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Thread: Federal lawsuit filed against Cleveland Heights police for harassing open carrier

  1. #1

    Post imported post

    In connection with the incident: http://www.youtube.com/watch?v=EQPoBxqas-M

    my attorney filed a civil rights lawsuit against the city of Cleveland Heights. A copy of the complaint is below:


    UNITED STATES DISTRICT COURT
    NORTHERN DISTRICT OF OHIO
    EASTERN DIVISION
    JOSEPH PONIKVAR Jr. ) CASE NO. 1:09-cv-2621)
    )
    Plaintiff )
    ) JUDGE:
    -vs- ))
    THE CITY OF CLEVELAND HEIGHTS )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 ))
    C O M P L A I N T
    and ) (Jury Trial Demanded)
    )
    ROBERT C. DOWNEY, )
    CITY MANAGER, DIRECTOR OF PUBLIC SAFETY )
    CITY OF CLEVELAND HEIGHTS )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    )
    and ))
    CITY OF CLEVELAND HEIGHTS )
    DIVISION OF POLICE )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    )
    and ))
    MARTIN G. LENTZ, CHIEF OF POLICE )
    DIVISION OF POLICE )
    CITY OF CLEVELAND HEIGHTS )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    )
    and ))
    OFFICER(S)/PATROLMAN JOHN DOE 1-5 )
    REAL NAME UNKNOWN )
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 1 of 11
    2
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    one or more individuals employed by and/or acting with )
    the authority to act as a uniformed law enforcement officer )
    on behalf of the Ohio Political Subdivision, commonly )
    known as Cleveland Heights and who engaged )
    in the seizure and detention, by threat of deadly force )
    of the person and possessions of Joseph Ponikvar Jr. )
    on or near Mayfield Road within the boundaries )
    of the City of Cleveland Heights, on July 4, 2009 )
    )
    and ))
    OFFICER(S)/PATROLMAN JANE DOE 1-3 )
    REAL NAME UNKNOWN )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    one or more individuals employed by and/or acting with )
    the authority to act as a uniformed law enforcement officer )
    on behalf of the Ohio Political Subdivision, commonly )
    known as Cleveland Heights and who engaged )
    in the seizure and detention, by threat of deadly force )
    of the person and possessions of Joseph Ponikvar Jr. )
    on or near Mayfield Road within the boundaries )
    of the City Cleveland Heights, on July 4, 2009 )
    )
    and ))
    JOHN ROES 1-5 REAL NAMES UNKNOWN )
    40 SEVERANCE CIRCLE )
    CLEVELAND HEIGHTS, OH 44118 )
    employed by and/or acting with the authority )
    to act as a uniformed law enforcement officer )
    on behalf of the Ohio Political Subdivision, commonly )
    known as Cleveland Heights and who engaged )
    in the forcible seizure and detention, by threat )
    of deadly force of Joseph Ponikvar Jr., and/or )
    were engaged in the promulgation of )
    and/or enforcement of policy for the )
    Cleveland Heights Division of Police )
    )
    Defendants )
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 2 of 11
    3
    INTRODUCTION
    1. This is an action for damages and injunctive relief for false imprisonment, battery and
    violation of the civil rights of the Plaintiff, Joseph Ponikvar Jr. brought against the City of Cleveland
    Heights, the Cleveland Heights Police Department (hereinafter "CHPD"), the Cleveland Heights City
    Manager/Director of Public Safety Robert C. Downey, the City of Cleveland Heights Division of
    Police, the Cleveland Heights Chief of Police Martin G. Lentz, the Defendants, Officer(s) /Patrolman
    John Doe(s) Real Names Unknown, (hereinafter collectively Defendant, “John Doe”), the
    Defendants, Officer(s)/Patrolman Jane Doe Real Names Unknown , (hereinafter, Defendant, “Jane
    Doe”), and Defendant(s) John Roe(s) Real Names Unknown, (hereinafter, Defendant, “John Roe”),
    all in the employ and/or acting with the authority and/or permission and/or with the approval and/or
    with ratification of the City of Cleveland Heights and/or the CHPD and otherwise, all of whom
    participated in the wrongful and unlawful acts against the Plaintiff described below and/or
    promulgated and implemented or carried out the policies, training and practices that were a
    proximate cause of the wrongful and unlawful acts and harm to the Plaintiff. Joseph Ponikvar, Jr.,
    hereinafter (“Plaintiff”) as shall be described below.
    2. Plaintiff, is a competent adult, a citizen of the United States and a resident of
    Cuyahoga County, Ohio under no disability licensed to carry a concealed handgun pursuant to §
    2923.125 and like all such persons, authorized to openly carry a handgun pursuant to § 9.68 Revised
    Code and § 2923.126(A).
    3. Defendant, the City of Cleveland Heights is a municipality located within Cuyahoga
    County organized and operating pursuant to its Ohio Charter and subject to Ohio law and the US.
    Constitution pursuant to the 14th amendment.
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 3 of 11
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    FACTS
    4. The Plaintiff incorporates all the forgoing facts, statements and allegations as if fully
    rewritten herein.
    5. That on or about July 4, 2009 the Plaintiff was traveling as a pedestrian on the
    sidewalk, within the public right of way adjoining Mayfield Road in the City of Cleveland Heights,
    in an entirely lawful fashion.
    6. That pursuant to the Plaintiff’s rights to engage in free speech including symbolic
    speech, under the First Amendment to the US Constitution by operation of the 14th Amendment; OH.
    Const. Art. I, § 11; in order to educate the public to the right to “open carry” handguns in Ohio, as
    well as the 2nd Amendment of the US. Constitution and §§ 9.68, 2923.126(A), 2923.125 Revised
    Code and the common law, the Plaintiff chose to carry upon his person in a holster in open view to
    the public, a handgun.
    7. That upon information and belief, the City of Cleveland Heights Division of Police,
