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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0169P (6th Cir.)

File Name: 04a0169p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RHYS WILLIAMS, a minor, by

his mother and next friend,

Gail Allen, et al.; GAIL

ALLEN; DAVID ALLEN,

Plaintiffs-Appellants

(02-3200),

ZACHARY DURBIN, a minor;

BOBBI LACROSS,

Plaintiffs-Appellants

(02-3207),

v.

CAMBRIDGE BOARD OF

EDUCATION, et al.,

Defendants-Appellees.

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Nos. 02-3200/3207

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 00-00388—Algenon L. Marbley, 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

Before: DAUGHTREY, MOORE, and SUTTON, Circuit

Judges. 

_________________

COUNSEL

ARGUED: James D. McNamara, Columbus, Ohio, Mark E.

Jurkovac, Columbus, Ohio, for Appellants. Brian M. Zets,

SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, Mark

D. Landes, ISAAC, BRANT, LEDMAN & TEETOR,

Columbus, Ohio, Richard W. Ross, MEANS, BICHIMER,

BURKHOLDER & BAKER CO., Columbus, Ohio, for

Appellee. ON BRIEF: James D. McNamara, Columbus,

Ohio, Mark E. Jurkovac, Rick J. Abraham, Columbus, Ohio,

for Appellants. Brian M. Zets, SCHOTTENSTEIN, ZOX &

DUNN, Columbus, Ohio, Mark D. Landes, John S. Higgins,

ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio,

Richard W. Ross, MEANS, BICHIMER, BURKHOLDER &

BAKER CO., Columbus, Ohio, for Appellee.

SUTTON, J., delivered the opinion of the court, in which

DAUGHTREY, J., joined. MOORE, J. (pp. 25-45), delivered

a separate opinion dissenting in part and concurring in part.

_________________

OPINION

_________________

SUTTON, Circuit Judge. On April 20, 1999, fourteen

students and one teacher were killed at Columbine High

School in Littleton, Colorado. Two students at the school, we

eventually learned, were responsible for the killing spree.

On Friday, April 23, 1999, three days after Columbine, a

trio of students at Cambridge Junior High School in

Cambridge, Ohio reported to the Vice-Principal of the school
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3

that Rhys Williams and Zach Durbin planned to commit acts

of violence at the school. Rhys and Zach had prior criminal

records and both were then on juvenile probation. After

interviewing the three students, after takingwritten statements

from each of them, after interviewing Zach Durbin (the only

one of the two boys at school that day) and after consulting

with probation officers, school officials initiated “emergency

remov[al]” proceedings against the two students. As a result,

juvenile parole officers took both students into 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 days, and they did not return to school

for ten days in Zach’s case and for several days in Rhys’s

case. According to school officials, the boys stayed home

through voluntary decisions of their parents. According to the

boys’ parents, the school suspended them for these periods of

time. The juvenile prosecutor ultimately did not file charges

against Rhys Williams, but he did file an aggravated

menacing charge against Zach Durbin. In September 1999,

Zach was acquitted of the charge.

In the aftermath of the arrests, the boys and their parents

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

with several state-law claims) against the relevant school

officials and law enforcement officers. In particular, they

contended (1) that the local officials failed to establish

probable cause for the arrests in violation of the Fourth

Amendment and (2) that the two boys received school

suspensions without due process in violation of the

Fourteenth Amendment. The district court rejected these

claims and several others as a matter of law. We affirm.

I.

A. Events Preceding the April 23rd Arrest

In April 1999, Rhys Williams and Zach Durbin were

fourteen years old and were in the eighth grade at Cambridge

4 Williams et al. v. Cambridge

Bd. of Educ. et al.

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Junior High School. Both students had previous criminal

problems and were on juvenile probation in April 1999. Rhys

also had been disciplined by the school for several incidents

of threatening behavior.

On Wednesday, April 21, 1999, one day after the

Columbine tragedy, the two boys went to Rhys’s house.

While there, they watched television coverage of the

Columbine shootings with Rhys’s mother, Gail Allen. At

some point that afternoon, Rhys asked his mother what she

would do if Rhys and Zach did “something like that.” JA at

469 (Durbin Dep.).

Later that night Zach spoke with a classmate, Kayla

Hollins, on the telephone. According to Zach, he merely told

Kayla about his conversation with Rhys and Gail Allen earlier

in the day. According to Kayla, Zach told her that he was

“getting sick of the way things were going” and was planning

on bringing a gun to school or bombing the school. JA at 252

(Hollins Test.). Kayla alleged that Zach also said he would

kill the “preps” first, JA at 147 (Hollins Recorded

Statement)—meaning that he would kill Sadie LePage and

that Kayla would be “one of the first to go,” JA at 532

(Hollins Dep. I)—but that he would not hurt Katie Spittle

because he liked her, JA at 151 (Hollins Written Statement).

B. Friday, April 23, 1999

1. Zach Durbin

On Friday morning of that week, two days after her

conversation with Zach, Kayla wrote a note to Sadie LePage,

saying that Zach “was going to bring a gun to school and

shoot us all because he was sick of bitchy preps.” JA at 152

(LePage Written Statement). Sadie showed the note to Katie

Spittle, another classmate. During the lunch period, Sadie

and Katie asked Zach whether the contents of the note were

true, and he allegedly told them they were, a point that Zach
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5

disputes. After lunch, Sadie and Katie told school officials

about the threat. They first told Julie Orsini, the guidance

counselor, about the note that Kayla had written. Orsini

notified Vice-Principal William Howell about the matter and

relayed her impression that the girls were “visibly shaken up

[and] . . . feeling threatened.” JA at 576 (Howell Dep.).

Howell met with Sadie and Katie individually, and later

called Kayla to his office as well. All three girls spoke to

Howell about what had happened, then wrote statements in

which they described the events of that morning and their

interactions with Zach. In Kayla’s statement, she said the

following:

I talked to Zac on the phone Wednesday night & he said

he was sick of everybody, everyone was getting on his

nerves & he & Rhys Williams were talking about

bringing a gun to school & he was very serious about the

matter[.] [H]is other option was planting a bomb &

taking everyone out on the first (one) shot. But he had

made very clear he would spare Katie Spittle because he

liked her. This morning I [said]to Sadie LePage I had

spoken to Zac & she asked what about & that is when I

wrote Sadie telling her about our (mine & Zac’s)

conversation. Half of the note is now gone.

Id.

Sadie said the following in her statement: 

I was sitting in first period today and Kayla Hollins

wrote me a note that said Zac Durbin was going to bring

a gun to school and shoot us all because he was sick of

bitchy preps and he was going to start with me because

he hated me so much. Then it said that he said it would

just be easier to plant a bomb because he could get us all

at once. Then in band (second period) I showed Katie

Spittle the note because I was scared and she took the

note to him at lunch and he said that it was really true,

6 Williams et al. v. Cambridge

Bd. of Educ. et al.

Nos. 02-3200/3207

that he was talking to Rhys and they were seriously

thinking about it. Zac hates me so much because 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 following in her statement:

This morning in 2nd period (Band) Sadie LePage showed

me the note. At lunch I asked Zac if it was really true,

and he said yes. He said him and Rhys were talking

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 after obtaining

their statements, Howell contacted Assistant Superintendent

James Spisak to inform him of the situation and to begin the

emergency removal process with respect to Zach. Spisak

agreed that Zach should be removed from the school under

§ 3313.66 of the Ohio Revised Code because of the

“continuing danger” he posed. In an effort to release Zach to

an adult, Howell initially tried to reach Zach’s mother, Bobbi

LaCross, but she was unavailable. He then called Zach’s

probation officer, Jeffrey Hayes, who came to the school. At

roughly the same time, Howell notified Officer Randy LePage

and Detective Brian Harbin of the City of Cambridge Police

Department about the matter.

When Hayes arrived at the school, Howell briefed him

about the situation, told him that the police had been notified

and showed him the three girls’ written statements. Hayes

asked Howell “whether these [girls] were reputable students”

because he wanted to determine “whether it was somebody

trying to get even with Zach or that type of thing.” JA at 509

(Hayes Dep.). Howell confirmed the credibility of the girls’
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7

statements on the basis of their reputations as students. Hayes

then called his supervisor, Jean Stevens, the Chief Probation

Officer of Guernsey County, alerting her to the alleged

threats, the girls’ statements supporting them, the girls’

reputations with Howell, the credibility of their statements

from Howell’s perspective, and the possible police

investigation. Hayes told Stevens that Rhys was not at school

that day and that police were looking for him. He then

recommended to her that Zach be removed from the school.

