Professional Documents
Culture Documents
Kern Complaint Filed
Kern Complaint Filed
PageID #: 1
Defendants :
Introduction
where the individual has not been involved in a crime. It is equally clearly established
law that an arrest cannot be maintained without probable cause. Defendants violated this
1
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 2 of 20. PageID #: 2
clearly established law in their arrest of the Plaintiff on September 22, 2022, and this
Parties
2. Plaintiff is a resident and citizen of Ohio, and the United States, and is a black male.
3. Defendants, Sergeant Naftali Wolf and Officer Carli Lewis (“Defendant Wolf” and
“Defendant Lewis”), are police officers by and for the City of Cleveland Heights, Ohio,
and were so acting in that capacity, and under color of law, on or about September 22,
4. Defendant City of Cleveland Heights, Ohio, was and is a municipality within Ohio.
5. Subject matter jurisdiction over the federal claims and causes of action asserted by
Plaintiff in this case is conferred on this Court pursuant to 42 U.S.C. §1983, 42 U.S.C. §
1988, 28 U.S.C. §1331, 28 U.S.C. §§ 2201 and 2202, and other applicable law.
6. Subject matter jurisdiction over the state law claims and causes of action asserted by
Plaintiff in this case is conferred on this Court pursuant to 28 U.S.C. §1367, because such
state law claims arise from the same exact facts as the federal claims, and thus are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.
7. Venue in this district is proper pursuant to 28 U.S.C. §1391 and other applicable law.
2
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 3 of 20. PageID #: 3
9. On or about September 22, 2022, in the course of conducting law enforcement operations
involving another motorist, Defendant Lewis improperly and recklessly cut off Plaintiff
from the flow of traffic, almost causing a traffic accident, and resulting in Plaintiff having
to pull off to the side of the road. For the avoidance of all doubt, Plaintiff committed no
traffic offense.
10. Defendant Lewis’ lights and sirens were not activated when she acted recklessly in
cutting off Plaintiff and forcing him to the side of the road.1
11. After Plaintiff had pulled over, Defendant Lewis then activated lights on her police
12. Once outside her police vehicle, Plaintiff told Defendant Lewis that she had not activated
her lights and sirens, had almost hit him, and he wanted to obtain her name and badge
number in order to file a complaint. Plaintiff stated several times to Defendant Lewis that
13. Defendant Lewis apologized to Plaintiff for her actions and, it appeared, the situation was
resolved.
14. However, Defendant Wolf then arrived on scene, approached Plaintiff, who was still
upset and shaken from the near-accident, and immediately got confrontational with
Plaintiff.
15. Despite having just arrived at the scene, and knowing nothing about what had happened
to that point, Defendant Wolf presumed that Plaintiff had done something wrong, and
1
We know that, in part, because the stop itself is not recorded, and the cameras that would have
recorded the stop are activated when the lights and sirens are activated. Camera recording occurs
after the vehicles are already pulled over to the side of the road.
3
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 4 of 20. PageID #: 4
was at fault for the situation, merely because Plaintiff is black. Without having any basis
to do so, Defendant Wolf falsely accused Plaintiff of having pulled up behind an officer
at a traffic stop.
16. In response, Plaintiff truthfully stated that Defendant Wolf did not even know what was
going on, and Defendant Wolf admitted that “you’re right, I don’t.”
17. In response, Plaintiff asked Defendant Wolf “why are you saying that?”
18. Doubling down, and driven by racial animus, Defendant Wolf responded “because what
19. Plaintiff then truthfully explained that he was driven off the road by Defendant Lewis.
And again, Defendant Wolf responded, “then you should have pulled over for lights and
sirens.” Plaintiff stated that this was not accurate and that there was a “disconnect.”
