Lead Opinion
OPINION
Plaintiffs-Appellants, brothers Derek and Brian Patterson, brought this civil rights action alleging that five City of Akron police officers, their superiors, and the City of Akron violated their constitutional rights through the use of excessive force. On the night of May 27-28, 2006, during Memorial Day weekend, the brothers were patrons at a bar in downtown Akron, Ohio. Officers arrested Brian Patterson after twice telling him to stop sitting or leaning on a police cruiser. A large crowd gathered and chaos ensued. Under circumstances that remain disputed, Derek Patterson attempted to intercede during his brother’s arrest. It is undisputed that Brian Patterson was tased by an officer at least once and Derek Patterson was tased by officers at least four times. The district court granted summary judgment to the Defendants-Appellees on all of Brian Patterson’s claims, finding that he had waived any potential civil claims against the officers and the City in a valid Release-Dismissal Agreement entered at the time of Brian’s plea to a misdemeanor charge of resisting arrest. After the district court granted summary judgment to most of the Defendants-Appellees on most of Derek Patterson’s claims, a jury returned a verdict in favor of the two remaining defendant officers.
Brian Patterson appeals the district court’s enforcement of the Release-Dismissal Agreement. Derek Patterson appeals the district court’s ruling that an officer’s Taser Report was inadmissible at trial. We find (1) Brian’s Release-Dismissal Agreement is unenforceable, and therefore reverse the district court’s grant of summary judgment to the officers, and (2) the district court erred in excluding the officer’s Taser Report at Derek’s trial, and that error was not harmless. We therefore REMAND the matter for new trial as to both plaintiffs.
I.
A.
Derek (“Derek”) and Brian (“Brian”) Patterson are natives of a suburb of Ak
The events in question took place in the early morning hours of May 27-28, 2006, over Memorial Day weekend. Derek and Brian had returned to Akron to spend the holiday with their family. Sometime between 11:00 and 11:30 pm, Derek and Brian arrived separately with Mends at Fat Tuesday Bar in downtown Akron, near the University of Akron. (R. 51-8, Brian Dep., PagelD # 51-8; R. 138, Trial Tr, Vol. 1-A, PagelD # 1735-36.) Fat Tues- ' day neighbors Posh Night Club, and patrons of both venues often gather on the sidewalk to mingle, particularly when there is nice weather, as there was that holiday weekend. (R. 51-8, Brian Dep., PagelD # 581, 583; R. 138, Trial Tr. Vol. 1-A, PagelD # 1740; R. 51-13, Monaghan Dep., PagelD # 624; R. 140, Trial Tr. Vol. 3, PagelD # 1930.) Derek left Fat Tuesday around 2:15 am, leaving Brian inside. (R. 138, Trial Tr. Vol. 1-A, PagelD # 1738-40.) Derek went outside and leaned against a police cruiser parked at the curb, facing the bars and watching patrons exit. (Id. PagelD # 1740, 1742.) Derek was leaning against the cruiser for about five minutes; when Fat Tuesday closed, Brian exited and joined Derek in leaning against the cruiser. (Id. Page # 1741; see also R. 51-8, Brian Dep., Pa-gelD # 582-83.) After a couple minutes, Derek left to go speak to someone he had met in the bar earlier, leaving Brian leaning against the cruiser and talking to his friend Kara Monaghan (“Monaghan”). (R. 138, Trial Tr. Vol. 1-A, PagelD # 1741-42; R. 51-8, Brian Dep., PagelD # 582.)
Akron Police Sergeant Timothy Givens and Officer Michael Rinn were working the Downtown Bar District patrol assignment that evening. (R. 140, Trial Tr. Vol. 3, PagelD # 1921-25.) Officer Daniel Bickett was working off-duty security at Posh Night Club. (Id. PagelD #2157.) All three officers were standing together on the sidewalk as Fat Tuesday and Posh closed. (Id. PagelD #1928-29, 2162.) Several hundred people were outside the bars. (Id. PagelD # 1930.) Sergeant Givens and Officer Bickett testified that they observed Brian sitting on the trunk of Sergeant Givens’ cruiser with his feet dangling, and that Sergeant Givens walked over to tell Brian to get off his vehicle. (Id. PagelD # 1928-30; R. 51-12, Bickett Dep., PagelD # 618.) The parties agree Brian stood up without saying anything. (R. 51-8, Brian Dep., PagelD # 583; R. •51-10, Givens Dep., PagelD # 605; R. 140, Trial Tr. Vol. 3, PagelD # 1930.)
