Police, The Fourth Amendment, Qualified Immunity

Judge Algenon Marbley holds police stonewalling against them

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Case:  Billups v. Scholl, Dist. Court, SD Ohio 2016


. . .  Billups asked for a record of the stop and Sergeant Podolski told her where she could go to request that record, which she said she had previously been told she would not be able to obtain because she was not arrested. (Id. at 40-42.)

At Sergeant Podolski’s suggestion, Billups visited the Public Records Unit of CDP that same day. (Public Records Request, Doc. 46-1.) She requested a patrol record for the March 19, 2011 traffic stop and wrote “Carter” under the space for “Investigative Detective/Unit” on the request form. (Id.) Although CDP Public Records Officer Amy Morris, who processed the request, did not find any responsive records in her first few searches because Billups’ name did not appear on any reports, she eventually contacted Billups on the telephone to learn more details about the incident and was able to find a report on the stop. (Affidavit of Amy Morris, Doc. 46-36 at ¶¶ 15-18.) On August 2, 2011, Officer Morris notified Billups that the report was available, and Billups picked it up on August 17, 2011. (Id. at ¶ 25; Public Records Invoice, Doc. 46-5.) The Computer Aided Dispatch Report that CDP gave to Billups did not contain the names of any officers. (Docs. 46-2; 46-3.)

On February 9, 2012, Billups submitted another request for documents to the Public Records Unit. (Public Records Request, Doc. 46-6.) This time, she requested a “[c]opy of printout from IAB.” (Id.) The Public Records Unit made her IAB intake report available the next day and she picked it up four days later. (Affidavit of Jo Anne Cunningham, Doc. 46-32 at ¶¶ 31-33; Doc. 46-7.) It did not contain the names of any officers. (Id.)

On August 22, 2012, Billups’ attorney, W. Jeffrey Moore, sent a public records request to CDP requesting the following: “any information regarding Rhonda Billups, including all medical records, injury records, jail reports, etc. Specifically any and all records regarding the stop on March 19, 2011 at approximately 7 p.m.” (Doc. 46-9.) Records Technician William McPherson processed the request[6] but found no record responsive to the request and sent Moore a letter explaining as such. (Doc. 46-10.) Because the Bonneville did not belong to Billups and Billups was not arrested after the stop, he did not find any records with her name. Moore did not follow up immediately with CDP after receiving McPherson’s letter. Eventually, Moore hired a private investigator, who submitted a records request on November 5, 2013 for the names of the officers and also spoke with Officer Morris, whom he knew personally. (Public Records Request, Doc. 52-1, Ex. F; Affidavit of W. Jeffrey Moore, Doc. 52-2 at ¶¶ 4-5.) Billups also submitted her own request to CDP on that same day. (Public Records Request, Doc. 52-1, Ex. G.)

. . .

There is no evidence that Defendant redacted the names of any officers or purposely hid the names to avoid litigation. And the fact that Billups wrote Defendant Carter’s last name on her first request might suggest that she already knew his full name. But Plaintiff made several records requests and diligently followed up to obtain them. She even continued to do so after one of her requests yielded no response after it was directed to the Police Records Unit, which apparently does not communicate with the Public Records Unit that had already processed a previous request from Billups. (See McPherson Aff., Doc. 46-35; Morris Aff., Doc. 46-36.) Although the records were neither detailed nor specific, the Court finds that a reasonable jury could believe that she had exercised due diligence, particularly because she was dealing with mental-health challenges during this period and may have lacked a sophisticated understanding of how to file a records request.

Although Defendant makes much of the fact that the cases on which Plaintiff relies to support her argument for equitable tolling present egregious instances of attorney misconduct that distinguish them from this case, the Court finds that these cases stand for the proposition that equitable tolling is appropriate when the plaintiffs did not have the ability to obtain information vital to their claims. See Robertson, 624 F.3d at 786; Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003). Here, too, construing the evidence in her favor, Plaintiff could not obtain the names of the officers without CDP providing them, and she attempted several times to do so. Moreover, even though there is no evidence that CDP purposely withheld the officers’ names, there is evidence in the record that CDP staff knew that Billups was considering litigation against the officers, and that, at the very least, Officer Morris knew Officer Carter’s name because she contacted him when responding to the request. (See Morris Aff., Doc. 46-36 at ¶¶ 18, 20, 31.) Given that CDP is presumably quite familiar with requests for record relating to possible litigation because such litigation is not infrequent, it would be reasonable for a jury to conclude that CDP records technicians would include the names of officers in a request for records relating to a police encounter. A jury could also find that it is unreasonable for none of the many CDP officials Billups contacted to have explained to her that her name would not have appeared in the traffic stop record because she was not arrested and did not own the Bonneville. Such an explanation could have enabled her to target her search more precisely in future requests and timely file her lawsuit.

Because only CDP had access to the information regarding the names of the officers who conducted the stop and Billups repeatedly attempted to obtain information related to the stop, the Court finds that there is a genuine issue of material fact regarding whether the two-year statute of limitations should be equitably tolled.

Written by Burgers Allday

July 31, 2016 at 1:44 pm

Posted in Uncategorized

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