Stevens authorized Hayes to remove Zach from the school

and to take him into detention at the Guernsey County

Juvenile Probation Department. 

At this point, Howell removed Zach from study hall and

told him about the girls’ allegations. In response, Zach

confirmed that he knew about the note and acknowledged that

Rhys (in his presence) had been “joking around” when talking

to Gail Allen about the incident at Columbine, JA at 581

(Howell Dep.), but denied the rest of Howell’s accusations,

JA at 473 (Durbin Dep.). After the interview, Howell asked

Hayes to escort Zach from the school. While Hayes claims

that he did not arrest Zach at this point, he acknowledges that

Zach was not at liberty to leave and that he handcuffed Zach

in conformity with the probation department’s policies.

Hayes signed Zach out of the school late Friday afternoon and

escorted him to the Guernsey County Probation Department

in Byesville. Upon arrival, Zach was shackled and

handcuffed to a chair. Eventually, Zach was driven to the

Jefferson County Juvenile Detention Facility in Steubenville,

where he remained over the weekend until he returned to

Guernsey County for his Juvenile Court appearance on

Monday, April 26th. 

2. Rhys Williams

Rhys was not involved with the investigation that took

place at the school on Friday, April 23rd, because he was not

in school that day. Stevens claims that neither she nor Hayes

8 Williams et al. v. Cambridge

Bd. of Educ. et al.

Nos. 02-3200/3207

ordered Rhys’s arrest, although she admitted that she

authorized his detention in a phone call with a Cambridge

police officer. Several Cambridge police officers arrived at

Rhys’s house on Friday afternoon and informed his mother,

Gail Allen, that he had been implicated in a bomb threat. In

response, Allen called the probation department. Becky

Masters, the probation officer with whom she spoke,

confirmed the police officers’ report and asked Allen to bring

Rhys to the department. Allen brought Rhys to the probation

department in Byesville, where Masters and a transportation

officer handcuffed and shackled Rhys. He was eventually

driven with Zach to Steubenville, held for the weekend and

returned to Guernsey County for an appearance in Juvenile

Court on Monday, April 26th.

3. City of Cambridge Police Officers

Captain Randy LePage and Detective Brian Harbin of the

City of Cambridge Police Department received a call from

Howell on the afternoon of April 23rd. By the time they

arrived at the school, however, Hayes and Zach had already

departed. Because Sadie was Captain LePage’s daughter,

LePage recused himself from any further involvement and

Harbin assumed control of the investigation. Harbin collected

the written statements 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 ordered Rhys’s apprehension, but Harbin was in

charge of the investigation when Cambridge Police Officers

arrived at Rhys’s home. 

C. Monday, April 26th, 1999

On Monday, April 26th, the earliest day they could appear

in juvenile court, Zach and Rhys were returned to Guernsey

County. At the courthouse, they were separately interviewed

by Harbin and later appeared together before Judge
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Urbanowicz of the Guernsey County Court of Common Pleas.

Rhys and Zach both were placed under house arrest for a few

days at the end of the hearing. Zach was also electronically

monitored as part of his house arrest. Later that week, Harbin

transferred the results of his investigation to Roy Morris, the

Guernsey County Juvenile Prosecutor. Morris reviewed the

information and charged Zach with making “menacing

threats” in violation of Ohio Revised Code § 2903.21.

Adhering to the guidelines for Guernsey County juvenile

proceedings, 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 charges against

Rhys because he believed probable cause did 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 Issue

Rhys and Zach stayed home from school for a period of

time following their appearance in juvenile court. Although

their parents allege that Rhys and Zach were suspended, the

school disputes the point, claiming it never suspended them.

Gail Allen acknowledges that she never received official

papers concerning a suspension for Rhys, noting that she kept

him home from school in excess of a week because she

wanted to shield him from a potential backlash by his peers

and because she accepted the advice of the school principal

who thought it would be in his best interests as a matter of

safety.

Bobbi LaCross alleges that Howell asked Zach to sign a

paper concerning his suspension at the courthouse, then told

her that he planned to suspend Zach if he was convicted of the

aggravated menacing charge. LaCross allegedly asked

Howell about the possibility of appealing any suspension, to

which he responded that he would mail her the necessary

papers. In his brief on appeal, however, Howell states that a

10 Williams et al. v. Cambridge

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Nos. 02-3200/3207

“Notice of Suspension” for Zach was prepared on April 26th

in accordance with Ohio Revised Code § 3313.66, but the

school never took action on the notice, and it never officially

suspended him. 

When she did not receive any suspension papers, LaCross

allegedly called Superintendent Thomas Lodge to inquire

about receiving the papers and about the appeal process. She

says that Lodge told her “he had got the suspension papers

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 and that he told

LaCross that since no suspension was yet filed, “there’s

nothing to appeal at this point in time.” JA at 638 (Lodge

Dep.). LaCross persisted and alleges that on May 21, 1999,

she was able to obtain the original suspension papers. She

attempted to file a written appeal on May 24, 1999, but did

not receive a hearing, as the school maintained there was no

initial suspension from which she could appeal. Howell and

Lodge note that a copy of the “Notice of Suspension” was

indeed mailed to LaCross in late May 1999, but that without

further action the document alone did not constitute an out-ofschool suspension. 

E. Procedural History

On March 29, 2000, Zach and his mother (Bobbi LaCross)

and Rhys and his parents (Gail and David Allen) filed this

lawsuit. They asserted a variety of federal-law

claims—violation of the boys’ First, Fourth and Fourteenth

Amendment rights under § 1983, the existence of city and

school customs that caused these constitutional violations and

the presence of a civil conspiracy to violate these rights. And

they asserted a variety of state-law claims—malicious

prosecution, false imprisonment, false arrest, defamation and

intentional infliction of emotional distress. 
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On September 20, 2001, all of the defendants filed motions

for summary judgment, which the district court granted.

First, the court determined that the defendants had probable

cause to detain Rhys and Zach and accordingly rejected their

Fourth Amendment claims. Second, the court determined that

neither Rhys nor Zach was actually suspended from school

and accordingly rejected their Fourteenth Amendment claims.

Third, the court concluded that Zach and Rhys could not

substantiate their conspiracy claim. Fourth, the court rejected

the state false arrest and false imprisonment claims because

Rhys and Zach could not prove that their detentions were

unlawful. Fifth, the court rejected the state law claim of

malicious prosecution because Harbin had reasonable

suspicion that Zach had engaged in menacing. Finally, the

court rejected the other claims because Rhys and Zach had

failed to respond to the defendants’ summary-judgment

motion on them. 

On appeal, Rhys and Zach challenge the district court’s

resolution of their Fourth and Fourteenth Amendment claims.

In addition, Rhys appeals his false arrest and false

imprisonment claims, and Zach appeals his maliciousprosecution claim. 

II.

The customary rules for reviewing a summary-judgment

decision apply. We give de novo review to the district court’s

decision. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490

(6th Cir. 2002). A decision granting summary judgment is

proper where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). And in considering such motions, we give

all reasonable factual inferences to the nonmoving party.

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 officials who perform discretionary functions

“generally are shielded 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). Two questions thus arise in this context: Did the

government officials violate a constitutional guarantee? And,

if so, did the violation involve a clearly-established

constitutional right of which a reasonable officer would have

been aware? See Saucier v. Katz, 533 U.S. 194, 201 (2001).

In the absence of an affirmative answer to both questions, the

constitutional tort claims must be dismissed as a matter of

law. 

A. Fourth Amendment Claim

The parties share common ground with respect to the

Fourth Amendment’s requirements in this area. As a general

rule, 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. See Beck v.

Ohio, 379 U.S. 89, 91 (1964). Probable cause means the

“facts and circumstances within the officer’s knowledge that

are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to

commit an offense.” Michigan v. DeFillipo, 443 U.S. 31, 37

(1979). Once “probable cause is established,” this Court has

added, 

an officer is under no duty to investigate further or to

look for additional evidence which may exculpate the

accused. In fact, law enforcement “is under no

obligation to give any credence to a suspect’s story [or

alibi] nor should a plausible explanation in any sense

require the officer to forego arrest pending further

investigation if the facts as initially discovered provide

probable cause.” 
Nos. 02-3200/3207 Williams et al. v. Cambridge

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Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (citations

omitted). At the same time, officers must consider the totality

of the evidence “known to them” when considering probable

cause, and in cases where they have both inculpatory and

exculpatory evidence they must not ignore the exculpatory

evidence in order to find probable cause. Id. at 372. A “mere

suspicion” of criminality will not suffice. United States v.

