Ohio man files $3M lawsuit after being harrassed for legally OCing

[c.a.willard]

From reading the article Dave S posted I also see that they conducted a search of his vehicle.  I am curious as to others thoughts on this.  I myself am still trying to make up my mind on legality of the vehicle search.  Arizona v Gant pretty much sets the rules for a vehicle search incident to arrest. 

 

 The Supreme Court held that police may search the passenger compartment of a vehicle, incident to a recent occupant's arrest (and therefore without a warrant) only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.

 

He obviously did not have access at the time of the search and since his arrest was for obstruction of justice i'm not sure what evidence of the offense the officers could reasonably expect to be in the vehicle.  According to the police the search was to determine if he was under any disability (basically a prohibited person) so they have already basically said the search of the vehicle was to look for evidence of an offense that the suspect was not arrested for. 

 

My thoughts is that this is a violation of his rights and does not meet the requirements set forth in gant for a search incident to arrest.  There was no danger to the public and no risk of evidence being destroyed so in my opinion no exigent circumstances that would allow a warrantless search of his vehicle.

 

Separate of this im not sure you can really call it a lie if you ask if he has ID with him and he says no when the ID is in his car 50 feet away.  It becomes subjective on what you view as with you.  For example (this is a bit of a stretch for many)  you go into a properly posted business(Stretch 1) and leave your gun in the car(stretch 2).  you are approximately 50 feet away from your vehicle.  Do you have your gun with you?

Edited May 18, 2013 by c.a.willard

[monkeylizard]

Good point about the vehicle search. Taken together with the Chief's comments, I'm finding myself more and more in the camp of "I hope he wins". $3.6m is a bit excessive, but a win of any kind would be nice to see.

[RobertNashville]

This story is about ONE thing...a mere "civilian" seen with a gun. Oh my got...that man has a gun so he MUST be a criminal....that's what the person who called 911 thought and that's what these LEOs thought as well. Walking down the street openly carrying a firearm is NOT a crime NOR does it provide a reasonable suspicion that the mane just committed, is committing or about to commit a crime.

 

I don't buy the "they had an obligation to investigate" line of "reasoning" here.  Based on that line of reasoning a LEO would have to do a vehicle stop and investigate someone just because someone called 911 and said they saw someone driving by a school yard and that the citizen "thought" "looked mean" or "looked like a child molester".

 

Ware are (supposed) to be protected against UNREASONABLE search and seizure; this stop was unreasonable and if the cops had a "duty to investigate" then they should have hassled the person that called 911 just because he saw a man with a gun and wet his pants (or panties).

 

I hope this guy wins some money....not a lot because I still think he was an idiot...but enough to catch the attention of at least that police department.

 

[DaveTN]

According to the story I read no one called 911. A citizen stopped a Police Officer and said he thought the person was suspicious. That means the cops are going to act; or should. We have absolutely no idea what that conversation was. The guy could have given his name or showed his carry permit and left. He chose to refuse to identify himself. That may or may not be legal in Ohio, I don’t pretend to know; but I don’t see a jury being sympathetic to the guy.

 

 

[RobertNashville]

According to the story I read no one called 911. A citizen stopped a Police Officer and said he thought the person was suspicious. That means the cops are going to act; or should. We have absolutely no idea what that conversation was. The guy could have given his name or showed his carry permit and left. He chose to refuse to identify himself. That may or may not be legal in Ohio, I don’t pretend to know; but I don’t see a jury being sympathetic to the guy.

Okay...I thought it was a 911 call but I don't see the mechanism for the complaint being made (phone call to 911, flagging down a cruiser, etc) has any bearing...the bottom line is some citizen wet his/her pants because they say a person doing a completely LEGAL thing...the police ought to know it's a completely legal sans some significant information to the contrary and then told the citizen to go about his business.

 

I just don't buy this argument that the police had or must "act"...maybe that's "common police procedure" but if so then I think it's a procedure that needs to be reevaluated.  Were these cops "going to act" because they had any reasonable suspicion that the man had, was or about to commit a crime or was it because police (or at last these officers) think, at least when a gun is involved, everyone is guilty until proven innocent?  The LEOs could have "acted" without stopping and harassing the man who was doing a completely legal thing and it's their unreasonable harassment that has resulted in this law suit.

 

I would suggest that the way this could have been handled was how a somewhat similar incident was handled about a year ago by Metro Nashville at the Golden Corral in Hermitage.  The TFA was its monthly meeting that night and, as is often the case, many people open carry...some 20-something saw a MWAG and complained to the manager who essentially told him to get lost. Not to be deterred, he called the police...when the police showed up, they told him no one was doing anything illegal and then they left...since this was Tennessee they could have been heavy-handed but they didn't ask for anyone's "papers" or demand to see HCPs or search anyone's cars.

