NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0665n.06
No. 11-3699
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
RAMZ I K. HAL ASAH,
P laintif f-App ellant,

v. CI TY OF KI RTL AND; WAYNE BA UMGART; J EFF FI SHER,
Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF OHI O

Before: BOGG S, NORRIS, an d KETHLE DG E, Circuit Judges.

P ER CURIAM
. Ramzi K. Halasa h appea ls the district court’s g rant of summary judgme nt in favor of

the def endants in t his civil rig hts action filed under 42 U.S.C. § 1983. For the reasons
set forth below, we reve rse and rema n d with respe ct to Halasa h’s false arr est and malicious
prosec ution claims but otherwise af firm the district cour

t. This case arises from Halasa h’s arr est for disorderly conduct. I n the ear ly morning hours of M ay 2 3 , 2009, Halasa

h was called to collect his son, who was being detained on suspicion o f undera g e possession of alcohol and trespassing , afte r office rs with the Kirtland Police Depa rtment discovere d the remnants of an outdoor party wher e teenag ers had been d ri n k i n g. Halasa h arr ived at the sce ne and, w hen he w as informe d that his son was being char g ed with alcohol c onsumption for being under the ag e of twenty -one and intox icated, asked that his son be g iven a brea thaly zer test, which the office rs ref

used to do. Halasa

h alleg ed that he “had numerous questions” for the office rs “re g arding

their proof

and conduc t tha t nig ht.” Acc ording to Office r Jeff Fishe r, the investig atingNo. 11-3699 - 2 - office r, Halasa

h behave d in a dis ru p t i v e manner
. Halasa h was told to leave the premises or be

arr ested, a

nd he complied. Offic er Fi s h er prepa

red an incident repor

t, which he forwa

rded to the prosec utor. After revie wing the incident re p o rt , t h e prosec utor deter mined that Halasa

h should be char g ed with disorderly conduct in violation of Ohio Revised Code § 2917.11(A)( 4), a fourth-de g ree

m isdemeanor

. Offic er Fisher then filed a criminal complaint ag ainst Halasa h in the Wil loughby Municipal Court. A mag istrate conducte d a p ro b ab l e cause hear ing and issued a war rant for Halasa h’s arr est. Halasa

h was ar re s t ed when he appea red in Cleveland Municipal Court on an unrela ted traff

ic matter and was rele ased afte r posting bond. The char g es ag ainst Halasa h wer e later reduc ed fr om a fourth- deg ree misdemeanor to a minor misdemeanor. After a benc h trial, Hala sah

was a cquitted. Halasa h then filed this § 1983 action ag ainst Offic er Fisher , Police Chief Way ne Ba umga rt, and the City of Kirtland, alleg ing violations of his rig hts under the Four th, Fi ft h , an d Four

teenth Amendments and claiming false arr est, malicious prosec ution, and failure to implement appropr iate policies, customs, a

nd prac tices. The defe ndants filed a motion for summary judgme nt, which the district court g rante d. The district court deter mined that the exis tence of probable cause fore closed Hala s ah ’s false arr est and malicious prosec ution claims and that he failed to demonstrate any constitutional viol ation by Chief B aumg art. The district court we nt on to conclude that Ha lasah’s failure to establish a constitutional violation prec luded municipal liability and entitled Offic er Fisher and Chief B aumg art to qualified immunity . This timely appea l followed. We r eview de novo the district c ourt’s decision to g rant summary judgme nt in favor of

the defe ndants. Brooks v. Rothe , 577 F.3d 701, 705 (6th Cir. 2009). Summary judgme nt is appropr iate “if the movant shows that there is no g enuine dispute as t o an y m at er i al fac t and the movant is entitled to judgme nt as a matter of law.” Fe d

. R

. Civ. P. 56(a)

. I n revie wing the district court’s decision, we view “the evidenc e and rea sonable infere nces there from in the light most favor able toNo. 11-3699 - 3 - the non-moving party .” Barker v. Goodrich , 649 F.3d 428, 432 (6th Cir. 2011) (interna l quotation marks omitted). As an initial matter, Halasa h’s opening brief bare ly m en t ions his claims ag ainst Chief Ba umga rt and the City of Kirtlan d

. “I t is well-e stablished that issues adver ted t o in a perfunctor

y

manner , unacc ompanied by some eff ort at develope d arg umentation, are deeme d waived.” Dillery

v. C i t y of Sandusky , 398 F.3d 562, 569 (6th Cir. 2005) (interna l quotation marks omitted). We conclude that Halasa

h has wa ived these c laims. Halasa h’s false arr est and malicious prosec ution claims ag ainst Offic er Fisher rema in. The district court conclude d that these claims failed beca use probable cause exis ted for Halasa h’s arr est and prosec ution. See Syke s v. Anderson , 625 F.3d 294, 305, 308 (6th Cir. 2010). Be cause an arr est based on a fac ially valid wa rr ant approve d by a mag istrate provides a complete defe nse, Halasa h
must prove that in order to procur e the war rant, Offic er Fisher “knowing ly and delibera tely , or with a reckless disreg ard for t he truth, made false st atements or omissions that cre ated a falsehood and such statements or omissions wer e materia l, or nece ssary , to the finding of probable cause .” Id

