Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 or4a4i - K76 In the Court of Common Pleas Franklin County, Ohio Lieutenant Lowell Rector, 120 Marconi Boulevard Case No. Columbus, Ohio 43215, Judge: and Sergeant Caroline Castro, 120 Marconi Boulevard Columbus, Ohio 43215, and Sergeant Justin Coleman, 120 Marconi Boulevard Columbus, Ohio 43215, and Officer Rufus Goodwin, 120 Marconi Boulevard Columbus, Ohio 43215, and Officer Shannon Schmid 120 Marconi Boulevard Columbus, Ohio 43215, Plaintiffs, y. The City of Columbus, 90 W Broad Street Columbus, OH 43215, and Kathleen Garber, in her official capacity as speciall prosecutor, 77 North Front Street Columbus, OH 43215,Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 oF4aa1 - KIT and Richard Wozniak, int his official capacity as Deputy Director of Public Safety, 77 North Front Street Columbus, OH 43215, Defendants. Verified Complaint for Declaratory Judgment, Temporary Restr: and Preliminary and Permanent Injunctive Relief ig Order Now come the Plaintiffs, by and through the undersigned counsel, and for their Complaint against the Defendants state as follows, L Nature of the Action 1. This is an action for declaratory judgment, a temporary restraining order, and a preliminary and permanent injunction pursuant to O.R.C. Chapter 2721, O.R.C. Chapter 2727, and Ohio Civ. R. 65. The action arises from Defendants’ issuance of investigatory subpoenas in reliance on an unconstitutional City Ordinance as well as a local rule of the Franklin County Municipal Court which impermissibly conflicts with the controtling Rule of Criminal Procedure. Juri iction and Venue 2. This Court has jurisdiction pursuant to the Declaratory Judgments statute, O.R.C. § 2721.02(A) and O.R.C. § 2727.03 3. Venue is proper in Franklin County, Ohio under Ohio Civ. R. 3(CX3), 3(C\(4), and 3(C)(6) since Defendants conducted activity that gave rise to the claim of relief in Franklin County; Defendants’ maintain their principal office in Franklin County; and the entire claim for relief arose in Franklin CountyFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 oF4aa1 - K78 4. T 10. u Plaintiffs each have standing to bring this action for declaratory and injunctive relief since there is a substantial likelihood that Plaintiffs will suffer irreparable injury if equitable relief is not granted, injury that is individualized to the PlaintifYS and not bome by the general population in the State of Ohio or Franklin County. And Plaintiffs’ rights are in imminent peril which requires speedy relief to preserve Plaintiffs’ rights. ‘The Parties Plaintiff Lowell Rector is a resident of the State of Ohio. He is employed by the Columbus Division of Police (“CPD”), and he holds the rank of lieutenant, a position he held at all relevant times to this action, Plaintiff Caroline Castro is a resident of the State of Ohio. She is employed by CPD, and she holds the rank of sergeant, a position she held at all relevant times to this action Plaintiff Justin Coleman is a resident of the State of Ohio, He is employed by CPD, and he holds the rank of sergeant, a position he held at all relevant times to this action. Plaintiff Rufus Goodwin is a resident of the State of Ohio. He is employed by CPD, and he holds the rank of officer, a position he held at all relevant times to this action Plaintiff Shannon Schmid is a resident of the State of Ohio. He is employed by CPD, and he holds the rank of officer, a position he held at all relevant times to this action Defendant City of Columbus is a political subdivision of the State of Ohio and municipal corporation formed and governed pursuant to Article XVIII of the Ohio Constitution, and at all times material to this Complaint, was the employer of Defendants Garber and Wozniak. Defendant Kathleen Garber is a special prosecutor employed by Defendant City of Columbus, a position she has held at all times relevant to this Complaint.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 or4aai - K79 12, Defendant Richard Wozniak is a deputy director of the Department of Public Safety employed by Defendant City of Columbus, a position he has held at all times relevant to this Complaint, At all times relevant to this Complaint, Defendant Wozniak was a civitian and was not an active member of any law enforcement agency TV. Factual Allegations 13, Following the death of George Floyd in Minneapolis on May 25, 2020, widespread protests broke out in Columbus primarily in the downtown area beginning on or about May 28, 2020, 14, White most protesters were peaceful, some were not. And those who were not peaceful engaged in violent acts such as throwing bricks, rocks, chunks of concrete, and even scooters at officers. Others launched class A fireworks at officers. Property damage was also significant: In the first ten days of the protests alone, property damage reportedly reached $3,300,000.00. 