Harris, 255 F.3d 288, 292 (6th Cir. 2001).

The rub in this case is whether probation officers Hayes and

Stevens—the two primary defendants with respect to this

claim—had probable cause to take Zach and Rhys into

custody on Friday, April 23, 1999. In the district court’s

view, the “information conveyed in the girls’ written

statements was sufficient for the Defendants to have had more

than a ‘mere suspicion’ of Williams’ and Durbin’s alleged

criminal activities.” Williams v. Cambridge Bd. of Educ., 186

F. Supp. 2d 808, 816 (S.D. Ohio 2002). In response to this

conclusion, plaintiffs argue that because Hayes and Stevens

relied on vague statements the girls made to Vice-Principal

Howell and did not test the reliability of the statements

themselves, they did not have probable cause to detain either

of them.

The problem with this argument is that Hayes and Stevens

did not merely accept the girls’ three statements at face value.

After two of the girls spoke to the guidance counselor, Julie

Orsini, about the threats, she passed along the information to

Vice-Principal Howell and explained that the girls “were

visibly shaken up; that—that they were feeling threatened

because they had had a correspondence with Zach Durbin

concerning threats to them.” JA at 576 (Howell Dep.).

Howell in turn spoke to all three girls, then asked each of

them to write statements about what had happened. The three

girls all conveyed the same essential information to Howell,

and their written statements matched their oral statements.

The contents of the statements were anything but “kids will

be kids” material. According to Sadie LePage: (1) “Zac

14 Williams et al. v. Cambridge

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Nos. 02-3200/3207

Durbin was going to bring a gun to school and shoot us all

because he was sick of bitchy preps”; (2) “he said it would

just be easier to plant a bomb because he could get us all at

once”; and (3) “[Zach] was talking to Rhys and they were

seriously thinking about it.” According to Kayla Hollins:

(1) “I talked to Zac on the phone Wednesday night & he said

he was sick of everybody, everyone was getting on his nerves

& he & Rhys Williams were talking about bringing a gun to

school”; and (2) “he was very serious about the matter [;] his

other option was planting a bomb & taking everyone out on

the first (one) shot.” According to Katie Spittle: (1) “At

lunch I asked Zac if [the note] was really true, and he said

yes. He said him 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 girls’ credibility, and

indeed only after Hayes queried whether the girls could be

trusted, did Hayes credit this version of the events. In view

of Howell’s position as Vice-Principal, Hayes was justified in

trusting Howell’s assessment of the three girls’ credibility and

in respecting 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 Howell’s accusations, contending that Rhys (in

his presence) had been “joking around” when they discussed

the Columbine incident with Gail Allen. 

On this record, the officers’ investigation sufficed for the

task at hand. The question is not whether Zach made these

threats but whether the defendants had probable cause to

believe that he had made them. In the aftermath of

Columbine, the corroborated statements of three girls whom

Vice-Principal Howell deemed trustworthy permissibly

cemented the probation officers’ probable cause

determination—regardless of whether the concern was a

shooting/bomb threat or criminal menacing and regardless of

whether the suspect himself denied making those threats. At

a minimum, the acknowledged statements established
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probable cause of aggravated 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 physical harm to

the person or property of another person . . . . Whoever

violates this section is guilty of aggravated menacing.”); see

also Cohen v. Dubuc, No. 3:99-CV-2566(EBB), 2000 WL

1838351, at *4 (D. Conn. Nov. 28, 2000) (police officer had

probable cause to arrest a high school student after three

independent witnesses gave statements that, two days after the

Columbine tragedy, they heard the student make threatening

comments about “shooting up” the school). 

Separately, Rhys Williams and his parents argue that the

second-hand references to him in the girls’ statements did not

establish probable cause for his arrest. “A close review of the

girls’ statements,” they argue, “reveals that these students

made no claim that they had seen or heard [him] do anything

. . . [and] only reported that [Zach] told them he had ‘spoken

to Rhys about it.’” Williams Br. at 33. They also claim that

Kayla’s conduct—first reciting her story in a note to a friend

two days after her initial conversation with Zach, then trying

to tear up the note, then becoming afraid when her story

began to spread—shows she exaggerated her accusations.

The evidence, however, cannot be so readily parsed. While

we acknowledge that it is easier to dispense with Zach

Durbin’s claim than it is to resolve Rhys’s claim as a matter

of law, the girls’ statements confirm that Rhys was indeed

connected to the matter. Just as importantly, Zach himself

confirmed to Vice-Principal Howell that he and Rhys were

involved in all of the relevant conduct—whether one labels

the conduct a plan of violence, a threat of violence or an

immature (but menacing) joke gone awry. Having concluded

that probable cause existed for the one boy that Friday

afternoon, it was reasonable as a matter of law for the

probation officers to conclude that it existed for the other.

That Rhys was not eventually charged with menacing does

16 Williams et al. v. Cambridge

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not change matters. An arrest grounded in probable cause

does not become invalid merely because the State chooses not

to prosecute the individual or a jury opts for acquittal. See

Criss v. City of Kent, 867 F.2d 259, 262 & n.1 (6th Cir.

1988). 

B. Fourteenth Amendment Claim

Plaintiffs separately argue that the school officials violated

their due-process rights in suspending them without notice

and a hearing. We disagree.

While the Due Process Clause applies to children and to

public schools, the Supreme Court has long made clear that

the procedural requirements of the Clause have considerably

less force when applied to discipline meted out by school

officials to students under their care. Unlike juvenile criminal

proceedings, for example, hearings in connection with short

school suspensions need not “afford the student the

opportunity to secure counsel, to confront and cross-examine

witnesses supporting the charge, or to call his own witnesses

to verify his version of the incident.” Goss v. Lopez, 419 U.S.

565, 583 (1975). Imposing such formalities on a school

suspension proceeding would “not only make it too costly as

a regular disciplinary tool but also destroy its effectiveness as

part of the teaching process.” Id. Before suspending a

student for ten days or less, as a result, all that a school

official must do is give (1) adequate notice of the charge

against the student, (2) an explanation of the evidence

supporting the charge and (3) an opportunity 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

students have a right to only minimal process.”); Donovan v.

Ritchie, 68 F.3d 14, 17–18 (1st Cir. 1995) (applying these

requirements to a temporary school suspension that also

barred participation in athletics and school activities, yet

noting that under Goss, “the mere fact other sanctions are

added to a short suspension does not trigger a requirement for
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17

a more formal set of procedures”); C.B. ex rel. Breeding v.

Driscoll, 82 F.3d 383, 386–87 (11th Cir. 1996) (noting that,

in the short school-suspension context, “the process provided

need consist only of ‘oral or written notice of the charges

against [the student] and, if he denies them, an explanation of

the evidence the authorities have and an opportunity [for the

student] to present his side of the story’”) (quoting Goss, 419

U.S. at 582); Signet Constr. Corp. v. Borg, 775 F.2d 486, 490

(2d Cir. 1985) (citing Goss for the proposition that

“[s]ituations may occur where, given the burden a normal

proceeding would impose, the nature of the interests at stake,

the time limit for state action, and other circumstances, an

informal non-judicial hearing will suffice”).

Measured by these requirements, each plaintiff’s claim fails

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

suspended and second because, with respect to Zach, even if

he had been suspended, the process given him was all the

process that was due. We consider each claim in turn.

1. Rhys Williams 

In the district court’s view, Rhys Williams and his parents

could not challenge the validity of the procedures used to

impose a suspension on Rhys because the school never

suspended him. We agree. 

Rhys and his parents claim that he “was kept out of school

for a period of several days” following his court appearance.

Williams Br. at 24. And they observe that Vice-Principal

Howell wrote a memo on April 23, 1999 indicating that

“suspension papers for Zach and Rhys” had been prepared.

Id. at 42. At the same time, however, they concede that “it

appears that the suspension was never signed or filed.” Id. at

24. And, most pertinently, Rhys’s mother acknowledged in

her deposition that Rhys in fact was not suspended.

18 Williams et al. v. Cambridge

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Q. He was allowed to go to school 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. I guess a lot of us chose that he did not go that week.

Q. How come?

A. I called the principal and asked about the work he’s

going to miss and whether to—I told her I was going to

leave him out of school for a few days, this and that, and

she said she’s not telling him not to come to school, but

she would advise or suggest it would be a good thing that

he didn’t for the safety.

