                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0562n.06

                                        Case No. 13-3761

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Jul 28, 2014
                                                                             DEBORAH S. HUNT, Clerk
RAMZI K. HALASAH,                                   )
    Plaintiff-Appellant,                            )
                                                    )
v.                                                  )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
CITY OF KIRTLAND, OHIO, et al.                      )       THE NORTHERN DISTRICT OF
      Defendants,                                   )       OHIO
                                                    )
and                                                 )
                                                    )
JAMES FISHER,                                       )
     Defendant-Appellee.                            )       OPINION

BEFORE: MOORE, WHITE, and DONALD, Circuit Judges.

       Bernice B. Donald, Circuit Judge. Ramzi Halasah appeals the district court’s grant of

summary judgment to Kirtland, Ohio Police Officer James Fisher on Halasah’s 42 U.S.C. § 1983

false arrest and malicious prosecution claims. Halasah argues that the district court erred in:

(1) concluding that there were no genuine issues of material fact as to whether Fisher either

knowingly or with a reckless disregard for the truth submitted an affidavit which contained

falsehoods or omissions that created falsehoods; (2) finding that the allegations in Fisher’s police

report were sufficient to support a charge of Disorderly Conduct or Obstruction of Official

Business; (3) finding that Fisher was insulated from a malicious prosecution charge because he

did not influence the decision to prosecute Halasah; and (4) finding that Fisher was entitled to

qualified immunity. We AFFIRM the district court’s grant of summary judgment.
Case No. 13-3761
Halasah v. City of Kirtland et al.

                                                 I.

       In the wee hours of the morning on May 23, 2009, Kirtland Police Officer James Fisher

discovered a group of teenagers drinking alcohol. Fisher requested assistance and remained at

the scene while the three other responding officers rounded up several people, ages seventeen to

nineteen, who had attempted to flee. The officers detained the teens and instructed them to

contact their parents to pick them up.

       Around 1:30 a.m., Ramzi Halasah received a telephone call explaining that his minor son,

A.H., had been involved in an underage drinking party and needed to be picked up. Halasah

stated that, when he arrived, the scene was noisy and chaotic due to the teens, the arriving

parents, and the police officers. Halasah’s son told him there had been a party but denied that he

had been drinking; before Halasah arrived, however, A.H. had admitted that he was drinking. As

police officers were trying to pair teens with their parents, Halasah approached one of the

officers, Officer Eugene Volk, and asked to know why police were present at a private residence.

He demanded that the police provide him with their probable cause for being on the property and

claimed that the teens were just having fun and not doing anything wrong. When Volk’s

answers did not satisfy Halasah, Volk stated that Fisher was the investigating officer.

       Halasah turned to questioning Fisher. According to Fisher, Halasah’s loud and persistent

interruptions forced him to stop the process of releasing another teenager to his parents; Halasah

does not recall what Fisher was doing before he turned to address him.             Halasah loudly

demanded that Fisher explain how the officers had probable cause to be at a private residence

and ordered Fisher to administer a field sobriety test and breathalyzer to A.H. Halasah refused

either to provide his driver’s license for identification or to sign the requisite paperwork to

release A.H. As Halasah was arguing with Fisher, N.P., another of the teens, grew progressively


                                               -2-
Case No. 13-3761
Halasah v. City of Kirtland et al.

more upset and began slamming a stack of coolers. Fisher thought that N.P. was “feeding off”

Halasah’s confrontational conduct—an intuition later corroborated by N.P.’s mother, who was

present—and that Halasah was escalating the situation. Fisher left Halasah to address N.P.,

placing N.P. in the back of a squad car but ultimately releasing him to his mother.

          Upon additional prompting from Volk, Halasah finally provided identification and signed

the release paperwork for A.H. Although he was free to leave, Halasah declined to do so, telling

police several times that he was not ready and once stating that he would not leave until he was

sure that N.P. was alright.          Fisher’s deposition testimony and incident report indicate that

Halasah was asked to leave multiple times; although he now contends that he was not asked to

leave more than once, Halasah conceded in his deposition that he “possibly” was asked to leave

more than once but did not specifically recall. After Fisher told Halasah that he would be

arrested if he did not leave, Halasah departed.