15, Members of CPD were overwhelmed by the onslaught of violence and property destruction in the first few days and weeks of the protests and riots. 16. The City requested numerous other local police jurisdictions to aid in maintaining law and order in the downtown area due to the violence and property damage. 17, When warranted under the law, CPD’s use of force policy, and/or Division directives, members of CPD engaged in uses of force on multiple occasions during the protests—or perhaps more specifically in these contexts, “riots.” 18, When a member engages in a use of force, he or she is generally required under Division policies and directives to report the use of force to his or her supervisor (typically via a “Use of Force” report), Supervisors then usually conduct administrative investigations toFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 OF441 - K80 19. 20. 21 22. 23. determine whether or not the use of force was within policy. As part of those investigations, supervisors usually question the member regarding their use of force. Members are required to answer their supervisor's questions under threat of insubordination, In other words, if'a member refuses to answer the supervisor's question(s), then the member can be disciplined or discharged. In exchange, however, the member's testimony cannot be criminally used against him or her under prevailing law (Le, “Garrity As the protests (and riots) wore on, Mayor Ginther made it clear on multiple occasions that he was not happy with CPD’s response. In fact, he befieved that some members of CPD may have violated Division directives or policies as well as criminal statutes. The City established an email address—reportCPD@columbus gov—for civilians to submit complaints regarding CPD arising from the protests/riots After establishing that email address, the City hired Baker & Hostetler LLP pursuant to an initial contract in the sum of $500,000.00 to conduct administrative investigations of members of CPD arising from the protests/riots In early July of 2020, Defendant City of Columbus hired Defendant Worniak as a deputy director of the Department of Public Safety, a civilian position, for the purpose of investigating whether any member(s) of CPD committed criminal acts during the widespread protests and riots which occurred primarily in downtown Columbus throughout the summer of 2020. In early July of 2020, Defendant City of Columbus also hired Defendant Garber as a special prosecutor within the City Attorney's Office for the purpose of prosecuting any member(s) of CPD alleged by Deputy Director Wozniak to have committed criminalFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 OF441 - K81 24 28, 26. 21. offenses during the widespread protests and riots which occurred primarily in downtown. Columbus throughout the summer of 2020. For use in his investigations, Defendant City gave Defendant Wozniak access to all CPD directives, rules, regulations, standard operating procedures, operating manuals, as well asall relevant Use of Force reports, After Action reports, memoranda between members of CPD, body-worn-camera footage, surveillance footage from cameras in the downtown area, cell phone footage submitted by members of the public, and complaints submitted to the City by the general public. Beginning in the fall of 2020, then-Chief of Police Thomas Quinlan posted videos of several events on CPD's internal network for which Defendant Wozniak was investigating. Chief Quinlan sent email correspondence to all members of CPD and directed them to wateh the videos and to come forward with any information known of the event(s). Recently, Interim Chief of Police Michael Woods again sent out division- wide correspondence directing officers to watch the videos posted on CPD’ internal network to determine whether the officer knew any information regarding the event. Beginning in November of 2020, Defendant Wozniak started sending requests for voluntary interviews to numerous members of various ranks within CPD, including Plaintiffs Rector, Castro, Coleman, Schmid, and Goodwin, Each Plaintiff declined the request for a voluntary interview, While some other members voluntarily agreed to an. interview, most other members declined to be interviewed Pursuant to Section 8.9 of the collective bargaining agreement between Defendant City and the exclusive representative of members of CPD below the rank of Deputy Chief,Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 OF441 - K82 28. 