Zachary Durbin, a minor; BOBBI LACROSS v. Cambridge Board of Education

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0169P (6th Cir.)
File Name: 04a0169p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RHYS WILLIAMS, a minor, by
his mother and next friend,
Gail Allen, et al.; GAIL
ALLEN; DAVID ALLEN,
Plaintiffs-Appellants
(02-3200),
ZACHARY DURBIN, a minor;
BOBBI LACROSS,
Plaintiffs-Appellants
(02-3207),
v.
CAMBRIDGE BOARD OF
EDUCATION, et al.,
Defendants-Appellees.
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Nos. 02-3200/3207
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00388—Algenon L. Marbley, District Judge.
Argued: July 31, 2003
Decided and Filed: June 4, 2004
2 Williams et al. v. Cambridge
Bd. of Educ. et al.
Nos. 02-3200/3207
Before: DAUGHTREY, MOORE, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: James D. McNamara, Columbus, Ohio, Mark E.
Jurkovac, Columbus, Ohio, for Appellants. Brian M. Zets,
SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, Mark
D. Landes, ISAAC, BRANT, LEDMAN & TEETOR,
Columbus, Ohio, Richard W. Ross, MEANS, BICHIMER,
BURKHOLDER & BAKER CO., Columbus, Ohio, for
Appellee. ON BRIEF: James D. McNamara, Columbus,
Ohio, Mark E. Jurkovac, Rick J. Abraham, Columbus, Ohio,
for Appellants. Brian M. Zets, SCHOTTENSTEIN, ZOX &
DUNN, Columbus, Ohio, Mark D. Landes, John S. Higgins,
ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio,
Richard W. Ross, MEANS, BICHIMER, BURKHOLDER &
BAKER CO., Columbus, Ohio, for Appellee.
SUTTON, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. MOORE, J. (pp. 25-45), delivered
a separate opinion dissenting in part and concurring in part.
_________________
OPINION
_________________
SUTTON, Circuit Judge. On April 20, 1999, fourteen
students and one teacher were killed at Columbine High
School in Littleton, Colorado. Two students at the school, we
eventually learned, were responsible for the killing spree.
On Friday, April 23, 1999, three days after Columbine, a
trio of students at Cambridge Junior High School in
Cambridge, Ohio reported to the Vice-Principal of the school

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that Rhys Williams and Zach Durbin planned to commit acts
of violence at the school. Rhys and Zach had prior criminal
records and both were then on juvenile probation. After
interviewing the three students, after taking written statements
from each of them, after interviewing Zach Durbin (the only
one of the two boys at school that day) and after consulting
with probation officers, school officials initiated “emergency
remov[al]” proceedings against the two students. As a result,
juvenile parole officers took both students into custody at a
juvenile detention facility for the weekend. On the following
Monday morning, the juvenile court placed both students on
house arrest for several days, and they did not return to school
for ten days in Zach’s case and for several days in Rhys’s
case. According to school officials, the boys stayed home
through voluntary decisions of their parents. According to the
boys’ parents, the school suspended them for these periods of
time. The juvenile prosecutor ultimately did not file charges
against Rhys Williams, but he did file an aggravated
menacing charge against Zach Durbin. In September 1999,
Zach was acquitted of the charge.
In the aftermath of the arrests, the boys and their parents
filed constitutional tort claims under 42 U.S.C. § 1983 (along
with several state-law claims) against the relevant school
officials and law enforcement officers. In particular, they
contended (1) that the local officials failed to establish
probable cause for the arrests in violation of the Fourth
Amendment and (2) that the two boys received school
suspensions without due process in violation of the
Fourteenth Amendment. The district court rejected these
claims and several others as a matter of law. We affirm.
I.
A. Events Preceding the April 23rd Arrest
In April 1999, Rhys Williams and Zach Durbin were
fourteen years old and were in the eighth grade at Cambridge
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Junior High School. Both students had previous criminal
problems and were on juvenile probation in April 1999. Rhys
also had been disciplined by the school for several incidents
of threatening behavior.
On Wednesday, April 21, 1999, one day after the
Columbine tragedy, the two boys went to Rhys’s house.
While there, they watched television coverage of the
Columbine shootings with Rhys’s mother, Gail Allen. At
some point that afternoon, Rhys asked his mother what she
would do if Rhys and Zach did “something like that.” JA at
469 (Durbin Dep.).
Later that night Zach spoke with a classmate, Kayla
Hollins, on the telephone. According to Zach, he merely told
Kayla about his conversation with Rhys and Gail Allen earlier
in the day. According to Kayla, Zach told her that he was
“getting sick of the way things were going” and was planning
on bringing a gun to school or bombing the school. JA at 252
(Hollins Test.). Kayla alleged that Zach also said he would
kill the “preps” first, JA at 147 (Hollins Recorded
Statement)—meaning that he would kill Sadie LePage and
that Kayla would be “one of the first to go,” JA at 532
(Hollins Dep. I)—but that he would not hurt Katie Spittle
because he liked her, JA at 151 (Hollins Written Statement).
B. Friday, April 23, 1999
1. Zach Durbin
On Friday morning of that week, two days after her
conversation with Zach, Kayla wrote a note to Sadie LePage,
saying that Zach “was going to bring a gun to school and
shoot us all because he was sick of bitchy preps.” JA at 152
(LePage Written Statement). Sadie showed the note to Katie
Spittle, another classmate. During the lunch period, Sadie
and Katie asked Zach whether the contents of the note were
true, and he allegedly told them they were, a point that Zach

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disputes. After lunch, Sadie and Katie told school officials
about the threat. They first told Julie Orsini, the guidance
counselor, about the note that Kayla had written. Orsini
notified Vice-Principal William Howell about the matter and
relayed her impression that the girls were “visibly shaken up
[and] . . . feeling threatened.” JA at 576 (Howell Dep.).
Howell met with Sadie and Katie individually, and later
called Kayla to his office as well. All three girls spoke to
Howell about what had happened, then wrote statements in
which they described the events of that morning and their
interactions with Zach. In Kayla’s statement, she said the
following:
I talked to Zac on the phone Wednesday night & he said
he was sick of everybody, everyone was getting on his
nerves & he & Rhys Williams were talking about
bringing a gun to school & he was very serious about the
matter[.] [H]is other option was planting a bomb &
taking everyone out on the first (one) shot. But he had
made very clear he would spare Katie Spittle because he
liked her. This morning I [said]to Sadie LePage I had
spoken to Zac & she asked what about & that is when I
wrote Sadie telling her about our (mine & Zac’s)
conversation. Half of the note is now gone.
Id.
Sadie said the following in her statement:
I was sitting in first period today and Kayla Hollins
wrote me a note that said Zac Durbin was going to bring
a gun to school and shoot us all because he was sick of
bitchy preps and he was going to start with me because
he hated me so much. Then it said that he said it would
just be easier to plant a bomb because he could get us all
at once. Then in band (second period) I showed Katie
Spittle the note because I was scared and she took the
note to him at lunch and he said that it was really true,
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that he was talking to Rhys and they were seriously
thinking about it. Zac hates me so much because I broke
up with him 1-2 months ago. And he said he was going
to spare Katie of all of this because he likes her.
JA at 152.
And Katie said the following in her statement:
This morning in 2nd period (Band) Sadie LePage showed
me the note. At lunch I asked Zac if it was really true,
and he said yes. He said him and Rhys were talking
about it. He pointed to Sadie and said she’s going first.
He said he was going to spare me, because he liked me.
JA at 153.
After his meetings with the three girls and after obtaining
their statements, Howell contacted Assistant Superintendent
James Spisak to inform him of the situation and to begin the
emergency removal process with respect to Zach. Spisak
agreed that Zach should be removed from the school under
§ 3313.66 of the Ohio Revised Code because of the
“continuing danger” he posed. In an effort to release Zach to
an adult, Howell initially tried to reach Zach’s mother, Bobbi
LaCross, but she was unavailable. He then called Zach’s
probation officer, Jeffrey Hayes, who came to the school. At
roughly the same time, Howell notified Officer Randy LePage
and Detective Brian Harbin of the City of Cambridge Police
Department about the matter.
When Hayes arrived at the school, Howell briefed him
about the situation, told him that the police had been notified
and showed him the three girls’ written statements. Hayes
asked Howell “whether these [girls] were reputable students”
because he wanted to determine “whether it was somebody
trying to get even with Zach or that type of thing.” JA at 509
(Hayes Dep.). Howell confirmed the credibility of the girls’

