Monthly Archives: July 2011

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

Appellate Court of Illinois, Second District.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Donald R. BRAUSAM, Defendant-Appellant.

Gen. No. 66-149 M.

 

June 14, 1967.

 

Prosecution for drag racing. From a judgment of conviction of the Circuit Court, Lake County, Eugene T. Daly, J., the defendant appealed. The Appellate Court, Davis, P.J., held that the defendant, who was charged under an unverified uniform traffic ticket and complaint, waived the failure to verify complaint by proceeding to trial without objection to form of complaint, and that the complaint, which merely charged defendant with drag racing in violation of specified statute and gave time and place of offense, was sufficiently precise to apprise accused of nature and elements of offense charged.

 

Affirmed.

Key Issues Decided:

Although code of criminal procedure requires that a complaint be verified in order to sustain a criminal prosecution, lack of verification does not affect jurisdiction of the court. S.H.A. ch. 38, par. 111-3(b).

The right to be charged by a properly verified complaint can be waived and is waived unless accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. S.H.A. ch. 38, par. 111-3(b).

Defendant charged with drag racing by an unverified uniform traffic ticket and complaint waived right to be tried upon a verified complaint where no pretrial motion was made and defendant proceeded to trial without objection to form of complaint. S.H.A. ch. 16, §§ 81-85; ch. 38, § 111-3(b); ch. 95 1/2 , § 145.1; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Although defendant contended that complaint failed to set forth nature and elements of the offense charged as required by statute, reviewing court was required to decide only if complaint was so defective that it did not charge an offense, where that was issue raised by defendant’s motion in arrest of judgment. S.H.A. ch. 38, § 111-3(a).

The purpose of statute and constitutional provision requiring complaint to set forth nature and elements of offense charged is to make certain that accused will be adequately informed of nature and elements of offense charged against him so that he may prepare his defense and protect himself from double jeopardy. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Whether accused is adequately informed of nature and elements of the offense charged must be determined by substance of charge and not by mere technicalities of its language. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Statutory requirement that complaint set forth nature and elements of offense charged is met if indictment, information or complaint charges offense in language of statute when that statute sufficiently particularizes offense so that defendant is notified with reasonable certainty with what he is charged. S.H.A. ch. 38, § 111-3(a).

A charge solely in language of statute is insufficient only where statute does not describe acts which constitute crime or where by generality of statute it may embrace acts which statute does not intend to punish. S.H.A. ch. 38, § 111-3(a).

Legislative enactments providing procedures for getting persons into court without necessity and inconvenience of immediate arrest, and court rule implementing such procedures, being pari materia were to be construed together in determining intent of Legislature. S.H.A. ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Primary object of statutory construction is to ascertain and give effect to legislative intent, and court should consider reason or necessity for enactment, contemporaneous conditions, existing circumstances and object sought to be obtained by statute.

Court was required to presume that statutes and court rule relative to procedures for judicial processing of minor offenses related to one subject and were governed by one policy and spirit and that Legislature intended the several statutes and court rule to be consistent and harmonious. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Traffic ticket and complaint charging defendant with drag racing in violation of specified statute was sufficiently precise to apprise accused of nature and elements of offense charged. S.H.A. ch. 38, § 111-3(a), ch. 95 1/2 , § 145.1.

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors, where accused is brought into court by notice or summons, and without necessity of arrest, need not be set forth with the same technical precision required in an indictment, verified complaint or information. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors must inform accused of nature and elements of the offense with which he is charged, but charge may be simply stated by reference to commonly used name for offense along with reference to statute or ordinance allegedly violated and time and place of violation. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

If charge in traffic and other minor criminal cases sets forth nature and elements of offense charged against accused so that he may prepare his defense and be assured of constitutional privilege against double jeopardy statutory provision requiring that charge set forth nature and elements of offense has been complied with under informal procedure for traffic violations, quasi criminal cases and other misdemeanors. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Case:

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment *358 should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors,**536 does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without*359 the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The *360 right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The **537 traffic ticket and complaint charged the defendant with committing the offense of ‘drag racing in violation of section 48.1 of the U.A.R.T., on July 25, 1966, at 9:35 P.M., at North Avenue-west of Trevor Rd. in Lake County, Illinois.’ (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

Section 111-3(a) of the Criminal Code (Ill.Rev.Stat.1965, ch. 38, par. 111-3(a)) sets forth the requisites for a valid criminal complaint:

‘A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the time and place of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by *361 any name or description by which he can be identified with reasonable certainty.’

Defendant’s contention is that the requirements of sub-paragraph (3) above are not met, as the necessary element of racing or competition is not alleged.  In answering defendant’s contention, we must keep in mind that the question before this court is whether the complaint was so defective that it did not charge an offense.  That was the issue raised by defendant’s motion in arrest of judgment and it is all that we are called upon to decide.   People v. Blanchett, 33 Ill.2d 527, 530, 531, 212 N.E.2d 97 (1965).

The purpose of section 111-3(a) of the Criminal Code, as that of section 9 of Article II of the Illinois Constitution, S.H.A., is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense.   People v. Griffin, 36 Ill.2d 430, 432, 223 N.E.2d 158 (1967); People v. Peters, 10 Ill.2d 577, 580, 141 N.E.2d 9 (1957); People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967); People v. Laczny, 63 Ill.App.2d 324, 330, 331, 211 N.E.2d 438 (1965).  Whether this objective is attained and the requirements of the section met must be determined by the substance of the charge and not by mere technicalities of its language.   People v. Billingsley, 67 Ill.App.2d 292, 299, 213 N.E.2d 765 (1966). ‘It is clear that many of the old pleading technicalities are no longer required under the existing law. Centuries ago, the punishment was severe and the courts attempted to compensate by strictly construing the pleading requirements. The main requirement today is simplicity in order that the accused will understand the charge against him.’   People v. Blanchett, supra, 33 Ill.2d 532, 533, 212 N.E.2d 100.

