Federal lawsuit filed against Cleveland Heights police for harassing open carrier

[Citizen]

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JoeSparky wrote:

Mike wrote:

okboomer wrote:

Their premise from what I heard on the video was that he had a gun in plain sight ... their argument will probably be that they "didn't know" if he was a criminal or not.

So what - police don't get to check people out just to see if they are criminals.

SNIP Same principle that prohibits officers from stopping ANY driver they see to check if said driver has a license to operated a motor-vehicle!

So, you can't stop ANY gun carrier you see just to determine if he is a criminal!

Yes. Its called the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


In case anybody is a little shaky on their certainty about whether police can just up and stop someone "because he might be a criminal" here is a quote from the very US Supreme Court case that police use to detain someone they suspect of being a criminal--Terry vs Ohio.

No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Read that quote carefully two or three times looking at the meaning of each word.

The Terry court was actually quoting an earlier US Supreme Ct. case, Union Pacific Rail Co. vs Botsford. The Terry court could have watered down the concept. They could have made up their own phrasing. But, no. They chose that exact quote. And there it sits right in the very opinion that laysthe groundwork for reasonable suspicion and from which police derive legal authority to detain, short of arrest, people they suspect of crime.

This is one of the reasons I raise a fuss over illegal detentions, even comparatively minor ones. And why I advocate a formal written complaint, at a minimum.

No right. Held more sacred. More carefully guarded. Free from all restraint or interference...unless by clear and unquestionable authority of law.

 

[UtahJarhead]

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OP, good luck! I wish you well. The larger a verdict, the larger the news it may make. The more news it makes, the more PD will see it! The more PD that see it, the more they'll think twice before harassing OC'ers.

 

[freedom_fighter777@hotmail.com]

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Judge Dan Aaron Polster was assigned to my case with potential Magistrate Judge William H. Baughman.

[url]http://judgepedia.org/index.php/Dan_Polster[/url]

http://judgepedia.org/index.php/William_Baughman

 

[Jonesy]

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okboomer wrote:

As I am not a lawyer, but a Private Investigator/Security Guard, I did have to learn the state and federal laws governing arrest and handcuffing.

If you will look closely, he is suing the Police officers individually as Plaintiffs "John Doe 1-5", the City Manager by name, and the Chief of Police by name.

And as I read the wording, he is suing "in excess of $150,000.00" on each complaint

As for suing for monetary damages, if it comes out of the City and Police department, then they are in a budget crisis and you had better believe that there will be major efforts to remedy this issue.

After listening to the video (audio), it seems to me that the city is going to have to answer for the wrong information that the officers stated and then for their attitude about violating his civil rights. This is an egregious breech of civil rights based on their ignorance of the law. And ignorance of the law is not a defense.

I do agree that the lawyer's use of the first amendment statement could be distracting, but it supports the violation of civil rights, which is one of the mainstays of the suit.

I sure hope someone has sent a link to this video to the Ohio Attorney General. The officer's statement probably won't go over very well in the AG's office.

As for the talking you did, I disagree that you "talked too much" in this case. You probably did have to notify them that they were being recorded. (I loved their statements about that!) Then, trying to get them to tell you why they were detaining you was a good move. It shows that either the law in Ohio needs to be more specific about LEO/OC contacts, or the blatent disregard by the officers of state law. And their statements concerning why they were detaining you only holds water if that area is a "hotbed" of gun use. This might be something to bring up with your lawyer. Did they have a reasonable belief that you might be a bad guy due to other criminal activity in that neighborhood. It will come down to a litmus test of whether the officers had a reasonable belief of whether or not you were a bad guy and whether their or the public's safety was endangered.

After having been involved in a couple of legal matters, I would like to bringa couple of issues to your attention that I found in the past:

1. Your lawyer needs to anticipate the respondents areas of attack/defense

2. The handcuffing is a non-issue, the "get on the ground" is probably going to be a non-issue - both of these are covered under "officer safety" - Levin v City of New York and Martin v Swift

3. The pat down and search are also probably non-issues - Terry v Ohio and Chemel v California

4. Your civil rights were violated when the officers didn't know the law, not that they stopped you, handcuffed you and searched you (hence the wording of the charges).

5. I do believe the assault and battery did occur when they demonstrated that they didn't know the law and proceeded "under the color of law" to verbally assault you and I believe they battered you also "under the color of law"

I think you will be lucky if you get anything out of this at all. You were not arrested. Has there been a show-cause hearing? You probably won't get past that.

Good luck and I hope this does go further.

