Andrus v. City of Cincinnati Police Department et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CALVIN ANDRUS, 	Case No. 1:24-cv-572
Plaintiff,
v. 	Bowman, M.J.
KRAIG KUNZ, et al.,
Defendants.
MEMORANDUM ORDER AND OPINION
Plaintiff Calvin Andrus filed this action against Defendants City of Cincinnati and
Sergeant Kraig Kunz. This matter is before the Court on Defendants’ Motion for Summary
Judgment. (Doc. 47). For the following reasons, Defendants’ Motion is GRANTED with
respect to Counts I through VI. Count VII is DISMISSED without prejudice for lack of
subject-matter jurisdiction.
I. 	Standard of Review
When reviewing a motion for summary judgment, “a court must view the facts and
any inferences that can be drawn from those facts ... in the light most favorable to the
non-moving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (internal quotation marks omitted). Summary judgment is appropriate where “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). 	“Weighing of the evidence or making credibility
determinations are prohibited at summary judgment - rather, all facts must be viewed in
the light most favorable to the non-moving party.” Keweenaw Bay, 477 F.3d at 886.
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After a moving party has carried its initial burden of showing that no genuine
dispute of material fact remains, the burden shifts to the non-moving party to present
specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986). “The ‘mere possibility’ of a
factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to survive
summary judgment, the non-moving party must present probative evidence from which a
reasonable jury could find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50, 106 S.Ct. 2505 (1986). The court determines whether the evidence requires
submission to a jury, or whether one party must prevail as a matter of law because the
issue is so one-sided. Id. at 251-52.
II. 	Factual Background
On November 19, 2023, City of Cincinnati police officers were at the scene of a
fatal, single-car accident on Spring Grove Avenue. (Doc. 41, Kunz Dep. at PageID 813-
15). When Defendant Sergeant Kraig Kunz arrived, a perimeter of yellow crime scene
tape had been established around the scene, which included downed electrical wires that
were live. (Id. at PageID 816, 818; Doc. 37, Neville Dep. at PageID 701). A motor vehicle
subsequently drove through the previously set crime scene tape and disregarded officers’
orders to turn around. (Doc. 41, Kunz Dep. at PageID 839; Doc. 10, Kunz MVR at 1:52-
2:23).
Plaintiff Calvin Andrus—an independent photojournalist who documents public-
safety incidents—learned of the crash over police radio traffic, drove to the scene, and
began taking photos and videos on foot from outside the crime scene tape. (Doc. 35,
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Andrus Dep. at PageID 438; 	Doc. 10, Kunz MVR at 26:45-29:00). Plaintiff then moved
closer to the accident, walking west along the crime scene tape and positioning himself
at the intersection of Spring Grove Avenue and the William P. Dooley Bypass. (See Doc.
35, Andrus Dep. at PageID 429, 432, 508). The sidewalk in that area was blocked by
crime scene tape, and the travel lane where Plaintiff stood had been blocked by police
vehicles. Plaintiff remained outside the crime scene tape while recording video of skid
marks on the road. (Doc. 35, Andrus Dep. at PageID 438-39; Doc. 10, Kunz MVR at
29:00-29:30).
Sgt. Kunz noticed Plaintiff shortly after he changed positions. Kunz testified that,
during the course of his crash-scene investigation, he observed tire skid marks extending
from the crash into Spring Grove Avenue and beyond the crime scene tape near where
Plaintiff was standing. (Doc. 41, Kunz Dep. at PageID 824-25, 830). Kunz testified that,
because the skid marks extended outside the taped boundary, he determined that the
crime scene should be expanded to encompass that evidence. 1 (Id. at PageID 830).
Plaintiff contends that Kunz did not mention the skid marks during their encounter and
disputes whether Kunz actually noticed them or approached Plaintiff for that purpose.
(Doc. 50 at PageID 1090).