29. CPD is not permitted to administratively punish an officer for refusing to submit to questioning regarding a criminal investigation At the request of Defendant Wozniak, on March 4, 2021 the Franklin County Municipal Court issued an investigative subpoena to Plaintiff Rector. Defendant Wozniak served the subpoena on Plaintiff Rector the next day via email, The subpoena was issued pursuant to Columbus City Code § 2301.15 and Local Rule 4.12 of the Franklin County Municipal Court. Plaintiff Rector was ordered to appear before the Municipal Court on March 23, 2021 to answer questions under oath regarding the events surrounding the alleged assault of protestors at the intersection of E. Broad St. and N, Grant Ave. on May 30, 2020, at or about 10:15 p.m. at the intersection of N. High St. and Lane Avenue in Columbus, Ohio.” Alternatively, Plaintiff Rector was given the option of complying with the subpoena by supplying the requested information to Defendant Wozniak outside of court at a date and time convenient to all parties. Prior to Baker & Hostetler LLP and Defendant Wozniak’ s investigations, Plaintiff Rector began administrative investigations of the events being investigated by Defendant Wozniak—those events listed in Paragraph 28, Plaintiff Rector reviewed use of force reports from several officers from those events as part of his investigation, When sent up the chain of command from a sergeant to lieutenant, Use of Force reports often contain statements of officers given to their sergeants pursuant to an order from the sergeant. Any statement made to a supervisor pursuant to an order to answer the supervisor's question(s) is immunized from use in a criminal matter against the officer that made the compelled statement.Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 oF4aa1 - K83 30. 31 At the request of Defendant Wozniak, on March 4, 2021 the Franklin County Municipal Court issued an investigative subpoena to Plaintiff Castro. Defendant Wozniak served the subpoena on Plaintiff Castro the next day via email, The subpoena was issued pursuant to Columbus City Code § 2301.15 and Local Rule 4.12, Plaintiff Castro was ordered to appear before the Municipal Court on March 23, 2021 to answer questions under oath regarding “events surrounding the alleged assault of protestors on the night of May 29, 2020 at E. Broad St and N. High St, and Broad and Marconi and on the day of May 30, 2020 at E. Broad St. and N. Grant and at Pearl Alley just North of Broad St. in Columbus, Ohio.” Alternatively, Plaintiff Castro was given the option of complying with the subpoena by supplying the requested information to Defendant Wozniak outside of court at a date and time convenient to all parties. Prior to Baker & Hostetler LLP and Defendant Wozniak’s investigations, Plaintiff Castro started an administrative investigation for at feast one of the events now being investigated by Defendant Wozniak listed in Paragraph 30. As part of the administrative investigation, Sgt. Castro interviewed several officers, including the officer with the principal use of force now being investigated by Defendant Wozniak At the request of Defendant Wozniak, on March 4, 2021 the Franklin County Municipal Court issued an investigative subpoena to Plaintiff Coleman, Defendant Wozniak served ‘the subpoena on Plaintiff Coleman the next day via email. The subpoena was issued pursuant to Columbus City Code § 2301.15 and Local Rule 4.12, Plaintiff Coleman was ordered to appear before the Municipal Court on March 23, 2021 to answer questions under oath regarding “the events surrounding the alleged assault of protestors on the night of May 29, 2020 at E. Broad St and N. High St and on the day of May 30, 2020 atFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 oF4aa1 - Ke 33, 34, E, Broad St, and N. Grant Ave, in Columbus, Ohio.” Altematively, Plaintif Coleman was given the option of complying with the subpoena by supplying the requested information to Defendant Wozniak outside of court at a date and time convenient to all parties. Prior to Baker & Hostetler LLP and Defendant Wozniak’ s investigations, Plaintiff Coleman conducted an administrative investigation of at least one event now being investigated by Defendant Wozniak listed in Paragraph 32. As part of the adminis. investigation, Sgt. Coleman interviewed the officer with the principal use of force now under investigation by Defendant Wozniak, At the request of Defendant Wozniak, on March 3, 2021 the Franklin County Municipal Court issued an investigative subpoena to Plaintiff Schmid, Defendant Wozniak served the subpoena on PlaintitY Schmid that same day via email. The subpoena was issued pursuant to Columbus City Code § 2301.15 