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SOURCE:
Ohio man sues town, police in open carry case

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05/15/2013

Ohio man sues town, police in open carry case
He is seeking compensatory and punitive damages of $3.6 million in a lawsuit after he was detained for not cooperating with police

By Mark Gokavi
Dayton Daily News

DAYTON, Ohio — While openly carrying his Springfield XDM .40-caliber handgun, Tipp City resident Roy Call walked into a Riverside Speedway store at 4:30 a.m. Aug. 12, 2012 to buy a sports drink.

That's when — as claimed in a lawsuit against the city of Riverside, its mayor and two police officers — Call said he was illegally detained and briefly had his gun confiscated. Call is seeking compensatory and punitive damages of $3.6 million in a lawsuit field in the United States District Court/Southern District of Ohio in Dayton.

But Riverside police Chief Mark Reiss said his officers acted correctly and all Call had to do was cooperate.

"Had he been truthful with the police and simply provided his identification so that they could have quickly ran it, that encounter would have been over very quickly, within a minute or two," Reiss said.

Open carrying a firearm without a license in Ohio is legal in most circumstances. Call does have a conceal and carry license (CCW), but Reiss said Call did not immediately provide police with his CCW, driver's license or admit that he drove to the gas station.

"Given the time of the day, the location, and the fact that convenience store/gas stations are typical targets for robberies in the middle of the night," Reiss said. "It would seem reasonable in the eyes of a police officer to ask someone who was carrying a gun if it was legally permissible for them to do so."

Police reports show a citizen at the Speedway at 3201 Valley Pike was concerned that a man had a gun in the open and told Riverside police Sgt. Har-old Jones, who motioned to Call to come outside.

The lawsuit recounted that "After Call complied with Jones' request, which was made with no probable cause, or a warrant, and without legal authorization, Sgt. Jones questioned Call, 'Why are you wearing an open gun?' Jones continued to question Call even though Call asked, 'Am I free to go?' to which Jones told him no."

Call was charged with obstruction of justice, but Riverside City Manager Bryan Chodkowski said that charge was dropped Oct. 2.

"Based on the totality of the circumstances, we recognized that it was probably a viable charge at the time," Chodkowski said. "But recognizing what it meant in the grand scheme of things, it wasn't a charge that we felt was worth pursuing."

Jones' incident report said Call would not answer questions relating to his identity. "He eventually said he had no identification with him. This was actually a lie as his identification was approximately 50 feet away in his truck along with his CCW card," Jones' report said. "This was not found for several minutes. He told me he was exercising his Second Amendment rights to openly carry a gun."

Call had his gun taken from him, was handcuffed and placed in the back of a cruiser while Jones and Riverside police officer Matthew Jackson found Call's ID and searched to see if he was under any disability. Call's lawsuit also said he had a recording device which Jones found and turned off and that officers "falsely reported that Call had a history of initiating confrontations with police officers and recording the incidents."

A Facebook page called Miami County, Ohio Concealed/Open Carry includes a link to a YouTube video of a man allegedly stopped in Vandalia for open carrying a gun with a shared link from a "Roy Call."

Asked if he belonged to any groups, another incident report said Call replied, "Yes. The NRA." Call had his gun and ammunition returned to him after his identification check was complete.

The suit asks for $600,000 for compensatory damages for "emotional trauma" and other factors and for $3 million in punitive damages for the "willful, callous and malicious conduct" of the defendants. Call's attorney, Charles E. McFarland of New Castle, Ky., said: "I normally do not comment on ongoing cases to the media, but believe that the complaint speaks for itself."

Chief Reiss added: "With carrying a firearm openly, there also comes responsibility with that. People should realize that they may, given a certain set of circumstances, draw the attention of law enforcement. A responsible person would just identify themselves if there's a brief check to be done and then they would be on their way."
 

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One question. How many criminals going to rob a gas station at 4 am open carry their weapon in a non threatening way?
 

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uh huh, just surrender your 2nd, 4th, and 5th amendment rights and we'll let you go your merry way.
 

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I'm glad that the police followed up on the call, but they really should have handled this better. Yes it was late at night, but given that before they even walked into the store they should have been able to easily see that it was not a robbery. I'm not sure that they acted 3.6 million dollars inappropriately but they did misbehave, as evident by the fact that the man was not charged with anything. As to the guy I don't know what happened in the store but once he was handcuffed he should have used his right to remain silent instead of going off about the second amendment, other than asking for a lawyer telling cops what your rights are never helps in these situations.
 

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Okay I ALWAYS try to give LEOs benefit of the doubt. 1. I know in some states I don't know in Ohio, but the LEO can handcuff you for having a gun FOR THE OFFICER'S SAFETY. 2. The officer most definitely had probable cause which is: A common definition is "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a Prudent and cautious person's belief that certain facts are probably true".[SUP][/SUP] 3. If the guy had just given his info to the police for which he had no reason to hide, NONE of this would have happened.
 

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All that matters is the law. If he was required to show ID, then he was wrong, if he was not required to show ID, then he gets a payday.

