Saturday, July 18, 2009
CCW Violation: My experience and trial in a court of law.
This whole ordeal started back on 03/17/2009. I found it to be humorous that I'm part Irish, was wearing "Lucky" brand jeans, not drinking and was arrested on St. Patrick's Day. Other than that, there is no humor in this article.
I think ; )
At no time during this entire situation was I actually carrying one of my firearms. They were all legally stored in my vehicle.
My girlfriend and I were having an argument at her apartment. Her friend was upset that we were fighting and kept interjecting in our discussion. I told her in no uncertain terms to stay out of it. This was not a heated argument. There was no yelling, fighting or anything of that nature. There was no violence of any kind. It was like most other arguments that she and I had had in the past. Unbeknown to me, her friend was quite frightened by our exchange. I found out after the fact that she was using her cell phone to text message her mother to call the police. From what I was told after the fact, her friend was abused by a male family member as a child and was scared by our argument.
After being asked to leave, and the argument that ensued, I left the apartment of my own accord. I went down the stairs to my car parked out back, the way I always do when leaving her apartment. I got in my car and started to pull out of the parking space. I didn't get more than 2-3 feet forward when I was ordered to stop the vehicle. I had no idea who was yelling at me at the time. There was no police cruiser out back and it was dark outside. A police officer ran up behind my vehicle with a taser drawn and pointed in my direction. He ordered me out of the vehicle at taser point and I complied. I complied with such haste that I didn't even turn off my car and I left the driver side door open. I exited the vehicle with my palms exposed to show that I didn't have anything in my hands. I had no idea that the officer was carrying a taser at the time, I didn't know that tasers has laser sights on them. I guess that I learn something new every day. I thought it was an HK USP .45, the standard sidearm of the Beachwood Police.
I was quite frightened and was not exactly sure why he was stopping me. My girlfriend’s apartment complex is large and visited regularly by law enforcement and emergency medical personnel. Encountering a police officer on the premises was a pretty frequent experience.
I was ordered by the officer to put my hands on the roof of my vehicle. He asked me who my girlfriend was. I told him her name. I asked him what was going on, but there was no reply from the officer. This officer was the arresting officer who will from here on be referred to as "Matthew". I was not able to attain Matthew's attention to communicate with him. A second officer arrived and was speaking with me directly and I acknowledged him when he started patting me down, presumably for weapons and other possible contraband. I let him know that I had a Swiss Army Knife in my pocket and that I had a CCW permit and that my firearms were in the car.
They asked me where my firearms were and I told them the locations where they were legally stored. I was then detained and placed in the back of a police cruiser.
Thus began the fishing expedition. At first, the officers tried to tell me that my firearms were illegally stored as my center console and glove compartment did not have locks. I let them know that as of September 2008 my storage choice was legal in the state of Ohio. Telling them this may have been a mistake. I think that it only made them try harder to find something to charge me with.
I was cuffed by another officer while they tore apart my entire car looking for something I could be arrested for. They came up empty handed. I made every effort to be courteous and helpful to the officers involved, but after the incident was over I saw the dash cam video and it was clear that there was more going on than I knew.
A police lieutenant from Beachwood showed up and ordered that my vehicle searched from front to back. His police cruiser was the one with the fancy dash cam and voice recorder that my arrest was recorded on. I can't really think of a good reason for them to have searched my car. I let them know where my firearms were and I was honest with then in all of their inquiries. They had trouble finding my Bersa .380 CC in the closed center console and I directed them to the panel under the air conditioning unit that covered the center console.
They tried to get me to admit that my Icon Ti-Max motorcycle gloves were weapons. They are fashionable protective gloves for motorcyclists and nothing more. I told them to look inside the gloves. Inside the gloves is printed "Live to Ride". I wonder if they noticed the motorcycle helmet in the car.....
The police can be overheard in the dash cam tape describing me in less than favorable terms. I was called a "loser" and they were audibly upset that I was had 2 firearms in my vehicle. I had done nothing illegal. They did not have anything to arrest me for, and then all of a sudden they had an epiphany.