Both Plaintiff and Kunz were wearing body-worn cameras during their subsequent
encounter. Kunz repeatedly stated to Plaintiff that “you gotta go” and “you gotta go back
1 Police Specialist Mike Flamm, a traffic-unit investigator who measured and mapped the crash evidence,
identified tire marks near Plaintiff’s location after reviewing the footage. (Doc. 45, Flamm Dep. at PageID
927-28, 977-78). Flamm identified a yaw mark crossing the crosswalk line in Kunz’s body-camera footage
and explained that, although Plaintiff stood outside the original tape, documented evidence extended
beyond that boundary and the scene needed to be expanded. (Id. at PageID 980-83). He further testified
that tire marks are short-lived evidence susceptible to alteration or dissipation and that a crash-scene
perimeter must be large enough to encompass the evidence. (Id. at PageID 970-72). Flamm could not say
that Plaintiff stood directly on a tire mark, but placed him within the evidence area. (Id. at PageID 981).
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down that way,” pointing east up Spring Grove Avenue, away from the crash scene. (Doc.
35-9, Andrus BWC at 2:00-23. See also Doc. 10, Kunz BWC at 0:10-32 (depicting Kunz’s
pointing gestures 2 )). Kunz explained that “because this is a crime scene, you are in the
street, you gotta go back down that way.” (Doc. 35-9, Andrus BWC at 2:14-20). Plaintiff
replied, “Nope. Nope I don’t” and then said to Kunz, “let me educate you just like I did the
other guys . . . I don’t care what you are telling me, stop talking, read, read, read,”
attempting to have Kunz read a card he prepared to explain his legal rights around crime
scenes. (Doc. 35-9, Andrus BWC at 2:20-35; Doc. 35, Andrus Dep. at PageID 440). Kunz
indicated that he did not need to read Plaintiff’s materials and attempted to direct Plaintiff
away from the scene, grabbing Plaintiff by the arm and stating “let’s go this way,” “go this
way,” or “let’s go” approximately nine more times during their encounter. (Doc. 10, Kunz
BWC at 0:30-43; Doc. 35-9, Andrus BWC at 2:30-2:50). Plaintiff insisted that Kunz read
his legal materials and warned Kunz not to touch him unless he wanted to be sued. (Doc.
35-9, Andrus BWC at 2:30-3:00). Kunz told Plaintiff he was “about to get arrested” and
that he was “moving the crime scene back here.” (Doc. 10, Kunz BWC at 0:35-47; Doc.
35-9, Andrus BWC at 2:45-2:56). Kunz testified that, while he was attempting to escort
Plaintiff from the area to be incorporated into the expanded crime scene, Plaintiff pulled
away and attempted to walk back toward the original crime-scene tape. (Doc. 41, Kunz
Dep. at PageID 836, 843. See also Doc. 10, Kunz BWC at 0:36-55; Doc. 35-9, Andrus
BWC at 2:56-3:02). Plaintiff continued to insist that the officers read his materials and
responded, “Then arrest me. Arrest me. I’ll go to jail.” (Doc. 10, Kunz BWC at 0:47-56;
2 Sgt. Kunz’s camera is without audio until approximately 0:30; however, the recording before this depicts
Kunz pointing repeatedly.
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Doc. 35-9, Andrus BWC at 2:55-3:04). At this point, Kunz stated “You will go to jail,”
handcuffed Plaintiff, and escorted him to his police car. (Doc. 10, Kunz BWC at 0:59-1:54;
Doc. 35-9, Andrus BWC at 3:07-4:02).
While detained in the back of the police car, Plaintiff observed a Duke Energy truck
enter the taped-off area and saw two pedestrians walking through the area. (Doc. 35,
Andrus Dep. at PageID 460-62). The Duke Energy employee was permitted to enter to
address the downed electrical lines. (Doc. 41, Kunz Dep. at PageID 822; Doc. 39, Lehman
Dep. at PageID 777-78). Plaintiff alerted Kunz to the pedestrians, and Kunz directed
another officer to address them. (Doc. 41, Kunz Dep. at PageID 847-48). The pedestrians
left when directed, without incident or arrest. (Doc. 35-1 at PageID 549; Doc. 49 at PageID
1058).
Plaintiff reported chest pain to Kunz while detained in the police car. Kunz
requested 	medical 	assistance, 	and 	responding 	personnel 	assessed 	Plaintiff 	and
transported him to the hospital for further evaluation. (Doc. 35, Andrus Dep. at PageID
455-58; Doc. 41, Kunz Dep. at PageID 851-52). Before Plaintiff left for the hospital, Kunz
issued him a notice to appear on a charge of Obstructing Official Business, a second-
degree misdemeanor under Ohio Rev. Code § 2921.31. (Doc. 41, Kunz Dep. at PageID
852; Doc. 35-1 at PageID 549; Doc. 47-1 at PageID 1031). The criminal case was
ultimately dismissed on June 25, 2024. (Doc. 48 at PageID 1054; Doc. 50 at PageID
1092).
