was found notguilty of the c

riminal charge of agg

ravated mena cing in September

1999, no su spensi on was ever issued (and none appears on his record), no formal papers were served on Zach and his family, and no formal suspension pro cedur es were followed.

While the school district’s suspension policy stipulates that adequa te notice and

an opportunity for an inf

ormal hearing be given to a student before a suspension i s issued, see Ohio Re v. Code Ann. § 3313.66(A), it nowhere stipulates whe n and how school administrators are to suspend students. Nor does it prohibit

condition

ing a sus p ension on whether a 20 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

studentis criminally convicted of a charge. See gen erally Ohio Rev. Code Ann. § 3313.66. Had Zach b een foun

d guilty of aggr avated menacing , there i s no reas on to beli e ve his “Notice of Suspension” would not have cros sed Lodge’s desk, setting the offici al school-d istrict su spension process on its proper course. On this record, we agree with the district court that the school never issued the suspension, even if it d id initiat e t he suspension process, and accordinglythis dueprocess claim should be dismissed.

But even if one ass umes that the record creates a fa ct dispute about whether Zach

received an

informal suspension, hi s procedural due-process rig hts were not violated. “ [I] n connection

with a suspension of ten days or less,” Goss requires only “that the student be given oral or written notice of the char

ges ag ainst him a

nd, if he d

enies them, an explanation of the evidence that authorities have and an opportuni ty to present his side of the story.” 419 U.S. at 581. The decision also provides that “[t]here need be no delay between the ti me ‘no tice’ is giv en and the ti me of t he hear ing. Inthe gre at majori

t y of ca ses the disciplinarian may informal ly

discuss t he alleged misconduct with the student minutes after it has occurred.” Id . at 582. Here, after taking writtenstatemen

ts from the t

hree g irls, How ell calle d Zach to his office for questioning. H e informed Zach of the allegations agai nsthim and asked Zach for an explanation. No doubt, there was little delay , if any, betwe en t he n otice Zach received and

his chance to respond, but under Goss that

was all that was required. S ee 419 U.S. at 582; Kaelin v. Grubbs , 682 F.2d 595, 602 n.9 (6th Cir. 1982).

Nor was there a violation of Zach’s rig ht to ahear ing. Again, Goss po in ts th e w ay. It explains that the st udent must “be[] given an opportunity to explain his version of

the fac ts at this discussion,” and the st udent shou

ld “be tol d

what he is accused of doing and what the bas is of the accusation is.” 419 U.S. at 582. As this Court has observed, “‘informal giveand-take between

student a nd discipl inarian ’ willsatisfy theNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 21

procedural due process requirements for a suspension lasting for te n days or less.” Buchanan v. City of Bolivar , 99 F .3 d 1352, 1359 (6th Cir. 1996) (quoting Goss , 419 U.S. at 584). Once Howell

informed him of the allegations, Zach was given

a chance to respond. Heexpl ained the nature o f his conversation

with Rhy s an d Gail Allen on April 23rd, admitted that Rhys (in Za

ch’s presence) had been “ joking around” about Columbine, an d a dmitted that he knew about Kayla’s note. After this conversation, Zach may well have believed that the information before Howell di d not suff ice to suspect him of trying

to bomb the school or

shoot its stu

dents. But he cannot claim that he was denied the kind of “informal give-a nd-take betwee n student a

nd discipl inarian

” that Goss requires for a te

n-day susp ensio n from school. Goss , 419 U.S. at 584.
Zach’s argument

that his due-proc ess rig

hts were violated because he did not receive written notice, see Ohio Rev. Code Ann. § 3 313.66( A)(1), a

nd La Cross’s a rgumen t that she d

id not receive written notice within one day of the sup pose d suspen sion
, see Ohio Rev. Code Ann. § 3313.66(D), are

unava ilin g. While they

may be rele vant state -law cla

ims, they do not affect our interpretation of the Fourtee nth Amendment because the liber ty in terest to which Z ach’s du

e-proc ess righ ts attach is his interest in his continu ed ed ucation, not his interest in written notice. See Mart in , 295 F.3d at 706 (noting that in the context of a school suspension that alleged ly d

id notconform to provisions of state law, “fail ure to conform with the proced

ural requirements guarantee d by state law does not by

itself constitute a

violation o f feder

al d u e process ” and that Goss has esta blis he d the minimal due process required in the context of a short-term suspension); Purisch v. Tenn. Tech. Univ. , 76 F.3 d 1414, 1423 (6th Cir. 1996) (noting

that in the

context of

an alleg edly

unfair tenure review, “[v]iolation of a state ’s fo rmal proc edur e [] does not inand of its elf implic ate constituti onal due p rocess c oncerns

.

. . . [T]he issue

. . . is not w

hether [sc hool admin

istrator s] conformed

[with the sc hool’s] . . . grieva nce proc edure in 22 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

reviewing the te nu re decision. Rather, the issue is whether Purisch was afforded the process due to protec t his prope rt y right to a fair tenure r eview pr ocess”) ; Pro-Eco, Inc. v. Bd. of Comm’rs
, 57 F.3 d 505, 514 (7th Cir. 1995) (“Section 1983

a ffords relief only if the Constitution is offended, and a violation of a state procedural statute does not offend it.”).

Inthe end, Goss establishes th e minimal procedural require ments necessary

to protect a studen

t in the context of

a short-term school suspension. The notice Howell gave Zach was satisfactory

under Goss because

Howell, as the relevant disciplina ria n, discussed the alleged misconduct with Zach, who was given a chance to re spond. Though expeditious and assured ly informal in nature, Zach rec eived the rudimentary process re qu ir ed by Goss when the suspension is te n d ays or less. Suspended or not, in o ther words, Zach ’s Fo urtee nth Amendment due-process rights were not violated.

C. Sta te Law Clai ms

Rh ys and Zach also appea l the ir st at e l aw cl ai ms . R hys appeals his false arrest and false imprisonment claims, say ing simply that they “rise or fall enti rely on the issue of probable

cau se. For that reason, the facts and analy sis . . . regard in g [his]

. . . Fourth Amendme nt claims a

pply equally to these claims under Ohio law.” Williams Br. at 43.