 

These Ohio cops had far less reason to act in the manner they did since it's perfectly legal for a citizen to openly carry a firearm without "special government permission"...this "well we need to check him out because he might be a convicted felon, etc. ect..."is a load of LEO double talk.

 

Perhaps these cops had so much time on their hands because all crime in Ohio has been eliminated...I'll have to check that out with my siblings who still live there. I suspect, however, that there is still enough actual crimes being committed in Ohio that these cop's had more productive ways to spend their time.

Edited May 18, 2013 by RobertNashville

[JayC]

If this guys rights were violated, he should receive $1, and an order from the judge to the local DA to charge both officers with kidnapping under the color of law and civil rights violations under the color of law and another order to the state to revoke their POST certification for life.  

 

The officers have no skin in this game today, so what if the victim here wins 3.6 million, or 100 million those 2 officers won't loose their jobs, they won't have to pay a red cent of the money, they won't spend a day, let alone the rest of their lives in jail.  We need to have a ZERO tolerance policy on civil rights violations under the color of law.  Ever case needs to be charged, and taken to a jury, and when an officer is found guilty, they need to be sentenced to the maximum.

 

The fact remains police officers are given a great amount of 'power' in our society today, and we do not hold them responsible for the abuses of that power like we should.  When one of them breaks the law, we need to come down so hard that officers work in fear of violating a citizens rights.

[DaveTN]

Some people seem to know Ohio law. I’ll ask this again. Is there no case law on this? Are you required to ID? What happens when you refuse? Are there any Ohio court rulings on stopping someone open carrying? I can’t believe this has never been addressed.

 

 

 

[DaveTN]

The officers have no skin in this game today, so what if the victim here wins 3.6 million, or 100 million those 2 officers won't loose their jobs, they won't have to pay a red cent of the money, they won't spend a day, let alone the rest of their lives in jail.  We need to have a ZERO tolerance policy on civil rights violations under the color of law.  Ever case needs to be charged, and taken

Do you know that to be true JayC?
from my other post...
 

In states I am aware of; the city or state would pay actual damages and the Officers would be responsible for punitive damages. Is that not the case in Ohio?

If this case was won the majority of damages would be punitive. If a jury thinks he was trying to prove a point; there won’t be much in actual damages; as he caused it.

In a civil case the big question will be did he violate Ohio law leading to his arrest. Just because the DA chose to drop those charges; doesn’t mean the arrest wasn’t legit.

[RobertNashville]

Some people seem to know Ohio law. I’ll ask this again. Is there no case law on this? Are you required to ID? What happens when you refuse? Are there any Ohio court rulings on stopping someone open carrying? I can’t believe this has never been addressed.

i cant go back and review the entire thread right now but I'm pretty sure that the laws and Oh SC decisions have already be cited earlier. I lived. 34 of my years in Ohio and am there every four to six weeks...it's simple, you can carry openly without a permit - seeing someone doing so shouldn't require the police to harass someone and a citizen has no obligation to ID himself of answer any question unless there is a ressonabl suspicion of a crime. Edited May 18, 2013 by RobertNashville

[Chucktshoes]

Some people seem to know Ohio law. I’ll ask this again. Is there no case law on this? Are you required to ID? What happens when you refuse? Are there any Ohio court rulings on stopping someone open carrying? I can’t believe this has never been addressed.

The 4th circuit had a ruling on the issue of OC and PC recently.

“Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. . . . We are not persuaded. Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”

http://www.fedagent.com/columns/case-law-updates/784-fourth-circuit-finds-that-carrying-a-firearm-in-an-open-carry-state-does-not-create-reasonable-suspicion-and-provides-thorough-analysis-of-the-free-to-leave-standard-of-seizure

[monkeylizard]

wow...isn't that what I, a mere non-LEO mortal, said about 10 posts ago?

 

Thanks for finding case law to back that up. :up:

Edited May 18, 2013 by monkeylizard

[DaveTN]

The 4th circuit had a ruling on the issue of OC and PC recently.


http://www.fedagent.com/columns/case-law-updates/784-fourth-circuit-finds-that-carrying-a-firearm-in-an-open-carry-state-does-not-create-reasonable-suspicion-and-provides-thorough-analysis-of-the-free-to-leave-standard-of-seizure

Ohio is in the sixth district; not the fourth. The sixth might decide the convicted felon in possession needs to serve out the 15 years the state sentenced him to.