Plaintiff filed the instant action on October 11, 2024 against Sgt. Kunz and the City
of Cincinnati. He asserts seven claims: false arrest (Count I), Fourth Amendment
unreasonable seizure (Count II), First Amendment retaliation (Count III), malicious
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prosecution (Counts IV & V), abuse of process (Count VI), and a claim seeking injunctive
relief (Count VII). (Doc. 1).
Defendants have filed a motion for summary judgment, which Plaintiff opposes.
(Docs. 47, 49).
III. 	Counts I, II, IV, and V: Probable Cause
Counts I, II, IV, and V each require Plaintiff to establish an absence of probable
cause for the challenged arrest or prosecution. Count I alleges false arrest under Ohio
law; Count II alleges an unreasonable seizure under the Fourth Amendment; and Counts
IV and V allege malicious prosecution under Ohio law and the Fourth Amendment,
respectively. (Doc. 1). Although these claims include different elements, the absence of
probable cause is common to each. 3
Probable cause exists when the facts and circumstances within an officer’s
knowledge, based on reasonably trustworthy information, are sufficient to warrant a
prudent person in believing that the suspect has violated or is violating the law. Criss v.
City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (citing Michigan v. DeFillippo, 443 U.S.
31, 36 (1979)). See also Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975) (“a policeman’s
on-the-scene assessment of probable cause provides legal justification for arresting a
person suspected of a crime”); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 315
(6th Cir. 2005) (an officer has probable cause when he discovers reasonably reliable
3 Under Ohio law, a claim of false arrest is defeated by a showing of probable cause. Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 315 (6th Cir. 2005) (“an arrest based on probable cause is a lawful detention
and, thereby, serves to defeat a false arrest/imprisonment claim”). The same is true for Fourth Amendment
claims asserting unreasonable seizure. Howse v. Hodous, 953 F.3d 402, 406 (6th Cir. 2020) (“Under the
Fourth Amendment, an officer can seize someone so long as he has probable cause that the person has
violated the law.”). State-law and federal claims for malicious prosecution also both require a showing of
the absence of probable cause. See Trussell v. General Motors Corp., 559 N.E.2d 732, 734 (Ohio 1990);
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010).
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information that a suspect has committed a crime). The standard requires only a
“probability or substantial chance of criminal activity, not an actual showing of such
activity.” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting Illinois v. Gates,
462 U.S. 213 (1983)). The probable-cause inquiry is objective. For the arrest-based
claims, the Court considers the facts and circumstances known to the officer at the time
of the arrest, rather than information acquired afterward or the officer’s subjective intent.
Jones v. Naert, 121 F.4th 558, 565 (6th Cir. 2024). See also McCurdy v. Montgomery
Cnty., 240 F.3d 512, 517 (6th Cir. 2001) (“[T]he objective reasonableness of the facts
relevant to a probable cause determination is paramount, and the officer’s subjective
intentions are irrelevant.”) (citing Whren v. United States, 517 U.S. 806, 813 (1996)). The
Court may resolve probable cause as a matter of law when only one reasonable
determination is possible. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000).
In this case, Kunz arrested and charged Plaintiff under Ohio Rev. Code §
2921.31(A). To establish the offense of obstructing official business, the State would have
to prove that Plaintiff “(1) performed an act; (2) without privilege; (3) with purpose to
prevent, obstruct, or delay the performance of a public official of any authorized act within
the public official’s official capacity; and (4) that hampered or impeded the performance
of the public official’s duties.” In re S.J., 225 N.E.3d 368, 373 (Ohio App. 1 Dist. Sept. 27,
2023). An “affirmative act” includes “any conduct, physical or verbal, that hampers or
impedes the officer in the performance of his or her duties”; a mere failure to act or failure
to obey an officer’s order does not suffice. State v. Terry, No. C-240381, 2025 WL
1009295, at *2 (Ohio App. 1 Dist. Apr. 4, 2025); State v. Carroll, 834 N.E.2d 843, 846
(Ohio App. 1 Dist. Aug. 5, 2005). The statute does not criminalize every “minor delay,
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annoyance, irritation, or inconvenience” to police. State v. Harris, 121 N.E.3d 21, 28 (Ohio
App. 4 Dist. Oct. 17, 2018). Rather, the conduct must create a “substantial stoppage” of
the officer’s progress. In re S.J. at 375 (“This stoppage is not defined by a particular period
of time, but it must occur because of the defendant’s act.”).