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statements on the basis of their reputations as students. Hayes
then called his supervisor, Jean Stevens, the Chief Probation
Officer of Guernsey County, alerting her to the alleged
threats, the girls’ statements supporting them, the girls’
reputations with Howell, the credibility of their statements
from Howell’s perspective, and the possible police
investigation. Hayes told Stevens that Rhys was not at school
that day and that police were looking for him. He then
recommended to her that Zach be removed from the school.
Stevens authorized Hayes to remove Zach from the school
and to take him into detention at the Guernsey County
Juvenile Probation Department.
At this point, Howell removed Zach from study hall and
told him about the girls’ allegations. In response, Zach
confirmed that he knew about the note and acknowledged that
Rhys (in his presence) had been “joking around” when talking
to Gail Allen about the incident at Columbine, JA at 581
(Howell Dep.), but denied the rest of Howell’s accusations,
JA at 473 (Durbin Dep.). After the interview, Howell asked
Hayes to escort Zach from the school. While Hayes claims
that he did not arrest Zach at this point, he acknowledges that
Zach was not at liberty to leave and that he handcuffed Zach
in conformity with the probation department’s policies.
Hayes signed Zach out of the school late Friday afternoon and
escorted him to the Guernsey County Probation Department
in Byesville. Upon arrival, Zach was shackled and
handcuffed to a chair. Eventually, Zach was driven to the
Jefferson County Juvenile Detention Facility in Steubenville,
where he remained over the weekend until he returned to
Guernsey County for his Juvenile Court appearance on
Monday, April 26th.
2. Rhys Williams
Rhys was not involved with the investigation that took
place at the school on Friday, April 23rd, because he was not
in school that day. Stevens claims that neither she nor Hayes
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ordered Rhys’s arrest, although she admitted that she
authorized his detention in a phone call with a Cambridge
police officer. Several Cambridge police officers arrived at
Rhys’s house on Friday afternoon and informed his mother,
Gail Allen, that he had been implicated in a bomb threat. In
response, Allen called the probation department. Becky
Masters, the probation officer with whom she spoke,
confirmed the police officers’ report and asked Allen to bring
Rhys to the department. Allen brought Rhys to the probation
department in Byesville, where Masters and a transportation
officer handcuffed and shackled Rhys. He was eventually
driven with Zach to Steubenville, held for the weekend and
returned to Guernsey County for an appearance in Juvenile
Court on Monday, April 26th.
3. City of Cambridge Police Officers
Captain Randy LePage and Detective Brian Harbin of the
City of Cambridge Police Department received a call from
Howell on the afternoon of April 23rd. By the time they
arrived at the school, however, Hayes and Zach had already
departed. Because Sadie was Captain LePage’s daughter,
LePage recused himself from any further involvement and
Harbin assumed control of the investigation. Harbin collected
the written statements that Howell had taken from the three
girls, then took a statement from Howell before leaving. He
also took more formal statements from each of the girls at the
police station later that afternoon. There is no evidence that
Harbin ordered Rhys’s apprehension, but Harbin was in
charge of the investigation when Cambridge Police Officers
arrived at Rhys’s home.
C. Monday, April 26th, 1999
On Monday, April 26th, the earliest day they could appear
in juvenile court, Zach and Rhys were returned to Guernsey
County. At the courthouse, they were separately interviewed
by Harbin and later appeared together before Judge

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Urbanowicz of the Guernsey County Court of Common Pleas.
Rhys and Zach both were placed under house arrest for a few
days at the end of the hearing. Zach was also electronically
monitored as part of his house arrest. Later that week, Harbin
transferred the results of his investigation to Roy Morris, the
Guernsey County Juvenile Prosecutor. Morris reviewed the
information and charged Zach with making “menacing
threats” in violation of Ohio Revised Code § 2903.21.
Adhering to the guidelines for Guernsey County juvenile
proceedings, Harbin picked up a written statement of the
charge from Morris’s office, signed it, and filed it with the
Clerk’s office. Morris declined to file any charges against
Rhys because he believed probable cause did not exist that he
had committed, or was about to commit, a crime. Zach
appeared before Judge Urbanowicz to face trial for the single
menacing charge on September 18, 1999 and was acquitted.
D. Suspension Issue
Rhys and Zach stayed home from school for a period of
time following their appearance in juvenile court. Although
their parents allege that Rhys and Zach were suspended, the
school disputes the point, claiming it never suspended them.
Gail Allen acknowledges that she never received official
papers concerning a suspension for Rhys, noting that she kept
him home from school in excess of a week because she
wanted to shield him from a potential backlash by his peers
and because she accepted the advice of the school principal
who thought it would be in his best interests as a matter of
safety.
Bobbi LaCross alleges that Howell asked Zach to sign a
paper concerning his suspension at the courthouse, then told
her that he planned to suspend Zach if he was convicted of the
aggravated menacing charge. LaCross allegedly asked
Howell about the possibility of appealing any suspension, to
which he responded that he would mail her the necessary
papers. In his brief on appeal, however, Howell states that a
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“Notice of Suspension” for Zach was prepared on April 26th
in accordance with Ohio Revised Code § 3313.66, but the
school never took action on the notice, and it never officially
suspended him.
When she did not receive any suspension papers, LaCross
allegedly called Superintendent Thomas Lodge to inquire
about receiving the papers and about the appeal process. She
says that Lodge told her “he had got the suspension papers
and there was no recommendation for expulsion.” JA at 621
(LaCross Dep.). Lodge, however, claims official suspension
papers for Zach did not cross his desk and that he told
LaCross that since no suspension was yet filed, “there’s
nothing to appeal at this point in time.” JA at 638 (Lodge
Dep.). LaCross persisted and alleges that on May 21, 1999,
she was able to obtain the original suspension papers. She
attempted to file a written appeal on May 24, 1999, but did
not receive a hearing, as the school maintained there was no
initial suspension from which she could appeal. Howell and
Lodge note that a copy of the “Notice of Suspension” was
indeed mailed to LaCross in late May 1999, but that without
further action the document alone did not constitute an out-of-
school suspension.
E. Procedural History
On March 29, 2000, Zach and his mother (Bobbi LaCross)
and Rhys and his parents (Gail and David Allen) filed this
lawsuit. They asserted a variety of federal-law
claims—violation of the boys’ First, Fourth and Fourteenth
Amendment rights under § 1983, the existence of city and
school customs that caused these constitutional violations and
the presence of a civil conspiracy to violate these rights. And
they asserted a variety of state-law claims—malicious
prosecution, false imprisonment, false arrest, defamation and
intentional infliction of emotional distress.

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On September 20, 2001, all of the defendants filed motions
for summary judgment, which the district court granted.
First, the court determined that the defendants had probable
cause to detain Rhys and Zach and accordingly rejected their
Fourth Amendment claims. Second, the court determined that
neither Rhys nor Zach was actually suspended from school
and accordingly rejected their Fourteenth Amendment claims.
Third, the court concluded that Zach and Rhys could not
substantiate their conspiracy claim. Fourth, the court rejected
the state false arrest and false imprisonment claims because
Rhys and Zach could not prove that their detentions were
unlawful. Fifth, the court rejected the state law claim of
malicious prosecution because Harbin had reasonable
suspicion that Zach had engaged in menacing. Finally, the
court rejected the other claims because Rhys and Zach had
failed to respond to the defendants’ summary-judgment
motion on them.
On appeal, Rhys and Zach challenge the district court’s
resolution of their Fourth and Fourteenth Amendment claims.
In addition, Rhys appeals his false arrest and false
imprisonment claims, and Zach appeals his malicious-
prosecution claim.
II.
The customary rules for reviewing a summary-judgment
decision apply. We give de novo review to the district court’s
decision. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490
(6th Cir. 2002). A decision granting summary judgment is
proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). And in considering such motions, we give
all reasonable factual inferences to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
12 Williams et al. v. Cambridge
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Nos. 02-3200/3207
Public officials who perform discretionary functions
“generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Two questions thus arise in this context: Did the
government officials violate a constitutional guarantee? And,
if so, did the violation involve a clearly-established
constitutional right of which a reasonable officer would have
been aware? See Saucier v. Katz, 533 U.S. 194, 201 (2001).
In the absence of an affirmative answer to both questions, the
constitutional tort claims must be dismissed as a matter of
law.
A. Fourth Amendment Claim
The parties share common ground with respect to the
Fourth Amendment’s requirements in this area. As a general
rule, a law enforcement officer may not seize an individual
except after establishing probable cause that the individual
has committed, or is about to commit, a crime. See Beck v.
Ohio, 379 U.S. 89, 91 (1964). Probable cause means the
“facts and circumstances within the officer’s knowledge that
are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to
commit an offense.” Michigan v. DeFillipo, 443 U.S. 31, 37
(1979). Once “probable cause is established,” this Court has
added,
an officer is under no duty to investigate further or to
look for additional evidence which may exculpate the
accused. In fact, law enforcement “is under no
obligation to give any credence to a suspect’s story [or
alibi] nor should a plausible explanation in any sense
require the officer to forego arrest pending further
investigation if the facts as initially discovered provide
probable cause.”

