Zimmerman v. Knight

421 F.Supp.3d 514

Tricia ZIMMERMAN, Plaintiff,

v.Jennifer KNIGHT, et al., Defendants.

Jeffrey Lazar, Plaintiff,

v.Jennifer Knight, et al., Defendants.

Case No. 2:15-cv-3115

Case No. 2:16-cv-195

United States District Court, S.D. Ohio, Eastern Division.

Signed November 14, 2019

John C. Camillus, Law Offices of John C. Camillus, LLC, Columbus, OH, Zachary Swisher, Sybert, Rhoad, Lackey & Swisher, LLC, Powell, OH, Istvan Gajary, Peterson Conners LLP, Dublin, OH, for Plaintiff.

Cynthia L. Peterson, Columbus City Attorney's Office, Pamela J. Gordon, City of Columbus—2 Department of Law, Columbus, OH, for Defendants.

OPINION AND ORDER

SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

This matter is before the Court upon Defendant David Barrowman's Motion for Summary Judgment (ECF No. 61), Plaintiff Jeffrey Lazar's Brief in Opposition to Defendant's Motion for Summary Judgment (ECF No. 67), and Defendant's Reply Memorandum in Support of his Motion for Summary Judgment (ECF No. 71). For the reasons that follow, the Court GRANTS Defendant's Motion.

I. PROCEDURAL HISTORY

On December 28, 2015, Officer Tricia Zimmerman filed a lawsuit (2:15-cv-3115) against several members of the Columbus Division of Police and the City of Columbus alleging First Amendment retaliation, Due Process violations, gender discrimination, and Title VII violations.¹ On March 2, 2016, Officer Jeffrey Lazar filed a separate lawsuit (2:16-cv-195) against similar Defendants, which arose from the same facts as Officer Zimmerman's lawsuit. Officer Lazar alleged that Defendants engaged in First Amendment retaliation against him and violated his Fourth Amendment rights. The Court consolidated the lawsuits on May 10, 2016. (ECF No. 5).²

Thereafter, several cross-motions for summary judgment were filed by the parties. On March 29, 2019, the Honorable Michael H. Watson issued an Opinion and Order ruling on the motions (ECF No. 55), after which the only surviving claims are Officer Zimmerman's hostile work environment claim against the City of Columbus and Officer Lazar's Fourth Amendment claim against Sergeant David Barrowman. Pertinently, in addressing the cross-motions for summary judgment as to Officer Lazar's Fourth Amendment claim, the Court concluded:

In sum, Sergeant Barrowman's search was not a proper [ O'Connor v. Ortega , 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) ] search because, in the Sixth Circuit, the workplace search exception does not apply to searches of purely personal, non-workplace, items. However, it was not clearly established in November 2014 that O'Connor searches are constrained to workplace items. Thus, Sergeant Barrowman is entitled to qualified immunity if his search comported with the O'Connor standard. The Court cannot determine based on the current briefing whether the search satisfied O'Connor's "reasonableness in scope" requirement or, if not, whether it was clearly established that his search was unreasonable in scope. Moreover, the Court cannot determine whether the search satisfied the clearly established law regarding private searches or consent to search. As such the Court cannot rule on the motions for summary judgment regarding Lazar's Fourth Amendment claim, and the Court DENIES both motions at this time. The Court intends to set this case for mediation and, if mediation is unsuccessful, will order full re-briefing of the Fourth Amendment issue.

(Opinion, 42–43, ECF No. 55). The cases were subsequently transferred to the undersigned. (ECF No. 56).

On August 8, 2019, the parties unsuccessfully attempted mediation. As such, this Court granted the parties leave to file renewed motions for summary judgment on the Fourth Amendment issue left open by the Court in its March 29 Opinion. On August 30, Sergeant Barrowman filed his Motion for Summary Judgment (ECF No. 61). Officer Lazar filed his Memorandum in Opposition on September 27 (ECF No. 67). Sergeant Barrowman filed his Reply on October 11 (ECF No. 71). Defendant's renewed Motion is now ripe for review.

II. RELEVANT FACTS

On November 5, 2014, Emily Lazar, then-wife of Columbus Division of Police ("CPD") Officer Jeffrey Lazar ("Plaintiff"), filed a citizen complaint with CPD's Internal Affairs Bureau ("IAB"). (Interview Transcript, 1, ECF No. 61-1). IAB is the CPD unit charged with investigating complaints involving Division personnel. (Barrowman Aff., ¶ 3, ECF No. 61-1). "A complaint is an allegation of misconduct that, if true, may be a violation of law, Division Rule of Conduct, or Division policy." (Id. ). Ms. Lazar relayed to IAB that she believed Plaintiff and CPD Officer Tricia Zimmerman were involved in a sexual affair while on the job. (Interview Tr., 1). There is no dispute that if an officer engages in sexual activity while on duty, he is in violation of CPD's Rules of Conduct. (Lazar Depo. Vol II, 9, ECF No. 25-14). After speaking briefly with another officer on the phone, Ms. Lazar met with CPD Sergeant David Barrowman ("Defendant") for an administrative interview. (Interview Tr., 1). At that time, Defendant was an IAB investigator, a position he held for approximately ten years. (Barrowman Aff., ¶ 2, ECF No. 61-1).