    received a communication that a person matching Plaintiff’s description had been observed walking
    on or near Mayfield Road wearing a handgun in open view.
    8. That based upon the above, the City of Cleveland Heights and/or City of Cleveland
    Heights Division of Police, (hereinafter collectively CHPD) forwarded such information, dispatched
    or otherwise directed Defendants John Doe one or more armed, uniformed Cleveland Heights Police
    officers(s) pursuant to their job duties and responsibilities to the area in CHPD vehicles, which were
    in conspicuous law enforcement livery and explicitly marked “POLICE” one of which was further
    identified as Unit, 1761.
    9. That Defendants John Doe located the Plaintiff, but did not observe any illegal or
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 4 of 11
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    other behavior which could provide any basis upon which any rational inferences drawn from those
    facts could give rise to a reasonable suspicion that any crime had been committed, or was being
    committed by any person, let alone Plaintiff.
    10. That despite the foregoing, Defendant John Doe without further inquiry, investigation
    or lawful basis, while still in a CHPD vehicle, identified himself as a police officer and forcibly
    repeatedly ordered Plaintiff to lay face down on the ground.
    11. Plaintiff immediately complied with the directive and as required, lay face down on
    the sidewalk whereupon Defendant, John Doe held Plaintiff at gunpoint, seized Plaintiff’s handgun
    and shackled Plaintiff by unlawfully touching Plaintiff’s person and seizing both of Plaintiff’s arms,
    pulling them behind his back, affixing handcuffs to both wrists requiring Plaintiff to once again lie
    face down on the ground with his hands behind his back, followed by an illegal and unauthorized
    search of Plaintiff’s person and belongings.
    12. That even after his firearm had been seized and after the arrival of other individuals
    who identified themselves as officers within the scope of their employment and authority with the
    CHPD including at least one other John Doe Defendant and at least one additional Defendant, Jane
    Doe. These Defendants ensured further attention was drawn to Plaintiff’s unlawful detention by the
    use of the emergency lights and sirens of the vehicles CHPD supplied for their use, and ratified and
    participated in Plaintiff remaining in shackles on the ground held on public display while he
    continued to be involuntarily held against his will, forbidden to move or leave and required to remain
    in custody of the Defendants for approximately twenty minutes while the Defendants satisfied
    themselves that as all the facts at the scene indicated at the outset, there was no reason to infer
    Plaintiff was under any disability nor any basis that could give rise to a reasonable suspicion that any
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 5 of 11
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    crime had been committed by anyone let alone Plaintiff and therefore no basis in law to confront
    Plaintiff, threaten him with deadly force, seize him, search him or detain him.
    13. That Plaintiff was expressly advised by at least two CHPD officers, including
    Defendant John Doe and Defendant Jane Doe, that the sole reason he was threatened with deadly
    force, forced to lay face down on the ground in public, required to submit to being shackled and
    detained against his will, was because he had openly carried a “gun” in public.
    14. That when Plaintiff attempted to educate the Defendants with respect to the state of
    the law, he was alternately ignored; advised that as police officers they knew the state of the law; that
    it was illegal to openly carry a firearm in public; that as police officers the Defendants’ were required
    by the CHPD as part of their responsibilities as police officers and or authorized to confront, disarm,
    shackle and detain any individual who was observed to be in possession of a firearm until such time
    as Defendants were satisfied that he was not under a disability or engaged in some unlawful conduct;
    and finally Plaintiff was directed to cease talking.
    15. That at no time pertinent hereto could any Defendant herein reasonably believe that
    the Plaintiff was violating any law of the United States, the State of Ohio, or the City of Cleveland
    Heights.
    16. That at all times pertinent hereto, all the Defendants were acting under the color of
    state law.
    17. That at all times material hereto, the Defendants were acting in concert with one
    another.
    18. The wrongful, illegal, tortious actions of the Defendants including but not limited to
    the violation of Plaintiff’s Civil rights, although accomplished by the individual police officers
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 6 of 11
    7
    present, Defendants, John and Jane Doe, was also a direct product of certain constitutionally infirm
    policies, practices and customs implemented, maintained and tolerated by the CHPD and the City
    of Cleveland Heights with respect to police and city policies, priorities, tactics, rules, investigative
    practices, training, supervising, discipline including a culture which fostered contempt and disregard
    for certain rights of citizens guaranteed under including but not limited to: §9.68, §2923.125 and §
    2923.126(A) Ohio Revised Code; the First, Second and Fourth Amendments to the U.S. Constitution
    by operation of the 14th Amendment; Oh. Const. Art. I, § 11; all as affected and/or under the
    direction of the Cleveland Heights City Manager/Safety Director Robert C. Downey and Chief of
    Police Martin G. Lentz, as well as the Defendants, identified as John Roe real names unknown, said
    defendants being charged with the regulation of the CHPD and its employees and agents as well as
    the promulgation and enforcement of practices, training education and policy for the CHPD.
    19. That such de facto policies and pervasive practices and customs persisted with either
    actual or constructive knowledge of the deficiencies therein and Defendants’ acquiesced in,
    encouraged, ratified and condoned such policies, practices and customs and were deliberately
    indifferent to their foreseeable effects and conjunctive therewith, represent the deliberate and/or
    reckless indifference of the Defendants to the physical safety, constitutional and civil rights of the
    inhabitants of the City of Cleveland Heights and same was a proximate cause of Plaintiff's injuries
    and damages.
    20. The City of Cleveland Heights and the CHPD either explicitly or implicitly authorized
    and ratified the misconduct and wrongful acts perpetrated upon the Plaintiff, supporting the fact that
    the conduct of the Defendants herein was not a singular event or aberration, but rather one in a long
    series of events and policy decisions leading up to incident which is the subject of this litigation.
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 7 of 11
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    COUNT I
    21. The Plaintiff incorporates all the forgoing facts, statements and allegations as if fully
    rewritten herein
    22. At all times material hereto, the Defendants were acting under color of state law.
    23. During the entire encounter between the Plaintiff, and the Defendants described
    above, the Defendants could never have possessed a reasonable belief that there was criminal activity
    afoot, that Plaintiff had committed a crime, or that Plaintiff was about to commit a crime.
    24. During the encounter with the Plaintiff, the Defendants unreasonably and unlawfully
    seized the Plaintiff through a threat of deadly force occasioned by pointing a firearm at him, forcing
    him to lay down on the ground, forbidding him from leaving Defendants’ custody, grabbing
    Plaintiff's arms, placing him in handcuffs, taking his handgun and engaging in an unlawful search
    of Plaintiff and his belongings.
    25. All the foregoing actions of Defendants were undertaken against Plaintiff without
    reasonable suspicion of a crime having taken place and without probable cause to justify the search
    or the seizure.
    26. The Defendants' actions set forth above violated the Plaintiff's rights protected by the
    Fourth Amendment to the United States Constitution as well as the Ohio Constitution Art. I, § 14
    by operation of § 42 U.S.C 1983 and §525.13 Revise Code for violation of Plaintiff’s civil rights
    including but not limited to, unreasonable searches and seizures.
    COUNT II
    27. The Plaintiff incorporates all the forgoing facts, statements and allegations as if fully
    rewritten herein
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 8 of 11
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    28. That the Defendants by seizing and holding the Plaintiff unlawfully in restraint of his
    right to physical liberty without any privilege therefore committed the tort of false imprisonment
    upon the Plaintiff.
    COUNT III
    29. The Plaintiff incorporates all the forgoing facts, statements and allegations as if fully
    rewritten herein
    30. That the wrongful acts of the Defendants herein in causing the Plaintiff to believe that
    he was in imminent fear of being subjected to deadly force, by having a loaded firearm pointed at
    him, followed by the unlawful and offensive touching of his person constitutes assault followed by
    battery.
    COUNT IV
    31. The Plaintiff incorporates all the forgoing facts, statements and allegations as if fully
    rewritten herein
    32. The Defendants’ actions as described above were an unlawful infringement of
    Plaintiff’s right to engage in free speech including symbolic speech, by engaging in wholly legal
    conduct and were an intentional and flagrant attempt to suppress his effort to educate the public of
    their right to “open carry” handguns in Ohio. The Defendants’ actions infringed upon Plaintiff’s
    rights under the First Amendment to the U.S. Constitution by operation of the 14th Amendment; OH.
    Const. Art. I § 11; as well as in derogation of Plaintiff’s rights under the 2nd Amendment to the US.
    Constitution and §§ 9.68, 2923.126(A), 2923.125 Revised Code and the common law as well as in
    violation of Plaintiff’s attempt to exercise his right to free speech, pursuant to § 42 U.S.C 1983 and
    § 525.13 Revise Code.
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 9 of 11
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    33. Plaintiff’s injuries and damages were the reasonably foreseeable product of the
    Defendants’ activities in concert for the establishment, maintenance and enforcement of a
    widespread atmosphere of overt disregard for the rights of the citizenry, which was fostered,
    encouraged and tolerated by the City of Cleveland Heights and throughout the CHPD as created by
    the intentional or reckless failure to train its police officers with respect to the state of the law and/or
    the abject failure to punish willful ignorance of the state of the law even though same had not
    changed for a period of time, well in excess of one year.
    34. Plaintiff sues Defendants, John Doe, Jane Doe and John Roe because he could not
    determine the real names of said Defendants.
    WHEREFORE, the Plaintiff, demands judgment against all the Defendants herein, jointly
    and severally, for Compensatory Damages in an amount in excess of $150,000.00 that will
    adequately and fairly compensate him for his losses, Punitive Damages against such Defendants
    where permitted by law, in an amount in excess of $150,000.00, that will succeed in deterring such
    Defendants from future misconduct, reasonable attorneys fees, interest at the maximum rate allowed
    by law and costs.
    s/ Robert N. Stein
    ROBERT N. STEIN -
    Attorney for Plaintiff, Joseph Ponikvar

    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 10 of 11
    11
    JURY DEMAND
    A trial on all issues by the maximum number of jurors permitted by law is hereby requested.
    s/ Robert N. Stein
    ROBERT N. STEIN -
    Case 1:09-cv-02621 Document 1 Filed 11/06/09 Page 11 of 11

    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

  2. #2
    Regular Member Beau's Avatar
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    Way to stick with it. I hope this was your first and last negative encounter.
    Colorado Gun Owners - COGO
    http://www.ColoradoGunOwners.com

    A discussion forum for Colorado Gun Owners.

    Colorado Firearm law.
    http://www.lexisnexis.com/hottopics/colorado/
    Lexis Nexis: Colorado law pertaining to firearms.
    Title 18, Article 12

  3. #3
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    Good luck with your court endeavor! Hopefully this case ends nonsense like this that you went trough.

  4. #4
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    OCers in Ohio have gotten harrassed on a regular basis for a long time in Ohio.

    The sad thing is, for many it's just accepted as part of OC.

    Of course sometimes it goes to far and someone will whine about but not want to take legal action.

    FF is only the second one that I know of to file a lawsuit, most just role over and say slap me again sir.

    I hope he wins.

    :celebrate

  5. #5
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    Go Get 'em, Freedom Fighter!!!!

  6. #6
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    Not a lot of things can make me cry. I'm not ashamed to admit that stuff like this brings me right to tears.

  7. #7
    Regular Member FiremanJoe's Avatar
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    There are a few things that sometimes makes me not proud to be from Ohio, idiot gun grabbbers who get the only cops shoul;d have guns are one of them....

    Hang in there JOE!

    Met Joe in Northwood Ohio at a OC walk...




    Favorite recent Quote:
    "As long as I'm prosecutor, if someone comes into a store with a gun and I've said it before and I'll say it again they have forfeited their right not to be shot,"
    Hamilton County, Ohio - prosecutor; Joe Deters

  8. #8
    Regular Member Carcharodon's Avatar
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    I hope your lawyer succeeds in taking these "lawmen" to the cleaners for their abuse of you and their disdain for your rights.
    "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks."
    Thomas Jefferson

  9. #9
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    Right on man, watching the video (such as it is) now. Totally uncalled for actions by undertrained officers who didn't know how to handle the situation and just bullied their way through.

    I'm glad you filed. Best of luck with the lawsuit.

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    Arghg, Paragraphs! I need paragraphs!

  11. #11
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    As a fellow Ohioian, I Wish you good luck.