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Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (citations
omitted). At the same time, officers must consider the totality
of the evidence “known to them” when considering probable
cause, and in cases where they have both inculpatory and
exculpatory evidence they must not ignore the exculpatory
evidence in order to find probable cause. Id. at 372. A “mere
suspicion” of criminality will not suffice. United States v.
Harris, 255 F.3d 288, 292 (6th Cir. 2001).
The rub in this case is whether probation officers Hayes and
Stevens—the two primary defendants with respect to this
claim—had probable cause to take Zach and Rhys into
custody on Friday, April 23, 1999. In the district court’s
view, the “information conveyed in the girls’ written
statements was sufficient for the Defendants to have had more
than a ‘mere suspicion’ of Williams’ and Durbin’s alleged
criminal activities.” Williams v. Cambridge Bd. of Educ., 186
F. Supp. 2d 808, 816 (S.D. Ohio 2002). In response to this
conclusion, plaintiffs argue that because Hayes and Stevens
relied on vague statements the girls made to Vice-Principal
Howell and did not test the reliability of the statements
themselves, they did not have probable cause to detain either
of them.
The problem with this argument is that Hayes and Stevens
did not merely accept the girls’ three statements at face value.
After two of the girls spoke to the guidance counselor, Julie
Orsini, about the threats, she passed along the information to
Vice-Principal Howell and explained that the girls “were
visibly shaken up; that—that they were feeling threatened
because they had had a correspondence with Zach Durbin
concerning threats to them.” JA at 576 (Howell Dep.).
Howell in turn spoke to all three girls, then asked each of
them to write statements about what had happened. The three
girls all conveyed the same essential information to Howell,
and their written statements matched their oral statements.
The contents of the statements were anything but “kids will
be kids” material. According to Sadie LePage: (1) “Zac
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Durbin was going to bring a gun to school and shoot us all
because he was sick of bitchy preps”; (2) “he said it would
just be easier to plant a bomb because he could get us all at
once”; and (3) “[Zach] was talking to Rhys and they were
seriously thinking about it.” According to Kayla Hollins:
(1) “I talked to Zac on the phone Wednesday night & he said
he was sick of everybody, everyone was getting on his nerves
& he & Rhys Williams were talking about bringing a gun to
school”; and (2) “he was very serious about the matter [;] his
other option was planting a bomb & taking everyone out on
the first (one) shot.” According to Katie Spittle: (1) “At
lunch I asked Zac if [the note] was really true, and he said
yes. He said him and Rhys were talking about it”; and
(2) “[h]e pointed to Sadie, and said she’s going first.”
Only after Howell vouched for the girls’ credibility, and
indeed only after Hayes queried whether the girls could be
trusted, did Hayes credit this version of the events. In view
of Howell’s position as Vice-Principal, Hayes was justified in
trusting Howell’s assessment of the three girls’ credibility and
in respecting Howell’s superior position for doing so. On top
of this information, Howell separately met with Zach, who
confirmed that he knew about the original note, but denied the
remainder of Howell’s accusations, contending that Rhys (in
his presence) had been “joking around” when they discussed
the Columbine incident with Gail Allen.
On this record, the officers’ investigation sufficed for the
task at hand. The question is not whether Zach made these
threats but whether the defendants had probable cause to
believe that he had made them. In the aftermath of
Columbine, the corroborated statements of three girls whom
Vice-Principal Howell deemed trustworthy permissibly
cemented the probation officers’ probable cause
determination—regardless of whether the concern was a
shooting/bomb threat or criminal menacing and regardless of
whether the suspect himself denied making those threats. At
a minimum, the acknowledged statements established

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probable cause of aggravated menacing, particularly in the
environment of that sobering week. See Ohio Rev. Code
Ann. § 2903.21 (“No person shall knowingly cause another to
believe that the offender will cause serious physical harm to
the person or property of another person . . . . Whoever
violates this section is guilty of aggravated menacing.”); see
also Cohen v. Dubuc, No. 3:99-CV-2566(EBB), 2000 WL
1838351, at *4 (D. Conn. Nov. 28, 2000) (police officer had
probable cause to arrest a high school student after three
independent witnesses gave statements that, two days after the
Columbine tragedy, they heard the student make threatening
comments about “shooting up” the school).
Separately, Rhys Williams and his parents argue that the
second-hand references to him in the girls’ statements did not
establish probable cause for his arrest. “A close review of the
girls’ statements,” they argue, “reveals that these students
made no claim that they had seen or heard [him] do anything
. . . [and] only reported that [Zach] told them he had ‘spoken
to Rhys about it.’” Williams Br. at 33. They also claim that
Kayla’s conduct—first reciting her story in a note to a friend
two days after her initial conversation with Zach, then trying
to tear up the note, then becoming afraid when her story
began to spread—shows she exaggerated her accusations.
The evidence, however, cannot be so readily parsed. While
we acknowledge that it is easier to dispense with Zach
Durbin’s claim than it is to resolve Rhys’s claim as a matter
of law, the girls’ statements confirm that Rhys was indeed
connected to the matter. Just as importantly, Zach himself
confirmed to Vice-Principal Howell that he and Rhys were
involved in all of the relevant conduct—whether one labels
the conduct a plan of violence, a threat of violence or an
immature (but menacing) joke gone awry. Having concluded
that probable cause existed for the one boy that Friday
afternoon, it was reasonable as a matter of law for the
probation officers to conclude that it existed for the other.
That Rhys was not eventually charged with menacing does
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not change matters. An arrest grounded in probable cause
does not become invalid merely because the State chooses not
to prosecute the individual or a jury opts for acquittal. See
Criss v. City of Kent, 867 F.2d 259, 262 & n.1 (6th Cir.
1988).
B. Fourteenth Amendment Claim
Plaintiffs separately argue that the school officials violated
their due-process rights in suspending them without notice
and a hearing. We disagree.
While the Due Process Clause applies to children and to
public schools, the Supreme Court has long made clear that
the procedural requirements of the Clause have considerably
less force when applied to discipline meted out by school
officials to students under their care. Unlike juvenile criminal
proceedings, for example, hearings in connection with short
school suspensions need not “afford the student the
opportunity to secure counsel, to confront and cross-examine
witnesses supporting the charge, or to call his own witnesses
to verify his version of the incident.” Goss v. Lopez, 419 U.S.
565, 583 (1975). Imposing such formalities on a school
suspension proceeding would “not only make it too costly as
a regular disciplinary tool but also destroy its effectiveness as
part of the teaching process.” Id. Before suspending a
student for ten days or less, as a result, all that a school
official must do is give (1) adequate notice of the charge
against the student, (2) an explanation of the evidence
supporting the charge and (3) an opportunity for the student
to respond. See id. at 581; Martin v. Shawano-Gresham Sch.
Dist., 295 F.3d 701, 706 (7th Cir. 2002) (“[U]nder Goss
students have a right to only minimal process.”); Donovan v.
Ritchie, 68 F.3d 14, 17–18 (1st Cir. 1995) (applying these
requirements to a temporary school suspension that also
barred participation in athletics and school activities, yet
noting that under Goss, “the mere fact other sanctions are
added to a short suspension does not trigger a requirement for

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a more formal set of procedures”); C.B. ex rel. Breeding v.
Driscoll, 82 F.3d 383, 386–87 (11th Cir. 1996) (noting that,
in the short school-suspension context, “the process provided
need consist only of ‘oral or written notice of the charges
against [the student] and, if he denies them, an explanation of
the evidence the authorities have and an opportunity [for the
student] to present his side of the story’”) (quoting Goss, 419
U.S. at 582); Signet Constr. Corp. v. Borg, 775 F.2d 486, 490
(2d Cir. 1985) (citing Goss for the proposition that
“[s]ituations may occur where, given the burden a normal
proceeding would impose, the nature of the interests at stake,
the time limit for state action, and other circumstances, an
informal non-judicial hearing will suffice”).
Measured by these requirements, each plaintiff’s claim fails
as a matter of law—first because neither boy was in fact
suspended and second because, with respect to Zach, even if
he had been suspended, the process given him was all the
process that was due. We consider each claim in turn.
1. Rhys Williams
In the district court’s view, Rhys Williams and his parents
could not challenge the validity of the procedures used to
impose a suspension on Rhys because the school never
suspended him. We agree.
Rhys and his parents claim that he “was kept out of school
for a period of several days” following his court appearance.
Williams Br. at 24. And they observe that Vice-Principal
Howell wrote a memo on April 23, 1999 indicating that
“suspension papers for Zach and Rhys” had been prepared.
Id. at 42. At the same time, however, they concede that “it
appears that the suspension was never signed or filed.” Id. at
24. And, most pertinently, Rhys’s mother acknowledged in
her deposition that Rhys in fact was not suspended.
18 Williams et al. v. Cambridge
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Nos. 02-3200/3207
Q. He was allowed to go to school that entire week,
correct? He was not under suspension? From April 26
on, he was not under suspension, was he?
A. No, he was not under suspension.
Q. So he just chose not to go to school that week?
A. I guess a lot of us chose that he did not go that week.
Q. How come?
A. I called the principal and asked about the work he’s
going to miss and whether to—I told her I was going to
leave him out of school for a few days, this and that, and
she said she’s not telling him not to come to school, but
she would advise or suggest it would be a good thing that
he didn’t for the safety.
JA at 437 (Allen Dep.).
On this record, the district court correctly rejected this due
process claim as a matter of law. Rhys’s mother
acknowledged that her son was not suspended by the school
district and that the decision to keep him home was hers, not
the principal’s. Even if this decision came with the
principal’s support, that fact does not lay the necessary
predicate for this claim—that the school district in fact
imposed a suspension.
2. Zach Durbin
The district court likewise rejected Zach Durbin’s due
process claim on the ground that the school merely initiated
a formal suspension procedure against Zach but never
followed through on it. We again agree, and add that, even if
Zach did receive an informal suspension, he received all of
the process to which Goss entitles him.

