                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0517n.06

                                         Case No. 13-4321
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                           Jul 22, 2015
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


BRIAN D. PATTERSON and DEREK J.                      )
PATTERSON,                                           )
                                                     )
       Plaintiffs-Appellants,                        )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
v.                                                   )       THE NORTHERN DISTRICT OF
                                                     )       OHIO
CITY OF AKRON, OHIO, et al,                          )
                                                     )
       Defendants-Appellees.                         )       OPINION
                                                     )


BEFORE: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.*

       BERNICE BOUIE DONALD, Circuit Judge. Plaintiffs-Appellants, brothers Derek

and Brian Patterson, brought this civil rights action alleging that five City of Akron police

officers, their superiors, and the City of Akron violated their constitutional rights through the use

of excessive force. On the night of May 27-28, 2006, during Memorial Day weekend, the

brothers were patrons at a bar in downtown Akron, Ohio. Officers arrested Brian Patterson after

twice telling him to stop sitting or leaning on a police cruiser. A large crowd gathered and chaos

ensued. Under circumstances that remain disputed, Derek Patterson attempted to intercede

during his brother’s arrest. It is undisputed that Brian Patterson was tased by an officer at least


*
 The Honorable Jon P. McCalla, United States District Judge for the Western District of
Tennessee, sitting by designation.
Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


once and Derek Patterson was tased by officers at least four times. The district court granted

summary judgment to the Defendants-Appellees on all of Brian Patterson’s claims, finding that

he had waived any potential civil claims against the officers and the City in a valid Release-

Dismissal Agreement entered at the time of Brian’s plea to a misdemeanor charge of resisting

arrest. After the district court granted summary judgment to most of the Defendants-Appellees

on most of Derek Patterson’s claims, a jury returned a verdict in favor of the two remaining

defendant officers.

       Brian Patterson appeals the district court’s enforcement of the Release-Dismissal

Agreement. Derek Patterson appeals the district court’s ruling that an officer’s Taser Report was

inadmissible at trial. We find (1) Brian’s Release-Dismissal Agreement is unenforceable, and

therefore reverse the district court’s grant of summary judgment to the officers, and (2) the

district court erred in excluding the officer’s Taser Report at Derek’s trial, and that error was not

harmless. We therefore REMAND the matter for new trial as to both plaintiffs.

                                                I.

                                                A.

       Derek (“Derek”) and Brian (“Brian”) Patterson are natives of a suburb of Akron, OH.

After graduating from Ohio University in 2004, older brother Derek moved to Bradenton,

Florida, where he became a math teacher at a high school in Sarasota, Florida and a youth

counselor at the Sarasota Boys and Girls Club. (R. 51-7, Derek Dep., PageID #559.) Brian, after

two years at Ohio University, left school and moved to Florida to live with Derek. (R. 51-8,

Brian Dep., PageID #579-80.) He worked as a full-time landscaper at the Gulf & Bay Club in

Sarasota.




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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


         The events in question took place in the early morning hours of May 27-28, 2006, over

Memorial Day weekend. Derek and Brian had returned to Akron to spend the holiday with their

family. Sometime between 11:00 and 11:30 pm, Derek and Brian arrived separately with friends

at Fat Tuesday Bar in downtown Akron, near the University of Akron. (R. 51-8, Brian Dep.,

PageID #51-8; R. 138, Trial Tr. Vol 1-A, PageID #1735-36.) Fat Tuesday neighbors Posh Night

Club, and patrons of both venues often gather on the sidewalk to mingle, particularly when there

is nice weather, as there was that holiday weekend. (R. 51-8, Brian Dep., PageID #581, 583; R.

138, Trial Tr. Vol 1-A, PageID #1740; R. 51-13, Monaghan Dep., PageID #624; R. 140, Trial Tr.

Vol. 3, PageID #1930.) Derek left Fat Tuesday around 2:15 am, leaving Brian inside. (R. 138,

Trial Tr. Vol 1-A, PageID #1738-40.) Derek went outside and leaned against a police cruiser

parked at the curb, facing the bars and watching patrons exit. (Id. PageID #1740, 1742.) Derek

was leaning against the cruiser for about five minutes; when Fat Tuesday closed, Brian exited

and joined Derek in leaning against the cruiser. (Id. Page #1741; see also R. 51-8, Brian Dep.,

PageID #582-83.) After a couple minutes, Derek left to go speak to someone he had met in the

bar earlier, leaving Brian leaning against the cruiser and talking to his friend Kara Monaghan

(“Monaghan”). (R. 138, Trial Tr. Vol 1-A, PageID #1741-42; R. 51-8, Brian Dep., PageID

#582.)

         Akron Police Sergeant Timothy Givens and Officer Michael Rinn were working the

Downtown Bar District patrol assignment that evening. (R. 140, Trial Tr. Vol. 3, PageID #1921-

25.) Officer Daniel Bickett was working off-duty security at Posh Night Club. (Id. PageID

#2157.) All three officers were standing together on the sidewalk as Fat Tuesday and Posh

closed. (Id. PageID #1928-29, 2162.) Several hundred people were outside the bars. (Id.

PageID #1930.) Sergeant Givens and Officer Bickett testified that they observed Brian sitting on


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


the trunk of Sergeant Givens’ cruiser with his feet dangling, and that Sergeant Givens walked

over to tell Brian to get off his vehicle. (Id. PageID #1928-30; R. 51-12, Bickett Dep., PageID

#618.) The parties agree Brian stood up without saying anything. (R. 51-8, Brian Dep., PageID

#583; R. 51-10, Givens Dep., PageID #605; R. 140, Trial Tr. Vol. 3, PageID #1930.)

       Sergeant Givens testified that as he walked away, he turned and saw Brian leaning on the

cruiser. (R. 140, Trial Tr. Vol. 3, PageID #1931-32.) Sergeant Givens testified that he again told

Brian to get off his vehicle and began ordering the crowd to leave the area. (Id.)   According to

Sergeant Givens, Brian took a puff of his cigarette and told Sergeant Givens that he was not

leaving. (Id. PageID #1932.) Sergeant Givens testified he told Brian he could either leave or go

to jail, to which Brian allegedly replied, “I’m not leaving and I’m not going to jail.” (Id. PageID

#1934.) Officer Bickett also testified that Brian said this. (R. 51-12, Bickett Dep., PageID

#619.) Sergeant Givens, believing Brian to be intoxicated and observing him take a defensive

posture, decided to arrest Brian. (R. 140, Trial Tr. Vol. 3, PageID #1934-35.) On Sergeant

Givens’ instruction, Officers Rinn and Bickett approached to assist Sergeant Givens in

effectuating the arrest. (Id. PageID #1935.)

       Brian testified that, about thirty seconds after Sergeant Givens first approached him,

Sergeant Givens returned and asked him “why’d you do that,” to which Brian did not respond

because he did not know what Sergeant Givens was referring to. (R. 51-8, Brian Dep., PageID

#583-84.) Sergeant Givens then told the other officers behind him to arrest Brian. (Id. PageID

#584.) Monaghan testified that, after Brian stood up after first being approached by Sergeant

Givens, she and Brian talked for “a couple more minutes” before Brian inadvertently leaned

against the cruiser again. (R. 51-13, Monaghan Dep., PageID #625.) Monaghan testified that

that’s when the police “grabbed [Brian] up” and put his hands behind his back. (Id.)


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


       Monaghan ran over to Derek and told him Brian was being arrested. (Id.; see also R.

138, Trial Tr. Vol 1-A, PageID #1742-43.) Derek walked over and saw Brian standing between

Officers Rinn and Bickett with his hands handcuffed behind him. (R. 138, Trial Tr. Vol 1-A,

PageID #1743.) Derek approached Officer Rinn, told him Brian was his brother, and asked what

was happening. (R. 51-7, Derek Dep., PageID #566; R. 138, Trial Tr. Vol 1-A, PageID #1743.)

Officer Rinn told Derek that Brian was being arrested and needed to get into the police cruiser.

(R. 51-7, Derek Dep., PageID #566; R. 138, Trial Tr. Vol 1-A, PageID #1743.) Derek asked

Officer Rinn for permission to talk to Brian so that he could “ease the situation,” which Officer

Rinn granted. (R. 51-7, Derek Dep., PageID #566-67; R. 138, Trial Tr. Vol 1-A, PageID #1744;

R. 51-8, Brian Dep., PageID #585.)

       According to Derek, he said to Brian, “Look, this man is being reasonable. Get in this

police cruiser. Let me talk to him. We might all be able to go home tonight.” (R. 138, Trial Tr.

