Have faulty lawyering and stingy judging left two victims of discrimination without a remedy?

Ondo v. City of Cleveland, No. 14-3527 (6th Cir. Aug. 3, 2015).

Steven Ondo and Jonathan Simcox, a gay couple, got into a loud argument outside their apartment building. Later that night, they were arrested. They spent two nights in jail.

Then, about a week later, a ten-man SWAT team arrested them on charges of assaulting a police officer during the earlier arrest. Ondo and Simcox allege that, after putting the couple in handcuffs, the police punched them in the face, treated them to a barrage of anti-gay slurs, and forced them to go to jail in their underwear. A jury later acquitted Ondo and Simcox of all criminal charges.  

Ondo and Simcox sued Cleveland, alleging, among other things, violations of the Fourth Amendment (excessive force) and the Fourteenth Amendment (anti-gay discrimination). 

The Sixth Circuit holds that the district court properly struck Ondo and Simcox’s affidavits because they were made “on personal information and belief,” rather than “on personal knowledge,” as Rule 56 requires. Without those affidavits, the court holds, there’s no genuine issue of fact to support the plaintiffs’ claims, so the summary judgment in favor of the defendants is affirmed.

This case may be the product of faulty lawyering and stingy judging. Ondo and Simcox’s lawyer shouldn’t have submitted affidavits made on personal information and belief, and the district court, it seems to me, shouldn’t have struck them without first giving Ondo and Simcox an opportunity to correct the problem and submit proper affidavits. 

The Sixth Circuit also seems maybe a little too eager to close the courthouse doors on the plaintiffs. To support the district court’s striking of the affidavits, for example, the Sixth Circuit says that some of the plaintiffs’ assertions are contradicted by their mug shots, which show no sign of injury or abuse. That seems to ignore the possibility that the police officers’ assaults left no physical marks, or that the marks hadn’t developed by the time the mug shots were taken. Another example: In a footnote, the Sixth Circuit suggests that if officers use increased force to arrest a gay person because he is gay, that arrest can’t violate the Fourteenth Amendment—it can only violate the Fourth. Really? Suppose a homophobic officer arrests two friends, knowing one is straight and the other gay. Both friends react to the arrest in the same way. If that officer uses more force against the gay arrestee merely because he’s gay, that can never violate the Fourteenth Amendment as long as the force isn’t excessive under the Fourth Amendment? That seems wrong. If the Fourteenth Amendment forbids anything, it forbids the government from treating people differently, based on nothing more than animus.