20. Defendant Lewis then told Defendant Wolf that she was going to let Plaintiff go.
However, Defendant Lewis then asked Plaintiff for his last name, and Plaintiff responded
21. Demonstrating that he was determined to illegally arrest Plaintiff, Defendant Wolf then
stated “well now you are going to be under arrest, because what you are doing is illegal, I
23. In response, Defendant Wolf stated “if you want to be,” and Plaintiff then asked what
24. Defendant Wolf, who previously admitted he wasn’t there and didn’t know what
happened, but having determined in his own mind that Plaintiff was guilty of driving
4
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 5 of 20. PageID #: 5
while black, falsely repeated that Plaintiff failed to yield to lights and sirens (which were
25. Defendant Wolf also told Plaintiff that he had to identify himself.
26. Plaintiff responded that he was going to videotape the interaction. Defendant Wolf
27. Plaintiff stated that Defendant Wolf was violating his rights.
28. Plaintiff’s repeated exercise of his free speech rights to criticize Defendants Lewis and
29. Seconds after Plaintiff told Defendant Wolf that he was violating Plaintiff’s rights,
Defendant Wolf retaliated by radioing to dispatch that he had a “male who was
obstructing,” thus demonstrating his intention to carry out a retaliatory arrest for
30. As Defendant Wolf stepped away to run Plaintiff’s vehicle to see who owned it,
31. Plaintiff was then detained by Defendants Lewis and Wolf and was not free to leave. He
asked several times if he was free to leave, and was told that he was not free to leave.
32. Defendant Wolf demanded that Plaintiff produce his identification, under threat of arrest,
even though Plaintiff had not committed, nor was he suspected of committing, any
offenses.
34. Defendant Wolf then spoke with Defendant Lewis, then he escalated the situation further,
5
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 6 of 20. PageID #: 6
35. Plaintiff again declined to produce his identification, asking Defendant Lewis what
36. In response, Defendant Lewis admitted that Plaintiff committed no crime and was not
being investigated for any crime, and Defendant Wolf heard her state as much.
37. Defendant Wolf then stated that “I’m going to have to arrest you if you do not identify
yourself.”
39. Defendants Wolf and Lewis then ostensibly placed Plaintiff under arrest for an alleged
violation of obstructing official business, which is codified at R.C. 2921.31. They did so
despite clearly established Sixth Circuit (and Ohio) case law, that mere refusal to produce
identification is not a violation of that section, as set forth in Lyons v. City of Xenia, 417
F.3d 565, 574 (6th Cir. 2005); State v. Ellis, 8th Dist. Cuyahoga No. 108302, 2020-Ohio-
1115 (8th Dist. 2020); Brooklyn v. Kaczor, 8th Dist. Cuyahoga No. 98816, 2013-Ohio-
2901 (8th Dist. 2013); State v. McCrone, 63 Ohio App.3d 831, 580 N.E.2d 468 (9th
Dist.1989).
40. In so doing, Defendant Wolf acted maliciously, and in part because he had a racial
animus.
41. In the process of illegally arresting Plaintiff, Plaintiff told Defendant Wolf that he was
injuring Plaintiff. As a matter of fact, Defendant Wolf injured Plaintiff’s shoulder when
42. Specifically, in the course of handcuffing Plaintiff, Defendant Wolf used excessive force,
and caused injury to Plaintiff’s shoulder, dislocating it, and ultimately causing Plaintiff to
6
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 7 of 20. PageID #: 7
need to seek medical treatment, which includes required surgery and significant
43. In a pretense effort to then use more gratuitous force, Wolf falsely stated “stop resisting,”
44. Defendant Wolf also reached into Plaintiff’s pockets to illegally search him.
45. Plaintiff again stated that Defendant Wolf was violating his rights, and in response,
46. After Plaintiff repeated that his rights were being violated, Defendant Wolf responded
47. Only after Plaintiff was placed in handcuffs and put in the police vehicle, did Defendant
Wolf proceeded to find out what actually happened by finally asking Defendant Lewis.