Hope he wins big.
 

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Open carrying of weapons wasn't uncommon 60+ years ago but we have degenerated into an nation of incipid wimps who are scared of our own shadows and the mere mentioned or sighting of a gun (which many folks haven't a clue what they look like). Combine this with police who err on the side of extreme caution and throw in an cooperative nincompoop carrying in a safe and legal manner who has a chip on his shoulder and you get this stuff.
 

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All that matters is the law. If he was required to show ID, then he was wrong, if he was not required to show ID, then he gets a payday.

Hope he wins big.
But my thing is wether he HAD to show his ID or not he still COULD show it. Why didn't he? Was he just trying to be the cool rebel that stood up to the public servant? I mean if he had nothing to hide why didn't he just cooperate? And why if he had a CCL was he OC? Sounds like he was trying to show off his XD .40. JMHO.
 
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Ohio is known for their police behavior when confronted with a person having a gun. Its not a isolated incident and people are pushing back. IMO
I mean since when does it attract attention to walk into a store open carrying and buy a drink and leave. It happens all the time in TN I guess certain states just don't get that we have rights.


When I worked nights and got home at 3:30am I was walking the dogs so the wife could sleep in, The police drove by me I waved like always its happened more then once. At that time they drove down the road and turned around fast and came back fast got out and asked my name and as other's were getting home we had several in the neighborhood that worked at the same place. I said who I was and they thought it looked suspicious that I was out that late. I said is it suspicious that several of my neighbors that new me had passed us at the same time and they new GM got out at that hour. They thought I had a attitude and I said I was well known with the department as I was head of the neighborhood watch program and lived two houses away and were welcome to follow me home. They got a call and took off never asking for ID realizing I made more sense then they did. If your not acting guilty they should not be able to just detain you for no reason. Although I fully acknowledge their right to if you are doing something suspicious but walking the dogs with a work shirt on with the name on it should have been a clue. And my wave and friendly conversation. I never refused to answer any questions or acted smart or anything as I knew most of them to begin with. You just never know what to expect in todays world and political aggressive behavior. Just a story from the past.
 
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Well in the end, saying it may lead to an unlawfull arrest...that is certainly not true. He wasnt arrested, he was detained, you can be detained at any time while being questioned by LEOs, it's generally for the safety of the officer(s) and not because you have committed any crime.
One thing I will say is, the lead officer handled this badly. I have seen a lot of these videos, most are a self righteous guy spouting off his rights while the officer is being genuinely courteous and nice. Those are the instances I side with the officers. This doesnt seem to be one of those instances.
The charge is bogus and will get dropped, he wont win a suit though.
 

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But my thing is wether he HAD to show his ID or not he still COULD show it. Why didn't he? Was he just trying to be the cool rebel that stood up to the public servant? I mean if he had nothing to hide why didn't he just cooperate? And why if he had a CCL was he OC? Sounds like he was trying to show off his XD .40. JMHO.

A call to the police from a scared citizen who saw another citizen lawfully carrying a firearm does not elevate a lawful activity to an unlawful activity.

One of these types of calls to the police from a scared citizen should elicit the same response as a call from a scared citizen saying "I saw a guy driving a car!" Yeah AND???.

The police SHOULD be able to tell the difference between a person PURCHASING goods at a store and a person ROBBING the store. A hint would be one person gives the clerk money, the other takes the money from the clerk, that is probably in one of the police training manuals somewhere.

Yes you "Could" show your ID, after all those with nothing to hide, hide nothing.

Where are your papers? Show us your papers!!! You don't mind if we search your car, right? How about your home? Legal documents? Medical information. Keep your DNA on file?

Your rights are designed to protect you, the police are not.

Exercising your rights is not about being cool or rebellious, it is your RIGHT as an American to do these things.

Rights are a lot like muscles, you use them or lose them.

Not picking on you or your post.
 

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Well in the end, saying it may lead to an unlawfull arrest...that is certainly not true. He wasnt arrested, he was detained, you can be detained at any time while being questioned by LEOs, it's generally for the safety of the officer(s) and not because you have committed any crime.
One thing I will say is, the lead officer handled this badly. I have seen a lot of these videos, most are a self righteous guy spouting off his rights while the officer is being genuinely courteous and nice. Those are the instances I side with the officers. This doesnt seem to be one of those instances.
The charge is bogus and will get dropped, he wont win a suit though.
According to TERRY LEO cannot "detain" you at anytime, they must have RAS to do so, according to a federal case (I forget the exact one) legal OC (ie where Permitless OC is legal) is NOT RAS.
The minute he asked if free to go and was told "no" it became a stop wherein his 4th and 5th amendment rights came into play. At that point he should have requested a lawyer, and shut up. If he did so the police violated his 4th amendment rights and executed a warrant less search of his vehicle and person.
The 5th allows us to remain silent, police cannot FORCE us to respond, we must act on it and shut up.
The 4th is what prevents a "papers please" society. In AL until I get in or on my vehicle I am not required to have any identification. They can ask my name but not ID. I am not required to have either ID or CCP while afoot to OC. Once operating a vehicle I must have both if armed.


