ROBERT E. MANLEY (19352006) TIMOTHY M. BURKE SEAN P. CALLAN* JOHN E. CHRISTOPHER* DANIEL J. MCCARTHY** JACKLYN D. OLINGER JAMES M.

COONEY KATHY A. FARRO

M ANLEY B URKE
A LEGAL PROFESSIONAL ASSOCIATION

COUNSEL:

www.manleyburke.com 225 West Court Street Cincinnati, Ohio 45202 Telephone: 513.721.5525 Toll Free: 800.708.0798 Fax: 513.721.4268 Mark P. Painter painter@manleyburke.com

MARK P. PAINTER GARY MOORE EBY* GEORGE F. MOELLER BRADLEY WM. THOMAS
RETIRED: WILLIAM A. MCCLAIN
*also admitted in Kentucky
**also admitted in Illinois and Missouri

Immediate release 20 May 2013 Contact: Mark Painter, 513.763.6755, painter@manleyburke.com

Thomer files suit against Cincinnati for false arrest and Constitutional violations

Manley Burke LPA

has today filed suit for Forest Thomer against the City of

Cincinnati for the false arrest, malicious prosecution, and deprivation of his Constitutional rights. The mistreatment by the City stems from an incident last May at the Party in the Park in Cincinnati. Thomer was arrested and prosecuted by the City for simply exercising his right of free speech by helping Allison Bruener, who has muscular dystrophy and uses a wheelchair, market her comedy show. For nothing more than speech, Thomer was handcuffed, arrested, and prosecuted by the City. During the course of the prosecution, the City kept changing the charge, attempting to make free speech criminal. But the City could not overcome the Constitution, and a jury found Thomer innocent of all charges last November. Todays civil suit, in United States District Court, begins the process of vindicating the Constitution, and making the City pay for its wrongs. We hope that the City will learn a lesson and not in the future persecute other citizens for exercising their free-speech rights. Copy of complaint attached.

T HOMER v. C INCINNATI

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION at CINCINNATI

JOHN FOREST THOMER II 1174 East Low Gap Road Cold Spring, KY 41076 Plaintiff, v. CITY OF CINCINNATI, OHIO 801 Plum Street Cincinnati, Ohio 45202 and OFFICER DANIEL KREIDER 310 Ezzard Charles Drive Cincinnati, Ohio 45214 and OFFICER RON HUGLEY 310 Ezzard Charles Drive Cincinnati, Ohio 45214

Case No.

Judge:

COMPLAINT AND JURY DEMAND

FOR PLAINTIFF:

Mark P. Painter Timothy M. Burke James Cooney

225 West Court Street Cincinnati, Ohio 45202 513.763.6755 painter@manleyburke.com

MANLEY BURKE , LPA

(0006111) (0009189) (0086527)

1 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

JURISDICTION AND VENUE

1. This Court has jurisdiction under 42 U.S.C. 1983 to redress injuries suffered by the

Thomer for deprivation under color of state law of rights secured by the First Amendment to the United States Constitution. This Court has federal-question jurisdiction under 28 U.S.C. 1331; diversity jurisdiction under 28 U.S.C. 1332; and supplemental jurisdiction over the state law claims under 28 U.S.C. 1367(a). 2. Venue in the United States District Court, Southern District of Ohio is proper under 28

U.S.C. 1391(b).

PARTIES
3. Plaintiff John Forest Thomer II (Thomer), at all relevant times, was a resident of

Campbell County, Kentucky. 4. Defendant City of Cincinnati, Ohio (the City) is a political subdivision of the State of

Ohio and is organized and exists under the laws of the State. At all relevant times, the City employed, controlled, or had the right to control Defendants Kreider and Hugley. 5. Defendant Daniel Kreider, at all relevant times, was a police officer employed by the City

of Cincinnati. Defendant Kreider is named in his individual and official capacities. 6. Defendant Ron Hugley, at all relevant times, was a police officer employed by the City of

Cincinnati. Defendant Hugley is named in his individual and official capacities.

GENERAL ALLEGATIONS
7. On May 23, 2012, Plaintiff Thomer attended the Party in the Park (the Party) at

Yeatmans Cove (the Park) in Cincinnati, Ohio.