48. To cover up the patently illegal arrest, Defendant Wolf knew he had to charge Plaintiff
with something, and thus he made up charges that Plaintiff did not commit, to include
49. Defendant Lewis responded that she did not need to give him a ticket for failing to yield
(suggesting that Plaintiff did not commit that offense), to which Defendant Wolf
50. When Defendant Lewis admitted that those charges might not be appropriate, Defendant
Wolf stated “we can’t,” because Wolf knew that he had illegally and unconstitutionally
arrested Plaintiff, and thus he needed to make up some charge to try and justify his
2
Plaintiff’s complaints of injury are captured in contemporaneous body worn camera footage
and are documented in medical records from that same day after Plaintiff sought treatment.
7
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 8 of 20. PageID #: 8
51. Defendant Wolf then stated that Plaintiff could “come to court” to defend himself against
52. Defendant Wolf directed Defendant Lewis to complete the illegal arrest and charging,
and Defendant Lewis did so. She had the opportunity to intervene, to stop Defendant
Wolf several times, including in advance of Defendant Wolf arresting Plaintiff, but she
declined to do so.3
53. Plaintiff was then examined by the medics in the ambulance and then went to the hospital
54. Plaintiff was cited and charged with obstructing official business, but, because there was
no probable cause for such a charge, the Cleveland Heights Prosecutor dismissed the
charges a few days later, on October 3, 2022, citing no evidence to sustain the charge.
55. Defendant Wolf has a significant history of troubling incidents that the City of Cleveland
Heights has failed to take appropriate action to address, all predating the incident in
3
To the extent Lewis may argue that she was merely following the orders of Wolf, "since World
War II, the 'just following orders' defense has not occupied a respected position in our
jurisprudence, and officers in such cases may be held liable under § 1983 if there is a reason why
any of them should question the validity of that order." Kennedy v. City of Cincinnati, 595 F.3d
327, 337 (6th Cir. 2010), quoting O'Rourke v. Hayes, 378 F.3d 1201, 1210 n.5 (11th Cir. 2004).
“Regardless of the authority [Wolf] possessed, [Lewis] was not "relieve[d] . . . of [her]
responsibility to decide for himself whether to violate clearly established constitutional rights[.]"
Id.
8
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 9 of 20. PageID #: 9
confrontations with minorities (May, 2021), and errors of judgment in law enforcement
(May, 2020).
56. Again, this incident with Plaintiff is merely the latest example of Defendant Wolf’s
harass and injure minorities, such as Mr. Kern, because they are black.
57. Ongoing and serious deficiencies in official policy, unofficial custom, and deliberate
indifference in the Cleveland Heights Police Department are both well known, and well
documented.
58. For instance, the current Mayor, Kahlil Seren, has made numerous public statements
identifying these failures, both prior to, and after the incident in question, including in the
areas of policies and procedures for receiving, investigating, resolving, and reporting
complaints related to police misconduct, with the Mayor, in comments to the media,
describing existing policies as “insufficient” and known by the City prior to the incident
in question. Specifically, citizen and internal complaints have been handled internally,
59. Defendant, the City of Cleveland Heights, is liable for the misconduct of Defendants
Wolf and Lewis because, among other reasons, the violations cited herein resulted from
the city’s official policy, an unofficial custom, and/or because the city was deliberately
60. After the incident in question, Plaintiff met with the Chief of Police of Cleveland
Heights, who acknowledged and admitted to him that the City of Cleveland Heights had
inadequate training on issues of constitutional rights and race in policing, that likely led
9
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 10 of 20. PageID #: 10
to the interaction in question, demonstrating not only inadequate policies, but knowledge
61. That is even more the case in light of prior incidents involving Defendants Wolf and
confrontations with minorities (May, 2021), and errors of judgment in law enforcement
(May, 2020). The City and their officials were aware of these incidents, but engaged in
COUNT I – Violation of the Fourth Amendment (42 USC § 1983, all Defendants)
63. The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
64. When such a seizure though an automobile stop occurs, it must be based on reasonable
suspicion under the Fourth and Fourteenth Amendment, and Defendants Lewis and Wolf
had no such reasonable suspicion for any detention of the Plaintiff, but they nevertheless
continued an illegal detention of Plaintiff. The rights at issue were clearly established in
65. Defendants Wolf and Lewis’ continued detention of Plaintiff likewise unconstitutionally
rights under clearly established law under the Fourth and Fourteenth Amendment.
