John Petsche, who served on the Brecksville City Council, was prosecuted after voting on municipal measures that benefited a police station construction project where his roofing company served as subcontractor. Petsche alleged that Mayor Jerry Hruby and Law Director David Matty filed false reports with the Ohio Ethics Commission in retaliation for his criticism of how the council handled payment of an unrelated $680,000 debt. Though Petsche was indicted on four counts of unlawful interest in a public contract, he was acquitted after a bench trial in March 2022.
The Sixth Circuit upheld summary judgment for all defendants, finding Petsche couldn't rebut the probable cause presumption created by his grand jury indictment. Judge Ronald Lee Gilman wrote that while Petsche argued officials 'deliberately withheld' knowledge of his business interest, he 'plainly failed' to meet Ohio's affirmative defense requirements because he voted on ordinances advancing the project. 'Petsche therefore has no basis to rely on the affirmative defense,' the court stated.
The district court had granted defendants' summary judgment motion on all Section 1983 claims, including retaliatory prosecution, malicious prosecution, and fabrication of evidence. Petsche appealed only the retaliatory prosecution and malicious prosecution claims. He had argued that officials' communications to the ethics commission constituted 'deliberate suppression' of their knowledge about his roofing company ownership.
The ruling limits municipal liability for retaliatory prosecution claims, distinguishing this case from the Supreme Court's 2018 Lozman decision that allowed certain retaliation claims despite probable cause. The court emphasized that Lozman involved 'smoking gun' evidence of an official retaliation policy, while Petsche 'has proffered no comparable evidence.' The decision reinforces the high bar for overcoming prosecutorial presumptions of regularity in retaliation cases.