As to the fa

lse arre st claim , H ayes and Steve ns, as employees

of a politica l s ubdi visi on per formi ng a governmentalfunction, are immune from tort liability unless Rh ys can s how their “(a) . . . acts or omissions were manifest ly outside the scope o f the employee’ s employment or offic ial responsibilities ; (b) [their] acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckle ss manner; [or] (c) [c]i vil liability is expressly

imposed upon[them] by a section of the Rev ised Co de.” Ohio Rev. Code Ann. § 274 4.03(A) (6)(a) –(c). Rh ys has not provid e d any evide nce tha t these defendants acted with malice, badNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 23

faith or in a wanton or reckless manner. And be ca use we have alread

y c oncluded

that Hay es and Ste vens had probable

ca use to arre st and det

ain Rhys and Za

ch, the pr

obati o n office rs’ actions were within the scope of the ir employment and in good faith.

As to the false imprisonment claim, Rhys must show Hay es and Stevens c onfin ed h im intentionally without lawful privi lege and against hi s conse nt in a limited area for a nontrivial period of time. See Feliciano v. Krieger , 362 N.E.2d 646, 647 (Ohio 1977); see also W itcher v. City of Fairlawn
, 680 N.E.2d 713, 71 5 (Ohio Ct. App. 1996). The detentionmust be “purely a matter between private parties for

a priva te end ” in wh ich th ere is no in tenti on of b ringin g a n ind ividual before a court. Rogers v . Barbera , 164 N.E.2d 162, 164 (Ohio 1960). Hayes and Stevens did not false ly imprison Rhy s becaus e they confine d him

in accor dance w ith Ohio law.

Zach also appeals his malicious prosecution clai m. To prevail
, he must establish “(1) m alice in instituting or continuing the prosecution, (2) lack of probable cause a nd (3) terminat

ion of the prosecu tion in favor of the

accuse d. ” T russell v. Gen. Motors Corp. , 559 N.E.2d 732, 735 (Oh i o 1990). Officer Harbin is the only defendant

who instituteda prosecution

in this case—charging Z ach with aggravate d menaci ng, which requi r es proof that one knowingly caused another to believ e the off

ender w ould caus e seriou s harm

. Ohio Rev. Code Ann. § 2903.21. Zach ac knowle dges that Harbin’s complain

t again st him “included these elements and further alleg ed that Za

chary threate ned the li fe of Sad

ie LePage, as well a s the lives of other students, with a gun or a bomb.” Durbin &

LaCr oss Br. at 2 8. Tho ugh the prosecution ultimately

terminated in Zach’s favor, Zach has faile d to allege any

facts tha t demonstr

ate Har bin acte d with malice toward him in commencing this prosecution. 24 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

III.

For the fore going

reasons , the distr

ict cour t’s decisio n is affirmed.Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 25

1 In fact, the C olum bine sc hoo l district, the J efferso n Co unty Sher iff’s De partm ent, and the par ents of the t wo Columbine ki ller s have al l been sued for their fail

ure to act u pon real an d cre dible threats. See Cast aldo

v. S tone , 192 F. Supp. 2d 1124 (D. Colo. 2001). The exist ence of s uch

ca ses shoul d not, howeve r, de priv e st udent s of

leg al r edres s f

or constitutional infractions by schoo ls, police, and other lo cal officials.

2 At least

one other

federal court vindicat ed the ef fort s of poli ce officers following a threat in the wake o f the Columb ine tragedy in a case that is distinguish able o n the fac ts and o bvio usly n ot binding on this pan el. See Cohen v. Dubuc , No. 3:99-CV -2566 (E BB), 20 00 WL 1838351, at *4-6 (D . Con n. No v. 28
, 2000) (t he arresting officers themsel ves interview ed the witnesse s, revea ling an a ctual d ate of attack, and the threats were more coherent and violent). _____________________________________________ DISSENTING IN PART, CONCURRING IN P ART

_____________________________________________ KAREN NELSON MOOR E , Circuit Jud

ge, diss enting i

n part, concurring

inpart. I respectfully dissent from Parts I I.A and II .B of the majority’ s opinion. The tragic destruction a t Co lumb ine High School in Littleton, Colorado etched devastatingimages

of adole scent ra

ge run amo k onto the national consciou sness. The realization that the perpetrators of this violence were y

oung teenagers cry

stallized latentfears that a new danger had emerg ed from within our own communitie s. In the

weeks o f national introspection that followed, parents, students, and educators alike expressed anxiety that copyca

t incidents were imminen t and stood vigilant agains t their

occurrence. While I

do notdiscount the reality that such an environment left thes e school and law enforcement

officials with little choice but to make unenviab le jud gments under enormous pressure, 1 I cannot conclude that post-Colum

bin e trepidation over copy cat cr ime s sys tematica

lly discounts

real fa ctual disp

utes o ver the violations of

these stu dents’ c onstitutional righ

ts. 2 Rhys and 26 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

3 I concur with the majority’s holding to the ext ent that i t aff irms the dist rict cour t’s grant o f summ ary jud gme nt as to se veral other cla ims
assert ed by Rhy s and Z ach. Fir st, nei ther plai nti ff appeal ed the gr ant of

summ a ry judgment wi th reg ards to t he fol lowing clai ms: i ntent ional inf li cti on of emotional distr ess, defamation, violati on of First Amendment rights in c ontr avent ion of § 1983, con spir acy t o viol at e § 1983 , and the exist ence and enf

orcemen t of

schooland city polic ies that p roxim ately caused the viola tion of c onstitutio nal r ight s. No tably, ne ither pla intiff argued on appeal that an of fici ally execute d or toler ated cus tom or poli cy direc tly led to and was proximately li nked with unconstit utional behavior. See Garn er

v. Memphi

s Po lice Dep ’t , 8 F.3d 358, 364 (6th Cir. 1993),
cert. denied , 510 U.S. 117 7 (1994 ). Thus, the plainti ffs are not appealing the central claims against the institutional defendan ts. Litigant s waive any clai ms or defenses that they do n ot raise in their appellate briefs. Bickel v. Kor ean Air