          When he returned to the police station, Fisher prepared a police report, which contained a

recommendation of charges to be filed against several people who were at the party. The report

stated that Halasah would have been arrested had there been more officers or fewer people on the

scene and recommended that Halasah be charged with “Obstruction of Official Police Business”

in violation of Ohio Rev. Code § 2921.31A.1 Fisher finalized and forwarded the report to



1
    The report states in relevant part:
                    At this point in time, Amy Smith (Mother of [T.S.]) arrived on scene. While speaking
          with Smith, Ramzi K. Halasah (Father of [A.H.]), and James Hopkins (father of [J.D.H.]) arrived
          on scene. [Officer] Volk was speaking with Halasah while I attempted to and [sic] complete the
          release to parent form to Smith. Halasah became loud and began directing his question towards
          me due to Volk explaining to him that I was the investigating officer. Halasah was refusing to
          cooperate or sign anything. Halasah wanted to know how I knew his son had been drinking. I had
          to stop speaking with Smith and direct my attention towards Halasah who was attempting to
          escalate the situation.
                    I approached Halasah and explained to him that his son was intoxicated and that he had
          already admitted to consuming alcohol. Halasah stated that he wanted me to prove that his son
          was drunk and asked me to give him a field test. I explained to Halasah that I was not going to

                                                       -3-
Case No. 13-3761
Halasah v. City of Kirtland et al.


       administer any field tests at this time. Halasah stated that I was just picking on kids and that he did
       not understand what the big deal was.
                 At this point in time, [N.P.] began slamming and kicking the empty coolers that he had
       stacked in front of the garage. [N.P.] was yelling profanities out and appeared to be fueled by
       Halasah’s argumentative behavior. I advised Halasah that I was not going to tolerate any further
       comments about his believes [sic]. I explained to Halasah that he was disorderly and escalating the
       incident. I explained to Halasah that any further comments would result in his arrest.
                 Volk attempted to intervene and asked Halasah for his driver license in order to verify
       who he was and to fill-out the release to parent form. . . .
                                                         ***
                 Volk completed the necessary paperwork (City of Kirtland Police Department’s Release
       to Parent Form) with Halasah. Volk explained to Halasah that he was free to leave. I was now
       speaking to James Hopkins . . . .
                 After Hopkins left, I overheard Halasah telling Volk that he was not going to leave until
       his son’s friend [N.P.] who was still seated in the rear of my patrol unit) [sic] was alright. Halasah
       was still being argumentative and still trying to control the situation. Volk and I explained to
       Halasah that it was not his place to be concern [sic] for [N.P.]. Volk explained to Halasah that
       [N.P.’s] mother was still here and would take responsibility for him. Halasah was not satisfied
       with that explanation and again stated that he was not leaving. I advised dispatch, who I was
       speaking with on the phone at this time, to have Sgt Andolsek respond back to the scene. I
       explained to dispatch that I was about to make an arrest, and things may get out of hand.
                 I again reiterated to Halasah that [N.P.’s] mother was still here and would take
       responsibility for him. I explained to Halasah that I was giving him a lawful order to leave now
       with his son. I explained to Halasah that failure to comply with my lawful order would result in his
       arrest. Halasah asked if I could shine my flashlight down the driveway so that he could see his
       way out. I explained to Halasah that he was able to walk down it while it was dark and he should
       be able to manage to walk back out. Halasah left the scene without any further incident or
       discussion.
                 At his point in time, Laura Pollice was upset and asked if [N.P.] was going to be arrested.
       Laura Pollice stated that [N.P.] was only getting loud because that man (Halasah) was getting him
       going (fueling the situation). I explained to Laura Pollice that I was not going to arrest [N.P.] at
       this time. . . I opened the rear door of my patrol unit and Sgt. Andolsek was seated next to [N.P.]
       and they were talking. Andolsek had already unhandcuffed [N.P.] Andolsek stated that [N.P.] was
       upset with himself about throwing the party and afraid of loosing [sic] his girlfriend. Andolsek
       stated that [N.P.] was feeding off of Halasah when he (Halasah) was arguing with us (the
       Police) . . . .
                                                         ***
       NOTE: The above described situation was under control with the exception of Ramzi K. Halasah.
       Halasah attempted to escalate the situation and minimize his son and his friends underage drinking
       [sic]. Halasah attempted to place the blame on the police instead of on his trespassing son and his
       friends. Halasah was repeatedly ordered to refrain from his disorderly actions. Halasah attempted
       to dictate what was happening and unwilling to cooperate at times [sic]. At being ordered to leave
       several times he ultimately left. That being said, Halasah would have been arrested if numerous
       other individual were still on scene [sic]. Halasah arrest which would have created undue hardship
       on officers still on scene and other parents en-route to pick up their children [sic]. I believe
       Halasah committed the following violation of law: Disorderly Conduct. Failure to comply. Or all
       in inclusive. Obstruction of Official Police Business.