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According to Zach’s mother (Bobbi LaCross), on Monday,
April 26th, Howell told her “Zach was going to be suspended;
but if he was found not guilty [of the aggravated menacing
charge], then the suspension would be canceled.” JA at 617
(LaCross Dep.). LaCross interpreted this statement to mean
that the school had imposed a ten-day suspension on Zach,
which was “to be served immediately.” Durbin Br. at 15.
There is little doubt that at this point suspension papers were
prepared, Howell asked Zach to sign them, and it is fair to
infer from the record that Howell at least expected that a
formal suspension would be issued.
At some point after this initial conversation between
Howell and LaCross, she asked Superintendent Lodge for the
suspension paperwork so that she could file an appeal of the
suspension, as authorized by Ohio law. See Ohio Rev. Code
Ann. § 3313.66(D)–(E). Consistent with Howell’s previous
statement to LaCross regarding the status of Zach’s
suspension, Lodge told her “there’s nothing to appeal at this
point in time.” JA at 638 (Lodge Dep.).
The school eventually gave LaCross the prepared
suspension papers—though well after Zach had already
returned to school and not because the school actually
followed through on the suspension, but because LaCross
asked to see the proposed papers. Because Zach was found
not guilty of the criminal charge of aggravated menacing in
September 1999, no suspension was ever issued (and none
appears on his record), no formal papers were served on Zach
and his family, and no formal suspension procedures were
followed.
While the school district’s suspension policy stipulates that
adequate notice and an opportunity for an informal hearing be
given to a student before a suspension is issued, see Ohio
Rev. Code Ann. § 3313.66(A), it nowhere stipulates when
and how school administrators are to suspend students. Nor
does it prohibit conditioning a suspension on whether a
20 Williams et al. v. Cambridge
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student is criminally convicted of a charge. See generally
Ohio Rev. Code Ann. § 3313.66. Had Zach been found guilty
of aggravated menacing, there is no reason to believe his
“Notice of Suspension” would not have crossed Lodge’s desk,
setting the official school-district suspension process on its
proper course. On this record, we agree with the district court
that the school never issued the suspension, even if it did
initiate the suspension process, and accordingly this due-
process claim should be dismissed.
But even if one assumes that the record creates a fact
dispute about whether Zach received an informal suspension,
his procedural due-process rights were not violated. “[I]n
connection with a suspension of ten days or less,” Goss
requires only “that the student be given oral or written notice
of the charges against him and, if he denies them, an
explanation of the evidence that authorities have and an
opportunity to present his side of the story.” 419 U.S. at 581.
The decision also provides that “[t]here need be no delay
between the time ‘notice’ is given and the time of the hearing.
In the great majority of cases the disciplinarian may
informally discuss the alleged misconduct with the student
minutes after it has occurred.” Id. at 582. Here, after taking
written statements from the three girls, Howell called Zach to
his office for questioning. He informed Zach of the
allegations against him and asked Zach for an explanation.
No doubt, there was little delay, if any, between the notice
Zach received and his chance to respond, but under Goss that
was all that was required. See 419 U.S. at 582; Kaelin v.
Grubbs, 682 F.2d 595, 602 n.9 (6th Cir. 1982).
Nor was there a violation of Zach’s right to a hearing.
Again, Goss points the way. It explains that the student must
“be[] given an opportunity to explain his version of the facts
at this discussion,” and the student should “be told what he is
accused of doing and what the basis of the accusation is.”
419 U.S. at 582. As this Court has observed, “‘informal give-
and-take between student and disciplinarian’ will satisfy the

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procedural due process requirements for a suspension lasting
for ten days or less.” Buchanan v. City of Bolivar, 99 F.3d
1352, 1359 (6th Cir. 1996) (quoting Goss, 419 U.S. at 584).
Once Howell informed him of the allegations, Zach was given
a chance to respond. He explained the nature of his
conversation with Rhys and Gail Allen on April 23rd,
admitted that Rhys (in Zach’s presence) had been “joking
around” about Columbine, and admitted that he knew about
Kayla’s note. After this conversation, Zach may well have
believed that the information before Howell did not suffice to
suspect him of trying to bomb the school or shoot its students.
But he cannot claim that he was denied the kind of “informal
give-and-take between student and disciplinarian” that Goss
requires for a ten-day suspension from school. Goss, 419
U.S. at 584.
Zach’s argument that his due-process rights were violated
because he did not receive written notice, see Ohio Rev. Code
Ann. § 3313.66(A)(1), and LaCross’s argument that she did
not receive written notice within one day of the supposed
suspension, see Ohio Rev. Code Ann. § 3313.66(D), are
unavailing. While they may be relevant state-law claims, they
do not affect our interpretation of the Fourteenth Amendment
because the liberty interest to which Zach’s due-process rights
attach is his interest in his continued education, not his
interest in written notice. See Martin, 295 F.3d at 706 (noting
that in the context of a school suspension that allegedly did
not conform to provisions of state law, “failure to conform
with the procedural requirements guaranteed by state law
does not by itself constitute a violation of federal due
process” and that Goss has established the minimal due
process required in the context of a short-term suspension);
Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir.
1996) (noting that in the context of an allegedly unfair tenure
review, “[v]iolation of a state’s formal procedure [] does not
in and of itself implicate constitutional due process concerns.
. . . [T]he issue . . . is not whether [school administrators]
conformed [with the school’s] . . . grievance procedure in
22 Williams et al. v. Cambridge
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reviewing the tenure decision. Rather, the issue is whether
Purisch was afforded the process due to protect his property
right to a fair tenure review process”); Pro-Eco, Inc. v. Bd. of
Comm’rs, 57 F.3d 505, 514 (7th Cir. 1995) (“Section 1983
affords relief only if the Constitution is offended, and a
violation of a state procedural statute does not offend it.”).
In the end, Goss establishes the minimal procedural
requirements necessary to protect a student in the context of
a short-term school suspension. The notice Howell gave Zach
was satisfactory under Goss because Howell, as the relevant
disciplinarian, discussed the alleged misconduct with Zach,
who was given a chance to respond. Though expeditious and
assuredly informal in nature, Zach received the rudimentary
process required by Goss when the suspension is ten days or
less. Suspended or not, in other words, Zach’s Fourteenth
Amendment due-process rights were not violated.
C. State Law Claims
Rhys and Zach also appeal their state law claims. Rhys
appeals his false arrest and false imprisonment claims, saying
simply that they “rise or fall entirely on the issue of probable
cause. For that reason, the facts and analysis . . . regarding
[his] . . . Fourth Amendment claims apply equally to these
claims under Ohio law.” Williams Br. at 43.
As to the false arrest claim, Hayes and Stevens, as
employees of a political subdivision performing a
governmental function, are immune from tort liability unless
Rhys can show their “(a) . . . acts or omissions were
manifestly outside the scope of the employee’s employment
or official responsibilities; (b) [their] acts or omissions were
with malicious purpose, in bad faith, or in a wanton or
reckless manner; [or] (c) [c]ivil liability is expressly imposed
upon [them] by a section of the Revised Code.” Ohio Rev.
Code Ann. § 2744.03(A)(6)(a)–(c). Rhys has not provided
any evidence that these defendants acted with malice, bad

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faith or in a wanton or reckless manner. And because we
have already concluded that Hayes and Stevens had probable
cause to arrest and detain Rhys and Zach, the probation
officers’ actions were within the scope of their employment
and in good faith.
As to the false imprisonment claim, Rhys must show Hayes
and Stevens confined him intentionally without lawful
privilege and against his consent in a limited area for a
nontrivial period of time. See Feliciano v. Krieger, 362
N.E.2d 646, 647 (Ohio 1977); see also Witcher v. City of
Fairlawn, 680 N.E.2d 713, 715 (Ohio Ct. App. 1996). The
detention must be “purely a matter between private parties for
a private end” in which there is no intention of bringing an
individual before a court. Rogers v. Barbera, 164 N.E.2d
162, 164 (Ohio 1960). Hayes and Stevens did not falsely
imprison Rhys because they confined him in accordance with
Ohio law.
Zach also appeals his malicious prosecution claim. To
prevail, he must establish “(1) malice in instituting or
continuing the prosecution, (2) lack of probable cause and
(3) termination of the prosecution in favor of the accused.”
Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio
1990). Officer Harbin is the only defendant who instituted a
prosecution in this case—charging Zach with aggravated
menacing, which requires proof that one knowingly caused
another to believe the offender would cause serious harm.
Ohio Rev. Code Ann. § 2903.21. Zach acknowledges that
Harbin’s complaint against him “included these elements and
further alleged that Zachary threatened the life of Sadie
LePage, as well as the lives of other students, with a gun or a
bomb.” Durbin & LaCross Br. at 28. Though the prosecution
ultimately terminated in Zach’s favor, Zach has failed to
allege any facts that demonstrate Harbin acted with malice
toward him in commencing this prosecution.
24 Williams et al. v. Cambridge
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III.
For the foregoing reasons, the district court’s decision is
affirmed.