I think your analysis is horrible. He has a strong case. And if you think police can legally handcuff you withoutRAS or reasonable cause, you need to do a little more reading on the law. Here is a good place to start:
http://opencarry.mywowbb.com/attachment.php?id=7856

 

[okboomer]

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Jonesy wrote:

I think your analysis is horrible. He has a strong case. And if you think police can legally handcuff you withoutRAS or reasonable cause, you need to do a little more reading on the law. Here is a good place to start:
http://opencarry.mywowbb.com/attachment.php?id=7856

I lived in Cincinnati for 10 years and saw the way Ohio courts support the police in questionable actions.

http://brownwatch.squarespace.com/

http://freedomjournaltv.tripod.com/id17.html

I didn't say that I agreed with what I believe the DA will use as a defense of the position the officers have now placed him in ... only that I have seen these *defenses* used in the past in Ohio.

okboomer wrote:

This is an egregious breech of civil rights based on their ignorance of the law.

As you can see, I believe what the OP is setting forth in his claim. I thought this topic was a discussion of what happened and the case the OP filed in civil court. As I have had a run-in somewhat similar, I thought my opinion might have some value. Evidently not.

In my run-in with the local yokels, I had to get a judge's order to get my gun back from the police, and had to practically corner the detective in his office to get him to *have time* to return my weapon.

 

[Jonesy]

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okboomer wrote:

Jonesy wrote:

I think your analysis is horrible. He has a strong case. And if you think police can legally handcuff you withoutRAS or reasonable cause, you need to do a little more reading on the law. Here is a good place to start:
http://opencarry.mywowbb.com/attachment.php?id=7856

I lived in Cincinnati for 10 years and saw the way Ohio courts support the police in questionable actions.

http://brownwatch.squarespace.com/

http://freedomjournaltv.tripod.com/id17.html

I didn't say that I agreed with what I believe the DA will use as a defense of the position the officers have now placed him in ... only that I have seen these *defenses* used in the past in Ohio.

okboomer wrote:

This is an egregious breech of civil rights based on their ignorance of the law.

As you can see, I believe what the OP is setting forth in his claim. I thought this topic was a discussion of what happened and the case the OP filed in civil court. As I have had a run-in somewhat similar, I thought my opinion might have some value. Evidently not.

In my run-in with the local yokels, I had to get a judge's order to get my gun back from the police, and had to practically corner the detective in his office to get him to *have time* to return my weapon.

Don't take it personal if people disagree with you. Police in Ohio have been abusing this area of the law for along time. If you listen to the tape, these officers are ignorant of the law, thinking they can stop someone at gunpoint, detain and cuff them because they are not sure if he has a license to carry, etc. Notice that he sued in federal court, did you check out the federal court decision I linked to above?

I understand that you also do not like this police activity but your comments almost indicated that you believed it was legal to detain and cuff this gentleman who apparently did nothing wrong, and I understand that you may have been told such is legal. Excuse me if I was rude.

If the officers are unable to present facts creating reasonable suspicion that he was breaking the law the state is likely to lose this case big time. No one here (at least me) was trying to attack you personally.

 

[okboomer]

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okboomer wrote:

After having been involved in a couple of legal matters, I would like to bringa couple of issues to your attention that I found in the past:

I didn't say anything about the issues I raised being right or not, I simply stated that I had found these issues (brought up by the ADA that I went up against) in the past.

The ADA made the insinuation that due to the gun being present, handcuffing and placing face down on the ground was entirely in keeping with the "officer safety" issue. And that seizing my gun was "in keeping" with public safety. Even though no one could even claim that I had brandished the weapon, nor had they seen the weapon.

The judge agreed and dismissed my motion. In District Court.

The other issue we addressed in my motion was that if there was no specific state law governing a situation, then federal case law should govern, but the judge said no to that, as this was an "internal" state issue, not an issue governed by federal law. My attorney almost had a heart attack right there in the court room!!!

I did, however prevail in the end, and the ADA had to drop allthe charges. So in the end, it was somewhat a Phyrric victory for me.

In the civil matter, I had two state investigators (not local)get on the stand and lie throught their teeth, and then my attorney proved they lied (on more than one point)and the state attorney should have known, but state attorney was not chastised for submitting false testimoney, and the judge (called something else in a civil matter) did consider the rest of the investigators' testimony.

The OP is NOT up against the law, here, he is up against the "no one but a cop should have a gun" attitude. I my experience, the legal system is a dangerous place and the law can be twisted to meet particular agendas. New Mexico notwithstanding, it comes down to how the DA and the Judge interpret the law.

And you had better believe that anyone who ever had anything bad to say about the OP will be contacted and anything will be brought up. If he is a member of a shooting/gun club, regular range practice, ever get fired from a job, ever seen a counselor for any mental health issues (including marriage counseling). They are going to try to make the OP out to be either a) a vigilante, b) a nut job, or c) a danger to others for OC.

