IN THE EUCLID MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

IN THE MATTER OF: ) CASE NO. 17 CRB 01464
) CASE NO. 17 TRD 02238
STATE OF OHIO )
(CITY OF EUCLID) )
)
v. ) MOTION TO DISMISS CRIMINAL
) COMPLAINTS DUE TO
RICHARD HUBBARD III ) OUTRAGEOUS GOVERNMENT
) CONDUCT
)

Comes Now Richard Hubbard III, by and through the undersigned counsel,

moving this Honorable Court in especially good faith to issue an order dismissing all of

the charges against Mr. Hubbard in this matter where the following circumstances

render the charges devoid of legitimacy. An evidentiary hearing is hereby requested.

May it please the court; the defendant brings the Court abreast as follows.

I. THE FACTS

1. The defendant was driving a vehicle registered to his girlfriend Ms.

Yolimar Tirado Caraballo, whom failed to possess at the time in question a valid permit

to operate a motor vehicle.

2. Officer Michael Amiott initiated a traffic stop based on a failure to stop

behind a stop bar, despite having been instructed by his commanding officers not to

initiate such a stop.
3. The vehicle the pair was in became subject of a traffic stop and it

eventually occurred that the police presumably decided to place the defendant under

arrest, citing him for driving under suspension.

4. Upon stepping out of the vehicle and tendering himself to the police as

directed, but before being notified that the reason he was being ordered from the car

was for the purpose of arrest, Officer Michael Amiott commenced an assault against Mr.

Hubbard.

5. Officer Michael Amiott’s actions during this fracas have caused him to be

suspended without pay. He has been formally charged with using excessive force,

conduct unbecoming of an officer, and insubordination.

6. Officer Michael Amiott is also the subject of a criminal investigation by the

Cuyahoga County Sheriff’s Department, as a result of his assault on Mr. Hubbard.

II. THE LAW

A. Outrageous Police Misconduct

Outrageous governmental conduct violates the due process clause of the Fifth

Amendment to the United States Constitution. See State v. Bolden, 2d Dist.

Montgomery No. 19943, 2004-Ohio-2315, ¶ 13. When police conduct is so egregious that

it violates principles of fundamental fairness, and shocks the universal sense of justice,

the government is barred from invoking judicial process to obtain a conviction. Id.

(citing United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366

(1973)). This defense is available only when government activity violates a protected

right of the defendant. Id.
The accused may put the conduct of the police officer at issue by arguing that

their conduct was so outrageous as to violate due process. Id. This conduct must be

addressed prior to trial, and is decided as a matter of law. Id., see also State v.

Cunningham, 156 Ohio App.3d 714, 2004-Ohio-1935, 808 N.E.2d 488, ¶ 15 (2d Dist.).

In evaluating an outrageous governmental conduct defense, the totality of the

circumstances must be evaluated based on the individual facts of the particular case.

Some courts have limited the defense to government conduct involving coercion,

violence, or brutality to the person. Id. at ¶ 22 (emphasis added; internal citations

omitted).

B. Elements of Resisting Arrest

501.16 RESISTING ARREST.
(a) No person, recklessly or by force, shall resist or interfere with a lawful arrest of
himself, herself or another.
(b) No person, recklessly or by force, shall resist or interfere with a lawful arrest of
the person or another person and, during the course of or as a result of the resistance or
interference, cause physical harm to a law enforcement officer.
(c) No person, recklessly or by force, shall resist or interfere with a lawful arrest of the
person or another person if either of the following applies:
(1) The offender, during the course of or as a result of the resistance or interference,
recklessly causes physical harm to a law enforcement officer by means of a deadly
weapon; or
(2) The offender, during the course of the resistance or interference, brandishes a
deadly weapon.
(d) Whoever violates this section is guilty of resisting arrest. A violation of division
(a) of this section is a misdemeanor of the second degree. A violation of division (b) of
this section is a misdemeanor of the first degree. A violation of division (c) of this
section is a felony to be prosecuted under appropriate State law.
(e) As used in this section, "deadly weapon" has the same meaning as in Ohio R.C.
2923.11.
(ORC 2921.33)
III. DISCUSSION

This Court should dismiss the charges against Mr. Hubbard based on the

brutality of the arresting police officers, which created the circumstances giving rise to

the charge of resisting arrest. Due to the shocking and unlawful conduct of the arresting

police officers, due process requires dismissal of all of the charges against Mr. Hubbard.