Vol 1-A, PageID #1744-45.) Brian responded by saying he did not know why the officers

handcuffed him. (Id. PageID #1745.) When Brian said this, Sergeant Givens allegedly yanked

Brian by his left arm from the sidewalk into the street and tried to body slam him. (Id.) Officer

Bickett assisted Sergeant Givens in moving Brian. (R. 51-7, Derek Dep., PageID #567-68.)

When Derek followed Sergeant Givens and Brian into the street, Officer Rinn grabbed Derek by

his right arm; when Derek pulled his arm away, Officer Rinn told him not to get involved. (R.

138, Trial Tr. Vol 1-A, PageID #1753.)

       According to Sergeant Givens and Officer Bickett, Brian resisted their efforts to place

him in Sergeant Givens’ police cruiser. (R. 140, Trial Tr. Vol. 3, PageID #1938-93; R. 141,

Trial. Tr. Vol. 4, PageID #2174-76.) Officer Bickett testified he encouraged Brian to “sit down

in the cruiser” so that they could “work this out.” (R.141, Trial. Tr. Vol. 4, PageID #2176.)


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


Officer Bickett further testified that, during this time, Officer Rinn was trying to hold back the

crowd that was forming around the officers and moving in closer.             (Id.)   Because of the

encroaching crowd, Sergeant Givens and Officer Bickett decided to move Brian from the

passenger side of the cruiser to the driver’s side. (R. 140, Trial Tr. Vol. 3, PageID #1939; R.141,

Trial. Tr. Vol. 4, PageID #2176-78.) Now on the driver’s side, Brian again resisted, refusing to

bend down to get into the cruiser and kicking his legs out. (R. 140, Trial Tr. Vol. 3, PageID

#1939; R.141, Trial. Tr. Vol. 4, PageID #2178.) Derek perceived Brian’s actions as him trying

to “stabilize himself so as not to be slammed on his face.” (R. 51-7, Derek Dep., PageID #568;

see also R. 138, Trial Tr. Vol 1-A, PageID #1753-54.) Likewise, Brian also perceived that the

officers were trying to slam him to the ground. (R. 51-8, Brian Dep., PageID #585.)

       According to Sergeant Givens and Officer Bickett, a crowd of about 10 to 12 people had

followed the officers to the driver’s side of the cruiser, and was now pulling at the officers and at

Brian. (R. 140, Trial Tr. Vol. 3, PageID #1939; R.141, Trial. Tr. Vol. 4, PageID #2178-80.)

According to Monaghan, the crowd was predominately white, and people in the crowd were

shouting that the officers were racist. (R. 51-13, Monaghan Dep., PageID #627-28.)1 According

to Derek, Officer Bickett, and Anthony Gary (“Gary”) (a witness, possible participant, and friend

of Derek and Brian), the crowd was also shouting, “police brutality.” (R. 51-7, Derek Dep.,

PageID #568-69; R. 51-9, Gary Dep., PageID #598; R.141, Trial. Tr. Vol. 4, PageID #2178.)

       The crowd separated Sergeant Givens from Officer Bickett and Brian, and both officers

independently radioed for assistance. (R. 140, Trial Tr. Vol. 3, PageID #1940-41; R.141, Trial.



1
 Monaghan states all the officers were white, and that Brian is biracial. (R. 51-13, Monaghan
Dep., PageID #627-28.) This would also make Derek biracial, as he and Brian share both of the
same parents. (Appellant’s Br. at 9.) Derek and Brian are identified as African American in
their appellate brief. (Id. at 13.)
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


Tr. Vol. 4, PageID #2181-82.) Officer Karl Burton responded to the call almost immediately.2

Sergeant Givens testified that the crowd then numbered 15 to 20 people, and that he, Officer

Bickett, and Brian were now in the middle of the street. (R. 140, Trial Tr. Vol. 3, PageID

#1951.) When Officer Burton arrived, he helped Officer Bickett secure Brian. The crowd still

surrounded them. (R. 141, Trial. Tr. Vol. 4, PageID #2182.) Officer Bickett testified that he

attempted to hold the crowd back with forearm strikes, kicks, and “sparking” his taser three to

four times. (Id. PageID #2182-83.)

       Sergeant Givens and Officer Bickett provide conflicting accounts regarding what

happened next. Sergeant Givens testified that, when Officer Burton grabbed ahold of Brian,

Gary jumped on Officer Burton’s back. (R. 140, Trial Tr. Vol. 3, PageID #1951.) Sergeant

Givens states he tased Gary, handcuffed him, and put him into a patrol wagon. (Id. PageID

#1951-55.) Brian’s testimony somewhat corroborates this version of events; specifically, Brian

testified that he saw Gary on the ground after being tased, with an officer standing in front of

him. (R. 51-8, Brian Dep., PageID #586.)3

       Officer Bickett, however, testified that Derek was “hanging on [Officer] Burton’s back

trying to pull [Officer Burton] off Brian.” (R.141, Trial. Tr. Vol. 4, PageID #2183-84, 2269.)

Officer Bickett then let go of Brian and unsuccessfully attempted to handcuff “Derek,” 4 who

stiffened and pulled away from him. (Id. PageID #2184.) By this time, Officer Kevin Evans had

arrived and proceeded to assist Officer Bickett. (Id. PageID #2184-85.) The officers, standing


2
  Other officers were in the immediate area, patrolling other bars.
3
  Gary testified that he observed the officers dragging Brian into the street. (R. 138, Trial Tr. Vol
1-A, PageID #1700-01.) Gary stated that, as the officers were dragging Brian, Gary stepped into
the street and began filming the scene with his cellphone camera. (Id. PageID #1701.) Gary
further testified that he was tased as he was filming. (Id.)
4
  It remains unclear whether this individual actually was Derek. Both Sergeant Givens and Derek
testified that the individual who attacked Officer Burton was not Derek.
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


on either side of “Derek,” got him down on all fours; Officer Bickett tried to pull “Derek’s” arm

behind his back. (Id. PageID #2185-86.) Officer Patrick Didyk, who was also on patrol in the

area, arrived and began to assist Officers Bickett and Evans’ efforts to restrain “Derek.” (Id.

PageID #2321-22.) Suddenly, Officer Bickett was knocked off “Derek.” (Id. PageID #2186.)

Officer Bickett was unaware of who or what hit him. (Id.)

          Meanwhile, Brian was tased in the chest by Officer Evans. (R. 51-8, Brian Dep., PageID

#586; R. 51-15, Brian Decl., PageID #640(¶4).) In Brian’s account, there are no interceding

events between when he noticed Gary on the ground after Gary was tased, and when Brian

himself was tased—allegedly without provocation. According to Officer Evans, however, a

handcuffed Brian broke away from Officer Burton, ran toward Derek and Officers Evans and

Bickett, and struck Officer Bickett in the head with his knee, causing Officer Bickett to fall over.

(R. 51-14, Evans Dep., PageID #635-36; R. 140, Trial Tr. Vol. 3, PageID #2081-83.) At that

point, Officer Evans stood up and deployed his taser in “dart mode”5 on Brian. (R. 51-14, Evans

Dep., PageID #636; R. 140, Trial Tr. Vol. 3, PageID #2081-84.)

          Brian fell face first to the ground. (R. 51-14, Evans Dep., PageID #636-37; R. 140, Trial

Tr. Vol. 3, PageID #2084.) Brian testified that after he fell to the ground—still handcuffed from




5
    In Bryan v. MacPherson, the Ninth Circuit explained that in dart mode a taser

          uses compressed nitrogen to propel a pair of “probes”—aluminum darts tipped
          with stainless steel barbs connected to the [taser] by insulated wires—toward the
          target at a rate of over 160 feet per second. Upon striking a person, the [taser]
          delivers a 1200 volt, low ampere electrical charge. . . . The electrical impulse
          instantly overrides the victim’s central nervous system, paralyzing the muscles
          throughout the body, rendering the target limp and helpless.