*362It is sufficient for the purposes of section 111-3(a), and the safeguard it is designed to protect, that the indictment, information or complaint charge the offense in the language of the statute when that statute sufficiently particularizes the offense so that the defendant is notified with reasonable certainty with what he is charged.   People v. Sims, 393 Ill. 238, 241, 66 N.E.2d 86 (1946); People v. Billingsley, supra, 67 Ill.App.2d 298, 213 N.E.2d 765. It is only where the statute does not describe the acts which constitute the crime. ( People v. Griffin, supra, 36 Ill.2d 432, 433, 223 N.E.2d 158; People v. Green, 368 Ill. 242, 254, 255, 13 N.E.2d 278, 115 A.L.R. 348 (1938)), or where, by the generality of the statute it may embrace acts which the statute does not intend to punish, that a charge, solely in the language of the statute, is not sufficient.   People v. Peters, supra, 10 Ill.2d 580, 581, 141 N.E.2d 9; People v. Billingsley, supra, 67 Ill.App.2d 299, 213 N.E.2d 765.

**538 However, cases arising under the U.A.R.T., seldom come before reviewing courts.  Section 137 of the Act provides that it is a misdemeanor for any person to violate any of the provisions of the Act, unless by said Act, or other law of this State, such violations are declared to be a felony.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 234.) Ordinarily, the amount of the fine is small and the offense is not of a serious nature.  Such circumstance is true with reference to certain other misdemeanors and quasi-criminal offenses.

To expedite the handling of such cases, the Supreme Court adopted the Rule in question which sets forth the form of the ‘Illinois Uniform Traffic Ticket and Complaint’ and the Rule related generally to traffic cases, quasi-criminal cases and certain misdemeanors. Contemporaneously, the legislature provided ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A. ch. 38, pars. 107-11, 107-12 Committee Comments.) It also designated officers to let persons charged with quasi-criminal offenses and misdemeanors to bail and to accept*363 and receipt for fines on pleas of guilty in minor offenses, in accordance with schedules established by Court Rule. (Ill.Rev.Stat.1965, ch. 16 pars. 81-85 incl.) The Court Rule which the legislature referred to was the Rule heretofore cited.

This Rule and these legislative enactments indicate that a less formal procedure is necessary in the handling of such minor offenses, whereby the person accused may get into court by the traffic ticket, notice to appear or by summons, and without the necessity of arrest. If the person does not obey the notice or summons, then an arrest warrant may issue.

The statement of the issue before us for decision, and the statutes and Court Rule involved, disclose that the overall legislation and Rule are not without ambiguity.  The legislative enactments and the Court Rule, being in pari materia, should be construed together to determine the intent of the legislature.  The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes.   People ex rel. Krapf v. Hayes, 13 Ill.2d 143, 147, 148 N.E.2d 428 (1958).  We must presume that the several statutes and the Court Rule relative to procedures for the judicial processing of minor offenses within the area herein defined, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes and the Court Rule to be consistent and harmonious.   Scofield v. Board of Education, 411 Ill. 11, 20, 103 N.E.2d 640 (1952); Ashton v. County of Cook, 384 Ill. 287, 298, 51 N.E.2d 161 (1943).

The population increase in Illinois over the past decade, a deeper understanding of the use of sanctions in law enforcement, and the increase in the use of automobiles over our improved highways in an effort to meet the *364 necessity for travel in our complex and growing society are, in part, the reason for getting persons into court without the necessity and inconvenience of an arrest, for letting persons charged with traffic violations, other misdemeanors and quasi-criminal offenses to bail, and for the informal receipting for fines on pleas of guilty in such minor offenses.

From the pertinent legislation and rule, we believe that the legislature intended to create, within our criminal procedure, an expeditious method for the enforcement of traffic offenses, misdemeanors and quasi-criminal offenses, which would relax the rigidity of the requirements of our criminal law for the convenience of the individual, without an impingement upon his rights and without sacrifice of the welfare of society generally. We believe that within the **539 area thus defined by these legislative enactments and the Court Rule, the legislative purpose should be effectuated; and that the principles of construction must not be too literal.

The complaint charged the defendant with ‘drag racing’ as heretofore specified. Under our construction of the aforesaid pertinent statutes and the Court Rule, we find that the charge was sufficiently precise to apprise the accused of the nature and elements of the offense charged. Section 48.1 of the statute clearly defines the meaning of ‘drag racing’ as used in the complaint, as follows:

‘For the purpose of this Section ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State.’

*365 The charge of ‘drag racing’ does not include the multitude of different acts which would leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of ‘reckless driving.’   People v. Griffin, supra, 36 Ill.2d 431, 432, 223 N.E.2d 158; People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967) and cases cited therein. Under the ‘reckless driving’ charge, the nature and elements of the offense are left to doubt.

However, the offense of ‘drag racing’ as defined by the statute is not fragmented into many separate and different acts, any one of which may constitute the offense. The statute defines one total offense, the essence of which is the act of competing or racing on any street or highway. We believe that the charge as specified on the U.A.R.T. form clearly apprised the accused of the particular acts on which the charge was based. We hold that the traffic ticket and complaint was not so defective as to fail to charge an offense.

While a person accused of a traffic violation has every right to be informed of the nature and elements of the offense charged against him, we are not unmindful of the circumstances under which traffic tickets are normally issued, and we recognize that they are drafted by laymen and may not be drawn with the care and precision of an indictment, information or complaint charging a more serious offense.

The charge made on the Uniform Traffic Ticket and Complaint form and the charge in quasi-criminal cases and misdemeanors where the accused is brought into court by notice or summons-and without the necessity of arrest-need not be set forth with the same technical precision required in an indictment, verified complaint or information. The charge under the informal procedure for handling these minor offenses must inform the accused of the nature and elements of the offense with which he is charged, but the charge may *366 be simply stated by reference to the commonly used name for the offense, along with reference to the statute or ordinance alleged to have been violated and the time and place of the violation. If the charge stated sets forth the nature and elements of the offense charged against the accused so that he may prepare his defense and be assured of his constitutional privilege against double jeopardy, then we believe that section 111-3(a)(3) of the Criminal Code has been complied with under this informal procedure for processing traffic violations, quasi-criminal cases and other misdemeanors.