They took about 30 minutes trying to figure out if there was a way that they could charge me with a crime (the discussion was recorded on the dash cam's voice recorders). Matthew read me my Miranda rights. I asked what I was being arrested for and he stated "failure to notify". There were about 5 officers and patrol cars on the scene and a couple of the other officers chimed in and said I something to the effect of "you should know better because you took the CCW training class." I guess I missed the part of the class where you are put in a felony stop situation in fear of your life by an overly aggressive officer who does not listen to a word you are saying. Keep in mind, that I was not charged with nor was I arrested for any other offense than "failure to notify".
After conferring with his lieutenant, Matthew claimed that I failed to "promptly" notify that I have a CCW permit and that I had loaded firearms stored in my vehicle. Matthew later filed a complaint stating that I failed to inform him within 51 seconds of being detained that I had a CCW permit and loaded firearms legally stored in my vehicle.
51 seconds may not seem prompt enough if you are sitting in a quiet room staring at your watch, but when you're being screamed at and a weapon is pointed at you everything is happening so fast the world is a blur. The only thing that I could think of was staying calm and keeping the situation sane and safe for all involved.
Below is a copy of the complaint with most personally identifying info omitted. I find it moronic that a police officer listed my SSN on a document that is in the public record. I wonder what the Social Security Administration would have to say about this?
I let them know as soon as I could. Matthew would not let me establish a rapport with him. It's part of their training not to let you talk, lest you distract them from detaining you and controlling the situation. The police speak in a harsh and authoritarian voice to shock and frighten you into a submissive mental state, thus making you easier to detain and less likely to resist. From the police officers that I have spoken with on this matter this is standard operating procedure when stopping a "suspect". Officer safety first and foremost, I concur.
So how many seconds did it really take to notify? According to the police video, I notified as soon as the second officer would let me talk to him. I notified him as soon as he would let me speak. It took about 7 seconds. I would say I was prompt and acted with reasonable speed. Sadly, common sense did not prevail during my encounter.
If I had jumped out of my car and stated to the first officer, who was alone at first, that "I have a CCW permit and my guns are in the car!" I could have been tasered, or worse. A surprised police officer can really ruin your night. The officer was noticeably agitated and excited. I didn't want to frighten anyone, especially the police. I am about 6'4" 250 lbs, which made me about 7 inches taller and approximately 60 lbs heavier than the Matthew from my observations. Physical size can be intimidating to people who may not familiar with you. I don't wish to make people who can end my life in a heartbeat(the police) think that I'm a threat. When I saw the "gun" and realized that he was a police officer I wanted to make sure that he knew I was coherent, peaceful and reasonable. I wanted him to feel that I would be compliant, and I was. I had only the best intentions in mind.
Unfortunately, good intentions are exactly that, good intentions and nothing more. In reality I was offered 3 choices:
1. Being shot or tased by the Beachwood police.
2. Being charged with failure to comply, which is also a 1st Degree Misdemeanor, for trying to explain my situation while being commanded by Matthew.
3. Take the exact actions that I took in this situation.
As a free gift for my participation in the night’s festivities I was given a free ride to the Beachwood Police Station and jailed while they put the charging documents together and towed my vehicle, which was still legally parked by the way. I felt towing my car was malicious on their part. It was just another expense that I would have to bear as part of the charges filed against me.
I arrived still in handcuffs and attempted to help as much as possible with the booking process. I was photographed and fingerprinted. They took my shoes, suicide risk? I had no idea. The arresting officer asked that I give a statement of my version of the events that transpired, I declined.
I, nor anyone else, has anything to gain, and everything to lose, by giving law enforcement ANY written or verbal statement without the blessing of competent legal counsel. It's akin to stepping into the boxing ring with Mike Tyson as an amateur. Besides, what could I add that the dash cam video didn't already take care of?