United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999).
66. The arrest of Plaintiff by Defendants Wolf and Lewis was without probable cause under
clearly established case law. Miller v. Sanilac County, 606 F.3d 240 (6th Cir. 2010);
10
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 11 of 20. PageID #: 11
Green v. Throckmorton, 681 F.3d 853 (6th Cir. 2012); Lyons v. City of Xenia, 417 F.3d
67. The gratuitous use of force by Defendant Wolf has consistently been held to be excessive
under clearly established case law. See, e.g., Morrison v. Bd. Of Trs. of Green Twp., 583
F.3d 394, 407 (6th Cir. 2009); Lawler v. City of Taylor, 268 F. App'x 384, 387 (6th Cir.
2008); Shumate v. City of Adrian, 44 F.4th 427, 446 (6th Cir. 2022); Meirthew v. Amore,
68. Further, in addition to her personal facilitation and participation, as described herein,
Defendant Lewis is liable under a failure to intervene theory because she observed or
had reason to know that excessive force would be or was being used, and she had both
the opportunity and the means to prevent the harm from occurring, by simply telling
Defendant Wolf that she was to blame for the encounter and that Plaintiff had not broken
the law, in contravention of clearly established law set forth in Floyd v. City of Detroit,
518 F.3d 398, 406 (6th Cir. 2008). In fact, Defendant Lewis admitted, as Plaintiff was
being arrested, that “this is messed up,” demonstrating her knowledge and ability to
69. Defendants, acting under color of any statute, ordinance, regulation, custom, or usage, of
the State of Ohio, subjected the Plaintiff, a citizen of the United States, to be deprived of
his rights, privileges, or immunities secured by the Constitution, and thus are liable to the
70. Furthermore, as a consequence and the proximate and actual cause of the foregoing and
the actions of Defendants, Plaintiff has suffered various damages, including, without
limitation, physical injury, the need for shoulder surgery that his medical providers relate
11
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 12 of 20. PageID #: 12
to the arrest in question, medical damages, mental distress, pain and suffering,
humiliation, economic damages in the form of lost wages due to the medical treatment,
and other damages, such as will be proven at trial, which exceeds $250,000.
71. Defendant, City of Cleveland Heights is likewise liable under Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978) for the foregoing Fourth Amendment violations,
because (i) officials with final decision making authority ratified illegal actions; (ii) the
City had and may still have a policy of inadequate training or supervision, including the
failure to investigate, supervise, and take appropriate action with respect to Wolf, despite
the existence of prior legitimate complaints against him for similar unconstitutional
misconduct; and (iii) the City had and may still have a custom of tolerance or
acquiescence of federal rights violations. See Thomas v. City of Chattanooga, 398 F.3d
72. Plaintiff further seeks punitive damages against Defendants Wolf and Lewis, in their
individual capacities, since the actions complained of were motivated by evil motive or
intent, and/or involved reckless or callous indifference to the federally protected rights of
their individual capacities, in an amount to be determined at trial, but not less than
73. Plaintiff further seeks his reasonable attorney fees and costs under 42 U.S.C. § 1988 for
these violations.
COUNT II – Violation of the First Amendment (42 USC § 1983, all Defendants)
12
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 13 of 20. PageID #: 13
75. Plaintiff engaged in clearly established protected speech in questioning the Defendant
officers for their illegal activities and for his speech as set forth in, among other things,
paragraphs 12, 16, 17, 19, 23, and 27, as well as Plaintiff’s repeated verbal refusals to
accede to the illegal demand to identify himself, and as set forth in and clearly established
by City of Houston v. Hill, 482 U.S. 451, 461-463 (1987), McCurdy v. Montgomery
County, 240 F.3d 512, 520 (6th Cir. 2001), Barnes v. Wright, 449 F.3d 709, 718 (6th Cir.