Sergeant Givens testified that as he walked away, he turned and saw Brian leaning on the cruiser. (R. 140, Trial Tr. Vol. 3, PagelD # 1931-32.) Sergeant Givens testified that he again told Brian to get off his vehicle and began ordering the crowd to leave the area. (Id.) According to Sergeant Givens, Brian took a puff of his cigarette and told Sergeant Givens that he was not leaving. (Id. PagelD # 1932.) Sergeant Givens testified he told Brian he could either leave or go to jail, to which Brian allegedly replied, “I’m not leaving and I’m not going to jail.” (Id. PagelD # 1934.) Officer Bickett also testified that Brian said this. (R. 51-12, Bickett Dep., PagelD # 619.) Sergeant Givens, believing Brian to be intoxicated and observing him take a defensive posture, decided to arrest Brian. (R. 140, Trial Tr. Vol. 3,
Brian testified that, about thirty seconds after Sergeant Givens first approached him, Sergeant Givens returned and asked him “why’d you do that,” to which Brian did not respond because he did not know what Sergeant Givens was referring to. (R. 51-8, Brian Dep., Pa-gelD #583-84.) Sergeant Givens then told the other officers behind him to arrest Brian. (Id. PagelD #584.) Mona-ghan testified .that, after Brian stood up after first being approached by Sergeant Givens, she and Brian talked for “a couple more minutes” before Brian inadvertently leaned against the cruiser again. (R. 51-13, Monaghan Dep., PagelD # 625.) Monaghan testified that that’s when the police “grabbed [Brian] up” and put his, hands behind his back. (Id.)
Monaghan ran over to Derek and told him Brian was being arrested. (Id.; see also R. 138, Trial Tr. Vol. 1-A, PagelD # 1742-43.) Derek walked over and saw Brian standing between Officers Rinn and Bickett with his hands handcuffed behind him. (R. 138, Trial Tr. Vol. 1-A, PagelD # 1743.) Derek approached Officer Rinn, told him Brian was his brother, and asked what was happening. (R. 51-7, Derek Dep., PagelD # 566; R. 138, Trial Tr. Vol. 1-A, PagelD # 1743.) Officer Rinn told Derek that Brian was being arrested and needed to get into the police cruiser. (R. 51-7, Derek Dep., PagelD # 566; R. 138, Trial Tr. Vol. 1-A, PagelD # 1743.) Derek asked Officer Rinn for permission to talk to Brian so that he could “ease the situation,” which Officer Rinn granted. (R. 51-7, Derek Dep., PagelD #566-67; R. 138, Trial Tr. Vol. 1-A, PagelD # 1744; R. 51-8, Brian Dep., PagelD # 585.)
According to Derek, he said to Brian, “Look, this man is being reasonable. Get in this police cruiser. Let me talk to him. We might all be able to go home tonight.” (R. 138, Trial Tr. Vol. 1-A, PagelD # 1744-45.) Brian responded by saying he did not know why the officers handcuffed him. (Id. PagelD # 1745.) When Brian said this, Sergeant Givens allegedly yanked Brian by his left arm from the sidewalk into the street and tried to body slam him. (Id.) Officer Bickett assisted Sergeant Givens in moving Brian. (R. 51-7, Derek Dep., PagelD # 567-68.) When Derek followed Sergeant Givens and Brian into the street, Officer Rinn grabbed Derek by his right arm; when Derek pulled his arm away, Officer Rinn told him not to get involved. (R. 138, Trial Tr. Vol. 1-A, PagelD # 1753.)
According to Sergeant Givens and Officer Bickett, Brian resisted their efforts to place him in Sergeant Givens’ police cruiser. (R. 140, Trial Tr. Vol. 3, PagelD # 1938-93; R. 141, Trial Tr. Vol. 4, Pa-gelD # 2174-76.) Officer Bickett testified he encouraged Brian to “sit down in the cruiser” so that they could “work this out.” (R. 141, Trial Tr. Vol. 4, PagelD # 2176.) Officer Bickett further testified that, during this time, Officer Rinn was trying to hold back the crowd that was forming around the officers and moving in closer. (Id.) Because of the encroaching crowd, Sergeant Givens and Officer Bickett decided to move Brian from the passenger side of the cruiser to the driver’s side. (R. 140, Trial Tr. Vol. 3, PagelD # 1939; R. 141, Trial Tr. Vol. 4, PagelD # 2176-78.) Now on the- driver’s side, Brian again resisted, refusing to bend down to get into the cruiser and kicking his legs out. (R. 140, Trial Tr. Vol. 3, PagelD # 1939; R. 141, Trial Tr. Vol. 4, PagelD #2178.) Derek perceived Brian’s actions as him trying to “stabilize himself so as not to be slammed
According to Sergeant Givens and Officer Bickett, a crowd of about 10 to 12 people had followed the officers to the driver’s side of the cruiser, and was now pulling at the officers and at Brian. (R. 140, Trial Tr. Vol. 3, PagelD # 1939; R. 141, Trial Tr. Vol. 4, PagelD #2178-80.) According to Monaghan, the crowd was predominately white, and people in the crowd were shouting that the officers were racist. (R. 51-13, Monaghan Dep., Pa-gelD # 627-28.)
