{¶ 51} I must respectfully dissent from the majority's disposition of the second and third assignments of error. In my view, the trial court properly directed the verdict because appellants did not prove that the City of Cleveland's failure to train its police officers was the result of deliberate indifference to appellants' first amendment rights. Therefore, I would affirm the judgment below. *Page 699
{¶ 52} There is little doubt that the burning of the effigy of the Cleveland Indians' mascot, "Chief Wahoo,"30 was expressive conduct protected by the first amendment, and that appellants' arrest without probable cause to believe a crime was being committed deprived them of their first amendment rights. In order to hold the city liable for this deprivation, however, appellants had to prove not only a violation of their constitutional rights, but also that the violation was the result of a custom or policy of the city. Monell v. New York City Dept. Of Soc.Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018. Appellants claim that the city's failure to train its police officers in how to handle "ritual burnings" demonstrated the city's deliberate indifference to the first amendment rights of its citizens, thus proving that the constitutional deprivation was the result of a city policy. Canton v.Harris (1989), 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197. In this case, however, failure to train did not show deliberate indifference.
{¶ 53} "Deliberate indifference" is a stringent standard which requires proof that the municipality disregarded a known or obviousrisk. Board of County Commrs. v. Brown (1997), 520 U.S. 397, 410,137 L. Ed. 2d 626, 117 S. Ct. 1382. The Supreme Court has held that there are two ways to demonstrate deliberate indifference through proof of inadequate police training. First, repeated constitutional violations in the past may demonstrate such a need for training that the municipality's failure to provide it shows a conscious disregard for the rights of its citizens. Canton, 489 U.S. at 390. Alternatively, if there is an obvious potential for constitutional violations in recurring situations, the city's failure to provide training to avoid that potential can be said to be deliberately indifferent to the need. Id.
{¶ 54} The evidence in this case showed that effigy-burning incidents occurred in the past and that police officers had received no training in how to handle such incidents. These facts alone do not demonstrate that the city was deliberately indifferent to the constitutional rights of its citizens. To satisfy this branch of theCanton analysis, there must evidence that constitutional violations occurred during the prior incidents so that the city knew that training was required. There was no such evidence here.31
{¶ 55} Nor was the alternative branch of the Canton analysis met. The effigy-burning situation does not present such an obvious potential for violation of *Page 700 constitutional rights that the city's failure to recognize a need for training amounted to deliberate indifference. A high degree of predictability is essential to this branch of the Canton analysis: "The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights could justify a finding that policymakers' decision not to train the officers reflected `deliberate indifference' to the obvious consequence of the policymaker's choice — namely, a violation of a specific constitutional or statutory right." Brown, 520 U.S. at 409. I simply do not see any obvious likelihood that police will violate citizens' first amendment rights if they are not specially trained in the handling of effigy-burnings.
{¶ 56} In my view, appellants did not present any evidence that the city's failure to train its police officers demonstrated a deliberate indifference to the constitutional rights of its citizens. Accordingly, I would affirm the trial court's judgment for the city on appellants' claims.
{¶ 57} I would further hold that the trial court order granting the city's motion in limine and excluding evidence of appellants' prior prosecution is a moot issue. In its cross-examination of appellant Bellecourt, the city opened the door to testimony about the prior prosecution of appellants. As a result, the prior prosecution was thoroughly explored on re-direct and re-cross examination. Therefore, the purported exclusion of this testimony does not justify retrial.
{¶ 58} I agree with the majority that we should not consider appellants' challenge to the order granting summary judgment to defendant Regetz, but I do not agree that we lack jurisdiction to address this question. The only jurisdictional aspect of the notice of appeal is the timing; the content can be amended within the discretion of the court of appeals and upon such terms as the court deemed just. App.R. 3(A) (E). Nonetheless, appellants did not designate this order in their notice of appeal or in any motion to amend the notice, and thus failed to apprise the defendants that they were appealing from the summary judgment. See App.R. 3(D); Transamerica Ins. Co. v. Nolan (1995),72 Ohio St. 3d 320, 324; Maritime Mfrs., Inc. v. Hi-Skipper Marina (1982), 70 Ohio St. 2d 257. This argument involves a different defendant, a different substantive issue, and a different procedural point in the case than the order actually designated in the notice of appeal. Therefore, it would be unfair to allow appellants to argue the issue now.
{¶ 59} Finally, I agree that we lack jurisdiction to disqualify a trial judge and therefore cannot address the issue raised in appellants' fourth assignment of error.
{¶ 60} Accordingly, I concur and dissent.
30 The caricature of Chief Wahoo is at best insensitive, at worst, vile. I am optimistic that a new mascot will be made part of the Indians' effort to rebuild its team, allowing for the retirement of this inappropriate symbol of a by-gone era.
31 The fact that the charges resulting from the prior incident were dismissed on a Rule 29 motion does not even suggest that a constitutional violation occurred. *Page 701