Lines Co. , 96 F.3d 151 , 153 (6th Cir. 1996). Second, Rhys’s a nd Z ach’s § 198 3 Fo urth Amendm ent claims against the school of

fici al and poli ce department defen dan ts fai l as a mat ter of law becaus e th ose def

endant s nev er “ arre ste d” Rhys or Zach. “[A] pers on has been ‘seized ’ within the m eaning of the F ourth Am end men t only if, in view of

all the ci rcumstances surroundin g the inci den t, a reaso nab le
person would have bel ieved t

hat he wa s not f

ree to leave. ” United States

v. Me nde nha ll
, 446 U .S. 544, 554 (198 0). No police officers were present at the school when Zach was arrested. Additi onally, al though Zach w as literally “det aine d” by the scho ol off icia ls, none of t

he school of

fici al def end ants arreste d or seized Zach such tha t they viola ted his F ourth Amendm ent rights. See Wallac e v. Batavi a Sch. Di st. 101 , 68 F. 3d 1010, 1013 (7th C ir. 199 5) (“O nce un der the contro l of t he scho ol, students’ Zach have pre sented se

veral g enuin e iss ues of material fact concerning

the circumstan ces of th eir arr ests and s uspension s, whichwo ul d p er mi t a re as on ab le ju ry t o find in their favor. At this stage of the litigation, we are cha rged only with t h e ta sk of assessing whether such a quantum of evide nce has been proffered and not with the responsibility to balance such eviden ce aga in st fac ts to th e co nt rar y. As a re sul t, I w oul d hold that the grant of

summary judgme

ntwas impro

per with respect to Rhys’s and Za

ch’s § 1983 Fourt h Amendment claims ag ain st Je ffr

ey Hay es ( “Ha y es” ) and Je an Stevens (“Stevens”) and

their § 1983 Fourtee

nth Amend

ment clai ms aga inst Wi ll iam How ell (“H owe ll ”) a nd T hom as Lo dg e (“Lodge ”). 3Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 27

movement and location are subject to t he ordering and dire ctio n of teachers and admini strato rs.”). Fu rtherm ore, w ith regar ds to R hys’s arrest, summary judgment was app ropriate for all the defend ants, except for de fenda nt Steve ns, as on ly Steve ns was in volve d in R hys’s arre st. Third, the distr ict cour t prop erl y gr ante d summar y ju dgment

on Rhys’s and Zach’s § 1983 F our teenth Amendm ent claims agai nst the Probati on Department defendants (Hayes, Stevens) and the Cambridge Police Depa rtment

defendant s (LePage, Harbin, Cit y of Cambri dge) because they have no autho rity over suspensions in t he Cambridge schools. Fourth, I concur full y with t he majorit

y’s discus sion of

the s tate -law claims. I. BACKG ROUND F

ACTS

Iexplicate my understanding of the facts bec aus e part of my disagr eement w ith the maj ority

stems from our somewhat divergent interpre tations of the rec ord, par

ticularl y th e facts

s urroundingZach’s arrest. After the phone c all o n We dn es da y, April 21, 1999, during w hich Za ch alleg edly

told Ka yl a Hollins about his plan to kill the “preps” and implicated

Rhys in theprocess, Kay

la made no mention of the phone call to her parents, to her frien ds, or to school authorities for nearly

two days. Kay

la first discussed the alleged contents of the phone call in a note written to S ad ie Le Page on Friday, A

pril 23, 1999. A few hours and several class periods later, the girls a pproached Zac

h and ask ed him whether the note’ s content s were tr ue, alle gedly

receiving an affirmative answer . Zach disputes that he c onfirmed the note’s veraci ty, and before he had a chanc e to read the note, Kay la ripped th e note in t

wo, all eg ed ly because she did not want Zach to read the note and bec ause she did not want him to get in trouble. In her testimony at Za

ch’s trial , sh e intimated that the note and the following dr ama wer

e jokes, and that she did not expec t or want Zach to get ar rested. Other facts bolster the conclusion that Kay la may have fabricated or embellished

her conv ersation

with Za ch; Kay la

was reported

to exagg erate a

t times and

had cau sed troub le for 28 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

others in the past by

prevaricating. I

t was only after

the lunch period that Sadie and Katie finally decided to inform school officia ls of the thr

eat, a pproaching the school’s guidance counselor, Julie Orsini, who in turn contacted Vice-Principal William How ell.

Howell then took t

he lead r ole in “in

vest igating” the incident

. He met wit

h Sadie an

d Katie be fore ev entually calling Kay

la to his of

fice. Al l three girls wrote sta tementsin whichth ey describ ed the ev ents of th at morning and their interactions with Zach. Howel l did not investigate the veraci ty of their claims; he instead assumed that the girls were telling the t ruth. He never saw the note that Kay la had written. At somepoint after he spoke with the girls, H owell began the pr ocess of “eme rgency remo ving” Za ch from the school, Howell c ontacte d Assistan t S uperintendent James S p isak (“Spisak”), who agreed that Z ach needed to be transferred

out of the school because of

a “continuing danger” that Zach posed. See Ohio Rev. Code § 3313.66(C).

After failing to reach

Zach’s mother, Howell c alled Ha ye s, Zach’s probation officer, so that Howell c ould rele ase Zach t o
anadult. Hayes a

nd Howell spoke twice before Hay es arrived at the s chool , and dur

ing the s econd phone call , Howell informed Hayes of the girls’ claims that Zach had threa tened themwith viole

n ce. Either before going to the school or while in transit, Hayes

spoke with

Stevens, his supervisor and t he Chief Probation Officer of Guernsey County, a

n d

errone ously

informed her that two of their juvenile probation “clients ” were implicated

in a bomb threat. Hayes mentioned that th e C ambridge police had begun a n investigation, but Hayes did not name any off

icers, and he later testified that he did notsee any police

office rs when h e arriv ed at the

school.
Uponarrival, Hay

es met with Howell, who informed Hayes about the state ments of the three

girls

. Hay

es asked Howell “whether these [girls] were reputable s tuden ts,” because he wanted to determine “whether it was somebody trying to getNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 29

4 Hayes was de posed on May 3, 200 1. H is depositi on does not appear in the Joint Appendix, but a copy of the depositi on is a part of th e offi cial dist ric t cou rt r ecord. ev en with Zach or that ty pe of thing.” Hay

es Dep. at 21. 4 However, Hayes ne

ver spoke with girls; he did not assess the girls’ credibility himself, no r did h e conduct an in-de pth investigation. Hayes

testified that his decision to seize Zach

was based on the girls’ written statements, Howell’s understandingof

the contents of Kay

la’s torn note, Howell’s intuitions about Zac h , and Haye s’s belief, shaped primarily by Howell, that the girls were r eputable sources. However, Hayes did not learn that

Kayla ha d a reputation, even among her friends, for embellishment of the truth, nor did he learn that Kaly a had disc iplinary

problems in the pas t.

