17.  On April 9, 2018, Attorney Brian Shrive filed a state court lawsuit against the City of  Cincinnati and five city council members alleging, in essence, that the council members violated the  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 5 of 13  PAGEID #: 5 6  Ohio Open Meetings Act by conducting city business via a group text message chain.  See State ex  rel. Miller v. Sittenfeld, Ham. Cty. Com. Pl. No. A1801834.   18.  After the lawsuit was filed, the City instructed the five council members to provide  their cell phones to an outside digital forensics firm, Binary Intelligence, for copying.  These cell  phones were all the private property of the council members and were not provided to them by the  City.  The council members all purchased their cell phones out of their own pockets and paid for  their monthly cell plans on their own not using any City funds.   19.  Acting upon advice from their attorneys, the council members provided their cell  phones to Binary Intelligence, which created full digital copies of all of the content on the phones for  the period from January 1, 2018 to October 23, 2018.   20.  Binary Intelligence downloaded all of the content from the council members’ phones,  including all of their text messages, emails, social media content, pictures, voicemails, call logs,  contacts, and apps for the period from January 1, 2018 to October 23, 2018.   21.  Upon information and belief, Binary Intelligence provided the City law department  with a digital copy of the cell phone downloads, but did not provide the council members themselves  with copies of the content from their private cell phones.  As a result, the council members do not  have specific knowledge as to what content was taken from their phones.   22.  Upon information and belief, the City law department maintains the digital copy of  the council members’ private cell phones.   23.  As part of the state court lawsuit, the City was instructed to provide text messages and  emails to Mr. Shrive that were between the council members, but not other private people.  The City  in fact provided those messages.  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 6 of 13  PAGEID #: 6 7   24.  After the state court lawsuit was resolved, Mr. Shrive issued a new public records  request to the City seeking additional content from the council members’ phones.  This new,  expanded request included communication from a whole host of private individuals to and with the  council members and was not limited to communication about City business.  Ironically, Mr.  Shrive’s public records request was for the exact dates of the content downloaded by Binary  Intelligence:  January 1, 2018 through October 23, 2018.   25.  Upon information and belief, the City law department reviewed the contents of the  cell phones provided to it by Binary Intelligence.  This review included text messages and emails  sent to and by the council members on topics having nothing to do with City business.   26.  Upon information and belief, the City law department provided text messages, emails,  social media messages, and other communication to Mr. Shrive in response to his public records  request that included John Doe 1, John Doe 2, and other private individuals’ private communication.   No one from the City sought John Doe 1 or John Doe 2’s consent before providing their private  communication to Mr. Shrive, nor did the City even provide notice to the John Does that it was in  possession of their communication.   27.  Upon information and belief, Mr. Shrive remains in possession of this  communication.   28.  Upon information and belief, Binary Intelligence also remains in possession of this  communication.   29.  John Doe 1 and John Doe 2 both communicated with council members during that  time period about a range of topics having nothing to do with official City business.  These topics  included purely social and friendly matters like parties, sporting events, and neighborhood  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 7 of 13  PAGEID #: 7 8  gatherings; matters of campaign strategy and political organizing protected by the First Amendment  right of association; and political commentary about other governmental entities and officials outside  the City of Cincinnati.     30.  John Doe 1 and John Doe 2 communicated with the council members using the  council members’ private cell phone numbers, private email accounts, and private, nongovernmental  social media accounts.  There was nothing about the manner in which John Doe 1 and John Doe 2  communicated that would have suggested to them or to anyone else that they were creating a public  record subject to seizure, review, and dissemination to the public by the City.   31.  Upon information and belief, hundreds of individuals’ private communication with  the council members remains in the possession of the City.  These people include doctors, lawyers,  teachers, spouses, parents, children, family members, neighbors, friends, and members of the  community at large, all of whom communicated with the council members not in their capacity as  government officials, but in their capacity as private citizens.   32.  The City had no probable cause to believe that John Doe 1, John Doe 2, and the  class’s communication with the council members constituted a crime or was evidence of any crime.   As such, the City had no basis for seizing the communication and has no basis for continuing to  maintain and review it.   33.  The fact that the City created and maintains digital copies of the council members’  phones is a matter of public record in the state court lawsuit.  As a result, the City is likely to face  additional public records requests for disclosure of communication from the phones, and each time  they do so they will review the private communication of John Doe 1, John Doe 2, and the class to  respond to the public records request.  The invasion of the class privacy rights is therefore ongoing  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 8 of 13  PAGEID #: 8 9  and potentially limitless.  