630 F.3d 805, 824 (9th Cir. 2010) (footnote omitted).


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


earlier in the evening—Officer Evans continued to “drive stun”6 him in the back, left leg, and

buttocks. (R. 51-8, Brian Dep., PageID #587, 589.) Brian further testified that an unidentified

officer had his knee on Brian’s head and gouged him in his left eye. (Id. PageID #586.) Officer

Evans testified he only tased Brian once.

          In Derek’s account, he did not enter the melee until after Officer Rinn refused to

intercede and after he observed Brian being tased by Officer Evans. (Appellant’s Br. at 12; R.

51-7, Derek Dep., PageID #568; R. 138, Trial Tr. Vol 1-A, PageID #1753-54.) Derek testified

that, as he attempted to run toward Brian, he was tackled by an officer—presumably Officer

Didyk—and fell to his hands and knees.7 According to Derek, Officer Didyk and Officer Bickett

then each held onto one of his arms and tried to pull Derek’s arms out from under him.

(Appellant’s Br. at 13) (citing R. 51-7, Derek Dep., PageID #570-71.)

          However Derek became involved, the result is that Derek ended up on the ground and

either could not or would not lie flat on his stomach. Derek testified that he could not produce

his hands and arms because the officers were on his back and doing so would have caused him to

fall face-first into the concrete. (R. 51-7, Derek Dep., PageID #571.) The two officers testified

that Derek would not submit. Officer Bickett testified that he administered a single-cycle drive

6
    In Mattos v. Agarano, the Ninth Circuit explained:

          When a taser is used in drive[]stun mode, the operator removes the dart cartridge
          and pushes two electrode contacts located on the front of the taser directly against
          the victim. In this mode, the taser delivers an electric shock to the victim, but it
          does not cause an override of the victim's central nervous system as it does in
          dart-mode.

661 F.3d 433, 443 (9th Cir. 2011).
7
  In their response in opposition to Defendants’ motion for summary judgment, Derek argued
that, by process of elimination, it could only have been Officer Didyk who tackled Derek
because Derek was only tackled by one officer; Officer Didyk admitted to being on top of Derek;
and Officer Bickett testified he did not tackle Derek. (R. 51, Pls.’ Resp. Opp’n Summ. J.,
PageID #495 n.6.)
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


stun with his taser to the back of Derek’s left thigh, and Officer Didyk testified that he

administered a single-cycle drive stun with his taser to Derek’s left lower back. (R. 141, Trial

Tr. Vol. 4, PageID #2187, 2325.) Officer Didyk testified that Derek then laid flat on his

stomach, but refused the Officers’ commands and efforts to produce his hands from under his

torso to be handcuffed. (Id. PageID #2326.) Officer Bickett testified he deployed a second,

single-cycle drive stun to Derek’s right shoulder blade, and Officer Didyk testified that he

deployed a second, single-cycle drive stun to Derek’s left thigh. (Id. Page ID # 2191, 2327). At

that point, the two officers were able to gain control of Derek’s arms and handcuff him. Derek

testified, however, that as he lay on the ground Officer Bickett continued to drive stun his neck

(twice), shoulder (twice), and the back of his head (once), for a total of five stuns after he was

handcuffed and on the ground. (R. 138, Trial Tr. Vol. 1-A, Page ID #1760; R. 51-7, Derek Dep.,

PageID #571-572; RE 51-18, Derek Decl. Page ID # 660-662(¶5).).

                                                B.

       On May 30, 2006, Derek was indicted on charges of disorderly conduct, obstructing

official business, and resisting arrest—all misdemeanors. He pled no contest to disorderly

conduct, Ohio Rev. Code § 2921.33, in September 2006, in exchange for the other charges being

dropped. (R. 39-14, Plea Proceedings Tr., PageID #402-03.)

       Brian was indicted for the felony of assault on a police officer, Ohio Rev. Code §

2903.13, and the misdemeanor of resisting arrest, Ohio Rev. Code § 2921.33. On January 16,

2007, Brian appeared for a plea hearing, where stand-in counsel represented him. Brian asserts

that, approximately 15 minutes before the hearing, stand-in counsel told him that an offer of a

no-contest plea to the misdemeanor had been made, but was conditioned on release of all civil

claims related to the officers’ actions. (Appellant’s Br. at 14.) Brian avers that twice he was told


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


not to worry about accepting the offer, because it was his first offense and he could expunge the

offense and, with it, the agreement. (R. 51-8, Brian Dep. Page ID # 589-90.) Brian agreed,

pleaded no contest to the misdemeanor and, in exchange for the dropping of the felony charge,

entered into a Release-Dismissal Agreement. On the record at the plea proceeding, Brian stated

that he agreed “not to institute any lawsuit against any of the police officers involved or the City

of Akron in this case.” (R. 39-13, Plea Proceedings Tr., PageID #387.)

          On May 28, 2008, Derek and Brian filed the instant civil rights lawsuit, alleging: (1) the

defendant officers (Givens, Rinn, Bickett, Evans, and Didyk)8 violated their rights under Title

VII, 42 US.C. §1983, and the Fourth Amendment; (2) the City of Akron, Chief Michael

Matulavich, and Lieutenant Melissa Schnee (“Lieutenant Schnee”), by their indifference,

implicitly authorized the unconstitutional conduct of the other defendants, failed to sufficiently

train the other defendants, and failed to supervise them; (3) defendants were involved in a

conspiracy, under 42 U.S.C. §1985, to violate Derek and Brian’s civil rights; (4) intentional

infliction of emotional distress; and (5) negligent training, supervision and retention.

          The district court bifurcated summary judgment proceedings in order to first resolve the

question of qualified immunity.       Patterson v. City of Akron, No. 5:08CV1300, 2009 WL

2733522, at *3 n.8 (N.D. Ohio Aug. 26, 2009). Defendants-Appellees filed a motion for

summary judgment on the basis of Brian’s waiver of his claims at the time of his plea, and on the

grounds that qualified immunity protected them from the brothers’ excessive force claim. (R.

39, Defs.’ Mot. Summ. J., PageID #218-250.) The district court granted summary judgment on

all of Brian’s claims and denied the officers’ claim to qualified immunity as to Derek. Patterson,

2009 WL 2733522, at *7, adhered to on reconsideration, No. 5:08CV1300, 2013 WL 1701578


8
    Officer Burton was not sued.
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


(N.D. Ohio Apr. 18, 2013). This Court affirmed the district court’s qualified immunity ruling.

Patterson v. City of Akron, Case No. 09-4131 (Order, March 9, 2011).

       The Defendants-Appellees then filed a second motion for summary judgment on Derek’s

§1983 municipal liability claim, the §1985 claim, and the Ohio state law tort claims. (R. 89,

Defs.’ Mot. Summ. J., PageID #1032-1055.) The district court granted the motion. Patterson v.

City of Akron, No. 5:08CV1300, 2012 WL 3913082, at *10 (N.D. Ohio Sept. 7, 2012). As a

result, all that remained was Derek’s §1983 excessive force claim against Officers Bickett and

Didyk. That claim proceeded to a five-day jury trial on September 16-20, 2013. The jury

returned a verdict in favor of the two officers.

                                                   II.

       We first address Brian’s claim that the district court erred in finding the Release-

Dismissal Agreement enforceable, and therefore in granting summary judgment in favor of the

defendants.

       Our review of a district court’s grant of summary judgment is de novo. See Medical Mut.

of Ohio v. k. Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir. 2008). Summary judgment is

appropriate “if the pleadings, the discovery and the disclosure materials on file, and any

affidavits ‘show that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.’” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (quoting

Fed. R. Civ. P. 56(a)). There is “no genuine issue for trial where the record ‘taken as a whole

could not lead a rational trier of fact to find for the non-moving party.’” Id. (quoting Matsushita

Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In deciding the motion, “the

district court must construe the evidence and draw all reasonable inferences in favor of the

nonmoving party.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008) (citing


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


Matsushita, 475 U.S. at 587). However, “the mere existence of a scintilla of evidence in support

of the non-moving party is insufficient to defeat a motion for summary judgment.” V & M Star

Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)).