As an initial matter, the record in this case supplies an objective, corroborated
basis for expanding the perimeter to include the area where Plaintiff was standing.
Officers were investigating a fatal car crash and tire-mark evidence extended beyond the
original taped perimeter into the area near where Plaintiff stood. Kunz testified that he
observed those marks before approaching Plaintiff and determined that the scene needed
to be expanded to encompass them. (Doc. 41, Kunz Dep. at PageID 824-25, 830-31).
Sgt. Lehman, who was present at the scene, also testified that she personally observed
additional marks, but that Kunz was already working to expand the scene. (Doc. 39,
Lehman Dep. at PageID 766-67). And Flamm’s examination of the crash evidence and
review of the footage further confirm that Plaintiff’s location was within the evidence area,
although outside the original tape. (See supra n.1). This evidence establishes a legitimate
evidence-preservation basis for expanding the perimeter to encompass the area where
Plaintiff stood and directing him to move away from that area.
However, the existence of a legitimate basis for directing Plaintiff to move does
not, standing alone, establish probable cause to arrest him for obstruction. The remaining
question is whether Plaintiff’s response supplied probable cause to believe that he
affirmatively and purposefully impeded that authorized task.
Plaintiff principally relies on In re S.J., 225 N.E.3d 368, 373 (Ohio App. 1 Dist. Sept.
27, 2023), arguing that like the juvenile in that case, he committed no affirmative act,
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intended only to record police activity, was privileged to do so, and did not substantially
impede any official duty. (Doc. 49 at PageID 1060-64). In that case, a 16-year-old girl was
recording the police arrest another person on a public sidewalk. She immediately
complied with an initial instruction to back up, but later refused to leave the street, shaking
her head and telling the officer to stop talking to her. In re S.J. at ¶¶ 9-10, 25. The court
found that her failure to obey and inaction regarding the subsequent directions did not
constitute an affirmative act of obstruction. Id. at ¶¶ 24-25. The court further determined
that her purpose was to record and that evidence did not establish interference with the
officer’s ability to assist with an arrest or perform another official duty. Id. at ¶ 28, 29-42.
With respect to the affirmative-act requirement in this case, Plaintiff did not simply
remain in place and continue recording. Kunz testified that, during his effort to escort
Plaintiff from the area, Plaintiff pulled away and continued trying to walk back towards the
initial crime scene tape. (Doc. 41, Kunz Dep. at PageID 836, 843). The contemporaneous
criminal complaint also describes Plaintiff pulling away and declaring that he would not
move from that spot while Kunz attempted to guide him away to expand the crime scene.
(Doc. 47-1 at PageID 1031). The video footage depicts Plaintiff withdrawing his arm,
turning, and moving back toward the initial crime scene perimeter as Kunz attempted to
guide Plaintiff from the area. (Doc. 10, Kunz BWC at 0:36-55). Whether Plaintiff turned to
return toward the initial perimeter or toward the other officers, his arm withdrawal and turn
counteracted Kunz’s efforts to relocate him. Those physical movements distinguish this
case from the mere refusal and verbal disagreement found insufficient in In re S.J.. See
State v. Carrion, No. C-230070, 2023 WL 8447480, at *3 (Ohio App. 1 Dist. Dec. 6, 2023)
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(finding that placing a hand against a wall, tucking wrists, and tensing muscles to avoid
handcuffing constituted affirmative acts beyond a failure to act).
The 	circumstances 	also 	permitted 	a 	reasonable 	inference 	of 	purposeful
interference. Kunz repeatedly directed Plaintiff away from the area, pointed down Spring
Grove Avenue, and stated during the encounter that he was “moving the crime scene
back here.” (Doc. 35-9, Andrus BWC at 2:15-55; Doc. 10, Kunz BWC at 0:10-48).