The crowd separated Sergeant Givens from Officer Bickett and Brian, and both officers independently radioed for assistance. (R. 140, Trial Tr. Vol. 3, PagelD # 1940-41; R. 141, Trial Tr. Vol. 4, Pa-gelD # 2181-82.) Officer Karl Burton responded to the call almost immediately.
Sergeant Givens and Officer Bickett provide conflicting accounts regarding what happened next. Sergeant Givens testified that, when Officer Burton grabbed ahold of Brian, Gary jumped on Officer Burton’s back. (R. 140, Trial Tr. Vol. 3, PagelD # 1951.) Sergeant Givens states he tased Gary, handcuffed him, and put him into a patrol wagon. (Id. PagelD # 1951-55.) Brian’s testimony somewhat corroborates this version of events; specifically, Brian testified that he saw Gary on the ground after being tased, with an officer standing in front of him. (R. 51-8, Brian Dep., PagelD # 586.)
Officer Bickett, however, testified that Derek was “hanging on [Officer] Burton’s back trying to pull [Officer Burton] off Brian.” (R. 141, Trial Tr. Vol. 4, PagelD # 2183-84, 2269.) Officer Bickett then let go of Brian and unsuccessfully attempted to handcuff “Derek,”
Meanwhile, Brian was tased in the chest by Officer Evans. (R. 51-8, Brian Dep., PagelD # 586; R. 51-15, Brian Deck, Pa-gelD # 640(¶ 4).) In Brian’s account, there are no interceding events between when he noticed Gary on the ground after Gary was tased, and when Brian himself was tased — allegedly without provocation. According to Officer Evans, however, a handcuffed Brian broke away from Officer Burton, ran toward Derek and Officers Evans and Bickett, and struck Officer Bickett in the head with his knee, causing Officer Bickett to fall over. (R. 51-14, Evans Dep., PagelD # 635-36; R. 140, Trial Tr. Vol. 3, PagelD #2081-83.) At that point, Officer Evans stood up and deployed his taser in “dart mode”
Brian fell face first to the ground. (R. 51-14, Evans Dep., PagelD # 636-37; R. 140, Trial Tr. Vol. 3, PagelD # 2084.) Brian testified that after he fell to the ground — still handcuffed from earlier in the evening — Officer Evans continued to “drive stun”
In Derek’s account, he did not enter the melee until after Officer Rinn refused to intercede and after he observed Brian being tased by Officer Evans. (Appellant’s Br. at 12; R. 51-7, Derek Dep., PagelD # 568; R. 138, Trial Tr. Vol. 1-A, PagelD # 1753-54.) Derek testified that, as he attempted to run toward Brian, he was tackled by an officer — presumably Officer Didyk — and fell to his hands and knees.
However Derek became involved, the result is that Derek ended up on the ground and either could not or would not lie flat on his stomach. Derek testified that he could not produce his hands and arms because the officers were on his back and doing so would have caused him to fall face-first into the concrete. (R. 51-7, Derek Dep., PagelD # 571.) The two officers testified that Derek would not submit. Officer Bickett. testified that he administered a single-cycle drive stun with his taser to the back of Derek’s left thigh, and Officer Didyk testified that he administered a single-cycle drive stun with his taser to Derek’s left lower back. (R. Í41, Trial Tr. Vol. 4, PagelD #2187, 2825.) Officer Didyk testified that Derek then laid flat on his stomach, but refused the Officers’ commands and efforts to produce his hands from under his torso to be handcuffed. (Id. PagelD # 2326.) Officer Bickett testified he deployed a second, single-cycle drive stun to Derek’s right shoulder blade, and Officer Didyk testified that he deployed a second, single-cycle drive stun to Derek’s left thigh. (Id. Page ID #2191, 2327). At that point, the two officers were able to gain control of Derek’s arms and handcuff him. Derek testified, however, that as he lay on the ground Officer Bick-ett continued to drive stun his neck (twice), shoulder (twice), and the back of his head (once), for a total of five stuns after he was handcuffed and on the ground. (R. 138, Trial Tr. Vol. 1-A, Page ID # 1760; R. 51-7, Derek Dep., PagelD # 571-572; RE 51-18, Derek Decl. Page ID # 660-662(¶ 5).).