If the DA is anti-gun and he can win, then the Ohio anti-gun lobby can use this case to scale back the law in the next election.

I wish the OP all the luck in the world, but this situation shows the indefensible position of the local police and will be a "bad thing" if the OP wins. The cops end up looking like the idiots they were, the Chief of Police is shown to not provide the training to his officers, and the City looks like out-of-control good-ol-boys running the town however they want.

As far as "we" are concerned, the only thing they did "wrong" was in not arresting the OP. As far as the DA is concerned, the only thing the police did "right" was in not arresting the OP. Now, he has a lawsuit he "has" to win so as to not provide the gun lobby with more "ammunition" to get additional lawsuits ajudicated against the state/township.

Jonesy, it wasn't you in particular that I was speaking to, rather it was the overall dismissive attitude in this thread. I raised what I thought were valid concerns.

And, no, I don't believe that stopping, handcuffing, and running a background check are "ok" but having been on the receiving end of similar police behavior, I wanted the OP to be aware of the issues I had to overcome.

 

[Jonesy]

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okboomer wrote:

okboomer wrote:

After having been involved in a couple of legal matters, I would like to bringa couple of issues to your attention that I found in the past:

I didn't say anything about the issues I raised being right or not, I simply stated that I had found these issues (brought up by the ADA that I went up against) in the past.

The ADA made the insinuation that due to the gun being present, handcuffing and placing face down on the ground was entirely in keeping with the "officer safety" issue. And that seizing my gun was "in keeping" with public safety. Even though no one could even claim that I had brandished the weapon, nor had they seen the weapon.

The judge agreed and dismissed my motion. In District Court.

The other issue we addressed in my motion was that if there was no specific state law governing a situation, then federal case law should govern, but the judge said no to that, as this was an "internal" state issue, not an issue governed by federal law. My attorney almost had a heart attack right there in the court room!!!

I did, however prevail in the end, and the ADA had to drop allthe charges. So in the end, it was somewhat a Phyrric victory for me.

In the civil matter, I had two state investigators (not local)get on the stand and lie throught their teeth, and then my attorney proved they lied (on more than one point)and the state attorney should have known, but state attorney was not chastised for submitting false testimoney, and the judge (called something else in a civil matter) did consider the rest of the investigators' testimony.

The OP is NOT up against the law, here, he is up against the "no one but a cop should have a gun" attitude. I my experience, the legal system is a dangerous place and the law can be twisted to meet particular agendas. New Mexico notwithstanding, it comes down to how the DA and the Judge interpret the law.

And you had better believe that anyone who ever had anything bad to say about the OP will be contacted and anything will be brought up. If he is a member of a shooting/gun club, regular range practice, ever get fired from a job, ever seen a counselor for any mental health issues (including marriage counseling). They are going to try to make the OP out to be either a) a vigilante, b) a nut job, or c) a danger to others for OC.

If the DA is anti-gun and he can win, then the Ohio anti-gun lobby can use this case to scale back the law in the next election.

I wish the OP all the luck in the world, but this situation shows the indefensible position of the local police and will be a "bad thing" if the OP wins. The cops end up looking like the idiots they were, the Chief of Police is shown to not provide the training to his officers, and the City looks like out-of-control good-ol-boys running the town however they want.

As far as "we" are concerned, the only thing they did "wrong" was in not arresting the OP. As far as the DA is concerned, the only thing the police did "right" was in not arresting the OP. Now, he has a lawsuit he "has" to win so as to not provide the gun lobby with more "ammunition" to get additional lawsuits ajudicated against the state/township.

Jonesy, it wasn't you in particular that I was speaking to, rather it was the overall dismissive attitude in this thread. I raised what I thought were valid concerns.

And, no, I don't believe that stopping, handcuffing, and running a background check are "ok" but having been on the receiving end of similar police behavior, I wanted the OP to be aware of the issues I had to overcome.

Wow, I was unaware of your previous legal situation. Sounds like your judge didn't give you that great of a result. You were in state court, right?

Hmmm, makes me feel lucky living inNorthern Virginia, the police here are well trained to leave OCers alone, they learned the hard way years ago. I guess my comments are evidence that I am spoiled as compared to those living in other areas.

 

[okboomer]

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That's why I went and got the certificates and training I now have. I have more certified training than most of the police and sheriffs around me, and I am a better shot than most of them!

It was even worse than above, the ADA implied that I was a "loose cannon" and a "danger to the public" with no evidence or supporting documentation whatsoever. Yes, it was in a state district court.