View of a gun was not an issue. The gun became an issue when the suspect ran from the scene and was tackled.

The court had to really stretch to let this convicted felon in possession go. I doubt that decision will impact much.

[101]

The 4th circuit had a ruling on the issue of OC and PC recently.



http://www.fedagent.com/columns/case-law-updates/784-fourth-circuit-finds-that-carrying-a-firearm-in-an-open-carry-state-does-not-create-reasonable-suspicion-and-provides-thorough-analysis-of-the-free-to-leave-standard-of-seizure

This is exactly what I have been ringing the alarm bell for since the beginning of this thread.

You can not violate everyone's rights to check and see if they are a felon if they are not in commission of a crime.

[Chucktshoes]

That isn't the only court decision that agrees with you on the subject either.

[DaveTN]

This is exactly what I have been ringing the alarm bell for since the beginning of this thread.

You can not violate everyone's rights to check and see if they are a felon if they are not in commission of a crime.

Is the department making the argument that the guy could have been a felon?  I would think the circumstances dictated the Officers’ actions up to the point where he refused to ID. A citizen outside the store contacted the cops about a suspicious person and they approached him; I’m okay with that and would have done the same. By approaching him they stopped the obvious threat of him robbing the store, if that was the citizens concern.
 
My question is what happens when he refuses to identify himself? What if he didn’t have a gun and was just your normal run of the mill suspicious person that citizens call the Police about all the time. Can he legally refuse to identify himself under Ohio law? Or is an argument being made that because he was open carrying a gun he is part of a protected class that the run of the mill suspicious person doesn’t qualify for?
 
I have never heard that you have to wait until someone is in the commission of a crime to approach them. I thought the idea of District Patrol was to be proactive not reactive.
 
 
 

[monkeylizard]

I don't think the department is arguing "he could have been a felon" but that's been DaveS' argument for several pages now.

I don't think the gun puts him in some special protected class. I've been arguing that it absolutely does not. I've been saying the presence of the OC gun should be, by the way I've read Ohio law, irrelevant unless it in some way is a contributing factor for the LEO on scene developing reasonable suspicion.

I agree about the "in the commission" part. 101, your wrong about that. LEOs need reasonable suspicion that a person has is or will commit a crime. They dont have to catch them in the act. At least that's how it is according to Ohio law.

[Chucktshoes]

This is exactly what I have been ringing the alarm bell for since the beginning of this thread.


You can not violate everyone's rights to check and see if they are a felon if they are not in commission of a crime.

Is the department making the argument that the guy could have been a felon? I would think the circumstances dictated the Officers’ actions up to the point where he refused to ID. A citizen outside the store contacted the cops about a suspicious person and they approached him; I’m okay with that and would have done the same. By approaching him they stopped the obvious threat of him robbing the store, if that was the citizens concern.



My question is what happens when he refuses to identify himself? What if he didn’t have a gun and was just your normal run of the mill suspicious person that citizens call the Police about all the time. Can he legally refuse to identify himself under Ohio law? Or is an argument being made that because he was open carrying a gun he is part of a protected class that the run of the mill suspicious person doesn’t qualify for?



I have never heard that you have to wait until someone is in the commission of a crime to approach them. I thought the idea of District Patrol was to be proactive not reactive.

I'd say that question was already answered with this post-> http://www.tngunowners.com/forums/index.php?/topic/65602-Ohio-man-files-$3M-lawsuit-after-being-harrassed-for-legally-OCing/page__view__findpost__p__971215

Unless they had RAS to suspect he was either party to or a witness of a crime, he had every right to not identify himself.

You don't have to wait for a person to commit a crime to approach them, but you do have to have RAS that they were/are involved in criminal activity to detain them or compel them to engage in any conversation that is not 100% voluntary on their part.

[DaveTN]

I'd say that question was already answered with this post-> http://www.tngunowners.com/forums/index.php?/topic/65602-Ohio-man-files-$3M-lawsuit-after-being-harrassed-for-legally-OCing/page__view__findpost__p__971215

Unless they had RAS to suspect he was either party to or a witness of a crime, he had every right to not identify himself.

You don't have to wait for a person to commit a crime to approach them, but you do have to have RAS that they were/are involved in criminal activity to detain them or compel them to engage in any conversation that is not 100% voluntary on their part.

So it’s 4:30 am at the local stop & Rob. How did the guy present? Did the Officers feel he may have been getting ready to rob the place? What did the concerned citizen that approached the Officer say? What did the store clerk say when they talked to him/her? 
 