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1In fact, the Columbine school district, the Jefferson Co unty Sheriff’s
Departm ent, and the parents of the two Columbine killers have all been
sued for their failure to act upon real and credible threats. See Castaldo
v. Stone, 192 F. Supp. 2d 1124 (D. Colo. 2001). The existence of such
cases should not, however, deprive students of legal redress for
constitutional infractions by schoo ls, police, and other local officials.
2At least one other federal court vindicated the efforts of police
officers following a threat in the wake o f the Columb ine tragedy in a case
that is distinguishable o n the facts and o bviously not binding on this
panel. See Cohen v. Dubuc, No. 3:99-CV -2566 (EBB), 200 0 W L
1838351, at *4-6 (D . Conn. No v. 28, 2000) (the arresting officers
themselves interviewed the witnesses, revealing an actual date of attack,
and the threats were more coherent and violent).
_____________________________________________
DISSENTING IN PART, CONCURRING IN PART
_____________________________________________
KAREN NELSON MOORE, Circuit Judge, dissenting in
part, concurring in part. I respectfully dissent from Parts II.A
and II.B of the majority’s opinion. The tragic destruction at
Columbine High School in Littleton, Colorado etched
devastating images of adolescent rage run amok onto the
national consciousness. The realization that the perpetrators
of this violence were young teenagers crystallized latent fears
that a new danger had emerged from within our own
communities. In the weeks of national introspection that
followed, parents, students, and educators alike expressed
anxiety that copycat incidents were imminent and stood
vigilant against their occurrence. While I do not discount the
reality that such an environment left these school and law
enforcement officials with little choice but to make
unenviable judgments under enormous pressure,1 I cannot
conclude that post-Columbine trepidation over copycat crimes
systematically discounts real factual disputes over the
violations of these students’ constitutional rights.2 Rhys and
26 Williams et al. v. Cambridge
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Nos. 02-3200/3207
3I concur with the majority’s holding to the extent that it affirms the
district court’s grant of summary judgment as to several other claims
asserted by Rhys and Zach. First, neither plaintiff appealed the grant of
summary judgment with regards to the following claims: intentional
infliction of emotional distress, defamation, violation of First Amendment
rights in contravention of § 1983, conspiracy to violate § 1983 , and the
existence and enforcement of school and city policies that proxim ately
caused the violation of constitutional rights. Notably, neither plaintiff
argued on appeal that an officially executed or tolerated custom or policy
directly led to and was proximately linked with unconstitutional behavior.
See Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993),
cert. denied, 510 U.S. 117 7 (1994 ). Thus, the plaintiffs are not appealing
the central claims against the institutional defendants. Litigants waive any
claims or defenses that they do not raise in their appellate briefs. Bickel
v. Korean Air Lines Co., 96 F.3d 151 , 153 (6th Cir. 1996).
Second, Rhys’s and Zach’s § 198 3 Fo urth Amendm ent claims against
the school official and police department defendan ts fail as a matter of
law because those defendants never “arrested” Rhys or Zach. “[A] person
has been ‘seized’ within the meaning of the Fourth Amendment only if,
in view of all the circumstances surrounding the incident, a reaso nable
person would have believed that he was not free to leave.” United States
v. Mende nha ll, 446 U .S. 544, 554 (198 0). No police officers were present
at the school when Zach was arrested. Additionally, although Zach was
literally “detained” by the school officials, none of the school official
defendants arrested or seized Zach such that they violated his Fourth
Amendm ent rights. See Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010,
1013 (7th C ir. 199 5) (“O nce un der the contro l of the school, students’
Zach have presented several genuine issues of material fact
concerning the circumstances of their arrests and suspensions,
which would permit a reasonable jury to find in their favor.
At this stage of the litigation, we are charged only with the
task of assessing whether such a quantum of evidence has
been proffered and not with the responsibility to balance such
evidence against facts to the contrary. As a result, I would
hold that the grant of summary judgment was improper with
respect to Rhys’s and Zach’s § 1983 Fourth Amendment
claims against Jeffrey Hayes (“Hayes”) and Jean Stevens
(“Stevens”) and their § 1983 Fourteenth Amendment claims
against William Howell (“Howell”) and Thomas Lodge
(“Lodge”).3

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movement and location are subject to the ordering and direction of
teachers and administrators.”). Furthermore, with regards to R hys’s
arrest, summary judgment was appropriate for all the defend ants, except
for defendant Steve ns, as only Stevens was involved in Rhys’s arrest.
Third, the district court properly granted summary judgment on
Rhys’s and Zach’s § 1983 F ourteenth Amendm ent claims against the
Probation Department defendants (Hayes, Stevens) and the Cambridge
Police Department defendants (LePage, Harbin, City of Cambridge)
because they have no authority over suspensions in the Cambridge
schools.
Fourth, I concur fully with the majority’s discussion of the state-law
claims.
I. BACKGROUND FACTS
I explicate my understanding of the facts because part of
my disagreement with the majority stems from our somewhat
divergent interpretations of the record, particularly the facts
surrounding Zach’s arrest. After the phone call on
Wednesday, April 21, 1999, during which Zach allegedly told
Kayla Hollins about his plan to kill the “preps” and
implicated Rhys in the process, Kayla made no mention of the
phone call to her parents, to her friends, or to school
authorities for nearly two days. Kayla first discussed the
alleged contents of the phone call in a note written to Sadie
Le Page on Friday, April 23, 1999. A few hours and several
class periods later, the girls approached Zach and asked him
whether the note’s contents were true, allegedly receiving an
affirmative answer. Zach disputes that he confirmed the
note’s veracity, and before he had a chance to read the note,
Kayla ripped the note in two, allegedly because she did not
want Zach to read the note and because she did not want him
to get in trouble. In her testimony at Zach’s trial, she
intimated that the note and the following drama were jokes,
and that she did not expect or want Zach to get arrested.
Other facts bolster the conclusion that Kayla may have
fabricated or embellished her conversation with Zach; Kayla
was reported to exaggerate at times and had caused trouble for
28 Williams et al. v. Cambridge
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others in the past by prevaricating. It was only after the lunch
period that Sadie and Katie finally decided to inform school
officials of the threat, approaching the school’s guidance
counselor, Julie Orsini, who in turn contacted Vice-Principal
William Howell.
Howell then took the lead role in “investigating” the
incident. He met with Sadie and Katie before eventually
calling Kayla to his office. All three girls wrote statements in
which they described the events of that morning and their
interactions with Zach. Howell did not investigate the
veracity of their claims; he instead assumed that the girls were
telling the truth. He never saw the note that Kayla had
written. At some point after he spoke with the girls, Howell
began the process of “emergency removing” Zach from the
school, Howell contacted Assistant Superintendent James
Spisak (“Spisak”), who agreed that Zach needed to be
transferred out of the school because of a “continuing danger”
that Zach posed. See Ohio Rev. Code § 3313.66(C).
After failing to reach Zach’s mother, Howell called Hayes,
Zach’s probation officer, so that Howell could release Zach to
an adult. Hayes and Howell spoke twice before Hayes arrived
at the school, and during the second phone call, Howell
informed Hayes of the girls’ claims that Zach had threatened
them with violence. Either before going to the school or
while in transit, Hayes spoke with Stevens, his supervisor and
the Chief Probation Officer of Guernsey County, and
erroneously informed her that two of their juvenile probation
“clients” were implicated in a bomb threat. Hayes mentioned
that the Cambridge police had begun an investigation, but
Hayes did not name any officers, and he later testified that he
did not see any police officers when he arrived at the school.
Upon arrival, Hayes met with Howell, who informed Hayes
about the statements of the three girls. Hayes asked Howell
“whether these [girls] were reputable students,” because he
wanted to determine “whether it was somebody trying to get