. at 305 (interna l quotation marks omitted). Offic er F isher’s c riminal complaint ag ainst Halasa h states: No person, shall rec klessly cause inconvenienc e, annoy ance , or alar m to another by doing any of the following : hindering or preve nting so as to interfe re with the rig hts of others, and by any act that serve s no lawful and rea sonable p u rp o s e to the offe nder[.]
To wit: Arg umentative, disruptive and co n t inually interrupted office rs while attempt i n g to conduct officia l business. Repea tedly asked to ref rain from these actions and r epea

tedly asked to lea

ve bef ore a ctually

doing so.
This being Disorder ly Conduct. A violation of Ohi o R evised Code 2917.11A4, a misdemeanor of

the 4th deg ree [.]
Offic er Fisher ’s complaint trac ks the lang uag e of Ohio Revised Code § 2917.11(A)( 4), but w ith a signific ant omission:No. 11-3699 - 4 - No per son shall r eckle ssly cause inconvenienc e, annoy ance , or ala rm to another by doing a ny of the following : . . . (4) Hindering or preve nting the m ovement of persons on a pub l ic street, road, high way, or right

-of- way, or to, f

rom , with in, or upon pu blic or private property , so as to interfe re w ith the rights of ot hers, and by any act that serve s no lawful and rea sonable purpose of the off ender

. Ohio Rev. Code § 2917.11(A)( 4) (empha sis added)

. Disorder ly conduct under Ohio Revised Code § 2917.11(A)( 4) require s that the defe ndant hindere d or preve nted someone’s mo v em en t —an element which is conspicuously absent from Offic er Fisher ’s complaint. Ba sed on Offic er Fisher ’s incident repor

t and the testimony prese nt ed at Ha lasah’s bench trial, there is no evidenc e that Halasa h hindere d or preve nted any one’s movement. I n g ranting Halasa h’s motion for judgme nt of acquittal, the Willoughby Municipal Court found that: Mr. Halasa

h’s actio n s d id not hinder or preve nt the movement of Offic er Fisher

. This conclusion is supported by the t es t i m o n y of Offic er Volk who indicated that Offic er Fisher voluntarily moved from a location in which he was speaking with one of the pare nts and walked over to eng ag e in a conversation with Mr. Halasa h. Although Offic er Fisher ’s testimony indicated that Mr. Halasa h’s actions cause d him to stop what he was doing and preve nted him from perf orming his duties, this is not a violation of the disorde rly conduct statute a

t issue.
A rea sonable juror could conclude that Offic er Fisher knowing ly and delibera tely , or with a rec kless disreg ard for the truth, omitted the movement element from the complaint and that this omission was materia l to the mag istrate’s f inding of probable cause
. I n addition, acc ording to Offic er F isher’s incident repor t, Halasa h was asked t o leave only

once and, afte r Offic er Fisher denied his reque st to shine a flashlig ht dow n the drivewa y so that he could see his way out, “lef t the scene without any further incident or discussion.” The incident repor t

cre ates a fac tual issue as to whether Offic er Fisher falsely stated in the criminal complaint that Halasa h was “ repe atedly

asked to lea

ve bef ore a ctually

doing so.” The district court conclude d that Offic er Fisher was entitled to rely on the war rant even if he lacke d probable cause to suspect Halasa h of the hindering -movement offe nse. “[K]nowledge of theNo. 11-3699 - 5 -
prec ise crime committed,” the district court rea soned, “is not n ec es s ar y to a finding of probable

cause provided that probable cause exis ts showing that a crime was committed by the defe ndant.” Radvansky v. City of Olmsted Falls , 395 F.3d 291, 307 n.12 (6th Cir. 2005). But neither the district
court nor the defe ndants p o i n t t o an y other crime for which Offic er Fisher had probable cause to

arr est Halasa

h. Halasa h did not (1) “[m] ake[] unrea sonable noise or an offe nsively coar se utteranc e

. . . or display

. . . g rossly abusive lang uag e to any person” or (2) “[i] insult[ ], taunt[] , or challeng [e] another , under circ umstances in w hich that conduct is likely to pr ovoke a violent r esponse.” Ohio Rev. Code § 2917.11(A)( 2), (3). Ohio courts have interpre ted both pr ovisions to prohibit f ighting words only

. See State v. Hoffman , 387 N. E

. 2 d 2 3 9 , 2 4 2 (Ohio 1979); State v. Schiesswohl , No. 44196, 1982 WL 2 3 87, at *1 (Ohio App. J une 3, 1982). Fisher himself admitted at Halasa h’s criminal trial that Ha lasah ne ver use d “fig hting wor ds.” The district court was there fore incorre ct to say that Fisher

was indisputably

entitled to rely

on the war

rant. For the fore g oing rea sons, we AFF I RM the district cour t ’s decision to g rant summary judgme n t as t o C h i ef Ba umga rt and the City of Kirtland. We REVERSE, howeve r, the district court’s holding that Offic er Fisher was entitled to rely on the arr est war rant. Genuine disputes of fac t

rema in on that issue. That said, we l ea ve it to the district court to decide whether other defe nses

war rant summary judgme nt in favor of Offic er Fisher

. T h is case is REMANDED for further consideration.