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T HOMER v. C INCINNATI

8.

The Park is a public park along Cincinnatis riverfront, adjacent to Cincinnatis

downtown business district, owned and operated by the City of Cincinnati. The Party in the Park takes place at the Park on Wednesdays in summer months. 9. The Party in the Park is a privately sponsored event that operates under a special event

permit issued by the City. 10. The Party is free and open to the general public. There are no tickets for the event.

There are no barriers to entry at the event, such as admission gates or checkpoints. 11. As the name implies, Party in the Park is a social event and typically features a live band

and booths serving alcohol. 12. Promotional materials indicate that approximately 5,000 people attend the Party on a

typical Wednesday. 13. Thomer attended the Party in the Park with his friend, non-party Allison Bruener.

Bruener suffers from muscular dystrophy and uses a wheelchair. 14. Bruener is a comedian. One of the purposes of Brueners comedy is to draw attention to

the way that those in wheelchairs and with conditions such as muscular dystrophy are treated differently. 15. One of the ways that Bruener draws attention to the issues facing those with disabilities Bruener has a website that promotes her material,

is to use the term crippled.

www.ILaughedAtTheCrippledGirl.com. 16. Bruenner had recently appeared in a short film/music video, which was at the time

entitled Born Star. 17. 18. Thomer attended the Party in the Park on May 23, 2012, to promote Bruener and her material. Thomer was wearing a t-shirt with a modified handicapped symbol and the name of

Brueners website. He approached several people at the event, pointed to Bruener, and asked

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T HOMER v. C INCINNATI

if they would like to laugh at the crippled girl. Bruener then told a joke, and provi ded information about her website or upcoming comedy shows if the people were interested. 19. Thomer videotaped some of these conversations with a hand-held camera. During some

of the conversations, Thomer asked the people he approached to say, I laughed a t the crippled girl on camera. Many agreed to say the line on camera. 20. Thomer was violating no laws by approaching individuals at a public park and speaking

to them about Bruener. 21. Thomers behavior was in keeping with the social nature of the event and Thomer was

not being aggressive or unreasonably loud in his interactions with people. 22. One individual complained about Thomer to two police officers. She would later testify

that she didnt like what [Thomer] was saying. 23. 24. The two Officers were off-duty and working a special event detail at the event. The Officers, Defendants Kreider and Hugley, observed Thomer for a brief period, no

more than a few minutes, and saw him approach others to speak about Bruener. 25. The two Officers approached Thomer. Officer Kreider told Thomer he needed to leave

the Park. Thomer responded by asking why he needed to leave. The Officers did not tell Thomer why they were asking him to leave the Park. 26. Thomer attempted to film the encounter using the camera he was holding. The Officers

told him it was disrespectful to film the police. 27. Officer Kreider again told Thomer he needed to leave the Park. Thomer again asked

why. The Officers never told him why he was being made to leave the Park. 28. Without providing any explanation of why Thomer was being evicted from the Park, the

Officers grabbed Thomer. Officer Hugley pulled the camera out of Thomers hands, breaking the camera strap in the process. The Officers pulled Thomers hands behind his back and handcuffed him. During this process, the Officers threatened to taze Thomer. 4 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

29. 30.

Officers Hugley and Kreider placed Thomer under arrest. An on-duty police officer was called to the scene to transport Thomer to jail. While

handcuffed, Thomer was removed from the Park by the Officers and taken to the parking lot adjacent to the Park to be put in a squad car. 31. After he was taken to the parking lot, Thomer told the Officers that he was Brueners only

ride home. 32. Officer Kreider wrote Thomer a citation for violating Ohio Revised Code 2917.11,

Disorderly Conduct. The citation stated that Thomer did recklessly cause alarm and annoyance to others by making grossly abusive language. 33. Thomer was given the citation and released near Butler Street, in the parking lot

adjacent to the Park. 34. The citation given to Thomer identifies the content of Thomers speech as forming the

sole basis for the citation. 35. Thomer was asked to leave the Park and cited for disorderly conduct because he

approached people to talk in a public park, an activity protected by the First Amendment. 36. A criminal complaint was filed against Thomer by the City of Cincinnati. Unlike the

citation, the Complaint stated that Thomer, did recklessly cause annoyance to another by making unreasonable noise, a violation of O.R.C. 2917.11(A)(2). The Complaint further stated that it was based on, John Thomer walking into people and shouting obscenities at them. John Thomer was asked to stop his behavior but persisted in yelling and shouting causing annoyance and alarm to others. 37. Thomer requested a Bill of Particulars from the City to clarify the charges against him.