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4Hayes was deposed on May 3, 200 1. His deposition does not appear
in the Joint Appendix, but a copy of the deposition is a part of the official
district court record.
even with Zach or that type of thing.” Hayes Dep. at 21.4
However, Hayes never spoke with girls; he did not assess the
girls’ credibility himself, nor did he conduct an in-depth
investigation. Hayes testified that his decision to seize Zach
was based on the girls’ written statements, Howell’s
understanding of the contents of Kayla’s torn note, Howell’s
intuitions about Zach, and Hayes’s belief, shaped primarily by
Howell, that the girls were reputable sources. However,
Hayes did not learn that Kayla had a reputation, even among
her friends, for embellishment of the truth, nor did he learn
that Kalya had disciplinary problems in the past.
The details of Zach’s arrest are critical. There are several
nontrivial disputes concerning the few minutes preceding
Zach’s arrest, the significance of which plays no small role in
my decision to dissent. Howell called Zach into his office
and questioned him about the girls’ accusations. Howell
stated: “When questioning Zach in the office, he had
indicated that he was joking around and the statement was,
You know how Rhys is.” Joint Appendix (“J.A.”) at 581
(Howell Dep.). Howell also testified that Zach confirmed the
contents of the note, although Howell gave contradictory
testimony about whether he ever saw the note or showed it to
Zach. Compare J.A. at 594 (Howell Dep.) with J.A. at 296
(Zach Durbin Trial, Howell Test.) (“[T]hey [the girls] stated
that Zach had written a note but I never was able to resurface
the note.”).
For his part, Zach disclaimed that he had made any threats.
Zach stated in his deposition that Rhys had been “joking
around” with his mother, Gail Allen, when Rhys and Zach
were discussing the Columbine incident with Allen several
hours before Zach and Kayla’s telephone call. J.A. at 469-70.
30 Williams et al. v. Cambridge
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Nos. 02-3200/3207
The “joking around” consisted of Rhys asking his mother
what she would do if he and Zach perpetrated an act like the
tragedy that befell Columbine, but it did not include any
indication that Zach or Rhys intended to harm anyone. Zach
stated that he did not “joke around” with Rhys’s mother. The
majority believes that Zach informed Howell about Rhys’s
“joking around.” However, Zach’s deposition does not
indicate that he told Howell that either he or Rhys had been
joking around with Rhys’s mother. His deposition testimony
about his discussion with Howell is as follows:
Q: Tell me what happened when you got to the office.
A: We went in Mr. Howell’s office, and he closed the
door, and Mr. Howell told me that there had been a
note circulating and three girls came to the office
with the note and told him that I was — me and
Rhys said we was going to blow up the school.
Q: Do you know what he was talking about when he
said that?
A: I knew what he was talking about after he said a
note was circulating.
Q: You knew what three girls he was talking about?
A: Yeah.
Q: What did you say to that?
A: He just kept going on with the story and then — I
was like, no, that’s not true. And then he just kept
going on and then he asked me, he said, do you have
anything to say, and then I started telling him what
really happened about me being at Rhys’s house and
then my conversation with Kayla, and then that’s

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when Jeff [Hayes] was like, “I’ve heard enough. Set
down your books.”
J.A. at 473-74 (Durbin Dep.) (emphasis added). Zach stated
clearly in his deposition that he never told Howell that he had
joked with Kayla about “doing something like the kids did at
Columbine.” J.A. at 474.
During a second phone call with Stevens before Hayes
entered Howell’s office, Hayes reported that he had taken
statements from three girls whom he found to be reputable,
prompting Stevens to approve Zach’s “arrest.” At some
point, Hayes went into Howell’s office, but it is not clear at
what point during Howell’s questioning of Zach this
occurred. It is also uncertain whether Hayes, as the actual
arresting officer, actually heard Zach admit that he had made
the threats, if Zach ever said such a thing. Hayes did not
corroborate Howell’s assertion that Zach admitted to making
the threats. Furthermore, Hayes never asked Zach to recount
his view of the day’s events. Hayes later stated: “I’m not the
one that’s going to be investigating. I didn’t want him to say
anything to me. I never want the kid to say anything to me
that, you know, I might have to testify against him or
something like that. He did profess his innocence to me.”
Hayes Dep. at 35-36. After some undefined but brief period
of time, during which Zach tried to exculpate himself, Hayes
told Zach to set down his books, and then Hayes arrested
Zach.
Rhys was not involved with any aspect of the investigation
that took place at the school on Friday, April 23, as he was
absent from school. Neither Hayes nor Stevens observed
Rhys or spoke with the girls about Rhys. Rhys’s name
became entwined in these events only because of Kayla’s
note, as neither Howell nor Zach recalled that Rhys’s name
came up in the conversation in Howell’s office.
32 Williams et al. v. Cambridge
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5Zach can assert a § 198 3 Fo urth Amendme nt claim against b oth
Hayes and S tevens, under theories of direct and supervisory liability,
whereas Rhys can pursue his § 198 3 Fo urth Amendme nt claim only
against Stevens based upon supervisory liability. Hayes arrested Zach and
another probation officer, Becky Ma sters, arrested Rhys; Stevens ordered
the arrest of both in her capacity as the supervisor of both probation
officers. The supervisor of a violating party may be liable for that party’s
violation of a third person’s constitutional rights, if the supervisor
“encouraged the specific incident of misconduct or in some other way
directly participated in it.” Bellamy v. Bradley, 729 F.2d 416 , 421 (6th
Cir. 198 4). It is not disputed that Stevens “at least implicitly authorized,
approved or knowingly acquiesced” in the detention of bo th students. Id.
II. RHYS’S AND ZACH’S § 1983 CLAIMS
Rhys and Zach assert two separate § 1983 claims based
upon alleged violations of their Fourth and Fourteenth
Amendment rights. I believe that the genuine issues of
material fact attendant to both claims require the reversal of
the district court’s grant of summary judgment.
A. The Fourth Amendment Claims
Recognizing that all evidence and inferences from that
evidence must be taken in a light most favorable to Rhys and
Zach, I believe that it is patently clear that there is a genuine
issue of material fact concerning whether or not Hayes and
Stevens had probable cause to arrest them.5 Probable cause
means the “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is
about to commit an offense.” Criss v. City of Kent, 867 F.2d
259, 262 (6th Cir. 1988) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)). “The Fourth Amendment . . .
necessitates an inquiry into probabilities, not certainty.”
United States v. Strickland, 144 F.3d 412, 415 (6th Cir.
1998). In analyzing an officer’s actions, we must look at the
totality of the circumstances from a reasonable officer’s

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perspective at the time of the arrest so as to avoid the effect of
hindsight bias. Klein v. Long, 275 F.3d 544, 550 (6th Cir.
2001). The arresting officer does not need to demonstrate that
prima facie proof exists before arresting a suspect, but the
officer’s underlying motivation for the arrest must be based
on something more than mere suspicion. See United States v.
Bennett, 905 F.2d 931, 934 (6th Cir. 1990).
Even though an officer does not have to search for
balancing evidence after establishing that probable cause
existed, an officer must consider all evidence, including
exculpatory evidence, before making a probable cause
determination. Officers cannot make “hasty, unsubstantiated
arrests with impunity.” Ahlers v. Schebil, 188 F.3d 365, 371
(6th Cir. 1999). Nor can they “simply turn a blind eye
towards potentially exculpatory evidence known to them.”
Id. at 372. Furthermore, there can be no probable cause for an
arrest when it is based upon an officer’s reliance on vague
information from a source of untested reliability. Wong Sun
v. United States, 371 U.S. 471, 482 (1963). In general, the
question of probable cause is one for the jury, unless it is clear
that only one reasonable determination is possible. Crockett
v. Cumberland College, 316 F.3d 571, 581 (6th Cir. 2003).
1. Rhys’s § 1983 Fourth Amendment Claim Against
Stevens
Considering all available evidence and inferences from that
evidence in the light most favorable to Rhys, a reasonable
jury could conclude that the facts and circumstances of which
Stevens was aware did not justify Rhys’s arrest because
Stevens relied blindly upon Hayes’s recommendations,
without confirming that Hayes had tested the allegations of
the three students, investigated the incident beyond accepting
Howell’s version of the events, or even spoken with Rhys.
Compare Criss, 867 F.2d at 262; Ahlers, 188 F.3d at 372.
When Hayes called Stevens, Rhys was not at school, and
Hayes’s knowledge of Rhys’s potential involvement came
34 Williams et al. v. Cambridge
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Nos. 02-3200/3207
only thirdhand (Hayes spoke with Howell about Kayla’s note,
which recounted the alleged conversation with Zach from the
night before, during which Rhys’s name was briefly
mentioned). Hayes did nothing further to investigate Rhys’s
involvement, nor did Stevens order him to do so. Hayes did
not speak to the girls, nor did he confirm Rhys’s involvement
in the threat. While the girls did believe that Zach had
personally indicated the veracity of his threat, no comparable
evidence existed as to Rhys. The only evidence linking Rhys
to the threat was Kayla’s note, which Hayes never saw, and
Kayla’s statements, which Hayes never took. Both of these
were tangential pieces of evidence, as Kayla never actually
spoke with Rhys, a fact that Hayes never uncovered.
One could conclude that it was impossible for Stevens to
believe that probable cause existed based upon the extremely
limited evidence gathered by Hayes, who had neglected to
speak with or observe the accused, to test the allegations of
the principal witnesses, or to investigate Rhys’s involvement
more than superficially. Hayes relied on hearsay information
about a student who was not even in attendance in school and
whose name became intertwined in this web of events only
because of Kayla’s note. Hayes then relayed this data to
Stevens. From that limited information, Stevens authorized
a detention. As the Supreme Court has said, there can be no
probable cause for an arrest where it is based upon an
officer’s reliance on vague information from a source of
untested reliability. Wong Sun, 371 U.S. at 482.
Consequently, I believe that there is a genuine issue of
material fact concerning whether Stevens had probable cause
to order the arrest of Rhys.
2. Zach’s § 1983/Fourth Amendment Claim Against
Hayes and Stevens
The circumstances surrounding Zach’s arrest undoubtedly
present a closer call, but ultimately I believe that the district