       This report will be forwarded to the Lake County Juvenile Prosecutors Office and prosecutor
       Michael Germano for review. Below I have outlined each individual and potential charges to be
       filed if any.
                                                    ***
       Ramzi K. Halasah                  Obstruction of Official Police Business
       [Address]                         (2921.31A) M2

                                                       -4-
Case No. 13-3761
Halasah v. City of Kirtland et al.

prosecutor Michael Germano on June 9, 2009. Germano reviewed the report, decided to charge

Halasah with Disorderly Conduct under Ohio Rev. Code § 2917.11(A)(4), and conveyed this

information via fax to Fisher.

       Based on Germano’s instructions, Fisher prepared a Complaint, Summons, and Warrant

(“Complaint”) and appeared at a probable cause hearing before a magistrate of the Willoughby

Municipal Court. The Complaint states:

       No person shall recklessly cause inconvenience, annoyance, or alarm to another
       by doing any of the following: hindering or preventing so as to interfere with the
       rights of others, and by any act that serves no lawful and reasonable purpose to
       the offender

       To wit: Argumentative, disruptive and continually interrupted officers while
       attempting to conduct official business. Repeatedly asked to refrain from these
       actions and repeatedly asked to leave before actually doing so

       This being Disorderly Conduct. A violation of Ohio Revised Code 2917.11A4, a
       misdemeanor of the 4th degree

This recitation omits a sizeable portion of the statute. Section 2917.11(A)(4) actually reads:

“Hindering or preventing the movement of persons on a public street, road, highway, or right-of-

way, or to, from, within, or upon public or private property, so as to interfere with the rights of

others . . . .” Ohio Rev. Code § 2917.11(A)(4) (emphasis added). The magistrate reviewed the

information, questioned Fisher, who explained the incident, and then signed the arrest warrant.

       Fisher attempted to call Halasah to notify him of the Complaint but ended up leaving a

message. Cleveland Police arrested Halasah on July 13, 2009, when he appeared in traffic court

on an unrelated matter. At a bench trial on September 30, 2009, Halasah was acquitted because

the prosecution could not satisfy the “movement element” of Ohio Rev. Code § 2917.11(A)(4).




                                               -5-
Case No. 13-3761
Halasah v. City of Kirtland et al.

                                               II.

       After his acquittal, Halasah sued the City of Kirtland, Kirtland Police Chief Wayne

Baumgart, and Fisher under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth

Amendments, claiming false arrest, malicious prosecution, and failure to implement appropriate

policies, customs, and practices. On May 26, 2011, before the parties had taken any depositions,

the district court granted the defendants’ motion for summary judgment. The district court

determined that the existence of probable cause foreclosed Halasah's false arrest and malicious

prosecution claims and that Halasah failed to demonstrate any constitutional violations by

Baumgart.    The district court went on to conclude that Halasah's failure to establish a

constitutional violation precluded municipal liability and entitled Fisher and Baumgart to

qualified immunity.

       Halasah appealed. On June 21, 2012, this Court, in a per curiam opinion, affirmed the

district court’s grant of summary judgment on all the claims against the City and Chief

Baumgart. Halasah v. City of Kirtland, 485 F. App’x 776 (6th Cir. 2012). We, however,

reversed the grant of summary judgment to Fisher, reasoning that genuine issues of fact

remained as to whether Fisher was entitled to rely on the arrest warrant he prepared. Id. at 778-

79. We remanded, stating “we leave it to the district court to decide whether other defenses

warrant summary judgment in favor of Officer Fisher.” Id. at 779.

       Halasah and Fisher then engaged in fuller discovery, including depositions of one

another, and filed cross motions for summary judgment. Ruling on these motions, the district

court denied Halasah’s motion and again granted summary judgment to Fisher. The district

court concluded that Fisher’s false arrest claim failed because there was probable cause to arrest

Halasah for Disorderly Conduct. Because Fisher did not influence the decision to prosecute


                                              -6-
Case No. 13-3761
Halasah v. City of Kirtland et al.

Halasah, the district court determined that Halasah’s malicious prosecution claim likewise failed.

The court also concluded that Halasah’s claims failed because there was probable cause to arrest

and prosecute him for Obstructing Official Business under Ohio Rev. Code § 2921.31(A).

Finally, the court concluded that Fisher was entitled to the defense of qualified immunity

because he did not violate any of Halasah’s clearly established constitutional rights. Halasah

again appeals the district court’s grant of summary judgment.

                                               III.

       We review de novo a district court’s grant of summary judgment using the Matsushita-

Anderson-Celotex standard. Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).