If I was such a threat to the public-at-large and had to be arrested and placed in police custody, why was the door to the holding cell was not locked? I was free to walk about and talk to the "booking lady" without a police officer in sight. She was an absolute sweetheart. I'm pretty sure that I annoyed the hell out of her with my whining. We discussed life and the types of people that have caused us trouble and how situations can be created out of nothing. She also gave me some valuable advice that I still have yet to follow.
I have never been arrested for anything in my life until this night. Sure, I've been detained by the police before on a few occasions, but I have never had my rights read to me, cuffs slapped on and my person hauled off to the hoosegow.
The thought of being deprived of my liberties for any period of time is disturbing to me. Add that to the fact that I'm not a big fan of any type of imprisonment and the end result is the worst night of my life, so far. On a positive note, if I think this was the worst night of my life then I've had it pretty good compared to some people.
The "booking lady" took pity on me and brought me ice water from the police lounge and brought me Fritos to snack on. She was very kind to me throughout my entire experience being detained at the Beachwood Police Station.
After I was all checked in the "booking lady" said that I was allowed to use the phone. So, I called my parents and asked that they come to the police station so that I might have a ride home. I was detained in the Beachwood Police Jail for what seemed like an eternity to me, but was actually about 5 hours. I'm a sissy when it comes to jail.
I was finally locked in the holding area for the last approximately 2 hours of my detainment. At the end of my detainment I was called out by Matthew. He told me that he was confiscating my CCW permit and that whether I got it back or not depended on the court. Matthew tried to scare me by telling me that I may be later charged with a felony for possessing an automatic weapon.
CCW permits can only be taken when you are CONVICTED of the crime with which I was charged. This was a violation of due process on their part.
Also, under current Ohio law, any semi-automatic firearm that can be readily converted or adapted to fire more than 31 cartridges, other than .22 variants, without reloading is considered to be an "automatic weapon". What absurd is that by this definition almost every semi-automatic firearm ever made could fall under this statute given the right circumstances. There was a 31 round Glock 9mm magazine full of old ammo in the bottom of my glove box. I put all of my old carry ammo in it for when I go to the pistol range. It was not inserted in my Glock 17. Even if it was, it would not have met the criteria to be an offense under the statute. The Glock 17 could technically fire 32 rounds, but a reload would be necessary for it to be capable of firing the 32nd round. Yet another legal black hole, but case law has shown this to be a non-issue for my situation.
I posted my own bail and my parents and I left the Beachwood Police Station. I didn't have a car and the money that I needed to pay my rent was in the hands of the court.
The next day my father took me to the towing lot to pickup my vehicle. The towing agency took the last of my funds to release my car from impound. I got my car out and went to work and pretended that everything was normal. As an insurance agent I am required to notify my supervisors if I am charged with any crime. It felt awful. I have worked so hard in my company to advance my career and now I have to tell the HR department that I'm charged with "improperly handling firearms in a motor vehicle."
If I was convicted of this offense I could lose my insurance licenses, my livelihood. In this economy that feels like a death sentence for my career.
I turned to my friends over at OFCC, Ohioans For Concealed Carry. They are an organization of pro 2nd amendment folks who have been fighting for our rights in Ohio for the last 10 years. They have helped me with issues in the past and have been an invaluable resource. The attorney that presided over my case was contacted through this organization's website.
I was freaking out. I had never, ever had any charges filed against me for any reason before. The legal system is a scary place. I knew that I didn't do anything illegal and that I didn't belong there. Thankfully, my lawyer could see this as well and decided to fight the charges.
We tried in vain to get the ear of the prosecution, but we were snubbed at every turn. The City of Beachwood prosecutor would not give us the time of day at both the arraignment and the pre-trial to try and hash things out with him. So we were set for trial.