JA at 437 (Allen Dep.).

On this record, the district court correctly rejected this due

process claim as a matter of law. Rhys’s mother

acknowledged that her son was not suspended by the school

district and that the decision to keep him home was hers, not

the principal’s. Even if this decision came with the

principal’s support, that fact does not lay the necessary

predicate for this claim—that the school district in fact

imposed a suspension. 

2. Zach Durbin 

The district court likewise rejected Zach Durbin’s due

process claim on the ground that the school merely initiated

a formal suspension procedure against Zach but never

followed through on it. We again agree, and add that, even if

Zach did receive an informal suspension, he received all of

the process to which Goss entitles him. 
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According to Zach’s mother (Bobbi LaCross), on Monday,

April 26th, Howell told her “Zach was going to be suspended;

but if he was found not guilty [of the aggravated menacing

charge], then the suspension would be canceled.” JA at 617

(LaCross Dep.). LaCross interpreted this statement to mean

that the school had imposed a ten-day suspension on Zach,

which was “to be served immediately.” Durbin Br. at 15.

There is little doubt that at this point suspension papers were

prepared, Howell asked Zach to sign them, and it is fair to

infer from the record that Howell at least expected that a

formal suspension would be issued.

At some point after this initial conversation between

Howell and LaCross, she asked Superintendent 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 regarding the status of Zach’s

suspension, Lodge told her “there’s nothing to appeal at this

point in time.” JA at 638 (Lodge Dep.). 

The school eventually gave LaCross the prepared

suspension papers—though well after Zach had already

returned to school and not because the school actually

followed through on the suspension, but because LaCross

asked to see the proposed papers. Because Zach was found

not guilty of the criminal charge of aggravated menacing in

September 1999, no suspension was ever issued (and none

appears on his record), no formal papers were served on Zach

and his family, and no formal suspension procedures were

followed. 

While the school district’s suspension policy stipulates that

adequate notice and an opportunity for an informal hearing be

given to a student before a suspension is issued, see Ohio

Rev. Code Ann. § 3313.66(A), it nowhere stipulates when

and how school administrators are to suspend students. Nor

does it prohibit conditioning a suspension on whether a

20 Williams et al. v. Cambridge

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Nos. 02-3200/3207

student is criminally convicted of a charge. See generally

Ohio Rev. Code Ann. § 3313.66. Had Zach been found guilty

of aggravated menacing, there is no reason to believe his

“Notice of Suspension” would not have crossedLodge’s desk,

setting the official school-district suspension process on its

proper course. On this record, we agree with the district court

that the school never issued the suspension, even if it did

initiate the suspension process, and accordingly this dueprocess claim should be dismissed.

But even if one assumes that the record creates a fact

dispute about whether Zach received an informal suspension,

his procedural due-process rights 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 charges against him and, if he denies them, an

explanation of the evidence that authorities have and an

opportunity 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 time ‘notice’ is given and the time of the hearing.

In the great majority of cases the disciplinarian may

informally discuss the alleged misconduct with the student

minutes after it has occurred.” Id. at 582. Here, after taking

written statements from the three girls, Howell called Zach to

his office for questioning. He informed Zach of the

allegations against him and asked Zach for an explanation.

No doubt, there was little delay, if any, between the notice

Zach received and his chance to respond, but under Goss that

was all that was required. See 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 right to a hearing.

Again, Goss points the way. It explains that the student must

“be[] given an opportunity to explain his version of the facts

at this discussion,” and the student should “be told what he is

accused of doing and what the basis of the accusation is.”

419 U.S. at 582. As this Court has observed, “‘informal giveand-take between student and disciplinarian’ will satisfy the
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procedural due process requirements for a suspension lasting

for ten days or less.” Buchanan v. City of Bolivar, 99 F.3d

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. He explained the nature of his

conversation with Rhys and Gail Allen on April 23rd,

admitted that Rhys (in Zach’s presence) had been “joking

around” about Columbine, and admitted that he knew about

Kayla’s note. After this conversation, Zach may well have

believed that the information before Howell did not suffice to

suspect him of trying to bomb the school or shoot its students.

But he cannot claim that he was denied the kind of “informal

give-and-take between student and disciplinarian” that Goss

requires for a ten-day suspension from school. Goss, 419

U.S. at 584.

Zach’s argument that his due-process rights were violated

because he did not receive written notice, see Ohio Rev. Code

Ann. § 3313.66(A)(1), and LaCross’s argument that she did

not receive written notice within one day of the supposed

suspension, see Ohio Rev. Code Ann. § 3313.66(D), are

unavailing. While they may be relevant state-law claims, they

do not affect our interpretation of the Fourteenth Amendment

because the liberty interest to which Zach’s due-process rights

attach is his interest in his continued education, not his

interest in written notice. See Martin, 295 F.3d at 706 (noting

that in the context of a school suspension that allegedly did

not conform to provisions of state law, “failure to conform

with the procedural requirements guaranteed by state law

does not by itself constitute a violation of federal due

process” and that Goss has established the minimal due

process required in the context of a short-term suspension);

Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir.

1996) (noting that in the context of an allegedly unfair tenure

review, “[v]iolation of a state’s formal procedure [] does not

in and of itself implicate constitutional due process concerns.

. . . [T]he issue . . . is not whether [school administrators]

conformed [with the school’s] . . . grievance procedure in

22 Williams et al. v. Cambridge

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reviewing the tenure decision. Rather, the issue is whether

Purisch was afforded the process due to protect his property

right to a fair tenure review process”); Pro-Eco, Inc. v. Bd. of

Comm’rs, 57 F.3d 505, 514 (7th Cir. 1995) (“Section 1983

affords relief only if the Constitution is offended, and a

violation of a state procedural statute does not offend it.”).

In the end, Goss establishes the minimal procedural

requirements necessary to protect a student in the context of

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

was satisfactory under Goss because Howell, as the relevant

disciplinarian, discussed the alleged misconduct with Zach,

who was given a chance to respond. Though expeditious and

assuredly informal in nature, Zach received the rudimentary

process required by Goss when the suspension is ten days or

less. Suspended or not, in other words, Zach’s Fourteenth

Amendment due-process rights were not violated. 

C. State Law Claims

Rhys and Zach also appeal their state law claims. Rhys

appeals his false arrest and false imprisonment claims, saying

simply that they “rise or fall entirely on the issue of probable

cause. For that reason, the facts and analysis . . . regarding

[his] . . . Fourth Amendment claims apply equally to these

claims under Ohio law.” Williams Br. at 43. 

As to the false arrest claim, Hayes and Stevens, as

employees of a political subdivision performing a

governmental function, are immune from tort liability unless

Rhys can show their “(a) . . . acts or omissions were

manifestly outside the scope of the employee’s employment

or official responsibilities; (b) [their] acts or omissions were

with malicious purpose, in bad faith, or in a wanton or

reckless manner; [or] (c) [c]ivil liability is expressly imposed

upon [them] by a section of the Revised Code.” Ohio Rev.

Code Ann. § 2744.03(A)(6)(a)–(c). Rhys has not provided

any evidence that these defendants acted with malice, bad
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faith or in a wanton or reckless manner. And because we

have already concluded that Hayes and Stevens had probable

cause to arrest and detain Rhys and Zach, the probation

officers’ actions were within the scope of their employment

and in good faith. 

As to the false imprisonment claim, Rhys must show Hayes

and Stevens confined him intentionally without lawful

privilege and against his consent in a limited area for a

nontrivial period of time. See Feliciano v. Krieger, 362

N.E.2d 646, 647 (Ohio 1977); see also Witcher v. City of

Fairlawn, 680 N.E.2d 713, 715 (Ohio Ct. App. 1996). The

detention must be “purely a matter between private parties for

a private end” in which there is no intention of bringing an

individual before a court. Rogers v. Barbera, 164 N.E.2d

162, 164 (Ohio 1960). Hayes and Stevens did not falsely

imprison Rhys because they confined him in accordance with

Ohio law. 

Zach also appeals his malicious prosecution claim. To

prevail, he must establish “(1) malice in instituting or

continuing the prosecution, (2) lack of probable cause and

(3) termination of the prosecution in favor of the accused.”

Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio

1990). Officer Harbin is the only defendant who instituted a

prosecution in this case—charging Zach with aggravated

menacing, which requires proof that one knowingly caused

another to believe the offender would cause serious harm.