Sergeant Lehman also recalled hearing Kunz explain that officers were making the scene
larger and Plaintiff needed to step back. (Doc. 39, Lehman Dep. at PageID 768-69).
Although Kunz did not identify an ultimate destination or the precise extent of the
contemplated perimeter, the footage depicts repeated directional instructions to move
away. Plaintiff acknowledged, after reviewing the footage, that Kunz was pointing away
from the scene, although he testified that he had not noticed the gestures at the time.
(Doc. 35, Andrus Dep. at PageID 449).
In response, Plaintiff demanded that Kunz stop speaking, stated that he did not
care what Kunz had to say, insisted that Kunz read his legal materials, rejected the
directions to move, continuously interrupted Kunz, and invited arrest. Plaintiff described
himself as “challenging” Kunz and attempting to “educate” him about Plaintiff’s asserted
entitlement to remain where he was. (Doc. 35, Andrus Dep. at PageID 447, 449-50).
Considered with the communicated perimeter expansion and Plaintiff’s pulling away and
turning against the attempted relocation, those statements supported a reasonable belief
that he was deliberately opposing Kunz’s efforts to clear the evidence area. 4
4 Plaintiff’s asserted privilege to record does not resolve whether he was privileged to engage in the conduct
supplying probable cause. In In re S.J., the juvenile was privileged to record the arrest, and the evidence
failed to establish the requisite obstructive conduct. In re S.J. at ¶¶ 24-25, 32-33, 39-42. Here, the Court’s
determination does not rest on Plaintiff’s recording or his initial presence outside the taped perimeter.
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The record also identifies the official task impeded and the resulting interruption.
Plaintiff’s actions interrupted Kunz’s efforts to guide Plaintiff from the area and expand
the crime scene. The video footage, consistent with the account in the contemporaneous
complaint, depicts several attempts to move Plaintiff before Kunz advised him that he was
under arrest. (Doc. 35-9, Andrus BWC at 2:15-55; Doc. 47-1 at PageID 1031). The
interference thus arose during the effort to clear the evidence area, not merely from the
time spent discussing Plaintiff’s objections or subsequently processing his arrest. Unlike
in In re S.J., the record connects affirmative conduct to an impediment to a particular
authorized task. And although the encounter was brief, a substantial stoppage is not
defined by a fixed period of time. In re S.J. at ¶35. Plaintiff’s response supplied probable
cause to believe that he was hampering the effort to clear and secure the area.
Plaintiff 	disputes 	whether 	Kunz 	actually 	observed 	the 	tire 	marks 	before
approaching him, emphasizing that Kunz never mentioned them and that Plaintiff saw
him speaking with other officers rather than following the marks. (Doc. 49 at PageID 1064-
67; Doc. 35, Andrus Dep. at PageID 452). This challenge concerns Kunz’s knowledge at
the time of their interaction, not merely his subjective motive. But neither observation
contradicts Kunz’s testimony that the marks were visible behind Plaintiff when he first
directed him to move, and their existence and location are corroborated by the crash
investigation and footage. (Doc. 41, Kunz Dep. at PageID 830-31; see supra n.1). Kunz
Rather, it rests on his response to Kunz’s effort to clear an area containing evidence.
Smith v. City of Wyoming, 821 F.3d 697, 716 (6th Cir. 2016), also does not require a different result. In that
case, the Sixth Circuit determined that, viewing the evidence in the plaintiff’s favor, her hand withdrawal
could have been an involuntary reaction to an unexpected touch, and she otherwise complied with the
officer’s directions. Here, the inference of purpose rests not on Plaintiff’s arm withdrawal alone, but on his
physical response considered together with his contemporaneous statements and continued opposition to
relocating.
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announced the perimeter expansion during the encounter, documented the effort in the
criminal complaint, and— immediately after Plaintiff was escorted to the police car—
officers moved the tape to encompass the additional evidence. (Doc. 45, Flamm Dep. at
PageID 979-80, 983-84; Doc. 41, Kunz Dep. at PageID 834. See also Doc. 10, Kunz MVR
at 34:05-38:21). The subsequent expansion does not retroactively supply probable cause,
but corroborates that the task announced during the encounter was actually undertaken.
The Court need not determine that evidence preservation was Kunz’s sole subjective
concern to conclude that the facts known to him supplied probable cause to believe
Plaintiff was impeding the authorized expansion.