What I’m asking here is was the guy picked out simply because he was open carrying a gun, or did he look like a dirt bag getting ready to rob the place. A jury (if it gets that far) will be asked to make that decision. If the jury believes this guy was innocent of any wrong doing and the Police acted inappropriately; he gets a payday. Or they could decide that the Officers violated his rights but that their actions were not willful or wanton under the circumstances and award the guy $1.
 
I live in a state where open carrying a firearm does not make you part of a protected group untouchable by the Police; quite the opposite. I don’t think if the guy was carrying a baseball bat instead of a gun there would be a problem with the Police approaching him. Open carrying a deadly weapon does not make you special; it makes you a target.

[RichardR]

So it’s 4:30 am at the local stop & Rob. How did the guy present? Did the Officers feel he may have been getting ready to rob the place? What did the concerned citizen that approached the Officer say? What did the store clerk say when they talked to him/her?

What I’m asking here is was the guy picked out simply because he was open carrying a gun, or did he look like a dirt bag getting ready to rob the place. A jury (if it gets that far) will be asked to make that decision. If the jury believes this guy was innocent of any wrong doing and the Police acted inappropriately; he gets a payday. Or they could decide that the Officers violated his rights but that their actions were not willful or wanton under the circumstances and award the guy $1.

I live in a state where open carrying a firearm does not make you part of a protected group untouchable by the Police; quite the opposite. I don’t think if the guy was carrying a baseball bat instead of a gun there would be a problem with the Police approaching him. Open carrying a deadly weapon does not make you special; it makes you a target.

Wow just wow.

[Chucktshoes]

You continue to claim that folks are claiming his OCing made him part of a special group when the opposite is the case. You and DaveS are the ones using his possession of a firearm as a reason to single him out. The OCing of a gun doesn't legally make him any different than any other customer in the store that night or anyone else on the street. The open wearing of a gun in Ohio is a legal activity and the courts have ruled multiple times in multiple circuits that where the wearing of a gun is legal, it is not PC in and of itself to detain a citizen. The articles never say that there were any other factors that provided PC/RAS to the officers. If the gun was the only thing the officers had to go on (as it appears from the information we have) then their actions were incorrect. If they had other evidence that provided PC/RAS that Call was either about to engage in or had already committed a crime then they acted correctly, however the presence of the gun did not confer any special status upon Mr. Call either for immunity from questioning or as a reason to detain/question him.

[RichardR]

the presence of the gun did not confer any special status upon Mr. Call either for immunity from questioning or as a reason to detain/question him.

^^this^^

[DaveTN]

You continue to claim that folks are claiming his OCing made him part of a special group when the opposite is the case.

I haven’t made any claims.
 

You and DaveS are the ones using his possession of a firearm as a reason to single him out.

Quote where I said that.
 

The OCing of a gun doesn't legally make him any different than any other customer in the store that night or anyone else on the street.

Agreed.
 

The open wearing of a gun in Ohio is a legal activity and the courts have ruled multiple times in multiple circuits that where the wearing of a gun is legal, it is not PC in and of itself to detain a citizen.

Okay.
 

The articles never say that there were any other factors that provided PC/RAS to the officers.

And it does not say there weren't any other factors. That’s why I asked what did the citizen or the store clerk say to the cops.
 

If the gun was the only thing the officers had to go on (as it appears from the information we have) then their actions were incorrect.

Agreed.
 

If they had other evidence that provided PC/RAS that Call was either about to engage in or had already committed a crime then they acted correctly

That's correct, and we don't know that do we?
 

however the presence of the gun did not confer any special status upon Mr. Call either for immunity from questioning or as a reason to detain/question him.

Exactly.

[Guest AmericanWorkMule]

To a reasonable person, Open carry in public is as legal in Ohio as being in public as a free Black man.
So if instead of open carrying the cat was only a Black man displaying his freedom would that give LE reason to detain him?

It may seem so to one particular storm trooper on here

[chances R]

How about, "how do I know he's NOT a criminal?"

Because we ALL are presumed innocent........ even LEO are suppose to know that

[Spook]

"The authorities were alerted,"

This is where the issue got hosed up, imo. Assuming it was a 911 call the dispatcher taking the call, 1) could have asked more about the guy OC'ing to determine just why he was "suspicious" and, 2) explained to the caller that it was legal to carry in Ohio. Seems a minute or two here could have tamped it down. Otherwise just sounds like a nervous store clerk.

As to the issue of how the LEOs responded.... well I think that's been wrung out here.