Ohio Rev. Code Ann. § 2903.21. Zach acknowledges that

Harbin’s complaint against him “included these elements and

further alleged that Zachary threatened the life of Sadie

LePage, as well as the lives of other students, with a gun or a

bomb.” Durbin & LaCross Br. at 28. Though the prosecution

ultimately terminated in Zach’s favor, Zach has failed to

allege any facts that demonstrate Harbin acted with malice

toward him in commencing this prosecution. 

24 Williams et al. v. Cambridge

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III. 

For the foregoing reasons, the district court’s decision is

affirmed.
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1

In fact, the Columbine school district, the Jefferson County Sheriff’s

Department, and the parents of the two Columbine killers have all been

sued for their failure to act upon real and credible threats. See Castaldo

v. Stone, 192 F. Supp. 2d 1124 (D. Colo. 2001). The existence of such

cases should not, however, deprive students of legal redress for

constitutional infractions by schools, police, and other local officials.

2

At least one other federal court vindicated the efforts of police

officers following a threat in the wake of the Columbine tragedy in a case

that is distinguishable on the facts and obviously not binding on this

panel. See Cohen v. Dubuc, No. 3:99-CV-2566 (EBB), 2000 WL

1838351, at *4-6 (D. Conn. Nov. 28, 2000) (the arresting officers

themselves interviewed the witnesses, revealing an actual date of attack,

and the threats were more coherent and violent).

_____________________________________________

DISSENTING IN PART, CONCURRING IN PART

_____________________________________________

KAREN NELSON MOORE, Circuit Judge, dissenting in

part, concurring in part. I respectfully dissent from Parts II.A

and II.B of the majority’s opinion. The tragic destruction at

Columbine High School in Littleton, Colorado etched

devastating images of adolescent rage run amok onto the

national consciousness. The realization that the perpetrators

of this violence were young teenagers crystallized latent fears

that a new danger had emerged from within our own

communities. In the weeks of national introspection that

followed, parents, students, and educators alike expressed

anxiety that copycat incidents were imminent and stood

vigilant against their occurrence. While I do not discount the

reality that such an environment left these school and law

enforcement officials with little choice but to make

unenviable judgments under enormous pressure,1 I cannot

conclude that post-Columbine trepidation over copycat crimes

systematically discounts real factual disputes over the

violations of these students’ constitutional rights.2 Rhys and

26 Williams et al. v. Cambridge

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3

I concur with the majority’s holding to the extent that it affirms the

district court’s grant of summary judgment as to several other claims

asserted by Rhys and Zach. First, neither plaintiff appealed the grant of

summary judgment with regards to the following claims: intentional

infliction of emotional distress, defamation, violation of First Amendment

rights in contravention of § 1983, conspiracy to violate § 1983, and the

existence and enforcement of school and city policies that proximately

caused the violation of constitutional rights. Notably, neither plaintiff

argued on appeal that an officially executed or tolerated custom or policy

directly led to and was proximately linked with unconstitutional behavior.

See Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993),

cert. denied, 510 U.S. 1177 (1994). Thus, the plaintiffs are not appealing

the central claims against the institutional defendants. Litigants waive any

claims or defenses that they do not raise in their appellate briefs. Bickel

v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir. 1996).

Second, Rhys’s and Zach’s § 1983 Fourth Amendment claims against

the school official and police department defendants fail as a matter of

law because those defendants never “arrested” Rhys or Zach. “[A] person

has been ‘seized’ within the meaning of the Fourth Amendment only if,

in view of all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.” United States

v. Mendenhall, 446 U.S. 544, 554 (1980). No police officers were present

at the school when Zach was arrested. Additionally, although Zach was

literally “detained” by the school officials, none of the school official

defendants arrested or seized Zach such that they violated his Fourth

Amendment rights. See Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010,

1013 (7th Cir. 1995) (“Once under the control of the school, students’

Zach have presented several genuine issues of material fact

concerning the circumstances oftheir arrests and suspensions,

which would permit a reasonable jury to find in their favor.

At this stage of the litigation, we are charged only with the

task of assessing whether such a quantum of evidence has

been proffered and not with the responsibility to balance such

evidence against facts to the contrary. As a result, I would

hold that the grant of summary judgment was improper with

respect to Rhys’s and Zach’s § 1983 Fourth Amendment

claims against Jeffrey Hayes (“Hayes”) and Jean Stevens

(“Stevens”) and their § 1983 Fourteenth Amendment claims

against William Howell (“Howell”) and Thomas Lodge

(“Lodge”).3
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movement and location are subject to the ordering and direction of

teachers and administrators.”). Furthermore, with regards to Rhys’s

arrest, summary judgment was appropriate for all the defendants, except

for defendant Stevens, as only Stevens was involved in Rhys’s arrest.

Third, the district court properly granted summary judgment on

Rhys’s and Zach’s § 1983 Fourteenth Amendment claims against the

Probation Department defendants (Hayes, Stevens) and the Cambridge

Police Department defendants (LePage, Harbin, City of Cambridge)

because they have no authority over suspensions in the Cambridge

schools.

Fourth, I concur fully with the majority’s discussion of the state-law

claims.

I. BACKGROUND FACTS

I explicate my understanding of the facts because part of

my disagreement with the majority stems from our somewhat

divergent interpretations of the record, particularly the facts

surrounding Zach’s arrest. After the phone call on

Wednesday, April 21, 1999, during which Zach allegedly told

Kayla Hollins about his plan to kill the “preps” and

implicated Rhys in the process, Kayla made no mention of the

phone call to her parents, to her friends, or to school

authorities for nearly two days. Kayla first discussed the

alleged contents of the phone call in a note written to Sadie

Le Page on Friday, April 23, 1999. A few hours and several

class periods later, the girls approached Zach and asked him

whether the note’s contents were true, allegedly receiving an

affirmative answer. Zach disputes that he confirmed the

note’s veracity, and before he had a chance to read the note,

Kayla ripped the note in two, allegedly because she did not

want Zach to read the note and because she did not want him

to get in trouble. In her testimony at Zach’s trial, she

intimated that the note and the following drama were jokes,

and that she did not expect or want Zach to get arrested.

Other facts bolster the conclusion that Kayla may have

fabricated or embellished her conversation with Zach; Kayla

was reported to exaggerate at times and had caused trouble for

28 Williams et al. v. Cambridge

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others in the past by prevaricating. It was only after the lunch

period that Sadie and Katie finally decided to inform school

officials of the threat, approaching the school’s guidance

counselor, Julie Orsini, who in turn contacted Vice-Principal

William Howell.

Howell then took the lead role in “investigating” the

incident. He met with Sadie and Katie before eventually

calling Kayla to his office. All three girls wrote statements in

which they described the events of that morning and their

interactions with Zach. Howell did not investigate the

veracity of their claims; he instead assumed that the girls were

telling the truth. He never saw the note that Kayla had

written. At some point after he spoke with the girls, Howell

began the process of “emergency removing” Zach from the

school, Howell contacted Assistant Superintendent James

Spisak (“Spisak”), who agreed that Zach 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 called Hayes,

Zach’s probation officer, so that Howell could release Zach to

an adult. Hayes and Howell spoke twice before Hayes arrived

at the school, and during the second phone call, Howell

informed Hayes of the girls’ claims that Zach had threatened

them with violence. Either before going to the school or

while in transit, Hayes spoke with Stevens, his supervisor and

the Chief Probation Officer of Guernsey County, and

erroneously informed her that two of their juvenile probation

“clients” were implicated in a bomb threat. Hayes mentioned

that the Cambridge police had begun an investigation, but

Hayes did not name any officers, and he later testified that he

did not see any police officers when he arrived at the school.

Upon arrival, Hayes met with Howell, who informed Hayes

about the statements of the three girls. Hayes asked Howell

“whether these [girls] were reputable students,” because he

wanted to determine “whether it was somebody trying to get
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4

Hayes was deposed on May 3, 2001. His deposition does not appear

in the Joint Appendix, but a copy of the deposition is a part of the official

district court record.

even with Zach or that type of thing.” Hayes Dep. at 21.4

However, Hayes never spoke with girls; he did not assess the

girls’ credibility himself, nor did he conduct an in-depth

investigation. Hayes testified that his decision to seize Zach

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

understanding of the contents of Kayla’s torn note, Howell’s

intuitions about Zach, and Hayes’s belief, shaped primarily by

Howell, that the girls were reputable sources. However,

Hayes did not learn that Kayla had a reputation, even among

her friends, for embellishment of the truth, nor did he learn

that Kalya had disciplinary problems in the past.

