Ohio: Charged with CCW violation and resulting jury trial

[gbran]

I'm sorry I read this. It makes my blood boil. I am very happy you were found not guilty, but horrified this sort of travesty occured and actually went all the way thru the legal system.

At a maximum, there should only have been some LEO's upset that they couldn't find anything to charge you with.

 

[Browns Fan]

Quote:
"When did he say that to you?"

Granted, it was a few yrs ago, but it still was very unsettling, to say the least. I have not contacted this guy for a long time.

 

[razorback2003]

WOW

I had no Ohio was that bad when it came to carrying a handgun with a license, even legally. You were mentioning something about storing handguns in gloveboxes/consoles, even with a license? That seems wierd to matter to the state lawmakers where you keep your handgun when you are LICENSED!!!! The whole purpose of a license is to keep/carry a handgun however you want in your car, whether that be the glovebox or under a newspaper on the car seat or in your pocket in a holster. That place sounds so foolish. Glad I know if I ever have to drive up there.

I've never had any such encounters when police found out I did or did not have a license and had handguns in my vehicle in Arkansas (before and after license...legal sometimes without) or Tennessee (with license/permit). Most police either do not care or seem to be very police when they run my drivers license. We are not required to inform in TN if we are carrying and we were not required, under law, to inform in Arkansas. The drivers licenses in Arkansas and Tennessee are linked to licenses/permits. I do not inform in Tennessee, unless I think the police officer may come across my handgun, such as a poorly concealed/openly carried handgun or me being asked out of my car. Police have bigger problems in the South than law abiding gun owners. Some strike up conversations about guns b/c a lot really enjoy shooting. I've had some let me try out their guns at ranges. Nice guys.

 

[stevemis]

This sounds like a case where "the police acted stupidly."

Sorry to hear about this, but glad you prevailed.

 

[GripGambler]

you should add a digg button to that blog, stories like this need to get out.

 

[Deanimator]

Granted, it was a few yrs ago, but it still was very unsettling, to say the least. I have not contacted this guy for a long time.

It may actually have been true when he said it. It's not anymore.

 

[RDak]

I'm happy for you rdigital!! Also happy you got rid of your two "friends". They were jerks and put you through alot of misery. Not to mention the obvious overreaction of the police and prosecutor.

Don't lose all trust in the legal system though. When I was young, the prosecutor took two weeks reviewing my case, etc., and came back with a "justifiable self-defense" decision.

It was a bad two weeks mentally but, in the end, that prosecutor, and whoever else was involved in the review, were fair. I never heard another thing about it and it never showed up on my record. (Of course that was LONG before the computer age and the ridiculously anti-gun sentiment that ran through the country in the Clinton era though!!)

You did good rdigital!!

 

[Zoogster]

If it requires a permit or a license then it is not a right. Now you can see why.
Endless numbers of discretionary requirements can be tacked on. Like the requirement to notify the officer in a "timely manner."

Had there not been a dash camera you would have lost. 51 seconds would have been "a long time" or "several minutes" when the officer recalled it in court without a dash camera with a clock.
Had it happened in front of or at the apartment while you were carrying you would have been far from the dash camera.


You were simply lucky that it happened right in front of the dash camera of a patrol car, and the tape was not "lost" or recorded over. So you were lucky it was a vehicle confrontation. If they ran into you on foot and you were carrying you would not have done so well in court.


A lot of naive people believe the truth always comes out or justice prevails in the system. They are simply wrong. Court is a bunch of random people, with many of the intelligent people getting out of jury service, or being considered unsuitable because of education or experience. Who remains is who seem simple (which does not mean they are or those who serve are) and therefore "non-biased". The clay like minds that they feel start with little or no foundation and can be molded by the details presented in the case. The very people least likely to see through deception from either side, unless explained to them by the other.
Those with a career in the system make thier living processing people through it and need a constant flow of numbers. You were just another number. You were nothing special to them. Your petty case no more or less important than another petty case. The precision with which it is processed no greater. Just part of another day's work on a case they won't remember next week.
Innocent people are convicted all the time. Exaggerated charges stick, and the word of an officer will trump the word of a mere peasant every time.
The only thing that saved you was the dash cam.

 

[jbrown50]

This whole thing could have been avoided had the police not overeacted to the feminazis (as nitetrane98 so aptly put it) and simply used some common sense. You were in your car leaving after an argument with your girlfriend and no one had been injured or threatened. You were mature enough to know to get on your horse and get out of Dodge. Had they investigated the incident instead of overzealously reacting, this would have turned out much more reasonably. Cooler heads should have prevailed.

It also amazes me how so many police officers think that it is OK to abuse their police powers by fabricating charges against someone in the name of protecting the public.