In sum, viewing the evidence and reasonable inferences in Plaintiff’s favor, the
record establishes probable cause to arrest Plaintiff for obstructing official business and
to initiate that charge. Plaintiff therefore cannot establish the absence of probable cause
necessary for Counts I, II, IV, and V. 	Defendants are entitled to summary judgment on
those claims.
IV. 	Count III: First Amendment Retaliation
Plaintiff also alleges that Kunz arrested him in retaliation for recording police
activity 	and 	that 	the 	City’s 	policies 	or 	customs 	caused 	the 	alleged 	constitutional
deprivation. (Doc. 1, Complaint at PageID 7-8).
A First Amendment retaliation claim requires a plaintiff to establish that he engaged
in protected conduct, suffered an adverse action that would deter a person of ordinary
firmness from continuing that conduct, and that the adverse action was motivated at least
in part by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
In Nieves v. Bartlett, 587 U.S. 391 (2019), the Supreme Court held that a plaintiff asserting
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a retaliatory-arrest claim generally must plead and prove the absence of probable cause.
Id. at 402, 405-07. A narrow exception to this rule permits a claim to proceed when the
plaintiff presents objective evidence that he was arrested when otherwise similarly
situated individuals not engaged in the same sort of protected speech were not. Id. at
407. Under this exception, a plaintiff need not identify virtually identical, identifiable
comparators; other objective evidence of non-enforcement may suffice. Gonzalez v.
Trevino, 602 U.S. 653, 658-59 (2024). See also Grady v. Cratsenburg, 170 F.4th 995,
1001 (6th Cir. 2026).
As explained above, probable cause supported Plaintiff’s arrest for obstructing
official business. Plaintiff nevertheless contends that he was treated differently from
individuals who were not recording police officers. Specifically, he points to pedestrians
who entered the taped area and a Duke Energy employee whose vehicle was permitted
to enter without an arrest. (Doc. 35, Andrus Dep. at PageID 460-63; Doc. 49 at PageID
1071-72). However, those individuals were not similarly situated to Plaintiff with respect
to the conduct supplying probable cause for his arrest. See Grady, 170 F.4th at 1004-05
(explaining that proposed comparators must have engaged in conduct similar to that
supplying probable cause for plaintiff’s arrest).
Plaintiff acknowledged that he did not observe what happened to the pedestrians
after Kunz exited the cruiser and did not know whether they were directed to leave. (Doc.
35, Andrus Dep. at PageID 462-63, 475-76). Kunz testified that he alerted another officer
to the pedestrians, and the subsequent investigative report states that they immediately
complied with directions to leave. (Doc. 41, Kunz Dep. at PageID 847-48; Doc. 35-1 at
PageID 549). The utility employee likewise was not similarly situated. Duke Energy
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personnel entered to address live electrical wires. (Doc. 37, Neville Dep. at PageID 701;
Doc. 39, Lehman Dep. at PageID 777-78). Although Plaintiff argues the truck’s entry could
have 	affected 	tire-mark 	evidence, 	that 	possibility 	does 	not 	establish 	comparable
obstructive conduct. (Doc. 49 at PageID 1071). Plaintiff identifies no evidence that either
the pedestrians or the utility employee physically resisted an effort to relocate them or
otherwise impeded the expansion of the crime scene perimeter. Their entry without arrest
therefore does not establish differential treatment of similarly situated individuals.
Plaintiff also argues that officers’ awareness of police involvement in the crash
gave Kunz a reason to prevent him from recording the aftermath of potential misconduct.
(Doc. 49 at PageID 1069-70). An internal-investigation report concluded that an officer
engaged in an unauthorized pursuit leading to the crash. (Doc. 49-1 at PageID 1085-88).
This report identifies potential misconduct preceding the crash, but does not establish
that 	Kunz 	arrested 	Plaintiff 	to 	suppress 	documentation 	of 	its 	aftermath. 	Plaintiff
acknowledged that Kunz did not tell him he could not record, direct him to stop recording,
ask why he was recording, or request his media credentials. (Doc. 35, Andrus Dep. at
PageID 448-49). In any event, even if the circumstances surrounding the crash supported
an inference of retaliatory motive, that inference alone would not overcome the probable-
cause bar applicable to Plaintiff’s claim. Nieves, 587 U.S. at 407 (explaining that the
arresting officer’s statements and motivations are irrelevant to the objective inquiry
governing the exception).