So long as the City maintains the cell phone content, John Doe 1, John Doe  2, and the class is subject to privacy invasions and violations of their First, Fourth, and Fourteenth  Amendment civil rights.   34.  John Doe 1 and John Doe 2 are chilled in their ability to communicate with the  council members and other public officials for fear that their private expression will be seized,  cataloged, read, and released by the government.  35.  Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.   36.  Plaintiffs have a protected right to communicate anonymously, to communicate  privately, and to form political associations without interference by the government. These rights are  protected by the First Amendment free expression and free association provisions.   37.  The City of Cincinnati, acting in concert with Mr. Shrive and Binary Intelligence,  have violated Plaintiffs’ First Amendment rights by collecting their private communication without  cause or suspicion, maintaining their communication in the possession of the City law department,  reviewing their communication without consent, and spying on their political associations, all  without so much as providing notice or an opportunity to be heard.   38.  To remedy these First Amendment violations, Plaintiffs seek monetary damages for  this ongoing violation of their First Amendment rights, a declaration of unconstitutionality, and  injunctive relief prohibiting the City of Cincinnati, Mr. Shrive, and Binary Intelligence from  maintaining Plaintiffs’ private communication.  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 9 of 13  PAGEID #: 9 10  Claim Two:  Violation of Fourth Amendment Rights  (against the City of Cincinnati)   39.  Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.   40.  The Fourth Amendment protects individuals from warrantless searches and seizures  by the government that are not supported by probable cause.   41.  Here, the City of Cincinnati seized Plaintiffs’ private communication without  probable cause to believe that communication was evidence of or connected to a crime.  Even if the  council members violated the law by meeting outside the constraints of the Open Meetings Act or by  negligently deleting or destroying their communication with other council members, those activities  by necessity do not and did not involve private citizens like Plaintiffs.   42.  The City’s ongoing possession of Plaintiffs’ communication constitutes a daily,  renewing violation of Plaintiffs’ Fourth Amendment rights.   43.  To remedy these Fourth Amendment violations, Plaintiffs seek monetary damages for  this ongoing violation of their Fourth Amendment rights, a declaration of unconstitutionality, and  injunctive relief prohibiting the City of Cincinnati from maintaining Plaintiffs’ private  communication.  Claim Three:  Violation of Fourteenth Amendment Rights  (against the City of Cincinnati)   44.  Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.   45.  Plaintiffs maintain a property interest in their private communication.   46.  The City collected, copied, maintained, reviewed, and provided to the public  Plaintiffs’ private communication without providing notice to Plaintiffs or an opportunity to be  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 10 of 13  PAGEID #: 10 11  heard.  The City in essence made decisions about Plaintiffs’ protected expression without even so  much as consulting with Plaintiffs, much less providing them an opportunity to object, to seek legal  counsel, or to participate in the public records process.   47.  The City’s actions violate Plaintiffs’ procedural due process rights.   48.  In addition, the Fourteenth Amendment protects Plaintiffs’ substantive due process  rights, including the right of privacy and autonomy.  Plaintiffs have a protected substantive due  process rights in forming private relationships and in communicating privately within those  relationships.   49.  The City’s actions violate Plaintiffs’ substantive due process rights.   50.  To remedy these Fourteenth Amendment violations, Plaintiffs seek monetary damages  for this ongoing violation of their Fourteenth Amendment rights, a declaration of unconstitutionality,  and injunctive relief prohibiting the City of Cincinnati from maintaining Plaintiffs’ private  communication.  Claim Four:  Violation of the Ohio Constitution  (against the City of Cincinnati)   51.  Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.   52.  Plaintiffs plead each of the foregoing violations of the federal constitutional rights  under the analogous provisions of the Ohio Constitution.   Claim Five:  Invasion of Privacy  (against all Defendants)   53.  Plaintiffs reallege each of the foregoing paragraphs as if fully rewritten here.  Case: 1:19-cv-00475-MRB Doc #: 1 Filed: 06/24/19 Page: 11 of 13  PAGEID #: 11 12   54.  Defendants are in possession of private communication and information about and  belonging to Plaintiffs.  This information relates entirely to Plaintiffs’ private lives, including their  political associations, their friendships and relationships, their attitudes and beliefs, and their private  activities.   55.  Defendants disclosed this information publicly to their agents, employees, officials,  and to one another.  Upon information and belief, Defendant Shrive disclosed this information to  members of the news media.   56.  The seizure, downloading, review, recording, possession, and public dissemination of  Plaintiffs’ private information by the government and its cohorts would shock the sensibilities of and  would be highly objectionable to the average person.   57.  The public dissemination of Plaintiffs’ private information was intentional, not  accidental.   58.  Plaintiffs’ private communication is not a matter of legitimate public concern.   59.  To remedy the invasion of their privacy, Plaintiffs seek monetary damages and  injunctive relief prohibiting all Defendants from disseminating Plaintiffs’ private communication.  Claim One:  Violation of First Amendment Rights  (against the City of Cincinnati)  