The details of Zach’s arrest ar e cri ti cal. There are severa l nontri via l disputes concerning the few minutes prece ding Zach’s arrest, the significance of which play s no small r

ole in my decis ion to dissent. Howell called Zach into his office and questioned him about the girls’ accusa tions. How ell stated: “When que sti on ing Zach in the office, he had indicated t hat he was jo king ar

ound and t

he state ment was, You know h ow Rhys is.” Joint Appendix (“J.A.”) at 581 (Howell Dep.). Howell also testified that Zach confirmed the contents of the note, altho ugh Howe ll gave contradictory testimony about whether he ever saw the note or showe d it to Zach. Compare

J.A. at 594 (Howell Dep.) with J.A. at 296 (Zach Durbin Trial, Howell Test.) (“[T]hey [the girls] stated that Zach had written a note but I never was able to resurface the note.”).

For his part, Zach

disclaimed that

he had ma

de any threats. Zach stated in h

is depositi on that Rhys had been “joking around” with his mother, Gail Allen, when Rhys and Z ach

wer e discussing the Columbine incident with Allen several hours before Zach and Kay la’s telephone call. J.A. at 469-70. 30 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

The “joking arou

nd” consisted of Rhys asking his mother what she would do if he and Zach perpetra ted an act like the tragedy that befell Columbine, but it did not incl ude a ny indicationthat Zach or Rhy s intended to harm anyone

. Zach stated that he did not “joke around” with Rhys’s mother. The majority believe s that Za

ch infor med Howe ll a

b out Rhys’s “joking around.” However, Zac h’s deposition doe s n ot ind icat e that he told Howell that either he or Rhy s had been joking around with Rhys’s mother. His deposition testimony about his d

iscussion with Howe ll is as fol lows:
Q: Tell me what happened when y ou got to the office.

A: We went in Mr . Howell’ s office , and he c losed th e door, and Mr. H owell told me that there had been

a note circulating and three girls c ame to the office with the note a

nd told him that I was — me and Rhy s said we was going

to blow up the school.
Q: Do you know what he was talking about when he said that?

A: Iknew what he was talking about after he said a note w as cir culat ing.
Q: You knew

what thre e girls

he was ta lking ab out?

A: Yeah.
Q: What did y

ou say to that?

A: He just kept going on with the story an d the n — I

was li ke, no, that’s not true . And then he just ke p t goingon and then he asked me, he said, do you have anything to say, and then I

started telling him what really happened about me being at Rhys’s house and thenmy co nvers ation with Kayla, and the n that’sNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 31

when Jeff [Hayes] was like, “I’ve heard enough. Set down your books.”

J.A. at 473-74 (Durbin Dep.) (emphasis added). Zach stated clearly in his deposition that he never told Howell that he had joked with Kayla about

“doing something like the kids did at Columbine.” J.A. at 474.
During a second phone call with Stevens bef or e Haye s
e ntered Howell’s office, Hay

es reported that he had taken state me nts from three girls whom he found to be reputable, prom pting Stevens to

approve Zach’ s “arre st.” At som e point, Hay

es went in

to Howell ’s offic e, but it is not cl ear at what point duri

ng Howe ll’s questi oning of Zach t his occurred. It is a

lso uncer ta in w hether Hay

es, as the actual arresting officer, actually

heard Zach admit that he had made the threats, if Zac

h ever sa id such a t

h ing. Hayes did not corroborateHowell’s assertion that Zach admitted to making the threats. Furthermore, Hay es never asked Zach to re count his view of the day ’s event s. Hay es later stated: “I’m not

the

one that’s going to be investigating. I didn’t wa

nt him to say anything to me

. I ne

ver wan t the kid to s ay

any thing to me that, you know, I

might hav e t o testify ag ainst him or something like that. He did pr ofess his i nnocenc e to me.” Hayes Dep. at 35-36. After some undefined but brief period of time, duri

ng which Zach

tried toexculpate

himself, Hayes told Zach to set down

his bo oks, and then Haye s arrested Zach.

Rh ys was not involved

with any aspec

t of the investigation that took plac e at the school on Friday , April 23, as he was absent from school. Neither Hay es nor Stevens observed Rh ys or spoke with the girls ab out Rhy s. Rhy s’s name became entwined in these events only because of Kay

la’s note, as neithe

r Howell nor Za ch reca lle d that Rhy

s’s name came up in the conversation in Howell’s office. 32 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

5 Zach ca n a ssert a § 198 3 Fo urth A men dme nt claim against b oth Hayes and S tevens , unde r theor ies of d irect a nd s upe rvisory lia bility, whereas Rhys c an pu rsue his § 198 3 Fo urth A men dme nt cla im o nly against Stevens based upon supervisory liabil ity. Hayes arrested Zach and another prob ation officer, Bec ky Ma sters, arrested Rh ys; Stevens ordered the arrest o f both in her ca pac it y as t he su pervi sor of

both pr obati on officers. The super

vis or of a vi olat ing party maybe liable fo r that pa rty’s

v iol ati on of a third person ’s constitutional rights, if the su perviso r “encourag ed the spe cific incid ent o f mis conduct or i n some other way direc tly parti cipated i n it .” Bell amy v . Br adley , 729 F.2d 416 , 421 (6th Cir. 198 4). It is not di sput ed th at St evens “at lea st impl ici tl y aut

hori zed, approved or know ing ly acqui esced” in the detention of bo th students. Id. II. RHYS’S AND ZACH’S § 1983 CLAIMS

Rh ys and Zach assert two separa te § 1983 claims based uponalleged v iola tions of the ir Fourt h and Fou

rteenth Amendment

rights. I bel iev e that the genuine issues of material fact attendant to both claims requirethe reversal of the distri ct court ’s gra

nt of summa

ry judgmen t.

A. Th e Fourt h Amend ment Cl aims

Rec ognizing that all e

vidence and infe rences from th a t evidence must be taken in a light most favorable

to Rhys and Zach, I believe that it is patently clea r that there is a genuine i ssue of material fact concerning whe ther or not Hayes and St evens had prob able ca

use to ar rest them

. 5 Probable

cause
means the “fac ts and circumstances within the officer’s knowl edge that

are sufficient to warrant a prudent person, or
one of reasona ble caut ion, in believing, in the circumstances shown, that the su spect ha s committe d, is commit ti ng, or is about to commit an offense.” Criss v. City of Kent , 867 F.2d 259, 262 (6th Cir. 1988) (quot ing Michigan v. DeFillippo
, 443 U.S. 31, 37 (1979)). “The Fourth Amendment

. . . necessitates an inquir

y in to probab ilitie s , not certainty.” United States v. Strickland , 144 F.3d 4 1 2, 415 (6th Cir. 1998). In analy

zing an officer’s actions, we must look at the tota lity of the circumstances from a reasona ble officer’sNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 33

perspective at the time

of the ar rest so a s to avoid

the effect of hindsight bias. Klei n v. Long , 275 F.3d 544, 550 (6th Cir. 2001). The arr

esting o fficer

does not ne ed to demonstr ate that prima facie proof e xists be fore arresting a suspect, but the

o fficer’s underlying

motivation for the arrest must be based

onsomething more than mere suspicion. See United States v. Bennett , 905 F.2d 931, 934 (6th Cir. 1990).