The details of Zach’s arrest are critical. There are several

nontrivial disputes concerning the few minutes preceding

Zach’s arrest, the significance of which plays no small role in

my decision to dissent. Howell called Zach into his office

and questioned him about the girls’ accusations. Howell

stated: “When questioning Zach in the office, he had

indicated that he was joking around and the statement was,

You know how Rhys is.” Joint Appendix (“J.A.”) at 581

(Howell Dep.). Howell also testified that Zach confirmed the

contents of the note, although Howell gave contradictory

testimony about whether he ever saw the note or showed 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 made any threats.

Zach stated in his deposition that Rhys had been “joking

around” with his mother, Gail Allen, when Rhys and Zach

were discussing the Columbine incident with Allen several

hours before Zach and Kayla’s telephone call. J.A. at 469-70.

30 Williams et al. v. Cambridge

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Nos. 02-3200/3207

The “joking around” consisted of Rhys asking his mother

what she would do if he and Zach perpetrated an act like the

tragedy that befell Columbine, but it did not include any

indication that Zach or Rhys intended to harm anyone. Zach

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

majority believes that Zach informed Howell about Rhys’s

“joking around.” However, Zach’s deposition does not

indicate that he told Howell that either he or Rhys had been

joking around with Rhys’s mother. His deposition testimony

about his discussion with Howell is as follows:

Q: Tell me what happened when you got to the office.

A: We went in Mr. Howell’s office, and he closed the

door, and Mr. Howell told me that there had been a

note circulating and three girls came to the office

with the note and told him that I was — me and

Rhys said we was going to blow up the school.

Q: Do you know what he was talking about when he

said that?

A: I knew what he was talking about after he said a

note was circulating.

Q: You knew what three girls he was talking about?

A: Yeah.

Q: What did you say to that?

A: He just kept going on with the story and then — I

was like, no, that’s not true. And then he just kept

going on 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

then my conversation with Kayla, and then that’s
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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 before Hayes

entered Howell’s office, Hayes reported that he had taken

statements from three girls whom he found to be reputable,

prompting Stevens to approve Zach’s “arrest.” At some

point, Hayes went into Howell’s office, but it is not clear at

what point during Howell’s questioning of Zach this

occurred. It is also uncertain whether Hayes, as the actual

arresting officer, actually heard Zach admit that he had made

the threats, if Zach ever said such a thing. Hayes did not

corroborate Howell’s assertion that Zach admitted to making

the threats. Furthermore, Hayes never asked Zach to recount

his view of the day’s events. Hayes later stated: “I’m not the

one that’s going to be investigating. I didn’t want him to say

anything to me. I never want the kid to say anything to me

that, you know, I might have to testify against him or

something like that. He did profess his innocence to me.”

Hayes Dep. at 35-36. After some undefined but brief period

of time, during which Zach tried to exculpate himself, Hayes

told Zach to set down his books, and then Hayes arrested

Zach.

Rhys was not involved with any aspect of the investigation

that took place at the school on Friday, April 23, as he was

absent from school. Neither Hayes nor Stevens observed

Rhys or spoke with the girls about Rhys. Rhys’s name

became entwined in these events only because of Kayla’s

note, as neither Howell nor Zach recalled that Rhys’s name

came up in the conversation in Howell’s office.

32 Williams et al. v. Cambridge

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5

Zach can assert a § 1983 Fourth Amendment claim against both

Hayes and Stevens, under theories of direct and supervisory liability,

whereas Rhys can pursue his § 1983 Fourth Amendment claim only

against Stevens based upon supervisory liability. Hayes arrested Zach and

another probation officer, Becky Masters, arrested Rhys; Stevens ordered

the arrest of both in her capacity as the supervisor of both probation

officers. The supervisor of a violating party may be liable for that party’s

violation of a third person’s constitutional rights, if the supervisor

“encouraged the specific incident of misconduct or in some other way

directly participated in it.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th

Cir. 1984). It is not disputed that Stevens “at least implicitly authorized,

approved or knowingly acquiesced” in the detention of both students. Id.

II. RHYS’S AND ZACH’S § 1983 CLAIMS

Rhys and Zach assert two separate § 1983 claims based

upon alleged violations of their Fourth and Fourteenth

Amendment rights. I believe that the genuine issues of

material fact attendant to both claims require the reversal of

the district court’s grant of summary judgment.

A. The Fourth Amendment Claims

Recognizing that all evidence and inferences from that

evidence must be taken in a light most favorable to Rhys and

Zach, I believe that it is patently clear that there is a genuine

issue of material fact concerning whether or not Hayes and

Stevens had probable cause to arrest them.

5

 Probable cause

means the “facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or

one of reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is committing, or is

about to commit an offense.” Criss v. City of Kent, 867 F.2d

259, 262 (6th Cir. 1988) (quoting Michigan v. DeFillippo,

443 U.S. 31, 37 (1979)). “The Fourth Amendment . . .

necessitates an inquiry into probabilities, not certainty.”

United States v. Strickland, 144 F.3d 412, 415 (6th Cir.

1998). In analyzing an officer’s actions, we must look at the

totality of the circumstances from a reasonable officer’s
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33

perspective at the time of the arrest so as to avoid the effect of

hindsight bias. Klein v. Long, 275 F.3d 544, 550 (6th Cir.

2001). The arresting officer does not need to demonstrate that

prima facie proof exists before arresting a suspect, but the

officer’s underlying motivation for the arrest must be based

on something 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 search for

balancing evidence after establishing that probable cause

existed, an officer must consider all evidence, including

exculpatory evidence, before making a probable cause

determination. Officers cannot make “hasty, unsubstantiated

arrests with impunity.” Ahlers v. Schebil, 188 F.3d 365, 371

(6th Cir. 1999). Nor can they “simply turn a blind eye

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

information from a source of untested reliability. Wong Sun

v. United States, 371 U.S. 471, 482 (1963). In general, the

question of probable cause is one for the jury, unless it is clear

that only one reasonable determination is possible. Crockett

v. Cumberland College, 316 F.3d 571, 581 (6th Cir. 2003).

1. Rhys’s § 1983 Fourth Amendment Claim Against

Stevens

Considering all available evidence and inferences from that

evidence in the light most favorable to Rhys, a reasonable

jury could conclude that the facts and circumstances of which

Stevens was aware did not justify Rhys’s arrest because

Stevens relied blindly upon Hayes’s recommendations,

without confirming that Hayes had tested the allegations of

the three students, investigated the incident beyond accepting

Howell’s version of the events, or even spoken with Rhys.

Compare Criss, 867 F.2d at 262; Ahlers, 188 F.3d at 372.

When Hayes called Stevens, Rhys was not at school, and

Hayes’s knowledge of Rhys’s potential involvement came

34 Williams et al. v. Cambridge

Bd. of Educ. et al.

Nos. 02-3200/3207

only thirdhand (Hayes spoke with Howell about Kayla’s note,

which recounted the alleged conversation with Zach from the

night before, during which Rhys’s name was briefly

mentioned). Hayes did nothing further to investigate Rhys’s

involvement, nor did Stevens order him to do so. Hayes did

not speak to the girls, nor did he confirm Rhys’s involvement

in the threat. While the girls did believe that Zach had

personally indicated the veracity of his threat, no comparable

evidence existed as to Rhys. The only evidence linking Rhys

to the threat was Kayla’s note, which Hayes never saw, and

Kayla’s statements, which Hayes never took. Both of these

were tangential pieces of evidence, as Kayla never actually

spoke with Rhys, a fact that Hayes never uncovered.

One could conclude that it was impossible for Stevens to

believe that probable cause existed based upon the extremely

limited evidence gathered by Hayes, who had neglected to

speak with or observe the accused, to test the allegations of

the principal witnesses, or to investigate Rhys’s involvement

more than superficially. Hayes relied on hearsay information

about a student who was not even in attendance in school and

whose name became intertwined in this web of events only

because of Kayla’s note. Hayes then relayed this data to

Stevens. From that limited information, Stevens authorized

a detention. 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 information from a source of

untested reliability. Wong Sun, 371 U.S. at 482.

Consequently, I believe that there is a genuine issue of

material fact concerning whether Stevens had probable cause

to order the arrest of Rhys.