**540 The machinery of government cannot adequately function without a little play in its joints. Without such procedures, the rigid technicalities of the Criminal Code would overtax our judicial system. With the flexibility of our criminal procedures in this limited area of law enforcement, we can adapt the wisdom and experience of the past to these complex problems of the present. Any person may enjoy all of the protective benefits of our Criminal Code by demanding that he be prosecuted by a verified complaint, or he may waive such rights. If an accused elects to proceed to trial under these informal procedures, he is still entitled to be adequately informed of the nature and elements of the offense, but the charge need not be stated with the specificity required in an indictment, verified complaint or information.

In Miranda v. State of Arizona, 384 U.S. 436, at page 467, 86 S.Ct. 1602, at page 1624, 16 L.Ed.2d 694, at page 720 (1966), the court stated:

‘We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.’

Thus, Miranda not only sets forth mandatory guidelines for the administration of criminal justice, but also exhorts*367 the States to exercise their own creative methods to bring about independent and constitutionally permissible solutions of such problems. If adequately solved through the construction of existing legislation and court rule, such problems may never reach the federal constitutional level. Such is our intent and purpose herein.

Accordingly, the judgment is affirmed.

Judgment Affirmed.

ABRAHAMSON and THOMAS J. MORAN, JJ., concur.

Ill.App. 1967.

People v. Brausam

83 Ill.App.2d 354, 227 N.E.2d 533

Motion to Reconsider Courts Dismissal of Case 10-MR-212 Absent a Review of all Authorities Cited in Petitioner's Memorandum of Law

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

Motion for Mandatory Judicial Notice can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW


     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW, states as follows:

 

1. That the above-captioned case was filed, to the best of the Plaintiff’s knowledge, on June 17, 2010, following Plaintiff personally tendering to Brendan Kelly, then Clerk of the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois, a number of documents captioned “Complaint and Affidavit in Support Thereof” which Plaintiff represented to be sworn complaints alleging violations of law by persons named therein, and which are sworn to by the Plaintiff and verified by the affixment of a signature and notarial seal from a Notary Public of the State of Illinois .

2. That then Clerk of the Circuit Court, Brendan Kelly, did presumably act within the Constitutional authority of his office in bringing said complaints before the court by way of his filing of the above-captioned case.

3. That the issue before this Court, originating with an officer of the Court filing said complaints, implies a remedy which exists with the Judiciary.

4. That if a remedy had existed with the administrative, as with the State’s Attorney, then it would be reasonable to assume that Mr. Kelly would not have taken the action of filing Plaintiff’s complaints in such fashion and would have instead either refused to accept Plaintiff’s complaints or directed Plaintiff to the State’s Attorney, which he did not.

5. That this Court is in possession of sworn complaints which originate with the Plaintiff, were received by an officer of the Court, presumed to be properly filed, and which conform to statutory requirements for presentment to a Court.

6. That this Court has essentially been presented with complaints which charge that an offense has been committed, thereby imposing a mandatory duty upon the Court by way of the plain language of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a)to examine the complainant upon oath or affirmation.

7. That on August 16, 2010, to the best of the Plaintiff’s knowledge, additional complaints were added to the file subsequent to Plaintiff’s mailing of said complaints to Brendan Kelly, Chief Judge, John Baricevic, and then State’s Attorney, Robert Haida.

8. That the person responsible for supplementing the file with the additional complaints was then Clerk of the Circuit Court, Brendan Kelly.

9. That it is the Plaintiff’s belief that the person responsible for the filing of the above-captioned case is none other than then Clerk of the Circuit Court, Brendan Kelly.

10. That the above-captioned case was assigned to the Honorable Brian Babka pursuant to an Order entered by Chief Circuit Judge, John Baricevic on December 7, 2010.

11.That the above-captioned case contains no other pleading, motion, or prayer for relief, which would indicate a remedy sought by the Plaintiff.

12. That the Plaintiff did appear before the Honorable Brian Babka on February 24, 2011 for a hearing regarding this case.

13. That the Plaintiff did engage this Court with a verbal recitation of what he believed to be the circumstances giving rise to the Court being in possession of said complaints.

14. That this Court did identify and recognize the Plaintiff’s documents as being complaints alleging criminal offenses, and did thereby ask by what authority the Plaintiff believed he had a right to bring said complaints before a Court and not a State’s Attorney or police agency.

15. That the Plaintiff did provide one authority he felt best supported his position, that being Lindquist v. Friedman’s, Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

16. That this Court said it would review the cited case and discuss its findings in a subsequent hearing.

17. That the Plaintiff did appear before the Honorable Brian Babka on May 12, 2011 for the purpose of discussing his review of Lindquist and its application to Plaintiff’s case for bringing complaints before the Court.

18. That Judge Babka did state that he did thoroughly research the Lindquist case and found it to still be current, and not overturned in any subsequent Appellate Court opinion, notwithstanding that opinion being rendered in 1937.

19.That Lindquist does speak to, and confirm the right, of a private individual to bring charges alleging violations of law before a “magistrate” for the purpose of a court examining the complainant and if, upon a finding of probable cause, issuing warrants of arrest for the accused to be brought before the Court to answer the charges and post bail, if need-be.

20.That the only exception between Lindquist and this case before the Court, as voiced by the Judge Babka, was that of there being no judicial officers presently serving in Illinois under the title of “magistrate”.

21.That Judge Babka did say that due to the lack of an identifiable judicial officer serving under the title of “magistrate”, an otherwise valid remedy is no longer available.

22. That Judge Babka did say that should the Plaintiff care to research the issue of “magistrates” and find where an answer affords a remedy, he may present that information to the Court for further review.

23. That Judge Babka did leave the above-captioned case open and scheduled for another status hearing in one year.

24. That upon further inquiry into the issue of judicial officers previously known as “magistrates”, no longer serving under that title in the State of Illinois, and if so empowered to hear complaints and issue warrants, to whom did that power now devolve, and what became of that judicial office, Plaintiff did file his MEMORANDUM OF LAW on June 13, 2011 which speaks to those very issues.