2006), Greene v. Barber, 310 F.3d 889, 895-96 (6th Cir. 2002).
76. Defendants Wolf and Lewis retaliated against Plaintiff for this protected speech by
engaging in several adverse actions that would deter a person of ordinary firmness from
engaging in such protected speech, including, without limitation, by detaining him and
then arresting him and charging him, all without probable cause.
77. There is a causal connection between Plaintiff’s protected speech and the adverse actions,
in part because Defendants Wolf and Lewis admit that is why they are engaging in the
adverse actions.
78. Defendants have thus violated Plaintiff’s clearly established First Amendment rights, as
set forth in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999), establishing that all three
79. Further, in addition to her personal facilitation and participation, as described herein,
Defendant Lewis is liable under a failure to intervene theory because she observed or had
reason to know that excessive force would be or was being used, and she had both the
opportunity and the means to prevent the harm from occurring, by simply telling
Defendant Wolf that she was to blame for the encounter and that Plaintiff had not broken
13
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 14 of 20. PageID #: 14
the law, in contravention of clearly established law set forth in Floyd v. City of Detroit,
80. Defendants, acting under color of any statute, ordinance, regulation, custom, or usage, of
the State of Ohio, subjected the Plaintiff, a citizen of the United States, to be deprived of
his rights, privileges, or immunities secured by the Constitution, and thus are liable to the
81. Furthermore, as a consequence and the proximate and actual cause of the foregoing and
the actions of Defendants, Plaintiff has suffered various damages, including, without
limitation, physical injury, the need for shoulder surgery that his medical providers relate
to the arrest in question, medical damages, mental distress, pain and suffering,
humiliation, economic damages in the form of lost wages due to the medical treatment,
and other damages, such as will be proven at trial, which exceeds $250,000.
82. Defendant, City of Cleveland Heights is likewise liable under Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978) for the foregoing Fourth Amendment violations,
because (i) officials with final decision making authority ratified illegal actions; (ii) the
City had and may still have a policy of inadequate training or supervision, including the
failure to investigate, supervise, and take appropriate action with respect to Wolf, despite
the existence of prior legitimate complaints against him for similar unconstitutional
misconduct; and (iii) the City had and may still have a custom of tolerance or
acquiescence of federal rights violations. See Thomas v. City of Chattanooga, 398 F.3d
83. Plaintiff further seeks punitive damages against Defendants Wolf and Lewis, in their
individual capacities, since the actions complained of were motivated by evil motive or
14
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 15 of 20. PageID #: 15
intent, and/or involved reckless or callous indifference to the federally protected rights of
their individual capacities, in an amount to be determined at trial, but not less than
84. Plaintiff further seeks his reasonable attorney fees and costs under 42 U.S.C. § 1988 for
these violations.
86. Defendant Wolf, in grabbing Plaintiff, and maliciously twisting his arm behind Plaintiff’s
touching to the person of the Plaintiff, with the requisite intent, and has proximately and
actually caused him severe and significant damage, requiring shoulder surgery and repair,
and has caused him medical damages, pain and suffering, humiliation, mental distress,
and other damages, such as will be proven at trial, which exceeds $250,000, thus
87. Prior to committing the foregoing civil battery, Defendant Wolf intentionally placed
Plaintiff in apprehension of contact with him, without the consent of Plaintiff, committing
civil assault, proximately and actually causing him mental distress, economic damages in
the form of lost wages due to the medical treatment, and other damages, such as will be
4
For the avoidance of all doubt, Counts III, IV, V, VI, and VII are state law claims.
