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
4
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
5
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
6
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
8
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
9
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
10
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
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
4
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
5
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
6
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
8
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
9
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
10
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