25. That in said Memorandum, the Plaintiff not only cites Lindquist, but other authorities as well, which not only support his position regarding bringing charges directly before a Court, but which also settles the question as to the fate of heretofore magistrates, who were empowered with hearing complaints, examining complainants, and issuing warrants of arrest, as having undergone a title change to that of Associate Judge, still possessing the same powers and duties as magistrates per the Illinois Constitution of 1970.

26. That among said authorities cited in Plaintiff’s Memorandum are citations from the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which impose a mandatory duty upon a Court to act when presented with a complaint that conform to statutory requirements.

27. That among said authorities cited in Plaintiff’s Memorandum is the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention, which identify Associate Judges as having previously been titled magistrates, and who have the authority to issue arrest warrants, and conduct preliminary examinations of persons arrested.

28. That on June 20, 2011, the Honorable Brian Babka did issue an Order in response to Plantiff’s Memorandum.

29. That in said Order, Judge Babka cites the case of People ex rel.Daley v. Moran 94 Ill. 2d 41, 445 N.E. 2d 270, 67 Ill. Dec 790 in response to Plaintiff’s Memorandum, specifically one case therein cited as Lindquest v. Friedman’s Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

30. That Plaintiff did provide other supporting authorities for his position, as well as raising other arguments in his Memorandum, that were not addressed in the Order.

31. That the Order mischaracterizes the remedy sought by the Plaintiff and is thereby unresponsive in that:

a. Plaintiff does not seek the issuance of arrest warrants, exclusively.

b. That Plaintiff is not seeking to exercise, or to have this Court exercise, any power belonging to the State’s Attorney, other Administrative Officer, or otherwise violate the doctrine of separation of powers.

c. That Illinois Law, Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., is clear on the procedure for presentment of a complaint to a court, and a duty of a Court to act when so presented, as cited in Plaintiff’s Memorandum, but such issue is not addressed in the Court’s Order dismissing this case.

d. That the case of People ex rel Daley v. Moran, cited in the Order, does not speak to the issuance of arrest warrants, but merely speaks to the separation of powers between the judiciary and administrative when charging an offense, making no mention of receiving complaints or examining complainants, and is not therefore on-point for the purposes of Plaintiff’s remedy.

e. That Plaintiff agrees with the holding in People ex rel Daley v. Moran, as the discretion for prosecution rests with the State’s Attorney, however the power to hear complaints, examine complainants, issue warrants of arrest, and conduct preliminary examinations, rests solely with the judiciary, of which Associate Judges are a part.

f. That Plaintiff answered the Court’s question as to magistrates and any corresponding judicial officer presently sitting and empowered to act upon complaints, by way of his Memorandum, where he cites the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention.

g. That the contents of the file for this case do not clearly speak to the remedy sought by the Plaintiff, and the record is thin on written evidence, relying solely upon brief oral arguments which may not have clearly presented.

h. That the remedy sought by the Plaintiff is to present his sworn complaints and supporting evidence to a judicial officer empowered to hear such complaints, and to avail himself to being examined under oath, as required by law, and for such judicial officer to act upon the results of such presentment and examination according to law.

32. That this court has not reviewed, nor addressed, other supporting authorities presented, notwithstanding Lindquist, that affirm the right of a private individual to bring complaints before a Court.

33. That judicial officers once serving under the title of “magistrates”, now serve in the same capacity as Associate Judges, following a renaming of magistrates in the Illinois Constitution of 1970, but retaining the powers and duties previously assigned.

34. Therefore, considering all facts and circumstances to-date, it is reasonable to assume that a remedy exists with this Court for addressing or otherwise acting upon the Complaints contained therein

WHEREFORE, In light of the foregoing, and in the interest of justice and submission to the laws of the State of Illinois, Plaintiff hereby requests this Court to reconsider its Order of June 20, 2011 which dismissed the above-captioned case, and review all of the information before it.

                       

Mark R. McCoy, Petitioner

                       

Date


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Motion for Mandatory Judicial Notice in Support of Petitioner's Motion to Reconsider

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

The Motion to Reconsider can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER

     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER, moves this Court to take Mandatory Judicial Notice of the following matters set forth hereafter, pursuant to the Mandatory Provisions of the Illinois Code of Civil Procedure Section 735 ILCS 5/8-1001 et seq., which Motion is made in support of the here accompanying MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW.

 

MATTERS TO BE JUDICIALLY NOTICED

 

1. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which defines the requirements for bringing complaints before a Court, examination of complainants and witnesses, and issuance of arrest warrants.

2. The Court should take Judicial Notice of the contents of the Case File as containing documents captioned as “Complaint and Affidavit in Support Thereof” which are sworn to by the Plaintiff and which meet the requirements for a complaint pursuant to the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(b)(1)(2)(3)(4) which states:

“(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.”

3. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) which states, “When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.”

4. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not limit what court may hear complaints, be they administrative, criminal, or civil.

5. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not specify who may, nor preclude who may not, present a complaint to a court.

6. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑9 which defines a complaint to mean: “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.”

7. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑10 which defines a court to mean: “Court” means a place where justice is judicially administered and includes a judge thereof.

8. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 which defines a judge to mean: “Judge” means a person who is invested by law with the power to perform judicial functions and includes a court when a particular context so requires.”

9. That the Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 does not exclude associate judges.

10. That the Court should take Judicial Notice of the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices.

11. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the renaming of magistrates to associate judges.

12. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the duties and responsibilities of associate judges as those belonging to former magistrates.

13.That the Court should take Judicial Notice of the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.

14. That the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970 mentions on a number of occasions, the intent and application of the proposed renaming of magistrates to associate judges.