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6For simplicity’s sake, Stevens and Hayes are grouped together in
this discussion, because both are liable for H ayes’s actions.
court’s grant of summary judgment was in error.6 Much of
the same rationale that supports my reasoning regarding
Rhys’s claim against Stevens applies here. Hayes arrived at
the school mistakenly believing that the school was handling
an impending bomb threat, a misunderstanding that he
conveyed to Stevens. Relying solely on Howell’s own
limited investigation and Howell’s belief that the girls were
“reputable and believable,” Hayes performed no additional
investigation, foregoing an opportunity to assess for himself
the girls’ credibility and to discover that at least one of the
girls had a reputation for exaggeration.
A sharp difference between Zach’s and Rhys’s arrests is
that Hayes did actually speak with Zach. Hayes had an
opportunity to assess Zach’s behavior and his credibility, but
Hayes declined to hear Zach’s recounting of events, mainly
out of a belief that this would protect Zach. This deprived
Hayes of the ability to make a grounded determination that he
had probable cause to arrest Zach. I do not endorse a
wholesale rule that law enforcement officials investigating a
crime or a threat of a crime must always speak with the
alleged perpetrator before determining that probable cause
exists, particularly when sufficient inculpatory evidence is
apparent to the arresting officer. See Klein v. Long, 275 F.3d
544, 551 (6th Cir. 2001) (holding that officers had probable
cause to arrest without questioning the suspect when officers
responded to a domestic violence 911 call and immediately
saw a visibly upset and bleeding woman who told the officers
that her husband had physically harmed her). Nonetheless,
when sufficient inculpatory evidence is not immediately
obvious, an arresting officer has done little to investigate the
threats allegedly made by the accused, and the officer has not
spoken with the principal accusers, the determination of
probable cause is undermined.
36 Williams et al. v. Cambridge
Bd. of Educ. et al.
Nos. 02-3200/3207
While Howell testified that Zach admitted making threats
against Kayla, but that Zach was only “joking around” in
making such intimidations, Zach denies ever having made
such threats. The existence of this factual dispute highlights
two problems with the majority’s holding. First, Zach
disputes that he ever admitted threatening Kayla. Zach told
Howell that in his conversation with Kayla he merely
recounted the details of an innocuous conversation with
Rhys’s mother. In his deposition, Zach declared that he did
not confirm the veracity of the ripped note’s contents to
Howell. It is not for this court to decide whether Zach or
Howell is more believable; rather, we must assume that
Zach’s story is true for the purposes of reviewing the district
court’s grant of summary judgment. Second, even if Zach did
make such an admission, there is no evidence that Hayes
heard it, and thus it could not have informed his probable
cause determination. As the arresting officer, it is Hayes’s
probable cause calculus, and not Howell’s, with which we
should be concerned. The majority appears to focus on
Howell’s determination of the trustworthiness of the three
girls, but it is Hayes’s probable cause determination, not
Howell’s, that is the focus of this case. Neither Howell nor
Hayes suggest that Zach admitted to having made the threats
in Hayes’s presence or that Howell told Hayes about the
supposed “confession” before Hayes decided to arrest Zach.
There is no doubt that Hayes was faced with a difficult and
delicate choice. He arrived at the school and was told by
Vice-Principal Howell that Zach, who had a history of prior,
albeit nonviolent, juvenile delinquency, had threatened
several students two days after the Columbine disaster.
However, Hayes, as a probation officer, had little experience
in investigating crimes or potential crimes. See Hayes Dep.
at 25 (“We don’t normally investigate things. We are asked
to act on an emergency basis . . . . That’s why I wanted to see
what these statements said, to see if it was, you know,
possibly believable, and then we would call on law
enforcement to investigate it . . . .”); see also United States v.

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Guzman, 75 F.3d 1090, 1096 (6th Cir.), cert. denied, 519 U.S.
906 (1996) (“Law enforcement officers naturally reach
conclusions based on their training and experience.”). He did
not ask Howell to describe in more depth the chain of events
that led to Zach’s emergency removal. He did not inquire of
Howell about the bases for Howell’s determination that the
girls were telling the truth. He did not interview any of the
students involved, either the girls or Zach, to make his own
assessment of their reliability. He did not investigate whether
Zach even had access to weapons that would allow him to
carry through the alleged threat. Hayes did not make another
attempt to contact Zach’s parents or to keep Zach at the
school until his parents could be reached, despite the fact that
there was no suggestion that Zach would have engaged in any
violence waiting for his parents at the school. This was not a
situation in which Howell or another member of his staff
observed Zach make a threat or commit any act of violence or
in which multiple warning signs about Zach’s behavior and
history made his alleged threat more likely. By analogy, it
would surprise the reasonable person if the police could have
probable cause to arrest him or her based solely upon hearsay,
where no observable evidence supported an allegation of
wrongdoing and the police failed to question either the
accuser or the accused, but instead relied on the statement of
a third party to whom the accuser recounted the hearsay.
Our decision in Williams v. Ellington, 936 F.2d 881 (6th
Cir. 1991), provides some contrast about the level of
investigation that must take place before school officials can
act, although the legal question in Williams concerned
probable cause to search as opposed to probable cause to
arrest. See New Jersey v. T.L.O., 469 U.S. 325, 341-42
(1985) (establishing that a student search “does not require
strict adherence to the requirement that searches be based on
probable cause” and stating that a search will satisfy a
“reasonableness” requirement “when there are reasonable
grounds for suspecting that the search will turn up evidence”
of an illegality). In Williams, the plaintiff, a teenage girl,
38 Williams et al. v. Cambridge
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Nos. 02-3200/3207
claimed that her high school violated her Fourth Amendment
rights by strip searching her without probable cause as part of
an investigation into allegations that she had been consuming
drugs at the school. Id. at 882. A fellow student first alerted
the principal to the problem by claiming that she had
witnessed the plaintiff and a friend ingesting drugs in class.
The principal verified that the accusing student had no
animosity towards the plaintiff, ruling out any ulterior
motives of the accuser, and then launched a multiday
investigation of the plaintiff. He approached several of the
plaintiff’s teachers, who corroborated her strange behavior
and reported a note that the plaintiff wrote in which she
referred to drug use. The principal also collected information
from the school’s guidance counselor, the plaintiff’s aunt, and
the friend’s father, all of whom expressed concern that both
students may have been taking drugs. The principal acted
only when the student who first made the allegation again
approached him and complained for the second time that the
plaintiff was ingesting drugs in class. Id. at 883.
We held that reasonable suspicion — the standard set forth
in New Jersey v. T.L.O. — did exist for the strip search in
Williams. Based upon T.L.O.’s analogy to the reasonable-
suspicion standard set forth in Terry v. Ohio, 392 U.S. 1
(1968), we wrote, “We can correlate the allegations of a
student, implicating a fellow student in unlawful activity, to
the case of an informant’s tip,” which by itself meets the
threshold for reasonable suspicion. Williams, 936 F.2d at
888. Yet, when “there is concern that students will be
motivated by malice and falsely implicate other students in
wrongdoing, that type of situation would be analogous to [an]
anonymous tip,” which does not establish reasonable
suspicion in the absence of further investigation. Id. at 888-
89. We upheld the lower court’s dismissal of the plaintiff’s
suit in Williams because in addition to the complaining
student’s “tip,” which the principal determined was not borne
of malice, the principal uncovered strong evidence during his