The City responded with a Bill of Particulars again stating that Thomer had shouted obscenities and walked into people. The only specific example given by the City of the conduct that led to a charge was that Thomer allegedly stat[ed] to a witness that his girlfriend was a porn star 5 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

[obviously a misunderstanding of Born Star] and if you jump on she will give you the ride of your life. 38. Thomer moved to dismiss, arguing that the alleged statement was protected by the First

Amendment. 39. Despite references to the content of Thomers speech in the Citation, Criminal

Complaint, and Bill of Particulars, the City responded by stating that Thomer was not charged with violating ORC 2917.11(A)(2) for the content of his speech, but for his conduct. The City stated that the charge against Thomer, solely involves the volume of the speakers voice. 40. Thomer withdrew his motion to dismiss upon assurances that he was not being charged

for the content of his speech, but for the volume of his voice under O.R.C. 2917.11(A)(2). 41. A trial was scheduled for October 22, 2012. Despite the Citys assurances that Thomer

was charged for violating O.R.C. 2917.11(A)(2) because of the volume of his voice, the City changed the charges just days before trial. 42. The trial was delayed until October 29, 2012 because the City again changed the charge

to a violation of O.R.C. 2917.11(A)(1), which prohibits individuals from recklessly causing inconvenience, annoyance, or alarm to another by engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior. 43. O.R.C. 2917.11(A)(1) requires some sort of violent or aggressive behavior by the

individual charged with the crime. 44. The Citation, Criminal Complaint, and Bill of Particulars contain no indication of violent

or aggressive behavior by Thomer. The City kept changing the charge, obviously attempting to find some way to make free speech criminal. 45. The City knew, or surely should have known, that they continued to prosecute Thomer

for conduct protected under the United States Constitution. In so doing, the City exhibited actual malice and flagrant disregard of Thomers Constitutional rights. 6 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

46. 47.

Thomer was tried before a jury beginning on October 29, 2012. None of the Citys witnesses testified that Thomer engaged in any violent or aggressive

behavior before being told to leave the Park by the Officers. Nor did any of the Citys witnesses testify that Thomer had shouted obscenities or walked into people. 48. Thomer called Allison Bruener and Dawn Baumgardner as witnesses. Dawn

Baumgardner had no previous relationship with Thomer or Bruener, but had been present when the Officers walked up to Thomer and had witnessed Thomers arrest. 49. Both Allison Bruener and Dawn Baumgardner testified that Thomer had not been acting

violently or aggressively nor had he been making unreasonably loud noises before being asked to leave the Park by the Officers. 50. Both Allison Bruener and Dawn Baumgardner testified that Thomer had not shouted

obscenities or walked into people. 51. At the trial, despite representations that Thomer was not charged for the content of his

speech, the City questioned Allison Bruener about the content of Thomers speech and their purpose for going to the Park. 52. After a four-day jury trial, Thomer was acquitted on the sole charge of violating O.R.C.

2917.11(A)(1), Disorderly Conduct, on November 1, 2012. 53. In all following counts, Thomer incorporates all allegations in paragraphs 152.

COUNT I VIOLATION OF CIVIL RIGHTS, 42 U.S.C. 1983 FOURTH AMENDMENT CLAIM FOR UNREASONABLE SEIZURE; FALSE ARREST AGAINST ALL DEFENDANTS
54. Defendants have, under color of state law, deprived Thomer of rights, privileges, and

immunities secured by the United States Constitution, including, inter alia, the Fourth, and Fourteenth Amendments to the United States Constitution. 55. Defendants Kreider and Hugley unlawfully detained Thomer by force. 7 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

56.