 

Dayton, Ohio Police Beat and Taser Mentally Handicapped Youth

Cops Just Love Those Tasers
By KEVIN KOENINGER
DAYTON, Ohio (CN) – Dayton police “mistook” a mentally handicapped teenager’s speech impediment for “disrespect,” so they Tasered, pepper-sprayed and beat him and called for backup from “upward of 20 police officers” after the boy rode his bicycle home to ask his mother for help, the boy’s mom says.  –
I have to ask, if there were 20 police officers available to respond to this incident, then there are obviously too many police. I would imagine there is a reserve of officers waiting in a room watching the clubbing of baby seals, or maybe even real babies, just waiting for one of their brethren to call for help because he needs a “throw down” weapon to frame the “perp”. In my opinion, one cop is too many, but 20 of these thugs being available for back up is pork on the payroll.
Pamela Ford says her “mentally challenged/handicapped” son Jesse Kersey, 17, was riding his bike near his Dayton home when Officer Willie Hooper stopped him and tried to talk to him.
The mom says that “Prior to the incident described below, defendant Hooper knew Jesse and was aware that Jesse was mentally challenged/handicapped and a minor child.”
Nonetheless, Ford says, Hooper “apparently took Jesse’s speech impediment for disrespect … [and] began yelling at Jesse and after Jesse attempted to communicate with him[.] Jesse, being a minor and mentally challenged/handicapped, turned and rode his bike back to his home in an attempt to ask his mother, Ford, to help him communicate with defendant Cooper,” according to the complaint in Montgomery County Court. –

First of all, Hooper has NO business approaching anybody unless they have reasonable suspicion that a crime has been committed. Nobody has any duty to speak to, much less, exhibit respect to a cop. Hooper has also received the distinguished “Douchebag of the Week”, which doesn’t even come close to conveying the contempt I feel for this low-life right now, but will suffice nonetheless.

On the way, the mom says, “A neighbor attempted to communicate with Officer Hooper about Jesse’s disabilities and was told to go back into his home, or he would be arrested.”
As Ford opened her front door, she says, Hooper and co-defendant Officer John Howard, “fired their Tasers, striking Jesse in the back with both probes.”
“Once inside the house, defendant Hooper and defendant Howard began to struggle with Jesse, who was standing against the back door with his hands up in front of his face, saying ‘Please quit, please quit.’
“On numerous occasions, Ford and a family friend, Christopher Peyton, informed Officer Hooper that Jesse was mentally challenged/handicapped, and that Jesse did not understand what was happening,” the complaint states. –

First of all, the next time anyone witnesses anyone being assailed by police, they need to go back into the house and get a weapon and go to that person’s aid. What Hooper and Howard did afforded them no protection since they were acting outside the law, and anybody who witnessed the assault would have been within their rights to subdue them, even to the point of taking their lives if necessary. This article talks about using force, even if deadly, to resist an unlawful arrest. http://markmccoy.com/wp/2009/04/02/your-right-of-defense-against-unlawful-arrest-2/

But the mom says the cops continued their assault: “Officer Howard utilized his Cap-Stun pepper spray and sprayed Jesse … [and] struck Jesse with a closed fist in the upper chest area.
“Officer Howard utilized his ASP and repeatedly struck Jesse in the upper left side of his left thigh.
“Back-up units were requested to Jesse’s house, wherein upward of 20 police officers from different jurisdictions were present.
“At no point, even after being advised of Jesse’s mental challenge/handicap by Jesse’s family and numerous bystanders, did defendant Hooper, defendant Howard, or any other police officer present, attempt to communicate with Jesse or explain in terms he could understand as to why Jesse was being chased.
“Jesse was handcuffed and hogtied before being placed in the back of a police cruiser.
“Jesse was charged with assault on a peace officer, resisting arrest, and obstructing official business.” –

It seems that Willie Hooper is a scumbag of some notoriety. This is not the first time Hooper has been sued for his violent tendencies and lack of basic human decency. In 1995, Daniel B. McGuiness sued Hooper and the City of Dayton, Ohio for Malicious Prosecution and Infliction of  Emotional Distress. The court dismissed that case against Hooper, as is usual with judicial protectionism of these vermin, in 1997.

However, “Jesse was declared incompetent by the Montgomery County Juvenile Court and the charges against Jesse were dismissed.”
Jesse and his mom seek damages from the city and the two lead officers, for false imprisonment, false arrest, malicious prosecution, assault, battery, excessive use of force, infliction of emotional distress and civil conspiracy. –

Of course the charges were dismissed. This is the way they always deal with these issues. However, that doesn’t stop the police from initiating bogus charges and physically assaulting people in the first-place. They were dismissed because they had no right to stop Jesse. I would say that whenever you are approached by a cop, that you should be on the defensive and should they step outside the law and exhibit intent to harm you, take defensive action. The Dayton Daily News give a different perspective on the story, but still does not explain by what right Hooper had in using the level of force used against Jesse. If Jesse did, as alleged in the police report, ride his bike down a one way street, that is not a criminal offense and arrest is not allowed for violations which consist of a fine only.

There is also a forum hosted by supposedly freedom-loving right wing lunatics at Conservative Political Forum where they mention Jesse’s lack of cooperation with being a justification for the police using the force that they did. As if we have a duty to jump to the commands of police as if they were wardens over a prison, which is not really far from the truth. They talk about the “liberal left with an agenda” reporting this incident and Jesse’s lawyer as trying to use the issue as a ploy for sympathy of a handicapped individual.

They are represented by Richard Boucher. –

To contact the Chief’s Office of the Dayton Police Department to express your thoughts, call (937) 333-1080.

I checked into this case and have the complaint here, as well as information on Willie Hooper.

Hooper was also involved in a civil suit in 2007 where he claims to have been rear ended while sitting in a drive-thru of a Walgreens.

The Case Number is 07-8452.

Hooper was with his daughter, Brittany Hooper.

Hooper is a resident of Dayton, Ohio in Montgomery County.

Hooper’s Address is recorded as:

WILLIE HOOPER

256 CELLARIUS CT

DAYTON OH 45405

Information on his home is:

http://www.homes.com/Home-Prices/ID-600026582193/256-Cellarius-Ct/

Hooper also had a property sold at sheriff’s auction.

http://www.dailycourt.com/sheriffsale/details/id/27020

Owner name & address

HOOPER WILLIE B

904 SHROYER RD

DAYTON OH 45419 3632

http://www.trulia.com/property/1041626161-904-Shroyer-Rd-Dayton-OH-45419

WILLIE B HOOPER

256 CELLARIUS CT

DAYTON OH 45405

http://www.homes.com/Home-Prices/ID-600026582193/256-Cellarius-Ct/

Legal Information

904 SHROYER RD

OH

Tax District

R72

Conveyance Number

17842

 

There was another civil case involving Hooper and Child Emergency Services. There is a Karen Johnson listed as another defendant.