B.
On May 30, 2006, Derek was indicted on charges of disorderly conduct, obstructing official business, and resisting arrest — all misdemeanors. He pled no contest to disorderly conduct, Ohio Rev.Code § 2921.33, in September 2006, in exchange for the other charges being dropped. (R. 39-14, Plea Proceedings Tr., PagelD #402-03.)
Brian was indicted for the felony of assault on a police officer, Ohio Rev.Code § 2903.13, and the misdemeanor of resisting arrest, Ohio Rev.Code § 2921.33. On January 16, 2007, Brian appeared for a plea hearing, where stand-in counsel represented him. Brian asserts that, approximately 15 minutes before the hearing, stand-in counsel told him that an offer of a no-contest plea to the misdemeanor had been made, but was conditioned on release of all civil claims related to the officers’ actions. (Appellant’s Br. at 14.) Brian avers that twice he was told not to worry about accepting the offer, because it was his first offense and he could expunge the offense and, with it, the agreement. (R. 51-8, Brian Dep. Page ID # 589-90.) Brian agreed, pleaded no contest to the misdemeanor and, in exchange for the dropping of the felony charge, entered into a Release-Dismissal Agreement. On the record at the plea proceeding, Brian stated that he agreed “not to institute any lawsuit against any of the police officers involved or the City of Akron in this case.” (R. 39-13, Plea Proceedings Tr., PagelD #387.)
On May 28, 2008, Derek and Brian filed the instant civil rights lawsuit, alleging: (1) the defendant officers (Givens, Rinn, Bickett, Evans, and Didyk)
The district court bifurcated summary judgment proceedings in order to first resolve the question of qualified immunity. Patterson v. City of Akron, No. 5:08CV1300,
The Defendants-Appellees then filed a second motion for summary judgment on Derek’s § 1983 municipal liability claim, the § 1985 claim, and the Ohio state law tort claims. (R. 89, Defs.’ Mot. Summ. J., PagelD # 1032-1055.) The district court granted the motion. Patterson v. City of Akron, No. 5:08CV1300,
II.
We first address Brian’s claim that the district court erred in finding the Release-Dismissal Agreement enforceable, and therefore in granting summary judgment in favor of the defendants.
Our review of a district court’s grant of summary judgment is de novo. See Medical Mut. of Ohio v. k. Amalia Enters. Inc.,
In Town of Newton v. Rumery, the Supreme Court held that release-dismissal agreements, by which an accused agrees not to bring a § 1983 action in exchange for the dismissal of criminal charges, are not per se invalid.
[Bjefore a court properly may conclude that a particular release-dismissal agreement is enforceable, it must specifically determine that (1) the agreement was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement will not adversely affect relevant public interests. The burden of proving each of these points falls upon the party in the § 1983 action who seeks to invoke the agreement as a defense.
1. Voluntariness
Under the first prong of the Rumery analysis, in order for a releasé-dismissal agreement to be enforceable, the defendant officers must show that the agreement was the result of “an informed and voluntary decision.” Rumery,
The district court found that each of these six factors weighed in favor of finding Brian entered the Release-Dismissal Agreement voluntarily. Patterson,
We begin with the second Rumery factor, whether the defendant was in custody when he made the agreement, because it is the simplest to address on the facts of this case. Brian was not in custody at the time he entered into the agreement. Accordingly, this factor weighs in favor of finding the agreement was voluntarily entered, as the district court found. Patterson,
As to the first factor, there is a genuine factual question as to whether Brian .was a sophisticated criminal defendant. He was 22-years-old at the time of these events, and had never before been arrested or charged with a criminal offense. (R. 51-8. Brian Dep., PagelD # 578; R. 51-24, Journal Entry, PagelD # 682.) Further, because he had attended only a couple of years of college and worked as a nonprofessional, he is quite unlike the plaintiff in Rumery, a “sophisticated businessman” who was found to have voluntarily entered the release-dismissal agreement at issue in his case. Rumery,
THE COURT: All right. Also as a condition of the plea bargain in this case that is in consideration of you being offered a plea to the misdemeanor and not the felony charge, it is the Court’s understanding that you have agreed in return for that consideration not to institute any lawsuit against any of the police officers involved or the City of Akron in this case; is that correct?
THE DEFENDANT: Yes.
THE COURT: Has anybody forced you, coerced you, or promised you anything in order to get you to make that decision?
THE DEFENDANT: No.
THE COURT: And that has been a decision made of your own volition and free will?
THE DEFENDANT: Yes.