       In Town of Newton v. Rumery, the Supreme Court held that release-dismissal agreements,

by which an accused agrees not to bring a § 1983 action in exchange for the dismissal of criminal

charges, are not per se invalid. 480 U.S. 386, 392 (1987). However, in order to be found valid

and therefore enforceable, the agreement must satisfy certain criteria.     Id. at 397-98. The

Supreme Court looked to three general considerations when determining whether enforcement of

a release-dismissal agreement is appropriate: whether it was entered into voluntarily; whether

there is evidence of prosecutorial misconduct; and whether enforcement furthered the public

interest. Id. In a concurrence, Justice O’Connor emphasized that “it is the burden of those

relying upon such covenants to establish that the agreement is neither involuntary nor the product

of an abuse of the criminal process.” Id. at 399 (O’Connor, J., concurring in part and concurring

in the judgment). The general considerations announced by the Rumery plurality, coupled with

Justice O’Connor’s additional point, have since become the governing law of this Circuit.

Specifically, in Coughlen v. Coots, this Court held:

       [B]efore a court properly may conclude that a particular release-dismissal
       agreement is enforceable, it must specifically determine that (1) the agreement
       was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3)
       enforcement of the agreement will not adversely affect relevant public interests.
       The burden of proving each of these points falls upon the party in the § 1983
       action who seeks to invoke the agreement as a defense.

5 F.3d 970, 974 (6th Cir. 1993). Applying this framework, we find that Defendants-Appellees

have not met their burden with respect to any prong of the Rumery analysis. We therefore


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


reverse the district court’s finding that Brian entered a valid, enforceable Release-Dismissal

Agreement.

       1. Voluntariness

       Under the first prong of the Rumery analysis, in order for a release-dismissal agreement

to be enforceable, the defendant officers must show that the agreement was the result of “an

informed and voluntary decision.”        Rumery, 480 U.S. at 393.        More specifically, the

voluntariness inquiry takes into consideration: (1) the sophistication of the criminal defendant;

(2) whether the defendant was in custody when he made the agreement; (3) whether the

defendant was represented by counsel who drafted the agreement; and (4) whether the defendant

had ample time to consider the agreement before signing it. Id. at 394. In her concurrence,

Justice O’Connor also counseled consideration of (5) the nature of the criminal charges and

(6) whether the agreement was formed under judicial supervision. Id. at 401-02 (O’Connor, J.,

concurring in part and concurring in the judgment).

       The district court found that each of these six factors weighed in favor of finding Brian

entered the Release-Dismissal Agreement voluntarily. Patterson, 2009 WL 2733522, at *3-5.

We disagree. Genuine issues of material fact as to whether these factors weigh in favor of a

finding of voluntariness preclude summary judgment in the Defendants-Appellees’ favor.9 See

Marshall v. City of Farmington Hills, 578 F. App’x 516, 522-23 (6th Cir. 2014); cf. Burke v.

Johnson, 167 F.3d 276, 285 (6th Cir. 1999) (holding that a party seeking to enforce an oral

release-dismissal agreement had to prove voluntariness by a preponderance of the evidence).



9
 In granting summary judgment to the Defendants-Appellees, the district court briefly noted that
“Brian’s version of the events differs significantly from that of the officers.” Patterson, 2009
WL 2733522, at *1. The district went on, however, to present a version of the facts which
appears to presume the truth of the officers’ account.
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


        We begin with the second Rumery factor, whether the defendant was in custody when he

made the agreement, because it is the simplest to address on the facts of this case. Brian was not

in custody at the time he entered into the agreement. Accordingly, this factor weighs in favor of

finding the agreement was voluntarily entered, as the district court found. Patterson, 2009 WL

2733522, at *4.

        As to the first factor, there is a genuine factual question as to whether Brian was a

sophisticated criminal defendant. He was 22-years-old at the time of these events, and had never

before been arrested or charged with a criminal offense. (R. 51-8. Brian Dep., PageID #578; R.

51-24, Journal Entry, PageID #682.) Further, because he had attended only a couple of years of

college and worked as a non-professional, he is quite unlike the plaintiff in Rumery, a

“sophisticated businessman” who was found to have voluntarily entered the release-dismissal

agreement at issue in his case. Rumery, 480 at 394; cf. Burke v. Johnson, 167 F.3d 276, 285 (6th

Cir. 1999) (finding that “[a]lthough Burke’s ‘sophistication’ may not be that of the educated

businessman defendant in Rumery,” voluntariness could be found because Burke had a modest

educational background, could read and write, and was “street wise” in that the relevant

encounter with the police “was not his first contact with the criminal justice system.”). The

district court considered some of this evidence of Brian’s inexperience, but found that Brian’s

assertion that he was not a sophisticated criminal defendant “has no merit given the clear

questioning of the state court judge and Brian’s answers, as reflected in the transcript of those

proceedings[.]” Patterson, 2009 WL 2733522, at *3. The relevant portion of the plea hearing

transcript, as cited by the district court, reads as follows:

        THE COURT: All right. Also as a condition of the plea bargain in this case that is
        in consideration of you being offered a plea to the misdemeanor and not the
        felony charge, it is the Court’s understanding that you have agreed in return for


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


        that consideration not to institute any lawsuit against any of the police officers
        involved or the City of Akron in this case; is that correct?

        THE DEFENDANT: Yes.

        THE COURT: Has anybody forced you, coerced you, or promised you anything
        in order to get you to make that decision?

        THE DEFENDANT: No.

        THE COURT: And that has been a decision made of your own volition and free
        will?

        THE DEFENDANT: Yes.

(R. 39-13, Plea Proceedings Tr., PageID #394.) This was the only evidence of sophistication

cited by the district court.

        We do not underestimate the significant role that plea colloquies such as this generally

play in our criminal justice system. These types of colloquies are often cited as proof that a

criminal defendant intelligently, knowingly, and voluntarily entered into a particular plea

agreement. Nonetheless, we do not think that a defendant’s one-word answers during a plea

colloquy, standing alone, are compelling evidence that he is sophisticated. Sophistication, in the

context of the Rumery analysis, speaks to whether the defendant had or should have had

sufficient knowledge of or familiarity with the criminal justice system such that we have faith

that he knew or should have known what he was bargaining for when he entered a release-

dismissal agreement. Given Brian’s relative youth, non-professional background, and lack of

prior experience with the criminal justice system, there is room to question whether he is the

kind of sophisticated criminal defendant contemplated by Rumery Court.

        This is especially true when one considers Brian’s arguments regarding the third Rumery

factor. There is a genuine factual issue in this case as to whether’s Brian’s lack of sophistication

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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


was exacerbated by his stand-in counsel’s lack of experience. Brian notes that, at the time of his

plea hearing, his substitute counsel had graduated from law school less than a year before the

hearing and had been licensed to practice for approximately eight weeks. (Appellant’s Br. at 21;

see also R. 51-22, Ohio Supreme Court Curriculum Vitae of Matthew Rizzi, PageID #678.)

Viewed in the light most favorable to him, it is reasonable to infer that the representation Brian

received at the hearing did not offset his own lack of sophistication regarding the criminal

process. Cf. Hill v. City of Cleveland, 12 F.3d 575, 578 (6th Cir. 1993) (finding that, “although

Hill lacked sophistication, unlike the criminal defendant in Rumery, his lack of sophistication

was offset by the presence of a knowledgeable and experienced defense attorney.”) That is to

say, although Brian “was represented by counsel who drafted the agreement,” Rumery, 480 U.S.

at 394,—or at least participated in the drafting of the agreement—the counsel in question was as

inexperienced as Brian was unsophisticated. Brian’s stand-in counsel is the antithesis of the

“experienced criminal defense attorney” who represented Rumery, and who in fact soon became

the local district attorney. Rumery, 480 U.S. 390; see also id. n.1.

       This district court, however, found that Brian’s argument regarding his stand-in counsel

“also has no merit,” for three reasons. Patterson, 2009 WL 2733522, at *4. First, the district

court noted that, although stand-in counsel was present at the proceedings, Brian “was actually

represented by three retained attorneys, two of whom were experienced.” Id. at *4 n.10. Thus,

the district court suggested, the inexperience of stand-in counsel was somehow offset by the

experience of Brian’s other two attorneys of record. The district court cited no legal authority

supporting this proposition. Further, as a practical matter, it is irrelevant whether there was other

counsel of record if none of those other attorneys were present at the plea hearing or participated

in negotiating the terms of the Release-Dismissal Agreement. Second, the district court noted


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


that, when Brian was questioned at the plea proceeding as to whether he was “satisfied with the

legal representation that [he had] received[,]” he responded “Yes.” Id. (citing R. 39-14, Plea

Proceedings Tr., PageID #393.) We observe, however, that it is not obvious, from this question

alone, which of his attorneys Brian may have been referring to. But more importantly, the fact

that Brian answered this questioned in the affirmative is arguably only further evidence of his

lack of sophistication. Brian contends that his stand-in counsel twice assured him that the

Release-Dismissal Agreement could be expunged when Brian’s no contest plea was expunged.

