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IN THE EUCLID MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

IN THE MATTER OF: ) CASE NO. 17 CRB 01462
) CASE NO. 17 TRD 02240
STATE OF OHIO )
(CITY OF EUCLID) )
)
v. ) MOTION TO DISMISS CRIMINAL
) COMPLAINTS DUE TO
YOLIMAR TIRADO CARABALLO ) OUTRAGEOUS GOVERNMENT
) CONDUCT
)

Comes Now Yolimar Tirado Caraballo, by and through the undersigned counsel,

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

obstruction of justice and disorderly conduct charges in this matter where the following

circumstances render that charge devoid of legitimacy.

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

I. THE FACTS

1. The defendant was a passenger in an automobile driven by her boyfriend,

Richard Hubbard, whom failed to possess at the time in question a valid permit to

operate a motor vehicle.

2. The vehicle the pair was in became subject of a traffic stop and it

eventually occurred that the police decided to place the driver under arrest, citing him

for driving under suspension.
3. 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 (who has since been suspended for

malfeasance in connection with this matter) commenced an assault against Hubbard.

4. The defendant responded to this egregious scene by herself getting out of

the vehicle so as to obtain video footage of the outrageous conduct of Officer Michael

Amiott. Defendant at no time attempted to engage herself in the melee, but kept safe

distance and only verbally begged the Officer to cease discontinue the assault.

5. Upon police realizing that the defendant was taping the criminal

malfeasance, the defendant herself became subject to unlawful arrest. It is clear that the

motive of the officers in arresting the defendant was a self-serving attempt to offset the

effects of the recording the defendant had obtained, which recording would inevitably

come out. It did.

6.

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. Lawful Protest and Intervention

The Sixth Circuit recognizes the existence of a First Amendment right to openly

film police officers discharging their duties in public. See Crawford v. Geiger, 131 F.

Supp. 3d 703, 715 (N.D.Ohio 2015). Also, it is axiomatic that a person has a right to

defend himself from an illegal arrest if the police used excessive or unnecessary force in

making the arrest. See Strongsville v. Waiwood, 62 Ohio App.3d 521, 529, 577 N.E.2d

63 (8th Dist.1989). A third party also has a right to use force in aid of a victim, who

themselves would have a right to use force in self-defense under the circumstances. See

State v. Wenger, 58 Ohio St.2d 336, 341, 390 N.E.2d 801 (1979).

C. Elements of Obstruction

501.14 OBSTRUCTING OFFICIAL BUSINESS.
(a) No person, without privilege to do so and with purpose to prevent, obstruct, or

delay the performance by a public official of any authorized act within the public

official’s official capacity, shall do any act that hampers or impedes a public official in

the performance of the public official’s lawful duties.

(b) Whoever violates this section is guilty of obstructing official business. Except as

otherwise provided in this division, obstructing official business is a misdemeanor of the

second degree. If a violation of this section creates a risk of physical harm to any

person, obstructing official business is a felony to be prosecuted under appropriate State

law.

(ORC 2921.31)

D. Elements of Disorderly Conduct

545.04 DISORDERLY CONDUCT.

(a) No person shall recklessly cause inconvenience, annoyance, or alarm to another, by

doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or property, or in violent or

turbulent behavior;

(2) Making unreasonable noise or an offensively coarse utterance, gesture, or

display, or communicating unwarranted and grossly abusive language to any person . . .

III. DISCUSSION
This Court should dismiss the charges against Ms. Tirado based on the brutality

of the arresting police officers, which created the circumstances given rise to the charges

of obstruction of official business and disorderly conduct. Ms. Tirado had a right to

lawfully protest and film the appalling and unlawful assault being carried out by the

arresting police officers against her significant other. Due to the shocking and unlawful

conduct of the arresting police officers, the charge of obstruction of official business is

untenable. Finally, the objective facts do not support a charge for disorderly conduct, as

Ms. Tirado’s excited lamentations for the officer’s to cease this attack were not

unreasonable under the circumstances.

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, supra. 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.

Since Mr. Hubbard has a right to use reasonable force to defend himself, so too

did Ms. Tirado. See State v. Wenger, supra. Moreover, Ms. Tirado had a First

Amendment Right to record the arresting police officers in their official duties. See

Crawford v. Geiger, supra. Ms. Tirado did nothing unlawful. Ms. Tirado did not even

exit the vehicle, until her boyfriend, Mr. Hubbard, was already being viciously assaulted.

Her intent was merely to save his life, and not have him suffer the same fate as Luke

Stewart, as Tamir Rice, as Michael Garner, as Philando Castille, and all of the countless

black victims of police brutality. Facts do not exist in a vacuum.

Because Officer Amiott's attack on Mr. Hubbard was unlawful, Ms. Tirado can

not be guilty of Obstruction of Official Business, as the necessary element of a lawful

arrest is lacking. Furthermore, because Ms. Tirado had a privilege to come to Mr.

Hubbard's aid in self-defense, she absolutely had a privilege to intervene as a matter of

law. For both of these reasons, this Obstruction charge is outrageous.

Similarly, Ms. Tirado's lawful protest in recording this outrageous police conduct

was well within her First Amendment rights, and reasonable under the circumstances.
Again, Mr. Hubbard's life was in jeopardy as a result of the reprehensible and illegal

conduct of the arresting officers. It is objectively reasonable for a significant other to

come to aid of their loved one under these circumstances. Ms. Tirado did not make any

physical contact with the arresting officers; she recorded this assault from a safe

distance, never made any threats to the officers, and merely begged for them to cease

their assault on Mr. Hubbard. Because her actions were not unreasonable, the charge of

Disorderly Conduct is fatally deficient.

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. Yolimar Tirado 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 Yolimar Tirado Caraballo
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 Yolimar Tirado Caraballo