I'm not a person who cries 'lawsuit' at every drop of a hat but if there's any other way to start forcing these jurisdictions to crack down on this goulish behavior by their police I'd be open to it.

 

[Deanimator]

I'm not a person who cries 'lawsuit' at every drop of a hat but if there's any other way to start forcing these jurisdictions to crack down on this goulish behavior by their police I'd be open to it.

There really isn't and a central part of the solution is suing the officers in question as individuals whenever possible. Nobody cares if the city/county coughs up $1,000,000, but when YOUR paycheck goes to somebody else, or the Sheriff's coming to get YOUR furniture, it's a real deterrent.

Example: Cleveland, Ohio has an "assault weapon" ban. That ban has been preempted and rendered null and void by Ohio state law. Frank Jackson, the Mayor of Cleveland ordered the Cleveland Police to continue to enforce the now legally dead AWB. The Cleveland FOP advised its members to NOT obey that order, lest THEY be sued for civil rights violations and lose their homes in lawsuits they can't possibly win. KNOWINGLY violating the law pierces the cops' qualified immunity. I doubt you could fill a phone booth with Cleveland cops willing to fall on their swords (much less throw their families onto them) to help Mayor Jackson beat a dead horse. THAT is deterrence.

 

[Keb]

Did the matter of 51 seconds come up in the trial?

 

[Deanimator]

Did the matter of 51 seconds come up in the trial?

That was the fundamental issue at trial, whether those ***51*** elapsed seconds did NOT constitute "prompt" notification. Clearly, 51 seconds IS prompt notification, at least in Beachwood, Ohio.

 

[Zoogster]

Did the matter of 51 seconds come up in the trial?

The police and the prosecutor certainly reviewed the dash cam video before it ever went to court.
They would have known before court that such a time frame was not the best way to make the individual look bad. They certainly still would have mentioned it as it pertains to the charge, but with proof of the exact number of seconds in video they would have been foolish to make the exact number of seconds a central part of thier case.
A timely manner is still however discretionary, so if they could make the jury think he was a bad or dangerous guy, they jury could still technicaly find him in violation of the law.
So the evidence would likely instead focus on implying (likely without outright saying so) the potential danger he posed with guns and large ammunition clips (31 mag) and the excessiveness of is hobby. Then combining it with the reported domestic disturbance to make it seem like he is a danger just waiting to happen. A danger they could stop by finding him guilty.

While those things are not illegal, biasing the jury by making him seem strange and dangerous would have been the only potential way to win absent creating false evidence and other charges.
They simply had a very poor case from the start, and would have known it after reviewing the dash cam footage, but the prosecutor clearly still felt confident enough to take it to court.
Perhaps thier intent was trying to get the defendent to plea to a deal. A deal with no jail time, without the expense of trial and attorney fees by pleaing to a minor crime. Many people take such a deal under the circumstances, especialy if they cannot afford court and think they have a decent chance of losing (which the system will assure them they do).
That would have given him a record, likely keeping him from continuing to have a Concealed Carry permit, which could have been the motivation for proceeding with charges on a weak case the entire time. To take away the RKBA from someone they felt was a little too into firearms, and has domestic problems (which they may imagine are greater than they are), or at least his ability to carry guns around with him legaly.

 

[Deanimator]

Perhaps thier intent was trying to get the defendent to plea to a deal.

And how'd that work out for them?

I suspect that the odds of the victim NOT suing the officers and the city are vastly lower than those of Rosie O'Donnell dieing of anorexia in the next ten days.

By the way, Ohio awards reasonable legal fees in such cases.

 

[WLE]

I may have missed it, but I wonder what was initially reported to the police when the mother called in?

 

[Zoogster]

I suspect that the odds of the victim NOT suing the officers and the city are vastly lower than those of Rosie O'Donnell dieing of anorexia in the next ten days.

By the way, Ohio awards reasonable legal fees in such cases.

To find the officer liable and not protected under law you would need to show the charge was malicious in nature and he was not acting in good faith in the performance of his duties.
Suing would require even more money (in addition to his current court fees and impound and towing fees), and there is a good chance the single charge which he technicaly could have commited will not be seen as malicious. Just an officer doing what he thought was the right thing.