2. Zach’s § 1983/Fourth Amendment Claim Against

Hayes and Stevens

The circumstances surrounding Zach’s arrest undoubtedly

present a closer call, but ultimately I believe that the district
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35

6

For simplicity’s sake, Stevens and Hayes are grouped together in

this discussion, because both are liable for Hayes’s actions.

court’s grant of summary judgment was in error.6 Much of

the same rationale that supports my reasoning regarding

Rhys’s claim against Stevens applies here. Hayes arrived at

the school mistakenly believing that the school was handling

an impending bomb threat, a misunderstanding that he

conveyed to Stevens. Relying solely on Howell’s own

limited investigation and Howell’s belief that the girls were

“reputable and believable,” Hayes performed no additional

investigation, foregoing an opportunity to assess for himself

the girls’ credibility and to discover that at least one of the

girls had a reputation for exaggeration.

A sharp difference between Zach’s and Rhys’s arrests is

that Hayes did actually speak with Zach. Hayes had an

opportunity to assess Zach’s behavior and his credibility, but

Hayes declined to hear Zach’s recounting of events, mainly

out of a belief that this would protect Zach. This deprived

Hayes of the ability to make a grounded determination that he

had probable cause to arrest Zach. I do not endorse a

wholesale rule that law enforcement officials investigating a

crime or a threat of a crime must always speak with the

alleged perpetrator before determining that probable cause

exists, particularly when sufficient inculpatory evidence is

apparent to the arresting officer. See Klein v. Long, 275 F.3d

544, 551 (6th Cir. 2001) (holding that officers had probable

cause to arrest without questioning the suspect when officers

responded to a domestic violence 911 call and immediately

saw a visibly upset and bleeding woman who told the officers

that her husband had physically harmed her). Nonetheless,

when sufficient inculpatory evidence is not immediately

obvious, an arresting officer has done little to investigate the

threats allegedly made by the accused, and the officer has not

spoken with the principal 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 testified that Zach admitted making threats

against Kayla, but that Zach was only “joking around” in

making such intimidations, Zach denies ever having made

such threats. The existence of this factual dispute highlights

two problems with the majority’s holding. First, Zach

disputes that he ever admitted threatening Kayla. Zach told

Howell that in his conversation with Kayla he merely

recounted the details of an innocuous conversation with

Rhys’s mother. In his deposition, Zach declared that he did

not confirm the veracity of the ripped note’s contents to

Howell. It is not for this court to decide 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 of summary judgment. Second, even if Zach did

make such an admission, there is no evidence that Hayes

heard it, and thus it could not have informed his probable

cause determination. As the arresting officer, it is Hayes’s

probable cause calculus, and not Howell’s, with which we

should be concerned. The majority appears to focus on

Howell’s determination of the trustworthiness of the three

girls, but it is Hayes’s probable cause determination, not

Howell’s, that is the focus of this case. Neither Howell nor

Hayes suggest that Zach admitted to having made the threats

in Hayes’s presence or that Howell told Hayes about the

supposed “confession” before Hayes decided to arrest Zach.

There is no doubt that Hayes was faced with a difficult and

delicate choice. He arrived at the school and was told by

Vice-Principal Howell that Zach, who had a history of prior,

albeit nonviolent, juvenile delinquency, had threatened

several students two days after the Columbine disaster.

However, Hayes, as a probation officer, had little experience

in investigating crimes or potential crimes. See Hayes Dep.

at 25 (“We don’t normally investigate things. We are asked

to act on an emergency basis . . . . That’s why I wanted to see

what these statements said, to see if it was, you know,

possibly believable, 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

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37

Guzman, 75 F.3d 1090, 1096 (6th Cir.), cert. denied, 519 U.S.

906 (1996) (“Law enforcement officers naturally reach

conclusions based on their training and experience.”). He did

not ask Howell to describe in more depth the chain of events

that led to Zach’s emergency removal. He did not inquire of

Howell about the bases for Howell’s determination that the

girls were telling the truth. He did not interview any of the

students involved, either the girls or Zach, to make his own

assessment of their reliability. He did not investigate whether

Zach even had access to weapons that would allow him to

carry through the alleged threat. Hayes did not make another

attempt to contact Zach’s parents 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 engaged in any

violence waiting for his parents at the school. This was not a

situation in which Howell or another member of his staff

observed Zach make a threat or commit any act of violence or

in which multiple warning signs about Zach’s behavior and

history made his alleged threat more likely. By analogy, it

would surprise the reasonable person if the police could have

probable cause to arrest him or her based solely upon hearsay,

where no observable evidence supported an allegation of

wrongdoing and the police failed to question either the

accuser or the accused, but instead relied on the statement of

a third party to whom the accuser recounted the hearsay.

Our decision in Williams v. Ellington, 936 F.2d 881 (6th

Cir. 1991), provides some contrast about the level of

investigation that must take place before school officials can

act, although the legal question in Williams concerned

probable cause to search as opposed to probable cause to

arrest. See New Jersey v. T.L.O., 469 U.S. 325, 341-42

(1985) (establishing that a student search “does not require

strict adherence to the requirement that searches be based on

probable cause” and stating that a search will satisfy a

“reasonableness” requirement “when there are reasonable

grounds for suspecting that the search will turn up evidence”

of an illegality). In Williams, the plaintiff, a teenage 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

rights by strip searching her without probable cause as part of

an investigation into allegations that she had been consuming

drugs at the school. Id. at 882. A fellow student first alerted

the principal to the problem by claiming that she had

witnessed the plaintiff and a friend ingesting drugs in class.

The principal verified that the accusing student had no

animosity towards the plaintiff, ruling out any ulterior

motives of the accuser, and then launched a multiday

investigation of the plaintiff. He approached several of the

plaintiff’s teachers, who corroborated her strange behavior

and reported a note that the plaintiff wrote in which she

referred to drug use. The principal also collected information

from the school’s guidance counselor, the plaintiff’s aunt, and

the friend’s father, all of whom expressed concern that both

students may have been taking drugs. The principal acted

only when the student who first made the allegation again

approached him and complained for the second time that the

plaintiff was ingesting drugs in class. Id. at 883.

We held that reasonable suspicion — the standard set forth

in New Jersey v. T.L.O. — did exist for the strip search in

Williams. Based upon T.L.O.’s analogy to the reasonablesuspicion standard set forth in Terry v. Ohio, 392 U.S. 1

(1968), we wrote, “We can correlate the allegations of a

student, implicating a fellow student in unlawful activity, to

the case of an informant’s tip,” which by itself meets the

threshold for reasonable suspicion. Williams, 936 F.2d at

888. Yet, when “there is concern that students will be

motivated by malice and falsely implicate other students in

wrongdoing, that type of situation would be analogous to [an]

anonymous tip,” which does not establish reasonable

suspicion in the absence of further investigation. Id. at 888-

89. We upheld the lower court’s dismissal of the plaintiff’s

suit in Williams because in addition to the complaining

student’s “tip,” which the principal determined was not borne

of malice, the principal uncovered strong evidence during his
Nos. 02-3200/3207 Williams et al. v. Cambridge

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39

7

Because I believe that Rhys’s and Zach’s Fourth Amendment claims

should proceed beyond the summary judgment stage, Hayes’s and

Stevens’s qualified immunity arguments must be taken into account.

Public officers who perform discretionary functions “generally are

shielded 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 applicability of qualified immunity depends on: 1)

whether the facts viewed in a light most favorable to the plaintiffs

demonstrate that a constitutional violation occurred; 2) whether the

ensuing investigation, including the suspicions of the

plaintiff’s family that she was using drugs.

Juxtaposing the events in Williams with the facts of this

case demonstrates the insufficiency of the investigation of

Zach’s threat. Both Howell and Hayes satisfied themselves

that neither Kayla nor the other girls leveled these accusations

against Zach out of malice; accordingly, Kayla’s allegations

may be best analogized to an informant’s tip. While these

allegations may have created a reasonable suspicion for

Howell or Hayes to search Zach for weapons, without further

investigation, they did not present “facts and circumstances

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

reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to

commit an offense.” Criss, 867 F.2d at 262. Unlike the

principal in Williams, Hayes did not engage in any further

investigation of Zach or his threats. Hayes did not necessarily

need to spend days investigating the incident before

concluding that he had probable cause, but Hayes could have

conducted at least some minimal level of investigation in a

short period of time that afternoon. Taking into account the

totality of all the facts and circumstances of which Hayes was

aware, there are enough factual disputes to permit a

reasonable jury to conclude that Hayes, and Stevens through

her supervisory role, violated Zach’s Fourth Amendment

rights by arresting him without probable cause.7

40 Williams et al. v. Cambridge

Bd. of Educ. et al.