(R, 39-13, Plea Proceedings Tr., PagelD # 394.) This was the only evidence of sophistication cited by the district court.
We do not underestimate the significant role that plea colloquies such as this generally play in our criminal justice system. These types of colloquies are often cited as proof .that a criminal defendant intelligently, knowingly, and voluntarily entered into a particular plea agreement. Nonetheless, we do not think that a defendant’s one-word answers during a plea colloquy, standing alone, are compelling evidence that he is sophisticated. Sophistication, in the context of the Rumery analysis, speaks to whether the defendant had or should have had sufficient knowledge of or familiarity with the criminal justice system such that we have faith that he knew or should have known what he was bargaining for when he entered a release-dismissal agreement. Given Brian’s relative youth, nonprofessional background, and lack of prior experience with the criminal justice sys
This is especially true when one considers Brian’s arguments regarding the third Rumery factor. There is a genuine factual issue in this case as to whether’s Brian’s lack of sophistication was exacerbated by his stand-in counsel’s lack of experience. Brian notes that, at the time of his plea hearing, his substitute counsel had graduated from law school less than a year before the hearing and had been licensed to practice for approximately eight weeks. (Appellant’s Br. at 21; see also R. 51-22, Ohio Supreme Court Curriculum Vitae of Matthew Rizzi, PagelD # 678.) Viewed in the light most favorable to him, it is reasonable to infer that the representation Brian received at the hearing did not offset his own lack of sophistication regarding the criminal process. Cf. Hill v. City of Cleveland,
This district court, however, found that Brian’s argument regarding his stand-in counsel “also has no merit,” for three reasons. Patterson,
The fourth Rumery factor asks whether the defendant had ample time to consider the agreement before signing it. This factor clearly cuts against Defendants-Appel-lees. Brian argued at summary judgment that, two days before his plea hearing, he •told his attorney that he would not sign anything releasing any claims against the City or the officers involved. (See R. 51-15, Brian Decl., PagelD # 640(¶ 5).) Brian states, however, that 15 to 30 minutes before the hearing, he was told by stand-in counsel that he would “probably have to agree to an oral waiver as part of [his] plea.” (Id.) Brian was allegedly also told that (1) the agreement would be oral rather than signed, and (2) it would only waive his right to bring an action against the defendants prior to expungement, which his counsel in fact filed on January 22, 2008. (R. 51-24, Journal Entry, PagelD #682.) This amount of time, if true, is plainly insufficient. See Rumery,
The district court did, not specifically consider the question of timing in its analysis. .The district court did, however, find that Brian “offers no support” for his claim that he was told the waiver was only temporary and would be expunged when his conviction was expunged. Patterson,
This declaration does not establish anything, especially in the face of his exchange with the state court judge during the plea proceeding. Further, Brian has presented no affidavits from his criminal defense attorneys indicating that they ever told him that expungement of his record would also expunge any oral waiver he made on the record in open court. His self-serving declaration alone is not enough to overcome the clear transcript of his plea proceeding and/or to create an issue of fact.
Id. at *4 n. 11. The district court’s analysis is erroneous for two reasons. First, it is not Brian’s burden at summary judgment, under the Rumery analysis, to prove the elements of voluntariness; it is clearly the Defendants-Appellees’ burden. Rumery,
On appeal, Defendants-Appellees argue, without support, that Brian “was informed by his counsel of the terms of the agree
The fifth Rumery factor, the nature of the criminal charges, also cuts against granting Defendants-Appellees summary judgment. Brian, a first time offender who had never even been arrested before, was told that the only options available to him were either to plead no contest to the misdemeanor of resisting arrest and waive all potential civil claims against the officers, or proceed to trial for both the misdemeanor charge and the felony charge of assaulting a police officer. While none of the parties has specified what penalty Brian was facing if he proceeded to trial on the felony charge, they have presented two starkly conflicting versions of the underlying facts of this case.
In Brian’s account, he was arrested after a minor infraction; “yanked” into the street by the police without provocation; officers attempted to “body slam” him to the ground; he was then tased in the chest, again without provocation; and officers continued to tase and brutalize him even though he was handcuffed and on the ground. In the officers’ collective account, Brian was arrested for a minor infraction and for acting belligerently toward Sergeant Givens; pulled to the driver’s side of Sergeant Givens’ because an approaching crowd was interfering with Brian’s arrest; and tased once in the chest after Brian broke away from Officer Evans and struck Officer Bickett in the head with his knee. On summary judgment, it is not for us to determine which of these accounts is more credible. Anderson,
Finally, the sixth Rumery factor considers whether the agreement was formed under judicial supervision. The district court repeatedly cited Brian’s answers to the trial judge’s questions during his plea colloquy as evidence of voluntariness. See e.g., Patterson, at *4. Defendants-Appel-lees, relying on Burke v. Johnson, emphasize that “[tjhis Court has upheld the validity and enforceability of release-dismissal agreements made in open court on the record.” (Appellee Br. at 9) (citing Burke,
In sum, we find that there are genuine issues of material fact surrounding at least five of the six Rumery factors. Accordingly, the district court erred in finding, as a matter of law, that Brian’s assent to the Release-Dismissal Agreement was voluntary, and therefore in granting summary judgment in favor of Defendants-Appel-lees.