I have lived in this community for a couple of decades with NO contact with law enforcement during that time whatsoever. Until a couple of years ago when this all started.

But then I got crossways with a local ADA, the police went around town to businesses I dealt with and tried to start rumors about me. I have one business owner on tape discussing it with me. I have another person on tape who talked about a conversation he had with a deputy sheriff in which the rumor was discussed. My business partners were harrassed. One time, it happened in front of their attorney.

The police went to tenants and tried to get them to file false charges on me. I was lucky in that one of the detectives was friendly with me and helped me as he could.

 

[JSlack7851]

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My self and all other well wishers are here supporting you Joe. I have walked with Joe 3 times in the past year. Lastly, Cleveland, Ohio.

Joe requently Open Carries, its not unusual at all. Its always in his head to exercise his God given right to self defense, educate the public, and make this State a better place to live. What better day than the Fourth of July? The day his rights were trampled, by uneducated thugs with badges? Any of you that Open Carry know this could of happened to any of us, in any State. We all know this needs to be done. Just imagine if you would of been stopped, humiliated, ordered to the ground at gunpoint. Maybe arrested for some BS trumped up charge?

We all need to pitch in and help stop this abuse, now and in the future. Don't make him do this all by himself. He is not alone. Thank You.

http://sueclevelandheights.chipin.com/open-carry-lawsuit-against-cleveland-heights-police

 

[Capn Camo]

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" If you are interested in making a donation to this lawsuit I have provided a link below.

http://sueclevelandheights.chipin.com/o ... hts-police

Any donations exceeding the legal fees in this case will be donated to the Gun Owners of America. Or you can send a donation privately via paypal to: freedom_fighter777@hotmail.com"

WOULD consider doing so, but not behind THAT smokescreen. With disclosure of how much is needed, how much is collected and promise to REFUND the excess, we can talk about it. WILL NOT through some second or third party WEBSITE.

Two things about their "Ordinance"

1.) There is a Caveat in the first paragraph... "with a card"

Does that mean Drivers license or other State issued ID? dont want Illegals running around with weapons.

2.) the problem with "must be unloaded in the car in a wrapper" is that this totally deprives one of ones Constitutional right to bear arms. A firearm in that condition is USELESS.

 

[aadvark]

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The City of Clevelands Heights Local Ordinance violates State Preemption of Firearm regulation throughout Ohio. In as much as it does, it is not only Unconstitutional but also unenforceable.

Maybe perhaps the City of Cleveland Heights needs to be reminded of Ohio Law in much the same manner as did The City of Lima, Ohio.

In fact, most of The City of Cleveland Hieghts Firearms Ordinances are in direct violation of Ohio State Preemption concerning Firearm Law. I believe that, I alone, counted up to 10 different Local Ordinances that held no Legal weight on their books alone, and, moreover, there very well could be many more.

All ofClevelands HeightsOrdinaces are on a website called ConwayGreene.com.

 

[Makarov]

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Sounds like Cleveland Heights needs a big Open Carry walk by the police station

 

[Superlite27]

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Any updates?

What's happening with this case?

 

[freedom_fighter777@hotmail.com]

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The case was settled for an undisclosed amount provided they institute an educational policy training their law enforcement officials on Ohio Firearm laws (including 9.68.) I wish I could have taken the case all the way to the Supreme Court and make case law, but I did not have the financial resources to do so. I would like to thank the 3 people that donated to my case. It should be noted that the officers involved were Officer Theodis Porter (Unit# 1761) and Officers Falisa Berry (Investigator with 16 years experience with Cleveland Heights Police Department) and Officer Hood (Unit #1169)

 

[Eeyore]

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freedom_fighter777@hotmail.com wrote:

The case was settled for an undisclosed amount provided they institute an educational policy training their law enforcement officials on Ohio Firearm laws (including 9.68.) I wish I could have taken the case all the way to the Ohio Supreme Court and make case law, but I did not have the financial resources to do so.

Congratulations! :celebrate

You won a battle--don't feel bad about not winning the entire war. If people keep winning battles, eventually the war will be won.

 

[color of law]

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Eeyore wrote:

freedom_fighter777@hotmail.com wrote:

The case was settled for an undisclosed amount provided they institute an educational policy training their law enforcement officials on Ohio Firearm laws (including 9.68.) I wish I could have taken the case all the way to the Ohio Supreme Court and make case law, but I did not have the financial resources to do so.

Congratulations! :celebrate

You won a battle--don't feel bad about not winning the entire war. If people keep winning battles, eventually the war will be won.

I don't believe it is undisclosed. A Freedom of Information request would disclose such settlement. Also, your case was a federal case. Federal cases don't go to the state Supreme Court for a final appeal.

congrats!!!!!