Civil Case Party Information

2007-CVF-004543

Plaintiffs              Attorneys

1              Childrens Emergency Service      Knostman, Richard G

P.o. Box 751084

Dayton, OH 45475

Defendants        Attorneys

1     Karen Johnson  Schiff, Thomas R.

636 Huffman Ave

Dayton, OH 45403

2     Willie B Hooper Schiff, Thomas R.

256 Cellarius

Dayton, OH 45404

Case Description:

Contract / Account Case

CHILDRENS EMERGENCY SERVICE

Plaintiff                               Party Info

vs.

KAREN JOHNSON

Defendant

Case Status: Dismissed

Judge Assigned: Carl S Henderson

Execution No:

Next Court Date: None

Causes of Action

No.         Cause Description            Amount               Damages             Interest %

1              Money $361.50                 8.0000

Case History

06/14/2007

1:36PM

5a

06/14/2007

1:36PM

Children’s Emergency Service

06/14/2007

1:36PM

Vs

06/14/2007

1:36PM

Karen Johnson

06/14/2007

1:36PM

Receipt 07024252

06/14/2007

1:36PM

Filing Fee Of $110.00

06/14/2007

1:36PM

Paid By Knostman, Richard G

06/15/2007

8:55AM

New Complaint Entered

06/15/2007

8:55AM

Childrens Emergency Service P.o. Box 751084 Dayton Oh, 45475

06/15/2007

8:55AM

Plaintiff(s)

06/15/2007

8:55AM

Vs.

06/15/2007

8:55AM

Karen Johnson 636 Huffman Ave Dayton Oh, 45403 Willie B Hooper 256 Cellarius Dayton Oh, 45404

06/15/2007

8:55AM

Defendant(s)

06/15/2007

8:55AM

Plaintiff’s Attorney Knostman, Richard G 4428 N Dixie Dr Dayton Oh, 45414

06/15/2007

8:55AM

Summons Issued To Defendant(s)

06/18/2007

1:43PM

Entry Appointing Barb Silver As Special

06/18/2007

1:43PM

Process Server.(img)

07/31/2007

12:31PM

Service Process Server Process Server Personal Servc On 07/23/07 Served To Johnson, Karen Signed By Barb Levan

09/04/2007

11:22AM

Service Process Server Process Server Personal Servc On 09/02/07 Served To Hooper, Willie Signed By Barb Levan

09/04/2007

2:31PM

Judge: Gehres, Daniel G Assigned To Case

09/04/2007

2:32PM

Answer Filed By Willie B Hooper

09/14/2007

12:26PM

Entry Of Recusal & Notice To Court Administrator

09/14/2007

12:26PM

To Reassign The Case.(img)

10/16/2007

3:22PM

Judge Csh Reassigned To Case Judge Gehre’s Recusal

12/31/2007

10:46AM

Sched. Pre-trial On 02/12/08,01:30pm,div4c

01/02/2008

1:54PM

02/14/2008

11:31AM

Sched. Civil Trial On 04/16/08,08:30am,div4c

02/15/2008

9:59AM

03/28/2008

9:51AM

Judge Henderson’s Pre-trial Orders Filed.(img)

03/31/2008

3:45PM

Deft.willie Hooper’s Copies Of Exhibits To

03/31/2008

3:45PM

Be Used In This Case.(img)

04/10/2008

9:26AM

Deft.willie Hooper’s Motion For Continuance Notice Of Appearance Of Thomas R.schiff As

04/11/2008

12:34PM

Counsel For Deft.(img)

04/15/2008

11:49AM

Resched. Civil Trial On 05/05/08,08:30am,div4c Resched Reason: Def’s Request

04/15/2008

4:26PM

Entry Granting Continuance Of 04/16/08 Trial

04/15/2008

4:26PM

To May 05,2008 At 8:30 Am.(img)

04/24/2008

10:21AM

Pltf’s Motion For Continuance Filed.(img)

05/05/2008

3:59PM

Entry Granting Continuance Of 05/05/08 Hearing,

05/05/2008

3:59PM

Further Ordered That Matter Be Referred For

05/05/2008

4:00PM

Assignment Of A New Trial Date.(img)

06/09/2008

10:45AM

Sched. Civil Trial On 08/05/08,08:30am,div4c

06/12/2008

2:00PM

08/13/2008

2:22PM

Sched. Civil Trial On 09/17/08,08:30am,div4c

08/19/2008

9:19AM

09/29/2008

3:09PM

Case Dismissed

 

Complaint of Jesse Kersey

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

CIVIL DIVISION

JESSE KERSEY    *

531 St. Paul Ave.

Dayton, Ohio 45410    *

and      *

PAMELA FORD, individually  *

and as mother and natural guardian  of Jesse Kersey    *

531 St. Paul Avenue

Dayton, Ohio 45410    *

Plaintiffs, *

vs.      *

CITY OF DAYTON, OHIO *

101 W. Third St.

Dayton, Ohio 45402    *

OFFICER WILLIE HOOPER  In his individual and official capacity

c/o Dayton Police Department  *

335 W. Third Street

Dayton, Ohio 45402

and      *

OFFICER JOHN HOWARD  *

In his individual and official capacity

c/o Dayton Police Department  *

335 W. Third St.

Dayton, Ohio 45402    *

and

*

OFFICER JOHN DOE

In his individual and official capacity  *

c/o Dayton Police Department

335 W. Third St.    *

Dayton, Ohio 45402

*

Defendants.

CASE NO.  2011 CV 04561

Judge DENNIS J. LANGER

COMPLAINT FOR FALSE IMPRISONMENT, FALSE ARREST MALICIOUS PROSECUTION, ASSAULT, BATTERY, EXCESSIVE USE OF FORCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, GROSS NEGLIGENCE AND RECKLESS ACTIONS, CIVIL CONSPIRACY, AND LOSS OF CONSORTIUM

_____________________________________________________________________________

Now come Plaintiffs, Pamela Ford, individually and as the mother and natural guardian

of Jesse Kersey (“Ford”), and Jesse Kersey (“Jesse”), (collectively “Plaintiffs”), by and through

counsel, and for their Complaint against Defendants, City of Dayton, Ohio (“City of Dayton”),

Officer Willie Hooper (“Hooper”), Officer John Howard (“Howard”), and Officers John Doe,

state and aver as follows:

FACTS

1. At all times relevant herein, Jesse, a mentally challenged/handicapped teenager, was and is a resident of Montgomery County, Ohio and was a minor child.