A sophisticated criminal defendant—or, at least, a better advised criminal defendant—would

have been aware that a release-dismissal agreement is a legally binding contract that cannot be

“expunged” in the same way that one’s criminal history may be expunged under certain

conditions. The fact that Brian accepted and relied on this erroneous misinformation only further

underscores his lack of sophistication. Third, the district court found that “there is nothing to

indicate that he was represented by a public defender; therefore, since he chose his own counsel,

presumably he would have sought new counsel if he truly were dissatisfied with counsel’s

representation and/or credentials.” Id. Again, the question is not whether Brian expressed

satisfaction with his counsel’s representation; the question is whether Brian was sophisticated

enough to know he should be dissatisfied with his counsel’s representation.

       The fourth Rumery factor asks whether the defendant had ample time to consider the

agreement before signing it. This factor clearly cuts against Defendants-Appellees. Brian

argued at summary judgment that, two days before his plea hearing, he told his attorney that he

would not sign anything releasing any claims against the City or the officers involved. (See R.

51-15, Brian Decl., PageID #640(¶5).) Brian states, however, that 15 to 30 minutes before the

hearing, he was told by stand-in counsel that he would “probably have to agree to an oral waiver


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


as part of [his] plea.” (Id.) Brian was allegedly also told that (1) the agreement would be oral

rather than signed, and (2) it would only waive his right to bring an action against the defendants

prior to expungement, which his counsel in fact filed on January 22, 2008. (R. 51-24, Journal

Entry, PageID #682.) This amount of time, if true, is plainly insufficient. See Rumery, 480 U.S.

394 (finding three days sufficient for an experienced businessman to consider whether to agree to

a release-dismissal agreement with the assistance of an experienced criminal attorney); Hill,

12 F.3d at 578 (finding two months sufficient to consider whether to agree to release all civil

claims in exchange for a dismissal of criminal charges of obstructing official justice, aggravated

disorderly conduct, and resisting arrest); Kinney v. City of Cleveland, 144 F. Supp. 2d 908, 916

(N.D. Ohio 2001) (finding Kinney’s receipt of agreement at the courthouse on the day of hearing

insufficient).

        The district court did not specifically consider the question of timing in its analysis. The

district court did, however, find that Brian “offers no support” for his claim that he was told the

waiver was only temporary and would be expunged when his conviction was expunged.

Patterson, 2009 WL 2733522, at *4. “No support,” according to the district court’s analysis,

meant that Brian’s declaration was insufficient:

        This declaration does not establish anything, especially in the face of his
        exchange with the state court judge during the plea proceeding. Further, Brian
        has presented no affidavits from his criminal defense attorneys indicating that
        they ever told him that expungement of his record would also expunge any oral
        waiver he made on the record in open court. His self-serving declaration alone is
        not enough to overcome the clear transcript of his plea proceeding and/or to create
        an issue of fact.

Id. *4 n.11. The district court’s analysis is erroneous for two reasons. First, it is not Brian’s

burden at summary judgment, under the Rumery analysis, to prove the elements of voluntariness;

it is clearly the Defendants-Appellees’ burden.         Rumery, 480 U.S. at 399 (O’Connor, J.,

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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


concurring in part and concurring in the judgment); Coughlen 5 F.3d at 974. Second, there is no

reason Brian should have known his declaration would be insufficient to overcome summary

judgment, given that summary judgment proceedings were specifically bifurcated to first address

the issue of qualified immunity. It is unclear from the record why the district court decided to

address the defendants’ waiver defense in the context of summary judgment, as opposed to at the

motion to dismiss stage or at trial.

        On appeal, Defendants-Appellees argue, without support, that Brian “was informed by

his counsel of the terms of the agreement and the rights he was waiving.” (Appellee’s Br. at 10.)

In fact, counsel’s advice, as Brian understood it in the short amount of time he was given, caused

him to believe that the release would only be temporary. Defendants-Appellees have presented

no evidence refuting Brian’s account of his stand-in counsel’s advice.

        The fifth Rumery factor, the nature of the criminal charges, also cuts against granting

Defendants-Appellees summary judgment. Brian, a first time offender who had never even been

arrested before, was told that the only options available to him were either to plead no contest to

the misdemeanor of resisting arrest and waive all potential civil claims against the officers, or

proceed to trial for both the misdemeanor charge and the felony charge of assaulting a police

officer. While none of the parties has specified what penalty Brian was facing if he proceeded to

trial on the felony charge, they have presented two starkly conflicting versions of the underlying

facts of this case.

        In Brian’s account, he was arrested after a minor infraction; “yanked” into the street by

the police without provocation; officers attempted to “body slam” him to the ground; he was then

tased in the chest, again without provocation; and officers continued to tase and brutalize him

even though he was handcuffed and on the ground. In the officers’ collective account, Brian was


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


arrested for a minor infraction and for acting belligerently toward Sergeant Givens; pulled to the

driver’s side of Sergeant Givens’ because an approaching crowd was interfering with Brian’s

arrest; and tased once in the chest after Brian broke away from Officer Evans and struck Officer

Bickett in the head with his knee. On summary judgment, it is not for us to determine which of

these accounts is more credible. Anderson, 477 U.S. at 255. It is sufficient to note that Brian’s

account, if true, is surely the kind of Hobson’s choice that the Rumery Court was concerned with.

Rumery, 480 U.S. at 400 (“The risk and expense of a criminal trial can easily intimidate even an

innocent person whose civil and constitutional rights have been violated. . . . The coercive

power of criminal process may be twisted to serve the end of suppressing complaints against

official abuse, to the detriment not only of the victim of such abuse, but also of society as a

whole.”) (citation omitted).

       Finally, the sixth Rumery factor considers whether the agreement was formed under

judicial supervision. The district court repeatedly cited Brian’s answers to the trial judge’s

questions during his plea colloquy as evidence of voluntariness. See e.g., Patterson, at *4.

Defendants-Appellees, relying on Burke v. Johnson, emphasize that “[t]his Court has upheld the

validity and enforceability of release-dismissal agreements made in open court on the record.”

(Appellee Br. at 9) (citing Burke, 167 F.3d at 284-85). On the facts of this case, however, it is

not obvious that the formation of this particular agreement in open court, under judicial

supervision, supports its enforcement.10 For instance, it is not necessarily true, given the nature


10
  The central issue in Burke was what standard of proof a defendant had to satisfy in establishing
the voluntariness of a release-dismissal agreement. In Rumery, the plurality opinion authored by
Justice Powell suggested that a clear and convincing evidence standard applied. 480 U.S at 398
(stating that it was “clear” that Rumery entered into the agreement “voluntarily.”). Justice
O’Connor, however, suggested that a preponderance of the evidence standard applied. Id. at 403
(describing the evidence that Rumery entered into the agreement voluntarily as “convincing.”)
In Livingstone v. N. Belle Vernon Borough, the Third Circuit adopted a clear and convincing
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


of state court plea proceedings, that the judge presiding over Brian’s hearing was any more

advised of the charges against him (or the underlying events) than any judge normally would be

at that stage in the criminal proceedings. See e.g., Livingstone v. N. Belle Vernon Borough, 12

F.3d 1205, 1213 (3d Cir. 1993) (en banc) (“Livingstone I”) (finding a “patent ambiguity as to the

existence of informed consent” “notwithstanding the presence of a judge” during the defendants’

plea colloquy).