Nos. 02-3200/3207

violation involved a clearly established right of which a reasonable officer

would have known; and 3) whether the plaintiff adduced sufficient facts

to prove that the officer’s actions were unreasonable in light of the

constitutional 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 entitled to qualified immunity because “[s]ummary judgment is not

appropriate if there is a genuine factual dispute relating to whether the

defendants committed acts that allegedly violated clearly established

rights.” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996); see

also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (“Summary

judgment is not appropriate if there is a genuine factual dispute relating

to whether the defendants committed acts that allegedly violated clearly

established rights.”) (quotation omitted).

8

Under Ohio state law, a school board may suspend any student up

to ten days, but it must give students written notice of the intention to

suspend and must provide students with an opportunity to appear at an

informal hearing and challenge the reason for the intended suspension.

See Ohio Rev. Code § 3313.66(A)(1)-(2). The Cambridge Board of

Education established its own suspension and removal guidelines under

the auspices of § 3313.66(A). Under these procedures, a student may be

B. Fourteenth Amendment Claims

The majority also errs in its determination that summary

judgment was proper as to the § 1983 Fourteenth Amendment

claims. The Fourteenth Amendment’s guarantee of

procedural due process requires that, for a suspension of no

more than ten days, a school administration give a student

notice of the charge(s) against him, an explanation of the

evidence underlying those charges, and an opportunity to

attend a hearing during which the student can present a

defense. Goss v. Lopez, 419 U.S. 565, 581 (1975); see also

Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000) (citing

Goss for principle that students cannot be suspended without

an opportunity for a hearing). In general, the hearing, which

can be informal, should occur before the student is removed

from the school, although this is not necessary for a procedure

to pass constitutional muster. Buchanan v. City of Bolivar, 99

F.3d 1352, 1359 (6th Cir. 1996).8 The parties chiefly
Nos. 02-3200/3207 Williams et al. v. Cambridge

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41

suspended by the Superintendent or a principal for up to ten days so long

as there is notice of and opportunity for a preliminary hearing before the

suspension is meted out. During this hearing the student must have a “full

opportunity” to state why he or she should not be suspended. However,

this preliminary hearing is not required if “a clear and present danger

exists.” Within one school day after the suspension, the principal must

notify the student’s parents about the reason for the suspension and notify

them of their right to appeal. Then, a student may file a written appeal to

the Superintendent within five days. The Superintendent can uphold the

suspension, reduce it, or reverse it completely, but if he chooses to

maintain the suspension, the student then has the opportunity further to

appeal the suspension to the Board of Education within five days.

Additionally, for “emergency removal,” a principal must provide a

hearing concerning the removal “[a]s soon as practicable after a removal

in excess of twenty-four (24) clock hours but within three (3) school

days.” J.A. at 348 (Cambridge Bd. of Educ. Procedures).

disagree over whether either student actually was suspended

and not whether either student received adequate notice. The

defendants do not contest the lack of notice because they

argue that the parents of Rhys and Zach voluntarily kept them

from school during the ten days they were allegedly

suspended. Because I would hold that a genuine dispute of

material fact exists regarding whether or not the school

actually suspended the two students, I would reverse the

district court.

1. Rhys

Taking the evidence in a light most favorable to Rhys,

summary judgment should not have been granted. The

majority points to some pieces of evidence that cut against

Rhys’s claim. Rhys never received any paperwork regarding

a suspension, a fact that Howell and Lodge latch onto as proof

that no suspension ever existed. Additionally, Rhys’s mother

stated that part of the reason for Rhys’s absence was her

reluctance to expose him to any backlash from his peers.

However, when one views the evidence in a light most

favorable 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 any paperwork

regarding Rhys’s suspension does not conclusively suggest

that no suspension existed, particularly given Howell’s

inconsistent testimony regarding both the existence of

suspension paperwork and his intent to suspend the two

students. Furthermore, Rhys’s mother did not keep Rhys out

of school solely because she alone feared a backlash against

Rhys; the principal, Mrs. Smith, advised her to keep Rhys out

of school. It seems doubtful that the principal of the school

would advocate a student missing ten days of school or even

tolerate a student 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 genuine factual

dispute regarding the existence of a suspension. Bobbi

LaCross, his mother, never received official notice of the

suspension, yet on April 26, Howell made Zach sign a paper

regarding the suspension and told LaCross “that Zach was

going to be suspended; but if he was found not guilty, then

the suspension would be canceled.” J.A. at 617 (LaCross

Dep.). LaCross asked Howell about appealing the

suspension, and he responded that he would mail her the

papers. After failing to receive the papers, LaCross called

Lodge several times to complain; her conversations with him

suggested that Lodge had seen the suspension papers and was

frustrated that LaCross had not obtained them yet. Upon

finally receiving the papers, long after the suspension period

had ended, LaCross tried to appeal, only to be told that there

was nothing to appeal because no suspension had ever issued.

This sequence of events creates a factual dispute about

whether the school officials either suspended Rhys and Zach

without notice or constructively suspended them, by telling

their parents that they were suspended, but not moving

through the formal suspension process.
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43

The majority also reasons that summary judgment was

proper because even assuming that 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 Zach to respond. Maj. Op.

at 20-22. The majority reaches this conclusion based upon

the brief conversation Zach and Howell had in Howell’s

office shortly before Zach was arrested. I cannot concur for

two reasons. First, whatever the limited notice and

opportunity for objection given to Zach, it occurred in the

context of Zach’s emergency removal, not his alleged

suspension. Howell questioned Zach to determine whether

Zach should be emergency removed from the school.

Emergency removal is different than suspension; the former

involves an immediate, limited duration expulsion from

school, whereas the latter results in a longer absence from

school. See J.A. at 348 (Cambridge Bd. of Educ. Procedures).

While Howell may have given Zach the required process with

regard to the emergency removal, the emergency removal

reached its end point before Zach learned of his ten-day

suspension. Assuming, as we must, that Howell actually

suspended Zach conditioned upon the result of Zach’s trial,

Howell afforded Zach no opportunity to review the evidence

or respond to the charges that prompted the ten-day

suspension. The purposes of Goss would be defeated if a

school were permitted to institute multiple suspension

proceedings against a student, even if based upon the same

incident, but only allowed the student to defend him or herself

once.

Second, there is a factual dispute over how much of an

opportunity Zach had to respond to the charges and evidence

brought against him in the emergency removal “proceeding.”

While Howell suggests that Zach had a chance to respond and

admitted to making threats, Zach presents a completely

different recollection of the events of that afternoon. Zach

stated in his deposition that he denied ever making the threats

to Kayla. The majority again assumes, as it does throughout

44 Williams et al. v. Cambridge

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Nos. 02-3200/3207

its analysis, that Howell’s testimony about Zach’s

“confession” is an accurate description of what actually

occurred, but this presumption turns the summary judgment

standard on its head; we must assume, for purposes of

summary judgment, that Zach’s story, not Howell’s, is the

correct one. Zach claimed that Howell did not give him much

of an opportunity to defend himself, because Hayes arrested

Zach before he could fully explain. While an “informal giveand-take between studentsand disciplinarian,” Goss, 419 U.S.

at 584, may constitute enough process to satisfy Goss, the

parties dispute precisely how much informal conversation

occurred between Zach and Howell. It is the place of the jury,

and not this court, to reconcile these conflicting testimonies

regarding whether Zach had enough of an opportunity to

defend himself to satisfy Goss. Consequently, I do not agree

that the district court should have granted summary judgment

to the defendants.

III. CONCLUSION

The issue presented to this court is not whether Rhys and

Zach should ultimately prevail on the merits in their action

against the defendants. The issue is whether, taking all the

evidence in the record and the inferences from that evidence

in the light most favorable to Rhys and Zach, genuine

disputes of material fact exist that would permit a reasonable

jury to find in their favor. Whereas the majority assumes

facts to be true that are actually disputed, I believe that

genuine issues of material fact surround Rhys’s Fourth

Amendment claim against Stevens, Zach’s Fourth

Amendment claims against both Hayes and Stevens, and both

students’ Fourteenth Amendment claims against Howell and

Lodge. The district court thus erred in granting the

defendants’ motion for summary judgment. The school,

police, and probation officials faced excruciatingly difficult

decisions amidst the fear-drenched penumbra of Columbine,

but in the presence of genuine issues of material fact, it is the

task of the fact-finder to evaluate the significance of these
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45

contextual factors to the determination of probable cause and

the decision to suspend the students. For these reasons, I

respectfully dissent.