Posted from the outer reaches of the universe via my Star Fleet communicator! Live long & prosper.
 

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Let's see... had a recording device on him, posted a link on a Facebook page, reused to simply show his ID.
He's an idiot, looking for a payday, and does nothing to help our cause at all.
I hope he doesn't get a penny.
 

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According to TERRY LEO cannot "detain" you at anytime, they must have RAS to do so, according to a federal case (I forget the exact one) legal OC (ie where Permitless OC is legal) is NOT RAS.
The minute he asked if free to go and was told "no" it became a stop wherein his 4th and 5th amendment rights came into play. At that point he should have requested a lawyer, and shut up. If he did so the police violated his 4th amendment rights and executed a warrant less search of his vehicle and person.
The 5th allows us to remain silent, police cannot FORCE us to respond, we must act on it and shut up.
The 4th is what prevents a "papers please" society. In AL until I get in or on my vehicle I am not required to have any identification. They can ask my name but not ID. I am not required to have either ID or CCP while afoot to OC. Once operating a vehicle I must have both if armed.


Posted from the outer reaches of the universe via my Star Fleet communicator! Live long & prosper.
Correct, my post was assuming you were already stopped with a reasonable cause, not just having police come and detain you whenever they want. I should have worded it better.

This isnt in regards to this exact event, but many videos posted on Youtube are of someone already recording on their phone ready to be complete jerks to the police just repeating their rights with attitude and refusing everything, then go on to post how they were mistrated by the polce.
If im stopped because I was OCing and someone called the police on me, and the LEO is respectful (they werent in this particular case but usually are in the majority of these vids), im going to give him my ID and be on my way. Im not going get self righteous, get a huge attitude treat the officer like trash because he wants to make sure im not a felon or I didnt just murder a family down the road, as ive said in other posts regarding this subject. Yes its my right not to, but WHY would I not other than to give them a hard time? I just dont get it. If im stopped because they saw me and wanted to harass me thats one thing, but if they stop me, are nice and respectful, and responding to a man with a gun call, WHY be a jerk? Why refuse everything?
I understand where the LEO is coming from, ive been there, hes not trying to stomp on my rights (in the majority of cases, this does not apply to every instance), im going to treat him as he treats me, nice gets nice. No reason for self righteous a-hole because I can.
Now, as I said, this isnt in regards to this post's event. Its in regards to the dozens of others ive seen.
 

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Let's see... had a recording device on him, posted a link on a Facebook page, reused to simply show his ID.
He's an idiot, looking for a payday, and does nothing to help our cause at all.
I hope he doesn't get a penny.
I won't show my ID either because by law I don't have to and dangit I'm tired of getting stepped on because "it's easier to comply". I always carry a recording device on me in case something like this should develop..it's called my phone, 2 seconds and it's recording.

Let's put it this way, if the LEO had kept it at the level of consensual contact ("How are you doing today sir?" "Pleasant morning isn't it sir?"), or better yet no contact, there would be no video of a cop overstepping his bounds would there?

Who's to blame? Oh yea, let's hang the guy who's doing nothing more than stopping at an (in)convenience store.

(I'm not going to rant, I'm not going to rant, I'm not going to rant...)
 

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This reminds me of the sailing course I took with the Coast Guard many years ago.

Maritime law states that sail boats have right of way over any motorized vessle. That includes oil tankers.
But you could end up dead to your rights.

Both parties could have handled this better.
IMHO the 'dude' was out to 'stick it to the man'. Maybe not that night, but in his attitude overall.
He could have been polite and gave his first name then his business at the store. When questioned about his weapon he could have stated it was legal.

But once he was cuffed and placed in the car I can understand a more stonewall stance.

That leaves me another question. If the officer understood the road this situation was taking. He could have waited for the 'dude' to enter his auto.
Could the officer imediately flip on the lights and then leagally require identification?
Would he have to wait for the car to enter the public roadways before hitting the lights?
Would the officer be required to make up some reason to pull over the car first?

All the more reason to clean your plates and check your plate lights. All your marker light for that matter.
 

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In reply to the 'why open carry when you have a CWP' question, the answer is because you can. If it is legal to open carry and you want to open carry then open carry.
 

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Why open carry when you have the CWP?
Why not? I'm doing nothing wrong and it's much more comfortable and accessible for me. I've been OCing for over three years (before WI had a CCL) and it's gotten to be habit and I've had a grand total of 2 people have negative things to say...one of which was rebutted by my 7 year old daughter at the time.

And I don't want to hear "It makes you a target", it's happened and been documented a total of 2 times so while it may be a valid statistic, it's an insignificant amount considering how many people OC. It's like saying having a car targets you for carjacking.

I'm not going to rehash this tired old argument again, it's as pointless as the caliber debate because those who have decided one method of carry or the other are not likely to change their mind so at this point I'll respectfully bow out with an "everyone's entitled to their opinion and how they choose to live their life"
 
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