Even though an officer does not have to sear ch for balancinge vide nce aft

er esta blishing that prob able ca

use existed, an officer must consider all evidence, including exculpatory

evidence, before making a probab l e cause determination. Of

fi ce rs ca nn ot ma ke “h as ty, unsubstantiated arrests with impunity.” Ahlers v. Schebil, 188 F.3d 365, 371 (6th Ci r. 19 99 ). No r c an th ey “ si mp ly t ur n a bl in d e ye towards potentially exculpatory evidence known to them.” Id. at 372. Furthermore, there can be no probable cause for an arrest when it is based upon an officer’s reliance on vague informat ion from a

source of untested

reliability. Wong Sun

v. U n ited States , 371 U.S. 471, 482 (1963). In gene ral, the question of proba

ble caus e is one for

the jury , unless it is clear that only one rea sonable determination is possible. Crockett v. Cumberland College , 316 F.3d 571, 581 (6th Cir. 2003).

1. Rhys ’s § 1983 Fo urth Am endment Claim A gains t Stevens
Considering all available evidence and inferenc es from that evidence in th e light most favora ble to Rhy

s, a rea sonable jury could conclude that

the facts and circumstances of which Stevens was aware did not justify Rhys’s arr

e st becau se Stevens relied bli ndly

upon Hay

es’s re commenda

tions, withoutconfirming that Hay es had tested the allegati ons of the three students, investigated the incident beyond a

ccepting Howell’ s versi on of the e vents, or even spo ken with Rh

ys. Compare Criss, 867 F.2d

at 262; Ahlers , 188 F.3d at 372. When Hay

es calle d Stevens, R hys was not at school, and Hayes’ s knowledge o f Rhy s’s poten tial involv ement ca

me 34 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

only thirdhan d (Hay es spoke w

ithHowell about Kay

la’s note, whichrecounted the alleged conver sation with Zach from the night before , during

which Rhy

s’s name was b riefly mentioned). Hayes

did nothing further to investigate Rhys’s involveme

nt, nor did

Stevens or

der him to

do so. Hay

es did notspeak to the gi rls, nor did he confirm Rhys’s involvement inthe threat. While the girls did believe that Zach ha d persona lly indicate d the ver

acity of his threat, no compara

ble evidence existedas to Rhy s. Th e o nl y ev id en ce li nk in g R hys to the threat was Kay

la’s note, whi ch Hay

es never saw, and Kayla’s statements, which H ayes never took. Bot

h of these

were tangen

tial piec es o f e vidence , as Kay la never actually spoke with Rhys, a fact that Hayes neve r uncovered.

One could conclude that it was impossible for S t evens to believe that prob able cause existed based up on the extr

emely limitedevidence gathered by H ayes, who ha

d negle cted to speak with or obs erve the

accuse d, to test the alleg ations o f the principal witnesses, or to investigate Rhy s’s involvement

more than superficially. H ayes relied on hearsay

information about a student who was not even in attendance in school and whosename became intertwi ned in this web of events on

ly because of Kay

la’s note . Hay

es then r elay ed this da

ta to Stevens. From that limited information, Stev en s authorized a detent ion. As the

Supreme Court has said, there can be no probable cause for an arrest where it is based upon an officer’s reliance on vague infor mation from a source of

un tes ted reliability. Wong Sun , 371 U.S. at 482. Conse q ue nt ly, I believe that there is a genuine issue of material fact

concerning whether Stevens had probable cause to order the arr est of Rhy

s.

2. Zach’s § 1983/F ou rth Am endment Claim A gainst Hayes and St evens

The circumst

ances su rroundin g Zac h’s arr est undoubtedly present a closer call, but ultimately

I be lieve th a t the districtNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 35

6 For si mpli cit

y’ s sa ke, Stev ens a nd Hayes are g rouped t og ether in this discussion, because both are liable for H ayes’s actions. court’s gr an t o f s um ma ry judg ment was in error. 6 Much of the same rationale that supports my r easoning regarding Rhys’s claim against Stevens applies here. Hayes a rrived at the school mist

akenly believing that the school was handling

animpending bomb threat
, a misunderstanding that he conveye d to Stevens. Rel ying solely on Howell’s own limitedinvestigation and Howell’s belief that the girls were “reputa ble and believable,” Hay es performed no a ddi tional investigation, foregoing an opportuni

ty to assess f or himself the girls’ credibility

and to discover t

hat at least one of the girls had a reputation for exagg eration.

A sharp differ ence be

tween Z ach’s a

nd Rhy s’s arre sts is that Ha yes di d a ct ua ll y sp ea k w it h Z ac h. Ha ye s had an opportuni ty to assess Zach’s behavior and his credibility, but Hayes decline d to hear

Zach’ s recoun

ting of e vents, ma in l y
o ut of a belief that this would protect Zach. This deprived Hayes of the ability to make a g

rounded determination that he had probabl e cause to arrest Zach. I do not endorse a wholesa le rule t hat la w enfor cement offic ials i nvest igati ng a crimeor a threat of a crime must alway s speak with the alleged perpetrator befo re d etermini ng that p robable cause exists, particu

larly when suf

ficient i nculpatory

evidenc e is apparent to the arresting officer. See Klein v. Long , 275 F.3d 544, 551 (6th Cir . 2001) (h olding th at offic ers had p

robable

cause to arre st without questioning the suspect when officers responded

to a dom es tic violen

ce 911 c all and immediately

sawa visibly

upset and bleeding woman who told the officers that her husband had phy sically har med her). N onethele ss, when sufficient inc ulp atory

evidenc e is not imme diately obvious, an arre sting of

ficer h as done li

ttle to investig ate the threats allege dly made by the a

ccused, and

the officer has not spokenwith the princ ipal accusers, the determination of probable cause is undermined. 36 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