2. Prosecutorial Misconduct or Overreaching
Under the second prong of the Rumery analysis, we consider whether “the prosecutor had an independent, legitimate reason to make this [release-dismissal] agreement directly related to his prosecutorial responsibilities.”
Rumery requires that, in order for a court to find lack of prosecutorial misconduct, the party invoking a release-dismissal agreement as a defense must present evidence of a legitimate criminal justice reason for conditioning the plea agreement on a release. For instance, the Rumery majority repeatedly emphasized that, in that case, the prosecutor’s purpose in fashioning the condition was to spare an alleged rape victim the trauma of testifying at either or both of Rumery’s civil and
In this case, the district court erred in its analysis of the prosecutorial misconduct prong. The district court found, without elaboration, that “Brian also fails to show (and does not even argue) that there was any prosecutorial misconduct involved in obtaining his waiver or that it would not be in the public interest to uphold the waiver.” Patterson,
The record is devoid of evidence of a prosecutorial justification for conditioning Brian’s plea agreement, but not Derek’s, on the release of civil claims. Defendants-Appellees have offered no evidence, such as an affidavit or testimony from the prosecutor in Brian’s case, as to why a release was desired. See Hill,
Brian, meanwhile, argues that the prosecutor made the decision to condition Brian’s plea agreement on the release of civil claims because the prosecutor recognized Brian had a meritorious civil action because, in his account of events, he had not assaulted Officer Bickett and had himself been tased and assaulted by officers while he was handcuffed. (Appellant’s Br. at 22-23; Appellee’s Reply at 11-12.); see
3. Public Interest
The public interest prong of the Rumery analysis is linked to the prosecutorial misconduct prong. A majority of the Rumery Court suggested that the public interest prong can be satisfied “if the prosecutor demonstrates that obtaining the release was motivated by an independent, legitimate criminal justice objective.” Coughlen,
We have no doubt that significant public interests can be furthered by such agreements. “In many eases a defendant’s choice to enter into a release-dismissal agreement will reflect a highly rational judgment that the certain benefits of escaping criminal prosecution exceed the speculative benefits of prevailing in a civil action.” Rumery,
Here, however, we have no record evidence from either the prosecutor or Brian’s defense attorney regarding the prosecutor’s reasons for desiring a release-dismissal agreement. Nonetheless, Defendants-Appellees argue that “[gjiven the substantial number of witnesses, and time and cost involved to secure a conviction, the public interest [was] better served [by] allocating criminal justice resources to other serious felony prosecutions.” (Appellee’s Br. at 12.) This argument is unsupported, speculative, and belied by the history of this case. If the prosecutor were truly concerned about conserving resources and warding off civil claims related to these events, then Derek’s plea agreement would also have been conditioned on the release of civil claims against the officers and against the City. As things currently stand, this case was filed almost seven years ago. It has been nearly six years since Brian was dismissed as a plaintiff. This is the second appeal. The parties involved are now nearly nine years removed from the events in question. Given the hours exhausted and expense incurred thus far, it is difficult to discern what possible benefit the Defendants-Appellees have gained from requiring a release-dismissal agreement from Brian, but not requiring a similar agreement from Derek. See Liv
Accordingly, the district court erred in placing the burden on Brian as to the public interest factor, and the lack of evidence on this point necessitates reversal.
III.
We next address the district court’s determination that Officer Bickett’s Taser Report was inadmissible at trial. We review a district court’s evidentiary rulings under the abuse of discretion standard. United States v. White,
The City of Akron provided Officer Bickett’s Taser Report to Derek in the course of discovery. (R. 59-9, Taser Report, PagelD # 880.) The document shows the date, time (GMT and local), and duration of each taser shot administered by the taser assigned to Officer Bickett. (Id. PagelD # 881-92.) The report covers a two-year period, from June 2004 to June 2006. The report was downloaded on June 12, 2008, from Taser International, the company that manufactures and distributes the tasers used by the Akron Police Department, by Akron Police Sergeant Michael Yohe, a Taser instructor. Sergeant Yohe provided the report to Defendant-Appellee Lieutenant Melissa Schnee, who later produced it in the course of discovery. Lieutenant Schnee used the Taser Report as part of her investigation into the officers’ use of force on May 27-28, 2006. At trial, the district court excluded the Taser Report for lack of foundation, Fed. R.Evid. 602, and failure to authenticate, Fed.R.Evid. 901.