and Local Rule 4.12. Plaintiff Schmid was ordered to appear before the Municipal Court on March 22, 2021 to answer questions under oath regarding the events surrounding the arrest of Nadia Lynch on May 30, 2020. Alternatively, Plaintiff Schmid was given the option of complying with the subpoena by supplying the requested information to Defendant Wozniak outside of court at a date and time convenient to all parties At the request of Defendant Wozniak, on March 4, 2021 the Franklin County Municipal Court issued an investigative subpoena to Plaintiff Goodwin, Defendant Wozniak served the subpoena on Plaintiff Goodwin the same day via email. The subpoena was issued pursuant to Columbus City Code § 2301.15 and Local Rule 4.12. Plaintiff Goodwin was ordered to appear before the Municipal Court on March 23, 2021 to answer questionsFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 or4aai - Ke5 under oath regarding “The events surrounding the alleged assault of three OSU Lantern staff members on June 1, 2020 at or about 10:15p.m. at the intersection of N. High Street and Lane Avenue in Columbus, Ohio.” Alternatively, Plaintiff Goodwin was given the option of complying with the subpoena by supplying the requested information to Defendant Wozniak outside of court at a date and time convenient to all parties. Claims for Relief A, First Count: Action for Declaratory Judgment (as to all Plaintiffs) that City Ordinance § 2301.15 Violates the Ohio Constitution's Home Rule Amendment 36, Plaintiffs reallege and incorporate the allegations set forth in Paragraphs 1 through 35 as if fully restated herein. 37. Section 3, Article XVIII of the Ohio Constitution, (the “Home Rule” Amendment) states: Municipalities shall have authority to exercise all powers of local sel government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws 38, Pursuant to the Home Rule Amendment, municipalities may not adopt any ordinances dealing with police power that conflict with state general laws. 39, Under O.R.C. § 2935.23, titled “Witnesses in felony investigations,” After a felony has been committed, and before any arrest has been made, the prosecuting attorney of the county, or any judge or magistrate, may cause subpoenas to issue, returnable before any court or magistrate, for any person to give information concerning such felony. The subpoenas shall require the witness to appear forthwith. Before such witness is required to give any information, he must be informed of the purpose of the inquiry, and that he is required to tell the truth concerning the same He shall then be sworn and be examined under oath by the prosecuting attorney, or the court or magistrate, subject to the constitutional rights of the witness, Such examination shall be taken in writing in any form, and shall be filed with the court or magistrate taking the testimony. Witness shall be paid to such persons as in other casesFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Mar 19 1:44 PM-21CV001711 or4aai - Kee 40, ORC, § 2935.23 is a state general law dealing with police power. 41, Under City Ordinance § 2301.15(A), After a misdemeanor offense has been committed, and before a criminal complaint has been filed or an arrest has been made, the city attorney or any judge of the Franklin County Municipal Court, may cause a subpoena to issue returnable before such court, for any person to give information concerning such misdemeanor offense, including designated books, records, or other documents, The subpoena shall require the witness to appear forthwith at a time designated in the subpoena, 42. City Ordinance § 2301.15(A) pertains to police power and directly conflicts with O.R.C. § 2935.23, which allows for an investigative subpoena to issue only for a felony offense. Because of the direct conflict, City Ordinance § 2301.15(A) violates Section 3, Article XVIII of the Ohio Constitution. Accordingly, Plaintiffs are entitled to a declaratory judgment declaring City Ordinance § 2301.15 unconstitutional under Section 3, Article XVIII of the Ohio Constitution. B. Second Count: Action for Declaratory Judgment (as to all Plaintiffs) that Local Rule 4.12 of the Franklin County Municipal Court Violates Article IV. Section 5 of Ohio’s Constitution 43, Plaintiff’ reallege and incorporate the allegations set forth in Paragraphs | through 42 as if fully restated herein 44, Under Article IV, Section 5(B) of the Ohio Constitution, ‘The Supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right, Proposed rules shail be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the General Assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the General Assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.