During the interview, Defendant learned that on November 4, 2014, Ms. Lazar drove to Officer Zimmerman's house. (Interview Tr., 2–3). After no one answered the door, she walked over to Plaintiff's car, which was parked outside. (Interview Tr., 3). Five to ten minutes later, Plaintiff came out of Officer Zimmerman's house and Plaintiff and Ms. Lazar got into his car to talk. (Id. ; Lazar Decl., ¶ 8, ECF No. 67-1). Once in the car, Ms. Lazar located a cell phone on Plaintiff's person that was different from the cell phone he used to call and text Ms. Lazar. (Interview Tr., 2–4; Lazar Depo. Vol I, 33–35, ECF No. 25-13). Ms. Lazar proceeded to take the cell phone without Plaintiff's permission. (Lazar Decl., ¶ 8). Although Plaintiff requested multiple times to have the phone returned, Ms. Lazar refused. (Interview Tr., 5; Lazar Decl., ¶ 8). While Ms. Lazar had become aware of the existence of this second cell phone in mid to late August 2014, Plaintiff previously told Ms. Lazar the phone belonged to someone else. (Interview Tr., 2).

Ms. Lazar brought Plaintiff's second personal cell phone with her to CPD on November 5. (Id. at 5). Using a password to open it, Ms. Lazar showed Defendant and CPD Sergeant Dean Worthington, who was also present for the interview, the contents of the phone, pointing out text messages and photographs that she believed supported her allegations. (Barrowman Aff., ¶ 4, ECF No. 61-1). Ms. Lazar indicated that she read through "[a] good bit of the messages from [Plaintiff] to [Officer Zimmerman]" including five to ten text messages between the officers that led her to believe that the two were having sex while on duty. (Interview Tr., 4). According to Ms. Lazar, there was "more than that" but that "[t]here's 5-10 that actually stood out ... definitely" spanning July 2014 to November 5, 2014. (Id. ). Specifically, Ms. Lazar pointed to the times the messages occurred and comments like, "do you want to meet at the normal spot?" after one or both indicated they were "just clearing up on a [police] run" as evidence that Plaintiff and Officer Zimmerman were engaging in sexual acts on duty. (Id. at 6).

At the conclusion of the interview, Defendant had an IT officer download "all the contents of the cell phone ... Mrs. Lazar had referred to and shown [him], all the text messages and photos, not the entire contents of the cell phone[.]" (Barrowman Aff., ¶ 2, ECF No. 61-2). Similarly, in his deposition, Defendant stated: "[Mrs. Lazar] provided me ... information that I thought was useful in our investigation. So that information, I had a copy made." (Barrowman Depo., 34, ECF No. 25-9). Based on the investigative file provided to Plaintiff, CPD downloaded approximately 2,731 pages of text messages, photographs, web browser history, and call history spanning June 2014 to November 2014 from Plaintiff's cell phone. (Mobile Phone Examiner Plus Report, ECF Nos. 68-1–5; Lazar Decl., ¶ 6). The phone was returned to Ms. Lazar before she left the station. (Barrowman Depo., 32).

Although not captured in the audio recording or transcript of the interview, Defendant testified during his deposition that Ms. Lazar expressed that it was her understanding that the phone was communal property and that she was not required to return the phone to Plaintiff. (Barrowman Depo., 28–29). Defendant also claimed that Ms. Lazar told him she paid for the cell phone, but according to Plaintiff, "it was [his] personal cell phone" and he "paid for the cell phone personally." (Id. at 50; Lazar Decl., ¶ 7). Plaintiff stated during his deposition that he first purchased the phone for "work purposes" to communicate with confidential sources and then started using it to communicate covertly with Officer Zimmerman without his wife finding out. (Lazar Depo. Vol I, 31–32). According to Plaintiff, his relationship with Officer Zimmerman began sometime in February 2014. (Id. at 48).

III. ANALYSIS

Defendant filed a renewed Motion for Summary Judgment on the grounds that his search of Plaintiff's cell phone was permitted pursuant to three exceptions to the Fourth Amendment's protection against warrantless searches. Defendant also argues that even if the search did violate the Fourth Amendment, he is nevertheless entitled to qualified immunity.

A. Legal Standard

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue exists if the nonmoving party can present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos. , 8 F.3d 335, 339–40 (6th Cir. 1993). In other words, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson...