Miscellaneous Case Archives

Fourth Amendment Excessive Force -- Firearms
In Miles Lund v. Salt Lake City Corporation et al., Civil No. 2:07-CV-0226BSJ (December 4, 2008), the court denied a motion for summary judgment filed by police officers sued for using excessive force in violation of an individual's Fourth Amendment rights. The officers apparently believed that Lund, a park visiter feeding ducks, had a gun after to a false report by another park visitor. Although Mr. Lund cooperated with police officers, raising his hands as far as he was able (informing the officers he was physically unable to put it his right hand on his head and physically unable to kneel to the ground), the police officer pointed guns at Mr. Lund and tackled the individual from behnd, causing Mr. Lund to strike his head and resulting in surgery. The court found that under the facts, the officer was not protected by qualified immumity and the right to be free from execssive force was "clearly established" under Conn v. Gabbert, 528 U.S. 286 (1999). A law enforcement officer may not use force on, including pointing guns at, a compliant suspect already under the officer's control and not resisting detention or trying to flee. By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution.

Home Rule -- Preemption: Firearms
In Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, the Ohio Supreme Court found that Ohio's statute permitting persons to obtain permits and carry concealed weapons on public property outside of public buildings was a law of general application preempting an attempt by the city of Clyde to prohibit the carrying of firearms in a city park. Because the Clyde ordinance prohibiting firearms in teh city park was an execercise of its police power, its rights of home rule did not supersede the state-wide concelaled carry regulation what is a law of general application as specficially stated in RC 9.68(A): [T}he general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession , ... transport, storage, carrying, ... or other transfer of firearms."

Wrongful Life Suit OK'd
The Ohio Supreme Court in Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc., 108 Ohio St.3d 494, 2006-Ohio-942, approved a cause of action for "wrongful life," but limited the amount of damages to the costs of the pregnancy and birth. In Schirmer, the physician allegedly committed malpractice in failing to diagnose conditions likely to lead to an unhealthy, abnormal baby, so the parents could not decide to have an abortion.  In the court's words, "Parents of an unhealthy child born following negligent genetic counselling or a negligent failure to diagnose a fetal defect or disease may bring a medical malpractice action for those costs arising from the pregnancy and birth of the child."

Public Records - Attorneys' Fees
In State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d, 2006-Ohio-1215, the Ohio Supreme Court held that the Cincinnati Health Department's lead assessment reports and lead citation notices issued to property owners were public records and not HIPAA protected. The Court denied an award of attorneys' fees to the Cincinnati Enquirer who had sought those records under RC 149.43(C), because this was a case of first impression, and the government agency's refusal to release records, although ultimately wrong, was a rational stance on an unsettled issue.

No Appeal from Refusal to Dismiss Third Party Complaint
In State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, the Supreme Court reversed a court of appeals that had allowed an appeal by the Village of Oakwood after being denied dismissal of a third party complaint. Based upon alleged governmental immunity, Oakwood sought dismissal of the third party complaint brought for contribution or indemnity for a claim resulting from business fire. The Supreme Court said that the refusal to dismiss the third party complaint could not be appealed because it was not a final appealable order. It would have been a final appealable order under a recent amendment to RC 2744.02(C) if the order had denied the village the benefit of an alleged governmental immunity, but the trial court gave no reason for refusing the dismissal.

Constitutional Law
Two Ohio courts of appeal have reached different conclusions on the constitutionality of Ohio's domestic violence laws under Ohio's 2004 Marriage Amendment, Article XV, Section 11, of the Ohio Constitution. In State v. Ward, 2006-Ohio-1407, decided March 24, 2006, the 2d District Court of Appeals held that Ohio's Marriage Amendment, renders unconstitutional the application of Ohio's domestic violence laws to persons living as a spouse but unmarried. This decision is contrary to the following other decisions in Ohio: State v. Rodgers (10th District, 3/30/06), 2006-Ohio-1528; State v. Brown (5th Dist., 3/13/06), 2006-Ohio-1181; State v. Rexroad, 2005-Ohio-6790, State v. Nixon, 2006-Ohio-72, and State v. Carswell, 2005-Ohio-6547. With a conflict in the districts, the issue appears ripe to be decided by the Ohio Supreme Court. In the meantime, prosecutors in the Second District may still charge miscreants with assault but not domestic violence.
Update: The United States Supreme Court in Obergefell v. Hodges, 576 U.S. ___ (2015) held Ohio Defense of Marriage Amendment unconstitutional insofar as it prevents homosexual marriage.

Municipal Law
In Parker v. Upper Arlington, 2006-Ohio-1649, the 10th District Court of Appeals found that Upper Arlington was entitled to governmental immunity for the design and location of its sidewalk and stop sign at an intersection. A personal injury plaintiff may not disguise an action for damages as an action for declaratory judgment to escape the governmental immunity statute which bars damage actions.

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