Summary judgment is proper where there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We view facts in the

record and reasonable inferences that can be drawn from those facts in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). We do not weigh evidence, assess credibility of witnesses, or determine the truth of

matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

       The party requesting summary judgment bears an initial burden of demonstrating that no

genuine issue of material fact exists, which it must discharge by producing evidence to

demonstrate the absence of a genuine issue of material fact or “by showing . . . that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 323-325 (1986) (internal quotation marks omitted). If the moving party satisfies this

burden, the nonmoving party may not “rest upon its . . . pleadings, but rather must set forth

specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren,

578 F.3d 351, 374 (6th Cir. 2009) (citing Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 586). A


                                              -7-
Case No. 13-3761
Halasah v. City of Kirtland et al.

party asserting a genuine issue of material fact must support this argument either by “citing to

particular parts of materials in the record” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Evidence that is “merely

colorable” or “not significantly probative” is insufficient. Anderson, 477 U.S. at 248-52. If there

are no disputed material facts, we review de novo whether the district court properly applied the

substantive law. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2003).

                                                  IV.

          Halasah argues that the district court erred in granting summary judgment on his false

arrest claim because there is, at minimum, a genuine issue of material fact regarding whether

Fisher lacked probable cause to arrest him for Disorderly Conduct under Ohio Rev. Code

§ 2917.11(A)(4). Probable cause exists when, considering the totality of the circumstances, the

arresting officer knew of sufficient facts and circumstances to permit a prudent person to believe

that the suspect committed an offense. Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th

Cir. 2003). “‘Probable cause is defined as reasonable grounds for belief, supported by less than

prima facie proof but more than mere suspicion.’” United States v. McClain, 444 F.3d 556, 562

(6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)).

          To prevail on a false arrest claim, a plaintiff must prove that the arresting officer lacked

probable cause to arrest the plaintiff; put differently, probable cause provides a complete defense

to a claim of false arrest. Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005)

(citing   Baker v. McCollan, 443 U.S. 137, 143-44 (1979)). When an arrest is made pursuant to a

warrant, a plaintiff must prove (1) that the officer applying for the warrant, either knowingly and

deliberately or with reckless disregard for the truth, made false statements or omissions that


                                                 -8-
Case No. 13-3761
Halasah v. City of Kirtland et al.

created a falsehood and (2) that such statements or omissions were material to the finding of

probable cause. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010); see also Vakilian v. Shaw,

335 F.3d 509, 517 (6th Cir. 2003).

       Fisher argues that even if he lacked probable cause to arrest Halasah for Disorderly

Conduct, he nonetheless is insulated from the false arrest claim because he had probable cause to

arrest Halasah for Obstructing Official Business under Ohio Rev. Code § 2921.31(A), the crime

with which he initially recommended Halasah be charged. “[A]n arresting officer’s ‘subjective

reason for making the arrest need not be the criminal offense as to which the known facts

provide probable cause.’” United States v. Harness, 453 F.3d 752, 755 (6th Cir. 2006) (quoting

Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citations omitted)). Accordingly, “‘knowledge

of the precise crime committed is not necessary to a finding of probable cause provided that

probable cause exists showing that a crime was committed by the defendant[].’” United States v.

Reagan, 401 F. App’x 14, 16 (6th Cir. 2010) (quoting United States v. Anderson, 923 F.2d 450,

457 (6th Cir. 1991)).

       The Obstructing Official Business statute provides:

       No person, without privilege to do so and with purpose to prevent, obstruct, or
       delay the performance by a public official of any authorized act within the public
       official’s official capacity, shall do any act that hampers or impedes a public
       official in the performance of the public official’s lawful duties.

Ohio Rev. Code § 2921.31(A).         Ohio courts break Obstructing Official Business into five

elements: (1) an act by the defendant; (2) done with the purpose to prevent, obstruct, or delay a

public official; (3) that actually hampers or impedes a public official; (4) while the official is

acting in the performance of a lawful duty; and (5) the defendant so acts without privilege. E.g.

Ohio v. Kates, 865 N.E.2d 66, 73 (Ohio Ct. App. 2006). The record indicates that Fisher had

probable cause to arrest Halasah for Obstructing Official Business.

                                              -9-
Case No. 13-3761
Halasah v. City of Kirtland et al.

       The first element is easily satisfied; Halasah engaged in a number of acts, notably

interrupting Fisher as he was in the process of releasing another teen to his parents, escalating the

situation by asking questions in an aggressive manner and demanding that Fisher administer

sobriety tests to A.H., and refusing to provide identification for himself or sign release

paperwork for his son. The fourth element is also easily satisfied; Fisher was in the process of

performing a lawful duty—investigating underage drinking and releasing minors to their parents.

