In September 2005, Cleveland police officers Habeeb and Kraynik shot and killed 15-year-old Brandon McCloud. The shooting spawned a great deal of public outrage and criticism. Shirley Smith, then a state representative from Cleveland, sent a letter a few days later to the Cleveland Safety Director and cc’ing several other city officials criticizing the actions of Officers Habeeb and Kraynik. The shooting was investigated by various government authorities, all of whom found no wrongdoing by the officers. Habeeb and Kraynik later filed a lawsuit against the House of Representatives in the Court of Claims seeking a determination as to whether Smith was immune as well as a defamation suit against Smith personally for her letter.

Legal Theory

This is a classic SLAPP suit (“Strategic Lawsuit Against Public Participation”), brought for the purpose of intimidating speakers to cease commenting about a particular subject and discouraging public dissemination of alternative views. It is believed that Habeeb and Kraynik want to stifle public criticism of their actions and other actions of Cleveland police. This SLAPP suit could impact not only one person, but other police watchdogs as well.

Status Update

Habeeb and Kraynik filed suit against Smith in her personal capacity. Because the House of Representatives was sued, the case first went to the Court of Claims to decide whether Smith had immunity from suit as a government official. The Court of Claims determined that Smith was not acting in her official capacity when she sent the letter, so she was not immune from suit. The case in the Court of Common Pleas was stayed pending resolution of the Court of Claims suit. On Dec. 21, 2010, Plaintiffs Habeeb and Kraynik filed a motion for partial summary judgment, arguing that the Common Pleas Court should adopt findings made by the Court of Claims. We filed a brief in opposition on Feb. 11, 2011, and Plaintiffs filed a reply March 7th. On June 24, 2011, the Common Pleas Court denied Plaintiffs’ motion for partial summary judgment, holding that the Court of Claims decision was on the issue of immunity not on the issue of defamation, which involves different legal standards. Discovery is underway. A pretrial was held September 12, 2011 at which the judge and parties discussed discovery disputes arising from Plaintiffs’ resistance to some discovery requests. The court ruled on two of the disputes and instructed Defendant to file a motion to compel regarding a third matter, on which the court wanted briefing. The court also granted Defendant leave to file a motion for summary judgment, which is due November 4, 2011. A final pretrial is scheduled for March 6, 2012 and trial for April 16, 2012. On November 10, 2011, both parties filed a joint motion to extend the time to file a motion for summary judgment, due to outstanding discovery issues.

On November 23, 2011, Plaintiff subpoenaed the City of Cleveland to retrieve the psychiatric records for Habeeb and Kraynik. On December 14, 2011 we filed a motion to again extend the deadline for filing summary judgment motions. The court held a hearing on January 26, 2012 to decide whether there is cause to hold the city in contempt and to discuss further scheduling matters. However, the City complied with the discovery order and provided us with Plaintiffs’ psychiatric records. Kraynick’s deposition was completed on March 2, 2012. Our trial brief was filed on April 10, 2012. On April 18, 2012 the Plaintiffs filed a notice of voluntary dismissal. Court costs were assessed to the Plaintiffs. Pursuant to Civil Rule 41(A), the case was voluntarily dismissed without prejudice on April 24, 2012 . The period for re-filing expired on April 18, 2013. The case is now closed and Plaintiffs are precluded from re-filing.

Date filed

August 30, 2006