       In sum, we find that there are genuine issues of material fact surrounding at least five of

the six Rumery factors. Accordingly, the district court erred in finding, as a matter of law, that

Brian’s assent to the Release-Dismissal Agreement was voluntary, and therefore in granting

summary judgment in favor of Defendants-Appellees.




evidence standard for evaluating oral release-dismissal agreements, and declined to determine
what standard applied to written release-dismissal agreements. 91 F.3d 515, 534-36 (3d Cir.
1996) (“Livingstone II”). In Burke, this Court declined to adopt the Third Circuit’s clear and
convincing evidence standard, finding that: (1) “reading the release/dismissal agreement into the
record in the context of a plea hearing[,] as was done in [that] case, should be viewed as the
equivalent of a written agreement since judicial supervision provides due process protection
against prosecutorial overreaching and insures voluntariness under all but the most unusual
circumstances”; (2) Burke “is clearly distinguishable from Livingstone, and therefore, the Third
Circuit’s ruling should be limited to the facts of that particular case”; and (3) a preponderance of
the evidence standard applies in determining the voluntariness of a criminal defendant’s waiver
of his constitutional rights. 167 F.3d 276, 284-85 (6th Cir. 1999); accord Gonzalez v. Kokot, 314
F.3d 311, 319 (7th Cir. 2002) (agreeing with the Sixth Circuit approach). The Burke panel
upheld the validity of a release-dismissal agreement made in open court in part because it
discerned no substantive difference between a written release and an oral release formed under
judicial supervision in the context of a plea hearing. Thus, Burke holds, judicial supervision
serves to elevate an oral agreement to the “equivalent of a written agreement.” 167 F.3d at 284.
Burke, however, provides little guidance as to what form and degree judicial supervision must
take in order for the preponderance of the evidence standard to be satisfied. Further, the Burke
panel emphasized that there was “nothing of record which suggests that Burke did not
understand the terms of the release read or that he did not intend to agree to waive his right to sue
the Defendants. All of the record evidence points to the fact that Burke voluntarily and
knowingly and with the advice of counsel entered into the release/dismissal agreement.” Id. at
284. The same cannot be said here.


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


       2. Prosecutorial Misconduct or Overreaching

       Under the second prong of the Rumery analysis, we consider whether “the prosecutor had

an independent, legitimate reason to make this [release-dismissal] agreement directly related to

his prosecutorial responsibilities.” 480 U.S. at 398. The existence of prosecutorial misconduct

or overreach is determined by the court as a matter of law. See Hill, 12 F.3d 575, 578-79; see

also Livingstone I, 12 F.3d at 1215. “Such a legitimate reason ensures that the prosecutor acts

consistent with his duties to uniformly enforce the criminal law, rather than as the agent for the

private interests of potential § 1983 defendants.” Gonzalez, 314 F.3d at 319.

       Rumery requires that, in order for a court to find lack of prosecutorial misconduct, the

party invoking a release-dismissal agreement as a defense must present evidence of a legitimate

criminal justice reason for conditioning the plea agreement on a release. For instance, the

Rumery majority repeatedly emphasized that, in that case, the prosecutor’s purpose in fashioning

the condition was to spare an alleged rape victim the trauma of testifying at either or both of

Rumery’s civil and criminal trials. See Rumery, 480 U.S. at 390, 398; see also id. at 402-03

(O’Connor, J., concurring in part and concurring in the judgment). Moreover, the majority

repeatedly emphasized that there had been extensive testimony, from both the prosecutor and the

defense attorney, that protection of the alleged rape victim “was a significant consideration in the

prosecutor’s decision.” Id. at 398; see also id. at 390, 402-03 (O’Connor, J., concurring in part

and concurring in the judgment).

       In this case, the district court erred in its analysis of the prosecutorial misconduct prong.

The district court found, without elaboration, that “Brian also fails to show (and does not even

argue) that there was any prosecutorial misconduct involved in obtaining his waiver or that it

would not be in the public interest to uphold the waiver.” Patterson, 2009 WL 2733522, at *5.


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


This statement improperly shifts Defendants-Appellee’s burden onto Brian.             At summary

judgment, it is the Defendants-Appellees’ burden to prove the absence of prosecutorial

misconduct. Rumery, 480 U.S. at 399 (O’Connor, J., concurring in part and concurring in the

judgment); Coughlen 5 F.3d at 974. They have failed to do so. Before the district court,

Defendants-Appellees also erroneously placed the burden of proving misconduct on Brian,

(R. 39, Defs.’ Mot. Summ. J., PageID #234), and repeat this error on appeal. (Appellee Br. at

11-12.)

          The record is devoid of evidence of a prosecutorial justification for conditioning Brian’s

plea agreement, but not Derek’s, on the release of civil claims. Defendants-Appellees have

offered no evidence, such as an affidavit or testimony from the prosecutor in Brian’s case, as to

why a release was desired. See Hill, 12 F.3d at 579 (finding, in light of the prosecutor’s affidavit

asserting that he did not know of arrestee’s potential civil rights claim until after criminal

charges were drafted and the absence of evidence suggesting that circumstances surrounding

arrest and threatened prosecution were suspicious, there was no evidence of prosecutorial

overreaching apart from release-dismissal agreement itself); Gonzalez, 314 F.3d at 320 (finding

no prosecutorial misconduct where prosecutor testified at his deposition that he entered into a

release-dismissal agreement to avoid a costly and lengthy trial over minor criminal charges).

Rather, Defendants-Appellees essentially ask this Court to presume that no prosecutorial

misconduct or overreaching occurred because the state court judge “did not express any concern

(or even inquire) about prosecutorial abuse or overreaching.” (Appellee’s Br. at 11.) Defendant-

Appellees’ overreliance on the plea hearing transcript, standing alone, to prove the absence of

prosecutorial misconduct fails for the same reason that their reliance on the transcript to prove

voluntariness fails. Courts do not participate in the negotiation of plea agreements. As such, a


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


court cannot discern—solely from its supervision of the entry of a plea—whether prosecutorial

misconduct or overreach contributed to the formation of an agreement. There is, therefore,

simply no reason why the trial court would have inquired into the prosecutor’s conduct during

Brian’s plea colloquy.

       Brian, meanwhile, argues that the prosecutor made the decision to condition Brian’s plea

agreement on the release of civil claims because the prosecutor recognized Brian had a

meritorious civil action because, in his account of events, he had not assaulted Officer Bickett

and had himself been tased and assaulted by officers while he was handcuffed. (Appellant’s Br.

at 22-23; Appellee’s Reply at 11-12.); see also Coughlen, 5 F.3d at 974. In the absence of any

proof to the contrary from the Defendants-Appellees, the district court erred in dismissing

Brian’s argument.

       3. Public Interest

       The public interest prong of the Rumery analysis is linked to the prosecutorial misconduct

prong. A majority of the Rumery Court suggested that the public interest prong can be satisfied

“if the prosecutor demonstrates that obtaining the release was motivated by an independent,

legitimate criminal justice objective.” Coughlen, 5 F.3d at 975 (citing Rumery, 480 U.S. at 398).

It therefore stands to reason that if the proponent of a release-dismissal agreement has failed to

meet their burden of demonstrating a lack of prosecutorial misconduct or overreach, they have

also failed to satisfy their burden of demonstrating that the public interest is served by

enforcement of the agreement.

       We have no doubt that significant public interests can be furthered by such agreements.

“In many cases a defendant’s choice to enter into a release-dismissal agreement will reflect a

highly rational judgment that the certain benefits of escaping criminal prosecution exceed the


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


speculative benefits of prevailing in a civil action.” Rumery, 480 U.S. at 393. Likewise,

prosecutors also have an interest in entering these agreements because it saves municipalities the

time and expense of defending against potentially meritless civil rights claims. Id. at 395-96

(“The vindication of constitutional rights and the exposure of official misconduct are not the only

concerns implicated by § 1983 suits. . . . This diversion of officials from their normal duties and

the inevitable expense of defending even unjust claims is distinctly not in the public interest. To

the extent release-dismissal agreements protect public officials from the burdens of defending

such unjust claims, they further this important public interest.”) (plurality); see also id. at 399

(“Certainly some § 1983 litigation is meritless, and the inconvenience and distraction of public

officials caused by such suits is not inconsiderable. Moreover, particular release-dismissal

agreements may serve bona fide criminal justice goals.”) (O’Connor, J., concurring in part and

concurring the judgment).

       Here, however, we have no record evidence from either the prosecutor or Brian’s defense

attorney regarding the prosecutor’s reasons for desiring a release-dismissal agreement.