Turning to the third element, Halasah’s interruptions hampered Fisher from being able to finish

releasing one teen, and Halasah’s refusal to provide identification and sign paperwork impeded

A.H.’s own release. Further—contrary to Halasah’s contention that his being a parent of a minor

child allowed, or even compelled, him to act as he did—the fifth element is satisfied because

Halasah was acting without privilege.

       Assessing the second element, Halasah’s purpose, is slightly thornier. “The purpose with

which a person does an act is determined from the manner in which it is done, the means used,

and all the other facts and circumstances in evidence.” Ohio v. Wellman, 879 N.E.2d 215, 219

(Ohio Ct. App. 2007) (quoting In re Payne, 2005-Ohio-4849 at *3 (Ohio Ct. App. 2005)). In

Wellman, the Ohio Court of Appeals held that the defendant violated Ohio Rev. Code

§ 2921.31(A) by yelling at police officers, refusing to provide identification, and thereby

hindering them from apprehending a suspect; the Wellman court noted that the defendant

impeded the investigation “not just by asking questions, but by being belligerent and

argumentative.” Id. at 218. Halasah too went beyond merely asking questions: He was loud,

argumentative, and distracting; he insisted that the underage drinking was not a big deal and that

the officers were just “picking on” the minors; and he initially refused to provide identification.

Although Halasah’s behavior admittedly did not reach the level of the Wellford defendant, Fisher


                                               - 10 -
Case No. 13-3761
Halasah v. City of Kirtland et al.

was nonetheless justified in concluding for the purpose of a probable cause determination that

Halasah’s purpose was to impede, obstruct, or delay.

       Halasah quibbles with a number of facts—for example, pointing out that even with

Halasah’s supposed obstruction, Fisher managed to release more teens to their parents than Volk

did—to argue that he did not violate § 2921.31(A). But whether Halasah actually obstructed

official business is not at issue here; rather, Fisher only needed probable cause to conclude that

Halasah was obstructing official business. Even if we assume that there was not probable cause

to arrest Halasah for Disorderly Conduct, there was probable cause to arrest Halasah for

Obstructing Official Business. Accordingly, the district court did not err in granting Fisher

summary judgment on Halasah’s false arrest claim.

                                               V.

       Halasah also appeals the district court’s grant of summary judgment to Fisher on his

malicious prosecution claim. To prevail on a 42 U.S.C. § 1983 malicious prosecution claim

premised on a violation of the Fourth Amendment, a plaintiff must prove four things: (1) the

defendant made, influenced, or participated in the decision to prosecute the plaintiff; (2) there

was a lack of probable cause for the prosecution; (3) as a consequence of the prosecution, the

plaintiff suffered a deprivation of liberty, as understood in Fourth Amendment jurisprudence,

apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff’s

favor. Sykes, 625 F.3d at 308-309 (citations omitted). The district court found that Halasah

could not satisfy the first two elements and therefore granted summary judgment to Fisher.

Halasah argues that the district court incorrectly discounted Fisher’s role in the decision to

prosecute him for Disorderly Conduct and that the district court erred in concluding that probable

cause supported his prosecution.


                                              - 11 -
Case No. 13-3761
Halasah v. City of Kirtland et al.

       Halasah’s malicious prosecution claim fails because Fisher did not make, influence, or

participate in the decision to prosecute Halasah for Disorderly Conduct. We have long held that

a police officer who did not make the decision to prosecute cannot be held liable for malicious

prosecution. See, e.g., Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002) (citing

Coogan v. City of Wixom, 820 F.2d 170, 172-73 (6th Cir. 1987), recognized as overruled on

other grounds in Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)). The record indicates

that the decision was not Fisher’s. When Fisher completed his incident report, he forwarded to it

Germano.     Then, as explained in his affidavit, Germano decided to charge Halasah with

Disorderly Conduct.

       Halasah does not appear to contest that Germano, not Fisher, decided to charge him with

Disorderly Conduct so much as he contends that the district court erred in discounting Fisher’s

role as the person who drafted the Complaint. That Fisher physically drafted the Complaint,

however, is irrelevant; by the time Fisher was writing the Complaint, Germano—without

Fisher’s influence or participation—had already made the decision to prosecute Halasah for

Disorderly Conduct.     In drafting the Complaint, Fisher was merely formalizing Germano’s

charging decision. Because Fisher did not make, influence, or participate in the decision to

prosecute Halasah for Disorderly Conduct, the district court did not err in granting summary

judgment to Fisher on Halasah’s malicious prosecution claim.

                                              VI.

       Accordingly, for the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment as to Fisher.




                                             - 12 -
