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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
May it please the court; the defendant brings the Court abreast as follows.
I. THE FACTS
Richard Hubbard, whom failed to possess at the time in question a valid permit to
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
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
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
6.
Outrageous governmental conduct violates the due process clause of the Fifth
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
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.).
circumstances must be evaluated based on the individual facts of the particular case.
Some courts have limited the defense to government conduct involving coercion,
omitted).
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
delay the performance by a public official of any authorized act within the public
officials official capacity, shall do any act that hampers or impedes a public official in
(b) Whoever violates this section is guilty of obstructing official business. Except as
second degree. If a violation of this section creates a risk of physical harm to any
law.
(ORC 2921.31)
turbulent behavior;
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. Tirados excited lamentations for the officers to cease this attack were not
The brutality captured on video is so utterly shocking and appalling that the
entire world has taken notice and condemned this attack. In fact, Richards 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,
Captain Kevin Kellys 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 Amiotts conduct in battering Mr. Hubbard was so
beyond the pale of normal procedure, that his brutality was so outrageous and unfair,
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
and escalates all the way up to deadly force. Officer Amiott never even attempted to
escalated this police encounter to joint-locking and hand-control; two measures which
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
Because Officer Amiott's attack on Mr. Hubbard was unlawful, Ms. Tirado can
arrest is lacking. Furthermore, because Ms. Tirado had a privilege to come to Mr.
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
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
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
Respectfully submitted,
________________________________________________
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
A copy of the foregoing Motion to Dismiss was sent on this ___day of October, 2017, by
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