The Akron Legal News

6th Circuit rejects man's appeal of arrest by private police officers

KEITH ARNOLD
Special to the Legal News
Published: September 23, 2011

A Cincinnati federal appeals panel upheld the U.S. District Court’s grant of summary judgment to a railroad company relative to an individual’s complaint against a pair of the company’s private police officers.

The three-judge panel of the 6th Circuit Court of Appeal reasoned that CSX Transportation Inc. police officers Jim Dugger and Chris Minges did not violate Thomas Nerswick’s constitutional rights, thereby defeating a failure-to-train claim against the company.

“... Without a wrongful act by its agent, CSXT cannot be vicariously liable to Nerswick under state law,” 6th Circuit Judge Raymond Kethledge wrote for the court.

According to case summary, Nerswick removed two large pieces of metal from the road “in the interests of traffic safety” after learning on June 9, 2006 the materials had fallen off a truck on the road outside his business. He subsequently sold them to Garden Street Iron & Metals, a nearby recycling center, for $310.

Garden Street contacted CSXT employee R.W. Godbey to report that it had purchased two aluminum pieces that appeared to be CSXT rerailers, an aluminum device used by a railroad to place derailed cars back on the tracks, summary continued.

Another CSXT employee, T.J. Grace, then contacted officers Dugger and Minges and reported that two rerailers had been stolen from the railroad and recently sold to Garden Street. That same day, Dugger, Minges, and Godbey visited Garden Street. There, Godbey identified the rerailers as CSXT property.

Dave Holbrook, the Garden Street employee who had purchased the rerailers from Nerswick, provided the officers with a copy of Nerswick’s driver’s license and showed them a video (without audio) of the transaction.

According to Holbrook, he had suspected that the rerailers were railroad property, so he told Nerswick of that possibility and obtained a copy of Nerswick’s identification before purchasing them. Holbrook also told the officers that Nerswick said he had taken the aluminum “from a building he owned.”

The officers sought a warrant for Nerswick’s arrest June 12, 2006 on a charge of receiving stolen property, summary detailed. To obtain the warrant, Dugger signed an affidavit stating that Nerswick had sold CSXT rerailers to Garden Street without the railroad’s permission and that the same rerailers had been reported stolen by Grace.

Dugger also submitted a criminal complaint to the Hamilton County Municipal Court deputy clerk, stating that, based on witness statements and “personal observations of video tapes,” Nerswick had sold CSXT property that Nerswick had reason to believe was stolen. The deputy clerk signed the warrant.

The officers met Nerswick and his brother James, an officer with the Ohio Department of Public Safety, outside Nerswick’s office June 13, 2006. Nerswick asserted his innocence, but the officers arrested him and took him to the CSXT police building, summary continued. There, they questioned Nerswick for more than two hours. The man’s brother was present throughout the questioning.

Dugger and Minges then handcuffed Nerswick and transported him to the Hamilton County Justice Center. A Hamilton County Municipal Court judge, the next day, found sufficient probable cause to hold over Nerswick for a grand jury to consider the charge. The grand jury, however, declined to indict Nerswick on June 26, 2006.

Nerswick then brought this lawsuit, raising claims that the officers arrested him without probable cause and then took too long to present him to a magistrate.

The district court granted the defendants’ motion for summary judgment on the basis that Nerswick’s evidence failed to raise a genuine issue of material fact on his claims.

In consideration of the man’s claim that the two-hour time span between arrest and transport to the court, the court found that the cases Nerswick cited involved “a much greater delay between arrest and presentation than the one he experienced” — one for seven days, another for five days and the final for six days.

“We see no basis to hold that the two-hour delay here was unlawful,” Kethledge concluded.

Senior Judge Martha Craig Daughtrey and fellow 6th Circuit Judge Deborah Cook joined Kethledge to form the majority.

The case is Nerswick v. CSX Transportation, Inc., case No. 10-3328.

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