While Howell te stified that Zac h admitted

making threats agains tKay

la, but tha

t Zach was onl y “

joking a round” in making such intimi dations, Z ach den ies ever having ma d e suchthreats. The existence of this factual dispute hi ghligh ts two problems with th e majority’s holding. F irst, Zach disputes that he e

ver admi tted thre atening Kay

la. Za ch told Howell that in his c onversa

tion with Ka

yla he me rely recount e d the details of

an innocu

ous conve

rsation w ith Rhys’s mother. I

n his depos ition, Za

ch decla red that he did notconfirm the verac ity o f the ripp ed note’ s content s to Howell. It is not for this court to deci d e whether Zach or Howell is more believable; rather, we must assume that Zach’s story

is true for the purposes of reviewing the district court’s grant o f summary

judgmen t. Second , even if

Zach did make such an admission, there is no evidence that Hay es hear d it, and thu s it could not have informed h is probab le

cause determination. As the a rresting officer, it is Hay es’s probable cause calculus, and n ot Howell’s, with which we should be conc erned. T

he ma jo rity appear

s to focus on Howell’s determination of the trustworthiness of the three girls, but it is Ha

ye s’s proba

ble caus e determinati on, not Howell’ s, that is the

focus of this case . Neit

her How ell nor Hayes suggest that

Zach a dmitted to having ma

de the thr eats inHay es’s pre sence or

that H owell told Hayes about the supposed “confession” before Hay es decided to arrest Zach.

There is no doubt thatHayes wa s faced with a difficult and delicate choice. He arri

ved at the

school a nd w as told by Vice-Principal Howell

that Zach, who had a history of pr ior, albeit nonviolent, juve nile delinquency, ha d threatened several st ude nts two days after

the Columbine disaster. However, Hay

es, as a probation

officer, had little experience in inv estigating crimes or potential crimes. See Hay es D ep

. at 25 (“We don’t

norma lly inve stig ate t

hing s. We are asked to act on an

emergency

basis . . . . That’s why I

wanted to see what these statement s said, to see if it was, you know, possibly be liev able, and then we would call on law enforcement

to investigate it . . . .”); see also United States v.Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 37

Guzman
, 75 F.3d 1090, 1096 (6th Cir.), cert. denied, 519 U.S. 906 (1 996 ) (“Law enf

orcement officers naturally reach conclusions based on their training and experience.”) . He did notask Howell to describe in more depth the chain of events that led to Zach’s emerge

ncy remova

l. He did not

inquire of Howell about the

bases for Howell ’s deter mi natio n that the girls were te llin g t he tr

uth. He did not interview any of the stu de nts involved, either the girls or Zach, to make his own assessment

of their reliability. He did not investiga te whether Zach even had access to weapons that would al low him to carry through the alleged threat. Hayes did not make another attempt to contact Zach ’s pare

nts or to keep Zach at the school until his parents could be reached, despite the fact that there was no suggestion that Zach would have

engag ed in

any violence waiting for

his pare nts at the s chool. Th

is was not a situation in which H owell or a nother me

mber of h

is st aff observed Zach make a threat

or commit any act

of violence or inwhich mult

iple war ning sig ns abou t Zach’s behavior and history made his a

lleged threat more like ly. By

analog y, i t would surprise the rea sonable

person if the police could have probable cause to arrest him or her

ba se d s ol el y up on he ar sa y, where no observable evidence supported an alleg ation of wrongdoing

and the police failed to question either the

accuser or the accused, but instead relied on the statement

of a t hi rd pa rt y to wh om th e a cc us er re co un te d t he he ar sa y.

Our decision in Willia ms v. Ell ing ton , 936 F.2d

881 (6th Cir. 1991), provides som e contrast about the level of investigation

that must take place before school officials c an act, although the legal question in Willia ms concerned probable cause to search as opposed to prob able cause to

arrest

. See New Jersey v. T.L.O. , 469 U.S. 325, 341-42 (1985) (establishing that a student search “does not requ ir e strict adherence to the requirement that sea rches be based on p robable ca us e” an d s ta ti ng th at a s ea rc h w il l s at is fy a “reasonablene ss” req

u irement “

when the re are reasona ble grounds for suspectingthat the search will turn up evidence” of an i ll ega li ty). In Williams, the plain tiff, a te enage

girl, 38 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

claimed that her high school violated her Fourth Amendment rightsby strip searc

hing her without pr

obable c ause as part of

aninvestigation

into allegations that she had been consuming drugs at the school. Id. at 882. A f ellow stud

ent first alerted the p rinc ipal to the problem by claiming that she had witnessed the plaintiff and a friend ingesting drug s in c l ass. The principal ver ifi ed that the accusing student had no animosity towards the p la intiff, ruling out any ulter ior motives of the accuser, and then lau nched a multiday investigation

of the plaintiff. He approached sever al of the plaintiff’s teachers, who corroborated he rstrange behavior and reporte d a note that the pla intiff wr ote in w hich she referred to drug use. The princ ipal also collected information fromthe school’s guidancecounselor, the plaintiff’s aunt, and the friend’s father, all of whom expressed concer nthat b oth st udents may

have be en taking

drugs. The princ ipal acte d only when the

student wh

o first ma

de th e al legati on aga

in approached

him and complained for the second time that the plaintiff was ingesting drugs in class. Id. at 883.

We held that

reasona ble suspic ion — the st

andard s et forth in New Jersey v. T.L.O. — did exist for the stri p search in William s

. Based upon T.L.O. ’s analogyto the reasonablesu spicion standard set forth in Terry v. O hio , 392 U.S. 1 (1968), we wrote , “We can correl ate the a

llegat io ns o f a student, implicating a fellow st udent in un

lawful a ctivity, to t he case of an informant’s tip,” which by itself meets the threshol d for reasonable suspicion. William s , 936 F.2d at 888. Yet, when “there is co ncern t hat students will be

mo tivated by malice a

nd false ly im

plicate other stud

ents in wrongd oing, that ty

pe of situation wou

ld be analo gous to[an]

anon ymou s tip,” whic

h does not e stablish r easonab le suspicion in the absence of further investigation. Id. at 888- 89. We upheld the lower cou rt’s d ismissal of the plaintiff’s suit in Williams because in a ddi tion to the complaining student’s “tip,” which the principal determined was not borne of malice, the principal uncovered strong evidenc e during

hisNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 39

7 Bec ause I believe that

Rhys’s and Zach’s Fourth Amendment cl aim s shou ld proce e d beyond the summary judgment stage, Hayes’s and Steve ns’s qualified immu nity argum ents mu st be tak en into acco unt. Pub lic officers who perf orm discretionary f

unctions “general ly are shiel ded from lia bility for civil damages ins ofar as t heir conduct does not viol ate clearly es tablishe d statuto ry or co nstitutiona l rights of wh ic h a

reas ona ble person woul d have known. ” Ha rlow v. Fitzg erald , 4 57 U. S

. 800, 818 (19 82)