15
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 16 of 20. PageID #: 16
88. While officers are privileged for battery or assault for making a lawful arrest, that
privilege is not existent where, as here, the arrest was not lawful, and excessive force was
89. Plaintiff further seeks punitive damages against Defendant Wolf for the arrest, because it
was done with the requisite malice and state of mind of oppression, in an amount to be
proven at trial.
90. Defendant Wolf’s acts or omissions were with malicious purpose, in bad faith, or in a
92. Defendants Wolf and Lewis confined Plaintiff intentionally, without privilege, and
against his consent, confined Plaintiff within the roadside area and did not permit him to
leave, which occurred for the duration of the appreciable time of the roadside detention,
93. The foregoing has proximately and actually caused Plaintiff damages, leading to the
wrongful arrest and injury, which required shoulder surgery and repair, and has caused
him medical damages, pain and suffering, humiliation, economic damages in the form of
lost wages due to the medical treatment, mental distress, and other damages, such as will
94. Plaintiff further seeks punitive damages against Defendants Wolf and Lewis, because it
was done with the requisite malice and state of mind of oppression, in an amount to be
proven at trial.
16
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 17 of 20. PageID #: 17
95. Defendant Wolf and Lewis’ acts or omissions were with malicious purpose, in bad faith,
97. Plaintiff was intentionally and unlawfully arrested by Defendants Wolf and Lewis.
98. For the benefit of all doubt, there was no probable cause for that arrest.
99. The foregoing has proximately and actually caused Plaintiff damages, which required
shoulder surgery and repair, and has caused him medical damages, pain and suffering,
humiliation, mental distress, economic damages in the form of lost wages due to the
medical treatment, and other damages, such as will be proven at trial, which exceeds
$250,000.
100. Plaintiff further seeks punitive damages against Defendants Wolf and Lewis,
because it was done with the requisite malice and state of mind of oppression, in an
101. Defendant Wolf and Lewis’ acts or omissions were with malicious purpose, in
103. Defendants Lewis and Wolf had malice in the institution of the false obstruction
charge against Plaintiff; specifically, that malice included a knowing and deliberate
attempt to insulate themselves against liability for the wrongful detention and wrongful
arrest of Plaintiff, and was made without the purpose to bring Plaintiff to justice, but
17
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 18 of 20. PageID #: 18
105. The dismissal of that charge, effected on or about October 3, 2022, was in
Plaintiff’s favor.
106. The obstruction charge was made at the insistence of and was instituted by
107. The foregoing has proximately and actually caused Plaintiff damages, which
required shoulder surgery and repair, and has caused him medical damages, pain and
suffering, humiliation, mental distress, economic damages in the form of lost wages due
to the medical treatment, and other damages, such as will be proven at trial, which
exceeds $250,000.
108. Plaintiff further seeks punitive damages against Defendants Wolf and Lewis,
because it was done with the requisite malice and state of mind of oppression, in an
109. Defendant Wolf and Lewis’ acts or omissions were with malicious purpose, in
111. The entirety of the interactions herein were the consequence of Defendant Lewis’
negligent operation of her motor vehicle, as set forth in R.C. 2744.02(B)(1), and she was
112. The entirety of the events, including the injuries to Plaintiff, stemmed from that
18
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 19 of 20. PageID #: 19
113. Thus, Defendant, City of Cleveland Heights, is liable under R.C. 2744.02(B)(1)
A. That Plaintiff be awarded money damages, including both compensatory and punitive
B. That Plaintiff be awarded compensatory money damages against the City of Cleveland
D. That Plaintiff be awarded his costs in this action, including reasonable attorney fees under
E. Such other relief as this Court shall deem just and proper.
Respectfully submitted,
JURY DEMAND
Pursuant to FRCP 38 and other applicable law, Plaintiff demands trial by jury on all causes so
triable.
/s/ Christopher Wiest___________
Christopher Wiest (Ohio 0077931)
19
Case: 1:23-cv-01327-CEF Doc #: 1 Filed: 07/07/23 20 of 20. PageID #: 20