Charging someone for a crime they technicaly did commit if 51 seconds, 20 seconds, or 5 minutes, is determined to have been too long is not likely to be seen as malicious. It is not likely to be considered a violation of thier rights which then means the Officers are immune from suit under Ohio law.
Let me show another case verdict that cites case law in Ohio to demonstrate (one of the first that popped up, but the case itself is not as important as the cited reasons the officers are immune with relevant case law) It shows why both the department and the officer are immune under Ohio law:


http://ftp.resource.org/courts.gov/c/F3/104/104.F3d.361.95-4124.html

I. IMMUNITY
6

Plaintiff's case fails initially because all defendants are immune from suit.
7

In suits brought under § 1983, qualified immunity protects those police officers "whose conduct does not violate clearly established statutory or constitutional rights." Kelm v. Hyatt, 44 F.3d 415, 421 (6th Cir.1995). Applying this test, plaintiff has failed to meet his burden of alleging that the actions of the Eaton police officers violated any clearly established right. See Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.1995). In the absence of any such allegation, the officers are immune from plaintiff's § 1983 claims. Siegert v. Gilley, 500 U.S. 226, 231 (1991).
8

Plaintiff's attempt to hold the City of Eaton liable under § 1983 also fails. Municipalities cannot be sued under § 1983 for the actions of their employees or agents unless those actions were executed pursuant to a policy or custom of the city. Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 694 (1978). Plaintiff's complaint is entirely barren of any allegation of custom or policy on behalf of Eaton.
9

Defendants are also entitled to immunity under Ohio law from plaintiff's ancillary common law claims.2 Ohio law provides statutory immunity to political subdivisions unless the cause of action asserts "negligent ... acts by their employees with respect to proprietary functions." Ohio Rev.Code Ann. § 2744.02(B)(2) (Anderson 1992) (emphasis added). Ohio law also protects employees of political subdivisions engaged in governmental or proprietary functions unless the employees acted outside the scope of their employment or with "malicious purpose, in bad faith, or in a wanton or reckless manner." Ohio Rev.Code §§ 2744.03(6)(b) (Anderson 1992). At all times during the incident the officers were engaged in routine police services, which the statute defines as governmental, rather than proprietary, functions. Ohio Rev.Code §§ 2744.01(C)(1), (G)(1) (Anderson 1992). Furthermore, plaintiff has again failed to allege any facts that would indicate the officers acted maliciously or in bad faith. Both the officers and the City of Eaton are immune from liability for the state tort claims.

So you would have to show the city had a custom or policy, not acting under statute on state law for the department to be liable, ie something the department permits that it shouldn't.
Or that the officer himself was "negligent" as defined by law and "malicious" or in a "wanton or reckless manner".

Do you think the court will find the officer was malicious and acting in a wanton or reckless manner? Or do you think they will grant a summary judgement of immunity to civil action?

If he loses it just means he will be out even more money to pay a lawyer to argue a case. Since the case is certainly not strong he will be unlikely to find any lawyer willing to take the case on a contingency fee arrangement. So he will need to fork over money that will not likely be repaid.

 

[Deanimator]

If he loses it just means he will be out even more money to pay a lawyer to argue a case. Since the case is certainly not strong he will be unlikely to find any lawyer willing to take the case on a contingency fee arrangement. So he will need to fork over money that will not likely be repaid.

I think rDigital has a better chance of showing that the arrest was INTENTIONALLY unreasonable than Beachwood did of proving that he didn't "promptly" notify. The diversions attempted at trial only back this up.

I'm sure more information will turn up on the Ohioans for Concealed Carry website.

 

[Zoogster]

I think rDigital has a better chance of showing that the arrest was INTENTIONALLY unreasonable

On someone who had a call placed on them for a domestic dispute or perhaps alleged domestic violence or fear of domestic violence? (We don't know what that other girl said when she was afraid during the argument, and her mother likely made it sound even more dramatic afraid for her daughter.)

The dispatcher likely told the officers to respond to a domestic dispute involving the specific individual known by name as mentioned by the friend. An individual who then is a known CCW holder (a gun!) when they pull up his name on the computer.
The information the officers had prior to thier meeting with rDigital was no different than what they would have if someone who was in the process of attacking thier wife was called into 911.

Dispatch does not relay every detail of a 911 call to the officers while they are in route. They just give them a general summary of alleged events.
Domestic situations are known to be highly fluid and unpredictable.

Additionaly since the call was made by the mother of the girl texting her mother to call the police, the actual caller likely had no idea of what was really going on. Just that her daughter was very scared and some sort of domestic incident was going on and the name of the individual responsible (rDigital). So the 911 call was made by someone receiving second hand information, and may have been even more embellished by a mother afraid for her daughter who wanted a prompt response.

So when the officers first arrived they could have really been anticipating a serious situation being commited by someone known to carry a gun (concealed permit holder in thier database.)

 

[Gryffydd]

I may have missed it, but I wonder what was initially reported to the police when the mother called in?

This would be very interesting. a FOIA request should get a recording or at the very least a transcript of the call.

 

[JCisHe]

Right Zoogster and then add to that loose ammo, multiple guns, a large magazine, and cops who really weren't interested in his innocence. That's what brought about this situation (more the "stuff" than the cops though they were jerks).