    But remember, NEVER TALK TO THE POLICE. I know I commented on the video before but you talked way too much. Keep mouth closed, only answer what you have to answer, and nothing more. Let the police dig their own grave.

  12. #12
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    Thank you for paying the price sir I know this must be hard for you and your family to go through but it is for a worthy cause. Ill be praying for you and not just for you but for the others who have to endure the same mistreatment from Law Enforcement who know better.

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    The Civil Lawsuit made some great reading. Thanks for posting it. Good luck with the case, I will be following it.

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    Joe, in down town Cleveland May 30, 2009. Joe organized this walk in response to the unfare treatment of Greg Llewellyn. 10 of us showed up. With 5 of the bravest kids you would ever want to meet.

    http://ohioccwforums.org/viewtopic.php?f=21&t=22441

    OC- cleveland http://ohioccwforums.org/viewtopic.p...5&start=90 [img]file:///C:/Users/jeff/AppData/Local/Temp/moz-screenshot.jpg[/img][img]file:///C:/Users/jeff/AppData/Local/Temp/moz-screenshot-1.jpg[/img]

  15. #15
    Regular Member simmonsjoe's Avatar
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    Good Luck!

    Way to stand up for Liberty with this lawsuit.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

  16. #16
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    15. That at no time pertinent hereto could any Defendant herein reasonably believe that the Plaintiff was violating any law of the United States, the State of Ohio, or the City of Cleveland Heights.


    City of Cleveland Heights City Ordinance:

    551.12 PROHIBITIONS AGAINST CARRYING A FIREARM.

    (a) No person, unless exempted by any of the provisions of this chapter, shall transport in any vehicle, or carry on or about his person upon the streets and public places of the City, any handgun without having in his possession an identification card required by this chapter, or the nonresident, an identification card, permit or authorization, if any, issued by the proper authorities of the place of his residence.

    (b) No person, unless exempted by any of the provisions of this chapter, shall transport in any vehicle, or carry on or about his person upon the streets and public places of the City, any handgun or other firearm, unless such handgun or other firearm is at all times unloaded and encased.

    (c) If, in any case brought pursuant to subsection (b) hereof, it is proved by way of affirmative defense that the person charged possessed all required Federal, State and City permits, licenses, identification cards and registration cards, that at the time of the offense charged such person was engaged in a lawful business or calling, and that the facts and circumstances existing at the time justified a prudent person in carrying a loaded and/or unencased handgun or other firearm for the defense of person, family or property, the person charged shall be acquitted.

    (Ord. 51-1985. Passed 5-6-85.)




    Just a point. Not saying the law is constitutional but....




  17. #17

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    That law in Null and Void because of Statewide Preemption.

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    Good luck!

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    freedom_fighter777@hotmail.com wrote:
    That law in Null and Void because of Statewide Preemption.
    It has to be challenged first and ruled upon in that manner. It doesn't happen just because someone files a lawsuit.

    Also could you give a source and how the preemption applies, I know what it is but I can't find anything about the state law.

  20. #20

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    Interested in Count 4: why did your lawyer decide to go with the "symbolic speech" count? Was what you did more to make a point or to provide for personal defense?

    Best!

  21. #21
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    $150,000 huh? I thought this was about civil rights.

  22. #22
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    TheFuzz wrote:
    $150,000 huh? I thought this was about civil rights.
    $1 encourages these traitorous victim disarming bastards to keep on violating our civil rights. Bankrupt them and then they'll stop.

  23. #23
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    They are suing the government, the only people that pay are you and I.

    But my point is that it takes away from the merit of the case. How much better would it look from the outside if he wanted only his lawyer fees covered?

  24. #24
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    TheFuzz wrote:
    $150,000 huh?* I thought this was about civil rights.*
    I read it as being two sums of $150,000 one for compensation and one for punitive purposes.

    Anyone want to weigh in on that? At first glance to me it seems like he's asking for $300,000.

    WHEREFORE, the Plaintiff, demands judgment against all the Defendants herein, jointly
    and severally, for Compensatory Damages in an amount in excess of $150,000.00 that will
    adequately and fairly compensate him for his losses, Punitive Damages against such Defendants
    where permitted by law, in an amount in excess of $150,000.00, that will succeed in deterring such
    Defendants from future misconduct, reasonable attorneys fees, interest at the maximum rate allowed
    by law and costs.

  25. #25
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    TheFuzz wrote:
    They are suing the government, the only people that pay are you and I.
    Really, you elected them?

    As it should be. If the electorate doesn't exercise due diligence in electing/unseating statists, then they must bear their share of the responsibility.

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