Plaintiffs counsel extensively questioned Officer Bickett at trial regarding the Taser Report. (R. 141, Trial Tr. Vol. 4, PagelD # 2233-2261; 2275-2285.) Officer Bickett testified that he was aware of the existence of the Taser Report because his attorneys had shown it to him. (Id. PagelD # 2243, 2254.) Officer Bickett further testified that he does not know where “taser downloads” are stored; does not know what is done with the downloads; that he is personally unable to download the Taser Report; and that he lacks knowledge of when or why a taser download is performed. (Id. PagelD# 2241, 2244-45, 2250-52.) When Plaintiffs counsel asked Officer Bickett whether he was “aware from seeing the report that it shows five deployments of the taser” on May 27, 2006, defense counsel objected on the grounds of lack of foundation.
Following a lunch break, Plaintiffs counsel asked the district court to reconsider admitting the report under the public records exception. (Id. PagelD # 2287); see also Fed.R.Evid. 803(8)(a)(3) (“The following [is] not excluded by the rule against hearsay ... [a] record or statement of a public office if ... it sets out ... in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”) There again followed a lengthy discussion between counsel and the court. The court ultimately ruled:
THE COURT: I think the factual findings — and that’s what I was referring to earlier in the sidebar — factual findings from a legally authorized investigation would be the factual findings of, for instance, Lieutenant Schnee, which, as I alluded to earlier, those would be her findings.
These aren’t actual findings of an investigation.
(Id. PagelD #2287.)
THE COURT: No one has authenticated or has provided a foundation for the Court to understand or for anyone, the fact finder to understand more importantly, what this report means.
How it’s compiled. How accurate it is. Do you need to calibrate anything? I don’t know the answers to any of that because you haven’t provided any of that through any witness.
.... You’ve brought no one to this Court to establish a foundation for the reading and understanding and proper interpretation of these reports. It’s just analogous to, it seems, to any sort of report that’s generated like this where you need actually someone to interpret — who is qualified to interpret the report.
I mean, we can all read the numbers on here. And we can all read the names. But that doesn’t mean we understand the report. And that’s the link that’s missing.
(Id. PagelD # 2289-94.)
A.
We first address the Defendants-Appellees’ assertion that the Taser Report
B.
Although we find the Taser Report is not hearsay, that is not to say the report does not present evidentiary questions. See, e.g., Lizarraga-Tirado,
We disagree that this was sufficient grounds for excluding the Taser Report. Derek obtained the Taser Report from Defendants-Appellees in the course of dis
Accordingly, the district court erred in finding the Taser Report was not authenticated.
C.
Having found that the district court erred in excluding the Taser Report, we must next determine whether that error was harmless. Reversible error occurs only where the district court’s erroneous exclusion of evidence affects a substantial right of the party — i.e., if it affected the outcome of the trial. Fed.R.Evid. 103(a); see also United States v. Morales,
The district court suggested that the Taser Report is “like a radiology report” that “requires someone who understands these kinds of reports to interpret them.” (R. 141, Trial Tr. Vol. 4, PagelD # 2290.) This analogy is not entirely suitable. A radiology report clearly requires interpretation by someone with expertise or specialization in reading images on film to diagnosis illness. This report, by comparison, is a fairly straightforward table. It is true that not every table can be read and understood by laymen, but some can. The relevant information, for purposes of this case, however, is contained in the highlighted columns:
Seq. GMT Time Local Time Duration Temp Battery
0299 05/28/06 06:25:27 05/28/06 02:25:27 [a.m.] 6 32 69
0300 05/28/06 06:25:33 05/28/06 02:25:33 [a.m.] 5 33 69
0301 05/28/06. 06:25:42 05/28/06 02:25:42 [a.m.] 9 34 69
0302 05/28/06 06:25:48 05/28/06 02:25:48 [a.m.] 5 34 68
0303 05/28/06 06:25:51 05/28/06 02:25:51 [a.m.] 4 34 68
Plaintiffs counsel was trying to draw testimony from Officer Bickett that his taser registered five trigger pulls in the early morning hours of May 28,2006, when
Defendants-Appellees assert that, if the district court erred in its evidentiary ruling, then the error was harmless because the Taser Report corroborates Officer Bickett’s testimony that he “sparked” his taser at the crowd 3^4 times, then tased Derek twice. (Appellee’s Br. at 21-22.) The opposite is true. In actuality, the Taser Report impeaches Officer Bickett’s testimony, because it shows that the five trigger pulls in question happened in succession over just 24 seconds. The report, therefore, does not support Officer Bick-ett’s testimony of “sparking” the crowd and then, after an unspecified time lapse, tasing Derek. Exclusion of the Taser Report, therefore, does not constitute harmless error.