Nonetheless, Defendants-Appellees argue that “[g]iven the substantial number of witnesses, and

time and cost involved to secure a conviction, the public interest [was] better served [by]

allocating criminal justice resources to other serious felony prosecutions.” (Appellee’s Br. at

12.) This argument is unsupported, speculative, and belied by the history of this case. If the

prosecutor were truly concerned about conserving resources and warding off civil claims related

to these events, then Derek’s plea agreement would also have been conditioned on the release of

civil claims against the officers and against the City. As things currently stand, this case was

filed almost seven years ago. It has been nearly six years since Brian was dismissed as a

plaintiff. This is the second appeal. The parties involved are now nearly nine years removed


                                              - 26 -
Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


from the events in question. Given the hours exhausted and expense incurred thus far, it is

difficult to discern what possible benefit the Defendants-Appellees have gained from requiring a

release-dismissal agreement from Brian, but not requiring a similar agreement from Derek. See

Livingstone I, 12 F.3d at 1215 (“[A] general belief by prosecutors that release-dismissal

agreements serve valid purposes is not sufficient to satisfy the public interest prong of the

Rumery test.”); Cain v. Darby Borough, 7 F.3d 377, 383 (3d Cir. 1993) (“[U]nder Rumery there

must first be a case-specific showing that the released civil rights claims appeared to be marginal

or frivolous at the time the agreement was made and that the prosecutor was in fact motivated by

this reason.”) Given the sharply conflicting accounts of this incident, exposure of the officers

and the City to civil claims was reasonably foreseeable at the time of both Derek’s plea deal and

Brian’s Release-Dismissal Agreement.

       Accordingly, the district court erred in placing the burden on Brian as to the public

interest factor, and the lack of evidence on this point necessitates reversal.

                                                 III.

       We next address the district court’s determination that Officer Bickett’s Taser Report

was inadmissible at trial. We review a district court’s evidentiary rulings under the abuse of

discretion standard. United States v. White, 492 F.3d 380, 398 (6th Cir. 2007). It is an abuse of

discretion when the district court relies on clearly erroneous findings of fact, improperly applies

the law, or applies an erroneous legal standard. United States v. Lopez-Medina, 461 F.3d 724,

741 (6th Cir. 2006). We reverse only where the district court’s erroneous admission of evidence

affects a substantial right of the party.      Fed. R. Evid. 103(a); see also United States v.

Whittington, 455 F.3d 736, 738 (6th Cir. 2006).




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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


       The City of Akron provided Officer Bickett’s Taser Report to Derek in the course of

discovery. (R. 59-9, Taser Report, PageID #880.) The document shows the date, time (GMT

and local), and duration of each taser shot administered by the taser assigned to Officer Bickett.

(Id. PageID #881-92.) The report covers a two-year period, from June 2004 to June 2006. The

report was downloaded on June 12, 2008, from Taser International, the company that

manufactures and distributes the tasers used by the Akron Police Department, by Akron Police

Sergeant Michael Yohe, a Taser instructor. Sergeant Yohe provided the report to Defendant-

Appellee Lieutenant Melissa Schnee, who later produced it in the course of discovery.

Lieutenant Schnee used the Taser Report as part of her investigation into the officers’ use of

force on May 27-28, 2006. At trial, the district court excluded the Taser Report for lack of

foundation, Fed. R. Evid. 602, and failure to authenticate, Fed. R. Evid. 901.

       Plaintiff’s counsel extensively questioned Officer Bickett at trial regarding the Taser

Report. (R.141, Trial. Tr. Vol. 4, PageID #2233-2261; 2275-2285.) Officer Bickett testified that

he was aware of the existence of the Taser Report because his attorneys had shown it to him.

(Id. PageID #2243, 2254.) Officer Bickett further testified that he does not know where “taser

downloads” are stored; does not know what is done with the downloads; that he is personally

unable to download the Taser Report; and that he lacks knowledge of when or why a taser

download is performed. (Id. PageID# 2241, 2244-45, 2250-52.) When Plaintiff’s counsel asked

Officer Bickett whether he was “aware from seeing the report that it shows five deployments of

the taser” on May 27, 2006, defense counsel objected on the grounds of lack of foundation.11

(R.141, Trial. Tr. Vol. 4, PageID #2255.) During a lengthy discussion at sidebar, the district

court agreed that Plaintiff’s counsel had not established a foundation, and that Officer Bickett

11
 Defense counsel objected on the same grounds earlier in Officer Bickett’s testimony. (R.141,
Trial. Tr. Vol. 4, PageID #2233, 2234, 2235, 2248.)
                                              - 28 -
Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


“hasn’t indicated that this is a report kept in the ordinary course of business”—as Plaintiff’s

counsel had been trying to establish. (Id. PageID #2255-57.) Defense counsel repeatedly

conceded that the report was authentic, but did not concede or stipulate to its admissibility and

argued that Plaintiff’s counsel had not deposed Sergeant Yohe. (Id. PageID #2257-58.) The

district court held, “The problem is no one is here to authenticate it. Although you’re indicating

it is authentic, . . . no one is here to establish foundation for what this means.” (Id. PageID

#2259.)         Defense counsel argued that the report was hearsay “offered to prove the truth of

the matter[,] which is that [Officer Bickett] pulled his trigger five times.” (Id.) Plaintiff’s

counsel first disagreed that the report was hearsay, but then argued that the report fell into either

the ordinary course of business or public records exceptions to the hearsay rule, with which

defense counsel disagreed. (Id. PageID #2259-60.) The district court concluded that the report

could not be introduced for lack of foundation. (Id. PageID #2261.)

         Following a lunch break, Plaintiff’s counsel asked the district court to reconsider

admitting the report under the public records exception. (Id. PageID #2287); see also Fed. R.

Evid. 803(8)(a)(3) (“The following [is] not excluded by the rule against hearsay . . . [a] record or

statement of a public office if . . . it sets out . . . in a civil case or against the government in a

criminal case, factual findings from a legally authorized investigation; and the opponent does not

show that the source of information or other circumstances indicate a lack of trustworthiness.”)

There again followed a lengthy discussion between counsel and the court. The court ultimately

ruled:

                 THE COURT: I think the factual findings—and that’s what I was referring
         to earlier in the sidebar—factual findings from a legally authorized investigation
         would be the factual findings of, for instance, Lieutenant Schnee, which, as I
         alluded to earlier, those would be her findings.
                 These aren’t actual findings of an investigation.

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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al



(Id. PageID #2287.)

               THE COURT: No one has authenticated or has provided a foundation for
       the Court to understand or for anyone, the fact finder to understand more
       importantly, what this report means.
               How it’s compiled. How accurate it is. Do you need to calibrate
       anything? I don’t know the answers to any of that because you haven’t provided
       any of that through any witness.

       . . . . You’ve brought no one to this Court to establish a foundation for the reading
       and understanding and proper interpretation of these reports. It’s just analogous
       to, it seems, to any sort of report that’s generated like this where you need
       actually someone to interpret—who is qualified to interpret the report.
                I mean, we can all read the numbers on here. And we can all read the
       names. But that doesn’t mean we understand the report. And that’s the link that’s
       missing.

(Id. PageID #2289-94.)

                                                 A.

       We first address the Defendants-Appellees’ assertion that the Taser Report is hearsay.12

It is not. See Fed. R. Evid. 801(c) (“‘Hearsay’ means a statement that: (1) the declarant does not

make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove

the truth of the matter asserted in the statement”). The report is neither a statement nor is it made

by a declarant. See Fed. R. Evid. 801(a) (“‘Statement’ means a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.”) (emphasis added);

Fed. R. Evid. 801(b) (“‘Declarant” means the person who made the statement.”) (emphasis

added). It is merely a report of raw data produced by a machine. See 4 Federal Evidence § 8:13

(4th ed.) (“On a mechanical level, the question whether the hearsay doctrine reaches information

12
  It is not clear, from the trial transcript, that the district court adopted the defense’s hearsay
argument or excluded the Taser Report on that ground The district court sustained the defense’s
objection due to lack of foundation, failure to authenticate, and, more generally, doubt as to
whether the Taser Report is understandable without a foundational witness.
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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


provided by machines . . . is easily answered. Under Rule 801(a), a statement is ‘a person’s’

utterance, so nothing ‘said’ by a machine . . . is hearsay[.]”). Indeed, numerous circuit courts

have held that statements made by machines are not hearsay. See United States v. Lizarraga-

Tirado, --- F. 3d ----, No. 13-10530, 2015 WL 3772772, at *3 (9th Cir. June 18, 2015); United

States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008); United States v. Moon, 512 F.3d 359,

362 (7th Cir. 2008); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007); United

States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005); United States v. Khorozian, 333 F.3d

498, 506 (3d Cir. 2003); see also Mathews v. Broce, No. 5:11-CV-133 MTT, 2012 WL 3527073,

at *6 (M.D. Ga. Aug. 15, 2012) (admitting, over plaintiff’s hearsay objection, a taser report

showing that the plaintiff was “tased once in probe mode and once in drive stun mode,” and

noting that “no human intervened in the creation of the data”) (citing, inter alia, Lamons,

532 F.3d at 1263-64). Accordingly, we need not delve into whether the Taser Report satisfies an

exception to the rule against hearsay. See Fed. R. Evid. 802; Fed. R. Evid. 803.