Defendants Kreider and Hugley deprived Thomer of his liberty without justification and

without probable cause. 57. 58. Defendants actions constituted an unreasonable seizure and false arrest of Thomer. As a result of Defendants actions, Thomer suffered substantial damages.

COUNT II STATE LAW CLAIM FOR FALSE ARREST AGAINST ALL DEFENDANTS
59. 60. Defendants Kreider and Hugley unlawfully detained Thomer by force. Defendants Kreider and Hugley deprived Thomer of his liberty without justification and

without probable cause. 61. As a result of the Defendants actions, Thomer suffered substantial damages.

COUNT III VIOLATION OF CIVIL RIGHTS 42 U.S.C. 1983 FOURTH AMENDMENT CLAIM FOR MALICIOUS PROSECUTION AGAINST DEFENDANT CITY OF CINCINNATI
62. Defendant City of Cincinnati, under color of state law, deprived Thomer of rights,

privileges, and immunities secured by the United States Constitution, including, inter alia, the First, Fourth, and Fourteenth Amendments to the United States Constitution. 63. Defendant City of Cincinnati maliciously instituted criminal proceedings, without

probable cause, against Thomer; and additionally continued to prosecute Thomer after knowing there was no basis for the prosecution. 64. 65. Defendant City of Cincinnatis actions constituted a malicious prosecution of Thomer. As a result of Defendants actions, Thomer suffered substantial damages.

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T HOMER v. C INCINNATI

COUNT IV STATE LAW CLAIM FOR MALICIOUS PROSECUTION AGAINST DEFENDANT CITY OF CINCINNATI
66. Defendant City of Cincinnati maliciously instituted and continued to prosecute Thomer

and without probable cause to do so. 67. Thomer was found not guilty of the sole charge filed against him, thus terminating the

court proceedings in his favor. 68. Because of the Citys actions, Thomer suffered substantial damages.

COUNT V VIOLATION OF CIVIL RIGHTS, 42 U.S.C. 1983 AGAINST DEFENDANT CITY OF CINCINNATI
69. Defendants have, under color of state law, deprived Thomer of rights, privileges, and

immunities secured by the United States Constitution, including, inter alia, the First, Fourth, and Fourteenth Amendments to the United States Constitution. 70. Defendants Kreider and Hugleys wrongful conduct was the direct result of policies,

practices, and customs allowing and encouraging arrests despite a lack of criminal conduct. 71. Defendant City of Cincinnati failed to establish adequate policies and procedures to

properly train and supervise Defendants Kreider and Hugley. 72. In particular, the City failed to adequately train or supervise the Officers regarding

individuals Constitutional rights to engage in free speech in public forums and their responsibilities when performing off-duty special event details. 73. Further, the City failed to adequately train or supervise the City lawyers who prosecuted

Thomer regarding individuals Constitutional rights to engage in free speech in public forums, and in the laws of the State of Ohio. That failure, along with a general City policy of refusing to dismiss charges even when its lawyers know, or should know, that the charges are bogus and Unconstitutional, resulted in Thomers being prosecuted for no reason, and with actual malice. 74. As a result of these actions, Thomer suffered damages. 9 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202

T HOMER v. C INCINNATI

DEMAND FOR RELIEF

PLAINTIFF THOMER asks this Court to: A. Grant compensatory damages against all Defendants in an amount to be determined at trial; B. Grant punitive damages against Defendants, as permitted by law, in an amount to be determined at trial; C. Grant Thomers reasonable attorneys fees and costs under 42 U.S.C. 1988; D. Grant Thomer a trial by jury; and E. Award such other and further relief as is just and necessary. Respectfully submitted,

Mark P. Painter
Mark P. Painter Timothy M. Burke James Cooney

__________________________

MANLEY BURKE, LPA

(0006111) (0009189) (0086527)

225 West Court Street Cincinnati, Ohio 45202 Telephone: 513.763.6755 Facsimile: 513.721.4268 painter@manleyburke.com

JURY DEMAND
Thomer demands a trial by jury.

_____________________________

Mark P. Painter
Mark P. Painter

10 MANLEY BURKE, LPA 225 WEST COURT STREET CINCINNATI, OHIO 45202