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7Because I believe that Rhys’s and Zach’s Fourth Amendment claims
should proceed beyond the summary judgment stage, Hayes’s and
Stevens’s qualified immunity argum ents must be taken into acco unt.
Pub lic officers who perform discretionary functions “generally are
shielded from liability for civil damages insofar as their conduct does not
violate clearly established statuto ry or co nstitutional rights of which a
reasonable person would have known.” Ha rlow v. Fitzgerald , 457 U.S.
800, 818 (1982). The applicability of qualified immunity depends on: 1)
whether the facts viewed in a light mo st favorable to the plaintiffs
dem onstrate that a constitutional violation occurred; 2) whether the
ensuing investigation, including the suspicions of the
plaintiff’s family that she was using drugs.
Juxtaposing the events in Williams with the facts of this
case demonstrates the insufficiency of the investigation of
Zach’s threat. Both Howell and Hayes satisfied themselves
that neither Kayla nor the other girls leveled these accusations
against Zach out of malice; accordingly, Kayla’s allegations
may be best analogized to an informant’s tip. While these
allegations may have created a reasonable suspicion for
Howell or Hayes to search Zach for weapons, without further
investigation, they did not present “facts and circumstances
. . . sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to
commit an offense.” Criss, 867 F.2d at 262. Unlike the
principal in Williams, Hayes did not engage in any further
investigation of Zach or his threats. Hayes did not necessarily
need to spend days investigating the incident before
concluding that he had probable cause, but Hayes could have
conducted at least some minimal level of investigation in a
short period of time that afternoon. Taking into account the
totality of all the facts and circumstances of which Hayes was
aware, there are enough factual disputes to permit a
reasonable jury to conclude that Hayes, and Stevens through
her supervisory role, violated Zach’s Fourth Amendment
rights by arresting him without probable cause.7
40 Williams et al. v. Cambridge
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Nos. 02-3200/3207
violation involved a clearly established right of which a reasonable officer
would have known; and 3) whether the plaintiff adduced sufficient facts
to prove that the officer’s actions were unreaso nable in light of the
constitutional right. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).
I do not think it can presently be determined whether Hayes and Stevens
are entitled to qualified immunity because “[s]ummary judgment is not
app ropriate if there is a genuine factual dispute relating to whether the
defendants committed acts that allegedly violated clearly established
rights.” Dickerson v. McClellan, 101 F.3d 115 1, 11 58 (6th Cir. 19 96); see
also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (“Summary
judgment is not appropriate if there is a genuine factual dispute relating
to whether the defendants committed acts that allegedly violated clearly
established rights.”) (quotation omitted).
8Under Ohio state law, a school board m ay suspend any student up
to ten days, but it must give stud ents written notice of the intention to
suspend and m ust pro vide students with an opportunity to appear at an
informal hearing and challenge the reason for the intended suspension.
See Ohio Rev. Code § 3313.66(A)(1)-(2). The Cambridge Board of
Education established its own suspension and removal guidelines under
the auspices of § 3313.66(A). Under these procedures, a student may be
B. Fourteenth Amendment Claims
The majority also errs in its determination that summary
judgment was proper as to the § 1983 Fourteenth Amendment
claims. The Fourteenth Amendment’s guarantee of
procedural due process requires that, for a suspension of no
more than ten days, a school administration give a student
notice of the charge(s) against him, an explanation of the
evidence underlying those charges, and an opportunity to
attend a hearing during which the student can present a
defense. Goss v. Lopez, 419 U.S. 565, 581 (1975); see also
Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000) (citing
Goss for principle that students cannot be suspended without
an opportunity for a hearing). In general, the hearing, which
can be informal, should occur before the student is removed
from the school, although this is not necessary for a procedure
to pass constitutional muster. Buchanan v. City of Bolivar, 99
F.3d 1352, 1359 (6th Cir. 1996).8 The parties chiefly

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suspended by the Superintendent or a principal for up to ten days so long
as there is notice of and opportunity for a preliminary hearing before the
suspension is meted out. During this hea ring the student must have a “full
opportunity” to state why he or she should not be suspended. However,
this preliminary hearing is no t required if “a clear and present danger
exists.” W ithin one schoo l day after the suspension, the principal must
notify the student’s parents about the reason for the suspension and notify
them of their right to appeal. Then, a student may file a written appe al to
the Superintendent within five days. The Superintendent can upho ld the
suspension, reduce it, or reverse it co mpletely, but if he chooses to
maintain the suspension, the student then has the opportunity further to
appeal the suspension to the B oard o f Education within five days.
Additiona lly, for “emergency removal,” a principal must provide a
hearing concerning the removal “[a]s soon as practicable after a removal
in excess of twenty-four (24) clock hours but within three (3) school
days.” J.A. at 348 (Cam bridge Bd. of Educ . Procedures).
disagree over whether either student actually was suspended
and not whether either student received adequate notice. The
defendants do not contest the lack of notice because they
argue that the parents of Rhys and Zach voluntarily kept them
from school during the ten days they were allegedly
suspended. Because I would hold that a genuine dispute of
material fact exists regarding whether or not the school
actually suspended the two students, I would reverse the
district court.
1. Rhys
Taking the evidence in a light most favorable to Rhys,
summary judgment should not have been granted. The
majority points to some pieces of evidence that cut against
Rhys’s claim. Rhys never received any paperwork regarding
a suspension, a fact that Howell and Lodge latch onto as proof
that no suspension ever existed. Additionally, Rhys’s mother
stated that part of the reason for Rhys’s absence was her
reluctance to expose him to any backlash from his peers.
However, when one views the evidence in a light most
favorable to Rhys, as we must, genuine disputes of material
42 Williams et al. v. Cambridge
Bd. of Educ. et al.
Nos. 02-3200/3207
fact become evident. The absence of any paperwork
regarding Rhys’s suspension does not conclusively suggest
that no suspension existed, particularly given Howell’s
inconsistent testimony regarding both the existence of
suspension paperwork and his intent to suspend the two
students. Furthermore, Rhys’s mother did not keep Rhys out
of school solely because she alone feared a backlash against
Rhys; the principal, Mrs. Smith, advised her to keep Rhys out
of school. It seems doubtful that the principal of the school
would advocate a student missing ten days of school or even
tolerate a student missing such a long period of time in the
absence of some formal or informal suspension.
2. Zach
Zach presents even more evidence of a genuine factual
dispute regarding the existence of a suspension. Bobbi
LaCross, his mother, never received official notice of the
suspension, yet on April 26, Howell made Zach sign a paper
regarding the suspension and told LaCross “that Zach was
going to be suspended; but if he was found not guilty, then
the suspension would be canceled.” J.A. at 617 (LaCross
Dep.). LaCross asked Howell about appealing the
suspension, and he responded that he would mail her the
papers. After failing to receive the papers, LaCross called
Lodge several times to complain; her conversations with him
suggested that Lodge had seen the suspension papers and was
frustrated that LaCross had not obtained them yet. Upon
finally receiving the papers, long after the suspension period
had ended, LaCross tried to appeal, only to be told that there
was nothing to appeal because no suspension had ever issued.
This sequence of events creates a factual dispute about
whether the school officials either suspended Rhys and Zach
without notice or constructively suspended them, by telling
their parents that they were suspended, but not moving
through the formal suspension process.

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The majority also reasons that summary judgment was
proper because even assuming that a suspension existed, the
school satisfied the Goss due process requirements by giving
Zach proper notice, an explanation of the evidence supporting
the charge, and an opportunity for Zach to respond. Maj. Op.
at 20-22. The majority reaches this conclusion based upon
the brief conversation Zach and Howell had in Howell’s
office shortly before Zach was arrested. I cannot concur for
two reasons. First, whatever the limited notice and
opportunity for objection given to Zach, it occurred in the
context of Zach’s emergency removal, not his alleged
suspension. Howell questioned Zach to determine whether
Zach should be emergency removed from the school.
Emergency removal is different than suspension; the former
involves an immediate, limited duration expulsion from
school, whereas the latter results in a longer absence from
school. See J.A. at 348 (Cambridge Bd. of Educ. Procedures).
While Howell may have given Zach the required process with
regard to the emergency removal, the emergency removal
reached its end point before Zach learned of his ten-day
suspension. Assuming, as we must, that Howell actually
suspended Zach conditioned upon the result of Zach’s trial,
Howell afforded Zach no opportunity to review the evidence
or respond to the charges that prompted the ten-day
suspension. The purposes of Goss would be defeated if a
school were permitted to institute multiple suspension
proceedings against a student, even if based upon the same
incident, but only allowed the student to defend him or herself
once.
Second, there is a factual dispute over how much of an
opportunity Zach had to respond to the charges and evidence
brought against him in the emergency removal “proceeding.”
While Howell suggests that Zach had a chance to respond and
admitted to making threats, Zach presents a completely
different recollection of the events of that afternoon. Zach
stated in his deposition that he denied ever making the threats
to Kayla. The majority again assumes, as it does throughout
44 Williams et al. v. Cambridge
Bd. of Educ. et al.
Nos. 02-3200/3207
its analysis, that Howell’s testimony about Zach’s
“confession” is an accurate description of what actually
occurred, but this presumption turns the summary judgment
standard on its head; we must assume, for purposes of
summary judgment, that Zach’s story, not Howell’s, is the
correct one. Zach claimed that Howell did not give him much
of an opportunity to defend himself, because Hayes arrested
Zach before he could fully explain. While an “informal give-
and-take between students and disciplinarian,” Goss, 419 U.S.
at 584, may constitute enough process to satisfy Goss, the
parties dispute precisely how much informal conversation
occurred between Zach and Howell. It is the place of the jury,
and not this court, to reconcile these conflicting testimonies
regarding whether Zach had enough of an opportunity to
defend himself to satisfy Goss. Consequently, I do not agree
that the district court should have granted summary judgment
to the defendants.
III. CONCLUSION
The issue presented to this court is not whether Rhys and
Zach should ultimately prevail on the merits in their action
against the defendants. The issue is whether, taking all the
evidence in the record and the inferences from that evidence
in the light most favorable to Rhys and Zach, genuine
disputes of material fact exist that would permit a reasonable
jury to find in their favor. Whereas the majority assumes
facts to be true that are actually disputed, I believe that
genuine issues of material fact surround Rhys’s Fourth
Amendment claim against Stevens, Zach’s Fourth
Amendment claims against both Hayes and Stevens, and both
students’ Fourteenth Amendment claims against Howell and
Lodge. The district court thus erred in granting the
defendants’ motion for summary judgment. The school,
police, and probation officials faced excruciatingly difficult
decisions amidst the fear-drenched penumbra of Columbine,
but in the presence of genuine issues of material fact, it is the
task of the fact-finder to evaluate the significance of these

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contextual factors to the determination of probable cause and
the decision to suspend the students. For these reasons, I
respectfully dissent.

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