I NEVER waived my right to a speedy trial. In Ohio for a first degree misdemeanor, you must be taken to trial within 90 days. of being charged. The originally scheduled trial date was actually set for the 91st day. We put in a jury demand within a beyond reasonable time frame according to Ohio case law. We showed up for trial June 16 and there was no jury anywhere. We were asked if we'd like go ahead with a bench trial, no thank you. The charges should have been dismissed based on the speedy trial violation. Here's the exact transcript of what judge K.J Montgomery entered in the court journal:
"ORIGINALLY DEF WAS SET FOR BENCH TRIAL TODAY. THIS DATE WOULD BE THE 90TH & FINAL DAY DEF COULD BE BROUGHT TO TRIAL WITHOUT A VIOLATION OF R.C.2945.71 & 72, THE "SPEEDY TRIAL" PROVISIONS. HOWEVER, ON JUNE 3, 2009 DEF CHOSE TO FILE A JURY DEMAND. THIS SINGLE JUDGE MUNICIPAL COURT HEARS APPROXIMATELY 14,000 CASES PER YEAR & BASED UPON THE COURT'S DOCKETS & CALENDER THE EARLIEST DATE FOR WHICH THE COURT HAS SUMMONED JURORS & BLOCKED OUT TWO CONSECUTIVE DAYS TO CONVENE & VENUE & HEAR A CASE ARE JULY 9 & 10TH, 2009. THERE IS ANOTHER CASE PREVIOUSLY SET FOR THAT DATE HOWEVER, IT CAN BE RESET FOR A SUBSEQUENT DATE BY THE COURT. R.C.2945.72 PROVIDES EXTENSIONS TO THE 90-DAYS RULE FOR "[a]any period of delay necessitated by...[a] motion, proceeding, or action made or instuted by the accused." BUT FOR DEF'S ACTION IN FILING A JURY DEMAND THE SPEEDY TRIAL STATUTE WOULD NOT HAVE BEEN AN ISSUE. AS THE FIRST AVAILABE DATE FREE TO COMMENCE A JURY TRIAL IS JULY 9, 2009 THE COURT FINDS THIS DELAY TO BE REASONABLE AND DOES NOT BELIEVE THAT THE DELAY OF 24 MORE DAYS PREJUDICIES THE RIGHTS OF THIS DEF. JURY TRIAL SET FOR JULY 9, 2009 AT 8:30AM. K.J.MONTGOMERY,JUDGE"
I would suggest that she obtain both a spell check utility and employment outside of the legal realm. She also needs to turn off her "Billy Mays" key (caps lock). All accused have a RIGHT to a jury and a SPEEDY trial. I find it disheartening that this concept is lost on people in positions of such power. You don't get to pull the "poor me" defense because your jurisdiction can't handle the case load. Do you like being a revenuer with your own personal fiefdom? Yes? Well then, hire more people, make another courthouse and follow the rules. Also, I find it humorous that I'm being charged for not being "quick enough" and this court can't take me to trial in the legally allotted time frame. Hypocrisy anyone?
I was finally brought to trial at the Shaker Heights Municipal Court before a jury of my peers on 07/09/2009. The trial took all day. There was a substitute judge for some reason, so I didn't get to see the expedient K.J. Montgomery in full swing. First, a motion to dismiss based on speedy trial grounds was filed by my attorney and overruled by the acting judge. We were there from 8:30 am till about 4:30 pm. Jury selection took forever. It is simultaneously one of the most boring and nerve racking experiences I've ever taken part in. Cuyahoga county is of a notoriously anti gun populace and that's where the jury pool came from. Not one person in the entire jury pool had a CCW permit.
The prosecution insisted on placing my firearms on their table in the court room directly in front of the jury for the duration of the trial. There was my Glock 17 and its 3 mags, the Bersa .380cc, an assortment of holsters as well as the boxed and loose ammo that was stored in my glove compartment. I thought this attempt at political theater was pathetic, as it turns I wasn't the only one who felt this way. Mature rational adults are not scared by inanimate pieces of metal and plastic. It's an insult to their intelligence.
What's funny is that the Bersa .380CC confiscated by the police and used by the prosecutor to try and scare the jury was actually a gift for my girlfriend. She did not want to take possession of it until after she fired it herself at the range and was comfortable with it. It stayed in the closed center console of my car until confiscated by the police. It still has yet to be fired by anyone.