Because Plaintiff’s arrest was supported by probable cause and he has not
presented objective evidence sufficient to invoke the limited exception set forth in Nieves,
Kunz is entitled to summary judgment on Count III. Plaintiff’s related municipal-liability
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claim also fails because he has not established an underlying constitutional violation
arising from the arrest.5 	His asserted failures to train, supervise, or discipline cannot
support liability for his arrest under Monell v. Dept. of Soc. Services, 436 U.S. 658 (1978).
See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that municipal liability
could not rest on an officer’s conduct where the plaintiff suffered no constitutional injury).
V. 	Count VI: Abuse of Process
Plaintiff alternatively alleges that Kunz used the criminal proceeding to deter him
from recording police activity. (Doc. 1, Complaint at PageID 10-11). Under Ohio law,
abuse of process requires a proceeding initiated in proper form and with probable cause,
a perversion of that proceeding to accomplish an ulterior purpose for which it was not
designed, and resulting direct damage. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.,
626 N.E.2d 115, 118 (1994). An improper motive alone is insufficient: there is no liability
when a defendant merely carries the process to its authorized conclusion, even with bad
intentions. Id. at n.2. In other words, the plaintiff must identify both an ulterior purpose
and an act committed during that process that was improper in the normal conduct of the
proceeding. Atsas v. Bowen, No. 25-3551, 2026 WL 1694870, at *8 (6th Cir. June 11,
2026).
Plaintiff argues that his arrest and prosecution were intended to prevent or to deter
his recording, again relying on the different treatment of the pedestrians and utility
employee. (Doc. 49 at PageID 1071-72). That argument identifies an alleged ulterior
purpose, but not an improper use of the criminal proceeding to accomplish it. Even
5 Plaintiff has not identified objective evidence that his arrest implemented a premeditated official municipal
policy of retaliation for protected speech. The narrow exception recognized in Lozman v. City of Riviera
Beach, 585 U.S. 87, 99-101 (2018), therefore does not apply.
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assuming that purpose, Plaintiff identifies no act by Kunz that perverted the criminal
process. Kunz is entitled to summary judgment on Count VI.
VI. 	Count VII: Injunctive Relief
Finally, in Count VII, Plaintiff seeks an injunction prohibiting Defendants from
unlawfully restricting access to observe or record newsworthy events and from wrongfully
arresting or charging persons lawfully exercising their rights. (Doc. 1 at PageID 11-12).
Although the parties do not separately address Count VII, the Court must independently
determine whether Plaintiff has standing to seek prospective relief. Such standing
requires a real and immediate threat of future injury. Past exposure to allegedly unlawful
conduct alone does not suffice. City of Los Angeles v. Lyons, 461 U.S. 95, 102-106
(1983). See also Grendell v. Ohio Supreme Court, 252 F.3d 828, 832-34 (6th Cir. 2001)
(“[W]here the threat of repeated injury is speculative or tenuous, there is no standing to
seek injunctive relief.”).
Plaintiff continues to document police activity, although he attests that his news
gathering has diminished out of concern about another arrest. (Doc. 35, Andrus Dep. at
PageID 457-58, 478-81). Plaintiff also described earlier encounters in which he claims
officers have restricted his access. (Id. at PageID 413-23). Plaintiff’s prior encounters and
continued work do not establish a real and immediate threat that Defendants will
unlawfully arrest him or unconstitutionally restrict his recording in the future. His concern
about recurrence does not substitute for a concrete threat of future injury. See Lyons, 461
U.S. at 105-06, 111; Fieger v. Michigan Supreme Court, 553 F.3d 955, 966-67 (6th Cir.
2009). Plaintiff therefore lacks standing to seek the requested prospective relief, and
Count VII is dismissed without prejudice for lack of subject-matter jurisdiction.
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VII. 	Conclusion
For the reasons stated, Defendants’ Motion for Summary Judgment is GRANTED
as to Counts I through VI. Count VII is DISMISSED without prejudice for lack of subject-
matter jurisdiction.
IT IS SO ORDERED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Chief Magistrate Judge
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