My position was that it would have been MUCH Better to have had a weapon, perhaps 2 mags (enough ammo), and everything properly stored in the trunk so that he looked like he was in control.

I think the cops and the little old woman who gave this guy advice saw a young man who was overzealous. I would also add that the cops saw a dangerous person because of the multiple hidden guns and large cap magazine loaded.

It wasn't right but the circumstances are understandable. And like I said, THEY WERE WRONG but I can understand it. I've taken from this the need to leave range stuff at home until I'm going to the range and the need to be prudent about what exactly I am carrying.

 

[Rodeo4joe]

I would think that rDigital would have a chance if he pressed forward on the mailicious case between the conspiracy to search for a reason (if it was on the dash cam) and the fact that they confiscated his CCW permit prior to the conviction if he was correct in his statement that they are not allowed to confiscate that until the conviction comes about. (not questioning you rDigital just dont know Ohio law)

 

[Zoogster]

Right Zoogster and then add to that loose ammo, multiple guns, a large magazine, and cops who really weren't interested in his innocence. That's what brought about this situation (more the "stuff" than the cops though they were jerks).

Exactly. They received a likely very frantic call by a mother afraid of what was going on who didn't really know what was happening.
They don't know that the alleged domestic incidents are not really occuring, or what type of domestic incidents do occur and may assume they are like what they see on other calls all the time.
They find a young man, who has several guns, ammunition, and a magazine alone twice as large as the guns they carry.
They look for a technicalty to arrest this potentialy dangerous individual who just returned to a vehicle filled with loaded weapons after a domestic situation.

They then probably proceeded with the charges in an attempt to remove his RKBA or at least his ability to hold a concealed carry permit. Whether through a plea bargain, or hoping the jury would see him as a danger and find him guilty on the discretionary technicality. So centering thier case more on him, the guns, and the domestic situation than on the crime itself to paint him as a dangerous person that they can stop by finding him guilty.

None of that makes it right. It is simply the perspective of the other side.

 

[Deanimator]

On someone who had a call placed on them for a domestic dispute or perhaps alleged domestic violence or fear of domestic violence? (We don't know what that other girl said when she was afraid during the argument, and her mother likely made it sound even more dramatic afraid for her daughter.)

Was rDigital arrested for "domestic violence"? No.
Was rDigital tried for "domestic violence"? No.

What was rDigital arrested for? "Failure to notify".
What was rDigital tried for? "Failure to notify".
What was rDigital acquitted of? "Failure to notify".

Under the law, he was arrested for what he was arrested for. "Domestic violence", "too many" guns or "too much" ammunition is as irrelevant as whether he was ever a member of the Communist Party.

The question at hand is whether the arrest and prosecution were both unreasonable and malicious. The police and prosecutor have met rDigital halfway in proving that they were.

Stupidity and malice go hand in hand, and the Beachwood PD and prosecutor have done their level best to show just that.

 

[jbrown50]

Charging someone for a crime they technicaly did commit if 51 seconds, 20 seconds, or 5 minutes, is determined to have been too long is not likely to be seen as malicious. It is not likely to be considered a violation of thier rights which then means the Officers are immune from suit under Ohio law.

In this case the arresting cop made it difficult for rDigital to abide by the law by effectively not letting him speak and verbally silencing him. Then later, while searching for a charge to lay upon him, he and the other officers use it against rDigital by charging him with failure to notify. The police can't prevent you from obeying a law by restaining or arresting you then later charge you with breaking that same law.

You lawyer types please correct me if I'm wrong but I think that's called entrapment.

Ooooops, sorry Deanimator, I didn't see your post. You're saying the same thing basically.

 

[Zoogster]

In this case the arresting cop made it difficult for rDigital to abide by the law by effectively not letting him speak and verbally silencing him. Then later, while searching for a charge to lay upon him, he and the other officers use it against rDigital by charging him with failure to notify. The police can't prevent you from obeying a law by restaining or arresting you then later charge you with breaking that same law.

They did not silence him in the begining, they had him at what he believed was gunpoint with a laser pointing at him. He could have told them he had a gun while believing he had officers pointing guns at him. It could have been a fatal move if they had been guns and it scared them during thier adrenaline rush, but he could have still done it.
If officers rush up to you with guns drawn, and you have a requirement to tell them you have a CCW permit and a gun in your state, the fact that you have officers with thier guns pointed at you and maybe fingers on the trigger does not relieve you of that requirement.
You may die as a result, but it is still the requirement of the law. Proceeding to do so as calmly as possible is of course the best method.
If you wait until later when you don't have guns pointed in your face, it could be considered not "in a timely manner" at the discretion of the system and the jury members who hear the case. It may be the most logical thing to do, but could still be considered illegal.