2. At all times relevant herein, Ford was and is the biological mother and natural guardian of Jesse and was and is a resident of Montgomery County, Ohio.

3. At all times relevant herein, the individually named Defendants Hooper and Howard were acting in an official capacity as police officers employed by the City of Dayton in the Dayton Police Department.  As such, the individual Defendants Hooper and Howard were duly appointed agents authorized to enforce the laws of the City of Dayton and they were acting under the color of state law at all times relevant to this action.

4. At all relevant times described herein, City of Dayton is a municipal corporation duly incorporated under the laws of the State of Ohio, and is responsible for the regulation, 3 policies, customs, and practices of the Dayton Police Department, as well as supervising, controlling, and disciplining police officers located within Dayton, Ohio.

5. Prior to the incident described below, Defendant Hooper knew Jesse and was aware that Jesse was mentally challenged/handicapped and a minor child.

6. On or about June 25, 2010, Defendant Hooper encountered Jesse while he was on duty and acting within his role as an officer of the Dayton Police Department.

7. The above encounter began at the corner of Andrew Street and St. Paul Avenue, in the City of Dayton, Montgomery County, Ohio, where Jesse was riding his bicycle near his residence.

8. Defendant Hooper approached Jesse and Jesse attempted to communicate with Defendant Hooper, however, Defendant Hooper apparently mistook Jesse’s speech impediment for disrespect.

9. Defendant Hooper began yelling at Jesse and after Jesse attempted to communicate with him, Jesse, being a minor and mentally challenged/handicapped, turned and rode his bicycle back to his home in an attempt to ask his mother, Ford, to help him communicate with Defendant Hooper.

10. A neighbor attempted to communicate with Officer Hooper about Jesse’s disabilities and was told to go back into his home, or he would be arrested.

11. Jesse approached his front door, in an effort to retrieve Ford for assistance, and Defendant Hooper proceeded to chase him.

12. Defendant Howard, while he was on duty and acting within his role as an officer of the Dayton Police Department, showed up at Ford’s house at Defendant Hooper’s request. 4

13. Once Ford opened the front door, Defendant Hooper and Defendant Howard fired their Tasers striking Jesse in the back with both probes.

14. Once inside the house, Defendant Hooper and Defendant Howard began to struggle with Jesse, who was standing against the back door with his hands up in front of his face, saying “please quit, please quit.”

15. On numerous occasions, Ford, and a family friend, Christopher Peyton, informed Officer Hooper that Jesse was mentally challenged/handicapped, and that Jesse did not understand what was happening.

16. Defendant Hooper and Defendant Howard continued to struggle with Jesse.

17. Officer Howard utilized his Cap-Stun pepper spray and sprayed Jesse.

18. Officer Howard struck Jesse with a closed fist in the upper chest area.

19. Officer Howard utilized his ASP and repeatedly struck Jesse in the upper side of his left thigh.

20. Back-up units were requested to Jesse’s house wherein upward of 20 police officers from different jurisdictions were present.

21. At no point, even after being advised of Jesse’s mental challenge/handicap by Jesse’s family and numerous bystanders, did Defendant Hooper, Defendant Howard, or any other police officer present, attempt to communicate with Jesse or explain in terms he could understand as to why Jesse was being chased.

22. Jesse was handcuffed and hog tied before being placed into the back of a police cruiser.

23. Jesse was charged with Assault on a Peace Officer,  Resisting Arrest, and Obstructing Official Business. 5

24. Jesse was declared incompetent by the Montgomery County Juvenile Court and the charges against Jesse were dismissed.

25. Jesse has suffered severe mental and physical bodily distress due to the actions of Defendants Hooper and Howard, and was forced to seek medical and psychological treatment for his injuries.

FIRST CAUSE OF ACTION

(False Imprisonment)

26. Plaintiffs incorporate the averments contained in paragraphs 1 through 25 as if fully rewritten herein.

27. In restraining Jesse and in firing his Taser into Jesse, Defendant Hooper and Defendant Howard acted knowingly, wrongfully, unlawfully and maliciously.

28. Defendant Hooper and Defendant Howard’s actions constituted a false imprisonment of Jesse.

29. As a direct and proximate result of the false imprisonment of Jesse by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

SECOND CAUSE OF ACTION

(False Arrest)

30. Plaintiffs incorporate the averments contained  in paragraphs 1 through 29 as if fully rewritten herein.

31. In charging Jesse with assault on a peace officer, resisting arrest, and obstructing official business, as well as causing the arrest of Jesse, Defendant Hooper and Defendant Howard acted knowingly, wrongfully, unlawfully and maliciously and the aforesaid actions constituted a false arrest of Jesse and an arrest without probable cause. 6

32. As a direct and proximate result of the false arrest of Jesse by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

THIRD CAUSE OF ACTION

(Malicious Prosecution)

33. Plaintiffs incorporate the averments contained  in paragraphs 1 through 32 as if fully rewritten herein.

34. Defendant Hooper and Defendant Howard maliciously and without probable cause, charged Jesse with having committed assault on a peace officer, resisting arrest, and obstructing official business, and knowingly persisted in their wrongful effort to have Jesse convicted for crimes he did not, and was not capable of committing.

35.  As a direct and proximate result of the malicious prosecution of Jesse by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

FOURTH CAUSE OF ACTION

(Assault)

36.  Plaintiffs incorporate the averments contained in paragraphs 1 through 35 as if fully rewritten hereunder.

37. Defendants conduct constitutes assault under Ohio Law.

38.  As a direct and proximate result of the assault of Jesse by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than TwentyFive Thousand Dollars ($25,000.00). 7

FIFTH CAUSE OF ACTION

(Battery)

39.  Plaintiffs incorporate the averments contained in paragraphs 1 through 38 as if fully rewritten hereunder.

40. Defendants conduct constitutes battery under Ohio Law.

41. As a direct and proximate result of the battery of Jesse by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than TwentyFive Thousand Dollars ($25,000.00).