. The appli cabil ity of qual if ied i mmunit

y depen ds on: 1) whether the f acts v iewed i n a l ight mo st favor able to the pla intiffs dem onstra te that

a consti tut ional violation occu r red; 2) whether the ensuing investigation, including the sus pi cions of the plaintiff ’s family that she w as using

drugs.
Juxtaposing the events in Williams with the f acts of th is

casedemonstr

ates the in sufficiency

of the investigation of Zach’s threat. Both Howell and Hay es s atisfied themselves that neither Kayla nor the

other girls leveled these accusations agains tZach o

ut of malic e; accordingly , Kay la’s all eg ations may be best analogized to an informant’s tip. Whi le these allegations may have c

reated a rea son able suspicion for Howell or Haye s to search Zach for we apons, without further investigation, they

did not pre sent “f

acts and circumstances

. . . sufficient to warrant a prudent person, or one of

reasona ble caution, inbelieving, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Criss, 867 F.2d a t 2 62. Unlike the principal in Williams , Hayes di d not enga g e in any fur ther investigation

of Zac h or his thr

eats. Ha ye s did not ne cessar

ily need to spend days inve stig ating the incident before concludingthat he had

probable cause, but Hay

es could have conducted

at least some minimal level of inves tigation in a short period of time that afternoon. Taking into account the totality of all the facts and circumstances of whichHayes wa s aware, t here ar e enoug h factua l disputes t

o permit a

reasona ble jury to co nclud e that Hayes, and Stev ens th rough her su pe rv is or y ro le, violated Zach’s Fourth Amendment rights by a

rresting him without probable cause. 7 40 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

viol ati on invol ved a clear ly es tabli shed right of wh ich a re ason able offi cer woul d have known; and 3) whether th e plain tif f adduced suf

fici ent f ac t s to pro ve that the officer’s a ctions w ere un reaso nab le in light of th e consti tut ional right. Feathers v. Aey , 319 F. 3d 843, 848 (6th Cir. 2003). I do not think it can presently be determined whether Hayes and Stevens

are enti tled t o qualif

ied immuni ty becau se “[s]um mary judgmen t i s not app rop riate if t here is a genuine f actual dispute r elating t o whether the defen dant s committ ed acts t hat al legedl y viol ated cl early establ ished rights.” Dickerson v. McClell an , 101 F.3d 115 1, 11 58 ( 6th Cir. 19 96) ; see also Flagner

v. Wi lki nson , 241 F. 3d 475, 481 (6th Cir. 2001) (“Summary judgment is not ap pro priate if there is a genuine f

actual dispute r elating to whether

the def endants co m mitted acts that a lleged ly violated clearly established ri ghts.”) ( quotation omitted).

8 U nder Ohio state law, a s chool board m ay suspend any student up to ten da ys, but it mu st give stud ents written notice of the inten tion to suspend and m ust pro vide stu den ts with an op portuni ty t o appear at an inform al hearing and challenge t he reason for the int ended suspension. See Ohio Rev. Code § 33 13.66(A) (1)- (2). The Cambri dge Board of Educat ion establ ished i ts own s uspensi on and removal g uideli nes under the auspices of § 3313.66(A). Under the se pr ocedure s, a st udent may be B. Fou rteent h Amend ment Cl aims

The majorit

y also errs in its determination that summary judgment was proper as to the § 1983 Fourteenth Amendment claims. The Fourteenth Amendment’s guara ntee of procedural due process require s that, for a suspension of no

more than t en days, a school a dministration give a student notice of the charge(s) ag ainst him, an explanation of t he

e vide nce underly

ing those charg es, and a

n opportun

ity t o attend a hearing during which the studen t can pre sent a defense. Goss v. Lopez , 419 U.S. 5 65, 581 (1 975); see also Seal v. Morgan , 229 F.3d 567, 574 (6th Cir. 2000) (citing Goss for principle tha

t students cannot be suspended without

anopportunity for a hea

ring). In g eneral, the hearin g, which

can be informal, should occur before the student is removed fromthe sc hool , alth ough this is not necessary for a procedure to pass constitutional muster. Buchananv. City of Bolivar , 99 F.3d 1352, 1359(6th Cir . 1 996). 8 The par ties chie flyNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 41

suspended by the Superintendent or a principal for up t o ten days so long as there is notice of and opportunity f or a preliminary hearing before the

sus pensi on is meted out. Dur ing this hea ring the stu den t must ha ve a “full opport u nity” to state why he or she should not be suspended. However, this prelim inary he aring is no t require d if “a cle ar and prese nt danger exists.” W ithin one schoo l day after the suspension, the p rincipal must notify the student ’s parent s about the reas on for

the sus pensi on and n otify them of their right t o appeal. Then, a student may file a written a ppe al to the Superi ntendent

with in f ive day s. The Superi ntendent can upho ld the suspension, reduce it, or rev erse it co mple tely, but if he c hoo ses to mainta in the suspension, the student t hen has the opport unity further to appe al the suspension to the B oard o f Educa tion within five days. Ad ditiona lly, fo r “e mergency r emoval,” a principal must

provide a hearing concerning the removal “ [a]s s oon as pract icable afte r a removal in excess of twenty -four (2 4 ) cl ock hour s but wit hin thr ee (3) school days.” J.A. at

348 (Cam bridge Bd. of Educ . Procedures). disagree over whether either student actually was

suspended and notwhether

either st udent re ceived a

dequate notice. The defend ants do not contest the lack of notice because they argue th at th e p ar en ts of