At trial, defense counsel raised myriad arguments questioning the reliability of the Taser Report.
IV.
Based on the foregoing, we REVERSE the district court’s grant of summary judgment to the officers on Brian Patterson’s claims, and find the district court abused its discretion in excluding the Officer Bick-ett’s Taser Report at Derek Patterson’s trial. This matter is REMANDED for a new trial as to both Brian Patterson and Derek Patterson.
Notes
. Monaghan states all the officers were white, and that Brian is biracial. (R. 51-13, Mona-ghan Dep., PagelD # 627-28.) This would also make Derek biracial, as he and Brian share both of the same parents. (Appellant’s Br. at 9.) Derek and Brian are identified as African American in their appellate brief. (Id. at 13.)
. Other officers were in the immediate area, patrolling other bars.
. Gary testified that he observed the officers dragging Brian into the street. (R. 138, Trial Tr. Vol. 1-A, PagelD # 1700-01.) Gary stated that, as the officers were dragging Brian, Gary stepped into the street and began filming the scene with his cellphone camera. (Id. PagelD # 1701.) Gary further testified that he was tased as he was filming. (Id.)
.It remains unclear whether this individual actually was Derek. Both Sergeant Givens and Derek testified that the individual who attacked Officer Burton was not Derek.
. In Bryan v. MacPherson, the Ninth Circuit explained that in dart mode a taser
uses compressed nitrogen to propel a pair of "probes” — aluminum darts tipped with stainless steel barbs connected to the [taser] by insulated wires — toward the target at a rate of over 160 feet per second. Upon striking a person, the [taser] delivers a 1200 volt, low ampere electrical charge.... The electrical impulse instantly overrides the victim's central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.
. In Mattos v. Agarano, the Ninth Circuit explained:
When a taser is used in drive[]stun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim. In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim’s central nervous system as it does in dart-mode.
.In their response in opposition to Defendants' motion for summary judgment, Derek argued that, by process of elimination, it could only have been Officer Didyk who tackled Derek because Derek was only tackled by one officer; Officer Didyk admitted to being on top of Derek; and Officer Bickett testified he did not tackle Derek. (R. 51, Pis.’ Resp. Opp'n Summ. J., PagelD # 495 n. 6.)
. Officer Burton was not sued.
. In granting summary judgment to the Defendants-Appellees, the district court briefly noted that "Brian’s version of the events differs significantly from that of the officers.” Patterson,
. The central issue in Burke, was what standard of proof a defendant had to satisfy in establishing the voluntariness of a release-dismissal agreement. In Rumery, the plurality opinion authored by Justice Powell suggest- ' ed that a clear and convincing evidence standard applied. 480 U.S at 398,
. Defense counsel objected on the same grounds earlier in Officer Bickett's testimony.
. It is not clear, from the trial transcript, that the district court adopted the defense's hearsay argument or excluded the Taser Report on that ground The district court sustained the defense’s objection due to lack of foundation, failure to authenticate, and, more generally, doubt as to whether the Taser Report is understandable without a foundational witness.
. For instance, defense counsel argued that the duration of taser shots on the model taser used by Officer Bickett is calculated differently than the duration of taser shots a different model taser that he is personally familiar with from another case he litigated. (R. 141, Trial Ti;. Vol. 4, PagelD # 2290-93.) Defense counsel’s personal knowledge is not evidence. But even assuming this assertion is true, Plaintiffs counsel does not argue that the duration of each trigger pull is relevant. Rather, it is the sequence of the taser shots that is relevant to Derek’s claim.
Concurrence Opinion
concurring in part and dissenting in part.
Although I agree with the majority that we should remand Derek Patterson’s claims for a new trial, I think the district court properly granted summary judgment to the defendants on Brian’s claims. Brian surely knew what he was doing when he released his claims. A conscientious state trial judge supervised the procedure by which Brian released them. And by agreeing to release them, Brian avoided the possibility of a felony conviction that would have forever changed his life for the worse. Indeed Brian would have been foolish not to have taken the deal. We should hold him to it.
I respectfully dissent from the remand in Brian’s case.