FHKAD Attorneys Dan Downey and Paul Bernhart secured summary judgment in a police liability case, France v. Lucas , which was recently affirmed by the Sixth Circuit Court of Appeals. This marks the first time in the Sixth Circuit that the “sham affidavit doctrine” has been applied to a codefendant’s affidavit.
The Plaintiffs in this case, Lowestco Ballard and Geneva France, were separately arrested and charged with federal drug crimes as part of “Operation Turnaround,” a joint drug enforcement effort by the Richland County Sheriff’s Office and the United States Drug Enforcement Agency (DEA). The prosecutions followed Ballard and France allegedly selling drugs to law enforcement officials and a confidential informant, Jerry Bray. France and Ballard were both tried on federal drug charges resulting in a conviction for France and acquittal for Ballard.
After the conclusion of Operation Turnaround, Bray admitted to using friends as “stand-ins” for drug buys and intentionally misidentifying suspects, but testified that no law enforcement officers were involved in this wrongdoing. Both France and Ballard filed suit in federal court for civil rights violations against Bray, individual DEA and Richland County officers as well as the Richland County Sheriff’s Office arguing that law enforcement officials knew about and facilitated Bray’s fabrications.
FHKAD attorneys moved for summary judgment on the basis of qualified immunity. In opposing this motion, the Plaintiffs submitted an affidavit given by Bray asserting that law enforcement officers were involved in the fabrication. If considered by the Court, this affidavit would establish a material issue of fact and foreclose summary judgment in favor of the officers and sheriff’s office.
The District Court declined to consider the affidavit and awarded summary judgment. The decision was based on the “sham affidavit doctrine,” which stands for the proposition that statements submitted via affidavit contradicting prior sworn testimony of the affiant submitted after a motion for summary judgment cannot be considered to defeat the motion. This doctrine has been applied to statements by an opposing party but has never before been used to exclude contradictory affidavits of a codefendant in this circuit.
The Plaintiffs appealed to the Sixth Circuit, which affirmed the decision in favor of the Richland County Sherriff’s Office and its individual officers. If you have any questions regarding this matter, feel free to contact FHKAD Attorneys Dan Downey (ddowney@fishelhass.com) or Paul Bernhart (pbernhart@fishelhass.com).