SIXTH CAUSE OF ACTION

(Excessive Use of Force)

42.  Plaintiffs incorporate the averments contained in paragraphs 1 through 41 as if fully rewritten hereunder.

43. Defendants conduct constitutes excessive force  in violation of Jesse’s rights under the Constitution of the State of Ohio and the United States Constitution.

44. The use of said excessive and illegal force by the Defendants named herein, acting by and on behalf of the City of Dayton and the Dayton Police Department, constituted a violation of Jesse’s rights to equal protection of the laws and/or due process of the laws provided by the Fourteenth Amendment of the United  States Constitution and also constitutes a violation of Jesse’s rights under Ohio law and the Ohio Constitution.

45. As a direct and proximate result of the excessive use of force by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00). 8

SEVENTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)

46.  Plaintiffs incorporate the averments contained in paragraphs 1 through 45 as if fully rewritten herein.

47.  Defendants intentionally inflicted severe emotional distress on Jesse in violation of Ohio Law.

48. Defendants intentionally inflicted severe emotional distress on Ford in violation of Ohio Law.

49.  As a direct and proximate result of the intentional infliction of emotional distress by Defendants, Jesse and Ford have suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

EIGHTH CAUSE OF ACTION

(Negligent Infliction of Emotional Distress)

50.  Plaintiffs incorporate the averments contained in paragraphs 1 through 49 as if fully rewritten herein.

51.  Defendants negligently inflicted severe emotional distress on Jesse in violation of Ohio Law.

52. Defendants negligently inflicted severe emotional distress on Ford in violation of Ohio Law.

53.  As a direct and proximate result of the negligent infliction of emotional distress by Defendants, Jesse and Ford have suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00). 9

NINTH CAUSE OF ACTION

(Gross Negligence and Reckless Actions)

54. Plaintiffs incorporate the averments contained  in paragraphs 1 through 53 as if fully rewritten herein.

55.  Defendants were grossly negligent and reckless in their actions as aforesaid.

56.  As a direct and proximate result of the grossly negligent and reckless actions by the Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

TENTH CAUSE OF ACTION

(Civil Conspiracy)

57.  Plaintiffs incorporate the averments contained in paragraphs 1 through 56 as if fully rewritten herein.

58.  Jesse was initially charged with assault on a  peace officer, resisting arrest, and obstructing official business.

59.  After being declared incompetent by the Montgomery County Juvenile Court, the charges against Jesse were dismissed.

60.  Jesse states that in order to cover up the Defendants unjustified use of their taser, pepper spray, and ASP, all Defendants conspired to charge Jesse with assault on a peace officer, resisting arrest, and obstructing official business.

61.  Defendants unjustified and objectively unreasonable use of their taser, pepper spray, and ASP, was a direct and proximate cause of Jesse’s pain, suffering, and mental anguish.

62.  Said acts by the Defendants violated Jesse’s rights to be free from summary punishment and deprivation of his life and liberty without due process of law under the Fourth Amendment to the United States Constitution, to be  free from an objectively 10 unreasonable seizure and objectively unreasonable use of force under the Fourth Amendment to the Constitution of the United States.

63.  As a direct and proximate result of the civil conspiracy by Defendants, Jesse has suffered harm in an amount yet to be determined however anticipated to be not less than Twenty-Five Thousand Dollars ($25,000.00).

ELEVENTH CAUSE OF ACTION

(Loss of Consortium)

64. Plaintiffs incorporate the averments contained  in paragraphs 1 through 63 as if fully rewritten herein.

65. As a direct and proximate result of the negligence of Defendants, Ford has been denied the society, companionship, comfort, love, and consortium of her son.

66.  As a direct and proximate result of the Defendants negligence, Ford has suffered harm in an amount yet to be determined however anticipated  to be not less than Twenty-Five Thousand Dollars ($25,000.00).

WHEREFORE, Plaintiffs claim judgment against the Defendants and each of them, jointly and severally, as follows:

A. On the First Cause of Action, judgment against Defendants for false imprisonment in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

B. On the Second Cause of Action, judgment against Defendants for false arrest in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

C. On the Third Cause of Action, judgment against Defendants for malicious prosecution in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00); 11

D. On the Fourth Cause of Action, judgment against Defendants for assault in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

E. On the Fifth Cause of Action, judgment against Defendants for battery in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

F. On the Sixth Cause of Action, judgment against Defendants for the excessive use of force in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

G. On the Seventh Cause of Action, judgment against Defendants for the intentional infliction of emotional distress in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

H. On the Eighth Cause of Action, judgment against Defendants for the negligent infliction of emotional distress in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

I. On the Ninth Cause of Action, judgment against Defendants for their gross negligence and reckless actions in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

J. On the Tenth Cause of Action, judgment against Defendants for civil conspiracy in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

K. On the Eleventh Cause of Action, judgment against Defendants for loss of consortium in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00);

L. Attorney Fees;

M. Costs of this action; and

N. Such other and further relief as Plaintiffs may be entitled at law or in equity. 12

Respectfully submitted,

/s/ Richard A. Boucher, Esq.

Richard A. Boucher, Esq. (#0033614)

Julia C. Kolber, Esq. (#0078855)

Lauren E. Grant, Esq. (#0087315)

Attorneys for Plaintiffs

BOUCHER & BOUCHER CO., L.P.A.

12 W. Monument Ave., Suite 200

Dayton, Ohio 45402-1202

(937) 223-0122 – Office

(937) 223-0120 – Facsimile

richard@boucherandboucher.com

JURY DEMAND

Now come Plaintiffs, by and through counsel, and hereby demand a trial by jury as to all issues herein.

/s/ Richard A. Boucher, Esq.

Richard A. Boucher, Esq. (#0033614)

Julia C. Kolber, Esq. (#0078855)

Lauren E. Grant, Esq. (#0087315)

Attorneys for Plaintiffs