Rh ys and Zach voluntarily kept them froms c hool durin

g the te n day s they

were a lleged ly suspended. Because I

would hold that a gen

uine dis pute of material fact exists regarding whether or not the school actually suspended the two stud ents, I would reverse the district c ourt.
1. Rhys
Taking the evidence in a light most favorab l e to Rhys, summary judgment should not

have been granted. The majority points t o some pie ces of e vidence that cut a

gainst Rhys’s claim. Rhys never received any

paperwork regarding

a suspension, a fact that

Howell and Lodge latc

h onto as proof that no suspension ever existed. Additionally, Rhy s’s mother statedt hat part

of the re ason for

Rhy s’s abse

nce was h e r reluctance to expose him to any backlash f rom h is peers

. However, when one

views the

evidenc e in a lig

ht most favora ble to Rhys , as we must, genuine disputes of material 42 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

fact become evident. The absence of an y p aperwork regarding Rhy s’s suspe

nsion does

not concl

usively sugge st tha tno suspen sion existed , partic ularly given H owell ’ s inconsistenttestimony re gardi ng both the existence of suspension paperwo rk andhis intent to suspend the two students. Furthermore, Rhys’s mother did not keep Rhy s out of school sol ely

because she alone fe ared a b acklash agains t Rhy s; the princ ipal, Mrs. Smith, advised her to keep Rhys out of school. I t seems do

ubtful tha t the princ ipal o f the scho ol would advocate a student missing ten days of school or e

ven tolera te a st

udent missing such a long period of time in the absence of some formal or informal suspension.

2. Zach

Zach presents even more evidence of a ge nuine factual dispute regar din g the existence of a suspension. Bobbi LaCr oss, h is m other, never received officia l notice of the suspension, yet

on April 26, Howell made Zach sign a pa per regarding the suspe

nsion and t

old La Cr o ss “that Zach was goingto be suspe

nded; but if

he was found not guilty , then the suspension w ould b e cance led.” J.A. at 617 (LaCross Dep.). LaCross asked Howell about appealing the suspensi on, andhe responded that he would mail her the papers. After f

ail ing to receive the papers, L aCross called Lodge severa

l times to complain; her conv ersation s with him suggested that Lod ge had seen the suspension papers and was frustr atedthat LaCross had not obtained them y et. Upon finally receiving the p apers, long after the suspension period had ended, LaCross tried to appea l, only to be told that there

was nothing t

o appea l becaus e no suspension had ever issued. This sequenc e of eve

nts crea tes a fa ctual disp

u te about whether the school officials either suspended Rhy s and Zach withoutnotice or constructively suspended them, by telling the ir pare nts that they were suspended, but not moving through the forma

l suspensi on proce ss.Nos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 43

The majority also reasons that summary judgment was proper because even ass uming tha

t a suspension existed, the school satisfied

the Goss due process requirements by giving Zach proper notice, an explanation of the evidence supporting the charge, and

an opportunity for Z ach to respond. Maj. Op. at 20-22. The majorit

y r eaches this conc lu sion b ased upon the brief c onversa

tion Zac h and How ell had in

Howell ’ s office shortly before

Zach was a rrested. I ca

nnot concur for two reasons

. First , whatever the limited notice and opp ortunit

y for objection given to Zach, it occur red in the contex t of Zach’s emerg ency re moval, not his alleged suspension. Howell questioned Zach to det ermine whether Za chshould be e

merge ncy removed

from the s chool. Emergency

removal is different

than suspension; the former involves an immediate, limited duration expulsion f rom school, whereas the latter results in a longer a bsence from school. See J.A. at 348 (Cambridge Bd. of Educ. Procedures). While Howell

may have g iven Za

ch the re quired pr

ocess wit h regard to the emergency

removal, the emergency removal reached its end point before Zach learned of his ten-day

s us pension. Assuming , as we mu st, that Howell act ually suspended

Zach conditioned upon the result of Zac h’s trial
, Howell afforded Zach no opportunity to reviewthe evidence

or respond t

o the cha

rges that prompte d t he ten-day suspensi on. Th e purposes of Goss would be defeated if a school were pe

rmitted to

in stitu te multiple suspension procee dings agains t a st

udent, ev en if bas ed upon th e same incident
, but only allowed the student to defend him or herself

once. Second, there is a factual dispute ove r how much of an opportuni ty Zach had to respond to the charges and evide nce brought agains t him in

the emergency

removal “proceeding.” While Howell suggests that Zac h had a ch ance torespond and admitte d to making

threats, Zach presents

a completely different recollection of the events of that afternoon. Z ach stated inhis deposition that he denie d ever ma king the threats to Kayla. The major

ity again assumes, as it does throughout 44 Williams et al. v. Cambridge Bd. of Educ . et al. Nos. 02-3200/3207

its analysis, that Howell’s testimon y a bout Zach’s “confession” is an accurate descr ip tion of wha

t actuall y occurred, bu t t hi s p re su mp ti on tu rn s t he su mm ar y j udgm ent standard o n its he ad; we must assume, for purposes of summary judgmen t, that Z ach’s s tory, not Howell’s, is the correct one. Zach claimed

that Howe ll did not g ive him much of an opportunity to defend himself, be cause Hay es arrested Zach before he could fully explain. While an

“informal giveand-take betwee n students and discip linarian,” Goss , 419 U.S. at 584, may constitute enoug h proce ss to sa ti sf

y Goss , the parties dispute precisely how muc h informal conversation occurred between Zach

and Howell. It is the place of the ju ry, and not this court, t o reconcile these conflicting testimonies regarding whether

Zach had enoug

h of an op

portunity to defend hi ms el f t o s at is fy Goss . Consequently, I do not agree that the district court should have granted summary judgment to the def endants.

III. CONCL USION

The issue presented to th is court is not whether Rhys and Zach should ulti

ma te ly p revail on the merits in their action agains tthe defendants. The issue is whether, taking all the evidence in the record and the inferences from that evidence inthe light most favorable to Rhy s and Zac h, genuine disputes of material fact

exist that wo

uld permit

a reasonable jury to find in their fav or. Where as the ma jorit y assum es facts to be true that are actually disputed, I believe that genuine is su es of

ma te ri al fa ct su rr ou nd Rh ys ’s Fou rth Amendment claim against Steven s, Zach’s Four th Amendment

claims against both Hay

es and Stevens, a

nd both students’ Fourteenth Amendment claims against Howell and Lod ge. Th e district court thus erred in granting the defenda nts’ motion for summary judgme nt. The schoo l
, police, and pr obati on off

icial s faced excru ciati ngl y di fficult decisions amidst the fear-drenched penumbra of Columbine, butinthe presence of genuine issues of material fact, it is the tas k of the fact-finder to evaluate the sig nificance of thes eNos. 02-3200/3207 Williams et al. v. Cambridge Bd. of Educ . et al. 45

contextual factors to the determination of probable cause a nd the decision to suspe nd the students. For these reasons, I respectfully

dissent.