                                                B.

       Although we find the Taser Report is not hearsay, that is not to say the report does not

present evidentiary questions. See, e.g., Lizarraga-Tirado, 2015 WL 3772772, at *3. We

therefore turn next to the question of foundation and authenticity. Laying a foundation for a

particular piece of evidence often means “authenticating” that evidence.           Authenticity is

established by “evidence sufficient to support a finding that the item is what its proponent claims

it is.” Fed. R. Evid. 901(a); see also Lizarraga-Tirado, 2015 WL 3772772, at *3 (noting that the

proponent of a machine statement “must show that a machine is reliable and correctly calibrated,

and that the data put into the machine . . . is accurate”). Here, the district court found that the

Taser Report lacked foundation because Officer Bickett had not generated the report, did not


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


know how they are made, and did not know how to download them. (R.141, Trial. Tr. Vol. 4,

PageID #2256.) Further, the district court found that Officer Bickett had “not indicated . . .

whether he even understands these reports or has an understanding of what was input to get this

report or not input.” (Id. PageID #2257.)

       We disagree that this was sufficient grounds for excluding the Taser Report. Derek

obtained the Taser Report from Defendants-Appellees in the course of discovery. Accordingly,

the report is not something Derek generated himself or had generated for him.                  More

importantly, Defendants-Appellees stipulated to the authenticity of the Taser Report, even if they

did not concede its admissibility. (R.141, Trial. Tr. Vol. 4, PageID #2258.) Nothing more is

required to establish authenticity. United States v. Griffith, 12 F.3d 215, at *2 (6th Cir. 1993)

(per curiam) (“The law in the Sixth Circuit on the effect of a stipulation of fact is clear:

Stipulations voluntarily entered by the parties are binding, both on the district court and on the

appeals court.”) (citations and quotation marks omitted); cf. Lizarraga-Tirado, 2015 WL

3772772, at *3 (“But defendant didn’t raise an authentication objection at trial, nor does he raise

one on appeal. He raised only a hearsay objection, and that objection was properly overruled.”);

Washington, 498 F.3d at 230.

       Accordingly, the district court erred in finding the Taser Report was not authenticated.

                                                 C.

       Having found that the district court erred in excluding the Taser Report, we must next

determine whether that error was harmless. Reversible error occurs only where the district

court’s erroneous exclusion of evidence affects a substantial right of the party—i.e., if it affected

the outcome of the trial. Fed. R. Evid. 103(a); see also United States v. Morales, 687 F.3d 697,

702 (6th Cir. 2012).      Here, although the district court used the terms “foundation” and


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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


“authentication,” the district court’s concerns appear to have been more prosaic: is the report, on

its own, understandable to laymen? Stated differently, does interpretation of the report require a

witness with greater personal knowledge of such reports than Officer Bickett? In addition to

questioning Officer Bickett about the report, did Plaintiff’s counsel also need to call Lieutenant

Schnee to testify about her use of the Taser Report during the use of force investigation? Would

her testimony have been sufficient, or did Plaintiff’s counsel also need to call Sergeant Yohe?

       The district court suggested that the Taser Report is “like a radiology report” that

“requires someone who understands these kinds of reports to interpret them.” (R.141, Trial. Tr.

Vol. 4, PageID #2290.) This analogy is not entirely suitable. A radiology report clearly requires

interpretation by someone with expertise or specialization in reading images on film to diagnosis

illness. This report, by comparison, is a fairly straightforward table. It is true that not every

table can be read and understood by laymen, but some can. The relevant information, for

purposes of this case, however, is contained in the highlighted columns:

Seq.         GMT Time                    Local Time               Duration      Temp      Battery
0299    05/28/06   06:25:27         05/28/06     02:25:27            6           32         69
                                                  [a.m.]
0300    05/28/06      06:25:33      05/28/06     02:25:33            5            33         69
                                                  [a.m.]
0301    05/28/06      06:25:42      05/28/06     02:25:42            9            34         69
                                                  [a.m.]
0302    05/28/06      06:25:48      05/28/06     02:25:48            5            34         68
                                                  [a.m.]
0303    05/28/06      06:25:51      05/28/06     02:25:51            4            34         68
                                                  [a.m.]


       Plaintiff’s counsel was trying to draw testimony from Officer Bickett that his taser

registered five trigger pulls in the early morning hours of May 28, 2006, when these events took

place. Any simple reading of these columns suggests that at 2:25 am, within the course of about

24 seconds, Officer Bickett pulled the trigger of his taser five times in succession. Thus, the

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Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


Taser Report tends to corroborate Derek’s version of events: that he was tased five times by

Officer Bickett, in addition to the tases he received from Officer Didyk.

       Defendants-Appellees assert that, if the district court erred in its evidentiary ruling, then

the error was harmless because the Taser Report corroborates Officer Bickett’s testimony that he

“sparked” his taser at the crowd 3-4 times, then tased Derek twice. (Appellee’s Br. at 21-22.)

The opposite is true. In actuality, the Taser Report impeaches Officer Bickett’s testimony,

because it shows that the five trigger pulls in question happened in succession over just

24 seconds. The report, therefore, does not support Officer Bickett’s testimony of “sparking” the

crowd and then, after an unspecified time lapse, tasing Derek. Exclusion of the Taser Report,

therefore, does not constitute harmless error.

       At trial, defense counsel raised myriad arguments questioning the reliability of the Taser

Report.13 These arguments present a double standard. On the one hand, Defendants-Appellees

suggest the Taser Report was reliable enough for Lieutenant Schnee to have considered it during

her use-of-force investigation. On the other hand, Defendants-Appellees argue that the exact

same Taser Report is not reliable enough for the jury to consider it in determining whether

Officer Bickett used excessive force on Derek. Defendants-Appellees cannot have it both ways.

More importantly, Defendants-Appellee’s arguments at most only go to the weight of the Taser

Report—not to its admissibility.




13
  For instance, defense counsel argued that the duration of taser shots on the model taser used by
Officer Bickett is calculated differently than the duration of taser shots a different model taser
that he is personally familiar with from another case he litigated. (R. 141, Trial Tr. Vol. 4,
PageID #2290-93.) Defense counsel’s personal knowledge is not evidence. But even assuming
this assertion is true, Plaintiff’s counsel does not argue that the duration of each trigger pull is
relevant. Rather, it is the sequence of the taser shots that is relevant to Derek’s claim.
                                                 - 34 -
Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


                                               IV.

       Based on the foregoing, we REVERSE the district court’s grant of summary judgment to

the officers on Brian Patterson’s claims, and find the district court abused its discretion in

excluding the Officer Bickett’s Taser Report at Derek Patterson’s trial.       This matter is

REMANDED for a new trial as to both Brian Patterson and Derek Patterson.




                                              - 35 -
Case No. 13-4321, Patterson, et al, v. City of Akron, OH, et al


       KETHLEDGE, Circuit Judge, concurring in part and dissenting in part. Although I

agree with the majority that we should remand Derek Patterson’s claims for a new trial, I think

the district court properly granted summary judgment to the defendants on Brian’s claims. Brian

surely knew what he was doing when he released his claims. A conscientious state trial judge

supervised the procedure by which Brian released them. And by agreeing to release them, Brian

avoided the possibility of a felony conviction that would have forever changed his life for the

worse. Indeed Brian would have been foolish not to have taken the deal. We should hold him to

it.

       I respectfully dissent from the remand in Brian’s case.




                                              - 36 -