Finally, the objective facts and evidence clearly demonstrate that Officer Michael Amiott

used excessive force, which legally entitled Mr. Hubbard to defend himself from the

attack. Therefore, the specific charge of resisting arrest should be dismissed with

prejudice.

The brutality captured on video is so utterly shocking and appalling that the

entire world has taken notice and condemned this attack. In fact, Richard’s assault was

so excessive, that Officer Michael Amiott has been placed on unpaid suspension by not

only the Mayor of Euclid, but also his own Police Department. Officer Amiott has been

formally charged by Captain Kevin Kelly with violating rules, unbecoming conduct,

unsatisfactory performance, insubordination, and using excessive force. Exhibit A,

Captain Kevin Kelly’s Formal Charges Against Officer Michael Amiott. To quote Captain

Kelly exactly, he writes that: “By violating Policy and procedure, and exceeding the force

necessary to perform [his] duty, [Officer Michael Amiott] also violated Rule 10.54 Use of

Force.” Thus it is clear that Officer Amiott’s conduct in battering Mr. Hubbard was so

beyond the pale of normal procedure, that his brutality was so outrageous and unfair,

that it even shocks the conscience of his own Police Department.
Mr. Hubbard absolutely had a right to defend himself based on the excessive level

of force used against him. See Strongsville v. Waiwood, 62 Ohio App.3d 521, 529, 577

N.E.2d 63 (8th Dist.1989). It is worth noting that the U.S. Department of Justice,

through the National Justice Institute, provides guidelines relating to an

appropriate continuum of force. Exhibit B, DOJ Use of Force Continuum. It begins with

verbalization of an order, continues to open hand control, and escalates all the way up to

deadly force. Officer Amiott never even attempted to verbalize his commands to gain

compliance from Mr. Hubbard, he immediately escalated this police encounter to joint-

locking and hand-control; two measures which are appropriate only when an arrestee is

already resisting arrest. As such, Officer Amiott's use of force was excessive, as noted by

his supervising officers.

The relevant facts strongly indicate that the arresting officer’s created the crime

of resisting arrest. Had Officer Michael Amiott utilized the appropriate level of force to

arrest Mr. Hubbard, there would not have been any resistance on his part. To the extent

that Mr. Hubbard provided any resistance, it was only in deflecting blows being reigned

down upon him for no lawful reason. It is worth repeating that Officer Michael Amiott

has already been found to have used excessive force by his commanding officers, and is

currently the subject of a criminal investigation for this attack.

The conduct of the arresting officers has shocked the conscience of the Mayor of

Euclid, the Euclid Police Officer, the citizens of the United States, and international

observers as well. It is strongly within the purview and jurisdiction of this court to

dismiss all charges against Mr. Hubbard based on the outrageous conduct of these

police officers.
IV. Conclusion

For all of these reasons we move this Honorable Court to exercise both its equitable

and legal powers, and drop all of the charges against Ms. Richard Hubbard based on the

Outrageous Police Misconduct, which violates the Fifth Amendment's Due Process

Clause, as applicable to the State of Ohio through the Fourteenth Amendment to the

United States Constitution.

Respectfully submitted,

FORBES, FIELDS & ASSOCIATES CO., L.P.A.

________________________________________________
CHRISTOPHER MCNEAL, ESQ. #0096363
700 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113-1318
(216) 696-7170
(216) 696-8076 (facsimile)
cmcneal@forbes-fields.com

Counsel for Richard Hubbard III

CERTIFICATE OF SERVICE

A copy of the foregoing Motion to Dismiss was sent on this ___day of October, 2017, by

Fax, E-Mail, and Regular U.S. Mail to the following:

Mary Riley Casa
585 East 222nd Street
Euclid, OH 44123
Fax: (216) 289-2749
mcasa@cityofeuclid.com
Sara J. Fagnili
Walter Haverfield LLP
The Tower ar Erieview
1301 East Ninth Street, Suite 3500
Cleveland, OH 44114-1821
Fax: (216) 575-0911
sfagnilli@walterhav.com

________________________________________________
CHRISTOPHER MCNEAL, ESQ. #0096363

Counsel for Richard Hubbard III