In his opening statements the prosecutor tried to paint a picture of a gun crazed idiot(me) who was not only unsafe, but also has no regard for firearm laws. The prosecutor promised what he could not deliver. His whole case was based on "character assassination", the facts of the matter were a secondary concern for him. Every police officer who took the stand stated that I was as polite and absolutely compliant throughout the entire arrest. The dash cam told the rest.
This is how I heard the prosecution’s case (with a little dramatic license added...) :
"Bryan is scary. Bryan owns guns and carries them loaded in his car! Oh my God! Only the police should have guns. Let's throw this monstrously tardy law breaking subject into the pokey!"
In all, there were 3 Beachwood police officers that testified. There were many contradictions between the dash cam footage, written statements by police and their testimony. They stated that a .40 S&W Sig P229 magazine was found in between the seats of my vehicle. I may have had a messy car, but all magazines were ALWAYS kept in the glove box at all times. They used this fib as an excuse for searching the rest of my vehicle. The officers verified to the court in their testimony that ALL of my firearms and accessories were both legally possessed and legally stored.
A retired police Lieutenant from Cincinnati took the stand as an expert witness for the defense. My friend Michael also took the stand as a character witness. The security guard from the apartment complex also testified, but added nothing to the proceedings that wasn't already known by both sides. I did not take the stand as it was not necessary to do so.
The prosecutor was constantly making references to my guns and accessories laid out on his table throughout the trial. He even had my girlfriend take the stand. During her testimony she told the court how that I'm not a scary person and that she has been to the range with me and is familiar with and comfortable being around my firearms.
The case took all day Thursday, but the jury did not start deliberations until the next morning. The jury came back about 1 1/2 hours later and could not come to a unanimous verdict. The instructions given to jury were poor and were based on case law from a traffic stop that didn't fit the circumstances of my case. They asked to read the case from which the judge was referencing in the jury instructions by name. The judge refused to allow them to read it. The judge gave them a pep talk and told them to go try again. My lawyer and I were called back in about an hour and a half later. The jury had reached a verdict:
I could not have been more relieved! It was finally over!
I was stopped by one of the jurors in the parking lot after the trial, a grandmotherly woman who wanted to offer me some sage advice. She said that I need to clean up my car and find a new hobby, something other than firearms. She also said the jury was not impressed with the prosecution having my guns laid out on the table for the entire trial. She said they knew the prosecution was trying to scare them with the display, unfortunately it backfired. Per her advice, I have since cleaned up my car.
A couple hours after the trial I called the Beachwood Police and told them I was coming to recover my property. I went to the Beachwood Police Station armed only a friend and a video camera. After a half hour delay, a detective gave back my property and CCW permit. However, there were a couple items not listed in evidence, but that were confiscated by the police. My Inova X03 flashlight and my dignity. I'd really like them back. Moral of the story? Don't get arrested in Beachwood, they will steal your both your fancy flashlight and your dignity.
This case has cost me quite a bit. I am emotionally, financially and physically drained from this experience. I don't ever want to deal with the legal system as a defendant ever again. The notification laws regarding CCW in Ohio are a legal black hole that any law abiding citizen can fall victim to. I hope that these laws will be changed in the near future to prevent cases like mine from happening ever again. Notification laws are written in such a way that they violate the 2nd, 4th and 5th amendments of the U.S. Constitution as well as Article I Section 4 of the Ohio constitution. Let's get to work on this!
I want to give thanks to all those who have supported me:
I want to thank my attorney for being not only a top notch lawyer, but also a wonderful human being.
I want to thank my family, friends and coworkers for caring for and supporting me throughout my ordeal. Especially my friend Mike who came to testify as a witness.
I want to thank the members of OFCC who provided insight to my situation as well as those who have helped me financially with my legal costs and attended my trial. You have made this so much easier to bear.
A special thanks to retired Cincinnati Police lieutenant Harry Thomas who made the drive all the way from Indiana to serve as an expert witness. He refused to collect fees for serving as an expert witness.